http://lawlibrary.wm.edu/wythepedia/api.php?action=feedcontributions&user=Emolivier&feedformat=atomWythepedia: The George Wythe Encyclopedia - User contributions [en]2024-03-29T11:29:46ZUser contributionsMediaWiki 1.27.5http://lawlibrary.wm.edu/wythepedia/index.php?title=Fowler_v._Saunders&diff=37498Fowler v. Saunders2015-04-09T14:13:45Z<p>Emolivier: </p>
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<div>{{DISPLAYTITLE:''Fowler v. Saunders''}}<br />
[[File:WytheFowlerVSaunders1852.jpg|link=Media:WytheDecisions1852FowlerVSaunders.pdf|thumb|right|400px|First page of the opinion [[Media:WytheDecisions1852FowlerVSaunders.pdf|''Fowler v. Saunders'']], 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).]]<br />
[[Media:WytheDecisions1852FowlerVSaunders.pdf|''Fowler v. Saunders'']], Wythe 322 (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), 322.</ref> was a dispute over who owned slaves in which Wythe interpreted the intended meaning and application of Virginia statutes.<br />
__NOTOC__<br />
==Background==<br />
Thomas Sale sent his daughter, Susanna, and her husband, Alexander Saunders, a number of slaves following their marriage. In his will, Sale gave the Saunderses a life interest in those slaves and any children those slaves may produce. Upon Sale's death, the slaves and their descendants were to pass to his daughter's children. Susanna produced a daughter, Lucy Saunders, but later married William Fowler following Alexander Saunders's death. Fowler obtained possession of the slaves after the marriage. Instead of the slaves passing to Lucy after Sale died, the Fowlers retained possession. <br />
<br />
James Patterson, Lucy's guardian, supposedly claimed that Lucy was entitled to the slaves now that Sale had passed on as afforded to her in his will. The Fowlers filed suit in the High Court of Chancery to settle the issue. The court found in Lucy's favor, and affirmed the dispensations in Sale's will.<br />
<br />
''Fowler v. Saunders'' was reported as a [[Between Fowler and Saunders|supplemental pamphlet]] in 1798 or later,<ref>George Wythe, [[Between Fowler and Saunders|''Between William Fowler and Susanna His Wife, Plaintiffs, and, Lucy Saunders, an Infant, by James A. Patterson, Her Guardian, Defendent'' [''sic'']; ''Between Parke Goodall and John Clough, Plaintiffs, and, John Bullock, the Younger, Defendent'' [''sic'',] ]](Richmond, VA: Thomas Nicolson, 1798?).</ref> printed by Thomas Nicolson of Richmond, Virginia, who had published [[Decisions of Cases in Virginia by the High Court of Chancery|Wythe's Reports]] in 1795.<ref>Charles Evans, ''[[American Bibliography]],'' vol. 11 (1942), 122. Evans mistakenly reports the date of publication as 1796.</ref><br />
<br />
==The Chancery Court's Decision==<br />
In 1758 the Virginia legislature enacted a statute providing that a gift of slaves would not be valid without the provision of a writing passing title and right to those slaves.<ref>An Act for Preventing Fraudulent Gifts of Slaves, Sept. 1758, in 7 ''The Statutes at Large; Being a Collection of All the Laws of Virginia'', 237 (William Waller Hening ed., Richmond 1820).</ref> The statute was intended to prevent attempts to retain the legal rights to a group of slaves while at once dispensing of physical possession, an act which was deemed to defraud the public as to whom the slaves belonged.<br />
<br />
In 1787, the legislature passed a declaratory statute (intended to explain a previous law's meaning) stating that the 1758 Act did not require a gift of slaves to be confirmed in writing if it was a gift from a person to an heir, and if the heir kept possession of the slaves after the gift so that the heir was considered the slaves' owner. (Apparently up to that point many Virginia courts were ruling otherwise.)<ref>An Act to Explain and Amend the Acts for Preventing Fraudulent Gifts of Slaves, Oct. 1787, in 12 ''The Statutes at Large; Being a Collection of All the Laws of Virginia'', 505 (William Waller Hening ed., Richmond 1823).</ref><br />
<br />
Although the 1758 and 1787 statutes did not speak to cases in which the slaves were gifted or transferred in consideration of marriage, the court depended on them for its decision. Wythe said that the 1758 Act was only intended to prevent fraudulent situations where a person pretends to give away ownership of slaves while actually retaining it; the 1787 Act makes that clear. The Fowlers argued that they married before 1787, so that Act did not apply to them. Wythe said that because the 1787 Act was a declaratory act, it was only restating the law as it already was under the 1758 Act, rather than creating new law. (Wythe cited Francis Bacon's ''[[Of the Advancement and Proficiencie of Learning]]'' as support.<ref>Francis Bacon, "Aphorism LI," in ''[[Of the Advancement and Proficiencie of Learning]]'' (Oxford: Printed by Leon. Lichfield for Rob. Young & Ed. Forrest, 1640), 448.</ref>) Therefore, Sale's gift of the slaves to Alexander and Susanna Saunders was valid, even without a formal writing. <br />
<br />
The Fowlers also argued that the slaves were lent rather than gifted, but Wythe said that the burden was on the Fowlers to prove this, which they had not. The Court found that the slaves were a gift because Saunders took the slaves into his possession and exercised full dominion over them, so the default assumption is that Sale intended to give the slaves to Saunders. Having so determined, the Court required the Fowlers to deliver to Patterson the slaves conveyed by Sale, the slaves' children, and the profits generated by those slaves since Sale's death, with the exception of any rights Susanna might have inherited from Alexander.<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) 2:441. The editor of the second edition of Wythe's Reports noted that this still left an important question unanswered: exactly where did Lucy's right to the slaves come from? If it came from Sale's will, then Susanna would still have the right to the slaves during Susanna's lifetime. If Lucy's right was inherited through Alexander, then the right to the slaves immediately went to Lucy. Wythe, ''Decisions of Cases in Virginia by the High Court,'' 328, Footnote *.</ref><br />
<br />
==In the Supreme Court of Appeals of Virginia==<br />
The Fowlers appealed Wythe's decision to the Virginia Supreme Court, which said that the facts were not sufficiently developed for a court to be able to decide the merits of the case.<ref>''Fowler v. Saunders'', 8 Va. 361 (1798).</ref> The Fowlers bill was a ''bill quia timet'' (a bill asking a court to enjoin a probable future harm<ref>"''Quia timet''", in ''Black's Law Dictionary'', 10th ed. (St. Paul, MN: Thomson Reuters, 2014), 1443.</ref>), but the Fowlers presented no evidence that there was any danger of Patterson actually trying to claim the slaves in Lucy's name. Supreme Court President Edumund Pendleton expressed doubt that Susanna had anything to do with the suit at all, and wondered aloud if the suit was a ploy by William Fowler to claim the slaves for himself.<ref>''Fowler v. Saunders'', 8 Va. at 363.</ref><br />
<br />
The Supreme Court ordered the Chancery Court to dismiss the Fowlers' bill, ordered Saunders to pay the Fowlers' court costs at the Supreme Court level, and ordered the Fowlers to pay Saunders's court costs at the Chancery Court level.<br />
==See also==<br />
*[[Between Fowler and Saunders]]<br />
<br />
==References==<br />
<references/><br />
<br />
[[Category:Cases]]</div>Emolivierhttp://lawlibrary.wm.edu/wythepedia/index.php?title=Fowler_v._Saunders&diff=37240Fowler v. Saunders2015-03-31T17:35:39Z<p>Emolivier: </p>
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<div>{{DISPLAYTITLE:''Fowler v. Saunders''}}<br />
[[File:WytheFowlerVSaunders1852.jpg|link=Media:WytheDecisions1852FowlerVSaunders.pdf|thumb|right|300px|First page of the opinion [[Media:WytheDecisions1852FowlerVSaunders.pdf|''Fowler v. Saunders'']], 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).]]<br />
[[Media:WytheDecisions1852FowlerVSaunders.pdf|''Fowler v. Saunders'']], Wythe 322 (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), 322.</ref> was a dispute over who owned slaves in which Wythe interpreted the intended meaning and application of Virginia statutes.<br />
__NOTOC__<br />
==Background==<br />
Thomas Sale sent his daughter, Susanna, and her husband, Alexander Saunders, a number of slaves following their marriage. In his will, Sale gave the Saunderses a life interest in those slaves and any children those slaves may produce. Upon Sale's death, the slaves and their descendants were to pass to his daughter's children. Susanna produced a daughter, Lucy Saunders, but later married William Fowler following Alexander Saunders's death. Fowler obtained possession of the slaves after the marriage. Instead of the slaves passing to Lucy after Sale died, the Fowlers retained possession. <br />
<br />
James Patterson, Lucy's guardian, supposedly claimed that Lucy was entitled to the slaves now that Sale had passed on as afforded to her in his will. The Fowlers filed suit in the High Court of Chancery to settle the issue. The court found in Lucy's favor, and affirmed the dispensations in Sale's will.<br />
==The Chancery Court's Decision==<br />
In 1758 the Virginia legislature enacted a statute providing that a gift of slaves would not be valid without the provision of a writing passing title and right to those slaves.<ref>An Act for preventing fraudulent gifts of Slaves, Sept. 1758, in 7 ''The Statutes at Large; Being a Collection of All the Laws of Virginia'', 237 (William Waller Hening ed., Richmond 1820).</ref> The statute was intended to prevent attempts to retain the legal rights to a group of slaves while at once dispensing of physical possession, an act which was deemed to defraud the public as to whom the slaves belonged.<br />
<br />
In 1787, the legislature passed a declaratory statute (intended to explain a previous law's meaning) stating that the 1758 Act did not require a gift of slaves to be confirmed in writing if it was a gift from a person to an heir, and if the heir kept possession of the slaves after the gift so that the heir was considered the slaves' owner. (Apparently up to that point many Virginia courts were ruling otherwise.)<ref>An act to explain and amend the acts for preventing fraudulent gifts of slaves, Oct. 1787, in 12 ''The Statutes at Large; Being a Collection of All the Laws of Virginia'', 505 (William Waller Hening ed., Richmond 1823).</ref><br />
<br />
Although the 1758 and 1787 statutes did not speak to cases in which the slaves were gifted or transferred in consideration of marriage, the court depended on them for its decision. Wythe said that the 1758 Act was only intended to prevent fraudulent situations where a person pretends to give away ownership of slaves while actually retaining it; the 1787 Act makes that clear. The Fowlers argued that they married before 1787, so that Act did not apply to them. Wythe said that because the 1787 Act was a declaratory act, it was only restating the law as it already was under the 1758 Act, rather than creating new law. (Wythe cited Francis Bacon's ''[[Of the Advancement and Proficiencie of Learning]]'' as support.<ref>Francis Bacon, ''[[Of the Advancement and Proficiencie of Learning]]'' (Oxford: Printed by Leon. Lichfield for Rob. Young & Ed. Forrest, 1640), Book VIII, Ch. III, Aphorism LI.</ref>) Therefore, Sale's gift of the slaves to Alexander and Susanna Saunders was valid, even without a formal writing. <br />
<br />
