vorite idea of uniformity, in obedience three members, (but of whatever numto the provisions of the ordinary laws ber it may consist, it makes no differof alienage, why shall we not also succumb ence as to principle,) furnish a precedent to those overruling and paramount consid- to reverse its own judgments or decrees, erations, growing out of the nature of the after a lapse of eight or nine years, the subject, which, in point of fact, and under evil consequences would be incalculable. the actual operation of the rule, set such That great and many mischiefs would conuniformity at defiance? sequently ensue, must, I conceive, be so obvious to every reflecting mind, that it seems unnecessary further to animadvert on the subject. My conclusion then is, that the act of descents merely gives the general rule for the distribution of personal property by reference to the act of descents: but that, taken as well in relation to other laws or statutes, as to considerations which are equal to such laws or statutes, it is only "lex sub graviori lege." I will not bottom myself upon the mere letter of the statute, (and that, too, couched only under general words of reference,) and obstinately contend for a construction which is reprobated by the actual nature of the subject, confronted by so many absurdities, contradictions, inconveniences and incongruities; and the consequences of which will operate undoubtedly against the manifest intention of the Legislature. 212 *Upon the whole, I am of opinion that the law is for the appellants in both the cases, (of Dilliard v. Tomlinson and Curtis v. Muse,) and that the decrees therein ought to be reversed. As, however, the other Judges are of a different opinion, I shall be ready to pass my opinion upon any subordinate points of a decree to be rendered, pursuant to that of the majority of the Court. JUDGE FLEMING delivered the following opinion in the case of Dilliard v. Tomlinson. Three points were made by the appellant's counsel. 1st. Whether the former decision in this case be a bar to a rehearing of the merits of the cause, respecting the rights of the parties? If not, 2ndly. Whether the merits be not in favour of the appellant? And, if not, 2. With regard to the second point, "whether the merits be not in favour of the appellant?" the decision of the first seems to preclude the necessity of any remarks upon it; but out of respect to the ingenious arguments of the counsel who stated it, and for my own satisfaction, I reconsidered the subject with great attention; but the more I reflected on it, the more was I convinced of the correctness of the former decision of this Court. I am not, generally tenacious of my own opinions; but all the law-learning and eloquence of Westminster-Hall could not convince me that the decision (as the law then stood) was erroneous. The words of the law were, in my conception, too clear and explicit to admit of a doubtful meaning. 3. With respect to the third point, whether there was not error in the report of Master Commissioner Rose, respecting the profits of the negroes in question, and whether there is not error in the decree affirming that report; and decreeing interest on 1951. 4s. 5d. from the first day of January, 1802, until payment shall be made? I discover no error in so much of the report as states the profits of the negroes in question to be 1951. 4s. 5d. and is affirmed by the decree; but there appears to be error in so much thereof as allows 151. 1s. 1d. interest on those profits; and there is error in directing it to be continued beyond the date of the decree, which was not, at the time of making the decree, authorized by law, the act allowing Chancery Courts to award interest on final decrees, not having passed the 20th of January following: but, as to the profits themselves, I have no doubt but that the appellees *have a right to them, in exclusion of the mother, and any relations on the part of the mother; not only because this Court hath so adjudged it, but also, because it seems clear to me that the right to profits follows the right to the subject out of which they issue, as the shadow follows the substance. 3dly. Whether there is not error in the report of Master Commissioner Rose, respecting the profits of the negroes in ques-until tion; and whether there is not error in the decree, affirming that report; and in decreeing interest on 1951. 