Volume 4 — Munford's Virginia Reports

<p>SOON after the case of Hunter v. Fairfax's devisee (reported in 1 Munf. 218—238,) was decided, the appellee Martin, obtained a Writ of Error from the Supreme Court of the United States, requiring the Court of Appeals of Virginia to certify the record for re-examination by that Court. The Honorable William Fleming, President of this Court, complied with the writ by certifying a transcript, “ imfirovidently,” as was afterwards decided by himself as well as the other Judges. The Supreme Court of the United States took cognizance of the case, and, having reversed the judgment, Issued a mandate in the following words :—</p> <p>United States of America, ss.</p> <p>The President of the United States to the Ho- ^ nourable the Judges of the Court of Appeals in and for the Commonwealth of Virginia, Greeting:</p> <p>Whefeas lately in the Court of Appeals in and for the Commonwealth of Virginia, in a cause wherein Timothy Trytitle, Lessee of David Hunter, was plaintiff and appellant in said Court, and Philip Martin, heir at law and devisee of Denny Fairfax, deceased, was defendant and appellee, in a plea of ejectment, (the same being an app'eal from the Court held for the District then composed of the counties of Frederick, Berkeley, Hampshire, Hardy and Shenandoah,) the said Court of Appeals did, by judgment of said Court, reverse and annul the judgment of the said Couit for the District composed of the counties aforesaid, with costs; and did give judgment for the appellant in the said Court of Appeals, against the said appellee, and the costs of the said appellant in the said District Court: as by the inspection of the transcript of the record of the said Court of Appeals, which was brought into the Supreme Court of the United States by virtue of a Writ of Erroi*, agreeably to the Act of Congress in such case made and provided — fully and at large appears.</p> <p>And whereas in the Term of February, in the year of our Lord one thousand eight hundred and thirteen, “ the said cause came on to be heard1 in said Supreme Court, on the said transcript of the record of said Court of Appeals, and was argued by counsel; on consideration whereof, this Court is of opinion that there is error in the judgment of the Court of Appeals in and for the Commonwealth of Virginia ; it is therefore adjudged and ordered, that the judgment of the Court of Appeals in and for the Commonwealth of Virginia, in this case be, and the same is hereby reversed and annulled, and that the judgment of the District Court of Winchester be affirmed, with costs; and it is further ordered, that the said cause be remanded to the said Court of Appeals in and for the Commonwealth of Virginia, with instructions to enter judgment for the appellant, Philip Martin” — and the same is hereby remanded accordingly. — -You therefore are hereby commanded that such proceedings be had in said cause, as according to right and justice, and the laws of the United States, and agreeably to said judgment and instructions of said Supreme Court ought to be had, the said writ of error notwithstanding. Witness the Honourable John Marshall, Chief Justice of said Supreme Court, the first Monday in August, in the year of our Lord one thousand eight hundred and thirteen.</p> <p>E. B. Caldwell,</p> <p>Clerk Supreme Court U. S</p> <p>The question, whether this mandate should be obeyed, ex - cited all that attention from the bench and bar, which its great importance truly merited ; and, at the request of the Court, was solemnly argued by Leigh and Wirt, for Martin, devisee of Fairfax, and by Williams, Nicholas, and Hay, ou the other side. (1) The great abilities manifested in this argument on both sides, occasion particular regret, that, in consequence of its extraordinary length, (for it occupied no less than six days of the Term,) the Reporter is compelled to omit it.</p>

In an action on the ca.se for a malicious prosecution for theft of a mare, the defendant pleaded, “ that he was well justified, and had sufficient grounds of suspicion, because the plaintiff took and led away the mare, mentioned in the plaintiff's declaration, from the defendant’s plantation, in the absence of the defendant, and concealed her, the said mare, and this he was ready to verify.” Issue was joined; and, a jury being impanelled, the whole of the evidence on both…

<p>Pleading and Practice — Several Pleas — General Replication— Effect, † — If the transcript of a record states that the defendant tendered “a plea in writing,” in hsec verba, (setting forth five pleas :)— “to which said, plea the plaintiff replied generally, and issue was joined between the parties;” this should be considered a general replication to all the pleas; and a repleader ought not to be awarded.</p>

THE declaration in this case contained two counts, the first of which was in the following words ; “ William Fou- . dice complains of John Blanks, m custody, See. of a plea of trespass upon the case; for, that whereas one Thomas Hooper, on the 27th day of July, 1801, at the county aforesaid, made his note in writing called a promissory note, to one Hugh Wyllie, and thereby promised to pay to the said Hugh Wyllie, or order, on or before the first day of Decembcr then next…

Upon an appeal from a decree of the Superior Court of Chancery for the Richmond District. Chancery for the Richmond District. The bill was filed for the purpose of obtaining specific performance of a written agreement, not under seal; in the following words; viz. “In the year 1766, Richard Farrel made his last will and testament, which was after his decease duly recorded.

<p>abated by the death of Land, the plaintiff; a sub fiama scire After the decision of the Court of Appeals, dismissing (as having been improvidently allowed) the bill of review exhibited by Ellzey against Lane, (see 2 LI. is? M. 394,) the of the Court of Chancery intended to have been re'dewed, (the date of which was May 26th, 1801,) being interlocutory, and not carried into effect; and the suit having ' to revive it was awarded, on the motion of Sally Lane his executrix; — which being returned executed, the defen¿ant jmzey appeared, on the 20th of February 1810, for the purpose of shewing cause against the revival, and tendered to the court a plea of the statute against usury; — charging that, from the scope of the bill originally filed by the said Lane, and the deed of mortgage attempted to be enforced thereby, it was manifest that the contract was usurious. It J appeared from that bill, and the deed with the endorsement uPon 'b that, on the 9th day of November 1799, Ellzey conveyed to Lane 475§ acres of land,'for tfie sum of four hunbred and seventy-five pounds, fifteen shillings; and Lane agreed that if the said Ellzey would, within, or at the end of, six weeks from that day, pay to him the said sum of monev with legal interest on the same, and the rent for that year, amounting to forty pounds, he would give up the said ^ (1)</p> <p>The chancellor refused to receive the plea, but on the . , following terms; — “namely, that the defendant pay to the Plaintiff, in twenty days from this day, the costs expended by her and her testator, as well in the court of appeals as tbi* court, in defending the suit brought by the defen¿ant for the purpose of reviewing and reversing the decretal order passed in this cause the 26th day of May 1801— and ordered that, if the said costs be not paid accordingly, this suit, and the proceedings therein had, stand and be revived in the name of the present plaintiff, as an act of this day, and be in the same plight and condition as at the death of her testator.</p> <p>The costs above mentioned were not paid by Ellzey. The mortgaged premises were afterwards sold, and a final decree confirming the sale was made on the 6th of February 1811; from which Ellzey appealed.</p>

Sali.y Pulliam, executrix of Jennings Pulliam, who was executor of John Anderson, brought an action against the appellees, in the County Court of Louisa, on a bond executed by them to the said Jennings Pulliam, executor of John Adderson, for a sum of money, “ to be paid to the said executor, his heirs, executors, administrators, or assigns.” The defendants pleaded, “ that the plaintiff ought not to have and maintain her said action, &c., because they say, that a certain John…

<p>i. Joint Executors — Bond by One — Suit on.* — If one of two executors take a bond to himself as executor of the testator (without mentioning' the other,) his executor may sue upon it, notwithstanding the other executor survived him, and acted as such, and gave no assent to the institution of the suit.</p>

<p>1 A declaration in detinue, insufficient, to supporttheaction, if it omit to state that the slave m T.icm op/.ono'P.d. tion belonged to, or was the property of, the plaintiff: and such defect^is verdict!°f</p>

<p>THIS was an action upon the case, in behalf of the Eocecutors of Charles Webb, deceased, against Joseph Jones Monroe, clerk of the District Court of Northumberland, for misconduct in office, to the injury of the testator of the plaintiff, in his lifetime. The declaration contained a charge, that a judgment was obtained by the testator in the said District ,, , . . Court, against James Williams, administrator of Le roy Peachey, and execution issued thereon from the Clerk’s Office, on which execution two endorsements in writing, were made by the said clerk himself, or by his privity or consent, the one dated April 13th, " , giving a credit for 201. 2s. 8d. as received in part thereof by Charles Webb, and the other crediting the same, January 1790, “by 13 acres of land, at 40s. per acre, 261. —“by reason of which said endorsements, credits were allowed to the said administrator, named in the execution aforesaid, to the full amount of the ’said endorsements ; whereby the plaintiffs wholly lost such part of the said debt, and interest thereon, to be computed from their respective dates till paid, after the rate of five per centum per annum.”</p> <p>The defendant not appearing-, a common order was entered against him, and writ of enquiry awarded, which was afterwards executed, a verdict found, and judgment entered for 881. Os. 8d. damages and costs.</p> <p>To this judgment a writ of supersedeas was awarded by this court; and a judgment having been obtained by the plaintiff, upon a forfeited forthcoming bond, another writ of supersedeas was issued, to stay proceedings on that judgment also.</p> <p>(among other observations) contended, that no cause of action was stated in the declaration. It was not said that the endorsements on the execution were improperly made, or that Peachy’s administrator was not entitled to the credits. It does not appear, therefore that any misconduct is charged against the clerk.</p> <p>But if the declaration were sufficient, this action is not sustainable ; being for a tort, and in behalf of the executor of the person who sustained the injury. The general rule is that “ actio personalis moritur cum persona.” Lord Mansfield (in Hambly v. Trott, Cowp. 375,) has been ingenious in introducing exceptions to this rule ; but none of them extend to a case like the present.</p> <p>The declaration sufficiently charges & loss to the plaintiff by the defendants misconduct. At least it is good after verdict; and, by our act of JeoffaiIs,(a) a verdict upon a writ of enquiry is equally effectual, to cure defects in the proceedings, with a verdict on issue joined, it is enough for the plaintiff to say that his testator obtained a judgment, and that he lost a part of it in consequence of the endorsements made by the clerk. The jury found, by their verdict, that the plaintiff had sustained damages to that amount.</p> <p>As to the second point, I believe it will be found that the clerk and his executors are made responsible for his official misconduct. No principle in the books warrants the position that, in a case of this sort, the action does not survive.</p> <p>It is not sufficient to state that the plaintiff' lost the money by means of the endorsements : — it should have been stated that they were made improperly and without authority. The latter allegation is not included in the former. The gist of the action is therefore not substantially stated.</p> <p>Wherever there is any exception to the common law rule, that actions for torts die with the person, such exception is introduced by statute. So an act of assembly was necessary to authorize an action against the executor of a sheriff for an escafie.(b) But there is no such act in relation to clerks 0f ^ J courts. I admit that where the action can be brought quasi ex contractu, as in Humbly v. Trott, Cowfi. 375, and Williams v. Breedon, 1 Bos. & Pul. 329, the party may recover against the executor ; but the case is otherwise where the declaration is in form for a tort.</p>

in an action of debt, on a single bill bearing date the 16t^ APril l80?> for the sum of § 300, payable the 16th of January ensuing; interest was not demanded in the declaration, nor promised in the specialty. A judgment was entered in the clerk’s office, and confirmed, against the defendant for § 300, with legal interest thereon, from the 16th Qf january jggs • — to which a writ of supersedeas was award? J * ed by a judge of this court.

This was a suit in Chancery in behalf of Polly Webb, an infant, by John Webb, her next friend, claiming a legacy bequeathed by the will of John Smith, against Thomas R. Rootes administrator de bonis non. No answer was filed by the defendant.

<p>Jacob Johnson filed his bill in the Superior Court Chancery for the Richmond District, against the adminisJ trator and heirs of William Ronald deceased, for the purpose of obtaining conveyances for two tracts of land, in conformity with a contract between the complainant and the said Ronald in his lifetime ; which lands the complainant alledged, he had purchased at five dollars per acre, and fully paid for by 1 sundry work done as a carpenter, and other services renderv ed to the decedent, who had put him in possession of the lands but failed to execute deeds. The administrator demurred to the bill, as containing no equity on which a decree against him could be founded. The other defendants denied the contract, although they admitted a letter from. Willaim Ronald to the complainant, (exhibited with the bill,) to be authentic ; contending that the language of that letter did not import any obligatory bargain. They also alledged {but did not prove) the possession of the plaintiff to be tortious ; and, farther, said, “ they were advised that, if any agreement ever was made by their late father to sell any lands, part of the Beaverdam tract, to the complainant, such agreement could have no validity, not only because the said tract was'under a prior mortgage (1) to Thomas Jefferson, Esq. but also because such agreement, if ever made, was a mere verbal agreement, and therefore null and void under the act of assembly entitled an act to prevent frauds and perjuries.”</p> <p>The letter relied upon by the complainant, as evidence of the bargain, was in the following words.</p> <p>\Oth July, 1793.</p> <p>Sir,</p> <p>Mr. David Jv’owlan has my note for a sum of money, fifty pounds or thereabouts, which was paid by you into my hands. I then expected, and have ever since understood, that, if you and myself concluded a bargain for a part of my Beaverdam land, that the money then paid should be considered as in part for the land ; and, having since concluded to let you have a portion of it, I wish to take in the note of hand, and give you a receipt for so much in part payment. When you get to work for me on Beaverdam at my plantation, I will aid them, and have the land laid off, and shall be ready to make you a deed according to contract. I expect to lay off twenty-five acres for you joining old Mr. Nowlan, according. to our first agreement, and one hundred and fifty acres or thereabouts, according to our second agreement. I will produce you the platt of the land, and my meaning is to lay it off in such a form as to make it as compact as I can, and to suit the remaining part of my tract; in the mean time, please to apply to Mr. Norland for my note, and evert/ thing shall be profierly settled.</p> <p>I am, Sir, your humble servant,</p> <p>Wm. Ronalb.</p> <p>It appeared in evidence, that the complainant obtained an assignment to himself of the note to David Nottilan, July 3d, 1805 ; (which was after this suit was instituted ;) and it was proved by one witness, that the sum which Ronald verbally agreed to take for the lands was five dollars per acre. It also appeared that the plaintiff was in peaceable possession of those lands in Ronald’s lifetime.</p> <p>The Chancellor referred the accounts between the parties to a commissioner, who reported the sum due the complainant, for work done for the decedent, as amounting to 367/. Is. 1 Od. on the 31st of December, 1792 ; and his report, to which there was no exception, was confirmed. The decree was, that the administrator, out of the assets in his hands, do pay the balance so appearing due to the plaintiff’, with interest upon 344/. 19s. 8d. part thereof from the 31st of December 1792, until payment; and that the bill, as to all other matters,be dismissed.</p> <p>From this decree the plaintiff appealed.</p> <p>The casé was submitted by the appellant’s counsel without argument ; and no counsel appeared for the appellees.</p>

<p>I. Executors — Decree for Payment of Legacy — Refunding Bond.† — It Is error, though the bill be taken for confessed, to decree against an administrator de bonis non, that he shall pay a legacy, without requiring the legatee to give bond and security for refunding his “due proportion of any debts, or demands, which may afterwards appear against the estate of the testator; and the. costs-attending the recovery thereof.”</p> <p>See ¡Rev. Code, 1st vol. ch. 92, sect. 51, p. 166; Clay v. Williams, 2 Munf. 129; and Stovall’s Executor v. Woodson and wife, Ibid p. 303.</p>

Taliaferro, Stuart, & Co. brought their action of assumpsit uPon an account for goods, &c. sold and delivered to Henry Jeter.

These two causes were heard together in this court, as well as in the court below. filed her bill in the Superior Court of Chancery, for the Richmond District, in May 1805, against the executor and two legatees, of one of whom the executor was guardian, demanding her distributive share of the personal estate, and dower in the lands and slaves of the testator, who died in March 1804.

<p>IN an action of debt on a bond with collateral condition, the writ, (which, by the defendants’ praying Oyer, was spread Pn the record,) was against Charles Lynch, Anselm Lynch, j0;m Lynch, jun. Charles L. Terrall, and Sarah his wife, s J formerly Sarah Lynch, heirs and representatives of Charles. Lxjnch, sen. deceased. The declaration complained of Anselm Lynch, John I^ynch, jun. and Charles L. Terrall, and Sarah his wife, heirs at law of Charles Lynch, sen. deceased ; chargjn„ t)le bonci to have been executed by the said Charles 1 ° ■ J -Lync/h sen. who, ia his life-time, was co-obligor with Charles Ai/rccA, jun.; that the said Charles Lynch, jun. had, long preyious to the institution of this suit, removed himself out of ... state, and the jurisdiction of the court; that Charles LVnc!l the elder, had failed to comply with the obligation and condition of the said bond, and had died, leaving the said Anselm Lynch, John Lynch, jun. Charles X. Terrall and Sarah his wife, his legal heirs and representatives, &c.</p> <p>The writ was returned, “ executed on all but Charles Lynch, who is no inhabitant of my bailiwick.”</p> <p>The defendants pleaded that Charles Lynch the younger, and Charles Lynch the elder, had not broken, but performed the conditions of the said writing obligatory, 8cc. They farther pleaded, that, at the time of suing out the original capias in this cause, no lands, tenements or hereditaments had descended to them, from the aforesaid Charles Lynch . . the elder, their ancestor. Issue was joined ; whereupon a verdict was found for r.he plaintiff, for the debt in the declaration mentioned, to be discharged by the payment of 831/. damages, with legal interest thereon, from the 3d day of April 1795, till paid ; and that no assets had descended to the defendants out of which the debt could be paid-</p> <p>Judgment was entered, payable when assets should come to the hands of the defendants ; from which the plaintiff appealed.</p>

<p>1. The plain tiff in assumpsit cannot recover without setting forth, in his declaration, a consideration to support the promise.</p> <p>2. A written agreement, not under seal, to deliver bonds to a certain amount, mus; !>e considered nudum pactum, if no consideration for the contract be stated on it's face or disclosed by testimony.</p> <p>SeelJtoc. 112. fHllson’s editionJ and the cases there cited.</p>

AFTER the decree of the Court of Appeals in the case of Hook V. Moss, reported in 1 H. and M. 310, sundry proceedings took place in the Superior Court of Chancery, for the purpose of carrying that decree into effect. An order was made on the 5th of September 1807, that the defendant Hook, r should, on or before the 5th day of December ensuing, render before a commissioner, the schedule, inventories, and accounls required thereby, to be examined, stated and settled , . . ,.

Qn tjje 3d day of November, 1801, Charles Yates sued « out of the Clerk’s Office of Fauquier County Court, a scire facias . . , . , . . revive a judgment m his favour against William Pickett, bearing date the 25th of March, 1788. The scire facias being returned executed, the revival of the judgment was entered at Rules, but set aside at the Quarterly Court, in March, 1802, upon the defendants’appearing and pleading nul tiel record.

On the 3d day of November, 1801, Charles Yates sued “out of the Clerk’s Office” of Eauquier County Court, a scire facias to revive a judgment in his favour against William Pickett, ^bearing date the 25th of March, 1788. The scire facias being returned executed, the revival of the judgment was entered at Rules, but set aside at the Quarterly Court, in March, 1802, upon the defendants’ appearing and pleading nul tiel record.