The Fowlers also argued that the slaves were lent rather than gifted, but Wythe said that the burden was on the Fowlers to prove this, which they had not. The Court found that the slaves were a gift because Saunders took the slaves into his possession and exercised full dominion over them, so the default assumption is that Sale intended to give the slaves to Saunders. Having so determined, the Court required the Fowlers to deliver to Patterson the slaves conveyed by Sale, the slaves' children, and the profits generated by those slaves since Sale's death, with the exception of any rights Susanna might have inherited from Alexander.<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) 2:441. The editor of the second edition of Wythe's Reports noted that this still left an important question unanswered: exactly where did Lucy's right to the slaves come from? If it came from Sale's will, then Susanna would still have the right to the slaves during Susanna's lifetime. If Lucy's right was inherited through Alexander, then the right to the slaves immediately went to Lucy. Wythe 328, Footnoe *.</ref><br />
<br />
==In the Supreme Court of Appeals of Virginia==<br />
The Fowlers appealed Wythe's decision to the Virginia Supreme Court, which said that the facts were not sufficiently developed for a court to be able to decide the merits of the case.<ref>''Fowler v. Saunders'', 8 Va. 361 (1798).</ref> The Fowlers bill was a ''bill quia timet'' (a bill asking a court to enjoin a probable future harm<ref>"''Quia timet''", in ''Black's Law Dictionary'', 10th ed. (St. Paul, MN: Thomson Reuters, 2014), 1443.</ref>), but the Fowlers presented no evidence that there was any danger of Patterson actually trying to claim the slaves in Lucy's name. Supreme Court President Edumund Pendleton expressed doubt that Susanna had anything to do with the suit at all, and wondered aloud if the suit was a ploy by William Fowler to claim the slaves for himself.<ref>''Fowler v. Saunders'', 8 Va. at 363.</ref><br />
<br />
The Supreme Court ordered the Chancery Court to dismiss the Fowlers' bill, ordered Saunders to pay the Fowlers' court costs at the Supreme Court level, and ordered the Fowlers to pay Saunders's court costs at the Chancery Court level.<br />
==References==<br />
<references/><br />
<br />
[[Category:Cases]]</div>Emolivierhttp://lawlibrary.wm.edu/wythepedia/index.php?title=Field_v._Harrison&diff=37224Field v. Harrison2015-03-31T16:50:57Z<p>Emolivier: </p>
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<div>{{DISPLAYTITLE:''Field v. Harrison''}}<br />
[[File:WytheFieldVHarrison1852.jpg|link=Media:WytheDecisions1852FieldVHarrison.pdf|thumb|right|300px|First page of the opinion [[Media:WytheDecisions1852FieldVHarrison.pdf|''Field v. Harrison'']], 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:WytheDecisions1852FieldVHarrison.pdf|''Field v. Harrison'']], Wythe 273 (1794),<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), 273.</ref> involved two people who had jointly agreed to repay a debt. One of the joint debtors died before the other. The decision discussed whether the dead debtor's representatives could still be held liable for the debt. Wythe offers another extensive discussion of British caselaw's irrelevance as precedent in the United States, as well as a summary of the reason for equity's existence.<br />
__NOTOC__<br />
==Background==<br />
James Field loaned £3000 to William Claiborne. David Minge agreed to sign a bond as a surety (a co-signer equally liable for repaying the loan) for Claiborne on the promise to repay Field £1500 plus interest. <br />
<br />
Minge died before Claiborne, and Claiborne declared bankruptcy. <br />
<br />
James Field died, and the executrix of his estate, Margaret Field, sued Minge's estate to recover the loan amount. Margaret Field's suit was rejected by the common-law court because Minge's and Claiborne's bond created ''joint liability''. Joint liability created a ''right of survivorship'', which meant that the entire liability fell upon the living borrower listed on the bond (Claiborne) after the other borrower (Minge) died. Margaret Field then filed a bill with the High Court of Chancery against Christiana Harrison (the executrix of Minge's estate) to recover the money.<br />
<br />
Harrison demurred (a pleading agreeing that everything Field said in her complaint was true, but did not state a valid claim). Harrison said that Minge's liability for the loan disappeared with his death, that Field's bill "contained no equity", and that Field might still have a valid action in a court of law against Claiborne. <br />
==The Court's Decision==<br />
The High Court of Chancery ordered Minge's estate to pay the £1500 plus interest to Field. The Chancery Court rejected Harrison's claim that Minge's estate was no longer liable due to Minge's death, and also rejected the idea that Field's bill had "no equity". Wythe deemed the fact that Field might still be able to sue Claiborne in a court of law irrelevant. Even if the common law ended Minge's liability on the bond with his death, a chancery court could give Field a remedy, because death does not discharge a co-debtor's duty under equity.<br />
<br />
Harrison appealed the Chancery Court's decision to the Virginia Supreme Court of Appeals.<ref>''Harrison v. Field'', 2 Va. (2 Wash.) 136 (1795).</ref> Margaret Field claimed that James Field did not learn until after Minge's death that the bond was for ''joint liability'' instead of ''joint and several liability'', as James Field thought it was (in which case, Minge's liability would have passed down to Minge's estate and heirs). In addition, James Field was not present when Minge and Claiborne executed the bond.<ref>This information was included in the Supreme Court's decision, so it is unclear whether Field made these arguments before Wythe.</ref> Harrison replied that Claiborne was in good financial condition when he took the loan from James Field, and that as far as Harrison knew, Claiborne did not use Minge's credit to get the loan. In addition, Harrison also asserted that neither fraud nor error was involved in making Minge and Claiborne jointly liable instead of jointly and severally liable.<br />
<br />
The Supreme Court reversed the Chancery Court. Minge did not borrow or use any of the money that Field loaned to Claiborne, and there did not appear to be any fraud or error made when making the bond for joint liability instead of joint and several. Therefore, equity should not extend Minge's liability any further than the common law would, and Minge's liability for the bond ended with his death.<br />
==Wythe's Discussion==<br />
Wythe believed that the Chancery Court's decision "will be thought. . .by most other men, to be consonant with purest principles of justice."<ref>Wythe, ''Decisions of Cases,'' 274.</ref> He took as self-evident the idea that a person who co-signs a loan as a guarantor is just as duty-bound to repay the lender as the person who borrowed the money, and that if the guarantor is unable to perform that duty, then the guarantor's heirs are equally bound to that duty if the guarantor's estate has enough funds. Wythe said that the common law dictates that the only thing that would eliminate a person's obligation under a contract is the performance of their duty under the contract or the consent of the person the duty was owed to. In this case, Wythe defined the "common law" as "the law common to all men. . .the law of nature and reason", which he distinguished from the law created by "the disciples of those who can be eloquent encomiasts of the most barbarous parts of what, by some of them, is alleged to have been the antient common law of England."<ref>Ibid., 274, fn. a.</ref><br />
<br />
Wythe iterated the rationale for courts of equity. Equity is there to fix defects that unavoidably appear in the exercise of the common law. Equity anticipates and provides remedies that the common law did not consider. Equity enhances insufficient legal remedies, and restrains excessive ones. Equity is also there to provide remedies that would be available to people through the common law if not for legal procedures and circumstances beyond the parties' control. Equity is a complement to the common law, not an obstacle.<br />
<br />
Wythe offered the example of a person, F, who loans money to another person, C. C seals and delivers a writing confirming his obligation to repay F the money, but F loses the writing. From the viewpoint of "[m]en, who delight in quaintness of phrase, and suppose themselves to discover it in pith of argument."<ref>Wythe does not name anyone specifically, but it seems likely this was a shot at [[Edmund Pendleton]].</ref> F has lost the right to repayment by losing the evidence of that obligation.<br />
<br />
Wythe criticized the common-law principle that if the cause of action to recover title in property had to be temporarily suspended due to procedural issues, then that cause of action was permanently extinguished, unrevivable even in equity. Wythe cited the cases of ''Fryer v. Gildridge''<ref>''Fryer v. Gildrige'', (1613?) 80 Eng. Rep. 160-61, (C.P.); [[Reports of that Learned Sir Henry Hobart Knight|Hobart]] 10.</ref> from [[Reports of that Learned Sir Henry Hobart Knight|Hobart's Reports]] and ''Wankford v. Wankford''<ref>''Wankford v. Wankford'', (1699) 91 Eng. Rep. 265 (K.B.); 1 [[Reports of Cases Adjudged in the Court of King's Bench (Salkeld)|Salk.]] 299. </ref> from [[Reports of Cases Adjudged in the Court of King's Bench (Salkeld)|Salkeld's Reports]] for this idea. In ''Fryer'', the lender died and made the wife of one of the borrowers executrix of the lender's estate, which the court said suspended the lender's right to go after the borrower's money. In ''Wankford'', the borrower himself became the executor of the lender's estate. In both cases, the courts held that the act of making the borrower or his wife executor of the lender's estate suspended the lender's right to file suit, and that once that right is suspended, the action is permanently extinct.<ref>The judge in ''Fryer'' though, seemed to find this an iffy basis for the ruling. The executrix of the lender's estate later also became the executrix of the estate of another of the borrowers, and that estate had sufficient funds to pay the lender; the judge in ''Fryer'' called this the "surer" reason for his verdict. ''Fryer v. Gildrige'', (1613?) 80 Eng. Rep. at 161; Hobart 10.</ref><br />
<br />
In ''Cage v. Acton,''<ref>''Cage v. Acton'', (1700) 91 Eng. Rep. 1244; 1 [[Reports of Cases Argued and Adjudged in the Courts of King's Bench and Common Pleas|Ld. Raym.]] 515 (11 Will. III).</ref> (from [[Reports of Cases Argued and Adjudged in the Courts of King's Bench and Common Pleas|Lord Raymond's Reports]], [https://en.wikipedia.org/wiki/John_Holt_%28judge%29 English Chief Justice Holt] said that chancery courts should provide no relief in a case where the common law cancels a debt because the lender married the borrower.<ref>''Id.'' at 1249. Interestingly, C.J. Holt was outvoted in this case; the other two judges held that the borrower and lender's marriage did not cancel the debt.</ref> Wythe remarked that enough English courts of equity had approved Holt's doctrine that "some" might consider it binding caselaw that would speak against Wythe's verdict in ''Fields v. Harrison''. Wythe also noted, however, that in a later stage of Cage and Acton's battle found in [[Cases Argued and Adjudged in the High Court of Chancery|Vernon's Reports]], the chancellor felt otherwise, and held that equity would grant relief in that situation.<ref>''Acton v. Peirce'', (1704) 23 Eng. Rep. 908; 2 [[Cases Argued and Adjudged in the High Court of Chancery|Vern.]] 480.</ref> In addition, Wythe said that one reason for Holt's doctrine was to keep chancery and common-law decisions uniform with the English ecclesiastical courts. At any rate, Wythe saw no need to hold to precedent if it flew in the face of "natural justice."<ref>Wythe, ''Decisions of Cases'' 277, fn. b.</ref><br />
<br />
