manding officer; he can not recover back the money paid, upon the ground that the defendant, after repairing to the place of rendezvous, and commencing the march, was discharged as a supernumerary, and therefore never performed the tour of duty. Keys v. MFatridge, p. 18-20.

4. A plaintiff in assumpsit is entitled to recover upon a parol agreement of the defendant, that, if the plaintiff would furnish and supply a certain married woman and her infant children, with board, washing and lodging for a certain time, he the defendant would pay him for it; averring and proving, that he furnished the board, washing and lodg ing, accordingly: and this, although the woman's husband be in the Commonwealth at the time and bound to furnish her and the children with necessaries; and the defendant be not morally nor legally bound, but by his said promise. Lanier v. Harwell, p. 79–81.

5. In assumpsit, the testimony of witnesses, offered to prove the items in the plaintiff's account, ought not to be excluded from the Jury upon the ground that, in an action of debt between the same parties, (the record of which action is not exhibited,) determined during the pendency of the action of assumpsit, one of those witnesses was examined touching the same items claimed by the plaintiff, to repel or set-off the credits then claimed by the defendant. Robertson v. Depriest, p. 469–470.

6. In assumpsit upon a written agreement, an express promise ought to be laid in the declaration: a mere recital of the writing, though a true copy, is not sufficient, Woody v. Flournoy, p. 506– 510.

7. The declaration was upon a general indebitatus assumpsit, for the hire of five slaves, for which the defendants, being co-partners, promised, on the 1st of January 1811, to pay the plaintiff the sum of $350, when they should be thereunto afterwards required:-the plaintiff could not recover upon a writing signed by one of the defendants, certifying that he had hired of the plaintiff five slaves at the price of $350, and that this should entitle the plaintiff to the other defendant's bond for the same, payable on the 1st of January 1811. Ib.

ATTACHMENTS.

1. Case for malicious prosecution, and not trespass vi et armis is the proper ac

tion against a person who,maliciously and without probable cause, sues out an attachment, and causes it to be levied on the property of another. Shaver v. White & Dougherty, p. 110-114.

2. It seems, that, upon an attachment for a debt claimed as due from one copartner, the Sheriff must seize all the partnership effects, and sell a moiety thereof undivided; in which case, the vendee will be tenant in common with the other partner: for, if he seized but a moiety, and sold that, the other partner would have a right to a moiety of such moiety. Ibid.

3. Agreeably to the practice in this state, a Subpoena in Chancery with an endorsement thereon, "to stop the "effects and debts of the absent de"fendants within the State," (mentioning their names,) "to satisfy a debt due "from the absent defendants to the "plaintiff," operates, from the time of the service of that process on the defendants within the State, as an attachment to stop the payment by them of monies due from them to the absent defendants, and to inhibit a transfer thereof from the said absent defendants to other persons. Williamson & others v. Bowie, 176-180.

4. An Attachment in Chancery lies to secure a debt payable at a subse. quent day, or to relieve the endorser of a note which has not become payable at the date of such attachment, which binds the property in the hands of the garnishee, from the time of it's service, so as to inhibit the absent defendant's making a transfer thereof, even for the benefit of a creditor whose claim is already due and payable. Ibid.

5. A creditor residing in Maryland, may sue out an attachment in Chancery in Virginia, against his debtor, residing also in Maryland, and others residing in Virginia, indebted to, or having in their hands effects of, such debtor. Ibid.

6. In a suit against a Constable for breach of duty in not delivering to the Sheriff, in obedience to the Court's order, attached effects in his hands, testimony on his part to prove that any of those effects were not the property of the person against whom the attachment issued, and therefore, after being taken, were by him given up, is not admissible. Smith (Lieutenant Governor) v. Cooper, p. 401-405.

7. To such action, if the Constable plead, that the plaintiff in the attachment, having taken from a certain I. B.

a bond for the delivery of the attached 'effects, afterwards directed him to give them up to the debtor, with which direction he complied; he cannot introduce the said 1 B. as a witness to prove it. Smith v. Cooper, p. 401-405

8. If the claim of the plaintiff, in an attachment against an absconding debtor, be stated as for a certain sum, due by negotiable note, with interest from the day when such note should have been paid; and the bond for prosecuting the attachment describe it, as sued out for the sum of money mentioned therein; (saying nothing of interest;) the variance is not material. Smith v. Pearce, p. 585-587.

9. Special bail, to replevy the attached effects, and a plea to the action ought to be received, in behalf of the defendant, upon an attachment issued against him as an absconding debtor; notwithstanding he did not (when solemnly called,) appear in person or by attorney; such bail and plea being offered at the term to which the attachment is returned executed, and before the judgment upon it is pronounced. Ibid.

