technicality may be made up under the direction of the court; and though
the terms "not guilty," are not the most appropriate plea in such case, yet
they are sufficient to throw upon the plaintiff the onus of supporting the
allegations of his notice. Shute & Hackett v. McRae, et als.
931
See Constable and his Sureties, 1.
1. A plea to a promissory note that it was made on Sunday, in order to pro-
cure the discharge of the principal maker, who had been arrested on the
same day, upon a charge of bastardy, is good; and a replication that the
makers, with a knowledge of the facts alledged, " did ratify and acknow-
ledge the note," and then " promise to pay the same," is not a sufficient an-
swer to the plea. Shippey and another v. Eastwood,
198
2. Where a cause is submitted to a jury on Saturday night, the parties agree-
ing that the verdict might be received by the clerk, in the absence of the
Judge, it is competent for the clerk to receive the verdict on Sunday, if
the court continues its session beyond the week, and enter a judgment there-
upon on some subsequent day of the term. Sorrelle v. Craig, Adm'r, 535
TAXES AND TAX COLLECTOR.
1. Where an assessor of taxes, after giving the usual notice of the time and
place for assessing taxes, goes to the residence of an individual, and there
assesses him with a poll tax, he is liable to a forfeiture of twenty dollars
if he receives the statement of the individual without oath. The term tax-
able property used in the act, includes a poll tax, as well as all other taxa-
ble property. Carter v. Mercer,
556
1. In trover for slaves, the measure of damages is the value of the slaves, at
the time of conversion, or at any time between that and the time of the
trial. Tatum, et al. v Manning,
144
2. The owner of stolen goods may maintain detinue, or trover, against a pur-
chaser from the thief, although the latter has never been prosecuted, and
although the owner had just reason to believe the goods were stolen from
him by the individual named as the thief. Beazley v. Mitchell, 780
3. No demand is necessary in trover, where the defendant had employed a
slave for some time previous to the suit, in the ordinary domestic avoca-
tions, and upon the trial asserts a title in himself. Powell v. Olds,
See Bailment, 1.
1. When property is conveyed to one, in trust for others, and is subsequently levied on as the property of the grantor, the trustee is not entitled to go into equity to restrain the creditor. Bissell & Carville v. Lindsay, et al. 162 2. A deed of trust providing that the trustee shall first pay all debts described in the deed for which the complainant was liable, or liable in any other manner, and afterwards providing for creditors generally, does not authorize the trustee to pay the complainant as a preferred creditor, any other debts than those paid by him as surety. Gilchrist v. Gilmer, 985
3. If previous to executing the deed, the grantor agreed that a suit against the complainant as a surety would be defended by him, at his own expense the counsel fees afterwards paid by the surety, in defending the suit, are liabilities under the deed, but if expended in resisting the suit, the payment is not made as surety, and therefore is not within the deed. Ib. See Chancery, 10, 11, 12.
See Executors and Administrators, 3, 4.
See Guardian and Ward, 3.
See Orphans' Court, 13.
USAGE AND CUSTOM.
1. A witness who had lived both in N. Y. and M., understood it was the custom of merchants that the employer should pay the expenses and passage of clerks, who were engaged in the former, to do service in the latter place for the whole of the ensuing business season; that the witness, who was a merchant, had never so employed or paid a clerk, but he knew of one case where, under a stipulation to that effect, the wages and passage money of a clerk thus employed, were paid by the employer-Held, that this evidence was inadmissible, and consequently incompetent to establish the usage or custom of trade. Price and another v. White,
1. G. having large transactions with the Penn. B. U. S. by borrowing money, made a settlement with an agent of the Bank, and discharged the principal, and for the payment of usurious interest, transferred notes on three persons, and executed a guaranty for their payment. These notes were by the Bank transferred to trustees, for the payment of creditors, and B, as the agent of the trustees, reduced the notes to judgment. G then made an agreement with B, by which he obtained the control of the judgments, and took-up his guaranty, and executed his own note for the amount due, B being ignorant of the usury-Held, that there was a sufficient consideration for the note, and that it was not affected by the usury in the original contract. Gee v. Bacon,
2. When the defendant was irregularly allowed to depose as a witmess, to
the fact of usury, instead of making his statement, his evidence cannot be
excluded because the opposite party denies a particular fact stated by him
Under such circumstances, the denial should extend to the fact of the
usury. Palmer v. Severance and Stewart,
751
3. Where one party, with the assent of another, borrows money at a usuri-
ous rate of interest, to pay a debt for which both should provide, and after
the payment of such interest by the borrower, the other refuses to contri-
bute, but by agreement with the borrower, submits the matter of interest
to arbitrators, an award which adjudges him to pay half the interest will
be supported. Byrd v. Odem,
1. A variance between the writ and declaration, must be pleaded in abate-
ment, or in a proper case may be reached upon the trial by an objection
to the testimony, for a variance. The court is not bound to strike the de-
claration from the file for this cause. Turner, et al. 7. Brown, 866
1. The undertaking of a surety, is accessorial to that of his principal, and if
the principal admits the contract to be binding on him, it is also binding on
his surety, unless there be a fraudulent collusion between the debtor and
creditor, to charge the surety. Evans and Arrington v. Keeland,
42
2. A surety may avoid his contract for a fraudulent concealment, or misre-
presentation of facts by the creditor, to induce him to become surety, al-
though the contract for which he was bound as surety, is binding on his
principal. Ib.
