APRIT, 1810. Johnson Johnson's in that case, a fee passed to Robert Johnson. There is no difference between the cases, so far as we are to be guided by preces dents. My own opinion, therefore, is, that the decree ought to be reversed; but, in deference to the decision of this Court in the case of Wyatt v. Sadler, it must be affirmed. Judge FLEMING. In the construction of this, as of other wills, to discover the intention of the testator, we must take the whole together, and judge accordingly. The writer of this will was very illiterate, and totally unacquainted with the technical terms of the law; and the testator having given the land in the same clause, and in the same words used in disposing of personal property, (the absolute right in which passed to the legatee,) it appears to me that the testator did not intend a remainder, on the death of his son Robert, to his heir at law, to whom he gave a small pecuniary legacy, and says no more of him. And, in the last clause of the will, he gives all the rest of his worldly estate to his well beloved wife Martha Johnson, to be at her “dispoon ingurin" of her life or widowhood; (meaning, I suppose, at her disposal during her life, &c.) If Robert took only an estate for life in the land, his widow, by the residuary clause, would have taken a remainder during her life, or widowhood, as such remainder was not otherwise disposed of by the will; and it could never, I conceive, have been in the contemplation of the testator to make such remote provision for his wife, on a supposition that she would survive his son Robert. But, on a presumption that Robert took an estate in fee, the whole of the will (though written in very untechnical language) seems perfectly consistent. I am therefore of opinion, that Robert took a fee in the land in controversy; and, if I had doubted on the subject, it having been already so decided by two different Courts, I should not now disturb the decree. Decree AFFIRMED. *Note. It seems, from this case, that a joint suit in Chancery my be maintained in behalf of a widow and heirs or devisees, to recover land in which the widow has a right to dower, on a bill stating a case in other respects proper for a Court of Law, (or alleging another circumstance, apparently with a view to give the Court of Equity jurisdiction, without proof of such circumstance,) and merely praying a decree for the land, and for general relief, without specially claiming dower, or praying that it may be assigned; that, having jurisdiction as to the right of dower, Newell against Wood, Governor of the Commonwealth. Wednesday, May 9 supersedeas, obtained in the governor, served on such relator, and not on the go vernor. revise any IN an action of debt in the County Court of Wythe, on a She- 1. A writ of riff's bond, in the name of James Wood, (who sued for the be- to a judgment nefit of William Ingledove,) the declaration, in the beginning there- the name of of, complained of James Newell, Stephen Saunders and Henry for the benefit Hamilton, in custody, &c. of a plea that they render unto the of a relator, ought to be plaintiff thirty thousand dollars, which they owe and unjustly detain; for that, whereas the said defendants, and a certain Andrew Thompson, William Drope and John Hay, by their certain writing obligatory, sealed with their seals," &c. " acknowledged them- 2. The court of appeals has selves to be held and firmly bound, yet the said defendants, or the jurisdiction to said William Drope, Andrew Thompson, and John Hay, have not judgment on a paid," &c. After a common order confirmed against the defend- bond, provided the penalants, leave was given to amend the declaration by making Thomp- ty amount to son and Drope and William Hay, administrator of John Hay, de- ted by law. fendants. But no amendment appears to have been made. A 3. The point verdict having been found for the plaintiff, the defendants filed decided in errors in arrest of judgment; alleging that "they, as sureties of Berkeley, 1 Andrew Thompson, were not liable to the plaintiff, until the was in like said plaintiff had established his claim in a suit against An- manner deci drew Thompson, their principal." The County Court arrest- case. ed the judgment. But on an appeal to the Washington District Court, that judgment was reversed, and judgment entered for thirty thousand dollars, (the penalty of the bond,) to be discharged by the payment of 23 dollars and 40 cents, (the damages nevertheless, assessed by the Jury,) and such other damages as may be hereafter the Court will entertain it for the whole subject in controversy, and, after decree, ing the land to the plaintiffs, will go on to decrec assignment of dower to the widow, partition among the other plaintiffs, and rents and profits against the defendants. See 2 Atk. 3. Cook v. Martyn, in which it is said that " praying general relief is sufficient, though the plaintiff should not be more explicit in the prayer of his bill;" and ibid. 141. Grimes v. French; "though you pray general relief by your bill, you may at the bar, pray a particular relief that is agreeable to the case you make by your bill; but you cannot pray a particular relief which is entirely different from the case;" or "inconsistent with it." Cooper's Eq. Pleading, 14. and the cases there cited. For example, the plaintiff may have an account for rents and profits under the prayer for general relief, if the case made by the bill entitle him to it; but not otherwise. 3 Atk. 132, 1 the sum limi Leftwich v. H. & M. 61. ded in this 4. If a court a right judgment for wrong rea a son, it ought, to be affirmed. Im 555 94 781 APRIL, 1810. Newell V Wood. assessed upon suing out a scire facias thereon, and assigning new breaches."* A writ of supersedeas to this judgment was awarded by a Judge of the Court of Appeals; which writ was executed on William Ingledove, the relator, and not on James Wood, the nominal plaintiff. This was afterwards determined by the Court to have been sufficient and proper service of the writ. Wickham, for the plaintiffs in error, assigned the following reasons for reversing the judgment: 1st. Because the suit was not commenced against all the obligors jointly, nor any one of them severally; but against three out (a) Leftwich of six obligors.(a) v. Berkeley, I H. & M. 61. 