193 the Chancellor had committed an error in is first decree in toto; for it was clear, that, urray having died in March, 1793, before took effect,* (which was on the 1st of Oc 1793,) the distribution of her estate was governed use and by the acts of 1785, c. 60 and c. 61.; according to which, her mother was not excluded from inheriting a share of Wife. ,, her estate, though derived from her father; to which share, (being one-fourth part.) of course, Charles Curtis, in right of his wife, became entitled. 2. That Joanna Curtis having died in July, 1793, Charles Curtis, her father, became entitled, in his own right, to the share of Mary Anne Murray's estate, which had fallen to the said Joanna; being one-eighth part; and, 3. On the death of Christopher Curtis, in 1795, Charles Curtis, in like manner, became entitled to the said Christopher'sshare being one-eighth of the sa id Mary Anne's estate; notwithstanding the act of 1792, which was then in force, but did not apply against him; for, though the estate of Mary Anne Murray came from her father; and therefore the issue of her mother by a second husband were by that act excluded from inheriting; yet the inheritance had previously fallen to Christopher Curtis; and Charles Curtis claimed under him, not under Mary Anne Murray. In the case of Blount v. Gee, MS. it was settled, that an estate which did not come immediately from the father, though it might mediately, was not to be considered as restricted from going to the mother, or her relations. Chries Curtis, therefore, upon the whole, was entitled to one half of the personal estate of Mary Anne Murray, deceased; and, so far, the first decree should not have been rescinded. the case of Proudfit v. Murray, 1 Call, 401, and Brown v. Turbeyille, 2 Call, 390. Tuesday, May, 1, 1810. The Judges delivered their opinions. Judge TUCKER pronounced the following, in the case of Dilliard v. Tomlinson. This is the very same case which was decided in this Court, October term, 1801, and is reported in 3 Call, 105. under the title of Tomlinson v. Dilliard. In October, 1803, a petition of appeal was allowed by this Court on errors suggested in carrying the decree of this Court into execution. In the statement presented by the appellant's counsel it is suggested that the appeal was prayed for and allowed by the Court; not only on account of the alleged errors after the decree of this Court was rendered, but for the purpose of inducing this Court to reconsider the original decree, in the appeal, upon which they have already decided, upon full argument, and mature consideration, as appears by the report above referred to. As I had not the honour of being a member of this Court when the petition of appeal was allowed, I must rely on the appellant's counsel for the correctness of this statement. Whether this Court hath power, upon a second appeal made in the same cause, to reconsider and reverse its former decision upon a point solemnly debated at the bar, and with no less solemnity considered and decided by a full Court, is a point of great magnitude and importance to the Commonwealth. If it hath such a power, (which I strongly incline to doubt,) it ought not to be exercised but upon some very great and important occasion of general concern and of great magnitude to the parties. The number of appeals taken upon the same point since this petition of appeal was allowed, is evidence of the inconvenience which might ensue from the indulgence of such a practice; and the great length of time which has been consumed in the discussion during the present term, (nearly five days,) warns us to beware of the consequences which might ensue from a departure from that principle which regards the decision of this Court as final and conclusive between the parties APRIL, 18.0. Dilliard V. Tomlinson. V. Muse and APRIL, 18!0. Dilliard in the same cause, upon any point which shall have received a full discussion at the bar, and the mature consideration of the Court.(a) It is unnecessary to enlarge further upon Tomlinson. this previous question in the present case, because, after an attentive perusal and consideration of the arguments both V. Wyatt V. Muse and (a) Morris, others v Ross, of the bar and of the bench, in the case of Tomlinson v. Dilliard, I am constrained to say, "that the words of the Overton and law are too plain and positive to admit of doubt or con2 H. & M. struction;" as was said by the Court in their decree in that case. I shall therefore proceed to consider the errors alleged against the Chancellor's decree, after the decree made in this Court. 408. The first exception to the Commissioner's report appears to me to be without foundation. The second, that interest is charged upon the hire of the slaves, though not very important in amount, being only 15. 