TRATORS.

self as such ; and his executor or admi- concerning executors and administra-
nistrator has a right to bring an action tors,” (sess. acts of 1813, ch. Iv. p 40,)
upon it. Bowden, ex'or of Moore, v. a decree in chancery against an executor
Taggart,

513 or administrator, directing him to pay
$. After a judgment against an executor or debt of his testator, or iniestate, out of

administrator, as such, a fieri facias and the assets in his hands to be administer-
return of nulla bonu, an action, against ed, (with a fieri facias and return of
him alone, on his administration bond, nullu bona,) was not sufficient evidence
,could always be maintained, without any of a devastavit to authorize an action
previous suit suggesting a devustavit. against the securities in the administra-

Meud and others v. Brooking, 548 tion bond; but it was necessary to bring
6. Before the act of February 7th, 1814, a previous suit against the executor or

“ concerning executors and administra- administrator, suggesting the devastavit.
tors,” (sess. acts of 1813, ch. 13. p. 40.,) Hairston v. Hughes and others, 568
a decree in chancery against an executor
or administrator, directing him to pay a

ADMINISTRATORS.
debt of his testator, or intestate, oui of
the assets in his hands to be administer.
ed,,(with a fieri facias and return of QT See ExecutORS AND ADMINIS-
nulla bona,) was not sufficient evidence
of a devastavit to authorize an action
against the securities in the adıninistra-

AFFIDAVIT.
tion bond ; but it was necessary to bring
a previous suit against the executor or 1. See VOUCHERS, Nog. 1, 2, 3, and M Call
administrator, suggesting the devastavit. v. Peachy's ad'mr. pl. 12, 13, 14, 289

Hairston v. Hughes and others, 568 2. See BILL OF EXCHANGE, No. ), and
7. Quære, whether an action upon the case

IPright v. Hencock & Co. pl. 3.

521
lies against a sheriff for refusing to permit
a person, who is lawfully entitled, to vote

AFFIRMANCE.
at an election of members of the general

assembly? Custis v. Lane, pl. 2. 579 The court of appeals, in affirming a de-
8. Also, quære, whether any action ljes
against an officer, for acting in obedience

cree, will add any explanation which may

be necessary to make it correctly under-
to a legislative act, found to be in con.
flict with the constitution ? Ibid, pl. 3.

stood. Muyo y. Purcell,

243
579

AGENT.
ACTS OF ASSEMBLY.

1. If any agent employed to sell a tract of
1. The act of assembly allowing damages, on

land become the purehaser, by bargaining
the attirnance of deerees in chancery,

with his employer, from whom he con-
does not authorize the recovery of such

ceals the fact that a better price could be
tlamages of a security, in a bond bearing

got from another person, he is guilty of
date before that act. IV oodson y, Johns,

fraud, and the contract ought to be vaca-

ted. Moseley's all mrs. and heirs v.

230
%. See CONSTITUTION, and Custis v.

Buck and Brander,

232
Lune, pl. 3.

2. In such case, the court of equity will com-
579

pel him to reconvey the land, on receip-

ing back his purchase money, with inte-
ADMINISTRATION.

rest, and make him account for the rents
and profits,

ib.
See ExecutORS AND ADMINIS. 3. See Action, No. 3. Hartshorne v.
TRATORS,
Whilles,

357

ADMINISTRATION ACCOUNT,

AGREEMENT.

O See ACCOUNT.

ADMINISTRATION BOND..

1. After a judgment against an executor or

administrator, as such, a fieri facias and
return of nulla bona, an action, against
him alone, on his administration bond,
could always be maintained, without any
previous suit suggesting · devastavit.

Meade and others v. Brooking, 548
2. Before the act of February 7th, 1814,

1. A parol agreement, by an executor, to

pay a legacy out of his own estate, is not
void, under the act to prevent frauds and
perjuries, if a deoree was previously ob-
tained for the legacy to be satisfied out of
certain property appointed by the testa-
tor; for part of which property the exe-
cutor was accountable under the decree,
and responsible de boni, propriis; and
such agreement was made in cousidera-
tion of forbearance to enforce the decree.
Pation, ad'mr.of

Page, v. Williums and
Wife,

59

&

may be

ib.

