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 15
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OCTOBER COURT MDCCXXXV.
MORRIS ag't CHAMBERLAYNE.
The Plt. declares upon an Indeb. Assumpsit for Money & Tob'o had & reced to his Use Upon Non assumpsit pleaded the Jury find a Special Verdict Upon which the Case appears to be That the Plt. was Sherif of New Kent Anno 1733 & had the [149] collection of the Quit rents Levies & Fees one Birch was his Undersherif & paid him 5000. 1bs. Tob'o for the profits of his Office There was due from the Deft. 6. . 12 . . 4 for quit rents & 7737 1bs. Tob'o for County Levies & Officers Fees of his own & other peoples that he had received Birch being indebted to the Deft. more than that Money & Tob'o before the Year 1733 gives the" Deft. receits for those Quitrents Levies &c. And gives himself Credit in the Defts. Book for the same but no Mony [sic] or Tob'o was paid Except by that Discount And the Deft.
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or Birch have not paid the Plt. any Part of that Money & Tob'o If the Law befor the Plt. the Jury find 71-1-10 Dam'a
The Questions upon this Case I take to be two. 1. Whether the Deft. is chargeable at all to the Plt. for the Quitrents &c. discounted with Birch the Undersherif & for which he has his Receits. 2. If he be, Whether the Plt. can maintain an Indeb. assumpsit for the Quitrents &c. due from the Deft. himself
There is a Difference taken as to the Mony rec'd for Quitrents & the Tob'o rec'd for Levies & Fees. The Quitrents are sayed to be the Kings Treasure & coming to the Defts. Hands he is answerable And so perhaps he would to the King if we were in a dispute with the Crown for it must be owned the Law is particularly careful to secure the Kings Debts. His Treasure is looked upon as the Treasure of the Comonwealth which is pacis vinculum et bellorum nervi And therefore he has sundry Preroga- tives for obtaining them He can have Exon of Body Lands & Goods at once A subject can have no Exon ag't the King's Debtor without first securing the King's Debt (p 33. H. 8. c. 39. if process for the King be comenced before Judgment) The King shall have Remedy ag't the Debtor of his Debtor cum multis aliis If a Man intermeddle with the Kings Treasure pretending Title he shall be answerable for it to the King 11. Rep. 89. E. of Devonshire - Godb. 291. 292.
All this is true but nothing to the purpose the Question here is not between the King & a Subject Nor ought the Money in this Case as I conceive be regarded as the Kings Debts It seems therefore foreign & absurd to talk of his Prerogative . The Case as to this Point is no more than this An Officer of the Crown employs a person under him who receives the Kings Money & pays it to a third Person The Officer sues this 3. Person for Mony received to his Use How is the King concerned in all this Will his Treasure be impaired if the Plt. should not recover How then can this be regarded as his Debt Is the Plt. intitled to an Exon ag't Body Lands & Goods Will he be preferred to another Subject in the Point of Exon. Can the Plt. have Remedy ag't the Debtor of the Deft. If I am answered in the Negative as sure I must be it will be evident to a Demonstration this is not the Kings Debt nor can be regarded as such if it was the Plt. would have all these Privileges Therefore without entering into the Dispute whether the Deft. would be answerable to the King or not [150] which I conceive is nothing at all to this Case
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I shall close this Point with an Observation of Sir M. Hale that To make the Kings Prerogative a State to recover other Mens Debts is unreasonable inconvenient & mischievous. Hard. 404.