Jon~ PRESTON, one of the executors of 4danz Wall, filed his bill in the Superior Court of Chancery for the Staunton District, against the appellees, stating that Wall was security for the administration of C~atharine' Grca.roin, and Ja2nea Elliott, on the estate of Robert Gressom; that, in November 1797, Elliott produced to Montgomery County Court his ac~ counts, as administrator, which were examined and approved~ leaving him a creditor of the estate the sum of 321. l7~.…

<p>*• fend himself a-shewing that,. Defore he had notice of the ^ over the assets of tíeteSaion</p> <p>GCTSee Hum.. letj v. Lambert± i Wash. 312.</p>

The declaration in this case, being uncommon, is here “ Cumberland County, to wit;— u William L. Morton surviving partner of Quin is’ William L. Morton complains of John Daniel, in custody, See. of a plea, for this, to wit, that, whereas a certain Samuel Price, in his lifetime, to wit, on the 15th day of May 1799, at the parish of —-in the county aforesaid, was indebted to the said Quin is’ William L. Morton in the sum of 45/. 5s. 9d., with interest from the day and year…

THIS was a suit in the Superior Court of Chancery for the Staunton District, in behalf of the executors of Battaile Muse against Ferdinando Fairfax and others, to foreclose the equity of redemption in certain lands mortgaged by Fair-fax to Muse in his life-time.

Samuel Spencer and Thomas White exhibited their bill in the County Court of Loudoun, charging that the complainant Spencer purchased of Patrick Cavan, agent of William Wilson, a tract of land known by the name of Scotland Mills, for twelve hundred pounds ; that a deed was to be made on the payment of 600/., and three bonds were given to secure the balance, in annual payments of 200/. each ; that he paid the 600/. to Cavan, and received from him the deed executed by Wilson;…

<p>1 J.M. hav ing the equitable title to a tract of land, sold it to I. P. and received of him part of the price, but finding some difficulty in getting the balance, he made another sale of the same land to J. II. upon condition that he would advance that balance, and give I. P. six months to pay it to him; in which event, I. P. was still to have thd land; otherwise it was to belong to J. H. The contract so made was approved by I P. who accordingly promised to pay the money to J. H. and, soon after the contract, moved off the land, of which J. H. then took possession. This was adjudged to be ^mortgage on the part of I. P.; and that a court of equity should allow him to redeem, notwithstanding he failed to pay the money within the six months; he not having treated with J. H. for a sale of his title, nor entered into any discussion with him concerning the adequacy of the sum alleged to have been intended as the price, or consideration thereforand the said land being so far more valuable than the said consideration,' as to leave no doubt that the contract in question was intendedto create a penalty'or pledge to ensure the punctual payment of the money.</p> <p>5j= See Eng v. Newman, 2 Mtmf. 40, and the cases there cited.</p> <p>2. If a person having the equitable title to a tract of it^an^afte? wards sue for of the lega"th tle; (themortgagee being a party to the ouglit^no""to decree a conou^hoMinig the land ultimately bound terest. to satisfy the mortgage, and to be sold to raise the money due, with in-</p> <p>3. A decree cannot be made against a widow, (restraining her from conveying her right of dower,) in a suit to which she is not a party as widow, but only as administratrix of the decedent, and guardian of her children.</p> <p>4. The heirs of a vendor, retaining the legal title to the land, ought not to be decreed to make conveyance with general but with special warranty: neither ought they to be compelled to pay costs.</p>

<p>This was an action of detinue for several slaves in behalf of Joel Meggs against Charles Boatright. Plea non detinet and the acf of limitations. At the trial, M the defendant introduced a witness, who said that the defendant had been in possession for. upwards of seven years, and that, during that time, the plaintiff had brought to the defendant’s house one of the negroes who had run away, and then said he had given the negroes to the defendant’s wife ; and the defendant moved the court to instruct the jury that, if they should believe that the plaintiff did say that he had given the negroes to the defendant’s wife, they should find for the defendant. The court refused so to instruct the jury; but instructed them that if, from the evidence, they should believe the plaintiff had given the slaves to the defendant, they should find for him. The plaintiff proved the delivery of the negroes, in the declaration mentioned, to the defendant, to remain in his service till the plaintiff should call for them¡ and then to be returned ; that they remained in the possession of the defendant for about fifteen years uncalled for, and were then called for by the plaintiff, some short time before the institution of this suit, when the defendant refused to deliver them; whereupon the defendant moved the court to instruct the jury that the possession aforesaid was adverse, agreeably to the pleas and issues in this cause; but the court instructed the jury that the said possession, which was acquired under an agreed condition at the time, was not to be regarded as an adverse possession, unless the defendant prove circumstances to make it adverse.”</p> <p>Bills of exceptions were filed by the defendant to both these opinions of the court. The names of the slaves in the declaration mentioned were Sarah, Nelly, and Marinda. The verdict was, “ We of the jury do say that the defendant doth detain the slaves in the declaration mentioned in manner and form, &c. to wit, Sarah of the value of 90/., Molly of the value of 75/., and Marinda of the value of 25/.” The judgment was for the slaves aforesaid, in the usual form ; to which the defendant obtained a writ of supersedeas from this court.</p> <p>The court erred in the instruction stated in the first bill of exceptions. It was erroneously drawing a distinction between a gift to the defcndant’s wife, and a gift to himself; leaving a doubt on the minds of the jury, whether a gift to the wife, and a gift to the husband were equipollent. The court should not merely have negatived the proposition of the defendant, but should have said that, if there were proof of a gift, either to the wife, or the husband, it would be sufficient.</p> <p>2. The court ought not to have instructed the jury that the gift was conditional.</p> <p>3. The verdict is for a slave not named in the declaration. The allegata and probata must agree in all cases, and especially in detinue, in which the specific thing is to be recovered. If a verdict varies from the issue in a matter of substance, it is had.(a) And this defect is not cured by the act of Jeoifails,(b) which only provides for the case of an omission to find as to part of the slaves. The finding for the plaintiff a slave not demanded in the declaration must be a fatal error.</p> <p>4. The jury have said nothing as to the issue on the plea of the act of limitations, but only as to that on non detinct. A -venire facias de novo ought therefore to be a warded.(c).</p> <p>The circumstance that the name of Molly, instead of Nelly, is inserted in the verdict is evidently a mere mistake of the clerk. The Jury have found the slaves in the declaration mentioned. If they had said nothing more, that would have been sufficient.</p> <p>The first instruction requested was too broad; — that a mere declaration by the plaintiff that ho had given the slaves, (however confronted by circumstances,) was conclusive. The Judge has only said that the jury were to consider all the circumstances . it would have been error if he bad told them what verdict they were to find; he could not decide on the weight of testimony, but only on principles of law.</p> <p>The gift was expressly upon a condition, which constituted the defendant trustee for the plaintiff. The act of limitations could not run, since no adverse possession appeared. The defendant requested the court to instruct the jury that conditional possession was to be considered adverse or-hostile. In Smith vs. Walker, 1 Call, 29, this court consider» ed the statement in the bill of exceptions, “ that the testimony contained in it was all the evidence in the cause, except what proved the bond paid,” conclusive to shew that such other testimony was adduced. So here, the parties themselves have stated in the bill of exceptions that the plaintiff proved the delivery of the negroes to the defendant on a certain condition. The Judge has not decided the facts, but only referred to the testimony.</p> <p>The case of Garland vs. JBugg, 1 JL & M. 374, is a sufficient answer to the fourth point of Mr. Nicholas. The plea here is non detinet: it has been again and again decided, that adding the plea of the act of limitations is unnecessary in detinue.</p> <p>The plea of non detinet does not necessarily involve that of the act of limitations. That plea having been put in separately, must be disposed of.</p> <p>The verdict for Molly instead of Nelly is a fatal error The object of the declaration is to give notice to the defendant of the slaves claimed. The plaintiff cannot recover a different family, or distinct slaves. There has been no suggestion of diminution or error in copying this record A venire ele novo cannot be awarded for Nelly, the slave omitted ; because the act of assembly declares that the plaintiff’s right to a slave omitted in the verdict shall be barred. Neither can judgment be entered for Molly, the slave inserted ; because the jury had nq right to find a slave not demanded in the declaration.</p> <p>■ Judge Brooke suggested that, as the error was only in the recital of the names after saying “ we find the slaves in the declaration mentioned,” it might be corrected, there being something to amend by.</p> <p>The jury may have been told that the plaintiff in his declaration meant Molly, though by mistake he had planned Nelly; and their verdict may have designedly va= ,’ied from the declaration for that reason: if so, they attempted to correct an error committed by the plaintiff or his counsel, which they had no power to do. A verdict cannot be amended by reference to the declaration, but only by the minutes.</p>

<p>An action on the case was brought by James Hoge against Daniel Trigg, in the Superior Coon of law for Montgomery County. The declaration charged, for that the plaintiff and defendant on the-day of November 1806, at the County of Montgomery aforesaid, and within the jurisdiction, &c. fiac( and held a conversation together, and it was mutually agreed between the said plaintiff and defendant, as he the said defendant was then commissioned high sheriff of the County of Montgomery aforesaid, and had entered into the bonds, and taken the oaths prescribed by law, as the high sheriff of the said county, that the said plaintiff should qualify and become the deputy of the said defendant, for the time that he the said defendant should continue in office under his then commission; and it was agreed that the said plaintiff should have and receive all the profits, fees and emoluments that should arise from the said sheriffalty, on the north side of the great waggon road leading from Wythe , Court house by Ingle s Ferry to Richmond ; that being the Part sa^ county in which the said plaintiff was to act as deputy sheriff; and for the fees and profits of the said sheriffalty, during the continuance of the said defendant ip office under his then commission, growing or arising out of , the district above described, the said plaintiff agreed to pay the said defendant the sum of one hundred dollars, and was also to execute to the said defendant bond with security to attend to the sheriffing business in the bounds of the dis-? trjct ab0Ve mentioned, or to indemnify the said defendant in ' ' ' case of neglect or misconduct: and the said plaintiff avers that, in consequence of the agreement aforesaid, he did, immediately, at the November court held for the said County of Montgomery in 1806, qualify as deputy sheriff under the said defendant agreeably to the contract entered into with the said defendant, and afterwards, agreeably to the contract between the said parties, executed bond with security to the said defendant, of the tenor and meaning above set forth, with which bond and security the said defendant was well satisfied ; and the said plaintiff further avers, that he acted as deputy sheriff from November 1806 to June 1807, when the sheriffalty in the said plaintiff’s district was likely to become very profitable, as several large executions were about that time to be put into the hands of him the said plaintiff to collect, and from other demands which the said plaintiff had then in his hands to collect as sheriff. And the said plain - tiff avers, that the said defendant, entirely regardless of his promises and agreement entered into with the said plaintiff, did, contrary to the said agreement, at the June County Court held for the County of Montgomery aforesaid, without the consent of the said plaintiff, come into court and have an order made discontinuing the said plaintiff in his office of deputy sheriff, notwithstanding the said plaintiff was ready to pay unto the said defendant the said sum of money that iie was bound to do whenever legally thereunto required. The plaintiff therefore says, that, in consequence of the said defendant not complying with his said agreement entered into with the plaintiff, and in consequence of his discontinuing the said plaintiff as his deputy sheriff, he is injured and-has sustained damages to the amount of two thousand dollars, and therefore he brings suit.”</p> <p>The defendant pleaded not guilty j and, for further plea, said, “that at the --— day of November 1806, stated its the declaration, it was agreed that the plaintiff should hold, occupy and enjoy the office of Deputy Sheriff, only on condition that he should give to the defendant sufficient security to indemnify him against all possible injuries which he might sustain on account of the plaintiff’s conduct in his official character, to be approved by the defendant; and the said defendant avers that the plaintiff did not give such security as stipulated; therefore, he, on the —- day of June 1807, in consequence thereof, dismissed him from the office of Deputy Sheriff, the defendant being then and there principal sheriff of Montgomery county : and this he is ready to verify; wherefore he prays judgment. — And, for further plea, he says that, on the-day of -- 1807, the plaintiffleft the county of Montgomery, and went to distant parts ; at which time, and during the absence of the said plaintiff, the business appertaining to the office of sheriff in the district of the plaintiff, then very important and pressing, was wholly neglected; wherefore the said defendant, in consequence thereof, on the -day of June 1807, while the plaintiff was absent from his duty, dismissed him from the said office of deputy sheriff; and this he is ready to verify, wherefore he prays judgment, &c. And, for further plea, he says, that between the .-day of November 1806, in the declaration mentioned, and the day on which he dismissed the plaintiff from the office of deputy sheriff as aforesaid, he, the plaintiff, committed divers acts of mal-feasance and impropriety in his office ; to wit, in charging the tithables of the county of Montgomery, their portions of the county levy for the year 180-, sixty cents each, whereas, by the order of the county court of Montgomery, apportioning the county levy, á less sum was demandable ; — in demanding from persons, to wit, from Gordon Cloyd, George Vineyard, Henry Patton, and others, having claims to be paid out of the poor rates and county levy, large discounts, and refusing to make them payment unless such discounts were made ; — in appropriating the public money to private speculation and the defendant, knowing of these acts, did, on the —--day of June 1807, dismiss the plaintiff from the office aforesaid, in consequence thereof: and this he is ready to verify ; wherefore he prays judgment, &c.”</p> <p>The plaintiff replied to the second plea, “ that he did give to the defendant security such as he approved and received, to indemnify him from all possible injuries that he might sustain on account of the plaimiff’s conduct, in his official character as a deputy sheriff ;” — and to the third plea, “ that although he was absent from the county of Montgomery, from the -- day of May 1807, until the day of —- June 1807, yet that he was absent on business appertaining to the said defendant’s office of sheriff for the county of Montgomery, and went to the city of Richmond at the special request of the said defendant, and, while absent, did the business appertaining to the said defendant’s office of sheriff as aforesaid, as well as private business of his own ; and that he the said plaintiff did return to the county of Montgomery aforesaid, on the--day of June 1807, prepared to perform all the duties appertaining to his said office of deputy sheriff, which was in due time to do all the important business appertaining to the said office of sheriff in the said plaintiff’s district; but that the said plaintiff had, previous to that time, to wit, at a court held for the said county of Montgomery, on the-day of June 1807, dismissed the said plaintiff from his office of deputy sheriff; and this the said plaintiff is ready to verify; wherefore he prays the judgment of the court, &c.” To the 4th plea he demurred, and stated, as causes of demurrer, first, “ that the matter of said plea is foreign from, and in no manner connected with the agreement entered into between the plaintiff and defendant, and if true, would not be a sufficient bar to the plaintiff’s action ; —secondly, if the plaintiff had violated his agreement entered into with the said defendant, that the defendant had no right to dismiss him from his office of deputy sheriff, but, if injured thereby, he might have resorted to the said plaintiff for his redress on the contract, and the bond executed to the said defendant in consequence thereof; — and thirdly, that the said plea is not responsive to the declaration.”</p> <p>The defendant joined issues in fact and law, to the plaintiff’s replications and demurrer; whereupon the demurrer being argued, “ it seemed to the court here that the said fourth plea is sufficient in law to bar the plaintiff’s action. It was therefore considered that the said demurrer be oyerruled, that the plaintiff take nothing,” See,; from which judgment he appealed.</p>

<p>This was a bill of injunction, exhibited by Thomas No-land against Margaret Cromwell, to stay proceedings on a judgment in ejectment obtained by her against him in the District Court of Winchester. The grounds of equity . . stated were that, by a fraudulent combination between the said Margaret Cromwell, and a certain Bichard Bigg, (one of the surveyors employed by Lord Fairfax,) she had obiained from the office of the lord proprietor of the Northern Neck, a prior grant for the land in controversy, although . her entry was subsequent to that under which the complainant claimed, and (as he alledged) no survey was made conformably thereto.(1) The answer denied the fraud and combination ; averring that the respondent’s entry was regularly made, after that of the complainant had run out ... r. , , . of date, m consequence or its not having been surveyed within the time prescribed by the rules of the lord proprietor’s r J 1 1 office.; that her warrant actually covered the land in versy ; and that a survey was made accordingly.</p> <p>The late Chancellor Wythe directed that a jury be ... . . pannelled and sworn at the bar of the District Court, holden at Winchester, to ascertain whether any fraud was practised in procuring the entry to be made for the defendant for the land claimed by her ? whether a survey was ever made ? and if so, was it made in pursuance of the warrant, or on lands called for by it !</p> <p>In obedience to this order, a verdict was fouud, “ that no fraud had been practised in obtaining the warrant for the land formerly entered by Philip Noland but the jury said nothing about the survey upon that warrant. Another order was made, “ that issues be made up .between the parties, and tried at the bar of the District Court aforesaid, to ascertain, first, whether a survey was ever made by the defen - dant ; secondly, if so, was it made in pursuance of the warrant ; or on lands called for by it ? the first only of which issues was to be tried, if the plaintiff desired it.” A copy of the record in ejectment, (containing a survey of the lands in controversy, made and certified by order of the District Court, and copies of the several entries under which the parties claimed,) was filed; together with many depositions taken on both sides.</p> <p>The suit being transferred to the Superior Court of Chancery holden at Staunton, came on to be heard the 28th day of March, 1807, when Chancellor Bkowne pronounced the following opinion : “ It appears to the court, that, the jury having found there was no fraud practised by the defendant in obtaining the warrant for the land Philip Noland had formerly entered; and this being the same land, and there being no evidence of .a want of survey sufficient to destroy the certificate of the surveyor Rigg ; the only remaining question arises on the specialty of entry ; or, rather, the correspondence between the entry and the survey. To try the fact, an issue was directed, which has not yet been tried, and which, upon examination of the papers, and of the record in the ejectment now produced, the court is of opinion ought not to be submitted to a jury ; there being sufficient evidence in the record of the said ejectment, and the other papers before the court to lead tó a thorough understanding of the facts. The order directing the trial of the said issue is therefore set aside. And it appearing, from the representation of Philip Noland at the time of his application for the warrant from lord Fairfax, from the certified copy of Rigg’s certificate of survey, executed for the defendant Cromwell, the 25th day of August, 1775, and from the survey in the record of ejectment, that the land surveyed for the defendant Cromwell, is the land called for by the warrant and entry of Philip Noland, and of the defendant Cromwell ; though, at that time, the applicants appear to have been mistaken with respect to the extent of the lines of Haynes’s 140 acre survey, supposing they did not include the Rock Lick, which upon investigation they are found to include :) it is therefore adjudged, ordered and decreed that the injunction awarded, &c. be dissolved, and that the bill be dismissed with costs.”</p> <p>From this decree the complainant appealed.</p> <p>The cause was argued in this court on a preliminary point of law, whether the appellant could have relief in equity on a bill assigning no reason for his not having prosecuted a caveat to prevent the emanation of the patent to the appellee.</p>

<p>1. If a bill in C^tii2Ld *011 the ground that tiie plain» typg c]aim to,- he can-; pendenev of° s’lctl suit 1,1 cnancery, to prevent the tiras°fronTbeing a bar to recovery^at^ law-</p>

