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10. See EJECTMENT, No. 5, 6. Clay v. Ransome,

454

11. GENERAL RULE OF THE COURT OF AP. 2.
PEALS, relative to errors operating to the
injury of a defendant in error.
Day v. Mur-
doch,
460. in note.

DEFICIENCY.

1. A bond being given to make a title to a particular
tract of land, "to contain a certain number of
acres," but not binding the obligors to convey
1.
any other specific lands to make good a defi
ciency; the only remedy for such deficiency is
a proportional compensation in money, accord-
ing to the price agreed on for the whole tract,
with lawful interest from the time the same
was payable. Chinn v. Heale,
63

2. What relief a Court of Equity will give where
the suit is for a conveyance of a specific tract of
land, and of other lands to make up a deficien-
cy of quantity, but the plaintiff appears enti-
tled to compensation in money, and not in
lands,
ib.
3. Though land be sold in gross, for so much, be it
more or less; yet, if it be evident that both par-
ties were mistaken in a material point, as to
the lines by which the vendor held, and there
was no express agreement on the part of the
purchaser to take the risk upon himself, a
Court of Equity will give relief for a deficien- 2.
cy. Hull v. Cunningham's Ex'r,

330
4. What is the measure of relief in such case, if
the purchaser do not lose the land he expect-
ed to get, but make an entry and obtain a
patent,
ib.

5. Upon a special agreement to take the risk upon 3.
himself, the purchaser is entitled to no relief,
ib. 336
338

6. See note to the same case,
7. In what case compensation shall be made for a
deficiency resulting from a previous contract
to allow the locator one third of the land.
Humphrey's Adm'r v. M'Clenachan's Adm'r
and Heirs,
493

8. What decree a Court of Equity may make on a
bill of injunction exhibited by the administra-
tor of the purchaser against the administrator
and heirs of the vendor claiming compensation 4.
for a deficiency, credits for payments and a
conveyance,
ib.
9. In case of a deficiency in lands sold, the value
at the time of the contract is the measure of
compensation; of which value the purchase-
money is the standard, where it does not ap-
pear that the actual value was different. Same
case,
p. 500

DEMURRER TO EVIDENCE.

1. Although, upon a demurrer to evidence, the 1.
testimony adduced on both sides ought regu-
larly to be stated, yet, if it be parol and con-
tradictory, the party tendering the demurrer
cannot, after exhibiting his testimony, compel
the other party to join in demurrer; for this,
in effect, would be to enable the demurrant to 2.
confer credibility on his own witnesses, or at
least to carry their credibility to be adjudged
by an improper tribunal; the Jury and not the
VOL. I.

4

.

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An order of Court granting leave to take a de-
position in the city of Philadelphia, being, "by
consent of parties that a commission issue to
any four aldermen of the said city and W. K.,'
and a subsequent order (also by consent)
granting "new commissions to take deposi-
tions;" a commission issuing afterwards "to
R. K. alderman of the city of Philadelphia, and
four other persons by name," not said to be
aldermen, (and omitting W. K.,) "any three
of whom to act, if the whole cannot," should
be presumed to have been directed to persons
agreed upon by the parties, but whose names
were omitted by the clerk in entering the last
order; no objection having been made in the
Court below, on account of any real or suppo-
sed variance between the first and second or-
ders, and the commission. Marshall v. Fris-
bie,
247

ib.

A commission directed to five persons, ("any
three of whom to act,") cannot be executed
by one only; and a return, by one, that three
others were present when the deposition was
taken, is not sufficient. It should be certified
by three, at least, who were present,
A deposition taken at a time and place not men-
tioned in the notice, may be read as evidence;
an agent, of the party to whom the notice was
given, duly authorized to attend to the taking
of such deposition, having appeared at the
time and place appointed, and consented to a
postponement to such other time and place.
And if, in other respects, the commission be
regularly executed and returned, the Court
will presume from circumstances that the
person who gave the consent was the authori-
zed agent of the party,
Quere, whether commissioners appointed to
take depositions can, "by their own mere
authority, adjourn the taking thereof to any
other convenient time and place, in the event
that the business cannot readily be finished on
the day, and at the place, to which the notice
applies;" no intended adjournment, from day
to day until the business be finished, being ex-
ib.
pressed in such notice?

