December. 1826. to turn this power of sale, given for the safety of the Company, to their ruin? If the stock had sold for a single cent, Grays there can be no doubt that this motion would have been Tampike sustained for the whole sum required, even for more than Company is now required; for the sum given, (a cent,) would not V. have paid the costs of sale, and the motion would have been for the sum required, with the addition of such costs. In such case, then, the stock-holder would have lost his stock entirely, and been subject, by motion, for the sum demanded; whereas, in the case before us, he is left in possession of his stock, and is only held to pay the sum required, which was certainly the meaning of the law. For it seems clear, that the intention was to give the motion to supply all deficiencies, which could not be answered by a sale of the stock. The other Judges concurred, and the judgment was affirmed. Court of Appeals of Virginia. 1L 293 7L 700 10g 426 4585 13g 678 88 265 585 NALLE'S Representatives, &c. v. FENWICK, Surviv- 1826. ing partner, &c. The question of citizenship may be decided, after a great lapse of time, by facts and circumstances leading to a presumption that a foreigner had actually become a citizen. The probate of a will cannot be called in question, after the lapse of seven years, and no person appearing within that time to contest it. It seems, that a will of lands, where two of the three attesting witnesses reside out of the State, and cannot be procured by any legal means, may be proved by the remaining witness, he proving the attestation of the absent witnesses. The mode pointed out in the act, "prescribing the method of proving certain wills," 12 Hen. St. at Large, 502, gives an additional mode of proceeding, and does not deprive a party of any which he might have pursued before. Where a naked power is given by law to an officer or other person, that power must be strictly pursued, especially if such proceeding involve a forfeiture, and it devolves on him who claims a right under the exercise of such power, to shew that it was, in all respects, exactly pursued. Therefore, where land is sold by a sheriff for non-payment of taxes, it is incumbent on the purchaser to shew that all the steps have been regularly taken, which the law requires in such cases. It seems that although the act of 1782 does not require four weeks advertisement in the papers, before land can be sold for non-payment of taxes, yet the act of 1781, is not repealed in this respect, which requires such a proceeding. The parties that are necessary in a suit in equity, to remove the obstruction raised by a sheriff's sale for non-payment of taxes. This was an appeal from the Richmond Chancery Court. The suit was brought by William Fenwick, surviving Partner of Heathcote and Fenwick, against the representatives of Edward Rice, Joseph Strother and Francis Nalle. A complete view is given of the case in the opinion which follows, and of the points made in argument. Stanard, for the appellants. W. Hay, for the appellee. December 16. Judge CARR delivered his opinion. Doctor Savage, a resident of North Carolina, held a tract of 1500 acres of land in Culpeper county, by deed from VOL. IV. 74 December. 1826. the proprietor of the Northern Neck, bearing date in 1779. December. In 1784, Savage, by will, devised this land to Edward Nalle Rice, then also a resident of North Carolina. In 1787, Fenwick 900 acres of this land were sold by the deputy sheriff of Culpeper, J. Strother, for non-payment of taxes due thereon, and bought by himself. He afterwards sold to Nalle, a purchaser with notice of the title which Strother held. After the death of Savage, (but at what particular period does not appear,) Edward Rice became an inhabitant of Virginia; and (himself and his brother Francis, being indebted by bond to Heathcote and Fenwick, 9437. 6s. 1d.) he entered into a contract to sell them his Culpeper land, according to the valuation of certain persons named. This contract was never executed. Heathcote and Fenwick sued the Rices, and obtained judgment. Edward died, without heirs who could inherit, and no will (if he left one) has ever been proved. Fenwick, surviving partner, filed this bill for a sale of the Culpeper land, under the agreement of E. Rice, or the lien of his judgment. Nalle, who bought of the sheriff, was made a party. He answered, died subsequently, and those who claim under him are before the Court upon answers. The first point for discussion is, whether Rice had a good title; for if not, Fenwick can have no claim to a sale of the land. This point divides itself into two questions. 