USA > Virginia > Virginia colonial decisions : the reports by Sir John Randolph and by Edward Barradall, of decisions of the general court of Virginia, 1728-1741, v. II > Part 1
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Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31 | Part 32 | Part 33 | Part 34 | Part 35 | Part 36 | Part 37
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REYNOLDS HISTORICAL GENEALOGY COLLECTION
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ALLEN COUNTY PUBLIC LIBRARY 3 1833 02375 6577
490
VIRGINIA COLONIAL DECISIONS
VOL. II v.2
1277
THE REPORTS
BY
SIR JOHN RANDOLPH
AND BY
EDWARD BARRADALL
OF DECISIONS OF
COPYRI 1009
BY THE BOSTON BOOK COMPANY
THE GENERAL COURT OF VIRGINIA
1728-1741
EDITED, WITH HISTORICAL INTRODUCTION BY
R. T. BARTON
BOSTON, MASS. THE BOSTON BOOK COMPANY 1909
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BARRADALL'S REPORTS
COPYRIGHT, 1909 BY THE BOSTON BOOK COMPANY
The Riverdale Press, Brookline, Mass., U. S. A.
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BARRADALL'S REPORTS
Presented to the Virginia State Law Library Richmond by Conway Robinson, Esq.
[1]
COPY OF SIR WILLIAM JONES 1US MAJESTY'S ATTORNEY GENERAL HLVOPINION ABOUT COL. BURNHAM'S WILL
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BARRADALL'S REPORTS
Presented to the Virginia State Law Library at Richmond by Conway Robinson, Esq.
[1] COPY OF SIR WILLIAM JONES HIS MAJESTY'S ATTORNEY GENERAL HIS OPINION ABOUT COL. BURNHAM'S WILL
I, having perused the Will of Lieut. Col. Burnham, and the Depositions relating to the same, Am of Opinion;
That this is undoubtedly a good Will, if not avoided by the Act of Parliament made in England, Anno 1677 against Frauds, &c. For it clearly appears, the Devisor was Compos Mentis and understood himself well and did willingly and with a full Desire, both cause the same to be written, and did after sign and publish the same. And Whereas there were only two Witnesses, who did, in the Presence of the Testator, subscribe their names as Witnesses, and more Persons being present, who were Witnesses to the same, One of them hath since set his Hand thereto; I think, though it was not discreetly done to do so, yet, being done, it nothing vitiates or makes void the Will.
That this Will made in Virginia of Lands there, is not within the Compass of the Act above said. So as that it should be necessary to have Three Witnesses subscribing their Names in the Presence of the Testator, (as that Act requires for Devises of Lands in England) For though I do agree, that an Act of Parliament made in England doth bind Virginia or any other of the English Plantations where they are expressly named, Yet I do conceive a new Law or Statute made in England, not naming Virginia or any other Plantation, shall not take Effect in Virginia or the other Plantation, 'till received by the General Assembly or others who have the Legislative Power in Virginia or such other Plantation, and this upon a double Reason,
1st. Because the Parliament of England, when they make a Law without naming more Places than England as the Extent to which it shall relate, are not to be presumed to have Con- sideration of the particular Circumstances and Conditions of
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the Plantations, especially considering no Member come from thence to the Parliament of England.
2dly. Because the Plantations have their own Representa- tives, and though the Parliament of England hath a superior Power, when they think fit in express Words, to execute it; Yet it shall not be presumed, that they execute that extraordi- nary Power, when they do not in express Words declare it. And as this hath been anciently resolved in many Cases with Relation to Ireland, So I think the same Reasons hold with Relation to the Plantations, And if it should be otherwise this great Incon- veniency amongst others would follow, That a Law made in England (which relates, if no time be expressed to the first Day of the Parliament, and when a Time is set it shall take Effect; it is commonly so short a Time as no Notice can arrive to the Plantations before it begins to take Effect) should bind the Plantations, who have not any ready Means to know it for a long Time after it is passed; And so then should be bound by Law of [2] which they are, or may be reasonably supposed necessarily & invariably ignorant.
William Jones.
7 ber 22d 1681.
A Dispute happened in this Country upon this Will of Col. Burnham in the Lord Culpepper's Time; and his Ldp. upon his Return to England, stated the above Case to Sir W'm Jones, and after he had obtained his Opinion, he shewed it to all the then Judges of England, Who declared the same to be Law: And this his Ldp. when he came a second Time to Virginia, affirmed in open Court at James City County .- I have been informed by Mr. Thomas Lee, who found amongst the papers of his Father, then I believe, a Judge of the Court, a Memd. to this purpose.
