REPORTS

OF

CASE S

ARGUED AND DETERMINED

IN THE

Supreme Court of Appeals

OF

VIRGINIA:

WITH SELECT CASES

RELATING CHIEFLY TO POINTS OF PRACTICE,

DECIDED BY THE

SUPERIOR COURT OF CHANCERY FOR THE RICHMOND DISTRICT.

VOL. I.

BY WILLIAM W. HENING AND WILLIAM MUNFORD.

t

PHILADELPHIA.

1808.

DISTRICT OF VIRGINIA, TO WIT:

E IT REMEMBERED, that on the eighth day of June, in the thirty-second year of the Independence of the United States of America, William W. Hening and William Munford, of the said district, have deposited in this office, the title of a book, the right whereof they claim as authors, in the words following, to wit:

"Reports of Cases argued and determined in the Supreme Court "of Appeals of Virginia: with Select Cases, relating chiefly to Points "of Practice, decided by the Superior Court of Chancery for the "Richmond District. Vol. I. By William W. Hening and William "Munford."

In conformity to the Act of the Congress of the United States entituled "An act for the encouragement of learning, by securing the copies of maps, charts, and books, to the authors and proprietors of such copies during the times therein mentioned," and also to an act entituled "An Act supplementary to an Act, entituled, an Act for the encouragement of learning, by securing the copies of maps, charts, and books, to the authors and proprietors of such copies, during the times therein mentioned. And extending the benefits thereof to the arts of designing, engraving, and etching historical, and other prints."

(L.S.)

WILLIAM MARSHALL,
Clerk of the district of Virginia.

JUNE 11-1929
LRR

PREFACE.

IN presenting the following Reports to the public the authors cannot resort, to a very usual apology, "that the notes were taken merely for their own private use." We commenced them professedly with a view to disseminate the decisions of the SUPREME COURTS OF VIRGINIA, as early, and in as authentic a manner as possible. Whatever imperfections then may be found in the work must be ascribed to the nature of the undertaking,-to our inexperience in such pursuits, or, we hope, to any cause rather than the want of a sacred regard to TRUTH.

Of all the duties which devolve on a Reporter, certainly none are more important than those relating to the state of the case and the opinions of the Judges. With respect to the first of these objects, we have uniformly endeavoured to give a concise and accurate statement of the points in controversy, and of such circumstances in each case as were necessary for its elucidation. In order to accomplish this, we have not confined ourselves to the briefs of counsel; but, whenever any fact or circumstance, omitted in them, appeared, from the argument or decision, to be of importance, we have invariably

A

consulted the records themselves. As to the second object, the notes of the Judges (which they were so obliging as. to furnish) have precluded the possibility of any inaccuracies. None, it is believed, will be discovered, except such as are merely typographical.

But the most embarrassing part of our whole undertaking related to the arguments of counsel. To give them at large, we were sensible, would swell the volume to an enormous size. To omit them altogether, and insert merely the positions advanced by counsel without their reasons in support of them, would not only convey a very inadequate idea of the merits of the several speakers, but often leave the case perfectly unintelligible. We therefore determined to pursue such a middle course, as would guard against too much prolixity, on the one hand, and too much brevity, on the other. This we found to be a work of infinite delicacy and difficulty.Counsel often take a wide range in argument, and dwell, with great zeal and ability, on points which the Judges do not think it necessary to consider, in that particular cause. Indeed, it is frequently impossible for the counsel to know beforehand what special grounds of law or equity will influence the opinions of the Judges. Hence it is that a considerable proportion of the notes taken by a Reporter during a discussion have no application to those points which, by the court, are regarded as essential to the decision. The business of selection is, of course, very laborious;-for (strange as it may appear,) it is strictly true that we could report at full length, with much greater facility, and in one third of the time that is requisite to abridge, so as to insert such arguments only as were applicable to the points decided, excluding, even from them, everything but the substance in a condensed form. Yet it has been indispensibly necessary to adopt this plan. For, were we to

act otherwise, were we to mention all the doubts and objec tions suggested by the ingenuity of able counsel, we should furnish materials for litigation, instead of communicating the LAW as settled by the highest judicial tribunal of our country. These remarks are due to the cause of truth; and, while we hope they will be considered by the gentlemen of the bar as a sufficient apology for the brevity with which their arguments are reported, we think it but just to say, that the extent of their talents ought not to be estimated by the epitomes which we have presented. In a few leading cases, however, in which great principles were settled, we have felt ourselves at liberty to indulge in a more diffuse manner: particularly in the case of SMITH and WIFE v. CHAPMAN, (which is more like a digest of the law relative to an important subject than a report of a single case,) we were induced, by the advice of those in whom we justly reposed the highest confidence, to give the arguments of the counsel on both sides nearly as they were delivered. If, in that, and a few other cases, they shall still appear too lengthy to some of our readers, we trust that due allowance will be made when they reflect that the plan of speedy publication would not permit us, in every instance, to perform effectually the task of abbreviating, engaged as we have been in various professional and public duties. Yet, we believe, the attentive and candid reader will acknowledge, that, generally, the arguments are comprised in as narrow a compass as possible, consistently with a clear understanding of the grounds of the several decisions.

From the BENCH, the BAR, and the OFFICERS OF THE COURT, we have received the most liberal assistance; for which we request them, individually, to accept our grateful acknowledgments.