1. Covenant (as well as debt) lies on a bond with
collateral condition. Ward v. Johnston, 45
2. As to the manner of assigning breaches in such 3.
action of covenant,
ib.
3. An assignment made after the act of 1795, by 4.
which bonds with collateral conditions were
made assignable, is good, though the bond was
dated before that act. Meredith's Adm'x v.
Duval,
COMMISSIONER IN CHANCERY.
COMMISSIONERS OF THE REVENUE.
1. See LANDS, No. 24, 25. Yancey v. Hopkins,
419
1. Under circumstances à commission of 7 1-2 per
cent. may be allowed an executor on all his re-
ceipts and disbursements; the real and per-
sonal estate having, in obedience to the direc
tions of the will, been kept together and
managed by him. Fitzgerald, Ex'r of Jones,
v. Jones,
1. An attorney in fact having, by mistake, had a
survey made of land not belonging to his em-
ployer; but, after the survey, the employer
having executed a bond to make him a con-
veyance of part of the land so surveyed; and
having snatched and torn the bond so given;
for which trespass a suit was threatened; and
thereupon two bonds for money being given by
the employer, in full satisfaction for tearing the
above bond, and for the attorney's services;
the last-mentioned bonds were considered as a
bar to any claim of the attorney under the
original contract, and adjudged valid and obliga-
tory, notwithstanding the mistake in the sur-
vey was not discovered until after those bonds
were executed. Betts v. Cralle,
238
1. In an action of covenant on a bond with collate-
ral condition, if there be no stipulation, by ar-
ticles, or in the condition itself, that it shall be
performed, the breaches assigned should be
the failing to pay the penalty; but where such
stipulation is either expressed or implied, the
failing to perform the condition may be as-
signed as the breach. Ward v. Johnston, 45
A co-obligor, in a joint and several bond, may
(though described as a security) be considered
as stipulating for the performance of the con-
dition; the words being "if the above bound
L., and W. his security, shall, &c. then this
obligation to be void," &c.
ib.
1. Quære, whether a security is exonerated at com- 2.
mon law, by the plaintiff's accepting a confes
sion of judgment from the principal, and grant-
ing him a stay of execution, by an agreement
to which the security was not a party? Ward
v. Johnston,
1. The practice of LAW is not an office, or place,
under the Commonwealth. Leigh's case, 468
1. A bond being given to make a title to a particu-
Jar tract of land, "to contain a certain number
of acres," but not binding the obligors to con-
vey any other specific lands to make good a de-
ficiency; the only remedy for such deficiency
is a proportional compensation in money, ac- 2.
cording to the price agreed on for the whole
tract, with lawful interest from the time the
same was payable. Chinn v. Heale,
2. Where a plaintiff sues in Chancery for a convey-
ance of a specific tract of land, and also for a 3.
conveyance of other lands to make up a deficien-
ey 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 de-
creeing the first mentioned conveyance, (the
A co-obligor, in a joint and several bond, may
(though described as a security) be considered
as stipulating for the performance of the con-
dition; the words being "if the above bound
L., and W. his security, shall, &c., then this
obligation to be void," &c. Ward v. Johnston,
45
A bond being given to make a title to a particu
lar tract of land, "to contain a certain number
of acres," but not binding the obligors to con-
vey any other specific lands to make good a
deficiency; the only remedy for such deficien-
cy is a proportional compensation in money,
according to the price agreed on for the whole
tract, with lawful interest from the time the
same was payable. Chinn v. Heale,
If A. promise B that if he and A.'s daughter
marry, "he will endeavour to do her equal
justice with the rest of his daughters as fast as
it is in his power with convenience," and the
marriage be afterwards had with his consent;
the promise is sufficiently certain and obliga-
tory. Chichester's Ex'x v. Vass's Adm'r, 98
In such case, A. has not his life-time to per-
form it in; but, in a reasonable time after the
marriage, (taking into consideration his pro-
perty and other circumstances,) is bound to
make an advancement to B. and wife, equal
to the largest made to his other daughters, ib.
A promise in the above-mentioned terms enures
to the joint benefit of the husband and wife;
and is not to be satisfied by a conveyance of
lands to the wife. The husband (to whom
the promise was made) has his election to con-
sider it a personal contract; and, if he sur-
vive the wife, may sue in his own right to re-
cover damages for a breach,
1. In construing wills, the cardinal rule is to col-
lect the intention of the testator from the 9.
whole will taken together, without regard to
any thing technical, or any particular form of
words; and if such intention be lawful, (as not
creating perpetuities, or the like,) full effect
ought to be given to it by the Courts. Wyatt
v. Sadler's Heirs, and Johnsen and others v. 10.
Johnson's Widow and Bevisees, 537. and 549
ib.
A husband surviving a wife (or, in case of his
death afterwards, his executor or administra-
tor) may maintain an action on a personal
contract made with the wife before the mar-
riage, or for their joint benefit afterwards; not.
withstanding he did not take administration
on her estate,
ib.
