Reports of Cases Argued and Determined in the Supreme Court of Appeals of Virginia

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hought the goods, was heard to say, before the in-
stitution of the suit, that, when he sold them,
they belonged to the defendant, is not admissible
evidence against the plaintiit. Vaughan's Admi-
nistrator v. Winckler's E reculor, p. 136.
In trespass against an administrator for goods taken
away by the intestate, judgment ought not to be
refersed for concluding, and the defendant may
be taken" &c. instead of, " and the defendant in

mercy," &c. Ibid.
5. Isi trespass for taking and carrying away goods

and chattels, it is sufficient to charge in the de.
claration, that the goods were the oroperty of the
plaintiff, without also chargiug that they were
iaken out of his possession. Donaghe v. Roude-

buush, p. 251.
6. In declaring for the taking away of a quantity of

poultry, consisting of turkies, gese, ducks, and
hens, it is not necessary to state how many there
were of each description; the collective value of

the whole being stated. Ibid.
7. In an action of trespiss on the case against a

common carrier, if it appear, by a bill of excep-
tions, to have been proved, at the trial, that the
defendant fraudulently opened certain packages
and casks, being in his care, and belonging to the
plaintiff, took therefroin a part of their contents,
and converted the same to his own use ; but not
that the said contents were feloniously carried
a way; such offence is to be considered as amount.

ing to a trespass only. Cook v. Darby, p. 444.
8. A declaration, not upon oath, by a person not a

party to the cause, that he committed the tres-
pass for which the suit is brought, cannot be given
in evidence to exculpate ibe defendant. Penner
V. Cooper, p. 458.

1, The Court of Appeals of Virginia will consider

whether a mandate, issued by the Superior Court
of the United States, directing this court 10 enter
a judgment, reversing one which it heretulere
pronounced, be authorized by the constitute
or not, and, being of op nion that such mandate
is not so anthorised, will disobey it. Hutter f.

Marlin, Devisee of Fairfax, p. 1.
2. It is the opinion of this court, that so much of

the 25th section of the act of congress, passed Sep
tember 24th, 1789, entitled, “ an act 10 estabrish
the Judicial Courts of the United States. as cl
tends the appellate jurisliction of the Supreme
Court of the United States, tv judgments pro
nounced by a Supreme Court of a state, is

warranted by the constitution. Ibid.
3. A record legally authenticated of the proceedings

of a court of competent authority, in any other
of the United States, is conclusive evidence in
the courts of this state, to shew that a judgment
was rendered, and the party was compellable to
pay the amount recovered against him ; but it
may be opposed by proof of fraud or collusion or
of subsequent paynents or discounts. Buferd r.

Buford, p. 241.
4. A deed from the marshal of the Federal Court, to

the purchaser of land, sold for non payment
the direct tax, imposed by the congress of the
United States, is not sufficient evidence to sup
port the title of the purchaser on a trial in eject
ment, but other proot is requisite of the authority
of the marshal to make such conveyance, under
the several acts of congress recited cherein. Chris
ty v. Minor, p. 431,

USES.

TRIAL.

1. The plea of " no such record." is not to be tried by

a jury, but by the court, and therefore ought not
to conclude to the country, but praying judgment.
Eppes's Addministrators v. Bagley's Administrator,
pl. 1. p. 466.

TRUST.

1. In a case involving trust and confidence, and in

which it appears reasonable to allow the com-
plainant the benefit of the defendant's oath, re-
liet may be given in equity, although the party
neglected to make the proper defence at law.

Spencer and IPhue v. Wilson, p. 130.
2. A Court of Equity ought not to give its aid to a

plaintiff claiming under a deed of gift from a per.
son who made a previous transfer of the same pro-
perty to another, for the purpose of defrauding
creditors ; the object of the bill being to enforce a
secret trust between such transferor and trans-

feree. Roane's Admr. v. Vidal, p. 187.
3. See Widow; and Redwood v. Riddick G Wife, p.

222.
4. See Trustees; and Ibid.
5. See Partnership ; and Anderson . Bullock and

Marshall, p. 442.
6. See Judgment ; and Mutual Assurance Society v.
Stanard others, pl. 2. p.

TRUSTEES. > See TRUST.
1. A trustee cannot take advantage of the act of lie

mitations, against the claim of the cestuy que
trust, or of persons claiming under him. Redwood

v. Riddick wife, p. 222.
2. A sale of land by trustees under a decree in chan.

cery adjudged invalid, on the ground, that such
sale was not made pursuant to the decree, which
directed as much of the land to be sold as would
pay the debt ; (which excluded the power of sell.
ing in smaller quantities ;) whereas the trustees
sold the same in smaller quantities, at different
times; (a circumstance which might have dimi-

839.

