APRIL, 1810. V. Jones. Mr. Call, for the appellee, complained of the liberality of Commissioner Rose, and the Chancellor, in respect to the accounts stated by the former; but I think without sufficient Fitzgerald reason. I am therefore of opinion that, after correcting the errors which I have pointed out, the residue of the decree ought to be affirmed; and that the cause be remanded to the Court of Chancery for a final adjustment of the accounts between the parties, (one of whom has been already overpaid,) upon the principles which I have mentioned. Judge ROANE concurred that the decree be reformed in the points expressed in that about to be pronounced by this Court. He did not deem it necessary, or proper, to go into any calculations, which were more properly the business of a Commissioner. As to the compensation to be allowed the executor, he thought that, under the particular circumstances of this case, the estate having been directed to be kept together, which imposed additional labour on the executor, he was reasonably entitled to a commission of seven and a half per cent. Judge FLEMING gave no opinion on the subject of commissions, being personally interested in that question; but in other respects concurred with the rest of the Court, and read the following as their joint opinion. "The Court is of opinion that the said decree is erroneous in this; in affirming the verdict of the Jury impannelled to ascertain the quantity of tobacco made on the estate of the said Daniel Jones, the elder, in the year 1779, 1780 and 1781, and the report of Master Commissioner Hay thereon; by which verdict it is found that the quantity of 119,950lbs. of tobacco was made on the said estate in those three years; for which the said executor was debited, and against which he had credit for only 5,850lbs. of tobacco; when he ought to have had credit for 9,747 lbs., with which the said executor charged himself in his administra APRIL, 1810. V. Jones. tion account in the years 1779 and 1781; and a further credit for two hogsheads of tobacco, net weight 2,300lbs., Fitzgerald which the Jury found to have been destroyed by the British troops, at Colonel Brooking's, in Amelia County; and a further credit for the overseers' share of the said 119,950lbs. of tobacco; and also a further credit for the costs of transporting the said tobacco from the plantations to the inspections at Petersburg, and for the warehouse expenses of the same: Therefore it is decreed and ordered that the decree be reversed, &c. and that the cause be remanded to the said Superior Court of Chancery for an account to be taken, and a final decree to be entered, according to the foregoing principles; in which account so to be taken the executor is to be allowed seven and one half, instead of five per cent. on the receipts and disbursements of the whole estate of the said Daniel Jones the elder." Neither con Clarke against Conn. IN this case a decree was rendered in the Superior sent, nor long Court of Chancery for the Richmond District, March 16, of parties can 1804, dismissing the bill with costs; from which decree give the Court acquiescence of Appeals ju- the plaintiff prayed an appeal, which was allowed him " on risdiction. An appeal, there- his entering into bond with sufficient security in the Clerk's fore, (having entered on the docket. been improvi- office of the said Court, for the prosecution thereof, on or ed,) was dis- before the first day of the next term." This he failed to do; missed on mo- and, the 6th of October following, on his motion by Counsel, tion, five years after it was and for reasons appearing to the Court, further time, until the ensuing first day of February, was allowed him for giving the said bond and security; which he did accordingly, as certified by the Clerk of the Court of Chancery. A copy of the record was sent to the Court of Appeals, and the cause entered on the docket, April 4, 1805. At March term, 1810, a motion was made by Wickham, for the appellee, to dismiss the appeal, as improvidently granted; the power of the Chancellor over it having ceased on the first day of the term ensuing his final decree; according to the case of Anderson v. Anderson, 2 Call, 180. Randolph, contra, insisted that this objection was now too late, nearly five years having elapsed since the appeal was docketed. The appellee having acquiesced so long in the bond given by the appellant, must be considered as consenting to receive it, as executed in due time. Judge TUCKER observed, that consent could not give this Court jurisdiction; and referred to M'Call v. Peachy, 1 Call, 55. Wednesday, March 28th. The Judges pronounced their opinions unanimously, that it was a hard case; but the appeal must be dismissed. On the last day of that term, this order of dismission was set aside, and the case further considered. Tuesday, May 22d. The Judges again pronounced their opinions. Judge TUCKER. The question arises upon that part of the chancery law,(a) which authorizes the Chancellor to grant an appeal in vacation next after the term when the decree shall have been rendered. This is a question of jurisdiction, not of discretion. All the powers of this Court are statutory; it has no claim whatever to power from any other source; neither custom, prescription, long usage, or precedent, have any pretensions here, independent of statutory provisions. This has been repeatedly acknowledged in the cases of M'Call v. Peachy, Bedinger v. the Commonwealth, and Stras v. the Commonwealth. The time and manner of proceeding in order to Vo I.. I. APRIL, 1810. Clarke V. Conn. give this Court cognisance of the cause, is, I conceive, as essential as the nature, or amount of the matter in controversy. If the party suffers it to elapse without proceeding as the law directs, he is as much concluded thereby, as he would be by a verdict for 99 dollars 19 cents damages, instead of 100 dollars, which is the lowest sum of which this Court can take cognisance. Until the Court has legal possession of any cause, although it be upon their docket, it has no power over it, but to dismiss it. Jurisdiction must in all cases precede discretion. In the present case, I conceive, we have not the former, and therefore that we cannot exercise the latter. My opinion therefore is, that the order of dismission be reinstated. Judges ROANE and FLEMING were of the same opinion. The order for dismission was therefore reinstated. Argued April 26th, 1810. 1. It is not ne cessary for a Clay against White and others. THIS was an action of ejectment, in the District Court of patentee of New London, for 342 acres of land lying in Pittsylvania waste and un- County. The Jury found a special verdict, stating the folland, to make lowing facts : appropriated a personal entry thereon, to enable him John Fox obtained a patent from the Commonwealth for to maintain the land in question, on the 8th of July, 1780. In his will, ejectment; for the patent ip. 80 facto confers seisin. 2 Such seisin may be transferred and continued by deed of bargain and sale, or by devise but a person, whose seisin is interrupted by the actual entry and adverse possession of another, cannot, while out of possession, convey by bargain and sale such a title as will enable the bargainee to recover in ejectment. 3. The plaintiff in ejectment may recover less land than the quantity stated in his declaration. But, if the Jury find a special verdict, shewing the plaintiff entitled to a certain number of acres, part of the tract sued for; and do not specify the boundaries of such part with so much precision as that possession thereof may with certainty be delivered; a venire de novo ought to be awarded. dated August 5, 1780, and admitted to record, May 7, the 20th day of June, According to a survey, made in the cause, (in presence of the parties, and set forth in the verdict,) the lands in controversy contained 440 acres; beginning as in Fox's patent, and running one or two courses nearly corresponding with the lines thereof, and some others apparently the same, or nearly so; and including a survey of 350 acres made August 2, 1788, for William White, one of the defendants; in whose favour a patent duly issued from the Commonwealth, on the 25th of February, 1792, "for 350 APRIL, 1810. Clay V. White. |