Slip opinions decided 1788 — Virginia Chancery Decisions

<p>1. Statute of limitations pleaded to a bill by heir in tail to recover a slave, her increase and their profits. Defendant at time of purchase had no notice of plaintiff’s title. Plaintiff replied that defendant’s vendor had removed said slaves to a distance for the purpose of concealing them; that he could not by diligent search find out where, or in whose possession said slaves were, till three months before he commenced suit. Held, by two chancellors, that “ upon the whole circumstances,” the statute should not bar.</p> <p>2. Remarks thereon by Wythe, Ch. who dissented.</p>

<p>[Absent Pendleton C., a party to the salt.]</p> <p>í. P. & L. were joint endorsers for W., who made to P. an assignment to indemnify him for said endorsement among other liabilities. In 1756, P. took in the protested bill of W. endorsed by him and L. and executed P.’s own bond for the balance due thereon. 1768, he sued L. for half of said balance, with interest. L. plead the stat. of limitations. P. replied that he was employed many years in settling W.’s affairs, and the suit was within the time since the amount to be contributed had been ascertained. Plea overruled by county court'and appeal toH. C. O. The two chancellors being divided, case adjourned to court of appeals,* who held : That under the particular circumstances the statute should not bar.</p> <p>2. Remarks thereon of Wythe, C.</p>

<p>S. R. bought of Defts. lands to he paid for in so much tobacco of certain inspections, as referees named should value them at. Some other transactions intervened. The referees (in 1781) made their valuation, not only in tobacco, but sterling money, and also adjusted the accounts between the parties. Judg’ts. were obtained against R. on the penal bonds he had executed. R. filed a bill for an injunction and for relief against the award. The Referees deposed that they had valued the lands as high as they did, in tobacco, in reference to the whole award, and that they would not have thus valued it, had they not combined therewith the adjustment made of the accounts. The H. C. C. set aside the award, and appointed other valuers than those selected by the parties! Wythe C. dissented from said appointment; and when sole chancellor reinstated the first valuation, and made that, in sterling money, the basis of his decree. The Court of Appeals also held that it was error to have appointed other valuers, without the consent, of the parties; set aside their valuation; and also the first valuation, in tobacco, because of the manner in which the referees were induced to make it.</p> <p>2. The first valuation is a proper foundation for a just and equitable decision ; if understood as intended by those who made it; i. e. according to the valuation in sterling money, not variable by changes in the value of tobacco. The Court of Appeals also held the same; but, as the contract was a specific one for tobacco, that the sterling valuation should be converted into tobacco, according to its price in sterling money, a,t the date of said valuation, to ascertain which an issue should he directed by the C. C.</p> <p>3. Instead of such issue, the price was fixed, by consent, by referees, whose decision both Courts affirmed.*</p> <p>4. R. drew bills payable to P. S. <$- Co., of whose firm he was a member, which were received by one of their agents as part payment of said lands; but the proceeds were never applied to the use of P. S. fy Co.; and the bills were protested. R. also obtained an assignment of a bond executed by P. $„ Sr Co., which their said agent received in the same manner, but before said assignment, the firm of R. S. Sr Co., of which It. was also a member, had assumed, fot value, payment of said bond; of which he was bound to take notice. Held by both Courts, that R. was not entitled to a credit, against the purchase money of said lands, either of said bills or bond.</p> <p>5. Commentary of the Chancellor.</p>

<p>1. W. being indebted to R. made R. one of his executors and guardian of his children in 1755. R. however, attended very little to the duties of executor; and the devisees having got possession of the estate, R. endeavored to have a settlement of the administration, that he might receive the balance due him. R. died in 1766. After that and as late as 1784, the parties interested expressed a willingness to have the accounts settled; and an order of court was made for the purpose; but the defendents, refusing to proceed therewith, R.’s administrators filed their bill for a settlement, &e. The defendants plead the stat. of limitations; which was held to be a bar.</p> <p>2. The doctrine that, as a trustee is not discharged by length of time from the obligation of accounting for his transactions and administration in and about (he subject committed to him, so a like privilege ought to attend a remedy of the trustee requiring an account from the eestuis que trust, is fallacious.</p> <p>3. Even if R.’s remedy had been suspended by his being executor as well as creditor, (which the court doth not admit,) the'suspension ceased with his death; and if as executor he did not assent to the devisees taking possession, as is alleged, he could have maintained a suit for the estate; and also as guardian ; besides his right to sue for his own debt in equity, or to retain for it as executor.</p> <p>4. There was nothing in the promises or acts of the defendants as to a settlement of accounts, to prevent the bar of the statute. Some of them had in writing referred to a settlement of R.’s estate; and one had written to one of the plaintiffs desiring and proposing a settlement.</p>