This plausible Pretence of the Kings Debt being removed the Case is in short this An Undersher who had farmed the Profits of the Sher Office directs a Person to whom he is indebted to receive divers Quitrents Levies & Fees And disco'ts them to- gether with what this Person owed himself on the same Account but of his own private Debt & gives Rect's The Undersher proves insolvent the Sher is forced to pay the King & public Officers And whether the Sher can recover ag't the Person who reced these Quitrents by the Undersherifs Order is the Question
It is sayed if a Master send his Serv't to receive Mony & the Serv't pays it again to the Person he received it of in discharge of his own Debt this shall be taken as Mony reced to the Masters Use And I agree that it will be so But then I think that is nothing like the Case at Bar
The Undersherif here cannot be taken as a Serv't He had farmed the Office for a great Premium & so was not subject to the Direction or Controul of the Sher who had delegated his whole Power to him & therefore had no Right to intermeddle in the Receits & Paiments but the Undersherif was surely to manage that & everything else relating to his Office as he thought most for his own Advantage & Benefit It is inconsistent in the Nature of the Thing that the Sher should intermeddle for by that Means he might deprive the Undersherif of all the Profits which he paid so largely for
If the Sherif then had no Power to direct the Rec'ts & Pai- ments or in any Manner to controul the Undersherif How can the Undersherif be regarded as his Servant Or. how can Mony reced by the Order of the Undersher be Mony reced to the Sherifs Use
The Case therefore is not like that of the Master & Serv't for there is an apparent Fraud & the Person receiving the Mony knows very well it is the Masters & therefore it is reasonable he should be answerable to the Master But in the Case at Bar I conceive the Mony & Tob'o was in no sort the Sherifs nor subject to his Disposal (tho' it be true that he is answerable to the King & Public Cred'rs). He had fully authorised the Undersher to receive & pay The Deft. transacted this Matter with the Person so authorised & who alone had a Right to transact it
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If I employ a Factor and he pays his Debts with my Effects what Remedy have I ag't his Cred'rs
[151] Suppose the Undersher had actually reced this Mony & Tob'o & paid the same to the Deft. Could the Sher then have demanded it as Mony reced to his Use I believe not I cannot then conceive any Difference in the Reason of the Thing between actually receiving & paying & discounting as in this Case
This Case is of very general Concern Almost every Man pays his Quitrents &c. to the Undersherif And often no doubt by Way of Disco't where a Man has an Acco't open with the Under- sherif And this I believe is the first Time such a Paiment has been disputed But hereafter it will be unsafe to transact any Business with an Undersherif if the Deft. is chargeable in this Case And I must submit whether such a Determination will not be introductive of a general Inconvenience
But here it is pretended there is a mighty Fraud because the Mony was never actually paid to the Sher I cannot conceive in what this Fraud consists . A public Collector being indebted to a Man appoints him to receive some public Debts & then allows him to apply them in Discharge of his own private Debt Few Men I believe would scruple to do this or think it any Point of Dishonesty or Fraud And as to the Mony not being actually paid That is answered before
The 2. Question is Admitting the Deft. is answerable Whether the Plt. can maintain an Indeb. assumpsit for Mony &c. reced to his Use for the Defts. own Quitrents &c. paid the Undersherif by Way of Disco't as appears in this Case And I conceive he cannot
This Disco't must be admitted to be a Paiment or not a Pai- ment . If it be a paiment the Undersher was sufficiently author- ised to receive them His Discharge we have & there can be no Foundation for this Action as to them If this Discount be not a Paiment as has been strongly urged It must be owned they are still due But then the Remedy to recover them is not by Action but Distress Nay there is an express Law that no Action shall be brought unless the Party be returned insolvent What Pretence then has the Sher to maintain this Action or indeed any Action at all Certainly if these Quitrents &c. are not paid they must be recovered in the Name of the King & the Officers to whom they are due
I conceive the Plt. has no Right to recover any Part of this
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Mony & Tob'o of the Deft. Much less can he maintain this Action for the Defts. own Quitrents And the Law be ag't the Plt. upon either Point Judgm't must be given ag't him the Dam's being entire
Sir J. R. for the Plt.
It was not insisted that this was to be regarded as the Kings Debt But he insisted the Undersherif was no more [152] than a Servant and cited Dalt. Off. Sher. That if a Serv't is sent to receive Mony & gives a Discharge without receiving it that Discharge shall not bind the Master That it was a gen'l Rule a Master was not bound by the Act of a Serv't if the Serv't did not pursue the Authority given by the Master And cited Doctor & Student Dial. 2 c. 42. p. 258. 6. Mod. Ward v Evans. fo. 36.
He sayed this was a Fraud & Covin between the Undersher & Deft. & a covinous Paiment was not good 1. Keb. 300. A man was indicted for paying his poors Rate to an indigent Overseer ag't the Order of the Justices And 5. Co. 95. Goodals Case where a pretended Paim't of Mony to satisfie a Condition was not good
But neither of the Cases seem to the Purpose that in Keb. does not say the Paim't was not good but the Man was indicted for disobeying the Justices Order. And in Goodals Case the Reason given is because an Estate of Inheritance by the Paiment of the Mony was to be devested and therefore it ought to be a true Paim't & Performance of the Condition
Judgm't for the Plt. October 1735.
Lee, Randolph, Grymes Lightfoot, Taylor, Custis
Carter, Diggs & the Gov'r Robinson, Byrd for Deft.
for the Plt. Blair gave no Opinion
For the Point of Master & Serv't see 3. Sal. 234.
