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 36
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" And no Slave or Slaves whatsoever shall be forfeited except "in such Cases where the Lands & Tenements of such Person " incurring the Forfeiture is should or might be forfeited.
And then the Act goes on and makes a great variety of other new provisions in a variety of other Cases not relating to the Case now in question
At the time when the last mentioned Act passed the s'd Eliza- beth the Daughter and sole Heiress of the said Rebecca, was the Wife of the Respondent Shields
In June 1748 (which was 30 years after the Death of the said Rebecca, when the said Slaves had descended to the s'd Elizabeth afterwards Shields and 23 years after the Death of the said Rob't Cobbs) the now Appellants filed their Bill in the County Court of York in Chancery in Virginia ag't the Respond't Stating the said W'm Pinkethmans Will and Death & his devise of the s'd Negroes to his Daughter Rebecca her Heirs and Assignes; and that [347] after his Decease the said Rebecca became seised and possessed of the said Slaves and afterwards married their Father Rob't Cobbs, by Virtue of which marriage (they insisted) that Rob't Cobbs became seised and possessed of the said Slaves and their Increase. They also charged that Rob't Cobbs died having made such Will and Ex'rs and having devised to the Appellants the Residue of his Estate in such manner as herein before Stated; they further Charged that Elizabeth the Widow of Rob't Cobbs by Virtue of his Will and the Devise therein be- came possessed of the said Slaves which had been so devised to Rebecca Pinkethman and their Increase but that she married to Weldon since deceased and died on the 1st of August 1747 and that the now Respondent Shields some time in the Life of the said Elizabeth and of the said Weldon had by some means or other got possession of all the said Slaves which had been devised to Rebecca Pinkethman and had refused to deliver them up to them the then Plaintifs now Appellants and had pretended that he was not obliged to deliver them or their Increase to the said
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BARRADALL'S REPORTS
Plaintifs but that he himself had a title to them by his marriage with Eliz. the Daughter of the said Rebecca Pinkethman, whereas they the Plaintifs charged that the Respondent Shields had no Right or Title to the same by virtue of such his Marriage And
Therefore the plaintiffs prayed a Discovery from the Deft. when and by what means he became possessed of the said Negroes and their Increase & Number. Names Ages and Values of such of them as ever came to his Hands or were in his possession and what was become of the same, and that he might be decreed to deliver up the same to the plaintiffs and account with them for the Labour of the said Slaves from the Death of the said Eliz. the Widow of the s'd Rob't Cobbs and that the Plaintiffs might be relieved according to Equity
The Respondent was extreamly surprised at such an Extraord- inary dem'd being now set up by the now Appellants so late as in the Year 1748 when had the Law from 1705 for 22 years together been capable of any such Construction or the Act of 1727. been capable of any such a Retrospect as was now Con- tended for, there had been in Fact some thousand of Instances where Married Women within that period had had Slaves whose Husbands might have set up just the like Demand, but there can be no pretence that this discovery had ever been made by any other person or that any one Decree or Judgment had been ever given in Favour of it in any persons Case whatsoever.
And the Appellants Case is attended with this Further Difi- culty that as to them when the New Law made was in 1727 the Appellants Father was not the Husband of Rebecca but he & she had both been many years dead [348] her Negroes had 12 years before that Act was made Descended to & were in possession of her Daughter and Heir at Law; and such Daughter was at the time of making that. new Act her self a Feme Covert and the Wife of the Respondent Shields.
The Deft. Shields put in his Answer Plea & Demurrer and for answer admitted the Plts. were Devisees under the Will of Robert Cobbs and that William Pinkethman had been seised and pos- sessed of Sundry Slaves and had made his Will in Writing as in the Bill, and a Devise therein to Rebecca of Certain Lands and Slaves and said she was his Daughter & Heir at Law and that his Devise to her could not alter her Title to her Fathers Lands and Slaves but that the same descended to her as Heir at Law and Admitted that she became seised thereof and Afterwards
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VIRGINIA COLONIAL DECISIONS
Entermarried with Robert Cobbs, who was Father of the Plaintiffs Sarah and Martha by another Venter having had Issue by the said Rebecca, a Daughter Elizabeth Heir at Law to the said Rebecca and Coheir along with the plts Sarah and Martha in the Real Estate of the said Robert Cobbs he admitted that the said Rob't Cobbs made his Will and soon after died and that his Widow Elizabeth married with Weldon since deceased and that she died about the time in the Bill [sic] and that in the Life time of Weldon and his Wife he the respondent married with Eliz. the Daughter and Heir of Rebecca & Robert Cobbs, and in Right of his Wife got possession of Several Lands and Slaves which by Contracts and other means became Legally vested in her and her Heirs some of which might have descend'd from the Slaves mentioned in Pinkethmans Will and that his said Wife was since dead leaving two Daughters her Heirs at Law and Insisted he was not obliged to discover the Names of any of the s'd Negroes and of their Increase or to deliver any of them to the plts. or to disclose any further Title thereto.
