1819.

Cropper

FEBRUARY, probably have been done; and also in this, that it does not find whether a possession existed, in the appellant, or those under whom he claims, of the premises in question; which possession, whatever may be the state of the title, might, in event, have been suflicient for the appellant in this action.

V.

Carlton and
Wife.

The Judgment is therefore reversed, with Costs, and the cause remanded, in order that a new trial may be had therein.

Decided, Feb. 10th, 1819.

1. An ac

battery com

Stewart against Crabbin's guardian.

AN action of assault and battery was brought in the tion for an Superior Court of New Kent County by Alexander H. assault and Crabbin guardian of William H. Crabbin an infant, against mitted upon Thomas E. Stewart. On the plea of not guilty, a general an infant, ought not to Verdict was found for $200 damages, and Judgment enbe brought tered, from which the defendant appealed to this Court. Stanard for the appellant.

in the name

of the guardian of such infant, but in

the name of

Wickham for the appellee.

BY THE COURT. It appearing from the Declaration, such infant that this action is brought by and for the Guardian, inby his or her

guardian or stead of being brought by the infant by his guardian, the next friend; Court is of opinion, that the judgment should be revers

and error in

this respect ed, and entered for the appellant.

before Jan.

1st, 1820,

was fatal, even after general verdict for the plaintiff. But see R. Code of 1819, a 128. § 103, Vol. 1st. p. 511-12.

Liggon against Fuqua and wife.

Decided, Feb. 10th, 1819.

1. Under

tion of the

cents of

died without issue, having

THOMAS LIGGON died, under twenty one years of age, without issue, having title to certain real estate derived the 5th seeby descent immmediately from John Ligon his father. Act of DesThe appellee Mary, wife of Giles Fuqua, was his pater- 1792, where nal grandmother; the appellant Liggon, his paternal an infant uncle; and these were his only relations in the paternal line, living at the time of his death. Fuqua and wife title to cer filed their Bill in the Superior Court of Chancery for the tate derived Richmond District, for partition of the said real estate; by descent immediately Mrs. Fuqua, as grandmother of the deceased, claiming from the fa ther; leaving to be co-heir and parcener with his Uncle. no relations

tain real es

cle, the

Chancellor TAYLOR was of opinion, that, under the in the paterprovision in the 9th section of the Act directing the nal line, but a grand-mocourse of descents, (Edn. of 1794, 1803 & '14, c. 93,) ther and un the lands in question should be divided into two moieties, grand-moone whereof should pass to the wife of the plaintiff and ther was not her heirs, and the other to the defendant and his heirs. inherit any He therefore decreed partition according to the prayer of part of such the Bill:-from which decree the defendant appealed.

entitled to

estate, but the paternal uncle was entitled to the whole.

The following was this Court's opinion, pronounced un by Judge ROANE.

But See As the land in the case before us was derived to the in- R. Code of fant from his father, and as it is admitted that he died 1813, c. 96, § 11, 12, vol. leaving one or more brothers or sisters of the half blood ist, p. 356.. on the part of the mother, the Court is of opinion that the case comes strictly within the 5th section of the act of descents, Rev. Code of 1794, p. 168. This case then is withdrawn from the general operation of the Act, not only for the purpose of excluding the half brothers and sisters, but also for that of shewing who is to take. In this case, the brother of the father (the appellant,) is to take in exclusion of the paternal Grandmother (the appellee) who is wholly omitted to be mentioned in the section. It was entirely as competent to the Legislature to cut her out in this case, by omitting to mention her, as to exclude the half blood. In the case of Templeman v. Steptoe, all the judges are to be considered as deciding

1819.

Liggon

v.

PEBRUARY, against the Grandmother; the majority, by sustaining the claim of the Uncle, on the ground that he was named in the section, which she is not; and the dissenting Judge, by deciding against the stronger pretensions of the Uncle; because he supposed the implication was too weak to bear out even his claim. He therefore more than decided against the Grandmother, by negativing the pretensions of the Uncle.

Fuqua and

Wife.

On the ground therefore of this unanimous opinion of the Court against the grand mother, as well as of our own construction of the Act, we are of opinion to reverse the decree and dismiss the Bill.

Decided

February 13, Cosby's executors against Bell's administra

1819.

to be dis

trix.

1. Upon a A scire facias was issued from the Clerk's office of scire facias to revive a Powhatan County Court, on the 26th day of February judgment, in 1813, in favour of Bell's administratrix against Cosby's debt, for a penal sum, executors, to revive a Judgment, rendered July 17th 1783, against Cosby in his life time, for the sum of 1651. debt, and 182 lbs. tobacco and $2,50 cents costs; to be if the defen- discharged by the payment of 821. 10. 0., with interest dant confess at the rate of five per centum per annum from the 21st judgment

charged by principal

and interest;

according to of March 1783, until paid, and the costs aforesaid.

the scire fa

cias, the

not entitled

to a writ of sue.

