his testator, and takes a bond payable to himself as executor, and dies leaving the bond uncollected, it was held, RUFFIN, J. dissentiente, in the absence of any evidence that the executor had appropriated the bond to his own use, that both at common law and under the act of 1794, (Rev. ch. 415,) "to explain and supply the deficiences of certain acts of Assembly respecting sales by executors aud administrators," the bond was of the assets of the testator, and an action on it might be brought by the administrator de bonis non. Eure v Eure, 206 256 12. By the same. Is there any remedy against the executor of an administrator for a devastavit by the destruction of assets? QUERE. But if the administrator has converted the assets to his own usc, it seems the administrator de bonis non may recover against his executor for money had and received. Ibid, 253 13. By RUFFIN, J. An executor cannot retain his commissions against a creditor or a legatee, until they have been allowed by the county court, or in a suit for the settlement of his accounts. They cannot be allowed by a jury upon the plea of fully administered. Hodges v Armstrong, 14. Where the plaintiff bailed a slave, and after the death of the bailee his executors continued in possession, it was held by HENDERSON, C. J. and HALL, J. that although the plaintiff might declare against the executors as executors, for a detention after the death of the testator, yet, as the testator's interest had determined, there was no proof to support the declaration In the same case, held by RUFFIN, J. that detinue will not lie against an executor for a detention after the death of the tes tator. Mobley v Runnells, 303 15. Where the same person is administratrator, and also guardian of the next of kin, his returning an account of his administration, and acknowledging a ba lance due his ward, is not a performance of the condition of his administration bond. But it is otherwise if the money to pay the balance is identified, and retained by the guardian as the property of the ward. Harrison, on the relation of Amason v Ward et al. 417 16. In such a case, are the bonds cumula. tive. QUERE? Ibid. 17. Where a testator, in the event of the death of his executor, directed the county court to appoint some person to administer his estate, the executor of the first executor, is not the execntor of the first testator. Roanoke Navigation Company v Green, 434 by RUFFIN, J. By the act of 1824, this court is bound to permit amendments which would be of course in the court below; but it is not authorised to direct them to be made in the court below, nor to make any but such as are necessary to support the judgment of the superior 2. Grist v Hodges, court. 204 2. By the same. None can be permitted here, which would affect the judgment below, or upon which ordinarily a new plea is admitted. Ibid. 3. By the same. Notwithstanding the dictum in Dowell v Vannoy, (ante 43,) verdicts which are defective in form, from the misprision of the clerk, will be cor rected in this court, if the substance is intelligible. Ibid, 4. By the same. Defects which require an actual amendment, and which are not cured by the statutes of jeofail, can be amended only upon the payment of all costs. Ibid. 207 5. Where the amount of damages laid in the writ was increased, the amendment was permitted upon the payment of all costs. HENDERSON, C. J. dissentiente as to the payment of costs. Ibid. Vide Damages, 2. Judgment, 3. 3. 4. Butler, Doe on dem. Oneal et al. v 94 An agreement between the parties to a cause, made after the issuing, but before the return of the writ, refering the suit to arbitration, and making the submission a rule of court, does not authorise the entry of a judgment upon an award filed at the return day of the writ. Simpson v Mc Bee, 531 By DANIEL, J. In this State judgments are entered upon awards, where, by the rule of the common law, attachments would issue for their non-performance. Ibid, 533 By the same. The Statute of 9 and 10 Will. 3d, respecting reference, is not in force here. Ibid. Vide Action-Limitation, Statute of 4, 5. 2. 3. amount. Assumpsit will not lie upon a promise to pay a debt when the same debt may be recovered in an action on a specialty; but it is otherwise, when from any cause, no action on the bond can be sustained. Wilson v. Murphey, 352 Where land was demised by deed, and the lessor covenanted to pay for certain work done on the premises by the lessee, and after the expiration of the term, the lessor promised to pay the lessee an ascertained balance for the work done; held that assumpsit for the work was improper. Ibid. ATTACHMENT Vide Abatement, 1. Garnishment. BAIL. No matter can be pleaded in discharge of the liability of bail, except the death or surrender of the principal. Granberry & Parker v Pool, 155 2. By RUFFIN. J. If it is unlawful for the principal to come into the State, or if he is imprisoned abroad for a criminal of fence, the court will in its discretion relieve the bail. But no relief will be given, where the bail is imprisoned abroad for debt. Ibid, 157 303 bailor; yet, if the latter, by his own showing has none, he cannot recover. Mob Vide Lex loci contractus 2. Possession 2. ley v Runnels, BANK STOCK. tion. Stock standing on the Books of the Bank of Newbern, in the name of the Presi dent and Directors of the Literary Fund is Stock held by the State, within the meaning of the act of 1814, (Rev. ch. 780, s. 11,) extending the charter of that Bank; and therefore not subject to taxaState Bank of Newbern, 372 BILLS OF EXCHANGE AND PRO1. Where A and B were endorsers of a bill MISSORY NOTES. drawn for the accommodation of C, and A, being the first endorser, paid it, and afterwards received the note of C, endorsed by B, for one half the amount, it was held, that this note was not given for the accommodation of A and that he might recover on B's endorsement.