300 1759, shall not pass in payment of any debt or demand, except for taxes &c." but not a word is said respecting continental bills, yet it was contended at the bar, that the words, all bills, operates a repeal of the act of January. The rule is, that where there are two affirmative statutes, if they do not conflict with each other, the latter does not repeal the former. Repeals by implication are never favored by courts. Whatever apparent inconsistencies may appear in the declarations of the legislative will, yet it is not decent to presume that they would change their mind upon the subject, without saying so in express terms. But if the two laws are absolutely in opposition to each other, *then since the latter will prevail, the former must of necessity be considered as being altered. If however there be different subjects for the two laws to operate upon, there is no inconsistency, and consequently no necessity for presuming a repeal. Now apply these principles to the present case. Continental and state bills, were the subject of the first law; that law may still subsist in all its force as to the former, without in the least conflicting with the act of March 1777, which is confined to states bills. The same observations apply to the act of March 1778; it applies to state bills altogether, and intended to destroy the preference, which the regal money had obtained over that emitted by the state. In the same manner is the act of May 1778 to be interpreted, which speaks expressly of continental bills. There were emissions prior, and others subsequent to January 1777. The former were provided for by that act; the latter were nct. was This law then may with propriety, and with great reason be applied to the subsequent emissions, by which the necessity of an implied repeal of the first law is avoided. But it is contended, that if the act of January 1777, was in force in March 1780, the tender was not made conformably with the requisites of that law: that it ought to have been made to all the obligees. As a payment to one is a payment to all, it as certainly follows, that a tender to one is a tender to all. So a release by one, binds the whole. There were four days of grace allowed, in which time the obligee, to whom the tender was made, might have consulted with the others. Upon the whole, I concur with the rest of the court, that the debt in question was discharged by the tender and refusal, and therefore, The judgment must be affirmed. Young v. Skipwith. October Term, 1796. Decree-Final*-Case at Bar.-A decree,directing the surveyor to make partition of a tract of land, and to make report, is not final, and cannot be appealed from. *Decree-Final.-A decree is not final. unless the cause itself has been thereby terminated in the court below. The principal case is cited, in support of this rule. in Cocke v. Gilpin. 1 Rob. 35; State v. Hays, 30 W. Va. 119, 3 S. E. Rep. 184; Ryan v. McLeod, 32 Gratt. 378; Templeman v. Steptoe, 1 Munf. 368; This was an appeal from a decree of the High Court of Chancery, wherein the appellee was plaintiff. The suit was brought for a specific execution of an agree 301 ment, *whereby the defendant was to purchase a tract of land on the joint account of himself and the plaintiff; the prayer of the bill was for a partition of the land according to certain boundaries agreed upon by the parties, and for a conveyance. The court of chancery decreed in favor of the plaintiff, and directed the surveyor of the county to run a line of division, and to report the quantity of land on each side thereof. After a very lengthy argument in this court upon the merits of the case, the court dismissed the appeal, as being prematurely prayed before the final decree and remanded the cause to the court of chancery. Booth's Executors v. Armstrong. October Term. 1796. Verdict-Certainty-Plea of Plene Administravit+— Case at Bar.-The defendant pleaded a special plene administravit, and that he hath not, nor had any goods, &c. except to a certain value, which were not sufficient to satisfy the judgments mentioned in the plea. Replication. that the defendant hath and had, &c. goods. &c. more than sufficient to satisfy the said judgments, whereof he could have satisfied the plaintiff. Verdict "for the debt in the declaration mentioned." This is insufficient: the verdict ought to have found that the defendant had goods, &c. more than sufficient to satisfy the judgments, whereof he could have satisfied the plaintiff, or the value of the assets, if they were not sufficient. This was an appeal from a judgment of the District Court of Winchester. It was an action of debt, brought by the appellee, upon a bond given by the testator. Plea, setting forth sundry judgments obtained against the defendant, and "that he hath fully administered, all the goods of the testator which had come to his hands to be administered, and that he hath not, nor had &c. any goods &c. except the value of 133: 3: 3, which are not sufficient to satisfy the said judgments" &c. Replication, 'that the defendant hath, and on the day of commencing this suit had divers goods &c. more than sufficient to satisfy the said Alexander v. Coleman, 6 Munf. 340; Thorntons v. Fitzhugh, 4 Leigh 213. In this connection, the principal case is further cited with approval in Royall v. Johnson, 1 Rand. 427: Grymes v. Pendleton, 1 Call 54; Manion v. Fahy, 11 W. Va. 493. Fleming v. Bolling, 8 Gratt. 