Wythepedia: The George Wythe Encyclopedia - User contributions [en]

Annuities on Lives

2015-04-14T14:10:10Z

Cjhunter:

{{DISPLAYTITLE:''Annuities on Lives: with Several Tables, Exhibiting at One View, the Values of Lives, for Different Rates in Interest''}}
===by Abraham de Moivre===
__NOTOC__
{{NoBookInfoBox
|shorttitle=Annuities on Lives
|commontitle=
|vol=
|author=Abraham de Moivre
|editor=
|trans=
|publoc=London
|publisher=
|year=1752
|edition=4th
|lang=
|set=
|pages=
|desc=
}}

Abraham de Moivre (1667-1754) was a French mathematician who made important contributions to trigonometry and probability. He was born in Vitry, France, to a Protestant family. In 1685, King Louis XIV revoked the Edict of Nantes (an order which gave Protestants religious freedom) and so de Moivre fled to London, England. In London, he became a close friend of [http://en.wikipedia.org/wiki/Isaac_Newton Sir Isaac Newton] and [http://en.wikipedia.org/wiki/Edmond_Halley Edmund Halley] (of Halley’s Comet fame). In 1697, de Moivre was elected to the [http://en.wikipedia.org/wiki/Royal_Society Royal Society] and in 1712 was appointed to settle the bitter dispute between Newton and [http://en.wikipedia.org/wiki/Gottfried_Wilhelm_Leibniz Gottfried Leibniz] over the priority for the systematization of calculus. Although de Moivre was a talented mathematician, he spent the majority of life his life in relative poverty as he was not able to obtain a position at an English university (due to his French citizenship).<ref>Eli Maor, ''Trigonometric Delights'' (Princeton: Princeton University Press, 2011), 80.</ref>

''Annuities on Lives'' was first published in 1725 and is primarily concerned with mortality statistics. In this work, de Moivre laid the mathematical foundations of the theory of annuities (fixed sums of money paid to a person on a yearly basis). He devised formulae based on a hypothesized law of mortality and constant rates of interest on money. <ref>[http://search.credoreference.com/content/entry/hdsb/moivre_abraham_de_1667_1754/0 “Moivre, Abraham De (1667-1754)”,] ''The Hutchinson Dictionary of Scientific Biography'' (Abington, United Kingdom: Helicon, 2014), accessed April 14, 2015.</ref>

==Evidence for Inclusion in Wythe's Library==

==References==
<references/>

==External Links==
Read this book in [http://books.google.com/books?id=id5bAAAAQAAJ&printsec=frontcover Google Books].

[[Category:Economics and Finance]]
[[Category:Titles in Wythe's Library]]

Annuities on Lives

2015-04-14T14:06:24Z

Cjhunter:

{{DISPLAYTITLE:''Annuities on Lives: with Several Tables, Exhibiting at One View, the Values of Lives, for Different Rates in Interest''}}
===by Abraham de Moivre===
__NOTOC__
{{NoBookInfoBox
|shorttitle=Annuities on Lives
|commontitle=
|vol=
|author=Abraham de Moivre
|editor=
|trans=
|publoc=London
|publisher=
|year=1752
|edition=4th
|lang=
|set=
|pages=
|desc=
}}

Abraham de Moivre (1667-1754) was a French mathematician who made important contributions to trigonometry and probability. He was born in Vitry, France, to a Protestant family. In 1685, King Louis XIV revoked the Edict of Nantes (an order which gave Protestants religious freedom) and so de Moivre fled to London, England. In London, he became a close friend of [http://en.wikipedia.org/wiki/Isaac_Newton Sir Isaac Newton] and [http://en.wikipedia.org/wiki/Edmond_Halley Edmund Halley] (of Halley’s Comet fame). In 1697, de Moivre was elected to the [http://en.wikipedia.org/wiki/Royal_Society Royal Society] and in 1712 was appointed to settle the bitter dispute between Newton and [http://en.wikipedia.org/wiki/Gottfried_Wilhelm_Leibniz Gottfried Leibniz] over the priority for the systematization of calculus. Although de Moivre was a talented mathematician, he spent the majority of life his life in relative poverty as he was not able to obtain a position at an English university (due to his French citizenship).<ref>Eli Maor, ''Trigonometric Delights'' (Princeton: Princeton University Press, 2011), 80.</ref>

''Annuities on Lives'' was first published in 1725 and is primarily concerned with mortality statistics. In this work, de Moivre laid the mathematical foundations of the theory of annuities (fixed sums of money paid to a person on a yearly basis). He devised formulae based on a hypothesized law of mortality and constant rates of interest on money. <ref>[http://search.credoreference.com/content/entry/hdsb/moivre_abraham_de_1667_1754/0 “Moivre, Abraham De (1667-1754)”,] ''The Hutchinson Dictionary of Scientific Biography'' (Abington, United Kingdom: Helicon, 2014), accessed April 14, 2015.

==Evidence for Inclusion in Wythe's Library==

==References==
<references/>

==External Links==
Read this book in [http://books.google.com/books?id=id5bAAAAQAAJ&printsec=frontcover Google Books].

[[Category:Economics and Finance]]
[[Category:Titles in Wythe's Library]]

Theophrastou Charaktēres Εthikoi

2015-04-14T12:48:22Z

Cjhunter:

{{DISPLAYTITLE:''Theophrastou Charaktēres Εthikoi = Theophrasti Characteres Ethici''}}
===by Theophrastus===
__NOTOC__
{{NoBookInfoBox
|shorttitle=Thephrastou Charakteres Ethikoi
|commontitle=
|vol=
|author=Theophrastus
|editor=
|trans=
|publoc=Glasgow
|publisher=
|year=1758
|edition=
|lang=
|set=
|pages=
|desc=
}}
Glasguae: Excudebant Robertus et Andreas Foulis, 1758.

[[Category:Philosophy]]
[[Category:Titles in Wythe's Library]]

[http://en.wikipedia.org/wiki/Theophrastus Theophrastus] (c.371-287 BCE) was a Greek philosopher and zoologist, and successor of [http://en.wikipedia.org/wiki/Aristotle Aristotle]. He was originally from Eresus, on Lesbos, and later moved to the Lyceum at Athens to study under Aristotle. Theophrastus developed upon Aristotle’s ideas and arrived at independent conclusions. Unlike Aristotle, he retained a belief in the divinity of the heavens and the eternity of the universe.<ref>Robert William Sharples, [http://www.oxfordreference.com/view/10.1093/acref/9780192801074.001.0001/acref-9780192801074-e-521 “Theophrastus,”] in ''Who’s Who in the Classical World'', ed. Simon Hornblower and Tony Spawforth (Oxford: Oxford University Press, 2003), accessed April 1, 2015.</ref>

Theophrastus’s Characters is his best-surviving work. It demonstrates Theophrastus’s interest in human behavior and includes a series of sketches of 30 more or less undesirable types of personality. A unique feature of the Characters is its focus on superficial behavioral irregularities. Historians are not certain about Characters’s purpose but have suggested that it may have been used to teach ethics, rhetoric or poetics, or may have been used as entertainment.<ref>William W. Fortenbaugh, “Theophrastus, the ''Characters'' and Rhetoric,” in ''Peripatetic Rhetoric After Aristotle'', ed. William W. Fortenbaugh et. al. (New Brunswick, NJ: Transaction Publishers, 1994), 16.</ref> Overall, Theophrastus is better known for his botanical and philosophical treatises.

==Evidence for Inclusion in Wythe's Library==
Listed in the [[Jefferson Inventory]] of [[Wythe's Library]] as "Theophrasti careteres. Gr. Lat. 12mo. Foulis" This was one of the titles kept by [[Thomas Jefferson]]. Jefferson may have sold it the Library of Congress in 1815. Both [http://www.librarything.com/profile/GeorgeWythe George Wythe's Library]<ref>''LibraryThing'', s. v. [http://www.librarything.com/profile/GeorgeWythe "Member: George Wythe"], accessed on February 2, 2015.</ref> on LibraryThing and the [https://digitalarchive.wm.edu/handle/10288/13433 Brown Bibliography]<ref> Bennie Brown, "The Library of George Wythe of Williamsburg and Richmond," (unpublished manuscript, May, 2012) Microsoft Word file. Earlier edition available at: https://digitalarchive.wm.edu/handle/10288/13433</ref> list the 1758 edition published in Glasgow based on the Jefferson copy at the Library of Congress.<ref>E. Millicent Sowerby, ''Catalogue of the Library of Thomas Jefferson'', 2nd ed. (Charlottesville: University Press of Virginia, 1983), 2:382 [no.2152].</ref> While the copy still exists, it includes no definitive ties to Wythe. As of yet, the Wolf Law Library has been unable to procure a copy of ''Theophrastou Charaktēres Εthikoi''.

==Description of the Wolf Law Library's copy==
Bound in contemporary calf with blind frames to boards, rebacked retaining spines with raised bands and lettering pieces. Title page signed "Geo: Hayward, Bo<sup>t</sup>. of W<sup>m</sup>. Goldsborough 1763," "W<sup>m</sup>. Goldsborough 1734" and "<illegible> 1704." Purchased from The Lawbook Exchange, Ltd.

View the record for this book in [https://catalog.swem.wm.edu/law/Record/2949723 William & Mary's online catalog.]
==References==
<references/>

Aristophanis Comoediae (1783)

2015-04-14T12:42:29Z

Cjhunter:

{{DISPLAYTITLE:''Aristophanis Comoediae (1783)''}}
===by Aristophanes===
__NOTOC__
{{NoBookInfoBox
|shorttitle=Aristophanis Comoediae (1783)
|commontitle=
|vol=
|author=Aristophanes
|editor=
|trans=
|publoc=
|publisher=Treuttel
|year=1783
|edition=
|lang=
|set=
|pages=
|desc=
}}
Argentorati: Sumtibus J. G. Treuttel, 1783.

[http://en.wikipedia.org/wiki/Aristophanes Aristophanes] (c.450/460-385 BCE) was one of the “leading comic dramatists” of Athens.<ref>Alan Sommerstein, [http://search.credoreference.com/content/entry/wileyenanh/aristophanes/0 “Aristophanes,”] ''The Encyclopedia of Ancient History'' (Hoboken: Wiley, 2012), accessed March 24, 2015.</ref> He was considered a master of [http://en.wikipedia.org/wiki/Ancient_Greek_comedy “Old Comedy”] in his own time and remains popular today. Old Comedy has several distinguishing features including: an invented, original plot (in contrast to Greek tragedy which was based on well-known myths), and a fantastical setting which allowed the hero to accomplish the impossible.<ref>Lois Spatz, ''Aristophanes'' (Boston, Twayne Publishers, 1978), 24.</ref> Aristophanes is believed to have written 40 plays, of which 11 survive. The plays are broad in their subject matter and examine contemporary Athenian politics (including the Peloponnesian War), philosophy, and the institutions of democracy including the jury system. Very little is known for certain about Aristophanes’ life beyond the date of production of his plays.<ref>Kenneth McLeish and Trevor R. Griffiths, ''A Guide to Greek Theatre and Drama'' (London: Methuen Drama, 2003), 195.</ref>

''Aristophanis Comodiae'' contains Aristophanes’s 11 surviving plays, and fragments of others. These plays are: ''Acharnians'', ''Knights'', ''Clouds'', ''Wasps'', ''Peace'', ''Birds'', ''Lysistrata'', ''Women Celebrating the Thesmophoria'', ''Frogs'', ''The Assemblywomen'', and ''Wealth''.

==Evidence for Inclusion in Wythe's Library==

==References==
<references/>
==External Links==

[[Category:Greek Literature]]
[[Category:Titles in Wythe's Library]]

Aristophanis Comoediae (1783)

2015-04-14T12:40:29Z

Cjhunter:

{{DISPLAYTITLE:''Aristophanis Comoediae (1783)''}}
===by Aristophanes===
__NOTOC__
{{NoBookInfoBox
|shorttitle=Aristophanis Comoediae (1783)
|commontitle=
|vol=
|author=Aristophanes
|editor=
|trans=
|publoc=
|publisher=Treuttel
|year=1783
|edition=
|lang=
|set=
|pages=
|desc=
}}
Argentorati: Sumtibus J. G. Treuttel, 1783.

[http://en.wikipedia.org/wiki/Aristophanes Aristophanes] (c.450/460-385 BCE) was one of the “leading comic dramatists” of Athens.<ref>Alan Sommerstein, [http://search.credoreference.com/content/entry/wileyenanh/aristophanes/0 “Aristophanes,”] ''The Encyclopedia of Ancient History'' (Hoboken: Wiley, 2012), accessed March 24, 2015.</ref> He was considered a master of [http://en.wikipedia.org/wiki/Ancient_Greek_comedy “Old Comedy”] in his own time and remains popular today. Old Comedy has several distinguishing features including: an invented, original plot (in contrast to Greek tragedy which was based on well-known myths), and a fantastical setting which allowed the hero to accomplish the impossible.<ref>Lois Spatz, ''Aristophanes'' (Boston, Twayne Publishers, 1978), 24.</ref> Aristophanes is believed to have written 40 plays, of which 11 survive. The plays are broad in their subject matter and examine contemporary Athenian politics (including the Peloponnesian War), philosophy, and the institutions of democracy including the jury system. Very little is known for certain about Aristophanes’ life beyond the date of production of his plays.<ref>Kenneth McLeish and Trevor R. Griffiths, ''A Guide to Greek Theatre and Drama'' (London: Methuen Drama, 2003), 195.</ref>
''Aristophanis Comodiae'' contains Aristophanes’s 11 surviving plays, and fragments of others. These plays are: ''Acharnians'', ''Knights'', ''Clouds'', ''Wasps'', ''Peace'', ''Birds'', ''Lysistrata'', ''Women Celebrating the Thesmophoria'', ''Frogs'', ''The Assemblywomen'', and ''Wealth''.

==Evidence for Inclusion in Wythe's Library==

==References==
<references/>
==External Links==

[[Category:Greek Literature]]
[[Category:Titles in Wythe's Library]]

Aristophanis Comoediae (1783)

2015-04-14T12:34:46Z

Cjhunter:

{{DISPLAYTITLE:''Aristophanis Comoediae (1783)''}}
===by Aristophanes===
__NOTOC__
{{NoBookInfoBox
|shorttitle=Aristophanis Comoediae (1783)
|commontitle=
|vol=
|author=Aristophanes
|editor=
|trans=
|publoc=
|publisher=Treuttel
|year=1783
|edition=
|lang=
|set=
|pages=
|desc=
}}
Argentorati: Sumtibus J. G. Treuttel, 1783.

[http://en.wikipedia.org/wiki/Aristophanes Aristophanes] (c.450/460-385 BCE) was one of the “leading comic dramatists” of Athens.<ref>Alan Sommerstein, [http://search.credoreference.com/content/entry/wileyenanh/aristophanes/0 “Aristophanes,”] ''The Encyclopedia of Ancient History'' (Hoboken: Wiley, 2012), accessed March 24, 2015.</ref> He was considered a master of “Old Comedy” in his own time and remains popular today. Old Comedy has several distinguishing features including: an invented, original plot (in contrast to Greek tragedy which was based on well-known myths), and a fantastical setting which allowed the hero to accomplish the impossible. Aristophanes is believed to have written 40 plays, of which 11 survive. The plays are broad in their subject matter and examine contemporary Athenian politics (including the Peloponnesian War), philosophy, and the institutions of democracy including the jury system. Very little is known for certain about Aristophanes’ life beyond the date of production of his plays.
Aristophanis Comodiae contains Aristophanes’s 11 surviving plays, and fragments of others. These plays are: Acharnians, Knights, Clouds, Wasps, Peace, Birds, Lysistrata, Women Celebrating the Thesmophoria, Frogs, The Assemblywomen, and Wealth.

==Evidence for Inclusion in Wythe's Library==

==References==
<references/>
==External Links==

[[Category:Greek Literature]]
[[Category:Titles in Wythe's Library]]

Aristophanis Comoediae (1783)

2015-04-14T12:33:53Z

Cjhunter:

{{DISPLAYTITLE:''Aristophanis Comoediae (1783)''}}
===by Aristophanes===
__NOTOC__
{{NoBookInfoBox
|shorttitle=Aristophanis Comoediae (1783)
|commontitle=
|vol=
|author=Aristophanes
|editor=
|trans=
|publoc=
|publisher=Treuttel
|year=1783
|edition=
|lang=
|set=
|pages=
|desc=
}}
Argentorati: Sumtibus J. G. Treuttel, 1783.

[http://en.wikipedia.org/wiki/Aristophanes Aristophanes] (c.450/460-385 BCE) was one of the “leading comic dramatists” of Athens.<ref>Alan Sommerstein, “Aristophanes,” ''The Encyclopedia of Ancient History'' (Hoboken: Wiley, 2012), accessed March 24, 2015.</ref> He was considered a master of “Old Comedy” in his own time and remains popular today. Old Comedy has several distinguishing features including: an invented, original plot (in contrast to Greek tragedy which was based on well-known myths), and a fantastical setting which allowed the hero to accomplish the impossible. Aristophanes is believed to have written 40 plays, of which 11 survive. The plays are broad in their subject matter and examine contemporary Athenian politics (including the Peloponnesian War), philosophy, and the institutions of democracy including the jury system. Very little is known for certain about Aristophanes’ life beyond the date of production of his plays.
Aristophanis Comodiae contains Aristophanes’s 11 surviving plays, and fragments of others. These plays are: Acharnians, Knights, Clouds, Wasps, Peace, Birds, Lysistrata, Women Celebrating the Thesmophoria, Frogs, The Assemblywomen, and Wealth.

==Evidence for Inclusion in Wythe's Library==

==References==

==External Links==

[[Category:Greek Literature]]
[[Category:Titles in Wythe's Library]]

Aristophanis Comoediae (1783)

2015-04-14T12:32:43Z

Cjhunter:

{{DISPLAYTITLE:''Aristophanis Comoediae (1783)''}}
===by Aristophanes===
__NOTOC__
{{NoBookInfoBox
|shorttitle=Aristophanis Comoediae (1783)
|commontitle=
|vol=
|author=Aristophanes
|editor=
|trans=
|publoc=
|publisher=Treuttel
|year=1783
|edition=
|lang=
|set=
|pages=
|desc=
}}
Argentorati: Sumtibus J. G. Treuttel, 1783.

[http://en.wikipedia.org/wiki/Aristophanes Aristophanes] (c.450/460-385 BCE) was one of the “leading comic dramatists” of Athens. He was considered a master of “Old Comedy” in his own time and remains popular today. Old Comedy has several distinguishing features including: an invented, original plot (in contrast to Greek tragedy which was based on well-known myths), and a fantastical setting which allowed the hero to accomplish the impossible. Aristophanes is believed to have written 40 plays, of which 11 survive. The plays are broad in their subject matter and examine contemporary Athenian politics (including the Peloponnesian War), philosophy, and the institutions of democracy including the jury system. Very little is known for certain about Aristophanes’ life beyond the date of production of his plays.
Aristophanis Comodiae contains Aristophanes’s 11 surviving plays, and fragments of others. These plays are: Acharnians, Knights, Clouds, Wasps, Peace, Birds, Lysistrata, Women Celebrating the Thesmophoria, Frogs, The Assemblywomen, and Wealth.

==Evidence for Inclusion in Wythe's Library==

==References==

==External Links==

[[Category:Greek Literature]]
[[Category:Titles in Wythe's Library]]

Law of Conveyances

2015-03-24T13:37:19Z

Cjhunter:

{{DISPLAYTITLE:''Law of Conveyances''}}
<big>''The Law of Conveyances, Shewing the Natures, Kinds, and Effects, of All Manner of Assurances, with the Manner of Their Several Executions and Operations, also Directions to Sue Out and Prosecute All Manner of Writs, of Extent, Elegit, and Judiciall Writs upon Statutes, Recognizances, Judgments, &c''</big>
===by John Herne===
__NOTOC__
{{NoBookInfoBox
|shorttitle=The Law of Conveyances
|commontitle=
|vol=
|author=John Herne
|editor=
|trans=
|publoc=London
|publisher=T.R.
|year=1657
|edition=
|lang=
|set=
|pages=
|desc=
}}
London: Printed by T.R. for Hen. Twyford, and Tho. Dring ..., 1657.

John Herne (fl. 1636-1660), likely son of John Herne, a prominent barrister in the 17th century, entered [https://en.wikipedia.org/wiki/Lincoln%27s_Inn Lincoln's Inn] on February 11, 1636.<ref>D. A. Orr, [http://www.oxforddnb.com/view/article/13085 "Herne , John (c.1593–1649)"], ''Oxford Dictionary of National Biography'', (Oxford: Oxford University Press, 2004), accessed March 3, 2015.</ref> He translated in 1659 ''The learned reading of John Herne esq., late of the honourable society of Lincoln's Inn, upon the statute of 23 H. 8, cap. 3, concerning commissions of sewers.''<ref>Ibid.</ref> As well as published a collection of precedents, including ''The Pleader'', ''The Law of Conveyances'', ''The Modern Assurancer'', and ''The Law of Charitable Uses''.<ref>Ibid.</ref> He is likely buried under a monument at Ameringhall, in the County of Norfolk, England.

The Law of Conveyances was published in 8 volumes in 1658.<ref>Ibid.</ref> A compilation of tables, cases, and other relevant information, The Law of Conveyances assembles the different aspects of the law on conveyances into a single work, as opposed to their previous status as dispersed in large books of law. His compilation includes information on how to transfer assurances, how to sue and prosecute writs of extent, elegit, and judicial writs upon statutes, recognizances, and judgments. A second edition was published to correct defects in the previous work.<ref>John Herne, [http://gateway.proquest.com/openurl?ctx_ver=Z39.88-2003&res_id=xri:eebo&rft_id=xri:eebo:citation:99899513 ''The Law of Conveyances''] (London: T.R. for Hen. Twyford, and Tho. Dring, 1658), accessed March 3, 2015.</ref>

==References==
<references />
==External Links==

==Evidence for Inclusion in Wythe's Library==

[[Category:Commercial Law]]
[[Category:Titles in Wythe's Library]]

Clerks Guide

2015-03-17T13:54:09Z

Cjhunter:

{{DISPLAYTITLE:''Clerks Guide''}}
<big>''The Clerks Guide: Leading into Three Parts''</big>
===by Sir Thomas Manley===
__NOTOC__
{{NoBookInfoBox
|shorttitle=The Clerks Guide: Leading into Three Parts
|commontitle=
|vol=
|author=Sir Thomas Manley
|editor=
|trans=
|publoc=London
|publisher=John Streater
|year=1672
|edition=
|lang=
|set=
|pages=
|desc=
}}
London : Printed by John Streater, Henry Twyford, and E. Flesher, assigns of Richard Atkins and Edward Atkins, Esquires, 1672.

Thomas Manley (c. 1628-1676), an English legal and political writer, was admitted to the [http://en.wikipedia.org/wiki/Middle_Temple Middle Temple] on February 6, 1655, and called to the bar on January 24, 1673. Son of Thomas Manley, a clerk of the kitchen in Charles I’s household, Manley may have been baptized at St. Margaret’s in Westminster on November 8, 1627. As early as 1650, Manley likely had already published juvenilia. He married his wife, Anne, without his father’s permission and was therefore left only a small sum. After his admittance to the Middle Temple, Manley was appointed library in May 1655, but by June 1658, Manley had been padlocked out of the library and dismissed of his position. Because he did not have to perform the usual formalities and ceremonies when called to the bar, Manley has been erroneously misrepresented to have been appointed to the King ’s Counsel.).<ref>C.E.A Cheesman, "[http://www.oxforddnb.com/view/article/17941 Manley, Thomas (c.1628-1676)]," ''Oxford Dictionary of National Biography'' (Oxford University Press, 2004- ), accessed March 17, 2015.</ref> He entered the scrivener’s service in 1658, which led to the publication of some of his works.<ref>Frank T. Melton, "[http://www.jstor.org/stable/3742955 Absentee Land Management in Seventeenth-Century England]," ''Agricultural History'' 52, no. 1 (Jan. 1978): 149, accessed March 17, 2015.</ref>

Published in 1663, Manley’s first legal publication was The Sollicitor, a handbook based on his work as a scrivener.<ref>Cheesman, "Manley, Thomas (c.1628-1676)"; Melton, "Absentee Land Management in Seventeenth Century England," 149.</ref> Manley also released volumes 12 and 13 for an abridgement of Coke’s reports, as well as a supplement to Edward Trotman’s earlier abridged volumes.<ref>Cheesman, "Manley, Thomas (c.1628-1676)."</ref> Manley updated John Cowell’s The Interpreter of Words and Terms, originally published 1607, keeping with Cowell’s original purpose of favoring the importance of knowledge of the civil law. <ref>Cheesman, "Manley, Thomas (c.1628-1676)"; Gary L. McDowell, "[http://www.jstor.org/stable/3113848 The Politics of Meaning: Law Dictionaries and the Liberal Tradition of Interpretation]," ''The American Journal of Legal History'' 44, no. 3 (Jul. 2000): 265, accessed March 17, 2015.</ref> In 1676, Manley published an appendix to Thomas Wentworth’s Office and Duty of Executors. Manley also authored numerous political books, including works which illustrated his isolationist economic views.<ref>Cheesman, "Manley, Thomas (c.1628-1676)."</ref>

The Clerk’s Guide, published in 1672, is a book of forms that Manley annotated.<ref>Ibid.</ref> In his preface to the work, Manley wrote about the surplus of writings on clerkships which led “the clerk in a maze, [rather] than to lead his client in a safe and well-beaten path.” <ref>Thomas Manley, ''The Clerks Guide'' (London, 1672).</ref>This work, Manley emphasized, was not just repeating what had already been produced, but was instead getting rid of what was useless, polishing what was unnecessary, and adding what was profitable in the profession.<ref>Ibid.</ref> This work has four parts, each addressing areas necessary for clerks. Part 1 addresses indentures, leases, and the like, while part 2 addresses letters of attorney, warrants of attorney, mortgages, licenses, and etcetera. Part 3 regards bills, answers, replications, and rejoynders in chancery, with a fourth part added by Manley to address fines, recoveries, statutes, recognisances, and judgments.<ref>Ibid.</ref>

==Evidence for Inclusion in Wythe's Library==

==References==
<references />
==External Links==
See bookplate in [https://books.google.com/books?id=xKI7nQEACAAJ&dq=thomas+manley+The+Clerk%27s+Guide:+Leading+into+Three+Parts+Streater,1672 Google Books]

[[Category:Civil Procedure]]
[[Category:Titles in Wythe's Library]]

Clerks Guide

2015-03-17T13:33:00Z

Cjhunter:

{{DISPLAYTITLE:''Clerks Guide''}}
<big>''The Clerks Guide: Leading into Three Parts''</big>
===by Sir Thomas Manley===
__NOTOC__
{{NoBookInfoBox
|shorttitle=The Clerks Guide: Leading into Three Parts
|commontitle=
|vol=
|author=Sir Thomas Manley
|editor=
|trans=
|publoc=London
|publisher=John Streater
|year=1672
|edition=
|lang=
|set=
|pages=
|desc=
}}
London : Printed by John Streater, Henry Twyford, and E. Flesher, assigns of Richard Atkins and Edward Atkins, Esquires, 1672.

Thomas Manley (c. 1628-1676), an English legal and political writer, was admitted to the [http://en.wikipedia.org/wiki/Middle_Temple Middle Temple] on February 6, 1655, and called to the bar on January 24, 1673. Son of Thomas Manley, a clerk of the kitchen in Charles I’s household, Manley may have been baptized at St. Margaret’s in Westminster on November 8, 1627. As early as 1650, Manley likely had already published juvenilia. He married his wife, Anne, without his father’s permission and was therefore left only a small sum. After his admittance to the Middle Temple, Manley was appointed library in May 1655, but by June 1658, Manley had been padlocked out of the library and dismissed of his position. Because he did not have to perform the usual formalities and ceremonies when called to the bar, Manley has been erroneously misrepresented to have been appointed to the King ’s Counsel.).<ref>C.E.A Cheesman, "[http://www.oxforddnb.com/view/article/17941 Manley, Thomas (c.1628-1676)]," ''Oxford Dictionary of National Biography'' (Oxford University Press, 2004- ), accessed March 17, 2015.</ref> He entered the scrivener’s service in 1658, which led to the publication of some of his works.<ref>Frank T. Melton, "[http://www.jstor.org/stable/3742955 Absentee Land Management in Seventeenth-Century England]," ''Agricultural History'' 52, no. 1 (Jan. 1978): 149, accessed March 17, 2015.</ref>

Published in 1663, Manley’s first legal publication was The Sollicitor, a handbook based on his work as a scrivener.<ref>Cheesman, "Manley, Thomas (c.1628-1676)"; Melton, "Absentee Land Management in Seventeenth Century England," 149.</ref> Manley also released volumes 12 and 13 for an abridgement of Coke’s reports, as well as a supplement to Edward Trotman’s earlier abridged volumes.<ref>Cheesman, "Manley, Thomas (c.1628-1676)."</ref> Manley updated John Cowell’s The Interpreter of Words and Terms, originally published 1607, keeping with Cowell’s original purpose of favoring the importance of knowledge of the civil law. <ref>Cheesman, "Manley, Thomas (c.1628-1676)"; Gary L. McDowell, "[http://www.jstor.org/stable/3113848 The Politics of Meaning: Law Dictionaries and the Liberal Tradition of Interpretation]," ''The American Journal of Legal History'' 44, no. 3 (Jul. 2000): 265, accessed March 17, 2015.</ref> In 1676, Manley published an appendix to Thomas Wentworth’s Office and Duty of Executors. Manley also authored numerous political books, including works which illustrated his isolationist economic views.<ref>Cheesman, "Manley, Thomas (c.1628-1676)."</ref>

The Clerk’s Guide, published in 1672, is a book of forms that Manley annotated.<ref>Ibid.</ref> In his preface to the work, Manley wrote about the surplus of writings on clerkships which led “the clerk in a maze, [rather] than to lead his client in a safe and well-beaten path.” <ref>Thomas Manley, ''The Clerk's Guide'' (London, 1672).</ref>This work, Manley emphasized, was not just repeating what had already been produced, but was instead getting rid of what was useless, polishing what was unnecessary, and adding what was profitable in the profession.<ref>Ibid.</ref> This work has four parts, each addressing areas necessary for clerks. Part 1 addresses indentures, leases, and the like, while part 2 addresses letters of attorney, warrants of attorney, mortgages, licenses, and etcetera. Part 3 regards bills, answers, replications, and rejoynders in chancery, with a fourth part added by Manley to address fines, recoveries, statutes, recognisances, and judgments.<ref>Ibid.</ref>

==Evidence for Inclusion in Wythe's Library==

==References==
<references />
==External Links==
See bookplate in [https://books.google.com/books?id=xKI7nQEACAAJ&dq=thomas+manley+The+Clerk%27s+Guide:+Leading+into+Three+Parts+Streater,1672 Google Books]

[[Category:Civil Procedure]]
[[Category:Titles in Wythe's Library]]

Clerks Guide

2015-03-17T13:27:34Z

Cjhunter:

{{DISPLAYTITLE:''Clerks Guide''}}
<big>''The Clerks Guide: Leading into Three Parts''</big>
===by Sir Thomas Manley===
__NOTOC__
{{NoBookInfoBox
|shorttitle=The Clerks Guide: Leading into Three Parts
|commontitle=
|vol=
|author=Sir Thomas Manley
|editor=
|trans=
|publoc=London
|publisher=John Streater
|year=1672
|edition=
|lang=
|set=
|pages=
|desc=
}}
London : Printed by John Streater, Henry Twyford, and E. Flesher, assigns of Richard Atkins and Edward Atkins, Esquires, 1672.

Thomas Manley (c. 1628-1676), an English legal and political writer, was admitted to the [http://en.wikipedia.org/wiki/Middle_Temple Middle Temple] on February 6, 1655, and called to the bar on January 24, 1673. Son of Thomas Manley, a clerk of the kitchen in Charles I’s household, Manley may have been baptized at St. Margaret’s in Westminster on November 8, 1627. As early as 1650, Manley likely had already published juvenilia. He married his wife, Anne, without his father’s permission and was therefore left only a small sum. After his admittance to the Middle Temple, Manley was appointed library in May 1655, but by June 1658, Manley had been padlocked out of the library and dismissed of his position. Because he did not have to perform the usual formalities and ceremonies when called to the bar, Manley has been erroneously misrepresented to have been appointed to the King ’s Counsel.).<ref>C.E.A Cheesman, "[http://www.oxforddnb.com/view/article/17941 Manley, Thomas (c.1628-1676)]," ''Oxford Dictionary of National Biography'' (Oxford University Press, 2004- ), accessed March 17, 2015.</ref> He entered the scrivener’s service in 1658, which led to the publication of some of his works.<ref>Frank T. Melton, "[http://www.jstor.org/stable/3742955 Absentee Land Management in Seventeenth-Century England]," ''Agricultural History'' 52, no. 1 (Jan. 1978): 149, accessed March 17, 2015.</ref>

Published in 1663, Manley’s first legal publication was The Sollicitor, a handbook based on his work as a scrivener.<ref>Cheesman, "Manley, Thomas (c.1628-1676)"; Melton, "Absentee Land Management in Seventeenth Century England," 149.</ref> Manley also released volumes 12 and 13 for an abridgement of Coke’s reports, as well as a supplement to Edward Trotman’s earlier abridged volumes.<ref>Cheesman, "Manley, Thomas (c.1628-1676)."</ref> Manley updated John Cowell’s The Interpreter of Words and Terms, originally published 1607, keeping with Cowell’s original purpose of favoring the importance of knowledge of the civil law. <ref>Cheesman, "Manley, Thomas (c.1628-1676)"; Gary L. McDowell, "[http://www.jstor.org/stable/3113848 The Politics of Meaning: Law Dictionaries and the Liberal Tradition of Interpretation]," ''The American Journal of Legal History'' 44, no. 3 (Jul. 2000): 265, accessed March 17, 2015.</ref> In 1676, Manley published an appendix to Thomas Wentworth’s Office and Duty of Executors. Manley also authored numerous political books, including works which illustrated his isolationist economic views.<ref>Cheesman, "Manley, Thomas (c.1628-1676)."</ref>

The Clerk’s Guide, published in 1672, is a book of forms that Manley annotated.<ref>Ibid.</ref> In his preface to the work, Manley wrote about the surplus of writings on clerkships which led “the clerk in a maze, [rather] than to lead his client in a safe and well-beaten path.” <ref>Thomas Manley, ''The Clerk's Guide'' (London, 1672).</ref>This work, Manley emphasized, was not just repeating what had already been produced, but was instead getting rid of what was useless, polishing what was unnecessary, and adding what was profitable in the profession.<ref>Ibid.</ref> This work has four parts, each addressing areas necessary for clerks. Part 1 addresses indentures, leases, and the like, while part 2 addresses letters of attorney, warrants of attorney, mortgages, licenses, and etcetera. Part 3 regards bills, answers, replications, and rejoynders in chancery, with a fourth part added by Manley to address fines, recoveries, statutes, recognisances, and judgments.<ref>Ibid.</ref>

==Evidence for Inclusion in Wythe's Library==

==References==

==External Links==
See bookplate in [https://books.google.com/books?id=xKI7nQEACAAJ&dq=thomas+manley+The+Clerk%27s+Guide:+Leading+into+Three+Parts+Streater,1672 Google Books]

[[Category:Civil Procedure]]
[[Category:Titles in Wythe's Library]]

Law of Conveyances

2015-03-04T19:21:38Z

Cjhunter:

{{DISPLAYTITLE:''Law of Conveyances''}}
<big>''The Law of Conveyances, Shewing the Natures, Kinds, and Effects, of All Manner of Assurances, with the Manner of Their Several Executions and Operations, also Directions to Sue Out and Prosecute All Manner of Writs, of Extent, Elegit, and Judiciall Writs upon Statutes, Recognizances, Judgments, &c''</big>
===by John Herne===
__NOTOC__
{{NoBookInfoBox
|shorttitle=The Law of Conveyances
|commontitle=
|vol=
|author=John Herne
|editor=
|trans=
|publoc=London
|publisher=T.R.
|year=1657
|edition=
|lang=
|set=
|pages=
|desc=
}}
London: Printed by T.R. for Hen. Twyford, and Tho. Dring ..., 1657.

John Herne (fl. 1636-1660), likely son of John Herne, a prominent barrister in the 17th century, entered [https://en.wikipedia.org/wiki/Lincoln%27s_Inn Lincoln's Inn] on February 11, 1636.<ref>D. A. Orr, [http://www.oxforddnb.com/view/article/13085 "Herne , John (c.1593–1649)"], ''Oxford Dictionary of National Biography'', (Oxford: Oxford University Press, 2004),accessed March 3, 2015.</ref> He translated in 1659 ''The learned reading of John Herne esq., late of the honourable society of Lincoln's Inn, upon the statute of 23 H. 8, cap. 3, concerning commissions of sewers.''<ref>Ibid.</ref> As well as published a collection of precedents, including ''The Pleader'', ''The Law of Conveyances'', ''The Modern Assurancer'', and ''The Law of Charitable Uses''.<ref>Ibid.</ref> He is likely buried under a monument at Ameringhall, in the County of Norfolk, England.

The Law of Conveyances was published in 8 volumes in 1658.<ref>Ibid.</ref> A compilation of tables, cases, and other relevant information, The Law of Conveyances assembles the different aspects of the law on conveyances into a single work, as opposed to their previous status as dispersed in large books of law. His compilation includes information on how to transfer assurances, how to sue and prosecute writs of extent, elegit, and judicial writs upon statutes, recognizances, and judgments. A second edition was published to correct defects in the previous work.<ref>John Herne, [http://gateway.proquest.com/openurl?ctx_ver=Z39.88-2003&res_id=xri:eebo&rft_id=xri:eebo:citation:99899513 ''The Law of Conveyances''] (London: T.R. for Hen. Twyford, and Tho. Dring, 1658), accessed March 3, 2015.</ref>

==References==
<references />
==External Links==

==Evidence for Inclusion in Wythe's Library==

[[Category:Commercial Law]]
[[Category:Titles in Wythe's Library]]

Reports of Divers Special Cases

2015-03-04T19:16:50Z

Cjhunter:

{{DISPLAYTITLE: ''Reports of Divers Special Cases''}}
<big>''Reports of Divers Special Cases Adjudged in the Courts of King's bench, Common pleas, and Exchequer, in the reign of King Charles II.''</big>
===by Sir Thomas Raymond===
__NOTOC__
{{NoBookInfoBox
|shorttitle=Reports of Divers Special Cases
|commontitle=
|vol=
|author=Sir Thomas Raymond
|editor=
|trans=
|publoc=London, In the Savoy
|publisher=Printed by H. Lintot (assignee of E. Sayer) for D. Browne [etc.]
|year=1743
|edition=
|lang=
|set=
|pages=
|desc=
}}

Raymond’s case reporter was first published in 1696.<ref>Stuart Handley, [http://www.oxforddnb.com/view/article/23208 "Raymond, Sir Thomas (1626/7–1683)"], ''Oxford Dictionary of National Biography'', (Oxford: Oxford University Press, 2004), accessed March 4, 2015.</ref> The version Wythe owned was the second edition, which was first printed in London in 1743.<ref>Ibid.</ref> Little commentary exists on the quality of the case reports, but they are cited to by several court opinions, including early U.S. court decisions. One such decision is ''Georgia v. Brailford'', which is one of the earliest [http://en.wikipedia.org/w/index.php?title=Supreme_Court_of_the_United_States&oldid=649734970 U.S. Supreme Court] decisions and the first involving a jury.<ref>''The Documentary History of the Supreme Court of the United States, 1789-1800'', ed. Maeva Marcus et. al., vol. 6, ''Cases: 1790-1795'' (New York: Columbia University Press, 1998), 73.</ref> The court opinion there cited to ''Whaley v. Anderson'', specifically to precedent relating to forfeiture of property by a joint tenant.<ref>Ibid.</ref> Another Supreme Court case to cite Raymond is ''MacDonogh v. Dannery'', a 1796 case involving a maritime dispute between England and France.<ref>''The Documentary History of the Supreme Court of the United States, 1789-1800'', ed. Maeva Marcus et. al., vol. 7, ''Cases: 1796-1797'' (New York: Columbia University Press, 2003), 38.</ref> The court opinion erroneously cites a case from Comberbach’s Reports, but meant to cite ''Hughs v. Cornelius''.<ref>Ibid.</ref> ''Hughs'' provides precedent on neutral jurisdiction over prize disputes between two belligerent nations.<ref>Ibid.</ref>

Author:

Sir Thomas Raymond was a judge of the [http://en.wikipedia.org/w/index.php?title=Court_of_King%27s_Bench_(England)&oldid=603467054 King’s Bench] in the late seventeenth century. He entered [http://en.wikipedia.org/w/index.php?title=Gray%27s_Inn&oldid=632785615 Gray’s Inn] in 1645, one year before he graduated from [http://en.wikipedia.org/w/index.php?title=Christ%27s_College,_Cambridge&oldid=649716045 Christ’s College, Cambridge]. He was first called to the bar in 1651 and joined the sarjeants of law in 1677. He was elevated to the bench as a baron of the exchequer in 1679 and received a knighthood later that year. He was transferred to the common pleas in February of 1680 and to the King’s Bench two months later. He died in 1683 and was survived by his son Robert, who would eventually serve on the King’s Bench as chief justice.<ref>Handley,"Raymond, Sir Thomas (1626/7–1683)".</ref>

==Evidence for Inclusion in Wythe's Library==

==References==
<references />

==External Links==
Read this book in [http://books.google.com/books?id=fO56tgAACAAJ&dq=Raymond+Thomas+Reports+of+Divers+Special+Cases+Adjudged Google Books]

[[Category:Case Reports]]
[[Category:Common Pleas Reports]]
[[Category:Titles in Wythe's Library]]

Reports of Divers Special Cases

2015-03-04T19:15:29Z

Cjhunter:

{{DISPLAYTITLE: ''Reports of Divers Special Cases''}}
<big>''Reports of Divers Special Cases Adjudged in the Courts of King's bench, Common pleas, and Exchequer, in the reign of King Charles II.''</big>
===by Sir Thomas Raymond===
__NOTOC__
{{NoBookInfoBox
|shorttitle=Reports of Divers Special Cases
|commontitle=
|vol=
|author=Sir Thomas Raymond
|editor=
|trans=
|publoc=London, In the Savoy
|publisher=Printed by H. Lintot (assignee of E. Sayer) for D. Browne [etc.]
|year=1743
|edition=
|lang=
|set=
|pages=
|desc=
}}

Raymond’s case reporter was first published in 1696.<ref>Stuart Handley, [http://www.oxforddnb.com/view/article/23208 "Raymond, Sir Thomas (1626/7–1683)"], ''Oxford Dictionary of National Biography'', (Oxford: Oxford University Press, 2004), accessed March 4, 2015.</ref> The version Wythe owned was the second edition, which was first printed in London in 1743.<ref>Ibid.</ref> Little commentary exists on the quality of the case reports, but they are cited to by several court opinions, including early U.S. court decisions. One such decision is ''Georgia v. Brailford'', which is one of the earliest [http://en.wikipedia.org/w/index.php?title=Supreme_Court_of_the_United_States&oldid=649734970 U.S. Supreme Court] decisions and the first involving a jury.<ref>''The Documentary History of the Supreme Court of the United States, 1789-1800'', ed. Maeva Marcus et. al., vol. 6, ''Cases: 1790-1795'' (New York: Columbia University Press, 1998), 73.</ref> The court opinion there cited to ''Whaley v. Anderson'', specifically to precedent relating to forfeiture of property by a joint tenant.<ref>Ibid.</ref> Another Supreme Court case to cite Raymond is ''MacDonogh v. Dannery'', a 1796 case involving a maritime dispute between England and France.<ref>''The Documentary History of the Supreme Court of the United States, 1789-1800'', ed. Maeva Marcus et. al., vol. 7, ''Cases: 1796-1797'' (New York: Columbia University Press, 2003), 38.</ref> The court opinion erroneously cites a case from Comberbach’s Reports, but meant to cite ''Hughs v. Cornelius''.<ref>Ibid.</ref> ''Hughs'' provides precedent on neutral jurisdiction over prize disputes between two belligerent nations.<ref>Ibid.</ref>

Author:

Sir Thomas Raymond was a judge of the King’s Bench in the late seventeenth century. He entered Gray’s Inn in 1645, one year before he graduated from [http://en.wikipedia.org/w/index.php?title=Christ%27s_College,_Cambridge&oldid=649716045 Christ’s College, Cambridge]. He was first called to the bar in 1651 and joined the sarjeants of law in 1677. He was elevated to the bench as a baron of the exchequer in 1679 and received a knighthood later that year. He was transferred to the common pleas in February of 1680 and to the King’s Bench two months later. He died in 1683 and was survived by his son Robert, who would eventually serve on the King’s Bench as chief justice.<ref>Handley,"Raymond, Sir Thomas (1626/7–1683)".</ref>

==Evidence for Inclusion in Wythe's Library==

==References==
<references />

==External Links==
Read this book in [http://books.google.com/books?id=fO56tgAACAAJ&dq=Raymond+Thomas+Reports+of+Divers+Special+Cases+Adjudged Google Books]

[[Category:Case Reports]]
[[Category:Common Pleas Reports]]
[[Category:Titles in Wythe's Library]]

Reports of Divers Special Cases

2015-03-04T19:12:53Z

Cjhunter:

{{DISPLAYTITLE: ''Reports of Divers Special Cases''}}
<big>''Reports of Divers Special Cases Adjudged in the Courts of King's bench, Common pleas, and Exchequer, in the reign of King Charles II.''</big>
===by Sir Thomas Raymond===
__NOTOC__
{{NoBookInfoBox
|shorttitle=Reports of Divers Special Cases
|commontitle=
|vol=
|author=Sir Thomas Raymond
|editor=
|trans=
|publoc=London, In the Savoy
|publisher=Printed by H. Lintot (assignee of E. Sayer) for D. Browne [etc.]
|year=1743
|edition=
|lang=
|set=
|pages=
|desc=
}}

Raymond’s case reporter was first published in 1696.<ref>Stuart Handley, [http://www.oxforddnb.com/view/article/23208 "Raymond, Sir Thomas (1626/7–1683)"], ''Oxford Dictionary of National Biography'', (Oxford: Oxford University Press, 2004), accessed March 4, 2015.</ref> The version Wythe owned was the second edition, which was first printed in London in 1743.<ref>Ibid.</ref> Little commentary exists on the quality of the case reports, but they are cited to by several court opinions, including early U.S. court decisions. One such decision is ''Georgia v. Brailford'', which is one of the earliest [http://en.wikipedia.org/w/index.php?title=Supreme_Court_of_the_United_States&oldid=649734970 U.S. Supreme Court] decisions and the first involving a jury.<ref>''The Documentary History of the Supreme Court of the United States, 1789-1800'', ed. Maeva Marcus et. al., vol. 6, ''Cases: 1790-1795'' (New York: Columbia University Press, 1998), 73.</ref> The court opinion there cited to ''Whaley v. Anderson'', specifically to precedent relating to forfeiture of property by a joint tenant.<ref>Ibid.</ref> Another Supreme Court case to cite Raymond is ''MacDonogh v. Dannery'', a 1796 case involving a maritime dispute between England and France.<ref>''The Documentary History of the Supreme Court of the United States, 1789-1800'', ed. Maeva Marcus et. al., vol. 7, ''Cases: 1796-1797'' (New York: Columbia University Press, 2003), 38.</ref> The court opinion erroneously cites a case from Comberbach’s Reports, but meant to cite ''Hughs v. Cornelius''.<ref>Ibid.</ref> ''Hughs'' provides precedent on neutral jurisdiction over prize disputes between two belligerent nations (3).

Author:

Sir Thomas Raymond was a judge of the King’s Bench in the late seventeenth century. He entered Gray’s Inn in 1645, one year before he graduated from [http://en.wikipedia.org/w/index.php?title=Christ%27s_College,_Cambridge&oldid=649716045 Christ’s College, Cambridge]. He was first called to the bar in 1651 and joined the sarjeants of law in 1677. He was elevated to the bench as a baron of the exchequer in 1679 and received a knighthood later that year. He was transferred to the common pleas in February of 1680 and to the King’s Bench two months later. He died in 1683 and was survived by his son Robert, who would eventually serve on the King’s Bench as chief justice.<ref>Handley,"Raymond, Sir Thomas (1626/7–1683)".

==Evidence for Inclusion in Wythe's Library==

==References==
<references />

==External Links==
Read this book in [http://books.google.com/books?id=fO56tgAACAAJ&dq=Raymond+Thomas+Reports+of+Divers+Special+Cases+Adjudged Google Books]

[[Category:Case Reports]]
[[Category:Common Pleas Reports]]
[[Category:Titles in Wythe's Library]]

Reports of Divers Special Cases

2015-03-04T19:05:48Z

Cjhunter:

{{DISPLAYTITLE: ''Reports of Divers Special Cases''}}
<big>''Reports of Divers Special Cases Adjudged in the Courts of King's bench, Common pleas, and Exchequer, in the reign of King Charles II.''</big>
===by Sir Thomas Raymond===
__NOTOC__
{{NoBookInfoBox
|shorttitle=Reports of Divers Special Cases
|commontitle=
|vol=
|author=Sir Thomas Raymond
|editor=
|trans=
|publoc=London, In the Savoy
|publisher=Printed by H. Lintot (assignee of E. Sayer) for D. Browne [etc.]
|year=1743
|edition=
|lang=
|set=
|pages=
|desc=
}}

Raymond’s case reporter was first published in 1696.<ref>Stuart Handley, "Raymond, Sir Thomas (1626/7–1683)", ''Oxford Dictionary of National Biography'', (Oxford: Oxford University Press, 2004), [http://www.oxforddnb.com/view/article/23208 http://www.oxforddnb.com/view/article/23208]. </ref> The version Wythe owned was the second edition, which was first printed in London in 1743.<ref>Ibid.</ref> Little commentary exists on the quality of the case reports, but they are cited to by several court opinions, including early U.S. court decisions. One such decision is Georgia v. Brailford, which is one of the earliest [http://en.wikipedia.org/w/index.php?title=Supreme_Court_of_the_United_States&oldid=649734970 U.S. Supreme Court] decisions and the first involving a jury.<ref>''The Documentary History of the Supreme Court of the United States, 1789-1800'', ed. Maeva Marcus et. al., vol. 6, ''Cases: 1790-1795'' (New York: Columbia University Press, 1998), 73.</ref> The court opinion there cited to Whaley v. Anderson, specifically to precedent relating to forfeiture of property by a joint tenant.<ref>Ibid.</ref> Another Supreme Court case to cite Raymond is MacDonogh v. Dannery, a 1796 case involving a maritime dispute between England and France.<ref>''The Documentary History of the Supreme Court of the United States, 1789-1800'', ed. Maeva Marcus et. al., vol. 7, ''Cases: 1796-1797'' (New York: Columbia University Press, 2003), 38.</ref> The court opinion erroneously cites a case from Comberbach’s Reports, but meant to cite Hughs v. Cornelius. Hughs provides precedent on neutral jurisdiction over prize disputes between two belligerent nations (3).

Author:

Sir Thomas Raymond was a judge of the King’s Bench in the late seventeenth century. He entered Gray’s Inn in 1645, one year before he graduated from Christ’s College, Cambridge. He was first called to the bar in 1651 and joined the sarjeants of law in 1677. He was elevated to the bench as a baron of the exchequer in 1679 and received a knighthood later that year. He was transferred to the common pleas in February of 1680 and to the King’s Bench two months later. He died in 1683 and was survived by his son Robert, who would eventually serve on the King’s Bench as chief justice. (1)

==Evidence for Inclusion in Wythe's Library==

==References==
<references />

==External Links==
Read this book in [http://books.google.com/books?id=fO56tgAACAAJ&dq=Raymond+Thomas+Reports+of+Divers+Special+Cases+Adjudged Google Books]

[[Category:Case Reports]]
[[Category:Common Pleas Reports]]
[[Category:Titles in Wythe's Library]]

Law of Conveyances

2015-03-03T14:56:13Z

Cjhunter:

{{DISPLAYTITLE:''Law of Conveyances''}}
<big>''The Law of Conveyances, Shewing the Natures, Kinds, and Effects, of All Manner of Assurances, with the Manner of Their Several Executions and Operations, also Directions to Sue Out and Prosecute All Manner of Writs, of Extent, Elegit, and Judiciall Writs upon Statutes, Recognizances, Judgments, &c''</big>
===by John Herne===
__NOTOC__
{{NoBookInfoBox
|shorttitle=The Law of Conveyances
|commontitle=
|vol=
|author=John Herne
|editor=
|trans=
|publoc=London
|publisher=T.R.
|year=1657
|edition=
|lang=
|set=
|pages=
|desc=
}}
London: Printed by T.R. for Hen. Twyford, and Tho. Dring ..., 1657.

John Herne (fl. 1636-1660), likely son of John Herne, a prominent barrister in the 17th century, entered [https://en.wikipedia.org/wiki/Lincoln%27s_Inn Lincoln's Inn] on February 11, 1636.<ref>D. A. Orr, “Herne , John (c.1593–1649)”, ''Oxford Dictionary of National Biography'', (Oxford: Oxford University Press, 2004), [http://www.oxforddnb.com/view/article/13085 http://www.oxforddnb.com/view/article/13085].</ref> He translated in 1659 ''The learned reading of John Herne esq., late of the honourable society of Lincoln's Inn, upon the statute of 23 H. 8, cap. 3, concerning commissions of sewers.''<ref>Ibid.</ref> As well as published a collection of precedents, including ''The Pleader'', ''The Law of Conveyances'', ''The Modern Assurancer'', and ''The Law of Charitable Uses''.<ref>Ibid.</ref> He is likely buried under a monument at Ameringhall, in the County of Norfolk, England.

The Law of Conveyances was published in 8 volumes in 1658.<ref>Ibid.</ref> A compilation of tables, cases, and other relevant information, The Law of Conveyances assembles the different aspects of the law on conveyances into a single work, as opposed to their previous status as dispersed in large books of law. His compilation includes information on how to transfer assurances, how to sue and prosecute writs of extent, elegit, and judicial writs upon statutes, recognizances, and judgments. A second edition was published to correct defects in the previous work.<ref>John Herne, ''The Law of Conveyances'' (London: T.R. for Hen. Twyford, and Tho. Dring, 1658), [http://gateway.proquest.com/openurl?ctx_ver=Z39.88-2003&res_id=xri:eebo&rft_id=xri:eebo:citation:99899513 http://gateway.proquest.com/openurl?ctx_ver=Z39.88-2003&res_id=xri:eebo&rft_id=xri:eebo:citation:99899513].</ref>

==References==
<references />
==External Links==

==Evidence for Inclusion in Wythe's Library==

[[Category:Commercial Law]]
[[Category:Titles in Wythe's Library]]

Law of Conveyances

2015-03-03T14:49:47Z

Cjhunter:

{{DISPLAYTITLE:''Law of Conveyances''}}
<big>''The Law of Conveyances, Shewing the Natures, Kinds, and Effects, of All Manner of Assurances, with the Manner of Their Several Executions and Operations, also Directions to Sue Out and Prosecute All Manner of Writs, of Extent, Elegit, and Judiciall Writs upon Statutes, Recognizances, Judgments, &c''</big>
===by John Herne===
__NOTOC__
{{NoBookInfoBox
|shorttitle=The Law of Conveyances
|commontitle=
|vol=
|author=John Herne
|editor=
|trans=
|publoc=London
|publisher=T.R.
|year=1657
|edition=
|lang=
|set=
|pages=
|desc=
}}
London: Printed by T.R. for Hen. Twyford, and Tho. Dring ..., 1657.

John Herne (fl. 1636-1660), likely son of John Herne, a prominent barrister in the 17th century, entered [https://en.wikipedia.org/wiki/Lincoln%27s_Inn Lincoln's Inn] on February 11, 1636.<ref>D. A. Orr, “Herne , John (c.1593–1649)”, ''Oxford Dictionary of National Biography'', (Oxford: Oxford University Press, 2004), [http://www.oxforddnb.com/view/article/13085 http://www.oxforddnb.com/view/article/13085].</ref> He translated in 1659 ''The learned reading of John Herne esq., late of the honourable society of Lincoln's Inn, upon the statute of 23 H. 8, cap. 3, concerning commissions of sewers.''<ref>Ibid.</ref> As well as published a collection of precedents, including ''The Pleader'', ''The Law of Conveyances'', ''The Modern Assurancer'', and ''The Law of Charitable Uses''.<ref>Ibid.</ref> He is likely buried under a monument at Ameringhall, in the County of Norfolk, England.

The Law of Conveyances was published in 8 volumes in 1658.<ref>Ibid.</ref> A compilation of tables, cases, and other relevant information, The Law of Conveyances assembles the different aspects of the law on conveyances into a single work, as opposed to their previous status as dispersed in large books of law. His compilation includes information on how to transfer assurances, how to sue and prosecute writs of extent, elegit, and judicial writs upon statutes, recognizances, and judgments. A second edition was published to correct defects in the previous work.<ref>John Herne, ''The Law of Conveyances'' (London: T.R. for Hen. Twyford, and Tho. Dring, 1658), [http://eebo.chadwyck.com/search/full_recSOURCE=pgimages.cfg&ACTION=ByID&ID=99899513&FILE=../session/1387294584_19730&SEARCHSCREEN=CITATIONS&VID=153981&PAGENO=3&ZOOM=100&VIEWPORT=&SEARCHCONFIG=var_spell.cfg&DISPLAY=AUTHOR&HIGHLIGHT_KEYWORD=undefined http://eebo.chadwyck.com/search/full_recSOURCE=pgimages.cfg&ACTION=ByID&ID=99899513&FILE=../session/1387294584_19730&SEARCHSCREEN=CITATIONS&VID=153981&PAGENO=3&ZOOM=100&VIEWPORT=&SEARCHCONFIG=var_spell.cfg&DISPLAY=AUTHOR&HIGHLIGHT_KEYWORD=undefined].</ref>

==References==
<references />
==External Links==

==Evidence for Inclusion in Wythe's Library==

[[Category:Commercial Law]]
[[Category:Titles in Wythe's Library]]

Law of Conveyances

2015-03-03T14:25:26Z

Cjhunter:

{{DISPLAYTITLE:''Law of Conveyances''}}
<big>''The Law of Conveyances, Shewing the Natures, Kinds, and Effects, of All Manner of Assurances, with the Manner of Their Several Executions and Operations, also Directions to Sue Out and Prosecute All Manner of Writs, of Extent, Elegit, and Judiciall Writs upon Statutes, Recognizances, Judgments, &c''</big>
===by John Herne===
__NOTOC__
{{NoBookInfoBox
|shorttitle=The Law of Conveyances
|commontitle=
|vol=
|author=John Herne
|editor=
|trans=
|publoc=London
|publisher=T.R.
|year=1657
|edition=
|lang=
|set=
|pages=
|desc=
}}
London: Printed by T.R. for Hen. Twyford, and Tho. Dring ..., 1657.

John Herne (fl. 1636-1660), likely son of John Herne, a prominent barrister in the 17th century, entered [https://en.wikipedia.org/wiki/Lincoln%27s_Inn Lincoln's Inn] on February 11, 1636.<ref>D. A. Orr, “Herne , John (c.1593–1649)”, ''Oxford Dictionary of National Biography'', (Oxford: Oxford University Press, 2004), [http://www.oxforddnb.com/view/article/13085 http://www.oxforddnb.com/view/article/13085].</ref> He translated in 1659 ''The learned reading of John Herne esq., late of the honourable society of Lincoln's Inn, upon the statute of 23 H. 8, cap. 3, concerning commissions of sewers.''<ref>Ibid.</ref> As well as published a collection of precedents, including ''The Pleader'', ''The Law of Conveyances'', ''The Modern Assurancer'', and ''The Law of Charitable Uses''.<ref>Ibid.</ref> He is likely buried under a monument at Ameringhall, in the County of Norfolk, England.

