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. I > Part 23
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VIRGINIA COLONIAL DECISIONS
October 1729 [131]
1 MANSEL BLACKGROVE US THOS. ADDISON. Ejectm't Fr Deft.
A foolish story-Land given on a condition precedent-it must be previously performed.
Upon a Lease of one Messuage and 190 Acres of Land with the Appurtenances, this Special Verdict is found.
That William Ellis was seized of the Lands in Question and by his last Will and Testament bearing date 28 January 1720 Devised the same as follows "I give and bequeath unto my " Wife Ann the use of all my Lands during her natural Life and " after her death I give the Lands in James City that is mine to " Mansel Blackgrove and his Heirs for ever. Item I will and " desire that the Land before give to M. B. after my Wife's " decease be not his without he Comply with my Will and desire "hereafter and the same Agreement between him and me " appear in writing from under his Hand after my Decease.
That at the time of making this Will the Testator signed a Writing Intitled Articles of Agreem't between him and Mansel Blackgrove importing that B. was to build upon these Lands a Dwelling House of the Dimensions there mentioned and repair a Tobacco House between the date of that Writing and Christ- mass following And upon his performing this he declares he had given him the Land by his Will after the decease of his Wife, otherwise by that writing he debars the said B. and his Heirs from that Legacy.
Ann Ellis died before the bringing of this Suit and that M. B. the Lessor of the Plt. before her death had notice of the s'd writing and about 12. Months after the death of the Testor, but has not performed the Work, nor was not required to do it.
There is no Title found in the Deft. But Baron Burwell has Petitioned for a Grant of the Lands as vested in the King by Escheat.
This is a very easy Question The writing operates with the Will whereby the Lands in Question are Devised to the Lessor of the Plt. upon a Condition Precedent and that Condition is not performed tho' he had Notice before the death of the Wife so nothing vested in him.
But as to the point of Notice not having Notice will not
18. C. in MSS. Virg. Rep. in Congr. Libry. [Note by W. G.]
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SIR JOHN RANDOLPH'S REPORTS
be Excuse the performance of a Condition in the Case of a Stranger Tho it is otherwise in the Case of the Heir at Law.
And the Court gave Judgm't Fr the Deft.
October 1729
1ABBOT US ABBOT. Trover for several Negroes Fr Deft. [132]
Many prects. of plt. in trover &c. being barred of new action by jug'ts. ag'st him -of his being barr'd by Jug't in a diff't action for the same thing if former suit dismissed no bar.
The Deft. pleads in bar an Action of Trover brought by the Plt. formerly for the same Negroes and upon not guilty Pleaded a Verd't was found against the Plt. And Judgment that his Suit shou'd be Dismiss't, to which the Plt. hath Demurred That this is a good bar will appear by the Resolutions of the Judges in England in many Cases.
Ferriers Case C. Co. It was resolved when one is barred in any Action Real or Personal by Judgment on Demurrer, Con- fession Verd't &c. he is barred as to that or the like Action of the like nature for the same Thing Expedit, republice utsit finis lituem [sic] S. Case is reported, Cro. Eliz. 667. and there it ap- pears that in an Action of Trover the Deft. pleaded that the Plts. and another who is since dead had brought Trespass against several for the same O, who justifyed the taking as Heir of in the right of the now Deft. And tho' the Deft. is a Stranger to the Record yet being privy to the Trespass he may Plead it and is a good bar. By Walmsley and Kingsmill against Anderson and Glanvil who hold that if the Cause of Action was the same, the Deft. might Plead it. But a Verdict or Demurrer in an Action of Trespass cou'd not be a bar in Detinue which is an Action of a different nature, which Walmsley Agreed where the Verd't was upon Not guilty But when a Title is Pleaded in an Action of Trespass and by reason of that Title, the Plt. is barred by Verd't or Demurrer The Interest is thereby bound and the Plt. barred Agreeable to this Opinion Walmsley in the like Case of Putt and Roster 2 Mod. 319. a Judgment is reported to have been given But that Reporter seems to have mistaken the Case for S. C. in 3. Mod. 1. and Raym. 472. The Verd't Pleaded in Bar was upon not Guilty And therefore it was Adjudged for the Plt.
1S. C. MSS. Virg. Rep. in Congr. Libry. [Note by W. G.]
