ARGUED AND DETERMINED IN THE COURT OF APPEALS OF VIRGINIA. BY BUSHROD WASHINGTON. VOL. II. TO THE PUBLIC. The case of Maze and Hamilton, with one other, I had intended to publish in an appendix to this volume. But the manuscript having been unfortunately deposited in a house which was lately consumed by fire. I have great reason to apprehend that it was either burnt, or by some other means destroyed. Reprinted by THE MICHIE COMPANY, by authority of Act of Legislature, TABLE OF CASES REPORTED. Ambler v. Wyld.... Bennnet v. The Commonwealth. Bogle & Scott v. Fitzhugh. Dalby v. Price.. Harvey & wife v. Borden.. CASES ARGUED AND DETERMINED IN THE COURT OF APPEALS, IN THE FALL TERM OF THE YEAR. OCTOBER TERM, 1794. Walden Executor of Walden v. Payne. October Term, 1794. Slaves--Nature of Property-Payment of Debt.*_ Slaves from their nature are chattels; and though in the hands of executors they are exempted from the payment of debts, where there is a sufficiency of other personal estate, they are nevertheless assets. They are real estate only in particular cases, such as descents, &c. Executor Distribution of Estate Refunding Bonds.t An executor is not bound by the order of a County Court, directing a division of the testator's estate amongst the distributees, to deliver up slaves, without reserving a sufficiency to pay the debts, Construction of Statute-Scale of Depreciation. The Act of November, 1781. c. 22, establishing a scale of depreciation, does not extend to contracts made antecedent to the 1st of January, 1777. Pleading and Practice Informal Joinder of Issue-Verdict. The pleas conclude with a verification, and the record states, "that to these several pleas the plaintiff replied generally, and issue was thereupon joined." This, though informal, is sufficient after verdict. or taking bonds to refund. This was an action of debt, brought by the appellee against the appellant, in the District Court of Fredericksburg, on bond dated in December 1776. The defendant put in the following pleas: 1st, Payment. principal case is cited on page 76 of Sale v. Roy. 2 Wash. 1." a *Slaves-Nature of Property-Payment of Debts. That slaves are assets in the hands of an executor, and liable to the payment of debts, see the principal case cited in Sale v. Roy, 2 Hen. & M. 77. The In Poindexter v. Davis, 6Gratt. 500, the court said: "By the act of 1727, 4 Hen. St. 222, important changes were made in slave property, by which it was made in most respects, and indeed in nearly all respects, except descents, personal estate. Lee. Ex or of Daniel v. Cooke, 1 Wash. 306; Walden's Ex'or v. Payne, +Executor-Distribution of Estate-Refunding Bonds. As to whether an executor can refuse to pay a legacy, or to make distribution of the residuum. unless the legatee or distributee will give him a refunding bond, see the principal case cited in Whitehorn v. Hines. 1 Munf. 585. See monographic note on "Executors and Administrators" appended to Rosser v. Depriest. 5 Gratt. 6. Pleading and Practice-Trial of Issues. It is well settled that, though the jury are sworn to try the issue, yet if several issues are joined and the verdict of the jury responds to them all, the appellate court will disregard such irregularity and consider that all the issues have been tried by the jury. The First Nat. Bank v. Kimberlands, 16 W. Va. 572, citing the principal case: White v. Clay, 7 Leigh 68: Baylor v. B. & O. R. R. Co., 9 W. Va. 270. To this point, the principal case is cited with approval in Baylor v. B. & O. R. R. Co., 9 W. Va. 282. Statute of Jeofails Joinder of Issue. The statute of jeofails cures misjoinder or informal joinder of issue, when it appears that the cause has been tried upon its merits, as though the issue had been formally joined. But it does not cure the nonjoinder or want of issue altogether. 4 Min. Insts. (4th Ed.) 942. citing Walden v. Payne, 2 Wash. 1: Moore v. Mauro, 4 Rand. 488: White v. Clay, 7 Leigh 68: Southside R. R. Co. v. Daniel, 20 Gratt. 361; Stevens v. Taliaferro, 1 Wash. 155: Totty v. Donald. 4 Munf. 430; Sydnor v. Burke, 4 Rand. 161; Lockridge v. Carlisle, 6 Rand. 21; McMillion v. Dobbins, 9 Leigh 422. See monographic note on "Amendments" appended to Snead v. Coleman, 7 Gratt. 300. 2dly, That at the time of issuing the original writ in this suit, he had fully administered all the goods and chattels of his testator, except £430, paper money of the value of specie and that he hath not nor at the time of suing out the original writ in this cause, nor at any time since, had any goods of his said testator in his hauds unadministered, except the sum aforesaid. 