DEMAND AND NOTICE-CONTINUED.
but no place was specified in the contract, the law fixed the residence of the party
agreeing to furnish the wood as the place of delivery. Patterson vs. Jones, adr.,
2. In an action on such a covenant, it is not necessary to allege a demand of the
wood-readiness and offer of performance on the part of the obligor, is matter of
defence to be interposed by plea. Ib.
3. In a declaration against the endorser of a note, it is necessary to allege a demand
of payment upon the maker, and refusal, as well as of notice of such demand and
refusal. Grace et al. vs. McDaniel, 394.
4. To charge the endorser of a note, as a general rule, due presentment to the ma-
ker, for payment, by the endorsee, and due notice of dishonor, is necessary; but
this may be waived, by the endorser, by a promise to pay before or after matu-
rity of the note. Lary vs. Young, 401.
5. Where the promise to pay is made after the maturity of the note, stronger cir-
cumstances will be required to justify the inference of a waiver of the want of
due demand and notice, than in cases of a promise made prior to the maturity.
1b.
6. Whether or not the facts and circumstances shown by the evidence amount to
a waiver, is not a matter of law, but of fact, to be determined by the jury. Ib.
7. In this case, the note was endorsed before maturity. A few days before it was
due, the attorney of the endorsee reminded the endorser that it would soon be
due, and that the makers had left the place. The endorser replied that he owed
the note, and that it was all right, that he had endorsed it to pay it, and that if
he was not there to pay it when it became due, his agent, who had notes and ac-
counts in his hands for collection, would do so, &c: HELD, Sufficient evidence
of waiver of demand and notice, to support the verdict against the endorser. Ib.
1. Where a plea in abatement is filed after demurrer to the declaration overruled,
and hence out of time, the objection should be taken by motion to reject or strike
out the plea, and not by demurrer, which goes alone to the legal sufficiency of
the plea. Knott et al. vs. Clements, ad., 335.
2. Demurrer to plea in abatement, does not reach back to the declaration. Ib.
1. Section 8, ch. 55, Digest, requires three days notice, and one additional day for
every twenty miles of distance from the place of serving the notice to the place
of taking a deposition. The deposition in this case was taken in Philadelphia,
and it was proven that if the distance was to be computed by way of the rivers,
which was the route usually traveled, the notice was not in time, but if the dis-
tance was to be measured by the usual direct land routes, there was time enough,
though less traveled, and in fact less expeditious than the river route: HELD,
That the notice was sufficient; that the statute, evidently adapted to a new coun-
try, wanting in the facilities of transportation, contemplates the usual, conve-
nient, and most direct practical land route. Lindauer & Co. vs. Delaware Mutual
Safety Insurance Company, 461.
4. It has been held by other courts, that the death of a slave after detinue brought,
and before judgment, was no defence to the action. This court held, in May v.
Jamison, (6 Eng. R. 368,) that the death of the slave after judgment, was no dis-
charge of the defendant. Jamison et al. vs. May, 600.
DISCHARGE OF PRISONER.
See Criminal Law, 84 to 89.
1. Although a discontinuance as to one defendat may be a discontinuance as to all,
yet the remaining defendant should avail himself of such discontinuance, and if
he does not to do so, but proceeds to trial, the discontinuance as to him is wai-
ved. Jester vs. Hopper, 43.
2. Where defendants in an action of trespass plead severally, and plaintiff takes is-
sue upon the pleas of two of them, goes to trial and obtains verdict and judgment
against them, without responding to the plea, or disposing of the other defend-
ant upon the record, the judgment is not, on that account, reversible. Criner et
al. vs. Brewer, 225,
3. The failure of the plaintiff to take issue to the plea of one defendant in trespass,
and his proceeding to trial against the other two, must be regarded as an elec-
tion to discontinue as to the one, and such discontinuance, even if formerly en-
tered, would not operate a discontinuance as to the others. Ib
1. On a proper showing, under Digest 810, the plaintiff is entitled to a discovery
from defendant. Bank of the State vs. Steen et al., 36.
DISTANCE.
See Depositions.
DISTURBING RELIGIOUS CONGREGATIONS.
1. In an indictment for disturbing a religious congregation, assembled for worship
DISTURBING RELIGIOUS CONGREGATIONS.
in a church, or other place, the place of assembly is descriptive of the of-
feuce, and must be proven as alleged. Stratton vs. State, 688.
2. An indictment for disturbing a religious congregation, assembled in a certain
church, is not sustained by proof that defendant disturbed a congregation as-
sembled in the open air, at a place temporarily prepared for worship, about
forty yards from the meeting house. Ib.
3. So the mode of disturbance must be proven as alleged. Ib.
4. An indictment charging defendant with disturbing a congregation by using in-
decent gestures and threatening language, in the presence and hearing of such
congregation, is not sustained by proof, that while the preacher was discours-
ing, he made some remarks of a controversial character, upon which the de-
fendant, who was also a preacher of another denomination, interrupted his
discourse, by declaring: "the doctrins you advance are untrue and false; I
hold the word of God in my hand; and, am prepared to defend it, at all
times;" the defendant being excited, and producing confusion in the congre-
gation, but using no gestures or threatening language. Ib.
5. However improper the conduct of the defendant may have been on the occa-
sion, the verdict against him was unsupported, as the proof failed to sustain
the allegation in the indictment, as to the manner of the disturbance. Ib.
