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EASTERN DISTRICT OF VIRGINIA to wit:

~«—r- ) BE It Remembered, that on the seventh day of March, in the fifty-third L. S. j- year of the Independence of the United States of America, THOMAS ) JEFFERSON RANDOLPH, of the said District, hath deposited in this office the title of a book, the right whereof he claims as proprietor, in the words following, to wit:

"Reports of Cases determined in the General Court of Virginia. From 1730 to 1740; and from 1768 to 1772. By Thomas Jefferson."

In conformity to the act of the Congress of the United States, entitled "An act for the encouragement of learning, by securing the copies of map's, charts, and books, to the authors and proprietors of such copies, during the times therein mentioned."

RD. JEFFRIES, Clerk of the Eastern District of Virginia.

Reprinted by The Michie Company, by authority of Act of Legislature,
approved February 24, 1900.

PREFACE.

When I was at the bar of the General Court, there were in the possession of John Randolph, Attorney General, three volumes of MS. Reports of cases determined in that court; the one taken by his father, Sir John Randolph, a second by Mr. Barradall, and a third by Hopkins. These were the most eminent of the counsel at that bar, and give us the measure of its talent at that day. All, I believe, had studied law at the Temple in England, and had taken the degree of Barrister there. The volumes comprehended decisions of the General Court, from 1730 to 1740, as well on cases of English law, as on those peculiar to our own country. The former were of little value, because the Judges of that court, consisting of the King's Privy Counsellors only, chosen from among the gentlemen of the country, for their wealth and standing, without any regard to legal knowledge, their decisions could never be quoted, either as adding to, or detracting from, the weight of those of the English courts, on the same points. Whereas, on our peculiar laws, their judgments, whether formed on correct principles of law, or not, were of conclusive authority. As precedents, they established authoritatively the construction of our own enactments, and gave them the shape and meaning, under which our property has been ever since transmitted, and is regulated and held to this day. These decisions, therefore, were worthy of preservation. With this impression, I undertook to extract from those volumes every case of domestic character. They constitute the earlier part of this volume.

During the subsequent period, which may be called that of Wythe, Pendleton, the Randolphs, Peyton and John, sons of Sir

John, Mason, &c. until 1768, an interval of twenty-eight years, no Reports, I think, were ever taken. At the latter date, I began to commit to writing some leading cases of the day, confining myself still to those arising under our peculiar laws, and I continued to do so until the year 1772, when the Revolution dissolved our courts of justice, and called those attached to them to far other occupations. These cases I have added to the former series.

I have added, also, a Disquisition of my own on the most remarkable instance of Judicial legislation, that has ever occurred in English jurisprudence, or perhaps in any other. It is that of the adoption in mass of the whole code of another nation, and its incorporation into the legitimate system, by usurpation of the Judges alone, without a particle of legislative will having ever been called on, or exercised towards its introduction or confirmation.

TH: JEFFERSON.

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TABLE OF CASES REPORTED.