Wythe offered another illustration of what could result from following the law as the Virginia Supreme Court described it in this case - this time, F lends money to C and M. C and M sign a bond promising to repay F, and the courts interpret the wording of the bond to mean that C and M's liability to F is joint, rather than joint and several. If M dies before C does, F cannot sue both M's estate and C. On top of that, F cannot sue M's estate, because the joint obligation passed entirely to C on M's death. In a situation such as this, Wythe would have allowed a court of equity to require M's estate to repay F the money owed, giving F relief that the common law could not. Wythe seemed to have trouble with the need for a distinction between joint and joint and several liability, deeming it "originally perhaps a reverie of some dull drowsy dreaming judge, which his successors, too lazy to examine it, have suffered time to mature into an authority."<ref>Ibid., fn. c.</ref> Since M would have been liable for the full amount had C died, and vice-versa, then surely the joint liability was meant to be joint and several.<ref>Wythe did not seem to think much of judges inferring a right of survivorship when reading a contract. He also found little rhyme or reason behind courts' distinction between tenancy in common and joint tenancy. See ''[[Farley v. Shippen]]'', Wythe 254 (Va. 1794).</ref> <br />
<br />
In a footnote, Wythe fashions his own explanation for why the common law created a right of survivorship for joint liability.<ref>Wythe, ''Decisions of Cases'', 278, fn. d.</ref> When one of multiple borrowers dies, the common law allows a lender to sue the surviving borrowers for the entire amount, supposedly for the borrower's benefit. Common law does not allow someone to join a "proper" party (i.e., a person being sued as themself) and a "representative" party (e.g., the executor of someone's estate or someone acting as a guardian for a child) in the same case. So, Field could not include Minge's estate and Claiborne in the same lawsuit. Therefore, the law allows a lender to sue the surviving borrower, and then allows the surviving borrower to sue the deceased borrower's estate for compensation. Wythe expressed hope that he would be as happy with his improvised explanation as Holt was with his explanation in as reported in [[Reports of Cases Argued and Determined in the High Court of Chancery, and of Some Special Cases Adjudged in the Court of King's Bench|Peere Williams's Reports]] for the distinction between joint tenancies and tenancies in common.<ref>''Fisher v. Wigg'', (1700) 24 Eng. Rep. 275, 278; 1 P. Will. 18, 21. Holt believed that courts preferred joint tenancies because they did not like seeing estates broken up into fractions, with the side effect of duplicating services.</ref> <br />
<br />
Something puzzled Wythe, though: if the common law wanted to be sure that lenders had a remedy, why did judges create the law so that a borrower's death got rid of their obligation under joint liability, even if the other borrower was bankrupt?<ref>Wythe appears to cite to ''Towers v. Moor'', (1689) 23 Eng. Rep. 673; 2 [[Cases Argued and Adjudged in the High Court of Chancery|Vern.]] 99, for this idea. While ''Towers'' does involve joint liability and a dead borrower, it does not seem to say whether the surviving borrower was bankrupt.</ref> Wythe said that lawyers' and judges' unfamiliarity with the common law they profess to interpret has been a longstanding problem. Wythe quotes an excerpt from John Taylor's ''[[Elements of the Civil Law]]'' in which a lawyer from historical times decries his contemporaries' obliviousness towards their profession's principles, taking whatever case they can find to pay the bills without regard for the ethical implications.<ref>John Taylor, ''Elements of the Civil Law'' (London: Charles Bathurst, 3d ed. 1769) 399.</ref> In the preface to his [[Reports of Select Cases in All the Courts of Westminster-Hall|case reports, Justice Fortescue-Aland]] catches even [http://en.wikipedia.org/wiki/Edward_Coke Edward Coke], the high priest of the common law and England's [http://en.wikipedia.org/wiki/Servius_Sulpicius_Rufus Sulpicius],<ref>Here, Wythe is referring to [http://en.wikipedia.org/wiki/Servius_Sulpicius_Rufus Servius Sulpicius Rufus], a highly-regarded Roman legal scholar. Specifically, Wythe cites [[M. Fabii Quinctiliani de Institutione Oratoria|Quintilian's description in Book XI, Chapter 1 of the ''Institutione Oratoria'']] of Sulpicius as a ''juris antistes'' (roughly, a "bishop of law"). In this excerpt from the ''Institutione Oratoria'', Qunitilian describes how Cicero, Sulpicius's teacher, was able to advocate for [http://en.wikipedia.org/wiki/Lucius_Licinius_Murena Murena's] election as consul over Sulpicius while preserving Sulpicius's pride as much as possible. An interesting choice of excerpts by Wythe, since he is using it to illustrate how Justice Fortescue was pointing out an error by the "modern Sulpicius", Lord Edward Coke, as gently as possible.</ref> in an error about the common law's origins.<ref>John Fortescue-Aland, [[''Reports of Select Cases in All the Courts of Westminster-Hall'']] ([London] In the Savoy: Printed for H. Lintot, 1748) xi.</ref><br />
<br />
Wythe offered a pair of further examples to illustrate the odd position the Supreme Court had taken:<br />
*In the first example, a single borrower owes money to two joint lenders. One of the lenders dies, and the other one vanishes with the bond that proved the debt existed. Would a court of equity say that the borrower's debt is cleared?<br />
*In the second example, the borrowers Claiborne and Minge die at the same time with no way to prove who died first (e.g., in a shipwreck). Would a court in equity free Minge's estate from the debt?<br />
<br />
Wythe took particular issue with the idea that the important factor for the Supreme Court was whether Minge had used any of the money James Field loaned to Claiborne. He dissected the first sentence of the Supreme Court's decision, mainly to reiterate that he disagreed with the Supreme Court's idea that Minge's liability on the loan ended with Minge's death. Wythe compares Claiborne's and Minge's relation to that of the debtor and surety in the case of ''[[Pendleton v. Lomax]]''.<ref>''Pendleton v. Lomax'', Wythe 4 (Va. 1790). Wythe takes this opportunity to bemoan the poor sales of Wythe's Reports (''Field v. Harrison'' was originally published as a supplementary pamphlet); Wythe guessed that he had sold only 20 copies of the book. Wythe compared his situation to [[Plutarch's Lives|Plutarch's description]] of [http://en.wikipedia.org/wiki/Cato_the_Elder Cato the Elder's] latter years. Cato had frequently expressed contempt for Greek language and culture and actively fought what he perceived to be the "Hellenization" of Roman culture. When he turned around 80 years old, though, he began to try learning the language. Cato's contemporaries thought that Cato's late-in-life "rage" for trying to learn the language he had long despised was a punishment upon him. In much the same way, Wythe suggested (perhaps with a slightly droll tone) that his mania for printing all his decisions was a punishment for his frequent derision of Westmonasterian decisions. Wythe, ''Decisions of Cases'', 281, fn. e.</ref> Just as Pendleton the surety was able to recover from his co-surety Lomax, so should Minge have been able to recover from Claiborne. <br />
<br />
But Minge was not a surety for James Field; legally speaking, Minge was a debtor from Field's point of view - as much of a debtor as Claiborne. So why should Minge's estate be able to escape the debt by Minge's death when Claiborne's death would not have terminated his liability under the Supreme Court's logic? Wythe supposed that the Supreme Court was acting out of the desire for protecting an "innocent surety". Such charity, though, should be left to the person owed the debt, not to the court. By granting relief to Minge's estate, the Supreme Court could very well be taking food out of the mouths of Field's children. Whether a person agrees in a contract to perform a duty beneficial to another person or a duty detrimental to themselves is irrelevant as far as law and equity are concerned. Courts should not prioritize one person over another based on the type of act they performed. Minge signed on to an obligation, and Field's rights to recovery should not be diminished just because of the type of action Minge agreed to.<br />
<br />
The parties arguing before the Chancery Court cited caselaw precedent in favor of their positions, so Wythe seized the chance to repeat his views on the limited usefulness of cases as evidence of the law. Given a choice, Wythe preferred lawyers to refer to those cases while providing their own interpretation of what the cases meant, as opposed to straight quotations from the cases. He found it both "easier" and "more influential" when lawyers gave their own interpretation on the precedent's meaning.<ref>Wythe, ''Decisions of Cases'', 283-84.</ref> Overall, though, Wythe did not care much for the idea that something was true just because Aristotle said it was. Judges seem more concerned as to whether their decisions accord with each other as opposed to whether they jibe with common sense. Giving caselaw the aura of infallibility can become dangerous precedent: Wythe gave an example from [[Reports of Cases Argued and Adjudged in the Courts of King's Bench and Common Pleas|Lord Raymond's Reports]] of the House of Lords summoning King's Bench Chief Justice Holt and threatening to put him in the Tower of London because one of his judges issued a decision inconsistent with House of Lords caselaw.<ref>''R. v. Knollys'', (1694) 91 Eng. Rep. 904, 909; 1 [[Reports of Cases Argued and Adjudged in the Courts of King's Bench and Common Pleas|Ld. Raym.]] 10, 18 (6 Will. & Mar.). In the end, the Lords' "endeavours vanished in smoak."</ref> Although he wished it would happen, Wythe saw little chance of Americans breaking from their "superstitious veneration" for caselaw precedent.<ref>Wythe, ''Decisions of Cases'', 284, fn. f.</ref><br />
<br />
Harrison's attorney cited the chancery case of ''Ratcliffe v. Graves''<ref>''Ratcliffe v. Graves'', (1683) 23 Eng. Rep. 409; 1 [[Cases Argued and Adjudged in the High Court of Chancery|Vern.]] 196.</ref> to support his case. In ''Ratcliffe'', the Heathers were sureties for Elizabeth Ratcliffe, the executrix of her husband Walter's estate. The plaintiff was Walter's son, who was a minor when Walter died. Elizabeth was loaning out the money and earning interest from Walter's estate while the plaintiff was a minor, and the plaintiff sued for the interest. The plaintiff claimed that the Heathers fraudulently did not set aside enough resources to properly back the bond the law required for Elizabeth to administer the estate. The plaintiff asked the court to make the Heathers pay the amount of damages not covered by the bond, but the chancellor rejected the plaintiff's request, saying he would not require the Heathers to pay any more than the common law required. <br />
<br />
Wythe was unimpressed by this case's precedential value because the chancellor in ''Ratcliffe'' did not give any reason for his decision; what's more, the chancellor in ''Ratcliffe'' did not seem to put much thought in the decision, since he made the statement at the beginning of the hearing.<ref>There was more to the case; the plaintiff also sued Elizabeth for the interest she had earned on the money from Walter's estate.</ref> From Wythe's perspective, the case of ''Underwood v. Staney''<ref>''Underwood v. Staney'', (1666) 22 Eng. Rep. 703; 1 Chan. Cas. 77.</ref> was just as valid as ''Ratcliffe''. In ''Underwood'', the plaintiff was a lender who sued the dead borrower's estate and the borrower's surety for repayment. The executor of the borrower's estate said he had no money to repay, so the lender sued the surety. The chancellor in ''Underwood'' held that equity required the surety to repay the borrower; while the surety did not directly benefit from the loan, the lender had parted with his money, and the lender's loss was just as valid consideration as the surety's gain. The chancellor in ''Underwood'' offered no explanation for his decision, but neither did the chancellor in ''Ratcliffe'' - so why would one case be considered more worthy than the other? At least ''Underwood'' held to basic principles of justice.<br />
