1810. eviction.* We were not bound to prove the precise value at the OCTOBER, last-mentioned period: it sufficiently appears that it was more than the rate at which Humphreys purchased. The exact amount Humphreys' can be ascertained by reference to a Commissioner or a Jury. Adm'r v. M'Clena Saturday, November 16. The Judges pronounced their opi- chan's Adm'r, nions. Judge TUCKER stated the case as above, and proceeded as follows: The point most strongly contested in this Court was, whether Humphreys was entitled to a compensation for the deficiency of the larger tract, (the equitable title to which was, at the time of the contract, in Rhodes,) according to the average price of the whole, or according to the specific value of the land when Rhodes acquired his legal title thereto, by the patent from the Governor of Kentucky. Mr. Wickham contended for the latter. The price of lands must, in all cases between the seller and the purchaser, be considered as the just value thereof at the time of the contract, regard being had to the terms and mode of payment agreed on between them: in other words, the price is the value, as agreed on by the parties themselves: if the contract be executory on both sides, the party who hath not yet fulfilled his own engagements, comes with an ill grace before a Court of Equity to demand ample compensation, or, more properly speaking, vindictive damages against the other party for any deficiency or failure on his part. Although M‘Clenachan, either from want of information of Breckenridge's contract with Rhodes, on his behalf, or from some other cause, is alleged to have sold Humphreys the whole of the larger tract, instead of that part only to which he was justly entitled, that circumstance does not so clearly appear from the words of the contract itself, which only imports to convey all his title, interest, claim and demand, and every emolument arising from two land-warrants therein mentioned. It must not be forgotten that these warrants are assignable by law. It does not appear he then knew they were even located; he could not then be supposed to intend specifically to warrant the quality of the lands upon which they might be located: and, without some reference to quality and quantity, as connected with each other, no calculation of value, independent *Note. It did not appear that Humphreys was ever in possession of the land. OCTOBER, of the price, can possibly be formed. 1810. Adm'r V. M-Clena chan's Adm'r. (a) See Nel- I therefore think the Chancellor's decree correct in making the price per acre Humphreys' the standard by which the abatement from the price is to be made, in regard to the larger tract.(a) With respect to the lesser tract, the only inconvenience or expense which Humphreys has been exposed to, as far as appears by this record, was compensation of 12/. 10s. per thousand acres paid to the loThis, according to the very terms of the contract, M-Clenachan had agreed to deduct from the amount of Humphreys' bonds. More, the latter could on no principle be entitled to, as was decided, I believe, in the case of Hull v. Cunningham's Ex(b) Ante, p. ecutors, last term.(b) I approve also of the remainder of the decree, though some objections, not appearing upon the record, might, perhaps, have been taken to it. $30. of 1. In case eviction, after a veyance made ty, the value cator. Judge ROANE. In the case of Mills v. Bell, 3 Call, 326. it con- was resolved by this Court that, in the case of an eviction after a with warran- conveyance made with warranty, the value of the lost land, as of the lost at the time of eviction, should give the rule by which the vendee land, as at the is to be remunerated; for that "the purchaser is entitled, on the time of the eviction, gives covenant, to the increased value of the estate, as well as for any which the improvements he may have made on it, but that when the conbe remunera- . tract is executory,a Court of Equity will adjust it upon princited: but, when ples of equity according to the circumstances." the rule by vendee is to the contract a Court of cording to the circumstan ees. is executory, Under the last branch of this position the said case of Mills v. Equity will Bell was adjusted. In the case of Nelson v. Matthews, 2 H. & adjust it, upon M. 154. it was held that the actual value at the time of the conprinciples of equity ac tract should give the rule. This case, however, is supposed not to be in opposition to the principle laid down in