ment alledged, or to prove one different, but say in their answer that they are willing to yield to the proof of any agreement which the plaintiff can establish. Ibid.

34. Where a defendant, who had an adequate remedy at law, has been prevented from resorting to it, by a fraudu lent representation or promise of the plaintiff, he ought to be relieved in equity. Poindexter v. Waddy, p. 418422.

35. See INJUNCTIONS; Ibid.

36. See BILLS OF REVIEW; Jones v. Pilcher's devisees, p. 425–427. 37. See DEPOSITIONS; Dunbar, p. 430–451.

38. See EXHIBITS; Ibid.

Shumate v.

39. It seems, hat, where the annual rent of land descended, is more than sufficient to pay the interest accruing on a bond debt of the ancestor, a Court of Equity will not decree a sale of such land, in possession of his heirs, to satisfy the debt; the land being not subject to any specific lien, or incumbrance, in favour of the creditor. Wilders v. Chamblis's adm'x & heirs, p. 432–433.

40. See EVIDENCE; Bumgardner & others v. Allen, p. 439–447.

41. A plaintiff claiming an equitable title to a tract of land, against the heirs of a trustee, (in whom the legal title was by virtue of an ancient patent,) and against the heirs of a third person who have held possession for a long time by virtue of a patent of subsequent date, ought not to be denied the aid of a Court of Equity on the ground of his not producing the Entry, on which such ancient patent was founded; if it appear that the land in controversy was covered by that patent; as to which fact, if the testimony be doubtful, an issue ought to be directed, to be tried by a Jury. Boyd & wife v. Hamilton's heirs p. 459-462.

42. It seems, that a Bill in Equity properly lies to subject the estate of a secret partner in trade to the payment of a debt contracted by the ostensible members of the firm. Cocke v. Upshaw & Pritchett ex'or of Burnett, p. 464465.

43. In such case, if the fact of the secret partnership be doubtful on the testimony, the Court should direct an issue to ascertain it. Ibid.

44. In a Court of Equity, several mortgages, though appearing, upon their face, to be for distinct debts, will, VOL. VI. 78

under circumstances, be considered as merely additional evidences of, and securities for, one original debt. Anderson's adm'r v. Davies's adm'r, p. 484486.

45. Quare, whether it be regular, in a decree for sale of mortgaged premises, to direct the proceeds of such sale to be paid over to the plaintiff, before the sale shall have been confirmed by the Court? Ibid.

46. Under circumstances, inducing suspicions that a bond (on which a judg ment at law had been obtained against an executor) was counterfeit or fraudu lent; upon a Bill filed by the Executor, relief was given in equity, by directing an issue to try whether the bond in question was the deed of the testator or not; and, if so, what was the consid eration on which it was founded; and this, notwithstanding the trial at law was upon the plea of payment put in by Counsel, and a new trial moved for by the Complainant was refused by the Court; it being alledged in the Bill that the complainant's suspicions of fraud were, for the first time, excited on the trial at law; and then, on a minute examination of the paper, he was convinced that the signature of his testator's name thereto was not genuine; which conviction was strengthened by other circumstances, some of which were known to him at the trial, and some afterwards. West's ex'or v. Logwood, p. 491-506.

47. See PARTIES; Mayo v. Tomkies, p. 520-528.

48. See MonTGAGES; Ibid.

49. The general principle laid down in the case of Noland v. Cromwell, 4 Munf. 155, does not apply to a case in which the rights of the parties can not be adjusted in the Court of Caveat, but the aid of a Court of Equity is necessary to give to each his proper share of the land, for which one has improperly obtained a Patent. Christian's devisee v. Christians, p. 534-541.

50, See PARTITION; Ibid.

51. In a suit in Chancery to recover a tract of land claimed by equitable title, and for other objects, if it appear that some of the defendants are entitled to a moiety of the land, by an equitable title adverse to that of the other defendants; the Court should permit them to unite as plaintiffs in the suit, to claim such moiety. Ibid.