<br />
Wythe noted that several cases would allow a lender to get repaid on a loan if they lost the note that verified the debt's existence, but not if the borrower died before the surety. Wythe found this odd; if anything, he felt the reverse should apply, because a lender has no control over the borrower's death, but might be responsible for losing a piece of paper. One reason Wythe could think of for the distinction was that with the lost note, a court of equity was simply filling in the lost evidence on a pre-existing debt, while in the case of the dead borrower, the court of equity might be creating a new duty to repay that the common law did not require. This brought Wythe back to the question of whether a lender's right to repayment was destroyed, or a borrower's obligation simply nullfied, by the common law's lack of a remedy for the lender if the borrower died before the surety.<br />
<br />
A borrower's obligation to the lender can be discharged either by the borrower's act (i.e., repaying the loan under the agreed-upon terms) or by the lender's act (e.g., if the lender forgives the borrower's debt). A legal maxim states that "an act of the law shall never work a wrong."<ref>Bryan A. Garner, ed., "Actus legis nemini facit injuriam," in ''Black's Law Dictionary'' (St. Paul, MN: Thomson Reuters, 10th ed. 2014) 1898. Wythe does not give the source for this maxim, but it seems to be a well-established one.</ref> [[Works of Francis Bacon|Francis Bacon stated in his ''Maxims of the Law'']] that when points of law conflict with each other, courts should uphold the ideal which the law considers worthier, but that this rule should give way to other rules that are more humane or equitable.<ref>Francis Bacon, "Regula III. ''Verba fortius accipiuntur contra proferentem'' (A man's deeds and words shall be taken strongest against himself)" in ''The Works of Francis Bacon'' (London: Printed for A. Miller, against St. Clement's Church, in the Strand, 1740) 22-27.</ref> Bacon's ninth maxim states that if the law deprives someone of a remedy through no fault of their own, then the law should put that person in a better place than they were before, not a worse situation.<ref>Francis Bacon, "Regula IX. ''Quod remedio destituitur ipsa re valet si culpa absit''" in ''The Works of Francis Bacon'' (London: Printed for A. Miller, against St. Clement's Church, in the Strand, 1740) 27-28.</ref> Wythe could not imagine a legal mind such as Bacon discharging Minge's duty to pay, leaving Field with no remedy for the lost loan.<br />
<br />
Wythe saved a healthy dose of scorn for the part of the Supreme Court's decision that stated that no fraud or mistake seemed to occur when creating the bond for Claiborne's loan. Wythe said this line was so unnecessary that it almost seemed like satire. But it gave Wythe pause for thought: would it not have been fraud for Claiborne and Minge to have promised repayment to Field, but intending that Field would only be repaid while both parties were living or if Claiborne died before Minge? Even if Claiborne's and Minge's fraud was not intentional, Field should not be punished for signing a contract he did not mean to create - the Roman civil law according to [[Corpus Juris Civilis|Justinian's ''Digest'']] would agree.<ref>''Non videntur qui errant consentire'' ("Those who make mistakes are not considered to consent"). DIG. 50.17.116.2. (Ulpianus 11 ad ed.).</ref> A court of equity should therefore be able to grant relief to correct this mistake. If equity cannot grant relief only because the legal obligation was extinguished, then what is the purpose of equity?<br />
<br />
Wythe concluded his discussion by asking what would have happened if James Field were a foreign resident and the parties sealed the promise in that foreign country. Would the Supreme Court have ruled differently? If so, why the difference? If not, how can foreign citizens trust the American courts?<br />
<br />
==Works Cited or Referenced by Wythe==<br />
===Justinian's ''Digest''===<br />
Quotation in Wythe's opinion:<br />
<blockquote><br />
<tt><span style="color: #006600;">[B]y the roman civil law, ''non videntur, qui errant, consentire.'' Dig. lib. L tit. XVII. Reg. CXVI §2.</span></tt> Translation: ''He, who errs, seems not to consent.'' Wythe uses this maxim to demonstrate why a party who entered a contract because of the fraud of the other party ought not to be bound by that contract.<ref>Wythe, ''Decisions of Cases'', 289.</ref></blockquote><br />
<br />
For this quotation, Wythe most likely used his copy of the ''[[Corpus Juris Civilis]]'' which includes the ''Digest of Justinian''.<br />
<br />
===Plutarch's ''Parallel Lives (Cato the Elder)''===<br />
Quotation in Wythe's opinion:<br />
<blockquote><br />
<tt><span style="color: #006600;">...reporting his own adjudications too, which may be as unentertaining and unedifying as the senile garrulity of Cato in a language not his vernacular tongue. notwithstanding that work has been slighted, the author’s ''cacoethes blasphemandi'' in that way is so inveterate that it be pronounced ''insanabile.'' this ''opusculum'' may be slighted in the same manner; yet his ''cacoethes edendi'' will break forth, when such occasions as this present fit subjects for his lucubrations. </span></tt> Translation: ''cacoethes blaspehemandi''- “flaw of blaspheming”;<br />
''insanabile''- “incurable”; ''opusculum''- “trifle”; ''cacoethes edendi''- “flaw of eating”.<ref>Ibid., 281.</ref></blockquote><br />
<br />
===Quintilian's ''The Institutes of Oratory''===<br />
Quotation in Wythe's opinion:<br />
<blockquote><br />
<tt><span style="color: #006600;">Taylors elements of the civil law, p. 399. an error from a cause not altogether dissimilar, justice Fortescue, in the preface to his reports, hath detected in Coke himself, the English Sulpitius, the ''juris antisies'' of the common lawyers.</span></tt> Translation: Wythe wrote ''juris antisies'' but the text he was quoting from reads “juris antistes” meaning “master/authority/high priest of the law.” He uses the phrase to praise Coke as one of the most important authorities on the law.<ref>Ibid., 279.</ref></blockquote><br />
<br />
==References==<br />
<references/><br />
<br />
[[Category:Cases]]</div>Emolivierhttp://lawlibrary.wm.edu/wythepedia/index.php?title=Field_v._Harrison&diff=37046Field v. Harrison2015-03-26T15:26:35Z<p>Emolivier: </p>
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<div>{{DISPLAYTITLE:''Field v. Harrison''}}<br />
[[File:WytheFieldVHarrison1852.jpg|link=Media:WytheDecisions1852FieldVHarrison.pdf|thumb|right|300px|First page of the opinion [[Media:WytheDecisions1852FieldVHarrison.pdf|''Field v. Harrison'']], 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:WytheDecisions1852FieldVHarrison.pdf|''Field v. Harrison'']], Wythe 273 (1794),<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), 273.</ref> involved two people who had jointly agreed to repay a debt. One of the joint debtors died before the other. The decision discussed whether the dead debtor's representatives could still be held liable for the debt. Wythe offers another extensive discussion of British caselaw's irrelevance as precedent in the United States, as well as a summary of the reason for equity's existence.<br />
__NOTOC__<br />
==Background==<br />
James Field loaned £3000 to William Claiborne. David Minge agreed to sign a bond as a surety (a co-signer equally liable for repaying the loan) for Claiborne on the promise to repay Field £1500 plus interest. <br />
<br />
Minge died before Claiborne, and Claiborne declared bankruptcy. <br />
<br />
James Field died, and the executrix of his estate, Margaret Field, sued Minge's estate to recover the loan amount. Margaret Field's suit was rejected by the common-law court because Minge's and Claiborne's bond created ''joint liability''. Joint liability created a ''right of survivorship'', which meant that the entire liability fell upon the living borrower listed on the bond (Claiborne) after the other borrower (Minge) died. Margaret Field then filed a bill with the High Court of Chancery against Christiana Harrison (the executrix of Minge's estate) to recover the money.<br />
<br />
Harrison demurred (a pleading agreeing that everything Field said in her complaint was true, but did not state a valid claim). Harrison said that Minge's liability for the loan disappeared with his death, that Field's bill "contained no equity", and that Field might still have a valid action in a court of law against Claiborne. <br />
==The Court's Decision==<br />
The High Court of Chancery ordered Minge's estate to pay the £1500 plus interest to Field. The Chancery Court rejected Harrison's claim that Minge's estate was no longer liable due to Minge's death, and also rejected the idea that Field's bill had "no equity". Wythe deemed the fact that Field might still be able to sue Claiborne in a court of law irrelevant. Even if the common law ended Minge's liability on the bond with his death, a chancery court could give Field a remedy, because death does not discharge a co-debtor's duty under equity.<br />
<br />
Harrison appealed the Chancery Court's decision to the Virginia Supreme Court of Appeals.<ref>''Harrison v. Field'', 2 Va. (2 Wash.) 136 (1795).</ref> Margaret Field claimed that James Field did not learn until after Minge's death that the bond was for ''joint liability'' instead of ''joint and several liability'', as James Field thought it was (in which case, Minge's liability would have passed down to Minge's estate and heirs). In addition, James Field was not present when Minge and Claiborne executed the bond.<ref>This information was included in the Supreme Court's decision, so it is unclear whether Field made these arguments before Wythe.</ref> Harrison replied that Claiborne was in good financial condition when he took the loan from James Field, and that as far as Harrison knew, Claiborne did not use Minge's credit to get the loan. In addition, Harrison also asserted that neither fraud nor error was involved in making Minge and Claiborne jointly liable instead of jointly and severally liable.<br />
<br />
The Supreme Court reversed the Chancery Court. Minge did not borrow or use any of the money that Field loaned to Claiborne, and there did not appear to be any fraud or error made when making the bond for joint liability instead of joint and several. Therefore, equity should not extend Minge's liability any further than the common law would, and Minge's liability for the bond ended with his death.<br />
==Wythe's Discussion==<br />
Wythe believed that the Chancery Court's decision "will be thought. . .by most other men, to be consonant with purest principles of justice".<ref>Wythe, ''Decisions of Cases,'' 274.</ref> He took as self-evident the idea that a person who co-signs a loan as a guarantor is just as duty-bound to repay the lender as the person who borrowed the money, and that if the guarantor is unable to perform that duty, then the guarantor's heirs are equally bound to that duty if the guarantor's estate has enough funds. Wythe said that the common law dictates that the only thing that would eliminate a person's obligation under a contract is the performance of their duty under the contract or the consent of the person the duty was owed to. In this case, Wythe defined the "common law" as "the law common to all men. . .the law of nature and reason", which he distinguished from the law created by "the disciples of those who can be eloquent encomiasts of the most barbarous parts of what, by some of them, is alleged to have been the antient common law of England."<ref>Ibid., 274, fn. a.</ref><br />
<br />
