1816. West V. Belches. It is but a small boon to ask for a security that he shall October, make the property of his principal, which is bound by a specific and existing lien, liable, in exoneration of his own, in the same manner as it would have been, if the execution had been levied upon the property of his co-security in the first instance. The Court is therefore of opinion, that the Appellant should be decreed to resort to the negroes Peter and Molly and their increase, (which were purchased by Tomkies from the Trustees Hughes and Camp.) for the payment of his debt and interest; that, in the event of payment not being made by Tomkies within a short and given day, the said negroes should be sold to satisfy the same; that, if the said Tomkies should have sold the said slaves, or any of them, he or his representatives should be decreed to pay the amount thereof in exoneration of his bona fide alienees; that, in the case of the insolvency of him, or his estate, for such amount, in the whole or in part, the Appellant shall be at liberty to seek satisfaction from the said negroes and their increase, in whose hands soever they may be, by a suit or proceeding, to which the respective holders and the Appellee are parties; and that the Appellant should only be at liberty to resort to the proper goods of the Appellee for such part of his debt and interest, if any, as may remain unpaid from the several sources above-mentioned. It is no objection to this decree, that it is nominally in favour of one defendant, and against another; for it is substantially a decree in favour of the plaintiff, (Belches,) who thereby exonerates his own estate. Therefore it is decreed and ordered, that so much of the decree of the said Court of Chancery, as conforms to the principles of this Decree be affirmed; and that so much of it, as conflicts therewith be reversed and annulled; and also that the Appellant pay unto the Appellees, being the parties substantially prevailing, their costs by them about their defence in this behalf expended. And it is ordered that the cause be remanded to the said Court of Chancery, to be finally proceeded in pursuant to the principles of this decree. Decided Nov. 1st, 1816. In Assumpsit, if there be seve Ellis against Turner's Administrator. THIS was an action of Assumpsit in behalf of Thomas ral Counts in Ellis against George Turner's Administrator, in the County the Declaration, Court of Caroline. the defendant should be char failed to pay The Declaration contained three Counts. The first alleged ged, as having a mutual parol submission to arbitration of certain matters in the several sums controversy between the plaintiff and George Turner, with an of money aforesaid, and every agreement that the award should be binding upon both parties, part thereof. and set forth an award," of which the said Turner had nodone, but the tice," (1) but did not set forth a promise, thereupon, that he breach charged would pay the money awarded (2) the second and third at the end of the last Count be, Counts were for money had and received, and a balance stated The breach of pro If this be not that he hath not paid the said to be due upon an insimul computassent. that all the evi sum of money," mise averred was in the following words: "Nevertheless the and it appear, upon a demur." said Intestate in his life time, and the said Reuben since his rer to evidence,« death, not regarding his several promises aforesaid, but condence adduced "triving to defraud the said Thomas in this behalf, hath not by the plaintiff applies only to" paid the said sum of money, or any part thereof, but the same the first Count, to pay the said Intestate in his life time, and the said Reujudgment ought to be given for" ben since his death, hitherto hath refused, and the said Reuthe defendant." ben still doth refuse to pay the same." The defendant, having pleaded non assumpsit, and being af terwards permitted by the Court to plead the Act of Limitations, on both which pleas issues were joined, at a subsequent term a Jury was empannelled to try "the issue" joined, a verdict was found, and Judgment entered for the plaintiff, which was reversed by the District Court of Fredericksburg; because it did not appear that the issue, joined upon the plea of the Act of Limitations, had been tried. The cause, being (1) Note. This averment was unnecessary; for one party is as much bound to take notice of the award, as the other, unless the stipulation be that the award shall be notified to the parties; in which case notice must be averred. 2 Saund. 62 a. note (4). (2) Note. In the form of the declaration, in 2 Chitty, p. 80, mutual promises "to perform the award to be so made" are set forth; but, after stating the award, there is no farther averment of a promise on the part of the defendant "to perform the award so made." In 11 Mod. 170. Lupart v. Welson, it is said that the mutual submission implies mutual promises to observe the award. 1816. remanded for a new trial, the defendant filed a Demurrer to NOVEMBER, the plaintiff's evidence, which was therefore spread on the record, and appeared applicable only to the first Count in the Declaration. The County Court was of opinion that, upon the Demurrer to evidence, the law was for the defendant, and gave judgment accordingly. Upon an appeal the Superior Court of law affirmed this judgment, upon the ground," that though the evi"dence in the Demurrer consisted substantially with the first "Count of the Declaration, yet that Count was utterly in"sufficient to ground a judgment on in favour of the plaintiff." To this Judgment a Writ of Supersedeas was awarded by this Court. November 1st, 1816, the President pronounced the Court's opinion: The Court, not deciding whether the Declaration in this case, in the first Count thereof, is defective or not, in not averring a promise by the defendant George Turner to pay the sums, stated to have been awarded against him, is of opinion that the same is insufficient to maintain the action, in this; that, for any thing therein shewn, the said sums may have been paid by the defendant George Turner, there being no averment to the contrary. On this ground, and not on that, assigned by the County Court in rendering its last judgment, as the ground thereof, (on which the Court gives no opinion,) the judgment of the Superior Court, affirming that of the County Court with costs, is affirmed. Ellis v. Turner's Administrator. Miller against Blannerhassett. Decided Friday 1. A Bond for IN this case, Miller obtained a Judgment against Blannerhassett in the County Court of Wood. A writ of Supersede as prosecuting a to that Judgment was awarded by the Superior Court of law, sedeas being exwhereupon the Bond for prosecuting the Supersedeas was exe ecuted by a Writ of Super Surety only, without any principal obligor, is insufficient; and a Supersedeas issued thereupon ought to be quashed. See Rootes v. Holliday et al. 4 Munf. 323. 