Volume 4 — Randolph's Virginia Reports

This was an appeal from the Chancery Court of Lynch-burg. Anthony North filed his bill, alleging, that on the 10th day of March, 1823, Thomas A. North conveyed by deed of trust to Grief Barksdale several slaves and other property, for the purposes therein mentioned; which deed was recorded as to Thomas A. North, on the 11th day of the same month, and as to the other parties, on the 12th day of January, 1824; that on the 19th day of February, 1824, the trustee, having…

This was an appeal from the Chancery Court of Cynchburg. Anthony North filed his hill, alleging, that on the 10th day of March, 1823, Thomas A. North conveyed by deed of trust to Grief Barksdale several slaves and other property, for the purposes therein mentioned; which deed was recorded as to Thomas A. North, on the 11th day of the same month, and as to the other parties, on the 12th day of January, 1824 ; that on the 19th day of February, *1824, the trustee, having…

This was an appeal from the Chancery Court of Richmond. Wilson filed his bill, stating that in 1821, he purchased of Shackleford a negro woman and three children, for which he executed his bond payable six months after date, for $ 700 : that the complainant believed, from the statements and representations of the defendant, that the woman was sound and healthy, and gave him a sound price: that a few days (perhaps the next day) after she came into the possession of your…

<p>Vendor of Personal Property — Liability.—By the common law, the vendor of personal property Is not answerable for the quality of the thing sold, unless he either warrants its quality, or makes some false representation in respect to it, or, knowing of the defect, omits to disclose it; and this is the law of Virginia.</p>

This was an appeal from the Chancery Court of Lynch-burg. The bill was filed by Saunders, setting forth the following case: That John Pate obtained a judgment against James Wright, and sued out a Ca.

This was an appeal from the Chancery-Court of Eynchburg. The bill was filed by Saunders, setting-forth the following case ; That John Pate obtained a judgment against James Wright, and sued out a Ca.

The bill was filed by Oswald, Deniston 4’ Co. against Tyler, administrator of Hancock, praying that a new trial might be granted them, in a case in which they were plaintiffs, and the said Tyler defendant. The history of the case, and the various topics of argument are so fully displayed in the following opinions, that any other report would be superfluous.

<p>it is a correct course of proceeding, for a Chancellor to dissolve an injunction, upon the defendant’s- tendering a deed to the plaintiffs or filing it with the papers, without requiring it to be approved by the Courts before the injunction shall be dissolved.</p> <p>The general rule is, that parol evidence cannot be admitted to contradict, explain, or alter a written agreement; but may be received to prove fraud, mistake or surprise, in the execution of it. But in the latter case, the evidence must be strong and clear.</p> <p>An affidavit taken by a party, may-be read in the cause, although the party taking it may wish to suppress it, because it operates against him.</p>

The first of these cases was an appeal from the Staunton Chancery Court; and the second, an appeal from the Superior Court of Law for Rockingham county. The subjects of the two were so connected, that they were argued and decided at the same time.

<p>This was an appeal from the Superior Court of Law of Montgomery county.</p> <p>Ruth and her six children, brought an action of assault and battery against Sallust, to. recover their freedom. The defendant pleaded that the plaintiffs were slaves; on which plea issue was joined. On the trial, the defendant filed a ¿|emurrei. to the plaintiffs’ evidence; all the material parts of which are fully stated in the opinion which follows. The Court decided in favor of the plaintiffs; from which judgment, the defendant appealed.</p>

<p>This was an appeal from the Staunton Chancery Court, where Thomas S. Coulter, filed his bill against Robert Stuart, Reuben Withers, John Coalter, Francis JLdair, William Jldair, James Jldair, and John Jldair. The case stated is briefly as follows: The land in question was owned by the heirs of John Switzer, who sold it to John Coulter, the brother of the complainant. A conveyance was made by some of the heirs to John Coalter, but the others had never parted with the legal estate. The bill, however, states, that all the heirs either have made, or are ready to make, a conveyance at any time. It also alleges, that although the contract was made solely in the nqme of the said John Coalter, and the title papers taken-in his name, yet the purchase was for the benefit of the complainant, as well as the said John: that the complainant has been put into peaceable possession of his undivided part of the said land, his right to which is not contested by his brother: that he has since discovered that a part of the boundary is disputed by some of the coterminous tenants, viz: Stuart, Withers, and the representatives of Jldair : that the complainant wishes to obtain a partition of the said land with his brother; but this cannot be effected, in consequence of the uncertainty .produced by this contest of the boundary: that he also wishes to have the question of boundary settled, but he has not the legal estate, by which he could go into a Court of Law, and if he had, it would require a multiplicity of suits to settle all the questions. He therefore prays, that the true boundary may be settled and adjusted; that he may be quieted in his possession within that true boundary; and that a partition may be made, between the complainant and his brother.</p> <p>The representatives of Jldair answered, contending that their boundary line was the true one; and John Coalter acknowledged that the contract, though made in his name, was principally for the benefit of Thomas S. Coalter ; and declared his willingness to make partition with the complainant.</p> <p>The Chancellor decided in favor of the complainant, and the defendants appealed to this Court.</p> <p>1. The bill is nothng more than an ejectment brought in a Court of Chancery. It is not competent for a person having an equitable title, to sue in equity one who holds an adversary title, asserting the legal title in his trustee.</p> <p>2. The appellee has not only brought one ejectment in equity, but he has brought several ejectments in one suit, for distinct tracts of land, held by distinct titles.</p> <p>3. If such a suit could be maintained, it must be on averment and proof, that the trustee refused to bring an ejectment, in his own name. But here, there is no such averment or proof. The trustee never objected to assert his legal title.</p> <p>4. The Switzers are not before the Court. They claim apart of the legal title, and ought to be made parties.</p> <p>The jurisdiction may be sustained on two grounds:</p> <p>1. The plaintiff comes with an equitable title, which could not be asserted in a Court of Law. The assignee of a bond could bring a suit in equity before our Statute; yet, he might have called on the legal owner to bring a suit against the obligor. A cestui que trust may injoin an execution against his trustee, in a suit brought by a third person; and he is not required to use the name of the trus* tee.</p> <p>. The object in coming into this Court, was, to ascertain what the subject was to be divided. Tenants in common have an original right to go into a Court of Equity fovpartition.</p> <p>2. On the ground of a bill of peace, the appellee had a right to resort to equity. Mitf. 127. Lord Tenham v. Herbert, 2 Atk. 484. Mayor of York v. Pilkingion & al. 1 Atk. 282.</p> <p>' It is objected, that Switzer’s heirs ought to have been parties. If this objection were just, the only consequence would be, that the cause must be sent back, to have them made parties. But it was not necessary. They have sold their interest, and have nothing to claim.</p>

