45

6. Where two defendants have appeared and 19.
pleaded an entry in the record that "the par-
ties came, &c., and the defendant L. acknow- 20.
ledged 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. ib.
7. 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 1.
other,

ib.

8. In such case, the plaintiff having, after the
judgment, 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 allow-
ed the principal; the Court, in reversing the
judgment, ought to have given the security
leave to plead puis darrein continuance; all
the proceedings having been brought up by a
writ of supersedeas. Ward v. Johnston,
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,

45

ib.

56

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
olerical misprision, and therefore amendable.
Digges's Ex'r v. Dunn's Ex'r,
In such case, if the judgment 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 quar
terly term,) the variance is immaterial,
ib.
See DISCOVERY, No. 2. Chichester's Ex'r
v. Vass's Adm'r,
98

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
Chancellor, but will itself direct such parties
to be made. Hooper and Wife v. Royster and
Wife,

119

ib.

In a suit for contribution against legatees or
distributees, the executor or administrator
when to be made a party; and when not,
On a settlement of accounts in a Court of Equi-
ty, a decree will be rendered, against a plain-
tiff, for a balance of account appearing due
to a defendant. Fitzgerald, Ex'r of Jones,
v. Jones,
In ejectment, if the term laid in the declara-
tion expire before the decision of the cause,
the practice is to grant leave to amend the
declaration by enlarging the term. Hunter v.
Fairfax's Devisee,

150

218

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,

460

What is such a deviation, from the voyage, as
will prevent the person insured from being
entitled to a return of premium, on a marine
insurance, "at and from Norfolk to Curracou,
with liberty of going to any other island in the

PROFITS.

4. In general a ward's expenses ought to be paid
out of the profits only of his estate; but, under
extraordinary circumstances, a guardian 1.
may be allowed for moneys paid and advanced
for the clothes, schooling and other necessary
expenses of the ward out of the principal of
such estate. Hooper und Wife v. Royster und
Wife,
2. The profits of the estate of an infant dying intes-
tate, (including the increase of slaves,) accru-
ing to such infant in his or her life-time, but
not applied to his or her use, or otherwise law-
fully disposed of, ought to go to the person,
or persons, inheriting such estate generally.
Dilliard v. Tomlinson, &c.

119

183
3. Interest on the hire of slaves disallowed, ib.
and Whitehorn v. Hines,
557

PROMISE.

98 3.

1. 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 2.
marriage be afterwards had with his consent;
the promise is sufficiently certain and obligato-
ry. Chichester's Ex'x v. Vass's Adm'r,
2. 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.
3. 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- 1.
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,
ib.
4. 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 1.
marriage. Paynes v. Coles,

373

5. Assumpsit for use and occupation of land, by
permission of the plaintiff, lies on an implied, 2.

as well as express promise. Sutton v. Mande-
ville,
407
6. A promise, by an obligor, after being informed
of the assignment of his bond, to pay the full
amount thereof to the assignee, is a strong
circumstance to prevent the assignee from
being affected by an equity of which he had
no notice. Mayo v. Giles's Adm`r, '

PROTEST.

3.

533

4.

PURCHASE.

See PURCHASER.

663

A factor and agent for a company of British
merchants having, in the year 1771, purcha-
sed, on their behalf, a tract of land in Virginia,
for a sum of money payable on demand, and
then received possession thereof for their use;
and a credit for the money having been enter-
ed in their books; the equitable title to, and
possession of, such land was thereby complete-
ly vested in the company; and under the act
of May session, 1779,"concerning escheats
and forfeitures from British subjects," the
same escheated to the Commonwealth, which,
on inquest found, became entitled, in the same
manner the company were entitled; but sub-
ject to the payment of so much only of the
purchase-money, remaining due, as did not
exceed the net amount for which the land
was sold by the escheator, reduced to present
current money, according to the 2d section
of that act; the said British company being
still liable for the residue of the said purchase-
money. Day ^v. Murdoch,

460

See VENDOR AND VENDEE, No. 10, 11, 12,
13. Humphrey's Adm'r v. M'Clenachan's
Adm'r and Heirs,
493. 500

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
purchase; the proof of such agreement being
only parol evidence of subsequent declarations
and acknowledgments of the parties. Hender-
son v. Hudson,

PURCHASE MONEY.

510

ib.

A purchasing agent is a competent witness to
prove that his principal had notice of an en-
cumbrance, notwithstanding such agent joined
in a deed conveying the property to the prin-
cipal free from the claim of any person what

38

62

330

9. Though land be sold in gross, for 30 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- 1.
ciency. Hull v. Cunningham's Ex'r,
10. 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.
11. 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 1.

