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 28
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Then in this Case as we have proved part of the Consideration [So] That H. was Indebted to the Plt. nothing remains but the Plts. promise to forbear which is the rest of the Consideration
It was admitted at the trial that the Plt. need not prove his Averment But that that ought to come from the Deft. if the Plt. did not forbear Now upon the Evidence of the Debt & the Defts. promise to pay it, the Plts. Promise to forbear shall be intended, for it cannot be supposed that the Deft. shou'd be chargeable upon his Promise if the Plt. did not forbear Hulsey Nor can it be supposed that the Defts. Promise was made on any
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other Consideration than that of forbearing the Principal Debtor So is the Case of Sadler and Hawkes 1. Rol. Abr. 27. pl. 49. 1. Danv. 56. Where if A. is Indebted to B. and C. Promises that if A. will not pay him in Convenient time he will This will be a good Consid'n for B. to have an Action ag't C. because it must be intended there was a Promise to forbear A. in the mean time
According to that Case if the Plt. here had no need to have set forth the Consid'n as he has done since the Law wou'd intend it to be so Then it must follow that tho' it is not expressly proved that the Deft. Actually spoke these words " In Considera- tion that you shall forbear [185] Hulsey I promise to pay you the money, But only that he promised to pay the Debt without more words, that Evidence is sufficient to charge him Because the Agreem't of the other side to forbear must be necessarily Intended and implyed altho' nothing was say'd about it
And the Court in April 1732. Adjudged that the Evidence did Support the Issue, tho' it is ag't the Opinion of all the bar Yet I think it was a very good Judgment It being admitted that the Plt. did forbear Hulsey Otherwise no undertaking of one Person to pay the Debt of another can be of any force unless he pronounces the words as they are laid in the Decl. Whereas the pronouncing those words cannot be material when the Substance of the Consideration was forbearing Hulsey and Accepting the Deft. for his paymaster which was allowed to be so upon the Trial
1WAUGHOP US TATE & Ux'r. Appeal Fr Plt. in app't. Appeal from Northumberland.
The Case.
John Contancean an Infant by Deed dated the 17th Dec'r 1718. Conveyed several Negroes to Richard Ball for the proper use and Behoof of Peter Contancean and his Heirs who was his Brother of the half Blood J. C. made his Will the same Day but nothing of these Negroes is mentioned in it The Heir at Law of John possessed herself of the Negroes and under Waughop Claims
The Plts. Wife is heir to Peter and brought Detinue ag't Waughop and recovered and from this Judgm't he has Appealed And the only Question is Whether the Deed of I. C. be a good
'S C. in MSS. Virg. Rep. in Congr. Libry. [Note by W. G.]
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SIR JOHN RANDOLPH'S REPORTS
Deed in Law And I think all the Books ag't it The Case of Thompson and Leach and the Opinion of the Court there 3. Mod. 310. is expressly that the Deeds of Infants have only the form but not the Operation of Deeds But it may be objected from the late Explanatory Law of the Negro Act An'o 1705. that because it is declared that Infants may at the age of 18. by Will dispose of their Negroes, Therefore by the Equity of that Act this Deed may be construed a good Deed to pass the property of the Negroes
Construed strictly and not with any Equity
Answer It is a Settled point that the Statutes of Explanation must be Construed strictly and not with any Equity or Intend- ment Cro. Car. 34. On the other side it was Insisted that this Deed may be Construed as part of his Will, and the Case of Green and Proud. 1. Mod. 117. and the Case in Moor where a Lre. was construed a Will were Cited And if it cou'd not be Construed as part of a Will, it may be a Codicil and the Court gave Judgm't upon that point below for the Plts. that the Deed shou'd be construed as part of the Will, tho' it appeared clearly by the Deed and the Will to be Otherwise And accordingly they had different Operations The Will did not take [186] Effect till after the Death of the Testor. But the Deed had all the effect it cou'd have upon the Delivery And I think it very Strange that it should be now construed to operate as part of the Will when such a Thing was never intended in the Beginning But it was delivered as a Deed at the same time that the other was published as his last Will I gave my Opinion to my Client before the trial in the County Court that he had the property of the Negroes in dispute And I believe any Lawyer in the World wou'd have given the same Opinion
1WAUGH US BAGG. Appeal Indebitat. Ass't Fr Appell't
Appeal from a Judgm't of Essex County Court. Waugh the Plt. below Declared that the Defts. Testor. was Indebted 20 Sep'r 1724. 2248wt. of Tob'o and in Consideration thereof Assumed to pay it And for non paym't Declares for 206. Stg. Damage The Deft. pleaded non assumsit and Action non. within three years And to that Plea there was a Demurrer and
'S. C. in MSS. Virg. Rep. in Congr. Libry. [Note by W. G.]
