lifetime. certainly, when connected with other parts no 337 *against the appellants, for a debt on the proviso, even standing alone; but charged as due to the testator in his "This Court (not deciding upon certain questions made by bills of exceptions) was of opinion that the declaration was defective in this, that it was not averred that the debt in the declaration mentioned was not paid to the testator of the plaintiff, or to either of his co-executors, but only that the same was not paid to the plaintiff." The judgment was therefore reversed, and it was considered that the appellee take nothing, &c. Blair being dead, a question was raised whether there should not be process of revivor; but, as he died between the verdict and judgment, and no alteration in the parties had taken place since the appeal, the court considered process of revivor unnecessary. Drummond's Administrators v. Richards. Covenant*-Proviso in Mortgage Deed.-An action of Wednesday, September 25th. JUDGE ROANE reported the opinion of the court. "This court (not deciding whether the judgment of the county court was erroneous in refusing leave to the appellee's counsel to file the eight pleas, mentioned in 339 *the bill of exceptions, on setting aside the office judgment) is of opinion that the judgment of the district court, reversing that of the county court, and rendering judgment for the appellee, is correct; so much of the declaration in the cause as charges the non-payment of the several sums The appellants instituted an action of cov- of money therein mentioned being insuffienant, in the county court of Spottsylvania, and the issue joined, on the other part cient, in point of law to sustain an action; against William S. Stone and Thomas thereof, being found in the appellee's favor. Richards. They declared upon the proviso The judgment of the district court is, in a mortgage deed, that "if the defendants therefore, on this ground, affirmed." should pay certain sums of money, at certain times therein mentioned, then the said deed should be void," &c. and also on an express covenant, that the mortgagee might reenter and quietly enjoy the premises in case of failure of payment. The breach laid was non-payment of the money, and not permit-. Judgment by Default*-Writ Unreturned.—A judg ting the re-entry and quiet enjoyment. At June term, 1805, office judgment was confirmed, and writ of inquiry awarded. At November term the pleas of "conditions performed," and "conditions not broken," were filed. The jury found a verdict for the defendant, William S. Stone; he being 338 a certificated bankrupt. *They found for the plaintiff, against the other defendant, part of the sums of money specified in the declaration; that part was not yet due, and another part had been paid; and, as to the other convenants, they found for the defendant. Upon this verdict judgment was entered against the defendant, for 850 dollars, the principal sum due, with interest from the 1st day of December, 1804, till payment, and costs. A bill of exceptions shows that, before the defendants filed the two pleas, they offered, at August court, 1805, eight formal pleas, covering. in various shapes, the same matter that the two pleas contained; which eight pleas the court rejected. There was an appeal to the district court, where the judgment was reversed, and the suit dismissed with costs. The plaintiffs then appealed to this court. Botts, for the appellants, insisted that the action of covenant might well be maintained *Covenant-Trust Deeds.-A demurrer lies to an case. action of covenant on trust deed executed merely as collateral security for payment of promissory note. Wolf v. Violett, 78 Va. 57, 62, citing principal See further, monographic note on "Covenant. The Action of" appended to Lee v. Cooke, 1 Wash. 306. The principal case is also cited in Moss v. Green, 10 Leigh 274. Winchester and Others v. the President and ment by default cannot be entered, when the writ has not been returned. 2. Statute-Establishment of Bank-Construction.— The true construction of the 20th section of the act "for establishing a bank in the town of Alexandria" is, that the power of granting appeals, writs of error, or supersedeas is taken away from the appellate court, in relation only to judgments rendered pursuant to that act, and upon writs of capias ad respondendum executed according to the directions thereof. See, also, as to the right of appeal to the supreme court of the United States, from judgments of the circuit court of the district of Columbia. in favor of the bank of Alexandria, 4 Cranch, 384-398, Young v. The Bank of Alexandria. Upon a writ of supersedeas awarded by a judge of this court to an order of the Fredericksburgh district court. The plaintiffs in error