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must show that he has been in no default, unless he can account for it by special circumstances
Hutcheson v. The heirs of MeNutt, 10.

Where a vendee files a bill for specific performance and it appears that the vendor has sold the
same land to a subsequent bona fide purchaser, for a valuable consideration without notice,
equity will retain 'the cause and under the general prayer for relief, will decree the value
of the land to the complainant. Rees v. Smith, 58.

Where a party seeking a specific performance insists upon an unconscionable advantage, the
court will dismiss his bill. Townsend v. Alexander, 238.

Where in an entire contract for the sale of five quarter sections of land, a separate bond is given
for the conveyance of two, the purchaser cannot have a specific performance, without perform-
ing the entire contract on his part. Tierman v. Beam, et al., 406.

A specific performance will be decreed where the vendee tenders the whole purchase money at
the time the second installment falls due, though he failed to pay the first installment at the
proper time. Gibbs v. Champion, 599.

Where a slave is purchased under a promise to emancipate him, such promise may be enforced
in equity. Tom v. Desha, et al., 828.

II. JURISDICTION.

An objection to the jurisdiction comes too late, after a defendant has answered and contested
the merits. Rees v. Smith, 58.

A bill in equity to foreclose the equity of redemption will be sustained notwithstanding the stat-
utory remedy by sci. fa. but the mortgaged premises must be appraised, and the court will direct a
sale, and not decree a foreclosure, if two thirds of the valuation amounts to more than the
debt, and such sales will be directed on the same principles as upon executions at law. Anon-
ymous, 109.

Where courts of law and equity have concurrent jurisdiction, and a party electing to pursue his
remedy in one,fails, he shall not be permitted as a general rule, to resort to the other. Curtis,
et al. v. Cisna's admr. 186. S. P. Buell v. Cross, 813.

A court of equity never interferes to relieve against a contract, made in good faith, where both
parties are mistaken as to the value. Hunter v. Gowdy, et al., 196.

The statutory provision, that a decree for a deed shall operate as a conveyance does not divest
the court of the power, to enforce the actual execution of a deed by attachment for contempt,
Randall v. Pryor, 845.

III. CHANCERY PRACTICE.

Upon a Bill to foreclose the equity of Redemption, the Court will order the premises to be ap-
praised and will direct a sale, and not decree a foreclose, if two thirds of the valuation a-
mounts to more than the debt, and such sale will be directed on the same principles as upon
executions at Law. Anonymous, 109.

A defendant is not permitted to answer without affidavit of merits, after demurrer overruled.
Hanley v. Hunt, et al. 122.

Where lands are decreed by a Court of Chancery to be sold absolutely they must be valued as
upon executions at Law. Wiles, et al. v. Baylor, 217.

Where the answer denies all the material averments in the Bill, the Bill will be dismissed, the
testimony being vague and contradictory. Lacy v. Garrard, 231.

Where a party seeking a specific performance, insists upon an unconscionable advantage, the
Court will dismiss his bill. Townsend v. Alexander, 238.

Where a cause is certified to the Sumpreme Court, from the Court of Common Pleas, on ac-
count of the interest of the Judges, the facts upon which the interest arises, must be set out
in the certificate. Knaggs v. Conant, 243.

The time for performing a decree in Chancery may be enlarged. Baird v. Shephard, 354.
In a Bill of review, the original bill, answers, exhibits and depositions, are open for examination,
where the decree contains no statement of the facts found or principles decided. Persons in-
terested in the subject, though not parties to the original Bill may be made parties to the bill
of review, and where the decree is reversed, the bill of review as to such new parties, will be
retained as a supplemental bill. Ludlow's Heirs v. Kidd's Heirs, 405.

It is a general rule, that upon a bill to carry a decree into execution, the Court will not unless
under special circumstances, examine the justice of the decision, or the law of the case. Este
et al. v. Strong et al. 418.

Matters not put in issue by the pleadings cannot be investigated; but allegations made by one
party and not admitted or denied by the other, are in issue and may be proved. McArthur
v. Phoebus et al. 426.

The complainant cannot travel out of his Bill to make a ground of relief. Bank of U. States
v. Shults, 470.

An inveterate practice for a series of years will not be departed from. Brown v. Farron. 508.
Where the administrators of an intestate deny by their answer the allegations in the bill, the al-
legations must be proved. Wilson v. Delerack, et al. 582.

The Governor and Judges of the Territory in adopting the laws of other States, did not necessa-
rily adopt the Practice of the Courts of those States, under such laws. Lessee of Gray v.
Askew, 630.