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But it is Admitted in all these Cases that where an Action is brought and the Plt. barred by Verd't or Demurrer that shall be a barr to any Action of the like nature for the same Thing And in the Case of Lechmere vs Toplady 2. Vent. 269. In Trover it was Pleaded that the Plt. brought Trespass before for the same Goods To which the Deft. pleaded not Guilty and a Special Verdict was found Where upon a Demurrer it was Adjudged that the Plea in bar was good. But in regard to the Case of Putt and Royston above mentioned & the Importunities of the Plt. the Court gave leave to speak further to the [133] Case the next Term And in the Case of Lipping and Kidgwin 1. Mod. 207. Fr North and agreed by the other Judges where the right of the matter is found for the Deft. in one Action the Plt. shall never bring his Action about again For he is estopped by the Verdict.
Obj. But perhaps it may be objected that the Judgment of the Court in this Case in the former Action That the Plts. Suit shou'd be Dismissed is no Judgment and therefore no bar, For the Judgment ought to have been that the Plt. take nothing by his Bill. As it was Adjudged between Level & Hall Cro. Ja. 384. Cited 2. Mod. 294. 295. Answer. This is the manner of entring all Judgments in this Country and if it is not right all Judgments must be void. And upon this Exception the Plea was held no Bar, by the whole Court.
So we see how the People of this Country suffer by Ignorance of the Clerks, for till within these three Years no other Judgment was Ent'red by the Clerk of the General Court And it was by my Advice that since that time Judgments have been entered that the Plt. takes nothing by his Bill, but in the Country Courts there is no such Entrey yet.
1BURGESS Admx. vs CHICHESTER Admr. In Chancery Fr Plt.
The limitation of a chattel. Many cases cited.
William Fox by his Will gives the use and Benefit of his Personal Estate to his Wife (now Deft.) during her natural Life and that after her death the same shou'd remain to his Nephew David Fox and the Heirs of his Body Lawfully begotten But if it shou'd so happen that his said Nephew shou'd not be alive, nor have any such Heirs as aforesaid at the time of the Decease
1S. C. in MSS. Virg. Rep. in Congr. Libry. [Note by W. G.]
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SIR JOHN RANDOLPH'S REPORTS
of his said Wife. Then the Testor. gives his Estate aforesaid after the decease of his s'd Wife to several others and to their Heirs viz. To Mrs. Burgess and all the Daughters of G. H. which shou'd be living at that time.
David Fox is dead without Issue and Mrs. Burges is his only Sister and Adm'x And the end of the Bill is to have a Discovery of the Estate and Security that the same shall not be Imbezzled
To which the Defts. have Demurred for that it appears by the Plts. own shewing that David Fox is dead and the Testor's Wife is now living whereby the Gift of him is void and no right in Law or Eq. is vested in the Sister who is his Sister and Adm'x
The Question is Whether anything is vested in David Fox If [134] Nothing vested in him the Plts. have no Equity.
As to this the old Books are That of the use of the Chattle to one for Life and after his death to another, That the first hath only the Occupation and the other the property And upon that difference the Rem'r of a Chattle has often been held Good
Bud.1 Abr. Tit. Devise 13. 37. Hen. 6. 30 And the Case of Lord Hastings ag't Douglas. Cro. Car. 343. Owen. 33. Then by this Rule David Fox had the property of this Estate of his Uncle vested in him But the subsequent Clause upon the Con- tingency of his dying in the life time of the Wife to whom the use is given, or not having Issue at the time of her death gives another Rem'r which is a Double Remainder
But this Remainder must be void and the Testators Intention to Intail his Personal Estate disappointed for the Law will not suffer Chattles to be disposed of in this mann'r Cases for this point are Whitmor's Case 1 Vern 326 Mr. Whitmore by his Will Devised the Surplus of his Personal Estate being 30000₺ to the Lord Craven during the Minority of William Whitmore his Son to the use of him and his Heirs Lawfully descended from his Body and in Case he died during his Minority without Issue to the use of the Children of his Sisters
The Son died without Issue being of the age of 18 but was married and by his Will devised all his Estate to his Wife whom he made his Exec'x who brought her Bill to recover this personal Estate against the Sisters Children and Obtained a Decree And tho the Lord Chancellor Vernon (1 Vern 347) Declared his Opinion that upon the whole complexion of the Will the Minority of the Testors. Son determined when he attained 17 years of
"The word is " Bro." MS. of Congressional Library p 225 - R. T. B.