<p>Richard E. Beale brought detinue in the County Court of ih'bice William against John Thornton Fitzhugh for a negro woman. The parties being at issue, two trials were had. On the first, a juror was withdrawn : at the second, the defendant objected to the admission of the deposition of a cer- ■ J r Catharine Alexander, it being proved that she was a res^ent the town of Centreville in this state, and the plaintiff failing to prove her inability to attend the court; but the court overruled the objection, because the plaintiff proved that the defendant’s counsel consented that said deposition should be taken, and it had been read at the first trial without cxccp^011 > whereupon a bill of Exceptions was lender-ed and sealed. The defendant also, (without exhibiting any testimony on his part,) demurred to the plaintiff’s evidence, consisting of the said deposition of Catharine Alexander, and of the testimony of another witness, was, in substance, that the negro woman in question was one of the dower slaves of the defendant’s wife, whose daughter, Miss Foote, became the wife of the plaintiff; that, oefore th'e' plaictiff married her, the defendant had given her the said negro woman, upon condition that her brothers Richard Foote • . . and William Foote (m whom the reversionary interest was) would join in a deed conveying to her the absolute title ; J ° , that they promised and agreed to execute such deed, but never and one of them afterwards refused to do so ; that the said negro woman, by consent of the defendant and of . , . „ „ , . Miss Foote, was put into the possession ol Catharine Alexanc¡er t0 use for her victuals and clothes, where she was to re- ’ main until her brother should convey as aforesaid ; that she was hired by a Mr. Grigsby to a Mr. Peake for the benefit of Miss Foote, the year in which the latter was married, and was some time afterwards in the plaintiff’s possession, with whom she remained until Mrs. Beale, about one year after her said marriage, went with her to the house of the defendant, and died there within a month thereafter; from which time, the said negro woman remained with the defendant, who refused to give her up to the plaintiff; that more than five years elapsed from the time of the gift or loan, to that of the death of Mrs. Beale; but that the defendant had a right at any time to take the negro woman away.</p> <p>Upon this demurrer, the County Court rendered judgment for the plaintiff, which being affirmed by the Superior Court of law, and the defendant having departed this life, his administratrix obtained a writ of supersedeas from this court.</p>

<p>1. A Court of E<Iully .ought not to give its aid to a plain-J^er^a^eed of gift from a person who ma<je a previ. ous transfer of the same property to another for the purpose of defrauding creditors; the object of the bill being to enforce a secret trust between su,ch transferor and transferee.</p>

On the trial of an action of detinue for sundry slaves, instituted by the appellants against the appellee, in the Superior Court ol law for Amelia County ; issues being' joined on the pleas of non detinet and the act of limitations; the defendant moved the court to instruct the jury, that, where a testator bequeaths personal property to a legatee, which, at the time of his death, is out of his possession, and to which the representatives of the person then in possession now…

IN this case, (which was an action of detinue in behalf of the appellant against the appellee,) the following case was by the parties; viz. that the negro woman slave in ^® declaration mentioned, was the property of Joseph Jones, senior, deceased, at the’time of his decease, and subject to tiie disposition of his last will and testament, set forth in jl£c verba; the executors appointed therein being James Monroe, Joseph Jones, the*testator s son, and others; that ^ie…

<p>A writ of capias ad respondendum was sued out of the clerk’s office of the Haymarket District Court, in the name of Robert Graham against Alexander Scott, endorsed, “ on an injunction bond as security for Catesby Graham which writ being returned, executed, a declaration was filed in behalf of Robert Graham and George Lane against Catesby Graham and Alexander Scott, in the usual form on a bond for nine hundred dollars ; saying nothing of any condition i,hereto.</p> <p>The “defendant,” by “ his” attorney, [without fraying Oyer,) pleaded “ conditions performed.” A replication was filed in the following words t “ Robert Graham v. Catesby Graham and Alexander Scott. And for breach of condition of the said writing obligatory the plaintiff sheweth the following, to wit, that the said Catesby Graham did not prosecute his injunction with effect, hut the same was dissolved, and the said Graham’s bill finally dismissed, and the said Catesby Graham did not pay all the money and costs due on • the judgment by him injoined, but utterly failed to pay any part thereof,” To this replication the defendant demurred ; “ first, because the same is no answer to the plea as it re- . spects George Lane, one pj the plaintiff s ; second, because it is not set forth in the said replication in what particulars, or in what amount, the said Catesby Graham did fail to pay the money and costs of the judgment by him injoined, and it is not set forthwith sufficient certainty that the said injunction . . ... ever was dissolved.” Ihe “plaintiff' joined m demurrer, On argument the court overruled the demurrer: upon the“ defendant,” by leave of the court rejoined generally to the said replication. A jury being impannelled to try the issue joined, u the defendant by his counsel” filed a bill of exceptions which need not be reported. A verdict was found for the plaintiff for the debt in the declaration mentioned, to be discharged by the payment of 107/. 14s. 3d., with interest from the third of August 1802, and twenty-two dollars and nine cents. “ Therefore it was considered by the court that the “plaintiffs” recover against the “ defendants,” ike. in the usual form, without mentioning their names. And at a Superior Court held, &c. “ came the parties by their attornies, and the deft prayed an appeal to the court o£ appeals from the judgment rendered against him in this cause at the present term, which is granted him, he having, together with Aaron Grigsby his security (approved by the plaintiff’s attorney,) entered into and acknowledged bond in the penalty of one thousand dollars, conditioned as the law directs, for prosecuting the same with effect. ”(1)</p>

An action of debt on a single bill was brought by John Russell, assignee of James Russell, against Jacob Coffman ’ ’ ° ’ b ■ and William Richardson in the County Court of Shenan* doah. The bail for appearance pleaded the “ statute of usury,” for the defendants; to which plea the plaintiff replied generally, and issue thereupon was joined. Jacob Coffman af1 * J ■ terwards filed a special plea, charging the usury larly ; — to which the plaintiff also replied generally.

<p>AN acti°n of covenant was instituted against John Cloud, in the superior court of law for the county of Frederick, by A>er Campbell, administrator of Elizabeth Campbell deceasecL-who was a devisee and legatee in the last will of John Campbell, upon a covenant executed by the defendant and ^le sa^ John Campbell in his life time. The breach of covenant charged was the failing to pay certain rents, and the not keeping in repair the premises demised : The damages laid in the declaration and writ were five hundred dollars.</p> <p>The defendant pleaded “covenants performed,” and “covenants not broken;” to which pleas the plaintiff replied generally. The jury found a verdict for 665 dollars 25 cents damages, with legal interest on 400 dollars, part thereof, from the 18th day of November 1/88, until paid, and the like interest on 265 dollars 25 cents, the residue thereof, from the 11th day of August 1809, until paid; for which, with costs, the superior court gave judgment; whereupon, a supersedeas was granted by this court, on a petition exhibited by the defendant.</p>

<p>^ After the dissolution ofa nicrcHiitilc firm, one of the partners cannot bind the rest without ¡jy^ettfing^c5 counts with, or ¿'tTto^custon'ers of the</p> <p>f a count or sett-off be claimed, only can with propriety be allowed; it is ™ the ant to separate the admissible from the ob jectionable parts: other-should loe jected.</p>

William Bower, executor of Peter Bower, filed his bill in the Superior Court of Chancery for the Richmond district, against George Glendening, and his children, and James Bower, setting forth that Michael Bonder had recovered against him §1391 46, with interest and costs of suit, by a decree of the County Court of Stafford; previous to the rendition of which he had distributed the estate of his testator according to the will; that all the distributees had refunded their…

This was a suit in the Superior Court of Chancery for Williamsburg District, between Miles Riddick and Mary his wife, plaintiffs ; and William Redwood, defendant. . _ From the bill, answer, exhibits and depositions, it appearec*’tliat tlle P'a‘ntbf Mary was the only child of Richard Taylor and Diana his wife ; that he had had a former wife, Mar- , , „ . , . . thai daughter ot a certain James Tyree ; that, on his mtermarr*aS'e w*th the sa*^ Martha, her daughter had given him,…

AN action of covenant was brought in the County Court of Halifax, by Berryman Oreen against James llyburn. The sheriff made return on the writ, “ executed and committed to jail for want of bail,” and also returned “ with said writ a bond,” which was set forth in hcec verba by the clerk in the • e* i , _ _ . ,, . . transcript or the record, and purported to be a bail-bond executed by the defendant, with John Henry, security for his appearance.

_, ~ ON the motion to Hanover County Court, of Patrick Hendren, executor of William Drinkard, who was the husband and administrator of Sarah Drinkard, deceased, for a certificate for obtaining letters of administration de bonis non, of her estate, William R. Colgin, who intermarried with Sarah A. F. Ellyson, one of her children, opposed the said motion, and moved the court to grant the administration to him.

A notice was given on the 12th day of May 1812, by WiU ^am Lan.e, former sheriff of Fairfax County, to William B. Harrison, “ one of the securities” of James Wigginton his for-? mer deputy, that a motion would be made on the first day °.f the next suPerior court of law for that county to fine him, according to law, for the said Wigginton’s failure to return, or deliver to the plaintiff, a forthcoming bond taken by the said Wigginton, deputy as aforesaid, upon an execution…

<p>IN an action of assumpsit, in behalf of William. Buford, (who sued for the benefit of John P. Patrick,) against Henry Buford, the declaration contained a general count for money paid and advanced by the plaintiff for the defendant; another general count for money had and received by the defendant for the use of the plaintiff; and a special count, , , , . . . stating, that “ whereas, also, the said defendant was jointly bound with the plaintiff as security for James Buford to J J Isham Talbott,.the said Isham Talbott had recovered two judgments on the bonds given jointly as aforesaid, in the District Court of the state of Kentucky, held at . . against the said James Buford and the plaintiff, whereupon the .said plaintiff, in part discharge thereof, (the said James r . . ' Buford then and there still being insolvent,) did pay to the said Isham Talbott the sum of 1333/.; whereby the said defendant became liable to pay to the said plaintiff the one half ,. , _ . oi the amount so as aloresaid paid, to wit, one other sum of 6661. 10s. Od.; and being so liable, he assumed, 8cc. nevertheless the said defendant refused, Sec.”</p> <p>Issue was joined on the plea of- non assumpsit. On the trial of the cause, the plaintiff offered in evidence the records of the two judgments rendered in the state of Kentucky 5 which the defendant admitted to be duly authenticated ; “ but to the admission of Which, as evidence, he objected? agreeing that, if the court should be of opinion that they were admissible, the copies- of the bonds therein recited should be of as much efficacy to the plaintiff, as if the originals were produced? and proven to have been executed by the defendant: but the .court overruled the objection, and instructed the jury, that the aforesaid records were conclusive evidence, between the parties in this suit, as to the amount recovered, and the sum that the plaintiff in this cause was bound to pay Isham 'Talbott, the plaintiff in the suits refer-' red to in the said records; and that the defendant should not be.at liberty to prove any circumstances to impeach said judgments, except that they were obtained by fraud} and this he must prove expressly. The defendant also offered to prove, that tsham Talbott, the plaintiff in the said records? and William and James Buford the defendants, in the, year 1796, submitted to arbitrators all their causes of difference, berth of law and equity, (which embraced the causes of controversy in the records aforesaid,) who awarded that the said James and William Buford should pay to the said Talbott, 649/. 18s. Od. in full of all accounts; which the said Talbott was willing to" receive ; but the said James and William taking exceptions to the same, finally had it set aside } and, in the mean time, James Buford became insolvent ,• which proof the court would not permit the defendant to produce to which opinion the defendant filed exceptions.</p> <p>■ The jury found a verdict for the plaintiff, assessing his-damages to 6661. 10s. Od. with legal interest thereon, from the 20th day of July, 1800, till paid, besides his costs : and judgment was entered accordingly ; from which the .defers* dant appealed.</p>

James B. Taliaferro filed his bill in the Superior Court of Chancery for the Williamsburg District, stating Thomas B. Fox, previous to the 17th of May 1803, had become entitled by assignment to three bonds of his, which were payable on.the same day, and carried interest from the 12th day of September 1802; one for 8/. 14s. 0d., one for 110/., and the other for 112/. ; that on the 17th May 1803, the said Fox was pressing him for payment, and, as he could not raise the money,…

IN this case, a bill was filed in the Superior Court of Chancery for the Richmond district, by Edmund Lacy against Francis• West Quarles and others, to subject to the payment a c^mec' by ^be formei', certain-property conveyed by the latter in trust. The bill stated that Lacy had obtained a judgment at law ^ against Quarles, who, being taken on a capias ad satisfaciendum, took the oath of an insolvent debtor.

<p>1. A declaraéioru in slan¿ePj containnig only arastal of slanaerolls wouts, and charge that those words spoken by the ¿efendant, is bed afte verHurd’s executor v£ Moore’s administrator v. Dmmey, 3 II max v. liordy Md. 271; S¡¡me ^ 4 lL Cooker. Simms yyiuston’sexecutor y. asco, 2 ¡Vasn* X87; and Sex-3</p>

<p>THOMAS MOORE, assignee of Andrew Donald, brought an action of debt against Jacobus Early. ' The declaration made aprofert of a writing obligatory under seal, describing it as an obligation in which the defendant acknowledged, that, on a final settlement of his accounts with Andrew Don-aid, he owed him justly the sum of 3271. 4s. id. with interest from March 22d, 1804, “ subject only to a credit for one hogshead of tobacco, delivered in the year 1799.” The defendant pleaded “ payment f but afterwards waved his plea ; whereupon judgment was entered against him for the said sum of money, with interest, ct subject to a credit for one hogshead of tobacco, delivered in the year 1799 without ascertaining the value of the tobacco.</p> <p>To this judgment, together with the subsequent judgment on a forthcoming bond, a writ of supersedeas was awarded by a judge of the court of appeals.</p>

<p>l.One inspec*°r. by the miscon0l]iel>j m.iy bring suit upon the official bond of such his securities.</p> <p>2.0nc inspector embezzled a quantity or transfer tobacledge of the other, who, supposing itio sold it, as di24üTsertí0nof the tobacco law, and paid the money arising from the sale, to the proprietors of the receipts, but, afterwards, discovering the deficiency, refunded to the purchasers the money received of them. It was determined that, for the sum so refunded, he had a sufficient cause pf action upon the bond of his delin. quent co-inspector.</p>

<p>1. It is a set* ded rule of law, that counsel and attornies ought not bo permitted to give evidence of facts imparted to them by their clients, when acting in their professional character. And tilia restriction is not confined to facts disclosed inreiation to suits actually pending, but extends to all cases in which the counsel or attorney is applied to in the lino of his profession, whether such facts were, communicated vi.h an injunction of secrecy, or for the purpose of asking advice, or otherwise ; unless, indeed, the client should seem to vaunt ids disclosures to the public, and, as it were, challenge the by-standers to hear them.</p> <p>2. A licensed counsel, or attorney, employed as such, to draw a deed, must be considered as acting In the line of his profession, and bound to conceal the facts disclosed by the person who employs him.</p> <p>3. The same rule applies to interpreters acting as the organ of communication between the client and his attorney.</p> <p>4. A fact not charged in the bill in chancery, nor put in issue by the pleadings, cannot be relied upon by 1 lie plaintiff.</p> <p>5. A defect in the charging pari of a bid cannot be supplied by a subsequent interrogatory.</p> <p>6. A promise in w riting, not. under seal, by a son to pay a debt for his father, must be considered nudum hactiwi, unless somfe consideration moving ft om the crcdi; or to the son, or some agreement biucm g the creditor to forbearance, or tne like, in the event of tiie assumption I>y therms, be proved.</p> <p>7, A plaintiff comes with a bad grace, into a Court of Equity, to «’force a promise which ivas induced by unfounded and delusive representations on his own part.</p>

<p>,1', ^’der what circumstances a suit b” ^rought*^ against the seexecutor, ad-out any pre^ent or^deagainst their principal. See JBachelclor vs. Elliot's Administrator and others. 1II. & NC, 10.</p> <p>2. "Where an executor dies without any personal representative, a Court of Equity may, at the suit of a legatee, and -¡rithout any previous suit having been brought against the executor to convict him of a devastavit, convene the securities of the executor, or their representatives, and the persons who would be interested in any estate which the executor may have left, and make the securities liable for any misapplication or waste.g of the assets which shall be established in the progress of such suit in Chancery.(1)</p> <p>3. Under like circumstances, a Court of Equity will give relief against the securities in a guardian’s bond ; and if the executor of the decedent was also guardian to the legatee, the two sets of securities, and their representatives, may be jointly sued.</p>

SEVERAL points were argued in this case by Wirt for the appeilant and Upshur for the appellee ; but one only was decided by the court. A decree was rendered, on the 2d day of September 1801, by the County Court of Accomack, in favour of Cropper against West, from which the latter appealed to the late High Court of Chancery.

IN an action of detinue, brought by the appellees against the appellant, on the 8th of October 1810, for several slaves, the defendant pleaded non detinet and the act of limitations ; on which pleas the plaintiffs joined issue.

Adam Douglas, administrator of Robert Turnbull, filed his bill in the Superior Court of Chancery for the Staunton district, against Ezekiel W. Bull, to obtain a decree fore- ' . closing a mortgage. The deed m question was executed by the defendant to Robert Turnbull, April 21 si, 1801, conveying in absolute fee simple, a certain tract of land. It was , , , , . , , , , . knowledged m court on the same day, and ordered to be recorded.

THIS was an action of debt in behalf of the appellee against the appellant, suggesting a devastavit.

IN the trial of an action of ejectment in behalf of Ceciliq MHlhaney against Benjamin Whitacre, in the superior court °* ^aw ^01' Loudoun county, the plaintiff, having first read jn evidence a patent for the lapd in dispute, from the late * proprietor of the Northern Neck, to Gidney Clark, grandfather of Gidney Clarke the younger, dated November 23d, -1740, farther offered in evidence a document described as “a recor[l in a suit in the high court ot chancery, between Mary…

FAJVNY LACY, widow, and Lydia Lacy and others, children of Thomas B. Lacy, filed their bill in the County Court of Harrison, against Stephen B. Wilson and others ; stating that, on the 8th day of December, 1794, William Hopkins, late of New Kent, father to Mrs. Lacy, executed a deed of gift, whereby he lent to her, for life, a mulatto girl, Helvia, and, after her death, to be equally divided amone; her children ; that the deed was recorded m the County Court of Harrison, in…

- George Chandler conveyed to the appellant Forde and one Patrick Fury a lot in Norfolk, on the 4th of June 1798, Fury conveyed his moiety to James Hunter, on the 24th of April 1800, in trust, to secure a debt due to William Plume. Hunter, the trustee, sold for the satisfaction of Plume’s debt; and Walter Herron the appellee became the purchaser. Hunter conveyed to him Fury’s moiety, by deed bearing date on the 18th of January 1802.

<p>f. Injunction — Dissolution—Appeal—Who May Grant, † —Under the act of January 27th, 1810, the judges of the superior courts of chancery are not empowered to grant appeals from orders for dissolution of injunctions. (1)</p>

THE Rev. James Stevenson, by his last will and testa* ment> authorized his “ executors or executrix, or any acting 0ne, or more, in making arrangements for the payment of his. , . . debtsj to dispose of or sell any part ot .his property, either Persona'- ol’ real, as they should think most advisable, or best adapted to promote the interest of his family.” He appointed his wife, and several of his friends, (of whom Garrett pjpl0r Was one,j executrix and executors.

