the cause being now before this Court, on an appeal. The JUNE, 1808. bill also sought a review of the decree of the County Court. Per Curiam. This Court cannot review the decisions of an inferior Court in this way. the mode prescribed by law. They must be examined in This has been already de cided, upon great deliberation, in the case of Banks v. An Graves V. Graves and 20. others. derson.(a) The cause is properly before the Court in ano- (a) Ante, p. ther way: nor can this court, as decided in the same case, correct the decisions of an inferior Court by an original bill for that purpose. Upon any ground, therefore, without looking into the merits of this application, the motion must be denied, and the parties left to stand upon the appeal. The Court afterwards took up the appeal, reversed the decree of dismission, and made the injunction perpetual. Clarke against Hoomes's Executors and others. Monday, June 27, 1808. Anorder from ment at com the usual terms, is not ON the 29th of May last, the plaintiff obtained from the Judge of this Court, who was then in the county of Pow- the Chancellor granting hatan, an injunction, upon the usual terms, to inhibit the an injunction defendants from selling, under an execution of Hoomes's to a judg executors against Joham Randolph, a negro man claimed mon law upon by the plaintiff. On the 30th of the same month, the order made by the Judge was shewn to the defendants at the sale sufficient to stay the proat Powhatan Court-house, and they were forewarned from ceedings until selling the said negro. The plaintiff then proceeded to nant has.comthe complaithe city of Richmond with all possible dispatch, and, upon plied with the complying with the conditions of the order, obtained from order by giv the clerk the subpoena and injunction: but, when he return- ing bond and ed to the county of Powhatan the sale had been made, and the agent of Hoomes's executors had bought and carried In such case, terms of the security. it is no contempt of the Court of Chancery for the plaintiff or the sheriff to proceed to sell under the execution, notwithstanding the Chancellor's order was shewn them. JUNE, 1808. off the negro. At an early day in this term, the plaintiff moved and obtained a rule, returnable on Saturday the Clarke V. Hoomes's 25th instant, upon the deputy sheriff of Powhatan, and the Executors & agent for Hoomes's executors, to shew cause why they others. should not be attached for their contempt in disobeying the order of the Judge. They accordingly appeared, and shewed cause. Per Curiam. The order in this case, which it is said has been disobeyed, was a conditional one: and before it could have any obligatory force, it was the duty of the plaintiff to comply with the conditions. This had not been done when it was presented to the defendants, although the plaintiff knew of the sale time enough to have made his application for his injunction, to have complied with the conditions usual in such cases, and to have been at the sale, if he had been so disposed; and therefore he should not complain that, for the want of time, his property was sold. Again, the sheriff was acting under the process of a court of law, and was bound to obey its commands, unless, agreeably to law, he was inhibited. But if the court thought the defendants erred in not observing the order of the Judge, yet, under the present circumstances, he would not think them guilty of a contempt to the authority of the law confided to his hands, because it clearly appears from the testimony, that they considered the order as unavailing, unless complied with, in the first instance, by the plaintiff, and, for that reason, went on to obey the precept of the common law court: for this court is perfectly satisfied, from what appears, that, had the injunction been presented in the usual manner, it would have been obeyed. It would then very little comport with the character of a court of equity, toattach a man for doing wrong, when he intended to do right. It is the intention that, in all cases, should constitute the offence; and no man should for a moment be deprived of his liberty, who does not intend a violation of the law. Rule discharged at the costs of the plaintiff. Scott against Wharton. THIS was an application for an injunction to stay waste. JUNE, 1808. June Term, 1808. tion to stay not to be The bill stated that the plaintiff sold to the defendant a An injunc tract of land in fee-simple, but retained the title, as a secu- waste ought rity for the purchase-money. The defendant took posses- granted to a sion thereof according to his contract, and was charged vendor a with cutting and selling timber. gainst a ven dee to whom he has sold a tract of land retaining the suit to sub ney, and timber in a Per Curiam. Waste is an action which accrues to a tenant in remainder or reversion, against a tenant in posses- infee-simple, sion, or to one tenant in common against another, for any title as a sedestruction of the estate, either in houses, woods, or curity for the purchase mo lands; pending which action at law, a court of equity may ney; unless award an injunction to prevent the farther commission of he brings his waste, until it is determined; or, if the court of equity ject the land to the pay should grant the injunction in the first instance, it would ment of the direct an issue to try the waste, and, upon the verdict's purchase mo being certified, would put an end to the controversy. It charges the defendant follows, therefore, that no person is entitled to an injunc- with cutting tion to stay waste, unless he can maintain an action at law and selling for it; which the plaintiff in this case could not do, because manner calhe has parted with all his interest, and only holds the title der the land as a security for his money: he stands in the situation of an incompetent security, a mortgagee out of possession; and although, in general, a in which case mortgagor, in possession, is not liable for profits, because such injunc the mortgagee may avail himself of his legal remedy to get waste pending the suit may into possession, yet, pending that remedy, or a suit to be awarded foreclose, should it appear that the mortgagor, by his conduct, was likely to lessen the mortgagee's security, this Court ought to restrain him in such conduct: but nothing of this sort appears in the case before the Court, and the injunction must be denied. On another day in this term the plaintiff filed another bill against the defendant to subject the land to the payment of the purchase-money; and charged the defendant with cutting and selling timber in a manner calculated to render the land an incompetent security, to prove which several affidavits were filed; and the injunction was awarded. VOL. II. D culated to ren tion to stay JUNE, 1808. Jure Term, 1808. A decree, Barr against Barr's Administrator. A DECREE had been entered, in this case, against and execu- the defendant for the balance reported against him as adtion thereupon, against ministrator. An attorney's fee was taxed. The execuan executor tion issued against his own goods and chattels, and he trator, for a gave a forthcoming bond. or adminis balance due on his admi. count, should the decedent in his hands At this term he moved for a bill of review on two nistration ac- grounds: 1. That the decree should have been entered not be a- against the goods and chattels of the intestate in his hands gainst the goods and to be administered, and not personally against himself; chattels of and, 2. That an attorney's fee should not have been taxed. Per Curiam. The object of this suit was not to recover to be admia debt against the intestate, but of the defendant. The nistered, but against his decree was therefore correctly entered, and the fee as corown goods and chattels, rectly taxed. Had the suit been for a claim on the intestate, then the decree would have been against his goods In such case an attorney's and chattels in the hands of the defendant to be administerfee ought to be taxed. ed, and no fee would have been taxed. Bill of review denied, June Term, 1808. An order of Anderson against Gest. THE defendant, a resident of England, had been or the Court of dered by this Court in the time of the late Chancellor, to Chancery, to make up an make up his it is to be be executed account of administration of William AnderThe order did not express that it should be Master of this Court; and at this term by his done, must counsel he exhibited an unauthenticated copy of an account before one reported to the Court of Chancery in England by one of its of the mas masters, and insisted that, when a duly authenticated copy ter commis sioners of the should be produced, it should be received by the Court Court. here as evidence; or, that, considering his residence, he The Court should be allowed to make up his account of administra cannot ap point com- tion before persons in England. missioners to make up an account out of the state, except by consent of parties. Anderson V. Gest. Per Curiam. This Court cannot change its course on JUNE, 1808. account of the residence of parties. All who are ordered to account must do so, before one of its masters, or before commissioners appointed by it, which it can only direct within its own jurisdiction, unless the parties consent to commissioners without, in which case it is their act, and not the act of the Court, and to which the Gourt will not object. |