presented a petition to the district court, praying a writ of supersedeas to a judgment of the county court of Spottsylvania, recovered against them by the president and directors of the bank of Alexandria, as assignees of Ricketts & Newton. The judgment was obtained on the 8th of April, 1807, against the drawers of a note, expressed on the face thereof to be negotiable at the said bank; the declaration being filed and a jury empanelled, without any appearance, or opposition on the part of the defendants; and the clerk certified that writ was not returned by the sheriff at the time the judgment was rendered. The district court overruled the petition, being of the (a) 2 Bac. Abr. (Gwill. ed.) 65. tit. Covenant, letter (B.) *Judgment by Default. See monographic note on "Judgments" appended to Smith v. Charlton, 7 Gratt. 425. opinion that, under the act incorporating the bank of Alexandria, an appeal, writ 340 *of error, or supersedeas, will not lie, in any case, where a suit is brought by the said bank against the drawer of a note expressed to be negotiable at the said bank. Williams, for the plaintiffs in error. Botts, for the defendants. Saturday, October 26th. JUDGE ROANE pronounced the following opinion of this court: "Without considering, or deciding upon, the other questions made in this cause, the court is of opinion that, under the true construction of the twentieth section of the act for establishing a bank in the town of Alexandria, (a) the power of granting appeals, writs of error, or supersedeas, is taken away from the appellate court in relation only to judgments rendered pursuant to the act afore said, and upon writs of capias ad respondendum executed according to the directions of the act; and, as it does not appear of record, in this case, either that any writ issued, or was served upon the plaintiffs, or either of them, prior to the rendition of the judgment in question, the order of the district court is erroneous, because, as is aforesaid, the correcting power of the district court was not prohibited by the act aforesaid, in relation to the case presented to that court by the petition for the supersedeas; therefore it is district court be reversed and annulled, with costs, and this court, proceeding to make such order as the said district court ought to have made, doth order that a writ of supersedeas issue to the judgment aforesaid of the said county court, upon the plaintiff's entering into bond with sufficient security in such penalty as the superior court of law of the county of Spottsylvania shall direct." considered that the order aforesaid of the The president reported the opinion of the court that, the decree being, in part, (a) Sessions acts of 1792, p. 105. *Executors-Appeal-When Security Required.-The question as to when an executor, appealing from a judgment or decree, is required to give security for the prosecution of the appeal, has been discussed at some length in notes in this series of reports and the rule deduced that, where the object of the appeal is to assert the rights or protect the interests no of the estate which the executor represents, bond or security is required; but, on the other hand, where the judgment or decree appealed from is against the executor personally, and does not affect in any way the estate of the decedent, he should be required to give bond and security as any other individual. before he can appeal. No appeal bond is required in the first case above mentioned because the official bond, already executed, will bind the personal representative and his sureties to pay the amount of the judgment or decree in case of affirmance, provided there be assets of the estate: and that is all the appellee has a right to demand. See foot-note to McCauley v. Griffin. 4 Gratt. 9: foot-note to Wilson v. Wilson, 1 Hen. & M. 15: foot-note to Sadler v. Green, 1 Hen. & M. 26; monographic note on "Executors and Administrators" appended to Rosser v. Depriest, 5 Gratt. 6. in On this subject. the principal case is cited Shearman v. Christian, 1 Rand. 394; State v. Johnson, 28 W. Va. 65, 79. I. Sale Alexander v. Deneale. Thursday, Sept. 19th, 1811. of Personalty-Retention of Possession by Vendor-Fraud Per Se.*-It seems now settled, that an absolute deed of slaves, or other personal property, the possession of which remains with the vendor, is fraudulent. per se. as to creditors. See Edwards v. Harben, 2 T. R. 587; Hamilton v. Russel, 1 Cranch. 