Volume 2 — Virginia Colonial Decisions

(Pl’t below) It was also insisted that the Entry of the Committitur was only Form and that the Clerk should do it of course without prayer That in England it was the meer Act of the Attorney who enter’d it upon the Roll For the Appellee it was answered such practices would be inconvenient for thereby the Pl’t would be forced to take Execution against the body when perhaps he had rather have it against the Estate.

<p> In Chancery </p> <p>That the Debt tho’ extinguished at Law is Assets in Equity and cited 8. E 4. fo 3. Nichols ag’t Chamberlayne. Nel. 44 S. C. 3. Ch. Rep. Tlud & Rumsey Yel. Phillips ag’t Phillips — 1 Ch. Ca. 292. S. C. Finch 410 Wankford ag’t Wankford 1 Salk. 299. —• Dorchester ag’t Webb 1 Cro: 372.</p> <p>The testor’s intent was to discharge the Debt by making 1. F. Executor as may be Inferr’d from his discourse with I. F. mentioned in his Answer That collateral proof is admitted in Equity to explain a testor’s intention and cited Lady Granville ag’t Dutchess of Beaufort 2 Vern 648 & Id. 593. 736.</p> <p>This rule was also insisted on He that will have Equity must do Equity That the Deft, had a great deal of Equity against the testor upon the several Matters disclosed and sworn in his Answer particularly that about his Wife’s portion and the Land.</p> <p>The Bill was dismist</p> <p>Note it seemed to be agreed by Sr. J. R. that the Debt was Assets which is certainly a clear point And the Courts Opinion as I took it turn’d upon the Matters disclosed in the Deft.’s Answer.</p> <p>Vide Sir J. Randolph’s Argument Def. No. 42.</p>

In Chanc’y. The Defts. Demurred because it appeared by the Complainant’s own Shewing the daughter dyed before twenty one and so the legacy never vested — There is a difference where money is devised to one at such an [34] age or when they come to such an age and where to be paid at such age.

<p>2 Hop. 117 [Note by W. G.] (Hop. 29. in Myers’s Copy) Jeff. Rep. 9. S. C.</p>

<p>Appeal from Essex.</p>

Such a remainder of a personal thing may well be it being upon a double contingencie either of the sons leaving no issue Male at his death Or if there should be after-wards any failure in the Male line The first contingencie being within the compass of a life the remainder on that Contingencie is good & that contingencie has happen’d. Pie agreed the remainder upon the second Contingencie was void And if the Son had left Issue at his death P. L. the remainder man could not…

There being no Proof to this Writing per testes — Or that it is the Testor’s Hand Writing and one of the Witnesses declaring she does not remember signing it This could not be looked upon as a Will Especially if the Declaration after the Birth of a son be considered which strongly implys he had no Will at that Time or at least that he had an Intention to alter it And it is no Wonder the Wife proved it who gained so considerably by it.

393. Stile 482. 1 Ven. 114. 2 Lev. 85. 3 Lev. 18. 1 Vent. 317. Sid. 445. Carth. 131. Trover and Detinue are not the same and greater Certainty is required in Detinue than Trover 2 Salk. 654. But this is certain enough in Detinue All the Certainty requisite is that it may be described to the Jury and known by the Sherif when he comes to make Delivery Co. Lit. 286: b. 2 Bulstr. 308.

Judgments are given here every Day where the Damages found by the Jury are under ;£10. if the Cause of Action laid in the Declaration is for so much and so the Practise was agreed to

s. C. Jeff. 40. By the Act of 1705. Slaves are made a real estate tho’ the Law is now altered by the Act of 1727 with respect to Gifts and Devises of Slaves that they can only be given and devised as Chattels personal. There is however a Proviso in this last Act that where Slaves have been before given for Life and the Remainder thereupon limited to another that such Remainders shall be good in Law to transfer the absolute Property to the Remainder man.

<p>s. C. Jeff 50.</p>

in Canc’. S. C. Jeff. 52. it was insisted that by the Act of the 4. Ann. 23. they were intitled to a Share of the Value their Father being intestate as to these Slaves. it was said that there was an Exception in the act of the Widow’s Dower the Value of which was not to be divided among the younger Children And that these Slaves were intended by the Testator in Lieu of the Widow’s Dower and therefore not to be divided. And of that Opinion were the whole Court.

in Canc. This is a joint Devise And so all the Legatees equally interested It differs from the Case of Tucker v Tucker’s Ex’ors (post page) Here are not the Words equally divided and the Children here are described by .their names which they were not in that Case Where the Law determines the Force and Operation of a Devise the Tes’tor’s Intention is not to be enquired into That is only to be recurred to where the Words are ambiguous.

