An answer in Chancery (though, in form, re- sponsive to a question put in the bill) is not evidence, where it asserts a right, affirmative- ly, in opposition to the plaintiff's demand; but the defendant is as much bound to establish such assertion by independent testimony, as the plaintiff is to sustain his bill. Paynes v. Coles,
378 An issue out of Chancery ought not to be di- rected to try a claim altogether unsupported by testimony, or a title not alleged in the bill, but suggested in the answer, without proof, ib.
. See TREATY, No. 1. Hunter v. Fairfax's 5. Upon an appeal from a decree in Chancery, an Devisee,
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 7. clerical misprision, and therefore amendable. Digges's Ex'r v. Dunn's Ex'r, 56
2. In ejectment, if the term laid in the declaration expire before the decision of the cause, the practice is to grant leave to amend the declara- 8. tion by enlarging the term. Hunter v. Fair- fax's Devisee,
3. 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,
error to the injury of the appellee ought to be corrected, although he did not appeal. Day v. Murdoch, 460 See COURT OF APPEALS, GENERAL RULE OF, relating to the correction of such errors as operate to the injury of the appellee, ib.
If a Court give a right judgment for a wrong rea- son, it ought, nevertheless, to be aflirmed, ib. In reviewing a judgment by default on a forth- coming bond, the Appellate Court will com-
1. A simple contract creditor, having obtained a judgment by default against an executor, can- not maintain a suit in equity, for marshatting assets, against devisees of the landed property, until he has fully prosecuted his claim at law, against the executor and his securities. Ma- son's Devisees v. Peter's Adm'rs, 437
taken to the sheriff for the time being, and his successors in office; not his executors, admi- nistrators or assigns. Meredith's Adm'x v. Duval,
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. Quære, can such a bond, so taken, be assigned to the creditor by the succeeding sheriff? ib. If the prisoner depart from the rules by an illegal discharge from the sheriff, the credit- or, having an assignment of the bond, has his election to bring suit upon it, or to sue the sheriff,
See BOND, No. 13, 14. Atwell's Adm'rs v- Toroles,
1. The practice of law is not an office, or place, under the Commonwealth. Leigh's case,
468 2. An attorney at law is not bound, as a requisite to his admission to the bar of any Court, to take the oath prescribed by the 3d section of the act to suppress duelling,
ATTORNEY IN FACT.
1. If an attorney in fact undertake to have a tract of land (with the situation of which he does not profess himself personally acquainted) survey- ed for a part thereof, and upon terms "in case the land cannot be found, to have a propor- tional part of the damages which may be reco vered by his employer of the person of whom he bought, and a proportional part of his ex- penses paid," he is not bound to have it done at all events: but only to a faithful perform- ance, according to the best information he can obtain. Betts v. Cralle, 258 ib. 2. In this case, therefore, the attorney in fact being ib. imposed upon by the County Surveyor, and, in consequence of such imposition, having a sur- vey made of land not purchased by his employ- er, was held not responsible for his mistake, and not thereby barred of his claims under the contract,
2. A judgment by default, against an executor, is prima facie admission of assets,
3. See EXECUTORS AND ADMINISTRATORS, No. 14.
1. An assignment made after the net of 1795, by which bonds with collateral conditions were made assignable, is good, though the bond was 3. dated before that act. Meredith's Adm’x v. Duval,
2. A bond for keeping the prison rules should be
But, after the survey, the employer having exe cuted a bond to the attorney to make him a conveyance of part of the land so surveyed; and having snatched and torn the bond sa
2. The plea of "arbitrament and award" (in so many words) is a mere nullity, and no evidence 5. should be received to support it, notwithstand- ing the plaintiff replied generally,
1. A decree, dismissing so much of a bill as claims
Covenant (as well as debt) lies on a bond with collateral condition. Ward v. Johnston, 45 As to the method of assigning breaches in such action of covenant, ib.
A co-obligor, in a joint and several bond, may (though described as a security) be consider- ed as stipulating for the performance of the condition; the words being "if the above bound L, and W. his security, shall, &c., then this obligation to be void," &c. A hond being given to make a title to a particu- lar tract of land, "to contain a certain num- ber of acres," but not binding the obligors to convey any other specific lands to make good a deficiency; the only remedy for such defi- ciency is a proportional compensation in mo- ney, according to the price agreed on for the whole tract, with lawful interest from the time the same was payable. Chinn v. Heale, 63
In debt on a bond, if the defendant crave oyer, and then plead "conditions performed," he cannot tay, advantage of a variance between the decl. ion and bond; and, though the plaintiff clare against one of several obli- gors, hout stating that they were severally botn, yet, if the bond appear to be joint and several, it is sufficient. Meredith's "Adm’x v. Duval,
An assignment made after the act of 1795, by which bonds with collateral conditions were made assignable, is good, though the bond was dated before that act,
A bond for keeping the prison rules should be taken to the sheriff for the time being, and his successors in office; not his executors, ad- ministrators or assigns,
But such bond, though taken to the sheriff as such, and to "his executors, administrators or assigns," may be assigned by him to the creditor; and a suit may be maintained upon it,
one of two separate subjects in controversy, 12. In an action on such bond, the plaintiff is on- and, as to the other, determining also the ly required to shew a departure from the VOL. P.
