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 28
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Indeed there will be no End to making Presumptions The
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Jury might find as they did for Want of proper Evidence to prove the Property of the Slaves. Or that the Ex'rs had Debts to pay And then the Legatees had no Right to their Legacies In short Suppositions & Presumptions will multiply without End & therefore I hope they will be entirely rejected
But 2. the Record produced is really no Judgm't Every Judgm't is the Act of the Court and the Law has prescribed certain Forms to be observed in entring them up & which if not pursued the Judgm't is ineffectual not binding in Law but may be revers'd for Error Neither will it be any Bar to a second Action bro't for the same Matter The Words Ideo consideratum est are essential to every Judgm't And the Law is so nice & strict that no other Words tho' of the same Import & Signification are suffic't One Reason given & a good one is that it ought to appear that Judgment was given on due Cons. 1 Inst. 39. The very adding of other Words will make the Judgm't erroneous 3 Danv. 56. pl. [sic.] 21. to 24. Now in the Record before us it is so far from being entered that it was considered that it is not so much as sayed to be ordered Except with Respect to the Lawyers Fee Nor any other Word to shew it was the Act of the Court So that this is really nothing more than an Account of a Trial but no Judgm't at all
[272] Sho'd this Exception be overruled there is still another & a stronger remaining It is not entered that the Plt. shall take nothing by his Bill These are Words so absolutely essential that without them the Judgm't is of no Efficacy at all It cannot be pleaded in Bar to a second Action bro't for the same Matter It may be reversed for Error. It is a known & settled Rule that every Judgm't to be a good Bar to another Action must be a compleat Judgm't in Law both as to the Matter & Manner As to the Matter it must appear that the very Right of the Cause was determined in the former Action As to the Manner It must be entered up in the Form the Law has prescribed Now these Words qd. Querens nil capiat is a Phrase of Art not to be supplied by any other Words & without which no Judgment can be a Bar to another Action Cro. Jac. 284. Leval a Ha : 1 Bro. 81. S. C. 2. Mod. 294. cited Holt R. 552. Fr Holt And this Point I have known adjudged in this Court If then this is not such a Judgm't as would bar the Plt. from bringing another Action in Case this Act had not been made I hope the Act will not be construed to give a Sanction to such Judgments which strictly
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speaking & in the Eye of the Law are really no Judgm'ts at all A 3 Objection to this Record called a Judgm't is that it is ag't Infants & so not final or conclusive upon them The Law is very tender & careful of the Rights of Infants So that no Act done during their Nonage to their Prejudice unless they have a Remedy over is binding upon them Upon this Reason it is there is a Difference where an Infant is Plt. & where he is Deft. Where he is Deft. he may be bound if he defends by Guard- ian & not else but never where he is Plt. When an Infant is sued a Guardian ought to be appointed by the Court to defend him And if he loses his Cause by his Mismanagem't or Default the Common Law gives him an Action ag't his Guardian to have a Recompence in Damages But where an Infant brings an Action Be it by prochein Amie or Guardian (for it may be by either) the Law gives him no Action at all in Case of any Neglect or Default to his Prejudice And therefore no Judgment given ag't an Infant Plt. is binding & conclusive upon him In this last Case the Guardian or next Friend are not appointed by the Court but anyone who will thrust himself into the Office may be so for that Purpose.
I had Occasion in an Argument 2 or 3 Courts ago between Brooking & Dudley (ante 239) to shew the Difference between a Guardian & prochein Ami And that tho' the Offices were often confounded they were really very widely different
[273] It seems however unnecessary at this Time to enter into that Point of Learning. It may suffice I hope to shew an Authority for the Difference I have taken where an Infant is Plt. & where Deft. w'ch if rightly understood will serve for an Answer to any Cases that may be produced to prove the Power & Authority of a Guardian And make it evident they only re ate to Case: where an Infant is Deft. Simpson a Jackson Pa m. 295.
The Law in this is founded upon the highest Reason for how easie would it be by Covin & Collusion to juggle Infants out of their Rights if an Action brought in their Name by a pretended next Friend sho'd be final & conclusive upon them The Infant can have no Action or any other kind of: Remedy It will be no Answer to say there is no Fraud appearing in this Case My Argum't is gen'l that Judgm'ts ag't Infant Plts. are not con- clusive because there may be great Prejudice arising to Infants It is an Argum't ab incoveniente which is suffic't to prove a
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Thing unlawful It concerns all the Infants in the Country And I doubt not will be well considered
Thus Sir I hope this Record is no Bar at all to the Plts. Title to the Slaves in Question 1. It does not appear that the Prop- erty of the Slaves was at all adjudged or determined upon this Trial And the Proviso relied upon is express where the Property has been adjudged 2. Here is really no Judgment in the Eye of the Law Nor would this Record be any Bar to another Action for the same Matter And consequently can be none to this. 3. It is a Judgm't (if it can be called so) ag't an Infant & so not final or conclusive. For all these Reasons I conceive this Record is no Judgm't within the Meaning & Intention of the Proviso & so I pray Judgm't for the Plt.
