4. An executor being sued on a bond of his testator

of more than twenty years standing, was advied by his counsel to rely on the presumption of puy. meist arisn.g from the length of time, and. sup. pering suchi presumption a sufficient defence, neglected to fortify it by other testimony, which was in his power. In consequence oi evidence given by one of the jurors in the jury-rouni, a Verdiet was found against him. He moved for a new trial on that gond, but was denied it. He afterwards obtained a new trial, by applying to a Court of Equity, on the ground of mistake and accident. Price's E.xecutor v. Fuqua's ridmini.

strator, p. 68. 5. See Legarees ; No 10.; Rooles v. Webb, p. 77. 6. On a bill in equity for specific performance of an

agreement, although the court, if (from the want of evidence, wbich the defendant, being in contu. macy, ought to disclose) it be not able to direct such performance, may direct a sum of money against him conditionally, for the purpose of conipelling the production of such evilence; and, in ihe event of his not producing it, the defendant will have his election, either to pay that sum, or to perform the agrement spacifically; yet. if the defendant, in obdience to the court's order, do produce evidence. which, though not entirely sa. isfactory to the plaintif, is accepted by him, the court ought not thereupon, to limit the plaintiff's recovery to the sum of money so deereed, but should proceed to decree a specific performance.

Rass v. Hoch's Administrators, p. 97. 7. If a defendant (with full knowledge of a decree

in chancery, directing him to deliver up certain slaves to comniissioners appointed to divide them) purchase up executions against the plaintiff, and cause the same to be levied upon tis undivided interest in those slaves, which interest thereupon is sold by the sheriff at an under rate; the sale ought to be set aside, and the slaves, with their inertase and profits, still held liable to the pro•

visions of the decree. Ibid. 8. In a suit upon an administration bond, for the be.

nefit of distributees, (tuo of whom were the ad. ministrators,) judgment was rendered against the executors of the security only, for the amount of the inventory. On a bill of equity to injoin this judg:nent; it appearing, by an er parte settle ment in a County Court, that a considerable part of the estate had been bona fide disbursed by that administrator; and partly to some of the distribulees; reliet' was given, though no defence liad been made at law, Preston and others, E.recuo

tors of Wall, v. Gressom's Distributees, p. 110. 9. Under what circumstances, a sale of land by com

missioners, in obedience to a decree in caucery, ought not to be set aside. Fairfax v. Muse's Exo:

ecutors, p. 124. 10. In a case involving trust and confidence, and in

which it appears reasonable to allow the com: plainant the benefit of the defendant's oath. re. lief may be given in equiry, although the party neglected to make the proper defence at law.

Spencer and White v. Wilson, p. 130. il. Although a party may be let into a Court of Equi.

ty, on grounds which he could not have used on the trial of a caveat, and which, in fact, make ano. ther case ; (in reference to that which he might have availed himself of on such trial ;) or upon a case suggesting and proving that he was prevented by fraud or accident from prosecuting bis caveat ; he is not to be sustained in the Court of Equity on such grounds as were or might have been brought forward on the trial of the caveat.

Noland v. Cromwell. p. 155. 12. If a bill in chancery be dismissed, on the ground

that the plaintiff's claim is exclusively cognizable at law; he cannot plead the pendency of such suit in chancery, to prevent the act of limitations from being a bar to his subsequent recovery at

law. Gray's Administratrix v. Berryman, p. 181. 13. J. M. having the equitable title to a tract of land,

sold it to J. P., and received of him part of the price; but finding some difiiculty in guing the Dulance, he made another sale of ibe sane land to J. 11. pon condition bat he wonld advarre that balance, and give J. P. six months to pay it to him ; in which event. J. P. Was still to have the land; otherwise it was to belong 10 J II The contract so nade was approveel hy v P, who nc. cordingly promised to pay the money to J. II., and soon 'fter the contact, moved of the land, of which J. H. then took possession. '1 ons was adjuged to be a morigage, in the port of J. P.; and that a court of equity should allow him to redeem, not withstanding he filed 10 pay the money will in the six months ; hr not having treated with J.

: H. for a sale of his title, nor entered into any dis. enssion with bini concerning the adequacy of the sum alleged to have been intended as the price or consideration therefor; and the saint land being so far more valuable than the said consideration, as to leave no doube that the contract in question was intended to create a penalty or pledge, to ensure the punctual payment of the money.

