Volume 5 — Munford's Virginia Reports

IN an action of Assumpsit in the Superior Court of Spottsyl vania county, James Stevenson complained of William Jones 9 in custody, of a plea, &c. “ for that, whereas on the *s day of , In the year 1803, at Fredericksburg, in Spottsylvania aforesaid, and within the jurisdiction, , 1 “ &c. the said James bargained with the said William for one “ pipe of Madeira Wine, at the price of three hundred and “ fifty dollars, equal to 105i, which said price the said William “ then and…

THE appellant Bream brought ejectment in the Superior Court of Mason county, against the appellees, for a tract of land lying in that county, and the parties being at issue went tn trial.

<p>FORD brought an action, in the District Court 'of Petersburg, against Ligon, for criminal conversation with Ford’s wife. Plea, “ not guilty.” On the division of the court, the cause was sent to the Superior Court of Amelia ; where it was tried, and a verdict rendered for the plaintiff for one hundred dollars damages ; which verdict the court set aside, and granted a new trial on the ground that the case was an aggravated one, without a single circumstance of palliation, and the damages extremely inadequate. The venue was afterwards changed, and the cause transferred to the Superior Court of Nottoway ; and there, by rule of court, referred to three arbitrators, or any two of them, whose award was to be the judgment of the court. Two of the arbitrators met, and, in the presence of the parties, made an award in the plantiff’s favour for one thousand dollars. It does not appear, that the other , i arbitrator had notice of the time and place of arbitration, or that any objection was made on that ground, at the time of arbitration, or in the court below. The defendant filed several exceptions to the award, of which the two material were the 3d, That at the time of the making of the award, the defendant offered evidence to the arbitrators, to prove, that the testimony of the two principal witnesses ought not to be credited, from their general character, and the variance of their testimony from that they had before given in the same cause ; and the arbitrators refused to hear such discrediting testimony; and the 4th, That they prohibited the defendant from examin. ing any evidence, as to the character and general deportment Of the plaintiff’s wife, before her alleged seduction by the defendant. And the defendant offered to prove to the court, that the facts stated in the exceptions, were true. But the court refused to hear such proof; overruled the exceptions, and gave judgment for the plaintiff, according to the award : from which the defendant appealed to this court.</p> <p>The court of Amelia ought not to have granted a new trial, on the mere ground of inadequate damages, however extreme the case. It has long been settled, that, in cases of personal tort, a new trial cannot be granted on the ground of smallness of damages ; (a) and there is not a single precedent in the books to the contrary. In the common cases of personal tort, (assault and battery, and the like,) it has been often asked, if any good reason can be assigned, why the courts may, as they do daily, grant new trials for excess of damages, and not, é converso, for the smallness of damages ? The one case requires the interposition of the courts less strongly and frequently than the other. Where the damages are too small, the parties are left nearly in their former condition ; where excessive, there is a sudden, and, in one sense, a violent, chango of property. Then, it much more rarely happens, that he, that sustains a real outrage, fails to excite the sympathy of juries, than that he that has perpetrated one, tails to rouse their indigtion; courts of justice are hourly employed in restraining the vehemence of men’s feelings; in correcting their moderation, never. And, of all kinds of actions, those of personal tort, are most often frivolous, vexatious, and spiteful. As to this action for criminal conversation, it has been solemnly ruled, that a new trial cannot be granted, even for enormously excessive damages; as where the jury found 5000Z. when the court would have been satisfied with nominal damages. Welford v. Bukeley, aud Duberly v. Gunning, (a) In the last cited case, Lord Kenyon plainly regards a new trial, for inadequate damages, as utterly out of the question. And the utmost point to which any court has ever gone, in crim. con. cases, was to say, that it would grant a new trial for excessive damages, if it should appear, that the jury acted under the influence of undue motives, or some gross error or misconception of the subject.(b) The import of that decision (as I understand it) is, that a new trial may be granted, not for excessive damages simply, but for excessive damages proceeding from misconduct of the jury. Possibly, it may be held, that the subsequent arbitration superseded this question ; as all matters in difference in the cause were referred, and this was one matter of difference. But, it is plain it never entered into the arbitrators’ heads, to deter* mine this question on the law of new trials. And if it shall be intended, that they did decide the question, and they decided it erroneously; then the award Í3 chargeable with error in law, and is therefore bad; which brings us back to the point, was the new trial properly awarded or not ?</p> <p>However, if this court have decided, that an arbitration operates like a release of all previous errors in the proceedings^ I must yield this first point, and rely on the objections that lie against the award itself. And first, the award is bad for want of mutuality, no release being awarded for the defendanf.(c) But I mention this point with diffidence ; as it seems to have been disregarded both by bar and bench, in some cases in this court, where it might have been as well raised, as here; and it may, indeed, be unwise to encourage objections to awards, which look rather technical. The award is substantially bad, because it does not appear, that the third arbitrator, who did not join therein, had notice of the meeting of the other arbitrators, though the award by two had been sufficient, if the third had had notice. Dalling vs. Matchett is directly in point.(d) But my chief objection is, that the arbitrators were guilty of what amounts to misbehaviour. If so, the court ought to have heard the proof offered, of the truth of the facts iny puted ; (a) and should, perhaps, infer misconduct from very gross mistakes.(b) If the arbitrators departed from the plainest principles of law and natural justice, this was misbehaviour, perhaps partiality. And I affirm they did so. Happily, actions for criminal conversation are extremely rare in this country ; and the arbitrators, possibly, might not have known, that the general deportment of the plaintiff’s wife, before her alleged seduction by the defendant, was a proper subject of inquiry. But they could not have been ignorant, that it was their duty to hear proof touching the credit of the plaintiff’s witnesses. The proof offered was exactly of the proper kind to impeach their credit. The facts stated in the exceptions were ground for an application to the summary jurisdiction of the court, to set aside the award, (c)</p> <p>The present doctrine of new trials is comparatively modern. The courts have been gradually improving that branch of practice ; and, if reason require further improvement, the courts may well make such further improvement: this is the very genius of the common law. In cases of personal tort, it is now established, that a new trial may be granted for excessive damages, contrary to some old precedents ; and by parity of reasoning, a new trial may be granted for inadequacy of damages, notwithstanding other precedents. I apprehend the rule to be now settled, that new trials, in all cases, whether sounding iu contract or in tort, whether for excess or smallness of damages, depend, as they ought, on the sound discretion of the court. [Roane, J. Have not verdicts, in actions for personal tort, been likened to verdicts in criminal cases; in which, if a verdict be in favour of the defendant, however improperly, the court cannot interfere ?] Williams. That was the old ground, founded on the amercement, and capiatar pro fine, now obsolete in effect in England, and abrogated by statute here. I insist, that, if the certificate of the judge be correct, (and the defendant did not even except to it,) the jury must, in this case, have been actuated by undue motives, or some gross error or misconception of the subject; which brings this case within the doctrine in 8 East, 256. cited by Mr. Leigh. And surely the reference to arbitration waived the point. In Leftwitch v. Stovall (d) the court held, that a subsequent submission to arbitration, by rule of court, obviated an objection for want of a declaration in the cause. In Brickhouse v. Hunter, &c. (a) an arbitration was allowed to obviate objections to the jurisdiction of the court where the controversy was pending, and to avoid the bar of a former judgment at law. As to the objection for want of mutuality in the award, in not awarding a release to the defendant; that objection holds only in regard to awards made in pursuance of arbitration bonds, and not at all to arbitrations under rules of court, for reference of a particular suit; the judgment being per se a bar to a new action for the same cause. Another objection to the award is, that one of the three arbitrators was not present at the arbitration, nor notified of the time and place thereof. The submission was to the three, or any two. Both parties were present, and neither objected on the ground that one arbitrator was absent, to the others proceeding in the arbitration ; and the objection, if there be any thing in it, should have been made in the court below, where the plaintiff might have controverted the facts on which it was founded ; it comes too late in this court. I consider the last objection as an impeachment of the award on the ground of mistake in fact. Now, as to matter of that kind, the award concludes the parties forever ; nor can it in that respect be reviewed by the court, unless the arbitrators were guilty of corruption or partiality.(b) The arbitrators were competent to determine on their own knowledge, without any evidence. And the opinion of the court, when it granted the new trial, is confirmation of the justice of their award.</p> <p>It is said, that the courts have been gradually enlarging their power of granting new trials in order to fulfil the ends of substantial justice. This is true. But then, in every step they have advanced, they have taken care not to run counter to settled rules, and direct adjudications, limiting their discretion: and, in regard to the particular point in controversy, the modern improvements, and the ancient rigor, as I have shewn, go hand in hand, and alike deny to the courts, in cases of personal tort, and especially in actions for criminal conversation, the power of granting new trials for inadequacy of damages. Then, as (o the waiver of previous objections, inferred from the subsequent submission to arbitration, the authorities cited seem by no means conclusive. In Leftwitch v. Stovall, the main ground, which the court went on, was, that the parties, by submitting their case to arbitration, had waived all objections to the want of legal forms; so that the application of that authority to the present case depends on this, whether the granting of the new trial was matter of legal form only ? Brickhouse v. Hunter was a case in chancery, wherein relief was sought against an oppressive judgment at law; and this court held, that the judgment at law, as well as the suit in chancery, was within the general terms of the submission; and that, therefore, the arbitrators might well make an award according to the very right of the case, notwithstanding the judgment at law. I did not mean to press the objection to the award for want of mutuality ; and I shall not examine Mr. Williams’s distinction on that head. As to the third point; the submission in Dalling v. Matchett was exactly like that in the present case ; to three or any two. Arbitrators constitute a tribunal, and the submission to arbitration, is the commission from which they derive their authority; therefore, it ought to appear, upon the face of the record, that. this tribunal of arbitrators was legally constituted according to the submission ; either, by shewing that all were present; or, if one was absent, that he had notice to attend, and declined. On the law touching the last point, I think we are agreed, that the award can only be impeached on the ground of misbehaviour in the arbitrators : but I say, they were guilty of misconduct, and that Mr. Williams hardly denies. No confirmation of the justice of the award can be drawn from the opinion of the court of Amelia, on granting the new trial; since that opinion might have been founded on the testimony of the very witnesses, whom the defendant might have proven to be unworthy of credit, before the arbitrators, had they not prevented him.</p>

William Wilson and William Herbert, surviving administrators of Robert Adam deceased, brought their action for covenant broken against Janet Dow, assignee of Peter Dow, in the Superior Court of law of Loudoun county.

Benjamin Fickijn, being employed by William Oden, as his agent, to collect a debt from Beverly R. Waggoner, took a biii penal for the same, amounting to $257,30 cents payable to himself, Oden assigned to Benjamin Botts, for valuable consideration, “ the debt due to him from Waggoner, or Ficklin, as “ the case might be, to secure which a bond was given by Wag-goner to Ficklin ” authorizing Mr. Botts “ to use liis name at !i his pleasure in the recovery“ but he (the assignor)…

<p>1. In an action of asrfump- ■ sit in die Supeiio* Court of a > county, the de.» , claiat'on’s laying the venue in a different county, and omitting to state that the cause of action arose within ¿üe jurisdiction o'/ the coims v not in anvat dVr'\ 'cífo v* } -cnf, -ü H» 4f m. m</p>

<p>IN an action of detinue for sundry slaves, the plaintiff John Soper offered in evidence, in support of the issue joined on his part, an absolute deed, duly recorded, from James Thomas, sen. (of whose estate the defendant Joel Thomas was administrator,) to himself, of the slaves in question : whereupon, the defendant offered to impeach the validity of the said deed, as fraudulent and without good or valuable consideration, by testimony, first that James Thomas the vendor held the possession of all the negroes in the declaration mentioned from the time of executing the said deed to that of his death; secondly, that Joel Thomas the defendant, qualified as one of the administrators of the said James and that the negroes in the declaration mentioned, came to his possession as administrator of the said James Thomas ; after which the defendant offered to prove that executions against the estate of the said James Thomas had been returned, by the sheriff, “ that there were no “ goods and chattels of the intestate to be found in his baiii- “ wickto the admission of which parol proof, the plantiff, by his counsel objected, and the court sustained the objection-The defendant then moved the court to instruct the jury that the said deed was fraudulent as aforesaid; which instruction the court refused to give, and instructed the jury that, “ all hough ” in the ease of an absolute deed for negroes, where the vendo? w remains in possession after the execution and recording the “ satne, such deed, as to creditors and subsequent purchasers, is “ to be regarded as fraudulent and void; yet, as between the “ vendor ,and vendee, and their immediate representatives, it “ was obligatory, and could not be impeached by the testimo- “ ny offered by the defendant as administrator of the grantor, “ which defendant was not himself a creditor.” To this opinion of the court, a bill of exceptions was filed; and, a verdict being found, and judgment rendered for the plaintiff, the defendant appealed to this court, which, on the 6th of February, 1816, affirmed the judgment.</p>

UPON an appeal from a decree of the Superior Court of Chancery for the Richmond District.

<p>THE appellees brought a special action on the case against the appellants in the District Court of Suffolk. The declaration was in the following words: “District composed of the “ counties of Norfolk, Isle of Wight, Princess Ann, Nansemond, “ and Southampton, to wit, John G. Davis and John Chalmers, “ merchants, trading as partners under the firm of Davis & tjti'.hners, complained of James Hawaii, James Thorburn and 5'---Dmnltkcn, trading under íhe^fiim of James Hmvatt& “ Vmwej.iy, is custody, &c. of a pica of trespass on the case, 11 tin’ that, whereas, on the 30 th day of July, in the year of our “ Lord 1802, asid from that time to tho present day, the said “ plaintiffs, were merchants trading as partners, and residing in "• the tevva of Petersburg, in the state of Virginia, and the said “ defendants, on the said 30th day of July, iu the year of our K Lord 1802, and from that period, ’till the present day, were “ commission merchants and partners, residing in the borough of Norfolk, in the state of Virginia, there carrying on business as agents and factors, for a reasonable and accustomed com- “ mission or compensation to be paid to them by those who “ employed them as factors or agents to sell and dispose of the 51 property of those principals or constituents; and, by the law “ of the land persons acting as factors and agents aforesaid, are “ bound to obey all the legal and proper orders and instructions SI of their principals and constituents ; and whereas the said “ plaintiffs, on the said 30th day of July, being possessed of 5t 50 hogsheads of tobacco, of Petersburg inspection, on the ci same day and year, in the borough of Norfolk, within the t! county of Norfolk aforesaid, delivered the said 50 hogsheads “ of tobacco into the hands and possession of the said defend» “ aids, as their agents and factors, to he disposed of by them ss for a reasonable and accustomed commission and compensa* “ tion, to be paid to them by the plaintiffs, and in conformity “ with certain legal and proper orders and instructions given by the plaintiffs to the defendants ; yet the said defendants, 11 acting as agents and factors aforesaid, afterwards, to wit, on the 6th day of August, in the year of our Lord 1802, at Nor-i( folic aforesaid, contrary to the legal and proper orders and in* t! slructions of the plaintiffs, did dispose of the said 50 hogs- “ heads of tobacco; — and whereas, by the law of the laud, an cs agent and factor is bound to obey evefy legal and proper or* “ der and instruction of his principal; and whereas the said “ plaintiffs, on the 30th day of July, in the year of onr Lord 1802, being merchants residing in Petersburg, did constitute “ and appoint the said defendants (who then were and still are M merchants residing in Norfolk,) their agents and factors to ” sell and dispose of 50 other hogsheads of tobacco of the Pe- “ tersburg inspection, for the benefit of the said plaintiffs; and the said defendants, acting as agents and factors aforesaid, “ for a reasonable and accustomed commission and compensa* “ tion, on the loth day of August in the same year, at Nor“folic, within the county of Norfolk aforesaid, and the jorisdic- “ tion of the court, did contract with John Cowper & Company, “ (then merchants in good credit residing in Norfolk.) to seil “ to the said John Cowper & Co. the said 50 hogsheads of tobacco, at the price of 29 shillings per hundred weight, for “ which the said defendants were to receive of the said John “ Cowper &Co., 50 barréis of pork, at the rate of $15 per bar* “ reí, and to accept the promissory note of said John Cowper “ & Co. payable at three and four months after the delivery of <s the tobacco, for the residue of the purchase money cf the “ tobacco ; and, afterwards, on the same day and year af Nor• e‘folk aforesaid, the said defendants received of the said John “ Cowper & Co. the said 50 barrels of pork ; and whereas, afterwards, to wit, on the 31st day of August, in the year of !! our Lord 1802, at which time the said 50 hogsheads cf tobacco “had not been delivered to or come into the possession of the said “ John Cowper & Co., but were still in the possession of the dc- “ fendants, as agents and factors of the plaintiffs, the said Chal- “ mers & Davis, having after the contract made as aforesaid, “ ascertained that the said John Cowper & Co. subsequent to the said contract, were injured in their mercantile credit, and iu “ fact had become insolvent, did order and direct the said de- “ fendants not to deliver the said tobacco to the said John “ Cowper & Co., unless the said Cowper & Co. would give “ approved endorsers on their notes for the balance of the pur* “ chase money of the tobacco; — yet the said defendants, not- “ withstanding the instructions and orders aforesaid, and in “ opposition thereto, did deliver the said 50 hogsheads of to- “ bacco to,the said John Cowper & Co., afterwards to wit, on “ the 6th day of September, in the year of our Lord 1802, at “ Norfolk aforesaid, in the said county of Norfolk, although “ the said John Cowper & Co. did not give an indorser on their “ notes, or otherwise secure the payment of the balance of the “ purchase money of the tobacco; and although, as the plain-l! tiffs aver, the said John Cowper & Co. were insolvent on the “ 6th day of September, in the year 1802; by reason of which w premises, the plaintiffs have sustained damage to the value Si of four thousand dollars, and therefore they produce the sub.”</p> <p>The defendants pleaded “ non asswnpserunt,” and issue was joined. After which, the parties, by their counsel, agreed h cast, in lieu of a special verdict, stating the facts io such manner as, in substance, corresponded with the allegations iu the second count of the declaration ; and with what is said in the following opinion of this court; and consenting that, if, upon the whole matter, the court should be of opinion that the law was for die plaintiff, judgment should bo entered for him for three thousand seven hundred and three dolhus and ninety cents, damages; — if not, then for the defendant.</p> <p>The District Court pronounced judgment, accordingly, for the plaintiff; — from which the defendant appeal'd.</p>

