1. Upon the Court's overruling a defendant's motion for a new trial;-if he file a bill of Exceptions to such opinion, stating all the facts proved to the Jury; from which it appears that, upon the merits, the plaintiff ought not to recover; the judgment ought to be reversed, and a new trial granted. Keys v. M'Fatridge, p. 18-20.

2. If a motion for a new trial on the ground that the verdict is contrary to evidence, be overruled, a bill of exceptions to the Court's opinion ought not to state all the evidence given in to the Jury, but only the facts appearing to the Court to have been proved. Bennet v. Hardaway administrator of Jones. p. 125-132.

5. Upon a Bill of Injunction filed, a new trial at law was granted; a verdict was found for the complainant, but certified by the Judge to be against the weight of evidence: another trial being directed, a second verdict was found as before; whereupon, the Judge certified, with the verdict, all the evidence given to the Jury; from which it clearly appeared that the merits of the case were against the complainant. The Court of Appeals, thereupon, did not award another trial, but dissolved the Injunc

tion, and dismissed the Bill with costs. Ruffners v. Barrett, p. 207-209.

6 Upon a motion for a new trial, on the ground that the damages found by the Jury are excessive; if the plaintiff release such part thereof as, in the Court's opinion, ought to be released, and thereupon judgment be entered for the residue; such judgment, not appearing unreasonable, should be sustained by the appellate Court. Preston v Bowen, 271–277.

7. A motion for a new trial, on the ground that the verdict is contrary to evidence, ought to rest on the evidence actually given in at the trial, exclusive of all other: especially, affidavits taken ex parte, ought not to be heard on such motion. Street v. St. Clair, p. 457-458,

NON EST FACTUM.

1. A plea of non est factum, in behalf of a person returned as appearance bail, who denies that he ever executed the bail bond, is regular and proper. Spots wood v. Douglas, p 312-313.

2. A plea of non est factum ought, in general, to be received by the Court, notwithstanding the defendant has previously pleaded payment; especially, if it be offered under circumstances shewing it is not intended for the purpose of delay. Jackson v. Webster, p. 462464.

3. The affidavit to the plea of non est factum, is not rendered defective by inserting the words, "to the best of the defendant's knowledge and belief." Ibid. 4. No man can be required to swear positively, (if at all,) to legal inferences.

Ibid.

NOTES NEGOTIABLE.

1. The bona fide owner of a bank note, having transmitted one half thereof by the mail, which has been stolen therefrom, or is lost, can not demand pay-. ment from the Bank of any part of it's amount, in consequence of holding the retained half merely; but he is entitled to demand the whole amount of the said note, on satisfying the Bank of the verity of the above facts, or establishing them by the judgment of a Court of Equity, and giving, in either case, a satisfactory indemnity, to secure the Bank against future loss from the ap pearance, and setting up of the other half of the note. The Bank of Virginia v. Ward, p. 166–169.

was obstructed and shut up,) that such dam was a public nuisance and abateable by the defendants. Dimmett v. Eskridge, p. 308-311.

2. A partial obstruction of a public highway, is an abateable nuisance. Ibid.

0.

OATHS.

1. It seems that, where a high Sheriff has given the bonds and taken the oaths required by law, when he originally qualified, and, before his first year of service expires, is continued in office for the second year by a Commission from the Executive, and thereupon gives new bonds, it is not incumbent upon him to shew, in an action against his deputy, that he a second time took the oaths of office. Lane v. Harrison, 573– 580.

2. Where the high Sheriff is continued in office the second year, and takes a new bond of his deputy, (who is also continued,) for faithful performance of the duties of his office, it seems that, in an action upon such bond, the plaintiff is not bound to shew that the deputy took the oaths of office a second time, or that his appointment was approved by the County Court. Ibid.

OFFICE JUDGMENTS.

1. A judgment at rules in a clerk's office, can not lawfully be made final on a declaration in debt, for money lent, and not alledged to be founded on any specialty, bill, or note in writing; until a writ of enquiry has been awarded and executed. Hunt & others v. M'Rae, p. 454– 455.

ONUS PROBANDI.

1. The Commonwealth, by patent, granted a tract of land, containing 70,202 acres, (within specified metes and bounds,) by a survey containing a surplus of 42,000 acres, held by titles having legal preference to the warrants and rights upon which the grant was founded. A reservation was therefore made, in favour of those titles, in general terms. It was decided that, under the terms of this patent, the grantee was entitled to recover, in Ejectment,

all the land within the metes and bounds thereof, except such as the defendants might shew themselves entitled to, under the said reservation. Hopkins & Watson v. Ward, p. 38-41.

