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HARVARD LAW SCHOOL 
LIBRARY 




VIRGINIA COLONIAL DECISIONS 

VOL. II 



THE REPORTS 



BY 



SIR JOHN RANDOLPH 



AND BY 



EDWARD BARRADALL 



OF DECISIONS OF 



The General Court of Virginia ccolovu-ij^^nf *v 

1728-1741 



Edited, with Historical Introduction 

BY 

R. T. BARTO N 



BOSTON, MASS. 

THE boston book COMPANY 

1909 



VTK 



Copyright, 1909 

By the boston book company 



JUNE 11.1929 



Th9 RivirdaU Prtss^ Brookling, Mass,^ U, S, A, 



BARRADALL'S REPORTS 



>• ' "t •• ■»' 



BARRADALL'S REPORTS 

Presented to the Virginia State Law Library at 
Richn\ond by Conway Robinson, Esq. 



[1] 

COPY OF SIR WILLIAM JONES HIS MAJESTY'S ATTORNEY 
GENERAL HIS OPINION ABOUT COL. BURNHAM'S WILL 

I, having perused the Will of Lieut. Col. Bumham, and 
the Depositions relating to the same, Am of Opinion; 

That this is undoubtedly a good Will, if not avoided by the 
Act of Parliament made in England, Anno 1677 against Frauds, 
&c. For it clearly appears, the Devisor was Compos Mentis 
and understood himself well and did willingly and with a full 
Desire, both cause the same to be written, and did after sign 
and publish the same. Aiid Whereas there were only two 
Witnesses, who did, in the Presence of the Testator, subscribe 
their names as Witnesses, and more Persons being present, who 
were Witnesses to the same, One of them hath since set his Hand 
thereto; I think, though it was not discreetly done to do so, 
yet, being done, it nothing vitiates or makes void the Will. 

That this Will made in Virginia of Lands there, is not within 
the Compass of the Act above said. So as that it should be 
necessary to have Three ^Witnesses subscribing their Names in 
the Presence of the Testator, (as that Act requires for Devises 
of Lands in England) For though I do agree, that an Act of 
Parliament made in England doth bind Virginia or any other 
of the English Plantations where they are expressly named, 
Yet I do conceive a new Law or Statute made in England, not 
naming Virginia or any other Plantation, shall not take Effect 
in Virginia or the other Plantation, 'till received by the General 
Assembly or others who have the Legislative Power in Virginia 
or such other Plantation, and this upon a double Reason, 

1st. Because the Parliament of England, when they make a 
Law without naming more Places than England as the Extent 
to which it shall relate, are not to be presumed to have Con- 
sideration of the particular Circumstances and Conditions of 



B2 VIRGINIA COLONIAL DECISIONS 

the Plantations, especially considering no Member come from 
thence to the Parliament of England. 

2dly. Because the Plantations have their own Representa- 
tives, and though the Parliament of England hath a superior 
Power, when they think fit in express Words, to execute it; 
Yet it shall not be presumed, that they execute that extraordi- 
nary Power, when they do not in express Words declare it. And 
as this hath been anciently resolved in many Cases with Relation 
to Ireland, So I think the same Reasons hold with Relation to 
the Plantations, And if it should be otherwise this great Incon- 
veniency amongst others would follow. That a Law made in 
England (which relates, if no time be expressed to the first 
Day of the Parliament, and when a Time is set it shall take 
Effect; it is commonly so short a Time as no Notice can arrive 
to the Plantations before it begins to take Effect) should bind 
the Plantations, who have not any ready Means to know it for a 
long Time after it is passed; And so then should be bound by 
Law of [2] which they are, or may be reasonably supposed 
necessarily & invariably ignorant. 

William Jones. 
7 ber 22d 1681. 

A Dispute happened in this Country upon this Will of Col. 
Bumham in the Lord Culpepper's Time; and his Ldp. upon his 
Return to England, stated the above Case to Sir W'm Jones, and 
after he had obtained his Opinion, he shewed it to all the then 
Judges of England, Who declared the same to be Law: And this 
his Ldp. when he came a second Time to Virginia, affirmed in 
open Court at James City County. — I have been informed by 
Mr. Thomas Lee, who found amongst the papers of his Father, 
then I believe, a Judge of the Court, a Memd. to this purpose. 

[Note by W, G.] (All of the foregoing opinion and subjoining memorandum 
except what of the latter is contained within parenthesis at the end, is printed 
in North Carolina Law Repos. 21-23.) 

OPINION OP SIR EDWARD NORTHEY ABOUT ADVOWSONS 

IN VIRGINIA. 

On Consideration of the Laws of Virginia, Provision being 
made Act entitled, Church to be built or Chapel of Ease, for 
the building a Church in each Parish; and by the Act entituled, 
Ministers to be inducted, that the Ministers of each Parish shall 
be inducted on the Presentation of the Parishioners, And the 



BARRADALL'S REPORTS B3 

Church Wardens being, by the Act entituled, Church Wardens 
to Keep the Church in Repair, and provide Ornaments to collect 
Minister's Dues, And by the Act for the better Support and 
Maintenance of the Clergy, Provision being made for the Min- 
isters of the Parishes, And the said Act for inducting Ministers, 
the Governor being to induct the Ministers to be presented and 
thereby he being constituted Ordinary and as Bishop of the 
Plantation and with Power to punish Ministers for preaching 
contrary to that Law; 

I am of Opinion the Right of Presentation to the Church is 
subject to the Laws of England (there being no express Law, of 
that Plantation made further concerning the same) therefore 
when the Parishioners present their Clerks and he is inducted 
by the Governor (who is to be and must induct on the Presen- 
tation of the Parishioners) the Incumbent is in for his Life, and 
cannot be displaced by the Parishioners; If the Parishioners do 
not present a Minister to the Governor within six months after 
any Church shall become void, the Governor as Ordinary shall 
and may collate a Clerk to such Church by Lapse, and his Col- 
late shall hold the Church for his Life. If the Parishioners have 
never presented [3] they may have a reasonable Time to present 
a Minister, but if they will not present, being required so to do, 
the Governor may also in their Default collate a Minister. 

In inducting Ministers by the Governor on the Presentation 
of the Parishioners or on his own Collation, he is to see y'e 
Minister be qualifyed according as that Act for inducting Min- 
isters requires. In Case of the Avoidance of any Church 
the Gov*r as Ordinary of the Plantation is according 
to the Statute 28th. H. 8th Cap 11. Sect 5th to appoint a 
Minister to officiate till the Parish shall present one, or the six 
months be lapsed and such person appointed to officiate in the 
Vacancy is to be paid for his Service out of the Profits thereof 
from the Time the Church becomes void. By the Law above 
stated in this Case No Minister is to officiate as such till he hath 
shewed to the Gov'r He is qualifyed according as the said Act 
for Induction directs. If the Vestry do not levy the Tob'co, the 
Courts there must Decree the same to be levyed. 

Edward Northey 

July 29th 1703. 

[Note by W. G. j (This Opinion and another in the same matter are published 
in Chalmers Col. Opins. (Edn. Btirlington 1858) pp. 66-60.) 



B4 VIRGINIA COLONIAL DECISIONS 

OPINIONS OP S'R EDWARD NORTHEY AND DR. HINCHMAN 

ON THE FOLLOWING WILLS 

William Wilkinson of the Province of North Carolina made 
his last Will and Testam. in Writing Part of w'ch was in these 
Words. 

I give and bequeath unto my Loving Wife Esther Wilkinson 
and to her Heirs forever All my Whole Estate Real and P'sonal 
in what kind soever & wheresoever it may be known or found in 
this Country or any other parts of the World any ways belonging 
or appertaining to me the said W*m Wilkinson. Making her 
the said Esther Wilkinson whole and sole Exe'x of this my last 
Will and Testament to receive and pay all my just Debts and 
Legacies. And farther it is my Will That in Case mysaid ExE'x 
above named shall depart this Life without making of a Will 
or otherwise disposing of this my said Estate or any part or 
P.cel thereof but what shall be remaining at her Death shall 
fall to the nearest of my Relations &c. 

And after the Death of his Said Wife if she dyed without a 
Will or without disposing of the Said Estate he appointed 
several P.sons his Ex'ors whereof Thomas Luton was one who 
was a Relation of the said W*m Wilkinson's. 

Esther Wilkinson afterwards married Coll'o Pollock and dyed 
[4] a Feme Covert but made her Will where she gave All the 
Lands & other Estate given her by her Said first Husband's Will 
(Some few Legacies excepted) to the said Thomas Luton and his 
Heirs forever. 

S'R EDWARD NORTHEY'S OPINION 

I am of Opinion by the Will of W'm Wilkinson his Wife had a 
qualified Fee Simple in the Estate devised to go over as directed 
by the Will if she did not dispose of it, and therefore as to the 
Power of disposing of the Estate it was an Authority in her 
w'ch she might execute, Notwithstanding her Coverture, And 
hath well executed it by her Will, as to the Real Estate, but 
as to the P.sonal Estate of her first Husband by her Marriage 
she hath disposed of it to her Second Husband And he thereby 
became absolute Owner of the P.sonal Chattels in her posses- 
sion As to her other Estate she (being a married Woman) 
could not dispose thereof without her Husband having the 
Interest in the Estate and not only an Authority to dispose & 



BARRADALL'S REPORTS B5 

therefore that will descend to her Heir at Law if she had the 
Inheritance And if her Devisee (of Wilkinson's Lands) be out of 
Possession he must recover them by Ejectment. 

Edward Northey 
July 10th 1716 
then Att General 

Que: Whether S'r Edward Northey is not mistaken as to the 
P.sonal Estate Seing she had it as ExEx and never made any 
Declaration That she took it as Legatee. 

HUMPHRY HINCHMAN L.L.D. NOW THE BP. OF LONDON'S 

CHANCELLOR HIS OPINION 

I am of Opinion That Thomas Luton would have been 
intituled to all the Estate of W'm Wilkinson the property of 
w*ch had not been altered by the dece'd Esther in case he could 
prove himself the next of Kin to the dece'd William and Esther 
had dyed Intestate And likewise to a probate of the Will. 

All that Estate Esther had as Ex. Ex. of w*ch ye Property 
remained unaltered at her death She might dispose of by Will 
Notwithstanding her Coverture, And the Ex*tor appointed by 
her is legally intituled to a Probate of Such Will. 

I apprehend the Power of granting Probates and Adm'tions 
to be given the Gov'r of thesev'al Plantacons and a probate 
granted here would be of no force in those Parts. But it will 
be proper for the Ex' tor to apply again to that Court w*ch has 
Jurisdiction in those Parts and pray a Probate And in Case the 
Judge upon repeated Application [5] refuse to grant him such 
Probate he may appeal to his Majesty in Council and will in my 
Opinion find relief there 

Humphry Hinchman 
Drs. Commons March 8th 1717 

[Note by W. G.] (These Opinions are published in North Carol. Law Repos. 
23-25.) 

CASE STATED BETWEEN PHINEAS BOLT AND ISHAM RAN- 
DOLPH WITH S'R ROBERT RAYMOND'S OPINION THEREON 

A. a Merchant in London ships on board B. bound for Pensil- 
vania Goods to a considerable value and takes a Bill of Loading 
of C. the Master, to deliver them safe at the Port of Philadelphia 
the dangers of the Seas excepted to D. or his Assigns. 



B6 VIRGINIA COLONIAL DECISIONS 

The Ship arrived safe in the River Delaware and in going up, 
run aground about sixty Miles from the Town of Philadelphia. 
To save the Ship they were obliged to take out great part of her 
loading, and after she had layd Nine Days, got her o& and 
carryed her up the River within twenty Miles of Philadelphia. 

C. the Master thinking it dangerous to go further gave D. 
Notice thereof; Upon which D. requested him to send his Goods, 
w*ch were still on board, up to Philadelphia C. accordingly put 
them on board his long boat & sent his Chief Mate, Boatswain 
and Three other Men to take Care of 'em 

About ten Miles on this Side Philadelphia, they met with a 
sudden Storm of Wind and as they were sailing right before it, 
the Sea running very high, the long Boat pitched her head 
under Water, and immediately before they could haull down the 
Sail, She filled and sunk. The Chief Mate was drowned and a 
great part of the Goods lost. 

The Master rec'ed Freights for the Goods in London w*ch was 
about fifty Shillings, And the Value of the goods that were lost 
was about Three hundred pounds. 

Q. 1st. Whether the Ma*r or Owners are chargeable with any 
Damage that may happen to Goods rec'ed on Freight after they 
are out of the Ship. And whether the Ma'r's Contract is not dis- 
chargd by a delivery of the Goods at the Ship Side. 

The Ma'r is bound by his Bill of Loading to deliver the Goods 
took in at Freight at the Port mentioned in the Bill of Loading 
safe Danger of the Sea excepted, And therefore I am of Opinion 
the Master is not discharged by the delivery of the Goods at the 
Ship Side, if nothing more was in the Case. 

Que. 2d. If the Master was not obliged to send the Goods up. 
Whether his Sending the Goods by his own Boat and Men 
[6] by the Order of the Owner of the Goods, is not the same, 
as if he had delivered *em to any Waterman by his Ord*r 

I am of Opinion that the Ma'r is answerable for any Accident 
that might happen to the Goods by the Carelessness or 
Negligence of his own Boatmen, he being originally liable 
on the Bill of Loading & there being no P.ticular direc- 
tions to whom they should be delivered to be brought up 
if there had a delivery by the Master to such P. son would 
have discharged the Master. 

Que. 3d. If the Ma*r's Contract should not be discharged by a 
delivery at the Ship Side : Whether he is chargeable without a 



BARRADALL'S REPORTS B7 

Neglect of the Sailors with the loss of the Goods occasioned by 
a Storm? 

I am of opinion upon the whole Circumstances of this Case 
That since the Ma'r was ordered by D. to send the Goods and 
the Accid't hapened not by any Neglect of any P.son but by a 
Storm that the Ma'r will not be liable to answer for the Loss 
of them? 

Rob. Raymond 
Lincolns Inn July 16th 1716 

Afterwards Phineas Bolt brought his Action in the Kings 
bench ag't Isham Randolph and declared upon the Bill of 
Loading. And at a Tryal before the Lord Chief Justice Parker 
the Case appearing as it is above stated His Lords'p directed 
the Jury upon the General Isue to find for the Deft Randolph 
w*ch accordingly they did but the Pit. suffered a Nonsuit. . . 

Trinity Term 3d. G. R. 

Comon Serj't Dee being of Council for the Deft, and Serj't 
Cheshire for the Pit. 

[Note by W. G.] ( The foregoing opinion, without what is here added about 
an action and trial is published in North Carol. Law Repos. 25-27.) 

CASE STATED BETWEEN MR. MICAJAH PERRY & RICHARD 
PERRY & THE EX'TORS OP COLL'O WILL'M RANDOLPH 
WITH THE OPINION OF SR THOS. POWYS, S'R JOHN 
CHESHIRE. S'R ROB RAYMOND, S'R W'M THOMPSON KING'S 
SOLL'R GENERAL & MR. REEVES THEREON 

A. a Merchant beyond the Seas in Virginia, began to import 
into that Country Sundry Goods & Merchandizes from England 
about the year 1682 And employed B. a Merch't in London as 
his Agent and factor to transact his Affairs here, in buying 
Goods and disposing of Tob'co and other Comodities w*ch he 
remitted in considerable [7] Quantities every Year and allowed 
B. the customary Comissions & Advantages in buying and Sell- 
ing. 

About the Year 1687 A. consigned to B. a Quantity of Tob'co 
drew some Bills of Exchange and directed Goods to be sent him, 
to the Value of 800;^' or thereabouts. Expecting by a moderate 
Computacion, his Remittances that Year would have amounted 
at least to that if not more. But it hap'ned either from the 
Mismanagm't of B. or the sudden Fall of that Comodity, that 
on making up the Accompts B. made due to himself a Ballance 



B8 VIRGINIA COLONIAL DECISIONS 

of ^1000. ... A. continued a large trade after this and still 
comitted his AfEairs to B. he consigned him great P.cels of 
Tob'co and other things every Year for several Years, but on 
the Credit of his Consignm'ts drew some Bills of Exchange and 
gave fresh Orders for Goods, w*ch were gen'ally answered, So 
that there was an open nmning Account betw'n them. And A. 
by Losses, Hardships in Trade & other Misfortunes continued 
in Debt Sometimes more, Sometimes less, And at the time of his 
Death w*ch was in the Year I71I, owed B. ;t700. 

During all that Time B. charged Interest upon Interest for 
;f LOGO. As a Ballance settled by himself, without regard to the 
Subsequent Trade. The Ex'tors of A. discharged all that was 
really due on a Set 'led Ballance and more. And refuse to pay 
the Interest or any Part of it. The Testator never having 
promised but always refused to pay it. B. has comenced a 
Suite at Law for the Interest ag't the Ex'es of A. w'ch he has 
summed up to £2500, 

Que. Whether as this Case is, an Action can lye for Interest 
on an implyed Assumpsit in Law without a positive Promise? 

If upon an Accompt made up between Merchant and Mer- 
chant, or between a Merchant and his Factor, there be a Bal- 
lance coming to one of them, and a Subsequent Trade is con- 
tinued and an open dealing between them & running Acct's as 
before, I never understood That Such a Ballance would carry 
Interest, unless it was so agreed between the Parties: But how 
the Fact will come out in this Case upon the Evidence to the 
Jury I cannot tell. 

Que. 2. Granting that there was a Ballance due or a Stated 
liqmdated Account and no Subsequent Trade. Whether Inter- 
est can be recovered at Law without a Reservation or the 
Express Agreement of the Parties? 

If an Action be brought for a Sum certain, reduced & Set'led 
upon an* Accompt Stated and no Subsequent dealing is between 
the Parties, the Jury may and gen'ally they do give Interest 
under the Word Damages for such stated S\mi, Causa De ten- 
tionis &c. But there is no Colour for Interest upon Interest 
and damages being uncertain and in the Breast of a Jury they 
will be governed [8] by the Circumstances of the Case, w*ch will 
depend upon the Proof being Matter of Fact. 

Tho. Powys 
19 Nov'r 1717 



BARRADALL'S REPORTS B9 

Serj't Cheshire to the 1st Que. 

In Case A and B have continued a constant Intercourse and 
the Ballance due to A has been by the Remittances of each 
succeeding Year, been altogether or in a great Part cleared, 
That will be such a Current Way of Dealing as will keep the 
Account open and make Demand of Interest unreasonable for 
each Years ballance, Especially since B. had Comission and 
other good Advantages by A/s Implo)mient of him unless A. 
had in some subsequent Account wherein B. had included 
Interest submitted to that Ballance w*ch (the Case says) he 
always refused to do. 

To the 2d Que 

Where a Debt has arisen for Money lent or on Acc't stated 
and that Debt has been often demanded and a long time due & 
unpaid A Jury will Sometimes allow the Pit. some Interest on 
the Damages. But where the Debt arises upon mutual dealings 
and there is no Account stated but it appears upon the closing 
of a current Account, that one is Debt'r to the other I think it is 
not usual nor reasonable to allow Interest because till the De- 
mand was thus adjusted it remained in uncertainty 

Inner Temple Jo: Chesshyre 

2d Nov'r 1717. -^ 

S*r Robert Raymond to y'e 1st Que. 

I am of Opinion in an Action at Law (if y*e Principal Sum is 
admitted to be rece'd) B. can't recover the Interest on an 
implyed Promise. 

To the 2 Que 

I don't know that Interest at Law has been allow'd on a 
stated Account, but 'tis every day allow'd in such a Case in 
Chancery. 

Rob. Raymond 
Lincolns Inn 9 ber 6. 1717 

[9] S'r W'm Thompson to the 1st Que. 

I conceive no Action at Law will lye for this Interest nor will 
a Court of Equity allow Interest as this Case is stated, It seem- 
ing to be a continued running Acct. & though the Ballance 
might be on the side of B. one Year more than other Yet unless 
that was a Stated Ballance &'the Account as to that Sum 



BIO VIRGINIA COLONIAL DECISIONS 

settled & agreed to by A. the Continuance of Remittances on 
both Sides shall make the whole an open account for any part 
of which no Interest shall be allowed. 
To the 2d Que. 

If an Account be stated it does not of itself in Point of Law 
carry Interest but a Jury will have regard sometimes to the 
long with-holding of Money & give Interest in Damages though 
if excessive a Court of Equity may moderate Since the Party 
might have brought his Action at Law as soon as he pleased for 
the Principal after the Account stated, though the Circum- 
stances of a Case (as the Continuance of Trade between 'em) 
may account for not being so strict and it may be reasonable 
that the Party should have some Interest All w*ch a Court of 
Equity will consider, but this only in the Case of an Account 
settled and ballanced and no Trade continuing after w'ch does 
not seem to be this Case, but if it should prove so, then I think 
a Court of Equity as I say will have some regard to Interest 
and the subseq't Remittances shall be set of one against another. 

W'm Thomson 

2d of NovV 1717 

[Note by W. G.] (See post 30) 

Mr. Reeve's to the 1st Que 

I conceive upon this Case as it is Stated, no Interest is due, 
there being a running Trade between them & no Account 
Stated, but if there were an express Promise it would be other- 
wise. 

To the 2d. Que. 

If the Account were stated in Writing, I do not see why a 

Jury might not consider the Interest in Damages when the Party 

hath been long out of his Money. 

Tho Reeves 

Nov'r 4th 1717 

[10] 

THE OPINION OF MR. DUNCAN DEE COMON SERGT OP 
LONDON ON THE FOLLOWING CASE 

Thomas Pannil & John Prosser Surveyed 2200 Acres of 
Land upon Matapony Swamp and at the same time made a 
Division by a Line of marked Trees & a Plat w'ch Mr. Buckner 
says was made by the Surveyors that first surveyed the Land 



BARRADALUS REPORTS Bll 

for Pannil and Prosser, they never took out any Patent for this 
2200 Acres of Land but some time after makes another survey 
beginning at the same Place and takes in 5200 Acres of Land 
and some time after John Prosser made a Will & thereby devises 
in the Words following 

I give to my Two Sons Jointly Roger Prosser and Anthony 
Prosser a Tract of Land lying on Matapony Branches containing 
1100 Acres to. them and their Heirs forever, the Said Land to be 
equally divided between them when the Eldest of them comes of 
Age. And in Case they dye without Issue then to fall to the 
surviving Brethren but not that this shall be any Barr to any 
of them to hinder them from Selling their proper Inheritance. 

Before the Two Brothers made a Division y'e Youngest Son 
of the Two dyed and left a Son w'ch is now come to Age and 
hath sold his Right to T. and the Eldest of the Two sold his 
Right to B. and soon after he dyed 

Que. Whether that Division between Pannill & Prosser with- 
out any Record or Evidence of such Division nor any other 
Way to prove it but by that Plat w*ch B produces and a line 
of marked Trees in that Part of y *e Patent of 5200 Acres that 
lye in the same Place be sufficient to give Old Prosser a Title 
to Will that Land away — And if Old Prosser had a good Right 
to will it — Whether the Heir of the Youngest Son (notwith- 
standing there was never any Division between the two Brothers) 
hath not good Right to an equal Part with B. 

Thomas Pannil outlived John Prosser and made his Will 
wherein he gives to Catherine his Wife & his 3 Children W*m, 
Mary & Isabell and to the Child his Wife was then ensient with 
All his Land &c. to them and their Heirs forever to be equally 
divided. And afterw'd he says I give to Anthony Prosser A 
Tract of Land lying on Matapony Swamp w*ch Land was taken 
up between his Father & myself in Copartnership the said Land 
to be divided between him and my Children. And Anthony 
Prosser is dead and Isabell Pannil also the first leaving a Son, 
the last a Daughter. 

Que. Whether that Son and Daughter shall not inherit the 
Parts of their Father & Mother And what Part Prosser has right to? 

Upon Perusal of the Patent to Mr. Pannil & Mr. Prosser and 
of their respective Wills I am of Opinion That Pannil and 
Prosser were [11] Jointenants of the 5200 Acres And the marking 



B12 VIRGINIA COLONIAL DECISIONS 

out the 2200 Acres before any Grant of the Same signifyed 
nothing but an Intencon. at that Time to make a Division but 
could have no Effect they having no Estate to divide till the 
Patent passed for the whole 5200 Acres together And after the 
Patent there is nothing done that shews any Intention to make 
a Division or destroy the Jointenancy and then the whole came 
to Pannil and his Heirs by Survivorship & nothing passed by 
Prosser's Will. So that to find out the Title We must look into 
Pannil's Will. 

It is not Stated in the Case Whether the Testator Pannil had 
any other Lands than those he had Jointly with Prosser, But 
yet in my Opinion that Matter will make an Alteration in the 
Case; for all Parts of a Will must take Effect if possible. 

Now if he had other Lands The first Devise in the Will may 
have Effect by passing these other Lands to his Wife & Children 
and their Heirs as Ten'ts in Com'on. Each of them and their 
Heirs being intituled to a fifth part of such other Lands And 
then all the Lands at Matapony will pass to Prosser and the 
Children as Ten'ts in Common in Fee Simple. That is to say To 
each of them & their Heirs a fifth part. But if Pannil had no 
other Lands but those at Matapony I am of Opinion that both 
Clauses of the Will must be construed as if Jo3med And then 
the Wife — Children and Anthony Prosser will All be Ten'ts in 
Com' on in Fee Simple and Each of them and their Heirs intitled 
to one Sixth Part. 

So that if there were other Lands, Isabella is entitled to one 
fifth of these other Lands by the first Devise and to one fifth 
of the Lands at Metapony by the latter Devise & Prosser to 
one fifth of Metapony. But if Pannil had no other Lands but 
those at Metapony Then I am of Opinion that they are only 
intituled Each to a Sixth Part of those Lands. 

The Death of Anthony Prosser before Division makes no 
diflference It being by the Will a plain Tenancy in Com'on & his 
Share did not survive but descended to his Heir The Difficulty 
in construing the Will lying in the determining what land or 
propocon land passeth by the Will to Each P'son, not in deter- 
mining w't Estate Each Devisee hath in the Land w'ch passeth 
to them by the Will. Duncan Dee 

Jan. 14th 1719 

[Note by W. G.] (The foregoing opinion is published in North Carolina Repos. 
27-30.) 



It 
ft 



BARRADALL^S REPORTS B13 

[12] 

CASE OF MR GREEN OF GLOUCESTER W'TH SEVERAL 

OPINIONS THEREON 

King Charles the Second by Letters Patent bearing date 
y'e 10th day of Feb'ry 1662 Granted 1100 Acres of Land 
Scituate in the County of GloucV in Virginia to Ralph 
Green and his Heirs forever. This Ralph Green had 
two Sons Ralph & Robert; Ralph the Eldest had one 
Son Thomas; Robert the Second had one Son, Ralph, 
who dyed in the life Time of his Father and two Daughters 
Eliz'a and Mary. 

Ralph Green the Patentee in his life time made a Deed in 
these Words ** Bee it known unto all Men by these Presents, 
That I Ralph Green Gent, of the County of Glouc'r with Con- 
sent of my Wife Elizabeth Do hereby freely give dispose and 
** alienate from me, my Heirs, Ex'tors adm*ors or Assigns unto 
** Robert Green my Son the Neck of Land whereon he now 
" liveth commonly called by the Name of my New Quarter con- 
" sisting of about 1150 Acres to him the said Robert Green his 
" Heirs Ex* tors Adm'ors or Assigns And I do further Warr*t 
** and affirm this my Deed of Gift to be of as much Force and 
** authentick as the Law can make it or as any Deed or Deeds 
" of Gift are usually made, it being always provided that the 
" said Robert shall not without Consent of his aforesaid Father 
** solely nor to his own proper Use enjoy Possession of the said 
" Land till after his Father's Death In Witness whereof I have 
'* hereunto set my Hand & Seal this 8th day of Feb*ry 1671 
** in Presence of us Ralph Green Test James Dunbar Leonard 
** Chamberla5me. 

In the Year 1689 after the Death of the said Ralph Green this 
Deed was proved by one of the Witnesses in a Court of Record 
and according to the Custom in that Country. 

But Ralph Green the Patentee after the Date of this Deed 
made his last Will and Testament in Writing w*ch bears Date 
the 5th day of March in the Year 1681 And thereby did devise 
the same Lands in these Words, " Item I give to my Son Robert 
Green, my Land, he now lives on during his Life and after his 
Mortality, then to his Son Ralph Green and his Heirs forever, 
And in Case of their Mortality Then to my Son, Ralph Green 
and his Heirs for Ever. 

Robert Green the 2d Son as seems by this Will was 



B14 VIRGINIA COLONIAL DECISIONS 

in Pos'sion of the Land in his Father's Life time, and died 
possessed. After whose Death, his Dau*rs & Coheirs Mary & 
Eliz'a entered. 

Ralph Green the Eldest Son in the Year 1693 brought his 
Action of Ejectment against the said Mary and Eliz'a who 
pleaded in Barr "That Ralph Green their Grandfather long 
before the Time when &c. was thereof lawfully Seized in his 
Demesne as of Fee and being so Seized he the said Ralph for 
the natural Affection w'ch he bore to his Son Robert & to 
advance him [ 13] in a Marriage then intended & afterwards 
Solemnized betwixt the said Robert & one Mary Pricket did 
freely alienate and give the Land wherein &c. to his said Son 
Robert & his Heirs forever by Deed under his Hand & Seal 
dated the 8th of Feb'ry 167| — That the said Robert 
entred and was thereof Seized & dyed so seized leaving the 
said Mary and Elizabeth his Dau'rs & Coheirs — After whose 
Death the said Mary & Eliz'a entred peaceably &c. Without 
that &c. — The Pit. replyed "That the said Ralph 
Green was a Layman and not lettered and that the 
Deed was never read to him, but was declared to him 
as a Deed to take Effect only in Case he should dye 
without making any Will, and so the said Deed or Writing 
was not the Deed of the said Ralph — And Thereupon 
Issue was joyned and the Jury found for the Defts. That 
it was the Deed of the said Ralph Green. 
About the Time of this Tryal, Sev'al Depositions were taken 
in P'petuam ret memoriam, relating to this Deed, and it was 
proved by one Witness Mrs. Vicaris That Ralph Green came 
to the House of Mrs. Vicaris Mother to the said Mary Pricket 
and called for the said Mary and said to her when are my Son 
and You to be married, I have given him a firm Deed of Gift for 
the Land he lives on — .Then Mrs. Vicaris asked him If he had 
acknowledged the Deed to him in Court. He answered No but 
that he would do it at any time; And she asked him this 
because Mr. Pritchet in his life time had refused his 
Consent to the Match unless Mr. Green would Settle some 
Land upon his Son — And after the Marriage Mr. Green 
took the said Mary (she then being upon this Land) and 
said Here is a House & Land for thee, thou shalt never be 
turned off, for I have given this Seat to my Son Robert & 
his Heirs for Ever. 



BARRADALL'S REPORTS B15 

Leonard Chamberlasme one of the Witnesses to the Deed 
Swore That he was by when there was some discourse between 
Mr. Green and his Wife concerning this Land and She desired 
him to make a Deed of Gift to his Son Robert of it w*ch he then 
refused being in Drink, but the next Morning Mrs. Green told 
him She had brought the Old Man (her husband) into a good 
humour, And sometime after Mr. Dunbar wrote this Deed and 
Mr. Green after it was read, Signed, Sealed & delivered it as his 
Act and Deed and gave it to his Wife to Keep for his Son Robert. 

But another P'son swore That Mr. Green Some time in the 
Year 1685 offered to Sell him Part of his Land Upon which the 
Dep*t told him he thought he had no Right to the Land since 
he had given it by Deed to his son Robert. He made Answer, 
That Deed signifyed Nothing, for he had never acknowledged it 
in Court And besides it was such a Deed that could not take 
Effect unless he dyed without a Will, but he had power to give 
it to whom [ 14] he pleased by Will — The Dep't replyed there 
was no such Condition in the Deed for he had seen it, and it was 
an absolute Deed of Gift — Mr. Green then bid this Dep't go to 
his Son Robert and fetch the Deed which he did and when it 
was read he said he never intended any such Deed and seemed 
in a great Passion with his Son, Upon w'ch his Son told him 
he knew nothing of it, the thing being transacted without his 
knowledge 

Thomas Green the Son of Ralph the Eldest Son brought 
Suit about 14 Years agoe 

Q. 1. Whether this Deed he sufficient to pass those Lands 
& how it shall operate. Or Whether by the Proviso, Robert's 
Estate doth not comence in futuro And if so Whether in that 
respect the Deed be void? 

I conceive that this Deed may well operate as a Cov't to stand 
Seized to the Use of the Father for life, and after his decease 
to the Use of Robert his Son and his Heirs. And since it can 
have no eflEectual Operation any other Way than by way of Use, 
The Judges (where there is a good Consideration as here of a 
Younger Son) have strained to give the Deed an useful Opera- 
tion and not to make void as a Comon Law Conveyance for 
want of a requisite Execution &c. 

Q. 2. What Estate Robert had by the Will of his Father? 

I think the Use (as is above observed) may be to the Father 



B16 VIRGINIA COLONIAL DECISIONS 

for Life, After to the Use of the Son in Fee or to the Son in 
Fee, cloathed with a Trust for the Father for Life, in point of 
Benefit and Enjo5nn*t in case he required it 

Q. 3 Whether Thomas Green the Grandson and Heir of the 
first Ralph be barred by the long Pos'sion of those who hold the 
Land, And if not. What Ac'con he hath to recover? 

His Title is no better than his Fathers was and by the Young'r 
Son's death in Pos'sion and the descent cast and the Con- 
tinuance of Pos'sion ever Since in that right The Grandson is 
barred to bring any possessory Action, Ejectment or other & 
even any reall one (as I apprehend) 

Jo: Chesshyre 
2d FebV 172>^ 

Mr. Reeve to the 1st Que. 

I am of Opinion That the Deed will be sufficient to pass the 
lands from Ralph Green the Patentee to his Son Robert in Fee 
And that it will operate by way of Covenant to stand Seized. 
The Proviso that Robert should not have the Pos'sion to his own 
use during his Father's life without his Consent is a very Good 
one [15] but will not in my Opinion vitiate the Deed so as to 
make it void And it appears by the State of this Case that he 
had his Father's Consent & enjoyed the Estate during his 
Father's life. 

To the 2d Que. 

If Robert's Estate were to depend upon Construction of his 
Father's Will I conceive he would take only an Estate for life 
but the Remainder limited to his Son Ralph I take by Construc- 
tion of Law to be but an Estate Tail, the Estate being devised 
over for want of his Heirs to his Uncle Ralph who would be his 
Heir if he had no Children of his own. 

To the 3d Que. 

I think Thomas hath no Title to this Estate, but if he had, in 
Case no Entry hath been made within twenty Years he will be 
barred of his Ejectment by the Statute of Limitations, And I 
know of no other Action he could have unless it were a Writ of 
Right. 

Tho. Reeve 
Feb'ry 1727 

[Note by W. G.] (These opinions are published in North Carol. Law Repos. 
309-314.) 



BARRADALL'S REPORTS B17 

MR. PIGOT OF THE MIDDLE TEMPLE HIS OPINION 

23 November Bence Dowsing & Martha his Wife having 
1693 Surrend'red All their Messuages & Lands 

held of three Mannors in the County of 
Suffolk to the Use of Samuel Collet & His Heirs under Condition 
if they paid Collet 862 lb. 10. at the several daies of payment 
therein mentioned then the same to be void otherwise in full 
force, and the money not being paid Collet was admitted to 
him & his Heirs. 

23 August At a Court then held Collet surrendered the 
1694 premise into the hands of the Lord to the Use 

of himself & Hannah his Wife & their Heirs & 
Assigns for ever. 
13 January Collet & his Wife then surrenderd the Premises 
1703 to Henry Hammond & Catherine his Wife 

for their lives & the life of the longest liver 
of them Remainder to the Issue Male of Henry & Catherine & 
for want of Issue Male Remainder to their Issue Female Re- 
mainder to the right Heirs of Henry forever. Hammond & his 
Wife have Issue a Son. 

30 Tber 1714 Hammond & his Wife Surrenderd the premises 

to Anne Rivet for securing tW Paym't of 315;^ 
at the times therein mentioned. 

April 5th 1715 A Recovery was suflEered of the said Copy hold 

premises by Hammond & his Wife to the Use 
[16] of Hammond & his Wif e & their Heirs. 
18 May 1716 Hammond & his Wife were admited accordingly. 
1 July 1716 Hammond & his Wife surrendered the premises to 

Thos. Possford & his Heirs for securing the paym't 
of 630;^ at the days & times therein mentioned. 

Dowsing the Heir at Law of the first Mortgagor comes & 
claims the Equity of Redemption & says his Father never 
Released his Equity of Redemption in his Lifetime which is 
believed to be true & Possford the last Mortgagee is willing to 
take in Dowsings Title to the Equity of Redemption in order 
to secure himself. 

Q. If notwithstanding the length of Time since the first 
Mortgage, Dowsing has not a right to redeem the same upon the 
paym. of Principal & Interest Exclusive of Mrs. Rivets Mort- 
gage? 



B18 VIRGINIA COLONIAL DECISIONS 

1. There is not any fix*d time in Equity that forecloses a 
Mortgagor & the statutes of Limitations do not extend to Mort- 
gages because a Mortgage is in Natural reason only a Pledge or 
Security for the Money and the Conveyance does not convey 
any absolute right of property but subject to a Condition of 
Redemption. The Court of Chancery has often threatened 
after twenty years possession not to admit a Redemption, but 
in the Case of Pye & Gorges they admitted a Redemption after 
60 years So that it is the equitable Circumstance that rules every 
Case in Equity: As if Dowsing was an Infant when the Title 
fell to him or the like. 

Q. Whether it would be adviseable for Possford to [sic] of 
Mrs. Rivet's Mortgage and if he should whether he can 
any way or how get possession of the premises till Hammond 
is paid of or what he must do to secure himself Hammond 
being insolvent? 

I am of Opinion that Rivet's Mortgage is only good during 
the Life of Hammond for by the Surrender 13th of January 1703 
the Lands were surrender'd to Hammond & his Wife for their 
lives remainder to their first Son in Tail, Now tho' there were no 
Trustees to preserve Contingent Remainders Yet there was a 
Freehold in the Lord that preserves the Estate for the first Son 
of Hammond & his Wife & when Hammond & his Wife 
die their Son will have the Estate: therefore as the Case 
is circumstanced I am of the Opinion the safest way for 
Posford is to come to an Agreement with Dowsing & then 
by consent let Dowsing bring a Bill against Hammond his 
Wife & Children & Rivet & Posford. 

[17] But there is no getting Possession because they all claim 
under Collet who had the legal Estate well vested in him & neither 
Dowsing or any claiming under him have any Relief but in 
Equity. Rivet & Posford both claim under Hammond's Title, 
and Rivet's Security being prior She will prevail against Posford 
so that there is no way to make Posford secure but a Decree 
since he is subject to the Demand of Hammond's Son, Rivet & 
Dowsing. 

Nath'l Pigot 
Middle Temple 5 March 172j 

Doctor Paul's opinion on a Case sent from Virginia in 1724. [Different hand- 
writing and ink from the general MS.] 

1st. A. has unadvisedly marry 'd B. his late Wife's Sister tho* 



BARRADALUS REPORTS B19 

he has Children by the first and is threatened with Prosecution 
in the Eclesiastical Court. He wishes to be informed how far, & 
by whom, most properly, he may be proceeded against & tem- 
porally affected thereby. Or, whether a Prohibition will not 
lye to remove it to common Law? 

The Marriage solemnized between A. & his Wife's Sister may 
upon due Proof be annul'd by the Eclesiastical Authority, and 
the Persons separated by the definitive Sentence & Judgment of 
thef A. Bishop or proper Ordinary of Place where the Parties live. 
A Prosecution may be commenced by any Person, that can give 
Security to pay Costs, in Case he fails of making a legal Proof. 
A Prohibition will not be granted to remove it to common Law. 

2d. Whether by the present Laws of England, corroborated 
by noted Precedents or judged Cases 1 of which it is desired the 
last may be instanced 1 such Marriage can be disannul'd or the 
Parties separated, & how far their Issue may be affected thereby. 
And whether there be any probable Method of Defence, or Way 
to prevent Molestation? 

By the present Laws of Great Britain a Man can't marry with 
his Wife's Sister for the same is contrary to the Statute of y'e 
24, H. y'e 8th Chap: 22. By that, it is particularly enacted, 
that none shall marry within y'e. Degrees prohibited, of 
which Wife's Sister is one menc'oned in the Statute. And all 
Separations from such Marriages shall be good & valid; And 
after such Sentence as the Law directs, the Children bom in 
such Marriage will be illegitimate. I know no Defence that 
can be made against a legal Evidence of the Nearness of Kin & 
a Marriage solemnized thereupon. 

Mr. Edisbury was separated in the A. Bp. of Cants Court from 
his Wife, she being Sister to his Wife, & all his Children by 

her we [sic] pronounced illegitimate. 

3dly. Whether if no Prosecution should ensue, during the 
Life of the Party's, ye Children of the first Wife may not after 
the Father's Death, Barr any Claim of those by the Second to 
their Share in [18] their Father's Estate by alledging the ille- 
gality of the second Marriage. And whether the Widow will 
be quietly allowed her Dower or Widow's Right? 

If there shall be no Prosecution & Conviction during the Life 
of the two Parties mentioned in this Case, then y'e Children by 
the second Wife will obtain all legal Benefits & the Wife will 
have her Dower. For Marriages, within the Degrees afore- 



B20 VIRGINIA COLONIAL DECISIONS 

menc'oned are in Law deem'd voidable only, not actually void. 
And Proceedings, after the Death of one of the two partie's 
married as aforesaid can't be commenc'd in Order to annul 
the Marriage, and make the Children illegitimate. 

J.Paul 
Drs. Corns Sep'r 4 1724 

[Note by W. G.] (This opinion is published in North CaroL Law Repos. 424-6.) 

DR. STRAHAXS OPIMON ON A CASE SENT FROM CAROLINA 

IN 1724 

1st. A. has an Inclination to propose Marriage to B. his late 
Wife's Sister, by whom he has Children but finding her within 
y'e prohibited Degrees of Arch-Bp. Parker's Tables, he wants 
to be informed, how far Disobedience to them can temporally 
affect him; And particularly, Whether by the present Laws of 
England corroborated by noted Precedents & judg'd Cases, the 
Marriage when consummated, can be disannul'd & the Party's 
separated and how far their Issue may bfe affected thereby? 

I am of Opinion that such Marriage may be disannul'd after 
Consummation & the Partie's separated; And the said Marriage 
being null and void from the Beginning, it is a necessary Conse- 
quence that the Issue thereof, must be look'd upon as Illegit- 
imate. 

2dly. What Prosecutions at Law he may be in Danger of, and 
the utmost Penalty's he may suffer. 

He is liable to be prosecuted in y'e Spiritual Court for trans- 
gressing the Laws and Cannons of the Church, by contracting an 
incestuous and unlawful Marriage, & may be enjoyn'd to do 
publick Penance for y'e Same. 

3dly. Whether after he has once suffer'd he may for the 
future be molested by Law, upon Account of such Marriage? 

If he continues to cohabit with the Woman he will be still 
liable to farther Prosecution ; And if he does not desist from such 
Cohabitation, after due Monition from his Ordinary, he will 
incur y'e Censure of Excomunication, with all it's Effects both 
spiritual & temporal. 

Will. Strahan 
Drs. Coms Aug'st 18th 1724 

[Note by W. G.] (This opinion is published in North Carol. Law Repos. 426-9.) 



BARRADALL'S REPORTS B21 

[19] CASE 

MR. MEAD'S OPINION ON A CASE SENT FROM VIRGINIA I N 

1722 

James Williamson Merchant being resident in Virignia, by 
Deeds of Lease and Release, dated respectively the 19th 
and 20th Days of November 1655, mortgaged an Estate which 
he then had in England, in Fee to Thomas Cox for 3201b Sterling, 
but whether the Equity of Redemption has heen released or 
foreclosed by a Decree is not known. Mr. W'm Ball Grandson & 
Heir of the Mortgagor apprehends that the Principal and Inter- 
est due upon the Mortgage is fully or very near paid & satisfied 
by the Perception [sic] of Profits & would therefore redeem the 
Mortgaged Premises. 

1st Q*r. Supposing the Equity of Redemption not to be released 
or foreclosed, will a Court of Equity decree a Redemption after 
such a Length of Time? 

I apprehend that after such a length of Time a Court of 
Equity will not decree a Redemption, unless the Heir at Law 
of the Mortgager can shew, that by Reason of Infancy's in the 
Heir at Law, a Redemption hath been neglected: and I take it 
that y'e Court will even in such Case, not do it, unless it can be 
made appear that at the Death of the Mortgager, the Heir was 
an Infant or under some Disability by being abroad, or Insanity 
or some Disability of that Nature: and even this will depend 
upon the Time w'ch the Mortgager lived after the Mortgage; 
for if he lived above twenty Years after the Mortgage ent'red, I 
apprehend that a Court of Equity would not now decree a Re- 
demption. 

2d Q'r. If the length of Time should not be thought sufficient 
of itself to extinguish the Equity of Redemption, will not both 
the length of Time & a Decree of Foreclosure, (in Case such 
Decree has been obtained) absolutely preclude Mr. Ball from 
any Right to redeem or will Mr. Ball be entitled to a Redemp- 
tion, notwithstanding the Length of Time and a Decree of Fore- 
closure together? 

If any Decree of Foreclosure hath been obtained Mr. Ball as 
Heir at Law to y'e Morgager will be thereby absolutely pre- 
cluded from any Right of Redemption. 

Sam: Mead 
26th Dec'r 1722 

[Note by W. G.] (This opinion is published in North Car. Law Repos. 423-4.) 



B22 VIRGINIA COLONIAL DECISIONS 

[20] A Copy of part of a Letter wrote by Col'o. Randolph on 
Receipt of our Letter and Account Current dated the 16th 
December 1687 where the Ball, due to us was 973-13-5 And 
before we had charged him with any Interest but at the foot 
of this Accoimt was wrote Interest till repaid. And from that 
Day we charged him Interest & for 10 years or more he never 
took any Notice of it. 

Virginia, April 14th 1688. 

I rec'd your Acc'ts of a very bad Market last year, and find 
the Ball, to be much higher than I expected but however must 
submit to Providence I am also sensible of the jf 100 drawn P. 
Cap't. Wynn for my Barbados Goods which I find not brought 
to Account so that the Ball, must be so much more upon all 
which Considerations and that y'e Acc't might not run higher 
(the Interest thereof being considerable) I have inclosed an 
Invoice of Goods for next Year as small as I can make it if I 
intend to do any Thing in Trade. 

Q'r. Whether the Ex'rs or Adm'rs of Col'o. Randolph shall not 
be obliged to pay the Interest charged in the Account annually 
& sent him to y*e Time he dy'd so far as his Estate will reach? 

Upon a running Account no Interest will be allowed but as 
this Ball, was considerable as notice was taken of that & Inter- 
est charged by the Creditor and the Party himself the Debtor 
does not object to it but mentions it in his Letter as a Matter 
which he submits to. And it being continued to be charged in 
all the Acc'ts to his Death & no Objection made by him to it I 
think a Court of Equity will make his Effects in the Hands of an 
Ex'r or Adm. liable to it. 

W*m Thomson 
16th Feb'ry 1717 

[Note by W. G.] (See ante 6-9 ei infra.) 

At the Council Chamber Whitehall the 20th day of July 1726. 

[Notes by W. G.] (1725? See post 22.) (See ante 6-9 et supra.) 

Present 
Their Excellencys the Lords Justices 

Upon reading this Day at the Board a Report from the Right 
Honourable the Lords of the Comittee for hearing, Appeals 
from the Plantations Dated the 8th of this Instant in the Words 
following (viz) 



BARRADALL'S REPORTS B23 

"His Majesty having been pleased by his Order in Council of 
the 12th of May 1724 to referr unto his Comittee the Peticon 
of Appeal of Sarah Perry Widow & Extrix of Richard Perry 
Merchant Deced & of s'd Sarah Perry Micajah Perry & Philip 
Perry Merchants of London Ex'rs of Micajah Perry Merchant 
Deced, setting forth intal^ that the said Micajah & Richard 
Perry Deced, had very considerable Dealings with CoVo Wm. 
Randolph of Virginia Deced, and that several [21] Accounts 
of such Dealings had been transmitted by the said Micajah & 
Richard Perry's to the said Col'o William Randolph deced 
on which considerable Ballances were due to the said Perry's; 
Toward Discharge of which Ballances the said Col'o William 
Randolph in his Life Time & Mary Randolph Widow William 

" & Thomas Randolph the s'd Col o Randolph's Ex'tors after 
his Decease made several Consignments. But notwithstanding 
such Consignm'ts there was a Ball, due in 1717 to the said 

"Micajah & Richard Perry from Col'o Randolph's Estate of 
24651b Is 8d which said Col'o Randolph's Ex'tors refusing to 
pay the Petitioners brought their Act'n upon the Case in Vir- 
ginia as Ex'tors of the said Micajah & Richard Perry against 
the said Mary, William & Thomas Randolph Ex'tors of the 
said Col'o William Randolph for recovering of the said 24651b 
Is 8d which Account coming on to be try'd before the General 

"Court of that Colony on the 24th of October 1723 Judgm't was 
given therein against the Petitioners from which Judgm't the 
Pet'rs appealed. 

"The Lords of the Comittee pursuant to his Majesty's said 
Order did on the 25th of Nov'r last, take the s'd Appeal into 
Cons & upon hearing the Parties therein concem'd thought 
proper to refer the Accounts in Qucon to the Exaicon of four 
Merchants resident in London who having made their Reports 
thereupon the Lords of y'e Comittee this Day took the whole 
Matter into Consideration & having heard all the Parties con- 
cem'd in the said Appeal by their Council learned in the Law 
and finding that the said Judgment was erroneous do agree 
humbly to offer as their Opinion to your Excellencys that the 
said Judgm't given in the General Court of Virginia on the 
24th of October 1723 should be reversed and Judgment entered 
up for the Appellant in the sum of 24601b Damages,and that the 

"said Sum should be recovered out of the Assetts of the said 

' Obscure, but supposed to be abbreviation for inter alia. W. W. S. 



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B24 VIRGINIA COLONIAL DECISIONS 

"Coro W'm Randolph Deced and 101b Sterling Costs ont of the 
"said Assetts, if the Respondents have Goods of the Testator 

to that Value, if they have not the Costs to be recovered out 

of the proper Goods of the Respondents. 
Their Excellencys the Lords Justices in Council taking the 
said Report into Consideration, are pleased to approve thereof 
and pursuant thereunto to order as it is hereby ordered. That 
the Judgm't given in the General Court of Virginia on the 24th 
of October [22] 1723 be reversed and that Judgment be entered 
up for the Appellant in the Sum of 2460 lb Dages & that y'e s*d 
Sum be recovered out of the Assetts of y'e s'd Col'o William Ran- 
dolph Deced & also 10 lb Sterling Costs out of the Assetts if the 
Respondents have goods of the Testor to that Value & if they 
have not that then the Costs be recovered out of the proper 
Goods of y*e Respond'ts. Whereof the Governor, Lieutenant 
Governor or Commander in Chief of his Majesty's Colony of 
Virginia for the Time being and all others whom it may concern 
are to take Notice and govern themselves accordingly. 

Temple Stanyan 

Qu. Upon this Order what Method is most proper for the 
Perrys now to take in Ord'r to recover the Sum adjudged them 
out of Col'o Randolph's Assetts in Virginia in y'e Hands of his 
Ex'rs there. 

I think it is adviseable that a Bill should be brought in the 
Name of Extors of Mr. Perry to discover the Assetts of Col'o 
Randolph and how they have been applied and to have the 
2460 lb paid out of them And if by the Laws of Virginia real 
Estates are subject to the Payment of Debts by simple Contract 
it is proper that such Bill be brought against the Heir at Law 
and Devisee of the real Estate as well as against the Executors 
of Col'o Randolph and all others who have in their Custody any 
Part of the Assetts of Col'o Randolph. 

C: Wearg 
31st July 1725 

[NotebyW. G.] [1726? See ante 20.] 

1. By an Act past in the 9th year of his present Majesty 
intituled an Act for enabling his Majesty to put y'e Custom of 
Great Britain under the Management of one or more Comissioners 
and for ascertaining y'e Duty's on Tobacco &c. it is inter al 
Enacted that after y'e 1st June 1724 no Tabacco shall be im- 



BARRADALL'S REPORTS B25 

ported stript from the Stalk or Stem But such Tobacco shall be 
forfeited &c. put [sic] the Act. 

Q'r. If by this Act or any other the Importation of Cut 
Tobacco which is cut and made ready for smoaking in Virginia 
or manufacturing thereof into Snuff & such cut Tobacco or Snuff 
sent and imported in Great Britain can or ought to be for- 
feited. . . 

I am of Opinion that by the above mentioned Act of the 9th 
Year of his Majesty's Reign the Importation of Tobacco, cut & 
made ready for smoaking or for manufacturing into Snuff into 
England is prohibited, and if imported is liable to be seized. 
But I apprehend [23] that Snuff, tho' made of Tobacco, yet 
being a Commodity of another Species is not by Virtue of that 
or any other Law prohibited. 

P : Yorke 
Dec'r 31st 1725 

By an Act of Assembly in Virginia a Duty or Impost of 2/s 
for every Hogshead or other Cask of Tobacco ship'd on Board 
any Vessel for Great Britain is chargeable upon y*e Proprietor 
of such Hogshead or Cask of Tobacco. 

Qr. Whether Snuff made in Virginia being subject to a par- 
ticular Duty by the Act of Parliament in Great Britain & 
thereby distinguished as a different Species from Tobacco can 
or ought to be subject to the Impost of 2/s pr Head or Barrel in 
Virginia the same as Tobacco or ought not to be exempted from 
such Duty. 

The Construction of this Act of Assembly of Virginia seems to 
be more doubtful than that of the English Act of Parliament 
above-mentioned, because there is not distinct Duty laid upon 
Snuff in Virginia as there is in Great Britain. But if since the 
making of that Act of Assembly, the Duty has never been levied 
upon Snuff, I apprehend that it ought to be taken not to be 
within the Act, provided the Snuff be compleatly manufactured 
and perfected, and not only Tobacco prepared to be manu- 
factur'd into Snuff. 

P. Yorke 
Jan : 13th 1725 



B26 VIRGINIA COLONIAL DECISIONS 

SIR ROBT. RAYMONDS OPINION IN A CASE SENT FROM 

VIRGINIA IN 1722 

CASE INT^ ILALLX3 WS I £j£(^^£ j^^ UPON SPECIAL VERDICT 

John Hallows late of Rachdale in the County Palatine of 
Lancaster, was seized of 2400 Acres of Land in Virginia & died 
so seized, leaving Issue, Restitute his Daughter & Heir. Resti- 
tute Hallows entered and intermarried with one Whiston & by 
him had Issue Restitute her Daughter and Heir and died seized. 
Restitute Whiston entered and intermarried with one Thomas 
Steel and by him, had Issue Thomas Steel her eldest Son & Heir; 
And afterwards intermarried with one Manly, and had issue two 
sons by him John and William Manly And being a Widow 
at her Death made her last Will & Testament in W^riting bearing 
Date the 30th Day of January 1687 [24] in these Words, " I 
" Give & Bequeath to my Son Thomas Steel that Tract of Land 
** I now live on (y'e Land in Dispute) to him and his Heirs 
** forever. Item it is my Will that my three Children with their 
** Estates remain in the Hands of my Ex'r till they shall come 
** of the Age of 16 Years & then to have their Estates; and the 
** same Day made her Codicil in these Words "It is my Will 
** that if my Son Thomas Steel die* in his Minority before he be 
" of Age to enjoy my within mentioned Land, that, then my 
** other two Sons, John & W'm Manly shall have the said Land 
** equally to be divided between them & their Heirs forever. 
Thomas Steel at his Age of 16 entered into the Lands and took 
the Profits thereof, and lived till he had almost attained his 
Age of 21, & died without Issue; After whose Death John Manly 
entered into thd Lands and died in Possession leaving Issue the 
Deft. The Lessor of the Pl't is Samuel Hallows Son & Heir of 
Matthew Hallows, who was Son & Heir of Samuel Hallows who 
was eldest Brother of the said John Hallows. 

Q'r. What Estate Thomas Steel had in those Lands by y*e 
Will of his Mother, and whether upon his dying before 21 tho' 
in Possession, the Lands should go to Manly? And if the Lands 
shall remain over upon Thomas Steel's dying before 21 Q*r how 
his Issue could have inherited if he had had any.*^ 

I am of Opinion, that Thomas Steel by Virtue of the Will and 
Codicil of his Mother Restitue Manly, (taking it for granted the 
Will and Codicil were duly executed according to the Laws in 
Virginia), took an Estate in Fee Simple, but subject to the 



BARRADALUS REPORTS B27 

Contingency of his dying in his Minority before he should be of 
Age to enjoy the Land devised, and if he died in his Minority 
before he should be of Age to enjoy it, then y*e Land by the 
Codicil was devised over to John and WilUam Manly in Fee as 
Tenants in common by Way of executory Devise. — Mr. Hal- 
lows Title depends upon the Construction of those Words in the 
Codicil " If Thomas Steel die in his Minority before he be of 
Age to enjoy the Land devised," if by those Words Thomas 
Steel's Death before 21 is to be understood, Mr. Hallows will 
have no Title because Tho's Steel did die before his Age of 21; 
and in that Case if Thomas Steel had had Children they could 
not have taken this Estate; w'ch is so hard a Construction, that 
it can't be imagined the Mother intended it should be so — But 
if those Words in y'e Codicil shall be refer'd to the Words of the 
Will [25] whereby, by the Devise that y'e 3 Children with the 
Estates should remain in y'e Hands of her Extor, till they should 
come of the Age of 16 years, and that then they should have 
their Estates that — that was the time of Enjoyment intended 
by the Codicil, then after Thomas Steel came to 16 he was seized 
in Fee absolutely, and the Executory Devise over to John & 
W'm Manly could never arise, but Mr. Hallows as Heir-at-Law 
to Thomas Steel will be entitled to these Lands. 

If upon Thomas Steels coming into Possession he had an abso- 
lute Fee Simple in the Lands Q'r whether the Lessor of the Pit. 
hath not a good Title. 

And I apprehend this last Construction is the right Con- 
struction and is inforced by its obviating that Hardship, in some 
Measure, which the other Construction would introduce, in Rela- 
tion to the Defeating y'e Children of Thomas Steel, because it 
is not unreasonable to think that the Mother did not intend her 
Son should marry before 16 and if not he could have no Chil- 
dren to be defeated by the Devise over. And therefore upon the 
whole, if Mr. Hallows proves his Pedigree plainly, I am of 
Opinion he hath a good Title to these Lands devised. 

Lincolns Inn. Rob: Raymond 

Mar: 28, 1722 

[Note by W. G.] (This Opinion is published in North Carol. Law Repos. 72-4 ) 



B28 VIRGINIA COLONIAL DECISIONS 

MY OPINION TO THE CASE & QUERE'S STATED BY MR. SCOTT 
MINISTER OF OVER WORTON PARISH IN 

STAFFORD COUNTY 

To the 1st. I am of Opinion and do conceive that every Act 
or Agrem't made by a Vestry in their poHtical Capacity, & by 
them so registered or entered as an Order of Vestry is binding 
and obHgatory to themselves and their Successors as farr forth 
as the same descends or is Umited. 

2d. I am of Opinion and do conceive that if y*e Church 
Warden omits his Duty after the Levy laid by the Vestry he 
may be sued or if the Vestry omits laying y'e Levy according 
to their Duty they may be sued. 

3d. I am of Opinion & do conceive they may not (as this 
Case is, because there's a greater ObHgation upon this Minister 
than is usual) Neither do I conceive that the Parish is tied down 
or the Vestry to allowno more than 16000 lb. of Tob'o P. annum 
to y'e Minister, less, I am — Opinion they cannot do without his 
Consent: The Law made in 1696 (being the last) neither one 
Way or other confining either y'e [26] Vestry or Minister to 
grant more, or he to take less, so I conceive y'e Agreem't of 
either Party's rules the Case. 

4th. I am of Opinion & do conceive that by the Continunce 
of y'e Vestry so long in their Station all incidents requisite for 
their QuaHfication or capacitating of them to act as such & 
necessary to be done at their Entrance thereon, shall be in Law 
intended to be performed & done & not be construed, deemed 
or taken to be otherwise, and to be sure shall be obUgatory upon 
them because the Law will not allow any Person to take Advan- 
tage of his own Laches. As to the Successors I am of Opinion & 
do conceive that it is obUgatory upon them too for y'e Reason 
aforesaid, for if it shall be intended that they are Vestry Men 
qualified (tho' no Register or Entry of their having qualified 
themselves appears) by their Continuance so long; then their 
Successors I conceive bound by their Acts and Agreement as I 
have said in my Answer and Opinion to the first Article. 

5th. Lastly as to the Case itself I am of Opinion and do con- 
ceive that the Minister by the said Order is obliged & it is & will 
be esteem'd in Law his Agreemt. to preach and do such Acts 
on his Part as in the same is mentioned, for in a Deed %VLch 
Words would amount unto a Cov't & he is as equally obliged 
thereby to perform that as y'e Order of Vestry obliges them to 



BARRADALL'S REPORTS B29 

do theirs. The Consideration to be performed on his Side is so 
extraordinary that I cannot but conceive both Law & Equity- 
will justify y*e Vestry's Agreem't as to his Salary & providing 
him a Horse. 

Date 23d April 1713 S. Thomson A. G(0 : 

A. G. Not of England, certainly: quaere whether of Virginia. Hugh Blair 
Grigsby, esq. informs me that he was Stephens Thomson, the King's Attorney 
General in Virginia. W. G. 

1. A. makes a Will and gives a Mulatto Wench thus. I will 
that my Mulatto Girl Sue remain with my Wife B. during her 
natural Life and after her Decease I give her to my Son C. and 
appoints B. & C. Ex'rs & makes them Residuary Legatees. 
B. lives a long Time & Sue during her Life had 8 Children w*ch 
B. by her Will has disposed of. Q'r 1st. Whether C. has any 
Right to y'e Mulatto Girl seeing no preset Interest in him? [sic] 
[27] I am of Opinion C. has good Right to y'e Mulatto Girl by 
this Devise. 

2d. Whether B. had a Right to y'e Issue of Sue or any Part 
of them I am of Opinion (the Son not having the immediate 
Property in y'e Mulatto Girl tho* I think a future Interest vested 
in him by Way of Executory Devise) that y'e Property of y'e 
Children as they^ were severally bom did vest y*e Wife & Son 
jointly as Coex'rs & Residuary Legatees because it must imme- 
diately vest in somebody. It not being disposed of by y'e 
Testor. Then I think as joint'ts & no Division made, the 
Survivor hath by Virg'a Law 1705 Right to 'em all If they did 
not vest in them both as coex'rs & Residuary Legatees I think 
they must vest in the Son there being in my Opinion no Colour 
for the Tester's Intent or y'e Law by Implication or other 
Rule to vest them in the Wife except as Coex'r &c. 

Jno. HoUoway Virg'a 

March 9th 1718 

SIR JOHN RANDOLPH'S OPINION ON A CASE IN VIRGINIA 

IN 1734. 

[This headline apparently not in original. S.] 

A. in London purchased Lands in Virginia from B. and A & D 
join in a penal Bond to B. to pay the Consideration to B in 
London by the first Opportunity after the Lands were put into 
the actual Possession of A & theDeedswererecordedinVirg'aand 
that no Delay should be made on the part of A. A Defeazance 



B30 VIRGINIA COLONIAL DECISIONS 

was made by A. to B that if the Land was not possessed &c. 
in Months by A. then the Deeds of Release &c. from B. to 

A. should be void. The Deeds were not recorded nor Possession 
delivered to A until after the Time mentioned in the Defeazance 
but it was occasioned by B.'s Wife who was by the Deed to 
rehnquish her Dower which she refused for so long that the 
Time was passed and A was obHged to pay her a Consideration 
at last and then Possession was deUvered to A & the Deeds 
were recorded in due Form of Law. Immediately after A writes 
to B & sends an Order on D. to pay the Consideration & he also 
wrote to D. to pay the Money. A having lodged the same in 
his Hands for that Purpose. B did know in Time that A was 
in Possession of the Land but neglected to compel D to comply 
with his Bond, & never acquainted A that the Money was not 
paid — but A always beUeved the Money was paid until some 
time after D failed in [28] his Credit & became a Bankrupt, 
Then B. having assign'd the Bond his Ass'ees demanded the 
Money of A. affirming that D. never paid any part of it. A has 
since paid to B's Ass'ees the principal Sum and they insist on 
Interest — and my Opinion is desir'd whether as this Case is 
that by B's Neglect A has really twice paid the Consideration 
that [sic] can be compelled to pay Interest? And whether as 
this Case is the Defeazanc as above stated & having never been 
inroll'd here can defeat A's Title by Deeds that are? And upon 
this Case I am of Opinion that A. must pay all the interest that 
was due upon this Bond from the Time of his taking Possession 
of the Land till the Paym*t of the principal Sum For tho' it 
was not just in B. to keep A's Order on D. & not to let A know 
that the Money was not paid, yet that Order however illy nego- 
tiated could not extinguish or alter the Debt w'ch A. owed to 

B. upon his Bond unless A would give up the Land & the Debt 
was extinct there can be no Reason ag'st paying the Interest 
which is a Favour to A. to discharge him of the Penalty. And 
besides in this Case some Neglect may be imputed to A. who 
should have inquired after the Order he had drawn upon D. & 
when he found a Delay in y'e Paym't of it, should, have taken 
other Measure. But the greatest Negligence was in D. whose 
Business was to have paid y'e Money & taken in the Bond, and 
as D. was intrusted by A. it is most fit for A. to Suffer by his 
Management and not B. who knew he had a double Security for 
y'e Money and might take Land if y'e Money was not paid. 



BARRADALL'S REPORTS B31 

As to the Defeazance (tho' I don't think the Want of Inrollm't 
would alter the Case one Way or other) I am of Opinion when 
the Pvirchase Money is paid tho* not in Time, The Estate cannot 
be defeated. 

J : Randolph 

[29] Thomas AUaman seized in Fee of 700 acres of Land died 
Intestate leaving Issue by his first Wife Judith a Daughter & 
by his second Wife three sons John Thomas & William. 

John died an Infant without Issue. Thomas died also in 
his Infancy without Issue 

WilUam lived to be of age entered & was seized & being also 
possessed of some slaves & personal Estate died Intestate in 
1732 leaving a wife a son Thomas & a Daughter Sara Thomas 
died soon after his Father an Infant of tender years Sara died 
lately being abt. 12 years old Her mother is now living. There 
are no Relations of Sara on the Part of the Father but the Aunt 
Judith who is but of the half Blood But there are Heirs on 
the Part of the Mother 

The Question is who is intitled to the Land Slaves & personal 
Estate of Sara As to the Lands they are certainly escheated 
and the mother being in Possession I conceive will be preferred 
to a Grant of them if she appHes for one 

The personal Estate (exclusive of the Slaves) which I suppose 
to be only Sara's share of her Father's Estate I think clearly 
must be divided between the Mother and the Aunt of the half 
Blood who is the next of Kin on the Part of the Father to this 
Purpose But the Mother alone is intitled to the Administra- 
tion 

As to the Slaves it is not so easie to determine who is intitled 
to them It is however certain that the Aunt of the half Blood 
cannot take them by Descent whatever Right she may have 
to a distributive Part of the Value in Case they are to be taken 
as Chattels 

The First Question will be properly between the Heir on the 
Part of the Mother & the Administratrix whether the Slaves can 
descend to such Heir they descending to Sara the Intestate on 
the Part of the Father 

And I am of Opinion that the Heir on the Part of the Mother 
can not take these Slaves by Descent any more than he can the 
Lands which came from the Father It is incontrovertible in 



B32 VIRGINIA COLONIAL DECISIONS 

the Case of Lands that such as descend on the Part of the Father 
can never resort to the Line of the Mother but shall rather 
escheat as they do in this Case By the Act declaring Slaves a 
real Estate they are to descend as Lands held in Fee simple 
How then can the Heir on the Part of the Mother come in 
Slaves indeed cannot escheat but by a Proviso in the af'd Act 
are in such Case to be taken as Chattels And consequently they 
must go to the Administratrix. This seems mighty clear to me 
But I must observe that I have never known this Point come 
in Question or do I believe it was ever yet determined in the 
General Court. 

If the Slaves are to be taken as Chattels in this Case there will 
then be another Question whether the Aunt of the half Blood 
as next of Kin to the Father is intitled to Distribution Or whether 
the Mother as Administratrix be intitled to the ;<vhole. 
[30] This Point is also quite new to me but upon the best 
Consideration I have been able to bestow I am of Opinion that 
the Aunt of the half Blood is not intitled to Distribution as to 
these Slaves tho' they be personal Estate Nor to any other 
personal Estate of the Intestate Sara except her Share of her 
Father's personal Estate. 

Upon the whole I am of Opinion that the Lands are escheated 
that the Mother alone is intitled to the Administration & in that 
Right to all the Slaves and that the Aunt of the half Blood is 
intitled only to one half of the Intestate's share of her Father's 
personal Estate. 

I advise the Mother to take out an Administration to her 
Daughter & also to petition for a Grant of the Lands as escheated 
and that without any Delay. 

Edw. Barradall 
W'm'sburg 29 Mar. 1741 



BARRADALL'S REPORTS B33 

[31] Cases adjudged in the General Court of Virginia 

from April 1733 to October 1741 taken by 

Edward Barradall Esq; 

[Note by W. G.] (Late Attorney General there. In Myers's copy.) 

Also some Cases taken by Mr. Hopkins between October 

1731 & April 1733 

[Note by W. G.] (This is not in Myers's copy.) 

APRIL COURT MDCCXXXIIJ 
MuRD(XK V. Thornton Appeal from Stafford. 

The question in this case was whether a man confessing Judg- 
ment in custody is in Execution without prayer of the Pl't. 
The case of Diggs and Fleming in this Court (•) was insisted on 

(0 V*d*^this.Case J. K. Arguments. 73. 
which was, One {sic'\ confessed judgment in .Custody and was 
discharged by the County Court upon the Act for reUef of Insol- 
vent Debtors The Act speaks only of persons in Execution 
So unless he was in Execution the County Court had no Power 
to discharge him But Adjudged the Court had Power to discharge 
him and consequently that he was in Execution. 

For this point see Comb. 329. that after two Terms upon filing Comon 
bail tiie del. is discharged. 

For the Appellant (Prt below) It was also insisted that the 
Entry of the Committitur was only Form and that the Clerk 
should do it of covcrse without prayer That in England it was 
the meer Act of the Attorney who enter' d it upon the Roll For 
the Appellee it was answered such practices would be incon- 
venient for thereby the Pl't would be forced to take Execution 
against the body when perhaps he had rather have it against 
the Estate. 

Adjudged that he was not in Execution without prayer and 
so County Court Judgment affirmed. 

[Note by W. G.] (Rob. Virg. Pract. 137.) 



B34 VIRGINIA COLONIAL DECISIONS 

OCTOBOR COURT MDCCXXXIIJ 

Oct'r 20. 1733. Philip Lightfoot Esq. was sworn one of the 
Council in the General Court and a Judge of the said Court 
Oct'r 25. Thomas Lee Esq. was likewise sworn. 

[32] Reeves ag't Waller 

[Note by W. G ] ( Jeflf. Rep. 8, s. c.) 

The Pl't brought an Action upon the case in Essex County- 
Court for forty shillings won upon a horse race and had a Ver- 
dict in his favour. In arrest of Judgment it was objected that 
the Prt ought to have sued by way of petition upon the Act of 
1 Geo : 2 for recovery of small Debts and for this reasonjudgment 
was stayed and the Prt ordered to pay Costs 

And now I moved for a Writ of Error The doubt was whether 
It could be allowed the principal debt being under five potmds 
And no Appeal or Supersedeas ought to be granted by the Act 
of 1 Geo: 2. 

I insisted that the Act did not mention writs of Error And 
that the Subject was intitled to them of common right. 

But the Court seemed to incline that Writs of Error were 
within the Act However a Writ of Error was allowed upon the 
Authority of Spotswood & Harrison's Case in this Court 

In which the Court came to a solemn resolution that the Act 
did not intend to exclude the Pl't from an appeal &c. but the 
Deft only see the Act c 3. 8. 14. 

McCarty ag't McCarty's Extors. In Chancery 

Daniel McCarty being possessed of a large personal Estate 
And among others of a Bond debt of ;^ 291 and Interest due from 
John Fitzhugh one of the Def'ts makes his Will and after several 
legacies devises the residue to his three Sons D. B. & T. and 
makes them Executors but because they were under age makes 
the said John Fitzhugh and the other Def'ts Executors in trust 
till T. arrived to 17. This Bill was brought by D. one of the 
sons and residuary Legatees against the Trust Executors for an 
Account of the residue Of which J. F's Bond is charged to be 
part. 

I. F. Answers separately and submits whether the debt be 
not extinguished by his being made Executor which he says he 



BARRADALL'S REPORTS B35 

believes was the Testator's intention because the Deft coming 
to see him in his last Sickness and expressing some uneasiness 
about his bond The Testator said if he thought any child of 
his would trouble him for it he would bum it before his Face 
Says he married the Testors Eldest daughter and that the testor 
promised to give him as much as he gave any of his other daugh- 
ters That he gave the Deft only nine Negroes in his Hfe time and 
two by his will and that he gave two daughters ;^500 a piece by 
his will and the Deft [33] hopes to be allowed as much out of 
the bond as will make his Wife's portion the same Sayes he 
employed the Testor to purchase an Estate for him which the 
testor bought for himself and devised to the Complain't and 
hopes that will be considered 

This cause was heard upon the Bill & Answer 

Hopkins for the Pl't insisted 

That the Debt tho' extinguished at Law is Assets in Equity 
and cited 8. E 4. fo 3. Nichols ag't Chamberlayne. Nel. 44 S. C. 
3. Ch. Rep. Tlud & Rumsey Yel. Phillips ag't Phillips — 1 Ch. 
Ca. 292. S. C. Finch 410 Wankford ag't Wankford 1 Salk. 
299. — Dorchester ag't Webb 1 Cro: 372. 

Sr. J. R. for the Deft. The testor' s intent was to discharge 
the Debt by making I. F. Executor as may be Inferr'd from his 
discourse with I. F. mentioned in his Answer That collateral 
proof is admitted in Equity to explain a testor' s intention and 
cited Lady Granville ag't Dutchess of Beaufort 2 Vern 648 & Id. 
593. 736. 

This rule was also insisted on He that will have Equity must 
do Equity That the Deft, had a great deal of Equity against the 
testor upon the several Matters disclosed and sworn in his 
Answer particularly that about his Wife's portion and the Land. 

The Bill was dismist 

Note it seemed to be agreed by Sr. J. R. that the Debt was 
Assets which is certainly a clear point And the Courts Opinion 
as I took it tum'd upon the Matters disclosed in the Deft.'s 
Answer. 

Vide Sir J. Randolph's Argument Def. No. 42. 

Nicholas & his Wife ag't Burwell's Extors In Chanc'y. 

2. Hop. 89. [Note by W. G.] (Hop. 18. Rand. 101. In Myers's Copy.) 

Burwell by his Will devises to the Child his wife was Enseint 



B36 VIRGINIA COLONIAL DECISIONS 

with if a Son £2000, if a Daughter ;^1000. when such Child 
arrived at the Age of twenty one After the Testor's death his 
relict was delivered of a daughter who dyed before twenty one 
And this Bill was brought by the Pit. and his wife (the testor's 
relict), for her part of the ;^1000 devised to the posthumous 
daughter. 

The Defts. Demurred because it appeared by the Complain- 
ant's own Shewing the daughter dyed before twenty one and 
so the legacy never vested — 

Randolph for the Defts. 

There is a difference where money is devised to one at such an 
[34] age or when they come to such an age and where to be paid 
at such age. In the first place if the Legatee dyes it is a lapsed 
legacie but in the other case it shall go to the Executor or Admin- 
istrator That the reason of this distinction is rather from a 
complyance with the Civil Law and the determination of the 
Spiritual Court that there may be an uniformity in Judgment, 
than from any real difference in the nature of the thing. That 
as there was no Spiritual Court here the distinction should be 
exploded And that the legacy lapsed in both Cases Cited Swinb. 
310. 313, Wentworth Cloberry*s Case 2 Vem 343. 2 Ch. Ca. 
155. s. c. 2 Ch. Rep. 155, Godb. 182. Smell con Dee 2 Salk. 415. 
Lord Pawlet's Case 2 Ch. rep- 165. S. C. 2 Vem. 366. Cave & 
Cave 2 Vem. 508, Yeats & Fettiplace Id. 416, Smith & Smith 
Id. 92. Carter v Blesto Id. 617. Onslow & South Eq. Ca. 
Abr. 295. 296. Vide plus ibidem 

But if this be not a lapsed legacie it is not paiable till the child 
would have been twenty one And cited 2 Vem 283 Papworth 
ag't Moore Eq. Ca. Abr. 299. 2 Vem. 199 

Hopkins for the Complts. 

Insisted that the distinction between a legacie given at such 
an age and to be paid at such an age was exploded there being 
no real difference and the intention of the testor was the same 
in both cases and that the intention ought to govern He said the 
legacie vested in both Cases and should go to the Extor — Cited 
Sanders con Erie 2 ch. rep. 8'o 188. Luke ag't Aldem 2 Vem. 
31. & 2 Vern. 199. 

And sayed the Cases of Yates & Fettiplace Lord Pawlets & 
Smith & Smith would not affect this Case because there the 
Charge was upon land and it was to ease the heir As to the 



BARRADALL'S REPORTS* B37 

Objection that the Suit was brought too soon because the 
(i^aughter would not have been twenty one if alive He cited Lady 
Lodges case 1 Leon. 277. 278. & Sanders [(4) Note by W. G.] 
con Erie Supra. 

[Note by W. G.] ( Vide Ch. Ca. Abr. 209-300 that the adm'r must wait till the 
legatee wotdd be of age, but if a legacy is g^ven to A. paiable at 21 and if he dies 
before then to B. he shall have the Legacy presently 2 W'ms 478. Laundy vs W'ms.) 

[Note by W. G.] (Not in Myers's copy.) 

The Demurrer was allowed. 

See Mod. Ch. Ca. 105. 106. Sayed to be a standing rule in 
Equity that where a portion or legacy is to be paid at a time 
to come out of lands if the Legatee dies before the day the legacy 
is sunk & gone. But it is otherwise if the legacy is to be paid 
out of personal Estate. 

[ Vide Sir J. Randolph's Argument 1 Defts. No. 39 

So where portions were charged on Lands, and if any of the 
Children died before twenty two or marriage to go to the Sur- 
vivors, One dies, that portion shall not be paid before it Would 
have become due, had the Child lived. Select cases in Chan. 15. 

[Note by^W. G.] (This not in Myers's copy.) 

[35] MicoN ag't CoRBiN. 

This was an Action of Account Render Persons were ap- 
pointed by the Court to settle Accounts between the Parties 
Who having returned an Account stated Judgment was now 
prayed for the ballance found due to the Pit. 

Randolph for the Deft. Opposed a Judgment and sayed the 
Judgment of Auditors in account was not final. That this was 
not like the Common Case where matters of Account are referred 
by assent. That the Auditors had mistook their Office and 
should have persued the method prescribed in the books in 
Actions in this nature i.e. Where there is any doubt or dispute 
to make up an issue and send it to the Court for Tryal And 
cited a precedent to that purpose. 

The Court overruled the Objection It having been the Practice 
here to proceed in this manner and Judgment for the Pit. 

[Note by W. G.] (See Rob. Virg. Pract. 76.) 

StITH ag't SOANE & OTHERS. 

This was an Information against the Justices of Charles 
City for not keeping a sufficient Prison. The Pit. offered in 



B38 VIRGINIA COLONIAL DECISIONS 

Evidence the record of a Judgment in an Action brought against 
him when Sherif for an Escape in which it was found by the 
Jury that the Prison was insufficient And allowed by all the 
Court except Grymes who thought it should be only admitted 
to prove the damages the Sherif had sustained but not the insuffi- 
ciency of the Prison — 

The King ag't Moorb 

[Note by W. G.] (Hop. 17 in Myers's Copy.) JeflE. Rep. 8. S. C. 

An Information was brought against the Deft, upon the Act 
of 5 & 6 Geo. 2. laying a duty upon Slaves for not transmitting 
to the Collector of the duty's a List of the Slaves by him sold 
imported in the ship A. 

The Deft. Offered as Witnesses the Master and Steward of the 
Ship to whom Mr. Attorney Objected as parties in interest hav- 
ing Slaves of their own aboard But the Court seemed to think 
it no Objection And sayed at the Bar if two are concerned in a 
trespass and one is Indicted the other may be a Witness for or 
against him And by Sr. J. R. If one is sued for any matter for 
which another is also chargeable that other person may be a 
Witness. 

The Jury found a Special Verdict. 

That the Act was passed 1 July 1732 about four in the After- 
noon [36] (5) and the Ship came to an Anchor off Back River the 
said 1 July about two leagues from the Shore Came into the 
Capes about twelve and came to Anchor ketween seven and 
eight and could have got up to York if they had had a Pilot 
On the second of July the Ship got into the mouth of York on 
the third to York Town and enter'd the fifth. 

2 Questions were made upon the Verdict 1st Whether the 
day of passing the Act was exclusive or inclusive 2d Whether 
this was an Importation. The words of the Act are ** From 
and after the passing of this Act there shall be paid &c. for all 
Slaves imported or brought into this Colony and Dominion for 
sale &c." As to the first for the King it was insisted there 
could be no fraction of a day And the Act being passed the 
1 July that whole day must be included And Clayton's Case 5 
rep. 1 was Cited. 

Hopkins for Deft, agreed there was no fraction of a day but 
insisted the day of passing the Act was excluded and conse- 



BARRADALUS REPORTS B39 

quently this Importation was before the Act & Cited Clayton's 
Case supra and the Case in Dyer 5 Eliz. 218 there cited Which 
seemed to be in point. 

Also cited Holt's Opinion in Rob't Howards Case 2 Balk. 625. & Lord Rocking- 
ham ag't Oxenden 2 Salk 578. 

As to the 2d. Insisted for the King that the Place where the 
Ship Anchored 1 July was not within any port & so no Importa- 
tion To which it was answered There are no ports laid out here 
as in England And that coming within the Capes with an Intent 
to come strait to Virginia is an Importation. 

Judgm't for Deft. 

[ Vide Hopkins Argument in Libro parvo. 84. 2 Hop. 

[Note by W. G.] (This is not in Myers's copy.) 

The King ag't Pryor. 

Indictment for an Assault It was moved by the Deft, that 
the Indictment might be dismissed because the deft, before the 
Bill found had given his note to the prosecutor for two pistoles 
in satisfaction of the Assault But the Court refused to dismiss 
it because there is a fine to the King. 

[37] Meggs ag't Bales Appeal from Essex. 

This Case was upon a Special Verdict where it was found the 
Deft promised to pay the Debt of another but no consideration 
of the promise found 

It was insisted for the Appellant (the Deft, in the Action) 
that this was Nudum pactum & void as well in law as in Equity 
& Justice — Since it was neither advantage to him that made 
the promise nor loss to him to whom it was made And the Pit. 
bad still his remedy against the principal since he was not dis. 
charged. 

The Cases cited for the Appellant were Dr. & Stud't 210. Mar. 
203. Pop. 183. Cro. Jac. 207. 213. 438. 1 Ventr. 9. 27. 159 Cro. 
El. 19. 703. 1 Salk. 364. 

1 Vent. 6. Ba. Abr. 30. 4. 

But notwithstanding all those authorities expressly in point 
the Court Adjudged it a good Promise And County Courts 
Judgment Affirmed. 



B40 VIRGINIA COLONIAL DECISIONS 

These Authorities were not denied nor one book quoted 
against them. But the Argument was the common case of Mer- 
chants giving credit in their Stores and who every day trans- 
ferr'd one Man's debt to anothers account — 

NB. There seems to me a great difference in the Cases Where 
credit is given in a Store the delivery of the goods is a good 
Consideration. And as to the Case of transfeiring debts there 
is also a good consideration if Credit is given to the principal 
for thereby he is discharged — 

[W. G.] (6). 

APRIL COURT MDCCXXXIV 
The King ag*t McClanahan 

2 Hop. 117 [Note by W. G.] (Hop. 29. in Myers's Copy) Jeflf. Rep. 9. S. C. 

Debt for 3000 lbs. Tobacco on the Act 7'o Geo. 1. for refusing 
the office of Sherif . 

The Case was the deft, was the first of the three recommended 
by the County Court A Blank Commission was sent up to the 
Clerk of the County Court under the Seal with directions from 
Mr. Robertson to offer the Commission to the deft, and if he 
refused to put in the name of the next person recommended. 
Deft, refused before the County Court and the Commission was 
filled up with the name of another And whether the deft, was 
liable to the penalty of the Act was the question. The words 
of the Act are **That every person hereafter Commissionated 
to be a Sherif and refusing Shall forfeit &c. In this Case the 
deft, never was commissionated his name was never in the 
Commission And so [38] he is not within the Act. 

Judgment for Deft. 

Note it was said the pratice of sending out blank Commissions 
under the Seal was of dangerons consequence and it was not safe 
for any man to fill them up. 

LiGHTFOOT ag't LiGHTFOOT 

[Notes by W. G.] (Hop. 30. Rand, in Myers's Copy.) 2 iHop. 121. 1 Vera. 
234. Massenburg and Ash. 2 Vem. 38. Smith & Clever 2 Vera. 43. 195. Peacock 
& Spooner, 1 Sal. 225. Lamb & Archer. (S. C. Cited Jefif Rep. 46.) 

Francis Lightfoot by his Will devises (among other things) 
as follows ** I give all the remainder of my Estate real & per- 



BARRADALL'S REPORTS B41 

*' sonal to my son Francis & the heirs male of his body and if 
** he dye without such Issue or if there be any failure hereafter 
** in the male line Then I give the same to my brother P. Light- 
** foot & his heirs He or they paying to my daughter 2500;^. 
** in full compensation for the same.' 

The Testor's Son lived 2 or 3 years after his father dy'd young 
and without issue And now a Bill is brought by the daughter 
for the residue of the personal Estate devised to the son & for 
the profits of the real Estate from the death of the father to the 
death of the Son To which bill the deft, demurred And the great 
Question was whether the remainder to P. Lightfoot of the per- 
sonal Estate was good 

Hopkins fr Deft. Such a 'remainder of a personal thing may 
well be it being upon a double contingencie either of the sons 
leaving no issue Male at his death Or if there should be after- 
wards any failure in the Male line The first contingencie being 
within the compass of a life the remainder on that Contingencie 
is good & that contingencie has happened. He agreed the 
remainder upon the second Contingencie was void And if the 
Son had left Issue at his death P. L. the remainder man could 
not have taken 

Cited Pinbury v, Elkin. 2 Bern. 758. 766. [Other citations 
illegible.] 

Randolph fr Deft. The old books are that a personal thing 
can't be limited but this Opinion exploded ever since the restora- 
tion And now a more liberal construction of Wills is allowed 
to support the testor's Intent October 1730 Edmonds vs Hughes 
Adjudged in this Court But if the remainder was not good the 
last words in the limitation to the deft, plainly shews the testor 
intended his daughter should -have but 2500;^. 

Nelson 174 2 Vem. 246. 331. Finch Rep. 116 2 Vera. 86. 151. 2 Vera 347. 758, 
776, 686. [Note by W. G.] (Not in Myers's Copy.) 

Sayed the Pit. by contesting the Will would forfeit her legacie. 
Cited Hem v Hem. 2 Vem. 555. Id. 580. 

For this point see Powell v. Morgan, 2 Vera 90, 91. 2 Vera. 668 Webb & 
Webb. 

But this seems quite from the Purpose 

Mr. Attorney for the Pit. This remainder is not good The 
[39] Son has an Estate tail by the Words of the .Will and a 



B42 VIRGINIA COLONIAL DECISIONS 

chattle can't be intailed Whitmore & Craven 1 Vem. 326. 2 Ch. 
Ca. 167. Alice Loman's Case Poll. 37. 

Demurrer allowed 

See Fitzg. 314. a Case directly in Point adg'd con. And see 
the Cases there cited pro & con. See also Gilb. 105. Seale v. 
Seale. 

Berryman ag't Booth. 

A writing purporting to be a Will was found among the Papers 
of the Pits. Father after his Death. It was signed by him and 
three Persons subscribed as Witnesses By this he gives all his 
Estate to his Wife Some time after the Date of this Writing he 
has a Son (the Pit.) bom and then he declares he would make 
his Will and dyed soon after this Declaration The Wife soon 
after his Death proves this Writing as his Will in Common 
Form and obtains a Probate Two of the Witnesses to this 
Writing are dead and the third swears she does not remember 
signing it The Pit. now brings his Bill ag't the Deft, (who 
married the Testor's Wife) for divers Slaves that were the Pit's 
Father's and came to the Deft's hands by the marriage aforesaid 
The Bill suggests that the Pits. Father died intestate Or if 
the aforesaid Writing should be adjudged a Will the Birth of the 
Pit. afterwards was a Revokation of it. 

Mr. Attorney for the Pit. There being no Proof to this Writing 
per testes — Or that it is the Testor's Hand Writing and one of 
the Witnesses declaring she does not remember signing it This 
could not be looked upon as a Will Especially if the Declaration 
after the Birth of a son be considered which strongly implys 
he had no Will at that Time or at least that he had an Intention 
to alter it And it is no Wonder the Wife proved it who gained so 
considerably by it. 

That if this could be taken for a genuine Writing yet 
the Birth of a son afterwards is Such an Alteration in the 
Testor's Circumstances that a Revocation may well be pre- 
sumed Otherwise here is a Child sent a begging [40] and 
cited Lugg v Lugg 2 Salk. 529. and the Case of Shelton's 
Will in this Court where the Testor having several Children 
bom after making his Will a Revocation was presumed and 
adjudged accordingly 

Hopkins f Deft, The validity of the Will cannot be con- 



BARRADALL'S REPORTS B43 

tested here in this Suit but should be in the County Court where 
Probate was granted Or upon an Appeal in this Court 2 Vem. 
8. Moss V Archer. 2 Vem. 76. Nelson v Oldfield. But this a 
good Will and appears upon the Face of it to be genuine And 
Wills are seldom proved in any other Manner in England and 
If this be a Will the Birth of a Son afterwards does not revoke 
it By the Civil Law a Testament is annulled by the Birth of a 
Child Dom. Vol. 2. 40. But not by the Law of England Swinb. 
2. p. 174. 

Decree for the Pit. 

IsBELL & HIS Wife ag't Butler & others 

In this Case a Question was made whether a slave given by 
an Intestate in his Life time to a younger Child should be taken 
at the Value he was when given or the Value at Testor's Death 
Et per tor Cur' at the Value when ^ven Et rede ut Opinor tho* 
Rand. & Hopk. con. 

s. C. Jeflf. 10. 

Jennings & his Wipe ag't Willis 

There was a solemn Argument in this Case and County Court 
Judgment affirmed by 7. Judges against two Upon reading the 
Orders next Morning Sr. J. R. moved that the Court would 
hear another Argument and granted which note as being without 
Precedent.! 

'Note. There is a Precedent where the Court ordered Judgment to be entered 
for the Pits, and the next Day ordered it shotdd be stayed Cro. El. 93-4 

In April 1735 A like Instance between Chew & Stevens. 



[41] OCTOBER COURT MDCCXXXIV 

Graves v, Kennan Appeal from Essex 

In Detinue for a Chest of Medicines of the value of 40;^. upon 
Non detinet pleaded the Jury found that the Deft, did detain 
the Chest that it was of the Value of six Pence and Damages 
10;^. and Judgment for the Pit. below. 



B44 VIRGINIA COLONIAL DECISIONS 

Upon an Appeal Exception was taken to the Verdict that it 
was in certain finding that the Deft, did detain not that he doth 
detain and so not pursuant to the Issue Besides the Jury value 
the Chest only to six Pence yet give 10;^'. Damages which is 
unreasonable and absurd. 

And for these reasons the Judgment was reversed and the Record 
remitted to the County Court for a new Trial 

Exception was also taken to the Declaration that Detinue would 
not lie for a Chest of Medicines without setting forth the par- 
ticular medicines. 

Randolph for the appellant sayed it would not be good in 
Trover and that Trover and Detinue were all one and cited 
Palm. 393. Stile 482. 1 Ven. 114. 2 Lev. 85. 3 Lev. 18. 1 Vent. 
317. Sid. 445. Carth. 131. 

Barradall f Appellee Trover and Detinue are not the same 
and greater Certainty is required in Detinue than Trover 
2 Salk. 654. But this is certain enough in Detinue All the 
Certainty requisite is that it may be described to the Jury and 
known by the Sherif when he comes to make Delivery Co. Lit. 
286. b. 2 Bulstr. 308. And that may very well be in this Case 
It would be almost impossible to describe every particular 
Medicine and the Pit. must have failed in his Proof if he had 
done so. 

But if Trover and Detinue are all one then this Declaration is 
certainly good for Trover will lie of a Box full of Linnen of the 
Value of 20 £ Cro. Jac. 664. for a Library of Books 1 Ven. 114. 
for 290 pedes Argenti 1 Salk. 219. for 20 Ounces of Cloves and 
Mace without distinguishing how much of either 2 Sal. 654. for a 
Case of Spirits Far. 141. And besides the Cases above cited 2 
Saund. 74. 1 Sid. 98. 2 Show. 315. Skin. 147. 3 Lev. 336. 1 Sid. 
263. 1 Keb. 807. 

And per tot. Cur. praster Carter the Declaration is certain 
enough. 

[42] A question was made if Lands granted before 1710. should 
be forfeited for want of Paiment of Quitrents within the Act 
of 1710. and that of 1713. And Adjudged that such Lands are 
not within those Acts. 

But qucere of this Judgm't for the Act of 1713. seems clearly 
to comprehend them vid. S. 9 & 10. 

Besides there is this Inconvenience If the Patentee of Lands 
granted before the Act deserts the Land and removes out of 



BARRADALL'S REPORTS B45 

the Colony the King can have no remedy for the Quitrent and 
yet can't grant the Land to another 

Yet in April 1741. the same Point was adjudged that these 
old Grants were not within those Acts The Case was between 
Bourden & Hill and the Pet. suggested as well the want of 
Cultivation as the nonpaim't of the Quitrents It was proved 
that there had been no Cultivation within 5.6 years (The Pat 
was granted in 1674.) but the Court sayed it ought to be proved 
there never was any Improvement, or they wo*d presume it at 
this Distance of Time w'ch seems a strange Opin. Especially 
in the Kings Case. The Pet. was dismissed. 

APRIL COURT MDCCXXXV 

Hunt ag't Harratson's Ex'ors 

Judgment was confirmed in the Office ag't Harratson in his 
Life time and now upon a Scire facias ag't the Ex'ors a Writ of 
Inquiry was executed The Question was whether a Lawyer's 
Fee should be taxed in the Bill of Costs and ruled that it should. 

Darby ag't Stringer. 

s. C. Jefif. 10. 

Petition for Land granted in 1669. as lapsed for want of Seat- 
ing Upon slight Proof of a seating many years ago tho' no 
Appearance of it now Adjudged that the Land was saved. 

[43] Harwood ag't Grice. Supersedeas 

The County Court refused to let an Ex'or be a Witness to 
prove a Will. 

Randolph sayed it was the most known Thing in the World 
that an Executor might be a Witness If he was a Legatee he 
must release his Legacy 

And per curiam he is a good witness Vide Tryl. per Pais 309. 
And qucBre, In the Case of Hill ag't Hill April 1737. The like 
Point was held in a Trial on a feigned Issue directed out of 
Chancery to try whether Will or no Will. 

Waddill ag't Chamberlayne. 

S. C. Jeff. 10. 

The Pit. declares that the Deft, fraudulently and deceitfully 
Sold to him a Slave for a great Price 2b £, knowing the said Slave 



B46 VIRGINIA COLONIAL DECISIONS 

at the Time and for a long Time before laboured under an 
incurable Disease not discovered by the Pit. and was of no 
value There is a Verdict for the Pit. and I have moved 
in arrestof Judgment that this action will not lie without a 
Warranty. 

This is an Action upon the Case in Nature of Deceit and such 
Actions I agree will lie in some cases but not in this The Charge 
here is no more than selling a Thing of Small Value for a great 
Price and not discovering the Defects. And however inconsis- 
tent this may be with natural Justice It is tolerated by the 
universal Consent of Mankind where buying and selling is used 
The principal advantage in the way of Commerce is to sell dearer 
than you buy And as to the Quality or Goodness of a Commodity 
the Law has left it at large pretty much to the Conscience of the 
Seller who too often takes advantage of the Buyer's Ignorance. 
The Law has provided a Guard against those Impositions to 
those who are Prudent enough to make use of it that is a War- 
ranty from the Vendor of the Goodnes Value &c. But without 
such Warranty no Action will lie for any little Fraud Or Over- 
reaching in the Value or Goodness of the Thing sold But in such 
cases the Rule is Caveat emptor And if the Law was otherwise 
there would be no End to Actions but every Contract almost in 
buying and selling might produce one. 

There is no Rule of Law perhaps more universally known than 
this It is in every one's mouth What Frauds are [44] practised 
every Day in the sale of Horses yet I never heard of an Action 
brought without a Warranty No man thinks himself obliged 
to discover the Defects of the Thing he sells and unless the 
Buyer is prudent enough to exact a Warranty I take it he is 
without Remedy. 

I will not deny but there are some Instances where an Action 
will lie for Deceit in a Sale without express Warranty as where 
it is a Thing unlawful in itself as the selling of bad Victuals 
9 H. 6. 53. b. 11. E. 4. 6. b. Kel. 9L Cro. Jac. 197. 470. but 
the Reason given in all these Cases is that it is prohibited by 
Law to sell bad Victuals which proves the Action would not lie 
but for that reason. 

2 Ro. Rep. 5. 6. 

So if I sell a Thing affirming it to be mine when it is anothers 
this affirmation amounts to a warranty if I am in Possession 



BARRADALL^S REPORTS B47 

otherwise not 1 Salk. 210. Medina ag't Stoughton So are 
divers other Cases which prove there must be either an express 
Warranty or something that amounts to it in Construction of 
Law And it is evident from the Case of Medina &c. that if 
sell a Thing out of my Possession affirming it to be mine (tho* this 
is an apparent Fraud) no Action will lie for there Caveat emptor 
says the Book. 

Cro. El. 44 Cro. Jac. 474. 1 Ro. Ab. 90. 3. Mod. 261. Show. 68. 

There is a Case that I suppose will be quoted against me 
And if That is Law then this Action will lie but I humbly con- 
ceive it is not 9. H 6. 53. b. in 1 Ro. A. 90. If a man sells a 
Piece of Cloth knowing it not to be well fulled an Action of 
Deceit lies for this is a Warranty in Law says RoUe but the 
Book says no such Thing nor indeed is the Point adjudged in 
the case but cited to be adjudged in another Case. It is only a 
saying obiter of one of the Judges and can carry no great author- 
ity with it especially as it is not supported by any subsequent 
Resolutions but the whole Current of Authorities since is con- 
trary. 

There is the Opinion of Frowick in Kelw. 91. and of Popham 
in new Dier 75 Margine Chandler ag*t Lopus in Favour of this 
Point but the first is a single Opinion And as to the second tho' 
it was adjudged in the K's Bench according to the Opinion of 
Popham yet that Judgm't was reversed in the Excheq'r Chamber 
Cro. Ja. 4. 

If a man sells a Pipe of Wine that is corrupted [45] and 
does not warrant it to be good no Action lies F. N. B. 94. c. 
Bridgman 12. 7. and 1 Ro. A. 90. con. is not warranted by the 
Book for it appears in the Case there was a Warranty It is 
said indeed the Warranty is not Material but what is the Reason 
given why because it is prohibited to sell corrupt Victuals Bridg. 
127. Southern ag't How Case of a Counterfeit Jewel which the 
Deft, knew to be so Adjudged no Action lay without a Warranty 
In the Report of this Case Cro. Ja. 468. the Council for the Pit. 
labour this Distinction where the Deceit is sciens or not No 
Judgm't is given by the Report there but in Bridg'm Judg't 
was given for the Deft because the Action would not lie without 
a Warranty except in the Case of bad Victuals which goes upon 
another Reason as I have shewed. 

