Volume 2 — Virginia Chancery Decisions

<p>5. Slaves — Bill to Recover — Statute of Limitations.— 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, 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, Oh. who dissented.</p>

<p>[Absent Pendleton O., a party to the suit.]</p> <p>>. Notes — Joint Endorsement* — Statute of Limitations, † —P. & L. were joint endorsers for W., who made toP. 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 to H. C. C. 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. 0.</p>

<p>i. Awards — Reappointment of Valuers — Failure to Obtain Consent of Parties — Effect.—R. bought of Defts. lands to be 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 sterling1 money, and also adjusted the accounts between the parties. .Tudg-’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 referrence 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. O. set aside the award, and appointed other valuers than those selected by the parties. Wythe. 0. 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>3.Same--First Valuation — Foundation for Decision.* —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, at the date of said valuation, to ascertain which an issue should be directed by the C. C.</p> <p>3 Same — Same.—Instead of such issue, the price was fixed, by consent, by referees, whose decision both Courts afflrmed.†</p> <p>4. Bonds‡ — Assignment§ — Assignee. — JR. drew bills payable to P. 8. & Co., of whose firm he was a member, which were received by one of theii agents as part payment of said lands; but the proceeds were never applied to the use of P. 8. & Co.; and the bills were protested. JR. also obtained an assignment of a bond executed by P. 8. <& Go., *which their said agent received in the same manner, but before said assignment, the firm of It. 8. & Co., of which JR. was also a member, had assumed, for value, payment of said bond; of which he was bound to take notice. Held by both Courts, that JR. 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>

'THE plaintiffs, in their bill stated, that an ^intimacy and friendship having been between John Robinson and Beverly Whiting, the former, not only advanced to the latter monies at different times, but, being treasurer of Virginia, did, at his request, allow to sheriffs and inspectors money due to them from Beverley Whiting, charging them to him in account, and giving him sundry credits, a copy of this account, number 1, supported by vouchers, is annexed to the bill, whereby…

<p>i. Bonds — Fraud—Assignment—Bona Fide Holder.*— 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>¡8. Objections to this opinion, and the chancellor’s answers thereto.</p> <p>Note. — The cases referred to by the Chancellor <p. 47) as those in which the same question hath been since discussed, may have been Norton v. Bose, and Picket v. Morris. 2 Wash. 233 and 255, in which the Court of Appeals, overruling the Chancellor, held “That an assignee of a bond, or obligation, takes the same subject to all the equity of the obligor ; and that the obligor ought to be allowed to set off and discount against the debt when claimed by the assignee any equitable demand respecting said debt, which he had a right to claim from the original obligee.” See also, as some of the cases pari materia, Mayo v. Giles adm’r. 1 Munf. 533 ; Stockton v. Cook, 3 Munf. 68 ; McNeil et ais. v. Baird. 6 Munf. 316; Broaddus et ais. v. Bosson. et ux. and Moore et ais. v. Holcombe et al. 3 Leigh 12, and 597; Feazle v. Dillard, et al, 5 Leigh 39 : 6 Leigh 230 : Washington v. Pollard, 5 Grat. 532. — Note in edition 1852.</p>

■ THE subject of controversey in this case was 400 acres of land, in the county of Greenbrier, with a right of preemption, the plaintiff claimed by virtue of settlement in 1764. the defendents claimed by virtue of both a settlement and a survey, alleging the survey, when they first pretended to derive a title by it, to have been made in . 1774, altho the survey to which they alluded , appeareth to have been made in june, 1775, by an order of council, granted to the…

IN an action on the case by the defendent against the plaintiff for slandering the title of the former to certain slaves by him exposed to public sale, upon trial of the general issue, the jury found a verdict for him, assessing his damages to 500 pounds. The plaintiff brought a bill to be relieved against the verdict, praying an injunction, which was granted until further order, and afterwards, when the answer was filed, dissolved upon a motion.

