resided, (1) and where they were both arrested, besides NOVEMBER,

1815. other errors that are apparent on the face of the record.”

Judgment reversed; all the proceedings against the plain- Payne and tiffs in error subsequent to the original writ set aside, and the cause transmitted to the Superior Court of Law for the Ladd. County of Loudoun for farther proceedings to be had therein.

others

V.

Key against Hord and others.

October 27thing

1815.

THIS was a suit in the Superior Court of Chancery for 1. On the hear. the Richmond District, originally brought by Richard Key ing of a suit in

chancery, if it against John Hord and Daniel Fitzhugh, and the legal re- be discovered

that the cause presentatives of William Pickett, deceased.

is not matured The bill charged that, some time prior to the 3d of No. for hearing as

to some of the vember 1760, James Key, the plaintiff's father, purchased of defendants,

, William Pickett a tract of land, for the conveyance of which against whom

the plaintiff'aphe took his bond ; that the said William Pickett had since pears to have a

claim in equideparted this life, intestate as to the said land, leaving Mar

ty, the bill tin Pickett his eldest son and heir at law; that Martin Pick- ought not to

be dismissed ett had also died, intestate in like manner, leaving children, upon the merits ; who were named and prayed to be held as defendants; that but only as to

those John Hord and Daniel Fitzhugh had wrongfully taken pos- dants against

whom there is session of part of the same land, and were committing no equity; as waste upon it. The object of the bill, therefore, was to ob. to the other

defendants, it tain an injunction to stay waste (which injunction was grant- should be sent

back to the cd,) against the last mentioned defendants, a conveyance rules for farfrom the children of Martin Pickett, and a decree for pos- ther proceed

ings; notwithsession of the land.

standing the It being stated in some of the answers, that John Pickett, (1) Note. The only evidence in the record, that the defendants re- the cause was

for

OCTOBER,

1815.

Key

V. Hord and others.

and not Martin, was the eldest son and heir at law of Wil.
liam Pickett, deceased ; and Richard Key, the complainant,
having departed this life ; an amended bill was filed in June
1808, by the widow and children of the complainant, praying
a revivor of the suit for their benefit, and that the represen.
tatives of John Pickett be made defendants, and compelled
to convey the land to them.

Hord and Fitzhugh had previously demurred to the origi-
nal bill, as containing no grounds for a decree against them;
and, also answering, denied their holding possession of any
land to which the plaintiff had a claim.

In June 1810, the plaintiffs dismissed their suit, “except as to the defendants Hord and Fitzhugh, and the children of John Pickett," against whom, as not being inhabitants of this commonwealth, an order of publication was made, but does not appear to have been carried into effect. In May 1807, on the plaintiff's motion, an order of survey had been made, but not executed.

Sundry exhibits were filed; from which it appeared that the plaintiff's had an equitable claim upon the children of John Pickett, for a conveyance of a tract of land, by virtue of the title bond given by William Pickett to James Key, the last will and testament of the said James Key, and a deed from John Key and others, to the original plaintiff Richard Key.

In August 1810, the cause was set for hearing on the plaintiff's motion ; and, on the 3d of June 1813, came on to be heard, when chancellor Taylor decreed, that the bills be dismissed with costs; from which decree the plaintiffs appealed.

Wickham for the appellants.

Wirt for the appellees.

Tuesday, November 7th, 1815. The president pronounced the court's opinion, as follows:

The court, considering that this cause was not matured

as filed

for hearing as to the representatives of John Pickett, against NOVEMDEN,

1815. whom, as the case now appears, the appellants had a claim in equity, is of opinion, that the said decree, dismissing the

Key bill upon the merits, is erroneous.

Hord and
Decree reversed, and cause remanded to the Court of others.
Chancery, for the purpose of having the same matured as to
those parties, and to be otherwise legally proceeded in.

V.

express autho.

Was

Campbell against Mosby.

