Act of February 24, 1819-January 1, 1820. R. C. ch. 99. tue of the act, entitled &c. [Oct. 1776, c. 62, ante, No. 1,] or of this act, for defect of blood, shall descend, and be deemed to have descended, agreeably mortgage as aforesaid: and where all my children, and their issue, may become extinct, then to my wife, N. K. and her heirs forever." Held, that C. K. took an estatetail, which was converted into a fee-simple by the law. Kendall v. Eyre, 1 Randolph, 288. J. G. 17th Oct. 1761, devised that J. G. should have his land, and if J. G. should sell it, then R. G. should have half of the purchase, or if other lands should descend to J. G. then R. G. should have them, or those devised. J. G. takes a fee in the devised lands, and on other lands descending to him and his entering thereon, the devised lands to go over to R. G. by way of executory devise. R. G. being in esse at the date of the will, and the event on which he was to get the land was to happen in the life of J. G. Guthrie v. Guthrie, 1 Call, 7. W. C. 23d Jan. 1790, devised and bequeathed to his daughter B. T. certain lands and slaves, during her life-then to her child or children, if any living at her death, to be equally divided between them; if none, then to W. and J. C. for life; then to their children equally:-to W. C. certain lands, and after the death of the testator's widow, a negro woman and her children: during the natural life of W. C. and after his decease, to his child or children; if none, to J. C. and B. T. for life; and then equally among their children:-to J. C. the lands on which the testator lived, after the death of his widow; and certain other lands and slaves, during J. C.'s life, and then to his child or children, if any living at his death, if none, to B. T. and W. C. during life, and then equally to their children. By a codicil—if all his children should die without is sue of their bodies, his wife living, the lifeestate should go to her during her life, and then over to other persons. The sons W. C. and J. C. and daughter B. T. each take an estate for life; and the remainders over are good, the contingencies not being too remote the word issue from the subsequent limitations to persons in esse, &c., must have been used as synonymous, with children, and not as importing descendants ad infinitum. Smith et ux. v. Chapman et al. 1 H. & M. 240-303. [This is the most valuable case to be found in the American reports. Per. Prof. Hoffman.] W. W. 20th June 1803, gave to his son W. W. during his natural life, and then to his heirs lawfully begotten of his body, that is, born at the time of his death, or nine calendar months thereafter; and, for want of such heirs, then to my son J.'s two sons J. and G. one of them to set a price on the whole of it, and give or receive one half of that sum from the other. A good limita tion, by way of contingent remainder to J.'s sons, J. and G. Warners v. Mason et ux. 5 Munf. 242. See Findlay's lessee et al. v. Riddle, 3 Binney, 139-168, where the cases on this subject are reviewed ;-particularly by Yeates, J. 148-160. C. B. 24th Feb. 1772, gave and bequeathed to his son W. B. certain slaves, to him and his heirs forever. But in case he should die and leave no issue, then he gave the said negroes to his son C. B. and his heirs forever. This limitation to C. B. is good. Dunn et ux. v. Bray, 1 Call, 338. See Moffat's ex'rs v. Strong, 10 Johns. R. 12. A father made a gift of slaves to his daughter and the heirs of her body, and in case she died without issue, that is children of her body, the said negroes to return to the donor. This limitation of the reversion good. Higgenbotham v. Rucker, 2 Call, 313. J. R. 13th April 1783. "It is my will and desire, that in case my son J. should die without heir of his body lawfully begotten, that then, and in that case, I give to my wife L. and to her heirs forever, all the negroes which I had by her." A good executory devise to L., on the ground-that the limitation was of those negroes he had by his wife, saying nothing of their issue; which negroes were in esse at the time; and, consequently, the idea of a return of them, or their posterity, to the heirs of the wife, at a remote distance of time, seems to be reprobated. Royall v. Eppes, adm'r of Royall, 2 Munf. 479; see Deihl et al. v. King et al. 6 Serg. & Raw. 29. A testator lent to his grand-daughter, a negro woman, and a bed and furniture, for her and her heirs, executors and administrators, forever, but if she should die without lawful heir of her body, then to return to my son J. and his heirs forever. Limitation over void, because on an indefinite failure of issue. Williamson, ex'r of Mayes v. Ledbetter et al. 2 Munf. 521. Testator, by his will, lends slaves and their increase to his grandson T. D. and his heirs of his body, and if he shall die without a lawful heir, then he bequeaths them to the children of his daughter E. L.: Held, this is an executory limitation after an indefinite failure of issue of the grandson, and therefore void; and the slaves vest in the grandson in absolute property. Deane v. Hansford, &c. 9 Leigh, 253. A limitation over after an indefinite failure of issue in the