does not entitle him to the furplus of the debts due the teftator, nor does it difcharge him from a debt which he owed himself. Fleming vs Bolling, 75. 3. What paffes under a refiduary devifee. Read vs Payne, 225. 4. The act of 1785 only gives a power to devife after acquired lands, leaving it to the difcretion of the teftator to difpofe of them or not, and therefore it muft appear that the devife evidently contem plated them, or they will not pafs. Harrison vs Allen. 229. 5. Reafon of the difference between them and perfonals. Ibid. 6. What words pass a fee in a will. Watson vs Powell, 306. 7. The word Estate, in the preamble of the will, may be incorporated into the devife, fo as to pafs a fee. Ibid. 10. E. P. devises a flave to her daughter for life, and if fhe die before my fon J. P. then to be given to my fon J. After which fhe gives the re. mainder part of her eftate to be equally divided among her four children T, J, M, & S. It feems that the remainder of the flaves paffes. Crump vs Dudley, 507. DISTRIBUTION. When in dividing flaves, it cannot be conveniently done without feparating infant chil dren from their mothers, compenfation may be made in money. Fitsbugb vs Foote, 13. Vide LEGACIES, I. 1. An aflignment of dower in lands and flaves, by order of the county court on a motion only, and without any fuit for that purpose, will not be fet afide after a great length of time, but the inequalities and excefs only corrected. 8. Devife of land to J. H, and his heirs; but if J. H. dies without a lawful heir, remainder over to R. H. and ney, Fitzbugh vs Foote, 13. 2. Wife not entitled to moarifing from land fold by his heirs, creates an eftate tail the hufband during his lifein T. H: which, by the act of time, in lieu of dower. affembly for docketing entails, is turned into a fee fimple. Hill vs Burrow, 342. 9. If the title of the heir be abated by a ftranger, he cannot devife it before entry. Hall vs Hall, 488. Ibid, 3. The heir cannot maintain an action for a trefpafs committed on the quarantine lands of the widow before af fignment of dower. Latham vs Latham, 181. EQUITY. 1. Where equity is equal the law muft prevail. a warrant in favor of any perfon, the court will prefume payment by the treasurer unJohnston vs Brown, 259. lefs the warrant be produced, 2. If A. have fuch an equi- or the payee otherwise dif ty as would, on a caveat prior charge himself of the receipt. to the grant, have entitled Commonwealth vs Garth, 6. him to a preference, it will 2. The affignee of a promibe no ground for a bill to fet fary note, negotiable at the afide the patent, unless he bank of Alexandria, cannot was prevented by fraud and offer it as a discount to a accident from profecuting a fuit brought against him by Ibid. the affignee, upon a note in caveat. Mandeville vs Patten, 9. 4. If in a fuit upon a bond with condition that if the plaintiffs fhall be caft in two fuits then depending, the obligor will pay &c, It appears that the plaintiffs had inftituted fuits upon administration bonds, this evidence will maintain the declaration. 3. A contract will not be writing to deliver to the plainfufpended in equity till a tort tiff wet goods and groceries is tried. Harris vs M'Gee 502 to a certain amount. 4. If A. agree to furnish B. with goods at 85 per cent on the prime coft payable in tobac co at the market price, and B. being informed of the prices, take fome and reject others, and feveral fettlements are made, and a bond taken for the balance; yet if B. afterwards discovers, that A. laid an advance upon the goods before they were thipt, and that the tobacco was credited at 10 or 15 per cent less than the felling prices, a court of equity will grant relief. Broddus vs M'Call, 546. EVICTION. Mackey vs Fuqua, 19. 5 If the answer admits dealings, and the commiffioner reports a balance due without exceptions before him, or in the Court of Chancery, the defendant cannot object in the Court of Appeals that there was no evidence of the debt. Brewer vs Hastie, 22. 6. Quere. Whether a depofition taken after a caufe is decided, but during the fame term, can be brought in before the end of the term, and made part of the record. Bullock vs Goodall, 6. Evidence of a parol gift of flaves may be received, in order to prove five years poffefion, fo as to bar the plaintiffs demand. Jordan vs Murray 85. 7. A depofition, taken after an appeal from interlocutary decree in Chancery, may be read upon the hearing of the appeal. Alexander vs Morris, 90. 8. The written instrument is in general to be reforted to, in order to afcertain whether the contract was for fpecie or Commonwealth paer. vs Beaumarchais, 122. 9. It is a general rule that parol evidence is not admiflible to explain the ambiguities of a deed. Gatewood vs Burrus, 194. 10. How far evidence de bors the deed may be received. Herbert, vs Wise. 239 11. Vide TENDER AND REFUSAL I. 12. Loose converfations of the executor are not fufficient to raise an affumpfit. Henderfon vs Foote, 248. 13. Quere: Whether a declaration on the affumpfit of the teftator can be supported by evidence of an affumpfit by the executor. Ibid. 14. Vide REPORTS in CHANCERY, I, 2. 