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age Yet he says had that been Otherwise it was a Trust vested in the Son and the Rem'r over was void And withall said that if the matter in Question had been but for 100₺ it wou'd not have held an Hour's debate
S. C. is reported 2. Vent. 367. & Cha. Rep. 167. but not so clearly as to this point Broadhurst and Richardson 2. Vent. 349. A man had Issue 3 Daughters and Devised to them 180£ a piece but if any of them die without Child her part to go to the Survivors One of the Daughters married Broadhurst and before the Portion [135] paid died without Issue B. exhibits his Bill against the Ex'r and had a Decree for the 180T for a Sum of Money can't be Intailed Yet this Rem'r was upon her dying without Child which was a Contingency to happen within the Compass of one Life and so is Boucher and Antram Pollext 37. 2. Cha. Rep. 6
Cases against me are Vachel and Varhel 1. Cha. Cas. 129. Taufield Vachel Devised the use of several Paintings and Rarie- ties to his Wife for Life and after her Decease to her Son if she shou'd have one, But if she was not with Child or that Son died without Issue Male, then they were to remain to the use of Thomas Vachel the Plt. and that they shou'd remain as an heir Loom and go and remain to such Persons as should Inherit his Mannor &c. in Berks And it was Decreed with the Advice of the Judges, That as Thomas Vachel the Plts. Father died in the Lifetime of Taufield and the Deft. Roberta being not with Child so that the Contingencies upon which the Limitation was made never happening, the Lord Chancellor with the Judges were all clearly of Opinion that the Devise to T:V. the Son was Absolute and good in Law
But here nothing was vested in the Father or anybody else Clent and Bridges Lord Not. Rep. 26. Bridges by his Will gave his two youngest Daughters 600₺ a piece to be paid within 3 Months But if either of them die before 21. he desired and so far as in Law and him lay did give the Portion of her so dying to be equally divided between the Survivor and the Plt. The Daughters received their Portions and one of them died before 21. And the Lord Shaftsbury Decreed for the Plts. But upon a rehearing by Lord Nottingham that Decree was reversed because the 600₺ was Absolutely vested in the Daughters and that it cou'd not be Subject to the Contingent Clause For where a certain determinate time is appointed for the payment of a
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SIR JOHN RANDOLPH'S REPORTS
Legacy and afterwards a Contingent Clause is added the Con- tingency is vain and Idle unless it happen within that Period of time appointed for the payment of the Legacy and it may be say'd here the Contingency happened within the time when David Fox was to have the Possession of this Estate
And there are several Cases when a Legacy is given to one and upon a Contingency which may happen in a few years Rem'r to another that such Rem'r is good
Pawlet and Doggat 2. Vern. 86. 2. Vent. 347. Martin & Long 2. Vern. 151. Where a Rem'r of a Chattle upon the Contingency of dying without Issue before 21. was held good And in the Case of Pinbury & Elkin 2. Vern. 758. 766. a Rem'r of a Chattle If one dyed without Issue living at her death was Decreed to be good But the difference betwixt these Cases and our Case is that here the Limitation in Rem'r of the Per- sonal Estate [136] is to David Fox and the Heirs of his Body which is an Estate Tail and no Remainder of Goods after an Estate tail is good
So is the Lady Bergavernny's Case 2. Vern 324.
As to the other point That David Fox died in the Lifetime of the Wife whereby it is say'd the Gift to him is void Tho' by the Civil Law it is a Rule laid down by Swinburne That where a Legacy is payable at a time uncertain as at the death of the Testors. Wife, or the like, if the Legatee be then dead it is not to be Transmitted to the Ex'or but is a Lapsed Legacy Yet it is otherwise in Equity and so Decreed in the Lord Clarendons Case 1. Vern. 35. & Vern. 758. 767. And if the Plts. have any right they may Compell the Deft. to give Security. 1. Cha. Rep. 110. 1. Cho. 121.
Mrs. Chichester dying this matter was not Argued
But afterwards the Suit was revived by George Heal in behalf of all his Daughters. Several of which were born after the death of the Testor. And upon a Demurrer for several Causes that the Plt. had no Equity, had not made proper Parties And that the after born Daughters had no Title. The Case was argued
And the Court Decreed for my Client which is a good Decree upon the difference before mentioned The Rem'r being to David Fox, and the Heirs of his Body, but if those words had been omitted the Limitat. over would have been good Vid. Fitz- gibbons 315. S. P.
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VIRGINIA COLONIAL DECISIONS
April 1730.
CHURCHILLL US BLACKBURN. Qui - tam Appeal from Middlesex County Court.
Whether foregoing special Words shall restrain subsequent general words.