The Law of Conveyances was published in 8 volumes in 1658.<ref>Ibid.</ref> A compilation of tables, cases, and other relevant information, The Law of Conveyances assembles the different aspects of the law on conveyances into a single work, as opposed to their previous status as dispersed in large books of law. His compilation includes information on how to transfer assurances, how to sue and prosecute writs of extent, elegit, and judicial writs upon statutes, recognizances, and judgments. A second edition was published to correct defects in the previous work.<ref>John Herne, ''The Law of Conveyances'' (London: T.R. for Hen. Twyford, and Tho. Dring, 1658),[http://eebo.chadwyck.com/search/full_recSOURCE=pgimages.cfg&ACTION=ByID&ID=99899513&FILE=../session/1387294584_19730&SEARCHSCREEN=CITATIONS&VID=153981&PAGENO=3&ZOOM=100&VIEWPORT=&SEARCHCONFIG=var_spell.cfg&DISPLAY=AUTHOR&HIGHLIGHT_KEYWORD=undefined http://eebo.chadwyck.com/search/full_recSOURCE=pgimages.cfg&ACTION=ByID&ID=99899513&FILE=../session/1387294584_19730&SEARCHSCREEN=CITATIONS&VID=153981&PAGENO=3&ZOOM=100&VIEWPORT=&SEARCHCONFIG=var_spell.cfg&DISPLAY=AUTHOR&HIGHLIGHT_KEYWORD=undefined].</ref>

==References==
<references />
==External Links==

==Evidence for Inclusion in Wythe's Library==

[[Category:Commercial Law]]
[[Category:Titles in Wythe's Library]]

Law of Conveyances

2015-03-03T14:14:19Z

Cjhunter:

{{DISPLAYTITLE:''Law of Conveyances''}}
<big>''The Law of Conveyances, Shewing the Natures, Kinds, and Effects, of All Manner of Assurances, with the Manner of Their Several Executions and Operations, also Directions to Sue Out and Prosecute All Manner of Writs, of Extent, Elegit, and Judiciall Writs upon Statutes, Recognizances, Judgments, &c''</big>
===by John Herne===
__NOTOC__
{{NoBookInfoBox
|shorttitle=The Law of Conveyances
|commontitle=
|vol=
|author=John Herne
|editor=
|trans=
|publoc=London
|publisher=T.R.
|year=1657
|edition=
|lang=
|set=
|pages=
|desc=
}}
London: Printed by T.R. for Hen. Twyford, and Tho. Dring ..., 1657.

John Herne (fl. 1636-1660), likely son of John Herne, a prominent barrister in the 17th century, entered Lincoln’s Inn on February 11, 1636.<ref>D. A. Orr, “Herne , John (c.1593–1649)”, ''Oxford Dictionary of National Biography'', (Oxford: Oxford University Press, 2004), [http://www.oxforddnb.com/view/article/13085].</ref> He translated in 1659 ''The learned reading of John Herne esq., late of the honourable society of Lincoln's Inn, upon the statute of 23 H. 8, cap. 3, concerning commissions of sewers.''<ref>Ibid.</ref> As well as published a collection of precedents, including ''The Pleader'', ''The Law of Conveyances'', ''The Modern Assurancer'', and ''The Law of Charitable Uses''.<ref>Ibid.</ref> He is likely buried under a monument at Ameringhall, in the County of Norfolk, England.

The Law of Conveyances was published in 8 volumes in 1658.<ref>Ibid.</ref> A compilation of tables, cases, and other relevant information, The Law of Conveyances assembles the different aspects of the law on conveyances into a single work, as opposed to their previous status as dispersed in large books of law. His compilation includes information on how to transfer assurances, how to sue and prosecute writs of extent, elegit, and judicial writs upon statutes, recognizances, and judgments. A second edition was published to correct defects in the previous work.<ref>John Herne, ''The Law of Conveyances'' (London: T.R. for Hen. Twyford, and Tho. Dring, 1658),[http://eebo.chadwyck.com/search/full_recSOURCE=pgimages.cfg&ACTION=ByID&ID=99899513&FILE=../session/1387294584_19730&SEARCHSCREEN=CITATIONS&VID=153981&PAGENO=3&ZOOM=100&VIEWPORT=&SEARCHCONFIG=var_spell.cfg&DISPLAY=AUTHOR&HIGHLIGHT_KEYWORD=undefined].</ref>

==References==
<references />
==External Links==

==Evidence for Inclusion in Wythe's Library==

[[Category:Commercial Law]]
[[Category:Titles in Wythe's Library]]

Law of Conveyances

2015-03-03T14:02:10Z

Cjhunter:

{{DISPLAYTITLE:''Law of Conveyances''}}
<big>''The Law of Conveyances, Shewing the Natures, Kinds, and Effects, of All Manner of Assurances, with the Manner of Their Several Executions and Operations, also Directions to Sue Out and Prosecute All Manner of Writs, of Extent, Elegit, and Judiciall Writs upon Statutes, Recognizances, Judgments, &c''</big>
===by John Herne===
__NOTOC__
{{NoBookInfoBox
|shorttitle=The Law of Conveyances
|commontitle=
|vol=
|author=John Herne
|editor=
|trans=
|publoc=London
|publisher=T.R.
|year=1657
|edition=
|lang=
|set=
|pages=
|desc=
}}
London: Printed by T.R. for Hen. Twyford, and Tho. Dring ..., 1657.

John Herne (fl. 1636-1660), likely son of John Herne, a prominent barrister in the 17th century, entered Lincoln’s Inn on February 11, 1636.<ref>D. A. Orr, “Herne , John (c.1593–1649)”, ''Oxford Dictionary of National Biography'', (Oxford: Oxford University Press, 2004), [http://www.oxforddnb.com/view/article/13085].</ref> He translated in 1659 The learned reading of John Herne esq., late of the honourable society of Lincoln's Inn, upon the statute of 23 H. 8, cap. 3, concerning commissions of sewers. 2, as well as published a collection of precedents, including The Pleader, The Law of Conveyances, The Modern Assurancer, and The Law of Charitable Uses. 3. He is likely buried under a monument at Ameringhall, in the County of Norfolk, England.

The Law of Conveyances was published in 8 volumes in 1658. 5. A compilation of tables, cases, and other relevant information, The Law of Conveyances assembles the different aspects of the law on conveyances into a single work, as opposed to their previous status as dispersed in large books of law. His compilation includes information on how to transfer assurances, how to sue and prosecute writs of extent, elegit, and judicial writs upon statutes, recognizances, and judgments. A second edition was published to correct defects in the previous work. 6.

==References==

==External Links==

==Evidence for Inclusion in Wythe's Library==

[[Category:Commercial Law]]
[[Category:Titles in Wythe's Library]]

Overton v. Ross

2015-02-25T19:26:51Z

Cjhunter:

{{DISPLAYTITLE:''Case of Overtons Mill''}}
[[File:WytheCaseOfOvertonsMill1803.jpg|thumb|right|300px|First page of ''The Case of Overtons Mill: Prolegomena, in the Richmond Common-Law District Court, Elizabeth Overton and Richard Overton, Plaintiffs, Against David Ross, Defendent'' by George Wythe (Richmond, 1803?). Image from a copy at the Library of Virginia.]]
''The Case of Overtons Mill'' (1803)<ref>George Wythe, ''The Case of Overton's Mill'' (Richmond, 1803?).</ref> discussed whether the renter of a mill was liable for the repairs to a mill that was destroyed due to circumstances beyond the renter's control. Wythe heard this case as the chancellor for the Superior Court of Chancery of the Richmond District, one of the three Chancery Court Districts that were created after the Virginia Assembly dissolved the High Court of Chancery in 1802.
==Background==
David Ross leased land and the mill on it for seven years from Richard Morris, who was acting as an agent for Richard and Elizabeth Overton. The lease said that Ross would be responsible for the construction of certain buildings, making improvements, paying taxes, and restoring the mill "in tenentable repair" by the end of the lease term.

In January 1784, an unexpected ice movement beyond Ross's control destroyed the mill. Ross believed he was not obligated under the lease to rebuild the mill or continue paying rent, but the Overtons disagreed. The Overtons and Ross brought the case to arbitrators. In 1784, the arbitrators issued a decision stating that Ross was obligated to continue paying rent and to "perform the other covenants contained in the said lease".

The Overtons later filed suit in the common-law side of Richmond District Court, claiming that Ross failed to uphold his responsibilities under the lease, and that he therefore owed the Overtons £6000. Ross stated that he had upheld all his duties under the lease, and that nowhere in the arbitrators' decision was there mention of a possibility of £6000 in damages. The court awarded the Overtons £3500 in damages plus court costs, and Ross appealed the decision to the Virginia Supreme Court of Appeals.

==The Supreme Court of Virginia's Decision (1802)==
The Supreme Court affirmed the District Court's decision and awarded costs to the Overtons.<ref>''Ross v. Overton'', 7 Va. (3 Call) 309 (1802).</ref>

Ross's first objection to the District Court's decision was that the date the Overtons claimed the contract was signed in their complaint was different than the date given in the arbitrators' decision. The arbitrators said that the contract was signed on May 22, 1784. In their complaint, the Overtons said that they signed the contract on ___ 25, 1784 (they left out the month). Ross argued that this discrepancy between dates voided the agreement. The Supreme Court said that because the parties agreed on all other points, in a situation where the plaintiff gave no date or an impossible date for the contract signing in the complaint, the plaintiff can plead that the contract was signed on any day that the plaintiff can prove the contract was delivered. Because the arbitrators must have had a copy of the contract signed May 22, 1784, the Overtons could use that as the alleged date the contract was signed.

Ross's second objection was that the arbitrators made a mistake in interpreting the law when they required Ross to continue paying the rent and performing other duties under the rental contract, even after the mill was destroyed by an event beyond Ross's control. While a court normally should not overturn an arbitrator's decision, it can do so in situations in which the arbitrator made an error of law. The Supreme Court said that this question of law was a doubtful one that required substantial argument on both sides to determine the answer. Courts will not overturn an arbitrator's decision just because the arbitrator erred in interpreting a legal question that a reasonable person thinks could go either way. Ross also argued that the covenant of quiet enjoyment meant that the Overtons insured the property against all accidents, but the Court said that the covenant only protected against legal claims, not a "separation of continuity" such as robbery or loss of property through destruction.
==Wythe's Discussion of the Supreme Court Decision==
Wythe dissected the Supreme Court's decision, bit by bit.

Wythe said that the Supreme Court was dodging the issue of the discrepancy between the date the Overtons alleged the contract was signed and the date given in the arbitrators' decision. Contrary to the Supreme Court's contention, "the 25th of 1784" is just as much a date as "May 25th, 1784". The [https://en.wikipedia.org/wiki/Areopagus Aeropagus] would have considered "the first date of X Olympiad" a date, even if the month or day of the month were omitted. No philosopher, whether Aristotle, [https://en.wikipedia.org/wiki/Petrus_Ramus Ramus], [https://en.wikipedia.org/wiki/John_Milton Milton], or [https://en.wikipedia.org/wiki/William_Duncan_%28philosopher%29 Duncan], would instruct their students to make such a large assumption as to say that the Overton's allegations had "no date". Wythe also cited to John Locke's [[Works of John Locke|''Essay on Human Understanding'']<ref>John Locke, ''Essay on Human Understanding'', Book 3, Ch. 6.</ref> for further support. At any rate, the Overtons said that the contract was signed on the 25th, which cannot magically become the 22nd (the date cited in the arbitrators' decision) no matter how hard they try.

Wythe said that the question of whether the Overtons guaranteed Ross against all forms of loss was the wrong one; the proper question was whether Ross should still be liable for rent after the destruction of the mill, which Wythe compared to a scene described in [[Odyssey of Homer|Homer's ''Odyssey'']].<ref>''"Ὄσσαν ἐπ᾽ Οὐλύμπῳ μέμασαν θέμεν, αὐτὰρ ἐπ᾽ Ὄσσῃ Πήλιον εἰνοσίφυλλον"''. "To heave upon Olympus Ossa strove,/On Ossa, Pelion's vacillating grove". Wythe, ''The Case of Overton's Mill'', 9, citing Homer, ''Odyssey'': Book 11, ln. 315-16. This refers to Otus and Ephialtes, the [http://en.wikipedia.org/wiki/Aloadae Aloadae]. The Aloadae were giants who were sons of [http://en.wikipedia.org/wiki/Iphimedeia Iphimedeia] and Poseidon. The Aloadae sought to storm heaven by piling Mount Ossa on Mount Olympus, then Mount Pelion on top of Mount Ossa.</ref>

Wythe said that there were plenty of previous decisions in which courts had said they could properly assume appellate jurisdiction over arbitrators' decisions, regardless of whether the arbitrators had made a mistake of fact or law. The doubtfulness of the law and the facts make this case an especially strong candidate for a new trial or appellate hearing, rather than removing it from a court's jurisdiction. If a court in equity, such as the Chancery Court, were to follow English common-law precedents to determine when it could award a new trial, then Wythe opined that it would find itself as badly misled as Demea was by his servant Syrus in [[Publii Terentii Afri Comoediae Sex|Terence's comedy ''The Brothers'']]<ref>Terence, ''Adelphoe (The Brothers)'', Act 4, Scene 2.</ref> and equally worthy of derision for its gullibility. Wythe added (for emphasis, perhaps?) that this is a situation in which it would be better if English caselaw precedent had simply been consumed by the [https://en.wikipedia.org/wiki/Lethe Lethe] (one of the rivers flowing through Hades that inflicted forgetfulness on anyone who drank from its waters), much as Overtons Mill was overtaken by the James River.

Wythe wondered aloud what might have resulted had Ross employed more attorneys at the Supreme Court; perhaps, Wythe pondered, the Supreme Court might have decided that a landlord was responsible for insuring rental property.

Wythe also criticized the Supreme Court opinion for inconsistency, saying that "(t)he question or case, as it is some times called, is in four places SUPPOSED to be doubtful, in a fifth place is EVINCED, i'e,' proved, to be doubtful, in (a) sixth place, as appeareth by the words, 'it is our opinion, that the arbitrators did not mistake the law,' is EVINCED, proved, NOT to be doubtful."<ref>Wythe, ''Case of Overtons Mill'', 13.</ref> To Wythe, the legal question's doubtfulness in the Supreme Court opinion seemed to appear and reappear as easily as [http://en.wikipedia.org/wiki/Gyges_of_Lydia Gyges of Lydia] as described in [http://lawlibrary.wm.edu/wythepedia/index.php/Platonis_Philosophi_Quae_Extant_Graece|Plato's ''Republic''].<ref>Plato, ''Republic'' 2. According to Plato's story, Gyges was a shepherd who discovered a magic ring that allowed him to become visible or invisible depending on the direction he turned its bezel.</ref>

Wythe mulls over what is truly equitable in a situation in which the legal rule is in doubt. If an even number of judges are assumed to fall on both sides of the argument, then a defendant should be acquitted.<ref>Wythe uses the Latin phrase ''sententiis paribus reus absolvitur''. Wythe, ''Case of Overtons Mill'', 14.</ref> Wythe notes that "the voice of wisdom, Minerva<ref>Here, Wythe refers to the Roman goddess Minerva instead of the Greek goddess Athena, even though he is citing a play written by a Greek poet. This may have been normal for a scholar of his time who was trained in the classics. Until modern times, normal practice for English translators was to use the Latin equivalent of ancient Greek names, since that is what they were used to from reading Virgil and Ovid in school. Homer, Robert Fagles (trans.), "The Spelling and Pronunciation of Homeric Names", in ''The Iliad'' (New York: Penguin Books, 1991), 65.</ref> herself" says in Aeschylus's [[Hai tou Aischylou Trageodiai Seozomenai Hepta|play ''The Eumenides'']], that "the law absolve the matricider/For equal votes the court divide."<ref>''The Eumenides'' is the concluding play in Aeschylus's [http://en.wikipedia.org/wiki/Oresteia ''Oresteia'' trilogy], which details the breaking of the curse on the [http://en.wikipedia.org/wiki/House_of_Atreus House of Atreus]. In ''The Libation Bearers'', the second play of the trilogy, Orestes (spurred on by his sister Electra and the god Apollo) kills his mother Clytemnestra, to avenge the death of his father (and Clytemnestra's husband) Agamemnon. In ''The Eumenides'', the Furies (spirits who avenge patricide) seek to execute Orestes for his deed. Athena (whom the Romans equated to their goddess Minerva) steps in and forms a jury of twelve people to judge Orestes's guilt, stating that a tie would result in acquittal. The jury splits evenly, and Athena convinces the Furies to accept Orestes's acquittal.</ref> One of [[Works of Francis Bacon|Francis Bacon's maxims]] states that when rules of law cross each other, the worthier principle should be upheld.<ref>Francis Bacon, "Verba fortius accipiuntur cont a proferentem", ''The Works of Francis Bacon: Law Tracts. Maxims of the Law''.</ref>

==The Chancery Court's Decision==
After the Virginia Supreme Court upheld the common-law Richmond District Court's decision, Ross filed a bill in equity with the Richmond District Superior Court of Chancery,<ref>In 1802, the Virginia Assembly split the High Court of Chancery into three Superior Courts of Chancery, each court assigned to a geographic district, to decrease the equity courts' backlog. Thomas Jefferson Headlee, Jr., ''The Virginia State Court System, 1776- '' (Richmond, VA: Virginia State Library, 1969), 13. Wythe became the chancellor for the Richmond District.</ref> which heard the case on May 25, 1803. Wythe granted Ross a permanent injunction against the Richmond common-law District Court's decision and awarded Ross court costs for the Chancery Court stage.

Wythe begins the text of his opinion by describing the many ways beyond a renter's control that a leased building can be destroyed. Wythe quotes the description in [[Works of Virgil, Containing His Pastorals, Georgics and Æneis|Virgil's ''Georgic'']] of Mount Etna erupting,<ref>''"______Quoties Cyclopum effervere in agros Vidimus undantem ruptis fornacibus Ætnam Flammarum que globos liquefactaque volvere saxa;"'' Virgil, ''Georgic'', Lib. I, ln. 471-73.</ref> the sacking of Troy as described in [[Works of Virgil, Containing His Pastorals, Georgics and Æneis|Virgil's ''Aeneid'']],<ref>''"______________jam proximus ardet Ucalegon"''. Virgil, ''Aeneid'', 2.311. In this line, Aeneas notes that he is next to [http://en.wikipedia.org/wiki/Ucalegon Trojan elder Ucalegon's] house, which was burned by the Achaeans when they sacked Troy.</ref> and Pliny the Elder's description of the nature of wind in his [[C. Plinii Secundi Naturalis Historiæ|''Natural History'']].<ref>Pliny the Elder, ''C. Plinii Secundi Naturalis Historiæ'', Tom. I, Lib. II, Cap. XLVIII. Pliny the Elder died while investigating Mount Vesuvius's eruption; perhaps Wythe had this in the back of his mind when he included these cites in his litany of natural disasters?</ref> Wythe also cites Titus Lucretius Carus's description of meterological phenomena in his book [[De Rerum Natura|''On the Nature of Things'']]<ref>Titus Lucretius Carus, ''De Rerum Natura'', 6.424.</ref> and Tacitus's description in his [[C. Cornelii Taciti Opera, Quae Exstant|''Annals'']] of a whirlwind that destroyed Campania.<ref>Cornelius Tacitus, ''Annals'', 16.13.</ref>

Wythe says that Ross's situation is similar to those described in the ancient works. In such a situation, where a tenant lost their property through no fault of their own, no judge could find it equitable to force the tenant to continue to pay rent. This is one of those situations a court of equity was designed for, a situation in which equity can properly mitigate the harsh results the common law would dictate. A judge in equity investigating Ross's situation should ask whether such a disaster was rationally expected; and if so, whether the parties agreed that the tenant should continue paying rent until the mill was rebuilt.

Wythe said that the arbitrators' decision did not follow the law. He cited [[Corpus Juris Civilis|Justinian's ''Digest'']] for the idea that a contract is a reciprocal obligation.<ref>Justinian Dig. 50.16.19.</ref> While the mill remained operational, the Overtons had a right to demand work and rent from Ross. Ross, in turn, had the right to work the mill. Once the mill disappeared, Ross's obligation to pay rent or to work on the mill ceased.
==Supreme Court of Virginia's Decision (1808)==
Morris and the Overtons appealed Wythe's decision to the Virginia Supreme Court of Appeals, which reversed Wythe's decree.<ref>''Morris v. Ross'', 12 Va. (2 Hen. & M.) 408 (1808).</ref>

Supreme Court judge (and former Wythe student) [[St. George Tucker]] joined judges [https://en.wikipedia.org/wiki/Spencer_Roane Spencer Roane] and [https://en.wikipedia.org/wiki/William_Fleming_%28judge%29 William Fleming] in stating that a court of equity should not grant relief in a case in which a court of law has already decided on the same points of controversy. Judge Fleming expressed sympathy for Ross's position and said that he might have ruled differently had he been one of the arbitrators, but that Ross was still bound by the arbitrators' decision.

==Transcribed text of the opinion: The Case of Overtons Mill==
===Page 1===
<blockquote>
PROLEGOMENA

In the Richmond common-law district court, Elizabeth Overton and Richard Overton, ''plaintiffs'', against David Ross, ''defendent''.

THE plaintiffs demanded 6000 pounds, complaining and declaring that the defendent, who had, on the 25th day of       in the year 1784, by a sealed writing obligatorie, to the court shewn, the date whereof is the same day and year, acknowledged himself to be indebted to the plaintiffs the said 6000 pounds, yet refused to pay the money to them, wherefore they sued.

The writing obligatorie, in an assignment of the breach of its condition, is said to have been executed on the       day of      , in the year 1784.

It was, by the condition, to be void, if David Ross should perform the award of three persons, mutualy chosen to determine a controversie between the parties relative to a lease or agreement.

The agreement, signed and sealed by David Ross only, purported, that Richard Morris, on behalf of Richard Overton and Elizabeth Overton, leased to David Ross a parcel of land, with a grist-mill then erected thereon,<div align="right">a</div>
</blockquote>
===Page 2===
<blockquote>
a fisherie, and other advantages, to be holden and enjoied by him, free from all interruption and molestation whatsoever, for seven years from August, 1783; and the David Ross engaged to build certain aedifices, and make other improvements, pay taxes, restore the said mill, in tenentable repair, with the improvements, at expiration of the term, and during the continuance thereof, pay rents. Subjoined are these words: 'a more particular agreement, or lease in due form, shall be executed, at any time either of the parties shall require; this agreement being taken for the basis of it. David Ross.'

The arbitrators, after reciting their authoritie, i'e', the writing obligatorie, on which the action is supposed to have been brought, and which in the award, but no where else, is alleged to be dated the 22d day of May, 1784, say, "they met, and considered the lease or agreement aforesaid,' the substance whereof they repeat, adding, 'it appears by the admission of each partie, that in januarie, 1784, by an extraordinarie and unexpected movement of the ice, the mill-house was intirelie demolished, and the said Ross had it not in his power to prevent the same. In persuance of the submission aforesaid, we do award and determine that the said David Ross shall pay the rents reserved in the said lease or agreement, notwithstanding the accident aforesaid, and that the said David Ross shall complie with and perform the other covenants contained in the said lease.'<div align="right">The</div>
</blockquote>
===Page 3===
<blockquote>
The defendent pleaded that he had performed the condition of the writing obligatorie in the declaration mentioned, and that there was no such award as is mentioned by the plaintiffs in their breaches assigned.

The plaintiffs replied generaly. Issues were joined; and the jurie found a verdict for the plaintiffs, assessing 3500 pounds damages, for which, with costs, judgement was rendered.

The defendent appealed.

Opinion of the court of appeals in affirmance of the district courts judgement, with quaries and remarks. Paragraphs of the opinion are in italic characters.

<center>In the court of appeals,</center>
Between David Ross, appellant, and Elizabeth Overton and Richard Overton, appellees,

''In this cause, two objections have been made to the judgement of the district court: first, that there is a variance between the award and the bond of submission stated in the declaration, the former refering to a bond dated the 22d of May, 1784, and the declaration stating the bond in suit to be dated the 25th of       1784. In supporting this objection the counsil principaly relied on the case of'' Turner v' Moffet ''in this court, reported in '' 2 Wash' 71. ''But that case does not apply; since the variance was apparent on the record, against which no averment is admissible: and''<div align="right">Was</div>
</blockquote>
===Page 4===
<blockquote>
Was not the variance in the principal case, if a variance be there, apparent on the record? The obligation and award are both exhibited in court, and entered in the book registering allegations of the parties litigant and acts of the court, that is, were recorded; and is not the variance, between the bond and award which is shewn by comparison of one with the other of them, as apparent on the record here as the variance between the submission and award in the case cited?

''It was truly observed by the attorney general, that that case was distinguishable from the present, which, being a bond for the submission, was a matter'' en pais, '' and the supposed variance might be corrected by averment. The declaration states, that the defendent, on the 25th day of       1784, by obligation, the date whereof is the same day and year, bound himself to the plaintiffs. In the breaches assigned, annexed to the declaration, after reciting the lease to the defendent, and its essential covenants, on his part, that differences had arisen, which they had mutually agreed to refer to arbitration, the plaintiffs aver, that they entered into bond, similar to that entered into by the defendent, to abide by the award, and that the defendent, on the same day, to with, the       day of       1784, executed the bond in the declaration mentioned. It is obvious, from the award, that the arbitrators had before them not Rosses bond but, that entered into by the plaintiffs, which, they say, is dated the 22d of May, 1784.''<div align="right">If</div>
</blockquote>
===Page 5===
<blockquote>
If the variance were only 'supposed,' were an ''hypothesis'', that is, if no variance were, an averment to 'correct' it was superfluous, the date of the bond was correct, without averment. If between the 25th day of       1784, and the 22d day of May, 1784, a variance be, what will authorize averment, that those days were the same? An evasion of this question may be, but a categoric answer to it is not, expected: evasion, as hereafter appeareth, thus: 'the bond hath no date;' and 'we consider the date of the bond,' 25th of       in the year 1784, 'and the blank date of averment,'      day of       in the year 1784, 'to be no date.'

''Without going over the several cases cited, the rate laid down in'' I ''lord Raym' 335 seems to have run thro' them all, that is, that if a bond hath either none or an impossible dated, the plaintiff may aver an day which he can prove the bond to have been delivered.''

No man ought to have controverted the rectitude of this rule, if lord Raymond had not laid it down. But every man is not convinced that the rule is proved to APPLY to this case by such argumentation as

''The present case is that of no date to the bond''.

Did Aristotle, Ramus, Milton, Duncand, &c. in their dialectic institutions, teach their disciples that in a syllogism the minor proposition, as is done here by these words, 'the present case is that of no date to the bond,' may be taken for granted?<div align="right">''For''</div>
</blockquote>
===Page 6===
<blockquote>
''For the counsils curious criticism, refering the'' 25 ''day of something to that day of the year was calculated only to occasion the mirth it produced. We consider that, as well as the blank date averment, to be no date, and of course, there is no variance between that and the true date mentioned in the award.''

Passing over some 'curious' phrases occuring in the paragraph immediatelie preceding, and the conclusion, as 'curious' as any of them, namelie, 'of course there is no variance between that,' the 25 day of       in the year 1784, 'and the blank date averment,' the       day of       1784, 'there is no variance between these "and the true date mentioned in the award,' that is, there is no variance between the date of a bond 'of no date,' or a bond of a date which 'we consider to be no date, and the date of a bond which hath a true date; passing over this phraseologie perplexed, inexplicable, inconsistent, we ask,

Can the bond, which Richard Overton and Elizabeth Overton recite in their declaration, and whereof the date is there alleged to be the same day and year, i'e,' the 25 day of       in the year 1784, be trulie said to bear no date? Is not a year, distinguished by the number of isochronous revolutions computed from a known epoch, a date no less trulie, tho' less preciselie, than a month, or a particular day of any month specially named, in that year? An olympiad was a quaternion or period of four years used antiently by the greeks for sup-<div align="right">putations</div>
</blockquote>
===Page 7===
<blockquote>
putations of time: would Areopagus have 'considered a bond,' the date whereof was in the first, second, third or fourth, year of some one olympiad, to be a bond 'of no date,' because the name of hecatombaeon, or of scirrophorion, or of some one of the ten intervening months, or the day of the month was omited? The roman aera was the building of the citie; would the ''praetor'' have 'considered a bond,' the date whereof was in a certain year of the citie build, to be a bond 'of not date?' Europeans and british americans observe, for the same purpose, Jesus Christs nativitie; if lord Raymond in Westminsterhall had said 'he considered' a bond the date whereof is the 25 day of       in the year 1784, to be 'of no date,' it probalie would have 'occasioned' there no less mirth, than a counsils 'criticism' produced in the capitol, when some reasons for affirming the district courts judgement were attempted to be explained; and when that affirmance was proclaimed, might not one of the auditorie have asked ''risum taneatis amici?''*

In truth no date could have been avered, but the 25 day of some month between december, 1783, and june of the succeeding year, for on the 15th day of that month the arbitrators power expired.<div align="right">The</div>
----
----
<div style="font-size: 85%;">* Perhaps the foregoing concionation, by this time, has disposed the auditors to oscitation rather than cachinnation; they might be too drowsie to laugh.</div>
</blockquote>
===Page 8===
<blockquote>
The year was certain, 1784. The day of some month was certain, the 25th. And although the plaintiffs could have supplied the blank left for the month with May, they could not aver the 25th to have been the 22d day.

Again, if in this case Richard Overton and Elizabeth Overton could have avered the bond to have been dated any day on which they could have proved the bond to have been delivered, we ask, where in the declaration, or in the assignment of breaches, doth an averment, that the bond was dated the 22d day of May, 1784, appear? is an allegation to that purpose in the award, which is an act of the arbitrators, an averment of the plaintiffs Richard Overton and Elizabeth Overton!

''In every other thing, in parties, in controversie, and arbitrators, they agree. And on this point there is no error in the judgement of the district court.''

To this conclusion they who can admit the truth of its premisses, will subscribe.

''On the second point, it was argued by mr. Wickham, that under the covenant for quiet enjoiment the Overtons were the insurers of the propertie against all accidents. But surelie that covenant, which does not* differ essentialie from others of the like kind, only obliges the lessor to defend the enjoiment of the lessor to defend enjoiment of the lessee against legal clames, and not against a separa-''<div align="right">''tion''</div>
----
----
<div style="font-size: 85%;">* DIFFER ESSENTIALIE from others of the LIKE KIND! are differences between individuals of like kinds, like species, called ESSENTIAL? See Lockes essay on human understanding, book III, chap. VI.</div>
</blockquote>
===Page 9===
<blockquote>
''tion of continuitie from robbers, thieves, trespassers, or the ice.''

Mr. Wickhams argument; if it be vicious, seems an ''ignoratio clenchi'', mistake of the question. Let the question, whether Richard Overton and Elizabeth Overton, or their friend Richard Morris, under the covenant for quiet enjoiment, were insurers of the propertie against all accidents, or were obliged to defend the enjoiment, against only legal clames? let that question not be proper: this question, whether, without a special covenant, they remained insurers of their own propertie, that is; were obliged, when it was demised to a tenant paying rent for enjoiment of it, to sustain the loss of that propertie irreparable, so that it could be enjoied no longer, prostrated and crushed by islands of ice, piled one upon another, resembling a mountain, and exhibiting a spectacle no less tremendous than when Ephialtes and Otus,
<blockquote>Ὄσσαν ἐπ᾽ Οὐλύμπῳ μέμασαν θέμεν, αὐτὰρ ἐπ᾽ Ὄσσῃ<br />
Πήλιον εἰνοσίφυλλον<ref>Homer, ''Odyssey'', 11.315-316.</ref><br />

To heave upon Olympus Ossa strove,<br />
On Ossa, Pelion's* vacillating grove?</blockquote>

or rather, whether David Rosses obligation to pay rent for a mill THEN ERECTED, THEN BEING, continued after the SAID mill was DISJECTED, CEASED TO BE? this is a proper question.<div align="right">''This''</div>
----
----
<div style="font-size: 85%;">* Vacilians arbor Lucret'lib'v, v' 1097.</div>
</blockquote>
===Page 10===
<blockquote>
''This second objection is, that where it is apparent in the award that the arbitrators decided upon principles, in which they were mistaken, either in law or fact, the court will set aside the award, and they were so, in the present case, since it being stated, that the millhouse was intirelie demolished by an extraordinarie and unexpected movement of the ice, which Ross had it not in his power to prevent, they mistook the law, when they awarded Ross to pay the rent and perform his other covenants in the lease, notwithstanding the accident. For the sake of precedent, the court, first, considered how far they ought to interfere with awards, upon this ground, and are of opinion, that they ought not to consider themselves as an appellate court from the judgement of the arbitrators, and reverse it, merelie because we differ from them on a doubtful question;''

That courts of civil institution ordinarilie have not appellate jurisdiction over sentences of arbitrators, unless those compromissorie judges mistake a fact, or the law, would not have been disputed if no precedents, of which manie however, earlier than this, are extant, had approved the doctrine.

''But ought to place ourselves in the place of a court applied to, to grant a new trial, because the verdict is contrarie to evidence, which ought to be granted only in case of a plane deviation, and not in a doubtful one, merelie because the court, if on the jurie, would have given a different verdict; since that would be to<div align="right">''assume''</div>
</blockquote>
===Page 11===
<blockquote>
''assume the province of the jurie, whom the law hath appointed the triers.''

What is meant by 'case of a plane deviation?' a deviation, a departure, from what? from the truth of facts planelie proven, or from the rule planelie praescribed by law? are new trials never granted in even 'doubtful cases?' when a court and a jurie disagree, may we not call that a doubtful case? are not new trials some times granted for the very reason that the cases are 'doubtful,' that is, difficult? yea, have not new trials been granted, and even decrees pronounced, in direct opposition to verdicts certified by the courts, before which they were found, to have been 'against the weight of evidence?' with this preceent have the precedents in the cases of [[Southall v. M'Keand|Southall against Mackeand]] and [[Woods v. Macrae|Woods against Macrae]], ''cum multis aliis'', perfect symphonie?

The judge of an equitie court, who by this precedent, is refered to the practice of common law courts, in awarding new trials, to learn in what cases he will be justified in abrogating awards, if he shall, for that purpose, consult those oracles, will probablie be delaied, distracted, misled, disappointed, as in ''Terentii Adelphi, act' 4, scen' 2'', old Demea was by the directions of his servant Syrus, and, in like manner, be derided for this simple credulitie.

''This rational distinction, between plane and doubtful cases, is observed in the books, which''<div align="right">''justifie''</div>
</blockquote>

===Page 12===
<blockquote>
''justifie the court in setting aside awards for mistaken principles.''

Is this period reducible into any one simple proposition from which any conclusion can be drawn?

''That this was, at least a doubtful question is evinced, not only by the number of counsil emploied to discuss it, ''

Did not this 'curious criticism produce the 'mirth it was well calculated to occasion?'

''But from the english'' [sic] ''decisions on the subject;''

Will not every reader of the line next above and its context lament, that english decisions, if they were allowed, and shall be yet allowed, to sanctifie such a sentence as was supposed to have been authorized by them, in this case, had not been ingurgitated in the Lethe, no less irrecoverable than Overtons mill was in the James?

''And on this ground* we think the district court did not err on this second part;''

Were the counsil emploied to discuss the question equalie numerous on both sides? If they had been fewer and equal in number, who knows that the question, whether, in case of such a catastrophe, the tenent was insurer of his landlords propertie? was, not doubtful but on the contrarie, clear in favour of the former? The tenent may have been unluckie that he did not, on his side, trie the experiment: he might perhaps have been more for-<div align="right">tunate,</div>
----
----
<div style="font-size: 85%;">* Doubtfulness of the question evinced partlie by the number of counsil emploied to discuss it.</div>
</blockquote>
===Page 13===
<blockquote>
tunate, if he had not trusted to the proverb, 'in the multitude of counsillors there is safetie?'

''At the same time, observing, that, stating it as a doubtful case, cannot be complained of by the appellant, since,''

The appellant doth complain, addressing a prayer for redress of his grievance to another tribunal, before which one subject of diceptation is this question: when the court of common law hath burthened a tenent with the loss of his landlords rented propertie, which the tenent had not insured, which OMNIPOTENCE destroied, and which human providence, vigilance, and energie could not have preserved, whether a court of equitie be not bound to exonerate the tenent?

''On the whole, it is our present opinion that the arbitrators did not mistake the law.''

The question or case, as it is some times called, is in four places SUPPOSED to be doubtful, in a fifth place is EVINCED, i'e,' proved, to be doubtful, in this sixth place, as appeareth by the words, 'it is our opinion, that the arbitrators did not mistake the law,' is EVINCED, proved, NOT to be doubtful. The vicissitudes of ambiguitie and certantie in the question or case seem to have been as quick, and as easilie produced, as those of the visibilitie and evanescence of Gyges the Lydian, who as Plato, ''de republ,' lib II, p''' 369, related, could effect these miracles, could appear and disappear when he pleased, by<div align="right">means</div>
</blockquote>
===Page 14===
<blockquote>
means of a ring, one, by turning the beazle of it towards himself, and the other, by an opposite exposure.

If the law be so, that, after a rented subject had been, by a tempest, reduced to atoms, if not annihilated, the tenent must pay the rent, notwithstanding, will the professors of law class it among liberal sciences, or this part of it at least with the reliques of dynastic, lordlie, feodal barbarism?

But perhaps the question may yet be doubtful. It seems possible from the words OUR PRESENT OPINION: if the question be doubtful, and to each side of it we suppose the same number of judges to incline, the voice of wisdom, Minerva herself, is ''sententiis paribus reus absolvitur'', the doom of equal suffrages is acquital,
<blockquote>

The laws absolve the * matricider<br />
For equal votes the court divide.</blockquote>

When competent judges of law declare a legal question to be doubtful, doth not the law seem at variance with itself? and then what umpire can be, with so much proprietie called to decide the question as aequitie? is not this, not philanthropic only but, the verie praecept of law? That is a point, saith Francis Bacon 'in his maxims, worthie to<div align="right">'be</div>
----
----
<div style="font-size: 85%;">* Orestes.</div>
</blockquote>
===Page 15===
<blockquote>
be observed generalie in the rules of law, that when they encounter and cross one another, in any case, it be understood which the law holdeth worthier and to be prefered, and it is in this particular, very notable to consider, that this rule, ''verba fortius accipiuntur cont a proferentem'', being a rule of some strictness and rigor, doth not as it were its office but in absnece of other rules of more equitie and humanitie.'

If then, in a doubtful case or question the law itself direct equitie to prevale over rigor, did not the arbitrators, whose sentence was the reverse, * MISTAKE THE LAW.

David Ross, after the Richmond common law district courts judgement against him was affirmed, presented a bill in equitie to the Richmond chancerie diestrict court praying an injunction, which was awarded; whether rightly or not is the subject of the present tractate.

<center>In the Richmond district court of chancerie,
Between David Ross, plaintiff, and Richard Morris, Elizabeth Overton, Richard Overton
and Samuel Overton, defendents,</center>

This cause, heard, by consent of parties, the 25th day of may, in the third year of the nineteenth centurie of the christian aera, on the bill, answers, exhibits, and examinations of witnesses, was discussed by the court, after attending to councils arguments, in the terms following:<div align="right">A</div>
</blockquote>
===Page 16===
<blockquote>
A rented farm is ingulphed in the chasm of an earth-quake, or is overwhelmed by the lava, boiling over the brim, and running down the sides, of a burning mountains crater, during an eruption,

______''Quoties Cyclopum effervere in agros Vidimus undantem ruptis fornacibus Ætnam Flammarum que globos liquefactaque volvere saxa;''

A rented house is consumed by fulgurant or hostile fire, or is submerged and depressed in a deluge, or is swept off its site by a torrent, a * typhon, a prester, or a hurricane, or subverted or dilapidated by a landslip, a snowslip, or as in this instance, by an ice-slip;

Eversion of some houses, adjacent to another already burning is necessarie to prevent wide devastation, otherwise, inevitable, the fire, ''vulcano superante'', baffling all attempts to extinguish it or interrupt its progress; the flame is now, ''furentibus Austris'', in a high wind, communicated, to the contiguous aedifices,

''______________jam proximus ardet Ucalegon:''

the houses nearest are prostrated and destroied accordinglie; one of these victims, thus devoted for salvation of those in danger of being involved in the combustion, is a leased tenement, for which a rent is paible;

If any such a case as hath been described, and one of them the principal case appeareth<div align="right">to</div>
----
----
<div style="font-size: 85%;">* Plinii, tom' I. lib' II, cap. XLVIII. Lucretii lib.' VI. V. 424.</div>
</blockquote>
===Page 17===
<blockquote>
to be, arbitrators condemning the tenent to pay rent with which he was supposed to have charged himself by covenant in general terms, although, without his fault, he was deprived of the ''quid pro quo'', the thing for use of which he should be charged, decide unrighteously, contrary to principles of equitie never doubted.

Human providence, so hebete and limited are our faculties! is inadequate to prevention of numberless contingent evils, cannot guard against them. Happy therefore was institution of a ''curia prætoria'', court of equity, by the benignitie whereof, in opposition to that ''summum jus'', which in the ''curia censoria'' the common law court often times is ''injuria summa'', parties in contracts, as well as in other examples, are freed from detrimentose effects, avoidance of which, if they had been foreboded, would have been stipulated.

If this controversie had been laid, in the first instance, before a court of equitie, the judge herhaps might have propounded these questions: first, was such a disaster expected rationaly to happen? second, would not the parties, if they had thought such an event, and believed it probable, have consented, that, until the mill should be rebuilt, or the matter adjusted some other way, rent should not be paid? and have accordinglie stipulated?

No man who doth fancie that a prodigie will terrifie the citizens residing near James river everie seven years, will answer the form-<div align="right">er</div>
</blockquote>
===Page 18 ===
<blockquote>
er question affirmativelie; nor will any man, who doth not suppose the parties to have been one a knave and the other a fool, give a negative answer to the latter question.

The court of equitie, then, if before it the case had been brought originalie, would undoubtedlie, yes undoubtedlie, have relieved David Ross from his obligation, if indeed he, by his agreement, legalie were obliged, to pay rent during vacation of the subject, out of which the law itself supposeth that rent, ''reditus'', to grow, to return as it were, and which is the fund charged with paiment of the rent; would have placed the parties in the situation where the precepts of natural justice incontestablie direct them to be placed, and where the parties (probablie! yea certainlie, because otherwise no man will believe the tenement would have assumed in everie event the burthen,) would have consented to be placed, if they had supposed that a flood driving before it everie thing in the direction of its current would happen.

A decree, congruous with these sentiments is pure equitie, would leave those, who had the dominion of a mill, and him, who had a temporarie right to what emolument could be produced from it, would leave a landlord and landlady sustaining the loss of a machine their propertie, destroied by misfortune unforeseen and ineluctable, and would leave an ddeclare a blameless usufructuarie discharged from paiment of rent, when he could no longer enjoy<div align="right">that</div>
</blockquote>
===Page 19===
<blockquote>
that, for which the rent was an ______ that for which the rent was a retribution.

A like decree would be justifiable, if a mesuage, invaded by pestilence, should become deleterious.

Again, the contract between the parties was imperfect, was an epitome, compendium, designed to be drawn more particularlie, more explicitelie.

If, before the fatal night, one of them, instituting a prosecution against the other, had demanded performance of this article which is contained in the subjoined clause, and Richard Overton and Elizabeth Overton had insisted, that David Ross in all events should bind himself to deliver a mill, at expiration of the term, and pay rent for it, in the mean time, and David Ross had relied upon the exemption now clamed by him, alleging that at least he was not bound either to rebuild the mill, or, before the lessor should have built it, to pay rent for it, after intire demolition of it by lightning, a * turbo, or other tempest, or an inundation, could any judge, who should have decided this difference in favour of Richard Overton and Elizabeth Overton, have correct notions of justice, equitie, law? By this interrogatorie the querist intendeth a vehement negation.

If a court of equitie, to which one partie had in the first instance applied, would have<div align="declared">that</div>
<div style="font-size: 85%;">* Plinii, tom' I, lib' II, cap' XLVIII. Taciti annal' lib' XVI, c. 13.</div>
</blockquote>
===Page 20===
<blockquote>
declared David Ross not chargeable with rent, even if for paiment thereof his contract, understood in a sense most rigorous, had imported a legal obligation, we are taught, by supreme judical authoritie (in the cases of [[Beverley v. Rennolds|Beverley against Reynolds]], and of [[Dawson v. Winslow|Dawson against Winslow]] that awards contravening principles of equitie, no less than principles of law, may be rescinded.

The arbitral sentence was contrarie to law too.

The contract between Richard Morris, on behalf of the owners of the mill, and David Ross ws what is called synallagmatic, that is reciprocal. ''Labeo definit contractum autem ultro citroque obligationem quod graeci _______ vocant: veluti emptinonem, venditionem, locationem, conductionem, societatem, Digest,' lib' L' tit' xvi. l' xix. that is, the contract was on both sides obligatorie. Richard Overton and Elizabeth Overton owners of a mill THEN, theretofore, erected were obliged to permit David Ross to work it, for his own benefit, during seven years, and he was obligated, to pay rent, and, at expiration of that term, to deliver THE SAID MILL IN TENENTABLE REPAIR.

These obligations and the rights correspondent were altern, were causes and effects each of other.

David Ross, so long as he could work the mill ERECTED THEN, mill which had been ERECTED BEFORE, was for that<div align="declared">cause,</div>
</blockquote>

===Page 21===
<blockquote>
cause, obliged to pay, and Richard Overton and Elizabeth Overton had a right to demand the effect of that cause, rent; and Richard Overton and Elizabeth Overton so long as David Ross paid rent, were obliged for the cause, to permit him to work, and he had a right to work, the mill, and they had a right to the rent, the effects of those causes. The rights and obligations of the parities were synchronous, were equal in duration: whilst the mill remained, and could be worked, the lessors had a right to rent; but when the mill had vanished, when a divulsion, a dislocation, a dissipation, of its parts were such that a reunion of those parts, if they could have been found, was impracticable; when the mill existed not otherwise than in fragments, partlie floating on the surface and partlie sunk to the bottom of the James, Chesapeake, or Atlantic, the right to rent ceased.

David Ross by his agreement, obliged himself to pay rents for a mill THEN erected, a mill which might require repairs, during the term, not for a mill TO BE erected; obliged himself to deliver the SAID mill, that is the mill THEN erected, in tenentable REPAIR, not to deliver a NEW mill which might not require repairs during the term, in place of the OLD, if it should be totalie dilacerated.

And that an arbitral sentence, of which the authros appear to have misconceived the law,<div align="declared">may</div>
</blockquote>
===Page 22===
<blockquote>
may by this court be abrogated, is supposed to have been admitted universalie.

Finalie, the sentence, pronounced ''partibus absentibus'' when the hparties were absent, ''imo partibus inauditis'' when the hparties were not heard, was for that reason a nullitie, surelie no proof is required of that.

The court therefore doth adjudge and decree, that the injunction, &c.' be perpetual, as it is hereby prounounced to be perpetual; and that the defendents Richard Overton, Elizabeth Overton and Samuel Overton reimburse to the plaintiff the costs expended by him in prosecuting this suit.
</blockquote>
==References==
<references/>

[[Category:Cases]]

Overton v. Ross

2015-02-25T19:25:39Z

Cjhunter:

{{DISPLAYTITLE:''Case of Overtons Mill''}}
[[File:WytheCaseOfOvertonsMill1803.jpg|thumb|right|300px|First page of ''The Case of Overtons Mill: Prolegomena, in the Richmond Common-Law District Court, Elizabeth Overton and Richard Overton, Plaintiffs, Against David Ross, Defendent'' by George Wythe (Richmond, 1803?). Image from a copy at the Library of Virginia.]]
''The Case of Overtons Mill'' (1803)<ref>George Wythe, ''The Case of Overton's Mill'' (Richmond, 1803?).</ref> discussed whether the renter of a mill was liable for the repairs to a mill that was destroyed due to circumstances beyond the renter's control. Wythe heard this case as the chancellor for the Superior Court of Chancery of the Richmond District, one of the three Chancery Court Districts that were created after the Virginia Assembly dissolved the High Court of Chancery in 1802.
==Background==
David Ross leased land and the mill on it for seven years from Richard Morris, who was acting as an agent for Richard and Elizabeth Overton. The lease said that Ross would be responsible for the construction of certain buildings, making improvements, paying taxes, and restoring the mill "in tenentable repair" by the end of the lease term.

In January 1784, an unexpected ice movement beyond Ross's control destroyed the mill. Ross believed he was not obligated under the lease to rebuild the mill or continue paying rent, but the Overtons disagreed. The Overtons and Ross brought the case to arbitrators. In 1784, the arbitrators issued a decision stating that Ross was obligated to continue paying rent and to "perform the other covenants contained in the said lease".

The Overtons later filed suit in the common-law side of Richmond District Court, claiming that Ross failed to uphold his responsibilities under the lease, and that he therefore owed the Overtons £6000. Ross stated that he had upheld all his duties under the lease, and that nowhere in the arbitrators' decision was there mention of a possibility of £6000 in damages. The court awarded the Overtons £3500 in damages plus court costs, and Ross appealed the decision to the Virginia Supreme Court of Appeals.

==The Supreme Court of Virginia's Decision (1802)==
The Supreme Court affirmed the District Court's decision and awarded costs to the Overtons.<ref>''Ross v. Overton'', 7 Va. (3 Call) 309 (1802).</ref>

Ross's first objection to the District Court's decision was that the date the Overtons claimed the contract was signed in their complaint was different than the date given in the arbitrators' decision. The arbitrators said that the contract was signed on May 22, 1784. In their complaint, the Overtons said that they signed the contract on ___ 25, 1784 (they left out the month). Ross argued that this discrepancy between dates voided the agreement. The Supreme Court said that because the parties agreed on all other points, in a situation where the plaintiff gave no date or an impossible date for the contract signing in the complaint, the plaintiff can plead that the contract was signed on any day that the plaintiff can prove the contract was delivered. Because the arbitrators must have had a copy of the contract signed May 22, 1784, the Overtons could use that as the alleged date the contract was signed.

Ross's second objection was that the arbitrators made a mistake in interpreting the law when they required Ross to continue paying the rent and performing other duties under the rental contract, even after the mill was destroyed by an event beyond Ross's control. While a court normally should not overturn an arbitrator's decision, it can do so in situations in which the arbitrator made an error of law. The Supreme Court said that this question of law was a doubtful one that required substantial argument on both sides to determine the answer. Courts will not overturn an arbitrator's decision just because the arbitrator erred in interpreting a legal question that a reasonable person thinks could go either way. Ross also argued that the covenant of quiet enjoyment meant that the Overtons insured the property against all accidents, but the Court said that the covenant only protected against legal claims, not a "separation of continuity" such as robbery or loss of property through destruction.
==Wythe's Discussion of the Supreme Court Decision==
Wythe dissected the Supreme Court's decision, bit by bit.

Wythe said that the Supreme Court was dodging the issue of the discrepancy between the date the Overtons alleged the contract was signed and the date given in the arbitrators' decision. Contrary to the Supreme Court's contention, "the 25th of 1784" is just as much a date as "May 25th, 1784". The [https://en.wikipedia.org/wiki/Areopagus Aeropagus] would have considered "the first date of X Olympiad" a date, even if the month or day of the month were omitted. No philosopher, whether Aristotle, [https://en.wikipedia.org/wiki/Petrus_Ramus Ramus], [https://en.wikipedia.org/wiki/John_Milton Milton], or [https://en.wikipedia.org/wiki/William_Duncan_%28philosopher%29 Duncan], would instruct their students to make such a large assumption as to say that the Overton's allegations had "no date". Wythe also cited to John Locke's [[Works of John Locke|''Essay on Human Understanding'']<ref>John Locke, ''Essay on Human Understanding'', Book 3, Ch. 6.</ref> for further support. At any rate, the Overtons said that the contract was signed on the 25th, which cannot magically become the 22nd (the date cited in the arbitrators' decision) no matter how hard they try.

Wythe said that the question of whether the Overtons guaranteed Ross against all forms of loss was the wrong one; the proper question was whether Ross should still be liable for rent after the destruction of the mill, which Wythe compared to a scene described in [[Odyssey of Homer|Homer's ''Odyssey'']].<ref>''"Ὄσσαν ἐπ᾽ Οὐλύμπῳ μέμασαν θέμεν, αὐτὰρ ἐπ᾽ Ὄσσῃ Πήλιον εἰνοσίφυλλον"''. "To heave upon Olympus Ossa strove,/On Ossa, Pelion's vacillating grove". Wythe, ''The Case of Overton's Mill'', 9, citing Homer, ''Odyssey'': Book 11, ln. 315-16. This refers to Otus and Ephialtes, the [http://en.wikipedia.org/wiki/Aloadae Aloadae]. The Aloadae were giants who were sons of [http://en.wikipedia.org/wiki/Iphimedeia Iphimedeia] and Poseidon. The Aloadae sought to storm heaven by piling Mount Ossa on Mount Olympus, then Mount Pelion on top of Mount Ossa.</ref>

Wythe said that there were plenty of previous decisions in which courts had said they could properly assume appellate jurisdiction over arbitrators' decisions, regardless of whether the arbitrators had made a mistake of fact or law. The doubtfulness of the law and the facts make this case an especially strong candidate for a new trial or appellate hearing, rather than removing it from a court's jurisdiction. If a court in equity, such as the Chancery Court, were to follow English common-law precedents to determine when it could award a new trial, then Wythe opined that it would find itself as badly misled as Demea was by his servant Syrus in [[Publii Terentii Afri Comoediae Sex|Terence's comedy ''The Brothers'']]<ref>Terence, ''Adelphoe (The Brothers)'', Act 4, Scene 2.</ref> and equally worthy of derision for its gullibility. Wythe added (for emphasis, perhaps?) that this is a situation in which it would be better if English caselaw precedent had simply been consumed by the [https://en.wikipedia.org/wiki/Lethe Lethe] (one of the rivers flowing through Hades that inflicted forgetfulness on anyone who drank from its waters), much as Overtons Mill was overtaken by the James River.

Wythe wondered aloud what might have resulted had Ross employed more attorneys at the Supreme Court; perhaps, Wythe pondered, the Supreme Court might have decided that a landlord was responsible for insuring rental property.

Wythe also criticized the Supreme Court opinion for inconsistency, saying that "(t)he question or case, as it is some times called, is in four places SUPPOSED to be doubtful, in a fifth place is EVINCED, i'e,' proved, to be doubtful, in (a) sixth place, as appeareth by the words, 'it is our opinion, that the arbitrators did not mistake the law,' is EVINCED, proved, NOT to be doubtful."<ref>Wythe, ''Case of Overtons Mill'', 13.</ref> To Wythe, the legal question's doubtfulness in the Supreme Court opinion seemed to appear and reappear as easily as [http://en.wikipedia.org/wiki/Gyges_of_Lydia Gyges of Lydia] as described in [http://lawlibrary.wm.edu/wythepedia/index.php/Platonis_Philosophi_Quae_Extant_Graece|Plato's ''Republic''].<ref>Plato, ''Republic'' 2. According to Plato's story, Gyges was a shepherd who discovered a magic ring that allowed him to become visible or invisible depending on the direction he turned its bezel.</ref>

Wythe mulls over what is truly equitable in a situation in which the legal rule is in doubt. If an even number of judges are assumed to fall on both sides of the argument, then a defendant should be acquitted.<ref>Wythe uses the Latin phrase ''sententiis paribus reus absolvitur''. Wythe, ''Case of Overtons Mill'', 14.</ref> Wythe notes that "the voice of wisdom, Minerva<ref>Here, Wythe refers to the Roman goddess Minerva instead of the Greek goddess Athena, even though he is citing a play written by a Greek poet. This may have been normal for a scholar of his time who was trained in the classics. Until modern times, normal practice for English translators was to use the Latin equivalent of ancient Greek names, since that is what they were used to from reading Virgil and Ovid in school. Homer, Robert Fagles (trans.), "The Spelling and Pronunciation of Homeric Names", in ''The Iliad'' (New York: Penguin Books, 1991), 65.</ref> herself" says in Aeschylus's [[Hai tou Aischylou Trageodiai Seozomenai Hepta|play ''The Eumenides'']], that "the law absolve the matricider/For equal votes the court divide."<ref>''The Eumenides'' is the concluding play in Aeschylus's [http://en.wikipedia.org/wiki/Oresteia ''Oresteia'' trilogy], which details the breaking of the curse on the [http://en.wikipedia.org/wiki/House_of_Atreus House of Atreus]. In ''The Libation Bearers'', the second play of the trilogy, Orestes (spurred on by his sister Electra and the god Apollo) kills his mother Clytemnestra, to avenge the death of his father (and Clytemnestra's husband) Agamemnon. In ''The Eumenides'', the Furies (spirits who avenge patricide) seek to execute Orestes for his deed. Athena (whom the Romans equated to their goddess Minerva) steps in and forms a jury of twelve people to judge Orestes's guilt, stating that a tie would result in acquittal. The jury splits evenly, and Athena convinces the Furies to accept Orestes's acquittal.</ref> One of [[Works of Francis Bacon|Francis Bacon's maxims]] states that when rules of law cross each other, the worthier principle should be upheld.<ref>Francis Bacon, "Verba fortius accipiuntur cont a proferentem", ''The Works of Francis Bacon: Law Tracts. Maxims of the Law''.</ref>

==The Chancery Court's Decision==
After the Virginia Supreme Court upheld the common-law Richmond District Court's decision, Ross filed a bill in equity with the Richmond District Superior Court of Chancery,<ref>In 1802, the Virginia Assembly split the High Court of Chancery into three Superior Courts of Chancery, each court assigned to a geographic district, to decrease the equity courts' backlog. Thomas Jefferson Headlee, Jr., ''The Virginia State Court System, 1776- '' (Richmond, VA: Virginia State Library, 1969), 13. Wythe became the chancellor for the Richmond District.</ref> which heard the case on May 25, 1803. Wythe granted Ross a permanent injunction against the Richmond common-law District Court's decision and awarded Ross court costs for the Chancery Court stage.

Wythe begins the text of his opinion by describing the many ways beyond a renter's control that a leased building can be destroyed. Wythe quotes the description in [[Works of Virgil, Containing His Pastorals, Georgics and Æneis|Virgil's ''Georgic'']] of Mount Etna erupting,<ref>''"______Quoties Cyclopum effervere in agros Vidimus undantem ruptis fornacibus Ætnam Flammarum que globos liquefactaque volvere saxa;"'' Virgil, ''Georgic'', Lib. I, ln. 471-73.</ref> the sacking of Troy as described in [[Works of Virgil, Containing His Pastorals, Georgics and Æneis|Virgil's ''Aeneid'']],<ref>''"______________jam proximus ardet Ucalegon"''. Virgil, ''Aeneid'', 2.311. In this line, Aeneas notes that he is next to [http://en.wikipedia.org/wiki/Ucalegon Trojan elder Ucalegon's] house, which was burned by the Achaeans when they sacked Troy.</ref> and Pliny the Elder's description of the nature of wind in his [[C. Plinii Secundi Naturalis Historiæ|''Natural History'']].<ref>Pliny the Elder, ''C. Plinii Secundi Naturalis Historiæ'', Tom. I, Lib. II, Cap. XLVIII. Pliny the Elder died while investigating Mount Vesuvius's eruption; perhaps Wythe had this in the back of his mind when he included these cites in his litany of natural disasters?</ref> Wythe also cites Titus Lucretius Carus's description of meterological phenomena in his book [[De Rerum Natura|''On the Nature of Things'']]<ref>Titus Lucretius Carus, ''De Rerum Natura'', 6.424.</ref> and Tacitus's description in his [[C. Cornelii Taciti Opera, Quae Exstant|''Annals'']] of a whirlwind that destroyed Campania.<ref>Cornelius Tacitus, ''Annals'', 16.13.</ref>

Wythe says that Ross's situation is similar to those described in the ancient works. In such a situation, where a tenant lost their property through no fault of their own, no judge could find it equitable to force the tenant to continue to pay rent. This is one of those situations a court of equity was designed for, a situation in which equity can properly mitigate the harsh results the common law would dictate. A judge in equity investigating Ross's situation should ask whether such a disaster was rationally expected; and if so, whether the parties agreed that the tenant should continue paying rent until the mill was rebuilt.

Wythe said that the arbitrators' decision did not follow the law. He cited [[Corpus Juris Civilis|Justinian's ''Digest'']] for the idea that a contract is a reciprocal obligation.<ref>Justinian Dig. 50.16.19.</ref> While the mill remained operational, the Overtons had a right to demand work and rent from Ross. Ross, in turn, had the right to work the mill. Once the mill disappeared, Ross's obligation to pay rent or to work on the mill ceased.
==Supreme Court of Virginia's Decision (1808)==
Morris and the Overtons appealed Wythe's decision to the Virginia Supreme Court of Appeals, which reversed Wythe's decree.<ref>''Morris v. Ross'', 12 Va. (2 Hen. & M.) 408 (1808).</ref>

Supreme Court judge (and former Wythe student) [[St. George Tucker]] joined judges [https://en.wikipedia.org/wiki/Spencer_Roane Spencer Roane] and [https://en.wikipedia.org/wiki/William_Fleming_%28judge%29 William Fleming] in stating that a court of equity should not grant relief in a case in which a court of law has already decided on the same points of controversy. Judge Fleming expressed sympathy for Ross's position and said that he might have ruled differently had he been one of the arbitrators, but that Ross was still bound by the arbitrators' decision.