When a creditor summons the debtors of his debtor to an excessive amount, the debtor may ap
ply to the Court to compel the complainant to select whom he will hold, and in default of
making such selection, the Court will direct who shall be holden, and discharge the residue.
If no such application be made all the defendants remain bound. Gilmore v. Mi. Bank,
et al. 647.

Where a party is in Court when an order is made affecting his interest, and he makes no ob-
jection, he cannot of right, be heard i pon a motion to rescind such order. Fouble v. Walker,

713.

Upon a writ of error, to a decree in Chancery, nothing is examinable, but the bill, answer, and
exhibits made part of them, the decree itself, and such matter as may be made part of the case
by a bill of exceptions; the Court do not re-hear the cause upon the merits. Waters' et al.
v. Lemmon, 781.

A defendant cannot set up one defence in his answer, and upon the final hearing set up another;
his allegations and proof must correspond. Paine v. French et al. 807.

A party who takes a bill of exceptions must distiuctly point out wherein he may have been pre-
judiced by the opinion excepted to. McDougal v. Flemming, 838.

The Judges of the Common Pleas are not disqualified by interest to try a cause, where the Com-
missioners of the connty are parties, and money the subject of controversy. The Commission-
ers of Clermont v. Lytle, 581.

IV. INJUNCTION.

A sale upon execution may be stayed by Injunction. Manley v. Hunt et al. 122.
Upon a case made which comes exclusively within the jurisdiction of a Court of Chancery, and
where a Court of law could give no relief, chancery will interfere to enjoin or relieve against a
judgment at Law; but where Courts of law and equity have concurrent jurisdiction, and a
party electing to pursue his remedy in one fails, he shall not be permitted as a general rule, to
resort to the other. Curtis et al. v. Cisna's Admr, 186.

A Court of equity may enjoin a sale upon execution, when no title would pass to the purchaser.
Bank U. States v. Shults. 441,

An injunction against a Judgment at Law does not operate as a release of errors. Gano v.
While et al. 456.

A second injunction in the same cause upon new matter, cannot be allowed in the matter subsis-
ted where the first bill was filed. Bank U. States v. Schultz, 470.

An injunction may be allowed to stay a sale for taxes on City lots, assessed by the City Counci
of Cincinnati. Burnet v. The Corporation of Cincinnati, 476.

A bill in chancery to obtain a perpetual injunction against collecting a tax assessed in the ordina-
ry way, and unaccompanied by any circumstances of peculiar injury, cannot be sustained,
even if the law authorising the tax be unconstitutional. Mcoy v. The Corporation of Chil-
licothe, 609.

Where an injunction is allowed to stay execution levied on chattels, the sheriff is bound to return
the chattels to the owner. Lessee of Bisbee v. Hall, 627.

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A final decree is no notice to a subsequent purchaser. A decree that the respondent, by a certain
day, shall assign a certificate of certain lands to the complainant, provided that the decree
should not be operative complainant did not pay the respondents a certain sum of money
by a given day, and provided before that day, the respondents should assign or tender an as-
signment of the certificate; is a final decree. Turner v. Crebill, et al., 167.

A court of chancery does not act as a court of errors to examine or reverse judgments at law.
Curtis, et al. v. Cisna's admr. 186. S. P. Stiver v. Stiver, 456. Buell v. Cross, 8'3.
A court of equity will carry into effect the intention of the parties, whereby fraud or mistake,
such intention is not embodied in a written agreement. When there is no court of equity,
and the parties do that which act of chancery would direct to be done, a court of law will
sustain what has thus been done. Hunt, et al. v. Freeman, 212..

Where an administrator makes a void sale of the lands of the intestate, and receives the pur-
chase money, and afterwards the heirs recover the land, equity will not compel them to refund
the purchase money; but the taxes paid by the purchaser shall be repaid with the interest and
expenses of making the payment, when the heirs come into equity, to disencumber the title,
Nowler, et al. v, Coit, 220.

He who seeks equity must do equity. A party seeking to set up a contract different from the
written one, upon which a judginent has been had at law, must show an offer to perform the
contract he claims to establish, at the time it ought to have been performed, also a readiness
still to perform. Edwards v. Morris, 85.

A contract for the purchase of real estate will not be rescinded upon state objections to the ven-
dor's title, the ven tee remaining in undisturbed possession, Ib.

A court of equity will aid a security in subjecting the estate of the principal to the payment of
the debt, without first paying the money, Stump v. Rogers, et al. 225,

Where the answer denies all the material averments in the hill, the bill will be dismissed, the
testimony being vague and contradictory. Lacy v. Garard, 231.