William Mann by his will, dated and admitted to probat J 7 r in the year 1778, gave and bequeathed to his wife Jane, a “black mare and colt, and saddle, and two cows, and all the household furniture, and all her wearing apparel, and her living upon the land he then lived on during her life j” — to each of his sons, Moses, Thomas, William, and John, a tract of land; with several articles of personal property , . , to Moses and Thomas; — the tract given to William and. ^ohn…

LEWIS B UR WELL, the elder, who died in the yea? ^8by his will directed that his executors should sell, a‘ public or private sale, as they should think most convenient, all his estate real and personal, for the payment of his debts ; and that the surplus of the money should be divided between his daughter Elizabeth Page, his son Nathaniel Bur-well, and his two grandsons Edwin and William A. Burwell.

<p>' THESE two causes were heard together in the Superior Qourt Qf Chancery for the Richmond District, and also in this 1 court.</p> <p>The bill, in the first instance, was filed by Susanna Wilcox, widow and administratrix of Edmund Wilcox, deceased, James T. Hubard and Susanna his wife, (who was daughter of the plaintiff,) Edmund W, Hubard their infant SOn, and Samuel Allen and Thomas West, who, together with the plaintiff herself, were the trustees in a deed of settlement executed previous to the marriage between the said 1 ° James T. Hubard and wife. Its object was to set aside an awarcb which had been made in consequence of a submission, by the plaintiff and the said James T. Hubard, of sundry matters m controversy between them, m relation to the construction of the said deed, and-the settlement of her accounts, as administratrix of her husband and guardian of herdaughL</p> <p>Sundry objections to the award were set forth in the bill; among which, the most important was, “ that all the parties t0 £he deed were not parties to the submission ; that, from the nature of the matter in controversy, no such submission could be made, so as to be valid and binding on ajl the parties concerned in interest; Mrs. Hubard not being a party, nor her infant child ; and all the future issue of the marriage being interested as purchasers, and not being bound by the award.</p> <p>The prayer of the bill was, that the award be set aside; that the accounts of the plaintiff, as administratrix and guardian, be sel tied by a commissioner of the court; that an account be taken of the profits of the lands and slaves, and her portion thereof allotted her; and that if, (contrary to her expectation,) any balance should be found to be due from her, it should be disposed of according to the stipulations of the said marriage agreement.</p> <p>in his answer, insisted that a large balance in money was due to his wife, at the date of the marriage settlement, from the plaintiff as her guardian, and as administratrix of Edmund Wilcox, which balance belonged to himself as husband, and was not comprehended in the deed; that he considered all the. negroes and lands enumerated in the marriage agreement as settled to the uses mentioned therein, apd not subject to the plaintiff’s claim of dower. He combated the several objections taken by the plaintiff to the award; but, on his part, contended, that a fair and full account had not been laid before the arbitrators, and that the sum awarded against the plaintiff was too small.</p> <p>The other was a cross bill exhibited by him and wife,against Mrs. Wilcox and the other parties aforesaid; requiring her to supply the defects, which he alleged, in the account upon which the arbitrators acted ; praying a decree for the amount awarded, and for a farther amount; and also repeating the position that she was not entitled to any dower after the date of the deed.</p> <p>contradicted the statements in the cross bill generally ; and, admitting that the whole of the estate of Edmund Wilcox, deceased, was comprised in the deed, without mentioning h,er dower right, averred, that it never was considered, or contemplated, by the parties thereto, that her dower right was to be in any manner whatever affected thereby; that the whole estate was enumerated and. included, “, first, because no division thereof had taken place between this defendant and her daughter ; (consequently, neither of their shares, or proportions, had been identified;) and, secondly, in order to secure to this defendant’s said daughter and her. issue, agreeably to the contract, the reversionary interest to this defendant’s dower right in the lands and slaves ; and not for the purpose of yielding said defendant’s right.”</p> <p>The deed in question, made the 8th day of May 1805, after commencing by stating its date and the names of the parties, proceeded as follows: <£ Whereas a marriage is intended shortly to be had and solemnized between the said James T. Hubard and the said Susanna Wilcox the younger, and it has been agreed between them that the estate real and personal of the said Susanna Wilcox the younger should be settled and secured to her, and her children which she may hereafter have; now this indenture witnesseth, &c.” that, ££ they the' said James T. Hubard and Susanna Wilcox the younger do hereby covenant and agree, that the said Susanna Wilcox the elder, Thomas West and Samuel Allen, shall stand and be seised and possessed of the following tracts of land, now owned by her, the said Susanna Wilcox the younger;’? that is to say, &c.(describing each tract;) u also thirty-five negro slaves, on two plantations in the county of Amherst, called and known by the following names, to wit, &c.; also forty-seven negro slaves, in the County of Buckingham, called ánd known by the following names, to vvit, 8cc.; making, in the whole number, eighty-two; with the increase of the females of them ; and all the other lands, slaves, goods, chat-tics and.Jirop.erty' of her the said Susanna Wilcox the younger; to them, the survivor of them and his heirs and assigns for- • ever, in trust, and upon this special confidence, that they shall permit the said Susanna Wilcox the younger to have and receive the profits thereof, to her sole and separate use, until the said marriage shall take effect; and, from and after that period, to the joint use of the said James T. Hubard and the said Susanna Wilcox during their joint lives; and, on the decease of either of them, to the use of the survivdi? for life; and if the said James T. Hubard should survive his said intended wife, and she should leave issue, then to the children of the said marriage and their heirs, equally to be divided between them: and, if she should survive him, then to the use of all the children, of this or any future marriage, whom she may leave, or their issue, equally to be divided, the representative of any child to stand in the place of its parent, See.’’</p> <p>Chancellor Tayi.or was of opinion, that, by the deed of settlement, Mrs. Wilcox was barred of her dower in the estate of her late husband Rdmund Wilcox, subsequent to the date of that deed, because, being one of the trustees, and subscribing the deed, and undertaking to stand seised to the several uses thereby created, it would be, in fact, to allow to her dower against her own deed; particularly, as she was privy to the provisions therein contained, and never intimated that she had, or should make, such a claim ; and, hence, to allow it would be a fraud upon the marriage ; but in her account of administration she may be allowed one-third of the profits of the estate, before the execution of that deed ; which will be an equivalent for her dower to that period, as the deed hath no retrospective operation upon those rights surrendered thereby.” It was therefore decreed, that so much of the bill in the first suit, as sought dower in the said estate subsequent to the date of the said deed, be dismissed.</p> <p>The chancellor was also of opinion, that “ James T. Huhard hath no right or interest under the said deed of settlement, other than in the profits of the estate thereby •settled, in common with his wife, for life ; and, in the event he survives her, then for his own life ; and that, by the said deed of settlement, the whole estate of his lady real, and personal, was conveyed in trust for the purposes therein mentioned, •so that any money -which may be due from the said Susanna Wilcox upon a settlement, will be due for these purposes; except as to the interest since the marriage, which will belong to the said James T. Hubard, in like manner with the profits ; and, therefore the submission by the said James T. Hubard Susanna Wilcox, in the proceedings mentioned, being in relation to subjects not in their power to control, the award made in pursuance thereof is, for that reason, set aside.” It was therefore further decreed, that the said Susanna Wilcox do make up an account of her administration of the estate of Edmund. Wilcox, deceased, agreeably to the foregoing opinion, "and also of' hey guardianship of hey daughter, before a commissioner, who was ordered to make a liberal allowance to the said Susanna Wilcox, for the annual expenditures of her said daughter, and also to make up and settle an account between the said James T. Hubard and the said Susanna Wilcox, and between the said Hubard and the trustees named in the said deed of marriage settlement, and report the same to the court.</p> <p>From so much of this decree, (pronounced in September, 1811,) as related to her claim for dower and distributive share of the estate in the said decree mentioned, Susanna Wilcox prayed an appeal, which was allowed by the chancellor, under the second section of the act, concerning the'proceedr ings in chancery, and for other purposes,” passed January ljith, 1807. See Rev. Code, 2 vol. p. 129.(1)</p>

A BILL in chancery was exhibited by Jesse Cole, in James City County Court, against the administrator and heirs of Alexander Massenburg, to compel a foreclose of a mortgage on a house and lot in the city of Williamsburg, and other property.

A friendly bill and answer in chancery were filed in Gooch¡anc^ County Court, by the executors and legatees of John Johnson, deceased, for the purpose of having a settlement of , , . . , ,. . . „ , the administration account, and a division ot the estate. Commissioners were appointed .to examine, state and settle the accounts, and made reports thereupon to the court, shewaiS a balance due from John Guerrant,jr., one of the executors, amounting to 11441. 13s. 3 Jd. - , . .

THIS was an action of trespass in the Superior Court ^01’ ^ath County.

<p>1. A.n executor who sold es testator jn March,; 1781, taking bonds payable the 25th of De- _ cember ensuing, arid reínent^a'quantity of paper ortwoafter^ the bonds bepavne due, was held responsihie thereofV¿»' March, 1781, because by virtue of the act the'sc'dc'of depreciation, December6*^ 24th, 1781,-pa-per money ceased, from and after, the passing of that ~act, to bé a leanfUf'íhe^xé-a cutor had refused to receive it, the debtors would have been compelled to pay, in specie, the value of the paper money at the time of the contract, as fixed by the scale.</p> <p>2. In this case, thg paper money having been received by one of two co-executors, the decree, directed by this court, was against the estate of him only who received it.</p> <p>3. It is error to render a joint decree against two co-executors, when only one is before the court.</p> <p>4. Proof that an order of publication has been inserted in a newspaper two months, |s not sufficient.</p> <p>It should also be proved, that a copy was posted at the front door of the house in, which the court is held.</p>

<p>„ j, jPJ^g Recount of an executor se tiled by commisskmers ap. pointed by the court before w*uc!l tlle will was proved,is not of course la fcrred'toa 1U" commissioner, on a bill to surcharge and falsify: but some evidence should be exhibited to that effect, or something improper in the account should be disclosed in the answer; otherwise such order of account ought not to be made, but the bill should be dismissed.</p> <p>2. On a bill to surcharge and falsify an executor’s account, the legatees as well as the executor being defendants; if the plaintiff direct the cause tc. be set for hearing, after the executor has answered, but before the process against the legatees has been served 5 and the cause be heard on the merits; he cannot object to the Want of proper parties, or that the decision was premature.</p>

THE appellee brought an action of assumpsit against the appellant, in the County Court of Berkeley, for goods, &c. sold and delivered to James Quin, the testator, and laid the , damages in his declaration at three hundred dollars. The defendant pleaded non assumpsit by the testator ; and also that the testator did not assume within twelve months, &c, (a) to which pleas the plaintiff replied generally.

ON the trial of an issue joined on the plea of non detinet, in detinue for a slave, the defendant, Charles Lee, produced in evidence, to support his title, a writing in these words, to wit; “ Be it known, that we, John Webber and.wife, have hereby bargained and sold, unto Charles Lee, one negro girl, named Patience, and for and in consideration of 83J, acres of land, at four dollars per acre; the negro, Patience, is now in possession of John Michaux, but to be delivered to…

<p>IN the year 1803, Thompson and Veiteh instituted two suits in the Haymarket District Court, against Thomas and William Wrenn. On each writ, bearing date August 13th, an endorsement was made, directing it to be served on WilHam Wrenn only. Both writs were returned, “ executed and Thomas Pollard, jun. bail, in one case ; no bail being required in the other. At the rules in November, the plaintiffs declared against both Thomas and William TVrenn as ' defendants, and a recognizance of special bail was filed in the case, which required it, dated the 19th of October 1803 ; in which Thomas Pollard, jun. undertook as special bail for them both. On the 29th of May, 1804, “ the defendants,” by their attorney, pleaded payment, and set aside the office judgment, in the suit in ’which bail had been required. In the other suit, there was no plea filed, or appearance entered, except that, on the 30th of May 1804, the defendant William, in proper person, came and acknowledged the plaintiff’s action in both suits; whereupon, judgments were entered “ against the defendants,” in each instance ; and executions were issued accordingly.</p> <p>At the May Term 1812, of the Superior Court of law for Prince William County, a motion was made by Thomas Wrenn, to that court, to set aside these judgments, as having been entered against him “ by a mistake of the clerk." But this motion being over-ruled with costs, he obtained a writ of supersedeas from this court.</p> <p>relied on Gordon v. Frazier and Cosbie, 2 Wash. 130, as a case in point, shewing “there is no doubt but the court may amend upon motion, where a mistake is committed by their clerk.” In that case, the judgment was entered in the order book, and signed by the judge; yet it was corrected afterwards. If the error committed in this case cannot be corrected on motion, what is the condition in which Thomas Wrenn, or any other man, may be put ? The first intimation he had of such a suit was by an execution issued seven years after the judgment. The court never makes such inspection of the process as would enable it to prevent the clerk from committing an error like this.</p> <p>Admitting the process was never served upon Thomas Wrenn, he had aright to appear to the action. Both the defendants gave special bail, and pleaded jointly. Afterwards, William Wrenn came forward, and acknowledged the plaintiff’s action. This was a waiver of the plea altogether; it being joints and judgment thereupon was properly entered against both.</p> <p>However, (be this as it may,) the court had no right to correct the error.(a) If there was any error in this case, it was an error of law ; not of the clerk, but of the court; being an inference by the court from the proceedings, that th& joint plea having been waived by one defendant, judgment ought to be entered against both.</p> <p>The case of Shelton v. Pollock Ü* Co. 1 H. and M. 423, illustrates the distinction as to what shall be considered a clerical mistake. Here, it was not a proceeding in the clerk’s office, but entered in the order book and signed by the judge.</p> <p>The case in 2d Washington was not like this. The error complained of in that case was in the judgment of the court inform only; being in substance committed by the clerk; because the act of assembly furnished the rule by which the clerk was to enter up the judgment.(a)</p> <p>Another objection, which ought to be conclusive, is, that more than five years having elapsed since the date of the judgment, it is too late to correct it oh motion.</p> <p>The counsel on the other side rests the position, that Thomas Wrenn was in fact a defendant in this cause, on the circumstance that there is in the record a recognizance in which the person acknowledges himself special bail for William and Thomas Wrenn. But there is no proof that Thomas had any agency in this. Any person may ■enter into a recognizance of special bail, of his own mere motion, without the knowledge of the person for whom he undertakes to be bail. The act of the clerk, in entering an appearance, is not an act superintended by the court. In fact, Thomas Wrenn never did enter his appearance. No writ was ever served upon him; and, according to the record, none was ever authorized. Every thing in the record shews that he never was a defendant.</p> <p>The erroneous judgment of th.e court was occasioned by the previous error of the clerk, in stating the plea to be joint, when only one had appeared. It was an error arising from circumstances not in the view of the court when they rendered the judgment.</p> <p>If Thomas Wrenn had known, before the five years were out, that there was such a judgment against him, he could have corrected it by supersedeas ; on the ground of its being a judgment against two, upon the confession of one, which is clearly erroneous. After the five years had elapsed, lv$ only remedy was by motion.</p>

A motion was made, m the Sweet Springs District Court, ^ Charles Beale, aeainst William. Wilson, John Cartmill, and Nathaniel Bakin, on a forthcoming bond. “ For reasons appearing to the court,” it was ordered that said bond be quashed. No bill of exceptions was filed : but the clerk inserted in the transcript of the record a forthcoming bond, on the back thereof notice was acknowledged, in writing, by William Wilson and.

THIS was an action of ejectment in the Haymarket Díst trict Court, in behalf of George Chapman against William Armistead, for seven hundred acres of land in Prince William County.

ON the motion of the auditor on behalf of, the common? weahh, the General.Court, November 10th, 1812, against Joseph Segouine, late sheriff of Norfolk County ; “ it appearing, by the affidavit of David Wade, that the defendant hath had legal notice of this motion, he was solemnly called, but came not: it was therefore considered by the court, that the ' commonwealth recover against the defendant three hundred and fifty dollars, the amount due on executions issued, on behalf…

