10. See EJECTMENT, No. 5, 6. Clay v. Ransome,
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.
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
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.
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
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?
3. See TREATY, No. 1. Hunter v. Fairfax's De- 7. visee,
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,
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,
See WILLS, No. 4, 5, 6, 7. Wyatt v. Sadler's Heirs, 537. and Johnson and others v. Johnson's Widow and Heirs,
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,
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
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
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.
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,
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.
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.
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,
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,
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,
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,
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,
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.
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
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,
In such case, the purchaser or the property, may be made liable, in the first instance, at the election of the plaintiff,
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
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
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,
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,
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.
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,
8. See EVIDENCE, No. 7 and 8. Hooper and Wife v. Royster and Wife,
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
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,
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?
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
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,
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.
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,
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,
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,
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,
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,
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,
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,
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,
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
22 1. In an action against the sheriff for an escape, a
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