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 17
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5. Admitting the Grant to Smith is not good Then it is to be [167] considered Whether the Possion of the Lessor of the Plt. above 20 Years before the Defts. Entry was not a Bar to that Entry & gives the Lessor a good Title in this Case
By the Stat. 21. Jac. c. 16. s. 1. 2. which are enacted here toti- dem verbis 9. Ann. c. 13. (a) Any Person having a Right of Entry must make that Entry within 20 Years after the Title descended or accrued or is barr'd from such Entry With the usual Savings to Infants Feme-coverts &c. who may enter within ten Years after the Disability removed This Act being express that the Party shall be barr'd if he does not make his Entry within 20 Years A Possession of 20 Years is compared to a Descent that totls Entry And therefore if a Man has been so long in Possession & another enters upon him & puts him to his Ejectment That Possession shall be as good a Title in him (tho' Plt.) as if he was Deft. & still in Possion because the Defts. Entry was not lawful 2. Sal. 421. Stokes a Berry There is another Rule too that if a Man has a prior Possion & another enters upon him without Title the Priority of Possion is a good Title ag't such an Entry Vaugh. 299. Craw a Ramsey 2. Saund. 112. The Lessor of the Plt. & those he claims under were in Possession from the Time of Smiths Grant in 1705. till the Defts. Entry in 1729. w'ch is 24 Years And this Possession is a good Title unless some Incapacity has intervened in the Deft. or those he claims under Admitting any Title does appear for him And if no such does appear Then the Priority of Possion is a good Title ag't the Defts. Entry without any Title at all, Lege Salk. Because I would .
(a) It is not so. See the Stat. & the Act.
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not take up Time unnecessarily I will agree that if Behethland had a good Title in her at the Time She devised to her Daughter Eliz Our 20 Years Possion will not avail because Eliz. in whose Time our whole Possion was has been under the incapacitys of Infancy & Coverture during all that Time But I hope it is clear she had no Title after the Grant to T. Gilson And then tho' the Seating in 1692 should be taken as a Performance of the Condition of the 2. Grant & so the Grant to Smith is void Yet the Deft. having no Title under T. G. Our Priority of Possion is a good Title ag't his Entry At least the 20 Years Possion is undoubtedly a good Title ag't T. G. & all claiming under him there appearing no Incapacity as to them
Randolph for the Deft. sayed the Question was whether the 2 or 3 Grant were good That where an Estate was granted upon Condition tho' the Condition was broke the Estate continued till Entry of the Grantor And where an Entry was necessary in the Case of a Subject an Office was so in the Case of the King There- fore that the Breach of the Condition of the first Grant must be found by Office before the Estate of the first Grantee was de- termined That it did not appear in this Case by any Proof that the Condition of the first Grant was broken before making of the 2. Grant nor even so much as that the Party was summoned which was certainly requisite according to natural Justice but the 2. Grant might be made without any Enquiry into the Truth or hearing the Party as Grants frequently [168] were in old Times & then it is certainly void He, cited Pop. 53. to prove that an Office in the Kings Case countervailed an Entry in the Case of a Subject (Quære of this for by Pop. 26. there must be an Entry after the Office) He compared this to the Case of Carter & Baylor tho' there is really no Kind of Similitude be- tween'em. That Case which happened in [sic] was in short this Edward Hill obtained a Patent in 1683. for 2717 a. In 1693. he gave the Land to Ed. Chilton & Hannah his Wife (who was his Daughter) & their Heirs . In 1698 Ed. Chilton (alone) sold to Baylor who cleared enough to save the Land according to the Law then And afterwards in 1704. obtained a new Grant of the same Land as lapsed from Ilill Hannah survived her Husband Ed. Chilton & Mrs. Carter was her Heir And so if the Grant in 1704 to Baylor was not good had an undoubted Title And it was adjudged that Grant was not good the Land being saved before and tho' it was saved by a Stranger not the Grantee
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or those who claimed under him it should enure to the Benefit of those who had Right
Judgm't for the Plt. October 1735 by the Opinion of Lee, Tayloe, Robinson, Byrd, Blair & the Governor
Randolph, Custis, Digges con.
Vide Sir. J. Randolph's Arguments Fr. Def. 18º [sic] 57.
DOE for FITZHUGH ag't BURWELL.
The Lessor of the Plts. Title.
