MARCH, 1817. Birchett and others V. Bolling and not to have become hostile 'till 1810. Suppose this were the true state of facts. Shall a specific performance be decreed, in behalf of those, who were opposed to it during a lapse of almost three years, against those, who were anxious at first for a prompt and immediate execution of the plan. (a) In truth, only the plaintiff Bolling and the defendant Harwood are now desirous of a specific performance of the rest, (a) Hays v. Casome say only that they are willing to perform, though quite cases 127. indifferent about it; and six others say they are averse to going on with the scheme. Now, surely, in a partnership like this, a majority might dissolve the company. Shall it be continued at the instance of a minority of two? The refractory partners broke off before any material part of the work had been done; so that little or no injury could have resulted to the rest from the abandonment of the plan by them. They broke off before Bolling had executed the Deed; as is proved by the plaintiff's own witness Hawkes; they broke off before the only efficient general meeting was held, that of April 1810; in short, before any thing had been done, except the removal of an old house by Bolling. In every view, therefore, specific performance was not the proper relief; either on general principles, or on the particular circumstances of the case. The remedy was plain; to decree compensation to those of the consenting partners, who had sustained injury by the refusal of the rest to abide by their agreement: and the mode of ascertaining the compensation was equally obvious, an issue of quantum dammificatus. Bolling had suffered an injury from the removal of his house, and the loss of the rents. The difference between the value of the house as it stood, and the va lue of the materials, after it was taken down, added to the rents he lost, was the precise amount of the damage, he sustained; and nothing could be more easily adjusted. As to the others, it is difficult to see how they suffered any injury, which could not be redressed by a release to the company of the shares of the refractory partners. March 3d, 1817, Judge ROANE pronounced the Court's opinion, as follows: ryll, Bro. Parl. MARCH, 1817. others V. Bolling. "The Court is of opinion that the first Decree is correct, which provides that the agreement among the proceedings Birchett and should be carried into specific execution, and in effect allows that that execution may be perfected, on application to the Court, from time to time, by any of the parties interested, by means of an account or accounts, the sale of shares, or otherwise; as to all which, the Decree is considered as only interlocu tory. But the Court is of opinion, that the Decree upon the attachment is erroneous, as it subjects the Appellants to that process, for refusing obedience to a Decree, which as yet remains general and uncertain, and the extent of which, as it relates to them, they had no adequate means to ascertain. The last Decree is therefore reversed with costs; and the cause is to be sent back, to be finally proceeded in pursuant to the principles of the first Decree, which are approved, as above, by this Court. Decided, March 5th, 1818. 1. The assignee of a bond may recover of the Harrison's administrator against Raines's ON a trial of an action of Assumpsit in the Petersburg District Court, in behalf of the administratrix of the assignee of assignor, a bond, against the assignor, on the ground that the assignee after suing the obligor, and ob had sued the obligor, obtained judgment, and issued execution, taining a judg on which there was a return of "no effects;" the plaintiff on ment and exe return of nulla bona; notwith cution with a her part offered in evidence a record of the action so prosecuted by Allen Raines, her intestate, in his lifetime; whereupon, standing his at the counsel for the defendant moved the Court to instruct the torney directed that appearance Jury, that the plaintiff, in that action, had not used due dili bail be not re *See Good H. & M. 105. quired of the gence to recover the claim from the obligor; “in this, that he obligor. “did not hold him to appearance bail upon the said writ, which all v. Stuart, 2 "he ought to have done in order to maintain the present action;(1) "and that the plaintiff, not having so held the said obligor "to bail on the said action, therefore could not now main"tain this action against the assignor of the said bond." Court, being divided in opinion, refused to give any such instruction to the Jury; whereupon the defendant filed a Bill of Exceptions. The (1) Note. The plaintiff's attorney endorsed on the Writ, that " no bail nas "required of the defendant. Verdict and Judgment for the plaintiff; from which the defendant appealed. The cause was submitted without argument and, on the 5th of March, 1817, the President pronounced the Court's opinion, that the judgment be affirmed. Allen against Parham and others. Decided March 6th, 1817. 1. W. A. by his last Will de THE controversy in this case arose upon the construction of the Wills of Richmond Allen and William Allen of New-vised that "in Kent County. case he should die before his descend to him vided between It appeared that Richmond Allen and William Allen, being brother R. A., all his estate, brothers, each made his Will in the month of July, 1807. both real and Richmond Allen, by his Will, directed that, if he should die personal should before his brother William Allen, all his estate, both real and and his heirs for ever; but, in case personal, should descend to him and his heirs forever, one negro his said brother man Tom excepted; but, in case his said brother William should should die without a lanful heir, die without a lawful heir, then it was his will that it should be it should then equally divided between his brother Wilson Allen, and his be equally dinephew Samuel A. Apperson, to them and their heirs forever: his brother W. he also gave the negro man Tom to Wilson Allen and his heirs. 