<p>1. An obligor unfairly dealt with in the purchase of a slave may be discharged from his obligation against the seller; but not against an assignee, for value, without notice of the unfairness.</p> <p>2. Objections to this opinion, and the chancellor’s answers thereto.</p>

<p>1. Priority of right to and and pre-emption, by settlement, sustained by the Chancellor; but denied by Court of Appeals, as to the pre-emption, against a survey prior to 11776, under an order of council.</p> <p>2. M. claimed laud and pre-emption by virtue of settlement in 1764. H. claimed same land, and the commissioners affirmed his claim. M. entered a caveat and appealed to the General Court, which in 1782 reversed the sentence, and rejected a motion for’an appeal. In 1783, the court of appeals awarded a writ of error but quashed it, on the ground that the judgment of the General -Court in such a was final. Prior to this, in the same year, the Court of Appeals had, (tinder the act of 1779, §10,) decreed in favor of the claims, under orders of council, of the Greenbrier and Loyal Cos. The surveyor of the Gr. Co. in 1775 surveyed the land in controversy, but in blank, owing to the contest betwven M. and H, H. afterwards procured said survey to be filled up to him, and than obtained a grant embracing the said land. M. filed a bill in the H. C. 5L ceking to vacate H.’s patent for his fraud in procuring it, tyc. The chancellor sustained the judgment of the General Court as final; and decreed in favor óf M. both as to the land and the pre-emption; upon his paying ¿£3 for every 100 acres to the Gr. Co. Reversed by Coart of appeals, as to the pre-emption.</p> <p>41. Comments ot the chancellor.</p>

<p>Action by P. v. It. for slandering his title to slaves exposed to public sale, by which their sale was injured: On second trial, on demurrer to evidence, — the jury found ¿£1000 conditionally v. B., — the District Court adjourned thecasc to the H. C. C. with a certificate that they thought the weight of evidence in favor of B. and the verdict was not satisfactory. But 11. C. C. and Court of Appeals sustained the verdict and refused a new trial †</p>

<p>1. If a debtor who owes money on several accounts, do not at the times of making payments, or before, direct in which of those accounts they shall be credited, the creditor may enter the credit in either account he pleases.</p> <p>2. B. indebted to S. on a protested bill of Exchange and also on a bond, assigned to him some securities, which were accepted as if they had been payments in money of the principal and interest due by said securities. B. claimed credit therefor against the bill of Exchange: S. claimed the right to apply them first to the bond, which the H. C. C. allowed him to do, B. not having directed otherwise. The Court of Appeals, “ without contravening the rule giving creditors the right of application of payments to either of different debts due at the time,” held, that the said securities should “from the combined circumstances of the case be applied to the protested bill; since it is evident the payer so intended it; and that if the receiver did not assent thereto, yet he did not make such recent and proper application of them otherwise as ought to control the choice of the payer.”</p> <p>3. B. indebted to S. by bond in 1776, sold S. merchandise in 1777-8 and 80. The H. C. C. held that said goods ought to be set off against said bond, only at their true value, as ascertained by the statutory scale of depreciation ; not as a measure of legal obligation; but one as just as any that then occurred. The Court of Appeals held the legal scale not a just and proper rule for 1777 and 1778; and allowed the goods to the end of 1778 to be set off at their nominal value against the principal and interest of the bond; and so mueh of the residue of the goods as would pay the interest on the balance due to S. also to be set off at their nominal value; but subjected the residue of said goods to the legal scale of 1780; — of 60 to 1.</p> <p>4. S. recovered judgments against B. and H. on the protested bill; but they obtained injunctions against his Executor. H. was one of B’s endorsers; and the amount for which he was responsible depended upon whether B’s payments were applied to the protested bill, or to the bond aforesaid. H. gained greatly by the Appeal.</p> <p>5. Remarks of the Chancellor on the decision of the Court of Appeals. See it in 1 Wash. 128.</p>

<p>1. By marriage settlement, the wife, at the death of her husband, was to have one-third of all the negroes whereof the husband died possessed, in lieu of dower; and if she survived and had no child by him, she was (o have all thenegroes which came by her, in her absolute right. She did survive and had no child by him. Held, that she was entitled to the dower slaves in addition to her own before the marriage.</p> <p>2. She is not precluded by a different division and assignment in the county court to which she was no party.</p> <p>3. Being entitled to the rents and profits of the slaves withheld from her, they will be set off against a purchase made by her at the sale of her husband’s effects; an injunction granted her and an account ordered accordingly.</p> <p>4. She was also to have a “ carriage and horses belonging to it.” This embraces only the two, that have ordinarily drawn it, and not the four driven to it.</p>

