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Moss

V.

RIDDLE.

all respects like the 2d plea, except that it averred that Riddle stated it to be the rule of the plaintiffs to take specialties for their debts if they could be obtained, and that the bond was delivered to Riddle in the absence of the other plaintiff, and except also that the conclusion was as follows: "and so the said defendant saith that the said writing, made and executed as aforesaid, was obtained by deception and fraud, as aforesaid, as to him the said Robert Moss, and, by reason of the said deception, is void as to him the said Robert Moss; and this he is ready to verify." But the court refused to suffer the plea to be filed, being of opinion that it would be bad upon demurrer. To this refusal also the defendant took a bill of exceptions.

C. Lee and Swann, for the plaintiff in error.

The plea of escrow was good. An instrument may be delivered to one of the parties as an escrow. Pawling v. United States, in this court.

It was not delivered to the plaintiffs, but to one of them only. It was not delivered absolutely, but upon condition that it should also be executed by another person also.

The plea of fraud also was good. It is not necessary to aver fraud in a plea. If the facts themselves show fraud, it is sufficient. Any thing that avoids the deed may be pleaded; and the conclusion," and so the said writing is void," is proper and sufficient. It is not necessary to say it is not his deed. 2 Wils. 352. Collins v. Blantern.

E. J. Lee and Jones, contra.

An instrument cannot be delivered as an escrow to a party who is to derive benefit under the deed. It must always be to a stranger. Shep. Touch. 55, 56, 57. Hob. 246. 3 Bac. Abr. 320. 694. Esp. N.

P. 221.

The 2d plea is not a plea of fraud. It is an at

1

tempt to set up as a discount or set-off against a bond, an unliquidated claim for damages for breach of a promise.

The facts stated do not amount to fraud. Fraud consists in the intention, the quo animo, which is not averred in the plea; and fraud can never be presumed, especially if it be not averred. 1 Vent. 9. 210. 3 Bac. 320. 1 Fonb.

March 13.

MARSHALL, Ch. J. delivered the opinion of the court to the following effect:

It is admitted by the counsel in this case, that a bond cannot be delivered to the obligee as an es crow. But it is contended that where there are several obligees constituting a copartnership, it may be delivered as an escrow to one of the firm. The court, however, is of opinion that a delivery to one is a delivery to all. It can never be necessary to the validity of a bond that all the obligees should be convened together at the delivery.

Upon the other point the counsel for the plaintiff in error has insisted that the plea is sufficient.

But the court thinks it so radically defective as to be bad even upon general demurrer.

There is no allegation of fraud, and the circumstances pleaded do not, in themselves, amount to fraud.

Fraud consists in intention, and that intention is a fact which ought to have been averred, for it is the gist of the plea, and would Łave been traversable.

Upon what was the plaintiff below to take issue? Upon all the circumstances stated in the plea which are mere inducement, or upon the conclusion that "the bond is void?" If he had traversed the inducement, the issue would have been immaterial;

Moss

V.

RIDDLE.

Moss

v.

RIDDLE.

if he had traversed the conclusion, it would have been putting in issue to the jury matter of law.

Judgment affirmed with costs.

C. Lee suggested that there was also an exception to the refusal of the court to allow an amended plea to be filed, after the court had adjudged the pleas bad.

But the Chief Justice said that the court had, in an early part of this term,* decided that such refusal was no error for which the judgment could be reversed.

* See the case of Mandeville and Jamesson v. Wilson, at this term, ante, p. 15.

BRENT v. CHAPMAN.

Five years' ad

verse

sion of a slave

ERROR to the circuit court for the district of posses- Columbia, sitting at Alexandria, in an action of tresin Virginia, pass brought by Chapman against Brent, marshal gives a good ti of the district of Columbia, for taking in execution, on a fi. fa. against the estate of Robert Alexander, be maintained. deceased, a slave named Ben, who was claimed by Chapman as his property.

tle upon which

trespass

may

The jury found a verdict for the plaintiff, subject to the opinion of the court upon a statement of facts agreed by the parties, which was in substance as follows:

The slave was the property, and in possession of the late Robert Atexander the elder, at the time of his death. His sons, Robert Alexander, and Walter S. Alexander, were named executors of his will, but never qualified as such. On the 17th of December, 1803, Walter S. Alexander took out letters of administration with the will annexed. No division was

ever made, by the order of any court, of the personal estate of the deceased among his representatives; but previous to August, 1800, a parol division of the slaves was made between Robert Alexander the younger, and his brother, Walter S. Alexander, the latter being then under the age of twenty-one years. Robert Alexander the younger being possessed of the slave, and being taken upon an execution for a debt or debts due from himself in his individual character, in August, 1800, took the oath of insolvency under the laws of Virginia, and delivered up to the sheriff of Fairfax county, in that state, the slave as a part of his property included in his schedule. The sheriff sold him at public sale, and the plaintiff, knowing the slave to belong to the estate of the deceased Robert Alexander as aforesaid, became the purchaser for a valuable consideration, and took possession of the slave, and continued possessed of him under the sale and purchase until July, 1806. The plaintiff in the winter usually resided in Maryland, and in the summer in Virginia, on his farm, where he kept the slave, and has never resided in the district of Columbia.

Dunlop & Co. obtained judgment against Robert Alexander the younger, as executor of his father Robert Alexander, and, upon a fieri facias issued upon that judgment, the marshal seized and took the slave as part of the estate of the testator Robert Alexander, there being no other property belonging to his estate in the county which could have been levied except what Robert Alexander the younger had sold and disposed of for the purpose of paying his own debts. The agent of the creditors, Dunlop & Co., as well as the marshal, had notice, prior to the sale, that the plaintiff claimed the slave.

Upon this state of the case, the court below rendered judgment for the plaintiff according to the verdict. And the defendant brought his writ of

error.

-C. Lee, for the plaintiff in error, contended, that,

BRENT

V.

CHAPMAN.

V.

CHAPMAN.

BRENT under the circumstances of this case, five years' possession did not give a good title to Chapman. The possession was not adverse, for there was no administration upon the estate of Robert Alexander, sen. consequently no person legally competent to claim the possession. Besides, Chapman knew that the slave belonged to the estate of the testator.

This debt was a legal, lien on the slave.

Robert Alexander, jun. could only transfer his right to the sheriff of Fairfax. The goods of the testator cannot be taken in execution for the debt of the executor. 4 T. R. 625. Farr v. Newman. Chapman could 'therefore only purchase the right of Robert Alexander, jun. in the slave.

The parol partition was void for the infancy of one of the parties. There was no executor qualified to assent to the legacy. By the law of Virginia, an executor cannot act until he has given bond. 1. Cranch, 259. Fenwick v. Sears. 3 Cranch, 319. Ramsay v. Dixon.

It is very doubtful whether five years' possession of a slave in Virginia, is itself a good title for a plaintiff. It may protect the possession of a defendant; and that is the only effect of the statute.

Swann, contra.

Robert Alexander the younger did not hold the slave as executor of his father's will, but under the legacy.

It is immaterial whether Chapman did or did not know that the slave belonged to the estate of the testator. Five years' possession by Chapman was a good title against all the world.

In England twenty years' possession is a good bar in ejectment, and it is also a good positive title in itself, upon which an ejectment may be maintained.

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