<p>1. In debt on a bond, if the <!«•- duration de» serihe it as a writing lory for a sum of money; ami the defendant. without praying oyer of the bond, plead payment, and also several other pleas, alleging perleraanee of a condition, according to which the bond was to be discharged, by the delivery of a certain quantity of iron ; and, issue being joined thereupon, the parties go to trial; and it appears, by bilis of exceptions, that the evidence before the jury did not apply to the plea of payment, but to the other pleas only; a verdict for the defendant ought to be set aside, and a new trial awarded, with leave to him to taka oyer of the condition of the bond, and plead de mm all his pleas, except that of payment, being irrelevant to tiie claim set out in the declaration, and, therefoi e, the ■issues jo'ned upon them being immaterial. And this is the case, notwithstanding a copy of a bond, corresponding with that described in the pleas, bo inserted in the transcript of the record, and certified blithe, risrk to bo the b"!>d or which the declaration was filed.</p> <p>k mistake oí the clerk of this court, in not entering the name of counsel on the argument docket, in consequence of winch, thecounsel was not heard, (being absent, with leave of the court, when the cause was called,) is not sufficient ground foj re-instating the cause, after the decision has been regularly certified to the court belav,'.</p>

i UPON an appeal from a decree of the Superior Court of Chancery for the Williamsburg District.

<p>THE appellants, hittiebury Royall and John Royall, administrators of John E. Royall deceased, filed their bill of injunction in the superior court of chancery for the Richmond district, setting forth, that Joseph Royall departed this life some time in the year 1784, after having made and duly published Ms last will and testament, since admitted to record, of which a copy was made an exhibit; Lucy Royall being his widow, and John E. Royall his only son,- that, after the death of the latter, (who died in possession of the whole estate h ft by the said teshitor, except what ho had sold,) and eight years after the death of the widow, Richard Eppes, without the knowledge of the plaintiffs, obtained the administration of her estate, though her son John E. aforesaid had paid her funeral expenses and debts, and taken possession of all her estate ; that the said Richard, having obtained this legal advantage, then brought a suit in the Petersburg district court against the complainant John Royall, holding as administrator of the deceased JohnE. Royall, for certain slaves which he the said Richard administrator of Lucy Royall claimed, as given to her by the will of her husband aforesaid; that, in the progress of that suit, a case was agreed, stating the fads corredly ; and, thereupon, a judgment was entered for the plaintiff at law, which judgment was affirmed by the court of appeals. (a)</p> <p>The complainants did not mean to controvert the propriety of that judgment, but contended that, although Richard Eppes as administrator aforesaid, was entitled to claim and to have the slaves recovered, yet, that he must hold them subject to the law of distributions ; and, ns it was a fact, staled in the case agreed, that no debts remained due from the estate of Lucy Royall, there could be no reason why the complainants, “ who mere the “paternal uncles of the sold John E. Royall, being Ms father’s “ only brothers,” should not be permitted to retain in their hands what the said Richard would be compelled to distribute between them.</p> <p>The complainants farther represented that Eppes was the nephew of the said Lucy, and pretended that he, in that character, as well as his brothers and sisters, were entitled to a portion of the estate of the said JohnE. Royall: — how far this might be correct, they submitted to the court to decide: — but, whatever might be the proportion to which the maternal as well as paternal relations of the said John E. Royall might he entitled, there could be no doubt that the debts due from the estate of the said John E. Royall must be first satisfied, and that the residue only would be liable to distribution. — They con-eluded therefore with praying “such relief as their pase re* “ quired.,l></p> <p>The record of the suit in the Petersburg district court, being-exhibited with the bit], contained the case agreed, (partly set forth in 2 Munf. 479 — 481 ;) in which it was also stated, that John E. Royall died greatly indebted; that the slaves in question were necessary to pay his debts; and that the defendant at law was the administrator and one of the co-heirs and distributees of the said John E. Rouatt, deceased.</p> <p>The answer of Richard Eppes admitted the truth of the facts get forth in the case agreed at law, but insisted that the plaintiffs, as representatives and distributees of John E. Royall, had no manner of claim to distribution of the estate of Lucy Royall, f‘for it is other estate that distribution is demanded that the whole question arising in this controversy had been already determined in the court of law, and the plaintiffs stated no ■;quit-able matter on which they could ground their application for relief in equity ; and that, the estate of Lucy Royall the mother, not being liable to the debts of John E. Royall the son, the plaintiffs had no claim to relief on that head.</p> <p>Chancellor Taylor dissolved the injunction, and afterwards dismissed the bill with costs ; from which decree the plaintiffs appealed.</p>

THE appellants exhibted their bill to the chancellor of the Richmond district, setting forth that Scott (who was very much involved in debt) and his wife, before their… Held: that if the trustee mas inattentive to his trust, the court “ might interfere, at the instance of cestui que trust, as he has “ but the equitable, not the legal estate. But, in the case before ‘‘ me, the trustee is stated to hold himself bound to interpose ; and ‘‘ the lam furnishes him the means.

THIS was an action of assumpsit, brought by Joseph Jones against Isaac Medley, in the superior court of law for Halifax county, to recover… Held: as his own goods and chattels, during the life of the said Elisabeth Rodgers, or until such bond and security should be given, aa aforesaid ; that, in the event of their being delivered to the complainant, he should account for the annual profds thereof, to her, during her life, or until such bond should be given, &c. In the same…

<p>UPON a writ of supersedeas to a judgment in favour of Samuel Boggess and Henley Boggess demandants in a writ of right against Doddridge Pitt Chichester. The count was in the form prescribed by law, for a tenement containing 103 acres of land in the county of Fairfax, bounded, &c. The defendant by his attorney came and defended the “ right of the said Samuel “ Boggess, when and where it. behoved him, and all that con- “ cerned it, and whatsoever he ought to defend, and chiefly the “ tenement aforesaid with the appurtenances as of right, name“ly, &c., bounded, &c.; put himself upon Ihe assize, and pray- “ ed recognition to be made whether he had greater right to “ hold the tenement aforesaid with the appurtenances, as he “ then held it, or ihe said Samuel to have it as he then demanded “ it.” To this plea, there was no replication ; yet a jury was impannelled, and found a special verdict, on which Ihe court entered judgment for the demandants. The writ of supersedeas was awarded, by this court, on the petition of the defendant.</p>

THIS was an action of trespass in the superior court of Albemarle county, originally brought by Goodman Barksdale against Thomas Garth sheriff of that county, for unlawfully seizing two slaves belonging to the plaintiff. — Plea not guilty,” and issue. The cause being continued at October term 1812, it was agreed that it should not abate by the death of either party.

<p>William Scott and Mary his wife, formerly Mary Davis widow of Edward Davis deceased, presented a bill of injunction to the judge of the superior court of chancery for the Richmond district, stating that the said Edward died about the month of October, 1806, seized and possessed of a considerable estate, real and personal; — that, before his death, he duly made and published his last will in writing, in which, (among other things,) he bequeathed to the plaintiff Mary certain slaves for her life, and certain other slaves to Martha E. Davis, (a posthumous child,) as her own absolute property ; — that Hard-away Manson was appointed, and lawfully qualified as executor of the testator, and guardian of the said Martha E. Davis, and, in the course of his administration as such delivered to the plaintiff Mary the slaves devised to her as aforesaid for her life, and held, in his character of guardian aforesaid, the slaves devised to Martha E. Davis his ward, as aforesaid, which circumstances ought to be regarded (until the contrary should appear,) as conclusive proof that independently of the said slaves, the said executor possessed enough of his testator’s estate to pay every debt chargeable thereon; for debts are certainly to be paid before legacies, and, therefore, whenever an executor shall discharge legacies, the inference inevitably is, that all debts have been paid, or that they are ready to be paid by the executor.</p> <p>The complainants farther stated that, the securities of the said executor for his administration having demanded counter-security, which he failed to give, administration de bonis non with the will annexed was granted to the plaintiff Mary, then Mary Davis ; that, after the death of Hardaway Manson, she also qualified as guardian of the said Martha E. Davis, and in that character was possessed of the slaves devised to her; — that, in their opinion, they had fully and faithfully administered all the estate of the said Edward Davis which had come to their hands to be administered; — but of this they were ready and willing to render an account; — that, since their intermarriage, a judgment had been lately obtained against them, as administrator and administratrix, in the superior court of law for Dinwiddie county, by Halliday and Hintons, for the sum oi 1391. 5s. 7 1-24. with legal interest thereon from the 4tb day oi September, 1807 ; — the suit in favour of the said Halliday and Hintons having come to trial unexpectedly, which prevented their shewing, under the olea of pleiie adminislravit, that nd assets remained in their hands: — that, a writ of fieri facias being issued upon the said judgment, was levied on thiee slaves the property of Martha E Davis, acknowledged to be such, and held as such, not by the complainants only, but also so previously held by the said Mamón i that, in performance of the duty which he owed to his ward, the complainant William Scott forbade the sheriff to levy the said execution upon those slaves; which he nevertheless persisted in doing, and would proceed to sell them, unless restrained by the court. Thé plaintiffs therefore prayed an injunction to stop the sale, and for such other relief as their case required; — making the said Halliday and Hintons, and also Thomas Parham acting administrator of Hardanav Manson, defendants to their bill.</p> <p>Chancellor Taylor refused to grant an injunction according to the prayer of this bill; but it was granted by Spencer Roane a judge of the court of appeals judges Brooke, Ca-bell and C'oalíer concurring, and judge Fleming, being Absent.</p> <p>The defendants Halliday and Hintons filed their answer, stating that, after every effort had been used by the complainants to defeat their claim, (the justness of which is not controverted,) they obtained their judgment at law, and sued out execution ; that the same was levied on negroes, which were the property of the said Edward Davis in hist life time ; that they Were informed, and most sincerely believed, that no assignment was made to the widow', or to Martha E. Davis, of the negroes bequeathed to them respectively : — there was no evidence of it on record; nor did the fact ever take place ; but, if it did, the complainants were bound to prove it; and, even in that case, as they had voluntarily brought themselves before a court of equity, the court ought to pronounce exactly such a decree as if the respondents had instituted a suit therein. If, however, such an assignment was made, it was strange that the widow should have taken on herself the burden of administer! <g on the estate, fwhen. if the allegations of the comitlainants were trim. the estate was nearly, if not entirely, administered;) and that she should not have pleaded that fact to the suit. The respondents remarked, to shew the fraudulent conduct of the complainants, that, whenever a judgment was obtained against Scott for a debt contracted by himself, a marriage contract was exhibited by the wife as a bar to the levying of the execution; that if a judgment was obtained against herself as administra-, trix, then the property was shielded by its having been assigned and allotted to her by the executor ; and if a judgment was obtained against Scott and wife, for a debt .contracted by herself while a feme sole, then the property belonged to the estate of Edward Davis, and no disposition could be made of it until his debts were paid off and extinguished. Yet they paid no debts of any description or character!</p> <p>The answer of Thomas Parham, administrator of Hardaway Manson, staled, that, shortly after the complainant Mary qualified as administratrix of Edward Davis, an order was made by the county court of Dinwiddie, requiring certain gentlemen t<j examine, state and report the accounts of the said 'Hardaway Manson as executor; that, in compliance with that order, the commissioners did report a balance to be due from the said executor, amounting to about 160 or 200i. ; that, shortly after wards, the complainants Scott and wife instituted a suit against said Manson to recover that balance, and a judgment was confessed by him in their favour for the same ; that, the said judgment not having been paid in the life time of the said Manson, a scire facias to revive it was sued out by the complainants against this respondent and Joanna Manson as administrator and administratrix of said decedent; which scire facias was still pending in the county court of Dinwiddie; that this respondent had made to the complainants several payments in part of said judgment, and meant to pay the balance, unless this court should direct otherwise: but he insisted that the settlement aforesaid was final and conclusive between the said Davis’s estate, and the said Manson’s, unless fraud or mistake could be shewn; and that the complainants had made it binding on them by accepting it, and suing for, and receiving a confession of judgment for the amount. “ After this, it surely “ cannot be contended that this respondent is accountable to “ Hatliday and Hintons, and to the complainants too; or that s! Munson acted improperly in settling with them the balance “ due to his testator; in as much as the law transferred upon c< them (he duty of paying all outstanding debts against the “ estate: as lit tie can it be contended that because he gave up “ Hie slaves to the widow and orphan of his testator, perhaps -s prematurely, therefore that property, and the complainants, “ in whose hands it la, should be exempted from the payment "• of those debts.”</p> <p>Chancellor Taylor dissolved the injunction at June term, 1813. Certain affidavits, upon due notice, were afterwards taken in support of the bill; proving, in substance, that the slaves bequeathed to Martha E. Davis, as aforesaid, were allotted to her by Hardaway Manson, and hired out for her benefit by him as her guardian. Á motion was then made, in vacation, for re-iudatomeiat, which the chancellor overruled; but made an endorsement upon the papers, “ that those affidavits might be' bi considered as a part of the record in this ease, and, as if they “ had been filed before the motion was made for a dissolution ; “ that tire plaintiffs might, in their application for an appeal “ from that order, have the full benefit of ¡hem.”</p> <p>Opon a petition presented tor that purpose, an appeal was granted by a judge of this court.</p>

<p>1. A partition, which has long been acquiesced in, and acted upon by the parties ’generally, ought not to be disturbed at all on the ground of irregularity only; though if unjust or illegal it may be impeached by a party who never acquiesced.</p> <p>2. Under the circumstances of this case, one of the persons entitled to partition having been in possession and enjoyment of the whole land, for many years, through want of knowledge of the title of the other partners, to whom he made their title known, immediately after it was discovered by himself; upon a bill filed by them for partition, it was considered equitable that he should account for their proportions of the rents received by him, deducting his disbursements for securing the title; that all the leases, and agreements of lease, he had made of the land should be acquiesced in by the plaintiffs; and that, fora part which he had sold, he should pay the price received, with interest from the time of the sale; the time when he received It not appearing to be different from that of the sale-</p> <p>3. Interest also would have been allowed the other partners, on their proportions of the rents received by him, from the tirpe of filing their bill; but, by their consent, it was allowed from the beginning of the next year after the last receipt.</p>

<p>1. A testator dovised his real estate in Virginia, to his executors, to be sold by them, or the survivor of them, ai sveh time., and in such manner, as they, or the survivor of them, should judge most ad= vantageous; and pave and bequeathed the money arising from such sales, mid the rents and prqfis of the said lands, which might accrue before the sales, to his sisters, who were aliens ; subject, nevertheless, to the payment of his just debts, and of certain lega» cíes to ins executors, Ornare. 2. A testator devised his real estate in Virginia, to his executors, to be sold by them, or the survivor of them, at such time, and in such manner, as they, or the survivor of them, should judge most ad= vantageous; and gave and bequeathed the money arising from such sales, mid the rents and prqfis of the said lands, which might accrue before the sales, to his sisters, who were aliens ; subject, nevertheless, to the payment of his just debts, and of certain lega» cíes to his executors, Quosre. whether, under this will, the title of the alien sisters was good against the commonwealth claiming the money for which the lands were sold ; the testator having died without any lawful heir, and his personal estate being sufficient to pay his debts P</p>

THIS was an action of debt on a bond, in behalf of Edward Graham, administrator of William Graham deceased, against Stephen Cook in the Superior Court of Loudoun County.

