1815. Dow V. Adam's administrators. DECEMBER, action for covenant broken against Janet Dow, assignee of Peter Dow, in the Superior Court of law of Loudoun county. The declaration was upon an indenture, whereby Robert Adam, on the 13th of December, 1785, demised to Peter Dow, his heirs and assigns forever, five tracts of land ;-the said Peter yielding and paying for the same, to the said Robert, his heirs and assigns, certain rents, therein reserved, on the days and years therein appointed. The breach assigned was, that, after the death of the said Robert Adam, and after the said Peter Dow had conveyed the lands in question to the defendant, she failed to pay to the plaintiffs the rents which became due for the years ending on the 25th days of December, in the years 1804 and 1805. Issue being joined on the plea of covenants performed, the jury found for the plaintiff's, and assessed their damages to the sum of $1110 67 cents, whereof $800, the principal sum due, was to bear interest from the 1st day of April 1813, until paid, at five per centum per annum; " if the court should be of opin"ion that it was competent for the jury to allow interest on "the payments reserved under the indenture; there having "always been effects on the premises charged, liable to dis"tress, sufficient to have satisfied the said payments; and the "said payments having been demanded by the plaintiffs of "the defendant, and not having been satisfied. If the court "should be of opinion that, under, the above circumstances, it was not competent for the jury to allow interest on the "said payments reversed as aforesaid, they then assessed the "plaintiff's damages to eight hundred dollars." The Superior Court of law entered judgment for the $1110 67 cents, with interest as above mentioned; from which the defendant appealed. Saturday, January 27th, 1816, Judge ROANE pronounced the court's opinion, with an observation of his own subjoined, as follows:- 2. But if the jury state the circumstances in a special verdict, the court should disallow the interest, if under those circumstances, it ought not to be allowed." 3. Interest on rents in arrear ought not to be allowed, the circumstances being that there always were effects on the premises, liable to distress, sufficient to have satisfied the rents, which were not paid, though demanded by the landlord. See Cooke v. Wise; and Newton v. Wilson, 3 H. and M. 463–470. 1815. Dow V. Adam's administrators. "The court is of opinion, that although interest ought not DECEMBER, "to be given, as of course, in actions for the recovery of rent “in arrear, it may nevertheless be given under circumstances to "be judged of by the jury; and that, in case of a general ver"dict allowing interest, it shall be intended that sufficient cir"cumstances existed to justify the allowance thereof.-The "court is further of opinion that the circumstances stated to the "court in this case by the jury are not sufficient to justify the "verdict, so far as it allows interest; and that, therefore, the 66 appellee should only recover the principal sum found by the "jury. The Judgment is therefore to be reversed, and en"tered for the principal sum. I will take the liberty to add, '(speaking for myself only,) that, while I concur in the above judgment in every other point, I doubt, as at present advis"ed, whether the sufficiency of these circumstances, to justify a refusal of the interest, ought not to be left to the jury in ex❝clusion of the power of the court, under the spirit of the deci"sion of this court in the case of M'Call v. Turner.” (a) (a) 1 Call 133. Moseley against Jones. THE appellee William Jones, jr. brought an action of assump Argued January 29th, 1816. 1. In the acsit, if no consi tion of assump See sit against Arthur Moseley trustee for A. Jones, on a written agreement, dated the 13th of October 1807, " by which the deration for proImise be laid in " defendant promised to return to the plaintiff, on or before the the declaration, "1st of January 1811, 554 barrels of corn, with interest, also judgment ought to be arrested, "to pay him the sum of 117. 8s. 7d. with interest from the 14th of notwithstanding it be founded on "January 1806, on or before the 1st day of January 1811." a written agreeNo consideration for the promise was set forth in the declara- ment. Hall v. Smith, tion. The defendant pleaded non assumpsit, and, (after the Young & Hyde, 3 Munf. 550. verdict for the plaintiff for 651. 8s. 7d. damages,) moved in arrest of judgment, on the ground that the declaration was defective in not stating a sufficient consideration and promise; which motion being overruled by the court, and judgment rendered according to the verdict, he appealed to this court. The case was submitted by the appellant's counsel; no counsel appearing for the appellee. JANUARY, 1816. Moseley V. Jones. Monday, January 29th, 1816, Judge ROANE pronounced the court's opinion that the judgment was erroneous, there being no consideration laid in the declaration. Judgment reversed, and entered that the appellee take nothing, &c. Argued January 27th, 1816. rer to evidence, the other party to join. Thweatt & Hin Wash. 220. S. P. 66 Dunbar against Beale. 