DEPRECIATION.

ib.

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3. See TREATY, No. 1. Hunter v. Fairfax's De- 7.
visee,

218 8.

339

4. Construction of the 5th, 6th, and 7th sections of
the act" to reduce into one the several acts
directing the course of descents. Templeman
v. Steptoe,
5. Where an infant, having title to a real estate of
inheritance derived by purchase or descent 1.
immediately from the father, dies without 2.
issue, and with no brother or sister, or de-
scendant of either; the father being dead, but
the mother living, the right of inheritance is
not in abeyance, but goes in parcenary to the
brothers and sisters of, the father, or their
lineal descendants,

ib.

6. And, vice versa, such estate being derived im-
mediately from the mother; and she being
dead, but the father living; it goes in parce-
nary to her brothers and sisters, or their lineal
descendants,

7. The law was the same as to personal estate, be-
tween the 1st of October, 1793, and the 22d
of January, 1802,

DEVASTAVIT

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See WILLS, No. 4, 5, 6, 7. Wyatt v. Sadler's
Heirs, 537. and Johnson and others v. Johnson's
Widow and Heirs,

DISCOVERY.

549

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ib. 1. A landlord is not entitled to the summary re-
medy by motion, on a three months' replevin
bond; unless it appear that such bond was
taken by a sheriff, or other officer legally au-
thorized to make distress, and sell the distrain-
ed effects. Smiths v. Ambler,

ib.

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596

A landlord, in person, or by a private agent,
may levy a distress: but cannot sell the dis
trained effects, which, in such case, are
only to be held as a pledge, to compel the te-
nant to pay the rent,
iba

DISTRIBUTEES.

1. An administrator, to whom a credit, for a sum
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,

L What is such a deviation, from the voyage, as
will prevent the person insured from being eu-
titled to a return of premiuro, on a marine in-
surance, "at and from Norfolk to Curracoa,
with liberty of going to any other island in the
West Indies, or any one port on the Spanish
Main, and at and from thence back to Rich-
mond." Marine Insurance Company of Alex- 2.
andria v. Strus,
408

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119

In a suit for contribution against legatees or dis-
tributees, the executor or administrator, or,
if he be dead, the person who succeeded him
in the executorship or administration, ought
to be made a party; unless it appear that the
account of such executorship or administra-'
tion has been regularly made up, and the
estate thereupon delivered over to the legatees
or distributees,
ib.

DISTRIBUTION.

3. Quære, whether a Court of Equity ought, - 1. It is now settled, that the mother of an infant
der any circumstances, to assist, to the preju

who died intestate, between the 1st of October,

unappropriated land, to make a personal en
try thereon, to enable him to maintain eject-
ment; for the patent ipso facto confers seisin.
Clay v. White,

162

1793, (when the suspended acts of 1792 took 2. It is not necessary for a patentee of waste and
effect,) and the 22d of January, 1802, (when
the act" concerning the distribution of unbe
queathed personal estate," was passed,) or
any of her issue, by a person other than the
father, was not entitled to any part of such in- 3.
fant's personal estate derived immediately from
the father. Dilliard v. Tomlinson, &c.
But the law was otherwise relative to the pro-
perty of an infant who died intestate, between
the 1st of January, 1787, (when the acts of
1785, took effect,) and the 1st of October,
1793; the distribution during that interval be- 4.
ing regulated by the acts of 1785, c. 61. and c.

183

60.
ib.
3. Neither was the mother, or her issue, as above
mentioned, excluded, where the property was
derived, not immediately, but by intervening
succession from the father,

ib.
4. The profits of the estate of an infant dying in-
testate, (including the increase of slaves,) ac-
cruing to such infant in his or her life-time, 5.
but not applied to his or her use, or otherwise
lawfully disposed of, ought to go to the person
or persons, inheriting such estate generally, ib.