Oct. 1738. Judgm't was given for the Defend't viz that the Record found was a good Judgm't within the Proviso Which I own very much surprised me And the more as there was not one good Reason or Argument offered on the other Side But the Council for the Deft. seemed to be convinced that the Plt. ought not to be barred by the Record found.
Tayloe Grymes
Carter Robinson
Digges Byrd
Blair & the Governor for the Deft.
Lee Randolph & Custis for the Plt.
[Note in a different hand. W. W. S.]
Q're how this would be if the first Judgm't should be reversed on a writ of error to be brought.
APRIL COURT MDCCXXXIX. [274]
SCARBURY & ANNA MARIA HIS WIFE PIts. ag't.
BARBER Extor BARBER. Deft. in Canc.
Bill sets forth that Plt. Anna before her Marr with Testor lent him divers Sums of Money to pay his Debts viz. in July 1729. 6.191 -10 St. by Bill drawn on Jno. Maynard In Dec'r following 6.30. by a like Bill. In Jan'ry 1731. 6.40. by another Bill & other Sums am'o to 69-9. 6% Curr't & sold him Goods to Am'o 6.7-15. Curr't In the whole 6.261-10 St. & 77. 4. 6%. Curr.
That upon a Treaty of Marr. Testor agreed she sho'd enjoy
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all her separate Estate Notwithstanding the Marr & that he sho'd likewise pay her what he owed and in Apr. 1731. gave Bond to the Plt. in Penalty of £1000. with Condition for Per- formance of said Agreem't which Bond is annexed to the Bill
That the Testor by his Will has only devised to Plt. her separate Estate without directing the Paim't of the Mony he owed before Marr. Therefore to have Satisfaction for that Mony out of the Testors Estate Is the Bill
Defts. Answer. Knows nothing of Testors being indebted to Plt. before Marriage & never heard of the Bond till a Year after the Marr. Denys he knows upon what Acco't it was given Or that there was any such Agreem't before Marr as in Bill Knows the Stock & Cattle raised on Testors Plant'n for sev'l Years both before & after Marr. were used by Plt. and that the Tob'o made on a Plant'n of Defts. descended to him from his Grandmo'r for 4 Years before Marr. were ship'd under Plts. Mark & has heard & believes the Tob'o made on his Fathers Plant'n was ship'd in same Manner & the Produce carr'd to Plts. Acco't
Says Testor ab't six Weeks before his Death told him that thro' Plts. Persuasion he had paid her Son Jn'o Timson 506. in Hopes to get a little Ease but he found there was no such Thing unless he would give all from his Children to hers w'ch he would not do & wished he had not paid the 50£. Made his Fathers Will who directed him to give Plt. everything she was possessed of at the Marr saying it was more than she deserved & but for his Words Sake he would not give her a Farthing more than the Law Besides which he gives her Dower in his Lands
Has often heard his Father complain of Hardships he suffered from Plt. Never saw the Bond but in the Office Believes it to be his Fa'rs Writing: The Condition whereof is thus
" The Cond. of this Obl. is such that if the above bound W. B. " his Heirs, Ex'rs & Adm'rs shall at all Times hereafter suffer " the above named A. M. T. peaceably & qu'etly to keep possess " & dispose of as she shall think fit all & every Part of the Estate " that she is now [275] possessed of both real & personal without " the Molestation of him the said W. B. his Heirs &c. And 'do hereby further oblige myself my Heirs &c. to pay to the "said A. M. T. what I am justly indebted to her Then the " above Obligation to be void &c
Says his Fa'rs Slaves & personal Estate were appraised only
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to 232. 13. 9. Can't tell what his Debts are. Plt. after his Death enter'd into her Dower of his Lands & has all her separate Estate
And upon th s Answer Demurs because the Mony pretended to be lent & the Bond were before Marr. & it does not appear there was any Agreem't the Mony sho'd be paid Notwithstand- ing the Marr. By which Deft. is advised the Bond & all Debts due before Marr. are extinguished at Law And as this Case is ought not to be set up in Equity
The Proofs in the Cause are but few & they are principally about the Mony lent The Plt. has exhibited some Accounts curr't & Bils of Lading a Love-letter from the Testor & the Draught of a Bond formerly offered by him And it is proved for the Deft. that Plt. holds her Dower in Testors Lands & has her separate Estate And that she had two Crops of Testors 7 Years before Marr.