Equity will not interfere where a good defence might have been made at law. Lacy v. Garard,
231.

Where a party neglects to make a proper defence at law equity will not relieve. Wood, et al.
v. Archer, 240. S. P. McCarty v. Burrows, 239. Duckwall v. Zimmerman, 241.
Where a complainant in his bill calls upon the respondent to answer to the consideration of a
deed, such answer is evidence. Steele, et al. v. Worthington, 312.

Where parties understand their rights, and make an agreement to adjust a question of property
between them. in a particular manner, a very strong case of imposition must be made out to
induce a court of equity to interfere. Ib.

The time for the performance of a decree in chancery may be enlarged. Baird v. Shephard,
354.

Equity will not grant a new trial where the party seeking it has been guilty of neglect. Dor-
flinger v. Coit, 375.

Where, upon an equitable adjustment of partnership transactions, two parties are in equity,
creditors of a third partner, equity will set off such cre fits against a joint debt, due from the
same two parties to the third. Sarchet v. Surchet, 379.

The doctrine of compensation, abatement and modification is this. The complainant asks for
a decree, and it may be granted to him upon terms: He may be told that he shall take less or
give more, and to do so or not, is at his own option. But the court cannot tell the defendant,
that he shall take less or give more, because to tell him so gives him no option. Courcier, et
al. v. Graham, 150.

Chancery may aid a deed, rendered inoperative by accident or mistake, when the grantor had
power to convey, but it cannot generally supply a want of power: Thus a conveyance made
by executors under a defective order of court, cannot be aided in equity, Tierman v. Beam
et al. 406.

A decree in equity against a guardian, touching the real estate of his ward, does not affect the
ward, unless he be a party to the original suit. Este, et al. v. Strong, et al. 418.

An agreement, though made upon a good consideration, may be relieved against in equity, if ob
tained under eircumstances of unfairness and imposition. Smith v. Loring, 437.

Where a person deeply in debt, in order to obtain a loan of money, agrees to purchase a tract of
land at more than double its value, and gives a mortgage upon other property to secure the
loan ant part of the purchase money, the vendor having notice of the vendee's necessities,
equity will rescind the contract. Hough v. Hunt, 442.

Upon a sale of land for taxes, an agreement among several that they will advance funds and one
shall buy, so as to prevent competition, and afterwards divide the lands among them, is fraud.
ulent, an equity will relieve against the sale. Dudley, et al. v. Little, et al. 445.

A court of equity will not turn a plaintiff in execution at law upon a fund manifestly not liable
to satisfy his judgment. Bank United States v. Shultz, 470.

A plaintiff having mistaken his defence at law cannot be relieved in equity. Abbott v. Hughes,
et al. 574.

Equity will not lend its aid, to subject the separate property of a partner, to the payment of part-
nership debts, while the joint property of the firm is unexhausted. Hubble v. Perrin, et al.
580.

Lands occupied by the permission of the owner under a parol agreement that the occupation
shall continue during the life of the occupant, cannot be subjected in equity to the debts of the
occupant. Waggoner v. Speck, et al. 584.

Where a person enters upon land under color of title, pays taxes, makes improvements as owner,
and is afterwards ejected at law, he cannot sustain a bill in equity for compensation and reim-
bursement against the rightful owner. Winthrop v. Huntington, et ux. 597.

Equity will decree damages where a vendor disables himself to convey the lands contracted for.
Gibbs v. Champion, 599

A decree in Chancery for the conveyance of land, if a deed be not executed within the time lim-
ited by the decree operates as a conveyance, subject as between the parties to a revesting of
the title, by a reversal of the decree; and when in such case the complainant conveys the land
in good faith, before the citation on error is served, a reversal of the decree does not affect the
title of the purchaser. Lessee of Taylor v. Boyd, 601.

It is error on a bill of revivor, to decree against infant defendants until a guardian ad litem be
appointed, except the appointment and either appear or be served with process. Where the bill,
and answer set up matters of account as a foundation of a trust, it is erroneous to decree for
the complainant without a full account taken. It is error to direct infants to convey with
special wananty. Upon a bill to set up a trust in real estate, part sold and part unsold, and
for an account of the proceeds, if a sum of money be found due to the complainant, it is error
to assign him land in severalty, in payment. Heirs of St. Clair et al. v. Smith et al. 603.
If the complainant seeking a conveyance from the elder patentee, have no patent when the bill
is filed, he is entitled to a decree, if he have a patent at the time of the hearing. Parker v.
Wallace, 640.

