1. On a decree against an executor or administrator for a balance due on his administration account, how execution is to be issued. See EXECUTORS AND ADMINISTRATORS, No. 4. Barrv. Barr's Adm'r-26.

2. Money bona fide lent to a Sheriff, and applied by him to his own use, prior to his receiving a writ of fieri facias against the lender, is not liable to satisfy such execu tion, either at law, or in equity; notwithstanding the same money was origi nally deposited in his hands as a pledge for certain purposes. Price v. Crump

-89.

3. Although the condition of a forthcoming bond did not recite on whose property the execution was levied, yet it was deemed neither informal nor defective. Lewis v. Thompson, Scott & Haskins-100. 4. The Sheriff's return of "no effects," upon an execution in favour of the assignee of a bond against the obligor, is sufficient to charge the assignor, so that no proof that the obligor was not insolvent can be admitted. Goodall v. Stuart -105.

5. Construction of the act of the 19th of January, 1802, authorising Clerks to issue writs of venditioni exponas. See VENDITIONI EXPONAS.

6. A party may, without any previous notice, move the Court to direct an execution to be issued, (where the Clerk refuses to issue one,) or to quash an execution; and it will be so far considered a cause depending, that either party may take an appeal from the decision of the Court on such motion. The Commonwealth v. Hewitt-181.

EXECUTORS AND ADMINISTRATORS. 1. After a judgment against an executor, and a return of " no effects" on an execution against the goods and chattels of his testator, a suit in equity may be brought for a discovery of the assets; to which suit the securities of the executor, and all other persons, (however remotely concerned in interest,) against whom a deeree can be rendered, ought to be made defendants. Clarke v. Webb and others -8.

2. An executor or administrator ought to be eredited in his administration account for fees paid to counsel, notwithstauding those fees were more than the law allowed. Lindsay v. Howerton-9.

3. See AccoUNT, No. 1. Cumpbell and Wife v. Winston, &c.-10.

4. A decree and execution thereupon against an executor or administrator, for a ba lance due on his administration account, should not be against the goods and chattels of the decedent in his hands to be administered, but against his own goods and chattels. Burr v. Barr's Adm'r 26.

5. In such case an attorney's fee ought to be taxed in the bill of costs. Ibid.

6. A still, not fixed to the freehold in a house which might be injured by its removal, is personal property, and goes to the executor, not to the heir. Crenshaw and others v. Crenshaw's Ex'r and others

22.

7. An executor is not entitled to commis: sions for delivering bonds payable to his testator to the legatees, nor for turning such bonds into mortgages, and delivering the mortgages. Hipkins v. Bernard, Ex'r of Hipkins-21.

8. The executors of the mortgagor ought not to be parties in a bill to foreclose. Graham's Ex'r v. Carter

6.

9. The right of a purchaser, at public auction, from an executor, of slaves specifi cally bequeathed by the testator, cannot be disturbed by the legatees, whether the sale was necessary for the payment of debts, or not, unless it he proved that the purchaser knew there were no debts to render such sale necessary; the remedy of the legatee being, otherwise, against the executor only. Neither can such purchaser himself compel the executor to rescind the contract. Sale v. Roy-69. 10. If an executor sells the slaves of his testator when there are no debts to render such sale necessary, and buys them himself, the sale may be set aside at the instance of any person interested. Anderson & Starke v. Fox, &c.—245. 11. An exccutor having sold certain slaves which were specifically bequeathed by his testatrix; having become the purchaser himself; and, afterwards, reen

vered damages in an action of trespass against the Sheriff for scizing and selling them as the property of the specific legatee in whose possession they were found; a Court of Equity will require an account of his administration, to ascertain whether the sale, at which he was himself the purchaser, was necessary for the payment of debts, or not; and, (even if the sale and purchase be justified by the result of the investigation,) will grant a new trial of the issue in the action of trespass, in case the damages were excessive, and produced by erroneous impressions on the minds of the Jury. Ibid.

12. Quere. How far an er parte settlement of

his administration account by an executor, with commissioners appointed, on his own motion, by the Court in which the. will was proved, is valid? Ibid. 13. In this case a doubt was suggested, whether an executor could legally purchase the property of his testator, sold by himself, though the sale were public, and necessary for the payment of debts; but it appears from the decree that such sale and purchase (the sale being necessary for the payment of debts) would be confirmed, if no fraud were proved. Ibid. 14. An inventory of the estate of a deceased person must be signed by the executor or administrator. See INVENTORY, Nos. 1, 2, 3. Carr's Ex'r v. Anderson-361. 15. An administrator with the will annexed, being in possession of lands therein directed to be sold, may maintain a caveat to prevent any other person from obtaining a patent for the same as waste and unappropriated. Archer, Adm'r of Tanner, v. Saddler-370.