<p>This suit was originally brought in the County Court of Albemarle, and afterwards removed by Certiorari, to the Staunton Chancery Court.</p> <p>John Smith, William Grayson, William Wood, and Claudius Buster, for himself and his son, John Buster, filed their bill setting forth the following case: that a controversy having arisen between the complainants and Thomas Smith and Susanna Smith, respecting therightof property in three negroes, to wit: Robin, in the possession of the said Thomas Smith, and Milly and Maria in the possession of the said Susanna Smith, the parties mutually submitted the said controversy to the final determination of five persons, by a writing under their hands and seals, in the penalty of $1000: that the said arbitrators decided, that the three slaves above-mentioned should be equally divided among the heirs of Thomas Smith, deceased, by virtue of which the complainants became entitled to their proportion of the said slaves; that the complainants fully performed thejuvard on their parts; but the 'said Thomas and Susanna Smilh~still retain the said slaves, pretend ingthat the award was illegal.</p> <p>The bill proceeds to state, that inasmuch as the complainants cannot have an adequate remedy in a Court of Law, there being no form of action in which a specific performance can be decreed, &c. they call upon the defendants to answer whether the submission was not entered into as stated in the bill; whether the award was not made as alleged, &c. But there is no prayer for relief, either general or, special.</p> <p>The answer of Susanna Smith states, that her father, Thomas Smith, by his last will, bequeathed to her a negro woman named Winifred, whom he was to receive at the death of the mother of the defendant; that the defendant was then a married woman, being married to a certain Thomas Smith, now deceased; that not long after the death of her said father, her mother gave up the said negro woman, together with her child, which the defendant always understood she was delivered of, after the making of the said will, and before the death of her father; which said woman, and her child named Milly, now .in dispute, have been held by the defendant upwards of sixteen years; that the child of the said Milly, named Maria, also in dispute, is now. about four years old; that the defendant’s brother, Thomas Smith, who was residuary legatee of his father, assigned over to the defendant all interest that he might have in the said Milly and Maria. The defendant denies that she ever insisted that the matter should be left to arbitration; and she was only induced to come into that measure by the threats of the complainants, that she would be ruined at law; that when her counsel attempted tosíate the law to the arbitrators, he was interrupted by one of the arbitrators, who told him he made false statements, and he immediately sat down; that such an award ought not to have been made, because the whole of the legatees of the said Thomas Smith were not present, and did not know any thing of the business, and that Claudius Buster had no l»gal power to enter into any contract in behalf of his son John, &c. ,</p> <p>Thomas Smith answered, that immediately after the death of his mother, the said John Smith made a demand, of the slave Robin, as heir at law, in order to sell him and divide the money among the different legatees; which demand, the defendant refused, believing the slave to be his own property, as there was a clause in his father’s will, that his estate should not be appraised, and he being the residuary legatee: that he submitted to the arbitration, in consequence of the threats of the complainant John. He charges that the award is not binding, because the submission was improperly made, the whole of the legatees not being present and consenting thereto; and it also embraces parties, who are entirely out of the submission.</p> <p>The bond of submission is signed by Thomas Smith, Susanna Smith, John Smith, William Grayson, William Wood, and Claudius Buster, for himself,and son.</p> <p>The will of John Smith was proved in the year 1783.</p> <p>The arbitrators awarded, that the three negroes in dispute should be equally divided among the “ heirs of Thomas Smith deceased.”</p> <p>The Chancellor decreed that the bill of the plaintiffs be dismissed, without prejudice to any remedy they may have at law; and the plaintiffs appealed to this Court.</p> <p>contended that the award was right in principle. The bequest of the woman Winifred to Susanna Smith, could not convey her increase born after the date of the will, and before the death of the testator. No case justifies such a construction. The law, at the time of the death of the testator, gave the slaves of an intestate to his eldest son, and he was accountable to the other distributees for their proportionable value. The testator died intestate as to the slaves in question.</p> <p>It is said, however, that Chancery has no jurisdiction in this case. But it is an established principle, that Chancery has jurisdiction, wherever a specific execution is demanded. Smallwood v. Mercer & Hansborough, 1 Wash. 290. As to the award being void, because it extends to persons not parties to it, the case of Richards v. Brockenbrough, 1 Rand. 449, proves that such an objection will not vitiate an award, but that it will stand good as to the real parties, and" all the rest be rejected as surplusage.</p> <p>The bill is imperfect, as it does not pray for any relief. But there are serious objections to the award itself</p> <p>1. There are not proper parlies. All the distributees interested ought to be before the Court, that the whole case might be decided.</p> <p>2. The award is void, because it does not follow the submission. That only required the arbitrators to decide the question between the parties to the submission ; but they have gone on to settle the rights of the “ heirs of Thomas Smith,” many of whom are no parties to the bond.</p> <p>3. It is void for uncertainty. The award decides that the estate shall be divided among the heirs of the testator, when there was but one heir, under the law as it then was. The law of that day did not apply to such a case as this. It only applied to a case of intestacy ; here, there was a partial testacy. Grand children are not included in the provisions of that law. The award does not say whether there shall be a distribution per capita or per stirpes.</p> <p>As to jurisdiction, a Court of Equity ought not to have it, because there was a most appropriate remedy at law. A jury would give damages in a suit on the arbitration bond, to the amount of the aliquot part withheld from the party aggrieved.</p> <p>It was competent for some of the parties to refer their own interests to arbitration j but if they meant to refer the •whole subject, all parties must unite in the submission. Britton v. Williams, 6 Munf. 453.</p> <p>referred to Wood v. Griffith, 1 Swanst. Rep. 54, to prove that equity may decree the specific execution of an award; and he contended that where parties refer a doubtful point of law to arbitration, a Court will never set aside the award, though it may be contrary to law. On the degree of uncertainty which will be tolerated in an award, he referred to Macon v. Crump, 1 Call, 500. By “ heirs,” the arbitrators meant, persons entitled to distribution. Words must be construed secundum subjectam materiam. The bill may be amended, even after-a hearing, by making new parlies.</p>

This was an appeal from the Chancery Court of Fredericksburg. The bill was filed by William S. Jett against the administrators of Moses Hunter, deceased, Henry St. George Tucker, Henry Lee, and Peter R. Beverley. The following opinion gives a complete view of the history of the case, and of the different topics of argument.

<p>Appearance bail enters into a recognizance of special bail, before a Judge, in the country. He commits it to his son, to be delivered to the Clerk of the Court where the suit was depending. The son delivers it to a lawyer, who practised in that Court, and who promised to deliver it in time. The lawyer forgets his commission, and the office judgment is confirmed against the principal and his appearance bail. A Court of Equity will not grant relief in such a case. Decided by two Judges, one dissenting.</p> <p>The principles on which relief will be granted to bail.</p>

<p>The same strictness, as to form, is not required in actions for freedom, as in other cases.</p> <p>"Where the defendant, in such an action, by his plea, protests that the plaintiff is his slave, and that he is not guilty of the assault, &c. the plaintiff replies that “ by reason of any thing by the defendant in protesting alleged, he ought not to be barred, &c.?> because he is a free person, and issue is joined on this replication % this issue, although irregular, will be sustained after verdict.</p> <p>Where the judgment directs that the plaintiff shall recover his freedom, “ and that he be discharged from the imprisonment in the declaration complained off the latter clause will be regarded as mere surplusage, as the first part of the judgment had the effect to discharge the plaintiff from the custody of the defendant.</p> <p>Where such an action is brought by one person, for himself and others who are infants, the declaration, though informal, is substantially good.</p> <p>A verdict may find generally for either party, dependent upon a'single point of law presented to the Court, although such a verdict is not strictly a special verdict.</p> <p>The wife of a man removing to Virginia with his slaves, is not competent to takfe the oath required by the Act of 1792. Rev. Code, eh. 103.</p> <p>The Act of 1819, which releases all forfeitures and penalties incurred under former laws, and not already recovered or enforced, does not apply to the case of slaves illegally imported, who acquired a vested right to freedom, as soon as the violation of the law was complete.</p>

<p>The Court of Appeals has no jurisdiction in the case of an information against the members of an unchartered bank, for a violation of the law of 1816, % Hev. Code, 111, because that Act is a penal law.</p>

The Attorney General filed an information in the Richmond Chancery Conrt, against John C. Scott and William M. Thompson, under the Act of 1816, 2 Rev. Code, ill, the one as president, and the other, as treasurer of an unchartcred banking company, in Culpeper county.

Charles Lewis, brought an action of debt upon a protested negotiable note, in the Superior Court of Campbell county, against Benjamin Perkins, John Moore, Archibald Hatcher, James (V Dibrell and David Saunders, Jr. 'The writ demands $1395 59, and $500 damages; but does not demand interest, nor the costs of protest.

<p>An administration granted in another State, does not give the administrator ap* pointed there, a right to sue jointly with an administrator appointed in Virginia»</p> <p>In an action on an attachment bond, by which the obligor was bound to pay all costs and damages, which might accrue to the obligee, in consequence of suing out the attachment, it is not necessary that they should be previously assessed in some other action, to justify an action on the bond.</p> <p>The certificate of probate or of administration granted by a Court of this State, and attested by the clerk, will enable the executor or administrator to act, and may be given in evidence in any Court of this Commonwealth.</p> <p>In an action on an attachment bond, it is not sufficient to allege in the declaration, that the defendant '* did not pay all such costs and damages as have accrued &c” but it must be expressly averred, that costs mid damages had been actually sustained,</p>

Burke and his wife brought an action of detinue against Sydnor, for “ certain goods and chattels, slaves and stocks, of the value of. $2000, to wit: Billy, a slave, of the value of $500; Allen, a slave, of the value of $800; 28 head of horned cattle, of the value of $ 280; 5 horses, of the value of $250; a stock of hogs, of the value of $20; one set of blacksmiths’ tools, of the value of $ 30; and four beds and furniture, of the value of $ 120.” The declaration avers…

Burke and his wife brought an action of detinue against Sydnor, for “certain goods and chattels, slaves and stocks, of the value of $2000, to wit; Billy, a slave, of the value of $500; Allen, a slave, of the value of $800; 28 head of horned cattle, of the value of $280; 5 horses, of the value of $250; a stock of hogs, of the value of $20; one set of *blacksmiths’ tools, of the value of $30; and four beds and furniture, of the value of $120.” The declaration avers property in…

This was an appeal from the Chancery Court of Staunton, where John Fate filed his bill against William M’Clure, Alexander M’Clure, George Lynham, James Breckenridge and Andrew Hamilton. The case, so far. as it is material to the present report, is briefly this. Pate became indebted to William M’Clure %' Co. and executed his note for the sum of $ 6584, on the 7th day of June, 1798.

<p>Bill of Exchange — Notice of Protest — Acknowledgment of Debt as Waiver of.† — When a bill of exchange returns protested, and the drawer, on payment being demanded, promises to pay, he cannot afterwards resist the payment, on the ground* that due notice was not given of the protest.</p> <p>Agents — Diligence Required of. — An agent without reward will not be required to use more diligence than would be used by a prudent man. in the-management of his own concerns.</p> <p>Deed of Trust — Injunctionof Sale — Death of Trustee.— Where a debtor who has given a deed of trust* injoins a sale of the property, and pending the suit, the trustee dies, the Chancellor, upon dismissing the bill, may direct the property to be sold by his. marshal.</p>