2. See PreADING, NO. 3. Moss v. Stipp, neous circumstances) which the superior

159 court, in its appellate character, does not
8. See PURCHASER, No. 13. Foreman v. posses8. Chaney y. Saunders,
Newkirk and others,

275 2. Upon a county court's overruling a motion
4. Rent may be payable in udvunce, by con. for dissolution of an injunction, the par

truct; and such rent may be distrained ties cannot make the injunction per-
for, if not paid when due. Williams v. petual, by consent, in order that an apa
Howard,

277 peal may be taken; but, to authorize ao
5. See COMPENSATION, No 2. Bever. appeal, the cause must be regularly pro-
ley v. Luwson's heirs, pl. 2.

317 ceeded in, to a final decree. Blakey .
8. An agreement under seal, by which A.

West,

75
(being much involved in debt) binds cer- 3. Under the third section of the act of Janus
tain siaves to B., until they attain the age ary 20th, 1814, concerning the proceed.
of twenty-one years, upon a condition, ings in courts of chancery, (Res. Cede,
merely, “ that B. shall treat them in a vol. 2. p. 29., ) an appeal from an order
lawful and humane manner, and, if he dissolving an injunction could not be ta
shall die or remove from the county, they ken; but only from the dismission of the
shall be treated equally well, or it shall be bill. Pitta, ex'or of Howzee, v. Tidzella
optional with A., wbether they shall re-
main any longer in the said service,” is 4. It is not competent to a complaisant to
not on valuable consideration, but volun. dismiss his own bill, and then objecte
tary only, and void against creditors. in an appellate court, that the prayer
Broadfoot v. Dyer,

350 thereof has not been decreed in his far
1. See CHARTER-PARTY, and Hartshorne vour,
V. Whittles,

357 5. Where an injunction is wholly dissolved
in a county or corporation couri

, the bill
AMENDMENT.

is not to stand dismissed, until two sue

ceeding courts have been held thereafter
* A decree which is firal in all respects,

in such county or corporation; and the
except that "liberty is reserved to the

appellate court will not presume from
parties, or either of them, to'resort to the

length of time that two such courts were
court for its further interposition if it

held; but this circumstance most ex.
should be found necessary,

plicitly appear in the transcript of the res
amended, on motion, in a summary way, 6. Quære. If it do explicitly appear that two

cord,
or by bill of review. Shepparıl's ex'or.
ů. Sturke and wife,

such courts were held, and it do pot apo

29
2. Quæro, after a suit in chancery has been

pear that, at or before the second court,
sel for hearing, has the plaintiff a right to

any cause was shown against the dismis-
amend his bill before the hearing, as a

sion of the bill, can the clerk'sneglecting
matter of course, upon paying the de.

to enter the dismission have the efect on
fendant all costs occasioned thereby ? or 7. An appellate court ought not to revereiro

keeping the cause on the docket?
is such amendment to be permitted, only
upon good cause shown? Boykin's devi.

judgment, without proceeding to give
sees v, Smith and others,

102

such judgment as the inferior court should
$. If the plaintiff be permitted to amend his 8. In an action of debt, in a county court, on

have given. Durbý v Henderó, 115
declaration, by cousent of parties, after
issue joined on a plea to the action, the

a single bill, for more than one hundred
defendant ought not to be permitted to

dollars, if the jury find for the plaintif
plead in abatement any variance between

llie debt in ihe declaration mentioned,
The amendei declaration and the writ,

to be discharged by less than one hundred
which cqually existed between the writ

dollars, anı, upon : writ of sufersedes,
and the original declaration. Mo83 v.

at the ins ance of the defendant

, the
Siipp,

judgment be reversed, the plaintiff can-
159

not

appeal to the court of appeals from
ANSWER IN CHANCERY.

sich judgment of reversal." Lewis

Long,

9. On a bill of exceptions to the opinion of
See Equity.

the court below refusing to grant a con:

tinitance, the appellate court ought not
APPEAL.

to reverse the judgment, for a ground of
continuance not stated in such exceptions

