REVIEW.

ib.

ib.

2.

SATISFACTION.

The taking in execution the body of one of two
joint obligors is no satisfaction of the debt, and
does not bar an action against the other obligor.
Atwell's Adm'rs v. Towles,
175

SCIRE FACIAS.

A patent may be declared void, for defects ap-
parent on its face, without the necessity of
resorting to a scire fucius to repeal it. Alex-
ander v. Greenup,

134
Quere, whether, and from what Court, a scire
facias to repeal a patent can issue in Virginia?
ib.

SCROLL.

A scroll annexed to a signature is not sufficient
to make a sealed instrument, unless it appear,
from some expression in the body of the in-
strument, that it was intended as such. Aus-
tin's Adm'x v. Whitlock's Ex'rs,
487

SEAL.

See SCROLL.
SECURITIES.

1

1. An action cannot be maintained against the se-
curities of an executor or administrator until a
devastavit has been established by means of a
second suit, after a judgment against the execu-
tor or administrator
as such. Gordon's
Adm'rs v. The Justices of Frederick,
A co-obligor, in a joint and several bond, may
(though described as a security) be considered
as stipulating for the performance of the con-
dition; the words being "if the above bound
L., and W. his security, shall, &c. then this
obligation to be void," &c. Ward v. Johnston,
After a confession of judgment by the principal,
further proceedings may be had against the
security,

3.

4.

1. Where appearance bail is required, the defend-
ant cannot appear at the rules, without giving
special bail. Bradley v. Welch,

S

SALE.

See VENDOR AND VENDEE.

284

45

ib.

In such case, if the judgment was confessed, by
virtue of an agreement (to which the security
was not a party) that a stay of execution should
be allowed the principal, the security ought to
be permitted to plead that circumstance puis
darrein continuance,
ib.
5. Quare, whether a security is exonerated at law,
or in equity, by the plaintiff's accepting a con-
fession of judgment from the principal, and
granting him a stay of execution by an agree
ment to which the security was not a party?

In what case the sheriff is responsible to the
plaintiff if the property be not produced on
the day of sale,
ib.

Parol evidence is admissible to prove that a fi.
fu. was levied, though no return was made up-
on it,
ib.

1. Quare, whether, by virtue of the treaty of
1785, persons born in Great Britain, and re-
siding there on the 4th of July, 1776, could,
without ever thereafter becoming citizens of

4.

1. See ATTORNEY IN FACT, No. 1, 2, 3. Betts
v. Cralle,
238
2. On a joint plea of "not guilty," in trespass vi
et armis against two defendants, for breaking
the plaintiff's close, and beating his slaves, the
defendants ought not to be permitted to give
in evidence, by way of mitigation of damages,
a license from the plaintiff to one of them, to
visit his negro quarters, and chastise any of his 1.
slaves who might be found acting improperly;
the battery being committed by the other de-
fendant; and no proof appearing that the
slaves who were beaten bad acted improperly.
Brown and Boisseau v. May,

TRUST AND CONFIDENCE,

288 2.

1. Breach of, is a circumstance from which fraud
may be presumed in a Court of Equity.
Whitehorn and Wife v. Hines and others, 557

U

USE AND OCCUPATION.

In reviewing a judgment by default on a forth-
coming bond, the appellate Court will compare
it with the execution on which it was taken,
ib.

VENDOR AND VENDEE.
See PURCHASER.

38

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. Blair v. Owles,
A purchasing agent is a competent witness to
prove that his principal had notice of an en-
cumbrance, notwithstanding such agent join-
ed in a deed conveying the property to the
principal free from the claim of any person
whatsoever: for the vendor himself may be
purchasing agent for the vendee by his appoint-
ment; and the yendee, by constituting him his
agent, makes him a competent witness to prove
the notice,

ib.

3. A bond being given to make a title to a particu
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. Chinn v. Heale, 63

1. Assumpsit, for use and occupation of land by
permission of the plaintiff, lies on an implied,
as well as express promise. Sutton v. Man-
deville,
407
4. In a suit in Chancery to recover a tract of land
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, i
seems, that the vendor, or his legal represen-
tatives, ought to be parties. Lewis v. Madi-

V

VARIANCE.

303

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 obtain
a patent; the proper measure of relief is only
the amount of his expenditures in procuring
the patent, with a reasonable allowance for
trouble therein, and actual costs of suit,
Quære, whether, in this case, an action at law
could have been maintained upon the title
bond?

ib.

ib.

A purchaser who huys 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 quan-

670

tity, (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. Hull v. Cunningham's Ex'r,
336

338

VENIRE DE NOVO.

See VERDICT.

VERDICT.

1. In ejectment, if the jury find a special ver
dict 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. Clay v.
White,
162

9. See note to same case, p.
10. If, by a sealed instrument, a vendor declare
that he has sold to the vendee all his right to
certain land warrants, for which the survey.
or's receipt has been taken; that, if patents
have issued in his name, he will transfer the
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 S.

V.

493

contract was not known to him at the time of
his bargain with the vendee, to whom it was
equally unknown. Humphrey's Adm'r
Clenachan's Adm'r and Heirs,
11. On a bill of injunction exhibited by the admi-
nistrator of the purchaser of a tract of land,
against the administrator and heirs of
4.
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-
ib.
due, if any, to the said heirs,
12. In case of eviction after a conveyance made 6.
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,
when the contract is executory, a Court of
Equity will adjust it, upon principles of equity,
according to the circumstances. Same case, 7.

500

15. In case of a deficiency, the value at the time
of the contract gives the rule; of which the
purchase-money is the standard, where it does
not appear that the actual value was differ-
ent,

ib.
14. See PURCHASE, No. 3. Henderson v. Hudson,

510

5.

15. Sec PURCHASER, No. 20, 21. Whitehorn v. 1.
Ilines,

557

258

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,
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
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
inquiry as the law authorizes,) if the jury
assessed such erroneous damages separately,
and the Court did not direct the same to be
paid, but only the damages properly assessed,
ib.

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

405

the petitioner, Mayo v. Turner,
If, upon a special verdict in ejectment, it be
uncertain whether the defendant, or those
under whom he claims, had 20 years' posses
sion, exclusive of the said 5 years and 174 days,
a venire de novo ought to be awarded. Clay v.
Ransome,

454

In an action against the sheriff for an escape, a
verdict, in general terms, for the plaintiff, is
not sufficient to authorize a judgment. An
express finding by the Jury according to the
act of 1792, concerning escapes, is absolutely
necessary. Hooe v. Tebbs and Wife,

VOUCHERS.

501

15. See DEED, No 10, 11. Harvey and Wife v.
Pecks,

518

17. See FRAUD, No. 4. Whitehorn v. lines,

557

18. A vendor of land, according to certain lines,
must be presumed interested, and therefore
incompetent, as a witness, to establish those
lines; unless it appear that he did not warrant
the title. Moon v. Campbell, Executor of
McDonald,

VOYAGE.

See DEVIATION.

W
WARRANTY.

600 1. What is the measure of relief in case of evic-