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MARCH, 1816.

Garth's execu.

tors

V.

Barksdale.

"slaves, although in the borrower's possession at the time of "levying said execution, unless five years had again elapsed "after the possession of said slaves was restored to the borrower to which opinion of the court, the defendants "excepted."

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Verdict for plaintiff for $670 damages :-Judgment de bonis testatoris; from which the defendants appealed to this court.

Wickham for the appellants. Whether the court's instruction to the jury was correct, or not, depends upon the statute of frauds. This case is obviously within the letter of the law, and still more clearly within its meaning. A loan must be considered, in relation to creditors, as vesting the absolute property in the borrower after five years possession, unless it be evidenced by writing; though, as between the parties, the lender may assert his right at any time. law is to prevent the holding out of false titles. a transfer for valuable consideration, which is creditors.

Leigh for the appellee.

The

object of the A loan is not

good against

For aught which appears in the record, the opinion of the court did not obstruct the proof which the defendants undertook to adduce; nor at all conflict with the defence set up by them. The instruction given was upon a mere abstract question not applying to the case ;-for the proof on the part of the defendants was that Douglas Barksdale had been in uninterrupted possession for five years next before the levying of the execution; and no motion appears to have been made to the court for any instruction to the jury.

But if the opinion of the court can be applied to the case stated in the bill of exceptions, that opinion is correct; being almost in the very words used by this court in Beasley v. Owen, 3 H. & M. 449–458. This court is not studiously to hunt out errors in the judgment. If a case might exist to justify the instruction, it ought to be presumed that such was the case, unless the contrary appears. The judgment is presumed to be right, if it do not appear to be erroneous. It is not incumbent on me to shew it was right, but on the appellant's counsel to shew it was wrong.

Wickham in reply. The defendant only undertook to prove a possession of five years;—not of five years next before the execution he contended that possession for five years “before” the execution, (though not the five years next before it,) was sufficient. The case of Shelton, v. Cocke, Cranford & Co. is a clear authority to shew that the instruction must be understood as applying to the case before the court. The instruction given is clearly erroneous. The court ought to have said, "provided such re delivery was open and public." The spirit and intention of the law is to prevent secret trusts to the injury of creditors. If a mere taking back of the property, and re-delivery, (after the five years possession had vested the property in the loanee for the benefit of his creditors,) should be considered sufficient to defeat the claims of creditors, it would amount to a repeal of the statute of frauds. No matter when we became creditors ;-no matter how far we were imposed upon by this act of the party;-the court's opinion was a bar to the admission of our evidence. And, whether this instruction was given asked or unasked, it led to an erroneous decision by the jury. The judgment therefore must be reversed.

March 7th, 1816, the president pronounced the opinion of this court.

"The court is of opinion that the instruction of the supe"rior court is erroneous in this, that the five years possession "of the negroes by Douglas Barksdale, if proved, vested a "title in him which enured in favour of his creditors, notwith66 standing he might thereafter have returned the same to the plaintiff from whom he had derived them.-The judgment "is therefore reversed, the cause remanded, for a new trial to "be had therein, on which no such instruction is to be given, "but one, if required, correspondent with this decision.

MARCH, 1816.

Garth's execu

tors

V.

Barksdale.

Scott and Wife against Halliday and Hinton.

Decided March 16, 1816.

1. If a fieri

WILLIAM SCOTT and Mary his wife, formerly Mary Davis widow of Edward Davis deceased, presented a bill of injunc-facias against

the goods of a testator be levi

ed on slaves, which, by his will, were specifically bequeathed, and after his death were allotted to the legatee by the executor, who thereupon held them, and hired them out, as guardian for

MARCH, 1816.

Scott and wife

V.

Halliday, &c.

tion to the judge of the superior court of chancery for the Richmond district, stating that the said Edward died about the month of October, 1806, seized and possessed of a considerable estate, real and personal;-that, before his death, he duly made and published his last will in writing, in which, (among other things,) he bequeathed to the plaintiff Mary certain slaves for her life, and certain other slaves to Martha E. Davis, (a posthumous child.) as her own absolute property ;--that Hard. away Manson was appointed, and lawfully qualified as executor of the testator, and guardian of the said Martha E. Davis, and, in the course of his administration as such delivered to the plaintiff Mary the slaves devised to her as aforesaid for her life, and held, in his character of guardian aforesaid, the slaves devised to Martha E. Davis his ward, as aforesaid, which cir cumstances ought to be regarded (until the contrary should appear,) as conclusive proof that independently of the said slaves, the said executor possessed enough of his testator's estate to pay every debt chargeable thereon; for debts are certainly to be paid before legacies, and, therefore, whenever an executor shall discharge legacies, the inference inevitably is, that all debts have been paid, or that they are ready to be paid by the

executor.

