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 6
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It is not at all material whether the Case happened before or since the Act of 1727. The Law was always the same This last Act does not alter the first as I sayed It only explains and points out the true Construction And the Words of the last Act are mighty plain (and so indeed I think are the Words of the first) that in Sales Gifts and Devises Slaves are to be regarded merely as Chattles "A Sale Gift or Devise is to transfer the absolute Property as if such Slaves were a Chattle"
Taking then Slaves to be Chattles the Plaintif can have no Kind of Pretence. It will not be denied but that a Chattle may be given for Life with Remainder over It is not material whether the Chattle itself be given or only the Use for Life The Law makes the same Construction in both Cases viz. that the first Devisee has only the Use and the absolute Property vests in the Remainder man. The use only is given by his Will to Mary for Life and after her Death the Slaves are to fall to the Heirs of her Body If Heirs of the Body here are taken as Words of Purchase as Descriptio vel designatio persona the Daughter of Mary took the Remainder as a Person well described and then the absolute Property vested in her and the Slaves . must go to her Heirs and not to the Testator's. If they are not Words of Purchase [57] but Words of Limitation then Mary
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has an Estate tail given to her and such a Devise will pass the absolute Property of a Chattle
But supposing the Remainder void by Mary's leaving no Issue at her Death In that Case I conceive the absolute Prop- erty vested in Mary For I take the Law to be very clear that if a Chattle is given to One for Life or the Use for Life (for there is no Difference) and no Remainder is limited or a Remainder that is void either in its Creation or in Event the absolute Property vests in the Devisee for Life and can never resort back again to the Representative of the Testator, Quere de hoc.
It has been endeavoured in this Case to compare Slaves to Chattels real and many cases there are of Devises of this sort some of which have been cited To what Purpose I am still to learn Cotton & Heath 1 Ro. Abrig. 612. Devise of a Term for Life and after to the eldest issue male Adjudged the Issue male shall have it as an Executory Devise tho' none in being at the Time of the Devise which is stronger than our Case there being here an Heir of the Body living at the Time of the Devise.
Peacock & Spooner 2 Vern. 195. is exactly this Case only stronger as it was in the Case of a Deed A Term was assigned in Trust to permit Husband and Wife and the Survivor to receive the Profits during their Lives and after their Deaths to the Use of the Heirs of the Body of the Wife Here the Heirs of the Body took by Purchase and as a Person well described [sic].
Id. 362. Dafforn & Goodman S. P. adjudged But Webb & Webb Id. 668. the same point coming in Question adjudged the Devisee for Life had the whole Term and that Case is the same with Ours
It is not material to the Plaintif whether the Devisee for Life or the Heir of the Body has the Right for in either Case he has none and I cannot imagine Upon what Rule of Law he can pretend to any
I shall only observe further that in all the Cases upon this subject the Question is between the Heir of the Body and the Executor of the first Devisee who shall have the Remainder But there is no Instance that ever the Exor or Heir of the Testa- tor set up a Title to such Remainder
Judgment fr Deft. per totam curiam but upon what Point I could not learn
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HILL ag't HILL's Executors
This was a Bill in Chancery brought against the Heir to have Possession of the Land delivered to the Ex'tors for executing certain Trusts pursuant to the Testator's Will. The Will had been proved in the County Court and the Heir at Law summoned according [58] to the Act of Assembly But now it was insisted that a Court of Equity would never establish a Will against an Heir without a Tryal at Law 8 Mod. 90.
And per totam curiam. præter Tayloe a Trial at Law was directed.
APRIL COURT MDCCXXXVII.
BERNARD V. STONEHOUSE.
In Ejectment the Term being expired the Question was whether the Plt. might proceed for Damages
The Action of Ejectione Firma is no more than an Action of Trespass in its Nature And was and still is the proper Remedy for a Termor for years who is ejected before his Term ended either by the Lessor or a Stranger In which Action the Plt. is to recover Damages for the Trespass and Injury done him in ejecting him and his Term if there be any to come The Declaration in this Action proves the Nature of it It sets forth a Lease made to the Plt. by virtue of which he entered And that the Deft. with force and Arms ejected him to his Dam- age There is not a Word of recovering the Possession in the Declaration So that as in all other Actions of Trespass Dam- ages are the principal Thing to be recovered And the Term only an Incident if there be any to come Di. 117. Cro. El. 854. Palm. 337. 9 Co. 79. 80. Hale's F. N. B. 505. 506.