<p>1785, A .testator gives “ all the residuum of his estate to be equally divided betweeft the children of his uncle and his cousin, and their heirs forever, share and share alike.77 Between the date of the will and the lestator’s death, one of the children of the uncle dies. Held her share does not lapse, so that the heir at law takes it, as if by intestacy ; but the surviving legatees, or their assignees share it as if the deceased child had never existed.</p>

<p>In Byrd's lottery, one of the prizes was described as McKeand’s tenement, to which had been attached more than half an acre of land ; and also as No. 327 by the survey made by said Bvrd, and to which only half an acre was attached. Said survey, had been opnosed and once defeated by (he tenants; but was made and publicly hung up m the building where the lottery was drawn. S. drew the prize. Byrd afterwards sold laud adjoining said tenement to McKeand and he to others. S., over 14 years after the lottery, brought Ms bill claiming all that had ever been attached to the said tenement, as included in his prize. Held by the 9. C. 0.</p> <p>I. That a survey' and plan of the lands was a necessary part of the scheme; and that S. took by and for his prize only the half acre lot No. 327. But the Court of Appeals, held that he was entitled to all that had been attached to .McKeaod’s tenement, and gave him a decree against McKeand’s estate ;— dieia'ssiirg the bill as to the defendants who were purchasers from him without notice. 1. Wash. 336.</p> <p>■2. The jury, who tried the issue of boundary directed in the case, found for the defendants. Bat the Court certified that the weight of evidence was in favor of the plaintiff S. "The H. C. of Chancery concurring with the jury sustained the verdict; but the Court of Appeals took up the case upon its oiiginal merits, and reversed it.</p> <p>3. JMcK. having died, the suit should be revived against liis heirs and representatives specifically, and not merely in their general character, without naming them.</p> <p>4, Commentary of the Chancellor.</p> <p>S. The value of the land recovered should be fixed at the time that McK. sold to a purchaser without notice ; and interest allowed from that time.</p>

<p>In cun'roversies respecting conflicting titles, by grant, to lands, where fraud is suggested and proved, Courts of Equity have competent jurisdiction, are in ist. usually and properly resorted to, and can afford ample and adoqnaf» relief. Held by the Court of Appeals and also by the chancellor on reconsideration. Bill dismissed, because fraud was not proved. See this appeal ini Wash. 116.</p>

<p>1. Injunction, to judgment.founded on an award. D..owing only £100 was induced to give his bond for £150 — the £50 being regarded as a penalty. — - Equity will relieve against said penalty, not only upon the general principle of making compensation, but because in this case the plaintiff was prevented' by defendant (who was also guilty of fraud) from performing one of the alternatives agreed 'upon.</p> <p>2. An award will ba set aside for improper and unfair conduct of the referees.</p> <p>3. The Chancellor’s remarks on the opinion of the Court of; Appeals; and as ■ to their power to correct awards. See Ross v. Pleasants, Shore fy■ Co., in-this volume, p. 25-;■ and Í Wash; 158.</p>

<p>1. An award condemning a party to pay damages for refusing to ratify an illegal and fraudulent contract is not binding; and relief against a bond given in conformity with said award is properly sought in equity.</p> <p>2. Excessive damages alone ground of relief, as proving the arbitrators to have acted in some unjustifiable manner.</p>

<p>The testament of M. F., besides a bequest of a negro girl to E. W. afier the death of her mother, said, “ I give and bequeathe unto my mother all the remainder of my estate during her natural life; then after her death, this estate to return to W. P.” After the death of the mother M. F’s heir at law brought detinue for certain slaves then held through W. P., as said legatee. By arbitration, the said heir lost said slaves. But his son and heir brought detinue again for them and obtained verdict and judgment. On the trial, the award and judgment upon it, having been destroyed by fire, could not be produced, nor legally authenticated, (although they afterwards were authenticated.) Held, that the verdict and judgment were contrary to right, and a Court of Equity should give relief; and an injunction was perpetuated.</p> <p>2. M. F’s. father, after bequeathing to her said mother all his estate during her life, bequeathed the three first children a certain slave H. might have, to his three children, of whom M. F. was one, and she succeeded to the rights of the others. Held : that the slaves of M. F. were embraced by her bequest to W. P., whether they were the said children of H. or not; and whether her mother was already entitled to them for life, by the will of the father, or not.</p> <p>3. A testator can appoint an owner before the existence of the thing to be owned; as well as an owner not in existence at the time of appointment.</p>