<p>A MOTION was made to the Court of Hustings for the ° city ot Richmond, by Christian Bohn, that administration of 'd! c estate of John C. Hubner, deceased, be granted to him; u whereupon, came also Nathaniel Sheppard, attorney in fact for certain creditors of the said decedent, (to the amount of seventy thousand dollars,) and opposed the said motion; and the said parties being fully heard, it was ordered that admi- • • „ , ,, , . — - — - , lustration olthe estate ot tne said decedent be granted to the said Christian Bohn; from which order, the said Nathaniel Sheppard prayed an appeal to the Superior Court of law for Henrico county, which was allowed.” The foregoing were all the circumstances stated in the record of the proceedings . m tne Hustings court.</p> <p>Upon the trial of the appeal in the Superior Court of law, the appellant offered as evidence, 1st, a power of attorney, dated June 28th, 1811, from Frederick and Everhard Delius, merchants of Bremen, to George Delius, appointing him their , r , , TT . , general agent lor collecting debts due to them m the United States of America, but giving no authority to tal%o adminis{ration upon the estate of Hubner, orlof any° other person ; 2d. A letter'from the said George Delius to Charles Copland and William* Hay, dated February 5th, 1814, in which he stated that the house of Bohn & Hubner was largely indebted to the house of F. and E. Delius, which he represented ; that he was actually engaged in a law suit for the recovery of the' said debt; that Hubner was dead, intestate; that if the management of the "affairs of the deceased should be entrusted to Bohn, he apprehended the recovery of the the said debt would, at the least, be greatly retarded ; that he wished those gentlemen, if possible, “ to prevent that man, who had by his conduct rendered his character very doubtful, from obtaining the administration, and to get Mr. Nathaniel Sheppard appointed to that office, as a person whose established character for honesty and respectability would render him equally agreeable to Mr. Hubner's heirs and creditors3d. Extracts of two letters from Bohn & Hubner, to Messrs. Shultz Sc Vogler, of Baltimore, and to George Delius in London, acknowledging themselves to be indebted, as aforesaid, to Messrs. F. Sc E. Delius, of Bremen, and apologising for not making remittances : 4th. Accounts of the said F. Sc E. Delius against Bohn Sc Hubnei“, for the years 181Q^, 11, and 12; a power of attorney from W. L. Oebrichs, acting under the firm of John Lange, sons, widow isf Co. to C. H. Dahneman, appointing him commercial agent for that firm; an ex parte affidavit of the said C. H. Danneman, stating that a large, debt was due to the said firm from Bohn Sc Hubner ; á power of. attorney from the said Danneman, constituting the appellant his agent to collect that debt; an account of F. J. Wickelhausen Sc Co. against Bohn Sc Hubner, with an ex parte affidavit of H. D. Wickelhausen, thereto annexed ; also an ex parte affidavit of J. E. C. Shultz, merchant, Baltimore, stating that Christian Bohn, partner of the house of" Bohn & Hubner, in August .1811, offered to make a payment to him of ten thousand dollars, for the benefit of F. Sc E. Delius, as part of a debt due to them, upon a condition that credit should be given for this payment at the rate of is cents for one rix dollar, Bremen currency, which offer he did not accept, considering the rate of exchange too unfavourable : 5th. Parol evidence to prove that the appellant, at the time when the appellee applied to the Hustings court for administration of the estate of John C. Hubner, deceased, opposed the grant of the administration to him, “ on the ground of his better right to the administration, and also applied for the administration himself and that the said court rejected his application, and gave judgment in favour of Bohn’s claim 6. Parol evidence to prove that Bohn Sc Hubner were indebted to the Delius’s, of Bremen, and that suits are depending between the three said German houses, and Bohn £c Hubner, in the Federal Court: all which evidence, was inserted in the record of the proceedings in the said Superior Court of law, but objected to by Bohn, the appellee, in that court, for the following reasons :—</p> <p>First, because the appellant could not be permitted, as he alleged, to prove that he applied for. the administration of the estate of the said John C. Hubner, when it does not appear on the record that he made such application, but merely opposed the appellee’s motion for that purpose ; and because the appellant ought to be confined to proof of the unfitness of the appellee, in point of capacity of mind, solvency, integrity, or moral character, to be entrusted with the administration :—</p> <p>Secondly, because the said accounts and ex parte affidayits are not legal evidence -</p> <p>Thirdly, because the appellant produced no deed of assignment, or other direct authority, from the said German houses to him, to take the administration as their representative, or as a person to be appointed to take it on their recommendation ; but only the authority as set forth in the evidence :—</p> <p>Fourthly, because, as creditors, they had no superior claim to the administration; and, if they had, they could not assign it:—</p> <p>Fifthly, because they were not creditors of Hubner individually, but only of Bohn and Hubner : and</p> <p>Sixthly, because the administration having been granted to the appellee, who had equal right thereto, in law, with the said German Houses, it could not be repealed, at their in? stance, or that of the appellant, by this court in the present cause.</p> <p>But the court oyer-ruled these objections, and admitted ' , ' all the aforesaid evidence: whereupon the appellee filed a bill of exceptions.</p> <p>001^01’™^ with the act of February 14th, 181 l,(a)the fol=. lowing was spread on the record, in addition to the evidence referred to in the bill of exceptions. George Delius deposed, that he is the attorney jn fact of F, and E. Delius, by virtue of-a general letter of attorney, which is copied in the record, attested by a notary public, and the American consul at Bremen, under their respective seals of office ; that he verily believes the house of Bohn and Hubner are.largely indebted to his principals ; that always, until the summer of 1811, they promised payment, and excused themselves for not making it, on account of unfavourable exchange and the danger of shipping produce. The witness exhibited the ex? tracts of the two letters stated in the bill of exceptions, which extracts he said were as correctly translated as his knowledge of the English language would allow, and were the last that had been received from Bohn and Hubner relat? ing to the debt due from them to F. and F. Delius. The original letters from which the said extracts were taken were also exhibited, and other parts of them relating to remit? tances were orally translated, and the letters directed to be deposited with the clerk for the examination of the Court of Appeals, if they should require it. The witness saw Mi'. Hubner .in London in the summer of 1811, who then inform? ed him that Mr. Bohn had a considerable sum of money, Which he intended for remittances, and promised it .should be paid to the Delius’s as soon as he returned to the United States: he beljeves, however, that no remittances have been made since; that frequent applications have been made, and to those no answer has been given. The witness proposed to, submit the differences to arbitration ; but the only answer Mr. Botin would give him was, “ if you think we owe you any thing,- or if you expect to get anything from us, you must get it by law,” or words to that effect. He believes the dealings commenced in 1803 or 1804, and that no goods have been remitted since 1810; that the merchandise sent Bo/m and Hubner consisted of German linens, and other German goods; and that the balance due December 31st, 1812, was equal to about .34,000 dollars. He also stated, that, in consequence of Bohn’s counsel in the Hustings Court declaring repeatedly, that the books of Bohn and Hubner might be inspected at any time, he procured Charles Copland to write a letter to Bohn, requiring' a sight of them, which he presented ;' but Bohn refused absolutely to permit him to see them.</p> <p>The appellee produced as witnesses three merchants of the city of Richmond ; one of whom deposed, that he had known Mr. Bohn ever since he came here, which was about the year 1798 ; that he always considered him a man of integrity, and correct in his mercantile transactions, and had never heard any thing against him: (being cross examined, he said that Bohn and Hubner came here from Germany ; that they received large consignments of German goods; that he had known them only in their characters as sellers, and not as buyers :) another deposed, that he had always considered Mr. Bohn as a man of punctuality, responsibility, and integrity; had known him a considerable time, and lived near him for two or three years past; but had never had extensive dealings with Bohn and Hubner j was not acquainted with them as debtors, and did not recollect to have heard of their buying produce; that Mr. Bohn was always considered as a very prudent man : a third deposed, that he had sold Bohn and Hubner produce ; to wit, tobacco, and cotton, &c. and had purchased goods of them; and always found them correct men.</p> <p>Besides the above evidence, it was admitted by the counsel for the appellant, that the said Bohn is a naturalized citizen of the United States, a man of business, and a good accountant ; and by the appellee’s counsel, that he is a bachelor, and has not any real property in the country. It was also admitted by the appellee’s counsel, that the said Sheppard is a native bóm citizen of Virginia, a married, man, having several children* the owner of real property of considerable value; aman of integrity and respectability; a good accountant, and a man of business.</p> <p>It was also proved and admitted, that the said J. C. Hubner died on the 26th day-of December 1813, that he was an inhabitant of the city of Richmond, and had been partner in trade with the appellee Bohn for fifteen years; that he was a native of Germany, and had no relations in this country.</p> <p>•It was admitted by the appellant, that the said German houses had no claims against Hubner individually; and that the said Hubner appeared to have died without any separate property of value, having very few effects, except his share, ill the partnership effects.</p> <p>It was proved'' that the said German houses had, in the early part of the year 1813, instituted actions at law in the Federal Court against the said Bohn and Hubner on the aforesaid accounts ; “ which actions are still depending, and were contested by the defendants, and are now contested by the appellee as surviving partner</p> <p>The Superior Court of Law, having seen and inspected the transcript of the record, and fully heard the evidence, &q., reversed the order of the Hustings Court, with costs ; and, uon the motion of the appellant,” granted him the administration, “ on his making oath according to law, and entering into bond, with sufficient security, in the penalty of fifty, thousand dollars, conditioned as the law directs; whereupon, the said appellant tendered to the court Robert Pollard & Benjamin Sheppard as his securities, who were by the court deemed sufficient; but, before the bond was executed, the appellee prayed an appeal to the Court of Appeals, which was allowed.”</p> <p>It does not appear, from the record of the Hustings Court, that any motion was made by Sheppard to obtain the administration. He therefore could not aPPea* to ^ Superior Court, (a) Neither the testimony nor the record proves that Sheppard appealed from any order refusing to grant him the administration. The record says, the appeal was from the order granting the administration to Bohn. There was no cross cause in court ; — and, if there was one, no appeal was taken in it. If, in fact, there was such an appeal, no good reason is given for the failure to enter it. If a party, having a right to enter his motion, fails to do so from misapprehension of law, it is his own fault, and he is liable for the consequences.</p> <p>Upon the record, therefore, Sheppard was confined to personal objections against Bohn. If no such objection could be supported, the court was bound to grant the administration to the latter, ex debito jus titles. This court, I suppose, will imitate the practice of the ecclesiastical court, (a) and not admit any testimony in the appellate court upon a subject that was not in question in the court below. So, in the courts of equity, it has been again and again decided, that new matter is not to be received on an appeal.(b)</p> <p>The appellate court cannot reverse the decree ol a court having a discretionary right, unless there was an actual cross motion, and that entered, of record.(c) And this is right upon principle. All that the party has to do in such case is to defend his own right; not to question that of ano- , , , ther person, who has not asked tor the administration.</p> <p>A man cannot claim, a right by plea only. He must aclually demand it. M‘Conico vs. Moseley, (M. S.) October term, 1798, in principle is precisely the same with this case. (d) If Sheppard had a superior right, he ought to have applied to the Hustings Court to repeal the administration ; and, if overruled, he might then have appealed from the or- ... der overruling his motion. Packman’s case, 6 Co. 18, shews the distinction between the mode of proceeding to repeal, and that to reverse a grant of administration, (e) The former is done upon new matter; the latter upon objections appearing in the record. This too is right in principle. If any matter, that was not before the Hustings Court, appears, it ought to be brought before the same court where the question originated. But if the Superior Court has the right to repeal the administration, and grant a new one, it ought to be done by citation to the party whose right is attempted to be impugned. Otherwise he might be deprived on-ground# never heard o£ by him until that moment.</p> <p>and' Sheppard has no superior legal right. A creditor has no preference ; but it is a matter of discretion with the courts (a) He has, therefore, no right to depute another person to administer in his stead ; because-he has no right to administeiy but only a capacity to be administrator, if appointed. A next of kin can depute, because he has a rig -■</p> <p>But, since'a contest is depending, between the creditors in Germany, and Bohn, as surviving partner of Bohn is" Hubner, concerning their claims, it is more probable that Bohn, whose capacity, responsibility, and integrity are proved, should -have the administration, in order to enable him to avail himself of any documents, for defence, which may-exist among the papers of the decedent, and to withhold-such as it might be improper to disclose, than that the agent of the creditors should have. it, .and thereby.be enabled to possess himself of those documents, to the prejudice of the defence, and the injury of th'e very estate which would be entrusted to his care. • .</p> <p>Is it right that Hubner’s own adversary should be the man entrusted with the administration ? — The claim was disputed by him in his lifetime. They wish to get hold of the papers, to obtain an improper, advantage. If not, why do they desire to take the trquble of the administration, when, as Bohn upon undertaking it must give security, it is more beneficial to them, (if they intend nothing but what is- fair and upright,) that he should do it than that they should'? — It is agreed, too, that Hubner had no effects of any consequence, but those of the partnership. Every thing, therefore, could be got by the suits in tlie Federal Court, now pending, which .the creditors could obtain'by administering. As administrators they would still have to sue Bohn, the surviving partner ; and that they have done already. As to Sheppard’s being a third person, it makes no difference ; for he lends himself as an agent to the creditors, and, therefore, being identified with them, is liable to the same exceptions that they are*</p> <p>It may be said that this was an appeal from an interlocuiory order, because . Hustings Court had not yet proceeded to direct bond to be given. But, according to the case of Alexander vs. Morris, 3 Call, 104, if a party appeals too soon, he shall not take advantage of it.</p> <p>Besides, the taking the bond was a ministerial act only, (see 1 Wash. 306,) by the omission of which Bohn ought not to be prejudiced.(1).</p> <p>The entry in Cutchen vs. Wilkinson was similar to that in this case ; nothing being said about requiring bond and security. If the order sh ould have been reversed for want of form, the Superior Court might have reversed it on that ac<count, but should have re-granted the administration to the same person.(a) I might say, that it does not appear from this record that the bond was not taken ; and that the appellate court always presumes the court below to have done its duty, unless the contrary appears. But there will be no difficulty in directing, now, that, if bond was not given, it shall be given,</p> <p>The evidence referred to itt the bill of exceptions was properly admitted ; for this is an appeal as to fact, as well as law. Until the act of assembly directed the evidence to he spread on the record, this court always received new evidence, in cases of mills, wills, and letters of administra!ion, without considering what was the evidence in the court below.(a) The same rule still applies to appeals of this nature from the county courts to the superior courts. As to the right of the party appealing, the extent to which this court has gone, has been to enquire whether the appellant was interested in the controversy. If Sheppard had not appealed, he might have applied for a writ of supersedeas, and was entitled to shew, by testimony in the court, above, what the controvei’sy was in the court below. Here the record of the Hustings court shews that he did oppose the'motion of Bohn; without stating the nature of his. oppositionbut it appears, from the record of the superior court, that he actually applied for the administration for himselfthat his opposition to Bohn was on that ground. When he came up to the superior court, that court had full jurisdiction of the whole case. It had not only appellate, but original jurisdiction; and if it had decided in Bohn’s favour, he must hávé qualified there, — not in the inferior court. The appeal suspended all the proceedings of the inferior court; and the superior court was to make an epd of the case.</p> <p>Tatum v. Snidow(b) was an appeal of a different nature from this. . In that case, the appellate court heard the cause on the record only this, they heard it on new evidence also.</p> <p>It is not necessary to .enter a formal motion on the record, to shew that Sheppard applied for the administration, and was refused itwhich would render two appeals necessary, instead of one.</p> <p>If we are tied down to the mere question made by the re.cord, it does not appear that Bohn-ever gave bond and security. . H® was, therefore, not legally administrator; and the superior court had the right to grant it to Sheppard, by virtue of its original jurisdiction.</p> <p>But, admitting the rule in England to be as laid down’in 1 Brown’s Civil Law; p. 500, we must be governed” by tlie rule established here in Lee v. Turberville. The appellate court in England has no original jurisdiction: — yet, even there, it is not said that no .new evidence shall be admitted.</p> <p>. This case is not to be governed b.y the yules applying to appeal's from decrees in chancery. . But, even in chancery, new evidence is admitted in the Court of Appeals, upon appeals from interlocutory decrees,(a) In equity, also, a party can obtain . by answer, what he cannot by plea at law j— for a decree may be entered in his favour for a balance of account against the plaintiff.</p> <p>As to this cross motion, I can find nothing about it in any of the books of my reading. Packman’s case, 6 Co. 18, and Toller 93, 94, only shew that citation is necessary where the object is to repeal an administration already granted: — but it appears from Blackborough v. Davis, 12 Mod. 615,(a) that, where a controversy is pending, in the court, for the administration, the opposing party may apply for it, without citation to the original applicant.</p> <p>2. If the evidence referred to in the bill of exceptions was improperly admitted; yet the judgment ought not to be reversed on that account; — there being evidence enough, to which no exception was taken, to justify the court in refusing the administration to Bohn. As the court was to decide upon the objections taken, and therefore must examine the evidence, the suffering it to be read was not error;— since, if any part of it was improper, the court would, in deciding the case, reject such as was illegal, and regard only that which was legal; there being no jury lo be led astray by the admission of improper evidence. Indeed, in this case, the receiving the evidence was unimportant-because, if the superior court had confined the enquiry to the character and responsibility of Bohn, it might, after reversing the Hustings court judgment, have immediately entertained a motion in behalf of Sheppard, and granted him the administration.</p> <p>3. On the-merits, the question is, whether it is better, for the purposes of justice, that Bohn should have the administration, or that Sheppard should ?</p> <p>It appears by the record that Bohn and Ilubner are largely indebted. Bohn is responsible for the debts; — has no real property; — no family; — may go off to Germany with ah that he has. Sheppard is a man of permanent property, - family, — and high respectability. Sound discretion, for chc benefit of the parties interested, points to Sheppard as the administrator. The securities in Bohn’s administration bond would not be responsible for his conduct as surviving part-n.er, but only for whatever balance he might transfer to his' debit as administrator. If the creditors are willing to settle by Bohn and Hubner’s books, surely Bohn cannot object. If he is unwilling to produce the books, he cannot be the honest man he is represented to be.</p> <p>The circumstance that the Superior Court had original jurisdiction, does away the first argument of Mr. Call. We had the right to make any objection competent lo shew that Bohn ought not to be appointed. In cases of this nature, the proceedings are all ore temis. It is not necessary that the grounds of the judgment should appear on the record. I do not say lhattlie parties may not tender a bill of exceptions, and that the court may not sign it, if they chuse ; but they are not compelled : if they do, if is to be taken merely as a statement of the facts by the court. Either party may exhibit the same, or new evidence to the appellate court. Such was the established rule of this court, until the late act of assembly ; and the rule remains unchanged as to the Superior Court.</p> <p>If it appeared there were objections to Bohn, and {hat a a third person, against whom no such objections existed, and who did not make a motion, was yet willing to accept the administration ; ought not the court to take notice of the circumstance, and prefer that person, though he made no motion ? It is not necessary to the appointment of an administrator that he should be a candidate for the office. He is merely the officer of the court; and it is competent for them, provided they keep within the rules of law, to appoint any person they please.</p> <p>Mr. Call’s position that a creditor is entitled to no preference, is incorrect. Calais paribus, a creditor, is entitled to a preference ; though circumstances may turn the scale in favour of another person. This court has a right to consider and determine whether the court below exercised a sound discretion. Indeed, in cases of this sort, it may go farther, and consider not only the propriety of the opinion given by the Inferior Court, but the right o.f the thing itself, as it may appear on now testimony. Suppose, in the interval between the judgments of the Hustings and Superior Courts, Bohn had become insolvent, or of notorious bad character, ought not the Superior Court to have taken notice of it?</p> <p>None of these motions ore tenm need be put on the record, if the court do not act upon them. A motion may bo withdrawn, when it has been virtually over-ruled by a. decision on another motion. It would therefore bo clogging the record unnecessarily to insert it. The new evidence wc offered in the Superior Court grew out of the old case, and was pertinent to it. The question whether Bohn was a proper person, or not, depended on another question ; whether a better character could be had. So, in ejectment, the defendant may bar the plaintiff, by shewing title in himself, or some other person, as well as through the weakness of the plaintiff’s own title.</p> <p>Upon the merits, this cause is to be tried upon plain practical principles. The affidavits were properly taken, though without notice; there being no & pendens. But, putting them out of the question, Bohn, as surviving partner, was liable to objections ; but Sheppard was free from any objection. If wc, as creditors, administer, Bohn is a check upon us : but, if he administers, there is no check upon him. Ilia giving securitiy is nothing to the purpose. That argument would prove too much : it would justify the appointment of any body, on his giving security.</p> <p>On the face of the record, Bohn is proved a dishonest man. He refused to shew his books — to arbitrate — to pay the debt, though unquestionably proved ; and told the creditors they might go to law, and he had no other answer for them. Admit, that in all this, I have done him injustice, and that these circumstances are merely grounds of suspicion ; yet, is not suspicion enough, to disqualify him from the appointment to an highly responsible office ?</p> <p>As to Sheppard, it appears plainly, from the record, that he was agent for creditors to the amount of seventy thousand dollars. The power of attorney, under which he claims, is sufficiently comprehensive, (though dated in Hubner’s lifetime,) to authorize him to take any necessary step to recover the debt. So, in case of the absence of an executor from the commonwealth, if he be a respectable man, his agent may surely be appointed administrator durante absentia.</p> <p>The.judge of the superior court of law, being called upon in this case, to act, not in his original, but appellate character, was bound to confine himself to the decision upon the record, which involved only the fitness or unfitness of Bohn, and did not involve the fitness or unfitness of Sheppard, whose pretensions do not appear by the record, to have been before the inferior court: — consequently, all the evidence before the Superior Court, tending to support the rival pretensions of Sheppard, was irrelevant to the case upon the record, and ought not to have been received.</p> <p>As growing out of the same principle, I contend that Sheppard was bound to support the appeal, in the same character in which he took it; viz. “ as attorney in fact for certain creditors of the decedent Hubner /’ instead of which, he exhibited himself before the appellate court in a new character ; viz. as agent for certain creditors of Bohn ts* Hubner. To authorize an appeal, the party who takes it must not only have been a party in the court below, but he must have been interested in the case.(a) Now, who the parties to a controversy in a court of record were, is to be learned only from the record itself. It is not pretended that Sheppard had any individual interest: — his interest (if such it can be called,) was representative only: — what his representative character was, he asserts upon the record at the time of his appearance ; it was that of agent of the individual creditors of Hubner -in this character he appealed : — -yet, this character he was permitted to lay down, and rise up in the appellate court in a new charactér 1 Can a man appeal in oné character, and support the appeal in another ?■ — For example, can he appeal upon an alleged interest as an individual, and support the appeal by proving interest as an executor If he can, does it not cease to be an appeal, and become an original controversy between other characters l</p> <p>Now to the question itself before the judge of the appellate court. We contend, that the record restricted him to the consideration of the fitness or unfitness of Bohn ; and that, upofi this record, acting in his appellate character, he was not at liberty to institute a comparison between the fitness of Bohn and Sheppard. We do not say that he was tied down to the evidence which was heard in the court below ; but that he was tied down to the question which was there decided ; and that this question was to be learned only by the record ; because the acts of a court of record are not to be learned by parol evidence of what passed in court.</p> <p>It is said that this is an appeal of fact, as well as of lato. Agreed: but still it is an appeal; and the decision appealed from is the single subject matter of enquiry. “ The facts are all open in the appellate court.” Agreed : but what facts ? The facts which belong to the point adjudged upon the record ; and not upon a different point.</p> <p>“ The Superior Court had original jurisdiction over this class of cases.” True; but it was not called upon in its original character ; it was called upon in its appellate character only. So, it has original concurrent jurisdiction, with the inferior court, in all questions of law where the value in controversy amounts to one hundred dollars: yet if a question comes to it in its appellate character, its original jurisdiction will not avail it, to change the nature of that question. Its original jurisdiction over grants of administration is unlimited : but its appellate power, like that of any other appellate court, is limited to the judgment appealed from. To talk of the original jurisdiction of a court, on a pure question of appeal, is to introduce a confusion of ideas ; not to guide us to truth. The appellate and original jurisdictions are parallel lines. An appellate court deciding an appeal by the measure of its original jurisdiction is a legal solecism.</p> <p>“ Suppose, (s^ys Mr. Williams,) the court had reversed Bohn’s appointment on the ground of his unfitness, could it not have heard Sheppard’s motion, and granted the administration to him l” Unquestionably it could; for, the appeal being put out of the way, the door of the court’s original jurisdiction would be open. But could the Superior Court have decided the fate of the appeal, upon a motion for the first time addressed to its original jurisdiction ? — Suppose a distributee had come into the Superior Court, pending the appeal, and moved for the administration ; could the court have mingled this motion with the appeal, and decided the appellate question by this heterogeneous addition ? Must it not have decided the appeal by itself, and put the distributee to a distinct procedure, to repeal the letters of administration ? And if the court would not have incorporated with the appeal a new motion addressed to its original jurisdiction by another, is not a new motion addressed to its original jurisdiction by Mr. Sheppard equally foreign to the appeal?'</p> <p>But, it is said, that Sheppard’s was not a new motion in the appellate court: he had made it in the court below. How does this appear ? They answer, by parol evidence. But, we say, that the acts of a court of record cannot be proven in any way, other than by the record : a motion made and overruled is an act of the court, to be shewn by the record. “ All the proceedings are ore tenus : no libel, — no citation, ■ — no summons, — no plea is necessary.” If this be a reason why it was not necessary to record Shepfiard’s motion, it is equally a reason why it was unnecessary to record Bohn’s ; because that was equally ore tenus ; and so, there might have been an appeal without any record at all ! “ It was. not necessary to enter Sheppard’s motion, .because it fell.” True ; if a party, satisfied with the judgment-of the court against his motion, chuses to withdraw it, there is no occasion to enter it, unless his adversary insists on costs : but if he is dissatisfied with that judgment, and proposes to redress himself by appeal, he must enter it, or he cannot avail himself of it by appeal. Here Sheppard was dissatisfied, and determined to appeal : if, therefore, he meant, in the Superior Court, to insist on his superior fitness, he was bound to docket- his motion, in order to shew|that his comparative fitness formed part of the cause in the court below.</p> <p>ft is said that this is not so, because, on the appeal, the party contesting the grant has aright to shew, by evidence, every thing he can against it. But it is important to distinguish between the proposition made to a court, and the evidence by which that proposition was maintained. Every thing that was matter of evidence on the proposition is open to the appellant; b ut what the proposition itself was, is surely not matter of evidence, but of record. It appears by the record, that Sheppard appeared, and opposed Bohn's motion : — now, if, from the nature of the thing, this opposition necessarily involved a motion, for the administration, on the part of Sheppard, the record would have been full enough to let the appellate judge into the examination of his comparative merits. But this was by no means the case ; for it is competent to any person interested to oppose the grant of administration to any particular character, on the ground of unfitness in that character; without a counter motion. It was no proper ground of opposition to Bohn's motion, that there was a fitter character, unless connected with a motion on the part of such fitter character. Suppose, for example, Sheppard, in opposition to Bohn’s motion, had introduced evidence to shew that Mr. Wickham, or Mr. Williams, or some magistrate on the bench, was better qualified to be an administrator than Bohn ; would not such evidence have been wholly irrelevant to Bohn's motion, unless the fitter person were also an applicant for the office ? And if so, in order to make it relevant in the court above, must it not have appeared by the record, that there was such application ?</p> <p>it is not necessary for the party to make the motion : he need not be a candidate : it is enough that he is willing to accept. But it is the same thing in substance : if he comes into court as a party, and declares his willingness to accept, or permits another, in his hearing, to declare it, and to offer proof of his superior pretensions, he is, to all legal purposes, a candidate and mover in-the cause.</p> <p>In Cutchin v. Wilkinson, 1 Call, 1., it did appear that Cutchin did something more than oppose Wilkinson’s motion ; for the record of the inferior court exhibits Cut.chin as an applicant. In that court, the administration was granted to him. . So, in Hendren v. Colgin, (ante) the rival applications were stated ; and the same thing was done in MacCandlish v. Hopkins, decided November 14th, 1814.</p> <p>Upon the merits ; the grant of administration to a distributee is understood to be a matter of right, in the order pointed out in our act of assembly. In relation to them, the only matter of discretion which the court has, is among distributees in equal degree: and, in the exercise of this discretion, the act gives the court a principle to guide them; to wit, they are to appoint the person, “ who, in their judgment, w¡¡¡ best manage and improve the estate” (a) This shews that, m the appointment oi an administrator, the primary object of consideration is the interest of the distributees. The 29th section, which authorizes' the appointrnent of a creditor, clearly contemplates a creditor of the decedent; not a creditor of a mercantile firm of which he was a partner. The obvious reasons, for such an appointment, do not apply to the case of such a creditor as is last mentioned. The reasons for appointing a creditor are, first, because, without an administrator, there is no one against whom he can assert his claim; (b) and, secondly, that he may collect and preserve the effects of the deceased, which would otherwise be in danger of being lost. But in this case, there is a surviving partner, to whom the possession and title at law belongs. It is true that the administrator of a deceased partner is said to be a tenant in common with the survivor; but this is only sub modo : the possession of the debts to the firm belongs to the survivor ; and his is the sole right to sue for those debts, and the liability to be sued for any balance due from the grra. (c) Hence, the administrator of a deceased partner v J r represents the distributees emphatically; for his right is ont0 tjie share of such partner, after the partnership accounts shall be settled; which presupposes the payment of all the creditors of the firm.</p> <p>Why then should a creditor -seek the administration in this case?, since, for the recovery of his. debt, he has a direct remedy against the surviving partner, and' there is no pretence upon the record that the effects in his hands are not amply sufficient to pay all the debts of the firm, or that he is acting unfaithfully, or imprudently, as surviving partner.</p> <p>It is contended, that cmteris paribus, a creditor has a preference to any person other than a distributee. But this position is incorrect. The rule in England is, that “ if none of the kindred will take administration, then it shall be granted to those who shall desire it(a) or “ (o such discreet person as the ordinary pleases.” (b) The grant to a creditor is merely the effect of custom. The language of our act is in conformity with this custom, and gives the court a discretionary power; so that it is not error to grant the administration to any other person, in preference to the creditor, if such person be liable to no particular exception. And, if there be no such exception, between persons of equal right, the Appellate Court will not disturb the first grant, (c)</p> <p>The inquiry then is, whether Bohn, who received the appointment from the Court of Hustings, is liable to any just exception ? The first objection taken is that he is the surviving partner; and this is said to be sufficient, if no other existed.</p> <p>It is to be borne in mind that the polar star pointed out in our act, for the selection of an administrator, is the interest of the distributees; and such an one is to be appointed as will best manage the estate. Now Bohn’s interests, as surviving partner, arc exactly co-incident with those of the distributees of his deceased partner; whereas the interest of the creditors is directly the reverse.</p> <p>But “ if he be the administrator, as well as surviving partner, there will be no check upon him; no one to call him to account; and Bohn the administrator, will very willingly pass to his own credit the accounts of Bohn the partner.” To this I answer, the same persons will call him to account as there will be to call Sheppard ; viz. the distributees ; and his accounts must be proven by sufficient vouchers. Suppose the distributees could be consulted. In whose hands would they feel themselves most safe; in those of the friend and partner of their deceased relation, or in those of creditors, "who, during his life, had dragged him before a court, on what he conceived an unjust claim ?</p> <p>With respect to the personal objections made to Mr. Bohn, it is sufficient for us to rely on his character as proved in the record, and his appointment by the Hustings Court, the members of which had known him for sixteen years. His refusing to pay 870,000, claimed of him by these German creditors, is no proof of dishonesty, since the justice of their claims was controverted by him, and by Hubner in his lifetime. If they fear that he may leave the country, why do they not hold him to bail, in their suits now pending ? If he obtains the administration, he will give them security, which,' it seems, is the very thing they want.</p>