And for plea said that all the Lands and Slaves of Pinkethman descended in Fee to his s'd Daughter and Heir Rebecca and her Heirs in 1712 that she then became seised thereof as the Law required and died about 1715 leaving Issue Eliz her Heir at Law an Infant aged about 11 years who entered on the premises and became seised thereof as the Law required and that her Father Robert Cobbs as Guardian of his said Daughter and in pursuance of a Contract made previous to his Marriage held the said Lands and Slaves as her Guardian, the Legal Estate and the Reversion then being in the s'd Infant Heir and that the said Rob't Cobbs being [349] then so seised did often in his Life time declare his s'd Contract & disclaimed having any other title in the s'd In- fant's Estate and never removed her Slaves from her Lands and having made his Will he therein particularly mntd his own Lands and slaves one of which he devised to the s'd Infant with her Increase in Lue of the profits of her Estate exceeding her mentenance but omitted all the Lands & Slaves which descended to the s'd Infant aforesaid and for that reason made the Larger distribution under his Will in behalf of the Plaintiffs his other Daughters and Co-heirs and this matter was so fully known and settled that when Robert Cobbs died in the Year 1715, the Slaves of the s'd Infant were not Inventoried nor Considered as any part of the Real or personal Estate of Robert Cobbs, but the s'd
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BARRADALL'S REPORTS
Infant chose Hannah Shields for her Guardian in that Court of Chancery and obtained an order or decree to be put in possession of the s'd Lands & Slaves as the seperate property of the s'd Infant by means whereof the s'd Infant became seised of the s'd Lands and Slaves and the profits thereof from the Death of her s'd Father under the Decree of that County Court of Chancery and so Continued seised untill her Death, under which Decree & relying upon the same he the Deft. Intermar'd with the s'd Infant & thereby became a purchaser for a Valuable Consideration of her said Slaves without Notice of any such pretended Title as now suggested and had Issue by her two Daughters the Heir at Law then Living all which he was ready to verify therefore pleaded the s'd several descents, the s'd Long qui't and uninter- rupted Enjoyment since the death of the said Rebecca and Robert Cobbs and the Stattute of Limitations as also the decree of the s'd Courts and his purchase for a Valuable Consideration under the same without notice in Bar of the Plts. Bill
And seeing it appeared by the PIts, own shewing that they had notice of some Contract or agreement under which he the Deft. had so quietly held & Injoyed the premises he Demurr'd to that part of the Bill which prayed a Discovery of the names of any of the said Negroes or of their Inrcease, or by what special Con- tract or Deed he held the same seeing a purchas'r for a Valuable Consideration without Notice was not compellable by the rules of Equity to disclose his Title and as the Infant Heirs of his Wife might be affected thereby and were not made parties to the said Bill and Especially as the Plts. deduced their Titles to par- ticular Slaves for the reason aforesaid
The Plts. joined Jssue (as it is called in the proceedings) on the said Plea & Demurrer.
The Court of Chancery ordered the s'd Plea to stand, as and for part of the Defts. Answer but adjudged that the Demurrer was not good and overruled the same and ordered the Deft. to make a further and full answer And to pay the Plts. their Costs oc- casioned by the s'd Demurrer
From w'ch order the Deft. prayed an Appeal to the third Day of the next Gen'l Court [350] but the Plts. opposed and the Court refused the same as the s'd opinion did not determine the right of the Parties to the Negroes in question
The Deft. put in his further Answer wherein he again set forth and insisted on all the several matters which had been Contained
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VIRGÍNIA COLONIA DECISIONS
in his former Answer Plea and Demurrer with some Additional matters also namely that he got Possion in right of his s'd Wife of Several Negroes of Which the 10. Negroes which he then particularly Named were all that remained alive and insisted that he had good right & title to the same and that by the Laws of that Country the right title and Estate of the s'd Negroes vested in the s'd Elizabeth on her Mothers Death in 1715. and that Rob't Cobbs at the time he made his Will had no right or title to them and since he the s'd Deft. so long an uninterupted [sic] a Posn of the s'd Slaves he pleaded the s'd Act of Assembly of the 4 year of Queen Anne Intitled an Act for Limitation of Actions and avoiding Suits in Bar to the Plts. Pretended Right & title to the s'd Slaves.
