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 9
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This last indulgence is enlarged by the 12. Ann. Cap. for even after the year the Goods or produce are to be returned to the Exchequer and delivered to the Owner upon Affidavit before a Baron
So that Goods in such Case do not come under the Denomina- tion of Wreck in Judgment of Law tho' they may be called so in common conversation The property remains still in the Owners and is not forfeited And therefore the reason upon which the Law is founded that Felony cannot be committed of a Wreck does not hold
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But here the Goods were not thrown ashore the People were endeavouring to save them and the Prisoners did go abroad and rob them
3. Indictment good Cujusdam ignoti Hawk. 94. 29. Dalt. cap. 156. Dy. 99. pl. 61. 1. Hales P. C. 512. So for Murder cujusdam ignoti 2. Hales 181. The goods in such case belong to the King The Law will sometimes feign a property rather than suffer a Criminal to escape as for robbing a Church in Vacation Indictment may be Bond Capellæ in the custody of such a one So Bona Domus & Ecclesia
But here the Master has a kind of special property which answers 8. Mod. 146. for there it might be the Goods were the Accused's but here it is otherwise
The Court gave Judgment upon the 2d point only viz. that the Goods were Wreck and Felony could not be committed of them And so the prisoners were acquitted
[87] In the Court of Oyer & Terminer following, one Cross was Indicted for Horse stealing And upon the Evidence it appeared the Horse belonged to one Buckner in Gloucester and had stray'd into Prince W'm where he was taken up by one Earl. and kept on his plantation 3 or 4 Months From whence the Prisoner took him apparently with a Felonious intent having offered to sell him Earl had published notices at the Churches as the Act of Assembly directs
The Court started a doubt that this Horse being a Stray as they termed it Felony could not be comitted by taking it To which it was answered
A Stray is defined to be a Beast found wand'ring about the fields whose Owner is unknown Pecus quod elapsum a custode campos percvial [sic] ignoto Domino. Spelman in Verl. Terms of the Law
By the Law of England Strays were originally in the Crown tho they are now generally in the hands of Subjects by Grant or Prescription as Lords of Manns &c. When a Stray is found and seized by the Lord He is to make Proch. at the 2 next Market Towns 3 several days and if the Owner does not appear within a year & day It is forfeited to the Lord By a Stray here we " mean much the same thing as in Engiand By the 4. Ann. 13. It seems as if any person may take up a Stray The taker up is to set up notice at the Church and Court House And if the Owner does not appear in a year the Stray is to be valued The
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property is vested in the Taker up but he is answerable for the value to the Owner
It is the Current of our Books that a man cannot commit Felony of Wreck Treasure Trove Waif Stray or such like Which however ought to be understood under some restrictions
For I take it the rule only holds while the Beast is actually wand'ring or at large And that after Seizure by the Lord Felony may be committed of such a Beast as well as any other Dalton and Hawkins in Speaking of this matter are both express that Felony cannot be committed before Seizure Dalt. Just. 373. 1. Hawk. 94. Sr. E. Coke and Sr. M. Hale both intimate the same If any find Treasure Trove Waif or Stray and convert them it is no Larceny says Sr. E. Coke 3. Inst. 108. Sr. M. Hale puts the Case of a Man's finding a purse in the Highway which no circumstance can make Felony he says And then adds the like in taking of a Wreck Treasure Trove a Waif or Stray 1. Hale 506. Which passages I think plainly shew that these authors mean a Taking before Seizure
Nay Sr. M. Hale adds that the Party taking them must really believe them to be such at the time for otherwise says he Every Felon would cover his Felony with that pretence Ibid.
[SS] So if a Horse strays into a Neighbour's Ground or Com- mon it will be Felony to take him Ibid.
Thus even before Seizure under some Circumstances Felony may be committed of a Beast that is a Stray
Then the inconvenience in this Country will be very great if when a Horse gets out of his Owner's Inclosure and happens to be taken up for a Stray He may be stolen with impunity
But the Court were of Opinion that it was no Felony And so the Prisoner was acquitted.
There was I think only 6 Judges ag't 5
APRIL COURT MDCCXL.
JONES &c. v. PORTERS In Canc. Jeff. R. 62. S. C.