A MOTION was made by Farrow’s executors, Septemher 7th, 1807, to Prince William County Court, against Charles Ewell, sheriff of that county, to- whom the estate of , Henry Dade Hooe, deceased, had been committed, for judgment antl award of execution on a forthcoming bond, bear-¿ate the 2ith of July, 1806.

<p>of a sheriff for cleric’s tickets, Eand™for collection, may, from length of time, eJhxumftanfet* be presumed to Ixftv© been paid, without to^that^flbct°^'</p>

IN the year 180,3, a company of merchants,-styling them-! selves*u Thomas 1$ Alexander Donald & Co” brought an ac-? tion of assumPsits *n tlie District Court holden at Richmond, against Daniel Totty, William Tatty, and Edward Totty, executors of Thomas To.tty, deceased.

<p>ON the trial of an action of ejectment for several lots m the . . . town or Fredericksburg, m behalf 01 John Minor against Joseph Christy, the plaintiff, to support the issue on his part joined, introduced a deed, bearing date the 18th of March, 1805, from Joseph Scott, marshal of the Virginia District, reciting, “ that, whereas, bv the 12th section of an act of the *■ v congress of the United States, entitled, “An act to lay and colIcct a direct tax within the United States,” passed on the 14th day of July, in the year 1798, it is enacted, that, when any tax assessed on lands or houses shall have remained unpaid for the term of one year, the collector of the' collection district, within which such lands or houses may be situated, having first advertised the same for two months, in six different public places within the said district, and in two Gazettes in the state, (if there be so many,) one of which shall be the Gazette in'which the laws of such state shall be published by authority, if any such there be, shall proceed to sell at public sale, and under the direction of the inspector of the survey, either the dwelling house, or so much of the tract of land, (as the case may be,) as may be necessary to satisfy the taxes due thereon, together with costs and charges, not exceeding the rate of one per centum for each and every month the said tax shall have remained due and unpaid : and whereas by the second section of another act of the congress of the United States, entitled, “ an act to amend an act, entitled, an act to lay and collect a direct tax within the United States, passed on the 16th day of March in the year 1802, it is enacted, that, in case of failure on the part of the owner or owners of the aforesaid lands, (thereby meaning the lands lawfully charged with said tax,) to pay, within the aforesaid time, (thereby meaning the six months from the date of a notification, prescribed by the first section of the act last mentioned,) the full amount of the tax due thereon, the collectors, under the direction, and with the approbation of their respective supervisors, shall immediately proceed to sell, at public sale, at the time and place mentioned in the advertisement of the supervisor, so much of the land aforesaid, as may be sufficient to satisfy the same, together with all the costs and charges of preparing lists, advertising and notifying as aforesaid, and of sale ; and whereas it appears, by the transcripts of the lists of lands sold for the non-payment of the said tax, deposited with the said Joseph Scott by the late supervisor of the Virginia District, that, by virtue of the aforesaid act of the congress of the United States, the lots of land, hereinafter mentioned and conveyed, were sold to the said John Minor, for the sum of four dollars and thirty cents, by the collector of the collection district, within which the said lots of land are situated, on the 16th day of December, in the year 1802, for the non-payment of the direct tax, assessed in the name of Josefih Earl, (the rest of the owners unknown, and taxed the sum of four dollars and thirty cents, including costs, on ten half acre lots of land, viz. nos. 5, 223, 228, 191, 197, 193, 199, 207,9, and 12, situated in Spottsyl* vania county; and the time allowed by law for the redemption of the said lots of land so sold, has expired since the 3d day of March 1804, and no redemption thereof hath taken place, according to the said act of congress: and whereas, by the fifth section of one other act of the congress of the United States, entitled, “ An act further to amend an act, entitled, an act to lay and collect a direct tax within the United States,” passed on the 3d day of March 1804, it is enacted, “ that the several marshals, for the time being, of the said District Courts, shall alone have the authority, in all cases where the time limited by law for the redemption of lands sold, shall not have expired before the passing of this act, and they are hereby authorised and required to execute deeds, for so much of the said lands and lots as shall have been sold to satisfy the amount of the direct tax, charges and costs due thereon, and which shall not have been redeemed by o,r for the original proprietor, within the time limited by law, to the purchasers of such lands or lots, or their legal representatives: provided, however, and be it further enacted, that no such deed shall be executed, except for lands or lots contained in the transcripts, filed with the clerk of the proper District Court, in conformity with the preceding section, or unless the purchaser of any tract of land or lot sold for non-payment of the tax, shall have filed, within three months after the passing of this act, or within three months after such sale, with the supervisor, officer acting as supervisor, or marshal, (as the case may be,) a receipt from the collector for the purchase money, dated within thirty days subsequent to such sale, and specifying distinctly the original description of the land assessed, and the quantity sold: and whereas the Jots of land, hereinafter mentioned and conveyed, are contained in the transcripts filed with the? •clerk of the court of the United States for the Virginia District ;” the said Joseph Scott, “ in consideration of the premises, and in conformity with the direction of the said last mentioned act of congress,” conveyed the said lots of land tó John Minor, without warranty; the said conveyance being made in his official character only.</p> <p>And this was all the evidence on the part of the plaintiff.</p> <p>The defendant, to support the issue joined on his part, introduced a deed of mortgage, bearing date May 22d, 1765, from Roger Dixon to James Harford, j “ and it was admitted, for the purpose of this trial only, by the plaintiff, that, upon the last mentioned deed, a suit in chancery, to which the plaintiff was not a party, had been instituted for some time, and was pending and undetermined at the time of the execution of the paper writing, introduced by the plaintiff, for the purpose of foreclosing .the mortgage, and subjecting to sale the property conveyed by the said deed, which’comprehended’ the lots in the declaration mentioned; that the suit regularly progressed to a final decree for the sale of the-mortgaged premises; that the decree was regularly and properly executed by the proper officer, and the lots in the declaration mentioned struck off to the defendant, who was-the highest bidder, and conveyed to him by a deed,” in hxc verba ; “ and actual possession of the said lots was delivered to-the defendant; and that the plaintiff had never been in actual possession of the said lots :” whereupon, the plaintiff moved the court to instruct the jury, that the title, derived to the plaintiff by the sale of the lots aforesaid, for the non-payment of the direct tax, imposed by the acts mentioned in the said deed offered in evidence by the plaintiff, and the purchase thereof by the plaintiff, and the conveyance under that purchase offered in evidence by him, was sufficient to entitle the plaintiff to recover, in opposition to the title aforesaid set up by the defendant:- which instruction was accordingly given by the court; whereupon the defendant filed a bill of exceptions.</p> <p>The defendant obtained a writ of supersedeas from a judge of this court.</p>

<p>THIS was a suit in the Superior Court of Chancery for the Richmond District against Mary Anderson, widow and executrix of Reinará Anderson, deceased, Julius King, and Martha, his wife, late Martha Anderson, John F. Anderson, Mary Ayderson. and Elizabeth Anderson, and Hezekiah R. Anderson, infants, by Mary Anderson, their mother and 7 - - _ guardian. The object of the bill was to subject the estate of Reinará Anderson, deceased, to the payment of a debt contracted by the executrix, for goods purchased for fhe usp pf herself and children, upon the credit of the estate.</p> <p>Julius King and wife, John F. Anderson, and Mary Anderson answered the bill; objecting to the claim pf the plaintiffs, on the ground that credit to an unreasonable extent had been given by them to the widow, who, (they alleged,) extravagant in her dealings, and exceeded in her purchases the profits of the estate, which, with good management, would have been amply sufficient for the decent maintenance of the family. The plaintiffs replied generally, and, after taking depositions, had the cause set for hearing as to those defendants.</p> <p>The bill'was taken pro confesso as to Mary Anderson, the executrix, and Elizabeth and Hezekiah R. Anderson, her infant children ; but it did not appear that any copy of the decree nisi was served upon either of. them.</p> <p>The chancellor dismissed the bill, in general terms ; giving costs to the defendants King and wife, John F. and Mary Anderson, but saying nothing about the other defendants.</p>

THIS was an action of debt, on a bond, in the superior court of Southampton county. A common order at rules in r ' , the clerk’s office was entered in February, and confirmed m March, 1813, against the' defendants, and the bail for their appearance; “ subject to certain credits, endorsed on the bond,” which credits were stated by the clerk m the transcript of the record.