1s. 1d. is so in principle. The defendant is charged with interest from the very day the negroes' hire became due; whether it were received by him or not. This cannot be right: for it presupposes a fact which seldom or never happens in this country; that a debt is always punctually paid the very day it falls due. But, admit it were received on the day it became due; is an administrator chargeable with money received even upon a bond or mortgage, if there be no person authorized to receive it from him? Suppose a creditor out of the state, without any known attorney or agent within it; is the administrator chargeable with interest on the money in his hands which he has no means of paying away? Suppose, also, that the distributees are infants who have no guardian assigned them; is the administrator to pay interest until they have a guardian, or come of age? Suppose, as in the present case, he knows not to whom he is by law bound to make payment; shall he be charged with interest, until the question shall be decided by this tribunal? Lord Ch. Loughborough, in the case of Creuze v. Hunter, says, "I always understood the constant course of the Court was, that debts carrying interest had interest computed by the APRIL, 1810. Dilliard V Tomlinson. V. Muse and (a) 2 Ves. jun. report to the time of actual payment; but simple contract debts, not carrying interest had no interest, computed by the Master." He then asks, “Does any one remember an instance of the Master's computing interest on such debts as, on his report, do not carry interest?"(a) What is the hire of a slave but a simple contract debt arising from the labour of the slave? If so, is it not within the rule thus emphatically recognised, as the constant course of the Court of Chancery 165, 166. in England, from which we have borrowed almost all our ideas and rules of equity? I am, therefore, of opinion, that there is error in so much of the Chancellor's decree as allows this charge of 15/. 1s. 1d. for interest on the negroes' hire; and a still further error in allowing the interest on 1951. 4s. 5d. the amount of the slave hire received by the administrator beyond the date of the decree; as was decided in the case of Brewer v. Hastie, (b) and Deans v. Scriba.(c) The next question is, in what manner this 1951. 4s. 5d. arising in part from the hire of negroes, and, in part, perhaps, from the rents of lands, is to be distributed. In the case of Blount and Wife v. Gee, decided in this Court, November, 1, 1805, (d) it was determined that Mrs. Gee, the mother of Sarah Jones, was entitled to inherit lands from that daughter who died an infant, which she had derived from her brother John Norfleet, to whom the same were devised by his father, who was also the father of Sarah Jones. In that case, however, John Norfleet had attained his age of twenty-one years but I was of opinion, and understood the rest of the Judges who sat in the cause, to concur with me in that opinion, that the mother might have inherited these lands although John Norfleet had not attained his age of twenty-one years; for that the descent from the father to the daughter was not immediate, but broken: and therefore not within the exceptions contained in the fifth and sixth sections of the law of descents. I incline to adopt the same construction with respect to rents, issues and profits, either of land or slaves, and even of (b) 3 Call, 24. (c) 2 Call,' 419, 420. (d) MS. 1810 Dilliard V. APRIL, personal estate generally, where the same can be clearly ascertained and identified as such. Otherwise, they must go with the principal subject, whatever it be. Upon these Tomlinson. grounds, I think this money should be distributed according Wyatt to the fourth section of the law of descents, and not accordMuse and ing to the fifth, as the property immediately derived from the V. Wife. father must, according to the act of 1792. But as this point seems already decided in this case when it was formerly before this Court; and, as there may be a difference of opinion upon it; I shall, on the present occasion, press it no further, but submit to the opinion of a majority of the Court. Upon the whole, I conceive the Chancellor's decree ought to be affirmed, except as to the charge of interest on the hire of the negroes as before mentioned. Judge ROANE delivered the following opinion as applicable to the two cases of Dilliard v. Tomlinson, and Curtis v. Muse. The general question occurring in both these cases is, whether the exceptions contained in the 5th and 6th clauses of the act of descents, in relation to infant intestates, extend to personal estate as well as real. In the case of Dilliard v. Tomlinson, a further question conditionally presents itself; namely, whether, in the event that the act does not, in the opinion of the Court, extend to personal estate, the Court has power to correct the decree formerly rendered in that case, as well as to render decrees, in other cases, pursuant to such construction of the act. This question becomes unnecessary to be decided, (as I understand,) in consequence of the opinion of the majority of the Court upon the principal question; and therefore I shall not enter upon it: the rather, because the question may rarely, if ever, be expected to occur in future. In giving my opinion upon the general question aforesaid, I shall consider it as if it were an entirely new question; as if it had never before been acted upon or discussed by |