Mitchell vs. Gillespie.

been recovered in the former action. That decision was made on the facts of that particular case. There was no claim of damage except for the loss of the slave, who had died.

The expenses of medical attendance, nursing, &c., were not sued for, and not asked on the trial, and this Court, in delivering its opinion, was particular to say, that if the jury had found a special verdict, setting forth the facts as stated in the record," the measure of damages would have been, in judgment of the law, at least to the extent stated by the Court to the jury," which is that stated above. It was not decided that if sued for, other damages could not have been recovered. The contrary is implied.

It is unnecessary to decide, that in cases of false warranty, damages of some description may not be recovered, to which the plaintiff would not be entitled when the warranty was made in good faith, and without mixture of fraud. But we do hold, that where damages resulting from the breach of the warranty, are of a sort that may be recovered in either form of action, the recovery in one will bar the plaintiff's right to sue in a second action. The evidence of the damage in that respect, must necessarily be the same in both actions, and it is the plaintiff's own fault if he omitted averments in his declaration, which were necessary to admit proof of them. The defendant must not be harrassed with a multitude of suits growing out of the same cause of actions.

The order or judgment of the Court dismissing the action, was simply an act of supererogation. The cause was already out of Court by the judgment of nonsuit, and plaintiff's motion was to set aside the nonsuit, and reinstate the

case.

Judgment affirmed.

Ex'ors of Nolan vs. Bolton et al.

Executors of JAMES Nolan, plaintiffs in error, vs. James N. BOLTON and others, defendants in error.

A testator used this language in his will, "it is my will and desire, that at the divis ion of my property, each one," (legatee,) “shall be charged with, and account for in said division, all money or property they have received from me, so as to make them share equally in the property to be divided, and in advances."

Held, that the legatees were bound to account for all money "received" by them, as much that received by them, as a loan, as that received by them, as an advancement.

Equity, from Wilkes county. Decided by Judge Thomas, March Term, 1858.

The bill of complaint in this case was filed by James N. Bolton and others, legatees under the will of James Nolan deceased, against John West and another, executors under the said will for an account.

The testator James Nolan, in the last item of his will, after appointing his executors proceeded as follows," and it is my will and desire that at the division of my property each one shall be charged with and account for in said division all money or property they have received from me, so as to make them share equally in the property to be divided and in advances."

During his lifetime the testator had advanced to his son-in law Charles L. Bolton, divers sums of money for which he held Bolton's notes and receipts, at the time of his death, and the question was, whether the complainants should account for these notes and receipts as advances under the above clause in the will, in the division of the testator's property.

The respondents submitted the following evidence to show the liability of the complainants, to account for these notes and receipts of Charles L. Bolton.

John H. Dyson, who testified that he wrote the will of Nolan, 12th of June 1856. The instructions to aim by Nolan were to put in the will, that Polly Bolton's children were to

Ex'ors of Nolan vs. Bolton, et al.

be charged with the amounts of money he had let Col. Bolton have. In drawing the will at first, this was left out. After it was first drawn and read over to him, he said you have left it out, that he believed with West there would be no difficulty, but with Bolton he knew there would be, unless it was plainly stated in the will. He asked me if the laws of the State would not make them account for advances, to which witness replied that he thought not, unless so stated in the will when a man made his will. He said nothing about intending these notes and claim on Col. B. originally as advances, nothing about Col. Bolton ever agreeing they should be advances; nothing about Col. Bolton's owing him, but said there was a bundle of old papers in his possession which would show what money he had let Col. Bolton have. In a will written some 12 or 15 years since, Mr. Nolan provided that Col. Bolton was to account for money he (Nolan) had let Col. Bolton have. Mr. Nolan frequently and uniformly spoke of the money he had let Bolton have-never as money owing by Bolton.

Complainants, counsel requested the Court to strike out all the testimony, as not making out a case against the complainants. This motion was overruled by the Court.

The Court charged the jury as follows: "Gentlemen of the jury, as a general rule, money evidenced by promissory notes cannot be considered as an advancement; and in order to change it from a debt to an advancement you must believe, from the testimony, that it either was a gift by agreement, at the time the respective notes were received, or became so subsequently by agreement."

"Further, the Court charges you that at the time the will was written, if the notes remained debts up to that time, they were not changed by the testator in the will, from a debt to an advancement."

"The respondents have specially requested me to charge you as follows, that the jury should deduct from the portion VOL. XXV.-23.

Ex'ors of Nolan vs. Bolton, et al.

of these complainants, whatever sums of money may have passed, from time to time, into the hands of Bolton, from Nolan; whether notes were taken for such sums or not, which I refuse to do."

"Further respondents request me to charge, that when a man uses a word having a legal meaning, he is presumed to use it in that sense, when speaking of legal matters, unless a contrary meaning appears, and if Nolan said these notes in controversy were advances to Bolton, he is to be presumed, unless the contrary appears, to have used the word “advances” in its legal sense, and it is to be understood, unless the contrary appears, that all had been done which was necessary to be done, in order to constitute them advances! which I refuse to do. Further, respondents request me to charge, that the jury have a right to consider all the circumstances of the case, if proven, such as the relation of the parties, the date of the notes, their being out of date, the permitting C. L. Bolton to leave the State, the terms in which Nolan spoke of the papers in order to ascertain whether the notes were memoranda of advancements originally, or whether the notes were subsequently arranged by Nolan and Bolton, to stand for 'advancements', which I charge to be the law."

The Jury returned a verdict for the complainants: that they were not bound to account for the notes and receipts offered in evidence; and the respondents filed their bill of exceptions assigning the same as error.

REESE, for plaintiffs in error.

BARNETT & THOMAS, contra.

By the Court.-BENNING, J. delivering the opinion.

What was it that the testator meant the legatees to "be charged with and account for." The defendants in error, say, that it was only gifts-advancements; that it was not loans.

Ex'ors of Nolan vs. Bolton, et al.

His words are: "it is my will and desire that at the division of my property, each one shall be charged with, and account for, in said division, all money, or property they have received from me, so as to make them share equally in the property to be divided, and in advances."

First, let us take the words, ending with "me."

"All money or property they have received from me," is an expression which, taken by itself, is broad enough to include all money or property that had proceeded from the testator to the legatees, whether it had proceeded as a gift, or as a loan. In a gift, the thing given, is "received" by the donee; in a loan, the thing loaned is "received" by the borrower. Received, may be equally predicated of both a gift and a loan.

It is the clear import, then, of the words ending with "me," that the legatees were to account for whatever they had received from the testator, whether they had received it as a gift, or, as a loan. It follows, therefore, that they must account for whatever they received from him unless the subsequent words, by an import at least equally clear, relieves them from the duty of accounting for some part, or the whole, of what they may have so received.

Let us then go to the subsequent words. Do they, to any extent, relieve the legatees from this duty?

Those words are "so as to make them share equally in the property to be divided and in advances."

The word advances means, say the counsel for the defenants, gifts-advancements; and does not mean loans; and, thence it follows, they insist, that the testator, notwithstanding the breadth of his first words, could not have meant the legatees to account for loans.

But, in the first place, the word, "advances," when taken in its strict legal sense, does not mean gifts-advancements, and does mean a sort of loan; and when taken in its ordinary and usual sense, includes both loans and gifts-loans more readily, perhaps, than gifts.