315; Roberts on Fraudulent Conveyances, 552-586, and 2 H. & M. 302, 303. JUDGE ROANE'S opinion. William Henry Washington and Philip Alexander instituted an action of trespass in the Haymarket district court against William Deneale, as sheriff of Fairfax county, for taking certain slaves claimed by them as their property. The declaration was in the usual form; plea not guilty, and issue. The suit afterwards abated, as to the plaintiff Washington, by his death. A bill of exceptions disclosed the following case: George Minor obtained a judgment against John Luke, and informed him of it, in pursuance of his previous request. Luke then executed to Washington and Alexander a deed, which was duly recorded, conveying absolutely to them all his personal property, (comprehending the negroes in question,) in consideration of the sum of instrument itself; but, according to other three thousand dollars, according to the evidence, in order to secure them, they being his creditors to a considerable amount. Part of the property was delivered at the time, but immediately restored to the vendor, and remained in his possession. Minor after 342 wards sued out execution on his *judgment, and Deneale, as sheriff, seized and sold the negroes as the property of Luke, though the sale was forbidden, and the recorded deed produced by Washington. The defendant moved the court to instruct the jury that the deed was fraudulent. The court stated that, "as the law now stands, an absolute conveyance of personal estate, where the party making it retains possession, is void, as to creditors, even without other evidence of fraud; though this appears to be carrying the matter too far, and, perhaps, agreeably to ancient determinations, it would have been better to have considered it as evidence of fraud, connected with other circumstances." To this opinion the plaintiff excepted. Ver *Sale of Personalty-Retention of Possession by Vendor-Fraud Per Se. The proposition laid down in the principal case and in many other early Virginia cases that an absolute sale of personalty, the possession of which remains with the vendor, is fraudulent per se-is repudiated in Davis v. Turner. 4 Gratt. 422. See foot-note to Davis v. Turner. 4 Gratt. 422, where the subject is discussed, the cases in point collected, and where it is shown that Davis v. Turner is considered binding authority by decision subsequent thereto. The principal case was cited on the point in Hardaway v. Manson, 2 Munf. 233; Hill v. Harvey, 2 Munf. 525: Land v. Jeffries, 5 Rand. 252, 258; Land v. Batton, Jeffries, 5 Rand. 606, 608; Glasscock v. 6 Rand. 83; Claytor v. Anthony, 6 Rand. 304; Davis v. Turner. 4 Gratt. 447, 456, 459; Bindley v. Martin, 28 W. Va. 792; Howard v. Prince, 12 Fed. Cas. 651. dict and judgment for the defendant, and appeal taken by the plaintiff. Peyton Randolph, for the appellant. Edmund I. Lee and Botts, for the appellee. Saturday, September 28th. JUDGE ROANE pronounced the opinion of this court. "The court, being of opinion that the instruction of the judge of the district court conforms, in substance, to the settled rule that an absolute deed of slaves, or other personal property, the possession of which remains with the vendor, is fraudulent, per se, as to creditors, approves of that instruction, and affirms the judgment." 343 Wells's Heirs v. Winfree and Others. Decided Tuesday, October 8th, 1811. Guardian Ad Litem*-Necessity of Accepting Appoint. ment. A guardian ad litem, appointed to prosecute an appeal on an infant's behalf, is not obliged to accept the appointment. A reasonable time ought, therefore, to be given him to consider whether he will accept, and to prepare for trial. This suit having abated by the death of the appellant, a scire facias to revive was. awarded, and returned executed on two infant children. At October term, 1810, on motion of Mr. Hay, counsel for the appellees, a guardian *ad litem was assigned them by the court, and notice served upon the person appointed. On Saturday, the 16th of November, (during the same term,) Mr. Hay moved to take up the cause, exhibiting proof of service of the notice; and no counsel appearing for the infants. But the court (consisting of Tucker. Roane and Fleming, Judges) unanimously determined that time should be given to the person appointed, until the next term, consider whether he would act as guardian, and to prepare for trial; observing that stronger reasons existed, in this case, than in that of a scire facias to revive against an executor or administrator.(a) was to In March, 1811, Mr. Hay moved to dismiss the appeal for want of prosecution, no counsel appearing for the appellants. He contended that where infants are plaintiffs, they occupy the same ground as adults; and quoted 2 P. Wms. 519. Lord Brooke v. Lord and Lady Hertford ; and 3 Atk. 626, Gregory v. Molesworth. JUDGE BROOKE observed that, in this case, the infants are not plaintiffs, but defendants, to the scire facias. JUDGE TUCKER was of the same opinion, observing that the person nominated as guardian ad litem could not be compelled to take upon him the office ;(b) and that, therefore, the infants must be protected as involuntary parties brought into court by process. The court overruled the motion for an absolute dismission; but made an order "that the appeal be dismissed, unless good cause be shown to the contrary, on or before the 18th day of May next, satisfactory proof being required that a copy of such order shall have been served on the appellants, at least twenty days previous to that time. *See monographic note on "Infants" appended to Caperton v. Gregory, 11 Gratt. 