DECISIONS OF CASES IN VIRGINIA BY THE HIGH COURT OF CHANCERY, WITH REMARKS UPON DECREES BY THE COURT OF APPEALS REVERSING SOME OF THOSE DECISIONS. BY GEORGE WYTHE. DISTRICT OF VIRGINIA TO WIT. BE IT REMEMBERED THAT, on the sixth day of january, in the year of our lord one thousand seven hundred and ninety-five, and of the independence of the united states of America the nineteenth, GEORGE WYTHE, of the said district, has deposited in this office the title of a book, the right whereof he claims as author, in the words following: "Decisions of cases in Virginia, by the high court of chancery, with remarks upon decrees by the court of appeals, reversing some of those decisions," in conformity to the act of the congress of the united states, intituled "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, cl. D. c. v. Reprinted by THE MICHIE COMPANY, by authority of Act of Legislature, TO THE HONORABLE JOHN ROBERTSON, JUDGE OF THE CIRCUIT COURT OF CHANCERY, FOR THE RICHMOND CIRCUIT, THE PRESENT EDITION OF THESE REPORTS, A FAVORED CHILD ESTEEM AND REGARD, BUT AS AN HUMBle tribute JUSTLY DUE TO THE LAST CHANCELLOR, IN VIR GINIA, HER LAST JUDGE WITH EXCLUSIVE CHANCERY JURISDICTION, WHO, Occu PYING WORTHILY FILLS THE SEAT OF THE ILLUSTRIOUS WYTHE, AND UPON WHOM, WHETHER IN PUBLIC OR PRIVATE, HAS -Edition 1852. ADVERTISEMENT. WYTHE'S REPORTS favor of the legal profession, for whose benefit it has been made. He is able to furnish also Of decisions made by him in the High Court of Chancery, having been long out of print, and commanding, whenever a copy has been exposed to sale, quite a high price, the publisher has undertaken to present to the legal profession and the public this new and only complete edition. He was encouraged to engage in such an enterprise also by the great eminence of the author as a scholar and a jurist, and by his exalted reputation as a citizen and a paBARRADALL'S REPORTS, triot. At first it was his intention simply to reprint the work, in octavo form, with now in MS., but which the publisher an index and abstracts of the cases. But hopes ere long to lay in type before the during the publication his plan became en- public, will enable any one to complete larged, as stated in the preface. This en- the list of Virginia Reporters. largement will, he trusts, render the edition more valuable, and recommend it to the JEFFERSON'S REPORTS, uniform with those of his illustrious preceptor; the two bound up together, or in separate volumes. The possession of these works has long been the desideratum with lawyers and other collectors of books; and together with that of 83 Richmond, January, 1852. PREFACE. [Edition of 1852.] In 1795, Chancellor Wythe published a folio volume entitled, "Decisions of Cases in Virginia, by the High Court of Chancery, with remarks upon decrees by the Court of Appeals, reversing some of those decisions. Richmond: Printed by Thomas Nicolson," pp. 167. In 1796-9 he published seven additional cases, in several octavo pamphlets, by the same printer. keeping of posterity with a confident feeling of its being appreciated, who may do so? Few members of the bench or bar can hope to occupy such positions, so that their opinions will be of sufficient practical utility to commend them to their professional brethren, after they shall have gone from among us. None, indeed, but those The Editor will not seek to recommend of the Judges of the Appellate Courts of this edition of those Reports to the favor last resort, can rest securely upon such a of the public, by an exaggeration of its foundation. And yet, shall the stores of practical utility to the practising lawyer. wisdom and experience treasured up by the At the same time, he does not see how any luminaries of the bench, in courts not sumember of the legal profession, imbued premely appellate, be forever lost; and all with a proper spirit towards that profession, that shall remain of them, their genius, or towards those who have been exemplars their labors and their learning, be but that and ornaments in it, can feel indifferent brief traditionary apotheosis which their to such a work, or to the reward of that contemporaries, or their successors, hand enterprise which has ventured to bring it once more within the reach of every one. When the present edition was first contemplated, the publisher's plan extended only to a reprint, with an index and analyses of the cases, of the folio work published in 1795; to which, of course, he added as soon as he discovered them, the reports of cases subsequently published in pamphlet form. The idea of a more enlarged plan, embracing copious annotations and references to cases in pari materia, was suggested to him; and the Editor was willing to undertake the task; but the delay in getting out such a work, the increased expense, and the fact that such new modern matter would be mostly sought in works written for the purpose of embodying it, deterred him from adopting the suggestion. The undertaking of the Editor was, therefore, circumscribed by the wishes of the publisher. down, at fartherest for a generation or two? This consideration alone should secure from the legal profession a high degree of favor to the work here tendered them. So far as the weight of names can go, few are so fortunate as to have had a Wythe for their author, with a Clay for his amanuensis. The extent of the original plan of the publisher has already been stated. The editor felt constrained, however, to introduce references to the decisions of the Court of Appeals in the cases reported by the venerable Chancellor, and to volunteer a few notes. He congratulates the public that ix so a more valuable and important enlargement has been produced by *the liberality of Wm. Green, Esq., of Culpepper, whose legal learning is well known. The editor, conferring with him in reference to this edition, just after it was commenced, discovered that he But the work before us has its utilities, had meditated editing the work himself, that are by no means inferior. It is no and had collected materials for the purpose; unimportant link in the history but other engagements had prevented him viii *of the Jurisprudence of our State; from executing it. He at once evinced a showing how the mind of an upright, deep interest in the enterprise, and to make acute and fearless Judge worked under a it the more successful, freely tendered the severance from foreign authority, and use of his notes and references. It was sought right and justice amidst the con- deemed best to insert the most material of flicts of interest, prejudice and popular ex- them as an appendix. But before Mr. citement. These reports and comments Green could find leisure to reduce them to exhibit throughout a manly and vigorous the order he desired, the printing of the independence of thought; the most sterling text had proceeded so far that references integrity; the most transparent sincerity of conviction; the most unwavering steadiness of moral principle; and a highly enlightened sense of equity, untrammelled by dicta and unswerved by prejudice or partiality. From their perusal no one can arise without feeling the corresponding principles within himself encouraged and strengthened, and their opposites, if any, rebuked and cowered. If their author could not commit such a memorial to the to the appendix could not be inserted in the proper places. This omission, however, is supplied by references made in the list of cases, and in the appendix. We have no doubt the public will feel indebted, as we do, to Mr. Green, for his valuable additions. In this edition, the cases reported have been arranged, with a few exceptions, chronologically, according to the date of the decision of them by the High Court of Chancery. |