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 8
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Judgment for the Plt.
APRIL COURT MDCCXXXIX.
HARRISON ag't HALLEY S. C. Jeff. 58.
A judgment having passed against the Deft. and Plt. as Sherif The Plt. had an Attachment upon the Act of Assembly against the Defts. Estate And it was against his Lands as well as Goods The Coroner returned that the Deft. had no Goods and that he had attacked a Parcel of Land Upon Which the Plt. had Judgment and the Land ordered to be sold as Goods taken on a Fi. fa.
B. This is the first Attachment that has been granted against Lands since the Stat. 5 Geo. 2. For the more easy Recovery of Debts in the Plantations Upon the Equity of which this Practice is founded
Boys ag't HOGGATT
An Action was brought Upon a Bill of Exchange protested more than 20 years ago The Deft. pleaded he owed nothing and at the Trial insisted that Paiment ought to be presumed at such a Distance of Time according to Holt's Opinion 6 Mod. 22.
The Jury found for the Deft.
See ante. 49. Anon.
WEBB ag't ELLIGOOD Appeal from New Kent S. C. Jeff. 59. [76]
This was an Action ag't the (Appellant) Sherif for an Escape and upon a Special Verdict The Case was the Plt. (Respondent)
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had judgment against one Gilmet in Custody and prayed him in Execution He had been 32 days in Custody before at another's Suit and the Sherif knowing him to be insolvent demanded of the Plt.'s Attorney Security for the Prison Fees who refused to give him Security and thereupon the Sherif discharged him.
The Question in this Case was whether the Sherif was obliged to keep him 20 days before he discharged him And the Court was of Opinion that he ought to have done so and affirmed the County Court's judgment.
ROGERS adm'x of ROGERS ag't SPALDEN S. C. Jeff. 59. Mercer.
The Plt. living in England had taken Proofs of her Debt by Affidavit before the Lord Mayor of London pursuant to the Act of Parliament of the 5. Geo. 2. For Recovery of Debts in the Plantations
And now upon the Trial these Affidavits were offered in Evi- dence But it was objected that when they were taken No suit was depending And the Act only extended to Cases where suits were actually depending And it was sayed the Deft. ought to have Notice And of that Opinion was the whole Court except Grymes and Digges And so the Affidavits were not allowed to be given in Evidence
The Plt. appealed
DUNN & al ag't WYTHE Et Econ. In Chanc.
Samuel Simmonds by his Will gives his his [sic] Wife all his Real and Personal Estate during her Widowhood And if she marries then he gives one Half of his Estate to Dan'1. Dunn's Children and the other half to Matthew Noblin's Children And makes his Wife Executrix who lived several years and never married and is now dead The Question is,
Whether Simmond's Estate shall go to Dunn's and Noblin's Children by Force of the Devise or as next of Kin or to the Wife's Executor
They cannot take by the Devise being limited to them upon a Contingency that never happened viz. the Wife's marriage. The Question then is Whether after the Wife's Death the Estate shall be distributed among the next of Kin Or Whether the Wife
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gained an absolute Property by the Devise to her and being made Executrix.
And I conceive as the Case is the Wife gained an absolute Property by the Devise or if not yet she shall take as Ex'x to her own use and not [77] as a Trustee for the next of Kin
I shall agree that if the Wife had married the Limitation over to the Plts. upon that Contingency had been good and they had been well intitled but that not happening It is quite out of the Question any further than that it may serve to shew the Tes- tator's Intention I shall therefore consider this meerly as a Devise of Chattels during widowhood without any Rem'r over for I take it there is no Difference between a Rem'r upon a Contingency that never happened and no Rem'r at all
Under this View I conceive the absolute Property vested by the Devise during Widowhood The Gift of a Chattle for an Hour is a Gift forever There is no Instance where a Devise for Life has been adjudged to pass only the Use unless there was a Rem'r over. But if we have not the absolute Property by the Devise We certainly have as Ex'x And the next of Kin I conceive can never be intitled as the Case is The making of Man Ex'or is a Gift of Personal Estate in Law But it must be owned that since the Restoration and making the Statute of Distribu- tions there are several Instances where a Man has disposed of Part of his Estate and taken no Notice of the Residuum that in Equity the Executor has been taken as a Trustee for the next of Kin and that the Executor should not have it. But there are many Cases too where it has been adjudged for the Ex'or against the next of Kin especially where the Wife is made Executrix So that there is no General Rule. It depends altogether upon the Circumstances of the Case and the Intention of the Testator.