Pop. 143 S. C. 



B48 VIRGINIA COLON-IAL DECISIONS 

If a man sells a Horse that is lame or diseased without War- 
ranty no Action lies F. N. B. 94. c. Bridg. 127. 1 Ro.Ab. 90. 4. 
This is a Common Case and what every Body knows and was 
never yet denied Nay if there is an actual Warranty it extends 
only to secret Infirmities not such as are visible and apparent 
as the Want of an Eye or any other Defect within the Knowl- 
edge of the five Sences as the Book ot 11. E. 4. 6. b. expresses it 
So is the Civil Law 1 Domat 85. 10. Yet it is a Fraud and 
Deceit in the Seller not to discover this Defect to the Buyer 
but here Caveat emptor 1 Sal 211. Butterfield ag't Burroughs is 
not con. but rather warrants this Opinion for there the Court 
said they would intend it a secret Infirmity being after a Ver- 
dict. 

This Case of a Horse I take to be directly in Point for where 
is the difference between a Horse and a Slave as to this Matter 
If an Action will not lie in one Case neither will it in the other 
as I conceive. 

As to the Difference taken where the Deceit is sciens or not it 
has its Foundation from that Opinion in 9. H. 6. 53. b. only 
cited as I have observed no one adjudged case since to support it 
but the whole current of Authorities as well as Common Experi- 
'ence ag't it. I will agree this Difference is taken with respect 
to the Property in several Cases 1 Danv. 178. If a man sells a 
Thing knowing it to be anothers an Action will lie without 
Warranty but this Point is settled in Medina ag't Stoughton 
cited before. 

In my little Reading I could never find a Precedent of such a 
Declaration as this but the Precedents are all upon Warranties 
and I believe no such Precedent can [46] be shewn And if there 
cannot it will go a great way to prove my argum't Sr. E. Coke 
says an Argument drawn from Books of Precd'ts and Entries is 
very forcible. 

In short Sir if this Action is maintainable a great deal of 
Learning we meet with in the Books upon the subject of War- 
ranties might have been spared. It must be useless and insig- 
nificant And the rule Caveat emptor may be thrown out of 
Doors 

I expect to be told that this is arguing in Favour of Fraud 
that this makes Buying and Selling a mere cheat and learned 
Lessons we shall hear no doubt concerning the Immorality of 
the Thing. But however such kind of reasoning may serve to 



BARRADALL'S REPORTS B49 

gain popular applause and raise a High Idea of the Orator's 
Integrity it will never I am sure prevail with discerning Judges 

The Laws of Society and Civil Government are not founded 
upon the strict Rules of natural Justice public Convenience oft 
requires they sho'd be dispensed with The Punishment of Theft 
bears no Proportion to the Crime Yet it is found necessary to 
make it so severe I need not mention other Instances they 
are obvious enough 

Therefore to make specious Harangues concerning the Morality 
or Immorality of an Action that is to be determined by the Laws 
of a particular Society is arguing neither like a Lawyer or a 
Politician 

It is a Rule of all Governments I believe that the Good of the 
Majority is to be preferred Agreeable to this we have a Maxim 
in the Common Law Lex citius tolerabit privatum Damnum quam 
publicum malum Therefore the Judges in their Determinations 
do not so much regard what the Injury is to particular Persons 
but what the general convenience or Inconvenience Will be 
An Argument ab inconvenienti is very forcible in Law for the 
Rule is Omne quod est inconveniens est illicitum. 

Now Sir I conceive the Inconveniences will be many fold if it 
be established for Law that an Action will lie for Selling a 
Thing of small Value for a great Price or for selling a Commodity 
without discovering the Defects which are the Charges in this 
Dec'l It will tend to multiply suits without End Every Man 
that is displeased with his Bargain will have it to say The Thing 
is not so good or worth so much as I thought [47] And if this 
shall be a Foundation for an Action a desire of Revenge or 
Proneness to be litigious may produce a Law suit out of every 
Bargain that is made How much more reasonable is it that a 
particular person should sometimes suffer than such a general 
Inconvenience be introduced especially since the Law has put 
it in the Power of every man to secure himself against Imposi- 
tions of this kind by requiring a Warranty And if he does not 
do it he suffers through his own Folly and Negligence and the 
Law is not to be blamed If this Action will lie every Vendor of 
Slaves imported will be subject to the same It frequently 
happens that there are Distempers among their Slaves but the 
Seller does not think himself obliged to publish this to the World 
Nor is it thought criminal even to use arts to conceal it Numbers 
of these distempered slaves have been sold and the consequences 



B50 VIRGINIA COLONIAL DECISIONS 

sometimes very fatal But I never yet heard of an Action being 
brought Tho* we may expect for the future to see them very 
frequent if this is established as a Precedent. 

I will beg leave to mention a Case adjudged here last Court 
Lewis V Colston It was in Chancery Lewis brought a Bill ag't 
Golston suggesting the want of Witnesses to be relieved con- 
cerning the sale of two Slaves which he alleged the Deft, war- 
ranted to be sound but were in Truth distempered The Deft, 
denied the Warranty And tho' it was proved the slaves had 
been distempered for some Time and till just before Lewis 
bought them and that the Deft, knew it Yet the Court denied 
any Relief because the Warranty was not proved 

If Equity could not relieve in such a Case much less can an 
Action at Law be maintained I remember very well Sr. J. R. 
who was then of my side of the Question argued an Action 
would not lie without a Warranty He sayed those little arts 
which are used every day in the way of buying and selling and 
in putting off bad Commodities were no Grounds of an Action 
Nay he went so far as to say all Trade was a kind of Fraud 
How right he is in his Opinion I must submit but I am apt to 
think his Argument now will not be very consistent with his 
Doctrine then. 

There is one Thing I have omitted to mention and that is the 
Rule of the Civil Law in buying and selling In preiio emptionis & 
venditionis naturaliter licet contrahentibus se circumvenire The 
Civil Law is universally allowed to be the most equitable perfect 
Law in the World And yet this Kind of Art and Overreaching 
in buying and selling [48] is tolerated and indeed there could be 
no such Thing as buying and selling if it was not. 

I am perswaded then your Honours will not be induced from 
any plausible Pretence of the Immorality of the Thing to give 
Judgment ag't the Law I take the Law to be clear in Favour 
of the Deft, and I pray that Judgment may be staied 

Judgment was given in 
this Case for the Pit. in April 1735 

OCTOBER COURT MDCCXXXV. 

One was indicted for Stealing an Horse and found guilty 
In arrest of Judgment it was shewed that the Venire facias was 



BARRADALL'S REPORTS B51 

awarded to a wrong County and thereupon adjudged to be a 
Mistrial. 

Mr. Attorney moved the Prisoner might be remanded and a 
new Venire facias awarded He mentioned the Maxim that a 
Man should not be twice put in Danger of his Life but sayed 
here the Prisoner's Life had not been in Danger the Jury that 
tried him having no Power to Convict him. 

And he was remanded accordingly 

Cited 6 Rep. 14. Arundel's Case in Point and 4 Rep. 39. 40. 
45. a. 47. a. where an Indictment is insufficient a Man may be 
indicted again See 2 Hawk. 377. s. 10. 379. s. 15. 

4 Co. 44. 45. Vauxe's Case 3 Inst 214. 

[49] Morris ag't Chamberlayne Supersedeas 

It was suggested that the Deft (Pit. below) had delivered a 
Writ ag't one to the Plaintif 's Undersherif and ordered him 
to take no Security on Purpose to get a Judgment against the 
Sherif which he did The Undersherif was offered to prove this 

It was objected he was no good Witness being answerable to 
the now Pit. and so concerned in Interest 

The PU, offered to release him but the Court would not admit 
him a Witness. 

Note he was an Indigent Person and the Pit. did not actually 
release him only offered to do so 

Lee, Tayloe, & Randolph for admitting him but Randolph 
next morning changed his Opinion because the Witness was 
not actually released Lee and Tayloe not in Court 

If he had been actually released he ought to have been a 
Witness Vide. 

APRIL COURT MDCCXXXVi. 

A case was cited by Sr. J. Randolph of Col. Mason's where it 
was adjudged the Act of Limitation would run against a Bill of 
Exchange Contra ejus opinionem meamque quidem See Post 
Boys ag't Hoggatt. 75 

Jameson v Vawter Appeal 

Error assigned that the Defendant below offered to demur 
to the Plaintif 's Evidence being mva voce and the Court would 
not make the Plaintif join 



B52 VIRGINIA COLONIAL DECISIONS 

Per Curiam The Court should have made the Pit. join or 
have directed the Jury to find specially 

Judgment reversed 

Randolph fr Pit. denied the Authority of Middleton & Baker 
Cro. Eliz. 751. and cited 1 Inst. 72 & Try. per Pais 418 

[50] OCTOBER COURT MDCCXXXVI. 

TuTE V, Freeman 

In debitcUus assumpsit for 2d£, for Goods sold Mony paid and 
Services done. The Jury found only nine Pounds three Shill- 
ings Damage 

S. C. Jeff: 24. 

Randolph moved that no Judgment ought to be given the 
Damages being under j^lO. Sterling and so the Action will not 
lie in this Court 

Barradall e-contra Judgments are given here every Day where 
the Damages found by the Jury are under ;^10. if the Cause of 
Action laid in the Declaration is for so much and so the Practise 
was agreed to 

And the Motion overruled 

Sed vide the case of Pinchback v. Rogers October Court 1739. 
where it is adjudged contra and the case of James Bray was 
cited who was non-suited the Ballance of a Bond being under 
10;^ Sterling 

Jones ag't Langhorn 

S. C. Jeff. 37. 

In Detinue upon a special Verdict the Case was A woman 
possessed of Slaves devised to her during Life and after her 
Death to another marries and joins with her Husband in a 
Deed of Mortgage of these Slaves for 99 years the Husband dies 
this Action is brought by the Mortgagee ag't the Wife for Recov- 
ery of the Slaves. 

Barradall for the Pit. The Deed is undoubtedly void as to 
the Wife and so it is meerly the Act of the Husband The Ques- 
tion then is solely this Whether the Husband in this Case could 
dispose so as to prevent any Title or Interest from surviving 
to his Wife and I conceive clearly that he might It is agreed 
that the Slaves in this Case are to be considered as Chattels the 



BARRADALL'S REPORTS B53 

Devise to the Wife being before the Act making them a real 
estate I shall then consider the Interest accruing to the Hus- 
band in the Wife's estate which is different according to the 
[51] Nature and Quality of that Estate In her Lands &c he 
acquires a Freehold during the Coverture or an Estate for life 
if there is issue between them In Chattels real he acquires a 
Property and a Power of disposing in his Lifetime but not by 
Will If he dies first without disposing they survive to her 
If she dies first they survive to him 1 Danv. 705. 8. 1. Inst. 351 a. 
But as to Chattels personal Marriage is an absolute Gift of all 
such in Possession whether the Husband Survive or not Co. 
Lit. 351. b. And this I presume whether the Wife has an 
absolute or only a temporary or qualified Property for all the 
Right & Interest of the Wife be it more or less is by the Marriage 
transferred to the Husband and vests in him by Way of Gift 
There is no Case in Law that makes any Difference Nor is there 
any in the Reason of the Thing If the Husband has a right to the 
greater by the argument a majori ad minus he has also a right 
to the less For that Otnne Majus coniinet in se minus is a Rule 
of Law as well as an Axiom of Philosophy certainly it must 
appear absurd that the Law should give the Husband Chattels 
in which the Wife has an absolute Right and not those in which 
she has a lesser Interest The Husband's Right as to Chattels 
personal was always the same And as to Chattels real it has 
been carried further in later Times than formerly for he may 
now dispose of the Trust of a Term as was adjudged about 
Micha's 1680 in the House of Lords, in Sr. Edw'd Turner's Case 
1 Vem. 17. which is the first case of that sort the Law being 
otherwise before But since has been always held according to 
that Determination 1 Vern. 18. 2 Vem. 270. Tudor v. Samyne. 
Now- whether the Interest of the Wife be only for Life or in the 
whole term it will certainly make no Difference Whatever 
Interest she has the Husband has a power of disposing and if in 
Chattels real surely in Chattels personal too in which he acquires 
a more absolue Right by the Marriage. 

If 1 Inst 351 be objected that the Husband shall not charge 
his Wife's Chattle real tho' he may dispose but if she survive 
she shall hold it discharged That rule does not hold in Chattels 
personal as this Case is Besides all that is meant by that is that 
he shall not charge her Term with a Rent 1 Ro. Abr. 344. 5. & 
346. 2. But I question [52] Whether the Law be so at this Day 



B54 VIRGINIA COLONIAL DECISIONS 

the Husband's Power over the Wife's Term being enlarged sine 
Coke wrote in the Instance just now mentioned and it is cer- 
tainly absurd a Man should have a Power of disposing and not 
of charging Then our Case is different too Here is a Mortgage 
and the Estate and Interest become absolute in the Law for the 
Term by nonpayment of the money and only an Equity of Re- 
demption left in the Mortgagor 

Randolph & Deft. Slaves here are to be considered as 
Chattels Now the Property of a Chattle cannot be divided so as 
that Part of the Property shall vest in one and Part in another 
But when a Chattle is given to one for Life with Remainder over 
the Devisee for Life has only the Use and the Property vests in 
the Remainder man Tis upon this Distinction alone that Re- 
mainders of Chatties are allowed for if the Property vested in 
the first Devisee the Remainder over must be void because the 
Gift of a Chattel for an hour is a Gift forever That the Wife 
here having only the Use and no Property this Use vested in the 
Husband only during his Life but he had no Power of disposing 
so as to conclude the Wife after his Death tho' the Disposition 
might be good during his Life and cited 1 Inst. 351. a. where a 
difference is taken between a Property and a bare Possession as 
Where a Woman has Goods as Bailee or Ex'trix this bare Posses- 
sion is not given to the Husband by the Marriage He also cited 
Mor. 522. Thomson v. Butler where the Husband's Release of 
the Wife's Annuity was adjudged no Bar after his Death, And 
mentioned the Case of Brown v. Willis in April 1731. in this 
Court which he said was in Point He sayed it would be a hard 
Case upon Women especially Widows marrying second Hus- 
bands if they happen to survive That it would be inconvenient 
too since the Slaves might be taken in Ex' on for the Husband's 
Debts or sold by him to the Prejudice of those in Remainder 
To which it was replied That it was true in the Language of our 
Books by the Devise of a Chattel for Life with Remainder over 
the first Devisee has [53] only the Use and the Property vests 
in Rem'rman That this this [sic] Distinction was kept up 
upon the Groimd of that Old Rule of Law The Gift of 
a Chattel for an Hour is a Gift forever but in Effect the 
first Devisee has a Property during Life having all the 
Marks of Ownership except that of selling absolutely Whatever 
profits can be made are his he may maintain Trover and even 
dispose during Life and certainly this is something more 



BARRADALL'S REPORTS B55 

than a bare Possession which is the case 1 Inst. 351. and so 
nothing Uke this. 

The Use here is coupled with an Interest and wherever there 
is an Interest there must be some Degree of Property for what 
is Property but a Power of using and disposing which a Devisee 
of a Chattle for Life has during a Life Certainly then such 
Devisee has a qualified Property Nobody will dispute but he 
may sell during Life Marriage is an Alienation a Gift in Law 
equivalent to any Alienation in Fact It is agreed the Slaves here 
vested in the Husband during Life if they vested at all they 
must for the whole Interest the Wife had it being all transferred 
by the Marriage 

It is absurd to talk of the Hardships upon Women unless it 
be a Hardship that any Thing should vest in the Husband by 
the Marriage Is it harder that a lesser Interest should vest in the 
Husband by the Marriage than a greater The Argument from 
Inconvenience is full as ridiculous since since Chattels so taken 
may as well be taken for the Debts of the Wife as for the Debts 
of the Husband or sold by her in prejudice of the Remainderman 
It may be an Argum't against allowing such Devises at all but 
is none ag*t the Husband's Right in such Case. 

Judgment for the Deft, per totatn curiam prater Lightfoot &. 
Tayloe. 

A like Case between Clements & Walker was argued in April 
1739. And the same Judgment given fr Randolph, Grymes, 
Carter Diggs & the Governor. Custis & Robinson con. 

Stretton v. Martin 

Debt on Bond with Condition to pay a certain sum so soon 
as a Release should be procured from the owners of the Ship 
Prince Eugene of all their Right to said Ship and [54] delivered 
to John Willis Agent of the ObUgor in London Deft, pleaded the 
Pit. did not procure such Release and deliver the same to Willis 
The Pit. replied that he did. 

Upon Trial of the Issue joined the Pit. produced a Certificate 
under the hand of Willis that such Release was delivered to him 
which Certificate was proved to be signed by Willis. 

It was objected that this was no Evidence If WilHs was present 
in Court he must give his Evidence upon oath Therefore at 
least he ought to have made an Affidavit of the Truth of this 



B56 VIRGINIA COLONIAL DECISIONS 

Certificate and that sworn before the Lord Mayor would be 
good Evidence by the late Act of Parliament. But this Certifi- 
cate was no more than an assertion without Oath which was 
never allowed as Evidence in any Court E contra. Tho' the 
general Rule of Law be that every Witness must testifie upon 
Oath the Case here is very diflEerent Willis is appointed the 
Deft's agent for a particular Purpose Now if the Defendant 
himself had acknowledged under his Hand to have received 
such Release it would certainly be good Evidence. By the Same 
Rule this Certificate is Evidence For Willis is in the Place of the 
Defendant and the Defendant is bound by his Act. 

To which it wets replied We must be in an unhappy Circum- 
stance if the Certificate of our Agents in England without oath 
shall be Evidence of any Matter of Fact that may aflEect our 
Property. It is a Case of general Concern and no body knows 
whose Turn it may be next. It is true where a man appoints 
an Attorney or Agent for a particular Purpose he is boimd by 
his Act. But that is not the Case. Willis here was to be purely 
passive to receive the Release if he he has done so no doubt we 
are concluded but this we say ought to be made appear by 
something more than a bare say so. If the Certificate be true 
Wills may easily make an Affidavit and there is no Reason in 
this Case his Word should be taken. 

The Court was unanimously of opinion that this Certificate 
ought not to be admitted as Evidence. And so the Jury found 
for the Defendant. The Plaintiff tendered a Bill of Exceptions 
(which was sealed in Court) and appealed. 

[55] Taylor ag*t Graves. 

S. C. JeflE. 40. 

In Detinue a Case was agreed vizt. R. P. poss*ed of the Slaves 
in Question by his Will dated in 1712. devises to his daughter 
Mary the Use Labour and Service of them during her Life and 
after her Decease the said Slaves and their Increase to fall to 
her Heirs of her Body lawfully begotten forever. 

Mary had issue a Daughter living at the Time of the Devise 
and the Death of the Testator but died before the Mother who 
is also dead and the Pit. claims as Heir to the Testator. 

Mr. Atty. Gen. fr Ptt. By the Act of 1705. Slaves are 
made a real estate tho' the Law is now altered by the Act of 



BARRADALL'S REPORTS B57 

1727 with respect to Gifts and Devises of Slaves that they can 
only be given and devised as Chattels personal. There is how- 
ever a Proviso in this last Act that where Slaves have been 
before given for Life and the Remainder thereupon limited to 
another that such Remainders shall be good in Law to transfer 
the absolute Property to the Remainder man. 

The testator here has given only an Estate for Life to his 
Daughter with a Contingent Remainder to the Heirs of her 
Body and there being «uch when the Contingency happened 
viz. at her Death the Remainder is void and the Pit. as Heir 
at Law to the Testator is entitled to these Slaves 

Barradall fr Deft I conceive that Slaves in this Case are to 
be considered meerly as Chattels, but before I speak to that I 
shall shew that taking them to be real estate the Pit. can have 
no Title If this was a Devise of Lands Mary would take an 
Estate tail by the Words of this Will and not an Estate for 
Life with a Contingent Remainder to the Heirs of her Body 
It is a Rule laid down in Shelley's Case 1 Rep. 104. b. 1 Inst. 22. 
b. that where the Ancestor takes an Estate of Freehold a Limita- 
tion to his Right Heir or Heirs of his Body are Words of Limita- 
tion and not of Purchase And so it was adjudged 1 Vent. 214. 225. 
King & Melling and Fitzg. 7. Shaw & Weigh There is how- 
ever some exceptions to this General Rule in the Case of Wills 
where the Testator's Intention is apparent to lodge the Inherit- 
ance in the Issue as Lodington & Kyme and Backhouse & Wills 
cited Fitzg. 22. Shaw v. Weigh. See Raymond's Argimient in 
that case In Wild's Case 6 Co. 17. A Difference is taken 
where the Ancestor has Issue living at the Time of the Devise 
and where not that in the first Case the Issue shall take by 
Way of Remainder and so Hale's Opinion seems to be 1 Vent. 
229. Upon the authority of that Case. But I take the Law to 
be otherwise settled at this Day Nor is there any Authority to 
support that Opinion since Wild's Case which too was against 
the Opinion of two Judges I conceive then by this Devise 
Mary had an Estate tail and then the absolute Property vested 
in Her For Slaves could never be entailed before the [56] Act of 
1727. And under that Act only when annexed to Lands The 
constant Resolutions of this Court have been so 

On the other side if Heirs of the Body here are taken as Words 
of Purchase and Slaves are to be considered as real Estate then 
the Remainder being contingent and void in Event by Mary's 



B58 VIRGINIA COLONIAL DECISIONv^ 

leaving no Issue the Pit. is certainly well entitled. But Slaves 
in this Case are no more than Chattels. It is true the Act of 
1705 makes Slaves a real Estate to some Purposes but not to 
all. They are to descend to the Heir if a Man dies intestate 
and a Woman is to be endowed of them But there is an express 
Proviso that Sales and Alienations of them may be made in the 
same Manner as before making the Act. There was some 
Difference of Opinion in the Construction of this Act which 
occasioned the Act of 1727. not to alter the first Act but to 
explain and amend it. And where a subsequent Act explains a 
former it cannot be said to alter it but only points out the true 
Construction. The words of the last Act respecting the present 
question are worthy observation. It recites the Difference of 
Opinion in constructing the first Act and then Enacts **That 
the said Act shall hereafter be construed and the true Intent 
and Meaning is hereby declared to be" No other Construction 
then can now be made than what is hereby declared to be the 
true Construction. 

It is not at all material whether the Case happened before or 
since the Act of 1727. The Law was always the same This 
last Act does not alter the first as I sayed It only explains 
and points out the true Construction And the Words of the 
last Act are mighty plain (and so indeed I think are the Words 
of the first) that in Sales Gifts and Devises Slaves are to 
be regarded merely as Chatties ** A Sale Gift or Devise 
is to transfer the absolute Property as if such Slaves were a 

Chattle** 

Taking then Slaves to be Chatties the Plaintif can have no 
Kind of Pretence. It will not be denied but that a Chattle 
may be given for Life with Remainder over It is not material 
whether the Chattle itself be given or only the Use for Life 
The Law makes the same Construction in both Cases viz. that 
the first Devisee has only the Use and the absolute Property 
vests in the Remainder man. The use only is given by his Will 
to Mary for Life and after her Death the Slaves are to fall to the 
Heirs of her Body If Heirs of the Body here are taken as 
Words of Purchase as Descriptio vel designatio persotUB the 
Daughter of Mary took the Remainder as a Person well described 
and then the absolute Property vested in her and the Slaves 
must go to her Heirs and not to the Testator's. If they are not 
Words of Purchase [57] but Words of Limitation then Mary 



BARRADALL'S REPORTS B59 

has an Estate tail given to her and such a Devise will pass the 
absolute Property of a Chattle 

But supposing the Remainder void by Mary's leaving no 
Issue at her Death In that Case I conceive the absolute Prop- 
erty vested in Mary For I take the Law to be very clear that 
if a Chattle is given to One for Life or the Use for Life (for there 
is no Difference) and no Remainder is Umited or a Remainder 
that is void either in its Creation or in Event the absolute 
Property vests in the Devisee for Life and can never resort back 
again to the Representative of the Testator, Qucsre de hoc. 

It has been endeavoured in this Case to compare Slaves to 
Chattels real and many cases there are of Devises of this sort 
some of which have been cited To what Purpose I am still to 
learn Cotton & Heath 1 Ro. Abrig. 612. Devise of a Term 
for Life and after to the eldest issue male Adjudged the Issue 
male shall have it as an Executory Devise tho* none in being 
at the Time of the Devise which is stronger than our Case 
there being here an Heir of the Body living at the Time of the 
Devise. 

Peacock & Spooner 2 Vem. 195. is exactly this Case only 
stronger as it was in the Case of a Deed A Term was assigned 
in Trust to permit Husband and Wife and the Survivor to 
receive the Profits during their Lives and after their Deaths to 
the Use of the Heirs of the Body of the Wife Here the Heirs 
of the Body took by Purchase and as a Person well described 
\sic\. 

Id. 362. Daffom & Goodman S. P. adjudged But Webb & 
Webb Id, 668. the same point coming in Question adjudged the 
Devisee for Life had the whole Term and that Case is the same 
with Ours 

It is not material to the Plaintif whether the Devisee for Life 
or the Heir of the Body has the Right for in either Case he has 
none and I cannot imagine Upon what Rule of Law he can 
pretend to any 

I shall only observe further that in all the Cases upon this 
subject the Question is between the Heir of the Body and the 
Executor of the first Devisee who shall have the Remainder 
But there is no Instance that ever the Exor or Heir of the Testa- 
tor set up a Title to such Remainder 

Judgment fr Deft, per totam curiam but upon what Point I 
could not learn 



B60 VIRGINIA COLONIAL DECISIONS 

Hill ag't Hill's Executors 

This was a Bill in Chancery brought against the Heir to have 
Possession of the Land deUvered to the Ex'tors for executing 
certain Trusts pursuant to the Testator's Will The Will had 
been proved in the County Court and the Heir at Law summoned 
according [58] to the Act of Assembly But now it was insisted 
that a Court of Equity would never estabHsh a Will against an 
Heir without a Tryal at Law 8 Mod. 90. 

And per totam curiam prater Tayloe a Trial at Law was 
directed. 

APRIL COURT MDCCXXXVII. 

Bernard v. Stonehouse. 

In Ejectment the Term being expired the Question was whether 
the Pit. might proceed for Damages 

The Action of Ejectione Firmoe is no more than an Action of 
Trespass in its Nature And was and still is the proper Remedy 
for a Termor for years who is ejected before his Term ended 
either by the Lessor or a Stranger In which Action the Pit. 
is to recover Damages for the Trespass and Injury done him 
in ejecting him and his Term if there be any to come The 
Declaration in this Action proves the Nature of it It sets 
forth a Lease made to the Pit. by virtue of which he entered 
And that the Deft, with force and Arms ejected him to his Dam- 
age There is not a Word of recovering the Possession in the 
Declaration So that as in all other Actions of Trespass Dam- 
ages are the principal Thing to be recovered And the Term 
only an Incident if there be any to come Di. 117. Cro. El. 854. 
Pahn. 337. 9 Co. 79. 80. Hale's F. N. B. 505. 506. 

If the Pit. enter pending the suit this shall not abate the 
Action which proves the Term or Possession are not the prin- 
cipal Thing to be recovered but the Damages F. N. B. supra in 
the Notes. 

The Writ of Quare ejecit infra terminunt is not unlike this 
being the proper Remedy for a Termor for Years where his 
Lessor ousts him and enfeoffs another. In which Case he 
cannot have an Ejectione firnuB against the Feoffee because he 



BARRADALL'S REPORTS B61 

did not oust him but the Law gives him this Writ In which 
as in the other he shall recover his Term and Damages And 
in this Suit if the Term expire pending the Writ the Suit shall 
not abate F. N. B. 457. Thus it is clear that where there is a 
real Lease and Ejectm't the Expiration of the Term will not 
hinder the Suit from proceeding. Indeed it would be absurd 
and unjust that it should because an injury is done in ejecting 
a Man for which he ought to have Recompense and this is the 
Remedy the Law has appointed. 

But it seems to be agreed that in Case of a real Lease the 
Law is so The Objection here is that Ejectm'ts as now 
[59] practised are all a Fiction, a new Invention to try Titles 
and there is no real Trespass or Ejectm't in the Case And there- 
fore the same Rules & Reason cannot nor ought to govern them 
as when there are real Leases 

I admit that most Ejectm'ts now a days are brought to try 
Titles and that very often there is no real Lease But it is a 
mistake to say there never is for there is sometimes a Necessity 
where there is no one upon the Land And no doubt it some- 
times happens that a real Termor is ejected and then this is 
still the only Remedy It is true that the Lease the Entry and 
the Ouster in these Actions that are brought to try Titles have 
often no real Existence but are mere Fictions but yet the Con- 
fession of them upon Record which the Deft, by Rule of Court 
is compelled to, makes them have all the Operation and Effect 
of Realities and the Deft, shall never be admitted to aver against 
his own Confession Upon Record that there is no real Lease 
whatever the Truth may be he is estopped from saying it 
Indeed the Confession of the Lease Entry and Ouster are of no 
Use if the Deft, may afterwards deny those Facts he has con- 
fessed 

This Practice then as I conceive has not at all altered the 
Nature of the Action of Ejectione firntcs but the Declaration the 
Judgment and other Process is the same as if a real Lease Entry 
and Ouster was for long before this Practice was introduced 
it was usual to try Titles in this Action of Ejectione firmce. 

In ancient Time the usual way of trying Titles and recovering 
Possession was by real Action The Process of which every body 
knows is very tedious, and difficult and besides a greater In- 
convenience attended and that was the Peril of being concluded 



B62 VIRGINIA COLONIAL DECISIONS 

by a single verdict For if a verdict was found against the De- 
mandant he was forever barred to bring any other Action unless 
of a higher nature This it was gave Rise to. the Invention of 
trying Titles in this Action of Ejectione firmce where the Process 
is speedy and easy and a Verdict is no Barr or Conclusion of the 
Right but the Pit. or Deft, may bring another Ejectment 
if he will In the time of Lord Dier who was made C. J. 1. . Eliz. 
and hved to the 24, This was the Method of Practice in the King's 
Bench where indeed no real Action can be brought. But then 
there was always a real Lease sealed and actual Entry and Ouster 
as is still the Case sometimes. 

Lord Dier observing that by this Practice most Men chose to 
have their Titles tried in the King's Bench which lessened the 
Business of the Common Pleas he first introduced this Method 
of obUging the Deft, to confess the Lease Entry and Ouster 
and established the Practice upon the Foot it is now that upon 
delivering a Declaration to the Tenant in Possession if he would 
not appear and confess the Lease &c. Judgment should be 
entered against him by Default And this Method being found 
easier than the old way of actually sealing Leases soon became 
the Practice of both Courts and have continued so ever since. 
[60] No Man will say that the Nature of this Action is at all altered 
or changed where a real Lease is sealed altho' the Title do come 
in Question Neither can it then upon these feigned Leases since 
by the Confession they have all the Effect of real ones. 

It is common in Actions of Trespass for the Title of Lands 
to come in Question And they are often brought for no other 
end yet the nature of the Action is still the same and so is the 
Ejectment. 

In 9 Co. 77. Peytoe's Case it is adjudged that Accord and 
Satisfaction are a good Plea in Ejectment and the Reason given 
is because Damages are the principal Thing recovered. Those 
who argued against the Opinion agreed that if the Term expired 
pending the Writ it would be a good Plea because then only 
Damages could be recovered. 

And I must beg leave to add the Authority of Sr. E. Coke in his 
1 Inst, who expressly says that tho' the Term incur pending the 
Suit the Action shall not abate He takes a Difference where Part 
of the Action determines by Act in Law and the like Action 
remains for the Residue and where the like Action does not re- 



BARRADALL'S REPORTS B63 

main for the Residue. In the last Case he says the Suit shall 
abate but not in the other and this he illustrates by two examples 
1. Of an Action of Waste brought aganist Tenant for another's 
Life and pending the Writ Cestui que vie dies yet the Action 
shall go on for Damages and so in Ejectment if the Term incur 
Yet the Action shaU proceed for Damages because in both 
Cases an Action will lie for Damages only And these Cases are 
exactly parallel for in the first the Action of Waste the proper 
and regular Judgment is to recover the Place wasted and Damages 
but Judgment cannot be for the Place wasted after the Death of 
Cestui que Vie when the Interest of the Tenant in the Land is 
determined Yet it shall go on far Damages And so in Ejectment 
tho' the Term be ended and we cannot recover that yet we may 
proceed for Damages. I must observe that this Book of Sr. 
Edward Coke's was wrote long after this new Method of Practice 
as it is called was introduced And so were most of the Cases 
cited 3 Mod. 249. is a more Modern Authority And Mr. Danvers 
who wrote much later has the same Point in his Abridgm't 2 
Part 757. In the Case of Shaw & Weigh Fitzgibb. 17. which 
happened in the 1. of the present King Lord Raymond who 
dehvers the Opinion of the Court says that the Term being 
expired the Pit. cannot have Judgment for the Possession only 
for the Damages which is a plain and very recent authority 
that the Action does not abate by the incurring of the 
Term 

[61] It has indeed been offered to account for the Opinion 
by taking a Difference where there is a Verdict and where there 
is none and yet in the Case of Shaw and Weigh there was a 
Verdict which there is not in this Case But where is the Sense 
or Reason of this Difference. The Argument is that by the Ex- 
piration of the Term the foundation of the Action is destroyed 
the Lease is expired and it is absurd there should be a Judgment 
when it is known the Possessoin is the Thing intended to be 
recovered. Is not this Argument equally strong whether there 
be a Verdict or not If the Pit's right of Action is really deter- 
mined by the Expiration of the Lease what good Reason can 
be given why he should recover after Verdict more than before. 
In other Cases it is not so but where the Right of Action de- 
termined a Verdict will not help the Pit. Indeed it would be 
absurd that it should And therefore the granting that after a 



B64 VIRGINIA COLONIAL DECISIONS 

Verdict the Action may proceed does allow that there is a Right 
of Action in the Pit. tho. the Term be expired. 

This Difference as it has no Foundation in Reason so neither 
is there any Authority for it. But there are Authority s ex- 
pressly against it. It may be fashionable for any thing I know 
to despise my Lord Coke and his Authority which is express 
that you may proceed to recover the Damages tho* the Term 
be expired. Now how can you proceed to recover Damages if 
if they be given before. This cannot be sayed with any Propriety 
and Coke was a very exact writer — 3 Mod. 249. is said to be 
the Saying of Council. But it is not denied on the other Side 
and so it is of some Weight Danvers a most accurate Writer and 
good Lawyer says the Same and lastly Lord Raymond whose 
Authority alone is sufficient. 

The Cases on the other Side cited out of Salk are nothing to 
the Purpose. The Court refused to enlarge the Term but they 
did not say they could not proceed for Damages. But say they 
the Motion would be useless if the Pit. might proceed for Damages 
That is a great Mistake. Possession is certainly some advantage. 
In England we know it is a very great one. The Expence and 
Delay attending Law Suits there is a Sufficient Reason for the 
Pit. to move to enlarge the Term to prevent the Charge and 
Delay of another Suit which he must be at to recover the Posses- 
sion Death of Lessor does not abate suit tho' it is equally well 
known to be his suit and not the Lessee's as well as that the 
Term is a Fiction. 

Sal. 254. 

No reason that it should abate nor no Inconvenience that it 
should not. If the Law was so the late Acts to prevent Suits 
abating in other Cases would have taken in this 

Upon this very clear Point the Court at first was against me but 
upon hearing a second argumt. 

Judgment was given that the Plaintif might proceed for 
Damages by the Opinion of Lee, Tayloe, Randolph, Carter, 
Grymes, Robinson, Byrd, the Governor Lightfoot, Custis, Diggs 
con. Blair dubitante. 

[62] Parsons ag't Lee Sherif of Stafford. Appeal. 

s. c. Jeff 49. 
Debt for Escape the Deft, pleads Nil debet and the Jury finds 
a Special Verdict That (Scale) the Prisoner escaped thro' the 



BARRADALL'S REPORTS B65 

Insufficiency of the Prison and not any Neglect of the Sherif 
this was in August and in Feb. the Sherif obtained an Escape 
Warrant and retook him before the Issue joined *and he was in 
Prison at the finding of the Verdict and it is found the Prisoner 
appeared publickly at K. G. Court house where he lived 2 or 3 
Court Days after the Escape and whether this Retaking shall 
excuse the Escape is the Question. 

It is sayed in some Books that the retaking must be before 
the Action brought or it shall not excuse. But other Books 
are that a retaking before Issue joined shall excuse Wi. 35. 
And seems not denied Cro. Ja. 657. And this Opinion seems 
most reasonable for it will be hard upon the Sherif especially in 
this Country where a man escapes thro' the Insufficiency of the 
Prison as this Case is and against the Will of the Sherif that he 
must be liable if an Action is immediately brought as it may be 
the same Day tho* he afterwards retake the Prisoner upon fresh 
suit. 

But it will be sayed fresh suit was not made in this Case. 
The Sherif did not take out an Escape Warrant till 6 months 
after But what is the Escape Warrant to the Purpose the Sherif 
might make fresh suit without such Warrant and take him in 
any other County by the Common Law and the Escape Warrant 
which is given here by 11 Geo. 1. is only in aid of the Sherif 
and Pit. Therefore it is no Proof that he did not make fresh 
suit because he did not sue out an Escape Warrant sooner. 
Neither is there any Thing in that that the Prisoner appeared 
publickly at the Court house of another County the Sherif 
might be pursuing him elsewhere and is not to be presumed 
knowing of what passed in another County. As to the Distance 
of time between the Escape and Retaking there is nothing in 
that he might be taken a Year after the Escape God b. 177. 

As it does not appear then that the Sherif did not make fresh 
suit it ought to be presumed he did For as Escapes are so penal 
to Sherifs the Judges ough to make such favourable Construc- 
tion as the Law will permit in Favour of Sherifs who are the 
Officers and Ministers of Justice and the Judges will never judge 
one to make an Escape by any strict Construction 3 Rep. 44. 
Boyton's Case. 

And these are certainly very hard Actions upon the Sherif 
They have always been thought so in this Country and I am 
mistaken if Sherifs have not been excused where the Escape 



B66 VIRGINIA COLONIAL DECISIONS 

was thro' the Insufficiency of the Prison without the Sheriffs 
fault without any Retaking. Much more here then. 
[63] The Pit. not injured having the Effect of her Execution 
viz. the Body of the Debtor. Most reasonable everyone should 
bear his own Burthen. 

In this case it was adjudged the Retaking would not excuse 
the Sherif and the County Court's Judgment was reversed. 

The King ag't Harrison. 

s. C. Jeff 60. 

The Deft, was presented by the Grand jury for erecting Gates 
in the King's Highway. The Deft, pleaded a Licence from 
the County Court To which Mr. Attorney demurred And upon 
Argument insisted that all Gates erected in the Highway are 
Nuisances at the Common Law and that the County Cotirts 
here had not Power to give Licence to erect a Nuisance he cited 
Cro. Car. 184 See also 1 Jo. 22 L 1 Bui. 203. 2 Ro. A. 137. & 
Hawk. P. C. 199. 9. 212. 50. For the Deft, it was urged there 
was a great Difference between England and this Country as to 
this matter Travellers here ^are not so numerous nor Wheele 
Carriages very common So that the Inconvenience could be but 
small And on the other hand considering the manner of fencing 
here a small piece of land would be rendered useless if Gates 
were not allowed. It was further urged that the Act of the 4. 
Ann. cap. 39. did seem to give the County Courts a kind of 
absolute Power with respect to Roads. 

The Court was unanimously of Opinion that the Plea was good. 

OCTOBER COURT MDCCXXXVII. 

Major ag't Dudley in Cane, 

S. C. Jeff. 61. 

A Bill was brought against the Deft, who had married an 
Executrix that was dead for an Account of the Testator's Estate 
come to his hands. The Deft, about twenty years before had 
exhibited in the County Court on Account of Debts and Dis- 
bursments paid out of the Testator's Estate to which he made 
Oath And the same was received and recorded without any 
Examination into the Truth of those Payments As the children 
of the Testator came of Age they severally petitioned the County 



BARRADALL'S REPORTS B67 

Court and some of them brought Suit to have their Share of the 
Father's Estate. Upon which Petitions and Suits several 
Orders were made for Persons to settle on Account of the Tes- 
tator's Estate And in all those Settlements the Account first 
exhibited by the Deft, was allowed [64] as a good Discharge for 
so much In the present Case it was referred to Persons to settle 
an account of the Estate who having some Doubt about allowing 
this Account they prayed the Opinion and Direction of the Court 
The Court was unanimously of Opinion for allowing the 
Account in Regard to the Distance of Time tho' the Deft, had 
not one Voucher to produce And as to the Length of Time 
The Transaction was of little more than twenty Years standing 
and the suit had been depending ten Years. 

Haywood & aV ag't Chrisman & al in Cane'. 

S. C. JefE. 62. 

Henry Haywood possessed of divers Slaves and other Estate 
by his Will inter al* devised the Guard'nsp of his Children to 
his Wife and left five Slaves to work and maintain his Wife 
and Children besides the profits of the Estate he had left them 
and died without making any other Disposition of these five 
Slaves leaving Henry his eldest son who dying before his Mother 
devised the Slaves to the Defts. who after the Mother's Death 
recovered them in an Action at Law and now a Bill is brought 
by the younger Children of the first Testator for a share of the 
Value of the said Slaves. 

For the E^ts. it was insisted that by the Act of the 4. Ann. 
23. they were intitled to a Share of the Value their Father being 
intestate as to these Slaves. 

For the Defts. it was said that there was an Exception in the 
act of the Widow's Dower the Value of which was not to be 
divided among the younger Children And that these Slaves 
were intended by the Testator in Lieu of the Widow's Dower 
and therefore not to be divided. And of that Opinion were the 
whole Cotirt. 



B68 VIRGINIA COLONIAL DECISIONS 

APRIL COURT MDCCXXXVIII. 

Godwins ag*t Kinchen*s Ex*rs in Cane. 

Matthew Kinchen by his Will after several particular Legacies 
thus ** and all the rest of my Estate Goods and Chattels whatso- 
ever I give to my Brother W'm Kinchen and my three Sisters 
Eliza Martha and Patience and James Godwin's three children 
James Martha and Matthew " The Question was what Share of 
the Residue Godwin's Children (the Pits.) were intitled to 
They claiming each a seventh Part and the Defts. insisting they 
were intitled to no more than a fifth among them. 
[65] Godwin's Children were bom of a Sister of the Testator's 
who was dead and the Writer of the Will proved that after the 
Tes'tor had directed several particular Legacies he ask'd him 
how he would dispose of the Rest of his Estate Upon which he 
answered I give it to my Brother and Sisters And after some 
Pause added and James Godwin's 3 little Children I can't abide 
to leave them out put them in for a Share Godwin having four 
Children then living the Writer ask'd which 3 Upon which the 
Tes'tor named them (The other Child was so ill his Life was 
despared of) There were other Witnesses in the Room w^ho 
heard the Tes'tor say Put (Godwin's Children in for a Share or 
to that Purpose. 

Needier for the Pits. This is a joint Devise And so all the 
Legatees equally interested It differs from the Case of Tucker 
V Tucker's Ex'ors (post page) Here are not the Words equally 
divided and the Children here are described by .their names 
which they were not in that Case Where the Law determines 
the Force and Operation of a Devise the Tes'tor's Intention is 
not to be enquired into That is only to be recurred to where the 
Words are ambiguous. Here the Words are very plain to make 
it a joint Devise and Construction ought to be made upon the 
Words and the Legal Intent of the Tes'tor as appears by Cox & 
Quantock 1 Ch. Ca. 238. where it is say'd that when the Intention 
is secret and not declared the secret Intent must give way to the 
Legal Intent There is a Difference where the Children are not 
described by their names and where they are In the first Case 
they must take collectively as in Tucker and Tucker's Case but 
not in the second As to the Proof in the Case the Witnesses vary 
I admit that parol Proof is sometimes allowed to explain a 



BARRADALUS REPORTS B69 

Tes'tor's Meaning But that is only where it is to corroborate 
and strengthen the Legal meaning and Intention not where it 
is to oust it. 

Barradall for the Defts. Upon the Words of this Will it is 
plain enough that Godwin's Children are to be taken Collec- 
tively as one Person and were so intended by the Tes'tor But 
when the Proof and other Circumstances in this Case are con- 
sidered I think the Point is put beyond all Doubt or Question. 
It is argued on the other Side that this is a Joint Devise and that 
therefore all must take equally. The Question here is not whether 
the Legatees take jointly or severally but what Proportion the 
Tes'tor intended to each To talk then of a joint Devise may 
serve to amuse but proves nothing to the Point in Question I 
own this Argument is quite unintelligible to me. If by being a 
Joint Devise is meant that the Legatees take as Joint tenants 
and consequently that the Right of Survivorship will take place 
between them I deny that it is a Joint Devise in that Sense for 
there can be no Survivorship among these Legatees as is proved 
by the Case of Cox & Quantock cited on the other side If God- 
win's Children had not been named it is agreed they must have 
taken collectively as one Person [66] I ask then whether this 
Devise might not as well be called Joint in that case as it is now. 
The naming of the Children can certainly make no Difference. It 
is a very strange and new Doctrine to say that the Tes'tor's 
Intention is only to be regarded Where the Words of a Will are 
doubtful The numberless Cases and perpetual Controversies 
there are upon the Subject of Devises are sufficient Confutation 
of such an assertion. Do not our Books tell us that the Intention 
of a Testator is the Pole star to direct us to find out his Meaning 
But it is sayed this Intention when secret is not to prevail 
against the express legal Intent. I do not well apprehend the 
Force of this Distinction nor remember to have seen it anywhere 
but in the Book cited on the other side And I must observe that 
it is only a Remark of the Reporter and the Case itself is quite 
against his Argument. The Case is Cox & Quantock supra 
Two were made Executors and the Residue devised to them 
One died his Adm'r sued for a Moiety of the Surplus and decreed 
for him for this Reason That the Tes'tor intended an equal 
benefit to both. This is sayed to be to the Dissatisfaction of the 
Bar And the Reporter adds his Reason which is so much relied 
on in this Case. Tho' all the Authorities since agree with the 



B70 VIRGINIA COLONIAL DECISIONS 

Resolution in the Case and are against the Reporter's Opinion 
vide. Is there any Thing more frequent in our Books than to 
see the Intention of a Tes'tor prevail against ag*t [sic] the legal 
Sense and Import of Words Indeed if the Intention be secret 
as Mr. Needier States the Proposition I don't know how it should 
prevail An Intention must be more or less apparent or it 
cannot be known at all But if by a secret Intention is meant 
an hidden or imphed one in Contra-distinction to that which is 
expressed Then the Distinction is not true nor has any Fotmda- 
tion in Reason or Authority. 

I take it then the Testator's Intention is to be sought after 
in this Case which if it be not sufficiently evident upon the Face 
of the Will itself I think is put beyond all Controversie upon the 
Proof and Circumstances 

But I must first clear the Proof from some Objections It is 
sayed the Witnesses vary There is no Kind of Variance [67] 
except that one heard more than the other The Writer of the 
Will who was nearest the Testator and most attentive heard 
more than they who were at a Distance in the Room It is also 
objected ag't the Proof in general that it ought not to be re- 
garded at all being to oust the legal Intent And that Parol Proof 
is never admitted but to corroborate and support the Legal 
Intent This is another Distinction that I must own I am a 
stranger to Neither can I agree that there is any express Legal 
Intent in this Case It must be owned to be in some sort doubtful 
upon the Words of the Will whether the Tes'tor intended the 
Pits, should have each of them a Share or only one Share among 
them And that Parol Proof and Collateral Circumstances are 
admitted to explain a Tes'tor's Intent that appears doubtful 
surely will not be denied. There being so many Cases express 
in Point 2 Vem.99. 252. 506. 517. 593. 648. 673. & 675. It is for this 
Purpose we offer our Proof and surely it must have its Weight 
and if it has it can hardly remain a Doubt with any One that 
the Tes'tor intended no more than one Share to the Pits. 

I cannot imagine why the naming the Children by their names 
should make any Difference as is much insisted upon tho* with- 
out any Reason assigned that I have heard But this was necessary 
to avoid the Force of the Determination in Tucker & Tucker's 
case where indeed the Children are not particularly named But 
admitting such a Distinction ought to prevail in General Cases 
Here it can avail nothing because it appears the Occasion of 



BARRADALL'S REPORTS B71 

naming them was accidental and because Godwin had four chil- 
dren. The Children of Godwin are not so nearlyrelated as the 
other Legatees being only a Sister's Children It is a natural 
Presumption that men have the greatest affection to their 
nearest Relations If the Mother of these Children had been 
alive can it be supposed the Tes'tor would have made so great 
a Difference as to give three times as much to her as to the rest 
of his Brothers and Sisters Much less Reason is there to suppose 
he could intend so much for her children for whom he mu^t be 
presumed to have a less Degree of Regard and Affection To put 
them in the Place of the Mother was certainly all he intended 
and to Consider them as her Representative. It appears too in 
the Proof these Children were little in his thoughts. His manner 
of taking Notice of them is a very strong circumstance to prove 
he did not intend to so great an Advancement and Provision 
so much beyond what he did for his own Brothers and Sisters. 

Decreed that Pits, were intitled only to one Fifth among them 
by the opinion of Lee, Tayloe, Lightfoot, Custis, Grymes & B3rrd 
Carter & Diggs con. Robinson thought the Surplus ought to be 
divided into Thirds viz. the Brother to have one Third the 
Sisters another and Godwin's Children another. April 1738. 

♦Vide 2 Will'ms 383. Blackler v. Webb. 

[68] Andrew Giles & Mary his Wife & Mary Mallicote Pits. 

S C. Jeff. 62. 

Morey Mallicote Deft. In Detinue upon a Special Verdict. 
The Pits. Father Thomas Malhcote by his Will devised ** to his 
son John Quashey a Negro Man to his son Thomas the Child 
his Negro Woman Betty then went with and Tomboy a negro 
Man " and gives Slaves to his other Children and declares his 
Will ** That his Wife should have the Work of his Sons Negroes 
till they came of age And if either of his Children should die 
without Heirs of their body lawfully begotten Then that their 
Part should be equally divided between the Survivors" And 
gives Negro Betty to his Wife during Life and after her Death 
to be divided with her Increase among his children. The Testa- 
tor's Sons John and Thomas are dead and would not be 21 if 
now living The Slaves in Question are Quashey and Tomboy 
Specifically devised to John and Thomas and Quashey a Boy 
the Child Betty went with at the making of the Will but not born 



B72 VIRGINIA COLONIAL DECISIONS 

till after the Testator's Death The Pit. Mary the Wife of Giles 
is the Testator's Wife named in the Will (tho' not so found in the 
Verdict) And the Plaintif Mallicote is one of the Testator's 
Daughters The Deft, is the Testator's eldest Son and Heir 
and Heir to his Brothers John and Thomas and is more than 21 
years old. 

There are but 2 Questions in this Case upon the merits 

1. First. Whether the Testator's Wife has a Right to keep 
the Slaves devised to John and Thomas till the time they would 
have been 21. Or whether her Interest determined at their 
Deaths 

2. Whether the Devise to Thomas of the Child Betty went 
with be good tho' the Child was not bom till after the Testator's 
Death And let these Points be determined either Way there will 
remain a Necessity to make a 3. question Viz. Whether the Pits, 
can join in this Action. 

The Case as to the first Point is briefly this A man devises 
Slaves to his Children and Wills that his Wife should have the 
Work of them till his Children come of age The Children die 
before they come of age The Question is whether the Wife's 
Interest determines by their Death or Whether she shall keep 
the Slaves till the Time the Children would have been 21. if they 
had lived 

It will be granted I presume that this Devise to the Wife 
must be taken redendo singula singulis viz. that she is to have 
the Work of the Slaves till the Children respectively come of 
Age And that each Child as it comes of Age is intitled to the 
Slaves given to it Cro. Ja. 259. Aylor & Chep. And it will be 
further granted I believe that in Construction this [69] Devise 
must be taken as if the Limitation was to the Wife first till the 
Children come of Age and afterwards to them Indeed otherwise 
the Devise to the Wife cannot be supported. 

Now in Devises of this sort there is a very great Difference 
where they are made for Paiment of Debts to maintain Children 
or upon any other Trust and where they are merely for the 
Benefit of the Devisee For if a Man devised Lands to his Exec- 
utors till his Son comes of Age for Payment of his Debts or 
Performance of his Will and then to his Son There tho' the 
Son die before he come of Age the Interest of the Executors 
does not determine but they shall hold the Land till such Time 
as he would have been of Age if he had lived Boraston's Case 



BARRADALL'S REPORTS B73 

3 Co. 19. Di. 210. a. Cro. EUz. 252. 1 Ch. Ca. 113. But if a Man 
devises Land to his Wife till his Son comes of Age and then to 
the Son in Fee And the Devise to the Wife is not expressed to be 
for Performance of his Will Education of his Children or for 
any other particular Purpose but is purely for her own Benefit 
In that Case if the Son die before 21. the Wife's Interest is 
determined and the Land shall go to the Heir of the Son presently 
Hill. 1713. between Mansfield and Dugard decreed Chr. Ca. Abr. 
195. 4. The Reason of the Difference in these 2. Cases is plain 
In Strictness of Law the Estate determines in both Cases For 
if a Man makes a Lease or grants Land to another till his Son 
comes of Age the Lease or Grant is subject to the Contingency 
of the Son's living till that time If he dies before the Lease or 
Grant determines Boraston's Case 3 Co. 19. b. Agreed per totam 
curiam 6 Co. 35. b. Plo. 273. And this of Necessity for Grants 
being taken strictly according to the Words, Unless the Estate 
was to determine by the Death of the Son It must continue for- 
ever for the Son will never be of Age Now the great Difference 
between a Devise and a Grant is this that in a Devise a more 
liberal Construction is allowed And it is not so much the Form 
of Words as the Intention of the Testator that governs the Con- 
struction But yet where there is no apparent Intention to the 
Contrary a Devise as well as a Grant must be construed according 
to the Legal Sense and Operation of the Words 1 Sal. 238. 
Aumble & Jones And in such a Case no greater Interest will pass 
by a Devise than would pass by the like Words in a Grant The 
Resolution in Boraston's Case (supa) is founded upon the In- 
tention of the Testator collected from the Nature and Manner 
of the Devise The Case was '* A Devise to Executors, till H. B. 
should accomplish his full age of 21 years and the mean Profits 
to be employed by the Executors towards Performance of the 
Will " It was say'd it should be presumed that the Testator had 
computed that the Profits of his Estate by the Time his Son 
would be of Age would pay his Debts and therefore tho' the Son 
died before The Executors should hold the Land till such Time 
as he would have been of Age because otherwise the Testator's 
Intention in providing for the Payment of his Debts must be 
frustrated his Debts unpaid and his Will unperformed which 
are certainly very strong and cogent Reasons to induce such a 
Construction of the Will And so where the Devise is for any 
other particular Purpose as [70] the maintainance of Children 



B74 VIRGINIA COLONIAL DECISIONS 

or the like it may be reasonable to make such a Construction 
But where the Devise is general no Trust to be discharged but 
purely for the Benefit of the Devisee There is no equitable 
Ground or Motive to induce a more ample and liberal Con- 
struction than according to the legal Import and Operation 
of the Words Nor any Intention of the Testator appearing to 
carry the Devise further than the Words in their legal Sense will 
carry it And this I take to be the Reason in Mansfied & Dugard's 
Case (Supra) And upon which Distinction Boraston's Case and 
that are reconciled 

That Case was thus ** A Man devised Lands to his Wife till 
his Son should attain his Age of 21. and then to his Son and his 
Heirs The Son died at 13. and tho* the Wife was Ex*x yet it 
not being devised for Paiment of Debts nor any Cred*rs or Want 
of Assets appearing the Lord Chancellor (Harcourt) held that 
the Wife's Estate determined by the Death of the Son and upon 
a Rehearing continued of the same Opinion." 

I will beg Leave to read Boraston^s Case and This Now the 
Devise before us is exactly the same as this last only here the 
Slaves are devised first to the Children and then to the Wife 
But in Construction as I have already observed the Devise to 
the Wife must be taken first The Devise in this Case is generally 
to the Wife No Debts to be paid or any other Trust discharged 
but meerly for her Benefit And she is also made Executrix 
No two Cases can be more parallel in all their Circumstances 
and I hope my Lord Chancellor's Opinion will be taken for good 
Law especially when the Reason of the pifference between a 
Devise of this sort and a Devise for Paiment of Debts (as Bo- 
raston's Case and the other above cited are) is so clearly ac- 
counted for. 

I shall now proceed to consider the 2. Point Whether the De- 
vise of a Negro Child in the Mother's Belly be good tho* the 
Child is not bom till after the Testator's Death. 

The Objection I suppose will be that the Thing given was not 
in esse in Reum natura at the Time of the Devise And so being 
no more than a Possibility is not devisable 

I shall agree that Possibilities which are remote are not de- 
visable but I take a Difference between a near and a remote 
Possibility (Jacob's Dictionary verbo Possibility) It was never 
yet questioned but that the Profits of Land might be devised 
for a Time And in this very Will the Work i.e, the Profits of 



BARRADALL'S REPORTS B75 

the Work of the Slaves are devised to the Wife for a Time 
Now the Profits are not in esse they are but a PossibiUty So 
the Profits that shall be made of a certain Commerce may be 
devised and I can see no Difference between Devises of this 
Sort and the Devise of a negro Child that shall be born especially 
when the Child is actually [71] in ventre sa mere for then it has a 
Sort of Existence anciently it was Murder to procure the De- 
struction of such Foetus and the Law takes notice of a Child 
in ventre sa mere for a Devise to such is good and tho' it be but 
a Possibility it must be allowed to be a very near Possibility 
and must happen in a short Time For my part I can see no 
good Reason Why such a Devise should not be good It clashes 
with no Rule of Law that I know of nor is attended with any 
Inconvenience Why then should not the Testator's will be 
performed But I would not be understood as if I contended 
for carrying Devises of this Sort any further than where the 
Child is actually in the Mother's Belly It would be very in- 
covenient to allow a Devise of the 2. 3. or 4. Child that shall 
be bom for Reasons that are very obvious. Tho' even such a 
Devise as that is allowed by the Civil Law for a Man may devise 
Qtiidquid ilia ancilla perperisset 2 Dom. 159. S. 18. And it is 
clear from the same Author that the Civil Law admits of Devises 
of Things that are not in esse as the Fruits of a Farm the Profits 
of a Commerce and the hke Now it may be worth considering 
that in England Legacies are properly recoverable in the Spiritual 
Court where the Civil Law is the Rule of Decision Tho' the 
Chancery for many years has exercised a concurrent Jurisdic- 
tion with them But then the Chancery has some Regard to the 
Determinations of the Civil Law in Matters concerning Legacies 
as that noted Distinction between a Legacy given to one at 
the age of 21. and where Legacy is made paiable at 21. which is 
allowed to have a very slender Foimdation in Reason but because 
the Distinction is kept up in the Civil Law the Chancery observes 
it too that the Subject may have the Same Measure of Justice 
in which Court soever he sues. Ch. Ca. Abr. 295. 2. in Notis. 

And I humbly hope that this Court will pay the same Regard 
to the Decisions of the Civil Law in Matters concerning Legacies 
at least so far as it is not inconsistent with the Spirit of our 
Laws nor attended with any Inconvenience And then it is mighty 
clear that the Devise of a Child in Ventre sa mere is good But 
here as I sayed it will be necessary to stop and not to suffer 



B76 VIRGINIA COLONIAL DECISIONS 

Devises of this sort to be carried any further because of the In- 
convenience that will follow 

I shall now speak to the 3. Point Whether the Pits, can join 
in this Action for this must of Necessity be made a Question let 
the merits be determined either way because the Pits, have 
several and distinct Rights If the Merits are determined ag*t 
the Deft. Then the Pits. Giles and his Wife have a Right to the 
Slaves in Question and the Pit. Mallicote has no Pretence of 
Right But if the Merits are with the Deft. Then the Pits. Giles 
and his Wife have no Right but the Pit. Mallicote does pretend 
some Right in that Case. 

Upon the very State of the Question the absurdity appears of 
joining the Pits, in this Action for they cannot have both a 
Right to recover but if one has a Right the other has not 

This is really a new kind of [72] Policy and the first Time I 
believe it was ever pratised It is having two Strings to the Bow 
If we can't recover by one Title we will by the other But I 
doubt the Consequence will be that they will recover by 
neither 

There is no Instance in the Law that I know of where two 
persons having distinct and several Interests can join in an 
Action But it is a com'on Exception in Arrest of Judgment 
where two join to object that their Interests are several as Di. 
320. a. Stil 203. 2 Lev. 24. 3 Lev. 362. But if there was no 
Authority the Reason of the Thing speaks plain enough If 
Judgment be given for the Pits, it must be that the Pits, recover 
But will the Court give such a Judgment when one of the Pits, 
has no Right to maintain the Action Who shall have the Damages 
in this Case not he I hope that has no Right to recover them 
Yet if any Judgment is given for the Pits, they will both have 
an equal Right to the Damages Besides who can tell for whom 
the Jury intended these Damages Perhaps they might be 
intended for the Person who has no Right to maintain the Action 
And is there any Reason then that the Deft, should pay. The 
Damages here were certainly designed for Giles and his Wife 
but if they have no Right to maintain the Action Ought they 
to have any Damages I need say no more in so plain a Point 
especially as it is no new Objection in this Court Even in the 
Case of an Ejectment where one of the Lessors had no Title 
Upon such an Objection the Court would give no Judgment 
It has been twice so adjudged as I have been told in the Cases 



BARRADALL'S REPORTS B77 

Meachen & others ag't Burwell and Dewberry & Others ag't 
Smith. 

But if the Pits. Giles and his Wife have no Right as I hope 
it is clear they have not the Pit. Mallicote has really no Right 
at all Or if she has it is not such a Right as will maintain an 
Action of Detinue The Title she sets up is under the Remainder 
limited by the Testator's Will to the surviving Children In 
case of the Death of either without Heir of their Body Now 
this Rem'r I conceive is void being limited upon too remote 
a Contingency viz. a Dying without Issue which may not happen 
in 1000 years And no limitation of a Chattel can be upon a 
Contingency unless the Contingency is to happen within the 
Compas of a Life or Lives in Being or within a reasonable number 
of years as 20. or 30. 1 Sal. 229. But this Point was settled in 
the Case of Slaughter & Whitlock argued last Court (posted) 
where Slaves were devised to one and if he died without Issue 
Rem'r over It was adjudged the Rem'r over was void and the 
absolute Property vested in the first Devisee so that the Deft, 
as Heir at Law to his Brother is solely intitled to the Slaves 
in Question. 

Or admitting this Pit. has a Right it is no more than as Tenant 
in com'on with her other Brothers and Sisters [73] The 
Rem'r is limited to be equally divided between the Survivors 
Now surely no Lawyer will say that one Tenant in Com'on of a 
Chattel can maintain an Action of Detinue ag't the other Tenant 
in Com'on where there are only two much less where there are 
more than two as in this Case Every one of them has the same 
Right that the other has and by the same Rule that the Pit. 
Mallicote can maintain this Action ag't the Deft, if she recovers 
another of the surviving brothers or Sisters may recover of her 
and the Deft, again may recover of that Brother or Sister or 
even of the Pit. herself, and so there would be no end to suits 
and Controversies. This sufficiently shews the Reason of the 
Law why one Tenant in com'on shall not have an Action at 
Law ag't the other 1 Inst. 200. a. The Remedy must be in 
Equity Indeed that Remedy is pointed out by the Act of 
1727. c. 11. S. 18. 

This Case was compromised and so no Judgment given. 



I 



B78 VIRGINIA COLONIAL DECISIONS 

■ 

OCTOBER COURT MDCCXXXVIII. 

Faldo for Seymour Powell and Ann his wipe ag't Thurmer 

In Ejectment. 

Argol Ransha seised of 300 acres of Land died intestate leav- 
ing two Daughters Ann and Sarah to whom the same descended 
Ann married George Jackson and had Issue by him Ransha 
George Sarah and Ann Ransha Jackson being seised of a 
Moiety of the said 300 Acres by Descent from his Mother devised 
the same by his Will to Rob. Thurmer who had married his 
sister Sarah for their lives Rem'r in Fee to their Son George 
Thurmer and died without Issue which Moiety is the Premes in 
Question Sarah Thurmer had no other Child but George before 
named And the said Robt. Thurmer Sarah his Wife and George 
their Son are all dead George leaving no Issue and dying in 
1725. George Jackson survived George Thurmer and is dead 
without Issue but Robert Thurmer survived him Ann the 
other Daughter of Geo. and Ann Jackson is one of the Lessors 
and as Aunt and Heir at Law of Geo. Thurmer claims the 
Premises. 

George Jackson the Son before the Death of George Thurmer 
viz. in 1723. by Deed in Cons, of £lQ. sells to Robt. Thurmer all 
the Right Title and Interest which he then had or should have 
at any Time thereafter to all the Land that formerly belonged 
to Argol Ransha The Deft, is Heir at Law to Robt. Thurmer 
and sets up a Title under this Deed So that 

Che Sole Question in this Case is whether this Deed from 
George Jackson made at a time when he had no Estate Right 
or Interest can operate at all to Convey the Right which after- 
wards accrued to him upon the Death of George Thurmer Whose 
Heir he was For if Nothing passes by this Deed the Title of 
the Lessors is clear both as Heir of George Thurmer and George 
Jackson. 

[74] It is really admirable that any Lawyer will offer to 
argue so clear a Point and contend ag't a Maxim and Rule of 
Law viz. That a Possibility cannot be granted over or released 
1 Inst. 214. a. Which is as well known and as settled a Point 
as that the eldest Son shall inherit In Westminster Hall I am 
sure the Court would not suffer an Argument to be made. 



BARRADALL'S REPORTS B79 

When this Deed was made Robt. and George Thurmer were 
both alive Robert had an Estate for Life and Geo. the Rem'r 
in Fee What Right or Interest then could George Jackson 
have It is true he was presumptive Heir to his Nephew and 
so had a PossibiHty of having the Land upon his dying without 
Issue But this PossibiUty could not be granted over or re- 
leased as I have sayed. There is a great Difference between 
a bare Possibility and a future Interest that will certainly happen 
one Time or other as a Reversion or Rem'r expectant upon the 
Determination of any particular Estate As in this Case after 
the Death of Geo. Thurmer George Jackson as Uncle and Heir 
to him had a Rem'r in Fee expectant upon the Death of Robert 
and Sara Thurmer and without doubt after George Thurmer's 
Death might have granted or released his Interest but having 
no more than a bare Possibility during Geo. Thurmer's Life 
he could not grant or release that but his Deed is absolutely 
void And if he himself had survived Robt. Thurmer the Tenant 
for Life he might have entered into the Land against his own 
Deed. 

It must be owned there are Words sufficient in this Deed to 
carry a future Right if the same was grantable ** All the Estate 
&c. that I shall have hereafter" Littleton in his chapter of 
Releases Sect. 466. takes Notice that such Words are usually 
put in Releases but says they are no Effect because no Right 
passes but that which the Releasor hath at the Time of the 
Release made This he illustrates by putting the following 
Case If there be Father and Son and the Father is disseised 
and the Son Hving the Father releases to the Disseisor all the 
Right which he hath or may have Yet after the Father's Death 
he may enter upon the Disseisor ag't his own Deed for nothing 
passed by it All the Right when he made the Deed being in His 
Father I suppose there is the same Reason between any other 
Ancestor and Heir as between Father and Son And then thir 
Case is exactly Ovirs except as to the Disseisin George Thurmes 
and George Jackson were Ancestor and Heir George Jackson 
releases or grants it is the same Thing in the Life of George 
Thurmer This Deed I say is Void and nothing passed by it 
because all the Right at the Time [75] of the Deed was in George 
Thurmer I think the Cases are exactly parrallel. 

There are besides an infinite number of Cases in the Books 
where it has been adjudged that a PossibiUty cannot be granted 



B80 VIRGINIA COLONIAL DECISIONS 

over assigned or released 4 Rep. 66. b. In Fullwood's Case 10. 
Rep. 47. 48. Lampet's Case 3 Lev. 427. Bishop & Fountain 
1 Inst. 265. b. But it is mispending Time to say more in so 
clear a Point I shall therefore only just observe the Reason 
and Policy of the Law in not admitting a Possibility to be trans- 
ferred and it is upon the same Ground that a Thing in Action 
shall not viz. for avoiding of Maintainance Suppression of Right 
and Stirring up of Suits 1 Inst. 214. a. which are certainly excel- 
lent Reasons and shew the Wisdom and Justice of the Law in 
discountenancing and prohibiting every Thing that may have 
a Tendency to such Mischiefs 
Judgment for the Pit. 

APRIL COURT MDCCXXXIX. 
Harrison ag't Halley 

s. C. Jeff. 58. 

A judgment having passed against the Deft, and Pit. as 
Sherif The Pit. 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 Pit. 
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. 

[76] Webb ag't Elligood Appeal from New Kent 

s. C. Jeff. 69. 

This was an Action ag't the (Appellant) Sherif for an Escape 
and upon a Special Verdict The Case was the Pit. (Respondent) 



BARRADALL'S REPORTS B81 

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. 69. Mercer. 

The Pit. 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 Pit. 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'l. 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 



B82 VIRGINIA COLONIAL DECISIONS 

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 Pits, 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 tinless 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 ICin 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 Vem. 

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 



BARRADALL'S REPORTS B83 

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 tuiiversal 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 Vem. 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 Vem. 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 






B84 VIRGINIA COLONIAL DECISIONS 

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 Pits, 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 



BARRADALL'S REPORTS B85 

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 Pits. 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 172G, 23 years old Lessor [sic] 
is his Heir 

The Questions are 1. Whether John had an Estate tail or 
Contingent Fee. 2. Whether Pit. 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 personcB. 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 



B86 VIRGINIA COLONIAL DECISIONS 

In Price and Hxmt 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 
Uved 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. EUz. 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 Bed 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. 

CoUenson & 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 Devisee has a Fee and the Rem'r can 
never take Place. 



BARRADALL'S REPORTS B87 

[81] These Cases axe 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 Pit. was certainly barred by by the Act of Lim. tho 
the Court gave no Judgment on that Point. 

For the Pit. For the Deft. 

Lee Lightfoot Tayloe 

Randolph Custis Grymes 

Robinson Carter Digges 

Blair Byrd and the Governor 

GooDLOE ag*t Dudley &c Appeal from Caroline 

s. C. Jeff. 69. 

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. Pit. 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 Sheriffs 
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 



B88 VIRGINIA COLONIAL DECISIONS 

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 Questioh 

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 



BARRADALL'S REPORTS B89 

for a Profit out of the Fees they are not to be xmder 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. 1 Mod. 37 Carter 
229. Pearson a Humes 2 Dan v. 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 Pit. 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 
Pit. himself is Sued. 

No Honesty in the Plea Practice usual and under some 
circumstances justifiable 

Judgment for the Pit. 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 Pit. 
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 QucBve 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. £. 6. 

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 40;^ by the 23. H. 6. 

[84 page blank]. 



B90 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 Cotmty 

(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 Pit. 

Anno. 12. H. C. a like Action for Suing in Admiralty for 



BARRADALL'S REPORTS B91 

Trespass in entering Ships and carrying away Goods in the 
Haven of Yarmouth in Norfolk 

The Thames at BilHngsgate Infra corpus Com, 

Replevin for taking a Ship in the Coast of Scarboroug good 

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 6onstitute 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 Httle 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. 

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 



B92 VIRGINIA COLONIAL DECISIONS*' 

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 Cujtisdam ignoti Hawk. 94. 29. Dalt. 
cap. 156. Dy. 99. pi. 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 sufiEer a Criminal to escape as for robbing a Chtirch in 
Vacation Indictment may be Bond Capellae in the custody of 
such a one So Bona Domtis & 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 steaUng 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 pubUshed 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 England 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 



BARRADALL'S REPORTS B93 

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 Hke Which 
however ought to be xmderstood under some restrictions 

For I take it the rule only holds while the Beast is actually 
wandering 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 L 
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, 
[88] 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 comntiitted 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 Cane, Jeff. R. 62. S. C. 

See 2 Hop. 101. the Argrum't at Law intended to be made before the act of 1734 
to prove that the private exam, ought to be prestuned 

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 Pit. Johns father & 400 a. to Pit. Roger and 



B94 VIRGINIA COLONIAL DECISIONS 

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 
& Pit. Roger conveied the 400 a. to Pit. 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 Pit. 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 Pit. John his eldest 
Son And Pits, 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 suppHed And the Defts. to make a perfect 
& absolute conveiance the Pits, 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 Answer 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 



BARRADALL'S REPORTS B95 

sell the Land to the Jones's She answered that she nor her 
family could not have their healths upon nor make Com 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 

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 Circxmistance 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 
Eqtiity 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 acqtiiesces 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 no great 
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 



B96 VIRGINIA COLONIAL DECISIONS 

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 
pecuHar 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 



BARRADALL'S REPORTS B97 

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 



B98 VIRGINIA COLONIAL DECISIONS 

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 Ancestor^ 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 



BARRADALL'S REPORTS B99 

tinder by her A Purchaser without any remedy unless assisted 
by this Court The reHef 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 
estabUshed 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 Pari. 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 InroUm'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 Pit. 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 Purchaser for a 
valuable cons. This sufficiently obviates all that has beensay'd 
about decreeing ag'st [94] an Act of Pari. 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 



BlOO VIRGINIA COLONIAL DECISIONS 

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 Purchaser & 
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 f av*r of honest Purchasers. 

In this Case the Bill was dismissed by the Opinion of a great 
Majority of the Cotirt. 

Deeds acknowledged to be inroUed 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 Cane. 

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 each of them an equal Share with the Cooks & Tuckers 
or only one Share among them 

Barradall Fr the Pit. 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 



BARRADALUS REPORTS BlOl 

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. Vem. 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 controul* 
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 Pits. 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 



B102 VIRGINIA COLONIAL DECISIONS 

principally in his intention to prefer them & one of them the 
Pit. 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 ixs 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 

If it be objected that what Mr. Boush Swears is only his 
Opinion I answer it is something more he was the Writer of the 
Will And one who takes Words from the Mouth of another to 
commit to writing may from the way & manner of the party's 
expressing himself be a better judge of what he means & intends 
than any person can possibly be who reads the words afterw'ds 
And Boush says when he wrote the Will he did believe the Tes'tor 
intended no more than |th for Walkers Children So that this 
is certainly something more than a bare Opinion & I dare say 
will be considered as a strong circumstance at least to prove 
the Tes'tor's intention That the Writer of the Will at the time 
he wrote it apprehended the Tes'tors intention to be so 

Thus we have not only the Evidence of the Writer of the Will 
but the other strong circumstances viz. The intention of the 
Tes'tor from the whole Scope of the Will The true rule for con- 
struing all Wills The inequality this will occasion contrary to 
the presumed rules of Affection 

And on the other hand I dont know one Circumstance that 
can be offered on the other side to fav'r the construction they 
contend for There could be no inducement from the Circum- 



BARRADALL'S REPORTS B103 

stances of the Children's father to provide so largely for them 
Mr. Walker is very well able to provide for his own Children 
The Children's Mother was dead & we [97] may rather suppose 
his Affection was lessened from that Circumstance There is 
no proof of extraordinary Affection to these Children And the 
truth is he conversed but little with Mr. Walker whereas the 
Pit. lived with him So that I apprehend they have nothing 
to rely upon but the Words And I conceive the words may 
very well receive the Construction I contend for. The Word 
Equally may very well import Equal according to the Relation 
of the sev'l Legatees Especially as he has not mentioned the 
Children's names but seems by the manner of the Expression to 
consider them as one P — son as the Representatives of their 
Mother 

But if there is any doubt upon the words themselves The 
Testimony of the Writer The Scope of the Will & the other Cir- 
cumstances which have been observed sufficiently & I conceive 
incontestably shew the Tes'tor's meaning. 

P. the Deft. It was insisted that the word Equally could 
not be satisfied unless the Children had each of them a Share 
That it was the genuin construction & the Tes'tor could not 
have expressed himself in any other manner to give it them 

That there was no difference between naming the Children & 
not That there were no Cases where parol proof or Circum- 
stances were admitted to influence Construction of a Will but 
to make certain a person or thing Cole & Rawlinson 1. Salk. 325. 
Cary & Bertie 2. Vem. 337. Rachfield & Careless Mo. Ca. L. & 
Eg. g. were cited 

That there were Circumstances in their fav'r Tes'tor might 
intend a provision for his Nieces Children In case Walker 
married again The Tuckers had good fortunes from their father 
Uncertain what Walker might do for his Children 

There were also cited these Cases Weld & Bradbury 2. Vem. 
705 Devise to the Children of I. S. & T. N. who had neither 
of them any living at time of Devise or Tes'tor's death Adjudged 
Children bom afterwards should take & that per Capita not per 
Stirpes. 

Walsh & Walsh Ch. Ca. Abr. 249. A had three Brothers all died 
before him leaving several Children Adj'd Children should take 
per Capita not per Stirpes Because do not take by way of Repre- 
sentation but all as next of kin 



B104 VIRGINIA COLONIAL DECISIONS 

And a Case out of Swinbum where a Father & his Children 
were made Ex'ors & Residuary Legatees And held that each 
of the Children should have a Share 

Et Vide Pres. chan: Warner v. Hone & Talbot, 251, Thomas v. Hole. 

To which it was Answered 

Admitting the word Equally ex vi termini imports that each 
shall have the same Part Yet here we are in the Case of a Will 
where the Intention is to govern without regard to the precise & 
strict Signification of the words And the q'n here is Whether 
the Tes'tor did not consider [98] Mr. Walkers Children collec- 
tively as representing their Mother In that view the word 
Equally may very well be satisfied by giving them a a 5th The 
Matter depends upon the meaning & intention of the Tes'tor 

See Skinner 182. 

The Children not being particularly named is certainly an 
Argum't that the Testor considered them collectively tho* if 
they had been named it would have made but little in fav'r of 
their Argum't 

It is strange it sh'd be say'd there are no Cases where parol 
proof is admitted but to make certain a person or thing After 
so many have been mentioned which prove the contrary viz. 
that it is admitted to explain a Tes'tor's meaning But admit- 
ting it to be so we are within the Distinction we are here en- 
deavouring to ascertain the person in some sort Cole & Rawlin- 
son & Cary & Bertie are upon a Devise of Lands where I agree 
parol proof is not admitted The reason of which is the Statute 
And in Rachfield & Careless it is only say'd no Evidence shall 
be admitted where the Will explains itself which admits that 
Evidence may be where the Will wants explanation And tho* 
such proof is not allowed to a Jury It is always allowed to the 
Court in Equity Ch. Ca. Abr. 230. in Notts. 

The Circumstances relied on in their fav'r are forced & meerly 
conjectural & no great complim't to Mr. Walker as to Tuckers 
having good Fortunes That is not the Case of the Cookes but 
probably he intended to keep up his Name & family 

Weld & Bradbury was cited I suppose because there happens 
to be the words Stirpes & Capita in it for it is nothing like this 
Case 

The p'son to whose Children the Devise was had none living 
at the time of the Devise and therefore it was held an Executory 



BARRADALL'S REPORTS B105 

Devise to such Children as they should afterwards have And 
the Children to take per Capita, There was nothing in the Case 
to shew he intended otherwise & without doubt in a general 
Devise to a Mans Children they shall take equally which is all the 
Case cited out of Swinbum prooves 

Walsh V, Walsh is still less to the purpose The Quest, there 
was upon the Stat, of Dist. A man had three Brothers who 
all died before him & all left Children And it was held the Chil- 
dren sh'd take per Capita being all in equal degree of Relation 
There they did not take by Representation all their fathers being 
dead but if one had been living it had been otherwise 

In the Case of Godwin v, Kinchens Ex'ors heard in this 
Court in April 1738 the Devise was thus ** All the rest of my 
Estate I give to my Brother W*m Kinchen & my three sisters 
Eliza. Martha & Patience & James Godwin's 3 Children James 
Martha & Matthew. And it was held and so Decreed that 
Godwin's Children took collectively and had but a 5th. 

Vide. 2. Will. 383. Blackler v. Webb seems contrary to this Case. 

[99] And so in this Case after two Argum'ts it was decreed 
for the Pits, that Walker's Children took collectively & were 
intitled only to \ among them 

But note this Decree was reversed upon an Appeal And 
chiefly as I have been informed by reason of the Word (Parts) 
in the Lim over to the Surv'r of Walker's Children 

BuRWELL &c. vs. Ogilby &c. Ifi Cafic. 

One Ogilby by his Will devised as follows ** As to what relates 
'* to my temporal Estate I appoint as my whole & sole Ex'or 
** my^ beloved Wife Item I desire all my lawful Debts be paid 
** after my funeral Charges Item I leave all Estate at the dis- 
** cretion of my Ex'x to be equally divided among my Children 
** bom in Virg'a And that my Wife shall possess the House & 
** Lots during Widowhood but if she marries the House & Lots 
"to be sold & equally divided among all my said Children" 
There being a deficiency of p'sonal Assets to pay the Tes'tors 
debts The Cred'rs by simple Contract brought this Bill ag'st 
the Ex'trix & Children to subject the House & Lots devised 
above to the paiment of their debts 

Barradall fr Pits. The Lands & Tenem'ts of a person dece'd 
are not subject by the Common Law to the paiment of debts by 



B106 VIRGINIA COLONIAL DECISIONS 

simple contract tho' they are to debts by specialty But as 
there is no foundation in natural Justice for this distinction 
And the Civil Law makes no difference between debts of the 
one sort & the other Nor even a Court of Equity in Cases of 
Bankrupcy & Meer Equity as Trusts &c. Therefore Equity is 
always ready to assist simple contract Cred'rs to subject the 
Lands to a satisfaction of their debts where the p'sonal Assets 
are deficient 

If an Ex'or pays debts by Specialty out of the p'sonal Assets 
Equity will relieve the simple contract cred*rs & charge the 
Lands to the value of the Debts by Specialty paid by the Ex'or 
And so in Case of a Will the most liberal construction will be 
made to subject the Lands And this seems founded both in 
Charity & Justice for we ought charitably to suppose every Man 
intends to pay his Debts & tis certainly just & right that they 
should be paid 

The words of the Will are ** As to what relates to my tem- 
poral Estate I appoint my wife Ex'or Item I desire all my 
Debts may be paid after my funeral charges'* 
[100] The words temporal Estate include real & p'sonal 
Then immediately speaking of his debts is a plain indication 
he intended they should be paid out of his whole Estate He 
designed to provide for them in the first place. 

Talb. 284. Tanner & Morse. 

Then the Will goes on ** I leave all my Estate to the discre- 
** tion of my Ex'trix to be equally divided among my Children & 
** that my wife shall possess the House & Lots during her 
** Widowhood but if she marries to be sold &c." 

This Clause shews he intended his wife & Ex'trix should dis- 
pose of his Whole Estate & having provided for the paiment of 
his debts first it must be intended out of the Estate given to his 
Extrix 

The very making a proviso for paim't of his debts imports an 
intent to subject his real Estate because p'sonal would be 
subject without 

Cases of this sort frequent 

Cloudsly & Pelham 1. Vern. 411. Devise of Lands to B. in 
tail Then reciting that he owed B. money devised to him all 
his p'sonal Estate willing him to pay his Debts Tho' the Clause 
as to paiment of Debts seemed only to relate to p'sonal Estate & 



BARRADALL'S REPORTS B107 

ids were intailed Yet held that Lands were liable Alcock 
:hawk 2. Vem. 228. A devises his Land to his Brother & 
makes him Ex*or & desires him to see his Will performed 
. held liable to debts 

ichcroft & Beachcroft 2. Vem. 690. I do by this my Will 
se of such Worldly Estate &c. first I will that all my Debts 
id 

>tt & Vernon Abr. E. 198. 6. I will & devise that all my 
; Legacies & funerals be paid & discharged in the first place 

c. Ch. 430. S. C. Hallon & NichoU Talb. JIO. s. p. 

-rord Warrington & Lee Rep. Ch. & K. B. 39. As to all my 
jrldly Estate &c. I give & dispose in manner following 
Imprimis I will that all my Debts be discharged & paid 
Harris & Ingleden cited in Case ult And as touching such 

Voridly Estate & my Debts being first yaid & satisfied I will & 

ievise &c. 

Bowdler & Smith Prec. Chanc. 264. In point 

In all which Cases it was decreed that the Lands were liable 
to the paiment of the Testor*s debts 

The number of these Cases shew the concurr'd Opinion of 
many great men 

The 2. first Cases turn upon all the Estate being devised to 
the Ex'or And then there is an implied Trust 
[ 101] The latter 3 turn all upon this expression in the begin- 
ning ** as to all my Woridly Estate " providing for his debts in 
the first place 

We have the reasons of all these Cases 1. Tes'tor has given 
all to his Wife & Ex'trix, 2 he begins As to my temporal Estate 
3. he provides for his debts in the first place. 

In this Case it was decreed fr tot cur prcBter Randolph & Custis 
that the House & Lots should be sold to satisfie the Pits. Debts. 
And that the Sherif of the County should sell to the highest 
bidder & the Ex'trix & Heir make a Conveiance to the Purchasor 

Anonimus. 

Vide. 

A man marries a woman intitled to a distributive part of her 
Father's Estate & dies before distribution. Q. Whether this 
distributive part survives to the wife or shall go to the Adm'r 
of the husband 



B108 VIRGINIA COLONIAL DECISIONS 

The general rule of Law is that Things in Action do not vest 
in the husband by the marriage unless reduced to a possession 
during the coverture but survive to the Wife 1. Inst. 35 L 6. 

They must either be reduced to an actual posscon or there must be some act to 
attach the Intt. in the husband. 

I cannot easily apprehend how the distributive part can be 
distinguished from any other debt duty or interest of the wife's 
It seems to be as much a thing in action as a Debt due by Bond 
or otherwise or a Legacy which [sic] must be admitted do not 
vest in the husband meerly by the marriage unless there be a 
Judgm't during the coverture or some other act to alter the 
property as a promise to the husband an assent to the legacy 
or the like 

But even in the Case of a Judgm't at Law for the Debt or a 
Decree in Equity for the Legacy if the husband dies before 
Execution the benefit of the Judgm't or Decree survives to the 
wife & she shall have Execution & not the Executor of the 
husband 1. Ch. Ca. 27. Nanny & Martin 1. Ch. R. 233. S. C. 
for by the Judgm't the Debts attached in them jointly Carth. 
415. Skin. 632. So that if the husband survives he shall have 
it If the Wife she shall have the benefit 

In this Case then if there had been a recovery of the dis- 
tributive part by Decree & the husband had died before the 
Decree was satisfied The Wife would have had the benefit 
How much more so when there is no recovery or any Act to 
attach this Interest in the husband. 

[102] Obj. Cary & Taylor 2. Vem. 302. A. Married B. the 
Daughter of J. S. who dies Intestate B. dies before distribu- 
tion A. also dies before distribution or Adm'con taken to his 
wife The Q. was whether the Adm'r of the husband or the 
Adm'r of the wife was intitled to B.'s distributive part of her 
father's Estate It was agreed in this Case that the distributive 
part was an Interest vested but the doubt was whether it was 
so vested as a legacy assented to that it should vest in the 
husband without taking Adm'con to his wife And it was argued 
for the husband's Adm'r (the Pit.) that since the Stat, for 
settling Intestates Estates the Adm'r is but in the nature of a 
Trustee & the taking Adm'con as the acceptance of a Trust & 
implies an Assent that the Estate should be distributed accord- 
ing to the Stat. & therefore the distributive Shares ought to be 
considered not only as a legacy but as a legacy assented to & 



BARRADALL'S REPORTS B109 

consequently go to the husbands Adm'r This was the. Coun- 
cil's Argum't but what the Decree was whether in fav'r of the 
husband's Adm'r or wife's does not appear by the Book But 
the Reporter adds at the End Tamen vide the decree By which 
manner of expression I sh'd judge the decree was rather ag'st 
the Argum't than in fav'r of it. However it must be allowed 
that it rem's uncertain how the determination was & therefore 
it can be no further an Authority than the reason of the Argu- 
m't may prevail 

And I must own it does not appear to me to have any great 
force in it Thus far I agree that the distributive part ought 
to be considered as a legacy & consequently as an Int. imme- 
diately vested but why it should be considered as a Legacy 
assented to any more than every Legacy given by a Will I 
cannot comprehend for as to the Adm'r being in the nature of a 
Trustee I take an Ex'or to be so too and there is not only an 
implied Assent to perform the Will but he takes an Oath to do 
so too And therefore to me the Argum't is as strong for a 
legacy vesting in the husband as this distributive part Yet it 
seems admitted that it wolud not vest without the Ex'ors assent. 
I don't find that the point has been determined in any Case 
either before or since And there being no resolution in that 
Case it is no Authority nor indeed does it weigh with me at all 
for the reasons I have mentioned 

Besides that Case diflFers from the present in this material 
circumstance that the right or interest accrued during the 
coverture & so the assent if it was to be implied must be intended 
to the husband But here the right or interest accrued to the 
wife before marriage And therefore this implied assent that is 
talked of must be to the wife & the right or interest could never 
attach in the [103] husband upon any such implied assent nor 
without some subsequent act nothing of which appears in this 
Case And so upon the matter this Case if it is an Authority is 
rather ag'st the Pit. than for him 

Then in that Case too the wife died first & the husband sur- 
vived Here the wife is Survivor which makes a material differ- 
ence as I shall mention presently 

Another Case that has been mentioned is Fouke & Lewen 1. 
Vem. 88. A man married a Citizens Dauter She died before 
21. & before her husband had rece'd her Orphanage part He 
brings a Bill for it It was insisted that by the Custom of Lon- 



BllO VIRGINIA COLONIAL DECISIONS 

don the Share survived to the other Children But the Court 
say'd that tho* there might be such a Custom where an Orphan 
died before 21. unmarried Yet it could not take place where the 
Orphan married & the Int. of her Share vested in the Husband 

Vid. Prec. Chan. 537. 

All that this Case proves is that an Orphans Share who mar- 
ries & dies before 21. does not survive to the other Children. 
There is indeed mention made of her Share vesting in the hus- 
band but whether it vested in such a manner as to go to him 
without taking an Admcon to his wife is not say'd And I am 
of Opinion that it did not vest in him absolutely but that if the 
wife had survived she would have been intitled to it & not her 
husband's Adm'r according to Pheasants Case 1. Ch. Ca, 181. 
2 Vern. 340. which as to this point was thus A man married 
an Orphan whose fortune was in the Court of Orphans he rece'd 
ab't £40 & no more & died having devised the residue The 
Q. was whether he could devise it or in other words whether it 
survived to the Wife And it was held that this Money was a 
Chose in action that it did not vest in the husband & therefore 
he could not devise it but it survived to the wife 

Prec. Chaxic. 209. s. p. 

This is a resolution in point almost; At least I can discover 
no essential difference between this Case & that now before us 
The Q. made was whether the Money in the Chamber of London 
was to be considered as a debitum or a depositutn If the latter 
it seems admitted that it would vest But it was held to be a 
Debitum because Trover would not lie for it as it would for a 
Depositutn And it was not recoverable without an Action. 

So I say the distributive part in the Case before us is Debitum 
& not Depositum Trover will not lie for it Nor can it be 
recovered but by Suit in Equity 

This Case agrees best with ours in Circumstance Here the 
wife survived In the other two Cases the husband was the 
Surv'r And in the latter Case he might have taken an Admcon 
to his wife for anything that appears The point of Survivor- 
ship may make a great difference There are many things 
husband & Wife have a joint [104] Interest in & which go to 
the Surv'r as a Decree or Judgm't for Money due in right of the 
wife 

Upon the whole conclude that it must be a great absurdity 



BARRADALUS REPORTS Bill 

in the Law to give this Int. to the husband without any 
Judgm't or Decree during the Coverture when if there had 
been such Judgm't or Decree & the husband had died before 
Ex' con the benefit would have survived to the wife 

I therefore look upon this distributive Share as a Thing in 
action that did not vest meerly by the marriage There was 
no act during the Coverture to attach the Interest in the hus- 
band And so it must survive (*) to the wife & not be subject 
to the husband's debts 

(a) See Ld. Chancellor's Opin. Talb. 170. 

Daeth & Baux 1. Mod. Ca. L. & Eq. 63. Motion for a prohi- 
bition to the Spiritual Court for suffering a feme Covert to sue 
singly upon the Stat, of Distributions Because it was properly 
so vested in the husband that it might be released by him But 
denied fr. Cur. for this was a Chose in action & so much the 
wifes that she shall have it by Survivorship 

This was a Case in James City upon a Special Verdict And 
the Court gave Judgm't for the husband's Adm'r that the wife's 
distributive part vested in the husband, Much against my 
Opinion 

OCTOBER COURT MDCCXL. 

Brock vs. Lyne 

Susanna Orrill seised in fee makes a Deed of Gift to her Son 
& Heir Orrill in tail. She dies leaving issue this Son & a Daugh- 
ter by her first husband & a Son by a second husband Orrill 
the Donee dies without issue The Lessor of the Pit. is his 
Sister & Heir & the Deft, is the Donor's Son by her second 
husband & is her Heir The Q. is whether the Reversion which 
was expectant upon the determination of the Estate tail created 
by the Deed from S. Orrill to her Son Orrill upon the death of 
Orrill the Son descends to the heir of Orrill the Son who is the 
Pit. or to the Heir of the Donor S. Orrill who is the Deft. Barra- 
dall fr. Deft. It must be agreed on all hands that after the 
Deed from S. Orrill to her Son whereby she gives him only an 
Estate tail there was remaining in her a Reversion expectant 
[105] upon the determination of that Estate tail 

The Rev'n upon her death descended to her Son Orrill the 



B112 VIRGINIA COLONIAL DECISIONS 

Ten't in tail And that after her death he was Ten't in tail with 
the Rev'n in fee expectant all which I agree 

Upon the death of Orrill the Son without issue whereby the 
Estate tail determined this Rev'n expectant they say descended 
to the Sister & heir of Orrill the Son. But I say it descended 
to the heir at Law of the Donor who is the Deft. This is the 
point between us It is a rule of Law that I hope will not be 
denied that whoever claims an Inheritance as Heir must make 
himself Heir to him who was last seised of the fee 3. Co. 41. 42. 
Co. Lit. 11. (3. 15. a. 

Now Orrill the Son was never seized of the fee simple He 
was Ten't in tail & the fee simple was only expectant The 
person who was last seised of the fee was S. Orrill the Donor and 
who ever claims the Inheritance must make himself heir to her 
which the Pit. is not but the Deft. 

In 3. Co. 42. a. Ratcliff's Case It is expressly sayed he who 
claims a Rev'n or expectant as heir ought to make himself heir 
to him who made the Gift S. Orrill made the Gift the Deft, is 
her heir not the Pit. 

In the rules which govern Descents we are not to look for 
solid reasons to support them It is enough if the Law is clear & 
settled The rules of Descent vary almost in every Cotmtry & 
perhaps we shall find few of them founded upon the principles 
of right reason or natural Justice The rules of the Civil & 
Common Law are widely different & the Lawyers of both sorts 
contend for the excellency of each The Inheritance descends 
to the Eldest Son by the Common Law whereas by the Civil 
Law I mean the Roman all the Children succeed to the Inherit- 
ance The Common Law utterly excludes the half Blood By 
the Roman Law they succeed in the Second Place In both 
these Instances the Civil Law seems to be preferrable More 
agreeable to nature & justice 

1 Domat. 684 Ha. Hist. Common Law, 214. 

By the rules of Descent that obtain in the law of England the 
Pit. can't claim the Inheritance as heir to her Brother because 
her Brother never was seised or poss'ed of the fee simple 

The rule of Law is possessio fratris de feodosintplicifacUsororem 
esse hcBredem The rule is mentioned by Lit. sect. 8. where speak- 
ing that the half blood can't Inherit he puts the Case of a man 
having a Son & a Daughter by one Venter & a Son by another 



BARRADALL'S REPORTS B113 

If says he after the death of the father the elder Son enters & 
dies without issue the Inheritance shall descend to his Sister 
but if the elder Son dies before he enters Then it shall descend 
to the Bro'r of the half Blood as heir to his fa'r because says he 
it is posses sio fratris &c. 

Coke in commenting upon this Sect. & this rule of Possessio 
fratris [106] 1 Inst. 14. 15. puts sev'l Cases where the Sister 
can't inherit & they all turn upon this point where there is not 
an actual pos*sion in the Bro*r for it is that must make the Sister 
heir Possessio says he is qtiasi pedis positio And therefore it is 
held in Ratcliff's Case before mentioned that if there be not an 
actual possession Or if the Inheritance be such of which an 
actual pos'sion can't be gained per pedis positionem the half 
blood shall come in 

Now the Inheritance here is a Rev'n expectant which it is 
impossible in nature could ever be reduced to an actual posses- 
sion per pedis positionem And therefore by the rules of Law 
the Sist6r can't inherit but it must descend to the heir of the 
Donor 

Nay in some Cases tho' the Son actually enters the Sister 
shall not inherit if this possession is afterw'ds defeated by legal 
title as where the Wid'o of the fa'r recovers Dower ag'st him 
If the elder Son dies in the life of Ten't in Dower his Sister shall 
not inherit but the Bro'r of the half blood as heir to the fa'r 
because the elder Son never had a rightful pos'sion 1. Inst. 15. 

If the fa'r makes a Lease for Life or Gift in tail & dies And the 
eldest Son dies in the life of Ten't for life or in tail the Bro. of 
the half blood shall inherit because the Ten't had the Freehold 
& the elder Bro'r only a Fee simple expectant Ibid, 

So here the elder Bro. was in possession it is true but of what 
why of an Estate tail but he had only a fee simple expectant 

Vid. 2. Dam. 558-9. 

Another Case put by Coke cannot be distinguished from this 
A Gift is made to a man & his wife & the heirs of their two 
bodies Rem'r to the heirs of the husband They have issue a 
Son The Wife dies Husband marries again & has issue another 
Son & dies The eldest Son enters & dies without issue The 
second Son tho' of the half blood shall inherit for the eldest 
Son was not actually seised of the fee simple which was expect- 
ant but only of the Estate tail for the rule says he is possessio 



B114 VIRGINIA COLONIAL DECISIONS 

fratris &c. but here the elder Brother was not pos*sed of the fee 
simple but of the Estate tail 

This Case is exactly ours the Son here upon the death of his 
fa'r was Ten't in tail with the Rev'n in fee expectant he died 
without issue and it was adj'd that the younger Brother of the 
half Blood as heir to the fa'r should inherit & not the heir of the 
elder Bro*r 

For the Pit. it was argued by Needier & Lewis to this purpose. 
Upon the death of S. Orrill the Donor the Rev'n expectant 
descended to her Son Orrill the Donee who was her heir at the 
time This Descent must exclude the Deft, who cannot claim 
as heir to Orrill the Son being only of the half blood but upon 
his death the Rev'n must descend to his heir who is the Pit. 
Upon the Descent of the Rev'n to Orrill the Son he was seised 
of it & might have aliened or devised it There was not indeed 
an actual pos'sion which cannot be by any possibility of an 
Estate in Expectancy But if he could dispose of it surely it 
ought to descend to his heir " Suppose he had actually devised 
or aliened [107] it Could the Deft, then have claimed ag'st such 
disposition It is not pretended The descent to his heir is 
the disposition of the Law & must work as strongly as the act 
of the party 

The rule possessio fratris &c. relied on by the Deft, can extend 
only to Cases where an actual possession can be had It would 
be unreasonable to carry it to Cases where pos'sion cannot be had 
which would be inconvenient & create confusion The cases 
for the Deft, came not up to this The last cited out of Cokes 
Inst, was governed by the Rem'r in the Deed And a Rem'r is 
different from a Rev'n 

The Donor never intended the Deft, should take anything in 
the Land He was not bom when the Deed was made Upon 
the Descent of this Rev'n to Orrill the Son it vested in him 
absolutely to all intents & purposes Otherwise it would be in 
abeiance which the Law will not suffer And this was much 
relied on The Deft, is neither heir to the Donee nor was so to 
the Donor when the Reversion happened In what right then 
can he claim 

To which it was replied 

A great deal of pains has been taken to prove a point which 
nobody denies that a Rev'n expectant upon the determination 
of an Estate tail may be aliened or devised If Orrill the Son 



BARRADALL'S REPORTS B115 

had disposed of the Rev*n in this Case after the descent upon 
him the present question would not have been made which 
seems indeed to be strangely misunderstood on the other side 
for it does not depend upon the reasonableness or unreason- 
ableness of the thing nor upon the power Orrill had to dispose 
which is admitted but upon certain fixed & settled rules of Law 
which govern descents If the reason of the thing was to govern 
abstracted from those rules I should be glad to hear a good & 
solid one assigned why the half blood should not inherit Yet 
it is upon that rule or principle that the Pit. can have any 
pretence of title And it is upon another rule viz. possessio 
fratris &c. that the Defts. Title depends 

Every one who has a fee simple either in pos'sion or reversion 
has a power to dispose but if he does not do it The Inheritance 
must go according to the rules of Law which govern descents 

Vid. Cro. Car. 411. 412. 