If the Plt. enter pending the suit this shall not abate the Action which proves the Term or Possession are not the prin- cipal Thing to be recovered but the Damages F. N. B. supra in the Notes.
The Writ of Quare ejecit infra terminum is not unlike this being the proper Remedy for a Termor for Years where his Lessor ousts him and enfeoffs another. In which Case he cannot have an Ejectione firma against the Feoffee because he
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did not oust him but the Law gives him this Writ In which as in the other he shall recover his Term and Damages And in this Suit if the Term expire pending the Writ the Suit shall not abate F. N. B. 457. Thus it is clear that where there is a real Lease and Ejectm't the Expiration of the Term will not hinder the Suit from proceeding. Indeed it would be absurd and unjust that it should because an injury is done in ejecting a Man for which he ought to have Recompense and this is the Remedy the Law has appointed.
But it seems to be agreed that in Case of a real Lease the Law is so The Objection here is that Ejectm'ts as now [59] practised are all a Fiction, a new Invention to try Titles and there is no real Trespass or Ejectm't in the Case And there- fore the same Rules & Reason cannot nor ought to govern them as when there are real Leases
I admit that most Ejectm'ts now a days are brought to try Titles and that very often there is no real Lease But it is a mistake to say there never is for there is sometimes a Necessity where there is no one upon the Land. And no doubt it some- times happens that a real Termor is ejected and then this is still the only Remedy It is true that the Lease the Entry and the Ouster in these Actions that are brought to try Titles have often no real Existence but are mere Fictions but yet the Con- fession of them upon Record which the Deft. by Rule of Court Is compelled to, makes them have all the Operation and Effect of Realities and the Deft. shall never be admitted to aver against his own Confession Upon Record that there is no real Lease whatever the Truth may be he is estopped from saying it Indeed the Confession of the Lease Entry and Ouster are of no Use if the Deft. may afterwards deny those Facts he has con- fessed
This Practice then as I conceive has not at all altered the Nature of the Action of Ejectione firma but the Declaration the Judgment and other Process is the same as if a real Lease Entry and Ouster was for long before this Practice was introduced it was usual to try Titles in this Action of Ejectione firma.
In ancient Time the usual way of trying Titles and recovering Possession was by real Action The Process of which every body knows is very tedious, and difficult and besides a greater In- convenience attended and that was the Peril of being concluded
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by a single verdict For if a verdict was found against the De- mandant he was forever barred to bring any other Action unless of a higher nature This it was gave Rise to the Invention of trying Titles in this Action of Ejectione firma where the Process is speedy and easy and a Verdict is no Barr or Conclusion of the Right but the Plt. or Deft. may bring another Ejectment if he will In the time of Lord Dier who was made C. J. 1. Eliz. and lived to the 24, This was the Method of Practice in the King's Bench where indeed no real Action can be brought. But then there was always a real Lease sealed and actual Entry and Ouster as is still the Case sometimes.
Lord Dier observing that by this Practice most Men chose to have their Titles tried in the King's Bench which lessened the Business of the Common Pleas he first introduced this Method of obliging the Deft. to confess the Lease Entry and Ouster and established the Practice upon the Foot it is now that upon delivering a Declaration to the Tenant in Possession if he would not appear and confess the Lease &c. Judgment should be entered against him by Default And this Method being found easier than the old way of actually sealing Leases soon became the Practice of both Courts and have continued so ever since. [60] No Man will say that the Nature of this Action is at all altered or changed where a real Lease is sealed altho' the Title do come in Question Neither can it then upon these feigned Leases since by the Confession they have all the Effect of real ones.
It is common in Actions of Trespass for the Title of Lands to come in Question And they are often brought for no other end yet the nature of the Action is still the same and so is the Ejectment.
In 9 Co. 77. Peytoe's Case it is adjudged that Accord and Satisfaction are a good Plea in Ejectment and the Reason given is because Damages are the principal Thing recovered. Those who argued against the Opinion agreed that if the Term expired pending the Writ it would be a good Plea because then only Damages could be recovered.