3.
t

1. A deed, being defective, as a feoffment, for fant

of proof of livery of seisin, may operate as a core
nant to stand seised to use, and as such pass the
title to the grantee; for the use is executed mto
possession by the force of the Statute of Use

Rowletts v. Daniel, pl. 2. p. 473..
2. A voluntary deed, July recorded, operating as 8

covenant to stand seised to the use of the grantee,
cannot be limited in its effect by & subsequent
deed from the grantor to a third person. Teid,

pl. 3.
3. After executing a deed operating by way of cores

nant to stand seised to use, the grantor cannot, bs
a deed to a third person, convert his own poster
sion into a possession adverse to that of the grantee.
Ibid, pl. 4.

USURY.
1. The plea of the “ statute against usury" ought to

be received in a Court of Equity, at any tiite
before the decree is tinal, if there be strong red
sons, from the statement in the bill, for believing
that the matter of such plen may be true. Ed-

zey v. Lane's Exccurrix, pl. 1, p. 60.
2. If the party tendering such plea has been improvi-

dently allowed to file a bill of review, which has
therefore been dismissed at his costs, it is unreke

sopable to require him to pay those costs, in a li. mited time as the condition of receiving his plea.

EUzey v, Lane's Executrix, pl. 2. p. 60. 3. If a bond for usurious interest be taken, in consi.

deration of forbearance to bring suit on a previous bond, which, in its origin, was free from ob. jection; it is compelent for the obligor to obtain relief in equity against the obligee. by having such usurious bond canceller, or credit given hini, for the amount of the principal and interest due thereon, against the original bond. And this right is not lost by the assignment of either of the bonds.

Fox v. Taliaferro, p. 243. 4. On a bill of injunction against the assignee in

such case, the obligee being also a defendant, the court ought not to decree that the injonction be dissolved, and the bill dismissed as to the assignee, and that the obligee pay to the complainant the amount of such usurioas bond ; but should ap: point a reasonable time for the obligee to produce to the complainant the bond for the usurious in. terest, or a satisfactory acquittance therefor; and, in that event, should dissolve the injunction ; or (if he do not produce such bond or acquittance) should make it perpetual as to so much : and, in the last event, a farther decree should be made, that the obligee pay to the assignee the sum for

which the injunction is made perpetual Ibid. 5. And if a decree dismissing the bill be reversed,

and the injunction ordered to be re instated, the court reversing such decree, should moreover direet, that, if it shall appear that the wbole amount of the judgment has been coerced from the complainant by the assignee, such tarther decree shall not be entered in f vour of the assignee, but of

the complainant. Ibid. 6. A contract for the sale of 6000 dollars United

States 8 per cent. stock, to be delivered and regularly transferred on a future day, for 6000 dollars current money in hand paid, is not usurious, Buil 1. Douglas, Admr. of Turnbull, p. 303.

dence, oral and written, (without finding the facts
established thereby) is too uncertain and insuffi.
cient for a judgment to be founded thereupou.

Blank's Administrator v. Foushee, p. 61.
2. An executor, bing sued on a bond of his testator

of more than twenty years standing, was advised by his counsel to rely on the presunspriun of pay. ment arising from the length of time, and, supposing such presumption a sufficient defence, nr. glected to fortify it by other testimony, which was in his power. In consequence of evidence given by one of the jurors in ihe jory room, a verdict was found against him. He moved for a new trial on that ground, but was denied it. He afterwards obtained a new trial, by applying to a Court of Equity, on the ground of mistake and accident,

Price's Executor v. Fuqua's Administrator, p. 68. 3. See Detinue; and Kent v. Armistead, p. 72. 4. if a jury find for the plaintiff the slaves in the de

claration mentioned, and, proceeding to state their names and several values, and recite the name of one of them erroneously ; such error should be corrected by reference to the declaration. Boat

right v. Meggs, p. 145. 5. See Issur; and Ibid. 6. Quære, whether, after a verdict for the defendant,

and a new trial granted to the plaintiff upon his paying costs, the court may pern it the plaintiff to distis his suit, and may render judgment, uhon suih dismission, for the costs; or whether judgment ought to be entered upon the ver dict, on the plaintiff's refusing to pay the costs of the trial; of which refusal such order to dismiss the suit may be consid red sufficient evidence ? Coff

man Richardson v. Russell, p. 207. 7. In the action of covenant, a verdict for a larger

sum than the damages laid in the declaration, or stated in the writ, must be set aside, and a new

trial awariled. Cloud v. Campbell, p. 214. 8. See Interest; and Cakill, Executor of Quin, v. Pin.

tony. p. 371. 9. I! seems, that a special verdict, finding, in hæc

verba. " the proceeilings, in a suit, lo have their full legal effect, agreeubly to the law of evidence," suf ficiently finds the facts appearing io be estab.ished by those procetdings. Chapman V. Armisteads, p.

