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
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.
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
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,
1. Where appearance bail is required, the defend- ant cannot appear at the rules, without giving special bail. Bradley v. Welch,
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?
8. At the foot of a bond, with a penalty and con- 9. dition in the usual form, signed and sealed by I. S a writing is signed and sealed by T. A. in the following words: "I, T. A. join in the 10. above obligation with I. S., and am his securi- ty for the above sum of," (mentioning the sum specified in the condition,) this, it seems, is a joint obligation; and judgment may be ren- 11. dered against T. A. for the penalty, to be dis- 12. charged by the sum in the condition, with in- terest. Atwell's Adm'rs v. Towles, 175 13. 9. An assignment of such an instrument, by the 14. words, "I assign the within obligation," is a good assignment of the claim upon T. A. as well as I. S. ib. 10. The taking in execution the body of one of two joint obligors is no satisfaction of the debt, and 15. does not bar an action against the other obligor.
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.
A sheriff may be permitted, by order of Court, to make a return upon an execution, or to amend it, according to the truth of the case, at any time after the return day, See EXECUTION, No. 9, 10. See EQUITY, No. 24. Yancey v. Hopkins, See INFANT, No. 9.
If, in a suit upon a prison-bounds bond, a Court, possessing competent jurisdiction, adjudge the bond void; the plaintiff may sue the sherif without appealing from the judgment, though erroneous. Hooe v. Tebbs and Wife, In such case the sheriff, though not a party to the suit on the bond, is bound by the judg ment, unless he can prove it was obtained by collusion,
See ESCAPE, No. 1. See RENTS, No. 1, 2. Smiths v. Ambler, 596
76 2. A bond for keeping the prison rules should be taken to the sheriff for the time being, and his 3. successors in office, not to his "executors, ad- 4. ministrators or assigns,"
3. But such bond, though taken to the sheriff, as such, and to "his executors, administrators or assigns," may be assigned by him to the credit- or; and a suit may be maintained upon it, ib. 4. Quere, can such a bond, so taken, be assigned to the creditor by the succeeding sheriff'? ib. 5. The sheriff cannot legally discharge a prisoner from the rules unless he be actually insolvent, and, being so, the plaintiff, having notice thereof, refuse to pay his fecs, or to give bond for the payment thereof,
6. If the prisoner depart from the rules by an illegal discharge from the sheriff, the creditor, having an assignment of the bond, has his election to bring suit upon it, or to sue the sheriff,
7. In what manner a sheriff may levy a fieri facias.
On a joint plea of "not guilty," in trespass v 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 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 had acted improperly. Brown and Boisseau v. May,
Interest on the hire of slaves disallowed. White- horn v. Hines,
1. Where a plaintiff sues in Chancery for a convey- ance of a specific tract of land, and also for a 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 1. ed for it being ascertained,) will go on to de- 2. cree the compensation, without turning over the party to a Court of Law. Chinn v. Heale,
63 2. It seems that a contract, under seal, between two brothers, by which one of them, for a fair and valuable consideration, agrees, that, when he shall obtain possession of a tract of land expected to be devised to him by their father, he will convey it to the other, is not contra bonos mores, and may support an ac- 3. tion of covenant at law, or be enforced specifi- cally in a Court of Equity. Lewis v. Madi-
3. See INJUNCTION, No. 2. Humphrey's Adm`r v. M'Clenachan's Adm'r and Heirs, 403
1. In an action of covenant on a bond with collate- ral condition, if there be no stipulation, by ar- ticles, or in the condition itself, that it shall be performed, the breach assigned should be the failing to pay the penalty: but, where such stipulation is either expressed or implied, the failing to perform the condition may be 1. assigned as the breach, Ward v. Johnston, 45 2. 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.
damages, besides those which properly ought to be assessed, but find them separately, and the Court do not direct such erroneous dama- ges to be paid; it should be regarded as sur- plusage; the petition for the writ of ad quod damnum having prayed for such inquiry only as the law authorizes. Eppes v. Cralle, 258
See ENTRIES AND SURVEYS. What degree of diligence is required of an at- torney in fact undertaking to have a tract of land (with the situation of which he does not profess himself personally acquainted) sur- veyed for a part thereof, and upon terms "in case the land cannot be found, to have a pro- portional part of the damages which may be recovered, by his employer of the person of whom he bought, and a proportional part of his expenses paid. Betts v. Cralle, In this case the attorney in fact being imposed upon by the County Surveyor, and, in conse- quence of such imposition, having a survey made of land not purchased by his employer, was held not responsible for his mistake, and not thereby barred of his claims under the contract, ib.
The land of an infant being, by mistake, listed by the Commissioner of the 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; 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. 419 Yancey v. Hopkins,
A debtor within the prison rules is still a true prisoner in the eye of the law: and, as such, should be transferred by the sheriff to his suc- cessor in office. Meredith's Adm'x v. Duval, 76
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
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,
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
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.
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,
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-
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?
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-
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
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.
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.
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,
15. Sec PURCHASER, No. 20, 21. Whitehorn v. 1. Ilines,
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
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,
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,
15. See DEED, No 10, 11. Harvey and Wife v. Pecks,
17. See FRAUD, No. 4. Whitehorn v. lines,
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,
600 1. What is the measure of relief in case of evic-
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