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 3
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"The Lords of the Comittee pursuant to his Majesty's said "Order did on the 25th of Nov'r last, take the s'd Appeal into "Cons & upon hearing the Parties therein concern'd thought "proper to refer the Accounts in Qucon to the Exaicon of four "Merchants resident in London who having made their Reports "thereupon the Lords of y'e Comittee this Day took the whole "Matter into Consideration & having heard all the Parties con- "cern'd in the said Appeal by their Council learned in the Law "and finding that the said Judgment was erroncous do agree "humbly to offer as their Opinion to your Excellencys that the "said Judgm't given in the General Court of Virginia on the "24th of October 1723 should be reversed and Judgment entered "up for the Appellant in the sum of 24601b Damages, and that the "said Sum should be recovered out of the Assetts of the said 1 Obscure, but supposed to be abbreviation for inter alia. W. W. S.
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"Col'o W'm Randolph Deced and 101b Sterling Costs ont of the "said Assetts, if the Respondents have Goods of the Testator "to that Value, if they have not the Costs to be recovered out "of the proper Goods of the Respondents.
Their Excellencys the Lords Justices in Council taking the said Report into Consideration, are pleased to approve thereof and pursuant thereunto to order as it is hereby ordered. That the Judgm't given in the General Court of Virginia on the 24th of October [22] 1723 be reversed and that Judgment be entered up for the Appellant in the Sum of 2460 1b Dages & that y'e s'd Sum be recovered out of the Assetts of y'e s'd Col'o William Ran- dolph Deced & also 10 1b Sterling Costs out of the Assetts if the Respondents have goods of the Testor to that Value & if they have not that then the Costs be recovered out of the proper Goods of y'e Respond'ts. Whereof the Governor, Lieutenant Governor or Commander in Chief of his Majesty's Colony of Virginia for the Time being and all others whom it may concern are to take Notice and govern themselves accordingly.
Temple Stanyan
Qu. Upon this Order what Method is most proper for the Perrys now to take in Ord'r to recover the Sum adjudged them out of Col'o Randolph's Assetts in Virginia in y'e Hands of his Ex'rs there.
I think it is adviseable that a Bill should be brought in the Name of Extors of Mr. Perry to discover the Assetts of Col'o Randolph and how they have been applied and to have the 2460 lb paid out of them And if by the Laws of Virginia real Estates are subject to the Payment of Debts by simple Contract it is proper that such Bill be brought against the Heir at Law and Devisee of the real Estate, as well as against the Executors of Col'o Randolph and all others who have in their Custody any Part of the Assetts of Col'o Randolph.
C: Wearg 31st July 1725
[Note by W. G.] [1726? See ante 20.]
1. By an Act past in the 9th year of his present Majesty intituled an Act for enabling his Majesty to put y'e Custom of Great Britain under the Management of one or more Comissioners. and for ascertaining y'e Duty's on Tobacco &c. it is inter al Enacted that after y'e 1st June 1724 no Tabacco shall be im-
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ported stript from the Stalk or Stem But such Tobacco shall be forfeited &c. put [sic] the Act.
Q'r. If by this Act or any other the Importation of Cut Tobacco which is cut and made ready for smoaking in Virginia or manufacturing thereof into Snuff & such cut Tobacco or Snuff sent and imported in Great Britain can or ought to be for- feited. . .
I am of Opinion that by the above mentioned Act of the 9th Year of his Majesty's Reign the Importation of Tobacco, cut & made ready for smoaking or for manufacturing into Snuff into England is prohibited, and if imported is liable to be seiz'd. But I apprehend [23] that Snuff, tho' made of Tobacco, yet being a Commodity of another Species is not by Virtue of that or any other Law prohibited.
P: Yorke Dec'r 31st 1725
By an Act of Assembly in Virginia a Duty or Impost of 2/s for every Hogshead or other Cask of Tobacco ship'd on Board any Vessel for Great Britain is chargeable upon y'e Proprietor of such Hogshead or Cask of Tobacco.
Qr. Whether Snuff made in Virginia being subject to a par- ticular Duty by the Act of Parliament in Great Britain & thereby distinguished as a different Species from Tobacco can or ought to be subject to the Impost of 2/s pr Head or Barrelin Virginia the same as Tobacco or ought not to be exempted from such Duty.
The Construction of this Act of Assembly of Virginia seems to be more doubtful than that of the English Act of Parliament above-mentioned, because there is not distinct Duty laid upon Snuff in Virginia as there is in Great Britain." But if since the making of that Act of Assembly, the Duty has never been levied upon Snuff, I apprehend that it ought to be taken not to be within the Act, provided the Snuff be compleatly manufactur'd and perfected, and not only Tobacco prepared to be manu- factur'd into Snuff.