The Object of the Bill, exhibited by the Appellee against the Appellant and others, was to prevent the sale by the Sheriff, under an Execution at the suit of the Appellant, of certain slaves, which had been bequeathed by the last will and testament of Josias Payne to his daughter the wife of William Mitchell, and delivered to her as her property by the executors of her said father. — The Judgment in favour of Sampson was against William Harrison, Executor of Josias Payne,…

’ THE Appellant filed his Bill in the late High Court of Chancery against William Harrison, acting Executor and legatee of Josias Payne deceased, William Payne, Robert Payne, and Ar-1 dhihald Bryce, executor of William Mitchell deceased, who i were also legatees of the same Josias Payne, for the purpose of getting satisfaction of his judgment at law, mentioned ante, (in ¡the case last reported,) out of the assets in the hands of the ’ said William Harrison, of which he…

Daniel D. Davisson assignee of Isaac Davisson, brought suit on a bond against Benjamin Wilson, jr., who pleaded that, before notice of the assignment, the effects of the assignor were attached in his, the defendant’s hands, and a decree entered that he should pay the debt to the attaching' creditor, on bond and security being given in the usual form; — and that, bond and security being afterwards given, he had paid the debt to the attaching creditor.

<p>THIS was a suit in Chancery, in behalf of the widow and children of William C. Hudson deceased, against James Henderson, Administrator with the Will annexed. The object of the Bill was to surcharge and falsify the administration account, which had been reported by commissioners, appointed by the County Court of Amelia, on Henderson's motion, and admitted to record ; shewing a balance due to him, of 210Z. 16s. Q\d., on the -24th of February, 1803 ; subject to credits in the estate’s favour, amounting to 117Z.'2s, 1 Id., for bonds remaining in his hands uncollected- The plaintiffs particularly complained of certain charges, allowed by the commissioners to the defendant for medical services, and also for repairs and additions to a barn upon the plantation, which the widow alleged to be unnecessary, extravagant and injurious to the land ; but the Bill contained, moreover, a prayer for a full, true, and fair account of all the sales of the personal estate, &e., and for general relief.</p> <p>The defendant, by his answer, insisted that the account had already been fully and fairly settled by the commissioners, up to a certain time ; that the plaintiff, Mrs. Hudson, was consulted" on, and notified of the time and place of their meeting ; was actually present while every item passed under their inspection, and acknowledged the whole statement to be agreeable to factobjecting to nothing, but the charge fer medical services, which the commissioners considered just, and equitable. He declared himself ready to account for his subsequent transactions ; but admitted that, if the complainant eoiild point out. any thing fraudulent, unjust, or untrue in that account, he was ready to settle it over again; but he trusted that the Court would not put him to the trouble of a re-settlement, without the suggestion and proof of something improper and illegal lll his conduct.</p> <p>Many depositions were taken on both sides, from which it appeared that the medical account, to which the plaintiifs objected, had not been improperly allowed : that the repairs and additions 1<> the barn were commenced, upon the scale contemplated by the defendant, with the consent of the widow ; when all the timbers had been procured, and the work was far advanced, she made objections, and wished it to be relinquished. The testimony, concerning the utility and propriety' of those additions, was doubtful. It was also proved, that the defendant sold, to sundry persons, by private bargains, five negro men belonging to the estate, for 5251. cash, being less than eould have been got for them on the same terms, at public auction; that he also sold at auction three boys, and himself became the purchaser, for 179Z. 10s. 0d.; other persons having been prevented from bidding, by doubts concerning the title, suggested by liimsef.</p> <p>A commissioner, (to whom the account was again referred by an order made in the cause,) reported, September 28, 1809, that he had carefully examined the Bill, Answer and Exhibits, and found the plaintiifs justly indebted to the defendant in the sums of it. 3s. 7|¿Z. principa!, and 81. 10s. id. interest, calculated up to the 25thof September, 1809. Incoming to this conclusion, he made no alteration in the account reported by the former commissioners, in which, after examining attentively the accounts and vouchers, together with the depositions of the two surviving commissioners, he could find no error, and therefore only stated the subsequent transactions.</p> <p>To this report the plaintiffs filed exceptions : 1st, that, upon the evidence, the repairs and additions to the barn ought not to have been allowed : 2dly, that the defendant should have been charged more than 5251., for the five negro men ; since it appeared in evidence that they were worth 670/. and would have sold, to the highest bidder, for much more; and he had not pursued, in the sale, the law for regulating the conduct of executors and administrators, nor taken that course which a prudent man would have adopted to obtain the best price, or the real value of the negroes ; 3dly, that the sale of three negro boys, made in March, 1803, for the sum of 179Z. 10s. 0<Z., ought not to be confirmed ; it being in proof that the defendant bought them himself, and at a very reduced price, after deterring others from bidding, by exciting doubts as to his right to sell, on account of want of title in his testator, whose right to the slaves in question was in fact indisputable: and 4thly, that the commissioner had improperly allowed the defendant (by confirming the former account,) the sum of 7Z. 1 Is. Ad., for certain plains (for negro clothing) purchased in 1802, of James Robertson, jr., “ when is was proved that they were damaged, “ and of no value, and the defendant bought them of Robertson, “ knowing their quality, in order to discount a debt due him “ from said Robertson.” (1)</p> <p>The County Court sustained the first exception, and accordingly disallowed the defendant the sum of 107Z. 5s. 11 Id., charged for repairs and additions to the barn ; and, considering that the commissioner ought to have allowed the plaintiffs the real value of the negroes, mentioned in the second exception, ordered that the sum of 1551. be added to the sum allowed by the commissioner for the said negroes, and be charged to the defendant. It also set aside and annulled the sale of the slaves mentioned in -the third exception, and decreed that the defendant deliver to the plaintiffs the last mentioned slaves, or such of them as were alive ; and overruled the 4th exception.</p> <p>Upon an appeal by the defendant to the Superior Court of Chancery for the Richmond District, this decree was reversed, and another pronounced, in conformity with the report of the commissioner, dated September 28th, 1809,- that the plaintiffs pay to the defendant the sum of 15Z. 14s. 2§<Z., with interest on 71. 3s. lid., part thereof, from the 25th of September, 1809, until paid, and his costs: whereupon they appealed to this Court.</p>

John L. Wii.iuns filed his Bill in the Superior Court of Chancery for the Richmond District against Samuel Pearce, to ' be relieved against a mistake, which he alleged had occurred to his prejudice in an exchange of bonds, and shewed by an account stated.

ON the 0th day of August, 1811, an agreement was reduced to writing, between Thomas Taylor of the city of Richmond, (who acted in behalf of John Graham,) and Patrick Hendren of the county of Charles city, stating that Taylor had purchased of H ndren “ a tract of land in the state of Ohio, con- “ taining twelve hundred acres, more or less, at three dollars “ per acre.” The land was described as situate “ near the “ town of Williamsburg, and as the saíne land that was pateat-…

THE Appellee James Belches filed his Bill in the Superior Court of Chancery for the Williamsburg district against Robert West, Thomas West, and Morgan Tomkies ; stating that the complainant and Francis Willis were securities for Charles Cry men, in two bonds, to the said Tomkies ; one for 150/., and the other for 82/. lO.v. 0 The defendant Robert West answered, denying all connexion with Tomkies in the original transaction, and all knowledge of any usury; and stating that…

<p>THIS was an action of Assumpsit in behalf of Thomas Ellis against George Turner's Administrator, in the County Court of Caroline.</p> <p>The Declaration contained three Counts. The first alleged a mutual parol submission to arbitration of certain matters in controversy between the plaintiff and George Turner, with an agreement that the award should be binding upon both parties, and set forth an award, “ of which the said Turner had notice,” (1) but did not set forth a promise, thereupon, that he would pay the money awarded : (2) ’ the second and third Counts were for money had and received, and a balance slated to be due upon an insimul computassent. The breach of promise averred was in the following words : “ Nevertheless the “ said Intestate in his life time, and the said Reuben since his “ death, not regarding his several promises aforesaid, but con- “ triving to defraud the said Thomas in this behalf, hath not “ paid the said sum of money, or any part thereof, but the same “ to pay the said Intestate in his life time, and the said Ren- “ ben since his death, hitherto hath refused, and the said Reu- “ ben still doth refuse to nay the same.”</p> <p>The defendant, having pleaded non assumpsit, and being afterwards permitted by the Court to plead the Act of Limitations, on both which pleas issues were joined, at a subsequent term a- Jury was empannelled to try the issue” joined, a verdict was found, and Judgment entered for the plaintiff, which was reversed by the District Court of Fredericksburg; because it did not appear that the issue, joined upon the. plea of the Act of Limitations, had been tried. The cause, being remanded Cor a new trial, the defendant fiied a Demurrer to the plaintiffs evidence, which was therefore spread on the record, and appeared applicable only to ihe first Count in the Declaration.</p> <p>The County Court was of opinion that, upon the Demurrer to evidence, the law was for the defendant, and gave judgment accordingly. Upon an appeal tita Superior Court of law affirmed this judgment, upon the ground, “ that though the evi- “ deuce in (he Demurrer consisted substantially with the first “ Count of the Declaration, yet that Count was utterly in- “ sufficient to ground a judgment on in favour of the plaintiff.”</p> <p>To this Judgment a Writ of Supersedeas was awarded by this Court.</p>

<p>IN this case, Miller obtained a Judgment against Blannerhassett in the County Court of Wood. A writ of Supersedeas to that Judgment was awarded by the Superior Court of law, whereupon the Bond for prosecuting the Supersedeas was executed by a Surety, but not by Blannerhassett, or any other principal obligor in his place. The Superior Court having reversed the Judgment, Miller appealed to this Court, where, after argument, it was decided that the Judgment of the Superior Court was erroneous, because that Court had no cognizance of the case, the Supersedeas having been improvidently issued; since the Bond was not signed by Blannerhassett, or any responsible person for him.</p>

i THE Appellant John Nicholson, as surviving partner of . John and Joshua Nicholson, who were assignees of Robert Matthews, brought an action of Debt against John Dixon, heir and devisee of John Dixon deceased. Upon a general Demurrer to the declaration, the Superior Court of law entered judgment for the defendant, to which a Writ of Supersedeas was awarded.

THIS v as an action of Covenant, brought by the Appellants against the Appellee in the Superior Court of law for Stafford County, upon an Indenture made the 3d of March 1803, between Francis Thornton and Sarah his wife, and Robert Dunbar and Elisabeth his wife, of the one part, and Levi, John and William Hollingsworths, of the other part; by which the said Thornton and wife, and Dunbar and wife, in consideration of the sum of five thousand dollars, bargained and sold to the…

<p>1. A Bill fox’ relief against a writing purporting an acknowledgment of a gift of property by the complainant to the de* fendant, on the ground of its having been obtained by frauds presents a proper case for equitable jurisdiction, though a suit at law* founded upon such writing, might be defeated without coming into equity.</p> <p>% The second point in Bui* lock v. Irvintfo Administrators 9 4 Munf. A5% and íq Marshall v. Thompson 2 Munf,: 412, again decided*</p>

John Browne Cutting and Sally his wife, formerly Sally Carter, widow, and Sally, Mary, Fanny and Landon Carters, infant children of George Carter deceased, by said Cutting their next friend, brought suit in the Superior Court of Chancery, for the Richmond District, in December, 1807, against Landon Carter surviving Executor of the said George Carter, and Fanny Lee and George Carter Executrix and Executor of Thomas Ludmell Lee deceased, who was an Executor of the first named…

THIS was an action of Debt on a Bond, brought by the Appellee against the Appellant. The declaration was in the usual form on a plain bond, saying nothing of any condition. The defendant prayed oyer of the Condition of the Bond; (from which it appeared to be a Bond, for submitting to the Award of certain Arbitrators, mutually chosen, all controversies between the parties ;) and pleaded Conditions performed.

THE Appellee exhibited his Bill on the 29th May 1811, in the Supreme Court of Chancery for the Richmond District, against the Appellants, with Chepmel, La Serre & Co. John Bell, surviving partner of John and William Bell, and Conway and Fortescue Whittle, defendants ; setting forth, that the defendants, Conway and Fortescue Whittle, in payment of a Debt due to the plaintiff, endorsed to him two notes negotiable at the Office of Discount and Deposit of the Rank of Virginia at…

OS the 20th day of October, 1807, Alexander St Clair oí' the town of Staunton executed a Deed to a certain Samuel Clarke, conveying a House and… Held: was not distinguishable from that of any other puisne incumbrancer; although he had purchased from the mortgagor, and the first mortgagee had agreed (a second mortgage, of which Peyton the subsequent purchaser had no notice, having intervened) that he mould convey to him the property so purchased, when his mortgage should be…

<p>1. The President and Directors of the Mutual Assurance Society against tire on Buildings of the State of Virginia are empowered, in calling for quotas to supply a deficiency in its funds, to discriminate between the members, so as to make the requisition from those only, who were insured at the time when fke deficiency jeeurred.</p>

THIS was an action of Tu-spaa:- on the l j It plainly appeared: (Von. ids pleadings in he t-iause, that the right of the defendant to citv; the Mill was tjrliwjn in question. The Jury found a A >■ - tes is: ¡«id JurigmwBas entered accordingly; fromwhi’jn 1 be m. femlani appeaHB> this Court.

Stokm.y Turner, having sued out a, fi.fa. against Nathaniel Jones, put it into the hands of Stone, Sheriff of Halifax, who, by Turner’s direction, levied it on three slaves ; the sale of which being forbidden, Stone demanded an indemnifying bond, which was given accordingly, and returned to the Clerk's office;'whereupon, the Sheriff sold the property to Pointer, “ who bid for and bought the same, with full knowledge of all “ the circumstances of the title of the party who…

AMONG- the minutes of a Court Martial convened by Lieut Colonel Beatty of Frederick County, 31st Regiment Virginia Militia, under authority… Held: as therein directed, “to be composed of Militia Officers only.’ ‘ And although “the statute of 1814, ch. 4., has, for obvious reasons, directed “ that, in the cases contemplated by it, those Courts Martial “ shall be ordered by and composed of officers not in actual “ service, and has designated the number and rank of the offi- “…

<p>1. A Vendor of land, by executing a Conveyance and taking bond and security for the purchase money, discharges the land from his equitable lien / (1) even while it continues the property of the purchaser.</p>

<p>1. Though pri vale Acts of Assembly.. maj be given in evi dence, without being special]} pleaded, they are not to be tallen notice of judicially, by the Court, as public Acts are. but must be exhibited, as documents, if not admitted by con sent of parlies.</p> <p>2. The Trustees of a College, being in corporated, may sue by their corporate title» without setting out their individual names.</p> <p>3. A written agreement for sale of the lands of a Corporation, though not with the common seal affixed, may be enforced in Equity.</p> <p>4. In a written agreement for sale of Land» it was described as a Tract which had escheated to the Commonwealth, and by the Commonwealth had been given to tbp Vendor, who stipulated to make compensation, if a better Title than his should thereafter be established. The tille of the Vendor appearing to he such as described; on a Bill in his behalf for specific performance, the purchaser was not allowed compensation for locating and obtaining a Patent for part of the- Land as waste and unappropriated, but was decreed to release his claim under the Patent, before the Vendor should be compelled to make him a Deed; and a stipulation, conforming: to the agreement, was directed to be inserted in such Deed. See Alexander v. Greenup, 1 Munf. 134 — 149.</p>

THE Appellees filed a Bill of Injunction, in the late High Court of Chancery, against the Appellant and William O. Win-atom, to prevent the sale of certain slaves, on whom an execution, in favour of the said Winston against John Syme, had been levied by the Appellant, as Deputy Sheriff of Hanover County- The ground of equity relied on was, that the plaintiffs were entitled to those slaves, and had held them in possession more than five years, by virtue of Deeds from Syme,…

Robert Bolling, of the County of Dinwiddie, by his last Will, dated January 30lh, 1775, and proved in Court in March 1777, disposed of his property as follows : lu the first place, he directed his just debts and funeral expenses to be expeditiously and honourably paid by his Executors.