1. Under our statute, a widow is not entitled to dower in the choses in action belong-
ing to the estate of her deceased husband-nor does the court concede that she is
entitled to dower in land warrants. Mulhollan ex. vs. Thompson & wise, 232.
2. A married woman may relinquish dower by joining her husband in the deed,
and acknowledging the same in proper form. Without joining in the deed, the
acknowledgment is not sufficient. Digest, ch. 37, sec. 11. Witter vs. Biscoe et al.,
1. The court do not sanction the doctrine that, in this State, a bequest to a slave,
by present words of gift, would have the effect of liberation. Campbell et al. vs.
Campbell et al., 513.
2. The act of January 20th, 1853, (Digest, ch. 75,) prohibiting the emigration of
free negroes into this State, did not repeal, by implication, chap. 63, Digest, au-
thorizing the emancipation of slaves by deed or will. Ib.
1. In order to constitute larceny, there must be a taking of the goods either actual
or constructive; and the felonious intention must exist at the time of the taking;
otherwise, no subsequent felonious intention will render the previous taking fe-
lonious. Fulton vs. The State, 168.
3. The crimes of larceny and embezzlement are wholly separate and distinct, and
the same evidence will not support an indictment for both offences. The 5th sec
of art. 3, ch. 51, Dig.. was designed simply to extend and lay down with grea-
ter particularity the crime of embezzlement, and make the punishment the same
as in larceny. Ib.
4. Evidence tending to establish the offence of embezzlement, is not admissible un-
der an indictment for larceny; nor can the law defining the former and prescri-
bing the punishment, govern on an indictment for the latter offence. Ib.
1. If separate suits be brought for the same cause of action against co- obligors,
where one is principal and the other is security, and the principal is dischar-
ged on trial of a plea to the merits, which would enure to the benefit of both
defendants, if sued jointly, (as the plea of payment or accord and satisfac-
tion) such judgment, in favor of the principal, is not an estoppel against the
plaintiff, if pleaded by the security in bar of the action against him. State
Bank vs. Robinson et al., 214.
1. The common law courts have jurisdiction and power over their process, and
also over the officers who execute it; and in the due exercise of this power, such
courts may, upon motion, not only quash and set aside their judicial process
and the returns made by the officer under it; but may also, at any time be-
fore a deed is executed to the purchaser, and approved of and acknowledged
and entered of record, upon a proper presentation of facts, quash the process
and set aside the sale. State Bank vs. Noland et al., 299.
2. But after the court has approved the sale, and caused a deed to be acknow-
ledged and delivered to the purchaser, whereby he has had assured to him a
perfect legal title to the property, the law court cannot, at a subsequent pe-
riod, upon motion, or otherwise, set aside the sale, and divest the title of
the purchaser, on the ground of fraud, accident, mistake, or any irregularity
in the proceedings, but the remedy of the party complaining is in equity. Ib.
1. Where written evidence of part payment would be incompetent if produced,
parol evidence is admissible. Conway B. et al. vs. State Bank, 48.
2. As a general rule, where there is written evidence of a fact, parol or secondary
evidence is inadmissible; but it has been held, that written acknowledgments,
and receipts of payment, where question of such payment is in issue, from ex-
ceptions to this rule. Ib.
3. An indictment for betting money on a game of cards, is not sustained by proof
of the betting of property. Horton vs. The State, 62.
4. Possession of an order by the maker of a note, drawn upon him by the payee
of the note, is prima facie evidence that he has paid the order according to its
tenor, but he must prove its execution before he can introduce it in evidence.
Lane vs. Farmer, 63.
5. In an indictment for stealing a horse, it is not necessary to prove by direct evi
dence that the horse was of some value, but this may be sufficiently established
by proof of facts from which the jury may infer it. As where the prisoner said
he borrowed the horse, and again that he stole it, it might be inferred that the ani-
mal was of some value, as no one would borrow or steal a horse totally valueless.
So, evidence that the witness went a hundred miles to hunt the horse after he
was stolen, would tend to prove that he was of some value, as one would hardly
go so far for a worthless horse. So, proof that the horse possessed the power of
locomotion, and traveled a hundred miles and back again, would go to establish
the fact he was of some value. These facts appearing, this court refuse to award
a new trial on the ground that the value of the horse was not proven. Houston v
The State, 66.
6. A party relying for title to a slave upon the Virginia statute of frauds of 1785,
must affirmatively prove peaceable and interrupted possession of the slave five
years, in himself, or the person under whom he claims. Whitfield vs. Brow-
der et al., 143.
7. Where a father loaned to his daughter a slave, but asserted his title to her every
christmas by having her brought to his house, and then permitting her to re-
turn again, no title vested in the husband of the daughter under the above sta-
tute, his possession not being continuous and uninterrupted. Ib.
8. It is a well established rule that in construing evidence, it shall be so construed
as to reconcile apparent inconsistencies, if the language used will admit of it, so
as to give credit and effect to the whole statement of the witnesses. Ib.
9. Where the acts and conduct of several parties show them to have been joint
conspirators, the declarations of one may be given in evidence against another.
Doghead Glory vs. The State, 236.
10. A. and B. were together; defendants came up, and attacked A, who, after firing
his pistol at one of them, fled; they pursued him a short distance, and immedi-
ately returned to where B. was, whom, as was inferred from circumstances, they
killed, and were indicted for the murder: HELD, That it was competent, upon
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