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Judgm't for the Plt. and a Writ of Enq'ry was awarded and thereupon the Jury assessed 20£. Damages.
Sep'r Court 1730, the Deft. moved in Arrest of Judgment, assign'g several frivolous Causes, and the Cause was continued for Arguing the Exceptions till March following and then the Deft. moved for a new Writ of Enquiry which the Court Awarded accordingly, for which Reason the Plt. has Appealed And I con- ceive there is Error in the Judgm't
1. Because excessive Damages is not sufficient cause for a new Writ of Enquiry, So it is held 1. Mod. 2.
2. The Damages here will not be held excessive
In the Case of Nurse and Barnes, where the Plt. Declares that the Deft. in Consideration of 10%. promised to let him Enjoy certain Iron Mills for 6. Months and it appeared that the Iron Mills were worth but 206. pr Annum and yet Damage were given to 500€. by reason of the loss of Stock laid And p'r Cur. the Jury may well find such Damages for they are not bound to give only the 10£. but also the Spl. Dam. Raym'd 77.
So here the Special Damage is in delaying the paym't of the Tob'o about six Years
And the Judgm't was reversed
April 1732 FLEMING US DIGG'S. Case Fr Deft. [187]
The Case, Dillon was Indebted to Diggs 8. 1. 7. Curr't Money He arrests him and the Court held him to Bail.
Dillon in the Custody of the Sherif confesses Judgm't for the Debt and Judgm't is entered up ag't him accordingly the 20th May 1730 But no Order was entered for Committing him, nor was he charged in Ex'on. But he was Committed by Order Ore tenus. Dillon before the Court gave in a Schedule of his Estate upon Oath, According to the Act of Assembly 1726. And the Court thereupon Ordered the Sherif to discharge him And for obeying that Order the Plt. hath brought this Action ag't the Deft. who was the Sherif of Goochl'd County where the Proceedings were
The Plt. in his Decl. sets forth that Dillon was Indebted to him 8. 1. 7. That he Arrested him and he confessed Judgm't in Custody of the Deft. and that the Plt. intended to charge him in Execution but the Deft. suffered him to make his Escape
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SIR JOHN RANDOLPH'S REPORTS
The Plt. By the Act of 1726. the Court had a Power to dis- charge Dillon, if he had been charged in Execution. Of this there can be no doubt But as the Plt. had not actually charged him in Ex'on. it will be argued for the Plt. that he is out of the Act; That the Court did wrong, And that the Sherif is Answer- able for their Error
But I think it is clearly ag't the Plt. every way, It is generally true that a Man shall not be in Exec'on. with't the prayer of the Party tho' he be in Custody, and the reason of this is in favour to the Officer in whose Custody he is. That he shou'd have Special notice of every Judgm't ag't his Prisoner, because he can't be Supposed to know every Judgm't against every Prisoner This is clear in the Cases 1. Rol. Abr. 894. 895. 896. Salk. 272. 1. Keb. 775. 764. But where a Man is Committed for want of Bail, by the Court at the prayer of the Plt. and he confesses Judgm't in Custody, and then the Sherif Imprisons him, the Sherif must know him to be charged with that Judg- ment, and there needs no other prayer to charge him But the Law will suppose him in Execution without any more