Wythe iterated the rationale for courts of equity. Equity is there to fix defects that unavoidably appear in the exercise of the common law. Equity anticipates and provides remedies that the common law did not consider. Equity enhances insufficient legal remedies, and restrains excessive ones. Equity is also there to provide remedies that would be available to people through the common law if not for legal procedures and circumstances beyond the parties' control. Equity is a complement to the common law, not an obstacle.<br />
<br />
Wythe offered the example of a person, F, who loans money to another person, C. C seals and delivers a writing confirming his obligation to repay F the money, but F loses the writing. From the viewpoint of "[m]en, who delight in quaintness of phrase, and suppose themselves to discover it in pith of argument",<ref>Wythe does not name anyone specifically, but it seems likely this was a shot at [[Edmund Pendleton]].</ref> F has lost the right to repayment by losing the evidence of that obligation.<br />
<br />
Wythe criticized the common-law principle that if the cause of action to recover title in property had to be temporarily suspended due to procedural issues, then that cause of action was permanently extinguished, unrevivable even in equity. Wythe cited the cases of ''Fryer v. Gildridge''<ref>''Fryer v. Gildrige'', (1613?) 80 Eng. Rep. 160-61, (C.P.); [[Reports of that Learned Sir Henry Hobart Knight|Hobart]] 10.</ref> from [[Reports of that Learned Sir Henry Hobart Knight|Hobart's Reports]] and ''Wankford v. Wankford''<ref>''Wankford v. Wankford'', (1699) 91 Eng. Rep. 265 (K.B.); 1 [[Reports of Cases Adjudged in the Court of King's Bench (Salkeld)|Salk.]] 299. </ref> from [[Reports of Cases Adjudged in the Court of King's Bench (Salkeld)|Salkeld's Reports]] for this idea. In ''Fryer'', the lender died and made the wife of one of the borrowers executrix of the lender's estate, which the court said suspended the lender's right to go after the borrower's money. In ''Wankford'', the borrower himself became the executor of the lender's estate. In both cases, the courts held that the act of making the borrower or his wife executor of the lender's estate suspended the lender's right to file suit, and that once that right is suspended, the action is permanently extinct.<ref>The judge in ''Fryer'' though, seemed to find this an iffy basis for the ruling. The executrix of the lender's estate later also became the executrix of the estate of another of the borrowers, and that estate had sufficient funds to pay the lender; the judge in ''Fryer'' called this the "surer" reason for his verdict. ''Fryer v. Gildrige'', (1613?) 80 Eng. Rep. at 161; Hobart 10.</ref><br />
<br />
In ''Cage v. Acton''<ref>''Cage v. Acton'', (1700) 91 Eng. Rep. 1244; 1 [[Reports of Cases Argued and Adjudged in the Courts of King's Bench and Common Pleas|Ld. Raym.]] 515 (11 Will. III).</ref> (from [[Reports of Cases Argued and Adjudged in the Courts of King's Bench and Common Pleas|Lord Raymond's Reports]], [https://en.wikipedia.org/wiki/John_Holt_%28judge%29 English Chief Justice Holt] said that chancery courts should provide no relief in a case where the common law cancels a debt because the lender married the borrower.<ref>''Id.'' at 1249. Interestingly, C.J. Holt was outvoted in this case; the other two judges held that the borrower and lender's marriage did not cancel the debt.</ref> Wythe remarked that enough English courts of equity had approved Holt's doctrine that "some" might consider it binding caselaw that would speak against Wythe's verdict in ''Fields v. Harrison''. Wythe also noted, however, that in a later stage of Cage and Acton's battle found in [[Cases Argued and Adjudged in the High Court of Chancery|Vernon's Reports]], the chancellor felt otherwise, and held that equity would grant relief in that situation.<ref>''Acton v. Peirce'', (1704) 23 Eng. Rep. 908; 2 [[Cases Argued and Adjudged in the High Court of Chancery|Vern.]] 480.</ref> In addition, Wythe said that one reason for Holt's doctrine was to keep chancery and common-law decisions uniform with the English ecclesiastical courts. At any rate, Wythe saw no need to hold to precedent if it flew in the face of "natural justice".<ref>Wythe, ''Decisions of Cases'' 277, fn. b.</ref><br />
<br />
Wythe offered another illustration of what could result from following the law as the Virginia Supreme Court described it in this case - this time, F lends money to C and M. C and M sign a bond promising to repay F, and the courts interpret the wording of the bond to mean that C and M's liability to F is joint, rather than joint and several. If M dies before C does, F cannot sue both M's estate and C. On top of that, F cannot sue M's estate, because the joint obligation passed entirely to C on M's death. In a situation such as this, Wythe would have allowed a court of equity to require M's estate to repay F the money owed, giving F relief that the common law could not. Wythe seemed to have trouble with the need for a distinction between joint and joint and several liability, deeming it "originally perhaps a reverie of some dull drowsy dreaming judge, which his successors, too lazy to examine it, have suffered time to mature into an authority".<ref>Ibid., fn. c.</ref> Since M would have been liable for the full amount had C died, and vice-versa, then surely the joint liability was meant to be joint and several.<ref>Wythe did not seem to think much of judges inferring a right of survivorship when reading a contract. He also found little rhyme or reason behind courts' distinction between tenancy in common and joint tenancy. See ''[[Farley v. Shippen]]'', Wythe 254 (Va. 1794).</ref> <br />
<br />
In a footnote, Wythe fashions his own explanation for why the common law created a right of survivorship for joint liability.<ref>Wythe, ''Decisions of Cases'', 278, fn. d.</ref> When one of multiple borrowers dies, the common law allows a lender to sue the surviving borrowers for the entire amount, supposedly for the borrower's benefit. Common law does not allow someone to join a "proper" party (i.e., a person being sued as themself) and a "representative" party (e.g., the executor of someone's estate or someone acting as a guardian for a child) in the same case. So, Field could not include Minge's estate and Claiborne in the same lawsuit. Therefore, the law allows a lender to sue the surviving borrower, and then allows the surviving borrower to sue the deceased borrower's estate for compensation. Wythe expressed hope that he would be as happy with his improvised explanation as Holt was with his explanation in as reported in [[Reports of Cases Argued and Determined in the High Court of Chancery, and of Some Special Cases Adjudged in the Court of King's Bench|Peere Williams's Reports]] for the distinction between joint tenancies and tenancies in common.<ref>''Fisher v. Wigg'', (1700) 24 Eng. Rep. 275, 278; 1 P. Will. 18, 21. Holt believed that courts preferred joint tenancies because they did not like seeing estates broken up into fractions, with the side effect of duplicating services.</ref> <br />
<br />
Something puzzled Wythe, though: if the common law wanted to be sure that lenders had a remedy, why did judges create the law so that a borrower's death got rid of their obligation under joint liability, even if the other borrower was bankrupt?<ref>Wythe appears to cite to ''Towers v. Moor'', (1689) 23 Eng. Rep. 673; 2 [[Cases Argued and Adjudged in the High Court of Chancery|Vern.]] 99, for this idea. While ''Towers'' does involve joint liability and a dead borrower, it does not seem to say whether the surviving borrower was bankrupt.</ref> Wythe said that lawyers' and judges' unfamiliarity with the common law they profess to interpret has been a longstanding problem. Wythe quotes an excerpt from John Taylor's ''[[Elements of the Civil Law]]'' in which a lawyer from historical times decries his contemporaries' obliviousness towards their profession's principles, taking whatever case they can find to pay the bills without regard for the ethical implications.<ref>John Taylor, ''Elements of the Civil Law'' (London: Charles Bathurst, 3d ed. 1769) 399.</ref> In the preface to his [[Reports of Select Cases in All the Courts of Westminster-Hall|case reports, Justice Fortescue-Aland]] catches even [http://en.wikipedia.org/wiki/Edward_Coke Edward Coke], the high priest of the common law and England's [http://en.wikipedia.org/wiki/Servius_Sulpicius_Rufus Sulpicius],<ref>Here, Wythe is referring to [http://en.wikipedia.org/wiki/Servius_Sulpicius_Rufus Servius Sulpicius Rufus], a highly-regarded Roman legal scholar. Specifically, Wythe cites [[M. Fabii Quinctiliani de Institutione Oratoria|Quintilian's description in Book XI, Chapter 1 of the ''Institutione Oratoria'']] of Sulpicius as a ''juris antistes'' (roughly, a "bishop of law"). In this excerpt from the ''Institutione Oratoria'', Qunitilian describes how Cicero, Sulpicius's teacher, was able to advocate for [http://en.wikipedia.org/wiki/Lucius_Licinius_Murena Murena's] election as consul over Sulpicius while preserving Sulpicius's pride as much as possible. An interesting choice of excerpts by Wythe, since he is using it to illustrate how Justice Fortescue was pointing out an error by the "modern Sulpicius", Lord Edward Coke, as gently as possible.</ref> in an error about the common law's origins.<ref>John Fortescue-Aland, [[''Reports of Select Cases in All the Courts of Westminster-Hall'']] ([London] In the Savoy: Printed for H. Lintot, 1748) xi.</ref><br />
<br />
Wythe offered a pair of further examples to illustrate the odd position the Supreme Court had taken:<br />
*In the first example, a single borrower owes money to two joint lenders. One of the lenders dies, and the other one vanishes with the bond that proved the debt existed. Would a court of equity say that the borrower's debt is cleared?<br />
*In the second example, the borrowers Claiborne and Minge die at the same time with no way to prove who died first (e.g., in a shipwreck). Would a court in equity free Minge's estate from the debt?<br />
<br />
Wythe took particular issue with the idea that the important factor for the Supreme Court was whether Minge had used any of the money James Field loaned to Claiborne. He dissected the first sentence of the Supreme Court's decision, mainly to reiterate that he disagreed with the Supreme Court's idea that Minge's liability on the loan ended with Minge's death. Wythe compares Claiborne's and Minge's relation to that of the debtor and surety in the case of ''[[Pendleton v. Lomax]]''.<ref>''Pendleton v. Lomax'' Wythe 4 (Va. 1790). Wythe takes this opportunity to bemoan the poor sales of Wythe's Reports (''Field v. Harrison'' was originally published as a supplementary pamphlet); Wythe guessed that he had sold only 20 copies of the book. Wythe compared his situation to [[Plutarch's Lives|Plutarch's description]] of [http://en.wikipedia.org/wiki/Cato_the_Elder Cato the Elder's] latter years. Cato had frequently expressed contempt for Greek language and culture and actively fought what he perceived to be the "Hellenization" of Roman culture. When he turned around 80 years old, though, he began to try learning the language. Cato's contemporaries thought that Cato's late-in-life "rage" for trying to learn the language he had long despised was a punishment upon him. In much the same way, Wythe suggested (perhaps with a slightly droll tone) that his mania for printing all his decisions was a punishment for his frequent derision of Westmonasterian decisions. Wythe, ''Decisions of Cases'', 281, fn. e.</ref> Just as Pendleton the surety was able to recover from his co-surety Lomax, so should Minge have been able to recover from Claiborne. <br />
<br />