1. If the case IN an action for assumpsit, in the county court of Faube clear against the party ten quier, for goods sold and delivered, &c. (the declaration condering a demur- taining also a count upon an insimul computassent, and the plea the court may being non assumpsit,) the plaintiff proved, by a single witness, refuse to compel that some time ago, (the precise time he did not recollect, See" he met with the defendant, in the court house yard, on a court ton v. Finch, 1 day, and called upon him to execute his bond to the plaintiff, "for a large account, amounting to about 1261.; to which the 2. What evi" defendant replied, that he expected to receive some money, cient to establish "for land which he had sold, in about six weeks, when he an acknowledg" would go down to the plaintiff and settle the account with "him, and would pay it off. The witness believed that he "showed the defendant the account, (but of this he was not certain,) and that the defendant did not then examine the ac"count, (which was composed of a large number of items,) "but made no exceptions to it." dence is suffi ment of, and promise to pay, a debt by ac count. This being all the evidence exhibited to the jury, the defendant offered a demurrer to the evidence, in which the plaintiff refused to join; whereupon the defendant by his counsel moved the court to compel him to do so, which motion was overruled by the court, upon the ground that the "matter offered in evi"dence in manner aforesaid, was too plain." The defendant excepted to the court's opinion, and, a verdict being found and judgment rendered against him, appealed to the Superior Court of law. The judgment was there reversed, and the verdict set aside, with a direction that the plaintiff do join in the demurrer. By consent of parties, the cause was retained in that court for farther proceedings; and, the demurrer to the evidence being argued, judgment was pronounced in favour of the defendant, “that the plantiff take nothing," &c.; from which JANUARY, judgment, the plantiff appealed to this court. Monday, January 29th, 1816, Judge ROANE pronounced the court's opinion, that both the judgments of the Superior Court of law be reversed, and that of the county court affirmed. 1816. Dunbar V. Beale. Taylor against Ficklin & others. Argued, Tuesday, March 14, 1815. veyance of all own support du BENJAMIN FICKLIN, being employed by William Oden, debted by hond as his agent, to collect a debt from Beverly R. Waggoner, took executed a cona bill penal for the same, amounting to $257,30 cents payable his property in to himself. Oden assigned to Benjamin Botts, for valuable con- trust, for payment of his just sideration, "the debt due to him from Waggoner, or Ficklin, as debts in the first “the case might be, to secure which a bond was given by Wag- place; for his goner to Ficklin," authorizing Mr. Botts" to use his name at ring life in the "bis pleasure in the recovery;" ," "but he (the assignor) was not afterwards, for second; and, "to be answerable for the insolvency of the debtor." Botts after- the benefit of his wife, &c. He wards assigned the same bill penal to Thomas Taylor for valu- died, without able consideration. Waggoner, the debtor, after executing the any will or property acquired bill penal, made a deed of trust conveying all his property, real after the date of and personal, to John Gibson, sen. for payment of his debts in ance; and po the first place, for his own support during life in the second, person adinini and, afterwards for the benefit of his wife, &c.; which deed tate. It was held, that an aswas duly recorded. Before the date of that deed, Ficklin signee of the bought a tract of land of Waggoner, whereupon they entered bond was not re into articles of agreement, binding the purchaser to pay a remedy at law part of the purchase money when a deed should be made him, against the asand the balance in two annual payments. such convey stered on his es stricted to his signor, but, without bring. ing any action A bill was filed by Taylor, assignee as aforesaid, in the Su- at law, might perior Court of Chancery for the Richmond district, against obtain relief in equity by a de Gibson the trustee, Margaret Waggoner and her infant daugh- cree of a sale of the property ter his cestuy que trusts, and Ficklin Odin and Botts defendants; in the hands of setting forth the circumstances above mentioned, and also that the trustee. 2. In such case, if the fund in the possession of the trustee prove insufficient, the plaintiff in equity may recover the balance of his claim from a debtor of the obligor; and, in default of both these funds in whole or in part, he may proceed against the assignor. 3. And, it seems, that all the persons concerned being made parties, the court may do complete justice in one suit, and make a full end of the whole controversy. MARCH, 1815 Taylor V. Ficklin and others. Waggoner the debtor had died, without any will or estate ac- The defendants, by their several answers, admitted the allegations in the bill; except that nothing was said in Ficklin's answer concerning his being in possession of the land; which fact he neither admitted, nor denied, though charged expressly in the bill. He contended that, as no deed had ever been made him, he was not bound to pay any interst on the purchase money; while Gibson, in his answer, insisted that Ficklin having been in possession from the date of the contract, enjoying the profits without paying the purchase money, ought to be compelled to pay interest upon it. Chancellor TAYLOR, "not discerning how the plaintiff can "be interested in obtaining a deed for the defendant, Benjamin "Ficklin, for the land sold to him by Beverly R. Waggoner as ' appears by their agreement of the 17th of July 1807, among "the exhibits aforesaid, nor why the plaintiff should come into "this court, as the said Benjamin Botts is the only person "named in the transaction that is liable to him for the non payment of the assigned bond in the bill mentioned," there"fore adjudged, ordered and decreed, that the bill be dismissed "with costs. From this decree the plaintiff appealed. Wirt for the appellant. Williams for the appellee, Ficklin. |