==Transcribed text of the opinion: The Case of Overtons Mill==
===Page 1===
<blockquote>
PROLEGOMENA

In the Richmond common-law district court, Elizabeth Overton and Richard Overton, ''plaintiffs'', against David Ross, ''defendent''.

THE plaintiffs demanded 6000 pounds, complaining and declaring that the defendent, who had, on the 25th day of       in the year 1784, by a sealed writing obligatorie, to the court shewn, the date whereof is the same day and year, acknowledged himself to be indebted to the plaintiffs the said 6000 pounds, yet refused to pay the money to them, wherefore they sued.

The writing obligatorie, in an assignment of the breach of its condition, is said to have been executed on the       day of      , in the year 1784.

It was, by the condition, to be void, if David Ross should perform the award of three persons, mutualy chosen to determine a controversie between the parties relative to a lease or agreement.

The agreement, signed and sealed by David Ross only, purported, that Richard Morris, on behalf of Richard Overton and Elizabeth Overton, leased to David Ross a parcel of land, with a grist-mill then erected thereon,<div align="right">a</div>
</blockquote>
===Page 2===
<blockquote>
a fisherie, and other advantages, to be holden and enjoied by him, free from all interruption and molestation whatsoever, for seven years from August, 1783; and the David Ross engaged to build certain aedifices, and make other improvements, pay taxes, restore the said mill, in tenentable repair, with the improvements, at expiration of the term, and during the continuance thereof, pay rents. Subjoined are these words: 'a more particular agreement, or lease in due form, shall be executed, at any time either of the parties shall require; this agreement being taken for the basis of it. David Ross.'

The arbitrators, after reciting their authoritie, i'e', the writing obligatorie, on which the action is supposed to have been brought, and which in the award, but no where else, is alleged to be dated the 22d day of May, 1784, say, "they met, and considered the lease or agreement aforesaid,' the substance whereof they repeat, adding, 'it appears by the admission of each partie, that in januarie, 1784, by an extraordinarie and unexpected movement of the ice, the mill-house was intirelie demolished, and the said Ross had it not in his power to prevent the same. In persuance of the submission aforesaid, we do award and determine that the said David Ross shall pay the rents reserved in the said lease or agreement, notwithstanding the accident aforesaid, and that the said David Ross shall complie with and perform the other covenants contained in the said lease.'<div align="right">The</div>
</blockquote>
===Page 3===
<blockquote>
The defendent pleaded that he had performed the condition of the writing obligatorie in the declaration mentioned, and that there was no such award as is mentioned by the plaintiffs in their breaches assigned.

The plaintiffs replied generaly. Issues were joined; and the jurie found a verdict for the plaintiffs, assessing 3500 pounds damages, for which, with costs, judgement was rendered.

The defendent appealed.

Opinion of the court of appeals in affirmance of the district courts judgement, with quaries and remarks. Paragraphs of the opinion are in italic characters.

<center>In the court of appeals,</center>
Between David Ross, appellant, and Elizabeth Overton and Richard Overton, appellees,

''In this cause, two objections have been made to the judgement of the district court: first, that there is a variance between the award and the bond of submission stated in the declaration, the former refering to a bond dated the 22d of May, 1784, and the declaration stating the bond in suit to be dated the 25th of       1784. In supporting this objection the counsil principaly relied on the case of'' Turner v' Moffet ''in this court, reported in '' 2 Wash' 71. ''But that case does not apply; since the variance was apparent on the record, against which no averment is admissible: and''<div align="right">Was</div>
</blockquote>
===Page 4===
<blockquote>
Was not the variance in the principal case, if a variance be there, apparent on the record? The obligation and award are both exhibited in court, and entered in the book registering allegations of the parties litigant and acts of the court, that is, were recorded; and is not the variance, between the bond and award which is shewn by comparison of one with the other of them, as apparent on the record here as the variance between the submission and award in the case cited?

''It was truly observed by the attorney general, that that case was distinguishable from the present, which, being a bond for the submission, was a matter'' en pais, '' and the supposed variance might be corrected by averment. The declaration states, that the defendent, on the 25th day of       1784, by obligation, the date whereof is the same day and year, bound himself to the plaintiffs. In the breaches assigned, annexed to the declaration, after reciting the lease to the defendent, and its essential covenants, on his part, that differences had arisen, which they had mutually agreed to refer to arbitration, the plaintiffs aver, that they entered into bond, similar to that entered into by the defendent, to abide by the award, and that the defendent, on the same day, to with, the       day of       1784, executed the bond in the declaration mentioned. It is obvious, from the award, that the arbitrators had before them not Rosses bond but, that entered into by the plaintiffs, which, they say, is dated the 22d of May, 1784.''<div align="right">If</div>
</blockquote>
===Page 5===
<blockquote>
If the variance were only 'supposed,' were an ''hypothesis'', that is, if no variance were, an averment to 'correct' it was superfluous, the date of the bond was correct, without averment. If between the 25th day of       1784, and the 22d day of May, 1784, a variance be, what will authorize averment, that those days were the same? An evasion of this question may be, but a categoric answer to it is not, expected: evasion, as hereafter appeareth, thus: 'the bond hath no date;' and 'we consider the date of the bond,' 25th of       in the year 1784, 'and the blank date of averment,'      day of       in the year 1784, 'to be no date.'

''Without going over the several cases cited, the rate laid down in'' I ''lord Raym' 335 seems to have run thro' them all, that is, that if a bond hath either none or an impossible dated, the plaintiff may aver an day which he can prove the bond to have been delivered.''

No man ought to have controverted the rectitude of this rule, if lord Raymond had not laid it down. But every man is not convinced that the rule is proved to APPLY to this case by such argumentation as

''The present case is that of no date to the bond''.

Did Aristotle, Ramus, Milton, Duncand, &c. in their dialectic institutions, teach their disciples that in a syllogism the minor proposition, as is done here by these words, 'the present case is that of no date to the bond,' may be taken for granted?<div align="right">''For''</div>
</blockquote>
===Page 6===
<blockquote>
''For the counsils curious criticism, refering the'' 25 ''day of something to that day of the year was calculated only to occasion the mirth it produced. We consider that, as well as the blank date averment, to be no date, and of course, there is no variance between that and the true date mentioned in the award.''

Passing over some 'curious' phrases occuring in the paragraph immediatelie preceding, and the conclusion, as 'curious' as any of them, namelie, 'of course there is no variance between that,' the 25 day of       in the year 1784, 'and the blank date averment,' the       day of       1784, 'there is no variance between these "and the true date mentioned in the award,' that is, there is no variance between the date of a bond 'of no date,' or a bond of a date which 'we consider to be no date, and the date of a bond which hath a true date; passing over this phraseologie perplexed, inexplicable, inconsistent, we ask,

Can the bond, which Richard Overton and Elizabeth Overton recite in their declaration, and whereof the date is there alleged to be the same day and year, i'e,' the 25 day of       in the year 1784, be trulie said to bear no date? Is not a year, distinguished by the number of isochronous revolutions computed from a known epoch, a date no less trulie, tho' less preciselie, than a month, or a particular day of any month specially named, in that year? An olympiad was a quaternion or period of four years used antiently by the greeks for sup-<div align="right">putations</div>
</blockquote>
===Page 7===
<blockquote>
putations of time: would Areopagus have 'considered a bond,' the date whereof was in the first, second, third or fourth, year of some one olympiad, to be a bond 'of no date,' because the name of hecatombaeon, or of scirrophorion, or of some one of the ten intervening months, or the day of the month was omited? The roman aera was the building of the citie; would the ''praetor'' have 'considered a bond,' the date whereof was in a certain year of the citie build, to be a bond 'of not date?' Europeans and british americans observe, for the same purpose, Jesus Christs nativitie; if lord Raymond in Westminsterhall had said 'he considered' a bond the date whereof is the 25 day of       in the year 1784, to be 'of no date,' it probalie would have 'occasioned' there no less mirth, than a counsils 'criticism' produced in the capitol, when some reasons for affirming the district courts judgement were attempted to be explained; and when that affirmance was proclaimed, might not one of the auditorie have asked ''risum taneatis amici?''*

In truth no date could have been avered, but the 25 day of some month between december, 1783, and june of the succeeding year, for on the 15th day of that month the arbitrators power expired.<div align="right">The</div>
----
----
<div style="font-size: 85%;">* Perhaps the foregoing concionation, by this time, has disposed the auditors to oscitation rather than cachinnation; they might be too drowsie to laugh.</div>
</blockquote>
===Page 8===
<blockquote>
The year was certain, 1784. The day of some month was certain, the 25th. And although the plaintiffs could have supplied the blank left for the month with May, they could not aver the 25th to have been the 22d day.

Again, if in this case Richard Overton and Elizabeth Overton could have avered the bond to have been dated any day on which they could have proved the bond to have been delivered, we ask, where in the declaration, or in the assignment of breaches, doth an averment, that the bond was dated the 22d day of May, 1784, appear? is an allegation to that purpose in the award, which is an act of the arbitrators, an averment of the plaintiffs Richard Overton and Elizabeth Overton!

''In every other thing, in parties, in controversie, and arbitrators, they agree. And on this point there is no error in the judgement of the district court.''

To this conclusion they who can admit the truth of its premisses, will subscribe.

''On the second point, it was argued by mr. Wickham, that under the covenant for quiet enjoiment the Overtons were the insurers of the propertie against all accidents. But surelie that covenant, which does not* differ essentialie from others of the like kind, only obliges the lessor to defend the enjoiment of the lessor to defend enjoiment of the lessee against legal clames, and not against a separa-''<div align="right">''tion''</div>
----
----
<div style="font-size: 85%;">* DIFFER ESSENTIALIE from others of the LIKE KIND! are differences between individuals of like kinds, like species, called ESSENTIAL? See Lockes essay on human understanding, book III, chap. VI.</div>
</blockquote>
===Page 9===
<blockquote>
''tion of continuitie from robbers, thieves, trespassers, or the ice.''

Mr. Wickhams argument; if it be vicious, seems an ''ignoratio clenchi'', mistake of the question. Let the question, whether Richard Overton and Elizabeth Overton, or their friend Richard Morris, under the covenant for quiet enjoiment, were insurers of the propertie against all accidents, or were obliged to defend the enjoiment, against only legal clames? let that question not be proper: this question, whether, without a special covenant, they remained insurers of their own propertie, that is; were obliged, when it was demised to a tenant paying rent for enjoiment of it, to sustain the loss of that propertie irreparable, so that it could be enjoied no longer, prostrated and crushed by islands of ice, piled one upon another, resembling a mountain, and exhibiting a spectacle no less tremendous than when Ephialtes and Otus,
<blockquote>Ὄσσαν ἐπ᾽ Οὐλύμπῳ μέμασαν θέμεν, αὐτὰρ ἐπ᾽ Ὄσσῃ<br />
Πήλιον εἰνοσίφυλλον<ref>Homer, ''Odyssey'', XI, 315-316.</ref><br />

To heave upon Olympus Ossa strove,<br />
On Ossa, Pelion's* vacillating grove?</blockquote>

or rather, whether David Rosses obligation to pay rent for a mill THEN ERECTED, THEN BEING, continued after the SAID mill was DISJECTED, CEASED TO BE? this is a proper question.<div align="right">''This''</div>
----
----
<div style="font-size: 85%;">* Vacilians arbor Lucret'lib'v, v' 1097.</div>
</blockquote>
===Page 10===
<blockquote>
''This second objection is, that where it is apparent in the award that the arbitrators decided upon principles, in which they were mistaken, either in law or fact, the court will set aside the award, and they were so, in the present case, since it being stated, that the millhouse was intirelie demolished by an extraordinarie and unexpected movement of the ice, which Ross had it not in his power to prevent, they mistook the law, when they awarded Ross to pay the rent and perform his other covenants in the lease, notwithstanding the accident. For the sake of precedent, the court, first, considered how far they ought to interfere with awards, upon this ground, and are of opinion, that they ought not to consider themselves as an appellate court from the judgement of the arbitrators, and reverse it, merelie because we differ from them on a doubtful question;''

That courts of civil institution ordinarilie have not appellate jurisdiction over sentences of arbitrators, unless those compromissorie judges mistake a fact, or the law, would not have been disputed if no precedents, of which manie however, earlier than this, are extant, had approved the doctrine.

''But ought to place ourselves in the place of a court applied to, to grant a new trial, because the verdict is contrarie to evidence, which ought to be granted only in case of a plane deviation, and not in a doubtful one, merelie because the court, if on the jurie, would have given a different verdict; since that would be to<div align="right">''assume''</div>
</blockquote>
===Page 11===
<blockquote>
''assume the province of the jurie, whom the law hath appointed the triers.''

What is meant by 'case of a plane deviation?' a deviation, a departure, from what? from the truth of facts planelie proven, or from the rule planelie praescribed by law? are new trials never granted in even 'doubtful cases?' when a court and a jurie disagree, may we not call that a doubtful case? are not new trials some times granted for the very reason that the cases are 'doubtful,' that is, difficult? yea, have not new trials been granted, and even decrees pronounced, in direct opposition to verdicts certified by the courts, before which they were found, to have been 'against the weight of evidence?' with this preceent have the precedents in the cases of [[Southall v. M'Keand|Southall against Mackeand]] and [[Woods v. Macrae|Woods against Macrae]], ''cum multis aliis'', perfect symphonie?

The judge of an equitie court, who by this precedent, is refered to the practice of common law courts, in awarding new trials, to learn in what cases he will be justified in abrogating awards, if he shall, for that purpose, consult those oracles, will probablie be delaied, distracted, misled, disappointed, as in ''Terentii Adelphi, act' 4, scen' 2'', old Demea was by the directions of his servant Syrus, and, in like manner, be derided for this simple credulitie.

''This rational distinction, between plane and doubtful cases, is observed in the books, which''<div align="right">''justifie''</div>
</blockquote>

===Page 12===
<blockquote>
''justifie the court in setting aside awards for mistaken principles.''

Is this period reducible into any one simple proposition from which any conclusion can be drawn?

''That this was, at least a doubtful question is evinced, not only by the number of counsil emploied to discuss it, ''

Did not this 'curious criticism produce the 'mirth it was well calculated to occasion?'

''But from the english'' [sic] ''decisions on the subject;''

Will not every reader of the line next above and its context lament, that english decisions, if they were allowed, and shall be yet allowed, to sanctifie such a sentence as was supposed to have been authorized by them, in this case, had not been ingurgitated in the Lethe, no less irrecoverable than Overtons mill was in the James?

''And on this ground* we think the district court did not err on this second part;''

Were the counsil emploied to discuss the question equalie numerous on both sides? If they had been fewer and equal in number, who knows that the question, whether, in case of such a catastrophe, the tenent was insurer of his landlords propertie? was, not doubtful but on the contrarie, clear in favour of the former? The tenent may have been unluckie that he did not, on his side, trie the experiment: he might perhaps have been more for-<div align="right">tunate,</div>
----
----
<div style="font-size: 85%;">* Doubtfulness of the question evinced partlie by the number of counsil emploied to discuss it.</div>
</blockquote>
===Page 13===
<blockquote>
tunate, if he had not trusted to the proverb, 'in the multitude of counsillors there is safetie?'

''At the same time, observing, that, stating it as a doubtful case, cannot be complained of by the appellant, since,''

The appellant doth complain, addressing a prayer for redress of his grievance to another tribunal, before which one subject of diceptation is this question: when the court of common law hath burthened a tenent with the loss of his landlords rented propertie, which the tenent had not insured, which OMNIPOTENCE destroied, and which human providence, vigilance, and energie could not have preserved, whether a court of equitie be not bound to exonerate the tenent?

''On the whole, it is our present opinion that the arbitrators did not mistake the law.''

The question or case, as it is some times called, is in four places SUPPOSED to be doubtful, in a fifth place is EVINCED, i'e,' proved, to be doubtful, in this sixth place, as appeareth by the words, 'it is our opinion, that the arbitrators did not mistake the law,' is EVINCED, proved, NOT to be doubtful. The vicissitudes of ambiguitie and certantie in the question or case seem to have been as quick, and as easilie produced, as those of the visibilitie and evanescence of Gyges the Lydian, who as Plato, ''de republ,' lib II, p''' 369, related, could effect these miracles, could appear and disappear when he pleased, by<div align="right">means</div>
</blockquote>
===Page 14===
<blockquote>
means of a ring, one, by turning the beazle of it towards himself, and the other, by an opposite exposure.

If the law be so, that, after a rented subject had been, by a tempest, reduced to atoms, if not annihilated, the tenent must pay the rent, notwithstanding, will the professors of law class it among liberal sciences, or this part of it at least with the reliques of dynastic, lordlie, feodal barbarism?

But perhaps the question may yet be doubtful. It seems possible from the words OUR PRESENT OPINION: if the question be doubtful, and to each side of it we suppose the same number of judges to incline, the voice of wisdom, Minerva herself, is ''sententiis paribus reus absolvitur'', the doom of equal suffrages is acquital,
<blockquote>

The laws absolve the * matricider<br />
For equal votes the court divide.</blockquote>

When competent judges of law declare a legal question to be doubtful, doth not the law seem at variance with itself? and then what umpire can be, with so much proprietie called to decide the question as aequitie? is not this, not philanthropic only but, the verie praecept of law? That is a point, saith Francis Bacon 'in his maxims, worthie to<div align="right">'be</div>
----
----
<div style="font-size: 85%;">* Orestes.</div>
</blockquote>
===Page 15===
<blockquote>
be observed generalie in the rules of law, that when they encounter and cross one another, in any case, it be understood which the law holdeth worthier and to be prefered, and it is in this particular, very notable to consider, that this rule, ''verba fortius accipiuntur cont a proferentem'', being a rule of some strictness and rigor, doth not as it were its office but in absnece of other rules of more equitie and humanitie.'

If then, in a doubtful case or question the law itself direct equitie to prevale over rigor, did not the arbitrators, whose sentence was the reverse, * MISTAKE THE LAW.

David Ross, after the Richmond common law district courts judgement against him was affirmed, presented a bill in equitie to the Richmond chancerie diestrict court praying an injunction, which was awarded; whether rightly or not is the subject of the present tractate.

<center>In the Richmond district court of chancerie,
Between David Ross, plaintiff, and Richard Morris, Elizabeth Overton, Richard Overton
and Samuel Overton, defendents,</center>

This cause, heard, by consent of parties, the 25th day of may, in the third year of the nineteenth centurie of the christian aera, on the bill, answers, exhibits, and examinations of witnesses, was discussed by the court, after attending to councils arguments, in the terms following:<div align="right">A</div>
</blockquote>
===Page 16===
<blockquote>
A rented farm is ingulphed in the chasm of an earth-quake, or is overwhelmed by the lava, boiling over the brim, and running down the sides, of a burning mountains crater, during an eruption,

______''Quoties Cyclopum effervere in agros Vidimus undantem ruptis fornacibus Ætnam Flammarum que globos liquefactaque volvere saxa;''

A rented house is consumed by fulgurant or hostile fire, or is submerged and depressed in a deluge, or is swept off its site by a torrent, a * typhon, a prester, or a hurricane, or subverted or dilapidated by a landslip, a snowslip, or as in this instance, by an ice-slip;

Eversion of some houses, adjacent to another already burning is necessarie to prevent wide devastation, otherwise, inevitable, the fire, ''vulcano superante'', baffling all attempts to extinguish it or interrupt its progress; the flame is now, ''furentibus Austris'', in a high wind, communicated, to the contiguous aedifices,

''______________jam proximus ardet Ucalegon:''

the houses nearest are prostrated and destroied accordinglie; one of these victims, thus devoted for salvation of those in danger of being involved in the combustion, is a leased tenement, for which a rent is paible;

If any such a case as hath been described, and one of them the principal case appeareth<div align="right">to</div>
----
----
<div style="font-size: 85%;">* Plinii, tom' I. lib' II, cap. XLVIII. Lucretii lib.' VI. V. 424.</div>
</blockquote>
===Page 17===
<blockquote>
to be, arbitrators condemning the tenent to pay rent with which he was supposed to have charged himself by covenant in general terms, although, without his fault, he was deprived of the ''quid pro quo'', the thing for use of which he should be charged, decide unrighteously, contrary to principles of equitie never doubted.

Human providence, so hebete and limited are our faculties! is inadequate to prevention of numberless contingent evils, cannot guard against them. Happy therefore was institution of a ''curia prætoria'', court of equity, by the benignitie whereof, in opposition to that ''summum jus'', which in the ''curia censoria'' the common law court often times is ''injuria summa'', parties in contracts, as well as in other examples, are freed from detrimentose effects, avoidance of which, if they had been foreboded, would have been stipulated.

If this controversie had been laid, in the first instance, before a court of equitie, the judge herhaps might have propounded these questions: first, was such a disaster expected rationaly to happen? second, would not the parties, if they had thought such an event, and believed it probable, have consented, that, until the mill should be rebuilt, or the matter adjusted some other way, rent should not be paid? and have accordinglie stipulated?

No man who doth fancie that a prodigie will terrifie the citizens residing near James river everie seven years, will answer the form-<div align="right">er</div>
</blockquote>
===Page 18 ===
<blockquote>
er question affirmativelie; nor will any man, who doth not suppose the parties to have been one a knave and the other a fool, give a negative answer to the latter question.

The court of equitie, then, if before it the case had been brought originalie, would undoubtedlie, yes undoubtedlie, have relieved David Ross from his obligation, if indeed he, by his agreement, legalie were obliged, to pay rent during vacation of the subject, out of which the law itself supposeth that rent, ''reditus'', to grow, to return as it were, and which is the fund charged with paiment of the rent; would have placed the parties in the situation where the precepts of natural justice incontestablie direct them to be placed, and where the parties (probablie! yea certainlie, because otherwise no man will believe the tenement would have assumed in everie event the burthen,) would have consented to be placed, if they had supposed that a flood driving before it everie thing in the direction of its current would happen.

A decree, congruous with these sentiments is pure equitie, would leave those, who had the dominion of a mill, and him, who had a temporarie right to what emolument could be produced from it, would leave a landlord and landlady sustaining the loss of a machine their propertie, destroied by misfortune unforeseen and ineluctable, and would leave an ddeclare a blameless usufructuarie discharged from paiment of rent, when he could no longer enjoy<div align="right">that</div>
</blockquote>
===Page 19===
<blockquote>
that, for which the rent was an ______ that for which the rent was a retribution.

A like decree would be justifiable, if a mesuage, invaded by pestilence, should become deleterious.

Again, the contract between the parties was imperfect, was an epitome, compendium, designed to be drawn more particularlie, more explicitelie.

If, before the fatal night, one of them, instituting a prosecution against the other, had demanded performance of this article which is contained in the subjoined clause, and Richard Overton and Elizabeth Overton had insisted, that David Ross in all events should bind himself to deliver a mill, at expiration of the term, and pay rent for it, in the mean time, and David Ross had relied upon the exemption now clamed by him, alleging that at least he was not bound either to rebuild the mill, or, before the lessor should have built it, to pay rent for it, after intire demolition of it by lightning, a * turbo, or other tempest, or an inundation, could any judge, who should have decided this difference in favour of Richard Overton and Elizabeth Overton, have correct notions of justice, equitie, law? By this interrogatorie the querist intendeth a vehement negation.

If a court of equitie, to which one partie had in the first instance applied, would have<div align="declared">that</div>
<div style="font-size: 85%;">* Plinii, tom' I, lib' II, cap' XLVIII. Taciti annal' lib' XVI, c. 13.</div>
</blockquote>
===Page 20===
<blockquote>
declared David Ross not chargeable with rent, even if for paiment thereof his contract, understood in a sense most rigorous, had imported a legal obligation, we are taught, by supreme judical authoritie (in the cases of [[Beverley v. Rennolds|Beverley against Reynolds]], and of [[Dawson v. Winslow|Dawson against Winslow]] that awards contravening principles of equitie, no less than principles of law, may be rescinded.

The arbitral sentence was contrarie to law too.

The contract between Richard Morris, on behalf of the owners of the mill, and David Ross ws what is called synallagmatic, that is reciprocal. ''Labeo definit contractum autem ultro citroque obligationem quod graeci _______ vocant: veluti emptinonem, venditionem, locationem, conductionem, societatem, Digest,' lib' L' tit' xvi. l' xix. that is, the contract was on both sides obligatorie. Richard Overton and Elizabeth Overton owners of a mill THEN, theretofore, erected were obliged to permit David Ross to work it, for his own benefit, during seven years, and he was obligated, to pay rent, and, at expiration of that term, to deliver THE SAID MILL IN TENENTABLE REPAIR.

These obligations and the rights correspondent were altern, were causes and effects each of other.

David Ross, so long as he could work the mill ERECTED THEN, mill which had been ERECTED BEFORE, was for that<div align="declared">cause,</div>
</blockquote>

===Page 21===
<blockquote>
cause, obliged to pay, and Richard Overton and Elizabeth Overton had a right to demand the effect of that cause, rent; and Richard Overton and Elizabeth Overton so long as David Ross paid rent, were obliged for the cause, to permit him to work, and he had a right to work, the mill, and they had a right to the rent, the effects of those causes. The rights and obligations of the parities were synchronous, were equal in duration: whilst the mill remained, and could be worked, the lessors had a right to rent; but when the mill had vanished, when a divulsion, a dislocation, a dissipation, of its parts were such that a reunion of those parts, if they could have been found, was impracticable; when the mill existed not otherwise than in fragments, partlie floating on the surface and partlie sunk to the bottom of the James, Chesapeake, or Atlantic, the right to rent ceased.

David Ross by his agreement, obliged himself to pay rents for a mill THEN erected, a mill which might require repairs, during the term, not for a mill TO BE erected; obliged himself to deliver the SAID mill, that is the mill THEN erected, in tenentable REPAIR, not to deliver a NEW mill which might not require repairs during the term, in place of the OLD, if it should be totalie dilacerated.

And that an arbitral sentence, of which the authros appear to have misconceived the law,<div align="declared">may</div>
</blockquote>
===Page 22===
<blockquote>
may by this court be abrogated, is supposed to have been admitted universalie.

Finalie, the sentence, pronounced ''partibus absentibus'' when the hparties were absent, ''imo partibus inauditis'' when the hparties were not heard, was for that reason a nullitie, surelie no proof is required of that.

The court therefore doth adjudge and decree, that the injunction, &c.' be perpetual, as it is hereby prounounced to be perpetual; and that the defendents Richard Overton, Elizabeth Overton and Samuel Overton reimburse to the plaintiff the costs expended by him in prosecuting this suit.
</blockquote>
==References==
<references/>

[[Category:Cases]]

Overton v. Ross

2015-02-25T19:21:42Z

Cjhunter:

{{DISPLAYTITLE:''Case of Overtons Mill''}}
[[File:WytheCaseOfOvertonsMill1803.jpg|thumb|right|300px|First page of ''The Case of Overtons Mill: Prolegomena, in the Richmond Common-Law District Court, Elizabeth Overton and Richard Overton, Plaintiffs, Against David Ross, Defendent'' by George Wythe (Richmond, 1803?). Image from a copy at the Library of Virginia.]]
''The Case of Overtons Mill'' (1803)<ref>George Wythe, ''The Case of Overton's Mill'' (Richmond, 1803?).</ref> discussed whether the renter of a mill was liable for the repairs to a mill that was destroyed due to circumstances beyond the renter's control. Wythe heard this case as the chancellor for the Superior Court of Chancery of the Richmond District, one of the three Chancery Court Districts that were created after the Virginia Assembly dissolved the High Court of Chancery in 1802.
==Background==
David Ross leased land and the mill on it for seven years from Richard Morris, who was acting as an agent for Richard and Elizabeth Overton. The lease said that Ross would be responsible for the construction of certain buildings, making improvements, paying taxes, and restoring the mill "in tenentable repair" by the end of the lease term.

In January 1784, an unexpected ice movement beyond Ross's control destroyed the mill. Ross believed he was not obligated under the lease to rebuild the mill or continue paying rent, but the Overtons disagreed. The Overtons and Ross brought the case to arbitrators. In 1784, the arbitrators issued a decision stating that Ross was obligated to continue paying rent and to "perform the other covenants contained in the said lease".

The Overtons later filed suit in the common-law side of Richmond District Court, claiming that Ross failed to uphold his responsibilities under the lease, and that he therefore owed the Overtons £6000. Ross stated that he had upheld all his duties under the lease, and that nowhere in the arbitrators' decision was there mention of a possibility of £6000 in damages. The court awarded the Overtons £3500 in damages plus court costs, and Ross appealed the decision to the Virginia Supreme Court of Appeals.

==The Supreme Court of Virginia's Decision (1802)==
The Supreme Court affirmed the District Court's decision and awarded costs to the Overtons.<ref>''Ross v. Overton'', 7 Va. (3 Call) 309 (1802).</ref>

Ross's first objection to the District Court's decision was that the date the Overtons claimed the contract was signed in their complaint was different than the date given in the arbitrators' decision. The arbitrators said that the contract was signed on May 22, 1784. In their complaint, the Overtons said that they signed the contract on ___ 25, 1784 (they left out the month). Ross argued that this discrepancy between dates voided the agreement. The Supreme Court said that because the parties agreed on all other points, in a situation where the plaintiff gave no date or an impossible date for the contract signing in the complaint, the plaintiff can plead that the contract was signed on any day that the plaintiff can prove the contract was delivered. Because the arbitrators must have had a copy of the contract signed May 22, 1784, the Overtons could use that as the alleged date the contract was signed.

Ross's second objection was that the arbitrators made a mistake in interpreting the law when they required Ross to continue paying the rent and performing other duties under the rental contract, even after the mill was destroyed by an event beyond Ross's control. While a court normally should not overturn an arbitrator's decision, it can do so in situations in which the arbitrator made an error of law. The Supreme Court said that this question of law was a doubtful one that required substantial argument on both sides to determine the answer. Courts will not overturn an arbitrator's decision just because the arbitrator erred in interpreting a legal question that a reasonable person thinks could go either way. Ross also argued that the covenant of quiet enjoyment meant that the Overtons insured the property against all accidents, but the Court said that the covenant only protected against legal claims, not a "separation of continuity" such as robbery or loss of property through destruction.
==Wythe's Discussion of the Supreme Court Decision==
Wythe dissected the Supreme Court's decision, bit by bit.

Wythe said that the Supreme Court was dodging the issue of the discrepancy between the date the Overtons alleged the contract was signed and the date given in the arbitrators' decision. Contrary to the Supreme Court's contention, "the 25th of 1784" is just as much a date as "May 25th, 1784". The [https://en.wikipedia.org/wiki/Areopagus Aeropagus] would have considered "the first date of X Olympiad" a date, even if the month or day of the month were omitted. No philosopher, whether Aristotle, [https://en.wikipedia.org/wiki/Petrus_Ramus Ramus], [https://en.wikipedia.org/wiki/John_Milton Milton], or [https://en.wikipedia.org/wiki/William_Duncan_%28philosopher%29 Duncan], would instruct their students to make such a large assumption as to say that the Overton's allegations had "no date". Wythe also cited to John Locke's [[Works of John Locke|''Essay on Human Understanding'']<ref>John Locke, ''Essay on Human Understanding'', Book 3, Ch. 6.</ref> for further support. At any rate, the Overtons said that the contract was signed on the 25th, which cannot magically become the 22nd (the date cited in the arbitrators' decision) no matter how hard they try.

Wythe said that the question of whether the Overtons guaranteed Ross against all forms of loss was the wrong one; the proper question was whether Ross should still be liable for rent after the destruction of the mill, which Wythe compared to a scene described in [[Odyssey of Homer|Homer's ''Odyssey'']].<ref>''"Ὄσσαν ἐπ᾽ Οὐλύμπῳ μέμασαν θέμεν, αὐτὰρ ἐπ᾽ Ὄσσῃ Πήλιον εἰνοσίφυλλον"''. "To heave upon Olympus Ossa strove,/On Ossa, Pelion's vacillating grove". Wythe, ''The Case of Overton's Mill'', 9, citing Homer, ''Odyssey'': Book 11, ln. 315-16. This refers to Otus and Ephialtes, the [http://en.wikipedia.org/wiki/Aloadae Aloadae]. The Aloadae were giants who were sons of [http://en.wikipedia.org/wiki/Iphimedeia Iphimedeia] and Poseidon. The Aloadae sought to storm heaven by piling Mount Ossa on Mount Olympus, then Mount Pelion on top of Mount Ossa.</ref>

Wythe said that there were plenty of previous decisions in which courts had said they could properly assume appellate jurisdiction over arbitrators' decisions, regardless of whether the arbitrators had made a mistake of fact or law. The doubtfulness of the law and the facts make this case an especially strong candidate for a new trial or appellate hearing, rather than removing it from a court's jurisdiction. If a court in equity, such as the Chancery Court, were to follow English common-law precedents to determine when it could award a new trial, then Wythe opined that it would find itself as badly misled as Demea was by his servant Syrus in [[Publii Terentii Afri Comoediae Sex|Terence's comedy ''The Brothers'']]<ref>Terence, ''Adelphoe (The Brothers)'', Act 4, Scene 2.</ref> and equally worthy of derision for its gullibility. Wythe added (for emphasis, perhaps?) that this is a situation in which it would be better if English caselaw precedent had simply been consumed by the [https://en.wikipedia.org/wiki/Lethe Lethe] (one of the rivers flowing through Hades that inflicted forgetfulness on anyone who drank from its waters), much as Overtons Mill was overtaken by the James River.

Wythe wondered aloud what might have resulted had Ross employed more attorneys at the Supreme Court; perhaps, Wythe pondered, the Supreme Court might have decided that a landlord was responsible for insuring rental property.

Wythe also criticized the Supreme Court opinion for inconsistency, saying that "(t)he question or case, as it is some times called, is in four places SUPPOSED to be doubtful, in a fifth place is EVINCED, i'e,' proved, to be doubtful, in (a) sixth place, as appeareth by the words, 'it is our opinion, that the arbitrators did not mistake the law,' is EVINCED, proved, NOT to be doubtful."<ref>Wythe, ''Case of Overtons Mill'', 13.</ref> To Wythe, the legal question's doubtfulness in the Supreme Court opinion seemed to appear and reappear as easily as [http://en.wikipedia.org/wiki/Gyges_of_Lydia Gyges of Lydia] as described in [http://lawlibrary.wm.edu/wythepedia/index.php/Platonis_Philosophi_Quae_Extant_Graece|Plato's ''Republic''].<ref>Plato, ''Republic'' 2. According to Plato's story, Gyges was a shepherd who discovered a magic ring that allowed him to become visible or invisible depending on the direction he turned its bezel.</ref>

Wythe mulls over what is truly equitable in a situation in which the legal rule is in doubt. If an even number of judges are assumed to fall on both sides of the argument, then a defendant should be acquitted.<ref>Wythe uses the Latin phrase ''sententiis paribus reus absolvitur''. Wythe, ''Case of Overtons Mill'', 14.</ref> Wythe notes that "the voice of wisdom, Minerva<ref>Here, Wythe refers to the Roman goddess Minerva instead of the Greek goddess Athena, even though he is citing a play written by a Greek poet. This may have been normal for a scholar of his time who was trained in the classics. Until modern times, normal practice for English translators was to use the Latin equivalent of ancient Greek names, since that is what they were used to from reading Virgil and Ovid in school. Homer, Robert Fagles (trans.), "The Spelling and Pronunciation of Homeric Names", in ''The Iliad'' (New York: Penguin Books, 1991), 65.</ref> herself" says in Aeschylus's [[Hai tou Aischylou Trageodiai Seozomenai Hepta|play ''The Eumenides'']], that "the law absolve the matricider/For equal votes the court divide."<ref>''The Eumenides'' is the concluding play in Aeschylus's [http://en.wikipedia.org/wiki/Oresteia ''Oresteia'' trilogy], which details the breaking of the curse on the [http://en.wikipedia.org/wiki/House_of_Atreus House of Atreus]. In ''The Libation Bearers'', the second play of the trilogy, Orestes (spurred on by his sister Electra and the god Apollo) kills his mother Clytemnestra, to avenge the death of his father (and Clytemnestra's husband) Agamemnon. In ''The Eumenides'', the Furies (spirits who avenge patricide) seek to execute Orestes for his deed. Athena (whom the Romans equated to their goddess Minerva) steps in and forms a jury of twelve people to judge Orestes's guilt, stating that a tie would result in acquittal. The jury splits evenly, and Athena convinces the Furies to accept Orestes's acquittal.</ref> One of [[Works of Francis Bacon|Francis Bacon's maxims]] states that when rules of law cross each other, the worthier principle should be upheld.<ref>Francis Bacon, "Verba fortius accipiuntur cont a proferentem", ''The Works of Francis Bacon: Law Tracts. Maxims of the Law''.</ref>

==The Chancery Court's Decision==
After the Virginia Supreme Court upheld the common-law Richmond District Court's decision, Ross filed a bill in equity with the Richmond District Superior Court of Chancery,<ref>In 1802, the Virginia Assembly split the High Court of Chancery into three Superior Courts of Chancery, each court assigned to a geographic district, to decrease the equity courts' backlog. Thomas Jefferson Headlee, Jr., ''The Virginia State Court System, 1776- '' (Richmond, VA: Virginia State Library, 1969), 13. Wythe became the chancellor for the Richmond District.</ref> which heard the case on May 25, 1803. Wythe granted Ross a permanent injunction against the Richmond common-law District Court's decision and awarded Ross court costs for the Chancery Court stage.

Wythe begins the text of his opinion by describing the many ways beyond a renter's control that a leased building can be destroyed. Wythe quotes the description in [[Works of Virgil, Containing His Pastorals, Georgics and Æneis|Virgil's ''Georgic'']] of Mount Etna erupting,<ref>''"______Quoties Cyclopum effervere in agros Vidimus undantem ruptis fornacibus Ætnam Flammarum que globos liquefactaque volvere saxa;"'' Virgil, ''Georgic'', Lib. I, ln. 471-73.</ref> the sacking of Troy as described in [[Works of Virgil, Containing His Pastorals, Georgics and Æneis|Virgil's ''Aeneid'']],<ref>''"______________jam proximus ardet Ucalegon"''. Virgil, ''Aeneid'', 2.311. In this line, Aeneas notes that he is next to [http://en.wikipedia.org/wiki/Ucalegon Trojan elder Ucalegon's] house, which was burned by the Achaeans when they sacked Troy.</ref> and Pliny the Elder's description of the nature of wind in his [[C. Plinii Secundi Naturalis Historiæ|''Natural History'']].<ref>Pliny the Elder, ''C. Plinii Secundi Naturalis Historiæ'', Tom. I, Lib. II, Cap. XLVIII. Pliny the Elder died while investigating Mount Vesuvius's eruption; perhaps Wythe had this in the back of his mind when he included these cites in his litany of natural disasters?</ref> Wythe also cites Titus Lucretius Carus's description of meterological phenomena in his book [[De Rerum Natura|''On the Nature of Things'']]<ref>Titus Lucretius Carus, ''De Rerum Natura'', 6.424.</ref> and Tacitus's description in his [[C. Cornelii Taciti Opera, Quae Exstant|''Annals'']] of a whirlwind that destroyed Campania.<ref>Cornelius Tacitus, ''Annals'', 16.13.</ref>

Wythe says that Ross's situation is similar to those described in the ancient works. In such a situation, where a tenant lost their property through no fault of their own, no judge could find it equitable to force the tenant to continue to pay rent. This is one of those situations a court of equity was designed for, a situation in which equity can properly mitigate the harsh results the common law would dictate. A judge in equity investigating Ross's situation should ask whether such a disaster was rationally expected; and if so, whether the parties agreed that the tenant should continue paying rent until the mill was rebuilt.

Wythe said that the arbitrators' decision did not follow the law. He cited [[Corpus Juris Civilis|Justinian's ''Digest'']] for the idea that a contract is a reciprocal obligation.<ref>Justinian Dig. 50.16.19.</ref> While the mill remained operational, the Overtons had a right to demand work and rent from Ross. Ross, in turn, had the right to work the mill. Once the mill disappeared, Ross's obligation to pay rent or to work on the mill ceased.
==Supreme Court of Virginia's Decision (1808)==
Morris and the Overtons appealed Wythe's decision to the Virginia Supreme Court of Appeals, which reversed Wythe's decree.<ref>''Morris v. Ross'', 12 Va. (2 Hen. & M.) 408 (1808).</ref>

Supreme Court judge (and former Wythe student) [[St. George Tucker]] joined judges [https://en.wikipedia.org/wiki/Spencer_Roane Spencer Roane] and [https://en.wikipedia.org/wiki/William_Fleming_%28judge%29 William Fleming] in stating that a court of equity should not grant relief in a case in which a court of law has already decided on the same points of controversy. Judge Fleming expressed sympathy for Ross's position and said that he might have ruled differently had he been one of the arbitrators, but that Ross was still bound by the arbitrators' decision.

==Transcribed text of the opinion: The Case of Overtons Mill==
===Page 1===
<blockquote>
PROLEGOMENA

In the Richmond common-law district court, Elizabeth Overton and Richard Overton, ''plaintiffs'', against David Ross, ''defendent''.

THE plaintiffs demanded 6000 pounds, complaining and declaring that the defendent, who had, on the 25th day of       in the year 1784, by a sealed writing obligatorie, to the court shewn, the date whereof is the same day and year, acknowledged himself to be indebted to the plaintiffs the said 6000 pounds, yet refused to pay the money to them, wherefore they sued.

The writing obligatorie, in an assignment of the breach of its condition, is said to have been executed on the       day of      , in the year 1784.

It was, by the condition, to be void, if David Ross should perform the award of three persons, mutualy chosen to determine a controversie between the parties relative to a lease or agreement.

The agreement, signed and sealed by David Ross only, purported, that Richard Morris, on behalf of Richard Overton and Elizabeth Overton, leased to David Ross a parcel of land, with a grist-mill then erected thereon,<div align="right">a</div>
</blockquote>
===Page 2===
<blockquote>
a fisherie, and other advantages, to be holden and enjoied by him, free from all interruption and molestation whatsoever, for seven years from August, 1783; and the David Ross engaged to build certain aedifices, and make other improvements, pay taxes, restore the said mill, in tenentable repair, with the improvements, at expiration of the term, and during the continuance thereof, pay rents. Subjoined are these words: 'a more particular agreement, or lease in due form, shall be executed, at any time either of the parties shall require; this agreement being taken for the basis of it. David Ross.'

The arbitrators, after reciting their authoritie, i'e', the writing obligatorie, on which the action is supposed to have been brought, and which in the award, but no where else, is alleged to be dated the 22d day of May, 1784, say, "they met, and considered the lease or agreement aforesaid,' the substance whereof they repeat, adding, 'it appears by the admission of each partie, that in januarie, 1784, by an extraordinarie and unexpected movement of the ice, the mill-house was intirelie demolished, and the said Ross had it not in his power to prevent the same. In persuance of the submission aforesaid, we do award and determine that the said David Ross shall pay the rents reserved in the said lease or agreement, notwithstanding the accident aforesaid, and that the said David Ross shall complie with and perform the other covenants contained in the said lease.'<div align="right">The</div>
</blockquote>
===Page 3===
<blockquote>
The defendent pleaded that he had performed the condition of the writing obligatorie in the declaration mentioned, and that there was no such award as is mentioned by the plaintiffs in their breaches assigned.

The plaintiffs replied generaly. Issues were joined; and the jurie found a verdict for the plaintiffs, assessing 3500 pounds damages, for which, with costs, judgement was rendered.

The defendent appealed.

Opinion of the court of appeals in affirmance of the district courts judgement, with quaries and remarks. Paragraphs of the opinion are in italic characters.

<center>In the court of appeals,</center>
Between David Ross, appellant, and Elizabeth Overton and Richard Overton, appellees,

''In this cause, two objections have been made to the judgement of the district court: first, that there is a variance between the award and the bond of submission stated in the declaration, the former refering to a bond dated the 22d of May, 1784, and the declaration stating the bond in suit to be dated the 25th of       1784. In supporting this objection the counsil principaly relied on the case of'' Turner v' Moffet ''in this court, reported in '' 2 Wash' 71. ''But that case does not apply; since the variance was apparent on the record, against which no averment is admissible: and''<div align="right">Was</div>
</blockquote>
===Page 4===
<blockquote>
Was not the variance in the principal case, if a variance be there, apparent on the record? The obligation and award are both exhibited in court, and entered in the book registering allegations of the parties litigant and acts of the court, that is, were recorded; and is not the variance, between the bond and award which is shewn by comparison of one with the other of them, as apparent on the record here as the variance between the submission and award in the case cited?

''It was truly observed by the attorney general, that that case was distinguishable from the present, which, being a bond for the submission, was a matter'' en pais, '' and the supposed variance might be corrected by averment. The declaration states, that the defendent, on the 25th day of       1784, by obligation, the date whereof is the same day and year, bound himself to the plaintiffs. In the breaches assigned, annexed to the declaration, after reciting the lease to the defendent, and its essential covenants, on his part, that differences had arisen, which they had mutually agreed to refer to arbitration, the plaintiffs aver, that they entered into bond, similar to that entered into by the defendent, to abide by the award, and that the defendent, on the same day, to with, the       day of       1784, executed the bond in the declaration mentioned. It is obvious, from the award, that the arbitrators had before them not Rosses bond but, that entered into by the plaintiffs, which, they say, is dated the 22d of May, 1784.''<div align="right">If</div>
</blockquote>
===Page 5===
<blockquote>
If the variance were only 'supposed,' were an ''hypothesis'', that is, if no variance were, an averment to 'correct' it was superfluous, the date of the bond was correct, without averment. If between the 25th day of       1784, and the 22d day of May, 1784, a variance be, what will authorize averment, that those days were the same? An evasion of this question may be, but a categoric answer to it is not, expected: evasion, as hereafter appeareth, thus: 'the bond hath no date;' and 'we consider the date of the bond,' 25th of       in the year 1784, 'and the blank date of averment,'      day of       in the year 1784, 'to be no date.'

''Without going over the several cases cited, the rate laid down in'' I ''lord Raym' 335 seems to have run thro' them all, that is, that if a bond hath either none or an impossible dated, the plaintiff may aver an day which he can prove the bond to have been delivered.''

No man ought to have controverted the rectitude of this rule, if lord Raymond had not laid it down. But every man is not convinced that the rule is proved to APPLY to this case by such argumentation as

''The present case is that of no date to the bond''.

Did Aristotle, Ramus, Milton, Duncand, &c. in their dialectic institutions, teach their disciples that in a syllogism the minor proposition, as is done here by these words, 'the present case is that of no date to the bond,' may be taken for granted?<div align="right">''For''</div>
</blockquote>
===Page 6===
<blockquote>
''For the counsils curious criticism, refering the'' 25 ''day of something to that day of the year was calculated only to occasion the mirth it produced. We consider that, as well as the blank date averment, to be no date, and of course, there is no variance between that and the true date mentioned in the award.''

Passing over some 'curious' phrases occuring in the paragraph immediatelie preceding, and the conclusion, as 'curious' as any of them, namelie, 'of course there is no variance between that,' the 25 day of       in the year 1784, 'and the blank date averment,' the       day of       1784, 'there is no variance between these "and the true date mentioned in the award,' that is, there is no variance between the date of a bond 'of no date,' or a bond of a date which 'we consider to be no date, and the date of a bond which hath a true date; passing over this phraseologie perplexed, inexplicable, inconsistent, we ask,

Can the bond, which Richard Overton and Elizabeth Overton recite in their declaration, and whereof the date is there alleged to be the same day and year, i'e,' the 25 day of       in the year 1784, be trulie said to bear no date? Is not a year, distinguished by the number of isochronous revolutions computed from a known epoch, a date no less trulie, tho' less preciselie, than a month, or a particular day of any month specially named, in that year? An olympiad was a quaternion or period of four years used antiently by the greeks for sup-<div align="right">putations</div>
</blockquote>
===Page 7===
<blockquote>
putations of time: would Areopagus have 'considered a bond,' the date whereof was in the first, second, third or fourth, year of some one olympiad, to be a bond 'of no date,' because the name of hecatombaeon, or of scirrophorion, or of some one of the ten intervening months, or the day of the month was omited? The roman aera was the building of the citie; would the ''praetor'' have 'considered a bond,' the date whereof was in a certain year of the citie build, to be a bond 'of not date?' Europeans and british americans observe, for the same purpose, Jesus Christs nativitie; if lord Raymond in Westminsterhall had said 'he considered' a bond the date whereof is the 25 day of       in the year 1784, to be 'of no date,' it probalie would have 'occasioned' there no less mirth, than a counsils 'criticism' produced in the capitol, when some reasons for affirming the district courts judgement were attempted to be explained; and when that affirmance was proclaimed, might not one of the auditorie have asked ''risum taneatis amici?''*

In truth no date could have been avered, but the 25 day of some month between december, 1783, and june of the succeeding year, for on the 15th day of that month the arbitrators power expired.<div align="right">The</div>
----
----
<div style="font-size: 85%;">* Perhaps the foregoing concionation, by this time, has disposed the auditors to oscitation rather than cachinnation; they might be too drowsie to laugh.</div>
</blockquote>
===Page 8===
<blockquote>
The year was certain, 1784. The day of some month was certain, the 25th. And although the plaintiffs could have supplied the blank left for the month with May, they could not aver the 25th to have been the 22d day.

Again, if in this case Richard Overton and Elizabeth Overton could have avered the bond to have been dated any day on which they could have proved the bond to have been delivered, we ask, where in the declaration, or in the assignment of breaches, doth an averment, that the bond was dated the 22d day of May, 1784, appear? is an allegation to that purpose in the award, which is an act of the arbitrators, an averment of the plaintiffs Richard Overton and Elizabeth Overton!

''In every other thing, in parties, in controversie, and arbitrators, they agree. And on this point there is no error in the judgement of the district court.''

To this conclusion they who can admit the truth of its premisses, will subscribe.

''On the second point, it was argued by mr. Wickham, that under the covenant for quiet enjoiment the Overtons were the insurers of the propertie against all accidents. But surelie that covenant, which does not* differ essentialie from others of the like kind, only obliges the lessor to defend the enjoiment of the lessor to defend enjoiment of the lessee against legal clames, and not against a separa-''<div align="right">''tion''</div>
----
----
<div style="font-size: 85%;">* DIFFER ESSENTIALIE from others of the LIKE KIND! are differences between individuals of like kinds, like species, called ESSENTIAL? See Lockes essay on human understanding, book III, chap. VI.</div>
</blockquote>
===Page 9===
<blockquote>
''tion of continuitie from robbers, thieves, trespassers, or the ice.''

Mr. Wickhams argument; if it be vicious, seems an ''ignoratio clenchi'', mistake of the question. Let the question, whether Richard Overton and Elizabeth Overton, or their friend Richard Morris, under the covenant for quiet enjoiment, were insurers of the propertie against all accidents, or were obliged to defend the enjoiment, against only legal clames? let that question not be proper: this question, whether, without a special covenant, they remained insurers of their own propertie, that is; were obliged, when it was demised to a tenant paying rent for enjoiment of it, to sustain the loss of that propertie irreparable, so that it could be enjoied no longer, prostrated and crushed by islands of ice, piled one upon another, resembling a mountain, and exhibiting a spectacle no less tremendous than when Ephialtes and Otus,
<blockquote>Ὄσσαν ἐπ᾽ Οὐλύμπῳ μέμασαν θέμεν, αὐτὰρ ἐπ᾽ Ὄσσῃ<br />
Πήλιον εἰνοσίφυλλον<ref>Homer, ''Odýsseia'', XI, 315-316.</ref><br />

To heave upon Olympus Ossa strove,<br />
On Ossa, Pelion's* vacillating grove?</blockquote>

or rather, whether David Rosses obligation to pay rent for a mill THEN ERECTED, THEN BEING, continued after the SAID mill was DISJECTED, CEASED TO BE? this is a proper question.<div align="right">''This''</div>
----
----
<div style="font-size: 85%;">* Vacilians arbor Lucret'lib'v, v' 1097.</div>
</blockquote>
===Page 10===
<blockquote>
''This second objection is, that where it is apparent in the award that the arbitrators decided upon principles, in which they were mistaken, either in law or fact, the court will set aside the award, and they were so, in the present case, since it being stated, that the millhouse was intirelie demolished by an extraordinarie and unexpected movement of the ice, which Ross had it not in his power to prevent, they mistook the law, when they awarded Ross to pay the rent and perform his other covenants in the lease, notwithstanding the accident. For the sake of precedent, the court, first, considered how far they ought to interfere with awards, upon this ground, and are of opinion, that they ought not to consider themselves as an appellate court from the judgement of the arbitrators, and reverse it, merelie because we differ from them on a doubtful question;''

That courts of civil institution ordinarilie have not appellate jurisdiction over sentences of arbitrators, unless those compromissorie judges mistake a fact, or the law, would not have been disputed if no precedents, of which manie however, earlier than this, are extant, had approved the doctrine.

''But ought to place ourselves in the place of a court applied to, to grant a new trial, because the verdict is contrarie to evidence, which ought to be granted only in case of a plane deviation, and not in a doubtful one, merelie because the court, if on the jurie, would have given a different verdict; since that would be to<div align="right">''assume''</div>
</blockquote>
===Page 11===
<blockquote>
''assume the province of the jurie, whom the law hath appointed the triers.''

What is meant by 'case of a plane deviation?' a deviation, a departure, from what? from the truth of facts planelie proven, or from the rule planelie praescribed by law? are new trials never granted in even 'doubtful cases?' when a court and a jurie disagree, may we not call that a doubtful case? are not new trials some times granted for the very reason that the cases are 'doubtful,' that is, difficult? yea, have not new trials been granted, and even decrees pronounced, in direct opposition to verdicts certified by the courts, before which they were found, to have been 'against the weight of evidence?' with this preceent have the precedents in the cases of [[Southall v. M'Keand|Southall against Mackeand]] and [[Woods v. Macrae|Woods against Macrae]], ''cum multis aliis'', perfect symphonie?

The judge of an equitie court, who by this precedent, is refered to the practice of common law courts, in awarding new trials, to learn in what cases he will be justified in abrogating awards, if he shall, for that purpose, consult those oracles, will probablie be delaied, distracted, misled, disappointed, as in ''Terentii Adelphi, act' 4, scen' 2'', old Demea was by the directions of his servant Syrus, and, in like manner, be derided for this simple credulitie.

''This rational distinction, between plane and doubtful cases, is observed in the books, which''<div align="right">''justifie''</div>
</blockquote>

===Page 12===
<blockquote>
''justifie the court in setting aside awards for mistaken principles.''

Is this period reducible into any one simple proposition from which any conclusion can be drawn?

''That this was, at least a doubtful question is evinced, not only by the number of counsil emploied to discuss it, ''

Did not this 'curious criticism produce the 'mirth it was well calculated to occasion?'

''But from the english'' [sic] ''decisions on the subject;''

Will not every reader of the line next above and its context lament, that english decisions, if they were allowed, and shall be yet allowed, to sanctifie such a sentence as was supposed to have been authorized by them, in this case, had not been ingurgitated in the Lethe, no less irrecoverable than Overtons mill was in the James?

''And on this ground* we think the district court did not err on this second part;''

Were the counsil emploied to discuss the question equalie numerous on both sides? If they had been fewer and equal in number, who knows that the question, whether, in case of such a catastrophe, the tenent was insurer of his landlords propertie? was, not doubtful but on the contrarie, clear in favour of the former? The tenent may have been unluckie that he did not, on his side, trie the experiment: he might perhaps have been more for-<div align="right">tunate,</div>
----
----
<div style="font-size: 85%;">* Doubtfulness of the question evinced partlie by the number of counsil emploied to discuss it.</div>
</blockquote>
===Page 13===
<blockquote>
tunate, if he had not trusted to the proverb, 'in the multitude of counsillors there is safetie?'

''At the same time, observing, that, stating it as a doubtful case, cannot be complained of by the appellant, since,''

The appellant doth complain, addressing a prayer for redress of his grievance to another tribunal, before which one subject of diceptation is this question: when the court of common law hath burthened a tenent with the loss of his landlords rented propertie, which the tenent had not insured, which OMNIPOTENCE destroied, and which human providence, vigilance, and energie could not have preserved, whether a court of equitie be not bound to exonerate the tenent?

''On the whole, it is our present opinion that the arbitrators did not mistake the law.''

The question or case, as it is some times called, is in four places SUPPOSED to be doubtful, in a fifth place is EVINCED, i'e,' proved, to be doubtful, in this sixth place, as appeareth by the words, 'it is our opinion, that the arbitrators did not mistake the law,' is EVINCED, proved, NOT to be doubtful. The vicissitudes of ambiguitie and certantie in the question or case seem to have been as quick, and as easilie produced, as those of the visibilitie and evanescence of Gyges the Lydian, who as Plato, ''de republ,' lib II, p''' 369, related, could effect these miracles, could appear and disappear when he pleased, by<div align="right">means</div>
</blockquote>
===Page 14===
<blockquote>
means of a ring, one, by turning the beazle of it towards himself, and the other, by an opposite exposure.

If the law be so, that, after a rented subject had been, by a tempest, reduced to atoms, if not annihilated, the tenent must pay the rent, notwithstanding, will the professors of law class it among liberal sciences, or this part of it at least with the reliques of dynastic, lordlie, feodal barbarism?

But perhaps the question may yet be doubtful. It seems possible from the words OUR PRESENT OPINION: if the question be doubtful, and to each side of it we suppose the same number of judges to incline, the voice of wisdom, Minerva herself, is ''sententiis paribus reus absolvitur'', the doom of equal suffrages is acquital,
<blockquote>

The laws absolve the * matricider<br />
For equal votes the court divide.</blockquote>

When competent judges of law declare a legal question to be doubtful, doth not the law seem at variance with itself? and then what umpire can be, with so much proprietie called to decide the question as aequitie? is not this, not philanthropic only but, the verie praecept of law? That is a point, saith Francis Bacon 'in his maxims, worthie to<div align="right">'be</div>
----
----
<div style="font-size: 85%;">* Orestes.</div>
</blockquote>
===Page 15===
<blockquote>
be observed generalie in the rules of law, that when they encounter and cross one another, in any case, it be understood which the law holdeth worthier and to be prefered, and it is in this particular, very notable to consider, that this rule, ''verba fortius accipiuntur cont a proferentem'', being a rule of some strictness and rigor, doth not as it were its office but in absnece of other rules of more equitie and humanitie.'

If then, in a doubtful case or question the law itself direct equitie to prevale over rigor, did not the arbitrators, whose sentence was the reverse, * MISTAKE THE LAW.

David Ross, after the Richmond common law district courts judgement against him was affirmed, presented a bill in equitie to the Richmond chancerie diestrict court praying an injunction, which was awarded; whether rightly or not is the subject of the present tractate.

<center>In the Richmond district court of chancerie,
Between David Ross, plaintiff, and Richard Morris, Elizabeth Overton, Richard Overton
and Samuel Overton, defendents,</center>

This cause, heard, by consent of parties, the 25th day of may, in the third year of the nineteenth centurie of the christian aera, on the bill, answers, exhibits, and examinations of witnesses, was discussed by the court, after attending to councils arguments, in the terms following:<div align="right">A</div>
</blockquote>
===Page 16===
<blockquote>
A rented farm is ingulphed in the chasm of an earth-quake, or is overwhelmed by the lava, boiling over the brim, and running down the sides, of a burning mountains crater, during an eruption,

______''Quoties Cyclopum effervere in agros Vidimus undantem ruptis fornacibus Ætnam Flammarum que globos liquefactaque volvere saxa;''

A rented house is consumed by fulgurant or hostile fire, or is submerged and depressed in a deluge, or is swept off its site by a torrent, a * typhon, a prester, or a hurricane, or subverted or dilapidated by a landslip, a snowslip, or as in this instance, by an ice-slip;

Eversion of some houses, adjacent to another already burning is necessarie to prevent wide devastation, otherwise, inevitable, the fire, ''vulcano superante'', baffling all attempts to extinguish it or interrupt its progress; the flame is now, ''furentibus Austris'', in a high wind, communicated, to the contiguous aedifices,

''______________jam proximus ardet Ucalegon:''

the houses nearest are prostrated and destroied accordinglie; one of these victims, thus devoted for salvation of those in danger of being involved in the combustion, is a leased tenement, for which a rent is paible;

If any such a case as hath been described, and one of them the principal case appeareth<div align="right">to</div>
----
----
<div style="font-size: 85%;">* Plinii, tom' I. lib' II, cap. XLVIII. Lucretii lib.' VI. V. 424.</div>
</blockquote>
===Page 17===
<blockquote>
to be, arbitrators condemning the tenent to pay rent with which he was supposed to have charged himself by covenant in general terms, although, without his fault, he was deprived of the ''quid pro quo'', the thing for use of which he should be charged, decide unrighteously, contrary to principles of equitie never doubted.