So is the Case of Garnon. 5. Co. 88. and Bonner & Stukely 1. Rol. Abr. 895. & Dyer 368. Cro. Eliz'a 707. Where the Deft was taken upon a Capias Utlagatum [?] and Committed, he was held to be in Execution, for the Plt. without prayer Because the Outlawry was at the Suit of the Party. See the Case in Dyer
But certainly the Court here and the Sherif knew the Cause for which Dillon was Committed and it cou'd not be without the desire of the Plt. And when he delivered up his Estate According to the Act they had Power to discharge [188] him by any Reason- able Construction that can be made of it. Otherwise this Dillon and all Persons in the same circumstances must be in Prison at the Will of their Creditors 'till they shall be disposed to charge them in Execution, and what real difference can there be between this Case of a Man imprisoned upon an Execution certainly there can be none Or what Damage has the Plt. Sustained. Since if he had charged Dillon in Execution, As the Decl. says he intended, the Discharge must have been Legal
But if this point were Otherwise the Sherif is not Answerable in this Case If the Court made an Erronious Order in a matter that they had Cognizance of the Sherif must not dispute with them, but is bound to Execute their Order
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So is Bushes Case Cro. Eliz'a 188. Sherif of Durhams Case ib. 576. 893. Dunry's Case 5. Co. 142. 143. Mr. Kelleys Case 9. Co. 68. 2. Leon'd 84. 85. Cro. Ja. 28. 8. 9. Arguendo.
Besides here the Cause of Action is for 8. 1. 7. which is too low a value for this Court to take Cognizance of If it be objected that there is another Reason why a Man shall not be in Execu- tion without prayer of the Party, because perhaps he may chuse another Exec'on
According to the Case in 1. Rolls. Abr. 895.
It may be answered that of his own Shewing he intended to Charge him in Execution So that there is nothing in this Cause but a little Law, Cunning and contrivance and a vain Attempt, I hope to make an Innocent Man pay a desperate Debt, There is no wrong done to the Plt, No fault in the Deft. I pray Judgment
And the Court gave Judgm't for the Deft., Only Mr. Grymes Dissented, because he was of Opinion Dillon was not in Ex'on.
GODDIN US MORRIS & Ux. Ex'. STANNUP & ADM'L GODDIN AND . KEILING. In Chan'ry. Fr Plt.
The Case Goddin the Plts. Father having a small Estate in the Year 1710. died Intestate His Wife obtains L'res of Adm'on, and in October 1710, Exhibits an Inventory of the Estate which consisted of Cattle and Household Goods Appraised to 38. 10. 9. & 3 Negroes, a Man Appraised at 25£. a Woman Appraised at 256. and a Child at 56. In all 556. So the whole amount of the Inventory was 93. 10. 9.