The great Question in this Case is whether the Plt. ought to be paid out of the Testors Estate the Mony she lent him before Marr.
The Equity set up is a pretended Agrem't before Marr that the Testor sho'd pay the Plt. what he owed her Notwithstanding the Marr. This is suggested in the Bill but not proved as I con- ceive
I shall therefore in speaking to this Cause endeavour to shew 1. That there is not any certain or positive Proof of the Agreem't pretended And 2. If there was That the Agreem't is derogatory to the Rights of Marr & such as a Court of Equity will not support. I shall not rely much upon the Demurrer because we are gone into Proofs and the whole Equity of the Cause is before the Court
It cannot I think be sayed that there is any direct or positive Proof of the Agreem't suggested in the Bill The Bond which is alledged to have been given for Performance of the Agreem't has not a Sillable in it of an intended Marr or that the Condition should be performed notwithstanding Marr. Neither is there one Witness who proves any such Thing And the Deft. denies that he knows any Thing of such an Agreem't
It appears indeed from the Papers exhibited that the Testor courted the Plt. many Years before Marr & offered her very good Terms but they were not accepted This was four Years at least before the Marr. And no Proof of any Overtures within those 4 Years or that he continued in the same Mind And yet
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these are the Circumstances relied upon to make out the Agree- m't suggested in the Bill
[276] One of these Papers is a Love letter dated in 1722. 9 Years before the Marr. There is another Love letter without Date & the Draught of a Bond sent in it The Date of the Bond is cut out with Design I suppose to impose it for a Thing of later Date than it really is but the Figure 7 may be seen pretty plainly at the End And so we may conclude it was dated in 1727. 4 Years before the Marr ..
I must submit whether a Man's courting a Woman four Years before he marr'd her & then offering her advantagious Terms is any Evidence of a subsequent Marr Agreem't suggested to be made 4 Years afterwards when there is no kind of Proof that the Courtship continued or that the Man remained in the same Mind And if it be no Evidence as I humbly conceive it is not Then are the Plts. without the least Shadow of Proof of the Agreem't suggested
The most that can be sayed is that these Circumstances make some sort of Presumption that the Bond mentioned in the Bill was for Performance of a Marr Agreem't for it is no necessary Consequence that because a Man once makes an advantagious Offer to his Mrs. that he should be always so dis- posed at any Distance of Time On the contrary we know Mens Tempers & Inclinations are very subject to change & especially in Matters of this Sort when a Mistress is obstinate
The Presumption then in this Case must be very light which according to Sir E. Coke proves nothing at all And if the Differ- ence between the Conditions of the two Bonds be considered it must further weaken the Presumption In that of 1727. Notice is taken of an intended Marriage whereas nothing of that is mentioned in the Bond of 1731. By the first the Testor was to make over all his own Estate as well as the Plts. (a most extravagant Proposal) The Cond. of the latter is only that she shall have her own Estate & he pay her what he owed her. As there is so great a Difference between the two Conditions & one mentions an intended Marr. & the other not As there is no Proof of the Courtships continuing from 1727. to 1731. I cannot conceive that the Bond in 1727. is any kind of Proof that the Bond of 1731. was given on the same Occasion or for the same Purpose but the contrary I think is rather to be presumed
Then the Testors Decl. mentioned in the Defts. answer when
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he made his Will is a further Argument ag't this Presumption After directing a Bequest of Plts. separate Estate & her Dower in his Lands he sayed it was more than she deserved & he [277] would not have done so much but for his Words Sake which plainly imports that whatever Marr. Agreem't he had made was only verbal Or rather that he had only made a Promise to the Plt. (which perhaps might be after Marr) to do what he did.
This Bequest & Decl. of the Testor I presume will have some Weight In the Case of Myhil & Myhil Oct. 1735. where the Question was Whether the Plt. was a Bastard the Decl. of the Husband in his Will that he was so was much relied on And the Case of one Tranter a Bailif try'd for the Murder of Mr. Luttere was urged where Mr. Lutterel's Words in his last Moments were allowed as Evidence ag't the Prisoner Here we have the Will & the last Words of the Testor ag't the Presumption they would set up.