Human providence, so hebete and limited are our faculties! is inadequate to prevention of numberless contingent evils, cannot guard against them. Happy therefore was institution of a ''curia prætoria'', court of equity, by the benignitie whereof, in opposition to that ''summum jus'', which in the ''curia censoria'' the common law court often times is ''injuria summa'', parties in contracts, as well as in other examples, are freed from detrimentose effects, avoidance of which, if they had been foreboded, would have been stipulated.

If this controversie had been laid, in the first instance, before a court of equitie, the judge herhaps might have propounded these questions: first, was such a disaster expected rationaly to happen? second, would not the parties, if they had thought such an event, and believed it probable, have consented, that, until the mill should be rebuilt, or the matter adjusted some other way, rent should not be paid? and have accordinglie stipulated?

No man who doth fancie that a prodigie will terrifie the citizens residing near James river everie seven years, will answer the form-<div align="right">er</div>
</blockquote>
===Page 18 ===
<blockquote>
er question affirmativelie; nor will any man, who doth not suppose the parties to have been one a knave and the other a fool, give a negative answer to the latter question.

The court of equitie, then, if before it the case had been brought originalie, would undoubtedlie, yes undoubtedlie, have relieved David Ross from his obligation, if indeed he, by his agreement, legalie were obliged, to pay rent during vacation of the subject, out of which the law itself supposeth that rent, ''reditus'', to grow, to return as it were, and which is the fund charged with paiment of the rent; would have placed the parties in the situation where the precepts of natural justice incontestablie direct them to be placed, and where the parties (probablie! yea certainlie, because otherwise no man will believe the tenement would have assumed in everie event the burthen,) would have consented to be placed, if they had supposed that a flood driving before it everie thing in the direction of its current would happen.

A decree, congruous with these sentiments is pure equitie, would leave those, who had the dominion of a mill, and him, who had a temporarie right to what emolument could be produced from it, would leave a landlord and landlady sustaining the loss of a machine their propertie, destroied by misfortune unforeseen and ineluctable, and would leave an ddeclare a blameless usufructuarie discharged from paiment of rent, when he could no longer enjoy<div align="right">that</div>
</blockquote>
===Page 19===
<blockquote>
that, for which the rent was an ______ that for which the rent was a retribution.

A like decree would be justifiable, if a mesuage, invaded by pestilence, should become deleterious.

Again, the contract between the parties was imperfect, was an epitome, compendium, designed to be drawn more particularlie, more explicitelie.

If, before the fatal night, one of them, instituting a prosecution against the other, had demanded performance of this article which is contained in the subjoined clause, and Richard Overton and Elizabeth Overton had insisted, that David Ross in all events should bind himself to deliver a mill, at expiration of the term, and pay rent for it, in the mean time, and David Ross had relied upon the exemption now clamed by him, alleging that at least he was not bound either to rebuild the mill, or, before the lessor should have built it, to pay rent for it, after intire demolition of it by lightning, a * turbo, or other tempest, or an inundation, could any judge, who should have decided this difference in favour of Richard Overton and Elizabeth Overton, have correct notions of justice, equitie, law? By this interrogatorie the querist intendeth a vehement negation.

If a court of equitie, to which one partie had in the first instance applied, would have<div align="declared">that</div>
<div style="font-size: 85%;">* Plinii, tom' I, lib' II, cap' XLVIII. Taciti annal' lib' XVI, c. 13.</div>
</blockquote>
===Page 20===
<blockquote>
declared David Ross not chargeable with rent, even if for paiment thereof his contract, understood in a sense most rigorous, had imported a legal obligation, we are taught, by supreme judical authoritie (in the cases of [[Beverley v. Rennolds|Beverley against Reynolds]], and of [[Dawson v. Winslow|Dawson against Winslow]] that awards contravening principles of equitie, no less than principles of law, may be rescinded.

The arbitral sentence was contrarie to law too.

The contract between Richard Morris, on behalf of the owners of the mill, and David Ross ws what is called synallagmatic, that is reciprocal. ''Labeo definit contractum autem ultro citroque obligationem quod graeci _______ vocant: veluti emptinonem, venditionem, locationem, conductionem, societatem, Digest,' lib' L' tit' xvi. l' xix. that is, the contract was on both sides obligatorie. Richard Overton and Elizabeth Overton owners of a mill THEN, theretofore, erected were obliged to permit David Ross to work it, for his own benefit, during seven years, and he was obligated, to pay rent, and, at expiration of that term, to deliver THE SAID MILL IN TENENTABLE REPAIR.

These obligations and the rights correspondent were altern, were causes and effects each of other.

David Ross, so long as he could work the mill ERECTED THEN, mill which had been ERECTED BEFORE, was for that<div align="declared">cause,</div>
</blockquote>

===Page 21===
<blockquote>
cause, obliged to pay, and Richard Overton and Elizabeth Overton had a right to demand the effect of that cause, rent; and Richard Overton and Elizabeth Overton so long as David Ross paid rent, were obliged for the cause, to permit him to work, and he had a right to work, the mill, and they had a right to the rent, the effects of those causes. The rights and obligations of the parities were synchronous, were equal in duration: whilst the mill remained, and could be worked, the lessors had a right to rent; but when the mill had vanished, when a divulsion, a dislocation, a dissipation, of its parts were such that a reunion of those parts, if they could have been found, was impracticable; when the mill existed not otherwise than in fragments, partlie floating on the surface and partlie sunk to the bottom of the James, Chesapeake, or Atlantic, the right to rent ceased.

David Ross by his agreement, obliged himself to pay rents for a mill THEN erected, a mill which might require repairs, during the term, not for a mill TO BE erected; obliged himself to deliver the SAID mill, that is the mill THEN erected, in tenentable REPAIR, not to deliver a NEW mill which might not require repairs during the term, in place of the OLD, if it should be totalie dilacerated.

And that an arbitral sentence, of which the authros appear to have misconceived the law,<div align="declared">may</div>
</blockquote>
===Page 22===
<blockquote>
may by this court be abrogated, is supposed to have been admitted universalie.

Finalie, the sentence, pronounced ''partibus absentibus'' when the hparties were absent, ''imo partibus inauditis'' when the hparties were not heard, was for that reason a nullitie, surelie no proof is required of that.

The court therefore doth adjudge and decree, that the injunction, &c.' be perpetual, as it is hereby prounounced to be perpetual; and that the defendents Richard Overton, Elizabeth Overton and Samuel Overton reimburse to the plaintiff the costs expended by him in prosecuting this suit.
</blockquote>
==References==
<references/>

[[Category:Cases]]

Overton v. Ross

2015-02-24T15:19:15Z

Cjhunter:

{{DISPLAYTITLE:''Case of Overtons Mill''}}
[[File:WytheCaseOfOvertonsMill1803.jpg|thumb|right|300px|First page of ''The Case of Overtons Mill: Prolegomena, in the Richmond Common-Law District Court, Elizabeth Overton and Richard Overton, Plaintiffs, Against David Ross, Defendent'' by George Wythe (Richmond, 1803?). Image from a copy at the Library of Virginia.]]
''The Case of Overtons Mill'' (1803)<ref>George Wythe, ''The Case of Overton's Mill'' (Richmond, 1803?).</ref> discussed whether the renter of a mill was liable for the repairs to a mill that was destroyed due to circumstances beyond the renter's control. Wythe heard this case as the chancellor for the Superior Court of Chancery of the Richmond District, one of the three Chancery Court Districts that were created after the Virginia Assembly dissolved the High Court of Chancery in 1802.
==Background==
David Ross leased land and the mill on it for seven years from Richard Morris, who was acting as an agent for Richard and Elizabeth Overton. The lease said that Ross would be responsible for the construction of certain buildings, making improvements, paying taxes, and restoring the mill "in tenentable repair" by the end of the lease term.

In January 1784, an unexpected ice movement beyond Ross's control destroyed the mill. Ross believed he was not obligated under the lease to rebuild the mill or continue paying rent, but the Overtons disagreed. The Overtons and Ross brought the case to arbitrators. In 1784, the arbitrators issued a decision stating that Ross was obligated to continue paying rent and to "perform the other covenants contained in the said lease".

The Overtons later filed suit in the common-law side of Richmond District Court, claiming that Ross failed to uphold his responsibilities under the lease, and that he therefore owed the Overtons £6000. Ross stated that he had upheld all his duties under the lease, and that nowhere in the arbitrators' decision was there mention of a possibility of £6000 in damages. The court awarded the Overtons £3500 in damages plus court costs, and Ross appealed the decision to the Virginia Supreme Court of Appeals.

==The Supreme Court of Virginia's Decision (1802)==
The Supreme Court affirmed the District Court's decision and awarded costs to the Overtons.<ref>''Ross v. Overton'', 7 Va. (3 Call) 309 (1802).</ref>

Ross's first objection to the District Court's decision was that the date the Overtons claimed the contract was signed in their complaint was different than the date given in the arbitrators' decision. The arbitrators said that the contract was signed on May 22, 1784. In their complaint, the Overtons said that they signed the contract on ___ 25, 1784 (they left out the month). Ross argued that this discrepancy between dates voided the agreement. The Supreme Court said that because the parties agreed on all other points, in a situation where the plaintiff gave no date or an impossible date for the contract signing in the complaint, the plaintiff can plead that the contract was signed on any day that the plaintiff can prove the contract was delivered. Because the arbitrators must have had a copy of the contract signed May 22, 1784, the Overtons could use that as the alleged date the contract was signed.

Ross's second objection was that the arbitrators made a mistake in interpreting the law when they required Ross to continue paying the rent and performing other duties under the rental contract, even after the mill was destroyed by an event beyond Ross's control. While a court normally should not overturn an arbitrator's decision, it can do so in situations in which the arbitrator made an error of law. The Supreme Court said that this question of law was a doubtful one that required substantial argument on both sides to determine the answer. Courts will not overturn an arbitrator's decision just because the arbitrator erred in interpreting a legal question that a reasonable person thinks could go either way. Ross also argued that the covenant of quiet enjoyment meant that the Overtons insured the property against all accidents, but the Court said that the covenant only protected against legal claims, not a "separation of continuity" such as robbery or loss of property through destruction.
==Wythe's Discussion of the Supreme Court Decision==
Wythe dissected the Supreme Court's decision, bit by bit.

Wythe said that the Supreme Court was dodging the issue of the discrepancy between the date the Overtons alleged the contract was signed and the date given in the arbitrators' decision. Contrary to the Supreme Court's contention, "the 25th of 1784" is just as much a date as "May 25th, 1784". The [https://en.wikipedia.org/wiki/Areopagus Aeropagus] would have considered "the first date of X Olympiad" a date, even if the month or day of the month were omitted. No philosopher, whether Aristotle, [https://en.wikipedia.org/wiki/Petrus_Ramus Ramus], [https://en.wikipedia.org/wiki/John_Milton Milton], or [https://en.wikipedia.org/wiki/William_Duncan_%28philosopher%29 Duncan], would instruct their students to make such a large assumption as to say that the Overton's allegations had "no date". Wythe also cited to John Locke's [[Works of John Locke|''Essay on Human Understanding'']<ref>John Locke, ''Essay on Human Understanding'', Book 3, Ch. 6.</ref> for further support. At any rate, the Overtons said that the contract was signed on the 25th, which cannot magically become the 22nd (the date cited in the arbitrators' decision) no matter how hard they try.

Wythe said that the question of whether the Overtons guaranteed Ross against all forms of loss was the wrong one; the proper question was whether Ross should still be liable for rent after the destruction of the mill, which Wythe compared to a scene described in [[Odyssey of Homer|Homer's ''Odyssey'']].<ref>''"Ὄσσαν ἐπ᾽ Οὐλύμπῳ μέμασαν θέμεν, αὐτὰρ ἐπ᾽ Ὄσσῃ Πήλιον εἰνοσίφυλλον"''. "To heave upon Olympus Ossa strove,/On Ossa, Pelion's vacillating grove". Wythe, ''The Case of Overton's Mill'', 9, citing Homer, ''Odyssey'': Book 11, ln. 315-16. This refers to Otus and Ephialtes, the [http://en.wikipedia.org/wiki/Aloadae Aloadae]. The Aloadae were giants who were sons of [http://en.wikipedia.org/wiki/Iphimedeia Iphimedeia] and Poseidon. The Aloadae sought to storm heaven by piling Mount Ossa on Mount Olympus, then Mount Pelion on top of Mount Ossa.</ref>

Wythe said that there were plenty of previous decisions in which courts had said they could properly assume appellate jurisdiction over arbitrators' decisions, regardless of whether the arbitrators had made a mistake of fact or law. The doubtfulness of the law and the facts make this case an especially strong candidate for a new trial or appellate hearing, rather than removing it from a court's jurisdiction. If a court in equity, such as the Chancery Court, were to follow English common-law precedents to determine when it could award a new trial, then Wythe opined that it would find itself as badly misled as Demea was by his servant Syrus in [[Publii Terentii Afri Comoediae Sex|Terence's comedy ''The Brothers'']]<ref>Terence, ''Adelphoe (The Brothers)'', Act 4, Scene 2.</ref> and equally worthy of derision for its gullibility. Wythe added (for emphasis, perhaps?) that this is a situation in which it would be better if English caselaw precedent had simply been consumed by the [https://en.wikipedia.org/wiki/Lethe Lethe] (one of the rivers flowing through Hades that inflicted forgetfulness on anyone who drank from its waters), much as Overtons Mill was overtaken by the James River.

Wythe wondered aloud what might have resulted had Ross employed more attorneys at the Supreme Court; perhaps, Wythe pondered, the Supreme Court might have decided that a landlord was responsible for insuring rental property.

Wythe also criticized the Supreme Court opinion for inconsistency, saying that "(t)he question or case, as it is some times called, is in four places SUPPOSED to be doubtful, in a fifth place is EVINCED, i'e,' proved, to be doubtful, in (a) sixth place, as appeareth by the words, 'it is our opinion, that the arbitrators did not mistake the law,' is EVINCED, proved, NOT to be doubtful."<ref>Wythe, ''Case of Overtons Mill'', 13.</ref> To Wythe, the legal question's doubtfulness in the Supreme Court opinion seemed to appear and reappear as easily as [http://en.wikipedia.org/wiki/Gyges_of_Lydia Gyges of Lydia] as described in [http://lawlibrary.wm.edu/wythepedia/index.php/Platonis_Philosophi_Quae_Extant_Graece|Plato's ''Republic''].<ref>Plato, ''Republic'' 2. According to Plato's story, Gyges was a shepherd who discovered a magic ring that allowed him to become visible or invisible depending on the direction he turned its bezel.</ref>

Wythe mulls over what is truly equitable in a situation in which the legal rule is in doubt. If an even number of judges are assumed to fall on both sides of the argument, then a defendant should be acquitted.<ref>Wythe uses the Latin phrase ''sententiis paribus reus absolvitur''. Wythe, ''Case of Overtons Mill'', 14.</ref> Wythe notes that "the voice of wisdom, Minerva<ref>Here, Wythe refers to the Roman goddess Minerva instead of the Greek goddess Athena, even though he is citing a play written by a Greek poet. This may have been normal for a scholar of his time who was trained in the classics. Until modern times, normal practice for English translators was to use the Latin equivalent of ancient Greek names, since that is what they were used to from reading Virgil and Ovid in school. Homer, Robert Fagles (trans.), "The Spelling and Pronunciation of Homeric Names", in ''The Iliad'' (New York: Penguin Books, 1991), 65.</ref> herself" says in Aeschylus's [[Hai tou Aischylou Trageodiai Seozomenai Hepta|play ''The Eumenides'']], that "the law absolve the matricider/For equal votes the court divide."<ref>''The Eumenides'' is the concluding play in Aeschylus's [http://en.wikipedia.org/wiki/Oresteia ''Oresteia'' trilogy], which details the breaking of the curse on the [http://en.wikipedia.org/wiki/House_of_Atreus House of Atreus]. In ''The Libation Bearers'', the second play of the trilogy, Orestes (spurred on by his sister Electra and the god Apollo) kills his mother Clytemnestra, to avenge the death of his father (and Clytemnestra's husband) Agamemnon. In ''The Eumenides'', the Furies (spirits who avenge patricide) seek to execute Orestes for his deed. Athena (whom the Romans equated to their goddess Minerva) steps in and forms a jury of twelve people to judge Orestes's guilt, stating that a tie would result in acquittal. The jury splits evenly, and Athena convinces the Furies to accept Orestes's acquittal.</ref> One of [[Works of Francis Bacon|Francis Bacon's maxims]] states that when rules of law cross each other, the worthier principle should be upheld.<ref>Francis Bacon, "Verba fortius accipiuntur cont a proferentem", ''The Works of Francis Bacon: Law Tracts. Maxims of the Law''.</ref>

==The Chancery Court's Decision==
After the Virginia Supreme Court upheld the common-law Richmond District Court's decision, Ross filed a bill in equity with the Richmond District Superior Court of Chancery,<ref>In 1802, the Virginia Assembly split the High Court of Chancery into three Superior Courts of Chancery, each court assigned to a geographic district, to decrease the equity courts' backlog. Thomas Jefferson Headlee, Jr., ''The Virginia State Court System, 1776- '' (Richmond, VA: Virginia State Library, 1969): 13. Wythe became the chancellor for the Richmond District.</ref> which heard the case on May 25, 1803. Wythe granted Ross a permanent injunction against the Richmond common-law District Court's decision and awarded Ross court costs for the Chancery Court stage.

Wythe begins the text of his opinion by describing the many ways beyond a renter's control that a leased building can be destroyed. Wythe quotes the description in [[Works of Virgil, Containing His Pastorals, Georgics and Æneis|Virgil's ''Georgic'']] of Mount Etna erupting,<ref>''"______Quoties Cyclopum effervere in agros Vidimus undantem ruptis fornacibus Ætnam Flammarum que globos liquefactaque volvere saxa;"'' Virgil, ''Georgic'', Lib. I, ln. 471-73.</ref> the sacking of Troy as described in [[Works of Virgil, Containing His Pastorals, Georgics and Æneis|Virgil's ''Aeneid'']],<ref>''"______________jam proximus ardet Ucalegon"''. Virgil, ''Aeneid'', 2.311. In this line, Aeneas notes that he is next to [http://en.wikipedia.org/wiki/Ucalegon Trojan elder Ucalegon's] house, which was burned by the Achaeans when they sacked Troy.</ref> and Pliny the Elder's description of the nature of wind in his [[C. Plinii Secundi Naturalis Historiæ|''Natural History'']].<ref>Pliny the Elder, ''C. Plinii Secundi Naturalis Historiæ'', Tom. I, Lib. II, Cap. XLVIII. Pliny the Elder died while investigating Mount Vesuvius's eruption; perhaps Wythe had this in the back of his mind when he included these cites in his litany of natural disasters?</ref> Wythe also cites Titus Lucretius Carus's description of meterological phenomena in his book [[De Rerum Natura|''On the Nature of Things'']]<ref>Titus Lucretius Carus, ''De Rerum Natura'', 6.424.</ref> and Tacitus's description in his [[C. Cornelii Taciti Opera, Quae Exstant|''Annals'']] of a whirlwind that destroyed Campania.<ref>Cornelius Tacitus, ''Annals'', 16.13.</ref>

Wythe says that Ross's situation is similar to those described in the ancient works. In such a situation, where a tenant lost their property through no fault of their own, no judge could find it equitable to force the tenant to continue to pay rent. This is one of those situations a court of equity was designed for, a situation in which equity can properly mitigate the harsh results the common law would dictate. A judge in equity investigating Ross's situation should ask whether such a disaster was rationally expected; and if so, whether the parties agreed that the tenant should continue paying rent until the mill was rebuilt.

Wythe said that the arbitrators' decision did not follow the law. He cited [[Corpus Juris Civilis|Justinian's ''Digest'']] for the idea that a contract is a reciprocal obligation.<ref>Justinian Dig. 50.16.19.</ref> While the mill remained operational, the Overtons had a right to demand work and rent from Ross. Ross, in turn, had the right to work the mill. Once the mill disappeared, Ross's obligation to pay rent or to work on the mill ceased.
==Supreme Court of Virginia's Decision (1808)==
Morris and the Overtons appealed Wythe's decision to the Virginia Supreme Court of Appeals, which reversed Wythe's decree.<ref>''Morris v. Ross'', 12 Va. (2 Hen. & M.) 408 (1808).</ref>

Supreme Court judge (and former Wythe student) [[St. George Tucker]] joined judges [https://en.wikipedia.org/wiki/Spencer_Roane Spencer Roane] and [https://en.wikipedia.org/wiki/William_Fleming_%28judge%29 William Fleming] in stating that a court of equity should not grant relief in a case in which a court of law has already decided on the same points of controversy. Judge Fleming expressed sympathy for Ross's position and said that he might have ruled differently had he been one of the arbitrators, but that Ross was still bound by the arbitrators' decision.

==Transcribed text of the opinion: The Case of Overtons Mill==
===Page 1===
<blockquote>
PROLEGOMENA

In the Richmond common-law district court, Elizabeth Overton and Richard Overton, ''plaintiffs'', against David Ross, ''defendent''.

THE plaintiffs demanded 6000 pounds, complaining and declaring that the defendent, who had, on the 25th day of       in the year 1784, by a sealed writing obligatorie, to the court shewn, the date whereof is the same day and year, acknowledged himself to be indebted to the plaintiffs the said 6000 pounds, yet refused to pay the money to them, wherefore they sued.

The writing obligatorie, in an assignment of the breach of its condition, is said to have been executed on the       day of      , in the year 1784.

It was, by the condition, to be void, if David Ross should perform the award of three persons, mutualy chosen to determine a controversie between the parties relative to a lease or agreement.

The agreement, signed and sealed by David Ross only, purported, that Richard Morris, on behalf of Richard Overton and Elizabeth Overton, leased to David Ross a parcel of land, with a grist-mill then erected thereon,<div align="right">a</div>
</blockquote>
===Page 2===
<blockquote>
a fisherie, and other advantages, to be holden and enjoied by him, free from all interruption and molestation whatsoever, for seven years from August, 1783; and the David Ross engaged to build certain aedifices, and make other improvements, pay taxes, restore the said mill, in tenentable repair, with the improvements, at expiration of the term, and during the continuance thereof, pay rents. Subjoined are these words: 'a more particular agreement, or lease in due form, shall be executed, at any time either of the parties shall require; this agreement being taken for the basis of it. David Ross.'

The arbitrators, after reciting their authoritie, i'e', the writing obligatorie, on which the action is supposed to have been brought, and which in the award, but no where else, is alleged to be dated the 22d day of May, 1784, say, "they met, and considered the lease or agreement aforesaid,' the substance whereof they repeat, adding, 'it appears by the admission of each partie, that in januarie, 1784, by an extraordinarie and unexpected movement of the ice, the mill-house was intirelie demolished, and the said Ross had it not in his power to prevent the same. In persuance of the submission aforesaid, we do award and determine that the said David Ross shall pay the rents reserved in the said lease or agreement, notwithstanding the accident aforesaid, and that the said David Ross shall complie with and perform the other covenants contained in the said lease.'<div align="right">The</div>
</blockquote>
===Page 3===
<blockquote>
The defendent pleaded that he had performed the condition of the writing obligatorie in the declaration mentioned, and that there was no such award as is mentioned by the plaintiffs in their breaches assigned.

The plaintiffs replied generaly. Issues were joined; and the jurie found a verdict for the plaintiffs, assessing 3500 pounds damages, for which, with costs, judgement was rendered.

The defendent appealed.

Opinion of the court of appeals in affirmance of the district courts judgement, with quaries and remarks. Paragraphs of the opinion are in italic characters.

<center>In the court of appeals,</center>
Between David Ross, appellant, and Elizabeth Overton and Richard Overton, appellees,

''In this cause, two objections have been made to the judgement of the district court: first, that there is a variance between the award and the bond of submission stated in the declaration, the former refering to a bond dated the 22d of May, 1784, and the declaration stating the bond in suit to be dated the 25th of       1784. In supporting this objection the counsil principaly relied on the case of'' Turner v' Moffet ''in this court, reported in '' 2 Wash' 71. ''But that case does not apply; since the variance was apparent on the record, against which no averment is admissible: and''<div align="right">Was</div>
</blockquote>
===Page 4===
<blockquote>
Was not the variance in the principal case, if a variance be there, apparent on the record? The obligation and award are both exhibited in court, and entered in the book registering allegations of the parties litigant and acts of the court, that is, were recorded; and is not the variance, between the bond and award which is shewn by comparison of one with the other of them, as apparent on the record here as the variance between the submission and award in the case cited?

''It was truly observed by the attorney general, that that case was distinguishable from the present, which, being a bond for the submission, was a matter'' en pais, '' and the supposed variance might be corrected by averment. The declaration states, that the defendent, on the 25th day of       1784, by obligation, the date whereof is the same day and year, bound himself to the plaintiffs. In the breaches assigned, annexed to the declaration, after reciting the lease to the defendent, and its essential covenants, on his part, that differences had arisen, which they had mutually agreed to refer to arbitration, the plaintiffs aver, that they entered into bond, similar to that entered into by the defendent, to abide by the award, and that the defendent, on the same day, to with, the       day of       1784, executed the bond in the declaration mentioned. It is obvious, from the award, that the arbitrators had before them not Rosses bond but, that entered into by the plaintiffs, which, they say, is dated the 22d of May, 1784.''<div align="right">If</div>
</blockquote>
===Page 5===
<blockquote>
If the variance were only 'supposed,' were an ''hypothesis'', that is, if no variance were, an averment to 'correct' it was superfluous, the date of the bond was correct, without averment. If between the 25th day of       1784, and the 22d day of May, 1784, a variance be, what will authorize averment, that those days were the same? An evasion of this question may be, but a categoric answer to it is not, expected: evasion, as hereafter appeareth, thus: 'the bond hath no date;' and 'we consider the date of the bond,' 25th of       in the year 1784, 'and the blank date of averment,'      day of       in the year 1784, 'to be no date.'

''Without going over the several cases cited, the rate laid down in'' I ''lord Raym' 335 seems to have run thro' them all, that is, that if a bond hath either none or an impossible dated, the plaintiff may aver an day which he can prove the bond to have been delivered.''

No man ought to have controverted the rectitude of this rule, if lord Raymond had not laid it down. But every man is not convinced that the rule is proved to APPLY to this case by such argumentation as

''The present case is that of no date to the bond''.

Did Aristotle, Ramus, Milton, Duncand, &c. in their dialectic institutions, teach their disciples that in a syllogism the minor proposition, as is done here by these words, 'the present case is that of no date to the bond,' may be taken for granted?<div align="right">''For''</div>
</blockquote>
===Page 6===
<blockquote>
''For the counsils curious criticism, refering the'' 25 ''day of something to that day of the year was calculated only to occasion the mirth it produced. We consider that, as well as the blank date averment, to be no date, and of course, there is no variance between that and the true date mentioned in the award.''

Passing over some 'curious' phrases occuring in the paragraph immediatelie preceding, and the conclusion, as 'curious' as any of them, namelie, 'of course there is no variance between that,' the 25 day of       in the year 1784, 'and the blank date averment,' the       day of       1784, 'there is no variance between these "and the true date mentioned in the award,' that is, there is no variance between the date of a bond 'of no date,' or a bond of a date which 'we consider to be no date, and the date of a bond which hath a true date; passing over this phraseologie perplexed, inexplicable, inconsistent, we ask,

Can the bond, which Richard Overton and Elizabeth Overton recite in their declaration, and whereof the date is there alleged to be the same day and year, i'e,' the 25 day of       in the year 1784, be trulie said to bear no date? Is not a year, distinguished by the number of isochronous revolutions computed from a known epoch, a date no less trulie, tho' less preciselie, than a month, or a particular day of any month specially named, in that year? An olympiad was a quaternion or period of four years used antiently by the greeks for sup-<div align="right">putations</div>
</blockquote>
===Page 7===
<blockquote>
putations of time: would Areopagus have 'considered a bond,' the date whereof was in the first, second, third or fourth, year of some one olympiad, to be a bond 'of no date,' because the name of hecatombaeon, or of scirrophorion, or of some one of the ten intervening months, or the day of the month was omited? The roman aera was the building of the citie; would the ''praetor'' have 'considered a bond,' the date whereof was in a certain year of the citie build, to be a bond 'of not date?' Europeans and british americans observe, for the same purpose, Jesus Christs nativitie; if lord Raymond in Westminsterhall had said 'he considered' a bond the date whereof is the 25 day of       in the year 1784, to be 'of no date,' it probalie would have 'occasioned' there no less mirth, than a counsils 'criticism' produced in the capitol, when some reasons for affirming the district courts judgement were attempted to be explained; and when that affirmance was proclaimed, might not one of the auditorie have asked ''risum taneatis amici?''*

In truth no date could have been avered, but the 25 day of some month between december, 1783, and june of the succeeding year, for on the 15th day of that month the arbitrators power expired.<div align="right">The</div>
----
----
<div style="font-size: 85%;">* Perhaps the foregoing concionation, by this time, has disposed the auditors to oscitation rather than cachinnation; they might be too drowsie to laugh.</div>
</blockquote>
===Page 8===
<blockquote>
The year was certain, 1784. The day of some month was certain, the 25th. And although the plaintiffs could have supplied the blank left for the month with May, they could not aver the 25th to have been the 22d day.

Again, if in this case Richard Overton and Elizabeth Overton could have avered the bond to have been dated any day on which they could have proved the bond to have been delivered, we ask, where in the declaration, or in the assignment of breaches, doth an averment, that the bond was dated the 22d day of May, 1784, appear? is an allegation to that purpose in the award, which is an act of the arbitrators, an averment of the plaintiffs Richard Overton and Elizabeth Overton!

''In every other thing, in parties, in controversie, and arbitrators, they agree. And on this point there is no error in the judgement of the district court.''

To this conclusion they who can admit the truth of its premisses, will subscribe.

''On the second point, it was argued by mr. Wickham, that under the covenant for quiet enjoiment the Overtons were the insurers of the propertie against all accidents. But surelie that covenant, which does not* differ essentialie from others of the like kind, only obliges the lessor to defend the enjoiment of the lessor to defend enjoiment of the lessee against legal clames, and not against a separa-''<div align="right">''tion''</div>
----
----
<div style="font-size: 85%;">* DIFFER ESSENTIALIE from others of the LIKE KIND! are differences between individuals of like kinds, like species, called ESSENTIAL? See Lockes essay on human understanding, book III, chap. VI.</div>
</blockquote>
===Page 9===
<blockquote>
''tion of continuitie from robbers, thieves, trespassers, or the ice.''

Mr. Wickhams argument; if it be vicious, seems an ''ignoratio clenchi'', mistake of the question. Let the question, whether Richard Overton and Elizabeth Overton, or their friend Richard Morris, under the covenant for quiet enjoiment, were insurers of the propertie against all accidents, or were obliged to defend the enjoiment, against only legal clames? let that question not be proper: this question, whether, without a special covenant, they remained insurers of their own propertie, that is; were obliged, when it was demised to a tenant paying rent for enjoiment of it, to sustain the loss of that propertie irreparable, so that it could be enjoied no longer, prostrated and crushed by islands of ice, piled one upon another, resembling a mountain, and exhibiting a spectacle no less tremendous than when Ephialtes and Otus,
<blockquote>Ὄσσαν ἐπ᾽ Οὐλύμπῳ μέμασαν θέμεν, αὐτὰρ ἐπ᾽ Ὄσσῃ<br />
Πήλιον εἰνοσίφυλλον<ref>Homer, ''Odýsseia'', XI, 315-316.</ref><br />

To heave upon Olympus Ossa strove,<br />
On Ossa, Pelion's* vacillating grove?</blockquote>

or rather, whether David Rosses obligation to pay rent for a mill THEN ERECTED, THEN BEING, continued after the SAID mill was DISJECTED, CEASED TO BE? this is a proper question.<div align="right">''This''</div>
----
----
<div style="font-size: 85%;">* Vacilians arbor Lucret'lib'v, v' 1097.</div>
</blockquote>
===Page 10===
<blockquote>
''This second objection is, that where it is apparent in the award that the arbitrators decided upon principles, in which they were mistaken, either in law or fact, the court will set aside the award, and they were so, in the present case, since it being stated, that the millhouse was intirelie demolished by an extraordinarie and unexpected movement of the ice, which Ross had it not in his power to prevent, they mistook the law, when they awarded Ross to pay the rent and perform his other covenants in the lease, notwithstanding the accident. For the sake of precedent, the court, first, considered how far they ought to interfere with awards, upon this ground, and are of opinion, that they ought not to consider themselves as an appellate court from the judgement of the arbitrators, and reverse it, merelie because we differ from them on a doubtful question;''

That courts of civil institution ordinarilie have not appellate jurisdiction over sentences of arbitrators, unless those compromissorie judges mistake a fact, or the law, would not have been disputed if no precedents, of which manie however, earlier than this, are extant, had approved the doctrine.

''But ought to place ourselves in the place of a court applied to, to grant a new trial, because the verdict is contrarie to evidence, which ought to be granted only in case of a plane deviation, and not in a doubtful one, merelie because the court, if on the jurie, would have given a different verdict; since that would be to<div align="right">''assume''</div>
</blockquote>
===Page 11===
<blockquote>
''assume the province of the jurie, whom the law hath appointed the triers.''

What is meant by 'case of a plane deviation?' a deviation, a departure, from what? from the truth of facts planelie proven, or from the rule planelie praescribed by law? are new trials never granted in even 'doubtful cases?' when a court and a jurie disagree, may we not call that a doubtful case? are not new trials some times granted for the very reason that the cases are 'doubtful,' that is, difficult? yea, have not new trials been granted, and even decrees pronounced, in direct opposition to verdicts certified by the courts, before which they were found, to have been 'against the weight of evidence?' with this preceent have the precedents in the cases of [[Southall v. M'Keand|Southall against Mackeand]] and [[Woods v. Macrae|Woods against Macrae]], ''cum multis aliis'', perfect symphonie?

The judge of an equitie court, who by this precedent, is refered to the practice of common law courts, in awarding new trials, to learn in what cases he will be justified in abrogating awards, if he shall, for that purpose, consult those oracles, will probablie be delaied, distracted, misled, disappointed, as in ''Terentii Adelphi, act' 4, scen' 2'', old Demea was by the directions of his servant Syrus, and, in like manner, be derided for this simple credulitie.

''This rational distinction, between plane and doubtful cases, is observed in the books, which''<div align="right">''justifie''</div>
</blockquote>

===Page 12===
<blockquote>
''justifie the court in setting aside awards for mistaken principles.''

Is this period reducible into any one simple proposition from which any conclusion can be drawn?

''That this was, at least a doubtful question is evinced, not only by the number of counsil emploied to discuss it, ''

Did not this 'curious criticism produce the 'mirth it was well calculated to occasion?'

''But from the english'' [sic] ''decisions on the subject;''

Will not every reader of the line next above and its context lament, that english decisions, if they were allowed, and shall be yet allowed, to sanctifie such a sentence as was supposed to have been authorized by them, in this case, had not been ingurgitated in the Lethe, no less irrecoverable than Overtons mill was in the James?

''And on this ground* we think the district court did not err on this second part;''

Were the counsil emploied to discuss the question equalie numerous on both sides? If they had been fewer and equal in number, who knows that the question, whether, in case of such a catastrophe, the tenent was insurer of his landlords propertie? was, not doubtful but on the contrarie, clear in favour of the former? The tenent may have been unluckie that he did not, on his side, trie the experiment: he might perhaps have been more for-<div align="right">tunate,</div>
----
----
<div style="font-size: 85%;">* Doubtfulness of the question evinced partlie by the number of counsil emploied to discuss it.</div>
</blockquote>
===Page 13===
<blockquote>
tunate, if he had not trusted to the proverb, 'in the multitude of counsillors there is safetie?'

''At the same time, observing, that, stating it as a doubtful case, cannot be complained of by the appellant, since,''

The appellant doth complain, addressing a prayer for redress of his grievance to another tribunal, before which one subject of diceptation is this question: when the court of common law hath burthened a tenent with the loss of his landlords rented propertie, which the tenent had not insured, which OMNIPOTENCE destroied, and which human providence, vigilance, and energie could not have preserved, whether a court of equitie be not bound to exonerate the tenent?

''On the whole, it is our present opinion that the arbitrators did not mistake the law.''

The question or case, as it is some times called, is in four places SUPPOSED to be doubtful, in a fifth place is EVINCED, i'e,' proved, to be doubtful, in this sixth place, as appeareth by the words, 'it is our opinion, that the arbitrators did not mistake the law,' is EVINCED, proved, NOT to be doubtful. The vicissitudes of ambiguitie and certantie in the question or case seem to have been as quick, and as easilie produced, as those of the visibilitie and evanescence of Gyges the Lydian, who as Plato, ''de republ,' lib II, p''' 369, related, could effect these miracles, could appear and disappear when he pleased, by<div align="right">means</div>
</blockquote>
===Page 14===
<blockquote>
means of a ring, one, by turning the beazle of it towards himself, and the other, by an opposite exposure.

If the law be so, that, after a rented subject had been, by a tempest, reduced to atoms, if not annihilated, the tenent must pay the rent, notwithstanding, will the professors of law class it among liberal sciences, or this part of it at least with the reliques of dynastic, lordlie, feodal barbarism?

But perhaps the question may yet be doubtful. It seems possible from the words OUR PRESENT OPINION: if the question be doubtful, and to each side of it we suppose the same number of judges to incline, the voice of wisdom, Minerva herself, is ''sententiis paribus reus absolvitur'', the doom of equal suffrages is acquital,
<blockquote>

The laws absolve the * matricider<br />
For equal votes the court divide.</blockquote>

When competent judges of law declare a legal question to be doubtful, doth not the law seem at variance with itself? and then what umpire can be, with so much proprietie called to decide the question as aequitie? is not this, not philanthropic only but, the verie praecept of law? That is a point, saith Francis Bacon 'in his maxims, worthie to<div align="right">'be</div>
----
----
<div style="font-size: 85%;">* Orestes.</div>
</blockquote>
===Page 15===
<blockquote>
be observed generalie in the rules of law, that when they encounter and cross one another, in any case, it be understood which the law holdeth worthier and to be prefered, and it is in this particular, very notable to consider, that this rule, ''verba fortius accipiuntur cont a proferentem'', being a rule of some strictness and rigor, doth not as it were its office but in absnece of other rules of more equitie and humanitie.'

If then, in a doubtful case or question the law itself direct equitie to prevale over rigor, did not the arbitrators, whose sentence was the reverse, * MISTAKE THE LAW.

David Ross, after the Richmond common law district courts judgement against him was affirmed, presented a bill in equitie to the Richmond chancerie diestrict court praying an injunction, which was awarded; whether rightly or not is the subject of the present tractate.

<center>In the Richmond district court of chancerie,
Between David Ross, plaintiff, and Richard Morris, Elizabeth Overton, Richard Overton
and Samuel Overton, defendents,</center>

This cause, heard, by consent of parties, the 25th day of may, in the third year of the nineteenth centurie of the christian aera, on the bill, answers, exhibits, and examinations of witnesses, was discussed by the court, after attending to councils arguments, in the terms following:<div align="right">A</div>
</blockquote>
===Page 16===
<blockquote>
A rented farm is ingulphed in the chasm of an earth-quake, or is overwhelmed by the lava, boiling over the brim, and running down the sides, of a burning mountains crater, during an eruption,

______''Quoties Cyclopum effervere in agros Vidimus undantem ruptis fornacibus Ætnam Flammarum que globos liquefactaque volvere saxa;''

A rented house is consumed by fulgurant or hostile fire, or is submerged and depressed in a deluge, or is swept off its site by a torrent, a * typhon, a prester, or a hurricane, or subverted or dilapidated by a landslip, a snowslip, or as in this instance, by an ice-slip;

Eversion of some houses, adjacent to another already burning is necessarie to prevent wide devastation, otherwise, inevitable, the fire, ''vulcano superante'', baffling all attempts to extinguish it or interrupt its progress; the flame is now, ''furentibus Austris'', in a high wind, communicated, to the contiguous aedifices,

''______________jam proximus ardet Ucalegon:''

the houses nearest are prostrated and destroied accordinglie; one of these victims, thus devoted for salvation of those in danger of being involved in the combustion, is a leased tenement, for which a rent is paible;

If any such a case as hath been described, and one of them the principal case appeareth<div align="right">to</div>
----
----
<div style="font-size: 85%;">* Plinii, tom' I. lib' II, cap. XLVIII. Lucretii lib.' VI. V. 424.</div>
</blockquote>
===Page 17===
<blockquote>
to be, arbitrators condemning the tenent to pay rent with which he was supposed to have charged himself by covenant in general terms, although, without his fault, he was deprived of the ''quid pro quo'', the thing for use of which he should be charged, decide unrighteously, contrary to principles of equitie never doubted.

Human providence, so hebete and limited are our faculties! is inadequate to prevention of numberless contingent evils, cannot guard against them. Happy therefore was institution of a ''curia prætoria'', court of equity, by the benignitie whereof, in opposition to that ''summum jus'', which in the ''curia censoria'' the common law court often times is ''injuria summa'', parties in contracts, as well as in other examples, are freed from detrimentose effects, avoidance of which, if they had been foreboded, would have been stipulated.

If this controversie had been laid, in the first instance, before a court of equitie, the judge herhaps might have propounded these questions: first, was such a disaster expected rationaly to happen? second, would not the parties, if they had thought such an event, and believed it probable, have consented, that, until the mill should be rebuilt, or the matter adjusted some other way, rent should not be paid? and have accordinglie stipulated?

No man who doth fancie that a prodigie will terrifie the citizens residing near James river everie seven years, will answer the form-<div align="right">er</div>
</blockquote>
===Page 18 ===
<blockquote>
er question affirmativelie; nor will any man, who doth not suppose the parties to have been one a knave and the other a fool, give a negative answer to the latter question.

The court of equitie, then, if before it the case had been brought originalie, would undoubtedlie, yes undoubtedlie, have relieved David Ross from his obligation, if indeed he, by his agreement, legalie were obliged, to pay rent during vacation of the subject, out of which the law itself supposeth that rent, ''reditus'', to grow, to return as it were, and which is the fund charged with paiment of the rent; would have placed the parties in the situation where the precepts of natural justice incontestablie direct them to be placed, and where the parties (probablie! yea certainlie, because otherwise no man will believe the tenement would have assumed in everie event the burthen,) would have consented to be placed, if they had supposed that a flood driving before it everie thing in the direction of its current would happen.

A decree, congruous with these sentiments is pure equitie, would leave those, who had the dominion of a mill, and him, who had a temporarie right to what emolument could be produced from it, would leave a landlord and landlady sustaining the loss of a machine their propertie, destroied by misfortune unforeseen and ineluctable, and would leave an ddeclare a blameless usufructuarie discharged from paiment of rent, when he could no longer enjoy<div align="right">that</div>
</blockquote>
===Page 19===
<blockquote>
that, for which the rent was an ______ that for which the rent was a retribution.

A like decree would be justifiable, if a mesuage, invaded by pestilence, should become deleterious.

Again, the contract between the parties was imperfect, was an epitome, compendium, designed to be drawn more particularlie, more explicitelie.

If, before the fatal night, one of them, instituting a prosecution against the other, had demanded performance of this article which is contained in the subjoined clause, and Richard Overton and Elizabeth Overton had insisted, that David Ross in all events should bind himself to deliver a mill, at expiration of the term, and pay rent for it, in the mean time, and David Ross had relied upon the exemption now clamed by him, alleging that at least he was not bound either to rebuild the mill, or, before the lessor should have built it, to pay rent for it, after intire demolition of it by lightning, a * turbo, or other tempest, or an inundation, could any judge, who should have decided this difference in favour of Richard Overton and Elizabeth Overton, have correct notions of justice, equitie, law? By this interrogatorie the querist intendeth a vehement negation.

If a court of equitie, to which one partie had in the first instance applied, would have<div align="declared">that</div>
<div style="font-size: 85%;">* Plinii, tom' I, lib' II, cap' XLVIII. Taciti annal' lib' XVI, c. 13.</div>
</blockquote>
===Page 20===
<blockquote>
declared David Ross not chargeable with rent, even if for paiment thereof his contract, understood in a sense most rigorous, had imported a legal obligation, we are taught, by supreme judical authoritie (in the cases of [[Beverley v. Rennolds|Beverley against Reynolds]], and of [[Dawson v. Winslow|Dawson against Winslow]] that awards contravening principles of equitie, no less than principles of law, may be rescinded.

The arbitral sentence was contrarie to law too.

The contract between Richard Morris, on behalf of the owners of the mill, and David Ross ws what is called synallagmatic, that is reciprocal. ''Labeo definit contractum autem ultro citroque obligationem quod graeci _______ vocant: veluti emptinonem, venditionem, locationem, conductionem, societatem, Digest,' lib' L' tit' xvi. l' xix. that is, the contract was on both sides obligatorie. Richard Overton and Elizabeth Overton owners of a mill THEN, theretofore, erected were obliged to permit David Ross to work it, for his own benefit, during seven years, and he was obligated, to pay rent, and, at expiration of that term, to deliver THE SAID MILL IN TENENTABLE REPAIR.

These obligations and the rights correspondent were altern, were causes and effects each of other.

David Ross, so long as he could work the mill ERECTED THEN, mill which had been ERECTED BEFORE, was for that<div align="declared">cause,</div>
</blockquote>

===Page 21===
<blockquote>
cause, obliged to pay, and Richard Overton and Elizabeth Overton had a right to demand the effect of that cause, rent; and Richard Overton and Elizabeth Overton so long as David Ross paid rent, were obliged for the cause, to permit him to work, and he had a right to work, the mill, and they had a right to the rent, the effects of those causes. The rights and obligations of the parities were synchronous, were equal in duration: whilst the mill remained, and could be worked, the lessors had a right to rent; but when the mill had vanished, when a divulsion, a dislocation, a dissipation, of its parts were such that a reunion of those parts, if they could have been found, was impracticable; when the mill existed not otherwise than in fragments, partlie floating on the surface and partlie sunk to the bottom of the James, Chesapeake, or Atlantic, the right to rent ceased.

David Ross by his agreement, obliged himself to pay rents for a mill THEN erected, a mill which might require repairs, during the term, not for a mill TO BE erected; obliged himself to deliver the SAID mill, that is the mill THEN erected, in tenentable REPAIR, not to deliver a NEW mill which might not require repairs during the term, in place of the OLD, if it should be totalie dilacerated.

And that an arbitral sentence, of which the authros appear to have misconceived the law,<div align="declared">may</div>
</blockquote>
===Page 22===
<blockquote>
may by this court be abrogated, is supposed to have been admitted universalie.

Finalie, the sentence, pronounced ''partibus absentibus'' when the hparties were absent, ''imo partibus inauditis'' when the hparties were not heard, was for that reason a nullitie, surelie no proof is required of that.

The court therefore doth adjudge and decree, that the injunction, &c.' be perpetual, as it is hereby prounounced to be perpetual; and that the defendents Richard Overton, Elizabeth Overton and Samuel Overton reimburse to the plaintiff the costs expended by him in prosecuting this suit.
</blockquote>
==References==
<references/>

[[Category:Cases]]

Overton v. Ross

2015-02-24T15:07:05Z

Cjhunter:

{{DISPLAYTITLE:''Case of Overtons Mill''}}
[[File:WytheCaseOfOvertonsMill1803.jpg|thumb|right|300px|First page of ''The Case of Overtons Mill: Prolegomena, in the Richmond Common-Law District Court, Elizabeth Overton and Richard Overton, Plaintiffs, Against David Ross, Defendent'' by George Wythe (Richmond, 1803?). Image from a copy at the Library of Virginia.]]
''The Case of Overtons Mill'' (1803)<ref>George Wythe, ''The Case of Overton's Mill'' (Richmond, 1803?).</ref> discussed whether the renter of a mill was liable for the repairs to a mill that was destroyed due to circumstances beyond the renter's control. Wythe heard this case as the chancellor for the Superior Court of Chancery of the Richmond District, one of the three Chancery Court Districts that were created after the Virginia Assembly dissolved the High Court of Chancery in 1802.
==Background==
David Ross leased land and the mill on it for seven years from Richard Morris, who was acting as an agent for Richard and Elizabeth Overton. The lease said that Ross would be responsible for the construction of certain buildings, making improvements, paying taxes, and restoring the mill "in tenentable repair" by the end of the lease term.

In January 1784, an unexpected ice movement beyond Ross's control destroyed the mill. Ross believed he was not obligated under the lease to rebuild the mill or continue paying rent, but the Overtons disagreed. The Overtons and Ross brought the case to arbitrators. In 1784, the arbitrators issued a decision stating that Ross was obligated to continue paying rent and to "perform the other covenants contained in the said lease".

The Overtons later filed suit in the common-law side of Richmond District Court, claiming that Ross failed to uphold his responsibilities under the lease, and that he therefore owed the Overtons £6000. Ross stated that he had upheld all his duties under the lease, and that nowhere in the arbitrators' decision was there mention of a possibility of £6000 in damages. The court awarded the Overtons £3500 in damages plus court costs, and Ross appealed the decision to the Virginia Supreme Court of Appeals.

==The Supreme Court of Virginia's Decision (1802)==
The Supreme Court affirmed the District Court's decision and awarded costs to the Overtons.<ref>''Ross v. Overton'', 7 Va. (3 Call) 309 (1802).</ref>

Ross's first objection to the District Court's decision was that the date the Overtons claimed the contract was signed in their complaint was different than the date given in the arbitrators' decision. The arbitrators said that the contract was signed on May 22, 1784. In their complaint, the Overtons said that they signed the contract on ___ 25, 1784 (they left out the month). Ross argued that this discrepancy between dates voided the agreement. The Supreme Court said that because the parties agreed on all other points, in a situation where the plaintiff gave no date or an impossible date for the contract signing in the complaint, the plaintiff can plead that the contract was signed on any day that the plaintiff can prove the contract was delivered. Because the arbitrators must have had a copy of the contract signed May 22, 1784, the Overtons could use that as the alleged date the contract was signed.

Ross's second objection was that the arbitrators made a mistake in interpreting the law when they required Ross to continue paying the rent and performing other duties under the rental contract, even after the mill was destroyed by an event beyond Ross's control. While a court normally should not overturn an arbitrator's decision, it can do so in situations in which the arbitrator made an error of law. The Supreme Court said that this question of law was a doubtful one that required substantial argument on both sides to determine the answer. Courts will not overturn an arbitrator's decision just because the arbitrator erred in interpreting a legal question that a reasonable person thinks could go either way. Ross also argued that the covenant of quiet enjoyment meant that the Overtons insured the property against all accidents, but the Court said that the covenant only protected against legal claims, not a "separation of continuity" such as robbery or loss of property through destruction.
==Wythe's Discussion of the Supreme Court Decision==
Wythe dissected the Supreme Court's decision, bit by bit.

Wythe said that the Supreme Court was dodging the issue of the discrepancy between the date the Overtons alleged the contract was signed and the date given in the arbitrators' decision. Contrary to the Supreme Court's contention, "the 25th of 1784" is just as much a date as "May 25th, 1784". The [https://en.wikipedia.org/wiki/Areopagus Aeropagus] would have considered "the first date of X Olympiad" a date, even if the month or day of the month were omitted. No philosopher, whether Aristotle, [https://en.wikipedia.org/wiki/Petrus_Ramus Ramus], [https://en.wikipedia.org/wiki/John_Milton Milton], or [https://en.wikipedia.org/wiki/William_Duncan_%28philosopher%29 Duncan], would instruct their students to make such a large assumption as to say that the Overton's allegations had "no date". Wythe also cited to John Locke's [[Works of John Locke|''Essay on Human Understanding'']<ref>John Locke, ''Essay on Human Understanding'', Book 3, Ch. 6.</ref> for further support. At any rate, the Overtons said that the contract was signed on the 25th, which cannot magically become the 22nd (the date cited in the arbitrators' decision) no matter how hard they try.

Wythe said that the question of whether the Overtons guaranteed Ross against all forms of loss was the wrong one; the proper question was whether Ross should still be liable for rent after the destruction of the mill, which Wythe compared to a scene described in [[Odyssey of Homer|Homer's ''Odyssey'']].<ref>''"Ὄσσαν ἐπ᾽ Οὐλύμπῳ μέμασαν θέμεν, αὐτὰρ ἐπ᾽ Ὄσσῃ Πήλιον εἰνοσίφυλλον"''. "To heave upon Olympus Ossa strove,/On Ossa, Pelion's vacillating grove". Wythe, ''The Case of Overton's Mill'', 9, citing Homer, ''Odyssey'': Book 11, ln. 315-16. This refers to Otus and Ephialtes, the [http://en.wikipedia.org/wiki/Aloadae Aloadae]. The Aloadae were giants who were sons of [http://en.wikipedia.org/wiki/Iphimedeia Iphimedeia] and Poseidon. The Aloadae sought to storm heaven by piling Mount Ossa on Mount Olympus, then Mount Pelion on top of Mount Ossa.</ref>

Wythe said that there were plenty of previous decisions in which courts had said they could properly assume appellate jurisdiction over arbitrators' decisions, regardless of whether the arbitrators had made a mistake of fact or law. The doubtfulness of the law and the facts make this case an especially strong candidate for a new trial or appellate hearing, rather than removing it from a court's jurisdiction. If a court in equity, such as the Chancery Court, were to follow English common-law precedents to determine when it could award a new trial, then Wythe opined that it would find itself as badly misled as Demea was by his servant Syrus in [[Publii Terentii Afri Comoediae Sex|Terence's comedy ''The Brothers'']]<ref>Terence, ''Adelphoe (The Brothers)'', Act 4, Scene 2.</ref> and equally worthy of derision for its gullibility. Wythe added (for emphasis, perhaps?) that this is a situation in which it would be better if English caselaw precedent had simply been consumed by the [https://en.wikipedia.org/wiki/Lethe Lethe] (one of the rivers flowing through Hades that inflicted forgetfulness on anyone who drank from its waters), much as Overtons Mill was overtaken by the James River.

Wythe wondered aloud what might have resulted had Ross employed more attorneys at the Supreme Court; perhaps, Wythe pondered, the Supreme Court might have decided that a landlord was responsible for insuring rental property.

Wythe also criticized the Supreme Court opinion for inconsistency, saying that "(t)he question or case, as it is some times called, is in four places SUPPOSED to be doubtful, in a fifth place is EVINCED, i'e,' proved, to be doubtful, in (a) sixth place, as appeareth by the words, 'it is our opinion, that the arbitrators did not mistake the law,' is EVINCED, proved, NOT to be doubtful."<ref>Wythe, ''Case of Overtons Mill'', 13.</ref> To Wythe, the legal question's doubtfulness in the Supreme Court opinion seemed to appear and reappear as easily as [http://en.wikipedia.org/wiki/Gyges_of_Lydia Gyges of Lydia] as described in [http://lawlibrary.wm.edu/wythepedia/index.php/Platonis_Philosophi_Quae_Extant_Graece|Plato's ''Republic''].<ref>Plato, ''Republic'' 2. According to Plato's story, Gyges was a shepherd who discovered a magic ring that allowed him to become visible or invisible depending on the direction he turned its bezel.</ref>

Wythe mulls over what is truly equitable in a situation in which the legal rule is in doubt. If an even number of judges are assumed to fall on both sides of the argument, then a defendant should be acquitted.<ref>Wythe uses the Latin phrase ''sententiis paribus reus absolvitur''. Wythe, ''Case of Overtons Mill'', 14.</ref> Wythe notes that "the voice of wisdom, Minerva<ref>Here, Wythe refers to the Roman goddess Minerva instead of the Greek goddess Athena, even though he is citing a play written by a Greek poet. This may have been normal for a scholar of his time who was trained in the classics. Until modern times, normal practice for English translators was to use the Latin equivalent of ancient Greek names, since that is what they were used to from reading Virgil and Ovid in school. Homer, Robert Fagles (trans.), "The Spelling and Pronunciation of Homeric Names", in ''The Iliad'' (New York: Penguin Books, 1991), 65.</ref> herself" says in Aeschylus's [[Hai tou Aischylou Trageodiai Seozomenai Hepta|play ''The Eumenides'']], that "the law absolve the matricider/For equal votes the court divide."<ref>''The Eumenides'' is the concluding play in Aeschylus's [http://en.wikipedia.org/wiki/Oresteia ''Oresteia'' trilogy], which details the breaking of the curse on the [http://en.wikipedia.org/wiki/House_of_Atreus House of Atreus]. In ''The Libation Bearers'', the second play of the trilogy, Orestes (spurred on by his sister Electra and the god Apollo) kills his mother Clytemnestra, to avenge the death of his father (and Clytemnestra's husband) Agamemnon. In ''The Eumenides'', the Furies (spirits who avenge patricide) seek to execute Orestes for his deed. Athena (whom the Romans equated to their goddess Minerva) steps in and forms a jury of twelve people to judge Orestes's guilt, stating that a tie would result in acquittal. The jury splits evenly, and Athena convinces the Furies to accept Orestes's acquittal.</ref> One of [[Works of Francis Bacon|Francis Bacon's maxims]] states that when rules of law cross each other, the worthier principle should be upheld.<ref>Francis Bacon, "Verba fortius accipiuntur cont a proferentem", ''The Works of Francis Bacon: Law Tracts. Maxims of the Law''.</ref>

==The Chancery Court's Decision==
After the Virginia Supreme Court upheld the common-law Richmond District Court's decision, Ross filed a bill in equity with the Richmond District Superior Court of Chancery,<ref>In 1802, the Virginia Assembly split the High Court of Chancery into three Superior Courts of Chancery, each court assigned to a geographic district, to decrease the equity courts' backlog. Thomas Jefferson Headlee, Jr., ''The Virginia State Court System, 1776- '' (Richmond, VA: Virginia State Library, 1969): 13. Wythe became the chancellor for the Richmond District.</ref> which heard the case on May 25, 1803. Wythe granted Ross a permanent injunction against the Richmond common-law District Court's decision and awarded Ross court costs for the Chancery Court stage.

Wythe begins the text of his opinion by describing the many ways beyond a renter's control that a leased building can be destroyed. Wythe quotes the description in [[Works of Virgil, Containing His Pastorals, Georgics and Æneis|Virgil's ''Georgic'']] of Mount Etna erupting,<ref>''"______Quoties Cyclopum effervere in agros Vidimus undantem ruptis fornacibus Ætnam Flammarum que globos liquefactaque volvere saxa;"'' Virgil, ''Georgic'', Lib. I, ln. 471-73.</ref> the sacking of Troy as described in [[Works of Virgil, Containing His Pastorals, Georgics and Æneis|Virgil's ''Aeneid'']],<ref>''"______________jam proximus ardet Ucalegon"''. Virgil, ''Aeneid'', 2.311. In this line, Aeneas notes that he is next to [http://en.wikipedia.org/wiki/Ucalegon Trojan elder Ucalegon's] house, which was burned by the Achaeans when they sacked Troy.</ref> and Pliny the Elder's description of the nature of wind in his [[C. Plinii Secundi Naturalis Historiæ|''Natural History'']].<ref>Pliny the Elder, ''C. Plinii Secundi Naturalis Historiæ'', Tom. I, Lib. II, Cap. XLVIII. Pliny the Elder died while investigating Mount Vesuvius's eruption; perhaps Wythe had this in the back of his mind when he included these cites in his litany of natural disasters?</ref> Wythe also cites Titus Lucretius Carus's description of meterological phenomena in his book [[De Rerum Natura|''On the Nature of Things'']]<ref>Titus Lucretius Carus, ''De Rerum Natura'', Lib. VI, v. 424.</ref> and Tacitus's description in his [[C. Cornelii Taciti Opera, Quae Exstant|''Annals'']] of a whirlwind that destroyed Campania.<ref>Cornelius Tacitus, ''Annals'', Lib. XVI, Ch. 13.</ref>

Wythe says that Ross's situation is similar to those described in the ancient works. In such a situation, where a tenant lost their property through no fault of their own, no judge could find it equitable to force the tenant to continue to pay rent. This is one of those situations a court of equity was designed for, a situation in which equity can properly mitigate the harsh results the common law would dictate. A judge in equity investigating Ross's situation should ask whether such a disaster was rationally expected; and if so, whether the parties agreed that the tenant should continue paying rent until the mill was rebuilt.

