FEBRUARY TERM, 1770.

#### John Somerville *against*Mary Johnson.

THE bill in this case, filed on the *13th*of December, 1766, stated, that a certain *William Deacon*by his will did devise, amongst other things, as follows, viz. “ I give *u*to my nephew *William*Deacon, of Portsmouth, all the “ rest of my estate both real and personal, with all the plate that is in the house at my death, to him and his “ heirs for ever, reserving to Mrs. *Mary*Johnson, during “ her natural life, the use of what land I have in the tract “ of land called *The Chancellor’s*Point, as likewise I re-66 serve to her use, during her natural life, the use of four *et*negroes, named as follows, to wit, *Ben,*Priscilla, *Jem,*“ and *Ignatius;*after her death the said negroes and land “ to be my said nephew’s, and to his heirs for ever.” And thereby did constitute and appoint a certain *Ignatius Fenxvick*his whole and sole executor. That the said *Mary Johnson*took possession of the four negroes under the said devise, and had hired them out; that the said negro wench Priscilla, after the death of the said *William*Deacon, had two children called *Rachel*and *Catharine;*that the coniplainant for a valuable consideration, to wit, the sum of SO/, sterling, purchased the said negroes in reversion after the death of the said *Mary*Johnson, together with the increase of the said negro wench of the said *Ignatius Fen-*wick, executor as aforesaid, who was likewise empowered, by letter of attorney from *William*Deacon, of Portsmouth, nephew of the said *William*Deacon, deceased, to sell and dispose of the same as by his bill of sale exhibited; that since the purchase of the reversion aforesaid, the com-' •plainant having, been informed that the said *Mary Johnson*
      *349.intended to remove the said negroes out of the Province, and publicly declared that the complainant should never enjoy his right of reversion therein, nor have any benefit from his said purchase, petitioned to His Excellency the Governor, setting forth the' facts aforesaid, and obtained his Lordship’s most gracious writ of *ne exeat provinciam*against the said defendant, which being served, the defendant gave bond with security in the usual form; that the complainant had hoped, that the said defendant would not have insisted on any further dispute, but have suffered the said bond to stand as security to the complainant. But so it was, the said defendant having for some time resided out of die Province, in the colony of Virginia, contriving how to defraud, oppress and injure the complainant, and combining, &c. hath refused to let the bond aforesaid stand as security to the complainant, and insisted on his filing his bill, and bringing the matter aforesaid to a plenary hearing; and the complainant believed, that the defendant would remove the said negroes, or some of them, into the colony of Virginia, without giving any security to the complainant that he should enjoy his right of reversion in the said negroes and increase, as aforesaid, and actually threatened to sell and dispose of the said negroes and increase, to the great injury of the complainant. All which actings and doings of the defendant and her confederates, were contrary to the plainest rules of equity and good conscience, and tended manifestly to the injury and oppression of the complainant. In tender consideration whereof, &c. praying that defendant might be compelled to give security that she would not remove the said negroes and increase out of the Province, or sell or dispose of them to the prejudice of the complainant. Also a prayer for general relief.

