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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, it seems,
1.
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 1. S,
ib.
15. Quere, 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,
bond; unless it appear that such bond was is.
ken by a sheriff, or other officer legally autho-
rized to make distress, and sell the distrained
effects. Smiths v. Ambler,
596
See FORTHCOMING BOND, No. 1, 2. Glas
cock's Adm'x v. Dawson,
605
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 is 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,
238 1. See TREATY, No. 1. Hunter v. Fairfax's
Devisee,
218
19. See VENDOR AND VENDEE, No. 7. Hull
v. Cunningham's Ex'r,
330
20. Same point decided as in Leftwich v. Berkeley,
1 H. & M. 61. Saunders v. Wood, 406.
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.. Hooe
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
shail 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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Quere, whether an entry, for a certain number
of acres,
"on the waters of Glade creek,
joining the lines of I. H's land, and the loca
tor's own land on W's run," be sufficiently
certain? Depew v. Howard and Wife,
293
The rule that a purchaser is bound by notice at
any time before he receives a conveyance, does
not apply to a lien claimed under a written
contract so vague and indefinite as not to
designate with any certainty the particular
land in question. Lewis v. Madisons, 303
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,
119
Chancellor, but will itself direct such parties to
be made. Hooper and Wife v. Royster and
Wife,
In a suit for contribution against legatees or dis-
tributees, the executor or administrator, or, if
he be dead, the person who succeeded him in
the executorship or administration, ought to be
made a party; unless it appear that the account
of such executorship or administration has
been regularly made up, and the estate there-
upon delivered over to the legatees or distribu-
tees,
ib.
In what case interest ought to be charged
against an executor from the date of the de-
cree only. Fitzgerald, Ex'r of Jones, v. Jones,
11. On a settlement of accounts in a Court of Equi-
ty, a decree will be rendered against a plaintif
for a balance of account appearing due to a de-
fendant,
ib.
1. As to the liability in equity of a purchaser hav-
ing notice of an encumbrance; see Blair v.
Owles,
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,
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,
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 1
See PURCHASE, No. 1. Day v. Murdoch, 460 K
See APPEAL, No. 5, 6.
See INJUNCTION, No. 2. Humphrey's Adm'r y
v. McClenachan's Adm'r and Heirs, 493
See VENDOR AND VENDEE, No. 12, 13.
See SET-OFF, No. 1. Dangerfield v. Rootes,
See DOWER, NO. 1, 2. note to p. 554. and 555.
See EQUITY, No. 39. Whitehorn und Wife
v. Hines and others,
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
deeree 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.
8. 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 be
a party to a suit in equity, by the claimant of
an encumbrance, against a purchaser having
notice, Blair v. Qwles,
COMMISSIONER IN CHANCERY.
COMMISSIONERS OF THE REVENUE.
1. An attorney in fact having, by mistake, had a
survey made of land not belonging to his em-
ployer; but, after the survey, the employer
having executed a bond to make him a con-
veyance of part of the land so surveyed; and
having snatched and torn the bond so given;
for which trespass a suit was threatened; and
thereupon two bonds for money being given by
the employer, in full satisfaction for tearing the
above bond, and for the attorney's services;
the last-mentioned bonds were considered as a
bar to any claim of the attorney under the
original contract, and adjudged valid and obliga-
tory, notwithstanding the mistake in the sur-
vey was not discovered until after those bonds
were executed. Betts v. Cralle,
238
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 breaches 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 as-
signed as the breach. Ward v. Johnston, 45
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," &e.
1. Quære, whether a security is exonerated at com- 2.
mon law, by the plaintiff's accepting a confes-
sion of judgment from the principal, and grant-
ing him a stay of execution, by an agreement
to which the security was not a party? Ward
v. Johnston,
1. The practice of LAW is not an office, or place,
under the Commonwealth. Leigh's case, 468
1. 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 de-
ficiency; the only remedy for such deficiency
is a proportional compensation in money, ac- 2.
cording to the price agreed on for the whole
tract, with lawful interest from the time the
same was payable. Chinn v. Heale,
63
2. Where a plaintiff sues in Chancery for a convey-
ance of a specific tract of land, and also for a 3.
conveyance of other lands to make up a deficien-
ey of quantity; (relating to which deficiency
he prays a discovery;) but, according to the
contract, appears entitled to compensation in
money, and not in lands; the Court, after de-
creeing the first mentioned conveyance, (the
See BOND, No. 13. Atwell's Adm'rs v. Towles,
1. In construing wills, the cardinal rule is to col-
lect the intention of the testator from the 9.
whole will taken together, without regard to
any thing technical, or any particular form of
words; and if such intention be lawful, (as not
creating perpetuities, or the like,) full effect
ought to be given to it by the Courts. Wyatt
v. Sadler's Heirs, and Johnson and others v. 10.