first taker, is void. J. C., in 1799, devised and bequeathed to his daughter B. C. his plantation and lands of all kinds, and four slaves and their increase "to her and her heirs and assigns forever.""It is my will and desire, that if B. C. shall die without lawful heir or issue of her own body, that then, all the lands and all the Act of February 24, 1819-January 1, 1820. R. C. ch. 99. to the limitations of the deed or will creating such estates. May 1783, c. 27, 11 Stat, Larg. 271, c. 90, R. C. other estate herein given to B. C., that shall be left remaining at her death, be equally divided to and between my said three sisters, C. C., M. C. and E. C., to them and their heirs and assigns forever." Held, that B. C. took an absolute estate in the property. Riddick v. Cohoon, 4 Rand. 547; see Burfoot v. Burfoots, 2 Leigh, 119. Devise to Margaret and Elizabeth, and the survivor of them, their heirs and executors forever; gives a joint tenancy in fee, and not estates for life with remainder in fee to the survivor. Doe dem. Young, &c. v. Sotheron et al. 2 Barn. & Adolp. 628. : Testator devises land to his son W. and his heirs, and if he should die without a son, and not sell the land, then to testator's son G. Held, the devise gave W. absolute power to sell the fee simple; and therefore, whether he sold it or not, he took a fee simple, and the devise over to G. was void. Melson v. Doe dem. Cooper, 4 Leigh, 408. A testatrix gave to her nephew J. A. certain negroes, (naming them,) "them and their increase to him and his heirs forever; but, in case he die without heir, then and in that case, what I give him, to be equally divided between my two nieces M. A. and P. A. A good limitation to the nieces on J. A.'s dying without issue at his death; on the ground that the bequest over is to them merely, and not to them and their heirs, purporting a personal benefit to them, &c. Timberlake et ux. v. Graves, 6 Munf. 174. And, on same principle, where a testator devised the residue of his estate to his brother J. and in case he died without issue, to be equally divided between his uncle's children, (naming them,) no words of perpetuity added. Limitation over good. Greshams v. Gresham et al. 6 Munf. 187. And where a testator ordered his personal property to be equally divided between his sons W. C. and D. C., and that if either of his said sons died without lawful heir, his surviving brother should inherit all the estate of the deceased. Limitation over good. Cordle's adm'r v. Cordle's ex'r, 6 Munf. 455. And where a testatrix lent to her son J. H. certain negroes, (naming them,) during his life, and if he should have lawful issue, she gave the same to them at his death; and if he should die without issue, she gave the said slaves, which she had lent him, to S. H. and J. H., daughters of her son W. H. Limitation good. Didlake v. Hooper, 1 Gil. R. 194; see Guery v. Vernon, 1 Nott & M'Cord, 69; see Griffith v. Thomson et al. 1 Leigh, 321. A limitation by way of executory devise, which is not to take effect until after the determination of a life or lives in being, and a term of 21 years, as a term in gross, and of without reference to the infancy of any person who is to take under such limitation, or any other person, is a valid limitation. Cadell v. Palmer, (Dom. Proc.) 10 Bing. 140, and 1 Sim. 173. Bequest to a female, when and if she should attain the age of twenty-one, to her sole and separate use; and in case of her death, leaving children, her share to go to her children: Held, to vest an absolute interest in the legatee on her attaining twentyone. Home v. Pillans, 2 Mylne & Keene, 15. Testator bequeaths slaves to his wife for life, remainder to be equally divided between his seven children and their heirs, to them and their heirs forever; one of testator's children, at time of his death, is a married woman; she dies before the widow, legatee for life, leaving a husband and children her surviving: Held, this daughter took a vested remainder in her seventh part of the slaves, which at her death devolved to her husband, not to her children. Wade v. Boxley, &c. 5 Leigh, 442. On the subject of limitations over of chattels, after a bequest for life, Sir Wm. Grant, M. R. said, in Randall et al. v. Russell et al. August 1817, 3 Meriv. 194-5, "My conception is, that a gift for life, if specific, of things que ipso usu consumuntur,' is a gift of the property; and that there cannot be a limitation over after a life interest in such articles. If included in a residuary bequest for life, then they are to be sold, and the interest enjoyed by the tenant for life. Originally we know that, by our law, there could be no limitation over of a chattel, but that a gift for life carried the absolute interest. Then a distinction was taken between the use and the property. The use might be given to one for life, and the property afterwards to another. "A gift for life of a chattel is now construed to be a gift of the usufruct only. + But when the use and the property can have no separate existence, it should seem that the old rule must still prevail, and that a limitation over, after a life interest, must be held to be ineffectual." See Scott v. Price, 2 Serg. & Raw. 59, 62, and Westcott et al. v. Cady et al. 5 Johns. Ch. R. 334, 346-7; see Bradley v. Mosby, 3 Call, 50; see Madden v. Madden's ex'rs, 2 Leigh, 377, 389; Smith v. Bell, 6 Peters, 68, 78; Goodwyn v. Taylor, 4 Call, 305. A court of equity will not, as a matter of course, rule a tenant for life of personal property, to give security to the remainderman, that it shall be forthcoming at his decease; it is a matter of sound discretion, according to the circumstances. Holliday v. Coleman et ux. 2 Munf. 162. There ought to be danger in order to re et ux. Act of February 24, 1819-January 1, 1820. R. C. ch. 99. 