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99. On a bill for injunction, a decree for defendant can direct execution to issue only against the defendant in execution and his sureties, but not against another party to the contract.
Harris, et al, v. Carter, Adm. 3 S. 233. 100. Notwithstanding a motion may be made to dissolve on bill and answer alone, if the court be satisfied that the case as presented by bill, does not contain sufficient equity to authorize relief, then the injunction may be dissolved and the bill dismissed, without consulting the complainant..
Williams, et al, v. Berry, 3 S. & P. 284. 101. A decree, perpetually enjoining a judgment at law, will be reversed and the bill dismissed, it appearing that the defendant is not regula rly in Court, by publication and judgment pro confesso. And it is not enough, that an order for publication has been had: proof of the publication must be made.
Moore v. Wright, 4 S. & P. 84. 102. A bill for an injunction, not filed as an original bill—the order upon which has not been complied with—cannot be considered a record of court, so as of itself to become evidence in a suit in Chancery, between same parties.
Driver v. Fortner, 5, P. 9. 103. When a portion of a judgment enjoined in equity, remains due after 'off-setting complainants demand, the injunction will only extend to the sum covered by the off-set, and the plaintiff at law will be permitted to proceed with his execution, for the remainder and costs of suit.
French v. Garner, 7 P.549. 104. When the penalty of an injunction bond was for “six hundred and sixty-six and two thirds cents”-enjoining suiton a note, for three hundred and thirty-three and one-third dollars.” Held that these would not be regarded as the same amounts.
Hammond, et al, v. Cobb, 2 S. & P.383. 105. Judgment on an injunction bond, enjoining a judgment, may be entered for penalty to be discharged, by the sum assessed by the jury or for amount of damages.
Moore v. Horton, 1 P. 115. 106. An injunction bond, conditioned to be in force; if the injunction be dissolved, is valid.
IX. Bill for Discovery. 107. A bill for discovery must state the matter sought to be discovered; show that it is material and state the nature of the defence at law, and not deal in vague inquiries.
Lucas v. Bank Darien, 2 S. 280. 108. Nor will a discovery be compelled after judgment, when no sufficient reason is shown, why it was not applied for before the trial.
Moore v. Deul, 3 S. 155. 109. Bill for discovery when the facts are supposed to be within the knowledge of the opposite party cannot be entertained after judgment, unless an excuse be shown, why not such bill was not exhibited earlier.
McGrew v. Tombecbee Bank, 5, P. 547.
X. Relief in the Sale and Purchase of Real Estate; and as to the Com
pletion of Title in Devisee. 110. Vendee entitled to rescission of contract, where vendor made fraudulent representations at the time of sale.
Harris, et al, v. Carter, Adm. 3 S. 233.
111. Vendee will be protected from the payment of the purchase money, where the vendor cannot effect a title on account of his insolvency, until such disability is removed.
Smith v. Peters, 1 S. & P. 107. 112. And it would seem that equity in such case, would relieve a party even when the note had passed into the hands of an assignee. Ibid.
113. Chancery will compel an executor to pay the balance of purchasemoney due on real estate, devised in order to perfect the title of devisee, a child of testator, when this would only equal the shåre of the other children, under the will.
Green, et ux. v. Moore, Exr. I S. & P. 212. 114. When an agent had contracted for the sale of real estate, and
put the vendee into possession, who remained in possession for several years; and, afterwards, the agent procured a title to himself and the property was sold by the sheriff as the estate of the agent-Chancery would presume the payment to the agent, of the purchase-money, and compel him to execute a title, and would order the title of the sheriff to be cancelled.
Toucey v. Moore, 4 S. & P. 347. 115. When a vendee has sold to a second vendee, but no conveyance has been made to him nor purchase-money paid; Chancery will arrest the second sale and enforce the lien of the original vendor; but, when the title deeds and the possession have been delivered to the second bona fide purchaser, without notice, and he makes advances on said purchase, Chancery will decree a sale of lands; and the proceeds, after first discharging the amount advanced by the second vendee, will be applied to the payment of the amount due the original vendor.
Dupphey v. Frenaye, 5 S. & P. 216. 116. Where vendee of real estate, takes a bond conditioned for title at a future day, he may, after breach of the condition, elect to proceed at law for damages, or apply to equity for specific relief.
