#### Whiting v. Daniel and Others.(1)

Wednesday, July 8, 1807.

Deeds — Insertion of Date by Donee after Delivering— Effect.* — A deed of conveyance for slaves having been signed, sealed, and delivered, with a blank left for the date, the donee afterwards inserted the date: no fraud, or imposition appearing to have been practiced in obtaining it, and no evil design in filling up the blank, the deed was adjudged to be good; the date not being a material part thereof.

(1)

1) See at the end of the decisions of this term, the rule of Court, adopted, in this case, with respect to the reading of records in the Chancery cases.

*

Deeds — Filling Up Blank — Effect.—If a deed can be enforced without filling a blank, filling it is immaterial. Keen v. Monroe, 7B Va. 428, citing the principal case and Ross v. Overton, 3 Call 309.

See also, monographic *note*on “Deeds” appended to Fiott v. Com., 12 Gratt. 564.

*179On an appeal from a decree of the Superior Court of Chancery for the Williams-burg' District.

"Daniel and twenty-three others filed their bill in the said Court, stating that they were the only slaves of a certain Miss Mary Eobinson, who on the 10th of March, 1803, made and published her will in due form of law, in which is the following clause: ‘‘After all my just debts and funeral expenses are paid, as 1 cannot satisfy my conscience to have my negro slaves separated from each other, and from their husbands and wives, &c. &c. I desire and will that the whole of them, that are my property at the |ime of my death, as far as the law enables me to do it, be emancipated that the testatrix, having appointed James Eoss and Mathew Whiting her executors, departed this life in the same month; that on the 4th of July, 1803, the will was proved in the County Court of Gloucester; though neither of the executors had qualified, nor was it believed that they would, as more than twelve months had elapsed since the death of the testatrix; that the debts due from the testatrix were buttrifling; suchas the other personal estate was sufficient to pay ; that Whiting had taken them into his possession, not as executor, but as his own property; claiming them under a deed prior in date to the will; that, upon their instituting a suit for the purpose of setting up the will and vacating the deed as fraudulently obtained, he had forcibly seized them and put them on board a vessel, with the avowed object of sending them to the State of Georgia; and that they were then on their way to that State; that the pretended deed under which Whiting claimed was executed by the testatrix under an idea that it operated merely as a power of attorney to enable him to recover the possession of the said slaves from a certain William Curtis by whom they were then held; and that the deed, which in •many places was left blank, had been, by the said Whiting, altered and added to since the death of the testatrix, and had been recorded in the County Court of Jefferson, many hundred miles from the residence of the testatrix and of the defendant, and since her death. The bill prayed an injunction to restrain the defendant from selling, or in any manner disposing of the slaves, or removing them out of the jurisdiction of the Court; that the deed should be set aside, and that they might enjoy their freedom under the will.

To the bill was annexed the affidavit of George Ball, who stated that the complainants were the slaves, and, he believed, the only slaves of Miss Mary Eobinson, of the county of Gloucester, and were the slaves intended to be emancipated by her will; that the defendant had not qualified '*as executor, but had removed the slaves from Gloucester to Norfolk or Portsmouth, on his way to Georgia.