[Note by W. G.] (All of the foregoing opinion and subjoining memorandum except what of the latter is contained within parenthesis at the end, is printed in North Carolina Law Repos, 21-23.)
OPINION OF SIR EDWARD NORTHEY ABOUT ADVOWSONS IN VIRGINIA
On Consideration of the Laws of Virginia, Provision being made Act entitled, Church to be built or Chapel of Ease, for the building a Church in each Parish; and by the Act entituled, Ministers to be inducted, that the Ministers of cach Parish shall be inducted on the Presentation of the Parishioners, And the
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Church Wardens being, by the Act entituled, Church Wardens to Keep the Church in Repair, and provide Ornaments to collect Minister's Dues, And by the Act for the better Support and Maintenance of the Clergy, Provision being made for the Min- isters of the Parishes, And the said Act for inducting Ministers, the Governor being to induct the Ministers to be presented and thereby he being constituted Ordinary and as Bishop of the Plantation and with Power to punish Ministers for preaching contrary to that Law;
I am of Opinion the Right of Presentation to the Church is subject to the Laws of England (there being no express Law, of that Plantation made further concerning the same) therefore when the Parishioners present their Clerks and he is inducted by the Governor (who is to be and must induct on the Presen- tation of the Parishioners) the Incumbent is in for his Life, and cannot be displaced by the Parishioners; If the Parishioners do not present a Minister to the Governor within six months after any Church shall become void, the Governor as Ordinary shall and may collate a Clerk to such Church by Lapse, and his Col- late shall hold the Church for his Life. If the Parishioners have never presented [3] they may have a reasonable Time to present a Minister, but if they will not present, being required so to do, the Governor may also in their Default collate a Minister.
In inducting Ministers by the Governor on the Presentation of the Parishioners or on his own Collation, he is to see y'e Minist'r be qualifyed according as that Act for inducting Min- isters requires. In Case of the Avoidance of any Church the Gov'r as Ordinary of the Plantation is according to the Statute 28th. H. Sth Cap 11. Sect 5th to appoint a Minister to officiate till the Parish shall present one, or the six months be lapsed and such person appointed to officiate in the Vacancy is to be paid for his Service out of the Profits thereof from the Time the Church becomes void. By the Law above stated in this Case No Minister is to officiate as such till he hath shewed to the Gov'r He is qualifyed according as the said Act for Induction directs. If the Vestry do not levy the Tob'co, the Courts there must Decree the same to be levyed.
Edward Northey July 29th 1703.
[Note by W. G.] (This Opinion and another in the same matter are published in Chalmers Col. Opins. (Edn. Burlington 1858) pp. 56-60.)
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OPINIONS OF S'R EDWARD NORTHEY AND DR. HINCHMAN ON THE FOLLOWING WILLS
William Wilkinson of the Province of North Carolina made his last Will and Testam. in Writing Part of w'ch was in these Words.
I give and bequeath unto my Loving Wife Esther Wilkinson and to her Heirs forever All my Whole Estate Real and P'sonal in what kind soever & wheresoever it may be known or found in this Country or any other parts of the World any ways belonging or appertaining to me the said W'm Wilkinson. Making her the said Esther Wilkinson whole and sole Exe'x of this my last Will and Testament to receive and pay all my just Debts and Legacies. And farther it is my Will That in Case mysaid ExE'x above named shall depart this Life without making of a Will or otherwise disposing of this my said Estate or any part or P.cel thereof but what shall be remaining at her Death shall fall to the nearest of my Relations &c.
And after the Death of his Said Wife if she dyed without a Will or without disposing of the Said Estate he appointed several P.sons his Ex'ors whereof Thomas Luton was one who was a Relation of the said W'm Wilkinson's.
Esther Wilkinson afterwards married Coll'o Pollock and dyed [4] a Feme Covert but made her Wiil where she gave All the Lands & other Estate given her by her Said first Husband's Will (Some few Legacies excepted) to the said Thomas Luton and his Heirs forever.
S'R EDWARD NORTHEY'S OPINION
I am of Opinion by the Will of W'm Wilkinson his Wife had a qualified Fee Simple in the Estate devised to go over as directed by the Will if she did not dispose of it, and therefore as to the Power of disposing of the Estate it was an Authority in her w'ch she might execute, Notwithstanding her Coverture, And hath well executed it by her Will, as to the Real Estate, but as to the P.sonal Estate of her first Husband by her Marriage she hath disposed of it to her Second Husband And he thereby became absolute Owner of the P.sonal Chattels in her posses- sion As to her other Estate she (being a married Woman) could not dispose thereof without her Husband having the Interest in the Estate and not only an Authority to dispose &
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therefore that will descend to her Heir at Law if she had the Inheritance And if her Devisee (of Wilkinson's Lands) be out of Possession he must recover them by Ejectment.