Haynes v. Farley, ex'r Bell, 4, P. 528.
XI. Specific Performance.
117. When there has been a part payment of the purchase money accompanied with possession by the vendee, Chancery would enforce a specific performance of the parol contract. Meredith v. Naish, 3 S. 207.
118. It is an appropriate office for Chancery to enforce specific agreements for conveyance of realty.
Morgun, et al, v. Morgan, et al, 3 S. 383. 119. When A claims of B specific performance of a sale of lands—the judgment creditors of B, may be made parties defendant. And it is no objection, in cases of great litigation, that complainants right, which is sought to be quieted, has not been established at law; much less can such an objection avail, when the right is one peculiarly proper for chancery jurisdiction.
Ibid. 120. Chancery will not lend its aid to enforce the specific performance of parol contracts for sale of lands, where the terms of the agreement are uncertain and contradictory, or where the agreement proved, does not correspond with the allegations of the bill. Goodwin v. Lyon, 4 P. 297. 121, Time
may become an essential ingredient in a contract--and where it appears, complainant has failed to execute his part of the contract at the day, without excuse on his part, or the assent of the other party to the delay. In such case Chancery would not relieve. Hays, et al, v. Hall, 4 P.374.
122. Where vendee takes possession, under a parol contract, and makes valuable improvements--though the specific execution may not be enforced,
either because agreement is imperfect, or its precise terms cannot appearChancery will yet decree a pecuniary compensation, equivalent to the improvements made by vendee.
Ibid. 123. Where, on a contract for the sale of lands, either party has performed a valuable part of the agreement, and is in no default as to the residue; he is entitled in equity, to a specific execution.
Ibid. 124. And in such case, the impossibility of placing a party in statu quo, forms another ground for specific execution.
Ibid. 125. And when such specific execution will be decreed, between the parties—it will be also decreed against all claiming under him, in privity of contract or by representation, no controlling equity interposing. 1bid.
126. When A agreed for the sale of lands with B and C, and took their notes secured by D and E, (giving them a bond for title conditioned upon the payment of the notes. And B 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.
11. 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 intestator 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 amendment, for this purpose, could be made on remanding the case to the court below, on a mandate from the court. Ibid.
XII. Bill of Revieu-Bill of Revivor — Bill of Peace. 127. Bill of review must be for error in point of law, apparent on the face of the decree, or for some new matter of fact relevant to the case and discovered since publication passed, and which could not have been discovered by reasonable diligence before. Caller, per pro umi, v. Shields, Malone & Lyon, 2 S. & P: 417. I Bradshaw v. Garrett, et ux. 1 P.47.
} 128. It will not be sustained on the ground of discovery of new parol proof, relating to a fact particularly in issue before the former hearing. But when the newly discovered evidence is in writing or of record, a review will be granted, notwithstanding the fact to which such evidence alludes, may have been in issue before.
ibid. 129. The errors in law against which relief can be had, by bill of review, must be such as arise from obvious mistake or inadvertance, apparent on the face of the decree, (or if the facts are not therein stated) at least of record.
Ibid. 130. And when the facts are stated in the decree, a party will not be permitted to show, that the matters decreed on, are not at variance with other proof in the cause.
131. The English rule of Chancery, requiring that the new matter to authorize a bill, should have come to light after the decree, has been relaxed; it is sufficient, if it be discovered after publication.
Ibid. 132. Bill of review upon matters of fact, must be on special leave of the court, and upon oath as to the new matter discovered.
Ibid. 133. It will not be granted, on vague and uncertain allegations, when it appeared that the party applying for it, had failed to avail himself of an appeal; and, also, when by the terms of the decree, he (being an infant) had six months after arriving of age to contest the decree sought to be reversed.
- Ibid. 134. Where the decree does not appear erroneous on its face, there must be new and material matter, which has arisen or been discovered at too late a period to have been made available by proper diligence, to entitle a party to relief. But when the directions of a former decree have not been complied with according to the first interpretation of their object and intent, or a material matter might have been adjusted by the former decree, and was supposed to have been done, but by the evasion or artifice of the party complained of, has been omitted or defeated. These are proper subjects of review, and Chancery will interfere.
