ARGUED AND DETERMINED IN THE COURT OF APPEALS OF VIRGINIA. BY BUSHROD WASHINGTON. VOL. I. DISTRICT OF VIRGINIA TO WIT. Be it remembered, that on the 15th day of February in the 22d year of the Independence of the United States of America, BUSHROD WASHINGTON, of the said district, hath deposited in this office the title of a book, the right whereof he claims as author, in the words following, to wit: "Reports of cases argued and determined in the Court of Appeals of Virginia," in conformity to the act of Congress of the United States entitled An act for the encouragement of learning, by securing the copies of maps, charts and books to the authors and proprietors of such copies, during the times therein mentioned." WILLIAM MARSHALL, Clk. of the District of Virginia. Reprinted by THE MICHIE COMPANY, by authority of Act of Legislature, On the 12th of November 1793, HENRY TAZEWELL, Esq., qualified as a Judge of this Court in the room of JAMES MERCER, Esq., who died during the term. On the 13th of April 1795, SPENCER ROANE, Esq., qualified as a Judge of this Court in the room of HENRY TAZEWELL, Esq., resigned. To EDMUND PENDLETON, ESQUIRE, TO THE READER. The notes of the following cases commencing in the year 1792, were taken for my own use, without any view to a publication of them. I generally extended them into something like their present form, during the term in which the decisions were given, and whilst the impression which they made, were fresh upon my mind. It was not until I despaired of some other gentleman of the bar undertaking a work of this kind, that I determined to revise the notes I had taken, and to publish them (with a few corrections) in the state in which I had originally written them, for I found that my professional engagements would deny me the opportunity of preparing them for public inspection in the manner I wished. The first volume has been printed during the spring term of the Superior Courts, which will account for many typographical errors. That there should be many inaccuracies in the following reports I can easily believe. Engaged through the whole year either in attending the courts, or in preparing my suits for trial, I have had very little time to devote to a work which required much labor and attention. My sole aim has been to give a correct statement of the cases, and to make a true report of the arguments and decisions upon them. If I have succeeded in this, I shall be abundantly gratified; farther, I have never extended my views; I have not had time to polish. The few cases which are reported prior to the year 1792, are taken from notes with which the President was so obliging as to furnish me. It is much to be wished that some gentleman who has taken notes of all the cases which have been decided since the present establishment of the Court of Appeals, may favor the public with reports of such of them as I have necessarily omitted. It is with pleasure that I acknowledge the assistance I have received from many of the Judges of the Court of Appeals (and particularly from the President) from whose notes I have been enabled to correct those cases in which I had misconceived the opinions which had been delivered. Brown's adm'r v. Garland and others.. 221 | Nelson v. Nelson... 173 M'Guire v. Warder ex. of Parker. 368 136 Hunters v. Haynes.. Jones & Temple v. Logwood.. ex. Buckner &c. v. Smith &c. Brown's ex. v. Putney. Barnett &c. v. Watson. Braxton v. Morris.. Coleman v. Dick &c. Carr v. Gooch... Cole v. Clayborn. Cooke v. Beale's ex.. Cosby ex. Loudon v. Hite.. Downman v. Downman's executors. Dade v. Alexander.. Daniel v. Robinson's ex... Doe lessee of Murra v. Northern. Evans v. Smith... Eustace v. Gaskins ex. Eustace.. Granberry's ex. v. Granberry, &c. Hooe & Harrison & others v. Oxley & Hubbard v. Blow and Barksdale. Hudson v. Morris... Hudson v. Ross & co.. Hill and Braxton v. Southerland's ex. Wm. Hunters ex. v. Spotswood.. Hawkin's ex. v. Berkeley. Hooe &c. v. Mason... Hooe &c. v. Pierce. Hubbard v. Taylor.. Hewlett v. Chamberlayne. Johnson v. Macon.. Jenkins v. Tom & others.. 30 Stevens v. Taliaferro.. 154 Sallee v. Yates and ux... 246 Thornton v. Smith. 10 Taylor v. Dundass... Thompson v. Davenport &c.. 273 Payne ex. Payne v. Dudley ex. Fleet... 196 Peter v. Cocke.. 257 155 226 1 Turpin v. Turpin.. 75 81 92 125 Irvine &c. v. Eldridge &c.. 161 Wilson & M'Rae v. Keeling. 194 Johnson v. Bourn... 187 Westfall v. Singleton.. 227 Keele and Roberts v. Herbert's ex'rs.... 138 Wroe v. Washington &c.. 357 CASES DETERMINED COURT IN THE OF APPEALS, IN THE FALL TERM OF THE YEAR, 1790. Groves v. Graves. October Term, 1790. con Contracts-Usury-Penalty*-Case at Bar.