But Minge was not a surety for James Field; legally speaking, Minge was a debtor from Field's point of view - as much of a debtor as Claiborne. So why should Minge's estate be able to escape the debt by Minge's death when Claiborne's death would not have terminated his liability under the Supreme Court's logic? Wythe supposed that the Supreme Court was acting out of the desire for protecting an "innocent surety". Such charity, though, should be left to the person owed the debt, not to the court. By granting relief to Minge's estate, the Supreme Court could very well be taking food out of the mouths of Field's children. Whether a person agrees in a contract to perform a duty beneficial to another person or a duty detrimental to themselves is irrelevant as far as law and equity are concerned. Courts should not prioritize one person over another based on the type of act they performed. Minge signed on to an obligation, and Field's rights to recovery should not be diminished just because of the type of action Minge agreed to.<br />
<br />
The parties arguing before the Chancery Court cited caselaw precedent in favor of their positions, so Wythe seized the chance to repeat his views on the limited usefulness of cases as evidence of the law. Given a choice, Wythe preferred lawyers to refer to those cases while providing their own interpretation of what the cases meant, as opposed to straight quotations from the cases. He found it both "easier" and "more influential" when lawyers gave their own interpretation on the precedent's meaning.<ref>Wythe, ''Decisions of Cases'', 283-84.</ref> Overall, though, Wythe did not care much for the idea that something was true just because Aristotle said it was. Judges seem more concerned as to whether their decisions accord with each other as opposed to whether they jibe with common sense. Giving caselaw the aura of infallibility can become dangerous precedent: Wythe gave an example from [[Reports of Cases Argued and Adjudged in the Courts of King's Bench and Common Pleas|Lord Raymond's Reports]] of the House of Lords summoning King's Bench Chief Justice Holt and threatening to put him in the Tower of London because one of his judges issued a decision inconsistent with House of Lords caselaw.<ref>''R. v. Knollys'', (1694) 91 Eng. Rep. 904, 909; 1 [[Reports of Cases Argued and Adjudged in the Courts of King's Bench and Common Pleas|Ld. Raym.]] 10, 18 (6 Will. & Mar.). In the end, the Lords' "endeavours vanished in smoak."</ref> Although he wished it would happen, Wythe saw little chance of Americans breaking from their "superstitious veneration" for caselaw precedent.<ref>Wythe, ''Decisions of Cases'', 284, fn. f.</ref><br />
<br />
Harrison's attorney cited the chancery case of ''Ratcliffe v. Graves''<ref>''Ratcliffe v. Graves'', (1683) 23 Eng. Rep. 409; 1 [[Cases Argued and Adjudged in the High Court of Chancery|Vern.]] 196.</ref> to support his case. In ''Ratcliffe'', the Heathers were sureties for Elizabeth Ratcliffe, the executrix of her husband Walter's estate. The plaintiff was Walter's son, who was a minor when Walter died. Elizabeth was loaning out the money and earning interest from Walter's estate while the plaintiff was a minor, and the plaintiff sued for the interest. The plaintiff claimed that the Heathers fraudulently did not set aside enough resources to properly back the bond the law required for Elizabeth to administer the estate. The plaintiff asked the court to make the Heathers pay the amount of damages not covered by the bond, but the chancellor rejected the plaintiff's request, saying he would not require the Heathers to pay any more than the common law required. <br />
<br />
Wythe was unimpressed by this case's precedential value because the chancellor in ''Ratcliffe'' did not give any reason for his decision; what's more, the chancellor in ''Ratcliffe'' did not seem to put much thought in the decision, since he made the statement at the beginning of the hearing.<ref>There was more to the case; the plaintiff also sued Elizabeth for the interest she had earned on the money from Walter's estate.</ref> From Wythe's perspective, the case of ''Underwood v. Staney''<ref>''Underwood v. Staney'', (1666) 22 Eng. Rep. 703; 1 Chan. Cas. 77.</ref> was just as valid as ''Ratcliffe''. In ''Underwood'', the plaintiff was a lender who sued the dead borrower's estate and the borrower's surety for repayment. The executor of the borrower's estate said he had no money to repay, so the lender sued the surety. The chancellor in ''Underwood'' held that equity required the surety to repay the borrower; while the surety did not directly benefit from the loan, the lender had parted with his money, and the lender's loss was just as valid consideration as the surety's gain. The chancellor in ''Underwood'' offered no explanation for his decision, but neither did the chancellor in ''Ratcliffe'' - so why would one case be considered more worthy than the other? At least ''Underwood'' held to basic principles of justice.<br />
<br />
Wythe noted that several cases would allow a lender to get repaid on a loan if they lost the note that verified the debt's existence, but not if the borrower died before the surety. Wythe found this odd; if anything, he felt the reverse should apply, because a lender has no control over the borrower's death, but might be responsible for losing a piece of paper. One reason Wythe could think of for the distinction was that with the lost note, a court of equity was simply filling in the lost evidence on a pre-existing debt, while in the case of the dead borrower, the court of equity might be creating a new duty to repay that the common law did not require. This brought Wythe back to the question of whether a lender's right to repayment was destroyed, or a borrower's obligation simply nullfied, by the common law's lack of a remedy for the lender if the borrower died before the surety.<br />
<br />
A borrower's obligation to the lender can be discharged either by the borrower's act (i.e., repaying the loan under the agreed-upon terms) or by the lender's act (e.g., if the lender forgives the borrower's debt). A legal maxim states that "an act of the law shall never work a wrong".<ref>Bryan A. Garner, ed., "Actus legis nemini facit injuriam," in ''Black's Law Dictionary'' (St. Paul, MN: Thomson Reuters, 10th ed. 2014) 1898. Wythe does not give the source for this maxim, but it seems to be a well-established one.</ref> [[Works of Francis Bacon|Francis Bacon stated in his ''Maxims of the Law'']] that when points of law conflict with each other, courts should uphold the ideal which the law considers worthier, but that this rule should give way to other rules that are more humane or equitable.<ref>Francis Bacon, "Regula III. ''Verba fortius accipiuntur contra proferentem'' (A man's deeds and words shall be taken strongest against himself)" in ''The Works of Francis Bacon'' (London: Printed for A. Miller, against St. Clement's Church, in the Strand, 1740) 22-27.</ref> Bacon's ninth maxim states that if the law deprives someone of a remedy through no fault of their own, then the law should put that person in a better place than they were before, not a worse situation.<ref>Francis Bacon, "Regula IX. ''Quod remedio destituitur ipsa re valet si culpa absit''" in ''The Works of Francis Bacon'' (London: Printed for A. Miller, against St. Clement's Church, in the Strand, 1740) 27-28.</ref> Wythe could not imagine a legal mind such as Bacon discharging Minge's duty to pay, leaving Field with no remedy for the lost loan.<br />
<br />
Wythe saved a healthy dose of scorn for the part of the Supreme Court's decision that stated that no fraud or mistake seemed to occur when creating the bond for Claiborne's loan. Wythe said this line was so unnecessary that it almost seemed like satire. But it gave Wythe pause for thought: would it not have been fraud for Claiborne and Minge to have promised repayment to Field, but intending that Field would only be repaid while both parties were living or if Claiborne died before Minge? Even if Claiborne's and Minge's fraud was not intentional, Field should not be punished for signing a contract he did not mean to create - the Roman civil law according to [[Corpus Juris Civilis|Justinian's ''Digest'']] would agree.<ref>''Non videntur qui errant consentire'' ("Those who make mistakes are not considered to consent"). DIG. 50.17.116.2. (Ulpianus 11 ad ed.).</ref> A court of equity should therefore be able to grant relief to correct this mistake. If equity cannot grant relief only because the legal obligation was extinguished, then what is the purpose of equity?<br />
<br />
Wythe concluded his discussion by asking what would have happened if James Field were a foreign resident and the parties sealed the promise in that foreign country. Would the Supreme Court have ruled differently? If so, why the difference? If not, how can foreign citizens trust the American courts?<br />
<br />
==Works Cited or Referenced by Wythe==<br />
===Justinian's ''Digest''===<br />
Quotation in Wythe's opinion:<br />
<blockquote><br />
<tt><span style="color: #006600;">[B]y the roman civil law, ''non videntur, qui errant, consentire.'' Dig. lib. L tit. XVII. Reg. CXVI §2.</span></tt> Translation: ''He, who errs, seems not to consent.'' Wythe uses this maxim to demonstrate why a party who entered a contract because of the fraud of the other party ought not to be bound by that contract.<ref>Wythe, ''Decisions of Cases'', 289.</ref></blockquote><br />
<br />
For this quotation, Wythe most likely used his copy of the ''[[Corpus Juris Civilis]]'' which includes the ''Digest of Justinian''.<br />
<br />
===Plutarch's ''Parallel Lives (Cato the Elder)''===<br />
Quotation in Wythe's opinion:<br />
<blockquote><br />
<tt><span style="color: #006600;">...reporting his own adjudications too, which may be as unentertaining and unedifying as the senile garrulity of Cato in a language not his vernacular tongue. notwithstanding that work has been slighted, the author’s ''cacoethes blasphemandi'' in that way is so inveterate that it be pronounced ''insanabile.'' this ''opusculum'' may be slighted in the same manner; yet his ''cacoethes edendi'' will break forth, when such occasions as this present fit subjects for his lucubrations. </span></tt> Translation: ''cacoethes blaspehemandi''- “flaw of blaspheming”;<br />
''insanabile''- “incurable”; ''opusculum''- “trifle”; ''cacoethes edendi''- “flaw of eating”.<ref>Ibid., 281.</ref></blockquote><br />
<br />
===Quintilian's ''The Institutes of Oratory''===<br />
Quotation in Wythe's opinion:<br />
<blockquote><br />
<tt><span style="color: #006600;">Taylors elements of the civil law, p. 399. an error from a cause not altogether dissimilar, justice Fortescue, in the preface to his reports, hath detected in Coke himself, the English Sulpitius, the ''juris antisies'' of the common lawyers.</span></tt> Translation: Wythe wrote ''juris antisies'' but the text he was quoting from reads “juris antistes” meaning “master/authority/high priest of the law.” He uses the phrase to praise Coke as one of the most important authorities on the law.<ref>Ibid., 279.</ref></blockquote><br />
<br />
==References==<br />
<references/><br />
<br />
[[Category:Cases]]</div>Emolivierhttp://lawlibrary.wm.edu/wythepedia/index.php?title=Field_v._Harrison&diff=36718Field v. Harrison2015-03-19T15:23:36Z<p>Emolivier: </p>
<hr />
<div>{{DISPLAYTITLE:''Field v. Harrison''}}<br />
[[File:WytheFieldVHarrison1852.jpg|link=Media:WytheDecisions1852FieldVHarrison.pdf|thumb|right|300px|First page of the opinion [[Media:WytheDecisions1852FieldVHarrison.pdf|''Field v. Harrison'']], 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:WytheDecisions1852FieldVHarrison.pdf|''Field v. Harrison'']], Wythe 273 (1794),<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), 273.</ref> involved two people who had jointly agreed to repay a debt. One of the joint debtors died before the other. The decision discussed whether the dead debtor's representatives could still be held liable for the debt. Wythe offers another extensive discussion of British caselaw's irrelevance as precedent in the United States, as well as a summary of the reason for equity's existence.<br />
__NOTOC__<br />
==Background==<br />