Pennington v. lianby wd othoi's. p. 140. 14. If a person, having the equitable riile to a tract

of land, mortgage it, and afterwards sue for a conse veyance of the legal itle; (the vortgagre being a party to the suit ;) the court ought not to decree a conveyance, without holding the land donately bound to satisfy the mortgage, and to be sold to

raise the money due with inuresi. Ibid. p. 141. 15. A decree cannot be made against a widow, (ie.

straining her from conveying her right of tower,) in a suit to which she is not made a party 0; win doro, but only as administrutrix of the decedent

and guardian of her children. Ibid. p. 144. 16. The heirs of a venilor, retaining the legal citle to

the land, ought not to be decreed to make a con: veyance with general, but with special warranty: neither ought they to be compelled to pay costs.

Vid. p. 141. 17. A Court ot' Equiry ought not to give its aid to a

plaintiff claiming under a deed of gift from a person who made a previous transfer of the same property to another for the purpose of defrauding crditors'; the object of the bill being to enforce a secret trust beiween soch transferor and trans

feree. Rane's Auministrator v. Vua'. p. 187. 18. See Contribution ; and Bower's Executor v. Glen.

uening and others, p. 219. 19. Il a widow executrix purchase slaves for the

estate of her husband, by his direction, with mopey left by him for that purpose; but allerwards hold theni as her own, and apply their prefits to her own use ; she is to be considered a trustee for The benefit of his estate, and responsible in equily, but not at law, to his legatees. Redwood v. Riduick

and wif, p. 222. 20. And if she narry again, her second husband,

hulling and using the slaves and Vieir profits, is

in like manner responsible. Ibid. 21. A frustee enot take advantage of the act of li.

mitations against the clains of the cestuy que trust,

or of persons claiming under him Ibud, 22. See Usury; and Fox v. Tanaferro, p. 243. 23. See Se.ie; and Quarles v. Lacy, p. 252. 24. A fact, not charged in the bill in chancery, nor

put in issue by the pleadings, cannot be relied upon by the plaintiff. Parktr v. Carter and others,

pl. 4, p. 273. 25. A defect in the charging part of a bill cannot be

supplied by a subsequent interrogatory. Ibid.

pl 5. 26. A plaintiff comes, with a bad grace, into a Court

of Equity, to enforce a promise which was induced by unfounded and delusive representations on

his own part. Ibid. pl. 7. 27. Under what circumstances a suit in equity may

be brought against the securities of an executor, administrator, or guardian, without any previous judgment or deeree against their principal, Spuleswood v. Dandridge and others, p. 289.

P. 59.

p. 80.

P. 186,

EVIDENCE.
2. See Instructions to Juries; and Crabtree v. Horton,
2. Á verdict submitting to the court, for its judgment

as to the land, certain documents and other cui.
dence. oral and written, (without finding the facts
established thereby,) is too incertain and insuf:
ficient for a judgment to be foundtd thereupon.

Blankr's Administrator v. Foushee, p. 61.
3. Where a bill of review has been dismissed, on the

ground that it ought not to have been allowed, the
decree not being final; the complainant in thit
bill is not authorized, in his subsequent defence, to
make use of the answer to the bill of review as evi.
dence in his favour. Ellzey v. Lane's Executrix,

pl. 3, p. 66.
4. See Detinue ; and Boatright v. Meggs, p. 145.
3. A letter, promising to niake a deed for a tract of

land," according to contruce," is a sufficient memo-
randum or note in writing, under the act to pre-
vent frauds and perjuries ; notwithstanding the
terms of such contract are not mentioned; if the
party claiming the conseyance can prove, by the
testimony of une witness, what price was agreed to
be given for the land. Johnson v. Ronald's Admi.

nistrator and Heirs, p. 77.
6. See Depositions ; Jeler v. Taliaferro, Stuart ó Co.
7. In trespass for goods taken away, proof by wit.

nesses, that the person, of whom the plaintiff
bought the goods, was heard to say, before the in.
stitution of the suit, that, when he sold them, they
belonged to the defendant, is not asinissible evi-
dence against the plaintiff. Vaughan's Adminis

slalor v. Winckler's Executor, p. 136,
8. See Caveat, No. 1; Noland v. Cromrdell. p. 155.
9. See Detinue; ritzhugh's Administrarit v. Beale,
10. The plaintiff in detinue may adduce evidence of

parol acknowledgments, by the defendant, or by
the person under whom the defendant claims, that
the property belonged to the plaintiff'; for the
purpose of rebutting an alleged adverse possession,

