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Parker v. Judges of the Circuit Court of Maryland. 12 W.

writ of error had been sued out to this judgment, which had been affirmed in this court, and the usual mandate had been awarded. On affidavit that the clerk of the circuit court had refused to issue an execution, and that the judges of that court had refused to direct one, this rule was made.

The cause shown is that, after suing forth the writ of error to the original judgment, Rigden had determined to abandon it. That the counsel who had obtained the judgment took the record from the clerk's office, filed it in this court, and obtained an affirmance of the judgment. Before this affirmance, John E. Rigden obtained an injunction to stay all proceedings at law on the said judgment, which the counsel for Parkin, Parker, and Clough have made two ineffectual attempts to dissolve; and that the said judges were and are of opinion that to issue execution during the continuance of the injunction, would be a violation thereof.

The record of the proceedings in chancery is annexed to this return, which shows that an injunction was awarded by Elias Glenn, the district judge, on the 19th of February, 1825, at which time the writ of error was depending in this court.

The subpæna was returnable to the May term of the circuit court, but the record does not state that any order was made in the cause at that term. In December, a rule was made on the defendants in equity to answer the bill. In * May, 1826, an answer [ * 563 was filed for Parkin, Parker, and Clough, by William Gwynn and Daniel Raymond, their agents and attorneys, who moved to dissolve the injunction, which motion was rejected. Afterwards, in December, 1826, on the suggestion that there is no bond for the performance of any decree which might be pronounced in the cause, it was ordered by the court that the injunction be dissolved, unless cause be shown to the contrary on or before the 23d day of December, instant. On the 22d, this rule was extended. The bond given on obtaining the injunction, which had been mislaid, was found, and on the 26th the court, on argument, again refused to dissolve the injunction.

The cause, shown on the return, consists of two parts. 1. The supposed incorrect conduct of the counsel for the plaintiff at law, in bringing up the record after the defendant had abandoned his intention to prosecute the writ of error. 2. The pendency of the injunction.

The first cause shown is entirely insufficient. The plaintiff in error having given bond to prosecute his writ, was at liberty at any time to bring up the record; and, although the writ constituted no supersedeas, yet the party who had obtained the judgment would

Parker v. Judges of the Circuit Court of Maryland. 12 W. remain exposed to the hazard of its being reversed at a distant day. To obviate such an inconvenience, one of the rules of this court authorizes the defendant in error, where the plaintiff has failed to file the record within the time prescribed, to docket the cause, and file a copy of the record with the clerk. The defendant in error has only conformed to this rule, and can be liable to no censure for doing so.

The second cause assigned for refusing to issue the execution, has been contested on two grounds :

1. It is contended that an injunction could not be awarded while the record was before this court on a writ of error.

We do not think this a valid objection. The suit in chancery does not draw into question the judgment and proceedings at law, or claim a right to revise them. It sets up an equity independent of

the judgment, which admits the validity of that judgment, [ * 564 ] but suggests reasons why the * party who has obtained it

ought not to avail himself of it. It proposes to try a question entirely new, which has not been and could not be litigated at law. It may be brought before the commencement of a suit at law, pending such suit, or after its decision by the highest law tribunal. The bill is an original bill, and may be filed, although an injunction should not be awarded. The injunction arrests proceedings at law, and may be dissolved or continued without making any final decree in the case. The condition of the suit at law may be a reason for imposing terms on the party who applies for an injunction, but can be no reason for refusing it. The subpæna and injunction act on the person to whom they are directed, not on the record, and it can be of no consequence where the record is.

2. The second objection to the pendency of the injunction has more weight. It was awarded in December, 1825, by the district judge, and no order appears to have been made for its continuance at the succeeding term. The act which authorizes the district judges to grant writs of injunction, provides “ that the same shall not, unless so ordered by the circuit court, continue longer than to the circuit court next ensuing." An order for its continuance, therefore, ought to have been made; and, after the close of the term without such order, an execution might have been sued on the judgment without any contempt of the court.

But if, in point of law, the injunction ceased to exist, the court could reinstate it at will. The judges acted obviously on the opinion that the injunction still continued and ought to continue. Two successive motions to dissolve it were overruled. The same view of the case, which induced the court thus to continue the injunction, must Thompson v. Peter. 12 W.

have induced a reinstatement of it, had it been supposed to be discontinued by the omission to make an order in it at the term to which the subpæna was returnable. If, upon the ground of this omission, the mandamus should be awarded, it might be rendered useless by granting a new injunction. It ought to be granted if the case, as it now appears, shows that the plaintiff in equity is entitled to relief. We must suppose that, in the opinion of the court, he is so entitled, * or the injunction would have been [ * 565 ) dissolved on motion. The continuance of the injunction is, in substance, equivalent to a renewal of it.

Under these circumstances, some difference of opinion exists on the motion for a mandamus. Some of the judges think that it ought to be awarded; others are of opinion that as the injunction is still continued by the court, and as the judges, who have a right to give it force, have returned that it is in force, it ought not to be awarded. The motion is overruled.

Rule discharged.

THOMPSON v. Peter and Johns, Administrators de bonis non of

Peter, deceased.

12 W. 565. A declaration by the personal representatives of the original debtor, deceased, that he had no funds to pay the debts of the testator, will not take the case out of the statute of limitations.