But it will be argued perhaps Quorsum hoc To what Purpose was this Bond given This I think will admit of an easie answer by shewing that the Cond. may have a suffic't Effect & Opera- tion without supposing it to be made for Performance of a Marr Agreem't
The first Part of the Cond. is that the Plt. shall keep possess & dispose of all the Estate she was then possessed of without the Molestation of the Obligor Suppose the Plt. had anything in her Possion which the Testor had or claimed a Right to (And this is no improbable Conjecture Since it appears they lived tog'r & she had the entire Use & Disposal of his Estate) This Part of the Cond. would have its Effect in securing to the Plt. a good Title to the Thing so in her Possion And the latter Part of the Cond. that he sho'd pay what he owed her might be in- tended as a better Security for the Paiment of what he owed
Thus we see this Bond might be given for another Purpose than for Performance of a Marr. Agreem't The Condition does not necessarily import that it was given for that End but may have a suffic't Operation to other Purposes
Since then there is not the least mention of an intended Marr. in the Cond. Since the Cond. may without any forced or strained Construction have a suffic't Operation without supposing a Marr. Agrcem't And since there is no direct or positive Proof of such Agreem't I hope the Agreem't suggested in the Bill shall
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not be supported barely upon a slight Presumption without other Proof Especially when the Presumption is as strong or stronger from the Circumstances that have been taken Notice of that there was no such Agreem't
It is well known that Marr is a Gift in Law of all the Wifes [278] personal Estate That it extinguishes all Debts & Con- tracts between the Husband & Wife And this Right a Court of Equity is always very tender to preserve And I apprehend will never take from the Husband what the Law gives him or set up a Debt w'ch the Marr has extinguished without clear Proof of an Agreem't to that Purpose w'ch I take to be wanting in this Case
But if the Court shall be of Opinion that the Agreem't is sufficiently proved And that the Bond is not extinguished by the Marr Then I must endeavour to shew 2. That this Agreem't is not such a one as a Court of Equity ought to support as being derogatory to the Marr Rights
It will be sayed that Marr Agreem'ts are always favoured which I agree to be true in this Sense that an Agreem't fit and proper to be decreed will receive a favourable Interpretation for the Support of it accordnig to the Intention of the Ptys. But I deny it to be an universal Rule that all Marr. Agreem'ts are to be favoured Because there are some of such a Nature that a Court of Equity will not support them at all And this I take to be of that Kind
The usual Method in Marr Contracts is to make Use of a third Person as a Trustee However I will not pretend to say but that an Agreem't between the intended Husband & Wife with- out the Intervention of a third will sometimes be supported in Equity And that whether the Agreem't be by Promise Articles or Bond But then
If the Agreem't be between the Husband & Wife alone I take a Difference where the same is to have Exon during the Coverture & where the Exon of it is future to the Marr. Of the first Kind are such where the Husband agrees that the Wife shall have any Thing to her own Use or at her Disposal during the Coverture The latter Sort are where the Husband agrees to leave his Wife so much at his Death That she may dispose by Will or the like In the first Case as the Agreem't is without Question extinguished at Law So I take it a Court of Equity will never set it up Because it is derogatory to the Rights of Marr & in a Manner inconsistent
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with the Nature of it For by the Marr. the Law puts the Wife & every Thing she has under the Power & Controul of her Husband And consequently an Agreem't to suffer her to dispose of Mony during the Coverture must derogate from & be inconsistent with the Husbands Power & the Wifes Subjection But in the 2. Case I take it the Agreem't is neither extinguished [279] at Law or in Equity It is only suspended during the Coverture And after the Death of either Party may be set up either at Law or in Equity as the Case may require
This will appear very evident from the foll. Cases Clark a Thompson Extor of Isaac Cro. Ja. 571. Assumpsit in Cons. Plt. would marry Testor he would leave her worth 500£. It was objected the Promise was extinguished by the Marr. but not allowed Because it was not a Duty in the Life of the Husband And Judgm't for the Plt.