Goddin the Intestate in his Lifetime was Indebted to [189] Keiling £.7. 1. 3. Stg. Stannup marries Goddins Widow and Keiling June 14. 1711. obtains a Judgm't against them for his Debt & Costs. 10th June an Ex'on issued and by Virtue thereof that Negro Woman and her Child Appraised at 30£. were taken to Satisfy the Judgment, Stannup then pays the Money and takes the two Negroes again thinking the Property by these methods was legally vested in him
In January 1715. he Exhibits an Acco't of the Intestates Estate wherein he Charges for Debts paid 27. 18. 11}, and 5 pr Ct. for his own Trouble 1. 8. 0. and giving Credit for the amount of the Inventory makes a Ball. of 64. 3. 91. due to be divided between the Widow and the Plt. which is 96. and upwards more than the value of the 3 Negroes
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SIR JOHN RANDOLPH'S REPORTS
Stannup disposes of the Negro Woman and her Children as his own, and dies, leaving his Wife his Ex'r She afterwards married the Deft. Morris. The Negro Woman has now seven Children, She & the Children are in the Possession of the Deft. Morris, and the others are in the Possession of the Deft. Allen being given to him as a Portion with Stannups Daughter
All this matter appears by the Bill and the Answers of the Several Defend'ts And the End of the Bill is, that the Plt. who is the Son and Heir of Goddin the Intestate may be relieved ag't the Defts. Morris & Allen to recover the Negroes in their possession
The Bill Charges a Combination and contrivance between Stan'p and Keiling to Serve the Execution upon these two Negroes in Order to Vest the property of them in Stannup, But Keiling in his Answer denys it, So we have nothing to say ag't him, It is certainly Lawful for a Creditor to Sue for his Debt and to serve an Execon. upon what part of his Deb'rs Estate he pleases
But I think this Scheme of Stannups to vest the property of these Negroes in himself is a very vain and fruitless one and not to be supported either by the Rules of Law or Equity
And the short Question upon the matter is Whether when a Man dies and leaves a Personal Estate sufficient to pay all his Debts with an Overplus and Several Negroes, And a Cred'r having a Judgment Serves an Execon. upon one or more of the Negroes, and the Ex'or redeems those Negroes by paying a Sum of money which is less than the value of one of the Negroes, the property shall be vested in him or remain in the Heir as it was before
Now in the Determining this Question it must be observed [190] If the Sum paid for the Redemption of the Negro in such a Case be less than the value there can be no difference between pay'g a Shilling or 106. Equity must make the same Judgmt. in both Cases Then observe the Inconveniences of Establishing such a Practice among Exors.
A Man may die indebted to several Persons Several small Sums and tho' he leaves sufficient Personal Estate to pay them, his Ex'ors may oblige these Cred'rs to sue for their Debts Then they shall have a Judgm't, An Ex'on follows every Judgm't. They are served upon several Negroes Then the Ex'ors will pay the Money and the Negroes become his own.
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If this may be done, the Policy of the Law of this Country in preserving Slaves for the Benefit of Heirs will be in a great measure frustrated, And a Door will be opened to great fraud, and Orphans Exposed to the Cunning and Contrivance of Exors. & Adm'rs
But I conceive this cannot be, but the property of these Negroes will still remain in the Heir, notwithstanding such a Contrivance And when Mr. Stannup in this Case redeemed the two Negroes which were Appraised at 306. by the paym't of 76. which was not a fourth part of the value, he did nothing but his Duty and he had Sufficient of the Personal Estate in his Hands to reimburse the Money, and he must take it out of that and not charge the Negroes
Personal Estate is in its own nature liable in the first place for the payment of Debts and when the real Estate is charged with Debts and is applied according If there be any Personal Estate the Heir shall be reimbursed out of it, this is an Estab- lished Rule in the Court of Chancery So are many Preced'ts Armitage & Metcalf 1. Cha. Ca. 74. Cornish & Mew ib. 271. L'd Gray & Lady Gray 2. Cha. Cases 297. Ib. 5. Popley & Popley ib'd 84. 1. Vern. 36. White & White 2. Vern. 43. Lovel & Lancaster ib'd 183. Cutler & Coxeter ib'd 302.