P. Yorke
Jan: 13th 1725
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VIRGINIA COLONIAL DECISIONS
SIR ROBT. RAYMOND'S OPINION IN A CASE SENT FROM VIRGINIA IN 1722.
CASE INT HALLOWS EJECTMENT UPON SPECIAL VERDICT & MANLY
John Hallows late of Rachdale in the County Palatine of Lancaster, was seized of 2400 Acres of Land in Virginia & died so seized, leaving Issue, Restitute his Daughter & Heir. Resti- tute Hallows entered and intermarried with one Whiston & by him had Issue Restitute her Daughter and Heir and died seized. Restitute Whiston entered and intermarried with one Thomas Steel and by him, had Issue Thomas Steel her eldest Son & Heir; And afterwards intermarried with one Manly. and had issue two sons by him John and William Manly And being a Widow at her Death made her last Will & Testament in Writing bearing Date the 30th Day of January 1687 [24] in these Words, “ I " Give & Bequeath to my Son Thomas Steel that Tract of Land " I now live on (y'e Land in Dispute) to him and his Heirs " forever. Item it is my Will that my three Children with their " Estates remain in the Hands of my Ex'r till they shall come " of the Age of 16 Years & then to have their Estates; and the " same Day made her Codicil in these Words "It is my Will " that if my Son Thomas Steel die in his Minority before he be " of Age to enjoy my within mentioned Land, that, then my " other two Sons, John & W'm Manly shall have the said Land " equally to be divided between them & their Heirs forever. Thomas Steel at his Age of 16 entered into the Lands and took the Profits thereof, and lived till he had almost attained his Age of 21, & died without Issue; After whose Death John Manly entered into the Lands and died in Possession leaving Issue the Def't. The Lessor of the Pl't is Samuel Hallows Son & Heir of Matthew Hallows, who was Son & Heir of Samuel Hallows who was eldest Brother of the said John Hallows.
Q'r. What Estate Thomas Steel had in those Lands by y'c Will of his Mother, and whether upon his dying before 21 tho' in Possession, the Lands should go to Manly? And if the Lands shall remain over upon Thomas Steel's dying before 21 Q'r how his Issue could have inherited if he had had any?
I am of Opinion, that Thomas Steel by Virtue of the Will and Codicil of his Mother Restitue Manly, (taking it for granted the Will and Codicil were duly executed according to the Laws in Virginia), took an Estate in Fee Simple, but subject to the
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Contingency of his dying in his Minority before he should be of Age to enjoy the Land devised, and if he died in his Minority before he should be of Age to enjoy it, then y'e Land by the Codicil was devised over to John and William Manly in Fee as Tenants in common by Way of executory Devise. - Mr. Hal- lows Title depends upon the Construction of those Words in the Codicil " If Thomas Steel die in his Minority before he be of Age to enjoy the Land devised," if by those Words Thomas Steel's Death before 21 is to be understood, Mr. Hallows will have no Title because Tho's Steel did die before his Age of 21; and in that Case if Thomas Steel had had Children they could not have taken this Estate; w'ch is so hard a Construction, that it can't be imagin'd the Mother intended it should be so - But if those Words in y'e Codicil shall be refer'd to the Words of the Will [25] whereby, by the Devise that y'e 3 Children with the Estates should remain in y'e Hands of her Extor, till they should come of the Age of 16 years, and that then they should have their Estates that - that was the time of Enjoyment intended by the Codicil, then after Thomas Steel came to 16 he was seized in Fee absolutely, and the Executory Devise over to John & W'm Manly could never arise, but Mr. Hallows as Heir-at-Law to Thomas Steel will be entitled to these Lands.
If upon Thomas Steels coming into Possession he had an abso- lute Fee Simple in the Lands Q'r whether the Lessor of the Plt. hath not a good Title.
And I apprehend this last Construction is the right Con- struction and is inforced by its obviating that Hardship, in some Measure, which the other Construction would introduce, in Rela- tion to the Defeating y'e Children of Thomas Steel, because it is not unreasonable to think that the Mother did not intend her Son should marry before 16 and if not he could have no Chil- dren to be defeated by the Devise over. And therefore upon the whole, if Mr. Hallows proves his Pedigree' plainly, I am of Opinion he hath a good Title to these Lands devised.
Lincolns Inn.
