1. A defendant in ejectment is protected by 20 LOCATION. 1. In what case a vendor is bound to make com-. pensation to the vendee for a deficiency resulting from a previous contract to allow the locator one third of the lands mphrey's 3. Adm'r v. M'Clenachan's Adm'r and Heirs, LUNATIC. See IDIOT. A marine insurance, "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 Richmond," must be understood as an insurance "at and from Norfolk to Curracoa, in the first place, with liberty of going from Curracoa to any other island," &c. Marine Insurance Company of Alexandria v. Stras, 408 If, therefore, the vessel put into the island of St. Thomas, and thence return to Norfolk, without ever going to Curracoa, it is a deviation from the voyage; and there being no proof that such deviation was occasioned by stress of weather, or other unavoidable accídent, the person insured is entitled to no return of premium; such being the terms of the policy, ib. A protest before a notary public, by the master of the vessel, after his return to Virginia, is no evidence in such case: and, quere, would such a protest, made at St. Thomas's, have been any evidence; the person who made it being alive, and no impediment to prevent his deposition from being regularly taken? MARSHALLING ASSETS. See ASSETS.. MARRIAGE. ib. 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 obligatory. Chichester's Ex'x v. Fass's Adm'r, 98 ib. 493 ib. 4. A husband, surviving his wife, (or, in case of his death afterwards, his executor or adminis trator,) may maintain an action on a personal contract made with the wife before the marriage, or for their joint benefit afterwards; notwithstanding he did not take administration on her estate. Chichester's Ex'x v. Vass's Adm'r, 98 3. 5. The aid of a Court of Equity ought not to be 4 afforded to set up a marriage promise, when 5. the effect would be to disinherit (against the intention of the parties) the only issue of the marriage. Paynes v. Coles, 6. See DEED, No. 10. Pecks, 373 Harvey and Wife v. 1. MAXIMS. 518 258 1. 1. What degree of uncertainty and inaccuracy of language is sufficient to set aside the finding of a Jury in a mill case. Eppes v. Cralle, 2. On a petition for leave to add to the height of a mill-dam, the only proper subject of inquiry is, what damages will be occasioned by the proposed addition. It is error, therefore, to direet the Jury to assess such other damages, accruing from the dam already erected, as were not contemplated by the original Jury, 2. ib. 3. 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 inquiry as the law authorizes,) if the Jury as sessed such erroneous damages separately, and the Court did not direct the same to be paid, ib. but only the damages properly assessed, 4. 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, 1. and therefore did not examine the witnesses, ib. 5. The finding of a Jury, in a mill case, that "probably the health of certain families who live near the pond will be annoyed by the stagnation of the water," is conclusive against the petitioner. Mayo v. Turner, MISTAKE. 405 Quere, whether the purchaser of property, for which a declaration in the Mutual Assurance Society against fire on buildings, has been made by the vendor, be liable for the premium; no policy of insurance having been issued, and no notice of such declaration given, until after payment of the purchase-money? And, if he be liable, is the proper remedy against him by motion in a summary way, or by action at com mon law? Greenhow v. Barton, Quære, also; is the property declared for lia ble, in the possession of the purchaser, who bought and paid for it, without notice of such declaration? N NORTHERN NECK OF VIRGINIA. 590 ib 2. 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 o the lands, in the Northern Neck of Virginia as were waste and unappropriated at the time of the death of Lord Fairfax, was clearly ex tinguished. Hunter v. Fairfax's Devisee, 218 40 1. Of a lien or encumbrance on property binds the 38 2. A purchaser, with notice of an annual encum- ib. ib. the fraudulent vendor. But quære, in case In such case, the circumstance that the person NULLA BONA. OFFICE. 6. Under what circumstances a deposition taken TIONS, No. 3. Marshall v. Frisbie, 247 mere 7. Quere, whether commissioners appointed to 8. The rule, that a purchaser is bound by notice at 11. An assignee of a bond, without notice, onght 533 under the Commonwealth. Leigh's case, 468 cannot take advantage of a variance between 5. In a suit in Chancery to recover a tract of land the declaration and bond. Meredith's Adm'x v. Duval, P PAPER MONEY. 76 119 6. 7. Money received, by a guardian for a ward, during the paper money times, ought to be re- 8. duced by the scale of depreciation; to be applied as on the last day of the year in which it was received. Hooper and Wife v. Royster and Wife, 2. If money was received, by a guardian for a ward, within six months previous to the 1st of January, 1777, (when the scale of depreciation commenced,) it should be reduced according 1. to the scale, as at the end of six months from the time when received, ib. 3. A payment in paper money, by a British debtor to an American ereditor, operated a full discharge, to its nominal amount, of a current money debt contracted in specie; notwithstanding the creditor made objections to receiving the paper money, and observed, at the time, that he would keep it safe for the debtor but did not consider it as a payment, though intended as such by the debtor; and notwithstanding the receipt contained a reservation 1. that, since the creditor had demanded the debt when the rate of exchange was 15 per cent., he therefore claimed so much as might be allowed him, on that account, by arbitrators afterwards to have been (but who never were) appointed. Day v. Murdoch, 1. See PURCHASE, No. 1. PARTIES. 