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 5
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There is the Opinion of Frowick in Kelw. 91. and of Popham in new Dier 75 Margine Chandler ag't Lopus in Favour of this Point but the first is a single Opinion And as to the second tho' it was adjudged in the K's Bench according to the Opinion of .. Popham yet that Judgm't was reversed in the Excheq'r Chamber Cro. Ja. 4.
If a man sells a Pipe of Wine that is corrupted [45] and does not warrant it to be good no Action lies F. N. B. 94. c. Bridgman 12. 7. and 1 Ro. A. 90. con. is not warranted by the Book for it appears in the Case there was a Warranty It is said indeed the Warranty is not Material but what is the Reason given why because it is prohibited to sell corrupt Victuals Bridg. 127. Southern ag't How Case of a Counterfeit Jewel which the Deft. knew to be so Adjudged no Action lay without a Warranty In the Report of this Case Cro. Ja. 468. the Council for the Plt. labour this Distinction where the Deceit is sciens or not No Judgm't is given by the Report there but in Bridg'm Judg't was given for the Deft because the Action would not lie without a Warranty except in the Case of bad Victuals which goes upon another Reason as I have shewed.
Pop. 143 S. C.
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If a man sells a Horse that is lame or diseased without War- ranty no Action lies F. N. B. 94. c. Bridg. 127. 1 Ro. Ab. 90. 4. This is a Common Case and what every Body knows and was never yet denied Nay if there is an actual Warranty it extends only to secret Infirmities not such as are visible and apparent as the Want of an Eye or any other Defect within the Knowl- edge of the five Sences as the Book of 11. E. 4. 6. b. expresses it So is the Civil Law 1 Domat 85. 10. Yet it is a Fraud and Deceit in the Seller not to discover this Defect to the Buyer but here Caveat emptor 1 Sal 211. Butterfield ag't Burroughs is not con. but rather warrants this Opinion for there the Court said they would intend it a secret Infirmity being after a Ver- dict.
This Case of a Horse I take to be directly in Point for where is the difference between a Horse and a Slave as to this Matter If an Action will not lie in one Case neither will it in the other as I conceive.
As to the Difference taken where the Deceit is sciens or not it has its Foundation from that Opinion in 9. H. 6. 53. b. only cited as I have observed no one adjudged case since to support it but the whole current of Authorities as well as Common Experi- ence ag't it. I will agree this Difference is taken with respect to the Property in several Cases 1 Danv. 178. If a man sells a Thing knowing it to be anothers an Action will lie without Warranty but this Point is settled in Medina ag't Stoughton cited before.
In my little Reading I could never find a Precedent of such a Declaration as this but the Precedents are all upon Warranties and I believe no such Precedent can [46] be shewn And if there cannot it will go a great way to prove my argum't Sr. E. Coke says an Argument drawn from Books of Precd'ts and Entries is very forcible.
In short Sir if this Action is maintainable a great deal of Learning we meet with in the Books upon the subject of War- ranties might have been spared. It must be useless and insig- nificant And the rule Caveat emptor may be thrown out of Doors
I expect to be told that this is arguing in Favour of Fraud that this makes Buying and Selling a mere cheat and learned Lessons we shall hear no doubt concerning the Immorality of the Thing. But however such kind of reasoning may serve to
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gain popular applause and raise a High Idea of the Orator's Integrity it will never I am sure prevail with discerning Judges
The Laws of Society and Civil Government are not founded upon the strict Rules of natural Justice public Convenience oft requires they sho'd be dispensed with The Punishment of Theft bears no Proportion to the Crime Yet it is found necessary to make it so severe I need not mention other Instances they are obvious enough
Therefore to make specious Harangues concerning the Morality or Immorality of an Action that is to be determined by the Laws of a particular Society is arguing neither like a Lawyer or a Politician
It is a Rule of all Governments I believe that the Good of the Majority is to be preferred Agreeable to this we have a Maxim in the Common Law Lex citius tolerabit privatum Damnum quam publicum malum Therefore the Judges in their Determinations do not so much regard what the Injury is to particular Persons but what the general convenience or Inconvenience Will be An Argument ab inconvenienti is very forcible in Law for the Rule is Omne quod est inconveniens est illicitum.
