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per averments, the bond might be declared on. Moore et al. v. Chapman, 466 7. A constable levied nine executions on a negro, and took nine bonds payable to the plaintiff, for the delivery of the property; the bonds being forfeited, the plaintiff brought an action of debt, and declared in one count on the nine bonds: on demurrer, the proceedings were held to be proper. Sugg v. Burgess & Davis, 509 8. Such bonds may be good as common law bonds, though not taken strictly as the statute requires. Ibid. See Debt 5.

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5.

1. That B. on the original note, was only entitled to interest at five per cent a month till its maturity, and at eight per cent per annum, afterwards.

2. That the extension of time given released the security.

3. That the notes of E. for $6,600 were not void for usury.

4. That E. being a security, was entitled to relief in chancery, against all but the balance of the original debt, computing interest at 5 per cent a month till due, and 8 per cent per annum afterwards. Ellis v. Bibb, 63 In what cases chancery has jurisdiction to grant writs of ne exeat. See Lucas v. Hickman,

111

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CHANCERY & CHANCERY PRACTICE 7. 1. Chancery has jurisdiction to relieve a sheriff

where judgment has been obtained against
him, for failing to return an execution three
days before court; a sufficient excuse being
shewn for such failure, and also for the fail-
ure to make defence at law. Roberts &
Battle v. Henry,

42

2. In equity, a purchase by an administrator, at his own sale by auction, where no unfair. ness appears, is prima facie valid, and is not void per se. Brannan et al v. Oliver, 47 3. Nor will such a sale made in South Carolina be held void here, though made without an order of court, the laws of South Carolina not being produced to show such order to be necessary. Ibid. 4. In July, 1819, P. as principal, with E. as security, gave their note, payable in six months, to B. for $3000, to bear interest at five per cent a month. In March, 1821, B. without the consent of E. at the time, entered into a new contract with P. who sccured the payment of $3,500 in one year, and $4,000 in two years, by a deed of trust on twelve negroes, and B. agreed to remit the remainder on said sums being paid: P. absconded with the negroes. In January, 1822, E. under the influence of alarm and mistake as to his legal rights, consented to give B. his notes for $6,600,and received an assignment of the original note, and deed of trust; both believing that five per cent a month was recoverable on the original note, till paid. E. on these notes,paid $4,400, and was notified by his principal, not to pay more than was lawfully due on the original note, at his peril. It was held,

8.

9.

et al.

163

Chancery will restrain a party from keeping a public bridge without authority, and free of toll, whereby is destroyed a ferry established by law at the same place. Gates v. M'Daniel & Spurlin,

211 It seems that a party may be joined in chancery for the purposes of discovery merely. Cuto v. Easley, 214 10. An infant defendant in chancery, having been admitted to make full defence by his guardian, the revising court will consider the sanction given to such mode of defence, as equivalent to an appointment of guardian ad litem.

Ibid. 11. It is no error that a decree does not fix a

time within which an infant may impeach it, as a time is given by statute. Ibid. 12. A voluntary settlement in favor of children, under certain circumstances, will be set aside as fraudulent, as against an existing creditor.

Ibid. 13. The answer of a party in chancery is evidence against him, and also so much of the bill as is necessary to explain the answer. M'Gowen & wife v. Young,

14.

15.

276

Though a party be injoined from removing property out of the State, yet he may maintain trover against his adversary, for his conversion.

Ibid.

After judgment at law here, on a record from another State, a want of jurisdiction of the sister State over the person of the defendant, is no ground for relief in equity;

such defence being available by a plea at law. Lucas v. The Bank of Darien, 280 Miller v. Pennington,

equity, bar the right of the husband to cour. tesy. Rochon v. Lecatt, 429 399 31. Nor does a decree of divorce a mensa et thoro, Ibid. 32. Nor an injunction obtained by the wife du. ring her lifetime, prohibiting the husband from intermeddling with her property. Ibid 33. A security in an injunction bond, filed his bill for relief against a judgment rendered against him on the bond: held that he could not go into the merits of the previous decree rendered against his principal, nor of the original judgment at law which had been injoined; no fraud being alleged in the rendition of the decree. M'Broom v. Somerville et al