,
1. Where the evidence spread on the re- 10. An appeal from a judgment in ejet mere

cord is contradictory, and the point in
dispute depends on the cretlibility of wit-

does not abate by the death of the lessor
nesses, the appellate court (not having

of the plaintiff'; notwithstanding such jego
the witnesses personally before it ought

sor claimer the land for life only. Med.
not to reverse the judgment of that court, 11. NEVYRIAL, No. 1. Humes

191

il

court will, if requested, farther direct,

APPRAISEMENT. .
that, in case the money and costs reco-
vered by the appellee shall bave been

1. An appraisement of a decedent's estate,
paid, the same be refunded, with lawful

though not signed by the executor or ad
interest from the time of payment. Stan.
ard v. Brownlow,

ministrator, and, therefore, 'not to be re-

229
13. The security in a bond for the prosecution

ceived as an inventory, is admissible as
of an injunction, is not liable for the costs

prima facia evidence of the value of the

estate. Rogers's ud'mx. v. Chandler's
and damages which may accrue on an admx.

65
appeal to a superior court. Woodson
v. Johns,

230
14. The act of assembly allowing damages on

APPRENTICE.
the affirmance of decrees in chancery,
does not authorize the recovery of such 1. An action in behalf of an apprentice, up-
damages of a security in a bond bearing on his indenture of apprenticeship, ought
date before that act,

not to be brought in the name of the
15. When a decree, in favour of the vendor overseers of the poor, but in his own

against the purchaser of lands, and of sun. name. Poindexter v. Wilton and others,
dry personal property, is reversed, and

183
the cause remanded, for a reference of

ARBITRATION.
the title, and a survey to be made before
commissioners, the court of appeals will

O See AWARD.
direct that the appellant have liberty to
show and prove to them, if he can, what
parts of the personal property stipulated

ARREST.
for were not delivered under the contract,
and the value thereot; although the conrt 1. A warrant to arrest a person, of whom
would not have remanded the cause for surety for the peace is demanded, being
that purpose alone. Beverley v. Law.

executed neither by a sworn officer, nor
son's heirs, pl. 4.

S17

the person to whom it was directed by the
16. The plaintiff cannot appeal from a judg- magistrale, but by an individual selected

ment in favour of all the defendants ex. by the prosecutor, who erased the name
cept one, in a joint action of trespass, of the person appointed by the magis-
until the suit has been abated, dismissed, trate, and substituted that of the person
or decided as to that one. Wells v. selected by himself, is thereby rendered
Jackson, pl. 1.

458

altogether illegal, and void as a justifi.

cation, but may be given in evidence in
APPEALS, (COURT OF.)

mitigation of damages. Wells v. Jack-
8on, pl. 2.

458
1. To give the court of appeals jurisdiction,

2. Quere, if the persons to be arrested be
on the ground that the matter in contro.

described only by their surnames, the
versy is a freehold or franchise, the right

counties they reside in, and their profes.
to the freehold or franchise must be di-

sions, or trades, without their christian
rectly the subject of the action, not inci.

names, is not such warrant too general

and uncertain, and, therefore, illegal
dentally or collaterally. Hutchinson v.

and void. pl. 3.

ib.
Kellam,

202
2. If, therefore, in an action of trespass

9. A warrant directing the “ associates"
quare clausum fregit, the damages re.

of persons named to be arrested, without
covered be less than one hundred dollars,

mentioning the names of such associates,
the defendant cannot appeal to this court;

is illegal, and void as to them. pl. 4. ib.
notwithstanding it appears from the re-
cord that the title or bounds of land were ARREST OF JUDGMENT.
drawn in question,

ib.
3. See APPEAL, No. 8. Lewis v. Long': 1. It seems, that a party, to whom a new

136
4. The court of chancery cannot correct, on

trial is granted, may, at the next term,

without claiming such trial, file errors
motion, or by bill of review, any error

in arrest of judgment. Hull v. Smith,
apparent on the face of the proceedings,

550
in a decree which has been affirmed by 2. In astumpsit against the assignor of a

&

550

356

ASSETS.