<p> In Ejectment. </p>

<p>S. C. Jeff. 58.</p>

<p>S. C. Jeff. 59. Mercer.</p>

<p> Et Econ. In Chanc. </p>

Jeff. R. 62. S. C. The end of this Bill is to repeal an Act of Assembly Equity cannot Decree ag’st an Act of Pari.

In Canc. I apprehend it to be pretty clear from the Words of this Clause that the Tes’tor intended Mr. Walker’s Children should stand in the place of one person from the manner of his expression for why should not he have named them particularly as he does the Cookes & Tuckers if he designed each of them the same Share But when the whole scope of the Will is considered The Answer [95] of Boush one of the Defts. who wrote the Will & other Circumstances attending this Case I…

In Canc. The points in this Case are two 1. Conv. being more or less whether we can have remedy for deficiency. 2. Estate given to Defts. before eviction whether subject to Plt.s Demand If these in Plt.s fav’r 3. How far Plt.s loss & Estate in Defts. hands are ascertained. 1.

<p> Lessee App. from Glo’ster </p>

only argued the first point which being adj’d ag’st the Deft, he would not argue the second The Obj. above was not mentioned

It was not insisted that this was to be regarded as the Kings Debt But he insisted the Undersherif was no more [152] than a Servant and cited Dalt. Off. Sher. That if a Serv’t is sent to receive Mony & gives a Discharge without receiving it that Discharge shall not bind the Master That it was a gen’l Rule a Master was not bound by the Act of a Serv’t if the Serv’t did not pursue the Authority given by the Master And cited Doctor & Student Dial. 2 c. 42. p. 258. 6. Mod.

insisted upon 2 Points 1. That the Lessor of the Pit. was a Bastard 2.

sayed the Question was whether the 2 or 3 Grant were good That where an Estate was granted upon Condition tho’ the Condition was broke the Estate continued till Entry oí the Grantor And where an Entry was necessary in the Case of a Subject an Office was so in the Case of the King Therefore that the Breach of the Condition of the first Grant must be found by Office before the Estate of the first Grantee was determined That it did not appear in this Case by any Proof that the…

<p> Appeal from Stafford </p>

<p> App’l from Nansem’d </p>

shall not have their Age. Apr. 1736. Note the Court seemed to think if the Heir had any Lands by Descent he ought to have shewed it in his Plea And then as to that the Parol ought to demur but not for the whole The Devisees in that Case ought to answer & the Heir too as to the Land devised. See 1. Danv. 263. 3.

<p>App’l Richmond</p>

Canc. Survivorship has no Foundation in natural Justice The Reason why it takes Place at Law is from an implied Consent but that is not sufficient in Equity Besides here the Implication is destroied by Beverley’s Will which shews it was not his Intention Survivorship should take Place Suppose a Man sho’d lay out his whole Fortune in a Purchase with another jointly & die Would it not be a most cruel Determination to send his Posterity a begging & let the Survivor run away…

Ante 179 S. C. The Matter of this Plea is a good Cause of Abatement & well enough pleaded If the Devisee is such a one as ought not to be sued it comes properly on the Pits. Part to shew that by Way of Repl. But the Deft, is too late to plead this Matter after a former dilatory Plea & Judgm’t quod respondeat ouster. And so Judgm’t was given that the Deft, sho’d answer further

<p>In Debt on Bond ante 146.</p>

It was argued that if a Man lay open to an Action or if the Damnification was certain & inevitable an Action would lie before actual Damnification That the Wifes Title was lying out & she would certainly recover And it would be inconvenient that they should wait till the Wife sued because in the mean Time the Estate might be all administered The foil. Cases were cited Bush a Ridgley Cro. El. 264. 5 Co. 24. Broughtons Case 3 Bui. 233. Abbotts a Johnson & Sr. Antho.

<p> Deft, in Cane. </p>

was cited Greenvelt a Burwell 1 Sal. 396. w’ch Case proves nothing but w’t is admitted in the Argum’t above & rather strengthens than invalidates it Yet Judgment was given for the Deft. October 1739. by a great Majority of the Court To the Cases above cited for the Pit. may be added Rex vs Chandler 1 Sal. 378. A Summary Conviction ought to be construed strictly so as to shew the Fact an Offence within the Act because the Subject is deprived of a Trial per Pares.

Tf we were in a Case of Lands the first Part of the Devise would create an Estate tail without all Question & would need no Assistance from the subsequent Clause to make it so by Implication.