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1. It seems, that a joint suit in Chancery may be
maintained in behalf of a widow, and heirs or
devisees, to recover land in which the widow
has a right to dower, on a bill stating a case, 7.
in other respects, proper for a Court of Law.
See note to p. 554.

2. In such case, it seems, the jurisdiction of the
Court of Equity will be sustained, although the
bill do not specially claim dower, or pray that
it may be assigned, but merely a decree for the
land, concluding with a prayer for general re-
lief. The Court, having jurisdiction as to the
right of dower, will entertain it for the whole 1.
subject in controversy; and, after decreeing
the land to the plaintiff's, will go on to decree
assignment of dower to the widow, partition
among the other plaintiffs, and rents and pro-
fits against the defendants,

DUELLING.

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Such seisin may be transferred and continued
by deed of bargain and sale, or by devise: but
a person, whose seisin is interrupted by the
actual entry and adverse possession of another,
cannot, while out of possession, convey by
bargain and sale such a title as will enable the
bargainee to recover in ejectment,
ib.
The plaintiff in ejectment may recover less land
than the quantity stated in his declaration.
But, if the Jury find a special verdict, shew-
ing the plaintiff entitled to a certain number
of acres, part of the tract sued for; and do
not specify the boundaries of such part, with
so much precision as that possession thereof
may with certainty be delivered; a venire de
novo ought to be awarded,

ib.

In ejectment, if the term laid in the declaration
expire before the decision of the cause, the
practice is to grant leave to amend the decla❤
ration by enlarging the term. Hunter v.
Fairfax's Devisee,

218

A defendant in ejectment is protected by 20
years' possession before the action brought
but the 5 years and 174 days, excluded by the
act of Assembly, are not to be counted in his
favour. Clay v. Ransome,

454

If, therefore, upon a special verdict in eject-
ment, it be uncertain whether the defendant,
or those under whom he claims, had 20 years
possession, exclusive of the said 5 years and
174 days, a venire de novo ought to be award-
ed,

ELECTION.

ib.

A purchaser, with notice of an annual encum-
brance, having prevented the lawful claimant
from enjoying the benefit thereof, is personal-
ly liable, in equity, to the full value. Blair
v. Owles,
ib.

2.

1. An attorney at law is not bound, as a requisite S.
to his admission to the bar of any Court, to
take the oath prescribed by the 3d section of
the act to suppress duelling. Leigh's case, 468

E

EDUCATION AND MAINTENANCE.

1. See GUARDIAN AND WARD, No. S.
and Wife v. Royster and Wife,
2. See LEGATEES, No. 4. Fitzgerald,
Jones, v. Jones,

EJECTMENT.

38

In such case, the purchaser or the property,
may be made liable, in the first instance, at the
election of the plaintiff,

ib.

If a prisoner depart from the prison rules by an
illegal discharge from the sheriff, the creditor,
having an assignment of the bond for keeping
the rules, has his election, to bring suit upon
it, or to sue the sheriff. Meredith's Adm'x v.
Duval,
76
See CONTRACT, No. 5, Chichester's Ex'x
v. Vass's Adm'r,
98

5. PENALTY, No. 2.

Hooper

119

Ex'r of 1.
150 2

1. An illegal and void patent is not to be received 3.
as evidence of title on the general issue in
gjectment. Alexander v. Greenup, 134

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1. A purchaser with notice of an annual encum- 21.
brance, having prevented the lawful claimant 22.
from enjoying the benefit thereof, is personal-
ly liable, in equity, to the full value. Blair
v. Owles,

38
2. In such case, the purchaser, or the property,
may be made liable, in the first instance, at 23.
the election of the plaintiff,
ib.

