4. An executor being sued on a bond of his testator of more than twenty years standing, was advied by his counsel to rely on the presumption of puy. meist arisn.g from the length of time, and. sup. pering suchi presumption a sufficient defence, neglected to fortify it by other testimony, which was in his power. In consequence oi evidence given by one of the jurors in the jury-rouni, a Verdiet was found against him. He moved for a new trial on that gond, but was denied it. He afterwards obtained a new trial, by applying to a Court of Equity, on the ground of mistake and accident. Price's E.xecutor v. Fuqua's ridmini. strator, p. 68. 5. See Legarees ; No 10.; Rooles v. Webb, p. 77. 6. On a bill in equity for specific performance of an agreement, although the court, if (from the want of evidence, wbich the defendant, being in contu. macy, ought to disclose) it be not able to direct such performance, may direct a sum of money against him conditionally, for the purpose of conipelling the production of such evilence; and, in ihe event of his not producing it, the defendant will have his election, either to pay that sum, or to perform the agrement spacifically; yet. if the defendant, in obdience to the court's order, do produce evidence. which, though not entirely sa. isfactory to the plaintif, is accepted by him, the court ought not thereupon, to limit the plaintiff's recovery to the sum of money so deereed, but should proceed to decree a specific performance. Rass v. Hoch's Administrators, p. 97. 7. If a defendant (with full knowledge of a decree in chancery, directing him to deliver up certain slaves to comniissioners appointed to divide them) purchase up executions against the plaintiff, and cause the same to be levied upon tis undivided interest in those slaves, which interest thereupon is sold by the sheriff at an under rate; the sale ought to be set aside, and the slaves, with their inertase and profits, still held liable to the pro• visions of the decree. Ibid. 8. In a suit upon an administration bond, for the be. nefit of distributees, (tuo of whom were the ad. ministrators,) judgment was rendered against the executors of the security only, for the amount of the inventory. On a bill of equity to injoin this judg:nent; it appearing, by an er parte settle ment in a County Court, that a considerable part of the estate had been bona fide disbursed by that administrator; and partly to some of the distribulees; reliet' was given, though no defence liad been made at law, Preston and others, E.recuo tors of Wall, v. Gressom's Distributees, p. 110. 9. Under what circumstances, a sale of land by com missioners, in obedience to a decree in caucery, ought not to be set aside. Fairfax v. Muse's Exo: ecutors, p. 124. 10. In a case involving trust and confidence, and in which it appears reasonable to allow the com: plainant the benefit of the defendant's oath. re. lief may be given in equiry, although the party neglected to make the proper defence at law. Spencer and White v. Wilson, p. 130. il. Although a party may be let into a Court of Equi. ty, on grounds which he could not have used on the trial of a caveat, and which, in fact, make ano. ther case ; (in reference to that which he might have availed himself of on such trial ;) or upon a case suggesting and proving that he was prevented by fraud or accident from prosecuting bis caveat ; he is not to be sustained in the Court of Equity on such grounds as were or might have been brought forward on the trial of the caveat. Noland v. Cromwell. p. 155. 12. If a bill in chancery be dismissed, on the ground that the plaintiff's claim is exclusively cognizable at law; he cannot plead the pendency of such suit in chancery, to prevent the act of limitations from being a bar to his subsequent recovery at law. Gray's Administratrix v. Berryman, p. 181. 13. J. M. having the equitable title to a tract of land, sold it to J. P., and received of him part of the price; but finding some difiiculty in guing the Dulance, he made another sale of ibe sane land to J. 11. pon condition bat he wonld advarre that balance, and give J. P. six months to pay it to him ; in which event. J. P. Was still to have the land; otherwise it was to belong 10 J II The contract so nade was approveel hy v P, who nc. cordingly promised to pay the money to J. II., and soon 'fter the contact, moved of the land, of which J. H. then took possession. '1 ons was adjuged to be a morigage, in the port of J. P.; and that a court of equity should allow him to redeem, not withstanding he filed 10 pay the money will in the six months ; hr not having treated with J. : H. for a sale of his title, nor entered into any dis. enssion with bini concerning the adequacy of the sum alleged to have been intended as the price or consideration therefor; and the saint land being so far more valuable than the said consideration, as to leave no doube that the contract in question was intended to create a penalty or pledge, to ensure the punctual payment of the money. Pennington v. lianby wd othoi's. p. 140. 