Bigger adm'x v. Hutchings & Smith adm'rs., 445 16. Equity will not relieve against a judgment at law, for mere technical defects in the proceedings. Lucas v. Bank of Darien, 280 17. All the parties in interest should be joined in an equity proceeding, but to this rule there are exceptions. Ibid. 18. Those only against whom process is prayed, are to be considered as defendants in a chancery suit. Ibid. 19. A bill for discovery must state the matter sought to be discovered, shew that it is material, and state the nature of the defence at law, and not deal in vague inquiries. Ibid. 20. Affirmative allegations in an answer, not responsive to the bill, must be proved at the trial. Ibid. 21. But where the answer is not traversed, it

is to be taken as true. Semble, Ibid. 22. Chancery will lend its aid to a creditor, to pursue an equitable fund for the satisfaction of his debt, if he cannot obtain pay-l ment at law. Lucas et. al. v. Atwood et. al., 378. 23. And when he has subjected such fund by reason of superior diligence, he may retain it, and it will not be subject to general distribution. Ibid. 24. The creditor who first applies to chancery for the benefit of an equitable fund, is entitled to the preference. Ibid. 25. Courts of equity regard rather matters of substance in determining the rights of parties, than mere technicalities. Ibid. 26. The supreme court has a general supervi. sing power over all inferior tribunals, to prevent, by injunction, the violation of any positive right; but cannot control the decision of the commissioners, under the act of 1829, in relation to pre-emption rights. Bell et al. v. Payne & Williams, 414

27. Where a defence at law would be doubtful or difficult, equity can take jurisdiction.) Teague v. Russell & Moore,

420

515

34. Under some circumstances, the sickness and inability of counsel to attend court may entitle a party to relief in equity: but if there are counsel in attendance who are unprepared, a motion for a continuance or new trial at law is the proper remedy.

Ibid. 35. A court of equity cannot, any more than a court of law, compel a party to relinquish a security he has fairly acquired, or change it for another; therefore, equity cannot substitute a person as defendant in a judgment in place of another. Ibid.

36.

37.

Where a bill is dismissed for want of prosecution, it operates as a discontinuance, and does not prevent the bringing of a new bill. Ibid. Where money has been paid under a contract which has been rescinded or alleged to be fraudulent, an action at law lies to recover it back; and in the absence of special allegations of failure of proof, or other matter of equitable relief, chancery has no ju risdiction, Sadler et al. v. Robinson's heirs. 520

38. Chancery cannot arbitrarily annul or re ́scind a contract, to administer justice, but is bound by rules and precedents. Ibid. 39. A party cannot claim a rescission of a contract, for fraud, after entering into new stipulations concerning it, with a full knowl edge of the fraudulent circumstances. 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 shews no excuse for the failure.

Ibid.

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wise determined, the purchase money can. not be reclaimed.

Ibid.

Long acquiescence in a transaction, without objection, will create a presumption of a waiver of a fraud, and a recognition of an act done by another.

Ibid. 42. Where a firm purchased lands, and one of the partners was an infant, it was held that he could not recover back his portion of the purchase money paid to the vendor, the contract being binding as to the other part.

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1. A parol contract for the purchase of lands, is void, and payment of part of the purchase money does not take the case out of the statute of frauds, Allen v. Booker, 21 Keath v. Patton,

38 2. A bank charter is a contract, and its terms cannot be altered by the Legislature without the consent of the bank. The State v. The Tombeckbee Bank.

30 3. Where a party with the full knowledge of the fraudulent circumstances, recognizes or confirms a contract made in his name by an agent, he cannot afterwards set up the fraud or want of authority in that agent. M'Gowen v. Garrard & Morgan, 479 See Agreement.

66

Chancery 2. 4. 30. 37.

"Vendor and Purchaser 1. 2. 8. 10. CORPORATION.

1. A corporation created in another state may sue here. Lucas v. The Bank of Georgia,

1. The act giving summary judgment in the supreme court, against securities, in writ of 2. error bonds, is not unconstitutional. Johnston et al. v. Atwood,

225

3.

2. A party may, in certain cases, by act of re-
cord, waive his constitutional right of trial
by jury.
Ibid.
3. When a statute merely gives a remedy to
enforce an existing right or obligation, it 4.
may act retrospectively. Anonymous, 228
4. A citizen may, by accepting a beneficial
public office, waive a constitutional fran. 5.
chise. The State v. Adams,
231

5. The act of 1829, giving the power to com-
missioners to decide who shall be entitled
to pre-emption rights, without appeal, is not
unconstitutional. Bell et al. v Payne &
Williams,

414 1.