THE petition of William Brotan, and Miles B. Brotan, with the record annexed, represented to the judges of the Court of Appeals, that, on the 28th of September, 1811, a writ is - sued from the clerk’s office of the Superior Court of George County, in behalf of Mine’s executors, against them as “ heirs of F. Brown, deceased ¿infants, by James Knox their guardian,” in a plea of debt for 237/. 7s. 2id. with interest thereon from the 22d of November, 1793, and for 2SZ. 2s. 5d.…

<p>1. If a bond be executed to the acting partner of a cmnpa^yf1'a'6 deedfromsuch partner veying all his real and personal property,in trust, for of* his^debts and those of (vdthoiit mentioning the debts due to the company,) Considered assignment, of such bond, trustees,</p> <p>„ . ... 2. A writing, by which, the himself, heirs, See. to pay a sum of money, for vai^tnes^his88 hand, (saying seal')'!! ntrtan under seal, but a promissory note; notwithstanding- a scroll, purporling to bea seal, be annexed to the signature ; and. it be proved that the writing in question was “ executed” by the plaintiff; it not appearing, explicitly, that he seeded, as well as signed it. (J3”See Austin’s admx. vs. Whitlocke’s executors, I Munf. 487.</p> <p>5. If a defendant plead, as a set-off, an obligation of the plaintiff, commonly called a-single bill, assigned to him byathird person, and also a general plea of payment; and the writing produced appear not to be an obligation, but a promissory note, which is proved to have been executed by the plaintiff ; it ought to be received as evidence on-the second, though not on the first plea.</p>

<p>THIS was an action of trespass on the case, brought in 1 the court of Richmond county, on the 31st of March, 1807!, by John Darby against Thomas Cook, as “owner and master of a certain schooner, sailing and navigating from York river to divers places, in which vessel he was used to carry goods and merchandize for freight and hire.”</p> <p>The declaration charged the defendant with having received on board his said schooner sundry goods, which the plaintiff employed him to carry for freight or hire, from Baltimore to West Point, from West Point to Norfolk, and from Norfolk to West Point; all which goods he “ was bound safely to carry and deliver and that, “ contriving to injure and defraud the plaintiff,” he did not deliver them to the plaintiff, or his order, but, “ whilst the same were in his care as master and owner aforesaid, lost, secreted, destroyed and embezzled sundry large parcels thereof, &c.”</p> <p>The defendant pleaded “not guilty,” and “ the act of limitation;” to both which pleas the plaintiff replied generally.</p> <p>Ón the trial of the cause, it was proved on the part of the plaintiff, that he employed the defendant in the year 1792, to carry goods for him from Baltimore to West Point, and from West Point to Norfolk, and back again to West Point, on freight; that, in those voyages made by the defendant, “ he opened certain packs of goods, broached casks, and took from t/ie packages and casks a part of their contents, and converted them to his own use, without the knowledge or consent of the plaintiff,-^for which embezzlement this action was brought;” — whereupon, the counsel for the defendant moved the court to instruct the jury, that the act of limitations pleaded in the cause did apply to it, and barred the action, as there was no circumstance shewn, independent of the evidence above stated, to take the case out of the said act. The same counsel farther moved the court to instruct the jury, that the evidence aforesaid, if it proved any thing in prejudice of the defendant, proved that a civil action was not sustainable; the circumstances aforesaid amounting to a felony. But the court over-ruled the motions aforesaid on both points, and instructed the jury that the act of limitations did not apply, and the civil action was .maintainable. To which opinions of the court,' a bill of exceptions was filed. '</p> <p>A verdict was found, and.judgment rendered, in favour of the plaintiff, for g 14.0 damages; — which being affirmed by the superior court of law, the defendant obtained a writ of supersedeas from a judge of this court.</p> <p>The plea of the “ act Of limitations” was worded informally, not being in extenso, but is substantially sufficient; being, at least, as good as that' of “ conditions performed” to an action of debt on a bond with collateral condition ’; Which last mentioned plea is. received in every day’s practice, notwithstanding it is not shewn, by those two words, who performed, or what conditions were performed. The defendant always relies upon the act generally. If the .plaintiff relies upon any exception or equity, he must reply the particular matter.</p> <p>The county court appears to have decided upon the ge? neral principle, that the act of lipiitations cannpt be pleaded to a suit against a common carrier; which is certainly erroneous. Upon this point, therefore, the judgment ought to be reversed, and a new trial awarded. But the reversal must be in toto, because the declaration contains a charge ar»d the trespass is merged in the felony.(a)</p> <p>I understand it to be a settled rule of law, that the act of limitations can never be a bar, where the cause of action arises upon a trust, whether created by-deed, or arising as a legal consequence from the connexion between the parties.(b) In Jones on Bailments, p. 117, it is expressly said, that bailment is a delivery of goods on trust, %¿c.;” so that the idea of a trust enters into the very definition of the term. And between a common carrier and his employer, it is, perhaps, more necessary, than in- any other species of bailment, that this principle should prevail, on account of his superior facilities in eluding the operation of his. contract until the time of suing him would run ou.t. In this view of, the subject, then, .the statute cannpt bar.(c)</p> <p>But the bill of exceptions discloses a clear and gross , , . , jraud, and it is unnecessary to cite authorities to prove that the statute will not bar in favour of a fraud. The plea, too, is defective, in not being carried out, and is analogous to the plea of the word “ justification,” which is not good.(a) Nor does this objection render a refileader necessary, because another issue was made up, on the plea of “ not guilty.”</p> <p>The second question presented in this case, viz. whether a civil injury can be merged in a felony in this country, is, I believe, new in this court.</p> <p>The sole reason upon which the principle, that the civil injury does merge in the felony, in England, is- supported, is that, by the commission of felony, even before office found, the goods and chattels of the felon are forfeited, and there is nothing left to answer damages. The reason is founded on the necessity of the case. It would be absurd to contend for damages, when the only fund which could meet them is absorbed by the crown. But it will hardly be pretended that this reason has any application in this state, since the act of assembly of 1792, which takes away all forfeitures for felony. Nor, even without that statute, would the reason have applied ; because it is against the genius and spirit of the government established by the revolution. Thus, the 'maxim, “ cessante ratione, ccssat ijisaleoc,” applies with full force.</p> <p>That there is no other reason than that which I have assigned, for the doctrine as it exists in England, is proved by the fact that, in all cases of offences below the grade of felony, where there is no forfeiture, there is no merger. Thus, in trespass, in assault and battery, and other breaches of the peace, both an indictment and a civil action will lie. We are not to confound the reason of the forfeiture with the reason of the merger in consequence of the forfeiture. Forfeiture might very well have been made a consequence of felony, in order to restrain men from committing it, by the fear of entailing poverty on their families; and this reason would apply equally in all countries whose governments were not, in their nature, opposed to it. But it does not prove the existence of the other principle, in countries where no forfeiture can take place. Non can it be said that the injured party is deprived of his' reme» dy in damages, in order to make him a more disinterested, and therefore a more competent, witness to prove the felony. This argument would prove too much. It would prove that a civil action would not lie in any case where an indictment would lie. But the law is known to be otherwise, even in England, iri all cases of a breach of the peace below the grade of felony. It appears, therefore, that the only reason upon which the principle of merger is founded in England cannot possibly apply here.</p> <p>. Another reason is equally powerful, to shew that it ought not to apply.' By destroying the civil remedy, you invite to the compounding of felonies ; for the injured party would be strongly tempted to hush up the criminal prosecution, bn condition of indemnity for his own loss.</p> <p>But, in fact, it is not material to the case that this question should be decided. No felony is shewn on the record. Although, (as Mr. Wickham has said) it is felony in a common carrier to break open a packet committed to his charge, and convert a part of its contents to his own use, with a felonious intent, yet, if the act might reasonably have proceeded from necessity, or other innocent motive, the felonious in» tent, is not to be, presumed. Besides, in the eye of the law, every man is innocent until he is proved to be guilty. If Cook had been tried for the felony, and found guilty, the argument would have applied: if, upon súch trial, he had been found not guilty, surely the question could never' have arisen. As no trial has been had, this court by deciding that the civil injury is emerged in the felony, would assume the province of a court of criminal jurisdiction,-'and pro-bounce the plaintiff in error guilty of a felony. '</p> <p>Mr. Upshur’s argument, concerning trust and fraud, would prevent the act of limitations from being a bar to any action for embezzlement. I admit that, in cases of continuing trusts, the act does not apply until the trust has ceased. But, where the trust is only temporary; for example, to carry goods from one place to another ; — the trust ceasing immediately upon the embezzlement ; — the act of limitations runs from that moment.</p> <p>As to the fraud, the doctrine is that the act runs from the time of its being discovered.(a) If, therefore, the plaintiff wished to protect himself from the operation of the statute, he should have filed a replication, stating that he brought his action within five years after the discovery of the fraud.</p>

<p>1'. A sale of atoct ofl^nd, charged in ex-neces°sa’rilyn0t fraudulent and void as to the creditors at is^in 6custody6 but may be mad^tcfateno fide creditor, for a reasonable consideration, any secret* agreement, or between^the parties, that the land is to be holden for benefitof such debtor. .</p> <p>2. Where a charge of fraud is made m the bill, but deniswer” and testimony is such as to leave it doubtful, the court of equity to an issue to ascertain it'. ■ (J3°SeeMarshallv. Thompson, 2 M'unf. 212, to the same effeet,</p> <p>2. If a debtor, charged in execution, convey a tract off his land;, without a reasonable consideration, or with a secret agreement, or understanding,'that the person, to whom such conveyance is made, shall hold the land for his use ; and he afterwards take the oath of insolvency; a creditor, at whose suit he was not in custody, may file a bill in equity to have the conveyance set aside as fraudulent; and, upon its appearing that such was the case, such creditor ought to have liberty to make the sheriff a party to the suit, and obtain satisfaction of his claim as may appear right.</p>

<p>1. lía decree be pronounccd, by a supegj^ncery1 °* against an e'xacutor, in a suit brought aS'a,,I!s.t lum and Ins secunties,- but with- or exonerating by such decree; and the executor remove out °f wealth, with-°he samefa^ secoll<l suit may be ‘ brought themAu the superior ceiyVf any™ ?^ler, district, securities re-. thfkction'from CCT See the cases of Turner and °chiivJs execu tors and others, Gordon’s administrators v. the. Justices of Fre~ derich, IMunf.. ^md^ifiierfv Carter’s executors, 2 Murf, 24; Meade and others v. Brooking, 3 Munf. 548; Hairston v. Hughes and others, 3 Munf 568,(1.)</p>

<p>THI.S was an action of trespass^ for killing a mare, brought by the appellant against the appellee, in the County Court of Montgomery. - . a j .</p> <p>At the trial, on the plea, of not guilty, the coilnsel for the defendant asked a witness if he had not heard one Perry confess that he had killed the mare in the declaration mentioned. The counsel for the plaintiff objected to the question, and asked the opinion of the court'. The counsel for the defendant insisted, as Perry could not be compelled to give testis mony with regard to this matter, if present in court, because he might thereby charge himself with damages, that, therefore, his declaration not upon oath might be heard : the court was,of opinion with the counsel for the defendant, and suffered the question to be asked of the witness; instructing the jury -to weigh the circumstances under which the confession was made : to which opinion of the court the plaintiff’s counsel filed a bill of exceptions.</p> <p>Verdict and judgment for the defendant, which being affirmed by the Superior Court of law, the plaintiff again appealed to this court.</p> <p>This case depends on a single proposition. The question is, whether declarations not upon oath, by a person no party to the cause, that he was guilty of the trespass, could be given in evidence by the defendant ?</p> <p>It is clear law that hearsay evidence is not admissible, except in cases of pedigree, ancient boundaries, and the like. That person might have been examined as a witness, so far as to have discharged the defendant without charging himself ; for this he could have done without being compelled to acknowledge that he killed the mare himself. In the famous trial of Lord Melville, a majority of the judges were of opinion that Mr. Trotter ought to be examined, notwithstanding the objection of interest. But suppose this witness could not be examined : does it follow that the court was authorized to dispense with the established rule of law, that testimony is not to be received but upon oath ?' Such person, if brought to his oath, or if sited by the plaintiff, might say that he spoke the words in jest, that he could prove he was an hundred miles off at the time the mare was killed. Thus, by a combination between him and the defendant, tho plaintiff might be defeated altogether.</p> <p>action is brought for killing the plaintiff’s mare. If the defendant could prove that another person killed her, there is no doubt that he ought to be.exonerated.</p> <p>Hearsay evidence is generally rejected, on two grounds: 1 st, that there is better proof behind, which it is in the power of the plaintiff to produce ; and 2d, because the person giving testimony ought not to be believed without his oath. But neither of these objections apply in the'present case. We cannot compel.the person who was the perpetrator of the offence, to answer any question tending to criminate himself, (a) If we had brought him before the court, and asked him whether he knew that any body other than the defendant had killed the mare, he could not have been compelled to answer. The doctrine concerning hearsay evidence does touch the case. A person making ja confession may be credited, though not upon oath ; because it is against his own interest ;(b) for self-interest imposes an obligation equal to that of an oath. The confession offered here was the highest evidence it was in our power to produce.</p> <p>Besides, the court did not instruct the jury that the evidence of Perry’s confession was to be received absolutely, but only sub ?nodo. They received it as competent, leaving the jury to judge of the credibility of that confession, from the circumstances under which it was made; viz. whether it was uttered in jest, or not, by a person solvent, or not, &c.</p> <p>Peake, 184, proves the very position I contend for;'that Perry was examinable as a witness so far as his testimony might go to exculpate the defendant, though pot to inculpate himself. The confession of a party may be used against him, but not against a third . person. Besides, by receiving this confession-at second hand, the plaintiff, loses the benefit of cross-examination.</p> <p>The point decided in Hanson v. Parker, 1 Wils. 257, is undoubtedly clear law, but has no application to the case before us. In that case, proof was admitted, “ in debt upon bond, with condition for payment of money to a third person, Lydia Doyey,”. that she declared the defendant owed her nothing ; and such declaration was proper evidence, because Lydia Dcrvey was, in effect, the real plaintiff.</p> <p>In Holladay v. Littlepage, (as far as my recollection serves me,) the declaration of the captain of the vessel, in which ' Lewis Littlepage sailed to Europe, was considered as an act at the time of the voyage. The captain was a party to the transaction. The money for the passage of Lewis must have been paid to him by Lewis himself or by John Carter Uttlepage, the plaintiff; and his acknowledgment that the plaintiff paid it, only fixed the person of whom he received it. It was, therefore, with propriety, left to the jury. But that case is not like this.</p> <p>With respect to the manner in which the court’s instruction to the jury, now in question, was given; the court did indeed say, that the jury were to weigh the circumstances; but this they are to do in every case. The testimony was admitted as competent, without any reservation.</p> <p>The plaintiff loses the benefit of cross-examination in all cases where parol proof of declarations, by third persons, is admitted.</p>

ON the trial of an action upon the case for a malicious prosecution,.in the Superior Court of Prince William Coun-?

UPON a Writ of supersedeas to a judgment of the Supenor Court of Nottoway County. administrator of Dicey Bagley, brought his act*on debt against Peter B. Jones and John Efifies, administrators of Freeman Efifies, deceased ; stating in his declaration,' that a judgment (which :was described) had been rencfered, by the County Court of Nottoway, in his favour, . 3 against the said Freeman Efifies, administrator de bonis non of to be levied of the goods and chattels of the said…

AT the trial of an ejectment in the Superior Court of Dinwiddie county, in April 1812, the plaintiff, lessee of William Rowlett and Daniel Rowlett, offered in evidence a copy, certified in the usual form, by the clerk of Dinwiddie County Court, of a deed executed by Henry Daniel, sen. (who was, at the time oi executing the same, lawfully seised and possessefi of the premises in the declaration mentioned,) to Hen-1 ry Daniel, jun. (under whom the lessors of the plaintiff…

ON the 2d day of October 1806, a capias ad respondendum, in an action of debt, was issued from the clerk’s office of the ’ _ District Court, holden at Haymarket, in favour of John O. Ladd, against John Payne and William Hawke, endorsed, “ due by note, bail required, and directed to the sheriff of . Loudoun County. The sheriff’s return was, executed October 16lh, 1806, on John Payne; and Fleet Smith, Joseph Bread, and John Myers, his appearance bail.

<p>1. On the hear“S' oi » suitin ciiiiiiccry, it it discovered ínot niatared for hearing- as to some oí the defendants pears to have a tv_ ought not to be tusmissed upon the merits-, to against no equity,- as t0 „ other cíetcnctants3 it should be sent rules1 fW^arther proceedings; notwithstanding the pla-infifl may have been ne-, £?li{TCHt cDld the cause was pi-ematurely se* forbearing</p>

THE appellant exhibited his bill, in the Superior Court of Chancery for the Richmond District, against the appellee, on the 29th of September, 1809, stating, that pending an appeal from a judgment obtained by the appellee against .... • „ , , , „ . him m the superior court of law tor the county ox Henrico, to wit, on the 26th of March, 1802, he adjudged the amount J _ including damages and costs with Bartlet Still, the agent of the appellee, and gave him a draft on Lucas…

IjST August, 1811, the appellant filed a bill, in the supe-ior court of chancery for the Richmond district, against Benjamin Shreeve and Landon Carter, surviving executor . . of George Carter, praying an injunction to a judgment in an ac(aon trespass on the case brought by Shreeve, in the Haymarlset district court, against the complainant for overflowing, with a mill pond, certain land which he claimed as his and to all future actions for the same cause; and, that • ... the…

A SUIT wás brought in the- Superior Court of law for Fairfax county, against Mary Ward and Thomazin Ellzey, by William Gunnell and others','styled in the writ and decía? tión Justices of Fairfax County Court. On the writ the fob , . 1 lowing words were endorsed : “ For debt due by breach, of administration bond given for the faithful administration of John Ward’s estate. N. JFIerbt.fi. q. Suit brought at thereof Fowler’s administrators, Wm.

<p>i. Appeals — Costs—Two Copies of Record.† — If. on one appeal, two copies of the record he sent to the appellate court, and docketed on the motion of the appellant; he must pay the costs, occasioned thereby, to the appellee.</p>

Thomas Norvell, assignee of John Ellis, brought an act^on on a Promissory note, against Iioulder Hudgins, in the superior court of Mathews county. The declaration was *n ^ie usual form, except that no consideration for the assignment was alleged ; and, that the defendant was charg- ' . ., , . , , , , , . ed as not having paid the amount ot the note to the filamwithout any charge that he had not paid it to Ellis, the assignor.

IN the year 1753, Erwin Patterson, being possessed of lands on the Roanoke, m the then County of Augusta, now Botetourt, sold William Watson, of New .Castle, then in , »UIU .... ui 'V«auv, i'ivi' Pennsylvania, now Delaware, three hundred acres, opposite his Patterson’s then place of abode, and ten acres of meadow in a different place.