14. If a person, having the equitable riile to a tract of land, mortgage it, and afterwards sue for a conse veyance of the legal itle; (the vortgagre being a party to the suit ;) the court ought not to decree a conveyance, without holding the land donately bound to satisfy the mortgage, and to be sold to raise the money due with inuresi. Ibid. p. 141. 15. A decree cannot be made against a widow, (ie. straining her from conveying her right of tower,) in a suit to which she is not made a party 0; win doro, but only as administrutrix of the decedent and guardian of her children. Ibid. p. 144. 16. The heirs of a venilor, retaining the legal citle to the land, ought not to be decreed to make a con: veyance with general, but with special warranty: neither ought they to be compelled to pay costs. Vid. p. 141. 17. A Court ot' Equiry ought not to give its aid to a plaintiff claiming under a deed of gift from a person who made a previous transfer of the same property to another for the purpose of defrauding crditors'; the object of the bill being to enforce a secret trust beiween soch transferor and trans feree. Rane's Auministrator v. Vua'. p. 187. 18. See Contribution ; and Bower's Executor v. Glen. uening and others, p. 219. 19. Il a widow executrix purchase slaves for the estate of her husband, by his direction, with mopey left by him for that purpose; but allerwards hold theni as her own, and apply their prefits to her own use ; she is to be considered a trustee for The benefit of his estate, and responsible in equily, but not at law, to his legatees. Redwood v. Riduick and wif, p. 222. 20. And if she narry again, her second husband, hulling and using the slaves and Vieir profits, is in like manner responsible. Ibid. 21. A frustee enot take advantage of the act of li. mitations against the clains of the cestuy que trust, or of persons claiming under him Ibud, 22. See Usury; and Fox v. Tanaferro, p. 243. 23. See Se.ie; and Quarles v. Lacy, p. 252. 24. A fact, not charged in the bill in chancery, nor put in issue by the pleadings, cannot be relied upon by the plaintiff. Parktr v. Carter and others, pl. 4, p. 273. 25. A defect in the charging part of a bill cannot be supplied by a subsequent interrogatory. Ibid. pl 5. 26. A plaintiff comes, with a bad grace, into a Court of Equity, to enforce a promise which was induced by unfounded and delusive representations on his own part. Ibid. pl. 7. 27. Under what circumstances a suit in equity may be brought against the securities of an executor, administrator, or guardian, without any previous judgment or deeree against their principal, Spuleswood v. Dandridge and others, p. 289. p. 485. P. 323. 28. See Partnership ; and Forde v, Herron, p. 316. notwithstanding the plaintiff may have been to 29. See Appeal ; and Spencer v. Smith. p. 323. gligent, and the cause was prematurely set for 30. See Injunction ; and Ross V. Wouciville, p. 324. hearing on his motion. Key ve ford and altert 31. See Partition ; and M'Clintic and others v. Manns, 48. 'l'h: 3d section of the act of January 20th, 1904, 32. Lapse of time is permitted in equity, to defeat concerning the proceedings in Courts of Chan an acknowlalged right, on the ground only of its cery, does not apply to a bill which is not inerely 499. fe iures arising mercly frun a lapse of the time 51. If a judgment creditor (without suing out extrus ing adequate compansation. Ibil.pl. 7, p. 33.3. 34. It is error to render a joini decree against two the whole being conveyed by a deed of trust.es. routed during the term in which the judguest co executors, when only one is before the court. was obtained and providing that the property Myrick, Administrator of Lundie v. suams, p. conveyed may be sold by the trustres to answer 360, the purposes of the trust; the court ought to die 35. Proof that an order of publication has been in. miss the bill as to the personal properly; without serted in a newspaper two months is not suffi. cient. It should also be proved, that a copy was prejudice to the plaintiff's right, if any, to the rear sidiary money resulting to the debtor, fron: L posted at the front door of the house in which the sale of that property, after satisfying the deed; but court is held. lbid. should direct the trustees to sell the land, at 36. The account of an executor having been settled out of the proceeds thereof, to satisfy the by commissioners appointed by the court before menit in the first place, and afterwards to perlom ERROR. 