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per averments, the bond might be declared 1. That B. on the original note, was only
on. Noore et al. v. Chapman, 466 entitled to interest at five per cent a month 7. A constable levied nine executions on a ne til! its maturity, and at eight per cent per
gro, and took nine bonds payable to the annum, afterwards. plaintiff, for the delivery of the property; 2. That the extension of time given rethe bonds being forfeited, the plaintiff leased the security. brought an action of debt, and declared in 3. That the notes of E. for $6,600 were one count on the nine bonds: on demurrer, not void for usury. the proceedings were held to be proper. 4. That E. being a security, was entitled to Sugg v. Burgess f. Davis,
509 relief in chancery,against all but the balance 8. Such bonds may be good as common law of the original debt, computing interest at 5
bonds, though not taken strictly as the per cent a month till due, and 8 per cent statute requires.
Ibid. per annum afterwards. Ellis v. Bibb, 63 See Debt 5.
5. In what cases chancery has jurisdiction to Penalty 4. 5. 6.
grant writs of ne exeat. See Lucas v. Release.
111 CASTING VOTE.
6. Chancery will relieve a surety against an Sce Officer 1.
execution, where the sheriff' has made the
money by a levy and sale of the principal's CERTIORARI.
effects, has returned 'no money made,' and See Appeal from Justice.
has absconded. Fryer v. Austill, 119 CHANCERY & CHANCERY PRACTICE|7. The answer of a defendant in chancery is 1. Chancery has jurisdiction to relieve a sheriff not evidence against a co-defendant, par.
where judgment has been obtained against ticularly where it tends to invalidate a title him, for failing to return an execution three made by himself.
Collier v. Chapman days before court; a sufficient excuse being
163 shewn for such failure, and also for the fail. | 8. Chancery will restrain a party from keeping ure to make defence at law, Roberts g. a public bridge without authority, and free Battle v. Henry,
42 of toll, whereby is destroyed a ferry estab2. In equity, a purchase by an administrator, lished by law at the same place. Gates v. at his own sale by auction, where no unfair M’Daniel f. Spurlin,
211 ness appears, is prima facie valid, and is 9. It seems that a party may be joined in
not void per se. Brannan et al v. Oliver, 47 chancery for the purposes of discovery 3. Nor will such a sale made in South Carolina merely. Cato v. Easley,
214 be held void here, though made without an 10. An infant defendant in chancery, having order of court, the laws of South Carolina been admitted to make full defence by his not being produced to show such order to
guardian, the revising court will consider be necessary.
the sanction given to such mode of defence, 4. In July, 1819, P. as principal, with E. as as equivalent to an appointment of guardi. security, gave their note, payable in six an ad litem.
Ibid. months, to B. for $3000, to bear interest at 11. It is no error that a decree does not fix a five per cent a month. In March, 1821, B. time within which an infant may impeach without the consent of E. at the time, en. it, as a time is given by statute. Ibid. tered into a new contract with P. who se- 12. A voluntary settlement in favor of children, cured the payment of $3,500 in one year, under certain circumstances, will be set and $4,000 in two years, by a deed of trust aside as fraudulent, as against an existing on twelve negroes, and B. agreed to remit crcditor.
Ibid. the remainder on said sums being paid: P.||13. The answer of a party in chancery is eviabsconded with the negroes. In January, dence against him, and also so much of the 1822, E. under the influence of alarm and bill as is necessary to explain the answer. mistake as to his legal rights, consented to M'Gowen f. wife v. Young,
276 give B. his notes for $6,600, and received an14. Though a party be injoined from removing assignment of the original note, and deed of property out of the State, yet he may maintrust; both believing that five per cent a tain trover against his adversary, for his month was recoverable on the original note, conversion.
