1785 took effect, and the 1st of October, 1795;
the distribution during that interval, being re-
gulated by the acts of 1785, c. 61. and c. 60.
Dilliard v. Tomlinson, &c.

183
6. Neither was the mother, or her issue, as
above mentioned, excluded, where the pro-
perty 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,
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.
5. Where an infant, having title to a real estate of
inheritance derived by purchase or descent
immediately from the father, dies without is-
sue, and with no brother or sister, or descend-
ant of either; the father being dead, but the
mother living; the right of inheritance is not 1.
in abeyance, but goes in parcenary to the bro-
thers and sisters of the father, or their lineal
descendants: and, vice versa, such estate be-
ing derived immediately from the mother; 2.
and she being dead, but the father living; it
goes in parcenary to her brothers and sisters,
or their lineal descendants. Templeman v.
Steptoe,

339
6. The law was the same, as to personal estate, be-
tween the 1st of October, 1793, and the 22d
of January, 1802,

ib.

7. See ISSUE OUT OF CHANCERY, No. 1.
Paynes v. Coles,

8. See EQUITY, No. 23.

373

ib.

9. The land of an infant being, by mistake, listed
by the Commissioner of revenue as the pro-
perty of another person, and sold as such for
taxes, in December, 1786; being bought by 1.
the deputy sheriff who sold it; conveyed to
him by the high sheriff in February, 1795;
and afterwards sold again by the deputy she-
riff; the right of the infant was established
against the last purchaser; (who bought with
full notice of all the circumstances;) notwith-
standing the suit was not brought until six
years after the plaintiff attained his full age.
Yancey v. Hopkins,

INHERITANCE.

419

1. See INFANT, No. 4. Dilliard v. Tomlinson,
&c.
183

nistrator of the purchaser of a tract of land,
against the administrator and heirs of
the vendor, (in whom the legal title re-
mains,) claiming compensation for a deficien-
ey, credits for payments and a conveyance;
the Court, on allowing the compensation and
the credits, may decree that the defendants
shall convey their title to certain trustees to be
by them conveyed to the heirs of the purcha-
ser, (though not parties to the suit, if the
balance of the purchase-money be paid on or
before a certain day; and, if not, with power
to sell as much of the land as may be sufficient
to pay such balance, and to convey the resi-
due, if any, to the said heirs. Humphrey's
Adm'r v. M'Clenachan's Adm'r and Heirs,
493

119

for board. Hooper and Wife v. Royster and
Wife,
2. A reasonable time ought to be allowed a guar-
dian to put the money of a ward out at inte-
rest; and, in this case, six months were con-
sidered as such reasonable time,

ib.

3. Where the failure to bring an executor to a set-
tlement appears to have proceeded from neglect 1.
of the residuary legatees, without any wilful
default on his part, interest ought not to be
charged on the balance due from him to the
estate, except from the date of the decree:
neither, in such case, ought interest to be al- 2.
lowed him on payments to the legatees before
the decree; though made in bonds which car-
ried interest. Fitzgerald, Ex'r of Jones, v.
Jones,

160
4. See BOND, No. 13. Atwell's Adm'rs v.
Towles,

175
ib.

5. See PENALTY, No. 2.
6. Interest on costs could not properly be allowed, 1.
under the act of 1803, 2 Rev. Code, p. 30. e. 29.
s. 5. So decided in M'Rea v. Brown, in note
to p. 179.
7. Au executor or administrator, hiring slaves
belonging to the estate of his testator or intes-
tate, ought not to be charged with interest on 2.
such hire from the day it became due; (no
proof appearing that it was then collected, or
that interest from that day was received upon
it;) but a reasonable time to collect and ap-
ply the money, should be allowed before the
commencement of interest. Dilliard v. Tom- 3.
linson, &c.
183 4.
8. In such case, no interest ought to be charged 5.
where the right to the slaves was in dispute,
and it was doubtful to whom the money, when
collected, should be paid, no proof appearing
that the executor or administrator received
any interest, or made any profit,
9. Prior to the 1st of May, 1804, (when the act,
"concerning the proceedings in the Courts of 1.
Chancery, and for other purposes," took effect;
see 2 Rev. Code, p. 30.) the Courts of Chance-
ry, on debts not bearing interest in terms,
could not grant interest subsequent to the date
of the decree,
ib.
as in

ib.

10. Interest on the hire of slaves disallowed
Dilliard v. Tomlinson, ante, p. 183. White- 2.
horn v. Hines and Wife,

INTERLOCUTORY DECREE.

557

22

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. Harrison v. Brock,
Where two defendants have appeared and plead-
ed, an entry in the record "that the parties
came, &c. and the defendant L. acknowledged
the plaintiff's action, and therefore judgment
against the said defendants," must be under-
stood as a judgment against both on the con-
fession of one, and therefore erroneous. Ward
v. Johnston,

45

In reversing the judgment for that error, the
Court ought to direct the proper judgment to
be entered against the defendant who confessed,
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 ex-
ceptions on this motion, that the judgment had
been confessed by virtue of an agreement (to 22.
which the security was not a party) that a
stay of execution should be allowed the prin-
cipal; the Court, in reversing the judgment,
ought to have given the security leave to plead
pus darrein continuance; all the proceedings
baving been brought up by a writ of superse-
deas. Ward v. Johnston,
45 1.
C. Several judgments and orders, relating to each
other, may be brought up by one writ of su-
persedeas; provided the whole be sufficiently
described, as intended to be comprehended
therein,

ib.