The Plaintifs replied and the Deft. rejoined.
And the Cause being at Issue a Witness one Tho's Cobbs was Examined who fully proved everyone of the material Facts Insisted on by the Respond'ts answers and plea and no other Witness was Examined in the Cause.
The Cause Came on to be heard in the s'd County Court of Chancery upon the s'd Bill answers Plea & Deposition and the same being opened and Council heard on both sides it was ordered and Decreed that the Plts. Bill should be dismissed and that the Parties shoud bear their own Costs
From which decree the Plts. prayed an Appeal to the third day of the next General Court which was allowed upon their giving security to Prosecute with Effect
And the s'd Appellants filed their reasons of Appeal and thereby insisted that the s'd Decree was Erronious and Contrary to Equity in this that the s'd County Court had ordered their Bill to be dismissed when by the Rules of Equity it ought to have decreed the Slaves in the Bill aforesaid to have been delivered up to the Appellants wherefore they prayed that the s'd Decree might be reversed and that the appllee might be Decreed to de- liver up the s'd Slaves to them.
And the Respondent insisted there was no Error in the s'd Decree but that the same was agreeable to the rules of Equity and prayed that the Court woud proceed to Examine as well the Decree as the matter af'sd Assigned for Error and that the Decree might in all things be affirmed
[351] The s'd appeal came on to be heard before the president of his Majesties Council and the rest of the Judges of the General
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BARRADALL'S REPORTS
Court in Chancery in Virginia which Court then declared its Opinion that there was no Error in the Decree but that the same was agreeable to the rules of Equity and therefore decreed and ordered the same shoud be in all things affirmed and that the parties should bear their own Costs.
The Appellants not satisfied with the Concurrent opinions of Both Courts in the Colony instantly prayed and were allowed a further Appeal to his Majesty in Council and gave a Security to prosecute according to the royal instruction in that Behalf and ought thereby to have prosecuted the same with Effect within 12. Months from the tenth of October 1751.
But instead thereof purely for creating all the Expence & Vexation to the Respondent that the Appellants Coud do they never took any step towards prosecuting their s'd Appea until Febr. 1753. when more than 16. Month were Elapsed altho it now appears of the Appellants own shewing that the transcript of the papers was had out and Council retained for the Appellants in London so long before as in June 1752.
Under this affected Delay the respondent was under a Necessity of waiting and increasing his Expences as long as ever the Appel- lants thought Proper to keep back their Appeal or else to petion his Majesty in Council to dismiss the s'd appeal with Costs for non-posecution
And as the respondent could not conceive that ever the Appellants intended to prosecute their Appeal and as such methods of Delay are grown much in Use of Late and seem to be an abuse of his Majesties Jurisdiction to the great Injury of Res- pon'ts to the present Respondent about the End of January 1753 presented his petion to his Majesty in Council most humbly pray- ing that this Appeal might be dismissed with Costs for posecution.
And his Majesty was pleased by order of reference to refer the s'd Petition to the Consideration of his most Honourable Com- mittee and on the 30th January 1753 the Resp't by his Council moved their Lordships Accordingly, but their Lordships were pleased to respite the matter for two months
And on the 21. Febr'y then following after that the Appellants in Willful breach of their own Security and of his Majesties royal instructions had vexatiously delayed the respondent and put him to all the Trouble and Additional Expence which was any way in their power presented a petion that their Appeal might be received nunc protunc
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VIRGINIA COLONIAL DECISIONS
And upon the Appellants motion to their L. ships on the 20. of March 1753. their L. ships were pleased to permit the s'd Appeal to be received on the terms of the Appellants paying 5€ part of the Appellants Extraordinary Costs and being ready to hear their own Appeal in three Weeks otherwise their appeal to be dismissed
The s'd appeal now Coming on tis hoped it will appear without merits and merely Calculated for delay and Vexation and that the same will therefore be dismissed with Examplary Costs to the Respond't for the following among other
[352] Reasons
1st) For that the Act of Assembly of 1st February has not any retrospect to affect the rights of Persons dead antecedent to the passing of that Act but is confined to the rights of Persons living at the time of passing that act or who shall come into Being sub- sequent thereto, the right and property is Disposed of by this Act only and not by the former Act of the fourth of Queen Anne and per verba de futuro viz the absolute property of such Slaves is hereby vested and shall accrue to " and be vested in the Husb'd of such Feme Covert."