3dly, That the non-payment of the debt was owing to the plaintiff, wherefore and by virtue of the act entitled "an* act directing the mode of adjusting and settling the payment of certain debts and contracts, and for other purposes," he prays the court to award such judgment as to them shall appear just and equitable. The two first pleas conclude with a verification, and the record states that to these several pleas the plaintiff replied generally, and issue was thereupon joined. The jury found a special verdict as follows: that the defendant on the 27th of November 1778, had the estate of his testator duly appraised according to law, 2 and at the same time *proceeded to sell the whole of the personal estate except slaves, having by advertisement previously published in the gazette, given notice of the sale, and required all the creditors of the estate to make known their demands, and to receive payment. That the defendant on the first day of January, as well as in November 1778, offered to pay to the plaintiff the amount of his debt, including interest thereon, in the then circulating paper money, which the plaintiff at each time refused to receive. That the non-payment of the debt was owing to the creditor, the same having been offered and refused as aforesaid. That the defendant sold a sufficiency of the estate together with money in the house, and debts due to the testator, to pay all the debts owing by the estate. That on the motion of one of the legatees, an order was made by the County Court of Stafford in September 1778, appointing commissioners (of whom the plaintiff was one and acted as such) to divide the estate of the testator according to his will, in consequence of which, the estate remaining unsold and not disbursed in the payment of debts, or offered to the creditors, was on the 27th of November (more than a year after the testator's death) divided, and the share of each claimant delivered, no bond to refund being taken. That the estate so divided consisted entirely of slaves. That the money offered as afore *See this act recited in a note to the case of Watson and Hartshorn v. Alexander, ante, vol. 1, p. 341.-Note in Original Edition. assets. Now mark the difference between slaves and personal estate. The latter may be distributed at one time, the former shall be delivered at another; in the latter, security to refund may be required, but not in the former. Why? Because they are not assets, nor as such liable to pay the debts, unless the personal estate be deficient. The obvious conclusion is, that this sort of property is made an auxiliary fund for the payment of debts, where the assets are insufficient, and the executors are empowered by a special law, to sell them for that purpose only. The executor in this case had no power to retain possession of the slaves, there being a sufficiency of personal estate, 1st, because the law not only imposed it as a duty upon him to deliver them up, but the judgment of a court having *competent jurisdiction compelled him to do so, and this order, he was bound to obey, without a power given to him of protecting himself, by taking secu said, was of the paper money then in circulation, and was liable and subject to the law for calling in and redeeming the said paper money, at one for 1000, and that the defendant had received of the same sort of money, to a greater amount than the plaintiff's demand, for debts due to his testator, and contracted previous to the year 1776. That one of the legatees is insolvent, and two others have removed to parts of this state, very distant from the defendant. That the defendant divested himself of the whole estate of his testator before the institution of this suit, in paying the debts, and in obedience to the order and division aforesaid, except £427 paper money, so offered by him to creditors. That the defendant has not paid the debt in the declaration mentioned. If upon the whole, the law be for the plaintiff, then they find for 4 him, the debt in the declaration mentioned, to be discharged by the payment of the principal and interest, or so much thereof as to the court might appear just and equi-rity to refund. Let it also be remarked, table; otherwise for the defendant. Upon this verdict, the court gave judgment for the plaintiff for the full amount of principle and interest, from which the defendant appealed. 3 447. case that it would be exercising an unnecessary, as well as an unjust rigor against the executor, to charge him with a devastavit, when the legatees may in a court of equity be resorted to. 2 Vern. 75, 205-1 Vern. 94, Marshall for the appellant. I shall insist 162-2 Ventr. 