Allen v. Allen 86

Anderson v. Winston 24

Blackwell v. Wilkinson 73

Bradford v. Bradford 86

Brent v. Porter 72

Bugg and Gwinn 87

Butler and Isbell 10

Carr and Herndon 132

Carter v. Cocke's ex'r 123

Chamberlayne and Waddill 10

Chamberlayne and Morris 14

Chisman and Haywood 52

Cocke's ex'r awrfCarter 123

Coleman v. Dickinson 67

Custis v. Fitzhugh 72

Darby v. Stringer 10

Dickinson and Coleman 67

Dudley and Major 51

Dudley and Goodloe 59

Edmonds v. Hughes 2

Elligood and Webb 59

Fitzhugh and Custis 72

Freeman awrfTutt 24

Giles v. Mallecote 52

Godwin v. Lunan 96

Goodloe v. Dudley 59

Graves and Tayloe 40

Griffin and Smith 132

Gwinn v. Bugg 87

Halley and Harrison 58

Hardaway and Robin 109

Harrison v. Halley 58

Harrison and the King 50

Haywood v. Chisman 52

Herndon v. Carr 132

Howell v. Netherland 90

Hughes and Edmonds 2

Isbell v. Butler 10

Jones ^..Langdon 37

Jones v. Porter 62

King (the) v. Moore 8

King (the) v. McClanahan 9

King (the) v. Harrison 50

Knight v. Triplet 71

Langdon and Jones 37

Lee and Parsons 49

Legan (lessee of Chew) v. Stevens 30

Legaw v. Newton 18

Lunan an^Godwin 96

Major v. Dudley 51

Mallecote and Giles 52

Marston v. Parish 1

McClanahan v. the King 9

Moore and the King 8

Morris v. Chamberlayne 14

Netherland and Howell 90

Newton and Legaw 18

Parish and Marston 1

Parsons v. Lee 49

Pope and Spicer • ■ • 43

Porter and Brent 72

Porter and Jones 62

Reeves v. Waller 8

Robin v. Hardaway 109

Rogers v. Spalden 58

Smith v. Griffin 132

Spalden and Rogers 58

Spicer v. Pope 43

Stevens and Legan (lessee of Chew) 30

Stringer and Darby 10

Sturman and Waddy 5

Sweny and Tucker 5

Tayloe v. Graves 40

Triplet and Knight 71

Tucker v. Sweny 5

Tutt v. Freeman 24

Waddill v. Chamberlayne 10

Waddy v. Sturman 5

Waller and Reeves 8

Webb v. Elligood 59

Wilkinson and Blackwell 73

Winston and Anderson 24

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CASES

DETERMINED IN THE

General Court of Virginia.

Marston v. Parish.

April, 1730.

Detinue—When It Lies.*—To support an action of detinue the things demanded must be certain, as in debt.

WIUs-Devlae to a Child In Ventre Sa Here-Effect Where No Child Is Born.—Where a testator makes a devise to a child of which he believes his wife is enceinte, and no child is born, such devise is void, and the property vests in the wife to whom the residue of the estate is given.

Same—Same.—A devise to a child in ventre sa mere is a contingent devise.

John Williams was possessed of two negro boys, Arthur and Billy, and two negro women, Dinah and Nanny, and made his last will the 22nd of April, 1713. He willed his negroes, and all other goods and chattels, to be valued and appraised, and equally divided between his wife and three children, and that his wife should keep his children's estates till they came of age; and died soon after making his will. After his death, the negro woman Nanny, had two children, Obey and James, and the negro woman Dinah, had a child named Essex. Anthany, the widow, married John Marston, who, supposing his wife to be with child, by his will dated the first day of December, 1719, devised these negroes, viz. Arthur, Will, Nancy, Essex, Obey, and James, to the child his wife was ensient of, and gave all the residue of his estate, real and personal, to his wife and her heirs for ever, she paying his debts, and the orphans' estates in his hands; and died soon afterwards. But his wife did not prove with child, and the widow is married to her third husband. Parish, the defendant, and none of Williams's children are of age, and the plaintiff as heir at law to Marston, the second husband, hath brought an action of detinue, for Arthur, Will, Essex, Obey and James, which are properly Williams's estate, and for Nancy, which was Marston's proper estate.

The plaintiff, as to the negroes that were Williams's, cannot maintain an action of detinue, for by the will of Williams, they were to be equally divided between his wife and children, and until her part is ascertained by a partition, it is uncertain which of them is hers. Therefore, supposing her part vested in Marston, her second husband, and that it descended to the plaintiff as his

'see monographic note on "Detinue and Replevin" appended to Hunt v. Martin. 8 Gralt. 578.

heir at law, the plaintiff must know 2 which of the negroes are his, to 'sup- port this action; for in detinue, the things demanded, must be certain, as in debt. But there is a stronger objection, and that is, to the plaintiff's right to the thing demanded upon the will of his brother. The devise to the child in ventre sa mere never vested, because no child was born, but was for that reason void, and whatever was intended to have been given to this child if it had been born, by law vested in the wife, to whom the residue of the estate was given. A residuary legatee, is in loco heredis and universal successor to the testator, and must have eveo- thing that is not given away by the will. Here was only an intention to give, but no gift for want of a person to take. Though in the case of Sprigg and Sprigg, 2 Vern. 394, it was admitted, that in the devise of the residue of a personal estate, if the legatee was dead at the time of making the will, the residuary legatee shall not have the benefit of that legacy, and that it should not fall into the residue, because nothing was intended to pass by that devise but the residue, after that and other legacies paid. Yet the principal case there, was for a legacy to Thomas Sprigg, if he came from beyond sea, and the Lord Keeper was of opinion, that the devise being contingent, and on a condition precedent, which never happened, was as if never given, and the residuary legatees should have the benefit of that legacy. So here the case of a devise in ventre sa mere is a contingent devise, for in reality the woman was not with child, and the intent of the testator appears plainly to be, that his wife should have all his estate if there was no child, taking notice of nobody but his wife, and the child he supposed she went with. And there is a great deal of reason and justice she should have it. For all the negroes except one, came by her, and she is chargeable with all his debts and the estates of the orphans, out of the residuary estate.

The court were of opinion that the plaintiff had no right to recover the five negroes that were Williams's, and that the plaintiff should recover the negro that was Marston's, as his heir at law.

Reported by Sir John Randolph.

Edmonds v. Hughes.

April, 1730.

