1811.

V.
Holmes.

as far as he was suffered by the said defendant to per- OCTOBER,
form, and that he was bound to perform: but the said
defendant, his said agreement and undertaking has not

Sexton
kept and performed, but the agreement hath broken in
this, that he hath not paid the 300 dollars by instal-
ments, or at any time, or in any manner whatever, or any
part thereof, with interest, as he was bound to do; nei-
ther has he given his bonds for 100 dollars each, nor of-
fered to do the same, nor has he given security, or offered
to do so, although he has been often required to perform
his contract aforesaid, but the same to do hath hitherto
refused, and still doth refuse to do; and so the aforesaid
plaintiff saith, that the suid defendant his agreement has
not kept, but has broken the same; to the damage of the
plaintiff,” &c.

Plea non assumpsit, to which the defendant afterwards
added several other pleas.

Verdict and judgment for the plaintiff for 300 dollars damages, with legal interest thereon from the 9th of March, 1804 ; from which judgment the defendant ap. pealed to this Court.

Tuesday, February 9th, 1813, Judge ROANE pronounced the following opinion of the Court:

“ The Court (not deciding upon any other point made, or occurring, in this cause) is of opinion that the judgment is erroneous in this, that there is no promise or assumpsit suficiently averred in the declaration. The judge ment is, therefore, reversed, with costs, and judgment en. tered for the appellant.”

Feb. 101,

1813.

Hairston against Hughes and others.

to pay a debt

be

adminis.

and return of

was not suffin

Before tlie IN an action of debt, instituted in the year 1798, on act of Febria ary 7th, 1814, an administration bond, in the names of Hughes and “concerning executors and others, justices of Henry county, who sued for the beneadministrators,” (sess.

fit of Stephen Smith and Bird Smith, executors of Guy acts of 1813, Smith, deceased, against James Lyon and Sarah his wife

, p. deeree in (late Sarah Lindsay,) Abraham Penn, George Hairston, chancery a. gainst an exe- and Jarrett Patterson, surviving obligors of Sarah Linda cutor' or administrator, say, (now Sarah Lyon) John Lindsay, Abraham Penn, directing him George Hairston, and Jarrett Patterson, the declaration of his testa- set forth a bond, in the usual form, conditioned for the tor, or intes. tate, out of due administration of the estate of Jacab Lindsay, dehis hands to ceased, by the obligors, Sarah and John; and charged,

as a breach of the condition, that in a suit, in the high tered, (with a fieri facias Court of chancery, in behalf of the said Stephen Smith nulla bona,) and Bird Smith, executors of Guy Smith, deceased, against cient evidence the said administrator and administratrix, they were diof a . et to author: rected by a decree of the said Court to pay to the said

an action eveninst elle plaintiffs a certain sum of money “ out of the goods and against the securities in chattels of the said Jacob Lindsay, in the hands of the said tration bond; administratrix to be administered," that sufficient goods cessary to

and chattels, belonging to the estate of the said facob ons sutagainst Lindsay, deceased, to satisfy the said decree, came to the the executor hands and possession of the said administrator and ador administra. tor, suggest- ministratrix, but were by them eloigned, wasted, and ing the levas. tavit.

converted to their own use, whereby the said decree re* See Gone don's ailmi. mained unsatisfied.

Plea “conditions performed,” and issue thereupon, of Frederick, The suit having abated as to all the defendants, except i Jiumf. p.

Niende George Hairston, a verdict was found for the plainBrooking, and others v. Carter's executors, 2 Murf. p. 24 ; Moore's executors v. Ferguson and others, 2 Munf. p. 421.

the adminis

but it was ne

mstrators V. the Justices

1811.

Hairston

tiffs, assessing their damages to 326l. 58., beside OCTOBER, their costs ;

"and that goods and chattels, which were of Jacob Lindsay, deceased, in the writing obligatory aforesaid named, came to the hands of the said Sarah Hughes and

others.
Lindsay, administratrix, and of John Lindsay, administra-
tor, of Jacob Lindsay, deceased, to be administered, of
the value of the damages and costs aforesaid, which they
wasted;" subject to the opinion of the Court upon a
point reserved at the trial, viz, “whether this action

“
could be maintained against the securities of Surah Lind-
say and John Lindsay, on their administration bond,
upon the return of no effects in the hands of the admi-
nistrators,' by the sheriff of Patrick county, on a fieri
fucias which issued froin the high Court of chancery
on a decree which the plaintiffs in this cause had therein
obtained against the said administrators, without first
showing a devastavrt in a suit against the said administra-

tors ?"