ATTORNIES IN FACT.

1. If A. give a power of Attorney, in due form, to B., authorising him "to "draw checks, indorse notes, and general666 ly to do all and every act and deed, towards the execution of his business at a certain bank;" and deposit the said power in the bank, to be inspected, when called for, by any person interested in matters relating thereto; he is bound to make good, to a bona fide pur chaser for valuable consideration, any indorsement of a note negotiable at the said Bank, which B. may make in his name as his Attorney; notwithstanding the real object of the said power, verbally declared at the time of it's execution, was to authorise B, to renew certain accommodation paper then in Bank, and not to indorse any other paper. Mann v. King, p. 428-430.

AVERMENTS.

1. The assignee of a bond can not re, cover against the assignor, upon a declaration stating that the plaintiff brought suit, and obtained a judgment, which was injoined, upon a Bill claiming equitable discounts of certain dealings and transactions between the obligor

and the assignor before the assignment; and that the plaintiff was thereby entirely debarred from collecting the debt; without stating that the Injunction was made perpetual or what proceedings took place thereon. M Clung v. Arbuc kle, p. 315-316.

2. An action against a Collector of poor rates, upon his bond to the Overseers of the poor, can not be maintained without an averment in the declaration that the plaintiff's are Overseers at the time of the institution of the suit. Horten & others v Haymond and others, p. 399– 401.

3. In declaring upon a bond given by a public officer to the Governor and his successors, conditioned for faithful performance of official duty, it is not necessary to aver the non payment of the pe nally to the obligee, or his successors, by any of the obligors. Smith (Lieutenant Governor,) v. Cooper, p. 401-405.

AWARDS.

1. Although infants are bound by judgments had under the superintendance and protection of the Court, yet, where the case is referred to arbitrators, whereby they are deprived of that protection, a submission, even by rule of Court, ought not to be sanctioned, even though the award be in their favour. For, as awards are in the nature of judg ments, and are to be final and conclusive, which cannot be where one party has a right to avoid them; it follows that a submission by infants, although with adults, can not be obligatory on either party. Britton v. Williams's devisces, Pr 453-454.

B.

BAIL.

1. A plea of non est factum, in behalf of a person returned as appearance bail, who denies that he ever executed the bail bond, is regular and proper.Spotswood v. Douglas, p. 312-313.

2. A person returned as appearance bail, who denies that he ever executed the bail bond, is not precluded from obtaining relief in equity, by his failing to appear and plead non est factum at law, after being informed that his name was subscribed to such bond; for if, in fact, he did not execute the bond, he had regularly no day in Court, and was therefore not bound to take any step for his

relief in the action at common law.Spotswood v. Higginbotham, p. 313-315.

3. The officer who returned the writ and bail bond, ought, as well as the plaintiff at law, to be made a party defendant to a Bill of Injunction filed by the person returned as bail, who denies that he ever executed the bond; for the Officer is interested in the question in controversy, and should be a party, that final and complete justice may be done,

Ibid.

4. Special bail, to replevy the attached effects, and a plea to the action, ought to be received, in behalf of the defendant, upon an attachment issued against him as an absconding debtor; notwith. standing he did not (when solemnly called,) appear in person or by attorney; such bail and plea being offered at the term to which the attachment is returned executed, and before the judgment upon it is pronounced. Smith v. Pearce, p. 583-587.

BANKS.

1. The bona fide owner of a bank note, having transmitted one half thereof by the mail, which has been stolen therefrom, or is lost, can not demand payment from the bank of any part of it's amount, in consequence of holding the retained half merely; but he is entitled to demand the whole amount of the said note, on satisfying the bank of the verity of the above facts, or establishing them by the judgment of a Court of Equity, and giving, in either case, a satisfactory indemnity, to secure the bank against fu ture loss, from the appearance and setting up, of the other half of such note. The Bank of Virginia v. Ward, 166–169.

BAR.

1. No verdict and judgment in Ejectment, can be relied on as a bar to a subsequent Ejectment; though for the same land, and between the same defendants and lessors of the plaintiffs; the fictitious plaintiffs being not the same. Pollard v. Baylors & others, p. 433-439.

2 A judgment for the defendant, upon pleadings not going to the foundation of the action, is no bar to the plaintiff's bringing another action for the same cause. Lane v. Harrison, p. 573–580.

BARGAIN AND SALE.

1. A deed of bargain and sale and release of land, from a person not in pos

session, to another in the same predicament, (the land being, at the time, held by a third person with adverse title,) passes nothing, and therefore does not divest the bargainor of his right to recover in Ejectment. Hopkins & Watsonv. Ward, p. 38-41.