7. Quære, whether a security is exonerated at law,
or in equity, by the plaintiff's accepting a con-
fession of judgment from the principal, and 2,
granting him a stay of execution by an agree-
ment to which the security was not a party?
ib. 3.
8. A judgment at rules in the clerk's office of a
County Court ought to be entered as of the
last day of the succeeding quarterly term; but,
if it be entered as at rules only, it is merely a
clerical misprision, and therefore amendable.
Digges's Ex'r v. Dunn's Ex'r,
56

9. In such case, if the judgment be declared upon 4.
as of a quarterly term, and the transcript pro-
duced be of a judgment at rules, (which ought
to have been entered as of such quarterly
term,) the variance is immaterial,

ib. 5.

10. See BOND, No. 13.
11. In an action of debt on a bond, the judgment
is always entered for the penalty, to be dis-
charged by the principal and interest; and, if
that exceed the penalty, the defendant has his
election, and may satisfy it by paying the pe-
nalty. Atwell's Adm'rs v. Towles, 175 1.
12. A plea in abatement ought not to be received
to set aside an office judgment; unless it be of
matter which arose puis darrein continuance. 2.
Bradley v. Welch,

284

13. See ASSETS, No. 1. Mason's Devisees v.
Peter's Adm'rs,
437

14. A judgment by default, against an executor, is
prima facie admission of assets,

ib.

15, A judgment against the executor is no evidence
against the heirs or devisees of the real estate,

20. The Court of Appeals has jurisdiction to revise

596

A landlord is not entitled to the summary reme-
dy by motion, on a three months' replevin
bond; unless it appear that such bond was
taken by a sheriff, or other officer legally
authorized to make distress, and to sell the
distrained 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 tenant to
pay the rent,
ib.

LANDS.

amount to the sum limited by law. Newell v.
Wood,

555

21. If a Court give a right judgment for a wrong

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. Chiun v. Heale, 63
3. Where a plaintiff sues in chancery for a convey-
ance of a specific tract of land, and also for a 12.
conveyance of other lands to make up a defi-
ciency of quantity; (relating to which defi-
ciency he prays a discovery;) but, according
to the contract, appears entitled to compensa-
tion in money, and not in lands; the Court,
after decreeing the first mentioned convey.
ance, (the deficiency, and the sum to be allow-
ed for it being ascertained,) will go on to de- 13.
cree the compensation, without turning over
the party to a Court of Law,
3. A patent from the commonwealth, containing a
recital "that the land was escheated from a 15.
certain J. M. deceased;" and granting the
same, "by virtue of an entry made in the of-
fice of the late lord proprietor of the Northern
Neck; and in consideration of the ancient 16.
composition of 17. 58. sterling paid by the
grantee into the treasury;" is illegal and void,
and not to be received as evidence of title on
the general issue in ejectment. Alexander v.
Greenup,

ib. 14.

134 17.

4. The commonwealth, under the existing laws,
cannot grant escheated lands, without a pre-
vious inquest of office, and then not (as waste
and unappropriated lands) upon entries and
surveys; but upon sales by the escheators, ib.
5. A patent may be declared void, for defects ap. 18.
parent on its face; without the necessity of 19.
resorting to a scire facius to repeal it,
ib.

6. Quære, whether, and from what Court, a scire
facias to repeal a patent can issue in Virginia?
ib.
7. It is not necessary for a patentee of waste and
unappropriated land to make a personal entry
thereon, to enable him to maintain ejectment;
for the patent ipso facto confers seisin. Clay v. 20.
White,

162

ib. 21.

8. 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,
9. The plaintiff in ejectment may recover less land
than the quantity stated in his declaration.
But, if the jury find a special verdict, shewing
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. 23.
10. By the act of compromise, passed the 10th of
December, 1796, the title of Denny Fairfax, and
of those who claim under him, to such of the
lands in the Northern Neck as were waste and 24.
unappropriated at the time of the death
of Lord Fairfax was clearly extinguished.
Ihunter v. Fairfax's Devisee,
31. Quere, were the several acts of assembly,
respecting the mode of acquiring titles to waste

218

22.

and unappropriated lands in the Northern
Neck, equivalent to an inquest of office, and
sufficient to authorize grants of the said lands
by the commonwealth, independently of the
said act of compromise? Hunter v. Fairfax's
Devisee,
218

Quære, whether, by virtue of the treaty of
1788, persons born in Great Britain, and re-
siding there on the 4th of July, 1776, could,
without ever thereafter becoming citizens of
Virginia, or of any one of the United Stater
of America, take and hold lands in Virginia, by
descent, or devise, accruing between that day
and the date of the said treaty?
ib.
See ATTORNEY IN FACT, No. 1,2,3. Betts v.
Cralle,

239

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. Lewis v. Madisons,
See PARTIES, No. 5. Lewis v. Madisons, ib.
Though land be sold in gross, for so much, be
it more or less; yet, if it be evident that both
parties 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 defi-
ciency. Hull v. Cunningham's Ex'r, 330
But if the purchaser do not (by eviction or
otherwise) lose the land he expected to get;
but make an entry for it as vacant, and ob-
tain a patent; the proper measure of re-
lief is only the amount of his expenditures
in procuring the patent, with a reasonable al-
lowance for trouble therein, and actual costs
of suit,

ib.