rules: the burden of proof then devolves on the defendant to shew that the prisoner was discharged by due course of law. Meredith's Adm'x v. Duval,
13. At the foot of a bond, with a penalty and con- 26. dition in the usual form, signed and sealed by I. S., a writing is signed and sealed by T. A., in the following words: "1, T. A., join in the above obligation with I. S., and am his security for the above sum of (mentioning the sum specified in the condition,) this, seems, is a joint obligation; and judgment may be rendered against T. A. for the penalty, to be discharged by the sum in the condition, with interest. Atwell's Adm'rs v. Towles, 175 14. An assignment of such an instrument, by the words, "I assign the within obligation," is a good assignment of the claim upon T. A. as well as I. S.,
1. In ejectment, if the jury find a special verdict, shewing the plaintiff entitled to a certain num- ber 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
ib. 15. Quære, whether a declaration against the ad- ministrator of one of two joint obligors, aver- 1. ring that neither the defendant, nor the other obligor, nor any representative of his had paid the debt; (without stating that such other obli- gor was dead, or that the defendant's intestate had survived him;) and alleging, in assigning the breach, that right of action had accrued under the premises, against the defendant's intestate, (without setting forth in what man- 2. ner,) be good after verdict?
ib. 16. In an action of debt on a bond, the judgment 3. 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 penalty,
BREACH OF TRUST AND CONFIDENCE
ib. 1. Is a circumstance from which FRAUD may be presumed. Whitehorn and Wife v. Hines and others,,
17. The taking in execution the body of one of two joint obligors no satisfaction of the debt, and does not bar an action against the other obligor,
18. See ATTORNEY IN FACT No. 1, 2, 3. Betts v. Cralle,
258 1. See TREATY, No. 1. Hunter v. Fairfax's Devisee, 218
19. See VENDOR AND VENDE No. 7. Hull v. Cunningham's Ex'r,
20. Same point decided as in Leftwich
1 H. & M. 61.
Newell v. Wood,
21. 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- 1. tin's Adm'x v. Whitlock's Ex'rs, 22. See PRISON RULES, No. 8, 9, 10, 11. v. Tebbs and Wife, 23. Although the assignee of a bond, with or with- out notice, takes it subject to all the equity of the obligor, yet such equity must be clearly and manifestly established by proof, before it shall affect an assignee without notice; espe. cially, if the obligor, after the assignment, promise payment of the full amount of the 1. bond to the assignee. Mayo v. Giles's Adm'r,
1. In a suit in Chancery, the bill having referred to the proceedings in another suit, "as now re- maining 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 re- cord referred to, and receive it as evidence, so 10. far as admitted by the answer. Hooper and Wife v. Royster and Wife,
11. On a settlement of accounts in a Court of Equi- ty, a decree will be rendered against a plaintiff for a balance of account appearing due to a de- fendant,
1. As to the liability in equity of a purchaser hav- ing notice of an encumbrance; see Blair v. Oroles, 38 12. 2. In a suit against such purchaser, a person who 13. joined the vendor in the deed, for the purpose of relinquishing a collateral claim, need not be 14. a party, ib.
3. An answer filed in the name of one of three ex- 15. ecutors (the decree being in favour of the plaintiff) is not to be taken as their joint an- swer. See ANSWER, No. 1. Chinn v. Heale, 63 4. Where a plaintiff sues in Chancery for a convey. auce 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 deficien- cy he prays a discovery;) but, according to the 16. contract, appears entitled to compensation in money, and not in lands; the Court, after de- 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 17. to a Court of Law. Chinn v. Heale, 63 18. 5. In cases where it is proper and necessary to go 19. into equity for a discovery, the Court (having 20. possession of the subject) will proceed to 21. decide the cause, without turning the parties 22. round to a Court of Law, notwithstanding (if 23. such discovery had not been necessary) relief might originally have been had at law. Chi- 24. chester's Ex'x v. Vass's Adm'r,
ib. See JURISDICTION, No. 3. Depew v. Howard and Wife,
See DECREE, NO. 8, 9. Templeman v. Steptoe,
An answer in Chancery (though, in form, re- sponsive to a question put in the bill) is not evi- dence, where it asserts a right, affirmatively, in opposition to the plaintiff's demand; but the defendant is as much bound to establish such assertion by independent testimony, as the plaintiff is to sustain his bill. Paynes v. Coles,
An issue out of Chancery ought not to be direct- ed to try a claim altogether unsupported by testimony, or a title not alleged in the bill, but suggested in the answer, without proof. Nei- ther is this rule to be varied by the circum- stance that infants are interested, ib. See EQUITY, No. 22, 23. See EQUITY, No. 24. Yancey v. Hopkins, 419 See EQUITY, 29, 30. Todd v. Bowyer, 447 See MORTGAGE, No. 1. Green v. Price, 449 See PURCHASE, No. 1. Day v. Murdoch, 460 See APPEAL, No. 5, 6. See INJUNCTION, No. 2. Humphrey's Adm'r v. M'Clenachan's Adm'r and Heirs, 493 See VENDOR AND VENDEE, No. 12, 13.
See SET-OFF, No. 1. Dangerfield v. Rootes,
6. In a suit in Chancery, the bill having referred to 25. the proceedings in another suit, as now re- maining of record in the same Court;" and the 26. answer having admitted that such a suit was 27. brought, and such a decree as stated in the bill existed; the Court of Appeals will award a 28. See FRAUD, No. 4.
writ of certiorari for a transcript of the record 29. See EQUITY, No. 43. Moon v. Campbell, 604 referred to, and receive it as evidence, so far as admitted by the answer. Hooper and Wife
7. An administrator to whom a credit for a sum of 1. See DEPOSITIONS, No. 1. Marshall v. Fris money paid by him to the guardian of one of the distributees has been allowed by a final decree in Chancery, is a competent witness, in behalf of the award, to prove the payment of the money to her guardian; though the 1. latter was no party to the decree,
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
A person who joined in a deed for the purpose of relinquishing a collateral claim need not he a party to a suit in equity, by the claimant of an encumbrance, against a purchaser having notice. Blair v. Qules, 38
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