'THE facts considerable in these cases are omitted here, because they are stated, partly in the two following; decrees, and partly in the remarks on the last. At the hearing, the 27 day of October, 1790, the high court of chancery delivered this

THE plaintiff Anne was the widow of William Roane, the testator of the defend-ents. before their intermarriage, on the 24 day of October, 1782, they had executed an agreement, the articles of which were to this purpose: ‘first, that the parties, during their coverture,, shall hold, possess and enjoy all such rights and privileges as belong to them, in as ample manner as if the agreement had not been made, secondly, if he should die before her, that she shall immediately hold…

<p>Wilis — Construction-(sift to Class — Lapse.—1785. A testator gives “all tile residuum of his estate to be equally divided between the children of his uncle and his cousin, and their heirs forever, share and share alike.” Between the date of the will and the testator’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>

IN 1767, William Byrd, by advertisements, in the gazette, published his intention to dispose, by lottery, twenty nine improved tenements, of which one, called John M’Keands, valued at one hundred and forty four pounds, was demised to that tenent at the yearly rent of twelve pounds, and eight hundred and ten unimproved parcels of land, whereof one hundred contained one hundred acres each, others half an acre each, and some were islands, the estates lay at and near the falls…

A TEAC.T of vacant land was surveyed for Henry Hatcher, in the year 1740, and was granted to him by letters patent, which were sealed the 16 day of august, 1756. Leave was granted, by the governor in council, the 3 day of may, 1744, to Wood Jones, to survey and obtain a grant of land, which was accordingly granted to him, and within the bounds of which is included the land granted to Henry Hatcher.

THE bill was to enjoin a judgment, founded on an award. The plaintiff, in September, 1783, agreed to purchase ISO acres of land from the de-fendent for 200 pounds, and, some weeks afterwards, executed two bills penal for payment, one of 100 pounds, and the other of ISO pounds, to the defendant, on or before the 25 day of december, in the same year.

<p>1. Equitable Relief — Award on illegal Contract.* — 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 witi said award is properly sought in equity.</p> <p>2. Same — Award — Excessive Damages. — Excessive damages alone ground of relief, as proving the arbitrators to have acted in some unjustifiable manner.</p>

<p>j. Wills — Residuary Bequest — Judgment—Injunction-Case at Bar. — The testament of M. F. besides a bequest of a negro girl to F. W. after 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. Same — Same—What It Embraces — Case at Bar. — 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. where 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. Same — Testator Can Appoint Owner of Thing Not in Existence.* — 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. Pawn — Creditor Holding Should Account for Profits Arising Therefrom, — A creditor with whom a pawn yielding- i>rofit is deposited, ought to account for such profit, though he has not undertaken to do so: e. g. If A. lend B. tobacco and, to secure the payment thereof. B. deposit with A. a slave, A. shall account for the profits of said slave, after deducting therefrom the interest on the tobacco.</p> <p>2. Same — Case at Bar, — B. by the agreement, was restrained from paying the tobacco in the beginning or middle of a crop, so that said slave might not be recalled from A. at either of those times. B., by contract withwould have paid it in March, but A. refusing to deliver said slave then, prevented the payment, and so defeated the contract with J.; qu? whether he ought to make amends to B. for the loss occasioned thereby.</p>

The defendent, in an action on the case against the plaintiff for slander, commenced in Hanover county court, to the declaration in which the plea was not guilty, had recovered ISO pounds damages.

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

<p>Verdict — Bill for Relief Dismissed. — Bill for relief against a verdict dismissed: the motion for a new trial, — the only ground for the interposition of the Court, — having been rej ected.</p>

<p>Wills — Case at Bar. — P. T.’s will, dated 1789, gave and bequeathed ten negroes, naming them, and lands. He then owned neither, tout only possessed part of the land. He afterwards acquired them by the will of his father. Hjold by the H. C. C. and decree affirmed by Court of Appeals.</p> <p>I. Same — Devise of After-Acquired Land*- Validity.— 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>J. Same — Devise of After-Acquired Slaves® — Validity.— 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>Decision of Court of Appeals. — The decision of the Court of Appeals. 1 Wash. 75. seems confined to the lands.</p>