<p>>1. A nvcbtcir with whom a pawn yielding profit is deposited, oug?;. «» . .reji it f.r sueli profit,thoughhe'his not nndertakfn lodoso: e. g. If A. kinC pp ■tobacco and, to secure the payment thereof, B. deposit with A. a slave,, o shall account for ti e prufiis of said slave, after deducting therefrom the in . terest on the .tobacco.</p> <p>2. B, by the agreement, was restrained from paying the to1 aici in the beginning or middle of a crop, so that said slave might not be recalled irorn A. at either of those times. B., by contract with would have paid it in March, bu1 A. refusing to deliver said slave then, prevented the payment, and so defeated the contract with J.; (pi? whether he ought to make amends to B. £ r the loss occasioned thereby.</p>

<p>In an action for slander, the judgment was enjoined, and new trial awarded by the County Court, on the ground that four of the jurors would not have found any damages but for the impression produced on them by the other jurors that they were bound to yield to the majority. The jurors Were allowed to testify as to the facts. The H. C. C. refuse,d new trial, and dismissed the bill. Rever-¡al by the Court of Appeals; on the ground that the verdict was found under a mistake. See this case reported in 1 Wash. R. 79.</p>

<p>New trial in action of assault, and battery' refused ; — The judge belów having refused it, and there being no matters before this Court which ought to have changed his sentiments.</p>

<p>Bill for relief against a verdict dismissed : the motion for a new trial, — the only ground f.i the interpusiiion of the Court, — having been rejected.</p>

<p>P. TVs will, dated 1789, gave and bpqueath<d ten negroes, nan ing them, and lands. He thpn owned neither, hutoniy pos-es«ed parr of the land. He afterwards acquired them by the will of his father. Held by the H. C. C. and decree affirmed by Court, of Appeals.</p> <p>1. That the devise of the lands was valid, by the Stat. of 1785-7, allowing devises of all estate, right, title and interest in possession, reversion, or remainder, present and future, in and to lands, tenements and hereditaments.</p> <p>2. That though the negroes are not embraced in said statute, — not even in the term “ hereditaments,” which might include them, — yet the devise of them is also valid, on general legal principles.</p> <p>The decision of the Court of Appeals, 1 Wash. 75, seems confined to the lands.</p>

<p>1. H. purchased of B. a London estate; thereby hindering L. from enjoying a right and exercising a lawful power derived to him from an agreement and letter of Attorney from B. to L. If H. had notice thereof, before his purchase vas complete and before payment of the purchase money, he is liable to L. for damages in an action at law, — L. not being able, by decree of any Court here, to subject the e-tare which lieth in Great Britain ; nor ought L. to be compelled to resort for redress to any Court of Great Britain, where, if H. be so liable, the remedy is no more proper than here; and he might be disappointed of his remedy against the land by a sale thereof to a purchaser without notice of his claim.</p> <p>2. Equity will also grant hiin relief in a suit for discovery whether H. had such, notice; and though H.’s answer deny such notice, the bill is still sustainable in order that Plaintiff may endeavor to prove the purchase such an one as .ought not to avail him who pleaded it.</p>

<p>1. Priority of claim to land, by virtue of settlement, again sustained by the Chancellor, and again denied by the Court of Appeals. His remarks thereon.</p> <p>*2. The plaintiffs liad prior claim by settlement, and one of them by sentence of the Commissioners. The other had entered a caveat, which was dismissed for want of witnesses. Defendents obtained grants for same land ; and the plaintiff's afterwards also obtained grants; and filed a bill to remove the impediment, to their title. The H. C. C. decreed in favor of plaintiffs. But Held unanimously by Court of Appeals, that settlement gave no right to lands, in law or equity, before the act of 1779, and was then to operate upon mere waste land, — not to defeat any claim to lands under surveys established by that Act..</p> <p>3. By Chancellor. Depositions may be read against a lile pendente purchaser, though they were taken when he was not a party to the suit. Court of Appeals rejected said depositions; because he was not- a party to ihe.suit; but say, that had ho been a pendente lite purchaser, they might perhaps have been read. See I Wash. 231.</p>

<p>1. The Chancellor, supposing that he is following their opinion, again reversed by the Court of Appeals: His remarks thereon.</p> <p>2. R represented the right by prior settlement, and claimed pre-emption- B.. represented the claim by survey ; part of the land having been surveyed in 1775. R entered a caveat, and the General Court decided in favor of R., — - thereby overruling the Commissioners. B. filed his bill for an injunction j and before the defendants had answered it, he procured, in 17í-6, a survey and gram embracing the land in controversy. R. filed his bill to vacate them. The H. C. C., in supposed congruity with the opinions of the Court of Appeals, in the cases supra, and between the Loyal and Greenbrier Companies, decreed as to the pre-emption in favor of B.</p> <p>3. Reversal by Court of Appeals; — this case distinguished from Maze and HanAUons, differently, by Chancellor and by the Court of Appeals. 2. "W ash. 43.</p>

