Philip Pendleton Barbour

“ Chan. 261, that where a trust is created for the benefit of a third party, though without his knowledge at the time, he may affirm the trust, and enforce its execution. The truth is, that although the object of the deed of trust was to secure Lane, its provision, that, in the event which happened, of his being sued, the property should be sold, and the notes which he had endorsed, should be paid, was the most effectual means of attaining that object: these notes were due to the bank, were held by it, and in paying them, therefore, the money must be paid to the bank. ”

“ The last exception, after setting out certain evidence given by the plaintiff, without even stating that it was all the evidence, states that the defendant prayed an instruction, that upon that evidence, the plaintiff was not entitled to recover either upon the first, or second, or third, or fourth counts in the declaration, which instruction the Court refused to give: and we think very properly. Whether evidence is admissible or not, is a question for the Court to decide ”

“ If entry and eviction were the ground of the action, or constituted the gravamen of the count, as in covenant on a warranty, or for quiet enjoyment, then, indeed, a declaration or count would be defective, which omitted to aver, that the plaintiff was evicted by due process of law, or by the entry and eviction of one who, at the time of the covenant, had lawful title to the land ”

“ The result, then, of this state of things is, that the property bought by the defendant in error, of the plaintiff in error, was legally sold under an elder subsisting lien; and thus he was utterly divested of all title, so as to show an entire failure of the consideration for which he paid his money, and to enable him to maintain an action for money had and received, to recover it back. We think that there is no error in the judgment ”

“ Each of them, after alleging the breach, terminating with the words, 'Whereby, &c.' Whether counts thus concluding, would have been sufficient upon a special demurrer in the Court below, it is not necessary to decide; because we are clearly of opinion, that the thirty-second section of the Judiciary act, would cure the defect, if it were admitted to have been one. ”