1808. Coutt's Trustees,&c. V. Craig. clearly established that no vacant land does exist in that OCTOBER, quarter, or at least, no piece large enough to be denominated a "lot of ground," and thus falsify the terms of the agreement. The general expression in the agreement must, therefore, operate in favour of the appellees, unless (in the second view of the case) it be shewn that the land in question, was not IN POSSESSION of Hicks and Campbell; thus restraining, by proof, the latitude of the expressions in the agreement: but, on the contrary, we are told by Hicks, that although he did not claim the land in question, by virtue of his lease, yet that he paid a "yearly rent for the back "ground and houses he made use of;" which account is also corroborated by the testimony of Campbell: they, therefore, were in possession of the land in controversy. Both grounds of restriction, therefore, fail the appellants and the Chancellor's construction of the agreement is undoubtedly correct. I am of opinion that the decree of the Superior Court of Chancery be affirmed. Judge FLEMING. The principal point in controversy is whether the whole lot of forty-two feet on the main street, and extending the same breadth up to Crouch's line, was contracted for? and it seems clearly to me that it was so, by the written contract itself: but had there been a doubt on the subject, I am of opinion, that, from precedents in this Court, particularly in the case of Flemings v. Willis, parol evidence was admissible to explain the intention of the parties. It is a very plain case; and I concur in opinion that the decree of the Chancellor be affirmed. By the whole Court, (absent Judge LYONS,) the decree of the Superior Court of Chancery AFFIRMED. AN INDEX TO THE PRINCIPAL MATTERS CONTAINED IN THIS VOLUME. A ABATEMENT. 1. How a plea in abatement to an attachment ought to conclude. See ATTACHMENT, No 4. 2. The plea that the defendant never absconded is a plea in abatement. Mantz v. Hendley-308. 3. A general demurrer to a plea in abatement ought to be sustained, if the plea be defective in point of form only. Ibid. 4. Where a suit has abated by the death of a party, it seems that it ought to be revived for or against the representatives by name, and not in the general character of representatives. Turpin, Adm'r of James, v. Thomas's Representatives.— Note (1)-139. 5. See BOND, No. 14. 6. How an appeal abated at one term by the death of the appellant, may be revived at another, on the motion of his representative. See APPEAL, No. 7. 7. See ERROR CORAM NOBIS. ACCORD AND SATISFACTION. 1. An accord with, and satisfaction received from, one of several persons guilty of a joint assault and battery, is a bar to the action as to them all. See ASSAULT AND BATTERY, No. 1. Ruble v. Turner and others--38. VOL. II. ACCOUNT. 1. A settlement (by commissioners appointed by the Court of Chancery) of an administration account, without notice to the legatees or distributees, is against the constant course of the Court. Campbell and Wife v. Winston and others-10. 2. An order of the Court of Chancery to make up an account, without saying before whom it is to be done, must be exe cuted before one of the master commissioners of the Court. Anderson v. Gest --26. 3. The Court cannot appoint commissioners to make up an account out of the State, except by consent of parties. Ibid. 4. Quere. How far an ex parte settlement of his administration account by an execu tor, with commissioners appointed, on his own motion, by the Court in which the will is proved, is valid? Anderson and Starke v. Fox, &c.—245. 5. See EXECUTORS and ADMINISTRA TORS, NO. 11. 6. The Court of Appeals will not enter into an investigation of an account taken by direction of a Court of Chancery, when either no exception to the commissioner's report was taken in the Court below, or not taken in such form as to enable the Court to decide on the principle of law or equity on which the item excepted to was admitted or rejected. Perkins v. Saan. ders, &c. Ex'rs of Power-420. 4 K 7. See AWARD, No. 2. 8. See PARTNERS, No. 2. ACCOUNT, BOOKS OF. 1. The books of account of a party ought to be taken all together; therefore credits ought not to be collected from them, to charge such party, without admitting the debits charged therein. Waggoner v, Gray's Admir-603. ACTION. 1. See DEMAND, No. 1. 2. As to action surviving on a joint note. See JOINT OBLIGATION, No. 1. 3. What kind of deed considered insufficient to enable the persons named as trustees to maintain an action of trespass. See DEEDS, No. 5. 4. When, in an action against part of the obligors in a bond, the declaration not alleging that the obligor whose name is omitted sealed it, and there being no plea in abatement, such obligor will be presumed to be dead, though it appear from the declaration that the obligors against whom suit was brought were his securities. See BOND, No. 14. 5. The distinction between trespass vi et armis, and trespass on the case; when one is the proper action, and when the other. See TRESPASS VI ET ARMIS, Nos. 2, 3. 6. The species of action will be designated by the Court according to the general form and structure of the declaration. Taylor v. Rainbow-423. 7. See BOND, No. 16, 17. 8. An action may be maintained on an inspector's bond, in the name of the Governor, for the benefit of a person injured by the non-delivery of tobacco, although the law directs the original bond to be transmitted to the treasurer, and is silent as to the prosecuting of suits thereon; the person injured in such case having his option either to bring such suit, or an action in his own name against the inspectors for the penalty, imposed by law, of double the value of the tobacco. Page, Governor, &c. v. Peyton and others566. ACTS OF ASSEMBLY. 