338

2.

12. See note to the same case, p.
13. Where, by a decree in Chancery, so much of
the bill as claims one of two separate subjects
in controversy is dismissed, and, as to the
other, the rights of the parties are determin
ed, but an account is directed to be taken, and
therefore the decrec is not final; quære,
whether any subsequent decree could affect
the rights of bona fide purchasers of property
as to which the bill was dismissed? Templeman 2.
v. Steptoe,

339

14. See EQUITY, No. 24. Yancey v. Hopkins, 419
15. See INFANT, No. 9.

ib.
16. See MORTGAGE, No. 1. Green v. Price, 449
17. See PURCHASE, No. 1. Day y. Murdoch,
460 3.
18. See VENDOR AND VENDEE, No. 10, 11,
12, 13. Humphrey's Adm'r v. McClenachan's
Adm'r and Heirs,
493. 500,
19. See PURCHASE, No. 3. Henderson v. Hudson,
510

20. It seems, that a bona fide purchaser, without
notice of fraud, having received a deed from 4.

But quære, in case the estate of the fraudulent
vendor be not sufficient to make good the loss?
ib.

A fee-simple estate in lands might pass by à
will (even before the act of 1785, c. 62.)
without words of perpetuity, or any words
equivalent thereto; 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, 549
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,

RECORD.

ib.

In a suit in Chancery, the bill having referred
to the proceedings in another suit, as now
remaining of record in the same Court;" and
the answer having admitted that such a suit
was brought, and such a decree as stated in
the bill existed; the Court of Appeals will
award a writ of certiorari for a transcript of
the record referred to, and receive it as eri
dence, so far as admitted by the answer.
Hooper and Wife v. Royster and Wife,
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.
Eppes v. Cralle,

119

258
A record of one suit cannot be read as evidence
in another, unless both the parties, or those
under whom they claim, were parties to both
suits; it being a rule that a document cannot be
used against a party who could not avail him-
self of it, in case it made in his favour. Paynez
v. Coles and others,
37S
A record of one suit cannot be read as evidence

in another, on the ground that the defendant 4. and one of the plaintiff's in the latter suit were parties to the former, and that the same point was in controversy in both, another plaintiff, and the person under whom both the said plaintiff's jointly claim, not having been parties to such former suit. Chapmans v. Chapman, 398 5. 5. In such case, the circumstance, that the "writings and evidence" in the former suit were 6. read at the hearing of the latter, without any 7. exception taken at the time appearing on the record, is no proof that this was done by consent of parties, and does not preclude the objection from being taken in the appellate Court; the defendant in his answer having 8. objected to the admission of the verdict and other proceedings in the former suit, but offered to agree that the depositions only might be read; to which offer no assent appeared on the part of the plaintiff,

RELATOR.

ib.

What is the measure of relief in equity, for a deficiency in land sold, 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 obtain a patent. See PURCHASER, No. 10. Hull v. Cunningham's Ex'r, 330 In what case a purchaser is entitled to no relief for a loss. See PURCHASER, No. 11. ib. 336 See note to the same case, 338 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. Paynes v. Coles,

373

Quere, whether a Court of Equity ought, under any circumstances, to assist, to the prejudice of a posthumous child, the claim of devisees under a will (made before the 1st of Janu ary, 1787) by a testator who had no child living, and was ignorant that his wife was in a state of pregnancy?

ib.

See EQUITY, No. 24. Yancey v. Hopkins, 419 See INFANT, No. 9.

ib.

1. Where a plaintiff sues in Chancery for a convey. 1. ance of a specific tract of land, and also for a conveyance of other lands to make up a deficiency 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- 2. creeing the first mentioned conveyance, (the deficiency and the sum to be allowed for it, being ascertained,) will go on to decree the compensation, without turning over the party to a Court of Law. Chinn v. Heale,

63

493

ib.

See INJUNCTION, No. 2. Humphrey's Adm'r v. M'Clenachan's Admʼr and Heirs, What is the measure of relief in case of eviction after a conveyance made with warranty, And in case of a deficiency in land purchased, ib. In a suit in Chancery brought by a widow and devisees to recover a tract of land, in which the widow is entitled to DOWER, the Court, under the prayer for general relief, will deoree assignment of dower to the widow, partition of the land among the devisees, and rents and profits against the defendants. Note to p. 554

Under the prayer for general relief, the plaintiff may have any particular relief, not inconsistent with the case made by his bill. Same note,

RELINQUISHMENT.

555

RENTS.

2. See DISCOVERY, No. 2. Chichester's Ex'x v. Vass's Adm'r,

98

See RENTS.

VOL. I.

4 P