Thomas Wilkinson obtained a Pat. dat. June 8. 1662 for 6000 acres of Land formerly granted to him by Patent June 10. 1658. Part of which Land he sells & by his Will Apr. 25. 1688. devises the Rest to his Wife Ann & Daughter Eliz. and if his Daughter died before 14. then all to his Wife in Fee The Dau'r died before 14. After whose Death the Wife (then Ann Goodall) by Deed Aug. 29. - gives the Premises devised to her to her Son-in-Law W'm Thomas & Hannah his Wife her only Daughter & their Heirs
Thomas & Ux'r by Deed Oct. 26. 1692. sell to Wm. Fitzhugh the Father of the Lessor of the Plt. who devised the same to him And he & his Father have been in Possession ever since At least above 20 Years it appears by the Depcons before the bringing this Suit There is no Title found for the Deft. And his first clearing upon our Land was about 15 Years before this Suit.
The Objection to this Title is that Thomas & his Wife were [169] Jointenants and she was not privately examined upon passing the Deed to Fitzhugh So it was merely the Deed of the Husband And he alone could not make a good Title Not even for a Moiety but the Wife after his Death might enter into the whole for they took by Entierties 1. Inst. 187. 188. 299. b. 351. a. 326. a.
It must be owned our Title does not appear indefeazable Yet I conceive our Possession above 40 Years under the Grant from Thomas & his Wife is a good Title to maintain an Ejectm't
If the Husband survived we have an undoubted indefeazable Title for he being Jointenant with his Wife would have the whole by Survivorship We have his whole Right and he or his Heirs can never claim ag't his Deed Now as at this Distance of Time it can't be proved whether he or his Wife died first it ought to be presumed that his Wife did in Favour of so long a Possession
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for a continued & quiet Possession is a violent Presumption of a Title And that in the Law is taken for a full Proof 1. Inst. 6. b. But further this Possession would bar even the Wife & her Heirs (admitting she survived) in an Ejecm't unless she or they were under some Incapacity 20 years Possession is a good Title in Ejectment The Reason is that by the Act of Limitation a Man is barr'd of his Entry after 20 Years And therefore so long a Possession is compared to a Descent that takes away an Entry 2. Sal. 421. Stokes ag't Berry. Vide Armistead & Newton ante 163.
Our Title then may possibly be indefeazable and is undoubtedly a good Title ag't all but the Heirs of the Wife especially ag't the Deft. who ent'red without any Title at all It appears the first Entry (or rather Trespass) of the Deft. was but about 15 Years ago & that only by clearing some Land And there is no Title or Pretence of Title set up in the Deft. If this Clearing a little Ground within our Bounds is adjudged a Disseisin a Man in this Country will hardly know when he is in Possession of Land I conceive the Deft. can be regarded only as a Trespassor & then surely our Possession is a good Title ag't him But if this is looked upon as an Ouster of us yet we had a prior Possession And that alone is a good Title ag't one entring without any Title at all Vaugh. 299. Craw & Ramsey. 2. Saund. 112.
It seemed to be agreed in the Case of Woodford & Corbin that if it appeared in the Verdict Woodford had had Possession of the Land in his Pat. (tho' not of the Spot in Controversy) he had a good Title And the Deft. was but a Trespassor And because his Possession did not appear upon the Verdict Judgm't was ag't him. Now as our Possession is sound I hope Judgment will be for us.
This Cause was agreed by the Parties.