To say the rule possessio fratris &c. extends only to Cases 
where pos'sion can be had is a flat contradiction of the plainest & 
most positive Authority & some of the best in the Law In 
Ratcliff's Case it is expressly sayed that if the Inheritance be 
such of which an actual possession cannot be gained the half 
blood shall come in And as to any inconvenience or confusion 
that may be the consequence it wants pointing out for I cannot 
conceive any 

It is sayed the Case cited out of the Inst, is not parrallel 
because the Rem'r there was created by Deed It is true the 
Rem'r to the [108] husband is created by the Deed but then 
upon his death the Rem'r descended to his Son who took it by 
descent & not by Purchase And so after his father's death 
he was Ten't in tail with the Rem'r in fee expectant Where 
then is the difference betw. that Case & this. Here the Rem'r 
descended to him from his Mother In the Case cited the Son 
was Ten't in tail with a Rem'r in fee expectant which Rem'r 
descended to him from his father I know no difference betw. 
a Rev'n & a Rem'r in fee but in the manner of the creation A 
Rev'n is where the Owner does not part with his whole Estate 
Then it is sayed to revert or come back to him after the deter- 
mination of the particular Estate A Rem'r is where the Owner 
parts with his whole interest giving a particular Estate to one & 
the fee to another which is called a Rem'r And such Rem'r 



B116 VIRGINIA COLONIAL DECISIONS 

in fee will descend in the same manner as a Rev'n in fee. There 
is no kind of diff . betw. them as to the business of descent 

The disposition of the Law is doubtless as strong as the dis- 
position of the party but we say the Law disposes in our favour 
which is the point to be determined 

The Donor's Intention in the Deed is quite out of the Case 
We are contending about the Descent of the Rev'n & claim 
nothing under the Deed or that is disposed of by the Deed 

It's no good consequence that because the Rev'n descended 
to Orrill upon the death of his Mother which we admit that 
therefore it must descend from him to his Heir The Cases 
cited prove the contrary & clearly shew that a Rev'n expectant 
does not descend in the same course an Estate in pos'sion does 
There are other instances of this in the law If there be father & 
Son & the Son purchase land & make a lease for life & dies the 
reversion descends to his Uncle who dies the father cannot be 
heir to the Uncle of this reversion because he was never actually 
seised 1. Inst. 11. 6. And as to the Argum't that the fee would 
be in Abeiance if it did not vest absolutely in Orrill the Son 
Every Estate in expectancy may be sayed to be in Abeiance 
(Vid. Plunket & Holme 1 Lev.) for the word is derived from the 
French bayer to expect 1. Inst. 342. b. And there is no incon- 
venience that a Rev'n expectant upon an Estate of Freehold 
should be in Abeiance for the true reason why the Law will not 
suffer the fee to be in Abeiance (which I admit it will not 
except in some instances ex necessitate) is because there would 
want a Ten't to the Freehold Ag'st whom a praecipe might be 
brought But this cannot happen where the fee is expectant 
on the determination of an Estate tail because there is a Ten't 
of the Freehold viz. The Ten't in tail The rule in truth is 
only that the Freehold shall not be in Abeiance for there are 
many instances [109] where the fee may As in the Case of a 
Lease for life Rem'r to the right heirs of I. S. The fee simple is 
in Abeiance during the life of I. S. 1. Inst. 342. b. So if Ten't 
in tail grants all his Estate The Grantee has only an Estate for 
life of Ten^t in tail And the fee or Inheritance of the tail is in 
Abeiance during the life of Ten't in tail Lit. S. 650. 

Upon the whole tho* we are neither heir to the Donee nor was 
so to the Dornor when the Reversion descended from her Yet 
in as much as the Rev'n was only expectant by the rules of Law 
in Cases of Descent we are intitled to this Rev'n because we are 



BARRADALUS REPORTS B117 

now heir to the Donor & there never was nor could be such 
pos*sion as the Law requires to make the Sister that is the Pit. 
take as heir to her Brother 

Judgm't fr Deft, by the Opinion of Lee, Tayloe, Grymes & 
Carter 

Randolph, Custis & Robinson Fr Pit. 

Edwards vs. Bridger 

This was an Appeal in an Action of Debt from the County 
Court The Pit. had brought a former Action In which Judgm't 
was given ag'st him but it was not entered quod Querens nil 
capiat per billam This former Judgm't was pleaded in bar to 
the present Action There was a Demurrer to the Plea & 
Judgm't in the County Court ag'st the Pit. But the Judgm't 
was reversed here & the Pit. had Judgmt. for his debt 

The Court remembered a Case of this kind sev'l years ago 
where they had given the like Judgm't But note in the Case 
of Palmer & Word Oct. 1738 (which see postea Page 268) this 
same point was insisted on but not regarded by the Court 

CuRLE vs SwENEY Ejectment 

The Pit. being seised of a Lot of Land in the Town of Hampton 
abutting upon the river Hampton & so described in the Grant 
from the Feoffees of the Town Land to the Pits. Ancestor The 
Deft, in the Pits. Infancy upon a suggestion that he had by 
Industry gained some Land out of the River obtained a Grant 
from the Crown of a small parcel of Land to be made out of the 
River before this Lot & builds a House upon Posts directly 
before the Lot under which House the Water ebbs & flows So 
that [1 10] the Ground it stands upon is between high & low 
Water Mark The Grant from the Crown of which the Pits. 
Lot is parcel is bounded by the River or abutting upon it & the 
River is navigable 

The Pit. brings this Ejectm*t to recover the House a'fs'd 
built by the Deft, before his Lot 

The Q. is properly this when the King Grants Land bounded 
by or abutting upon the Sea or a Navigable river where the 
Water ebbs & flows Whether the Grantee has not a right to the 
Land betw. high & low Water Mark Or to any Land that may 
be gained out of the River 



B118 VIRGIl^^IA COLONIAL DECISIONS 

All Lands here axe held mediately or immediately of the 
Crown And so they are in England And therefore must have 
been first granted by the Prince to the Subject Now there are 
numberless Grants from the Crown in England bounded by the 
Sea River &c but no one I believe ever saw a Grant of Land 
betw. the high & low Water Mark Yet such Land may be 
parcel of the Mannor of a Subject 5. Co. 107. Sr. Hen Constable 
from whence I think it follows that by the Grant of Land abut- 
ting upon or bounded by a river the Grantee has a right to the 
Land or Soil betw. the high & low Water Mark 

I conceive too that if the Water leaves the Land or the Grantee 
by Industry gains Land out of the Water it belongs to him & not 
to the Crown 

It has indeed been a question Where the Salt Water has left a 
great quantity of Land upon the Shore whether the prince shall 
have it by his Prerogative or the Owner of the Land adjoining 
It is made a Quoere in Dier 326. b. & he refers to sev*l Authors 
But he cites a Case 43. E. 3. of the Abbott of Ramsey who was 
sued on behalf of the King for 40. a. of Marsh The Abbot pleaded 
that he held such a Mannor next the Sea where there was a Marsh 
which was sometimes lessened by the ilux & increased by the 
reflux And the title was found for the Abbott And the 
Reporter says P. 17. Eliz. in such a Case in the ExcheqV about 
Sandwick a Verdict was solemnly given ag'st the Queen 

But there is a Case in the Margin of the Book of the Corpora- 
tion of Rumney adj'd 8. Eliz. which is more express It is thus 
If the Sea marks are gone .so that it cannot be known whether 
there ever was Land there the Land gained from the Sea belongs 
to the King but if the Water covers the Land at the flowing & 
leaves it at the ebbing so that the Sea Marks are known if such 
Land is gained from the Sea it belongs to the Owner 

In this Case the Water ebbs & flows upon the Land claimed 
by the Deft. But if it was actually gained out of the Water by 
Industry it belongs to the Owner of the Land adjoining who 
is the Pit. It is plain then the King could not grant this Land 
which by Law belonged to the Subject & which he in effect had 
granted before The Defts. Grant is unusual & the first of the 
kind in this Country or I believe in any other subject to the 
Crown of England I might add further that this Grant was 
obtained in the [111] Lessor's Infancy And if Grants of this sort 
are encouraged No man who has Lands upon Navigable rivers 



BARRAD ALL'S REPORTS B119 

can be secure of the greatest advantage attending them viz. a 
Landing prospect &c. 

For the Deft. It was not attempted to support the Grant 
from the Crown but it was insisted that the Deed from the 
Feoffees, of the Town to the Pits. Ancestor did not take in the 
Land where the House stood for that the number of Chains 
mentioned in the Deed did not reach so far Which was admitted 
to be true 

But it was answered 

That the Deed was bounded by the River The Town was laid 
out upon the River And the Kings Grant out of which the Town 
Land was taken was abutting upon the River By which the Pit. 
had a right to the Land left by the River if any was really left 
but that in this Case there was none left for the Soil upon which 
the house stood was that upon which the Water ebbed & flowed 

And it was further urged to shew the inconvenience of allowing 
the Deft's pretensions that by such Practises as the Deft, had 
used there might not in time be a Landing place left to Hampton 
Town 

Judgm't Fr Pit. Fr. ioL Cur. 

Coleman & Ux'r vs Dickenson In Cane, 

Ja's Alderson & Ann his wife by Deed dated 10 July 1712 
reciting that Ann at her Marr. was pos'sed of 3 Slaves And that 
by the Law they were real Estate barg & sold the Slaves to one 
Hunter for 60 years if the said Ja's & the Negro's sho'd so long 
live In trust And to the use of the said Ja*s & Ann for their lives & 
to the use of the Surv'r if the Negro's sho'd so long live With this 
proviso that if Ann sho'd die before Ja's it sho'd be lawful for 
her by Will to dispose of the Negro's after his death And with 
this further proviso that if the Negro's had any Increase during 
the term that they sho'd be taken care of till they were fit to be 
removed from their parents 

The husband died first The wife who had made a Will before 
his death repubUshed it afterw — ds And by this Will she has 
taken upon her to dispose not only of the 3 Negro's mentioned 
in the Deed but also their Increase to the Pit. Eliza. 

The Q. is whether as the husband died first the wife had power 
by this Deed or otherwise to dispose of the Negro's or their 
Increase 



B120 VIRGINIA COLONIAL DECISIONS 

When this Deed was made it was the genl Opinion that a 
Womans Slaves did not vest in her husband by the marr. This 
was the construction of the Act of 1705 by which Slaves were first 
made a real Estate It will [112] however be allowed that this 
was a mistaken Opinion & a wrong Construction of the Act. 
The Explanatory Act of 1727. having declared that " where any 
** Slaves have been or shall be conveied given or bequeathed 
** or have or shall descend to any feme covert the absolute 
** property is thereby vested in the husband" 

After repeating these words I may venter to take it for granted 
that the Slaves of Ann Alderson vested in her husband by the 
marriage And it will scarce be pretended I presume that the 
husband's mistake as to his right which appears in the recital 
of the Deed did at all lessen or destroy that right 

From these premises these two conclusions follow 1. That 
the Wife can have no pretence of right but what she can derive 
from the Gift or disposition of her husband And 2. that as the 
husband had the absolute property in these Slaves So much of 
that property in them & their Increase as was not disposed of 
by the Deed now before us remained in the husband And upon 
his Death must go to his Representatives 

The business then is to see how far the property of these Slaves 
or their Increase is disposed of by this Deed 

It is scarce worth observing that this Deed is to be considered 
merely as the Act of the husband It is well known a feme 
Covert cannot make a Deed in any Case Except where she is im- 
powered by some particular Law or Agreem't so to do But as 
the wife here had really no Interest in the thing conveied her 
joining or not joining in the Deed cannot differ the Case 

The Deed then I conceive ought to be considered thus A hus- 
band conveys his Slaves to Trustees for 60 Years if he sho*d 
so long live To the Use of himself & his wife & the Surv'r for 
life With power to the wife if she died first to dispose by Will 
after his death I say nothing here of the second proviso which 
regards the Increase That I shall consider by & by 

What is there more in this Deed than a limitation to the hus- 
band & wife for life with a power to the wife to dispose upon the 
contingency of her dying in her husbands life time 

If this contingency never happened Can she have a right to 
dispose by virtue of this power Certainly no and that is truly all 
the question in the Case 



BARRADALUS REPORTS B121 

There is surely some difference betw. an absolute power & 
a limited one or a power that is to arise upon some future con- 
tingency If a man give his Ex'ors a power to raise a sum of 
money out of his Estate in case he leaves a Dau'ter This power 
cannot be executed if he leaves no Dau'ter because it is to arise 
upon that Contingency & not otherwise So here the power given 
to the wife is not a power of disposing at all Events but only 
upon the contingency of her dying in her husbands life time 

The words of the Deed are not only plain to this purpose 
but it was apparently the intention of the Parties for under the 
mistaken notion they were that the Slaves did not vest in the 
husband they [113] concluded that if the wif e su vived she 
would by Law have a power to dispose And therefore there could 
be no necessity to provide for that but only that she might dis- 
pose during the coverture if she died first. 

Thus neither from the words of the Deed nor the intention 
of the parties is there the least ground to infer that an absolute 
power of disposing was designed to the wife but only a power 
upon a contingency which not happening She had no power of 
disposing by virtue of this Deed And if she had none by the Deed 
she had none at all As I hope I have demonstrated 

Let us consider a little further the nature of this Deed. It is 
a Conv. to a Trustee for 60 years if the husband so long lived. 
This Trust & term then were to continue no longer than the 
life of the husband And so upon his death they both expired & 
determined And consequently the power which was to be exe- 
cuted during the Term must cease and be void Neither the Trust 
nor the Term nor the power given to the wife from the frame & 
nature of this Deed could possibly subsist after the husbands 
death 

As to the mistaken notion of the parties with respect to the 
right to those Negroes As that mistake could not alter or destroy 
the husbands right So neither can it be any Argum't to give 
this Deed a different construction or operation from what it 
would have had if the husband had known it perhaps if he had 
he never would have executed this Deed at all 

If therefore we regard the operation of this Deed in point of 
Law Or if we regard the intention of the parties in making It 
is plain the wife had no power of disposing but upon the con- 
tingency of her dying in her husbands lifetime And therefore 
her disposition to the Pit. is void 



B122 VIRGINIA COLONIAL DECISIONS 

Equity will often supply a defective excon of power But I 
never read or heard that a Coiut of Equity would create new or 
different powers from those created by the P'ties Or extend or 
enlarge them beyond what the words of the Deed or the intention 
of the P'ties would carry them Yet this is what must be con- 
tended for to support the Wife's disposition in this Case The 
power created by the Deed is upon a certain contingency which 
never happened And yet they will have it that the wife may dis- 
pose by virtue of that power. What is this but setting up a 
different power in the wife from that given her by the Deed 
As to the Increase of the three Slaves mentioned in the Deed 
we have been speaking of which are the other six Slaves claimed 
by the Pit. under the Will of Ann Alderson I really can't even 
conjecture what may be sayed in support of the Pits, title to 
them 

The Bill (whether designedly or not I can't tell) does not 
mention those six Slaves as the Increase of the three tho' I 
daresay they will be [114] granted to be such but only sets forth 
that Ann Alderson devised the three Slaves in the Deed & six 
others without shewing her title to them This is one of the 
Causes of Demurrer that it is not suggested she had any right 
to the Increase or to dispose of them 

I have already observed And I hope it will be granted that so 
much of the property of the three Slaves & their Increase as is 
not disposed of by the Deed remained in the husband the whole 
property vesting in him by the marriage 

Now it is plain from the whole tenor of the Deed as well as 
a particular provision it that the Increase were never intended 
to be within the Trust thereby created The term is limited for 
60 years if Jas. Alderson & the 3 Negros sho'd so long live So 
that if the three Negroes had died the whole Trust had deter- 
mined 

The proviso which gives the wife a power of disposing upon 
the contingency mentioned takes notice only of the 3 Slaves 
without saying anything of the Increase All which is sufficient 
to shew that they were never intended to be comprized within 
the Trust at all 

But there is a second proviso which puts the matter beyond all 
doubt By this there is an express provision concerning the 
Increase that they shall be allowed to remain with their Parents 
till they were fit to be removed 



BARRADALL^S REPORTS B123 

So that whatever the determination may be with respect to 
the wife's right of disposing the 3 Negro's I conceive the matter 
as to the Increase will admit of no doubt or question 

On the other side it was urged that the limitation of the Trust 
being to the use of the husband & wife for life & to the use of the 
Surv'r that the wife surviving was well intitled to the Slaves 
mentioned in the Deed And that the property of the Increase 
must follow that of the Parents 

And so it was decreed by the Court 

BucKNER vs. Chew & aL In Cane. 

The Case was shortly this Chew the Defts. father in 1707 
sold & conveied to the Pits. faV two parcels of* Land cont'g by 
estimation 2520a's be the same more or less And in the Deed 
of Conveiance were the usual Covenants in the case of purchase 

Great part of the Land was recovered from the Pit. by an 
elder title 

The Bill suggested that Chew after the Conveiance to the Pits. 
[115] fa'r gave to the Defts. (some of them his Sons & others 
married to his Dau'ters) considerable Estates & afterw'ds died 
Insolvent And the End of the Bill was to have a discovery of the 
Estates given to the Defts. And that the same might be subjected 
to satisfie the Pit. the value of the Land he had lost 

The Defts. by their Answ'rs insisted that the Estate given to 
them by their fa'r was so given before the Pit. was evicted & so 
not done with intent to defraud the Pit. And that the Conveiance 
from Chew being of 2520 a's more or less the Pit. could have no 
right to a remedy for the deficiency nor unless evicted out of the 
whole 

Two of the Defts.J. C. one of the Sons & Johnston who married 
one of the dau'ters also pretended by their Answ'rs that the 
Estate given to them was in consideration of Marriage of which 
some proofs were taken There were also Some proofs concerning 
the value of the Pits, loss & of the Estate given the Defts. 

Barradall Fr. Pit. The points in this Case are two 1. Conv. 
being more or less whether we can have remedy for deficiency. 
2. Estate given to Defts. before eviction whether subject to 
Plt.s Demand 

If these in Plt.s fav'r 3. How far Plt.s loss & Estate in Defts. 
hands are ascertained. 



B124 VIRGINIA COLONIAL DECISIONS 

1. Point a strange one — common form of Deeds — words 
of course or at most intended to supply only little mistakes 

In construction of Deeds Intention to govern What was con- 
tract & intent here 

Grantor in cons, of ;f.l20 St. conveys two parcels of Land 
containing by Estim. 2520 a's be the same more or less Coven'ts 
to Warrant premes & every part thereof — that he is seised 
in fee & has good right to convey — that Grantee shall quietly 
enjoy and that he will make further Assurance of all & singular 
before granted prem*es 

This usual form & Gov'ts of purchase for va. cons. No instance 
that (more or less) must oblige purchasor to be satisfied with 
half he bought. 

Here is a val. cons, equivalent to Land sold at time 

Reasonable to suppose so much was agreed for 

Manner of penning Gov'ts Shew intent further 

If Gov'ts not intended to extend to quantity Would have been 
exception. 

Pannel's Deed to Ghew Shews what Ghew intended to purchase 
& the same he intended to sell 

These Circumstances prove contract & intent More or less 
words of course added currento calamo can't controul plain 
Agreement 

If words were unusual something might be inferred 

Notion new No Authority. 
116] Universal concern to purchasors — If but 100 a's we 
must have been contented according to Doctrine of Deft. 

Introductory of fraud 

2. point. Whether the Estate given Defts. liable being before 
eviction 2 of Defts. J. G. & Johnston pretend to something of 
a cons, viz marriage It will be therefore 'proper to consider 
1. as voluntary Then the pretended cons. 

As voluntary fraudulent & void ag'st Gred'rs. 
By Common Law & old Stat, fraudulent Gifts to deceive 
Cred'rs void 13. Eliz 5 useful Stat, made [sic\ . 

For this point see Prec. Ch. 521. Case of Parslow & Weedon cited It should 
seem by that case that a voluntary disposition of lands even to a stranger is good 
ag't a bond Cred'r Sed. 2. And Note it is sayed not to be within Stat, ag't fraudu- 
lent devises w'ch is true. But still may be within Stat's ag't fraudulent com's 
ee also. Eg. Ab. 149. 7. S. C. 

Preamble to this effect For avoiding & abolishing of feigned 
covinous & fraudulent Feoffm'ts Gifts &c. devised to delay 



BARRADALL'S REPORTS B125 

hinder or defraud Cred'rs & others of their just & lawful Actions 
Suits Debts Acco'ts Damages Penalties &c. 

Enacts that every Feoffm't Gift &c. by writing or otherwise 
made to or for any intent or purpose before declared or ex- 
pressed shall (ag'st the person whose Action Sec. are shall or 
might be any wise disturbed hindered delaied or defrauded) 
be void &c. Any pretence colour or feigned cons, notwithstand- 
ing 

Proviso not to extend to Gifts upon good cons. & bona fide 

Act penned with Care & caution 

Every voluntary Gift by Person in debt fraudulent within 
this Stat. 

Law supposes so tho' perhaps not done with direct intent 
to defraud 

Cases Holcraft Di. 294. b. Marg. Fletcher & Lady Sedley 
2. Vem. 490. Sr. Anth*o Bateman 1. Mod. 76. 

Obj. Here is a Gift made before Pit. damnified 

Q. then is whether this differs the Case I conceive not 

Plain. 13. El. had in view Cases of this sort Words are to 
defraud Cred'rs & others of their Actions Suits Debts Damages 
&c. 

In Pauncefort & Blunt cited in Twine 3. Co. 82. resolved 
it extends not only to Cred'rs but to all others who have cause 
of Action or Suit Penalty or Forfeiture 

Sed Vide. Talbot. 

Here we had cause of Action immediately upon Gov't that he 
had a good title Such Actions not new here Washington & 
Wyat But if that was not the Case We are within the provision 
of the Act Words are ** Ag'st P.sons whose Actions &c. are 
shall or might be anyways delaied hind'red or defrauded 

Now that we have cause of Action can't be denied & our 
Action is hind'red & defrauded by these Conveiances 

Suppose a Bond for paiment of Money at a future Day 

Act always construed liberally 

Pauncefort & Blunt before cited One Indicted of recusancy 
[1 17] Doctrine on the other side encouragem't to fraud Men 
will not be afraid to dispose of bad titles 

General concern to purchasors 

Law implies a Trust in Cases of this sort Twine 81 

Consider now Case of J. C. & Johnston 



B126 VIRGINIA COLONIAL DECISIONS 

Johnstons says upon a treaty of Marr. with the Grantors 
Dau'ter in 1723 he promised hina as a portion 1000 a's of Land & 
a Negro boy worth ;^.150. That he rec'ed some things which 
he mentions but not near the value 

No proof of this promise but seems contradicted by two Wit- 
nesses Nich'o & Ehz. Hawkins 

Defts. Oath no Evidence Would not be so ag'st Grantor nor 
cons, a Cred'rs Impossible to prove negative viz. No such prom- 
ise Circumstances alone are all that can be expected If Defts. 
Oath to prevail singly Act easily evaded Dangerous 

Less reason here because Answer contradicted in other points. 

He says he had only two Negros We prove by 3. Witn's N. 
Hawkins Franklin & Graves that he had 3. & by Trible & Frank- 
lin that he had 220 a 

J. C. says his fa'r being indebted to one Cary told him if he 
would help to pay that debt he would give him 335 a of Land & 
4 Negro's That he paid £25, his fa'r in 1724 put' him in pos'sion 
& in 1728 in cons, of H. B.s consenting to Defts. marr. his 
Dau'ter by Deed made same over & 2 Slaves more 

No proof of this Money being paid which might easily be had 

Discourse betw. Chew & H. B. proves Estate was given before 
marr. & before that discourse So could not be to induce H. B.s 
consent We have Deed. cons, only ;^8. & natural Affection 
Defts. Oath not to prevail ag'st this 

But let us consider this in the strongest light for Defts. In 
one case fa'r gives his dau'ter a portion but no Settlem't made 
In the other he gives his Son an Estate to procure a good match 
but no Settlem't neither 

It is Settlem't only can make a val. cons, for then they are in 
nature of Purchasors Settlem't after marr. not good ag'st 
Cred'rs Upton & Bassett Cro. El. 445. Cro. Ja. 158. 

2 Bac. Abr. 608. 

If this allowed easy for a man to cheat his Cred'rs 

Marr. only val. cons, where Settl'mt 

But there being no Settl'mt the marr. makes no difference but 
the Gifts are equally voluntary as if there was no marr. in the 
case 

As to Johnston I say he has not proved any such promise 
on his marr. as he pretends Or if there was As he made no 
Settl'mt he is not to be considered as a Purchasor 



BARRADALL'S REPORTS B127 

• 

As to J. C. he proves nothing of the money he pretends to have 
paid. Or if he did he could only be a Purchasor pro tanto. As 
to his marr. it is a meer farce to insist upon it But there is no 
proof the Est. [118] was given in Cons, of that Marr. The Deed 
of Conv*e proves it was upon another cons. viz. natural love & 
£%. & that ought to prevail before Defts. Oath If there was 
proof of the ;£".8. being paid he might be a Purchasor for so much 
But as the Deed contradicts his Ans'r as to the quantum paid 
& there is no proof of either in such an incertainty the Court 
must reject both as. I hope they will 

The rule laid down in Twine's Case is that a Gift which defeats 
others sho'd be made on as high & val. cons, as the things which 
are thereby defeated are according to this rule nothing but 
money can be a val. cons, to defeat a debt And then the marriages 
are nothing to the purpose 

If the Court is of Opinion that the Estate in the Deft.s hands 
ought to be subjected to the Pits demand It will be proper in 
the next place to see what the loss & damage of the Pit. is. 

Upon the proofs by moderate computation it was estimated 
at two hundred & forty pounds 

If the Court are not satisfied with the computation they 
must direct a trial at Law on a quantum damnifkatus 

The next thing to be considered is in what manner the Estate 
in the Defts. hands is to be made liable And I take it the course 
of Equity is to decree the Estate to be delivered up & sold to 
satisfie for the Grantees are considered meerly as Trustees as 
has been already observed 

But if this shall be thought severe as the Defts. have settled 
upon the Lands we hope they shall be accountable for the full 
value now for if the Estate was in the hands of the Heir or 
Adm*or we sho'd recover according to that value 

The first point was only spoke to by the Defts. Upon which 
A great majority of the Court were of Opinion that the Pit. 
ought not to be relieved as the Conveiance was of so much more 
or less unless the Pit. had been evicted out of the whole Which 
I think was a strange determination 

Knight vs. Triplett In Cane, 

The Deft, made a purchase of certain Lands Of part whereof 
Pit. had a Lease for Years which was not recorded The Deft. 



B128 VIRGINIA COLONIAL DECISIONS 

had notice of this Lease before his purchase Yet brought an 
Ejectment & had Judgm't at Law And this Bill was brought 
to be relieved ag'st this Judgm't And to establish the Lease 
ag'st the Deft, in regard he had notice of it [119] and so he was 
not deceived but with respect to him it was the same as if it had 
been recorded. 

To this Bill the Deft. Demurred And to support the Demurrer 
it was argued that by the Act of Assembly of the 8. Geo. 2. c. 6 
this Lease not being recorded was void ag'st a Purchasor. 

The words of the Act are to this purpose All Deeds &c. 
whether for passing Freehold or term of years not recorded — 
shall be void as to all Cred'rs & subsequent purchasors 

It is a rule that Equity never decrees ag*st an Act of Parl't 
which indeed would be transferring the Legislative power 

2. & vide 1 W'ms 620. 

It is true this Act was made to prevent Purchasors being de- 
ceived & here the Purchasor had notice & so could not be de- 
ceived 

But I answ'r the Act hats made all Deeds not recorded void & 
there is no exception where the Purchasor has notice. And as the 
Act makes no exception neither can a Court of Equity 

This notice can never make that good which the Act has 
declared void Besides Deft, might think he might safely pur- 
chase notwithstanding the Lease as the Act had declared it void 
& that is the truth 

In this view it must bring a strange hardship upon the pur- 
chsor He is informed of an Incumbrance Takes advice of a 
Lawyer who tells him the Incumbrance can't affect him because 
an Act of Pari, had declared it void And yet afterw'ds this 
Incumbrance shall be set up under pretence of notice 

There is no instance of this in the Law but there are Cases 
exactly parrallel ag'st it 

2. & vide Blades vs. Blades Abr. Ca. Eq. 358. 

By the Stat. 27. El. 4. ag'st fraudulent Conveiances it is 
Enacted that all Deeds made to defraud or deceive Purchasors 
shall be void This is very like our Act — All Deeds not recorded 
shall be void 

A man makes a purchase & has Notice before of a Deed that 
was fraudulent within this Stat. And it was adj'd that he should 
avoid the fraudulent Deed notwithstanding the notice for this 



BARRADALL'S REPORTS B129 

reason Because the Act had by express words made it void & 
his notice could not make that good which the Act had declared 
void. Slandens Case cited in Goochs 5. Co. 60. b. 

The Case of Porter & Jones was much harder than this for 
there was a purchasor for val. cons, without any kind of remedy 
whereas the Pit. may have remedy for Damages ag'st Thompson 
But there the Court would not relieve because this very Act had 
declared the Deed was not binding 

Ante page 8& 

The hardship can never induce the Court to decree ag'st a 
positive Law Besides the hardship is not so great as there is a 
remedy ag'st Thompson And the hardship may be greater upon 
the purchaisor [120] who has paid the full value of the Land 
upon a supposition the Pits. Lease was void & who purchased 
under the sanction of the Act 

The Demurrer was allowed & the Bill dismissed with Costs. 
Sed 2. 

APRIL COURT MDCCXLL 

Senior vs, Morris 

Error to reverse a Judgm't of the County Court of Caroline in 
an Action of Debt brought there by the Deft, ag'st the Pit. 
Senior 

The Pit. below declared on a Bond in the Penaly of £40. 
The condition of which was to stand to the Award of Fleming & 
Baber arbitrators provided they shall agree & if they disagree 
then to the award of an Umpire to be chosen by them 

The Deft, craved Oyer & pleaded no Award The Pit. replied 
that the Arbitrators took upon them the burthen of the Award 
but disagreeing in several matters they chose one Scott an 
Umpire And that they & Scott having taken upon them the 
burthen of the Award they made an Award which is set forth 

It is a Maisterpiece of Nonsense 

The Deft. Demurred Judgm't for the Pit. & a Writ of Enquiry 
The Jury gave ^5.12.8. Dam's 

Judgm't entered for the Dam's & not for the penalty of the 
Bond 

On Demurrer Judgm't ought to have been given for Deft. 

Obj. 1. The Award being made by the Arbitrators & Umpire 
is not according to the Submission or the power given them 



B130 VIRGINIA COLONIAL DECISIONS 

The power given to the Arbitrators is to determine if they 
can agree If not they are to chuse an Umpire 

The Award recites that the Arbitrators could not a^ree Yet 
they join in making the Award 

Upon their disagreement their power was determined & the 
Umpire was solely to determine 

The Arbitrators & Umpire are different Judges & cannot have 
a concurrent jurisdiction 1 Sid. 455. Coppin & Humard 1 Dam. 
540. 2. 

There never was an instance of such an award 

Arbitrators can't determine part & Umpire other part unless 
expressly so provided 1. Ro. A. 262. 7. 8. Danv. 542. 

[121] Umpire in the common signification denotes a person 
that is to make an end if others cannot 

It is true if a submission be to four & to the Umpirage of J. S. 
they may all join but it is otherwise if their power is divided 
1. Bui. 184. which is in point 

Obj. 2. The Award is uncertain 

An Award is in the nature of a Judgment & ought to be certain 
Danv. 543. 1. & Notes ... & ought to be wholly decisive. 

Can there be say'd to be certainty in Nonsence 

Here is nothing actually awarded It is say'd they agree the 
Gaming to be intirely false Gaming and not axiything to be re- 
covered that was supposed to be won by gaming & that the 
said Senior pay all Costs &c. 

Nothing certainly awarded. Not that Suits shall be dismissed 
Nor is it say'd what Costs Senior shall pay It does not put an 
end to the Controversie No Rel. . to be executed. Ex parte. 

An Award to pay Costs of such a Suit generally not good 
1. Sal. 75. Otherwise if such as Master shall tax [sic] 

But here it is not sayed the Costs of what Suits 

Obj. 3. Judgm't wrong should have been for the penalty &c. 

Judgm't reversed 

Smither vs. Smithers. Lessee App. from Glo'ster 

Ejectm't for the moiety of 864a of Land A special Verdict 
is found Upon which the case is ** John Smither seised of the 
said 864a in fee & having issue 8 Sons devises as follows ** I give 
*' to my Wife all my full & whole Estate moveables & immove- 
" ables so long as she lives the wife of John Smither And at her 



BARRADALUS REPORTS B131 

** death All to be equally divided among their Children only 
'* Moses Smither I give & bequeath besides one young Cow& 
** more I give & bequeath to my Son Ambrose one feather bed & 
** furniture & one young Mare & then the full & whole Estate 
* to be equally divided amongst them under before as the Land 
" & all " [sic] 

The Sons entered & were seised & 3 of the younger Robert 
Richard & Ambrose sold & conveied their right to their Bro'r 
Moses who is dead & the Lessor is his Heir The Deft. John 
is the eldest Son of Testor. 

The question in point of Law is Whether the Sons by the 
devise to them have an Estate in fee or for life only 

But the Verd't is very imperfect It is not found that the 
testor's wife is dead And by the words of the Will the Sons can 
have nothing till after her death The Lessor cannot therefore 
have Judgm't on this Verd't. 

[122] Then the County Court have given Judgm't for a Moiety 
of the 864a whereas if the Sons take an Estate in fee it is plain 
the Lessor is not intitled to so much for Moses her fa'r is ex- 
pressly excluded by the Will She has only the right of 3 of the 
other Sons There were 7 besides Moses She cannot then be 
intitled to more than 3 sevenths The County Court have there- 
fore certainly erred in giving Judgm't for a Moiety And the 
Judgm't must be reversed 

But I conceive the question in point of Law is ag'st the Lessor 
And that the Sons have only an Estate for life by the devise 
above & that the Reversion descended to the heir at Law the 
Deft. 

The testor devises his full & whole Estate moveables & im- 
moveables to his wife for life if she continued his Widow for so 
it must be understood And at her death All to be equally 
divided among their Children Then gives some particular 
Legacies & concludes thus Then the full and whole Estate to be 
equally divided amongst them under before as the Land & 
all. 

These are all the words of the Will that concern the present 
question By the first words " his full & whole Estate moveable 
& immoveable " there is no doubt but his Lands will pass And 
so in consequence they will by the word all in the devise to the 
Children but then there are no words to shew what Estate or 
interest in this All the Children are to take It is only to them 



B132 VIRGINIA COLONIAL DECISIONS 

to be equally divided No mention of heirs or any other word 
to shew the testor intended an Estate of Inheritance or any 
more than an Estate for life As to the words ** equally to be 
divided*' they import no more than that the Children shall hold 
separately but do not shew how long they shall hold Nor is 
there an)rthing in the latter part of the Will that shews any 
intention to give an Estate of Inheritance to the Children or 
more than an Estate for life the words import no more than 
what was sayed before ** My full & whole Estate is to be equally 
** divided between them under before as the Land & all.*' The 
words (under before as) are insensible but the whole clause 
can import no more than this My full & whole Estate to be 
equally divided as before the Land & all So that it is only 
repeating what was sufficiently expressed before with this 
difference only that the Land was not expressly mentioned before 
tho' it was sufficiently implied by the word immoveable There 
is nothing here any more than in the former part of the Will to 
shew what interest or Estate in the Land the Children shall 
have 

It is a common doctrine & not to be denied that the intention 
of the Tes*tor is the rule for expounding provided this intention 
be sufficiently expressed in the Will & is not contrary to the rules 
of Law but where the intent is not plain the same construction 
is made of Wills as of Deeds Wilds Case. 

Upon this account the Law dispenses with all form in Wills 
Nor are the saAe words necessary to create an Estate of Inherit- 
ance upon a Will as upon a Deed. Yet there must be some word 
or expression in the Will to shew a tes'tor intends such an Estate 
Or else it will no more [123] pass by a Devise than it will by a 
Conveiance 

And I take it to be a settled rule in the construction of Wills 
that if a man devises his Lands or all his Lands to another with- 
out more or without adding some word whereby it may appear 
he intended more than an Estate for life that only an Estate 
for life passes by such a Devise 1. Sal. 235. 

Barry & Edgworth Eq. abr. 178. agr'd 

The words here are ** All to be equally divided among my 
Children " Neither the word (All) nor the words (equally to 
be divided) shew any intent that the Children should have longer 
than for life The word (All) can only import All the particulars 
before specified that are given to the wife as I shall shew more 



BARRADALL'S REPORTS B133 

fully presently And (equally to be divided) import only that they 
shall hold separately but not how long as has been adjudged in 
many instances 

A man devised Lands to his Sons & Daughters to be equally 
divided And held They had only an Estate for life & not in 
fee for the equal division does not go to the continuance of the 
Estate but to the several occupations 1. Ro. Abr. 834. 13. By 
Coventry L*d Keeper upon advice with Justice Jones who cer- 
tified the Law to be so. 

A man having three dauters devised his Land to his wife for 
life & after his death to his three daughters to be equally divided 
Adj'd that his dauters had only an Estate for life King vs. Rem- 
ball l.Ro. Abr. 834. 1. 

This is exactly the Case here 

One devised all his Lands & Goods after his debts & Legacies 
paid to R. T. & M. his Children to be equally divided between 
them Adj*d only an Estate for life passed to the Children Dickens 
vs. Marshall Cro. El. 330. Mo. 594. pi. 804. S. C. 

These Cases sufficiently prove that the words equally to be 
divided do not enlarge an Estate given but refer only to the 
several occupation But then here are the Words my full & 
whole Estate in the first part part of the Will in the Devise to 
the wife And also the same words with the addition of Lands & 
all in the latter part of the Will And these are the words if any 
that can possibly carry a fee But I conceive they cannot by 
any reasonable intendment or construction in this Case 

I shall readily agree that if a man devises All his Estate or his 
full & whole Estate as here or all the residue of his Estate with- 
out more that a fee will pass by such Words And this is all that 
can be collected from the great Case betw. the Countess of Bridg- 
water & the D— ss of Bolton 1. Sal. 236. & 6. Mod. 106. Tho' 
in that Case It was not those words alone which influenced the 
Opinion of the Court There was a power given by the Will to the 
E. of Bridgwater the Devisee to give to his Children as he thought 
convenient which further evinced the tes*tor intended a fee 

But I conceive a great difference betw. a Devise in that manner 
& this now before us 

It is certain that the word Estate in a Will may sometimes 
[124] comprehend both the thing & the tes'tors interest in it 
but it is as certain that it sometimes signifies only the thing & 
not the interest of the tes'tor in that thing 



B134 VIRGINIA COLONIAL DECISIONS 

Where a man gives all his Estate without more it is reasonable 
to suppose he intends both the thing & the interest but where 
a man gives all his Estate for life There it is plain he can't 
intend all his whole interest & therefore Estate in that case can 
be intended only of the thing 

In the Case of Hanchet & Thekwall 3. Mod. 104. the Devise 
was thus I give & bequeath to my Son Nich my Houses in West- 
m'r And if it please God to take away my Son Then I give my 
four dau'ters share & share alike Here the word Estate re- 
ferring to the Houses it was held & agreed that the tes'tor could 
not mean his interest but only the Houses & that therefore by 
those words the dau'ters took only an Estate for life 

Now in this Case I apprehend it to be extreemly plain that 
the tes'tor by the word Estate meant only his Lands & Goods & 
not his interest in them- He gives his full & whole Estate move- 
ables & immoveables to his wife for life I would ask what Idea 
it can be supposed the tes*tor annexed to the term Estate here 
Certainly he could not mean his interest in his Estate because 
he gives it to his wife for life only He must then understand 
by it the thing only which indeed he hats further explained by 
adding the words moveable & immoveable And it is in effect 
no more than if he had sayed I give my Lands & Goods to my 
Wife for Life. 

Then follows after my wife's decease all to be equally divided 
among my Children All what ? Why all his Lands & Goods or 
his Estate moveable & immoveable for they are the same Not 
all his interest in the lands & goods The word All must neces- 
sarily refer to the things the particulars before specified 

And it appears by the case of Dickens & Marshall before cited 
that where a man devised All his Lands & Goods after his debts & 
Legacies paid to be equally divided among his Children that 
they had only an Estate for life And the same point appears in 
Pettywood & Coke Cro. El. 53. post. 

The latter words in the Will are the same in substance with 
those that go before. After giving some legacies he says Then 
the full & whole Estate to be equally divided among them 
(under before as) Land & all Now what can be the full & whole 
Estate meant here but that he had mentioned before & given 
to his wife When a man makes use of the same expression twice 
in the same Will it is reasonable to suppose he means the same 
thing in both places It is I think beyond all question that by 



BARRADALL'S REPORTS B135 

the words full & whole Estate in the devise to his wife he could 
mean only the thing that is his Lands & Goods & not his inter- 
est in them And must we not then suppose he meant the same 
thing in the latter part of his Will The insensible words ** under 
before as '' which I think must be understood as before plainly 
refer to the former devise If then the former Devise does not 
carry a fee Neither can this And here by the addition of the 
Words ** Land & all '* I think it is still further [125] evident 
that by Estate he meant his Land & not his interest in it And if so 
there are no words to give the Children more than an Estate for life 

If it be objected that the tes'tor perhaps might think that by 
giving all his Lands & Goods to his Children in fee would pass I 
answer a tes'tors intention is to be collected from the words of 
his Will & not from suppositions & imaginary notions The 
Law gives a favourable interpretation to Wills upon a supposi- 
tion that they are made in a Mans last moments when he hats 
not opportunity for good advice but we are not for this reason 
to make any construction that cannot be fairly collected from 
the words of the Will 

When a Man gives all his Lands & Goods to his Children & 
sayes no more It is reasonable enough to suppose he intends 
them a fee in the Lands but as there are no words to manifest 
that intention they can take only an Estate for life And the 
Devise here is no more in effect It is true the word Heirs is 
not necessary to carry a fee as it is in a Deed but there must be 
some words as forever the word Assigns or the like to shew 
more than an Estate for life was intended In this Case the 
Devise is only to the Children to be equally divided And as 
those words do not enlarge the Estate there are no other words 
that can 

I will mention one Case more where we have the words all & 
the words equally to be divided And yet the Devisees were 
Adj'd to have only an Estate for life. It is 

Pettywood & Coke Cro. El. 53. 1. Leon. 129. 193. & 3. Lev. 
180. s. c. which was thus a man seised of 3 Messes & having a 
wife & 3 Children Rob*t Christian & Joan devised all his Messes 
to his wife for life Rem'r of one to Rob't & his Heirs of another 
to Christian & her Heirs & of the third to Joan & her heirs. 
And if any of them die without issue Then the other surviving 
shall have totam illam partem All that part betw. them to be 
equally divided 



B136 VIRGINIA COLONIAL DECISIONS 

Robt. died without issue Joan survived And it was held that 
she had only an Estate for life in Rob'ts part notwithstanding 
the words All & equally to be divided 

I shall conclude with a known rule of Law that the Heir is to 
be favoured & especially in doubtful Cases We claim under the 
Heir The Case at best is but doubtful whether the tes'tor 
intended a fee to his Children And therefore I hope the Court 
will not disinherit the Heir whom the Ancestor is always pre- 
sumed to favour without a manifest intention appearing to the 
contrary 

Judgm't affirmed viz that the Sons took a Fee 
Vid Mercers Notes where Francis fr Appellee cited sev'l Cases. 

[126] Nelson vs. Seayres 

Case & declares that one Edw. Seayres deced. the Defts. fa*r 
being indebted to the Pit. in ;^.220. St. & ;^17 . . 12 . . 2 Cur. 
the Deft on the 10. Apr. 1733. in cons, that the Pit. would trust 
the Defts. fa*r for more money & Goods promised to pay not 
only the said ;^220 St. & ;f 17 . . 12 . . 2. Cur. but all other Sums 
the Defts. father should afterwards become indebted (in case 
his fa'r did not pay the same) when he the Deft, should be 
thereunto required And avers that trusting to this promise 
betw. the said 10. April & last of Jan'y he lent Money & sold 
Goods to Defts. fa'ramount'g to ;f .112 . . 17. St. & ;f316 . . 16 . . 
6. Cur. besides the money he was before indebted & that Edw. 
Seayres in his life time did not pay ;^221-16-4. part of the said 
money of which the Pit. gave notice to the Deft. May 1. 1737. 

The Deft, has pleaded the Act of Lim viz that the cause of 
Action did not arise within 5 years The Pit. has replied that 
it did 

It is certainly more than five years since the promise was 
made but the Cause of Action did not aiise on the promise 
The Deft, did not undertake to pay at all events but only if his 
fa'r did not of which he must have notice & a request be made 
to him before he could be liable 

The Cause of Action here could not arise till notice & request 
for the Deft, could not know that his fa'r had not paid till such 
notice & request And I think it must be agreed that if Pit. had 
not alledged notice & request in his Decl. he could not have 
maintained this Action 

Notice is always necessary where the matter lies in the breast 



BARRADALL'S REPORTS B137 

of the Pit. & not of the Deft. And if notice & request are 
necessary to support the Pits. Action the consequence is plain 
that he could have no cause of Action till such Notice & request 

The Defts. undertaking in this Case is a special one To pay 
if his father did not The Pit. could not have brought an 
Action on this promise immediately nor till there was a failure 
by the faV The promise is what we call executory Some- 
thing future is to happen or be done before any Cause of Action 
can arise 

If a man promises for a val. cons, to pay a Sum of Money in 
case A & B are married Here the Cause of Action cannot arise 
till the Marr. And tho* the marr. be 20 yrs. after the promise 
the Action will lie 

The Son in this Case gives the fa'r a genl Cred't he becomes 
his Security to pay for all Goods & money the fa'r shall take or 
[127] receive of the Pit. No time limited when the Goods or 
Money shall be received Upon the faith of this promise there 
are dealings for 2. or 3. yrs. Surely in any view it must be 
allowed that the cause of Action did not arise till the end of the 
dealings And we have sued within 3. yrs. from that time 

It is a rule that the Stat, can be no bar till the Pits, cause of 
Action is compleat 

The dog of A. killed some of B. sheep A. promised in case 
B. would not sue him for the Sheep to make him a recompence 
upon request Several yrs. after B. did request & A. refused to 
pay Upon which B. brought an Action A. pleaded the Act 
of Lim. it being more than 6 yrs. since the promise But held 
not good for the cause of Action did not arise till the request 
Shutford vs. Borough Godb. 437. adjd. And there sayed If a 
promise is made to pay ;^10. when a man marr. or comes from 
Rome tho* his marr. or return be 10 yrs. after he may have his 
Action for the Cause of Action is not compleat nor does arise 
till the Marr. or return 

Assumpsit in cons, that the Pit. had d'd a Deed to the Deft, 
he promised to redeliver it upon request & alledges a request. 
Deft, pleaded he did not promise within 6 yrs. & upon Dem. 
plea held ill because Action did not arise on the prom but on the 
request 1. Lev. 48. Webb vs, Martin. 

Assumpsit in cons, that the Pit. at Defts. request would 
receive A & B. into his House as Guests & Diet them the Deft, 
promised &c. The Deft, pleaded he did not assume within 



B138 VIRGINIA COLONIAL DECISIONS 

6 yrs. & upon Dem. held ill for it is not material when the prom 
was made but when the cause of Action arose 2. Sal. 422. Gould 
vs. Johnson 

The Defts. Lawyer very well knew he could not plead Non 
ass. & has pleaded very properly but this case shews that where 
the duty arises on a cons, executory or future the Cause of 
Action does not arise from the prom but from the performa of 
what we call the meritorious cause 

To apply the last Case the Action did not arise on the prom 
but either from the delivery of the Goods or the request 

If from either of these we have sued within time 

In Trover the Cause of Action does not arise on the Trover 
but from the Conversion And therefore if a Trover be before 
6 yrs. & a Conversion afterw'ds And Action is brought within 
6 yrs. after the Conversion the Stat, will not bar. Far. 99. 
Wortley Montague ag'st Lord Sandwich. 

This Case was Compromised 

[128] OCTOBER COURT MDCCXLI. 

Hill & Ux'r. Ex'x Clopton vs. Henry & Ux'r Adm'x Syme 

Appeal 

The Pit. declares upon an Ind. Ass. for £2. 2. 9. & 837 lbs. Tob'o 
due by Intestate Syme to the Testator Clopton 

The Deft, pleads that Clopton made his last Will & Test in 
Writing & appointed Syme one of his Ex'ors which said Win 
was proved as the Law directs to be the last Will of Clopton ill 
the Court of New Kent by pretext & reason whereof the said 
Syme was discharged of his said Debt And prays Judgment if 
Action 

They also plead nil debet & non Ass. infra 5 annos. Upon these 
two last pleas there were issues & a Dem*r to the first 

Upon arguing the Dem'r the County Court was of Opinion 
that the plea was not sufficient to bar the Pits. Action And 
upon the issues the Jury found for the Pits. £9. 2. SH dam's 
The Defts. have Appealed 

The only question here is whether the Defts. plea be a good 
bar And I hope to shew it is not either for the matter or the 
manner of it The matter of the Plea is shortly this. That 
Pits, tes'tor made a Will & appointed Defts. Intest. one of his 



BARRADALL'S REPORTS B139 

Ex'ors And that the Will was proved to be the Will of the 
Tes'tor in due form of Law. 

It is insisted that this making the Intest. an Ex*or is a dis- 
charge of the Debt. 

It is a common doctrine that where the Debtee makes his 
Debtor Ex'or the Debt is extinguished But this rule is liable 
to several exceptions As 1. where the Ex'or dies before he proves , 
the Will 2. Where the Exor refuses before the Ordinary For 
the rule of Law is founded on these reasons 1. that a man cannot 
sue himself 2. that the same hand being both to receive & pay 
it amounts to an Extinguishm*t Which reasons do not hold 
where the Ex'or dies before he prooves the Will or where he 
refuses 

The making the Debtor Ex*or amounts to paiment & a release 
but if the Debtor will not accept the Ex'orship it can have no 
operation for You cant force a man to accept a Rel. ag'st his 
Will per Holt Sal. 307. 

Here it does not appear that Syme proved the Will or ever 
Administered the fact must be taken as it stands upon the 
pleadings It is only sayed that Syme was appointed an Ex'or 
& that the will was proved in due form but it is not sayed that 
Syme proved it. A Will may be proved per testes & yet the 
Ex'or refuse If Syme did not prove the Will he was not the 
person intitled to receive & so falls not within the reason of the 
rule of a Debtee making his Debtor Ex'or amounting to a 
Rel. 

[129] Obj. But here Syme was only an Ex'or with others 
And tho' it be not pleaded that the other Ex'or proved the Will 
it appears sufficiently by the Record the Pit. suing as Ex'trix. 
And where the Debtor & others are made Ex'ors & the other 
Ex'or proves the Will but the Debtor does not the Debt is extin- 
guished So it is if the Debtor refuse & die before the other 
Ex'ors for he might come in notwithstanding this refusal 

All which must be admitted And if it appeared to the Court 
that the Will proved by the Pit. & the Will mentioned in the 
Plea wherein Svme was appointed Ex'or were the same the 
Argum't would be conclusive but I conceive it does not 

This Case as I have sayed must be taken as it stands upon 
the pleadings The Plea is no more than that Clopton made a 
Will & Syme one of his Ex'ors & that that Will was proved 

Now it will scarse be denied but that a Man may have two 



B140 VIRGINIA COLONIAL 'DECISIONS 

Wills & several Ex'ors Cur. Went. 12. Which appears by the 
Case of Kitchen & Bassett 2. Sal. 592. 

It is not pleaded that the Will wherein Syme was appointed 
Ex'or was the same Wiil proved by the Pit. Or that it was 
proved by any other of the Ex'ors And if the Will was not proved 
by any other of the Ex'ors It is no Rel. or extingtiishm't 

When men will make use of such extraord'ry methods to avoid 
the paim't of a just debt it can't be thought hard to hold them 
to the greatest strictness in pleading Here the Deft should 
have craved Oyer of the Probate & then have pleaded that 
Syme & the Pit. were both maide Ex'ors And then the matter 
would have appeared clearly & judicially to the Court 

It is possible there might be two Wills The fact cannot now 
be enquired into but Your Honours will judge upon the plead- 
ings 

It shews an extraordinary temper of Utigiousness in the Deft, 
to contest this matter for even tho' the debt should not be recov- 
erable at Law Yet in Equity it will indisputably be subject to 
Cred'rs or even Legatees in some cases Here there are Creditors 
unsatisfied. 

What is meant by the debts being extinguished is no more 
than that an Action will not lie to recover for it is Assets in the 
hands of the Ex'or & as such liable to the Tes'tors debts And 
that is the reason Holt says it amounts to paiment & a rel. 

The Case of Wankford & Wankford 1. Sal. 299. where all the 
learning on this head is collected was no more than this The 
Obligee made the Obligon Exor who Adm'rd part of the Tes'tors 
Goods but never proved the Will & died The Action was 
brought ag'st the Heir of the Obligor who pleaded this matter 
And it was adjudged that [130] the debt was extinguished tho* 
the Will was not proved because the Ex'or had Adm'rd & so 
had put it out of his power to refuse 

But here Syme never Administered. 
Judgm't affirmed. 

TiMSON vs. SCARBURG & Uxor 

Sam'l Timson seised in fee of 800 a of Land called Vaulx Hall 
Plantation by his Will Jan'ry 8. 1694. devises thus " I give to 
my two Sons W'm & Sam'l all that tract of Land where I now 
live comonly called Vaulx Hall Plantation to be equally 






4 1 



BARRADALL'S REPORTS B141 

** divided between them Wm to have the Manner house & 
** Plant, into his half & Sam'l the Plant whereon Robert Rick- 
man now lives into his half to them & their Heirs forever but 
if it shall please God either of them shall die before they come 
of age or without issue lawfully begotten Then to the Survivor 
of them & their Heirs forever. 

Wm & Sam'l entered & were severally seised of their moieties 
Wm lived till 21. & having issue 3 Sons Wm John & Sam*l & 
being seised of the premes devised to him & also of 150 a of Land 
adjoining which he had purchased (which said devised premes 
& 150 a are the premes in queon) by his Will Aug't 18. 1716. 
devised the premes in queon thus ** I give to my Son Wm my 
** Dwelling house & part of my Land on Queens Creek (describ- 
*' ing the boundaries) to him & his heirs lawfully begotten for- 
*' ever Item I give to my Son John All the rest of my Land on 
** Queens Creek to him & his heirs lawfully begotten forever 

But if it should please God to take are [sic] or one of them 

out of this World before they come of Age or have no Son 
*' Then to the Surv'r of these two or his Eldest Son" Then he 
devises other Lands to his Son Sam'l & then follows this Clause 
** If neither Wm nor John leave no Son behind them then my 
** Son Sam'l to have it all to his Heirs." Wm & John the Sons 
& Devisees entered & were seised & then Sam'l their Brother 
died without issue 

W*m lived to be 21. but died without issue & by his Will 26. 
April 1726, devised his part to his Brother John in tail male 
And in the Conclusion of his Will there is this Clause. " Item I 
** give the Remainder of my Estate Lands & Interest to my 
** Bro'r John Timson & his Heirs forever" 

John Timson lived to be 21. had issue a Son Wm & by his Will 
[131] devised to the Defts. Wife for life This Will is not found 
at large as the others are 

Wm the Son of John died an Infant without issue The 
Lessor is Sam'l the Son of Sam'l Timson the first tes'tor & is 
his Heir at Law. He is also Heir at Law of Wm Timson the 
fa'r & of his 3. Sons Wm John & Sam'l And so is the male heir 
of the whole family 



B142 VIRGIXIA COLONLVL DECISIONS 



The pedigree stands thus 

Saml Tiinson 



Wm John Saml Mary 

\ dead sans 



* \ 

Wm John Saml 

died in dead sams 

1726 issue 

5a9f5 issue 

WiHiam 
dead iOMS issue 

In this Case there must of necessity be two queons made 
One upon the Will of Saml Timson which respects the Moiety 
of Vaulx Hall plant, viz. 400 a of the premes in question And 
the other upon the Will of W'm Timson his Son which may 
either respect the whole premes or only the 150 a purchased by 
W'm Timson as the determination happens to be upon Sam'l 
Timsons Will 

The first question then is upon Saml Timson's Will What 
Estate his Sons Wm. & Saml take in the Lands called Vaulx 
Hall Plant, devised to them The devise is to this purpose 
'* I give to my 2 Sons W'm & Saml Vaulx Hall Plant to them & 
** their Heirs forever but if it shall plaese God either of them should 
die before they come of Age or without issue lawfully begotten 
Then to the Surv'r of them & their Heirs forever." 

The question is Whether W*m & Saml took an Estate tail 
or a fee simple upon the Contingency of living till 21. or having 
issue If an Estate tail W'm is dead without issue & Saml who 
survived is the Lessor & has undoubtedly a good title If a 
contingent fee then the Lessor can have no title under this Will 

I shall be very short in speaking to this question because this 
Court very lately in April 1739. upon the same words as are in 
this Devise in another Clause of the same Will adjd. that such 
words make an Estate tail I was then on the other side of the 
question & laboured to persuade your Honours to be of Opin. 
that it was a contingent fee but in vain Whether the Gent on 
the other side may succeed better I can't tell 

The Case in which this Opin. was given was betw. the 
now Lessor (a) Timson & Robertson. It was upon a Devise 

(a) See the Case ante 81. 

in the Will of Saml Timson in these words " I give & 
** bequeath to my Son John 200 a of Land to him & his heirs 
'* forever but if it shall please God he shall die under Age 



BARRADALL'S REPORTS B143 

" or without issue then to my dauter Mary & her [132] heirs** 
John lived till 21. but died without issue The Lessor claimed 
as heir of John & if John had taken a contingent fee by the 
Devise would have had a good title but it was adj*d to be an 
Estate tail And so Mary the dauter had a good Title By the 
Rem*r over 

In the present Devise the words ** to my Sons W*m & Sam'l & 
** their heirs but if either of them die before they come of age 
** or without issue Then to the Surv'r & their heirs." There is 
no difference betw. the words of one Devise & the other only in 
one it is if they die under Age & in the other if they die before 
they come of Age which are the same in sence The Lessor 
therefore hopes that the same words in the same Will will have 
the same construction now they make for his title as they were 
adj'd to have when they made ag'st his title 

The words that we rely upon to make an Estate tail are ** if 
either die before they come of age or without issue This word 
issue in a Will is always taken to mean heirs of the body And 
when ever it can be applied to the word heirs in any former part 
of the Will qualifies the generality of the term heirs & restrains 
it to Heirs of the body It is a common & known doctrine that 
if a devise be to one & his heirs & if he die with't issue Rem'r 
over that tho* the first words made a fee Yet the word issue that 
comes after shews that the testor did not intend heirs general 
in the first part of the Devise but only heirs of the body And so 
taking the testers meaning upon the whole Will it is plain an 
Estate tail was intended Here the Devise is to W'm & Sam*l & 
their heirs & if either die before they come of Age or with*t issue 
Rem*r over The word issue shews what heirs were meant 
in the first part of the Devise viz. heirs of the body. And your 
Honors have adj*d that the words before they come of Age do 
not differ the case from a general devise of the kind 

In Timson & Robertson the Case principally relied upon was 
Soul & Gerrard Cro. El. 525. which was thus A man devised 
to his Son & his heirs & if he die within age or without issue 
Rem*r over This was adjudged an Estate tail And it is to be 
sure a Case directly in point 

There is also a later Case Tilly & Collier 2. Lev. 162. where the 
devise as to this purpose was shortly thus The Devisor had 3 
dauters Susan Ann & Eliza. & devised his Lands to his wife till 
his heir came of Age. And if Susan his heir die without heirs 



B144 VIRGINIA COLONIAL DECISIONS 

before 21. so that the Land fall to Ann Then he devises further 
These words ** If Susan die without heirs before 21/' it was held 
made an Estate tail in her & not a fee 

[133] And so I shall leave this point hoping my Client will 
not be so unfortunate to have the same point adj'd ag'st him 
both ways 

The next queon in this Case is What Estate W*m & John the 
Sons of W'm Timson took by the devise to them in their fa'rs 
Will and this question is necessary with respect to the 150 a 
which W'm Timson the fa'r purchased & which he has devised 
with his moiety of Vaulx Hall Plant, to his Sons Altho' he had 
only an Estate tail in Vaulx's And if he had a fee in Vaulx's Then 
this queon respects the whole premes as has been sayed 

The devise in this W'm Timsons Will is thus ** I give to my 

* Son W'm part of my Land at Queens Creek to him & his heirs 
' lawfully begotten forever I give to my Son John all the rest 

* of my Land at Queens Creek to him & his heirs lawfully be- 

* gotten forever But if it should please God to take are or one 

* of them out of this World before they come to Age or have 

* no Son" Then he devises lands to his Son Sam'l & adds If 

* neither W'm or John leave no Son behind them then my Son 

* Sam'l to have it all to his heirs" 

Nothing can be clearer I think than that the testor intended 
the fee should rest in his Son Sam'l for tho' the first devise to 
W'm & John is to them and their Heirs Yet it is with the 
addition of those words lawfully begotten which in comon 
Speech are generally understood of heirs of the body Yet ad- 
mitting a fee simple would pass by these words Upon what 
follows there can be no doubt what heirs the testor meant in 
this part of the devise " If either die before they come to Age 
** or have no Son Then to the Surv'r or his eldest Son " The heirs 
meant are plainly the Sons of the Devisees or their heirs male 
for they are the same & not their heirs general 

The words here are the same as in Sam'l Timsons Will Only 
Son instead of issue And the word Son is as much descriptive 
of heirs male as the word issue is of heirs of the body in general. 
If therefore the words in Sam'l Timsons Will make an Estate 
tail general The words here will make an Estate in tail male 

But if there could arise a doubt on this part of the Will on 
account of the words before they come of Age Yet the last Clause 
seems to put the matter beyond all queon ** If neither W'm or 



BARRADALL^S REPORTS B145 

Jn'o leave no Son behind them then my Son Sam*l to have it 
all to his heirs The Rem'r to Sam'l is to take place when Wm & 
John are dead without Sons that is with't issue male 

It will scarce be disputed that if a man devises to one & his 
heirs And if he leaves no Son RemV over that the Devisee has 
an Estate in tail male And that in effect is the devise here Son 
does certainly as strongly import heirs male as Issue does heir 
of the body in general 

[134] In Bilfields Case cited by Hale in King & MeUing 1. 
Vent. 231. the Devise was to A. & if he dies not having a Son 
then to remain to the heirs of the testor And adj'd that Son was 
nomen collectivum & that it was an intail 

So in Milliner & Robinson Mo. 682 One devised to his Brother 
John & if he died having no Son then to his Bro'r Wm for life 
And if he died without issue having no Son Rem'r over It was 
held that John the first Devisee had an Estate tail 

[Note by W. G.) As to these two cases see 9 Gratt. 222-232. Arg. (pear me) 
in Moore vs. Stones Ex's. 

This Case is also in 1 Ro. Abr. 837. 12. but there the Devise is 
stated to be to the Wife for life & afterwds to the Son And if 
the Son dies without issue having no Son that another shall have 
it Held an Estate in tail male to the Son 

But there can scarce want Cases to support so plain a point 
for what can a man mean by the word Son but heirs male & 
what are heirs male but Sons 

So that I apprehend it to be extreamly clear that the testor 
Wm Timson intended only an Estate in tail male to his Sons 
W'm & John And that upon default of male heirs the Land 
sho*d go to his Son Sam'l in fee W'm & John are both dead with- 
out issue Sam*l is also dead & the Lessor is his heir. 

Thus upon the Will of Sam'l Timson the Lessor seems to have 
a good title to Vaulx's Plant. But if that could be a doubt upon 
the Will of W'm Timson he has clearly a title not only to that 
but to the 150 a purchased by W'm Timson And so has a good 
title to the whole premes in question 

And if W'm & John the Sons of W'm had only an Estate tail 
it may seem unnecessary to take any notice of their Wills W'm 
has taken upon him to devise his part to his Bro'r John in tail & 
John has taken upon him to devise the whole to the Defts. 
Wife but these Devises must be void if they had only Estates 
tail as I apprehend is extreamly clear 



B146 VIRGINIA COLONIAL DECISIONS 

Obj. Admitting that W'm & John the Sons of W*m Timson 
took only an Estate tail & that Sam*l had a Rem'r in fee This 
Rem r was vested in him & so upon his death descended to his 
heir who was his Bro'r W'm And W'm by his Will has devised 
this Rem'r to his Bro'r John by these Words ** I give the Rem'r 
** of my Estate Lands & Interest to my Brother John & his 
** heirs " Then John being tenant in tail with the Rem'r in fee 
expectant might devise to the Deft. 

Answr. I shall not dispute but that the Rem'r limited to 
Sam'l upon his death descended to his Bro'r W'm And I shall 
agree that W'm might devise this Rem'r & that it wou'd pass 
by [135] by the devise alone But as John the Devisee was heir 
of his Bro'r W'm he must take this Rem'r by descent & not by 
the devise 

It is not indeed material how John took this Rem'r I agree 
that he was tenant in tail with the Rem'r in fee expectant And 
that he might have devised this Rem'r but this I conceive he 
has not done And therefore the same is descended upon the 
Lessor who is his heir 

I have already observed that John Timsons Will is not found 
at large or referred to in the Case And therefore it must be taken 
to be as Stated & agreed to in the Case 

The words of the Case are that he made his Will & thereby 
devised the premes in queon to the Deft. Anna Maria for life 
It is agreed that he left a Son at his death who is since dead 
(but the Will I believe was made before he had a Son) The queon 
then is whether tenant in tail with the Rem'r in fee expectant 
having issue can devise in this manner. 

The intent of the testor is to be considered By the devise as 
here stated he certainly intended to pass a present interest but 
that he could not do having issue at his death The Devise 
therefore is void 

Vid. 1. Sal. 233. 1 Raym'd 523. Badger & Loyd. 

The Act of the 9. Ann. Says No Estates tail shall be cut off, 
avoided or defeated by any ways or means whatsoever but by 
Act of Assembly And every act and thing done towards cutting 
off, avoiding or defeating any Estate tail is thereby declared 
to be null & void 

But this devise would have avoided & defeated the Estate 
tail as there was issue at the testors death Therefore it is void 



BARRADALUS REPORTS B147 

A Devise void in its creation cannot be made good by matter 
ex post facto As if an Infant makes a Will & lives to be of Age 
but dies without a new publication the Will is void So of a ferns 
covert if she does not republish after discoverture 

Further tho' a Rem'r in fee may be devised Yet there must be 
apt words to pass it The testors intention to pass such an 
interest must appear Here the intention appears quite other- 
wise The Devise as stated is of the premes in queon & to pass 
in presenti This can never be construed a Devise of a Rem*r 
expectant & to take effect in future As it must be to make the 
Devise good because it was certainly void ag'st the Devisors 
issue 

But this question only respects the 150 a purchased by W'm 
Timson if the Devise in Sam*l Timsons Will be an Estate tail 

Judgmt. Fr Pit. 

N. B. The Council for the Deft, only argued the first point 
which being adj'd ag*st the Deft, he would not argue the second 
The Obj. above was not mentioned 

[136] Tazewell & Ux'r vs. Harmanson 

In Ejectm't for 400 a of Land Upon the facts agreed the 
Case is 

W'm Andrews seised in fee of 1000 a granted by Pat to one 
Taylor by Deed poll dated in 1664 for divers valuable cons's 
(but none particularly expressed) demises leases & to farm lets 
the said premes to Tho's Harmonson for his and his wifes life 
And after their decease he gives grants enfeoffs & confirms the 
said Land to four Sons of Harmonson as follows to Thos. 300 a. 
to W'm 250 a. to John 250 a. & to Henry 200 a. And if old 
Harmonson & his wife decease before the Sons come of Age it 
shall be lawful for them at the age of 21. to enter upon their 
parts The same to have enjoy & possess as their own proper & 
real Estates in fee Simple to them & their heirs lawfully begotten 
of their several & respective bodies forever 

This is the substance of the Deed It is recorded but no livery 
appears to be made 

Tho's Harmanson the fa'r enters & in 1667. obtained a pat 
for 800 a as Surplus Land within the bounds of the said Pat. 
to Taylor To hold to him & his heirs 

After which he caused a Division of the 1000 a to be made 



B148 VIRGINIA COLONIAL DECISIONS 

among his four Sons according to the proportions given them 
by the Deed And being seised both of the 1000 & 800 a by his 
WiU dated in 1696 he devises thus ** I confirm to my four eldest 
** Sons the several Dividends of Land by me given to them & 
their heirs forever as the same was divided by Mr. Dan*l Ejrre 
** which they have passed Bonds to each other to be content with 
** under the penalties & according to the Conditions there 
incerted." 

And in another Clause he devises to the said Sons in fee **A11 
** the remaining part of his Dividend which lies at the head of 
** the Land given them & was not divided with the rest to con- 
** tain their several Divisional lines as they now run to the head 
line &c. 

The Lands mentioned in the first devise are the 1000 a Those 
mentioned in the second devise are the 800 a. 

Tho*s Harmanson died Henry one of the Sons entered into 
200 a parcel of the 1000 a Allotted him by the Division & devised 
to him as aforesaid & into other 200 a contiguous parcel of the 
said 800 a. Which said 400 a. are the premes in queon 

Henry Harmanson by his Will dated in 1709. devises the said 
premes (by the name of his Dwelling Plant.) to his wife for life 
After her death to the Child she the went with (if a 

[Note by W. W. S. — There is a skip in the pagination in the book itself; copy 
is followed.] 

[141] some thing as the Son He is willing they sho'd have their 
brothers Estate but if he won't consent to it Then he has pro- 
vided an equivalent viz. The Estate he had given to his Son 

This is the constc. we contend for the Son would not make 
over his own Estate Therefore we say we are intitled to the 
equivalent But the Son says he will have his own Estate & 
the other too I must submit whether this can be reasonably 
thought the tes'tors meaning It is no obj. to say the Estate 
given the Son was only in Rem'r And that it was unreasonable 
he sho'd make over his Estate upon so remote an expectancy. 
The business is whether the testor has ordered it so If he has 
it must be submitted to It was certainly in the Sons election 
whether he would accept of this Rem'r upon the terms it was 
given And if he did not think it worth his while Ought he now 
because in event the Rem'r is come to take Place set up a title 
discharg'd of the terms or condition upon which it was given 

Such reasoning has more of amusement than Argument It 



BARRADALL'S REPORTS B149 

was I conceive as much the testers intention that his dauters 
sho'd have Johnsons Plant*n or as an equivalent an Estate in 
Rem'r in the dwell'g Plant'n as it was that the son sh'd have 
any estates in the dwell'g plantation If the Son will not let us 
have Johnsons Plant, how can this intent be satisfied unless we 
have the dwelVg Plant'n 

Then nothing can be stronger to shew the testors intent that 
the Son sho'd have nothing in the dwelling Plant'n if he did 
not perform the Cond'n He not only limits it over to the dauter 
but adds ** My Son to have no part or parcel of my Estate" 
He intended to oblige him under the penalty of losing all to 
make over the Land to his Sisters And since he has not done 
so What pretence of right can he have 

It is no uncomon thing in Wills to construe the the Copulative 
(and) as the Desjunctive (Or) And so vice versa where such 
construction will best support the tes'tors meaning There are 
many Cases in the Books to this purpose 

1 Sho. 322. sev'l Cases put of Gov't so constr. Saul & Gerrard Cro. El. 

Now here in this proviso if the first Copulative (And) is read 
(Or) the Case will admit of no dispute for then it will run thus 
If the Child be a dauter Or if my Son should enjoy the dwell'g 
Plant'n there could not then possibly be a doubt but that if the 
Son by any Event came to enjoy the dwell'g Plant'n It sho'd 
go over if he did not make over the Land to his Sisters And as 
that from other Parts of the Will may be reasonably collected 
to be the tes'tors meaning I must submit whether it be 
any forced interpretation to construe (And) here as a 
Disjunctive 

Pol. 649. Price & Hunt. 

This may appear the more reasonable upon this cons, that 
those words " If my Son sho'd enjoy the dwelling Plant'n &c." 
are no ways necessary but the sence & meaning of the tes'tor 
would be compleat without them Unless they were intended 
for the purpose we contend 

The Sentence would run thus with't those words *' If the 
*' Child be a dauter And my Son sho'd not make over &c.'* 
then I give the dwell'g Plant'n to my Dauters. 
[142] If the Child had been a dauter the Son would have enjoied 
the dwell'g Plant'n as the next in Rem'r The other words then 
** or if my Son sho'd enjoy &c." were not necessary unless it 



B150 VIRGINIA COLONIAL DECISIONS 

was to signify that if his Son by any event came to the dweU'g 
Plant'n it sho'd go over if he did not perform the Cond'n 

If then it was the Testors intention that the Son sho*d have no 
Estate in the dwell'g Plant'n unless he made over the Land to 
his Sisters which he has not done. It will scarce be a queon I 
believe but the Lessor has a good title The Case will be then 
no more than this 

Devise to A. for life Rem'r to B. in tail Rem'r to C. in tail 
upon condition that he do such an Act And if he fails then to D. 

It cannot be doubted I think but that this Devise to D. is 
good by way of contingent Rem'r. It is a Rem'r to take effect 
upon this contingency in case the Son disturbed or did not make 
over the Land to the dauters But altho' this Rem'r was contin- 
gent in its creation Yet upon the Sons entring & aliening the 
Land it became vested for then the Contingency happened upon 
which it was to take effect And now the mesne Estates being 
spent the psons in Rem'r have undoubtedly a good title 

Such a lim after a fee simple would be good tho' not as a 
Rem'r Yet as an Executory Devise as Fulmersons case cited 
in Pell & Brown Cro. Ja. 592. which was shortly thus a Devise 
to Sr. Edw. Cleer & his Wife & the heirs of Cleer upon Cond'n 
that they sho'd convey lands to the Ex'ors And if they failed 
their Estate sho'd cease & the Ex'ors should have the Land &c. 
And it was held that this Lim tho' after a fee was good by way 
of Executory Devise 

Here the lim is after an Estate tail upon which a Rem'r may 
be limited And therefore it is good by way of contingent Rem'r 
Such a Rem'r is contrary to no rule of Law and when a man has 
a fee simple He has such an absolute power & dominion over 
his Estate that he may give it in any manner & under what 
Conditions restrictions & Lim he pleases so his disposition do 
not clash with the rules of Law And so I pray Judgm't for the 
Pit. 

Vide 2 Mercer. 44. 

This Case was compromised. 

Anderson & Ux'r vs. Ligan. 

Tho's Ligan seised in fee of 200 a. of Land the moiety of 
which are the premes in queon & having issue 4 Sons W'm the 
eldest Rich'd his second & two others by his Will 10. Jan'ry 



BARRADALLS REPORTS B151 

1675. devises the same to his Son W*m ** But in case [143] my 
** Son W'm die without Heirs Then my Land above expressed 
"to return to my Son Richard or the next surviving Son." 
Wm entered & was seised & had issue Thos. his eldest Son & 
Wm & by his Will 21. Jan'ry 1688 devised the said premes to 
his Sons Tho's & W'm in fee to be equally divided betw. them & 
died in 1689. 

After his death his Widow occupied the whole till his Sons 
came of Age who respectively as they attained to 21. entered 
into the said land but made no division 

Tho's the Son of W'm died in 1705. left issue a Son & 3 daugh- 
ters Phoebe Mary & Eliz'a The Son died an Infant in 1706. 
Mary is dead with't issue Eliz'a is one of the Lessors was bom 
in 1701. & married the other Lessor in 1718. 

Eliz'a & Phoebe or those claiming under them have been in 
quiet possion of part of the said 200 a. viz. 100 a. from the death 
of their Bro*r in 1706. And the Deft, who is William the Son 
of W'm from the Time of his Entry has been in possion of the 
rest but the Land in his possion has never been separated or 
divided from the other The Deft, is 59 y'rs old 

Phoebe who married one Welthall with her said husband by 
deed 6. March 1720. conveied all her right to sd land by esti- 
mation 82 a. to Alex'a Marshall 

The Lessors by Lease & Rel. 1 & 2. Jan'ry 1723. conveied 
to s'd Marshall 80 a. parcel of s'd land by the name of one third 
part of 247. a. 

But Marshall by deeds dated 6. March 1737. conveied back to 
Welthall & his wife & the Lessors all his title claim & interest 
to the land so conveied to him 

The first queon is Whether the Devise in Tho's Ligans Will 
to his Son W'm be an Estate tail or a Fee If an Estate tail the 
Lessor Eliz'a is one of the Coheirs in tail viz. one of the dauters 
of Tho's who was eldest Son of W'm the first devisee And so 
she must have a clear title unless she is bar'd by the Act of Lim 
which must be the 2d queon & indeed the only one in this Case 

As to the Conv. by the Lessor to Marshall It is void by the 
Act of 1710. Eliz'a being only Ten't in tail 

But if not Marshall has reconveied, & so Eliz'a is remitted 
to her first Estate And 1. I think it can scarce be disputed but 
that W'm Ligan the Son of Tho's took an Estate tail by the 
Devise in Tho's Ligans Will 



B152 VIRGINIA COLONIAL DECISIONS 

By the first part of the Devise no Estate is limited but by 
what follows ** In case my Son die with*t heirs then to Rich'd." 
W'm has an Estate of Inheritance by implication But the 
queon is whether a fee or tail 

The word heirs in a Will is often taken respectively that is to 
say for heirs special & not heirs gen'l where the tes'tors inten- 
tion appears to be so 

Now when a man devises to one & his heirs & if he die with*t 
heirs Rem*r over to another who is heir gen'l of the first Devisee, 
It is plain he cannot mean the heirs gen*l of the first Devisee 
because then the lim over would be idle & vain for the heir 
gen'l would take it by course of Law if the Devisee left no 
Children 

[144] The Tes'tor then in such case must mean heirs of the 
body And so such a Devise by tHe apparent meaning & intent 
of the testor makes an Estate tail. 

And so it has been adj'd in sev'l instances as 

Webb & Herring 1. R. Abr. 836. 5. 3. Bui. 192. Devise to his 
Son Francis after the death of his Wife. And if his 3. dauters 
outlive their Mother & Francis & his heirs Then to them for 
life. Heirs here was held to be meant heirs of the body of 
Francis the dauters being his heirs gen'l & so Francis had an 
Estate tail 

Braxton & Stone 3. Mod. 123. A man having 2. Sons devises 
to the eldest & if he die without heirs male Rem'r to the other 
Adj'd an Estate- tail in the Eldest 

Nottingham & Jennings 1. Sal. 223. One having 3. Sons 
devises to the 2d & his heirs forever & for want of such heirs 
to his own right Heirs Adj'd the Testor must intend heirs of his 
body because the Son could not diewith't heirs gen'l living heirs 
of the fa'r & so an Estate tail in the 2d Son 

See also the Cases in 3. Danv. 180. & No. 6. ibid. 

Here the Rem'r limited upon W'ms d)ring with't heirs is to 
his Bro'r Rich'd who was his heir gen'l And so clearly an Estate 
tail 

If this was an Estate tail in W'm the Pit. is Grandauter & 
one of the Coheirs in tail & so has a good title unless barr'd by 
the Act of Lim which is The 2d queon & in truth the only 
point in the case W'm the tenant in tail takes upon him to 
devise to his two Sons Tho's & W'm in fee 

After his death his wife occupied the whole till the Sons 



BARRADALUS REPORTS B153 

came of Age & then they respectively entered but never made 
any division Tho's the eldest Son died in 1705. left Issue a 
Son & 3 dauters The Son died in 1706. with't issue & one of the 
dauters Mary is dead with*t issue 

The Lessor Eliz'a is another of the d?iuters was bom in 1701 & 
married in 1718 to the other Lessor 

The Deft, who is W'm the Son of Tho's has been inpossion of 
that Part of the 200 a. in dispute 38 years viz. from his Entry 
after he came of Age 

1. I say we are within the saving Clause of the Act of 1710. 

Or 2d if not we have been in possion as well as the Deft, no 
division or separation And so the Act of Lim can't run ag'st 
us 

The Act of 1710 gives a right of Entry to persons then having 
a Right So that they enter within 20 yrs. from the time the 
right first accrued 

And there is a proviso or saving Clause that if pr-sons [145] then 
having such right of Entry are under the disability of Non age 
Coverture &c. that they may Enter within 10 yrs after the dis- 
ability removed 

When this Act was made the Lessor Eliz'a & her Sister Phoebe 
had a right of Entry as issue in tail of their father This right 
first accrued to them upon the death of their Brother in 1706 
And so by the enacting part they ought to have entered within 
20 yrs from that time viz. in 1726 

But the Lessor Eliz'a was under Age when the Act was made 
& she married under age & has continued under Coverture ever 
since 

The queon then is whether her right is not saved to her 

Had she lived to be of age & then married I agree she must 
have been barr'd because the disabihty then would have been 
removed & she in a capacity to exert her right 

But here before the first disability removed she falls under 
another equally within the saving Clause We contend then 
that by the Equity & Intendment of this Clause our right is 
preserved to Us 

Suppose we had become Non compos before our full age. 
Surely we sho'd not be barr'd if we sued within time after 
recovery Why sho'd we then in this Case 

We hope it will be the Courts Opinion that we are within the 
Equity & Intendment of the Proviso 



B154 VIRGINIA COLONIAL DECISIONS 

But if not we say 2. The Act of Lim cannot run ag'st us at 
all as this Case is circumstanced. 

The Defts. Title is under a Devise of W'm the Ten't in tail his 
fa'r & our G'dfa'r. This Devise must be agreed to be void And 
so the Deft, had no right of Entry- 
It is found that our fa'r & the Deft, entered respectively as 
they came of Age but never made any division That the Lessor 
& her Sister & those claiming under them have been in quiet 
possession of part viz. 100 a. ever since their Bro'rs death in 
1706 & the Deft, has been in possion of the rest but his part was 
never separated or divided from the other 

Now by the Will of Wm. under which the Deft, claims no 
particular Part is given to him but the whole to be equally 
divided betw. the Lessors fa'r & him It can't therefore be 
say'd that under that devise he had a right to one part more 
than another And the possion both of Lessor & Deft, has con- 
tinued an undivided possion to this Day. 

Now the rule of Law is Where two are in possion One that 
has right & another that has not the Law will adjudge the possion 
to be in him that has right Lit'l 701. Plowd. 233. b. s. p. 1. Sid. 
385 s. p. 

Here is an undivided Possion both in Lessor & Deft. And as 
the Deft, entered with't any title it is exactly the Case put by 
Littleton 

If then the Law adjudges the possion in Us the Act of Lim 
cannot run ag'st us 

[146] The Lessors are not above 7 or 8 jrrs out of time from 
her full age She was not of Age till 1722 & had 10 yrs after viz. 
till 1732. 

Here an Estate tail is to be defeated by possion And the Issue 
in tail under disability 

Judgem't Fr. Deft, by the Opinion of 

Lee Tayloe 

Custis Lightfoot 

Grymes Digges Con. 

Robinson 

Byrd & the 

Governor 

Vide Needlers Argument page 33. [Not in same handwriting.] 



BARRADALL*S REPORTS B155 

CoRBiN vs Chew*s Adm'rs. 

Debt upon bond And on Plene administravit pleaded two 
questions were made 1. Whether an Exec'r might retain for 
his own debt by simple contract ag't a Bond CredY. 2. Whether 
Judgm't upon simple contracts obtained since the Action bro't 
on the Bond may be pleaded or given in Evidence on Plene 
administravit ag't this Bond debt, for as to such Judgmt*s or 
paiment of simple Contract-debts before Notice (by Action) of 
the Bond there can be no question but they may be pleaded 
ag't the Bond-debts Vid 1. Mod. 175. 3. Mod. 115. 1. Vent. 199. 
2. Saund. 49. Vaugh. 94. 3. Lev. 113. FitzG. 77. 78. 2. And. 

As to the 1. for the Deft, it was argued that an Ex'r may 
retain for his Debt by Simple Contract ag't a Bond Cred'r 

It is a gen'l Rule that an Ex'r may retain for his own debt 
Wentw. Off. of Ex'r c. 12. tit. Debts by Specialty says this is 
to be understood where the Ex'r is of equal Dignity with the 
Cred'rs And puts a Case If the Testor be indebted to other 
Men by Judgm't Recognisance or Statute and to the Ex'r only 
by Specialty the Ex'r cannot prefer himself Which is true in 
the Case put But this proves not the Point in question w'ch is 
where the Ex'rs debt is by Simple Contract & the Cred'rs by 
Bond And there is a great difference between the Cases : For 
Ex'rs are bound to take notice of Judgments but not of Bonds 
as I shall shew presently. Wentworth's Opinion then is nothing 
to the Point And I will [147] confess I can find no judicial resolu- 
tion in the Books the solution of it must therefore depend upon 
the reason & nature of the thing From whence I take it to be 
clear y't the Ex'r may retain 

The Authoritys are numberless that an Ex'r may pay a debt 
by simple Contract without Action before a debt by Specialty 
whereof he had no Notice Vid supra And this Notice must be 
by Action too 1. Mod. 175. Wentw. 144. If then he can pay a 
Cred'r it would be very hard & unreasonable if he cannot pay 
himself This would be to put him in a worse Condition than 
another Cred'r in the same circumstance and deprive him of 
the power of doing as much for himself as for a stranger w'ch is 
ag't Sense & Reason as well as ag't a rule of Law In cBquali jure 
melior est conditio possidentis which by such means would be 
really inverted And the Ex'rs possess on would put him in a 
worse State viz. out of a possibility of obtaining a debt by Simple 



B156 VIRGINIA COLONIAL DECISIONS 

Contract before a debt due to another by Bond w'ch he might 
do if he was not Ex'r And as the only way he can pay himself is 
by retaining Doubtless he may well do it 

I take the Law to be likewise clear that where a Suet is oom- 
menced ag't an Ex'r on a Specialty & afterwards another is 
bro't on a Simple Contract the ExV may lawfully confess this 
last Action And the Judgm't be pleaded in bar to the Action on 
the Specialty This I shall endeavour to prove presently If 
the Law be so which I shall suppose at present Is it not absurd 
to imagine an Ex'r has Power to prefer a Stranger but not him- 
self And therefore as he cannot have remedy by Action (for he 
cannot sue himself) the Law undoubtedly will give him an ade- 
quate remedy viz. a power to retain Otherwise his Extorship puts 
him in a worse State than he would be without which the Law 
could never intend (nor is there one Instance where the Law is 
so) being ag't the rule I just now mentioned 

I conceive it then to be clear both from the principles of the 
Law as well from the reason & nature of the thing and I am 
sure highly consistent with natural justice that an Ex'r by simple 
contract may retain ag't a Bond Cred'r 

2. Whether Judgm't obtained upon debts by simple contract 
since the Action bro't by the Pit. on his bond may be pleaded 
or given in Evidence ag't the Bond-debt 

I will agree that to pay a debt by simple contract voluntarily 
before a debt by Obligation whereof the Ex'r had Notice is a 
Devastavit But I conceive it is not so to satisfie a Judgm't 
obtained upon a Simple Contract before a debt by Obligation 
And I take it to be a settled Point in Law that where an Action 
is bro't ag't an Ex'r & pending that another is brought ag't him 
he may lawfully confess this last Action & the Judg't shall be 
a good bar to the first if there is no covin D. & Stud. 157. Wentw. 
144. Mo. 678. Cro. El. 462. [148] And there is no difference where 
the first Action is for a debt by Specialty & the Q. upon simple 
contract, Keil. 74. is expressly in point And it is there sayed to 
be clear Law that when a judgm't is given ag't Extors such 
recovery is a good plea to all other Actions And 9. E. 4. 12. 
Ex'rs are chargeable to him who first has Judgm't And no dis- 
tinction made as to the debts Nor do I find that distinction taken 
in any of the Cases upon this Subject. Vid. 1. Sid. 21. 

And Vaugh. 95. Edgcomb & Dee is express in the point that 
such Judgment upon simple contract tho' the Action was com- 



BARRADALL'S REPORTS B157 

menced after another Action brought upon a Specialty may 
well be pleaded to the Action on the Specialty 

The Law has left in the breast of the Ex'r to prefer one Cred'r 
before another in many Cases as Charity or other equitable 
motive may induce And an Ex'r in conscience ought not to 
withstand or delay a Suit if he thinks the Debt just of what 
nature soever it be There may & often is more Equity & Charity 
to pay a Debt by simple Contract than one upon Bond 

Besides a Judgment is the Act of the Court & compulsory & 
binding upon the Ex'r And if it is no bar to other Actions he 
must pay it out of his own pocket 

The Cases that I suppose will be shewed on the other Side 
will appear to be chiefly upon the point of paiment without 
Judgm't of Debts by Simple Contract after Notice of Debts by 
Specialty which undoubtedly the Ex'r ought not to do voluntarily 
but there is no Case (I speak within the Compass of my own 
Knowledge & Inquiry) where it is expressly resolved that a 
Judgm't may not be paid tho' obtained after Action commenced 
upon the Specialty And I take 9. E. 4. 12. Keil. 74. & Vaugh. 94. 
to be affirmative Resolutions in the Point which I conceive are 
more cogent & ought to be more regarded than 20 Cases which 
prove nothing but by way of inference And an express Resolu- 
tion ag't me I believe cannot be shewn. Post 223. 



OCTOBER COURT MDCCXXXV. 

Morris ag't Chamberlayne. 

The Pit. declares upon an Indeb. Assumpsit for Money & 
Tob'o had & reced to his Use Upon Non assumpsit pleaded the 
Jury find a Special Verdict Upon which the Case appears 
to be That the Pit. was Sherif of New Kent Anno 1733 & had 
the [149] collection of the Quit rents Levies & Fees one Birch was 
his Undersherif & paid him 5000. lbs. Tob'o for the profits of his 
Office There was due from the Deft. 6. . 12 . . 4 for quit rents & 
7737 lbs. Tob*o for County Levies & Officers Fees of his own & 
other peoples that he had received Birch being indebted to the 
Deft, more than that Money & Tob'o before the Year 1733 
gives the Deft, receits for those Quitrents Levies &c. And 
gives himself Credit in the Defts. Book for the same but no Mony 
[sic] or Tob'o was paid Except by that Discount And the Deft. 



B158 VIRGINIA COLONIAL DECISIONS 

or Birch have not paid the Pit. any Part of that Money & Tob'o 
If the Law befor the Pit. the Jury find 71-1-10 Dam'a 

The Questions upon this Case I take to be two. 1. Whether 
the Deft, is chargeable at all to the Pit. for the Quitrents &c. 
discounted with Birch the Undersherif & for which he has his 
Receits. 2. If he be, Whether the Pit. can maintain an Indeb. 
assumpsit for the Quitrents &c. due from the Deft, himself 

There is a Difference taken as to the Mony rec'd for Quitrents 
& the Tob'o rec'd for Levies & Fees. The Quitrents are sayed 
to be the Kings Treasure & coming to the Defts. Hands he is 
answerable And so perhaps he would to the King if we were 
in a dispute with the Crown for it must be owned the Law is 
particularly careful to secure the Kings Debts. His Treasure is 
looked upon as the Treasure of the Comonwealth which is pacts 
vinculum et bellorum nervi And therefore he has sundry Preroga- 
tives for obtaining them He can have Exon of Body Lands & 
Goods at once A subject can have no Exon ag't the King's 
Debtor without first securing the King's Debt (p 33. H. 8. c. 39. 
if process for the King be comenced before Judgment) The 
King shall have Remedy ag't the Debtor of his Debtor cunt 
multis aliis If a Man intermeddle with the Kings Treasure 
pretending Title he shall be answerable for it to the King 11. 
Rep. 89. E. of Devonshire — Godb. 291. 292. 

All this is true but nothing to the purpose the Question here 
is not between the King & a Subject Nor ought the Money in 
this Case as I conceive be regarded as the Kings Debts It seems 
therefore foreign & absurd to talk of his Prerogative The Case 
as to this Point is no more than this An Officer of the Crown 
employs a person under him who receives the Kings Money & 
pays it to a third Person The Officer sues this 3. Person for 
Mony received to his Use How is the King concerned in all this 
Will his Treasure be impaired if the Pit. should not recover How 
then can this be regarded as his Debt Is the Pit. intitled to an 
Exon ag't Body Lands & Goods Will he be preferred to another 
Subject in the Point of Exon. Can the Pit. have Remedy ag't 
the Debtor of the Deft. If I am answered in the Negative as 
sure I must be it will be evident to a Demonstration this is not 
the Kings Debt nor can be regarded as such if it was the Pit. 
would have all these Privileges Therefore without entering 
into the Dispute whether the Deft, would be answerable to the 
King or not [150] which I conceive is nothing at all to this Case 



BARRAD ALL'S REPORTS B159 

I shall close this Point with an Observation of Sir M. Hale that 
To make the Kings Prerogative a State to recover other Mens 
Debts is unreasonable inconvenient & mischievous. Hard. 404. 

This plausible Pretence of the Kings Debt being removed the 
Case is in short this An Undersher who had farmed the Profits 
of the Sher Office directs a Person to whom he is indebted to 
receive divers Quitrents Levies & Fees And disco'ts them to- 
gether with what this Person owed himself on the same Account 
but of his own private Debt & gives Rect's The Undersher 
proves insolvent the Sher is forced to pay the King & public 
Officers And whether the Sher can recover ag't the Person who 
reced these Quitrents by the Undersherifs Order is the Question 

It is sayed if a Master send his Serv't to receive Mony & the 
Serv't pays it again to the Person he received it of in discharge 
of his own Debt this shall be taken as Mony reced to the Masters 
Use And I agree that it will be so But then I think that is 
nothing like the Case at Bar 

The Undersherif here cannot be taken as a Serv*t He had 
farmed the Office for a great Premium & so was not subject to 
the Direction or Controul of the Sher who had delegated his 
whole Power to him & therefore had no Right to intermeddle 
in the Receits & Paiments but the Undersherif was surely to 
manage that & everything else relating to his Office as he thought 
most for his own Advantage & Benefit It is inconsistent in the 
Nature of the Thing that the Sher should intermeddle for by 
that Means he might deprive the Undersherif of all the Profits 
which he paid so largely for 

If the Sherif then had no Power to direct the Rec'ts & Pai- 
ments or in any Manner to controul the Undersherif How can 
the Undersherif be regarded as his Servant Or. how can Mony 
reced by the Order of the Undersher be Mony reced to the Sherifs 
Use 

The Case therefore is not like that of the Master & Serv't 
for there is an apparent Fraud & the Person receiving the Mony 
knows very well it is the Masters & therefore it is reasonable he 
should be answerable to the Master But in the Case at Bar I 
conceive the Mony & Tob'o was in no sort the Sherifs nor subject 
to his Disposal (tho* it be true that he is answerable to the King & 
Public Cred'rs). He had fully authorised the Undersher to 
receive & pay The Deft, transacted this Matter with the 
Person so authorised & who alone had a Right to transact it 



B160 VIRGINIA COLONIAL DECISIONS 

If I employ a Factor and he pays his Debts with my Effects 
what Remedy have I ag't his Cred'rs 

[151] Suppose the Undersher had actually reced this Mony & 
Tob'o & paid the same to the Deft. Could the Sher then have 
demanded it as Mony reced to his Use I believe not I cannot 
then conceive any Difference in the Reason of the Thing between 
actually receiving & pajdng & discoiuiting as in this Case 

This Case is of very general Concern Almost every Man pays 
his Quitrents &c. to the Undersherif And often no doubt by 
Way of Disco't where a Man has an Acco't open with the Under- 
sherif And this I believe is the first Time such a Paiment has 
been disputed But hereafter it will be unsafe to transact any 
Business with an Undersherif if the Deft, is chargeable in this 
Case And I must submit whether such a Determination will not 
be introductive of a general Inconvenience 

But here it is pretended there is a mighty Fraud because the 
Mony was never actually paid to the Sher I cannot conceive in 
what this Fraud consists A public Collector being indebted to 
a Man appoints him to receive some public Debts & then allows 
him to apply them in Discharge of his own private Debt Few 
Men I believe would scruple to do this or think it any Point 
of Dishonesty or Fraud And as to the Mony not being actually 
paid That is answered before 

The 2. Question is Admitting the Deft, is answerable Whether 
the Pit. can maintain an Indeb. assumpsit for Mony &c. reced 
to his Use for the Defts. own Quitrents &c. paid the Undersherif 
by Way of Disco't as appears in this Case And I conceive he 
cannot 

This Disco*t must be admitted to be a Paiment or not a Pai- 
ment If it be a paiment the Undersher was sufficiently author- 
ised to receive them His Discharge we have & there Can be no 
Foundation for this Action as to them If this Discount be not 
a Paiment as has been strongly urged It must be owned they 
are still due But then the Remedy to recover them is not by 
Action but Distress Nay there is an express Law that no Action 
shall be brought unless the Party be returned insolvent What 
Pretence then has the Sher to maintain this Action or indeed 
any Action at all Certainly if these Quitrents &c. are not paid 
they njust be recovered in the Name of the King & the Officers 
to whom they are due 

I conceive the Pit. has no Right to recover any Part of this 



BARRADALL'S REPORTS B161 

Mony & Tob'o of the Deft. Much less can he maintain this Action 
for the Defts. own Quitrents And the Law be ag't the Pit. upon 
either Point Judgm't must be given ag't him the Dam's being 
entire 

Sir J. R. for the Pit. 

It was not insisted that this was to be regarded as the ICings 
Debt But he insisted the Undersherif was no more [152] than a 
Servant and cited Dalt. Off. Sher. That if a Serv't is sent to 
receive Mony & gives a Discharge without receiving it that 
Discharge shall not bind the Master That it was a gen'l Rule 
a Master was not bound by the Act of a Serv*t if the Serv't did 
not pursue the Authority given by the Master And cited Doctor 
& Student Dial. 2 c. 42. p. 258. 6. Mod. Ward v Evans, fo. 36. 

He sayed this was a Fraud & Covin between the Undersher & 
Deft. & a covinous Paiment was not good 1. Keb. 300. A man 
was indicted for pa3ring his poors Rate to an indigent Overseer 
ag't the Order of the Justices And 5. Co. 95. Goodals Case where 
a pretended Paim't of Mony to satisfie a Condition was not good 

But neither of the Cases seem to the Purpose that in Keb. 
does not say the Paim't was not good but the Man was indicted 
for disobeying the Justices Order. And in Goodals Case the 
Reason given is because an Estate of Inheritance by the Paiment 
of the Mony was to be devested and therefore it ought to be a 
true Paim't & Performance of the Condition 

Judgm't for the Pit. October 1735. 