See ATTORNEY IN FACT, No. 1, 2. Betts
v. Cralle,
238
It seems, that a contract, under seal, between
two brothers, by which one of them, for a fair
and valuable consideration, agrees, that, when
he shall obtain possession of a tract of land
expected to be devised to him by their father,
he will convey it to the other, is not contra
bonos mores, and may support an action of
covenant at law, or be enforced specifically in
a Court of Equity. Lewis v. Madisons,
The rule, that a purchaser is bound by notice
at any time before he receives a conveyance,
does not apply to a lien claimed under a writ-
ten contract so vague and indefinite as not to
designate with any certainty the particular
land in question,
See PURCHASER, No. 9, 10, 11, 12. Hull v.
Cunningham's Ex'r,
330. 336. 338
2. In a suit in equity by the claimant of an encum-
brance against a vendee having notice, a per-
son who joined the vendor in the deed, for the 3.
purpose of relinquishing a collateral claim,
need not be a party,
3. A purchasing agent is a competent witness to
prove that his principal had notice of an en- 4.
cumbrance, notwithstanding such agent join-
ed in a deed conveying the property to the
principal free from the claim of any person
whatsoever,
ib.
4. A person out of possession cannot convey by
bargain and sale such a title as will enable the 1.
bargainee to recover in ejeetment. Clay v.
White,
162
5. The rule, that a purchaser is bound by notice at
any time before he receives a conveyance, does
not apply to a lien claimed under a written
contract so vague and indefinite as not to de-
signate with any certainty the particular land
in question. Lewis v. Madisons,
6. See DEED, No. 6. Yancey v. Hopkins,
7. See INFANT, No. 9.
8. See HEIRS, No. 2. Humphrey's Adm'r v.
M'Clenachan's Adm'r and Heirs,
9. See VENDOR AND VENDEE, No. 12,
case,
10. See HUSBAND AND WIFE, No. 7.
and Wife v. Pecks,
11. What are badges of fraud in obtaining a deed, 4.
ib.
13. Under what circumstances a deed obtained
from a man of weak understanding may be set
aside in equity. Whitehorn and Wife v. Hines
and others,
14. See PURCHASER, No. 20, 21,
On an appeal in a mill case, the party prevailing
ought to be allowed, in the bill of costs, the
mileage and attendance of his witnesses sum-
moned to the Court of Error; though the
Court determined on viewing the record only,
and therefore did not examine the witnesses.
Eppes v. Cralle,
258
The Jury and not the Court, are exclusively
judges of the credibility of witnesses. Har
rison v. Brock,
A judgment ought not to be reversed on the
ground that the Court, at the instance of the
party against whom it was rendered, admitted
improper evidence, or erroneously compelled
the other party to join in a demurrer to evi-
dence,
ib.
The Court ought not to trust the Jury with il-
legal or improper evidence, however unimpor-
tant it may be to the cause. Brown and
Boissean v. May,
If a Court give a right judgment for a wrong
reason, it ought, nevertheless, to be affirmed.
Newell v. Wood,
In covenant, on an agreement to convey the
party's interest in a certain suit, and (in case
the defendant in that suit was not legally bound
by his undertaking) then to convey the
right of such party to certain land, a declara-
tion charging a refusal to convey the interest
in the suit, or the right to the land, (without
setting forth the failure to recover in the suit,
and a subsequent refusal to convey the land,)
is substantially defective, and not to be cured,
by a general verdict, assessing entire damages.
Austin's Adm'x v. Whitlock's Ex'rs,
See VENDOR AND VENDEE, No. 10, 11, 12,
13. Humphrey's Adm'r v. M'Clenachan's
Adm'rs and Heirs,
The Jury, and not the Court, are exclusively
judges of credibility. Harrison v. Brock, 22
1. The creditor of an insolvent prisoner, who has 3.
the liberty of the rules, is bound to give secu-
rity for the prison fees: but the sheriff cannot
legally discharge him, unless he be actually in-
solvent, and being so, the plaintiff, having no.
tice thereof, refuse to pay his fees, or to give
bond for the payment thereof. Meredith's
Adm'x v. Duval,
76
2. If the prisoner depart from the rules by an ille-
1.
gal discharge from the sheriff, the creditor,
having an assignment of the bond, has his elec-
tion to bring suit upon it, or to sue the sheriff,
ib.
In debt on a bond, if the defendant crave oyer,
and then plead"conditions performed," he
cannot take advantange of a variance be-
tween the declaration and bond; and, though
the plaintiff declare against one of several ob-
ligors, without stating that they were several-
ly bound, yet, if the bond appear to be joint and
several, it is sufficient. Meredith's Adm'x v.
Duval,
ib.