And I must beg leave to add the Authority of Sr. E. Coke in his 1 Inst. who expressly says that tho' the Term incur pending the Suit the Action shall not abate He takes a Difference where Part of the Action determines by Act in Law and the like Action remains for the Residue and where the like Action does not re-
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main for the Residue. In the last Case he says the Suit shall abate but not in the other and this he illustrates by two examples 1. Of an Action of Waste brought aganist Tenant for another's Life and pending the Writ Cestui que vie dies yet the Action shall go on for Damages and so in Ejectment if the Term incur Yet the Action shall proceed for Damages because in both Cases an Action will lie for Damages only And these Cases are exactly parallel for in the first the Action of Waste the proper and regular Judgment is to recover the Place wasted and Damages but Judgment cannot be for the Place wasted after the Death of Cestui que Vie when the Interest of the Tenant in the Land is determined Yet it shall go on far Damages And so in Ejectment tho' the Term be ended and we cannot recover that yet we may proceed for Damages. I must observe that this Book of Sr. Edward Coke's was wrote long after this new Method of Practice as it is called was introduced And so were most of the Cases cited 3 Mod. 249. is a more Modern Authority And Mr. Danvers who wrote much later has the same Point in his Abridgm't 2 Part 757. In the Case of Shaw & Weigh Fitzgibb. 17. which happened in the 1. of the present King Lord Raymond who delivers the Opinion of the Court says that the Term being expired the Plt. cannot have Judgment for the Possession only for the Damages which is a plain and very recent authority that the Action does not abate by the incurring of the Term
[61] . It has indeed been offered to account for the Opinion by taking a Difference where there is a Verdict and where there is none and yet in the Case of Shaw and Weigh there was a Verdict which there is not in this Case But where is the Sense or Reason of this Difference. The Argument is that by the Ex- piration of the Term the foundation of the Action is destroyed the Lease is expired and it is absurd there should be a Judgment when it is known the Possessoin is the Thing intended to be recovered. Is not this Argument equally strong whether there be a Verdict or not If the Plt's right of Action is really deter- mined by the Expiration of the Lease what good Reason can be given why he should recover after Verdict more than before. In other Cases it is not so but where the Right of Action de- termined a Verdict will not help the Plt. Indeed it would be absurd that it should And therefore the granting that after a
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Verdict the Action may proceed does allow that there is a Right of Action in the Plt. tho. the Term be expired.
This Difference as it has no Foundation in Reason so neither is there any Authority for it. But there are Authoritys. ex- pressly against it. It may be fashionable for any thing I know to despise my Lord Coke and his Authority which is express that you may proceed to recover the Damages tho' the Term be expired. Now how can you proceed to recover Damages if if they be given before. This cannot be sayed with any Propriety and Coke was a very exact writer - 3 Mod. 249. is said to be the Saying of Council. But it is not denied on the other Side and so it is of some Weight Danvers a most accurate Writer and good Lawyer says the Same and lastly Lord Raymond whose Authority alone is sufficient.
The Cases on the other Side cited out of Salk are nothing to the Purpose. The Court refused to enlarge the Term but they did not say they could not proceed for Damages. But say they the Motion would be useless if the Plt. might proceed for Damages That is a great Mistake. Possession is certainly some advantage. In England we know it is a very great one. The Expence and Delay attending Law Suits there is a Sufficient Reason for the P'lt. to move to enlarge the Term to prevent the Charge and Delay of another Suit which he must be at to recover the Posses- sion Death of Lessor does not abate suit tho' it is equally well known to be his suit and not the Lessee's as well as that the Term is a Fiction.
Sal. 254.
No reason that it should abate nor no Inconvenience that it should not. If the Law was so the late Acts to prevent Suits abating in other Cases would have taken in this
Upon this very clear Point the Court at first was against me but upon hearing a second argumt.
Judgment was given that the Plaintif might proceed for Damages by the Opinion of Lee, Tayloe, Randolph, Carter, Grymes, Robinson, Byrd, the Governor Lightfoot, Custis, Diggs con. Blair dubitante.
PARSONS ag't LEE Sherif of Stafford. Appeal. . [62]
S. C. Jeff 49.
Debt for Escape the Deft. pleads Nil debet and the Jury finds a Special Verdict That (Scale) the Prisoner escaped thro' the
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Insufficiency of the Prison and not any Neglect of the Sherif this was in August and in Feb. the Sherif obtained an Escape Warrant and retook him before the Issue joined and he was in Prison at the finding of the Verdict and it is found the Prisoner appeared publickly at K. G. Court house where he lived 2 or 3 Court Days after the Escape and whether this Retaking shall excuse the Escape is the Question.
It is sayed in some Books that the retaking must be before the Action brought or it shall not excuse. But other Books are that a retaking before Issue joined shall excuse Wi. 35. And seems not denied Cro. Ja. 657. And this Opinion seems most reasonable for it will be hard upon the Sherif especially in this Country where a man escapes thro' the Insufficiency of the Prison as this Case is and against the Will of the Sherif that he must be liable if an Action is immediately brought as it may be the same Day tho' he afterwards retake the Prisoner upon fresh suit.