Ibid. till paid. E. on these notes, paid $4,400,and 15. After judgment at law here, on a record was notificd by his principal, not to pay from another State, a want of jurisdiction of more than was lawfully due on the original the sister State over the person of the denote, at his peril. It was held,
fendant, is no ground for relief in equity;
such defence being available by a plea at 1 equity, bar the right of the husband to eotr. law. Lucas v. The Bank of Darien, 280 tesy. Rochon v. Lecatt,
4:29 Miller v. Pennington,
399 31. Nor does a decree of divorce a menea et Bigger adm'x v. Hutchings A. Smith thoro,
4-15 32. Nor an injunction obtained by the wife du. 16. Equity will not relieve against a judgment ring her lifetime, prohibiting the husband
at law, for mere technical defects in the pro. from intermeddling with her property. Ibid
ceedings. Lucas v. Bank of Darien, 280 33. A security in an injunction bond, filed his 17. All the parties in interest should be joined bill for relief against a judgment rendered
in an equity proceeding, but to this rule against him on the bond: held that he there are exceptions.
Ibid. could not go into the merits of the previous 18. Those only against whom process is pray- decree rendered against his principal, por
ed, are to be considered as defendants in a of the original judgment at law which had chancery suit.
Ibid. been injoined; no fraud being alleged in the 19. A bill for discovery must state the matter rendition of the decree. I'Broom v. Son sought to be discovered, shew that it is ma- merrille et al
515 terial, and state the nature of the defence at 34. Under some circumstances, the sickness
law, and not deal in vague inquiries. Ibid. and inability of counsel to attend court may 20. Affirmative allegations in an answer, not entitle a party to relief in equity: but if there
responsive to the bill, must be proved at are counsel in attendance who are unpre. the trial.
Ibid. pared, a motion for a continuance or new 21. But where the answer is not traversed, it trial at law is the proper remedy. Ibid.
is to be taken as true. Semble, Ibid. 35. A court of equity cannot, any more than a 22. Chancery will lend its aid to a creditor, to court of law, compel a party to relinquish
pursue an equitable fund for the satisfac- a security he has fairly acquired, or change tion of his debt, if he cannot obtain pay. it for another; therefore, equity cannot sub. ment at law. Lucas et. al. v, Atwood et. stitute a person as defendant in a judgment 378. in place of another.
Ibid. 23. And when he has subjected such fund by||36. Where a bill is dismissed for want of pro.
reason of superior diligence, he may retain secution, it operates as a discontinuance, it, and it will not be subject to general dis. and does not prevent the bringing of a new tribution.
Hid. 24. The creditor who first applies to chance-||37. Where money has been paid under a con. ners, and they having the right to control See Bank 1.2. the firm funds.
ry for the benefit of an equitable fund, is tract which has been rescinded or alleged to entitled to the preference.
Ibid. be fraudulent, an action at law lies to reco. 25. Courts of equity regard rather matters of ver it back; and in the absence of special
substance in determining the rights of par. allegations of failure of proof, or other mai.
ties, than mere technicalities. Ibid. ter of equitable relicf, chancery has no ju. 26. The supreme court has a general supervi. risdiction, Sadler et al. v. Robinson's sing power over all inferior tribunals, to heirs.
520 prevent, by injunction, the violation of any|38. Chancery cannot arbitrarily annul or repositive right; but cannot control the deci. scind a contract, to administer justice, but sion of the commissioners, under the act of is bound by rules and precedents. Ibid. 1829, in relation to pre-emption rights. 39. A party cannot claim a rescission of a con. Bell et al. v. Payne of. Williams,
tract, for fraud, after entering into new sti. 27. Where a defencc at law would be doubt- pulations concerning it, with a full know).
ful or difficult, equity can take jurisdiction. edge of the fraudulent circumstances. Teague v. Russell f. Doore, 420
Ibid. 28. Equity will not relieve for usury, where the 40. And where it is not rescinded, or other.
party has failed to plead it at law, and wise determined, the purchase money can. shews no excuse for the failure. Ibid. not be reclaimed.
Ibid. 29. Where a surety in a note under seal was||41. Long acquiescence in a transaction, with
discharged by the payee, by an unsealed out objection, will create a presumption of writing, and induced for several years to a waiver of a fraud, and a recognition of an believe he was released, and until the prin. act done by another.
Ibid, cipal became insolvent, cquity will relieve 12. Where a firm purchased lands, and one as for a fraud.