The defendants pleaded, "payment by the testator," plaintiff is and "no such record," on which the plaintiff joined isWhen the cause was called for trial, the defendants, enquiry of by permission of the Court, waived the said pleas, and damages, to offered to confess judgment according to the scire facias; than the pen whereupon the plaintiff moved the Court to award her a

recover more

al sum; (the

principal

and interest accruing by lapse of time, amounting to more;) but must take execution upon the original judgment with the addition, only, of the costs upon the scire facias (1)

See Tidď's Pr. 798; and 3 Burr. 1791.

(1) Note. But in debt on a judgment, damages are recoverable, see Tidd's Pr, 798.

1819.

Writ of enquiry of damages, (2) and a trial by Jury in FEBRUARY, the cause; but the Court overruled the said motion, and refused to grant such writ and trial; to which opinion the Cosby's exe. plaintiff excepted.

cutors

V.

istratrix.

Judgment was then entered, by confession, that the Bell's admin plaintiff should have execution, &c. according to the scire facias. Upon an appeal, the Superior Court of law reversed it, and ordered the cause to be sent back, with instructions to the County Court to allow the appellant a writ of enquiry of damages, and a trial by Jury.

From this Judgment of reversal, the defendants appealed to the Court of appeals, (where, the cause being submitted without argument,) it was determined that the Judgment of the Superior Court be reversed, and that of the County Court affirmed.

(2) Note. More than twenty years having elapsed since the judg ment; and therefore the principal and interest amounting to more than the penal sum; the plaintiff wished to get the additional sum by way of damages.

Chamberlaine and others against Marsh's administrator.

Decided, Feb 13th, 1819.

1. A con

tract for sale

of land, res

CURTIS KENDALL, being entitled to 4666 2-3 acres of military land, as an officer in the late Virginia line, exe cuted a conveyance to Samuel Marsh, dated on the 18th cinded in equity, on of March, 1797, conveying to him all his right, title and the ground interest in 4666 2-3 acres, located and surveyed to him that both parties were the said Kendall, under his military land warrant, No. mistaken, as 2926, and situated over the River Ohio, on Paint Creek, tion, and oth in five different entries; four for 1000 acres each, and one er circumfor 666 2-3 acres; covenanting that he had not sold or conveyed to any other person, and authorising him to demand all plats and certificates of survey, &c. The consideration expressed in the deed was $1500.

On the 18th of April following, Samuel Marsh, in consideration of $1000, to be paid in thirty days, and of

to the situa

stances ma terially affecting the value of the land,

1818.

others

V.

ministrator.

DECEMBER, two sums of $1750 each, payable in January, 1798 and '99, agreed to convey and assign to Lyne Shackelford all Chamber his (Marsh's) right and title to the military lands grantlaine and ed Kendall, under the deed of conveyance from Kendall to Marsh, of the 18th of March, and all the right of KenMarsh's ad- dall to the land; Marsh agreeing to procure from Kendall a Power of Attorney authorising Col. Richard C. Anderson, of Kentucky, to assign and transfer to Shackelford the plats and certificates of survey of the land, and to execute a deed to convey the land to Shackelford; the deed to be delivered when the first payment was made and security given for the balance.

On the 13th of May, Kendall executed the power of attorney to Anderson to transfer to Shackelford the plats and certificates of survey of the land, and on the 22d of May, 1797, Marsh executed a deed, bargaining, selling, &c. "all the right, title and interest,

which he the said Samnel has unto the Military Bounty "Land granted to Curtis Kendall, for his service as an of"ficer in the Virginia line of the State Continental Army. "containing 4666 2-3 acres, located and surveyed to him "the said Curtis, under his military land warrant, No. "2926, and situated over the river Ohio, on Paint Creek,

in five different entries; four for one thousand acres each, "and one for 666 2-3 acres, which said lands were grant"ed and conveyed unto the said Samuel Marsh, by deed from "said Kendall, bearing date the 18th day of March last, "with all the right, title and interest, which he, the said "Samuel Marsh, has under the deed aforesaid," with all the title of Kendall, with authority to receive all papers, plats, and surveys, &c. from the surveyor, &c.

The first payment being made, and a deed of trust given to secure the balance, Kendall's power of attorney and Marsh's deed were delivered to Shackelford.

William Chamberlaine was jointly interested with Shackelford in the purchase, and Thomas Newton and William Wilson with Marsh, although their names did not appear in the original contract or deed. (1)

(1) Note. All the parties concerned resided in Virginia, at a great distance from the lands in question.