But it will be sayed fresh suit was not made in this Case. The Sherif did not take out an Escape Warrant till 6 months after But what is the Escape Warrant to the Purpose the Sherif might make fresh suit without such Warrant and take him in any other County by the Common Law and the Escape Warrant which is given here by 11 Geo. 1. is only in aid of the Sherif and Plt. Therefore it is no Proof that he did not make fresh suit because he did not sue out an Escape Warrant sooner. Neither is there any Thing in that that the Prisoner appeared publickly at the Court house of another County the Sherif might be pursuing him elsewhere and is not to be presumed knowing of what passed in another County. As to the Distance of time between the Escape and Retaking there is nothing in that he might be taken a Year after the Escape God b. 177.
As it does not appear then that the Sherif did not make fresh suit it ought to be presumed he did For as Escapes are so penal to Sherifs the Judges ough to make such favourable Construc- tion as the Law will permit in Favour of Sherifs who are the Officers and Ministers of Justice and the Judges will never judge one to make an Escape by any strict Construction 3 Rep. 44. Boyton's Case.
And these are certainly very hard Actions upon the Sherif They have always been thought so in this Country and I am mistaken if Sherifs have not been excused where the Escape
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was thro' the Insufficiency of the Prison without the Sherif's fault without any Retaking. Much more here then.
[63] The Plt. not injured having the Effect of her Execution viz. the Body of the Debtor. Most reasonable everyone should bear his own Burthen.
In this case it was adjudged the Retaking would not excuse the Sherif and the County Court's Judgment was reversed.
THE KING ag't HARRISON. S. C. Jeff 50.
The Deft. was presented by the Grand jury for erecting Gates in the King's Highway. The Deft, pleaded a Licence from the County Court To which Mr. Attorney demurred And upon Argument insisted that all Gates erected in the Highway are Nuisances at the Common Law and that the County Courts here had not Power to give Licence to erect a Nuisance he cited Cro. Car. 184 See also 1 Jo. 221. 1 Bul. 203. 2 Ro. A. 137. & Hawk. P. C. 199. 9. 212. 50. For the Deft. it was urged there was a great Difference between England and this Country as to this matter Travellers here are not so numerous nor Wheele Carriages very common So that the Inconvenience could be but small And on the other hand considering the manner of fencing here a small piece of land would be rendered useless if Gates were not allowed. It was further urged that the Act of the 4. Ann. cap. 39. did seem to give the County Courts a kind of absolute Power with respect to Roads.
The Court was unanimously of Opinion that the Plea was good.
OCTOBER COURT MDCCXXXVII. MAJOR ag't DUDLEY in Canc. S. C. Jeff. 51.
A. Bill was brought against the Deft. who had married an Executrix that was dead for an Account of the Testator's Estate come to his hands. The Deft. about twenty years before had exhibited in the County Court on Account of Debts and Dis- bursments paid out of the Testator's Estate to which he made Oath And the same was received and recorded without any Examination into the Truth of those Payments As the children of the Testator came of Age they severally petitioned the County
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Court and some of them brought Suit to have their Share of the Father's Estate. Upon which Petitions and Suits several Orders were made for Persons to settle on Account of the Tes- tator's Estate And in all those Settlements the Account first exhibited by the Deft. was allowed [64] as a good Discharge for so much In the present Case it was referred to Persons to settle an account of the Estate who having some Doubt about allowing this Account they prayed the Opinion and Direction of the Court
The Court was unanimously of Opinion for allowing the Account in Regard to the Distance of Time tho' the Deft. had not one Voucher to produce And as to the Length of Time The Transaction was of little more than twenty Years standing and the suit had been depending ten Years.
HAYWOOD & al' ag't CHRISMAN & al in Canc'. S. C. Jeff. 52.
Henry Haywood possessed of divers Slaves and other Estate by his Will inter al' devised the Guard'nsp of his Children to his Wife and left five Slaves to work and maintain his Wife and Children besides the profits of the Estate he had left them and died without making any other Disposition of these five Slaves leaving Henry his eldest son who dying before his Mother devised the Slaves to the Defts. who after the Mother's Death recovered them in an Action at Law and now a Bill is brought by the younger Children of the first Testator for a share of the Value of the said Slaves.