Slaves In Remainder—Validity.- Richard Alderson being possessed of several slaves, made his last will and testament in these words: "My will is, that Margaret my wife, shall be sole possessor, and disposer of what estate it hath pleased Almighty God to endue me withal, during her life,"etc. And by a subsequent clause he gave to his son Richard his whole estate, chattel and chattels. Held, that the remainder of the slaves (which were chattels at the time of the testator's death) is a good remainder to the son.

The special verdict in this case is very imperfect and uncertain, so that no title in the plaintiff can be collected from it.

But the case is thus. 3 *Richard Alderson was possessed of

several negroes in the declaration mentioned, and made his last will and testament (dated the 15th of September, 1695) in these words, 'My will is, that Margaret my wife, shall be sole possessor, and disposer of what estate it hath pleased Almighty God to endue me withal, during her life, providing she keep herself unmarried, or in case she do marry again, that she, nor her husband, or any person or persons in their behalf, by any means or instruments to embezzle or make waste of the said estate, to any indemnity to my children.' Then by another clause, he gives his whole estate, chattel and chattels, to his son Richard, please God he lives, &c. Margaret, after her husband's death, married the plaintiff who carried off several of the slaves, and as it is said, married one of them, and had several children by her. Margaret died, and Richard Alderson the son, took the negroes in the declaration mentioned, and sold them to the defendant. And the question will be whether the remainder of the negroes (which were chattels at the time of the testator's death) first given to Margaret for life, be a good remainder to Richard; and I think clearly that it is. The devise that his wife should be sole possessor of his estate during her life, if it had gone no further, would have been construed as to chattels, no more than the devise of the use, and in that case, without doubt, a remainder might, by the rules of law, be limited over. But where he goes on and says, she shall be sole possessor and disposer of every part of his estate during her life, it may be a question whether it be not the same as if he had given his estate to his wife for life, remainder over. And admit it to be so, yet the remainder will be good, and Richard had a good right to the negroes after his mother's death. There is a difference taken in the old books: where the thing itself is devised, a devise over is void, but where only the use is devised to one for a certain time, is it otherwise; and the principal case to this purpose is 37 H. 6; 36 Bro. Abr. title devise pi. 13, upon which several other resolutions have been built, viz. Plowd. 521; C. Owen 33; Marsh. Rep. 106. But these authorities are certainly too rigid in the case of a will, where a construction ought to be made as far as the law will admit, that the intention of the testator

may take place; for a man upon his death bed being supposed to be inops consilii, the Judges will so expound his words, that the whole will may stand and take effect. And as to the case here, of later times, it has often been resolved upon a great debate contrary to the old books, and at this day the law is not so strict as it was formerly taken to be in the disposition of personal chattels. For instance, in the case of

Catchmay and Nicholas, anno 1673, 4 where one devised all his 'estate to

his sister during her life, and after her decease he gave four hundred pounds a piece to his four nieces, which estate consisted of personal things, there it was insisted that the legacy to the nieces was void, it being the devise of the remainder of a personal thing after the death of another, to whom it had been already given. The Master of the Rolls referred this point to Justice Ellis for his opinion, which was, that the remainder was good, and it was so decreed at the Rolls, and upon an appeal to the Lord Keeper, the decree was affirmed. See Lord Nottingham's reports, 1, 16, for the first devise being construed a trust. Sir Thomas Charges' case, anno 1691. Nelson, the old Duke of Albemarle, devised his jewels and plate to his wife for life, and afterwards to his son Christopher, which was a plain devise of a chattel personal with a remainder, and the Master of the Rolls held, this should be construed a devise of the use of the jewels, in order to support the will and intention of the testator. S. C. is reported, 2 Vern. 245, and the Lord Chancellor decreed accordingly, and the remainder to the young Duke was held good. In the case of Hide and Perret, 2 Vern. 331, the plaintiff's father devised to his wife all his household goods in his dwelling house at Hoddesden, during her natural life, and after her decease, to his son Joseph, and the question was, whether the devise over of these chattels, was good or not. The Lord Keeper held, that the devise over was good, for as to the personal chattels, the civil and common law is considered, and there the rule is, where personal chattels are devised for a limited time, it shall be intended the use of them only, and not the devise of the thing itself, and therefore allowed the remainder over to be good. These cases were determined upon solemn arguments, and are conformable to the resolutions in several other cases cited in the reports. They come up expressly to the case at bar, and there can be no question, but according to them, Richard had a good right to the negroes now in question.

And it was adjudged for the defendant.

Reported by Sir John Randolph.

5 *Tucker v. Sweny.

April. 1731.

Debts of Decedent* -Liability of Increase of Slaves.—

Notwithstanding the act making slaves real estate.

*See monographic note on "Debts of Decedent" appended to Shores v. Wares, 1 Rob. 1.

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