James Field loaned £3000 to William Claiborne. David Minge agreed to sign a bond as a surety (a co-signer equally liable for repaying the loan) for Claiborne on the promise to repay Field £1500 plus interest. <br />
<br />
Minge died before Claiborne, and Claiborne declared bankruptcy. <br />
<br />
James Field died, and the executrix of his estate, Margaret Field, sued Minge's estate to recover the loan amount. Margaret Field's suit was rejected by the common-law court because Minge's and Claiborne's bond created ''joint liability''. Joint liability created a ''right of survivorship'', which meant that the entire liability fell upon the living borrower listed on the bond (Claiborne) after the other borrower (Minge) died. Margaret Field then filed a bill with the High Court of Chancery against Christiana Harrison (the executrix of Minge's estate) to recover the money.<br />
<br />
Harrison demurred (a pleading agreeing that everything Field said in her complaint was true, but did not state a valid claim). Harrison said that Minge's liability for the loan disappeared with his death, that Field's bill "contained no equity", and that Field might still have a valid action in a court of law against Claiborne. <br />
==The Court's Decision==<br />
The High Court of Chancery ordered Minge's estate to pay the £1500 plus interest to Field. The Chancery Court rejected Harrison's claim that Minge's estate was no longer liable due to Minge's death, and also rejected the idea that Field's bill had "no equity". Wythe deemed the fact that Field might still be able to sue Claiborne in a court of law irrelevant. Even if the common law ended Minge's liability on the bond with his death, a chancery court could give Field a remedy, because death does not discharge a co-debtor's duty under equity.<br />
<br />
Harrison appealed the Chancery Court's decision to the Virginia Supreme Court of Appeals.<ref>''Harrison v. Field'', 2 Va. (2 Wash.) 136 (1795).</ref> Margaret Field claimed that James Field did not learn until after Minge's death that the bond was for ''joint liability'' instead of ''joint and several liability'', as James Field thought it was (in which case, Minge's liability would have passed down to Minge's estate and heirs). In addition, James Field was not present when Minge and Claiborne executed the bond.<ref>This information was included in the Supreme Court's decision, so it is unclear whether Field made these arguments before Wythe.</ref> Harrison replied that Claiborne was in good financial condition when he took the loan from James Field, and that as far as Harrison knew, Claiborne did not use Minge's credit to get the loan. In addition, Harrison also asserted that neither fraud nor error was involved in making Minge and Claiborne jointly liable instead of jointly and severally liable.<br />
<br />
The Supreme Court reversed the Chancery Court. Minge did not borrow or use any of the money that Field loaned to Claiborne, and there did not appear to be any fraud or error made when making the bond for joint liability instead of joint and several. Therefore, equity should not extend Minge's liability any further than the common law would, and Minge's liability for the bond ended with his death.<br />
==Wythe's Discussion==<br />
Wythe believed that the Chancery Court's decision "will be thought. . .by most other men, to be consonant with purest principles of justice".<ref>Wythe, ''Decisions of Cases,'' 274.</ref> He took as self-evident the idea that a person who co-signs a loan as a guarantor is just as duty-bound to repay the lender as the person who borrowed the money, and that if the guarantor is unable to perform that duty, then the guarantor's heirs are equally bound to that duty if the guarantor's estate has enough funds. Wythe said that the common law dictates that the only thing that would eliminate a person's obligation under a contract is the performance of their duty under the contract or the consent of the person the duty was owed to. In this case, Wythe defined the "common law" as "the law common to all men. . .the law of nature and reason", which he distinguished from the law created by "the disciples of those who can be eloquent encomiasts of the most barbarous parts of what, by some of them, is alleged to have been the antient common law of England."<ref>Wythe ''Decisions of Cases,'' 274, fn. a.</ref><br />
<br />
Wythe iterated the rationale for courts of equity. Equity is there to fix defects that unavoidably appear in the exercise of the common law. Equity anticipates and provides remedies that the common law did not consider. Equity enhances insufficient legal remedies, and restrains excessive ones. Equity is also there to provide remedies that would be available to people through the common law if not for legal procedures and circumstances beyond the parties' control. Equity is a complement to the common law, not an obstacle.<br />
<br />
Wythe offered the example of a person, F, who loans money to another person, C. C seals and delivers a writing confirming his obligation to repay F the money, but F loses the writing. From the viewpoint of "[m]en, who delight in quaintness of phrase, and suppose themselves to discover it in pith of argument",<ref>Wythe does not name anyone specifically, but it seems likely this was a shot at [[Edmund Pendleton]].</ref> F has lost the right to repayment by losing the evidence of that obligation.<br />
<br />
Wythe criticized the common-law principle that if the cause of action to recover title in property had to be temporarily suspended due to procedural issues, then that cause of action was permanently extinguished, unrevivable even in equity. Wythe cited the cases of ''Fryer v. Gildridge''<ref>Fryer v. Gildrige, (1613?) 80 Eng. Rep. 160-61, (C.P.);[[Reports of that Learned Sir Henry Hobart Knight|Hobart]] 10.</ref> from [[Reports of that Learned Sir Henry Hobart Knight|Hobart's Reports]] and ''Wankford v. Wankford''<ref>Wankford v. Wankford, (1699) 91 Eng. Rep. 265 (K.B.); 1 [[Reports of Cases Adjudged in the Court of King's Bench (Salkeld)|Salk.]] 299. </ref> from [[Reports of Cases Adjudged in the Court of King's Bench (Salkeld)|Salkeld's Reports]] for this idea. In ''Fryer'', the lender died and made the wife of one of the borrowers executrix of the lender's estate, which the court said suspended the lender's right to go after the borrower's money. In ''Wankford'', the borrower himself became the executor of the lender's estate. In both cases, the courts held that the act of making the borrower or his wife executor of the lender's estate suspended the lender's right to file suit, and that once that right is suspended, the action is permanently extinct.<ref>The judge in ''Fryer'' though, seemed to find this an iffy basis for the ruling. The executrix of the lender's estate later also became the executrix of the estate of another of the borrowers, and that estate had sufficient funds to pay the lender; the judge in ''Fryer'' called this the "surer" reason for his verdict. 80 Eng. Rep. at 161; Hobart 10.</ref><br />
<br />
In ''Cage v. Acton''<ref>91 Eng. Rep. 1244, 1 [[Reports of Cases Argued and Adjudged in the Courts of King's Bench and Common Pleas|Ld. Raym.]] 515 (11 Will. III).</ref> (from [[Reports of Cases Argued and Adjudged in the Courts of King's Bench and Common Pleas|Lord Raymond's Reports]], [https://en.wikipedia.org/wiki/John_Holt_%28judge%29 English Chief Justice Holt] said that chancery courts should provide no relief in a case where the common law cancels a debt because the lender married the borrower.<ref>91 Eng. Rep. at 1249, 1 Ld. Raym. at 523. Interestingly, C.J. Holt was outvoted in this case; the other two judges held that the borrower and lender's marriage did not cancel the debt.</ref> Wythe remarked that enough English courts of equity had approved Holt's doctrine that "some" might consider it binding caselaw that would speak against Wythe's verdict in ''Fields v. Harrison''. Wythe also noted, however, that in a later stage of Cage and Acton's battle found in [[Cases Argued and Adjudged in the High Court of Chancery|Vernon's Reports]], the chancellor felt otherwise, and held that equity would grant relief in that situation.<ref>''Acton v. Peirce'', 23 Eng. Rep. 908, 2 [[Cases Argued and Adjudged in the High Court of Chancery|Vern.]] 480 (1704).</ref> In addition, Wythe said that one reason for Holt's doctrine was to keep chancery and common-law decisions uniform with the English ecclesiastical courts. At any rate, Wythe saw no need to hold to precedent if it flew in the face of "natural justice".<ref>Wythe 277, fn. b.</ref><br />
<br />
Wythe offered another illustration of what could result from following the law as the Virginia Supreme Court described it in this case - this time, F lends money to C and M. C and M sign a bond promising to repay F, and the courts interpret the wording of the bond to mean that C and M's liability to F is joint, rather than joint and several. If M dies before C does, F cannot sue both M's estate and C. On top of that, F cannot sue M's estate, because the joint obligation passed entirely to C on M's death. In a situation such as this, Wythe would have allowed a court of equity to require M's estate to repay F the money owed, giving F relief that the common law could not. Wythe seemed to have trouble with the need for a distinction between joint and joint and several liability, deeming it "originally perhaps a reverie of some dull drowsy dreaming judge, which his successors, too lazy to examine it, have suffered time to mature into an authority".<ref>Wythe 278, fn. c.</ref> Since M would have been liable for the full amount had C died, and vice-versa, then surely the joint liability was meant to be joint and several.<ref>Wythe did not seem to think much of judges inferring a right of survivorship when reading a contract. He also found little rhyme or reason behind courts' distinction between tenancy in common and joint tenancy. See ''[[Farley v. Shippen]]'', Wythe 254 (1794).</ref> <br />
<br />
In a footnote, Wythe fashions his own explanation for why the common law created a right of survivorship for joint liability.<ref>Wythe 278, fn. d.</ref> When one of multiple borrowers dies, the common law allows a lender to sue the surviving borrowers for the entire amount, supposedly for the borrower's benefit. Common law does not allow someone to join a "proper" party (i.e., a person being sued as themself) and a "representative" party (e.g., the executor of someone's estate or someone acting as a guardian for a child) in the same case. So, Field could not include Minge's estate and Claiborne in the same lawsuit. Therefore, the law allows a lender to sue the surviving borrower, and then allows the surviving borrower to sue the deceased borrower's estate for compensation. Wythe expressed hope that he would be as happy with his improvised explanation as Holt was with his explanation in as reported in [[Reports of Cases Argued and Determined in the High Court of Chancery, and of Some Special Cases Adjudged in the Court of King's Bench|Peere Williams's Reports]] for the distinction between joint tenancies and tenancies in common.<ref>''Fisher v. Wigg'', 24 Eng. Rep. 275, 278; 1 P. Will. 18, 21 (1700). Holt believed that courts preferred joint tenancies because they did not like seeing estates broken up into fractions, with the side effect of duplicating services.</ref> <br />
<br />