Vide Sir J. Randolph's Argument Fr. Plt. No. 56.
DOE Lessee of MYHIL ag't MYHIL.
Edward Myhil seised in Fee devises the Premes in Question to his Daughter Eliz. for Life Rem'r of one Moiety to Edward Son of Lockey Myhil in Tail Male and of the other Moiety to Joshua Myhil in Tail Male with sev'l other Rem'rs over in Tail Rem'r to his own right Heirs. In which Will there is a Clause in these Words " Whereas to my unspeakable Grief my Wife Ann did " some Years past clope from me & hath ever since lived in
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" Adultery & hath lately bore a Child of her Body I not having " had carnal Knowledge of my said Wife for several Years last " past Therefore I do not think fit to give or bequeath any Part " of my Estate real or personal to my said Wife or her Child " The Testor & his Wife Ann separated about 5 Years before his Death 2 Years she [153] lived at her Brothers Afterwards she removed to a House near Mallorys upon his Plantation about a Mile from the Testators where she lived three Years & about four Months before the Testators Death had a Child the Lessor of the Plt. born & soon after the Tes'tors Death she married Mallory Eliz. the Devisee for Life is dead and the Estates tail are all spent and the Lessor of the Plt. claims the Premises as in his Reverter as Heir at Law to the Testator The sole Point therefore in the Case is whether the Lessor be a Bastard or not
It is evident from all the old Authoritys that by the Common Law if the Husband be within the four Seas i.e. within the Jurisdiction of the King of England & the Wife hath Issue such Issue is legitimate & no Proof shall be admitted that it is a Bastard unless the Husband be under an apparent Impossibility of Procreation as but eight Years old or the like. Bract. lib. 4. 278. 279. 1. Inst. 244. A. 1. Ro. Abr. 358. If a Woman elopes & lives in Adultery with another & has Issue this is no Bastard 1. Ro. Abr. 358. 4. 5. If a Feme Covert goes into another Country & takes Husband & has Issue by him the first Husband being within the Seas the Issue is mulier Ibid. 6.
It must be owned however that in later Times the general Rule I first laid down has been understood under some Limita- tion As if the Husband be without the four Seas all the Time of the Wifes going with child tho' he happen to be within just at the Delivery the Child is a Bastard If there be a Divorce a mensa et thoro It shall be intended that due Obedience was paid to the Sentence and in that Case the Issue is Bastard unless Access is proved But if they live separately without Sentence Access shall always be presumed Yet if it is found by Verdict the Husband had no Access the Child will be a Bastard. 1. Sal. 122. 123.
Upon the Reason & Principles of the Common Law I suppose if a Man be within this Colony & his Wife has Issue such Issue is legitimate unless under some of the Circumstances just now mentioned Now in this Case the Husband was within this Colony & lived within a Mile of the Wife & was under no Im-
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possibility of Procreation Here was no Divorce a mensa et thoro Nor was the Separation by Compulsion of any Court but for any Thing that appears it might be by Consent at least it was without Sentence And in that Case Access is to be presumed unless the Jury find there was no Access & that is not found tho' I remember that Point was much laboured at the finding of the Verdict
It will be argued perhaps from the Circumstances of this Case that it ought to be presumed there was no Access The Woman lived upon Mallorys Land & married him soon after her Husbands Death And the Testor in his Will declares that his Wife had eloped from him & had a Child in Adultery & that he had had no carnal Knowledge of her for several Years But I conceive all [154] these Circumstances avail nothing Access must be presumed unless the Jury find otherwise
Neither is there much in these Circumstances What because the Woman lived upon Mallorys Land & he married her soon after her Husbands Death Must it therefore be presumed they lived in Adultery together before Is there any Reason Justice or Charity in such Presumption But admitting that to be true that proves nothing as to the Husbands Access who might come to his Wife especially as they were so near notwithstanding the Adultery between her & Mallory which will not bastardise the Issue if true
Then as to the Testors Decl. in his Will Surely it won't be pretended that is any Evidence or any Ground for a Presump- tion At this Rate the fair Sex will be in a very unhappy Scitu- ation & they will have little Reason to boast of the Indulgence of our Laws to them It shall be in the Power of an ill natured Husband by a Blast of his Breath or Stroke of his Pen not only to ruin their Reputation but also deprive them & their Children of all their civil Rights By the same Rule that this Will is Evidence against the Legitimacy of the Children it would be also of the Wifes Elopement in case of Dower But such Testimony never sure was offered If the Man was alive he could not be a Witness nor would his Oath be taken How much less his Word A Mans Decl. in his Will was never yet thought any Proof of the Fact related There would be much the same reason in it in this Case as to Indict a Man for an Offence & then offer the Indictment as Evidence of the Offence for set aside this Will there is not a Sillable of the Wife's living in Adultery in the
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whole Verdict or that the Husband had not Access It would therefore be absurd as well as full of Mischief & Inconvenience to look upon this Will as any Evidence as to this Point or at all to influence the Determination of it And I hope it will be entirely thrown out of the Question Vi. Macc. R. 439.