HenRy Enos and Ofihia his wife, and the same Henry Enos, administrator with the will annexed, of Martha Duller, deceased, exhibited, in the year 1809 or 1810, their bill in the Superior Court of Chancery for the Williamsburg District, against Elizabeth Garland and William Shackelford, setting forth, that Martha Dulier (whose first husband’s name was Guthrie, alter whose death she married Dulier, whom also she survived,) was a daughter of Daniel New ; that Daniel New made his…

<p>1. Under the 31st,°1809,UaiJ “ concerning and for other debtor was not entitled to a tion^oi^uTa saleoftheproperty on eredit, on any ’bond°&-x£c\ited after the passage e .</p> <p>Y rs^of ^the 13th section of oSrine^'the" debtor to pay «ill costs &c. did not ’ emoí anle under the 14th sectlon' ‘</p>

<p>gciRE facias was issued from the .clerk’s office of AIbemarle County Court, in favour of the surviving partners pf MiCredie, Higginbothqm and Company, against Bezaleel Brown and Benajah Brown, jr. special' bail For William T. Henderson and Matthew Henderson ; to recover of the said amo,}nt a judgment obtained by the said company against their principals. The sheriff’s return was “Febvuary 5th, 1808, executed on Bezaleel Brown ; Benajah Bropn no inhabitant.v A common order was, thereupon entered against the defendant Bazaleel ; and another scire fa~ ciqs awarded 'against Benajah Brown ¡ but whether it was issued, or not, does not appear. At May term, 1808, the office judgment was set aside on the motion of Bazaleel Brown ; and he pleaded a special plea, “ that the plaintiffs ought not to have execution against him for the debt in the scire facias mentioned, because, he saith, the same Matthew Henderson mentioned in the scire facias was by him delivered up to the sheriff of Albemarle County at the suit of the plaintiffs ; and that they, the plaintiffs, did then and there release and discharge the said Matthew Henderson from the custody of the sheriff; and this he is ready to verify and “ the plaintiff replied generally.” On the 8th of August, 3810, “the defendant Bazaleel Brown, by leave of the court, withdrew his former plea; and thereupon the following special plea was filed ; to wit, The defendimos come and defend\ Sec. and say, that the plaintiffs ought not to have or maintain their action aforesaid, nor ought they to be charged as bail aforesaid, because they say they entered into the recognizance set forth in the scire facias, as bail for a certain William T. Henderson and Matthew Henderson, joint obligors in a bond to M(Credie, Higginbotham, id Co., upon which the judgment was recovered, upon which it is attempted to charge the defendants as bail; that Matthew Henderson, one of the obligors as aforesaid, was delivered up by his bail, in due form of law, after judgment in the case aforesaid was rendered ; and was in actual custody of the sheriff; and, whilst the said Matthew was in actual custody as aforesaid, the said plaintiffs, by their attorney, duly authorized for that purpose, discharged the said Matthew from the custody the sheriff, by a written order, the substance of which is as follows : “As agent for MiCredie, Higginbotham, id Company, and by direction of David Higginbotham, one of the firm, I do consent, that Matthew Henderson, who has been delivered up by his special bail to the sheriff at their suit, may be discharged from custody. D. Carr, 15th July, 1807. And the defendants aver, that the said suit, in which the said Matthew was delivered up by his bail, is the same suit which the judgment was rendered, with which they are now attempted to be charged as bail, and no other or different ; and this they are ready to verity, &c.”(1)</p> <p>To this plea the plaintiff demurred generally; heading demurrer with the words “ Higginbotham in’ Co. vs. Brown’s scire facias,” and describing the plea as “ the said plea of the said defendants “ to which demurrer the defendants, by their counsel, filed the following joinder, to wit : And the said defendant, for that he hath sufficient matter in law to bar the plaintiffs from having their said action against him, Scc.firays judgment, &c.”</p> <p>Gn argument, the court sustained the demurrer, and rendered judgment, “ that the plaintiffs have execution against the said defencfezwis /’ “ from which judgment the defendants, by their attorney, prayed an appeal to the Superior Court of law,” where it was reversed, on the ground, “ that the defendants had pleaded jointly, a demurrer Was filed to the plea of one of the defendants, that one defendant ‘joined in demurrer, and the judgment was against both.” The cause was therefore ordered to be remanded to the County Court for farther proceedings.</p> <p>From this judgment of reversal, an appeal was taken to the court of appeals.</p> <p>The record states that “ the defendants, by their attorney, filed the joinder iri demurrer; and, although” it says afterwards, “ the defendant,” this must be considered a clerical mistake, as in Mackey v. JFuqua, 3 Call, 19.</p> <p>„ The only question in the cause is, whether, upon the'filead- , ings, the law is for the appellant ?</p> <p>The undertaking in the recognizance was for delivering up both the Hendersons, The plea is,- only, that one was surrendered. This is bad on general demurrer.(a) Where a plea professes to answer the whole declaration, and exhibits a bar to part only, it is bad. The law requires a complete. discharge of the recognizance, which could not be accomplished by surrendering only one of the defendants.(b) And the plaintiff’s suffering the defendant, who was in custody, to be discharged by the sheriff, did not discharge the judg- & ment.</p> <p>There was unquestionably a plea put in by both the defendants jointly. The demurrer speaks of a plea by the defendant, in the singular number. The joinder in demurrer is by one defendant only. The words “ he” and “him” and the whole context, prove this. These pleadings were acts of the attornies in court; not of the clerk. In Mackey v. Fuqua, it was altogether a clerical error.</p> <p>2. Mr. Williams says the surrender of one defendant was no discharge of the recognizance. But we contend that the discharge of one was a discharge of both, and rendered the surrender of the other by the bail unnecessary. In this case, one of the Hendersons was surrendered by the bail, and not charged in execution : but, if he had been charged in execution, this subsequent discharge would have operated as a release to the other.(c) It may be said, that, as he was not ' . . , . ,. . , , , charged in execution, his discharge by the plaintiff s attorney will not have that effect. But by virtue of the act of assembly,(d) the bail was discharged immediately upon the surrender. And I contend that a discharge of the defendant from custody, after judgment, is a release of all right to sue out any execution against him.(e) At all events, it is a release of ar.y right to take his body. The act of assembly should be strictly construed in favour of liberty. It authorizes the , , ... , . . . . plaintiff, where he has been merely passive, m not charging the defendant in execution, within twenty days, to sue out any legal execution afterwards ; but it does not apply to a case where the plaintiff, or his attorney, has actually discharged the defendant. Both the defendants must stand on the same footing, and claim equal justice. Where the plain» tiff has made his election not to hold one of them in custody, he cannot take or accept the body of the other ; neither carl he, in any case, separate the fate of the defendants by his own act. The discharge of one of them, therefore, operates-in favour of the bail.</p> <p>3. The scire facias in this case is obviously illegal ’and void, being in behalf of William Brownwd David Higginbotham, surviving partners of MiCredie, Higginbotham if Company, without mentioning the names of the partners of whom .the company consisled.(a) This is an action upon a recognizance. If a recognizance was given to “ the executors of A. B.” without setting forth their names, it would be void ; and that now in question is equally defective.</p> <p>The court will go back to the first error in the proceedings ; and, since the scire facias is defective, it must be quashed. It is also faulty in not stating who were the partners at the time of the judgment, and who had died. It states the consequence or inference from facts, instead of the facts themselves, as it ought to have done, according to the forms of pleading, which are good evidence of the law.(b)</p> <p>4. The recognizance does not appear to have followed the law.(c) It is described in the scire facias as binding the goods and chattels of the bail, without saying any thing of their lands and tenements, which .ought also to have been bound. Such is the form, expressly, in England ;(d) and the effect in this country is the same, where the form prescribed by the act of assembly is pursued. In both the forms, too, there is a stipulation, that, if the defendant do not surrender his body in' execution, the bail will do it for him : and there is no such stipulation here.(1)</p> <p>The first objection is, that the issue made up on the demurrer is by one defendant only, and the judgment against both. But, I answer, the pica demurred to is the joint plea of both defendants; both relying on the J 1 . same matter oí defence. The caption of the demurrer is as to both, although the body of it uses the singular number. The plea being one, the demurrer, going to the matter of the plea, is indivisible in its application to the defendants : — it cannot dispose of the defence as to one, without disposing of it as to the other. If the defendants had severed in their pleas, there would have been some ground for the opinion of the court below', because it would then have been uncertain which plea was adjudged insufficient s but the plea being one and the same, and the matter of defence one and identical, the demurrer cannot try the sufficiency of that defence as to one, without trying it also as to the other. For, if the same matter be adjudged insufficient to avail one defendant, it must be equally insufficient to avail the other. The judgment upon the demurrer, therefore, must of necessity affect both defendants equally, and rightfully included them.</p> <p>The defendants, too, have waived this informality by their joinder. The entry is, that the “ defendants,’s by their counsel, filed the following joinder. It is true, the joinder then proceeds in the singular number; but this is the act of the defendants themselves. The joinder being filed by them both, is effectual as to both.(a)</p> <p>II. The second position of Mr. Wickham, is, that the discharge of the one defendant, who - was surrendered by Eh® bail, was a discharge of the whole judgment, and, of course, the. bail.</p> <p>The authorities, cited under this head establish the principle, that, on a joint judgment against two, if the plaintiff take one in execution and discharge him<, it is a satisfaction of the judgment. And, if this was a discharge from execution, the cases apply, and the cause is decided : — if not, they are inapplicable, and do not affect the cause.</p> <p>In this case, there was no discharge from execution, unless the defendant was in execution by the mere render of his bail; for nothing else was done to put him so. But the render of a defendant by his bail does not put him in execution; 1st, because, after the render, our act of assembly requires him to be charged in execution by the plaintiff, before he can be considered as ■ being in execution, which would be idle if the mere render had that effect: — 2dly, because, if the defendant were in execution by the mere render, neither the.court nor sheriff would have the power to discharge him: for, once in execution at the plaintiff’s suit, it will be admitted as clear law, that only the plaintiff or the act of God could discharge himbut the act of assembly gives both the court and sheriff, after twenty days, the power of discharging him from custody, without the authority of the plaintiff, and merely on the ground of his not being charged in execution.</p> <p>Again ; if the surrender by the bail has the effect of putting the defendant in -execution, it is in the power of the bail to abridge the plaintiff’s right of electing what execution he will take s — -for, the body once taken in execution, the plaintiff has gotten his whole satisfaction, and cannot resort either to the lands or goods of the defendant.(a) Now, there is certainly nothing in the nature of the contract between the plaintiff and the bail, which gives the latter the right of dictating the satisfaction which the former shall take. If so, bail would be a mischief, instead of a benefit. ' ' '</p> <p>Besides; — if the defendant was in execution, a discharge ¿herefrom, with the knowledge and tacit permission of the plaintiff, (without any actual or written discharge,) would amount to a satisfaction of the debt, and he could never afterwards be touched either in his person or property .(a) But a discharge on a surrender will not have the effect of exempting even his body from execution :(b) — “for it is, (says Hobart,) but a forbearing for the time to receive him upon his own offer; and not a renouncing or releasing of his own act of execution, when he shall see cause.’5 It is . . , . r. . said, indeed, in Barnes 376, that if a defendant, after judgment, be superseded for want of being charged in execution, his person cannot be afterwards taken in execution. But this was a mere obiter dictum, and is confronted by Comym and Hobart, if attempted to be established as a general principle. It is not said, that the discharge of one defendant on supersedeas, for want of being charged, will exempt a co-defendant; — and, conclusively, the authority admits, that the goods and lands of such defendant, so discharged, are still liable, which they would not be if he had been in execution and discharged therefrom. But, on this subject, our act of assembly removes all difficulty, by expressly declaring, that where, upon the surrender, the defendant is discharged from custody with the knowledge and permission of the plaintiff', in consequence of his failing to charge him in execution, he shall still be liable to any execution which the plaintiff may elect to sue out.</p> <p>For another reason, the defendant is not in execution upon the surrender by the bail. It is, that execution is the act of the plaintiffand cannot be.without his authority. The plaintiff has the right to elect what satisfaction he will have for his judgment; and, having made his election, he is bound by it. But the aet of the bail is not the act of the plaintiff; — and it would be strange to bind the plaintiff by an election, made by another, without his privity and consent.</p> <p>The very reason of the principle, that the discharge of one defendant from execution is a discharge of all the rest, furnishes a farther argument to shew, that the mere render by the bail does not put the defendant in execution. The reason assigned by Mr. Wickfiam is not the true one; viz. that the law will not suffer the plaintiff to press harder on one defendant than on another. If this were true, the law would not permit the plaintiff to confine one( defendant, and leave the rest at large ; — which it will do. Nor is it the reason, that the taking of one defendant is a satisfaction of the debt; for, if so, the plaintiff, having taken one, could not take the rest: — but he may take them all in succession,«-^-or he may take part, and demand the rest from the. bail.(a) The true reason is to be found in the unity of the judgment, and the unity of satisfaction to which the plaintiff is entitled ; — in his being bound by the election of the satisfaction, which he has made -and the confession of satisfaction, which the law infers from the discharge of the man whom he has himself taken and imprisoned. But this reason is wholly inapplicable to the case of a man whom he has not himself taken and imprisoned ; — and, the reason of the principle not existing, the principle itself will not apply.(b)</p> <p>The result is, that the defendant was not in execution by the mere render of the bail : he was in custody of the sheriff, but not in execution ; and since he was not-in execution, the consent to discharge in this case was not a discharge from execution. The act of the plaintiff’s agent was therefore, in effect;, a mere electibn not to charge in execution. This will ■ be appárent, if we consider why the defendant is to-be either charged in execution, or discharged, At once, if surrendered in court ; and, why he may remain twenty days in custody, if surrendered to the sheriff in pais. In the first instance, the plaintiff is in court, conusant of the surrender,.and must elect at once; in the second, he is ignorant, of the surrender; and the law gives him twenty days to receive notice of the fact, and -make his election. But, because so much time may not in every case be necessary, the defendant may be discharged sooner, if "sooner ¿he plaintiff determines his election. In this tase he did determine his election before the twenty days .had expired, •and consented to the defendant’s discharge, not from eiteculion, but from that custody of the sheriff in which the bail had placed him. In other words, he signified his refusal to charge him, in the words of the act of assembly. And, consequently, by the express provision of the act, which merely affirms the principle of the common law, as pronounced by Comyns ist Hobart, the same defendant, and much more his co-defendant, was left open to the plaintiff’s execution. And so, the judgment was not satisfied, nor the bail released by that discharge.</p> <p>III. It is contended that the scire facias is illegal and void ; 1st. Because the recognizance, on which it is founded, having been to MiCredie, Higginbotham id Co,, without specifying the names of the partners, was entirely void. But the recognizance is no part of this record. If the bail had a mind to take advantage of any defect in it, he should have craved oyer, and made it a part.(a) Whether the original suit was in the name of M-Credie, Higginbotham 1st Company ; and, if so, whether the declaration therein was defective, forms no part of the present enquiry. For the bail can take no advantage of errors in the original suit. The scire facias, as to him, is a new suit, and he cannot look farther back; even to the recognizance, unless he make it a part of the record, by oyer.(b) But, in this case, the bail, by pleading satisfaction in bar, have admitted the original right of the plaintiffs, founded on the recognizance, and relinquished such objections as that now in question. If, however, the recognizance had been part of the record, and given to MiCredie, Higginbotham ci Co., would it have been void on that account ? — Merchants gain, and give, credit in the name of their firm. In this there is no imposition, because they who deal with them know what persons constitute the firm. All bills and other contracts on the part ef the firm are signed in that name ; and all undertakings to them are constantly given to the firm in like manner. The principle contended for, on the other hand, goes to declare all such engagements void, because in the name of the firm. Such a principle would spread havock, far and wide, among the mercantile part of the community.</p> <p>2dly. It is said, that the names of the partners at the time of the judgment, and the deaths of those who die;,, should, have been specially stated in the sci.fa. But this objection is not founded in reason, or in law. In reason, saying that the plaintiffs are the surviving partners, is saying that the rest are dead. In law, a declaration's sufficient if it give the names of-the surviving partners, and allege them to be so, without' stating the deaths of the others ; and a fortiori, where the plea admits the plaintiffs to be the surviving partners ; as in this case.(a)</p> <p>IV. The recognizance is alleged to be defective in not following the form prescribed by law. To this objection, as to the-former, the answer is conclusive ; that the recognizance is no part of this record. It was not necessary to set it forth in hcec verba ,- but only sufficiently to apprize the bail correctly" of the cáse ; and that this has been done is admitted by the plea, The nature of the undertaking of the bail is fixed by law, and not by the form of the recognizance : for the form prescribed in the Rev. Code, 1st vol. 113, does not, in terms, bind his goods and chattels, lands and tenements, but leaves that to the principles settled by law.</p> <p>It is unnecessary to crave oyer where the re-; cognizance is truly set forth in the scire facias, or to plead that which appears by the plaintiff’s own shewing.(b) The defects in the recognizance in this case appear on the face of the scire facias'.</p> <p>If a recognizance be good in substance, it is sufficient. The case of Read vs. Charnley, 2 Ld. Raym, 1224, proves, that words to the same purport with those in the customary form will have the samé effect,</p>

<p>THIS was an action of assumpsit, in the Superior Court of Prince Edward county, in favour of Jeremiah Alderson, against James Bigger, administrator of Tommy Bigger, deceased.</p> <p>The declaration was, “ for this, that the plaintiff, on the *0,b '-W °£ August 1798, in the County Court of Lunenburg, recovered a judgment, in an action of detinue, against the said Tommy Bigger, in his lifetime, for sundry valuable s^aves’ from which judgment the said Tommy Bigger appealed to the District Court, and from thence to the Court of ApPealsi where the judgment of the County Court was affirmed by the Court of Appeals, on the 1st day of October 1806» , and the said slaves finally adjudged to be the right and property of the plaintiff; and the said Tommy Bigger having, by means of the said appeals and proceedings, which may be more fully seen by referring to the record, delayed the exécuti°n °f the judgment of Lunenburg in favour of the plaintiff, the said Tommy Bigger did retain in his possession, and receive the services, use and profits of the said slaves, (they being the proper slaves of the plaintiff,) after the verdict and judgment aforesaid, in the County Court of Lunenburg^ for a long time, that is, from the 10th day of August 1798, till the 1st of October 1806 ; whereby the said Tommy Bigger, in his lifetime, became indebted to the plaintiff in the sum of one thousand pounds, for the services, use and profits, of the said slaves of the plaintiff, after the time of obtaining the said judgment of Lunenburg. And the said Tommy Bigger, being so indebted, afterwards, to wit, on the --day of-in the county of Prince Edward, aforesaid, assumed upon himself, and then and there faithfully promised, that he would pay to the plaintiff the said sum of one thousand pounds, when the said Tommy Bigger should be thereto afterwards required,” 8cc.</p> <p>The declaration contained also, counts for money had and received s and quantum meruit for work and labour done i concluding in the usual form. The defendant pleaded nonassumpsit, and the ant of limitations.</p> <p>At the trial, the plaintiff produced in evidence the records of the proceedings in the action of detinue, brought by him against Tommy Bigger, in the County Court of Lunenburg, and prosecuted in me District Court and Court oí Appeals ; from which it appeared, that a verdict was found in his favour, on the 10th of August 1798, for the slaves in question, if to be had ; if not, for their respective values ; and fifty pounds damages for detention ; and judgment was entered accordingly; which was afterwards reversed by the District Court, and the cause retained for a new trial; that, on the 2d day of October 1801, the trial was had, and a verdict found in like manner; assessing the damages to seventy-five pounds ; according to which verdict, a judgment was rendered by the District Court; that, on the 21st day of October 1806, the Court of Appeals reversed the last mentioned judgment, and affirmed that of the County Court.</p> <p>The defendant, by his counsel, moved the court to instruct the jury, that, if it should appear in evidence tliat the defendant had paid the damages awarded in, and satisfied the judgment of the Court of Appeals, they should find for the defendant; which was accordingly done by the court ; to which opinion the plaintiff excepted. Verdict and judgment for the defendant; from which the appeal to this court was taken.</p>

UPON an appeal from a decree of the superior court of *r 1 chancery for the Staunton district, pronounced the 20th of November 1809. The appellant had recovered in ejectment, in the district 11 J court held at Morgan-town, a tract of land which was the subject of controversy.

THE Mutual Assurance Society against fire on buildings, in the state of Virginia, filed a bill in the Superior Court of „ _ ' . Chancery for the Richmond District, against Larkin Stanard, and Beverley C. Stanard and Robert S. Chew, trustees in a v deed executed by the said Larkin9 for the benefit of sundry creditors of his, who were also made defendants.

THIS was an action of covenant, in the county court of Cumberland, upon a writing in these words; — “ On or before the 25th day of December next, I promise to pay, or cause to be paid,' unto Mr, John Criddle, twenty-five barrels of good corn, to be delivered at Mr. Edward Merryman’s. Witness my hand and seal, this 5th day of August, 1809 — * Pleasant Merryman.” The declaration charged a breach, “ in this, that the' defendant did not, on or before the said $5th of December,…

<p>^ mol;on for a continu. g.,.ou’nc] t[-iat a material witness for the is absent, ^ ' mons for him to^tli^ sheriff ™ cJue time,) ought not to be over-ruled that^an^order was made at tem for^tii king the depositions of the parties de bene taken the deposition of that witness, onaccount of^ sence, princiPa%> tlle, continued. y fif</p>