THIS was a suit in Equity brought by John Lyons son and devisee of Peter Lyons, deceased, against William Ilundlcy, in the Superior Court of Chancery for the Richmond District, for specific performance of an Agreement between the Hon. Peter Lyons in his life time and the defendant.

IN an action of Ejectment in the Superior Court of Hanover County, in behalf of Walter B. Gilliam, against Anna Moore, the Jury returned a special verdict, finding that John, Gilliam, father of the Lessor of the plaintiff, was in possession of the land in controversy, in the summer of 1784, and continued in possession ’till 1801, ’till he died, having, by his Will, duly recorded, and found in haic verba, devised the same to him ; that Mrs. Gilliam, wife of John Gilliam…

<p>1. The Clerk of this Court being required» by an Act of Assembly enacted since he came into office, to give bond and security for performance of his official duty ; the Court considered it not proper to dispense with, or sanction fcho lion execution of such Bond, or to pronounce any opinion as to the consequences of his failing to do so; but left it to him to execute the same, or not, at his own peril, to be adjudged of, in case of failure, by a Court having competent jurisdiction of the</p> <p>2. Qucsrc, whether the Cleiks of the Chancery DislrictCourts of Richmond, Williamsburg and Staunton, and the Clerks of the Court of Appeals and General Court, were constitutionally hound to give bond and security, for performance of their official duties; being required to do so by an Act of Assembly enaded after they came into office ?■</p>

THIS was an action of Debt, in behalf of the Appellants, on a promissory note negotiable at the Office of Discount and Deposit of the Farmer’s Bank of Virginia, at Petersburg, against Samuel G. Williams the maker, and Burwell Smith the payee and first endorser.

Moore, assignee of J. G. Chalmers and Company brought two actions of Debt, in the Superior Court of Prince George County, against Ritchie and Wales, on two Promissory Notes, executed by them, negotiable and payable at the office of Discount and Deposit of the Bank of Virginia in Petersburg; one dated August 20th, 181], for $500, payable 90 days after date; the other dated August 25th, 1811, for $1000, payable 120 days after date; both which Notes, after they came to…

<p>THE controversy in this case turned upon the question, whether a contract for sale of part of a lot in the city of Richmond, by Graham to Means was so complete, and binding on the parties, that a Court of Equity should enforce it on a Bill for specific performance.</p> <p>The Bill was filed by Daniel Call executor and devisee in trust of Robert Means, deceased, against John Graham, stating that, on the 12th of October, 1803, the defendant, for the sum of 200Z. current money, sold to the said Means a specified part of Lot No. 375, and put him in possession ; that Means paid the purchase money, and commenced building a house on the lot; that, on the 29th day of March, 1808, the said Graham made a farther sale to him of the residue of the same lot; as by an account, signed by the parties respectively, would appear; but the price thereof was not extended in the said account, and therefore the plaintiff was compelled to ask a discovery in relation thereto; that the said Robert Means took possession also . ,, , . . . , of the last mentioned piece ot ground, and, since his death, the plaintiff had paid the taxes on it; but the defendant had not yet made conveyances for the said pieces of land. The prayer of the Bill, was that the same might be sold agreeably to the directions of the Will of the Testator; that Graham might be ordered to convey them to the purchaser or purchasers; and for genera! relief.</p> <p>The defendant by his answer admitted that he was bound to convey, with special warranty, (averring that such was the agreement,) the first mentioned part of the lot; but, as to the last, contended that no contract was made, as no price was agreed on, nor any mode adopted to fix the price; admitting, as appeared by a certificate, signed by Means at the foot of the account, as well as by his own entry therein, dated March 29th, 1808, that he had agreed to let him have it; but alleging, as appeared by the same certificate, that the price was to be thereafter agreed on ; which never was done, in consequence of the death of Means in a short time afterwards. The Respondent had no knowledge, nor did he believe that any possession was ever taken by the Testator, or plaintiff.</p> <p>Chancellor Taylor, was of opinion that, “ notwithstanding “ the price of the last piece or parcel of the land, in the Bill “mentioned, was not fixed in the life time of the plaintiff’s “ Testator, yet the contract might be carried into effect into a “ Court of Equity, since ibe value thereof might be asceriain- “ ed, if not by the agreement of the parties, by the verdict of “ a Jury.” He therefore decreed, “ that the plaintiff do ex- “ pose to sale at public auction, for ready money, the two “ pieces or parcels of land in the Bill mentioned, after giving tc thirty days notice in one or more of the Richmond newspa- “ pers; that the defendant do execute a Deed or Deeds to the “ purchaser or purchasers for the same with general warranty; “ tha t the plaintiff hold the proceeds of the piece or parcel of “ land, on which no price was fixed as aforesaid, in his hands, “ subject to the future order of the Court; and that he make a " report of his proceedings herein.”</p> <p>Afterwards, upou a Report accordingly made and approved by the Chancellor, he farther decreed, that a Jury be empanuelled before the Hustings Court of the City of Richmond, to ascer^a'n what, on the 29th day of March, 1808, was the value of the said piece of lot, No- 375, sold by the defendant to the plaintiff’s Testator on that day; and, it appearing by the Report aforesaid, that the defendant John Graham was the purchaser at the sale of those parts of the lot, the price of which was not extended as before mentioned, and that ihe said Graham was to pay 3700 dollars agreeably to his purchase; and the Jury having by their verdict fixed the value of the same, as of the 29th of March, 1808, at 1250 dollars, which, with interest to the day of sale, amounted to 1646 dollars and 45 cents, leaving a balance due from the defendant to the plaintiff of 2053 dollars, and 55 cents, with interest from the day of sale; the Chancellor farther decreed, that the defendant (who had retained the same in his hands with the consent of the plaintiff) pay to the said plaintiff the said last mentioned sum, with legal interest thereon from the day of sale; and that each party pay the costs of this suit, agreeably to their respective interests in the subject.</p> <p>To this decree the defendant obtained a Writ of Supersedeas from a Judge of this Court; assigning error, that the Court of Chancery ought not to have directed an issue to ascertain the v,alue of the parts of Lot No. 375, nor finally to have decreed in favour of the plaintiff as to the same ; buf should have dismissed the Bill as it related thereto; because no possession was ever delivered thereof to tlie plaintiff’s Testator, and nothing was ever done in execution of the agreement; and the said agreement was too vague, incomplete and uncertain, to warrant a specific performance thereof, as the price was not fixed thereby; and the substitution of a Jury to ascertain it was- a departure from the agreement, by which the parties reserved to themselves the right of agreeing upon the price. The petitioner, too, was advised that no inference unfavourable to him ought to be drawn from the sale, and from his purchasing thereat; because it was, after contesting the case, and a decree deciding the question against him; and because, being himself the purchaser, the parties could be put in statu quo.</p> <p>argued to the same effect, with the petition for the Supersedeas; and cited the following authorities ; Bromley v. Jefferies, 2 Fern. 415 ; Buxton v. JAster, 3 Aik. 386 ,- Mostly v. Firgin, 3 Fesey jr. 184; and Millies v. fíen/, 14 Fesey jr. 407.</p> <p>insisted that the note of the agreement between Graham and Means evidenced a complete agreement, for the sale by the former, and purchase by the latter, for the fair and reasonable ¡nice of the property at the date of the contract. And he likened the case to a sale of property upon a fair valuation, or to the common case of a quantum valebat for goods sold : though the price be not agreed on at the time of delivery, yet there is a sale, and the price will be fixed by a Jury. The case cited last from Fesey jr. is not like the present : that case turned on the circumstance, that the parties had provided a specified mode for fixing the price by arbitrators ; and the Master of the Rolls expressly says, that the case had been different, if the price had been agreed to be fixed by a fair valuation, without providing any particular mode of making it; and that is substantially the present case. The parties certainly meant to conclude a contract for the sale of the property, leaving the price only at large ; and, if so, the price was not to be fixed by the caprice, or pleasure, or iniquity of the vendor, but by his justice; which brings this case within the arbitrium boni viri.</p> <p>The foundation of the argument for the Appellee, is that this is an executed, and not merely an executory contract. Executed, in what way ? By delivery of the possession? The answer denies it, and being in this respect responsive to the Bill, and uncontradicted by evidence, (for there is none in the cause,) is conclusive. There is nothing else, which could be said to be done in execution of the contract, but the conveyance, and payment of the purchase money: and it is not pretended that these acts were done. The claims of the Appellee then rest upon the agreement alone ; and cannot be supported; as it contains a condition that tlie price shall be fixed by the parties themselves, precedent to the further execution of the contract: which condition was not performed, and, in consequence of the death of one of them cannot be performed.</p> <p>The cases of ¡Mines v. Gcry, 14 Vesey jr. 407, (cited by ®r" ^ou^n-) and Blundell v. Bretlargh, 17 Vesey jr. 243, are conclusive authorities, not only that price is an essential part of the contract, but that if the mode, designated by the parties for fixing it, has failed by accident, a Court of Equity cannot substitute any other. If it did, it would execute no agreement “of the parties, but would make one for them. It is said, however, that in ¡Mines v. Gery, there was a specific mode, but here there is none; that the words, “ hereafter to be agreed upon,” mean nothing more than that a fair and just mode should be adopted upon fair and just principles. The admission that there is no mode pointed out for fixing (he price, is an answer to the Appellee’s claim; for, price being essential, if it be not fixed, and no mode be designated, by which it can be fixed, the Court cannot substitute one. But the construction, contended for, is surely not the correct one : the words clearly import that the parties themselves are to fix the price. If not; by whom, and in what manner is it to be fixed ? It is inconceivable that the contract would have been left vague and uncertain in these respects, if any oiher mode, than the one we contend for had been intended. _ If so, this very uncertainty is a bar to the execution.</p> <p>There is no analogy (as supposed by Mr. Wickham,) between this case, and the recovery at law upon a quantum vale-hat for goods sold and delivered. In that case, the contract is executed by the delivery of the goods, and there is an absence of all stipulations as to the price. Here it is executed in no way; and there is a positive stipulation as to price; viz., that it shall be fixed by the párties.</p> <p>It may not be universally true, that a Court of Equity will not decree a specific execution in a case, in which damages at law could not be recovered; but, as a general proposition, it is certainly correct. How then would the Appellee stand in a Court of Law ? There is no form of action, by which he could possibly recover. And the Appellant would be equally without remedy. In proceeding upon the express contract, the same obstacle would prevent a recovery on the part of either, as it would be necessary to aver and prove performance of the. condition, precedent, or that performance was prevented fay the other party; neither of which is pretended. Indebitatus assumpsit for the price, on the part of the Appellant, upon the implication of law, growing out of the execution of the contract, would be out of the question; for it was not executed.</p>

THE Appellee moved the Superior Court of Richmond County, on the 19th of April, 1815, for Judgment against the Appellant as Administrator of William Bragg, who had been the Deputy of her Testator Charles Smith, late Sheriff of Richmond County, for the amount of a Judgment obtained against the said Smith, in his lifetime, by one Benjamin Bran ham, for the default and misconduct of the said Bragg, acting as the Deputy Sheriff of Smith.

A writ of scire facias was issued from the Clerk’s office of Spottsylvania County, directed to the Sheriff thereof, on the 17 th of February 1813, in behalf of John Chilton against ML arty Fitshugh and Henry Lee,jr. as special Bail for Henry Lee, sen'r. The Sheriff's return was, “ The within-named “ MLarty Fitshugh and Henry Lee, jr. are not inhabitants of “ my bailiwick, and are not found within the same.” An alias writ of scire facias was issued, and directed in like…

<p>1. In a suit against the vendee of a slave, if he refer the controversy to arbitration, without being authorized to do so by the vendor who liad bought and sold the dave bona fidet and when he might have cast the plaintiff in the ordinary course of law, he has no remedy in equity against such vendor, in the event of his losing the slave by an award.</p> <p>2. A mortgage being attested by one witness only, and therefore defective; (see 1 R. C. ch. 90, § 1.4. p. 157 ;) yet, if the mortgagee has recovered upon it at law, a Court of Equity will not regard the defect.</p> <p>3. If the mortgagee of a slave recover him in detinue against a person claiming under a bona fide purchaser from the mortgagor; Equity will consider such person, as standing in the place of the mortgagor, and entitled to redeem the slave by paying the debt.</p> <p>4. It will, also, at the same time, (to make an end of the controversy,) give him relief against the mortgagor, who sold the slave with warranty of the title.</p> <p>5. In such case, the right of the derivative purchaser to redeem the slave, and to relief against the mortgagor, who improperly sold him, is not affected by his having submitted to arbitration, the suit brought against him by the mortgagee*</p>

<p>IT appeared from the Record in this case, that Charles Crenshaw, father of the Appellant Nathaniel, purchased, on the 30th of November, 1775, of Joseph Roberts all the lands the said Roberts owned or claimed in the County of Pittsylvania, among which was a tract of one hundred acres, whereof a certain Joseph E. Hailey, afterwards, viz. on the 12th of September, 1789, recovered possession, by the Verdict of a Jury upon a Warrant of forcible Entry and Detainer, against the said purchaser. Roberts, by Deed bearing date the 12th of June, 1776, had warranted the title to the said lands generally, against all persons whatever. The purchase money, due oh the contract, was partly paid; and two bonds on the same account, (he one for 871. 3,s. 6d. and the other for 100Z., payable April 1st, 1777, and April 1st, 1778, remained unpaid¿ which Bonds, by assignment from Roberts; and several intermediate assignments, were transferred to James Smith and Co. British Merchants, and, in their absence from this country during the American Revolution, were lost or mislaid.</p> <p>By the last Will and Testament of Charles Crenshaw, dated the 9th of February, and admitted to probate the 3d of Junes 1790, he devised to his son Nathaniel Crenshaw, the tract of land in Pittsylvania County, on which be then resided, “ with a “ proviso, that he should pay the balance of the Bonds given to “ Joseph Roberts of the said County for lands purchased of him and, upon Nathaniel Crenshaw’s failing to discharge the same, the Testator “ empowered his Executors to sell the said land, “ or so much thereof, as would discharge the said Bonds.”</p> <p>A Bill in Chancery was filed by James Stnith and Co. in the County Court of Pittsylvania, in August, 1803, against the Executors and Devisees; making also Roberts and the other assignors of the Bonds defendants; to set up the Bonds, so lost or mislaid, and obtain a decree for the amount. A cross-bill was exhibited by the Executors, (who were John Crenshaw and Nathaniel Crenshaw,) against James Smith and Co. and Samuel Calland their agent, to be allowed an abatement or discount: for the loss of the said one hundred acres of land. Calland, by his answer, contended that the land recovered by Hailey, was not any part of the land for which the Bonds were given ; alleging that the Testator’s honourable anxiety, to provide by his last Will and Testament sufficient funds to pay off those Bonds, manifested this; that, had it been otherwise, he would not have directed file payment, without insisting on some deduction ; and also that, in addition to the one hundred acres, and Mill, for which the Bonds aforesaid were executed, the Testator acquired of said Roberts an entry or entries, covering a large quantity of adjacent land; and that the land recovered by Hailey was a part of that adjacent land.</p> <p>Both causes were removed from the County Court to the Superior Court of Chancery, by Certiorari, and afterwards heard together, ou the Bills, Answers, Exhibits and Examinalions of Witnesses; on consideration whereof, Chancellor Taylor decreed, in the first suit, that the defendant Nathaniel Crenshaw pay to the plaintiffs the amount of the Bonds in question, with costs; reserving liberty to the plaintiffs to resort to the Court, if.it should be necessary, to subject the ¡and, devised by the Will to the said Nathaniel, to satisfy the same; and dismissed the cross-bill, with costs. From this decree, .Nathaniel Crenshaw appealed.</p>

THE Appellees, suing as children of David Hays, who was one of the residuary legatees of Andrew Hays, deceased, filed their Bill in the Superior Court of Chancery for the Staunton District, against Andrew Hays, Executor of John Hays, who was the acting Executor, and Michael Hays, John Hays, Campbell Hays and James Hays, the other Legatees, of the said Andrew Hays, deceased; for the purpose of recovering the share to which David Hays, their father, was entitled.