4s. 5d. from the first day of January 1802, until payment shall be made? The first was a point that I did not expect would have been made; though much was said in support of it; but the only plausible argument used was, that the decree of this Court, reversing that of the Chancellor, was an interlocutory decree, and therefore open to future discussion. That decree was made by a full Court, consisting of five members, after able and solemn arguments of counsel, and long deliberation of the Judges; and the rights of the parties respecting the subject in controversy clearly and finally decided by a majority of four to one: and what has been called an interlocutory decree, was a consequential and necessary order, growing out of the nature of the case, for carrying into effect the decree that had so expressly, and conclusively, determined the rights of the parties. And should this Court, the der 214 I am therefore of opinion that the decree ought to be reversed, so far as it respects the interest, and affirmed as to the residue. The following was entered as the decree of this Court. "The Court is of opinion that there is error in so much of the said decree as directs the payment of the sum of 151. 1s. 1d. by the appellant, as administrator of Benjamin Edloe Tomlinson, deceased, for interest on the hire of slaves, for which he is supposed to have been chargeable from the day the money for their hire became due from the persons to whom the slaves were hired, although there be no proof that the same was then received by the said administrator, and it was in this case doubtful to whom the same ought to be paid; and, also, in this, that the interest upon the same was directed to be continued beyond the date of the decree, which was not then authorized by law. Therefore, it is decreed and ordered, that the said decree be reversed and annulled; and that the appellees pay to the appellant his costs by him expended in the prosecution of his appeal aforesaid here. And this Court, proceeding to make such decree as the said Superior Court of Chancery ought to have pronounced, it is further decreed and ordered, that the appellant pay unto the appellees the sum of 1951. 4s. 5d. and their costs by them expended, as well in the prosecution of their appeal formerly in this Court, as in the prosecution of their suit in the said Superior Court of Chancery." 215 *The following opinion was pronounced in the case of Wyatt, Adm'r of Curtis, v. Muse and Wife, by JUDGE TUCKER. This cause depending in great measure upon the same principles as that of Dilliard v. Tomlinson, I find it necessary to say no more upon the subject, generally. The limitations in the will of William Murray, the father of the infants Mary Anne and Fanny Murray, deceased, and of the complainant Harriet Muse, leave no question to be decided as to the operation of the law of descents upon that portion of his estate. lands devised to her upon the contingency of the death of her sister Mary Anne, on her paying to her sister Fanny Murray, one hundred pounds current money, that complainant, or her husband, ought to be charged with interest upon that sum from the time of such entry, and possession taken and held, or upon so much thereof as ought to be paid to the distributees of the said Fanny Murray, other than the said Harriet Muse. And that this cause be sent back to the Court of Chancery with directions that an account (if required by either party) be taken, and distribution made according to these principles. I wish it to be understood that Charles Curtis, the husband of Anne Murray, mother of Mary Anne and Fanny Murray, and also the father of Joanna Curtis and Christopher Curtis, deceased, is entitled to the distributive shares of all those persons. JUDGE FLEMING. Upon the death of William Murray, his widow, Anne Murray, having renounced the will of her deceased husband, took, as her dower, three ninths of his slaves, and other personal estate; and his three daughters, Mary Anne, Harriet, and Fanny Murray, each two ninths thereof. Upon the death of Mary Anne Murray, in March, 1793, before the act of December, 1792, c. 92, was in force, her mother, then the wife of Charles Curtis, the appellant, succeeded to two equal eighth parts of her slaves, and other personal estate: two other equal eighth parts vested in each of her surviving sisters, Harriet and Fanny Murray; and one equal eighth part vested in each of her brother and sister of the half-blood, to wit, Christopher and Joanna Curtis. And of the reversionary interest in the dower slaves of her mother, two equal sixth parts vested in each of her said sisters, and one equal sixth part in each of her said brother and sister of the half-blood. *Upon the death of Joanna Curtis, in July, 1793, the estate derived to her from Mary Anne Murray, her sister of the half blood, vested in her father Charles Curtis, the appellant, who, upon the death of his son Christopher Curtis, in April, 1795, became entitled to one other eighth part of the estate of the said Mary Anne Murray, deceased, making, in the whole, a moiety thereof. But I am of