Appeal from Stafford [170] LUTWIDGE a FRENCH
The Appellant brought an Action at Law ag't the Respondent upon a Bond in the Penalty of 12000 1b. Tob'o conditioned for Paim't of 6000 1b. Tob'o to which the Deft. pleaded Paiment. There was a Verdict for the Plt. and he had Judgm't for the Penalty to be discharged on Paiment of the Principal & Interest
The Respond't exhibits a Bill to be relieved ag't this Judgm't setting forth that he by his marriage with the Widow of one
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Triplet became possessed of the Estate belonging to his Children And being willing to do the best for them in 1720 bound out Francis Triplet (whom he makes a Deft.) to the Deft. Lutwidge who was Master of a Ship And the Bond aforesaid was given for Paim't of the Apprentice fee viz. 6000 1b. Tob'o which Triplet promised to allow out of his Estate when he came of Age
That the Deft. Lutwidge neglected to instruct Triplet according to his Indentures so that he left him 5 or 6. Months before his Time out & was so ignorant in his Business he was forced to turn Bricklayer to get a livelihood
That in 1725 or 26. the Complt. performed great Services for Lutwidge of more than the Value of 6000 1b. Tob'o for w'ch he charged nothing in Regard of his afs'd Bond That the Deft. by letter dated desired the Plt. to pay a small Sum of Mony for him & he would make him a Present of what else was between them which Sum the Plt. paid That afterwards the Plt. had considerable Dealings with the Deft. & settled several Acco'ts particularly one for 24626 1bs. Tob'o & 23.1 1.4. & the Bond never brought to Acc't So that Plt. never expected to be charged with it Apprehending the Deft. intended to acquit the same for the Plts. great Services
That the Deft. Triplet after he came of Age recovered his whole Estate of the Plt. without allowing the said 6000 1b. Tob. And Plt. therefore prays to be relieved either against the said Judgm't or ag't Triplet
The Deft. Lutwidge pleads the Verdict & Judgm't af'd in Bar And also demurs for that there is no Equity in the Bill That the Plt. may have Remedy for his pretended Services at Law That the Court cant decree a Performance of the Agreem't concerning Triplets Apprenticeship nor assess Damages for the Nonperform- ance or for the Plts. pretended Services. That the Deft. Lutwidge is no Way concerned in the Transactions between the Plt. & the other Deft. Triplet nor ought they to be a Bar to his having the Effect of his Judgm't
The County Court overruled this Plea & Demurrer w'ch I conceive is Error
As to the Plea If we may credit Sir E. Coke & other old [171] authorities Anciently it was held that after Judgment at Law a Court of Equity could not interpose upon any Pretence whatsoever 3. Inst. 119. &c. That the Stat. of Premunire 27. E. 3. 1. prohibits it under great Penalties And the 4. H. 4. c. is
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express that after Judgm't the Parties shall be in Peace till the Judgment is undone by Attaint or Error Thus the Law was taken for some Ages & there are sev'l Instances where in the hardest Cases the Chancery refused to relieve after a Judgm't at Law And many have been convicted of a Premunire upon the 27. E. 3. for suing in Chancery after such Judgm't.
But this Point coming in Question in the Time of James 1. It was by his Command referred to the Attorney & Sollicitor gen'l & other able Lawyers who certified their Opinions that the Chancery might relieve after a Judgment at Law And that the said Statutes 27. E. 3. & 4. H. 4. did not prohibit it And thus it rested for 40 Years till the 22. Car. 2. c.
When An Action was bro't on the 27. E. 3. for suing in Chancery after Judgm't at Law The Case is King ag't Standish & is reported in sev'l Books. 1. Sid. 463. where it seemed to be the Opinion of Keling C. J. & Twysden that the Deft. had incurred the Penalty of the Stat. By 1. Mod. 59. it was adjourned for the Opinion of all the Judges And by 1. Lev. 40. Hale being then C. J. it was his Opinion that the Case was not within the Statute And so nothing further was done in it It was Hales Opinion that the 27. E. 3. did not prohibit the Chancery from examining Judgm'ts at Law & with good Reason because the Chancery as a Court of Equity was not in Esse at that Time but yet he was of Opinion that the 4. H. 4. did restrain the Chancery from examining Judgments at Common Law as appears in Cole & Forth. 1. Mod. 94.
However it must be acknowledged that of late Days the Chancery as it has extended its Power & Jurisdiction in other Instances insomuch that almost all Causes of Moment are first or last determined there So also in this particular of relieving after Judgments at Law Yet this has been very sparingly done where there has been a Verdict & the Merits of the Cause fairly tried as in this Cause And there is less Reason the Chancery should exercise such a Power here where the strict Rules of Law are not very rigidly adhered to either by Judges or Juries And the Deft. having the Liberty of Discount which he has not by the Laws of England he has many Advantages in his Defence which he could not have in England And tho' it might be mischievious to carry the Point so far as never to give Relief after a Verdict or Judgm't Yet on the other Hand it would be much more mis- chievious to countenance it upon all Occasion unless there is
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some very apparent Wrong or Jnjustice in the Case And that for 2 Reasons mentioned by Sir E. Coke 3. Inst. 123. 1. That it will draw Matter determinable at the Common Law ad aliud examen which should be tried by a Jury by the fundamental [172] Laws of England 2. Every Plt. will choose rather to begin in Equity whether he must come at last to the Subversion of the Common Law which last Mischief is found pretty true in Ex- perience as I have already observed.