52. A Creditor, by threatening to have execution levied, induced the debtor to allow him fifteen per centum per annum upon the debt, and to give a bond as principal obligor, in which the creditor joined as surety, payable at a future day, to a third person, to whom the amount was bona fide due, and who knew nothing of such usurious agreement. The debtor was entitled to no relief in equity against such innocent third person; not even by a decree to compel the Usurer to pay him the debt, in discharge of the complainant. Stone v. Ware & Smith, p. 541-560.

53. The usurious arrangement being proved; and the bill not exhibited for a discovery; the Court gave relief against the usurer, upon the terms of the debtor's paying him the principal justly due, with legal interest. Ibid.

54. See APPEALS; Ibid.

55. See SHERIFFS; Tomkies' ex'or v. Downman, p. 557,

ERROR.

1. Upon a scire fucias against heirs and devisees, to revive a judgment in ejectment, if one of the defendants confess the plaintiff's right to revive the judgment in the scire facias mentioned; and thereupon, judgment be entered against him, that the plaintiff have execution for the whole tract of land in question; there is no error in such judg ment of which he can take advantage. Jones v. Doe lessee of Carter, p. 105

2. 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 to the whole injury, the action can in no form be repeated. Pate v. Spotta, p. 394-397.

ESTOPPEL.

1. 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 ex'or of Wormeley v. Moffett & wife, p. 120-123.

2. A defendant, being party or privy to a deed, can not avoid it, in a Court of common law, by parol evidence, on the ground of want of consideration, for he is estopped from averring such matter against a specialty. Taylor v. King, p, 358-367.

3. A purchaser from a person who has previously conveyed the estate to a trustee, by deed duly recorded, is estopped at law though not in equity, from impugning, on the ground of fraud, a deed regularly executed by the trustee, to a purchaser from him. Ibid.

2. A charge by a trustee, for articles sold, and cash lent, before the creation of the trust, ought not to be allowed, without proof thereof by disinterested testimony. Beverleys v. Miller, p. 99– 104.

3. It appears, from the decree in this case, that the points decided by Chancellor TAYLOR, Concerning the evidence requisite to prove disbursements by a trustee in execution of the trust, and as to disbursements made without the consent of co-trustees, were affirmed by the Court of Appeals. Ibid

4. In debt on a joint obligation, to which the defendants plead payment, they can not give in evidence a Covenant between one of the plaintiffs and one of the defendants, with parol testimony that the plaintiff's settled with that defendant, who was the principal debtor, and in such settlement kept their accounts separately; that each was entitled to one moiety of the debt; that the defendants gave notice that a dis

count would be claimed by them on account of said covenant; and that the plaintiff who was party to the covenant, said that the same was not settled, and that he intended to allow a credit for it. Arnold v. Jacksons, p. 106-107.

5. Proof by one witness, that, on a certain day, in the time of the last sickness of the deceased, and at his habitation, he said it was his wish that a certain person should heir all his property; and, by a second witness, that on another day during the same sickness, and at the same place, he heard the deceased speak the same words, and was told by him to take notice of what he said, is not sufficient to establish a nuncupative will, if the value of the personal property of the deceased exceed thirty dollars. Weeden v. Bartlett & others, p. 123-125.

6 A person, who has had possession of slaves more than five years before the date of a deed of emancipation from another who previously was their owner, has a right, in opposition to their suit for freedom, to prove by the acknowledgment of such owner, made before execution of the deed, or by any other legal evidence, that such possession of his was adverse to the claim of such owner; but not by any such acknowledg. ment made thereafter. Givens v. Manns, p. 191-202.

7. If a proprietor of slaves deliver them to another, who thereupon claims them, as sold; any declarations made by the former, not in the presence of the latter, and after such delivery of possession, are not admissible as evidence in opposition to such claim. Ibid.

8. A deed of emancipation recorded in a District Court, is not so authenticated as to be lawful evidence in a suit for freedom. Givens v. Manns, p. 191202.

9. A Bill of sale of personal property, (not being necessary to pass the title,) need not be shewn in evidence by persons 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 un

der 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. Ibid.

