P. 97. p. 301. i p. 382. the condition of the bond be stated in the declara CHANCERY. tion, or by an assignment of breaches in some other part of the record, a judgment upon it is er. 1. When a decree in Chancery is affirmed, the Court roneous, and must be reversed. Ward Ó Eilzey, of Appeals being equally divided in opinion; it v. The Fairfax Justices, p. 494. should be, " without prejudice to the legal remedies of the parties." Maitin and Nickolas y. Welch and BREACH. others, p. 60. 2. See Equity; and Ross v. Hook's Administrators, 1. See Assignment of breaches ; and Ward & Ellzey, v. The Fairfa.r justices, p. 494. 3. See Equity; Fairfar v. Mure's Erecutors, p. 124. 3. See Covenant ; and Merryman v. Criddle, p. 542. 4. See Limitations, (Act of) No 7; Gray's Admini stratrix v. Berrymar, p 181 5. See Bill in Chancery ; and Parker v. Carter and с others, pl. 4, 5, p. 273. 6. See Datinue; and Eam v. Bass's E.xecutors. pl. 2, CAPIATUR. 7. See Ejectment; and Chapman v. Armis!cads, pl. 3. 1. In trespass against an administrator for goods 8. See Decree; and ibid. pl. 6. taken away by the intestate, judgment ought not 9. See Parties; and ibid. pl. 7. one of them, the reside of the laund claimed and Winckier's Executor, p. 136. owned by that defendant, under the will of his father, after taking the refrom the portions sold CARRIER, out by him to the oiher defendants; Thathe yield possession, and execute a conveyince of the same 1. In an action of trespass on the case against a com- in fee; " without which conveyance. however, mori carrier, if it appear, by a bill of exceptions, the title is to be in the said complainant by force to have been proved, at the trial, that the defin. of this decree;" is not a final decre, until the suit dant fraudulently opened certain packages and bt dispos dofas to all the defendants. Ibid. pl 5. casks, being in his care, and belonging to the , 11. See Publication; and Henderson and others, vi sin plaintiff, took therefrom a part of their contenis, derson's Execuiria and othrys, p. 435. and converted the same to his own use; but not 12. If a decree be pronounced, by a Superior Court of that the said contents were feloniously carried Chancery.ugcist an executor, in a suit brought away; such offence is to be considered as amount. against him and his seruri ies; but without charge ing to a trespass only. Cook v. Darby, P. 444. ing or exonerating them by such decree ; ? rd the 2. The act of limitations niay be pleaded in bar to an executor reinove out of he commonwealth, with action against a common carrier, for fraudulently out satisfying the sanie; a second suit may be embezzling goods entrusued to liis care, ibid. pl. 3. brought against him and them in the Superior Court of Chancery of any other district, in wlrich CASE, (ACTION UPON THE). the securities reside, loger satisfaction from them. Crutcher v. Crutcher's Exccutors and Securities, 1. See Malicious prosecution, No. 1. Crabtree v, Hor. fon, p. 59 13. The 3d section of the act of January 2018, 1804, “concerning the proceedings in Courts vi Chan. CAVEAT. crry," does not apply to a bill which is not merely a bill of injunction, one has the farther object in 1. Although a party may be let into a court of equity, view of obtaining a ducree for a conveyance. on grounds which he could not have used on the llough and Shrceve, p. 490. CHANCERY, (SUPERIOR COURTS OF.) suggesting and proving that he was prevented by fraud or accident frow prosecuting his cavent; he 1. Under the act of January 27th, 1810. the judges, is not to be sustained in the Court of Equity on of the Superior Courts of Chancery are not ern. such grounds as were, or might have been brought powered io grant appeais from orders for dissoluforward on the trial of the caveat. Noland s. iiou of injunctious. Spencer' v, Smith, p. 323. Cromwell. p. 155. 2. A person, nirglecring to prosecute a caveat to pre. vent the enanation of a patent for land, is not CHOSES IN ACTION. entitled to relief in equity, on the ground of a pre. vious certificate of the board of commissioners, 1. A deed of marriage settlement, conveying "all the under the act of May 1779, ch. 12, in his favour. lands, slaves, goods chattels, and property." of the Gooseman v. Martin, p. 5.33. wife, includes her choses in acrion; so ibat* sum of money due to the wife before the marriage, CERTIFICATES OF STOCK. will not, when recovered, belong to the husband, but to the trustees, for the uses specified in the 1. A contract for the sale of 6000 dollars United States derd. Wilcor v. Hubard and others; and Huburd 8 per cent stock, to be delivered and regularly v, Wilcor and others ...246. transf-rred