<p>The words (in 1775) “ I give to my wife the use and profits of my whole es’ate, during her natural life, and after that is ended, my will is that the whole of my estate exclusive of that already given my wife, he equally divided helwixt whoever my wife may think prt-per to make her heir or he.irs, and my brother It. S.,” create a fee simple in the wife to one half the t state; just as i he had said, £iI give one half of my estate to her and to her heirs, ami 1 give the other half to her during life and after her death to my brothir.” Affirmed by Court of Appeals. 1 Wash. 266.</p>

<p>A legacy from a father to his daughter, (payable 100 £. within twelve months after August, 1777, and the re^t at the discretion of his executors, when it could be conveniently rased from the profits of his estate,) paid in 1778, to her guardian in depreciated paper money, is, by the subsequent act of 1781, good, and will be a discharge at the nomin tl am mnt, as to both the executors and co-legatees. And the guardian, having lent out part of the money,and received it in depreciated paper, which he at last funded, is not liable for the loss by depreciation.</p> <p>So held by the Court of Appea's: see 1 Wash. 226. The Comments thereon by the Chancellor, who had he d otherwise. This case is not in the Chancellor’s volume of Reports, hut one of the pamphlet afterwards issued.</p>

<p>1751. A testator devised lands to his wife during her widoivhood; and then to his daughter A. and her heirs after the time limited io her mother; also other land and a negro to another daughter and her heirs ; and then added, “ in case my two children should die without heirs of their bodies, then I give my said wife my plantaron, [before devised to her and to A ,] during her life, and after her death to my brother: my will is that my wife have all my estate t il the first child marries or arrives to the age of twenty one years; and my will is that there shall be an equal division of my estate and settlement.’1— Held, thattho condition annexed to the first devises to the wife, viz: the continuance of her widowhood, is not discharged by the subsequent devise to her until the elder child should be married or attain the age of twenty-one years. She is entitled to all thees’ate: to part, if she continue a widow, and to the remainder, till the oilier event, whether she married again or not.</p> <p>2. If she marry again, (as she did,) her title under the will to the laud deviled over to A. ceases ; but tier title to dower in it remains.</p> <p>3. A. died an infant, intestate and unmarried; and her share of the personalty was distributed among her mother, sister and two half sisters; but Held, that the. h lf-sisters not entitled to share A.'s personal estate ; an<J the feme plaintiff nut being of age when married, the statute of limitations is no bar to recovering the portions received by the half sisters.</p> <p>4'. The plaintiffs, A.’s sister and her husband, are entitled to two-thirds of the profits of the lands devised to A., made after the marriage of her mother.</p> <p>5. Insertion of testator’s name at top or in any other part of a will, equivalent to signature at bottom.</p>

<p>The words in a will, “I give to my wife S., all my personal estate and negroes, (naming them,) and the use of the plantation whereon I now live, during her natural life,”, confer only a life estate in the personalty and the negroes, as well as in the plantation; the phrase “during her natural life” qualifying the whole.'</p>

<p>1. 1751, J, B., who was seised of lands in fee, devised them to his eldest son, who was also heir in tail of other lands which J. B. held in tail, and which 'he devised to his sons T. and W. The heir of the eldest son recovered the entailed lands which the father had devised; but an injunction was granted; and it was heed, that it was plainly contrary to the testator’s intention, that he should have all the lands; and having elected to take those in tail, he was compelled to convey the others to those who claimed through T. and W.</p> <p>2. Along with the lands held by the testator in fee, he bequeathed slaves to the eldest son. Heed, that he should also account for said slaves and their increase, and for the rents and profits of the lands to be conveyed by him; and the plaintiffs should account for the rents and profits of the lands recovered by him.</p>

<p>A mortgagor, or his devisee, who will not redeem the estate pledged, hat retaining the possession taketh the profits thereof after the time limited for the performance of the condition, ought to account for such aftertaken profits.</p>

<p>1. R. B., intended to divide the remainder of his estate nearly equally between his daughters; and made known that intention to them, and especially to such as were seeking alliances with his family. He made a will accordingly, and made it known to his son-in-law, Beckwith and his wife, to assure them of his said purpose. Held, that this intention should be executed, notwithstanding codicils to his will more favorable to some of the daughters than the ¡rest; .and the altered relations of some of the parties. The other points de ■ cided were chiefly incident to this.</p> <p>2. R. B- bequeathed slaves to his wife for her life, empowering her to dispose of them among his daughters or some of them. Her will was set aside for fraud in its procurement.</p>