<p>These were two actions of debt brought in the Superior Court of Law for the County of Rockingham, by the appellees against John Clarke, on two single bills. Each writ was endorsed, “ Debt on single bill. Bail required.** These writs were returned executed, with. G. TV. Harris son as appearance bail. At the same time, papers, purporting to be bail bonds, were returned to the clerk’s office.</p> <p>These papers were in. the usual form, signed and sealed by John Clarke ■ and G. TV. Harrison, but no sum is mentioned in the penalty of either bond. Declarations were filed, and office judgments obtained against the defendant and G. W. Harrison, his appearance bail,</p> <p>Harrison applied for, and obtained a Supersedeas to these judgments, from a Judge of this Court.</p> <p>referred to the ease of Shelton v. Pollock & Co. 1 Hen. & Munf. 423, as decisive of this question.</p> <p>contended, that upon general principles, whenever a man signs a bond in blank, he gives authority to- another to fill it up. That this is true of negotiable paper, is proved by Chitt. on Bills, 35, 113. 4 Mass. Rep. 45. The same principle exists as to bonds. 5 Mass. Rep. 538. But the case of bail bonds is still stronger. Our Act of Assembly prescribes no particular form. It is enough for the sheriff to take the' engagement of the- bail, that the principal shall appear &c. This principle undoubtedly prevails in the case of forthcoming bonds. Wilson v. Beall, 4 Munf. 380. Bartley & Ferguson v. Yates, 2 Hen. & Munf. 398. The omission of a penalty is immaterial, as it is not required.</p> <p>A bond may be with or without a penalty. Such an error would not be fatal in England, where the Statute is more particular than in this country. Sell. Prac. 143. Rogers v. Reeves, 1 Term. Rep. 418. The bond is not in question here. Judgment has been obtained against the principal and bail, in the original suit.</p> <p>that there was no analogy between the case of a bond, and a mere promissory note, or a bill of exchange. A bond is a deed and requires delivery to perfect it. As for the Massachusetts Case, it is not law. The other cases cited, are wholly inapplicable.</p>

These were two actions of debt brought in the Superior Court of Law for the County of Rockingham, by the appellees against John Clarke, on two single bills. Each writ was endorsed, '“Debt on single bill. Bail required.” These writs were returned executed, with G. W. Harrison as appearance bail. At the same time, papers, purporting to be bail bonds, were returned to the clerk’s office.

<p>The intention is to govern in the construction of a will. Therefore, where a testator, who devised his real estate to his children, and also a sum of money to one of them, so that his estate, both real and personal, not specifically given, shall be brought into estimate, and divided in such manner as to make their portions equal? the sum of money bequeathed as aforesaid, shall be taken into the general estimate, although the terms specifically given and estimate, do not strictly apply to money, it being the plain intention, inferred from the whole will, to make all his children equal.</p> <p>Interest upou interest on a legacy, will not be allowed, unless the testator plainly requires it. ,</p>

<p>Where a bank note is cut in two, and one half sent by mail and lost, the holder of the remaining half has a right to demand payment at the Bank, upon presentation of the half in his possession, proving ownership, and giving bond with adequate security for the indemnification of the Bank.</p> <p>But if these pre-requisites are not complied with, and the Bank is sued in consequence of refusing payment, the holder shall not recover interest or costs, although he may perform the conditions after the suit is brought.</p>

<p>This was an appeal from the Superior Court of Law for Spottsylvania county. The case was this:</p> <p>Two motions were made upon due notice, by Reuben flitche.lt, against Joshua Long and James Cunningham, 'for the sums of $215 73, and $455 91, money which he had paid as surety on two forthcoming bonds executed by Long and Cunningham, and himself as their surety. The clerk certifies, that the plaintiff, in support of his motions, introduced two executions against Long and Cunningham, his appearance bail, and forthcoming bonds in pursuance thereof. These bonds are executed by Long, Cunningham and Mitchell, reciting in the condition, that a Fi. Fa. had issued against the goods and chattels of Long and Cunningham, his appearance bail, a negro man &c. of Long’s taken and released upon giving the said bond; but they do not state whether Cunningham was a principal obligor or a surety. They only state that Long “ hath tendered the above bound Reuben Mitchell, as security, &c.” The Sheriff states in his returns, that the forthcoming bonds were taken of the said Long and Cunningham, with Mitchell as surety. Judgments were obtained on these forthcoming bonds, executions issued, and the money paid by Mitchell, as appears by the return of the Sheriff.</p> <p>On these motions, judgments were rendered by default; and Cunningham obtained a supersedeas.</p> <p>The principal question made, was, whether, upon this record, Cunningham was to be considered as a surety or a principal obligor. The counsel for the appellee, relied, on the case of rreston v. The Auditor, 1 Call, <171, to shew that it ought to be presumed, that the Court below had evidence that Cunningham was a principal and not a surety; and that if the appellant contested that point, he ought to have made his evidence part of the record.</p>

The case was this: In September, 1823, Samuel Cottom, moved the Hustings Court of Petersburg, for administration of ¡he estate of Richard Cottom, deceased, by 'whose will the said Samuel had been appointed executor. The Court being equally divided, the motion was over-ruled, and an appeal taken to the Superior Court, where the judgment of the Court of Hustings was affirmed.

The case was this: In September, 1823, Samuel Cottom, moved the Hustings Court of Petersburg, for administration of the estate of Richard Cottom, deceased, by whose will the said Samuel had been appointed executor. The Court being “equally divided, the motion was over-ruled, and an appeal taken to .the Superior Court, where the judgment of the Court of Hustings was affirmed.

<p>The principal and surety to a bond obtain an injunction to a judgment against them. The surety dies pending the suit in .Chancery. ' After referring the cause to a Commissioner, exceptions to the report on account of set-offs disallowed, (some of which were claimed by the surety himself,) and the Court * rejecting them, because not filed in time, the injunction is in part dissolved, , and in part perpetuated? without making the representatives of the deceased plaintiff, a party. This proceeding is erroneous. A rule should have been given him, at the instance of the defendant, that unless he revived the suit by an appointed time, the injunction should stand dissolved.</p>

This-was an appeal from the Richmond Chancery Court, where Manson and Sturdivant filed a bill against Park-hill and others, trustees or committee for building the First -Presbyterian Church in the City of Richmond.

<p>Appeal from the Lnychburg Chancery Court.</p> <p>Carterl and others, trustees for James Dickie, his wife Joanna, and their children, filed their bill against Benjamin D. Harris, stating the following case. James Dickie, by deed dated the 14th of July, 1819, and duly recorded/ conveyed’in trust to the plaintiffs,'all his real and personal estate, and all debts owing to him, for the purpose of paying all the just debts of the said Dickie, and then of maintaining him and his wife, the educaúon and maintenance of his children, &c. Some time before the execution of this deed, Dickie became indebted to Claiborne, and gave •his note for $ 100, which was assigned to Benjamin D. Harris; on which the.said Harris instituted a suit and recovered judgment, in March, 1819. Execution issued, a delivery bond was taken and forfeited, and execution awarded on the delivery bond in May, 1S19. The said Benjamin D. Harris,-being then Deputy Sheriff of Nelson county, in order to remove the difficulty that would attend the levying an execution in his own favor, endorsed it to his father, Edward Harris, and then levied it on a female slave of the said Dickie, named Savory, whom he advertised, and purchased, at the day of sale, for about $120. The said slave was worth at least $ 400 or $ 500, and would have commanded that price, if she had been fairly disposed of.. The sale is charged to be illegal and void, and the plaintiffs say that they are entitled to the said slave, on payment of the execution, interest, &e. On the day of sale, there were no real bidders present, and Harris purchased the slave at the price aforesaid, having procured a by-stander to make a nominal bid, in order to give an appearance of fairness to the sale. The bill prays that the said sale may be set aside, upon the plaintiffs’ paying the sum due upon the execution, &e. and that an account might be directed of hire and interest, &c.</p> <p>Harris answered, denying that the plaintiffs had any right to sue for this alleged injury; that it is true, that he directed the execution to be endorsed for the benefit of Edward Harris; and this was a fair bona fide transaction, intended to secure to the said Edward Harris, the proceeds of the said execution, to re-pay money which he had advanced for the defendant, to enable him to farm the Shrievalty: that the slave in question was sold at a public place, to satisfy two executions: that she sold for about $ 157, being the amount of both executions, and the defendant became the purchaser: that the sale was fair; and the girl was sold for as much, (as the defendant believes) as she would have brought, if sold at any other place in the county, under an execution, considering the great scarcity of money, &c. at that time.</p> <p>Many depositions were taken, the material parts of which, are so fully stated in Judge Carr’s opinion, that it is unnecessary to insert them here.</p> <p>The Chancellor dismissed the bill of the plaintiffs, and thGy appealed to this Court.</p> <p>contended, that the endorsement of the execution, did not effect a transfer of the debt from B. Harris to E. Harris. '..It. was sti.ll the property of B. Harris; and he could not, as Sheriff, levy his own execution. Fraud is distinctly proved by Perrow, and many corroborating circumstances. A Sheriff cannot purchase at his own sale, at all, in England; and whether this rule is strictly followed in this country, or not, yet any circumstances to prove unfair^dealing, will certainly invalidate the sale.</p> <p>Dickie, is no party to the suit. It is brought by his trustees, and the sale took place before the deed of trust was executed. If so, Dickie alone had a right to sue, and he coqld not transfer that right to any person whatever. It is said, the property was sold for less than its value; but this was produced by the. state of the times, want of bidders, &c. The fraud is not sufficiently proved. Perrow is the only witness to that point, and he speaks doubtingly. Node of the circumstances-go to establish fraud. It is not proved, that there was only one bidder; and if it was, it is not necessary to the validity of a sale, that there should be more than one.</p>

<p>If a Sheriff sell under execution a slave mortgaged by a deed not recorded, and void against the creditor, and he sells and the purchaser buys the property, subject to the claim asserted in the deed; the purchaser takes the slave subject to the payment of the mortgage debt. But if, in such case, the Sheriff sells all the title that hé has a right to.sell in the property, under the execution, whether the deed be valid or void, the absolute title passes to the purchaser, discharged of any claim on the part of the mortgagee.</p> <p>An unrecorded deed is void as to creditors, whether they have notice or not § but it will be good against purchasers with notice, or who have not purchased for valuable consideration.</p> <p>A purchaser under a sale in behalf of a creditor, holds the rights and occupies the place of the creditor; and therefore he will not he affected hy notice of an unrecorded deed.</p>

<p>In the construction of Wills, ihe first ohjecl is, to gather the intention of the testator from the whole will; and this intention must prevail, unless it violate some rule of law.</p> <p>Where a testator leaves one half of his estate to his wife for life, and the use„of the other half to her until his child or children come of age or marry, with directions that his children shall be supported and educated out of the latter half; the wife had no interest under this will, which, upon her death before the children attained their age or married, was transmissible to her representative.</p>

Austin Brockenbrough, brought an action of detinue against Catherine Faulkner, administratrix of Thomas Faulkner deceased, in the Superior Court of King & Queen county, to recover a slave. The defendant pleaded non detinet, and issue was joined. The jury found a verdict for the plaintiff, and the defendant moved for a new trial, which was refused by the Court.