2. Three demises were laid in a dec laration in Ejectment; one, from the Patentee of the land who was dead; another from his heirs; and a third from a person to whom they had executed a deed of bargain and sale. The plaintiff recovered on the second demise; though not on the first or third. See v. Greenlee, p. 303-304.

BASTARD CHILDREN.

1. The Superior Courts of law have jurisdiction to grant Writs of Supersedeas to orders of the County or Corporation Courts, binding persons accused of being fathers of bastard children, to support such children; and the Court of Appeals, in like manner, has jurisdiction. to correct errors in the decisions of the Superior Courts of law on the same subject. Mann v. the Commonwealth, p. 452453.

2. A person accused of being the father of a bastard child, can not lawfully be bound to support such child, without a written charge before the magistrate, by it's mother; nor unless it appear that the warrant was issued by the magistrate upon the application of the Overseers of the poor, or one of them, or that they, or one of them, were parties to the cause in the Court making the order against such person. Ibid.

BILLS IN CHANCERY.

1. Where the Bill in Chancery is defective, not only for want of proper parties, but in other respects, so that no decree for the plaintiff can be entered, a decree dismissing the Bill altogether, ought to be affirmed:-but, if it appear probable, that something might be recovered upon a new bill properly drawn, such affirmance should be without preju dice to any other suit the plaintiff' may be advised to bring. Stott & others v. Baskerville & others, p. 20-23.

2. A point similar to that in Hough v. Shreeve, 4 Munf. 490, again decided; viz, that a bill of Injunction ought not to be dismissed at the next term after dissolution, (under the 3d section of the Act of January 20th, 1804,) if such Bill

have other objects besides those embraced by the Injunction. Singleton v. Lewis & others, p. 397-398.

BILLS OF EXCEPTIONS.

1. Upon the Court's overruling a defendant's motion for a new trial, if he file a bill of Exceptions to such opinion; stating all the facts proved to the Jury; from which it appears that, upon the merits, the plaintiff ought not to recover; the judgment ought to be reversed, and a new trial granted. Keys v. M'Fatridge, p. 18-20.

2. If a motion for a new trial on the ground that the verdict is contrary to evidence, be overruled, a bill of exceptions to the Court's opinion ought not to state all the evidence given in to the Jury, but only the facts appearing to the Court to have been proved. Bennet v. Hardaway adm'r of Jones, p. 125132.

BILLS OF EXCHANGE.

1. The payee of a draft or order, purporting to be for money lodged by the drawer in the drawee's hands, belonging to such payee, may recover of the drawer upon the drawee's refusing payment; (timely notice of such refusal being given;) though such draft or order be not negotiable as a bill of exchange; being drawn on a particular fund, not in favour of the payee "or order," nor, in terms, for value received. Jolliffe v. Higgins, p. 3-6.

2. If the drawe of a protested bill of exchange, being applied to, in behalf of the holder, for payment, acknowledge the debt to be just; and promise to pay it; saying nothing about his having received notice; the holder, in an action of debt upon the bill, against such drawer, is not bound to prove that notice was given him of the protest. Walker v. Laverty & Gantley, p. 487-488.

BILLS OF REVIEW.

1. A Bill of review to a decree pronounced before the 11th of February 1814, (see Acts of 1813, c. 12. § 3,) could not be received after five years had elapsed from the date of such decree. Shepherd v. Larue &c., p. 529–

531.

2. It is not necessary to plead the act of limitations against a bill of Review; for it ought to appear, in the Bill itself,

that it is exhibited within the time prescribed by law; or that the complain. ant is protected by some of the savings in the act; otherwise it ought not to be received. Ibid.

3. In such case, if the fact alledged to prevent the operation of the act, be not true, it may be denied by the an swer of the other party; and, on the proofs, (if in his favour,) the bill of review should be rejected. Ibid.

4. It is not a sufficient ground for a bill of review, that certain documents on which the Complainant's right to a decree depended, and which he intended to exhibit with his original bill, were lost or mislaid by his Counsel, and not found until after the decree against him. Jones v. Pilcher's devisees, p. 425 427.

BILLS OF SALE.

1. A Bill of sale of personal property. (not being necessary to pass the title,) need not be shewn in evidence by per sons claiming under the grantee, in a controversy between them and the grantor, or those claiming under him; for they may prove, by any other legal evidence, a title in the person under whom they claim; and such grantee, or his representatives, may prove their title by other evidence than the Bill of sale, unless it be alledged that such Bill of sale contains other matter than the mere transfer of the property, (and of which the grantor, or those claiming under him might avail themselves,) and notice be given to produce it; but in neither case can the substance or contents of the Bill of sale be given in evidence without due affidavit by the party, or other satisfactory proof, of it's loss, or that it is not in the power of the party so offering the evidence. Givens v. Manns, p. 191–202.