1. Had Rice a capacity to take and hold land? 2. Was the will of Suvage so proved as to pass land? If these two questions be settled affirmatively, then a third will be, was the sale of the land for non-payment of taxes, a valid one? 1. As to the first, it is asserted, that Rice could not hold land, because he was an alien. That he was an Irishman by birth, is agreed on all hands. This throws on the plaintiff the burthen of proof. He must shew, either an actual qualification of Rice as a citizen; or such facts and circumstances, as, after this length of time, will authorise us to presume, that such qualification did take place. No positive proof on the subject is furnished by the record; but, December. Nalle V. of presumptive evidence there is no stint. Seven witness- 1826. es (and some of them I should take to be very intelligent men,) express their confident belief, that Rice had taken the oaths required by North Carolina, to make him a citi- Fenwick zen of that State; and they relate facts, which strongly corroborate their opinion. They say he was an active partizan at elections, and voted both in North Carolina, and after he removed to this State: that such was the temper of the times, and the watchful jealousy of Americans towards foreigners, (as he was known to be,) that it would have been impossible for an alien to have acted as he did, with impunity; and indeed, that no such would have been permitted to remain in the country. Saterfield says, he knew him as an inhabitant of Edenton (North Carolina,) in 1779, if not earlier, and is well satisfied that he could not have remained, without taking the oath of allegiance to the State. Collins also knew him in 1779, and gives the same opinion as to the temper of the times. Ellison authenticates a deed from Savage to Rice for land, in 1783; says they were men of too much intelligence not to know that an alien could not hold land; and that if they had not known, the father of the deponent (who witnessed the deed) certainly did know it, and would have set them right. After his removal to Virginia, several witnesses speak of his activity and zeal at elections; and two, Cowper and Lugg, say, that he was once a candidate to represent the county of Princess Anne in the Legislature. The correspondence between Rice and Savage, beginning in April 1779, shews him to have been then in the employment of Savage, who, (from his letters,) I consider to have been a shrewd, sensible man of business. It is clear from these letters, that Rice possessed his confidence in a high degree. There are articles of co-partnery between them, which shew that they went into trade on joint stock. If all this mass of evidence, after the lapse of 45 years, be not sufficient to authorise the conclusion that Rice was a citizen, what less than point blank proof will do? I confess I feel as well December. Nalle V. 1826. satisfied of the fact, as if I had before me the certificate, in due form, of the magistrate who administered the oaths under the act of 1777, spoken of by Ellison. Such a certificate might be forged, but it is impossible to doubt the truth of the facts stated by these witnesses; nor can I conceive how they could have happened, unless Rice had been a citizen. I conclude that he was a citizen. Fenwick 2. Was the will of Savage so proved as to pass lands? In England, the decision of the Ecclesiastical Court upon the probate of a will of personals, was held conclusive evidence that it was the testament of the party, to the full extent to which that Court had admitted it to probate. Thus in North v. Wells, Swinb. 412, citing 1 Lev. 235, the plaintiff gave in evidence probate of a will, to prove an executrix; and the defendant would have proved that the will was forged; but he was not admitted to such proof, because it was against the seal of the ordinary, in a matter proper for his jurisdiction. In Chichester v. Philips, Sir Thomas Raymond, 404, it was held, that probate granted by the Ecclesiastical Court, is not traversable, but conclusive evidence of the will. With us, Courts of probate have equal jurisdiction over a testament of personals and a will of lands. By the Statute of 1785, it is enacted, "that when any will shall be exhibited to be proved, the Court having jurisdiction, may proceed immediately to receive probate. If any person interested shall, within seven years, appear, and by his bill contest the validity of the will, an issue shall be made up, whether the writing be the will of the testator, &c.; but no such party appearing within that time, the probate shall be forever binding." On the 19th of June, 1789, the will in the case before us was admitted by the General Court to full probate, "as and for the last will and testament of the said William Savage." This suit was not commenced, until the 2d of December, 1799; upwards of ten years after the probate. Can we now call in question the probate of this will, or |