The answer of Whiting, (after stating the existence of two other suits brought by the same complainants for the same object, one in the County Court of Gloucester, the other of Norfolk, and praying that they may be removed by supersedeas and certiorari to the Superior Court of Chancery for the Williamsburg District, and further consenting, that such of the complainants as he claimed as slaves might be considered parties, and have the benefit of any decree made in this cause,) stated that Miss Mary Eobinson, who was his aunt, had for some time resided with her relation, William Curtis, who acted as her agent and enjoyed the labour of her slaves for reasonable hires; that, on some difference arising between them, Curtis turned her out of doors; but still retained her slaves. In this distressed situation she wrote to the defendant, then residing in the County of Jefferson requesting him to come down and procure a habitation for himself and her in the County of Gloucester — to act as her attorney in the recovery of her slaves from Curtis — and finally promised that she would so provide that they should all become his property at her death; that the defendant, well aware of the fickleness of persons in her situation, expressed an inclination to comply with her request, but told her that, as he was to leave a part of the country where he was already settled, he wished to be on some certainty, with respect to the promise, before he changed his residence; that soon afterwards, she executed to him a letter of attorney for the recovery of the slaves, and, subsequently a bill of sale for the slaves themselves ; that a blank was left in the bill of sale for the insertion of the name of a negro child, which was not then known, and another blank for the day of the month, and the last numeral for the date of the year;.that the deed was formally delivered to the defendant by the grantor, and, with it, one of the slaves, in the name of all the rest; that the negro child soon after dying, the blank, as to that, was never filled up; but, knowing that his aunt intended to convey all her right in the slaves to him, that she thought she had done so, and, at any time after the execution of the deed, would have consented to the insertion of the date, if required, and that the bill of sale was executed on the Saturday after Good Friday in April, 1802, he did, in order to designate the date of the transaction, insert “18th,” supposing himself, from all the circumstances, authorised to do so, especially as the omission *of the date would not have vitiated the

instrument, and its insertion was done with no improper design. Believing that his title in the slaves, arising from the contract, as well as the bill of sale and the delivery of one of them, in the name of the rest, was paramount, both in law and equity, to any interest conveyed by the will, he took possession of them long before the date of the will, and has held them since, not as executor, but as his own properly. The answer admits the will to have been made (through the influence of bad advisers) at the time set forth in the bill, and that Mary Eobinson died possessed of sufficient personal property, other than her slaves to discharge all her debts. It further admits, that the defendant, exercising the rights of a master over his slaves, was about to remove them to the State of Georgia, to prevent the machinations of those who had inspired them, with a belief that they were *180free; but he denied that he could lawfully be restrained by the unauthorised endorsement of the clerk of the Court on the subpoena, before the Court itself had interposed ; — which endorsement was the only restraining process with which he had been served before he put the slaves on board the vessel.

The depositions and exhibits filed in this cause proved, that Miss Robinson, though a woman of “fine understanding,” was uncommonly “peevish, fretful, and whimsical that she had been turned out of doors by a relation with whom she had lived, who, notwithstanding, retained possession of her slaves; whereupon she frequently complained of being friendless, and said that no one would befriend her, till Mr. Whiting, her nephew, proffered his services, from whom she flattered herself she should be comfortably supported. It was further proved that while she lived with Whiting he was very “attentive and obliging towards her;” one of the witnesses, who knew her temper, said, that he “would not have boarded her on any terms,” another, that he would “not have been in Whiting’s situation for all her property.” On the “day after Good Friday in 1802,” (which, from an inspection of the almanack of that year, will be found to have been the 17th of the month) Miss Robinson, while at the house of a friend, (Mr. Baytop,) executed a letter of attorney, which bears date the 17th of April, 1802, to the defendant Mathew Whiting, for the purpose of demanding a- settlement of accounts between her and William Curtis, of regaining her slaves then in his possession, and of hiring them out. This instrument was attested by “John Lewis and James Baytop,” *in the “dining room” at the house of the latter; the former of whom proved the acknowledgment of Miss Robinson to her seal and signature, when he attested as a witness, but he did not know the contents; the latter was consulted by Miss Robinson before the power of attorney was executed, whether she could revoke it by a subsequent act, and told her that she could, subscribed his name, as a witness, and knew the purport of it.

On the same day, (as believed by most of the witnesses,) and at the same house, but in a different room, and before a different witness, Miss Robinson executed a deed of gift, (called in the bill and answer, a bill of sale,) to the defendant Mathew Whiting her nephew, whereby, in consideration of “natural love and affection, and for the further consideration of his supporting her for life,” she gave, granted, &c. to him all the negroes belonging to her, (designating them by name,) and then in the possession of William Curtis: of which negroes she put him “in full possession by delivering to him a negro woman named Judy at the time of sealing” the deed.