Rob: Raymond Mar: 28, 1722
[Note by W. G.] (This Opinion is published in North Carol. Law Repos. 72-4 )
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MY OPINION TO THE CASE & QUERE'S STATED BY MR. SCOTT MINISTER OF OVER WORTON PARISH IN
STAFFORD COUNTY
To the 1st. I am of Opinion and do conceive that every Act or Agrem't made by a Vestry in their political Capacity, & by them so registered or entered as an Order of Vestry is binding and obligatory to themselves and their Successors as farr forth as the same descends or is limited.
2d. I am of Opinion and do conceive that if y'e Church Warden omits his Duty after the Levy laid by the Vestry he may be sued or if the Vestry omits laying y'e Levy according to their Duty they may be sued.
3d. I am of Opinion & do conceive they may not (as this Case is, because there's a greater Obligation upon this Minister than is usual) Neither do I conceive that the Parish is tied down or the Vestry to allow no more than 16000 1b. of Tob'o P. annum to y'e Minister, less, I am - Opinion they cannot do without his Consent: The Law made in 1696 (being the last) neither one Way or other confining either y'e [26] Vestry or Minister to grant more, or he to take less, so I conceive y'e Agreem't of either Party's rules the Case.
4th. I am of Opinion & do conceive that by the Continunce of y'e Vestry so long in their Station all incidents requisite for their Qualification or capacitating of them to act as such & necessary to be done at their Entrance thereon, shall be in Law intended to be performed & done & not be construed, deemed or taken to be otherwise, and to be sure shall be obligatory upon them because the Law will not allow any Person to take Advan- tage of his own Laches. As to the Successors I am of Opinion & do conceive that it is obligatory upon them too for y'e Reason aforesaid, for if it shall be intended that they are Vestry Men qualified (tho' no Register or Entry of their having qualified themselves appears) by their Continuance so long; then their Successors I conceive bound by their Acts and Agreement as I have said in my Answer and Opinion to the first Article.
5th. Lastly as to the Case itself I am of Opinion and do con- ceive that the Minister by the said Order is obliged & it is & will be esteem'd in Law his Agreemt. to preach and do such Acts on his Part as in the same is mentioned, for in a Deed "such Words would amount unto a Cov't & he is as equally obliged thereby to perform that as y'e Order of Vestry obliges them to
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do theirs. The Consideration to be performed on his Side is so extraordinary that I cannot but conceive both Law & Equity will justify y'e Vestry's Agreem't as to his Salary & providing him a Horse.
Date 23d April 1713 S. Thomson A. G(·) :
A. G. Not of England, certainly: quaere whether of Virginia. Hugh Blair Grigsby, esq. informs me that he was Stephens Thomson, the King's Attorney General in Virginia. W. G.
1. A. makes a Will and gives a Mulatto Wench thus. I will that my Mulatto Girl Sue remain with my Wife B. during her natural Life and after her Decease I give her to my Son C. and appoints B. & C. Ex'rs & makes them Residuary Legatees. B. lives a long Time & Sue during her Life had 8 Children w'ch B. by her Will has disposed of. Q'r 1st. Whether C. has any Right to y'e Mulatto Girl seeing no pres't Interest in him? [sic.] [27] I am of Opinion C. has good Right to y'e Mulatto Girl by this Devise.
2d. Whether B. had a Right to y'e Issue of Sue or any Part of them I am of Opinion (the Son not having the immediate Property in y'e Mulatto Girl tho' I think a future Interest vested in him by Way of Executory Devise) that y'e Property of y'e Children as they were severally born did vest y'e Wife & Son jointly as Coex'rs & Residuary Legatees because it must imme- diately vest in somebody. It not being disposed of by y'e Testor. Then I think as joint'ts & no Division made, the Survivor hath by Virg'a Law 1705 Right to 'em all If they did not vest in them both as coex'rs & Residuary Legatees I think they must vest in the Son there being in my Opinion no Colour for the Testor's Intent or y'e Law by Implication or other Rule to vest them in the Wife except as Coex'r &c.
Jno. Holloway Virg'a
March 9th 1718
SIR JOHN RANDOLPHI'S OPINION ON A CASE IN VIRGINIA IN 1734.
[This headline apparently not in original. S.]