Austin Brockenbrough, brought an action of detinue against Catharine Faulkner, administratrix of Thomas Faulkner ■deceased, in .the Superior Court of King & Queen county, to recover a slave. The defendant pleaded non detinet, and issue was joined. The jury found a verdict for the plaintiff, and the defendant moved for a new trial, which was refused by the Court.

<p>In a Chancery cause, when a replication has been entered, and afterwards withdrawn, it is error for the Court to order an account, or to render a decree, until a new issue is made up. A deposition which had been taken, while the replication was standing, cannot be read, after it is withdrawn.</p> <p>When exceptions are filed to an answer, they must be disposed ofj before any further proceedings can take place in the cause.</p>

William Mann brought an action of debt in the Superior Court of Law for Caroline county, against Francis V. Sutton, maker, and William Sutton, John Sutton, jun. James T. Sutton, and Jlnderson Barrett, endorsers, of a negotiable note under seal, for $ 3000, drawn and endorsed by the defendants, as aforesaid. The defendants pleaded payment, and also demurred generally.

This action was originally brought in the Superior Court of King William county.*' It was an action of trespass on the ease, brought by Taliaferro against Dabney, as Sheriff and jailor of the county of King William, to recover the value of a negro man slave, the property of the plaintiff, who was confined in the jail of the said county, as a runaway; which slave was rendered entirely useless to his master, by neglect of duty, on the part of the defendant, as Sheriff and…

This was an appeal from the Richmond Chancery Court, where J. P. Martin, as administrator of S. Martin deceased, filed a petition of appeal from a decision of the Auditor of public accounts. The objects of the petition are fully stated in the following opinion. The Chancellor dismissed the appeal, and the petitioner appealed to this Court.

<p>The assignee of a bond, under our Statute, does not acquire the legal tide to the debt, but an equitable right, which, by virtue of the Statute, he may as® sert at law in bis own name $ and he has his election to sue, at law, in his own name, or in that of the original obligee, for his benefit.</p>

This Was an appeal from the Superior Court of Law for the county of Amherst. Hudson M. Garland brought an action of covenant against John Richeson, for the benefit of Samuel Garland.

<p>Appeal from the Staunton Chancery Court, where Wood filed a bill against Hays, stating that Hays and himself made a joint purchase of a tract of land, which was sold for the sum of 8 4000; and articles of agreement were entered into between them and the vendor, whereby the vendor bound himself to make a title for tbesaid land to thesaid Hays and Wood; and they bound themselves in return, to pay to the vendor the purchase money aforesaid, in the manner stipulated; that the plaintiff paid up his full moiety of the purchase money, and more; whereupon he expected a conveyance to himself and the said Hays, of the land aforesaid; that the said Hays had fraudulently procured a conveyance of the said land, to be made to himself alone. The bill, therefore, prayed, that an account might be taken, if necessary, to ascertain how much the plaintiff had over-paid his moiety of the purchase money; that the said Hays might be decreed to re-pay the surplus to the plaintiff, and to convey one moiety to him, &e.</p> <p>The answer of Hays states, that he made a verbal agreement for the land, for his own benefit alone; but afterwards, being unable to furnish all the means necessary for the purchase, he entered into a verbal agreement with the plaintiff, by which the plaintiff should aid the defendant in making his payments; and, if the defendant could sell the land in a short time, the plaintiff should have half of the profits; if not, the defendant, should pay him back his advances and keep the land; that accordingly, the written contract was executed, mentioned in the bill, and deposited in the hands of captain John Field, as a mere security ; that the plaintiff advanced to the defendant, towards the immediate instalment, a slave, &c. The defendant stated a variety of transactions, by which it would appear that the plaintiff was in his debt on other accounts, &c.</p> <p>The accounts between the parties were referred to a commissioner, who reported a balance due to the plaintiff of $492 15 cents, with interest, &c.</p> <p>Depositions were taken, and the Chancellor decreed, that the report of the commissioner should be affirmed; and, dismissing so much of the plaintiff’s bill as seeks a conveyance of the land therein mentioned, decreed that the defendant should pay to the plaintiff the sum reported by the commissioner, viz: $ 492 15 cents, with interest, &c.</p> <p>From this decree the defendant, Hays, appealed to this Court.</p>

<p>This was an appeal iron* the Superior Court of Amelia county.</p> <p>Berry brought an action of slander against Rison; and afterwards, the parties came into Court in person, and agreed to submit “ all matters in difference between them in this suit, to the final determination of Mien Jeler and John Baldwin, and such umpire as they shall choose, and that their award thereupon shall be made the judgment of the Court; and that said arbitrators and their umpire may proceed to make the award ex parte, in case either party shall fail to attend them, after receiving ten days notice of time and place appointed for that purpose.”</p> <p>The arbitrators returned their award, in these words: “ On hearing the evidence and arguments of counsel, on both .sides of the question, we, as referees, are of opinion, that the defendant Bison pay unto the plaintiff Berry, the sum of one thousand dollars.”</p> <p>(Signed,) Allen Jeter.</p> <p>John Baldwin.</p> <p>Henry Haskew.</p> <p>The defendant objected to the paper exhibited as an award, on the grounds that it does not conform to the order of reference made in this case, whereby the case was submitted to Allen Jeter and John Baldwin, and their umpire: that the award is made and signed by Allen Jeter, John Baldwin, and Henry Haskew, and does not shew on the face of it, that Henry Haskew was the umpire chosen by the referees; which objection the Court over-ruled, because it should be inferred from the award that Haskew was regularly chosen, and because it was proved by oral evidence, that he was so chosen; to which opinion, the defendant excepted; and judgment was rendered on the award.</p> <p>The defendant appealed.</p> <p>The case was submitted without argument.</p>

<p>This case was elaborately argued, May Term, 1825.</p>

This was an appeal from the Chancery Court of Staunton; where Rives filed his bill against Garland, Wing-field, Coleman and Lewis Nicholas, to set aside certain cbnveyances, on the ground of fraud. The whole history of these transactions is fully and minutely detailed in the first part of Judge Green’s opinion, which follows. It will, therefore, only be necessary to give a statement of the points made in argument, and the authorities cited in support of them.

<p>An action of debt will not lie against the surety of a Sheriff, on his official bond, to recover the penalty imposed by law, for failing to return an execution. Such penalty can only be recovered by motions and an action of debt will only He for the damage actually sustained by the Sheriff’s failure to return the execution.</p> <p>An averment of a breach of the condition of a bond, although it may not entitle the plaintiff to all he demands, will entitle him to recover what he is legally entitled to in consequence of the breach.</p> <p>In an action against the sureties of a Sheriff, for breach of duty, judgments obtained against the latter, are not evidence against the former.</p> <p>The admissions of the Sheriff, are not evidence against the sureties in such case.</p> <p>Where parol evidence is excluded, which might be proper when connected with a record, the bill of exceptions should state that such record was offered. Otherwise, it will be presumed that the parol evidence alone was offered.</p>

<p>This was an appeal from the Superior Court of Law for Prince George county.</p> <p>Perkinson brought an action against Gilliam, to recover compensation for his services as an overseer. A written agreement was entered into by the parties, containing the terms of the contract, signed by the parties, and attested by Charles A. Gilliam and Cannon Perkinson. The latter only made his mark. The defendant pleaded, and issue was joined.</p> <p>At the trial, the plaintiff introduced the said agreement; but the defendant objected to it, on the ground that Charles A. Gilliam, one of the subscribing witnesses, was a mulatto man; and that Cannon Perkinson, being dead, the mark attached to his name was not proved to be his. But the Court over-ruled the objection, and decided that proof of the hand-writing of the defendant Gilliam, would be sufficient; which was accordingly proved. To this opinion, the defendant filed a bill of exceptions.</p> <p>The jury found a verdict for the plaintiff, and the Court gave judgment accordingly. The defendant appealed.</p>

A Scire Facias issued from the County Court of Albemarle against Isaac Wood .and John Wood, praying execution on behalf of the Commonwealth, on a recognizance entered into by the defendants, conditioned for the personal appearance of Isaac Wood at a Court of Albemarle county, ordered to be holden for his examination on a charge of having stabbed a certain Charles Pemberton.