This instrument-was attested by “James Kerney, jun.” whose deposition stated that, in the Spring of the year 1802, he accompanied Mathew Whiting from the County of Jefferson to that of Gloucester, and was several days with him and Miss Robinson at the house of Major James Baytop; that, on a Saturday, shortly before he left that County, the defendant and Miss Robinson came out of an adjoining room into “Mrs. Baytop’s chamber,” where he was. sitting with several of the family; that Miss Robinson sat down at a desk near the witness, and the defendant handed her an instrument of writing which she looked over for some time and then signed, and the defendant asked the witness to attest it, which he did, upon Miss Robinson’s acknowledging her hand and seal, when interrogated to that effect by the defendants From a conversation between Miss Robinson and the defendant, the witness understood it to be a deed of gift from her to the defendant, for all her slaves. ■ He had since proved the deed in the County Court of Jefferson, which deed was the only instrument he ever witnessed between the parties. Several of the family of Major Baytop proved the attestation of the deed by James Kerney, jun. “on the Saturday after Good Friday in 1802,” in the manner stated by him, except that they did not all know its contents, and moreover proved, (as he stated,) Whiting and he left the house of Major Baytop, the same day, on their return up *the country. It was further proven, that on the same day on which the deed of gift was executed, Miss Robinson called a negro woman named Judy to the defendant, who gave her directions to remain where she was till his return ; and during his absence, to apply to Major Baytop for provisions for herself and children, who agreed to furnish them, of which fact Miss Robinson was informed. The character of James Kerney, jun. for probity, honesty, and veracity, was supported by several gentlemen of his acquaintance, of known respectability. On the 10th of March, 1803, Miss Robinson made her will by which she directed all her slaves to be emancipated, and expressly enjoined it on the witnesses to keep the will a secret till it should be exhibited in the Court for probate. She died on the 14th of April, and the will was proved in Gloucester County Court, by the witnesses thereto, on the 4th of July, 1803. On the 18th of August following, a bundle of papers, which had been lost by Mr. Whiting, was found and carried to Mr. Ross, one of the executors named in the will of Miss Robinson. At his request, and in his presence, an inventory was made by Mr. Vidal of all the papers; and their contents noted. Those among them which related to the present subject were the letter of attorney of the 17th of April, 1802; another of the same tenor dated April 15th, 1803; a copy of the will of Mary Robinson dated the 10th of March, 1803, recorded the 4th day of July, 1803, and attested by the clerk of Gloucester Court; an original letter from James Ker-ney to Mathew Whiting of the 20th of April, 1803, in answer to his of the 26th of March, requesting the attendance of the said Ker-ney at Gloucester County Court for the purpose of proving the deed of Miss Robinson ; in which letter Mr. Kerney states his recollection of having attested the deed, and the impossibility of attending, at the time required, to prove it; a deed of gift from Mary Robinson to Mathew Whiting for *181thirty slaves, besides children, in which a blank was left for the name of one of the children, the date of the month blank, and .that of the year not entirely filled up, thus:

—1 ‘set my hand and seal this day of April, 180 ”

“Test.”

“James Kerney.”

Mary Robinson. [Seal]

—-also a copy of that deed, (which in the opinion of several witnesses was an original,) with the only difference x'that the copy was dated “April the 15th, 1803.” — Three witnesses deposed to the identity of the papers as above described ; and one of them further declared, that the circumstance of the original deed being without a date, and the paper purporting to he a copy having dates, created in him a suspicion of fraud and practice which ought to be guarded against; and induced him to advise Mr. Ross, the executor named in the will, to take a memorandum of all the papers. These papers were delivered to Mr. Whiting, sometime in August, 1803, and as one witness deposed, in their original state; — but another witness, (who was not present at the moment of their delivery, and to whom they were shewn by Mr. Whiting,) proved that the signature to the deed was in the hand-writing of Miss Robinson, and that it was made upon the consideration of “natural love and affection and a life support,” but that there were but two blanks in it, one for the name of a negro child, and the other for the day of the month; and that the deed concluded thus: — ■

—“this day of April, 18 hundred and two.”