And then I take the Case to be very clear for if any Presump- tion is to be made it ought to be in Favour of Legitimation which the Law always favours insomuch that in many Instances no Proof will be admitted ag't it As if a Child is born but one Day after the Marriage & the Child was begot by another such Child is legitimate & no Proof or Averment will be admitted ag't the Legitimacy 1. Ro. Abr. 358. 2. 3. This is certainly as hard a Case as where a Man & his Wife live separate but public Con- venience makes such Institutions necessary & the Judges in their Determinations inviolably adhere to them The Point of Bastardy & Legitimacy depending altogether upon the particular Laws of each Society & differing almost in every Country
Sir J. R. for the Deft. insisted upon 2 Points
1. That the Lessor of the Plt. was a Bastard 2. If he was not [155] yet he was clearly excluded by the Intention of the Testator in his Will to take any Estate in the Premes He agreed the old Law to be as it was opened And sayed it was introduced by the Superstition of Rome upon the Opinion & Doctrine that Marriage was a Sacrament But that since the Reformation the Law had been otherwise taken That. the Cases cited out of Rolle were all before the Reformation except that Fo. 358. 4. which was in the Star Chamber & therefore not of much Authority That Coke built upon the old Authorities but the Judges in later Times had exploded these barbarous & absurd Resolutions And cited a Case in 1717. out of a Book Pa. 94. concerning the Removal of a Bastard from one Parish to another where a Child born of a Wife was adjudged a Bastard tho' she lived all the time in St. Andrews Parish the Husband in St. Brides- But note it appears in the Case the Husband & Wife had not seen one another & so within the Rule in Sal. 123 - He sayed that the Jury having found they separated 5 Years it must be intended there was no Access That a Negative was not to be proved & so the Jury could not find otherwise than they have
He agreed the Will if it stood single would not be Evidence but being supported by other Circumstances ought to be taken Notice of He cited the Case of Reason & Franter for the Murder
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of Mr. Lutterall State Tryals Vol. 6. Fo. Where Mr. Lutterells Declaration after he was wounded being his last Words was given in Evidence And that a Will was the last Words of a Man & ought to be believed especially where it was supported by other Circumstances And so concluded upon the whole that the Lessor was a Bastard
To the 2. Point he sayed it was clearly the Intention of the Tes'tor that the Lessor of the Plt. should take nothing And therefore by the Remainder to his right Heirs he must intend his next Heir exclusive of the Lessor And so the Person who was such next Heir might take by that Remainder and that right Heir in this Case was only Descriptio personæ He sayed the Rule laid down by Coke 1 Rep. 103. Shelleys Case & 1. Inst. 24. b. 26 b. & 164 a. that a Person who will take as Heir by Purchase must be a compleat right Heir was only Cokes Opinion & was a groundless Distinction inconsistent with Right, Reason & common Sense That in Wills the Intention of the Testator is to govern And therefore an Heir Male might take by a Devise tho' he was not a compleat Heir if it appeared to be the Intention in the Will And for this cited 2. Vern. 732. New- comen & Barkham
To the 2. Point it was answered for the Plt. that so wild an Argument could not be expected & therefore nothing had been sayed upon this Head That the Lessor claimed nothing by the Will but was in by Descent That no one could take any Estate by Force of the Remainder to the Tes'tors right Heirs that Remainder being void That it was one of the most known & settled Rules in Law where a Man makes a Gift in tail Re- mainder to his right Heirs such Remainder is void. 1. Inst. 22. b. So it was in this Case And the Reversion is indisputably in the Heir at Law of the Devisor
[156] But admitting the Remainder good The Rule of Law wherever a Person will take as Heir by Purchase he must be a compleat Heir (however slighted) is an established Rule & was never denied & has not only Cokes Authority but Dy. 274. Hob. 31. It must be owned however that in Devises a Man may sometimes take as Heir or Heir Male without being a compleat Heir either from the apparent Intention of the Testor that such a particular Person thall take or where the Word Heir &c. is taken only as Descriptio person@ 1. Ven. 372. Pibus & Mitford 2. Ven. 311. Jones & Richardson. 2. Cases cited in 2. Vern. 732.