-A. tracts to pay to B, 2601., current money, in final settlements, at the rate of 20s. such settlements, for each 13d. current money, on the 1st of December next. B agreeing, that the same may be discharged by the payment of a like sum, in said settlements, at any time on or before the 1st of November preceding, at the rate of 20s. such set tlements. for each twenty-six pence, current money. The contract is not usurious, but the thirteen pence is to be considered as a penalty and the time of delivery is, the 1st of November. Damages-Rule for Estimatingt-Case at Bar.-The rule for estimating the damages in this case is. the value of the certificates at the time when they ought to have been delivered, and not that, when the cause was tried. On the 1st of October 1787, John Stockdell, and Francis Graves the appellee, made a writing to the appellant in the following words, viz, "for value received we promise to pay John Groves, or order, on the 1st day of December next, the sum of £260 current money, in Pierce's final settlements at the rate of twenty shillings, such settlements, for each thirteen pence current money, the said John Groves agrees that the same may be discharged by the payment of a like sum in the said final settlements, at any time on or before the 1st day of November next ensuing the date hereof, at the rate of twenty shillings, of such final settlements for each twenty six pence current money. On the 3d of October 1787, the appellant "Usury-Penalty.-Where the debtor, by a punctual payment of the debt, may thus relieve himself and avoid the payment of the illegal interest stipulated for, it is not usury. Ward v. Cornett, 91 Va. 681. 22 S. E. Rep. 494. Citing 2 Minor's Inst. (4th Ed.) 348; Pollard v. Baylors, 6 Munf. 433; Groves v. Graves, 1 Wash. 1. For the above proposition, the principal case is also cited in Winslow v. Dawson, 1 Wash. 119, 120; Bull v. Douglas, 4 Munf. 306. See also, Call v. Scott, 4 Call 402; Waller v. Long, 6 Munf. 71; Campbell v. Shields, 6 Leigh 517; monographic note on "Usury" appended to Coffman v. Miller, 26 Gratt. 698. +Contracts-Damages-Estimation of. The principal case is cited in Reynolds v. Waller, 1 Wash. 165; Alexander v. Morris, 3 Call 102. See also, Lawrason v. Davenport, 2 Call 95; Merryman v. Criddle, 4 Munf. 542; monographic note on "Contracts" appended to Enders v. Board of Public Works, 1 Gratt. 364. received from Stockdell real security for the above debt, and gave him the following receipt, viz. "I acknowledge to have received from Mr. John Stockdell an assignment of a tract of land containing 40,000 acres, Ballard Smith to said Stockdell. The condition of which assignment is, that if the said Stockdell shall pay unto me the sum of eight thousand dollars in Pierce's final settlements, on or before the first day of November next, then the said deed to be returned him, otherwise to be sold at public sale to the highest bidder, and the balance, if any, after purchasing the said settlements, to be returned to the said Stockdell." The Contract, of the 1st of October 1787, not being performed by Stockdell or Graves, the appellant instituted a suit at law 2 upon it against both of the contractors. *The breach assigned in the declaradeliver the final settlements equivalent to tion is, that the defendants did not the said sum of £260 at the rate of twenty shillings, such settlements, for each twenty six pence current money contained in the said £260 on or before the 1st day of November, said final settlements, at the rate of 20 shil1787, whereby a right accrued to demand the lings of such settlements, for each thirteen pence current money contained in the said sum of £260. and assessed his damages to £1200. The jury found a verdict for the plaintiff, The appellee filed his bill in the High Court of Chancery, praying an injunction to the judgment entered upon this verdict, that he might be relieved from so much of it as exceeded the sum of £260 with interest, and that the 40,000 acres of land might, in the first instance, be decreed to be sold to satisfy whatever sum the said Groves might be supposed entitled to. The equity stated in the bill is, that the plaintiff Graves was but a surety for Stockdell who was and is in needy circumstances, that the £260 was a mere loan to him from Groves, and that the payment of the final settlements, at thirteen pence in the pound, was intended either as a penalty, or for the purpose of procuring an usurious and unconscionable gain to the lender. An injunction 'till further order was granted. To this bill, the defendant John Groves filed his answer, denying that the £260 was loaned to the said Stockdell and stating that he agreed to purchase from the said Stockdell 8000 dollars in final settlement certificates, to be paid for immediately and to be delivered in future, and to guard |