UPON Appeals from Decrees of the Superior Court ol Chancery for the Richmond District, dismissing with costs, two Bills exhibited by the Appellant; the object of which was to obtain retribution for the amount of several Judgments, on Bonds, obtained against him, and paid by him, as security for the intestate John Oliver; the prayer of the Bills being, that the administrator should render an account of the personal assets, and satisfy the claims of the plaintiff, as standing,…

<p>1. If the assignee ofamortgage, having ob tained a decree of foreclosure and sale, become himself the high est bidder; but, in consideration ofa sum of money in hand, and a promise of the assignor to pay, in a short time, the balance of the debt, for which the assignment was made, he agree to hold the pro perty as security for said debt, but in trust for the assigno.r $ a Court of Equity will compel him to give up and re-convey the property, upon the assignors paying him the balance due on the bond, with the costs of the foreclosure and sale; deducting therefrom not only the actual prq/Us, he received, while he held the property, but such profits as, but for his wilful default, he might have received, and also the amount of any rvuste or dilapidation^ committed by him, or suffered by his neglect.</p>

UPON an Appeal from a Decree of the Superior Court of Chancery for the Staunton District, in three suits connected with each other, the material circumstances of which may be staled as follows.

THE Appellee having obtained a Judgment, on motion in a summary way, against the Appellant, in the County Court of Hanover for the sum of 42i. 12s. 6d., paid by the former, in the year 1799, as Security for the latter; the Appellant obtained an Injunction from the Superior Court of Chancery, for the Richmond District; alleging, in his Bill, that the Appellee was largely indebted to him on various accounts, particularly as partner in a Mercantile Company; that a balance was…

<p>Philip Claiborne, as Trustee for the benefit of David and James llalliday aud Company, brought an action of Trover against Joseph H. Travis, in the Superior Court of Brunswick County, for the value of a negro man slave named Aaron.</p> <p>.The parties agreed a case, from which it appeared, that a certain John Drummond, jun. being in lawful possession of the slave in the declaration mentioned, conveyed him to the plaintiff by a Deed of Trust, to secure the payment ofa debt to the said D. & J. Holliday and Company, which Deed was duly recorded in the County Court, of Brunswick; that, afterwards, the defendant carried the said slave, as agent for the said Drummond, to some part of the western country, and sold him under a contract to that effect, for a commission of twelve and a half per cent, on the amount of the sale, and paid over the amount to Drummond ; that the plaintiff, the defendant, and the said Drummond, all resided in the County of Brunswick, and D. & J. Halliday and Co, were merchants of the town of Petersburg ; that, the debt to them remained unsatisfied ; that the slave had remained in Drummond’s possession in the said County, from the date of the Deed, ’till the defendant carried him away ; that the defendant, previous to his payment to Drummond, had no notice from the plaintiff, (other than may be inferred from the facts agreed,) of the lien upon the slave in controversy; and that no actual demand of the slave was made previous to the institution of the suit.</p> <p>Upon this case, the Superior Court of Law gave judgment for the plaintiff; whereupon the defendant appealed to this Court.</p>

The controversy in this case turned upon the construction of the Will of Peter Sublett deceased.

<p>IN October 1807, Robert Bolling, thirteen other individuals, and five mercantile companies agreed to build on a Lot of his in Petersburg, (which be sold to the association for the purpose,) an elegant Tavern, to be called the “ Columbian Hotel,” at their joint expence and risk, and for their joint benefit, the cost of the building and out-houses, by a rough estimate, was to be $18,000; that of the Lot was $2000, which Bolling subscribed as his proportion of stock in the firm. The whole sum subscribed was divided into forty shares, of five hundred dollars each, to be held in fee simple by the partners; each of whom subscribed for two shares; except Bolling, who took four shares, as aforesaid. There was a House on the Lot, which he agreed to remove, in order to make way for the Hotel. A written Agreement, or Subscription Paper, to this effect, was signed by them all. Several meetings of the Subscribers took place; a majority decided, and their proceedings were signed by their President and Secretary. At their first meeting, after the agreement, they chose five of the partners Commissioners to commence the execution of the plan. At a subsequent meeting on the 21st September 1808, the Commissioners were directed to proceed to erect the building.</p> <p>Two of those Commissioners, John Bell and Edward Powell, having refused to act; at another meeting, held on the \Sth of April 1810, Thomas Bennett was appointed to act as Commissioner or Trustee, with John Wilder and Robert Bolling ; and they were authorised and directed to erect the Hotel, as soon as possible, according to a plan then approved, and to call on the share-holders for their proportions of the subscription; the expenditures were iu the mean time limited to ten thousand dollars, the residue to be expended when necessary and proper. Those Commissioners proceeded accordingly to perform the trust, and made considerable progress in the work. They suspended their operations during the difficulties occurring in the foreign relations of the United States, (in which suspension Bolling acquiesced,) but resumed them, after those difficulties ceased.</p> <p>Bolling complied with the Contract on his part, by removing the House to make way for the Hotel, and conveying the Lot, in fee simple, by a Deed duly recorded, accompanied with a relinquishment of bis wife’s dower. He afterwards filed his Bill in the Superior Court of Chancery for the Richmond District, setting forth that John Bell, Robert Birchett, Richard F. Taylor, Edward Powell and William Gumming refused to pay their proportions of the subscription ; that William Johnson, executor of William Potts deceased, also refused to pay the subscription of his Testator out of the assets in his hands; that the other subscribers had always been willing to fulfil the Contract, and had partly paid for their shares: praying, therefore, that ail the partners,, who were living, and the legal representatives of those, who were dead, be made defendants to the Bill; and that the unwilling defendants be compelled to perform the Agreement on their part specifically.</p> <p>The joint Answer of John Bell, Robert Birchett, Richard F. Taylor, Edward Powell, and William Gumming admitted the execution of the Subscription paper, and the proceedings at the different meetings of the partners; but denied that they ought to be hound, either by that agreement, or those proceedings: because, they averred their belief, that all the partners having repented of the bargain, in consequence of its becoming disadvantageous by the Embargo, laid by the General Government, the defendant Richard F. Taylor proposed to the plaintiff to rescind the Contract, and accept a reasonable compensation from the subscribers: and that, after having considered it, he declared, before the defendants Birchett and Wilder, that he would take $4000, as a full compensation for the Lot, and all loss and injury, he might sustain, and release the subscribers from the Contract: - that Burchett- assured him they would pay him that sum : that a paper to that effect was drawn and subscribed by the plaintiff, and by the defendants Birchett, Wilder and Bowden, and was to be left at the Bank to be signed by the other partners. The defendant Birchett solemnly declared, that, by that writing, the plaintiff agreed to release the subscribers from the Contract, for $4000 ; that he, Birchett, had not seen it since, and knew not what had become of it: the defendants Bell, Pencell and Taylor had never seen it, though anxious to execute it: “ they call on the 1,1 Appellee to produce it, or to declare its purport if it be des- “ troyed:” and they believed the other Subscribers would have signed it. The defendant Bell acknowledged his activity and zeal at first to promote the scheme, and Ms efforts, after the Embargo, to persuade the other partners to decline it, and to (jay Mr. Bolling for the Lot: that he understood from the defendants Birchett m<l Taylor that Mr. Bolling liad accepted their proposal to take a reasonable compensation and release them. He alleged that he attended their meeting, in 1810, only to withdraw his name. The defendant Birchett denied that the Deed for the Lot was offered to. Mm for acceptance : the other four respondents admitted it was offered, hut that they refused to have any thing to do with it.</p> <p>The Answer of John Wilder admitted the statement in the Bill to be true; that he had paid part, and was ready to pay the balance of his proportion; and that the Hotel was nearly finished. He then gave a different account of what the five unwilling defendants considered a release from the Contract; alleging, that the plaintiff, at his request, agreed that a proposal to pay him $4000, for their release from the Contract, might be made to the other subscribers; and if they should unanimously agree to it, and he should, after such unanimous agreement, approve of it, he would take that sum: that the plaintiff expressly reserved to himself the right of receding from it, notwithstanding their unanimity; and never signed the writing; and that, asoneof the partners refused his assent, the plaintiff, in the'presence of this defendant, destroyed it. The deposition of the sama defendant was also taken, and filed, to the same effect with his answer.</p> <p>Several other defendants filed their Answers, from which it appeared that some of them were willing to carry the agree-meat into fall execution; and others were desirous of being released from it.</p> <p>A deposition proved, that the Deed for the Lot was offered to unwilling deiendants to execute, and they refused.</p> <p>Chancellor Tailor, at February Term 1815, decreed in favour of Boiling; that the surviving parties to the agree-u meat should in ail things execute and perform it, from time “ to time, agreeably to its true intent and meaning; that, if “ the personal representatives of the deceased parties should “ fail to pay their proportions, when requested, the plaintiff, or “ any other person interested, might resort to the Court, for “ an account of the personal assets of the deceased, or for a 1,5 sale of the shares; and that, if any of the living defendants “ should become unable to pay their proportion, when request* s‘ nd. the Court msgnt be resorted to, in like manner, to ea- “ force the agreement; and that the defendants John Bell, Ed-46 ward Powell, Richard F. Taylor, Robert Birchelt and Wit-46 hara üwmúng, by whose conduct this suit was produced, ; pay to the plaintiff the Costs thereof.”</p> <p>The said defendants refused to pay, in execution of the Decree, their respective proportions of the subscription; though a Copy was shewn them, as was proved by Affidavit. The plaintiff thereupon gave them notice, in writing, that he should, on the 10th of June following, move the Chancellor to attach (hem for disobedience.</p> <p>The service of the notice being proved, an Order was made, directing an Attachment to issue against those defendants for refusing to perform the Decree; the Chancellor “ be-45 ing of opinion that there was nothing in the objection, which “ went to the merits of the Decree, as the Agreement thereby “ directed to be specifically performed is not a mercantile “ agreement, and hence should be governed by the general “ law of the land, and not by those rules, which regulate mer44 canille Contracts; that, the objection, for the want of proof 44 to some of the documents in the cause, not having been 64 made at the hearing, comes too late; and that the objection “ to the general terms of the Decree is not well founded, sine* “ no process for the execution thereof can issue without the “ leave of the Court, or of the Judge in vacation, and there- “ fore the Court or the Judge will take care that none shall be “ awarded, but to enforce specifically the agreement for the association of the parties, in the Bill mentioned; and hence “ nothing can be required of any of them but what is required “ by the Agreement, which is too plain to be mistaken.”</p> <p>From this Order, as well as from the Decree, the defendants Birchett, Taylor and Powell appealed.</p> <p>Any of the partners, who chose to withdraw from the association now in question, had the right to do so, and could not be compelled to remain attached to the firm. The rule is that any partner may withdraw, without cause, if the duration of the partnership be not limited ; because, in that case, “ tamdiu societas dural, quamdiu consensus partium integer per several; (a) and for cause, where it is limited ; because unforeseen events excuse performance; (b) and because Equity will decree a dissolution for good cause shewn, (c) and the party may do what Equity would compel. It is true that, if a partner should break off with some sinister view, or at an unseasonable time, which might occasion loss to the partnership, an action may be brought against him at law, in which the remaining partners may be compensated, and damages mitigated according to circumstances.</p> <p>Equity ought not to decree execution of this partnership; because the law can give more just relief, and leave the parties at liberty to pursue other avocations; because the utility of partnerships depends upon unanimity of counsels; which can never be had if the parties disagree; because the parties, or either of them, may determine it, when they please; and therefore Equity, which never decrees a vain thing, leaves them to the law. In this case, too, any partner may demand mrtition ; for the articles do not stipulate that the Tavern is' to be kept. The motives for making the proposed establishment have ceased, and it would be unconscientious to compel performance; for circumstances have changed, and it is no longer an eligible situation. (d) The Decree would be useless; for the insolvency of some of the partners(1) puts it out of the power of the rest to complete the scheme ; and neither is obliged to contribute more than his stock : the Court would not decree for the insolvents ; (a) and the rule ought to be reciprocal.</p> <p>Equity will not permit one party to harrass another. It therefore would have decreed a dissolution upon just terms. (b) which, at most, would have been payment of the difference between the price of the share and the subscription. The conduct of the defendants was perfectly fair; and withdrawing at the time, they wished it, would have been attended with no inconvenience; for the Deed had not passed, and nothing had been done, nor any expence incurred.</p> <p>The Decree too is erroneous in form; because it is uncertain, and decides nothing; for it does not say whether any party has performed, nor whether the plan of twenty or that of ten thousand dollars shall be pursued, nor what quotas have been called for. It ought to have decreed a sale of the shares, and left the defendants liable for the difference only. An Account should have been taken by a Commissioner, to ascertain the sums due. Besides, the uncertainty of the Decree took from the defendants the benefit of the forthcoming Bond and suspension law; for it was impossible to give the Bond and Security, which the law required.</p> <p>The Order directing an Attachment was also erroneous; because, the Decree being uncertain, the defendants were not guilty of contempt; and because the plaintiff, in the notice served on the defendants, demanded interest on the sums remaining due; and the Decree bad not given it.</p> <p>I. 1. The authorities cited by Mr. Call are applicable to cases of general partnerships for an unlimited time; and not to special partnerships for a particular purpose, (c) In this case, the partnership will expire with the completion of the Hotel; and the partners will then become joints tenants of the property. This was conceded in another part of Mr. Calds argument. Even in cases of general partnership, however, no partner can break off with a sinister view, or after the business has been begun.(a) In this case the Appellants have acquired, since the Contract, an interest hostile to the establishment of the Hotel. The business, too. had been begun; for the Appellee, for the purpose of commencing the uew building, had removed from the Lot d House, which was producing him an annual rent.</p> <p>2. A Court of Law cannot give adequate relief. If the Bill be now dismissed, the Act of Limitations would bar a recovery in a Court of Law. But a material object of the Contract was to increase the value of property in that part of the town in which the Appellee is a large land holder. Damages alone would not enable him to effect that object; unless be could recover the whole amount subscribed. Besides, there are some of the other parties, who have the same inte'est, and who might also claim damages. A specific performmce will therefore prevent multiplicity of actions.</p> <p>3. Bolling was not to blame for the delay: it was more injurious to him, than to any other person. He was losing the rent of the Lot, the former House having been removed; and he was losing the Interest of his four shares, which were paid for, while all the rest had paid nothing. It was the fault of the other partners, and principally of the Appellants, who postponed, in order to avoid, the execution of their Contract.</p> <p>4. There is no evidence of the insolvency of any of the partners: and, until there be, the Chancellor ought not to have decreed a sale of any of the shares. Any partner may at any time sel! his share; and they cannot object that the Chancellor did not decree, that they should do what they have a right to do without a Decree.</p> <p>5. Taylor’s proposition, to pay Bolling $4000, and cancel the Contract-, could not be acceded to; there is no proof that it was; and Wilder's Deposition, taken under an order of Court, is expressly contrary. And, if Bolling had been willing, some, of the other parties were not.</p> <p>II. The Decree, for specific performance simply, is right in form. We did not want money merely; but the aid, influence, credit and co-operation of all the partners. The only objection presented to the Court below by the Appellants, was, that there had been a release by Bolling, or that one was to be inferred from the circumstances. The Court presumed from this, that it was only necessary to decide the cause against the defendants, and that they would with good faith perform the Contract. 2 Eq. Cases Abr. 17. is a precedent of a Decree like this. But if there be error in this respect, it is injurious to the Appellee only. He, and not the Appellants, ought to complain that they were not directed also to pay the amount of their shares respectively. If they wished it corrected, they might have had it done oh motion; and therefore it is no reason for appealing. 2 Eq. Ca. Abr. 279. 3 Munf. 29. Sheppard’s Executor v. Starke and wife. pi. 1.</p> <p>III. The Attachment was right: the first Decree was sufficiently certain as to the payment of the $1000, which, without interest, is ail that Mr. Bolling demanded. If the Appellants thought it uncertain, they might have had it explained before the Attachment was directed. If they wished to give a Suspension Bond, they should have tendered one, or offered to do so. Instead of which, all their objections to the Attachment were founded in the original Decree. But this is not a ease in which a Suspension Bond could have been given. The Act of Assembly (Sess. acts 1814 — 15.) speaks of Descrees for Money. This was not a Decree for money merely, but for specific performance; and to allow a Suspension Bond would be to delay or to avoid the performance. The Legislature, when they mean to provide for cases like this, name expressly Attachments for failing to perform Decrees. Hev. co. passim.</p> <p>The reliance of the Appellants on the release is an admission of their prior liability as parties to the agreement; and, by placing their defence on that footing, they waive every objection to the proceedings$ precisely, as at law, the plea of payment admits the execution of the Bond, and that it was given for a fair consideration, without fraud or force.</p> <p>Of this release no proof is produced. And, since if, is inserted affirmatively, in opposition to the plaintiff’s demand, the burthen of proof is on the defendants who allege it. (a) But not only is the release not proved by them, hut if is disproved by the testimony of Wilder. There is no ambiguity, as is pretended, in the decretal order. It directs a specific performance of the agreement in ail things; and the agreement so referred to is too plain to be misunderstood. It plainly means that they should pay, each of them, their two shares ; that is $1000. The Decree is in personam, as all Decrees were before the passage of the Act authorizing decrees inrem: but the power of decreeing in personam still subsists. Id cerium est, quod cerium reddi potest. If they diet not know its meaning, that they were to pay $1000 each, they could have applied to the Court during the Term : they could have obtained the requisite information by motion, (a) This case was opeo for the plaintiff, and consequently equally so for the defendants, if necessary for their interest. They could have obtained an explanation either during that Term, or after-wards : but they wanted none : it is a mere pretext, to evade ’the real merits, and to throw, if possible, the costs on the Appellee. Their subsequent conduct fully proves this. The notice, that a motion would be made to attach them for contempt, was accompanied with the copy of the Decree, and a statement of what they had to pay; the failure to do which was the ground of the motion. If they wanted information only, and were willing to obey the Decree, they could have paid, and shewn that performance in discharge of the motion. The order of the Chancellor to attach them was therefore correct. This principle of attaching for a contempt in not obeying a Decree is too well known to require authority to support it.</p> <p>The execution of tile Decree was under the control of the Court, and could not be abused to the injury of the defendants.</p> <p>But if the agreement were ambiguous, (instead of being plain as it is,) it could nevertheless be decreed to be carried into execution. (b) An agreement to build a House, though uncertain as to the. time, size and value, was decreed to be specifically performed.</p> <p>But, admitting the release to be unsupported, the defendants insist, that this is like an unpromising mercantile speculation, which they ought not to be compelled to join in. There is no similarity between this and such a mercantile projeet; and therefore this case must be governed by the general law of the land.</p> <p>A Court of Equity will decree a specific performance of a Contract or Agreement to enter into a partnership, even though relating to personalty, (a) A fortiori, wilt it enforce such an agreement relating to real estate. (b) Such an agreement ought to be certain, fair and just in all its parts. This undoubtedly is so. There is no doubt as to the intention: it is fair, and for public utility as well, as private emolument; and it is squat, and therefore just. It does not resemble the agreement, in the case of Hercy v. Birch,, 2 Ves. 629, (c) of which the Court refused to decree specific performance, because the parties might dissolve the partnership immediately afterwards. This was a permanent partnership, and no party or number of parties could dissolve it, without the consent of all; for it respected real estate, and was not limited in point of time, (d) The property was to be held in fee simple; and all the partners are tenants in common, (e) In the case of Lake v. Craddock, 3 P. Wms. 158, the Heir and Executor of a delinquent partner was decreed to pay the deficiency of what his father ought to have paid, with interest. If he had not come in, he would have lost what had been advanced.</p> <p>If a general partnership is entered into for an unlimited time, it may be put ati end to at any time by any partner, bid not if he acts mala fide ; or does it with a sinister men, or after some particular business is begun or at an unseasonable time, which might occasion loss or damage to the partnership.” (f) This is the doctrine even in cases of partnerships relating not to real estate: the principle is stronger in cases of permanent partnerships like ibis. In Watson, p. 381., it is said that <! a partnership fora term of years cannot be dissolved by the “ will of one, or of any number of the partners short of the u whole of them a doctrine applying a fortiori to this case in which the partnership is permanent, requiring the possession of real estate in fee simple: it surely, therefore, cannot be terminated without the unanimous consent of all the partners ; at least, until the object is attained by the completion of the building.</p> <p>if the Decree be reversed, the hostile defendants will have the plaintiff’s property, and be rewarded for their violation of a solemn agreement.</p> <p>This Decree is not what it professes, and was doubtless meant to be a Decree for specific performance.A Decree for specific performance ought to ascertain and fix, or provide some method for ascertaining and fixing the precise act to be done, or sum of money to be paid, which, being done or paid, will amount to the performance, the Court means to decree. Otherwise, it must be left to the parties to agree between themselves what act or payment shall be a specific performance; or each party must be left to ascertain that point for himself; in either of which cases, the Decree would leave the parties and the controversy exactly in the same state, it found them : or it must be left to one of the parties to ascertain (he act or payment to be done or made by the other as a specific performance; which would be in effect a substitution of that party in the place of the Chancellor; and such is the character and effect of the Decree in this case. It is so general, and on that so uncertain, that the defendants could not know from the Decree itself what payments they were to make, or what act to do, in order to perform it.</p> <p>The Decree directs that the defendants “ shall in all things “ execute and perform their agreement, from time to time, ac- “ cording to its true intent and meaning.” But what was its true intent and meaning, and what should be done to fulfil it, were the very questions litigated between ¡be parties. Mr. Bolling's own notice to the defendants, requiring performance of the Decree on their part, is a direct admission of the uncertainty of the Decree itself; for that notice proceeds to point out (what the Decree omits) what the defendants should pay, in order to perform the Decree : but, if he was competent to do this, he is in effect the Chancellor, who decides the cause. By the arrangements between the parties, the money was to be paid in qnoiqts, as called for; but the suit was instituted before all had been so called for ; and it no where appears how much was due on the requisitions, that had been made at the time of the rendition of the Decree; consequently, it is not ascertained by the Decree what precise sum ought to be paid as a specific performance; the whole or part. Of the consenting partners, Harwood, Wildes' and Walker say they have paid only part of the whole amount of their subscription : William asid Henry llaxall say they have paid $540; and Holloway’s Administrator says Ms Intestate paid $450, only. Yet Bolling requires the refractory parties to pay the whole $1000, on their subscriptions, with interest; and the Chancellor attaches them for not complying with this requisition, without any evidence that the consenting partners had paid the like sum, but Bolling’s own statement to that effect. It is said this objection to the Decree was not made in the Court of Chancery: but it is unimportant whether it was there made, or not; and, besides, it plainly appears, from the Chancellor’s Order, awarding the Attachment, that the objection was distinctly made. In the case of Alien v. Harding, cited from 2 Eg. Cases abr. 17, the Decree did provide a method for ascertaining precisely the act to be done, as the specific performance of .the Contract.</p> <p>Upon the merits. This association was without doubt a partnership ; for, although partnerships are most commonly of the mercantile kind, yet, to constitute a partnership, it is not necessary that the object of the association should be to carry on trade. “ Contractus societatis est, quo duo pluresve inter se “ pecimiam,res ml operas conferunt. eo fine ut quod inde redit lu- “ cri inter singulos pro rata dividaturPuf. lib. 5. e. 8.: which Mr. Watson translates, “ the relation of persons agree- “ ing to join stock or labour, and divide the profits.” Wats. p. 1. This association was precisely an unincorporated company of partners, such as is described in Wats. p. 3.</p> <p>I do not say that the agreement was not binding on the parties ; I admit it was binding. I do not insist that the complaining parties ought to have been turned over to their remedy at Law; I admit their case was a proper on® for relief in Equity. The parties should not have been driven to their legal remedy; because it is doubtful whether a Court of Law could entertain an action for one partner against another; ant! because, at all events, the case was proper for a Court of Chancery, to avoid multiplicity of actions at Law. The single question for the Chancellor to decide was, whether he should decree a specific performance ? or decree compensation to the complaining partners against the refractory partners, ascertaining such compensation by an issue of quantum damnifica* tus ? 1 insist that the latter was the proper, and the only proper, course.</p> <p>A specific performance was not the proper relief. The constant doctrine of the Courf is, that it is in its discretion, whether, in such a Bill, it will decree a specific performance, (a) ¡f js frue that Ld. Hardwicice said in Buxton v. Liston, 3 Atk. 383, that specific performance of articles of co-partnership ought to be decreed ; but that was an extra-judicial dictum, and that doctrine is expressly over-ruled, and justly exploded, in Heresy v. Birch, 2 Veseyjr. 629, where Lord Eldon says, “ no “ one ever heard of (his Court executing an agreement for a “ partnership, when the parties might dissolve it immediately “ afterwards.” The reason is obvious : it cannot be for the interest of any of the members of an association to be bound in a partnership with others, whose views, interests, wishes and feelings are hostile and conflicting. So, in the present case, what could be more absurd than to bind Bell in this partnership, when he had ceased to have any. interest in promoting its prosperity, and had become very hostile ; or Powell, who had a direct interest to disappoint the company from all profit from their Tavern; or Birchett, Taylor, Ctamning, the representative of Potts, and Walker, who had ail become averse to the farther prosecution of the project, for the reasons, they have assigned, and would therefore throw every obstacle i» the way for the execution of it ?</p> <p>Again, specific performance ought not to be decreed ; because the parties had themselves suspended the execution of their plan so long, (nearly three years,) lhat it might well have happened, in the interim, that it would be inconvenient and disadvantageous to some of the partners to go on with the scheme at so late a period. The Bill says a majority wished the suspension, and Bolling acquiesced in it, to his own injury and that of (he Company. It does not appear, but that the now refractory partners were in that minority, opposed to that injurious suspension, and the now consenting partners in that majority, which insisfed on the suspension. Bell certainly was in the minority on that occasion, for he is described in the Bill, as being the most zealous and active of them all at first. and not to have become hostile ’till 1810. Suppose this were the true state of facts. Shall a specific performance be decreed, in behalf of those, who were opposed to it during s lapse of almost three years, against those, who were anxious at first for a prompt and immediate execution of the plan, (a)</p> <p>In truth, only the plaintiff Bolling and (he defendant liar wood are now desirous of a specific performance : of the rest some say only that (hey are willing to perform, though quite indifferent about it; and six others say they are averse tc going on with the scheme. Now, surely, in a partnership like this, a majority might dissolve the company. Shall it be continued at the instance of a minority of two?</p> <p>The refractory partners broke off before any material pari of the work had been done ; so that little or no injury could have resulted to the rest from the abandonment of the plan by them. They broke off before Bolling had executed the Deed; as is proved by the plaintiff’s own witness Hawkes; they broke off before the only efficient general meeting was held, that of April 1810; in short, before any thing had been done, except the removal of an old bouse by Bolling.</p> <p>In every view, therefore, specific performance was not the proper relief; either on general principles, or on the particular circumstances of the case.</p> <p>The remedy was plain; to decree compensation to those of the consenting partners, who bad sustained injury by the refusal of the res! to abide by their agreement: and the mode of ascertaining the compensation was equally obvious, an issue of quantum dammfvaius. Bolling liad suffered an injury from the removal of his house, and the loss of the rents. The difference between the value of the house as it stood, and the value of the materials, after it was taken down, added to the rents he lost, was the precise amount of the-damage, he sustained ; and nothing could be more easily adjusted. As to the others, it is difficult to see how they suffered any injury, which could not be redressed by a release to the company of the shares of the refractory partners.</p>