Lee, Randolph, Grymes Lightfoot, Tayloe, Custis 

Carter, Diggs & the Gov'r Robinson, Byrd for Deft. 

for the Pit. Blair gave no Opinion 

For the Point of Master & Serv't see 3. Sal. 234. 
Vide Sir J. Randolph's Argument Fr. Pit. No. 56. 

Doe Lessee of Myhil ag't Myhil. 

Edward Myhil seised in Fee devises the Premes in Question 
to his Daughter Eliz. for Life Rem'r of one Moiety to Edward 
Son of Lockey Myhil in Tail Male and of the other Moiety to Joshua 
Myhil in Tail Male with sev'l other Rem'rs over in Tail Rem'r 
to his own right Heirs. In which Will there is a Clause in these 
Words ** Whereas to my unspeakable Grief my Wife Ann did 
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B164 VIRGINIA COLONIAL DECISIONS 

whole Verdict or that the Husband had not Access It would 
therefore be absurd as well as full of Mischief & Inconvenience 
to look upon this Will as any Evidence as to this Point or at 
all to influence the Determination of it And I hope it will be 
entirely thrown out of the Question Vi. Mace. R. 439. 

And then I take the Case to be very clear for if any Presump- 
tion is to be made it ought to be in Favour of Legitimation which 
the Law always favours insomuch that in many Instances no 
Proof will be admitted ag*t it As if a Child is born but one Day 
after^ the Marriage & the Child was begot by another such Child 
is legitimate & no Proof or Averment will be admitted ag't the 
Legitimacy L Ro. Abr. 358. 2. 3. This is certainly as hard a 
Case as where a Man & his Wife live separate but public Con- 
venience makes such Institutions necessary & the Judges in 
their Determinations inviolably adhere to them The Point of 
Bastardy & Legitimacy depending altogether upon the particular 
Laws of each Society & differing almost in every Country 

Sir J. R. for the Deft, insisted upon 2 Points 

1. That the Lessor of the Pit. was a Bastard 2. If he was 
not [155] yet he was clearly excluded by the Intention of the 
Testator in his Will to take any Estate in the Premes He agreed 
the old Law to be as it was opened And sayed it was introduced 
by the Superstition of Rome upon the Opinion & Doctrine that 
Marriage was a Sacrament But that since the Reformation the 
Law had been otherwise taken That the Cases cited out of 
Rolle were all before the Reformation except that Fo. 358. 4. 
which was in the Star Chamber & therefore not of much Authority 
That Coke built upon the old Authorities but the Judges in 
later Times had exploded these barbarous & absurd Resolutions 
And cited a Case in 1717. out of a Book Pa. 94. concerning 

the Removal of a Bastard from one Parish to another where a 
Child born of a Wife was adjudged a Bastard tho* she lived all 
the time in St. Andrews Parish the Husband in St. Brides — But 
note it appears in the Case the Husband & Wife had not seen one 
another & so within the Rule in Sal. 123 — He sayed that the 
Jury having found they separated 5 Years it must be intended 
there was no Access That a Negative was not to be proved & so 
the Jury could not find otherwise than they have 

He agreed the Will if it stood single would not be Evidence 
but being supported by other Circumstances ought to be taken 
Notice of He cited the Case of Reason & Franter for the Murder 



BARRADALL'S REPORTS B165 

of Mr. Lutterall State Tryals Vol. 6. Fo. Where Mr. 

Lutterells Declaration after he was wounded being his last 
Words was given in Evidence And that a Will was the last Words 
of a Man & ought to be believed especially where it was supported 
by other Circumstances And so concluded upon the whole that 
the Lessor was a Bastard 

To the 2. Point he sayed it was clearly the Intention of the 
Tes'tor that the Lessor of the Pit. should take nothing And 
therefore by the Remainder to his right Heirs he must intend 
his next Heir exclusive of the Lessor And so the Person who 
was such next Heir might take by that Remainder and that 
right Heir in this Case was only Descriptio personcB He sayed 
the Rule laid down by Coke 1 Rep. lOS.Shelleys Case & L Inst. 
24. b. 26 b. & 164 a. that a Person who will take as Heir by 
Purchase must be a compleat right Heir was only Cokes Opinion 
& was a groundless Distinction inconsistent with Right, Reason 
& common Sense That in Wills the Intention of the Testator 
is to govern And therefore an Heir Male might take by a 
Devise tho* he was not a compleat Heir if it appeared to be the 
Intention in the Will And for this cited 2. Vem. 732. New- 
comen & Barkham 

To the 2. Point it was answered for the Pit. that so wild an 
Argument could not be expected & therefore nothing had been 
sayed upon this Head That the Lessor claimed nothing by 
the Will but was in by Descent That no one could take any 
Estate by Force of the Remainder to the Tes*tors right Heirs 
that Remainder being void That it was one of the most known 
& settled Rules in Law where a Man makes a Gift in tail Re- 
mainder to his right Heirs such Remainder is void. 1. Inst. 22. 
b. So it was in this Case And the Reversion is indisputably 
in the Heir at Law of the Devisor * ■ ' * ' ^ 

[156] But admitting the Remainder good The Rule of Law 
wherever a Person will take as Heir by Ptirchase he must be a 
compleat Heir (however slighted) is an established Rule & was 
never denied & has not only Cokes Authority but Dy. 274. Hob. 
31. It must be owned however that in Devises a Man may 
sometimes take as Heir or Heir Male without being a compleat 
Heir either from the apparent Intention of the Testor that such 
a particular Person thall take or where the Word Heir &c. is 
taken only as Descriptio -personcB 1. Ven. 372. Pibus & Mitford 
2. Ven. 311. Jones & Richardson. 2. Cases cited in 2. Vem. 732. 



B166 VIRGINIA COLONIAL DECISIONS 

supra. And that Case in Vernon which is no more than this 
that one as Heir Male tho' not Heir general may take by the name 
of Heir Male as a suffic't Description of the Person the Testors 
Intention appearing to be so If it could be pointed out in this 
Case who the Tes'tor intended by his right Heir these Cases 
might be somewhat applicable But without that they are 
nothing to the Purpose However that be the Remainder here 
in its Creation was void & the Reversion undisposed of by the 
Will which descended to the Heir at Law upon the Testors 
Death & accordingly we claim it as Heir 

Judgm't Oct. 1735. that the Lessor was a Bastard And that 
he was excluded by the Will per totam Curiam 

Vide Sir J. Randolph's Argument Fr. Pit. No. 52. 



OCTOBER COURT MDCCXXXVI. 
Legan Lessee of Chew ag't Stevens. 

There has been a Survey with a Jviry in the Country & a 
special Verdict found here Upon which the Case is In Sep*r 1726. 
Col. Taylor a sworn Surveiorsurveied (or pretended to survey) for 
the Lessor of the Pit. 1000 Acres of Land of which he returned 
a Plat & a Pat. was granted June 16. 1727. This Land except 
about sixty Poles from the Beginning was not marked or meas- 
ured before issuing of the Pat. And this Chew the Lessor of the 
Pit. knew The Deft, afterwards surveys 1000 Acres & obtains 
a Pat. in Sep'r 1728. which takes in Part of the Land within the 
bounds of Chews Pat. This was marked and measured & the 
Surveyor (the said Taylor) told the Deft, the Land was free & 
not taken up before It appears by the Jurys Report in the 
Country that the Surveior told Chew when he began his Survey & 
run the sixty Poles that [157] he could not then finish it being 
Saturday Night but would when he came up to finish 2. other 
Surveys he had begun the Day before It appears also that in 
Jan'ry 1728. when the Deft, first began to seat his Land Chew 
forewarned him from digging upon the Land in Controversy 
The Survey is of no other Use than to shew how the Grants 
interfere And the sole Question in the Case is whether the 
Grant to Chew the Lessor be good or not 

The Objection is that the Surveyors returning a Plat without 
marking & measuring the Land & that with Chews Privity is a 



BARRADALL'S REPORTS B167 

false Suggestion And so the King was deceived & therefore 
his Grant void 

This Point has been once already laboured very strenuously & 
once YoV Hon'r has determined that the Grant is good But 
Sir J. R. is now to convince you of your Mistake However I 
hope this case will not be drawn into a Precedent that after 
Judgment is passed a Cause shall be suffered to be argued again 
because a Lawyer or his Client happen not to be satisfied 

It must be my Task to endeavour to shew that this Grant is 
good And tho' I shall not produce so many Cases as I presume 
you will be entertained with on the other side I hope to prove 
1. That there is no such Deceit in this Case as will make void 
the Kings Grant 2. That to determine this Grant void will 
introduce a general Mischief & Inconvenience upon the Subjects 
here 

As to the 1. The King is of that great Eminence & Considera- 
tion in the Law that many little Defects & Omissions will make 
his Grant void w'ch in the Case of a common Person have no 
such Effect Such are Misrecitals wrong Suggestions nonrecitals 
&c. But the Reason is not as I conceive because the Kings 
Honour is concerned as was argued last Coxirt But because 
the King is supposed to intend the great Affairs of Govemm't & 
cannot take Notice of Matters of lesser Moment as a common 
Person may & ought to do Hob. 224 And the true Reason why 
the Law adjudges the Kings Grants void in Cases of Deceit are 
1. To punish the Party for his Fraud 2. To prevent Damage & 
Prejudice to the Kings Interest which would often happen if 
such Grants were allowed Hob. 223. 

Yet it is not every Circtmistance that strictly may be called 
Deceit nor every Wrong Suggestion that will make void the 
Kings Grant and where the King is not deceived in the Cons, 
in his Title in the Value of the Land or in the Restraint he 
intended to make for his Benefit Or generally where it is not 
to the Prejudice of himself or his Subjects the Grant will be 
good Even false Considerations will not always defeat the 
Kings Grant As where it is personal & executed As for Mony 
p'd or Service done tho' the Mony was not actually paid or the 
Service done the Grant will be good 10. Rep. 67. 68. St. Saviors 
Br. Patents 4 Mo. 415. Sav. 37. 3. Leon. 248. PI. 455. a. The 
Reason is tho' this be a Deceit Yet the Law does not esteem it 
so weighty or material as to destroy the Grant Hob. 222. 



B168 VIRGINIA COLONIAL DECISIONS 

If there was any Thing in the Argument of the Kings being 
injured in Point of Hon'r this sort of Deceit is as injurious to his 
Hon'r as [158] any other But as I never read or heard of that 
Argument till last Court until I have some better Authority 
for it than Sir J. R. he must excuse me if I look upon it as a 
meer refined Speculation of his own In other Cases it has 
been thought to be for the Honour of the King to make his 
Grants valid not to destroy them as in the Point of Construction 
If 2. Constructions can be made and by one the Grant will be 
void and by the other good For the Honour of the King & 
Benefit of the Subject such Construction shall be made as will 
support the Grant 10. Rep. 67. b. St. Saviors. 6. Rep. 6. Sir 
John Molin. And certainly it is more for the Honour of the 
King to pass over small Faults where it is not to the Prejudice 
of himself or his Subjects than to be too rigorous in taking 
Advantage of them In the Case of a Common Person I am 
sure we should think so. 2. Inst. 496. 497. 1. Mod. 196. 

Read Hob. 222. & St. Saviours Case 2. Inst. 2. Mod. 1. 

If the King by Office found has a Mannor in Ward & grants the 
said Mannor by certain Name which said Mannor was lately 
seised in our Hands &c. And in Truth the said Mannor was not 
seised This shall not avoid the Grant tho' false for it is not 
material & was only added for the greater Certainty of that 
which was certain enough before 10. H. 4. 2. Sir John Lestrange. 
cited in Legats Case 10. Rep. 113. a. 

Q. Eliz. granted to Thos. Markham the Office of Keeper of the 
Parks of Woods of B. which said Office the E. of Rutland lately 
held whereas the said E. never held the said Office And it was 
resolved by the Chancellor Attorney & SoUicitor general to 
whom it was referred that the Grant was good notwithstanding 
that false Suggestion So if the King demise a Mannor by 
special Name which Mannor was lately in the Tenure of I. S. 
but in Truth he never had it. Yet the Grant is good for in 
these Cases the King is not deceived in his Title nor in the 
Value of that he intended to grant nor in the Restraint which 
he for his Profit intended to make. Sir Tho. Markhams Case 
cited in Legats Case supra — Qtiod lege — 

H. 7. Anno 19. granted to G. B. the Mannor of B. in Tail Male 
And Anno 24. by Letters Pat. reciting the former & that they 
were surrendered & cancelled by Virtue whereof the King was 
seised in in Fee granted the said Mannor to the said G. B. & F. 



BARRADALL'S REPORTS B169 

his Wife & the Heirs of G. (without any Grant of the Reversion) 
And the Question was if the Reversion would pass by this last 
Grant It was objected 1. that the Estate tail was not recited 
as continuing whereof the Reversion might be granted but as 
determined And therefore the King granted it as a Thing in 
Possession when he had only the Reversion expectant 2. The 
King thought by the Surrender of the first Letters Pat. the 
Estate tail was determined & that he was seised in Fee in which 
he was deceived 3. The King was deceived in the Estate he 
granted for he intended to grant an [159] Estate in Fee in 
Possession & not a Reversion expectant But it was adjudged 
that the Grant was good to pass the Reversion for here was no 
Wrong done to any one and less passed by the Grant (sc. the 
Reversion) than the King intended and .so no Prejudice to him 
6. Rep. 55. Lord Chandos. Lege 2. Mod. 1. 

Where was the Regard to the Kings Honour in this Case or 
those others I cited Yet it is evident he was deceived but the 
Deceit was not material no Ways to his Prejudice & so not 
weighty enough to make void his Grant. Many other Instances 
of the like Kind might be given but these I hope may suffice 
to show that tho* the King be deceived if it be not in the Con- 
sideration that is real in his Title in the Value of the Land or in 
the Restraint he intended to make for his Benefit the Grant may 
be good. It will remain then to consider whether the Kmg 
was so deceived in the present Case whether the Deceit alledged 
be so weighty or material as that it should make the Grant void 

The Method established here for granting the Kings Lands has 
been always the same a Survey is first to be made and a Plat 
returned before any Patent issues Not that there is any positive 
Law for this but it has been the Course and Usage from the 
first Settlement and took its Rise & continues its Force meerly 
from the Kings Authority & Institution who no Doubt may 
establish any other Method for granting his Lands if he pleases 
Now that many Patents must have been granted formerly 
without the ceremony of marking & measuring the Land (the 
Want of which is the great Fraud & Deceit here complained of) 
must be evident to any one who considers the State of Things 
upon the first Settlement of the English here The Indians were 
then in great Numbers all over the Country and it could not be 
done with any Safety or Security and indeed the Disputes we 
have concerning the Bounds of the old Grants prove this Point 



B170 VIRGINIA COLONIAL DECISIONS 

to a Demonstration since in many of them there appears never 
to have been any marked Lines or Boundaries and ahnost in all 
a vast Difference between the Courses & Distances of the Pat & 
the ancient Possession under them But I never yet heard 
that any of those Grants have been impeached because the 
Land was not marked &c. tho' we may expect they will if it is 
Your Honors Opinion that that Defect is sufficient to avoid the 
Kings Grant That being equally necessary then as now There 
was no positive Law then nor is now making it necessary or 
essential and therefore by the same Reason that a Grant made 
ten years ago is void for Want of that Circumstance A Grant 
made 50 or 100 Years ago must be void for Want of the like 
Circumstance The Length of Time will make no Difference in 
the Case of the King 

It will be sayed perhaps there is an Act of Assembly directing 
the Surveior to bound the Land surveied by him by marking 
Trees And it is true there is such an Act And no Doubt the 
Surveior ought to have done it But then I must observe that 
Act is meerly directory [160] to the Surveior The Title is An 
Act directing the Duty of Surveiors 4. Ann. c. 22. And the 
whole Scope of it plainly shews nothing more was intended 
There is not a Sillable of the Kings Grants Or that they shall 
be void if the Surveior does not do his Duty. Nor would the 
King I presume be pleased to be so prescribed to This Act then 
is nothing to the Purpose only to shew the Surveior has not 
done his Duty which I allow But it is no Consequence I 
hope that therefore the Kings Grant is void I am sure the Act 
says not such Thing. 

But here Chew the Grantee was privy to this Neglect of Duty 
in the Surveior And this is made a mighty aggravating Cir- 
cumstance It may be necessary therefore to obviate the 
Force of that Objection It was sayed last Court that the 
Grant was a meer Forgery That there was a Combination 
between Chew & the Surveior tho' to what End I know not & 
shall be glad it may be pointed out It is found indeed that 
Chew knew the Land was not marked or measured when he 
took out his Plat but then it appears in the Depositions that 
the Surveior when he begun the Survey made an Excuse for 
not finishing it That it was Saturday Night but promised to 
do it when he came up to finish some other Surveys This 
Chew might reasonably suppose^ he would do in nine Months 



BARRADALL'S REPORTS B171 

which passed before he sued out his Pat But admitting he 
was somewhat too hasty in getting a Plat & obtaining a Pat. 
before this was done I cannot see how this can be term'd a 
Fraud it was rather a piece of Ignorance an Error of the Judg- 
ment not any depraved or sinister Intention Nor does there 
appear any Advantage he could possibly propose by it to 
himself Nor any Fraud upon the King for the full Composition 
was paid Nor more Land within the Bounds than mentioned 
in the Grant and the full Quitrents honestly paid ever since 
Neither could he intend or foresee any Prejudice to another. 
He might well think the Surveior would finish his Survey accord- 
ing to his Promise And if he he did not do it 'tis he alone is 
guilty of the Fraud & not Chew and ought to answer for the 
Injury done to the Deft, which he or his Representatives may 
undoubtedly be compelled to notwithstanding the contrary 
was asserted last Court 

This mighty Fraud then in Chew of being privy to the Sur- 
veyors Neglect when fairly stated & considered appears to be 
no more than a piece of Ignorance & folly without any Prob- 
ability of a fraudulent or sinister Intention either with Respect 
to the King or any one else. The Surveior is undoubtedly inex- 
cusable But then whether his Neglect of Duty ought to make 
void the Kings Grant must be humbly submitted 
[161] I shall now speak a Word to the 2. Point which was to 
shew the general Mischief & Inconvenience that will be intro- 
duced if it is determined that any Neglect of Duty in a Surveior 
or his omitting to mark & measure the Land surveied shall 
make void the Kings Grant I have had Occasion already to 
speak of the old Grants upon the first Settlement here by the 
English And it is evident I hope from what has been sayed 
that the Lands then could not be marked or measured It is 
further notorious that in later Times Surveiors have been very 
remiss & negligent in their Duty. Many Plats upon which 
Grants are founded have been returned without stretching a 
Chain or marking a Tree Therefore if it is determined that 
Grants are void for these Slips & Frauds of the Stirveior it will 
introduce an universal Confusion & shake for ought I know 
half the Titles in the Country No Purchasor can be safe under 
a Possession tho* ever so long if the Crown thinks fit to repeal 
the Grants far no Time will bar the King In short to deter- 
mine that a Grant is void because the Surveior did not mark & 



B172 VIRGINIA COLONIAL DECISIONS 

measure the Land before he returned his Plat will be in Effect 
to declare that half the Patents in this Country are void 

Now the Judges in their Determinations have Regard to the 
Generality of the Subjects Cases & the Inconvenience that may 
ensue 1. Rep. 52. Vaughan lays it down as a Rule that where 
the Law is known & cleax tho' unequitable or inconvenient the 
Judges must determine as the Law is But where the Law is 
doubtful & not clear the Judges ought to interpret it to be at 
least inconvenient To apply this — As it is far from being clear 
that the Defect of the Surveior in not marking & measuring the 
Land is such a Deceit or false Suggestion as will make the Kings 
Grant void and as such a Determination will be introductive of 
a general Mischief & Inconvenience & tend to destroy many 
Mens Titles to their Inheritance I hope it will not be Your 
Honours Opinion. 

As to any Hardships that may be pretended on the Defts. 
part And I remember a great deal was sayed af that last Court 
I hope Chew is not to answer for that it being altogether the 
Surveiors Fault of whom he must seek for his Remedy And as 
to losing his Houses which is Part of the Hardship complained 
of that is owing to the Defts. own Folly & Obstinacy since it 
appears Chew forewarned him building upon the Land in Con- 
troversy alledging it was within his Bounds And the Deft, could 
not be ignorant that it was so by offering to purchase of him 
So his Damage upon this Account is of his own Seeking & ought 
not to be at all considered And I must submit whether the 
Hardship will not be as great upon Chew to lose his Land meerly 
for a Neglect of Duty in the Surveior for I can consider it in no 
other Light when he has honestly paid the King his Rights 
which is in the Nature of Purchase-mony Has no more Land 
than he ought to have and has paid the full Quitrents ever since 
the Time of his Grant. But in Truth the Hardships on either 
[162] Side should be thrown out of the Question And the 
general Inconvenience is what ought to be considered This I 
hope I have sufficiently shewn And so humbly pray Judgm*t 
for the Pit. 

Randolph for the Deft. The Question is not Whether the 
Pits. Grant be absolutely void but whether it be good ag't the 
Deft, who has obtained a fair Grant & observed all the Rules 
prescribed by the Law whereas the Pits. Grant is a meer Forgery 
procuring a Plat to be returned & taking out a Patent upon it 



BARRADALL'S REPORTS B173 

when he knew the Land was not surveied was a very great 
Fraud upon the King a false Suggestion of the Party himself 
and must make the Grant void At least so far as not to hurt 
an innocent Person as the Deft, is The Rules for granting 
Lands here have been the same from the first Settlem't of the 
Country The first Charter to the Company impowered the 
Gov*r & Council to settle the Priviledges of Adventurers which 
was done by allowing 50 Acres to each Adventtirer The same 
Course was observed after the Dissolution of the Company 
without any positive Authority till the Time of Ja. 2. When a 
new Clause was added to the Governors Commission to grant 
50 Acres for Importation but no Land was granted for Money 
till 1703. Surveying was always necessary & required before 
any Grant was made And where an essential Circumstance is 
wanting the Grant must be void Vemons Case 1. Vern. 370. 
Vernon & Benson Mod. Ch. Ca. 47. Much more here where the 
Party himself was privy to this Neglect of Duty in the Surveior 
and so joined with him in the Deceit upon the King The Par- 
taker in a Fraud is equally guilty with the Contriver The 
Law abhors all kind of Fraud A Fine tho' the most solemn 
Conveiance if levied by Fraud & Covin is void 3. Rep. 77. Fer- 
mores Case As to the Inconvenience this Case must be distin- 
guished from those where the Surveior alone is in Fault and the 
Grantee no Ways privy In that Case it might be hard that an 
innocent Person should suffer for the Neglect of Duty in an 
Officer but here the Party knew the Officer had not done his 
Duty It was a Contrivance & Combination between them 
and a great Piece of Presumption & a notorious Deceit upon 
the King for the Pit. to take out a Pat. upon such a Piece of 
Forgery as the Plat was Surely no Favour or Countenance is 
due to such a Practice Especially when an innocent Man is to 
be oppressed & ruined by it 

To prove the Grant void were cited Alton Woods Case 
1. Rep. 40. b. Vows Case cited in Legats 10. Rep. 110. b. 
[163] In April 1735. Judgm*t was given for the Pit. by the 
Opinion of 7. Judges ag't four But upon the great Importunity 
of the Defts. Council the Court was prevailed upon to hear 
another Argument which was made October 1736 when Blair & 
Byrd having changed their Opinions Judgm't was given for the 
Deft, by the Opinion of those two & Randolph Grymes Carter & 
Digges — Lee Tayloe Custis Robinson & the Governor con. 



B174 VIRGINIA COLONIAL DECISIONS 

Lightfoot formerly for the Deft, now doubted Carter did not 
hear the I. Argument 

Note The Courts Opinion turned upon the Fraud (as it was 
termed) in the Pit. viz his knowing the Land was not surveyed 
Vide Sir J. Randolph's Argument Fr. Deft. 

No. 53. & post cod. Lib. 



OCTOBER COURT MDCCXXXV 
Legan for Armistead ag*t Newton. 

The Lands in Question were granted to Behethland Gilson 
by Pat. Sep'r 27. 1667. And again granted to Tlios. Gilson Oct. 
20. 1670. as lapsed from Behethland She at the time of the 
Grant to her was but a Year old Died in Oct. 1693. being then 
the Widow of one Stork And by her Will devised the Premises 
to her Daughter Eliz. whose Heir apparent the Deft, is Eliz. 
was bom in 1687. married in 1702. to the Defts. father who died 
in 1728 the Land was first seated for Behethland in 1692. ac- 
cording to the Law then & no Seating before The Deft, has 
Behethlands Right & is 33 Years old In May 1705. Augustine 
Smith obtained a Grant of the aforesaid Lands as lapsed from 
T. Gilson and the Lessor of the Pit. has his Title Smith seated 
it according to the Condition of his Grant But except the 
seating by Behethland & that by Smith no Person has ever 
lived upon the Land till the Deft, ent'red in 1729 & settled a 
Plantation Only one Daniel after 1710 by Permission of the 
Lessor tended part of the Land sev*l Years Smith & the Lessor 
have paid the Quitrents from the Time of the Grant to Smith & 
even since the Defts. Entry to this Time And whether the 
Lessor or the Deft, have Title to these Premises is the Question 

For the clearer Understanding of this Case I shall divide 
what I have to say into 5 Points or Questions 1. 1 shall consider 
whether the Infancy of Behethland the first Grantee did or 
could excuse the Forfeiture for the Breach of Condition in not 
seating within [164] three years If not then 2. Whether the 2. 
Grant to T. Gilson was good 3. Whether the seating in 1692. 
by Behethland did or could give her any Right or be taken as a 
Performance of the Condition either of the 1. or 2. Grant so as to 
make the 3. Grant to Smith void 4. If this Seating be taken as 
a Performance of the Condition of the 2. Grant Whether the 



BARRAD ALL'S REPORTS B175 

Deft, has any Title under T. Gilson the 2 Grantee. '5. Admitting 
the Grant to Smith is void Whether the Possession of the Lessor 
of the Pit. above 20 years before the Defts. Entry was not a Bar 
to that Entry and is a good Title in the Lessor 

L I take it to be very clear that the Infancy of the Grantee 
will not excuse the Breach of the Condition There are 2 sorts 
of Conditions in Law or [sic] implied in Deed or express The 
Breach of Conditions in Law in the Case of Infancy will some- 
times cause a Forfeiture & sometimes not 1. Inst. 233. b. 380. 
b. 8 Rep. 44. b. But Infancy will never excuse a Forfeiture in 
Case of the Breach of a Condition in Deed As if Land be given 
to an Infant upon Condition or he purchase such Estate or even 
if an Estate upon Condition descend to him he is bound by such 
Condition & must take Notice of it at his Peril for if the Con- 
dition be broken during his Minority the Land is lost Bro. 
Condition 114. Coverture & Infancy 71. Plo. 375. Stowell 8. 
Rep. 44. b. Whittingham 1. Inst. 380. b. 1. Mod. 86. 300 & 2. 
Lev. 22. Porter a Fry a notable Case An Estate was given to 
a Grandaughter an Infant upon Condition she married with 
Consent and if she married without Consent Then Devise over 
She married without Consent under Age And one Point adjudged 
is that her Infancy would not excuse the Breach of the Con- 
dition And even Equity refused to relieve ag*t it And so 
in the Case of Bertie & Lord Falkland 2. Vern. 343. the like point 
was resolved. Lege 8. Rep. 1. Mod. 

This is the Law in the Case of a Subject and it is stronger in 
the kings Case for these Conditions are always taken strictly & 
as most for the Kings Benefit 

If the Act of 11. Ann. c. 4. for saving Infants Rights in Case 
of Lapse should be objected I answer an Act made so long after 
and providing only for Cases futurely happening can never in- 
fluence this Case Besides this Case is not at all within the Pur- 
view of that Act which only saves Infants Rights in Case of 
Lapse not where they are original Grantees or Purchasors And 
now I have mentioned this Act I must take Notice of it as a 
further Proof that Infancy will not excuse the Breach of a Con- 
dition for if it would this Act had been needless I hope then it 
is clear that the Infancy of Behethland the first Grantee did 
not excuse the Forfeiture for the Breach of Condition And it is 
next to be enquired 

2. Whether the 2. Grant to T. Gilson be good It is the Nature 



B176 VIRGINIA COLONIAL DECISIONS 

of an Estate upon Condition that if the Condition be broken the 
[165] Grantor has a Right of Entry If he cannot enter as in some 
Cases he cannot he must make a Claim And in either Case of 
Entry or Claim the Estate determines & not before 1. Inst. 218. 
a. It will be objected perhaps that the King cannot enter for 
a Condition broken till the Breach is found by Office Pop. 26. 
And I agree that regularly there ought to be an Office But then 
I say it was never practised in this Country I mean in a strict & 
formal Sense for something in the Nature of it has been always 
used and practised at least from the Year 1662. By an Act 
made then c. 69. No Pat. is to be granted for Land as deserted 
for Want of planting within 3 Years till Proof be made before 
the Governor & Council & an Order from them for the patenting 
thereof Thus the Law stood here till the 9. Ann. c. 13. when a 
new Method was established for this Purpose which is too well 
known to need reciting The old Method as well as the new were 
instituted in the Room and are in the Nature of an Office. It is 
indeed notorious that under the old Act Lands were frequently 
granted upon a meer Suggestion that they were lapsed without 
any further Enquiry And therefore this Court upon Proof made 
that the Land was saved has frequently adjudged such 2 Grants 
to be void & with good Reason because they were founded upon 
a false Suggestion and the King was deceived But there can 
be no Pretence of that Kind in this Case because it is found 
in the Verdict that this Land was not seated till 1692 above 
20 Years after this second Grant And at this Distance of Time 
it must be presumed the Grant was regularly obtained according 
to the Directions of the old Act since nothing appears to the 
contrary And in the Grant itself it is mentioned to be by Order 
of the General Court If then this Grant was regularly obtained 
there was an Enquiry in Nature of an Office according to the 
Course & Practice of those Times and then the King might enter 
as he did & granted the Lands to T. Gilson And such Grant is 
undoubtedly as good as any other under the same Circumstance 
Nor has the Validity of such Grants been ever disputed except 
where it has been proved that the Land was saved Here then 
is a Period to Behethlands Right & Title under the first Grant 
And the legal Estate in the Premises vested in T. Gilson How 
Behethland ever gained any other Right or Title will be incum- 
bent on the Deft, to shew for my Part I cannot so much as guess 
at it for I cannot conceive 



BARRADALL*S REPORTS B177 

3. That her Seating in 1692 (w*ch is the 3 Point) could give 
her any Right or be taken as a Performance of the Condition 
of the 1. or 2. Grant which if it should would consequently make 
the 3. Grant to Smith void. I have before observed that if the 
Grant to T. Gilson was good the Legal Estate of Behethland 
determined when that Grant was made I cannot conceive then 
how a tortious Act of hers 20 Years after could regain that 
Estate she had forfeited so long before I call this Seating of 
hers in 1692. a tortious Act [166] for if the Grant to T. G. is 
good & his Estate continued it was a Disseisin or Trespass upon 
him If his Estate did not continue but was become forfeited 
it was an Intrusion upon the King I am really at a Loss to divine 
what Arguments can be made Use of to prove that such an Act 
can give any legal Right or Title And therefore I must be silent 
till I hear what they are Sure it won't be pretended this was 
any Performance of the Condition of the 1. Grant to Behethland 
20 Years after the Condition broken and Entry made for the 
Breach & thereby the Estate determined 

Neither can this Seating be taken as a Performance of the 
Condition in the 2. Grant as I humbly conceive being so long 
after the Time Hmited in the Grant for Performance I shall 
admit that a Seating by one who has no Right shall enure to the 
Benefit of those who have Right but then I think this Seating 
ought to be within the Time limited Suppose we were in the 
Case of a Subject an Estate is granted upon a Condition to be 
performed within 3 Years which is not done the Grantor does 
not enter but suffers the Grantee to continue in Possession who 
many Years afterwards performs the Act required by the Con- 
dition I believe this would not be taken as a Performance of 
the Condition or bar the Grantor of his Entry And if not in the 
Case of the Subject much less in the Kings Case where Con- 
ditions are always taken strictly & as most for the Kings Benefit 
And the Equity will sometimes interpose to save a Forfeiture 
where the Design & Intention of the Grantor is fulfilled tho* the 
Condition be not strictly performed That was never known 
in the Kings Case. Besides the Intention here was not fulfilled 
which was to have the Land seated & cultivated I conceive then 
this Seating in 1692. was no Performance of the Condition of the 
2. Grant And then the Grant to Smith 1705 is a good Grant And 
the Lessor of the Pit. has a clear Title 

4. But if this Seating can be taken as a Performance of the 



B178 VIRGINIA COLONIAL DECISIONS 

Condition of the 2. Grant It must next be seen if the Deft, 
has any Title under T. Gilson the Grantee Upon which Head I 
shall not need to say much because I am sure no Title at aU 
appears either in the Deft, or Behethland Under whom alone it 
is the Deft, pretends to claim They were neither of them Heir 
to T. G. Nor was any Conveiance ever made by him of his 
Right So that there can be no Pretence of any legal Title under 
him. If they will set up an equitable Title as I don*t know what 
they may pretend to It will be unnecessary to give any Answer 
We are at Common Law and I presume the Determination will 
be upon the legal Title & not any imaginary equitable one if any 
such is pretended. 

5. Admitting the Grant to Smith is not good Then it is to be 
[167] considered Whether the Possion of the Lessor of the Pit. 
above 20 Years before the Defts. Entry was not a Bar to that 
Entry & gives the Lessor a good Title in this Case 

By the Stat. 2L Jac. c. 16. s. 1. 2. which are enacted here ioti- 
dent verbis 9. Ann. c. 13. (a) Any Person having a Right of Entry 
must make that Entry within 20 Years after the Title descended 
or accrued or is barred from such Entry With the usual Savings 
to Infants Feme-coverts &c. who may enter within ten Years 
after the Disability removed This Act being express that the 
Party shall be barr'd if he does not make his Entry within 20 
Years A Possession of 20 Years is compared to a Descent that 
totls Entry And therefore if a Man has been so long in Possession 
& another enters upon him & puts him to his Ejectment That 
Possession shall be as good a Title in him (tho* Pit.) as if he 
was Deft. & still in Possion because the Defts. Entry was not 
lawful 2. Sal. 421. Stokes a Berry There is another Rule too 
that if a Man has a prior Possion & another enters upon him 
without Title the Priority of Possion is a good Title ag*t such an 
Entry Vaugh. 299. Craw a Ramsey 2. Saund. 112. The Lessor 
of the Pit. & those he claims under were in Possession from the 
Time of Smiths Grant in 1705. till the Defts. Entry in 1729. 
w*ch is 24 Years And this Possession is a good Title unless some 
Incapacity has intervened in the Deft, or those he claims under 
Admitting any Title does appear for him And if no such does 
appear Then the Priority of Possion is a good Title ag't the Defts. 
Entry without any Title at all, Lege Salk. Because I would 

(a) It is not so. See the Stat. & the Act. 



BARRADALUS REPORTS B179 

not take up Time unnecessarily I will agree that if Behethland 
had a good Title in her at the Time She devised to her Daughter 
Eliz Our 20 Years Possion will not avail because Eliz. in whose 
Time our whole Possion was has been under the incapacitys 
of Infancy & Coverture during all that Time But I hope it is 
clear she had no Title after the Grant to T. Gilson And then 
tho' the Seating in 1692 should be taken as a Performance of 
the Condition of the 2. Grant & so the Grant to Smith is void 
Yet the Deft, having no Title under T. G. Our Priority of Possion 
is a good Title ag't his Entry At least the 20 Years Possion is 
undoubtedly a good Title ag*t T. G. & all claiming under him 
there appearing no Incapacity as to them 

Randolph for the Deft, sayed the Question was whether the 2 
or 3 Grant were good That where an Estate was granted upon 
Condition tho' the Condition was broke the Estate continued till 
Entry of the Grantor And where an Entry was necessary in the 
Case of a Subject an Office was so in the Case of the King There- 
fore that the Breach of the Condition of the first Grant must be 
found by Office before the Estate of the first Grantee was de- 
termined That it did not appear in this Case by any Proof 
that the Condition of the first Grant was broken before making 
of the 2. Grant nor even so much as that the Party was summoned 
which was certainly requisite according to natural Justice but 
the 2. Grant might be made without any Enquiry into the Truth 
or hearing the Party as Grants frequently [168] were in old 
Times & then it is certainly void He cited Pop. 53. to prove 
that an Office in the Kings Case countervailed an Entry in the 
Case of a Subject {QtuFre of this for by Pop. 26. there must be 
an Entry after the Office) He compared this to the Case of 
Carter & Baylor tho' there is really no Kind of Similitude be- 
tween 'em. That Case which happened in [sic] was in short 
this Edward Hill obtained a Patent in 1683. for 2717 a. In 1693. 
he gave the Land to Ed. Chilton & Hannah his Wife (who was 
his Daughter) & their Heirs In 1698 Ed. Chilton (alone) sold 
to Baylor who cleared enough to save the Land according to 
the Law then And afterwards in 1704. obtained a new Grant 
of the same Land as lapsed from Hill Hannah survived her 
Husband Ed. Chilton & Mrs. Carter was her Heir And so if the 
Grant in 1704 to Baylor was not good had an undoubted Title 
And it was adjudged that Grant was not good the Land being 
saved before and tho* it was saved by a Stranger not the Grantee 



B180 VIRGINIA COLONIAL DECISIONS 

or those who claimed under him it should enure to the Benefit 
of those who had Right 

Judgm't for the Pit. October 1735 by the Opinion of Lee, 
Tayloe, Robinson, B3n'd, Blair & the Governor 

Randolph, Custis, Digges con. 
Vide Sir. J. Randolph's Arguments Fr. Def. 18° [sic] 57. 

Doe for Fitzhugh ag*t Burwell. 

The Lessor of the Pits. Title. 

Thomas Wilkinson obtained a Pat. dat. June 8. 1662 for 6000 
acres of Land formerly granted to him by Patent June 10. 1658. 
Part of which Land he sells & by his Will Apr. 25. 1688. devises 
the Rest to his Wife Ann & Daughter Eliz. and if his Daughter 
died before 14. then all to his Wife in Fee The Dau'r died before 
14. After whose Death the Wife (then Ann Goodall) by Deed 
Aug. 29. — gives the Premises devised to her to her Son-in-Law 
W*m Thomas & Hannah his Wife her only Daughter & their 
Heirs 

Thomas & Ux'r by Deed Oct. 26. 1692. sell to Wm. Fitzhugh 
the Father of the Lessor of the Pit. who devised the same to him 
And he & his Father have been in Possession ever since At least 
above 20 Years it appears by the Depcons before the bringing 
this Suit There is no Title found for the Deft. And his first 
clearing upon our Land was about 15 Years before this Suit. 

The Objection to this Title is that Thomas & his Wife were 
[169] Jointenants and she was not privately examined upon 
passing the Deed to Fitzhugh So it was merely the Deed of the 
Husband And he alone could not make a good Title Not even 
for a Moiety but the Wife after his Death might enter into the 
whole for they took by Entierties 1. Inst. 187. 188. 299. b. 351. 
a. 326. a. 

It must be owned our Title does not appear indefeazable 
Yet I conceive our Possession above 40 Years under the Grant 
from Thomas & his Wife is a good Title to maintain an Ejectm't 

If the Husband survived we have an undoubted indefeazable 
Title for he being Jointenant with his Wife would have the whole 
by Survivorship We have his whole Right and he or his Heirs 
can never claim ag't his Deed Now as at this Distance of Time 
it can't be proved whether he or his Wife died first it ought to 
be presumed that his Wife did in Favour of so long a Possession 



BARRADALL'S REPORTS B181 

for a continued & quiet Possession is a violent Presumption of 
a Title And that in the Law is taken for a full Proof 1. Inst. 6. b. 
But further this Possession would bar even the Wife & her 
Heirs (admitting she survived) in an Ejecm't unless she or they 
were under some Incapacity 20 years Possession is a good Title 
in Ejectment The Reason is that by the Act of Limitation a 
Man is barr*d of his Entry after 20 Years And therefore so long 
a Possession is compared to a Descent that takes away an 
Entry 2. Sal. 421. Stokes ag*t Berry. Vide Armistead & Newton 
ante 163. 

Our Title then may possibly be indefeazable and is undoubtedly 
a good Title ag't all but the Heirs of the Wife especially ag't 
the Deft, who ent'red without any Title at all It appears the 
first Entry (or rather Trespass) of the Deft, was but about 15 
Years ago & that only by clearing some Land And there is no 
Title or Pretence of Title set up in the Deft. If this Clearing a 
little Ground within our Bounds is adjudged a Disseisin a Man 
in this Country will hardly know when he is in Possession of Land 
I conceive the Deft, can be regarded only as a Trespassor & 
then surely our Possession is a good Title ag't him But if this 
is looked upon as an Ouster of us yet we had a prior Possession 
And that alone is a good Title ag*t one entring without any Title 
at all Vaugh. 299. Crawft Ramsey. 2. Saund. 112. 

It seemed to be agreed in the Case of Woodford & Corbin that 
if it appeared in the Verdict Woodford had had Possession of the 
Land in his Pat. (tho* not of the Spot in Controversy) he had a 
good Title And the Deft, was but a Trespassor And because 
his Possession did not appear upon the Verdict Judgm't was 
ag*t him. Now as our Possession is sound I hope Judgment will 
be for us. 

This Cause was agreed by the Parties. 

[170] LuTWiDGE a French Appeal from Stafford 

The Appellant brought an Action at Law ag't the Respondent 
upon a Bond in the Penalty of 12000 lb. Tob'o conditioned for 
Paim't of 6000 lb. Tob'o to which the Deft, pleaded Paiment. 
There was a Verdict for the Pit. and he had Judgm't for the 
Penalty to be discharged on Paiment of the Principal & Interest 

The Respond't exhibits a Bill to be relieved ag*t this- Judgm't 
setting forth that he by his marriage with the Widow of one 



B182 VIRGINIA COLONIAL DECISIONS 

Triplet became possessed of the Estate belonging to his Children 
And being willing to do the best for them in 1720 boimd out 
Francis Triplet (whom he makes a Deft.) to the Deft. Lutwidge 
who was Master of a Ship And the Bond aforesaid was given for 
Paim't of the Apprentice fee viz. 6000 lb. Tob'o which Triplet 
promised to allow out of his Estate when he came of Age 

That the Deft. Lutwidge neglected to instruct Triplet according 
to his Indentures so that he left him 5 or 6 Months before his 
Time out & was so ignorant in his Business he was forced to 
turn Bricklayer to get a livelihood 

That in 1725 or 26. the Complt. performed great Services for 
Lutwidge of more than the Value of 6000 lb. Tob'o for w'ch he 
charged nothing in Regard of his afs'd Bond That the Deft, 
by letter dated desired the Pit. to pay a small Sum of Mony 

for him & he would make him a Present of what else was between 
them which Sum the Pit. paid That afterwards the Pit. had 
considerable Dealings with the Deft. & settled several Accosts 
particularly one for 24626 lbs. Tob'o &23.1 1. 4. & the Bond never 
brought to Acc't So that Pit. never expected to be charged with 
it Apprehending the Deft, intended to acquit the same for the 
Pits, great Services 

That the Deft. Triplet after he came of Age recovered his 
whole Estate of the Pit. without allowing the said 6000 lb. Tob. 
And Pit. therefore prays to be relieved either against the said 
Judgm't or ag*t Triplet 

The Deft. Lutwidge pleads the Verdict & Judgm't af'd in Bar 
And also demurs for that there is no Equity in the Bill That the 
Pit. may have Remedy for his pretended Services at Law That 
the Court cant decree a Performance of the Agreem't concerning 
Triplets Apprenticeship nor assess Damages for the Nonperform- 
ance or for the Pits, pretended Services. That the Deft. Lutwidge 
is no Way concerned in the Transactions between the Pit. & 
the other Deft. Triplet nor ought they to be a Bar to his having 
the Effect of his Judgm't 

The County Court overruled this Plea & Demurrer w'ch I 
conceive is Error 

As to the Plea If we may credit Sir E. Coke & other old 
[171] authorities Anciently it was held that after Judgment at 
Law a Court of Equity could not interpose upon any Pretence 
whatsoever 3. Inst. 119. &c. That the Stat, of Premunire 27. 
E. 3. 1. prohibits it under great Penalties And the 4. H. 4. c. is 



BARRADALL'S REPORTS B183 

express that after Judgm't the Parties shall be in Peace till the 
Judgment is undone by Attaint or Error Thus the Law was 
taken for some Ages & there are sev*l Instances where in the 
hardest Cases the Chancery refused to relieve after a Judgm't 
at Law And many have been convicted of a Premunire upon the 
27. E. 3. for suing in Chancery after such Judgm't. 

But this Point coming in Question in the Time of James L 
It was by his Command referred to the Attorney & Sollicitor 
gen'l & other able Lawyers who certified their Opinions that 
the Chancery might relieve after a Judgment at Law And that 
the said Statutes 27. E. 3. & 4. H. 4. did not prohibit it And thus 
it rested for 40 Years till the 22. Car. 2. c. 

When An Action was bro't on the 27. E. 3. for suing in 
Chancery after Judgm't at Law The Case is King ag't Standish & 
is reported in sev'l Books. L Sid. 463. where it seemed to be the 
Opinion of Keling C. J. & Twysden that the Deft, had incurred 
the Penalty of the Stat. By 1. Mod. 59. it was adjourned for the 
Opinion of all the Judges And by 1. Lev. 40. Hale being then 
C. J. it was his Opinion that the Case was not within the Statute 
And so nothing further was done in it It was Hales Opinion 
that the 27. E. 3. did not prohibit the Chancery from examining 
Judgm'ts at Law & with good Reason because the Chancery 
as a Court of Equity was not in Esse at that Time but yet he 
was of Opinion that the 4. H. 4. did restrain the Chancery from 
examining Judgments at Common Law as appears in Cole & 
Forth. 1. Mod. 94. 

However it must be acknowledged that of late Days the 
Chancery as it has extended its Power & Jurisdiction in other 
Instances insomuch that almost all Causes of Moment are first 
or last determined there So also in this particular of relieving 
after Judgments at Law Yet this has been very sparingly done 
where there has been a Verdict & the Merits of the Cause fairly 
tried as in this Cause And there is less Reason the Chancery 
should exercise such a Power here where the strict Rules of Law 
are not very rigidly adhered to either by Judges or Juries And 
the Deft, having the Liberty of Discount which he has not by the 
Laws of England he has many Advantages in his Defence which 
he could not have in England And tho' it might be mischievious 
to carry the Point so far as never to give Relief after a Verdict 
or Judgm't Yet on the other Hand it would be much more mis- 
chievious to countenance it upon all Occasion unless there is 



B184 VIRGINIA COLONIAL DECISIONS 

some very apparent Wrong or Jnjustice in the Case And that 
for 2 Reasons mentioned by Sir E. Coke 3. Inst. 123. 1. That 
it will draw Matter determinable at the Common Law ad aliud 
exatnen which should be tried by a Jury by the fundamental 
[172] Laws of England 2. Every Pit. will choose rather to.begin 
in Equity whether he must come at last to the Subversion of the 
Common Law which last Mischief is found pretty true in Ex- 
perience as I have already observed. 

Now it will be proper to observe what is the Wrong & Hardship 
complained of here to induce this Court to unravel a Judgment 
upon a Verdict at Law And it really amounts to no more that 
this that the Compl't performed great Services for the Deft, 
for which he charged nothing in Expectation the Deft, would 
not charge him with the Bond upon which the Judgment was 
obtained This is the only Pretence that has any Appearance 
of Hardship As to the other Suggestions in the Bill concerning 
the Nonperformance of the Articles of Apprenticeship & Triplets 
Promise to allow the 6000 lb. Tob'o out of his Estate &c. I 
shall shew presently they cannot be any Reason for unravelling 
this Judgment 

And as to these pretended Services if there were really any 
such the Comprt might have made Proof of them upon the Trial 
at Law And the Jury would have made an Allowance by Way 
of Discount Perhaps this was done & the Jury thought he 
deserved nothing If it was not it was the Compl'ts Neglect 
And Equity will not relieve ag*t such Negligence 1. Ch. Ca. 43. 

But besides he does not pretend the Deft, ever promised to 
give up this Bond in Cons, of those Services tho' he would en- 
deavour to infer as much from a Letter wherein the Deft, desires 
him to pay a small Sum & that he would make him a Present 
of what else was between them But if he had intended to make 
so considerable a Present as 6000 lb. Tob. he would hardly have 
mentioned it so slightly the Letter must therefore be taken to 
relate to the subject Matter upon which it was written viz an 
Accot. of some Transactions between them that Year And this 
can never be taken as a Rel. of the Bond either in Law or Equity. 

There being therefore really no Equity in the Bill there is 
likewise a Demurrer to it for that Cause for 

1. Admitting there were really Services performed this Court 
cannot assess Damages for those Services nor give the Pit. a 
Recompence for them The proper & natural Remedy is an 



BARRADALL'S REPORTS B185 

Action at Law where a Jury will give as much as he reasonably 
deserved It is a known & settled Rule that a Court of Equity 
cannot assess Damages Nor give Relief where the Pit. can have 
Remedy at Law Now this Judgm't upon the Bond will be no 
Bar to the Pits, recovering at Law for his Services And therefore 
this Pretence can be no Reason for impeaching this Judgment. 

2. The ne^^t Pretence is that the Deft, did not perform the 
Articles of Apprenticeship but I would fain know what the Pit. 
has to do with that These Articles are between the Deft. 
Lutwidge [ 173] & Triplet And Triplet is intitled to a Recompence 
for the Breach of them if any be But suppose the Pit. was [sic] 
what can a Court of Equity do To decree a Performance of 
them is impossible Nor can they assess Damages for the Breach 
And I suppose it will not be thought reasonable the whole Ap- 
prentice-fee should be lost because some particular Part of the 
Articles was not performed The Remedy therefore here must 
be at Law to recover Damages for the Breach 

3. The last Pretence is certainly the strangest in the World 
It is a Promise made by an Infant which for anything that is 
pretended Lutwidge was an entire Stranger to Can that then 
be a Reason that he should not recover at Law because a third 
Person for whom the Mony was advanced promised to repay 
it Besides this Promise made by an Infant is ipso facto void 
Nor did Equity ever enforce the Performance of such a Promise 
And as to Triplets recoving his whole Estate without allowing 
for this Tob'o it is nothing to Lutwidge who really gave a valuable 
Cons, for this Bond according to the Pits, own Shewing viz. by 
taking Triplet Apprentice 

And so I hope it is evident there is no Equity in the Pits. Bill 
I therefore pray that the County Courts Order may be reversed 
that the Injunction may be dissolved And the Pit. have the 
Effect of his Judgment at Law. 

Vide I. Vern. 176. & 316. where Equity refused to relieve after 
a Judgment at Law 

Field a Cocke 

This is an Action upon the Case for an Escape upon mesn 
Process A Verdict is found for the Pit. but this Point was 
reserved to be argued whether Pitchford the Prisoner who 
escaped was so delivered by Winn the old Sherif (in whose 



B186 VIRGINIA COLONIAL DECISIONS 

Time he was first committed) to the Deft, the now Sherif as to 
make the Deft, chargeable for this Escape 

The Case is thus the Day the Deft, was sworn Winn the old 
Sherif brought the keys of the Prison into the Court House 
where the Deft, was & laid them upon the Table sajdng there 
were two Prisoners in Goal Upon which the Deft took up the 
Keys Pitchford was one of these Prisoners & remained in 
Goal 61 Days afterwards during w'ch Time he was fed by the 
Defts. Order till he broke Prison 

It is clear from these Circumstances the Deft, had Pitchford 
[174] in his Custody at the Pits. Suit But it will be objected I 
suppose that the old Sherif ought to have delivered him over to 
the Deft, by Indenture Without which in Judgment of Law the 
Prisoner is not in Custody of the now Sherif And 

I agree this is a formal Circumstance required by Law in some 
Cases that is where Prisoners are in Execution I call it a formal 
Circumstance because it seems to have no Foundation in natural 
Justice for if the Prisoner b^ really delivered & the new Sherif 
has him in Custody & knows for what Cause There can be nothing 
sayed why in Reason he ought not to be chargeable for his Escape 
as much as if he was delivered over by Indenture However I 
must allow this Ceremony is made necessary by our Law but 
then it is only as I sayed where Prisoners are in Exon 

I must own upon the best Search & Enquiry I have been able 
to make I do not find any Case where it is expressly & in Point 
resolved that Prisoners not in Exon need not be turned over 
by Indenture But there are sevl Cases where by necessary 
Inference I conceive the Law must be taken to be so And the 
Reason why we do not find it expressly resolved may be because 
it is a well known settled Point & so has never been brought in 
Question 

Sr. Thomas Reeds Case 2. Ro. 116 who was indicted lor suffer- 
ing a Prisoner attainted of Felony to escape An Exception was 
taken to the Indictment that it did not appear he had the Custody 
of the Prisoner by Indenture & then he ought not to be charged 
for his Escape But it was held if the Sherif took upon him the 
Custody of the Prisoner without Delivery by Indre & suffer him 
to escape he may be indicted because it is the Suit of the King 
the Case says This is an Instance where a Sherif may be 
chargeable for an Escape tho' the Prisoner be not delivered by 
Indenture and proves that Circumstance is not always necessary 



BARRADALL'S REPORTS B187 

King ag't Sir Eusebie Andrews Cro. Jac. 380. One Burdet 
was arrested upon a Latitat at the Pits. Suit by Sir John Iseham 
the old Sherif & by him in exitu ab officio left in Prison & de- 
livered to the Deft, who suffered him to escape And without 
Argument it was adjudged for the Pit. Here was no Delivery 
by Indre the Prisoner was only left in Prison The Case is some- 
what obscurely reported and the Manner of Delivery does not 
seem to be directly brought in Question but' we may presume 
it would have been insisted on if a Delivery by Indre had been 
necessary And the Decision of the Case without Argument 
makes the Inference very strong that the Law was clear & settled 
in every Point that could be insisted on Vide Dalt. 16. Notice 
by Word if accepted suffic't 

Mr. Dalton in his Office of Sherif & all other Authors I have 
read on this Subject say the old Sherif must assign over by 
Indenture all Writs not executed by him & the Bodies of Pris- 
oners in Exon Now if Prisoners not in Exon were also to be 
so assigned the Distinction would be useless & we should be told 
[175] that all the Prisoners in the Prison must be so assigned 
All the Cases I have ever read upon this Subject are where the 
Prisoners were in Exon which I think is a pretty Strong Argu- 
ment on my Side since it is reasonable to suppose there have 
been Instances enough of Prison'rs not in Exon turned over 
from one Sherif to another that have afterwards escaped And 
consequently this Point would have come in Question if it had 
not been clear & settled as I sayed If there is no judicial Reso- 
lution and I am pretty sure there is not nor any Author who 
expressly says a Delivery by Indre is necessary where Prisoners 
are not in Exon since it must be allowed to be only a meer Piece 
of Ceremony I hope it will be carried no further than the Cases 
carry it 

Another Argument I draw from the Form of the Indenture 
from one Sherif to another which we find in the Books Dalt. 13. 
In which there is no Mention made of any but Prisoners in Exon 
Now if it was usual or necessary to assign those not in Exon we 
should certainly find the Form & Manner how they should be 
recited in the Indre as well as those in Exon An Argum't from 
Precedents is very frequent in our Books & Sr. E. Coke says is 
of great weight in the Law and will be so much the greater in 
this Case as the Precedents are consistent with what all the Au- 
thors who treat on this Subject say they speaking only of Prison- 



B188 VIRGINIA COLONIAL DECISIONS 

ers in Exon which would be a needless Distinction as I have 
observed if all Prisoners were in the same Predicament as to 
this Matter 

It may be difficult to assign a Reason why the Ceremony is 
requisite in one Case more than the other but it is as difficult 
to give a solid Reason why it is requisite at all The principal 
one given in the Books is because the new Sherif without Notice 
what Prisoners are in Goal & for what Cause will not know 
whether it be lawful for him to detain them or when he may 
discharge them. But if he has such Notice without Indenture 
the End & Intention of the Law in requiring an Indre is answered 
And yet it is certain the new Sherif is not chargeable for Prisoners 
in Exon unless they are assigned by Indre to him All that can 
be sayed is that it is a meer formal Circumstance that has ob- 
tained its Force from long Usage & Custom And being nothing 
more than a Piece of Ceremony ought not to be carried further 
than to those Cases where the Law is clear & express And I 
am sure it is not so in this Case but the contrary may be rather 
inferred If then this Case is to be determined upon the Reason 
of the thing & the Principles of Natural Justice Since one of the 
Sherifs must be liable to the Pits. Action I shall submit whether 
the old Sherif who was in no Fault having given the Deft, suffic't 
Notice Or the Deft, the now Sherif who actually had the Prisoner 
in Custody a long time & then suffered him to escape ought 
to be chargeable 

On the other Side were cited Dalt. Edit. 514. 3. Rep. 71. 
[176] Westbies Case Pop. 85. S. C. 1. Sid. 335. Hanmer a Warner 
& Keb. 224. S. C. & 1. Sal. 272. Watson a Sutton. And insisted 
there was no Difference whether the Prisoner was in Execution 
or not that an Assignment by Indenture was necessary in all 
Cases And so was the Opinion of the whole Court 

Note. Sev'l were of Opinion the Action would not lie ag*t 
either Sherif unless it appeared that the Escape was thro' the 
Sherifs Negligence. 



APRIL COURT MDCCXXXVI 

IvEY ag't Fitzgerald App'l from Nansent'd 

The Case upon the Verdict is Morris Fitzgerald seised in Fee 
of 100 Acres of Land died so seised intestate & without Issue 



BARRADALL'S REPORTS B189 

After his Death Henry Fitzgerald his Brother of the half Blood 
entered & died seised & the Premises decended to his Daughter 
the Deft. The Lessor of the Pit. is Son & Heir of Tho's Ivey 
who was Uncle a parte materna to Morris Fitzgerald But is 
not found that either the Lessor of the Pit. is or his Father was 
Heir at Law of Morris Fitzgerald 

Upon this Verdict I conceive the Pit. cannot have a Judgment 
no Title appearing in his Lessor It is only found he is Son of 
the Uncle a parte materna but not that he is Heir at Law & 
unless he is so he has no Title If it should be argued that it 
ought to be presumed he is Heir I conceive the Court are to 
judge upon the Verdict as it is found & cannot add to or diminish 
from it Especially here in the Case of an Appeal the Court are 
to judge upon the Record Besides there is no great Reason to 
presume the Lessor is Heir from any Nearness of Relation it 
being very remote with Respect to the Succession in this Case 
for not only Brothers & Sisters of the whole Blood but the most 
distant Relation on the Fathers Side* have a Right to succeed 
before him And perhaps there may be many such & then he is 
not Heir in Verity But admitting he should be so in Fact as 
it is not found the Court cannot intend it If it be considered 
how absurd it must appear to Posterity that a Man should have 
Judgment to recover Land without having any Title I hope 
no more need be sayed Only this that the Consequence will be 
only paying the Costs of this Suit the Pit. may bring another 
Action. 

Admitting the Lessor is Heir his Entry is taken away and 
[177] so he cannot bring Ejectment but must resort to another 
Action to recover if he has any Title. The Case as to this Point 
is thus 

Morris Fitzgerald dies seised the Defts. father (a Stranger) 
enters & dies seised the Premisses descend to the Deft, his 
Daughter & Heir The Defts. Father in this Case was an Abator 
The Difference betw. an Abator & Disseisor is this An Abator 
is one who between the Death of the Ancestor & Entry of the 
Heir interposes & enters Such an Entry is called an Entry by 
Abatement a Disseisor is one who wronfully puts out another 
that is actually seised The Defts. Father in this Case after the 
Death of M. Fitzgerald entring before the Entry of his Heir 
was as I sayed an Abator This Entry of the Defts. fath'r was 
undoubtedly a tortious Act & the Heir of M. Fitzgerald might 



B190 VIRGINIA COLONIAL DECISIONS 

at any Time have enter'd upon him during his Life but neglecting 
to do that and the Defts. Father dying, seised whereby the 
Freehold & Inheritance was cast upon the Deft, by Act in Law 
i.e. by Descent this Descent takes away the Entry of the Heir 
And he is put to his Action which in this Case if the Lessor is 
Heir must be a Writ of Cosinage. This is the express Doctrine of 
Littleton s. 385. in the Case of a Disseisin And Coke in his Com- 
ment 237. b. says there is the like Law of an Abatem't ox In- 
trusion This was a Law introduced in Favour of Descents 
which are of high Estimation in Law & looked upon as the 
worthiest Means of coming to Lands In Respect whereof the 
Heir has divers Privileges and particularly this that he shall 
not be subject to be ousted by the Entry of anyone claiming 
Title but the Person so claiming is put to his Action The Reason 
given is because the Heir cannot by Intendment of Law suddenly 
know the true State of his Title It is an Institution of great 
Antiquity & so known & settled a Point I presume it will not 
bear any Sort of Contest 

There is a Statute that perhaps may be objected 32. H. 8. 33. 
which enacts that in Case ,of Disseisin the Entry shall not be 
taken away by a Descent to the Heir of the Disseisor unless such 
Disseisor had five Years quiet Possession before his Death And 
in this Case it does not appear the Defts. Father was so long in 
quiet Possession And it is true it does not appear so upon the 
Verdict tho' the Fact I am told is so Now I might with as 
much Reason argue that this Fact ought to be presumed as the 
Pit. does that it ought to be presumed he is Heir but I shall 
make Use of no such Argument My Answer to the Objection is 
that the Statute does not extend to an Abatement as I have 
shewn our Case to be It speaks only of Disseisins And because 
it is in some Sort penal as it takes away a Privilege the Heir had 
at the Common Law the Statute is restrained to the express 
Words and is not taken by Equity or extended to any Case not 
within the Words Cokes Authority is [178] express 1. Inst. 238. 
a. that the Statute does not extend to an Abator or Intruder. 
So it is sayed in PI. 47. a. Winbish ag't Talbois Neither does it 
extend to the Feoffee or Donee of a Disseisor 1. Inst. 401. a. 
Note 65. but is restrained to the single Case mentioned in the 
Statute of a Disseisor dying seised This Statute then cannot 
affect this Case the Defts. Father being an Abator as I have 
shewed At the Common Law such a descent as in this Case 



BARRAD ALL'S REPORTS B191 

takes away Entry And consequently the Pits. Lessor could not 
bring an Ejectment but must resort to his real Action if he has 
any Title I pray the Judgment may be affirmed 

Randolph for the Appellant (Pit.) sayed it must be intended 
the Pit. is Heir tho* not expressly found it appearing he is 
Cousin & the Deft, not setting up any Title as Heir nor shewing 
any other Person to be so which Point he sayed was adjudged 
in Cro. [sic.] . 

(Qucere) 

As to the Descent taking away the Entry of the Pit. he sayed 
no Advantage could be taken of that Matter upon this Verdict 
because all the Matter relating to it was not found That the 
Pit. might be under Age or other Disability & then the Descent 
would not take away his Entry He compared it to the Act of 
Limitation Of which he sayed no Man could take Advantage 
upon a Special Verdict unless the Verdict found that the Person 
to be bar'd was under no disability and that it was incumbent 
upon those who would take Advantage of the Act to shew that 
Matter for which he cited L Lutw. 804. Whally ag't Read & Hall 

To which last Matter it was answered that it was true the 
Descent would not take away the Pits. Entry if he was under 
DisabiHty but that not appearing ought not to be intended 
That it was a Rule a Disability should never be presumed See 
Plo. 176 The Parallel between a Descent that tolls Entry & 
the Act of Limitation was very just but the Law was quite other- 
wise than had been stated The Words of the Act of Limitation 
are ** No Entry shall be made within 20 Years &c.'' Therefore 
a Possession of 20 Years prima facie must be a Bar in Ejectment 
If the Pit. will avoid the Bar he must shew he is within the 
Saving of the Act If the Act be pleaded to a Formedon the 
Ten't only says the Pit. did not prosecute his Writ within 20 
Years after the Cause of Action accrued And this is certainly a 
good Bar unless the Pit. by Way of Replication shew something 
to avoid it The Pleading is the same in personal Actions By 
Parity of Reason the Law must be the same upon a Special 
Verdict [179] The Deft, is only to shew his Possession to the 
Jury And it is sufficient for him if they find that Certainly it is 
the Pits. Business to shew his Disability if there is any in the Case 
& not the Deft, to shew he was under no Disability which being 
a Negative might be difficult perhaps impossible for him to 
prove to the Satisfaction of a Jury The Law is the same in 



B192 VIRGINIA COLONIAL DECISIONS 

Case of a Fine with Proclamations which is certainly a good Bar 
unless something is shewn on the other Side to prevent it Plow 
176. Whally & Reed if rightly understood makes nothing ag*t 
this Argument The Court ^ayed no Advantage was to be taken 
of the Act of Limitation in Regard all the Matter touching it 
was not found From whence I collect that the Point of Limitation 
(which it appears was not the principal Point in Question) was 
not intended to be insisted on at the finding of the Verdict and 
so the Facts concerning it were not offered to the Jury The 
Judges knowing this declared no Advantage should be taken of 
it Because indeed it was a Sort of Trick 

Judgment for the Appellant (Pit.) April 1736. 

Note my Argument about the Descent seemed to be little 
understood 

It was new to the Court as it seemeth 

Rose Extor Bagg ag't Cooke & al. 

Debt on Bond ag't the Heir & Devisees of John Cooke The 
Defts plead 3 of them are under Age & pray the Parol may de- 
mur to which Plea the Pit. demurs And the Question is whether 
the Defts. ought to have their Age or not 

This Action lay not at the Common Law but is given by the 
Statutes 3 & 4. W. & M. 13. & the 6. Geo. 2. the first enforced 
here by Act 12. Geo. 1. 3. Before the making of which if a Man 
devised his Land by Will & died indebted his Cred'rs had no 
Remedy ag't the Land but now an Action is given by that 
Statute against the Heir & Devisee jointly 

I must observe the Defts in their Plea don't alledge any other 
Title to the Land than as Devisees or that the Deft, the Heir has 
any Land by Descent Therefore I could not counterplead as I 
must have done if they had sayed in their Plea the Lands de- 
scended but I have demurred Conceving the Law to be very 
clear that upon this Plea and as the Truth of this Case is the 
Defts. ought not to have their Age 

I must first beg Leave to premise that wherever a Man takes 
an Estate from his Ancestor or any other he must take it by 
Descent or by Purchase By Descent when the Law casts the 
Inheritance upon him without any Act of his Ancestor By 
Purchase when the Estate is [180] given him by Deed or Will 
or however otherwise he comes to it if it be not by Descent Lit. 



BARRADALL'S REPORTS B193 

s. 12. The Defts. here are not in by Descent None but the Heir 
could be so Therefore they must be in by Purchase The 
Truth is an Estate-tail is devised to the Heir by the Will And 
wherever the Heir has another Estate given him than he would 
have by the Law he is a Purchasor All this is so clear it cannot 
be disputed It is indeed admitted by the Plea the Defts. not 
alledging any other Title than under the Devise And conse- 
quently they must be in by Purchase 

Now as to the Matter of Age prier [sic] by which if it is granted 
the Suit is to be suspended till the full Age of the Defts. it is 
an ancient Privilege of the Common Law introduced in Favour 
of Infants upon a Presumption that they have not Understanding 
to know their Estate or to maintain or defend their Right And 
therefore the Law will not hazard a Trial by which they may be 
forever bar'd of their Inheritance till their full Age This 
Privilege is peculiar to the Law of England The Civil Law is 
otherwise Indeed the Guardian by that Law has a much greater 
Power than by our Law he can even alien a Minors Estate in 
some Cases. 3. Bui. 143. 1. Domat. 166. 167. 

At the Common Law in many real Actions where an Infant 
was Demandant and in all except a very few where he was 
Tenant he had his Age if he was in by Descent And the Court 
ex Officio ought to grant it & not suffer the Infant to plead if he 
would And if a Judgment was had ag't him by Default it was 
Error & is so still where he ought to have his Age 2. Danv. Error 
98. However Age is now taken away by Statute in sev'l Actions 
6. Rep. 4. b. Markats Case I agree that in Actions of Debt ag't 
the Heir the Deft, had his Age at the Common Law and so he 
has still because he can not be charged as Heir unless he is in by 
Descent but where he has some Land by purchase & some by 
Descent he shall answer as to that he has by Purchase & shall 
not have his Age 1. Danv. 263. 3. Now it may be sayed that as 
Devisees are made liable by the Statute in the same Manner that 
Heirs are at the Common Law They too ought to have their 
Age as the Heir would But I conceive not because the Devisees 
are in by Purchase & not by Descent And where the Heir is 
in by Purchase he has not his Age as I have sayed Indeed it 
is a clear & settled Point of Law & was never yet disputed that 
where an Infant is in by Purchase he shall not have his Age The 
old Books are full of this Doctrine but real Actions having been 
much disused fot above 100 years past we find little upon this 



B194 VIRGINIA COLONIAL DECISIONS 

Subject in the later Authorities RoUe has collected most of the 
Cases out of the year Books 3. H. 6. 46. is a Case in Point for 
there was a Devise to the Heir in tail And adjudged that as he 
was not in by [181] Descent but by the Will & so by Purchase 
he should not have his Age See 1. Danv. 263. 13. this Case 
abridged and read to pag. 1. And. 21. Waller ag't Lamb the Deft 
denied his Age because in [sic] as an Occupant & so quasi a 
Purchasor & not by Descent Carter 88. arguendo an Infant 
shall not have his Age where he is in by Purchase In Terms 
of the Law Age prier is defined to be where an Action is brought 
ag*t an Infant for Lands he has by Descent there he must shew 
this Matter to the Court & pray that the Plea may stay And in 
praying Age the Ten't or Deft, always alledges he is in by De- 
scent as appears by the Precedents old Bast. 26. Fitz. Age 15. 
58. 22. 105. From which the Inference would be strong if there 
were no express Authorities that unless the Deft, is in by Descent 
he shall not have his Age But there are express Authorities & 
therefore it will not admit of a Dispute Another strong Argu- 
ment may be drawn from the Silence of the Books & Reports 
since the making of the Stat 3 & 4. W. & M. upon this Subject 
We have not one Case and in a Course of 40 Years it is impossible 
but it must frequently have have happened that Infants Devisees 
have been sued upon this Statute Yet there is no Instance that 
ever they praied their Age which I think is a strong Proof that 
they are not intitled to it And because it is a clear & settled 
Point it has never been brought in Question 

As to the Reasons why the Law allows this Privilege in Case 
of Descents only & not where an Infant is in by Purchase I pre- 
sume they may be these When an Infant comes to an Estate 
by Descent the Law casts the Inheritance upon him & he cannot 
by Intendment suddenly know the true State of his Estate in 
Respect of that Want of Knowledge the Law adjudges in him 
But when he is in by Purchase which in Judgment of Law is 
his own Act the Presumption of his Incapacity to know his 
Estate must cease The Law too is favourable to Descents as 
the worthiest Means of coming to an Estate And therefore 
divers Privileges are annexed to it A Descent in many Cases 
will take away the Entry of him that has Right Many other 
Instances there are of these Privileges annexed to Descents 
But whatever the Reasons may be the Law is so clear and express 
I apprehend it cannot be receded from in a judicial Determination 



BARRADALL'S REPORTS B195 

Fr tot cur the Defts. shall not have their Age. Apr. 1736. 

Note the Court seemed to think if the Heir had any Lands 
by Descent he ought to have shewed it in his Plea And then 
as to that the Parol ought to demur but not for the whole 

The Devisees in that Case ought to answer & the Heir too 
as to the Land devised. See 1. Danv. 263. 3. So was Sir John 
Randolphs Opinion as I took it 

To the Argument above may be added that the Statute has 
no [182] Saving to Infants till they come of Age And there is 
no Reason to presume the Makers intended them that Privilege 

The Design & Policy of the Act was to give Creditors an ample 
Remedy to recover their Debts And consistently with that 
Design the Act must be construed the most extensively & 
beneficially for them The Statute does in some Sort devest 
the Lands out of the Devisees & vest it in the Cred*rs 

Infants are bound as well as others by Acts of Parl't unless 
there is a saving Clause Or else why are such saving Clauses 
added Here is no saving Clause in the Statute Ergo their Right 
is bound as well as others 

N B. When the Ten't in a real Action prays his Age he pleads 
by his Guardian that his Ancestor died seised & the Tenem'ts 
descended to him &c. Vid. my Rast. Ent. 26. Tit. Age 16. 
Which proves if he was in by Purchase he co'd not have his 
Age Vid. supra Post 213. 

B URGES a Hack 

David Fox seised in Fee of the Premises in Question devises 
the same to his Son William & Daughter Elizabeth ** To have & 
** to hold to my said son & dau'r their heirs & Assigns forever 
** to be equally divided between them at their respective ages 
** of 21. years or Day of Marriage of my said daughter which 
" shall first happen And in Case of the Mortahty of either of 
** them before they shal accomplish their respective Ages or 
** the Day of Marriage of my said Daughter or without issue 
** of their Bodies lawfully begotten Then I give the whole to 
*' the Survivor And in Case both die before they do accomplish 
" their respective Ages or without Issue of their or one of their 
** Bodies lawfully begotten Then I give & bequeath the sd. 
" Plantation to the right Heirs of me the sd. David Fox forever." 
The sd. W'm & Eliz after the Death of the Testator entered & 



B196 VIRGINIA COLONIAL DECISIONS 

were seised And Wm died before 21. or the Man*, of Eliz & 
without Issue Eliz married Peter Hack & had Issue by him 
Nicholas her only Child who is dead without Issue & by his 
Will devised the Premes to the Deft. The Lessor of the Pit. 
is the Testors Heir [183] at Law viz the Grandaughter of 
David his eldest Son 

The Question is Whether Eliz the surviving Devisee took an 
Estate-tail or a Fee-Simple contingent by the Will of the sd. 
David Fox If the first the Estate-tail is spent by the Death of 
Nicholas her Son without Issue And then the Lessor as the 
Testors Heir at Law has a good Title to the Reversion not by 
Force of the Limitation to the right Heirs for that is void in 
Point of Limitation but by Descent If Eliz took a Fee simple 
the Defts. have a good Title 

The Solution of this Point depends upon the Construction of 
the Will I shall therefore propose the Consideration of the follow- 
ing Particulars as necessary & conducive to point out & shew 
the Testators Meaning the Law & Rule for Construction of Wills 

1. What Estate the Devisees took by the first Part of the Devise 
'* To have & to hold to my said Son & Daughter their Heirs 
'* and Assigns forever &c." 2. How the Estate created by those 
Words is qualified by the succeeding Clause ** And in Case of 
the Mortality of either of them " &c. 3. What Estate the Sur- 
vivor took by those Words *' Then I give the whole to the Sur- 
vivor." 4. How that Estate is enlarged or qualified by what 
follows "And in Case both die &c. 

1. By the first Part of this Devise an absolute Estate in Fee 
would have vested in the Devisees without all Question But then 

2. this Estate is qualified by the subsequent Words In Case 
of the Mortality &c. And I humbly conceive make it an Estate 
tail with cross Rem'r This is what I shall endeavour to demon- 
strate as well from the Words of the Will as the plain & apparent 
Intention of the Testator 

I beg leave to premise that the Word Issue in a Will is equal 
to & of the same Import with Heirs of the Body This I pre- 
sume will not be denied being a known & settled Point Now a 
Devise to one & his Heirs And if he die without Heirs of his Body 
Rem*r over is clearly an Estate-tail for tho* the first Words to 
him & his Heirs carry a Fee simple the subsequent Clause if he 
die without Heirs of his Body shew what Heirs were intended 
in the first Part of the Devise viz Heirs of the Body The Law 



BARRADALL'S REPORTS B197 

is the same if the Limitation be upon a dying without Issue be- 
cause as I sayed the Word Issue in a Will is of the same Force 
with Heirs of the Body The Authorities in Law as to this Point 
are very plentiful 1. Ro. A. 835. 1. 836. 7. 9. 839. 3. 4. Cro. Jac. 
448. 695. Ro. 29. 1. Vem. 227. 229. 3. Mod. 106. 9. Rep. 128. 
Skin. 17. Raym. 425. Skin. 559. FitzG. 12. 25. 

This is the Case of the first Part of our Devise which is to W'm 
& Eliz. & their Heirs And in Case of the Mortality of either of 
them before 21. &c. Or without Issue the whole to the Survivor. 
The Limitation over upon a dying without Issue makes an 
Estate [184] tail according to the Cases cited tho' by the first 
Words a Fee Simple passed for the Word Issue in the 2 Part of 
the Clause shews what Heirs were intended in the 1. Part viz. 
Heirs of the body 

The Word Heirs in a Will without any Thing more is often 
taken to be Heirs of the Body where the Testators Intention is 
apparently so. A. having 2 Sons devises his Land to the youngest 
& his Heirs And if he die without Heirs then to the eldest 
This was adjudged an Estate tail in the youngest for Heirs here 
must necessarily be intended Heirs of the Body Otherwise the 
Rem'r over would be fruitless because the elder Brother was 
Heir general & would have taken as such without the RemV 
1. Ro. A. 836. 5. 6. 2. Cro. 415. Webb a Herring 1. Sal. 233. 
Indeed it is a Kind of established Rule Where Lands are de- 
vised to one & his Heirs And if he dies without Heirs Rem*r 
over to another who is Heir gen*l to the 1. Devisee that it is an 
Estate tail in the 1. Devisee for in such Case Heirs must be in- 
tended Heirs of the Body for the Reasons just now mentioned 
3. Lev. 70. Br. 84. 2. Cro. 448. 1. Lut. 810. 813. 

Now this is exactly our Case the Testator had only two Children 
W'm & Eliz. The Devisees by one Venter so each was Heir 
general to the other And the Rem*r being limited to the Survivor 

According to the Rule in the Cases just cited Heirs in the first 
Part of the Devise must be intended Heirs of the Body without 
the Assistance of the succeeding Clause But when in that 
the Rem*r is limited upon a dying without Issue It seems 
to put the Matter beyond Dispute that Heirs in the first Part 
was intended Heirs of the Body Consequently that the Devisees 
took an Estate tail & nothing more Vid. Mo. 637. 

There is a Difference and I suppose it will be insisted on on 
the other Side where a Rem*r is limited upon a dying without 



B198 VIRGINIA COLONIAL DECISIONS 

Issue generally & where it is to depend upon some contingent 
Circumstance as dying without Issue in the Life of another or 
within such Age In which Cases no Estate tail is created but 
only a Fee Simple contingent as are the Cases of Pell & Brown 
Cro. Ja. 590. 1. Ro. A.835 2. S.C. &4. Hard. 148. Hall & Deering. 
1. Sid. 148. CoUenson ag't Wright And this Difference I admit 
but conceive it is not our Case for here the dying without Issue 
stands by itself & is not coupled with the Contingencies of 
dying within Age or before the Dau'rs Marriage but separate 
from them by the disjunctive Or If it had been In Case either 
of them die within Age and without Issue There perhaps it 
would be within the Distinction but here the Sentences are dis- 
joined & must be [185] taken distributively and then the dying 
without Issue has no Relation to or Dependance upon those 
Contingencies This cannot be thought meerly a Cavil about 
Words but the Particles make really a great Difference in the 
Sense for Instance if I promise to build a House & give 500;^ 
I must do both but if the promise is to build a House or pay 
500;^ The doing of either will discharge the Promise And this 
Distinction I insist on in the Case at Bar is not of my own In- 
vention but we find it taken in the Books 

Soulle & Gerrard Cro. El. 525. is a Case in Point which is a 
Devise to one & his Heirs And if he die within Age or without 
Issue Rem'r over the Devisee had Issue & died within Age the 
Question is between the RemV man & the Issue & adjudged 
for the Issue And it is there sayed to be an Estate tail And so 
it must be in Consequence of that Judgment 

This Case is exactly ours And I am much mistaken if there 
is any Authority to contradict it or any Book where the Case 
is denied to be Law I know very well many Cases may be 
shewn where the Limitation over is upon a dying within Age & 
without Issue that it has been adjudged a Fee Simp e con- 
tingent but that is not the Case here And upon the Distinction 
I have taken I conceive all the Books may be reconciled. 

There is a Case in Poll. 645. Price ag't Hunt that I suppose 
will be much relied on on the other Side The Case is a devise 
to a Son & his Heirs And if he die before he attain to 21. or have 
Issue of his Body living Rem'r over to Francis Cowley The 
Son lived to 28. & then died without Issue The Question is 
between Cowley the Rem'r man & the Heir of the Son Not 
whether it was an Estate tail in the Son as indeed it was not 



BARRADALL'S REPORTS B199 

but whether the Rem'r could take Effect One of the Con- 
tingencies upon which it was limitted having happened viz the 
Sons attaining 21 And adjudged it should not 

Now the Difference between this Case & ours, is very obvious 
the Rem'r there is to commence upon the Sons dying without 
Issue living which is certainly a Contingency & differs very 
much from a Limitation upon a d)ring without Issue generally 
as our Case is I have already taken this Difference & allowed 
that where the dying without Issue is attended or coupled with 
any contingent Circumstance there it makes no Estate tail 
but is a Fee simple contingent But in our Case the dying without 
Issue stands singly & is disjoined from the Contingencies of dying 
before Age or Marriage 

This Case then of Price & Hunt proves no more than this 
that where a Rem'r is limitted to Commence upon 2 Contingencies 
in the Disjunctive If either of them happen the Rem'r cannot 
take Effect w*ch I shall readily grant but conceive it is nothing 
to this Purpose 

[186] Besides to construe this a contingent Fee will be to 
make the Rem'r to the Survivor vain & idle for then in that Case 
the Use of such a Rem'r must be to prevent the Estate from 
going to the Heir of the 1. Devisee in Case he sho'd die before 21. 
or without Issue but it can never be supposed the Testor had any 
such Intent in this Case because he has limitted the Rem'r to 
that very Person who was & would have been Heir to the Devisee 
in Case he died before 21 or without Issue And so if this is con- 
strued a contingent Fee the Rem'r must be useless Certainly 
then this was not his Intent but his Intention in limitting this 
Rem'r was to exclude his own Heir from taking upon the Deter- 
mination of the Estate given to the 1. Devisee as he would have 
done upon the Death of the Devisee without Issue in Case this 
Rem'r had not been The Inference from this is clear he did not 
intend a contingent Fee but an Estate tail 1 . Sal. 233. 1 . Ro. A. 836. 

It is a Rule in the Construction of Wills that such Construction 
should be made as will make the whole Will consistent But to 
construe this a contingent Fee is inconsistent with the Rem'r 
over as this Case is Therefore it must be an Estate tail 

The Construction I contend for is not only supported by the 
Words of the Will but by the clear Intention of the Testator 
as I conceive He certainly intended the Rem'r should take 
Effect whenever there was a Failure of Issue & not only upon 






B200 VIRGINIA COLONIAL DECISIONS 

the Contingency of dying without Issue within Age &c. as I 
hope is in some Measure evident from what has been sayed but 
will appear still more clearly if we consider the latter Part of the 
Devise Upon which the present Question properly depends 
The Words are '* Then I give the whole to the Survivor And in 
" Case both die before they do accomplish their respective 
** Ages or without Issue of their or one of their Bodies lawfully 
** begotten Then I give & bequeath the said Plantation to the 
" right Heirs of me the sd. David Fox " 

The first Words " Then I give the whole to the Survivor " 
carry no Estate of Inheritance but the Surviv'r by Force of those 
Words without more would have only an Estate for Life in a 
Moiety 1. Ro. A. 835. 836. We must of Necessity have Recourse 
to the latter Part of the Clause to make it a greater Estate And 
by -that indeed it is clear he intended an Estate of Inheritance 
and what kind of Inheritance the Word Issue shews viz an 
Estate tail There is no other Word in the whole Clause to carry 
an Estate of Inheritance but that And therefore it must either 
be an Estate for Life or an Estate tail But if it should be taken 
as [187] an Estate for Life And the Words " In Case both die 
without Issue &c." are taken as Words of Determination i.e. 
to shew when the Estate given by the first Words should deter- 
mine this Absurdity will follow that the Survivor had an Estate 
for Life determinable upon his dying without Issue And it is 
not to be supposed the Testator intended such an Absurdity 
In Order therefore to satisfie the Words of the Will & make the 
Testators Meaning consistent with Reason & good Sense the 
Will must be construed as I would have it viz. that the Survivor 
was to have an Estate tail in the whole Which I hope appears 
clearly to be the Testators Intention If the Court is of another 
Opinion Then I insist the Survivor had only an Estate for Life 
in one Moiety And we as Heir at Law are well intitled to that 
Moiety Q. & vide Skin. 339. 

I will beg Leave to add one Case in Law which I believe will 
not be denied If Lands are devised to a Man without saying 
more And in Case he die without Issue Rem'r over this is clearly 
an Estate tail I must submit whether that be not the Case here 
The Survivor is to have the whole And in Case he die within 
Age or without Issue Rem'r over 

To conclude We are Heir at Law And if there is any Doubt 
about the Construction of this Will such Construction should 



BARRADALL'S REPORTS B201 

be made as is most in our Favour The Law is favourable to the 
Heir upon many Accounts Before the Stat. 31. H. 8. the An- 
cestor could not devise away his Land from him And since that 
Statute Devises that tend to deprive him of his Inheritance are 
always construed as much in his Favour as may be It is indeed 
a known & estabUshed Maxim that in doubtful Constructions the 
Heir is to be favoured Wherefore if the Testors Intention was not 
so evident as I hope it appears Judgment ought to be for the Pit. 
Case of Barber & Timson in this Court ab't 20 Years Where 
the Will was in the same Words & adjudged an Estate tail 

Needier for the Deft, insisted much on the Word Assigns in 
the first Part of the Devise which he sayed shewed the Testor 
intended a Fee 2 Sal. 622. That if it should be construed an 
Estate tail that Estate is determinable by the Death of the 
Devisee before 21. And then it will follow that if the Devisee had 
died before 21. & left Issue that Issue must be disinherited which 
can never be thought the Testors Meaning Therefore (Or) here 
must be taken for (and) & then it is clearly a contingent Fee 
He cited 1. Ro. Abr. 835. 4. Henbtuy & Cockerell. Hard. 148. 
Hall & Deering 1. Sid. 148. CoUenson & Wright but principally 
reUed on Price & Hunt Poll. 645. Vid. 2. Vern. 86. 151. Skinn. 
144. Pell & Brown Cro. Ja. 590. 
[188] Apr. 1736. 

Judgment for the Deft (viz. that it was a contingent Fee) by 
the Opinion of 

Tayloe Lightfoot 

Randolph Carter 

Custis Digges & 

Grymes Byrd con. 

Robinson 

Blair & 

The Governor 

Needier Cont 15 

That this is rightly adjudged See 2 Strange Barker v Siu^eties 

Anderson qui-tam ag't Winston 

Debt on the Act 3 & 4. Geo. 2. 12. ag't taking excessive Usury 
The Pit. declares that the Deft, after the 29. Sept. 1730. viz 
ulto July 1731 at &c. upon a certain Contract between the Deft. 
& one John White made did receive of the said White by Way 
of corrupt Bargain & Loan 3;^ Current for Gain Use Interest & 



B202 VIRGINIA COLONIAL DECISIONS 

giving Day of Paiment of 20;^ Curr't by the Deft, to the s*d 
White lent over & besides the lawful Interest of 6 per Cent ag't 
the Form of the Act of Assembly &c. And in another Action 
declares in like Manner for taking 36. s. for Interest & giving 
Day of Paiment of 12;^. In which Action the Jury find specially 

That White some time in June 1730 borrowed of the Deft. 
20jf Curr*t And in July 12jf more And gave separate Bonds 
for Paim't of 20jf . & 12j^. Sterl. at the End of a Year In April 
1732. White & the Deft, made a Settlement & for the first year 
White was charged for principal Money on both Bonds S6£. 16s. 
Curr't & in Oct'r fall White paid the sd. 36.16.— & Interest at 6. 
per Cent from the respective Days of Paim't in the Bonds & the 
Deft, received it And if the Court adjudge the Deft, guilty they 
find him guilty of taking the said 4.16. — above six per Cent upon 
the sd. Bonds 

And I take it upon the Matter found the Deft, is not guilty of 
any Breach of the said Act Before the making of which there 
was no Law here that settled the Rate of Interest nor were Men 
subject to any Penalty tho' they took 20 or even [189] 50 per 
Cent. Now this Act provides **That no Person after the 29 — 

* Sept. 1730 upon any Contract to be made after that Time for 

* Loan of any Monies Wares &c. shall take above 6 p cent per 

* Ann. for Forbearance And all Bonds &c. made after that 

* Time where More is reserved shall be void And any Person 

* who after the Time aforesaid upon any Contract to be made 

* after the said 29. Sept. shall receive above 6. p Cent, shall 

* forfeit double the Value of the Mony &c. lent &c. 

It is plain this Act was intended to refer only to Contracts 
made after the 29. Sept. 1730. The Penning of it is very strong 
to exclude all Contracts made before After the 29. Sept. & 
after the Time aforesaid is repeated no less than 4 Times Indeed 
it would be very strange to subject Men to such severe Penalties 
when they transgressed no Law then in being I suppose it 
won't be pretended that any Bond taken before 29. Sept. 1730. 
where more than 6. p. Cent :s reserved is void Then neither 
can the receiving the Money upon such Bond subject the Obligee 
to the Forfeiture of the double Value for it is receiving upon a 
Contract made after 29. Sept. [sic] is made penal by this act 

This I take to be very clear upon the Words of the Act as well 
as evident from the Reason & Justice of the Thing And there- 
fore it may be needless to mention the Authorities upon this 



BARRADALUS REPORTS B203 

head But as there are Cases directly in Point adjudged upon 
the Statutes of Usury in England I will beg Leave to mention 
2 or 3 Hawkins 1. P. C. 244. is express that a Contract made 
before the Act 12. Ann. which reduces Interest to 5 p Cent is 
not within that Statute But that it is lawful to receive 6 p. 
Cent (the legal Interest before) upon such Contract See Dal. 
13. Ray. 195. 

But we need go no further than to the last Act ag't Usury 8. 
G. 2. 5. to prove such Contracts are not within the first Act 
upon which this Action is founded The Title of it is To make 
void certain Contracts for paying excessive Usury It recites 
that there were sev'l Contracts subsisting made before passing 
of the 1. Act or between the Passing & Commencement And tho' 
there was no Law in being to punish such unreasonable Lenders 
Yet such Contracts which were always unrighteous ought not 
to be binding It is therefore Enacted that all Bonds &c. made 
before 29. Sept. 1730. where any Interest above 6 p Cent is agreed 
to be paid shall be void as to all Interest above 6 p Cent. 

Here is the Judgment of the Legislattire that Contracts made 
before the 1. Act or between the Passing & Commencement are 
not punishable by any Law And all the Punishment inflicted 
[190] by this Act is only to make such Contracts as were then sub- 
sisting void as to all Interest above 6. p Cent but there is no 
Penalty for receiving the Money upon such Contracts If there 
was the Deft, would not be within it the Matter for which this 
Prosecution is set on Foot being transacted long before the 
making of this Act & was not a Contract then subsisting 

If then the Deft, did not take above 6. per Cent upon a Con- 
tract made after the 29. Sept. 1730 I conceive he is not guilty 
of the Breach of any Law And that there is nothing found in 
this Verdict to prove he did is very clear In June & July 1730 
he let White have 20;^. &12;^.Curr't & took his Bond for Pai- 
ment of the like Sum Sterling at the End of a Year This I 
hope was a Contract before the 29. Sept. 1730. It was lawful 
then for the Deft, to receive the Money due upon these Bonds 
I mean without being subject to any Penalty In April 1732. 
White & the Deft, made a Settlement At this Time the Deft, 
might lawfully receive the Sterling Money reserved on the 
Bonds as I sayed and he might also lawfully receive 6 per Cent 
Interest upon this Mony from the Time it ought to have been paid 
And this is all he did do The Sterling Money is paid in Cash at 



B204 VIRGINIA COLOxXIAL DECISIONS 

15 p Cent the lowest Exch'a w'ch makes 36. 16. the Mony 
reced upon this Settlem't tog'r with Interest upon it from the 
Time it was paiable by the Bonds at 6 per cent. 

If there is any Pretence of a Contract after the 29. Sept. 1730. 
in all this it must be when this Settlement was made but upon 
that he took no more than 6 per Cent And however unreason- 
able it might be to take 15 per cent upon the first Contract which 
was before the Law it is plain he has not taken more than is 
allowed by the Law on any Contract since And therefore he is 
not guilty of any Breach of the Act of Assembly Unless it is 
construed that the receiving Mony after the 29. Sept. 1730. 
upon a Contrp.ct before that Time where more than 6. per cent 
is reserved is within the Act But I humbly conceive such a 
Construction can never prevail Being ag't the express Words as 
well as the Intention of the Act which as I have observed is 
penned in the strongest Terms to exclude all Contracts before 
It is against the Sense of the Legislature here since the making 
of it as I have shewed from the 2 Act ag't Ustiry Against the 
Rule of Construction in such Cases as appears from the Cases I 
have read adjudged upon this Point in England Against the 
private Sentiment as we may suppose of Sir J. R. who we all 
know had the Penning of the 2. Act & was very active in pro- 
moting it [191] And also ag't natural Justice to punish any Man 
for an Action innocent in itself with respect to human Laws 
by a Law made ex post facto Which kind of Laws have been 
always condemned as unjust And therefore to make such a 
Construction ol a Law against the express Words of it I appre- 
hend can never be thought right 

And I hope the Consequence of such a Determination will be 
considered It must affect a great Number of People who 
thought they might lawfully take more than 6 per Cent before 
the Act & perhaps in Conscience might do so For with Defer- 
ence to the learned Gentlemans Opinion I think some Men 
under some Circumstances may as lawfully take 10 per Cent as 
others may 5 I mean foro conscienticB & abstracted from positive 
Laws And this most of the Writers of the Law of Nature agree 
I own that Usury seems to have been always condemned by the 
ancient Laws of England tho* an Usurer was only punishable 
by Ecclesiastical Censures in his Life time But if it was found 
by 12 Men after his Death that he died an Usurer he was com- 
pared to a Thief His Goods were forfeited to the ICing & his 



BARRADALL'S REPORTS B205 

Lands escheated 3. Inst. 151. And as Usury was an Offence 
punishable by the Law of the Church We frequently find it 
sayed to be ag't the Law of God Not that it is prohibited by the 
Gospel tho* it might be so by the Canons & Decrees of the Pope 
which last in the Times of Superstition the artful Priest taught 
the World to believe were as much the Law of God as the Gospel 
itself But now Mankind are more enlightened and Protestants 
at least allow nothing to be ag't the Law of God but what is 
prohibited in Holy Writ 1. Hawk. 245. 

As to the Prohibition in the Jewish Law that is not at all 
obligatory upon Christians The Law of Moses was promulged 
to a particular People and only binding upon them to whom 
it w£is promulged It was not intended nor in [sic] any where 
sayed to be an universal Law to Mankind And that it is not 
binding upon Xtians that is the ritual & political Part of it 
We have the Authority of the Church viz the 7th of the 39. 
Articles It is true the moral Part is there sayed to be binding 
And so it would be if it was not in the Law of Moses. The 
moral Law being entirely & universally obligatory upon Mankind 

But in Truth this Prohibition is not a general but a partial 
Prohibition respecting the Jewish Nation only for they are 
permitted to take Usury of a Stranger tho' not of one another 
which is a plain Proof that Usury is not ag't the moral Law for 
if it had [sic] the Jews who were the sanctified & chosen People 
of God would never have been permitted the Practise of it at all. 
Indeed it is impious to suppose that God would tolerate the 
practise of a Thing simply [192] & naturally unlawful This 
Prohibition then to the Jews was meerly political 1. To obviate 
the avaritious Disposition observable in that People and to 
prevent it from running out into Oppression of one another 
And 2. thereby to cement them into a closer Bond of Amity to 
each other 3. To secure & strengthen that Democratical Gov- 
ernment Moses intended to institute by preserving some kind 
of Equality in Property Upon which Principles the Laws of 
Jubilee & ag't alienating Land for ever were also instituted It 
must however be owned the primitive Xtians took no Usury 
probably out of a Superstit ous Reverence to the Mosaic Law 
which might be the first Occasion of its being condemned by 
the Church tho' afterwards abused by the Clergy who made a 
Market of that as well as other Offences by the Practise of 
commuting for Penance. 



B206 VIRGINIA COLONIAL DECISIONS 

Whoever has a Mind to be further convinced that Usury is 
not ag't natural Justice let him read Puffendorfs Law of Nature 
B. 5. c. 7. s. 8. ad finem & Barbeyrack's Notes thereupon where 
he may see it proved to a Demonstration that it is neither ag't 
the Law of God nor of Nature but even necessary in the present 
State of human Affairs & of great Use in all trading Coimtries 

Grotius who seems to candemn the Name allows the Thing 
He says L. 2. c. 12. there are some Things that look like Usury 
but are Pacts of another Nature as the Amends that ought to 
be made a Cred'r for the Loss he is at in being out of his Money 
&c. which is allowing the very Thing contended for viz If I 
lend Mony or Mony is owing to me I ought to have something 
for the Use of my Mony & the Loss I sustain for Want of it 
This is the very principle upon which Usury is proved to be 
consistent with natural Justice It is no matter whether you 
call it Usury or Interest Amends or Damages the Thing is the 
same And certainly in the present State of human Affairs where 
many Persons Estates consist all in Money And they cannot say 
it would be inconvenient that they should employ it in Trade & 
Husbandry No just Reason can be given why they should not 
make a Profit of their Estate as well as those who have Lands 
& rent them out Especially when their Money is as useful to the 
Commonwealth for no considerable Trade could be carried on 
without it 

Usury was allowed by the Roman Law Puff. 276. Note 4. & is 
practised in almost all civilized Nations at least in all Christen- 
dom It is indeed prohibited by the Alcoran: but even [193] the 
Professors of that Religion evade it by lending Money to have a 
certain Share as a 4 or 5 Part of the Gain made by it which is the 
same Thing for in Equity there is no Difference whether I agree 
for a certain Gain before hand or run the Risque of an uncertain 
one Puff. pag. 276. 

As to the Quantum that may be taken for Usury according 
to natural Justice Grotius ad Lucam 6. 35. proportions it not 
by the Gain of the Borrower but the Loss that accrues to the 
Lender & that so much ought to be paid by the Borrower as the 
Lender in the Way of his Calling usually makes of his Money 
Allowance being made for Hazard But because it would be 
difficuit to prove & adjust this exactly And such a Latitude 
would give an Opportunity to ill Men to insist upon too great 
an Interest The Policy of most Nations has reduced it to a 



BARRADALL'S REPORTS B207 

certain Standard which is more or less according to the different 
Circumstances of each State In trading Countries as in Hol- 
land it is very low 2% or 3 per cent In Venice where there is 
no Trade it is 8 per Cent And Interest is high in all the Inland 
Parts of Germany The Rate of Interest in England has been 
reduced from Time to Time as Mony has grown more plenty & 
its Trade increased By the H. 8. It is prohibited to take more 
than 10 per Cent under a Penalty This is the first Law that 
made Usury cognizable in the Kings Court Thus it continued 
til Ja. 1. when Interest was reduced to 8. After the Restora- 
tion it was reduced to 6. & by the Ann to 5. In most of the 
English Plantations I am told it is now at ten 12. was per- 
mitted by the Roman Law till the Time of Justinian who re- 
duced it to 8. Puff. 276. Note 4. Thus it varies in different 
Countries & in the same Country according to the different 
Circumstances of it 

To conclude where the Rate of Interest is settled by Law in 
any Country No good Man ought to take more tho' it was not 
prohibited under a Penalty But where there is no Law the 
Rule laid down by Grotius seems very equitable viz in Propor- 
tion to the Loss that accrues to the Lender And therefore a 
trading Person who usually makes a great Profit of his Money 
may with good Conscience require more than one whose Money 
lies dead upon his Hands From whence I would observe that 
the taking more than 6 per cent before there was any Law by 
some Men under some Circumstances was not so very criminal & 
unrighteous as is pretended Yet I should be sorry to be 
thought an Advocate for excessive Usury as it is certainly intro- 
ductory of great Oppression & I am heartily glad it is settled by 
Law All that I contend for is that a Man may not be punished 
for any Contract of this Sort before there was any Law to make 
it penal And I hope Judgment will be given for the Deft. 