1. See Capintur ; and Vanghan's 1dministreret so and wife v. Venable': Livecutor, p. 369. Winckler's Eirculor, p. 136. 37. On a bil to surcharge and falsify an executor's 2. See Verdict; and Boutright r. Merge, p. 145. account, the legatees, as well as the executor, be 3. See Judgment; and Grahum and Solt 5. Grabens ing defendants; if the plaintiff direct the cause and Lane, p. 205. to be set for hearing, afier the executor has an. swered, but before the process gainst the lega. ESTATE TAIL tees has been served ; ind the cause be heard on the merits, he e nnot objert to the want of pro 1. A testator in the year 1778, “ gave and beqnestke per parties, or that the decision was premature. ed, to each of his four sons, a tract of land; with Ibid. several articles of personal property to iwo of 38. See Insolvency; and Chapman v. Armisteads, them; . pecunisry legacy to each of bis daugh. pl. 3. p. 382. ters; all the rest of his personal estate to his es 39. See Decree; and Ibid. pl. 6. ecutors, to be equally divided anong bis sons; 40. See Parties ; and lit. pl. 7. and, if any of h s sons should die, their part ar 41. It is error to disaiss a bill in chancery as to par. parts to be equally divided among the rest of their ties who have not answerd, and on whom a de brothers ; and likewise with his daughters, in case er entri has not be served, or published ac- any'should die ; all it his h irgacies he has given his cording to law. Henderson, Or. v. Anderson's sons, he did bind them, their heir and assignat fer Executiix, C. p. 435. ever." Under this will each of the sons look an 42. Where a charge of fraud is made in the bill, but estate in tail, which, by the Act of October, 1779, denied in the answer, and the testimony is such was converted into a fée simple. M'Clantic Grud ESTOPPEL. 1. Although an appeal, once allowed, cannot be re 44. See Executors and Adminis'rators; and Crutcher gularly dismissed from the appellate court, but in Crutcher's Erecutors and Serurities. p. 457. the mode prescribed by the statute; yet. the par 45. Under what circumstances, a vendor of land may ty obtaining it may, by his express consent, or by recover the purchase money by a suit in equiry, acts indicating such consent estop himself from after bringing his action, and being cast at law. objecting the pendency thereof, and may, by suck Hawkins ». Depriest, p. 469. acts or consent, with the concurrence of the ado 46. A verdict and judgment ut law against the plain. tiff is no bar to his recovering, in equity, for the Verse party, restore the jurisdiction of the court below. Fairfar v. Mure's Exeruters, p. 124. same cause of action ; it not appearing that the 2. What acts of an appellant, who fails to prost cute merits of the controversy were fully and fairly his appeal, are sufficient to estop and prelude tried and determined at law; and the case stated him from relying on the pendency thereot. Ibid. in his bill, and supported he proof, being such as 3. If judgment | rendered against an adrüinistra to entiile him to equitable relief. Ibid. tor for a debt of his intestate, a:d. after his death, 47. On the bearing of a suit in chancery, if it be dis. an action of debt, suggesting a devastevit to have covered that the cause is not matured for hearing been committed by him in his lifetime, be brougbt as to some of the defendants. against whom the against his administrator, such defendant is esloga plaintiff appears to bave a claim in equily; the ped, by the judgment, from pleading that no as: bill ought not to be dismissed upon the meris ; but sets of the estate of the original intestate ever those defendants against whom there came to the hands of the said original administra is no equity ; as to the other defendants it should tor. Eppes's Administrator: v. Bagley's Adria be sent back to the rules for farther proceedings; nistrator, pl. 4, p. 466. L P. 59. p. 80. P. 186, EVIDENCE. as to the land, certain documents and other cui. Blankr's Administrator v. Foushee, p. 61. ground that it ought not to have been allowed, the pl. 3, p. 66. land," according to contruce," is a sufficient memo- nistrator and Heirs, p. 77. nesses, that the person, of whom the plaintiff slalor v. Winckler's Executor, p. 136, parol acknowledgments, by the defendant, or by Smith and Wife v. Towner's Administrator, p. 191. ed, may prove, by the executor, (if he has no ob- title to the slave, and could bequeath it. Ibid. of a court of competent authority, in any other of quent payments or discounts. Buford v. Buford, made pendente lite, was afterwards set aside on ex. of duly