Now Sir I conceive the Inconveniences will be many fold if it be established for Law that an Action will lie for Selling a Thing of small Value for a great Price or for selling a Commodity without discovering the Defects which are the Charges in this Dec'l It will tend to multiply suits without End Every Man that is displeased with his Bargain will have it to say The Thing is not so good or worth so much as I thought [47] And if this shall be a Foundation for an Action a desire of Revenge or Proneness to be litigious may produce a Law suit out of every Bargain that is made How much more reasonable is it that a particular person should sometimes suffer than such a general Inconvenience be introduced especially since the Law has put it in the Power of every man to secure himself against Imposi- tions of this kind by requiring a Warranty And if he does not do it he suffers through his own Folly and Negligence and the Law is not to be blamed If this Action will lie every Vendor of Slaves imported will be subject to the same It frequently happens that there are Distempers among their Slaves but the Seller does not think himself obliged to publish this to the World Nor is it thought criminal even to use arts to conceal it Numbers of these distempered slaves have been sold and the consequences
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sometimes very fatal But I never yet heard of an Action being brought Tho' we may expect for the future to see them very frequent if this is established as a Precedent.
I will beg leave to mention a Case adjudged here last Court Lewis v Golston It was in Chancery Lewis brought a Bill ag't Golston suggesting the want of Witnesses to be relieved con- cerning the sale of two Slaves which he alleged the Deft. war- ranted to be sound but were in Truth distempered The Deft. denied the Warranty And tho' it was proved the slaves had been distempered for some Time and till just before Lewis bought them and that the Deft. knew it Yet the Court denied any Relief because the Warranty was not proved
If Equity could not relieve in such a Case much less can an Action at Law be maintained I remember very well Sr. J. R. who was then of my side of the Question argued an Action would not lie without a Warranty He sayed those little arts which are used every day in the way of buying and selling and in putting off bad Commodities were no Grounds of an Action Nay he went so far as to say all Trade was a kind of Fraud How right he is in his Opinion I must submit but I am apt to think his Argument now will not be very consistent with his Doctrine then.
There is one Thing I have omitted to mention and that is the Rule of the Civil Law in buying and selling In pretio emptionis & venditionis naturaliter licet contrahentibus se circumvenire The Civil Law is universally allowed to be the most equitable perfect Law in the World And yet this Kind of Art and Overreaching in buying and selling [48] is tolerated and indeed there could be no such Thing as buying and selling if it was not.
I am perswaded then your Honours will not be induced from any plausible Pretence of the Immorality of the Thing to give Judgment ag't the Law I take the Law to be clear in Favour of the Deft. and I pray that Judgment may be staied
Judgment was given in
this Case for the Plt. in April 1735
OCTOBER COURT MDCCXXXV.
One. : was indicted for Stealing an Horse and found guilty In arrest of Judgment it was showed that the Venire facias was
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awarded to a wrong County and thereupon adjudged to be a Mistrial.
Mr. Attorney moved the Prisoner might be remanded and a new Venire facias awarded He mentioned the Maxim that a Man should not be twice put in Danger of his Life but sayed here the Prisoner's Life had not been in Danger the Jury that tried him having no Power to Convict him.
And he was remanded accordingly
Cited 6 Rep. 14. Arundel's Case in Point and 4 Rep. 39. 40. 45. a. 47. a. where an Indictment is insufficient a Man may be indicted again See 2 Hawk. 377. s. 10. 379. s. 15.
4 Co. 44. 45. Vauxe's Case 3 Inst 214.
MORRIS ag't CHAMBERLAYNE Supersedeas [49]
It was suggested that the Deft (Plt. below) had delivered a Writ ag't one to the Plaintif's Undersherif and ordered him to take no Security on Purpose to get a Judgment against the Sherif which he did The Undersherif was offered to prove this
It was objected he was no good Witness being answerable to the now Plt. and so concerned in Interest
The Plt. offered to release him but the Court would not admit him a Witness.
Note he was an Indigent Person and the Plt. did not actually release him only offered to do so
Lee, Tayloe, & Randolph for admitting him but Randolph next morning changed his Opinion because the Witness was not actually released Lee and Tayloe not in Court
If he had been actually released he ought to have been a Witness Vide.
APRIL COURT MDCCXXXV1.