360, 358-2 P. Will. first, that slaves are not assets in the hands Should it be contended, that an executor beof executors, if the personal estate before he delivers or pays a legacy, may de*sufficient to pay the debts. If so, mand security to refund, and that if he then secondly, that the defendant has neglect to require such a security, he canfully administered the assets. Thirdly, if not compel the legatee to refund, I answer: these points be against the appellant, still 1st, that the cases on this head relate to the court may give an equitable judgment. personal estate only, which are always as1st, Slaves by the act of Assembly passed sets, and liable to pay debts; whereas, in 1705, C. 3, are declared to be real estate slaves are real estate, and are liable to with certain exceptions; and tho' some of pay debts, only as an auxiliary fund; that the exceptions render them like to chattels, the executor is obliged to deliver them up yet, there is no law which declares them to within a limited time, without security, be assets, nor can the executor dispose of unless there be a deficiency of the personal them as he may of the personal estate, for estate. 2dly, The delivery in this the payment of debts, unless there be a de- was not voluntary. ficiency of the latter; in that case only can he sell slaves. The laws passed in 1727,* and in 1748† were made, because slaves having been declared to be real estate, could not, as such, have been applied by the executor to the payment of debts, and the legislature, in these laws, have been carefull to distinguish this species of property from chattels. If we refer to other laws, we shall find, that slaves are always contemplated as a species of property totally unlike to personal estate. Thus, in the law respecting distributions, slaves are not comprehended under the words goods, chattels and personal estate. Again, by the same law, the executors or administrators may distribute the personal estate after nine To charge the executor with a devastavit, months from the death of the testator, he should be guilty of mismanagement, taking bond and security to refund. But misapplication, fraud, or of paying lega by the act of 1748, C. 3, 30, the slaves cies when the assets are insufficient to pay of a decedent are to continue on the the debts. 2 Bac. ab. 435. The executor land to finish the crop (where the testator in this case did not mismanage, nor misor intestate dies between the 1st of apply the assets, by selling the personal esMarch, and the 25th of December,) until tate and offering the money in discharge the latter period, when they are to be of the debts, because this was a part of his delivered to those having a right to duty. Neither has he left debts unpaid, them, well cloathed at the expence of the by disposing of the assets to legatees, if estate, and their crops are declared to be I am right upon the first point. If then, the executor is subject to no blame for delivering up the slaves under all the circumstances of the case, there is no possible *Act of 1727, C. 4, § 7. +Act of 1748, C. 3, § 29. 2d point. The verdict finds, that all the estate hath been administered except the slaves which were delivered to the commissioners, to be divided under the order of court, and £427 paper money. Now this money was either funded, or it was not. If the former, it remains a debt due from the public (worth according to the scale 8s. 6 specie) payable at a future day, as the public acts of the legislature prove. If the latter, it is taken out of circulation by an act of the government, and thereby deprived of all its value. In either point of view, it forms no part of the assets in the hands of the executor, being a debt due and uncollected. 2 Bac. ab. 417. 5 of a legislative act which destroyed in his hands the funds *reserved for paying the debt; an idea too monstrous to be contended for. ground left to charge him, unless indeed was contended, that they are not assets. he can be chargeable with the consequences Another circumstance is, that the penalty of an executor's hond, is always so fixed, as to cover the supposed value of the slaves, as well as of the personal estate. Were it otherwise, an executor might waste that part of the estate, so as to defeat the rights, not only of creditors, but of others. The truth is, that slaves, though real property in a course of descents, are considered like other chattels in cases where the executor has a power over them for payment of debts. They cannot be sold any more than specific legacies can, for the purpose of paying pecuniary legacies, nor even debts, unless there be a deficiency of the personal assets. 