382. 10. See Rrjoinder; and Totty's Executor v. Donald á

Co. p. 439. 11. See Partnership ; as.d Ibid, pl. 2. 12. On the plea of " no assets," a verdict, finding that

the administrator has in his hands assets belong. ing to the estate of the intestate, without saying to what amount, is defective, and a new trial onght to be directed. Eppes's Administrators V,

Bagley's Adninistrator, pl. 3. p. 466. 13. Issues bring joined on the pleas of payment and

fully administered, if the jury find o for the defendant, he having fully administered all the assets wb'ch came to his hands," the verdict is defective in not being responsive to the issue joined on the plea of payment. Brown, E.xor, of innes, y. Hen.

dersons, p. 492. 14. In such case the judgment will be reversed by the

Appellate Court, although the objection was not taken in the court below: and a venire farias de

novo will be directed as to both the issues. Ibid. 15. See Evidences and Merryman v. Criddle, p. 542.

VARIANCE.

1. In debt on a bond, against the heirs of the obligor;

if the writ (being made part of the record by oyer) be against four persons as heirs of said obligor; but, by the declaration, three erily be charged as such; the declaration is too defective for a judgment to be entered thereupon for the plaintiff'; and such defect is not cured by verdict. W'al. son's E.xor. v. Lynch's heirs, p. 94.

VENDOR AND VENDEE. 1. The heirs of a vendor, retaining the legal title to

the land, ought not to be decreed to make a conveyance with general, but with special warranty, neither ought they to be compelled to pay costs.

Pennington v. Hanby, p. 144 2. A sale ought not to be set aside on the ground of

smallness of price, if that was occasioned by acts

of the complainant. Forde v. Herron, p. 318. 3. See Sale; and M*Clintic and others y. Manns, p. 329. 4. A vendor, by bringing suit, and obtaining judge

ment for the purchase money, ratities and confirms the sale, so that it cannot be set aside at bis instance. Nelson v. Carrington, Executor of Bur.

well, pl. 12, p. 333.
5. Under what circumstances a vendor of land may

recover the purchase money by a suit in equiry,
after bringing his action, and being cast at law.
Hawkins v. Depriest, p. 469.
See Purchasers; Deed; Lands ; Sale.

VERDICT.
1. A verdiet, submitting to the court, for its jadgment

as to the law, certain documents and other evi.

WARRANTY.

1. The heirs of a vendor, retaining the legal title to

the lands, ought not to be decreed to make a conveyance with general, but with special warranty; neither ought they to be compelled to pay costs. Pennington v. Hanby eye others, p. 144.

WIDOW. 1. A decree cannot be made against & widow, (re. any should die;" all which legacies he had gitt
his sons, he did bind them, their heirs and assem
for ever." Under this will, each of the sons werk
an estate in tail, which, by the act of October,
1779, was con erted into a fer sin ple. M Ciette

straining her from conveying her right of dower,)
in a suit to which she is not made a party as wi-
derr, but only as administratrir of the decedent,
and guardian of her children, Pennington v.

Hanby. p. 146,
2.

If a widow esecutrix purchase slaves for the
estale of her husband, by his direction, with mo-
ney left by him for that purpose; but afierwards
hold them as her own, and apply their profits to
her own rise; she is to be considered a trustee for
the bencfit of ins estate, and responsible in eqruly,
but not at law, to his legatees. Redwood v. Riddick

and Wife, p..22.
3. And if she marry again, her second husband, hold-

ing and using the slaves and their profits, is in

like manner responsible. Ibid.
4.

If a testator devise to his widow" her living," upon
a tract of land, during her life; and the same
land to one of his sous in fee simple ; a bill in
equity lies, for partition of the land among the
heirs of that son, in the widow's lifetime, and with.
out making her a party ; for the decree will be
made, “ subject to her rights." M Clintic and others

v. Mann«, pl. 3, p. 328.
5. See Dower; and Wilcx v. Hubard, p. 346.