15. A furvey annexed to the record and not excepted to in the court below, will be confidered as admiflible in this court: The more efpecially, if accompanied by the furveyors depofition. Johnston vs Brown, 259. 16. Variance, between the arbitration bond declared on, and that recited in the award, is not fatal. Ross vs Overton, 309, 17. Semble, that a depolition taken under a commiflion, awarded before the bill was filed, and executed by two perfons of whom one was not a magiftrate, may be read in a fubfequent suit. Zbornion vs Corbin, 38418. In an action for a malicious profecution in a foreign country, it is not indifpenfably neceffary to produce a copy of the record of the proceedings there, but the plaintiff may prove them by other evidence. Young vs Gregory, 446. 19. If the answer denies impofition, and is fupported by the report of the commiffioner and the acknowledgment of the plaintiff that the debt is juft, it will not be fet afide by loofe converfations. Harris vs Magee, 502. 20. If an adminiftrator brings detinue, he is not bound at the trial to produce the certificate for his obtain ing letters of administration, unlefs he receives notice that it will be required. Ibid. FACTOR. Hughes vs Clayton, 554. 1. A Factor, indebted to 21. Evidence of a commu- his principal at the time, cannication between the father, not sell the property of the and his daughters deceafed principal, to pay endorsehusband, as to the confidera- ments in the courfe of his tion on which a parol gift for factorage. flaves was founded, may be Alexander vs Morris, 89. left to the jury. 2. Nor can a Factor buy up EXECUTORS the debts of his principal at an under rate, and claim credit for the nominal amount; but in fuch a cafe he will only be allowed what he actually paid, although the purchase was made after the factorage had cealed and the principal had brought fuit for an a Ibid. count. AND ADMINISTRATORS. 1. What words will make the devitee executor. Fleming vs Bolling, 75. 2. Vide VERDICT. 3. Que: Whether an admin. iftrator can pay off a debt due by judgment against his intertate, on which faid judgment an execution had iffued, after a scire facias, made known to him, to revive a judgment obtained against his inteftate in his life. Goosely vs Holmes, 424. EXECUTIONS. 1. If the fheriff, at the requeft of the plaintiff, neglects. to return an execution, he is not liable to a fine. Bullock vs Goodall, 44 2. Quere: How far a court ought to go in impofing a fine upon a fheriff for not returne ing an execution. Ibid. EXPOST FACTO LAWS. The act of 1786, relative to joint obligations, does not operate retrofpectively. FEME COVERT. 1. If a feme covert be privily examined, her covenant for further affurance is ob ligatory; and a specific exe. cution will be decreed against herfelf if living, and against her heirs, if he be dead. Nelson vs Harwood, 394. FOREIGNER. A Foreigner who came here and contracted with the go. vernment, during the paper is bound by the ac eftablishing the fcale of depreciation. Commonwealth vs Beaumarchais, 122. money age, FINES. 1. Vide EXECUTONS, 1. 2. Excellive Fines are uncon ftitutional. Elliot vs Lyell, 261. Bullock vs Goodail, 44. FORTHCOMING BONDS. A Ferthcoming bond given by the defendant only, without any fecurity, is good, and will fupport a motion. Washington vs Smith, 13, FRAUD. Under the circumstances, the wifes conveyance of her property before marriage was fupported against her hufband. Crump vs Dudley, 507. If in a fuit against the heir, he pleads a plea, confeffing affets without fetting them forth in certain, and the plea is found against him, the plaintiff is entitled to judgment. Coboon vs Purdie, 431. INTEREST. Intereft during the war deducted from a debt due a British fubject refider.t abroad. Brewer vs Hastie, 22. INSOLVENT DEBTOR. In what order debts due from an infolvent debtor who is living, are to be paid. Tinsley vs Anderson, 329. JOINDER IN ACTION. The executors of two deceafed obligors cannot be joined in the fame action. Watkins ex'rs vs Tate, 521. ISSUE. If there be two iffues, and the jury are fworn to try the iffue, it is not error, Mackey vs Fuqua, 19. JUDGMENTS. A fuit in this court, which has been dismiffed by mistake, may be redocketed at a subsequent term. Thornton vs Corbin, 221, 232 JURISDICTION. 1. Vide AUDITor, 1. ACCOUNT, 1. CAVEAT, 2. 2. If the matters in dispute between the parties exceed 100 dollars, this court has jurifdiction, although the decree in the Court of Chancery was for lefs than that fum. Minor vs Goodall, 3933, Where the officer neglects to return the facts, fo that they do not appear on the trial at law, a court of equity may grant relief. Mosby vs Leeds, 443 4. This court has no criminal jurifdiction, and therefore no appeal lies to it from a judgment of the District Court for a mifdemeanor. Bedinger vs Com'nwealth 461. 5. What jurifdiction a court of equity may exercise after a trial at law. Barret vs Floyde, 531. 1. Quere: What certainty is required in an entry for lands? Currie vs Martin, 28. 2. Old furveys were often inaccurate, and mistakes often made in copying their defcriptions into patents, leav |