3. 24. Provided also, That nothing in this act contained, shall be construed to restrain any tenant of such lands or slaves, from selling or conveying the same by deed,(1) in his or her lifetime, or disposing thereof by his or her last will and testament, and that all such estates shall remain liable to the debts of the tenants, in the same manner as lands and slaves held in fee-simple: Provided moreover That this act shall not extend to any lands or slaves, which have been escheated and sold for the use of the commonwealth. Ibid. 4. § 25. Every estate in lands, which shall be limited by any deed hereafter made, or by the will of any person, who shall hereafter die, so that, as the law was on the seventh day of October, in the year of our lord, one thousand seven hundred and seventy-six, such estate would have been an estate-tail, shall be deemed to be an estate in fee-simple, in the same manner, as if it had been limited by those technical words which, at the common law, are appropriate to create an estate in fee-simple; and every limitation upon such an estate, shall be held valid, if the same would be valid when limited upon an estate in fee-simple, created by technical language as aforesaid. Rev. 1819. 5. § 26. Every contingent limitation in any such deed or will, made to depend upon the dying of any person without heirs, or heirs of the body, or without issue, or issue of the body, or without children, or offspring, or descendant, or other relative, shall be held and interpreted a limitation to take effect when such person shall die, not having such heir, or issue, or child, or offspring, or descendant, or other relative, as the case may be, living at the time of his death, or born to him within ten months thereafter, unless the intention of such limitation be otherwise expressly and plainly declared on the face of the deed or will creating it. Rev. 1819. 6. § 28. Where an estate hath been, or shall be, by any conveyance, limited in remainder, to the son or daughter, or to the use of the son or daughter, of any person, to be begotten, such son or daughter, born after the decease of his or her father, shall take the estate in the same manner, as if he or she had been born in the lifetime of the father, although no estate shall have been conveyed to support the contingent remainder after his death. 10 and 11 Will. 3, c. 16; Oct. 1785, c. 62—1 Jan. 1787, 12 Stat. Larg. 157, c. 90, R. C. quire security, per Ld. Ch. Thurlow, in Foley et al. v. Burnell et al. 1 Bro. Cha. C. 279; see Chisholm v. Starke et al. 3 Call, 25. And see Westcott et al. v. Cady et al. 5 Johns. Ch. R. 349; Covenhoven v. Shuler, 2 Paige, 123; Alcock v. Sloper, 2 Mylne & Keene, 699; Collins v. Collins, ib. 703. (1) Tenant in fee tail general aliens in fee, by deed of lease and release with gene ral warranty, in 1769; tenant in tail lives till 1816, and then dies leaving issue: Held, that the statutes of 1776 and 1785, abolishing entails, barred the issue, and converted the estate tail, even though it were in abeyance, into a pure and absolute fee, and confirmed the fee simple to the tenant in tail's alienee in fee. Orndoff v. Turman et al. 2 Leigh, 200. Act of February 7, 1819-January 1, 1820. R. C. ch. 112. 1. § 1. It shall be lawful for any person, by himself or his agent, to take up any estray(1) on his own land; and, having taken it, he or his agent, shall forthwith give information thereof, to some justice of the peace for the said county, who shall thereupon issue his warrant to three disinterested freeholders of the neighbourhood, commanding them, having been first duly sworn, to view and appraise such estray, and certify the valuation under their hands, together with a particular description of the kind, marks, brand, stature, colour and age; which certificate shall, by the justice be transmitted to the clerk of the county court, within twenty days, and by such clerk entered in a book to be kept for that purpose, for which he may demand and take twenty cents, to be paid down by the taker-up. 1785, c. 70, 12 Stat. Larg. 168; 1792, c. 16, R. C. 2. § 2. The clerk shall, moreover, cause a copy of every such certificate, to be publicly affixed at the door of his courthouse, on two several court days, next after he shall receive the same; for which, and a certificate thereof, he shall receive the like fee as for entering the same in a book. Ibid. 3. § 3. If the valuation shall be under three dollars, thirty-three cents, and no owner shall appear until notice shall have been twice published, as