<p>Plaintiff purchased of Defendants several bonds due their testator. They agreed tiiat in ease any part of said bonds had been paid to certain attoruies, said sums should be refunded to the said purchaser. In a bond given by the defendants for the due execution of the contract — the sum then due on said bonds is recited, and that “all which bonds, together with the interest accruing thereon, still remained due and unpaid.” The attorneys referred to had received £920. 14s. lid.; but refused to pay the interest on it which was demanded. The amount due by the assigned bonds having been reported less than above recited, one of the defendants agreed to make a deduction therefor, and a referee stated said deduction erroneously. The plaintiff agreed to rectify mistakes. Judgments at law were obtained v. the plaintiff on his bonds given for the purchase money of the bonds sold him ; and he made no claim for the deduction aforesaid ; but afterwards obtained an injunction. The defendants in a suppletory answer retracted their agreement to make the deduction aforesaid. Held, by the H. C. 0.,</p> <p>1. That tho purchaser was not entitled to any deduction; and that the sum due on the bonds was in fact greater than that stated in the agreement; and the defend mis were credited by the excess. The Court of Appeals, however, allowed the deduction.</p> <p>2. That the purchaser is not entitled to interest on the sum received by the said attorneys ; the interest stated to be due being only that on the bonds befoie any of them were paid. The agreement was to assign said bonds, “ with the interest which had accrued thereon and the purchase money was to be paid so many months “ after the date of the assignment.”</p> <p>3. The purchaser claimed the postponement of the time for charging interest on his bonds, because of a delay in executing the assignment; but held that the interest commenced when his bonds became due according to their terms.</p> <p>4. The first effort at authenticating the assignment, &c., was ineffectual. Held that the expenses of the second powers and assignment, should be borne by the plaintiff, — the purchaser. The Court of Appeals divided them equally,</p> <p>5. The defendants being successful except as to'one small claim, were allowed their ousts in Equity. But denied them by the Court of Appeals.</p> <p>[The appeal does not appear to have been reported. — Ed.]</p>

<p>1. A debt, due to a British creditor was not discharged by payment in paper money into the loan office, under the Act of 1788, which enacted that such payments should have that effect.</p> <p>3. The right to money duo to an enemy can not he confiscated.</p>

<p>W. Jl's will said : “ I give to my son (the plaintiff) the plantation on which I at present live, and all my lands in King William, also my land in D. and in J. C., to him and his heirsand after other devises of land, and declaring that his wife should hold and enjoy any part of the aforesaid lands, during widowhood, added, “ all the residue of my estate, of what kind soever, I give and bequeath to my wife aforesaid, and my children, to be equally divided among them.” At his death, besides his fee simple lands in K. W., he was entitled to lands there demised for 999 years, and had brought suit to recover possession of a part thereof withheld : his executors obtained it. Held, by the Chancellor, that by the above devise said leasehold lands also passed to the plaintiff. He states that it does not appear that the testator knew that said lands were only leasehold; but the contrary is more probable, so that he must have intended to embrace them. But his decision was based chiefly upon a denial of the authority and reasoning of the case of Rose v. Bartlett, Cro. Car. 1, 292, which he here reviews. But the Court of Appeals reversed his decree. 1 Wash. 300.</p>

<p>1. Motion for a new trial on the ground that a paper offered in evidence and rejected by the Court, had been taken out by ihe jury and influenced iheir verdict. The paper was a certificate of three of the witnesses in the case and did not vary from their viva voce testimony. A new trial should not be granted.</p> <p>2. A county court has no power to interfere by bill in equity, with a verdict in another court; but the H. O. C. having possession of the case by appeal from a bill improperly brought in the County Court will proceed with it, as if originally commenced there ; and</p> <p>3. New fads being disclosed, which might have procured from the jury a different verdict; or from the court that tried the case a new trial, the H. C. C. will grant a new trial. Issue directed to be tried again in County Court of Henrico.</p> <p>4. A. had sold W. houses and lots in Yorktown, valued at £1000, one-half payable in 12 months: — during which great depreciation had occurred and the main question was whether W. should be allowed to pay in paper money. See Yates v. Salle, ante p. 163, and Hamilton v. Urquhart, post.</p>