In this Court it hath been several times Adjudged that if an Exor having sufficient Personal Estate in his Hands sell Neg'es for the paym't of Debts, such Sale is void, and the Heir may recover the Negroes. It was so in Drummond's Case
The late Law for Explaining the Act making Negroes Real Estate Ratifys those Judgm't, and expressly declares that Ex'ors shall not Sell Negroes till the Personal Estate is exhausted Then according to the Cases in the Court of Chancery it is very Clear that the Heir at least must [191] be reimbursed out of the Personal Estate when his Negroes are Legally taken to paym't of Debts, and bona fide Sold This would be no Question
And by the Judgm'ts and the Law here, where Negroes are Sold for the payment of Debts by an Ex'or who has sufficient Assets besides, no prop'ty passes from the Heir, but he may recover them wherever he finds 'em
But here the Execution will be objected, and it may be say'd that the property of the two Negroes in this Case was Trans- ferred to the Cred'rs and passed again from him to Stannup upon payment of the Money
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SIR JOHN RANDOLPH'S REPORTS
Now as to the Execution, in such Cases as these it must be Generally Admitted, that when the Negroes of a Dead Man are taken and Sold to satisfy a Judgment such a Sale must be good, altho' there be other Assets; And the Heir must in that Case resort to the Personal Estate for Satisfaction. Otherwise the buying of Negroes at such Sales and buyers might be too much discouraged; Yet I think an Ex'or wou'd be to blame to force the Cred'rs to that Extremity when he might raise Money out of the Personal Estate to save the Negroes, and it is certainly the Duty of Exors. to dispose of the p'rsonal Estates in the first place and apply it to the paym't of Debts so far as it will go
But that is not the present Case, Here was no property altered by this Ex'on, for as the Law was then the property vested in the Cred'rs after Appraism't and paying the Overplus, It appears that nothing of this was done but the Negroes were delivered up back to Mr. Stannup upon his Satisfying the Judg- ment And if no property vested in Keiling none can be Claimed under him, then the Circumstance of the Exon makes no differ- ence and nothing will remain to transfer the property to Stannup but paying the Money which can avail Nothing, But that is not the Present Case If the property had passed when it re- turned again to the Exor. for so Stannup is to be considered in this Case, he had it in the same right he had before, He was as a Trustee for the Plt. who was an Infant, He was bound in Conscience to Act for his Benefit and not for his own, And so his Act of redeeming the Negroes must have been Construed if he had done nothing to shew a Contrary Intent
He paid 7£. for what was worth 306. and it was no Dis- advantage to him having enough to make him Satisfaction if that gave him a right to the Negroes The Heir has lost 6 Negroes and he has gained so much very good Interest if he had paid the 76. out [192] of his own Pocket, but no Court of Equity will give a Sanction to such a Practice So it is Submitted
And the Court Decreed Accordingly, That Stannup had gained no property in the Negroes, but the same, notwithstanding the payment of the Money remained in the Plt. And therefore Decreed that the Defts. shou'd deliver to him the several Negroes in their possession
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1LIGHTFOOT US LIGHTFOOT. In Chan'ry Fr Deft.
The Case.
Francis Lightfoot the Plts. Father was possessed of a great Estate, in Lands, Neg'rs, Goods & Chattels, and had agreed with Perry for the purchase of a Tract of Land upon Nottoway River, and made his Will Whereby among the other Legacies he gives the Deft. a Negro, he giving another in lieu of him to his Heirs, and to his Daughter 1000£. Sterling to be placed out at Interest till she shou'd be of age or be Married, and dis- poses of the residue of his Estate in these words " All the Re- " mainder of my Estate both Real and Personal wheresoever "lying or being I give and Bequeath to my dearly beloved Son "Francis Lightfoot and the Heirs Males of his Body lawfully " begotten, But in Case my s'd Son dies with't such Male Issue " or there be any failure thereafter in the Male line, then I give "all my Estate Real and Personal to my well beloved Brother " Philip Lightfoot (the Deft.) and his Heirs forever he or they " paying to the Daughters of my s'd Son, or in Case there be " none such, to my Daughter Elizabeth 2500₺. Current money " money of Virginia in full Compensation of the same." And appoints this Brother the Deft. and Mr. Benjamin Harrison his Ex'ors. & dies leaving only two Children the Son and Daughter mentioned in the Will. The Ex'ors. proved the Will & took upon them the Exec'on of it Mr. Perrys Attorney requires them to perform the Agreement for the purchase of the Nottoway Land, They agree to do it & Submit the Settling of the Con- veyance, so as the Land might pass According to the Will to him as their Council, And the Land was Conveyed accordingly to the Deft. in fee. He declaring at the time of Executing the Deeds that he had it in Trust for his Nephew and the Heirs Male of his Body and the Purchase money was paid out of the Testor's. Estate
The Circumstances of the Estate were such, that there was not Ready money sufficient to place out the 1000£. Legacy to the Daughter The Son in May 1730 about 2 Years and five Months after the death [193] of the Father dies in his Childhood The Deft. then ent'd upon the Estate in his own Right Claiming both the Real and Personal by his Brothers Will But before the Sons death Such part of the Personal Estate as might be the
1S. C. in W. G's Barradall & not the same report. [Note by W. G.]