BONDS.

1. Where an obligee covenants not to sue one of two joint and several obligors, (and, much more, where he binds himself not to sue him for a limited time only, this does not amount to a release, but to a covenant only; and he may still sue the other obligor at law. Ward v. Johnson, p. 6-9,

2. The right of the assignee of a bond to demand payment thereof in a Court of Equity, which existed before the Statute authorizing him to sue at law in

his own name upon the assignment, is not impaired by that Statute; but the latter remedy is cumulative and additional to the former. Winn v. Bowles, p. 23-25.

3. In an action upon a bond for prosecuting an Injunction to stay proceedings on a judgment at law for a debt bearing interest; which injunction is dissolved and the Bill dismissed; the plaintiff is entitled to a verdict for the amount of the principal sum with lawful interest to the time of finding such verdict, the costs at law and in Chancery, (costs be. ing awarded to the plaintiff by the decree,) with damages on the said principal sum at the rate of ten per centum per annum during the pendency of the injunction; although the condition of the bond be for payment of "the judg ❝ment, and costs of the injunction (if rul"ed to be paid by the complainant,) "without mentioning damages" Fox & Vowles v. Mountjoy, p. 36-37.

4. If a bond be given in the usual form, for a penalty, conditioned to be dis. charged by payment of the principal at a future day, "with interest from the date if not punctually paid, such back-interest is to be considered an additional penalty, and not recoverable. Waller v. Long 71-79.

5. The Clause in our Act of Assembly (R. Code of 1819, Vol. 1st, p. 509,) which prescribes the sum for which judgment is to be rendered on a bond, meant that, in cases of penalties by way of security, the final justice of the case should be attained in the Courts of law; in effectuating which object, those Courts are to be governed by the same considerations which influence the Courts of Equity. Ibid.

6. A Bond from the deputy to the High Sheriff, conditioned for the faithful performance of his duty as deputy, "during his continuance in office," without specifying the length of time, is binding on him and his sureties for the transactions of one year only. Munford v. Rice, p. 81-83.

7. In debt on a bond, if the defendant plead that the same was obtained by false suggestions and misrepresentations by the plaintiff, " as per preamble in the said bond," and the plaintiff join issue as to the fact, which issue is found against him by a Jury; whatever estoppel (if any) might have been to such plea, is thereby waived, and judgment ought to be for the defendant. Chew executor of Vormley v. Moffett & wife, p. 120–123. YOL. VI.

76

8. Issue being joined on a plea that a bond was obtained by fraud, a Verdict, "for the defendant, because the Jury "believe the bond was obtained by fraudulent means," is sufficiently positive and certain. Ibid.

9. According to the practice in oun Courts of Equity, it seems that a Bill to set up a lost bond, need not be supported by the plaintiff's affidavit. Cabell's ex'ors v. Megginson's adm3rs. p. 202–207.

10. The vendor of a slave gave a bond to the buyer, with a condition, reciting that, whereas he had sold him a slave for a certain sum of money, if, therefore, the buyer should pay the said sum, and another sum annually for hire of the said slave, until he should pay the said purchase money; which he might do at any time, (when the said hire should cease;) then the vendor should convey to him a lawful right and title to the said slave; which title in the mean time should remain in the vendor. The buyer was not entitled, under this bond, to the possession and property of the slave, but the vendor could recover in detinue. Ervine v. Dotton, p. 231–232.

11. A plea of non est factum, in behalf of a person returned as appearance bail, who denies that he ever executed the bail bond, is regular and proper. Spots wood v. Douglas, p. 312–313.

12. An action of debt may be brought upon a three months replevy bond for rent, though it give back interest from the time when the rent became due, and not merely from the date of the bond; which circumstance, the Court were inclined to think makes it not a good bond under the Statute. Early v. Owen, p. 319320.

13. If, to a declaration in debt on a bond for making a title to a tract of land, the defendant plead "covenants performed," and a verdict and judgment be rendered, (as in covenant,) for damages for non-performance; saying nothing of the penalty of the bond; such judgment ought not to be reversed at the instance of the defendant; for such irregularity can not be injurious to him; because the true ground of the action appears by the declaration, and the satisfaction thereby demanded extending the whole injury, the action can in no form be repeated. Pate v. Spotts, p. 394-397.

14. In debt on a bond, conditioned that the obligor shall make a title to a tract of land, when thereunto lawful y required; if the defendant plead covenant performed, and issue be joined there.