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85. And in such case, the impossibility of placing a party in statu quo, forms another ground for specific execution. Ibid.

86. And when such specific execution will be decreed, between the parties—it will be also decreed against all claiming under them, in privity of contract or by representation, no controlling equity interposing. 1bid.

87. When A agreed for the sale of lands with B and C, and took their notes secured by D & E, giving them a bond for title conditioned upon the payment of the notes, and B and C assigned the bond to D and E, as an indemnity to them; and subsequently, A dies, leaving D and E in possession of the lands. D, who has control of the premises, pays the last note due after suit, and takes from A's representatives and heirs a bond, conditioned to execute a title to him in a specified time, and, on the expiration of the time, brings suit on the bond-on a bill filed by A's representatives and heirs-It was held,

1. That the administrator of A was entitled to a specific execution of the contract of his intestate, and that the heirs of A, might well become parties as complainants.

II. That the bond executed by the representatives and heirs was void, for want of consideration,

III. That the matter of the bond was properly included in the bill, and that in decreeing specific execution, chancery could also decree a cancellation of the bond.

Iv. That it was a just excuse for the delay of the administrator in filing his bill, that the party holding the bond of his intestate for title, might have, under the statute, applied to the orphan's court to perfect his title.

v. That it was essential, to make the heirs of the vendor and the assignees of the vendee, parties to the cause before a decree could be rendered; but that all the amendments, for this purpose, could be made on remanding the case to the court below, on a mandate from the court. Ibid.

See Chancery-Estoppel-Trespass and Ejectment-Fraud.

VENUE.

1. After verdict, venue improperly laid in declaration, cured by reference to the margin. Barlow v. Garrow, A, R. 1.

2. In civil actions, the venue cannot be changed as to one defendant and not as to all. Vandyke v. Battle, 1 S. 218.

3. A change of venue having been ordered on the motion of a prisoner by his counsel, the judgment will not be arrested because the grounds of it are not spread on the record. State v. McLendon, 1 S. 195.

4. On change of venue, after a transmission of the original papers and a transcript of the orders in a cause to another county, a copy of the venire facias, certified by the clerk of the court from which the charge took place, cannot be received as part of the record.

State v. Williams, 2 S. 454.

5. Upon a change of venue, the court to which the case is removed is bound to presume all things regular before the change—as the existence of a good caption to the indictment—and it devolves upon the prisoner to show any fatal irregularity. So it is presumable that the record has been duly transmitted and delivered.

Ibid.

6. The act of 1819, upon the subject of a change of venue in civil and criminal cases superseded the statute of 1818-and courts have no authority to order a change of venue after the first trial term of a cause.

Innerarity v. Hitchcock, 3 S. & P. 9.

7. And when a change of venue had been improperly ordered in a civil case, and the plaintiff' made a stronger shewing against the county applied for, than defendant did against the county where the case was regularly triable. The supreme court granted a mandamus, restraining the county court to which the case was removed from exercising jurisdiction in the case, and returned it to be tried to the original jurisdiction. Ibid.

8. When an order was made at one term for a change of venue in a civil case, but which was not entered on the minutes-held, not error that at the ensuing term the court suffered the entry to be made nunc pro tunc.

Davis v. Hooper, 4 S. & P. 231.

See Criminal Law-Pleading.

VERDICT.

1. Verdict, that part of property levied on is liable to execution, is equivalent to finding the residue not liable.

Lewis, adm. v. Lewis, A. R. 95.

2. After verdict, error cannot be assigned on the allegation that the goods came into the possession of defendant by "finding or otherwise." Peters v. Johnson & Connelly, A. R. 100.

3. "We find for plaintiff $583”—sufficient verdict on general issue.

Ibid. 4. Verdict may be for more than the amount claimed on the indorsement of the writ. 1bid. 5. Verdict, "we, the jury, find for the defendant" on general issue in indebitatus assumpsit, judgment thereon in usual form sustained. Meeker v. Childress, A. R. 109.