Ibid. of the partners was an infant, it was held 30. An ante-nuptial contract, by wihch thc hus. that he could not recover back his portion of
band agrees that the wife shall enjoy her the purchase money paid to the vendor, the property to her own sole usc, does not, in contract being binding as to the other pari,
Ibid. " Constitution 3. 5.
" Costs 1.2. CHANGE OF VENUE.
" Discontinuance 4. See Indictment 3. 4.
“ Ferry 1. 2. 3. CHARTER.
• Interest 1. 2. See Dank.
" Indictment 1.
“ Writ. Sce IVrit of Error 4. 5.
1. A parol contract for the purchase of lands, Sce Pleading 1.-3.
is void, and payment of part of the pur
chase money does not take the case out of COMPROMISE.
the statute of frauds, Allen v. Booker, 21 Keath v. Patton,
38 See Chancery 4. “ Contract 3.
2. A bank charter is a contract, and its terms
cannot be altered by the Legislature with. CONFIRMATION,
out the consent of the bank. The State v. The Tombeckbce Bank.
30 Sce Chancery 4.
3. Where a party with the full knowledge of CONSPIRACY.
the fraudulent circumstances, recognizes or
confirms a contract made in his name by an 1. A conspiracy is punishable by finc and im. agent, he cannot afterwarde set up the fraud
prisonment, as a misdemeanor. The State or want of authority in that agent. M'Gov. Cawood et al. 360 wen v. Garrard d. Morgan,
479 2. A confederacy to do an unlawful act, to the
See Agreement. injury of another, is sufficient to sustain an indictment for a conspiracy. It is not ne.
“ Chancery 2. 4. 30. 37.
56 Vendor and Purchaser 1.2. 8. 10. cessary that such an act be actually comcommitted.
1. A corporation created in another state may
sue licre. Lucas v. The Bank of Georgia, 1. The act giving summary judgment in the
147 supreme court, against securities, in writ of 2. And where a corporation sues, can the auerror bonds, is not unconstitutional. John. thority of the attorney who institutes the ston et al. v. Atwood, 225 suit be inquired into-quere?
Ibid. 2. A party may, in certain cases, by act of re-3. The existence of an incorporated bank in
cord, waive his constitutional right of trial another state may be established by a copy by jury.
Ibid. of its charter, and parol proof of its being 3. When a statute merely gives a remedy to in operation.
Ibid. enforce an existing right or obligation, it 4. A corporation may assign its effects to a
may act retrospectively. Anonymous, 228 trustee for the benefit of its creditors. Pope 4. A citizen may, by accepting a beneficial v. Brandon et al.
401 public office, waive a constitutional fran.15. And the president of the corporation may chise. The State v. Adams, 231 be the trustee.
Ibid. 5. The act of 1829, giving the power to com
See Dank. missioners to decide who shall be entitled
" Contract 2. to pre-emption rights, without appeal, is not unconstitutional. Bell et al. v Payne of
4141. In assumpsit, a judgment by default for 6. The supreme court has a general supervis- costs only, and no damages, is erroneous.
ing power over all inferior tribunals which Pickens v. Hayden g. Meriam, 10 may be erected, but only to prevent the in-|| 2. The act of 1827, authorizing executions for fringement of positive rights.
Ibid. costs in the supreme court to issue in cer. CONSTRUCTION OF STATUTE.
tain cases, applies as well to judgments ren.
dered before as to those rendered after the See Bastardy.
passage of the act. Anonymous, 228 3. The costs chargeable against the successful indorsces, without notice, to off-setts exist. party, by that act, include all except the ing against the payec.
Ibid. appearance of the opposite party, and such
CURTESY. acts as are done at his instance. Ibid. 1. An exccution cannot be quashed because 1. An ante-nuptial agreement, whereby the more costs are charged than are properly
husband relinquishes all right to the property due: the error can be corrected on a mo. of the wife, and agrees that she shall retain tion to retax.