Johnson's Widow and Devisees, 537. and 549
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,
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-
ey 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,
If A. promise B. that if he and A.'s daughter
marry, "he will endeavour to do her equal
justice with the rest of his daughters as fast as
it is in his power with convenience," and the
marriage be afterwards had with his consent;
the promise is sufficiently certain and obliga-
tory. Chichester's Ex'x v. Vass's Adm'r, 98
In such case, A. has not his life-time to per-
form it in; but, in a reasonable time after the
marriage, (taking into consideration his pro-
perty and other circumstances,) is bound to
make an advancement to B. and wife, equal
to the largest made to his other daughters, ib.
A promise in the above-mentioned terms enures
to the joint benefit of the husband and wife;
and is not to be satisfied by a conveyance of
lands to the wife. The husband (to whom
the promise was made) has his election to con-
sider it a personal contract; and, if he' sur-
vive the wife, may sue in his own right to re-
cover damages for a breach,
A husband surviving a wife (or, in case of his
death afterwards, his executor or administra-
tor) may maintain an action on a personal
contract made with the wife before the mar-
riage, or for their joint benefit afterwards; not-
withstanding he did not take administration
on her estate,
ib.
See ATTORNEY IN FACT, No. 1, 2. Betts
v. Cralle,
238
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 action of
covenant at law, or be enforced specifically in
a Court of Equity. Lewis v. Maisons, 503
The rule, that a purchaser is bound by notice
at any time before he receives a conveyance,
does not apply to a lien claimed under a writ-
ten contract so vague and indefinite as not to
designate with any certainty the particular
land in question,
ib.
See PURCHASER, No. 9, 10, 11, 12. Hull v.
Cunningham's Ex'r,
330. 336. 338
1. Notice of a lien or encumbrance on property 2.
binds the purchaser, if received by him at
any time before the execution of the convey-
ance. Blair v. Owles,
38
2. In a suit in equity by the claimant of an encum-
brance against a vendee having notice, a per-
son who joined the vendor in the deed, for the 3.
purpose of relinquishing a collateral claim,
need not be a party,
ib.
3. A purchasing agent is a competent witness to
prove that his principal had notice of an en- 4.
cumbrance, notwithstanding such agent join-
ed in a deed conveying the property to the
principal free from the claim of any person
whatsoever,
ib.
4. A person out of possession cannot convey by
bargain and sale such a title as will enable the 1.
bargainee to recover in ejectment. Clay v.
White,
5. The rule, that a purchaser is bound by notice at
any time before he receives a conveyance, does
not apply to a lien claimed under a written
contract so vague and indefinite as not to de-
signate with any certainty the particular land
in question. Lewis v. Madisons,
6. See DEED, No. 6. Yancey v. Hopkins,
7. See INFANT, No. 9.
8. See HEIRS, No. 2. Humphrey's Adm'r v.
McClenachan's Adm'r and Heirs,
9. See VENDOR AND VENDEE, No. 12,
case,
493
13. same
500
Harvey 3.
10. See HUSBAND AND WIFE, No. 7.
and Wife v. Pecks,
11. What are badges of fraud in obtaining a deed, 4.
ib.
13. Under what circumstances a deed obtained
from a man of weak understanding may be set
aside in equity. Whitehorn and Wife v. Hines
and others,
14. See PURCHASER, No. 20, 21,
In covenant, on an agreement to convey the
party's interest in a certain suit, and (in case
the defendant in that suit was not legally bound
by his undertaking) then to convey the
right of such party to certain land, a declara-
tion charging a refusal to convey the interest
in the suit, or the right to the land, (without
setting forth the failure to recover in the suit,
and a subsequent refusal to convey the land,)
is substantially defective, and not to be cured,
by a general verdict, assessing entire damages.
487
Austin's Adm'x v. Whitlock's Ex'rs,
See VENDOR AND VENDEE, No. 10, 11, 12,
13. Humphrey's Adm'r v. M'Clenachan's
Adm'rs und Heirs,
The Jury, and not the Court, are exclusively
judges of credibility. Harrison v. Brock,
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