6. The supreme court has a general supervis-
ing power over all inferior tribunals which
may be erected, but only to prevent the in- 2.
fringement of positive rights.
Ibid.
CONSTRUCTION OF STATUTE.
See Bastardy.

147

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Ibid.

3. The costs chargeable against the successful
party, by that act, include all except the
appearance of the opposite party, and such
acts as are done at his instance.
4. An execution cannot be quashed because 1.
more costs are charged than are properly
due: the error can be corrected on a mo-
tion to relax.
Ibid.
5. The supreme court will correct clerical mis-
takes, made in the court below, and appa. 2.
rent on the face of the record; but at the
costs of the plaintiff in error. Wade v.
Kelly & Hutchison,

443

3.

6. In trespass for assault and battery, if the verdict is for five dollars damages only, full costs cannot be given, unless the judge 4. certifics. Reid v. Gordon, 469

7. It does not vary the case though the jury find costs for the plaintiff.

Ibid.

8. Where an order has been made for security 1.
for costs, the court will presume the neces-
sary shewing to have been made, to entitle
the party thereto. Thompson v. Miller, 470
9. But where the record shews only that a mo-
tion was made to the court for security for
costs, and that the court afterwards entered]
the order nunc pro tunc, on parol evidence
that the motion had been granted; it was
held to be error.
Ibid.

10. Security for costs may be required, as well
in cases of appeal from justices as in other

cases.

COUNTY COURT.

See Jurisdiction 2.

46 Vendor and Purchaser 8.

CREDITOR.

See Debtor and Creditor.

1.

Ibid. 2.

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In debt, on the record of a judgment in another state, nul tiel record is the general is. sue; but is not the only plea that may be pleaded. Hunt & Condry v. Mayfield, 124 Lucas v. The Bank of Darien, 280 Defences for want of jurisdiction in the court where the judgment was rendered, either over the subject matter, or person of the defendant, must be specially pleaded. Ibid. 3. And under the plea of nul tiel record, if a proper exemplification is produced, of a judgment, valid in the state where rendered, though not founded on personal service, judgment must be given for the plaintiff. 124 Hunt & Condry v. Mayfield,

4.

5.

CRIMES AND MISDEMEANORS. 1. In criminal cases, and where not affected by statute, the common law of England is in force in this state, so far as it is consistent with the spirit of our institutions. The State v. Cawood et al. 3. And though the common law punishment for a conspiracy may be inapplicable, the offence may nevertheless be punished as a 6. misdemeanor.

See Indictment.

COTTON RECEIPT.

360

Ibid.

7.

1. Cotton receipts, by our statute, are placed on
the same footing, as to negotiability with
inland bills of exchange. Winston v. 8.
Moseley,
137

2. And when assigned by the payee before due,
are not subject, in the hands of innocent 9.

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Ibid.
8. Such deed is good against a purchaser at
sheriff's sale, who has notice.

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See Chancery 4.
"Fraud 2. 4.
"Lex Loci 1.
"Release.

"Trust and Trustee 2. 3. 4. 5.

DECLARATION.

See Damages.
"Debt 6. 14.
"Pleading I.

DECREE.

See Chancery.

DEED.

Inadequacy of price, to invalidate a deed,
must be gross and apparent. Pope v..
don et al.

Bran-
401

A conveyance of lands, though not duly re-
gistered, if made bona fide, and for a valua-
ble consideration, is good against creditors.
Avent v. Read,

488

Such deed is also good against a purchaser
at sheriff's sale, who has notice.

See Assignment 2.

Ibid.

"Executors and Administrators 4.
Promissory Note 1.

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Vendor and Purchaser 4.

DEED OF TRUST.

See Trust and Trustee.

DELIVERY BOND.

See Debt 14.

DEMAND.

See Pleading I.—2. II.—8.

DEMURRER TO EVIDENCE.

The court must take as true, against a party
demurring to evidence, all facts and infer-
ences which a jury could properly draw;
yet the same rules of evidence govern as in
other cases, as to the inferences of witness-
175
es. Carrington v. Caller,

DEPOSITION.

See Evidence VIII.

DESCRIPTO PERSONAE.

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