THE controversy in this case arose upon the construction of the Wih's of Richmond Alien and William Allen of New-Kent County. It appeared that Richmond Allen and William Allen, being brothers, each made his Will in the month of July, 1807.

<p>THE Appellees, in August,-1815, filed their Bill, in the Superior Court of Chancery for the Fredericksburg District, against the Appellant and Robert Garnett; stating, that Henry Garnett, Testator of the Appellant, departed this life about August, 1811, having by his Will devised as follows: “After “ my debts being paid, that all my slaves, work creatures, plan- “ tation utensils, and provisions sufficient for their support “ annually, be furnished for three years, from my estate, to “ raise the sum of five hundred pounds for Nancy and Austin “ Garnett, children of Austin Garnett, (two of the Appellees,) “ and also five hundred pounds to be equally divided between “ the children of Robert Garnett, (the other Appellees :) after “ that sum being raised by working the plantation called Far- “ mer’s Hall, I then devise the said plantation, one half to “ Robert Garnett, (one of the defendants,) and the other half to “ Nancy and Austin Garnett," (the legatees before mentioned:) that, by the said Will, several persons were named Executors thereof, with a direction that no security should be required of them; and, by a Codicil, the Appellant Thomas Matthews was also named an Executor: that the Executors named in the body of the Will refused to qualify, and the said Matthews alone took probate thereof, and was permitted by Essex County Court to qualify -without security; that he as Executor possessed himself immediately of all the real and personal estate of the Testator, claiming lo hold the real estate, and especially the plantation called “ Farmer’s Bali”in virtue of the clause aforesaid: that he hath sold off the perishable estate of considerable value, and had ever since retained all the real estate, negroes, &c. and received all their profits: that the three years mentioned in said clause had elapsed, and that much more than a sum sufficient to pay the said legacies, had been raised by working the said plantation called Farmer’s Hall; that, though this was the case, the Appellant had not paid any part of the legacies, and, though frequently required to surrender the said plantation to the devisees, in order that partition might be made, he still retained the possession of it: that the Appellants had misapplied the profits of the real and proceeds of the personal estate; that he had little or no estate, and was unable to reimburse the sums, so misapplied, to the parties entitled thereto.</p> <p>The prayer of the Bill was, that the Appellant might be restrained from receiving the future profits of the estate, unless he gave ample security for the faithful application of them; that he might be compelled to surrender the estate called Farmer’s Hall, in order that partition thereof might be made, according to the direction of the Will, between the plaintiffs Austin and Nancy, and the defendant Robert Garnett; that, ho might render an account of the profits (hereof, and be decreed to pay the plaintiffs their respective legacies aforesaid, with interest from the. time they ought to have been paid; and for general relief.</p> <p>To this Bill, the Appellant filed his answer, admitting most ef the allegations, but controverting the construction of the Will contended for by the plaintiffs; stating that he had been advised that the proper construction thereof was, not that the plantation should be worked, &c. for three years after the Testator’s death, but for and during three years after the Testator's debts were jaid; and, as the debts had not been paid, the defendant had continued the cultivation of the estate; denying that he had been able to raise a fund sufficient to pay the debts and legacies ; and alleging that, in consequence of the Embargo and the War, but little profit had been made from the estate.</p> <p>The plaintiffs replied generally to this answer. The Bill was taken for confessed as to the defendant Robert Garnett.</p> <p>In the Will of the Testator, (which was made an Exhibit in the cause) there was a provision that Hannah S. Neale should “ have liberty to live in the mansion house, to have “ full use of all the land, houses, &c. from the cross fence, rune‘ ning from Lydia Brook's to the White Oak Swamp, during “ the term of three years; that, (after raising the legacies to “ the plaintiffs,) Alaria, Washington, and Fenton Mariner, a son. “ and daughters of Anne Mariner, should have, in young ne- “ groes, to the amount of five hundred pounds, &c.; that, if, “from his personal estate, more, money was raised than would “ discharge Ms debts, it be laid out in lands or young negroes. as might be judged best by his Executors, for the interest of his legatees, &c.; that Hannah S. Neale be furnished with a sufficient quantity of stock for her use, and the use of her family; that every necessary be furnished her by his Executors, so that she might never want, and that whatever timber she might want, and firewood, be furnished her from the rest of his lands.” “ ,, t</p> <p>An account of the Appellant’s Executorship, made out by Commissioners, appointed by the County Court of Essex since the institution of the suit, and approved by that Court, was also exhibited; according to which, it appeared that the Appellant had sold produce from the estate to the amount of upwards of 2000Z. which he claimed to have disbursed in the payment of debts, and some legacies, particularly that to the Mariners ; and a balance of 339Z. 15s. 3d. appeared to be due from the estate to him.</p> <p>Sundry affidavits were read, on the hearing, without exception. The principal facts proved, were that the Appellant had very little property; that Farmer’s Hall was a valuable and productive estate; the smallest estimate of its annual product being 500 barrels of corn, and 700 bushels of wheat; and that the Testator had a large personal estate, there being fifteen crop hands, &c.</p> <p>Chancellor Nelson decreed, that the Appellant should, after the 1st of January, 1817, surrender the estate called Farmer’s Hall, to certain Commissioners, for the purpose of partitioning the same between the plaintiffs Nancy and Austin, and the defendant Robert Garnett, according to the directions of the Will; that he should pay to the plaintiffs the legacies, that by the Will were to be raised by working the said estate called Farmer’s Hall, with interest thereon from the date of the decree ; ‘ it being manifest from the account he exhibited, that “ more than the amount of those legacies had been so raised that a Commissioner should take an account of the monies so raised, for the purpose of ascertaining the time, when the amount of them reached to 1000Z. and inquire what was a reasonable rent of the said estate, since the said sum was so raised; reserving to the plaintiffs the liberty of applying for a decree, (when the account should be reported,) for an equivalent for the interest on their respective legacies, from the time they should be thereby shewn to have been raised, to the time from which interest was by the decree given thereon.</p> <p>From this Decree an appeal was allowed by this Court, on petition of the Appellant; in which petition, the decree was alleged to be erroneous, for the following reasons :</p> <p>1st, Because, by the terms of the Will, the lands, slaves, &c. were to be worked three years after the debts were paid; plainly importing that the debts were first to be paid,</p> <p>2d, Because, even if the Will admitted of a different construction, the slaves, stock, &c. were assets in the hands of the Executor, for the payment of the Testator’s debts, and their profiis ought by law to be applied to the discharge of debts, even contrary to the intention of the Testator, if he had intended to prefer his legatees to his creditors.</p> <p>3d, Because, if these profits had been improperly applied to the payment of debts; yet, as those debts were all of them chargeable on the personal estate, and many of them chargeable on the real, the Executor, being defendant in Equity, was entitled to stand in the place of the creditors, whose claims he had satisfied.</p> <p>4th, Because it was evident that the Executor acted for the benefit of ail parties, by keeping the estate together, instead of selling the personal property, as he ought to have done, for the payment of debts, in which event there would have been no fund for the legacies claimed by the plaintiffs.</p> <p>5th, Because, on the principles contended for by the plaintiffs, no decree for the payment of any sum of money, or for delivery of possession of the land ought to have been rendered, until an account was taken of the Executorship, that it might appear how much of the mixed fund, consisting of the profits of the lands, slaves, &c. was to be credited to the lands ; how much to the slaves and other personal estate ; and what fund there was for the payment of the other legacies.</p> <p>The Petitioner also submitted a question, whether the other legatees, who were concerned in interest, ought not to have been parties.</p> <p>argued in support of these positions ; and, in discussing the third point, referred to Eppes v. Randolph, 2 Call, 125. — 190 TinJey v. Anderson, 3 Call 329 — • 333; and Foster and Wife v. Crenshaw’s Executory 3 Mitnf. 514 — 521.</p> <p>insisted, 1st, That by the Will, there was only an implied charge on the estate called Farmer’s Hall, for the* payment of debts ; a charge, which operated on the land in the hands of the devisees, in the event, that the per-, sonal estate proved inadequate to the payment of debts, but did not put the said estate into the hands of the Executor, that its profits might be applied to exonerate the personal estate front the payment of debts.(a)</p> <p>2d. The Appellant was not entitled under the Will to hold the estate called Farmer’s Hall for any purpose; (unless to take the crop growing at the death of the Testator;) the effect of the Will, on a sound construction of it, being to charge the land, in the hands of the devisees, with the I000Z. to be raised from it, with the assistance of such of his negroes, work creatures, &c. and previsions for their support, as, after the payment of debts, could be furnished for that purpose.</p> <p>3d. If the Executor had, under the Will, any interest in or control over the said estate, it .was limited to the object of raising the 1000Z. for the legacies, and to the time of three years for the attainment of that object.</p> <p>4th. Even if the Executor could hold the estate longer, than three years, to raise the 1000Z. yet it was competent to the Court of Chancery, without the interposition of an account before a Commissioner, to inquire into and ascertain the fact whether it had been raised; and, as the account lie exhibited, shewed, manifestly, and on its face, that a much larger amount, than that sum, had been raised, it was proper for the Court, this fact being so ascertained, to decree as well payment of the legacies, as the surrender of the land; especially under the circumstances that the Executor was of very limited responsibility, and the account and evidence shewed many acts of mal-ad mi nis t ration „</p> <p>5th. As to parties, it appears from Coop. Eq. p. 39, that all the Legatees need not be parties, except where a residuum is to be divided.(1)</p>