This was an appeal from the Richmond Chancery Court, where Robert C. Davis, and James M. Davis, infant children of Isaac Davis, by Joseph Butler, their next friend, filed their bill, setting forth the following case: that their father Isaac Davis, became the tenant of a house and lot in the City of Richmond, which was held by Samuel Payne, in right of firs wife, who. had been the widow of JLdam Craig, deceased, and who held the said property in right of dower: that the said…

<p>This was an appeal from a decree of the Richmond Chancery Court, affirming a decree of the County Court of Brunswick, in which Court Harrison filed a bill against Rhoda Goodrich, administratrix of John Goodrich deceased, and John H. Chapman. The following opinions present a full view of the case.</p>

This was an appeal from a decree of the-Richmond Chancery Court, affirming a decree of the County Court of Brunswick, in which Court Harrison filed a bill against Rhoda Goodrich, administratrix of John Goodrich deceased, and John H. Chapman. The following opinions present a full view of the case. ' Goodrich obtained a judgment against Harrison, and issued his execution.

This was an appeal from the Superior Court of Law for Halifax county, where Romulus M. Saunders and Henry M. Clay brought an action on the case, against William Bailey.

<p>An appeal from the Superior Court of Law for Essex county.</p> <p>The administrator of Joshua Ward brought an action of assumpsit for money had and received, against Jins tin Brockenbrough. The defendant pleaded non assumpsit; and issue joined. At the trial, the defendant tendered a demurrer to the plaintiff’s evidence, and moved the Court to compel the plaintiff to join therein; but the Court overruled the motion, and the defendant excepted. The evidence set forth in the demurrer is fully stated in the following opinion.</p>

<p>Perkins brought a suit in the name of the Governor, in the Superior Court of Petersburg, against StoJees, as surety for Hawks, a constable of the said town, in his official bond. The breach assigned is, that judgments were obtained from a magistrate of the said town, in favor of the said Perkins: that executions of Ca. Sa. issued from the Hustings Court of Petersburg, and the defendant arrested; but the said Hawks negligently and voluntarily permitted the prisoner to escape and go at large, whereby an action accrued to demand and have of the said Hawks the amount of the said executions, &c. and of Stokes as his surety, &c.</p> <p>The defendant pleaded conditions performed.</p> <p>The jury found for the plaintiff, subject to the opinion of the Court, on the following facts: that two writs of Ca. Sa. in favor of Perkins against a certain T. Richardson, were put into the hands of Hawks, as constable, and by him returned: [These, writs.issued from the office of the Court of Hustings, with, a return upon them by Hawks, <£ Executed and in custody, and was rescued from my custody by violence^ &c.”] that the said Hawks did not make fresh pursuit on the escape of the said Richardson, &c.</p> <p>The Court gave judgment for the plaintiff, and the defendant appealed.</p>

<p>An action brought in the name of A. B. Cashier of a certain Bank, is an action brought by A. B. individually, and the phrase Cashier, &c. is mere surplusage.</p> <p>A corporation can only sue in the name and style given to it by law.</p> <p>Joint and separate demands cannot he set-off against each other; nor can partnership and separate demands be set-off against each other.</p>

This was an appeal from the Superior Coqrt of Law for Montgomery county, where Nichols and others brought ejectment against Covey and others, for a messuage and five hundred acres of land.

This was an appeal from the Superior Court of Hanover, where the executors of Starke brought an action of detinue against Littlepage, to recover certain slaves. Issue was joined, on the plea of non detinet; and the jury found a verdict for the defendant.

Eppes obtained an injunction to a judgment on a forthcoming bond, obtained by Thurman, which injunction was after-wards dissolved; and Eppes was allowed by the Court of Chancery to appeal, upon giving security in the amount of 200 dollars. obtained a rule on Eppes, to shew cause why he should not give other security for the payment of the judgment injoined; and Leigh, on behalf of the appellant, having shewn cause, the question was argued, and the following opinion of the…

<p>■Where a judgment of a County Court is appealed from, and reversed and sent back for a new trial, by the Superior Court, from which judgment of reversal, there is an appeal to the Court of Appeals; and before bond and security are given on this appeal, the cause goes back to the County Court, is again reversed by the Superior Court, and a second appeal taken to the Court of Appeals ; on this last appeal, it is competent for this Court to enquire into the propriety of the first judgment.</p> <p>A joint judgment cannot be reversed as to one defendant, and affirmed as to the other.</p> <p>The principal obligor in a bond cannot be á witness for his surety jointly bound with him, because the latter would have recourse against the former for the whole recovery against him, including all subsequent costs expended by him. An interested witness, who has been examined on a former’trial without being released, may be rendered competent on a subsequent trial, by a release. The objection will only go to his credit.</p>

<p>The Act authorising an assessment for paving the streets of Norfolk, does not impose a lien upon the lots in the borough, for the payment of the assessment, but gives a personal remedy only, against the freeholders in possession, and not against reversioners and remainder-men.</p> <p>Where one man pays money for another at. his request, the latter cannot resist the re-payment of it on the ground that the original debt was not legally due.</p> <p>The assignee of a chose in action, has not a right, in all cases, to come into a Court of Equity, upon the mere ground that he cannot sue in his own name, at laws hut it must appear that he is prevented from suing at law in the name of the assignor, or that the assignor himself would have had a right, if he had not assigned, to go into a Court of Equity. Per Giieen, Judge.</p>

This was an appeal from the Richmond Chancery Court. The case was submitted without argument in this Court; and the following opinion gives a complete history of it.

This was an appeal from the Superior Court of Buckingham. Deane and Page brought an action of debt against Childers, on a note under seal, for $ 279 56, payable on demand. The defendant pleaded payment, and issue was joined. The defendant afterwards pleaded a.special plea, setting out the various considerations on which the note was given, the mode of calculating interest, and concluding with an averment, that the transaction was usurious.

The declaration is in the simple form of a declaration on a bond for the payment of money, without any breaches assigned. An office judgment was obtained for want of appearance, and a writ of enquiry executed; on which the jury found a verdict for the plaintiff. The Court rendered judgment against the defendants and their appearance bail. The record contains a bond, filed with the declaration, which is an appeal bond.

This was an appeal from the Richmond Chancery Court. Scott had obtained a judgment at law against Young, for 750 dollars, with interest and costs, as endorser of a negotiable note, executed by Dabney. A forth-coming bond was given, and forfeited, and judgment obtained on it. Young then filed a bill in Chancery to injoin this judgment, on the ground of usury.

<p>The master of an apprentice is bound to pay for medical attendance on the apprentice, from the very nature of the relation between master and apprentice¡ and the father of the apprentice is only bound, when the services have been rendered at his instance.</p> <p>The instruction of a Court will not be reversed, when it is right in principle, hut the reason assigned is erroneous.</p>

<p>If the proceedings under an execution are wholly void, no title passes by the sale to the purchaser, and the defendant may have redress in an action of detinue, and a Court of Equity has no jurisdiction.</p> <p>If the execution is valid so far as to bind the property, but the sale under it is void, on account of the interest or improper conduct of the sheriff, the Court, from which the execution issued, may correct the abuse of its own process, by quashing the execution, &c. and there is no ground for equity to interfere,</p> <p>A fair purchaser under a sheriff’s sale, without knowledge of any improper conduct on the part of the officer, acquires a valid title to the properly purchased, and the remedy of the party injured is, by action at law, for damages, against the sheriff. The same remedy applies, where a sheriff has improperly refused a forthcoming bond, when he ought to have received it.</p>

<p>Executions* — Proceedings Thereunder Void — Effect.—If the proceedings under an execution are wholly void, no title passes by the sale to the purchaser, and the defendant may have redress in an action of detinue, and a Court of Equity has no jurisdiction.</p> <p>Same — Sale Thereunder Void — Misconduct of Sheriff— Equity Jurisdiction. — If the execution is valid so far as to bind the property, but the sale under it is void, on account of the interest or improper conduct of the sheriff, the Court, from which the execution issued, may correct the abuse of its own process, by quashing the execution, &c. and there is no ground for equity to interfere.</p> <p>Same* — Improper Conduct of Sheriff — Effect on Purchaser without Notice. — A fair purchaser under a sheriff’s sale, without knowledge of any improper conduct on the part of the officer, acquires a valid title to the property purchased, and the remedy of the party injured is, by action at law, for damages, against the sheriff. The same remedy applies where a sheriff has improperly refused a forthcoming hond, when he ought to have received it.</p>

<p>The administrator de bonis non of Thomas Pierce, de» ceased, presented to the Executive a cfemand of his intestate, for the liquidation and payment of a claim against the State, for the-passage of certain companies of militia, during the late war, over a tp] ¡-bridge belonging to the intestate. The amount demanded was $317 45 cents, being the sum due at the legal rate of tolls. The Executive referred these accounts to the military accountant, who rejected all but a balance of $79 52 cents, for which the Governor gave an order to the Auditor of public accounts to issue a warrant on the Treasurer, and charge it to the United States. The claimant, refusing to accede to the abatement which had been made, demanded of the Auditor a warrant for the whole amount; which was refused, on the ground, that the Auditor had no discretion to depart from the direction of the Executive, and the law not having made any special provision for the payment of such claims.</p> <p>The claimant appealed to the Superior Court of Henrico, where the decision of the Auditor was reversed, and the whole claim allowed; from which decision, an appeal was taken by the Commonwealth, with an agreement that the facts above stated, in substance, should be considered as a case agreed.</p> <p>for the appellant, contended, that neither the Auditor nor the Superior Court, had any jurisdiction to control the decision of the Executive in this-case: that the subject of this claim was submitted by the acts of 1814, to the discretion of the Executive, and the military accountant was created only to obey their directions: that this case did not come under the general law authorising appeals from the Auditor. He referred to 1 Phill. Eoid. 281, and Moody v. Thurston, 1 Sir a. 481, to shew that in a case like the present, the decision of a board, created by statute,is conclusive.</p> <p>replied, that the acts of 1814, did not apply to this case: that the bridge was authorised by law, and the tolls then fixed were a contract with Pierce, and the Legislature had no power to alter those terms: that, to contend that the Executive had the power of deciding finally upon this claim, would be to give them judicial power, in opposition to the express provisions of the constitution.</p>

This was an appeal from the Richmond Chancery Court, where Bruñe (suing for the benefit of the house of Van Kapjf fy Bruñe) filed his bill against Shelton 8p Co. and Enders and Ciarle,-their trustees.