*The answer*admitted the devise and bequest as set forth in the bill, but that, in the same will, to the said devise and bequest in favour of the testator’s nephew, there was subjoined and added the following words, to wit, “ he *a*paying to my sister *Mary*Deacon, of Portsmouth, *iQh*
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      *a*sterling per annum, during her life, which I desire she *u*w;jj accep{; 0f as a token of the affection I have always *“*had for her.” It also admitted, that the defendant pos» sessed the negroes after the death of the testator; that it might be true that the complainant made such purchase as stated in his bill; that, from motives of humanity, the de» fencjan)-; SOon after the testator’s death, hired three of the said negroes, to wit, Priscilla, *Jem,*and Ignatius, to *D.*Wol?tenholm, Esquire, intentionally that they should be kept and worked on the testator’s plantation, to fhe use of which the defendant was entitled during her life, and her interest in which plantation she had sold to the said D. IF, and it was always her intention that those three slaves should there continue so long as she might have any power over them, and they themselves should choose to be there. She denied that she ever intended by any means to hinder or prevent those who should be entitled to the reversion in the said four slaves, from enjoying the benefit of them or either of them, at the time they ought, by the will aforesaid, to enjoy the same. She denied that she ever to her knowledge or memory, declared or said that the complainant should never enjoy his right of reversion therein, nor have any benefit from his said purchase, or any thing else to such purpose. But on the contrary, she said that she was always well content with the use only'for her life in the said four negroes. That soon after the testator’s death, she took the said negro Ben, who was a lad, to wait on her, and had constantly so employed him. She admits that since the testator’s death the said negro *Priscilla*had two children called *Rachel*and Catharine, which two children she had been advised and most humbly contends are the absolute property of her the defendant, as a profit of the principle stock, of which she was aforesaid entitled to the use; and she always did claim the increase of the said negro woman as her absolute property, which she apprehended was the true occasion of the complainant’s petition and bill, though other causes were untruly assigned therein. That since the death of the testator, the said *351negro woman had had two children other than those before mentioned, one called William, then alive, the name óf the other, who was dead, was unknown to the defendant. ’ . ’ That since the filing of the bill, negro *Jem*was also dead. She admits that *Ignatius Fenwick*was appointed executor, *. *■*. and that she had been obliged to give security as mentioned in the said bill. But she contended that she ought not to have been compelled to give any such security on the application of the complainant, who, from his own shewing, appeared to have become a purchaser of the reversion in tire said negroes bequeathed to the defendant for life, well knowing the particular circumstances they were under, and that too of a conditional right, or at least as the defendant %vas advised when the said negroes were, together with other things, charged with the said sum of 10/. per annum to the testator’s sister, which annuity the defendant contended ought, by the interposition of the Court, to be secured to the legatee on the same principles that the complainant ought to be secured of his reversion in the said negroes. And for that the security given was restrictive of the use disposed of by the said will to the defendant, which was intended by the testator for the benefit of the defendant, without any such controul. She denied all manner of fraud, combination, &c. and prayed that the injunction and writ of *ne exeat*provinciam, obtained by the complainant against her, might be discharged, &c.

J. Hall, for the complainant,

in the argument of this case before the Chancellor, cited the following cases. *Just,, Inst.*tit. *Use and Habitation.*1 *Donat’s Civil Law,*186. *Brook’s*Abridgment, pi. 13. foh 229. *QzOen’s*Reports, 33. 1 Domat, 189.

*T.*Johnson, for the defendant, cited

*Doctor and Stu*dent, 168. Co. *Lift.*124>.

*352Opinion of Daniel Dulany, Esquire.(a)

I’11® case is in substance this : Mr. Deacon, by his testament, bequeathed the use of certain negroes to the defen(jant for per jjf6j an¿ after her decease bequeathed the negroes to his nephew, in whose place the complainant stands. Some of the negroes bequeathed had issue after the death of the testator; and the question is, whether the issue is to be considered as part of the use, or as an accessary, and therefore follow the right to the principal.

The civil law was cited on the part of the complainant, and, if the rule were to be taken from the civil law, it would be in favour of the complainant.

The title, however, *de usu et habit alione,*does not affect the question. What is meant by the term use, by us corresponds with usufructus.

*Hoppias*shews the distinction between *usuarius*and nsufructus, and his distinction without more is sufficient. *Usufructuarius omnes fructus percipit; usuarius autem naturales*tantum, *non*industriales, *et sic nec*lacté, *nec land, nec*agnis, *uti poterit nisi ad necessitatem*summam, *ábi módico lacte uti liceat. Usufructuarius utilitatem aliis vendere vel cedere*poterit, *licet ipse jus retineat. Usuarius vera Utilitatem alteri cedere nequit.*