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SIR JOHN RANDOLPH'S REPORTS
worse for keeping was sold by the Deft. and the other Exor. and what was useful to the Heirs Estate was preserved in Specie, and at the time of the Sons death neither the Ballance of the Personal Estate which had been sold, nor the Profits were suffi- cient to pay the 10006. Legacy But the Deft. being then charge- able with it consulted the other Exor. who was likewise joint Guardian with him of the Plt. about placing out the 1000£. at Interest, And writ to his Merchant in London to Inform him in what fund it might be put with the best Security and most to the Plts. Advantage But Mr. Harrison wou'd determine nothing positively about it, only desired the Deft. himself to keep it at Interest which he Always refused
The Bill requires the Deft. to Account for the Personal Estate and the Profits of the Lands and Negroes, to Convey the Notto- way Land to the Plt. to place out the 10006. and 25006. at Interest for her Benefit and to deliver her a Negro in lieu of the Negro given to the Deft.
These are the material Demands of the Bill, There are other Things likewise demanded, which appear by the Defts. Answer to be without Grounds
The Deft. submits to the Decree of the Court as to the placing out these two Sums of Money at Interest, being very willing it sho'd be disposed of as shall be most for the Plts. Advantage so as he may be Indemnified But as to the Profits he insists that they were chargeable with the paym't of the 1000£. legacy and ought to be applyed accordingly And besides to that part of the Bill which requires the Deft. to Account for the Personal Estate and to deliver the Negro, the Deft. demurs, it appearing by the Plt's. own Shewing that she hath no right to the same
The most important Question is upon the Plts. right to the Personal Estate which she Claims (upon a mistaken Notion I suppose of her Counsel) upon these Grounds; That by her Fathers Will it was vested in the Son, and that the Rem'r Limitted to the Deft. is void, as being ag't the Rules of Law, notwithstanding the words of the Will and the Testors. Intent is as clear and strong as possible, That the Deft. shou'd have his p'rsonal Estate upon the Contingency of his Son's dying & leaving no Male Issue But if this Rem'r of the Personal Estate in the manner it is Limitted must be held to be a good Rem'r by a liberal Construction that all Courts do in these Days make Men's Wills that they, may rather be [194] performed
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than totally disappointed or rendered useless in the smallest matter.
There can be no dispute in this Case about the Construction of the words of this Will or what he intended by them But the Rem'r was designed clearly to take place in the Deft. upon two Contingencies, either if the Son died leaving no male Issue at his death or when in any future time the male line of his Family shou'd be Extinct
For the words of the Will, (If my Son dies without such Issue Male) must in this Case be Construed, If he die leaving no Issue at his death, because of the Subsequent words, (or there may be any failure thereafter in the male line)
And indeed dying with't Issue in Common Parlance and According to Vulgar Acceptation is when a Man has no Issue living at the time of his death, tho' I admit in the Legal Accepta- tion when there are no words that shew a contrary Intent, these words are understood of a future time, when the remotest pos- terity shall happen to die without Issue, But here it is Otherwise, for two distinct Sentences in a Will must not be Construed to signify the same thing for then you render one of them useless, which must not be if it may be avoided
Then the Will must be taken as if it had been thus expressed " I give my Son my Personal Estate, but if he die leaving no Issue at his Death, I give it then to my Brother, or if he leave Issue male and the Male line fail at anytime, In that Case like- wise I leave it to my Brother
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