This was an appeal from the Superior Court of Campbell county. An action of debt was brought in the County Court of Campbell, by Cox against Franklin and three others, on a paper under seal, purporting to be a penal bill, and to be executed by the defendants. The defendants pleaded payment, and issue was joined. At a subsequent term, the defendant Franklin, offered an additional plea, which was a general plea of non est factum.

<p>Clark filed a bill in the Chancery Court of Lynchburg, against Long and Crews, stating, that the complainant, to save himself from heavy losses, from debts due to him from Penn, and from endorsements for the said Penn, took a conveyance of an estate, called the Grove, containing 1000 acres: that the complainant has paid the said Long,. as executor of Penn, for the said land, leaving a large unsatisfied balance due to him: that at the time of the conveyance, Long, as executor of Brydie, had a claim for $ 2000, according to his own mode of settlement, but, the complainant was assured, by the said Penn, that if the account was fairly settled, not one farthing would be due; and he also remarked, that this claim was, originally, an usurious one, and that some sort of lien had been given on the land; but no further .information was given on this point. The complainant expressly charged usury in the transaction between Penn and Brydie: that he has paid the said Long % 1341 33 cents, on account of the said incumbrance, but declined paying more, until he could be furnished with a statement óf the amount actually and bona fide due: that the land has been advertised for sale, under the deed of trust executed to Crews, for the benefit of the said Long, to secure the debt aforesaid: that the said deed was not recorded in proper time, &c. He, therefore, prayed that the sale might be injoined, &e.</p> <p>Long denied the usury, and entered into a detail of circumstances, to prove the legality of the contract with Penn, and of the conveyance of the land, to secure the said debt: that it is true.that the said deed was not recorded in proper time; but, he submits it to the Court, whether it is not good against the complainant from the time it was recorded: that if he be mistaken in this, then, he conceives that the complainant admits that Penn gave him notice of the trust deed and bond, and he must, therefore, be considered as a purchaser with notice, &c. ,</p> <p>The accounts were referred to a Commissioner, a report made, exceptions filed, and evidence taken.</p> <p>The Chancellor decreed, that the injunction should be dissolved, as to a certain sum, and made perpetual, as to the residue. From this decree, the plaintiff appealed.</p>

<p>This was an appeal from the Chancery Court of Lynch-burg, where Coleman filed his bill against Henry Lyne, which was afterwards revived against bis two executors. The subpoena to revive was served on both executors; but only one of them answered, and the suit was ordered to stand revived against both. All the circumstances are so fully stated in the following opinion, and the arguments of counsel so fully considered, that no other report is necessary.</p>

<p>Chancery Practice — Answer—Failure to Notice Allegations of Bill — Effect.*—Where the answer of the defendant in Chancery omits to notice some of the allegations of the bill, and replies to others, the allegations not noticed are not considered as admitted; but the plaintiff must except to the answer as insufficient.</p> <p>Same — Same—Insufficiency.†—An answer cannot be excepted to as insufiicienc after replication.</p> <p>Same — Settlement of Stale Accounts.‡ — Equity will not, without strong reasons, rip up old transactions, or settle stale accounts.</p> <p>Same~BiII Pro Confesso — Effect.§—Qusere whether on a bill taken pro confesso, the plaintiff can have a decree for his claims, without documents or other evidence to support his bill?</p>

Morris filed a caveat in the County Court of Henry, against Deshazo, to prevent the issuing of a grant to the latter. A jury was impannelled, who rendered a verdict for the defendant; and the Court gave judgment accordingly. An appeal was granted to the plaintiff, on condition that he should give bond and security “in the clerk's office, within thirty days.” The Superior Court affirmed the said judgment; and Morris obtained a supersedeas from a Judge of this Court.

<p>Morris filed a caveat in the County Court of Henry, against Deshazo, to prevent the issuing of a grant to the latter. A jury was impanelled, who rendered a verdict for the defendant; and the Court gave judgment accordingly. An appeal was granted to the plaintiff, on condition that he should give bond and security “in the clerk’s</p> <p>office, within thirty days.” The Superior Court affirmed the said judgment; and Morris obtained a supersedeas from a Judge of this Court.</p> <p>As the argument turned on the merits, and the cause was decided on the regularity of the appeal, nothing need be said as to the points made in the argument.</p>

Scott 8? Saunders, surviving partners of the late firm of Lyle, Scott 8? Saunders, brought assumpsit against M'Rae, for the amount of certain goods taken up by the defendant at the store of the plaintiffs. The defendant, pleaded non assumpsit, and the jury rendered a verdict for the plaintiffs. Judgment was given accordingly.

Scott & Saunders, surviving partners of the late firm of Lyle, Scott & Saunders,, brought assumpsit against M’Rae, for the amount of certain goods taken up by the defendant at tne store of the plaintiffs.. The defendant *pleaded non assumpsit, and the jury rendered a verdict for the plaintiffs. Judgment was given accordingly.

Sam, a man of colour, held in slavery by Blakemore, petitioned the Superior Court for leave to sue for his freedom. This petition was accompanied by several affidavits, and a statement of the case by the counsel, who had been-appointed by the Court to conduct the cause on behalf of the petitioner. The Court refused to grant the prayer of the petition, because the facts stated by the counsel were not sustained by the evidence. The petitioner appealed.

<p>The case was this. Gibson filed a complaint of unlawful detainer, under the act of Assembly of. February 12, 1814, against Mien, for, that the defendant “unlawfully and against his consent, withholds from him the possession of two lots or parcels of ground lying and being in the city-aforesaid, (the city of Richmond) on E street, commonly eallcd the Brick-row, just below the United States Bank, one of which lots binds upon the said E street, and the other lies in the rear thereof, with all the houses thereon, and the appendages and appurtenances thereof, whereof he prays restitution of the possession." A justice issued his warrant to the sergeant of the city of Richmond, reciting the complaint in the same terms, atad requiring him to summon the defendant Mien, and at least eighteen freeholders as jurors, to try the complaint aforesaid. The warrant also required the sergeant to give notice to at least two other justices of the peace for the said city, and to request their attendance, &c.</p> <p>The jury so summoned were sworn “ to try whether the defendant, against the consent of the plaintiff, holds possession of the tenements mentioned in the complaint-filed in this cause; whether the said defendant hath so held possession thereof against the consent of the plaintiff, for three years next before the exhibition of the said complaint; and whether the plaintiff hath the right of possession in the tenements aforesaid ?” The jury returned a verdict “that the defendant did, at the time of the exhibition of the complaint filed in this cause, hold possession of the tenements therein mentioned, against the consent of the plaintiff: that the said defendant hath not so held possession thereof, against the consent of the plaintiff, for three years next before the exhibition of said complaint;'and that the plaintiff had the right of possession in the tenements aforesaid.”</p> <p>The Court gave judgment that the plaintiff recover against the defendant the possession of the tenements aforesaid, &e.</p> <p>On the trial, the plaintiff offered in evidence in support of his action, a deed of mortgage executed by the defendant to the plaintiff and John Lesslie, on the 20th of April,</p> <p>1816, reciting, that Lesslie had endorsed certain notes for Mien, which had come into the possession of Gibson, and Mien being desirous of securing the said Lesslie harmless from the effects of his said endorsements, conveyed to Gibson and Lesslie the lots in question with other property; but, if Mien should discharge the debts aforesaid, then the said Gibson and Lesslie should re-convey the said mortgaged premises.</p> <p>To this evidence the defendant objected, as not being proper to- sustain the right of possession of the plaintiff alone to the premises in the writ mentioned, as the said deed shewed a right also in another; but this objection was over-ruled by the Court, and the deed permitted to go to the jury as proper evidence, to have such influence with the jury as it might lawfully have. The defendant excepted.</p> <p>The Court also gave the following opinions: 1. That it is competent to a mortgagee to eject a mortgagor (as in the present case) by this mode of proceeding, under the act of Assembly. 2. That to enable the plaintiff in this cause to recover against the defendant the premises in question, it is not necessary to prove that the said plaintiff ever did have the possession of the premises which he now claims. S. That the pendency of a suit between the same parties and others, which is shewn at this time to exist in the Superior Court of Chancery, the object of which suit is to foreclose the said mortgage, is no bar or impediment to the complainant’s proceeding in this form of action; although another suit is depending in the said Court of Chancery, between different parties, by which the property in question may be recovered; and in consequence of which, the proceedings in the first mentioned suit have been suspended.</p> <p>To all these opinions, the defendant excepted.</p> <p>Other exceptions were taken which are not important, as they are not noticed by the Court.</p> <p>A writ of supersedeas was granted by the Superior Court, and the judgment was affirmed.</p> <p>The cause was brought by supersedeas to this Court.</p> <p>It was contended for the appellant, First, That the proceeding in this case being in derogation of the common law, ought to be strictly followed; which was not done in these several particulars: 1. The complaint does not state the contents of the land in dispute. 2. The jury were sworn to try whether the plaintiff “ hath” the right of possession referring to the time of trial, but they find that the plaintiff “ had” the right of possession; referring to an uncertain antecedent period.</p> <p>Secondly. The. justices erred in their decisions mentioned in the bills of exceptions. 1. The right under the mortgage was a joint right and could not be severed. 2. The act of Assembly was intended to redress cases of a violent deprivation of possession, not to the ease of a mortgagee, after forfeiture. 3. The pendency of the suits in Chancery rendered the procedure in this summary remedy, improper.</p>

