3. Practice stated at large with respect to petitions for re-hear-
ing. Ib.
4. An order, granting a re-hearing of a decree in equity, does
not per se vacate the decree; but only opens it for reversal, alter-
ation or correction. Lockwood v. Bates, Ass'ee, et al., 435.
5. If an order for a re-hearing is dismissed, or discharged by
agreement of the parties, without a re-hearing had, the original
decree stands precisely as if such order had not been granted. Ib.
XIII. Revivor.
Under a bill of revivor, upon default to put in an answer, the
original suit will be revived. Fennimore, Adm'r, d. b. n., v. Rahow,
Ex'r, 88.
XIV. Sale of real estate to satisfy a decree.
1. Under the statute, enabling the Court of Chancery to make
orders for the sale of real estate, when necessary in order to give
effect to its decrees, the Chancellor has power to order the sale of
real estate of a defendant against whom a decree for the payment
of money has been made after a return of non est to an attachment
against him for the non-performance of the decree, and upon its
appearing that his personal property has been exhausted by execu-
tions at law. Woolaston et al., v. Mendenhall, 23.
2. Practice upon applications for an order to sell the real estate
of a defendant in satisfaction of a decree for the payment of
money. Wollaston v. Phillips, 271.
Practice stated at large with respect to supplemental bills. Fen-
nimore, Adm'r, d. b. n., v. Rahow, Ex'r, 88.
XVI. Witness-objections to competency.
1. Objections to the competency of a witness must be made by
articles filed, according to the rule of court, and cannot be taken
at the hearing. Webster v. Hopkins et al., 70.
2. The rule of court, which requires that objections to the com-
petency of a witness be filed within the first three days of the term
to which the commission is returned, does not supersede the neces-
sity of filing articles. Westcott v. Allston et al., 74.
I. In a suit by a bank against a late cashier and the sureties in
his official bond, upon the death of the cashier insolvent, the
cause will proceed against the sureties, though no administrator of
PRINCIPAL AND SURETY-Continued.
the cashier may have been appointed and made a party defendant.
Farmers' & Mechanics' Bank v. Polk et al., 167.
2. One of two defendants in a joint judgment being deceased,
he having been the principal debtor in the judgment and the sur-
viving defendant being the surety, the lands of such deceased
defendant are held in equity, subject to the debt; and his lands
having been sold in execution of another judgment against him
alone, and the proceeds of sale being sufficient to pay the joint
judgment, the sheriff is responsible for the amount to the judg-
ment creditor, so as to bar a claim by the latter to receive satis-
faction out of a fund raised from the lands of the surety by sale
under a decree of the Court of Chancery. Ex parte Dixon, Ex'r,
261.
3. An agreement to exonerate sureties in a recognizance entered
into by a defendant in a writ of ne exeat, upon their paying part
of the decree recovered against the defendant, does not discharge
the liability of the defendant under the decree. Lockwood v. Bates,
Ass'ee, et al., 435.
PROCESS.-See ATTACHMENT-PRACTICE, IV, XIV.
1. Parol evidence of the indorsement of a promissory note,
without the production of the note, held inadmissible, though not
offered in order to charge the indorser. de Pusey v. du Pont et
al., 77.
2. The indorser of a promissory note, though fixed in his liabili-
ty by protest, is not entitled, as a creditor, to a share of the estate
of the maker under an assignment for the benefit of creditors.
Farmers' Bank v. Gilpin et al., 409.
3. Such an indorser is entitled only to be reimbursed payments
actually made by him. Ib.
4. The holder of the note can claim, under the equity of the
indorser, out of the assigned estate, only to the amount of pay-
ments so made by the indorser. Ib.
See EXECUTION, 2. FRAUDUlent ConveyANCE, 1. ÎNTEREST,
2. SET OFF, 2. TIME, I, 2. TRUST AND TRUSTEE, IV.
WASTE, 1, 4.
PURCHASER FOR VALUE, WITHOUT NOTICE.
1. The equitable defence of a purchase of land for valuable con-
sideration, without notice, may be made by answer as well as by
plea; but such defence, when made by answer, must be alleged
with the same fullness and precision as is required in a plea. Dick
v. Doughten et al., 320.
2. It is not sufficient that in the answer it be stated only by way
of recital, in connection with the statement of title, that the de-
fendant purchased for a valuable consideration and without notice.
The matter should be alleged, separately and distinctly from the
statement of title, and insisted upon as a bar to the equity of the
bill. Ib.
3. It is not sufficient to allege generally that the defendant pur-
chased for a valuable consideration; but it must be specifically
alleged of what the consideration consisted. Ib.