1 Inst Foster & Munt by Jefferies 1 Vern.
But this Case does not seem to be within the Reason or Rule of any of the Cases in the Books on this subject. They are all where some part of the Estate is disposed of and other Part left entirely undisposed Whereas here the Disposition to the Wife is of the Whole Estate and there is properly no Residuum undis- posed of There is no Instance in the Books of a Question of this Kind But admitting there is no Difference as to this Point We are then to consider whether it can be supposed to be the
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Testator's Intention that the Ex.trix should not have the Residue
It will be said that the giving a particular Legacy makes a strong and violent Presumption and Implication that the Tes- tator intended no more and it is true that in many Cases it has been so adjudged But I deny it to be a universal Rule And that in many Cases especially where the Wife has been Ex'x it has been determined that the Wife should have the Surplus notwithstanding she had a particular Legacy as Ball and Smith 2 Vern. 675. Smith devised to his wife some plate and goods she had as Ex'x of a former Husband The Surplus decreed to her principally because it could not be presumed the Testator intended only an Office of trouble to the Wife but rather of Benefit to take the Surplus Batchelor and Searl Gibb. Rep. 127. where two Strangers were Executors and had a Legacy for mourning and one of them a Horse and Furniture Yet Surplus decreed for them And there sayed that in No Case unless the Implication was Violent and such as could not be resisted the Ex'ors ought to be shut out of the Surplus which. belonged to them as representing the Testator And for many ages they were intitled to it by Law Lady Glanvel and the D-ss of Beaufort 2 Vern. 648. Devise to the D-ss of the Use of the Table [78] Plate and made. her Ex'x Surplus decreed to be distributed but reversed in the House of Lords because she had only a Special Property Mo. Cha. Ca. 10. This our Case, exactly Griffith and Rogers Ch. Ca. Abr. 245. 8. Wife had some books devised. This did not exclude her from surplus. Jones and Westcomb Ibid. 10. Devise to Wife of a Term for her Life and after her Death to the Child she was then enseint with Adjudged this Devise did not exclude her from the Surplus.
No Instance where Surplus taken from a Wife Ex'x except Darwell and Bennet cited in Ball and Smith and there two Strangers were Ex'ors with the Wife and Ward and Lane cited ibid. where a Man lived 20 years after making his Will and acquired a great Estate which went upon another Reason viz. a presumed alteration of Mind with that of Circumstance.
From these Cases it appears there is a great Difference. Where the Wife and where a Stranger are made Ex'ors There is no Instance but in the two last cited where the Surplus has been taken from the Wife And they are very particular
The Reason of the Difference I take to be grounded upon this
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Distinction that where Strangers are made Ex'ors There is Room to presume he intended no more than What is particu- larly devised as not being supposed to have that affection for a Stranger as his Relations, But where the Wife is Ex'x he is presumed to have a larger Share of Affection for her than any Relation and so no Reason to take the Surplus from her.
The great Reason why when a particular Legacy is given to the Ex'or the Surplus shall be distributed is from an implied Intent in the Testator not to give more than he has mentioned Upon this Ground I conceive there is in this Case as strong an Implication to oust the next of Kin For he devises to them only in Case his Wife marries Which may as well exclude them from taking in any other manner as the Executor because of a par- ticular Legacy The Implication I say is as strong that the Testator did not intend them any Part of his Estate but upon that Contingency which never happening they are utterly excluded If he had intended they should take after his Wife's Death it was an easy matter to express it.
So that here is Implication against Implication and the legal Title being in the Ex'or the Determination ought to be in his favour It being a Rule that Law and Equity shall prevail against Equity alone.
It is allowed that the Intention of the Testator is to govern in these Cases and the Intention is to be collected from the Words of the Will I must submit Whether the Intention be not very plain that the Plts. should not take [79] unless his wife married and I conceive that his giving to his Wife during Widowhood and limiting over in Case of Marriage And then making her Ex'x is the same as if he had sayed In case she does not marry she shall have all For the making of a Person Executor in Judgment of Law is a Gift of the whole Personal Estate There could be no use in making her Executrix but to that end . There being no Legacies and all given to her Some men we know are very solicitous about their wive's marrying a second Time and lay them under Restraints And it will be no unreasonable con- struction of this Will to suppose that was this Testator's Intent It is very consistent with the Words of the Will that by making her Ex'x he did intend she should have all in Case she did not marry Here was no Child so Wife was intitled to half By acceptance of Will she is in a Worse Case.