This Case was agreed by the Parties & so no Judgm't given 



[194] APRIL COURT MDCCXXXIX 

Richardson ag't Mountjoy App'l Richmond 

In Trespass on a Special Verdict the Case is 
Joseph Belfield & Mary his Wife seised in Fee in Right of 
Mary by Deed Oct. 16. 1715. give & grant to Tho's Mountjoy 



B208 VIRGINIA COLONIAL DECISIONS 

oldest Son & Heir of Mary 1600 a of Land more or less the 
remaining Part of a Tract of 2500 A. To hold the Plantation & 
1000 A. adjoining in Fee tail & the remaining 600 Acres be the 
same more or less in Fee 

The said Mary Belfield & Tho's Moimtjoy by Lease & Rel. 
2 & 3. Apr. 1717. in Cons, of 83;^. sell & convey to W*m Wood- 
bridge 600 A. of Land Part of the sd. 1600 by certain Metes & 
Bounds described in the Deeds with gen'l Warranty ag't them & 
their Heirs 

Mary at the Time of making these Deeds was a feme covert 
but lived separate from her Husband And upon her Marriage 
there were Articles that she should have Power to alien & dis- 
pose of her Lands without her Husband which he permitted her 
to do Upon a Survey it appears there are but 1000 Acres to 
satisfie the whole 1600 including that conveied to Woodbridge 

Mary Belfield died before Tho's Mountjoy who is also dead 
without Issue The Pit. is Heir at Law to both W'm Wood- 
b,ridge enter'd into the 600 Acres & died seised & after his Death 
John Woodbridge his Son & Heir enter'd and the Deft, by his 
Command dug the Soil which is the Trespass supposed And 
if John Woodbridge has Title to the 600 A conveyed to his Father 
Then pro quer. If not pro Def. The County Court were of 
Opinion that Woodbridge had not a good Title & gave Judg- 
ment for the Pit. But I conceive that Judgment is erroneous 

I must observe the Pits. Title in this Case is as Heir to Mary 
the Donor the Estate tail being determined by the Death of 
Tho's Mountjoy the Donee without Issue And so he claims 
1000 Acres in his Reversion The Defts. Title is under the 
Purchase from Mary Belfield to Tho's Mountjoy 

In this Case there are 4 Points to be considered 1. Whether 
the Deed of a feme covert made alone & without her Husband 
but by his Consent & in Ptirsuance of Articles before Marriage 
will bind the feme & her Heirs And if so Then 2. Whether a 
Reversion in Fee expectant upon the Determination of an 
Estate tail may be conveied & will pass by Deeds of Lease & 
Release 3. Admitting no Estate passed out of Mary Belfield by 
the Lease & Release from her & Tho's Mountjoy Whether those 
Deeds may not at least operate & be taken as an Explanation 
of the first Grant from Belfield & his Wife to shew which was 
[195] the Land intended to pass in Fee 4. Admitting the 600 
Acres conveied to Woodbridge to be Part of the Land intailed 



BARRADALL*S REPORTS B209 

Whether the Warranty of Thomas the Ten't in Tail descending 
upon the Pit. who is Heir to the Donor will not bar him 

1. The Deed of a feme covert simply taken without all 
Doubt is void. Bro. Faits enrolled 14. Cro. El. 700. Hob. 225. 
But the Question is How far the Husbands License & Consent 
will make it valid for the Rule is Modus et conventio Vincunt 
legem Et pacto aliquid licitum est quod sine pacto nan admit- 
titur 

Here it will be proper to consider the Reason why the Deed of 
a feme covert is void It is because the Law supposes she has 
no Will of her own but is sub potestate viri Et cum in vita con- 
tradicere non potest Hob. 225. So that it is a Law introduced 
in Favour of Women to secure their Inheritance that they may 
not be compelled by their Husbands to alien them ag't their Will 

Let us now consider how far this Reason can influence the 
present Case. Here is an Agreem't between Husband & Wife 
upon Marriage whereby a Power is given the Wife for her Benefit 
to alien the Land without the Husband which Power she executes 
And to obviate the Objection that she did this thro' her Hus- 
bands Influence it appears they lived separate & she was even 
privately examined Thus the Reason why the Law adjudges 
the Deeds of Femes covert void does not subsist in the present 
Case Et cessante ratione legis cessat ipsa lex 

In this Case the Husband could not controul the Wife in 
making this Deed A Court of Equity would have compelled 
him to perform the Articles if he had attempted it And there 
do not want Instances in the Law where the Act & Deed of a 
feme covert alone without her Husband is good & shall bind 
her & her Heirs If a Fine be levied by her without her Husband 
this shall bind if the Husband avoid it not during the Coverture 
7. Rep. 8. Hob. 221. Husband & Wife levy a Fine of the Wifes 
Land to Uses with a Proviso that they at any Time during their 
Lives may make Leases the Wife during the Coverture made a 
Lease & adjudged good by Virtue of the Proviso Godb. 327. It 
is a known Rule that a feme covert cannot make a Will Yet if 
the Husband upon the Marriage covenants that she may make 
a Will Any Disposition in Pursuance of that Power will be good 
tho' perhaps not strictly as a Will 

The Inference to be drawn from these Cases is clearly this 
that tho' the Act or Deed of a feme covert simply taken may 
be void Yet the Consent of the Husband either tacit or express 



B210 VIRGINIA COLONIAL DECISIONS 

will make it good & binding upon her & her Heirs And there 
is both these concurring in the present Case the express Consent 
by the [196] Articles the tacit by not avoiding or endeavouring 
to avoid the Deeds during the Coverture Therefore I hope they 
are binding upon Mary Belfield & her Heirs And if so Then the 
next Thing to be enquired is 

2. Whether a Reversion expectant &c. can be conveied & will 
pass by Deeds of Lease & Release And that such Reversion may 
be conveied I beheve no Man will dispute 2. Rep. 51. a. Wiscots 
Case Yel. 149. Sal. 233. Badger & Loyd. 6. Rep. 155. Neither 
can there be any Question but it will pass by Lease & Rel. 2. 
Lill. Abr. 483. 

Before the Statute 27. H. 8. of Uses a Reversion would not 
pass by Deed without Attornment but Attornment is not neces- 
sary upon any Conveiance within that Statute and a Reversion 
may well pass without it for the Statute transfers the Possession 
to the Use 1. Inst. 309. b. Now a Lease & Rel. being a Convei- 
ance within the Statute 2. Mod. 250. All the Estate of the 
Grantors whether in Possession or Reversion was transferred & 
did well pass to the Grantees The Title the Pit. sets up is by 
Descent from Mary Belfield one of the Grantors which Descent 
is broke & prevented by these Deeds And is a Bar to any such 
Claim. But if these Deeds cannot operate so as to convey any 
Estate from Mary Belfield Yet 

3. It may be taken as an Explanation of the first Grant from 

■ 

Belfield & his Wife to Mount joy to shew which were the Lands 
intended to pass in Fee by the said first Grant The Premises in 
that 1. Grant have no certain Description or Boundaries but in 
general Terms 1600 Acres more or less the remaining Part of 
such a Pat. It was supposed there was then so much of that Pat. 
unsold and upon that Supposition 1000 A. are limitted in Tail 
& 600 in Fee but no certain Boundaries to either Upon this 
Grant it was reasonable to conclude the Grantee had 600 A. 
in Fee So Woodbridge thought & in Order to be as secure 
as possible & to take away all Objection that the Land he pur- 
chsised was Part of the 1000 a. intailed he gets the 600 a. surveied 
' marked and bounded & procures Mary Belfield the 1. Grantee 
to join in the Conveiance with Mount joy the Grantee which he 
thought would be a sufficient Declaration which was the Land 
intended to pass in Fee by the 1. Grant 

If these Deeds cannot operate so as to pass an Estate out of 



BARRADALL'S REPORTS B211 

Mary Belfield Unless they take Effect in this Manner as an 
Explanation of the first they can have no Operation at all as to 
Mary The Consequence of which will be that an honest Purchas- 
or who acted with as much Caution as a Man well [197] could 
must lose his Land & be without any Remedy for his Money 
for Mount joy is dead insolvent But I hope the Court rather 
than suffer such a Piece of Hardship & Injustice will support 
the Deed & make it effectual one Way or the other Judges will & 
ought to do every Thing to assist honest Purchasors And rather 
than a Deed shall have no Operation are even subtile in inventing 
Reasons to support them Ut res Magis valeat qtcam pereat And 
if the Court is of Opinion that the 600 A.conveied to Woodbridge 
were the Premises intended to pass in Fee by the 1. Grant Then 
we have a good Title under Tho's Mountjoy But if it is taken 
to be Part of the Land intailed Then I say 

4. That the Warranty of Thomas the Ten't in Tail descending 
upon the Pit. who is Heir to Mary the Donor will bar the Pit. 
of his Reversion This is a Point well known & settled There 
are 3. kinds of Warranties, lineal, collateral & that commences 
by Disseisin Lit. s. 697. A Warranty is called lineal not in Re- 
spect to the Warranty but the Title of the Land & is defined by 
Lit. s. 703. to be where the Land would have descended from the 
Person making the Warranty if that Warranty had not inter- 
vened And so ex opposito a collateral Warranty is where the 
Land could not descend from the Person making the Warranty 
nor the Heir claiming the Land by any Possibility convey his 
Title from him As to Warranties that commence by Disseisin 
we have nothing to do in this Dispute 

At the Common Law all Warranties except such as commenced 
by Disseisin bound the Heirs of those who made them & were 
a Bar to such Heirs to claim any Thing in the Tenements to 
which the Warranties were annexed Lit. s. 697. And so I appre- 
hend they do still unless they are restrained by some Stat. 

The L Stat, that restrains Warranties is Glouc. c. 3. which 
enacts that the Alienation of Ten't by the Ctirtesie with Warranty 
shall be no Bar to the Issue Unless Assets in Fee simple descend 
to the Issue from the Father The next is Weston. 2. 1. which 
restrains the Warranty of Ten't in tail from barring the Issue 
in tail And it must be this Statute if any that restrains the War- 
ranty from barring in this Case But that I conceive it does not 
for it does not extend to restrain the Warranty from barring 



B2I2 VIRGINIA COLONIAL DECISIONS 

th^«^ :n Reversfci: ryr Rem^ncer and the Ph. claims ii: Reversion 
The Reason given for this EKslincticn is because the Warranty 
is lineal to the Issue, but to these in Rem'r or Reversi-Dii collat- 
eral And there is no Statute in Force here that restrains 
cci lateral Warranties tho' it had been often attempted in Sir 
E- Coke's Time as he says 1. Inst. 373. And since his Time a 
Statute has been [19S] made 4 & 5 Ann. 16. that restrains some 
collateral Warranties but it is not in Force here or if it was does 
not reach this Case as I shall shew presently. Sir E. Cokes 
Opinion is expressly in Point 1. Inst. 374. b. that the Warranty 
of Ten't in Tail will bar those in Reversion or RemV notwith- 
standing the Stat- Weston. 2. and is indeed a known & settled 
Point of Law Mo. 9^i. 

Nor is there one Authority ag't it but an Argument in Vaugh. 
305. Bole a Horton In which Case the Court was divided & no 
Judgm't given Nor do I know of any Case since that favours 
that Oj^inion But the Distinction of lineal & collateral War- 
ranties w'ch Vaugh. would explode is still kept up as appears 
from the sd. Stat. 4 & 5. Ann. which as I saved restrains some 
collateral Warranties viz of a Tenant for Life & those who have 
not Estate of Inheritance in Possession The Words are these 

Now this Statute if in Force here would not reach our Case 
because Mount joy who made the Warranty bad an Estate of 
Inheritance in Possion viz. an Estate tail And so such a Warranty 
as this is would bind in England being left as at the Common 
Law unrestrained by any Statute Consequently it must bind 
here And then the Pit. is barred by it to claim any Thing in 
Reversion Obj. this Warranty will not bar because the Re- 
version was not divested or put to a Right before or at the Time 
the Warranty was made 10. Rep. 96. 97. Seymors Case The 
Lease & Rel. is a Conveiance upon the Statute of Uses And no 
such Conveiance will make a Discontinuance Only so much 
passes as the Grantor may lawfully pass And so the Reversion 
is not touched or displaced 10. Rep. supra. 1. Bui. 162. 3. Leon. 
16. 9. Rep. 106. a. b. Consequently the Pit. may lawfully enter 
And wherever there is a right of Entry no Warranty will bar 2. 
Lill. Abr. 684. Jacob, verb. Warranty 

In the Case of (a) Dudley ag't Booth in this Court It was ad- 
judged that a Warranty created upon a Lease & Rel. was a 
Bar But changed their Opinion Apr. 1741 betw. Dudley & 
Perrin post. 317. 

(o) Vide Sir J. Randolph's Argum't No. 4. 



BARRADALL'S REPORTS B213 

For the Respondent it was insisted that there being only Land 
enough to satisfie the 1000 Acres intailed The whole must be 
taken as intailed And then the Deed of 1717. being to defeat the 
Estate tail was void by the Act 9th Anna c. 13. which enacts 
that all Fines &c. Acts & Things [199] whatsoever done towards 
the cutting off avoiding or defeating any Estate tail shall be to 
all Intents' & Purposes null & void 

And of that Opinion was the whole Court except Randolph & 
Digges Apr. 1739. 

But surely this was a most strange Determination And the 
Case could never be rightly understood by the Court The Act 
never intended to make the Deeds of Ten't in Tail absolutely 
void but only with Respect to docking the Intail If it did no 
Action of Coven' t could be maintained on such a Deed Yet many 
such have been brought in this Court Neither could a Warranty 
with Assets be a Bar as was adj'd between Booth & Dudley 
The Statute De Bonis restrains Ten't in Tail from aliening as 
well as this Act of Ass. but no such Construction was ever made 
How does this answer the Argument that the Reversion passed 
by the Deed of 1717 Or the Point of the Warranty Never was 
an Argument so little understood 

Mercers 2 Book 48. 

OCTOBER COURT MDCCXXXVI 

Winston & Ux. ag't Henry & Ux. Adm'x of Syme. Cane. 

John Geddes having a Wife & one Daughter married to Bobby 
by whom she had two Daughters the Pit. Rebecca her eldest & 
Eliz. & was also ensient of a Son by his Will May 18. 1719. 
devises to his Wife 3 Slaves during her Life & the absolute 
Property of six more And gave her during Life a Plantation 
called Totero fort & the Use of all his Stock Household Stuff &c. 
on that plantation and the use of all his household stuff, stock &c. 
at Sandy Point And declared that after his Wifes Death the 
principal Stock & appraised Value of the Goods should be made 
good to those who had Power to demand them by that Will 
And after his Wifes Death gave all his Household Stuff &c. at 
Totero fort to her Daughter & her Daughters to be equally 
divided among them And gave his Daughters eldest Son if any 
such there should happen to be all the Stock & Household Stuff 
at Sandy Point And gave his Wife the Use of most of his Plate 



B214 VIRGINIA COLONIAL DECISIONS 

(naming the particulars) during Life And gave her all his China 
and after his Wifes Death gave the Use of his Plate to his Daugh- 
ter & after her Death to her eldest Son if no such to her eldest 
Daughter He likewise gave his Wife [200] 100;^. of the Mony 
in Mr. Perrys Hands The rest to be equally divided betwixt 
his Daughter & her 3 aforesaid Children And appointed his Wife 
Guardian to the Pit. Rebecca & sole Extrix & desired she should 
return a settled Account of his Estate in Virg'a & Mony in Eng- 
land but should not be obliged to give Security during her Widow- 
hood because of the great Confidence he placed in her just 
Management for herself & others And by a Codicil to his Will 
declared that the Household Stuff &c. given to his Daughters 
eldest Son at Sandy Point in Case there should be no such he 
gave to be divided betwixt his Daughter & her Children already 
mentioned but made no Disposition of the Surplus of his Estate 

The Wife proved the Will & possessed herself of all the Testors 
Slaves & personal Estate amounting besides the Plate devised & 29 
oz. . . 8 pert. . more to 689. 14. 4>^ but never returned a settled Acco't 
of the Estate or of the Monies in England and soon after the 
Testors Death married one Syme The Testors Daughter soon 
after his Death w£is delivered of a Son who died at 7 years old 
before the Testors Wife Syme possessed himself of all the Testors 
Estate & as Guardian to the Pit. got all the Estate so as aforesaid 
devised to her & also what she had from her Father who died in 
1725 After the Death of the Testors Wife in 1728. Syme 
married the Deft. Sarah & died intestate She administered & 
married the Deft. John 

This Bill is brought to have the Plate delivered a Moiety of 
the principal Stock at Sandy Point & Totero fort and of the 
appraised Value of the Household Stuff & a Moiety of the 
Residue of the Testors personal Estate including 200;^. & Costs 
recovered by Syme & his Wife of the Extors of one Danzie 
She & her Sister being next of Kin And to have an Acco't of the 
Pit. Rebecca's Estate & of the Profits while Syme was Guardian 

The Deft. Sarah answers alone & says Syme p'd Bobby & his 
Wife the Pits Father & Mother more Mony than belonged to her 
& her Children in the Hands of Perry and prays to be allowed 
those Paiments That the Testors Wife lived 8 years & used 
the Stock & Household Stuff all that Time & hopes Symes 
Estate shall not be answerable for the appraised Value but for 
the Value at her Death Says she is ready to deliver the Plate & 



BARRADALL'S REPORTS B215 

pay the Pits what is due to them by Geddes's Will and annexes 
sev'l Acco'ts of the Estate & submits how far the Estate of 
Syme is chargeable Says she is ready to account for the Profits 
of the Pits Estate while Syme was her Guardian being allowed 
for her [201] Maintenance & Education And as to that Part 
of the Bill praying a Decree for a Moiety of the Residue of 
Geddes's Estate She demurs & insists the Residue belonged to 
the Extrix Or if it did not the Pits are not intitled to so much 
as a Moiety 

In this Case there are 3 Points 1. Upon the Demurrer whether 
the Surplus of Geddes's Estate is to go to the Extrix or next of 
Kin If to the next of Kin what Part the Pits are intitled to 2. 
Whether the Paiments made by Syme. to the Pits Father & 
Mother & to the Mothers 2. Husband of the Pits Legacy are good 
Paiments to bar her in this Case 3. Whether the Defts. are 
answerable for the appraised Value of the Household Stuff &c. 
or the Value when the Testors Wife died & whether an Allowance 
is to be made for the Goods worn out & the Stock that died in 
her Life time as is sought by one of the Accounts annexed to the 
Defts. Answer 

1. Whether the Surplus not being disposed by the Will is to 
go to the Extrix or be divided among the next of Kin It is 
sayed in otir old Books that the making of a Man Extor is a 
Gift of all the Testors personal Estate And so the Law was 
taken for some Ages till after the Stat, of Distributions 22. & 
23. Car. 2. since when a Change in the Law has been introduced 
as to this Matter Insomuch that it is now become a Kind of 
settled Rule in Equity that where the Surplus is not disposed 
of and the Extor has a particular Legacy given him such surplus 
shall not go to the Extor but to the next of Kin and the Extor 
shall be taken as a Trustee for them Where the Extor has no 
particular Legacy the Law still remains as it was & he shall 
have the Surplus 

The Reason of this Change in the Law I apprehend to be this 
Before the Statute of Distributions the Right to Intestates 
Estates was very unsettled It remained pretty much in the 
Breast of the Ordinary to dispose as he thought fit for to whom- 
soever he granted Administration he had a Right to the whole 
Estate At the Common Law he had a Power to dispose as he 
thought fit to pious Uses & was not obliged to pay the Intestates 
Debts till the Stat, of Westm. 2. The 31. E. 1. gives him Power 



B216 VIRGINIA COLONIAL DECISIONS 

to grant Administration to the next of Kin but the 21. H. 8. 5. 
enacts that he shall grant Administration to the Widow or 
next of Kin or both Yet after this Stat, if Adm'tcon was 
granted to a Stranger unless there was an Appeal in 14 Days 
the Wife & Children were excluded & the Adm'nx run away 
with the whole Estate Which Mischiefs the Stat, of Distributions 
has remedied by directing a Distribution among the Wife Children 
& next of Kin let the Adm'tcon be granted to whom it will 
Vide 3. Mod. 59. to 64. Palmer ag't Allicock 

Now it is plain before this Stat, no one could set up a Right 
to the Surplus of an Estate undisposed of by Will The next 
of Kin had no Right to it unless Adm'r & no Adm'tcon was 
then or is now granted where there is a Will So that the Law 
of Necessity [202] threw the Surplus on the Extor there being 
no other Person that could claim it But now that this Act has 
established a Right in the next of Kin where a Man does not 
dispose of the Residue or Surplus of his Estate Equity will 
regard him an Intestate as to that & decree a Distribution among 
the next of Kin that is where the Extor has a particular Legacie 
given as I have already sayed and that for this Reason that it is 
absurd to suppose a Man should intend to give all & some to the 
same Person And therefore the Devise of a particular Legacie 
makes the Implication very strong and violent the Testator 
did not intend more because it he did the particular Legacie 
must be useless 

I take the Law to be very clear & settled as to this Matter 
where Strangers are made Extors But I must own the Resolu- 
tions are not so unanimous where the Wife is Extrix Yet I 
believe it will appear the Cases are more & weightier that a Wife 
Extrix shall not have the Surplus than that she shall Then 
there are such particular Circumstances in this Case to differ 
it from any that can be shown that I am persuaded it will be 
y V Honours Opinion she ought not to have the Surplus in this 
Case 

The first Case of this Sort that we meet with is Foster & Munt 
L Vem. 473. where the Extor gave particular Legacies to his 
Children & to his Extors lOj^. a piece for their Care And the 
Surplus decreed to be distributed 

Bailey & Powell 2. Vem. 36L Ch. Ca. Abr. 244. 2. The Testrix 
gives particular Legacies to all her next of Ean by Name & 
also to her Extors The Surplus decreed to be distributed 



BARRADALL'S REPORTS B217 

Many other Cases where Strangers were Extors vide Ch. Ca. 
abr. 244. & no Authority to contradict them except where 
parol Proof has been admitted to prove the Testator intended 
the Surplus to his Extor as Batchelor & Searl 2. Vem. 736. 
Cha. Ca. Abr. 246. & Littlebury & Buckley there cited — Vide 
Mod. Ca. Eq. 9. Rashfield & Careless. Ibid 11 & 27. 

Then as to to the Cases where a Wife is made Extrix I conceive 
the Law is the same unless from the Nature of the Particular 
Legacy or some other collateral Circumstance it may be pre- 
sumed or can appear the Testator intended the Surplus to the 
Wife 

Darwell & Bennet cited 2. Vern. 677. The Testator gave his 
Wife 100;^. & the Interest of 300;^. for her Life & made her & 
others Exors Surplus decreed to be distributed 

Ward & Lane cited 2. Vem. 677. A Man made a Will & 
his Wife Extrix Lived 20 years afterwards & acquired an Estate 
Surplus decreed to be distributed 

Lady Granvile a Duchess of Beauford 2. Vem. 648. The 
Duke gave the Use of the Table Plate to the Duchess for Life & 
made her Extrix Surplus decreed to be distributed by L'd 
Cowper This was reversed by the House of Lords not upon 
the Face of the Will [203] but upon the parol Proof as I conceive 
that the Duke intended the Surplus to the Wife And so this Case 
is rather for us The very admitting of Proof being a strong 
Argument the Extrix would not have the Surplus without And 
there is no Sort of Proof in this Case Another Reason for this 
Reversal was because the Duchess had not an absolute but only 
a special Property (a) in the Plate devised to her. Mod. Ch. Ca. 
10. But here the Wife has sev'l absolute Legacies The strongest 
Case against us is — 

(a) Vid. Hoskins a Hoskins Prec. Chan. 268. 

Ball & Smith 2. Vem. 675. Smith devised to his Wife some 
Plate & Goods she had as Extrix to a former Husband And 
the Surplus was decreed to the Wife 2. Reasons given for this 
Decree are because the Will was made before the Case of Foster & 
Munt And for that nothing was devised to the Wife but what was 
her own before Reasons that will not hold in our Case where 
the Wife has a very large & ample Provision The Chancellor 
himself (Lord Harcourt) seemed not to be perfectly satisfied 
but hoped for setting the Point as he sayed it would receive the 



B218 VIRGINIA COLONIAL DECISIONS 

Judgment of the House of Peers Whether it ever did does not 
appear So this is only the Opinion of Lord Harcotu^ supported 
by no preceeding Authority ag*t that of Lord Cowper in the 
Case next before & the Authority of Darwell & Bennet & Ward 
& Lane before remembered 

Then the particular Circumstances of this Case differ much 
from that of Ball & Smith There the Wife had nothing given 
her but was her own before & so in Effect no Legacy Here the 
Wife has very great Legacies six Slaves & 100;^. Sterling abso- 
lutely besides the Use of other Slaves two Plantations Stock & 
Household Stuff for Life From whence the Implication is very 
strong and violent that he did not intend her any more than 
what is particularly given for if he intended her the Surplus the 
particular Legacies are useless 

But there is still something further in this Case & that is a 
Clause in the Will which seems clearly to shew the Testator 
did not intend the Surplus to the Wife He directs her to return 
a settled Account of his Virginia Estate & Mony in England & 
directs that she shall not give Security because of the great 
Confidence he placed in her just Management for herself & others 
To what Purpose was she to return a settled Account if she was 
to have the whole Surplus Then that Expression of managing 
for herself & others is a plain Indication he did not intend her 
the whole So that besides the general Rule where a particular 
Legacy is given to the Extrix that she shall not have the Surplus 
Here are the Words of the Will itself from which I conceive the 
Implication is made stronger that the Testor in this Case did 
not intend the Surplus to his Extrix All these Circumstances 
considered which differ this Case so much from that of Ball & 
Smith the only [204] Authority in Point ag't us And as that 
Case is opposed by more numerous Authoritys & the Chancellor 
himself seemed to doubt I hope there is no Reason to depart 
from the general Rule that an Extor shall not have the Surplus 
where a particular Legacy is given but that it shall be distributed 
among the next of Kin 

As to the Share of the Surplus the Pits, are intitled to I con- 
ceive it is a Moiety if any Geddes left only one Daughter whom 
the Pit. & her Sister represent If the Surplus does not belong 
to the Extrix the Representatives of the Daughter must be 
intitled to it & consequently the Pit. to one Moiety The Defts. 
I suppose would bring in the Wife to have a Share of the Surplus 



BARRADALL'S REPORTS B219 

with the Daughter but I apprehend she ought not to be let into 
any Share any more than to the whole It is true if Geddes had 
died Intestate the Stat of Distributions would have given a 3d 
to the Wife but this Case is very different We are now before 
the Court not for the Distribution of an Intestates Estate but to 
take the Stirplus from the Extrix upon a Presumption or Im- 
plication that the Testor did not intend it to her This Intention 
is proved by the Devise of particular Legacies to the Extrix 
From whence we say the Implication is strong & violent he did 
not intend her any more This Argument then is as strong to 
exclude her from any Share of the Surplus as from the whole 
The Surplus in these Cases is taken in Equity as a Trust in the 
Extor for the next of Kin but this must be understood of such 
as the Testor has not excluded by his Will Here is no Room to 
imply a Trust for them whom the Testor has declared shall not 
have it And therefore in this Case if he did not intend his Wife 
more than is particularly given his Intention is clear to exclude 
her from any Share of the Surplus And then the Pits are well 
intitled to a Moiety 

This Point is not touched in any of the Cases supra Only in 
that of Lady Granvile ag*t Duchess of Beauford it seems the 
Duchess was to have a third 

2. Whether the Paiments made to the Pits Father & Mother & 
to the Mothers 2d Husband are to be allowed as a Satisfaction 
of the Pits Legacy And I conceive not It is true formerly 
the Chancery did allow a Paiment to the Father of a Legacy given 
to an Infant to be a good Paiment with this Difference which 
seems to have little Foundation in Reason viz If the Extor 
took Security taindemnifie him then he paid it at his own Peril & 
should be chargeable to the Infant Notwithstanding such Pai- 
ment But if he took no Security the Paiment was good ag't 
the Infant 1. Ch. Ca. 245. But this Practise giving a Handle 
to indigent Parents & [205] knavish Extors to juggle Infants 
out of their Rights the Chancery of later Times has thought 
fit to extend their Care further for Infants and such Paiments 
are now always disallowed It is become a settled Rule and even 
where the Circumstances are ever so hard such Paiment will 
not be allowed So it was decreed by Lord Cowper Mich. 1715. 
between Doyley & Tollferry where the Hardships upon the 
Extor were very singular the Son living 15 Years after he was 
of Age & having a Promise from his Father when in good Cir- 



B220 VIRGINIA COLONIAL DECISIONS 

cumstances to pay it tho he afterwards became insolvent But 
the Chancellor to discountenance the Paiment of Infants Legacies 
to their Parents And that the Case might not be cited as a 
Precedent when the particular Circumstances attending it were 
forgotten Decreed ag't the Extor Ch. Ca. Abr. 300. 1. Wil 285. 
S. C. Rep'ts in Equity 103. S. C. Rep'ts in Eq. S. C. 

By this Case it appears to be a settled Rule in Equity to dis- 
allow the Paiment of an Infants Legacy to the Parent And 
after reading this Case it may seem needless to say any thing 
more upon this Head But to put this Point beyond all Dispute 
I must observe further that Mr. Syme who pretended to make 
these Paiments was actually the Pits Guardian It is admitted 
in the Answer And the Defts. submit to account for the Guardian- 
ship This pretended Paiment then to the Father must be looked 
upon as a meer Fraud especially when the Nature of this pre- 
tended Paiment is considered w'ch appears by the Acco'ts an- 
nexed to the Answer Mr. Syme sells to Bobby the Pits Father 
his Wife's Estate for Life in the Totero Plantation and the Cons. 
Bobby was to pay viz. 127.<;^. is charged in the Defts. Acco'ts 
as a Paiment in Part of the Pits. Legacy And this is the greatest 
Part of what is pretended to be paid to the Pits. Father As 
to the Paiments to the Mother or her 2d Husband I presume 
nothing need be sayed There is no Instance that such Paiments 
were ever allowed under any Circumstance much less then in this 
Case I am sorry to observe Mr. Syme's Conduct carrys not the 
fairest Appearance Surely it was his Business as the Pits. Guar- 
dian to retain what belonged to her & not pay it to a Father or 
Mother that he knew were indigent & careless The principal 
Reason why a Paiment to a Father was formerly allowed was 
this that the Father is by Nature Guardian to his Child but that 
Reason must cease where there is another Guardian So that 
here was no Kind of Pretence to pay to the Father And therefore 
this pretended Paiment must be looked upon as a Contrivance 
of Symes to secure the Mony due from Bobby upon the Sale of 
the Plantation And so is a fraudulent Paiment that ought 
to meet with no Countenance in Equity admitting such Paiments 
were sometimes allowed But as the Rule of Equity is general 
that no paiment to a Father of his Childs Legacy is good under 
any Circumstances Here can be nothing sayed to support such 
a Paiment upon the particular Circumstances of this Case 
[206] 3. Whether the Defts. are answerable for the appraised 



BARRADALL'S REPORTS B221 

Value of the Household Goods or the Vahie when the Testors 
Wife died And whether any Allowance is to be made for the 
Goods worn out & the Stock that died in her Lifetime I con- 
ceive there is no Ground for the first Part of this Question The 
Testors Will is express that the appraised Value of the Goods 
shall be made good to those in Rem'r I hope what the Testor 
has expressly directed shall be complied with. Nor is there any 
thing in the Objection that may be made that then the Legacy 
is of small Benefit It is to be considered the Wife has very 
great Legacies besides and it is surely some Advantage to have 
the Use of Things during Life to pay their Value at a great 
Distance of Time as in this Case after Death However that be 
the Testors Words are express & there is no Room to make 
other Construction And if so [sic] 

Then certainly no Allowance is to be made for the Goods worn 
out by the Testors Wife There is a great Difference between 
this Case and a common Devise of the Use for Life with Rem^r 
over In the common Case I agree if the Goods are worn out 
in Life time of the Devisee for Life he in Rem'r must be contented 
with what is left of the specifical Goods devised but here we 
are not to have the Goods but the appraised Value after the 
Wifes Death And so it is the same as if he had sayed My Wife 
shall have the Goods paying the appraised Value at her Death 
This was clearly the Intention And if we are to have the appraised 
Value at all we must have the Value of the whole Goods 

As to the Cattle that died in the Wifes Life I think no Allow- 
ance ought to be made for them neither the Testor directs that 
after his Wifes Death the principal Stock shall be made good 
to those in Rem'r By which I apprehend he intended that his 
Wife should have the Use & Benefit of the Stock & the Increase 
but that as good a Stock as the principal was at his Death 
should be made good after her Death to those in Rem'r It 
cannot be supposed he intended only what should be left of the 
specifical Stock should go to those in Rem'r that must have been 
an useless Devise after a Life since he could not suppose many 
of them would be then left Therefore by directing the principal 
Stock to be made good he must intend a Stock of equal Value. 
And then it is nothing to the Purpose if they had all died The 
Wife might have refused the Legacy if she did not like it but 
having accepted it she must perform the Condition upon which 
she accepted it that is to account for a Stock of equal Value 
to those in Rem'r As she had the Use of this Stock & the Benefit 



B222 \nRGI\IA COLOXIAL DECISIOXS 

of the Increase she ought to bear the Loss Qui sentii CA^mniodum 
Sec, 

Randolph for the Deft. The Surplus of an Estate undisposed 
[207] of by Will has been sometimes decreed for the next of Kin 
& some times for the Ex'r according to the Testators Intention 
[sic] the Rule to govern these Cases The Wife here brought 
a great Fortune to the Husband who was a Beggar Upon the 
Marr he articled to give her 200;f besides a third of his Estate 
as appears from a Clause in his Will The provision made for 
her by the Will is not equal to that. And it ought to be presumed 
the Testor intended to do Justice which he will not tmless the 
Wife has the Surplus Marr Articles ought to be supported And 
the Wife had such an Equity by those Articles as ought to rebut 
the Pits. Besides there is a great Difference where the Wife & 
where a Stranger is made Extor And there is no Instance where 
the Surplus has been taken from a Wife Extrix Except that 
of Ward & Lane supra It is not to be supposed a Man makes 
his Wife Extrix meerly to give her an Office of Trouble but 
rather of Benefit to take the Surplus Cited Griffith & Rogers & 
Jones & Westcomb Ch. Ca. Abr. 245. 8. 10. Ball & Smith & 
Bachelor & Searl supra both which were much relied on He 
agreed the Paiments were not good but insisted the Plt.s ought 
to take the Stock & Household Goods in the Condition they were 
at the Wifes Death And that the Defts. were not accountable 
for the appraised Value 

Repl. The Testers Intention is the undoubted Rule to govern 
Cases of this Sort And this Intention may be either expressed 
or implied The Argument here is drawn from an implied In- 
tention of the Testator A strong & violent Implication that he 
could not intend the Surplus after devising so many & valuable 
Legacies And without a strong & violent Implication I agree 
the Surplus is not to be taken from the Extor which is all that 
can be collected from the Case of Bachelor & Searl so much 
relied on Parol Proof was there admitted in Favour of the Extors 
Title And without that Proof the same Chancellor (Cowper) 
decreed ag't the Extrix in the Case of La. Granvile & Dss of 
Beauford Supra As to the Case of Griffith & Rogers the Wife 
there had only ten Books given her & it could not be supposed 
the Testor intended her no other Provision Jones & Westcomb 
is indeed a stronger Case but possibly it turned upon the Nature 
of the particular Legacy being a Term which is a Chattle real & 



BARRADALL*S REPORTS B223 

no Devise to the Wife of any Estate meerly personal And then 
both these Cases are within the Rule I first laid down. Note 
this last was a Decree of Lord Harcourts & about the same Time 
with Ball & Smith There seems to be little Foundation in 
Reason for the Difference where a Wife & where a Stranger 
is Extor Especially where the Wife has a handsome Provision 
as in this Case Certainly the Implication is as strong that the 
Testor intended no more in the one Case as the other The 
Circumstances of the Wifes bringing a great Fortune & the Man* 
Articles are not at all in Proof & so ought not to influence But 
admitting all to be true that is sayed the Husband by the Marr 
acquired the absolute Property in his Wifes Fortune & might 
dispose as he pleased Nor can it be thought reasonable or equi- 
table that he [208] should give all to his Wife & leave his Child & 
Grandchildren to starve And as to the Marr Articles it will be 
Time enough to talk of them when a Performance of them is 
sought for 

Oct. 1736. The Court decreed the Stirplus to be distributed & 
the Wife to have one third that the Paiments were not good that 
the Defts. sho'd acco't for the Value of the Household Stuff at 
the Time of the Wifes Death And for as good a Stock as was 
left by the Testor at his Death And pay the Pits, a Moiety of 
the Value 

As to Distribution of Surplus see Farrington a Knightley 
Prec. Chan. 566. & 1. Will. 544. In w*ch last all the Cases are 
collected & settled clearly for a Distribution where Ex'r has a 
Legacy & no Diff . Whether a Wife or a Stranger be Ex'r 

See also Prec. Chan. 323. 



APRIL COURT MDCCXXXVII. 

Robinson ag't Armistead & al. Cane. 

The Bill sets forth that John Armistead & Robt. Beverley 
deced jointly purchased 100 A. of Land in Com. Glouc. which 
was conveied to them by Deed Jan. 17. 1680. for the Cons, of 
50;^. That Beverly by his Will Aug. 20. 1686. devised his Half 
part to his Dau'r Catherine in Tail & soon after died After 
which Armistead became solely possessed of the Premes & died 
possessed And after his Death John Armistead his eldest Son & 



B224 VIRGIXIA COLONIAL DECISIONS 

Heir entered & was possessed & died possessed After whose Death 
his Son & Heir John Armistead entred & died possessed leaving 
the Deft. John Armistead his Son & Heir an Infant That the s'd 
Cath. at the Death of Beverley was an Infant & before 21. 
married John Robinson Esq*r the Pits. Father now living And 
died in 1720. leaving the Pit. her eldest Son & Heir then an 
Infant And since the Death of Armistead the Grandson The Defts. 
Burwell Armistead & Ehidley in Right of the Deft. Armistead 
an Infant have entred into the Premes claiming the whole by 
Survivorship & refuse to make Partition with the Pit. Praying 
therefore that the Defts. may answer the Premes And the Pit. 
be relieved according to Equity. 

The Defts. demur & answer and assign two Causes of Demurrer 
1 . That the Pit. seeking to be relieved ag't a Right of Survivor- 
ship accrued by the Course of the Common Law to the Defts. 
great [209] Grandfather so long ago as 1686 There is not 
sufficient Matter of Equity in the Bill to entitle the Pit. to 
such Relief Especially at this Distance of Time 2. That the 
Pit. hath no good Title for that Beverley being jointly seised with 
Armistead could not by Law devise but such Devise is void both 
in Law & Equity 

For Answer say they are Strangers to most of the Matters in 
Bill But believe there was such Conveiance to Beverley & Ar- 
mistead the Deed being in one of their Custody Have heard it 
was agreed between them that the longest Liver sho*d have the 
whole And that Armistead the great Grandfather gave the 
Pits. Mother a Slave which she declared she thought the full Value 
of any Right she might have to the said Land and therefore 
would never sue for it or suffer her Husband to do so Submit 
whether a quiet Possession of 50 Years under a legal Title ought 
to be now impeached upon the Pretence in Bill 

I am now to speak to the Demurrer. It is granted by the 
bringing of this Bill that Armistead & Beverley by the Purchase 
& conveiance to them were Joint-tenants It is not pretended 
that one paid more of the Purchase Mony than the other Or 
that there was any Agreem't that Survivorship should not take 
Place Or any other equitable Circumstance to differ this from 
the common Case of Joint-tenancys The Question then upon 
the first Cause of Demurrer is whether Equity will relieve ag't 
the Right of Survivorship between 2 joint Purchasers paying 
equally for the Purchase Or in other Words whether Equity 



BARRADALUS REPORTS B225 

shall controul & overturn the most ancient & established Rules 
of Law For 

I take this Jvls accrescendi or Right of Survivorship between 
Joint ten'ts to be of as great Antiquity as any thing in our Law 
It is not the Subject of any written Law now extant but is a 
Part of the Lex non scripia vulgarly called the Common Law It 
was introduced as I presume with the Feudal Law And had 
its Origin probably from this To prevent the dividing & multi- 
plying of Tenures. See L Sal. 392. But this is only my own 
Conjecture For I confess I am not Lawyer enough to know 
whether this Jus accrescendi is a Part of the feudal Law or obtains 
in Lombardy & those other Countries where that Law is received 
It is certainly unknown in the Civil or Roman Law in the Sense 
we speak of There is indeed a Jus accrescendi a Right of Ac- 
cretion by that Law But then it is in Cases of a different Nature 
i.e. of Succession & Legacies where there are 2 Heirs or Legatees 
& one refuses or becomes incapable to take his Share the other 
has the whole Jure accescendi 2. Dom. 85. 

But however this Law was first introduced Or whatever 
was the Reason or Policy of its first Institution It is without 
Doubt very ancient among us as appears by Littleton & Sr. 
Edward Cokes [210] Commentary and from Bracton Lib. 4. 
262. b. And obtains as well between Joint ten'ts of Lands as of 
Chattels real & personal Except between Joint Mierchants or 
Partners 1. Inst. 181. a. 181. b. And I take it to be clear that 
this Survivorship takes Place in Eqtiity as well as at Law Except 
there be an Agreem't to the contrary or some other Circumstance 
Upon which Equity may construe or presume a Trust in the 
surviving Party for the Benefit of the deceased 

In the Case of joint Purchasors I take this Difference Where 
two purchase jointly & pay the Cons, equally Unless there is 
some Agreem'.t to manifest their Intention that Survivorship 
shall not take place it shall be taken that they agreed to run the 
Chance & Hazard of Survivorship which is equal to both And so 
it may be compared to a Wager And then there is no more In- 
justice or Hardship with Respect to natural Justice that the 
Survivor should have the whole than that the Winner of a Wager 
should insist on the Money won But where one Purchasor 
pays more than the other or in Case of a Lease lays out more in 
Repairs there it cannot be supposed that they agree to run the 
Risque of Survivorship because of the Inequality and because 



B220 VIRGINIA COLOMAL DECISIONS 

by that Cleans he that is at little or no Expense might ran away 
with the whole which being unequitable, a Court of Equity will 
relieve ag't Surviorship by constructing a Trust in the surviving 
Party and so preserve the respective Interests of either Party in 
Proportion to the Mony advanced See Ch. Ca. Abr. 290. c. 3. 

And this appears from the foil. Cases 

2()()£. was devised by Will to be laid out in Lands & settled 
to the Use of A. & the Heirs of her Bodv Rem'r to the Children 
of B. Before the Monev was laid out A. died without Issue the 
Trustees afterwards purchased & settled the Lands on the 
Children of B. jointly in Fee according to the Will One of the 
Children died And adjudged the Survivor should have the whole 
3 ch. Rep. 214. Sanders versus Ballard Carth. 15. s. c. This 
Case is likewise reported 2. Vem. 46. contrary viz. that the Sur- 
vivor should not have the whole But the Report there is very 
short & without any Reason whereas the other Books assign 
the Reasons of the Decree & are much fuller And therefore 
more probable to be right And in these last there is a DiflFerence 
taken in Case the Money had not been laid out Nothing of 
which appears in Vernon and this I take to be a Case in Point 

The Pits. Husband & the Deft. & their Ancestors had long 
enjoyed a Church Lease in Moieties & had often [211] renewed 
under an Agreem't to take no Advantage of Survivorship 
Upon the last Renewal there was no express Agreem't to bar 
Survivorship The Pits. Husband being sick by Deed assigned 
his Moiety to his Wife and also devised it to her by Will Yet 
Decreed the Pit. should not be relieved ag't the Survivorship 
And that the Grant & Devise are both void 2. Vem. 385. Moyse 
ag't Gyles This may appear a hard Case since there was Room 
for Equity to presume the last Lease was renewed under the 
same Agreem't as the former or to make good the defective 
Conveiance to the Wife But the Grant & Devise being void in 
Law And no Agreem't appearing to the contrary the Common 
Law was suffered to take its Course and Equity would not relieve 
ag't it 

A Lease for Lives was made In trust for two One dies Decreed 
the Surv'r shall have the whole For the Trust must go as the 
Term at Law would have done And as Survivorship would 
have taken Place at Law So it must in Equity Pas. 1706. Aston & 
al. versus Smallman & al. 2 Vem. 556. Here in the Case of a 
Trust which is properly under the Direction of Equity The Court 



BARRADALL'S REPORTS B227 

would not interpose or hinder the Course of the Common 
Law 

These I take to be very strong Cases I shall now read another 
a very recent one where you will have the Opinion of the present 
Master of the Rolls. Lake & Gibson Ch. Ca. abr. 290. c. 3. 

For further Authority See L Vera. 33. 217. 360. 

These Cases do I think very fully make out the Rule I laid 
down & the Difference I have taken viz that Survivorship takes 
Place in Equity as well as at Law Unless there be an Agrem't 
to the contrary or some other circumstance to induce a Pre- 
sumption of a Trust Nothing of which appears in this Case Not 
the least equitable Circumstance whatever And I will be bold 
to say that in in a Case of this Nature there is no Instance to be 
given that a Court of Equity did relieve ag't Survivorship It 
would indeed be setting up such a Power in the Chancery to 
controul & overturn the Common Law as must render Right & 
Property very precariotis Instead of being determined by fixed 
& settled Rules & Principles Law & Right must depend upon 
arbitrary Decisions which are ever fluctuating & contradicting 
one another This is I believe a Case of the first Impression And 
if the Pit. succeeds in overturning this ancient Rule of Law I 
shall expect next to have a Bill brought by the younger Children 
ag*t the Heir to have the Inheritance divided Since I am sure 
in the Reason of Things & according to natural Justice there is 
as little I may say less Reason that the eldest Son should run 
away with [212] the whole Estate & the younger Children be 
left to starve than that of 2 Joint tenets the Survivor should 
take the whole 

I shall say nothing here of our long Possession Nor enter into 
the Dispute how far the Act of Limitation may bar in this Case. 
Conceiving it to be very clear upon what has been sayed that 
Equity ought not to relieve in this Case For the same Reason 
I shall be very short in speaking to the 

2. Cause of Demurrer which is that the Pit. has no good Title 
admitting Survivorship does not take Place His Title is under 
the Will of Beverley who being jointly seised with Armistead 
could not Devise but such Devise is void both in Law & Equity 

There is no Rule of Law more universally known than that a 
Joint ten't cannot devise But to demonstrate It is to be con- 
sidered that Lands were not deviseable at the Common Law 
Except in particular Places by Custom The Stats, of 32. & 34. 



B228 VIRGINIA COLOxNIAL DECISIONS 

H. 8. 5. give Men a Power to devise their Lands and by the express 
Words of this last Act they must be sole seised So was the 
Common Law before the Statute where Lands were deviseable 
by Custom a Joint ten*t could not devise Lit. S. 289. L Inst. 185. 
So the Statute was made in Conformity to the Comon Law 
This Devise is therefore void And so it was adjudged in the Case 
of Moyse & Gyles supra The Pit then has no Title If any 
one has It is Beverley's Heir who at least should have been made 
a Party to this Suit 

Needier for the Pit. Survivorship has no Foundation in 
natural Justice The Reason why it takes Place at Law is from 
an implied Consent but that is not sufficient in Equity Besides 
here the Implication is destroied by Beverley's Will which shews 
it was not his Intention Survivorship should take Place 

Suppose a Man sho'd lay out his whole Fortune in a Purchase 
with another jointly & die Would it not be a most cruel Deter- 
mination to send his Posterity a begging & let the Survivor 
run away with the whole In the Case of Grants from the Crown 
to two jointly It has been often adjudged in this Court that the 
Survivor should not have the whole Land. (2). Regularly Sur- 
vivorship never takes Place in Equity but in Case of a Gift to 
two jointly In Case of a Purchase Equity always construes 
it a Trust in the Survivor The Cases cited for the Deft, are 
chiefly of Terms which are inconsiderable Besides Precedents 
are of little Weight in Equity where every Case must stand upon 
its own Bottom That if it was a Trust in the Survivor The 
Devise by Beverly was a good Appointment in Equity An 
equitable Interest is devisable As where one has agreed for 
[2L3] the Purchase of Lands & dies before Conveiance he may 
devise the Lands 

He cited Petit & Steward 1. Ch. Rep. 57. Jefferys & Small L 
Vern. 217. & Usher & Ayleworth I Vem. 360. But note the 
first is a case of Money lent on a Mortgage and one advanced 
more than the other The second is the Case of a joint Stock 
in a Farm And even there it is sayed if a Lease of the Farm 
had been taken the Interest would survive And the third is the 
Case of a Building Lease where one advanced more in building 
than the other So that they all fall within my Distinction 
supra In this last Case Relief was denied because of a Purchase 
& Length of Time quod noia 

April 1737. Demurrer allowed by the Opinion of the whole Court 



BARRADALL'S REPORTS B229 

OCTOBER COURT MDCCXXXVI 
Rose Extor Bagg ag't Cooke & al. Ante 179 S. C. 

The Defts. having pleaded that they were under Age and 
praied that the Parol might demur Upon Demurrer Judgment 
was given quod respondeant ouster After which they pleaded 
in Abatement of the Writ that there is another Devisee in the 
Will not named in the Writ To which the Pit replied an Im- 
parlance the former Plea & Judgment And thereupon demurred 
And it was argued for the Pit. 

That this Plea being in Abatement could not be pleaded after 
Imparlance which was a known & settled Point 1 Vent. 76. 137. 
Sti. 187. 2. Lutw. 22. 24. 8 Mod. 43. 381. 

It is true Matter of Abatement may be pleaded after a special 
Imparlance And it is also true that the Deft, here in the Office 
had a special Imparlance granted but the Plea is pleaded with- 
out any Notice of it And therefore they have waived & lost the 
Benefit of it. 

The Nature of an Imparlance is nothing else but the Con- 
tinuance of the Cause to a further Day for the Deft, to advise 
what to plead Terms of the Law 289. And when the De.'t. has 
anything to plead in Abatement he takes his Imparlance with 
a Salvis sibi omnibus advantagiis &c. And this is called a 
special Imparlance After which Matter of Abatem't may be 
pleaded as I sayed 

[214] In England these special Imparlances are granted by 
the Secondaries in B. R. & the Prothonotaries in C. B. as they 
are by the Clerk here out of Court out of Court [sic] And there 
are various Sorts of them as with a saving Exception to the Writ 
— to the Writ & Declaration — or with a Saving of all Excep- 
tions whatsoever Hard. 365. 1 Sal. 1. And when the Deft, comes 
to plead he shews the Nature of his special Imparlance in his 
Plea And this of Necessity for 2 Reasons 1. that the Court may 
judge whether the Matter he pleads is proper after such Im- 
parlance because if it be not the Plea will be judged naught 
For Instance if the Imparlance be only with a Saving to the 
Writ or Bill he shall not plead to the Jurisdiction or any Matter 
in'Abatement of the Count or Decl. 1 Sal. 1 Hard. 365. 2. That 
the Imparlance may be made a Part of the Record And so are 
all the Precedents that I have seen of special Imparlances 1. 



B230 VIRGINIA COLONIAL DECISIONS 

Lutw. 6. 44. The Clerk in making up this Record can take no 
Notice of this Imparlance not being in the Plea So if the 
Record was made up here as it is in England before Trial it 
could not appear there had been such Imparlance Nor will it 
appear to Posterity And then if Judgment is given upon this 
Record for the Deft, it will not appear but that this Courts 
Opinion was that Matter of Abatement may be pleaded after a 
gen'l Imparlance which I presume it is not From hence I argue 
the Necessity of shewing the Imparlance in the Plea And that 
where the Deft, does not do it Tis in Effect a Waiver of it 
At least this Plea is defective in Form the Preced'ts being all 
ag*t it And in Pleas of Abatement which are generally for Delay 
the greatest Strictness & Nicety of Pleading is required the 
Reason is because they are not to be encouraged or favoured 

But if this Objection will not hold this Plea being after another 
dilatory Plea & a Judgment thereupon quod respondeat ouster 
can never be good Tis as known & settled a Rule as any in 
Practise that two dilatory Pleas shall never be allowed to one 
Action The Reason is that by the same Rule 20 may be pleaded 
And so the Pit. delaied ad infinitum And this Reason is so forcible 
it needs no Comment For Authoritys See 2 Sand. 41. 

There is however an Exception to this Rule where the Cause 
of Abatem't has happened since the last Continuance Now 
every Plea in Judgment of Law is dilatory that tends to obstruct 
or delay the Trial of the Merits & Right of the Cause Within 
which Notion both these Pleas of the Defts. come the 1. Plea 
that the Defts. are under Age & therefore praying that the 
Parol may demur is to delay the Process till the Defts. full Age 
The Plea now under Cons, is to obstruct the Trial of the Merits 
by abating the Writ These then certainly are both dilatory 
Pleas & therefore this last is not to be allowed 
[215] Note this Plea ought not to have been received And the 
proper Way would have been to have refused it in the Office 
And so brought it before the Court upon a Motion 2. Sand. 41. 
If the Court is ag't me in this Point Then I object to the Matter 
of this Plea that it is frivolous & really no Cause of Abatement 
The Obj. is that there is another Devisee who is not named in 
the Writ The Statute upon which this Action is founded 

does not require that all the Devisees should be joined in the 
Writ And it ought to be construed so as to give the most ample 
ready & benficial Remedy to CredVs Now it often happens 



BARRADALL'S REPORTS B231 

that there are Disputes upon a Will who shall take by such a 
particular Devise And must the Cred'rs wait till that is de- 
termined Certainly no But if other Lands are devised con- 
cerning which there is no Dispute the CredV may sue these 
last Devisees & have Judgment ag*t them And there is no 
Inconvenience that Judgment should be ag't some Devisees 
only & not ag't all because those ag't whom Judgm't is had 
may compel the others in Equity to contribute Further a Man 
may take upon him to devise Lands he has no Title to And shall 
a Cred'r who knows this be compelled to sue the Devisee of such 
Land with other Devisees and so create an unnecessary Expence 
on both Sides Certainly the Act can never receive such a Con- 
struction 

Besides it appears by the Act itself that some Devisees ought 
not to be sued There is a Proviso that Devises for paying 
just Debts or for raising younger Childrens Portions pursuant 
to Articles before Marriage shall be good And where Lands 
are so devised the Devisees ought not to be sued or joined 
in the Writ ag't the other Devisees Therefore in this Plea of 
the Defts. upon the Face of it is no good Cause of Abatem't The 
Plea is only that there was another Devisee Now it is plain 
by the Stat, all Devisees are not liable Therefore the Defts. 
should have shewn not only that there was another Devisee 
but that he was liable by alledging he was not within the Proviso 
before mentioned Otherwise it can't appear to the Court that 
he ought to be joined in the Writ And consequently the Plea is 
not good 

But the Truth is that this Devise to Timmons (the Devisee 
not named) is clearly within the aforesaid Proviso And that was 
the Reason he was not joined in our Action The Devise is of 1500 
A. to him in Fee — Then follows — ** he paying 1261 lbs. of 
Tob'o due to my Estate to my Extrix & no otherwise to have 
the said Land the said Tob'o being due for Composition & other 
Fees for Lands taken up On which Acco't I have devised 
to him the s'd Tract " The Case between this Timmons & 
the Testor is pretty plain from the Words of the Will They 
had taken up Lands together which I suppose were granted 
to the Testor alone who like an honest Man [216] devises half 
to Timmons upon paying the Composition This I say is pretty 
plain from the Will & is the Truth of the Case Now to what 
Purpose sho'd this Man be sued since nothing is devised to him 



(( 
II 



B232 VIRGINIA COLONIAL DECISIONS 

but what was properly his own He had the equitable Right & 
might at any Time have compelled a Conveiance of the legal 
from the Testator or his Heirs This Land could not be made 
subject to the Testors Debts in his Life time nor can be since 
his Death It would therefore have been an unnecessary Ex- 
pence & Trouble to this Devisee as well as the Pit. to have joined 
him with the Defts. in this Action 

I might further insist that this Case is undoubtedly within 
the Equity & Meaning of the Proviso in the Stat, but enough I 
hope has been sayed to shew that this Devisee ought not to have 
not to have been sued And this Plea as to the Matter of it is 
naught. 

Mr. Att. Gen'l for the Deft. The Matter of this Plea is a good 
Cause of Abatement & well enough pleaded If the Devisee is 
such a one as ought not to be sued it comes properly on the Pits. 
Part to shew that by Way of Repl. But the Deft, is too late to 
plead this Matter after a former dilatory Plea & Judgm't quod 
respondeat ouster. 

And so Judgm't was given that the Deft, sho'd answer further 

N B w't is sayed above that this Plea should not have been 
received October 1736. 

Spicer Adm'x &c. of Stone ag't Pope & al 

John Stone by his Will Apr. 27. 1695 devises his Plantation & 
the Profits of his Slaves & personal Estate to his Wife during 
Life And declares his Will to be *' that his Son R'd Metcalf & 
** Daughter Ann his Wife live upon the said Plantation after 
** her Death during their Lives and also keep & employ the 
** Negros upon the s'd Plantation making Use as they shall see 
** Cause of all the Profits of his said Land & clear produce of his 
*' s'd Negros Stock & Plantation Except the Increase of his s'd 
** Negros there-after given away." Then devises to Mary & 
Eliz. two Daughters of R'd & Ann Metcalf a Negro a piece by Name 
& to John their Son a Negro Child the next that should be bom 
Then foil, this Clause " I give unto my Daughter Ann's Children 
*' that she shall bear hereafter one Negro Child apiece as it 
shall please God the [217] Negro Women shall bear them 
Further it is my Will that if any of the s'd Children prove 
disobedient to them that the s'd R. Metcalf & Ann his Wife 
do keep them until they shall submit themselves in Obedience 



K 
14 

«( 



BARRADALL'S REPORTS B233 

** to their Parents." Then gives all his personal Estate to be 
divided among R'd & Ann Metcalfs Children after their Deaths 
And make R'd Metcalf Henry Fleet & Edwin Conway Extors 

The Testors Wife died before him And Metcalf upon his Death 
got all the Slaves & personal Estate into his Possion without 
proving the Will w'ch was not produced till after his Death in 
1699. & was then proved in Richmond Court by the Witnesses 
only A. M. after her Husbands Death got Possion & marrying 
one Barrow he was thereby in Possion Ann survived Barrow & 
died in 1728. She had four Children by Metcalf Mary Eliz. & 
John af'd & Sarah bom after the Will made to whom after their 
Mothers Death Stone's Estate belonged by his Will 

The Pit. one of these Children having never reced any Part 
Except the Slave devised to her sues out an Adm'econ cum- 
testo annexe Metcalf & Conway 2 of the Exors being dead without 
proving the Will & Fleet the other refusing And brings this 
Bill for a Discovery of the Slaves & personal Estate of Stone 
that they may be divided according to his Will And she have her 
4. Part 

The Defts. set up sev'l Titles to these Slaves Some of them 
under the other Children of R'd & Ann Metcalf & others under 
the Children of Ann by her 2. Husband Barrow who they say 
are intitled to a Child a piece And the Deft. Rust has some 
Plate & other Things of Stones Estate 

Before I speak to the Merits of this Case I will beg Leave to 
clear it of 2 Objections very much insisted on at the Trial at Law 
viz. 1. the Staleness of the Pits. Claim after a Division as pre- 
tended of the Slaves pursuant to Stones Will 2. The Irregularity 
pretended in Pits, suing out Administration 

As to the 1. It is true the Testor had been dead a long Time 
but the Pits. Title did not accrue upon his Death but on the 
Death of Ann Metcalf the Surv'r of the Devisees for Life which 
happen'd no longer ago than 1728 In 1729. Pit. sued out 
Adm'econ & this Suit has been depending ever since So that 
we sued as soon as ever our Title happen'd And as to the Division 
talked of the Pit. never had one Slave or other Part of the Estate 
Except the Slave devised to her So that whatever Division 
has been among the rest is nothing to her She has never had 
her Part And surly there is no Injustice in seeking to obtain it 
2. As to the Irregularity in the Adm'econ I apprehend that 
[218] Poin cannot now properly be enquired into In England 



B234 VIRGINIA COLONIAL DECISIONS 

we know the granting of Adm'econ is the Province of the Spirit- 
ual Courts And the Chancery cannot controul them but if they 
proceed irregularly the Course is to obtain Prohibitions & 
Mandamus's from the Common Law Courts And in the Case of 
a Probate of a Will tho' great Fraud has appeared in making 
the Will Equity has refused to set aside the Will so long as the 
Probate was in Force 2. Vem. 8. Archer & Moss. 76. Nelson vs 
Oldfield Now this Court has it's true a threefold Jurisdiction 
as a Court of Equity a Court of Common Law & it has also 
Jurisdiction of Testamentary Matters But then these Juris- 
dictions must not be confounded the proper Bounds between 
each ought to be kept up And this as a Court of Equity will 
no more intermeddle with testamentary Matters than if they 
were sitting as a Court of Law they would judge by the Rules 
of Equity — This Adm'econ then must be taken to be regular 
till it is repealed which this Court as a Court of Equity cannot 
do But to take away all occasion of Cavil I will shew that this 
Adm'econ is perfectly regular The Course of the Spiritual 
Court being where the Extors refuse or die before Probate to 
grant such an Adm'econ as this viz. cumtesto annex. 1 Sal. 304. 
Wankford ag't Wankford And that was the Case here 2 of the 
Exors were dead & the other refused An Adm'econ De bonis 
non would have been improper as none of the Exors ever proved 
the Will. I will only add that Pit. having a Right by the Will 
might have brought this Suit T^dthout taking Adm'econ at all 
But she was first advised to bring an Action at Law And so an 
Adm'econ was necessary 

The Questions arising upon the Merits of this Cause may be 
4. 1. What Estate or Interest Richard & Ann Metcalf had in 
the Slaves & personal Estate by the Will. 2. Whether the Devise 
of the personal Estate to their Children after their Deaths be 
good And what will pass by this Devise of personal Estate. 3. 
Whether the Devise to John Metcalf & to the Children said Ann 
should bear thereafter of a Negro Child apiece as the Negro 
Women should bear them be a good Devise. If it be Then 4. 
Whether Ann's Children by her 2. Husband Barrow are intitled 
to a Negro Child apiece by that Devise 

1. As to the Interest Richard & Ann Metcalf had There is 
no express Devise to them of the Slaves or personal Estate. 
The Testor only directs that **they shall keep & employ the Negros 
" upon the Land making Use of all the Profits of his Land & 



BARRADALL'S REPORTS B235 

** clear produce of his Negros, Stock &c " Which can be construed 
no more than a Devise of the Use & Occupation. But then by 
the Devise to their Children after their Death they have the Use 
for Life by Implication And surely it cannot be pretended they 
had any greater Estate or Interest At least for my Part I cannot 
perceive the least Colour to give them any Thing more And 
then certainly [219] 2. The Rem'r limited to their Children 
after their Death is good. There is only personal Estate men- 
tioned in the Devise however it will hardly be disputed but that 
the Slaves pass by such Devise because at that Time they were no 
more than personal Estate. The Question then is whether the 
Rem'r of a Chattel personal may be limited after the Death of 
one or more Persons And surely it will not be denied that it may 
It was indeed formerly a Question tho' it was allowed that the 
Use might be given to one for Life with RemV overw'ch seems 
to be our Case But now no Difference is made between a 
Devise for Life & a Devise of the Use for Life As the Testator's 
Intention is the same in both Cases To serve that Intent the 
Judges will construe the Devise for Life to be only of the Use 
And then the Rem'r over is good These sort of Devises were 
first introduced in Terms for Years and settled in Matthew 
Mannings Case 8. Rep. 94. b. under the. name of Executory 
Devises & afterwards in Lampets Case 10. Rep. 47. b. and are 
now extended equally to Chatties meerly personal provided the 
Limitation be appointed to arise within the Compass of a Life 
or Lives in being And it makes no Difference be the Lives never 
so many for there must be a Survivor And so it is only the Life 
of that Survivor And as a Learned Judge used to say the Candles 
are all lighted at once 1. Sid. 451. 1 Sal. 229. The Cases upon 
this Head are very numerous I shall only mention a few 

Wood vs Sanders 1 Ch. Ca. 131. & cited in D. of Norfolks 
Case 3 Ch. Ca. 35. was a Devise to the Father for 60 years if 
he so long live Then to the Mother for 60 years if she so long live 
Then to John & his Extors if. he survive his Father & Mother 
If he died in their Life time having Issue then to his Issue But 
if he died without Issue living the Father or Mother Then to 
Edward John died without Issue in the Life of his Father & 
Mother And adjudged that the Rem*r was good Here the Rem'r 
was not to take Effect till after the Death of 3 Persons & the 
Contingency of one dying without Issue in the Life of another 
Which is stronger than our Case 

Sed Vide Talbot 21. 



\^^^ VIRGINIA COLONL\L DECISIOXS 

S~:h IS Cever 2 Verc- 3S. 5d». Tbe Tester dirwrtei the 
Res: due of his Estate to be rtit tc Interest i half the Interest 
pail to nis Miter during ner Lire Jt tn-e :tner r.a.: m ner Daughter 
& after the Mothers Death the Daughter to have all the Interest 
durinz her Life And if she died with:t:t Isstie :f her B^dv de- 
^"ised the principal orer The DauV die^i withz'ut Issue & the 
Rem'r over adjudged good 5o In Rachels Case cited in that supra 
a E)e\-i5e was to the Wife for Life And if she were with Child 
Then to that Child And if that Child died withint Issue Rem'r 
over which Rem'r was adj'd good 

In both these Cases the Limitation is after two Lives & a 
Contingency of dying without Issue 

Clargis vs D — ss of Albemarle Devise of Jewels for Life Rem'r 
\22S)\ over 2 Vem. 245 & Hyde & Parrot 3:31. S. P. So Pinbur>- 
& EI kin 75S. & 760. De\*ise to Wife And if she died without 
Issue by Testor y^)£. to remain over And Rem'r good And the 
like Point adj'd in this Court April 1734 — between Lightfoot & 
Light foot where the Rem'r was limited uf>on a double Contin- 
gency of djTng without Issue male Or if there should be any 
allure in the Male Line 

For further Authoritys see FitzGibb. 314. Goldsmiths Comp. 
ag't Hall 

But this Rem'r is made good by the express Provision of our 
Act of 1727. w*ch is that where any Person before the Act had 
by Will disposed of any Slaves for Life or Lives & thereupon 
limited any RemV Such Rem'r shall be good w'ch is exactly 
our Case. 

Vide antea. 70. 

3. Whether the Devise to John Metcalf & the Children that 
Ann Metcalf should have of a Xegro Child apiece as the Negro 
W^omen sho'd bear them be a good Devise And I conceive not 
A Devise may be to a Person not in esse but I never yet read that 
a Thing not in esse could be bequeathed [It may be by the Civil 
Law 2. Dom. 159. It is a known Rule that a bare Possibility 
cannot be devised. So is the Case of Bishop & Fountain 3 Lev. 
427. (a) which was a Rem'r limited after an Estate tail I know 

(a) See Jacobs Dictionary Title — Possibility- 

of nothing in our Law so nearly resembling this Case as that 
I have mentioned of Possibilitys Cases in Point cannot be ex- 
pected there being no Slaves in England. The Case of Villains 
comes the nearest to Slaves but I find nothing concerning them 



BARRADALL'S REPORTS B237 

as to this Matter It is certainly no more than a Possibility 
whether a Woman shall have a Child And therefore I think the 
Devise of a Child that shall be afterwards bom is not good Slaves 
are to be considered in this Respect as Chatties & were really 
nothing more at the Time of this Devise Now I believe the 
Devise of a Calf Colt &c. that should be bom afterwards wo'd 
not be good Besides it would be very inconvenient to allow 
of such Devises The Owner of the Mother we may suppose 
wo'd not be very careful either of the Mother in her Pregnancy 
or of the Child after it was bom & some time it must remain 
with its Mother And this might occasion the Loss of many an 
Infant which is certainly a humane Consideration Besides the 
Owner of the Mother must be both at Charge & Trouble which 
seems unreasonable where he is to have no Benefit The Children 
therefore ought to follow the Property of the Mother And espe- 
cially in this Case where neither Person nor Thing was in Esse 
at the Time of the Devise. If it be sayed that the Intention of the 
Testator must be observed I agree it that is where his Intention 
is consistent with the Rule [221] of Law No Intention of a 
Testator is suffic't to intail a Chattle because it is against a Rule 
of Law And so here it is ag't a Rule of Law that a Possibility 
should be devised But if this Devise sho'd be allowed Then 
there remains another Question 

4. Whether the Children of A. Metcalf by her 2. Husband 
Barrow be intitled to a Child apiece by this Devise The Words 
of the Will are these ** I give unto my Daughter Ann's Children 

that she shall bear hereafter one Negro Child apiece as it shall 

please God the Women shall bear them " If we went no 
further & considered the Case upon this Part of the Clause by 
itself it would be clear the Children by Barrow would be intitled 
But the Intention of a Testator must be collected from the whole 
Will And therefore when we consider the Scope of this before us 
& particularly what immediately follows the Devise above in 
the very same Clause it will be evident the Tester intended only 
Ann's Children by Metcalf What foil, is ** Further it is my 
Will that if any of these Children prove disobed't to them that 
the said R. M. & Ann his Wife do keep them until they shall 
submit themselves in Obedience to their Parents " The whole 
Clause runs thus — 

After reading it there will need little Comment to prove that 
the Children here meant are the Children of R. & A. M. & no 



it 

41 



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thrr 5 i R. ic A. i: 5LiZ k-7 E-re Tbf- is 

r ^ * f -»■£, • » ' <i •" i-*~ ** • •■ zr^'^ ■^ m' --" ~- • •'.■5. jS-«c* ~ ^ c "" ~ ■* "•■'■•■T&*'" *■ W J%r 

^ . A.K M. , *.^ 2L ^^ ^. ^ .'- 5 — « ^'-^C -. '^ M. "T^ - _ - 2--_ - _. — _Ctw . IS.- uL 

xi'iA'.ar.-: r>:r^-j=^ Riir-ari rr.-r: le rrr: ira:: re:: re sre cr-^d 

Ca^v: I *r.!r.k n^thinz can re rl-^iner Ii is further evident 
frorr. *h*: v/r.',!e Scm^ of this Will that the T€"St:r hai in View 
t!v: Prov'^hng for Ann's Children \Ly R. M. ctily It is more 
than ^ror>»ar>.>: he had not under Ccns. what afterwards hai:>i:en*d 
that R, M, wo^:ld die f.rst & Ann [222] marry a 2. Husband. 
Sm^:/: there is t.^jX the least Notice taken of that or of the Children 
of s'jch 2. Marr. thro' the whole Will The Rem'r of the p-ersonal 
iW.H*/: is 1 incited to the Children of R. & A.Metcalf And no other 
Children are named or I dare sav intended bv the Test or If it be 
fAty-cuA that the Children of the 2. Marr. are as nearly related to 
the T'-stor & it was as reasonable he sho'd pro\'ide for them as 
the other I answer Perhaps he would have done so Could he 
have forevren there would have been such Children But as I 
have sayed he had no such Thing in View or under Cons. He 
nevrrr thouj(ht of such 2. Marr. And as to any Equity that may 
be pretended in construing the Will in FavV of the Children 
of the 2. Marr. There is no Equity in construing a Will ag't the 
ph'iin Intent & Meaning of a Testator. Such a Latitude in 
constructing Wills would subvert that Right men naturally 
havrj to disj;ose of their own A Man is not bound to give his 



BARRADALL'S REPORTS B239 

Estate in the most reasonable & equitable Manner but his Will 
is the Law as to that The Question is not what the Testor 
ought to have done but what he has done So here the Question 
is not whether the Children of the 2. Marr. ought not in Equity 
to have a Part of their Grandfathers Estate but whether the 
Grandfather has given them any by his Will And that I conceive 
clearly he has not He never so much as thought of them 

Upon the whole I hope it appears that Rich'd & A. Metcalf 
had only the Use of the Slaves & personal Estate during Life 
And that the Rem'r to their Children after their Deaths is good. 
That the the Devise of the Negro Children not born is void 
Or if it be not that the Children of Ann by her 2. Husband Bar- 
row can claim nothing by that Devise And so I pray a Decree 
that the Slaves & personal Estate of the Testor now in being 
may be deliv'd up to the Pit to be divided pursuant to his Will 

In this Case it was agreed that the Rem'r to the Children 
of Rich'd & Ann Metcalf was good And that the Devise of the 
Negro Children not in Esse at the Testors Death was void And 
so the Court decreed an Acco't of the Slaves & personal Estate 
in Order to have them divided pursuant to Stones Will. 

October 1736. 

[223] APRIL COURT MDCCXXXVII. 

CoRBiN ag't Chew's Adm'rs. In Debt on Bond ante 146. 

Upon the Special Verdict there are two Questions 1. Whether 
the Defts. paying Judgments upon simple Contract obtained 
after full notice of this Action be a Devastavit 2. Whether an 
Ex'r may retain a Debt by simple Contract ag't a Bond Creditor 
1. I agree that if an Exec'r pays a Debt by simple Contract (i.e. 
without Specialty) voluntarily without Coersion of Suit before 
a Debt by Bond or other Specialty whereof he has Notice it is 
a Devastavit But I apprehend it is not so to satisfie a Judg- 
ment obtained on such simple Contract even tho' an Action is 
brought & the Ex'r has full Notice of a Debt by Specialty before 
such Judgment is had as was the Case here 

It is true the Law has instituted a certain Method or Order 
to be observed by Ex'rs in the Paiment of Debts which is as 
follows 1. He is to pay Debts of or upon Record 2. Debts 
by Specialty 3. Those without Specialty Curs. Wentw. 131. 



E24-'. v:rg::::a colonial decisioxs 

\':.^, Ei'r -s V.-ni t.o saiisi-e: thai J-nfzirent hefire any :ther 
I^i:'.': of trjK: Testators Ex:^::: I>ri*^ -f Rtvxri If i: be zc'-ecied 
that TrL^e an Exr has Xotice •:: Debts lt Sz«ecialtv be inav 

• V^,-£, *'jL-.V»- •«. r{'>*' A •- -4 »• V.^ TK""" •• - » -*• -i ^»c <~ ' A ■! Ki~"^ T 

ar_i7.'^r that :t is true an Ex'r mav ;;!ead such Dehts bv Sr«ecialtv 
:r. Bar to an Action on simple Ctntract if he pleases But I ap- 
j.r'rr.-en-i he is not botmd to dt s.o 

In the Paiment of a Testators Debts the Law has left many 
T:.:n^'s to the G^nscience & Discretion of the Ex'r who may 
la'At'ur.y prefer one Cred'r to another as Charity or other eqtd- 
taole Motive ilay induce In Debts of equal Digiuty before 
Action brought It is commonly known that an Ex'r may 
prefer which Cred'r he pleases 5o where an Action is brought 
and p^rAir,^ that another is commenced the Ex'r may lawfully 
give Way to & corJess this last Action & the Judgm't shall be 
a g-'xxl Bar to the first if there be no Covin as appears by Doct. & 
Stud. 157. Curs. Wentw. 144. Mo. 67S- Scarles Case & Cro. Eliz. 
(402.; Green a Wilcox And no Difference appears by these Books 
where the first Action is for a Debt by Specialty & the last for a 
Debt without Specialty But Keil. 74. is more express that when 
a Judgment is given ag't Ex'rs such Recovery is a good Plea to 
all other Actions And so I understand the Book Case 9. E. 4. 12. 
there cited Ex'rs were sued and pending that Auction a Stranger 
recovered in another Action and adjudged a good Plea Edgcomb 
a Dee Vaugh. 95. is an Authority in Point that a Judgment 
[224] obtained upon a simple Contract pending a former Action 
brought on an Obligation is a good Bar to such Action Con- 
sequently to satisfie such a Judgment can be no Devastavit 
which is the Question now before us 

From all these Cases I hope it is clear that the Order to be 
observed by Ex'rs in the Paiment of Debts can refer only to such 
Paiments as are made without Coersion of Suit But where 
Actions are brought he that first gets Judgm't must be first 
satisfied Curs. Wentw. 144. And in this as has been sayed the 
Ex'r may lawfully shew Fav'r by confessing one Action & delay- 
ing the other And it is very equitable & convenient that such a 
Power should reside in the Ex'r Since there is certainly no natural 



BARRADALL'S REPORTS B241 

Difference between a Debt by Specialty & a Debt without but 
there may & often is more Justice & commonly more Charity 
to satisfie a Debt of the latter Sort at her than the former The 
principal Reason why the Law gives the Preference to the 
former is that the Writing makes the Debt more clear & certain 
but when there is a Judgment for a Debt without Wring [sic] 
That is then become as certain And therefore no Reason after 
Judgment that one should be preferred to the other. 

It was an Opinion of old that an Action would not lie ag't 
an Ex'r upon simple Contract And upon this probably was 
founded the Difference the Law has made between Debts of that 
sort & Debts by Specialty because it might seem unreasonable that 
an Ex'r should have the Liberty of paying Debts to which he 
was not bound before Debts he was bound to pay This old 
Rule of Law having no Foundation in Reason or Justice has been 
long since exploded or rather a Way has been invented to elude 
it by turning Actions of Debt upon simple Contract into Actions 
upon the Case upon a Promise implied by Law as was settled 
about 150 Years ago in Slades Case 4. Co. 92. So that Ex'rs 
being now liable to Actions for Debts of this sort No Kind of 
Reason remains why Debts by Specialty should have the Pref- 
erence after there is a Judgment for the other Courts of Equity 
in Cases properly under their Direction make no Difference at 
all between one Sort of Debt & the other If Lands are devised 
to Trustees to be sold for Paiment of Debts Creditors by simple 
Contract shall be let in equally with Cred'rs by Specialty & they 
shall be all paid in equal Proportion 2 Ch. Ca. 54. 1. — Vem. 
63. 2. Vern. 405. (But note if the Devise be to Ex*rs to pay 
Debts the Land is legal Assets and Debts must be paid according 
to their priority at Law) And the Reason is because there is no 
natural Difference between one Sort of Debt & the other as has 
been already observed And therefore Equity will make none I 
[225] hope therefore as the Difference is meerly artificial in- 
troduced upon Reasons that now no longer subsist especially 
after a Judgment this Point will be carried no further than there 
are clear Authoritys for And I am much mistaken if any Case 
can be shewn where it is expressly & in Point adjudged to be 
a Devastavit in an Ex'r to pay a Judgment obtained on a Debt 
by Simple Contract before a Bond Debt of which he had Notice 
whereas I take 9. E. 4. 12. Keilw. 74. & Vaugh. 95. to be affirma- 
tive Resolutions for me And consequently are more cogent & 



:S -ST 11:1 ^T-:-T r.tlinz c-t ry Way 



• -,— -• 



of IrJrTr-:^ 

2. TTb-rtZfrr an Exr zlij rrtjjn a Z'^zZi ij Si=:^> Ccntract 
az : a 3 :ni Cr^'r I* is a Zt-. R-jI-e zz^z an Ex'r tnay rtiain to 
satis r.'T a I>r'::t iur *: hinsclf 3nz z'zis s^ys T^'enririrtb in his 
0:r.;*r :■: Exrimiir 141. is zz re :ii:iem:«:«i wbene ihe Exec'rs 
Debt i5 of e^nal Diznity with th-e Crei'::s .\ni trtits a Case that 
the Te5tat::rr is izirtt-r-i t: :the s zj jni^tnen: Statute or 
Rec'^^tiisarLze ani t: the Exr<:"r ty3:n£ There he cannzt retain 
I shall n^t ienv WentTrinh's C^mirn tz he Law in the Case 
put But I appreheni a great Lhrer^nci? hersreen that Case & 
ours where the Crei'rs I>ebt is hy B:ni & the Ex'rs by simple 
Contract Jni^m'ts Stattites Reo: ^tnsances an? all Debts of 
Record Of which the Exr is at his ceril t j take X:tice without 
Information of the Creir 21. E. 4. 21. b. 2. Vem. S9.{Vide 2. 
And. 150. 1 Mod. 175. & 3 M>i- 115. and jujr^e And therefore 
if Judgm't be had ag't him upon a B^nd & he satisnes it before 
he knows of these Debts by RecDrd it is a Devasta\'it and he 
must pay the Money again out of his own Pc<:ket So that an 
Ex*r cannot under any Circumstance pay a Bond Debt before 
a Debt by Judgment &c. But the Law is not so with Respect 
to Debts by Specialty & those without for an Ex'r may lawfully 
pay these latter even without Judgm't before he has Notice of 
Debts by Specialty 3 Lev. 113. FitzGib. 77. 7S. And even after 
Notice which must always be by Action he may give Way to a 
Judgment for a Debt by Simple Contract tho' the Action on the 
Specialty be first commenced as I hope has been demonstrated 

Allowing then Went worths Opinion to be Law which however 
I don't find is supported by any Authority before or since he 
wrote I conceive it is nothing to the present Question Nor have 
I met with one judicial Resolution in the Point The Matter 
then I presume must be determined upon the Reason of the 
Thing & the Rule of Equity & Natural Justice And if so I hope 
clfjarly to demonstrate that the Exec'r in this Case ought to 
retain 

It is absurd to suppose that the Law gives a Man Power to do 
a greater Benefit to another than to himself Yet such will be the 
Consequence if the Ex'r may not retain in this Case For im- 
mcdiatfily upon the Testators Death he may pay a CredV by 
[220] simple Contract without Action & before a CredV by 
Specialty can possibly bring an Action And such Paiment is 



BARRADALL'S REPORTS B243 

undoubtedly good ag't any Debt by Specialty So where an 
Action is brought on a Specialty And afterwards another is 
brought on a simple Contract the Ex'r may confess this last & 
it shall be a good Bar to the first as has been shewn Now shall 
an Ex'r have it in his Power to do thus much for another And 
yet have no Remedy himself in the like Case Surely no but 
as he can neither sue himself nor pay himself the Law must 
give him an adequate Remedy that is by suffering him to retain 
Otherwise his Extorship will put him in a worse State than 
another Cred'r whereas the Rule of the Law is In equali jure 
tneltor est conditio possidentis Where the Right is equal Pos- 
session puts a Man in the better Condon Now it must be allowed 
that the Right between an Ex'r & Cred'r where both Debts are 
by simple Contract is equal Yet the Ex'r may satisfie the Cred'r 
but not himself This is surely a strange Way of reasoning It 
actually inverts the Rule of Law (just now mentioned) for the 
Ex'rs Possion puts him in a worse State instead of a better 
He shall be without a Possibility of obtaining his Debt while 
another Cred'r can easily get his especially with the Ex'rs Favour 
which he may lawfully shew I must submit whether this be not 
ag't Sense & Reason It has already been observed that there 
is no natural Difference between Debts by Specialty & Debts by 
Simple Contract And that Courts of Equity make none Since 
then the Law is silent as to the Matter now before us I hope 
the Rule of Equity will be no bad one to follow Especially when 
the contrary Determination will be attended with so much 
Hardship upon the Ex'r whom the Law intends to favour as 
much as possible And will clash with a Rule of Law first intro- 
duced in Favour of Ex'rs 

E contra were cited 1. Mod. 175. 1 Sid. 21. 230. 3 Mod. 115. 
Cumb. 318. FitzG. 77. & Dr. & Stud't 157. to the 1. Point See also 
[sic] 

Neidler Con't 17. 

To the 2 Point were cited Went. 141. 3 Lev. 355. Lex Test. 180 
And Judgment for the Pit. April 1737. 

[227] Hawkins vs Thornton. Ejectmt. 

Thos. Hawkins seised in Fee by his Will Feb. 8. 1675. devises 
thus: ** I give all my Lands equally to be divided between 



B244 VIRGINIA COLONIAL DECISIONS 

'* my two Sons Thomas & John & their Heirs lawfully begotten 
** forever But in Case my Wife be with Child of a Son Then I 
'* give him an equal Part of all my Lands And if any of them 
*' should happen to die before they come of Age the Land still to 
** fall to the surviving Sons or Son And if they all die Then to 
'* my Daughters &c. to be equally divided between them & the 
** Heirs of their Bodies lawfully begotten forever There was 
no after bom Child Thomas the Son died under Age & without 
Issue John the surviving Son entered into the whole & sold to the 
Deft. The Lessor of the Pit. is Heir of the Body of John The 
Question is Whether the Testator's Sons took an Estate tail or 
a Fee simple by the Devise to them If an Estate tail the Lessor 
of the Pit. is Heir in tail & has a good Title 

It must be my Task to endeavour to shew that the Testator 
intended an Estate tail to his Sons & not a Fee simple I will 
beg leave to premise that there is a great Difference between 
Deeds & Wills in the Construction & Exposition of them The 
same Words will not have the like Operation or Effect in the 
one as in the other In Deeds the Wisdom of the Law has appro- 
priated certain peculiar Words as Terms of Art not to be supplied 
by any other & without which an Estate of Inheritance cannot 
pass or be created as the Word (Heirs) is absolutely necessary 
to create a Fee simple And (Heirs of the Body) a Fee tail tho* 
these Words (of the Body) may be supplied by other Words 
ex vi termini importing as much Nor will such Estates pass by 
Deeds without these Words Be the Grantors Intent & Meaning 
never so plain But in Wills the Law is not so strict a greater 
Latitude is allowed & a more liberal Construction made of them 
The Intention of the Testator is the Rule & Law to govern the 
Exposition of them which Intention is to be collected from the 
whole Will And therefore where that is apparent any Estate 
may pass without those Terms of Art or any peculiar Form of 
Words The Reason of this Difference is that a Man may have 
Advice & Assistance in drawing of Deeds And it is his own Folly 
if he has not But Wills are supposed to be & indeed often are 
made in extremis in a Man's last moments when he is destitute 
of Assistance Inops consilii And therefore there is Reason some 
Indulgence should be shown and Construction made according 
to the Intention without Regard to strict & legal Forms In- 
stances of this Sort are frequent in the Books 

A Devise to a Man forever or to one & his Assigns carry a 



BARRADALL'S REPORTS -B245 

Fee simple tho' in a Deed they would give no more than an 
[228] Estate for Life for Want of the Word (Heirs) But be- 
cause the Intention is plain from the Words (for ever) & (assigns) 
that the Testator intended more th^n an Estate for Life & that 
the Devisee should have an absolute Right that Intention 
supplies the Want of formal Words So a Devise to a Man & 
his Heirs male or to one & his Issue or to one & his Heirs And 
if he die without Issue Rem'r over All these make Estates tail 
in a Will tho* the like Words in a Deed would carry a Fee simple 
In the last Instance is observable that tho' a Fee simple would 
pass by the first Part of the Devise by the Word Heirs Yet the 
Testators Intention being collected from the latter Part viz. 
if he die without Issue that the Heirs intended are Heirs of the 
Body the Law which makes Construction upon the whole Will 
adjudges it an Estate tail And so in the Devise now before us 
the same Words in a Deed would carry a Fee simple But here 
in this Will I conceive they make an Estate tail by the plain 
Intention of the Testator w'ch may be collected both from the 
Words he makes Use of in this Devise to his Sons And from other 
Circumstances appearing on the Face of the Will as I shall 
observe presently 1. From the Words of the Devise which are 
" To my Sons & their Heirs lawfully begotten for ever." These 
Words ** lawfully begotten "are quite superfluous & unnecessary 
to create a Fee simple It is reasonable to suppose the Testator 
intended something by them And what could be intend but 
that the Heirs should be begotten by his Sons I will appeal 
to all the World if a Man unskilled in the Law when he speaks 
of his Heirs lawfully begotten does not mean the Heirs begotten 
of his Body And it is a Rule that Words in a Will are to be taken 
in the Sense they are used in common Speech Had the Devise 
been to the Sons & their Heirs lawfully begotten by them it 
had been clearly an Estate tail for Heirs begotten by them must 
be of their Body Here indeed we want these Words of Art (by 
them) and (of their Bodys) but I must submit whether the In- 
tention be not plain to pass an Estate tail And then those words 
may be supplied. (Lawfully begotten Words naturally belong- 
ing to Estates tail Talbot 24.) 

Another Rule of Law in the Construction of Wills is that they 
shall be so construed as to make all the Words have some Effect 
or Operation if it may be But these Words (lawfully begotten) 
can have none at all in this Case if the Devise to the Sons is 



B246 VIRGINIA COLONIAL DECISIONS 

construed to be a Fee Simple I have already observed that a 
Devise to a Man & his Heirs male make an Estate tail 1 Inst. 
27. a. Not from the Force or Operation of the Words [229] 
in Law for in a Deed such Words would carry a Fee simple 
but from the the Intention of the Testator who is supposed to 
mean some thing by the Word Male. And so I say here the 
Testator meant some thing by the Words lawfully begotten 
And I cannot conceive what he could mean unless it was that 
the Heirs should be begotten of his Sons Bodies 

But the Testators Intention to give an Estate tail to his Sons 
may be further collected from the Limitation over in Case his 
Sons died under Age If the Sons take a Fee simple subject 
to the Contingency of living till 2L as I suppose will be contended 
for on the other Side Then the Limitations over which are first 
to the Survivor in Case either Son die under Age And then to the 
Daughters if they both die must be vain and fruitless because 
the surviving Brother would be Heir to the other And so would 
the Sisters to the surviving Brother & take the Lord without 
this Limitation for none of them could alien before they came 
of Age But the Land must of Necessity descend to the next 
Heir Now a Will shall never be so construed as to make any 
Devise vain & fruitless if another Construction can be made that 
will make every Devise have some Effect And the Reason is 
because it cannot be supposed that a Man intends to make a void 
Devise And therefore rather than that shall be Sentences shall be 
transposed & Words made to have a Meaning they are not 
naturally capable of For Instance & to the Purpose now before 
us The Word (Heirs) without any Thing more shall be con- 
strued Heirs of the Body where a Limitation over will be void 
without such Construction As was adjudged in Webb & Herring 
3 Bui. 192. 1 Ro. Abr. 836. Devise to his Son Francis after the 
Death of his Wife And if his 3 Daughters overlive their Mother & 
Francis & his Heirs Then to them for Life with Rem'r over 
The Question was what Estate Francis had and adjudged an 
Estate tail for the Word (Heirs) must be intended Heirs of the 
Body Otherwise the Limitation over to the Daughters would 
be void they being Heirs to their Brother & would have taken the 
Land without the Limitation if the Testator had intended a 
Fee simple And so I say here the surviving Brother would 
be Heir to his Brother & take the Land without the Limitation 
in this Will if the Testator had intended a Fee simple And so 



BARRADALL'S REPORTS B247 

in like Manner would the Daughters from the surviving Son 
And therefore he must intend an Estate tail Or the Limitation 
over is vain and fruitless So 3 Mod. 123. Blaxton & Stone 
A Man having two Sons devises to his eldest And if he dies 
without Heirs Male then to the other Son Adjudged an Estate 
tail in the eldest tho' there wants the Word Body for the Intent 
may be collected that the Testator intended an Estate tail 
because without the Devise over it would have gone to the 
second [230] Son if the eldest had died without Issue 1 Sal. 233. 
Nottingham a Jennings A. having 3 Sons devises to his 2d 
Son & his Heirs for ever And for want of such Heirs Then to his 
own right Heirs Adjudged an Estate tail for Heirs here can im- 
port nothing more than Issue because the Son could not die 
without Heirs living Heirs of the Father See also Talbot 1. All 
which Cases prove that the Word (Heirs) in a Will are often 
construed Heirs of the Body but especially where there is a 
Limitation over that must be vain & idle without such Con- 
struction 

3. The Nature of the Estate given to the Testators Daughters 
in this Will is a further Proof of his Intention in the Devise to 
his Sons He gives them an Estate tail in express Words to 
them & the Heirs of their Bodies And it is very reasonable to 
suppose he intends the like Estate to all his Children Especially 
if we consider that Men are generally more fond of entailing 
Lands in the Male than female Line The Difference of the 
Expression in the two Devises I take to have proceeded from 
the Ignorance of the Writer who I believe was no Lawyer and 
possibly imagined that Heirs lawfully begotten & Heirs of the 
Body had the same Import & Meaning And so indeed they have 
in common Speech in the Understanding of Men unskilled in the 
Law as I have had Occasion already to observe And so this 
Difference of Expression can make none in the Intent w'ch 
upon the whole Will I hope is pretty clear to give an Estate tail 
to all his Children 

The Case most resembling this is Church & Wyat Mo. 637. 

One by Will devises part of his Land to the Child his Wife went 
with & to his or her Heirs lawfully begotten & the Residue he 
devised to a Daughter that was bom To have to her & the 
Fruit of her Body And if she died without Fruit of her Body 
that it should remain to the Child in Ventre sa mere And if both 
died without Fruit then to I. S. And he willed that one should 



Bj4S VIRGIMA COLOXIAL I/ECISIOXS 

be Heir to the other The Questicn was irhat Estate the after- 
?jorr. Ch:>: had and a.ij-iged that the Word Heirs lawfully 
be^'ottec in the Premises and that one sho":ili be Heir to the 
o".h*rr in the End of the Devise maie an Estate tail withotit the 
Word Bodv And this I take to be exactlv our Case the Devise 
is to the Sons & their Heirs lawf'^Hy begotten And M either die 
un^Ier Age the Land still to fall to the Survivor And if both die 
then to the Daughters Which Words I presume will be agreed 
to be of the same Import & Meaning as if he had saved that one 
should be [2-'jI] Heir to the other for so in Effect they are to be 

But it will be objected If this is adjudged an Estate tail 
Then if the Sons had Issue & died before 21. the Issue must be 
disinherited which the Testator could never intend. In Answer 
to this I say that where the Words of a Will are doubtful & will 
admit of two Interpretations that Construction ought to be 
made which is most agreable to Reason & lustice But where 
the Words of a Will are clear & express I apprehend no such 
Latitude is allowed but Construction must be according to the 
Words of the Will tho' it may be attended with a seeming hard- 
ship or Inconvenience In this Case the Words of the Will are 
express that if either Son die under Age the Land shall go to the 
Survivor And therefore tho* it may seem hard that the Issue 
of the Son dying sho*d be disinherited if he had any & died 
before 21 It is the express Will of the Testator & must be sub- 
mitted to 

But with Respect to the Argument now before us there is 
really nothing at all in this Objection for it is equally strong 
whether the Sons take a Fee simple or a Fee tail since in either 
Case the Issue would be disinherited if the Devisee died before 
21. For the Limitation over is not upon dying without Issue or 
under Age but generally upon dying under Age And so 

This Case is nothing like (a) Burgis & Slack w'ch was argued 
in this Court last April That Case was a Devise to a Son & 
Daughter their Heirs & Assigns And in Case of the Mortality 
of either before 21. or Marriage of his Daughter or without 
Issue Then the whole to the Survivor This indeed was 
adjudged a Fee simple subject to to the Contingency of living 
till 21. or having Issue And principally I believe for this 
Reason that if it had been adjudged an Estate tail Then in Case 
the Devisee had died before 21 tho' he left Issue that Issue 

(a) Ante Page 182. 



BARRADALL'S REPpRTS B249 

would be disinherited which it was sayed the Testator could not 
intend However the Court were not unanimous in that Judg- 
ment And there is an Appeal not yet determined 

The Difference between that Case & this has been already 
observed there the Limitation over was upon dying under Age 
or without Issue Here upon d)ring under Age only In that Case 
it was argued to be an Estate tail by Implication only And that 
by Force of the Words dying without Issue for the first Words 
were strong to carry a Fee simple ** to them their Heirs & 
Assigns. Here we say an Estate tail passes by Force [232] of 
the Words in the Devise itself viz Heirs lawfully begotten 
So that the Resolution in that Case will not at all influence 
the Determination of this Upon the whole I hope it is evident 
both from the Words of the Devise And other Circumstances 
in this Will which have been observed that the Testators In- 
tention was to keep his Estate in his Name & Family And that 
it sho*d not be in the Power of his Sons to disinherit their Issue 
And so I pray Judgm't for the Pit. 

For the Deft. It was sayed the Word Body or something tan- 
tamount was necessary to make an Estate tail Co. Lit. Sect. 3L 7. 
Co. 42. That the Stat. De Donis required that voluntas Dona- 
toris should be manifeste expressa And here the Testators Inten- 
tion to give an Estate tail was far from being plain or manifest 
That the Words, lawfully begotten, were of no Signification nor 
Operation in Law for every Heir must be lawfully begotten The 
Case of Church & Wiat Mo. 637. proves that those Words alone 
would not make an Estate tail without the Assistance of the 
latter Clause ** That one should be Heir to the other '* And there 
was a further Reason for that Judgment viz the Rem'r over if 
both died without Fruit &c. Which is afterwards mentioned 
by the Reporter to make an Estate tail tho* not sayed to be a 
Reason for the Judgm't. So that upon the Matter that Case 
was an Authority ag't the Pit. There is no Case in the Books 
where the Words ** lawfully begotten " are adjudged to make 
an Estate tail. Vid. Prec. Chanc. 131, 132. 

That the Cases cited for the Pit. to prove the Word Heirs 
in a Will is often construed Heirs of the Body are nothing to this 
Case For in all of them there is a Rem'r over on dying without 
Heir or without Issue. But here the Limitation over was upon 
Dying before 21. which is very different The Testator intended 
no more than to limit the Estate over in Case of that Contingency 



B250 VIRGINIA COLONIAL DECISIONS 

And if the first Words did not make an Estate tail as they cer- 
tainly did not , The Limitation over signified nothing at all But the 
Sons took a Fee simple subject to the Contingency of living till 21. 
That the Limitation of an Estate tail to the Daughters was 
so far from being an Argument that the same Estate was in- 
tended to the Sons that it was a strong Argimient to the con- 
trary For it is reasonable to presume the 

N. B. (Continued on page 357 two leaves missing here.) 

[357] Hawkins & Thornton continued from page 232. 

The Testator knew the different Import and Meaning of the 
Words Heirs of the Body lawfully begotten and Heirs lawfully 
begotten especially as he uses the Words lawfully begotten in 
both Places And the Difference of the Expression if it proves 
any Thing proves a Difference in the Intent And there may 
be a good Reason Why he sho'd rather intail his Lands on his 
Daughters than his Sons viz. That it should not be in the Power 
of a Husband to prevail on them to disinherit their Issue 

The Argument drawn from the Limitation over being to the 
Person who would have been Heir to the first Devisee is fallacious 
as well as from the Purpose For in the event there were but 
two Sons if the Wife had been ensient of another he would have 
taken with the survivor of the other two and so the Disposition 
is different from what the Law would make and the Rem'r over 
not useless. 

It was insisted that Heirs were to be favoured especially in 
doubtful Cases and the foil. Books cited Poll. 426. Meynell and 
Read. That words incertain (as lawfully begotten were) ought 
to be rejected 6 Co. 16. Wild*s Case. Cro. Eliz 472. and the Case 
of Burgis and Hack was also relied on. 

April 1737. Judgment for the Pit. that it was an Estate tail 
by the Opin. of Lee, Lightfoot, Tayloe, Randolph, Custis, 
Grymes, Carter and Digges. Robinson, Byrd, Blair and the 
Governor con. Q.i 

B. The Arguments that seemed to prevail most were the vulgar 
acceptation of the Words (lawfully begotten) and the Limitation 
over being to the next Heir Vide 2. Lev. 162. Tilly and Collier. 

Vide ante 249. 

Hark back to p. 237. These three pages following were omitted in their proper 
place. W. W. S. 

'I take this to be a "Q" but it is obscure. W. W. S. 



BARRADALL'S REPORTS B251 

[358] Slaughter ag't Whitelock. 

Martin Slaughter by his Will Aug. 23. 1732. devises four 
negroes to his Son George (the Pit.) and the lawful Issue of his 
body for ever and four negroes to his daughter Judith and the 
lawful Issue of her body for ever but if either my son or daughter 
shall die without such Issue the survivor to have an enjoy the 
said Slaves and their Increase Judith was possessed of the 
Slaves devised to her married the Deft, and died without Issue 
The Question is whether the Limitation over to the Survivor 
who is George (the Pit.) be good. 