Wythe said that the arbitrators' decision did not follow the law. He cited [[Corpus Juris Civilis|Justinian's ''Digest'']] for the idea that a contract is a reciprocal obligation.<ref>Justinian Dig. 50.16.19.</ref> While the mill remained operational, the Overtons had a right to demand work and rent from Ross. Ross, in turn, had the right to work the mill. Once the mill disappeared, Ross's obligation to pay rent or to work on the mill ceased.
==Supreme Court of Virginia's Decision (1808)==
Morris and the Overtons appealed Wythe's decision to the Virginia Supreme Court of Appeals, which reversed Wythe's decree.<ref>''Morris v. Ross'', 12 Va. (2 Hen. & M.) 408 (1808).</ref>

Supreme Court judge (and former Wythe student) [[St. George Tucker]] joined judges [https://en.wikipedia.org/wiki/Spencer_Roane Spencer Roane] and [https://en.wikipedia.org/wiki/William_Fleming_%28judge%29 William Fleming] in stating that a court of equity should not grant relief in a case in which a court of law has already decided on the same points of controversy. Judge Fleming expressed sympathy for Ross's position and said that he might have ruled differently had he been one of the arbitrators, but that Ross was still bound by the arbitrators' decision.

==Transcribed text of the opinion: The Case of Overtons Mill==
===Page 1===
<blockquote>
PROLEGOMENA

In the Richmond common-law district court, Elizabeth Overton and Richard Overton, ''plaintiffs'', against David Ross, ''defendent''.

THE plaintiffs demanded 6000 pounds, complaining and declaring that the defendent, who had, on the 25th day of       in the year 1784, by a sealed writing obligatorie, to the court shewn, the date whereof is the same day and year, acknowledged himself to be indebted to the plaintiffs the said 6000 pounds, yet refused to pay the money to them, wherefore they sued.

The writing obligatorie, in an assignment of the breach of its condition, is said to have been executed on the       day of      , in the year 1784.

It was, by the condition, to be void, if David Ross should perform the award of three persons, mutualy chosen to determine a controversie between the parties relative to a lease or agreement.

The agreement, signed and sealed by David Ross only, purported, that Richard Morris, on behalf of Richard Overton and Elizabeth Overton, leased to David Ross a parcel of land, with a grist-mill then erected thereon,<div align="right">a</div>
</blockquote>
===Page 2===
<blockquote>
a fisherie, and other advantages, to be holden and enjoied by him, free from all interruption and molestation whatsoever, for seven years from August, 1783; and the David Ross engaged to build certain aedifices, and make other improvements, pay taxes, restore the said mill, in tenentable repair, with the improvements, at expiration of the term, and during the continuance thereof, pay rents. Subjoined are these words: 'a more particular agreement, or lease in due form, shall be executed, at any time either of the parties shall require; this agreement being taken for the basis of it. David Ross.'

The arbitrators, after reciting their authoritie, i'e', the writing obligatorie, on which the action is supposed to have been brought, and which in the award, but no where else, is alleged to be dated the 22d day of May, 1784, say, "they met, and considered the lease or agreement aforesaid,' the substance whereof they repeat, adding, 'it appears by the admission of each partie, that in januarie, 1784, by an extraordinarie and unexpected movement of the ice, the mill-house was intirelie demolished, and the said Ross had it not in his power to prevent the same. In persuance of the submission aforesaid, we do award and determine that the said David Ross shall pay the rents reserved in the said lease or agreement, notwithstanding the accident aforesaid, and that the said David Ross shall complie with and perform the other covenants contained in the said lease.'<div align="right">The</div>
</blockquote>
===Page 3===
<blockquote>
The defendent pleaded that he had performed the condition of the writing obligatorie in the declaration mentioned, and that there was no such award as is mentioned by the plaintiffs in their breaches assigned.

The plaintiffs replied generaly. Issues were joined; and the jurie found a verdict for the plaintiffs, assessing 3500 pounds damages, for which, with costs, judgement was rendered.

The defendent appealed.

Opinion of the court of appeals in affirmance of the district courts judgement, with quaries and remarks. Paragraphs of the opinion are in italic characters.

<center>In the court of appeals,</center>
Between David Ross, appellant, and Elizabeth Overton and Richard Overton, appellees,

''In this cause, two objections have been made to the judgement of the district court: first, that there is a variance between the award and the bond of submission stated in the declaration, the former refering to a bond dated the 22d of May, 1784, and the declaration stating the bond in suit to be dated the 25th of       1784. In supporting this objection the counsil principaly relied on the case of'' Turner v' Moffet ''in this court, reported in '' 2 Wash' 71. ''But that case does not apply; since the variance was apparent on the record, against which no averment is admissible: and''<div align="right">Was</div>
</blockquote>
===Page 4===
<blockquote>
Was not the variance in the principal case, if a variance be there, apparent on the record? The obligation and award are both exhibited in court, and entered in the book registering allegations of the parties litigant and acts of the court, that is, were recorded; and is not the variance, between the bond and award which is shewn by comparison of one with the other of them, as apparent on the record here as the variance between the submission and award in the case cited?

''It was truly observed by the attorney general, that that case was distinguishable from the present, which, being a bond for the submission, was a matter'' en pais, '' and the supposed variance might be corrected by averment. The declaration states, that the defendent, on the 25th day of       1784, by obligation, the date whereof is the same day and year, bound himself to the plaintiffs. In the breaches assigned, annexed to the declaration, after reciting the lease to the defendent, and its essential covenants, on his part, that differences had arisen, which they had mutually agreed to refer to arbitration, the plaintiffs aver, that they entered into bond, similar to that entered into by the defendent, to abide by the award, and that the defendent, on the same day, to with, the       day of       1784, executed the bond in the declaration mentioned. It is obvious, from the award, that the arbitrators had before them not Rosses bond but, that entered into by the plaintiffs, which, they say, is dated the 22d of May, 1784.''<div align="right">If</div>
</blockquote>
===Page 5===
<blockquote>
If the variance were only 'supposed,' were an ''hypothesis'', that is, if no variance were, an averment to 'correct' it was superfluous, the date of the bond was correct, without averment. If between the 25th day of       1784, and the 22d day of May, 1784, a variance be, what will authorize averment, that those days were the same? An evasion of this question may be, but a categoric answer to it is not, expected: evasion, as hereafter appeareth, thus: 'the bond hath no date;' and 'we consider the date of the bond,' 25th of       in the year 1784, 'and the blank date of averment,'      day of       in the year 1784, 'to be no date.'

''Without going over the several cases cited, the rate laid down in'' I ''lord Raym' 335 seems to have run thro' them all, that is, that if a bond hath either none or an impossible dated, the plaintiff may aver an day which he can prove the bond to have been delivered.''

No man ought to have controverted the rectitude of this rule, if lord Raymond had not laid it down. But every man is not convinced that the rule is proved to APPLY to this case by such argumentation as

''The present case is that of no date to the bond''.

Did Aristotle, Ramus, Milton, Duncand, &c. in their dialectic institutions, teach their disciples that in a syllogism the minor proposition, as is done here by these words, 'the present case is that of no date to the bond,' may be taken for granted?<div align="right">''For''</div>
</blockquote>
===Page 6===
<blockquote>
''For the counsils curious criticism, refering the'' 25 ''day of something to that day of the year was calculated only to occasion the mirth it produced. We consider that, as well as the blank date averment, to be no date, and of course, there is no variance between that and the true date mentioned in the award.''

Passing over some 'curious' phrases occuring in the paragraph immediatelie preceding, and the conclusion, as 'curious' as any of them, namelie, 'of course there is no variance between that,' the 25 day of       in the year 1784, 'and the blank date averment,' the       day of       1784, 'there is no variance between these "and the true date mentioned in the award,' that is, there is no variance between the date of a bond 'of no date,' or a bond of a date which 'we consider to be no date, and the date of a bond which hath a true date; passing over this phraseologie perplexed, inexplicable, inconsistent, we ask,

Can the bond, which Richard Overton and Elizabeth Overton recite in their declaration, and whereof the date is there alleged to be the same day and year, i'e,' the 25 day of       in the year 1784, be trulie said to bear no date? Is not a year, distinguished by the number of isochronous revolutions computed from a known epoch, a date no less trulie, tho' less preciselie, than a month, or a particular day of any month specially named, in that year? An olympiad was a quaternion or period of four years used antiently by the greeks for sup-<div align="right">putations</div>
</blockquote>
===Page 7===
<blockquote>
putations of time: would Areopagus have 'considered a bond,' the date whereof was in the first, second, third or fourth, year of some one olympiad, to be a bond 'of no date,' because the name of hecatombaeon, or of scirrophorion, or of some one of the ten intervening months, or the day of the month was omited? The roman aera was the building of the citie; would the ''praetor'' have 'considered a bond,' the date whereof was in a certain year of the citie build, to be a bond 'of not date?' Europeans and british americans observe, for the same purpose, Jesus Christs nativitie; if lord Raymond in Westminsterhall had said 'he considered' a bond the date whereof is the 25 day of       in the year 1784, to be 'of no date,' it probalie would have 'occasioned' there no less mirth, than a counsils 'criticism' produced in the capitol, when some reasons for affirming the district courts judgement were attempted to be explained; and when that affirmance was proclaimed, might not one of the auditorie have asked ''risum taneatis amici?''*

In truth no date could have been avered, but the 25 day of some month between december, 1783, and june of the succeeding year, for on the 15th day of that month the arbitrators power expired.<div align="right">The</div>
----
----
<div style="font-size: 85%;">* Perhaps the foregoing concionation, by this time, has disposed the auditors to oscitation rather than cachinnation; they might be too drowsie to laugh.</div>
</blockquote>
===Page 8===
<blockquote>
The year was certain, 1784. The day of some month was certain, the 25th. And although the plaintiffs could have supplied the blank left for the month with May, they could not aver the 25th to have been the 22d day.

Again, if in this case Richard Overton and Elizabeth Overton could have avered the bond to have been dated any day on which they could have proved the bond to have been delivered, we ask, where in the declaration, or in the assignment of breaches, doth an averment, that the bond was dated the 22d day of May, 1784, appear? is an allegation to that purpose in the award, which is an act of the arbitrators, an averment of the plaintiffs Richard Overton and Elizabeth Overton!

''In every other thing, in parties, in controversie, and arbitrators, they agree. And on this point there is no error in the judgement of the district court.''

To this conclusion they who can admit the truth of its premisses, will subscribe.

''On the second point, it was argued by mr. Wickham, that under the covenant for quiet enjoiment the Overtons were the insurers of the propertie against all accidents. But surelie that covenant, which does not* differ essentialie from others of the like kind, only obliges the lessor to defend the enjoiment of the lessor to defend enjoiment of the lessee against legal clames, and not against a separa-''<div align="right">''tion''</div>
----
----
<div style="font-size: 85%;">* DIFFER ESSENTIALIE from others of the LIKE KIND! are differences between individuals of like kinds, like species, called ESSENTIAL? See Lockes essay on human understanding, book III, chap. VI.</div>
</blockquote>
===Page 9===
<blockquote>
''tion of continuitie from robbers, thieves, trespassers, or the ice.''

Mr. Wickhams argument; if it be vicious, seems an ''ignoratio clenchi'', mistake of the question. Let the question, whether Richard Overton and Elizabeth Overton, or their friend Richard Morris, under the covenant for quiet enjoiment, were insurers of the propertie against all accidents, or were obliged to defend the enjoiment, against only legal clames? let that question not be proper: this question, whether, without a special covenant, they remained insurers of their own propertie, that is; were obliged, when it was demised to a tenant paying rent for enjoiment of it, to sustain the loss of that propertie irreparable, so that it could be enjoied no longer, prostrated and crushed by islands of ice, piled one upon another, resembling a mountain, and exhibiting a spectacle no less tremendous than when Ephialtes and Otus,
<blockquote>Ὄσσαν ἐπ᾽ Οὐλύμπῳ μέμασαν θέμεν, αὐτὰρ ἐπ᾽ Ὄσσῃ<br />
Πήλιον εἰνοσίφυλλον<ref>Homer, ''Odýsseia'', XI, 315-316.</ref><br />

To heave upon Olympus Ossa strove,<br />
On Ossa, Pelion's* vacillating grove?</blockquote>

or rather, whether David Rosses obligation to pay rent for a mill THEN ERECTED, THEN BEING, continued after the SAID mill was DISJECTED, CEASED TO BE? this is a proper question.<div align="right">''This''</div>
----
----
<div style="font-size: 85%;">* Vacilians arbor Lucret'lib'v, v' 1097.</div>
</blockquote>
===Page 10===
<blockquote>
''This second objection is, that where it is apparent in the award that the arbitrators decided upon principles, in which they were mistaken, either in law or fact, the court will set aside the award, and they were so, in the present case, since it being stated, that the millhouse was intirelie demolished by an extraordinarie and unexpected movement of the ice, which Ross had it not in his power to prevent, they mistook the law, when they awarded Ross to pay the rent and perform his other covenants in the lease, notwithstanding the accident. For the sake of precedent, the court, first, considered how far they ought to interfere with awards, upon this ground, and are of opinion, that they ought not to consider themselves as an appellate court from the judgement of the arbitrators, and reverse it, merelie because we differ from them on a doubtful question;''

That courts of civil institution ordinarilie have not appellate jurisdiction over sentences of arbitrators, unless those compromissorie judges mistake a fact, or the law, would not have been disputed if no precedents, of which manie however, earlier than this, are extant, had approved the doctrine.

''But ought to place ourselves in the place of a court applied to, to grant a new trial, because the verdict is contrarie to evidence, which ought to be granted only in case of a plane deviation, and not in a doubtful one, merelie because the court, if on the jurie, would have given a different verdict; since that would be to<div align="right">''assume''</div>
</blockquote>
===Page 11===
<blockquote>
''assume the province of the jurie, whom the law hath appointed the triers.''

What is meant by 'case of a plane deviation?' a deviation, a departure, from what? from the truth of facts planelie proven, or from the rule planelie praescribed by law? are new trials never granted in even 'doubtful cases?' when a court and a jurie disagree, may we not call that a doubtful case? are not new trials some times granted for the very reason that the cases are 'doubtful,' that is, difficult? yea, have not new trials been granted, and even decrees pronounced, in direct opposition to verdicts certified by the courts, before which they were found, to have been 'against the weight of evidence?' with this preceent have the precedents in the cases of [[Southall v. M'Keand|Southall against Mackeand]] and [[Woods v. Macrae|Woods against Macrae]], ''cum multis aliis'', perfect symphonie?

The judge of an equitie court, who by this precedent, is refered to the practice of common law courts, in awarding new trials, to learn in what cases he will be justified in abrogating awards, if he shall, for that purpose, consult those oracles, will probablie be delaied, distracted, misled, disappointed, as in ''Terentii Adelphi, act' 4, scen' 2'', old Demea was by the directions of his servant Syrus, and, in like manner, be derided for this simple credulitie.

''This rational distinction, between plane and doubtful cases, is observed in the books, which''<div align="right">''justifie''</div>
</blockquote>

===Page 12===
<blockquote>
''justifie the court in setting aside awards for mistaken principles.''

Is this period reducible into any one simple proposition from which any conclusion can be drawn?

''That this was, at least a doubtful question is evinced, not only by the number of counsil emploied to discuss it, ''

Did not this 'curious criticism produce the 'mirth it was well calculated to occasion?'

''But from the english'' [sic] ''decisions on the subject;''

Will not every reader of the line next above and its context lament, that english decisions, if they were allowed, and shall be yet allowed, to sanctifie such a sentence as was supposed to have been authorized by them, in this case, had not been ingurgitated in the Lethe, no less irrecoverable than Overtons mill was in the James?

''And on this ground* we think the district court did not err on this second part;''

Were the counsil emploied to discuss the question equalie numerous on both sides? If they had been fewer and equal in number, who knows that the question, whether, in case of such a catastrophe, the tenent was insurer of his landlords propertie? was, not doubtful but on the contrarie, clear in favour of the former? The tenent may have been unluckie that he did not, on his side, trie the experiment: he might perhaps have been more for-<div align="right">tunate,</div>
----
----
<div style="font-size: 85%;">* Doubtfulness of the question evinced partlie by the number of counsil emploied to discuss it.</div>
</blockquote>
===Page 13===
<blockquote>
tunate, if he had not trusted to the proverb, 'in the multitude of counsillors there is safetie?'

''At the same time, observing, that, stating it as a doubtful case, cannot be complained of by the appellant, since,''

The appellant doth complain, addressing a prayer for redress of his grievance to another tribunal, before which one subject of diceptation is this question: when the court of common law hath burthened a tenent with the loss of his landlords rented propertie, which the tenent had not insured, which OMNIPOTENCE destroied, and which human providence, vigilance, and energie could not have preserved, whether a court of equitie be not bound to exonerate the tenent?

''On the whole, it is our present opinion that the arbitrators did not mistake the law.''

The question or case, as it is some times called, is in four places SUPPOSED to be doubtful, in a fifth place is EVINCED, i'e,' proved, to be doubtful, in this sixth place, as appeareth by the words, 'it is our opinion, that the arbitrators did not mistake the law,' is EVINCED, proved, NOT to be doubtful. The vicissitudes of ambiguitie and certantie in the question or case seem to have been as quick, and as easilie produced, as those of the visibilitie and evanescence of Gyges the Lydian, who as Plato, ''de republ,' lib II, p''' 369, related, could effect these miracles, could appear and disappear when he pleased, by<div align="right">means</div>
</blockquote>
===Page 14===
<blockquote>
means of a ring, one, by turning the beazle of it towards himself, and the other, by an opposite exposure.

If the law be so, that, after a rented subject had been, by a tempest, reduced to atoms, if not annihilated, the tenent must pay the rent, notwithstanding, will the professors of law class it among liberal sciences, or this part of it at least with the reliques of dynastic, lordlie, feodal barbarism?

But perhaps the question may yet be doubtful. It seems possible from the words OUR PRESENT OPINION: if the question be doubtful, and to each side of it we suppose the same number of judges to incline, the voice of wisdom, Minerva herself, is ''sententiis paribus reus absolvitur'', the doom of equal suffrages is acquital,
<blockquote>

The laws absolve the * matricider<br />
For equal votes the court divide.</blockquote>

When competent judges of law declare a legal question to be doubtful, doth not the law seem at variance with itself? and then what umpire can be, with so much proprietie called to decide the question as aequitie? is not this, not philanthropic only but, the verie praecept of law? That is a point, saith Francis Bacon 'in his maxims, worthie to<div align="right">'be</div>
----
----
<div style="font-size: 85%;">* Orestes.</div>
</blockquote>
===Page 15===
<blockquote>
be observed generalie in the rules of law, that when they encounter and cross one another, in any case, it be understood which the law holdeth worthier and to be prefered, and it is in this particular, very notable to consider, that this rule, ''verba fortius accipiuntur cont a proferentem'', being a rule of some strictness and rigor, doth not as it were its office but in absnece of other rules of more equitie and humanitie.'

If then, in a doubtful case or question the law itself direct equitie to prevale over rigor, did not the arbitrators, whose sentence was the reverse, * MISTAKE THE LAW.

David Ross, after the Richmond common law district courts judgement against him was affirmed, presented a bill in equitie to the Richmond chancerie diestrict court praying an injunction, which was awarded; whether rightly or not is the subject of the present tractate.

<center>In the Richmond district court of chancerie,
Between David Ross, plaintiff, and Richard Morris, Elizabeth Overton, Richard Overton
and Samuel Overton, defendents,</center>

This cause, heard, by consent of parties, the 25th day of may, in the third year of the nineteenth centurie of the christian aera, on the bill, answers, exhibits, and examinations of witnesses, was discussed by the court, after attending to councils arguments, in the terms following:<div align="right">A</div>
</blockquote>
===Page 16===
<blockquote>
A rented farm is ingulphed in the chasm of an earth-quake, or is overwhelmed by the lava, boiling over the brim, and running down the sides, of a burning mountains crater, during an eruption,

______''Quoties Cyclopum effervere in agros Vidimus undantem ruptis fornacibus Ætnam Flammarum que globos liquefactaque volvere saxa;''

A rented house is consumed by fulgurant or hostile fire, or is submerged and depressed in a deluge, or is swept off its site by a torrent, a * typhon, a prester, or a hurricane, or subverted or dilapidated by a landslip, a snowslip, or as in this instance, by an ice-slip;

Eversion of some houses, adjacent to another already burning is necessarie to prevent wide devastation, otherwise, inevitable, the fire, ''vulcano superante'', baffling all attempts to extinguish it or interrupt its progress; the flame is now, ''furentibus Austris'', in a high wind, communicated, to the contiguous aedifices,

''______________jam proximus ardet Ucalegon:''

the houses nearest are prostrated and destroied accordinglie; one of these victims, thus devoted for salvation of those in danger of being involved in the combustion, is a leased tenement, for which a rent is paible;

If any such a case as hath been described, and one of them the principal case appeareth<div align="right">to</div>
----
----
<div style="font-size: 85%;">* Plinii, tom' I. lib' II, cap. XLVIII. Lucretii lib.' VI. V. 424.</div>
</blockquote>
===Page 17===
<blockquote>
to be, arbitrators condemning the tenent to pay rent with which he was supposed to have charged himself by covenant in general terms, although, without his fault, he was deprived of the ''quid pro quo'', the thing for use of which he should be charged, decide unrighteously, contrary to principles of equitie never doubted.

Human providence, so hebete and limited are our faculties! is inadequate to prevention of numberless contingent evils, cannot guard against them. Happy therefore was institution of a ''curia prætoria'', court of equity, by the benignitie whereof, in opposition to that ''summum jus'', which in the ''curia censoria'' the common law court often times is ''injuria summa'', parties in contracts, as well as in other examples, are freed from detrimentose effects, avoidance of which, if they had been foreboded, would have been stipulated.

If this controversie had been laid, in the first instance, before a court of equitie, the judge herhaps might have propounded these questions: first, was such a disaster expected rationaly to happen? second, would not the parties, if they had thought such an event, and believed it probable, have consented, that, until the mill should be rebuilt, or the matter adjusted some other way, rent should not be paid? and have accordinglie stipulated?

No man who doth fancie that a prodigie will terrifie the citizens residing near James river everie seven years, will answer the form-<div align="right">er</div>
</blockquote>
===Page 18 ===
<blockquote>
er question affirmativelie; nor will any man, who doth not suppose the parties to have been one a knave and the other a fool, give a negative answer to the latter question.

The court of equitie, then, if before it the case had been brought originalie, would undoubtedlie, yes undoubtedlie, have relieved David Ross from his obligation, if indeed he, by his agreement, legalie were obliged, to pay rent during vacation of the subject, out of which the law itself supposeth that rent, ''reditus'', to grow, to return as it were, and which is the fund charged with paiment of the rent; would have placed the parties in the situation where the precepts of natural justice incontestablie direct them to be placed, and where the parties (probablie! yea certainlie, because otherwise no man will believe the tenement would have assumed in everie event the burthen,) would have consented to be placed, if they had supposed that a flood driving before it everie thing in the direction of its current would happen.

A decree, congruous with these sentiments is pure equitie, would leave those, who had the dominion of a mill, and him, who had a temporarie right to what emolument could be produced from it, would leave a landlord and landlady sustaining the loss of a machine their propertie, destroied by misfortune unforeseen and ineluctable, and would leave an ddeclare a blameless usufructuarie discharged from paiment of rent, when he could no longer enjoy<div align="right">that</div>
</blockquote>
===Page 19===
<blockquote>
that, for which the rent was an ______ that for which the rent was a retribution.

A like decree would be justifiable, if a mesuage, invaded by pestilence, should become deleterious.

Again, the contract between the parties was imperfect, was an epitome, compendium, designed to be drawn more particularlie, more explicitelie.

If, before the fatal night, one of them, instituting a prosecution against the other, had demanded performance of this article which is contained in the subjoined clause, and Richard Overton and Elizabeth Overton had insisted, that David Ross in all events should bind himself to deliver a mill, at expiration of the term, and pay rent for it, in the mean time, and David Ross had relied upon the exemption now clamed by him, alleging that at least he was not bound either to rebuild the mill, or, before the lessor should have built it, to pay rent for it, after intire demolition of it by lightning, a * turbo, or other tempest, or an inundation, could any judge, who should have decided this difference in favour of Richard Overton and Elizabeth Overton, have correct notions of justice, equitie, law? By this interrogatorie the querist intendeth a vehement negation.

If a court of equitie, to which one partie had in the first instance applied, would have<div align="declared">that</div>
<div style="font-size: 85%;">* Plinii, tom' I, lib' II, cap' XLVIII. Taciti annal' lib' XVI, c. 13.</div>
</blockquote>
===Page 20===
<blockquote>
declared David Ross not chargeable with rent, even if for paiment thereof his contract, understood in a sense most rigorous, had imported a legal obligation, we are taught, by supreme judical authoritie (in the cases of [[Beverley v. Rennolds|Beverley against Reynolds]], and of [[Dawson v. Winslow|Dawson against Winslow]] that awards contravening principles of equitie, no less than principles of law, may be rescinded.

The arbitral sentence was contrarie to law too.

The contract between Richard Morris, on behalf of the owners of the mill, and David Ross ws what is called synallagmatic, that is reciprocal. ''Labeo definit contractum autem ultro citroque obligationem quod graeci _______ vocant: veluti emptinonem, venditionem, locationem, conductionem, societatem, Digest,' lib' L' tit' xvi. l' xix. that is, the contract was on both sides obligatorie. Richard Overton and Elizabeth Overton owners of a mill THEN, theretofore, erected were obliged to permit David Ross to work it, for his own benefit, during seven years, and he was obligated, to pay rent, and, at expiration of that term, to deliver THE SAID MILL IN TENENTABLE REPAIR.

These obligations and the rights correspondent were altern, were causes and effects each of other.

David Ross, so long as he could work the mill ERECTED THEN, mill which had been ERECTED BEFORE, was for that<div align="declared">cause,</div>
</blockquote>

===Page 21===
<blockquote>
cause, obliged to pay, and Richard Overton and Elizabeth Overton had a right to demand the effect of that cause, rent; and Richard Overton and Elizabeth Overton so long as David Ross paid rent, were obliged for the cause, to permit him to work, and he had a right to work, the mill, and they had a right to the rent, the effects of those causes. The rights and obligations of the parities were synchronous, were equal in duration: whilst the mill remained, and could be worked, the lessors had a right to rent; but when the mill had vanished, when a divulsion, a dislocation, a dissipation, of its parts were such that a reunion of those parts, if they could have been found, was impracticable; when the mill existed not otherwise than in fragments, partlie floating on the surface and partlie sunk to the bottom of the James, Chesapeake, or Atlantic, the right to rent ceased.

David Ross by his agreement, obliged himself to pay rents for a mill THEN erected, a mill which might require repairs, during the term, not for a mill TO BE erected; obliged himself to deliver the SAID mill, that is the mill THEN erected, in tenentable REPAIR, not to deliver a NEW mill which might not require repairs during the term, in place of the OLD, if it should be totalie dilacerated.

And that an arbitral sentence, of which the authros appear to have misconceived the law,<div align="declared">may</div>
</blockquote>
===Page 22===
<blockquote>
may by this court be abrogated, is supposed to have been admitted universalie.

Finalie, the sentence, pronounced ''partibus absentibus'' when the hparties were absent, ''imo partibus inauditis'' when the hparties were not heard, was for that reason a nullitie, surelie no proof is required of that.

The court therefore doth adjudge and decree, that the injunction, &c.' be perpetual, as it is hereby prounounced to be perpetual; and that the defendents Richard Overton, Elizabeth Overton and Samuel Overton reimburse to the plaintiff the costs expended by him in prosecuting this suit.
</blockquote>
==References==
<references/>

[[Category:Cases]]

Cary v. Buxton

2015-02-24T14:45:47Z

Cjhunter:

{{DISPLAYTITLE:''Cary v. Buxton''}}
[[File:WytheCaryVBuxton1852.jpg|link=Media:WytheDecisions1852CaryVBuxton.pdf|thumb|right|300px|First page of the opinion [[Media:WytheDecisions1852CaryVBuxton.pdf|''Cary v. Buxton'']], in [https://catalog.swem.wm.edu/law/Record/2099031 ''Decisions of Cases in Virginia by the High Court of Chancery, with Remarks upon Decrees by the Court of Appeals, Reversing Some of Those Decisions''], by George Wythe. 2nd ed. (Richmond: J. W. Randolph, 1852).]]
[[Media:WytheDecisions1852CaryVBuxton.pdf|''Cary v. Buxton'']], Wythe 183 (1793),<ref>George Wythe, ''[[Decisions of Cases in Virginia by the High Court of Chancery|Decisions of Cases in Virginia by the High Court of Chancery with Remarks upon Decrees by the Court of Appeals, Reversing Some of Those Decisions]],'' 2nd ed., ed. B.B. Minor (Richmond: J.W. Randolph, 1852), 183.</ref> involved a dispute over distributing an inheritance. In his decision, Wythe refers to several contemporary and classical sources for examples of amending or voiding a will to match the deceased's inferred intent.
__NOTOC__
==Background==
James Buxton owned land called "Old Plantation" in fee simple.<ref>Fee simple was the broadest property interest the law allowed. An owner in fee simple could transfer ownership to anyone he chose. If the owner died without leaving a will, the property in fee simple would go to the closest heir.</ref> In his will and testament, he gave Old Plantation to his eldest son John, along with several slaves.

James also owned two other properties, called Bacons and Jordans, that he inherited from Richard Bennett in fee tail.<ref>Ownership in fee tail can only be inherited by specific descendants, and ends when its current owner dies without qualifying heirs.</ref> A later clause in James's will awarded Bacons to his son Thomas and Thomas's heirs, and gave Jordans to James's son William and William's heirs.

Another clause in James's will said that all the property he gave his sons, except for Josiah, was in fee tail. The will said that Josiah and Josiah's heirs would get the parts of the plantation that were given to any of James's sons who died without an heir.

Nathaniel Buxton, the defendant, was John's only child.

Miles Cary and his wife Grizzel<ref>Wythe did not explicity state the Carys' relationship to the Buxtons, but the best guess from reading the case is that Grizzel was either Thomas's or William's daughter.</ref> were the plaintiffs, along with Josiah. The Carys and Josiah inherited Thomas's and William's land rights.

Nathaniel had inherited Old Plantation and the slaves who went with it from John, and had recovered Bacons and Jordans from the Carys and Josiah.<ref>Wythe did not explain exactly how Nathaniel got the land from the plaintiffs, but from Wythe's statement that Nathaniel got Bacons and Jordans "by the testament of Richard Bennett", the most logical inference is that when Thomas and William died, Nathaniel convinced a court that the plaintiffs were not heirs eligible to receive the property in fee tail. If a court found that the plaintiffs were not eligible to receive Bacons and Jordans in fee tail, then either Nathaniel convinced the court that he was an eligible heir in fee tail, or that he would inherit the property by right of descent.</ref> The plaintiffs filed a bill with the High Court of Chancery saying that if Nathaniel wanted to keep Bacon and Jordans, the plaintiffs wanted the Chancery Court to force Nathaniel to give them Old Plantation and the slaves whom James left to John, and compensate them for the value of Bacons and Jordans.

Nathaniel answered that he had inherited Old Plantation by descent, making any language in James's will about inheriting by fee tail void. Nathaniel said he had the rights to Old Plantation, Bacons, and Jordans, regardless of whether by descent or in fee tail, but if he could only pick between the two gifts, he wanted to keep Bacons and Jordans. Nathaniel said that some of the slaves John inherited from James were dead, Nathaniel had sold one, and the rest escaped to the British during the Revolution.
==The Court's Decision==
On March 2, 1793, the High Court of Chancery ordered Nathaniel to turn over Bacons and Jordans to the Carys and to Josiah. Wythe said that there is a presumption that James wanted the inheritance split among his heirs. Had James known that John's heirs would eventually also get hold of the inheritance James left for Thomas and William, Wythe argued, James would have found some way for Thomas's and William's heirs to be compensated from John's inheritance. Wythe amended James Buxton's testament so that Thomas and William and their heirs inherited "Old Plantation" in fee simple.

Wythe cited several examples from contemporary and classical sources of situations in which similar amendments to testaments were made to conform to the deceased's presumed wishes, and situations in which testaments were completely voided if they were found contrary to the deceased's presumed wishes. Among the sources Wythe referred to were [[Corpus Juris Civilis|the Digest of Justinian and the Institutes of Justinian]], [[M. Fabii Quinctiliani de Institutione Oratoria|Quintilian]], [[M.T. Ciceronis Orationes Quaedam Selectae|Cicero's oratories]], [[Reports of Cases in Equity|Gilbert's Reports of Cases in Equity]], [[Wythe's Greek and Latin Classics|Valerius Maximus]], and Lord Home's [[Principles of Equity]].

The Chancery Court ordered Nathaniel to turn over one half of Old Plantation to the Carys, and the other half to Josiah. The Court also ordered Nathaniel to turn over the remaining slaves from the inheritance to the plaintiffs, and to account for the slaves John had inherited as well as the rents and profits since December 31, 1770, from Old Plantation, Bacons, and Jordans.

==Works Cited or Referenced by Wythe==
===Justinian's ''Digest''===
Quotes in Wythe's opinion:
<blockquote>
<tt><span style="color: #006600;">''Si ita scriptum sit: si filius mihi natus fuerit, ex besse heres esto: ex reliqua parte uxor mea heres esto. si vero filia mihi nata fuerit, ex triente heres esto: ex reliqua parte uxor heres esto, et filius et filia nati essent, dicendum est assem distribuendum esse in septem partes, ut ex his filius quattuor, uxor duas, filia unam partem habeat: ita enim secundum voluntatem testantis filius altero tanto amplius habebit quam uxor, item uxor altero tanto amplius quam filia: licet enim suptili iuris regulae conveniebat ruptum fieri testamentum, attamen cum ex utroque nato testator voluerit uxorem aliquid habere, ideo ad huiusmodi sententiam humanitate suggerente decursum est, quod etiam Juventio Celso apertissime placuit.'' Dig. lib. XXVIII. tit. II. 1. 13.</span></tt> Translation: ''If someone has written thus: ‘If a son should be born to me, he will be heir of two-thirds [of my estate]: my wife will be the heir of the left-over portion. But if a daughter is born to me, she will be heir of one-third: my wife will be the heir of the left-over portion.’ If both a son and daughter are born, it must be stated that the whole is to be divided into seven parts, so that from these, the son shall have four, the wife two and the daughter one; for in this way, according to the wishes of the testator, the son will have two times more than the wife, likewise the wife will have two time more than the daughter; for although by the literal rule of the law, it could be held that the will was made broken, nevertheless, because the testator wanted his wife to have something no matter which child was born, therefore, with human decency suggesting towards this opinion, it is decided, that which was also clearly pleasing to Juventius Celsus.''<ref>Wythe, ''Decisions of Cases,'' 184-85.</ref></blockquote>

<blockquote>
<tt><span style="color: #006600;">''Clemens Patronus testamento caverat, ut, si sibi filius natus fuisset, heres esset, si duo filii, ex aequis partibus heredes heres essent, si duae filiae, similiter: si filius et filia, filio duas partes, filiae tertiam dederat. duobus filiis et filia natis quaerebatur, quemadmodum in proposita specie partes faciemus, cum filii debeant pares esse vel etiam singuli duplo plus quam soror accipere? quinque igitur partes fieri oportet, ut ex his binas masculi, unam foemina accipiat.'' Dig. lib. XXVIII tit. V. 1. 81.</span></tt> Translation: ''Clemens Patronus stipulated in his will, that, if a son should be born to him, he would be his heir; if he had two sons, they would be heirs of equal portions of the estate; likewise, if he has two daughters. If he has a son and daughter, he bestowed two thirds to the son and one to the daughter. With two sons and a daughter having been born it was asked how we should make divisions in the proposed case, since the sons’ [parts] ought to be equal and also twice more than what their sister receives. Therefore, it is proper that five portions be made, so that from these, the sons receive two and the daughter one.''<ref>Ibid., 185.</ref></blockquote>

<blockquote>
<tt><span style="color: #006600;">''Pactumeius Androsthenes Pactumeiam Magnam filiam Pactumeii Magni ex asse heredem instituerat, eique patrem eius substituerat. Pactumeio Magno occiso et rumore perlato, quasi filia quoque eius mortua, mutavit testamentum Noviumque Rufum heredem instituit hac praefatione: quia heredes, quos volui habere mihi contingere non potui, Novius Rufus heres esto. pactumeia magna supplicavit imperatores nostros et cognitione suscepta, licet modus institutioni contineretur, quia falsus non solet obesse, tamen ex voluntate testantis putavit imperator ei subveniendum. igitur pronuntiavit hereditatem ad magnam pertinere, sed legata ex posteriore testamento eam praestare debere, proinde atque si in posterioribus tabulis ipsa fuisset heres scripta.'' Dig. lib. XXVIII. tit. V. 1. 92.</span></tt> Translation: ''Pactumeius Androsthenes established Pactumeia Magna daughter of Pactumeius Magnus, heir of his whole estate and substituted her father for her. With Pactumeius Magnus killed and the rumor being spread, as if his daughter was also dead, he changed his will and appointed Novius Rufus heir with this preface: "because I am unable to grant for myself the heirs, whom I wished to have, Novius Rufus shall be my heir." Pactumeia Magna petitioned our emperors and with an inquiry having been undertaken, it is permitted that the manner be contained for instruction, because such false things are not accustomed to being a nuisance, nonetheless the emperor thought according the wishes of the testator he ought to come to her aid. Therefore, he pronounced that the inheritance belonged to Magna, but she ought to make good the legacy from the latter will, in the same manner as if she herself was the heir written on the latter document.''<ref>Ibid., 186.</ref></blockquote>

<blockquote>
<tt><span style="color: #006600;">''[T]estamentum aut non iure factum dicitur, ubi sollemnia iuris defuerunt: aut nullius esse momenti, cum filius qui fuit in patris potestate praeteritus est.T]estamentum aut non iure factum dicitur, ubi sollemnia iuris defuerunt: aut nullius esse momenti, cum filius qui fuit in patris potestate praeteritus est.'' Dig. lib. XXVIII. tit. III. 1. 1.</span></tt> Translation: ''Either a will is not called executed according to the law, when the formalities of the law were neglected: or to be of no importance, when a son who was in the power of his father is passed over.''<ref>Ibid.</ref></blockquote>

For these quotes, Wythe most likely used his copy of the ''[[Corpus Juris Civilis]]'' which includes the ''Digest of Justinian''.

===Justinian's ''Institutes''===
Quotation in Wythe's opinion:
<blockquote>
<tt><span style="color: #006600;">''Testamentum dicitur nullius esse momenti, cum filius, qui fuit in patris potestate, praeteritus est.'' Dig. lib. XXVIII. tit. III. 1. 1.</span></tt> Translation: ''At that time, the will is of no importance, when the son, who was under his father’s power, is disinherited.''<ref>Ibid., 186.</ref></blockquote>

===Cicero's ''On the Orator''===
Quotes in Wythe's opinion:
<blockquote>
<tt><span style="color: #006600;">''De militis morte, cum domum falsus ab exercitu nuntius venisset, et pater ejus, re credita, testamentum mutasset, et quem ei visum esset, fecisset heredem, essetque ipse mortuus: res delta est ad centumviros, cum miles domnum revenisseit, egissetque lege in herefitatem paternam. nempe in ea causa quaesitum est de jure civili, possetne paternorum bonorum exheres esse filius, quem pater testa mento neque heredem, neque exheredem, scripsset nominatum?'' Cicero de oratore, lib. 1. c. 38.</span></tt> Translation: ''The soldier, of whose death a false report having been brought home from the army, and his father, through giving credit to that report, having altered his will, and appointed another person, whom he thought proper, to be his heir, and having then died himself, the affair, when the soldier returned home, and instituted a suit for his paternal inheritance, came on to be heard before the centumviri? The point assuredly in that case was a question of civil law, whether a son could be disinherited of his father’s possessions, whom the father neither appointed his heir by will, nor disinherited by name?''<ref>Ibid., 185. Translation: [http://pages.pomona.edu/~cmc24747/sources/cic_web/de_or_1.htm J.S. Watson]</ref></blockquote>

<blockquote>
<tt><span style="color: #006600;">''Num quis eo testamento, quod paterfamilias ante fecit quam ei filius natus est, hereditatem petit? nemo: quia constat, agnascendo rumpi testmentum: ergo in hoc genere juris judicia nulla sunt.'' Cicero de oratore, lib. 1. c. 57.</span></tt> Translation: ''Surely no one would seek an inheritance from a will which the paterfamilias made before a son was born to him? No one would: because it is agreed, by the birth, the will is broken. Therefore in this type of law, there are no legal actions.''<ref>Ibid., 186.</ref></blockquote>

===Quintilian's ''Institutes of Oratory''===
Quotation in Wythe's opinion:
<blockquote>
<tt><span style="color: #006600;">''Curius substitutus heres erat, si posthumus ante tutelae suae annos decessisset. non est natus. propinqui bona sibi vendicabant. quis dubitaret, quin ea voluntas fuisset testantis. ut is non nato filio heres esset, qui mortuo? sed hoc non scripserat.'' Quinctil. de institut. orator. lib. VII. c. VI.</span></tt> Translation: (Wythe has added the name “Curius” at the beginning of this quote.) ''Curius was made an alternative heir, if a posthumous son died before the years of his tutelage. No such son was born, and a relative was selling the goods for himself. Who could doubt that it was the will of the testator, that with no son being born, the heir would be the same person who would be heir with the son being dead? But he had not written this.''<ref>Ibid., 184.</ref></blockquote>

===Valerius Maximus's ''Nine Books of Memorable Deeds and Sayings''===
Quotation in Wythe's opinion:
<blockquote>
<tt><span style="color: #006600;">Valerius Maximus, lib. 7. c.7, reports that ''adolscens, omnibus, non solum consiliis sed etiam, sententis superior decessit.''</span></tt> Translation: This passage refers to the case of a young man, who was falsely reported dead in war, so that his father omitted him from his will. As a consequence, the son has to argue for recognition of his heritage (and is successful).<ref>Ibid., 186.</ref></blockquote>
==References==
<references/>

[[Category:Cases]]

Cary v. Buxton

2015-02-24T14:41:39Z

Cjhunter:

{{DISPLAYTITLE:''Cary v. Buxton''}}
[[File:WytheCaryVBuxton1852.jpg|link=Media:WytheDecisions1852CaryVBuxton.pdf|thumb|right|300px|First page of the opinion [[Media:WytheDecisions1852CaryVBuxton.pdf|''Cary v. Buxton'']], in [https://catalog.swem.wm.edu/law/Record/2099031 ''Decisions of Cases in Virginia by the High Court of Chancery, with Remarks upon Decrees by the Court of Appeals, Reversing Some of Those Decisions''], by George Wythe. 2nd ed. (Richmond: J. W. Randolph, 1852).]]
[[Media:WytheDecisions1852CaryVBuxton.pdf|''Cary v. Buxton'']], Wythe 183 (1793),<ref>George Wythe, ''[[Decisions of Cases in Virginia by the High Court of Chancery|Decisions of Cases in Virginia by the High Court of Chancery with Remarks upon Decrees by the Court of Appeals, Reversing Some of Those Decisions]],'' 2nd ed., ed. B.B. Minor (Richmond: J.W. Randolph, 1852), 183.</ref> involved a dispute over distributing an inheritance. In his decision, Wythe refers to several contemporary and classical sources for examples of amending or voiding a will to match the deceased's inferred intent.
__NOTOC__
==Background==
James Buxton owned land called "Old Plantation" in fee simple.<ref>Fee simple was the broadest property interest the law allowed. An owner in fee simple could transfer ownership to anyone he chose. If the owner died without leaving a will, the property in fee simple would go to the closest heir.</ref> In his will and testament, he gave Old Plantation to his eldest son John, along with several slaves.

James also owned two other properties, called Bacons and Jordans, that he inherited from Richard Bennett in fee tail.<ref>Ownership in fee tail can only be inherited by specific descendants, and ends when its current owner dies without qualifying heirs.</ref> A later clause in James's will awarded Bacons to his son Thomas and Thomas's heirs, and gave Jordans to James's son William and William's heirs.

Another clause in James's will said that all the property he gave his sons, except for Josiah, was in fee tail. The will said that Josiah and Josiah's heirs would get the parts of the plantation that were given to any of James's sons who died without an heir.

Nathaniel Buxton, the defendant, was John's only child.

Miles Cary and his wife Grizzel<ref>Wythe did not explicity state the Carys' relationship to the Buxtons, but the best guess from reading the case is that Grizzel was either Thomas's or William's daughter.</ref> were the plaintiffs, along with Josiah. The Carys and Josiah inherited Thomas's and William's land rights.

Nathaniel had inherited Old Plantation and the slaves who went with it from John, and had recovered Bacons and Jordans from the Carys and Josiah.<ref>Wythe did not explain exactly how Nathaniel got the land from the plaintiffs, but from Wythe's statement that Nathaniel got Bacons and Jordans "by the testament of Richard Bennett", the most logical inference is that when Thomas and William died, Nathaniel convinced a court that the plaintiffs were not heirs eligible to receive the property in fee tail. If a court found that the plaintiffs were not eligible to receive Bacons and Jordans in fee tail, then either Nathaniel convinced the court that he was an eligible heir in fee tail, or that he would inherit the property by right of descent.</ref> The plaintiffs filed a bill with the High Court of Chancery saying that if Nathaniel wanted to keep Bacon and Jordans, the plaintiffs wanted the Chancery Court to force Nathaniel to give them Old Plantation and the slaves whom James left to John, and compensate them for the value of Bacons and Jordans.

Nathaniel answered that he had inherited Old Plantation by descent, making any language in James's will about inheriting by fee tail void. Nathaniel said he had the rights to Old Plantation, Bacons, and Jordans, regardless of whether by descent or in fee tail, but if he could only pick between the two gifts, he wanted to keep Bacons and Jordans. Nathaniel said that some of the slaves John inherited from James were dead, Nathaniel had sold one, and the rest escaped to the British during the Revolution.
==The Court's Decision==
On March 2, 1793, the High Court of Chancery ordered Nathaniel to turn over Bacons and Jordans to the Carys and to Josiah. Wythe said that there is a presumption that James wanted the inheritance split among his heirs. Had James known that John's heirs would eventually also get hold of the inheritance James left for Thomas and William, Wythe argued, James would have found some way for Thomas's and William's heirs to be compensated from John's inheritance. Wythe amended James Buxton's testament so that Thomas and William and their heirs inherited "Old Plantation" in fee simple.

Wythe cited several examples from contemporary and classical sources of situations in which similar amendments to testaments were made to conform to the deceased's presumed wishes, and situations in which testaments were completely voided if they were found contrary to the deceased's presumed wishes. Among the sources Wythe referred to were [[Corpus Juris Civilis|the Digest of Justinian and the Institutes of Justinian]], [[M. Fabii Quinctiliani de Institutione Oratoria|Quintilian]], [[M.T. Ciceronis Orationes Quaedam Selectae|Cicero's oratories]], [[Reports of Cases in Equity|Gilbert's Reports of Cases in Equity]], [[Wythe's Greek and Latin Classics|Valerius Maximus]], and Lord Home's [[Principles of Equity]].

The Chancery Court ordered Nathaniel to turn over one half of Old Plantation to the Carys, and the other half to Josiah. The Court also ordered Nathaniel to turn over the remaining slaves from the inheritance to the plaintiffs, and to account for the slaves John had inherited as well as the rents and profits since December 31, 1770, from Old Plantation, Bacons, and Jordans.

==Works Cited or Referenced by Wythe==
===Justinian's ''Digest''===
Quotes in Wythe's opinion:
<blockquote>
<tt><span style="color: #006600;">''Si ita scriptum sit: si filius mihi natus fuerit, ex besse heres esto: ex reliqua parte uxor mea heres esto. si vero filia mihi nata fuerit, ex triente heres esto: ex reliqua parte uxor heres esto, et filius et filia nati essent, dicendum est assem distribuendum esse in septem partes, ut ex his filius quattuor, uxor duas, filia unam partem habeat: ita enim secundum voluntatem testantis filius altero tanto amplius habebit quam uxor, item uxor altero tanto amplius quam filia: licet enim suptili iuris regulae conveniebat ruptum fieri testamentum, attamen cum ex utroque nato testator voluerit uxorem aliquid habere, ideo ad huiusmodi sententiam humanitate suggerente decursum est, quod etiam Juventio Celso apertissime placuit.'' Dig. lib. XXVIII. tit. II. 1. 13.</span></tt> Translation: ''If someone has written thus: ‘If a son should be born to me, he will be heir of two-thirds [of my estate]: my wife will be the heir of the left-over portion. But if a daughter is born to me, she will be heir of one-third: my wife will be the heir of the left-over portion.’ If both a son and daughter are born, it must be stated that the whole is to be divided into seven parts, so that from these, the son shall have four, the wife two and the daughter one; for in this way, according to the wishes of the testator, the son will have two times more than the wife, likewise the wife will have two time more than the daughter; for although by the literal rule of the law, it could be held that the will was made broken, nevertheless, because the testator wanted his wife to have something no matter which child was born, therefore, with human decency suggesting towards this opinion, it is decided, that which was also clearly pleasing to Juventius Celsus.''<ref>Wythe, ''Decisions of Case,'' 184-85.</ref></blockquote>

<blockquote>
<tt><span style="color: #006600;">''Clemens Patronus testamento caverat, ut, si sibi filius natus fuisset, heres esset, si duo filii, ex aequis partibus heredes heres essent, si duae filiae, similiter: si filius et filia, filio duas partes, filiae tertiam dederat. duobus filiis et filia natis quaerebatur, quemadmodum in proposita specie partes faciemus, cum filii debeant pares esse vel etiam singuli duplo plus quam soror accipere? quinque igitur partes fieri oportet, ut ex his binas masculi, unam foemina accipiat.'' Dig. lib. XXVIII tit. V. 1. 81.</span></tt> Translation: ''Clemens Patronus stipulated in his will, that, if a son should be born to him, he would be his heir; if he had two sons, they would be heirs of equal portions of the estate; likewise, if he has two daughters. If he has a son and daughter, he bestowed two thirds to the son and one to the daughter. With two sons and a daughter having been born it was asked how we should make divisions in the proposed case, since the sons’ [parts] ought to be equal and also twice more than what their sister receives. Therefore, it is proper that five portions be made, so that from these, the sons receive two and the daughter one.''<ref>Ibid., 185.</ref></blockquote>

<blockquote>
<tt><span style="color: #006600;">''Pactumeius Androsthenes Pactumeiam Magnam filiam Pactumeii Magni ex asse heredem instituerat, eique patrem eius substituerat. Pactumeio Magno occiso et rumore perlato, quasi filia quoque eius mortua, mutavit testamentum Noviumque Rufum heredem instituit hac praefatione: quia heredes, quos volui habere mihi contingere non potui, Novius Rufus heres esto. pactumeia magna supplicavit imperatores nostros et cognitione suscepta, licet modus institutioni contineretur, quia falsus non solet obesse, tamen ex voluntate testantis putavit imperator ei subveniendum. igitur pronuntiavit hereditatem ad magnam pertinere, sed legata ex posteriore testamento eam praestare debere, proinde atque si in posterioribus tabulis ipsa fuisset heres scripta.'' Dig. lib. XXVIII. tit. V. 1. 92.</span></tt> Translation: ''Pactumeius Androsthenes established Pactumeia Magna daughter of Pactumeius Magnus, heir of his whole estate and substituted her father for her. With Pactumeius Magnus killed and the rumor being spread, as if his daughter was also dead, he changed his will and appointed Novius Rufus heir with this preface: "because I am unable to grant for myself the heirs, whom I wished to have, Novius Rufus shall be my heir." Pactumeia Magna petitioned our emperors and with an inquiry having been undertaken, it is permitted that the manner be contained for instruction, because such false things are not accustomed to being a nuisance, nonetheless the emperor thought according the wishes of the testator he ought to come to her aid. Therefore, he pronounced that the inheritance belonged to Magna, but she ought to make good the legacy from the latter will, in the same manner as if she herself was the heir written on the latter document.''<ref>Ibid., 186.</ref></blockquote>

<blockquote>
<tt><span style="color: #006600;">''[T]estamentum aut non iure factum dicitur, ubi sollemnia iuris defuerunt: aut nullius esse momenti, cum filius qui fuit in patris potestate praeteritus est.T]estamentum aut non iure factum dicitur, ubi sollemnia iuris defuerunt: aut nullius esse momenti, cum filius qui fuit in patris potestate praeteritus est.'' Dig. lib. XXVIII. tit. III. 1. 1.</span></tt> Translation: ''Either a will is not called executed according to the law, when the formalities of the law were neglected: or to be of no importance, when a son who was in the power of his father is passed over.''<ref>Ibid.</ref></blockquote>

For these quotes, Wythe most likely used his copy of the ''[[Corpus Juris Civilis]]'' which includes the ''Digest of Justinian''.

===Justinian's ''Institutes''===
Quotation in Wythe's opinion:
<blockquote>
<tt><span style="color: #006600;">''Testamentum dicitur nullius esse momenti, cum filius, qui fuit in patris potestate, praeteritus est.'' Dig. lib. XXVIII. tit. III. 1. 1.</span></tt> Translation: ''At that time, the will is of no importance, when the son, who was under his father’s power, is disinherited.''<ref>Ibid., 186.</ref></blockquote>

===Cicero's ''On the Orator''===
Quotes in Wythe's opinion:
<blockquote>
<tt><span style="color: #006600;">''De militis morte, cum domum falsus ab exercitu nuntius venisset, et pater ejus, re credita, testamentum mutasset, et quem ei visum esset, fecisset heredem, essetque ipse mortuus: res delta est ad centumviros, cum miles domnum revenisseit, egissetque lege in herefitatem paternam. nempe in ea causa quaesitum est de jure civili, possetne paternorum bonorum exheres esse filius, quem pater testa mento neque heredem, neque exheredem, scripsset nominatum?'' Cicero de oratore, lib. 1. c. 38.</span></tt> Translation: ''The soldier, of whose death a false report having been brought home from the army, and his father, through giving credit to that report, having altered his will, and appointed another person, whom he thought proper, to be his heir, and having then died himself, the affair, when the soldier returned home, and instituted a suit for his paternal inheritance, came on to be heard before the centumviri? The point assuredly in that case was a question of civil law, whether a son could be disinherited of his father’s possessions, whom the father neither appointed his heir by will, nor disinherited by name?''<ref>Ibid., 185. Translation: [http://pages.pomona.edu/~cmc24747/sources/cic_web/de_or_1.htm J.S. Watson]</ref></blockquote>

<blockquote>
<tt><span style="color: #006600;">''Num quis eo testamento, quod paterfamilias ante fecit quam ei filius natus est, hereditatem petit? nemo: quia constat, agnascendo rumpi testmentum: ergo in hoc genere juris judicia nulla sunt.'' Cicero de oratore, lib. 1. c. 57.</span></tt> Translation: ''Surely no one would seek an inheritance from a will which the paterfamilias made before a son was born to him? No one would: because it is agreed, by the birth, the will is broken. Therefore in this type of law, there are no legal actions.''<ref>Ibid., 186.</ref></blockquote>

===Quintilian's ''Institutes of Oratory''===
Quotation in Wythe's opinion:
<blockquote>
<tt><span style="color: #006600;">''Curius substitutus heres erat, si posthumus ante tutelae suae annos decessisset. non est natus. propinqui bona sibi vendicabant. quis dubitaret, quin ea voluntas fuisset testantis. ut is non nato filio heres esset, qui mortuo? sed hoc non scripserat.'' Quinctil. de institut. orator. lib. VII. c. VI.</span></tt> Translation: (Wythe has added the name “Curius” at the beginning of this quote.) ''Curius was made an alternative heir, if a posthumous son died before the years of his tutelage. No such son was born, and a relative was selling the goods for himself. Who could doubt that it was the will of the testator, that with no son being born, the heir would be the same person who would be heir with the son being dead? But he had not written this.''<ref>Ibid., 184.</ref></blockquote>

===Valerius Maximus's ''Nine Books of Memorable Deeds and Sayings''===
Quotation in Wythe's opinion:
<blockquote>
<tt><span style="color: #006600;">Valerius Maximus, lib. 7. c.7, reports that ''adolscens, omnibus, non solum consiliis sed etiam, sententis superior decessit.''</span></tt> Translation: This passage refers to the case of a young man, who was falsely reported dead in war, so that his father omitted him from his will. As a consequence, the son has to argue for recognition of his heritage (and is successful).<ref>Ibid., 186.</ref></blockquote>
==References==
<references/>

[[Category:Cases]]

Cary v. Buxton

2015-02-24T14:38:50Z

Cjhunter:

{{DISPLAYTITLE:''Cary v. Buxton''}}
[[File:WytheCaryVBuxton1852.jpg|link=Media:WytheDecisions1852CaryVBuxton.pdf|thumb|right|300px|First page of the opinion [[Media:WytheDecisions1852CaryVBuxton.pdf|''Cary v. Buxton'']], in [https://catalog.swem.wm.edu/law/Record/2099031 ''Decisions of Cases in Virginia by the High Court of Chancery, with Remarks upon Decrees by the Court of Appeals, Reversing Some of Those Decisions''], by George Wythe. 2nd ed. (Richmond: J. W. Randolph, 1852).]]
[[Media:WytheDecisions1852CaryVBuxton.pdf|''Cary v. Buxton'']], Wythe 183 (1793),<ref>George Wythe, ''[[Decisions of Cases in Virginia by the High Court of Chancery|Decisions of Cases in Virginia by the High Court of Chancery with Remarks upon Decrees by the Court of Appeals, Reversing Some of Those Decisions]],'' 2nd ed., ed. B.B. Minor (Richmond: J.W. Randolph, 1852), 183.</ref> involved a dispute over distributing an inheritance. In his decision, Wythe refers to several contemporary and classical sources for examples of amending or voiding a will to match the deceased's inferred intent.
__NOTOC__
==Background==
James Buxton owned land called "Old Plantation" in fee simple.<ref>Fee simple was the broadest property interest the law allowed. An owner in fee simple could transfer ownership to anyone he chose. If the owner died without leaving a will, the property in fee simple would go to the closest heir.</ref> In his will and testament, he gave Old Plantation to his eldest son John, along with several slaves.

James also owned two other properties, called Bacons and Jordans, that he inherited from Richard Bennett in fee tail.<ref>Ownership in fee tail can only be inherited by specific descendants, and ends when its current owner dies without qualifying heirs.</ref> A later clause in James's will awarded Bacons to his son Thomas and Thomas's heirs, and gave Jordans to James's son William and William's heirs.

Another clause in James's will said that all the property he gave his sons, except for Josiah, was in fee tail. The will said that Josiah and Josiah's heirs would get the parts of the plantation that were given to any of James's sons who died without an heir.

Nathaniel Buxton, the defendant, was John's only child.

Miles Cary and his wife Grizzel<ref>Wythe did not explicity state the Carys' relationship to the Buxtons, but the best guess from reading the case is that Grizzel was either Thomas's or William's daughter.</ref> were the plaintiffs, along with Josiah. The Carys and Josiah inherited Thomas's and William's land rights.

Nathaniel had inherited Old Plantation and the slaves who went with it from John, and had recovered Bacons and Jordans from the Carys and Josiah.<ref>Wythe did not explain exactly how Nathaniel got the land from the plaintiffs, but from Wythe's statement that Nathaniel got Bacons and Jordans "by the testament of Richard Bennett", the most logical inference is that when Thomas and William died, Nathaniel convinced a court that the plaintiffs were not heirs eligible to receive the property in fee tail. If a court found that the plaintiffs were not eligible to receive Bacons and Jordans in fee tail, then either Nathaniel convinced the court that he was an eligible heir in fee tail, or that he would inherit the property by right of descent.</ref> The plaintiffs filed a bill with the High Court of Chancery saying that if Nathaniel wanted to keep Bacon and Jordans, the plaintiffs wanted the Chancery Court to force Nathaniel to give them Old Plantation and the slaves whom James left to John, and compensate them for the value of Bacons and Jordans.

Nathaniel answered that he had inherited Old Plantation by descent, making any language in James's will about inheriting by fee tail void. Nathaniel said he had the rights to Old Plantation, Bacons, and Jordans, regardless of whether by descent or in fee tail, but if he could only pick between the two gifts, he wanted to keep Bacons and Jordans. Nathaniel said that some of the slaves John inherited from James were dead, Nathaniel had sold one, and the rest escaped to the British during the Revolution.
==The Court's Decision==
On March 2, 1793, the High Court of Chancery ordered Nathaniel to turn over Bacons and Jordans to the Carys and to Josiah. Wythe said that there is a presumption that James wanted the inheritance split among his heirs. Had James known that John's heirs would eventually also get hold of the inheritance James left for Thomas and William, Wythe argued, James would have found some way for Thomas's and William's heirs to be compensated from John's inheritance. Wythe amended James Buxton's testament so that Thomas and William and their heirs inherited "Old Plantation" in fee simple.