On the other side it was argued that this Devise to the Wife
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during Widowhood gave only an Estate for Life and so only the Use passed That the Testator's Intention was that the children should take upon the Wife's Death or Marriage.
But the Court were of Opinion that the Wife's Ex'or was well intitled principally as I took it upon the Intention of the Tes- tator which they took to be that if the Wife did not marry she should have the whole Estate For the Plts. viz. Dunn's Children, Randolph Grymes, Carter and Lightfoot For the Deft. the Wife's Executor Lee, Tayloe, Robinson, Digges, Byrd and the Governor.
B. There were Slaves as well as personal Estate but no Difference was made.
TIMSON ag't ROBERTSON
Samuel Timson by his Will devises the Premises in Question to his son John and if he died within age or without Issue Rem'r over.
John entered lived to be 21 and by his Will devised to William Timson and died without Issue.
William died without Issue in 1726, 23 years old Lessor [sic] is his Heir
The Questions are 1. Whether John had an Estate tail or Contingent Fee. 2. Whether Plt. barred by Act of Limita- tion
The Testator certainly intended an Estate in Fee on Contin- gency of living to be 21. or having Issue.
If it be construed an Estate Tail as that Estate would be determinable on the Death of Devisee before 21. It will follow that if he had died before 21 and left Issue That Issue would be disinherited which the Testator could never intend.
The Word Issue in a Will is not always a Word of Limitation. It is sometimes and often taken as a Word of Purchase as Designatio personæ. Here it was only made Use of to shew where the Testator [80] intended the Estate given to John should determine viz. if he died under age or without Issue then the Estate was to go over The dying without Issue here are Words of Determination.
Fitzg. 20. 21. and sometimes as Word of Determination.
If the Word (or) here can be taken for (and) it will be mighty clear Then it will run if he dye under age and without Issue
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In Price and Hunt Poll. 645. in a Devise of this Sort it was so taken Devise to his Son and his Heirs and if he dye before he attain 21 or have Issue of his Body living Rem'r over the Son lived to 28 and dyed without Issue In a Dispute between the Heir of the Son and the Rem'r man it was adjudged for the Heir that the Son had a Fee subject to two contingencies Either of living till 21 or having Issue and one of the contingencies having happened the Rem'r could never take Place and there argued that the Word (or) must be taken for (and) as in Lowell and Gerrard's Case there cited Cro. Eliz. 525. Mo. 422. Devise to his Son and his Heirs and if he die within age or without Issue Rem'r over He died before 21 but left Issue And between the Rem'r man and Issue adjudged for the Issue as Heir of his Father and that (or) should be taken for (and)
By the Report of this Case in Croke it seems as if the Judges took it to be an Estate-tail and so is a Case against us But that does not appear in Moor and the Judgment does not prove it because if it was a Contingent Fee the Deft. had Title as Heir to his Father the Devisee as well as if it was an Intail.
Tilly & Collier 2 Lev. 162. Devise to daugh'r and if she die without Heir before 21. to another daugh'r sayed to be an Estate tail Sed 2 vid. Cases cited there in Margin.
Then this Case is Old & Several Resolutions since contrary to it. Hanbury and Cockerel 3 Danv. 179. 4. Devise to his two Sons in Fee provided if either die before marriage or before 21. and without Issue Rem'r to Survivor Adjudged no Estate tail but a Fee on Contingency
Hall & Deering Hard. 148. Before 21 and Without Heirs of his Body agreed to be a Fee but no Judgment.
Collenson & Wright 1 Sid. 148. Before 21 and without Issue adjudged a Fee Contingent.
Sommers & Gibbon Skinner 144. Devise to his Son and his Heirs and if he die without Issue unmarried to his Daughter a Fee in the Son
In all these Cases the Words dying without Issue are not taken as Words of Limitation but as Words of Contingency or Deter- mination to shew where the Estate first given should determine and the other commence viz. If he happen to die not having : Issue And in Consequence if he happen to have Issue the Con- . tingency falls and the first Devisce has a Fee and the Rem'r can never take Place.
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[$1] These Cases are the same with Lowell and Gerrard only the Word (and) is here instead of (or). But (or) in that Case was construed to be (and) as well as in Price and Hunt and so the Reason that governed the Cases the same
Burgis and Hack in this Court April 1736. Devise to his Son and Daughter and their Heirs and in Case of the Mortality of either before 21 or Day of Marriage of the Daughter or without Issue the Whole to the Survivor And if both die before 21 or without Issue Then to the Testator's Right Heirs adjudged a Fee Contingent. In the principal Case this was adjudged an Estate tail upon the Authority of Lowell and Gerrard having been so adjudged above 20 years ago in this Court.