on a future day, for 6000 dollars cure 2. In such case, therefore, & submission to arbitrarent money in hand paid, is not usurious. Bully, lion, of a controversy concerning a debt to the Douglas, idministra or of Turubull, p. 303. wife, bx ing made by the debtor with the husband, In such case, if the certificate of stock be not de. is void, as relating io a subject not in their power livered and transferred according to contract, the to control. Ibu. pl. 3. proper m asore of compensation is not the nomi. nal amount of the stock. with 8 per cent. interest, from the day when it should have been delivered, CLERICAL MISTAKE. but its true value on that dny, (including the interest then due.) with lawful interest on such value 1. See Mistake of the Clerk; and Gallego v. Moore, wtil paymeni, ibid. pl. 2. P. 457. p. 00, p. 377 2, p. 483. CLERKS OF COURTS, to entitle the plaintiff to recover. Fiskega's Administratrir 7. Beole, p. 136, 2. In debt on a bond with collateral condition, the made part thereof by oyer, it should be distinctls statrd in a replication, p. 205. 3. See Title; and Ross v. Woodville and others, p. 324. 4. A bill of exceptions, stating the plaintiff offered to prove, that the contract under seal, on wheb the defendant relied, appearing absolute on ju får, was in fact conditional, and that the court wald not permit the plaintiff to offer paral evidence to shew it conditional is too vague and uncertain his hands for collection, my, from length of time, 5. In a suit on an adininistration bond, if no bresch erroneous, and must be reversed. Ward and the zey v, the Fairfax Justices, p. 494. CONFESSION. turning bonds, or other debes, payable to his testa- 1. A declaration, not upon oath, by a person nel : party to the cause, that he committed the in Puss for which the suit is brought, cannot be giva in evidence to exculpate the defendant Puci v, Cuoper, p. 458. CONFESSION OF JUDGMENT. 1. See Judgment; and Wrenn v. Thompson and Petek, 2. See Judgment; and Payne and akers v, Lold, pl. CONFIRMATION. 1. If a written agreement of sale of lands, directed by a will to be sold, be signed by the purchaser , and one of the two acting executors; the other may, by arts in pais, though not in writing (such as de livering possession of the land and the likt ) mani fest his assint to the sale, and make it his off act. Nelson v. Carrington, Executor of Burwell, pl 10. p. 333. 2. A vendor, by bringing suit, and obesining judg ment for the purchase money, malities and eth. instance. Ibid. pl. 12. CONSIDERATION. for of Turnbull, p. 303. 1. A goin to the promiser is a sufficient consideration to support a contract, as niuch as a jou to the to Winston and others, p. 63. 2. The plaintiff'in upsumpsit cannot recover without setting forth, in his declaration, a consideration to Nilion v. Car- support the promise. Bevericyer. Hotnes, P 3. A written agreement, not under stei, to deliver bonds to a certain amount, must be considered milk dum pactum, if no consideration for the contract be stated on its face, or disclosed by testimony. Ibid. 4. See Equity; and Pennington v. Hanby avid ellers, 5. See Declaration ; and Daniel s. Morien, p. 120. 6. See Husband and wife; and Quartes v. Lery, 7. A promise in writing, not under seal, by a son ia pay a debt for his father, must be considered file dum practiim, unless some consideration, moring from the creditor to the son, or some agreement, binding the creditor to forbearance, or the like, in the event of the assumption by the son, be proved. Parker v. Carter and others, pk 6, p. 273. 8. See Fraud; and Bullock v. Gorden and Wyatt, de ministrators of Irvine, pl. 1 and 3, p. 450. 3. See Promissory Note; and Nervell T. Hudgins, p. 496. misce. Set Agreement; and Price and othel's V. 95. 1. p. 140 P. 251. 1 2 CONSTITUTION OF THE UNITED STATES. 1. The Court of Appeals of Virginia will consider whether a mandate, issued by the Supreme Court of the United States, directing this court to enter a judgment reversing one which it had heretofore pronounced, be authorized by the constitution, or not; and being of opinion, that such mandate is not so authorized, will disobey it. Hunier y, Martin, Devisee of Fanfax, p. 1. 2. It is the opinion of this court, that so much of the 25th section of the act of congi. ss, passed Sep tember 24th, 1789, entitled," an act to establish the judicial courts of the United States," as extends the appellate jurisdiction of the Supreme Court of the United States to judgments pro. nouneed by a Supreme Court of a state, is not warranted by the constitution. Ibid. If, CONSTRUCTION OF LAWS. 1. The fifth section of the act of limitations of 1792 does not apply to judgments which existed before that act 100k effect. Duy, Eaeculor of Yates, . Pickett, p. 104. 