1. The manuscript act of 1691, and not the printed revisal of 1705, fixes the period at which the right of making slaves of Indians was restricted. Pallas and others v. Hill and others-149. 2. The act of the 19th of January, 1802, (Rev. Code, vol. 1. c 295. p. 425) which authorises Clerks of Courts to issue writs of venditioni erponus in certain cases, is prospective only in its operation, and consequently does not extend to cases existing before it was passed. The Com monwealth v. Hewitt-181. 3. How a remedial act of Assembly may operate retrospectively. Ibid. 4. The act of the 20th of January, 1804, which gives damages and interest on the affirmance of appeals from decrees in Chancery, does not apply to appeals depending at the commencement of the act, viz. the 1st of May, 1804; and the same principle applies to injunctions. Beatty v. Smith & Thompson-395. AGREEMENT. 1. See ASSIGNMENT, No. 4. 2. See NUDUM PACTUM, Nos. 1, 2. 3. A verbal agreement may be made, that the assignor of a bond shall not be liable; and thereupon he will not be responsible to a subsequent assignee, even though he had no notice of such agreement, and though the bond was assigned in general terms. Stubbs v. Burwell—536. AMENDMENT. 1. If an entry be made in the minute-book of the Clerk of a District Court, and part of it be omitted in the order-book signed by the Judge, the order-book cannot be amended from the minutes after the term at which the proceedings were had. Cogbill v. Cogbill and others—467. ANSWER IN CHANCERY. 1. Where the answer is silent as to a material allegation of the bill, the plaintiff may except to it as insufficient, or may move to have that part of the bill taken for confessed; if the plaintiff, instead of pursuing this course, reply to the answer, and set the cause for hearing, he is not to avail himself of the silence of the de fendant on any material allegation, as au implied admission of its truth. Danger field, &c. v. Claiborne, &c.-17. 2. The bill having been taken as confessed, and a decree nisi returned served, an an swer, controverting a part of the plaintiff's claim, and not denying the residue, was received as an answer to part only, and a decree absolute was entered for the residue. Thompson & Veitch v. Strade -19. S. Where the answer of the defendant in Chancery contains a direct and positive denial of the allegations in the complainant's bill, it cannot be outweighed by the deposition of one witness, unsupported by corroborating circumstances. "Beatty v. Smith & Thompson-595. 4. The answer of one joint partner, in the name of both, deemed sufficient, the complainant having filed a general replication, and taken no steps to compel t answer from the other partner. Freelands v. Royall, &c.—575. APPEAL. The Judges of the Superior Courts of Chancery cannot grant appeals from interlocutory decrees in vacation, but in Court only. Dawney v. Wright and others-12. The President, &c. of William and Mary College v. Hodgson et al. Ex'rs of Lee-557. 2. See JUDGMENT, NO. 1. ERROR, NO. 1. 3. See INJUNCTION, No. 1. 4. An appeal ought not to be allowed from a dismission of a bill of injunction under the act of Assembly, the injunction having been dissolved, and no cause shewn against such dismission at the next term. Anderson & Thurmond v. Ellington and others-16. 5. In such case, if the complainant wish to appeal, he should carry on his suit, in the usual course of the Court, to a final hear ing; and it seems that his intention to appeal, declared by his counsel, would be sufficient to prevent the dismission, and authorise his carrying on the suit. If he fail to do this at the time of the dismis sion, he may move, at the next term, upon notice to the adverse party, to set it aside, when it may be done, if it appear reasonable. Ibid. 6. A party may appeal from an order of Court directing an execution to be issued, or one to be quashed. See EXECUTION, No. 6. 7. An appeal having abated at one term by the death of the appellant; at the next term a scire facias was awarded on the motion of his administrator, who had qualified since the abatement, for the appellee to shew cause why the appeal should not be revived. Gibbs v. Perkinson-211. 8. Damages and interest not to be allowed on affirmance of appeals from decrees in Chancery, which were depending at the commencement of the act of the 20th of January, 1804, viz. on the 1st of May, 1804. Beatty v. Smith & Thompson 395. 9. An appeal taken from a verdict before any judgment entered thereon, ought to be dismissed. Tatum and Wife v. Snidow--542, 10. Cannot be allowed by a County Court, from an interlocutory decree, even in term time. Allen v. Belches and others— 595. 11. An order of the Superior Court of Chancery reinstating an injunction, and directing a new trial of an issue, is not an interlocutory decree, from which an appeal can be allowed. Price v, Strange- 615. 1. A release to one of several persons guilty of a joint assault and battery, or an accord with, and satisfaction received from one of them, is a bar to the action as to them all, notwithstanding such release or acknowledgment of satisfaction be expressed as applying only to the part which that one took in the trespass; and notwithstanding a proviso that it shall not ope rate in favour of the other trespassers. Ruble v. Turner and others-38. 2. A judgment for damages, in a separate action against one of several persons who were guilty of a joint assault and battery, is a bar to an action against the rest. Wilkes v. Jackson-355. 3. A finding in a special verdict that T. and B. were concerned in the same affray at the same time, and that it was the same affray for which a judgment was rendered against B. is a sufficient finding that T. and B. were jointly guilty of the same assault and battery. Ibid. ASSETS. 1. When a suit in equity for the discovery of assets may be brought, and who ought to be made parties. Clarke v. Webb and others--8. ASSIGNEE. See ASSIGNMENT. |