The complainants farther stated that, the securities of the said executor for his administration having demanded countersecurity, which he failed to give, administration de bonis non with the will annexed was granted to the plaintiff Mary, then Mary Davis; that, after the death of Hardaway Manson, she also qualified as guardian of the said Martha E. Davis, and in that character was possessed of the slaves devised to her ;that, in their opinion, they had fully and faithfully adminis tered all the estate of the said Edward Davis which had come to their hands to be administered;-but of this they were ready and willing to render an account;-that, since their intermarriage, a judgment had been lately obtained against them, as administrator and administratrix, in the superior court of law

such legatee;--a court of equity ought, by injunction, to stop the sale, until an account of the assets remaining uuadministered shall be taken, and upon such account, to decree that the creditor shall be satisfied out of those assets; or, if there be a deficiency,) out of the residue of the estate of which the testator died possessed, having regard to the rights of the several legatees under the will See Burnley v Lambert, 1 Wash. 312; --Randolph v. Randolph and others, 3 Munf 99; and Wilson and Trent v. Butler and others, Ibid. 559.

1816.

V.

Halliday, &c.

for Dinwiddie county, by Halliday and Hintons, for the sum of MARCH, 139/. 5s. 7 1-2d. with legal interest thereon from the 4th day of September, 1807;-the suit in favour of the said Halliday and Scott and wife Hintons having come to trial unexpectedly, which prevented their shewing, under the plea of plene administravit, that no assets remained in their hands-that, a writ of fieri facias being issued upon the said judgment, was levied on three slaves the property of Martha E Davis, acknowledged to be such, and held as such, not by the complainants only, but also so previously held by the said Manson; that, in performance of the duty which he owed to his ward, the complainant William Scott forbade the sheriff to levy the said execution upon those slaves; which he nevertheless persisted in doing, and would proceed to sell them, unless restrained by the court. The plaintiffs therefore prayed an injunction to stop the sale, and for such other relief as their case required;-making the said Halliday and Hintons, and also Thomas Parham acting administrator of Hardaway Manson, defendants to their bill.

Chancellor Taylor refused to grant an injunction according to the prayer of this bill; but it was granted by SPENCER ROANE a judge of the court of appeals ;-judges BROOKE, CABELL and COALTER concurring, and judge FLEMING, being absent.

The defendants Halliday and Hintons filed their answer, stating that, after every effort had been used by the complainants to defeat their claim, (the justness of which is not controverted,) they obtained their judgment at law, and sued out execution; that the same was levied on negroes, which were the property of the said Edward Davis in his life time; that they were informed, and most sincerely believed, that no assignment was made to the widow, or to Martha E. Davis, of the negroes bequeathed to them respectively there was no evidence of it on record; nor did the fact ever take place; but, if it did, the complainants were bound to prove it; and, even in that case, as they had voluntarily brought themselves before a court of equity, the court ought to pronounce exactly such a decree as if the respondents had instituted a suit therein. If, however, such an assignment was made, it was strange that the widow should have taken on herself the burden of administering on the estate, (when, if the allegations of the complainants were true,

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MARCH, 1816.

V.

Halliday, &c.

the estate was nearly, if not entirely, administered;) and that she should not have pleaded that fact to the suit. The resScott and wife pondents remarked, to shew the fraudulent conduct of the complainants, that, whenever a judgment was obtained against Scott for a debt contracted by himself, a marriage contract was exhibited by the wife as a bar to the levying of the execution; that if a judgment was obtained against herself as administratrix, then the property was shielded by its having been assigned and allotted to her by the executor; and if a judgment was obtained against Scott and wife, for a debt contracted by herself while a feme sole, then the property belonged to the estate of Edward Davis, and no disposition could be made of it until his debts were paid off and extinguished. Yet they paid no debts of any description or character!

The answer of Thomas Parham, administrator of Hardaway Manson, stated, that, shortly after the complainant Mary qualified as administratrix of Edward Davis, an order was made by the county court of Dinwiddie, requiring certain gentlemen to examine, state and report the accounts of the said Hardaway Manson as executor; that, in compliance with that order, the commissioners did report a balance to be due from the said executor, amounting to about 160 or 2007.; that, shortly after wards, the complainants Scott and wife instituted a suit against said Manson to recover that balance, and a judgment was confessed by him in their favour for the same; that, the said judgment not having been paid in the life time of the said Manson, a scire facias to revive it was sued out by the complainants against this respondent and Joanna Manson as administrator and administratrix of said decedent; which scire facias was still pending in the county court of Dinwiddie; that this respondent had made to the complainants several payments in part of said judgment, and meant to pay the balance, unless this court should direct otherwise: but he insisted that the settlement aforesaid was final and conclusive between the said Davis's estate, and the said Manson's, unless fraud or mistake could be shewn; and that the complainants had made it binding on them by accepting it, and suing for, and receiving a confession of judgment for the amount. "After this, it surely "cannot be contended that this respondent is accountable to "Halliday and Hintons, and to the complainants too; or that

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