2. See Acts of Assembly ; and Harrison v. Lane, p. 238. dow, but only as administratrir of the decedent, and guardian of her children. Ibid. 3. The heirs of a vendor, retaining the legal title to the land, ought not to be deereed to make a con. veyance with general, but with special warranty: neither ought they to be compelled to pay costs. Ibid 4. Although it is not competent to a husband, after his marriage, to d feat or obstruct his creditors, by selling or exchanging his properly, and taking a conveyance of the money or other property received therefor, to the use, or for the benefit of his wife and family; such conveyances being deemed voluntary, and fraudulent as to creditors;) yet the case may be otherwise in relation to so much of such money or other property as goes to compensate the just interests of the wife. therefore, the wife relinquish her right of dower in other land, in consideration of such convey: ance, the value of such dower ought to be saved to her. in opposition to the claims of her husband's creditors. Quarles v. Lary, p. 251. 5. See Tule ; and Ross v, Woodvilic and others, p. 324. 6. See Decree ; and Chapman v. Ai misteads, pl. 6. 7. If a debtor, charged in execution, convey a tract ܪ CONTINUANCE. 1. A moţion for a continuance, on the ground that a material willess for the party is absent, (it being proved that a summons for him was delivered to the sheriff' in due time.) ought not to be overruled on the ground that an order was made at the preceding term for taking the deposition of the parties de bene esse, and the party had not taken the de position of that witnt'ss, on account of whose absence principally the cause was then continued. Higginbotham and others v. Chamber layne, p. 547. CONTRACT. 1. A letter promising to make a deed for a tract of land, according to contrari,” is a sufficient me: morandum or note in writing, under the act " to prevent frauds and perjuries," notwithstanding the terms of such contract are not mentioned; if the party claiming the conveyance of the testimony can prove by one witness, what price was agret d to be given for the land. Johnson v. Ro nald's administrator and heirs, p. 77. 2. She Considerarion; and Beverleys v. Holmes, p. 95. 3. Sre Declaration ; and Daniel v. Morton, p. 120. 4. See Equity; and Pennington v. Hanby and others, p. 140. 5. See Offices ; and Hoge v. Trigg, p. 150. 6. See Certificates ; and Bull v. Douglas, Admini. strator of Turnbull, p. 303. CONTUMACY. 1. See Equity; and Ross v. Hook's Administrators, P. 97. CONVEYANCE. of his land without a reasonable consideration, or with a secret agreement, or understanding, that the person to whom such conveyance is made, shall hold the land for his use; and he atter. wards take the oath of insolvency; a creditor, at whose suit he was not in custody, may tile a bill in equity to have the conveyance set aside as fraudul ni; and, upon its appearing that such was the case, such creditor ought to have liberty to make the sheriff a party to ihe suit, and obtain satisfaction of his claim as may appear right. Buliock v. Irvine's Administrators, pl. 3, p. 450. 8. See Injunction ; and Hough v. Shreeve, p. 490. 9. See Aitornies ; and MC anahans v. Hannah, pi 499. p. 382. COPY. 1. A copy of a cony of a deed or decree is not legal evidence, if the original, or a copy thereof, could be had. Whitacre v. M l/haney, p. 310, 2. A legally certified copy of an ancien deed, record. ed on the giantor's acknowledgment, and accompanied with possession of the land by the graniee, ought to be r cejsed as evidence, without any proof that the original is lost or destroyed. Row lells v. Daniel, pl. 1, p. 473. COSTS. 1. A decree, directing the heirs of a vendor to make a conveyance, ought not to compel thein to pay costs. Pennington v. Henby and others, p. 144. 2. See New Trial; and Coffman and Richardson v. Russell, p. 207. 3. Upon a rule requiring security for costs, if suffi. cient security be tendere:!, in conrt, at the first calling, after the expiration of the sixty days, it ought to be received, and the suit ought not to be dismissert. Vance v. Bird and others, 364. 4. Quære, whether a person residing within the commonwealth at the time of commerfeing his suit, but removing to another state while it is pending, can be compelled to give security for costs on the ground of his absence from the state? Jid. 5. It seems that a notice, requiring securi!y for costs, is sufficient, if given to the plaintiff's attorney at law. Ibid. 6. If no one appeal, two copies of the record be sent to the app llate court, and docketted on the mo. tion of the appellant, he must pay the costs, occasioned thereby, to the appellee. Harrison Laue, p. 495. 