Ferguson against Franklins. 66 Decided, Feb. 20th, 1819. and conv y ance of land can not be that he was deed was ser. 2. If a tract ed to be sold mises, be sold, of it, not imme and diately on the premises, but within and IT appeared by a special verdict in this case, (which 1. A sale was an action of Ejectment in the Superior Court of Campbell County, brought by John Ferguson against by a trustee, Edmund and Thomas Franklins,) that the defendants. set aside on being seized and possessed of the land in controversy, the ground conveyed it by two deeds of trust, (found in hæc verba) to an Alien a certain Andrew White, to secure the payment of a when the debt to Higginbotham, Brown & Co.; the Deeds empow-made to him, ering the said trustee to sell the land at public auction and when he conveyed for ready money, having previously advertised the the land to time and place of said sale at least four weeks:" that the the purcha trustee, after duly advertising, sold the said land to satisfy the debt, at public auction, "not at the house of Ed- of land, be"mund Franklin, nor on the premises agreeably to the ing advertis "advertisement, (which was set out at large,) but within on the pre"eighty yards of the said house within full view "at the edge of the enclosure of Edmund Franklin, "without his land line about fifteen or twenty steps; "it was believed by some present that they were on "premises:❞ that, at the said sale, the lessor of the plain- ing house, tiff became the purchaser at the price of $1000, which within full he paid the trustee, who paid it over to Higginbotham, about fifteen Brown & Co., and conveyed the land to the said purchas- or twenty yards from er by deed of bargain and sale, found in hæc verba:- the boundbut that the trustee Andrew White was an alien, when ary line; it being bethe deeds were made to him, and when he conveyed the lieved by land. Upon this verdict, the Superior Court gave judgment they were on the premis for the defendants; whereupon the lessor of the plaintiff es; such sale, obtained a Writ of Supersedeas from this Court, alledging being reguerror in said judgment; 1st, "because, altho' it is true respects, "that the trustee was an alien, yet he had no escheatable and no fraud appearing, "interest in the subject, and was merely the organ, mu- is not to be "tually chosen by the parties, to secure the payment of set aside. "the debts for which the deeds of trust were given:-2d, "because the title of the trustee, such as it was, could only have been divested under the laws of this State, the eighty yards of the dwell view of it, & some pre sent that lar in other 1819. Ferguson V. Franklins. 66 cause, FEBRUARY, "by process of escheat, even if it were escheatable; and "no such process had ever been instituted:"—3d, “ bealtho' it is true that the sale was not immediate"ly on the premises, yet it was sold within eighty yards "of the dwelling house, within full view of the same and "of the premises, and with every advantage of examina❝tion, which the deeds and the advertisement under "them contemplated; so that a substantial compliance "with the deeds and advertisement took place, so as to "meet the views of the parties, and answer the purposes "of justice." Wickham and Stanard for the plaintiff in error. February 20th 1819, Judge ROANE pronounced the Court's Opinion that the Judgment be reversed, and entered for the plaintiff. Decided, Feb. 25th, 1819. 1. Upon a Brooke against Barton. AN agreement under seal was entered into, on the Covenant to 8th of June 1804, between Seth Barton and Francis T. make a good title to cerBrooke, by which the former covenanted to make to the tain lots of latter, "a good, legal and quiet title, in and to six lots land. (according to a "or parcels of land, numbered 5, 6, 23, 24, 25, and 26, plat for ex- "in the plat made by Bartholomew Fuller, extending the tending the streets of a "Streets of Fredericksburg, according to the said plat, town,) in"including the use of the Streets and appurtenances therein cluding the use of the "mentioned, to the said Francis T. Brooke, his heirs and Streets, and assigns forever, in the same degree and manner as if appurtenances therein "the said lots and streets were a part of the town of mentioned, "Fredericksburg, on which they bind." and that the Co 66 venantee, his heirs and assigns, may, at all times thereafter, enter into, possess and enjoy the said lots, with the streets, &c., without the let. hindrance or molestation of the Covenantor, his heirs and assigns; a Court of Equity, by Injunction, will compel the Covenantor, his heirs and assigns, to remove all obstructions by them put in the said streets, and open the same to the free and full use of the Covenantee, his heirs and assigns and permit him and them ever thereafter to use the same, without let, hindrance or molestation, See Trueheart v. Price, 2 Munf, 468. 1819. v. Barton. In pursuance of this agreement, Barton, by deed of FEBRUARY, bargain and sale conveyed, "to Brooke, his heirs and "assigns forever, the said lots, with the streets laid down Brooke "in the said plat;" covenanting in the said Deed, that he "and they might, at all times thereafter, enter into, "possess and enjoy the said lots, with the streets, &c., "without the let, hindrance or molestation of him the "said Seth Barton, his heirs or assigns, or of any per"son or persons whatsoever. Nevertheless, he kept the lots and streets inclosed by fences, and deprived Brooke of the full benefit of his purchase; whereupon, the latter exhibited a Bill in the Superior Court of Chancery for the Richmond District, to compel him to remove those obstructions, and to keep open the said streets, and for general relief. The defendant having been served with process, and failing to answer, a decree nisi was entered, and served upon him; and, he still failing to answer, the plaintiff moved for a decree; but Chancellor TAYLOR, "being "of opinion that, as the defendant did not undertake to "open the Streets, he could not be compelled to do it," dismissed the Bill. From this