1810. a suit brought by Nathaniel Chapman against George Chap- OCTOBER, man, sen. his uncle, and revived, on the death of the said Nathaniel, by a bill of revivor on behalf of George Chapman, Chapmans jun. and John Chapman, his brothers and co-heirs. The original bill stated that Nathaniel Chapman, grandfather of the plaintiff, and a second Nuthaniel Chapman, heir at law of that grandfather, had successively died seised and possessed of a very considerable real and personal estate; and that, upon the death of the latter, the same descended to Pearson Chapman, whose eldest son and heir at law the plaintiff was that Constant Chapman, widow of the elder Nathaniel, (whose children were the second Nathaniel, the said Pearson, George the defendant, and sundry daughters,) prevailed on the said Pearson to convey to the said defendant, by three deeds, a tract of land in Fairfax County, some lots in the town of Alexandria, and a tract of land, lying in Fauquier County, called the Pig-Nut tract; by promising to secure to him, either by will or deed, as much, or nearly as much, of the estate which then was at her disposal, as she should leave to the said defendant; that these deeds expressed the "consideration of natural love and affection, and of ten shillings current money, paid to the said Pearson by the said George," but the actual, or principal consideration was the promise aforesaid; that two of the three deeds were acknowledged by the grantor, in open Court, in the year 1766, and duly recorded, but the third (which was for the Pig-Nut tract) was acknowledged in the presence of two witnesses only; that, having seen his mother's will, giving nearly all her estate to her son George, the defendant, the said Pearson obtained that deed, and suppressed it; that the defendant had sued the said Pearson in the County Court of Fauquier, to compel a renewal of that deed; and that suit abating by the death of Pearson, brought another in the High Court of Chancery against George Chapman, jun. his devisee; that, in the year 1793, George Chapman, jun. claiming as devisee, commenced an action of ejectment, for the said Pig-Nut tract of land, in the District Court V Chapman. 1810. Chapmans OCTOBER, of Dumfries, against the said George Chapman, sen. who there. upon filed an amended bill, in the High Court of Chancery, praying an injunction to stay proceedings on the ejectment; Chapman. which was granted upon the condition of confessing a judgment at law, and relying upon his equitable title alone; (in which bill of injunction he alleged that the number of witnesses to the deed for the said Pig-Nut tract, not being sufficient to have it admitted to record, it was returned to Constant Chapman to get it more fully authenticated, and was, for that purpose, by her delivered to her son Pearson the grantor ; under a solemn assurance from him that he would acknowledge it in the presence of a third witness, and return it to her; instead of doing which, he had destroyed it, on the pretext that he had found a will, executed by her, wherein she had violated her promise, made him when he executed those deeds; having left him no part of her estate, or, at most, a very inconsiderable legacy ;) that the said George Chapman, jun. the devisee as aforesaid, answered, and stated the said Pearson's motive for executing the deed which he had afterwards suppressed; that, after taking much testimony on both sides, the Court directed an issue to be tried to ascertain whether the said Constant made the promise before mentioned; and the Jury found that she did; that, thereupon, the Chancellor dismissed the said bill of injunction, and George, the devisee, obtained possession by virtue of the judgment in ejectment; which decree of dismission was affirmed by the Court of Appeals. The bill proceeded to state that the record in the said suit between George Chapman, sen. and George Chapman, jun. so far as the same concerns the said promise, had an intimate connection with the present suit; the present defendant having been a party thereto, and having had an opportunity of cross-examining all the witnesses: it therefore prays that the said record, with all the exhibits in that suit, may be taken as part of this bill, and that all matters contained therein, tending to the establishment of that promise, may be received as proper evidence in this cause; averring I 1 1810. that the promise so found by the Jury in that suit was never OCTOBER, The prayer of the bill was for a full answer to the premi The defendant answered very fully; admitting the possessions, deaths and intestacies of the two first Nathaniel Chapmans, and the descent on Pearson Chapman; but denying that Constant Chapman made the promise mentioned in the bill; and alleging that Pearson Chapman could not