1. If a person, having the equitable title to a tract of land, mortgage it, and afterwards sue for a con. veyance of ihe legal title ; (the morigagee be. ing a party to the suit :) the court ought not to decree a conveyance without holding the land ul. timately bound to satisfy the mortgage, and to be sold to raise the money due, with interest. Pen. nington v, Haniny, p. 144. 2. A decree can not be made against a widow, (re. straining her from conveying her right of dower,) in a suit to which she is not made a party as win COURT. CROPS. 1. An executor is entitled to a commission upon eles of crops made by him upon the lands of his les tator ; the proceeds thereof being lawfully re- Bernard, Executor of Hipkins, p. 83. D DAMAGES. a jury, but by the court, and therefore ought not 1. Quære. whether vindictive damages may be re covered in trespass by an executor against an ad ministrutor, for goods taken away by the intes v, Winckler's Exor. p. 136. 2. In the action of covenant, a verdict for a larger sum than the damages laid in the declaration, # stated in the wru, must be set aside, and a new trial awarded. Cloud v. Compbell, p. 214. 3. Since the act of January 20th, 1804, as explained and amended by that of January 29th, 1805, (st Rev. Code, ad vol. ch. 29. sect.'5. p. 30. an eh. 57. sect. 2. p. 82.) if the jury, in an action of an sumpsir, find for the plaintiff a larger sum than the amount of damages laid in the declaration, with interest from a day fixed in their verdict, the plaintiff may relase ihe surplus beyond that amount, andiake judgment for the balance, with inter est as aforesaid. "Cahill, Executor of Quin, k. responsible for fines collected, took placr before the be rendered for fifteen per centum per anni, but for five per centum damager. and five per centum per annum interest, on the whole amount, as in the case of public taxes. Segouine ville As. ditor, p. 398 5. If the jury in a mill case find that a certain num- ber of acres of land belonging to A, B. will be overflowed, estimated at a certain price, and that all o her damages, which the said A. B. will sus- tain for probabie injury and inconveniences, are estimated by them at a farther sum, expressed in their inquest; it is special enough. Dazsen v. Moons, p. 535. 6. Upon a declaration in covenant, charging in gene ral terms the breach of a contract to deliver & quantity . f corn at a given time, the jury, in de sessing the damages. are not restriered to the value of the corn at the time when it should have been delivered, with interest thereon until pay. ment, but inay give such damages, as, upon the evulen'e, the plaintiff appears to have sustained Merryman v. Criddle, p. 542. DATE. 1. A date to the inquisition, upon a writ of ned greed damnim is not essential, it it be stated, under the hands and seals of the jurors, that, *in dience to the annexed wrir, they viewed the lands in question, &c." Dawson v. Moons, p. 635. DEBT. 1. In deht on a bond with collateral condition, if the condition be not set out in the declaration, nor made part thereof bytoyer, it should be distinctly stated in a replication.' Graham and Scall, K. Goham and Lane, p. 205. In debe on a judgment for the penalty of a bond P 187. 7. 1. 1. 2. "to be discharged by a smaller sum with interest," the declaration ought not to demand the smaller sum,” wish Innerext fill paid," but " the penaty to he discharged thereby." And error in this respect is fatal, even after verdiet. Anderson, Admr. ef 1 3. See Office judgment; and Grays v. Hines, pl. 1. p. 437. 4. DEBTORS, 1. See Execution; and Bullock v. Irvine's Admrs. pl. 1 & 3. p. 180. 2. See Insolvenu y; and Chapman v. Armistead, pl. 3. P. 382. DECLARATION, 73, . P. 76. 1. See Derinue ; and Kent v. Armistead, p. 72. 2. In an action against the clerk of a court, for en. dorsing credits on an execution, to the injury of the plaintiff , it is not sufficient to charge, in the declaration that the endo sements were made, by the defendant, as clerk or with his privily or consent, whereby the plaintif sustained a loss : but it should also be stated, that such endorsements were so made withoui the order and consent of the plaintiff. Monrue v. Webb's Executors, p. 3. See Practice ; and Baird v. Peter's Administrator, 4. In debt on a bond, against the heirs of the obligor; "to be discharged by a smaller sum with interest," Cody, v. Price, p. 307. and amended by that of January 29th 1805, (ste Rev. Coste, 2dvol. ch. 29. seci. 5. p. 30, & ch. 57. sect. 2. p. 82.) f'the jury, in an action of assumpsit, find for the laju tiff a larger sunr than the amount of damages laid in the declaration, with interest from a day fixed in their verdiet, the plaintiff may reitar the surplus beyond that amount, and take judgınent for the balance, with interest as aforesail. Cahill, E.xccutor of Quin, v. Pintony, P. 371. 