10. It seems, that a deposition taken de bene esse, by two magistrates, and with due notice, (it appearing that an order of Court was made awarding a commission to take it, and that the Clerk charged a fee for issuing the commission,) may be read as evidence; on proof of inability of the Witness to attend; notwithstanding there be no other proof that it was taken by virtue of a Commission delivered to the magis trates, (no commission being found among the papers,) and it be returned to the Clerk's office open and unsealed, but without being shewn to have been erased or altered. Ibid.

11. The deposition of a person under whom the party claims, in whose favour it is offered, is not admissible as evidence, unless it appear from the deeds that no recourse can be had against the witness in case of eviction; and this, though a release to the witness be executed by such party, before the deposition is read to the Jury, but after it was taken; and though, at a former trial of the cause, before the deposition was taken, a release was tendered, in the presence of the Court, by another person (under whom such party immediately claimed,) of all claim which such other person might have, in any event, against the witness, on account of the subject in controversy; the necessity of which release from that person was at that time agreed to be waived by the opposite party. Woodward v. Woodson's heirs, p. 227–229.

12. A patent, which is free from objection upon it's face, can not be impeached in a trial at law, upon any evidence, but that of a prior Patent remaining in full force. Norvell v. Camm & Wife, p. 233–245.

13. Evidence offered to the jury, and properly applying to the issue joined, ought not to be rejected on the ground of objections to the declaration. Preston v. Bowen, p. 271–277.

14. In a Court of common law, fraud may be given in evidence, to vacate a deed, on the plea of non est factum; if

such fraud relate to the execution of the instrument; as, if it be mis-read to the party, or his signature be obtained to an instrument which he did not intend to sign; but fraud committed in a settle. ment of accounts which preceded, or in a statement of facts which induced, it's execution, can not be pleaded or given in evidence; the only remedy, in such cases, being in equity. Taylor v. King, p. 358-367.

15. 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.

16. 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 can not introduce the said I. B. as a witness to prove it. Ibid.

17. Although the rule is, that the allegata and probata ought to correspond, yet the Court of Equity should always incline to get over form, in favour of substance, where the case in proof is clearly such as would, if properly set forth in the Bill, entitle the plaintiff to a decree; especially, if the defendants do not pretend to disprove the agreement alledged, or to prove one different, but say in their answer that they are willing to yield to the proof of any agreement which the plaintiff can establish. Zane's devisees v. Zane. p. 406–417.

18. Notwithstanding a clause of general warranty in a deed for land, a Court of Equity will receive parol testimony to prove that such clause was contrary to the actual agreement, by which the land was to have been conveyed with spe cial warranty only; the written agree. ment of the vendor to make the conveyance, not being produced on the part of the vendee, to whom it was delivered. Bumgardner & others v. Allen, p. 439-447.

19. A motion for a new trial, on the ground that the verdict is contrary to evidence, ought to rest on the evidence actually given in at the trial, exclusive

20. In an action for words, proof of circumstances of suspicion, not amounting to full justification, is not admissible, in mitigation of damages, on the plea of not guilty. M.Alexander v. Harris, p. 465 469.

21. Proof of parol declaration by the defendant, after the institution of the suit for slander, that he did not mean to charge the plaintiff with the crime alledged by the slanderous words, or that the words were spoken in heat of passion, is not admissible in his favour. Ibid.

22. The defendant in the action of slander, is not to be permitted to prove the general character of the plaintiff as an insulting, provoking and quarrelsome man; nor that, before the speak ing of the slanderous words, the plaintiff was in the habit of vilifying, insulting and provoking, him and his family.

Ibid.

23. In assumpsit, the testimony of witnesses, offered to prove the items in the plaintiff's account, ought not to be ex cluded 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.

24. A charge of Usury being expli. citly denied by the defendant's Answer, the plaintiff has not a right to an order requiring him to produce his books and papers, for the purpose of establishing such charge. Greenhow'a adm'x v. Harris, p. 472-484.