6. In debt, defendant pleads part payment, concluding to the country and the plaintiff replies-verdict is rendered for the residue of the demand. This may be considered as an issue, and the verdict is bad, because it does not respond to it. Hawkins v. Rapier & Simpson, A. R. 113. Dade v. Adm. Buchanan, A. R. 415.

7. Verdict cures an omission in the declaration, to state in full the contingency on which a note is payable. Allen v. Dickson, A. R. 119.

8. Verdict and judgment for more than the principal and interest due; the appellate court cannot correct it. Baldwin v. Stebbins, A. R. 180.

9. We, the jury, find for the plaintiff, and assess his damage at $472 22is a sufficient entry of verdict, and negatives the plea of non assumpsit. Ibid.

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Harrison v. Cassity, A. R. 291. 10. Verdict cures omission to recite the nature of the action in declaration. Tankersley v. Selburn, A. R. 185. 11. Verdict, "that defendant owes said plaintiff the debt in the declaration mentioned, and $15 95 cents damages for its detention"-sufficiently responds to the issue. Taylor v. Rogers, A. R. 197.

12. After verdict, words charging homicide generally in slander, shall be deemed sufficient. Taylor v. Casey, A. R. 258.

13. After verdict, defect in declaration as to time of notice, in an action against an assignor-cured. Dupuy v. Gray, A. R. 357. 14. Verdict cures the want of averment in a suit, for wrongfully suing out attachment-that the suit in attachment was terminated.

Rea v. Lewis, A. R. 382.

15. After verdict-it is not error, that two special pleas were not replied to, as going to trial will be regarded as a waiver of them, there being also the plea of the general issue. Dade v. Adm. Buchanan, A. R. 415.

16. Verdict as on issue, when there was no plea-error.

Woods, adm. v. Woods, A. R. 45-74.

17. When there were two pleas, one general and one special, after verdict-not error. Marr v. Foster, 1 S. 57. 18. When a special verdict shows a right in the plaintiff, but does not define it with sufficient certainty, a venire de novo will be awarded.

Stodder v. Powell, 1 S. 287.

19. On a note, made payable at a particular place, after verdict the want of a special demand at such a place is cured, if such demand is at all necessary. Irvine, adm. v. Withers, 1 S. 234.

20. The record shows a plea in abatement by defendant and demurrer thereto, and to the same count the plea of not guilty and issue-after verdict, the plea in abatement and demurrer are to be considered as a nullity. Robertson v. Lea & wife, 1 S. 141. 21. In assumpsit, if verdict be for less than $50, and the plaintiff does not file his affidavit as required by statute, he cannot have judgment.

Howard v. Wear, A. R. 84.
Curtis v. Gray, A. R. 118.
Carter v. Dade, 1 S. 18.*

22. There being three issues and a verdict for defendant, some of the jury disagreeing as to one issue, the verdict is nevertheless sufficient to authorize a judgment for defendant. Winston v. Mosely, 2 S. 137. 23. After verdict, party proceeding to trial without an issue made not object to the want of it in the record, on error.

up canBaker v. Washington & Washington, 5 S. & P. 143. 24. After plea to the merits and verdict, the jurisdiction cannot be questioned, nor, after plea of not guilty to the whole complaint, that the matters involved were tried by a jury, instead of by the court,

Rippetoe v. Hall, 1 S. 166.

25. In an action commenced before a justice, and taken by appeal to the supreme court upon a note payable in cotton, an omission to set out the value of the cotton in the statement is cured by verdict, ascertaining the value, or at least by the statute of jeofails-and in the absence of a bill of exceptions or demurrer to evidence, to show what the evidence was, the court will presume there was sufficient to justify the verdict.

Irvin v. Nichols, 5 S. & P. 189.