Equity will not enforce the lien of a judgment against the real estate of a debtor who dies after
judgment. The existence of the lien as well as the method of enforcing it, is purely a matter
of law. Mi. Ex. Co. v. Turpin et al. 654.

Where a party has an adequate remedy at Law, equity will not interfere. Crichfield v. Porter,
656. S. P. Bustard v. Dabney et al. 716.

Equity will aid the defective execution of a power, where the contract is fair and the power bona
fide delegated. Barr v. Hatch et al. 662.

Where a debtor before judgment, conveys lands, bona fide, in satisfaction of a pre-existing debt,
and executes a defective conveyance, the equity of the purchaser is superior to that of the judg-
ment creditor, and a court of Chancery will compel the judgment creditor, or a purchaser at
Sheriff's sale, with notice, if he obtain the legal title under the judgment, to convey to the first
purchaser. Barr v. Hatch et al. 662.

A term for 999 years renewable forever, though a leasehold estate, may be protected in equity.
Heirs of Ludlow v. Kidd et al. 671.

Equity will not aid a creditor to subject the real estate of an intestate, when the heirs and repre-
sentatives are non-residents, and where no letters of administration have been taken out in
this State. Bustard v. Dabney et al. 716.

If an administrator take goods on Replevin as the property of his intestate, from the possession
of a person who is not the owner, and on the trial judgment is rendered against him, equity

INDEX.

will decree an assignment of the judgment for the use of the real owner of the goods. Steele v.
Lowry et al. 718.

Personal property cannot be made the subject matter of a bill of peace, unless the right at law
Where a party prosecutes a groundless action of Replevin equity will
has been establishe 1.

not relieve him from the legal consequences. Lowe v. Lowry et al. 721.
Where an appeal is quashed for a defect in the appeal bond, occasioned by the mistake or over-
sight of the clerk, a court of equity will order a new trial, upon showing probable grounds that
the applicant had a case at law, and such trial may be had in the Supreme Court. Olicer et
al. v. Pray, 766.

A decree rescinding a contract of purchase, and directing the purchase money to be refunded,
and leaving the vendee in unconditional possession of the premises, is erronious. Waters et
al, v. Lemmon, 781.

Where the legal title is fraudulently obtained against a better equity and conveyed to an inno-
cent purchaser without notice, the complainants are entitled to a decree for the value agains
him who thus obtained by fraud the legal title. Ludlow's Heirs v. Kidd et al. 787.
A Demurier to a Bill in Chancery charging "a fraudulent concealment of title while the com-
Carter v. Longworth et al. 836.
plainant was making improvements" is bad.
Whether a court of law erred in opinion or not, is not a proper subject of enquiry in a court of
equity; nor whether a fair and impartial trial was had at law, unless the complainant shows
clearly to the court, that he had a good defence at law, and was prevented from availing him-
self of it, by fraud or pure accident, without any default in himself or his agents. Leiby v.
Parks et al. 861.

The power of administrators to sell the real estate of an intestate, is strictly a legal power; and
if a sale be made, its validity is triable at law; and if upon such trial, it is decided that the
administrator had no power to make the sale, such power cannot be set up in equity. Leiby v.
Parks et al. 861.

A subsequent purchaser from a mortgagor cannot redeem against a purchaser under a judgment
on sci. fa. upon the mortgage, though no party to the proceedings on the sci. fa.
v. Allen, 866.

A debtor may prefer one creditor to another. Barr v. Hatch et al. 662.

Dennison

SEE Attorney at Law, Insolvents, Entries and Surveys, Trust and Trustees,
Canals.

COMMON CONSENT.

A principle once established and continued by common consent, and with general approbation,
ought to be received as the law of the land.
Waddle, 182.

CONDITION.

Dugan v. Campbell, 56.

SEE Douglas v.

A covenant to convey part of certain lands, "the other party being at one half the expense of
procuring the title;" the payment of the expenses is a condition precedent. Hutcheson v. The
Heirs of McNutt, 10.

Conditions, independent, dependent, and mutual. Courcier et al. v. Graham, 150.

CONSTABLE.

Quere, whether a constable under a plea of justification may show that he was a constable de
facto, or must show that he was such de jure. Barret v, Reed, 422,

Proof of general reputation, and acting as constable, is competent evidence. Johnston v. Sted-
man, 479.

CONSTITUTION. SEE Statutes.

CONTEMPT.

The sheriff is authorized to take bail on an attachment for contempt. Morris v. Marcy et al, 724.
SEE Attachment for Contempt.

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