A case was cited by Sr. J. Randolph of Col. Mason's where it was adjudged the Act of Limitation would run against a Bill of Exchange Contra ejus opinionem meamque quidem See Post Boys ag't Hoggatt. 75
JAMESON U VAWTER Appeal
Error assigned that the Defendant below offered to demur to the Plaintif's Evidence being viva voce and the Court would not make the Plaintif join
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Per Curiam The Court should have made the Plt. join or have directed the Jury to find specially
Randolph fr Plt. denied the Authority of Middleton & Baker Cro. Eliz. 751. and cited 1 Inst. 72 & Try. per Pais 418
Judgment reversed 1 [50] OCTOBER COURT MDCCXXXVI.
TUTE v. FREEMAN
In debitatus assumpsit for 25£. for Goods sold Mony paid and Services done. The Jury found only nine Pounds three Shill- ings Damage . : S. C. Jeff : 24.
Randolph moved that no Judgment ought to be given the Damages being under £10. Sterling and so the Action will not lie in this Court
Barradall e-contra Judgments are given here every Day where the Damages found by the Jury are under £10. if the Cause of Action laid in the Declaration is for so much and so the Practise was agreed to
And the Motion overruled
Sed vide the case of Pinchback v. Rogers October Court 1739. where it is adjudged contra and the case of James Bray was cited who was non-suited the Ballance of a Bond being under 105 Sterling
JONES ag't LANGHORN S. C. Jeff. 37.
In Detinue upon a special Verdict the Case was A woman possessed of Slaves devised to her during Life and after her Death to another marries and joins with her Husband in a Deed of Mortgage of these Slaves for 99 years the Husband dies this Action is brought by the Mortgagee ag't the Wife for Recov- ery of the Slaves.
Barradall for the Plt. The Deed is undoubtedly void as to the Wife and so it is meerly the Act of the Husband The Ques- tion then is solely this Whether the Husband in this Case could dispose so as to prevent any. Title or Interest from surviving to his Wife and I conceive clearly that he might It is agreed that the Slaves in this Case are to be considered as Chattels the
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Devise to the Wife being before the Act making them a real estate I shall then consider the Interest accruing to the Hus- band in the Wife's estate which is different according to the [51] Nature and Quality of that Estate In her Lands &c he acquires a Freehold during the Coverture or an Estate for life if there is issue between them In Chattels real he acquires a Property and a Power of disposing in his Lifetime but not by Will If he dies first without disposing they survive to her If she dies first they survive to him 1 Danv. 705. 8. 1. Inst. 351 a. But as to Chattels personal Marriage is an absolute Gift of all such in Possession whether the Husband Survive or not Co. Lit. 351. b. And this I presume whether the Wife has an absolute or only a temporary or qualified Property for all the Right & Interest of the Wife be it more or less is by the Marriage transferred to the Husband and vests in him by Way of Gift There is no Case in Law that makes any Difference Nor is there any in the Reason of the Thing If the Husband has a right to the greater by the argument a majori ad minus he has also a right to the less For that Omne Majus continet in se minus is a Rule of Law as well as an Axiom of Philosophy certainly it must appear absurd that the Law should give the Husband Chattels in which the Wife has an absolute Right and not those in which she has a lesser Interest The Husband's Right as to Chattels personal was always the same And as to Chattels real it has been carried further in later Times than formerly for he may now dispose of the Trust of a Term as was adjudged about Micha's 1680 in the House of Lords, in Sr. Edw'd Turner's Case 1 Vern. 17. which is the first case of that sort the Law being otherwise before But since has been always held according to that Determination 1 Vern. 18. 2 Vern. 270. Tudor v. Samyne. Now whether the Interest of the Wife be only for Life or in the whole term it will certainly make no Difference Whatever Interest she has the Husband has a power of disposing and if in Chattels real surely in Chattels personal too in which he acquires a more absolue Right by the Marriage.