authenticated. Ibid. nies ought not to be permitted to give evidence and others, p. 273. torney, employed, as such, to draw a deed ; and, 16. See Detinue ; and Elam y. Bass's E.teculors, p. 301. evidence, if the original, or a copy thereof, could be had, Whitacre v. M' Thaney. p. 310. in ejeciment, the court ought not to admit it to go by it. Ibid. Pintony. p. 371. to the jury as evidence, though not recorded. Fux. lor v. Lee, p. 373. duced a bill of sale to support his title, the plain. ing possession. Ibid. pl. 4. Tras a fair purchaser for a valuable to be left to the jury upon the evidence. Ibid. pl. 5. the proceedings, in a suit, to have their full 382. serted in a newspaper two months is not sufficient. beld. Myrick, Administrator of Lundie, v. Adams, roads, the probate of wills, and granting of admi- in the court below. Bohn v. Sheppard, pl. 5, p. 403. the purchaser of land sold for non-payment of the V. Minor, p. 431. party to the cause, that he committed the tres. v. Cooper, p. 458. felony, or binding him in a recognizance to ap- cause. Maddox v. Jackson, p. 402. suructing the jury ibat a magistrate's having com. p. 306. P: 241. mitted the plaintiff, or bound him in a recogni- veyance set aside as fraudulent; and upon its a? may appear right. Ibid. pl. 3. 6. It seems, that since the attorney at law, who pro commitment or recognizance. Ibid. pl. 2. secutes a suit and obtains judgment, has fall po 33. A legally certified copy of an ancient deed, record. er to receive the money recovered when evidly ed on the grantee's acknowledgment, and accom. execution, (see Branch y. Burnley i Call , 10): proof that the original is lost or destroyed. Row- such sheriff for non-payment. Wilsen v. Stroke and Beuts, p. 450. against the drawer, the note appearing to be " for executions, and for other purposes," the deter was not entitled to a stay of execution, o toase of the property on credit, on any forlicemente dete executed after the passage thereof. Ritual Perkins, p. 512. 8. The provisions of the 13th section of that att , fe* for that he had made it withoui any consideration, quiring the debtor to pay all costs, ke dd embrace the ease of a sale under the 14th strict on the ground that no previous entrs iei veri 35. Upon a declaration in covenani, charging, in ge- mate on the record of the plantiti sekolo io neral terms, the breach of a contract to deliver a take elegit, nor Lecause it was issued without the quantity of corn at a given time; the jury, in as- laming the leave of the count: the notion to quase sessing the damages, are not restricted to the value it being made by the defendant against whoia the judg went was rendered. and noč by a franchement 1. An executor, bring sued on a bond of his testata of more than i wenty years standing, was gat** 1. See Bill of Exceptions. by his counsel to rely on the presumpik n o pas• posing such presun.ption & sufficient delince, De glecued to foi tify it by other lesumony, which was In consequence of evidence given 1. Under the act of January 29th, 1805, "to rtform by one of the jurors in ihe jury-room, a verdat the practice of the District, County and Corpora. was found against him. He moved for a new trial on that ground, but was denied it. He afterwards obtained a new trial, by applying to a Court of though not mentioned in the writing, and not de manded by the declaration. Baird v. Peter, p. 76. Equity, on the ground of make and accidten. 2. A notice that a motion will be made for a judgment Price's Executor v. Fuqua's Administraler, p. 68. 2. If one of two executors take a bond 10 himself as against a sherist for the amount of his receipt for executor of the testator, (without mentioning the sundry executions for tines, “ as appears by a copy of said receipt,” is sufficient, without mentioning other.) his executor may sue opon it, nol with: standing the other executor survived him, and the aggregate sum due, the separate amount of each execution, or the lime when delivered to the acred as such, and gave no assent to the institucion of the suit. Pulliam's Executrix vJahnsen and sheritf-and a judgment thereupon for the aggre. others, p. 71. gale sum due, without distinguishing the amount 3. Qucere, whether an action upon the cast lies in of each execution, will be sustained, it conformable farour of the executor of a person injured by the to law in other respects. Segouine v. the Auditor of public accounts, p. 398. malfeasance in office of the clerk of a court? Monroe v. Webb's Executors, p. 73. 