Wythe cited several examples from contemporary and classical sources of situations in which similar amendments to testaments were made to conform to the deceased's presumed wishes, and situations in which testaments were completely voided if they were found contrary to the deceased's presumed wishes. Among the sources Wythe referred to were [[Corpus Juris Civilis|the Digest of Justinian and the Institutes of Justinian]], [[M. Fabii Quinctiliani de Institutione Oratoria|Quintilian]], [[M.T. Ciceronis Orationes Quaedam Selectae|Cicero's oratories]], [[Reports of Cases in Equity|Gilbert's Reports of Cases in Equity]], [[Wythe's Greek and Latin Classics|Valerius Maximus]], and Lord Home's [[Principles of Equity]].

The Chancery Court ordered Nathaniel to turn over one half of Old Plantation to the Carys, and the other half to Josiah. The Court also ordered Nathaniel to turn over the remaining slaves from the inheritance to the plaintiffs, and to account for the slaves John had inherited as well as the rents and profits since December 31, 1770, from Old Plantation, Bacons, and Jordans.

==Works Cited or Referenced by Wythe==
===Justinian's ''Digest''===
Quotes in Wythe's opinion:
<blockquote>
<tt><span style="color: #006600;">''Si ita scriptum sit: si filius mihi natus fuerit, ex besse heres esto: ex reliqua parte uxor mea heres esto. si vero filia mihi nata fuerit, ex triente heres esto: ex reliqua parte uxor heres esto, et filius et filia nati essent, dicendum est assem distribuendum esse in septem partes, ut ex his filius quattuor, uxor duas, filia unam partem habeat: ita enim secundum voluntatem testantis filius altero tanto amplius habebit quam uxor, item uxor altero tanto amplius quam filia: licet enim suptili iuris regulae conveniebat ruptum fieri testamentum, attamen cum ex utroque nato testator voluerit uxorem aliquid habere, ideo ad huiusmodi sententiam humanitate suggerente decursum est, quod etiam Juventio Celso apertissime placuit.'' Dig. lib. XXVIII. tit. II. 1. 13.</span></tt> Translation: ''If someone has written thus: ‘If a son should be born to me, he will be heir of two-thirds [of my estate]: my wife will be the heir of the left-over portion. But if a daughter is born to me, she will be heir of one-third: my wife will be the heir of the left-over portion.’ If both a son and daughter are born, it must be stated that the whole is to be divided into seven parts, so that from these, the son shall have four, the wife two and the daughter one; for in this way, according to the wishes of the testator, the son will have two times more than the wife, likewise the wife will have two time more than the daughter; for although by the literal rule of the law, it could be held that the will was made broken, nevertheless, because the testator wanted his wife to have something no matter which child was born, therefore, with human decency suggesting towards this opinion, it is decided, that which was also clearly pleasing to Juventius Celsus.''<ref>Wythe 184-85.</ref></blockquote>

<blockquote>
<tt><span style="color: #006600;">''Clemens Patronus testamento caverat, ut, si sibi filius natus fuisset, heres esset, si duo filii, ex aequis partibus heredes heres essent, si duae filiae, similiter: si filius et filia, filio duas partes, filiae tertiam dederat. duobus filiis et filia natis quaerebatur, quemadmodum in proposita specie partes faciemus, cum filii debeant pares esse vel etiam singuli duplo plus quam soror accipere? quinque igitur partes fieri oportet, ut ex his binas masculi, unam foemina accipiat.'' Dig. lib. XXVIII tit. V. 1. 81.</span></tt> Translation: ''Clemens Patronus stipulated in his will, that, if a son should be born to him, he would be his heir; if he had two sons, they would be heirs of equal portions of the estate; likewise, if he has two daughters. If he has a son and daughter, he bestowed two thirds to the son and one to the daughter. With two sons and a daughter having been born it was asked how we should make divisions in the proposed case, since the sons’ [parts] ought to be equal and also twice more than what their sister receives. Therefore, it is proper that five portions be made, so that from these, the sons receive two and the daughter one.''<ref>Ibid 185.</ref></blockquote>

<blockquote>
<tt><span style="color: #006600;">''Pactumeius Androsthenes Pactumeiam Magnam filiam Pactumeii Magni ex asse heredem instituerat, eique patrem eius substituerat. Pactumeio Magno occiso et rumore perlato, quasi filia quoque eius mortua, mutavit testamentum Noviumque Rufum heredem instituit hac praefatione: quia heredes, quos volui habere mihi contingere non potui, Novius Rufus heres esto. pactumeia magna supplicavit imperatores nostros et cognitione suscepta, licet modus institutioni contineretur, quia falsus non solet obesse, tamen ex voluntate testantis putavit imperator ei subveniendum. igitur pronuntiavit hereditatem ad magnam pertinere, sed legata ex posteriore testamento eam praestare debere, proinde atque si in posterioribus tabulis ipsa fuisset heres scripta.'' Dig. lib. XXVIII. tit. V. 1. 92.</span></tt> Translation: ''Pactumeius Androsthenes established Pactumeia Magna daughter of Pactumeius Magnus, heir of his whole estate and substituted her father for her. With Pactumeius Magnus killed and the rumor being spread, as if his daughter was also dead, he changed his will and appointed Novius Rufus heir with this preface: "because I am unable to grant for myself the heirs, whom I wished to have, Novius Rufus shall be my heir." Pactumeia Magna petitioned our emperors and with an inquiry having been undertaken, it is permitted that the manner be contained for instruction, because such false things are not accustomed to being a nuisance, nonetheless the emperor thought according the wishes of the testator he ought to come to her aid. Therefore, he pronounced that the inheritance belonged to Magna, but she ought to make good the legacy from the latter will, in the same manner as if she herself was the heir written on the latter document.''<ref>Ibid 186.</ref></blockquote>

<blockquote>
<tt><span style="color: #006600;">''[T]estamentum aut non iure factum dicitur, ubi sollemnia iuris defuerunt: aut nullius esse momenti, cum filius qui fuit in patris potestate praeteritus est.T]estamentum aut non iure factum dicitur, ubi sollemnia iuris defuerunt: aut nullius esse momenti, cum filius qui fuit in patris potestate praeteritus est.'' Dig. lib. XXVIII. tit. III. 1. 1.</span></tt> Translation: ''Either a will is not called executed according to the law, when the formalities of the law were neglected: or to be of no importance, when a son who was in the power of his father is passed over.''<ref>Ibid.</ref></blockquote>

For these quotes, Wythe most likely used his copy of the ''[[Corpus Juris Civilis]]'' which includes the ''Digest of Justinian''.

===Justinian's ''Institutes''===
Quotation in Wythe's opinion:
<blockquote>
<tt><span style="color: #006600;">''Testamentum dicitur nullius esse momenti, cum filius, qui fuit in patris potestate, praeteritus est.'' Dig. lib. XXVIII. tit. III. 1. 1.</span></tt> Translation: ''At that time, the will is of no importance, when the son, who was under his father’s power, is disinherited.''<ref>Ibid 186.</ref></blockquote>

===Cicero's ''On the Orator''===
Quotes in Wythe's opinion:
<blockquote>
<tt><span style="color: #006600;">''De militis morte, cum domum falsus ab exercitu nuntius venisset, et pater ejus, re credita, testamentum mutasset, et quem ei visum esset, fecisset heredem, essetque ipse mortuus: res delta est ad centumviros, cum miles domnum revenisseit, egissetque lege in herefitatem paternam. nempe in ea causa quaesitum est de jure civili, possetne paternorum bonorum exheres esse filius, quem pater testa mento neque heredem, neque exheredem, scripsset nominatum?'' Cicero de oratore, lib. 1. c. 38.</span></tt> Translation: ''The soldier, of whose death a false report having been brought home from the army, and his father, through giving credit to that report, having altered his will, and appointed another person, whom he thought proper, to be his heir, and having then died himself, the affair, when the soldier returned home, and instituted a suit for his paternal inheritance, came on to be heard before the centumviri? The point assuredly in that case was a question of civil law, whether a son could be disinherited of his father’s possessions, whom the father neither appointed his heir by will, nor disinherited by name?''<ref>Ibid 185. Translation: [http://pages.pomona.edu/~cmc24747/sources/cic_web/de_or_1.htm J.S. Watson]</ref></blockquote>

<blockquote>
<tt><span style="color: #006600;">''Num quis eo testamento, quod paterfamilias ante fecit quam ei filius natus est, hereditatem petit? nemo: quia constat, agnascendo rumpi testmentum: ergo in hoc genere juris judicia nulla sunt.'' Cicero de oratore, lib. 1. c. 57.</span></tt> Translation: ''Surely no one would seek an inheritance from a will which the paterfamilias made before a son was born to him? No one would: because it is agreed, by the birth, the will is broken. Therefore in this type of law, there are no legal actions.''<ref>Ibid 186.</ref></blockquote>

===Quintilian's ''Institutes of Oratory''===
Quotation in Wythe's opinion:
<blockquote>
<tt><span style="color: #006600;">''Curius substitutus heres erat, si posthumus ante tutelae suae annos decessisset. non est natus. propinqui bona sibi vendicabant. quis dubitaret, quin ea voluntas fuisset testantis. ut is non nato filio heres esset, qui mortuo? sed hoc non scripserat.'' Quinctil. de institut. orator. lib. VII. c. VI.</span></tt> Translation: (Wythe has added the name “Curius” at the beginning of this quote.) ''Curius was made an alternative heir, if a posthumous son died before the years of his tutelage. No such son was born, and a relative was selling the goods for himself. Who could doubt that it was the will of the testator, that with no son being born, the heir would be the same person who would be heir with the son being dead? But he had not written this.''<ref>Ibid 184.</ref></blockquote>

===Valerius Maximus's ''Nine Books of Memorable Deeds and Sayings''===
Quotation in Wythe's opinion:
<blockquote>
<tt><span style="color: #006600;">Valerius Maximus, lib. 7. c.7, reports that ''adolscens, omnibus, non solum consiliis sed etiam, sententis superior decessit.''</span></tt> Translation: This passage refers to the case of a young man, who was falsely reported dead in war, so that his father omitted him from his will. As a consequence, the son has to argue for recognition of his heritage (and is successful).<ref>Ibid 186.</ref></blockquote>
==References==
<references/>

[[Category:Cases]]

Ars Transferendi Dominium, the Second Part

2015-02-24T14:19:54Z

Cjhunter:

{{DISPLAYTITLE:''Ars Transferendi Dominium, the Second Part''}}
<big>'' Ars Transferendi Dominium, the Second Part or, A Sure Law-Guide to the Conveyancer Consisting of Many Observations and Various Questions, with Their Resolutions, Relating to Feoffments, Grants, Fines, Common Recoveries, Exchanges, Releases, Confirmations, Attornments, Surrenders, Bargains and Sales, and Devises''</big>
===by John Brydall===
__NOTOC__
{{NoBookInfoBox
|shorttitle=Ars Transferendi Dominium, the Second Part
|commontitle=
|vol=
|author=John Brydall
|editor=
|trans=
|publoc=London
|publisher=Atkyns
|year=1698
|edition=
|lang=
|set=
|pages=
|desc=
}}
London: Printed by the assigns of R. and E. Atkyns ... for Samuel Heyrick ... and Isaac Cleave ..., 1698.

John Brydall (Bridall) was born in Chatsworth, Devonshire in 1635 and lived at least until 1705(the last known date of his published work).<ref>Michael de L. Landon, "[http://www.oxforddnb.com/view/article/3800 Brydall, John (b. c.1635, d. in or after 1705?)]," ''Oxford Dictionary of National Biography'' (Oxford University Press, 2004- ), accessed December 6, 2013.</ref> He was the son of John Brydall who was also a lawyer and a Barrister at [https://en.wikipedia.org/wiki/Lincoln%27s_Inn Lincoln's Inn] (one of the four [https://en.wikipedia.org/wiki/Inns_of_Court Inns of Court] in London). John Brydall entered Queen's College in 1652 and graduated in 1655.<ref>John Richard Magrath, [http://books.google.com/books?id=sV1IAAAAYAAJ&pg=PA54&dq=Queens+college+john+brydall&hl=en&sa=X&ei=MeepUq3CI6y_sQTjkYDADA&ved=0CEwQ6AEwAg#v=onepage&q=Queens%20college%20john%20brydall&f=false ''The Queen's College Vol II 1646-1877''] (Oxford: Clarendon Press, 1921), 54.
</ref> Prior to graduating, he enrolled as a low ranking member at Lincoln's Inn and was considered the obvious choice to replace his father upon his stepping down.<ref>de L. Landon, "Brydall, John (b. c.1635, d. in or after 1705?)."</ref> At some point in his legal career, it appears that he acted as secretary to Sir Harbottle Grimston, Master of the Rolls.<ref>Magrath, ''The Queen's College'', 54.</ref> While one source indicates that by the time of his death he had authored thiry-six legal works, there seems to be some confusion between what he wrote and what his father may have written.<ref>de L. Landon, "Brydall, John (b. c.1635, d. in or after 1705?)"; Magrath, ''The Queen's College'', 54.</ref>

''Ars transferendi dominium: The second part. Or, a sure law-guide to the conveyancer, consisting of many observations and various questions, with their Resolutions; Relating To Feoffments, Grants, Fines, Common Recoveries, Exchanges, Releases, Confirmations, Attornments, Surrenders, Bargains and Sales, and Devises.'' By John Bridall of Lincolns Inn, Barrister. 1698.
This book was published in two parts, sometimes bound together, with both parts focusing on the legal issues involved in the transfer or conveyance of property.<ref>Unsigned review of [http://books.google.com/books?id=S_04AQAAMAAJ&pg=RA1-PA610#v=onepage&q&f=false ''Ars transferendi dominium''], by John Brydall, ''The Law Times'', May 23, 1896, 610-11.</ref> The book is broken into discussions of eleven different methods of conveyance of property. Each section begins with general definitions and discussion followed by Brydall's observations on the topic.<ref>Ibid.</ref> This portion of the book is followed by a section of questions and their resolutions starting with Feoffments. These questions are based on cases and are followed by answers in traditional Socratic method.<ref>Ibid.</ref>

==References==
<references />

==External Links==
See bookplate in: [https://books.google.com/books?id=jclFGwAACAAJ&dq=john+brydall+a+sure+law-guide+1698f+R.+and+E.+Atkyns Google Books]

==Evidence for Inclusion in Wythe's Library==

[[Category:Commercial Law]]
[[Category:Titles in Wythe's Library]]

Ars Transferendi Dominium, the Second Part

2015-02-24T14:18:33Z

Cjhunter:

{{DISPLAYTITLE:''Ars Transferendi Dominium, the Second Part''}}
<big>'' Ars Transferendi Dominium, the Second Part or, A Sure Law-Guide to the Conveyancer Consisting of Many Observations and Various Questions, with Their Resolutions, Relating to Feoffments, Grants, Fines, Common Recoveries, Exchanges, Releases, Confirmations, Attornments, Surrenders, Bargains and Sales, and Devises''</big>
===by John Brydall===
__NOTOC__
{{NoBookInfoBox
|shorttitle=Ars Transferendi Dominium, the Second Part
|commontitle=
|vol=
|author=John Brydall
|editor=
|trans=
|publoc=London
|publisher=Atkyns
|year=1698
|edition=
|lang=
|set=
|pages=
|desc=
}}
London: Printed by the assigns of R. and E. Atkyns ... for Samuel Heyrick ... and Isaac Cleave ..., 1698.

John Brydall (Bridall) was born in Chatsworth, Devonshire in 1635 and lived at least until 1705(the last known date of his published work).<ref>Michael de L. Landon, "[http://www.oxforddnb.com/view/article/3800 Brydall, John (b. c.1635, d. in or after 1705?)]," ''Oxford Dictionary of National Biography'' (Oxford University Press, 2004- ), accessed December 6, 2013.</ref> He was the son of John Brydall who was also a lawyer and a Barrister at [https://en.wikipedia.org/wiki/Lincoln%27s_Inn Lincoln's Inn] (one of the four [https://en.wikipedia.org/wiki/Inns_of_Court Inns of Court] in London). John Brydall entered Queen's College in 1652 and graduated in 1655.<ref>John Richard Magrath, [http://books.google.com/books?id=sV1IAAAAYAAJ&pg=PA54&dq=Queens+college+john+brydall&hl=en&sa=X&ei=MeepUq3CI6y_sQTjkYDADA&ved=0CEwQ6AEwAg#v=onepage&q=Queens%20college%20john%20brydall&f=false ''The Queen's College Vol II 1646-1877''] (Oxford: Clarendon Press, 1921), 54.
</ref> Prior to graduating, he enrolled as a low ranking member at Lincoln's Inn and was considered the obvious choice to replace his father upon his stepping down.<ref>de L. Landon, Brydall, John (b. c.1635, d. in or after 1705?).</ref> At some point in his legal career, it appears that he acted as secretary to Sir Harbottle Grimston, Master of the Rolls.<ref>Magrath, ''The Queen's College'', 54.</ref> While one source indicates that by the time of his death he had authored thiry-six legal works, there seems to be some confusion between what he wrote and what his father may have written.<ref>de L. Landon, Brydall, John (b. c.1635, d. in or after 1705?); Magrath, ''The Queen's College'', 54.</ref>

''Ars transferendi dominium: The second part. Or, a sure law-guide to the conveyancer, consisting of many observations and various questions, with their Resolutions; Relating To Feoffments, Grants, Fines, Common Recoveries, Exchanges, Releases, Confirmations, Attornments, Surrenders, Bargains and Sales, and Devises.'' By John Bridall of Lincolns Inn, Barrister. 1698.
This book was published in two parts, sometimes bound together, with both parts focusing on the legal issues involved in the transfer or conveyance of property.<ref>Unsigned review of [http://books.google.com/books?id=S_04AQAAMAAJ&pg=RA1-PA610#v=onepage&q&f=false ''Ars transferendi dominium''], by John Brydall, ''The Law Times'', May 23, 1896, 610-11.</ref> The book is broken into discussions of eleven different methods of conveyance of property. Each section begins with general definitions and discussion followed by Brydall's observations on the topic.<ref>Ibid.</ref> This portion of the book is followed by a section of questions and their resolutions starting with Feoffments. These questions are based on cases and are followed by answers in traditional Socratic method.<ref>Ibid.</ref>

==References==
<references />

==External Links==
See bookplate in: [https://books.google.com/books?id=jclFGwAACAAJ&dq=john+brydall+a+sure+law-guide+1698f+R.+and+E.+Atkyns Google Books]

==Evidence for Inclusion in Wythe's Library==

[[Category:Commercial Law]]
[[Category:Titles in Wythe's Library]]

Ars Transferendi Dominium, the Second Part

2015-02-24T14:17:43Z

Cjhunter:

{{DISPLAYTITLE:''Ars Transferendi Dominium, the Second Part''}}
<big>'' Ars Transferendi Dominium, the Second Part or, A Sure Law-Guide to the Conveyancer Consisting of Many Observations and Various Questions, with Their Resolutions, Relating to Feoffments, Grants, Fines, Common Recoveries, Exchanges, Releases, Confirmations, Attornments, Surrenders, Bargains and Sales, and Devises''</big>
===by John Brydall===
__NOTOC__
{{NoBookInfoBox
|shorttitle=Ars Transferendi Dominium, the Second Part
|commontitle=
|vol=
|author=John Brydall
|editor=
|trans=
|publoc=London
|publisher=Atkyns
|year=1698
|edition=
|lang=
|set=
|pages=
|desc=
}}
London: Printed by the assigns of R. and E. Atkyns ... for Samuel Heyrick ... and Isaac Cleave ..., 1698.

John Brydall (Bridall) was born in Chatsworth, Devonshire in 1635 and lived at least until 1705(the last known date of his published work).<ref>Michael de L. Landon, "[http://www.oxforddnb.com/view/article/3800 Brydall, John (b. c.1635, d. in or after 1705?)]," ''Oxford Dictionary of National Biography'' (Oxford University Press, 2004- ), accessed December 6, 2013.</ref> He was the son of John Brydall who was also a lawyer and a Barrister at [https://en.wikipedia.org/wiki/Lincoln%27s_Inn Lincoln's Inn] (one of the four [https://en.wikipedia.org/wiki/Inns_of_Court Inns of Court] in London). John Brydall entered Queen's College in 1652 and graduated in 1655.<ref>John Richard Magrath, [http://books.google.com/books?id=sV1IAAAAYAAJ&pg=PA54&dq=Queens+college+john+brydall&hl=en&sa=X&ei=MeepUq3CI6y_sQTjkYDADA&ved=0CEwQ6AEwAg#v=onepage&q=Queens%20college%20john%20brydall&f=false ''The Queen's College Vol II 1646-1877''] (Oxford: Clarendon Press, 1921), 54.
</ref> Prior to graduating, he enrolled as a low ranking member at Lincoln's Inn and was considered the obvious choice to replace his father upon his stepping down.<ref>de L. Landon, Brydall, John (b. c.1635, d. in or after 1705?).</ref> At some point in his legal career, it appears that he acted as secretary to Sir Harbottle Grimston, Master of the Rolls.<ref>Magrath, ''The Queen's College''.</ref> While one source indicates that by the time of his death he had authored thiry-six legal works, there seems to be some confusion between what he wrote and what his father may have written.<ref>de L. Landon, Brydall, John (b. c.1635, d. in or after 1705?); Magrath, ''The Queen's College''.</ref>

''Ars transferendi dominium: The second part. Or, a sure law-guide to the conveyancer, consisting of many observations and various questions, with their Resolutions; Relating To Feoffments, Grants, Fines, Common Recoveries, Exchanges, Releases, Confirmations, Attornments, Surrenders, Bargains and Sales, and Devises.'' By John Bridall of Lincolns Inn, Barrister. 1698.
This book was published in two parts, sometimes bound together, with both parts focusing on the legal issues involved in the transfer or conveyance of property.<ref>Unsigned review of [http://books.google.com/books?id=S_04AQAAMAAJ&pg=RA1-PA610#v=onepage&q&f=false ''Ars transferendi dominium''], by John Brydall, ''The Law Times'', May 23, 1896, 610-11.</ref> The book is broken into discussions of eleven different methods of conveyance of property. Each section begins with general definitions and discussion followed by Brydall's observations on the topic.<ref>Ibid.</ref> This portion of the book is followed by a section of questions and their resolutions starting with Feoffments. These questions are based on cases and are followed by answers in traditional Socratic method.<ref>Ibid.</ref>

==References==
<references />

==External Links==
See bookplate in: [https://books.google.com/books?id=jclFGwAACAAJ&dq=john+brydall+a+sure+law-guide+1698f+R.+and+E.+Atkyns Google Books]

==Evidence for Inclusion in Wythe's Library==

[[Category:Commercial Law]]
[[Category:Titles in Wythe's Library]]

Ars Transferendi Dominium, the Second Part

2015-02-24T14:13:20Z

Cjhunter:

{{DISPLAYTITLE:''Ars Transferendi Dominium, the Second Part''}}
<big>'' Ars Transferendi Dominium, the Second Part or, A Sure Law-Guide to the Conveyancer Consisting of Many Observations and Various Questions, with Their Resolutions, Relating to Feoffments, Grants, Fines, Common Recoveries, Exchanges, Releases, Confirmations, Attornments, Surrenders, Bargains and Sales, and Devises''</big>
===by John Brydall===
__NOTOC__
{{NoBookInfoBox
|shorttitle=Ars Transferendi Dominium, the Second Part
|commontitle=
|vol=
|author=John Brydall
|editor=
|trans=
|publoc=London
|publisher=Atkyns
|year=1698
|edition=
|lang=
|set=
|pages=
|desc=
}}
London: Printed by the assigns of R. and E. Atkyns ... for Samuel Heyrick ... and Isaac Cleave ..., 1698.

John Brydall (Bridall) was born in Chatsworth, Devonshire in 1635 and lived at least until 1705(the last known date of his published work).<ref>Michael de L. Landon, "[http://www.oxforddnb.com/view/article/3800 Brydall, John (b. c.1635, d. in or after 1705?)]," ''Oxford Dictionary of National Biography'' (Oxford University Press, 2004- ), accessed December 6, 2013.</ref> He was the son of John Brydall who was also a lawyer and a Barrister at [https://en.wikipedia.org/wiki/Lincoln%27s_Inn Lincoln's Inn] (one of the four [https://en.wikipedia.org/wiki/Inns_of_Court Inns of Court] in London). John Brydall entered Queen's College in 1652 and graduated in 1655.<ref>John Richard Magrath, ''[http://books.google.com/books?id=sV1IAAAAYAAJ&pg=PA54&dq=Queens+college+john+brydall&hl=en&sa=X&ei=MeepUq3CI6y_sQTjkYDADA&ved=0CEwQ6AEwAg#v=onepage&q=Queens%20college%20john%20brydall&f=false ''The Queen's College Vol II 1646-1877''] (Oxford: Clarendon Press, 1921), 54.
</ref> Prior to graduating, he enrolled as a low ranking member at Lincoln's Inn and was considered the obvious choice to replace his father upon his stepping down.<ref>de L. Landon, Brydall, John (b. c.1635, d. in or after 1705?).</ref> At some point in his legal career, it appears that he acted as secretary to Sir Harbottle Grimston, Master of the Rolls.<ref>Magrath, ''The Queen's College''.</ref> While one source indicates that by the time of his death he had authored thiry-six legal works, there seems to be some confusion between what he wrote and what his father may have written.<ref>de L. Landon, Brydall, John (b. c.1635, d. in or after 1705?); Magrath, ''The Queen's College''.</ref>

''Ars transferendi dominium: The second part. Or, a sure law-guide to the conveyancer, consisting of many observations and various questions, with their Resolutions; Relating To Feoffments, Grants, Fines, Common Recoveries, Exchanges, Releases, Confirmations, Attornments, Surrenders, Bargains and Sales, and Devises.'' By John Bridall of Lincolns Inn, Barrister. 1698.
This book was published in two parts, sometimes bound together, with both parts focusing on the legal issues involved in the transfer or conveyance of property.<ref>Unsigned review of [http://books.google.com/books?id=S_04AQAAMAAJ&pg=RA1-PA610#v=onepage&q&f=false ''Ars transferendi dominium''], by John Brydall, ''The Law Times'', May 23, 1896, 610-11.</ref> The book is broken into discussions of eleven different methods of conveyance of property. Each section begins with general definitions and discussion followed by Brydall's observations on the topic.<ref>Ibid.</ref> This portion of the book is followed by a section of questions and their resolutions starting with Feoffments. These questions are based on cases and are followed by answers in traditional Socratic method.<ref>Ibid.</ref>

==References==
<references />

==External Links==
See bookplate in: [https://books.google.com/books?id=jclFGwAACAAJ&dq=john+brydall+a+sure+law-guide+1698f+R.+and+E.+Atkyns Google Books]

==Evidence for Inclusion in Wythe's Library==

[[Category:Commercial Law]]
[[Category:Titles in Wythe's Library]]

Ars Transferendi Dominium, the Second Part

2015-02-24T14:05:37Z

Cjhunter:

{{DISPLAYTITLE:''Ars Transferendi Dominium, the Second Part''}}
<big>'' Ars Transferendi Dominium, the Second Part or, A Sure Law-Guide to the Conveyancer Consisting of Many Observations and Various Questions, with Their Resolutions, Relating to Feoffments, Grants, Fines, Common Recoveries, Exchanges, Releases, Confirmations, Attornments, Surrenders, Bargains and Sales, and Devises''</big>
===by John Brydall===
__NOTOC__
{{NoBookInfoBox
|shorttitle=Ars Transferendi Dominium, the Second Part
|commontitle=
|vol=
|author=John Brydall
|editor=
|trans=
|publoc=London
|publisher=Atkyns
|year=1698
|edition=
|lang=
|set=
|pages=
|desc=
}}
London: Printed by the assigns of R. and E. Atkyns ... for Samuel Heyrick ... and Isaac Cleave ..., 1698.

John Brydall (Bridall) was born in Chatsworth, Devonshire in 1635 and lived at least until 1705(the last known date of his published work).<ref>Michael de L. Landon, "[http://www.oxforddnb.com/view/article/3800 Brydall, John (b. c.1635, d. in or after 1705?)]," ''Oxford Dictionary of National Biography'' (Oxford University Press, 2004- ), accessed December 6, 2013.</ref> He was the son of John Brydall who was also a lawyer and a Barrister at [https://en.wikipedia.org/wiki/Lincoln%27s_Inn Lincoln's Inn] (one of the four [https://en.wikipedia.org/wiki/Inns_of_Court Inns of Court] in London). John Brydall entered Queen's College in 1652 and graduated in 1655.<ref>John Richard Magrath, ''The Queen's College'' Vol II 1646-1877. [http://books.google.com/books?id=sV1IAAAAYAAJ&pg=PA54&dq=Queens+college+john+brydall&hl=en&sa=X&ei=MeepUq3CI6y_sQTjkYDADA&ved=0CEwQ6AEwAg#v=onepage&q=Queens%20college%20john%20brydall&f=false 54]. 1921
</ref> Prior to graduating, he enrolled as a low ranking member at Lincoln's Inn and was considered the obvious choice to replace his father upon his stepping down.<ref>de L. Landon, Brydall, John (b. c.1635, d. in or after 1705?).</ref> At some point in his legal career, it appears that he acted as secretary to Sir Harbottle Grimston, Master of the Rolls.<ref>Magrath, ''The Queen's College''.</ref> While one source indicates that by the time of his death he had authored thiry-six legal works, there seems to be some confusion between what he wrote and what his father may have written.<ref>de L. Landon, Brydall, John (b. c.1635, d. in or after 1705?); Magrath, ''The Queen's College''.</ref>

''Ars transferendi dominium: The second part. Or, a sure law-guide to the conveyancer, consisting of many observations and various questions, with their Resolutions; Relating To Feoffments, Grants, Fines, Common Recoveries, Exchanges, Releases, Confirmations, Attornments, Surrenders, Bargains and Sales, and Devises.'' By John Bridall of Lincolns Inn, Barrister. 1698.
This book was published in two parts, sometimes bound together, with both parts focusing on the legal issues involved in the transfer or conveyance of property.<ref>Unsigned review of [http://books.google.com/books?id=S_04AQAAMAAJ&pg=RA1-PA610#v=onepage&q&f=false ''Ars transferendi dominium''], by John Brydall, ''The Law Times'', May 23, 1896, 610-11.</ref> The book is broken into discussions of eleven different methods of conveyance of property. Each section begins with general definitions and discussion followed by Brydall's observations on the topic.<ref>Ibid.</ref> This portion of the book is followed by a section of questions and their resolutions starting with Feoffments. These questions are based on cases and are followed by answers in traditional Socratic method.<ref>Ibid.</ref>

==References==
<references />

==External Links==
See bookplate in: [https://books.google.com/books?id=jclFGwAACAAJ&dq=john+brydall+a+sure+law-guide+1698f+R.+and+E.+Atkyns Google Books]

==Evidence for Inclusion in Wythe's Library==

[[Category:Commercial Law]]
[[Category:Titles in Wythe's Library]]

Ars Transferendi Dominium, the Second Part

2015-02-24T14:01:21Z

Cjhunter:

{{DISPLAYTITLE:''Ars Transferendi Dominium, the Second Part''}}
<big>'' Ars Transferendi Dominium, the Second Part or, A Sure Law-Guide to the Conveyancer Consisting of Many Observations and Various Questions, with Their Resolutions, Relating to Feoffments, Grants, Fines, Common Recoveries, Exchanges, Releases, Confirmations, Attornments, Surrenders, Bargains and Sales, and Devises''</big>
===by John Brydall===
__NOTOC__
{{NoBookInfoBox
|shorttitle=Ars Transferendi Dominium, the Second Part
|commontitle=
|vol=
|author=John Brydall
|editor=
|trans=
|publoc=London
|publisher=Atkyns
|year=1698
|edition=
|lang=
|set=
|pages=
|desc=
}}
London: Printed by the assigns of R. and E. Atkyns ... for Samuel Heyrick ... and Isaac Cleave ..., 1698.

John Brydall (Bridall) was born in Chatsworth, Devonshire in 1635 and lived at least until 1705(the last known date of his published work).<ref>Michael de L. Landon, "[http://www.oxforddnb.com/view/article/3800 Brydall, John (b. c.1635, d. in or after 1705?)]," ''Oxford Dictionary of National Biography'' (Oxford University Press, 2004- ), accessed December 6, 2013.</ref> He was the son of John Brydall who was also a lawyer and a Barrister at [https://en.wikipedia.org/wiki/Lincoln%27s_Inn Lincoln's Inn] (one of the four [https://en.wikipedia.org/wiki/Inns_of_Court Inns of Court] in London). John Brydall entered Queen's College in 1652 and graduated in 1655.<ref>John Richard Magrath, ''The Queen's College'' Vol II 1646-1877. [http://books.google.com/books?id=sV1IAAAAYAAJ&pg=PA54&dq=Queens+college+john+brydall&hl=en&sa=X&ei=MeepUq3CI6y_sQTjkYDADA&ved=0CEwQ6AEwAg#v=onepage&q=Queens%20college%20john%20brydall&f=false 54]. 1921
</ref> Prior to graduating, he enrolled as a low ranking member at Lincoln's Inn and was considered the obvious choice to replace his father upon his stepping down.<ref>de L. Landon, Brydall, John (b. c.1635, d. in or after 1705?).</ref> At some point in his legal career, it appears that he acted as secretary to Sir Harbottle Grimston, Master of the Rolls.<ref>Magrath, ''The Queen's College''.</ref> While one source indicates that by the time of his death he had authored thiry-six legal works, there seems to be some confusion between what he wrote and what his father may have written.<ref>de L. Landon, Brydall, John (b. c.1635, d. in or after 1705?); Magrath, ''The Queen's College''.</ref>

''Ars transferendi dominium: The second part. Or, a sure law-guide to the conveyancer, consisting of many observations and various questions, with their Resolutions; Relating To Feoffments, Grants, Fines, Common Recoveries, Exchanges, Releases, Confirmations, Attornments, Surrenders, Bargains and Sales, and Devises.'' By John Bridall of Lincolns Inn, Barrister. 1698.
This book was published in two parts, sometimes bound together, with both parts focusing on the legal issues involved in the transfer or conveyance of property.<ref>Unsigned review of "[http://books.google.com/books?id=S_04AQAAMAAJ&pg=RA1-PA610#v=onepage&q&f=false ''Ars transferendi dominium'']," by John Brydall, ''The Law Times'', May 23, 1896, 610-11.</ref> The book is broken into discussions of eleven different methods of conveyance of property. Each section begins with general definitions and discussion followed by Brydall's observations on the topic.<ref>Ibid.</ref> This portion of the book is followed by a section of questions and their resolutions starting with Feoffments. These questions are based on cases and are followed by answers in traditional Socratic method.<ref>Ibid.</ref>

1. Michael de L. Landon, ‘Brydall, John (b. c.1635, d. in or after 1705?)’, Oxford Dictionary of National Biography, Oxford University Press, 2004 [http://www.oxforddnb.com/view/article/3800, accessed 6 Dec 2013].
2.http://en.wikipedia.org/wiki/Lincolns_Inn
3. John Richard Magrath, D.D., The Queen's College. Vol II 1646-1877. Pg 54. 1921
http://books.google.com/books?id=sV1IAAAAYAAJ&pg=PA54&dq=Queens+college+john+brydall&hl=en&sa=X&ei=MeepUq3CI6y_sQTjkYDADA&ved=0CEwQ6AEwAg#v=onepage&q=Queens%20college%20john%20brydall&f=false
4. "Our Literary Column," The Law Times, DATE pp. 610-11. May 23, 1896. http://books.google.com/books?id=S_04AQAAMAAJ

==References==
<references />

==External Links==
See bookplate in: [https://books.google.com/books?id=jclFGwAACAAJ&dq=john+brydall+a+sure+law-guide+1698f+R.+and+E.+Atkyns Google Books]

==Evidence for Inclusion in Wythe's Library==

[[Category:Commercial Law]]
[[Category:Titles in Wythe's Library]]

Ars Transferendi Dominium, the Second Part

2015-02-24T13:39:08Z

Cjhunter:

{{DISPLAYTITLE:''Ars Transferendi Dominium, the Second Part''}}
<big>'' Ars Transferendi Dominium, the Second Part or, A Sure Law-Guide to the Conveyancer Consisting of Many Observations and Various Questions, with Their Resolutions, Relating to Feoffments, Grants, Fines, Common Recoveries, Exchanges, Releases, Confirmations, Attornments, Surrenders, Bargains and Sales, and Devises''</big>
===by John Brydall===
__NOTOC__
{{NoBookInfoBox
|shorttitle=Ars Transferendi Dominium, the Second Part
|commontitle=
|vol=
|author=John Brydall
|editor=
|trans=
|publoc=London
|publisher=Atkyns
|year=1698
|edition=
|lang=
|set=
|pages=
|desc=
}}
London: Printed by the assigns of R. and E. Atkyns ... for Samuel Heyrick ... and Isaac Cleave ..., 1698.

John Brydall (Bridall) was born in Chatsworth, Devonshire in 1635 and lived at least until 1705(the last known date of his published work).<ref>Michael de L. Landon, "[http://www.oxforddnb.com/view/article/3800 Brydall, John (b. c.1635, d. in or after 1705?)]," ''Oxford Dictionary of National Biography'' (Oxford University Press, 2004- ), accessed December 6, 2013.</ref> He was the son of John Brydall who was also a lawyer and a Barrister at [https://en.wikipedia.org/wiki/Lincoln%27s_Inn Lincoln's Inn] (one of the four [https://en.wikipedia.org/wiki/Inns_of_Court Inns of Court] in London). John Brydall entered Queen's College in 1652 and graduated in 1655.<ref>John Richard Magrath, ''The Queen's College'' Vol II 1646-1877. [http://books.google.com/books?id=sV1IAAAAYAAJ&pg=PA54&dq=Queens+college+john+brydall&hl=en&sa=X&ei=MeepUq3CI6y_sQTjkYDADA&ved=0CEwQ6AEwAg#v=onepage&q=Queens%20college%20john%20brydall&f=false 54]. 1921
</ref> Prior to graduating, he enrolled as a low ranking member at Lincoln's Inn and was considered the obvious choice to replace his father upon his stepping down.<ref>de L. Landon, Brydall, John (b. c.1635, d. in or after 1705?).</ref> At some point in his legal career, it appears that he acted as secretary to Sir Harbottle Grimston, Master of the Rolls.<ref>Magrath, ''The Queen's College''.</ref> While one source indicates that by the time of his death he had authored thiry-six legal works, there seems to be some confusion between what he wrote and what his father may have written.<ref>de L. Landon, Brydall, John (b. c.1635, d. in or after 1705?); Magrath, ''The Queen's College''.</ref>

''Ars transferendi dominium: The second part. Or, a sure law-guide to the conveyancer, consisting of many observations and various questions, with their Resolutions; Relating To Feoffments, Grants, Fines, Common Recoveries, Exchanges, Releases, Confirmations, Attornments, Surrenders, Bargains and Sales, and Devises.'' By John Bridall of Lincolns Inn, Barrister. 1698.
This book was published in two parts, sometimes bound together, with both parts focusing on the legal issues involved in the transfer or conveyance of property4. The book is broken into discussions of eleven different methods of conveyance of property. Each section begins with general definitions and discussion followed by Brydall's observations on the topic4. This portion of the book is followed by a section of questions and their resolutions starting with Feoffments. These questions are based on cases and are followed by answers in traditional Socratic method4.

1. Michael de L. Landon, ‘Brydall, John (b. c.1635, d. in or after 1705?)’, Oxford Dictionary of National Biography, Oxford University Press, 2004 [http://www.oxforddnb.com/view/article/3800, accessed 6 Dec 2013].
2.http://en.wikipedia.org/wiki/Lincolns_Inn
3. John Richard Magrath, D.D., The Queen's College. Vol II 1646-1877. Pg 54. 1921
http://books.google.com/books?id=sV1IAAAAYAAJ&pg=PA54&dq=Queens+college+john+brydall&hl=en&sa=X&ei=MeepUq3CI6y_sQTjkYDADA&ved=0CEwQ6AEwAg#v=onepage&q=Queens%20college%20john%20brydall&f=false
4. "Our Literary Column," The Law Times, DATE pp. 610-11. May 23, 1896. http://books.google.com/books?id=S_04AQAAMAAJ

==References==
<references />

==External Links==
See bookplate in: [https://books.google.com/books?id=jclFGwAACAAJ&dq=john+brydall+a+sure+law-guide+1698f+R.+and+E.+Atkyns Google Books]

==Evidence for Inclusion in Wythe's Library==

[[Category:Commercial Law]]
[[Category:Titles in Wythe's Library]]

Ars Transferendi Dominium, the Second Part

2015-02-18T19:58:34Z

Cjhunter: Summary paragraphs by Jim Patterson.

{{DISPLAYTITLE:''Ars Transferendi Dominium, the Second Part''}}
<big>'' Ars Transferendi Dominium, the Second Part or, A Sure Law-Guide to the Conveyancer Consisting of Many Observations and Various Questions, with Their Resolutions, Relating to Feoffments, Grants, Fines, Common Recoveries, Exchanges, Releases, Confirmations, Attornments, Surrenders, Bargains and Sales, and Devises''</big>
===by John Brydall===
__NOTOC__
{{NoBookInfoBox
|shorttitle=Ars Transferendi Dominium, the Second Part
|commontitle=
|vol=
|author=John Brydall
|editor=
|trans=
|publoc=London
|publisher=Atkyns
|year=1698
|edition=
|lang=
|set=
|pages=
|desc=
}}
London: Printed by the assigns of R. and E. Atkyns ... for Samuel Heyrick ... and Isaac Cleave ..., 1698.

John Brydall (Bridall) was born in Chatsworth, Devonshire in 1635 and lived at least until 1705(the last known date of his published work).<ref>Michael de L. Landon, "[http://www.oxforddnb.com/view/article/3800 Brydall, John (b. c.1635, d. in or after 1705?)]," ''Oxford Dictionary of National Biography'' (Oxford University Press, 2004- ), accessed December 6, 2013.</ref> He was the son of John Brydall who was also a lawyer and a Barrister at [https://en.wikipedia.org/wiki/Lincoln%27s_Inn Lincoln's Inn] (one of the four [https://en.wikipedia.org/wiki/Inns_of_Court Inns of Court] in London). John Brydall entered Queen's College in 1652 and graduated in 1655.<ref>John Richard Magrath, ''The Queen's College'' Vol II 1646-1877. [http://books.google.com/books?id=sV1IAAAAYAAJ&pg=PA54&dq=Queens+college+john+brydall&hl=en&sa=X&ei=MeepUq3CI6y_sQTjkYDADA&ved=0CEwQ6AEwAg#v=onepage&q=Queens%20college%20john%20brydall&f=false 54]. 1921
</ref> Prior to graduating, he enrolled as a low ranking member at Lincoln's Inn and was considered the obvious choice to replace his father upon his stepping down.<ref>de L. Landon, Brydall, John (b. c.1635, d. in or after 1705?).</ref> At some point in his legal career, it appears that he acted as secretary to Sir Harbottle Grimston, Master of the Rolls.<ref>Magrath, ''The Queen's College''.</ref> While one source indicates that by the time of his death he had authored thiry-six legal works, there seems to be some confusion between what he wrote and what his father may have written1,3.

''Ars transferendi dominium: The second part. Or, a sure law-guide to the conveyancer, consisting of many observations and various questions, with their Resolutions; Relating To Feoffments, Grants, Fines, Common Recoveries, Exchanges, Releases, Confirmations, Attornments, Surrenders, Bargains and Sales, and Devises.'' By John Bridall of Lincolns Inn, Barrister. 1698.
This book was published in two parts, sometimes bound together, with both parts focusing on the legal issues involved in the transfer or conveyance of property4. The book is broken into discussions of eleven different methods of conveyance of property. Each section begins with general definitions and discussion followed by Brydall's observations on the topic4. This portion of the book is followed by a section of questions and their resolutions starting with Feoffments. These questions are based on cases and are followed by answers in traditional Socratic method4.

1. Michael de L. Landon, ‘Brydall, John (b. c.1635, d. in or after 1705?)’, Oxford Dictionary of National Biography, Oxford University Press, 2004 [http://www.oxforddnb.com/view/article/3800, accessed 6 Dec 2013].
2.http://en.wikipedia.org/wiki/Lincolns_Inn
3. John Richard Magrath, D.D., The Queen's College. Vol II 1646-1877. Pg 54. 1921
http://books.google.com/books?id=sV1IAAAAYAAJ&pg=PA54&dq=Queens+college+john+brydall&hl=en&sa=X&ei=MeepUq3CI6y_sQTjkYDADA&ved=0CEwQ6AEwAg#v=onepage&q=Queens%20college%20john%20brydall&f=false
4. "Our Literary Column," The Law Times, DATE pp. 610-11. May 23, 1896. http://books.google.com/books?id=S_04AQAAMAAJ

==References==
<references />

==External Links==
See bookplate in: [https://books.google.com/books?id=jclFGwAACAAJ&dq=john+brydall+a+sure+law-guide+1698f+R.+and+E.+Atkyns Google Books]

==Evidence for Inclusion in Wythe's Library==

[[Category:Commercial Law]]
[[Category:Titles in Wythe's Library]]

Turpin v. Turpin

2015-02-10T14:50:53Z

Cjhunter:

{{DISPLAYTITLE:''Turpin v. Turpin''}}
[[File:WytheTurpinVTurpin1852.jpg|link=Media:WytheDecisions1852TurpinVTurpin.pdf|thumb|right|300px|First page of the opinion [[Media:WytheDecisions1852TurpinVTurpin.pdf|''Turpin v. Turpin'']], in [https://catalog.swem.wm.edu/law/Record/2099031 ''Decisions of Cases in Virginia by the High Court of Chancery, with Remarks upon Decrees by the Court of Appeals, Reversing Some of Those Decisions''], by George Wythe. 2nd ed. (Richmond: J. W. Randolph, 1852).]]
[[Media:WytheDecisions1852TurpinVTurpin.pdf|''Turpin v. Turpin'']], Wythe 137 (1791),<ref>George Wythe, ''[[Decisions of Cases in Virginia by the High Court of Chancery|Decisions of Cases in Virginia by the High Court of Chancery with Remarks upon Decrees by the Court of Appeals, Reversing Some of Those Decisions]],'' 2nd ed., ed. B.B. Minor (Richmond: J.W. Randolph, 1852), 137.</ref> discussed whether a person could give away land and chattel in a will that the person did not own at the time they wrote it but did own when they died.
__NOTOC__
==Background==
In February 1789, Peterfield Turpin created a will<ref>In this case, Wythe usually refers to a "testament". There was a distinction between a will and a testament in Wythe's time; Jacob's ''[[New Law-Dictionary]]'' said that a will gives away land, while a testament only gave away goods and chattel. Giles Jacob, "Will, or Last Will and Testament", ''[[New Law-Dictionary|A New Law-Dictionary]]'' ([London] In the Savoy: Printed by E. and R. Nutt, and R. Gosling, (assigns of E. Sayer, Esq.) for J. and J. Knapton et al., 1729). Wythe seemed to use the term "testament" for both types of documents, though, and the terms are interchangeable for modern-day audiences, often found together, so this article will use the term "will" to refer to both types of documents. Interestingly, ''Bouvier's Law Dictionary'' said that the "will" was a concept restricted to the common law, while the term "testament" was only found in the field of Roman civil law. John Bouvier, rev. by Francis Rawle, "Will", ''Bouvier's Law Dictionary'' (Kansas City, MO: Vernon Law Book Co., 8th ed. 1914). Perhaps Wythe preferred to use the civil law concept of the testament rather than voice the English common-law concept of the "will"?</ref> giving his brother Horatio the land and plantation where Peterfield's father Thomas lived plus ten slaves. Peterfield's will also gave Horatio 732 acres of land in Buckingham County. When Peterfield wrote the will, he did not own any of these.

Thomas Turpin owned everything listed in Peterfield's will. In March 1789, Thomas created a will giving the slaves, the land and plantation where Thomas lived, and the land in Buckingham County to Peterfield.

Thomas died before Peterfield, who died some time before the High Court of Chancery's decision.

Philip Turpin, the plaintiff, was another of Peterfield's brothers. Philip claimed that Peterfield's will did not control who inherited the land in Buckingham County, the slaves, or the land and plantation where Thomas lived because Peterfield did not own any of those when Peterfield wrote his will. Therefore, as a common-law heir to Peterfield, Philip argued he was entitled to a share and filed a bill with the High Court of Chancery to claim it.
==The Court's Decision==
The High Court of Chancery dismissed Philip's bill.

Wythe stated that under English common and statutory law a will that awarded land which the testator (i.e., the person who wrote the will) did not own when they created it was void, even if the testator owned the land when they died. Wythe cited to ''Butler and Baker's Case'' as found in ''[[Reports of Sir Edward Coke|Coke's Reports]]''<ref>76 Eng. Rep. 684, 3 [[Reports of Sir Edward Coke|Co. Rep.]] 25a (1591).</ref>, as well as ''Bunker v. Cook'', as discussed in Gilbert's ''[[Law of Devises, Revocations, and Last Will|Law of Devises, Revocations, and Last Wills]]''.<ref>1 Sir Geoffrey Gilbert, ''The Law of Devises, Last Wills, and Revocations'' 126 (4th ed. 1792). The case is also covered in 1 Eng. Rep. 1149, 1 Salk. 237 (1707), but Gilbert's report of the decision is much more detailed and includes the arguments made in the case.</ref>

Wythe noted, however, that a 1785 Virginia statute changed the law so that a person twenty-one years or older (who was not a married woman) could award land in a will whether they owned that land at the time they created the will ''or'' at the time they died.<ref>1785 Laws of Virginia, Ch. 61, 12 Hening 140.</ref> The question then became what exactly did Peterfield do when he wrote the will giving the land and slaves to Horatio?

If Peterfield was giving Horatio the rights to the property Peterfield had at the time the will was created, then the award was void, unless - as Roman civil law allowed - the will also bound the executor of Peterfield's estate to use the estate's proceeds to purchase the land Peterfield did not own in order to give it to Horatio. Here, Wythe referred to Justinian's ''[[Corpus Juris Civilis|Institutes]]''<ref>Justinian Inst. 2.20.4</ref> and ''[[Corpus Juris Civilis|Code]]''<ref>Justinian Code 6.37.10</ref>, which said that a person could bequeath another's property to an heir. Wythe did not mention it, but these two sections of the ''Corpus Juris Civilis'' added that a person could only bequeath another's property if they knew it belonged to someone else. If the person genuinely thought they owned the property, they could only bequeath the property to a very close relation - the idea being that the person would still have bequeathed the property to that heir had they known they did not really own it.

Reasoning that the law prefers to interpret wills in a way that keeps them valid, Wythe chose to read Peterfield's words as giving Horatio a future interest in the land; i.e., Horatio would get whatever interest in the described land Peterfield had when Peterfield died. By this reading, Peterfield's award to Horatio of the land in Buckingham County and the land where Thomas lived were valid.

The 1785 Virginia statute only discussed bequeathing ''land'', though, so Wythe proceeded to the next question: did Peterfield make a valid award of ten named slaves to Horatio, even though Peterfield did not own those slaves when he wrote the will?

Wythe began by looking at Swinburne's ''[[Treatise of Testaments and Last Wills]]''. Swinburne states that under English law, if the testator awards a specific thing in the will that the testator did not own at the time, but later bought the specific item, the presumption is that the testator bought to item to give to the heir, and the award is valid. If the testator only made a general award (e.g., "I give all my land to X"), however, any land purchased ''after'' the will's creation is not part of the award to the heir. Swinburne cited Cato's Rule,<ref>''"Catoniana regula sic definit, quod, si testamenti facti tempore decessisset testator, inutile foret, id legatum quandocumque decesserit, non valere. quae definitio in quibusdam falsa est."'' Justinian [[Corpus Juris Civilis|Digest]] 34.7.1.</ref> which said that "any legacy that would be void if the testator died immediately after making his will will not be valid no matter how long afterwards he may die," as his source for civil law. Wythe, however, found Cato's Rule inappropriate for circumstances that did not involve some sort of defect in the testator's ability to properly consent.

Swinburne cited the case of ''Brett v. Rigden''<ref>75 Eng. Rep. 516, 1 Plowden 340</ref> to support his contention in English common law. Wythe distinguished ''Brett'' on the facts, because it involved an award of land, but also said that it was not binding precedent. Wythe stated that in ''Bunker v. Cook'', Chief Justices Holt and Trevor declared ''Brett'' invalid precedent. In ''Bunker'', Chief Justice Holt cited two more English cases, ''Ashby v. Laver''<ref>75 Eng. Rep. 1017, [[Reports of Divers Choice Cases in Law|Goldesborough]] 93.</ref> and ''Southward v. Millard''<ref>82 Eng. Rep. 445, [[Reports, or New Cases|March, N.R.]] 135.</ref>, but Wythe distinguished those cases on the facts from the present situation.

Since Wythe found no caselaw precedent on point, he proceeded to answer the question by deducing it from legal principles. If a bequest were a present-day award of the right to own something, then Peterfield's gift of the slaves in his will would be invalid, because he did not own the slaves when he wrote the will. A bequest, however, is not a present-day gift of rights; it merely appoints the person the testator wants to succeed him in holding the rights to something after the testator's death. Wythe noted that Roman law allowed a testator to bequeath something he did not own at the time he wrote the will<ref>Justinian [[Corpus Juris Civilis|Inst.]] 2.20.4, Justinian [[Corpus Juris Civilis|Code]] 6.37.10</ref>, and that the countries which based their contemporary laws on Roman civil foundations still observed this rule. Furthermore, the fact that Peterfield did not alter his will after he became the slaves' owner affirmed his desire that Horatio own the slaves after Peterfield died.

Wythe also noted that the law usually allows a testator to make a general award of chattel to be acquired after writing the will to avoid the inconvenience of rewriting it every time the testator acquires something new. The testator's power to gift is the same, however, whether making a general award of chattel or an award of specifically-described chattel; to require the testator to republish the will just because he specifically described the chattel seemed to Wythe a nonsensical distinction.

Therefore, Wythe concluded, the devise in Peterfield's will giving ten named slaves to Horatio was also valid.

Philip appealed to the Supreme Court of Appeals of Virginia, which affirmed the Chancery Court's decision.<ref>''Turpin v. Turpin'', 1 Va. (1 Wash.) 75 (1791).</ref>

==Works Cited or Referenced by Wythe==
===Justinian's ''Digest''===
Quotation in Wythe's opinion:
<blockquote>
<tt><span style="color: #006600;">...is this ''quod, si testamenti facti tempore decessisset testator, inutile foret, id legatum quandocumque decesserit, non valet.''</span></tt> Translation: ''That which would be invalid if a testator has died at time of his will being made, will be invalid whenever he will have relinquished that legacy.''<ref>Wythe 141.</ref></blockquote>

For this quote, Wythe most likely used his copy of the ''[[Corpus Juris Civilis]]'' which includes the ''Digest of Justinian''.

===Justinian's ''Codex''===
Citation in Wythe's opinion:
<blockquote>
<tt><span style="color: #006600;">VI. tit. XXXVII. l. 10.</span></tt> Text of Citation: ''When anyone knowingly bequeaths property which belongs to another, whether it be a legacy or has been left under a trust, it can be claimed by him who has a right to it under either of these titles. If, however, when the testator bequeathed it, he believed it to be his own, the bequest will not be valid unless it was left to a near relative, to his wife, or to some other such person; and this will be the case even if he was aware that the property did not belong to him.''<ref>Wythe 139. Translation: [http://droitromain.upmf-grenoble.fr/Anglica/CJ6_Scott.htm#37 S.P. Scott].</ref></blockquote>

===Justinian's ''Institutes''===
Citation in Wythe's opinion:
<blockquote>
<tt><span style="color: #006600;">II. tit. XX §4.</span></tt> Text of Citation: ''A legacy may be given not only of things belonging to the testator or heir, but also of things belonging to a third person, the heir being bound by the will to buy and deliver them to the legatee, or to give him their value if the owner is unwilling to sell them. If the thing given be one of those of which private ownership is impossible, such, for instance, as the Campus Martius, a basilica, a church, or a thing devoted to public use, not even its value can be claimed, for the legacy is void. In saying that a thing belonging to a third person may be given as a legacy we must be understood to mean that this may be done if the deceased knew that it belonged to a third person, and not if he was ignorant of this: for perhaps he would never have given the legacy if he had known that the thing belonged neither to him nor to the heir, and there is a rescript of the Emperor Pius to this effect. It is also the better opinion that the plaintiff, that is the legatee, must prove that the deceased knew he was giving as a legacy a thing which was not his own, rather than that the heir must prove the contradictory: for the general rule of law is that the burden of proof lies on the plaintiff.''<ref>Wythe 139. Translation: [http://www.gutenberg.org/ebooks/5983?msg=welcome_stranger#link2H_4_0048 J.B. Moyle].</ref></blockquote>

==References==
<references/>

[[Category:Cases]]

Turpin v. Turpin

2015-02-10T14:45:13Z

Cjhunter:

{{DISPLAYTITLE:''Turpin v. Turpin''}}
[[File:WytheTurpinVTurpin1852.jpg|link=Media:WytheDecisions1852TurpinVTurpin.pdf|thumb|right|300px|First page of the opinion [[Media:WytheDecisions1852TurpinVTurpin.pdf|''Turpin v. Turpin'']], in [https://catalog.swem.wm.edu/law/Record/2099031 ''Decisions of Cases in Virginia by the High Court of Chancery, with Remarks upon Decrees by the Court of Appeals, Reversing Some of Those Decisions''], by George Wythe. 2nd ed. (Richmond: J. W. Randolph, 1852).]]
[[Media:WytheDecisions1852TurpinVTurpin.pdf|''Turpin v. Turpin'']], Wythe 137 (1791),<ref>George Wythe, ''[[Decisions of Cases in Virginia by the High Court of Chancery|Decisions of Cases in Virginia by the High Court of Chancery with Remarks upon Decrees by the Court of Appeals, Reversing Some of Those Decisions]],'' 2nd ed., ed. B.B. Minor (Richmond: J.W. Randolph, 1852), 137.</ref> discussed whether a person could give away land and chattel in a will that the person did not own at the time they wrote it but did own when they died.
__NOTOC__
==Background==
In February 1789, Peterfield Turpin created a will<ref>In this case, Wythe usually refers to a "testament". There was a distinction between a will and a testament in Wythe's time; Jacob's ''[[New Law-Dictionary]]'' said that a will gives away land, while a testament only gave away goods and chattel. Giles Jacob, "Will, or Last Will and Testament", ''[[New Law-Dictionary|A New Law-Dictionary]]'' ([London] In the Savoy: Printed by E. and R. Nutt, and R. Gosling, (assigns of E. Sayer, Esq.) for J. and J. Knapton et al., 1729). Wythe seemed to use the term "testament" for both types of documents, though, and the terms are interchangeable for modern-day audiences, often found together, so this article will use the term "will" to refer to both types of documents. Interestingly, ''Bouvier's Law Dictionary'' said that the "will" was a concept restricted to the common law, while the term "testament" was only found in the field of Roman civil law. John Bouvier, rev. by Francis Rawle, "Will", ''Bouvier's Law Dictionary'' (Kansas City, MO: Vernon Law Book Co., 8th ed. 1914). Perhaps Wythe preferred to use the civil law concept of the testament rather than voice the English common-law concept of the "will"?</ref> giving his brother Horatio the land and plantation where Peterfield's father Thomas lived plus ten slaves. Peterfield's will also gave Horatio 732 acres of land in Buckingham County. When Peterfield wrote the will, he did not own any of these.

Thomas Turpin owned everything listed in Peterfield's will. In March 1789, Thomas created a will giving the slaves, the land and plantation where Thomas lived, and the land in Buckingham County to Peterfield.

Thomas died before Peterfield, who died some time before the High Court of Chancery's decision.

Philip Turpin, the plaintiff, was another of Peterfield's brothers. Philip claimed that Peterfield's will did not control who inherited the land in Buckingham County, the slaves, or the land and plantation where Thomas lived because Peterfield did not own any of those when Peterfield wrote his will. Therefore, as a common-law heir to Peterfield, Philip argued he was entitled to a share and filed a bill with the High Court of Chancery to claim it.
==The Court's Decision==
The High Court of Chancery dismissed Philip's bill.