ON the 27th of October, .803, upon a contemplated intermarriage between the Appellee and Mrs. Felicia Chilton, the widow of Orrick Chilton deceased, who was possessed of a considerable persona! estate, and had then living two children by her first husband ; a Deed of Trust was executed by the said parties, reciting an agreement between them, “ that John Chilton, (the Appellee) should, after the said intended mar“riage, receive and enjoy, during the joint lives of them the…

<p>THE Appellee Wilson C. Nicholas, by a Covenant under seal agreed with the Appellant as follows: “For the hire oí' il four Negro fellows the present year, who are lobe returned well il ¿loathed on or before the 25th of December, I promise to pay “ Frederick Harris at that time the sum of two hundred and “ eighty dollars; witness my hand and seal the Oth of Jauua* s‘ ry, 1812.”</p> <p>On this Covenant Harris brought his action, and for breach alleged, “ that one of the said negro fellows, to wit, one “ named Joe, alias Roger, was not returned, well clcathed, on “ or before the 25th day of December next ensuing the date “ of the said Covenant, nor at any time since; and also that if the defendant did not return the said negro fellow on or belf fore the said 25th of December, nor at any time since.”</p> <p>The defendant pleaded, “ that, after the date of the Cove» 5‘nant, and before the 25tb day of December next ensuing “ the said slave Joe departed (his life;” and for farther plea, that, “ after the date of the said Covenant, and before the “ 25th day of December in the same year, to wit, on the “ day of 1812, the said slave Joe, in the declaration men- “ tioned, without the fault, agency, privity or consent of the <l defendant, and by an event, over which the said defendant “ had no control, to wit, by a mortal wound received from a « certain Thomas Thilman, died, so that the said slave could “ not be returned to the plaintiff on the said 25th of Decern» her, 1812; and this he is ready to verify, wherefore he prays “ Judgment, &c.”</p> <p>To the first plea, the piaintiff replied, “ that after the day {t of the date of the Covenant, to wit, on at the County of Albemarle, and before the 25th of December 1812, s‘ the defendant delivered the negro fellow Joe, alias Roger, “ in the Declaration and Plea mentioned, into the possession ,s of a certain John Patterson, to labour upon his plantation; on whose plantation the said negro continued to work, with the defendant’s knowledge and consent, as one of the labouring “ hands of the said John Patterson until a certain Thomas “ Thilman, on the day of at the County aforeu said, who was then and there acting as the Overseer of the said John Patterson, and in his employment, and whilst su- “ perintending and managing the labouring hands of the said “ John Patterson engaged upon the Farm in doing bis work, and ‘Cwhilst managing and superintending the said slave Joe alias Roger, who was then and there, with the knowledge and “ consent of the defendant, working upon the Farm and doing i! the business of the said John Patterson, under the care and superintendaace of the said Thomas Thilman, so unlawfully, “ cruelly, and excessively heat and whipped the said slave Joe alias Roger, that, by reason of such unrawful, cruel and ex- “ cessive beating and whipping the said slave afterwards died u at the time in the defendants’ plea set forth ; and this he is tc ready to verify,” &c. To this replication the defendant de mured generally; and joinder in demurrer.</p> <p>The plaintiff replied to the second plea, “ that the «aid '* Thomas Thihnan in the said defendant’s second plea men- “ tinned, and who it is alleged inflicted the said mortal wound “ noon the said negro Joe alias Roger in the Declaration and “ Plea mentioned, was, at the time, when it is alleged in and by “ the said Plea that the said mortal wound was inflicted, the s< Overseer and Manager of a certain John Patterson, to whose “ possession and custody the said defendant had delivered the “ said negro Joe alias Roger, to be used and employed by him “ the said John Patterson on his, the said John Patterson’s, estate, and who then and there, with the knowledge and con* “ sent of the said defendant, placed the said negro Joe, alias “ Roger, under the management and superintendance of the “ said Tatemas Thihnan, as his, the said John Patterson’s Over- “ seer; and, whilst so acting, as Overseer as aforesaid, he the “ said Thomas Thilman, so, unlawfully, inhumanly and with- “ out any justifiable cause, beat and whipped the said negro “ Joe alias Roger, that he died ; and so the said death was by “ the default of the defendant, and therefore is no sufficient “ excuse to the said defendant for not performing his said Co- “ venant; and this he is ready to verify,” &c.</p> <p>To this Replication the defendant rejoined, “ that the slave “ Joe, in the said Plea and Replication mentioned, was hired f! from the plaintiff by the defendant, for the use and benefit “ of the said John Patterson, in the Replication mentioned, to “ he employed and used by the said John Patterson in labour* " ins upon the plantation of him, the said Patterson, under the superiuteiidance, management and sole direction of him “ the said John Patterson, his lawful Agents and Overseers; “ of which fact, the said plaintiff at the time of the hiring afora, “ said, had due notice, and to which he fully assented; and that <s the said slave Joe, afterwards, to wit, on the day of “ January in the said year 1812, being so hired, was, with the *'■ consent and knowledge of him, the said plaintiff’, and in pur* “ suance of the terms, on which he had been hired as aforc- “ said, delivered by the defendant to the said John Patterson ,s to be employed in labouring on the plantation aforesaid of “ the said Patterson, over which plantation, and over (he 61 hands labouring thereon, the defendant had no control, and :c in which he had no interest; after which said time of deli “ very of the said slave to the said Patterson, the defendant “ had no control over the said slave, and no interest in the la- “ hour or profits thereof: and that the said Thomas Thihnan “ in the said Replication mentioned, at the lime of the deli- “ very of said slave to the said Patterson, was not the Over- “ seer or Agent, or otherwise in the employment of the said “ Patterson, but afterwards, to wit, on the day of “ in the year aforesaid, before the giving of the mortal wound “ in the Replication aforesaid mentioned, and without the “ agency, privity or consent of the defendant, was employed “ by the said Patterson, and placed as Overseer on his planta- “ tion aforesaid, and entrusted, as Overseer, with the control “ and management of the said slave as one of the labouring “ hands on the plantation aforesaid; and this he is ready to “ verify; wherefore he prays Judgment,” &c.</p> <p>The plaintiff demurred generally to this Rejoinder; and the defendant filed a joinder in demurrer.</p> <p>The Superior Court of Law sustained the defendant’s demurrer to the plaintiff’s Replication to the first Plea, and over-ruled the plaintiff’s demurrer to the defendant’s Rejoinder. Judgment was therefore entered for the defendant, from which the plaintiff appealed to this Court.</p> <p>I can find no case shewing that a Contract is merged in a felony; though a trespass is. (a) The felony, committed by Thilman, therefore, did not excuse. Nicholas from the obliga I ion foreturn the Negro according to his Covenant. But, indeed, the question of felony did not properly arise in the case; for the killing of the Slave is not charged in the pleadings, as having been done feloniously.</p> <p>This is an action of Covenant on a Bond for the hire of a Slave, who was to be returned at the end of the year well cloathed. The first question is whether, in fact, there is in the Bond any Covenant for the return of the slave ? Upon inspecting that instrument, we find in it merely a recital of the lime when the negro was to be returned. It certainly is not an express Covenant. There was no necessity of such Covenant; for, when the term of service expired, the Law itself raised the obligation to return. Detinue or trover would then Jie for the Slave or his value. The Court therefore will not raise an implied Covenant.</p> <p>But if there was a Covenant, it ceased to bind, upon the death of the Slave.</p> <p>Is Wilson C. Nicholas liable for the deaih of this Slave, in any form of action ? The person, who killed, him was not Ms Agent; ami if he were, it was not such an act as the principle was liable for. (a) It does not appear that, when the beating was inflicted, it was in the line of the Overseer’s authority. He was not controlling the Slave as an Overseer, but treating him as a Murderer. The beating is stated to have been severe and inhuman, and the cause of his death, if public policy requires ihe Master to be responsible for the acts of the Overseer, why not rn ske him responsible criminaliter, as well as civiliter? But public policy is not to make our laws in this Court, but elsewhere.</p> <p>Covenant would not lie in this case, even if the Overseer had acted by his employer’s direction. No hirer of a Negro understands himself, as bound to deliver him at all events. In this case the Covenant is not, that the Slave shall be returned, but that he shall be well cloathed when returned.</p> <p>It is a rule, in the construction of Covenants, that words, forming one, cannot be split into two distinct and independent Covenants. (b)</p> <p>If there had been a Covenant, to restore the negro in good health, the Covenantor would have been an Insurer: but this is not such a Covenant. Even if the Negro runs away without the fault of the hirer, he is not bound to deliver him at the time appointed.</p> <p>In language of law no authority can be given to do an unlawful act. The person, who directs it to be done, is a principal in treason or trespass, and in other cases an accessary before the fact. If an Employer had continued in his service an Overseer, noted for cruelty, I am not prepared to say that he might not have been made liable by a proper form of action. But that question has no application to the present case. Harris knew that the Negro was to go into the hands of Patterson, and Nicholas had nothing to do with the choice of the Overseer.</p> <p>But if Thilman had been the Overseer of Nicholas, and employed by him. Nicholas would not have been responsible; for the act committed was not only out of the limits of an Overseer’s authority, but contrary to it; and for such acts of a servant, the master is not liable, (a) The Overseer, whenever be steps out of the limits of his authority, becomes as a stranger. There can be no question, that the act, described in the pleadings, was a felony, though the word “feloniously” is not used; for felony may be inferred from facts found in a special verdict; (b) and the facts pleaded bring it within the definition of murder in the first degree, 2 R. C. p. 15.</p> <p>There is, I insist, an express Covenant to return the negro at the end of the year.</p> <p>The distinction between express and implied Covenants is laid down in 2 Selwyn's, N. P. 384; from which it appear® that this is an express Covenant; (c) for there is no need of the word Covenant, nor of any particular form of words, to constbute a Covenant in deed ; but any thing, under the hand and seal of the parties, importing an agreement, is sufficient liad the instrument been signed by Harris, it would, according to the case of Pordage v. Cole, have amounted to a Covenant on bis part that Nicholas should have the service of the slave during the year. But the words used are the words of Wilson C. Nicholas; and, if there were a doubt of their import, must be taken most strongly against him. Unless intended to create a Covenant, the words are useless.</p> <p>It is said that the Covenant was not to return the Slave, but only that, when returned, he should be well cloathed. To this I answer that the time of the return is expressly specified: the Slaves were to be returned, well cloathed, on or before the 25th of December ensuing. This argument, that the Covenant applies to the cloatMng only, is a legal curiosity. It is that, although the defendant has not delivered the negro at all, there is no breach; but if he had delivered him, not well cloathed, there would have been a breach ; that is, there could be no breach until he delivered him not well cloathed,,</p> <p>It is contended that this is a mere recital. Of what is it a iecital ? A recital is always of something extrinsic. But if it were a recital, it is not the less a foundation of Covenant, (a) Mr. Wickham says there cannot be two Covenants in one, or that you cannot make two breaches out of the same Covenant : but a Covenant to pay rent, and leave the premises in repair, is a familiar example of a two fold Covenant, as to which there might be a breach, of the whole, or of either part. Go, here, the Covenant was broken by failing to return the negro at all, or by returning him not well cloathed.</p> <p>That it is a Covenant is admitted by the defendant’s pleas, and therefore he is estopped to deny it. If it be a Covenant, and an express Covenant, the failure to perform it cannot be excused but by the act of God. (b) His own act, disabling him from performing, is no excuse, (c)</p> <p>Hiring is one species of bailment, if the property be destroyed by the misconduct of the person, to whom it is hired, or of his servant, the master is liable, (d) Overseers and servants are considered, as acting under the master’s direction, express or implied, whenever their acts are done within the line of the business, they are employed in. Nicholas by transferring the slave to Patterson made himself responsible for the consequences. Harris, though he knew the Slave was to go into Patterson's service, yet took Nicholas's Bond for the return of the Negro.</p> <p>In the cases cited on the other side, I believe it will be found, the decisions turned on the form of the action; not on the substantial liability of the master. But our suit is not to make Nicholas answerable for the trespass committed by Tlálman, but upon his express Covenant.</p>

AFTER the affirmance, by this Court, (see 3 Munf. 578,) of Chancellor Wythes’s interlocutory Decree, in the suit of Bland and others v. Baird and others, by which Baird was directed to deliver to the plaintiffs the slave Will, first named in the Bill, and account for his profits; the cause being rem-mded to the Superior Court of Chancery for the Richmond District, an Account was taken, by a Commissioner, of the profits of the slave Will, and reported to the Court; to which,…

<p>3. If, pending ,a suit, the par-tie?, by an Order oiCourl,refer the matter in controversy to arbitrators, who«e award is to be made the Judgment of the Court; and, afwards, by an agreement under seal, appoint a suhstituteiov one of them; agreeing that an award,to be uu.de by the remaining reft rees and such substitute, shall be entered as the Judgment ofiheCouri; such award m-y beso entered, without any previous Order of Court confirming the appointment of Riicit substitute.</p> <p>2. A. Court’s refusal to enter a Judgment according to an award, without proceeding to determine the controversy, is not a Judgment, from which an Appeal can be taken.</p>

'■ THIS was an action of debt upon a Bond, dated July 3d, l 1789, for 150?. 9s. 9d. to be discharged by the payment of ’ 761. 4s. 10\d. on demand. The Writ was issued on the 24th day of March, 1806, returnable to the District Court of Fredericksburg. The damages stated in the Writ were 20?. The declaration was in the usual form, but leaving the damages blank.