1816. Miller V. NOVEMBER, cuted by a Surety, but not by Blannerhassett, or any other principal obligor in his place. The Superior Court having reversed the Judgment, Miller appealed to this Court, where, after argument, it was decided that the Judgment of the Superior Court was erroneous, because that Court had no cognizance of the case, the Supersedeas having been improvidently issued ; since the Bond was not signed by Blannerhassett, or any responsible person for him. Blannerhasset. Judgment reversed, and the Writ of Supersedeas, issued by the Superior Court of law, directed to be quashed. Decided Nov. 9th, 1816. 1. In Debt on a bond, in behalf of the sur Nicholson against Dixon's heir. THE Appellant John Nicholson, as surviving partner of John and Joshua Nicholson, who were assignees of Robert vivor of two Matthews, brought an action of Debt against John Dixon, heir joint assignees, a declaration, and devisee of John Dixon deceased. Upon a general Demurcharging that rer to the declaration, the Superior Court of law entered has not paid the judgment for the defendant, to which a Writ of Supersedeas the defendant debt to the obli gee, or to the was awarded. plaintiff, with out averring, al November 9th 1816, Judge ROANE pronounced the following so, that he did opinion of this Court : not pay it to the other assignee in "The Court is of opinion, that the declaration in this case his life time, is" is insufficient to warrant a Judgment on behalf of the present had on general demurrer. "Appellant, in this; that it only avers a non-payment of the "debt sued for to Robert Matthews the obligee, and to the plaintiff, but does not aver a non-payment to John and Joshua "Nicholson the immediate assignees of the said Matthews, or "either of them, during the life of the said Joshua, which "Joshua, the Appellant, is stated to have survived : and al"though, in point of law, a payment to either of them, during "the life of Joshua, may have been considered as a payment to "the plaintiff, and so have satisfied the terms of the averment "last mentioned, the Court is of opinion that an averment of "this character is not sufficient, under several decisions of this "Court, and particularly that in the case of Buckner v. Blair, "June 1811. (1) On this ground the Judgment is affirmed. (1) Note. See 2 Munf. 336; also Braxton's adm'x. v. Lipscomb, Ibid. 282; Green v. Dulany, Ibid. 518; and Norvell v. Hudgins, 4 Munf. 496. 66 Hollingsworths against Dunbar. 66 Decided Nov. 7th, 1816. nant depends, in ny, the Court that certain facts are established, ant has broken declaration;" THIS was an action of Covenant, brought by the Appellants 1. Where the against the Appellee in the Superior Court of law for Stafford extent of the plaintiff's right County, upon an Indenture made the 3d of March 1803, be- under the covetween Francis Thornton and Sarah his wife, and Robert Dun- part, upon exbar and Elizabeth his wife, of the one part, and Levi, John trinsic testimoand William Hollingsworths, of the other part; by which the ought not to instruct the Jury, said Thornton and wife, and Dunbar and wife, in consideration that if, upon of the sum of five thousand dollars, bargained and sold to the the said evidence, they shall said Hollingsworths a certain Mill seat on Rappahannock Ri-be of opinion ver, containing an acre and a half of land, by certain metes and bounds, together with the necessary right of taking water then the defend "by a race or canal, to be cut from the lower end of the forebay his Covenant as “ at Thornton and Dunbar's present grist mill pond, to the Mill charged in the "seat so intended to be sold and conveyed; which race is to be of for it is not competent to the sufficient width and depth to convey water for at least five over- Court to say "shot wheels, and from the said Mill seat to the River, not to whether such facts are suffi"exceed eighteen feet in width at the bottom under the reserva- cient, or not, to "tions, restrictions and covenants in certain articles of agree- warrant such conclusion, un"ment in this Indenture recited; as also the water necessary less the sufficiency thereof "for the said Hollingsworths to turn two water wheels, to be had been duly "taken from the grist mill pond of the said Thornton and Dun- submitted to its Judgment by a "bar, therein also intended to be bargained and sold, sufficient to demurrer to the "work two water wheels with four pair of mill stones, not to exevidence (1) "ceed six feet in diameter, and the necessary machinery usual- of Covenant "ly used for making and bolting flour, cleaning and screening declaration be"wheat and corn; provided there shall be first a sufficient quan- ing that, during a specified period "tity of water for the grist mill of the said Thornton and Dun- of time, the de"bar upon the present construction, or the same quantity, to be fendant depriv ed the plaintiff "used conformably to the said agreement:" and the said Thorn- of the water neton and Dunbar, and each of them, for themselves, their mill, by divert heirs, &c. did covenant, promise and agree to and with the ing it therefrom, and suffering it said Hollingsworths, that they the said Thornton and Dunbar, to be diverted and each of them, &c. “the aforesaid acre and a half of ground by others, the plaintiff is not “Mill seat and necessary right of taking water by a race or ca- limited in prov 2. The breach charged in the cessary for his ing acts committed by the de fendant or other persons, to the period stated in the declaration; but may prove previous acts, in consequence of which the injury was sustained during that time. (1) Note. That a Bill of exceptions cannot have the effect of a demurer to evidence, see Keel et al. v. Herbert, 1 Wash. 203, and Wroe v. Washington, &c. Ibid. 362. |