opinion, that the slaves and personal estate of those infants respectively are to be distributed among their next of kin, according to the course of law at the time of their respective deaths; that is to say, that the slaves and personal estate of Mary Anne Murray ought to be distributed between her mother and surviving sisters, in the manner prescribed by the act, passed in the year 1785, entitled an act directing the course of descents, which act, as to personal estate, was in full force at the time of her decease. And that the 217 slaves and personal estate of Fanny Murray, which were derived to her immediately from her father William Murray, upon her death became liable to distribution according to the course in which lands are to descend, under the act passed in the year 1792, entitled an act to reduce into one the several acts directing the course of descents; subject to the proviso which is contained in the fifth section of that law. But that the slaves and personal estate of that infant, which were not immediately derived from her father, including under that description the rents, issues, and profits of lands, the hire and increase of slaves, and the interest of money, or any other property acquired after the death of the father, (including also in that description the sum of 1001. charged upon the lands devised to the complainant Harriet Muse, on the contingency in the father's will expressed,) where the same can be clearly and definitively ascertained, ought to be distributed among the next of kin of that infant, 216 in the same manner, and in the same proportions, as if she had attained her full age of 21 years at the time of her decease. I am further of opinion, that if it shall appear that the complainant Harriet Muse, or her husband, entered upon the With respect to the estate of Fanny Murray, she having died whilst the act of 1792, c. 92, was in full force, her mother, and brother and sister of the half blood, were thereby excluded from any distributive share of her estate. The following decree was thereupon entered. "The Court is of opinion that there is error in the said decree in reversing so much of the decree in the original suit brought by Charles Curtis, and Elizabeth Curtis, an infant, by the said Charles, her father and next friend, against Peter Kemp, executor of William Murray, and Harriet Murray, only surviving child of the said William Murray, as declares that, by the statute for distributing personal estate, including slaves unbequeathed, the plaintiff, Charles Curtis, (in right of his wife and his two elder children by her, who are dead, ern Neck of Virginia as were waste and unap- 2. Same-Same-Acts of Assembly-Effect.—Quære. and whom he representeth,) is entitled to one half of the personal estate of Mary Anne Murray; and as directs that the said Peter Kemp, defendant in that suit, should render an account of his administration of the estate of his said testator, before Commissioners appointed to examine, state and report on the same; and as decrees that the said Peter should pay and deliver to the plaintiff in that suit, Charles Curtis, one half of the slaves and other personal estate of the said Mary Anne Murray; and as approves and confirms the report of the Commissioners made in pursuance of that decree and order: and that there is also error in so much of the first mentioned decree on the bill of review as dismisses the bill in the original suit with costs; this Court being of opinion *that so much of the said original decree as relates to the estate of Mary Anne Murray, deceased, is correct, and ought to have been affirmed on the said bill of review; and that the residue of the said decree in the original suit was properly reversed; it is therefore decreed and ordered, that the decree in this suit be reversed and annulled, and that the appellants recover against the appellees their costs by them expended in the prosecution of their appeal aforesaid here. And this Court proceeding to make by their counsel, on the 9th of September, such decree as the said Superior Court of 1793, agreed a case, in substance, as folChancery ought to have rendered on the bill of review aforesaid, it is further decreed 218 and ordered, that the said Peter Kemp do pay and deliver to the appellant, Peter Wyatt, administrator of Charles Curtis, one half of the slaves and personal estate which were of the estate of the said Mary Anne Murray, deceased, and account for the profits of the said slaves from the time of her death, and pay the same to the said Peter Wyatt, administrator, of the said Charles Curtis. And it is ordered, that the cause be remanded to the said Superior Court of Chancery for an account to be taken, and further proceedings to be had therein, agreeably to the principles of this decree." Hunter v. Fairfax's Devisee.