<p>UPON one question in this cause, the court, on the 19 day of march, 1792, delivered this</p>

<p>1. Land — Settlement—Survey—Priority. — 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. Same — Same—Same—Case at Bar. — The plaintiffs had 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. Defendants obtained grants for same land; and the plaintiffs 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. Evidence — Depositions—Lite Pendente Purchaser.— By Chancellor. Depositions may be read against a lite 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 the suit; but say, that had he been a pendente lite purchaser, they might perhaps have been read. See 1 wash. 231.</p>

<p>1. The Chancellor again Reversed. — The Chancellor, supposing that he is following their opinion, again reversed by the Court of Appeals: His remarks thereon.</p> <p>2, Land — Settlement—Survey—Priority—Case at Bar. —11. representedtherightbypriorsettlement, and claimed pre-emption, ü. ¡ represented the claim by survey; part of the land having been surveyed in 1775. B. entered a caveat, and the General Court decided in favor of B., — thereby overruling the Commissioners. B'..filed his bill for an injunction; and before tlic defandents Rad answered It, he procured, In 178(>, a survey and grant embracing the land in controversy. B. filed his bill to vacate them. 'L’he II. O. C., in supposed congruity with 1he opinions of the Court of Appeals, in the cases supra, and between the Loyal and Green-brier Companies, decreed as to the pre-emption in favor of II.</p> <p>Same — Same — Same — Case Distinguished. — Reversal by Court of Appeals; — this case distinguished from Marx and JIamiltons. differently, by Chancellor and by the Court of Appeals. 3 Wash. 13.</p>

<p>Wills — Construction—Devise to Wile for Life with</p> <p>Absolute Power ot Appointment* — Effect.—The words (in 1775) “I give to my wife Ike use and profits of my whole estate, 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, be equally divided betwixt whoever my wife may think proper to make her heir or heirs, and my brother JB. create a fee simple in the wife to one half the estate; just as if he had said, “I give one half of my estate to her and her heirs, and T give the other half to her during life and after her death to my brother.” Ailirmed by Court of Appeals. 1 Wash. 266.</p>

<p>Legacy — Payment in Depreciated Paper Money† — Case at Bar. — A legacy from a father tó a daughter, (payable 100 & within twelve months after August, 1777, and the rest at the discretion of his executors, when it could be conveniently raised from the profits of his estate,) paid in 1778, to her guardian in depreciated paper money, is, by the subsement act of 1781 good, and will be a discharge at the nominal amount, as to both the executor’s and co-legates. 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>Same — Same.—So held by the Court of Appeals; See 1 Wash. 226. The Comments thereon by the Chancellor, who had held otherwise. This case is not in the Chancellor’s volume of Reports, but one of the pamphlets afterwards issued.</p>

RICHARD DRUMMOND by his testament devised as followeth: 4 give and be-queathe to my wife Catharine Drummond the land left me by my father Richard Drummond, lying on Hunting creek, containing 600 acres, including the half of Halfmoon island, during her widowhood; and i also give my said wife the use of my watermill, lying on the head of Hunting creek, during her widowhood, item i give and bequeath unto my daughter Alicia Drummond my abovesaid plantation, lying on Hunting…

TIMOTHY VAUGHAN, the father, in his testament, the 1 day of december, 1759, after devising lands to his three sons David, Timothy, and Henry, and bequeathing some stock and a bed to his daughter the plaintiff Mary, and a gold ring to each of his daughters Sarah and Cate Rably, added, ‘item, give to my wife Sarah Vaughan all my personal estate, and negros, named as follow-eth, Peter, Nat, Thomas Beef, Nancy, Patt, and the use of the plantation whereon i now live, during her…

JAMES BUXTON, seised of lands, part in fee simple, and other part, by the testament of Richard Bennett, in fee taille, in the year 1751, devised the former, called his old plantation, to his eldest son John, to whom he also bequeathed several negro slaves and chatels, and devised the latter, consisting of two tenements, one called Bacons, to his son Thomas, and the other called Jordans, to his son William, and to their respective heirs, the devise to John was without words…

