1810. Executor MARCH, by the Clerk, as of the last day of the term; which judgments shall be final in actions of debt founded on any speDigges's cialty, bill, or note in writing, &c. By the 69th section of the County Court law, the proceedings in the said Courts, in common law cases, shall, as nearly as may be, conform (a) 1 Rev. to the practice in the District Courts. (a) V. Dunn's Executor. Code, p. 92. This judgment, then, obtained at the Rules, in the office of Essex County, the 22d day of July, 1788, ought, according to the directions of the law, to have been entered by the Clerk, as of the last day of the succeeding quarterly term, which was in August following; because the defendant was at liberty, during all that term, to set the office judgment aside, by pleading to issue. And the Clerk, by not having so entered it, was guilty of a misprision, the meaning of which I take to be, a mistake, an oversight, an omission, or neglect, in entering up a record; and the failing, or neglecting, to enter the judgment before us, as of the last day of the August quarterly term, next succeeding the office judgment, was clearly, in my apprehension, a misprision; and the entry ought to have been amended, agreeably to the directions of the law; and, according to the plain construction of which, and to the decision in the (b) 2 Call, 49. case of Hunt v. Wilkinson,(b) the judgment was incomplete, and in abeyance, (nor could execution have been had thereon,) until the end of the August quarterly term next succeeding the office judgment. The plaintiff, then, in my conception, properly stated it, in his declaration, to have been a judgment recovered in the month of August, 1788. I am therefore of opinion, that the judgment of the District Court is erroneous, and ought to be reversed, and the cause remanded for further proceedings. By the majority of the Court the judgment was reversed, and the cause remanded for further proceedings on the issue, which had not been tried, and on the demurrer, as to which there was no joinder. MARCH, 1810. Chinn against Heale. Thursday. A bond be make a title to THIS was a suit in Chancery brought in the County 1. Court of Fauquier, by William Heale against Charles Chinn, ing given to Rawleigh Chinn, and John Chinn, executors of Charles a Chinn, deceased. particular tract of land, "to contain a certain num a ber of acres," but not binding the obligors to " convey any o good a defi ciency is a It proportiona ble compensa the price a the whole with lawful interest the same was The object of the bill was to compel a conveyance of tract of land sold to the plaintiff by the defendants, under the will of their testator, "as containing two hundred acres," ther specific and an additional conveyance of part of the adjoining land, lands to make (held by the defendant Charles Chinn,) to make up a deficiency; the only remedy ciency of quantity in the said tract, according to an alleged for such defiagreement between the defendants and the plaintiff. appeared from the bill, answer and exhibits, that the plaintiff tion in money, held (by deed from George Heale, his father, who bought of according to Rawleigh Shearman) two hundred acres of land devised greed on for to the said Shearman by the will of Rawleigh Chinn, decea- tract, sed; adjoining to which lay the land sold as aforesaid by from the time the defendants to the plaintiff; being other two hundred payable. acres devised by the same will to Bryan Stott, under whom 2. An answer the testator of the defendants claimed. The several devises to Rawleigh Shearman and Bryan Stott were of so many acres of land out of a larger tract in Prince William cree being in County, (afterwards Fauquier,) and not by metes and bounds. plaintiff) The plaintiff contended that Shearman's land was laid off ken as their for him (after Rawleigh Chinn's death) in a manner corre-notwithstandsponding with certain lines represented in a plat and cer- ing the Clerk tificate of survey made by a certain James Routt by order script of the of the Court, and in presence of the parties, as the surveyor that they apcertified; (which order was made, however, on the plaintiff's counsel filed in the name of one of three executors (the de favour of the not to be ta joint answer, in the tran record says peared by and filed their an swer, and no steps were taken to compel a further answer from them. 3. Where a plaintiff sues in Chancery for a conveyance of a specifie tract of land, and also for a conveyance of other lands to make up a deficiency of quantity; (relating to which deficiency he prays a discovery;) but, according to the contract, appears entitled to compensation in money, and not in lands, the Court, after decreeing the first mentioned conveyance, (the deficiency, and the sum to be allowed for it, being ascertained,) will go on to decree the compensation, without turning over the party to a Court of law. MARCH, 1810. Chinn V. Heale. motion before his bill was filed;) that a certain green line, E. F., (designated 'in the said plat,) divided the same from the land devised to Bryan Stott, which lay on the west of that line, and was bounded as described therein; according to which plat there was a deficiency of quantity in the last-mentioned tract. The plaintiff farther alleged that a private survey, by consent of parties, and in their presence, was made before he gave his bond for the purchase-money; by which survey the dividing line was, run, nearly, if not entirely, as represented by the said green line and letters E. F., and (as