3. In a suit in equity, by the claimant of an en-
cumbrance, against a vendee having notice, a
person who joined the vendor in the deed, for
the purpose of relinquishing a collateral claim,
need not be a party,
ib.
4. Quere, whether a security is exonerated by the
plaintiff's accepting a confession of judgment
from the principal, and granting him a stay of
execution, by an agreement to which the secu
rity was not a party? and if he be exonerated,
whether it is at law, or in equity? Ward v.
Johnston,

24.

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See ANSWER, No. 2, 3. Paynes v. Coles, 373
The aid of a Court of Equity ought not to be
afforded to set up a marriage promise, when
the effect would be to disinherit (against the
intention of the parties) the only issue of the
marriage,

ib.

Quare, whether a Court of Equity ought, un-
der any circumstances, to assist, to the preju-
dice of a posthumous child, the claim of de-
visees under a will (made before the 1st of
January, 1787,) by a testator who had no child
living, and was ignorant that his wife was in a
state of pregnancy?

ib.
If land be listed by the commissioner of the
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
proper resort of the rightful owner for relief
is to a Court of Equity, by which the deed may
be cancelled, and a release, or reconveyance
of the land decreed. Yancey v. Hopkins, 419
ib. 25. See INFANT, No. 9.

45
63

5. See ANSWER, No. 1. Chinn v. Heale,
6. See CHANCERY, No. 4.
7. In cases where it is proper and necessary to go
into equity for a discovery, the court (having
possession of the subject) will proceed to de-
cide the cause, without turning the parties
round to a Court of Law, notwithstanding (if
such discovery had not been necessary) relief
might originally have been had at law. Chi-
chester's Ex'x v. Vass's Adm'r,

26.

98 27.

8. See EVIDENCE, No. 7 and 8. Hooper and
Wife v. Royster and Wife,

9. See APPEAL, No. 1.

10. See CHANCERY, No. 9.

119

ib. 28.
ib.

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13. On a settlement of accounts in a Court of Equi-
ty, a decree will be rendered against a plaintiff'
for a balance of account appearing due to a
defendant,
ib.

14. Prior to the 1st of May, 1804, the Courts of
Chancery, on debts not bearing interest in 29.
erms, could not grant interest subsequent to
the date of the decree. Dilliard v. Tomlinson,
&c.
183
15. In cases in which the regular remedy is by
caveat, a Court of Equity may entertain juris-
diction, under circumstances which render its

ib.

A simple contract creditor, having obtained a
judgment by default against an executor, can-
not maintain a suit in equity, for marshalling
assets, against devisees of the landed property,
until he has fully prosecuted his claim at law,
against the executor and his securities. Ma
son's Devisees v. Peter's Adm'rs,
437
A decree against devisees, holding by several
and distinct devises, ought not to be joint, but
pro rata,

ib.

Quære, whether, and under what circumstances,
a Court of Equity can decree a sale of land de-
scended or devised, (without any specific lien,
or any charge, either general or special, by a
Conveyance or will of the ancestor or devisor,)
to satisfy a bond, or a simple contract creditor,
elaiming on the principle of marshalling
- assets? Especially, can such decree be made,
in any such case, where the rents and profits
of the land are sufficient to keep down the
interest accruing on the debt?

ib.

On a bill of injunction to a judgment at law, if
it appear, on the final hearing, that the judg
ment ought not to be enjoined, and that the
plaintiff in equity has had credit for a sum to
which he is not entitled, the Court should not
only dissolve the injunction, and dismiss the
bill, but should moreover decree that the

447

plaintiff pay that sum to the defendant. Todd 2.
v. Bowyer,
30. During the pendency of a suit in Chancery, a
settlement of accounts between the parties
having been made, and reported to the Court;
but, afterwards, by mutual consent, a new
order of reference being made; the commis-
sioner was not precluded from examining the
accounts generally, and correcting any error 3.
therein; especially, as it appeared that the
party who was benefited by such error, had
torn his own signature, and that of the other
party, from the settlement,

ib.

31. See MORTGAGE, No. 1. Green v. Price, 449 4.
32. See PURCHASE, No. 1. Day v. Murdoch, 460
33. See APPEAL, No. 5, 6.

ib.