292; Vanmeter v. Van See foot-notes to Grymes v. Pendleton, 1 Call 54: meters, 3 Gratt. 148, and notes referred to therein. +Verdict-Certainty-Plea of Plene Administravit.-A verdict, upon the plea of plene administravit, must ascertain the amount of assets in the hands of the executor, to enable the court to pronounce judgment upon the verdict. The principal case is cited, in support of this proposition, in Fairfax v. Fairfax, 5 Cranch 21: Gardner v. Vidal, 6 Rand. 107; Gordon v. Justices of Frederick. 1 Munf. 14. See, in accord, Eppes v. Smith, 4 Munf. 466; Rogers v. Chandler, 3 Munf. 65: Sturdivant v. Raines. 1 Leigh 481. See foot-note to Richards v. Tabb, Call 522. Executors and Administrators-Plea of Plene Administravit. The principal case is cited in Gordon v. Justices, 1 Munf. 12, for the proposition that if the executor or administrator plead either a general or special plene administravit, he is only liable to the amount of the assets proved to be in his bands, See generally, monographic note on "Executors and Administrators" appended to Rosser v. Depriest. 5 Gratt. 6. judgments in the said plea mentioned, | It was therefore unnecessary to ascertain whereof he could have satisfied the plaintiff the exact amount of the assets. The verfor his debt aforesaid." dict is substantially right, and the court will mould it into form. The verdict was in the following words viz: we of the jury find for the plaintiff, the debt in the declaration mentioned, and one penny damages. Judgment de bonis testatoris &c. &c. si non the costs de bonis propriis. Wickham for the appellant. It is clear law, that upon a special or general plene administravit, it is necessary, that the jury, if they find for the plaintiff, should ascertain the amount of the assets. This verdict finds only that the truth of the issue is with the plaintiff, but it does not ascertain the value of the assets unadministered. amount of the assets. The reason of the Wickham. I do not think that the court can with the most liberal disposition to support this verdict, consider it a special finding, responsive to the issue; for if the defendant had but one penny more than sufficient to satisfy the judgments, it falsified the plea, and therefore it was incumbent upon the jury to find the issue in favor of the plaintiff. But it is agreed, that the plaintiff ought not to have a judgment for the whole debt, unless the court can be satisfied that there are assets sufficient to pay it. The Court was of opinion that the 302 *Marshall for the appellee. I shall not controvert the doctrine stated by certain and insufficient in not finding on verdict ought to be set aside "as being unMr. Wickham, with this qualification that if the jury find assets sufficient to satisfy chattels which were of the decedent at the the issue, that the appellant had goods and the debt, they need not find the precise time of his death in his hands to be adminrule is obvious, and will warrant this limi-istered, more than sufficient to satisfy the tation of it. Now in this case, the plain- judgments in the appellant's plea set forth tiff having replied assets sufficient to satisfy the judgments mentioned in the plea, as well as the debt in question, and the jury having found the whole issue due for the plaintiff, they have in fact found, that the defendant had assets sufficient in his hands. 777 whereof he could have satisfied the appeland chattels, if not sufficient to satisfy the lees demand, or the value of the said goods said demand." Judgment reversed, verdict set aside, and the cause remanded. 1. Upon an agreement to sell land during the existence of paper money, whereby part of the money was to be paid in June 1780, (when a deed was to be executed,) and the residue within twelve months thereafter. The money was not paid, nor was a conveyance made. The vendee upon a bill for a specific performance, was (under the circumstances of the case) decreed a conveyance upon his paying the value of the land at the time of the contract, instead of the value of the price agreed upon, according to the scale of depreciation. Gordon v. Frazier, &c., 130 4. But if in the above case the injured party chose to proceed by way of writ of error coram vobis, he was at liberty to do so; but as this was incurring unnecessary expence, the opposite party ought not to be condemned to pay the costs. Ib. 5. If the defendant to a writ of error coram vobis, plead in nullo est erratum," and conclude to the court. the trial must be by the court. 134 6. An error in the judgment of the court, can never be corrected by the same court. 135 7. Where an appeal is taken from a judgment for a sterling money debt, the general order of the court made at each term settling the rate of exchange, ought to appear in the record. Terrell v. Ladd, 150 219 3. The assignor of a note was liable to the assignee before the statute of Anne, in case payment was not made by the maker of the note when demanded. Ib. 4. What is due diligence, is a question proper for the determination of a jury. Ib. 5. The assignee of a bond, tho' for valuable consideration and without notice, takes the same, subject to all the equity of the obligor. Norton v. Rose, Picket v. Morris, ATTORNEY. 