Mills v. Bell, (ut supra,) as it was the case of a deficiency in the quantity of land 2. In ease sold, and not an eviction of any part of that actually conveyed of a deficiency, the value at by the deed. There was no subject, therefore, quoad the matter contract gives in controversy, the value of which could have increased, or on the rule of which improvements could have been placed: the giving the purpurchase-mo- chaser, therefore, the value of his purchase at the time, with inney is the standard, terest, would do him ample justice. This last case is analogous to the one before us; and the value of the deficient land, as that the actual at the time of the purchase, should give the rule in this case as in ferent.' that: but, as it is not objected that the price contracted for is greater or less than the real value at the date of the contract, I which the where it does not appear value was dif and ОстовER, 1810. Adm'r V. M'Clena see no reason to depart from that in the present instance; am for affirming the decree. The case of Farley v. Shippen, Wythe's Rep. p. 135. is con- Humphreys' clusive as to the of the Court over lands lying in another power state, where the persons decreed against are within its jurisdic- chan's Adm'r. tion. It is true that the commissioners or agents who are to carry the decree into execution ought to be within the jurisdiction, so as to be amenable to the process of the Court. In point of fact, I believe that the commissioners in this case do reside out of the limits of the Commonwealth; but, as this does not appear of record, it is not for us to take the objection. Judge FLEMING. It is the unanimous opinion of the Court that the decree be affirmed. Hooe against Tebbs and Wife. Wednesday, sessing com diction ad without ap THIS was a special action on the case in the Dumfries Dis- 1. If, in a suit upon a prisontrict Court, by William Tebbs, and Victoria his wife, against bounds bond, Bernard Hooe, sen. late Sheriff of Prince William County. The Court posdeclaration charged that the plaintiffs had, in a certain action of petent juristrespass, assault and battery, obtained a judgment, and sued out judge thebond void; theplaina writ of capias ad satisfaciendum, against one Daniel Tebbs, tiff may sue which was delivered to George Lane, one of the defendant's de. the Sheriff puties, to execute, who thereupon took the body of the said Da- pealing from the judgment niel Tebbs in execution; and that the said George Lane, "contri though erro ving, and unjustly intending, contrary to the duties of his office, to hurt, injure, and deprive the plaintiffs of the means and remedy 9. In such case of obtaining their damages and costs aforesaid, afterwards, (the though not a said Daniel Tebbs being still in custody, &c.) did receive and party to the take of the said Daniel Tebbs, together with Willoughby Tebbs bond, is bound by the judg ment; unless neous. the Sheriff, suit On the he can prove it was obtained by collusion. 3. In an action against the Sheriff for an escape, a verdict in general terms, for the plaintiff, is not sufficient to authorize a judgment; notwithstanding the charge in the declaration be, that the Sheriff took a defective prison-bounds bond, and thereupon voluntarily permitted the prisoner to escape; and issue be joined on the plea of not guilty. An express finding by the Jury according to the act of 1792 concerning escapes, is absolutely necessary. 4. It seems, that a prison-bounds bond, taken payable to the plaintiff, is good at common law, and an action may be maintained upon it. 5. Quare, whether it be not also good under the act of Assembly? 1810. Hooe V. Tebbs. OCTOBER, as his security, a prison-bounds bond payable to the plaintiffs, (and not to the Sheriff,") which was set forth in hæc verba: “and thereupon the said Lane, without the license of the plaintiffs, and against their will, contrary to the duties of his office, freely and voluntarily permitted and suffered the said Daniel Tebbs to escape, and go at large, out of the custody of the said Lane, so being Deputy Sheriff as aforesaid, wheresoever he would, the plaintiffs being wholly unsatisfied for their damages," &c. (a) Edit. of 4769, p. 196. (b) Rev. Code, c. 151. s. 37. p 393. The declaration charged, moreover, that the plaintiffs thereaf ter brought an action in the said District Court on the said bond; and that, by the judgment of the Court, the said bond was declared to be illegal, and that an action was not sustainable