* 4. Ejectment - Declaration - Enlarging Term Laid Therein. In ejectment, if the term laid in the declaration expire before the decision of the cause, the practice is to grant leave to amend the declaration by enlarging the term. In an action of ejectment, on behalf of David Hunter against Denny Fairfax, in the Winchester District Court, 219 *for 788 acres of land lying in the County of Shenandoah, the parties, lows: 1. That the act of Assembly entitled, "an act for confirming and better securing the titles to lands in the Northern Neck, held under the Right Honourable Thomas Lord Fairfax, &c. (a) truly recites the several grants or charters which were made by the Kings of Great Britain, to the predecessors or ancestors of the late Thomas Lord Fairfax, of and concerning that part of the territory of the then Colony, now Commonwealth, of Virginia, called and known by the name of the Northern Neck; and that all the estates, rights and authorities vested in him previous to the year 1736, and thereby granted to them were lawfully remained vested in him until the time of his death. 2. That, in the year 1748, an act of Assembly was passed, entitled, "An act conArgued Tuesday. May 3, 1796, and reargued Wed- firming the grants made by his majesty, within the bounds of the Northern Neck,' &c. (b) nesday, October 25, 1809. 1. Northern Neck-Waste Lands-Title of Denny Fair fax+-Effect of Statute Thereon.-By the act of compromise, passed the 10th of December, 1796, (see Appendix, No. V. to 2 Rev. Code, p. (71.) c. 5.) the title of Denny Fairfax, and of those who claim under him, to such of the lands in the North*Sequel of Principal Case.-This case gave rise to a highly important discussion, viz. the appellate juris diction of the supreme court of the United States over the tribunals of the state. The principal case was carried before the supreme court of the United States by a writ of error and the judgment therein reversed. 7 Cranch 603. The supreme court of the United States issued its mandate to the court of appeals of Virginia to enter judgment for the ap pellant. Philip Martin. This the Virginia court of appeals declined to do. See Hunter v. Martin, 4 Munf. 1. From this refusal, a writ of error to the 3. That the said Thomas Lord Fairfax, proprietor of the said territory called the Northern Neck, in the year 1748, cpened and kept and conducted at his own expense an office within the said Northern Neck, for granting and conveying what he described and called the waste and ungranted lands therein, upon certain terms, and according to certain rules by him established and published, and that such of the aforesubject of the title of Lord Fairfax, and of Denny Fairfax. to lands in the Northern Neck of Virginia, #Ejectment - Declaration - Enlarging Term Laid note on supreme court was prosecuted and the case finally "Ejectment" appended to Tapscott v. Cobbs, 11 decided in 1 Wheat. 304. Gratt. 172. +Northern Neck-Title to Land Therein.-On this (a) 1 Rev. Code, p. 5. by him in fee as aforesaid, which lands said lands as were granted and conveyed forms of other lands conveyed and granted by him in fee, were granted and conveyed, in parcels, in a certain form, set forth at large in hæc verba; and that the said grants and conveyances in fee were transcribed and entered in books kept by him for that purpose, in the said office, by his own clerks or agents, and were uniformly alike, except as to grants and conveyances of lots in places laid off and designed for towns; that he kept the said office open for the purposes aforesaid, from the year 1748 till the time of his death, which happened in December, 1781; during all which time, as well as prior thereto, from the time he became proprietor as aforesaid, he exer220 cised the right of *granting and conveying in fee-simple, the lands called waste and ungranted lands as aforesaid, upon the rents, conditions and reservations contained in the grants and conveyances made by him; the rents reserved therein were paid to him as they annually accrued; and he also exercised the right of leasing for term of lives and for years (reserving annual rents) parcels of the said lands called by him waste and ungranted; which rents were also paid as they became due. 8. That a certain Thomas Bryan Martin is now, and always hath been, a citizen of the State of Virginia, and is the second son of the sister of Thomas Lord Fairfax, and the younger brother of the defendant; and that his said mother is now living, and always has been a British subject, and never hath made herself a citizen of the United States of America, or of any of them. 9. That a treaty of peace was finally made and concluded in the year 1783, between Great Britain and the United States of America, in hæc verba. 