233 255 1. If an attorney be sued for not having filed a declaration, it should appear that he was engaged in the cause, time enough to have filed it. Stephens v. White, 211 2. To make an attorney liable upon such a charge, 212 gross negligence should be proved. BAIL. 1. Appearance bail is not required in actions of debt on bonds with collateral conditions. Ruffin v. Call, 181 2. The second sci. fa. against the special bail issued on the 3d of April 1771, returnable to the October term, and was returned not found." At June court, the bail moved to surrender the principal which was refused. Afterwards, in 1773, the motion was renewed by consent of parties, when the court permitted the render. The court were not precluded from making the latter decision, the motion being brought on again by consent, and they decided properly, since the writ being made returnable to an improper day, it was merely void, and consequently the first motion was made in due time. Bogle v. Fitzhugh, BILLS OF EXCHANGE. 1. See Declaration No. 1. BRIBERY. 1. See Information No. 1. CHANCERY. 213 3. In all cases where a general commission issues for taking depositions upon an answer and replication, in any suit in the High Court of Chancery the cause must remain at rules six months from the time of entering the replication, before it is set down for hearing, unless this is dispensed with by consent of parties entered on the record. Dalby v. Price, 191 4. See Jurisdiction No. 1, 5, 6. Appeal &c. No. 10. See Deed No. 5. COMMISSION 1. Declaration, "that plaintiff, by advice of the defendant, an attorney, instituted a suit against I. S. and then and there employed the defendant to prosecute the said suit to judgment; who, in consideration thereof undertook to conduct the same to the best of his skill; yet he had neglected to file a declaration, whereby &c." It being stated that the defendant undertook to conduct the suit and mismanaged it; it is not competent for him to aver a want of consideration. Stephens v. White, 203 2. Tho' a man is not bound to do an act for another without a reward yet if he will voluntarily engage, and enter upon the performance of it: he is liable for mismanagement. COSTS. 1. See Appeal &c. No. 3, 4. 211 4. The omission to lay damages in the declaration. though in an action sounding altogether in damages is cured after verdict by the statute of jeofails. Stephens v. White, DEED. 203 1. A deed, though neither indented nor recorded, is valid between the parties under the act of 1748, and is sufficient to pass an estate. Curry v. Donald, 58 2. A deed beginning, 'This Indenture' is a deed indented to every purpose. 63 3. Witnesses attesting the delivery of a deed, shall not afterwards be admitted to disprove it. Ib. 4. If a deed be delivered as an escrow, it ought to be so stated. Ib. 5. The commission for taking the privy examination of the wife; must be directed to, and executed by those who are in fact justices of the peace, but they need not be so named in the commission, or certificate, they will be presumed to be such, unless, the contrary appear. Harvey et ux. v. Borden, 6. See Grant No. 2, 3. DEMURRER TO EVIDENCE. 156 1. The testator devises certain lands to his son James for life, remainder to his son Muscoe and his heirs in trust, and for the use of the first and every other son of his son James who should survive him in tail male equally to be divided; but if his son James should die without male issue, then he gives the said lands to his son Muscoe during his life, with like remainders &c. to his other sons, and to three grandsons he also devises lands with like limitations, and then desires that the widows of any of his said sons and grandsons should be entitled to dower &c. James took an estate for life in possession, with remainder in tail male, expectant upon the determination of the estate tail to his surviving sons. 2. In the above case, the estate for life did not incorporate with the implicative branch of the devise. because the estates were of different natures; the former being a legal estate, and the latter remaining an equitable estate not executed by the statute, for the want of male issue of James coming into Ib. 34, 35 esse. 3. The estate tail in James, expectant upon the determination of the estate to surviving sons, was not bared by the act of 1776, being to take effect after a greater estate than for life or lives. Ib. 35 4. A man devises, that as much of his land should be sold as would be sufficient to pay his debts. To his wife he gives a moiety of his lands remaining after his debts are paid, and the residue of his estate and the reversion of the land given to his wife, to go to his children. The executor ought not to sell the reversion; if he do, a court of equity will set it aside upon the application of the children. 68 5. Devise to E. C. the testator's daughters, of the interest of £4000 government funds during her life, and at her death, the interest of the said £4000 to four grand children equally, and at their decease, the principal and interest to be disposed of by them to their heirs. E. C. released to the husband of one of the grand-daughters, all her right to the interest of £1000 of the said certificates. The grand-daughter Brock, &c. v. Philips, died in the lifetime of E. C. and her husband as her, DISCOUNT. 