2d. Because if, in consequence of the order, made in the County Court, authorizing the plaintiff to make Andrew Thomp son, William Drope, and William Hay, administrator of John Hay, deceased, defendants, these persons should be deemed parties to the suit and judgment, the said judgment is erroneous in this, that William Hay, as administrator, is joined in the same suit with others who are sued in their own right; which is contrary to law. He contended, also, that this case was within the jurisdiction of the Court; although the damages recovered amounted only to 23 dollars and 40 cents; because the matter in controversy was more than 100 dollars; and because, by the judgment of the District Court the plaintiffs in error were liable for the sum of 30,000 dollars, which might be recovered on the assignment of new breaches. The COURT (consisting of all the Judges) agreed in opinion, that the first error assigned was fatal, upon the authority of Leftwich v. Berkeley, and that this Court has jurisdiction in all cases where the penalty of the bond is sufficient; the judgment being always for the penalty, to be discharged by the damages, &c.t *Note. See 1 Wash. 91, 92. Bibb v. Cauthorne. No appeal now lies to the Court of Appeals from any judgment on a forthcoming bond; but only a writ of error or supersedeas. 2 Rev. Code, p. 128. s. S Judge ROANE observed, that the County Court had rendered a right judgment, though for a wrong reason. Judgment of the District Court reversed, and that of the County Court affirmed. APRIL, 1810. Newell V. Wood. Whitehorn and Wife and others, Heirs and Executors of John Clanton, against Hines and others, Administrators and Heirs of William Howell. Wednesday, 1. Under what circumstances, a WILLIAM HINES and John Millison, administrators of William Howell, deceased, and the said John Millison, and Mary his wife, (which Mary is heir at law of the said William Howell,) deed obtained brought a suit in Chancery, in the County Court of Sussex, for the weak understanding purpose of setting aside a deed which the said decedent in his (though life-time had executed to his cousin John Clanton. not an idiot or lunatic) may be set aside in equity. 2. FRAUD, cir cumstances; The bill (which was filed in July, 1800) set forth "that, from the time of his birth to the day of his death, the said William Howell laboured under a lamentable and invincible weakness of it seems, may understanding and intellect, which rendered himself absolutely in equity from be presumed incompetent to regulate his own affairs, and CLASSED him with strong propriety among those who are called IDIOTS; that this was uni- such as gross inadequacy of versally known and assented to by all who knew him;" that he consideration, breach inherited from his father a tract of land, containing 264 acres, of and trust and conten slaves, whose names are mentioned; that, soon after he arri-fidence, andur ved at the age of twenty-one years, his cousin John Clanton, to erted (espewhom his situation had been long and perfectly known, induced young and him (although the plaintiff Mary, his sister, was then living) to by a near reexecute a deed to the said John for the land and slaves aforesaid, diligence and as his absolute property and estate, for the incompetent considera- assiduity in tion of the said John's finding and providing for the said William gainst objec influence ex cially over a weak person lation,) over guarding a tions, and the like. 3. Interest on the hire of slaves disallowed as in Dilliard v. Tomlinson, &c. ante, p. 183. 4. It seems, that a bona fide purchaser, without notice of fraud, having received a deed from two persons, (one of whom traudulently induced the other to join therein,) is not responsible in equity; but the loss ought to fall on the fraudulent vendor. (1)) But quere, if the estate of the fraudulent vendor be not sufficient to make good the loss? 1 5. In such case, the circumstance that the person defrauded was of weak understanding, but not an idiot or lunatic, is not sufficient to affect the right of the bona fide purchaser. (1) Note. In this case the measure of relief was the money for which the land was sold, with interest; no other evidence of its value appearing. APRIL, 1810. Whitehorn V. Hines. sufficient and plentiful meat, drink, washing, lodging and clothing, in a comfortable and plentiful manner during his the said William Howell's life, or his remaining a batchelor; that, after this deed had been thus fraudulently obtained, from an unfortunate and wretched being who was ignorant of its operation, the said John Clanton, having had the same (after several ineffectual attempts) proved and recorded, treated the said William Howell, during the remainder of his life, not like a kinsman, and a man from whom he had obtained a handsome estate, but as a vagabond, an outcast, and a slave; his food was of the coarsest kind; his garments were mean, tattered, and filthy; his person was miserably neglected; and himself consigned to the society and conversation of the negroes on the land. In order to manifest more plainly the PALPABLE AND INFAMOUS FRAUD practised on this occasion by the said John Clanton, the plaintiffs aver that the deed abovementioned, when offered, at first, and several times afterwards, to the Court for probate, was rejected by the said Court, and not permitted to be recorded, from their individual knowledge of the facts above stated, although no person whatsoever appeared to oppose it." The bill farther stated, "that John Clanton, in his life-time, sold the tract of land above mentioned to Isaac Sever and Micajah Hines, and their heirs, whose title to the same cannot be good or effectual, because the title of him under whom they claim is founded on a fraud, and the derivative cannot be superior to the original title; that Clanton departed this life, (after the death of Howell,) to wit, in the month of August, 1790, after having made his last will and testament, in which he bequeaths all his negroes (and those above mentioned of course) to his wife Sally Clanton, during her life, or widowhood, and at her death, or marriage, to be equally divided among his children; that the plaintiff Mary, "who is also a person of weak mind, (and on whom, on that account, divers tampering experiments were made by the said John Clanton with a hope to perfect and establish his said iniquitous title,) has for many years past resided in the state of North Carolina; and that no administration has been taken on the said William Horvell's estate until very lately; which is the reason why this odious transaction has not been sooner exposed to the view and indignation of the world." The prayer of the bill was, that Edward Whitehorn and Sally |