10. They agreed the several acts of Assembly, entitled, "an act for establishing a land-office and ascertaining the terms and manner of granting waste and unappropriated lands;"(a) "an act declaring tenants of lands or slaves in tail to hold the same in fee simple;" (b) an act passed in the 4. That the said Thomas Lord Fairfax was, at the time of his death, and for many years had been, a citizen and inhabitant of the Commonwealth of Virginia; that he duly made and published his last will and testament, which is set forth in hæc verba, and was admitted to record by the Court of Frederick County the 5th of March, 1782; in which will he devised all his "undivided sixth part or share of his lands and plantations in the Colony of Virginia, commonly called or known by the name of the Northern Neck of Virginia, to the Reverend Denny Martin, his nephew, of the County of Kent, in Great Britain, to 222 him, his heirs and assigns for ever; upon condition that he should procure an act of Parliament to pass to take upon him the name of Fairfax and coat of arms. And that the defendant Denny Fairfax was the same person mentioned in the said will by the name of Denny Martin, and that he obtained the name of Denny Fairfax, and the Fairfax coat of arms, in conformity to the directions of the said will. year 1784, entitled, "an act respecting future confiscations;'" (c) *an act passed in the year 1785, entitled, "an act for safe keeping the land papers of the Northern Neck in the register's office;"(d) an act passed in the year 1779, entitled, "an act declaring who shall be deemed citizens of this Commonwealth;" (e) an act passed in the year 1782, entitled, "an act concerning surveyors;'' (f) an act passed in the year 1785, entitled, "an act concerning escheators;" (g) and an 5. That the lands in the declaration men- act passed in the year 1785, entitled, "an tioned are a part of the land's known by the act to extend the operation of an act, entiname of the Northern Neck of Virginia; tled, "an act concerning escheators" to the and are also the same lands for which a several counties in the Northern Neck."(h) patent was granted to David Hunter, the 11. They agreed that the lands in the declessor of the plaintiff, by Beverley Ran-laration mentioned had not been escheated dolph, Governor of Virginia; (which is set and seised into the hands of the Commonforth in hæc verba, dated April 30th, 1789;) wealth pursuant to the two acts of Assemand are part of the lands called and de- bly last mentioned, or either of them; and scribed as waste and ungranted within the that no inquest of office of escheat had been said Northern Neck, by the said Thomas taken of and concerning the said lands. Lord Fairfax, as aforesaid; and are of the value of five hundred pounds current money. 221 *6. That Thomas Lord Fairfax died seised in fee of sundry tracts of land in the County of Frederick, and other counties in the said Northern Neck, containing altogether three hundred thousand acres, which had been granted and conveyed by him to Thomas Bryan Martin, in fee, upon the same terms, and in the same 12. They agreed in hæc verba, the 24th (d) 1785, c. 67, 2 Rev. Code, App. No. V. (69.) (f) October, 1782. c. 33, Ch. Rev. p. 179. (h) 1785, c. 53, 2 Rev. Code, App. No. V. (70.) certain taxes and duties, and for establish- said territory, or only a seignioral right ing a permanent revenue, into one act." (a) | thereto; a question unnecessary to be 13. They agreed that the lessor of the stirred in the present instance, as my opinplaintiff is a citizen of Virginia, and ion will go upon the admission that he had always has been, and that he entered into the former. The District Court gave judgthe lands contained in his grant or patent aforesaid, in pursuance thereof, and was possessed thereof prior to this suit. 14. They agreed the lease, entry and ouster in the declaration mentioned; and, if, upon the whole matter, the law be for the plaintiff, that judgment be rendered for him for his term yet to come in the lands in the declaration mentioned, and one penny damages; otherwise, that judgment be rendered for the defendant. ment for the appellee, from which an appeal was taken by the appellant to this Court. It is necessary here to state that the judgment was rendered the 24th of April, 1794, which accounts for the omission to state in the case agreed, either the treaty of November 19, 1794, between the United States and Great Britain, or the act of compromise of October 10, 1796, between the Commonwealth of Virginia and the purchasers under Denny Fairfax. The District Court, upon this case On the part of the appellant it is conagreed, gave judgment for the defendant; tended, that Denny Fairfax was, at the whereupon the plaintiff appealed; and, time of the devise in question, and ever Denny Fairfax having afterwards de-after, an alien, and incapable of holding parted this life, *the appeal was revived against Philip Martin, his heir at law and devisee. 