493

34. See INJUNCTION, No. 2. Humphrey's Adm'r
v. M'Clenachan's Adm'r and Heirs,
35. See VENDOR AND VENDEE, No. 12, 13. Same
case, p.
500

36. See DEBTOR, No. 3. Dangerfield v. Rootes, 529
37. Although the assignee of a bond, with, or with-

out notice, takes it subject to all the equity of
the obligor, yet such equity must be clearly
and manifestly established by proof, before it
shall affect an assignee without notice; espe- 5.
cially, if the obligor, after the assignment,
promise payment of the full amount of the bond
to the assignee. Mayo v. Giles's Adm'r, 533
38. See DOWER, No. 1, 2. Note to p. 554. and 555
39. Under what circumstances, a deed obtained 6.

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, 557 7.
40. FRAUD, it seems, may be presumed in equity,

ib. 8.

from strong circumstances; such as gross in-
adequacy of consideration; breach of trust and
confidence; undue influence exerted; (espe-
eially, over a young and weak person by a near
relation ;) over diligence and assiduity in guard-
ing against objections, and the like,
41. It seems, that a bona fide purchaser, without
notice of fraud, having received a deed from
two persons, (one of whom fraudulently indu-.
ced the other to join therein,) is not respon.
sible in equity; but the loss ought to fall on
the fraudulent vendor,

ib.

But quære, whether this should be the rule, 9.
in case the estate of the fraudulent vendor
were not sufficient to make good the loss? ib.
42. In such case, the circumstance that the person
defrauded was of weak understanding, but not 10.
an idiot or lunatic, is not sufficient to affect
the right of the bona fide purchaser,
43. In a Court of Equity, a plaintiff may be decreed
to execute a release, and to procure a third 11.
person (under whom he claims) to join him
therein; without making such person a party
to the suit. Moon v. Campbell,

ERROR.

ib.

604 12.

1. 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
evidence. Harrison v. Brock,

645

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In reversing the judgment for that error, the
Court ought to direct the proper judgment to
be entered against the defendant who confess-
ed, as well as further proceedings against the
other,

ib.

In such case, the plaintiff having, after the judg-
ment, moved for permission to proceed against
the security; and it appearing, by a bill of
exceptions on this motion, that the judgment
had been confessed by virtue of an agreement
(to which the security was not a party) that a
stay of execution should be allowed the princi-
pal; the Court, in reversing the judgment,
ought to have given the security leave to plead
puis drein continuance, all the proceedings
having been brought by a writ of supersedeas,

ib.

Several judgments and orders, relating to each
other may be brought up by one writ of
supersedeas: provided the whole be sufficient-
ly described, as intended to be comprehended
therein,

ib.

What degree of uncertainty and inaccuracy of
language is sufficient to set aside the finding
On a petition for leave to add to the height of a
of a jury in a mill case. Eppes v. Cralle, 258
mill dam, the only proper subject of inquiry
is, what damages will be occasioned by the
proposed addition. It is error, therefore, to
direct the jury to assess such other damages,
accruing from the dam already erected, as
were not contemplated by the original jury, ib.
But an error in this respect should be regarded
as surplusage, (the petition for the writ of ad
quod damnum having prayed only for such in-
quiry as the law ́authorizes,) if the jury assess-
ed such erroneous damages separately, and
the Court did not direct the same to be paid,
but only the damages properly assessed,
Upon an appeal from a decree in Chancery, an
error to the injury of the appellee ought to be
corrected, although he did not appeal. Day v.
Murdoch,

ib.

460

GENERAL RULE of the Court of Appeals as
to the correction of errors operating to the
injury of the appellee or defendant in error,
If a Court give a right judgment, for a wrong
ib. in note.
reason, it ought, nevertheless, to be affirmed.
Newell v. Wood,
555

See EXECUTION, No. 13, 14. Glascock's
Adm'x v. Dawson,
605

ERROR, WRIT OF.

See ERROR

ESCAPÉ.

22 1. In an action against the sheriff for an escape, a

1

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