Williams v. Murphy, 1 P. 40. 135. As a general rule, no review ought to be granted, of a fact previously in issue, on account of newly discovered matter, unless the evidence be in writing or on record, and does not consist in swearing alone. While this rule will be applied to the situation of parties, it must appear that all diligence has been used to avail themselves of new matter, during the pendency of the writ, which they desire to review.
Bradshaw v. Garrett et ux, 1 P. 47. 136. A bill of revivor or other bill, ancillary to the main cause, before a Court of Chancery, cannot be dismissed of itself under the 4th rule, regulating Chancery practice.
Draughan v. French, 4 P. 352. 137. In a bill of peace; privity or connection between the defendants is not necessary.
Morgan, et al, v. Morgan, et al, 3 S. 383. See Costs. Dower. Debtor and Creditor. Guardian und Ward. Mort
gagor and Mortgagee. Partnership and Joint Owners. Principal and Security. Trusts and Trustees. Vendor und Vendee.
CHARGE OF THE COURT.
1. A charge to the jury must apply to an issue, to be the subject of a writ of error, and a refusal to charge is not error, unless it appear that the charge asked for arose from the evidence before the jury.
Campbell v. Green, A. R. 27.) Wilson v. Jackson, A. R. 399.
Hughes v. Parker, 1 P. 144. ) 2. It is error to charge the jury that from the evidence the plaintiff cannot recover.
Dade, ad mr, v. Buchanan, A. R. 415. 3. A charge to the jury “that if they believe the evidence offered by plaintiff sustained his declaration,” is not improper.
Pope, ad mr. v. Robinson, 1 S. 415. 4. The court may lawfully sum up the evidence to the jury and instruct them hypothetically. Brandon v. Snows f. Cunningham, 2 S. 255.
5. It is in the power of a party applying for a charge to have it specifically applied to every point arising in the evidence; and when the charge is asked in such general manner as that when given, it is not as explicit as the testimony would authorize, it is not the ground of reversal that the charge was too general.
Hunt & Norris v. Toulmin, 1 S. & P. 178. 6. It was held not to be error that counsel, with the assent of the court, had a jury called back, and an erroneous charge in favor of such counsel retracted.
Świth v. Maxwell, 1 S. & P. 221. 7. Refusal of the court to give a charge to which the party in point of law is entitled, is error, though the court subsequently gives a direction which by inference might lead to the extent of the charge required.
Rives & Mather v. McLosky & Hagan, 5 S. & P. 330. 8. If a party is not entitled to a charge, as requested, the court may refuse it in toto, and is not bound to modify or reform it.
Ibid. 9. When testimony has been rejected, and the court charged as though such testimony had been admitted, it was held that such charge was abstract, and not the subject of enquiry on writ of error.
Ogburn v. Ogburn, 3 P. 127. 10. Where the instructions asked, were not sought in reference to a particular party to whom applicable, considered as irrelevant, and that the court was not bound to respond to them.
Fortner v. Flunugan & Driver, 3 P. 257. 11. An inferior court will not be held to have committed error in refusing a charge, no ground to sustain which has been laid by the evidence.
Chamberlain v. Darrington, 4 P. 515. 12. When there are several counts and the court is requested to give a general charge; such charge, if given, will be applied in error to any count which will sustain it. When the court is requested to confine its charge to some one particular count, if the charge is not proper in reference to such count, it might be error.
Derrick v. Morris, 5 P. 111. 13. Where evidence is given applicable to one count, though not to another, a refusal to charge the jury as in case of non suit, is no error.
Madden v. Blythe, 7 P. 258. 14. When the facts are admitted by defendant, and the charge of the court independently of their existence is not controverted, the defendant cannot alledge afterwards that the charge of the court determined the facts, and thus withheld them from the jury.
1. When debt is under $50, but exceeds that amount adding the interest, the circuit court has jurisdiction of the demand.
Hogan v. Odam f. Odam, 5 S. 58. 2. Has exclusive jurisdiction as to sale of real property, levied on by execution from justice of the peace.
Moody, 3 S. 314. 3. Under the statute of 1819, cannot legally dismiss a clerk from office unless the charges be exhibited against him, and the facts be found by a jury.
Callaghan v. State, 2 S. & P. 379. 5. Such judgment may be inquired into on writ of error, and the proceedings properly prosecuted in the name of the State.