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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.

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. See TREATY, No. 1. Hunter v. Fairfax's 5. Upon an appeal from a decree in Chancery, an
Devisee,

AMENDMENT.

218

6.

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,

218 9.

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,

10.

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.

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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-

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ASSETS.

22

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,

76

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,

ib.

See BOND, No. 13, 14. Atwell's Adm'rs v-
Toroles,

175

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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.

ib.

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,

ib.

3. See EXECUTORS AND ADMINISTRATORS,
No. 14.

4. See EQUITY, No. 28.

ASSIGNMENT.

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,

76

2. A bond for keeping the prison rules should be

ib.

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

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AWARD.

419 3.

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4.

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,

B

BAIL.

ib.

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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.

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

TY

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,

RT

76

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,

ib.

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,

ib.

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,

ib.

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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.

A L

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,

76

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.,

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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,

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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,

ib.

18. See ATTORNEY IN FACT No. 1, 2, 3.
Betts v. Cralle,

RRITISH SUBJECTS.

557

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,

330

Berkeley,

Saunders v. Wood, 406.

555

487

Hooe
501

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,

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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,

CHANCERY.

119

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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,

98

See INTEREST, No. 9.

ib.
See JURISDICTION, No. 3. Depew v. Howard
and Wife,

293

See DECREE, NO. 8, 9. Templeman v. Steptoe,

339

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,

373

ib.

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.

same case, p.

ib.

500

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.

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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

v. Royster and Wife,

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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,

ib.

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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