I shall agree that Slaves here are to be considered meerly as 
Chattels It was a great while before Limitations over of 
Chattels were allowed for the Rule of Law was that the Gift 
of a personal Chattel for an hour is a Gift forever However 
the Use of a Chattel might be limited to one and the Rem*r 
to another and this was always allowed But about the Begin- 
ning of King James 1. the Law began to be altered and in Devises 
of Terms for Years which are Chattels real the Judges would 
allow of a Rem'r over after a Devise for Life This was first 
settled in Matthew Manning's Case 8 Rep. 94. b. and afterwards 
in Lampet's Case 10 Rep. 47. b. and was introduced under the 
name of Executory Devises It was longer before the Judges 
would admit of such a Rem'r of Chattels personal but after the 
Restoration when personal Chattels began to grow large such 
limitations of Chattels meerly personal began to be allowed upon 
a Distinction that at one [sic] preserved the old Rule of Law 
sacred and inviolate and at the same Time satisfied the Intention 
of the Testator For in Case of a Devise for Life with Rem'r 
over to another the Judges construed the first Devise to be only 
of the Use and then the Rem'r over stood well with the Rule 
of Law I first mentioned So that now it is no longer a Question 
but that such a Limitation may be both of Chattels Real and 
Personal provided the Contingency upon which these Limita- 
tions are to take place be appointed to arise within a reasonable 
number of Years or within the Compas of a Life or Lives in being. 
And this is as far as the Law will admit of such Limitations over 
of Chattels. 

I shall proceed now to consider whether the Devise before 
us will come within this Rule. The Devise is in short to two 
and the Issue of their bodies and if either die without Issue 



B252 VIRGIXIA COLOXIAL DECISIONS 

Rem'r to the Surriv'r It will be saved I Drestime that here 
are worcs to make aa Estate-tail '->>y' that a chattle can't be 
intailed acd so the ab'S.clute Property vested in the nrst devisee 
and the Rem'r over Ls repiLgnant ani void I shall agree that if 
the subject of this De\-ise was a real Estate these Words would 
carrv an Estate-tail for the Word Issue in a Will is of the same 
Import as Heirs of the Bc-iy but I conceive there is a great 
Difterence Where the Subject of the Devise is a real Estate and 
where it is a personal Estate for in the last case the Word Issue 
has not the same Construction as in the nrst A Devise of Land 
to one for Life and if he die without Issue Rem'r over gives an 
Estate-tail by Implication ani Construction of the Testator's 
Intention that the Rem'r over s'nould not take Place till the first 
Devisee was dead without Issue But in such a Devise of a 
Chattle I conceive the 1 De\'isee has onlv the Use and the Estate 
shall not be enlarged by implication it being contrary* to the 
Nature of the Thing given to be intailed And therefore the 
same Construction is not made as in the other Case but dying 
without Issue is taken to be a Contingency which being re- 
strained to the time of the Devisc-e's Death falls within the 
Common Rule of a Limitation upon a Contingenc)' to happen 
within the Compas of a Life Issue ex vi termini does not import 
Heirs of the Body 

The Limitation in this Case is " If either die without Issue 
then to the Sur\'ivor " Here if the djnng without Issue is taken 
generally whenever there shall be a failure of Issue the Limita- 
tion over cannot be good because that will tend to a Perpetuity 
which the Law abhors and is the true Reason why Limitations 
over of personal Things are restrained. But I conceive the Testa- 
tor meant no more than this that if there was no Issue living at 
the Death of the Son or Daughter first dying that then the Slaves 
should go to the Survivor. The Words of a Will are to be taken 
as they are understood in Common Speech. Now among the 
vulgar a man is sayed to be dead without Issue if he leaves no 
Children at his Death Issue and Children are words sinonimous 
in Common parlance. 

Smith and Clever 2 Vem. 38. 59. The Interest of a sima of 
money was devised* to one for Life and if he died without Issue 
the Principal to go over and the Rem'r held good for to serve 
the Intention of the Party and support the Rem'r the dying 
without Issue was applied to the Time of the Death of the 1 



BARRADALL'S REPORTS B253 

Devisee. Pinbury and Elkin 2 Vern. 758. 766. Prec. Cha. 484. 
Devise to his Wife provided if she died without Issue then 80;^. 
to remain to his Brother after her Decease and the Rem'r held 
good for the d)ring without Issue must be understood leaving 
Issue at her Death and it cannot be supposed the Testator in- 
tended his Brother should have it if Issue failed 100 years after 
[360] Target and Grant Ch. Ca. Abr. 193. and cited Fitzg. 317. 
A Term was devised to One during his Infancy and if he attained 
his Age of 21 years then to him far Life and to such of his children 
as he should leave it to and if he should die without Issue then 
limits it over which was held good for the dying without Issue 
was restrained to the Time of the Death of the 1 Devisee 
Forth and Chapman cited Fitzg. 317. and Rep. 1 Will. 663. 
Devise of a real and personal Estate to A. for so much of it and 
for the rest to B. and if either depart this Life leaving no Issue 
then to such a one Which Limitation as to the personal Estate 
was held good leaving no Issue importing a dying without Issue 
at his Death See Hughs and Sayer Maddox and Stains cited 
Fitzg. 318. • 

All which Cases prove that dying without Issue have a different 
Import and Construction as the Subject is a real or personal 
Estate for in all the cases above cited they would have been 
taken as an Increase of Interest and made an Estate-tail if the 
Devise had been of a real Estate but being of a personal Estate 
they are construed to be Words of Contingency only Upon 
the Reason and Authority of these Cases I presume the De- 
termination of this Court was grounded in the Case of Lightfoot 
and Lightfoot heard in this Court April 1734. which was thus 
The Testator devised as follows I give all the Rem'r of my Estate 
real and personal to my son Francis and his Heirs male of his 
Body and if he die without such Issue Male or if there be any 
Failure hereafter in the Male Line then I give the same to my 
Brother and adjudged that the Rem'r over of the personal 
Estate was good tho' limited upon a double contingency and 
tho' the Words undoubtedly gave an Estate tail to the Son in the 
Lands And this I think a much stronger Case than ours. 

But there is still something further in this Devise that plainly 
shews the Testator did not intend the Rem'r over sho'd take 
Place upon a dying without Issue generally but the Words 
do obviously restrain the Contingency to the Compas of a Life 
and that by limiting the Rem'r to the Survivor ** In Case 






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n^.r^ -.-^.r- :: z-A ^'-'ir t-.-ji jr.r:=i r? "tr An t^.> j^en r t_ 

J'-'i'* :r. 'r.-T L::* tine :f '^•r .i t^^ z-tli X-«i«i >- — 

L-ar-.?. i Aril'-rr I SjJ -L^T Ze-^-fe :: i Trm t: A & the 
Hrirt '.: h:= B^v:— A- f :f h-r li^ irr'' ut I>5:i-r Iz'-^nz 3 Then 
V, ri *.i:» i^irr.it^t:'.:! h-r.i Z'*-*i wtriiiz -t«:~ 2. C rtitinz^^^^^y *"^ 
':.>,', ',^. T:th:r. tr.e C^nca^s :: i Liff \'LU 2 Vem >r^. lol. 

- . .-*^ .. M^ • ...^ f . .^. . ^ . 1.S5 —•s in rz l-^*r -. ^rz _ - .*-C ^1*^ \ i » * 1 **tr 

V-^:.7 ^vv*rr :% i'^^oi either Wav An: t'::h the Ccntirzencies 
r.;iv*- ':.'<y.,*'Z.^A Ani cr.e cf th-rse C:n5trt::t:':ns cught to be made 
*l:/i th'; V/or^;* r.f tr.e Will -srere net sc iilain as I conceive thev 
;»r': Ar.^i that to S'Jt.t.ort the Retn'r over which otherwise must 
\a\ \'f/A It o^'i'ht never to te st:::n':sed that a Man intends a 
v;;;r. V/i^l Devise if anv other Construction can be made And the 
P il'- of Lav/ is to consume a Will so as to make all the Parts 
of \y *X'4vzA if it may be which in this Case can onlv be bv the 



BARRADALL'S REPORTS ' B255 

Construction I contend for And this will offer no Violence to the 
Words but rather preserve the plain Intention of the Testator 
"by supporting the whole Will For I must submit whether it be 
not more reasonable to suppose that the Testator intended the 
Rem'r should take Place in Case fhe Devisee left no Issue at 
his Death living the Survivor than upon so remote a Contingency 
as a Failure of Issue 100 or 500 Years after I conceive the Word 
Survivor plainly restrains it to the first 

There is a Case in FitzG. 314. The Goldsmiths Company ag*t 
Hall that I suppose will be much relied on but when it comes to 
be considered will appear to differ much from this The Devise 
was thus ** I give & bequeath all my real & personal Estate unto 
'* my Son Fr. H. & to the Heirs of his Body to his & their Use 
** And if my said Son shall die leaving no Heirs of his Body 
** living Then I give & bequeath so much of my said real & 
** personal Estate as my said Son shall be possessed of at his 
** Death to the Goldsmiths Company** In this Case it was the 
Opinion of my Lord Chancellor that the absolute Property of the 
personal Estate passed to the Son And that the Limitation over 
was void But the principal Reason was this Because the Com- 
pany was [238] to have no more than the Son should have left 
unspent And so he had a Power to dispose of the whole & con- 
sequently the absolute Ownership passed There is another 
Reason indeed given which is that Words which give an Estate 
tail in the Land must transfer the entire Property of the personal 
Estate But that can weigh nothing in the present Case where 
the Devise is merely of Chatties And I have before observed 
the Difference there is where the Subject of the Devise is of a 
real Estate & where it is of an Estate personal In the Case 
of Lamb & Archer supra the Devise was to A. & the Heirs of his 
Body which would be clearly an Estate tail in the Case of 
Lands And yet there the Limitation over was adjudged good So 
in the D. of Norfolk's Case the Term was limited to the 2d Son & 
the Heirs male of his Body & yet the Rem'r over held good 
Which Cases prove the Difference where the Subject is a real 
Estate & where a personal Estate Here we are in the Case of a 
personal Estate It is repugnant to the Nature of it to be intailed 
And therefore ought not to be supposed that the Testor intended 
so if another Construction can be made. 

Acril for the Deft. If we were in a Case of Lands the first Part 
of the Devise would create an Estate tail without all Question & 



B2o6 VIRGINIA COLONIAL DECISIONS 

would need no Assistance from the subsequent Clause to make 
it so by Implication. And it is a Rule that Words in a Will 
creating an Estate tail in Lands cany the absolute Property 
in personal Things In all the Cases cited con. the first Devise 
was only for Life which to 'support the Testors Intention was 
construed to pass only the Use And that the express Gift 
should not be construed to be enlarged by any subsequent Words 
As D>'ing without Issue or the like as it would in Case of a Devise 
of Lands. But where the absolute Property is once given as in 
this Case. The same Thing cannot be given over. He cited 1 
Ch. Ca. 129. 1 Vem. 35. 326. 2 Vem. 255, 347. 1 Sal. 156. FitzG. 
314. which was much relied on. 

April 1737. Judgment for the Deft, by the whole Court. 

Except Lee & the Governor And I think very rightly — But 
Vid. 1 Will. 534. Hughs a Sayer. Devise of personal Estate to 
A. & B. And upon either of their dying with't Children then to 
the Surv'r Held a good Lim over. 

See also 'Pinbury & Elkin 2 Vem. 758. Prec. Cha. 484. And a 
Diff. taken in this last betw. a Devise of a Chattle to one & 
the Heirs of his Body with Rem'r over And a Devise to one 
generally & if he die with*t Issue Rem'r over. 

How far personal Estates may be limitted over Vide Bamer- 
diston Chan. Rep'ts 54. &c.i 

[239] Brooking vs Dudley. Dixon a Brooking & Collier a 
Brooking in 3 Actions of Detinue for Slaves Upon a Special 
Verdict the Case is Judith Whale being possessed of sevl 

Slaves intermarried with Ralph Emery & died in 1724. The 
Pit. Brooking being her Heir at Law after her Death bro't an 
Action of Detinue in this Court ag*t Emery for the Slaves And 
being an Infant one W'm Brooking is named his next Friend 
or prochein Amie in the said Suit In this Action the Pit. had 
Judgment to recover the Slaves or 120;^. the Value in April 1727. 
And upon the Trial the Court gave their Opinion which is entered 
upon Record that the Slaves did not vest in Emery by the 
Marriage At the End of this Judgment there is an odd sort of 
Rule enter'd to this Effect That in Case the Value found by the 
Jury exceeded the Appraisem*t of these Slaves (in K. & Q. 
Court) that the Pit. would release so much as the same exceeded 
And if the Appraisem't was more the Pit. was to have Exon for 

> This line an addendum in a different hand. W. W^. S. 



BARRADALL'S REPORT B257 

so much more Soon after this Judgm't in May 1727. Emery 
sold one of the Slaves to the Deft. Dudley & 2 others to Dixon & 
Collier the Pits, in the other Actions (w'ch are the Slaves in 
Dispute) for as much Money as the Slaves were appraised to & 
paid the Money to Wm. Brooking the Prochein Amie but they 
knew of the Judgment when they purchased. The Pit. Brooking 
was then about 12 Years old & had no Guardian till after he was 
14 when he chose Wm. Lawson 

The Question in this Case is whether the Sale by Emery after 
the Judgment And the paying of the Money to the Prochein 
Amie shall conclude the Pit. who was then under Age or be 
any Bar to his Right But first it may be necessary to shew the 
Origin of the Pits. Title to these Slaves And then to consider 
how far the Act of a Prochein Amie shall bind an Infant Upon 
which the Solution of the Question in this Case does properly 
depend 

As to the Pits. Title. If the Question was now whether the 
Slaves vested in Emery by the Marr I presume it would be de- 
termined that they did upon the explanatory Act of 1727. which 
is express in the Point But there having been a Judgment in 
the Case that Act has very judiciously provided that the Prop- 
erty shall be established according to the Judgment & is not 
now to be questioned It is clear then that the Pit. has a good 
Title unless by some Act since that Judgment his Title is defeated 

To proceed then in the Enquiry how far the Act of a Prochein 
Amie shall bind an Infant It may be necessary to see what the 
Office of a Prochein Amy is The Law is very careful & tender 
to preserve the Rights of Infants who are presumed to want 
Discretion for the Conduct & Managem't of their Affairs. And 
therefore all Acts or Contracts of theirs except for Necessaries 
are void in Law Except [240] there be a Benefit or Appearance 
of such resulting to the Infant Cro. Car. 502. Loyd a Gregory 
3 Mod. 301. 307. Thompson a Leach 2 Danv. 767. &c. Upon 
the like Presumption & Reason it is that the Law will not allow 
an Infant to sue or defend an Action in proper Person or to make 
an Attorney for that Purpose but he must always sue & defend 
by Prochein Amie or Guardian to be assigned by the Court And 
he may prosecute a Suit by either but must always defend by 
Guardian It is a great Error to confound the Office of a Guardian 
& Prochein Amie together as some Authors do for there is 
certainly a great Difference between the Power & Authority 



2:^^', 















fc"-t t?.^ Cs.% is cnr.e '^r.'z.'irrsrj:^ inii: the ?r:*:hrii: A~, Trh^ 

»' * —-,";, -» ^. — •--^Trr <a^ ^*-. .«_ .T — - ^ . — — —^^ m^.,.^ *. — c ^ - - ..- > 

rr^ofj Lav/ \jf-/,h;isfz tr.e Prochein Ami vas not an O^c^ at ihe 
O/rr.rr.or. Lav.- Irjt v. as introd-^cei br Statute as has n-een cb- 
vrT'/'rd .W'.ther is an Action eiven bv anv Statute X:r is there 
ar.y In-.tanc'i of such an Action in anv of our Bcoks. It w?uld 
tf.'rn ryr ':xtrerr,':ly hard & not at al' consonant wi:h the Spirit 
of our Lav/s sfj tfrnder of Infants Rights as has been observed 
if the Act of a pr'^Khcin Ami should prejudice an Infant when 
he must U; without [241] Remedy for the Damage he suners Twill 
b^;^ 1' avc to rear! a Case or two that I hope will prove & illustrate 
what has been offered on this Head. Palm. 295. Simps'.»n & aV 
uy/t Jackvjn Cro. Ja. 040. S. C. Sti. 309. From these Cases & 
what has been sayed as well as from the Reason of the Thing I 
hope it is sufficiently evident that a Prochein Ami has no Power 



BARRADALL'S REPORTS B259 

at all to intermeddle in* a Judgment obtained by an Infant And 
that any Act of his prejudicial to the Infant is void I might add 
the Inconvenience that must follow from a contrary Determina- 
tion For then any Person under Pretence of Friendship to an 
Infant may thrust himself into this Office of a Prochein* Ami 
he may receive his Money release his Right And if he prove 
insolvent the Infant be without any Kind of Remedy By which 
Means half the Infants in the Country may be ruined 

If then no Act of Brooking the Prochein Ami can hurt the Pit 
If the Paiment of the Money to him by Emery be no Paiment 
at all in Discharge of the Judgment as I think must follow from 
the Doctrine I have advanced It will also be pretty clear I hope 
that the pretended Sale of the Slaves by Emery upon the Cir- 
cumstances of this Case cannot hurt the Pits. Right or be any 
Bar to his recovering them I call this Sale of Emerys pretended 
because I believe it will evidently appear that the Sale in fact 
was Brookings & Emerys acting in it was only an Artifice to 
blind the World. It was certainly a fraudulent Contrivance 
between Brooking Emery & the Piu'chasors to cheat the Pit. 
out of his Slaves — Brooking the Prochein Ami was a needy 
Man & all he wanted was to get Mony into his Hands The 
Purchasors who no doubt had a good Bargain in the Slaves were 
conscious that Brooking himself could not sell them if they were 
actually delivered to him And so they agree upon this fine Artifice 
that Emery sho'd pretend to sell them tho* the Mony was paid 
to Brooking The Facts in the Verdict prove all this to a Demon- 
stration The Slaves were sold soon after the Judgment Emery 
indeed takes upon him to sell them but Brooking receives the 
Mony of the Purchasors who knew of the Judgment at the Time 
The Purchasors then are inexcusable being privy to the Fraud & 
Contrivance And surely no Fav'r is" due to Men that will thus 
combine to rob Infants of their Rights This Sale then I conceive 
must be looked upon a [sic] Brookings Emery was only his 
Agent the better to colour the Fraud And then sure it will not 
be pretended that this Sale shall bar the Pit. from recovering 
It was never yet allowed that a lawful Guardian could sell the 
Slaves of his Ward Much less one who has really no Power or 
Authority over the Infant or his Estate It is really a Case of 
general Concern & may affect all the Infants in the Country 

I can't tell whether any Stress will be laid on the Rule that 
is entered at the End of the Judgm't which I opened perhaps it 






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*^ 



* ^^^^ ■* • * ^ ■»• • - ^^ — - ^ - 

*,. ^» -"Ti **.# 4^' •*- — J" -— - - » f^^ ' '^ .r^...'-,. — i-- ^^^ i*^. _■ UC 

*r :.\ ^y/ir\ r^r*'^ rr.ter. lei * ^ T^r'^z - m. a r : Tr-=r tc se^ t^e ^.aves 
r.r v> tiilc/^ M'.r.v rn l^.rri cf th-rtn Besif-rs the R:ije is vcii in 

ia>'r*^^ r.'.t cr.Iv f^r hirr^^lf b^r: the L-err. tec Read the R-jIe 
)«'o Ifa-r. "y-.Il ^v tr.e Deft, iras bctini bv this R:ije And if it was 

tr.-^ Ir.'::^;nat:''.r. of this Cotirt to see their Rules ds.de a State & 
Prot>:r*v of to colotir & carry cti a Fraud in Prejudice of Infancs 
%ry>«>; Ca'e :« their peculiar Prcvince 

B'^t a/Irr.:tt:r.g this coTild be regarded as the Act of the Infant 
St:*.l it Tto-jid be void tho' upon Record For as I have already 
or/vrr/ed no Act of an Infant tho' of Record if any Ways pre- 
yylvAiaX to him shall bind him It is known Law that even a 
Fir.fr k-vied by him may be avoided during his Infancy 1 Inst. 
V/>\, a. '>>>0. b. And this Action was brought before his full Age 
hf:^v\f:s the obviotis Meaning of this Rule is no more than this 
that if the Pit. could not have the Slaves again he should have 
as much Money as the Slaves were appraised to It was never 
intended to exclude the Pit. from having his Slaves if he could 
^et them And then the Rule is nothing to the Purpose unless 
the Mony had been actually paid to him which it was not 

The Hardship upon the Defts. will be no more than this that 
they mu.st sue Brooking for their Mony again And whether it is 
not more reasonable that they should be put to that Trouble 
than that the Pit. should lose his Slaves must be submitted 
Had they been fair Purchasors without Notice of the Judgment 
ft<'>mething might be sayed in their Excuse but they knew at the 
Time they were buying the Slaves of an Infant they were privy & 
consenting to the Juggle & Contrivance of the Pochein Ami & 
fio were Parties to the Fraud I hope no Countenance will be given 
to Fraud in this Court Nor so ill a Precedent established that a 
Prochein Ami may sell the Slaves of an Infant 

By the Laws of this Colony every Guardian must give Security 
before he can act as such and for omitting to take Security the 



BARRADALL'S REPORTS B261 

Justices are answerable And so the Infants Right & Interest is 
sufficiently protected But a Prochein [243] Ami gives no Security. 
And il he proves insolvent the Infant is ruined 

For the Deft, it was sayed that by the Judgment the Defend't 
had an Election to pay the Money or deliver the Slaves And that 
by Paiment of the Money the Property of the Slaves was divested 
out of the Pit. It was granted that that nothing done to the 
Infants Prejudice should bind him but that here was no Injury 
to him the Value of the Slaves was paid to a Person having 
sufficient Authority to receive For if the Prochein Amy could 
not receive the Mony There was no other Person to whom it 
could be paid the Infant having no Guardian. If the Sherif 
had levied the Mony on Exon he must have paid it to the Pro- 
chein Ami And where is the Difference That the Infant was 
in no worse Case than if a Guardian had acted in this Manner 
which it is allowed he might do The Infant might have his 
Action ag't the Proch. Ami That here was really nothing of 
Fraud in the Case nor any Occasion for underhand Dealing 
For Emery might lawfully sell the Slaves after the Judg*t If Exon 
had been sued out & the Sherif could not get the Slaves he must 
have levied the Money Where then was the Fraud or Injury 
to the Infant. A great deal was sayed of the Power of Guardians. 
And it was industriously endeavoured to confound the Offices 
of a Guardian & Prochein Ami & make them the same It was 
also much insisted on that great Service was done to the Infant 
by bringing the Suit for if it had been delaied a little longer till 
the explanatory Act was made the Infant would not have re- 
covered at all 

April 1737. Judgment for the Deft. 

Note the Court seemed not to take the Difference between 
a Guardian & a Prochein Ami Nor to consider the gen'l Incon- 
venience of allowing such Power to a Prochein Ami And the 
Advantage to the Infant by having Suit brought seemed to 
weigh much 

OCTOBER COURT MDCCXXXVII. 

Farrow ag't Farrow. Cane. 

Abraham Farrow Father of the Pit. & Deft, being seised of 
divers Lands by his Will devises them among his Children & 
afterwards purchases Lands of one Barton which both before & 



B262 VIRGINIA COLONIAL DECISIONS 

after he bought it he declared he intended for his Son Abraham 
(the Pit.) whom he seated upon it And the Pit. has made Im- 
provements The Father in his last Sickness procures a Promise 
from his eldest Son (the Deft.) [244] to convey this Land to the 
Pit. And this Bill is brought to compel a Conveiance accordingly 

The Promise is confessed by the Deft, but sworn by him to be 
made upon an Apprehension that his Father had no Will he 
having declared some few Days before that he had none Only 
two Papers containing Pieces of Wills Neither of which he 
liked & would alter them or make a new Will One of these 
Papers is since established as the Will By which Deft, has a very 
slender Provision only 750 A. of poor Land & the Reversion of 
200 more & not a Penny of the personal Estate appraised to 
500;^. whereas Pit. has Lands to 3 Times the Value exclusive 
of Bartons besides Slaves & other Estate So that Deft, is almost 
disinherited When the Will was in Contest Pit. proposed to 
Deft, to release his Right to the Manner Plantation ab't 200 A. 
not so valuable as Bartons w'ch is given to Pit. by the Will if 
Deft, would convey Bartons Land to him This Deft, agreed to 
But after the Will was established Pit. claimed both & refused 
to stand to his Agreement For which Reason Deft, not believing 
it was his Father's Intention that Pit. should have Bartons Land 
& the Manner Plantation too brought an Ejectm't in the County 
Court for Bartons Land & had Judg't to recover 

The Equity set up by the Pit. in Order to have a Conveiance 
of the Land in Question is founded 1. Upon the Fathers de- 
claring both before & after the Purchase that he designed the 
Land for the Pit. 2. Upon the Defts. Promise to his Father 
when sick to convey it I shall consider both these Points ab- 
stracted from the Circumstances appearing in this Case And- 
see what Effect or Operation they have at Law Then I will 
enquire how far a Court of Equity will interpose in Cases of this 
Nature And afterwards consider this Case in all its Circimistances 
After which I hope it will be no difficult Matter to convince 
the Court that the Pit. ought not to be relieved 

The Fathers Declaration if it can operate at all at Law so as 
to convey any Estate to the Son must be as a Covenant to stand 
seised And so it would had it been committed to Writing but 
being only by Parol it cannot operate as a Cov't to stand seised 
which being a Conveiance to Use cannot be good unless put in 
Writing for no Use can be raised by Parol So is Callard & 



II 

II 



BARRADALL'S REPORTS B263 

Callard 2. Ro. A. 788. Mo. 687. ** The Father being upon the 
Land says to his Son I do here reserving an Estate for my 
own & my Wife's Life give unto thee & thy Heirs forever 
** these my Lands &c.*' In this Case it was adjudged that no 
Use could arise to the Son being by Parol And the like Point is 
adjudged in 1. Sid. 26. Hore & Dix & [245] 82. Foster & Foster 
— But this ex abundanti The Laws of this Country are express 
that no Estate in Land pass but by Deed So that this Decl. 
can avail nothing at Law. 

Then as to the Defts. Promise to his Father there being no 
Cons, to induce that Promise it is void in Law. There is no Rule 
of Law more universally known than Ex nudo pacio non oritur 
actio I need say no more since the very bringing of this Suit is a 
Confession that the Pit. is without Remedy at Law 

I shall proceed then to consider how far a Court of Equity 
will relieve in Cases of this Nature And 1. As to the Fathers 
Decl. This it is sayed sufficiently shews his Intention that the 
Pit. should have the Land which to be sure cannot be denied 
But then that Intention I humbly conceive is not suffic't alone 
for a Court of Equity to make a Decree upon A Mans Intention 
to do an Act without the Concurrence of those Forms &c. Cir- 
cumstances which the Law requires is of no Signification at all 
As may be illustrated by various Instances If a Man makes a 
Will & declares an Intention to revoke it but does not actually 
revoke it This Intention will not amount to a Revocation So 
if a Man devises his Land by a Nuncupative Will or in England ^ 
makes a Will in Writing And there is but one Circumstance or 
Formality required by the Statute of Frauds wanting Or if a 
Deed be signed & sealed but not delivered In all these Cases the 
Intention is apparent but yet a Court of Equity will not relieve 
From these Instances & many others that might be named it 
is evident that a Mans Intention alone is not a suffic't Ground 
or Foundation for a Court of Equity to make a Decree In the 
Case of Callard & Callard cited supra the Fathers Intention was 
plain to give the Land to his Son Yet that Intention not being 
manifested according to the Forms of Law nothing passed Nor 
do we read that the Son attempted to support this Gift in a Court 
of Equity Indeed I am yet to learn if there be any Case where a 
Court of Equity has decreed an Heir to convey meerly upon the 
Intention of his Ancestor to give the Land to another The 
Argument is as strong & the Case equally equitable- where the 



B264 VIRGINIA COLONIAL DECISIONS 

Ancestor devises Land by Will without Writing that the Heir 
should be compelled to convey to the Devisee The Intention is 
sufficiently evident but there never was an Instance of that kind 
I can venture to affirm 

The Case of Clavering a Clavering 2 Vem. 473. is a very strong 
one to prove that a Mans Intention alone without the Concur- 
rence of those Forms & Ceremonies which the Law for very wise 
Ends has appointed to the Consummation of every [246] Act 
is not a suffic't Reason for a Court of Equity to interpose & 
interrupt the Course of the Law. The Case was thus *' Sir Ja's 
** Clavering made a Settlem't in 1684. under which the Deft. 
** claimed In 1690. he made another Settlement without any 
** Regard to that of 1684. under which the Pit. claimed There 
** was no Power of Revocation in the Deed of 1684. but it was 
** in Proof that the Deed was not published or delivered out by 
** Sir James & was found among his wast Papers at his Death 
** That the Deed of 1690. was often mentioned by him as the 
** Settlement of that Estate & so indorsed with his own Hands & 
*' he told the Ten'ts the Pit. was to be their Landlord." But 
notwithstanding all these Circumstances to favour the Settlem't 
of 1690. & tho* Sir James's Intention was very plain & evident 
Yet no Relief could be had ag't the Settlement of 1684. In 
which there being no Power of Sir Ja's could not resume the 
Estate whatever his Intention or Inclination might be 

There is indeed a very great Difference between Conveiances 
made to a Purchasor for a valuable Cons. & voluntary Con- 
veiances without any Cons, at all In the first if there be any 
Defect in Point of Form or Ceremony a Court of Equity will 
always interpose & compel a perfect Conveiance according to the 
Agreem't of the Parties but in the latter Equity scarce ever 
intermeddles [Except in some special Instances where Cred'rs 
or younger Children are concerned 2 Vent. 365. IVem. 37, 38. 
40.] (a) 

(a) See 2 Sal. 416. 

They are left to their Operation at Law and valeant quantum 
valere possunt is the Rule for Equity will not assist them And 
this Difference is well founded both in Reason & Justice In 
the Case of a Purchase there is a meritorious Act on the Part 
of the Purchasor viz. the Paiment of the Cons. And natural 
Justice requires that he should have a good Title made to him & 
not lose his Purchase for Want of a meer Ceremony But in the 



BARRADALL'S REPORTS B265 

Case of a voluntary Gift there is no Merit in the Donee. It is 
from the meer Favour of the Donor that he has any Thing 
And therefore he must take the Gift as it is for better or worse 
Equity will not stretch to assist him Especially against an Heir 
whose Right & Title are favoured both in Law & Equity 

Had the Ancestor then in this Case gone much further than 
.he has done Had there been a Deed actually executed but that 
was imperfect for Want of some Circumstance As if there had 
been a Feoffment without Livery Even in such Case the Con- 
veiance being voluntary a Court of Equity I conceive would not 
compel the Heir to perfect it but would leave the same to its 
Operation at Law Much le^s then ought this parol Decl. to be 
assisted ag't the Heir 2 Ch. Ca. 133, 134. 1 Vern. 37, 38. 

I come now to speak to the Defts. Promise made to his Father 
[247] to convey this Land to the Pit. his Brother without any 
Regard to the Circumstances attending it This Promise as I 
have already observed is void in Law being made without any 
Cons. And I conceive it is void in Equity too At least I can 
safely say I never yet read or heard of an Instance where a 
Court of Equity compelled a Performance of a Promise of this 
sort It is nattiral Justice that there should be Quid pro qtio 
And where there is not Promises of this kind will fall within the 
Rule & Reason of voluntary Conveiances. They must operate 
as they can at Law for they are never assisted in Equity It is 
indeed a Rule that Equity will not relieve ag't a Maxim of the 
Comon Law And it is a Maxim Ex nudo pacto tton oritur actio 

From what has been sayed I hope it is pretty evident that the 
Pretences set up by the Pit. to intitle him to a Conveiance of the 
Land in Controversy from the Deft, have no solid or equitable 
Foundation taking them in the most favourable Light for the 
Pit. But when the Circumstances attending this Case are con- 
sidered which I must now beg Leave to speak to I believe it will 
appear that there is as little Honesty as Equity on the Pits. Part 
And extreme Hardships on the Defts. if he shall be compelled to 
convey this Land 

It has been opened that at the Time the Deft, made the 
Promise to his Father to convey the Land to the Pit. he appre- 
hended there was no Will His Father told him so In the Event 
it falls out there is a Will by which the Pit. who is a younger Child 
has more than three times the Estate given him than is given to 
the Deft, the Heir at Law Is there any Reason or Justice then 



B2W VIRGINIA COLOXIAL DECISIONS 

that any Thing more should be done for this younger Child & 
th': Heir be quite disinherited tho' it does not appear he ever 
offended his Father or gave him any Cause to disinherit him. 
Was this younger Child unprovided for there might be some 
Appearance of Equity. But when he is so amply provided for & 
will at all Events have jl better Estate than the Heir Surely 
there can be no Reason that a Court of Equity should lend any 
Assistance to disinherit an Heir under such hard Circumstances 
& against a constant & estabHshed Maxim that the Heir is to 
be favotired. See 2. Sal. 416. 

But after all it is somewhat surprising that a Man should 
come into Equity to compel the 'Performance of a Promise 
altogether voluntary And at the same Time refuse to perform 
an Agreem't on his Part that is really more than voluntary 
And such an Agreem't as I conceive a Coiui; of Equity ought to 
compel the Performance of The Deft, in his Answer swears that 
when the Will was in Contest the Pit. proposed to him to rel. 
his Right to the Mann'r Plantation if he would convey Barton's 
Land to the [248] Pit. And this was agreed to by the Deft, tho' 
the Mann'r Plantation is not near so valuable as Bartons This 
Agreem't is likewise proved by a Witness who heard the Pit. 
acknowledge it But see the Justice & Honesty of the Pit. as 
soon as the Will is estabHshed he flys from this Agreem't refuses 
to perform it And now he will have Bartons Land & the Mann'r 
Plantation too It is a Maxim He that will have Equity must 
do Equity And surely it is equally reasonable & equitable that 
the Pit. should perform his Agreem't as that the Deft, should 
perform his I beg Leave to observe the Justice of the Deft, in 
this Agreem't He had all the Reason in the World to beUeve 
from what his Father told him that the Will would not be estab- 
lished & then the Mann'r Plantation had descended to him Yet 
he is content upon the Pits, releasing this slender Prospect of 
a Right to comply with what he took to be his Fathers Intention 
for he swears he does not believe his Father intended that the 
Pit. should have Bartons Land & the Manner Plantation too Nor 
is it reasonable to suppose he should intend to leave his Heir 
who had never disobliged him without a House to put his Head in 

It may be objected perhaps that the Pit. when he made this 
Agreem't was doubtful of his Right to the Mann'r Plant'n 
That if he had been sure the Will would be established he would 
not have made it Such an Argument may be a Proof of the 



BARRADALL'S REPORTS B267 

Pits. Cunning but not of his Honesty But to obviate the Force 
of this Obj. if there is any in it that an Agreem't founded upon 
a Mistake that is where a Man thought he had not a Right when 
he really had is binding in Equity ** A Man seised of Freehold 
** Lands in tail with Rem'r to his elder Brother & of Copyhold 
** Lands in Fee devises the Freehold Lands to his younger 
** Brother & the Copyhold to his elder Brother And the Devisees 
** agree that the Lands should be enjoied by them accordingly 
" And this Agreem't was established in Equity Tho* it appeared 
** that the elder Brother thought the Intail of the Freehold 
*' Lands was docked And the younger Brother to draw on the 
** Agreem't made him believe so when in Truth it was not*' 1 Ch. 
Ca. 84. Frank a Frank 

This Case I think is a full Answ'r to any Obj. that may be 
made that the Pit. when he made this Agreem't did not know 
his Right But the Obj. is really ridiculous in this Case & must 
turn upon the Pit. Since we may likewise object that the Deft, 
did not know he should lose Mann*r Plantation when he promised 
to convey Bartons [249] to the Pit.. There remains not then in 
my humble Apprehension the least Pretence why the Pits. 
Agreem*t should not be enforced as well as the Defts. Promise 
made under the Circumstances appearing in this Case If the 
court should be of Opinion that the Pit. ought to be relieved at all 

But after putting the Deft, to all the Trouble & Charge he 
has done and refusing to perform an Agreem*t proposed by 
himself for settling this Difference between two Brothers And 
an Agreement that in Equity as I conceive he is bound & com- 
pellable to perform I hope the Pit. is intitled to no extraordi- 
nary Favour But as it is a Case without Preced't that ever an 
Heir has been compelled to perfect a defective voluntary Con- 
veiance or to perform a Promise made without any Consideration 
& upon a Misapprehension too And the Case in all its Circum- 
stances is extreme hard upon the Deft. I hope the Pit. will have 
no Relief at all but that his Bill will be dismissed 

And upon Hearing in October 1737. the Bill was dismissed 
by the Opinion of the whole Court 

Hawkins a Bongham &c. 

The Question here was the same as in Hawkins & Thornton 
ante 227 — And Judgment was again given for the Pit. by the 



B268 VIRGINIA COLONIAL DECISIONS 

Opin. of Lee, Tayloe, Randolph, Custis, Grymes, Carter, Digges & 
Byrd — Robinson con. — So Byrd changed his Opinion 
But the Defts. appealed 

APRIL COURT MDCCXXXIX 
EwELL Heir of Ewell ag't Miller & his Wife Adm'rx of Myars 

The Pit. declares in Cov*t upon a Deed from the Intestate to 
the Pits. Father dated in 1708. whereby in Cons, of 150 £. he 
sells to him certain Lands & covenants to warrant defend save 
harmless [250] & keep indemnified the said Land to the Grantee 
ag't all & every pson & persons whatsoever that should thereafter 
make any Claim or pretend any Title And avers that the Estate 
[sic] or the Defts. have not defended saved harmless &c. (in 
the very Words of the Gov't) And that so the Intestate or the 
Defts. have not kept the Gov't of the Intestate but broke the 
same 

The Defts. plead that the -Pit. & his Fa'r from the making of 
the Deed to the bringing of this Suit have peaceably enjoyed 
without the Molestation Interruption or Hindrance of any pson 
w'tsoever 

The Pit. replies that the Intestate & his Wife were seised in 
Right of the Wife & made the Deed af'd which they acknowledged 
but there is no Record of her privy Examination And that so 
the Intestate or the Defts. have not defended saved harmless & 
kept indemnified the said land ag't the Claim & Title of the Wife 
And to this Repl. the Deft, demurs 

I think I might with Reason in this Case find fault with the 
Declaration for that the Assignment of the Breach is too general 
And also with the Repl. as it is no Answer at all to the Defts. 
Plea Inconsistent upon the Face of it & a Departure from the 
Decl. as I think But I will wave all cavil & Exception to the 
Pleading And confine myself to speak to the Merits of the Cause 
alone by endeavouring to shew that taking this Case as it appears 
upon the Pleadings there is no Breach shewn of the Gov't upon 
which the Pit. declares 

The Case upon the Pleadings is in short this A Man & his 
Wife seised in Right of the Wife sell & convey Land by Deed 
which they ackn. but there is no Record of the Wifes Exam. 
There is a Gov't in the Deed to warrant defend save harmless & 
keep indemnified the Land ag't the Claim & Title of all psons. 



BARRADALL^S REPORTS B269 

This Deed has been made almost 30 Years And the Pit. & his 
Father have peaceably enjoied without the Claim or Disturbance 
of the Wife or any other ever since And the Question I take it 
properly is 

Whether the Pit. can maintain an Action on the Gov't to 
warrant save harmless &c. because the privy Exam, of the Wife 
is not rec'o for that is all the Breach assigned 

The very State of the Question in my humble Opinion shews 
the Absurdity & ill Ground of the Pits. Action for where is the 
Sense or Propriety to say we have not warranted saved harmless 
&c. because the Clerk omitted to rec'o the. Wifes Exam An act 
not in our Power to compel him to And which [251] it was the 
Business of the Purchasor to look to Especially when it is not 
pretended that the Pit. has at all suffered by this Omission but 
it is admitted that the Wife has never disturbed him He & 
his Father have had quiet Possion these 30 Years Cov'ts are 
to be considered. 1. According to the Force & Operation of the 
Words in Law 2. According to the Intention of the Partys 
Now a Cov't in these Words To warrant &c. have no further 
Operation in Law than to subject the Covenanter to make good 
all Damages that the Covenantee sustains by Reason of lawful 
Evictions Sr. E. Cokes Opinion in 1 Br. 2L is express that in a 
Cov't to warrant & defend there must be a Title paramount & 
a lawful Eviction before an Action will lie So that a Title alone 
with't Eviction will not do And there is this plain Reason for it 
perhaps the Title may never be exerted The Case of Foster 
a Wilson in On. 100. proves the same Point as to the Words 
save harmless & indemnified A Man made a Lease & covenanted 
to save harmless ag't P. B. In an Action of Cov't the Breach 
assigned was that P. B. entered & ejected him but not sayed 
with Title And it became a Question whether the Covenanter 
was to indemnifie ag't all Entrys of P. B. whether by Right or 
Wrong And a Difference is there taken & settled that where a 
Cov't is gen'l ag't all psons there it shall be extended only to 
Evictions with lawful Title but where it is special ag't A. B. 
there it shall be extended to all Evictions of A. B. either rightful 
or wrongful Which fully proves there must be some Eviction 
before an Action will lie 

But the Case of Griffith a Harrison 1. Sal. 196. is more express 
in the Point A Man assigned a Lease & covenanted to keep 
indemnified ag't all Arrears of Rent There was Rent in Arrear 



B270 VIRGINIA COLONIAL DECISIONS 

but the Pit. had never been sued for it Yet brought an Action 
on this Cov't And adjudged the Action would cot lie For in all 
Gov'ts to save harmless there must be an actual Damnification 
before there can be saved to be a Breach To apply this Case 
Here they say the Wife not being exam'd her Title is lying out 
ag't them 8c they are liable to be e\-icted which is true But they 
ne'/er have been evicted or disturbed these 30 Years Therefore 
the Pit. is not damnified What Right then has he to this Action 

Another strong Case & which seems the very parrallel of this 
is Grocock a White Mo. 175. Debt on Bond with Condition to 
save harmless & defend certain Land ag't J. S. & all others 
The Deft, pleaded as we have done that the Pit. was never law- 
fully disturbed The Pit. demurred And adj'd for the Deft. [252] 
that the Plea was a good Bar Indeed it was not so much as 
pretended that the Action would lie with't some Disturbance 
but the Question & Doubt was upon the Word lawfully Whether 
th'; Obligor was not obliged to defend ag't unlawful as well as 
lawful Disturbance Now here we have pleaded the Pit. never 
was disturbed at all without distinguishing between law- 
ful & unlawful Disturb'a And so our Case is stronger it being 
admitted that the Pit. never has been disturbed at all 

These Cases I hope fully prove that there must be an Eviction 
or other Damnification before a Man can have an Action on a 
Cov't of this kind Indeed if there were no Authoritys in Law 
The Reason of the Thing in my Opinion speaks plainly enough 
Shall a Man have an Action before he is injured And when per- 
haps he never may be What Rule or Measure can there be for 
a Jury to assess Damages The Chancery indeed by an extraordi- 
nary Power will sometimes allow of a Bill qui a timet as it is 
called because the Pit. is apprehensive of Danger but I never jxt 
heard of such an Action at Law. In Chancery it is only to have 
Security but here Damages must be given for a Thing that may 
or may not happen & before the Pit. has suffered any Wrong or 
sustained any Damage 

And as it is very clear that this Action cannot be maintained 
form the Force & Operation in Law of the Words of this Cov't 
So there is as little Reason to support it from any supposed 
Intention of the Partys But upon Cons, of the whole Deed I 
think it is evident there co'd be no such Intention in making 
this Cov't Because there is another proper Cov't to provide ag't 
any Defect in the Conveiance (as this Circumstance of the Wife 



BARRADALUS REPORTS B271 

not being exam'd must be allowed to be one) And that is a 
Gov't for further Assurance This is an usual Gov't in Deeds & 
inserted for the very Purpose in Gase there be any Defect in the 
Gonveiance to compel the Grantor to perfect it But the Pit. has 
not thought fit to ground his Action upon this Gov't perhaps 
for a Reason that I shall have Occasion to remark presently But 
this Gov't for furth'r Assurance is I think a full Demonstration 
that it was not the Intention of the Partys in making the Gov't 
the Pit. has declared upon to subject the Govenantor to an Action 
for any Defect in the Gonveiance or because the Wife was not 
privily exam which is the Breach assigned 

I cannot well imagine then what can be offered on the other 
Side to support this Action It may be sayed indeed that nothing 
passed out of the Woman by the Deed & her Title lies [253] out 
ag't them I have I hope clearly shewn that the Title lying out 
signifies nothing unless there is an Eviction or at least some actual 
Damage suffered And I will beg Leave to add that perhaps the 
Woman never will disturb them Or if she should it may be 
to little Purpose their Possion of 30 Years may be a good Bar 
to her Title by the Act of Limitation The Husband I believe 
has been dead above 20 Years & she must sue within 10 years 
after her Discoverture & can have no Advantage of a 2d Disa- 
bility If then the Pit. has a good Title ag't the Wife which may 
be true ought he then to recover Dam's in his Action Or if 
the Wife or her Heir never sues there is as little Reason Besides 
as I have observed it is impossible for a Jury to tell what Damages 
ought to be assessed 

Perhaps the Woman is ready to make a better Gonveiance & 
to rel. her Right & Title Ought the Pit. then to recover at 
least he sho'd have asked her before he had sued And if she had 
refused a good Action would have lain tho' not on the present 
Gov't as I conceive but upon that for futh'r Assurance But this 
would not answer the Pits. Purpose so well who after using the 
Land for 30 Years whereby it is become of little Value possibly 
would now rather have his Gons. Mony again by Way of Dam's 
than have a good Title made to him And this I believe was the 
true Motive to bringing this Suit But as it has no Foundation 
either in Law or Justice I hope Judgm't will be for the Deft. 

For the Pit. It was argued that if a Man lay open to an Action 
or if the Damnification was certain & inevitable an Action would 
lie before actual Damnification That the Wifes Title was lying 



B272 VIRGINIA COLONIAL DECISIONS 

out & she -wouM certainly recover And it wctLid be inconvenient 
that they should wait till the Wife sued becaxise in the mean 
Time the Estate might be ail administered Tne foil. Cases were 
c-ited Bush a Ridgle^r Cro. EL 2tA. 5 Co. 24. Bronghtons Case 
3 BuL 2.'j3- Abbotts a Johnson & Sr. Antho. Maynes Case 5 Co. 
2L But Judgment was given that the Demurrer was goc<i per 
totam Curiam. April 1737. 



[254] APRIL COURT MDCCXXXVIII. 

Leg AN Lessee of R'd Bernard Pit. 

Washington Parish. Dishman, Weedon, John & Wm. Brown 
Defts. In Ejectment 

This Suit being brought to settle the Pits. Boimds with some 
of the Defts. And to try his Title with others There has been 
a Survey in the Country & a Trial at the Bar there The Jury 
have given a special Verdict Upon which the Case is In 1651. 
a Pat. was granted to Ann Bernard for 1000 A. of Land And in 
1054. Another Pat. for 1500 A. including the 100 A. Under which 
the Pit. claims Ann Bernard died seised & the Premes descended 
to her Son R'd Bernard who died in 1691. ha\'ing by his Will 
devised the same to his Sons Philip & John John had the whole 
by Survivorship & died in 1709. having by his Will devised to his 
Son the Lessor of the Pit. who is also his Heir & was 25 Years 
old when this Suit was brought. 

In 1689. John Bernard the Grandfa'r who lived in Glouc'r 

Richard? (different hand) W. W. S. 

made a Letter of Atto. to William Buckner to sell Part of this 
Land And in 1691. Buckner for a small Cons, takes upon him 
to sell two Parcels to Tho's Weedon & Alex'r Shairs Under 
whom the Defts. Dishman & Weedon claim These Deeds are 
made in the the Name of Buckner himself & not in the Name 
of Bernard who indeed was dead before the Date of them Dish- 
man & Weedon have been in quiet Possion from the making of 
these Deeds to the bringing of this Suit And died seised before 
the Suit was brought in the Life time of the Pits. Father There 
is no Title at all for the other Defts. Except w*t they can derive 
from Possion proved by sev'l Depcons which are found by the 
Jury tog'r with the Survey'rs & Jurys Report in the Country 



BARRADALL'S REPORTS B273 

And the Jury further find that the black Lines in the Surveyor's 
Plat are the true Bounds of the Pits. Pat. 

The Bounds being thus settled the Court will not I presume 
suffer that Matter to be brought again into Dispute The Points 
then arising upon this Verd't are 3. 1. Whether the Defts. 
Dishman & Weedon have a good Title under the Deeds from 
Buckner If not Then 2. Whether the Grantees in those Deeds 
d)ring seised in the Life of the Pits. Father will avail any Thing 
3. Whether the Possion of any of the Defts. will give them a 
Title or bar the Pit. from bringing this Suit 

I shall begin with the Title of Dishman & Weedon And I con- 
ceive the Deed from Buckner as Attorney of our Grandfa'r is 
void for 2 Reasons 1. Because it is not made in the Name of 
the Principal but of the Attorney himself 2. Because the 
Principal was dead before the Deed was made And consequently 
the Attorneys Power determined Co. Lit. 52. a. b. [255] As to 
the 1. It is a known & settled Rule that when a Man has Author- 
ity given him as Attorney of another to do an Act he must 
do it in the Name of the pson who gives the Authority for the 
Attorney is in the Place & represents the pson of his Principal 
Co. 9. 76. b. Combs Case. This is proved by the gen*l Form 
of Letters of Attorney which runs as indeed the Letter of Attorney 
in this Case does For me & in my Name to make seal &c. But 
there are besides sev'l adjudged Cases in Point 

Q. if not good either way Vid. 1. Sal. 96. 

The King by Lres Pat. gave Authority to his Surv'r to make 
Leases The Surv*r causes a Lease to be made betw. the King 
of the one Part & I. S. of the other Part Concluding In Testi- 
mony whereof the sd. Surveyor put his Seal This Lease was 
adj'd void because the Surv'r put his own Seal & not the Kings 
whose Attorney he was And without the Kings Seal it was not 
his Lease Mo. 70. 71 

Sr. Thos. Dabridgcourt obtained a Decree in Cane, ag't Sir 
Antho. Ashley for 1000;^. Sr. Thos. made a Lre of Atto. to his 
Son to compound the Suit which he did for 200 Marks & made 
a Rel. to Sr. Antho. in his own Name This Rel. was ruled in 
Cane, to be void because not made in the name of his Father 
Mo. 818. And a like Case is there remembred of Leases made 
by Sr. Francis Walsingham as Atto. of Sr. Philip Sidney in his 
own Name which were likewise ruled to be void in Cane. 



B274 VIRGINIA COLONIAL DECISIONS 

The Reason upon which these Cases stand I take to be this 
That every Authority delegated to another must be strictly 
pursued. Otherwise it is void 1 Inst. 52. a. 258. a. And as in 
the Cases cited the Authority given was to make Leases in the 
Name of the Constituent That Authority was not pursued 
Which is the very Case here. The Deeds are made in the Name 
of Buckner the Atto. The Authority given is to sell & the Deeds 
" for me and in my name and as my Act to deliver " So that 
the Atto. not having pursued his Authority his Act i. e. these 
Deeds are void (a) But they are also void for another Reason viz. 

(a) Bac. Abr. 204. 3 Bal. Abr. 403. 

2. That Bernard the Princ. was dead before the Date of the 
Deeds And so the Authority w'ch Buckner had as Atto. was 
determined This is so plain from the Reason of the Thing as 
well as express Authoritys in Law that it would be mispending 
Time to say much on the Subject Lit. S. 66. puts a Case of a 
Feoffment & a Lre of Atto. to make Livery There if the Feoffor 
dies before Livery it cannot be made afterwards For which 
he gives this one plain Reason because after his Decease the 
Right of the Lands is forthwith in his Heir or some other This 
Case put by Litt. is stronger than that before us for here is no 
Deed executed only an Authority given to make a Deed in his 
Name And therefore I will beg Leave to add to the Reason of 
Littleton another of my own viz. that it is impossible the Author- 
ity should be pursued [256] because the Deed must be made in 
the Name of the Princ. which cannot be after he is dead I 
might add further that in this Case the Lands are devised And 
the Devise taking Effect immediately upon the Death of the 
Testor was a Countermand in Law of the Authority given to 
his Attorney in the same Manner as making a 2d Lre of Atto. 
is "a Countermand or Revocation of a former Sr. Ed. Coke in 
his Commentary 52. b. has adopted this Doctrine of Littleton 
And adds that a Letter of Atto. to make Livery after the Death 
of the Feoffor is void From whence it follows that it was not 
in the Power of Bernard to impower Buckner by Lre of Atto. 
to sell the Land after his Death if he had it in his Intention (which 
does not appear) tho* with*t Question he might have given him 
such Power by his Will I shall then take it for granted that 
the Deeds from Buckner to Weedon & Shairs are void And that 
nothing passed to the Grantees And then the 



BARRADALL'S REPORTS B275 

2. Point in the Case & w*ch concerns the Title of these Defts. 
only is Whether the Djring seised of Weedon & Shairs the Grantees- 
in the Life of the Pits. Father will avail anything 

The Finding in this Case is so odd that I am forced to guess at 
the Meaning of it but I suppose it may be insisted that a Descent 
takes away an Entry Admitting which I answer It is not found 
there was a Descent from Weedon & Shairs to their Heirs Only 
that they died seised which they might do & the Land not 
descend for they might devise it away or a Stranger might enter 
after their Death & abate And in either Case the Dying seised 
will signifie nothing for it is the Descent & not the Dying seised 
which takes away the Entry For illustrating this I must beg 
Leave to consider a little the Law on this Head In Judgment 
of Law the worthiest Means of coming to an Estate is by Descent 
& therefore the Law has annexed to it divers Privileges particu- 
larly this we are now speaking of that a Descent shall take away 
an Entry The Meaning of which is that where a pson comes 
to an Estate by Descent There tho' another has a good Title 
he shall not be allowed to enter upon the Heir who is in by 
Descent but shall be put to his Action to recover (Lit. S. 385.) 
that is a Real Action for I shall agree if our Entry is taken away 
We cannot maintain an Ejectm't But here it is only found 
that the Grantees of Buckner died seised Not that there was 
any Descent And as one might well be with out the other I con- 
ceive this Dying seised avails nothing at all it does not take 
away the Pits. Entry 

But there is still another Obj. viz. that it does not appear 
when these Grantees died seised Only that it was in the [257] 
Lifetime of the Pits. Father Now he was an Infant when his 
Father died in 169L & continued so for many Years dying a 
young Man tho' 18 Years after his Fathers Death And if the Pits. 
Fa'r was an Infant at the Time of the Descent (admitting there 
really was a Descent in the Case) such Descent would not take 
away our Entry For the Law ever careful of the Rights of Infants 
will not suffer that they shall be prejudiced by any Thing that 
happens during their Nonage In all our Acts of Limitation 
there is a Saving to the Rights of Infants And so in all Cases 
at the Common Law where Time or any Act in Law will take 
away a Right there is an Exception to the Case of Infancy as 
in this of a Descent taking away an Entry & many others Litt. 
S. 402. Now as the Pits. Father might be & probably was an 



B276 VIRGINIA COLONIAL DECISIONS 

Infant when this pretended Descent happened It signifies 
nothing at all If the Defts. will say he was not under Age I 
answer it was incumbent upon them to have that found in the 
Verd't According to a late Resolution in this Court between 
Ivey & Fitzgerald upon an App'l from Nansemond It was in 
Apr. 1736. (ante 176; The Case was in Eject m t upon a special 
Verdict where in a Descent was found Which I insisted took 
away the Pits. Entry But J. R. argued that we could have no 
Advantage from that unless it appeared that the Pit. was under 
no Incapacity at the Time of the Descent And that it was in- 
cumbent upon the Deft, to shew it if he would take Advantage 
of such Descent Of which Opinion the Court was & Judgm't 
given accordingly And this being a parrallel Case I hope the 
Court wil be of the same Opinion 

I am now come to the 3. & last Point & which is the great 
Question of the Case Wheth'r there has been such a Possion 
in any of the Defts. as will give them a Title or bar the Pit. of 
his Entry. 

The Possion of the Defts. Dishman & Weedon has been under 
the Deeds I have been speaking of But as to the other Defts. 
The Parish & the Browns It does not at all appear how they 
first came into Possion They show no kind of Title either by 
Grant from the Crown or any of the Pits. Ancestors Or that 
the Land in Controversy is within the Bounds of any such Grant 
But all the Title they have to rely upon is barely Possion In 
speaking therefore to this Point it may be necessary to shew 1. 
That such a Possion as this in Controversies about Bounds has 
not been usually favoured in this Court Or 2. If it has That we 
are not barr'd in this Case by the Act of Limitation and conse- 
quently that no Possion tho* ever so long can avail the Defts. 
But first I must beg Leave to state the Facts relating to this 
Question 

I shall admit the Possion of the Defts. to be the strongest 
the Witnesses speak of viz. 50 Years tho* they say between 40 & 
50. I must observe that so long as 1673. the Pits Grandfa'r 
comenced a Suit ag't one Horton Under whom the Parish claims 
for settling the Bounds of the Land now in Contest This Suit 
by the artifices of Horton [258] was protracted till the Year 
1686. when it was dismissed without any Judgm't because it 
had been so long depending This Period falls in very near with 
the Time the Witnesses say the Defts. have been in Possion 



BARRADALL'S REPORTS B277 

A few Years after this in 1690 or 1691 our Grandfa'r died having 
devised to his 2 Sons Philip & Jn'o both Infants John had the 
whole by Survivorship & died a young Man in 1709. leaving the 
Pit. an Infant who brought this Suit before he was 25 Years old 
ab't 8 years ago I think And in this Suit the Defts. have used 
all the Chicanery & little Arts they could devise to delay it 

Under this View of long Suits protracted by the Arts of the 
Defts. And the Infancy of the Pits. Father & himself This 
Title the Defts. would build upon Possession must appear to be 
very indifferently founded Since every Possion that can give 
a Right must be peaceable & uninterrupted And there must be 
no Incapacity in the Party who has a Right to claim or enter 

But as to this Point of Possion with Respect to Bounds I never 
understood in all the Determinations I have beard in this Court 
Any other Regard was paid to it than as it was a presumptive 
Evidence of Right in Cases where perhaps there was no other 
certain Rule of Determination For Instance in the Case of Lands 
adjoining to each other claimed under different Patents It is 
a known Thing that in most of the old Pats, the Bounds are 
described with so much Incertainty and often Contradiction 
that it is next to impossible to determine from thence what the 
true Bounds are or ought to be And therefore as the best Guide 
& Rule in such dark & perplexed Controversies the Court have 
generally settled the Bounds according to the ancient Possion 
where it has appeared to be peaceable & uninterrupted But 
where the Bounds of a Pat. are certain & evident & any pson 
has encroached within those Bounds without any kind of Title 
I believe no Instance can be given of a Determination in this 
Court that a Possion of this kind without more should give a 
Title Much less where there have been continual Controversies 
& Disputes or Incapacities in those who had the true Right & 
Title as appVs to be the Case here Indeed it would be utterly 
inconsistent with the Spirit of our Law to determine that Possion 
should give a Right where there are Incapacitys in the Persons 
that should claim I have had Occasion already to observe the 
great Care both the Statute & Common Law have always taken 
of Infants Rights And it is the same with Respect to other In- 
capacities Nothing that happens during the Incapacity can 
possibly hurt them And I will beg Leave to add that in natural 
Justice there is no Reason why the longest Possessions hould 
give a Right Since in the [259] Nature of Things a Wrong be- 



B278 VIRGINIA COLONIAL DECISIONS 

comes only the more aggravated the longer it has continued. 
Institutions of this kind may be convenient for Society and 
without Doubt are so. But then they ought to be confined to 
the positive Law & carried no further And I humbly conceive 
there is no positive Law in this Case No Act of Limitation 
that will ban* the Pit. of his Entry or Action as I shall now 
endeavour to shew 

In speaking to this Point it may be necessary just to remember 
the sevl Acts that have been made in this Coimtry that can any 
way respect the present Question In 1662 An Act was made 
Intitled Lands 5 Years in Possion (cap. 72) By this Act if a Man 
having Right to Lands did not prosecute his claim within 5 Years 
he was forever barred With a Saving however to Infancy & other 
Incapacitys This was certainly a very severe Law but yet it 
subsisted above 40 years till 1705 when an Act was made repealing 
it & much to the Purport as to the Matter of Limitation with 
that we now have But there being some Things in this Act not 
approved of by the King It was repealed by Procl. as I have 
been told And is also repealed in express Words by the Act of 
1710. the only Act we now have as to this Matter [sic] And sup- 
posing the Act of 1662 to be revived by the Repeal of the Act 
of 1705. It is again repealed by the gen'l repealing Clause in 
the Act of 1710. 

This Act of 1710 then is the only Law now in Force respecting 
the present Question for I presume it will not be pretended that 
this Court can judge upon any Act that is repealed From whence 
it will follow that the Possion of the Defts. before 1710. is quite out 
of the Question And if the Pit. has pursued his Right within the 
Time limited by this Act No Possion tho' ever so long can bar him 
The Words of the Act so far as respects the present Question 
are " That no Person or p. sons that now hath or have or which 
hereafter may have any Right or Title of Entry into any Lands 
&c. shall at any Time hereafter make any Entry but within 
20 Years next after his or their Right or Title hath heretofore 
descended or accrued or hereafter shall descend or accrue 
Provided that if any P. son or P. sons that hath or shall have 
such Right or Title of Entry be or shall be at the Time of such 
Right or Title first descended accrued come or fallen within 
the Age of 21 years Feme covert Non compos Imprisoned or 
out of the Colony Such Pson may make his Entry within ten 
Years after the Incapacity removed." 



BARRADALL'S REPORTS B279 

It is plain that the Makers of this Act had under their Cons. 2 
Things viz. to provide for those Rights & Titles that had accrued 
before the Act And for such as sho'd accrue afterwards As to 
the first P. sons having such Rights are to make their Entry &c. 
within 20 Years from the Time their Right first accrued But 
if they were under Age or other Disability at the Making of the 
Act [260] By the Proviso ten Years is given them after the 
Disability removed to make such Entry The Words of the Act 
are so extreamly plain they will admit of no Comment 

Now in this Case the Lessor of the Pit. had a Right of Entry 
at the Time this Act was niade Which accrued to him upon the 
Death of his Father By the Enacting Part which has been read 
he was to make his Entry within 20 Years from the Death of his 
Father w'ch happened in 1709. But this he has not done But 
then being an Infant when the Act was made he has by the 
Proviso ten Years after his coming of Age And this Suit was 
brought before he was 25. And so he is within the Time limited 
by the Proviso Thus having made our Entry within the Time 
limited by the Act of 1710 And there being no other Act in Force 
whereby the longest Possession can bar us I apprehend it to be 
extreamly clear that the Lessor of the Pit. is not barr'd by the 
possession of the Defts. in this Case And as t is clear that we 
are not barr'd by the Act of Limitation So I hope that the Possion 
relied on by the Parish & the Defts. the Browns which is all the 
Title they have will avail nothing under the Circumstances of 
this Case And that the Defts. Dishman & Weedon have no Title 
under the Deeds from Buckner And then Judgm't I presume 
will be given for the Pit. for all the Land within the black Lines 
determined by the Jury to be the true Bounds of his Patent 
and I humbly pray Judgment accordingly — 

There was no Argument made as to the Title of Dishman & 
Weedon Nor any worth noting as to the other Points So 
Judgm't was given for the Pit. for all the Lands within the black 
Lines Apr. 1738 



APRIL COURT MDCCXXXIX. 

Nance ag't Roy. 

In Detinue for a Slave upon a special Verdict the Case is 
** John Nance possessed of the Slave in Question & others by 



it 



B280 VIRGINIA COLONIAL DECISIONS 

his Wm dat. Feb. 2. 1731. gives to his Wife Mary " All his Estate 
both real & personal All his Household Goods & Moveables 
whatsoever during [261] her natural life " And makes her sole 
Extrix Afterwards he devises away a Negro Girl & gives 
some small Legacies but makes no other Disposition of the 
Estate given to his Wife The Wife is dead having in her Life 
time given the Slave in Question to one Perry from whom the 
Deft, is a Purchasor for a valuable Cons. The Pit. claims as 
Heir at Law of the Testator 

The Sole Question in this Case is whether by the Devise for 
Life &c. making the Wife Extrix the absolute Property of the 
Testors Slaves vested in her Or whether the Pit. as Heir at Law 
of the Testor is intitled to them after her Death 

In Order to give this Question a proper Solution it will be 
necessary first to see Whether Slaves in this Case are to be con- 
sid'd as a real or personal Estate For that they participate of 
the Nature of both & vary as the subject Matter is different 
I think no Man can dispute For Instance when a Question is 
made concerning the Slaves of an Intestate They are then without 
question to be considered as a real Estate being to descend as 
Lands of Inheritance in Fee But where a Question is made 
concerning a Gift or Devise of Slaves There I conceive they must 
be considered as meer personal Chattels ' 

That Slaves in their Nature are nothing more than Chattels 
must be granted & were so for a long Time in this Country till 
the Act of 1705. c. 3. which has altered the Nature of them & 
made them a real Estate in some Cases Upon this Act there was 
great Variety of Opinions & different Constructions Some 
adhering too strictly to the Letter without a proper Attention 
to the Spirit & Intention of the Act would have Slaves to be a 
real Estate almost in all Cases tho' the plain & obvious Meaning 
& Design of the Act was no more than to make them so where 
a pson died Intestate The true Reason of making that Act & the 
Policy of it being to prevent Widows & Adm'rs from running 
away with the Slaves & to preserve them for the Benefit of the 
Heir for the Improvem't & Cultivation of his Land A Policy 
very necessary & expedient considering the Method of improv- 
ing Lands here 

And that this was the true Design & Intention of that Act, 
We need only recur to the Act of 1727. c. 11. made for explaining 
it which has so clearly settled every Doubt & Controversy that 



BARRADALL'S REPORTS B281 

had arisen or can arise upon the Construction of the first Act 
that there cannot now well be any Difference of Opinion And 
let any Man consider these two Acts tog'r & tell me one Instance 
wherein Slave;$ are made a real Estate Except in the Case of 
Psons dying Intestate I say nothing here of annexing Slaves 
to intailed Lands as quite from the Present Ptirpose. 

If then Slaves are to be taken as a real Estate in no other 
Case but where the Owner dies Intestate it follows than when 
they are made the Subject of a Gift or Devise they must be 
considered meerly as Chatties Indeed the Words of the last 
Act of Ass. are extreamly [262] plain that in every Case where 
the Property is transferred from one to another that they shall 
pass as Chattels The Clause I rely upon runs thus ** Whenever 
any Pson shall by Bargain & Sale or Gift either with or without 
Deed or by his last Will & Testament in Writing or by any 
Noncupative Will bargain sell give dispose or bequeath any 
Slave or Slaves Such Bargain Sale Gift or Bequest shall transfer 
the absolute Property of such Slave or Slaves to such Pson 
or Psons to whom the same shall be sold given or bequeathed 
in the same Manner as if such Slave or Slaves were a Chattel " 
Nothing can be more full & express than the Words of this 
Clause And after reading it I think it would be taking up Time 
impertinently to say any more Where a Slave is bequeathed it 
shall pass the absolute Property as if such Slave was a Chattel 
Here a Slave is bequeathed to one for Life And no Rem'r over 
And if such a Bequest of a Chattel would transfer the absolute 
Property It must likewise transfer the absolute Property of a 
Slave 

The Question then is Whether the Bequest of a Chattel to one 
for Life with't limiting any Rem'r over & making the Legatee 
Extrix will pass the absolute Property of such Chattel to the 
Legatee 

It is an old & established Rule of Law that the Gift of a 
Chattel for an Hour is a Gift forever And tho* of late Rem'rs 
over of Chattels (as we improperly term them) have been ad- 
mitted Yet when the Reason of those Determinations are con- 
sidered it will app'r that they do not break in upon this Rule 
of Law The Law does in no Case admit of the Rem'r over of a 
Chattel personal in the strict Sense of the Word Rem'r It is 
true the Use may be given to one for a Time & the Property 
limited to another Which Limitation of the Property is often 



B282 VIRGINIA COLONIAL DECISIONS 

called a Rem'r but improperly as I conceive For a RemV 
ex vi termini is something that is left or remaining of a Thing 
in Part disposed of before Now no Degree of Property passes 
by the Gift or Devise of the Use of a Chattel If there did there 
could be no Limitation over but the whole Property vests in 
him to whom the Limitation over is made w'ch therefore cannot 
with any Propriety be called a RemV If a Man by Deed gives 
a Chattel to one for Life without limiting it over the absolute 
Property will pass without all Question And so it will if he does 
make a Limitation over For that is repugnant & void Because 
by the Gift for Life the whole Property passes according to the 
old Rule I have mentioned that the Gift of a Chattel for an Hour 
is a Gift forever & nothing more remained to dispose of But 
if a Man by Deed give the Use of a Chattel to one for Life And 
after his Death to another Such Limitation over is good because 
no Property passed to the first only the bare Use but the whole 
Property vests in the latter In Wills indeed no Difference is made 
whether the first Bequest be expressly of the Use or not if it can 
be collected [263] from the Will that the Testor intended only 
the Use And therefore a Bequest to one for Life & afterwards 
to another is good for the first Bequest is construed to pass only 
the Use And that for this very Reason because otherwise the 
Limitation over could not be supported The Reason of this 
Difference between a Will & Deed is that Deeds are construed 
strictly according to the Words but in Wills a greater Latitude 
is allowed & the Intention of the Testator will supply the Want 
of Apt Words Upon which Ground it is that in the Case before 
put where a Chattel is devised to one for Life & afterwards to 
another that the first Devise is construed to pass only the Use 
because otherwise the Testors Intention in making the Limita- 
tion over would be frustrated & therefore to serve that Intention 
& support the Limitation over such Constr. is made It is 
plain then that the first Devise is construed to pass only the 
Use meerly for the sake of supporting the Limitation over And 
it as clearly follows that where there is no such Limitation nor 
any other Clause or Words in a Will to shew that by a Devise 
for Life the Testator intended only the Use should pass or to 
make such Construction necessary That the Property must pass 
by such Devise Construction must then be made according to the 
legal Sense & Operation of the Words For it is a Rule in the 
Constr. of Wills as well as Deeds that the legal Sense of Words 



BARRADALL'S REPORTS B283 

must be adhered to unless the Testators Intention be apparent 
to give them another Meaning Now in the Devise before us the 
Words of the Will are clear to pass the Thing itself & not the 
Use " All my Estate both real & personal I give to my Wife 
** during Life." There is no Limitation over or other Clause in 
the Will to shew the Tester intended only the Use or to make 
such Construction necessary And therefore to make such Constr. 
would be contrary to all the Rules of Constr. before laid down 
and must offer a manifest Violence to the plain Import & Mean- 
ing of the Words which I conceive is never done unless from 
other Parts of the Will it may be clearly implied that the Testa- 
tors Intention was otherwise And it is apparent that in these 
Determinations even in the Case of Wills that the old Rule of 
Law is still preserved sacred & inviolate the first Devise is con- 
strued to pass only the Use for if the Property once passed there 
could be no Limitation over The Property of a Chattel can 
never be in two Persons distinctly at the same Time but if it is 
given only for an Hour it passes forever & nothing remains in 
the Giver No Instance of Devise for Life passing only the 
Use unless Rem*r over 

But* admitting such a Construction should prevail which I 
can hardly suppose that nothing more than the Use passed to 
the Wife by the Devise to her for Life The next Question is 
in whom the Property vested — Whether in the Pit. as Heir at 
Law or in the Wife as Extrix And I conceive it vested in the 
Extrix & not the Heir I have already proved I hope sufficiently 
that Slaves are in no Case a real Estate discendible to the Heir 
but where the Owner dies Intestate [264] and the Consequence 
I apprehend is clear that wherever a Man by his Will disposes 
of his Slaves in any Manner the Heir can have nothing to do 
with them By such Disposition the Owner alters or rather 
preserves the Nature of Slaves & makes them meer personal 
Chattels Whenever a Slave is bequeathed it shall pass as a 
Chattel says the Explanatory Act If then they are to be con- 
sidered as Chattels as I humbly conceive they must in this Case 
Then whatever Right or Property remained undisposed by the 
Devise to the Wife for Life vested in her as Extrix It is a known 
Thing that all Chattels go to the Extor & not to the Heir And 
the very making of a Man Extor is in Judgment of Law a Gift 
to that Person of all the Testors psonal Estate which all passes 
to him & he has a Right to it unless otherwise disposed of by 



B2S4 VIRGINIA COLONIAL DECISIONS 

the Will Except in some Cases where the Extor is taken as a 
Trustee for the next of Kin If then the Bequest for Life do's 
not pass the absolute Property I hope that Bequest & making 
the Legatee Extrix are suffic't to pass all the Estate the Testor 
had 

Obj. The Words of the Will are express to pass no more than 
an Estate for Life That was clearly the Intention of the Testor 
And that Intention ought to be supported & such Constr. made 
as will support it 

Resp. It is true that the Rule for Constr. of all Wills is the 
Intention of the Testor But th^en this is to be understood under 
some Restriction viz. that such Intention be consistent with 
the Rules of Law For no Intention tho' ever so apparent can 
pass an Estate or Interest either in real or personal Estate ag't 
those Rules For Instance if a Man devise Lands in Fee & then 
limits the same Land over to another The Limitation over is 
repugnant & void It being ag't a Rule of Law that any Estate 
sho'd be limited after a Fee So if a Devise be of Chattels to one & 
the Heirs of his Body which Words create an Estate tail Yet 
the Intail is void because it is ag*t a Rule of Law that a Chattel 
should be intailed It avails nothing then as I conceive to say 
the Testators Intention is apparent if that Intention clashes 
with any Rule of. Law as it does in this Case Here is a Devise of 
a Chattel to one for Life And no Rem'r over The Rule of Law 
says the Gift of a Chattel for an Hour is a Gift forever And 
therefore tho* the Intention be plain to pass no more than an 
Estate for Life Yet inasmuch as such Intention is inconsistent 
with that Rule I humbly conceive it cannot prevail ag't the Rule 
And this I hope is a full & clear Answer to all that can be urged 
from the Testors Intention in this Case 

Obj. If a Term be devised to one for Life After the Death of 
the Devisee it shall go to the Extor of the Devisor 1 Sal. 231. 

Freeman's Rpt. 272. 

[205] Eyers ag't Falkland. 1. Mod. 54. 55. S. P. per Twisden 
And 2 Vern. 332. Where Chattels are devised for a limited Time 
it shall be intended only the Use of them per Lord Keeper 

And here Slaves being a real Estate after the Estate for Life 
ended ought to go to the Heir Resp. The Case of a Term which 
is a Chattel real & that of a personal Chattel as our Case is are 
very different There may be a Rem'r limited of a Term by 



BARRADALL'S REPORTS B285 

Deed as well as by Will D. of Norfolks Case 3 Ch. Ca. 1. There is 
also a Reversion in Chattels real which can never be in Chattels 
personal for if the Property once passes it is gone forever & can 
never revert i.e. come back again to the Giver But because there 
is a Reversion of a Term Where it is given for Life it may come 
back again to the Extor of the Devisor The Case of a Term 
then is nothing to the present Purpose And as to the Saying 
of the Lord Keeper (supra) it must be understood according to 
the subject Matter The Case before him was a Bequest of 
Chattels to me for Life with Rem*r over & the Question was 
Whether the RemV over was good Says the Keeper where 
Chattels are devised for a limited Time it shall be intended only 
of the Use And therefore says the Reporter allowed the Rem'r 
over to be good So that this saying of the Keepers plainly 
can only be applied to Devises with a Rem'r over & is not to be 
taken generally in all Cases Nor is there one Determination nor 
even Opinion that I know of Where a Devise of a Chattel for 
Life without any Rem'r over passes only the Use On the 
contrary it is evident that such Devise is construed to pass no 
more than the Use meerly for the Sake of supporting the Rem'r 
over 

But if this Case of a Term shall be thought any thing parrallel 
Yet as Slaves here are not to be considered as real Est'a as I have 
endeavoured to shew Then the Reversion vests in us as Extor 
And so the Case of a Term is for us & not ag't us 

Needier for the Pit. allowed the Question to be Whether the 
Devise of a Chattel for Life passed the absolute Property And 
insisted that only the Use passed & no Property by such Devise 
Cited Clargis & D — ss of Albemarle 2 Vern. 245 He sayed it 
was a gen'l Rule that a Devise for a limited Time passed only the 
Use Hyde & Parrott 2 Vern. 331. And that where only the 
Use was devised no Property passed only the Occupation for 
where the Property first vested There he agr'd the absolute 
Right vested Cited Ow. 33. Dyer's Opin. that the Devise of 
the Use of Plate to one & the Heirs of his Body passed no 
Property but the Devisee had only the Occupation. 1 Sal. 231. 
Eyre & Falkland. Where a Man disposes of a Part of a Term 
the Residue is in his Extor And sayed the Reason why there 
was no Case of this Sort but where there was a Rem'r over was 
because there never was in England a Devise of Chattels for Life 
with't a Rem'r over 



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Ar-.-i it v; tr.at :n I>:er th-e Eievise there -arss exrresslv if the 
fc^.r:^ tr.at Opin. T.'^Ii harlly p^is ::r La-*- at this Dav 

O-^r. =tr^:r.2 a De^it^e ftr LJe tc ra^s ctilv the Use is tc serve 
tr.*: T^-V^r^ In^^rr.fjctth^tit Dc-jht Bu: in -srhat Why in scptorting 

t'r.f: P*rn;'r over "whi^h "acotild be cthennse v^:i It is to surtrort 
an Int^^.t zr^i^^.r.z ticon the Face o: the WiZ & net one 
fj^'.'.*-/Xf-A from extrinsic Circumstances To talk of an latent 
o^it of the Will 15 5/>ntewhat new & unccmmon The true & onlv 
I<eav>r4 yir.y these Devises are construed to pass only the Use 
j^ that the v/hole Will may take Ecect as is sayed in Clar^ & 
\y — ss of Alr^ierr^rle And *it was the very reason of allowing 
the-/; sort of Devises at first Mannings Case 8 Rep. 94. 6. From 
v/ ch Case it is plain that a De\'ise for Life will pass the absolute 
I'r^/j^erty if there is no Rem'r over 

To say there never was a Devise of this Kind in England with't 
a K^rm'r over will want something more than a bare Assertion to 
obtain Credit Wills are often drawn by ignorant People there 
as well as here And there being no Instance of such a Case in 
the BryAs will rather prove as I conceive that this was never 
made a Question in England as I daresay it never was rather 
than that no such Case ever happened there 

But there are Cases where a Devise for Life with a Rem'r 
over that has been void has been adj'd to pass the absolute 
Property as Brown & Pitman Gilb. Rep. 75. Devise of personal 
M state for Life & afterwards to all such Issue as he sho'd have 
And ff)r Want of Issue Rem'r over Devise over agr'd to be void 
And 1 Devisee had a Decree 



BARRADALL'S REPORTS B287 

Gibbs & Bemardiston Id. 79. Devise to one And if he die 
with't Issue Rem'r over whole Int. vests in 1 Devisee Prec. 
Ch. 323. S. C. 

Webb & Webb 2 Vem. 668. Devise of a Term In Trust to 
[267] permit T. W. the Defts. Father to receive the Profits for 
his Life And after his Death the Wife for her Life Rem*r to the 
Heirs of their Bodies The Father assigned the Term The 
Question was between the Assignee & the Heir whether the Term 
vested in the Father And adj'd at first that it did not but after- 
wards reversed. 

See also Ch. Ca. Abr. 362. 16. Bass & Gray 

In all these Cases the Rem'r was held to be void & therefore 
that the Devise for Life carried the absolute Property Now if 
such a Devise will pass the absolute Property where there 
is a Rem'r over that is void Upon the same Reason it will 
where there is no Rem'r at all 

As to the Intent of the Testor that must consist with the 
Rules of Law (Ante) This is evident from the Cases just now 
cited where the Intent was clear to give only for Life So 
Slaughter & Whitlock in this Court adj'd in Apr. 1737. (ante 233.) 
w'ch was a Devise of Slaves to two & their Issue And if either 
die without Issue Rem'r over Here was a clear Intent that the 
Surv'r sho'd take upon the Death of the other without Issue 
But this making a kind of Intail The Rem'r over was adj'd void 
It is not strange then that an Interest or Estate sho'd pass ag't 
a Mans Intent The Law often supervenes that Intent where 
it is inconsistent with any of its Rules 

There cannot be the same Reason or Equity to make Constr. 
in fav'r of the Heir as of the Rem'r man Because in the latter 
Case the Testors Intent is plain & express & to be collected out 
of the Will itself In the other it is nothing more than Imagina- 
tion & Supposition And the Testor possibly might never have 
his Heir in his Thoughts And as to the Heirs being favoured 
That Rule holds only in the Case of Lands And goes upon a very 
different Reason Besides here Slaves are admitted to be a 
personal Estate How then can they go to the Heir 

As to the particular legacy excluding Extor from Surplus 
there is a Difference where a Wife & where a Stranger is Extor. 
For which see Dun & Wythe in Reports ante Page 

There were two Arguments made in this Case The last in 
Apr. 1739. when Judgm't was given for the Deft. viz. that the 



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r^r t?.^ r^:t. tha.*. r. i:i Tt<t n the Wue Lee- TijVe. Rzcin- 
v.r, Ir.'/x'^, i^'jz\ Si the Gcvem:r 

(j^. If th'.-^ Ci-^ n-.er.f.tne^ ac-^ve •:: a Devise ::r Life with 
a. 'r//\ P'rrr/r ^v^ ^o net all turn tic-cc this Pi'-nt that the Rem'r 
rr.;*/!': a '<'.zA of Ir.ta:! Ar.i so tr.e ac^:>^te Pr:::ertv vested 

^'o* V/ ;n Forth lie Chaprnan 

B'Jt ?»otf: Mar.r.:r.;;s Case S. Co. 9-3. It seems admitted that 
th'; !>:'/:/; for Life v/o'd vest the ahsclute Property if there had 
no*, Wrr. a kerr/r over 

^/, in Forth & Chaprr.an 1 W 11. G*>3. 000. a Devise for a Day or 
;iri Hour of a Tfrrm w:th Rem'r over that is void passes the whole 
'\iTu\ :f Intent ay^f/rs that the whole was to go from the Ex'rs 
Fr, J'ky: MaV of the Rolls 



BARRADALL'S REPORTS B289 

OCTOBER COURT MDCCXXXVIII. 
Palmer a Word 

In Detinue for Slaves upon a Special Verd*t the Case is The 
Pits. Mother when she marr*d his Father Martin Palmer deced 
was possed of sev'l Slaves particularly one called Bridget [269] 
Palmer died before his Wife in 1717. & by his Will devised 
Bridget to the Pit. & other of s*d Slaves to his other Children & 
made his Wife & two others Extors. The Wife afterwards 
married the Deft. And in 1721. An Action of Detinue was bro't 
in K. & Q. Court in the Name of the Pit. & his Brothers & Sisters 
by their next Friends Martin & Roger Palmer ag't the Deft. 
& his then Wife as one of the Ex'rs of s'd Testor for Bridget & 
the other Slaves devised to them In which Action the gen'l 
Issue was pleaded And upon Trial a Verdict given for the Defts. 
** Which Verdict is admitted to Record & the Suit dismissed with 
" Costs & at the Defts. Motion the Pit. is ordered to pay them 
** 15S. for an Attorneys Fee" These are the very Words of the 
Record. The Slaves in Question are the Children of Bridget 
bom after the Death of the Pits. Father And the Pit. claims 
them under the Devise in his Fathers Will 

It will not be made a Question I suppose but that Bridget 
& the other Slaves of the Pits. Mother vested in his Father upon 
the Marr between them The Act of 1727. explain'g that which 
declares them to be a real Estate has expressly settled the Law 
in this Point But then there is a Proviso in the Act in these 
Words. ** Provided that nothing in this Act contained shall be 
** construed to change or alter the Property of any Slave or 
** Slaves w'ch by the Judgm't of the Gen'l Court or any County 
" Court have been heretofore adjudged to belong to any P.son 
** or P. sons whatsoever but such Judgment shall remain & for 
** ever hereafter shall be deemed & taken to be valid & binding" 
Now in this Case the Deft, says there has been a Judgment viz. 
the Record in K & Q. Court found in the Verdict. The sole 
Question therefore is whether this Record be such a Judgm't 
as within the Meaning & Intention of the Proviso af 'd will bar the 
Pit. from claiming the Slaves in Question or from bringing this 
Suit 

It may be necessary in the first Place to enquire into the 
Reason & Policy of this Proviso w'ch at first View seems a 
little hard as it gives a Sanction to Judgm'ts whether the De- 



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A >>.«*•• ,..K I m . ^ — - » ^-s i: - ' 'rito .► - ^ — ^^sz * T*. ^<i to. a -J. — ftT?^ I to r?r>iito_to-.c 

,..4i,. ^t*zZK /O. « -•• ^...rrltoto'i'tr* * rrt ,*» to.*-.- w-^- -->-c -*i-*j..to ..^C x a- .« Aii ^ 

I* %a.^ r.^:v*rr ir.ter.'i^ tc t^ke a'srs.y the Ri^ht of bringing a 
V/r:* of F^r'-^r to ZH^ffT"^ ar.v Jut;rtn't of this Kind if there was 
oth^rr Car;--/: for rioir.jf :t than the ad^d^in^ the Prcrertv of the 
W,HVfr\ i^/T instance if a Judgm't was ch:ained by Fraud Or if 
an Infar.t ha/'i b^fm sued & appeared by Attorney instead of 
f/fjard:ar, ^it'ch is Error It can never I say be supposed to be 
tho- Ir.Vrr.*iori of the Law makers to make such Judgments valid 
<n i/f yy/fz a Sanction to them. But the Judgments intended 
by thin Proviso are only such where it appears 1. that the 
Prop^rrty of the Slaves was adj'd to belong to some Person & that 
M\t<fT\ ^fmc controverted Point w'ch the Explanatory Act settles. 
2. That such Judgm't be valid in Law & binding upon the Party 
iiyjt wh^/m it is given And such as would be a good Bar to another 
Action 

I will now beg Leave to examine the Reco. produced by the 
Tf;xt I have laid down And I believe it will appear to be dificient 
in both Instances viz. That it does not appear the Property of 
Ihc! Slaves was adj'd And that it is not valid or binding in Law 
Herrf is the Record (Read it) 



BARRADALUS REPORTS B291 

This Record Sir is nothing more than a Relation or Account 
of a Trial that a Jury was sworn a Verdict for the Deft. & the 
Suit dismissed It is not sayed nor does it appear that the Court 
gave any Judgment at all much less that the Property of the 
Slaves was adj'd to be in the Deft. It was certainly a Matter 
of Law whether the Slaves vested in the Husband or not And 
if that was the Queon at this Trial w'ch I insist upon it does 
no Ways appear the Jury should have found a special Verdict 
Or at least the Court have directed them as to the Matter of Law 
There is nothing but a bare Presumption that this Point was at 
all in Question The Suit indeed is in the Name of Children & 
ag't the Extor of the Husband but it does not follow that therefore 
this Point was in Question If Presumption is to weigh or pre- 
vail It ought to be made in Fav'r of the Coiirt & Jury that 
they did their Duty w'ch they certainly did not at this Trial 
if it was left to the Jury to determine Whether the Slaves vested 
in the Husband by the Marr It was a Matter of Law which 
the Court should have determined But [271] if we are to go 
upon Conjecture & Presumption I will beg leave to offer mine 
too. This Suit is to be sure as absurd a one as ever was brought 
It is an Action of Detinue by 4 Pits, who had separate Interests 
ag't one Exor tho* there were three who proved the Will to 
recover sev*l specifick Legacies devised to the Pits. This app*rs 
in the Decl. Now 1. the Pits, could not join 2. Detinue would 
not lie ag*t one Extor alone & 3. Neither would such an Action 
lie for a Legacy for the Legatee could have no Property but by 
Del very of the Extor & the proper Remedy was in Chancery 
Now it is as reasonable to suppose that all or some of these Points 
were insisted on at the Trial & induced the Jury to give their 
Verdict as that they took upon them to determine whether the 
Slaves vested in the Husband If it be sayed these were Matters 
of Law The same Answer is given as to the Presumption they 
would make After all It is a new Way of arguing upon Records 
to make Suppositions & Presumptions of Things that do not 
appear The Rule of Law is ** Inter non existentia Sr non appa- 
rentia eadem est ratio.'* There is no Difference between Things 
that do not appear & Things that are not If then it doos net 
appear that the Property of the Slaves was adjudged by the 
Court upon this Trial It must I conceive be taken for granted 
that it was not 

Indeed there will be no End to making Presumptions The 



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^r.*! it t?. tT-'rf '-T^ I r. '-1.*t th.'T'T "XT.II C.«£ CCtlTrJV r^'^rCIc'd 

# " ' '^**"'^ **^^ *"** ***"" """""^ - - - — — • •— ■ — ~ ■ ' w " » 

r*:v*rr» 'f f'.r Err^r N't:::htT v-.ll :• te zrs% Bar ic a secz-f Ac*::n 
hr'/t for tl-e s^me M alter The W:rls /ifc JvTKJiie^^siiK tsi 
ar^ e-'^^.tial V> every J-igm*t Ani the Law is sc- nice & strict 
that r.o ether Woris the' cf the sane Iizror: & Si^nifcation 



are r-ff.o't Or.e Reaser: given & a g»l ctie is that it otight 
*y> a:.i/f:ar tr.at J-n'igment was given en due Cins. 1 Inst. 39. 
Tr.e ver^'a-iiir-^ of other Words will niake the Judgm't errontous 
'5 Danv. .Vi. p!, I'i''-J -1- to 24. Xcw in the Reoc-rd before us it is 
V/ far from being entered that it was considered that it is not 
so m'-:',h as saved to be ordered Except with Respect to the 
Lav. vers Fee Xor any other Word to shew it was the Act of the 
Orjrt 5>o that this is real'y nothing more than an Account of 
a Trial bt:t no Judgm't at all 

[272] Sho'd this Exception be overruled there is still another 
Ac a stronger remaining It is not entered .that the Pit. shall 
lake nothing by his Bill These are Words so absolutely essential 
that without them the Judgm't is of no Efficacy at all It cannot 
Ix: pleaded in Bar to a second Action brot for the same Matter 
It may be reversed for Error. It is a known & settled Rule 
that every Judgm't to be a good Bar to another Action must be 
a compleat Judgm't in Law both as to the Matter & Manner 
As to the Matter it must appear that the very Right of the Cause 
was determined in the former Action As to the Manner It must 
be entered up in the Form the Law has prescribed Now these 
Words qd, Querens nil capiat is a Phrase of Art not to be supplied 
by any other Words & without which no Judgment can be 
a Bar to another Action Cro. Jac. 284. Leval a Ha , 1 Bro. 81. 
S. C. 2. Mod. 294. cited Holt R. 552. Fr Holt And this Point I 
have known adjudged in this Court If then this is not such 
a Judgm't as would bar the Pit. from bringing another Action 
in Case this Act had not been made I hope the Act will not be 
construed to give a Sanction to such Judgments w^hich strictly 



BARRADALL'S REPORTS B293 

speaking & in the Eye of the Law are really no Judgm*ts at all 
A 3 Objection to this Record called a Judgm't is that it is ag't 
Infants & so not final or conclusive upon them The Law is 
very tender & careful of the Rights of Infants So that no Act 
done during their Nonage to their Prejudice unless they have 
a Remedy over is binding upon them Upon this Reason it 
is there is a Difference where an Infant is Pit. & where he is 
Deft. Where he is Deft, he may be bound if he defends by Guard- 
ian & not else but never where he is Pit. When an Infant is 
sued a Guardian ought to be appointed by the Court to defend 
him And if he loses his Cause by his Mismanagem't or Default 
the Common Law gives him an Action ag*t his Guardian to have 
a Recompence in Damages But where an Infant brings an 
Action Be it by prochein Amie or Guardian (for it may be by 
either) the Law gives him no Action at a'l in Case of any Neglect 
or Default to his Prejudice And therefore no Judgment given 
ag't an Infant Pit. is binding & conclusive upon him In this 
last Case the Guardian or next Friend are not appointed by the 
Court but anyone who will thrust himself into the Office may 
be so for that Purpose. 

I had Occasion in an Argument 2 or 3 Courts ago between 
Brooking & Dudley (ante 239) to shew the Difference between 
a Guardian & prochein Ami And that tho* the Offices were often 
confounded they were really very widely different 
[273] It seems however unnecessary at this Time to enter 
into that Point of Learning. It may suffice I hope to shew an 
Authority for the Difference I have taken where an Infant is 
Pit. & where Deft, w'ch if rightly understood will serve for an 
Answer to any Cases that may be produced to prove the Power 
& Authority of a Guardian And make it evident they only re ate 
to Case; where an Infant is Deft. Simpson a Jackson Pam. 
295. 

The Law in this is founded upon the highest Reason for how 
easie would it be by Covin & Collusion to juggle Infants out of 
their Rights if an Action brought in their Name by a pretended 
next Friend sho'd be final & conclusive upon them The Infant 
can have no Action or any other kind of Remedy It will be 
no Answer to say there is no Fraud appearing in this Case My 
Argum*t is gen*l that Judgm'ts ag't Infant Pits, are not con- 
clusive because there may be great Prejudice arising to Infants 
It is an Argum't ab incovenienti which is suffic't to prove a 



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Ar.<i I iou^-r :n:r -v:ll '-#» -v-^il :L':ti:a: ier^i 

T?."^ frir I hi'xe "liLa 5L^':ri -^ :ii: Bar iz 3kZ.zz ihe ?It3. Title 
V> t?.rt Slar^ia m ^"iti^ictL I. Zz fi:es m:^ iC';ear th^i: the Pn'- 
er^T ^f *r^ Sla-r-^ -ri^ it iZ ii-^ir-^i :r letermnfiti "urcn this 
Tr:;*! A-d 'he Prt^^-^t r*'_:el ~*:!i :5 ^xtr?<5 Trusn zh& Pncerty 
h^4 r.^y*t: a*i"iit^-^ 2. H^r* :s r^aZ— ZfZ 'inf^rniiKit ir. the Eve 
of '/".e La.v N'or tc'-.u!,-: -his R^icri te ir.T Bar '.i ancther Aztion 
fr^r th-* ^arrjft ^fa.tt<*r And ccnseittrtitlT can be ncne ro this. 
Z. It til a J-id^rn't :f rt :aii le lalleti 5<: a:^'' an Infant & so 
T^cA f.T^l '^r corxl'i'iv*. F'-r all these Reasons I ccnceive this 
Rj^oor-i i=i nr, J-^istn't Trithin the il^anmg^ i Intenticn c: the 
Pr^v:y^ Sc yj I t-rav Juizmt ::r the Pit. 

Oct. IT.^S. J'jita-ni't 'jras ziven ::r the Defend t viz that the 
R.T^.cr'i ^j'ztA -w^LSi a gxd Jtiirtn t -snthin the Proviso Which 
I r>Trn vfrry rr.tich stLrprised me And the mere as there was cot 
or.f: ^vyi Reason or Argtnnent cnered on the other Side But the 
(y.*:ir.r'[ for the Deft, seemed to be ccnvinceii that the Pit. ought 
r.ot to be tj^LTT^A bv the Record irjnrA. 

Tavloe Grvmes 

Carter Robinson 

EHgges Byrd 

Blair & the Governor for the Deft. 

Lee Randolph & Custis for the Pit. 

fNV>t m A ^iffftrent hand. W. W. S.] 

C^'re hr^w thi% wvald be if th« Srst Judgra't shciild be reversed oa a writ of error 

[27 J] APRIL COURT MDCCXXXIX. 

ScARBURY & Anna Maria his Wife Pits. ag't. 
Barber Extor Barber. De^. in Cane. 

Bill s^;ts forth that Pit. Anna before her Marr with Tester 
Ic'Ht him divers Sums of Money to pay his Debts viz. in July 1729. 
£,\^l — 10 St. by Bill drawn on Jno. Maynard In Dec'r 
following £.:^0, by a like Bill In Jan'ry 1731. ^^.40. by another 
lijll & other Sums am'o to 69-9. 6K Curr't & sold him Goods 
to Am o ;dr.7 -15. Curr't In the whole ^.261-10 St. & 77. 4. 6»i. 
Curr, 

That upon a Treaty of Marr. Testor agreed she sho'd enjoy 



BARRADALL'S REPORTS 



B295 



I 



all her separate Estate Notwithstanding the Marr & that he 
sho*d likewise pay her what he owed and in Apr. 1731. gave 
Bond to the Pit. in Penalty of ;£lOOO. with Condition for Per- 
formance of said Agreem't which Bond is annexed to the Bill 

That the Testor by his Will has only devised to Pit. her separate 
Estate without directing the Paim't of the Mony he owed before 
Marr. Therefore to have Satisfaction for that Mony out of the 
Testors Estate Is the Bill 

Defts. Answer. ICnows nothing of Testors being indebted 

•iage & never heard of the Bond till a Year 

lys he knows upon what Acco't it was given 

any such Agreem't before Marr as in Bill 

& Cattle raised on Testors Plant'n for sev*l 

& after Marr. were used by Pit. and that the 

Plant'n of Defts. descended to him from his 

Years before Marr. were ship*d under Pits. 

d & believes the Tob'o made on his Fathers 

d in same Manner & the Produce carr'd to Pits. 



^<% T»T,- 



I 



I 



I 



[ 
I 
I 



I 



,b't six Weeks before his Death told him that 

uasion he had paid her Son Jn'o Timson 50£. 

I ; a little Ease but he found there was no such 

i would give all from his Children to hers w'ch 

t o & wished he had not paid the 50;^. Made his 

I ho directed him to give Pit. everything she was 

I the Marr saying it was more than she deserved & 

I rds Sake he would not give her a Farthing more 

iesides which he gives her Dower in his Lands 

ard his Father complain of Hardships he suffered 

saw the Bond but in the Office BeHeves it to be 

ig The Condition whereof is thus 

** The Cond. of this Obi. is such that if the above bound W. B. 

** his Heirs, Ex'rs & Adm'rs shall at all Times hereafter suffer 

** the above named A. M. T. peaceably & qu'etly to keep possess 

** & dispose of as she shall think fit all & every Part of the Estate 

** that she is now [275] possessed of both real & personal without 

•* the Molestation of him the said W. B. his Heirs &c. And 

* do hereby further obUge myself my Heirs &c. to pay to the 

** said A. M. T. what I am justly indebted to her Then the 

" above Obligation to be void &c 

Says his Fa'rs Slaves & personal Estate were appraised only 



111 



U- 



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'f'l'*: \^'.'/:^ Vj^rz. are ^xz-jz-z^z^'zrri it Liir A:i«f as :jil5 Case is 

* -.*; - - ^'-.i — ,..e '««i.....i<r aZ^ ^-,- >T^^ Jl -_t • SZ^ m. -^-^'^^^--A — • 

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c'lrr t ^ rJ. 1* c: L^iir-z a L#:T-r->r:cr tr:n the Tfst:r & the 

\^::Sarh '.frr.T*: MaTT- 

Tr.e 'd'^,:£.\ ^►--est:':-:: in this C^se is -arh-rther the Pit. cti^ht tc be 
paid dt 'f the Testers Estate the M:t:v she lent him before 
Marr 

The E'.tiitv s^t u:> is a cretenie-i Azreir:': bef:re Marr that 
the Te^tor sho'd pay the Pit. what he twed her Xttirithstanding 
tlte Marr, This is stigj^-estei in the Bill but net proves! as I con- 
ceive 

I shall therefore in speakir^ to this Cause endeavour to she'w 
\. That there is not any certain or p-c-sitive Proc*t of the Agreem't 
pretended And 2. If there was Tnat the Agreem't is derogatory 
to the R:;^hts of Marr & such as a Court of Equity will not 
support. I shall not rely much upon the Demurrer because 
we are ;^one into Proofs and the whole Equity of the Cause is 
before the Court 

It cannot I think be sayed that there is any direct or positive 
Pro^^f of the Agreem't suggested in the Bill The Bond which is 
a!UyI^ed to have been given for Performance of the Agreem't 
has not a Si liable in it of an intended Marr or that the Condition 
should be performed notwithstanding Marr. Neither is there one 
Witness who proves any such Thing And the Deft, denies that 
he knows any Thing of such an Agreem't 

It appears indeed from the Papers exhibited that the Testor 
courted the Pit. many Years before Marr & offered her very 
\!<t(A Terms but they were not accepted This was four Years 
at least before the Marr. And no Proof of any Overtures within 
those 4 Years or that he continued in the same Mind And yet 



BARRADALL'S REPORTS B297 

these are the Circumstances relied upon to make out the Agree- 
m't suggested in the Bill 

[276] One of these Papers is a Love letter dated in 1722. 9 
Years before the Marr. There is another Love letter without 
Date & the Draught of a Bond sent in it The Date of the Bond 
is cut out with Design I suppose to impose it for a Thing of later 
Date than it really is but the Figure 7 may be seen pretty plainly 
at the End And so we may conclude it was dated in 1727. 4 
Years before the Marr. 