4., and his ne phew S. 4, to Wilson Allen, by his Will, in like manner, devised, that, in case them and their he should die before his brother Richmond Allen, all his estate, R. A aving real and personal, should decend to him and his heirs forever; time of the devione negro man Sam excepted; and in case his brother Rich sor, and without issue, the limimond should die without a lawful heir, then it was his will that tation over it should descend to his brother Wilson Allen, and his nephew could not take effect; but the Samuel A. Apperson, to them and their heirs forever: he also estate descended to the heirs gegave the negro man Sam to Wilson Allen and his heirs. neral of the de beirs forever." died in the life Richmond Allen died without issue, and in the life-time of Wil- visor. liam Allen. After the death of the latter, (who likewise died 2. In such without issue.) Wilson Allen and Samuel A. Apperson took posses- case, if the desion of his estate, (including what had belonged to Richmond vived the deviAllen,) claiming the whole as their absolute property. visee had sur sor, he would have taken an estate tail, which, by the Act of Assembly, would have been turned into a fee simple; and the limitation over could not have taken effect; ** See Carter v. Tyler, 1 Call 165; Williumson v. Ledbetter, 2 Munf. 521; and Eldridge v. Fisher, 1 H. & M. 559. MARCH, 1817. Allen V. Parham and others. Henry Parham and Peggy his wife, Richard Allen, and Elizabeth R. Allen, the other brothers and sisters of the Testators, filed their Bill, in the Superior Court of Chancery for the Williamsburg District, claiming an equal division of the estates in question, on the ground that, under the Will of Richmond, William Allen took an estate tail, which, by operation of law, was converted into a fee simple; and that, consequently, the devise over to Wilson Allen, and Samuel A. Apperson was void; that the bequest in William's Will was lapsed by the death of Richmond in his life-time; that the condition having failed, the bequest likewise failed; that, even if Richmond had survived William, his estate would have been an entail; and that Wilson Allen and Samuel A. Apperson could only take as heirs general. The defendants, presuming that the Will of William Allen was the only one necessary to be looked into, contended that, as Richmond died in the life-time of William, a fact known to William, who possessed himself as devisee and legatee of Richmond's estate, the Court should read his Will, as if nothing were said of Richmond, and consider the bequests as immediate to the defendants, which they believed to be the plain intention of the Testator, who had evinced, most clearly, that they were, next to Richmond, the objects of his bounty: but, if that were not correct, yet, that a devise to one, with a limitation over to another, (as in this case,) of both real and personal estate in the same clause, if the first devisee died without heir in the life-time of the Testator, would be a good devise over. Chancellor NELSON decreed a division of the lands, of which Richmond and William Allen died seized, among the plaintiffs and defendants, and also an account to be taken, of the rents and profits of the lands and slaves, and reported to the Court; from which Decree Wilson Allen appealed. Wickham for the Appellant. Admitting the devise by William Allen in this case, to be of an estate tail, it never took ef fect; for Richmond Allen, the devisee, died in the Testator's life-time. The limitation over to Wilson Allen and Apperson was therefore good as an executory devise; though bad as a contingent remainder, the particular estate having never taken 1817. effect. (1) In such case the remainder man will take, as if MARCH, no devise in tail had ever existed. The Will operates as if the devise to him were immediate. Wirt contra. If the mainder must fail also. superstructure. devise of the estate tail fails, the re- March 6th, 1817, Judge ROANE pronounced the following opinion of this Court. The Court perceives no error in the principles of the Decree but there is no division of the negroes decreed, although an account of their hires is. The Court, considering the Decree, however, as interlocutory, and that a division may be hereafter decreed, does not think proper to reverse the Decree for this, but affirms it. (1) Note by the Reporter. In 6 Cruise's Digest p. 513,-14, and in Fearne on Ex. Dev. 492, the doctrine is laid down, "that, whenever a contingent limi“tation is preceded by a freehold capable of supporting it, it is construed a con"tingent remainder, and not an executory devise; but it is possible, that the "freehold so limited may, by a subsequent accident, become incapable of ever "taking effect at all; as, by the death of the first devisee in the Testator's life“time; in which case, the subsequent limitation, if the contingency has not then "happened, will be in the same condition at the Testator's death, (that is, at the "time when the Will is to take effect,) as if it had been limited without any pre"ceding freehold. Now, in this case, it has been held, that, where such subsequent limitation could not vest at the Testator's death, it should enure as an executory "devise rather than fail for want of that preceding freehold, which had "never taken effect." And such was the decision in Hopkins v. Hopkins, But it may be Cases Temp. Talbot, 44; 1 Atk. 581; 1 Vezey şen'r. 269. remarked, that, in this case, upon the death, without issue, of Richmond Allen, the devisee in tail, the contingency, upon which the limitation over was intended to take effect, actually happened, if it ever did; yet, since, at that time, the remainder men could not take, (because the devisor was then living,) they could not take at all; for no time was appointed by the Will, for them to take, but that of the death of Richmond Allen, without issue. It seems, however, that the contingency never happened at all; for, by the express words of the Will, the devise to Richmond Allen was only in case he survived the devisor; and the limitation over must, of course, have been intended to operate in the event of his dying, thereafter, that is, after taking the estate, without issue. The event of his dying, in the life-time of the Testator, without issue, was not provided for in the Will. Allen Parham and others. |