<p>Mortgages — Mortgagor’s Accountability o{ Profits.-†-— A mortgagor, or his devisee, who will not redeem the estate pledged, hut 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. Wills — Execution ot Testator’s Declared Intention Though Contrary to Codicil of Will, — R. J3„ 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. J Iuhd, that this intention should be executed, notwithstanding codicils to his will more favourable to some of the daughters than the rest; and the altered relations of some of the parties. The other points decided were chiefly incident to this.</p> <p>2. Same — Fraud in Procurement. — E. 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>Bonds — Purchase of* — Case at Bar. — Plaintiff purchased of Defendents several bonds due their testator. They agreed that in case any part of said bonds had been paid to certain attornies, said sums should be refunded to tie said purchaser. In a bond given by the defendents 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 malte 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 made the deduction aforesaid. Held, by the H. C. C.</p> <p>1. Same — Same—Same—Right of Purchaser to Reduction. — That the 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 defendants were credited by the-excess. The Court of Appeals, however, allowed the deduction.</p> <p>2. Same — Same—Same—Right of Purchaser to Interest on Sum Received by Attorneys. — 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 before 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 any months “after the date of the assignment.”</p> <p>3. Same — Same—Same—When Interest on Purchaser’s Bonds Began. — 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. Same — Same—Same—Expenses of Second Powers and Assignment. — 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. Same — Same—Same—Costs.—The defendants being successful except as to one small claim, were allowed their costs in Equity. But denied them by the Court of Appeals.</p> <p>[The appeal does not appear to have been reported. — Ed.]—Note in edition of 1852.</p>

<p>Wills — Construction—Devise of “All Lands in Certain County” — What Passes — Leasehold Lands. — W. A.'s will said: “I give to my son (the plaintiff) the plantation on which I at present live, and all my lands in Kino William, also my land in D. and in J. C., to him and his heirs;” and after other devi-sees 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. IK, 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 Bose «. Bartlett,- Cro. Car. 1, 292, which he here reviews. But the Court of Appeals reversed his decree. 1 Wash. 300.</p>

<p>1. British Creditor — Discharge of Debt — 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>2. Confiscation — Debt Due Enemy. The right to money due to an enemy can not be confiscated.</p>

THE) parties in August, 1778, had agreed, the appellant to sell, and the appellee to buy, the lots and houses of the former in Yo.rk town, for the price, to which they should be valued by three men appointed by mutual consent, and which price should be paid one half at the time of valuation and the other at the expiration of twelve months thereafter.

THE plaintiffs, who were officers in one of the legions, raised for defence of the commonwealth, by an act passed in the spring session of 1781, continued in service, from the time of entering into it, until february, 1783, when they were discharged by the governor, after which time they were not required again to enter into service.

<p>New Trial — Mistaken in Verdict.† — New trial granted for mistake in the verdict: Jurors examined to prove the mistake.</p>

FRANCIS FARLEY and Simon Farley, brothers, british subjects and fathers each of several children, in the year 17SS, bought of William Byrd 26000 acres of land, called the Saura town, or the land of Éden, in Northcarolina, for 1000 pounds of sterling money, the conveyance was to Francis Farley and Simon Farley and to their heirs, they bought also, together with one Francis Miller, several parcels of land, in the county of Norfolk in Virginia, which were conveyed to the three…

BY written agreement, the plaintiffs had bound themselves to convey a parcel of land, when it should be surveyed, to the defendent, and he had bound himself to give his bonds for payment of the purchase money to the sellers at several days of payment. A conveyance of the land, after it had been surveyed, was offered by the plaintiffs to be made to the defendent, upon his performing what by the agreement he was bound to perform, which he refused.

