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, 1 H. & M. 61. 2d. Because if, in consequence of the order, made in the County Court, authorizing the plaintiff to make Andrew Thompson, 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.‡ *Note. See 1 Wash 91, 92. Bibb v. Cauthorne. No appeal now lies to the Court of Appeals from any judgment on a forth coming bond; but only a writ of error or supersedeas. 2 Rev. Code, p. 128. s. 5. 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 circum stances, a deed obtained a man of 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,) brought a suit in Chancery, in the County Court of Sussex, for the purpose of setting aside a deed which the said decedent in his (though life-time had executed to his cousin John Clanton. weak under standing not an idiot or lunatic) may be equity. 2. FRAUD, cir cumstances; breach of trust and con The bill (which was filed in July, 1800) set forth "that, from set aside in 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 be presumed understanding and intellect, which rendered himself absolutely in equity from 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, inherited from his father a tract of land, containing 264 acres, and ten slaves, whose names are mentioned; that, soon after he arri- fidence, undue influence exved at the age of twenty-one years, his cousin John Clanton, to erted (especially over a whom 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, lation,) over 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 weak person guarding 3 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 fraudulently 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? 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. V. Hines. sufficient and plentiful meat, drink, washing, lodging and clothing, in a comfortable and plentiful manner during his the said William Whitehorn 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 Howell'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 his wife, (late the widow of the said John Clanton,) Drury Clanton and others, his infant children, James C. Bailey and Benjamin Wyche, executors of Michael Bailey, who had been his surviving executor, (after the death of Burwell Loften, who had also qualified,) and the said Isaac Sever and Micajah Hines, purchasers of the land as aforesaid, should be held, as defendants, to answer the same; that the aforesaid "fraudulent" deed should be declared and rendered null to all intents and purposes; that the slaves, and their increase, should be restored, and their reasonable hire, from the date of the said deed, paid to the plaintiffs, administrators of William Howell; that the land should be delivered up to the plaintiffs, Millison and wife, as her absolute estate in fee-simple; that Clanton's representatives should account for and pay to them" the reasonable rents and profits of the said land, from the date of the said deed, until the same was conveyed to the said Sever and Hines respectively; and that Sever and Hines should account and pay, in like manner, from the dates of their respective conveyances until the decision of this suit; concluding with a prayer for general relief. The DEED (exhibited with the bill) is dated the 9th of October, 1783, and recorded the 18th of March, 1784; being for, and in consideration of the love and affection which he (the said William Howell) hath and doth bear unto his cousin John Clanton, and for his said John Clanton's finding and providing for him, from time to time, and at all times hereafter, 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 the said William Howell's remaining a batchelor; as well as for the farther consideration of the sum of five pounds current money." The land and slaves were conveyed to the only proper use and behoof of him the said John Clanton, his heirs and assigns for ever: provided nevertheless, that, in case the said William Howell shall hereafter intermarry, that the said estate, as well land as slaves, with the increase of the said slaves, (if any,) shall revert unto the said William Howell and his wife during their joint or several lives; and that, in case the said William Howell shall have lawful issue, that the said estate above mentioned, and every part thereof, shall be subject to the disposal of the said William Howell, by deed or will, to and amongst his child or children as aforesaid, or, in case of his failing to make APRIL, 1810. Whitehorn - V. Hines. APRIL, 1810. V. Hines. such distribution, shall pass, go, and descend agreeable to the act of Assembly in case of his dying intestate; but, in case of Whitehorn said marriage, and the said William Howell and wife dying and leaving no lawful issue of their body, then the property of the said estate, both land and slaves, with the increase of the said slaves, to revert to the said John Clanton, his heirs and assigns for ever." The joint and several ANSWERS of Benjamin Wyche and James C. Bailey stated, that Michael Bailey, their testator, "had, previous to his death, fully closed and returned to the Court his executorial accounts; and that they were entirely ignorant of any fraud or iniquity." The separate answer of Micajah Hines alleged, " that he was personally acquainted with the said William Howell, deceased, and, from his own knowledge, conceived him to be a man of WEAK MIND and intellect, but not in so much as to render him incapable of conducting his own affairs, OR to class him with propriety and LAWFULLY amongst those called IDIOTS: that the said William Howell, (jointly and first named in the conveyance made to this defendant,) with John Clanton, appeared in Court, and acknowledged the deed, with the said Clanton, on the 19th of October, 1786: that as to ANY FRAUD OR INJUSTICE committed by the said Clanton on the said Howell, in obtaining the deed of conveyance for the said Howell's land and negroes to the said Clanton, this defendant cannot conceive that there was any :" that he never heard of the deed's being offered for probate and rejected by the Court, until very lately: that the deed appears to have been written by Col. David Mason, now deceased, and attested and proved as a witness, by him," who, at that time, was supposed to be a very good judge of law: this defendant cannot therefore suppose that the said Mason conceived the said Howell to come within the description of an IDIOT, or he would not have proven a deed, whereby himself and his heirs were devested of a handsome estate.” Isaac Sever, in his separate answer, says, quainted with William Howell, deceased; but, from what he has understood by others, he does not conceive that the said Howell could with propriety be classed amongst those whom the LAW deems IDIOTS: that the said William Howell and John Clanton, jointly, sold the tract of land which this defendant at present holds to a certain William Milner, by deed recorded the 19th October, 1786; and from said Milner it was sold to a certain Henry Caton, and "that he was not ac |