3d point. The issue upon the third plea is with the defendant, the jury having found, that the non-payment was owing to the creditor; and therefore, the court may give an equitable judgment on the case. I will not repeat all the equitable circumstances which appear to favor the executor, believing that no case ever exhibited more than the present. The case of Kenner and Turner in the old General Court, was not so strong in favor of the defendant as the As to the order of the County Court, I do present, for in that, the court interfered, not conceive that it was obligatory upon even after a verdict rendered upon the plea the executor, as it was made upon an ex of payment. The case was, that Turner, parte motion, and without a regular suit. who was indebted to Kenner, offered to pay There is no law which authorises this mode the debt, (without making a legal tender) of proceeding, and consequently the order which was refused. The court scaled the was entirely extrajudicial. Besides, the exdebt as of the day when the offer was made, ecutor was bound to oppose it, and to state because Turner, holding the money in his the necessity of his retaining the possession own right, was presumed to have afterwards until all the debts were paid; this at least made use of it, it not being improper in he ought to have done, before he could athim to do so; it was therefore thought just, tempt to excuse himself against the consethat he should sustain the loss by subsequences of his having obeyed it to the quent depreciation. But in this case, the prejudice of others. executor, acting as a trustee, ought not to be presumed to have used the money, because it was improper that he should have done it, and therefore, it would be unjust to make him bear any part of the loss by depreciation, but it should be borne by the creditor, for whose use the trustee held it. Ronold for the appellee. There might be some weight in the arguments drawn from the hardship of this case, if the jury had not expressly found, that the executor had notice of the debt in question before the division took place. But the arguments chiefly relied upon are 1st, that slaves are assets only sub modo. 2dly, That they were delivered to the legatees under the judgment of a court. In answer to the first, I would observe, that slaves in the hands of an executor, resemble personal chattels in almost every respect; for 1st, the possession of them belong to the executor. 2dly, They cannot be taken by a legatee without his assent. and 3dly, They are subject to the payment of the testator's debts. estate. 6 That the possession of them belongs to the executor is evident, because he is to deliver them to the legatee, which he could not do, if he had no right to possess them, and they, like the personal estate, are to be inventoried and appraised, which would be absurd, if they were considered as real That the executors assent to vest the possession in the legatee is necessary, is not only proved by the law just alluded to, but is necessarily implied from the power given him to sell them for payment of debts. These circumstances form the strong line of distinction between real and personal property. But it is contended, that they cannot be sold but as an auxiliary fund to the personal estate. This is equally the case with specific legacies, which cannot be sold, unless there be a deficiency of other property, and yet it never *Act of 1748. C. 3. § 22. As to the finding upon the third plea, it surely cannot avail the appellant, because the act pleaded and relied upon, relates by express words to contracts made after the 1st day of January 1777, and this was entered into prior to that date. The preamble of the law states the inconveniences resulting from the depreciation of the money, in respect of contracts entered into between the 1st day of January 1777, and the first day of January 1782, and is therefore inapplicable to all other cases. Besides, if a legal tender had been made, yet the jury should have found, that the money was such, as might be lawfully tendered, which they have not done. Marshall in reply. It must be admitted, that the decision of the County Court was not made upon proceedings regularly conducted; yet as that court had jurisdiction over the subject, the judgment standing in force and unreversed, was obligatory upon the executor. 7 *It is true, that the 2d section of the act of 1781, is confined to contracts made after the 1st day of January 1777, but it does not follow that the law is confined entirely to contracts entered into between the periods mentioned in that section. The third section (since it declares, that execution shall not issue upon any judgment theretofore obtained, before December 1783;) obviously is not, and why should the 5th section, which is as general as language could make it, be restrained in its operation, when the mischief intended to be remedied, is the same? If it were just, that an equitable judgment should be given upon a contract made on the 1st of January 1777, where the non-payment was owing to the creditor, is it not as much so, if it had been made on the last day of December 1776? And since the words of the 5th clause of the law, do not expressly confine the cases to particular contracts, the court will so construe the act. |