<p>1. A stipulation, in a Bond or Deed ofTrust that, upon the debtor’s failing at any time, to pay the annual interest,the principal sum (which otherwise would not be payable until a distant day,) shall be considered due, is in the nature of a penalty, against which it is the province of a Court of Equity to relieve.</p> <p>2. In suck case, the payment or tender of the interest at any time before the sale under the Deed of Trust, authorises the d drtor .o ¡nri upon the Court of Chaucery to prevent the sale. And, by virtue of the Vet of Assembly concerning Executions, passed Nor. 25th, 1814, the debtor wa? authorised ie> substitute Bond and security in lieu of payment</p>

<p>UPON an Appeal from a Decree sof the Superior Court of , ,, ' , _ ’ . , , . , Chancery, hoiden at Sfaunton, in a suit brought against the Appellant Cumberland D, Williams and others, by James Price.</p> <p>The Bill stated that, in the year 1803, a certain Englchard Yeiser of Baltimore, having purchased very valuable and extensive real property in Augusta County, Virginia, at the price of $16,000, a contract was entered into between said Yeiser, a certain Joseph Williams, and the complainant, whereby said Yeiser sold to each of them one fourth of said real property ; and it was agreed that the parties to the said agreement, which was dated the 6th of August, 1803, should erect and conduct in partnership, on said real property, a furnace for iron works, on the terms specified in said agreement: that the parties accordingly engaged in the enterprise of said iron works ; the plaintiff expended large sums in erecting the Furnace, now called Mount Torry Furnace, on said property, in making other improvements thereon, and preparations therefor: that Joseph Williams sold his one fourth of the property to C. D. Williams, of Baltimore; and that the business was carried on, under this new firm, under the agreement aforesaid, until the 9th of January, 1806, when a new agreement to regulate the conducting of the iron works was entered into 5 under which last, the business was carried on until the plaintiff parted with his interest therein : that the plaintiff and C, J). Williams became jointly interested in certain other property in Augusta County, on which is' Belvedere Forge, which they conducted in partnership until the 29th of November, 1806, when the plaintiff sold his moiety to said Williams: the Furnace was carried on by the partnership last mentioned, until the 13th of March, 1807, when the plaintiff sold his one fourth thereof to C. D. Williams.</p> <p>The Bill then stated the substance of the agreement of M^rch 13th, 1807. C. D. Williams bought of Price his one fourth of the Furnace and its appurtenances, and all the servan is, stock, horses, waggons, coal, iron and other things bekinging to said Furnace, or to Belvedere Forge; and all debts due to the Furnace or Forge, and the benefit of all contracts with either of them. C. D. W. stipulated to pay to James Pries $23,000, out of which were to be deducted certain debts to be assumed and paid by the former for the latter: the balance of the $23,000 to be paid by instalments; C. D. W. to pay the plaintiff’s proportion of the debts duo from the Furnace and Forge. The plaintiff agreed that Yeiser’s representatives (he being dead) should convey the Furnace property to Trustees, to be by them re-conveyed to C. IJ. W. who should then convey it: in trust to secure the performance of the agreement on his part. It was farther stipulated, that the' “ property so to he conveyed lo C. D. W. as aforesaid, should be 61 the only security for Ms performance of said agreement; it 5S being expressly agreed and understood by and between the “ parties, that neither the said C. D. W., his Heirs, Executors, “ Administrators, estate or effects should, at any time there- “ after, be answerable, or In any manner liable for the pay- “ meats aforesaid, or for the performance of any Covenant or M Agreement therein, farther than the said property, so as “ aforesaid to be conveyed to him, would extend to discharge u and satisfy the same.”</p> <p>The Bill farther stated that, in pursuance of this agreement, C. n. Williams entered into the immediate possession and enjoyment of all the property, real and personal, sold to him by the plaintiff; that he proceeded to pay off part, of the debts from the Forge and Furnace Concerns, and to collect a part of the debts due to them; that he paid $1015,00 due at the Office of Discount and Deposit in Baltimore, and also $250 part of a debt to one Clements, which the plaintiff, by the contract of November, 1806, had bound himself to pay, but had left unpaid : lie, however, did not (as the agreement required) assume the payment of a note in the Bank at Baltimore, for $3669,13, ¡nor give his own note to the plaintiff for the amount thereof; but for a long time evaded, and ultimately refused doing either: that, on the 30th of July, 1808, he executed a lease to Joseph Williams of the whole of Belvedere Forge, and of all the said C. D. WJs interest in Mount Tony Furnace, to commence from the first of May, 1808, and to expire on the first of July, 1811, with a right reserved to C. D. W. to terminate the lease at any time, on giving four months previous notice; the rent reserved being $2650 per annum, not distinguishing between the rent for the forge, and the rent for the furnace ; by which lease, all the pig metal, bar iron and castings on hand, at the commencement thereof, and all the debts due. either to th forge or furnace, were conveyed to Joseph Williams absolutely, who was to use the stock on hand during the term, and, at the end thereof, return it in kind or value; covenanting to pay the debts, due from the forge and furnace, in iron, and to return the rented furnace in good repair: that, on the 17th of December, 1808, while the said lease was in full force, and Joseph Williams in possession, (no notice having been given him of an intention to revoke it,) C. D Wi’tiams, in Baltimore, wrote a letter to the plaintiff, declaring himself unable to comply with the articles of agreement of March, 1807, and saying he was compelled to avail himself of the last provision in those articles, and to give up to the plaintiff his quarter of the furnace, and all the property belonging thereto, which remained on hand, of what he had received of him; saying nothing about the time or manner of returning said property, nor about the lease to Joseph Williams; but saying that a part of the debts yet remained unpaid, for the payment whereof Joseph Williams was !:o deliver iron; thus seeming to admit that C. D. W. was yet bound to pay the debts, and that Joseph Williams’s lease was to continue. The Bill prolested against any construction of the agreement, by which C. D. W. should be permitted to surrender the property in discharge of personal or other responsibility; alleging that the personal property at the Furnace was greatly diminished by his fault or neglect; that he had left the State, and the United States ; that, prior to his departure, viz. on the 24th of April, 1800, he conveyed the forge, and one fourth of, the furnace, to his brothers, in trust, to secure to them $50,000; and that the said Lease and Deed of Trust were both fraudulent. The plaintiff alleged, that the accounts between himself and Yeiser’s estate had never been settled; and that a balance was due to him; and that no title had hem made by Yeiser. or his representatives, lo the Ms one fourth of the furnace property. plamtifffor</p> <p>The prayer of the Bill was for an-Account; that Yeiser’s heirs be decreed to convey and perfect the title; that the nature of the lease and Deed of Trust be investigated; that the property in the hands of Joseph Williams be attached ; “ that 1‘ the real property sold, by the plaintiff to C. D. Williams, by “ the agreement of 'Viarch 13th, 1807, and so much of the per-s< sonal property as remained ,” be sold to pay the balance due to the plaintiff; and, in ease of a deficiency, that a personal decree be entered against the said C. D. Williams.</p> <p>The answer of Cumberland D. Williams, filed in July, 1810, went into a very minute and particular statement of facts and accounts, not necessary to be detailed here. It admitted the existence of all the contracts stated in the Bill : it denied that ihe lease to Joseph Williams, or the Deed of Trust to the respondent’s brothers, was fraudulent, averring that both were bona fide transactions, and that the Deed was executed to reimburse advances made, and to meet, such, as his brothers were continuing to make for him: it described each of those instruments, as embracing ail the forge property, and the w'hole of his interest in the furnace. In relation to the relief sought by the Bill, the respondent seems to have taken three grounds of defence: 1st. That the plaintiff, not have procured a conveyance from tlie representatives of Yeiser, had no right to call upon C. D. Williams for the performance of any covenant on his pan ; the procurement of such conveyance being considered as a condition precedent to the performance of any act on the part of C. D. W.: 2d. That the plaintiff had no right lo recover any balance, that may have been due him from the furnace partnership, or from Yeiser, one of the partners, on the 13th of March, 1807; for two reasons; the one, that, by ihe agreement of that date, such balance was plainly transferred to the respondent; and the other, that the plaintiff, by his agent, had relinquished this claim to Yeiser1 s representatives: 3d. That the last clause in that agreement, prometed the respondent, in his person and property, from any liability, and authorized him to return to the plaintiff, in full discharge of all obligation, lite one, fourth of the real property appertaining to the furnace, and so much of ihe personal property, as mig ht be remaining.</p> <p>In support of this last ground, the respondent denied the correctness of the schedules exhibited with the Bill; and alleged, that, living as he did at a distance from the property, and having only visited it once, he was ignorant, at the time of making the contracts with the plaintiff, of its value and incumbrances, and was induced to make those contracts by the false representations of his friend and relation Joseph Williams ; that, nevertheless, he was fearful of the consequences of embarking farther, because of the unprofitableness of the works theretofore, and had the last clause introduced, after great deliberation, for the express purpose of protecting himself from losses; which clause was well weighed, and weil understood, both by himself and the plaintiff’s agent: that the plaintiff received decided and numerous advantages from the contract entered into with the defendant: on the other hand, the defendant never derived any advantage from the plaintiff’s one fourth of said furnace property: that $1000 were never realized from the debts due to said forge and furnace; that most of those debts were for advances made to woikmen, who were insolvent, and had absconded: several thousand dollars of this description had been entered, “ desperate,” on the books of the works : that whatever bad been derived from this source, had been applied- to the payment of the debts, dne from the concern, and in keeping up the establishment: that, owing to the bad quality of pig iron on hand, for some time before the defendant’s purchase, the character of the works was materially injured; that the value of the persona! property belonging to said works was very inconsiderable: that, finding the works deeply in debt, and in bad credit, the bar iron out of repute, the pig iron of a quality unfit for use, the forge standing still waiting for better metal, it was impossible for the respondent to comply with the agreement: he had expended $46,136,05, and had never received one cent of profit: that the respondent’s means being thus wholly exhausted, he meant to put an end to carrying on the business; hut, Joseph Williams being of opinion that he could manage the works to advantage, the respondent agreed to lease his interest in them to said Joseph Williams, he expressly stipulating to pay off the debts, and there being a provision that the detendant might at any time revoke the lease on four month’s notice; which clause was inserted because the defendant did not know what disposition he might be compelled to make of the property : that Joseph Williams, in pursuance of said stipulation, had extinguished the largest of said debts: the respondent bad received no part of the rent reserved; but Joseph Williams was responsible therefor: that the respondent’s concern in the said iron works having been so disastrous, no alternative was left to him, consistent with honour and justice, but a candid disclosure to the plaintiff, of his inability to accomplish a specific compliance with his agreement; and, being desirous to do him more than justice, by returning him his property in no manner deteriorated, but, on the contrary, greatly enhanced in value, by being relieved of heavy incumbrances of debts, which the plaintiff would have been bound to pay, and by improvements erected thereon by the respondent, he wrote to the plaintiff the letter of December 7 th, 1808.</p> <p>Benjamin Williams, Samuel Williams, Amos A. Williams and George Williams, by their joint answer, referred to exhibits, as shewing the amount of their advances for C. J). Williams, and alleged that the Deed of Trust to secure these advances, and such as they might thereafter make, was executed in good faith.</p> <p>The answer of Joseph Williams admitted that Yeiser and himself entered into the agreement, in 1803, with the plaintiff; that it was true that, afterwards, to wit, in November, 1804., this defendant, with the assent of two partners, sold his interest to C. D. Williams j from which time, until 1808, he had no connexion with the business, except as agent for C. D. W.: this connexion as agent enabled him to say that the schedules referred to in the Bill were grossly incorrect, including nearly double as much property, as was delivered to C. D. W. under the contract of March 13th, 1807. This defendant admitted he leased C. D, WJs interest in said property; that said lease was bona fide: that Yeiser did, in 1800, convey to him his part of said furnace; which conveyance, though absolute on its face, was intended to be in trust for the benefit of Yeiser's children : that he is willing, as one of Yeisrr’s peprocontíitivcs, to comply with any decree of the Court for completing the plaintiff’s title : that he supposes, if any balance was due from Yeiser to the plaintiff, it was transferred, by the agreement of March, 1807, to C. D. W.: that he holds the property leased’ according to the terms and principles of that lease, and on no secret trust for C. D. W., or his Trustees.</p> <p>The answer of Yeiser’s Executors. They had heard and believed there was a partnership in iron works between James Price, Joseph Williams and said Yeiser, and that C. D. Williams also became interested in said works; but they had no knowledge of the state of the accounts relating thereto. They alleged, however, and were ready to prove, that said Yeiser sold all his interest ia said iron works (being the moiety thereof) to Joseph Williams, upon condition of his paying all the money, due from said Yeiser to the other partners, or to other persons, on account of said iron works, or partnership therein .* as would fully appear by a deed from said Williams to John Borland and others, in trust for these purposes, recorded in , Augusta County Court: that C. D. Williams had also released the estate of said Yeiser from all claims, which he as co-partner may have had against Yeiser ; but the defendants do not know how the accounts stand. They deny that the plaintiff has a lien on the real estate, while the other partners are personally liable.</p> <p>General replications were put in to all the answers, except that of Yeiser’s Executors.</p> <p>The depositions taken on both sides, related either to the construction of the written agreement of March 13th, 1807, which was attempted to be explained by parol evidence, or to the state of the works, when C. D. Williams received them in 1807, and when he offered to return them under the contract; also to the manner in which the works were conducted. It was contended, on the one hand, that the value of the property was greatly enhanced by C. D. Williams’s management, and by the improvements he put thereon; whilst it was attempted to be shewn on the other, that the property was deteriorated, and Price’s security diminished, by C. D. Williams’s conduct.</p> <p>An Order of Account was made on the plaintiff’s motion ; whereupon a Commissioner returned a Report, which being re-committed, he made another; to which the defendant C. D. Williams, and the plaintiff, both filed exceptions: but, as no decision was bad upon them in the Court of Chancery, or in this Court, it is unnecessary to insert them.</p> <p>A motion was made to the Chancellor, in behalf of C. D. Williams, who, at the time of the institution of this suit, was a citizen of the State of Maryland, to remove the cause to the Circuit Court of the United States, under the 12th section of the Act of Congress, entitled, “ An Act to establish the Judicial Courts of the United States,” passed September 24th’ 1789 ; but the motion was over-ruled.</p>

<p>* 1. if the case avade by a Bill of Exceptions be, that the plaintiff?, suing tor freedom, were brought into this State subsequent to fhe year 1786, and that the de fendant asserts a claim to them on the ground that the Oath, prescribed by the 4th section of the Act of 1792, (I R. C. ch. 103,) was duly taken by him or those under whom he claims; the other grounds of claim authorised by the last clause of the same section, {not bang mentioned,) must be considered as excluded.</p> <p>2. The right of freedom, prima facie¡ acquired by a Slave imported into this State, subsequent to the year 1786, could only be obviated by evidence adduced to shew, or by circumstances authorizing a presumption, that the Oath required by law had been taken by the importer.</p> <p>3. In the trial of a suit for Freedom, declarations of a person, who imported the plaintiffs, are not evidence in their favour; if it do not appear that those declarations were made during the when he claimed them as his slaves, and that the defendant claims under him.</p>

THIS was an action of Slander, brought by Hancock, against g¿o/í in his life time.

AN action of assumpsit was brought in the County Court of Montgomery, by the Appellant against Oney and Lyle as merchants and partners. By his direction, the Writ was served on Oney alone, and all the subsequent proceedings were against him, although the declaration filed in the cause was against Oney and Lyle.

<p>1. In a suit for Freedom, the validity of a Will, under which the plain ■ tiff claims,ought not to be questioned ; the same, (or a copy thereof, the origina) being de stroyed,) having been admitted to record, as and for the last Will of the Testator, by the proper Court, whose Judgment remains, miappealedfropi and the validity of such Will not be contested in Equity. *** See 1 R. C. ch. 92. sect. 11; Ford v Gardner and others, 1 H. and M. 72.</p>