the rights accruing to the sheriff, for the benefit of the other OCTOBER,

1815. creditors, under the act concerning insolvent debtors; the benefit whereof, it would seem to the court, under that as

Bullock pect, the said James Bailey intended to avail bimself of, at

Irvine's admithe time of the sale aforesaid, and, at the same time, fraudu. nistrators. lently to withdraw from its operation the land now in question.

The court is farther of opinion, that, in the event of a finding correspondent with that last mentioned, the deed conveying the land aforesaid should be held void, and the land thereby conveyed, be deemed vested in the sheriff, under the provisions of the act relating to this subject; and that the appellees should have liberty, in that case, to make the sheriffa party to this suit, and obtain from him, under a decree of the Court of Chancery, such rights as, under that view of the subject, may be found to belong to them; saving to the appellants, in the first instance, the amount of the purchase money, with interest, which the said Hannah Bullock may have paid, or may have secured to be paid therefor, to William S. Bailey.

Decree reversed, and cause remanded to the Court of Chancery, to be proceeded in according to the principles now stated.

Wilson against Stokes and Betts.

October, 1815. A MOTION was made in the Superior Court of Pittsyl- 1. It seems that vania, by the appellees against the appellant, sheriff of that since the attor

ney at law, county, for the money made on an execution sued out by who prose

cutes a suit them against one William Hamlett, which was levied by and obtains Richard Jones, deputy of the appellant, and by him returned judgment, has " satisfied.” The defendant filed exceptions, stating the evi- receive the dence on both sides.

Cr

V.

OCTOBER, The attorney at law, who prosecuted the suit for Stokes 1815.

and Betts against William Hamlett, shortly after the return Wilson

day of the execution, applied to the deputy, Jones, for pay.

ment, and was by him referred to another deputy, William Stokes & Betts,

Clarke ; on application to whom, he refused payment, un-
less the attorney would allow him to retain the amount of a
fee bill, which the attorney would not discount, and which
the court decided the sheriff had no right to retain. This
fee bill is not spread upon the record, nor described. The
attorney, besides his authority as such, had a written sealed
power from Stokes and Betts to collect this debt; the ac-
knowledgment of which power was proved by a witness, who
was present at its execution ; but the subscribing witness,
though alive and resident in the commonwealth, was not pro-
duced. Of this written authority, the deputy Jones was ap-
prized at the time of the demand of payment; but it was that
inspected by him, nor by Clarke, nor by the high sheriff; por
did Jones, at the time of the demand, make any objection to
the attorney's authority to receive the money. Stokes and
Betts did not reside in Pittsylvania, nor had any known agent
therein ; nor did the attorney reside there, though he prac-
tised regularly in the courts of that county. And his authori-
ty to collect this debt had never been revoked.

Such being the evidence, the court, without considering
whether the written authority was sufficiently proved or not,
held, that the demand by the attorney at law, entitled Stokes
and Betts to this motion;" and gave judgment for the amount
of the execution, with 15 per centum per annum interest,
from the return day, (subject to a small discount,) and costs :
whereupon the defendant appealed.

October 26th, 1815, the president pronounced the court's opinion that the judgment be affirmed.

Crutcher and others against Crutcher's Executor argued Octo

ber, 21st, 1815, and his securities.

a

may be

Thomas CRUTCHER and others, on the 22d of August, 1. If a decree

be pronounc1809, exhibited their bill, in the superior court of chancery ed, by a supe

rior court of for the Richmond district, against Thomas Crutcher, execu

chancery, tor of Thomas Cruicher deceased, and Christopher Blackburn against an exe

cutor, in a suit and Reuben Chapman, his securities ;-stating, among other brought things, that they had obtained a decree, in the superior court

and his securi. of chancery for the district of Williamsburg, against the said ties; but with

out charging, executor, for the sums stated in the bill; that he had re

or exonerating moved 10 Kentucky, aud they could not obtain payment of them by such

decree ; and him; that his securities Blackburn and Chapman were par- the executor

reinove out of ties to that suit, but no decree, either charging, or exone

the commonrating them from their ultimate responsibility, had been wealth, with

out satisfying made in that cause. The bill alleged, also, that the desen- the same; a

second suit dants, Blackburn and Chapman, had received from the executor property enough to satisfy the said decree. The plain- brought tiffs, therefore, prayed relief against them, as well as the against him

and them, in executor; also, for general relief.

the superior

court of chan. Blackburn and Chapman filed their answers, admitting cery of any themselves to be securities; that they held some funds for other district,

in which the their indemnification ;-and that the executor had removed securities re

side, to get sato Kentucky ;-alleging, too, that some of the plaintiffs were tisfaction from residents of that state, and had received their proportions them. ~ See

the cases of of the decree.