15. It seems that a declaration, in behalf of a mercan tile company, by the name of the firm. (omitting to mention the names of the partners,) is good af. ter verdici. Tutu's Executor v. Donale and co. 16. Issue being joinert in ejeciment on the title only, a verdict may be found, and judginent rendered, for a tract of land, according to a survey tiled in the cause,"iborgh described in the commencement of the der ni ation as a “mexsuage with the appurlenances ;" in a subsequent part thereof us "the said tenement, with its appurtenances;” and in the conclusion as the plaintiff's said faim," without mentioning quanlity or boundaries. Pauly. Smiley, p. 408, 17. In a suit on an administration bond, if no breach of the condition of the bond be stated in the declaration, or by an assignment of breaches in some other part of the record, a judgmetit pop it is erroneous, nd must be reversed. Ward do Elizey, v. the Fairfax Jurrices. p. 494. 18. A declaration, by the assigner of a promissory note, is tuo defective to inaintain the action if it du nut state that the defendant tail d to pay the nioney to the diaztee, as weli 18 lu the planet. Vorreil v. Hudgins, pl. 2. p. 495. P. 430. DECREE. if the wru (being made part of the record by oyer) be against four persons as heirs of said oblígor; but, by the deriargrion, three only be cha ged as such ; the declaration is too defective for a judgment to be entered thereupon for the plainiift; and defeet is not cured by verdict. Watson's Eror. r. Lynch's heirs, p. 94. 5. The plaintiff'in as ump,it cannot recover without sécung furth, in his declaration, a consideration to suppo t the promise. Beverleys v. Ho mes, p. 95 tiff being a creditor of a person dee ased, and hav. Daniel v. Morion, p. 120. trespass. by an executor against ani adm nistrator, for gooils taken away by the intestate from the lestator. Vaughan's somi. 1. Winchier's Exors. 7. See New Trial; and Cloud v. Campbell, p. 214. 9. In trespass for taking and carrying away goods and chittels, it is sufficient to charge in the de. clarat on that the goods were the propery of the plaintitt, without alo chargmg that they were • taken out of his possessiun. Donaghe v. Ruude 251. 10. In declaring for the taking away of a quantity of pouley consisting of turkies. guese, ducks, and hens, it is not necessary to state how many there were of each deseriprion, the collective value of The whole lxing stated. Ibid. 11. A declaration in slander, laying the charge in the alternative, viz. that the detendant spoke certain words. " or words of the same impor'i,'' is good af: ter verdiet. Bril v. Bugs. p. 260. 12. A declaration in slader containing only a recital of slanderous words, and no diet charge that those words were spoken by the d tendunt, is bad alter verdict. Donaghe v. Rinkin, p. 201. 13. la debt on a judgment, for the penally of a bond, opi. p. 16. 1. When an appeal in chancery is affirmed, the Court of Appeals being equally divided Weich and others. p. 60. chancery directing him to deliver vp certain slaves tu commissioners appo Died to divide them.) purchase executions against the plaintift, and cause the same to be levied upon his audivided interest in those slaves, which interest thereupon is sold by the sheriff at all under tale ; the sale ought to be set aside, and the slaves, with their increase and profits, still held liable to the provin sions of the decrce. R05X '. Hvok's Auministra. Tors. p. 97. 3. Under what circumstances a sale of land by com missioners, in obedience in a derre: u chancery, ought not to be set aside. Fauifax v. Muic's E... ucurul's, p. 124. 4. Ste Equity; and Pennington v. Hanby and others, 5. If, without fraud or collusion, a decree be render. ed, by a court of competent jurisdicsion, against aji executor; he may bring his suit in equiry against the legat es, for contribution to satisty such decree; without paying the money bimselt'; and without having appealed to a superior court; though requested and advised to do so. Bouer's Excutor v Clendening, cc. 6. See Urury; and Fur v. Tanferro, p. 234. 7. Sre Sar; ani Qunrie: v. Lacy. ps. 252. 8. A cipy of a copy of a deerre is vol legal evidence, if the original, or a copy thereof, could be hud. Whitacre v. MInnry.p. 310. 9. Although a tract of land be decreed to be sold ta boush, P. 144. |