The blanks for the date having been filled up by Mr. Whiting, {as admitted in his answer,) so as toread “this 18th day of April, 1802,” the deed was proved in the County Court of Jefferson, on the 13th day of December, 1803, by the oath of James Kerney, jun. the witness thereto, and admitted to record.

It was further proved that, in January, 1803, Mr. Whiting hired out a part of the negroes, and took the bonds in his own name; the rest he carried to a plantation ■which he had rented for the residence of his aunt, Miss Robinson, and himself, with whom he lived till the time of her death, and that he continued to hold the negroes in his possession till the first of March, 1805, when he removed them; that his intention to change his own residence was publicly avowed, and his determination to remove the negroes to the State of Georgia was not made a secret. Two witnesses (Whiting’s overseer and his wife) proved that, in the winter of 1803, Miss Robinson said, “that she had given all her negroes to her nephew Mathew Whiting,” and another witness whose land Whiting rented, established the same fact. The overseer farther stated, that in consideration of the negroes, Miss Robinson added, ‘ ‘that her nephew was to support her for life.”

The deed of gift being considered as imperfect in its original state, and as made void by the subsequent alterations, the slaves claimed their freedom under the will, *and, after an ineffectual effort to obtain from the Court cf Gloucester County certificates of freedom, (which the Court refused to grant on being informed of the existence of the deed,) a subpoena was issued against Whiting returnable to that Court, with an endorsement shewing the nature of the suit; but no bill was filed. Whiting determined to remove the slaves to the state of Georgia, in order, as it was suggested, to avoid the said process of the County Court of Gloucester, and embarked with them, (together with the overseer and his wife who proved the declarations of Miss Robinson,) on board of a vessel for that purpose; but, having touched at the port of Norfolk, he was arrested by warrant from a magistrate on suspicion of having stolen the negroes.

The Court of Norfolk County being then in session, a bill, praying for an injunction against his carrying the slaves out of the State, was exhibited in that Court, on the 21st of March, 1804, and an order made directing the sheriff of Norfolk County to take the slaves into his possession, which was accordingly done. On the 3d of May, 1804, another bill for a similar purpose was filed in the names of all the slaves in the Superior Court of Chancery for the Williamsburg District; an injunction was awarded, and the sheriff of Gloucester County directed to take the slaves into hi.s possession, to hire them out for the remainder of the year, to provide for such as were chargeable, to prevent the defendant from intermeddling with them, and to guard against their removal out of the limits of the County. Both of those bills were supported by the affidavit of George Ball an attorney at law; but neither appear to have been filed by the direction of any Court; nor does he appear to have been assigned as counsel for the plaintiffs, nor do they appear as persons suing in forma pau-perum.

On a motion to dissolve the injunction awarded by the Superior Court of Chancery for the Williamsburg District, the Judge, on the 26th of July, 1804, changing so much of the former order as respected the sheriff of Gloucester, directed the sheriff of Norfolk County, in whose possession the slaves then were, to perform the duty assigned to the sheriff of Gloucester; except that the slaves were not to be hired for a longer term than till the 25th of October; and the sheriff of Norfolk was also directed to report his proceedings to the Court, on or before the first day of the next term. It was further ordered that the suits referred to *by the defendant, in his answer, as depending in the County Courts of Gloucester and Norfolk, for the same cause, if then depending, be dismissed.

