APRIL, 1810. V. As it appears, also, from this answer, that no part of John Clan ton's estate ever came to their hands, their testator, as surviving executor of Clanton, having closed and returned his executors' Whitehorn account to Sussex Court many years before the commencement of this suit, can it with propriety be said that they have in their hands any assets of John Clanton unadministered to pay the sum of money decreed to the complainants? It seems to me, therefore, that an account ought to be taken, and that the legatees of John Clanton pay their ratable proportion of the money due, for hire of negroes, and on the sales of the land, with interest at 5 per centum per annum, on the latter from the death of William Howell to the time of payment. "A The following was entered as the decree of the Court. majority of this Court is of opinion, that the said decree of the Superior Court of Chancery is erroneous in affirming the decree aforesaid of the said County Court, whereby it was adjudged and ordered that the appellants, executors of the said John Clanton, deceased, out of his assets in their hands to be administered, should pay to the appellees the sum of 7724. 17s. 11d. 1-2. it appearing by the report of certain Commissioners appointed by a decretal order of the said County Court of Sussex, made the 4th day of February, 1803, to make up and state an account to the Court of the reasonable hire of the slaves, named in a deed in the proceedings mentioned from the death of the said William Howell to the time of their report, that the sum of 103/. 1s. 2d. 3-4, part of the said sum of 772l. 17s. 11d. 1-2. reported by the said Commissioners to be due from the appellants to the appellees, was charged for interest on the hire of the said slaves from the 1st day of January, 1791, until the 1st day of October, 1804; which said report was approved and established in the whole by the said County Court. Therefore it is decreed and ordered, that the decree aforesaid of the said SUPERIOR COURT OF CHANCERY BE REVERSED and annulled; and that the appellees, adminis trators of the said William Howell, out of his goods and chattels in their hands to be administered, if so much thereof they have, pay to the appellants their costs in this Court. And this Court proceeding to make such decree as the said Superior Court of Chancery ought to have rendered; it is decreed and ordered that the decree aforesaid of the said COUNTY COURT BE REVERSED Hines APRIL, 1810. V. Hines. and annulled;"" and that the appellees, administrators of the said William Howell, out of his goods and chattels in their Whitehorn hands to be administered, if so much thereof they have, pay to the appellants their costs in prosecuting their appeal in the said Superior Court of Chancery. And it is further decreed and ordered that the appellants, in whose possession the slaves in the bill mentioned are, do deliver the said slaves and their increase to the appellees. And, it appearing to this Court by the answers of the defendants Benjamin Wyche and James C. Bailey, execucutors of Michael Bailey, deceased, who was the surviving executor of the said John Clanton, deceased, that their testator had, previous to his death, fully closed and returned to Sussex Court. a statement of his executorial accounts, (which answers, not having been denied nor replied to, must be taken as true,) it is therefore presumed that the said defendants, executors of the survi ving executor of the said John Clanton, deceased, can have none of his assets in their hands to be administered. It is therefore further decreed and ordered, that an account be taken of the legacies bequeathed to the other defendants by the last will of the said John Clanton, deceased, and that the said legatees pay to the appellees their respective ratable proportion of the balance of the said 7721. 17s. 11. 1-2d., after deducting the said sum of 1037. 1s. 2d. 3-4. charged in the Commissioners' said report for interest on the money due for the hire of the slaves. And the cause is remanded to the said Superior Court of Chancery for further proceedings to be had therein, agreeably to the principles of this decree." Argued at Greenhow, principal agent of the Mutual Assurance Society, against Barton. March Term, 1810. 1. Quære, whether the pur A MOTION was made in the County Court of Spottsylvania chaser of pro- against Seth Barton, on behalf of William Price, Cashier of the perty, for which a declaration, in the Mutual Assurance Society against fire, has been made by the ven dor, be liable for the premium; no policy of insurance having been issued, and no notice, of such declaration, given, until after payment of the purchase-money? And, if he be liable, is the proper remedy against him by motion in a summary way, or by action at common law? 2. Quære, also, is the property declared for liable, in the possession of the purchaser, who bought, and paid for it, without notice of such declaration. APRIL, 1810. V. Mutual Assurance Society, against fire on buildings of the State of Virginia,” and judgment rendered for 117 dollars and 47 cents, for premiums under a declaration of insurance made Greenhow by John James Maund, (for whom the property declared for was purchased by the said Barton,) with lawful interest, from the date of the declaration, until payment, and costs. At the trial in the County Court, a bill of exceptions was signed and sealed, which stated that, "it appearing that John James Maund had made a regular declaration, and then sold to Barton, and that no policy had issued, the Counsel for the defendant moved the Court that no judgment should be entered, inasmuch as the plaintiff did not prove a notice from John James Maund to Barton, until the purchase-money had been paid; but the court overruled this motion, and gave judgment for the plaintiff." From this judgment Barton appealed to the District Court holden at Fredericksburg, where it was reversed, and judgment entered for the defendant. An appeal was thereupon taken to this court, and (Price the Cashier having afterwards departed this life) was revived in the name of Samuel Greenhow his suc cessor. Randolph, for the appellant, insisted, 1. That, although no policy had been executed, the premiums on the declaration would have been recoverable, on motion, against Maund.