Edward Northey July 10th 1716 then Att General
Que: Whether S'r Edward Northey is not mistaken as to the P.sonal Estate Seing she had it as ExEx and never made any Declaration That she took it as Legatee.
HUMPHRY HINCHMAN L.L.D. NOW THE BP. OF LONDON'S CHANCELL'R HHIS OPINION
I am of Opinion That Thomas Luton would have been intituled to all the Estate of W'm Wilkinson the property of w'ch had not been altered by the dece'd Esther in case he could prove himself the next of Kin to the dece'd William and Esther had dyed Intestate And likewise to a probate of the Will.
All that Estate Esther had as Ex. Ex. of w'ch ye Property remained unaltered at her death She might dispose of by Will Notwithstanding her Coverture, And the Ex'tor appointed by her is legally intituled to a Probate of Such Will.
I apprehend the Power of granting Probates and Adm'tions to be given the Gov'r of the sev'al Plantacons and a probate granted here would be of no force in those Parts. But it will be proper for the Ex'tor to apply again to that Court w'ch has Jurisdiction in those Parts and pray a Probate And in Case the Judge upon repeated Application [5] refuse to grant him such Probate he may appeal to his Majesty in Council and will in my Opinion find relief there
Humphry Hinchman Drs. Commons March 8th 1717
[Note by W. G.] (These Opinions are published in North Carol. Law Repos. 23-25.)
CASE STATED BETWEEN PHINEAS BOLT AND ISHAM RAN- DOLPH WITH S'R ROBERT RAYMOND'S OPINION TIIEREON
A. a Merchant in London ships on board B. bound for Pensil- vania Goods to a considerable value and takes a Bill of Loading of C. the Master, to deliver them safe at the Port of Philadelphia the dangers of the Seas excepted to D. or his Assigns.
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The Ship arrived safe in the River Delaware and in going up, run aground about sixty Miles from the Town of Philadelphia. To save the Ship they were obliged to take out great part of her loading, and after she had layd Nine Days, got her off and carryed her up the River within twenty Miles of Philadelphia.
C. the Master thinking it dangerous to go further gave D. Notice thereof; Upon which D. requested him to send his Goods, w'ch were still on board, up to Philadelphia C. accordingly put them on board his long boat & sent his Chief Mate, Boatswain and Three other Men to take Care of 'em
About ten Miles on this Side Philadelphia, they met with a sudden Storm of Wind and as they were sailing right before it, the Sea running very high, the long Boat pitched her head under Water, and immediately before they could haull down the Sail, She filled and sunk. The Chief Mate was drowned and a great part of the Goods lost.
The Master rec'ed Freights for the Goods in London w'ch was about fifty Shillings, And the Value of the goods that were lost was about Three hundred pounds.
Q. 1st. Whether the Ma'r or Owners are chargeable with any Damage that may happen to Goods rec'ed on Freight after they are out of the Ship. And whether the Ma'r's Contract is not dis- chargd by a delivery of the Goods at the Ship Side.
The Ma'r is bound by his Bill of Loading to deliver the Goods took in at Freight at the Port mentioned in the Bill of Loading safe Danger of the Sea excepted, And therefore I am of Opinion the Master is not discharged by the delivery of the Goods at the Ship Side, if nothing more was in the Case.
Que. 2d. If the Master was not obliged to send the Goods up. Whether his Sending the Goods by his own Boat and Men [6] by the Order of the Owner of the Goods, is not the same, as if he had delivered 'em to any Waterman by his Ord'r
I am of Opinion that the Ma'r is answerable for any Accident that might happen to the Goods by the Carelessness or Negligence of his own Boatmen, he being originally liable on the Bill of Loading & there being no P.ticular direc- tions to whom they should be delivered to be brought up if there had a delivery by the Master to such P.son would have discharged the Master.
Que. 3d. If the Ma'r's Contract should not be discharged by a delivery at the Ship Side: Whether he is chargeable without a
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Neglect of the Sailors with the loss of the Goods occasioned by a Storm?
I am of opinion upon the whole Circumstances of this Case That since the Ma'r was ordered by D. to send the Goods and the Accid't hapened not by any Neglect of any P.son but by a Storm that the Ma'r will not be liable to answer for the Loss of them?
Lincolns Inn
Rob. Raymond July 16th 1716
Afterwards Phineas Bolt brought his Action in the Kings bench ag't Isham Randolph and declared upon the Bill of Loading. And at a Tryal before the Lord Chief Justice Parker the Case appearing as it is above stated His Lords'p directed the Jury upon the General Isue to find for the Def't Randolph w'ch accordingly they did but the Plt. suffered a Nonsuit. ...