Smith and Wife v. Towner's Administrator, p. 191.
11. A legatee, suing for a slave specifically bequeath.

ed, may prove, by the executor, (if he has no ob-
jection to being examined,) his assent to the legacy;
but he cannot prove by him that the testator had

title to the slave, and could bequeath it. Ibid.
12. A record, legally authenticated, of the proceedings

of a court of competent authority, in any other of
the United States, is conclusive evidence in the
courts of this state, to shew ibat a judgment was
rendered, and that the party was compellable to pay
the amount recovered against him; but it may be
opposed by proof of fraud or collusion, or of subse-

quent payments or discounts. Buford v. Buford,
13. The only competent evidence, that an award,

made pendente lite, was afterwards set aside on ex.
ceptions taken, is a transcript of the record there.

of duly authenticated. Ibid.
14. It is a settled rule of law, that counsel and attor.

nies ought not to be permitted to give evidence
of facts imparted to them by their clients, when
acting in their professional character. And this
restriction is not confined to faets disclosed in re-
lation to suits actually pending, but extends to all
cases in which the counsel or attorney is applied
to in the line of his profession, whether such facts
were communicated with an injunction of secrecy,
or for the purpose of asking advice, or otherwise;
unless, indeed ihe client should seem to vaunt his
disclosures to the public, and, as it were, challenge
the by standers to hear them. Parker v. Carter

and others, p. 273.
15. The same rule applies to a licensed counsel or at.

torney, employed, as such, to draw a deed ; and,
also, to interpreters, acting as the organ of commu.
nication between the client and attorney. Ibid.

16. See Detinue ; and Elam y. Bass's E.teculors, p.

301.
17. A copy of a copy of a deed or deeree is not legal

evidence, if the original, or a copy thereof, could

be had, Whitacre v. M' Thaney. p. 310.
18. Where a record is offered as evidence on a trial

in ejeciment, the court ought not to admit it to go
to the jury, 10 prove than the land in dispute was
assigned to the plaintiff;" for this would be un.
deriaking to decide not only the legality and re-
levancy of the evidence, but also its weight and
effert. It should be admitted, only, as legal testi-
piony, in relation to the subject in controversy;
leaving the jury to determine what facts are proved

by it. Ibid.
19. See Deed; and Lacy and others y. Wilson, p. 13.
20. See Account ; and Wyllie and Wife v, Venable's E.x.
21. See Depo.itions; and Cahill, Executor of Quin, r.

Pintony. p. 371.
22. A bill of sale of a slave should be permitted to go

to the jury as evidence, though not recorded. Fux.

lor v. Lee, p. 373.
23. See Bill of Exceptions; and Ibidl pl. 2 and 3.
24. In detinue for a slave, the defendant bar ng pro.

duced a bill of sale to support his title, the plain.
til may prove parol declarations of the defe dant,
disclaiming title to the slave under the said bill of
sale, after he had notice of the plaintiff's purchase,
and before he had perfecied his own title by obtain-

ing possession. Ibid. pl. 4.
25. It is error in the court to instruct the jury, that
either party

Tras a fair purchaser for a valuable
consideration ;" that being a question which ought

to be left to the jury upon the evidence. Ibid. pl. 5.
26. It seems that a special verdict, finding, in haec
verba,"

the proceedings, in a suit, to have their full
legal effect, agreerbly to the law of evidence," suf-
ficiently finds the facts appearing io be established
by thuse proceedings. Chapman v. Armisteads, p.

382.
27. Proof that an order of publication has been in-

serted in a newspaper two months is not sufficient.
It should also be proved, that a copy was posted a:
the front door of the house in which the court is

beld. Myrick, Administrator of Lundie, v. Adams,
28. Although in controversies concerning mills, wills,

roads, the probate of wills, and granting of admi-
nistrations, the Superior Court of Law, to which
an appeal is taken from the County or Corpora.
tion Court, may hear new evidence upon ques.
tions submitted to its revisal by the recoril, it ought
not to receive any evidence but that of the record
itself, to prove that questions were in fact tried

in the court below. Bohn v. Sheppard, pl. 5, p. 403.
29. A deed from the marshal of the Federal Court, to

the purchaser of land sold for non-payment of the
direct tax inposed by the Congress of the United
States, is noi sufficient evidence to support the
title of the purchaser on a trial in ejectment; but
other proot is requisite of the authority of the
marshal to make such conveyance, under the
several acts of congress recited therein. Christy

