#### Armstrong v. Huntons.

November, 1842,

Richmond.

(Absent Stanard,* J.)

Equity jurisdiction—Discovery—Slaves.-†—Bill in equity by claimant of legal title to a female slave, against an adverse claimant, charges that the slave, with her increase if any, is in possession of defendant, who refuses to surrender the same to plaintiff; and prays that defendant may be decreed to give up the slave, that he may set forth the names of her increase if any, and say if the same be not in his possession, and that he may account for the hires and profits thereof since the plaintiff’s title accrued. Held, equity has no jurisdiction of the case.

Alexander Hunton, who died in 1789, by his will bequeathed a female slave named Hetty to his daughter Nancy and her heirs forever; and having bequeathed likewise to ten others of his sons and daughters one slave each, he added-—■“ It is my will, that if any of my before mentioned children die without lawful heirs of their bodies, their estate left them shall be equally divided among the surviving children.”

In July 1818, Robert, Susanna, John and George Hunton exhibited a bill against Thomas Armstrong, in the superior court of chancery of Fredericksburg, setting forth the will of Alexander Hunton; alleging, that after *the testator’s death, -Cyrus Newby, who had intermarried with Nancy Hunton, took possession of the slave Hetty, who afterwards had several children, one of whom named Patty, with her increase, if any, was now in possession of the defendant Armstrong; that Nancy Newby had died without ever having had issue, whereby the plaintiffs, the only children of the testator that survived the said Nancy, became entitled to the woman Patty and her increase, and had applied to Armstrong for them, but he refused to surrender them, pretending that as he had bought Patty from Cyrus Newby, he was the rightful owner. The bill therefore prayed, that Armstrong might be decreed to give up the woman Patty; that he might set forth the names of her increase, if any, and say if the same be not in his possession; and that he might account for the hires and profits thereof since the death of Nancy Newby.

Armstrong demurred to the bill, shewing as the ground of demurrer that the matter was properly cognizable at law. At the same time he put in an answer, stating, that he bought a negro girl named Patty at a sheriff’s sale in 1811 under an execution sued out against Cyrus Newby, presuming that the title was in Newby, and knowing nothing of the stock from which she came; and that he held her till April 1818, when he sold her.

The court overruled the defendant’s demurrer to the bill, and directed an account of the profits of the slave Patty from the death of mrs. Newby until she was sold by the defendant, and of the period and price at which she was sold. The commissioner reported an account of profits, amounting to 8 dollars; but instead of the price for which Armstrong sold the slave, he reported her estimated value at the time of the sale (the 15th of April 1818), which was 500 dollars.

It appeared by testimony taken in the cause, that Patty was only about 14 or 15 years old when Armstrong sold her. *The court approved the commissioner’s report, and decreed that Armstrong pay to each of the complainants 127 dollars, with interest on 125 dollars, part thereof, from the 15th of April 1818 till paid; and that he also pay the costs of the suit. From which decree Armstrong appealed to this court.

In the argument here, by Leigh for the appellant and Stanard for the appellees, | several questions of law and fact were *269earnestly debated. But as this court decided the question of jurisdiction alone, it is unnecessary to notice any of the others.

On that point, Leigh cited and examined the follcwing authorities: Duvals v. Ross, 2 Munf. 290; Gregory’s adm’r v. Marks’s adm’r, 1 Rand. 355; Rankin v. Bradford and others, 1 Leigh 163; Hardin’s ex’ors v. Hardin, 2 Leigh 572; Parks’s adm’r arid heirs v. Rucker, ñ Leigh 149. fie said, the plaintiff's had not pretended in their bill that they were ignorant of any thing necessary to enable them to maintain an action at law. The case of Hardin’s ex’ors v. Hardin was expressly in point, and conclusive against the jurisdiction.