2d) For that the Act of 1. Feb'y 1727. is an Act professedly to amend for the future the Law Concerning Slaves and therefore Enacts " That the s'd Act of the fourth of the Queen shall here after be Construed and the true intent & Meaning thereof is hereby declared to be, Words properly addapted to the Introduc- tion of a New Law and if the Legislature had intended this Act shoud have a retrospect to the time of passing the Act of the fourth of the Queen the words hereafter & hereby ought to have been omitted
3.) But what seems Decisive in the present Case, is, that the Clause under w'ch the Appellants Claim is manifestly incon- sistent with the act of the 4th of Queen Anne and to give a New Law a retrospect if it be within the power, is Contrary to the Justice of any Legislature and therefore such a Construction woud be irrational illegal and unequitable
For which and many other reasons that may be offered the respondent humbly hopes that the s'd Decree of the General Court of Chancery of Virginia of the 10. October 1749. shall be in all things affirmed and the Appellants Appeal be dismissed with full Costs.
A. Hume Campbell. R. Henly.
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I, W. W. Scott, State Law Librarian of Virginia, do hereby certify that I have diligently compared the foregoing pages with the Manuscript Volume in the State Law Library, marked Barradall's Reports - and that the said pages are a true and correct copy of the same.
Given under my hand this 6th day of March, 1909.
W. W. Scott, Librarian.
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384-385
TABLE OF CASES REPORTED BY EDWARD BARRADALL
Page
ANDERSON & UX. vs. LIGAN. B150
Devise of land; question whether estate tail or in fee; judgment for defendant in possession.
ANDERSON, quitam vs. WINSTON . B201
Debt to recover for taking excessive usury; quere whether the statute applied to contracts made before its enactment; but the case was agreed and no judgment rendered.
ANONIMUS B107
Man marries a woman entitled to a part of her father's estate and dies before distribution; does this distributive part survive to the wife or go to the husband's admr .? If reduced to posses- sion during coverture by the husband, it belonged to his admr., otherwise to the wife.
ARMISTEAD vs. NEWTON B174
Grant to an infant; failure to seat the land; quere whether infancy excused the seating until many years after the grant; the judgment was against the defendant who claimed that seating the land had been excused by infancy.
BANKS vs. BANKS et al B304
Devise of land to son for certain uses by him; whether the son took an estate tail, or an estate for life with remainder to his children in fee in joint tenancy, in case they survived him. BERNARD vs. STONEHOUSE .. B60
Action of ejectment; term having expired held that plaintiff might recover damages.
BERNARD vs. WASHINGTON PARISH & al .. .B272
Action of ejectment; question of whether a good title passed by certain deeds described; effect of grantee's dying in lifetime of the plaintiff's father and of adverse possession.
BERRYMAN vs. BOOTH B42
Will found after death among testator's papers; a son was born thereafter and testator declared that he would make a will but died without doing so; birth of son held to be a revocation and that the father died intestate.
BOYS vs. HOGGETT B80
Action on bill of exchange held barred after twenty years, by pre- sumption of payment.
BROCK vs. TYNE .B111
Interpretation of a deed creating an estate tail, as to whom the reversion descended.
BROOKING vs. DUDLEY, DIXON vs. BROOKING, and COLLIER vs. BROOKING B256
Three actions of detinue for slaves; question if a sale after judgment and money paid to the next friend would conclude the plaintiff, being under age, or bar his rights; effect of the act of a next friend upon the rights of an infant.
BUCKNER vs. CHEW et al. B123 Conveyance of "2,520 a's be the same more or less"; friction of part; whether there was remedy for the deficiency.
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VIRGINIA COLONIAL DECISIONS
Page
BURGES vs. HACK. B195
Devise of what appeared to be a defeasible fee; quere if it was not an estate tail; held for the defendant "that it was a contin- gent fee" by a vote of seven to four.
BURWELL vs. OGILBY &c .. B105
Bill to subject real estate to payment of debts, the personalty being insufficient; will directs that "all my Debts may be paid after my funeral expenses"; held that real estate be sold and debts paid, including simple contract debts.