V. Minor, p. 431.
30. A declaration, not upon oath, by a person not a

party to the cause, that he committed the tres.
pass for which the suit is brought, cannot be given
in evidence to exculpate the defendant. Penner

v. Cooper, p. 458.
31. A magistrate's committing a person accused of

felony, or binding him in a recognizance to ap-
pear at court and answer the charge, is sufficient
evidence that the prosecution was with probable
cause; although ihe person accused was acquir-
ted by the court, unless, in his action for malicious
prosecution, he can prove, by other evidence,
that, in fact, the prosecution was without probable

cause. Maddox v. Jackson, p. 402.
32. In case for a malicious prosecution, the court's in.

suructing the jury ibat a magistrate's having com.

p. 306.

P: 241.

sets which shall be established in the progress of such suit in Chancery. Spollswood v. Dandruge

and others, pl. 2, p. 289. 22. Under what circumstances a suit in equity may

be brought against the securities of an executor, administrator, or guardian, without any previous

judgment or decree against their principal,

Sportstood v. Dandrutge ond others, p. 289. 23. Under like circumstances, a court of equity will

give relief avainst the securities in a guardian's bond, and the executor of the decedent was also guardian to the legalee, the two sets of securities, and their representatives, may be jointly sued.

Ibid. pl, 3. 24. If au greement of sale, by an executor, under the

will of his testator, be equivocal, the court should be inclined to consider it a sale by the acre and not by the tract ; it being a dangerous principle: that executors, or other filuciary characters, should take upon themselves, by means of bargains of huzard, to jeopardize the interests confided to their care.

Nelson v. Carrington, Executor of Burwell, pl. 3. p. 332. 25. A testator, in the year 1784, having directed that

his executors should sell all his real anu personal estate for the payment of his debis; and having appointed four ctecutors, three of whom qualified; a sale, in the year 1741, by two of the aciing executors. was considered valid; and the third executor, (as well as th fourth, who never qualified) was presumed to have renounced his right to ad. mimster, as at the date of the sale in question.

Ibid. pl. 9. 26. If the written agreement of sale be signed by the

purchaser, and one of the two acting executors; ihe other may, by acts in pais, though not in writ. ting, (such as delivering possession of the land and the like.) manifest his ass. nt to the sale, and make

it his own act. Ibid. pl. 10. 27. Although a tract of lan: be decreed to be sold to

satisfy a morigage. the executors otthe mortgagor, being authorized by his will to sell all his real and personal estate, may sell it for a full and tur price, with the assent of the mortgagee, or his attorney.

ibid. pl. 11. 28. Where an executor is directed by the will of his

testator, to sell the real as well as the personal es. tate, and to listribute the surplus after payment of debts, among the legalees, he may assign the bonds, taken for the property sold to the persons entitled to distribution, and be discharged as to so much; the bonds appearing to have been well secured when taken, and to remain due from responsible persons at he time of such assigament.

Guerrant v. Johnson and others, p. 360. 29. Quare, whether a decree, requiring persons, enti

tled to distribution of the estate of a decedent, to give bond and security for refunding due proportions of such debts as the executor or administrator

may thereafier be compelled to pay," &c. be cor

rect or not? bid. 30. An executor, who sold the estate of his testatorin

Marel 1781, taking bonds payable the 25th of De. cember ensuing, and received, in payment, a quantity of paper money, a day or two alter the bonds became due, was held responsible for the value therrof in March 1781, because, by virtue of the act establishing the scale of depreciation, which passed December 24th, 1781. paper money ceased, jrom and after the passing of that act, to be a legal tender; and if the executor had refused to receive it, the debtors would have been compelled to pay, in specie, the value of the paper money, at the time of the contract, as fixed by the scale. Myrick,

Adrninistrator of Lundie, v. Adams, p. 366. 31. In this case, the paper money having been receiv.

ed by one of two co-exeeutors, the deer e, directed by this court, was against the estate of him only

who received it. Ibid. 32. It i error to render a joint decree against two co.

executors, when only one is before the court. Ibid, 33. The account of an executoi baving been settled

4 C