have seen his mother's will before he refused to return the deed for the Pig-Nut tract; for the refusal was in 1766, and the will was made in 1767. He objected to the admission of the verdict, and proceedings in the former cause, as evidence in this; but was "willing to consent that all depositions in the said suit should be read by mutual consent; a right being retained to either party to examine such of the same witnesses as are now alive, and to exhibit other new testimony." No such consent appears to have been given on the part of the plaintiff. To this answer there was a general replication; after which the plaintiff died intestate, and the suit was revived by his co-heirs above mentioned; the bill of revivor, praying "that the suit and the proceedings therein stand revived in their names, and be in the same plight and condition they were in at his death;" and seeking also a discovery of rents and profits. The defendant answered this bill; discovering, in general, the rents and profits, and averring that they arose principally from the possessor's improvements. Commissions were awarded, (without any replication to the last answer,) and some depositions were taken. The cause came on finally to be heard, "on the writings and evidences formerly read in the cause between two of the parties," (George Chapman, sen, and George Chapman, jun.) "and on the the present bill and answer;" on consideration Chapmans V. 1810. Chapmans V. OCTOBER, nicate to that brother the benefit of that verdict, to which John was neither a party, nor privy; and by which he could not possibly have been prejudiced. Therefore, taking the matter either way, I think the record in the former suit inadmissible as evidence in this cause. This case appears to me to be much stronger than that of Payne v. Coles, lately decided: in the decision in that case I cheerfully acquiesce, and think it furnishes an additional reason for my present opinion. As to the depositions; the offer by the defendant to admit them to be read, alone, without the verdict or other parts of the record, not being accepted by the complainant, who insisted on the whole being admitted as evidence, the matter remains as if no such offer was made; and the same reasons will apply for rejecting them, as for rejecting the verdict. I am therefore of opinion that the decree be affirmed. Judge ROANE would have assigned his reasons for affirming the decree, had they not all been anticipated in the opinion just delivered. He contented himself, therefore, with expressing his concurrence; observing that the record of the former suit was not admissible as evidence in this; and, that being excluded, there was no evidence to prove the promise, alleged in the bill to have been made by Constant Chapman, on which the plaintiffs' claim is founded. Of course, the bill was properly dismissed. Judge FLEMING. It is the unanimous opinion of the Court that the decree dismissing the bill be AFFIRMED. Mayo against Turner. Thursday, October 11. The finding of a Jury, in a mill-case, that "probably the 66 health of cer tain families who live near ON a petition of John Mayo to the County Court of Hanover, for leave to erect a water grist-mill, the Jury, on the writ of ad quod damnum, found that " it is probable that the health of the families of Lewis Turner and of William Ragland, who live near the pond, if the mill is erected, will the pond will be annoyed by be annoyed by the stagnation of the waters." The County the stagnation of the water," Court," after hearing witnesses, and weighing all the cir. is conclusive cumstances," decided that leave should not be granted to titioner. against the pebuild the mill; and that decision was affirmed by the District Court, upon inspection of the record, without hearing evidence; whereupon Mayo appealed to this Court. Peyton Randolph, for the appellant, on the authority of Home v. Richards,(a) contended that the District Court (a) 2Call,507 ought to have heard the evidence of witnesses, and not to have determined the cause on inspection of the record only, whereby the appellant was precluded from offering testimony which might have produced a different decision. Wirt, contra, relied on the 5th section of the act of Assembly,(b) as conclusive for the appellee, and said there was (b) 1 Rev. Code, p. 199. nothing against him in the case of Home v. Richards. Friday, October 12. The Judges pronounced their opi nions. Judge TUCKER. The only question in this case is, whether the inquest of the Jury finding that the health of certain persons in the neighbourhood, of whom the appellee's family were a part, will be annoyed by the erection of a milldam, &c. be conclusive against the petitioner; or whether it be competent for him to examine witnesses to impugn that finding. |