4. The statement by the answer that the defendant gave "a
full, fair and just price for said tract of land without any notice,
knowledge or belief that there existed any defect in the title of the
same, or that the said tract of land was liable to any claim or de-
mand of dower by the said M. D. (the complainant) or of any
other person," is not sufficient (if excepted to) as a plea of pur-
chase for a valuable consideration, without notice. But such an
answer or plea, if not excepted to, will be taken as sufficient. Ib.
5. Under the defence of a purchase for value and without
notice, the onus of proof is on the defendant. The acknowledg-
ment in the deed of the receipt of a consideration is not evidence
to support such a defence. Ib.
6. A plea of purchase for value and without notice is a bar only
against an equitable and not against a legal claim. It is no bar
against a bill for the assignment of dower, that being a legal
title. Ib.
7. A plea or answer, relying upon the equitable defence of a
purchase for a valuable consideration, without notice, must set
forth the consideration,-of what it consisted,-and must aver the
actual, bona fide payment of it, independently of the usual recital
of payment in the deed. Also, the plea or answer must deny
positively the fact of notice of the complainant's title or claim pre-
vious to the execution of the deed; and must deny every circum-
stance, charged in the bill, from which notice might be inferred.
Notice must be denied, though not charged in the bill.
Gilder v.
Gilder et al., 331.
8. This defence may be taken either by plea or answer; but
a denial of notice or fraud, charged in the bill, should be by
PURCHASER FOR VALUE, WITHOUT NOTICE—Continued.
answer also, in order that the complainant may be at liberty to
except to its sufficiency. Ib.
9. Under an assignment made to secure a pre-existing debt, the
creditor has not the equity of a purchaser for valuable considera-
tion. Lockwood v. Bates, Ass'ee, et al., 435.
See PRACTICE, XIV, as to sale of real estate to satisfy decree.
RE-HEARING.
1. A petition for the re-hearing of a cause upon the ground of
newly discovered evidence, not granted—the Chancellor consider-
ing that the evidence, if before him, could not vary the decree to
be made in the cause as it originally stood. Dale v. Smith et al.,
2. A re-hearing, after decree made, will not be granted for the
purpose of examining witnesses, or of admitting newly discovered
evidence, as to matters which were in issue in the cause as origin-
ally heard. Fennimore, Adm'r, d. b. n., v. Rahow, Ex'r, 88.
3. Practice stated at large with respect to petitions for re-
hearing. Ib.
4. An order, granting a re-hearing of a decree in equity, does
not per se vacate the decree; but only opens it for reversal, altera-
tion or correction. Lockwood v. Bates, Ass'ee, et al., 435.
5. If an order for a re-hearing is dismissed, or discharged by
agreement of the parties, without a re-hearing had, the original
decree stands precisely as if such order had not been granted. Ib.
RELEASE.
1. Under an Act of Assembly divorcing a wife from her hus-
band, a mensa et thoro, and granting to the wife all the rights,
privileges and immunities of a feme sole, the wife becomes com-
petent to execute a release of land charged with an annuity be-
queathed to her, under the will of a deceased husband, in lieu of
dower. Stilley v. Grubb, 406.
2. By the release executed to the purchaser of the land charged
with the annuity the complainant claimed the right to dower in the
land, and released the same for a valuable consideration. Held,
that she thereby precluded herself from claiming, against the pur-
chaser, the annuity bequeathed to her in lieu of dower. Ib.
3. It seems that the defence of compromise, or release, is avail-
able by plea only and not by answer.
Lockwood v. Bates, Ass'ee,
ELECTION OF Remedies, 1, 2.
1. Rents of real estate of a ward, received by the guardian after the guardianship ceased, are, unquestionably, the subject of an account in equity. Davis, Adm'r, v. Davis, 256.
2. Upon a bill to set aside a fraudulent conveyance, the Court, in granting relief, will only set aside the deed impeached. It will not decree a delivery of possession to the purchaser, nor an account of the rents and profits. Hall v. Greenly, 274.
3. Upon a decree for the assignment of dower against a purchaser of land from the deceased husband and for an account of rents and profits, the purchaser is liable only for rents and profits which accrued subsequent to the date of his purchase. To support a claim by the widow for rents and profits from the death of the husband all the intermediate purchasers must be made parties to the bill. Dick v. Doughten et al., 320.
See TRUSTS AND TRUSTEES, VI.
Under a bill of revivor, upon default to put in an answer, the original suit will be revived. Fennimore, Adm'r, d. b. n., v. Rahow, Ex'r, 88.
EXECUTORS AND ADMINISTRATORS, 7.
ORPHANS' Court, 1-Practice, xiv.
A written submission to arbitration directed that the award should be made in writing, indented, under the hands and seals of
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