26. The finding of a jury in determining mutual demands between a plaintiff and defendant, "that they find the plaintiff indebted to the defendant in the sum of two dollars and forty cents, over and above the plaintiff's demand in this behalf," is good. Pledger v. Glover, 2 P. 174.

27. This court will not aid a defective special verdict by reference to extrinsic facts which appear upon the record: a special verdict should disclose all material facts upon which it is founded, and which may be essential to authorize the entry of judgment thereon; and when the facts are not so intelligibly set forth as to show the right of recovery—it will not be aided by intendment. Lee v. Campbell's heirs, 4 P. 198.

28. A defendant cannot be permitted, after verdict, to object to the character in which plaintiff sues, as when there was a want of profert of letters of administration. Copewood v. Taylor, 7 P. 33.

29. A verdict must respond to the issue, or it will be bad and no judgment can be rendered on it-thus, in case against a post master for negligently loosing and refusing to deliver a letter &c. of plaintiff's—a verdict, that "defendant undertook and assumed &c." is erroneous.

Moody v. Reener, 7 P. 218.

30. When matters submitted to a jury can be concluded from their finding—the verdict will serve as a sufficient warrant for the judgment. Ibid.

Teppin v. Petty, 7 P. 441.

*Overruled, by Cummings v. Edmonstone, 5 P. 145.

WILL.

1. The words of a will are to be construed liberally, so as to carry int effect the intention of the testator, unless contrary to law.

Bell & wife v. Hogan, 1 S. 536.

2. In construing wills the intention of the testator must govern, and it is to be ascertained, when doubtful, from a full view of the entire instrument; all its parts are to be reconciled if possible, and if not, the latter provisions are to govern. Moore, Ex'r. v. Dudley & wife, 2 S. 170. 3. To constitute a mere nun-cupative will, the words spoken must have legal certainty, and be spoken in extremis. Sykes v. Sykes et al. 2 S. 364. 4. A will of personal estate is not void, for want of witnesses.

McGrew v. McGrew, 1 S. & P. 30.

5. The orphans' court has peculiar and original jurisdiction over the subject of the probate of wills, and its decree in relation to the establishment of a will must be taken as properly entered upon legal testimony, unless the contrary appears. Ibid.

6. When it appeared that the deceased applied to an attorney to prepare a will, under certain instructions (by which he designed particularly to prode for a dependent sister,) and the will being prepared was exhibited to him; and in the presence of an attorney and a witness he made several unimportant alterations, and seemed satisfied with the draft thus altered, and gave the same to the attorney to be copied; and the said draft, after being copied, was handed again to the deceased to be executed, and he received it, saying he would think of and examine it—and, after his death, the said copy unaltered and proven to be the exact copy of the draft, so altered by the applicant was found in his possession-held, to have been improperly admitted to probate. Malone v. Harper, 2 S. &. P. 454.

7. When the testator, after expressing an intention of disposing of all his earthly estate, recited that his just debts should be paid, previous to any distribution of his estate among his representatives-held, that the will was entitled to a construction, charging the debts of the testator upon the realty. Darrington et al. v. Borland, 2 P. 10. 8. Under our statute, a certified copy of a will and probate, is evidence both of the validity of the will and of the correctness of the probate, while the decree of the orphans' court remains unreversed.

Ibid.

9. When copy of a will, which had been lost or destroyed, is submitted for probate with an affidavit of the executor, of the destruction of the original-proof will be admitted by the subscribing witnesses, as to its genuineness and contents, as also of the state of mind of the testator. If will of realty and all the witnesses be alive and within the jurisdiction of the court, it would seem that two of them would not be sufficient.

Apperson v. Cottrel, 3 P. 51.

10. A will, properly admitted to probate, cannot be rejected as evidence in a suit between an Indian and a white man, merely because the will had been proved by the testimony of an Indian witness-it appearing that at the time the will was proved, all who were entitled to objections against the will were Indians. Carroll v. Pathkiller, 3 P. 279.

See County and Orphans' Court-Devise, Legacy, and Bequest.

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