Ibid. it to her sole use, does not bar the husband's 5. The supreme court will correct clerical mis. right of curtesy. Rochon v. Lecatt, 4.29
takes, made in the court below, and appa. 2. Nor does a decree of divorce a mensa et tho. rent on the face of the record; but at the ro, pronounced against the husband. Ibid. costs of the plaintiff in error. Wade v. 3. Nor an injunction granted in the lifetime of kelly d. Hutchison,
443 the wife, at her instance, prohibiting the 6. In trespass for assault and battery, if the husband from intermeddling with her proverdict is for five dollars damages only, full perty.
Ibid. costs cannot be given, unless the judge 4. The rule of construction on such an agreecertifies. Reid v. Gordon,
469 ment is the same in equity as at law. Ibid. 7. It does not vary the case though the jury
DAMAGES, find costs for the plaintiff.
Ibid. 8. Where an order has been made for security 1. It is error, if the judgment to be for more for costs, the court will presume the neces.
damages than are laid in the declaration. sary shewing to have been made, to entitle M Whorter v. Sayre f. Sayre,
225 the party thereto. Thompson v. Miller, 470 See Judgment 1. 9. But where the record shews only that a mo
Trover 5. tion was made to the court for security for
DEBT. costs, and that the court afterwards entered the order nunc pro tunc, on parol evidence 1. In debt, on the record of a judgment in anothat the motion had been granted; it was
ther state, nul tiel record is the general isheld to be error.
sue; but is not the only plea that may be 10. Security for costs may be required, as well pleaded. Hunt f Condry v. Mayfield, 124 in cases of appeal from justices as in other
Lucas v. The Dank of Darien, 280 Ibid. 2. Defences for want of jurisdiction in the court
where the judgment was rendered, either COUNTY COURT.
over the subject matter, or person of the de. See Jurisdiction 2.
fendant, must be specially pleaded. Ibid. Vendor and Purchaser 8.
3. And under the plea of nul tiel record, if a
proper exemplification is produced, of a CREDITOR.
judgment, valid in the state where rendered,
though not founded on personal service, See Debtor and Creditor,
judgment must be given for the plaintiff.
124 CRIMES AND MISDEMEANORS.
Hunt f. Condry v. Mayfield,
4. And under that issue, the court cannot give 1. In criminal cases, and where not affected by the interest of the sister state; the rate and
statute, the common law of England is in amount of interest must be found by a force in this state, so far as it is consistent jury.
Ibid. with the spirit of our institutions. The State 5. Debt on a guardian's bond must be in the v. Cawood et al.
name of the judge of the county court for 3. And though the common law punishment the use of the party injured. Daris v. for a conspiracy may be inapplicable, the Dickson et al.
370 offence may nevertheless be punished as a 6. It is however sufficient, if the declaration misdemeanor.
Ibid. shews for whose use the suit is brought; it See Indictment.
is not indispensable that it appear in the writ.
Ibid. COTTON RECEIPT.
7. Nor is it necessary that it appear in the de. 1. Cotton receipts, by our statute, are placed on claration, in what manner he has become the same footing, as to gotiability with interested.
lbid, inland bills of exchange. Winston v. 8. The bringing the suit is sufficient evidence Moseley,
137 that the person injured required it to be 2. And when assigned by the payee before duc, brought.
Ibid. are not subject, in the hands of innocent! 9. In such action, it is sufficient if the brcaches
are assigned in the replication only, and it8. Such deed is good against a purchaser at
See Chancery 4.
4 Fraud 2. 4.
" Lex Loci 1.
6. Trust and Trustee 2. 3. 4. 5.
" Debt 6. 14.
“ Pleading 1.
must be gross and apparent. Pope v. Bran-
gistered, if made bona fide, and for a valua-
ble consideration, is good against creditors.
Avent v. Read,
at sheriff's sale, who has notice. Ibid.
See Assignment 2.
“ Promissory Note 1.
" Vendor and Purchaser 4.
DEED OF TRUST.
ditors to the exclusion of others, and may See Trust and Trustee.
See Debt 14.
to pursue an equitable fund, if he cannot
demurring to evidence, all facts and infers
Ibid. ences which a jury could properly draw;
other cases, as to the inferences of witness.
es. Carrington v. Caller,
See Evidence VIII.
gistered, if made bona fide, and for valuable DESCRIPTO PERSONAE.
488) See Executor and Administrator 2. 4,