Now it will be proper to observe what is the Wrong & Hardship complained of here to induce this Court to unravel a Judgment upon a Verdict at Law And it really amounts to no more that this that the Compl't performed great Services for the Deft. for which he charged nothing in Expectation the Deft. would not charge him with the Bond upon which the Judgment was obtained This is the only Pretence that has any Appearance of Hardship As to the other Suggestions in the Bill concerning the Nonperformance of the Articles of Apprenticeship & Triplets Promise to allow the 6000 1b. Tob'o out of his Estate &c. I shall shew presently they cannot be any Reason for unravelling this Judgment
And as to these pretended Services if there were really any such the Compl't might have made Proof of them upon the Trial at Law And the Jury would have made an Allowance by Way of Discount Perhaps this was done & the Jury thought he deserved nothing If it was not it was the Compl'ts Neglect And Equity will not relieve ag't such Negligence 1. Ch. Ca. 43.
But besides he does not pretend the Deft. ever promised to give up this Bond in Cons. of those Services tho' he would en- deavour to infer as much from a Letter wherein the Deft. desires him to pay a small Sum & that he would make him a Present of what else was between them But if he had intended to make so considerable a Present as 6000 1b. Tob. he would hardly have mentioned it so slightly the Letter must therefore be taken to relate to the subject Matter upon which it was written viz an Accot. of some Transactions between them that Year And this can never be taken as a Rel. of the Bond either in Law or Equity.
There being therefore really no Equity in the Bill there is likewise a Demurrer to it for that Cause for
1. Admitting there were really Services performed this Court cannot assess Damages for those Services nor give the Plt. a Recompence for them The proper & natural Remedy is an
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Action at Law where a Jury will give as much as he reasonably deserved It is a known & settled Rule that a Court of Equity cannot assess Damages Nor give Relief where the Plt. can have Remedy at Law Now this Judgm't upon the Bond will be no Bar to the Plts. recovering at Law for his Services And therefore this Pretence can be no Reason for impeaching this Judgment.
2. The next Pretence is that the Deft. did not perform the Articles of Apprenticeship but I would fain know what the Plt. has to do with that These Articles are between the Deft. Lutwidge [173] & Triplet And Triplet is intitled to a Recompence for the Breach of them if any be But suppose the Plt. was [sic] what can a Court of Equity do: To decree a Performance of them is impossible Nor can they assess Damages for the Breach And I suppose it will not be thought reasonable the whole Ap- prentice-fee should be lost because some particular Part of the Articles was not performed The Remedy therefore here must be at Law to recover Damages for the Breach
3. The last Pretence is certainly the strangest in the World It is a Promise made by an Infant which for anything that is pretended Lutwidge was an entire Stranger to Can that then be a Reason that he should not recover at Law because a third Person for whom the Mony was advanced promised to repay. it Besides this Promise made by an Infant is ipso facto void Nor did Equity ever enforce the Performance of such a Promise And as, to Triplets recoving his whole Estate without allowing for this Tob'o it is nothing to Lutwidge who really gave a valuable Cons. for this Bond according to the Plts. own Shewing viz. by taking Triplet Apprentice
And so I hope it is evident there is no Equity in the Plts. Bill I therefore pray that the County Courts Order may be reversed that the Injunction may be dissolved And the Plt. have the Effect of his Judgment at Law.