See 2 Hop. 101. the Argum't at Law intended to be made before the act of 1734 to prove that the private exam. ought to be presumed
Bill sets forth
That W'm Porter & Jane his wife in right of Jane were seized in Fee of 99 A of Land & 400 a. in Mid'dx & agreed to sell the 99a. to Tho's Jones Plt. Johns father & 400 a. to Plt. Roger and
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accordingly by Deed dated 1703 between Porter & Ux'r & said Tho's Jones conveied said 99 a. to Thos. Jones in cons. of 3960 lbs. Tob'o And by another Deed in 1704 betw. Porter & Ux'r & Plt. Roger conveied the 400 a. to Plt. Roger in Cons. of £160 Sterl. And in both Deeds Porter and his wife covenant for further Assurance and they also gave a Bond to Plt. Roger for perform- ance of Covenants
That Porter & Ux'r came to Court to acknowledge these Deeds but by the mistake or ignorance of the Clk. the Entry of the Acknowledgment is that the wife relinquished her right of Dower And no Notice is taken of the privy Examination
That Porter died in 1705 & Jane his wife survived him & died in 1709 leaving Issue Francis Porter her eldest Son and Thomas Jones died many years ago leaving Issue Plt. John his eldest Son And Plts. continued in quiet possession till 1732 when Francis Porter Son & heir of said Jane brought an Ejectment for recovery under pretence his Mother was not privately ex- amined And upon a [89] Special Verdict had Judgment to recover and threatens to sue out Hab. fa. poss. tho' it is plain upon the face of the Deeds Defts. Mother intended to convey & she always acquiesced under it never pretended she was not privately examined but on the contrary in her Widowhood declared she had joined freely & voluntarily in the Sale & was satisfied with it
Francis Porter died pending Ejectm't & Defts are his Heirs at Law And the end of the Bill is to have the defect of the private examination supplied And the Defts. to make a perfect & absolute conveiance the Plts. being purchasers for a valuable cons.
The Defts. being Infants by their Guardian put in a Plea & Answer They plead the Act of 1734 which Enacts that where the Clk. has not taken notice of the private Examination it shall be taken the feme was not examined.
And for Answ'r say they were Infants at the time of the Transactions charged in the Bill & know nothing of them And hope the Court will not compel them to part with their Inherit- ance legally descended to them And pray to have the benefit of the Judgm't at Law
The Proofs in the Cause are very short Only one Witness W'm Hammett who says he was in Company with Jane Porter in her Widowhood & asked her for what reason she agreed to
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sell the Land to the Jones's She answered that she nor her family could not have their healths upon nor make Corn for support of their family That tho' Mr. Jones thought he had a good Bargain she wished it might prove so And was glad the Land was sold 1
There need be little say'd to the Plea which seems quite unnecessary We don't pray this Court should decree that the Woman was privately examined but to have the defect or want of that Circumstance supplied I shall never pretend to say that a Court of Equity can controul an Act of Parliam't or Act of Assembly however severe it may be upon particular Persons And we cannot help thinking this Act somewhat severe upon us being made while the Suit at Law was depending
We allow then that the Woman was not privately examined the Law has declared so & we must submit The question prop- erly before your Hon'rs & the only quest. is whether a Court of Equity will supply a defect of this kind when it appears as I think it must be allowed to do in this Case that she had agreed to part with her Inheritance & was consenting & willing without the Coersion of her [90] husband.