Lib. 2. tit. 1. sect. 37, 38. *de rerum*divisione, *et acquirendo ipsarum*dominico, relate more nearly to the subject: *In pecudum fructü etiam foetus*est, *sicuti*lac, *pilus et*lana, *itaque*agni, *hcedi, et*vituli, *et equuli et*suculi, *statim naturali jure dominini fructuarii sunt. Partus vero ancillce infructu non*est, *itaque ad dominum proprietatis pertinet; absurdwn enim*videbatur, *hominem in fructu esse cum omnes fructus rerum natura gratia hominis*comparaverit» *353
      *Sed si gregis usufructum quis habent in locum de mortuorum capitum ex fcetu, fructuarius submittere debet, ut ex Juliano virum est, et in vinearum demortuorum vel arborum locum alias debet substituere, recte enim colere et quasi bonus paterfamilias uti*debet.

*Hoppias, Ex Fcetu,*that *quia alioquin periret proprietas, hinc submissa ex fcetu ad dominum proprietatis pertineat. Si autem nihil adnascetur, aliunde oves (~scil.J fructuarias non*tenelur«

The civil law is no otherwise a rule than as it has been adopted, or as the reason of it may weigh. Adopted, it has not been here; and the reason above assigned, “ *ab~ a surdum enimf*&c. is rather an indication of humanity than applicable to the condition of our slaves. But there seems to be great reason in the rule applied to cattle, a *quia alioquin periret*proprietas,” &c. and if this was a new case, I should be strongly inclined to advise a different order from that which I think myself bound to do, in consequence of the case of *Dobson*v. Scott.

The two principal reasons which governed the Court of Appeals were,

1. That the issue ought to go to the person to whom the use was limited; otherwise, having no interest worth regarding, he might not take care of the issue. That it would only be a reasonable satisfaction for the expenses of maintenance, and for the time lost by the parent.

2. That when the use is given, a bounty at all events is intended; but instead of a benefit, if the issue should go over there might be a loss, and *Bac. Abr.*tit. *Leases,*p. 300, 301. was cited. If there be a lease of live stock, the young shall go to the lessee, otherwise the lessee would pay his rent for nothing.

This reasoning might, I think, be refuted in the admission, that oiily such of the issue should go over, as may make good the principal or original stock of negroes; but I apprehend the present rule must be *stare decisis,*a rule founded on great convenience. On this head Lord *Hardwicke*used to say from *Horace, utilitus justi prope mater*
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      *et*cequi; and Lord *Talbot*observed, that the rules of property being certain and known, it is not of great consequence what they are. The instances in which Judges have been governed by this' consideration, are infinite.

What Mr. *Johnson*observed at the bar is certainly true, that ever since the case of *Scott*v. Dobson, the law has been in this point looked upon to be, settled. The general opinions of lawyers have been accordingly; purchases have been made, and much property is held under it, and if a solemn decision in the dernier provincial resort should not be conclusive, contentious suits would be infinite. *Misera est res ubi jus est*vagum. The distinction (it was the only one he could attempt for his purpose) taken by Mr. *Dali to*avoid the case of *Scott*v. Dobson, cannot be admitted *;*for there is no difference between the thing and the use, when the first devisee does not take the entire property. *Chanc. Free.*323.

Wherefore, I apprehend, that the security taken should stand only for the principal or original negroes left by the, testator.

DECREE.

THIS cause coming this present day, (16th of February, 1770,) to be heard and debated in the presence of counsel on both sides, and the bill, answer, and other proceedings in the said cause, having been read, and the arguments of the counsel on both sides having been heard and considered, It is ordered here by the Court, that the security taken in the said cause do stand and remain obligatory upon the principal and surety therein mentioned, according to the intent^ and purpose thereof, as to the negroes specifically reserved to and for the use of the defendant; but not as to the issue proceeding, or that have proceeded or shall proceed from the negro woman called *Priscilla.*

Robt. Eden, Chan’r.

At the time this opinion was given by Mr. *Dulany,*he was a member of the Proprietary’s Council, and no doubt was universally consulted by the Governor in all important cases coming before the Governor, 'Who acted as Chancellor.