(a) . 2. That Barton, the purchaser from him, was equally liable for such premiums,(b) and equally subject for the summary remedy by motion; (c) and 3. That it was not incumbent on the society to prove that Maund gave Barton notice of the declaration of insurance. 1 Nicholas, for the appellee, did not controvert the first of these positions; but contended that Barton, the purchaser, (not having received notice before he paid the purchase-money, and no policy having issued,) was not liable for the premiums; and that John James Maund alone was. Wednesday, April 18. The Judges ROANE and FLEMING (Judge TUCKER not sitting in the cause) pronounced their opi nions. Barton. 76. APRIL, 1810. Y. Barton. Judge ROANE, after stating the case. It is not necessary, in this case, to inquire, whether a judgment for the premiums could Sreenhow not have been legally obtained against Maund, personally, by motion or otherwise; nor whether the land in question could not be made liable in the hands of the appellee, for the sum re covered; nor even whether the appellee himself is, or is not li able personally therefor, if proceeded against by a regular suit at law, or bill in equity: nor is it necessary to inquire, whether if a remedy by motion had been given against the purchaser from a subscriber, it would have been a good defence against that motion, that the Society had not given the notice to the purchaser which is made the ground of the defendant's objection in the County Court. In the actual case before us, a plainer and broader question arrests us at the threshold; and that is, whether a summary judgment can be rendered against the purchaser from a subscriber, for a premium upon property which, although declared for, is not insured, by reason that the said premium has (a) & Rev. not been paid? The 8th sect. of the act of 1794,(a) relating to Code, App. (No. VIL.) p. the liability of purchasers and mortgagees, is undoubtedly con fined to cases of property, the insurance of which has been perfected, by the payment of the premiums. The term "subscriber" mentioned in the latter part thereof, must be construed to mean "member;" both because the property, which the section was contemplating in the first part thereof, is "property insured by virtue of the act," (which is not the case of property merely declared for;) because this same idea is kept up by the part of the section which makes it incumbent on the person transferring, to apprize the purchaser of the assurance, and endorse to him or them the policy thereof; and because, in the last part of the said section, the property is declared to be liable for "the quotas," (and not the premiums,) and therefore is to be confined to cases in which quotas only are due, or in other words, to cases in which policies have issued. The same, or a correspondent interpretation must be given to the term "subscribers" mentioned in the 6th section; which section, also, (upon the whole context thereof,) relates only to property of which the assurance has been perfected, With respect to the 10th section, it relates expressly, it is true, to subscribers" (i. e. such as have not paid their premiums,) and makes them and their property liable for the payment of such premiums; but there it stops: it neither gives a 74 APRIL, 1810. Greenhow V. Barton. remedy by motion against such subscribers, nor gives any remedy at all against the purchasers from such subscribers. These two essential ingredients are not to be found in this act, nor in any other act, that I have been able to discover; however the general liability of purchasers may stand, on grounds dehors the particular acts of our Legislature. With respect to this remedy by motion, it was first given to the fire company by the act of 1799, c. 30.(a) The preamble thereof states the justice and expedien- («) 2 Rev cy of giving an immediate recovery against "delinquent sub- Code, App. (No. VII.) p. scribers or members;" and the enacting clause is only commen- 78. surate therewith, and does not go further: this remedy is not given by that act, or any other, against those who claim under subscribers, by purchase, or otherwise. The testimony of this Court has been often emphatically borne against the extension of summary remedies. In the case of Asberry v. Calloway, (b) it (8) 1 Wash. was held, that an act of Assembly directing judgment to be rendered for the principal sum, with which a Sheriff was chargeable, and the damages, and not for the penalty, to be discharged by such payment, ought "to be strictly pursued; on the ground of being a new remedy contrary to the course of the common law;" although it is not easy to be discerned that the defendant could have been injured by the deviation, and, if not so injured, would not (in other cases) have been entitled to succeed upon an appeal, under the decisions of this Court; and, in the case of Anderson v. Bernard,(c) the Court was divided on the question, (c) 1 Wush whether a Sheriff could justify making a distress on account of 177. fees due to " A. C. deputy clerk," on the ground that the law only allows distresses for fees due to Clerks. Various other instances might be added to the catalogue; but I presume it requires no further proof to shew that a man is not to be ousted of his ordinary and constitutional mode of trial, unless (at least) it be by an express legislative declaration, or by a constructive declaration so strong as to leave no doubt of the meaning of the legislature, that another remedy should be substituted. On this ground, I am of opinion, that the judgment of the District Court reversing that of the County Court is correct, and should be AFFIRMED. Judge FLEMING. Two lant's counsel in this case. VOL. I. questions were made by the appel- 4 F |