<p>In general, a contract will not be enforced by a Court of Equity, if the party asking the execution of it has been in default, and the other party will there, by suffer a serious loss, if compelled to carry the contract into effect.</p> <p>But, if the purchaser knew, when he made his contract, that there was a defect in the title, and that it would take a considerable time to remove it; or acquires this knowledge after his purchase, and acquiesces in the delay, or proceeds, with knowledge of the defect, in the execution of the contract 5 he has no ground of complaint.</p>

<p>The vendor of real estate Is not responsible for any defects of title, unless lie has bound himself by some covenant or warranty to protect the vendee, or unless he has been guilty of some fraud or concealment.</p> <p>When the Commonwealth sells the lands of a public debtor, and the purchaser is afterwards evicted by title paramount, the purchaser has no redress against the Commonwealth ; as the law only authorises a sale of all the estate and interest of the debtor. The rule caveat emptor applies in such cases.</p>

<p>The misjoinder of an issue is not fatal after a verdict, and it being stated in the record Chut issue ivas joined.</p> <p>The saving in the 4th section of the Act of limitations, (1 Rev. Code, 488,) ap« plies to the 7th suction of the same Act; by which, an action between merchant and merchant is neither barred by one year, nor five years.</p> <p>Under the 86th section of the Act concerning proceedings in civil suits, &e. (1 Rev. Code, 510,) an* account filed in. an action of indebitatus assumpsit, which gives notice of the character of a claim is sufficient, although it may be made up of various items of which no notice is given.</p>

<p>This was an appeal from the Chancery Court of Fredericksburg, where William Wright and others filed their bill against Richard Wright and others, praying partition of a tract of land. The facts are set forth at large in the following opinion:</p>

<p>It is a general rule, liable to very few exceptions, that no tribunal can take from a plaintiff a legal advantage which he has gained against bail, if such advaa« tagc happens, without any participation or agency of the plaintiff.</p> <p>Special bail cannot be entered at the clerk’s table, unless it is directed by the Court, or assented to by the plaintiff’s counsel; even where the appearance bail is offered as special bail..</p>

<p>Bail — Advantage Gained by Plaintiff against. — It Is a general rule, liable to very few exceptions, that no tribunal can take from a plaintiff a legal advantage which he has gained against bail, if such advantage happens, without any participation or agency of the plaintiff.</p> <p>Special Bail — Entry at Clerk's Table — When Allowable. —Special bail cannot be entered at the clerk’s table, unless it is directed by the Court, or assented to by the plaintiff’s counsel; even where the appearance bail is offered as special bail.</p>

<p>It is a general principle, that freight is not due until it is earned by a delivery oí the cargo, unless the delivery is prevented by the default of the shipper or his agents.</p> <p>If it is impossible to deliver the cargo, from causes not arising from the default of either party, the shipper will be excused from paying freight. By two Judges.</p> <p>A special verdict must contain facts, and not evidence of facts.</p> <p>In what cases n. protest is necessary.</p> <p>Difference between a new trial and a venire de novo. By Cahii, Judge.</p>

<p>Freight — When Due.† — It is a general principle, that freight is not due until it is earned by a delivery of the cargo, unless the delivery is prevented by the defaultof the shipper or his agents.</p> <p>Same — When Shipper Excuses from Paying. — If it is ■impossi'be to deliver the cargo, from causes not arising from the default of either party, the shipper vrill he excused from paying freight. By two Judges.</p> <p>Special Verdict. — A special verdict must contain facts, and not evidence of facts.</p> <p>Protest. — In what cases a protest is necessary.</p> <p>New Trial:!: — Venire De Novo.‡ —Difference between a new trial and a venire de novo. By Carr, Judge.</p>

<p>Vanlew filed a bill in the Richmond Chancery Court, stating the following case: that a certain John P. Shields, executed his note in favor of Samuel G. Adams and the complainant, then merchants and partners, trading under the firm of Adams 8? Vanlew, for the sum of #106 87: that after the said firm was dissolved, the said note was transferred to Bohannan in blank, in the name of Adams £>' Vanlew, by the said Adams: that it was understood and agreed between Bohannan, Adams and Vanleio, that the said note was taken by Bohannan for ns much as it was worth, and that he was not to consider Adams and Vanlew responsible to him, iftfie money could not be recovered of Shields: that suit was instituted by Bohannan, as assignee of Adams 8,' Vanlew, against Shields, and judgment obtained; upon which judgment a Ca. Sa. issued, and the defendant took the oath of insolvency: that the said note was passed to Greenhow, and came to the hands of Biddep, without any endorsement by Greenhow: that suit was brought on the said note against the complainant, as surviving partner of the firm of Adams §• Vanlew, upon the endorsement by Bohannan, for the benefit of the said Biddep: that no defence was made at ■ law, in consequence of the absence of a witness who had left Richmond, without his residence being known: that when the cause was tried, neither the complainant nor his counsel was present, to move for a continuance, on account of the absence of the said witness. He therefore prayed for an injunction to the said judgment.</p> <p>The injunction was awarded.</p> <p>The answer of Bohannan and Diddep admits, that the note in question was assigned after the dissolution of the partnership of Adams fy Vanlew; the said Adams then acting with full authority, as the agent of his co-partner, Vanlew: that it is not true, that it was expressly agreed and understood between Bohannan and Adams, that the former was to take the note without any liability on the part'of"Vanlew, if Shields should prove unable to pay it: that the note was assigned to Bohannan, by Adams, in part payment of a debt due by him to Bohannan, who did not consider Vanlew as bound for the payment, at the time of the assignment: that before the note was transferred to Diddep, he applied to Vanlew, who did not then deny his liability; and, although he afterwards refused to pay it, he never alleged that the note was assigned without recourse to him. As to the surprise alleged, in the trial at law, the defendants call for proof of the allegation, &c.</p> <p>The injunction was dissolved, and an appeal was allowed by a Judge of this Court.</p> <p>The counsel for the appellant made four objections to the decree:</p> <p>1. That the note was endorsed to Bohannan by Adams, as agent of the firm of Adams 8p Vanlew, subsequent to the dissolution of the partnership, and for the payment of Adams’ individual debt, which was known to the said Bohannan, at the time of the transfer of the said note.</p> <p>2. That the note was endorsed long after its maturity, and consequently, subject, in the hands of the subsequent holders, to all the equity of the complainant against the said Bohannan.</p> <p>3. That if endorsed before its maturity, Vanlew was exonerated, by reason of the failure to place the note, (which was a negotiable note,) in bank, and to protest the same..</p> <p>4. That the judgment at law, was obtained by surprise against the complainant.</p> <p>For the appellees, it was contended, that a judgment having been obtained at law, and no sufficient excuse being offered why the defence was not made there, (the matter of defence being purely legal,) a Court of Equity cannot now grant relief, according to established principas.</p>

<p>This was an appeal from the Richmond Chancery Court. The case was submitted in this Court without argument; and the following opinion gives a complete history of it.</p>

<p>A limitation over after an indefinite failure of issue in the first taker, is too remote and void.</p> <p>Where an estate is given by will to A. and his heirs, and if he should die without issue living at his death, then so much of the estate as may remain undisposed of by A. to B.; the limitation over is void for uncertainty, and because the power to dispose of the property, gives A. an absolute estate.</p>

<p>A Court of Equity will never injoin a judgment at law, on the ground that it would have been reversible if the proper steps had been taken in the Court of Law, but by mistake, a confession of judgment had been entered.</p> <p>It is no fraud in the holder of a bill of exchange, to make an arrangement with one of the endorsers, by which it is agreed that the whole bnrthen’shall be thrown upon the other endorsers, and that the endorser first mentioned, is to be liable only in case they should be unable to pay.</p> <p>Where a bill of exchange is presented to the drawee, who refuses to accept or to pay, notice need not be given to the endorser, if the bill was drawn and endorsed for the accommodation of the drawer, with the knowledge of the. endorser, and there was no expectation that the bill would*b,e paid by the drawee.</p> <p>One endorser has no right to contribution against the other endorsers, where the several endorsements were made for the accommodation of the drawer, unless there is a stipulation to that effect.</p>

This was an appeal from the Winchester Chancery Court, from an order dissolving an injunction. The appellant had obtained an injunction, which was afterwards dissolved, and appealed, giving an appeal bond in the penalty of $ 6000.

This is the same case reported in Gilm. Hep. 37. The questions now made arose out of the interpretation of the decree rendered in that case, by the Chancellor. The particulars of that decree, and the relation of the several parties, may be found by referring to that report. They are not necessary here.

These were two appeals from the Superior Court of Bed-ford county. The two cases are essentially the same in principle; and the following opinion gives a full view of the questions arising out of them, and of the topics of argument.