2. In the case of slaves brought into this State, from any of the United States, before the Act of 1792, the fact of the master's having taken the oath required by law within ten days after removal, should be presumed from twenty years possession of them, as slaves, without their claiming freedom; so that, in such case, the onus probandi in the suit for freedom should be thrown on the plaintiffs: but this presumption may be repelled by circumstances. Abraham & others v. Matthews, p. 159.

3. In debt, on a bond conditioned that the obligor shall make a title to a tract of land, when thereunto lawfully required; if the defendant plead covenant performed, and issue be joined thereupon, the plaintiff is not bound to prove on his part any demand of a deed. Pate v. Spotts, p. 394-397.

66

OVERSEERS OF THE POOR.

1. Quare, whether any action can be maintained on a bond executed to "C. H. &c. overseers of the poor "of M. County," with a condition, that, "if the first "named obligors shall well and truly "collect, from the Tythables of said "County, the poor rate for the year

66

and pay the same to the orders "of the said overseers, then the said "obligation is to be void," &c.? Horton & others v. Haymond & others, p. 399-401.

2. An action against a collector of poor rates, upon his bond to the overseers of the poor, can not be maintained, without an averment in the declaration that the plaintiffs are overseers at the time of the institution of the suit. Ibid.

3. A person accused of being the father of a bastard Child, can not lawfully be bound to support such child, without a written charge before the magis trate, by it's mother; nor unless it appear that the warrant was issued by the magistrate upon the application of the Overseers of the poor, or one of them, or that they, or one of them, were par ties to the cause in the Court making the order against such person. Mann v. the Commonwealth, p. 452-453.

P.

PAPER MONEY.

1. Under circumstances, a legacy bequeathed in September 1779, to the testator's daughters, was not reduced by the scale of depreciation, but directed to be paid in specie; the words "current money," being omitted in the Will; and it appearing presumable, from acts of the testator nearly co-temporaneous, and from the great value of the lands devised to his sons, by whom he directed the legacy to be paid, that he meant specie. Allen v. Bird & others, p. 108-110.

wife, p. 87-98.

2. The officer who returned the writ and bail bond, ought, as well as the plaintiff at law, to be made a party defendant to a bill of Injunction filed by the person returned as bail, who denies that he ever executed the bond; for the officer is interested in the question in controversy, and should be a party, that final and complete justice may be done. Spotswood v. Higgenbotham, p. 313-315.

3. In such case, in the same suit in Chancery, a decree may be rendered in favour of the plaintiff at law, (though defendant in equity,) against such officer, if justice should require it. Ibid.

4. A demurrer to a bill in Chancery against a guardian for advances of money &c. by the plaintiff for the use of the ward, ought not to be sustained on the ground that the ward ought to have been a party: but if, upon the answer of the guardian, it should appear proper, the Court should then direct the ward to be made a party. Sutton v. Gatewood & wife, p. 398-399.

5. In a suit in Chancery, to foreclose a mortgage, against purchasers claiming under a devisee of the mortgagor, not only the persons from whom they immediately derive their title, but also the said devisee or his heirs, and all other devisees of the equity of redemption, ought to be made parties; notwithstanding such equity was devised to some of them upon conditions; for whether such conditions were complied

with, can not be legally investigated, until they are made parties Mayo v. Tomkies, p. 220-528.

6. It is not sufficient to make a per son a party as Executor, and to call upon him to answer as such, if he be interested in the controversy as a devisee, or should be called upon to answer as to his individual interest or transactions. Ib.

7. Where lands devised to be sold, have been sold by one of several executors, all the executors ought to be parties to a suit to foreclose a mortgage previously existing upon those lands. So, also, all the purchasers; in order to be subjected to a rateable contribution to satisfy the mortgage. Ibid.

PARTITION.

1. Upon a Bill for partition of land; a person who claims part thereof by adverse title, being made one of the defendants, for the purpose of obtaining a surrender of title deeds, and a conveyance of such part, from him; if the Court decree against him "that the said "deeds be set aside, and declared void, " and that the title be quieted;" and, by consent of parties, the cause be continued as to the other defendants: quære, whether such decree be final, or interlocutory, as to him? Alexander's heirs v. Coleman and wife, p. 328-352.