505. (a) See Rev. Code, v. 2. c. 101, s. 1, p. 127, and a Rule of Practice, 3 H. & M. 270. (b) Fox v. Cosby, 2 Call, 1. Friday, September 20th. The cause 344 was again called, *when Wickham appeared as counsel for the appellants, and Hay, for the appellees. The points made in argument, and circumstances appearing in the record, are not worth reporting; because the court affirmed the decree, without assigning any particular reason; and, therefore, (considering the nature of the case, the claim of the appellants being subject to objections either of which was sufficient to overthrow it,) no certain conclusions can be drawn con| cerning the grounds on which the decision was founded. (1) Brooks v. Scott's Executor. Friday, April 5th, 1811. General Indebitatus Assumpsit* - Evidence - Special Agreement. In an action of general indebitatus assumpsit, for services rendered as an overseer, or of quantum meruit for like services, the plaintiff cannot give in evidence proof that the defendant had employed him as an overseer, and was to pay him a certain quantity of tobacco. In such case, he should declare upon the special agreement. the In an action of assumpsit by Hezekiah Brooks against James Scott, in the county court of Prince Edward, the declaration contained four counts, viz. 1st. A general indebitatus assumpsit for goods sold and count for money delivered; 2d. A like lent; 3d. A like count for services done and performed in the capacity of an overseer; and, 4th. A common quantum meruit for like services. At the trial, on general issue, the plaintiff offered evidence to prove that the defendant had acknowledged he had employed the plaintiff as an overseer for the term of three years, and was to pay him the quantity of two thousand pounds of tobacco per year; to which testimony the defendant objected; but the objection was overruled by the court, and the evidence permitted to go to the jury; to which opinion of the court a bill of exceptions was filed. Verdict and judgment for the plaintiff. Upon an appeal, the district court was of opinion that the county court "acted 345 improperly in admitting evidence to *go to the jury, of a special agreement to support the general charges laid in the declaration." The judgment was therefore reversed with costs; the suit retained for trial, and leave given to amend the declaration; whereupon the plaintiff obtained a writ of supersedeas from a judge of this court. Samuel Taylor and Munford, for the plaintiff. (1) Note. This was often the case, with respect to the court's decisions during the present year; the crowded state of the docket having induced the judges, for the sake of expedition, to refrain from specifying their reasons in many instances, especially in cases involving points already settled.Note in Original Edition. *Indebitatus Assumpsit-When It Lies on Special Contract.-Where the terms of a special contract for work and labor, not under seal, have been permoney, may be recovered in an action of general formed, the stipulated compensation, if payable in indebitatus assumpsit. Brown v. Ralston, 9 Leigh 532. 545, 548, citing the principal case. See generally, monographic note on "Assumpsit" appended to Kennaird v. Jones, 9 Gratt. 183. Assumpsit-Money Paid.—In an action of assumpsit, the count for money paid can only be supported by proof of an actual payment of money or its equivalent. Butterworth v. Ellis, 6 Leigh 114, citing the principal case. Wickham, for the defendant. Monday, April 15th. The judges pronounced their opinions. case; and the principle in such actions being that the allegata and the probata must correspond, the question was, whether JUDGE CABELL. (After stating the the case made out in evidence corresponded case.) The only question now to be de- with that specially stated in the declaracided is, whether the evidence was properly tion. Upon the view of the subject which admitted, under either count in the decla- I have taken, I am clearly of opinion that ration. The first two counts, being for the judgment of the county court was goods sold and money lent, are so totally erroneous; and, therefore, that the judgvariant from the evidence as to be thrown ment of the district court, reversing that of entirely out of view. Nor do I think the the county court, ought to be affirmed. evidence admissible under the 3d count. 