A purchaser who buys a tract of land as contain-
ing so many acres, more or less, and agrees to
take upon himself the risk, as to lines, or
quantity, (appearing also better acquainted
with the land than the vendor, against whom
there is no proof of fraud,) is not entitled to
any relief in equity, for a loss relating to the
risk undertaken,
ib. 336
See note to the same case, p.
338
Assumpsit, for the use and occupation of land
by permission of the plaintiff lies on an im-
plied as well as express promise. Sutton v.
Mandeville,

407

If tands be listed by the commissioner of the
revenue to a wrong person, sold by the sheriff
as the property of such person, and convey-
ed 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
25. The land of an infant being, by mistake, listed 35.
by the commissioner of revenue as the pro-
perty of another person, and sold, as such, for
taxes, in December, 1786; being bought by
the deputy sheriff, who sold it; conveyed to
him by the high sheriff in February, 1795; 36.
and afterwards sold again by the deputy she-
riff; the right of the infant was established
against the last purchaser; (who bought with
full notice of all the circumstances;) notwith-
standing the suit was not brought until six
years after the plaintiff attained his full age,
ib. 37.
26. See ASSETS, No. 1. Mason's Devisees v. Peter's
Adm❜rs,
437 58.
27. A judgment against the executor is no evi-
dence against the heirs or devisees of the
real estate,

ib.
28. A decree against devisees holding by several
and distinct devises ought not to be joint, but
pro rata,

ib.
29. Quære, whether, and under what circum- 39.
stances, a Court of Equity can decree a sale of
land descended or devised, to satisfy a bond or
simple contract creditor?
ib.
30. See PURCHASE, No. 1. Day v. Murdoch, 460
31. See COVENANT, No. 4. Austin's Adm'x v.
Whitlock's Ex'rs,

487 40.
32. If, by a sealed instrument, a vendor declare 41.
that he has sold to the vendee all his right to
certain land warrants, for which the survey- 42.
or's receipt has been taken; that, if patents
have issued in his name, he will transfer the 43.
same by deed; and, if not, desires that they
may issue to the vendee; agreeing to pay, or
deduct from the purchase-money, all expenses
which have accrued; he is bound to make a
deduction for a deficiency resulting from a
previous contract, by his agent, to allow the
locator one third of the land; though such
contract was not known to him at the time of 1.
his bargain with the vendee, to whom it was
equally unknown. Humphrey's Adm'r v. 2.
M'Clenachan's Adm'r and Heirs,
493

33. On a bill of injunction exhibited by the admi-
nistrator of the purchaser of a tract of land,
against the administrator and heirs of the 1.
vendor, (in whom the legal title remains,)
claiming compensation for a deficiency, credits
for payments, and a conveyance, the Court, on
allowing the compensation and the credits, 2.
may decree that the defendants shall convey
their title to certain trustees, to be by them 3.
conveyed to the heirs of the purchaser, (though
not parties to the suit,) if the balance of the
purchase-money be paid on or before a certain
day; and, if not, with power to sell as much of
the land as may be sufficient to pay such
balance, and to convey the residue, if any, to
the said heirs,
ib.
$4. In case of eviction after a conveyance made
with warranty, the value of the lost land, as at
the time of the eviction, gives the rule by
which the vendee is to be remunerated; but, 4.
when the contract is executory, a Court of
Equity will adjust it, upon principles of equity

510

537

The statute of frauds applies to an agreement,
between a purchaser of land and a third per-
son, that such person should be admitted as a
partner in the purchase; the proof of such
agreement being only parol evidence of sub-
sequent declarations and acknowledgments by
the parties. Henderson v. Hudson,
See WILLS, No. 5. Wyatt v. Sadler's Heirs,
A fee-simple estate in lands might pass by a
will (even before the act of 1785, c. 62.)
without words of perpetuity, or any words
equivalent; provided it appeared, from the
whole will taken together, that such was the
intention of the testator. Johnson and others v.
Johnson's Widow and Heirs,
Where an illiterate testator uses the same
words in disposing of his real, as in disposing
of his personal property, and in the same
clause of the will, it is fair to infer that he in-
tended to give them the same effect as to both
kinds of property,

549

ib.
See Dower, No. 1, 2. note to p. 554, 555
See MUTUAL ASSURANCE SOCIETY, No. 1,
2. Greenhow v. Barton,

590

LEGATEES.

ib.

119

150

A wealthy testator having bequeathed pecunia-
ry legacies to three of his daughters, to be
paid them, "if the money could be raised by