I must submit whether a Man's courting a Woman four 
Years before he marr'd her & then offering her advantagious 
Terms is any Evidence of a subsequent Marr Agreem't suggested 
to be made 4 Years afterwards when there is no kind of Proof 
that the Courtship continued or that the Man remained in the 
same Mind And if it be no Evidence as I humbly conceive it is 
not Then are the Pits, without the least Shadow of Proof of the 
Agreem*t suggested 

The most that can be sayed is that these Circumstances 
make some sort of Presumption that the Bond mentioned in 
the Bill was for Performance of a Marr Agreem't for it is no 
necessary Consequence that because a Man once makes an 
advantagious Offer to his Mrs. that he should be always so dis- 
posed at any Distance of Time On the contrary we know Mens 
Tempers & Inclinations are very subject to change & especially 
in Matters of this Sort when a Mistress is obstinate 

The Presumption then in this Case must be very light which 
according to Sir E. Coke proves nothing at all And if the Differ^ 
ence between the Conditions of the two Bonds be considered 
it must further weaken the Presumption In that of 1727. 
Notice is taken of an intended Marriage whereas nothing of that 
is mentioned in the Bond of 1731. By the first the Testor was 
to make over all his own Estate as well as the Pits, (a most 
extravagant Proposal) The Cond. of the latter is only that she 
shall have her own Estate & he pay her what he owed her As 
there is so great a Difference between the two Conditions & 
one mentions an intended Marr. & the other not As there is no 
Proof of the Courtships continuing from 1727. to 1731. I cannot 
conceive that the Bond in 1727. is any kind of Proof that the 
Bond of 1731. was given on the same Occasion or for the same 
Purpose but the contrary I think is rather to be presumed 

Then the Testors Decl. mentioned in the Defts. answer when 



B2r/S VIRGINIA COLONIAL* DECISION'S 

he nuuie his Will is a further Argument ag't this Presmnption 
After directing a Bequest of Pits, separate Estate & her Etewer 
in his Lands he saved it was more than she deserved & he [277] 
would not have done so much but for his Words Sake which 
plainly imports that whatever Marr. Agreein't he had made 
was only verbal Or rather that he had only made a Promise 
to the Pit. (which perhaps might be after Marr> to do what he 
did. 

This Bequest & Decl. of the Test or I presume will have some 
Weight In the Case of Myhil 8c Myhil Oct. 1735. where the 
Question was Whether the Pit. was a Bastard the Decl. of the 
Husband in his Will that he was so was much relied on And the 
Case of one Tranter a Bailif try'd for the Murder of Mr. Luttere 
was urged where Mr. Lutterel's Words in his last Moments 
were allowed as Evidence ag't the Prisoner Here we have the 
Will & the last Words of the Testor ag't the Presumption they 
would set up. 

But it will be argued perhaps Quorsum hoc To what Purpose 
was this Bond given This I think will admit of an easie answer 
by shewing that the Cond. may have a suffic't Effect & Op>era- 
tion without supposing it to be made for Performance of a Marr 
Agreem't 

The first Part of the Cond. is that the Pit. shall keep possess & 
dispose of all the Estate she was then possessed of without the 
Molestation of the Obligor Suppose the Pit. had anything in her 
Possion which the Testor had or claimed a Right to (And this 
is no improbable Conjecture Since it appears they lived tog'r 
& she had the entire Use & Disposal of his Estate) This Part 
of the Cond. would have its Effect in securing to the Pit. a 
good Title to the Thing so in her Possion And the latter Part 
of the Cond. that he sho'd pay what he owed her might be in- 
tended as a better Security for the Paiment of what he owed 

Thus we see this Bond might be given for another Purpose 
than for Performance of a Marr. Agreem't The Condition 
does not necessarily import that it was given for that End but 
may have a suffic't Operation to other Purposes 

Since then there is not the least mention of an intended Marr. 
in the Cond. Since the Cond. may without any forced or strained 
Construction have a suffic't Operation without supposing a 
Marr. Agreem't And since there is no direct or positive Proof 
of such Agreem't I hope the Agreem't suggested in the Bill shall 



BARRADALL'S REPORTS B299 

not be supported barely upon a slight Presumption without 
other Proof Especially when the Presumption is as strong or 
stronger from the Circumstances that have been taken Notice 
of that there was no such Agreem't 

It is well known that Marr is a Gift in Law of all the Wifes 
[278] personal Estate That it extinguishes all Debts & Con- 
tracts between the Husband & Wife And this Right a Court 
of Equity is always very tender to preserve And I apprehend 
will never take from the Husband what the Law gives him or 
set up a Debt w*ch the Marr has extinguished without clear 
Proof of an Agreem't to that Purpose w*ch I take to be wanting 
in this Case 

But if the Court shall be of Opinion that the Agreem't is 
sufficiently proved And that the Bond is not extinguished by the 
Marr Then I must endeavour to shew 2. That this Agreem't 
is not such a one as a Court of Equity ought to support as being 
derogatory to the Marr Rights 

It will be sayed that Marr Agreem'ts are always favoured 
which I agree to be true in this Sense that an Agreem't fit and 
proper to be decreed will receive a favourable Interpretation for 
the Support of it accordnig to the Intention of the Ptys. But 
I deny it to be an universal Rule that all Marr. Agreem'ts are 
to be favoured Because there are some of such a Nature that 
a Court of Equity will not support them at all And this I take 
to be of that Kind 

The usual Method in Marr Contracts is to make Use of a third 
Person as a Trustee However I will not pretend to say but 
that an Agreem't between the intended Husband & Wife with- 
out the Intervention of a third will sometimes be supported 
in Equity And that whether the Agreem't be by Promise Articles 
or Bond But then 

If the Agreem't be between the Husband & Wife alone I take 
a Difference where the same is to have Exon during the Coverture 
& where the Exon of it is future to the Marr. Of the first Kind 
are such where the Husband agrees ftiat the Wife shall have any 
Thing to her own Use or at her Disposal during the Coverture 
The latter Sort are where the Husband agrees to leave his Wife 
so much at his Death That she may dispose by Will or the like 
In the first Case as the Agreem't is without Question extinguished 
at Law So I take it a Court of Equity will never set it up Because 
it is derogatory to the Rights of Marr & in a Manner inconsistent 






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/'•v / y.?;^ ','::,z:,*/\Jirj',\ exv.r.jr-irr.r-i it the Marr. & refused 
#^*. *^ \"/./^'//:, a Vr\jyjz.s Ex.^ 1 Ch. Ca. 117. An A^rem't 
v.i,t r/.^/:*- '^7 Kt. & ^rr.^'-r* or- her Behalf befire Marr with Tesior 
*',;?< f,'/rv/;rh^r;ir,'::r.;' the Marr. the Rents & Prc.^ts of all her 
*fy>u h^Mx*^t Sc v/hat personal Estate &: gc-:-is she had should 
)/^: it*, ).*:r ov/f, D,'.;/^yVj It was held by the Keeper (Bridgman^ 
i$^A,i.U^] v/;*h tv/o Jwly/ts CHales Sc Archeri that the Agreem't 
V/;ni t',z\it,y/ii j,*A by the Marr And Hales takes the Difference 
I n\y '/fi f/'Ttw. an A;^re'mi*t for any Thing to be done future to 



BARRADALL'S REPORTS B301 

the Marr. & where the Agreem't is to have Exon during the 
Coverture In the first Case he says the Agreem't is not ex- 
tinguished by the Marr. but is in the latter I will beg Leave to 
read the Case as I presume it will be satisfactory to the Court 
to have that great & good Mans Opin. in his own Words 

Thus it appears the same Distinction is kept up in Equity as 
at Law If the Agreem't is extinguished at Law Equity will 
not set it up If it be not extinguished at Law as where the 
Exon is future to the Marr. There is no Doubt but Equity will 
decree it Which is [280] all that is proved by the Cases cited 
on the other Side And this Difference well considered reconciles 
all the Cases we meet with in the Books upon this Subject tho' 
at first View they may seem to clash & contradict one another 

The Agreem't in this Case as set forth in the Bill is to have 
Exon during the Coverture It is that the Pit. shall keep & dis- 
pose of her own Estate And the Testor pay her what he was 
indebted to her And so I apprehend it is not such an Agrem't as 
a Court of Equity will support 

It would indeed be the greatest Absurdity that such an Agre- 
mt. as this sho'd subsist after Marr for every Debt of the Wife 
vests in the Husband by the Marr. And so the same Pson would 
be both bound to pay & intitled to receive if the Debt subsisted 
For this Reason it is & for avoiding this Absurdity that the Law 
extinguishes the Debt And the same Reason will hold good why 
it should not be set up in Equity And I believe I may venture 
to say there is no Instance where a Court of Equity has set up 
an Agrement of this kind but they have often refused so to do as 
appears from the Cases cited 

Obj. Haymer a Haymer 2 Vent. 343. Agrem't between 
Husband & Wife before Marr. that he sho'd settle Lands on 
them & the Heirs of their Bodies Decreed ag't the Heir of the 
Husband This within my Distinction for here was nothing to be 
done during the Coverture inconsistent with the Marr. Rights 
or derogatory from them 

Cotton & Cotton 2 Vem. 290. A Woman Extrix of a former 
Husband lends 100;^. to A. & B. & took a Note for it in her own 
Name & a Bond in Trustees Name & afterwards marr'd B. It 
was held this Debt was not extinguished — The Report is short 
& the Reasons of the Judgm't not given But I take the Reason 
it turned upon was because the Woman lent the Mony as Extrix 
And so the Debt was not extinguished at Law the Husband 



B302 VIRGINIA COLONIAL DECISIONS 

being indebted to her in auler droit as our Books phrase it Vide 
1 Sal- 320 — But here is nothing of a Marr Agrem't in this Case 
And so nothing to the present Arguin't If any thing It serves 
to shew that upon these Occasions Law & Equity go hand in 
hand 

Acton & Peirce 2 Vem. 280. is a Bond to the Wife to leave her 
1000;^. In which Case it is not extinguished either at Law or 
in Equity. 

2 Wms 243. S. P. Cannel vs Buckle. 

Fursor a Penton 1 Vem. 408. Cov't betw. Husband & Wife 
before Marr. that she should dispose 300;^^. notwithstanding 
the Marr The Mony was lodged in a Trustees Hands & the 
Husband brings a Bill ag't him for it suggest 'g the Cov*t was 
[281] extinguished by the Marr The Trustee in his Answer 
says it is hard a Trust sho'd be defeated because the Agreem't 
was improvident ly made between the Husband & Wife The 
Reporter says the Court inclined to dismiss the Bill but there is 
no Resolution — This Case not being adj'd can be of little Weight 
But it is easie to distinguish it from the Cases cited There was 
a Trustee before the Court with a Sum of Money in his Hands 
Upon which the Court could easily lay their Hands And as all 
Trusts are Creatures of Chancer^' the Court might perhaps have 
taken upon them to direct the Paim*t of the Mony according 
to the Trust without Regard to the Informality of the Agreem't 
But here is not Trust or Trustee in the Case before us And so 
the Cases can in no sort be compared tog'r 

N. B. The Reporter seems to inclne to the Difference I take 
And thus I hope it is evident that the Agrem't set up if it was 
fully proved (w'ch I can by no Means admit) is not such a one 
as a Court of Equity ought to support It may seem needless 
then to make any further Observations however to shew there 
is no great Hardship on the Pit. I must beg Leave to make a 
Remark or two 

It appears upon the Defts. Answer & is in Part proved that 
the Pit. for sev'l years ship'd the Testors Tob*o under her Mark 
& reced the Produce & killed & made Use of the Testors Hoggs 
& Cattle In the Acco't exhibited by her she has given Credit 
for no more than 35 . . IL for the Produce of Tob*o And that 
in a gen'l Article without sa)dng how many Hhds she received 
or when & there is no Credit at all for Cattle or Hogs This 



BARRADALL'S REPORTS B303 

must appear a very inconsiderable Allowance for the Labour of 
11 or 12 Hands for sev'l Years 3 according to her own acco't 
Then she charges 2^£. for Tools & Cloaths for the Negros So 
the n't Produce is but 11^^ . . 11. 

It appears further upon the Answ'r that the Testor told the 
Deft, six Weeks before his Death he had at the Pits. Importunity 
fr. her Son 50£. To get a little Ease but she would not be satisfied 
without having all from his Children (as indeed is plain from 
this Suit) No Allowance is offered to be made for this 50^^. 

The Claim the Pit. sets up amounts to more than the whole 
Estate of the Testor So if she succeeds Not only the Testors 
Children will be sent a begging but sev*l of his just Cred'rs be 
defrauded of their Debts And besides all this the Pit. holds 
her Dower in the Testors Lands It is a Maxim those who \vi\\ 
have Equity must do Equity and surely there is as much Reason 
& Justice that the Pit. sho'd acco't for the Profits of the Testors 
Estate while she reced them & for the 50;^. pd. her Son as that 
the Testors Estate should be liable for this pretended Debt to 
her It is a piece of Justice to the Cred'rs & Children of the 
Testor Now I believe if a reasonable Allowance is made for the 
Profits reced by Pit. out of Testors Est'a If the 50;^. pd. her 
Son & the Advantage she has made from the Dower in the 
Testors Lands be deducted out of her [282] Claim I mean 
so much of it as is proved there will be little or nothing due to 
the Pit. 

In the Case of McCarty a Fitzhugh ab't six Years ago which 
was a Bill to compel the Paiment of a Bond Debt due to the Pits. 
Father from the Deft, who was one of his Exors The Deft, in his 
Answer disclosed divers equitable Demands he had ag't the Testor 
And without other Proof the Court allowed those Demands 
to bal'a the Bond Debt And the Suit was dismissed. I hope 
there is the same Equity in this Case to regard the Defts. De- 
mands 

But there is a further Circumstance in this Case which I 
apprehend will bar the Pits, pretended Equity if the Agrem't 
was ever so fully proved It appears that the Pit. has accepted 
w't the Testor gives her by his Will viz. her separate Estate & 
Dower in his Lands. This Acceptance I take to be a Waiver 
of the Benefit of this pretended Agreem't I must submit whether 
this Case be not within the Equity of the Act 1. Geo. 2. 11. w'ch 
enacts that a Widow shall declare within 9 months Whether 



BoW v:rs:x:a c.:i.:nl\.i decisions 

she :^.ll jLcee'jt I'jie ?r"."'<i':ii ::u..ie ::r he* bv her Husbands Will 
If she rjils she -^ :: river horr i tj :lain arvthmg more than is 
^^ven her Iv the '.V 11 Hrre the ^'he is so far trom making 
any Decl. thj.t she t-.H -«. c icjtrct thj.t she actually enters upon 
what :s ctven. hir It -js trLiin nr.m what the Testor declared 
when he rrtade his W.H that th-s TeTise was intended in Satis- 
faction of what he rr:misei w ^h must he understood of the 
Marr A^rrem't The Wife accert it This Acceptance I rely 
upon bars her frjm claiming any-:h:r:.: mere hoth by the Act of 
Ass. & in natural E ::/~i-ty i Justice There can be no Reason 
she shod ha\"e the B^n^ert .^f the EV'.ise & this pretended Agre- 
m't too To the defrauiinii cf the Crec'rs i Ruin of the Testers 
Children 

Upon the wh. le I ccnclule I. that there is no direct or positive 
Proof of any Marr A^renit at all And the Presumption on their 
Side is verv li;:ht in itseh & is also or rosed & baUanced by as 
stron^:: or stron^zer Presume tion en our Side 2. The Cond. of the 
Bond does not necessarily import ihat it must be given for 
Pertomiance of a Marr Agreem't Because it may have a sufRc't 
Erfect & C^eration to other Purposes 3. If the Agrem't was ever 
so fully provevi Yet it is extinguished by the Marr being to have 
Exon during the Coverture & so derogatory to the Rights of 
Marr. & inconsistent with the Nature of it 4. The Deft, has 
divers equitable Demands ag*t the Pit. to the Value of hers And 
if she will have Equity she must do it 5. And lastly she has 
waived this pretended Agrem't & barr'd herself claiming the 
[2S3] Benefit of it by accepting the Provision piade for her by 
her Husband's Will For all these Reasons the Pit. has no kind 
of Pretence to Relief in this Case And trereiore I hope the Bill 
will be dismissed 

And it was dismissed by the Op in. of the whole Court praeter 
Grymes Carter & Blair — Light foot & Dandridge gave no Opin. 

April 1739. 

In this Case an Appeal was prayed for but the Pit. ackw. 
at the Bar her Son had reced the oOj^. mentioned in the Ans*r 
w'ch reduced her Demand under 300jf . Sterl. It was denied 

Banks a Banks & others In Cane, 

William Banks by his Will devises thus ** I give & bequeath 
" to my Son Ralph Banks (Conditionally that he no way alienate 
*' or transfer my Land hereafter mentioned to any other Use 



BARRADALL'S REPORTS B305 

* than to the Use & Uses that shall be by me herein declared) 

* all & every Part of my Home Dividend of L^md where I now 

* live Even to him my Son Ralph & the Heirs of his Body law- 
' fully begotten for ever meaning his Children present or here- 

* after to whom the Right & Inheritance of in & to the said 

* Land shall descend & go in Case they or any of them survive 

* him But in Case he survives all of them that my said Son 

* Ralph shall be at his own Liberty to will & devise the Premes 

* as he shall think fit 

The Question is Whether Ralph by this Devise took an Estate 
tail or only an Estate for Life and his Children an Estate in Fee 
in Jointenancy after his Death in Case they survived him 

And I conceive that Ralph took only an Estate for Life with a 
contingent Fee however in Case he survived all his Children And 
that such of his Children who survived him take an Estate in 
Fee in Jointenancy 

It seems needless to enforce that plain & almost uncontro- 
verted Doctrine that in the Construction of Wills the precise 
Form of Words is not so much regarded as the Intention of the 
Testor And that this Intention is to be collected from the whole 
Will To illustrate this by a Familiar Instance If a Devise be to A. 
& his Heirs in one Part of a Will Which Words we know make 
a Fee simple Yet if afterwards in another Part the Estate is 
limited to another in Case A. die without Issue It makes an 
Estate tail by Impl. & Constr. of the Testors Meaning collected 
from both these Passages or Clauses In this & 20 other Instances 
that might be mentioned It appears that latter Words or 
Sentences [284] in a Will may so controul or explain former 
Words as to give them a different Sense & Meaning from what 
they naturally or in strict Constr. of Law would bear It is 
indeed so known & plain a Rule in the Constr. of Wills that I 
am persuaded it will not be denied on the other Side 

To apply this to the present Case Here is a Devise to one & the 
Heirs of his Body This with't all Question would make an 
Estate tail if nothing followed or preceded to shew the Testor 
had another Meaning & Intention which I must now endeavour to 
shew But I will first beg Leave to read the whole Clause in the 
Will relating to this Devise 

I apprehend Sir upon the bare Reading It must appear the 
Testor intended something more than meerly to give his Son 
an Estate tail What need of so many Words for that Purpose 



B306 VIRGINIA COLONIAL DECISIONS 

when a single Line would have done I apprehend too it is as 
plain that the Testor intended the Inheritance (It is his own 
Expression) should go to all the Children of his Son who happened 
to survive him And then the Son could not take an Estate tail 
for if he did the Inheritance would be in him & go to his eldest 
Son alone 

There is nothing in the whole Clause that carrys the least 
Appearance of an Estate tail being intended to the Son but the 
Words Heirs of the Body And when it is considered for what 
Purpose the Testor made Use of those Words & what he meant 
by them as he himself has explained it It will be mighty clear 
as I conceive that he did not intend them as Words of Limitation 
or with any Design to increase or enlarge the Estate given to his 
Son but to quite another Purpose 

In the first Part of the Devise He gives to his Son Ralph with- 
out adding more Upon condition too that he sho'd not alien or 
transfer to any other Use than the Use & Uses mentioned in his 
Will It will be agreed that nothing more than an Estate for 
Life would pass to Ralph by these Words And I must submit 
whether this be not some Proof of the Testors first & primary 
Intention to give no more than an Estate for Life Then the 
Condition not to alien in my apprehension is a fiui:her Proof 
that he did not intend an Estate tail Since the most ignorant 
know that Tenant in Tail cannot alien or sell But it is not perhaps 
so well known that Ten't for Life with a contingent Fee (w'ch 
is the Estate I conceive the Testor intended Ralph) cannot sell 
And that might be the Occasion of adding this Condition Then 
he is not to alien to any other Use than the Use & Uses [285] 
in the Will Would a Man have expressed himself thus who in- 
tended nothing more than an Estate tail What could he mean 
by the Uses in his Will if that was his Intent & there was but one 
Use or Estate intended to [sic] given 

To proceed to the Will after this Devise to his Son & this 
Condition he adds ** Even to him my Son Ralph & the Heirs 
" of his Body for ever meaning his Children present or hereafter " 
Had the Devise gone no further than to the Heirs of his Body 
I agree it would have made an Estate tail but when he adds 
meaning his children &c. He has explained what he meant by 
Heirs of the Body viz. the Children present & hereafter Which 
is a clear Proof he did not intend the Words Heirs of his Body 
as Words of Limitation to encrease or enlarge the Estate given 



BARRADALL'S REPORTS B307 

to his Son but only as a Designation or Description of his Sons 
Children And therefore in our Law Phrase Heirs of the Body 
here cannot be taken as Words of Limitation but as Words 
of Purchase not to ncrease o* enlarge the Estate given to his 
Son but to point out other Persons he intended sho'd take by 
this Devise 

It is a very usual Thing in Wills to construe the Word Issue, 
Issue Male Heirs of the Body & such like to be Words of Purchase 
that is a Designation or Description of a Person intended to take 
It is a Rule of Law laid down in Shellys Case 160. 99. & other 
Books that where the Ancestor takes an Estate or Freehold a 
Limitation afterwards to his right Heirs or Heirs of his Body 
are Words of Lim & not of Purchase As a Devise to a Man for 
his life which is an Estate of Freehold & after his Death to the 
Issue of his Body This makes an Estate tail as was adj'd King 
a Melling 1 Vent. 225. But notwithstanding this Rule where 
Issue in such a Devise appears by the Testors Intention to be 
only Designation Personae There it shall be taken as a Word 
of Purchase And the Testors Intent shall prevail ag't this 
Rule of Law As in 

Archers Case 1 Co. 66. cited FitzG. 24. Devise to A. for Life & 
afterwards to the next Heir Male & the Heirs of the Body of such 
Heir Male It was adj'd that A. took only an Estate for Life 
And the Heir Male took by Purchase for Words of Lim being 
grafted on the Word Heir shew it was used as Designatio PersotUB 
& not for Lim of Estate (a). 

(o) So Ledington & Kjrme post. 

In a late Case betw. Pampillon & Voyce in 1728. before the 
late Master of the Rolls Devise to his Son for Life Rem'r to 
Trustees for his Life to support contingent Rem'rs Rem'r to the 
Heirs of the Body of his said Son. Reversion to himself in Fee 
Decreed the Son had only an Estate for Life And that th H irs 
of his Body sho'd take by Purchase Abr. Ca. in Eq. 184. 30. 

See also Bamfield & Popham Id. 133. 24. — Backhouse & 
Wells cited in Shaw & Weigh FitzG. 22. Clerk & Day Ibid. 
24. And Raymonds Argum't in that Case 

[286] In all these Cases the words Heirs of the Body Issue 
Male & Heir Male were construed to be Words of Purchase 
notwithstanding the Rule of Law before mentioned The Testors 
Intention appearing to be so which Intention in the two first 



B308 VIRGINIA COLONIAL DECISIONS 

Cases was collected principally from his grafting the Inheritance 
on the Estate given to the Issue And so they are Cases directly 
in Point to prove 1. that in a Will Issue Heirs of the Body et 
similia are often taken as Designatio Personce or Words of Pur- 
chase And 2. Especially where it appears the Testor intended 
the Inheritance sho'd go to & vest in the Issue which is the Case 
here as I shall shew presently 

In the Case of Shaw & Weigh before mentioned the Qeustion 
was whether Issue should be taken as a Word of Limitation or 
Purchase Lord Raymond who delivers the Opinion of the Court 
observes fo. J24. 25. that Issue in a Conveiance is a Word of Pur- 
chase But in Wills it is governed & directed by the Intent of the 
Party And adds when Issue is Designatio personce It can cany 
only an Estate for Life to him whose Issue is to take by such 
Designation 

Now in the Case before us nothing can be clearer than that 
by Heirs of the Body the Testor intended no more than a De- 
scription of his Sons Children He has told us so himself meaning 
says he his Children And then by the Rule laid down by Raymond 
the Son can take no more than an Estate for Life But when we 
consider what follows the Word Children in the Will the Matter 
seems to be put beyond all Doubt or Question The W^ords are 
** To whom i.e. the Children the Right & Inheritance of in & to 
the said Land shall descend &go in Case they or aeny of them 
survive him 

Here are words of Inheritance grafted upon & annexed to the 
Word Heirs or Children And therefore expressly the Reason 
of Archers Case & the Case of Lodington & Kyme before cited 
where the Words Heirs Male & Issue Male are construed Words 
of Purchase even ag't an established Rule of Law that they shall 
be Words of Lim where the Ancestor takes an Estate of Freehold 
meerly because the Inheritance is limited or grafted upon the 
Estate given to the Issue Here the Testor has expressed himself 
in the clearest Terms that the Inheritance shall descend to the 
Children And so the Case is rather stronger than those As it 
does ex vi termini & in the most obvious Sense exclude the Father 
from taking the Inheritance 

Further the Inheritance is not limited to the eldest Son which 
would make it look more like an Estate tail but to the Children 
present & future if they or any of them survive him The Words 
Children present & future & They or any of them shew he in- 



BARRADALL'S REPORTS B309 

tended [287] an equal Benefit to all the surviving Children & not 
that one should run away with the whole as he will do in Case 
Ralph is construed to take an Estate tail 

In a few Words Can there possibly be a Doubt of a Mans 
Meaning & Intention who gives Land to his Son & his Children 
And then declares that the Inheritance shall descend to the Chil- 
dren after the Fathers Decease which is the Sum & Substance of 
the Devise before us What can be intended by such a Devise 
but an Estate for Life to the Father & a Fee to the Children 

To construe this an Estate tail in Ralph AH the latter Part of 
the Clause where the Testator declares the Inheritance shall 
descend to the Children must be entirely rejected & thrown out 
of the Question contrary to a known & established Rule of Con- 
struction that a Will shall be so construed as to make all the 
Parts of it stand & all the Words have some Effect if they are 
significant & sensible FitzG. 23. Fr. Raymond Now that these 
Words are significant & sensible- can not be disputed Nay they 
have a plain apparent & express Meaning & therefore they must 
not be rejected And I insist upon it that they cannot have any 
Effect or Operation but by the Constr. I contend for Which 
Constr. gives them the Force & Effect they were intended for & 
is plainly expressed viz. that the Children shall have the Inheri- 
ance. 

As the whole Will is before the Court I must beg Leave to take 
Notice of a Circumstance w'ch may serve further to shew the 
Testors Intention There was an elder Son than Ralph the De- 
visee to whom the Testor gives 50;^. in Bar from ever claiming 
any Part of his Estate From whence I think it is plain he in- 
tended to exclude this eldest Son entirely from the Inheritance 
But if this is construed an Estate tail in Ralph There is a Rever- 
sion expectant undisposed of & which descended to the eldest 
Son So that upon a Failure of Issue in Ralph the Estate would 
come to him This cannot well be supposed to be the Testors 
Meaning when he has given such a Legacy to his eldest Son 
in Bar of his claiming any Part of his Estate Now by the Constr. 
I contend for the Fee simple vested either in Ralph if he survived 
all his Children or in the Children if they survived him And 
so there is nothing left to descend to the eldest Son 

Upon the whole I conclude that the Words of the Devise before 
us can never be satisfied but by construing it to carry an Estate 
for Life to his Son with a Rem'r in Fee to such of his Children 



OS f ••> k . * tr . J^ . — ■>. .^it >.... k - « r^ ^ A ^Jr — . ^N.^ A ZnrZ... A x c^ •. w* 

r:: T . -:ri»:-:i ii^* C.-ziinrrrjry ^n? 1 say 1 aT^rrr>eni i:r=5i t>e 
the C'--nrLr- fr:m irrr F :-r:^ ic ibe IS'icis zrz^zz. vberioe ire are 

It '2^v' Ravrr:— i L^eTn?^ r: A. ::r Lrfe A-f =: Case he shaZ 

^ *■ ' ' 

have Israe Male i: ?:::h Is?:ie VaSe i: his Herrs :;-r ever Ani if 
be iie -KT-b'.nt Isnie \!ale Red r ZTer Ai; i that A- took cnly 
ai: Enate f'-T Life Ani •hat the Ii?ue t:»:k by Purchase the In- 
bentai::^ being armexei 5l hrritc-i ^c the W:rd Issue 

In this Case the C.-urt vere aZ clear-v of Ch>iii::n that the 
Testc/T intended r.L:hir.z t=i:re than an Estate tan to Ralph 
And that what -was aifei after Heirs of the Body should be 
re3e-ct>ed as snp'erfuins Ani s.:* the Bill was dismissed April 

Which I think a right Judgment . 

Vass ag't Phillips 

John Pen by his WiH Jan. 13. lOT^V de\-ises thus *' I give & 
** bequeath to Ann Sharpe my Plantation &c " (the Premes 
in Question ■ And after other Bequests follows this Clause ** And 
'* for my Land w'ch I have given to Ann Sharpe if it should 
" p!ease God to die without Issue I give to my Friend Tho's 
" Harwar Otherwise to she & her Heirs forever" 

The Question is What Estate Ann Sharpe took by this 
Devise Whether an Estate tail or a Fee simple upon the Con- 
tingency of leaving Issue at her Death If the former the Pit. 
has a good Title Othen^-ise not 

It must be agreed that by the first Part of this Devise Ann 
t^y^k only an Estate for Life And it will be further admitted 
I presume that if the second Clause had gone no further than the 
Lim.tation over to Harwar It would have been clearly an 
Estate tail in Ann The Doubt then & Difficulty if there is any 
in the Case must arise from these latter Words ** Otherwise to 
she & her Heirs forever "Whether these Words shew an In- 
tention in the Tester to give any other Estate to Ann than 
would have passed by the first Words if these had not been added 
And I conceive not but that he intended an Estate tail & no other 
Estate to Ann 

It is a common Doctrine that the Intent of the Testor is the 



BARRAD ALL'S REPORTS B311 

Rule & Guide for expounding of Wills That this Intention is 
to be collected not from any particular Sentence or Clause but 
from the whole Will taken together And that to serve this In- 
tention even Sentences are sometimes transposed 

It is also a well known & settled Point that Issue in a Will 
always [289] imports & is taken to mean Heirs of the Body 
They are Terms equivalent & indeed are so taken in divers Acts 
of Parliam't as Westm. 2. De Donis & 34. H. 8. of Intails settled 
by the Crown 1 Vent. 229 

This being premised I shall proceed to consider the Devise 
before us The Testor when he first disposes of the Land to 
Ann limits no Estate And consequently she could take only an 
Estate for Life by that Part of the Devise as has been observed 
Then when he comes to enlarge this Estate for Life & give an 
Estate of Inheritance it is remarkable he makes Use of the 
Word " Issue ** If she dies with't Issue Rem'r over which is the 
same as if he had sayed with't Heirs of the Body This I think 
plainly shews that the first & primary Intention of the Testor 
was to provide for Ann's Issue as well as herself for it will be 
granted me that this Limitation over upon a Dying with't 
Issue would make an Estate tail if the Will went no further 3 
Danv. 180. 7. 9. 181. 12. 1 Vent. 229. FitzG. 12. 25. 

It is indeed an Estate tail by Impl. only but then it is by a 
plain & necessary Impl. of the Testors Intention that the Issue 
sho'd have the Land till the Rem'r took Place And in a Will 
it is not material whether an Estate be given by Impl. or express 
Lim It is the Intent alone that is to be regarded So that there 
is really no Difference betw. a Devise to one & his Issue and a 
Devise to one & if he die with't Issue Rem'r over Only in the 
first Case he has an Estate tail by express Lim & in the other 
by Impl. FitzG. 12. 

If then this Devise be considered as a Devise to Anu & the 
Heirs of her Body or Issue which is the same I would ask whether 
when the Testor in the latter Part of the Clause comes to speak 
again of Ann & her Heirs It is not reasonable to suppose he 
meant the same Heirs he had just mentioned before If he did 
there is an End of all Doubt & Difficulty in the Case 

And that he did mean the same Heirs I think may be fairly 
collected from the foil. Cons. 1. We know that in common speech 
Heirs are generally applied to a Persons Children If a Man 
leaves no Children it is common to say he left no Heirs And 



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,^ ',\\\:.'/:.^rc. a J'rr.r.inzs 1 S^- 2-]-L. EKevise to the yrunger 
V.:, ^ h:^ l:'r:r* :or*:ver And for T^'ant c: ?uch Heirs then to his 
//V,r, r;;fr.* H'::r^ Ad;''! an Estate tail in the Ssn for the Tester 
f;/;:* rr.'-^r, if'::r's of the Boc^- because the Son could not die 
v./h't H'::r>, jf':r/I living Heirs of the Father 

Y,\x//^ a P'rrr.r.all I Ro. A. S:iO. 7. A man devised Land to his 
// />;iij 'r«i Ar;*^! if ^rith'rr dved before the other the one to be the 
h^\,rn ll'-AT AT,f] if th^:y all died with't Issue Rem'r over Adj'd 
tJi^' l)iiti*rH had an Estate tail for the latter Gause if they die 
v/jthotit l</.uf: explains what Heirs were intended where it is 
tiif/ff] that (juh sho'd }yc Heir to the other 

l'\if"yft (lii^.t'S I think serve to prove two Points 1. that the 



BARRADALL'S REPORTS B313 

Word Heirs in the Understanding of People unskilled in the Law 
or in Comon Speech as we say imports the same as Issue or 
Heirs of the Body and 2. that the Word Heirs in a Will is often 
taken to mean Heirs of the Body And the last Case proves further 
that where the two Terms Issue & Heirs are both made Use of 
in the same Devise It is taken that the same Heirs are meant 
in both Cases Indeed the common Case of a Devise to a Man & 
his Heirs & if he die with*t Issue Rem'r over puts this last Point 
beyond Contradiction for it was never denied but that such a 
Devise made an Estate tail And that Heirs in the first Part of 
the Devise sho*d be intended such Heirs as are mentioned 
afterwards viz. Issue. 

And it is not material I take it whether Issue happens to be 
mentioned first or last. The Intention is collected from the 
Word more than the Manner of placing it As 

A Devise to a Man & the Heirs of his Body And if he die with*t 
Heirs Rem'r over makes an Estate tail (2 Vern. 281. [291] per 
Cur.) tho Heirs of the Body are mentioned first & Heirs last for 
it is supposed the same Heirs are intended in both Places 

Indeed the first Words in a Will are often taken as the best 
Expositors of the Testors Meaning and to serve as a Guide to 
those that follow as in Buck & Frenchmans Case 1. And. 8. (It 
is Tuck & Frenchman in Dy. 171) Devise to his Wife for Life 
Rem'r to his Cousin & the Heirs Male of his Body And if he dye 
with't Issue (not saying male) Rem'r over Adj'd the Cousin 
had only an Estate in tail male for tho' the latter Words If he 
die without Issue would make an Estate tail gen'l Yet Heirs 
Male being mentioned before shew the Intention what Heirs 
were meant In Godb. 16. It is sayed the same Point was adj'd 
betw. Glover & Tracy 

Which last Cases prove that Issue or Heirs of the Body being 
named first or last does not differ the Case but a special Heir 
being once named it is reasonable to suppose the same is intended 
by the gen'l Term Heir And there may perhaps be this further 
Reason too for such a Constr. that by Heirs comon People 
generally intend Issue or Heirs of the Body. 

But it will be objected to me I suppose that by this Constr. 
the latter Words in the Devise Otherwise to she & her Heirs 
forever are quite useless Ann would have had an Estate tail with't 
them And it shall never be supposed a Man intends to make a 
fruitless Devise 



B314 VIRGINIA COLONIAL DECISIONS 

I ans'r it is no uncommon Thing to meet with Tautology & 
useless Repetitions in a Will Sometimes Words that are perhaps 
strictly unnecessary are added for the clearer Manifest 'a of 
the Testors Meaning And sometimes & that very frequently 
thro' the Unskilfulness of the Writer We are to consider that 
Wills are supposed to be made & indeed often are in Extremis 
In a Mans last Moments when he has not Opportunity for 
good Council or Advice & so are wrote by Men unskilled in the 
Law It is for this very Reason that so great a Latitude is 
allowed in the Constr. of Wills & strict & legal Forms dispensed 
with 

Now these Words might be added either by the Direction of 
the Testor Ex abundanii to shew more explicitly his Intention 
to give Ann an Estate of Inheritance which she had only by 
Impl. before but then whether he did not mean the same kind 
of Inheritance he had mentioned before is what must be sub- 
mitted 

Or these Words might be added thro' the Unskilfulness or 
Wantonness of the Writer currente Calamo as we say FitzG. 29. 
And supposing either of these to be the Case the Addition of 
them can weigh nothing 

But taking this Obj. in its full Strength allowing these Words 
to be quite unnecessary to give an Estate tail to Ann which I 
must grant Yet on the other Hand if it be considered that 
here is an apparent Intention that the Issue of Ann sho'd have 
the Land it must be submitted [292] whether so plain an Inten- 
tion ought to be defeated by a Constr. collected from Words 
the Meaning of which at best is doubtful Especially when another 
Constr. may be made of those Words consistent with the appar- 
ent Intention The Question in short is W^hether it be better 
to follow Certainty or Doubt & Incertainty It is certain an 
Estate tail will pass by the first Part of the Devise It is at best 
but incertain what was intended by these latter Words 

The Case of Banks & Banks (ante 283) heard the other Day 
in this Court cannot be forgot 

I rely on the Limitation over to Harwar in Case Ann die with't 
Issue as what makes an Estate tail in Ann The Words Dying 
with't Issue where they are general & indefinite not circum- 
scribed by Time nor tied up to any Contingency alwa3rs make 
an Estate tail in a Will I grant there are many Cases where 
the Lim is upon dying without Issue before 21 or living another 



BARRADALL'S REPORTS B315 

or without Issue living that in leaving Issue at his Death that 
it has been adj'd no Estate tail was created by those Words 

Dying without Issue as Pell & Brown Cro. Jac. 590. which was 
a Devise to one Son And if he died with't Issue living another 
Son Rem'r over Hall & Deering Hard. 148. Devise to one & his 
Heirs & if he die without Issue before 21. Rem'r over Collenson 
& Wright 1 Sid. 148. where the Rem'r is limited upon dying 
before 21. & without Issue living In all these Cases the 1. 
Devisee was adjudged to have a contingent Fee because the 
Dying without Issue could not be taken as Words of Lim being 
either circumscribed & limited to fall within a certain Time or 
tyed up to the Contingency of happening in the Life of another 
But I think I may venture to say that there is no Case where 
the Dying without Issue is absolute & indefinite as here that 
these Words have been taken as Words of Contingency or to 
speak more properly as Words of Determination but have' always 
been taken to be Words of Lim either to enlarge or qualifie the 
Estate given before I make Use of the Word Determination in 
Opposition to Lim The latter has been just explained By the 
form'r I mean where the Dying without Issue is constr. to be 
only an Indication of the Testors Mind when he would have a 
particular Estate given before determine & another Estate 
given afterwards commence As in the Case just now cited of a 
Devise to one & his Heirs And if he die without Issue before 21 
Rem'r over Here the Devisee has an Estate in Fee determinable 
upon his dying with't Issue before 21 . If he dies before that Time 
his Estate determines & the Rem'r commences And so in most 
of the Cases upon this Subject the Question is whether Dying 
without Issue are to be considered as Words of Lim or of Determ. 
Hard. 148. 

[293] Now to consider the Case before us in this View whether 
Dying without Issue are to be taken as Words of Lim or of 
Determ It will I think be pretty evident they could never be 
intended the latter for by the 1. Part of the Devise Ann has only 
an Estate for Life And if Dying without Issue are construed as 
Words intended to shew when that Estate sho*d determine 
this Absurdity will follow that Ann took an Estate for Life 
Determinable upon her Dying without Issue Now the Rule is 
that a Testor shall never be supposed to intend Absurditys 
And therefore any Constr. having such a Tendency ought to be 
rejected Then I believe in all the Cases where Dying without 



B316 VIRGINIA COLONIAL DECISIONS 

Issue are construed Words of Detenn an Estate of Inheritance 
was given before. Q CoUenson & Wright seems not so 

I beg Leave to observe further the Force of the Words Dying 
with't Issue where they are general as here I know no Instance 
where they have not been adjudged to make an Estate tail And 
that sometimes ag't a seeming Intention of the Testor to the 
contrary As where an express Estate for Life is first limited 
which is the Case of King & Melling 1 Vent. 214. 225. In Hales 
Time The Case was a Devise to the Son for Life And after his 
Decease to the Heirs of his Body by a 2. Wife And for Want 
of such Issue Rem'r over with a Proviso that the Son might 
make a Jointure to his 2. Wife Here was an express Estate for 
Life The Lim to the Issue was after the Sons Decease And there 
was a Power to make a Jointure which was unnecessary if an 
Estate tail was intended Yet notwithstanding these Objections 
such was the Force & Operation of the Lim to the Issue And for 
Want of Issue RemV over that it was adj'd to make an Estate 
tail in the Son This is looked upon as a leading Case and the 
Authority of it has never been shaken 

So in the Case of Shaw & Weigh FitzG. 7. heard in the House 
of Lords April 1729. which as to this Point was a Devise In 
Trust for his 2 Sisters during their Lives without committing 
Wast And if either of them happen to die leaving Issue or Issues 
Then in Trust for such Issue or Issues of the Mothers Share 
Or else in Trust for the Surviv'r or Survivors of them & their 
respective Issue or Issues And if both my said Sisters die 
without Issue & their Issue or Issues die without Issue Rem'r 
over Here it was obj . that an express Estate for Life was given 
& the restraining from committing Wast was a plain Indication 
in the Testor to pass no greater Estate for it would have been 
impertin't to add such a Clause if he intended an Estate tail 
because such a Power is incident to an Estate tail And it could 
not be thought he would restrain from committing Wast And 
yet put it in their Power to alien the whole Land as Ten't in tail 
might do by docking the Intail. There are other Circiunstances 
in the Devise that are taken Notice of to prove the Testor 
intended only an Estate for Life But it was argued on the other 
[294] Side that the Word Issue in a Will is a Word of Lim & 
being devised first to the Sisters & afterwards to their Issue And 
for Want of Issue Rem'r over it made an Estate tail And so it 
was adjudged. 



BARRADALL'S REPORTS B317 

These Cases shew how forcible Issue or a Lim upon dying 
without Issue are in a Will They create an Estate tail by Opera • 
tion of Law as Hale said in King & Melling supra Went. 232. 
*Tis possible the Testor intended but an Estate for Life Yet by 
Consequence & Operation of Law it is an Estate tail according 
to the Rule in Shellys Case 1 Co. 99. Where the Ancestor takes 
an Estate of Freehold And there is a Lim afterwards to his Right 
Heirs or Heir of his Body that they are Words of Lim & not of 
Purchase Issue in a Will is equivalent to Heirs of the Body 
And it matters not whether an Estate given by Will be by Impl. 
or express Lim & therefore according to this Rule A Devise to 
one And if he die with't Issue Rem'r over would make an Estate 
tail by Operation of Law if there was not so apparent an Inten- 
tion from the Words as I conceive there is in the present Case. 
But we have no Occasion to rely on the Operation of Law Because 
no express Estate for Life is given And so our Case is stronger 
than either of those last cited. 

I must not omit to mention the Case of Timson & Robertson 
Adj'd this Court which was a Devise to one & his Heirs And if 
he died before 21 or without Issue Rem'r over Here notwith- 
standing there was a seeming Intention to restrain the dying 
without Issue to the Age of 21. Yet it was held to be an Estate 
tail The words there in my humble Opinion were much stronger 
to create a contingent Fee than in this Case 

Obj. The Testors Intention is plainly this First to give Ann 
an Estate for Life Then if she happen to die with't Issue to 
Harwar Otherwise that is if she leaves Issue at her Death 
to her in fee And so she took a Fee simple upon the Contingency 
of leaving Issue at her Death 

Ans. By this Constr. the natural Force & Import of the Words 
Dying with't Issue must be rejected Had the Words been if she 
happen to die leaving no Issue or without Issue living or any 
other Word added to shew that he intended to restrain the 
generality of the Term Dying with't Issue there might have been 
some Colour for such a Constr. But it being left absolute & at 
large here To make such Constr. must confound the Distinction 
that has been always kept up betw. a Lim upon dying with't 
Issue generally & where it is restrained to a particular Time 
or tied up to some Contingency The Cases that I have cited 
and all the Cases that can be cited will shew they turn upon this 
Distinction. Besides as it was so easie for the Testor [295] to 



B318 VIRGINIA COLONIAL DECISIONS 

have added a Word or two in Case he had any such Intent It 
is reasonable to infer from his not doing so that he had no such 
Intent. 

As for any Stress that may be laid upon the latter Words 
** Otherwise to she & her Heirs for ever *' It has been answered 
already They might be thrown in thro' the unskilfulness of the 
Writer Or they might be superadded to shew more expressly 
the Testers Intention to give Ann an Estate of Inheritance 
But then we say having made Use of the Word Issue before 
in the same Clause It is natural to conclude he meant the same 
Heirs in both Places 

We think it apparent the Testor had an Intent to provide for 
Ann s Issue as well as herself That he never intended the Rem'r 
to Harwar sho'd take Place so long as there was any Issue of 
Ann Ahd in Consequence that he intended the Issue sho'd have 
it in the mean time till the Rem'r took Place And then it is clearly 
an Estate tail We think this appears to be his first & primary 
Intent And we submit whether Constr. ought not to be made 
to serve that Intent rather than a different one prevail that will 
entirely destroy it And we hope it will be considered that this 
latter Constr. is to be inferred only from a few loose Words added 
perhaps by Chance And w'ch at the same time may very well 
bear an Interpretation consistent with the Constr. we contend 
for. 

We rely on the Case of (a) Banks & Banks where superfluous 

(a) Ante 283. 

Words added after the Lim of the Estate tail were rejected 
Because the meaning of them was doubtful And upon the Case 
of Timson & Robertson where the Words ** Dying before 21 " 
were rejected to make way for the more express Intent collected 
from the Words Dying without Issue to make an Estate tail 

Obj. But the Rem'r to Harwar gives him only an Estate for 
Life And it is absurd to suppose the Testor would give such 
an Estate after an Estate tail 

A. This is no uncommon thing in Wills often (as has been 
observed) wrote in a hurry & without Council or Advice In 
the Case of Webb & Herring cited above the Estate given to the 
Dau'rs in case they survived the Son & his Heirs was expressly 
for their Lives Yet this was made no Obj. but adj'd an Estate 
tail in the Son Even where the Rem'r has been adj'd void in 



BARRADALL'S REPORTS B319 

point of Lim Yet it has been adj'd an Estate tail by force of the 
Rem'r as Nottingham a Jennings ante 1 Sal. 233. So that noth- 
ing can be inferred from the Nature of the Estate given to Har- 
war to shew the Testors Intent one way or other 

Obj. A latter Devise controul a former And here the latter 
Words give a fee 

Ans. I agree where two Devises are inconsistent with each 
other As where by the first Land is given to A. & by the second 
to B. There [296] perhaps the latter Devise shall prevail That 
which is last wrote being presumed to be the Testors last Will & 
Mind But this Rule cannot hold where the same Thing is twice 
devised to the same Person There it is to be collected from the 
whole Will what Estate the Testor intended to pass And it is 
not always the last any more than the first that is regarded 
This is evident from the Case of Buck & Frenchman ante The 
1. Devise was to the Heirs male the latter to the Heirs of the 
Body Yet it was held to be an Estate in tail male Here the first 
Words guided the Constr. In King & Remball ante Heirs are 
mentioned in the 1. Devise & Issue in the latter This was adj'd 
an Estate tail Here Constr. was made from the latter Words 
From these Instances it is plain that the Intent is collected from 
the whole Will And sometimes the first sometimes the last Words 
govern the Constr. 

Obj. An express Estate shall not be destroyed by an Estate 
by Impl. 

Ans. That is true taken thus: An Impl. of an Estate of 
Inheritance shall not ride over an express Lim of an Estate 
of Inheritance before 1 Vent. 230. per Hale This was I take it 
the reason of the Resolution in Popham & Bamfield 1 Sal. 236. 
Devise to A. for Life Rem'r to his first Son in tail male & so on 
to the tenth Son And if A. died without Issue male Rem'r over 
Here A. having an an Estate for Life & an Estate of Inheritance 
being limited to the Sons they could not collect a contrary Intent 
by Impl. to give A. an Estate tail. 

But it is far from being a gen'l Rule that an Estate by Impl. 
shall never prevail ag't an express Estate The contrary is 
evident from the Cases of King & Melling & Shaw & Weigh 
before remembered As well as from the Common Case of a Devise 
for Life And if he die with't Issue Rem'r over which was never 
denied to make an Estate tail notwithstanding the express 
Estate for Life FitzG. 12. Apr. 1739. Judgm't was given for the 



B320 VIRGINIA COLONIAL DECISIONS 

Deft. viz. that it was an Contingent Fee having been so adj'd 
once before in 1730. The Courts Opin. seemed to turn upon the 
Word Otherwise which they sayed shewed plainly an Intention 
to give a different Estate if Ann had Children. 

For the Pit. For the Deft. 

Lee, Tayloe Lightfoot, Randolph 

Custis & Digges Dandridge, Grymes 

Carter Byrd & Blair 

[297] OCTOBER COURT MDCCXXXIX. 

Smith a Smith Ej. 

Mary Smith seised in fee Mar. 2. 1702. makes a Deed poll 
in these Words ** For the natural Love & Affection that I bear 
to my Son Geo. Smith I do make this my Deed of Gift of the sd. 
200 A. of Land (the Premes in Question) unto him the s'd Geo. 
Smith & his Heirs forever after my Decease But it is my true 
Intent & Meaning to have free Ingress & Egress into all & every 
Part of the s'd Premes during my natural Life And if it shall 
happen that the s'd Geo. Smith shall die without Heirs Then I 
give the s'd Land to my Son John & his Heirs forever " 

G. Smith died with't Issue in the Life of the Grantor After 
whose Death she with her 2d Husband Fairfax conveied the 
Premes in Queon to the Deft. & is since dead The Lessor is 
Bro'r & Heir of Geo. Smith 

The only Question in this Case is Whether any Estate passed 
to Geo. Smith by this Deed for if any Estate did pass I think 
it cannot be disputed but that it was a Fee simple And then the 
Lessor of the Pit. as his Heir has a good Title 

The Objection I apprehend will be that the Estate being 
limited to him after the Death of his Mother is void For that 
a Freehold can not be limited in prcesenti to commence in futuro 

It must be agr'd that the Maxim of the Comon Law is A 
Freehold shall not commence in juiuro But since the making 
of the Statute of Uses the Maxim has in a Manner lost all its 
Force & Effect for it is universally agreed that the Maxim will 
not hold upon any Conveiance by Way of Use but only in Con- 
veiances at the Comon Law as we call them It will be therefore 
necessary to see whether this Deed is to operate as a Conveiance 
at Com Law or as a Conveiance to Use 



BARRADALL'S REPORTS B321 

The Distinction between these two kind of Conveiances is 
well known Conveiances at Com Law are such as were in Use 
& Practise before the Stat, of Uses 27. H. 8. Conveiances to 
Use are such as have been introduced since the making of that 
Statute The different Rules of Construction upon the one & 
the other of these Conveiances are as [sic] well known Conv. 
at Com Law are construed strictly according to the strict & rigid 
Rules of the Com Law But Conv. to Use are allowed a more 
liberal Construction They participate in some sort of the 
Nature of Wills They are construed according to Equity & 
the just Intention of the Parties The reason of this Difference 
I shall have Occasion to shew presently 1 Inst. 49. a. 1 Vent. 
138. 373. Nel. Sut. 242. Poll. 525. 8 Rep. 93. 3 Lev. 370. 

But I will first beg Leave to examine a little the reason of 
the Maxim just now remember'd viz. That a Freehold shall 
not commence in futuro It is regulariy a Rule of Law that the 
Freehold shall never be put in Abeiance that is so as not to be 
existing in some Person And both this Rule & the Maxim we 
are speaking of are [298] founded upon this reason that there 
may be always a Tenant to the Precipe I say regulariy the 
Freehold shall not b? in Abeiance because in some Instances 
Ex necessitate rei it may be so As where an Incumbent dies till 
the Church is full again &c. Co. Litt. 342. 343. 

For the clearer Understanding of this it may be necessary to 
explain what is meant by Tenant to the Precipe Anciently till 
within 200 Years or less Where a Man was disseised or had a 
Title to Lands he had no Remedy to recover the Possession but 
by a real Action (Ejectments are an Invention of later Times) 
Now the first Process in real Action is called a Precipe And the 
Law requires that the Deft, or Person ag*t whom such Precipe 
is brought sho'd have a Freehold in the Land whence he is called 
Tenant i.e. Tenant of the Freehold It is obvious then that if 
the Freehold could be put in Abeiance so as not to be existing 
in any Person A Man who had a Right to recover the Possession 
of any Lands could have no Remedy for want of a proper Person 
ag*t whom to bring his Precipe And this would be the Conse- 
quence of it in a Conv. at Com. Law a Freehold might be 
created in prcesenti to commence in futuro Because in all such 
Conveiances there is a Transmutation of Possession And no 
Estate left in the Grantor And therefore as the Freehold would 
be out of him by the Conveiance if it should be allowed to be 






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• — 

V-'/'h.r^. •', t'or V:',-*^r_:*: "hat :l5 ibr Enaie intcniel t-: 're rassei 

.- 4,. ^/ *t .- -rSt - . *» > A.- -S "T J^ T^ -.. ^SiiSv^.. i. O LXT • . Ot *- 

i - ^ ♦V-,— ■^.•-— ^ .- ^ *"_:,-£.-« '^*.^'«- "--«i;i'"~»*^ '— *-,s. 'A a V %«~ as •^ r^Vt* 

* »• »» • « a «» • m 

Vi'av Ar.'f •?.:% v.Tr.^tirr.r^ az't tr.e serrr.rr.g^ Litenticn cf the 
Pan:/'.? an *,/> th^ rr.ar.r.^r if Oz^eratim Thev ccnsiier ihe 
\/:\rjr.y^. \r*,hr,\v.r. that is the Passing of the estate Ani c-c-n- 
*tr-i': th'r I>:':'i SO as to fulnl that Intent: :n And they will 
\'^f'i\ rj"'rT s'-iff'rr a De^d to be defeated or to have no Effect 
'\i hv ar,v M^ans th^rv can constme it so as to give it the Effect 
ir.Vrr.^'"d I»rd Hobart who lived about IW years ago commends 
thv'/r J'i']y/-s viYiO are curious & even subtil to invent Reasons & 
M'-ar.s to rraici D^-eds effectual according to the just Intention 
of the Parties Hob. 277. And Sir M. Hale quotes this Passage 
upon tv/o Occasions as an excellent Rule for Judges to follow 
1 V/nt. 141. 378. 

The Ij^r-d l^rfore us can operate onlv 3 wavs Either as a Feoff- 

I ^ ^ 

rnent a Bar^^ain & Sale or a Coven't to stand seised the first is 
a Conv. at G^^mon Law the two latter are Conv, to Use Every- 
bo<^ly knows that Livery of Seizin is necessary to a Feoffment 
Arjd that in Conv. to Use there must be a good Cons, to raise 
the Use This Deed cannot operate as a Feoffment for want of 
Livery It cannot operate as a Bargain & Sale for Want of a 
l;roj>er Cons. viz. the Paiment of Mony which is the only good 
Cons, to raise an Use by Way of Barg. & Sale 1 Vent. 137. If 
therefore it do(!S not operate as a Coven't to stand seised it must 
be absolutely void & can have no Effect at all The Intention of 



BARRADALUS REPORTS B323 

the Grantor in making it must be entirely defeated And how 
consistent that will be with the constant Resolutions of^ the 
Judges will best appear from the Cases themselves 

The first I shall take Notice of is Tebb & Popplewell 2 Ro. 
Abr. 786. (40. Eliz) A Woman in Cons, of Marriage to be had 
between her & one F. by Deed inrolled gave granted & confinned 
Land to A. & his Heirs with Clause of Warranty but no Livery 
was made The Deed being inrolled shew'd an Intent it sho'd 
operate as a Barg. & Sale The Words give & grant & confirm 
which are proper to Conv. at Com. Law shewed an Intent it 
sho'd operate as a Feoffment But because it could not operate 
as the latter for Want of Livery nor as the former for want of 
a good Cons. viz. Mony Therefore rather than the Deed should 
be void it was adj'd a good Use did arise to A. by Way of Coven't 
to stand seised there being a Cons, proper to raise an Use in such 
a Conv. viz. Marr. N. B. It is not expressly sayed to operate as 
a Cov't but it could no other Way. Poll. 534. takes it so 

The next that I find in Order of Time is not till after the 
Restoration viz. 22. Car. 2. Crossing & Scudamore 1 Vent. 137. 
2 Lev. 9. 1 Mod. 175. A Man in Cons, of natural Love gave 
granted barg. sold aliened enfeoffed & confirmed to his Dau*r & 
her Heirs There was a Cov't for quiet Enjoym't & a Warranty 
in the Deed And the same was Inrolled It was obj. as in the 
last Case that the Deed could not operate as a Barg. & Sale for 
Want of Cons, that the Words of the Deed & the Cov't & Warr. 
were proper to Conv. at Com. Law And it was not the Intention 
the Est. sho'd pass by Way of Use But it was adj'd that the 
Words give & grant &c. would raise an Use And that since it 
could not operate as a Barg & Sale it sho'd as a Cov't to stand 
se sed Notwithstanding the Inrollment rather than the Deed 
sho'd be defeated. 

[300] 29. Car. 2.) Walker & Hall 2. Lev. 213. A Man in Cons, of 
Marr. gave granted & conf . to his intended Wife with a Lre of 
Atto. in the Deed & a Blank for the Attorneys Name A mem. 
was indorsed that Livery was made by but no Witnesses 

to the Livery Here it was obj. that the Intent appeared plainly 
to make a Conv. at Com. Law viz. a Feoffment But because 
the Deed could not operate as such for Want of Livery It was 
adj. to enure as a Cov't to stand seised that the Deed might 
have its Effect. 

30. Car. 2.) Coltman & Senhouse 2 Lev. 225. 2 Show. 11. T. 



B.:;24 VIRGIN'LV COLONIAL DECISION'S 

Jo. iO-x VJ... 523. A- ty Inine betw. bin & his Mother cove- 
r.ar.tec & a^-reed ihat if he died with cut Issue of his Bodv That 
then he gave grhnze-^ & cor. rnr.ed to his M:ther There were 

se% .. v.^** »b ^TZfi/T »o k.ms ixi &ne x^^eeo &rc'in v^iL^e jl*c ^^^ y •.o ^^^e dou 
Ai:d the Cons. ex::res5ed was fcT the Advancem't of the Son 
The Qhiestioc was Whether this Deed sho'd cperate as a Cov't 
Uj stand seised And tho' it was cbj. thai it seemed rather an 
Agreem't to compose Matters betw. Moth. & Son & that it 
rested onlv in Cov't & there was no Cons, to raise an Use to the 
Mother Yet it was adj'd that a good Use was raised bj' Way 
of Cov't to stand seised That being the Intent of the Parties 
And saved that where the Intent app'rs to pass an Estate but 
the Conv. is defective it shall be supplied & made good bj* Way 
of U e to fulfil that Intent And here the Intent was manifest 
that the Moth'r sho'd have the Esta. if the Son died with't Issue 

N. B. the Judgm't in this Case is misprinted in Poll, being 
sayed to be for Pit. instead of Deft. All the other Rep'ts are so 
And the Case is alwa3"s cited as so adj'd 3 Lev. 372. 

The Argum't & Judgm't here are full to both Points of this 
particularly in Poll, quern lege 

1 W. & M J Harrison & Austin Comb. 128. Carth. 38. 2 Mod. 
237. A. by Deed Poll reciting that he had no Issue & that it was 
his Intent if he died with't Issue that his Lands sho'd remain in 
his Blood & Kindred In Cons, of natural Love gave granted & 
conf. to B. his Neice To the Use of himself for Life Rem'r to 
the said B. in tail Afterwards he made a Feoffment & the Xeice 
entered for the Forfeiture In this Case the Neice having only an 
Estate for Life granted to her out of w'ch the Uses sho'd arise 
the RemV to her in-tail could never take Effect if this Deed was 
construed to enure by Way of Transmutation of Possession 
Because an Use cannot be larger than the Estate out of w'ch 
it rises It was therefore adj'd to operate as a Cov't to stand 
seised because it could not take Effect any other Way to give 
B. her Rem'r in tail 

N. B. this Case was adj'd ag't the Grantor himself 2 W. & 
M. ) Lade a Barker 2 Vent. 260. 3 Lev. 291. 4 Mod. 149. 
[301] A Father in Cons, of natural Affection & 5£, gave 8c 
granted a Rent charge to his Son The Deed was not inrolled 
here nor any Attorum t for Want of w'ch it was obj. it could not 
take Effect as a Grant w'ch was allowed but adj'd it sho'd 
enure as a Cov't to stand seised there being a Cons, of Affection 



BARRADALL^S REPORTS B325 

5 W. & M. ) Osman & Sheaf 3. Lev. 370. 2 Lut. 1205. A Deed 
was made in these Words ** Know ye that I Mary Waller for the 
** Affection I bear to my Cousin Sir W'm Brodman do give & 
** grant to him & his Heirs my Rent of 1^£. p ann. to hold to him 
** & his Heirs from & after my Decease if I die with't a Son of 
•* my Body Hving at my Decease" The Question was whether 
any Estate passed to Brodman The Obj. was that the Deed 
was intended to operate as a Grant by the Words give & grant 
And then there was a Freehold to commence in futuro And so 
the Grant void But adj'd it sho'd operate as a Gov't to stand 
seised as it could take Effect no other Way rather than the Deed 
sho'd be void. I submit if this be not a Case in Point 

9 W. 3. ) Sleigh & Metham Nel, Lut. 242. J. C. in Cons, of Marr. 
& a Portion to be paid did cov't grant & agree (not saying with 
or to whom) All that Mess. &c. to the Use of himself for Life 
Then to his Wife for Life for her Jointure with Rem'r over It 
was obj. this Deed was senseless there being no pson named 
with whom it was covenanted that Words must be added to make 
the Sense perfect w'ch was never allowed But adj'd the Deed 
sho'd operate as a Gov't to stand seised and that the Court 
would supply Words to make the Deed sensible viz (to be) 
And then he covenanted the Land to be to the Use &c. And 
this to support the Intent of the Parties & that the Deed might 
not be defeated 

From these Cases it appears that the Judges will always con- 
strue a Deed to operate that Way w'ch will most effectually 
ans'r the Intent of the Parties That no precise Form of Words 
is necessary to make a Deed operate this Way or that That 
even where there is a seeming appearance upon the Face of the 
Deed that the P. ties intended a Com. Law Gonv. Yet to support 
the princ. Intent of the Parties viz. the passing the Estate they 
will construe it a Gonv. to Use In short that they will even 
supply Words where they are wanting rather than a Deed shall 
be void or have no Effect 

Now in the Case before us the Argum't is much stronger that 
the Deed sho'd operate as a Gov't to stand seised than any of the 
Gases cited for besides that the Deed must be utterly void & 
have no Operation at all if it be not so construed The Cons, 
viz. Affection is purely appHcable to such a Gonv. & no other 
There is no Gov't Warranty or other Circumstance upon the 
Face of the Deed to shew it was intended a Com. Law Gonv. 



t^yy. ^IRGIXIA CClG}rL\L lECISIOXS 

to. ^ .A 

as the Ictetit is eriie::! as tc ca-syrrz th* Estate what good 
R-taaC-:: can be zrre:: wriv Ctr^tr. shc^d net be made tc serre 
that Intent rather than the r>eed be \r.i'± Ui nrs iib:^£f rt:Je\2f 
qu.zm fert'ZX. Vti. Mace. R. -K*. 

Thtis havrnz she^rn that this Deed by aZ the Rnks of Ccnstr. 
ifch have prevailed fcr mere than a Centary past ccght to be 
<xr-^tr as a C/jv't to stani seisei 

The 2- Flint tc be proved is that ta'^-rrg it as such the Estate 
limited to Geo. Smith after the EVeath cf the Grantor is good bv 
Wav of F-ture Use 

Tr.is I hope is in a great Measure evident from the Cases that 
have been cited I will hcwever beg Leave to examine the Thing 
to the Bottom And I will begin with consiiering the Xatnre of 
Uses 

Before the 27. H. S. Uses were nothing more than secret 
Tru.s^s & subject only to the Cognizance & Jurisdiction of a 
Court of Equity For if a Man conv. Land to others to the Use 
of himself The Estate of the Land was in the Feoffees And the 
Cestui que trust had only a Right in Equity to take the Profits 
And if the Feoffees refused to suffer him His on'v Remedv 
was to compel them in Chanc. 1 Rep. 134. b. S Mod. 1S6. 

It is sayed the princ. Inventors of Uses were Fear & Fraud 
Fear in the Times of Ci^^l Wars particularly those betw. the 
Houses of York & Lancaster to skreen the Estates from For- 
feiture Fraud to cheat the Lord of Wardships Escheats &c. 
And to hinder Ten*ts to Precipes from being known Far. 71. 
1 Rep. 123. 

These Mischiefs being great were fit to be remedyed For w'ch 
the 27- H. 8. was made. Ths Stat, unites the Possession to the 
Use So that now whoever has the Use has also the Possion & 
the Estate in the Land But still these Uses preserve so much of 
their ancient nature as to be constr. according to Equity & 
Conscience & not according to the strict Rules of the Com. 
Law as is evident from the Cases that have been cited Where a 
Deed declares the Intent & only wants some Words Or declares 
it so as that it suits not with the Rules of Law in other Conv. 
Yet if the Intent be plain such as Eqtiity before the Stat, would 
have decreed The Stat, has done as much & executed the 
Possion to the Use Poll. 527. 



BARRADALL'S REPORTS B327 

Now I believe it will not be disputed but that if a Feoffment 
had been made bef . the Stat, to the Use of a third Person after 
the Death of the Feoffor Equity would have compelled the 
Feoffee to suffer such third Pson to take the Profits after the 
Death of the Feoffor And if so the Stat, had done the same in 
our Case as Equity would have done before it was made 

It is a Rule in all Conv. to Use that so much of the Use as 
is not disposed of is in the Owner of the Land 1 Inst. 22. b. As if 
a [303] Feoffm't be made to the Use of a Mans Will or to the 
Use of another 20 Years hence or after the Death of the Feoffor 
In all these Cases the Use is in the Feoffor by Result or Impl. 
till the future Use comes in Esse So in Cov'ts to stand seised 
as there is no Transmutation of Possession but the Estate in the 
Land out of which the Uses are to arise is in the Covenantor 
Where any future Use is limited the Use remains in the Cove- 
nantor till the future Use comes in Esse Vid. 6 Rep. 18. Poll. 58. 
65, 66. 1 Vent. 374. 

Woodlet & Drury 2 Ro. Abr. 791. A Man made a Feoffment 
& declared the Uses to be after Marr. betw. him & A. to himself 
& the s'd A. & their Heirs Adj'd that a good Estate for Life 
was raised to A. after Marr. And that the Feoffor had the Use 
till the Contingency happened 

Lord Pagets Case cited in Rector of Chedingtons Case 1 Rep. 
154. Lord Paget covenanted to stand seised to the Use of a 
Stranger for the Life of him the Covenantor And after his De- 
cease to the Use of two others for 24 Years And after the Exp. 
of that Term to the Use of the Son of the Covenantor in tail It 
was adj. that the Uses to the Stranger & for the Term were void 
for want of a proper Cons. And so the same as if no Use had been 
limited but that the Use to the Son was well raised And that 
by Operation of Law Lord Paget had an Estate for Life the Use 
rem*g in him till his Death At w'ch time the Use to the Son was 
to commence. 

Pibus & Mitford 1 Vent. 372. A man cov'ted to stand seised 
to the Use of the He rs of his Body by a 2d Wife Ad j . that he had an 
Estate for Life rem'g in him the same not being disposed of (And 
so he was Ten't in tail) 

These Cases shew that in Conv. to Use so much of the Use 
as is not desposed of is in the Covenantor as has been mentioned 
Xow in the Case bet. us the Est'a limited to Geo. Smith not 
being to commence till after the Decease of his Mother the 



B32S VIRGINIA COLONIAL DECISIONS 

Covenantor The Use in the meantime remained in her vLz. 
during her Life From whence it is clear the Freehold bv this 
Deed was never put in Abeiance There was always a Tenaci 
to the Precii>e So that the Grounds &: Reason of the Maxim 
that a Freehold shall not commence in jtUuro fail in this Case 
And consequently the Maxim can't affect us acc'd to the RuJe 
Cessanie ratione legis cessai ipsa lex. 

But the Cases of Coltman ^ Senhouse & Osman 8c Sheaf before 
rcrmembered are fuUer to our Case than those last cited The 
first is ** It he sho'd happen to die with't Issue Then he did 
** give grant & conf . to his Mother " Here the Estate was to 
commence after the Death of the Covenantor with't Issue The 
other is an express Grant '* To have & to hold after the Death 
of the Grantor Yet both these Lim. were held good by Way of 
Use And to serve the Intent of the [304] P.ties the Deeds were 
constr. to operate as Gov'ts to stand seised Notwithst. the Words 
made Use of were Words of Con v. at Com. Law And tho' by the 
whole Form & Structure of the Deeds they were as unlike such a 
Conv. as ours can possibly be sayed to be 

This Point is not altogether new in this Co'rt It came in 
queon in the Case of Lawson & Connor adj'd here in Oct. 1731. 
w'ch as to this Point was shortly thus. ** Antho. Lawson seised 
of 850 A. & 100 A. by Deed gave & granted one Moiety to one 
Fulcher during his Life & after his Death to revert to him the 
Donor And after his Decease he gave one half of the 850 a. to 
his Son Tho. his Heirs & Ass. To be possed immediately after 
** his Decease & the other half & the 100 a. he gave to his Son 
** Antho. in the same Manner. One Question was Whether any 
Est 'a passed to Antho. And adj. there did arise a good Estate 
to him by Way of Use The Deed being constr. too perate as a 
Gov't to stand seised And so no Want of a particular Estate 
to support the future Use the Est. rem. in the Covenantor till 
the Estate to the Son commenced. Hopk, Mss. A. penes me [sic] 
25, 37. And a Mem. that Mr. Rand, who was of the other Side 
agr'd the Judg't was right 

This Case I take to be much stronger than ours for here the 
Deed as to the Est. granted to Fulcher could not operate as a 
Gov't to stand seised but with Respect to him it must operate 
as a Conv. at Com. Law And yet because the Estates to the Sons 
could not be supported or have Effect but by such a Constr. 
To serve the Intent of the Party w'ch was apparent to pass such 






BARRADALL'S REPORTS B329 

Estates to the Sons And because the Deed might not be defeated 
It was constr. to enure as a Gov't to stand seised. W'ch Resolu- 
tion is consistent with the Cases that have been cited And I make 
no Doubt but the like Constr. will be made upon our Deed 

Obj. Pitfield & Pierce 2 Ro. Ab. 789. Mar. 50. (15 Car.) A 
Man gives & grants to his Son after his Decease To hold to him & 
the Heirs of his Body Rem'r over. There was a Proviso that the 
Son sho'd pay to the Fa'r 8;^ . fr Ann during Life the Lords Rents 
& all other Duties. Adj. no Est. passed to the Son by this Deed 
For they would not construe it to operate as a Cov't to stand 
seised because they sayed it did not appear that the Grantor 
intended to make himself only Ten't for Life being granted [sic] 
after his Decease before the Habendum And that the Intent was 
to convey at Com Law These are the Reasons in Rolle 

A. This is the Case commonly relied on in Questions of this 
sort but has never had any great Weight It is contrary to 
Tebb & Popple well w'ch was before it in Point of Time And the 
Authority of it is quite pared away by 50 different Resolutions 
since 

Besides accord, to Hale 1 Vent. 141. the principal Reason of 
the [305] Judgment was the absurd Contrivance of the Deed 
reserving an Est. for Life to the Father & yet providing for Pai- 
m't of Rent to him by the Son And the Judges would not help 
out a Deed so contradictory & repugnant in itself. In Poll. 529. 
It is sayed the Case was not adj. on much Debate And that Croke 
& Jones both Reporters of that Time & Judges of the Court 
take no Notice of it To w'ch may be added that acc'o to Rolle 
the Judgm't turned upon the Intent of the P.ty not in the Subject 
but in the Shadow viz. the Manner of passing w'ch has been 
since quite exploded Many Judgm'ts having been given ag't the 
seeming Intent of the Pties as to the manner of passing the 
Estate rather 'than the Deed sho'd be defeated As is evident 
from Crossing & Scudamore & other Cases cited above. 

Obj. Osborn & Bradshaw Cro. Jac, 117. Father in Cons, of 
Love bargained sold gave granted & conf . to the Son & his Heirs 
The Deed was inrolled Held the Land sho'd not pass unless 
Money had been paid 

Ans. Al that can be collected from this Case is that it was 
held the Deed was not good as a Barg. & Sale because noMony 
was p'd It does not app'r that it was adj. it could not operate 
as a Cov't to stand seised nor was there Occasion to argue that 






^ « ^ 



:ci itt^TJiT ::i- 'Z'l'isiic JLiii si 



•m •• ^"^ 



^y- 3c^ ' '^T^ ^ Zi*" — **i^— iJlJi^^ 






<*»'!-'* '-^.i- y/^-T 






?>*: rv.^f^ upo^ an Use 

O'.;. Sadon & j^-zjss 2 Vrtrt. SIS. A ilan in Ccns. :: A5ect::n 
'..', ':.:\ V»' re Son & Dau'r g^ave granted ^ cc-nf. 10 the Sen Ti- 
r,'/.': v> r. m & his Henrs To ihe Use c: Gran*.:r for Lne Rem to 
*.:,'z Vr::> for L::e Rez: v^ the Son in tail Rem to the Daa'r Deed 
▼*'a-, not ezeotitA-f by Liv^iry or Inrollmt So the q. was whether 
:t -.ho'l ot/^rate as a Gov't to stand seised or be vcid Adj. it sho'd 
r,ot '/Tyernate as stich Because the Intent was at:t:arent to transfer 
the P>.t. to the Son & that the Uses shotild arise out of his Est. 
^j tr.at :t must have oftered a manifest Violence to that Intent 
to 0/yr.st.r. it a Gov't to stand seised In w'ch Cases the Uses arise 
out of the Est- of the Govenantor 

[''/)^'f] Ans- It was this plain Intent that the Deed sho'd take Effect 
by Transmutation of Possion that was the sole Reason of that 
yy\ym t But unless some such Intent is pointed out in this Case 
the Revolution will not help but rather be for us Because there 
is an exy^ress DecL of a contr. Intent in our Deed viz. that the 
O^venantor sho*d have the Estate duiing her Life From whence 
it is plain she did not intend to change the Possion or as we say 
that the Deed sho'd take Effect by Transmutation but rather 
in the Manner we contend for by Way of Gov't to stand seised 

Davis & Speed 2 Sal. 675. 4 Mod. 153. Show. P. C. 104. 
Htjsb'd & Wife levy a Fine of Wifes Lands to the Use of the 



BARRADALL'S REPORTS B331 

Heirs of the Body of the Husb. by the Wife Rem to Husb. in Fee 
Husb. Wife & Issue all died Q. was whether Heir of Husb. or 
Wife sho'd have the Land Adj. for Heir of Wife And that Rem 
to Husb. in Fee was void For taking it as a Rem*r at Com. Law 
there was no particular Est. to support it. None was expr. & if 
any was to be impl'd it ought to be in the Wife being her Inherit- 
ance And then she dying before the Issue the particular Est. 
determined before the Rem'r vested And taking it as a springing 
executory Use it was void because after dying with*t Issue w'ch 
the Law will not expect This acc*o to Salk. but Show, as to the 
last Point is that the Intent was to raise an Est ex prcesenti 
And therefore it ought to be constr executory or contingent 
w'ch I take to be the better Reason for I apprehend an Use 
may be limited after a dying with't Issue. Vid Coltman & 
Senhouse ante Sed 9. 

Ans. This being by Fine & so a Conv. at Com. Law can be 
nothing to the present question. 

Oct. 1739. Judgm't for Pit. by the Opin. of 



Randolph 


for Deft. 


Custis 


Lightfoot 


Grymes 


Byrd 


Carter 


Commissary & the 


Robinson 


Governor 


Diggs 





[307] Oldum a Allerton & Pope. 

In Trespass for taking away a Slave upon not guilty pleaded 
the Jury find a special Verdict ** That Deft. Allerton being a 
Justice of Westm'd made a warrant to be Constable to bring 
before him (not saying or any other Justice as is usual) the Pit. 
& one Tebbs Inspectors at Yeocomico to answer the Complaint 
of los. Gardner for taking divers Draughts out of sev'l Hhds 
of Tob*o contrary to Act of Ass. in that Case made That the 
Constable appointed a Day for hearing & sum*d 5 Witnesses four 
of w*ch with Tebbs appeared but Pit. did not And Oldum saying 
he would not come Deft, proceeded to hear Complt in his Absence 
& gave Judg*t in these Words " It being plainly proved to me 
that Mr. Sam. Oldum one of the Insp'rs at Yeocomico took 5 
Samples or Drts. out of 5 Hhds of W'm Tyneys Tob*o this year 
and likewise 2 Drts out of 2 Hhds of Mr. Opies & 2 Drts out of 







M r^Tf^ • I.-: r:^ "r*^ »^ CI * ^^ .^-Tct. .c>* -i.- 1 ^'J^. 

A^/- ^«A -^— ST^ ^ *--Tr »- -r^ * TT -*- A w *--^*.- * ^^-. -^ •...i^^ A. * ^^«. tfX>?W^ ^Wft^ »-^w j^Vjfc.- 

Tr.*: ^j-i^^r.-r.^ is 7»'h-r:hrr the Takmz ^v \lr:t:e c: this jTidg't & 
Ez'.r. r.-e a i"x.*i Tus'.if.:^.*.::-:: Ar-i I cinceive n:t. 

T'. cerr.-^r-^trate this r: will le nev-rs^ary in the £rst Place to 
v-'r ''.'.7/ far a Ju'Ii'e & h^'w far an C*ri.c^r may be liable to an 
A^".:^n for Tr-ir.zs cine by thrtn j^r.j.vy:.ii^ such 

!. A<5 to the Oricer the Rule c: Law is " O^r /tt55M jiidicis 
•' alyruii fecerit r^yn videtur dele mcl: y:iss€ quid f\:rere necesse 
•' e:t ** V/hat is done by the Command of a Judge shall not be 
tak'rn to be done T^-ith an ill Intent or maliciouslv because there 
i5i a Necessity of obe\-ing But then this Rule must be understood 
y^'T.^f: the Judge has a proper Juris-iicticn for it is another Rule 
in Law ** Jiidkium non a sua Judice JJ^f<m nu.V:si5 rsl m<?»m:/i/' 
A Judgm't given by a Judge who has not Jurisd. is of no Force 
This Point was long ago settled in the Case of the Marshalsea 
10 Co. 00. In Tresp. & false Imprisonment the Deft, justified 
by an Exon from the Marshalsea in Case upon Ass. 2 q's were 
made 1. Whether the Marshalsea had Jurisd. of such Actions 
If not Then 2. Whether the Deft. [30S] having the Warr't of that 
Court sho'd be jjunished for false imprisonment. It was resolved 
that the Marsk. had not Jurisd. & that theref. an Action lay ag't 
the Officer notwithst. the Warr't of the Co*rt for all -w^s Coram 
mm Jiulice & Officers are to know their Duty at their Peril 
The Diff. there taken & w'ch has been allowed ever since is 
W'hffre a Co'rt has Jurisd. & proceeds erroneously & where they 
have no Jurisd. at alh In the first Case the Officers & Ministers 



BARRADALL'S REPORTS B333 

are not liable to Action for they are obliged to obey & are not 
to exam, whether the Process be regular or not But in the latter 
Case where the Co'rt has not Jurisd. they cannot be punished 
for disobeying The necesse parere does not hold And theref. 
if they execute Process in such Case they must ans'r it at their 
Peril. 

Upon this Diff. all the Cases since have turn'd as appears in 
Seaborn & Savaker 2 Ro. Ab. 560. Nichols a Walker Cro. Car. 
394. Dye & Olive Mar. 117. Webb & Batchelor 1 Vent. 273. 
Lucking & Denning 1 Sal. 201, 202. & other Cases that will be 
mentioned presently 

This being the settled Law with resp. to Officers Let us now 
see how it stands in the Case of Judges And upon the Reason 
of the Thing one might venture to say that the Judge ought not 
to be in a better Cond. than the Officer Nor indeed is he for a 
Judge shall sometimes be liable for exceeding his Authority 
when the Officer who executes his Process shall be excused 

It must be allowed to be a settled Rule that a Judge shall 
not be liable to an Action for a Mistake in his Judg*t Nor will 
the Law allow it to be supposed that a Judge is influenced by 
Malice Partiality or Revenge And therefore no Action of Con- 
spiracy will lie ag't him for anything done by him as Judge 
12 Co. 63. Floyd a Barker Nor an Action of false Imprisonm't 
tho the Imprisonm't be illegal as app'rs in Bushels Case 1 Mod. 
119. Such an Action ag't Lord Mayor Recorder &c. of London 
for committing a Juryman for giving a Verd*t ag't Evidence Hale 
declared his Opin. that the Action wo'd not lie So Hammond a 
Howell &c. 1 Mod. 124. A like Case The Co'rt declared Action 
wo'd not lie for wrongful Imprisonm't any more than erroneous 
Judg't 

All this I agree to be true where the Judge has Jurisd. of the 
subject Matter But if a Judge will usurp a Jurisd. that he has 
not & under Col'r of that imprison or do any other Act that affects 
the Liberty or Property of the Subject The Party grieved may 
certainly have an Action ag't him for tho' he acts as Judge he 
really is not so The Proceeding is Coram non Judice as the 
Books phrase it Hard. 483. Cro. Car. 394. 

This is so plain in the Reason of Things it seems not to want 
Authority to support it I will however for the Satisfaction of 
the Court mention a Case or two presently 
[309] But first I would observe that wherever an Officer is 



N 



h>^A v:rg:?:ia colonial izcisions 

I* • • • • WW - • - ^-^ ^ £ T • " 

^.h'^.r riiture &: Ccn?:::i:t:':n limitei A: circrirr.^^cribed Seme to 
P'aie as CVjrts of Corporati^ti & Justices c: Peace Seme t3 
the Pv.r. as the Marshalsea ar.cientlv One c: the Parties at least 
v.a- to lye "Vir.;^^ within the Ver^e 10 Rep. 75. 77. And sctne as 
to the v-hject Matter as Comm'r c: Excise of Sewers &c. Har-i. 
4v>, To w'ch I nta}' aid Justices of Peace in Cases where they 
have not an ordinary- &: g*^ Jurisi. but only a particular P-: wer 
or Author. tv eiven to them bv sonte Act of Parliament Everv: ne 
of these limited Jurisd. must take Care to keep within their own 
Bounds & not exceed their Power If thev do both the Judees &: 
those who act under their Authoritv are liable to the Action 
of the Partv erieved as m.av be seen from the foil Cases 

Nichols & Walker ^c. Cro. Car. 394. 2 Ro. Ab. 5»iU. Trespass 
a an Of^.ctT for levying a Poors Rate by Virtue of a Justices 
W'arr't Wch Rate was not legaUy assessed Judg't for Pit. for 
tho* Justices had Power to grant a Warr't for le\'\"ing a Pc-i^rs 
Rate Yet their Power was limited onlv to Rates well assessed 

Tfsrry & Huntington Hard. 4^0. Trover for Goods lev'd by 
Wan* from Com'rs of Excise who upon the Act of 12. Car. 2. 23. 
had adj'd low Wines to be strong Waters perfectly made This 
Act lays a Duty upon sev'l Liquors & among others upon strong 
Waters perfectly made The Makers & Retailers are to account 
for this Duty as the Act directs under a Penalty And Offences 
ag't the Act are determinable before the Comm'rs It was arg'd 
for the Deft, that the CommVs acted as Judges & it was only 
a Mistake in their Judg't But it was held by the Co*rt that tho' 
they acted as Judges Yet they had only a Umited Jiuisd. w'ch 
they had exceeded That Low Wines were another Species than 
strong Waters upon w'ch the Duty was laid & so gave Judg't 
for the Pit. Those who argued for the Def. agreed that if the 
CommVs had not Jurisd. the Action lay And it was ag*rd on 
both Sides that in such Case both the Judges & Officers would be 
Tresyjassors This Case being very full to all the Points of my 
Argum't I will beg Leave to read it 

In the Case of Gwyn & Poole Nel. Lut. 293. It is taken as a 



BARRADALL'S REPORTS B335 

Rule by Powell Justice in his Arg't That all inferior Judges & 
Officers where they proceed in a Cause that may reasonably 
appear not to be within their Jurisd. are liable to Actions Other- 
wise where it cannot so appear. Upon this Reason the Judg't 
in that Case turned It was an Action ag't Judge Officer & Pit. 
in inferior Court for arresting in a Cause arising extra Jurisd. 
And it was held that as it could not appear but by Plea where 
the Cause of Action arose the Judge & Officer were not liable 
But it is admitted that if a Plea to the Jurisd. had been offered 
& refused [310] Or if it had been reced & the Co'rt afterwards 
proceeded an Action wo'd lie 

The same Point is admitted in Crump & Halford 4 Mod. 349. 
Skin. 445. And in this last Case there is an Instance mentioned 
where the Judge wo'd be liable tho' the Officer wo'd be excused 
as if a Justice sho'd issue a Warr to apprehend a Felon with't 
Oath made of a Felony committed the Officer would be excused 
for executing it but the Just wo'd be a Trespassor The Reason 
of w'ch is plain y't the Just had a Power to issue a Warr. for 
apprehending a Felon & the Officer was not to exam wheth'r 
Oath was made or not The Just, had Jurisd. & he was bound to 
obey 

These Cases I think fully prove that an Action will lie ag't 
inferior Judges for exceeding their Jurisd. as well as ag't their 
Officers And this is further proved by the Stat. West. 1, c. 35. 
w'ch prohibits inferior Co'rts to proceed in Contracts &c. out 
of their Jurisd. & gives double Dam's to the Party grieved 
Which Dam's can be only recov'd by Action There is a Writ 
in the Reg'r 98. under the Title Trespass grounded on this Act. 
Vid. 2. Inst. 230. 

Besides w'ch we have comon Experience of Actions a Justices 
for whipping putting in Stocks &c. where they have exceeded 
the Power the Law has given them Some of w'ch I have known 
in this Court 

I shall then take it for granted that the Judge as well as the 
Officer is liable to an Action where he exceeds his Jurisd. And 
now it rem's to shew that the Deft. Allerton in the Judgm't & 
Exon he awarded ag't the Pit. hath exceeded the Power & Au- 
thority given to him by the Law 

I will first beg Leave to premise that a Judge may exceed his 
Jurisd. 2 Ways 1. Where he has no kind of Jurisd. at all of the 
subject Matter 2. Where he has e Jurisd. but that Jurisd. is 



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BARRADALL'S REPORTS B337 

for the more explicit Direction of the Insp'r in his Behavior 
but was never intended so indispensible a Duty as that the bare 
Omission of that sho'd subject the Insp'r to the Penalty for 
Suppose the Dra't sho'd happen to be bruised or broken in the 
drawing or by any Accident after bef . it was put in again Or 
suppose the Owner sho'd desire it not to be put in w'ch I am 
told is often the Case Shall the Insp'r in either Case be liable to 
the Penalty It will not surely be pretended 

To constitute this Offence then I conceive these 3 Things are 
requisite 1. That the Sample be taken out of a Crop Hhd.. So 
are the Words of the Act 2. That the Insp'r take the Tob'o to 
his own Use or otherwise dispose of it ag't the Will or with't 
the Knowledge of the Owner For surely the Owner may give 
it up if he pleases And 3. that the Tob. be fit to pass This I 
take to be the plain & obvious Meaning of the Act And as the 
Penalty is inflicted only for taking away Dra'ts contrary to the 
Directions of the Act (for so are the express Words) Unless the 
Dr'ts were taken under the Circumstances just now [312] de- 
scribed the Insp'rs ought not to have been condemn'd to the 
Penalty as I humbly conceive 

The next Thing then to be considered is Whether the Justice 
has convicted the Pit. of such an Offence as is described in the 
Act for if he has convicted us of and other Offence I presume 
it will not be sayed that this Act can be any Justifica. 

I will take the Justices own Words for what he says appeared 
& was proved to him ** It being plainly proved to me that S. O. 
** took 5 samples or Dra'ts out of 5 Hhds of W'm Tyneys Tob. 
** &c. And did not return the s'd Dra'ts into their resp. Hhds." 
This is all the Just, says was proved to him ** that he took the 
** Dra'ts out & did not return them again." As to taking the 
Dra'ts out that he was obliged to do The not returning them 
then is all that is laid to his Charge as criminal 

Now if this be not the Offence intended by this Act If under 
some Circumstances the Insp'r might very innocently act in this 
manner Then it will foil, that the Just, has exceeded the Power 
& Authority given him by this Act w'ch is only to convict of the 
particular Offence there described And so the Justice & his 
Officer are both Trespassors 

And it is plain I think that what we are conv. of is not an 
Offence within the Act or indeed any Offence at all It must be 
own'd that und'r many Circumstances the Insp'r is not obliged 



B3:iS VIRGINIA COLONIAL DECISIONS 

to return the Dr't into the Hhd as 1. if it was not Crop Tob. 2. 
if it was not fit to pass 3. if the Own'r sho'd desire him not Ani 
either of these might be the Case for anything that app'rs to the 
contrary' upon the Judg't It is not saved they were Crop Hhds 
out of w'ch the Dra'ts were taken Neither is it sayed that the 
Tob'o was fit to pass Or Y't the Insp'r took the Tob. to his 
own Use or otherwise disposed of it with't the Knowledge or 
ag't the Will of the Owner Nay it is not so much as sayed that 
what he had done was contrary to the Directions of the Ac: 
So that there is not Room to suppose any of these Facts And 
there is much less Reason to suppose the last of them because 
it is not the Owners that complain but a busy Fellow that tum'd 
Informer in hopes to get the Penalty w'ch indeed the Just, has 
given to him apparently ag't Law as I shall shew presently 

But I apprehend further that no Sup|>ositions are to be made 
of Things that do not appear There is a Record w'ch is relied 
on as a Justif. And yo'r Hon'rs are to determine from w't app'rs 
upon the Rec. Wheth'r it be a good Justif. or not The Rule of 
Law is ** Inter non existentia et non app. eadem est ratio.'' As no 
Averm't wiil lie ag't y'e Rec. And we must not be admitted 
to say that anything in it is not true So neither must they be 
allowed to aver anything that does not app'r upon the face of 
it 

And since it does not app. as I apprehend y't the Insp. was 
guilty of the Offence mentioned or had done any thing to subject 
[313] him to the Penalty therein mentioned the Justice had on 
Power or Authority to give Judg't ag't him 

The Case of Terry & Huntington supra is exactly the same 
with this The Comm'rs of Excise are made Judges of an Offence 
ag't an Act of Parl't They convict a Man of an Offence w'ch 
in their Opin. was within the Stat. An Action is brought ag't 
the Officer who executed their Precept The Judges are of Opin. 
that the Matter for w'ch they had convicted the Pit. was not 
an Offence within the Act And that theref. the Com'rs had ex- 
ceeded their Jurisd. & Power w'ch was lim to the Off's in the 
Act And it was held that both they & their Officers were liable 
to an Action So here if the Just, has con v. us of an Off, not 
within the Act His thinking it to be within the Act will not excuse 
either him or his Officer As the Comm'rs of Excise exceeded 
their Power in judging Low Wines to be strong Waters perfectly 
made So the Justice here has exceeded his Jurisd. in judging 



BARRADALL'S REPORTS B339 

the not ret. a Sample into the Hhd whence it was taken to be 
the Offence for w'ch the Penalty is inflicted by this Act of Ass. 

To make this more plain Supp'o the Justice had given Judg*t 
for 40 S. for every Off. instead of 20. I presume it will be granted 
we might have an Action in that Case And if we might in any 
Case where the Justice exceeded or did not pursue the Power 
given him Surely we are intitled to it when he conv. and con- 
demns us to the Penalty with't being guilty of the offence. 

It would have made a mighty Diff in the Case if the Just, had 
been only mistaken in his Judg't of the Fact that is if upon the 
Evid. he had been of Opin. we were guilty tho' we were not not 
so In that Case we must have been with't Remedy Because 
the Law has made him Judge of the Fact & it is within the Power 
& Authority given to him But in this Case the Just, has taken 
upon him to make that Off. ag't the Act w*ch I conceive is not 
so And so has plainly exceeded his Power w*ch is only to conv. 
of the particular Offence therein described 

If this Point can want any further Enforcing I desire it may 
be considered how dangerous it must be to the Liberty & Fortunes 
of the Subject to vest a single Just, with so much Power as must 
'be the Conseq. of the Doctrine on the other Side If he may 
not only conv. of the Off. in the Act But also make that an 
Offence w'ch the Law has not made so who can be safe in their 
Psons or Estates This would be transferring the legislative 
Power to him & open a Door to all the Violence & Oppession 
imaginable Justices may be governed & blinded by their Passions 
I wish there was not something of that in this Case But however 
that be it must be allowed to be too dangerous a Power to be 
lodged in a single Hand And therefore the Laws have very 
wisely provided this Fence of an Action where the Just, goes 
beyond the Power & Authority given him 

But the Just, has not only exceeded his Power in making 
that an Off. w'ch the Law has not made so but he has likewise 
done so in giving a Judg't not warr. by the Law And that in sev'l 
Instances 1. As to one of the Offences he has split the Penalty 
betw. y'e 2. Insp'rs & gave Judg't for 10 s. [314] only a the Pit. 
2. He has given Costs tho' none are given by the Act And so 
has subjected the Pit. to a greater Penalty than the Law has 
inflicted It will be no Ans'r to say the Costs are but small 
The Obj. is he had no Power to award any Costs Ergo in so doing 
exceeded his Jurisd. By the same Rule that he co'd award 



B:^0 VIRGINIA COLONIAL DECISIONS 

oO lb. T:b. he mi^h: have aTrariel 30 £. In Crump & Halfords 
Casc^ jn.v it serins aimitied by the Argmn't fr Deft, that Costs if 
had been ^ven where thev ou^ht not the Action wo*d lie Thev 
labour to prove the Act intenied Costs 

But the ET.ost weighty Obj. of all is 3. That he has given the 
Penalty to the Infcrmer The Penalty is not appropriated by 
the Act In wch Case it is a known Rule that it goes to the King 
II Co. t>8. a. Sc here his Ma tie is not only defrauded but the 
Subitct put in a wcrse State than the Act intended He is to 
lie at the Mercy of the Intcrtner instead of the King If the 
Penalty had been ad;*d to the King as it ought the Pit. by an 
Application might have get it remitted And I dare believe wo'd 
have met with so much Fav'r under the Circumstances of this 
Case. 

This is exceeding [<:Vj Pcwt- r \^-ith a witness It is not at at 
unlikely the Legislature designed in not appropriating the Penalty 
to leave Room tor an Arr Meat ion to the Crown where a Justice 
was too severe or partial It might be thought a proper Security 
ag't arbitrary- & \-ioIent Proceedings But the Justice here was 
resolved to stop the Fountain of the Kings Lenity & effectually 
to ruin the Pit. \i he could If this is allowed Hard will be the 
Fate of every poor Insp'r who happens to be obnoxious to a 
Count r\' Justice who Ts-ill undertake the Exon of an Office that 
may put it n the Power of his Enemy to ruin & destroy him even 
tho* he is ever so innocent 

A 4. Obj. to the Judg't is its being for £.\\, . 10. — w'ch I 
think is more than a single Justice can give Judg't for Without 
Doubt he might have given Judg't for 12 different Offences or 
200 but then as the Offences must be sev'l so ought the Judg^ts 
The ordinary Power of a Justice in Civil Cases is limited to 20 s. 
Now shod a Just, in a Civil Case under Pretence that the Pit. 
had sev'l Demands ag't the Deft, give Judg't for more than 
20 s. I daresay he wo'd be thought to exceed his Authority tho' 
perhaps he might ver>' well have given separate Judg'ts as 
Supp'o 20 s. to be due by Obi. & 20 s. by Acco*t he might give 
sev'l Judg'ts for these Sums but not one Judg't for both This 
indeed may be sayed to be but an Informality And if there was 
nothing more in the Case I sho'd not not much insist upon it 
But it is really attended with a very bad & dangerous Con- 
sequence For if this Penalty had been given to the King as it 
ought by crowding these Offences into one Judg't & thereby 



BARRADALL'S REPORTS B341 

making the whole Penalty exceed 10;£". The Gov'r could not as 
I conceive have extended the Kings Fav'r tho' the Case had been 
ever so deserving of it This is surely worthy Cons. Suppose 
a Justice should arbitrarily & unjustly give Judg't ag't a Man 
for [315] 500 Breaches of this or any other Law & put them 
in one Judg't If the Justice took Care to pursue the Law in giving 
his Judg't the Party must be with't any kind of Remedy tho* 
the Partiality & Injustice were ever so notorious 

Let it be considered w*t a dangerous Power this would be in 
the Hands of a single Pson subject to no Controul Human Nature 
is too depraved to depend altog'r upon the Virtue & Integrity 
of the Judge Power is apt to intoxicate & spoil the best Tempers 
And therefore it is in a Mann'r absolutely necessary that the 
Fences ag't arbitrary power sho'd be kept up I dare say it was 
never the Intention of the Law makers when they inflicted this 
Penalty to put it in the Power of a single Justice to ruin any 
Insp'r if he pleased w'ch will be the Consequence if he may crowd 
as many Offences as he pleases into one Judg't as I have en- 
deavoured to demonstrate 

It will be arg'd I suppose that it is very hard upon Justices 
who serve in their Office with't any Reward to be subjected to 
Actions if they happen to be mistaken And this is a very 
plausible way of Talking 

In Ans'r to it I wo'd desire to be understood that I make a 
great Diff. betw. Things done by a Just, by Virtue of his gen'l 
Authority and where they are done by Virtue of a particular 
limited Power given to him by a positive & written Law In the first 
Case any little Slip or Mistake in Point cf Formality especially 
is never regarded nor can he be punished for it But where a 
positive written Law has plainly pointed out his Power & Author- 
ity There if he does not strictly pursue the Power given him 
he must ans'r for it For as I have already observed Every lim 
Author, implies a Neg'a viz that they shall proceed acc'o to that 
Power & not otherwise And there is no great Hardship upon the 
Just, in this last Case He may act very safely if he foil, the 
Directions of the Law And it may very reasonably be deemed 
rather a Fault in the Will than the Understanding if he does not 
Whereas in Matters where he has a gen'l undefined Authority 
it is not always so easie for him to know precisely his Duty & 
Power And theref. it is more reasonable to make some Allow- 
ances Tho' even in those Cases if he exceeds his Power in any 



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*/* *j;x^fz y*Av^ r,: ^ ::cint c -• seme Cirrmnstances arc^iring in 

I , Tr.f: V/arr. is 5:^«ecial to ai.z'r bercr^ tbe I>ef. onlv & not anv 
o*h'rr yy',\v,ft as the u=-al Form is 2. The Matter was heard in the 
\'\\\, k\/'/^jjt It at,t,'rs indeed the Just, was tcid he wo'd not 
fjAr,*', b-Jt vjrelv in a flatter of this Moment & Value one Default 
rr.:;^^t have been passed over & another Day appointed And 
tf.en if the Pit. had failed the Just, cod not have been blamed 
And there was the more Reason in this Case as the Pit. was an 
In-.j/r & n.:j.^ht be under a necessity of attending the Warehouse 
jtj M at that Time or be subject to a Penalty for not being 
th^re 

I must submit Whether these Circumstances do not cany an 
A[ipearance of something like Heat & Passion to say no worse 
At least we may suppose the Jury thought so from the Damages 
they have ;^iven 

I only mention this to oVjviate the Stress that may be laid on 
the Ilanlship of the Case It can never be thought a Hardship 
if the Just, was influenced by Passion or Resentm't And tho* the 
Law will nf;t allow such a Thing to be presumed from the mani- 
fcKt Inconv. that wo'd foil. Yet when Facts are found by a Jury 



BARRADALL'S REPORTS B343 

that plainly prove such a Disposition I don't see how a Co'rt can 
help judging so 

But however that be if the Just, has acted illegally if under 
CoFr of his Authority the Property of the Pit. has been invaded 
& he subjected to great Loss & Dam apparently ag*t Law I 
must submit whether the Loss & Injury to him be not more 
worthy Cons, than any compassionate Regard to the Just, sup- 
posing him to be ever so innocent 

For the Deft, was cited Greenvelt a Burwell 1 Sal. 396. w'ch 
Case proves nothing but w't is admitted in the Argum't above 
& rather strengthens than invalidates it 

Yet Judgment was given for the Deft. October 1739. by a great 
Majority of the Court 

To the Cases above cited for the Pit. may be added Rex vs 
Chandler 1 Sal. 378. A Summary Conviction ought to be con- 
strued strictly so as to shew the Fact an Offence within the Act 
because the Subject is deprived of a Trial per Pares. 