For the Plts. it was insisted that by the Act of the 4. Ann. 23. they were intitled to a Share of the Value their Father being intestate as to these Slaves.
For the Defts. it was said that there was an Exception in the act of the Widow's Dower the Value of which was not to be divided among the younger Children And that these Slaves were intended by the Testator in Lieu of the Widow's Dower and therefore not to be divided. And of that Opinion were the whole Court.
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APRIL COURT MDCCXXXVIII.
GODWINS ag't KINCHEN'S Ex'rs in Canc.
Matthew Kinchen by his Will after several particular Legacies thus " and all the rest of my Estate Goods and Chattels whatso- ever I give to my Brother W'm Kinchen and my three Sisters Eliza Martha and Patience and James Godwin's three children James Martha and Matthew " The Question was what Share of the Residue Godwin's Children (the Plts.) were intitled to They claiming each a seventh Part and the Defts. insisting they were intitled to no more than a fifth among them.
[65] . Godwin's Children were born of a Sister of the Testator's who was dead and the Writer of the Will proved that after the Tes'tor had directed several particular Legacies he ask'd him how he would dispose of the Rest of his Estate Upon which he answered I give it to my Brother and Sisters And after some Pause added and James Godwin's 3 little Children I can't abide to leave them out put them in for a Share Godwin having four Children then living the Writer ask'd which 3 Upon which the Tes'tor named them (The other Child was so ill his Life was despared of) There were other Witnesses in the Room who heard the Tes'tor say Put Godwin's Children in for a Share or to that Purpose.
Needler for the Plts. This is a joint Devise And so all the Legatees equally interested It differs from the Case of Tucker v Tucker's Ex'ors (post page) Here are not the Words equally divided and the Children here are described by their names which they were not in that Case Where the Law determines the Force and Operation of a Devise the Tes'tor's Intention is not to be enquired into That is only to be recurred to where the Words are ambiguous. Here the Words are very plain to make it a joint Devise and Construction ought to be made upon the Words and the Legal Intent of the Tes'tor as appears by Cox & Quantock 1 Ch. Ca. 238. where it is say'd that when the Intention is secret and not declared the secret Intent must give way to the Legal Intent There is a Difference where the Children are not described by their names and where they are In the first Case they must take collectively as in Tucker and Tucker's Case but
. not in the second As to the Proof in the Case the Witnesses vary I admit that parol Proof is sometimes allowed to explain a
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Tes'tor's Meaning But that is only where it is to corroborate and strengthen the Legal meaning and Intention not where it is to oust it.
Barradall for the Defts. Upon the Words of this Will it is plain enough that Godwin's Children are to be taken Collec- tively as one Person and were so intended by the Tes'tor But when the Proof and other Circumstances in this Case are con- sidered I think the Point is put beyond all Doubt or Question. It is argued on the other Side that this is a Joint Devise and that therefore all must take equally. The Question here is not whether the Legatees take jointly or severally but what Proportion the Tes'tor intended to each To talk then of a joint Devise may serve to amuse but proves nothing to the Point in Question I own this Argument is quite unintelligible to me. If by being a Joint Devise is meant that the Legatees take as Joint tenants and consequently that the Right of Survivorship will take place between them I deny that it is a Joint Devise in that Sense for there can be no Survivorship among these Legatees as is proved by the Case of Cox & Quantock cited on the other side If God- win's Children had not been named it is agreed they must have taken collectively as one Person [66] I ask then whether this Devise might not as well be called Joint in that case as it is now. The naming of the Children can certainly make no Difference. It is a very strange and new Doctrine to say that the Tes'tor's Intention is only to be regarded Where the Words of a Will are doubtful The numberless Cases and perpetual Controversies there are upon the Subject of Devises are sufficient Confutation of such an assertion. Do not our Books tell us that the Intention of a Testator is the Pole star to direct us to find out his Meaning But it is sayed this Intention when secret is not to prevail against the express legal Intent. I do not well apprehend the Force of this Distinction nor remember to have seen it anywhere but in the Book cited on the other side And I must observe that it is only a Remark of the Reporter and the Case itself is quite against his Argument. The Case is Cox & Quantock supra Two were made Executors and the Residue devised to them One died his Adm'r sued for a Moiety of the Surplus and decreed for him for this Reason That the Tes'tor intended an equal benefit to both. This is sayed to be to the Dissatisfaction of the Bar And the Reporter adds his Reason which is so much relied , on in this Case. Tho' all the Authorities since agree with the
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