3. A judgment by default against a sheriff for fines collected upon executions in behalf of the com. 4. It is error. (though the bill be taken for confessed.) to decree against an administrator de bonis mesi, monwealth, may be sustained, although his receipt for the executions be not inserted in the record. that he shall pay a legacy, without "requiring the bid. legatee to give bond and security for refunding 4. A sale of a tract of land, by a debtor charged in his due proportion of any debts or derzuiden execution, is not necessarily fraudulent and void which may afterwards appear against the escate as to the creditors at whose suit be is in custody, of the testator, and the costs attending the reco. but may be supported, if made to a bona fide cre. very thereof." Rootes v Webb, p. 77. ditor, for a reasonable consideration, and without 5. An executor may be allowed a commission for any secret agreement or understanding between turning bonds, or other debts, payable to his tes the parties, that the land is to be holden for the tator, into mortgages. (without any aetusi receipt use and benefit of such debtor. Bullock v. Irvine's of the money,) and delivering such mortgages to Administrators, p. 450. the legatees." Hipkins v. Bernard, Exéculer of 5. If a debtor charged in execution, convey a tract of Hijkins, p. 83. land, without a reasonable consideration, or with 6. An executor is entitled to a commission upon sales a secret agreement, or understanding that th per of crops made by him upon the lands of his testa. son, to whom such conveys pee is made, shali hold tor; the proceeds thereof being lawfully received the land for his use; png breatterwards take the and accounted for by him: and also upon money oath of'insolvency; a creditor, at whose suit he found in the house, and disbursed by him for the was not in custody, may tile a bill to have the con. use of the family, or invested in bank stock. Ibid. 7. Under circumstances, an executor may be allowed a ; expenses of administration, (including clerk.hire, rent of a counting room, and postages,) in addition to his commission of five per cent. p. 83. 8. In a suit upon an administration bond, for the bes nefit of distributees, (two of whom were the admi. nistrators,) judgment was rendered against the executors of the security only, for the amount of the inventory. On a bill in equity to injoin this judgment; it appearing. by an ex parte setilement in a County Court, that a considerable part of the estate had been bona fide disbursed by that administrator ; and pardy to some of the distributees; relief was given, though no defence had been made at law. Preston and others, Executors of Hall, v. Gressom's Distributees, p. 110. 9. Ăn executor cannot defend himself against the suit of a creditor, by shewing that, before he had notice of the plaintiff's deinand, he paid over the assets to the legalres of the testator. Kippen olya Co. v. Carr's E.reculor, p. 119. 10. In what form the declaration may be drawn, in trespass, by an executor against an administrator, for goods taken away by the intestate from the testator. Vaughan's Administrator v. Winckler's Executor. p. 130. 11. Quære, whether vindictive damages may be reco. vered in such action? Ibid. 12. In trespass against an administrator for goods taken away by the intestate, judgment ought not to be reversed for concluding, and the defendant may be taken," &e. instead of, * and the detelidaat in mercy,” &c. Ibid. 13. See Equity, No. 60; Pennington v. Hanby and other's, p. 144. 14. See Legacy; and Smith and Wife v. Townes's Ad ministrator, p. 191. 15. A sale of a slave belonging to the estate of a testa tor, by a person namid as one of the executors, but who, at the time of such sale, had not qualified, and afterwards died, withort having qualified, by giving bond and security, is void against the exetutor who did qualify; notwithstanding such sale was made for valuable consideration, and at a time when there was no qualified executor. Moni ot, Exerutor of Jones, v. Jomes, p. 194. 16. If, without fraud or collusion, a decree be render ed, by a court of competent jurisdiction, against an executor ; he may bring his suit in equity against the legalees, for contribution to satisty such decree; without paying the money himself ; and without having appealed to a superior court; though requested and advised to do so. Bower's Executor v. Glendering, p. 219. 17. If a widow executrix purchase slaves for the estate of her husband, by his direction, with money left by him for that purpose; but afterwards hold ihein as her own, and apply their profits to her own use; she is to be considered a trustee for the bene. fit of his estate, and responsible in equity, but not at law, to his legatees.' Redwood v. Riddick and Wife. 18. And if she marry again, her second husband, hold ing and using the slaves and their proties, is in like manner responsible. Redwood y. Riddick and Wife, p. 222. 