Vide 1. Vern. 176. & 316. where Equity refused to relieve after a Judgment at Law
FIELD a COCKE
This is an Action upon the Case for an Escape upon mesn Process A Verdict is found for the Plt. but this Point was reserved to be argued whether Pitchford the Prisoner who escaped was so delivered by Winn the old Sherif (in whose
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Time he was first committed) to the Left. the now Sherif as to make the Deft. chargeable for this Escape
The Case is thus the Day the Deft. was sworn Winn the old Sherif brought the keys of the Prison into the Court House where the Deft. was & laid them upon the Table saying there were two Prisoners in Goal Upon which the Deft took up the Keys Pitchford was one of these Prisoners & remained in Goal 61 Days afterwards during w'ch Time he was fed by the Defts. Order till he broke Prison
It is clear from these Circumstances the Deft. had Pitchford [174] in his Custody at the Plts. Suit But it will be objected I suppose that the old Sherif ought to have delivered him over to the Deft. by Indenture Without which in Judgment of Law the Prisoner is not in Custody of the now Sherif And
I agree this is a formal Circumstance required by Law in some Cases that is where Prisoners are in Execution I call it a formal Circumstance because it seems to have no Foundation in natural Justice for if the Prisoner be really delivered & the new Sherif has him in Custody & knows for what Cause There can be nothing sayed why in Reason he ought not to be chargeable for his Escape as much as if he was delivered over by Indenture However I must allow this Ceremony is made necessary by our Law but then it is only as I sayed where Prisoners are in Exon
I must own upon the best Search & Enquiry I have been able to make I do not find any Case where it is expressly & in Point resolved that Prisoners not in Exon need not be turned over by Indenture But there are sev'l Cases where by necessary Inference I conceive the Law must be taken to be so And the Reason why we do not find it expressly resolved may be because it is a well known settled Point & so has never been brought in Question
Sr. Thomas Reeds Case 2. Ro. 116 who was indicted tor suffer- ing a Prisoner attainted of Felony to escape An Exception was taken to the Indictment that it did not appear he had the Custody of the Prisoner by Indenture & then he ought not to be charged for his Escape But it was held if the Sherif took upon him the Custody of the Prisoner without Delivery by Indre & suffer him to escape he may be indicted because it is the Suit of the King the Case says This is an Instance where a Sherif may be chargeable for an Escape tho' the Prisoner be not delivered by Indenture and proves that Circumstance is not always necessary
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King ag't Sir Eusebie Andrews Cro. Jac. 380. One Burdet was arrested upon a Latitat at the Plts. Suit by Sir John Iseham the old Sherif & by him in exitu ab officio left in Prison & de- livered to the Deft. who suffered him to escape And without Argument it was adjudged for the Plt. Here was no Delivery by Indre the Prisoner was only left in Prison The Case is some- what obscurely reported and the Manner of Delivery does not seem to be directly brought in Question but we may presume it would have been insisted on if a Delivery by Indre had been necessary And the Decision of the Case without Argument makes the Inference very strong that the Law was clear & settled in every Point that could be insisted on Vide Dalt. 16. Notice by Word if accepted suffic't
Mr. Dalton in his Office of Sherif & all other Authors I have read on this Subject say the old Sherif must assign over by Indenture all Writs not executed by him & the Bodies of Pris- oners in Exon Now if Prisoners not in Exon were also to be so assigned the Distinction would be useless & we should be told [175] that all the Prisoners in the Prison must be so assigned All the Cases I have ever read upon this Subject are where the Prisoners were in Exon which I think is a pretty Strong Argu- ment on my Side since it is reasonable to suppose there have been Instances enough of Prison'rs not in Exon turned over from one Sherif to another that have afterwards escaped And consequently this Point would have come in Question if it had not been clear & settled as I sayed If there is no judicial Reso- lution and I am pretty sure there is not nor any Author who expressly says a Delivery by Indre is necessary where Prisoners are not in Exon since it must be allowed to be only a meer Piece of Ceremony I hope it will be carried no further than the Cases carry it
Another Argument I draw from the Form of the Indenture from one Sherif to another which we find in the Books Dalt. 13. In which there is no Mention made of any but Prisoners in Exon Now if it was usual or necessary to assign those not in Exon we should certainly find the Form & Manner how they should be recited in the Indre as well as those in Exon An Argum't from Precedents is very frequent in our Books & Sr. E. Coke says is of great weight in the Law and will be so much the greater in this Case as the Precedents are consistent with what all the Au- thors who treat on this Subject say they speaking only of Prison-
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ers in Exon which would be a needless Distinction as I have observed if all Prisoners were in the same Predicament as to this Matter
It may be difficult to assign a Reason why the Ceremony is requisite in one Case more than the other but it is as difficult to give a solid Reason why it is requisite at all The principal one given in the Books is because the new Sherif without Notice what Prisoners are in Goal & for what Cause will not know whether it be lawful for him to detain them or when he may discharge them. But if he has such Notice without Indenture the End & Intention of the Law in requiring an Indre is answered And yet it is certain the new Sherif is not chargeable for Prisoners in Exon unless they are assigned by Indre to him All that can be sayed is that it is a meer formal Circumstance that has ob- tained its Force from long Usage & Custom And being nothing more than a Piece of Ceremony ought not to be carried further than to those Cases where the Law is clear & express And I am sure it is not so in this Case but the contrary may be rather inferred If then this Case is to be determined upon the Reason of the thing & the Principles of Natural Justice Since one of the Sherifs must be liable to the Plts. Action I shall submit whether the old Sherif who was in no Fault having given the Deft. suffic't Notice Or the Deft. the now Sherif who actually had the Prisoner in Custody a long time & then suffered him to escape ought to be chargeable
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