A. in London purchased Lands in Virginia from B. and A & D join in a penal Bond to B. to pay the Consideration to B in London by the first Opportunity after the Lands were put into the actual Possession of A & the Deeds were recorded in Virg'a and that no Delay should be made on the part of A. A Defeazance
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was made by A. to B that if the Land was not possessed &c. in Months by A. then the Deeds of Release &c. from B. to A. should be void. The Deeds were not recorded nor Possession delivered to A until after the Time mentioned in the Defeazance but it was occasioned by B.'s Wife who was by the Deed to relinquish her Dower which she refused for so long that the Time was passed and A was obliged to pay her a Consideration at last and then Possession was delivered to A & the Deeds were recorded in due Form of Law. Immediately after A writes to B & sends an Order on D. to pay the Consideration & he also wrote to D. to pay the Money. A having lodged the same in his Hands for that Purpose. B did know in Time that A was in Possession of the Land but neglected to compel D to comply with his Bond, & never acquainted A that the Money was not paid - but A always believed the Money was paid until some time after D failed in [28] his Credit & became a Bankrupt, Then B. having assign'd the Bond his Ass'ees demanded the Money of A. affirming that D. never paid any part of it. A has since paid to B's Ass'ees the principal Sum and they insist on Interest - and my Opinion is desir'd whether as this Case is that by B's Neglect A has really twice paid the Consideration that [sic] can be compelled to pay Interest? And whether as this Case is the Defeazanc as above stated & having never been inroll'd here can defeat A's Title by Deeds that are? And upon this Case I am of Opinion that A. must pay all the interest that was due upon this Bond from the Time of his taking Possession of the Land till the Paym't of the principal Sum For tho' it was not just in B. to keep A's Order on D. & not to let A know that the Money was not paid, yet that. Order however illy nego- tiated could not extinguish or alter the Debt w'ch A. owed to B. upon his Bond unless A would give up the Land & the Debt was extinct there can be no Reason ag'st paying the Interest which is a Favour to A. to discharge him of the Penalty. And besides in this Case some Neglect may be imputed to A. who should have inquired after the Order he had drawn upon D. & when he found a Delay in y'e Paym't of it, should have taken other Measure. But the greatest Negligence was in D. whose Business was to have paid y'e Money & taken in the Bond, and as D. was intrusted by A. it is most fit for A. to Suffer by his Management and not B. who knew he had a double Security for y'e Money and might take Land if y'e Money was not paid.
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As to the Defeazance (tho' I don't think the Want of Inrollm't would alter the Case one Way or other) I am of Opinion when the Purchase Money is paid tho' not in Time, The Estate cannot be defeated.
J: Randolph
[29] Thomas Allaman seized in Fee of 700 acres of Land died Intestate leaving Issue by his first Wife Judith a Daughter & by his second Wife three sons John Thomas & William.
John died an Infant without Issue. Thomas died also in his Infancy without Issue
William lived to be of age entered & was seized & being also possessed of some slaves & personal Estate died Intestate in 1732 leaving a wife a son Thomas & a Daughter Sara Thomas died soon after his Father an Infant of tender years Sara died lately being abt. 12 years old Her mother is now living. There are no Relations of Sara on the Part of the Father but the Aunt Judith who is but of the half Blood But there are Heirs on the Part of the Mother
The Question is who is intitled to the Land Slaves & personal Estate of Sara As to the Lands they are certainly escheated and the mother being in Possession I conceive will be preferred to a Grant of them if she applies for one
The personal Estate (exclusive of the Slaves) which I suppose to be only Sara's share of her Father's Estate I think clearly must be divided between the Mother and the Aunt of the half Blood who is the next of Kin on the Part of the Father to this Purpose But the Mother alone is intitled to the Administra- tion
As to the Slaves it is not so easie to determine who is intitled to them' It is however certain that the Aunt of the half Blood cannot take them by Descent whatever Right she may have to a distributive Part of the Value in Case they are to be taken as Chattels.
The First Question will be properly between the Heir on the Part of the Mother & the Administratrix whether the Slaves can descend to such Heir they descending to Sara the Intestate on the Part of the Father
And I am of Opinion that the Heir on the Part of the Mother can not take these Slaves by Descent any more than he can the Lands which came from the Father It is incontrovertible in
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the Case of Lands that such as descend on the Part of the Father can never resort to the Line of the Mother but shall rather escheat as they do in this Case By the Act declaring Slaves a real Estate they are to descend as Lands held in Fee simple How then can the Heir on the Part of the Mother come in Slaves indeed cannot escheat but by a Proviso in the af'd Act are in such Case to be taken as Chattels And consequently they must go to the Administratrix. This seems mighty clear to me But I must observe that I have never known this Point come in Question or do I believe it was ever yet determined in the General Court.
If the Slaves are to be taken as Chattels in this Case there will then be another Question whether the Aunt of the half Blood as next of Kin to the Father is intitled to Distribution Or whether the Mother as Administratrix be intitled to the whole.
