February 1st, 1816. Judge ROANE pronounced the court's opinion.

The court is of opinion that the decree of the chancellor, dismissing the bill of the appellant, is erroneous, and should be reversed with costs; and this court proceeding, &c. it is farther decreed and ordered, that the appellee, John Gibson, pay to the appellant, out of the trust subject in his hands, in the proceedings mentioned, the principal sum and interest claimed by the bill, with the costs in the Court of Chancery; and that the said trustee shall, if necessary, sell as much thereof, on reasonable notice, as may be sufficient to satisfy the same. The court is also of opinion, and hereby decrees, that, in default of the other part of the said trust fund, the appellant may, by causing the appellees to interplead, or otherwise, proceed against the appellee Ficklin, to recover so much of his debt as may be unpaid from the trust fund aforesaid; and, in default of both these funds, either in the whole or in part, that he shall have like liberty to proceed against the representatives of Benjamin Botts. And the cause is remanded to the Court of Chancery to be proceeded in pursuant to the principles of this decree.

MARCH,

1815.

Taylor

V.

Ficklin and others.

Buster against Ruffner.

Decided, Feb, 2d, 1816.

tion of assump The sit in the Supe

rior Court of a

to state that the

THE appellee brought an action of assumpsit against the 1. In an acappellant in the Supreme Court of Kanawha county. declaration began with the words, "Virginia, Mason county, county, the de "to wit, Joseph Ruffner complains of Claudius Buster, in cus- claration's laying the venue in "tody, &c. for that whereas the said Claudius, to wit, on the a different coun"1st day of January 1812, at the county aforesaid, was in-, and omitting "debted to the said Joseph, &c."; in the usual form; containing cause of action three counts, viz. one, in general terms, for money and received by the defendant, to and for the use of the plain- the court, is not tiff; another, more specially, for money had and received, in in arrest of judg like manner, for the sale of a negro man slave, the property of Turberville v. the plaintiff; and another upon a quantum valebat for the price Long 3 H. &

had

arose within the jurisdiction of

error sufficient

ment.

See

M. 309
2. A general

verdict in assumpsit, assessing entire damages, on several counts, none of which are defective, is not See Tidd's Pr. 801-2.-Lloyd v. Morris, Willes, 443, and Rev'd. Code, 1st vol. ch. 76, sec, 38, p. 112.

erroneous.

1816.

Buster

v.

Ruffoer.

FEBRUARY, of a negro man slave sold and delivered by the plantiff to the defendant. On the plea of non assumpsit, a general verdict was found for the plantiff, entire damages being assessed: whereupon, the defendant filed errors in arrest of judgment; to wit, "that the declaration is filed as in the county of Ma"son, and there is no jurisdiction given to this court in said "declaration; that there are two counts, and a verdict re"turned for three hundred dollars, without designating on "which of the counts the jury found." The Superior Court entered judgment for the plaintiff according to the verdict; which judgment was affirmed by the Court of Appeals, on the 2d of February, 1816.

February 6, 1816.

1. Although,

inthe case of an

creditors and

Thomas against Soper.

IN an action of detinue for sundry slaves, the plaintiff absolute deed of John Soper offered in evidence, in support of the issue joined slaves, where the grantor reon his part, an absolute deed, duly recorded, from James mains in posses- Thomas, sen. (of whose estate the defendant Joel Thomas was sion after the execution and administrator,) to himself, of the slaves in question: whererecording of the same, such deed upon, the defendant offered to impeach the validity of the said is to be regarded deed, as fraudulent and without good or valuable consideration, as fraudulent and void as to by testimony, first that James Thomas the vendor held the possession of all the negroes in the declaration mentioned from subsequent purchasers, yet the the time of executing the said deed to that of his death; sesame is obligatory, and cannot condly, that Joel Thomas the defendant, qualified as one of the be impeached, administrators of the said James and that the negroes in the as between the grantor and declaration mentioned, came to his possession as administrator of the said James Thomas; after which the defendant offered tatives. See to prove that executions against the estate of the said James Deneale, 2 Thomas had been returned, by the sheriff, "that there were no Munf. 341; goods and chattels of the intestate to be found in his bailiibid. 543.-Ro."wick;" to the admission of which parol proof, the plantiff, bertson v. Ewell, 3 Munf. 1. by his counsel objected, and the court sustained the objection. The defendant then moved the court to instruct the jury that the said deed was fraudulent as aforesaid; which instruction the court refused to give, and instructed the jury that, "although “in the case of an absolute deed for negroes, where the vendor

grantee and their represen

Alexander v.

Gay v. Moseley,

1816.

Thomas

V.

Soper.

"remains in possession after the execution and recording the FEBRUARY, "same, such deed, as to creditors and subsequent purchasers, is "to be regarded as fraudulent and void; yet, as between the "vendor and vendee, and their immediate representatives, it "was obligatory, and could not be impeached by the testimo"ny offered by the defendant as administrator of the grantor, "which defendant was not himself a creditor." To this opinion of the court, a bill of exceptions was filed; and, a verdict being found, and judgment rendered for the plaintiff, the defendant appealed to this court, which, on the 6th of February, 1816, affirmed the judgment.

Sims's administrator against Lewis's executor February 7th,

and others.

1816.