Decree the plaintiff appealed. The cause being submitted without argument, Judge ROANE pronounced the Court's Opinion, that the said Decree be reversed with costs; and (Barton having died since the appeal, whereupon his executors had been made parties by scire facias,) that a decree be entered injoining the appellees, and "those claiming under them, to remove "all and every obstruction or obstructions, by them op"posed, by inclosures or otherwise, to the free and full "use, by the appellant, his heirs and assigns, of the "streets specified in the plat and survey of Bartholomew "Fuller, filed as an exhibit in this cause, and open the "said streets to the free and full use of the said appel lant, his heirs and assigns; and that they permit the "said appellant, his heirs and assigns ever thereafter to "enjoy the use of the said streets, without future let, hindrance or molestation." Decided, March 3d, 1819. 1. In tres the plaintiff, Dimmett and others against Eskridge. GEORGE ESKRIDGE brought Trespass vi et armis in pass for des- the Superior Court of Hampshire County, against Motroying a mill-dam e- ses Dimmett and others, for breaking and entering his rected by close and cutting down his mill-dam; charging also a who gives in special injury, that his credit was thereby ruined, and a transcript of certain Cornelius Finney, who, on the credit of said dam, an Inquisi- and a mill to be erected and supported thereby, had agreed tion upon a Writ of ad to lend him a large sum of money, refused to lend him quod damnum, the Court, on evidence the ant's motion, struct the bent upon the same. The defendants pleaded three pleas:-1st, not guilty, the defend- on which issue was joined:-2d, a special plea, setting ought to in- forth that the mill-dam was built by the plaintiff, of his Jury that it own wrong, and without obtaining leave as required by was incum- the Act of Assembly, across a stream of water called the plaintiff Great Cacapehon, in the said County of Hampshire, to erect his which was of right used as a public highway for the position pre- purpose of navigation; that the mill-dam unlawfully obthe said in- structed the navigation of the said stream, to the great quisition, damage and common nuisance of the Citizens of this and, if they be satisfied Commonwealth; wherefore the defendants, in order to that the said abate the said nuisance, peaceably, quietly and without Idam in the scribed in dam was e rected in a different position, in consequence whereof a ford across the stream, being part of a public road legally established, was obstructed and shut up, that such dam was a public nuisance and abateable by the defendants. 2. In trespass for destroying a mill dam, if the defendants plead that the said dam was unlawfully erected by the plaintiff in a ford where a public road crossed the stream, whereby the said road and ford were obstructed, to the great damage and nuisance of the Citizens of the Commonwealth; and that the defendants, in order to abate the said nuisance, peaceably cut down and removed a part of the said dam; and the plaintiff reply, that he did not, by erecting the said dam, entirely obstruct the said public road and ford, and that the Citizens of this Commonwealth were not altogether prevented from passing the same; whereupon issue be joined, such issue is immaterial, and, after a verdict for the plaintiff, ought to be set aside, and a Repleader directed. 3. A partial obstruction of a public highway, is an abateable nuisance. 4. It seems that, in trespass vi et armis, a declaration charging, by way of aggrava. - tion of damages, a special pecuniary loss, occasioned by the trespass, was good after verdict, even before the Act of Jeofails, which took effect January 1st, 1820 See Russel and wife v. Corne, 1 Salk 119; Todd and wife v. Redford, 11 Mod. 264; Dix v. Brookes, 1 Stra. 61; and Newman v. Smith, 2 Salk, 642. 1819. others. V. force, did cut down, break and remove a small part of MARCH, the said mill-dam; without that they broke and entered the close of said plaintiff; which was the same trespass, Dimmett and &c.; and this they were ready to verify; wherefore they prayed judgment, &c:-3d, another special plea, stating Eskridge. that the mill-dam was, of his own wrong, and without any leave, license or authority, placed by the plaintiff in a public road, and in the ford where the said road crossed the stream called Great Cacapehon; that the said public road and ford were thereby unlawfully obstructed; so that the Citizens of this Commonwealth could no longer use the same as they, before the placing and building of said dam, were used to do, and of right ought to do; to the great damage and common nuisance &c.; and that the defendants, in order to abate the said nuisance, peaceably cut down, broke and removed a part of the said dam; without that &c. To the 2d plea, the plaintiff replied that he did not build and place the said mill-dam across the said stream called Great Cacapehon, of his own wrong, nor had the said stream been used by all the Citizens of this Commonwealth, of right, as a public highway, nor did he, by the said dam, entirely obstruct the navigation thereof to the common nuisance of all the said Citizens, &c.; and concluded to the Country. To the 3d, plea, he replied, that he did not build and place the said mill-dam across the said stream in a public road, then and before that time established by law, and in the ford where the said public road did cross the said stream; nor did he, by the building and placing of the said mill-dam, entirely obstruct the said public road and ford, nor did he continue the same so that the Citizens of this Commonwealth were altogether prevented from passing along the said public road, and passing the said ford, &c.; concluding to the Country, as before. On which replications, issues were joined. At the trial the plaintiff gave in evidence to the Jury, "to support his declaration," a transcript from the records of Hampshire County, of an Inquisition taken by virtue of a Writ of ad quod damnum; whereupon, the de |