74 dence of title, though it did not appear, that the patent was signed by Mathews, as Governor. 276 12. A private survey may be admitted as evidence of boundary between those who were parties to it. or who claim under them; but not as to strangers. Ib 1. S being indebted to M afterwards obtains by 13. Illegal, improper evidence however unimpor assignment the bond of M. to an equal amount. tant to the cause, ought never to be confided to the He offers a discount, which M refuses, because he jury. 281 supposed he had an equitable objection against the 14. The recording of a paper which is not required payment of his bond in the possession of S. S. by law to be recorded, especially if no notice be assigns over the bond to P. for valuable considera- given to third persons whose interests may be tion and without notice. Under all the circum-affected, can never be binding upon them, nor stances of this case, the conduct of M, was not consid-charge them even with implied notice. ered as a waver of his right to discount, and he was permitted to offsett the bond of S, against his bond assigned to P. Picket v. Morris, ENTRY. EXECUTION. 280 1. Judgment in the county court of F, where the 255 defendant resided: a ca. sa. cannot be served upon him in the county of H, whither he had gone at the time the execution was levied, but no proof was made of his having moved his property out of the county of F. 72 1. An entry by Lord Fairfax for a forfeiture, was only necessary where a grant had been made; the issuing of the second warrant was sufficient. Pickett v. Dowdall, EQUITY. See Assignment No. 5. ERROR. 114 Collins v. Lowry, 75 3. Where a deposition is read at common law, whether taken de bene esse, or in chief, it should appear upon the record, upon an appeal, that notice of the time and place of taking it had been given to the adverse party. 75 4. The general rule is, that hear-say evidence is inadmissible: to this there are exceptions; but if it be admitted and excepted to, such a case should be stated upon the record as to show, that it came within some of the exceptions to the rule, otherwise the general rule will be against the admission. Claiborne v. Parrish, 146 5. The testimony of a witness tending to fix a fraud upon himself ought not to be regarded. Ib. 6. An entry by an administrator, of money paid over to the guardian admitted as evidence to charge the guardian under all the circumstances of the case, the administrator being dead and his hand writing proved. Brown v. Brown, 151 7. A letter, stating that the writer had heard of a slanderous report, is good evidence to prove the circulation of the report, and may be read for that purpose, the hand writing of the person being proved. But it would be inadmissible. to prove that the defendant had propagated the report. Schwartz v. Thomas, 167 8. Upon the plea of 'no such record,' if the record be of the same court, a copy of it ought not to be given in evidence, but the original ought to be produced in court for inspection. Lee v. Tapscott. 276 10. The rule in England, that the best evidence which the nature of the case admits of, ought to be produced, tho' generally true, is inapplicable as it respects titles to lands in this country; a copy of a patent, either from the records of the register's office, or of a county, is as good evidence of title as the original would be. 281 11. The copy of a patent, signed. 'Samuel Matthews. W. Claiborne,' dated 1658, and recorded in a county court, together with an assignment of it. (which assignment was acknowledged and admitted to record. but it does not appear that the patent was proved or acknowledged,) was admitted as evi Brydie v. Langham, 2. See Forthcoming Bond No. 2, 3, 4, 5. EXECUTORS. 1. See Slaves No. 1, 2, 3. 2. A man devises that as mach of his land should be sold as would be sufficient to pay his debts; to his wife he gives a moiety of his lands remaining after his debts are paid, and the residue of his estate, with the reversion of the land given to his wife, to go to his children. The executors ought not to sell the reversion of the moiety devised to the wife: if they do, a court of equity will set it aside upon the application of the children. Brock v. Philips, 68 3. An action of covenant respecting real estate. will lie against executors, tho' not specially bound. Harrison's Ex. v. Sampson, 155 4. In debt upon judgment recovered against an executor, upon motion, the declaration suggested a devastavit of assets which accrued after the judgment rendered; the executor is not precluded from pleading a special plene administravit and from supporting it by proof. Ruffin v. Pendleton, FAIRFAX, LORD. See Northern Neck. FOREIGN. 184 3. This grant was signed 'Samuel Mathews, W. Claiborne, and was assigned. The assignment was acknowledged and recorded in the county court. The grant was also recorded. The court considered a copy of this paper as sufficiently authentic, tho' Matthews is not stiled Governor, nor is he stated to have signed it as such; and although it does not appear that the grant was proved or admitted to record as an act of the court. Ib. GUARDIAN. 1. By the appointment of a second guardian in the room of a former one, the power of the former. as well as his habit of, receiving and disbursing monies generally, on account of the ward, ceases: and therefore payments made by him in depreciated |