223 This cause was argued in May, 1796, before Judges Lyons, Carrington, Fleming and Roane, and reargued on Wednesday, October 25, 1809, by William and Wickham, for the appellant, and Call, for the appellee, before Judges Fleming and Roane; (Judge Tucker not sitting in the cause, through motives of delicacy, being nearly related to a person interested;) but, as the Court went so fully into the subject in giving their opinions, it is thought proper to omit the arguments at the bar. Monday, April 23, 1810. The pronounced their opinions. Judges JUDGE ROANE. This was an ejectment brought by the appellant against Denny Fairfax, under whom the appellee claims, in the District Court of Winchester. lands in this Commonwealth; that, admitting an inquest of office to have been necessary under the general laws as applying to ordinary cases, the several acts of Assembly, stated in the case, respecting the mode of acquiring titles to waste and unappropriated lands in the Northern Neck, were equivalent thereto, and supplied the place thereof, in relation to such lands, and justified the grant by the Commonwealth; and that the act of compromise of 1796, aforesaid, ceded the title to the appellant, even if it were not complete without it. On the part of the appellee, on the contrary, it is contended, that the original appellee, Denny Fairfax, was capable of taking and holding the land devised to him, until devested by an inquest of office, 225 or some *equivalent act; and that no such act had taken place prior to the treaty of peace, which, it is further alleged, protected his property, and released the right of the Commonwealth to the land in question: it is also contended, that the act of compromise aforesaid (being passed subsequent to the judgment in this case) does not affect it, and cannot be introduced into the cause so as to vary that judgment. an At the trial, the parties agreed a case in lieu of a special verdict. That case agrees, inter alia, various acts of Assembly respecting the territory of the Northern Neck, as is therein more particularly stated; the treaty of peace of 1783, between the United States and the King of Great Britain; the act of 1784, "respecting future In the case of Reed v. Reed, (MS. April, confiscations;" that Lord Fairfax died, a 1805,) it was solemnly decided by this Court, citizen of this Commonwealth, in Decem- that a man standing in the predicament of ber, 1781, having devised his lands in the Denny Fairfax, is to be considered as Northern Neck to Denny Fairfax, who was alien under our laws, and that the treaty born in England in the year 1750, and has of peace did not operate to protect or ennever become a citizen of Virginia, or of large the inheritable rights of British any of the United States; that the land in antenati accruing after the date thereof. controversy was a part of the lands in that These were the points actually before the territory called and described by Lord Fair- Court in that case, and, therefore, judicifax as waste and ungranted land; that the ally decided: every thing which may have appellant obtained a grant therefor, from fallen from any of the Judges in relation to the Commonwealth of Virginia, on the 30th other points, or to topics not necessarily of April, 1789, entered, and was possessed presented by the case, I conceive to be extrain pursuance thereof until ejected; and judicial, and, as such, not entitled to the that no inquisition of escheat or for- weight of binding authority. It was not, feiture was ever found *in relation to for example, decided, on the other hand, this land, under the ordinary acts on that the descents to British antenati accruthis subject, as extended to the said terri-ing between the epoch of the declaration tory since the death of Lord Fairfax. 224 Referring to the case itself for a more particular statement, these are the facts which seem most important in the present instance: there are other facts which seem to relate to the question whether Lord Fairfax had an absolute fee estate in the soil of the (a) October, 1782, c. 8, s. 24, Ch. Rev. p. 176. of our independence and that treaty, were protected and enlarged thereby; or, in other words, that that treaty should be construed to arrest the operation of the ordinary laws of escheat and forfeiture of the several states: much less was it decided, in that case, or any other within my knowledge, that the several legislative acts |