25. In a Court of Equity, several mortgages, though appearing, upon their face, to be for distinct debts, will, under circumstances, be considered as merely additional evidences of, and securities for, one original debt. Ander son's adm'r v. Davies's adm'r, p. 484– 486.

26. See BILLS OF EXCHANGE; Walker v. Laverty & Gantley, p. 487-488.

27. See PRESUMPTIONS; Wells v. Washington's adm'r, p. 532–533.

28. In general, a deed is to be taken as having been executed on the day of

it's date, unless it appear to have been on some other day. Colquhoun v. Alkinsons, p. 550-557.

29. The testimony of the person who executed the deed, was received as fixing the time when it was executed; notwithstanding the testimony of two witnesses to his acknowledgment to the contrary when not on oath; he being entirely disinterested between the parties, and the falsehood of his evidence being not probable under the circumstances of the case. Ibid.

EXECUTIONS.

1. A motion for judgment on a forthcoming bond, in the obligatory part whereof no penal sum is mentioned, can not be sustained; but such bond, with the execution on which it was founded, may be quashed, on a motion for that purpose. Bragg & others v. Murray, p. 32.

2. It seems, that property conveyed, by deed of marriage settlement, in trust that the husband and wife shall be permitted, during their joint lives, to enjoy the profits, may be taken in execution to satisfy a debt, incurred after the marriage, for supplies furnished for the proper support of the husband and wife. Scott & wife v. Loraine & others, p. 117-119.

3. If a supersedeas to a judgment, (execution being levied, and a forthcoming bond taken,) be issued before the day of sale; and thereupon the property be not forthcoming; the penalty of the bond is saved, and no motion lies upon it. Rucker v. Harrison, p. 181-184.

4. It seems, too, that, if the property taken in execution be in the sheriff's hands, at the time of his receiving the supersedeas, or be delivered to him on the day of sale, after his receiving such Writ, he ought to restore it to the owner. Ibid.

5. An amended return, by a sheriff, upon an execution, stating that a writ of supersedeas was issued on a day specified; (being a day previous to that appointed for the sale of the property taken in execution;) that he thinks the said writ was delivered to him on the day of sale; and that the property for which a forthcoming bond was given, was not delivered at the day and place of sale; is sufficiently precise and cer tain. Ibid.

6. In a suit by the assignee against the assignor of a bond, if it appear that, after judgment against the obligor, a fieri facias was returned nulla bona; and that, afterwards, the assignee sued out a Capias ad satisfaciendum, upon which the return was, "executed on the body "of the defendant, who stands commit. "ted to the prison bounds, as per "bond, &c;" the plaintiff can not recover, but must be considered as having brought his action prematurely; because, for aught that appears in the record, the obligor is still in custody under the ca. sa., or may have paid the debt. Johnston v. Hackley, p. 448-450.

7. Not more than one fine can legally be imposed on the Sheriff, or other officer, for failing to return one execution. Tomkies' Executor v. Downman, p. 557.

8. The plaintiff at law having recovered, by successive judgments, many fines, against the Sheriff for failing to return one execution; to a greater amount, in all, than the execution itself, with his extra costs added thereto; it appearing, also, that the execution was lost, and therefore could not be returned; that the Sheriff's failing to make defence at law against any of the judg ments after the first, proceeded from ignorance of the true construction of the Act of Assembly; and that, in rela tion thereto, there was a general delusion among the Citizens of the Commonwealth; the Court of Equity gave the Sheriff relief, by Injunction, prohibiting any farther recovery against him on account of his failure to return the said execution; and this, although it appeared he had received and applied to his own use a part, and probably the whole, of the money upon the execution. Ibid.

EXECUTORS AND ADMINISTRATORS.

1. A settlement of an executor's administration account, certified by commissioners on a day subsequent to his death, and not appearing to have been made in his life time with notice to himself, nor, after his death, with notice to his executor, is erroneous, and ought not to be received as the ground of a decree against his estate, Boyd ex'or of Hoskins v. Kaufmans, p. 45-47.

2. Quære, if an executor die indebted to the estate of his testator, without