aforesaid, the property shall then be vested in the owner of the land, on which such estray was taken; and if the valuation shall exceed that sum, such owner shall, within three months after the appraisement, cause such certificate to be published three times in any newspaper that may be printed nearest to the place where such estray may have been taken up; and if no owner appears to claim such estray, within a year and a day after the publication, the property shall from thenceforth be vested in the owner of the lands whereon it was taken. But the former owner, in either case, may, at any time afterwards, upon proving his property, demand and recover the valuation money, deducting therefrom the clerk's and printer's fees, and such compensation for keeping and supporting such estray, as shall be adjudged reasonable by two freeholders, to be sworn by a justice of the peace in the county where such estray may have been taken up. From Ibid. and 1804, c. 27, ed. 1808, Am. at Rev. 4. § 4. If any person shall take up a boat or other vessel adrift, he shall, in like manner, make application to a justice of one of the adjacent counties, for his warrant, to have the same valued and described, by her kind, burthen and build, and shall proceed in all other respects, and have the same benefit, as before directed in the case of estrays. 1785, c. 70, 12 Stat. Larg. 169; 1792, c. 16. 5. § 5. Provided always, That if, after notice published as aforesaid, any estray shall happen to die, or by any casualty get out of the possession of the person who took the same up, without his or her default, such taker-up shall not be answerable for the same, or for the valuation thereof; nor shall any taker-up be answerable for any boat or other vessel lost as aforesaid. Ibid. * December 1656, act 9, 1 Stat. Larg. 420; November 1769, c. 18, 8 Stat. Larg. 354. (1) Estray is where any horses, sheep, hogs, beasts, or swans, do come, &c. Kitch. 23. 8 6 7 10 For attending on committees of the general assembly, 23 For several suits, at same time, 22 13 Testimony of witnesses, aged, &c. or Testimony where claim or defence de- Witnesses to be sworn as to their tra velling, ferriages and attendance, Act of January 10, 1818-January 1, 1820. R. C. ch. 131. 1. § 1. No person convicted of treason, murder or other felony whatsoever, shall be admitted as a witness in any case whatsoever, unless he be first pardoned, or shall have received such punishment, as by law ought to be inflicted upon such conviction. Nov. 29, 1792, c. 141, R. Č. ; 9 Geo. 4, c. 32. 2. § 2. No person convicted of perjury, although he be pardoned or punished for the same, shall be capable of being a witness in any case. Ibid. 3. § 3. No negro, mulatto or indian, shall be admitted to give evidence but against, or between negroes, mulattoes or indians.(2) Ibid. [Any negro or mulatto, bond or free, shall be a good witness in pleas of the commonwealth for or against negroes or mulattoes, bond or free, or in civil pleas where free negroes or mulattoes shall alone(2) be parties, and in no other cases whatever.(2) Jan. 21-June 1, 1801, 2 Stat. Larg. 300, Shep. ed. c. 111, § 5, R. C. ed. 1819. And whenever it shall be necessary to examine any slave, free negro or mulatto, as a witness on any trial, it shall be the duty of the court or justice sitting on such trial, before such witness shall be examined, to charge. him to declare the truth, in the manner following, to wit: You are brought hither as a witness, and, by the direction of the law, I am to tell you, before you give your evidence, that you must tell the truth, the whole truth and nothing but the truth; and that, if it be found hereafter that you tell a lie, and give false testimony in this matter, you must for so doing, have both your ears nailed to the pillory and cut off, and receive thirty-nine lashes on your bare back, well laid on, at the common whipping-post. (a) May 1723, c. 4, § 6, 4 Stat. Larg. 128-9; Oct. 1748, c. 38, 6 Stat. Larg. 107; Dec. 17, 1792, c. 111, § 46, Ř. C. ed. 1819.] (2) See act May 1732, c. 7, § 5, 6, 4 Stat. Larg. 326-7; Sept. 1744, c. 13, 5 Stat. Larg. 244; Oct. 1748, c. 13, 5 Stat. Larg. 547, c. 38, § 10, 11, 12; 6 Stat. Larg. 107; Oct. 1785, c. 77, 12 Stat. Larg. 182; Chaney v. Saunders, 3 Munf. 51. In an action by a white man against a free negro, a free negro is not a competent witness for the plaintiff. Winn, adm'x v. Jones, 6 Leigh, 74. Notwithstanding the provisions of this act, I have never heard it doubted that a free negro who applies for an injunction, or asks for a continuance, is competent to make the affidavit which the law requires in all such cases. Per Tucker, pres't, in De Lacy v. Antoine et al. 7 Leigh, 449. (a) The original act of May 1723, c. 4, § 5, 1748, § 9, enacts, that on the trial of any slave for a capital crime, the person first named in the commission, then sitting, shall, before the examination of any negro, mulatto, or indian, not being a christian, charge such evidence, &c., and this, that he may be under "the greater obligation to speak the truth." In practice, this charge is given before the witness is sworn. M'Kean, C. J. said, (4 Dall. 145,) that it |