At the final hearing, on the 17th of April, 1806, the Chancellor, being of opinion, “from the number of strong presumptive circumstances and evidences of fraud appearing on the exhibits, that the deed from Mary Robinson to the defendant, on its face bearing date the 18th day of April, 1802, was obtained by imposition, and that the plaintiffs, under the will of the said Mary Robinson, were entitled to their freedom, subject to the directions of the said will, *182and ’the provisions in the acts of Assembly relating to emancipated slaves,”, decreed that the said deed of the 18th of April, 1802, be set aside, that the injunction be made perpetual, and the defendant pay to the plaintiffs their costs, &c.

From which decree an appeal was taken to this Court.

Warden, for the appellant. In this case, the only question is, whether Miss Robinson executed the deed referred to in the appellant’s answer. If she did, and the deed be good, could she afterwards emancipate the slaves conveyed by it? The onlj' objection to the deed is, the want of a date; for the witness proves it was duly executed. This being the case, and the consideration being good, she had no right to devise them in any manner.

But a deed .without a date is good, because it operates from the delivery. The filling up the blank for the date could not, therefore, vitiate an instrument which was good without any date. Admitting the deed to have been void by that alteration, still the parol agreement remained, which was exactly what the deed afterwards declared ; and, the appellant having performed the agreement, the other party was not at liberty to refuse. It was a moral obligation on the part of Miss Robinson, which raised a sufficient consideration in law.

Personal chattels pass by delivery. In this case the slaves were delivered, and the contract executed: and a suit might be sustained either on the deed or the parol agreement. (a)

This suit was improperly instituted by the appellees: for the person who conducted their business brought the suit in the ordinary way, and made his own endorsement on the subpoena; and the Judge’s order was not made till three months after-wards.

*Wickham, on the same side, cited the case of Bolton v. the Bishop of Carlisle,(b) where the party set forth a deed the seal of which had been torn olí; but the Court held that, as the deed had had its operation, and the property had passed, the breaking off the seal could not divest the estate.

G-. K. Taylor, for the appellees. The right of the slaves to their freedom exists under the will of Miss Robinson. The question then is, whether the deed be a good one or not.

The will is a solemn act, and the Court will not presume that the testatrix intended to commit a fraudé This is not, however, of itself sufficient to prove the deed fraudulent; but is relied 8n as a circumstance.' Whiting is an executor named in the will. If the deed had not been fraudulent, and considered a mere nullity, she would not have appointed him.

But there are a variety of circumstances which prove the deed to be fraudulent. It cannot be presumed that Miss Robinson, in extreme old age, would have given thirty odd negroes absolutely for the mere consideration of a support for life. Knowing her qwn disposition, she would have taken care to preserve her own property; as Whiting might not have treated her as she liked. The sole purpose, therefore, for which she gave the power of attorney, dated the 17th of April, 1802, (the same day this deed was executed,) was that of getting the property into her possession; at the same time she inquired whether she had not a right to revoke it' by a subsequent act, and was informed that she had. The power of attorney was witnessed by her friends Lewis and Bay top; the deed, by Kerney only, whom she did not know; all her acquaintances knew of the existence of the power of attorney, but not of the deed* These are strong grounds to prove a fraud. The declarations of the overseer and his wife, that >Iiss Robinson said she had given all her negroes to Whiting are not entitled to credit; because those persons were found at Norfolk, aiding in carrying off the ne-groes. This deed, though executed in April, 1802, was not recorded till December, 1803;. and then it was proved in the County Court of Jefferson, many hundred miles from where the property was, and where the deed was executed. No person proves the delivery of any part of the property in the name of the rest. One witness only says, that when Whiting was going away, he heard Miss Robinson call Judy to him; but ¡redoes not say that she delivered her. *It is admitted that, when the deed was executed, it had no date. A

copy was afterwards taken by Whiting; and the dates filled up with the “15th of April, 1803,” the day after her death; but when the deed was carried to be recorded, it was dated the “18th of April, 1802,” which was on a Sunday, and on that day Whiting was on his journey to the upper country. Here is a concatenation of circumstances to prove a fraud; and his afterwards shipping the negroes off leaves no doubt of the fact.