Wythe stated that under English common and statutory law a will that awarded land which the testator (i.e., the person who wrote the will) did not own when they created it was void, even if the testator owned the land when they died. Wythe cited to ''Butler and Baker's Case'' as found in ''[[Reports of Sir Edward Coke|Coke's Reports]]''<ref>76 Eng. Rep. 684, 3 [[Reports of Sir Edward Coke|Co. Rep.]] 25a (1591).</ref>, as well as ''Bunker v. Cook'', as discussed in Gilbert's ''[[Law of Devises, Revocations, and Last Will|Law of Devises, Revocations, and Last Wills]]''.<ref>1 Sir Geoffrey Gilbert, ''The Law of Devises, Last Wills, and Revocations'' 126 (4th ed. 1792). The case is also covered in 1 Eng. Rep. 1149, 1 Salk. 237 (1707), but Gilbert's report of the decision is much more detailed and includes the arguments made in the case.</ref>

Wythe noted, however, that a 1785 Virginia statute changed the law so that a person twenty-one years or older (who was not a married woman) could award land in a will whether they owned that land at the time they created the will ''or'' at the time they died.<ref>1785 Laws of Virginia, Ch. 61, 12 Hening 140.</ref> The question then became what exactly did Peterfield do when he wrote the will giving the land and slaves to Horatio?

If Peterfield was giving Horatio the rights to the property Peterfield had at the time the will was created, then the award was void, unless - as Roman civil law allowed - the will also bound the executor of Peterfield's estate to use the estate's proceeds to purchase the land Peterfield did not own in order to give it to Horatio. Here, Wythe referred to Justinian's ''[[Corpus Juris Civilis|Institutes]]''<ref>Justinian Inst. 2.20.4</ref> and ''[[Corpus Juris Civilis|Code]]''<ref>Justinian Code 6.37.10</ref>, which said that a person could bequeath another's property to an heir. Wythe did not mention it, but these two sections of the ''Corpus Juris Civilis'' added that a person could only bequeath another's property if they knew it belonged to someone else. If the person genuinely thought they owned the property, they could only bequeath the property to a very close relation - the idea being that the person would still have bequeathed the property to that heir had they known they did not really own it.

Reasoning that the law prefers to interpret wills in a way that keeps them valid, Wythe chose to read Peterfield's words as giving Horatio a future interest in the land; i.e., Horatio would get whatever interest in the described land Peterfield had when Peterfield died. By this reading, Peterfield's award to Horatio of the land in Buckingham County and the land where Thomas lived were valid.

The 1785 Virginia statute only discussed bequeathing ''land'', though, so Wythe proceeded to the next question: did Peterfield make a valid award of ten named slaves to Horatio, even though Peterfield did not own those slaves when he wrote the will?

Wythe began by looking at Swinburne's ''[[Treatise of Testaments and Last Wills]]''. Swinburne states that under English law, if the testator awards a specific thing in the will that the testator did not own at the time, but later bought the specific item, the presumption is that the testator bought to item to give to the heir, and the award is valid. If the testator only made a general award (e.g., "I give all my land to X"), however, any land purchased ''after'' the will's creation is not part of the award to the heir. Swinburne cited Cato's Rule,<ref>''"Catoniana regula sic definit, quod, si testamenti facti tempore decessisset testator, inutile foret, id legatum quandocumque decesserit, non valere. quae definitio in quibusdam falsa est."'' Justinian [[Corpus Juris Civilis|Digest]] 34.7.1.</ref> which said that "any legacy that would be void if the testator died immediately after making his will will not be valid no matter how long afterwards he may die," as his source for civil law. Wythe, however, found Cato's Rule inappropriate for circumstances that did not involve some sort of defect in the testator's ability to properly consent.

Swinburne cited the case of ''Brett v. Rigden''<ref>75 Eng. Rep. 516, 1 Plowden 340</ref> to support his contention in English common law. Wythe distinguished ''Brett'' on the facts, because it involved an award of land, but also said that it was not binding precedent. Wythe stated that in ''Bunker v. Cook'', Chief Justices Holt and Trevor declared ''Brett'' invalid precedent. In ''Bunker'', Chief Justice Holt cited two more English cases, ''Ashby v. Laver''<ref>75 Eng. Rep. 1017, [[Reports of Divers Choice Cases in Law|Goldesborough]] 93.</ref> and ''Southward v. Millard''<ref>82 Eng. Rep. 445, [[Reports, or New Cases|March, N.R.]] 135.</ref>, but Wythe distinguished those cases on the facts from the present situation.

Since Wythe found no caselaw precedent on point, he proceeded to answer the question by deducing it from legal principles. If a bequest were a present-day award of the right to own something, then Peterfield's gift of the slaves in his will would be invalid, because he did not own the slaves when he wrote the will. A bequest, however, is not a present-day gift of rights; it merely appoints the person the testator wants to succeed him in holding the rights to something after the testator's death. Wythe noted that Roman law allowed a testator to bequeath something he did not own at the time he wrote the will<ref>Justinian [[Corpus Juris Civilis|Inst.]] 2.20.4, Justinian [[Corpus Juris Civilis|Code]] 6.37.10</ref>, and that the countries which based their contemporary laws on Roman civil foundations still observed this rule. Furthermore, the fact that Peterfield did not alter his will after he became the slaves' owner affirmed his desire that Horatio own the slaves after Peterfield died.

Wythe also noted that the law usually allows a testator to make a general award of chattel to be acquired after writing the will to avoid the inconvenience of rewriting it every time the testator acquires something new. The testator's power to gift is the same, however, whether making a general award of chattel or an award of specifically-described chattel; to require the testator to republish the will just because he specifically described the chattel seemed to Wythe a nonsensical distinction.

Therefore, Wythe concluded, the devise in Peterfield's will giving ten named slaves to Horatio was also valid.

Philip appealed to the Supreme Court of Appeals of Virginia, which affirmed the Chancery Court's decision.<ref>''Turpin v. Turpin'', 1 Va. (1 Wash.) 75 (1791).</ref>

==Works Cited or Referenced by Wythe==
===Justinian's ''Digest''===
Quotation in Wythe's opinion:
<blockquote>
<tt><span style="color: #006600;">...is this ''quod, si testamenti facti tempore decessisset testator, inutile foret, id legatum quandocumque decesserit, non valet.''</span></tt> Translation: ''That which would be invalid if a testator has died at time of his will being made, will be invalid whenever he will have relinquished that legacy.''<ref>Wythe 141.</ref></blockquote>

For this quote, Wythe most likely used his copy of the ''[[Corpus Juris Civilis]]'' which includes the ''Digest of Justinian''.

===Justinian's ''Codex''===
Citation in Wythe's opinion:
<blockquote>
<tt><span style="color: #006600;">VI. tit. XXXVII. l. 10.</span></tt> Text of Citation: ''When anyone knowingly bequeaths property which belongs to another, whether it be a legacy or has been left under a trust, it can be claimed by him who has a right to it under either of these titles. If, however, when the testator bequeathed it, he believed it to be his own, the bequest will not be valid unless it was left to a near relative, to his wife, or to some other such person; and this will be the case even if he was aware that the property did not belong to him.''<ref>Wythe 139. Translation: [http://droitromain.upmf-grenoble.fr/Anglica/CJ6_Scott.htm#37 S.P. Scott].</ref></blockquote>

===Justinian's ''Institutes''===
Citation in Wythe's opinion:
<blockquote>
<tt><span style="color: #006600;">II. tit. XX §4.</span></tt> Text of Citation: ''“ A legacy may be given not only of things belonging to the testator or heir, but also of things belonging to a third person, the heir being bound by the will to buy and deliver them to the legatee, or to give him their value if the owner is unwilling to sell them. If the thing given be one of those of which private ownership is impossible, such, for instance, as the Campus Martius, a basilica, a church, or a thing devoted to public use, not even its value can be claimed, for the legacy is void. In saying that a thing belonging to a third person may be given as a legacy we must be understood to mean that this may be done if the deceased knew that it belonged to a third person, and not if he was ignorant of this: for perhaps he would never have given the legacy if he had known that the thing belonged neither to him nor to the heir, and there is a rescript of the Emperor Pius to this effect. It is also the better opinion that the plaintiff, that is the legatee, must prove that the deceased knew he was giving as a legacy a thing which was not his own, rather than that the heir must prove the contradictory: for the general rule of law is that the burden of proof lies on the plaintiff.''<ref>Wythe 139. Translation: [http://www.gutenberg.org/ebooks/5983?msg=welcome_stranger#link2H_4_0048 J.B. Moyle].</ref></blockquote>

==References==
<references/>

[[Category:Cases]]

Wilkins v. Taylor

2015-02-10T14:21:51Z

Cjhunter:

{{DISPLAYTITLE:''Wilkins v. Taylor''}}
[[File:WytheWilkinsVTaylor1852.jpg|link=Media:WytheDecisions1852WilkinsVTaylor.pdf|thumb|right|300px|First page of the opinion [[Media:WytheDecisions1852WilkinsVTaylor.pdf|''Wilkins v. Taylor'']], in [https://catalog.swem.wm.edu/law/Record/2099031 ''Decisions of Cases in Virginia by the High Court of Chancery, with Remarks upon Decrees by the Court of Appeals, Reversing Some of Those Decisions''], by George Wythe. 2nd ed. (Richmond: J. W. Randolph, 1852).]]
[[Media:WytheDecisions1852WilkinsVTaylor.pdf|''Wilkins v. Taylor'']], Wythe 338 (1799),<ref>George Wythe, ''[[Decisions of Cases in Virginia by the High Court of Chancery|Decisions of Cases in Virginia by the High Court of Chancery with Remarks upon Decrees by the Court of Appeals, Reversing Some of Those Decisions]],'' 2nd ed., ed. B.B. Minor (Richmond: J.W. Randolph, 1852), 338.</ref> involved the interpretation of a will. Wythe used his discussion of this case to contrast his methods of interpreting wills with the Virginia Supreme Court's, and to issue another call for the Virginia Supreme Court to break with English caselaw precedent.
__NOTOC__
==Background==
Thomas Williamson died, and in his will left his daughter Elizabeth Clements I the interest off of £4000 worth of government certificates for Elizabeth I's life. On Elizabeth I's death, the will gave "the interest of the above money, one fourth to each of my grandchildren" Sarah Cocke, Elizabeth Clements II, Francis Clements, and John Clements. When the grandchildren died, their share of the principal and interest from the government funds were to "be disposed by them to their heirs, in such proportions as they, by their wills, respectively, may direct". If Sarah Cocke died "without issue",<ref>In property law, "issue" refers to a person's descendants. Bryan A. Garner, ed., "Issue (3)", ''Black's Law Dictionary'' (St. Paul, MN: Thomson Reuters, 10th ed. 2014).</ref> then her share of the inheritance would go to Elizabeth II.

When Elizabeth I died, Sarah filed a suit in equity in County Court against John Taylor, the executor of Thomas's will, asking for one-fourth of the certificates, which the County Court awarded her. Taylor appealed the County Court's decision to the High Court of Chancery, which reversed it.

After the Chancery Court reversed the County Court's decision, Sarah married Joseph Wilkins.<ref>Sarah's first husband, H. Cocke, had died some time before the Chancery Court issued its first decision.</ref> The Wilkinses filed a bill<ref>During Wythe's time, a woman's legal identity merged with her husband's upon marriage. William Blackstone and St. George Tucker, ''Blackstone's with Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of Virginia'', (Philadelphia: Wm. Young Birch and Abraham Small, 1803): Vol. 2, p. 441.</ref> with the Chancery Court asking it to review its earlier decision. Before the Chancery Court could issue its verdict this time, Sarah died and Joseph Wilkins continued to pursue the bill as administrator of Sarah's estate.
==The Chancery Court's Decision==
The Chancery Court upheld its earlier decree, and said that Sarah was not entitled to one-fourth of the certificates.

Wythe said that Thomas Williamson's will clearly intended that his grandchildren not get ownership over the certificates themselves, just the interest earned off of them. Thomas meant for property interest in the certificates to go to the grandchildren's heirs. Wythe said the rule of ''[[Shermer v. Richardson]]''<ref>Wythe 159.</ref> did not apply in this situation. In ''Shermer'', Wythe said that a widow got full rights in property when the will gave her the right to use it during her lifetime plus the power to designate anyone she wanted to inherit it after her death. In the Wilkinses case, however, Thomas's will said that the certificates would go to the grandchildren's heirs, meaning the grandchildren's children. In ''Shermer'', the will specifically stated that the widow could pick anyone she wished to designate as an heir. In addition, Thomas's will said that if Sarah died without children, her share in the interest would go to Elizabeth II. Allowing Sarah - or any of Thomas's grandchildren - to have full rights in the certificates to use or give in any way they pleased would run counter to Thomas's desire as expressed in his will.
==In the Virginia Supreme Court==
Wilkins appealed Wythe's decision to the Virginia Supreme Court of Appeals, which unanimously reversed Wythe and reinstated the County Court's decision.<ref>''Wilkins v. Taylor'', 9 Va. (5 Call) 150 (1804).</ref>

The Supreme Court said that it already decided the issue in its decision of ''Goodwin v. Taylor''<ref>8 Va. (4 Call) 305 (1795).</ref>, in which the estate administrator of another of Thomas Williamson's heirs, Elizabeth II, sued to get a one-fourth share of the certificates.<ref>This case also found its way to the Chancery Court. As with ''Wilkins'', Wythe rejected the heir's request (in an unpublished opinion) and was reversed by the Supreme Court. Wythe likely had had his fill of this family by now.</ref> In ''Goodwin'', the Court said that when Thomas's will gave the grandchildren the right to award the certificates to heirs, it gave the grandchildren full property rights in those certificates.

According to the Court, the only difference in Wilkins's case was that the will also said that if Sarah died "without issue", then Sarah's share would go to Elizabeth II. The majority of the Court said that becuase the will did not set a time limit, the possibility of dying without any descendants at all was so remote that the restriction in the will was void.

==Wythe's Discussion==
Wythe began his discussion by dissecting the language in Thomas's will. Wythe paid particular attention to the word "disposed", using examples from [[Caii Julii Caesaris et A. Hirtii de Rebus a Caesare Gestis Commentarii|Caesar's ''Commentaries on the Civil War'']], [[Titi Livii Historiarum Quod Extat|Livy's ''Books from the Foundation of the City'']], and [[D. Junii Juvenalis et A. Persii Flacci Satyrae|Juvenal's ''Satyrae'']], and cited the works of [https://en.wikipedia.org/wiki/Tacitus Tacitus] and [https://en.wikipedia.org/wiki/Suetonius Suetonius] to establish that to "dispose" of something only meant to distribute it under someone else's direction. Therefore, the will's language directing the grandchildren to "dispose" of the certificates did not give them property rights in the certificates, only the responsibility to distribute them to their heirs.

Wythe continued by saying that defining "heirs" as the children of Thomas's grandchildren did not create an unreasonably indefinite condition. At the longest, one would know no later than nine months after each grandchild died whether that grandchild had produced an heir.

After Wythe's own interpretation of the language in Thomas's will, he proceeded to examine the common law on will interpretation. One of Wythe's biographers, Robert Kirtland, says that one of Wythe's biggest complaints about the Supreme Court was its use of highly technical rules of construction to interpret wills often written by poorly-educated rural Virginians.<ref>Robert B. Kirtland, ''George Wythe: Lawyer, Revolutionary, Judge'' (New York: Garland Publishing, Inc., 1986): 258.</ref> Kirtland nicely summarizes how Wythe used the ''Wilkins'' case as an opportunity to contrast his method of interpreting wills with the Supreme Court's - using some of [[Edmund Pendleton]]'s previous opinions as examples.<ref>Kirtland (1986): 258-62.</ref> Wythe published this opinion and his discussion before the Supreme Court heard Wilkins's appeal. Pendleton died in 1803, so Wythe's long-time ''bête noire'' was not on the Supreme Court when this case arrived there. [https://en.wikipedia.org/wiki/Peter_Lyons_%28Virginia_judge%29 Peter Lyons] was the new President of the Supreme Court, and Wythe's former student (and successor as William & Mary's Professor of Law and Police) [[St. George Tucker]] had joined its bench.

Wythe also called upon classic works from various ages to bolster and illustrate his argument. Wythe quoted [[C. Suetonii Tranquilli Opera Omnia Quae Extant|Suetonius's histories of the grammaticians]] when he said that judges have no more power to unilaterally change an everyday word's meaning than Caesar did to give a word citizenship.<ref>''"cum ex oratione Tiberi verbum reprehendisset, affirmante Ateio Capitone, et esse illud Latinum, et si non esset, futurum certe iam inde: 'Mentitur,' inquit, 'Capito; tu enim, Caesar, civitatem dare potes hominibus, verbo non potes.'"'' Suetonis, ''De Grammaticis'' 22. Here, Suetonis describes a time when grammarian Marcus Pomponius Marcellus criticized a word [https://en.wikipedia.org/wiki/Tiberius Emperor Tiberius] used in a speech. [https://en.wikipedia.org/wiki/Gaius_Ateius_Capito_%28jurist%29 Gaius Ateius Capito] argued that if the word was not proper Latin, it certainly was now that the emperor had used it. Marcellus replied that the emperor might be able to naturalize people, but not words. Wythe left out the first part of the paragraph, in which Suetonis describes Marcellus as ''"sermonis Latini exactor molestissimus"'', which could be translated as "a tiresome (or annoying) enforcer of Latin diction". One translator of Suetonis's works, J.C. Rolfe, used the phrase "a most pedantic critic of the Latin language". [http://penelope.uchicago.edu/Thayer/E/Roman/Texts/Suetonius/de_Grammaticis*.html#22 Suetonius, ed. by J.C. Rolfe, ''Lives of the Caesars, Volume II'' (Cambridge, MA: Harvard Univ. Press, 1914): 428-9].</ref>

Even though Pendleton said in ''Shermer v. Shermer's Executor'' that caselaw precedent must be strong, uniform, and on point before he would allow it to frustrate a testator's intent,<ref>''Shermer'', 1 Va. at 273.</ref> he lamented that he was caught in a [https://en.wikipedia.org/wiki/Gordian_Knot Gordian knot] tied by years of English judges creating conflicting interpretive canons inspired by the feudal system. If only those judges had simply cut that knot!<ref>''Kennon v. McRoberts'', 1 Va. (1 Wash.) 96, 102 (1792).</ref> Wythe used this quote from Pendleton as a segue to [https://en.wikipedia.org/wiki/Quintus_Curtius_Rufus Quintus Curtius Rufus's] description of the Gordian knot in his biography of Alexander the Great.<ref>[http://penelope.uchicago.edu/Thayer/L/Roman/Texts/Curtius/3*.html Q. Curti Rufi, ''Historiam Alexandri Magni Macedonis'', Lib. III, Cap. I.]</ref> If Pendleton thinks that English judges should have cut this knot of confusing canons, then why has Pendleton not simply done the job itself? The only people who benefit from these hoary interpretive rules are, to use the [[Holy Bible|biblical]] phrase, those who "by this craft. . .have their wealth".<ref>Acts 19:25.</ref>

Wythe also alluded to [[Publii Virgilii Maronis Bucolica, Georgica, et Aeneis|Virgil's ''Aeneid'']] in his discussion. When the Virginia Assembly eliminated the feudal system, Wythe said, it acted as [https://en.wikipedia.org/wiki/Daedalus#The_Labyrinth Daedalus] to the judges' [https://en.wikipedia.org/wiki/Theseus#The_myth_of_Theseus_and_the_Minotaur Theseus],<ref>Virgil, ''Aeneis'': Lib. VI, lines 29-30. According to legend, Daedalus created the Labyrinth for King Minos of Crete to house the Minotaur. The reason varies depending on the story, but Athens sent several youths to Crete at regular intervals to be sacrificed to the Minotaur. Theseus went to Crete to kill the Minotaur and stop the sacrifices. When Theseus arrived in Crete, Minos's daughter Ariadne instantly fell in love with him. Daedalus felt sorry for Ariadne and gave her a thread to give to Theseus, along with instructions on how to escape the Labyrinth.</ref> showing the way out of the gloom of outdated interpretive rules.

Wythe implied that he had more thoughts on how his interpretation of Thomas's will was the only plausible one and should not be subject to old English rules of interpretation, but he gave himself the same advice Polonius gave to Laertes in Hamlet: "give thy thoughts no tongue."<ref>William Shakespeare, ''Hamlet'': Act I, Scene 3.</ref>

In an appendix to his main analysis, Wythe compared the case of ''Rose v. Bartlett''<ref>79 Eng. Rep. 856, [[First-Third Parts of the Reports of Sr George Croke|Cro. Car.]] 292 (7 Car. I).</ref> from [[First-Third Parts of the Reports of Sr George Croke|''Croke's Reports'']] (which the Supreme Court relied on in ''Minnis v. Aylett'') with a very old unpublished English case called ''Stradling v. Styles'' that had reached a contradictory result. By this, Wythe intended to show that the Supreme Court was picking and choosing the precedent it liked and redefining it as bedrock, long-established principle. Wythe cautioned that if the Supreme Court continued to do this, lawyers would take its lead and argue that the only precedent that needed to be followed would be the cases that agreed with their side.

==Works Cited or Referenced by Wythe==
===Virgil's ''Aeneid''===
Quotation in Wythe's opinion:
<blockquote>
<tt><span style="color: #006600;">For expediting us from its maeanders, our Daedalus, who – ''ipse dolos tecti ambagesque resolvit, / Caeca regeus filo vestigia,'' - the general assembly shewed the clew, execrating, in our system of jurisprudence, every part formed of feudal materials, or fashioned in feudal style.</span></tt> Translation: ''[Daedalus] unraveled the deceptive tangle of corridors, / guiding Theseus’s blind footsteps with the clue of thread.'' Wythe explains that the General Assembly has revealed the underlying feudal origins of contemporary jurisprudence.<ref>Wythe 350. Translation: [http://www.poetryintranslation.com/PITBR/Latin/VirgilAeneidVI.htm#_Toc2242922 A.S. Kline].</ref></blockquote>

===Caesar's ''Civil War''===
Quotation in Wythe's opinion:
<blockquote>
<tt><span style="color: #006600;">''Pompeius ex urbus profectus iter ad legions habebat quas a Caesare acceptas in Apulia hiberuorum causa, DISPOSEUREAT.''</span></tt> Translation: ''Pompey went from the city to the legions, which received from Caesar, he had DISPOSED, that is DISTRIBUTED, in winter quarters in Apulia (Wythe’s translation).'' In this case, Wythe is illustrating the varied meanings of the word "disposed", as this particular word is of contention in the instant case.<ref>Wythe 340.</ref></blockquote>

===Quintus Curtius Rufus's ''Histories of Alexander the Great''===
Quotation in Wythe's opinion:
<blockquote>
<tt><span style="color: #006600;">''...serie vinculorum ita adstricta, ut unde nexus inciperet quove se conderet, nec ratione, nec visu, perspici posset.''</span></tt> Translation: ''[t]hus, constrained by a series of fetters, so that where the bind began or in what way it composed itself, was able to be perceived neither by reason nor vision.'' Wythe uses this image to illustrate the complexities of the English Common Law concerning the execution of wills.<ref>Wythe 349.</ref></blockquote>

===Livy's ''The History of Rome''===
Quotation in Wythe's opinion:
<blockquote>
<tt><span style="color: #006600;">''Scipio retentum secum Laelium, dum captivos obsidesque et praedam ex consilio eius DISPONERET, satis & c. Romam mittit.''</span></tt> Translation: ''Scipio, having retained with him Laelius, until, by his advice, he should DISPOSE, that is DISTRIBUTE, the prisoners, hostages, and plunder, after dispatching these affairs, sends him to Rome (Wythe's translation).'' In this case the exact meaning of "dispose" was central to the dispute, so Wythe turned to classical authority to clarify.<ref>Wythe 340.</ref></blockquote>

===Suetonius's ''Tiberius''===
Quotation in Wythe's opinion:
<blockquote>
<tt><span style="color: #006600;">''DISPONERE diem'' is used by Tacitus, Suetonius, and others, to signify division of the day into portions for particular occupations devoted to each.</span></tt> Translation: ''To dispose the day.'' In this case, Wythe is illustrating the varied meanings of the word "disposed", as this particular word is of contention in the instant case.<ref>Id.</ref></blockquote>

===Suetonius's ''Lives of the Grammarians''===
Quotation in Wythe's opinion:
<blockquote>
<tt><span style="color: #006600;">''Marcus Pomponius Marcellus, cum ex oratione Tiberium reprehendisset, affirmante Ateio Capitone, et esse latinum, et, si non esse, futurum, "certe iam inde mentitur, inquit, Capito. tu enim Caesar, civitatem dare potes hominibus, verbis non potes."''</span></tt> Translation: ''Marcus Pomponius Marcellus, had criticized [a word] in one of Tiberius’ speeches, and Aetius Capito asserted that it was [good] Latin, or if it was not, it would soon be, [Marcellus replied] "Capito lies. For you, Caesar, can confer citizenship on men, but not on words."''<ref>Wythe 347-48.</ref></blockquote>

===Tacitus's ''Germania''===
Quotation in Wythe's opinion:
<blockquote>
<tt><span style="color: #006600;">''DISPONERE diem'' is used by Tacitus, Suetonius, and others, to signify division of the day into portions for particular occupations devoted to each.</span></tt> Translation: ''To dispose the day.'' In this case, Wythe is illustrating the varied meanings of the word "disposed", as this particular word is of contention in the instant case.<ref>Wythe 340.</ref></blockquote>

===Euclid's ''Elements''===
Quotation in Wythe's opinion:
<blockquote>
<tt><span style="color: #006600;">''we hear of a single instance, in this country, where any person had questioned, whether "only the freehold lands should pass by such a devise;" in other words, whether the postulate of Euclid, in his elements, "that the whole is greater than its part," ought to be granted.''</span></tt> Translation: Here Wythe uses Euclid’s famous maxim to illustrate his proposition.<ref>Wythe 353.</ref></blockquote>
==References==
<references/>

[[Category:Cases]]

Wilkins v. Taylor

2015-02-10T14:15:22Z

Cjhunter:

{{DISPLAYTITLE:''Wilkins v. Taylor''}}
[[File:WytheWilkinsVTaylor1852.jpg|link=Media:WytheDecisions1852WilkinsVTaylor.pdf|thumb|right|300px|First page of the opinion [[Media:WytheDecisions1852WilkinsVTaylor.pdf|''Wilkins v. Taylor'']], in [https://catalog.swem.wm.edu/law/Record/2099031 ''Decisions of Cases in Virginia by the High Court of Chancery, with Remarks upon Decrees by the Court of Appeals, Reversing Some of Those Decisions''], by George Wythe. 2nd ed. (Richmond: J. W. Randolph, 1852).]]
[[Media:WytheDecisions1852WilkinsVTaylor.pdf|''Wilkins v. Taylor'']], Wythe 338 (1799),<ref>George Wythe, ''[[Decisions of Cases in Virginia by the High Court of Chancery|Decisions of Cases in Virginia by the High Court of Chancery with Remarks upon Decrees by the Court of Appeals, Reversing Some of Those Decisions]],'' 2nd ed., ed. B.B. Minor (Richmond: J.W. Randolph, 1852), 338.</ref> involved the interpretation of a will. Wythe used his discussion of this case to contrast his methods of interpreting wills with the Virginia Supreme Court's, and to issue another call for the Virginia Supreme Court to break with English caselaw precedent.
__NOTOC__
==Background==
Thomas Williamson died, and in his will left his daughter Elizabeth Clements I the interest off of £4000 worth of government certificates for Elizabeth I's life. On Elizabeth I's death, the will gave "the interest of the above money, one fourth to each of my grandchildren" Sarah Cocke, Elizabeth Clements II, Francis Clements, and John Clements. When the grandchildren died, their share of the principal and interest from the government funds were to "be disposed by them to their heirs, in such proportions as they, by their wills, respectively, may direct". If Sarah Cocke died "without issue",<ref>In property law, "issue" refers to a person's descendants. Bryan A. Garner, ed., "Issue (3)", ''Black's Law Dictionary'' (St. Paul, MN: Thomson Reuters, 10th ed. 2014).</ref> then her share of the inheritance would go to Elizabeth II.

When Elizabeth I died, Sarah filed a suit in equity in County Court against John Taylor, the executor of Thomas's will, asking for one-fourth of the certificates, which the County Court awarded her. Taylor appealed the County Court's decision to the High Court of Chancery, which reversed it.

After the Chancery Court reversed the County Court's decision, Sarah married Joseph Wilkins.<ref>Sarah's first husband, H. Cocke, had died some time before the Chancery Court issued its first decision.</ref> The Wilkinses filed a bill<ref>During Wythe's time, a woman's legal identity merged with her husband's upon marriage. William Blackstone and St. George Tucker, ''Blackstone's with Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of Virginia'', (Philadelphia: Wm. Young Birch and Abraham Small, 1803): Vol. 2, p. 441.</ref> with the Chancery Court asking it to review its earlier decision. Before the Chancery Court could issue its verdict this time, Sarah died and Joseph Wilkins continued to pursue the bill as administrator of Sarah's estate.
==The Chancery Court's Decision==
The Chancery Court upheld its earlier decree, and said that Sarah was not entitled to one-fourth of the certificates.

Wythe said that Thomas Williamson's will clearly intended that his grandchildren not get ownership over the certificates themselves, just the interest earned off of them. Thomas meant for property interest in the certificates to go to the grandchildren's heirs. Wythe said the rule of ''[[Shermer v. Richardson]]''<ref>Wythe 159.</ref> did not apply in this situation. In ''Shermer'', Wythe said that a widow got full rights in property when the will gave her the right to use it during her lifetime plus the power to designate anyone she wanted to inherit it after her death. In the Wilkinses case, however, Thomas's will said that the certificates would go to the grandchildren's heirs, meaning the grandchildren's children. In ''Shermer'', the will specifically stated that the widow could pick anyone she wished to designate as an heir. In addition, Thomas's will said that if Sarah died without children, her share in the interest would go to Elizabeth II. Allowing Sarah - or any of Thomas's grandchildren - to have full rights in the certificates to use or give in any way they pleased would run counter to Thomas's desire as expressed in his will.
==In the Virginia Supreme Court==
Wilkins appealed Wythe's decision to the Virginia Supreme Court of Appeals, which unanimously reversed Wythe and reinstated the County Court's decision.<ref>''Wilkins v. Taylor'', 9 Va. (5 Call) 150 (1804).</ref>

The Supreme Court said that it already decided the issue in its decision of ''Goodwin v. Taylor''<ref>8 Va. (4 Call) 305 (1795).</ref>, in which the estate administrator of another of Thomas Williamson's heirs, Elizabeth II, sued to get a one-fourth share of the certificates.<ref>This case also found its way to the Chancery Court. As with ''Wilkins'', Wythe rejected the heir's request (in an unpublished opinion) and was reversed by the Supreme Court. Wythe likely had had his fill of this family by now.</ref> In ''Goodwin'', the Court said that when Thomas's will gave the grandchildren the right to award the certificates to heirs, it gave the grandchildren full property rights in those certificates.

According to the Court, the only difference in Wilkins's case was that the will also said that if Sarah died "without issue", then Sarah's share would go to Elizabeth II. The majority of the Court said that becuase the will did not set a time limit, the possibility of dying without any descendants at all was so remote that the restriction in the will was void.

==Wythe's Discussion==
Wythe began his discussion by dissecting the language in Thomas's will. Wythe paid particular attention to the word "disposed", using examples from [[Caii Julii Caesaris et A. Hirtii de Rebus a Caesare Gestis Commentarii|Caesar's ''Commentaries on the Civil War'']], [[Titi Livii Historiarum Quod Extat|Livy's ''Books from the Foundation of the City'']], and [[D. Junii Juvenalis et A. Persii Flacci Satyrae|Juvenal's ''Satyrae'']], and cited the works of [https://en.wikipedia.org/wiki/Tacitus Tacitus] and [https://en.wikipedia.org/wiki/Suetonius Suetonius] to establish that to "dispose" of something only meant to distribute it under someone else's direction. Therefore, the will's language directing the grandchildren to "dispose" of the certificates did not give them property rights in the certificates, only the responsibility to distribute them to their heirs.

Wythe continued by saying that defining "heirs" as the children of Thomas's grandchildren did not create an unreasonably indefinite condition. At the longest, one would know no later than nine months after each grandchild died whether that grandchild had produced an heir.

After Wythe's own interpretation of the language in Thomas's will, he proceeded to examine the common law on will interpretation. One of Wythe's biographers, Robert Kirtland, says that one of Wythe's biggest complaints about the Supreme Court was its use of highly technical rules of construction to interpret wills often written by poorly-educated rural Virginians.<ref>Robert B. Kirtland, ''George Wythe: Lawyer, Revolutionary, Judge'' (New York: Garland Publishing, Inc., 1986): 258.</ref> Kirtland nicely summarizes how Wythe used the ''Wilkins'' case as an opportunity to contrast his method of interpreting wills with the Supreme Court's - using some of [[Edmund Pendleton]]'s previous opinions as examples.<ref>Kirtland (1986): 258-62.</ref> Wythe published this opinion and his discussion before the Supreme Court heard Wilkins's appeal. Pendleton died in 1803, so Wythe's long-time ''bête noire'' was not on the Supreme Court when this case arrived there. [https://en.wikipedia.org/wiki/Peter_Lyons_%28Virginia_judge%29 Peter Lyons] was the new President of the Supreme Court, and Wythe's former student (and successor as William & Mary's Professor of Law and Police) [[St. George Tucker]] had joined its bench.

Wythe also called upon classic works from various ages to bolster and illustrate his argument. Wythe quoted [[C. Suetonii Tranquilli Opera Omnia Quae Extant|Suetonius's histories of the grammaticians]] when he said that judges have no more power to unilaterally change an everyday word's meaning than Caesar did to give a word citizenship.<ref>''"cum ex oratione Tiberi verbum reprehendisset, affirmante Ateio Capitone, et esse illud Latinum, et si non esset, futurum certe iam inde: 'Mentitur,' inquit, 'Capito; tu enim, Caesar, civitatem dare potes hominibus, verbo non potes.'"'' Suetonis, ''De Grammaticis'' 22. Here, Suetonis describes a time when grammarian Marcus Pomponius Marcellus criticized a word [https://en.wikipedia.org/wiki/Tiberius Emperor Tiberius] used in a speech. [https://en.wikipedia.org/wiki/Gaius_Ateius_Capito_%28jurist%29 Gaius Ateius Capito] argued that if the word was not proper Latin, it certainly was now that the emperor had used it. Marcellus replied that the emperor might be able to naturalize people, but not words. Wythe left out the first part of the paragraph, in which Suetonis describes Marcellus as ''"sermonis Latini exactor molestissimus"'', which could be translated as "a tiresome (or annoying) enforcer of Latin diction". One translator of Suetonis's works, J.C. Rolfe, used the phrase "a most pedantic critic of the Latin language". [http://penelope.uchicago.edu/Thayer/E/Roman/Texts/Suetonius/de_Grammaticis*.html#22 Suetonius, ed. by J.C. Rolfe, ''Lives of the Caesars, Volume II'' (Cambridge, MA: Harvard Univ. Press, 1914): 428-9].</ref>

Even though Pendleton said in ''Shermer v. Shermer's Executor'' that caselaw precedent must be strong, uniform, and on point before he would allow it to frustrate a testator's intent,<ref>''Shermer'', 1 Va. at 273.</ref> he lamented that he was caught in a [https://en.wikipedia.org/wiki/Gordian_Knot Gordian knot] tied by years of English judges creating conflicting interpretive canons inspired by the feudal system. If only those judges had simply cut that knot!<ref>''Kennon v. McRoberts'', 1 Va. (1 Wash.) 96, 102 (1792).</ref> Wythe used this quote from Pendleton as a segue to [https://en.wikipedia.org/wiki/Quintus_Curtius_Rufus Quintus Curtius Rufus's] description of the Gordian knot in his biography of Alexander the Great.<ref>[http://penelope.uchicago.edu/Thayer/L/Roman/Texts/Curtius/3*.html Q. Curti Rufi, ''Historiam Alexandri Magni Macedonis'', Lib. III, Cap. I.]</ref> If Pendleton thinks that English judges should have cut this knot of confusing canons, then why has Pendleton not simply done the job itself? The only people who benefit from these hoary interpretive rules are, to use the [[Holy Bible|biblical]] phrase, those who "by this craft. . .have their wealth".<ref>Acts 19:25.</ref>

Wythe also alluded to [[Publii Virgilii Maronis Bucolica, Georgica, et Aeneis|Virgil's ''Aeneid'']] in his discussion. When the Virginia Assembly eliminated the feudal system, Wythe said, it acted as [https://en.wikipedia.org/wiki/Daedalus#The_Labyrinth Daedalus] to the judges' [https://en.wikipedia.org/wiki/Theseus#The_myth_of_Theseus_and_the_Minotaur Theseus],<ref>Virgil, ''Aeneis'': Lib. VI, lines 29-30. According to legend, Daedalus created the Labyrinth for King Minos of Crete to house the Minotaur. The reason varies depending on the story, but Athens sent several youths to Crete at regular intervals to be sacrificed to the Minotaur. Theseus went to Crete to kill the Minotaur and stop the sacrifices. When Theseus arrived in Crete, Minos's daughter Ariadne instantly fell in love with him. Daedalus felt sorry for Ariadne and gave her a thread to give to Theseus, along with instructions on how to escape the Labyrinth.</ref> showing the way out of the gloom of outdated interpretive rules.

Wythe implied that he had more thoughts on how his interpretation of Thomas's will was the only plausible one and should not be subject to old English rules of interpretation, but he gave himself the same advice Polonius gave to Laertes in Hamlet: "give thy thoughts no tongue."<ref>William Shakespeare, ''Hamlet'': Act I, Scene 3.</ref>

In an appendix to his main analysis, Wythe compared the case of ''Rose v. Bartlett''<ref>79 Eng. Rep. 856, [[First-Third Parts of the Reports of Sr George Croke|Cro. Car.]] 292 (7 Car. I).</ref> from [[First-Third Parts of the Reports of Sr George Croke|''Croke's Reports'']] (which the Supreme Court relied on in ''Minnis v. Aylett'') with a very old unpublished English case called ''Stradling v. Styles'' that had reached a contradictory result. By this, Wythe intended to show that the Supreme Court was picking and choosing the precedent it liked and redefining it as bedrock, long-established principle. Wythe cautioned that if the Supreme Court continued to do this, lawyers would take its lead and argue that the only precedent that needed to be followed would be the cases that agreed with their side.

==Works Cited or Referenced by Wythe==
===Virgil's ''Aeneid''===
Quotation in Wythe's opinion:
<blockquote>
<tt><span style="color: #006600;">For expediting us from its maeanders, our Daedalus, who – ''ipse dolos tecti ambagesque resolvit, / Caeca regeus filo vestigia,'' - the general assembly shewed the clew, execrating, in our system of jurisprudence, every part formed of feudal materials, or fashioned in feudal style.</span></tt> Translation: ''[Daedalus] unraveled the deceptive tangle of corridors, / guiding Theseus’s blind footsteps with the clue of thread.'' Wythe explains that the General Assembly has revealed the underlying feudal origins of contemporary jurisprudence.<ref>Wythe 350. Translation: [http://www.poetryintranslation.com/PITBR/Latin/VirgilAeneidVI.htm#_Toc2242922 A.S. Kline].</ref></blockquote>

===Caesar's ''Civil War''===
Quotation in Wythe's opinion:
<blockquote>
<tt><span style="color: #006600;">''Pompeius ex urbus profectus iter ad legions habebat quas a Caesare acceptas in Apulia hiberuorum causa, DISPOSEUREAT.''</span></tt> Translation: ''Pompey went from the city to the legions, which received from Caesar, he had DISPOSED, that is DISTRIBUTED, in winter quarters in Apulia (Wythe’s translation).'' In this case, Wythe is illustrating the varied meanings of the word "disposed", as this particular word is of contention in the instant case.<ref>Wythe 340.</ref></blockquote>

===Quintus Curtius Rufus's ''Histories of Alexander the Great''===
Quotation in Wythe's opinion:
<blockquote>
<tt><span style="color: #006600;">''...serie vinculorum ita adstricta, ut unde nexus inciperet quove se conderet, nec ratione, nec visu, perspici posset.''</span></tt> Translation: ''[t]hus, constrained by a series of fetters, so that where the bind began or in what way it composed itself, was able to be perceived neither by reason nor vision.'' Wythe uses this image to illustrate the complexities of the English Common Law concerning the execution of wills.<ref>Wythe 349.</ref></blockquote>

===Livy's ''The History of Rome''===
Quotation in Wythe's opinion:
<blockquote>
<tt><span style="color: #006600;">''Scipio retentum secum Laelium, dum captivos obsidesque et praedam ex consilio eius DISPONERET, satis & c. Romam mittit.''</span></tt> Translation: ''Scipio, having retained with him Laelius, until, by his advice, he should DISPOSE, that is DISTRIBUTE, the prisoners, hostages, and plunder, after dispatching these affairs, sends him to Rome (Wythe's translation).'' In this case the exact meaning of "dispose" was central to the dispute, so Wythe turned to classical authority to clarify.<ref>Wythe 340.</ref></blockquote>

===Suetonius's ''Tiberius''===
Quotation in Wythe's opinion:
<blockquote>
<tt><span style="color: #006600;">''DISPONERE diem'' is used by Tacitus, Suetonius, and others, to signify division of the day into portions for particular occupations devoted to each.</span></tt> Translation: ''To dispose the day.'' In this case, Wythe is illustrating the varied meanings of the word "disposed", as this particular word is of contention in the instant case.<ref>Id.</ref></blockquote>

===Suetonius's ''Lives of the Grammarians''===
Quotation in Wythe's opinion:
<blockquote>
<tt><span style="color: #006600;">''Marcus Pomponius Marcellus, cum ex oratione Tiberium reprehendisset, affirmante Ateio Capitone, et esse latinum, et, si non esse, futurum, "certe iam inde mentitur, inquit, Capito. tu enim Caesar, civitatem dare potes hominibus, verbis non potes."''</span></tt> Translation: ''Marcus Pomponius Marcellus, had criticized [a word] in one of Tiberius’ speeches, and Aetius Capito asserted that it was [good] Latin, or if it was not, it would soon be, [Marcellus replied] "Capito lies. For you, Caesar, can confer citizenship on men, but not on words."''<ref>Wythe 347-48.</ref></blockquote>

===Tacitus's ''Germania''===
Quotation in Wythe's opinion:
<blockquote>
<tt><span style="color: #006600;">''DISPONERE diem'' is used by Tacitus, Suetonius, and others, to signify division of the day into portions for particular occupations devoted to each.</span></tt> Translation: ''To dispose the day.'' In this case, Wythe is illustrating the varied meanings of the word "disposed", as this particular word is of contention in the instant case.<ref>Id.</ref></blockquote>
==References==
<references/>

[[Category:Cases]]

Wilkins v. Taylor

2015-02-10T13:39:31Z

Cjhunter:

{{DISPLAYTITLE:''Wilkins v. Taylor''}}
[[File:WytheWilkinsVTaylor1852.jpg|link=Media:WytheDecisions1852WilkinsVTaylor.pdf|thumb|right|300px|First page of the opinion [[Media:WytheDecisions1852WilkinsVTaylor.pdf|''Wilkins v. Taylor'']], in [https://catalog.swem.wm.edu/law/Record/2099031 ''Decisions of Cases in Virginia by the High Court of Chancery, with Remarks upon Decrees by the Court of Appeals, Reversing Some of Those Decisions''], by George Wythe. 2nd ed. (Richmond: J. W. Randolph, 1852).]]
[[Media:WytheDecisions1852WilkinsVTaylor.pdf|''Wilkins v. Taylor'']], Wythe 338 (1799),<ref>George Wythe, ''[[Decisions of Cases in Virginia by the High Court of Chancery|Decisions of Cases in Virginia by the High Court of Chancery with Remarks upon Decrees by the Court of Appeals, Reversing Some of Those Decisions]],'' 2nd ed., ed. B.B. Minor (Richmond: J.W. Randolph, 1852), 338.</ref> involved the interpretation of a will. Wythe used his discussion of this case to contrast his methods of interpreting wills with the Virginia Supreme Court's, and to issue another call for the Virginia Supreme Court to break with English caselaw precedent.
__NOTOC__
==Background==
Thomas Williamson died, and in his will left his daughter Elizabeth Clements I the interest off of £4000 worth of government certificates for Elizabeth I's life. On Elizabeth I's death, the will gave "the interest of the above money, one fourth to each of my grandchildren" Sarah Cocke, Elizabeth Clements II, Francis Clements, and John Clements. When the grandchildren died, their share of the principal and interest from the government funds were to "be disposed by them to their heirs, in such proportions as they, by their wills, respectively, may direct". If Sarah Cocke died "without issue",<ref>In property law, "issue" refers to a person's descendants. Bryan A. Garner, ed., "Issue (3)", ''Black's Law Dictionary'' (St. Paul, MN: Thomson Reuters, 10th ed. 2014).</ref> then her share of the inheritance would go to Elizabeth II.

When Elizabeth I died, Sarah filed a suit in equity in County Court against John Taylor, the executor of Thomas's will, asking for one-fourth of the certificates, which the County Court awarded her. Taylor appealed the County Court's decision to the High Court of Chancery, which reversed it.

After the Chancery Court reversed the County Court's decision, Sarah married Joseph Wilkins.<ref>Sarah's first husband, H. Cocke, had died some time before the Chancery Court issued its first decision.</ref> The Wilkinses filed a bill<ref>During Wythe's time, a woman's legal identity merged with her husband's upon marriage. William Blackstone and St. George Tucker, ''Blackstone's with Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of Virginia'', (Philadelphia: Wm. Young Birch and Abraham Small, 1803): Vol. 2, p. 441.</ref> with the Chancery Court asking it to review its earlier decision. Before the Chancery Court could issue its verdict this time, Sarah died and Joseph Wilkins continued to pursue the bill as administrator of Sarah's estate.
==The Chancery Court's Decision==
The Chancery Court upheld its earlier decree, and said that Sarah was not entitled to one-fourth of the certificates.

Wythe said that Thomas Williamson's will clearly intended that his grandchildren not get ownership over the certificates themselves, just the interest earned off of them. Thomas meant for property interest in the certificates to go to the grandchildren's heirs. Wythe said the rule of ''[[Shermer v. Richardson]]''<ref>Wythe 159.</ref> did not apply in this situation. In ''Shermer'', Wythe said that a widow got full rights in property when the will gave her the right to use it during her lifetime plus the power to designate anyone she wanted to inherit it after her death. In the Wilkinses case, however, Thomas's will said that the certificates would go to the grandchildren's heirs, meaning the grandchildren's children. In ''Shermer'', the will specifically stated that the widow could pick anyone she wished to designate as an heir. In addition, Thomas's will said that if Sarah died without children, her share in the interest would go to Elizabeth II. Allowing Sarah - or any of Thomas's grandchildren - to have full rights in the certificates to use or give in any way they pleased would run counter to Thomas's desire as expressed in his will.
==In the Virginia Supreme Court==
Wilkins appealed Wythe's decision to the Virginia Supreme Court of Appeals, which unanimously reversed Wythe and reinstated the County Court's decision.<ref>''Wilkins v. Taylor'', 9 Va. (5 Call) 150 (1804).</ref>

The Supreme Court said that it already decided the issue in its decision of ''Goodwin v. Taylor''<ref>8 Va. (4 Call) 305 (1795).</ref>, in which the estate administrator of another of Thomas Williamson's heirs, Elizabeth II, sued to get a one-fourth share of the certificates.<ref>This case also found its way to the Chancery Court. As with ''Wilkins'', Wythe rejected the heir's request (in an unpublished opinion) and was reversed by the Supreme Court. Wythe likely had had his fill of this family by now.</ref> In ''Goodwin'', the Court said that when Thomas's will gave the grandchildren the right to award the certificates to heirs, it gave the grandchildren full property rights in those certificates.

According to the Court, the only difference in Wilkins's case was that the will also said that if Sarah died "without issue", then Sarah's share would go to Elizabeth II. The majority of the Court said that becuase the will did not set a time limit, the possibility of dying without any descendants at all was so remote that the restriction in the will was void.

==Wythe's Discussion==
Wythe began his discussion by dissecting the language in Thomas's will. Wythe paid particular attention to the word "disposed", using examples from [[Caii Julii Caesaris et A. Hirtii de Rebus a Caesare Gestis Commentarii|Caesar's ''Commentaries on the Civil War'']], [[Titi Livii Historiarum Quod Extat|Livy's ''Books from the Foundation of the City'']], and [[D. Junii Juvenalis et A. Persii Flacci Satyrae|Juvenal's ''Satyrae'']], and cited the works of [https://en.wikipedia.org/wiki/Tacitus Tacitus] and [https://en.wikipedia.org/wiki/Suetonius Suetonius] to establish that to "dispose" of something only meant to distribute it under someone else's direction. Therefore, the will's language directing the grandchildren to "dispose" of the certificates did not give them property rights in the certificates, only the responsibility to distribute them to their heirs.

Wythe continued by saying that defining "heirs" as the children of Thomas's grandchildren did not create an unreasonably indefinite condition. At the longest, one would know no later than nine months after each grandchild died whether that grandchild had produced an heir.

After Wythe's own interpretation of the language in Thomas's will, he proceeded to examine the common law on will interpretation. One of Wythe's biographers, Robert Kirtland, says that one of Wythe's biggest complaints about the Supreme Court was its use of highly technical rules of construction to interpret wills often written by poorly-educated rural Virginians.<ref>Robert B. Kirtland, ''George Wythe: Lawyer, Revolutionary, Judge'' (New York: Garland Publishing, Inc., 1986): 258.</ref> Kirtland nicely summarizes how Wythe used the ''Wilkins'' case as an opportunity to contrast his method of interpreting wills with the Supreme Court's - using some of [[Edmund Pendleton]]'s previous opinions as examples.<ref>Kirtland (1986): 258-62.</ref> Wythe published this opinion and his discussion before the Supreme Court heard Wilkins's appeal. Pendleton died in 1803, so Wythe's long-time ''bête noire'' was not on the Supreme Court when this case arrived there. [https://en.wikipedia.org/wiki/Peter_Lyons_%28Virginia_judge%29 Peter Lyons] was the new President of the Supreme Court, and Wythe's former student (and successor as William & Mary's Professor of Law and Police) [[St. George Tucker]] had joined its bench.

Wythe also called upon classic works from various ages to bolster and illustrate his argument. Wythe quoted [[C. Suetonii Tranquilli Opera Omnia Quae Extant|Suetonius's histories of the grammaticians]] when he said that judges have no more power to unilaterally change an everyday word's meaning than Caesar did to give a word citizenship.<ref>''"cum ex oratione Tiberi verbum reprehendisset, affirmante Ateio Capitone, et esse illud Latinum, et si non esset, futurum certe iam inde: 'Mentitur,' inquit, 'Capito; tu enim, Caesar, civitatem dare potes hominibus, verbo non potes.'"'' Suetonis, ''De Grammaticis'' 22. Here, Suetonis describes a time when grammarian Marcus Pomponius Marcellus criticized a word [https://en.wikipedia.org/wiki/Tiberius Emperor Tiberius] used in a speech. [https://en.wikipedia.org/wiki/Gaius_Ateius_Capito_%28jurist%29 Gaius Ateius Capito] argued that if the word was not proper Latin, it certainly was now that the emperor had used it. Marcellus replied that the emperor might be able to naturalize people, but not words. Wythe left out the first part of the paragraph, in which Suetonis describes Marcellus as ''"sermonis Latini exactor molestissimus"'', which could be translated as "a tiresome (or annoying) enforcer of Latin diction". One translator of Suetonis's works, J.C. Rolfe, used the phrase "a most pedantic critic of the Latin language". [http://penelope.uchicago.edu/Thayer/E/Roman/Texts/Suetonius/de_Grammaticis*.html#22 Suetonius, ed. by J.C. Rolfe, ''Lives of the Caesars, Volume II'' (Cambridge, MA: Harvard Univ. Press, 1914): 428-9].</ref>

Even though Pendleton said in ''Shermer v. Shermer's Executor'' that caselaw precedent must be strong, uniform, and on point before he would allow it to frustrate a testator's intent,<ref>''Shermer'', 1 Va. at 273.</ref> he lamented that he was caught in a [https://en.wikipedia.org/wiki/Gordian_Knot Gordian knot] tied by years of English judges creating conflicting interpretive canons inspired by the feudal system. If only those judges had simply cut that knot!<ref>''Kennon v. McRoberts'', 1 Va. (1 Wash.) 96, 102 (1792).</ref> Wythe used this quote from Pendleton as a segue to [https://en.wikipedia.org/wiki/Quintus_Curtius_Rufus Quintus Curtius Rufus's] description of the Gordian knot in his biography of Alexander the Great.<ref>[http://penelope.uchicago.edu/Thayer/L/Roman/Texts/Curtius/3*.html Q. Curti Rufi, ''Historiam Alexandri Magni Macedonis'', Lib. III, Cap. I.]</ref> If Pendleton thinks that English judges should have cut this knot of confusing canons, then why has Pendleton not simply done the job itself? The only people who benefit from these hoary interpretive rules are, to use the [[Holy Bible|biblical]] phrase, those who "by this craft. . .have their wealth".<ref>Acts 19:25.</ref>

Wythe also alluded to [[Publii Virgilii Maronis Bucolica, Georgica, et Aeneis|Virgil's ''Aeneid'']] in his discussion. When the Virginia Assembly eliminated the feudal system, Wythe said, it acted as [https://en.wikipedia.org/wiki/Daedalus#The_Labyrinth Daedalus] to the judges' [https://en.wikipedia.org/wiki/Theseus#The_myth_of_Theseus_and_the_Minotaur Theseus],<ref>Virgil, ''Aeneis'': Lib. VI, lines 29-30. According to legend, Daedalus created the Labyrinth for King Minos of Crete to house the Minotaur. The reason varies depending on the story, but Athens sent several youths to Crete at regular intervals to be sacrificed to the Minotaur. Theseus went to Crete to kill the Minotaur and stop the sacrifices. When Theseus arrived in Crete, Minos's daughter Ariadne instantly fell in love with him. Daedalus felt sorry for Ariadne and gave her a thread to give to Theseus, along with instructions on how to escape the Labyrinth.</ref> showing the way out of the gloom of outdated interpretive rules.

Wythe implied that he had more thoughts on how his interpretation of Thomas's will was the only plausible one and should not be subject to old English rules of interpretation, but he gave himself the same advice Polonius gave to Laertes in Hamlet: "give thy thoughts no tongue."<ref>William Shakespeare, ''Hamlet'': Act I, Scene 3.</ref>

In an appendix to his main analysis, Wythe compared the case of ''Rose v. Bartlett''<ref>79 Eng. Rep. 856, [[First-Third Parts of the Reports of Sr George Croke|Cro. Car.]] 292 (7 Car. I).</ref> from [[First-Third Parts of the Reports of Sr George Croke|''Croke's Reports'']] (which the Supreme Court relied on in ''Minnis v. Aylett'') with a very old unpublished English case called ''Stradling v. Styles'' that had reached a contradictory result. By this, Wythe intended to show that the Supreme Court was picking and choosing the precedent it liked and redefining it as bedrock, long-established principle. Wythe cautioned that if the Supreme Court continued to do this, lawyers would take its lead and argue that the only precedent that needed to be followed would be the cases that agreed with their side.

==Works Cited or Referenced by Wythe==
===Virgil's ''Aeneid''===
Quotation in Wythe's opinion:
<blockquote>
<tt><span style="color: #006600;">For expediting us from its maeanders, our Daedalus, who – ''ipse dolos tecti ambagesque resolvit, / Caeca regeus filo vestigia,'' - the general assembly shewed the clew, execrating, in our system of jurisprudence, every part formed of feudal materials, or fashioned in feudal style.
</span></tt> Translation: ''[Daedalus] unraveled the deceptive tangle of corridors, / guiding Theseus’s blind footsteps with the clue of thread.'' Wythe explains that the General Assembly has revealed the underlying feudal origins of contemporary jurisprudence.<ref>Wythe 350. Translation: [http://www.poetryintranslation.com/PITBR/Latin/VirgilAeneidVI.htm#_Toc2242922 A.S. Kline].</ref></blockquote>
==References==
<references/>

[[Category:Cases]]

D. Junii Juvenalis et A. Persii Flacci Satyrae

2015-02-04T19:54:19Z

Cjhunter:

{{DISPLAYTITLE:''D. Junii Juvenalis et A. Persii Flacci Satyrae''}}
===by Juvenal and Persius===
__NOTOC__
{{BookPageInfoBox
|imagename=DJuniiJuvenalisEtAPersiiFlacciSatyrae1691TitlePage.jpg
|link=https://catalog.swem.wm.edu/Record/3621440
|shorttitle=D. Junii Juvenalis et A. Persii Flacci Satyrae
|author=Juvenal and Persius
|lang=Latin
|publoc=Londini
|publisher=Impensis Tho. Dring, contra Hospitium Templariorum in vico Fleetstreet dicto, & Abel Swalle, ad insigne Monocerotis in Ludgatestreet
|year=1691
|pages=[16], 320, 319-414, [92]
|desc=8 vo.
}}Historians believe [http://en.wikipedia.org/wiki/Juvenal Juvenal] (Decimus Iunius Iuvenalis), c. 55 C.E. – 140 C.E., was probably a native Italian, born in Aquinum (modern day Aquino, in southern Italy).<ref>Gilbert Highet, "The Life of Juvenal," ''Transactions and Proceedings of the American Philological Association'' 68, (1937): 485, accessed October 16, 2014.</ref> His parents were not noble, but were likely free-born. We know nothing of Juvenal’s middle age, but historians surmise that he lived in relative poverty, as his ''Satyrae'' shows a "greater knowledge of poverty than any other Roman author possessed."<ref>Ibid.</ref> Martial, a Roman poet and Juvenal’s contemporary, mentions Juvenal twice.<ref>''The Hutchinson Unabridged Encyclopedia'', s.v. "[http://search.credoreference.com/content/entry/heliconhe/juvenal_c_ad_60_140/0 Juvenal (c. AD 60-140)]" (Abington: Helicon, 2014), accessed October 16, 2014.</ref>

Juvenal wrote ''Satyrae'' (''The Satires'') c. 100-130 C.E.; scant datable references in the work make more precise dating impossible. ''The Satires'' is series of 16 satirical poems, divided between 5 books. The poems meditate on life in Rome under the Emperor Domitian, and his (more benevolent) successors. ''The Satires'' are especially well known for their uniquely caustic style, which is often contrasted with the urbane and witty style of Juvenal’s predecessor, Horace.<ref>''The Concise Oxford Companion to English Literature'', s.v. "Juvenal," ed. Dinah Birch and Katy Hooper (Oxford: Oxford University Press, 2012).</ref> Some of Juvenal’s popular wisdom remains in common parlance today. We have Juvenal to thank for the maxims: "who will guard the guards themselves?" (''sed quis custodiet ipsos custodies?''), and "only two things does [the modern citizen] anxiously wish for—bread and circuses" (''…duas tantum res anxius optat,
panem et circenses'').<ref>''Oxford Essential Quotations'', s.v. "[http://www.oxfordreference.com/view/10.1093/acref/9780191735240.001.0001/q-oro-00006120 Juvenal]," ed. Susan Ratcliffe (Oxford: Oxford University Press, 2014), accessed October 16, 2014.</ref>

[http://en.wikipedia.org/wiki/Persius Persius] (Aulus Persius Flaccus) was born in Volterrae, Etruria (close to modern-day Florence) on 4 December 34 CE. He was a member of a well-established family and came to Rome at the age of twelve to study under Cornutus (a Stoic, and a successful teacher of rhetoric and philosophy). A contemporary biographer described Persius as “infrequently” composing Roman satire, and only late in his short life.<ref>William S. Anderson, "Persius (A.D. 34–62) Juvenal (A.D. 60?–140?)" in ''Ancient Writers: Greece and Rome Vol. 2'', ed. T. James Luce (New York: Charles Scribner's Sons, 1982), 858.</ref> The entire corpus of Persius’s work runs to a mere 650 lines of hexameter verse. Persius died of natural causes at the age of twenty-eight, in 62 CE.