Stanard contended that the case of Gregory’s adm’r v. Marks’s adm’r was an authority for, and not against, the jurisdiction in this case. As to the other cases cited by the counsel for the appellant, he endeavored to shew that they were distinguishable from the present case. In Hardin’s ex’ors v. Hardin, the case mainly relied on for the appellant, the bill itself shewed that the plaintiffs needed no discovery of the increase oí the slaves in controversy. Here the bill asks a discovery of the -increase, and there is nothing to shew that the plaintiffs were aware of the fact that the slave had no increase: the circumstances of the case indeed prove that they were ignorant of that fact. In Box v. Morton, decided by this court in 1828, but not reported, the circumstances were stronger against the jurisdiction *than they are here: the ignorance of the plaintiffs, there alleged in the bill, was expressly denied by the answer: yet this court sustained the jurisdiction.

Leigh in reply.

In Box v. Morton, the bill contained am allegation that the defendant refused to give information as to the increase, so as to enable the plaintiffs to sue at law; and the circumstances of the case, like those in Gregory’s adm’r v. Mark’s adm’r and Rankin v. Bradford &c. shewed that the plaintiffs were in need of a discovery from the defendant. Besides, no express objection was ma.de to the jurisdiction there. Here the bill does not assert that there was any increase; it merely asks a discovery of the increase if any. At the time of the suit brought, the girl Patty was only 14 or 15 years old, and it was highly improbable that she could have any increase : the call for discovery, therefore, was prima facie merely colourable.

*

He had been counsel for the appellees.

†

Equity Jurisdiction—Discovery—Slaves.—The principal case is cited in Hall v. Smith, 25 Gratt. 76; Childress v. Morris, 23 Gratt. 806; Hale v. Clarkson, 23 Gratt. 47; Jones v. Bradshaw, 16 Gratt. 360. See monographic *note*on “ Bills of Discovery ” appended to Lyons v. Miller, 6 Gratt. 427.

Same—Action of Detinue.—In Summers v. Bean, 13 Gratt. 419, the court said: “If the appellee could recover the slaves by an action of detinue, he would have an ample remedy at law and could not come into equity for relief. *Armstrong v.*Huntons, 1 *Rob. R.*323, and cases therein cited.” The principal case is cited in this connection in Childress v. Morris, 23 Gratt. 805.

BALDWIN, L

If this is not an action of detinue brought in a court of chancery, it must be because the plaintiffs have asserted their demand by a bill instead of a declaration. It is a suit to recover a single slave, by the owners of the legal title, if any, against an adverse claimant, without any impediment whatever to the prosecution of the plain and adequate remedy at law. If there is any thing in the case, besides the sex of the slave, to give any the slightest colour of jurisdiction to a court of equity, I have not been able to find it. She had no issue, and of course there was no necessity for a discovery; and the ignorance of the plaintiffs, without the slightest enquiry, of a fact (that of issue) which never existed, can furnish no reason for coming into equity; the more especially when such ignorance is not even suggested by them, but is to be surmised by the court from the interjection of a prayer for a discovery of the issue, “if any.” It is‘ perfectly clear as a general rule, that in a bill to substitute an equitable for a *legal forum, a prayer for a discovery, without any averment shewing its materiality or necessity, is naught. If this court has tolerated a departure from this rule, in regard to slave property, (Gregory’s adm’r v. Marks’s adm’r, 1 Rand. 355,) it has been where the necessity for a discovery was supposed to be incidental, at least prima facie, to the nature of the demand; as where the suit is to recover a stock of slaves, after a considerable lapse of time, and there has been such an increase as would raise a fair presumption that the plaintiff is ignorant of their names, ages and residence. But even under such circumstances, if it may be inferred from the statements in the bill, or the evidence in the cause, that no such difficulty in point of fact exists, a court of equity will not take cognizance of ihe case, unless there be some other ground for the exercise of its equitable jurisdiction. Hardin’s ex’ors v. Hardin, 2 Leigh 572. To entertain jurisdiction of the cause before us would be to obliterate the line of demarcation between the two tribunals, so far as slave property is concerned, and permit actions of detinue for the recovery of slaves to be prosecuted indifferently in a court of law or a court of chancery, at the election of the claimant.

I think the decree ought to be reversed, and the bill dismissed with costs. The other judges concurring, decree reversed and bill dismissed.