2. See CAVEATS; Christian's devisee v. Christians, p. 534-541.

3. In decreeing a partition in favour of a plaintiff claiming by equitable title, the Court ought not to direct that the holders of the legal title stand seised of the plaintiff's part to his use; but that they convey the same, by deed, to him and his heirs. Ibid.

PARTNERSHIP.

1. Although a person having a claim against a Mercantile Company, can not set off such claim, against a debt from himself to one of the partners; yet it is competent for him to charge that partner, in equity, (in extinguishment of the said debt,) for so much of the sur plus of the partnership property as may be due to such partner on a settlement of the partnership accounts; for the purpose of which settlement, and also for that of ascertaining and adjusting his own claims against the company, all the partners should be made defend. ants to his Bill. Dunbar v. Buck, p. 34-36.

2. It seems, that, upon an attachment for a debt claimed as due from one copartner, the sheriff must seize all the partnership effects, and sell a moiety thereof undivided; in which case, the vendee will be tenant in common with the other partner: for if he seized but a moiety, and sold that, the other partner would have a right to a moiety of such moiety. Shaver v. White & Dougherty, p. 110-114.

3. A declaration in behalf of a mercantile company, by the name of the firm, (without mentioning the names of the partners,) is good after a verdict for the plaintiffs upon the general issue. Pate v. Bacon & Co p. 219-220.

4. If one of two partners in trade give a bond or note, without the consent of the other, and for a debt not contructed with or due from the partnership; such bond or note is not binding on such other partner, at law; nor will a Court of Equity hold him bound on the ground that the debt in question was contracted by the partner who gave the bond or note, for goods the greater part of which were applied to the use of the firm; the vendor having retained no lien on the goods so sold; and it not ap pearing that the other partner agreed to pay his proportion thereof, or was indebted to the partner who contracted the debt. Poindexter v. Waddy, p. 418-422.

5. A new partner, received into a mercantile firm upon his buying out the share of an old partner, is not bound to pay any part of the debts previously due from the firm, without a contract on his part to that effect. Ibid.

6. It seems, that a Bill in Equity properly lies to subject the estate of a secret partner in trade to the payment of a debt contracted by the ostensible members of the firm. Cocke v. Upshaw, & Pritchett ex'or of Burnett, p. 464-465.

7. In such case, if the fact of the secret partnership be doubtful on the testimony, the Court should direct an issue to ascertain it. Ibid

8. The declaration was upon a gen eral indeb:tatus assumpsit for the hire of five slaves, for which the defendants, being co-partners, promised, on the 1st of January 1811, to pay the plaintiff the sum of $350, when they should be thereunto afterwards required: the plaintiff could not recover upon a writ ing signed by one of the defendants, certifying that he had hired of the plainVOL. VI.

81

tiff five slaves at the price of $350, and that this should entitle the plaintiff to the other defendant's bond for the same, payable on the 1st of January 1811. Woody v. Flournoy, p. 506–510.

PATENTS FOR LANDS.

1. The Commonwealth, by patent, granted a tract of land, containing 70,202 acres, (within specified metes and bounds,) by a survey containing a surplus of 42,000 acres, held by titles having legal preference to the warrants and rights upon which the grant was founded. A reservation was therefore made, in favour of those titles, in general terms. It was decided that, under the terms of this patent, the grantee was entitled to recover, in Ejectment, all the land within the metes and bounds thereof, except such as the defendants might shew themselves entitled to, under the said reservation. Hopkins & Watson v. Ward, p. 38-41.

2. A patent which is free from objection upon it's face, cannot be impeached, in a trial at law, upon any evidence but that of a prior patent remaining in full force. Norvell v. Camm & wife, p. 233-245.

3. If a petitioner for land forfeited by non-payment of quit-rents, under the 30th section of the Act of 1748, c. 1., failed to pay the consideration money, within six months after a judgment in his favour, and to get a Patent as the law required; whereupon, another person obtained a patent for the same land by virtue of a treasury lan l warrant; such patent is good at law against a title derived from such petitioner, unless the length of possession of the tenant and those under whom he claims, accruing before the issuing of such patent, be such as is sufficient to bar a writ of right. Ibid.

4. Quare, whether the tenant in such case could be relieved in equity? Ibid.

5. Quære, also, whether the issuing of such patent could be prevented by a caveat, on the ground that the land, having been previously granted and settled, though forfeited by the original patentee for non payment of quit-rents, was not waste and unappropriated? Ibid.

6. The heirs of a patentee of Land may recover in Ejectment, against a person who had the use and occupation of the land, as his own, in the life time of the patentee, and so continued until after his death; claiming to hold the