A plaintiff in ejeciment may recover, notwith-
standing a widow appears to be entitled to dower
in the land in controversy, if such dower has not
been assigned ; fur until such assignment, she has
no right of possession, and the recovery by the
plaintiff is subject to her mutie. Chapman v. Armi.
sleads, pl. 8, p. 382.

and o hers v. Manns, p 328.
6. If a testator devise to his widow her living" op

on a tract of land, during her life ; and the same
land in one of his sons in fee simple: a bill in
equity lies for partition of the land among the
heirs of that son, in the widow's bifetime, and
without making her a party, for the deeree v
be made subject to her righis." Ibid. pl

. i.
7. See Sale ; and Nelson s. Carrington, Executer of

Burwell. pl. 3, p. 333,
8. See Sale ; and Ibid, pl. 9, 13, & 11, p. 133.
9. See Distribution ; and Guerrant v, Jukusen end

others, p. 360.
10. See Evidence ; and Bohn F. Sheppard, pl

. 5. p.
403.
11, A testator. (after directing his debts and some les

gacies to be paid.) bequesthed the residue of his
estate to his children, equally to be divided a moting
them; with a proviso, that, if either of his daugh
ters should die without lawful heir, her part should
be equally divided among the survivors of his
children. One of the daughters took possession of
certain slaves in her share, and having marid,
died. wil hout any child, For more than five yeso
after her death, her husband continued to bold
and use the slaves as his own, without any de
mand being made hy the surviving ehildr n of
the testator. His possession was considered as
vet se to their title; and a purchaser from him was
protected by the act of limitations. Cartond r.
Enos, p. 504.

WILLS.

WITNESS.

1. The magistrates, or commissioners, who bare

taken a deposition should, within the houn ap.
pointed by the notice, open it again, at the
stance of any party who was not present when it
was taken, and wishes to cross-examine the wil

ness. Jeler v. Taliaferro. Suart Co. p. 80.
2. Spe Depositions; and Higginbotham v. Chan:ber
layne, p. 547.

WRIT.

1. See Agreement; and Price and others v. Winston

and others, P 63.
2. If a dispute concerning the division of a tract of

land under a will, be submitted to arbitration in
general terms; and an award be made, slating
that " from the proufs adduced to the arbitraors.
from the renor of the soill, and evident intention of
the testator," one of the parties is entitled to a
certain number of acres, to be divided from the
Test by a specitied line, and the other to the resi-
due of the tract; such award (being free from
objection in other respects) is valid, notwithstand-
ing the line established by it is different from the
dividing line menuened in the will, Hollings.

worths v. Lt.pon anul 1 if, p. 114.
3. A specific articl of personal property may be be.

queathed, though not in the testator's possession
at the date of his will, or at 'he time of his death;
so that, upon the a sent of the executor, the lega.
tee may sue tur it in his own name. Smith and

wvise v. Tornes's Alministrator, p. 191.
4.

A legatee, suing for a slave specifically bequeath.
ed, may prove, by the executor, (if he has no obs.
j. ction to being examined,) his assent to the legary;
but he cannot prove by bim that the restator had

title to the slave, and could bequath it. Ibid.
5. A testator, in the year 1778, "gave and bequeath.

ed" to each of his four sous a tract of laud ; with
several articles of personal property to two of
them; a pecuniary l gey to each of his daugh.
ters; all the rest of his personal estate to his ex•
ecutors to be equally divid d among his sons ;
and if any of his sons should die, their part or
parts to be equally divided among the rest of their
brothers; and likewise with his daughters, in case

1. See Damages; and Cloud v. Campbell, p. 214,
2. If the sherift's return on a writ be, "precuted and

conmitted to jail, før want of bril." judgment
ought not to be entered a ainst the defenbarit med
bail

, but against the defendant enly; notwith-tarde
ing a bond purporting to be a bai toni, ss te.
turned with the writ.” Henry v. Greeni

, p. 227.
3. The effect of a writ of supersedeas may be

tended to a subsequent judgment on a forfeited
forthcoming bon'l without issuing another writ.

Bellv. Bugg, p. 260.
4. See Appenrance; and Wrenn v. Thompson ☺

Veitch. p. 377.
5. Quiere, wh:ther a writ against an infant, and his

testamentary or statutory guardian. or his guar
dian in so age. would be good, without by upecial
appointment by the couri of the person as evar-
diin ad luem ?

Browns r. M Rae's Eati 'ors,
p. 439
6. See del quod damnum ; and Dawson v. Meerns, pl.

1, 2, p. 535.

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