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. Bernard v. Brewer 36 Mackie's Ex. v. Davis. 154 M'Rae v. Woods........ 76 Newell v. The Commonwealth.. 213 Norton v. Rose.... 219 80 88 233 Bogle & Scott v. Fitzhugh. Burk's Ex. v. Tregg's Ex.. Ferguson v. Moore.. 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, or taking bonds to refund. 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. 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 testa 2 tor duly appraised according to law, 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 de mands, 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. |