Error to the circuit court for the District of Columbia.
Jones, for the plaintiff.
Key, for the defendants.
MARSHALL, C. J., delivered the opinion of the court.

* This was a suit brought in September, 1822, on a prom- [ * 567 | ise alleged to have been made by the intestate of the defendant, who died in the year 1808. The defendant pleaded non assumpsit, and the statute of limitations, on which pleas issue was joined. By consent of parties a verdict was found for the plaintiff, subject to the opinion of the court, whether the evidence which is stated in a case • made by the parties, be sufficient to be left to the jury as evidence of a subsequent acknowledgment, competent to take the case out of the statute of limitations. The court gave judgment for the defendants, which judgment is now before this court on a writ of error.

The court is of opinion that the circuit court decided rightly. The original administrator, David Peter, did not acknowledge the debt, but said there were no funds in hand to pay the debts of the testator. VOL. VII.

31

Williamson v. Daniel. 12 W.

This language might be used by a person not intending to give any validity to the claim, and ignorant of its real merits. The conversation with one of the present defendants, George Peter, was still further from being an acknowledgment. Had this even been a suit against the original debtor, these declarations would not have been sufficient to take the cause out of the statute. The cases cited from 8 C. 72, and 11 W. 209, are expressly in point. But this is not a suit against the original debtor. It is brought against his representative, who may have no personal knowledge of the transaction. Declarations against him have never been held to take the promise of a testator or intestate out of the act. Indeed, the contrary has been held.

Judgment affirmed, with costs.

WILLIAMSON and others, Appellants, v. DANIEL and others,

Respondents.

12 W. 568. An absolute bequest of certain slaves to P. H. is qualified by a subsequent limitation over,

that if either of the testator's grandchildren, P. H. or J. D. A., should die without a law. ful heir of their bodies, that the other should heir its estate, which converted the previous estate into an estate tail; and there being no words in the will which restrained the dying without issue to the time of the death of the legatee, the limitation over was held to be

on a contingency too remote. The rule of partus sequitur ventrem is universally followed, unless there he something in the

terms of the instrument which disposes of the mother, separating the issue from her.

APPEAL from the circuit court of Georgia.

The controversy in this cause arose out of the following clauses in the will of James Daniel: “ I lend my wife twenty-one negroes," naming them, and also certain lands, “ during her natural life.” And subsequently: “I give and bequeathe unto my granddaughter, Patsy Hendrick, three negroes, namely: Joe, Parker, and Willis. I also give her one half of the negroes I have lent my wife, to her and her heirs forever. I give and bequeathe unto my grandson, Jesse Daniel Austin, son of Betty Austin, one half of the negroes I have lent my wife, after the death of my wife, Nancy Daniel. Now my will is, that if either of my grandchildren, Patsy Hendrick or Jesse Daniel Austin, should die without a lawful heir of their bodies, that the other should heir its estate. Jesse Daniel Austin, (now called by special act Jesse Austin Daniel,) survived Patsy Hendrick; and after the death of Nancy Daniel, the widow of the testator, took into possession all the negroes bequeathed to her during her life.' Patsy Hendrick died about the year 1805, intestate, and without heirs of her body, being at the time of her death an infant about nine years old, Newman v. Jackson. 12 W. leaving Robert Hendrick, her father, and Louisa Hendrick, her half-sister, by the father's * side, now Louisa Gibbes, ( * 569} one of the complainants, her next of kin. Robert Hendrick died in 1814, having first made his will, bequeathing his estate to the said Louisa, his daughter, and his wife Mary, now Mary Williamson, also a complainant. Some of the slaves, to wit, Sally and her children, were born in the lifetime of Nancy Daniel.

The court below determined that the limitation over was too remote, and decreed one half the slaves to the representatives of Patsy Hendrick, the complainants. It is also decreed that the slaves, Sally and her children, did not belong to the estate of the tenant for life. The defendants appealed to this court.

Berrien, for the appellants.

Wilde, for the respondents.

MARSHALL, C. J., delivered the opinion of the court.

The first bequest to Patsy Hendrick would pass the slaves therein mentioned to her absolutely, were not this absolute estate qualified by the subsequent limitation over, if either of the testator's grandchildren, Patsy Hendrick, or Jesse Daniel Austin, should die without a lawful heir of their bodies, that the other should heir its estate. We think these words convert the absolute estate previously given, into an estate tail; and, if so, since slaves are personal property, the limitation over is too remote.

There are no words in the will which restrain the dying without issue to the time of the death of the legatee. The remainder over is to take effect whenever either of the immediate legatees should die without a lawful heir of his or her body. The gift in remainder is a gift of the stock, and is limited over on a contingency too remote to be allowed by the policy of the law.

* The second point is, we believe, well settled. The issue is, [ *5701 we believe, universally considered as following the mother, unless they be separated from each other by the terms of the instrument which disposes of the mother. Decree affirmed, with costs.

Newman, Plaintiff in Error, v. Jackson, Defendant in Error.

12 W. 570. No particular form of notice of a sale under a deed of trust is prescribed by law; it is suffi.

cient if the description of the land is reasonably certain, so as to inform the public of ho property to be sold,

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