Anno. 1772. an Act of Assembly passed restraining the In- habit'ts of Virginia from planting for every Labourer above 16 years old more than 6000 Tob'o plants, and for every Male Labourer above ten and under 16. more than 3000. the Act Appoints tellers of all Tobacco planted and the Method of telling, and gives them a Power to cut up the overplus and Annexes several Penalties
It directs that all Masters of Family's and Housekeepers shall deliver to the Justice appointed to take the list of Tithables a true account of the Names of every Person above ten and under 16. allowed by this Act to make Tobacco And distinguish in their Lists of Tithables what Persons make Tobacco Then Enacts, That every Master of a Family and Housekeeper failing so to do shall forfeit and pay 500wt of Tobacco [137] and if any Person shall List or enter with the Justice any Person under 16. years as a Tithable or that is under 10 years or above that age or any Person as a Labourer in his Crop who is not employed therein. In either Case the Person so offending shall forfeit and pay 500wt of Tobacco for every such Person so falsly entered or Listed
Then comes a Clause in these words " And if any Master, " Mistress or Overseer shall refuse to give a just and true Ac- " count of the Names of the several Persons by this Act Intitled " to plant Tob'o on their Plantations and to shew all the Tobacco " planted thereon to the Persons appointed to view the same, " every Master, Mistress or Overseer, so refusing or giving a " false account shall forfeit and pay 500wt of Tobacco for every " Person above 10 years old imployed in making Tobacco on " such Plantation that year
Thomas Machen a teller under this Act Exhibits an Informa- tion against Mr. Churchill for 500wt of Tobacco forfeited by the first Branch of the Act for Listing Doll as a Tithable when she was under 16. And upon that Information has obtained a Verd't and Judgm't in the County Court
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SIR JOHN RANDOLPH'S REPORTS
Blackburn the Plt. Exhibits another Information upon the last Clause for 24000wt of Tob'o being 500wt of Tob'o for every Person above 10 years upon the Defend'ts Plantation in that year for Listing the same Negr. Doll as a Tithable when she was under 16. and upon that Information has obtained a Verd't and Judgment in the County Court for 6500wt Tobacco
This Judgment Mr. Churchill has appealed from and surely it shall be reversed
The only Question is Whether the Deft. shall be Subject to the Penalty of 500wts of Tobacco upon the Information of Machen and to this much greater Penalty of 500wts of Tobacco for 48 Persons above 10 years old Employed that year upon his Plantation upon the Information of the Plt. for the same offence viz. Listing Negro Doll as a Tithable
If this Clause upon which the Plts. Information is grounded had stood single and were construed Literally, as it must, being a Penal Law it might be a Question whether this Case wou'd be within it, For tho' it may be Argued, that the words (or giving a false Account) may extend to a false Account of the age, Yet being restrained to the first part of the Clause it can be strictly Construed only a false Account of the Names and not of the Ages
But as our Case is the point need not be Laboured, because the Offence the Deft. is charged with, Listing a Person as a Tithable who was under 16 is specially mentioned in the same Clause and a small Penalty is annex'd to it which without doubt the Legislature thought adequate
So that if one part of the Act be Expounded by the other there will remain no pretence of Argument that the Deft. shall first be charged with [138] a small Penalty by the special Clause, and then with this very great Penalty by the general one
The plain meaning of the two Clauses taken together is this, If a Master List any Person a Tithable that is under 16. or one above 10, that is not so, or a Labourer in the Crop who is not Employed in it he forfeits 500wt. of Tob'o
And if he gives an Account of Persons as employed upon his Plantation in making Tob'o that are not employed at all upon that Plantation or perhaps are not in being, then he is Sub- jected to the great Penalty of 500wt of Tobacco for every Person above 10 years old Employed in making Tob'o that year upon such Plantation
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And there is great reason that the Penalty shou'd be greater in one Case than the other, For mistaking the age of a Person may proceed from a defect in the Memory or misinformation as it happened in this Case And listing one Actually employed about the Business of a Plantation as a Labourer in Tobacco who is not really so is a less degree of Deceit than giving in the Names of Persons he is not Master of
But it will not concern us to shew what is the meaning of this latter Clause, We shall shew from the established Rules of Law that the Deft. cannot by Construction be punished twice for the same Offence under this Act
1st. It is a Rule that one part of an Act of Parliament shall be Expounded by another and in many Cases General words shall be Restrained by the Equity of other words and shall be construed against the Letter, As in Flowers Case 5. Rep. 99. Upon the Stat. 5. Eliz. Chap. 9. ag't Perjury, one part of the Act provides against such as Suborn Witnesses in any matter depending by Bill, Writ, Action, or Information Then there is a Clause ag't such as Commit Perjury by such procurement
Flower was Indicted for Perjury in giving false Evidence to the Grand Jury upon an Indictment Adjudged that tho' this last Clause be general and not restrained by any words to the par- ticular Suit before mentioned By Bill, Writ, Action or Informa- tion Yet in good Construction this Branch shall have reference to the first and shall be Expounded by it And so one part of the Act shall expound the other And Flower was Discharged, because Perjury by Indictment is out of the Act, vid. Co. Lit. 381.