<p>1. ’ Revolutionary officers in one of the legions raised by .Act of 1781, who conr tinned in service from the time of entering it, until Feb. 1783, when they were discharged by the Governor, and were not .afterwards required to enter into service again,- Held, .by Court of Appeals, not entitled to half pay, because they were.discharged before the preliminary articles of peace were notified, on the 19th da.y of April, 1,783, .and did not again enter into service , and .continue therein,to. the end of the war. Opinion of General Court reversed.</p> <p>2. The judgment of the Court of Appeals being without prejudice to any future claim on fuller evidence, the question came before the H. C. C., which decreed the half pay; and -commutatfcm, — to such as were entitled to commutation.</p> <p>3. The Chancellor’s remarks -sustaining his opinion against that of the Court -of Appeals.</p>

<p>New trial granted for mistake in the verdict: Jurors examined to prove the mistake.</p>

<p>.Before our revolution .two brothers, british subjects, purchased jointly lands in Virginia and in N. Carolina. One, who had acted as the agent in said purchases, and was also appointed executor of the decedent, became entitled to the legal right by survivorship; but he repeatedly declared it unconscientious to avail himself of said survivorship and made efforts during his life to confer his brother’s interest upon said brother’s heirs. So that it was plainly known to be his intention not to take the benefit of his survivorship. After his death, the children of the other brother claimed their father’s interest. Held:</p> <p>1. That the survivor was ;a trustee for the plaintiffs, who were entitled to their father’s rights and interests in and to said lands even against survivor’s devisees.</p> <p>2. That the defendents, whose title was not acquired by purchase for valuable consideration can not bar the demand of the plaintiffs by length of time; and that the plaintiffs, whose right accrued before the separation of the United States from Great Britain, are not disabled to prosecute this suit.</p> <p>3. That the Court hath jurisdiction, the defendents being amenable to its process, though the land lies in another State.</p> <p>4. The plaintiffs are entitled to rents and profits: accounts ordered accordingly,</p>

<p>Decree for specific execution of a contract for the sale and purchase of land : the plaintiff insisted that it should also have been for the sale of the land, if the purchase money should not be paid in a reasonable time; and a decree for the deficiency, if any, against the body or estate of the defendant. Held : that an agreement is in equity specifically performed when the parties are put into the state in which they would have been, if the agreement had been punctually performed, and the court will not decree the land to be sold; but that the defendent do pay the purchase money, the dates for paying his promised bonds having passed.</p>

<p>Bill for specific execution of agreement to purchase land. Same point as in the preceding case. Decree for sale of the land refused. ,</p>

<p>1. The Court of Appeals, reversing the decree of the Chancellor, who had decreed otherwise, held (2 Wash. 136,) that if a bond be made joint without fraud or mistake, equity will not charge the executors of the surety who have become discharged at law by his death in the life time of the principal. Miter, if the money for which the bond was given had been lent to both obligors.</p> <p>2. Remarks of the Chancellor in support of his opinion; which is supported now by the Code, p. 582 sec. 13.</p>

<p>The section of the statute of 1785-7, that an intestate’s real estate shall descend to his children; if none, to his father; if none, to his mother, brother, and sister, &c., was enacted in 1792, by an act which repealed that of 1785-7, which was to be in force from its passage; but subsequently, in the same session, the operation of the Act of 1792, was suspended. By Act of 1789, the mere repeal of a law did not revive a law which it had repealed. Held, that the section of the Act of 1785, above cited, was not repealed, nor the Act itself, daring the suspension of that of 1792. So that,</p> <p>1. Sisters could participate with their brother in an inheritance.</p> <p>2. Lands acquired after the date of a testament could be transferred by said testament if sueh be the testator’s intention.</p> <p>3. If such after acquired land did not pass by a testament, it would descend, in ■default of children and their descendents, to testator’s father, and so, on ■down according to the statute.</p>

<p>The statutory scale of depreciation not applied to a bond in 1777, under the exception allowed by the slat, of 1781; — and the value of paper money daring the dealings between the parties before the depreciation began, not being shown to have been less than of money current at this time.</p>

<p>1. R. lost a military certificate, and obtained from the Auditor a duplicate,, which, however, he returned as soon as he knew the original was found.— In the mean time, the original had been purchased by the plaintiff for value and without notice. Held : that R. was entitled to the certificate, with interest thereon received ; or to the principal and interest.</p> <p>2. A court of equity may decree a plaintiff to pay money to a defendant, who-had not demanded it by a cross bill.</p>

<p>1. If a British subject be declared a Bankrupt in England, having debts due him in this Commonwealth, his British creditors can not recover satisfaction out of said debts in our Courts; for</p> <p>2. The English Law will govern in our Courts in such a. case and by that Law said debts would be transferred to the assignees in Bankruptcy.</p>