thereon; by reason of which premises the plaintiffs had never received and recovered their damages and costs first mentioned, but had been run to great trouble and expense in prosecuting, and discharging the costs accruing on the action sued out by them on said bond," &c. The defendant pleaded not guilty; and, issue being joined, a verdict was found in the following words: "We of the Jury find for the plaintiffs, and do assess their damage to one hundred and eight pounds, five shillings." A motion was made in arrest of judgment; 1. "Because the Jury who tried the issue had not expressly found that D iniel Tebbs the prisoner did escape with the consent, or through the negligence of the defendant, or his officer; or that he might have been retaken, and that the defendant and his officer neglected to make immediate pursuit ;" and, 2. "Because the whole proceedings were erroneous and irregular." The Court overruled the motion, and gave judgment for the plaintiffs: the defendant appealed. Betts, for the appellant, made three points; 1. That the prisonbounds bond set out in the declaration was a valid one. The 21st section of the act of 1748, c. 8.(a) repealed in 1793,(b) (under which this bond was taken,) does not expressly say to whom it should be payable; but the strong implication is, to the plaintiff'; the act not requiring it to be payable to the Sheriff. In like fc) Edit of manner, the law relating to forthcoming bonds,(c) though it uses 1769, p. 194. the expression, "if the owner of such goods and chattels shall give Code, p. 298. sufficient security to such Sheriff," &c. has always been construed as requiring such bonds to be made "payable to the plaintiffs." It 8. 12 1 Rev. 8. 13. 6 before 1810. Hooe Tebbs. (a) Edit. of Rev. Code, 1769, p. 446. c. 79 s. 2. p. 119. (6) Edit. of clause 1 Rev. Code, 1769, p. 184. appear- 122. c. 80. s. 17. p. is true that, by the act of 1764, c. 6. s. 1.(a) the Sheriff is di- OCTOBER, rected to assign over and deliver the prison-bounds bond to the plaintiff but this only shews that the Legislature supposed the bond might be taken payable to the Sheriff; not that the law required it. Indeed, it answers every beneficial purpose to take it to the plaintiff, or to the Sheriff for his benefit. The 7th section of the act of 1748, c. 6.(b) does not vitiate this bond; first, because it was taken under the authority of the mentioned act of Assembly; and, secondly, because the now in question relates only to bail-bonds or bonds for " ance." The same construction, viz. that it related only to sons arrested on mesne process, was given in England to the tute 23 Hen. VI. c. 9.; from which ours is copied.(c) But in many cases where a bond is not sufficient, under the edit) 179. act of Assembly, to authorize a motion in a summary way, it been decided that an action may be maintained upon it at common law :(d) particularly, where a statute requires a bond to be (d) Johnsons taken payable to the plaintiff, it is valid as a common law though taken to the Sheriff: the converse of which rule equally to hold good. per sta Bac. (c) 6 Term Rep. has 422. Rogers v. Reeves. V. Meriwe bond, ther, 3 Call, ought 523. Hewlett V. Chamberlayne, Wash. 367. Beale v. Call, 249. 2. The judgment in the suit on the bond, to which the present Downman, 1 appellant was no party, ought not to bind him; especially as that judgment was illegal.(e) (e) 1 Call, 51, Drew v. An derson. Runn on Eject. 364. 367. (f) 1-Rev. Code, e Johnson 3. The verdict of the Jury in this suit is imperfect, in not EXPRESSLY finding that the 'debtor escaped with the consent or through the negligence of the Sheriff. (f) The Clerk's entry that the Jury found the defendant "guilty in manner and form as s. 3. p 119. charged in the declaration," is merely the clerical form of record- Macon, 1 ing the verdict, but does not satisfy the act of Assembly. At Wash. 4. common law, it would be otherwise. On a general verdict of "guilty," the Court would adjudge that the Sheriff had been guilty of voluntarily permitting the escape of the prisoner. But this act goes farther; and for wise reasons. A Jury might shrink from finding a voluntary escape, when through hurry or inadvertency, they might find a general verdict for the plaintiff. But, however this may be, the words of the act are plain, and positive, and must be obeyed. Williams, contra. The action in this case may be considered, either, as on the case for a voluntary escape, or, (more properly,) 79. |