Turner and .

other's A copy of the record and decree of the Williamsburg Chinn's execuchancery court was exhibited. The cause was regularly tors and others,

1 I & I 53, heard; publication having been made against the absent de- Gordon's admi fendant.

nistrators y, the

Justices of FreChancellor TAYLOR was of opinion, “that, as the juris- derick, 1 Munf.

p. 1; Catlett diction of the superior court of chancery at Williamsburg and others v. first attached in this case, by the institution there of the Carter's erecu

tors, 2 Nunf

24 ; Meade and others v. Brooking, 3 Munf. 548; Hairston v. Hughes and others, 3 Munf. 568.(1.) (1.) Note. But see the acts of 1813, ch. 13, p. 40.

3 M

VOL. IV.

OCTOBER, suit in the bill mentioned, that court, and not this, should 1815.

carry into effect the object of that suit, which would render Crutcher, &c. the present bill unnecessary; and, as this objection appeat- .

ed by the bill, a plea to the jurisdiction would have been
Crutcher's ex-
ecutor, &c. improper.” He therefore decreed, that the bill of the plain-

tiffs be dismissed, and that they pay to the defendants, Black-
burn and Chapman, their costs. From this decree che com•
plainants appealed.

fes: Thi 25k dani

v.

Thursday, October 26th, 1815. The president pronounced the court's opinion, that, as Thomas Crutcher, the executor of Thomas Crutcher deceased, the defendant, against whom the decree was rendered in the case among the exhibits, is alleged to have removed to the state of Kentucky since the rendition thereof; and as the appellees Christopher Blackburn and Reuben Chapman reside within the jurisdiction of the chancery court directed by law to be holden in Richmond, and not within that directed to be held in Williams. burg, there is error in the decree now before us, in having decided that the last mentioned court had exclusive jurisdic. tion in the case, and not the former.

Decree reversed; and cause remanded to the court of chancery, to be proceeded in as to the appellees Christopher Blackburn and Reuben Chapman; and liberty also reserved to them to shew that the demand of the appellants has been satisfied, either in the whole, or in part, by the appellee Thomas Crutcher.

Argued Tues.

Penner against Cooper. day October 24th, 1815.

THIS was an action of trespass, for killing a mare, brought 1. A declaration, not upon by the appellant against the appellee, in the County Court of oath, by a per- Montgomery. son not a party to the cause, At the trial, on the plea of not guilty, the counsel for the that he committed +he

defendant asked a witness if he had not heard one Perry con• trespass for which the suit is brought, cannot be given in evidence to exculpate the defendant.

OCTOBER,

1815.

Penner

V. Cooper.

fess that he had killed the mare in the declaration mentioned.
The counsel for the plaintiff objected to the question, and
asked the opinion of the court. The counsel for the defen-
dant insisted, as Perry could not be compelled to give testi-
mony with regard to this matter, if present in court, because
he might thereby charge himself with damages, that, there,
fore, his declaration not upon oath might be heard : the court
was of opinion with the counsel for the defendant, and suf.
fered the question to be asked of the witness; instructing
the jury to weigh the circumstances under which the con-
fession was made : to which opinion of the court the plain-
tiff's counsel filed a bill of exceptions.

Verdict and judgment for the defendant, which being af,
firmed by the Superior Court of law, the plaintiff again ap-
pealed to this court.

Wickham for the appellant. This case depends on a sine gle proposition. The question is, whether declarations not upon oath, by a person no party to the cause, that he was guilty of the trespass, could be given in evidence by the defendant ?

It is clear law that hearsay evidence is not admissible, except in cases of pedigree, ancient boundaries, and the like. That person might have been examined as a witness, so far as to have discharged the defendant without charging himself; for this he could have done without being compelled to acknowledge that he killed the mare himself. In the famous trial of Lord Melville, a majority of the judges were of opinion that Mr. Trotter ought to be examined, notwithstanding the objection of interest. But suppose this witness could not be examined : does it follow that the court was authorized to dispense with the established rule of law, that testimony is not to be received but upon oath? Such person, if brought to his oath, or if sued by the plaintiff, might say that he spoke the words in jest, that he could prove he was an hundred miles off at the time the mare was killed. Thus, by a combination between him and the defendant, the plaintiff might be defeated altogether.