If 1 Inst 351 be objected that the Husband shall not charge his Wife's Chattle real tho' he may dispose but if she survive she shall hold it discharged That rule does not hold in Chattels personal as this Case is Besides all that is meant by that is that he shall not charge her Term with a Rent 1 Ro. Abr. 344. 5. & 346. 2. But I question [52] Whether the Law be so at this Day
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the Husband's Power over the Wife's Term being enlarged sine Coke wrote in the Instance just now mentioned and it is cer- tainly absurd a Man should have a Power of disposing and not of charging Then our Case is different too Here is a Mortgage and the Estate and Interest become absolute in the Law for the Term by nonpayment of the money and only an Equity of Re- demption left in the Mortgagor
Randolph & Deft. Slaves here are to be considered as Chattels Now the Property of a Chattle cannot be divided so as that Part of the Property shall vest in one and Part in another But when a Chattle is given to one for Life with Remainder over the Devisee for Life has only the Use and the Property vests in the Remainder man Tis upon this Distinction alone that Re- mainders of Chattles are allowed for if the Property vested in the first Devisee the Remainder over must be void because the Gift of a Chattel for an hour is a Gift forever That the Wife here having only the Use and no Property this Use vested in the Husband only during his Life but he had no Power of disposing so as to conclude the Wife after his Death tho' the Disposition might be good during his Life and cited 1 Inst. 351. a. where a difference is taken between a Property and a bare Possession as Where a Woman has Goods as Bailee or Ex'trix this bare Posses- sion is not given to the Husband by the Marriage He also cited Mor. 522. Thomson v. Butler where the Husband's Release of the Wife's Annuity was adjudged no Bar after his Death, And mentioned the Case of Brown v. Willis in April 1731. in this Court which he said was in Point He sayed it would be a hard Case upon Women especially Widows marrying second Hus- bands if they happen to survive That it would be inconvenient too since the Slaves might be taken in Ex'on for the Husband's Debts or sold by him to the Prejudice of those in Remainder To which it was replied That it was true in the Language of our Books by the Devise of a Chattel for Life with Remainder over the first Devisee has [53] only the Use and the Property vests in Rem'rman That this this [sic] Distinction was kept up upon the Ground of that Old Rule of Law The Gift of a Chattel for an Hour is a Gift forever but in Effect the first Devisee has a Property during Life having all the Marks of Ownership except that of selling absolutely Whatever. profits can be made are his he may maintain Trover and even Life and certainly this is something more
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than a bare Possession which is the case 1 Inst. 351. and so nothing like this.
. The Use here is coupled with an Interest and wherever there is an Interest there must be some Degree of Property for what is Property but a Power of using and disposing which a Devisee of a Chattle for Life has during a Life Certainly then such Devisee has a qualified Property Nobody will dispute but he may sell during Life Marriage is an Alienation a Gift in Law equivalent to any Alienation in Fact It is agreed the Slaves here vested in the Husband during Life if they vested at all they must for the whole Interest the Wife had it being all transferred by the Marriage
It is absurd to talk of the Hardships upon Women unless it be a Hardship that any Thing should vest in the Husband by the Marriage Is it harder that a lesser Interest should vest in the Husband by the Marriage than a greater The Argument from Inconvenience is full as ridiculous since since Chattels so taken may as well be taken for the Debts of the Wife as for the Debts of the Husband or sold by her in prejudice of the Remainderman It may be an Argum't against allowing such Devises at all but is none ag't the Husband's Right in such Case.
Judgment for the Deft. per totam curiam præter Lightfoot &. Tayloe.
A like Case between Clements & Walker was argued in April 1739. And the same Judgment given fr Randolph, Grymes, Carter Diggs & the Governor. Custis & Robinson con.
STRETTON V. MARTIN
Debt on Bond with Condition to pay a certain sum so soon as a Release should be procured from the owners of the Ship Prince Eugene of all their Right to said Ship and [54] delivered to John Willis Agent of the Obligor in London Deft. pleaded the P'lt. did not procure such Release and deliver the same to Willis The Plt. replied that he did.
Upon Trial of the Issue joined the Plt. produced a Certificate under the hand of Willis that such Release was delivered to him which Certificate was proved to be signed by Willis.
It was objected that this was no Evidence If Willis was present in Court he must give his Evidence upon oath Therefore at least he ought to have made an Affidavit of the Truth of this
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Certificate and that sworn before the Lord Mayor would be good Evidence by the late Act of Parliament. But this Certifi- cate was no more than an assertion without Oath which was never allowed as Evidence in any Court E contra. Tho' the general Rule of Law be that every Witness must testifie upon Oath the Case here is very different Willis is appointed the Deft's agent for a particular Purpose Now if the Defendant himself had acknowledged under his Hand to have received such Release it would certainly be good Evidence. By the Same Rule this Certificate is Evidence For Willis is in the Place of the Defendant and the Defendant is bound by his Act.