460 ib. 2. 1. In a suit in equity by the claimant of an encumbrance 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. Blair v. Owles, 38 5. 2. 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 4. decree in Chancery, is a competent witness, in behalf of the ward, to prove the payment of the money to her guardian; though such 5. guardian was no party to the decree. Hooper and Wife v. Royster and Wife, 119 3. On an appeal from an interlocutory decree, if proper parties to the suit appear to be wanting, the Court of Appeals will not leave it to the 6. Chancellor, but will itself direct such parties to be made, ib. 4. In a suit for contribution against legatees or distributees, 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 7. of such executorship or administration has been regularly made up, and the estate thereupon delivered over to the legatees or distribütees, ib against a vendee, on the ground that the ven dor had previously agreed to convey the same land in a certain event, to the plaintiff, it seems, that the vendor, or his legal representatives, ought to be parties. Lewis v. Madisons, 303 See EVIDENCE, No. 16. Paynes v. Coles, 373 See EVIDENCE, No. 17, 18. Chapmans v. 398 Chapman, In a Court of Equity, a plaintiff may be decreed to execute a release, and to procure a third person (under whom he claims) to join him therein, without making such person a party to the suit. Moon v. Campbell, PARTNERSHIP. 60% The statute to prevent frauds and perjuries applies to an agreement between a purchaser of land, and a third person, that such third person should be admitted as a partner in the purehase; the proof of such agreement being only parol evidence of subsequent declarations and acknowledgments by the parties. Henderson v. Hudson, 510 PATENT FOR LAND. A patent from the Commonwealth, containing ≈ 134 recital "that the land was escheated from a certain I. M., deceased;" and granting the same, "by virtue of an entry made in the office of the late Lord Proprietor of the Northern Neck, and in consideration of the ancient 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, The Commonwealth, under the existing laws,, cannot grant eseheated lands, without a previous inquest of office, and then not (as waste and unappropriated lands) upon entries and surveys; but upon sales by the escheators, ib. A patent may be declared void, for defects apparent on its face; without the necessity of resorting to a scire facias to repeal it, Quere, whether, and from what Court, a scire facias to repeal a patent can issue in Virginia? ib. iò. It is not necessary for a patentec 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. White, 162 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.. Quare, were the several acts of Assembly, respecting, the mode of acquiring titles to waste and unappropriated lands in the Norther Neck, equivalent to an inquest of office, and sufficient to authorize grants of the said lands 1. An award made pendente lite cannot be given in evidence upon the plea of non assumpsit. Harrison v. Brock, 1. In an action of covenant on a hond with collate- 2. ral condition, if there be no stipulation, by artieles, or in the condition itself, that it shall be performed, the breach assigned should be the failing to pay the penalty. Wurd v. Johnston, 3. 45 22 ib. The plea "arbitrament and award" (in so many words) is a mere nullity, and no evidence should be received to support it, notwithstanding the plaintiff replied generally, Where two defendants have appeared and pleaded, 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 understood as a judgment against both on the confession of one, and therefore erroneous. Ward v. Johnston, 45 ib. In such case, after confession of judgment by the principal, if further proceedings be taken against the security, the latter ought to be permitted to plead puis darrein continuance, 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 principal, Quære, whether such plea, if demurred to, would be good in law to exonerate the security? ib.. In debt on a bond, if the defendant crave oyer, and then plead "conditions performed," he cannot take advantage of a variance between the declaration and bond. See DECLARATION, No. 1. Meredith's Adm'x v. Durval, On a settlement of accounts in a Court of Equi- 1. See LANDLORD, No. 1, 2. Smiths v. Ambler, ty, a decree will be rendered against a plaintiff for a balance of account appearing due to a defendant. Fitzgerald, Ex'r of Jones, v. Jones, 150 2. See EVIDENCE, No. 17, 18. Chapmans v. 1. Chapman, 398 3. See INJUNCTION, No. 1. Todd v. Bowyer, 447 4. See ESCAPE, No. 1. Hooe v. Tebbs and Wife, 501 5. It seems, that a prison-bounds bond, taken payable to the plaintiff, is good at common law, and an action may be maintained upon it, ib. POLICY OF INSURANCE. 596 |