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supra. And that Case in Vernon which is no more than this that one as Heir Male tho' not Heir general may take by the name of Heir Male as a suffic't Description of the Person the Testors Intention appearing to be so If it could be pointed out in this Case who the Tes'tor intended by his right Heir these Cases might be somewhat applicable But without that they are nothing to the Purpose However that be the Remainder here in its Creation was void & the Reversion undisposed of by the Will which descended to the Heir at Law upon the Testors Death & accordingly we claim it as Heir
Judgm't Oct. 1735. that the Lessor was a Bastard And that he was excluded by the Will per totam Curiam
Vide Sir J. Randolph's Argument Fr. Plt. No. 52.
OCTOBER COURT MDCCXXXVI.
LEGAN Lessee of CHEW ag't STEVENS.
There has been a Survey with a Jury in the Country & a special Verdict found here Upon which the Case is In Sep'r 1726 .. Col. Taylor a sworn Surveior surveied (or pretended to survey) for the Lessor of the Plt. 1000 Acres of Land of which he returned a Plat & a Pat. was granted June 16. 1727. This Land except about sixty Poles from the Beginning was not marked or meas- ured before issuing of the Pat. And this Chew the Lessor of the Plt. knew The Deft. afterwards surveys 1000 Acres & obtains a Pat. in Sep'r 1728. which takes in Part of the Land within the bounds of Chews Pat. "This was marked and measured & the Surveyor (the said Taylor) told the Deft. the Land was free & not taken up before It appears by the Jurys Report in the Country that the Surveior told Chew when he began his Survey & run the sixty Poles that [157] he could not then finish it being Saturday Night but would when he came up to finish 2. other Surveys he had begun the Day before It appears also that in Jan'ry 1728. when the Deft. first began to seat his Land Chew forewarned him from digging upon the Land in Controversy The Survey is of no other Use than to shew how the Grants interfere And the sole Question in the Case is whether the Grant to Chew the Lessor be good or not
The Objection is that the Surveyors returning a Plat without marking & measuring the Land & that with Chews Privity is a
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false Suggestion And so the King was deceived & therefore his Grant void
This Point has been once already laboured very strenuously & once Yo'r Hon'r has determined that the Grant is good But Sir J. R. is now to convince you of your Mistake However I hope this case will not be drawn into a Precedent that after Judgment is passed a Cause shall be suffered to be argued again because a Lawyer or his Client happen not to be satisfied
It must be my Task to endeavour to shew that this Grant is good And tho' I shall not produce so many Cases as I presume you will be entertained with on the other side I hope to prove 1. That there is no such Deceit in this Case as will make void the Kings Grant 2. That to determine this Grant void will introduce a general Mischief & Inconvenience upon the Subjects here
As to the 1. The King is of that great Eminence & Considera- tion in the Law that many little Defects & Omissions will make his Grant void w'ch in the Case of a common Person have no such Effect Such are Misrecitals wrong Suggestions nonrecitals &c. But the Reason is not as I conceive because the Kings Honour is concerned as was argued last Court But because the King is supposed to intend the great Affairs of Governm't & cannot take Notice of Matters of lesser Moment as a common Person may & ought to do Hob. 224 And the true Reason why the Law adjudges the Kings Grants void in Cases of Deceit are 1. To punish the Party for his Fraud 2. To prevent Damage & Prejudice to the Kings Interest which would often happen if such Grants were allowed Hob. 223.
Yet it is not every Circumstance that strictly may be called Deceit nor every Wrong Suggestion that will make void the Kings Grant and where the King is not deceived in the Cons. in his Title in the Value of the Land or in the Restraint he intended to make for his Benefit Or generally where it is not to the Prejudice of himself or his Subjects the Grant will be good Even false Considerations will not always defeat the Kings Grant As where it is personal & executed As for Mony p'd or Service done tho' the Mony was not actually paid or the Service done the Grant will be good 10. Rep. 67. 68. St. Saviors Br. Patents 4 Mo. 415. Sav. 37. 3. Leon. 248. P1. 455. a. The Reason is tho' this be a Deceit Yet the Law does not esteem it so weighty or material as to destroy the Grant Hob. 222.
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