The district Court was of opinion that, on this point reserved, the law was for the plaintiffs, and therefore entered a judgment according to the verdict; from which the defendant, Hairston, appealed.

February 10th, 1863, the president pronounced the following opinion of this Court:

“ It not appearing by the decree, which is set forth in the declaration, that a waste of the estate of the intestate is established by that decree against the administrator and administratrix, the principals in the bond ; the Court (not deciding, at this time, what would be the effect of the decree, if it had so appeared, in a suit against the se. curity only, or against the security and the principal jointly) is of opinion that the said judgment is erro

neous

Judgment reversed, and entered for the appellant.

4

VOL. III.

a

Argued May

3arli, 1811, and reargu

Baird against Bland and others. ed Jan. 2014, 1812. 1. If, by a

THEODORICK BLAND and others, children of deed of marringe sertle. Theodorick Bland, deceased, and of Sarah, his wife, also corded, slaves deceased, brought suit in the late high Court of chancery be conveyed against Thomas L. Lee, Peter S. Randolph, Anthony trustees and Thornton, and John Thornton, heirs of Thomas Ludwell their heirs, to the use of the Lee, and others, who were trustees in a deed of marriage wie, for life; and after her settlement between the said husband and wife, before use of thehus their marriage; by which deed, bearing date the 4th of

. band, for life : December, 1772, sundry slaves, and other property, were and after the de:th of the conveyed to the said trustees, to the use of the said Sarah survivor, to

use of the during her life; and, after her death, to the use of the children of the marria e, said Theodorick, during his life, for the maintenance of equally to be divided be- himself and of the children of the marriage, “ in lieu and tween them, satisfaction of any claiyn of dower or distribution which and their heirs for ever; the said Surah might claim in any of the slaves and other deaths of the personal estate of which her said intended husband might wite, the chil

. die possessed ; and, immediately after the death of the marriage are

survivor, the said slaves and other personal estate to be to entitied,

the use and behoof of such child, or children, of the body equitulle, but of the said Sarah, begotten by the said Theodorick, for legal esate. such' estate and interest therein, and for such parts and

2. In such proportions thereof, as he, by deed, or will, might apparents

, in point; and in case no such deed, or will, should be exe

lifetime, be depriveci cuted, then to the use and behoof of all the children of of the slaves, the body of the said Surah, begotten by the said Ther

depart this life, Icav: dorick, equally to be divided between them and their heirs ing children under age, lle for ever; and, in default of such child or children, to the tions does not use and behoof of such person or persons as the said

against the children Sarah, by will, or deed, might appoint." until they at. tain the age of twenty-one years.

3. A person entitled to a legal estate in slaves, may sue in equity to recover them, if there by a multiplicity of suits muy ve prevented : calling on the defendant to discover how long he has had thenu in possessions, and to discover and state an uccount of their profits.

See Alderson v. Biggars and others, 4 H. & M.470., and Bass r. Bass, Ibid. 400

apon

the

dren of the

1

not the

only

to

the absolute

case,

if the

and

1

act of

1811.

Baird

V.

The bill charged, in general terms, the trustees, and OCTOBER, their heirs with misconduct and negligence, by which the plaintiffs, in their minority, both parents having died intestate, and without making any appointment by any Bland an! other deed,) had sustained great losses; and further al. leged, that the plaintiff, Theodorick, attained his full age on the 6th of December, 1797, after which he discovered that a certain John Ba'rd, jun., by some unlawful or covinous means, had obtained the possession of a negroman slave, named W’ill, one of the slaves in the said deed mentioned; and that Lydia Richardson had, in like manner, obtained the possession of another, by the name of Bill; that the plaintiffs had demanded the said slaves, which the said John Baird, jun., and Lydia Richardson, (who were made defendints,) had refused to deliver, although they well knew the same to belong to the plaintiffs, who, therefore, prayed a decree for the said slaves; that each of the said defendants be compelled to discover how long he, or she, had had possession thereof, respectively, and also to discover and state an account of profits. The bill, moreover, contained a prayer, that the heirs of the trustees be compelled to carry the trust into effect. *

Anthony Thornton, eldest son of one of the trustees, by his answer, denied any knowledge of the transactions in question, or any responsibility arising from his father's having been a trustee in the deed, averring, that he was in no manner interested in his father's estate ; from which he was to receive no adyantage; nor did he, by any means, think himself bound to carry into effect the trust in the deed executed by his father; but he had no objection to the plaintiffs' using his name if necessary) in care rying on a suit, or suits, for obtaining justice for them.t

1