To which it was replied We must be in an unhappy Circum- stance if the Certificate of our Agents in England without oath shall be Evidence of any Matter of Fact that may affect our Property. It is a Case of general Concern and no body knows whose Turn it may be next. It is true where a man appoints an Attorney or Agent for a particular Purpose he is bound by his Act. But that is not the Case. Willis here was to be purely passive to receive the Release if he he has done so no doubt we are concluded but this we say ought to be made appear by something more than a bare say so. If the Certificate be true Wills may easily make an Affidavit and there is no Reason in this Case his Word should be taken.
The Court was unanimously of opinion that this Certificate ought not to be admitted as Evidence. And so the Jury found for the Defendant. The Plaintiff tendered a Bill of Exceptions (which was sealed in Court) and appealed.
TAYLOR ag't GRAVES. S. C. Jeff. 40. [55]
In Detinue a Case was agreed vizt. R. P. poss'ed of the Slaves in Question by his Will dated in 1712. devises to his daughter Mary the Use Labour and Service of them during her Life and after her Decease the said Slaves and their Increase to fall to her Heirs of her Body lawfully begotten forever.
Mary had issue a Daughter living at the Time of the Devise and the Death of the Testator but died before the Mother who is also dead and the Plt. claims as Heir to the Testator.
Mr. Atty. Gen. fr Plt, By the Act of 1705. Slaves are made a real estate tho' the Law is now altered by the Act of
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1727 with respect to Gifts and Devises of Slaves that they can only be given and devised as Chattels personal. There is how- ever a Proviso in this last Act that where Slaves have been before given for Life and the Remainder thereupon limited to another that such Remainders shall be good in Law to transfer the absolute Property to the Remainder man.
The testator here has given only an Estate for Life to his Daughter with a Contingent Remainder to the Heirs of her Body and there being such when the Contingency happened viz. at her Death the Remainder is void and the Plt. as Heir at Law to the Testator is entitled to these Slaves
Barradall fr Deft I conceive that Slaves in this Case are to be considered meerly as Chattels, but before I speak to that I shall shew that taking them to be real estate the Plt. can have no Title If this was a Devise of Lands Mary would take an Estate tail by the Words of this Will and not an Estate for Life with a Contingent Remainder to the Heirs of her Body It is a Rule laid down in Shelley's Case 1 Rep. 104. b. 1 Inst. 22. b. that where the Ancestor takes an Estate of Freehold a Limita- tion to his Right Heir or Heirs of his Body are Words of Limita- tion and not of Purchase And so it was adjudged 1 Vent. 214. 225. King & Melling and Fitzg. 7. Shaw & Weigh There is how- ever some exceptions to this General Rule in the Case of Wills where the Testator's Intention is apparent to lodge the Inherit- ance in the Issue as Lodington & Kyme and Backhouse & Wills cited Fitzg. 22. Shaw v. Weigh. . See Raymond's Argument in that case In Wild's Case 6 Co. 17. A Difference is taken where the Ancestor has Issue living at the Time of the Devise and where not that in the first Case the Issue shall take by Way of Remainder and so Hale's Opinion seems to be. 1 Vent. 229. Upon the authority of that Case. But I take the Law to be otherwise settled at this Day. Nor is there any Authority to support that Opinion since Wild's Case which too was against the Opinion of two Judges I conceive then by this Devise Mary had an Estate tail and then the absolute Property vested in Her For Slaves could never be entailed before the [56] Act of 1727. And under that Act only when annexed to Lands The constant Resolutions of this Court have been so
On the other side if Heirs of the Body here are taken as Words of Purchase and Slaves are to be considered as real Estate then the Remainder being contingent and void in Event by Mary's
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leaving no Issue the Plt. is certainly well entitled. But Slaves in this Case are no more than Chattels. It is true the Act of 1705 makes Slaves a real Estate to some Purposes but not to all. They are to descend to the Heir if a Man dies intestate and a Woman is to be endowed of them But there is an express Proviso that Sales and Alienations of them may be made in the same Manner as before making the Act. There was some Difference of Opinion in the Construction of this Act which occasioned the Act of 1727. not to alter the first Act but to explain and amend it. And where a subsequent Act explains a former it cannot be said to alter it but only points out the true Construction. The words of the last Act respecting the present question are worthy observation. It recites the Difference of Opinion in constructing the first Act and then Enacts "That the said Act shall hereafter be construed and the true Intent and Meaning is hereby declared to be" No other Construction then can now be made than what is hereby declared to be the true Construction.
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