347 *JUDGE ROANE was of the same opinion. JUDGE FLEMING. The only question in this case is, whether the evidence excepted to by the defendant was properly admitted by the county court to go to the jury, on the trial of the issue; and it appears to me that it was not. The use of pleading, as laid down in the books, is, on the one hand, to set forth and state, with precision, the fact or facts which in law show the justness of the plaintiff's demand; and on the other hand, the discharge or defence made by the defendant in bar of the plaintiff's action; and, on the trial, the evidence ought to apply directly to the matter in issue between the parties, to prevent surprise on either side. It is true that, with respect to debts for work and labour, or other personal services, the rule is, that, however special the agreement was, yet if it was not under seal, and the terms of it have been performed on the plaintiff's part, and the remuneration was to be in money, the party may declare either specially on the original executory agreement, or in indebitatus assumpsit, on the express promise to remunerate, (if there was one,) or on the promise which the law implies on the execution of the agreement. But this rule, so far as relates to the indebitatus assumpsit count, has never been carried farther than to those cases where the remuneration contemplated by the parties was to be in money. When the remuneration was not to be in money, but was to The declaration, then, ought to state be in any other kind of personal property, such a case as, if supported by legal evior in personal services, or in the doing dence, will entitle the plaintiff to reany collateral act, (as the delivery cover. It ought, also, to be stated in such 346 of a bond or the like,) there, *the a manner as to afford the defendant a fair general indebitatus assumpsit count opportunity of making a full and complete is not sufficient, but the declaration must defence; and, lastly, so that a recovery in be special. This principle applies, I con- the suit may be pleaded in bar to any future ceive, with full force to the case now before action for the same thing. the court, (where the remuneration was to be in tobacco,) and proves the error of the county court. Every reason for excluding the testimony under the third count, is at least equally applicable to the fourth, or quantum meruit count; for it cannot be contended that the latter count admits a greater range of testimony than the former. In fact, they are both emphatically termed money counts, "being founded on express or implied promises to pay money in consideration of a precedent debt." To extend them farther would be to demolish the distinction, wisely adopted, between general and special counts, and, with it, all those barriers established for the safety of the defendant, by apprizing him of the real nature of the plaintiff's claim, and by enabling him to plead a former recovery in bar of a subsequent action. The cases cited by the appellee's counsel are not at all applicable. In the case of M'Williams v. Willis, (a) the question was whether a written agreement not under seal could be given in evidence, under a declaration which set forth the same agreement truly and substantially, but without stating it to be in writing; and the court very properly decided that it might; because a parol agreement is not changed in its nature by being reduced to writing. It is in fact, and in law, the same agreement. The case of Wroe v. Washington and others (b) was a special action on the (a) 1 Wash. 199. Let us apply these rules or principles to the case before us. The material count in the declaration states that "the defendant was indebted to the plaintiff in the sum of 1641. 14s. for work before that time done and performed, by the plaintiff in the capacity of an overseer, for the defendant, at his request; and the defendant, being so indebted, in considération thereof, assumed," &c. The plea was non assumpsit, and issue thereon. The evidence excepted to was, that the defendant had acknowledged, before a witness, that he had employed the plaintiff as an overseer for three years; and was to pay him 2,000lbs. of tobacco per year. 348 The evidence then proves a special agreement to pay a quantity of tobacco, *for certain services, which was allowed to support a general charge of a sum of money, said to be due for services performed as an overseer, which, in my conception, was irrelative to the issue, and tended to take the defendant by surprise. Every plaintiff is presumed to understand his own and to know what evidence he can bring forward in support of it; which ought to apply directly to the charge in the declaration, and not by inference or implication. case, Mr. Taylor, in his argument, cited and relied on two cases, M'Williams v. Willis, 1 Wash. 199, and Story v. Atkins, 2 Stra. 719, but neither of them, in my conception, applies to the case before us. In the first, the declaration charged the defendant on a bail for his appearance, but failing to ap- colloquium, and agreement for 301. per to the issue. 