This consent & agreement appears from the wifes executing the Deeds the Grant & all the Covenants are in her name as well as the Husbands. She enters into the Bond for performance of Covenants And she comes to Court in order to acknowledge She acquiesces under the Deed And declares in Widowhood that she had agreed & was glad the Land was Sold These Circumstances and Proof must be convincing that the Woman was actually consenting and willing to part with her Inheritance
Then I say whether the want of a private examination may be supplied by a Court of Equity. Or whether the Heirs of the Woman shall not be compelled to make a good & legal Conveiance is the Question before the Court And I hope I shall have nogreat difficulty to perswade your Hon'rs that we ought to have such a Decree & that the same is consistent with the constant course of Equity in cases of the like nature
This method of the private Examination of femes covert is peculiar to the Laws of England renown'd for its great favour & regard to Woman It was Introduced to preserve & protect the Inheritance of the wife from the arbitrary Will & Disposal of the husband that she might not be compelled by his threats or cruelty to part with it against her Will It is nothing more
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then than a particular mode or ceremony instituted for a particu- lar purpose And I humbly conceive that if the end for which this Ceremony was introduced can appear to have been answered that is if it appear that the wife was not compelled against her Will. It is the same thing in natural Equity & Justice as if the ceremony had been ever so formally complied with
The Law has appropriated particular forms and ceremonies almost to every kind of Conveiance Livery is essential to a Feoffment & a Surrender to pass a Copyhold And the Courts of Common Law that are tied up to strict & rigid rules will never dispence with the want of these Ceremonies But it is the peculiar province of Equity to supply these defects Especially in fav'r of a Purchaser for a valuable cons. as we are It is even a kind of Maxim that Equity regards the Substance & not the Circumstance of every Act
To examine this Case by that Maxim Does it not appear here that the Woman was willing & intended to part with her Inherit- ance And is not that the Substance of the Act The defect is only in a Circumstance the want of private Examination
[91] The Cases in the Books are numerous where Equity has supplied the want of Livery in a Feoffment & want of a Sur- render in passing a Copyhold in fav'r of Purchasors & sometimes even in fav'r of younger Children. I will beg leave to read two short ones for the Courts Satisfaction Thompson v. Atfield 2 Ch. Rep. 216. Hardham v. Roberts 1. Vern. 132.
These Cases may suffice to shew the constant Course of Equity to be as I have say'd viz. to supply defects in Conveyances in fav'r of Purchasors
Now if Equity will supply the want of Livery in a Feoffment & the want of a Surrender in passing a Copyhold Which Ceremonies must be allowed to be as essential in point of Law to the respective Conveiances as the Examination of the wife can be where her Inheritance is to pass I shall beg to know what good reason can be given why a Court of Equity should not interpose & assist an honest Purchasor in the one Case as in the other when it is manifest it was the voluntary Intent of the Wife to pass her Estate
If the motive & reason of the Determination be considered it will appear they have as great weight in the present Case as those cited. The true reason as I conceive is because when there appears a fair contract between two parties & one has paid his
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Money for the Land the Vendor is become a kind of Trustee in Equity for the Vendee & so compellable in Equity to make or perfect a Conveiance as the Case may require that the Vendee may have the legal as well as equitable title in him
Now I will beg leave to suppose that Porter & his wife were now alive And this Suit was brought ag'st them instead of the heirs of the wife Upon the Proof there is in this Case that the Wife was consenting & that the Purchase Money was paid I presume there would be no manner of question but that we should have a Decree we now seek for ag'st them to perfect the Conveiance or that we should enjoy ag'st them & their heirs Nay tho' the Woman should deny her consent if it was made evident by Proof And the Purchasor in Confidence of it had paid the Money Equity would without doubt consider such a Pro- ceeding as a fraud & relieve ag'st it
Now I would fain know what greater Equity the heir can have than the Ancestor The title they derive is under this ancestor And the same Equity that would run ag'st the An- cestor must run ag'st the Heir If then it be allowed that we could be relieved ag'st the Ancestor as I think cannot fairly be denied I do humbly insist that we are intitled to the same relief ag'st the now Defts. her Heirs
[92] Obj. No instance of Equity relieving in such a Case in England.
Answ'r That is not strange because it is a Case that never could happen in England I mean there never could be such a question.
The only way for a feme covert to pass her Inheritance in England is by fine or recovery And tho' she ought to be privately examined Yet if a fine is levied by the Husband & Wife & the Wife is not examined it shall bind her and her heirs Cokes Reading Sect. 7. So that when the fine is once levied the Pur- chasor is secure & has no occasion to apply to a Court of Equity tho' the feme in fact was not examined
Hence it is plain this is a question that never could be made in England And therefore it is no wonder we meet with no Cases in point But I think there are Cases where a Court of Equity has done as much or more & in instances that must be allowed to be as strong as this because the Ceremony of private Examina- tion must have been dispenced with.
Baker & Child 2 Vern. 61. It seems to be mentioned by the
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Court as an established rule that where a feme covert agrees to join with her Husband in making a Surrender or levying a fine tho' the Husband die before it be done Equity will compel her to perform the Agreem't
(?) Q. if this be not meant of an Agrem't before Marr.