B. The Plt. was certainly barred by by the Act of Lim. tho the Court gave no Judgment on that Point.
For the Plt. .. Lee
For the Deft.
Lightfoot Tayloe
Randolph Custis Grymes
Robinson Carter Digges
Blair
Byrd and the Governor
GOODLOE ag't DUDLEY &c Appeal from Caroline S. C. Jeff. 59.
Bond from Undersherif and Securty to pay 1500 lbs. Tobo. and save harmless and indemnifie High Sherif &c. Deft. pleads Stat 5. & 6. E. 6 against buying and selling Offices and avers the 1500 lbs. Tob'o was for the Deputation of Deft. Plt. demurs
I believe this is the first Time the Office of Sherif has been thought to be within this Stat. For tho' it may seem to come within the general words viz. An Office that concerns the administration and Execution of Justice Yet if we consider the whole law it will appear it could never be intended of the Sherif's Office. The Penalty is that the Party selling shall forfeit all his Right Interest and Estate in the Office and the Party buying be disabled in Law to hold the Office and the Promises and Bonds to be void
Now I would ask what Right Estate and Interest a Sherif has in his Office Every One knows it is an Office of Burthen and Charge Men are subject to Penalties if they refuse to execute it. The Words Right Estate and Interest plainly shew the Act
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intended only Offices of Profit for no man can be sayed to have an Estate and Interest in an Office of Burthen.
Then he is to forfeit the Office. It will be an easy Expedient (tho' the Notion I believe is somewhat new) for a Sherif to get rid of his Office if it is within this Act He has nothing to do but to make a Bargain with an Undersherif for a sum of money [82] and he is discharged. If this could be done Men would not pay such great Fines as they do in London for not serving At this Rate there would hardly ever be a Sherif Every One would be shifting the Office off himself.
But there was no Occasion for this Act to extend to the Sherif There was one made 100 years before 23 H. 6. 10. prohibit- ing Sherifs to let their Counties to farm This is the Stat. Deft. should have taken advantage of And it is a plain mistake in his Lawyer No other Stat. was ever thought to extend to Sherifs as to this matter
There is an ancienter Stat than this of H. 6. viz. 4. H. 4. C. 5. in wch. there is no Penalty but there is in the 23. H. 6. viz. 40. £.
The 23 H. 6. is a private act of which the Judges can not take notice unless it be pleaded 4 Co. 76. b. Hob. 13. 1 Vent. 85. 2 Lev. 151.
But the Question now is Whether the Plea be good which clearly is not. The other Stat. is now out of the Question
It does not appear in the Condition that this tobacco was given for Farming the Office And it might be for another Cause The Demurrer only confesses it so far that it must not be denied on the Argument of this Plea But it is not such a Confession as is any Evidence of the Fact.
But if the 5. & 6. E. 6. does extend to Sherifs it has been adjudged not to be in Force in the Plantations 4. Mod. 222. Sal. 411. Blankard ag't Galdy.
Farming of Offices is not so unlawful as may be imagined The Stat. only extends to Cases where a Sum in Gross is agreed for . If the agreement is to pay so much out of the Fees and Profits and not at all events it is not within the Stat. 2 Sal. 466. Culliford a De Cardonel 468. and 6 Mod, 234, Godolphin a Tudor So if there be a Salary annexed and a lesser sum is reserved it is not within the Stat. Ibid.
The Stat. intended only to prevent Extortion in Offices which Men would be tempted to if they paid a large Sum for a Deputa- tion, at all Events But if they have a certain Profit or chance
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for a Profit out of the Fees they are not to be under the same Temptation.
I shall agree if this Bond is void as to paiment of Tob'o it is so for the Whole. There is a Difference where part of a Condition is void by the Common Law and where by Stat. In the first Case it may be void in Part and [83] stand good for other [sic] Part. But where Part of the condition is against the Stat. it is wholly void. The Reason is because the Stat. says the Bond shall be void and therefore it cannot be set up in Part Hob. 14. Norton & Sims 3 Co. 82. b. 83. a. 1 Vent. 237. I Mod. 37 Carter 229. Pearson a Humes 2 Danv. 21. 8.
Stat. compared to a tyrant Common Law to a nurse 1 Mod. 37.
1 Bac. Abri. 541.
I hope it will be considered how hard a Case it will be upon the Plt. if Plea adjudged good The Whole Bond will be void and he without any Remedy against his Undersherif tho' guilty of ever so many Breaches It will be his utter Ruin and Destruc- tion This Suit is chiefly brought to recover Quitrents for which Plt. himself is Sued.