Trinity Term 3d. G. R.
Comon Serj't Dee being of Council for the Deft. and Serj't Cheshire for the Plt.
[Note by W. G.] ( The foregoing opinion, without what is here added about an action and trial is published in North Carol. Law Repos. 25-27.)
CASE STATED BETWEEN MR. MICAJAH PERRY & RICHARD PERRY & THE EX'TORS OF COLL'O WILL'M RANDOLPH WITH THE OPINION OF S'R THOS. POWYS, S'R JOHN CHESHIRE, S'R ROB RAYMOND, S'R W'M THOMPSON KING'S SOLL'R GENERAL & MR. REEVES THEREON
A. a Merchant beyond the Seas in Virginia, began to import into that Country Sundry Goods & Merchandizes from England about the year 1682 And employed B. a Merch't in London as his Agent and factor to transact his Affairs here, in buying Goods and disposing of Tob'co and other Comodities w'ch he remitted in considerable [7] Quantities every Year and allowed B. the customary Comissions & Advantages in buying and Sell- ing. .
About the Year 1687 A. consigned to B. a Quantity of Tob'co drew some Bills of Exchange and directed Goods to be sent him, to the Value of 800£ or thereabouts, Expecting by a moderate Computacion, his Remittances that Year would have amounted at least to that if not more. But it hap'ned either from the Mismanagm't of B. or the sudden Fall of that Comodity, that on making up the Accompts B. made due to himself a Ballance
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of £1000. . . . A. continued a large trade after this and still comitted his Affairs to B. he consigned him great P.cels of Tob'co and other things every Year for several Years, but on the Credit of his Consignm'ts drew some Bills of Exchange and gave fresh Orders for Goods, w'ch were gen'ally answered, So that there was an open running Account betw'n them. And A. by Losses, Hardships in Trade & other Misfortunes continued in Debt Sometimes more, Sometimes less, And at the time of his Death w'ch was in the Year 1711, owed B. £700.
During all that Time B. charged Interest upon Interest for £1000. ; As a Ballance settled by himself, without regard to the Subsequent Trade. The Ex'tors of A. discharged all that was really due on a Set'led Ballance and more, And refuse to pay the Interest or any Part of it. The Testator never having promised but always refused to pay it. B. has comenced a Suite at Law for the Interest ag't the Ex'es of A. w'ch he has summed up to £2500.
Que. Whether as this Case is, an Action can lye for Interest on an implyed Assumpsit in Law without a positive Promise?
If upon an Aecompt made up between Merchant and Mer- chant, or between a Merchant and his Factor, there be a Bal- lance coming to one of them, and a Subsequent Trade is con- tinued and an open dealing between them & running Acct's as before, I never understood That Such a Ballance would carry Interest, unless it was so agreed between the Parties: But how the Fact will come out in this Case upon the Evidence to the Jury I cannot tell.
Que. 2. Granting that there was a Ballance due or a Stated liquidated Account and no Subsequent Trade. Whether Inter- est can be recovered at Law without a Reservation or the Express Agreement of the Parties?
If an Action be brought for a Sum certain, reduced & Set'led upon an Accompt Stated and no Subsequent dealing is between the Parties, the Jury may and gen'ally they do give Interest under the Word Damages for such stated Sum, Causa De ten- tionis &c. But there is no Colour for Interest upon Interest and damages being uncertain and in the Breast of a Jury they will be governed [S] by the Circumstances of the Case, w'ch will depend upon the Proof being Matter of Fact.
Tho. Powys 19 Nov'r 1717
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Serj't Cheshire to the 1st Que.
In Case A and B have continued a constant Intercourse and the Ballance due to A has been by the Remittances of each succeeding Year, been altogether or in a great Part cleared, That will be such a Current Way of Dealing as will keep the Account open and make Demand of Interest unreasonable for each Years ballance, Especially since B. had Comission and other good Advantages by A.'s Imployment of him unless A. had in some subsequent Account wherein B. had included Interest submitted to that Ballance w'ch (the Case says) he always refused to do.
To the 2d Que
Where a Debt has arisen for Money lent or on Acc't stated and that Debt has been often demanded and a long time due & unpaid A Jury will Sometimes allow the Plt. some Interest on the Damages. But where the Debt arises upon mutual dealings and there is no Account stated but it appears upon the closing of a current Account, that one is Debt'r to the other I think it is not usual nor reasonable to allow Interest because till the De- mand was thus adjusted it remained in uncertainty
Inner Temple
2d Nov'r 1717.