<p>This was an appeal from the Richmond Chancery Court. The suit was brought by William Fenwick, surviving partner of Heathcote and Fenwick, against the representatives of Edward Rice, Joseph Strother and Francis Nalle. A complete view is given of the case in the opinion which follows, and of the points made in argument.</p>

<p>Where a female slave is emancipated, with a reservation that her future increase shall be slaves, such reservation is void, and the woman and her increase are absolutely free.</p>

<p>Appeal from the Superior Court of Fairfax county.</p> <p>Kitty, a woman of color, brought an action to recover her freedom, against Fitzhugh. The jury found a verdict for the defendant, and the Court gave judgment accordingly.</p> <p>At the trial, the counsel for the plaintiff gave in evidence a record of proceedings in a suit instituted in Prince George’s county, Maryland, by Catharine Norris against Patríele Sim, in July, 1814, (which said Catharine is the appellant in this' cause,] in which she claimed her freedom, in consequence of having been imported into the State of Maryland contrary to the laws of that State, by the said Patrick Sim. In that suit, Patrick Sim, (as appears by that record,) disclaimed any right or title to the said Catharine ; and judgment was rendered by the Court, that the petitioner should be free.</p> <p>The counsel for • the plaintiff also offered in evidence Patrick Sim’s will, made in 1817, in which he declared that the children of Katy Norris were free, in consequence of their mother having been imported into Maryland, in the year 1804, without performing the acts required to be done by the law of that State; on which ground she had recovered her freedom by a judicial proceeding.</p> <p>Depositions were also offered, which stated the following facts and circumstances: That Patrick Sim had held Kitty in possession for thirty years, as a slave, until the recovery of her freedom in Maryland; after which she continued to reside with Sim, until his death in 1815 or 1816, (one witness states that he died in 1817,) and has been going at large' ever since, exercising the rights of freedom, until she was seized upon by Fitzhugh: that Patrick Sim went from Maryland to Loudoun county in Virginia, in 1801, carrying with him t.he woman Kitty: that he moved back from Loudoun to the City of Washington about the year 1803; and in 1808 or 1809, to Prince George’s county, Maryland, and continued to reside there until his death: that Kitty went with Patrick Sim to Loudoun county, returned with him to Washington, and was in his possession in Prince George’s county, Maryland: that P. Sim never acquired a settlement in Virginia, and never kept house there: that Mrs. Sim resided, at the time of the death of Patrick Sim, in Georgetown, in the District of Columbia, and continued to reside there until she removed to A lexandria, where she has resided to the present time: that Kitty and her children removed to the City of Washington soon after the death of Patrick Sim, where she continued to reside until she was removed by Fitzhugh to Virginia: that a separation took place between Patrick Sim and his wife some time in the year 1802, and they were divorced in the year 1S05 or 1806, by an Act of the Legislature of Maiwlaud; and after this event they never did again live together.</p> <p>A copy of an Act of Assembly of Maryland (but not proved) was also introduced in evidence, by which actions of detinue were required to be brought within three years from the time of such actions accruing.</p> <p>The next piece of evidence was a mortgage from Patrick Sim to Thomas Contee, by which Kitty was conveyed, with other negroes, to secure a debt due to the said Contee. This deed was dated on the 9th day of April, 1794. The property so conveyed, was advertised to be sold; and Richard Henderson became the purchaser of Kitty, and received a conveyance from Sim and Contee. The conveyance expresses, that the said Richard Henderson desires the said Kitty with her increase to go to the present use or occupation of his daughter Ariana, (Mrs. Sim.) By a codicil to the will of the said Henderson, he gives Kitty and her increase to his daughter (Mrs. Sim) when she shall be capable in law to hold such property in her own right, and failing such capacity, he gives them to •his grand-son William Sim, &c.</p> <p>A certificate of the discharge of Patrick Sim, as an insolvent debtor, dated March 17, 1S01, was also given in evidence: that Fitzhugh employed constables and others to take up Katy and her children, who were found in Washington, and carried to Fairfax court-house, and there lodged in jail for safe-keeping. There was other evidence which is not material to this report.</p> <p>The plaintiff’s counsel asked the instruction of the Court to the jury, that if from the evidence the jury should believe that the plaintiff was taken possession of by Patrick Sim, in the year 1802, and held by him in the District of Columbia, until his removal into Prince George’s county, Maryland, in 1809: that he took her with him in 1809 into Prince George’s county, and held her there until his death in 1819: that in 1815, the plaintiff recovered her freedom by judgment of the Court of Prince George’s county against Patrick Sim: that in May, 1819, or previously thereto, he removed to the City of Washington, and from that time until she was seized on by the defendant in October, 1825, resided and acted publicly and openly as a free woman, claiming her freedom under the recovery aforesaid; and that from the year 1802 until 1820, Mrs. Sim resided in Georgetown, and from 1820 until the seizure aforesaid, resided in Alexandria: that in the year 1805, Mrs. Sim was legally divorced from her husband, and from that time, was capable in law of holding property in her own right, under the will of her father, Richard Henderson; then that the plaintiff was entitled to her freedom in this suit; which opinion the Court refused to give, and the plaintiff’s counsel excepted.</p> <p>The plaintiff’s counsel also moved the Court to instruct the jury, that if from the evidence so as aforesaid given, the jury should believe the matters stated above to be true, and should moreover believe that the said Patrick Sim, had seized and held the plaintiff as aforesaid, from the year 1802 until her recovery of her freedom by the judgment aforesaid under a claim of title to her as his slave, then, that the plaintiff was entitled to recover in this suit; which opinion the Court refused to give, unless with this qualification, that the jury should be satisfied that the possession of the said Patrick Sim did not originate in fraud or violence, and that the said Sim did realty and hona fide claim property in the said slave, when he so forcibly possessed himself of her. To this opinion the plaintiff’s counsel excepted.</p> <p>The plaintiff appealed.</p>

<p>An. appeal taken in the name of a party without his knowledge or consent, may be dismissed as to him, on motion.</p>

The pleadings are in the usual form; and the jury found a verdict for the plaintiff. Judgment was rendered accordingly. At the trial, the plaintiff filed two bills of exceptions. 1.

<p>Appeal from the Superior Court of Chesterfield county, where James Baugh, a man of color, brought an action against Thomas Gregory, to recover his freedom. The pleadings are in the usual form; and the jury found a verdict for the plaintiff. Judgment was rendered accordingly.</p> <p>At the trial, the plaintiff filed two bills of exceptions.</p> <p>*1. The first states, that upon the trial, the plaintiff proved by two witnesses that he is the son of Biddy, who was the daughter of Sibyl; that Sibyl was a copper-coloured woman, with long, straight, black hair, with the general appearance of an Indian, except that she was too dark to be of the whole blood: that she was called Indian Sibyl, but her color, and that only, shewed she had negro blood; that he also introduced the deposition of Benjamin Smith, aged 70, who proved that when he was a boy, between 7 and 10 years old, he knew a yellow woman in the family of Peter Ashbrooke, who was called Ashbrooke’s old Sibyl, and Indian Sibyl; that she had every appearance of an Indian, and had several children; one by the name of Biddy, and one by the name of Jenny; that Sibyl had long, straight, black hair; and he was always under the impression that she was of Indian descent. The plaintiff also offered to prove, that in the life-time of Sibyl, about the year 1770, it was currently said and believed in the neighborhood, that she was entitled to her freedom. To the introduction of this evidence the defendant’s counsel objected. But, the Court was of opinion, that though such evidence was not legal evidence to prove the affirmative position that Sibyl was free, it was legal and proper evidence, as a circumstance with others, to aid the jury in deciding whether the African mixture in Sibyl came from the father or mother, and for that purpose only, and to have such weight as the jury deemed it entitled to. The defendant excepted to this opinion.</p> <p>2. The second bill of exceptions states, that after the cause had been argued before the jury, on all the circumstances of the case, the defendant by counsel stated, that the evidence proved the plaintiff to be the .son of Biddy, who was the daughter of Sibyl, who was half Indian and half negro, and moved the Court to instruct the jury, that if they so found the facts, that in this action it was needful for the plaintiff to prove, that Sibyl was descended, in the maternal line, from an Indian woman. But the Court *said, that it is true that the jury must find that fact, but that the Court would not instruct the jury, that further evidence to prove it, was of legal necessity, to be given by the plaintiff: that it was a question to be decided on probabilities and circumstances; among which, it was lawful for the jury to consider facts connected with the history of the country, as if formally proved to them; and if, at the time spoken of, it was much more common for female Indians to be captured and domesticated among us, than males, that circumstance might be regarded by them as of some weight, and in the case before them, they should attentively consider all the circumstances, and find for the plaintiff, if they believed that Sibyl’s mother was an Indian woman ; otherwise, they should find for the defendant. To this opinion, the defendant excepted.</p> <p>The defendant appealed.</p>

<p>A man removing into this State with his slave, takes the oath required by the lav/ of 1792; hut it is doubtful, upon the evidence, whether the oath was taken -within sixty days after his removal. After a great lapse of time, it will be presumed that what had been done, was done rightly.</p> <p>But, if it does not appear, by evidence or otherwise, that the oath was taken within sixty days after the removal of the master, the slave will be entitled, to his freedom, when he has remained in the State twelve months.</p>

Elizabeth Almond, by Cox, her next friend, filed a bill against David Almond, her husband. The whole nature of the subject is fully unfolded in the following opinion. The case was submitted without argument.