349 *In the case before us, the plaintiff, It may be said that a judgment by default admits the facts; but a judgment by default can only be considered as an admission of that which is stated in the declaration. In this case, the declaration only charges that Thomas Scott & Co. signed and sealed the penal bill; but not that Archibald M'Rae signed it, or was a partner. Neither does a defendant admit, by default, every thing necessary to maintain the plaintiff's action; the gist of the action must be set forth in the declaration. But, even if M'Rae was bound by his default, the other defendants, upon whom no process was served, were not. 2. If M'Rae was a partner, and had been so averred in the declaration, he was not legally bound by this bill penal, which has only one seal, and is signed "Thomas Scott & Co."(1) in order to avail himself of the evidence excepted to, should have brought a special action on the case, stating the agreement, his performance of the services, for which the law would have implied an assumpsit, his demand for the tobacco, and the defendant's refusal to pay: with One partner cannot bind the company an averment that the tobacco contracted by a bond signed by himself only, unless for was worth so much money, and laid it be done with the assent of the rest, and his damages accordingly; and then the on their behalf. (a) If the declaration had parties would have gone to trial on fair and said that M'Rae signed for himself and equal ground; and no surprise on either the other partners, the judgment could side. But, as the case appears, the judg- only have been against M'Rae. ment of the county court cannot be sustained; and was properly reversed by the judgment of the district court, which is affirmed by the unanimous opinion of this court. Thomas Scott & Co. v. Dunlop, Pollok & Co. Thursday, March 21st, 1811. 1. Partnership-Suit against* — Name of Partners Omitted in Writ-Judgment.-In a suit against a mercantile company. if the names of the partners be omitted in the writ and declaration, and the writ be served on a person not named in either, a judgment against the company, for that person's failing to appear, cannot be sustained. 2. Same Same Same Same.-Quære, in such case. whether any judgment by default could be sus tained? This was an action of debt in the county court of Chesterfield, brought by Dunlop, Pollok & Co. against Thomas Scott & Co. upon a penal bill, alleged in the declaration to have been sealed and delivered by the said defendants;" without specifying their names. The writ was against "Thomas Scott & Co. or either of the partners, if they be found," &c. and was executed on Archibald M'Rae; the sheriff returning that Thomas Scott was not found. M'Rae gave 3. Service of the writ upon a partner might have warranted a judgment against that partner, but not against the company. (b) The rule in England is that, where the process is against two, on a joint cause of action, and one only appears, the other must be outlawed before there can be any further proceedings. (c) It is, indeed, 351 preposterous that judgment should be rendered against *a man who had no opportunity to defend himself; such a position is contrary to the first principles of justice. 4. A judgment on behalf of, or against, persons not named, is erroneous; except in the case of corporate bodies, who may sue and be sued by their corporate names; but worded as follows: Know all men, &c. that we (1) Note. The bill penal set forth in the record Thomas Scott & Co. of Powhatan county, do promise to pay or cause to be paid unto Dunlop, Pollok & Co. of Chesterfield county and town of Manchester, the just and full sum, &c. on demand, for value received. We bind ourselves, our heirs, &c. in the penal sum, &c. Witness our hands and seals this 1st day of June, 1799. Thomas Scott & Co." (seal.)— Note in Original Edition. (a) Ball v. Dunsterville, 4 T. R. 313; Harrison v. Jackson, 7 T. R. 207; Shelton v. Pollock & Co., 1 H. & M. 423. (b) Brown v. Belsches, 1 Wash. 9; Moss and others v. Moss's Administrator, 4 H. & M. 293. (c) Edwards v. Carter and others. 1 Str. 473; Symonds v. Parmenter and Barrow, 1 Wils. 78: S. *See monographic note on "Partnership" ap. C. 1 W. Bl. Rep. 21; Sheppard v. Baillie, 6 T. R. 327; pended to Scott v. Trent, 1 Wash. 77. Saunderson v. Hudson, 3 East, 144. |