<p>On the words, ‘ provided that there be no representations admitted among col- * laterals, after brothers and sisters children,’ which are literally transcribed Into our statute, english courts have decided that the collateral kindred, whose representatives succede to the shares, to which their parents, if they had been living, would have succeeded, must have been brothers and sisters of the intestate :</p> <p>So that although B, the surviving brother, and D, the child of C, a deceased brother, would succede to the goods, of A, ¡dying intestate, and childless, &c.</p> <p>Yet B, the surviving uncle, should succede to all, excluding D, the child of C. a deceased uncle, from succession to a part of the goods of A, in the same circumstances.</p> <p>So, if B, and C, had been nephews of A : or if B, had been the uncle and C, the nephew, who, by the case in 1 Atkyns rep. 454, are in equal degree of kindred to A. ‘</p> <p>The argument of JVorth, O. J., (in T. Ray. Rep. 496,) in support of these decisions, examined by the Chancellor; who holds, that</p> <p>The children of those next of kindred to the intestate in equal degree, however remote, are not excluded from succession, to the portion to which their stock, if living, would have succeeded. His reasons for such an explication of the Statute.</p>

<p>The Sfalute of 1758 for preventing fraudulent gifts of slaves, — (that a gift not declared by testament in writing, or deed proved and recorded,, should not, . pass the right to slaves,) — upon which Statute, if a gift had been, the plaintiffs relied, did not comprehend and avoid a delivery of slaves in consideration of marriage. This case arose as follows:</p> <p>A father, upon the marriage of his daughter, delivered to her hushand eertain slaves.' Afterwards, by his will, he lent to her and her husband all the negroes then in their possession, (with their increase,) for their lives; and after,' to be equally divided am .ng her children, if she have lawful'issue. The defendent S.. was her daughter. 8he then married the plaintiff F. S. being still an infant, her guardian demanded the slaves as her property, on the ground that the testator had permitted them to remain in the service of S.’s father, although said testator had never given them to her father but by his will aforesaid. At the time of the testator’s death, they had been in the possession of S ’.s father about three years; the plaintiffs had had- possession of them about two years. It. was agreed that the right to them should be submitted to a Court of Chancery. See these facts ini S. C. 4 Call. 361.</p>

<p>If the Sheriff neglect to return an execution, at the request of the plaintiff, he is not liable to a fine; and a judgment for such fine may he enjoined ; and though the answer deny such request, yet the testimony of the one witness proving it is sufficiently corroborated by the plaintiffs having rested for three years without complaint that the execution had not been returned, and there being no inducement to have it returned, as there was no property on which a new execulion could be levied.</p> <p>Though the answer deny the allegations of a bill, if a discovery be not required, the, defendent is not bound to answer on oath, and against his answer whether on oath or not, the testimony of one credible witness will prevail over it..’</p> <p>Equity may relieve against such a fine, on the principle upon which it relieves against forfeitures and penalties.</p> <p>The„Court of Appeals, 3 Call, 44, October, 1801, — affirmed the decree of the .Chancellor'; and said that the fine imposed on an officer who had committed no fault,' for the benefit of one who had sustained no injury, was superlatively excessive, unconstitutional, oppressive, and against conscience. And that equity ought to give relief even if appella'-t, B. had pleaded to the jurisdie- • tion or demurred, as was done in Pryor v. Adams, 1 Call, 390.</p>

<p>Bequest of the interest of stock to testator’s daughter for life; then said interest over equally to testator’s grandchildren; and “ at their decease principal and interest to be disposed by them to thoir heirs, in such proportions as they, by their wills, respectively, may direct; and in case of the death of grandaughler S. 0 , without issue, her part to grandaughter E. 0.”</p> <p>The Chancellor held, that this was only a bequest of the interest to the grandchildren, who were to reserve the principal and distribute it among their heirs respectively. The Court of Appeals held, it was an absolute gift to said grandchildren after said daughter’s death, and, confirming the decree of the County Court, reversed that of the H. C. C., in the Appeal. 5 Call, 150.</p> <p>The same point is involved in Goodwyn v. Taylor, 4 Call, 305; S. C. 2 Wash. 74; and decided the same way.</p>

<p>The pltff., known to have a feeling of attachment to certain slaves that were sold at auction, was induced to bid and buy them at an exorbitant price by a by-bidder. One of the defts. suspecting that some would decline bidding in order to favor the pltffi, instructed the auctioneer not to let the slaves be sold under a reasonable value. The auctioneer then employed the by-bidder, without any special instructions to do so. Judgt. for the purchase money in-joined, and the sale set aside as to the excess of price and an issue directed, or a reference to a commissioner by consent, to ascertain a fair price.</p>