19. Upon the death of a husband, who survived his wife, and administered upon her estate, his executor, (or, it seems, his administrator.) is entitled to be administrator de bonis non of the wife, in pre. ference to her next of kin. Hendren v. Colgin, p. 231. 20. It seems, too, that his executor is entitled, in pre ference to his residuary legatee. 16:4. 21. Where an executor dies without any personal re. presentative, a Court of Equity may, at the suit of a legatee, and wihuut any previous suit having been brought against the executor to convict hin of a derastavit, conyone the securities of the executor, or their representatives, and the persons who would be interested in any estate which the executor may have leti, and make the securities liable for any misapplication or wasting of the asVOL. IV. sets which shall be established in the progress of such suit in Chancery. Spollswood v. Dandruge and others, pl. 2, p. 289. 22. Under what circumstances a suit in equity may be brought against the securities of an executor, administrator, or guardian, without any previous judgment or decree against their principal, Sportstood v. Dandrutge ond others, p. 289. 23. Under like circumstances, a court of equity will give relief avainst the securities in a guardian's bond, and the executor of the decedent was also guardian to the legalee, the two sets of securities, and their representatives, may be jointly sued. Ibid. pl, 3. 24. If au greement of sale, by an executor, under the will of his testator, be equivocal, the court should be inclined to consider it a sale by the acre and not by the tract ; it being a dangerous principle: that executors, or other filuciary characters, should take upon themselves, by means of bargains of huzard, to jeopardize the interests confided to their care. Nelson v. Carrington, Executor of Burwell, pl. 3. p. 332. 25. A testator, in the year 1784, having directed that his executors should sell all his real anu personal estate for the payment of his debis; and having appointed four ctecutors, three of whom qualified; a sale, in the year 1741, by two of the aciing executors. was considered valid; and the third executor, (as well as th fourth, who never qualified) was presumed to have renounced his right to ad. mimster, as at the date of the sale in question. Ibid. pl. 9. 26. If the written agreement of sale be signed by the purchaser, and one of the two acting executors; ihe other may, by acts in pais, though not in writ. ting, (such as delivering possession of the land and the like.) manifest his ass. nt to the sale, and make it his own act. Ibid. pl. 10. 27. Although a tract of lan: be decreed to be sold to satisfy a morigage. the executors otthe mortgagor, being authorized by his will to sell all his real and personal estate, may sell it for a full and tur price, with the assent of the mortgagee, or his attorney. ibid. pl. 11. 28. Where an executor is directed by the will of his testator, to sell the real as well as the personal es. tate, and to listribute the surplus after payment of debts, among the legalees, he may assign the bonds, taken for the property sold to the persons entitled to distribution, and be discharged as to so much; the bonds appearing to have been well secured when taken, and to remain due from responsible persons at he time of such assigament. Guerrant v. Johnson and others, p. 360. 29. Quare, whether a decree, requiring persons, enti tled to distribution of the estate of a decedent, to give bond and security for refunding due proportions of such debts as the executor or administrator may thereafier be compelled to pay," &c. be cor rect or not? bid. 30. An executor, who sold the estate of his testatorin Marel 1781, taking bonds payable the 25th of De. cember ensuing, and received, in payment, a quantity of paper money, a day or two alter the bonds became due, was held responsible for the value therrof in March 1781, because, by virtue of the act establishing the scale of depreciation, which passed December 24th, 1781. paper money ceased, jrom and after the passing of that act, to be a legal tender; and if the executor had refused to receive it, the debtors would have been compelled to pay, in specie, the value of the paper money, at the time of the contract, as fixed by the scale. Myrick, Adrninistrator of Lundie, v. Adams, p. 366. 31. In this case, the paper money having been receiv. ed by one of two co-exeeutors, the deer e, directed by this court, was against the estate of him only who received it. Ibid. 32. It i error to render a joint decree against two co. executors, when only one is before the court. Ibid, 33. The account of an executoi baving been settled 4 C |