16. On the trial of an issue on the assumpsit of the testator, an assumpsit of the e.recutor cannot be given in evidence to establish the demand. Quarles's Adm'x y. Littlepage & Co.-401.

17, Under what circumstances an unconditional judgment confessed by an executor in an action brought on the bond of his testator, bars his relief in equity. Freelands v. Royall, &c. Ex'rs of Clarke

the intention to introduce such evidence. Chandler's Ex'x v. Hill, &c. Ex're of Neale-124.

EX POST FACTO LAWS.

See RETROSPECTIVE LAWS.

F

FEES.

1. An executor or administrator ought to be credited in his administration account for fees paid to counsel, notwithstanding those fees were more than the law allowed. Lindsay v. Howerton-9. 2. In what case an attorney's fee ought to be taxed against an executor or administra tor. See EXECUTORS AND ADMINIS TRATORS, No. 5

FIXTURES.

See STILLS.

FORFEITURE.

1. Lands were not liable to forfeiture for non-payment of taxes under the act of December 27th, 1790, unless they had been assessed and listed by the Commissioners of the Revenue, returned to the Auditor of public accounts by the Sheriff or Collector, and advertised by the Treasurer, as directed by the 4th section of the same act, incorporated into the 34th section of the act of December 13th, 1792, Kinney v. Beverley-318. 2. See DEMAND, No. 1.

FORGERY.

See ASSIGNMENT, No. 4,

FORTHCOMING BOND.

1. Though there be a total blank for the name of the surety in the obligatory,part of a forthcoming bond, yet, his name be ing mentioned in the recital of the condition, and he having signed and sealed it, it was held sufficient to charge him. Bartley & Ferguson v. Fates-398. 2. A blank being left in a condition of a forthcoming bond for the name of the High Sheriff, to whom the property was to be delivered at the time and place of sale, was held not to vitiate it; the name of the High Sheriff having been mention. ed in a former part of the condition. Ibid.

3. A forthcoming bond deemed neither informal nor defective, although the cou dition did not recite on whose property the execution was levied, enough appearing to shew that it was the property of the defendants. Lewis v. Thompson, Scott & Haskins-100.

FRAUD.

1. What fraudulent and dilatory conduct in a person, on whom a writ has been executed by mistake, will bar him from relief in equity. See EQUITY, No. 2.

2. The sale of a bond for less than its nominal amount is of itself no proof of fraud. See BONDS, No. 1.

3. The decree of an inferior Court of Chancery may be corrected, by an original suit in the Superior Court, for fraud. Banks v. Anderson and others-20.

4. See PURCHASER.

5. A father, anterior to our statute of frauds, having delivered certain slaves to his son, which were proved by verbal evidence (without any deed or writing) to have been lent for an indefinite period; and the son having retained the uninterrupted possession for many years, used the property as his own, and acquired credit on the strength of his possession; in a controversy between the father, or volunteer claimants under him, and creditors of, or fair purchasers from the son, the father shall be deemed to have given him the slaves; and, on general principles of law and equity, independently of any statutory provision, the title of the cre ditors and purchasers will be protected. The circumstance that the father afterwards, by his last will and testament, bequeathed the slaves to the son for life, remainder to his children, makes no differ ence in the case. Fitzhughs v. Anderson and others—289,

FRAUDS, STATUTE OF.

1. A loan of slaves deemed a gift in favour of the creditors and purchasers of the person to whom they were lent, on general principles of law and equity, independently of, and anterior to, the statute of frauds. See FRAUD, No. 5.

2. G. being indebted to S., and S. to W., if G., in consideration of his debt to S., verbally promise to pay the debt of S. to W., but W. does not thereupon discharge S., the promise is a collateral undertaking which is void under the statute of frauds. In such case, S. is not a competent witness to prove the promise of G. Wag ganer v. Gray's Admʼrs—003.

FREEDOM.

1. Order to be made by the Court of Chan. cery where a negro or mulatto claiming freedom obtains an injunction. See NE GRO OR MULATTO, No. 1.

2. What evidence admissible, in tracing a pedigree in suits for freedom. See EVIDENCE, Nos. 8, 9.

G

GAMING.

1. M. having won money of W. at cards, and I. having won the same sum of M., the bond of W. given, at the request of M., to I., for that sum, is void by the act to prevent unlawful gaming. Woodson and Royster v. Barrett & Co.-80.

2. The assignee of a bond for money won at gaming cannot recover, though the assignment was for a valuable consideration, and though he had no notice of the origin of the bond, unless the obligor, before the assignment, induce him to take the bond by promising to pay him the money.

Ibid.