If where there is only a bare Agreem't of the Wife Equity will compel her to perform it. I must submit if there be not a much stronger reason in this Case where an Agreem't does not only appear but the Wife atually executes a Conveiance which happens to be defective only in a Circumstance
I rely upon our being an honest Purchsor for a valuable cons. Purchasors are ever favoured in Equity And the Court will often stretch in their fav'r Indeed nothing can be more consonant to natural Justice than this that where a Man has paid his Money he should have all the Assistance of the Law to protect & secure him in the Pos'sion of the thing purchased
If this Case be considered only under the notion of an Agreem't (and surely the Agreem't of the Wife in this Case cannot be controverted) I humbly conceive this Court ought to interpose upon the Authority of the Case just cited. It is indeed the peculiar Province of Equity to compel the specific Performance of Agreem'ts Even where the Party may have remedy to recover Damages at Law And in this Case we can have no effectual remedy at Law the Husband is dead Insolvent And we must : intirely lose our Purchase Money & Improvem'ts unless this Court will assist us
Fraud Accident & Trust are say'd to be the three principa [93] things about which a Court of Equity is conversant
In this Case there is a fraud on the Defts part that they would take Advantage of the defect in their Ancestors Conveiance
There is Accident in two instances viz. the Mis Entry of the Clk. & the death of the Woman
And there is Trust by the paiment of Money & the wife's Agreement
This is undoubtedly a Case of great Compassion Here is an honest Purchasor before the Court And the only objection to his title is a defect in the Conveiance & that only in point of Cir- cumstance or Ceremony This Defect not attempted to be taken. advantage of by the Grantor but the Heir after a quiet possession of 30 Years contests the Act of the Ancestor always acquiesced
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under by her A Purchasor without any remedy unless assisted by this Court The relief sought ag'st no rule of Equity Attended with no inconvenience Ag'st no Act of Parliament Equitable & reasonable in itself & agreeable to the Course of Equity in similar Cases And if it be so If the thing desired be no more than natural Justice will If it neither interfere with nor violates any one established rule of Equity There can want neither Argum't. nor precedent to induce a Court of Equity to Decree for us
Francis Fr Deft.
The end of this Bill is to repeal an Act of Assembly Equity cannot Decree ag'st an Act of Parl. There is no Instance where a Stat. requires a particular Act for transferring an Inheritance that a Court of Equity will dispence with that Act If Ten't in tail agrees to levy a fine & dies before it is done Equity will not compel the issue in tail to convey Nothing but the actaul levying the fine can take the Inheritance from the issue If a Bargain & Sale be made without Inrollm't Equity will not supply it Nor any Circumstance that is required by the Stat. of Frauds as to Wills It is not the Province of Equity to relieve ag'st Blunders And to decree in this Case for the Plt. will be to annul a Law made for securing Women's Inheritances The rule of the Civil Law is where Equity would annul a Law the Law must prevail
2. Vide the case of Blades vs. Blades Al. Ca. Eq. 358.
To which it was answered
What is desired by the Bill will neither annul the Act of Assembly or be contrary to it The End of the Bill is not to establish the Woman's Conveiance which is allowed to be defect- ive but to compel a better Conveiance to a Purchasor for a valuable cons. This sufficiently obviates all that has been say'd about decreeing ag'st [94] an Act of Parl. As to the Cases put they are by no means parrallell The issue in tail shall not be compelled to convey where the fine is not perfected because he does not come in under the Ten't in tail but by force of the Gift in tail The Ten't in tail in his life time would be compelled to levy a fine if he so agreed And so here the Woman would be compelled to make a better Conveiance if she was alive to the same Equity must run ag'st her heir As to the Case of Inrollm't tho' Equity would not decree the Deed good if not Inrolled Yet it would decree a better Conveiance to a Purchasor which is
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all we ask And as to the Stat. of Frauds the same Answer may be given as to the Case of Ten't in tail We do not attempt to set this Conveiance up as good but desire a better because it is not good. Besides surely there is a difference between a Purchasor & a Devsee And tho' it is say'd it is not the Province of Equity to relieve ag'st Blunders Yet wee see nothing is more common than for Equity to relieve ag'st Mistakes & defects in Conveiances & especially in fav'r of honest Purchasors.
In this Case the Bill was dismissed by the Opinion of a great Majority of the Court.
Deeds acknowledged to be inrolled but not inrolled, yet good Hutt. 1. 1 and. 229. Dyer. 355. a. In Cases of fraud, Equity should relieve even ag'st the Words of A Statute 1 W'ms 620. Parol Evidence admitted to shew that a feme covert Surrend'red her Whole Estate tho' it was mentioned on the Roll but of a Moiety 2 Vern. 547.