76
3. In an action on such bond, the plaintiff is only
required to shew a departure from the rules;
the burden of proof then devolves on the de-
fendant to shew that the prisoner was dis-
charged by due course of law,
4. See PAPER MONEY, No. 3. Day v. Murdoch, 2.
1. What circumstances ought not to be received in 4.
evidence, by way of mitigation of damages on
a joint plea of "not guilty," in trespass vi et
armis, against two defendants for breaking the
plaintiff's close, and beating his slaves. Brown
and Boisseau v. May,
If a judgment of a County Court be declared
upon as of a quarterly term, and the transcript
produced be of a judgment at rules, (which
ought to have been entered as of such quarter-
ly term,) the variance is immaterial. Digges's
Ex'r v. Dunn's Ex'r,
3. The plaintiff in ejectment may recover less
land than the quantity stated in his declaration.
Clay v. White,
162
Quære, whether a declaration against the ad-
ministrator of one of two joint obligors, aver-
ring that neither the defendant, nor the other
obligor, nor any representative of his, had
paid the debt; (without stating that such other
obligor was dead, or that the defendant's in-
testate had survived him;) and alleging, in as-
signing the breach, that right of action had ac-
crued, under the premises, against the defend-
ant's intestate, (without setting forth in what
manner,) be good after verdict? Atwell's
Adm'rs v. Towles,
1. In debt, on a bond, if the defendant crave oyer,
and then plead "conditions performed," he
cannot take advantage of a variance between 5.
the declaration and bond; and, though the
plaintiff declare against one of several obligors,
without stating that they were severally bound,
yet, if the bond appear to be joint and several,
it is sufficient. Meredith's Adm'x v. Duval, 6.
3. The taking in execution the body of one of two
joint obligors is no satisfaction of the debt, and
does not bar an action against the other obli-
ih.
gor,
4. Prior to the 1st of May, 1804, the Courts of
Chancery, on debts not bearing interest in
terms, could not grant interest subseqent to
the date of the decree. Dilliard v. Tomlin. 2.
son, &c.
In ejectment, if the term laid in the declaratiou
expire before the decision of the cause, the
practice is to grant leave to amend the decla-
ration by enlarging the term. Hunter v. Fair-
See COVENANT, No. 4.
fux's Devisee,
Whitlock's Ex'rs,
1. An administrator, to whom a credit, for a suna
of money paid by him to the guardian of one
of the distributees, has been allowed by a final
decree in Chancery, is a competent witness,
in behalf of the ward, to prove the payment of
the money to her guardian; though the latter
was no party to the decree. Hooper and Wife
v. Royster and Wife,
On an appeal from an interlocutory decree, it
proper parties to the suit appear to be wanting,
the Court of Appeals will not leave it to the
Chancellor, but will itself direct such parties
to be made,
ib.
In what case interest ought to be charged against
an executor from the date of the decree only.
Fitzgerald, Ex'r of Jones, v. Jones,
156
On a settlement of accounts in a Court of Equity,
a deeree will be rendered, against a plaintiff for 7.
a balance of account appearing due to a defend- 8.
ant. Fitzgerald, Ex'r of Jones, v. Jones, 150
5. Prior to the 1st of May, 1804, the Courts of 9.
Chancery, on debts not bearing interest in
terms, could not grant interest subsequent to
the date of the decree. Dilliard v. Tomlinson, 10.
&c.
183
6. A decrec, dismissing so much of a bill as claims
one of two separate subjects in controversy,
and, as to the other, determining also the
rights of the parties, but directing an account 11.
to be taken, is not final in any respect, between
the parties retained in Court, and their legal 12.
representatives; but subject to revision and
alteration in every part, at any time before a
final decree; without the necessity of a bill of
review. Templeman v. Steptoe,
Under what circumstances, a deed, obtained
from a man of weak understanding, (though
not an idiot or lunatic,) may be set aside in
equity. Whitehorn and Wife v. Hines and
others,
See FRAUD, No. 4.
7. Quære, in such case, whether any subse- 13.
quent decree could affect the rights of bona fide 14. PURCHASER, No. 20, 21.
purchasers of property as to which the bill
was dismissed,
$. A decree against devisees, holding by several
and distinct devises, ought not to be joint, but 1. In reviewing a judgment by default, on a forth-
pro rata.
Mason's Devisees v. Peter's
10. See APPEAL, No. 5, 6. Day v. Murdoch, 460
11. See INJUNCTION, No 2. Humphrey's Adm'r
v. M'Clenachan's Adm'r and Heirs,
12. See EQUITY, No. 43. Moon v. Campbell,
5. The rule, that a purchaser is bound by notice at 5.
any time before he receives a conveyance,
does not apply to a lien claimed under a writ-
ten contract so vague and indefinite as not to
designate with any certainty the particular
land in question. Lewis v. Madisons, 303.
6. If land be listed by the commissioner of the 6.
revenue to a wrong person, sold by the sheriff
as the property of such person, and conveyed
by deed to the purchaser; it seems, that the pro-
per resort of the rightful owner for relief is to 7.
a Court of Equity, by which the deed may be 8.
cancelled, and a release or reconveyance of
the land decreed. Yancey v. Hopkins, 419 9.
coming bond, the appellate Court will compare
it with the execution on which it was taken.
Glascock's Adm'x v. Dawson,
605
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