he conceived) was settled without the necessity of further dispute; but according to that survey the land fell short about 49 acres; that he then proposed to purchase from the defendants the land which had been devised to Bryan Stott, at 20s. per acre, agreeable to the said private survey; to which he was answered by the defendants that, if he would take 200 hundred acres at that price, he might have it; and the difference in quantity should be made up from the adjoining lands. The defendant Charles Chinn in his answer declared he had understood that after the death of Rawleigh Chinn the whole four hundred acres above mentioned were laid off together in one undivided body; that he had never understood there was any division of the said land between Shearman and Stott; that he had searched several offices to find the said division, but never could; that, in a deed from Rawleigh Downman (who claimed under William Downman the purchaser from Stott) to Charles Chinn, the defendants' testator, the land devised to Stott was particularly described; that the boundaries therein mentioned contained two hundred acres, or rather upwards; and the defendant supposed, if there ever was a division, it must have been made according to the lines described in that deed. He contended that the plaintiff now had the whole title of Shearman and Stott; and if there was a deficiency in the whole quantity of four hundred acres, it should be made up to him out of the residue of Rawleigh Chinn's tract, and not out of the estate of Charles Chinn. He denied that he fever agreed to make up any deficiency of the said two hundred acres out of his own land, or any now in his possession, averring that the bond for a conveyance referred to in the bill would show what land he was bound to convey; beyond which, he was advised he was not bound. The bond last mentioned, dated September 29th, 1788, was from Charles Chinn, Rawleigh Chinn, and John Chinn to the plaintiff. They bound themselves "executors of Charles Chinn, deceased," jointly and severally, in the penal sum of five hundred pounds; subject to a condition reciting that "whereas, at a public sale of the land belonging to the estate of said Charles Chinn, the said William Heale purchased a lot thereof containing two hundred acres, being the land which Charles Chinn, deceased, purchased of Rawleigh Downman, which land had been willed by Rawleigh Chinn to Bryan Stott, and by the said Stott sold to William Downman, the said Heale having, of this date, passed his bond for two hundred pounds, the purchase money, now if the above bound Charles Chinn, Rawleigh Chinn, jun., and John Chinn convey to the said William Heale, by good and sufficient deeds of conveyance the aforesaid land, to contain two hundred acres, whenever the same shall be required of them, then the above obligation to be void," &c. Before the answer was filed, a decree nisi was entered against all the defendants; and at May Court, 1796, (the record says,)" came as well the complainant by his counsel, as the defendants by their counsel, and the said defendunts filed their answer to the bill aforesaid, which said answer is in these words, to wit: The answer of Charles Chinn, one of the defendants, to a bill of complainc exhibited against him and others, executors of Charles Chinn, deceased, &c.; to which answer of the said defendant the complainant replied generally, and commissions were awarded the parties to take depositions." VOL. I. MARCH, 1810. Chinn V. Heale. MARCH, 1810. Chinn V. Heale. Sundry depositions were taken; partly for the purpose of endeavouring to explain the written contract, by paroltestimony; and partly relating to the lines and quantity of the land sold. The plaintiff, by the deposition of a certain William Metcalf, substantially maintained his allegation concerning the private survey, made by consent of parties, in September, 1788, the day before the contract was concluded; from which survey it appeared that, after allowing him the full quantity of two hundred acres for Shearman's tract, there would remain only 146 acres in Stott's tract. The County Court, on the 27th of March, 1798, decreed and ordered that the complainant recover of the defendant thirty-six three-fourth acres of land to be laid off out of his lands adjoining the complainant, and appointed commissioners to lay off the same; and, upon their report, decreed that the defendant convey to the complainant by good and sufficient deeds in fee-simple the lands and premises in the bill mentioned, and in the plat and survey also mentioned, and described by the green letters E. F., &c., and the lands described in a survey made by Charles Kemper in this cause," (containing thirty-six three-fourth acres) "bearing date the 8th day of June, and referred to in the report of the commissioners of the same date, and that they pay to the complainant his costs." This decree was affirmed by the Superior Court of Chancery for the Richmond District in May, 1804; upon an appeal taken (as the Clerk stated in the anscript of the record) by the defendants; but upon bond and security given by Charles Chinn only; from which decree of affirmance the "appellants" appealed to this court. Wickham, for the appellants. We contend there was no dividing line; and that Heale is not entitled to more than But if he were, the quantity of land found in Stott's tract. the decree is erroneous in having been entered against one defendant only, and subjecting him to make good the whole loss. The bill was taken for confessed as to all the |