do repay the sunis so received by bits, so

soon as the complainant shall have paid
1. A testator bequeathing to the executora

the amount of the judgment to the 2
of his daughter's husband, to be divided signee. Roberts v. Jordans, pi. . 185
among her children by him, a sum of mo. 5. In assumpsii against the assignor of a
ney, it was considered as a legacy to

bond, a consideration for the assignment
them, from their grandfather, and not as- ought to be set forth in the declaration ;
sets belonging to the estate of their father, and if it be omitted, judgment may be
notwithstanding the object of the bequest

arrested. Hall K. Smith, Young & Hyd,
was, in the will, stated to be, to make up 6. A person assigning a lease, for value re-

pl. 2.
their mother's fortune, part of which was
not paid in her lifetime, nor to her hus-

ceived, but without any special agree.
band after her death. Patton, ad'mr.

ment to be responsible for the title, is
of Page, v. Williams und wife, 59

nut bound to restore the purchase money,
2. A fund appointed by a will, for payment of

upon the eviction of the assignee in con-
debts and legacies, must be considered sequence of a defect in the lessor's title ;
sufficient, unless the contrary be proved,

especially where the lessor has not been

ib. previously resorted to, or shown to be in-
3. Upon issue joined on the plea of fully ad. solvent, and where the possibility of the
ministered, a verdiet finding, in general

eviction was in contemplation of both the
terms, the issue for the plaintiff, and that parties at the time of the assigoment.
assets, equal to the claim of the plaintift,

1. Clenahanı v. Grynn, pl

. 1.
came to the hands of the defendant, is 7. Where a lease is assigned, and the ai
uncertain and insufficient. It should set signee is evicted through a defect in the
forth, with sutficient certainty, what por-

lessor's title, he may sue the lesser for
tion of the assets, which came to the de. compensation. pl. 2.
fendant's lands, was unadministered at
the time of suing out the pluintil's

ASSUMPSIT,
writ. Rogers s ad'mx. v, Chandler's
ad'mx.

65
4. See ADMINISTRATION BOND, No. 1,

1. Where an executor has a claim against
and Meade and others v. Brooking,

the estate of his testator, depending on 1
pl. 1.

548 quantum meruit only, he may exhibit a
5. See ADMINISTRATION BOND, No. 2,

bill in equity, against the co-executors
and Hairston v. Hughes and others, 568

and legatees, to have such clain establish-

ed and fixed at a certain sum. Baker T.
ASSIGNMENT.

Baker and others,

2. In such case, he ought to state the claim
1. The assignee of the bond is not in a bet.

with reasonable certainty, by setting forth
ter situation than the assignor. Stock-

his own estimate of his services, but,
ton v. Cook,

should be fail to do so, his bill ought not

68
2. Quære, whether proof of a confession, by

to be dismissed, but leave to amend it
the assignor of a bond, after the assign. 3. In assumpsit against the assignor of a

should be granted on motion,
ment, that the money had been paill to
him before the assignment, can be given

bond, a consideration for the assignment
in evidence against the assiguee? Lewis

ought to be set forth in the declaration ;
v. Long,

and if it be omitted, judgment may be

136
3. Where the purchaser of land gives bonds

arrested. Hall v. Smith, Peung & Hyde,

pl. 2.
for the purchase money, payable at dif. 4. A count for money had and received and
ferent times, and the agreement is, that,
if to

judged good after verdict, although the
delvetive, a deduction from the purchase 5. The mainit in assumpsit must eherent

sum received was left blunk. pl. $. it.
money shall be made in proportion to
the value of the land lost; a court of

the promise, by the defendant, positively

,
equity will not protect the purehaser

not by way of recital only; for if the
against an assignee of one of the bonds,

declaration' be defective in this respect,
on the ground of a defect in the title to

it is a fatal error, and not cured by ver-
part of the lanıi: if it appear that the

dict. Sexton y. Holmes,
bonds not assigned, and remaining unsa-
tisfied, are sufficient to indemnify him

ATTACHMENT IN CHANCERY.
against such loss. Foremun v. Newkirk
4. A court of equity having dissolved an in.