Gray a Acton 1 Sal. 325. a Bond was given before Marr. from the Husband to the Wife with Cond. if she survived & he left her 1000£ to be void Holt C. J. was of Opinion the Bond was extinguished by the Marr. being a present Debt and the Cond. was collateral but allowed a Cov't or Promise to such Effect had been good because they raise no present Duty But two other Justices held the Debt was only suspended because it was not paiable during the Coverture & was only a Debt on Con- tingency
Thus at Law we see if the Agreem't is not to have Exon during the Coverture it is not extinguished by the Marr. And we shall see presently that Equity follows the Law
Darcy a Chute 1. Ch. Ca. 21. The Plt. being a Widow & seised of a Jointure Mr. Chute the Defts. Father before Marr. with her agreed by Decd betw. them that it should be lawful for her during the Coverture to receive & dispose of the Rents of her Jointure The Court declared that the Agreem't before Marr. with the Plt. herself was immediately extinguished by the Marr. & refused Relief Pridgeon a Pridgeons Exors 1 Ch. Ca. 117. An Agrem't was made by Plt. & others on her Behalf before Marr with Testor that notwithstanding the Marr. the Rents & Profits of all her own Estate & what personal Estate & goods she had should be at her own Dispose It was held by the Keeper (Bridgman) assisted with two Judges (Hales & Archer) that the Agreem't was extinguished by the Marr And Hales takes the Difference I rely on betw. an Agreem't for any Thing to be done future to
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the Marr. & where the Agreem't is to have Exon during the Coverture In the first Case he says the Agreem't is not ex- tinguished by the Marr. but is in the latter I will beg Leave to read the Case as I presume it will be satisfactory to the Court to have that great & good Mans Opin. in his own Words
Thus it appears the same Distinction is kept up in Equity as at Law If the Agreem't is extinguished at Law Equity will not set it up If it be not extinguished at Law as where the Exon is future to the Marr. There is no Doubt but Equity will decree it. Which is [280] all that is proved by the Cases cited on the other Side And this Difference well considered reconciles all the Cases we meet with in the Books upon this Subject tho' at first View they may seem to clash & contradict one another
The Agreem't in this Case as set forth in the Bill is to have Exon during the Coverture It is that the Plt. shall keep & dis- pose of her own Estate And the Testor pay her what he was indebted to her And so I apprehend it is not such an Agrem't as a Court of Equity will support
It would indeed be the greatest Absurdity that such an Agre- mt. as this sho'd subsist after Marr for every Debt of the Wife vests in the Husband by the Marr. And so the same Pson would be both bound to pay & intitled to receive if the Debt subsisted For this Reason it is & for avoiding this Absurdity that the Law extinguishes the Debt And the same Reason will hold good why it should not be set up in Equity And I believe I may venture to say there is no Instance where a Court of Equity has set up an Agrement of this kind but they have often refused so to do as appears from the Cases cited
Obj. Haymer a Haymer 2 Vent. 343. Agrem't between Husband & Wife before Marr. that he sho'd settle Lands on them & the Heirs of their Bodies Decreed ag't the Heir of the Husband This within my Distinction for here was nothing to be done during the Coverture inconsistent with the Marr. Rights or derogatory from them
Cotton & Cotton 2 Vern. 290. A Woman Extrix of a former Husband lends 1006. to A. & B. & took a Note for it in her own Nanie & a Bond in Trustees Name & afterwards marr'd B. It was held this Debt was not extinguished - The Report is short & the Reasons of the Judgm't not given But I take the Reason it turned upon was because the Woman lent the Mony as Extrix And so the Debt was not extinguished at Law the Husband
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being indebted to her in auter droit as our Books phrase it Vide 1 Sal. 326 - But here is nothing of a Marr Agrem't in this Case And so nothing to the present Argum't If any thing It serves to shew that upon these Occasions Law & Equity go hand in hand
Acton & Peirce 2 Vern. 280. is a Bond to the Wife to leave her 1000£. In which Case it is not extinguished either at Law or in Equity.
2 W'ms 243. S. P. Cannel vs Buckle.
Fursor a Penton 1 Vern. 408. Cov't betw. Husband & Wife before Marr. that she should dispose 300£. notwithstanding the Marr The Mony was lodged in a Trustees Hands & the Husband brings a Bill ag't him for it suggest'g the Cov't was [281] extinguished by the Marr The Trustee in his Answer says it is hard a Trust sho'd be defeated because the Agreem't was improvidently made between the Husband & Wife The Reporter says the Court inclined to dismiss the Bill but there is no Resolution - This Case not being adj'd can be of little Weight But it is easie to distinguish it from the Cases cited There was a Trustee before the Court with a Sum of Money in his Hands Upon which the Court could easily lay their Hands And as all Trusts are Creatures of Chancery the Court might perhaps have taken upon them to direct the Paim't of the Mony according to the Trust without Regard to the Informality of the Agreem't But here is not Trust or Trustee in the Case before us And so the Cases can in no sort be compared tog'r
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