TUCKER &C. vS. TUCKER'S Exors. In Canc.
The question was upon these Words in the Testator Tucker's Will " I give all my ready money and outstanding debts to be " equally divided between Robert Tuckor, John Tucker, John "Cooke, Robert Cooke & Mr. Jacob Walker's Children And in " Case any of Mr. Walker's Children die before they come of "Age that their parts go to the Survivor of them " Children."
Whether Walkers Children who are four in number shall have cach of them an equal Share with the Cooks & Tuckers or only one Share among them
Barradall Fr the Plt. I apprehend it to be pretty clear from the Words of this Clause that the Tes'tor intended Mr. Walker's Children should stand in the place of one person from the manner of his expression for why should not he have named them par- ticularly as he does the Cookes & Tuckers if he designed each of them the same Share
But when the whole scope of the Will is considered The An- swer [95] of Boush one of the Defts. who wrote the Will & other Circumstances attending this Case I hope the Tes'tors Intention will appear very clear to give no more than a fifth part to them
It will be agreed I presume that in Devises concerning Chattels or personal Estate parol proof & collateral Circumstances may
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be admitted to explain a Tes'tors intention that appears doubt- ful from the words of the Will
The Cases to this Purpose are numerous 2. Vern. 99. Pring & Pring ... 252. Countess of Gainsborough ag'st E. of G. . 506. Oldham ag't Lichford 517. Pendleton ag't Grant .. 593. Cuth- bert ag't Peacock. 648 Lady Granvil & al vs D-ss of Beaufort. 673. Wingfield ag't Atkinson. 675. Ball ag't Smith & Littlebury & Buckley there cited. Mod. Ca. L. & Eg. g. Rachfield & Careless. Doyrell & Molesworth Ch. Ca. Abr. 231. 3.
These Cases proove that parol Proof & collateral Circumstances are admitted not only to explain but sometimes to controula the meaning of words in a Will.
a. Parol evid. never admitted to contradict express words Talb. 242.
Now the Proof & Circumstances in this Case are 1. that the Writer of the Will Boush one of the Defts. apprehended the Tes'tors meaning to be to give only } to Walker's Children & he gives such reasons for it as I think must convince everybody else viz. that the Mother of these Children who was dead at the time was but in equal degree with the other Legatees She was the Sister of the Plts. And because if they were to have half they would have more than } of the whole Estate And because Tes'tor did not think of making Mr. Walker his Ex'or till put in mind
I must dwell a little upon each of these reasons
1. That the Mother was but in equal degree with us. It is a natural & reasonable Presumption that a Man has the greatest Affection & regard for his nearest Relations Upon this ground it is that an heir shall not be disinherited without express & plain words which is a known rule of Law And upon the same ground I conceive it is just to suppose In the disposition of Per- sonal Estate a man would have an equal regard to his Relations in the same degree unless there appeared to have been some cause of disgust where his intention is very plain. In this Case the Legatees the Cookes & Tuckers were the Tes'tor's Nephews Mr. Walker's Children his Niece's Children & their Mother dead From this Circumstance no man would conclude the Tes'tor had a greater regard for his niece's Children than his Nephews who are nearer in Relation [96] Especially as in this Case there was so far from being any quarrel or dislike towards the Nephews that from the whole scope of the Will it will appear he had it
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principally in his intention to prefer them & one of them the Plt. actually lived with him And I think I may venture to say the words are far from plain to give each of Walker's Children an equal Share but rather the contrary
2. Reason assigned by Boush is that if Walkers Children have half the ready Money &c. they will have more than an equal Share of the whole Estate Whether it is reasonable to suppose from the Scope of this Will that the Tes'tor could intend to advance these Children so much more than his Nephews I must beg leave to observe a little upon the Will The Tes'tor never once takes notice of Walkers Children Except in the Devise now before us Whereas he speaks of his Nephews in several places gives them several Legacies & makes them Residuary Legatees Which I think is a plain Proof that he had it more in his intention to advance them than Walker's Children whom he only once names
3. Reason is that he never thought of making Walker Ex'or till put in mind which is a further Argument that he had not his Children so much in view or the advancement of them as of his Nephews Some of whom are of his Name
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