With respect to the law of the case; there can be no doctrine more firmly established than that the insertion of the date made the deed void, (c) This is founded in good reason ; because the party ought not to be permitted to change his deed, (d) Modern decisions, indeed, have gone so far as to-say, that if the alteration be made by a stranger under any circumstances, the ob-ligee ought not to suffer by it. So, if the deed be lost or destroyed, as was the case reported by H. Blackstone.

But it is said that the parol agreement is binding. There is no evidence of any agreement, except what is derived from the answer; and that, stating the agreement by way of avoidance, is not to be considered as evidence in the cause.

On no principle whatever ought Whiting to be aided-in a Court of Equity. That Miss Robinson was in great distress is abundantly proved. She was turned out of doors by her relation Curtis, and her temper was such as to prevent her from being a welcome guest in the house of any of her acquaintances. In this situation Whiting took the advantage of her, and ought not therefore to have the benefit of his contract. (e) Here there was such an inad*183equacy of price as to prove clearly that Miss Robinson was imposed upon; and this according to a very high authority is sufficient grounds for setting aside the contract. (a)

Wickham, in reply. In this Court, the case now under consideration, will be decided not as a case of freedom, but in the same manner as if Miss Robinson had given her property to others, or had died intestate.

The will of the testatrix proves nothing: for, she being a party, her declarations could not be admissible testimony; nor is it competent to her to destroy her own deed. But the expressions of the will directing that the whole of the negroes which were her property should be emancipated, shews that she had doubts of her right to do so. The deed is in consideration of love and affection, and a '*maintenance for life. Strike out the latter part, and still the consideration would be good. She had quarrelled with all her relations, except Mr. Whiting. It was natural, therefore, that she should select this nephew as the object of her beneficence. In making the agreement, and afterwards accepting of the deed, Whiting broke no moral law, and cannot justly be chargeable with a fraud. The power of attorney, even if made on the same day, which seems very doubtful, is not evidence of fraud; because she might not wish to state the existence of the deed to Baytop and his family, as they were also her near relations.

It has been objected that the concealment of the deed by Miss Robinson and Whiting, and the circumstance of its being recorded in the County Court of Jefferson are evidences of fraud. — To these objections it may be answered, that Miss Robinson told three persons, at least, that she had given all her negroes to her nephew Whiting ; that he had them all in his possession, hired part of them out, and took the bonds in his own name. .Four witnesses depose to the effect of the deed; and the answer, being responsive to the bill, is also evidence of the fact. Even if Whiting had mentioned the deed himself, (as it is proven he did to one person,) could his declarations have been given in evidence? As to recording it in the County Court of Jefferson; — it was unnecessary to record it any where: but the true reason was, that the witness resided in that County, and could not be got to the County of Gloucester.

But another proof of fraud is said to be, that the deed had no date. It is generally observed that, when fraud is intended, the utmost caution is observed in drawing the instrument. The probability is, that a blank was left, not knowing when the deed would be executed, and that it was a mere omission in not filling it up at the time. — ■ But the date was inserted the day after her death ! — Is it probable, that he would have done so, if he had intended a fraud? The truth is, that he took a copy of the deed, and fixed the date, as on the day when he made the copy. There can be no doubt, from the testimony, but the old lady did execute the deed. She made such a bargain, as any person, in her situation, would be disposed to make.

It is argued that the insertion of the date made the deed void; and 11 Co. Pigot’s case, has been relied on to support that doctrine. If we go back to the days of Lord Coke, we shall find that, if the rats eat off a seal, the party, who executed the deed, might plead non est factum, and the title of the obligee would be forever lost. This ^doctrine has long since been exploded. The old practice was to declare on the original deed alone: but the modern practice, both in England and this country, is, to declare on a copy, whenever the original is either lost or destroyed.