3. A vendee of land, with warranty of title, may purchase in an outstanding
paramount title, or incumbrance, and may recover upon his warranty with-
out an actual eviction; but in such a case, he acts at his peril, and assumes
the burden of proving, that he submitted to a good title, paramount to that
of the warrantor. Davenport v. Bartlett & Waring,
179
4. When commissioners are authorized by the Orphans' Court to sell land,
and make sale of it in that capacity, and executed their individual bonds
with condition to make title when the purchase money is paid, the execu-
tion of such a bond, is a collateral matter, which is binding, if at all, upon
them individually. It is therefore no defence in an action upon the notes
given for the purchase money, that upon a tender of the money, they re-
fused to make a title. Jennings & Graham v. The Adm'rs of Jenkins, et
286
5. Three commissioners were authorized by the Orphans' Court to sell land,
but one attended in person, and another was present by an agent, and two
united in making a report of the sale to the court, by which it was con-
VENDOR AND VENDEE-CONTINUED.
firmed. The purchaser having executed his notes, and taken possession
of the land, which he retained for about three years-Held, that he could
not abandon the possession, and refuse to pay the purchase money, for an
alledged irregularity in the sale. Worthington, Adm'r, v. McRoberts, 297
6. A purchaser of land, at a sale made by order of the Orphans' Court, who
is let into possession, cannot defend himself at law, whilst the contract is
in force, when sued for the purchase money, for an alledged failure, or
defect of title. Whether Chancery would not, in certain cases, grent re-
lief-Quere?
297
7. The vendee of land, who executes his note for the purchase money, takes
possession, and retains it, cannot successfully resist, at law, the payment
of the note, upon the ground that some of the vendors were infant heirs, and
no administration had been granted on the estate of their ancestor, who
died intestate. Bird v. Daniel,
302
8. A purchaser who buys a tract of land, pays the purchase money, and ob-
tains a legal title without notice of an outstanding equitable title, will be
protected in a Court of Chancery. Hanrick & Powell v. Thompson, 409
9. Where a party had an equitable title to one half of a tract of land, of
which the line had not been run and ascertained, and was not one of the
subdivisions of land known to the land office, a possession, to be notice,
must cover the entire tract claimed. Ib.
10. A purchaser of a lot at a mortgage sale, where the lot had previously been
sold under execution against the mortgagor, and the possession delivered
by the sheriff to such purchaser, cannot transfer his title, so as to authorize
his alienee to sue in his own name. Pryor & Fisher v. Butler, 418
11. The title of the purchaser of land at a sale under execution, will not be
prejudiced, though he have notice of an unregistered deed, if the plaintiff in
execution was ignorant of its existence. Daniel v. Sorrells and another, 437
12. Upon a bill filed to rescind a contract for the sale of land, upon the alle-
gation that the vendor fraudulently represented that a portion of the tract
included in the bond for title, was contiguous to the residue, when in truth
it was remote from it, and did not adjoin the other lands, the vendee is not
entitled to relief by way of compensation, although the vendor admits there
was a mistake, and a portion of the land sold omitted out of the bond for
title, and another portion not sold inserted. Pierce v. Brassfield, 573
13. The vendor of land cannot successfully resist the performance of his a-
greement, by showing that the purchaser is indebted to him upon an ac-
count disconnected with the contract in its inception, or which by subse-
quent arrangement, is not made a part of it. Byrd v. Odem,
755
14. The vendor of a forty acre tract of land, well knowing the location of the
corners and lines, represented one of the lines so to run as to embrace nine
or ten acres of cleared land, when in truth it contained much less-the dif
VENDOR AND VENDEE-CONTINUED.
ference of value between the land pointed out and that conveyed amounted to almost one third the purchase money; upon discovering the mistake, the vendee proposed to the vendor to rescind the contract, or to be allowed to retain the land, and be allowed a deduction for the purchase money, or leave the matter to arbitration-which several propositions were rejected: Held, that these facts show a fraudulent misrepresentation, and entitle the vendee to a rescission of the contract. Elliott, et al. v. Boaz, et al. 772 15. Where E sells land of which he is the proprietor to B, and the legal title being in H, he makes a conveyance according to the vendee's directions, an offer by the vendee to rescind, should be made to E instead of H.— lb. 772
16. Quere? Is a vendee of land who proposes to rescind the contract, bound to abandon the posssession before he can file a bill to enforce a rescission, where his proposition is rejected by the vendor. However this may be, as a general rule, no such obligation rests upon the vendee, if the vendor is insolvent. Ib. 772 17. A deed for land, executed to a purchaser at sheriff's sale, is not void, be cause the purchaser made known at the sale the existence of certain deeds made to him by the defendant in execution, with the intention of purcha sing the property below its value. Such deed, if impeachable, can only be impeached in equity. Whether a sale made by collusion between the purchaser, and sheriff, is not absolutely void-Quere? Costillo & Keho v Thompson,
See Orphans' Court, 1, 2, 11.
See Pleading, 8.
1. When the imputed father pleads not guilty of being the father of the bastard child, and the verdict is, that he is the real father of the said child, the plea and verdict will be referred to the complaint, and an irregular issue offered by the Court will be disregarded, although the defendant's demurrer was overruled. Austin v. Pickett, 102
2. The jury returned a verdict in favor of plaintiffs for "fifty acres of the south-east fractional quarter of fractional section 24, in township 18, of range 18, in the district," &c,; the judgment substantially conformed to the verdict-Held, that the verdict did not sufficiently identify the land, to entitle the plaintiff to a judgment, under which the sheriff could deliver the possession of any specific part of the land. Crommelin v. Minter, et al. 595 See Criminal Cases, Proceedings in, 6.
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