No Honesty in the Plea Practice usual and under some circumstances justifiable
Judgment for the Plt. that plea was not good per tot. cur. B. In Brownlow Latine Red. 216. 218. This Stat. is pleaded to a Bond for Paiment of money with a Averment that the Plt. sold the Deft. the Office of Undersherif For which money he gave the Bond There was an idle Rep't and a Demurrer But the author observes that the Reason of such a Replication was because the Date of the Stat. was mistaken for otherwise the Plea was good " Sed Quere et Nota the Case of Blankard and Galdy was a Deputation of the Office of Provost Marshall of Jamaica (which is the same office as Sherif with us) and no Exception taken that it was not an Office within the Act.
Vi. Mo. 781. Stockwith & North fined in Star Chamber for that being Sherif of not he farmed his bailiwick ag't the 4. H. 4 .No Notice taken y't it was ag't 5. & 6. E. G.
In the argument of this Case it was sayed that 23 H. C. had no Penalty and therefore 5. & 6. E. 6. was necessary to be ex- tended to the Office of Sherifs But that is a mistake There is a penalty of 406 by the 23. H. 6.
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VIRGINIA COLONIAL DECISIONS THE KING ag't OLDNER & BRILEHAN [85]
The Prisoners were Indicted for Feloniously taking certain Goods the property of Persons unknown.
Upon the Evidence the Case appeared to be that a Ship was Stranded in Chesapeak Bay near the Shore which is in Princess Ann County The Prisoners went on board and took the Goods mentioned in the Indictm't which it was supposed belonged to some Persons that were lost
For the Prisoners it was insisted 1. That this Offence was committed on the Sea and so triable in the Admiralty 2. That these Goods were Wreck And Felony could not be committed of them 3. No property was proved in the Goods To which it was answered
1. The question is whether the place where this Ship was run aground can be taken as part of the body of the County
(43)
This is a new question in this part of the World In England I take it It would be clearly within the County
4. Inst. 240.
By several Statutes in England the Jurisdiction of the Ad- miralty is restrained and is confined to the main Sea or Coasts of the Sea not within the body of any County.
By 15. R. 2. 3. Admiral hath no Jurisdiction of any Contract Plea or Quarrel done within the bodies of the Counties either by Land or Water Except of the Death of a Man or Maihem in great Ships hovering in the great Stream beneath the points of the Rivers
By 27. Eliz. 11. (No such Act now in force or print) giving the Admiralty cognizance of Offences Done on the main Sea or Coasts of the Sea being no part of the body of any County
1 If it be within the County so that a Civil Action will lie a fortiori it ought to be so for criminal matters It is for the safety and benefit of the Subject
2. H. 4. restrains from Suing in Admiralty where Comon Law has Cognizance & gives double Damages
In Anno. 6. H. 6. Action brought on this Statute for Suing in , Admiralty for Trespass taking 3 Ships lying in Bristol Haven and Judgm't for Plt.
Anno. 12. H. C. a like Action for Suing in Admiralty for
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Trespass in entering Ships and carrying away Goods in the Haven of Yarmouth in Norfolk
The Thames at Billingsgate Infra corpus Com.
Replevin for taking a Ship in the Coast of Scarborough No part of the Sea where you may see from one Land to the other
It is safest for the Subject to restrain the Admirals Jurisdic- tion for if [86] the Defts. are tried upon the 11. & 12. W. 3. cannot have Clergy.
This neither upon the Main Sea nor upon the Coasts of it And so must be within the body of some County. It is so near the Shore that the County may easily have knowledge of the Fact and in all such Cases in England the Water is taken to be within the County
2. It is certain Felony cannot be committed of Goods wreck'd till after Seizure The reason is because there must be a property in some prson of Goods stolen to constitute a Felony tho it be not necessary to prove the true proprietor Upon the same reason no Felony can be committed of Waifs or Strays
It is clear then this must be understood of Goods so Wreck'd that they become forfeited either to the King or some other by virtue of the King's Grant
By the Common Law wherever a Ship was wreck'd or cast away and the Goods cast ashore They became forfeited to the King But this was thought extream hard and seemed to be adding misery to the unfortunate and therefore to alleviate the matter a little so long as E. 1. time By the Statute Westm. 1. cap. It is provided that if a Man Dog or Cat escape alive it shall not be deemed a Wreck nor the Goods forfeited but they are to be secured by the Coroner Sherif &c.
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