==Evidence for Inclusion in Wythe's Library==
Listed in the [[Jefferson Inventory]] of [[Wythe's Library]] as "Juvenalis et Persius. Delph. 8vo." and given by [[Thomas Jefferson]] to his grandson [[Thomas Jefferson Randolph]]. The [https://digitalarchive.wm.edu/handle/10288/13433 Brown Bibliography]<ref>Bennie Brown, "The Library of George Wythe of Williamsburg and Richmond," (unpublished manuscript, May, 2012, rev. May, 2014) Microsoft Word file. Earlier edition available at: https://digitalarchive.wm.edu/handle/10288/13433.</ref> lists the 1699 Delphini edition published in London. [http://www.librarything.com/profile/GeorgeWythe George Wythe's Library]<ref>''LibraryThing'', s.v. "[http://www.librarything.com/profile/GeorgeWythe Member: George Wythe]," accessed on February 3, 2015.</ref> on LibraryThing states "Precise edition unknown. Several editions were published, the first in 1691." [[Dean Bibliography|Dean's Memo]] suggests Wythe read ''Ivn, Ivvenalis Satyrae XVI. A. Persil Satyrae VI. Ad Vetustiss, Scripta Exeplaria Emendatae: quorum Varias Lectiones ad Calcem Reiecimus'', published in Paris (Lvtetiae) in 1544.<ref>[[Dean Bibliography|Memorandum from Barbara C. Dean]], Colonial Williamsburg Found., to Mrs. Stiverson, Colonial Williamsburg Found. (June 16, 1975), 10 (on file at Wolf Law Library, College of William & Mary).</ref> Since the edition Wythe owned cannot be determined, the Wolf Law Library purchased an available copy of 1691 Delphini edition published in London.

==Description of the Wolf Law Library's copy==
Bound in contemporary calf with stamped rule and filigree design to cover, five bands to spine.

Find this book in [https://catalog.swem.wm.edu/Record/3621440 William & Mary Online Catalog]
==References==
<references/>

[[Category:George Wythe Collection at William & Mary's Wolf Law Library]]
[[Category:Latin Literature]]
[[Category:Titles in Wythe's Library]]

D. Junii Juvenalis et A. Persii Flacci Satyrae

2015-02-04T19:49:07Z

Cjhunter:

{{DISPLAYTITLE:''D. Junii Juvenalis et A. Persii Flacci Satyrae''}}
===by Juvenal and Persius===
__NOTOC__
{{BookPageInfoBox
|imagename=DJuniiJuvenalisEtAPersiiFlacciSatyrae1691TitlePage.jpg
|link=https://catalog.swem.wm.edu/Record/3621440
|shorttitle=D. Junii Juvenalis et A. Persii Flacci Satyrae
|author=Juvenal and Persius
|lang=Latin
|publoc=Londini
|publisher=Impensis Tho. Dring, contra Hospitium Templariorum in vico Fleetstreet dicto, & Abel Swalle, ad insigne Monocerotis in Ludgatestreet
|year=1691
|pages=[16], 320, 319-414, [92]
|desc=8 vo.
}}Historians believe [http://en.wikipedia.org/wiki/Juvenal Juvenal] (Decimus Iunius Iuvenalis), c. 55 C.E. – 140 C.E., was probably a native Italian, born in Aquinum (modern day Aquino, in southern Italy).<ref>Gilbert Highet, "The Life of Juvenal," ''Transactions and Proceedings of the American Philological Association'' 68, (1937): 485, accessed October 16, 2014.</ref> His parents were not noble, but were likely free-born. We know nothing of Juvenal’s middle age, but historians surmise that he lived in relative poverty, as his ''Satyrae'' shows a "greater knowledge of poverty than any other Roman author possessed."<ref>Ibid.</ref> Martial, a Roman poet and Juvenal’s contemporary, mentions Juvenal twice.<ref>''The Hutchinson Unabridged Encyclopedia'', s.v. "[http://search.credoreference.com/content/entry/heliconhe/juvenal_c_ad_60_140/0 Juvenal (c. AD 60-140)]" (Abington: Helicon, 2014), accessed October 16, 2014.</ref>

Juvenal wrote ''Satyrae'' (''The Satires'') c. 100-130 C.E.; scant datable references in the work make more precise dating impossible. ''The Satires'' is series of 16 satirical poems, divided between 5 books. The poems meditate on life in Rome under the Emperor Domitian, and his (more benevolent) successors. ''The Satires'' are especially well known for their uniquely caustic style, which is often contrasted with the urbane and witty style of Juvenal’s predecessor, Horace.<ref>''The Concise Oxford Companion to English Literature'', s.v. "Juvenal," ed. Dinah Birch and Katy Hooper (Oxford: Oxford University Press, 2012).</ref> Some of Juvenal’s popular wisdom remains in common parlance today. We have Juvenal to thank for the maxims: "who will guard the guards themselves?" (''sed quis custodiet ipsos custodies?''), and "only two things does [the modern citizen] anxiously wish for—bread and circuses" (''…duas tantum res anxius optat,
panem et circenses'').<ref>''Oxford Essential Quotations'', s.v. "[http://www.oxfordreference.com/view/10.1093/acref/9780191735240.001.0001/q-oro-00006120 Juvenal]," ed. Susan Ratcliffe (Oxford: Oxford University Press, 2014), accessed October 16, 2014.</ref>

Aulus Persius Flaccus (Persius) was born in Volterrae, Etruria (close to modern-day Florence) on 4 December 34 CE. He was a member of a well-established family and came to Rome at the age of twelve to study under Cornutus (a Stoic, and a successful teacher of rhetoric and philosophy). A contemporary biographer described Persius as “infrequently” composing Roman satire, and only late in his short life.<ref>William S. Anderson, "Persius (A.D. 34–62) Juvenal (A.D. 60?–140?)" in ''Ancient Writers: Greece and Rome Vol. 2'', ed. T. James Luce (New York: Charles Scribner's Sons, 1982), 858.</ref> The entire corpus of Persius’s work runs to a mere 650 lines of hexameter verse. Persius died of natural causes at the age of twenty-eight, in 62 CE.

==Evidence for Inclusion in Wythe's Library==
Listed in the [[Jefferson Inventory]] of [[Wythe's Library]] as "Juvenalis et Persius. Delph. 8vo." and given by [[Thomas Jefferson]] to his grandson [[Thomas Jefferson Randolph]]. The [https://digitalarchive.wm.edu/handle/10288/13433 Brown Bibliography]<ref>Bennie Brown, "The Library of George Wythe of Williamsburg and Richmond," (unpublished manuscript, May, 2012, rev. May, 2014) Microsoft Word file. Earlier edition available at: https://digitalarchive.wm.edu/handle/10288/13433.</ref> lists the 1699 Delphini edition published in London. [http://www.librarything.com/profile/GeorgeWythe George Wythe's Library]<ref>''LibraryThing'', s.v. "[http://www.librarything.com/profile/GeorgeWythe Member: George Wythe]," accessed on February 3, 2015.</ref> on LibraryThing states "Precise edition unknown. Several editions were published, the first in 1691." [[Dean Bibliography|Dean's Memo]] suggests Wythe read ''Ivn, Ivvenalis Satyrae XVI. A. Persil Satyrae VI. Ad Vetustiss, Scripta Exeplaria Emendatae: quorum Varias Lectiones ad Calcem Reiecimus'', published in Paris (Lvtetiae) in 1544.<ref>[[Dean Bibliography|Memorandum from Barbara C. Dean]], Colonial Williamsburg Found., to Mrs. Stiverson, Colonial Williamsburg Found. (June 16, 1975), 10 (on file at Wolf Law Library, College of William & Mary).</ref> Since the edition Wythe owned cannot be determined, the Wolf Law Library purchased an available copy of 1691 Delphini edition published in London.

==Description of the Wolf Law Library's copy==
Bound in contemporary calf with stamped rule and filigree design to cover, five bands to spine.

Find this book in [https://catalog.swem.wm.edu/Record/3621440 William & Mary Online Catalog]
==References==
<references/>

[[Category:George Wythe Collection at William & Mary's Wolf Law Library]]
[[Category:Latin Literature]]
[[Category:Titles in Wythe's Library]]

Goodall v. Bullock

2015-02-03T15:27:10Z

Cjhunter:

{{DISPLAYTITLE:''Goodall v. Bullock''}}
[[File:WytheGoodallVBullock1852.jpg|link=Media:WytheDecisions1852GoodallVBullock.pdf|thumb|right|300px|First page of the opinion [[Media:WytheDecisions1852GoodallVBullock.pdf|''Goodall v. Bullock'']], in [https://catalog.swem.wm.edu/law/Record/2099031 ''Decisions of Cases in Virginia by the High Court of Chancery, with Remarks upon Decrees by the Court of Appeals, Reversing Some of Those Decisions''], by George Wythe. 2nd ed. (Richmond: J. W. Randolph, 1852).]]
[[Media:WytheDecisions1852GoodallVBullock.pdf|''Goodall v. Bullock'']], Wythe 328 (1798),<ref>George Wythe, ''[[Decisions of Cases in Virginia by the High Court of Chancery|Decisions of Cases in Virginia by the High Court of Chancery with Remarks upon Decrees by the Court of Appeals, Reversing Some of Those Decisions]],'' 2nd ed., ed. B.B. Minor (Richmond: J.W. Randolph, 1852), 328.</ref> discussed whether a sheriff could be fined because his deputy did not finish executing a writ, even the person who filed the writ is the person who asked the deputy not to finish executing it. The opinion is notable for Wythe's discussion of the principles underlying a court of equity's powers in which Wythe refers to several classical Greek and Roman sources and stories.
__NOTOC__
==Background==
Parke Goodall was Sheriff of Hanover County, and John Clough was one of his deputies.

John Bullock sued his father, who went by the same name, and won a judgment for about £497. Bullock the younger delivered a writ of ''fieri facias''<ref>A writ of ''fieri facias'' orders the sheriff to get goods from a person to satisfy a judgment against that person.</ref> to Clough in May 1792 to be executed against Bullock the elder's property. Clough seized Bullock the elder's entire estate under the writ and sold it to Bullock the younger in June 1792 for about £206.

Clough never returned the writ to court with notations on what actions he had taken using the writ's power - a process called ''returning the execution''. Returning the execution could have led to further court proceedings against Bullock the elder. The reason for this was disputed. Clough said that in 1795 Bullock the younger asked him to delay returning the execution until the court costs were settled. To support Clough's claim, a third-party witness, William L. Thompson, said that they heard Bullock the younger say he wished Clough would not return the execution until the Bullocks settled with each other. Bullock the younger answered that he never asked Clough to delay returning the execution, but rather repeatedly asked Clough to return the execution after he had seized Bullock the elder's property.

Bullock the younger sued Goodall and Clough in Hanover County Court for failure to return the execution of a writ, and on May 7, 1795, the court fined Goodall about £264 to be paid to Bullock the younger, under the authority of a 1791 Virginia statute.

Clough successfully returned the execution in June 1795. Goodall successfully sued Clough to reimburse Goodall for the fine Goodall owed Bullock the younger. Goodall and Clough filed a bill with the High Court of Chancery asking it to permanently enjoin the Hanover County Court's judgment in favor of Bullock the younger, and Goodall agreed to wait to collect on his judgment against Clough until the proceedings in the Chancery Court concluded.

Bullock the younger argued that because the 1791 statute gave the county court discretion in the amount of the fine to award, the Chancery Court would be improperly usurping the court of law's appellate jurisdiction by issuing an injunction. Therefore, Bullock the younger said, the Chancery Court should dismiss Goodall and Clough's case.
==The Court's Decision==
The High Court of Chancery issued permanent injunctions against Bullock the younger from collecting his judgment against Goodall, and against Goodall from collecting against Clough. The Court said that it was possible for both Thompson's and Bullock the younger's statements to be true. Bullock could have initially asked Clough to return the execution, but then changed his mind three years later when Thompson's testimony took place.

The Chancery Court shot down Bullock the younger's argument that it was usurping legal courts' appellate authority. Chapter 9 of the 1787 Virginia statutes prohibited the Chancery Court from refusing to hear a case due to lack of jurisdiction, or to delay or refuse justice. The Chancery Court noted that when Clough returned the execution in June 1795, he placed all the parties in their proper state, which means there would have been no basis for fining Clough. Since the return happened after the county court issued its judgment, though, there was no way for the county court to alter its opinion to put the parties in their proper state. The Chancery Court concluded that this situation was therefore a fine case for equitable relief.

The Court also noted that, as Bullock the younger admitted, Bullock the elder had no more property to seize to satisfy the rest of the award. Returning the execution and proceeding further in court would likely lead to prison for Bullock the elder, which Bullock the younger said he did not want. Because Bullock the younger had nothing to gain by Clough returning the execution, Bullock the younger could not have been injured by Clough's actions.

The Chancery Court said that fining Goodall would lead to the perverse result of Bullock the younger being in a better position by Clough not returning the execution than by Clough returning it. Moreover, because Thompson's indicated that Bullock the younger told Clough there was no hurry in returning the execution, then sued Clough for not promptly returning it, the Chancery Court found that Bullock the younger was "guilty of a foul fraud. . .venial in the eyes of [https://en.wikipedia.org/wiki/Edward_Coke Edward Coke]".

The Chancery Court also said that the county court seemed to be unaware of Bullock the younger's fraud. Even so, the Chancery Court noted that the county court did not make much use of its statutory discretion and hit Goodall with almost the maximum possible fine. The Chancery Court goes into the etymological origins of the word "discretion" to emphasize that even if the county court felt a fine proper, it should have adjusted the fine to fit the harm.

The Court proceeds to review the principles underlying the court of equity's powers to justify its action in this case, even when involving a penalty authorized by statute. The Court calls on humanity's instinct for sympathy and cites the [https://en.wikipedia.org/wiki/Golden_Rule Golden Rule] along with a quote from the play [[Publii Terentii Afri Comoediae Sex|Heauton timorumenos]]: ''"Homo sum, humani nihil a me alienum puto."'' ("I am a human being, I consider nothing that is human alien to me.")<ref>Terence, "Publii Terentii Afri Comoediae Sex", in ''Publii Terentii Afri Comoediae Sex'' (Glasguae: Cura & impensis Roberti Foulis, typis Roberti Urie & soc., 1742).</ref>

The Court's opinion by Wythe proceeds with several hypotheticals involving [https://en.wikipedia.org/wiki/Gnaeus_Julius_Agricola Agricola] selling corn to Mercator to show how one person could technically breach a contract and be subject to a severe penalty, even though that breach might have put the other party in a better position than if the contract had been fulfilled.<ref>These hypotheticals include an interesting footnote (presumably from Wythe) that indicates that the phrase "a penny saved is a penny earned" goes back quite earlier than [https://en.wikipedia.org/wiki/Benjamin_Franklin Poor Richard]; it is a translation of [https://en.wikipedia.org/wiki/Cicero Cicero's] phrase ''magnum vectigal fit parsimonia'' from his Sixth Paradox.</ref> In such situations, courts of law would traditionally require Agricola to pay Mercator to pay the full penalty for breaching the contract -- even if the breach put Mercator in a better position -- because that was what the law dictated. The Court uses a quote from [[Titi Livii Historiarum Quod Extat|Livy's Histories]] to describe the traditional law: ''leges rem surdam, inexorabilem esse. . .nihil laxamenti nec veniae habere'' ("the law was a deaf inexorable being. . .admitted of no relaxation or indulgence.")<ref>Livy, ''Titi Livii Historiarum Quod Extat'', Lib. II, Cap. 3 (Amstelodami: Apud D. Elzevirium, 1678). Wythe seems to be guilty of cherry-picking a quote here. He omitted the middle of Levi's phrase, which reads in full, "leges rem surdam, inexorabilem esse, salubriorem melioremque inopi quam potenti; nihil laxamenti nec veniae habere, si modum excesseris" ("the law was a deaf inexorable being, better and more beneficial for the disadvantaged than the powerful, admitted of no relaxation or indulgence.") Livy seemed to view the law's intrangience as a benefit, offering greater equality for the lower classes, while Wythe altered Livy's sentence to show this inexorability as a flaw.</ref> Wythe views the court of equity as an embodiment of justice such as Pallas Athena in [https://en.wikipedia.org/wiki/Orestes#Aeschylus Aeschylus's rendering of the tale of Orestes], conjuring a just and fair verdict when the letter of the law might dictate otherwise. This, the Chancery Court says, is why a court of equity such as it has the power to dissolve the injunction Bullock won, whether the injunction was given by the power of a statute or of common law.

==Works Cited or Referenced by Wythe==
===Cicero's ''Stoic Paradoxes''===
Quotation in Wythe's opinion:
<blockquote>
<tt><span style="color: #006600;">Ciceros ''magnum vectigal fit parsimonia''...is translated, by english lexicographers, ‘a penny saved is a penny got.’</span></tt> Translation: ''Frugality makes great revenue.''<ref>Wythe 335.</ref></blockquote>

===Livy's ''History of Rome''===
Quotation in Wythe's opinion:
<blockquote>
<tt><span style="color: #006600;">''[L]eges rem surdam, inexorabilem esse, - nihil laxamenti nec veniae habere.''</span></tt> Translation: ''[L]aws are deaf things, inexorable – they do not consider relaxing or pardon.'' Wythe uses this to illustrate how the law has viewed the stringency of contracts.<ref>Ibid.</ref></blockquote>

===Terence's ''The Self-Tormentor''===
Quotation in Wythe's opinion:
<blockquote>
<tt><span style="color: #006600;">''[H]omo sum: humani nihil a me alienum puto.''</span></tt> Translation: ''I am a human being: I consider nothing that is human alien to me.''<ref>Ibid 334.</ref></blockquote>

===Aeschylus's ''The Eumenides''===
Quotation in Wythe's opinion:
<blockquote>
<tt><span style="color: #006600;">[T]he design of the law compelling payment of penalties for non-performance of contracts was that the delinquent parties should make ''αντιδοσισ (antidosis)'', and thereby do justice.</span></tt> Translation: ''an exchange.''<ref>Ibid 336.</ref></blockquote>
==References==
<references/>

[[Category:Cases]]

Goodall v. Bullock

2015-02-03T15:26:14Z

Cjhunter:

{{DISPLAYTITLE:''Goodall v. Bullock''}}
[[File:WytheGoodallVBullock1852.jpg|link=Media:WytheDecisions1852GoodallVBullock.pdf|thumb|right|300px|First page of the opinion [[Media:WytheDecisions1852GoodallVBullock.pdf|''Goodall v. Bullock'']], in [https://catalog.swem.wm.edu/law/Record/2099031 ''Decisions of Cases in Virginia by the High Court of Chancery, with Remarks upon Decrees by the Court of Appeals, Reversing Some of Those Decisions''], by George Wythe. 2nd ed. (Richmond: J. W. Randolph, 1852).]]
[[Media:WytheDecisions1852GoodallVBullock.pdf|''Goodall v. Bullock'']], Wythe 328 (1798),<ref>George Wythe, ''[[Decisions of Cases in Virginia by the High Court of Chancery|Decisions of Cases in Virginia by the High Court of Chancery with Remarks upon Decrees by the Court of Appeals, Reversing Some of Those Decisions]],'' 2nd ed., ed. B.B. Minor (Richmond: J.W. Randolph, 1852), 328.</ref> discussed whether a sheriff could be fined because his deputy did not finish executing a writ, even the person who filed the writ is the person who asked the deputy not to finish executing it. The opinion is notable for Wythe's discussion of the principles underlying a court of equity's powers in which Wythe refers to several classical Greek and Roman sources and stories.
__NOTOC__
==Background==
Parke Goodall was Sheriff of Hanover County, and John Clough was one of his deputies.

John Bullock sued his father, who went by the same name, and won a judgment for about £497. Bullock the younger delivered a writ of ''fieri facias''<ref>A writ of ''fieri facias'' orders the sheriff to get goods from a person to satisfy a judgment against that person.</ref> to Clough in May 1792 to be executed against Bullock the elder's property. Clough seized Bullock the elder's entire estate under the writ and sold it to Bullock the younger in June 1792 for about £206.

Clough never returned the writ to court with notations on what actions he had taken using the writ's power - a process called ''returning the execution''. Returning the execution could have led to further court proceedings against Bullock the elder. The reason for this was disputed. Clough said that in 1795 Bullock the younger asked him to delay returning the execution until the court costs were settled. To support Clough's claim, a third-party witness, William L. Thompson, said that they heard Bullock the younger say he wished Clough would not return the execution until the Bullocks settled with each other. Bullock the younger answered that he never asked Clough to delay returning the execution, but rather repeatedly asked Clough to return the execution after he had seized Bullock the elder's property.

Bullock the younger sued Goodall and Clough in Hanover County Court for failure to return the execution of a writ, and on May 7, 1795, the court fined Goodall about £264 to be paid to Bullock the younger, under the authority of a 1791 Virginia statute.

Clough successfully returned the execution in June 1795. Goodall successfully sued Clough to reimburse Goodall for the fine Goodall owed Bullock the younger. Goodall and Clough filed a bill with the High Court of Chancery asking it to permanently enjoin the Hanover County Court's judgment in favor of Bullock the younger, and Goodall agreed to wait to collect on his judgment against Clough until the proceedings in the Chancery Court concluded.

Bullock the younger argued that because the 1791 statute gave the county court discretion in the amount of the fine to award, the Chancery Court would be improperly usurping the court of law's appellate jurisdiction by issuing an injunction. Therefore, Bullock the younger said, the Chancery Court should dismiss Goodall and Clough's case.
==The Court's Decision==
The High Court of Chancery issued permanent injunctions against Bullock the younger from collecting his judgment against Goodall, and against Goodall from collecting against Clough. The Court said that it was possible for both Thompson's and Bullock the younger's statements to be true. Bullock could have initially asked Clough to return the execution, but then changed his mind three years later when Thompson's testimony took place.

The Chancery Court shot down Bullock the younger's argument that it was usurping legal courts' appellate authority. Chapter 9 of the 1787 Virginia statutes prohibited the Chancery Court from refusing to hear a case due to lack of jurisdiction, or to delay or refuse justice. The Chancery Court noted that when Clough returned the execution in June 1795, he placed all the parties in their proper state, which means there would have been no basis for fining Clough. Since the return happened after the county court issued its judgment, though, there was no way for the county court to alter its opinion to put the parties in their proper state. The Chancery Court concluded that this situation was therefore a fine case for equitable relief.

The Court also noted that, as Bullock the younger admitted, Bullock the elder had no more property to seize to satisfy the rest of the award. Returning the execution and proceeding further in court would likely lead to prison for Bullock the elder, which Bullock the younger said he did not want. Because Bullock the younger had nothing to gain by Clough returning the execution, Bullock the younger could not have been injured by Clough's actions.

The Chancery Court said that fining Goodall would lead to the perverse result of Bullock the younger being in a better position by Clough not returning the execution than by Clough returning it. Moreover, because Thompson's indicated that Bullock the younger told Clough there was no hurry in returning the execution, then sued Clough for not promptly returning it, the Chancery Court found that Bullock the younger was "guilty of a foul fraud. . .venial in the eyes of [https://en.wikipedia.org/wiki/Edward_Coke Edward Coke]".

The Chancery Court also said that the county court seemed to be unaware of Bullock the younger's fraud. Even so, the Chancery Court noted that the county court did not make much use of its statutory discretion and hit Goodall with almost the maximum possible fine. The Chancery Court goes into the etymological origins of the word "discretion" to emphasize that even if the county court felt a fine proper, it should have adjusted the fine to fit the harm.

The Court proceeds to review the principles underlying the court of equity's powers to justify its action in this case, even when involving a penalty authorized by statute. The Court calls on humanity's instinct for sympathy and cites the [https://en.wikipedia.org/wiki/Golden_Rule Golden Rule] along with a quote from the play [[Publii Terentii Afri Comoediae Sex|Heauton timorumenos]]: ''"Homo sum, humani nihil a me alienum puto."'' ("I am a human being, I consider nothing that is human alien to me.")<ref>Terence, "Publii Terentii Afri Comoediae Sex", in ''Publii Terentii Afri Comoediae Sex'' (Glasguae: Cura & impensis Roberti Foulis, typis Roberti Urie & soc., 1742).</ref>

The Court's opinion by Wythe proceeds with several hypotheticals involving [https://en.wikipedia.org/wiki/Gnaeus_Julius_Agricola Agricola] selling corn to Mercator to show how one person could technically breach a contract and be subject to a severe penalty, even though that breach might have put the other party in a better position than if the contract had been fulfilled.<ref>These hypotheticals include an interesting footnote (presumably from Wythe) that indicates that the phrase "a penny saved is a penny earned" goes back quite earlier than [https://en.wikipedia.org/wiki/Benjamin_Franklin Poor Richard]; it is a translation of [https://en.wikipedia.org/wiki/Cicero Cicero's] phrase ''magnum vectigal fit parsimonia'' from his Sixth Paradox.</ref> In such situations, courts of law would traditionally require Agricola to pay Mercator to pay the full penalty for breaching the contract -- even if the breach put Mercator in a better position -- because that was what the law dictated. The Court uses a quote from [[Titi Livii Historiarum Quod Extat|Livy's Histories]] to describe the traditional law: ''leges rem surdam, inexorabilem esse. . .nihil laxamenti nec veniae habere'' ("the law was a deaf inexorable being. . .admitted of no relaxation or indulgence.")<ref>Livy, ''Titi Livii Historiarum Quod Extat'', Lib. II, Cap. 3 (Amstelodami: Apud D. Elzevirium, 1678). Wythe seems to be guilty of cherry-picking a quote here. He omitted the middle of Levi's phrase, which reads in full, "leges rem surdam, inexorabilem esse, salubriorem melioremque inopi quam potenti; nihil laxamenti nec veniae habere, si modum excesseris" ("the law was a deaf inexorable being, better and more beneficial for the disadvantaged than the powerful, admitted of no relaxation or indulgence.") Livy seemed to view the law's intrangience as a benefit, offering greater equality for the lower classes, while Wythe altered Livy's sentence to show this inexorability as a flaw.</ref> Wythe views the court of equity as an embodiment of justice such as Pallas Athena in [https://en.wikipedia.org/wiki/Orestes#Aeschylus Aeschylus's rendering of the tale of Orestes], conjuring a just and fair verdict when the letter of the law might dictate otherwise. This, the Chancery Court says, is why a court of equity such as it has the power to dissolve the injunction Bullock won, whether the injunction was given by the power of a statute or of common law.

==Works Cited or Referenced by Wythe==
===Cicero's ''Stoic Paradoxes''===
Quotation in Wythe's opinion:
<blockquote>
<tt><span style="color: #006600;">Ciceros ''magnum vectigal fit parsimonia''...is translated, by english lexicographers, ‘a penny saved is a penny got.’</span></tt> Translation: ''Frugality makes great revenue.''<ref>Wythe 335.</ref></blockquote>

===Livy's ''History of Rome''===
Quotation in Wythe's opinion:
<blockquote>
<tt><span style="color: #006600;">''[L]eges rem surdam, inexorabilem esse, - nihil laxamenti nec veniae habere.''</span></tt> Translation: ''[L]aws are deaf things, inexorable – they do not consider relaxing or pardon.'' Wythe uses this to illustrate how the law has viewed the stringency of contracts.<ref>Ibid.</ref></blockquote>

===Terence's ''The Self-Tormentor''===
Quotation in Wythe's opinion:
<blockquote>
<tt><span style="color: #006600;">''[H]omo sum: humani nihil a me alienum puto.''</span></tt> Translation: ''I am a human being: I consider nothing that is human alien to me.''<ref>Ibid 334.</ref></blockquote>

===Aeschylus's ''The Eumenides''===
Quotation in Wythe's opinion:
<blockquote>
<tt><span style="color: #006600;">[T]he design of the law compelling payment of penalties for non-performance of contracts was that the delinquent parties should make ''αντιδοσισ (antidosis)'', and thereby do justice.''</span></tt> Translation: ''an exchange.''<ref>Ibid 336.</ref></blockquote>
==References==
<references/>

[[Category:Cases]]

Goodall v. Bullock

2015-02-03T15:19:55Z

Cjhunter:

{{DISPLAYTITLE:''Goodall v. Bullock''}}
[[File:WytheGoodallVBullock1852.jpg|link=Media:WytheDecisions1852GoodallVBullock.pdf|thumb|right|300px|First page of the opinion [[Media:WytheDecisions1852GoodallVBullock.pdf|''Goodall v. Bullock'']], in [https://catalog.swem.wm.edu/law/Record/2099031 ''Decisions of Cases in Virginia by the High Court of Chancery, with Remarks upon Decrees by the Court of Appeals, Reversing Some of Those Decisions''], by George Wythe. 2nd ed. (Richmond: J. W. Randolph, 1852).]]
[[Media:WytheDecisions1852GoodallVBullock.pdf|''Goodall v. Bullock'']], Wythe 328 (1798),<ref>George Wythe, ''[[Decisions of Cases in Virginia by the High Court of Chancery|Decisions of Cases in Virginia by the High Court of Chancery with Remarks upon Decrees by the Court of Appeals, Reversing Some of Those Decisions]],'' 2nd ed., ed. B.B. Minor (Richmond: J.W. Randolph, 1852), 328.</ref> discussed whether a sheriff could be fined because his deputy did not finish executing a writ, even the person who filed the writ is the person who asked the deputy not to finish executing it. The opinion is notable for Wythe's discussion of the principles underlying a court of equity's powers in which Wythe refers to several classical Greek and Roman sources and stories.
__NOTOC__
==Background==
Parke Goodall was Sheriff of Hanover County, and John Clough was one of his deputies.

John Bullock sued his father, who went by the same name, and won a judgment for about £497. Bullock the younger delivered a writ of ''fieri facias''<ref>A writ of ''fieri facias'' orders the sheriff to get goods from a person to satisfy a judgment against that person.</ref> to Clough in May 1792 to be executed against Bullock the elder's property. Clough seized Bullock the elder's entire estate under the writ and sold it to Bullock the younger in June 1792 for about £206.

Clough never returned the writ to court with notations on what actions he had taken using the writ's power - a process called ''returning the execution''. Returning the execution could have led to further court proceedings against Bullock the elder. The reason for this was disputed. Clough said that in 1795 Bullock the younger asked him to delay returning the execution until the court costs were settled. To support Clough's claim, a third-party witness, William L. Thompson, said that they heard Bullock the younger say he wished Clough would not return the execution until the Bullocks settled with each other. Bullock the younger answered that he never asked Clough to delay returning the execution, but rather repeatedly asked Clough to return the execution after he had seized Bullock the elder's property.

Bullock the younger sued Goodall and Clough in Hanover County Court for failure to return the execution of a writ, and on May 7, 1795, the court fined Goodall about £264 to be paid to Bullock the younger, under the authority of a 1791 Virginia statute.

Clough successfully returned the execution in June 1795. Goodall successfully sued Clough to reimburse Goodall for the fine Goodall owed Bullock the younger. Goodall and Clough filed a bill with the High Court of Chancery asking it to permanently enjoin the Hanover County Court's judgment in favor of Bullock the younger, and Goodall agreed to wait to collect on his judgment against Clough until the proceedings in the Chancery Court concluded.

Bullock the younger argued that because the 1791 statute gave the county court discretion in the amount of the fine to award, the Chancery Court would be improperly usurping the court of law's appellate jurisdiction by issuing an injunction. Therefore, Bullock the younger said, the Chancery Court should dismiss Goodall and Clough's case.
==The Court's Decision==
The High Court of Chancery issued permanent injunctions against Bullock the younger from collecting his judgment against Goodall, and against Goodall from collecting against Clough. The Court said that it was possible for both Thompson's and Bullock the younger's statements to be true. Bullock could have initially asked Clough to return the execution, but then changed his mind three years later when Thompson's testimony took place.

The Chancery Court shot down Bullock the younger's argument that it was usurping legal courts' appellate authority. Chapter 9 of the 1787 Virginia statutes prohibited the Chancery Court from refusing to hear a case due to lack of jurisdiction, or to delay or refuse justice. The Chancery Court noted that when Clough returned the execution in June 1795, he placed all the parties in their proper state, which means there would have been no basis for fining Clough. Since the return happened after the county court issued its judgment, though, there was no way for the county court to alter its opinion to put the parties in their proper state. The Chancery Court concluded that this situation was therefore a fine case for equitable relief.

The Court also noted that, as Bullock the younger admitted, Bullock the elder had no more property to seize to satisfy the rest of the award. Returning the execution and proceeding further in court would likely lead to prison for Bullock the elder, which Bullock the younger said he did not want. Because Bullock the younger had nothing to gain by Clough returning the execution, Bullock the younger could not have been injured by Clough's actions.

The Chancery Court said that fining Goodall would lead to the perverse result of Bullock the younger being in a better position by Clough not returning the execution than by Clough returning it. Moreover, because Thompson's indicated that Bullock the younger told Clough there was no hurry in returning the execution, then sued Clough for not promptly returning it, the Chancery Court found that Bullock the younger was "guilty of a foul fraud. . .venial in the eyes of [https://en.wikipedia.org/wiki/Edward_Coke Edward Coke]".

The Chancery Court also said that the county court seemed to be unaware of Bullock the younger's fraud. Even so, the Chancery Court noted that the county court did not make much use of its statutory discretion and hit Goodall with almost the maximum possible fine. The Chancery Court goes into the etymological origins of the word "discretion" to emphasize that even if the county court felt a fine proper, it should have adjusted the fine to fit the harm.

The Court proceeds to review the principles underlying the court of equity's powers to justify its action in this case, even when involving a penalty authorized by statute. The Court calls on humanity's instinct for sympathy and cites the [https://en.wikipedia.org/wiki/Golden_Rule Golden Rule] along with a quote from the play [[Publii Terentii Afri Comoediae Sex|Heauton timorumenos]]: ''"Homo sum, humani nihil a me alienum puto."'' ("I am a human being, I consider nothing that is human alien to me.")<ref>Terence, "Publii Terentii Afri Comoediae Sex", in ''Publii Terentii Afri Comoediae Sex'' (Glasguae: Cura & impensis Roberti Foulis, typis Roberti Urie & soc., 1742).</ref>

The Court's opinion by Wythe proceeds with several hypotheticals involving [https://en.wikipedia.org/wiki/Gnaeus_Julius_Agricola Agricola] selling corn to Mercator to show how one person could technically breach a contract and be subject to a severe penalty, even though that breach might have put the other party in a better position than if the contract had been fulfilled.<ref>These hypotheticals include an interesting footnote (presumably from Wythe) that indicates that the phrase "a penny saved is a penny earned" goes back quite earlier than [https://en.wikipedia.org/wiki/Benjamin_Franklin Poor Richard]; it is a translation of [https://en.wikipedia.org/wiki/Cicero Cicero's] phrase ''magnum vectigal fit parsimonia'' from his Sixth Paradox.</ref> In such situations, courts of law would traditionally require Agricola to pay Mercator to pay the full penalty for breaching the contract -- even if the breach put Mercator in a better position -- because that was what the law dictated. The Court uses a quote from [[Titi Livii Historiarum Quod Extat|Livy's Histories]] to describe the traditional law: ''leges rem surdam, inexorabilem esse. . .nihil laxamenti nec veniae habere'' ("the law was a deaf inexorable being. . .admitted of no relaxation or indulgence.")<ref>Livy, ''Titi Livii Historiarum Quod Extat'', Lib. II, Cap. 3 (Amstelodami: Apud D. Elzevirium, 1678). Wythe seems to be guilty of cherry-picking a quote here. He omitted the middle of Levi's phrase, which reads in full, "leges rem surdam, inexorabilem esse, salubriorem melioremque inopi quam potenti; nihil laxamenti nec veniae habere, si modum excesseris" ("the law was a deaf inexorable being, better and more beneficial for the disadvantaged than the powerful, admitted of no relaxation or indulgence.") Livy seemed to view the law's intrangience as a benefit, offering greater equality for the lower classes, while Wythe altered Livy's sentence to show this inexorability as a flaw.</ref> Wythe views the court of equity as an embodiment of justice such as Pallas Athena in [https://en.wikipedia.org/wiki/Orestes#Aeschylus Aeschylus's rendering of the tale of Orestes], conjuring a just and fair verdict when the letter of the law might dictate otherwise. This, the Chancery Court says, is why a court of equity such as it has the power to dissolve the injunction Bullock won, whether the injunction was given by the power of a statute or of common law.

==Works Cited or Referenced by Wythe==
===Cicero's ''Stoic Paradoxes''===
Quotation in Wythe's opinion:
<blockquote>
<tt><span style="color: #006600;">Ciceros ''magnum vectigal fit parsimonia''...is translated, by english lexicographers, ‘a penny saved is a penny got.’</span></tt> Translation: ''Frugality makes great revenue.''<ref>Wythe 335.</ref></blockquote>

===Livy's ''History of Rome''===
Quotation in Wythe's opinion:
<blockquote>
<tt><span style="color: #006600;">''[L]eges rem surdam, inexorabilem esse, - nihil laxamenti nec veniae habere.''</span></tt> Translation: ''[L]aws are deaf things, inexorable – they do not consider relaxing or pardon.'' Wythe uses this to illustrate how the law has viewed the stringency of contracts.<ref>Ibid.</ref></blockquote>

===Terence's ''The Self-Tormentor''===
Quotation in Wythe's opinion:
<blockquote>
<tt><span style="color: #006600;">''[H]omo sum: humani nihil a me alienum puto.''</span></tt> Translation: ''I am a human being: I consider nothing that is human alien to me.''<ref>Ibid 334.</ref></blockquote>

===Aeschylus's ''The Eumenides''===
Quotation in Wythe's opinion:
<blockquote>
<tt><span style="color: #006600;">[T]he design of the law compelling payment of penalties for non-performance of contracts was that the delinquent parties should make ''αντιδοσισ (antidosis)'', and thereby do justice.''</span></tt> Translation: ''an exchange.''<ref>Ibid 336.</ref></blockquote
==References==
<references/>

[[Category:Cases]]

Roane v. Innis

2015-02-03T14:58:08Z

Cjhunter:

{{DISPLAYTITLE:''Roane v. Innes''}}
[[File:WytheRoaneVInnes1852.jpg|link=Media:WytheDecisions1852RoaneVInnes.pdf|thumb|right|300px|First page of the opinion [[Media:WytheDecisions1852RoaneVInnes.pdf|''Roane v. Innes'']], in [https://catalog.swem.wm.edu/law/Record/2099031 ''Decisions of Cases in Virginia by the High Court of Chancery, with Remarks upon Decrees by the Court of Appeals, Reversing Some of Those Decisions''], by George Wythe. 2nd ed. (Richmond: J. W. Randolph, 1852).]]
[[Media:WytheDecisions1852RoaneVInnes.pdf|''Roane v. Innis'']], Wythe 243 (1793),<ref>George Wythe, ''[[Decisions of Cases in Virginia by the High Court of Chancery|Decisions of Cases in Virginia by the High Court of Chancery with Remarks upon Decrees by the Court of Appeals, Reversing Some of Those Decisions]],'' 2nd ed., ed. B.B. Minor (Richmond: J.W. Randolph, 1852), 243.</ref> was a case in which Wythe interpreted a statute that awarded a half-pay pension to officers who served in a Virginia defense legion through the end of the Revolutionary War, in particular determining when the war ended for the statute's purposes.
__NOTOC__
==Background==
In May of 1779, the Virginia Assembly passed An Act Concerning Officers, Soldiers, Sailors, and Marines.<ref>Ch. 6, 10 Hening 23 (May 1779 Session). In the text of the ''Roane'' opinion, Wythe cites this as "1779 c. 4". It is not clear whether this was a printer's error, a mistake by Wythe, or something else. William Hening notes in his compilation of Virginia statute that the laws passed during the May 1779 session did not originally have chapter numbers. 10 Hening 9.</ref> Under this law, officers who served in the Continental Army through "the end of the war" would receive half-pay for the rest of their life. The state would also give half-pay pensions for life to "such officers who have, or shall become supernumerary on the reduction of any of the said battalions, and shall again enter into the said service if required so to do. . .and continue therein until the end of the war".<ref>10 Hening 23, 25.</ref>

In March of 1781, the Virginia Assembly passed an act to raise two legions for the defense of the Commonwealth of Virginia.<ref>Ch. 1, 10 Hening 391 (Mar. 1781 Session).</ref> The plaintiffs were ten officers in one of these legions. Christopher Roane was the lead plaintiff in the case. The plaintiffs continued to serve in the legion until February 9, 1783, when the Governor of Virginia reduced the size of their battalions, discharged them from duty, and did not recall them to service.

The United States and Great Britain signed the preliminary version of the [[https://en.wikipedia.org/wiki/Treaty_of_Paris_%281783%29 Treaty of Paris]] on November 30, 1782. The Governor of Virginia was notified of this signing and informed his council of the fact on April 19, 1783. The state disbanded its army on April 22, 1783.

The Virginia Assembly passed a law on December 16, 1790, verifying that officers who served the "state line" would also be entitled to half-pay for life after their service.<ref>Ch. 21, 13 Hening 131 (Oct. 1790 Session).</ref> This law said that half-pay would also be given "to those who became supernumerary, and being afterwards required, did again enter into actual service, and continue therein to the end of the war".

The plaintiffs applied for their half-pay pensions with Virginia's auditor for public accounts, who denied them. The plaintiffs appealed the auditor's decision to the Richmond District Court, which referred the question to the General Court of Virginia.

The General Court said that the plaintiffs were entitled to the half-pay pensions because they served in the Virginia forces through the end of the war, which the General Court defined as when the preliminary Treaty of Paris was signed on November 30, 1782.

Based on the General Court's answer, the District Court overruled the state auditor and ordered him to grant the plaintiffs the half-pay pensions.

The Commonwealth of Virginia, represented by Attorney General James Innis, appealed the decision to the Virginia Supreme Court of Appeals, which reversed the District Court's decision and affirmed the auditor in an unpublished decision on May 2, 1792. The Supreme Court said that there were two groups of officers who were eligible for pensions:
*Officers who served from the time they signed on until the end of the war unless unavoidably prevented from serving "by being prisoners of war, [[https://en.wikipedia.org/wiki/Prisoners_of_war_parole#Prisoners_of_war on parole]], ''or otherwise''" (italics in Wythe's report).
*Officers who were discharged because the government reduced the size of their battalion, then were called back and returned to service through the end of the war.
The Supreme Court held that for purposes of the May 1779 statute (and therefore the 1790 law as well), the war ended when the governor disbanded the state's army on April 22, 1783. Because the plaintiffs were discharged and did not return to duty before that date, the court said that they were not entitled to the half-pay salary.

The Supreme Court said the plaintiffs were free to re-apply for pensions if they could offer new evidence to the auditor, so they applied again, and the auditor rejected their applications again. This time, the plaintiffs filed a bill with the High Court of Chancery against Innis, the state treasurer, and the auditor, asking to be given half-pay pensions.

Wythe originally planned to reject the bill for lack of jurisdiction because the plaintiffs had adequate remedies under the common law and did not seem to present any new evidence in their re-application, but the defendants consented to having the case heard in equity by the Chancery Court, so Wythe heard the case in October 1793.
==The Court's Decision==
The Chancery Court ordered the auditor to award the plaintiffs half-pay pensions for life, or alternatively, a lump-sum payment of five years' worth of pension payments.<ref>According to Wythe, the Supreme Court had allowed the lump-sum payment as an alternative for some people who were found eligible for pensions in the past. Wythe 248, fn b.</ref>

Wythe said that the plaintiffs were just as entitled to a half-pay pension as the officers who were discharged on April 22, 1783, for whom the Supreme Court had allowed it. They were still serving Virginia as of November 30, 1782, when the provisional Treaty of Paris was signed, so they served to the end of the war. The only other possible date that could be called the "end of the war" for purposes of the 1779 Act would be September 3, 1783, when the final treaty was signed - but if that was the case, then why did the officers who were discharged in April 1783 get pensions?
==Wythe's Discussion==
Wythe's discussion of this case was a defense against the Supreme Court's May 1792 decision, probably anticipating an appeal of his decision to that court.

Wythe noted that the Supreme Court said an officer who was restrained from serving until the end of the war by "being prisoners of war, on parole, or otherwise" would be entitled to a pension. Wythe asked why being discharged due to a reduction in battalion size would not count as "otherwise".

Wythe also noted a discrepancy between how he and the Supreme Court read the 1779 Act. Wythe interpreted the act to mean that any officer who served in the Continental Army, was discharged, and did not refuse to return to service if so requested before the war's end was entitled to a pension. The Supreme Court's reading said that only officers who were actively serving at the end of the war could get a pension. If the officer was discharged and not called back to duty, then no pension. At any rate, officers such as the plaintiffs who served in the Virginia state defense forces did not seem to be covered by the 1779 Act's rules on pensions, which is why the assembly passed the 1790 Act. And the 1790 Act's plain language said that only officers who were actively serving when the war ended were entitled to a pension.

Wythe said that by allowing officers discharged in April 1783 to get pensions, the Supreme Court effectively ruled that the provisional articles signed in November 1782 ended the war. The final treaty was not signed until September 1783, so the Supreme Court obviously did not consider that date to be the end of the war. In its decision, the Supreme Court defined the end of war for pension purposes as the day when the Governor of Virginia was notified of the preliminary treaty signatures and then informed the forces' officers of that fact. That, however, is not the deal the officers signed up for. Nowhere in the 1779 Act does it mention the war ending when the Governor of Virginia tells the officers it does. One state governor's act cannot end a war between nations. Making a gubernatorial action the official end of the war would leave some officers trapped in the same situation as [[Titi Petronii Arbitri Equitis Romani Satyricon|Tantalus as described by Petronius]]:<ref>''Nec bibit inter aquas, nec poma natantia carpit.'' ("Can neither drink the water nor grasp the fruit swimming nearby.") Petronius Arbiter, ''Titi Petronii Arbitri Equitis Romani Satyricon'' (Amstelodami: Typis Ioannis Blaev, 1669): 309.</ref> pension so close, but just beyond reach because the officer was discharged just shortly before the governor learned of the treaty's signing. Surely that could not have been the Assembly's intent when it passed the 1779 and 1790 acts.
==The Supreme Court of Appeals Reverses Wythe==
After Wythe published his reports, the Commonwealth of Virginia appealed his decision in ''Roane v. Innis'', and in October of 1797, the Supreme Court reversed the Chancery Court.<ref>''Innis v. Roane'', 8 Va. (4 Call) 379 (1797).</ref>

Supreme Court Judge Roane (no apparent relation to the lead plaintiff) said he could find no difference between the most recent iteration of the case and the original version that the Supreme Court heard in 1792. Roane said that while courts of equity such as the Chancery Court theoretically have the power to set aside strictures the courts of law must follow, this is not one of those situations. Courts of law have the sole power to interpret statutes, and courts of equity are bound by those interpretations.<ref>One of George Wythe's biographers, Robert B. Kirkland, thinks that this part of Roane's opinion triggered Wythe's remarks about how arbitrary the governor's and the Supreme Court's ending date of April 22, 1783, was. Robert B. Kirkland, ''George Wythe: Lawyer, Revolutionary, Judge'' (New York: Garland Publishing, Inc., 1986): 235-6. However, the editor of the second edition of the Wythe Reports says that Wythe's remarks were a reaction to the Supreme Court's 1792 decision, and that the 1797 opinion came down after Wythe had already published his remarks on ''Roane v. Innis''. Wythe 248, fn. *.</ref>

Judge Roane added that that he would find it inequitable to place part-time officers such as the plaintiffs on the same footing as officers who served Virginia and the United States through the entire course of the war when it came to pensions. He also said that the plaintiffs could have insisted on keeping their command when the state discharged them rather than readily accepting the offer of retirement.<ref>Really?</ref> If the plaintiffs had applied to the legislature for relief instead of the courts, Roane thought they might have met with better results. That is not what happened, though, so Roane believed himself obligated to apply the law as the Supreme Court previously dictated it. The Supreme Court previously said that the governor had the power to say when the war was ended, and he did so by official act on April 22, 1783. So, the war ended for pension purposes on April 22, 1783.

Supreme Court Judge Lyons agreed with Judge Roane that the plaintiffs' partial performance did not entitle them to the same pension as officers who had served through the entire war. The plaintiffs were able to enter and leave service as they wished, and so had not earned a right to a pension as did those who were bound to serve through the entire war. Lyons believed that the state's pension offer to the plaintiffs was more of a bounty; if the plaintiffs were actively serving when the war ended, they earned the bounty. If they happened to not be serving when the war ended, no bounty. Roane also agreed that the governor had the power to say when the war was over, and the governor did so on April 22, 1783.

==Works Cited or Referenced by Wythe==
===Petronius's ''Satyricon''===
Quotation in Wythe's opinion:
<blockquote>
<tt><span style="color: #006600;">''Nec bibit inter aquas, nec poma natantia carpit.'' – Petronius Arb.</span></tt> Translation: ''Can neither drink the water nor grasp the fruit swimming nearby.'' Wythe modifies Petronius’ original: “Non bibit inter aquas, poma aut pendentia carpit" ("[Poor Tantalus] stands in water and never drinks, nor plucks the fruit above his head").<ref>Wythe 253. Original Petronius Translation: [http://www.perseus.tufts.edu/hopper/text?doc=Perseus%3Atext%3A2007.01.0027%3Atext%3DSatyricon%3Asection%3D82 M. Heseltine].</ref></blockquote>

==References==
<references/>
[[Category:Cases]]

Roane v. Innis

2015-02-03T14:54:29Z

Cjhunter:

{{DISPLAYTITLE:''Roane v. Innes''}}
[[File:WytheRoaneVInnes1852.jpg|link=Media:WytheDecisions1852RoaneVInnes.pdf|thumb|right|300px|First page of the opinion [[Media:WytheDecisions1852RoaneVInnes.pdf|''Roane v. Innes'']], in [https://catalog.swem.wm.edu/law/Record/2099031 ''Decisions of Cases in Virginia by the High Court of Chancery, with Remarks upon Decrees by the Court of Appeals, Reversing Some of Those Decisions''], by George Wythe. 2nd ed. (Richmond: J. W. Randolph, 1852).]]
[[Media:WytheDecisions1852RoaneVInnes.pdf|''Roane v. Innis'']], Wythe 243 (1793),<ref>George Wythe, ''[[Decisions of Cases in Virginia by the High Court of Chancery|Decisions of Cases in Virginia by the High Court of Chancery with Remarks upon Decrees by the Court of Appeals, Reversing Some of Those Decisions]],'' 2nd ed., ed. B.B. Minor (Richmond: J.W. Randolph, 1852), 243.</ref> was a case in which Wythe interpreted a statute that awarded a half-pay pension to officers who served in a Virginia defense legion through the end of the Revolutionary War, in particular determining when the war ended for the statute's purposes.
__NOTOC__
==Background==
In May of 1779, the Virginia Assembly passed An Act Concerning Officers, Soldiers, Sailors, and Marines.<ref>Ch. 6, 10 Hening 23 (May 1779 Session). In the text of the ''Roane'' opinion, Wythe cites this as "1779 c. 4". It is not clear whether this was a printer's error, a mistake by Wythe, or something else. William Hening notes in his compilation of Virginia statute that the laws passed during the May 1779 session did not originally have chapter numbers. 10 Hening 9.</ref> Under this law, officers who served in the Continental Army through "the end of the war" would receive half-pay for the rest of their life. The state would also give half-pay pensions for life to "such officers who have, or shall become supernumerary on the reduction of any of the said battalions, and shall again enter into the said service if required so to do. . .and continue therein until the end of the war".<ref>10 Hening 23, 25.</ref>

In March of 1781, the Virginia Assembly passed an act to raise two legions for the defense of the Commonwealth of Virginia.<ref>Ch. 1, 10 Hening 391 (Mar. 1781 Session).</ref> The plaintiffs were ten officers in one of these legions. Christopher Roane was the lead plaintiff in the case. The plaintiffs continued to serve in the legion until February 9, 1783, when the Governor of Virginia reduced the size of their battalions, discharged them from duty, and did not recall them to service.

The United States and Great Britain signed the preliminary version of the [[https://en.wikipedia.org/wiki/Treaty_of_Paris_%281783%29 Treaty of Paris]] on November 30, 1782. The Governor of Virginia was notified of this signing and informed his council of the fact on April 19, 1783. The state disbanded its army on April 22, 1783.

The Virginia Assembly passed a law on December 16, 1790, verifying that officers who served the "state line" would also be entitled to half-pay for life after their service.<ref>Ch. 21, 13 Hening 131 (Oct. 1790 Session).</ref> This law said that half-pay would also be given "to those who became supernumerary, and being afterwards required, did again enter into actual service, and continue therein to the end of the war".

The plaintiffs applied for their half-pay pensions with Virginia's auditor for public accounts, who denied them. The plaintiffs appealed the auditor's decision to the Richmond District Court, which referred the question to the General Court of Virginia.

The General Court said that the plaintiffs were entitled to the half-pay pensions because they served in the Virginia forces through the end of the war, which the General Court defined as when the preliminary Treaty of Paris was signed on November 30, 1782.

Based on the General Court's answer, the District Court overruled the state auditor and ordered him to grant the plaintiffs the half-pay pensions.

The Commonwealth of Virginia, represented by Attorney General James Innis, appealed the decision to the Virginia Supreme Court of Appeals, which reversed the District Court's decision and affirmed the auditor in an unpublished decision on May 2, 1792. The Supreme Court said that there were two groups of officers who were eligible for pensions:
*Officers who served from the time they signed on until the end of the war unless unavoidably prevented from serving "by being prisoners of war, [[https://en.wikipedia.org/wiki/Prisoners_of_war_parole#Prisoners_of_war on parole]], ''or otherwise''" (italics in Wythe's report).
*Officers who were discharged because the government reduced the size of their battalion, then were called back and returned to service through the end of the war.
The Supreme Court held that for purposes of the May 1779 statute (and therefore the 1790 law as well), the war ended when the governor disbanded the state's army on April 22, 1783. Because the plaintiffs were discharged and did not return to duty before that date, the court said that they were not entitled to the half-pay salary.

The Supreme Court said the plaintiffs were free to re-apply for pensions if they could offer new evidence to the auditor, so they applied again, and the auditor rejected their applications again. This time, the plaintiffs filed a bill with the High Court of Chancery against Innis, the state treasurer, and the auditor, asking to be given half-pay pensions.

Wythe originally planned to reject the bill for lack of jurisdiction because the plaintiffs had adequate remedies under the common law and did not seem to present any new evidence in their re-application, but the defendants consented to having the case heard in equity by the Chancery Court, so Wythe heard the case in October 1793.
==The Court's Decision==
The Chancery Court ordered the auditor to award the plaintiffs half-pay pensions for life, or alternatively, a lump-sum payment of five years' worth of pension payments.<ref>According to Wythe, the Supreme Court had allowed the lump-sum payment as an alternative for some people who were found eligible for pensions in the past. Wythe 248, fn b.</ref>

Wythe said that the plaintiffs were just as entitled to a half-pay pension as the officers who were discharged on April 22, 1783, for whom the Supreme Court had allowed it. They were still serving Virginia as of November 30, 1782, when the provisional Treaty of Paris was signed, so they served to the end of the war. The only other possible date that could be called the "end of the war" for purposes of the 1779 Act would be September 3, 1783, when the final treaty was signed - but if that was the case, then why did the officers who were discharged in April 1783 get pensions?
==Wythe's Discussion==
Wythe's discussion of this case was a defense against the Supreme Court's May 1792 decision, probably anticipating an appeal of his decision to that court.

Wythe noted that the Supreme Court said an officer who was restrained from serving until the end of the war by "being prisoners of war, on parole, or otherwise" would be entitled to a pension. Wythe asked why being discharged due to a reduction in battalion size would not count as "otherwise".

Wythe also noted a discrepancy between how he and the Supreme Court read the 1779 Act. Wythe interpreted the act to mean that any officer who served in the Continental Army, was discharged, and did not refuse to return to service if so requested before the war's end was entitled to a pension. The Supreme Court's reading said that only officers who were actively serving at the end of the war could get a pension. If the officer was discharged and not called back to duty, then no pension. At any rate, officers such as the plaintiffs who served in the Virginia state defense forces did not seem to be covered by the 1779 Act's rules on pensions, which is why the assembly passed the 1790 Act. And the 1790 Act's plain language said that only officers who were actively serving when the war ended were entitled to a pension.

Wythe said that by allowing officers discharged in April 1783 to get pensions, the Supreme Court effectively ruled that the provisional articles signed in November 1782 ended the war. The final treaty was not signed until September 1783, so the Supreme Court obviously did not consider that date to be the end of the war. In its decision, the Supreme Court defined the end of war for pension purposes as the day when the Governor of Virginia was notified of the preliminary treaty signatures and then informed the forces' officers of that fact. That, however, is not the deal the officers signed up for. Nowhere in the 1779 Act does it mention the war ending when the Governor of Virginia tells the officers it does. One state governor's act cannot end a war between nations. Making a gubernatorial action the official end of the war would leave some officers trapped in the same situation as [[Titi Petronii Arbitri Equitis Romani Satyricon|Tantalus as described by Petronius]]:<ref>''Nec bibit inter aquas, nec poma natantia carpit.'' ("Can neither drink the water nor grasp the fruit swimming nearby.") Petronius Arbiter, ''Titi Petronii Arbitri Equitis Romani Satyricon'' (Amstelodami: Typis Ioannis Blaev, 1669): 309.</ref> pension so close, but just beyond reach because the officer was discharged just shortly before the governor learned of the treaty's signing. Surely that could not have been the Assembly's intent when it passed the 1779 and 1790 acts.
==The Supreme Court of Appeals Reverses Wythe==
After Wythe published his reports, the Commonwealth of Virginia appealed his decision in ''Roane v. Innis'', and in October of 1797, the Supreme Court reversed the Chancery Court.<ref>''Innis v. Roane'', 8 Va. (4 Call) 379 (1797).</ref>

Supreme Court Judge Roane (no apparent relation to the lead plaintiff) said he could find no difference between the most recent iteration of the case and the original version that the Supreme Court heard in 1792. Roane said that while courts of equity such as the Chancery Court theoretically have the power to set aside strictures the courts of law must follow, this is not one of those situations. Courts of law have the sole power to interpret statutes, and courts of equity are bound by those interpretations.<ref>One of George Wythe's biographers, Robert B. Kirkland, thinks that this part of Roane's opinion triggered Wythe's remarks about how arbitrary the governor's and the Supreme Court's ending date of April 22, 1783, was. Robert B. Kirkland, ''George Wythe: Lawyer, Revolutionary, Judge'' (New York: Garland Publishing, Inc., 1986): 235-6. However, the editor of the second edition of the Wythe Reports says that Wythe's remarks were a reaction to the Supreme Court's 1792 decision, and that the 1797 opinion came down after Wythe had already published his remarks on ''Roane v. Innis''. Wythe 248, fn. *.</ref>

Judge Roane added that that he would find it inequitable to place part-time officers such as the plaintiffs on the same footing as officers who served Virginia and the United States through the entire course of the war when it came to pensions. He also said that the plaintiffs could have insisted on keeping their command when the state discharged them rather than readily accepting the offer of retirement.<ref>Really?</ref> If the plaintiffs had applied to the legislature for relief instead of the courts, Roane thought they might have met with better results. That is not what happened, though, so Roane believed himself obligated to apply the law as the Supreme Court previously dictated it. The Supreme Court previously said that the governor had the power to say when the war was ended, and he did so by official act on April 22, 1783. So, the war ended for pension purposes on April 22, 1783.

Supreme Court Judge Lyons agreed with Judge Roane that the plaintiffs' partial performance did not entitle them to the same pension as officers who had served through the entire war. The plaintiffs were able to enter and leave service as they wished, and so had not earned a right to a pension as did those who were bound to serve through the entire war. Lyons believed that the state's pension offer to the plaintiffs was more of a bounty; if the plaintiffs were actively serving when the war ended, they earned the bounty. If they happened to not be serving when the war ended, no bounty. Roane also agreed that the governor had the power to say when the war was over, and the governor did so on April 22, 1783.

==Works Cited or Referenced by Wythe==
===Petronius's ''Satyricon''===
Quotation in Wythe's opinion:
<blockquote>
<tt><span style="color: #006600;">''Nec bibit inter aquas, nec poma natantia carpit.'' – Petronius Arb.</span></tt> Translation: ''Can neither drink the water nor grasp the fruit swimming nearby.'' Wythe modifies Petronius’ original: “Non bibit inter aquas, poma aut pendentia carpit" ("[Poor Tantalus]'' stands in water and never drinks, nor plucks the fruit above his head").<ref>Wythe 253. Original Petronius Translation: [http://www.perseus.tufts.edu/hopper/text?doc=Perseus%3Atext%3A2007.01.0027%3Atext%3DSatyricon%3Asection%3D82 M. Heseltine].</ref></blockquote>

==References==
<references/>
[[Category:Cases]]