CHEW vs. STEVENS. B166
A special verdict by a jury and a survey of certain land claimed under a patent; a claim of fraud and that the grant was void; the fraud seemed to be proven but the defendant insisted that he was an innocent taker and the grant good to him; judgment at first for the plaintiff, but there was a reargument and finally judgment for the defendant by a divided court. Councilors Blair and Byrd changed their opinions.
COLEMAN & UX vs. DICKENSON B119
Husband and wife by deed convey slaves (being real estate by the law) in trust for their own uses, with proviso that if the wife should die before the husband she could dispose of the negroes by will; husband died first; wife by will disposed of negroes and their increase; question if wife had the power so to dispose of the negroes.
COLLIER vs. BROOKING. B256
Same case as Brooking vs. Dudley, B256.
CORBIN vs. CHEW'S ADM'ORS. B155
Debt on bond; plea plene administravit; question as to allowing to executor payment of certain simple contract debts; no judgment but note refers to [223.]
CORBIN vs. CHEW'S ADMR .. B239
Whether deft. paying judgment after full notice of this action be a devastavit and if an Ex'or may retain a debt by simple con- tract against a bond creditor's; an ex'or's right of set off to a debt due by himself to the creditor.
CROSS CASE B92
Indictment for stealing a horse; if the horse being a stray, to take it was a felony; held that it was no felony.
CURLE vs. SWENEY. B117
Action of ejectment for land between high and low water mark; the accretion was granted by the crown to another than the owner of the land, to high-water mark; held that the grant was bad and the accretion passed by the first grant.
DANCY et al. vs. WILLARD'S ADMX .. B355 A man dies intestate without heirs; his widow administers and enters on the land; simple contract creditors sue; question if they may subject the rents and profits and if insufficient can they sell the land.
DARBY vs. STRINGER B45 Slight proof of seating held to save grant of land made many years before.
DIXON vs. BROOKING B25 6 See Collier vs. Brooking, B256.
DUDLEY vs. BOOTH. B25 6
See Collier vs. Brooking, B256.
DUDLEY vs. PERRIN et al. . B34 3 Action of ejectment; a special verdict; if the lessor was barred of his action by the statute of limitations.
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TABLE OF CASES
Page B81
DUNN et al. vs. WYTHE
Will of real and personal estate to wife during widowhood, with provision over in case of her marriage, and she is appointed executrix; she died without having married again; held that the wife took the whole estate and that it passed to her executor. EDMONDSON vs. TABB .B359
One died intestate; leaves widow and children; widow remarries and has issue; question of succession to the half bloods, and the right of an aunt of the half blood on the father's side.
EDWARDS vs. BRIDGER B117
Appeal from County Court in action of debt; former judgment, rendered but not entered, pleaded in bar; demurrer to the plea sustained in county court, but reversed on appeal.
EWELL vs. MILLER & UX, ADMR. &c. B268
Action of covenant upon a deed of warranty; demurrer to the declaration for lack of certainty; whether warranty covers the failure of the wife to acknowledge with privy examination.
FARROW vs. FARROW . B261
Devise of land; then a further purchase after the execution of the will; son put in possession on promise to convey the same to a brother; question of effect of the father's declarations and the son's promise.
FIELD vs. COCKE B185
Action upon the case for an escape; verdict subject to a point reserved, the question being of the responsibility for the prisoner between the old sheriff and the new; and the judgment seems to have been against liability at all.
FITZHUGH vs. BURWELL. .B180
Question of the effect of a deed by a married woman without privy examination; of how far the survivorship of a joint tenant and grantor overcame that defect; also effect of long continued possession; but the cause was agreed by the parties. GILES & UX et al. vs. MALLICOTE B71
Action of detinue; special verdict; devise of slaves "Quashey and Tomboy" construed; and whether child of which female slave was quick at the making of the will passed by the devise. But the case was compromised and no judgment given. GODWIN vs. KINCHEN'S EX'ORS .. . B68
Gift of several legacies with a residuary clause in the will which was construed.
GOODLOE vs. DUDLEY &c. B87
Appeal from County Court; action by High Sheriff against under sheriff and the surety on his bond, to recover quit rents for which the High Sheriff was sued; plea of the statute against buying and selling offices; judgment for the plaintiff. GRAVES vs. KENNAN. B43
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