Jo: Chesshyre
S'r Robert Raymond to y'e 1st Que.
I am of Opinion in an Action at Law (if y'a Principal Sum is admitted to be rece'd) B. can't recover the Interest on an implyed Promise.
To the 2 Que
I don't know that Interest at Law has been allow'd on a stated Account, but 'tis every day allow'd in such a Case in Chancery.
Lincolns Inn
Rob. Raymond 9 ber 6. 1717
[9] S'r W'm Thompson to the 1st Que.
I conceive no Action at Law will lye for this Interest nor will a Court of Equity allow Interest as this Case is stated, It seem- ing to be a continued running Acct. & though the Ballance might be on the side of B. one Year more than other Yet unless that was a Stated Ballance & the Account as to that Sum
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settled & agreed to by A. the Continuance of Remittances on both Sides shall make the whole an open account for any part of which no Interest shall be allowed.
To the 2d Que.
If an Account be stated it does not of itself in Point of Law carry Interest but a Jury will have regard sometimes to the long with-holding of Money & give Interest in Damages though if excessive a Court of Equity may moderate Since the Party might have brought his Action at Law as soon as he pleased for the Principal after the Account stated, though the Circum- stances of a Case (as the Continuance of Trade between 'em) may account for not being so strict and it may be reasonable that the Party should have some Interest All w'ch a Court of Equity will consider, but this only in the Case of an Account settled and ballanced and no Trade continuing after w'ch does not seem to be this Case, but if it should prove so, then I think a Court of Equity as I say will have some regard to Interest and the subseq't Remittances shall be set of one against another.
W'm Thomson 2d of Nov'r 1717
[Note by W. G.] (Sec post 30)
Mr. Reeve's to the 1st Que
I conceive upon this Case as it is Stated, no Interest is due, there being a running Trade between them & no Account Stated, but if there were an express Promise it would be other- wise.
To the 2d. Que.
If the Account were stated in Writing, I do not see why a Jury might not consider the Interest in Damages when the Party hath been long out of his Money.
Tho Reeves Nov'r 4th 1717
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THE OPINION OF MR. DUNCAN DEE COMON SERG'T OF LONDON ON THE FOLLOWING CASE .
Thomas Pannil & John Prosser Surveyed 2200 Acres of Land upon Matapony Swamp and at the same time made a Division by a Line of marked Trees & a Plat w'ch Mr. Buckner says was made by the Surveyors that first surveyed the Land
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for Pannil and Prosser, they never took out any Patent for this 2200 Acres of Land but some time after makes another survey beginning at the same Place and takes in 5200 Acres of Land and some time after John Prosser made a Will & thereby devises in the Words following
I give to my Two Sons Jointly Roger Prosser and Anthony Prosser a Tract of Land lying on Matapony Branches containing 1100 Acres to them and their Heirs forever, the Said Land to be equally divided between them when the Eldest of them comes of Age. And in Case they dye without Issue then to fall to the surviving Brethren but not that this shall be any Barr to any of them to hinder them from Selling their proper Inheritance.
Before the Two Brothers made a Division y'e Youngest Son of the Two dyed and left a Son w'ch is now come 'to Age and hath sold his Right to T. and the Eldest of the Two sold his Right to B. and soon after he dyed
Que. Whether that Division between Pannill & Prosser with- out any Record or Evidence of such Division nor any other Way to prove it but by that Plat w'ch B produces and a line of marked Trees in that Part of y'e Patent of 5200 Acres that lye in the same Place be sufficient to give Old Prosser a Title to Will that Land away -- And if Old Prosser had a good Right to will it - Whether the Heir of the Youngest Son (notwith- standing there was never any Division between the two Brothers) hath not good Right to an equal Part with B.
Thomas Pannil outlived John Prosser and made his Will wherein he gives to Catherine his Wife & his 3 Children W'm, Mary & Isabell and to the Child his Wife was then ensient with All his Land &c. to them and their Heirs forever to be equally divided. And afterw'd he says I give to Anthony Prosser A Tract of Land lying on Matapony Swamp w'ch Land was taken up between his Father & myself in Copartnership the said Land to be divided between him and my Children. And Anthony Prosser is dead and Isabell Pannil also the first leaving a Son, the last a Daughter.
Que. Whether that Son and Daughter shall not inherit the Parts of their Father & Mother And what Part Prosser has right to?
Upon Perusal of the Patent to Mr. Pannil & Mr. Prosser and of their respective Wills I am of Opinion That Pannil and Prosser were [ 11] Jointenants of the 5200 Acres And the marking
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