[30] This Point is also quite new to me but upon the best Consideration I have been able to bestow I am of Opinion that the Aunt of the half Blood is not intitled to Distribution as to these Slaves tho' they be personal Estate Nor to any other personal Estate of the Intestate Sara except her Share of her Father's personal Estate.
Upon the whole I am of Opinion that the Lands are escheated that the Mother alone is intitled to the Administration & in that Right to all the Slaves and that the Aunt of the half Blood is intitled only to one half of the Intestate's share of her Father's personal Estate.
I advise the Mother to take out an Administration to her Daughter & also to petition for a Grant of the Lands as escheated and that without any Delay.
Edw. Barradall W'm'sburg 29 Mar. 1741
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[31] Cases adjudged in the General Court of Virginia from April 1733 to October 1741 taken by Edward Barradall Esq;
[Note by W. G.] (Late Attorney General there. In Myers's copy.)
Also some Cases taken by Mr. Hopkins between October 1731 & April 1733
[Note by W. G.] (This is not in Myers's copy.)
APRIL COURT MDCCXXXIIJ
MURDOCK V. THORNTON Appeal from Stafford.
The question in this case was whether a man confessing Judg- ment in custody is in Execution without prayer of the Pl't. The case of Diggs and Fleming in this Court (.) was insisted on (*) Vide this Case J. K. Arguments. 73.
which was, One [sic] confessed judgment in Custody and was discharged by the County Court upon the Act for relief of Insol- vent Debtors The Act speaks only of persons in Execution So unless he was in Execution the County Court had no Power to discharge him But Adjudged the Court had Power to discharge him and consequently that he was in Execution.
For this point see Comb. 329. that after two Terms upon filing Comon bail the def. is discharged.
For the Appellant (Pl't below) It was also insisted that the Entry of the Committitur was only Form and that the Clerk should do it of course without prayer That in England it was the meer Act of the Attorney who enter'd it upon the Roll For the Appellee it was answered such practices would be incon- venient for thereby the Pl't would be forced to take Execution against the body when perhaps he had rather have it against the Estate.
Adjudged that he was not in Execution without prayer and so County Court Judgment affirmed.
[Note by W. G.] (Rob. Virg. Pract. 137.)
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OCTOBOR COURT MDCCXXXIIJ
Oct'r 20. 1733. Philip Lightfoot Esq. was sworn one of the Council in the General Court and a Judge of the said Court
Oct'r 25. Thomas Lee Esq. was likewise sworn.
REEVES ag't WALLER [32]
[Note by W. G ] ( Jeff. Rep. 8, s. c.)
The Pl't brought an Action upon the case in Essex County Court for forty shillings won upon a horse race and had a Ver- dict in his favour. In arrest of Judgment it was objected that the Pl't ought to have sued by way of petition upon the Act of 1 Geo: 2 for recovery of small Debts and for this reason Judgment was stayed and the Pl't ordered to pay Costs
And now I moved for a Writ of Error The doubt was whether It could be allowed the principal debt being under five pounds And no Appeal or Supersedeas ought to be granted by the Act of 1 Gco: 2.
I insisted that the Act did not mention writs of Error And that the Subject was intitled to them of common right.
But the Court seemed to incline that Writs of Error were within the Act However a Writ of Error was allowed upon the Authority of Spotswood & Harrison's Case in this Court
In which the Court came to a solemn resolution that the Act did not intend to exclude the Pl't from an appeal &c. but the Def't only see the Act c 3. 8. 14.
MCCARTY ag't MCCARTY's Extors. In Chancery
Daniel McCarty being possessed of a large personal Estate And among others of a Bond debt of £291 and Interest due from John Fitzhugh one of the Def'ts makes his Will and after several legacies devises the residue to his three Sons D. B. & T. and makes them Executors but because they were under age makes the said John Fitzhugh and the other Def'ts Executors in trust till T. arrived to 17. This Bill was brought by D. one of the sons and residuary Legatees against the Trust Executors for an Account of the residue Of which J. F's Bond is charged to be part.
I. F. Answers separately and submits whether the debt be not extinguished by his being made Executor which he says he
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believes was the Testator's intention because the Def't coming to see him in his last Sickness and expressing some uneasiness about his bond The Testator said if he thought any child of his would trouble him for it he would burn it before his Face Says he married the Testors Eldest daughter and that the testor promised to give him as much as he gave any of his other daugh- ters That he gave the Def't only nine Negroes in his life time and two by his will and that he gave two daughters £500 a piece by his will and the Def't [33] hopes to be allowed as much out of the bond as will make his Wife's portion the same Sayes he employed the Testor to purchase an Estate for him which the testor bought for himself and devised to the Complain't and hopes that will be considered
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