-A bond payable on demand, which is Hatchery McMorine, assigned eight years after its execution, is dishonored, and liable, in the hands of of the assignee, to all the defences which the obiigor had against the obligee. But these defences, in order to be available at law, must be legal defences. Haywood v McNair, 3. By the same. A plea of the death of the principal, cannot be received in this court, because it has no jury to ascertain its truth. Ibid, 158 4. The proper county to which a ca. sa. should issue, in order to change the bail, is the county where the original writ was executed. Finley v Smith, 247 5. By RUFFIN, J. If the defendant has no fixed residence in the State, then the ca. sa. ought to issue to the county, where the bail bond was taken, that the bail may have notice. But if the defendant has acquired a domicil in another county, and the plaintiff has notice of it, the ca. sa. ought to issue to that county. Ib. 249 2. 6. By the same. A temporary residence by a single man, without property, is not such a change of domicil as justifies the plaintiff, in order to change the bail, in issuing the ca. sa. to any other county than that in which the original writ was executed. Ibid. 7. A sheriff, who is special bail, may, under the act of 1777, (Rev. ch. 116,) surrender the principal to himself, and after the surrender, he detains the principal and notifies the plaintiff thereof, his liability as bail ceases. Huggins v Fonville, 392 8. By DANIEL, J. If a sheriff, who is bail, surrender the principal to himself as sheriff, and aferwards there is an escape, the remedy is by debt or case. Ibid, 394 9. Bail may surrender their principal after a verdict, but before a final judgment against them. Moody v Stockton, 431 10. The act authorising such a surrender, necessarily authorises some mode of avering it-it should be by a plea framed so as to enable the plaintiff to deny the surrender, and contest the identity of the principal. Ibid. Vide Escape. BAILMENT. By HENDERSON, C. J. Although the bailee is not permitted to dispute the title of the 3. 4. 228 231 390 In an action upon a promissory note, a total failure of consideration may be given in evidence to defeat it; but it is otherwise where there is only a partial failure; that can be remedied by a distinct suit. In an action by the holders of a bill of Washburn v Picot, exchange, against a bank, for not giving the drawer notice of a non-payment by the acceptor, the fact of the drawer's insolvency, may be estimated by the jury, in assessing the amount of damages,Vide Principal and Attorney. Usury, 1, Stowe v The Bank of Cape Fear, 408 3, 4, 5, BOND. 1. Bonds given by officers for the faithful discharge of their duty, which do not conform to the act requiring them, can only be enforced according to the rules of the common law; and a bond given by a sheriff in a penalty greater than that required by the act of 1977, (Rev. ch. 118,) is net within the provision of that act, authorising successive suits on sheriffs' bonds, and is extinguished by the first judgment thereon. Branch, to the use of the Bank of Cape Fear v Elliott. 86 2. By RIFFIN, J. In debt on a bond, the verdict need not state its amount. Ib. 88 3. By the same. The rule adopted in this court respecting official bonds, which do not conform to the act requiring them, is disapproved, but followed. Ibid. 4. By the same. But although a judgment upon such bonds is a bar to a second snit, if the bond is within the statute, (8 and 9 William 3d,) the relator may have a sci. fa suggesting other breaches; or if not within that statute, execution may issue at his risk, leaving the defendant to seek relief in equity. Ibid. 6. By RUFFIN, J. It seems that a bond, which is retained by the obligor and subsequently delivered, does not relate beyond the actual delivery. Leadman v Harris, 144 6. After a bond has been discharged by the principal debtor, it cannot be set up again to the prejudice of a surety, by a subsequent agreement between the principal and obligor. Woodman v Mooring, 237 7. An alteration in a bond, which is prejudicial to the obligee, as where the date was altered so as to deprive him of one year's interest, is presumed to have been made before the execution. Pullen v Shaw, 238 8. The acts of Assembly which direct the justices of the county courts to take bonds in certain cases, confer on them as to such bonds,a corporate character; and they may take a bond from one of their number to themselves. Justices of Cumberland v Armstrong, 284 9. By RUFFIN, J. A bond payable to the justices of a county which is not taken according to the direction of the act authorising it, may be supported as a valid bond at common law. But an action must be brought on it in the name of the surviving obligees, and not in that of the successors. And if one of the obligees be a justice at its execution, it is void as to all. Ibid, 286 10. A bond made, by a guardian and his sureties "to A, B, and the rest of the justices," is not in pursuance of the act of 1762, (Rev. ch. 69, § 7,) and can be 13. Where an order of the county court allowed a guardian to renew his bond with A and B, his sureties, and a bond not drawn according to the statute as an official bond but good in its form as an obligation at common law, was sealed by A only, and left with the clerk, it was held that a delivery conld not be inferred, there being no evidence of an actual delivery. Fitz ex relatione Slade v Green, 291 A bond pay 14. By HENDERSON, C. J. able to " A. B. chairman, and other justices of the court," &c. is in law payable to A. B. alone. Ibid, 296 297 the land was surveyed, is not admissible Governor Meilan, 2 Law Rep. 460, is to control the course and distance. Reed' Williams Ehringhaus, ▾ Shenck, 65 Granbury v Mhoon, ante, 1 vol. 456, in Taylor, 529 2. Where the plaintiff and defendant claimed under two different grants, the junior of which called for the line of the elder, and a line of marked trees was found cor-Jones v Brodie, 3 Mur. 595, in Godley responding in age with the junior grant, held that this fact was not evidence of the boundary, of the elder grant. Doe ex dem. Sasser v Herring, 3. A question of boundary, discussed by HENDERSON, C.J. Ingram v Colson, 520 Vide Color of Title. 178 Kirk v Coble, ante, 2 vol. 419, in Governor v Davidson, CA. SA. BOND. 340 361 Lanier v Stone, 1 Hawks, 329, in Den. Speight, 428, McRae & Evans, ante, 2 v. 383, in Branch Eliott McLellan Hill, ley Taylor, lins v Nall, 86 Rep. 474, in God 178 COM-McMillan & Smith, 2 Law Rep. 75, in Col 224 Anders v Anders, ante, vol. 2, 529, in Mc-Palmer v Faucett, ante, 2 vol. 240, in At |