But, says Mr. Taylor, in this case, the alteration was made by the party, and not by a stranger, as was the case in Bolton v. The Bishop of Carlisle. — It does not appear, from the report of that case by H. Blackstone, whether it was the act of the party or of a stranger. The date being filled up by the party makes no difference; as the law is now held to be the same in both cases.

It has been well observed by Mr. Warden, that, as the negroes, being personal chattels, would pass by parol, especially when accompanied by a delivery of possession; and there being an actual delivery, in this case, to Whiting, his title would be good, even if the deed were set aside.

As to the distress of Miss Robinson; no such thing appears in evidence. She lived in the genteelest families, and had the command of the profits of thirty negroes.— With respect to inadequacy of price, there is as little grounds for complaint. She did not want the negroes, after her death: she was then far advanced in years, had no child to whom she could leave them, had quarrelled with all her relations except Whiting, and in making the agreement with him, she had made a prudent bargain, by which she would be comfortably supported during her life, and would sooth her latter days with the reflection of having bestowed her bounty on one of her relations who most richly deserved it.

Curia advisare vult.

Saturday, July 11. The President pronounced the following as the unanimous opinion of the Court, “That it does not appear from the evidence or circumstances in this cause that any fraud or imposition was practised, or compulsion of any' sort used by the appellant in obtaining the deed of gift in the bill mentioned from Mary Robinson, who was his aunt, for conveying to him all her right and title in and to the ap-pellees, who were *then her own proper*slaves, but that on the contrary, the said deed was made by her own free will and consent, for the consideration therein mentioned, on the seventeenth day of April, 1802, and that no fraud was meditated by him in filling up the blank left for the date *of the said deed, after the same had been signed, sealed, and delivered by her to him in presence of witnesses, the date of the said deed not being a material part thereof, as it would have been good and sufficient to convey the said slaves without any date inserted therein, and might have been inconsiderately filled up *184by him, and that as he was and is fairly entitled to the said slaves under the said deed, and the repeated previous declarations of the said Mary, that she had given him the said slaves, fully proved by the depositions of sundry witnesses taken in this cause, she had no right or power to emancipate them by her will made after the execution of the said deed: that the decree of the Superior Court of Chancery adjudging and decreeing the deed aforesaid to be set aside as void, and the injunction to restrain the appellant from exercising any acts of ownership over the appellees, or otherwise intermeddling with them, to be perpetual, is erroneous: that an account should be made up and settled, by or before persons to be appointed by an order of the Court of Chancery for that purpose, of the hire and maintenance of the appellees by the sheriff or sheriffs of Norfolk, to whose care they were committed by the several orders of the County Court of Norfolk, the Superior Court of Chancery, aforesaid, and of this Court; and, if the hire exceeds the maintenance and expenses of the appellees, the overplus to be paid by the sheriff or sheriffs to the appellant; but, if the hire should be found deficient, then the deficiency to be paid by the appellant to the sheriff having custody of the appellees, who is, thereupon, or upon receiving sufficient security to be approved of by the said Superior Court of Chancery, to deliver the appellees to him as his proper slaves; therefore it is decreed and ordered that the decree aforesaid be reversed and annulled, that the said Court of Chancery do direct an account of the hire and expenses to be made, of which the appellant is to have notice; and, on payment made, or security given, as above directed, for any deficiency which may, on settlement of the account, appear to be due to the sheriffs, that the injunction be dissolved and that the appel-lees be delivered to the appellant as his proper slaves, and that the bill of the ap-pellees be dismissed.”

(a)

 1 Powel on Contr. 221.

(b)

 2 H. Black. 259.

(c)

 11 Co. 27, Henry Pig-ot’s case.

(d)

 See 5 Co. 119, Whelpflale’s case.

(e)

 2 Powel on Contr. 158.

(a)

 2 Powel on Contr. 158.