2dly. It is a Rule that no Man shall be punished twice for the same Offence and no Construction of an Act of Parliament can be made ag't that rule Therefore it is the penning of all Statutes where two Penalties [139] are Annexed to be over and above the former Penalty And this is only done in Cases of repeated Commission of the Fact, Or where the Offence Admits of greater or less Degrees But lastly it is a rule that a general Clause shall not extend to things that are before Specially Com- prehended And this rule takes place in Deeds as well as Acts of Parliament.
If a Man by Deed gives Land & the Premises to one and the Heirs of his Body Habendum to him and his Heirs, he has an Estate Tail and fee Simple expectant upon the Reason of this rule 8 Co. 154. and Vide Litt. Rep. 345.
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SIR JOHN RANDOLPH'S REPORTS
In the Case of Edw'd Ettham 8. Co. 154. C. This Rule of Construction laid down, where a Deed speaks by general words and afterwards Descends to special words If the special words agree with the general Words the Deed shall be intended Accord- ing to the Special words.
But a general Clause never extends to what is specially Com- prehended before vid. also 2. Rol. Rep. 279. Styles 391. That the same Rule is Observed in Construing Acts of Parliaments appears in Raymond 330. Hard. 108. But a Case full to the point is that of Dr. Bonham 8. Rep. 118. b.
Hen. 8. by Charter Enacts the College of Physicians in London and Grants that no Person shall Practice in London or the Suburbs or within 7 miles without License of the College upon the Penalty of 56 [ineligible] half to the King, half to the College.
Then the Charter Grants Supvisn Examinations, Corrections & Gubernations of all Physicians and the Punishing them for the Offences and non bone exequendo &c. so as the Punishment be by Fine & Imprisonment.
In 14. H. 8. this Charter was confirmed by Act of Parliament. Doctor Bonham Practiced Physick without License of the College. The College Summoned him, and Adjudged that he shou'd pay the Penalty.
The Doctor continued to Practice, the College Summoned him again but he made default, and for his disobedience and Contempt they amerced him 106. and that he should be Com- mitted, Afterwards he came before them, they asked him if he wou'd satisfy the College, he Answered that he had Practiced and wou'd Practice. For which Cause he was comitted to Prison and for this Imprisonm't he brought his Action & recovered.
And among other points it was resolved That by the latter Clause of the Charter (which operated as an Act of Parliament by 14th of H. S.) the Doctor shou'd not be punished by Im- prisonm't [illegible] several Reasons, two of which are That no Man should be twice punished for the same Offence [140] And that a general Clause shall not extend to what is specially provided, which is exactly this Case. The Offence for which the County Court have given Judgment against the Deft. is specially pro- vided for in the former Clause. That Clause subjects the Deft. to the Penalty of 500wt of Tobacco, the Court below have given Judgm't for 6500wt of Tobacco.
This Judgment is absurd and against Common Sense, and
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can't possibly be affirmed in this Court, and I pray that it may be reversed And it was reversed by the whole Court except one.
CHURCHILL ads MACHEN Appeal from Middlesex Court.
Whether an Indictment finding a fact being &c. is good.
The Deft. has likewise Appealed from Judgment given upon the Information of Machen upon the Act of Assembly ment'd in the Case above.
The Information Charges That the Deft. being Master of a Family and a House-keeper, When he gave in his List of Tithables Anno 1725 did List with Roger Iones the Justice appointed to take the List of Tithables in that year one Female Negro called Doll, being under the age of 16 years as a Tithable ag't the Form of a certain Act of General Assembly Summoned to be held at W'msburgh the 5th of December in the ninth year of the late King Anno que Dom. 1722. and by Writ of Proroga- tion begun and held on the 9th of May 1723.
Upon the first reading of this Information I thought it liable to Exception 1. Because there was no sufficient Description of the Deft. to bring him within the Purview of the Act, being say'd that he being a House-keeper. 2dly. It is not observed that the Negro Doll was under 16 years of Age, But only, being under 16 years of Age But upon a more deliberate Considera- tion of the Case I was satisfied that the information was well enough from the follow'g Cases 2. Mod. 128. Mo. 606. Cro. Ja. 610. 2. Leod. 5. 2. Rolls. Reps. 226. Raym'd 378. Yet being well satisfyed that the Jury were very Partial in finding the verdict without clear Evidence to Convict the Deft [2 lines illegible.] [141] Where Smith a Commissary of the Bishop of Hereford was Indicted for Extortion in taking 8d. for Com- mitting Admon contra form'a Statu'e. The Indictm't was That Smith existens servus sive deputatus took &c. which being uncertain it was quashed.
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