275 1. In a suit in chancery against a defendant
junction against the assignee of a bond,
because the payments, for which credits

within the same, having in his hands ef
are claimed by the complainant, were
made to the obligee after notice of the
assignment, ought further to decree, that

against the defendant in this country *
the obligee (being a defendant to the bill)

299

ib.

550

566

and others,

who is out of the country, and another
fects of, or otherwise indebted to, such
absentee, a decree cannot be entered

til

, by legal proof, and regular proceeds
ings, the plaintiff has established his

*laim against the absentee, Gibson v. ney or agent, do not, within that time,
White,

94 charge bim iu execution in writing.
2. In such case, if the defendant in this Green v. Garrett,

359
country appear not to be a debtor of the 5. A clerk's entering and confirming a judg.
absentee, but to hold effects belonging to ment, at rules, against a defendant, and
him, by a title not effectual against cre. another person as " security for his ap-
ditors, or without any title at all, he pearance, ,” is not sufficient to make such
should be considered personally respon. person liable as appearance bail; but a
sible, only for so much as he may have copy of the bail bond should be inserted
eonsumed, or appropriated to his own in the transcript of the record; for want
use, so as not to be forthcoming, or for of which, the judgment should be re-
the profits he may have received: but, versed. Quarles v. Buford, 487
for that amount, a decree may be made
against him, personally, in the first place,

BAILMENT.
holding the property in his hands ulti-
mately bound, if he be insolvent; and
for the balance of the plaimiff's claim, See Slaves, No. 10, and IFilliams v.

Moore,

S10
the court may proceed, in the first place,
against the property itself, either by con-
sidering such defendant a trustee thereof

BAR.
for the use of creditors, and directing a
sale unless the debt be paid by a given 1. It seems, that a final decree, in a suit hy
day, or by sequestering it (under the act

legatees for the division of a testator's esa
of assembly) as the property of the ab.

tate, is a bar to a bill exhibited by the
sentee,

ib.

same persons, or their legal representa-
tives, suggesting that the executor had

kept back a part of the property, but not
B

averring that this was new matter, since
discovered, or that the decree was ob-

tained by fraud. Legrand v. Francisco,
BAIL,

83
2. If a judgment in a summary motion be

reversed on the ground that the plaintiff's
9. It seems, that a special bail's surrender of

claim is not supported by evidence, the
his principal to the sheriff is effectual,

appellate court should proceed to enter
without his exhibiting a bail piece, or

judgment, that the plaintiff take nothing
other written evidence of his being bail;
if the surrender be made in the county,

by his motion. And such judgment would

be a bar to another motion for the same
in the court of which he was accepted

cause of action. But if such judgment be
and entered as special bail, in open court;

not entered, the judgment of reversal is
and it appear that the fact was known to

too imperfect to be a legal bar. Webb,
the sheriff, who, nevertheless, refused to

ex'or. of Osborne, v. MNeil, 184
accept the surrender, and hold the prin. 3. The pendency of the bill in equity in a
cipal in custody. Evans v. Freclanıl,

county court, after dissolution of an in-
119

junction, is no bar to the complainant's
2. Where the defendant to a suit bas not

obtaining another injunction from the
pleaded, but his appearance bril har,

superior court of chancery. Roberto v.
a judgnient stating, that “the attorney

Jordans, pl. 1,

488
for the defendant withdraw his plea, &c.,
and, therefore, that the plaintiff recover
against the defendant,” must be ruder-

BARGAIN AND SALE.
stood as a judgment against the bail only,
(without including the principal,) and is 1. A deed of bargain and sale from a person
therefore erroneous. Lee's admr. v, who (having the right to enter) has for.
Carter & Forbes,

121 mally and peaceably entered on the land
8. If the defendant in an action of covenant thereby conveyed,' is good to pass his

die after judgment by default against him titie; 'notwithstanding another person
and the bail for his appearance, and le. was in actual and adverse possession of
fore a writ of inquiry executed, the plain- the same land at the time of such entry
tiff cannot have a ecire facias against the and convevance. Birthright, lessee of
bail, but only against ihe executors and Hall, v, Jlull, pl. 2.

556
administrators of the defendant. Sun
ders v. Gaines,

L25