[317] APRIL COURT MDCCXLI 

Dudley vs Perrin & al. Fr Deft. 

In Ejectm't upon a special Verdict the Case was Eliz Ransone 
seised in Fee tail of the Premes in Question marr'd Rob't Dudley 
They had Issue the Lessor their Son & Heir born in 1692 — 
Dudley died in OctV 1701 — In Sept. 1710. Eliz. marr'd one 
Elliot who died in Nov. 1716 — She died in Dec. 1718 — In Oct. 
1726. the Lessor bro't an Ejectm't In w*ch Suit Judgm*t was 
given ag't him in Oct. 1729. And this Suit was brought in Apr. 
1739. 

Dudley his Wife by Lease & Rel. both dated 16. Oct. 1694 
ackn'd but Feme not exam*d sell & convey for val. Cons, to 
Jas. Ransone In the Deed of Rel. is this Clause ** And lastly 
** the s'd R. D. & E. his Wife do by these Presents firmly oblige 
" themselves their Heirs Ex'rs & Adm'rs the s*d Land Tenem'ts 
" Hered'ts with all & singular its Rights Members Jurisdictions 
** & appert's & every Part & Parcel thereof as is bef. expressed 
** unto the s'd Jas. Ransone his Heirs & Ass. to warrant & ever 
defend " 

Ja's Ransone by his Will devised to his Sons Geo. Robert & 
Peter in Fee And they for val. Cons, sell & convey to Tho. Booth 
who by his Will devises to his Ex'rs (the Defts.) to be sold 



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*z7. 'i rr.'i-* :>*: c^r-fii^rei rr-eerlv as thr Act c: ibe Eusr'i Ani 
ai v,:':?- a* the C.m. Law Tr.-^i Lave niaie a Disozntinuarce & 
tak'rr. avrav the 7r::e> Eintrv htit that is saved r v the o2 K. S. 2S, 
V> her & h'rr Heir? -K-hs hv that Stat, niav enter after the Hus- 

A Pf^'ht of Entr-.' then in this Case accraed to the LesS'Drs 
y^Ar/r -JT.on the Death of her Hushand Duilev in 1701. At this 
T:rr,e there was an Act of Ass. s;:hsi5tin2 made in 1662 wherebv 
/> y*:HTS Pohsion was a Bar 

[-^iS] But that Act being repd by the 9. Ann. I shall cot 
preVrnd to sav the Court can take anv Notice of it 

Jn Oct. 1710. the Act of 9. Ann. was made w'ch enacts to this 
Pijrpoh/5 ** that no pson or psons that now hath or have or w'ch 
'* hereafter may have any Right or Title of Entry into any Lands 
*' &c. shall at any Time hereafter make any Entry but within 
** 20 Vears next after his or their Title hath heretofore descended 
or ar;crued or hereafter shall descend or accrue And in Default 
thereof they & their Heirs shall be utterly excluded & disabled 
:rom such Entry Provided that if any Person that hath or 
Bhall have such Right or Title of Entry be or shall be at the 
* Time of such Entry first accrued within Age Feme Covert &c. 



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BARRADALL'S REPORTS B345 

" such Person may notwithst'a the 20 years are exp. make his 
*' Entry so as such Person within ten Years next after the 
" Disability removed take Benefit of & sue for the same & at no 
** Time after s'd ten Years " 

This Act repealing that of 1662 revived the Right of Entry 
of the Lessors Mother w*ch was barr'd by the old Act But then 
this Act has a Retrospect with Regard to Titles accrued before 
the making of it Psons then having a Right must enter within 
20 Years from the Time his Right first accrued The Words of 
the Act are express & plain to this Purpose. 

Now the Pson having a Right of Entry in this Case when the 
Act was made was the Lessors Mother whose Right first accrued 
upon the Death of her Husband Dudley in 1701. as has been 
observed 

By the Enacting Part of this Act She & her Heirs ought to have 
entred within 20 Years from the Time her Right first accrued 
Now no Ej. was bro*t till 1726. But luckily for the Lessor his 
Mother was marr'd just a Month before the Act was made And 
so being under Coverture by the Proviso or Saving Clause She & 
her Heirs had ten years to enter from her Discoverture w*ch 
happened in Nov*r 1716. And the Lessor bro*t the Ej. in Oct. 
1726. just a Month within Time If he had stayed a Month 
longer he wo'd have been barr'd of that Ejectm*t 

Now he brings another Ej. at the Distance of 12 years & K from 
the first 9K years after Judgm't was given ag*t him & more than 
12 years after the Time allowed by the Act for him to make his 
Entry is exp. 

And the Question is Whether the bringing of that Ej. in 1726 
has taken the Case out of the Act of Lim for if it has not the Time 
allowed by that Act is elapsed & the Lessor is clearly barr'd 

I shall be glad to hear for I must own I am at a Loss to guess 
what Reasons can be offered for the Affirmative Sure I am there 
is no Authority but I think there is an Authority in Point on 
[319] the other Side of the Question if there was not I take it to 
be clear upon the Words of the Act of Ass. Upon the Reason 
of the Thing & the manifest Inconvenience that would follow if 
the Law was otherwise that the bringing of an E j . is not making 
an Entry so as to take a Case out of the Act of Lim. 

1. As to Authority By the 4. H. 7. Fines levied as there men- 
tioned are declared to conclude both Strangers & Privies but 
there is a Saving to all psons other than the parties ** So that 



B346 VIRGIXIA COLONIAL DECISIONS 

" they pursue their Title Claim or Int by Way of Action or lawful 
'* Entry w'thin five years " 

One having a Title bro't an Ej. within 5 years after his Title 
accrued And the Question was Whether this was an Entry or 
Claim so as to avoid the Bar of the Fine And resolved that it 
was not And that the Confession of Lease Entry & Ouster sho'd 
not prejudice the Deft. 1 Vent. 42. Clark a Phillips. 

By our Act psons must make their Entry within 20 years after 
their Title accrues or in Default thereof to be barr'd But there 
is a Saving to psons under Incapacity who may enter after the 
20 Years '* So as such pson within ten Years after the Incapacity 
** removed take Benefit of & sue for the same." 

The Words of our Act & those of the Stat, are the same in 
Substance And if the bringing an Ej. is not making an Entry 
in the one Case Neither can it in the other The Cases are 
parrallel both in Law & Reason. 

As to the Confession of Lease Entry &c. that is a Rule a Deft. 
is forced into by the Court And it would be very strange if that 
sho'd turn to his Prejudice But in Reality it is not the Entry 
of the Lessor that is confessed but of the nominal Pit. The Rule 
only confesses that a Lease was made by the Lessor that the 
Lessee (the nominal Pit.) entered & that the Deft, ousted him 
Certainly then where an Entry is necessary to make a Title this 
Rule can signfy nothing 1 Sal. 259. 1 Vent. 382. Sed vid. 248. 
Hales Opin. con. Court takes Notice that Ej. is fictitious & 
Entry not real 1 Sal. 245. 

2. Let us consider this Point upon the Words of the Act of 
Ass. All psons must enter within 20 Years after their Title first 
accrued " And in Default thereof shall be barr'd '* This is the 
Enacting Part The Saving Clause is " that Psons under In- 
capacity may enter after the 20 Years So as it be within ten 
** Years after the Incapacity removed And at no Time after 

These Words ** At no Time after *' are very strong & seem 
calculated to exclude Entrys under any Pretence after the ten 
Years If the Makers of the Act intended to except this Case 
of an Ej. bro't within Time why did they not mention it The 
Words of the Act [320] are general Et ubi lex non distinguii nee 
nos distinguimus say the Judges The Words are very express 
that psons shall not shall not enter after ten Years How then 
can the Co'rt adj. that the Lessor here may enter after more 
than 20. 



BARRADALL'S REPORTS B347 

Did the Lessor by his Ej. in 1726. acquire a new ofa different 
Right of Entry from what he had before Surely it can't be 
pretended And if not if he has only the same Right of Entry 
now he had then the Act is a clear Bar to that Right 

But 3. The Reason of the Thing & the great Inconveniences 
that wo*d ensue if the Law was otherwise sufficiently prove 
the Law to be as I contend viz. that the Lessor is barr*d by the 
Act of Limitation notwithsta. his Ej. in 1726. 

The Acts of Lim were made for the Security of honest Pur- 
chasors Upon this Acco't they always meet with a favourable 
& liberal Constr. for the Benefit of Purchasors The Mischief 
intended to be remedied was the setting up of stale Titles There- 
fore says the Act no one shall be allowed to make an Entry after 
such a Time 

But how will this Mischief be remedied if psons are allowed to 
enter after the Time limited by the Act Will not Purchasors be 
often deceived if such a Practise prevails And so the princ. 
Design & Intention of the Act defeated Pchasors often rely on 
these Acts of Lim as their greatest Security If they are suffered 
to be evaded under any Pretence no Purchasor can be safe 

But further in this Case I would ask Has the Lessor by his Ej. 
in 1726 acquired a Right of suing again at any Distance of Time. 
If not when is the Act of Lim to bar him When is it to begin to 
run The Act points out no other Periods but from the first 
accruing of the Right & the Removal of the Incapacity The 
Time is long since elapsed from those Periods No new Right 
of Entry has since accrued to the Lessor 

It is not plain from hence if we go beyond the Time limited by 
the Act we shall neither know where to begin nor where to stop 
By the same Rule & Reason that the Lessor may maintain this 
Ej. in Case he miscarries he may bring another at the Distance of 
another 12 or even 20 Years & so a fourth in infinitum At this 
Rate the longest possession will signifie nothing & the Acts 
of Lim are made in vain 

The Inconvenience then of departing from the Act is manifest 
Titles may be set up under the same Pretence as in this Case at 
any Distance of Time Suits multiplied without End Honest 
Purchasors deceived The longest Possion of no Effect And the 
Acts of Lim utterly defeated 
[321] Argument ab inconvenienti very forcible 



mm^ ^ m- ^ 






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It i* r^^r'.r-ar.je t-: think if tbr Lat rzakers ba.i rr^tcniei tc 
a..'>-x- tr-r: r.nr.%-ir.^ t: a sectnt E;. tr A::ti:n ::r Lanis tz^ey iri- i 

Makr^Ts r,: the Stat, b-er^ufe th-ev ar^ c»:th in the sair.e An 
Cnr? ar*: tiro dir-erer.t Aits hut i:t:'i almist Terbatirzi frr-tii 
t?.-^ htat. 

There brin;^ no Pr':'--i5«o as to the Lanis is not only a string 
Ar^-um't but a kind of Pr>:f that they iii net intend to alli'-ar 
of a second Stiit or Action in tr^t Case 

But if there was snch a Proviso it we'd not helD the Less-ir 
for it extends or^y to Cases where the Pits. Right is a^Srmed by 
Verdict & then he must sue within a Year Here Judgm't was 
ag't the Pit & he has not sued again till 9-^ Years after 

This Proviso is a Proof the Law Makers did not intend a 2d 
Action shod be brought after the first except in the Cases ex- 
c/^pted 

Taking this Case then in any View I cannot see what Founda- 
tion there is for saying the Pit. may maintain the present Ej. 
because he bro't another formerly within Time 

The Act of Ass. gives no such Right On the contrary the Words 
are express that no Entry shall be made after the Time there 
[incited No Proviso within the Equity or Intendment of w'ch 
L/;ss^jr can bring himself but rather a strong Presumption that 
no such Thing was intended Manifest Inconv's if the Law was 
so & last by a Case in Point that bringing an Ejectm't is not 
making an Entry 

Obj. But these Statutes are sometimes taken by Eq. and 
under particular Circumstances it has been allowed to bring 
personal Actions at least after the Time where an Action has 
bef;n before comenced within Time 

Ans. I agree such 2d Action has been sometimes allowed 
in personal Actions There is not the same Inconv. with Re- 
spect to Purchasors But in those Actions it has been only 
allowed in Case of the Pits. Death And even there the ExV 
or Adm'r must make a recent Prosecution And w't shall be 



BARRADALL^S REPORTS B349 

deemed so the Judges are to determine upon the Circumstances 
of the Case In gen*l the Year mentioned in the Proviso just 
now taken Notice of his been thought a good Direction to the 
Judges And therefore where an Ex*r lay by four Years it was 
adj'd not to be a recent Prosecution fr Raymond & tot* Cur' 
Wilcox a Huggins FitzG. 170, 289. 

The Defts. Possion in this Case has been 46 years There 
have been two Purchases & two Devises The Defts. Testor 
was a Purchasor for a val. Cons. The Acts of Lim were made in 
fav'r of Purchasors And we rely upon them to protect & secure 
us 

[322] If Lessor not barr'd by Act of Limitation Then 
2 Quest is Whether the Warr of his Fa'r in the Deed of Conv. 
to Ranson is a Bar to him And this I shall consider 1. Without 
Regard to the Assets descended to him & 2. With Regard to 
those Assets. 

The Case as to this Point is shortly this A Woman Tent, in 
tail marries her Husband aliens with Warr & leaves Assets in 
Fee simp, to a certain Value w'ch with the Warr descend upon 
the Issue in tail 

The Subj. of Warr being pretty uncommon in this Court I 
hope I may be excused if I enlarge a little upon it 

A Warr is a Cov*t real annexed to Land whereby a Man & his 
Heirs are bound to warrant the same 1 Inst. 365. a. 

Of these Warr there are 3 Kinds lineal collateral & such as 
comence by Disseisin Lit. s. 679. 

A Warr is sayed to be lineal or collat not in Resp. of the Warr 
but of the Title of the Land Thus a Warr descending from Fa'r 
to Son may be collat. tho' the Descent of the Warr is with't 
all Quest lineal And that will app'r to be the Case here. 

A lineal Warr then may be thus defined Where the Lands to 
w'ch the Warr is annexed wo'd have descended to the Heir 
from the Ancestor making the Warr if that Warr had not inter- 
vened & prevented it 

And so ex opposito a collat Warr is Where the Lands co*d not 
desc. from the Ancestor making the Warr Nor the Heir by any 
Possibility derive a Title under him Lit. s. 703, 45. & Com. 717. & 
Com. 

Warr that comence by Disseisin having nothing to do with 
the pres't Case I shall take no further Notice of them. 

The Warr of the Defts. Fa*r in this Case must be collat acc'o 



B350 VIRGINIA COLONIAL DECISIONS 

to the above Detin bee. tho' the Warr descends lineally to him 
from his Fa'r Yet the Lands to w'ch the Warr is annexed being 
the Inher of his Moth'r co'd not descend to him from his Fa'r 
nor he bv anv Possib. derive a Title to them under his Fattier 

I have entered into this Distinction of lineal & collat Warr that 
the Authorit\-s I shall produce may be the better understood 
not that I think the Terms of any great Use in the true Learning 
& Expl. of Warr But rather conceive with a gr't Man (Vaughan) 
that they ser\'e more to perplex & intricate than to illustrate 
any useful Learning on the Subj. Vid. Vaugh. Bole & Horton 

Littleton has made his Chapter of Warr very obscure with 
these Terms & Coke in his Comm has rendered it more so 

The princ Learning on Warr is to know Whether a Warr 
binds or not And that is the Question here 

Now at the Com Law all Warr exc such as comenced by Dis- 
seisin were binding And descending upon the Heirs of those who 
made them were Bars to such Heirs to claim any Thing in the 
Lands to w*ch the Warr were annexed This Doctrine Litt. 
expressly teaches s. t>97. 

If they bound at the Com Law they must do so in all Cases 
unless the Law is altered by some Stat 

[323] Only four Stat's w'ch restrain Warr viz Glouc. Westm 
2. De donis. 11. H. 7. & 4. & 5. Ann. 16. but this last is not in 
Force here 

The Stat, of Glouc. w*ch was the first restrains the Warr. of 
Ten't by the Curtesy & of the Husband of the Wifes Inher in her 
Life time from barring the Heir of the Wife unless Assets in 
Fee simple descend from the Father to the Heir of which more 
by & by 

The Stat, of Westm. 2. upon w'ch Estates tail were first intro- 
duced speaks nothing expressly concerning Warr but in gen'l 
Terms restrains all kind of Alien'a of Ten't in tail from barring 
the Issue & consequently Alienation w'th Warranty The Words 
are\*' Non habeant potestatem alienandi quo minus ad exitutn 
** illorum remajieai {sc, teftementum) post cor urn obitum*' 
^ The 11. H. 7. restr the Warr of a Woman Ten't in Dower for 
Life or in Tail of her Husbands Gift but of this nothing need 
be sayed in the present Case The Stats, of Glouc. & Westm. 
are those only w'ch concern the present Question I shall there- 
fore consider the Case upon both these Stats. And first upon the 
Stat, of Westm 



BARRADALL'S REPORTS B351 

The Lessors Mother in this Case was Ten't in Tail And if this 
Alienation with Wan* had been made by her it wo'd not have 
barr'd her Issue (at least with't Assets because such Alien'a 
is expressly restr by the Stat, of Westm. And the Warr in that 
Case must have been lienal because the Issue must derive his 
Title under the Ten't in Tail 

But the Stat, has only restrained the Alien*a of Ten't in tail 
from barring the Issue for even such Alien'a with Warr will bar 
a Rem'r man or even the Donor of his Reversion if the Warr 
descends upon him 1 Inst. 374. a. b. (Sed qucere as to Donor & 
vid. Bole & Horton) 

And so in like manner the Warr of any collateral Ancestor 
descending upon the Issue in tail will bind the Right of the 
Estate tail & bar the Issue for such Warr are not restr by the 
Stat. 1 Inst. 374. b. 

This Doctrine may seem very harsh but the Law is however 
very clear & plain And it is to be considered that the Law in this 
Case is not so much founded upon the Reason of Things or 
what may be called strict natural Justice but upon certain 
Rules & Principles introduced & established for public Con- 
venience 

Littleton in his Chapter of Warr s. 712. says that a collateral 
Warr is a Bar to him that demandeth Fee tail unless in Cases 
that are restrained by the Stats. & he puts sev'l Cases to illustrate 
this Doctrine 

If Lands be given to a Man & the Heirs of his Body who marries 
discontinues the Tail & dies And his Wife after his Death rel. 
to the Discontinuee with Warr This Warr descending upon the 
Issue in tail is collateral & a Bar S. 713. 

In this Case the Alien with Warr. of the Husband who was 
Ten*t in Tail wo'd not have barr'd his Issue because such Warr 
wo'd have been lineal & is restr. by the Stat of Westm but the 
Warr of the Wife descending upon the Issue in Tail is a Bar 
because her Warr is collateral to the Issue & is not restrained by 
the Stat, for no collateral Warr is restr. by the Stat, of Westm. 
[324] as appears from 1 Inst. 374. 

This Case differs nothing in Substance from the present There 
the Husband was Ten't in tail & the Warr of the Wife barr'd 
the Issue Here the Wife was Ten't in tail & the Warr of the Husb. 
as we say bars her Issue So if Ten't in Tail discontinue the 
Tail has Issue & dies & the Uncle of the Issue rel. to the Dis- 



L^l lECISIOXS 



: t-jz: -« — : irr £l zix-.s t~_-': -n l55:ie this Warr desceniin^ 

1 Trr ~ i: Ti.1 :.l5 Irrirr S.rj? ii>::r.*:ii: the Tail & dies vSc 
^.ir: zii : :!■: > ZL -;. ". 'ji-r Z--f^: I'tir TTth Warr& dies without 
Ifc?^^ ~ ^i^ xTT !'::>.-- iiri: :!'•.' tJi»r el Irst Szii IS a BaT to him 

Ir : "I "r.::^ Jj^r^ *-!►; irr n-z5t le :*:Ilaterai bee. the Iss'jie 

:r _i^ ..ijrr.- ir 1 i. .."-f — r_ i^r ns Ln^e nor the ei-::er 

?~ *-:*;r r~,T: -:- zi^ilz Ani trzv ire Bars net directh" & j 
"* . "" 'zk-z '-"r -i-^* ::*li.Trril TvTirr r-t h^cause no collateral 

T'r»zr; iTr i. ? ir: :«rr : : ."irfr Cis-es m Lin. to the same Ihir]:«c»se 
1 T". . r*. ■ ^1'*' 71.- A^i C.kz :=: his C:tn en L. 709. savs it 
rjL.: ':«;-T x'T-.r*. *zi -n 7 iri t: retrain cillaterai Warr unltrss 
A^sczs ii-k-x" ->, i r~.rr tr.*: s^ine Anj^-stir h-jt it never t^^-^k 
-i~;vt r«;\: :t T . i '^zjS^zz. :■_ m,ti Ass^irir.rts 1 Inst. 3<o. b. 

A-i T ^"^ ': .r :'- r^j-r ilriiiv c::€i he says y't a collat 
V- -LT TM -•; ': V i J-. . ::- .^LTT't^T :r i. th r mi the Right of an Estate 
tjL-' T.':> : .\.5^':s Arl the Reis.::: ther^-:f he savs is the Stat 
."V .'V* -o :\-r :>^: :t :s n:: miie rj the Ten't in Tail as the Lineal 

A::cr rvi.l.-i: s.:rr-f :: th-e Aiithrrit'^-s I have quoted I hoT^e 
1 shjil! hj^ve su^r.'fr-tly rr:vei that the Warr of the Lessors 

r^ -T'.n him ^ a Bar in this Case with't anv Re- 



-.^v ». -. 



j*-»- V. ,^ ,_.i «\N>c ,> — t>Orn_--Jl 

Lcj:^ L::: S. • -7, 71::. 7:.^. 7 x 7 v. 1 Inst. 373. b. & 374. ♦> 
As to the Rt\is.:n :f the Law is^hy a ccllateral Warr shall bar 
I can r.r.i .^r^y ^r.^ i -h-at is nitntirne'd by Coke in his Com. on 
L. 7^.^V \-ir A rrv<urr-r:i:n the Law makes that no one wo'd un- 
nattirally vi.sirhtnt h.s lawf. Keir unless he left him greater 
Aivancm't .\V»ro c^jrsurr:::ur isJiWram posteriiatem su<r 
f^s:u>^ss^ And ac*: this Prestm-.rtirn he savs the Law will admit 
no Prcc: 

How s:lii cr sa::s:act:r\- this Reason may be is not my 
Business to enquire It is encugh that I have shewed the Law 
to be clear & plain in the Pcint 

But I cannot conclude with/t taking: Notice of one Authority 
more a Passage in Cokes 2 Inst. 274. in his Conmi upon the 
Stat, of GIouc. And the rather bee. it is expressly in Point His 
Words are *• If the Lands are intailed to the Wife the coUat Warr 
** of the Husb. shall bar " And so I shall leave this Point 



BARRADALL'S REPORTS B353 

I am next to consider this Case upon the Stat of Glouc And 
endeavour to shew that it is not within that Stat as I hope I have 
already proved it not to be within the Stat of Westm. 
[325] The Words of the Stat of Glouc. are these '* If a Man 
alien a Tenem't that he hold by the Law of England his Son 
shall not be barr'd by the Deed of his FaV (from whom no 
Heritage to him descended) to demand & recov'r by Writ of 
Morbdancestor [sic] of the Seisin of his Mother altho* the 
Deed of his Fa*r doth mention that he & his Heirs are bound 
to Warr And if any Heritage descend to him on his Fa'rs Side 
then he shall be bar'd to the Value of the Heritage to him 
descended &c. Likewise in like Manner the Heir of the Wife 
shall not be bar'd of his Action after the Death of his Fa'r & 
Mother if he demand the Inheritance of his Moth'r by Writ 
of Entry w'ch his Fath'r did alien in the Life time of his 
Mother' ' 

The first Branch of this Stat, relates to Alien*a by Ten*t by 
the Curtesy The latter to Alien'a made by the Husband in the 
Wifes Life time of her Land It is within the latter Branch only 
this Case can be bro't if it is within the Stat, at all w*ch I con- 
ceive it is not 

When this Stat, was made 6. E. L there were no Estates tail 
in the present notion of them. They were introduced upon the 
Stat. Westm. 2. not made till 7 years after 13. E. 1. It cannot 
therefore be supp'd that the Makers of the Stat, of Glouc. co*d 
intend to restrain the Alien'a of an Estate not then in being And 
tho' the Word Inher w'ch is the Word made Use of in the Stat, 
may in its general Signific'a as well be applied to Estates tail as 
Fee simple Yet for the Reason given in this Case it must be 
restr to Fee simple Estates only w'ch were the only Inheritances 
then known in the Law 

Upon this Reason I presume Coke in the Pass, just now cited 
from his 2 Inst, in his Comm. upon this Stat. & this Branch of 
it says If the Land is intailed to the Wife the coUat Warranty 
of the Husb. shall bar w'ch proves this Opin. that the Stat, only 
extends to Fee simple Estates of the Wife. 

Then Litt. S. 712. before cited says * A collat Warr is a Bar 
'* to him that demandeth the Fee tail except in Cases that are 
** restr by the Stat & in other Cases as shall be sayed hereafter " 
And in all the Cases put by h"m as Exams to his gen'l Rule 
there is not this of the Husband's Alien'a with Warr of the Wifes 



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h;*. \:.*: E\, c: this Statute has z:t r^e^n carrd so far as to the 
;.r' v-r.t Cav; vfz an Ali-en'a hy the H-^b. of the Wiles Inher. 
;r *,;«;: a-, :-. ;.rovf:<i h«oth frcm Litt. &: Ccke And therefore I con- 
fl^i^lf. that this Case is quite out cf the Stat of Glouc. & conseq. 
*},nt th'-re \,^.;r.y or not being Assets dc^es not differ the Case 



BARRADALL^S REPORTS B355 

But if this Case sho'd be taken to be within the Eq. of the 
Stat. Then there being Assets the Warr is unquestionably a 
Bar to the Value 

For tho' no Mention is made of Assets in the latter Branch of 
the Stat, that speaks of an Alien'a in the Wifes Life Yet the 
Words ** Likewise in like Manner " so couple the two Branches 
tog*r that it has been always taken & understood that Warr 
& Assets are a Bar in that Case as well as if the Alien*a was by 
Ten*t by the Curtesy 2 Inst. 294. 

And the Words of the Act in the first Branch are very express 
** that if any Heritage descend to the Heir from his [327] Father 
*'he shall be bar'd to the Value " 2L E. 3. 28, 29. 1 Inst. 365. 
a. 8 Co. 52, 53. Sims Case. 

In this Case the Assets descended are of the Value of 288-15. 
The Prem. ;^.323-15. So that in any View the Lessor can only 
have Judgm't for the Value of £.35. 

For the Pit. it was insisted as to the 1. Point that having bro't 
his second Ej. within ten Years after Judgm't ag*t him in the 
first he was within the Equity of the Saving Clause of the Act of 
Lim And so the Court seemed to think 

As to the 2. Point it was insisted that the Lease & Rel. made 
no Discontinuance the Estate was not divested displaced or 
turned to a Right & so the Warr was no Bar — This being un- 
answerable was acquiesced under 

Judgm't for the Pit. Apr. 1741. Rightly as to the 2 Point. 

But Q. as to the first. 

Vid, as to 2. Point ante 197. the Case of Richardson & Mount- 
joy & these Authorities 1 Inst. 388. b. 271. b. Lit. S. 606. Sey- 
mors Case 10 Co. 96. b. 1 Sand. 260. Cart. 208. 

Dancy & al ag't Willard's Adm'rx 

The Case is shortly this 

A man dies intestate leaving two Parcels of Land & a personal 
Estate not suffic't to pay his Debts He has no Heir in this 
Colony His Widow takes Adm'econ & also enters upon the 
Land She administers all the personal Estate paying among 
others a Debt by Bond 

The Pits, being Simple Contract Cred'rs unsatisfied bring this 
Bill ag't the Adm'x praying a Discovery of the personal Estate 
& a Satisf. out of that but if that is not suffic't then out of the 



T':ti •z^^rT'.n-il Zi^-ir-: is italic r. ITj^e HiiC'i Zecr r f r"r 



il^-:*tr:^ it inkni.^v^ ± tjlc Z#tf:. zi r :.sfii:tL :t iliie Lane iJj? Corr 



Lar.'ii i'--:.:tr: fn'i ' /->' t: ' t:-^ ':»rc i rhe B.icii Deer -rinh Tch. 
hi* IS ^h^iTTTal'-.e z^zz. 'i»r*rn t i it:^ :i zhe rer5»:nal Assets 

Ar..i "r.ii * •^-.Tijti*: 5«: iiear a r irn- n n-: iirat I ii-l ZfZZ ex- 
s*^-' I ih'". i '-e cnt *: lie Tri^i'ile :c sij-n^ n~cri :n *hai Head 

1 ^iiC»"i rr "1 le ^T^ Tm. '* Tt^ii*. iiv^z_** m .^.'Z. t.^t^t wnien? \.reo. rs 
Tc?.*'. ::an iharz* the r^al Eit^te 'srill vet tike Sattsf. out cf the 
z/'frv.rjiL TrhrrretT ther^ is a D*r±':Ler.cv :: Aisets tc satis£e other 
Crr^ ri Trh'. ::an :rlv zharxe the cer&iral Estate at Law Ec^tv 
ir.W z^'i* the list rnent' i Cpri'rs ir. the Place •:: the f rst & decree 
th/rtn a ^ati^f 'Ot:t of :he real Estate 

Tr.us £3 certainlT azreahle to natural Justice that the Heir 
sr.'riA z^SLT that Burthen :he Law has cast upon him when 
oth-^rrTrise his Ancestors E>eh:s cannot be satisned It is founded 
ury-^n th-r Rule of E-tualitv & an:ther Rule He that will have 
Eq. rr.u%t 'io Equity 

In the Nature of Things abstracted from positive Laws all 
I>:r/t^ are equal & ought to be equally satistied Equity however 
will not so far supersede the Law as to subj. the real Estate at 
all Events But where there are Debts with w'ch that is charge- 
able it will lend its Assistance to put that Burthen upon it w*ch 
by Law it ought to bear And will take away from the Heir his 
unreasonable Gain to make up the Loss w'ch the Simple GDntract 
CrftfVrs wo'd other^'ise sustain 

And as the Heir is intitled in Eq. to the Aid & Assistance of 
the personal Estate where he is charged with his Ancestors Debt 
& there is personal Estate suffic't to pay it So by the same Rule 
of Eq. where the personal Est is swept away by Debts with w'ch 
he as Heir or the Lands descended to him are chargeable He 
otj^^ht to satisfie those Cred'rs who can only charge the personal 
Estate at Law. 



BARRADALL'S REPORTS B357 

Besides it is obvious that unless Eq. did interpose upon these 
Occasions a Door would be open to great Frauds for how easily 
might an Ex'r by Combination with the Heir suffer all the 
personal Assets to be to be [sic] taken for Debts with w'ch the 
Heir is chargeable & so entirely defeat the Simple-Contract Cred'rs 

Thus as well to prevent Frauds as to do equal Justice to 
Cred'rs It has long obtained as a settled & established Rule in 
Eq. that wherever Debts with w'ch the real Estate is chargeable 
are paid out of the personal Assets And there is not suffic't left 
to satisfie other Cred'rs that the real Estate shall be answerable 
for the Value of the Debts paid. 

And this Eq. has not been only extended to Cred*rs but even 
to Legatees 

As where a Testor mortged his Land & also entered into a 
Stat [sic] to the Mortgee And by his Will devised a Legacy of 
500;^. And [329] the MortgeB took the personal Estate in Exon 
upon the Stat, so that there was not suffic't left to satisfie the 
Legacy The Legatee had a Decree ag't the Heir to be satisfied 
out of the Land 2 Ch. Ca. 4. Anonimus If Eq. will give this 
Assistance to a Legatee How much more to a Cred'r Indeed the 
Chancellor in that Case declared that tho* the personal Estate 
ought to be applied to ease the Heir where he is chargeable with 
his Ancestors Debts Yet where there was a Deficiency of Assets 
to pay other Cred'rs or even Legatees the Heir sho'd not turn 
his Charge upon the personal Estate but that where both co'd 
be satisfied both sho'd be satisfied And sayed it looked like a 
Fraud to charge the personal Estate with the Martg'a And cited 
sev'l Preced'ts of the like Decrees 

The like Point is determined in Culpeper & Ashton 2 Ch. Ca. 
115. And there sayed when the personal Estate is emploied in 
Ease of the Heir & Lands so much of the real Estate as is eased 
shall be liable 

So there being a Judgm't Cred'r & a Bond Cred'r And the 
Judgm't Cred'r took the personal Estate in Exon Upon a Bill 
bro't by the Bond Cred'r to be put in the Place of the Judgm't 
Cred'r Com'r (Hutchins) was for relieving him saying in many 
Cases the Heir has the Fav'r & Assistance of the Court to make 
the personal Estate liable to Debts in Ease of the real And he 
thought it reason'a e converso that as the Heir was to have Equity 
he ought to do Eq. But w't the Decree was does not app'r 
Powy a Marsh 2 Vern. 182. 






■^' . • -: X ? r- line -1 "-r-i- '%i. 

v,r-r :-,r a Sa^L-.f. -,»:- -.f Tlie r^al E*::i*-i i: -je^^rill have hai n r^- 



•'...» 



Tr.'i ^r.!v (/-i-^.ti'.r. thrrr. 15 Whether :m-ier rhe CircT:rr..staiices 
fA *r,;^ Ca-^ th^ Hr::r hein^ ah^ser^t i trnknc-jm & the Deft, ii: 
Po<.'/.^ri of *hft Lar.i the Cctirt ttlI n:t 5*-ih;. the Land in the 
Haryh of th*: Deft. \r. ihe same Manner as thev wo'd if it was in 
*,h^; llar.^!^ of the Heir to satLsne the Pits. Demands. 

There 7/u\ e/rrtainly be a failure of Justice if the Co'rt will not 
'nAf-s^A/: the Heir may never come here He may sell with't 
ry/rr.in;; & then the Fits, must be quite with't Remedy 

I ean ve no Diff . in Reason between this Case & the common 
OTif %'\\('T(t an abse-nt pson is indebted & has Effects in the Hands 
fA a third f>son In w'ch Case this Co'rt relieves every Day 

The iJeft. is und^/uhitedly accountable to the Heir for the 
I'rofitft And conseq. to the Pits, who are his Cred'rs Admitting 
tliat thf Deft, ought not to acco't for any Profits past upon the 
Matters rlisf:Iosed in her Answer Yet surely she will be for future 
I'n^fits hi'X hvr then either pay an annual Rent till the Debts 
are rlisrharj^ed or deliver up the Land to be sold 



BARRADALL'S REPORTS B359 

One Parcel would satisfie Pits. Deft, may keep the other for 
her Dower And as the Land is of small Value & will not pay the 
Pits, in many years we hope one Parcel will be decreed to be sold — 
It is the Course of Eq. where Profits will not pay Debts in a 
reasonable Time And was so decreed here lately in one Ogilby's 
Case 

Boni Judicis est ampliare jurisdiciionem Co*rt sho'd extend the 
Arm of Justice further than usual where there wo'd be otherwise 
a failure of Justice. Fr Jekyl Council Prec. Ch. 329. 

As to the Distinction betw. Debts that are an actual Lien upon 
the Land & those with w*ch the Heir is chargeable in Respect 
of the Lands descended to him there is no Foundation for it in 
Reason or Authority. 

No such Distinction in any of the Cases And tho* they are all 
Except Sal. upon Mortges &c. w'ch are actual Liens Yet the 
Reasons they turn upon hold as strongly where they are not so 
but the Heir is only chargeable 

The Reasons are L Upon the Rule of Equality that all the 
Cred'rs may be satisfied 2. bec'a the Heir has freq. the aid of 
the personal Estate & therefore ought to do the same Equity 
he receives & 3. to prevent Frauds & Combinations betw. the 
Heir & ExV 

All these Reasons equally hold whether the Land is chargeable 
itself or the Person of the Heir in Respect of the Land 

But the Case in Salk. was upon a Bond Debt & so is a full 
Ans'r to this Obj. See also Talb. 54. Chancellor's Opin. 

[331] Edmondson vs Tabb. In Council. 

Thomas AUaman seised in Fee of 700 A. of Land died Intestate 
leaving Issue Judith a Dau*r by his first Wife and by his 2d Wife 
3 Sons John, Thos. & W'm 

John & Thos. both died under Age with't Issue 

W'm entered & was seised & died seised in 1732. leaving a Wife 
Thos. a Son & Sara a Daughter. 

After his Death his Wid'o cont'd in Possion & marr'd John 
Tabb by whom she had Issue Humphry Toy Tabb 

Thos. the Son of W'm died soon after his Fa'r under Age & 
with't Issue Sara died in 1741. with't Issue being ab'tl2 Years old 

Tabb & his Wife being in Possion sued out an Escheat Warr't 
in Order to obtain a Grant of the Land either to the Wife as 



B'M'A) VIRGINIA COLONIAL DECISIONS 

being in Possion or to their Son H. T, Tabb Bro'r of the half 
Blryyi to Sara 

An Inquisition has been taken & returned Judith the Dau'r 
of Tho's Allaman the Grandfa'r enters a Caveat She is Aunt 
of the half Blood on the Fathers Side to Sara 

Since the Inquisition Tabb & his Wife are both dead I app'r 
for their Son the Bro'r of the half Blood And the Question is 
Whether Yo'r Hon'r will order a Grant to him Or to the Aunt 
of the half Blood. 

They are both equally excluded from the Succession by the 
Rules & Maxims of Law concerning Descents I presume therefore 
Yo'r Hon'r will consider this Case abstracted from those Rules & 
favour that Party whose Pretensions are best supported by 
Reason Equity & natural Justice 

The Aunts' Equity is founded solely in this that the Inherit- 
ance came originally from the Allamans And she being one 
ought to be preferred to my Client who is only a BroV of the half 
Blood by the Mother's Side & not of the Blood of the Allamans 

This at first View may seem an Argum't of some Weight but 
when closely consid'd it will app'r to have little Foundation in 
the Reason of things & strict natural Justice Its whole Weight 
& Force if I mistake not take its Rise from the Rules of Law 
concerning Descents It is a Rtde in the Law of Descents that 
an Inheritance coming from the Fa'r shall never resort to the 
Line of the Mother but shall rather escheat 

This Rule is in a Manner peculiar to the Law of England I 
cannot say it is absolutely so because I have read that in some 
of the Provinces of France w'ch are governed by theirown par- 
ticular Customs the same Rule obtains But it is not the public 
or general Law of the Kingdom Neither is it an Institution of 
the Roman or Civil Law Of the Jewish or Grecian Laws or any- 
other Laws that ever I read of * 

It is very certain Mankind are generally preposses'd in Fav'r of 
the Laws of their Country And are apt to think them the most 
agreable to Nature & Reason But I humbly appr that the Rule 
we are speaking of is a meer arbitrary Institution not founded 
on the Reason of Things or natural Equity & Justice [332] For 
where is the Reason that a very remote Relation on the Father's 
Side sho'd be preferred to a very near Relation on the Mothers 
Nay that the Land shall rather escheat than come to such near 
Relation The Law of Nature calls the nearest Relations to the 



BARRADALL'S REPORTS B361 

Succession for this Reason that Men are bound by the Laws of 
Society to provide for them in the first Place And the Presump- 
tion is that there is the greatest Affection towards them Every 
Law then that excludes the nearer Relatives in Fav*r of the more 
remote is in my humble Opinion contrary to the Law of Nature 
& Reason 

I have sayed thus much Sir in hopes it may serve to prove 
w't I at first advanced that our Adversarys Pretensions are not 
founded in the Reason of Things & natural Justice but take their 
whole Force from a Rule of Law cone Descents w'ch I apprehend 
has nothing to do in the present Question. Nor prove any Thing 
as to the Reason & Equity of the Thing for tho' these Rules 
ought to be strictly adhered to in Courts of Judicature where the 
Judges are bound by an Oath to determine according to Law 
Yet where a Matter is left at large to the Will of the Prince or of 
those who act under him I humbly conceive the Law of Nature & 
Reason is the best Guide to foil 

This Sir is the Ans'r I give to the Pretensions of our Adversary 
I will now beg Leave to say a Word of the Equity on our Side 

And first, I appr. that as we are in Possion & have made the 
first Applica. We are intitled to a Grant by the Charter granted 
to this Country the 18. Car. 2. The Words of the Charter are 

** All Lands possed by any Subj. inhabiting in Virg'a w'ch is 
** escheated or shall escheat shall & may be enjoyed by such 
*' Inhabitant & Possessor his Heirs & Ass. forever paying 2 lb 
*' Tob*o for every Acre 

I can't say how this Charter may have been construed But it 
seems plain to me that the Intent was that the Possessor of any 
Land escheated sho'd be preferred to a Grant of it How else can 
the Words be satisf'd " All Lands possed w'ch shall escheat 
shall & may be enjoyed by such Possessor " If this was not the 
Intent of the Charter I sho'd be glad to know w't the Use of the 
Clause was or if those Words ** Lands that shall escheat " 

I shall submit this Point to Yo'r Hon'rs I thought it my Duty 
to urge this Matter for my Client And the rather as I have not 
known any Determination of the kind 

But if this will not prevail Then I humbly contend that We 
are the nearest Relation a Bro'r of the half Blood And on that I 

Acco't have the best Title to be preferred It will scarce I pre- 
sume be disputed but that a half Bro'r is a nearer Relation than 
a half Aunt If then the Rules of Law cone Descents & the i 



I 



Bli&Z VIRGINIA COLONIAL DECISIONS 

Argum'ts deducible from thence are out of the Question as I 
conceive they are I do humbly contend that by the Law of 
Nature we have the best Right to succeed 

There is no Law I believe except the Law of England that 
absolutely excludes the half Blood from the Succession And I 
[333] believe it would puzzle a Man to assign any one tolerable 
Reason why it should be so I mean in the Reason & Nature of 
Things 

The Roman or Civil Law is certainly much more equitable 
w'ch allows Brothers of the half Blood to succeed in the second 
Place that is where there are none of the whole And in collateral 
Descents makes no Distinction betw. the whole Sc half Blood. 

1. Domat 684 Hist. Com. Law. 214. 

The Jewish Law makes no Distinction between the whole & 
half Blood Nor do I remember to have read of any such Dis- 
tintion in any of the Grecian Laws 

The Roman Law is all*d to be the most equitable Law in the 
World And I presume will be thought no bad Guide to follow 

Besides it is plain that there is no other Foundation for the 
Difference betw. that & the Law of Engl'd but the Rule cone. 
Descents for even by our Law in the Succession to Chattels no 
Diff. is made betw. the whole & half Blood 

Upon the whole I rely first upon the Charter We are in Posses- 
sion & made the first Appl. 

2. That if we are excluded by the Rules of Law So are they 
And then as we are the nearest Relation We have the best Title 
to be preferred. 

3. We sho*d even succeed by the Roman Law And as that 
is y'e best Pattern of natural Equity & Justice I hope it will be 
a good Rule for Yo'r Hon'rs to follow 

The Reason why the Laws prefer the nearest Relations is from 
a Presumption that the Intestate would have done so if she had 
made a Will If this Arg't is to weigh there can be little Doubt 
but that a pson wo*d rather prefer a Bro'r of the half Blood than 
an Aunt 

I only add that we have some Equity in Applying first & 
having been at the Expence of an Inquest &c. 

Our Rules of Descent are meer arbitrary Institutions not 
founded on the Reason of Things or natural Justice And had 
no better Foundation perhaps than Accident or the humours 



BARRADALL'S REPORTS B363 

or Designs of particular Men They are not the Subj. of any 
written Law but have been introduced by Custom & Usage & 
have undergone various Alterations as app*rs from Sr. M. Hale 
Hist. Law. 

[Barradall proper (Law Library Copy) apparently ends here. The pages that 
follow are in a different handwriting, and the editor will be better able than I am 
to determine their relation to Barradall's Reports. To me they seem to be the 
opinions of the persons who signed them. — W. W Scott.] 

The pages follow'g are in a different hand, and horribly misspelled throughout 
— -W. W. S.] 

[334] A CASE 

Mary Whaley of the Parish of Bruton near Williamsburg in 
the Colony of Virginia but at the time of her Death and several 
Years before at the Parish of St. Marg'ts Westminster in the 
County of Middlesex Widow made her last Will and Testa, in 
Writing under Hand and seal bearing date 16th of Feb*r 1741, 
and executed the same in the Presence of three Witnesses who 
subscribed their Names thereto did thereby among other things, 
give devise & Bequeath as follows, I give Devise and Bequeath 
unto the Minister & Church Warden for the time being of the 
s*d Parish of Bruton in the County of York in the Colony of 
Virginia and their Successors a Certain Peice or Parcel of 
Land in the said Parish of Bruton Containing by Estimation 
10 a. little more or less together with Matteys School House 
and Dewling House lately Erec'd and Built thereon for the Use 
of a School-master to teach the neediest Children in the same 
Parish who shall be offered (in the Art of Reading Writing and 
Arethmetic) and Bounded by the Main Road leading to Queens 
Creek and beginning at a Gully of Runing Water surrounding 
the s'd 10 Acres of Land and adjoining on Mr. Peppers Land 
which peice or parcel of Land, Schoolhouse & Dwelling House 
together also with all out Houses, Gardens and appurtenances 
thereunto Belonging, I give and devise unto the s'd Minister and 
Church Wardens for the time Being and their successors forever 
upon Trust to Continue the same for the Use Benefit and Behoof 
of the said Matteys school for the purposes above mentioned to 
Eternalize Matteys School by the Name of Matteys School forever 
and to and for no other Use intent or purpose whatever I give 
to Matteys School af'd the summ of fifty Pounds Sterling to be 
paid to the said Minister and Church Wardens for the time being 
and their Successors at the rate of ten pounds A year for the Use 



r.-i 



,x ,, 




«.^' >. 






Ar.l rr-a.i't ''ine< FrxnrLfrT Ex r :i 2'rr s' 1 WiZ Wz: h-iih 

Br 2.r. A'JZ :: Par li^merit z:uiie 1:1 the 9th Year :: his Present 

Ma'-^r^tv rl:r^ Ge^rzr the feitrc irthlei An Art tc Restrain the 

> ^ -> - 

D'jit.c<:t:'.n 'it Lani? •:^her^hv the same Became unalienahle is 
arr.'.r.^ oth-trr thir^i Enactei that trtm ani after the 24. c: Jtme 
'xhi'.h shall be :n the Year :: cjlt Lcri IT^.^** no Manners Lands 
an-i Tenem'ts R-rnts a.ivv-ii«:r_5 or ether Hereiitantents Cort;»:real 

or Ir-Cort,r,reaI ^rhat^.ever or anv sum or stints cf Monev Gc-ckIs 

* « « 

Chattels Stocks in the Puhhck Funis Securities for Money or 
any other Personal Estate whatsoever to be laid out or disposed 
of in the Purchasing or any Lands or Tenements or Heredita- 
ments shall be given granted aliened Limited released transferred 
or a=i signed or appointed or any ways Conveyed or settled to or 
u^K^n any Person or Persons Bodies Pollitick or Corporeate or 
otherways for any Estate or Interest whatsoever or anyways 
Chari^ed or incumbered bv anv Person or Persons whatsoever 
in Trust or for the Benefit of any Charitable Use whatsoever 
unl'r^s such gift Conveyance appointment or Settlem't of any 
such Lands or Tenements or Hereditaments sum or Sums of 
Money or Personal Estate (other than Stocks in the Public Funds) 
be and be made by Deed indented sealed and Delivered in the 
presence of two or more Credible Witnesses 12. Calender Months 
at Ivfiast before the Death of swch Donor or Grantor includ'g 
the Days of Execution & Death and be inroUed in his Majesties 
High Court of Chancery within six Kalender Months next 
after the Execution thereof and unless such stock be transfer*d 
in th(; Publick Books usually Kept for that Purpose six Kalender 
Months at least before the Death of such Donor or Grantor in- 



BARRADALL'S REPORTS B365 

eluding the Days of Transfer & Death unless the same be made 
to take Effect in Possession for the Charitable Use intending 
[336] Immediately from the making thereof and be without any 
Power revocation Reservation Trust Condition Limitation, 
Clause or agreement whatsoever for the Benefit of the Donor 
or Grantor or any other Person or Persons Claiming under him 
And be it further Enacted by the authority af'd that all 
gifts Grants Conveyances Appointments Assurances Transfers & 
.Settlements whatsoever of any Lands Tenements Heriditaments 
or of any Estate or Interest therein or of any Charge or Incum- 
berance Affecting or to affect any Lands Tenements or Heridita- 
ments or of any Stock money Goods or Chattels or other Personal 
Estate or Securities for Money to be laid out or disposed of in the 
ptirchase of any Lands Tenements or Heriditaments or of any 
Estate or Interest therein or of any Charei or Incumberance 
affecting or to affect to or in Trust for any Charitable Uses 
whatsoever which shall at any Time from and after the 24th of 
June 1736. be made in any other maner or form than by this 
Act directed & appointed shall be absolutely and to all intents 
and purposes nul and void. 

The Testatrix did not make any Deed of Gift Conveyance 
appointment or Settlement of the Lands School House & Dwell- 
ing House mentioned in her Will to the Minister & Church War- 
dens of the Parish of Bruton in Virginia af'd or any other Person 
or Persons in Trust for the Charity in her Will mentioned or of 
the rest or residue of her Personal Estate given in and By the 
s'd Will to the Minister & Church Wardens af'd for the Charity 
therein mentioned twelve months (or any other time) before her 
Death acc'g to the s'd Act but only gave the same by her Will 
to the minister and Church Wardens af'd 

Qu'st: W nether the Devise by the s'd Will to the Minister & 
Church Wardens for the time being of the s'd Parish of Bruton 
in Virginia & their successors of the s'd Peice or Parcel of Land 
with the said Schoolhouse & Dwelling House Built thereon upon 
Trust in the s'd Devise is a Null & Void Devise by Virtue of the 
Said Act 

[337] Answer. This Act of the 9th George being not expressly 
mentioned to extend to our american Colonies I am of opinion 

» Charge? W. W, S. 



B/A/i VIRGIXIA COLONIAL DECISIONS 

it '^loth cr^t Bind thera therercre that the Device c: the Loni in 
Vir^finia to a Chant v is not Void bv that act. But as it is a 
Devi=€ to Persons & their Successors who do not make a Ccr- 
p'y ration I conceive it is not su^cient to Vest the real Estate 
but it gives a right to it in Equity in the name of the att. General 
in Virginia ag't the Heir at Law 

Qu. 2d. Whether the Gift to Matteys School of the s'd Sum 
of ^)f)£. to be paid to the Minister & Church Wardens aTd c: 
Bruton & their successors at jf.lO. a year for the use of the s*d 
school is a good Bequest to the s'd ministers & Church W^ardens 
af VI and their successors & if the Ex'r of the s'd Will mav safelv 
pay the sVl 50j^. to them notwithstanding the s'd Act or whether 
the s'd Gift is null & Void by Virtue of the s'd Act 

Answer. I am of opinion this Legacy of ;f .50. is good and ought 
to be paid by Installments of ;f 10. annuity till the whole is paid 
& the Ex'r may safely pay it to the Minister & Church wardens 
for the Benefit of the school. 

Qu. 3d. Whether the Bequest by the said Will of all the rest & 
residue of the Testatrix's Personal Estate after payment of her 
Debts and Legacies to the minister & Churchwardens for the 
time being of the said parish of Bruton in Trust for the use & 
Behoof of the said Matteys School for the purposes in the said 
Will above mentioned is a good Bequest to the said Minister & 
Churchwardens & if the said Ex'r may safely Pay to the Minister 
Sc Church Wardens af 'd of Bruton all the Rest & Residue of the 
Testatrix's Personal Estate for the purposes & Upon the Trust 
in the Will mentioned not withstanding the said Act or Whether 
the Bequest of the rest & Residue of the Testatrix's Personal 
li^state is Xul and Void by Virtue of the said Act 

Answer. I am of Opinion this residuary Bequest is good & the 
Ex'r may safely pay the residue to the Minister & Church 
Wardens 

Qu. 4th. Which is the Best and safest way for the Ex'r to act 
to prevent his Coming into any trouble about the Lands Devised 
to the Minister & Church Wardens [338] afs'd and also the £,bO. 
& the Residue of the Testatrix's Personal Estate Bequeathed 
upon Trust for the Charitable Uses afores'd 

Answer. The safest Way for the Ex'r to act would be for an 
Amicable suit or information of the Att'o General the Relator 
of the Minister & Church Wardens ag't the Ex'r Heir & to Estab- 
lish the Charity & to have the proper Directions for the Manage- 



BARRADALL'S REPORTS B367 

ment of it, if all parties live here it may be brought into the Court 
of Chancery here but if the Heirs live in Virginia the Informa- 
tion should be brought into the Court of Equity in Virginia & on 
such information, such Directions may be given as will indim- 
nify the Executor in Relation to his Conduct 

Signed D. Ryder 

9th March 1743. 
Robert Jones Junior, and Sarah his Wife I a n f 

And Dudley Richardson and Martha his Wife | 

James Shields Respondent 

The Appellants Case. 

By a Certain Act of Assembly passed in the Fourth year of 
Quee Anne it is Enacted that all Negroes within this Dominion 
or Colony of Virginia shall from thenceforth be adjudged to be 
real Estate and descend to the Heirs and Widows according 
to the Custom of Lands of Inheritance in Fee simple in which 
act it is Declared and Provided that in several Cases in the 
Act mentioned they should be held and adjudged to be personal 
Estate in the same Condition they would have been if this Act 
had never been made and that upon [sic] 

Which Act was afterwards Explained by [sic] 

another act of assembly, which passed in the first year 
of his present Majesties Reign Entitled an Act to explain 
and amend the Act of the fourth of Queen Anne by which 
Act after reciting that that Act [339] had been found bene- 
ficial for the preservation and Improvement of Estates in this 
Colony yet that many mischiefs had arisen from the various 
Constructions and Contrary Judgments and opinions which had 
been made and given thereupon whereby many people had been 
Involved in Lawsuits and Controversies which was still Hkely 
to Increase: For remedy whereof and to the End the said Act 
might be fully Explained and understood; it is Enacted amongst 
other things, in the words following Viz : that the said Act of the 
fourth of Queen Anne shall hereafter be Construed and the true 
Intent and Meaning thereof is hereby declared to be in the 
several Cases hereafter mentioned as the same is herein after 
mentioned and declared and not otherwise; viz; that the pro- 
perty of a Slave should be Transferable by Bargain and sale gift 
or Will in the same manner as if such slave were a Chattle and 









^ X. 









t .-r»- _^ __ 



.^£- _ 






V" " - . -^ PnlrT' — ■>.- l^-Tr ::' Yirk Ci-mrv in rhe Ccl:i:\- •:: 

* irv^mi L»ziii_i "^ *"-* ■ . -"" •^ 'L.i! - s.n 2. ^^ *z.c Time" ct ..is L.*to~ii 

5<«^=r:l &r.i p«'.'55<rfs-ri if 51111 irv Xem Slsves rz^ie his Will the 

vi=^i s*evt^ Xr-rr: Slaves, vir H^rmh^.! ani Betty his Wife. 
P^t^T F::ll:tt. B^ttj a G:rl. s^i T:tn a Brv. Billy a Bc-y, and 
V^-n? Kir.r^''3^ a B:v t: hi? I'2.uzhter Rerecca Pinkethman 

7:.* V,::: of Mr. Pinkt-i r — s r :. Deer iTlil 

'yAh\ The TeEtatcr si-cn after died iea\-ii:g Rebecca his only 
Cr.ild and Heir at Law who afterwards and since the passing 
this Act of the fourth of Queen Anne, and when she was possessed 
of the said seven Slaves intermarried with one Robert Cobbs of 
^'ork County af ores' d who by \-irtue of such his intermarriage 
fA'came intitled to the absolute and beneficial Interest and 
property of and in the said seven Slaves and their Increase and 
uj->on his marriage possessed himself thereof 

The said Rebecca Cobbs afterwards died in the Life time of her 
said Husband leaving Issue one Daughter Elizabeth her only 
('hi Id and Heir at Law. 

UrU'ifadicd 1712. 



BARRADALL'S REPORTS B369 

The said Robert afterwards intermarried with another Wife 
named Elizabeth by whom he had Issue two Children only Viz : 
the Appellants Sarah and Martha, the said Robert Cobbs being 
possessed of the said Slaves and other Real & personal Estate 
duly made his Will dated 10th of December 1725. and thereby 
after giving several specifick Legacies ** devised the residue of his 
Estate Real and personal to his said Wife Elizabeth for her Life ; 
and after her Decease to the Appellants his Daughters Sarah and 
Martha Equally if then Living " and of his said Will appointed 
the said Elizabeth his Wife and one Daniel Allen since deceased 
Executors who after the Death of the said Robert Cobbs viz; 
the 21st February 1725 duly proved the same 

Upon the Death of Robert Cobbs Elizabeth his Widow and 
Devisee for Life of the said Slaves intermarried with one Samuel 
Weldon and they were intitled to have possessed themselves of 
the said Slaves but the said Eliza'h Cobbs daughter of the said 
Robert by his First Wife having in the Life time of the said 
Elizabeth Weldon intermarried with the respondent James 
Shields of Virginia Aforesaid the said Samuel Weldon and Eliza- 
beth his Wife either under some agreement or thiough mistake 
or imposition misjudging her Title were prevailed upon by the 
said Respondent to permit him to take and keep possession of 
the said Slaves and their ofspring and Continue the possession 
during the Life of the said Elizabeth Weldon. 

The said James Shields put in his Answer plea and Demurrer 
to the said Bill 

The said plea and Demurrer were argued and the plea ordered 
to stand for an Answer and the Demurrer being overruled with 
Costs from which order the respondent prayed an appeal to 
the General Court but was refused as the said order did not 
determine the right to the Negroes in Question 

The respondent afterwards put in his further Answer and 
there by and by his former Answer admitted and stated the said 
[341] Wm. Pinkethmans Will and Death leaving the said Re- 
becca his Heir at Law seised as aforesaid who afterwards inter- 
married with Robert Cobbs and by him had the said Elizabeth 
and Died and that the said Robert made such Will as in the Bill 
and died leaving Elizabeth his Widow and that he married Eliza- 
beth the daughter of Rebecca and in her right got possession of 
the several slaves of whom the only then living were Hannibal 
a Man Jack a Man Squire a Man James a Boy Will a Man George 



^"T-r-r-i:-'^ icsi^ 






.* :. 



A^ 






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.f. -^ 





















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in ^ I "~r II- 1 "^ HI iH "sris ^ 



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tr_ * c 






ihe saii cecnee and 


















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'-<a'« ^^ T^c c in . fl 



r XatTire and bef :r\e the 
Anr.e Chattels in their 



BARRADALUS REPORTS B371 

own Nature and what a Husb. there gained the property of in 
the same manner he gained the property of any other Chattel 
belonging to the Wife 

Secondly. This Stat, of the 4th of Queen Anne neither altered 
the Law nor intended to alter the Law in this respect this act 
being made to prevent Negroes from being Distributable amongst 
the nex of Kin or going to Executors or administrators by which 
means they woud be divided and dissipated and in order to pre- 
serve them intire in Families to make them descendible as In- 
heritances to the Heir at Law but as to every other respect to 
leave them as much Chattels as they were before, and Conse- 
quently subject to the Husbands acquiring a property therein 
to the Wifes Slaves by marriage as the Law stood before the 
passing this Act. 

Thirdly. That if a Doubt could have arisen upon the Con- 
struction of this Act of the fourth of- the Queen touching this 
matter that Point is now cleared up and made certain by the Act 
of the first of his present Majesty: for by this Act of the first of 
his preset Majesty which is neither a Repeal of the fourth of Queen 
Anne nor an Introduction of any new Law but merely declara- 
tive of the sence and mean'g and Effect of the former Statute 
of the fourth of Queen Anne it is Expressly declared That it was 
not the intent of that Act of the fourth of Queen Anne to take 
away or alter that right and property which husbands were In- 
titled to or might gain in or to such slaves as were the property 
of their respective Wives 

Fourthly. That there never was any Decree or Determination 
touching the property of the Slaves and their offspring prior to 
the Exhibiting the Appellants Bill or to the Decree of the county 
Court of York in the present Cause 

Fifthly. That the absolute property of the said slaves became 
vested in the said Rob't Cobbs upon his marriage with the said 
Elizabeth the Devisee and Heir at Law of the said William 
Pinkethman who first devised the s'd Slaves and the said Rob't 
Cobbs had thereby full power to devise the said Slaves and their 
offspring and as he has devised all his Real and personal Estate 
to the Appellants Sarah and Martha after the Death of their 
said Mother, the Appellants Rob't Jones and Dudley Richardson 
in their Right are now become well Entitled to the said Slaves 
and their offspring and therefore the said Court ought not to have 
decreed the Appellants Bill to be dismissed but ought to have 



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r^.rr.:r.:'.r. -'. he R.ral E-.iie: T-^er-rij it was ir.:^^ ^Vu. Enacted 
:r. th-^ z J'.'.-^.r.z 7r:ri5 Viz 

*' 7?^t rr.rr. ani after th-e cas^inz this A:t all Xegro Mulatto 
'' ar.'i Ir.iian f^^laves in all tcurts c: Tnii:ati:n ani other places 

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*' V; P'ral Estate and n'^t Chattels ani shall descend unto the 
'* \W.zs and Widows cf Per^^ons departing this Life according 
'* */> ir.f: C'jstotn and manner of Land of Inheritance held in 

Ary/*r':r Act of Assen'/Lly va^ aft err arcs passed in Virginia 
ir.t.it>:'i an Act for Lin-.itation of Actions and avoiding of Suits; 
v/hc'prhy it '.^as /«/€t a//a Enacted in the foHo\iing Viz: 

** That all actions of Trespass quare Clausum f regit, all Actions 
of Tp' pass, Detinue Actions sur Trover and replevin for taking 
away Cjoofh and Chattels, all Actions of Accounts and upon 
tli'! Ca .c- ^Ahc-r than such Accounts as Concern the Trade of 
M^rr.handize between Merchant and Merchant their Factors 
or S'-rvants) all Actions of Debt grounded upon any Lending or 
C*oTit ract without Spf.-cialty, all Actions of Debt for Arrerages 



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BARRADALL'S REPORTS B373 

** of Rent, all Actions of Assault and Batterey, menace, wounding 
** and Imprisonment or any of them which shall be sued or 
** Brought at any time after the end of this present session of 
** Assembly shall be commenced and sued within the time and 
** Limitation hereafter Expressed and not after, that is to say 
** [344] The said Actions upon the Case (other than for Slander) 
** and the s'd Actions for Accounts and the said Actions for Tres- 
** pass, Debt Detinue and Replevin for goods and Chattels and 
" the said Action of Trespass quare Claiisum f regit within two 
" Years next after the End of this present Session of Assembly, 
** or within five Years next after the Cause of such Actions or 
" Suit and not after. 

" And the said Actions of Trespass of Assault Baterry wound- 
ing and Imprisonment or any of them within one Year, next 
after the End of this present session of Assembly or within 
three years next after the Cause of such Actions or Suit and 
** not after. 

** And the said Action upon the Case for Words within one 
year after the End of this present Session of Assembly, or within 
one year next after the words Spoken and not after. 
** Provided nevertheless and be it further Enacted that if any 
person or Persons that is or shall be intitled to any such Action 
** of Trespass for Assault Menace Battery Wounding or Im- 
** prisonment be or shall be at the time of any Such cause of 
** Action given or accrued fallen or come within the Age of 21. 
** Years Feme Covert, Non compos mentis Imprisoned beyond 
** the seas out of the Country, that then such persons shall be 
" at Liberty to bring the same Actions so as they take the same 
within such times as are before Limited after their coming to 
or being of full age, Discovert, of sane Memory at Large and 
returned from beyond the Seas or from without this Coloney as 
by other persons having no such impediment should be done" 
William Pinkethman being seised of an Estate of Inheritance 
in Fee Simple of and in Sundry Lands and Negro Slaves by his 
last Will of this date devised to his Daughter and only Child 
Rebecca Pinkethman and to her Heirs and Assignes forever, 
seven particular Negroes and died soon after making such Will 
which was proved (in the County Court) on the IGth of February 
next after the Date thereof. 

The said Rebecca Pinkethman the Devisee was the Testators 
only Child and heir at Law and as such she Claimed all her 



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BARRADALL'S REPORTS B375 

And the respondent Shields thereafter Intermarried with the 
s'd Elizabeth. 

After the Death of the s'd Rob't Cobbs and after all the above 
mentioned Transactions, a new Act of Assembly was passed 
Intitled an Act to Explain and amend and Act for declaring the 
Negro Mulatto & Indian Slaves within this Dominion to be real 
Estate and part of one other Act Intitled &c. the material parts 
-whereof follow verbatim '* Whereas the Act made in the 4th 
year of the Reign of the late Queen Anne declaring the Negro 
Mulatto & Indian Slaves within this Dominion to be Real 
Estate hath been found by Experience very Beneficial for 
the preservation and Improvement of Estates in this Colony; 
yet many mischiefs have arisen from the various constructions 
and contrary Judgments and opinions which have been made 
and given there upon whereby many People have been In- 
volved in Law suits and controversies which are still like to 
increase for remedy whereof and to the End the s'd Act may 
be ftilly & clearly Explained be it Enacted that the s'd Act 
shall hereafter be constr'd [346] And the true Intent and 
meaning thereof is hereby declared to be in the several Cases 
** hereafter mentioned as the same is herein after expressed and 
declared and not otherwise that is to say, 
*' Whenever any person shall by Bargain and sale or gift 
either with or w'thout deed or by his last Will and Testament 
in Writing or by any Noncupative Will Bargain sell, give dis- 
pose or bequeath any Slave or Slaves such Bargain Sale Gift 
or Bequest shall Transfer the Absolute Property of such Slave 
*' or Slaves to such person or persons to whom the same shall 
*' be so sold given or Bequeathed in the same manner as if such 
Slave or Slaves were a Chattel, And no Remainder of any Slave 
or Slaves shall or may be Limited by any deed or the last Will 
and Testam't in Writing of any Person whatsoever otherwise 
than the Remainder of a Chattel personal by the rules of the 
** Common Law can or may be Limited except in the manner 
hereinafter mentioned and directed. 

** And that when any Slave or Slaves have been or shall be 
conveyed given or Bequeathed or have or shall descend to any 
Feme Covert the absolute right property & Interest of such 
" Slave or Slaves is hereby vested and shall accrue to and be 
" vested in the Husband of such Feme Covert." 
" And that where any Feme Covert is or shall be possessed of 



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BARRADALL'S REPORTS B377 

Plaintifs but that he himself had a title to them by his marriage 
with Eliz. the Daughter of the said Rebecca Pinkethman, whereas 
they the Plaintifs charged that the Respondent Shields had 
no Right or Title to the same by virtue of such his Marriage And 

Therefore the plaintiffs prayed a Discovery from the Deft, 
when and by what means he became possessed of the said Negroes 
and their Increase & Number Names Ages and Values of such 
of them as ever came to his Hands or were in his possession and 
what was become of the same, and that he might be decreed to 
deliver up the same to the plaintiffs and account with them for 
the Labour of the said Slaves from the Death of the said Eliz. 
the Widow of the s'd Rob't Cobbs and that the Plaintiffs might 
be relieved according to Equity 

The Respondent was extreamly surprised at such an Extraord- 
inary dem'd being now set up by the now Appellants so late 
as in the Year 1748 when had the Law from 1705 for 22 years 
together been capable of any such Construction or the Act of 
1727. been capable of any such a Retrospect as was now Con- 
tended for, there had been in Fact some thousand of Instances 
where Married Women within that period had had Slaves whose 
Husbands might have set up just the like Demand, but there 
can be no pretence that this discovery had ever been made by 
any other person or that any one Decree or Judgment had been 
ever given in Favour of it in any persons Case whatsoever. 

And the Appellants Case is attended with this Further Difi- 
culty that as to them when the New Law made was in 1727 the 
Appellants Father was not the Husband of Rebecca but he & she 
had both been many years dead [348] her Negroes had 12 years 
before that Act was made Descended to & were in possession of 
her Daughter and Heir at Law; and such Daughter was at the 
time of making that new Act her self a Feme Covert and the Wife 
of the Respondent Shields. 

The Deft. Shields put in his Answer Plea & Demurrer and for 
answer admitted the Pits, were Devisees under the Will of Robert 
Cobbs and that William Pinkethman had been seised and pos- 
sessed of Sundry Slaves and had made his Will in Writing as in 
the Bill, and a Devise therein to Rebecca of Certain Lands and 
Slaves and said she was his Daughter & Heir at Law and that 
his Devise to her could not alter her Title to her Fathers Lands 
and Slaves but that the same descended to her as Heir at Law 
and Admitted that she became seised thereof and Afterwards 



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'.: a C'.r.-rir. rr^ic crevi:^i5 t-: bis Virrij.ze hell the saii Lan is 
ar.-f h'.vivr- s-i h^r G-i,iriian_ 'hr Lezal Enaie an i the Re vers: rn 
•.?.-:' V::r-4 :r. -.hr: si Infant Heir ani that the saii Rob't Cohbs 
r>::r.>' '.>4>' tli^n =.'. s^isei iii cften in his Life time declare his 
% '1 O.ntra-r. A: i:s.:'.a:nir i ha-i-inz any :ther title in the s"d In- 
fant & E:tat^ ani never rente vei her Slaves from her Lands and 
hav:n^ maie his Will he therein partictilarly mntd his own 
Lar.i% ani siaves 'i/ne of wh::h he ievisei to the s'd Infant with 
h'rr Increase in Lue of the prints of her Estate exceeding her 
rr.enV:nanoe but omitted all the Lands & Slaves which descended 
to the s*d Infant aforesaid and for that reason made the Larger 
di .tribution under his Will in behalf of the Plaintiffs his other 
iJauyYiU'.rs and G>heirs and this matter was so fullv known and 
M:ttl':d that when Robert Cobbs died in the Year 1715, the Slaves 
of tfic s'd Infant were not Inventoried nor Considered as any 
j^art of the Real or personal Estate of Robert Cobbs, but the s'd 



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BARRADALL'S REPORTS B379 

Infant chose Hannah Shields for her Guardian in that Court of 
Chancery and obtained an order or decree to be put in possession 
of the s'd Lands & Slaves as the seperate property of the s'd 
Infant by means whereof the s'd Infant became seised of the s*d 
Lands and Slaves and the profits thereof from the Death of her 
s*d Father under the Decree of that County Court of Chancery 
and so Continued seised untill her Death, under which Decree & 
relying upon the same he the Deft. Intermar'd with the s'd Infant 
& thereby became a purchaser for a Valuable Consideration of 
her said Slaves without Notice of any such pretended Title as 
now suggested and had Issue by her two Daughters the Heir at 
Law then Living all which he was ready to verify therefore 
pleaded the s'd several descents, the s'd Long qui't and uninter- 
rupted Enjoyment since the death of the said Rebecca and 
Robert Cobbs and the Stattute of Limitations as also the decree 
of the s'd Courts and his purchase for a Valuable Consideration 
under the same without notice in Bar of the Pits. Bill 

And seeing it appeared by the Pits, own shewing that they had 
notice of some Contract or agreement under which he the Deft, 
had so quietly held & Injoyed the premises he Demurr'd to that 
part of the Bill which prayed a Discovery of the names of any 
of the said Negroes or of their Inrcease, or by what special Con- 
tract or Deed he held the same seeing a purchas'r for a Valuable 
Consideration without Notice was not compellable by the rules 
of Equity to disclose his Title and as the Infant Heirs of his Wife 
might be affected thereby and were not made parties to the 
said Bill and Especially as the Pits, deduced their Titles to par- 
ticular Slaves for the reason aforesaid 

The Pits, joined Jssue (as it is called in the proceedings) on 
the said Plea & Demurrer. 

The Court of Chancery ordered the s'd Plea to stand, as and for 
part of the Defts. Answer but adjudged that the Demurrer was 
not good and overruled the same and ordered the Deft, to make 
a further and full answer And to pay the Pits, their Costs oc- 
casioned by the s'd Demurrer 

From w'ch order the Deft, prayed an Appeal to the third Day 
of the next Gen'l Court [350] but the Pits, opposed and the Court 
refused the satne as the s'd opinion did not determine the right 
of the Parties to the Negroes in question 

The Deft, put in his further Answer wherein he again set forth 
and insisted on all the several matters which had been Contained 












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thfv r raved that the s'd Dc^rree 

be a' r Ilee mizb: be Decreed lo de- 



Ar.d th': R*:=i.'Or.dent insisted there was no Error in the s'd 
\)*'/.z''^. h"t that the same was agreeable to the rules of Equity 
ar.^1 \,T2i\'*A that the Citirt wo-d proceed to Examine as well 
t.h^; \)t:(^T*:f: OS the matter afsd Assigned for Error and that 
th^: \)f'/:rf'J: fTiight in all things be affirmed 

('//>)) Thf: s'd a74>eal came on to be heard before the president 
of h;H Maj^:stiV:s Ojuncil and the rest of the Judges of the General 



BARRADALL'S REPORTS B381 

Court in Chancery in Virginia which Court then declared its 
Opinion that there was no Error in the Decree but that the same 
was agreeable to the rules of Equity and therefore decreed and 
ordered the same shoud be in all things affirmed and that the 
parties should bear their own Costs. 

The Appellants not satisfied with the Concurrent opinions of 
Both Courts in the Colony instantly prayed and were allowed 
a further Appeal to his Majesty in Council and gave a Security 
to prosecute according to the royal instruction in that Behalf 
and ought thereby to have prosecuted the same with Effect 
within 12. Months from the tenth of October 1751. 

But instead thereof purely for creating all the Expence & 
Vexation to the Respondent that the Appellants Coud do they 
never took any step towards prosecuting their s'd Appea until 
Febr. 1753. when more than 16. Month were Elapsed altho it 
now appears of the Appellants own shewing that the transcript 
of the papers was had out and Council retained for the Appellants 
in London so long before as in June 1752. 

Under this affected Delay the respondent was under a Necessity 
of waiting and increasing his Expences as long as ever the Appel- 
lants thought Proper to keep back their Appeal or else to petion 
his Majesty in Council to dismiss the s'd appeal with Costs for 
non-posecution 

And as the respondent cotdd not conceive that ever the 
Appellants intended to prosecute their Appeal and as such 
methods of Delay are grown much in Use of Late and seem to be 
an abuse of his Majesties Jurisdiction to the great Injury of Res- 
pon*ts to the present Respondent about the End of January 1753 
presented his petion to his Majesty in Council most humbly pray- 
ing that this Appeal might be dismissed with Costs for posecution. 

And his Majesty was pleased by order of reference to refer the 
s'd Petition to the Consideration of his most Honourable Com- 
mittee and on the 30th January 1753 the Resp't by his Council 
moved their Lordships Accordingly, but their Lordships were 
pleased to respite the matter for two months 

And on the 21. Febr'y then following after that the Appellants 
in Willftd breach of their own Security and of his Majesties 
royal instructions had vexatiously delayed the respondent and 
put him to all the Trouble and Additional Expence which was 
any way in their power presented a petion that their Appeal 
might be received nunc protunc 


















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-:; E-i -s-'iai =erni£ Zensfve in *be rr^esent Case, is, that the 
Catise 'iz.ifz^ w':h the Aii^eZazrs Claim is iraiiifesily incon- 
«iti/^i -jriih ibr an cf ibe 4th :: Ou-een Arrse and to give a Xew 
Law a reir'.«t:*rc^ if ii be within the power, is Contiary to the 
J-jitii^ c: any Legislatiire and therefore such a Construction 
▼/o-nd be irratiotial illegal ani unectiitable 

For which and inanv other reasoiis that mav be offered the 
re«,por-dent humbly hopes that the s'd Decree of the General 
C^ytirt of Chancery of Virginia of the 10. October 1749. shall 
\jtt in all things affirmed and the Appellants Appeal be dismissed 
with full Costs. 

A. Hume Campbell. 
R. Henly. 



■^ 



BARRADALL'S REPORTS B383 

I, W. W. Scott, State Law Librarian of Virginia, do hereby 
certify that I have diligently compared the foregoing pages with 
the Manuscript Volume in the State Law Library, marked 
Barradairs Reports — and that the said pages are a true and 
correct copy of the same. 

Given under my hand this 6th day of March, 1909. 

W. W. Scott, 

Librarian. 



TABLE OF CASES REPORTED BY 
EDWARD BARRADALL 



Page 

ANDERSON & UX. vs. LIGAN B150 

Devise of land; qttestion whether estate tail or in fee; judgment 
for defendant in possession. 

ANDERSON, quitam vs. WINSTON B201 

Debt to recover for taking excessive iistiry; quere whether the 
statute applied to contracts made before its enactment; but the 
case was agreed and no judgment rendered. 

ANONIMUS B107 

Man marries a woman entitled to a part of her father's estate 
and dies before distribution; does this distributive part survive 
to the wife or go to the husband's admr. ? If reduced to posses- 
sion during coverture by the husband, it belonged to his admr., 
otherwise to the wife. 

ARMISTEAD vs. NEWTON B174 

Grant to an infant; failure to seat the land; quere whether 
infancy excused the seating until many years after the grant; 
the judgment was against the defendant who claimed that 
seating uie land had been excused by infancy. 

BANKS vs. BANKS et al B304 

Devise of land to son for certain uses by him; whether the son 
took an estate tail, or an estate for life with remainder to his 
children in fee in joint tenancy, in case they survived him. 

BERNARD vs. STONEHOUSE B60 

Action of ejectment; term having expired held that plaintiff 
might recover damages. 

BERNARD vs. WASHINGTON PARISH & al B272 

Action of ejectment; question of whether a good title passed 
by certain deeds descrioed; effect of grantee's djring in lifetime 
of the plaintiff's father and of adverse possession. 

BERRYMAN vs. BOOTH B42 

Will found after death among testator's papers; a son was bom 
thereafter and testator declared that he would make a will but 
died without doinp^ so; birth of son held to be a revocation and 
that the father died intestate. 

BOYS vs. HOGGETT B80 

Action on bill of exchange held barred after twenty years, by pre- 
sumption of payment. 

BROCK vs. TYNE Bill 

Interpretation of a deed creating an estate taU, as to whom the 
reversion descended. 

BROOKING vs. DUDLEY. DIXON vs. BROOKING, and COLLIER 

vs. BROOKING .B256 

Three actions of detinue for slaves; (question if a sale after 
judjg;ment and money paid to the next fnend would conclude the 
plaintiff, being under age, or bar his rights; effect of the act 
of a next friend upon the rights of an infant. 

BUCKNER vs. CHEW et al B123 

Conve3ranoe of "2,520 a's be the same more or less"; eviction 
of part; whether there was remedy for the deficiency. 



B386 VIRGINIA COLONIAL DECISIONS 

BURGES vs. HACK B195 

Devise of what appeared to be a defeasible fee ; quere if it was 
not an estate tail; neld for the defendant '*tbat it was a contin- 
gent fee" by a vote of seven to four. 

BURWELL vs. OGILBY &c B105 

Bill to subject real estate to pa3rment of debts, the personalty 
being insufficient; will directs that "all my Debts may be paid 
after my funeral expenses"; held that real estate be soAd and 
debts paid, including simple contract debts. 

CHEW vs. STEVENS B166 

A special verdict by a jury and a survey of certain land claimed 
unaer a patent; a claun of fraud and that the grant was void; 
the fraud seemed to be proven but the defendant insisted that 
he was an innocent taker and the grant good to him; judgment 
at first for the plaintiff, but there was a reaxgument and nnallj 
judgment for the defendant hy a divided court. Councilors Blair 
and Byrd changed their opimons. 

COLEMAN & UX vs. DICKENSON B119 

Husband and wife by deed convey slaves (being real estate by 
the law) in trust for their own uses, with proviso that if tbie 
wife should die before the husband she could dispose of the 
negroes by will; husband died first; wife by will disposed of 
negroes and their increase; question if wife had the power so 
to dispose of the negroes. 

COLLIER vs. BROOKING B256 

Same case as Brooking vs. Dudley, B256. 

CORBIN vs. CHEW'S ADM'ORS B155 

Debt on bond; plea plene administravit ; question as to allowing 
to executor payment of certain simple contract debts; no 
judgment but note refers to [223.] 

CORBIN vs. CHEW'S ADMR B239 

Whether deft, paying judgment after full notice of this action be 
a devastavit and if an Ex'or may retain a debt by simple con- 
tract against a bond creditor's; an ex'or's right of set off to a 
debt due by himself to the creditor. 

CROSS CASE B92 

Indictment for stealing a horse; if the horse being a stray, to 
take it was a felony; held that it was no felony. 

CURLE vs. SWENEY B117 

Action of ejectment for land between high and low water mark; 
the accretion was p;ranted by the crown to another than the owner 
of the land, to high-water mark; held that the grant was bad 
and the accretion passed by the first grant. 

DANCY et al. vs, WILLARD'S ADMX B355 

A man dies intestate without heirs; his widow administers and 
enters on the land; simple contract creditors sue; question 
if they mav subject the rents and profits and if insufficient can 
they sell tne land. 

DARBY vs. STRINGER B45 

Slight proof of seating held to save grant of land made many 
years before. 

DIXON vs. BROOKING B256 

See Collier vs. Brooking, B256. 

DUDLEY vs. BOOTH B256 

See Collier vs. Brooking, B256. 

DUDLEY vs. PERRIN et al B343 

Action of ejectment ; a special verdict ; if the lessor was barred 
of his action by the statute of limitations. 



TABLE OF CASES B387 

Page 

DUNN et al, vs, WYTHE B81 

Will of real and personal estate to wife dtirins^ widowhood, with 
provision over in case of her marriage, and she is appointed 
executrix; she died without having married again; held that 
the wife took the whole estate and that it passed to her executor. 

EDMONDSON vs. TABB B359 

One died intestate; leaves widow and children; widow remarries 
and has issue ; question of succession to the half bloods, and the 
right of an aunt of the half blood on the father's side. 

EDWARDS vs, BRIDGER. ., B117 

Appeal from County Court in action of debt; former judgment, 
rendered but not entered, pleaded in bar; demurrer to the plea 
sustained in county court, but reversed on appeal. 

EWELL vs. MILLER & UX, ADMR. &c B2d8 

Action of covenant upon a deed of warranty; demurrer to the 
declaration for lack of certainty; whether warranty covers the 
fadltire of the wife to acknowledge with privy examination. 

FARROW vs. FARROW B261 

Devise of land; then a further purchase after the execution of 
the will; son put in possession on promise to convey the same 
to a brother; question of effect of the father's declarations and 
the son's promise. 

FIELD vs. COCKE B185 

Action upon the case for an escape; verdict subject to a point 
reserved, the question being of the responsibility tor the prisoner 
between the old sherifE and the new ; and the judgment seems 
to have been against liability at all. 

FITZHUGH vs. BURWELL B180 

Question of the effect of a deed by a married woman without 
privy examination; of how far the survivorship of a joint 
tenant and grantor overcame that defect; also effect of long 
continued possession; but the cause was agreed by the parties. 

GILES &VXetal. vs. MALLICOTE B71 

Action of detinue; special verdict; devise of slaves "Quashey 
and Tomboy" construed; and whether child of which female 
slave was quick at the making of the will passed b^ the devise. 
But the case was compromised and no judgment given. 

GODWIN vs. KINCHEN'S EX'ORS B68 

Gift of several legacies with a residuary clause in the will which 
was construed. 

GOODLOE vs. DUDLEY &c B87 

Appeal from Covmty Court ; action bv High Sheriff against under 
sheriff and the surety on his bond, to recover quit rents for 
which the High Sheriff was sued; plea of the statute against 
bujdng and selling offices; judgment for the plaintiff. 

GRAVES vs. KENNAN B43 

Appeal from County Court; action of detinue for a chest of 
medicine; verdict and judgment for the plaintiff below; on 
appeal objection that the verdict found that "the Deft, did 
detain" and not that he '*doth detain," and that Detinue would 
not lie for a chest of medicines without setting forth the par- 
ticular medicines; judgment of County Court reversed. 

HARRISON vs. HALLY B80 

Tudj^ent against a sheriff; attachment against his lands (he 
having no personalty) sustained. 

HARWOOD vs. GRICE B45 

County Court refused to permit an executor to testify to prove 
a will ; held on appeal that he was a good witness. 



B3SS VIRGINIA COLOyiAL DECISION'S 



HAWSIXS 99 TH^RNTOX . ...^ . .B:i4S 



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N5 w. BOXGHAX fc. . B >:7 



HAYWOOD «« jrf- o CHRISVAX*** ji ......_. Bi-7 

crT^ircE , dc: rx* drrae oun, beki as acac::s: lae rtai^. at trae 
fHVii e a ti:at those aiaines vese ki c rr j S rd a ben ot ifae tkSdv's 
<icver asd tbefc^ore xxx co be iH^ arVi l 

HILL rf. HILLS EX'ORS 060 

Bin in fhaTT^nf ' agarrwt heir for possessioa of laad deiiTered 
to ex'or? c^ oertan^tnssss; biAi ihat a c oun of eqizity wodd 
nemer essabiish a in^ against as heir vitboczt a trial at law. 

HILLft UX r5. HENRY A: UX Bl-iS 

Indebixaius assumpsit: uH debis, mom assmmgps^ aad Icmtataoos: 
jgd ^giz jei i t for pit. ai:ri writ at error; arrjirr i ed as ligfat ot actioc 
cot lamd by the statme. 

HUNT vs. HARRATSOX 5 EXORS B4o 

Jadgiaent against Harratson in his tifetzme; scin facias: hdd 
that lavyer^s fee shoold be taxed in bill of costs. 

ISBEL ft UX w- BUTLER ic di B43 

Held that slave given by intestate in his Hfetinie to 3roanger 
child should be taken at value when given and not as of the date 
of *'Tcstor's Death." 

IVEY m. FITZGERALD BlSS 

A question of heirship depending upon the facts proved in the 
case. The judgment of the lower court was reversed. 

JAMESON vs. VAWTER B51 

Appeal from refusal to compel joinder in demurrer to evidence 
ofiered viva voce; held that the court should have made the 
plaintiff join, or have directed a special verdict. 

JENNINGS ft UX vs. WILLIS B43 

If after order entered on argument and judgment affirmed 
another argument should be heard; held **as being without 
precedent." 

JONES vs. LANGHORN Bo2 

Action of detinue; special verdict; woman holding slaves 
devised to her for life, with remainder over, marries and joins 
with her husband in mortgage of the ^ves "for 99 years"; 
husband dies; action by mortgagee against widow for the 
slaves; "judgment for the Deft, per ioiam curiatm praeter 
Lightfootft Tayloe." 

JONES &c. vs. PORTERS B93 

Effect of acknowledgment by married woman, of deed, without 
privy examination; bill to have defect supplied, dismissed. 

KING, THE, vs. CROSS B92 

Indictment for horse stealing, in court of Oyer and Terminer; 
taking an estnty held not to be a felony. S. C. Cross's case. 

KING, THE, vs. HARRISON B66 

Presentment for erecting gates on the King's highway; plea, 
license from the County Court; plea held good. 

KING, THE. vs. McCLANAHAN B40 

Debt for refusing the office of Sheriff; plea that defendant "never 
was commissionated," the statute applying only to a "person 
hereafter commissionated" held good. 



TABLE OF CASES B389 

Page 

KING, THE. vs. MOORE B38 

Iiifomiatioii for not transmitting to collector of customs "list 
of the slaves by him sold imported in the ship A."; judgment 
for the defendant. 

KING, THE, vs. OLDNER& BRILEHAN B90 

Indictment for feloniouslv taking the goods of persons unknown ; 
taken from a stranded ship; d^ence — no jtinsdiction — wreck- 
ing no felony — no property in goods proved ; held no felony. 

KING, THE. vs. PRYOR B39 

Indictment for assault; defence, before indictment had given 
note in satisfaction of the assault; held no defence "because there 
is a fine to the King." 

KNIGHT vs. TRIPLETT B127 

Purchase of land with actual notice of an tmrecorded lease; 
brings ejectment and obtains judgment; bill in chancery for 
relief; demurrer sustained, the registry law avoiding an un- 
recorded lease as against a purchase. 

LIGHTPOOT vs. LIGHTPOOT B40 

Devise of remainder of estate to son "& the heirs male of his body, 
and if he dye without such issue or if there be any failure here- 
after in the male line Then I give the same to my brother P. 
Lightfoot & his heirs, He or they paving to my daughter 2500;^ 
in full compensation for the same ; son survived his father, 
but died without issue ; suit by daughter for residue of personal 
estate and profits of real estate from death of father to death 
of son; demurrer to the bill sustained. 

LUTWIDGE w. FRENCH B181 

Action on bond in a penalty of 12,000 lbs tobacco, conditioned 
for i>a3rment of 6.000 lbs; verdict and judgment; bill for relief 
offering ctirious eauities; demtirrer overruled by the County 
Court and appeal ; but it does not appear what was the judgment 
of the Genend Court. 

Mccarty vs. Mccarty's ex'ors B34 

Bill in chancery for the accounting of a trust estate ; defence that 
debt of the trustee was discharged by his being named as ex'or 
and certain equities set up in the answer; bifl dismissed. 

MAJOR vs. DUDLEY B66 

Bill for an account against defendant who had married the exec- 
utrix; but an account made some years before was sustained as 
a good defence. 

MASON'S CASE B51 

Act of limitations held to be against a bill of exchange. See Boys 
vs. Hoggatt, B80. 

MEGGS vs. BATES B39 

Action on promise to pay debt of another; defence nudum 
pactum; held a good promise tho' without consideration. 

MICON vs. CORBIN B37 

Action upon an account; referees appointed; this method 
objected to, but objection overruled. 

MORRIS vs. CHAMBERLAYNE B157 

A special verdict in an action of indebiUUus assumpsit, and the 
quesfion was one of liability of the under to the High Sheriff 
for quit rents, the ofiSce being farmed out to the under sheriff; 
the judgment was in favor of the High Sheriff. 

MORRIS vs. CHAMBERLAYNE B51 

As to the competency of an interested party to testify; ex- 
cluded unless interest released. 






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ytA, f*r>^^ h;i/i 'r>«ti 'ieLived by iiifaacy or some otiier disabiHty. 

Wt1t'tHy/(, %\% EI/WARD ..-•-•• 

A% V/ ^2 yfrffV/TA in Vir^^rAst, and the right of indnctiiig mmtstefs. 



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TABLE OF CASES B391 

Page 

Same B4 

Construing the will of Wm. Wilkinson and the kind of estate 
which passed thereby; the same will as to which Rev. Dr. Hinch- 
man (supra) gave an opinion. 

PAUL, J., LL.D B18 

One who "unadvisedly" married his late wife's sister and 
threatened with prosecution by the Eclesiastical Court is ad- 
vised that he ma^ be prosecuted, the marriage annulled and 
the children illegitimate, but as such marriages were merely 
voidable, if no one should prosecute, the children would inhent 
and the widow have dower. 

PIGOT, NATHANIEL B17 

Surrender of messuages and lands, and recovery suffered, 
whether after great leneth of time the first grantor could redeem 
on payment ot prindp^ and interest; that the statute of limita- 
tions did not apply to mortgages. 

POWYS, SIR THOMAS B7 

Mainly as to the right to interest upon balances in a complicated 
matter of account between a planter and his factor in London to 
whom he shipped tobacco and other commodities, and through 
whom he bought goods. 

RANDOLPH, SIR JOHN B29 

Payment of interest on purchase money considered excused by 
long delay and neglect in making title and giving possession 
of the property. 

RAYMOND, SIR ROBERT B9 

That in an action at law, if the principal sum had been paid there 
could be no recovery of the interest on an implied promise. 

Same B26 

As to the kind of estate, involved in an action of ejectment upon 
special verdict. 

Same B5 

As to an accotmt between a planter and his London factor upon 
the question of the safe delivery of goods in Virginia. 

REEVES, THOMAS BIO 

Thought no interest should be allowed on a running account, 
unless either there was an express promise or an account stated 
in writing and **the Party hath been long out of his money." 

Same B16 

Advised on same case as Joseph Chesshyre about matter of *' Wm. 
Green of Gloucester" tliat a deed by Ralph Green patented of 
King Charies II was sufficient. 

STRAHAN, WILLIAM, LL.D B20 

One who was inclined to propose marriage to the sister of his 
late wife, but finding that the laws oppose, wants to know "how 
far Disobedience to them can temporarily affect him"; he is 
advised of the many possible unpleasant consequences, and 
probably proposed to some other man's sister-in-law. 

STANYAN, TEMPLE B22 

This is simply an order from the Privy Council determining an 
appeal as to an account between the estate of Richard Perry 
and Col. William Randolph's executors. Mr. C. Waerg there- 
upon advises bringing a bill in chancery to require the estate 
of Col. Randolph to pay the debt which amotmted to "2460 lb" 
and the costs. 




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PAR =C?r5 7* LEE - . 

\Mrj\ i'x an efcii^: pisa N:. Dfecr:: beii that ibe retaking oc 
the ^svjjLZAft yr.3£i'jzjez ±,t zjtji riiuw^ the ^jnLI irjci Sabtlity. tor 

POITELL ft UX rf. THVRXAX 04 

At ^rjrjz. *-A enectrrjfrrt iz^T-iirtz^ tbc qu e &u oti of Tbedber a deed 
ir.^4e when tijc granvjc b^ so r: , trr e si ia ibe ^ up a iy. bat 
irhi^h was la^er acrpdrcd bj hrr; by desocsi, paswrd a gocxi diie 
v> *jrjt ;?rac^ee : held that it iii aot, apparemlj upon the groand 
that a i^ram otf a z:ere possibtlitj was 

REEVE5 «. WALLER 

Appeal from order of ooort staying a verdict on motion in arrest 
of rud^rrrjsr^l in an action for a betting debt : the qiKStion befofe 
the Ger^eral Coort was one of jttnsdiction for an appeal; held 
that the plaintiff could appeaL 

RICHARDSON vs, MOUXTJOY B207 

Actir/n of trespass; special verdict; title to the land involved, 
the county court holding that the defendant had no title, found 
for the plfi., the deed of a feme covert being invtdved; this jndg- 
ment seems to have been afi^rmed, and the cotmsel who lost said 
of his own argument "never was an argument so little iinder> 

ROBINSON vs, ARMINSTEAD et al B223 

A suit for partition of a joint estate which had become affected 
by claims to the right of survivorship and facts outside of the 
cr^nveyances; demurrer to the claim for equitable rdief, which 

was sustained. 

ROGERS' ADMX. vs, SPALDEN B81 

Affidavits taken before [suit brought not allowed to be read in 
evidence. 



TABLE OF CASES B393 

Page 

ROSE. EX'OR BAGG vs. COOKE & o/ B229 

Debt on bond against an heir and devisee; plea of infancy; held 
bad under the statute making the heir liable for the debt of the 
ancestor to the extent of assets received. No judgment here, 
but a reference to same case [213] B229, where it was held that 
the plea of infancy was bad. 

SCARBURY & UX vs. BARBER'S EX'OR B294 

Bill in equity after husband's death to enforce an ante-nuptial 
agreement to have the property of the wife held as her separate 
estate, and to compel payment of late husband's indebtedness 
to the widow. 

SENIOR vs. MORRIS B129 

Appeal from the county court; debt on arbitration bond in a 
penalty defence "no Award" claiming that the action of the 
arbitrators was "a Masterpiece of Nonsence." Judfi^ent of 
County Court was for damages instead of for the penalty of the 
bond. Reversed on this ground. 

SLAUGHTEE vs. WHITELOCK B251 

Devise of slaves to son and daughter "and the lawful issues of 
his body forever," with limitation over; question if the limita- 
tion over be good. 

SMITH vs. SMITH B320 

Deed of gift of land with reservation of right of free ingress and 
egress to and from the same dtiring the grantor's natural life, 
with reversion to another if the grantor should die without heirs, 
question if any estate, and if so, of what kind, passed by this deed. 

SMITHER vs. SMITHER B130 

Ejectment for moiety of land. Special verdict for moiety 
claimed to be defective, but judgment by the County Court, and 
on appeal affirmed. 

SPICER, ADMRX. OF STONE vs. POPE Seal B232 

Devise of plantation, slaves, etc., to wife for life, with certain 
legacies to his daughters under a certain condition of obedience 
"to their Parents.' A bill for discovery of the personal estate 
and an accounting. Questions of the staleness of the claim and 
the irregidarity of obtaining letter of administration. 

STITH vs. SOAN & al B37 

Information against the Justices of a county for not keeping a 
sufficient prison; proved by record in an action against the 
Sheriff for an escape. 

STRETTON vs. MARTIN B55 

Debt on bond with condition to pay a sum of money so soon as 
release should be secured from owner of a ship of all their rights 
and ship delivered as agreed; proof certificate or release; 
objected to as incompetent by itself; objection sustained and 
judgment for defendant. 

TAYLOR vs. GRAVES B56 

Detinue; case agreed; devise of slaves for life with remainder, 
and the increase of the slaves to his heirs; the will construed, 
the insistence of the plaintiff being that the slaves were to be 
treated as real estate; the judgment was for the defendant. 

TAZEWELL & UX vs. HARMANSON B147 

Ejectment; deed recorded but not delivered, but the case was 
compromised. 

TIMSON vs. ROBERTSON B85 

Whether upon the case stated there was an estate tail or a con- 
tingent fee, and whether Plaintiff was barred by the statute of 
limitations; ^uere whether the word issue was a word of pur- 
chase or of limitation. 



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