CONTAINED IN THIS VOLUME.
1. When an account of an executorship or admi-
nistration has been regularly made up, and the
estate thereupon delivered over to the legatees 5.
or distributees, the executor or administrator
need not be a party to a suit against such lega-
tees or distributees for contribution. Hooper
and Wife v. Royster and Wife,
2. An executor having delivered up the estate ge-
nerally, and the management thereof, to one of
the residuary legatees, for his benefit and that
of his co-legatee; nine years and ten months
having afterwards elapsed before he was sum-
moned to render an account; the greater part
of his executorship having moreover been du
ring the revolutionary war; and the settlement
taking place after his death; it was held un-
reasonable rigour to exact vouchers for many
items in his account which appeared probably
just, though not supported by proof. Fitzge-
rald, Ex'r of Jones, v. Jones,
Where the failure to bring an executor to a set-
tlement appears to have proceeded from ne-
glect of the residuary legatees, without any
wilful default on his part, interest ought not to
be charged on the balance due from him to
the estate, except from the date of the decree:
neither, in such case, ought interest to be al-
lowed him on payments to the legatees before
the decree; though made in bonds which car-
ried interest,
Under circumstances a commission of 71-2 per
cent. may be allowed an executor on all his re-
ceipts and disbursements; the real and per-
sonal estate having, in obedience to the direc
tions of the will, been kept together and
On a settlement of accounts in a Court of Equity,
managed by him,
a decree will be rendered, against a plaintiff,
for a balance of account appearing due to a
defendant,
During the pendency of a suit in Chancery, a
settlement of accounts between the parties
having been made, and reported to the court;
but, afterwards, by mutual consent, a new
order of reference being made; the commis-
sioner was not precluded from examining the ac.
counts generally, and correcting any error
therein; especially, as it appeared that the
party who was benefited by such error had
torn his own signature, and that of the other
party, from the settlement. Todd v. Bowyer,
2. By virtue of the 24th section of the District
Court law of 1792, the copies therein allowed,
are good evidence in suits brought since that
act took effect; although the filing of the origi
was before that time. Atwell's Admʼrs
1. Cannot be maintained on an administration bond,
until a devastavit has been established by means
of a second suit, after a judgment against the
executor or administrator as such. Gordon's
Adm'rs v. The Justices of Frederick,
2. Covenant (as well as debt) lies on a bond with
collateral condition, Ward v. Johnston, 45
3. As to the method of assigning breaches in such
action of covenant,
ib.
4. See DEBT, No. 1. Meredith's Adm'x v. Duval, 4.
5. If a prisoner depart from the prison rules by an
illegal discharge from the sheriff, the creditor,
having an assignment of the bond for keeping 5.
the rules, has his election to bring suit upon it,
or to sue the sheriff,
ib.
6. In an action on such bond, the plaintiff is only
required to show a departure from the rules:
the burden of proof then devolves on the de-
fendant to show that the prisoner was dis-
charged by due course of law,
7. A husband surviving his wife (or, in case of his
death afterwards, his executor or administrator)
may maintain an action on a personal contract
made with the wife before the marriage, or for
their joint benefit afterwards; notwithstanding
he did not take administration on her estate.
Chichester's Ex'x v. Vass's Adm'r, 98 7.
8. 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 obli-
gor. Atwell's Adm'rs v. Towles,
9. See VENDOR AND VENDEE, No. 7.
Cuningham's Ex'r,
10. Same point decided as in Leftwich v. Berke- 10.
ley, H. & M. 61. Saunders v. Wood,
11. Assumpsit, for use and occupation of land by
permission of the plaintiff, lies on an implied
as well as express promise. Sutton v. Mande-
ville,
12. If, in a suit upon a prison-bounds bond, a
court of competent jurisdiction adjudge the
bond void; the plaintiff may sue the sheriff,
without appealing from the judgment, though
erroneous. Hone v. Tebbs and Wife,
13. In such case, the sheriff, though not a party to
the suit on the bond, is bound by the judgment
unless he can prove it was obtained by collu-
sion,
15. It seems, that a prison-bounds bond, taken pay-
able to the plaintiff, is good at common law,
and an action may be maintained upon it,
v. Towles,
175
Interest on costs could not properly be allowed
under the act of 1803, Rev. Code, v. 2. p. 30.
c. 29. s. 5. So decided in M'Rea v. Brown,
mentioned in note to Atwell's Adm'rs v.
Towles,
179
As to the construction of the acts of descents
and distributions, in the case of an infant dying
intestate, See INFANT, No. 1, 2, 3. Dil-
liard v. Tomlinson, &c.
183
By the act of compromise, passed the 10th of
December, 1796, the title of Denny Fairfax,
and of those who claim under him, to such of
the lands in the Northern Neck as were waste
and unappropriated at the time of the death of
Lord Fairfax was clearly extinguished. Hun-
ter v. Fairfax's Devisees,
Quære, were the several acts of Assembly, re-
specting the mode of acquiring titles to waste
and unappropriated lands in the Northern
Neck, equivalent to an inquest of office, and
sufficient to authorize grants of the said lands
by the Commonwealth, independently of the
said act of compromise?
ib.
Construction of the 5th, 6th and 7th sections of
the act to reduce into one the several acts
directing the course of descents." Temple-
man v. Steptoe,
16. Quare, whether it be not also good under the 1. If a court give a right judgment for a wrong
1. See TREATY, No. 1. Hunter v. Fairfax's 5. Upon an appeal from a decree in Chancery, an
Devisee,
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.
in note.
If, in a suit upon a prison-bounds bond, a Court
possessing competent jurisdiction adjudge the
bond void, the plaintiff may sue the sheriff'
without appealing from the judgment, though
erroneous. Hooe v. Tebbs and Wife,
See APPEALS, (Court of,) No. 6. Newell
v. Wood,
If a Court give a right judgment for a wrong rea-
son, it ought, nevertheless, to be affirmed, 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 marshalling
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,
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.
Towles,
As to the nature of the proof requisite to affect
an assignee, without notice, by an equity, See
Mayo v. Giles's Adm'r,
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,
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,
238
ib. 2. In this case, therefore, the attorney in fact being
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
1. An assignment made after the act 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 so
1. A patentee of land, without personally entering
upon it, has such seisin as may be transferred
and continued by deed of bargain and sale;
but if his seisin be interrupted by the actual 9.
entry and adverse possession of another, he
cannot, while out of possession, convey by bar-
gain and sale such a title as will enable the
bargainee to recover in ejectment. Clay v.
White,
162 10.
rights of the parties, but directing an account
to be taken, is not final in any respect between
the parties retained in Court and their legal
representatives, but subject to revision and al-
teration in every part, at any time before a fi-
nal decree; without the necessity of a bill of
review. Templeman v. Steptoe,
339
See DowER, No. 1, 2. p. 554. note: and same
note, p. 555.
An action cannot be maintained on an adminis-
tration bond, until, after a judgment against.
the executor or administrator as such, a devas-
tavit has been established by means of a se-
cond suit. Gordon's Adm'rs v. The Justices
of Frederick,
1
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 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,
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 il-
legal discharge from the sheriff, the creditor,
having an assignment of the bond, has his elec-
tion to bring suit upon it, or to sue the sheriff,
In an action on such bond, the plaintiff is on-
ly required to shew a departure from the
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