3. An order from the Chancellor, granting
an injunction to a judgment at common
law upon the usual terms, is not sufficient
to stay the proceedings, until the com-
plainant has complied with the terms of
the order, by giving bond and security.
Clarke v. Hoomes's Ex'rs and others—
23.

4. In such case, it is no contempt of the
Court of Chancery, in the plaintiff or the
Sheriff, to proceed to sell under the exe-
cution, notwithstanding the Chancellor's
order was shewn them. Ibid.

5. Costs should not be taxed upon overruling
or sustaining a motion to dissolve an in-
junction. Barnett v. Spencer-7.
6. 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." .in-
derson & Thurmond v. Ellington and
others-16.

7. A bill of injunction, and the proceedings
thereupon, are not properly part of the
record of the judgment at common law;
neither ought such papers to be brought
up to the superior Court by a certiorari,
on a suggestion of diminution in that re-
cord. Hite's Heirs v. Wilson & Dunlap

-268.

1. How far a verdict on, to be received as
evidence that the mother of the plaintiff'
was entitled to her freedom. See Evi
DENCE, NO. 9.

2. A writ of inquiry cannot be executed
in the General Court, or a District
Court, at the term next succeeding the
rule day on which the office judgment
was confirmed; because the defendant
has the whole term to set aside the writ of
inquiry, and plead to issue. Craghill and
others, and Little's Adm'rs v. Page, Go-
vernor, &c.-446.

INSPECTORS.

See TOBACCO.

1. What action may be maintained against inspectors for the non-delivery of tobacco. See ACTION, No. 8.

INTEREST.

1. See DEMAND, No. 1.

Interest allowed to a devisec of slaves in remainder, and certain expenses of maintenance, &c.; the devisee having paid a sum of money to relieve them from execution while in possession of tenant for life, and afterwards, (supposing herself entitled to them, and having taken them into her own possession,) being compelled by a Court of Equity to relinquish them. Upshaw v. Upshaw, &c.—381. 3. Interest on an unliquidated account ought not to be allowed." Waggoner v. Gray's Adm'rs-603.

INTERLINEATIONS.

See WILLS, No. 3.

INTERLOCUTORY DECREES.

The Judges of the several Superior Courts of Chancery cannot grant appeals from interlocutory deerees in vacation, but in Court only. The President, &c. of William and Mary College v. Hodgson et al. Ex're of Lee-557.

2. A decree to foreclose a mortgage, and directing a sale of the mortgaged premises, is an interlocutory decree. Fairfax v. Muse's Ex'rs (in note)-557.

3. A decree foreclosing the equity of redemption in mortgaged property, and appointing commissioners to make sale, &c. is but interlocutory, and an appeal cannot be allowed by a County Court from such decree, even in term time. Allen v. Belches and others-595.

4. 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.

INVENTORY.

1. An appraisement of the estate of a deceased person, not signed by the execu tor or administrator, but by the appraisers only, is no inventory of the estate, and cannot be given in evidence as such, in any suit by or against such executor or administrator. Čarr's Ex'r v. Anderson -361.

2. Quere. Whether, to authorise the giving an inventory and appraisement in evidence, it must have been admitted to reVOL. II.

1. It is the right and usual course in the trial of an issue out of Chancery to examine the witnesses viva voce; and it cannot properly be inferred that the answer and depositions were the only evidence exhibited on such trial; on the contrary, it ought rather to appear, that such written evidence was actually made use of, since the Court of Chancery ought to give di rections respecting the reading of the papers filed in the cause. Paul and others v. Paul-525.

2. The Court before whom an issue out of Chancery was tried, having been satisfied with the verdict of the Jury, and having overruled a motion for a new trial, to which opinion no exception was taken, the verdict ought forever to remain undisturbed. Ibid.

ISSUES, IN PLEADING.

1. The Clerk's stating, on the record, "which pleas the plaintiff's join," &c. is not a joining of issue. Hite's Heirs v. Wilson & Dunlop-268.

2. Where there are two issues in fact, and the verdict of the Jury answers to one only, there ought to be a venire facias de novo. Ibid.

3. The words "usual plea” having been put in by the defendant to a count in a writ of right, it was held that no issue was joined, and after verdict, a repleader was awarded. Taylors, &c. v. Huston-161. 4. On the trial of an issue upon the assump sit of the testator, an assumpsit of his executor cannot be given in evidence to establish the demand. Quarles's Adm'.cv. Littlepage & Co.-401.

J

JOINT OBLIGATION.

1. The surviving obligor in a joint note made since the act of 1786, (Rev. Code, vol. 1. c. 24. s. 3. p. 31.) is alone liable to an ac tion at law; nor can the note be set up in equity against the representatives of the deceased obligor, but on the ground of a moral obligation antecedently exist

M