Argued No.

vember 6th, THE appellant exhibited his bill, in the Superior Court

1815. of Chancery for the Richmond District, against the appellee, on the 29th of September, 1809, stating, that pending an indebted to

1. C. being appeal from a judgment obtained by the appellee against by judgment,

gare (winthe him in the superior court of law for the county of Henrico,

miritf M., to wit, on the 26th of March, 1802, he adjudged the amount but witi:Call his including damages and costs with Barilet Still, the agent of rity,) to S., the appellee, and gave him a draft on Lucas Sullivant, of who, by vir

tue of an orFranklinton, in the state of Ohio, for the amount, being 433 der from M,

had an interest doliars 33 cents; that this was done with the privity of Mosby: in the same the draft had never been returned to the complainant; on the judgment, a

draft on L., contrary, Sullivant stated that he had a receipt for 333 dol- which lars 33 cents part thereof, and thought he had paid the be- partly paid, lance, and taken it in, though he could not find it. He there- tuined. M. re

ceved of a fore prayed an injunction, (which the chancellor granted,) person who

undertook the and for general relief.

collection, a Mosby, by his answer, denied that Still was his agent in part of the

craft, a mountany business whatever; averring, that Campbell offered him

ing to more the draft, which he declined taking, but said he would give than his share

of the judgÞim time to get his money from Sullivant. He farther stat- ment, and ed, that, in some transaction between himself and Still, he paid the sur

plus to the gave to the latter an order on the sheriff of Henrico, for 200 assignee of S.

It was adjudg do.lars, part of his execution against the complainant ; that that c. was con he received from Henry Massie, to whom Still remitted the titled to a cre

and nerer re

ceiv

defit

V.

the : titles Still

, cello

2.

from

boues

Cop Then and t the su Tongs

NOVEMBER, draft for collection, “ all the money which he would pay om 1815.

account of the complainant, which, after deducting the Campbell amount of your respondent's order aforesaid on the sheriff

, in favour of Bartlett Still, exceeded what was then due to Mosby.

your respondent thirty-five dollars, or thereabouts; which
surplus your respondent immediately paid over to Prosser
and Moncure, to whom Bartlet Still had assigned your re-
spondent's order aforesaid."

The plaintiff took the depositions of Sullivant and Massie,
which substantially supported the statement made in his
bill; but neither of them couid tell what had become of
the draft. A copy of the receipt for 333 dollars, 33 cents
was annexed to each of these depositions, signed by Bartlet
Still, with Mosby himself subscribing witness, and dated
the 4th of October, 1802. It was proved by the deposition
of Still, that he received and forwarded the draft to Massie
for collection; that it never was returned ; that the cause of
its being put into the deponent's hands was his being inter-
ested in the claim to the amount of 200 dollars; that he did
not consider Mosby as having any control over it; but the
deponent received it with his knowledge, privity, and consent.

The Court of Chancery directed an account; whereupon a commissioner made a report, stating the balance due from Campbell on the judgments, in case he should be credited only for the sum which Massie paid to Mosby, (deducting a commission of five per centum for collection, as amounting to 40l. 138. 9d. on the 4th of October, 1802; and, in case he should be credited for the whole of the draft, as amount. ing to 101. 18.71d. May 26th, 1802.

Chancellor Taylor made the injunction perpetual, except as to 401. 138. 9d. with interest from the 4th of October, 1802, till paid, and decreed the complainant his costs; from which decree this appeal was taken.

Williams, for the appellant, relied on two points :- 1. That

-1 even if Still was not authorized to take the draft as agent for Mosby, yet, being interested in the judgment, be was competent to negociate as to his own part; and, as he re.

loss or

NOVEMER,

1815.

Campbell

V.

Mosby.

ceived it, he became accountable to Campoell for

any deficiency. It follows, therefore, (Mosby having admitted the receipt by him of the full amount to which he was entitled, and all that is pretended to be due being claimed by Still,) that a credit should have been allowed by the chancellor for the full amount of the draft.

2. That Mosby, having interfered and received the money from Massie, sanctioned what Still had done, and became bound.

Copland for the appellee. Mosby refused to take the draft when offered him by Campbell. It was made payable to Still ; and therefore Mosby cannot be responsible for it, except for the sum he received. The balance of the judgment belongs to Mosby, as between him and Campbell ; though he may be responsible to Still for it, in satisfaction of his own order in Still's favour. Campbell's remedy is against Sullivant, who does not appear, by any testimony, to have paid off the draft.

Wednesday, November 8th, 1815, the president pronounced the court's opinion, that the bill drawn by the appellant on Lucas Sullivant, in the proceedings mentioned, ought, under the circumstances of the case, to have been considered as a payment of the debt due to the appellee, for the amount thereof.

Decree reversed; and injunction made perpetual, except as to the sum of 101. 18. 71d. with interest thereon, at the rate of five per centum per annum, from the 26th day of May, 1803, till payment.