<p>Contract to Purchase Land — Specific Execution* — 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>i. Chancery Practice — Joint Bond — Death of One Obligor — Liability of His Executory‡ — The Court of Appeals, reversing' the decree of the Chancellor, who had decreed otherwise, hbmd (2 Wash. 136,) that if a bond he 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. Aliter, if the money for which the bond was given had heen 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>Statute of Descent — Suspension of Repealing Statute-Effect.* — The section of the statute of 1785-7, that an intestate's real estate shall descend to his children; if none, to Us father; if none, to his mother, brother, and sister, &c.. was enacted in 1702, 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 Acts of 1792, was suspended. By Act of 1789. the mere repeal of a law did not revive a law- which it had repealed. Hn.n, that the section of the Act of 1785. above cited, was not repealed, nor the Act itself, during the suspension of that of 1792. So that,</p> <p>a. Same — Sisters—Brothers.—Sisters could partici pate with their brother in an inheritance.</p> <p>2. Wills — After-Acquired Lands.-† — Lands acquired after the date of a testament could be transferred by said testament if such be the testator’s intention.</p> <p>3. Same — Same.—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>Bonds‡ — Statutory Scale of Depreciation — Application. —The statutory scale of depreciation not applied to a bond in 1777, under the exception allowed by the stat. of 1781;— and the value of paper money during- 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. Lost Military Certificate — Bona Fide Purchaser-Rights of Owner.‡ — R. lost a military certificate, and obtained irom 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 I* was entitled to the certificate, with interest thereon received: or to the principal and interest.</p> <p>2. Chancery Practice. — A court of equity may decree a plaintiff to pay money to a defendant, who had not demanded it by a cross bill.</p>

IN this cause, the question was, whether the right to money, due to a bankrupt, from citizens of this commonwealth, was so transferred to the assignees of his effects that a british subject, who was a creditor of the bankrupt, resident in England, and did not clame any benefit from the assignment, could recover satisfaction for his demand out of that money? upon which the court, the 26 day of September, 1794, delivered this

<p>On the words, ‘provided that there be no representations admitted among collaterals, ’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 0. a deceased uncle, from succession to a part of the goods of A. in the same circumstances.</p> <p>So, if B, and O, 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, or in equal degree of kindred to A.</p> <p>The argument of North, 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>Slaves — Fraudulent Gifts — Statute Does Not Comprehend Delivery in Consideration of Marriage. — The Statute 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>Same — Same—Same—Case at Bar. — A father, upon the marriage ofhis daughter, delivered to her husband certain slaves. Afterwards, by his will, he lent to her husband all the negroes then in their .possession, (with their increase,) for their lives, and after, to be equally divided among her children, if she have lawful issue. The defendent S. was herdaughter. She then married the plaintiff A 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 in S. C. 4 Call. 361.</p>

<p>Sheriffs — Failure to Return Execution at Request of Plaintiff -Liability. — 3X 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, line may he enjoined: and though the answer deny such request, yet the testimony oí 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 execution could be levied.</p> <p>Chancery Practice — Answer†—Weight as Evidence— Oath — Though the answer deny the allegations of a bill, if a discovery be not required, the defendant 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>Fine — Equitable Relief.-‡--Equity may relieve against such a fine, on the principles upon which it relieves against’forfeitures and penalties.</p> <p>Same — Same.—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 appellant B. had pleaded to the jurisdiction or demurred, as was done in Pryor v. Adams, 1 Call, 390.</p>

<p>Wills — Construction—Bequest of Interest on Stock for Life with Power of Disposing of Both Interest and Principal by Will. — 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 he disposed by them to their heirs, in such proportions as they, by their wills, respectively, may direct; and in case of the death of grandaughter S. O. without issue, her- part to grandaughter H. C.”</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, i Call, 305"; S. C. 2 Wash. 74; and decided the same way.</p> <p>[Noth. Bill of review in this case was allowed, March 1796. The decree reviewed and affirmed, ut supra p. 843. 1. 8, 1799; and case taken to Court of Appeals. 5 Call 160. — lid.]—Note in edition of 1852.</p>

<p>Auctions -Employment of By-Bid<ler* — Case at Bar.— The pltif., 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 pltff., 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: oined, a,nd the sale set aside as to the excess of the price and an issue directed, or a reference to a commissioner by consent, to ascertain a fair price.</p>