UPON an appeal from a decree of the Superior Court of 1. A purchas Chancery for the Richmond District.

in the first instance ;--if the vendor has con

er of land, suing for breach of a The bill was filed in the late High Court of Chancery, by contract to make a good title,may Jesse Sims against John Lewis, acting executor of the last with propriety will and testament of Warner Lewis the younger, deceased, come into a court of equity the said John Lewis and Wilson C. Nicholas trustees in a for pecuniary compensation, deed executed by the said Warner in his life time, and instead of proCourtney Lewis his widow, and Courtney Lewis the younger ceeding at law and Elizabeth Lewis his children; the said deed of trust being executed for the purpose of paying his lawful debts, and, veyed away his after paying the same, of making provision for the said widow property in and children. The object of the bill was to obtain satisfaction for an al difficulty in ob taining satisfacleged failure on the part of the said Warner Lewis to make tion of his judga good title to certain lands, situate on the north west of the ment when reriver Ohio, which he sold to a certain John B. Armistead, of vendor, or his lawful represenwhom the plaintiff purchased, and afterwards obtained from tative, together the said Warner Lewis a bond to make him a title.-The with the trustees and cestuys que plaintiff prayed a decree for the full value of the lands with trusts, being interest ;-for a sale of the trust property to satisfy the same, to the bill. with the costs of this suit;-and for such other and further 2. In such

trust, whereby there might be a

covered;-the

made defendants

case, the proceeding in equi

ty is proper, also because it avoids circuity of action, and the court has the power of directing an issue to try by a jury the justice of the plaintiff's claim.

3. Where a plaintiff in equity sues to take advantage of a contract found to be fraudulent, he is not to be sustained even to recover back money paid on such contract, but ought to be left to whatever remedy he may have at law.

FEBRUARY, relief as should be consistent with equity, and the nature of his case might require.

1816.

Sims's admr.

V.

tor and others.

The defendant John Lewis, by his answer, insisted that the contract originally made between John B. Armistead and Lewis's execu- Warner Lewis was obtained by fraud on the part of the former, in taking advantage of the latter, when intoxicated and inca, pable of business; and that said Warner was, in like manner, fraudulently and deceitfully induced by the said John B. Armistead to execute the title bond mentioned in the bill.-He therefore prayed, that all bonds, deeds and convenants, relating to the premises, be set aside.

Sundry depositions were taken on both sides, the general tendency of which was to support the allegations in the

answer.

On the 14th of March, 1806, the cause came on to be heard, when Chancellor WYTHE directed, “that a jury be empan"nelled to inquire and say, not what is the value of the land "in the bill mentioned, to which value the plaintiff supposeth "himself entitled, but what damage the plaintiff hath sustained "by breach of the condition of the bond, or obligation, of "Warner Lewis among the exhibits; and whether both the "deed for the land in controversy to John B. Armistead, and "the bond given for the conveyance to Jesse Sims by Warner "Lewis, or either of them, were not obtained by fraud, or by "an improper advantage taken of the situation of the said "Warner Lewis; and that the said jury's inquisition and ver"dict be certified, &c."

66

In obedience to this order a verdict was found, and certified to the Court of Chancery, "that the deed (if there ever was one) to J. B. Armistead, as well as the bond of conveyance to Jesse Sims, were obtained by taking an improper ad"vantage of the said Warner Lewis's situation.”

Chancellor TAYLOR, afterwards, "being of opinion that the "deed of trust in the bill mentioned, can in no manner af"fect the plaintiff's remedy at law upon the bond of the 4th "of August, 1797," dismissed the bill," without prejudice to "any remedy at law"--from which decree the plaintiff appealed.

February 7th, 1816, Judge ROANE pronounced the court's opinion.

1816.

Sims's admr.

V.

Lewis's execu.

tor and others.

This court is of opinion that the original contract of sale FEBRUARY, by Warner Lewis to J. B. Armistead of the land in controversy, as well as the bond given by the former to Jesse Sims, is impeached of fraud by the answer of the appellee John Lewis, and put in issue by the parties;—that the issue directed in this case extends as well to the one transaction as to the other; and that the finding of the jury under that issue, taken in connexion with the pleadings and facts proved in the cause, is sufficient to justify a decree setting aside both contracts; more especially, as that verdict is supported by the evidence in the cause, and may have been founded, in part, on evidence not spread upon the record.

The court is farther of opinion, that the appellant's intestate Sims came properly into a Court of Equity, instead of proceeding at law, in the first instance, for damages-on the ground that Warner Lewis had conveyed away his property in trust, whereby there might be a difficulty in obtaining satisfaction of his judgment when recovered; and that there is no objection to the proceeding, as he included the executor of the said Warner, as a defendant, who was competent to contest the justice of the claim; and that this proceeding, while it avoids a circuity of action, obviates the objection, which strongly exists, in favour of the preference of jury trial, in consequence of the power of the Court of Chancery to have the justice of the debt tried by an issue, as was done in the case before us.

The court is farther of opinion that, as both the transactions aforesaid have been found to have been made under circumstances of imposition sufficient to set aside and vacate the same in a Court of Equity, the appellant ought not, when coming into that court as a plaintiff, to be sustained even to recover back money paid under either of the said contracts; but that, if he has any right thereto, he ought to be left at law to recover the same.

On these grounds the decree is affirmed.