Something puzzled Wythe, though: if the common law wanted to be sure that lenders had a remedy, why did judges create the law so that a borrower's death got rid of their obligation under joint liability, even if the other borrower was bankrupt?<ref>Wythe appears to cite to ''Towers v. Moor'', 23 Eng. Rep. 673, 2 [[Cases Argued and Adjudged in the High Court of Chancery|Vern.]] 99 (1689), for this idea. While ''Towers'' does involve joint liability and a dead borrower, it does not seem to say whether the surviving borrower was bankrupt.</ref> Wythe said that lawyers' and judges' unfamiliarity with the common law they profess to interpret has been a longstanding problem. Wythe quotes an excerpt from John Taylor's ''[[Elements of the Civil Law]]'' in which a lawyer from historical times decries his contemporaries' obliviousness towards their profession's principles, taking whatever case they can find to pay the bills without regard for the ethical implications.<ref>John Taylor, ''Elements of the Civil Law'' 399 (London: Charles Bathurst, 3d ed. 1769).</ref> In the preface to his [[Reports of Select Cases in All the Courts of Westminster-Hall|case reports, Justice Fortescue-Aland]] catches even [http://en.wikipedia.org/wiki/Edward_Coke Edward Coke], the high priest of the common law and England's [http://en.wikipedia.org/wiki/Servius_Sulpicius_Rufus Sulpicius],<ref>Here, Wythe is referring to [http://en.wikipedia.org/wiki/Servius_Sulpicius_Rufus Servius Sulpicius Rufus], a highly-regarded Roman legal scholar. Specifically, Wythe cites [[M. Fabii Quinctiliani de Institutione Oratoria|Quintilian's description in Book XI, Chapter 1 of the ''Institutione Oratoria'']] of Sulpicius as a ''juris antistes'' (roughly, a "bishop of law"). In this excerpt from the ''Institutione Oratoria'', Qunitilian describes how Cicero, Sulpicius's teacher, was able to advocate for [http://en.wikipedia.org/wiki/Lucius_Licinius_Murena Murena's] election as consul over Sulpicius while preserving Sulpicius's pride as much as possible. An interesting choice of excerpts by Wythe, since he is using it to illustrate how Justice Fortescue was pointing out an error by the "modern Sulpicius", Lord Edward Coke, as gently as possible.</ref> in an error about the common law's origins.<ref>John Fortescue-Aland, ''Reports of Select Cases in All the Courts of Westminster-Hall'' xi ([London] In the Savoy: Printed for H. Lintot, 1748).</ref><br />
<br />
Wythe offered a pair of further examples to illustrate the odd position the Supreme Court had taken:<br />
*In the first example, a single borrower owes money to two joint lenders. One of the lenders dies, and the other one vanishes with the bond that proved the debt existed. Would a court of equity say that the borrower's debt is cleared?<br />
*In the second example, the borrowers Claiborne and Minge die at the same time with no way to prove who died first (e.g., in a shipwreck). Would a court in equity free Minge's estate from the debt?<br />
<br />
Wythe took particular issue with the idea that the important factor for the Supreme Court was whether Minge had used any of the money James Field loaned to Claiborne. He dissected the first sentence of the Supreme Court's decision, mainly to reiterate that he disagreed with the Supreme Court's idea that Minge's liability on the loan ended with Minge's death. Wythe compares Claiborne's and Minge's relation to that of the debtor and surety in the case of ''[[Pendleton v. Lomax]]''.<ref>Wythe 4 (1790). Wythe takes this opportunity to bemoan the poor sales of Wythe's Reports (''Field v. Harrison'' was originally published as a supplementary pamphlet); Wythe guessed that he had sold only 20 copies of the book. Wythe compared his situation to [[Plutarch's Lives|Plutarch's description]] of [http://en.wikipedia.org/wiki/Cato_the_Elder Cato the Elder's] latter years. Cato had frequently expressed contempt for Greek language and culture and actively fought what he perceived to be the "Hellenization" of Roman culture. When he turned around 80 years old, though, he began to try learning the language. Cato's contemporaries thought that Cato's late-in-life "rage" for trying to learn the language he had long despised was a punishment upon him. In much the same way, Wythe suggested (perhaps with a slightly droll tone) that his mania for printing all his decisions was a punishment for his frequent derision of Westmonasterian decisions. Wythe 281, fn. e.</ref> Just as Pendleton the surety was able to recover from his co-surety Lomax, so should Minge have been able to recover from Claiborne. <br />
<br />
But Minge was not a surety for James Field; legally speaking, Minge was a debtor from Field's point of view - as much of a debtor as Claiborne. So why should Minge's estate be able to escape the debt by Minge's death when Claiborne's death would not have terminated his liability under the Supreme Court's logic? Wythe supposed that the Supreme Court was acting out of the desire for protecting an "innocent surety". Such charity, though, should be left to the person owed the debt, not to the court. By granting relief to Minge's estate, the Supreme Court could very well be taking food out of the mouths of Field's children. Whether a person agrees in a contract to perform a duty beneficial to another person or a duty detrimental to themselves is irrelevant as far as law and equity are concerned. Courts should not prioritize one person over another based on the type of act they performed. Minge signed on to an obligation, and Field's rights to recovery should not be diminished just because of the type of action Minge agreed to.<br />
<br />
The parties arguing before the Chancery Court cited caselaw precedent in favor of their positions, so Wythe seized the chance to repeat his views on the limited usefulness of cases as evidence of the law. Given a choice, Wythe preferred lawyers to refer to those cases while providing their own interpretation of what the cases meant, as opposed to straight quotations from the cases. He found it both "easier" and "more influential" when lawyers gave their own interpretation on the precedent's meaning.<ref>Wythe 283-84.</ref> Overall, though, Wythe did not care much for the idea that something was true just because Aristotle said it was. Judges seem more concerned as to whether their decisions accord with each other as opposed to whether they jibe with common sense. Giving caselaw the aura of infallibility can become dangerous precedent: Wythe gave an example from [[Reports of Cases Argued and Adjudged in the Courts of King's Bench and Common Pleas|Lord Raymond's Reports]] of the House of Lords summoning King's Bench Chief Justice Holt and threatening to put him in the Tower of London because one of his judges issued a decision inconsistent with House of Lords caselaw.<ref>''R. v. Knollys'', 91 Eng. Rep. 904, 909; 1 [[Reports of Cases Argued and Adjudged in the Courts of King's Bench and Common Pleas|Ld. Raym.]] 10, 18 (6 Will. & Mar.). In the end, the Lords' "endeavours vanished in smoak."</ref> Although he wished it would happen, Wythe saw little chance of Americans breaking from their "superstitious veneration" for caselaw precedent.<ref>Wythe 284, fn. f.</ref><br />
<br />
Harrison's attorney cited the chancery case of ''Ratcliffe v. Graves''<ref>23 Eng. Rep. 409, 1 [[Cases Argued and Adjudged in the High Court of Chancery|Vern.]] 196 (1683).</ref> to support his case. In ''Ratcliffe'', the Heathers were sureties for Elizabeth Ratcliffe, the executrix of her husband Walter's estate. The plaintiff was Walter's son, who was a minor when Walter died. Elizabeth was loaning out the money and earning interest from Walter's estate while the plaintiff was a minor, and the plaintiff sued for the interest. The plaintiff claimed that the Heathers fraudulently did not set aside enough resources to properly back the bond the law required for Elizabeth to administer the estate. The plaintiff asked the court to make the Heathers pay the amount of damages not covered by the bond, but the chancellor rejected the plaintiff's request, saying he would not require the Heathers to pay any more than the common law required. <br />
<br />
Wythe was unimpressed by this case's precedential value because the chancellor in ''Ratcliffe'' did not give any reason for his decision; what's more, the chancellor in ''Ratcliffe'' did not seem to put much thought in the decision, since he made the statement at the beginning of the hearing.<ref>There was more to the case; the plaintiff also sued Elizabeth for the interest she had earned on the money from Walter's estate.</ref> From Wythe's perspective, the case of ''Underwood v. Staney''<ref>22 Eng. Rep. 703, 1 Chan. Cas. 77 (1666).</ref> was just as valid as ''Ratcliffe''. In ''Underwood'', the plaintiff was a lender who sued the dead borrower's estate and the borrower's surety for repayment. The executor of the borrower's estate said he had no money to repay, so the lender sued the surety. The chancellor in ''Underwood'' held that equity required the surety to repay the borrower; while the surety did not directly benefit from the loan, the lender had parted with his money, and the lender's loss was just as valid consideration as the surety's gain. The chancellor in ''Underwood'' offered no explanation for his decision, but neither did the chancellor in ''Ratcliffe'' - so why would one case be considered more worthy than the other? At least ''Underwood'' held to basic principles of justice.<br />
<br />
Wythe noted that several cases would allow a lender to get repaid on a loan if they lost the note that verified the debt's existence, but not if the borrower died before the surety. Wythe found this odd; if anything, he felt the reverse should apply, because a lender has no control over the borrower's death, but might be responsible for losing a piece of paper. One reason Wythe could think of for the distinction was that with the lost note, a court of equity was simply filling in the lost evidence on a pre-existing debt, while in the case of the dead borrower, the court of equity might be creating a new duty to repay that the common law did not require. This brought Wythe back to the question of whether a lender's right to repayment was destroyed, or a borrower's obligation simply nullfied, by the common law's lack of a remedy for the lender if the borrower died before the surety.<br />
<br />
A borrower's obligation to the lender can be discharged either by the borrower's act (i.e., repaying the loan under the agreed-upon terms) or by the lender's act (e.g., if the lender forgives the borrower's debt). A legal maxim states that "an act of the law shall never work a wrong".<ref>''"Actus legis nemini facit injuriam."'' Bryan A. Garner, ed., ''Black's Law Dictionary'' 1898 (St. Paul, MN: Thomson Reuters, 10th ed. 2014). Wythe does not give the source for this maxim, but it seems to be a well-established one.</ref> [[Works of Francis Bacon|Francis Bacon stated in his ''Maxims of the Law'']] that when points of law conflict with each other, courts should uphold the ideal which the law considers worthier, but that this rule should give way to other rules that are more humane or equitable.<ref>Francis Bacon, "Regula III. ''Verba fortius accipiuntur contra proferentem'' (A man's deeds and words shall be taken strongest against himself)", ''Maxims of the Law''.</ref> Bacon's ninth maxim states that if the law deprives someone of a remedy through no fault of their own, then the law should put that person in a better place than they were before, not a worse situation.<ref>Francis Bacon, "Regula IX. ''Quod remedio destituitur ipsa re valet si culpa absit''", ''Maxims of the Law''.</ref> Wythe could not imagine a legal mind such as Bacon discharging Minge's duty to pay, leaving Field with no remedy for the lost loan.<br />
<br />
Wythe saved a healthy dose of scorn for the part of the Supreme Court's decision that stated that no fraud or mistake seemed to occur when creating the bond for Claiborne's loan. Wythe said this line was so unnecessary that it almost seemed like satire. But it gave Wythe pause for thought: would it not have been fraud for Claiborne and Minge to have promised repayment to Field, but intending that Field would only be repaid while both parties were living or if Claiborne died before Minge? Even if Claiborne's and Minge's fraud was not intentional, Field should not be punished for signing a contract he did not mean to create - the Roman civil law according to [[Corpus Juris Civilis|Justinian's ''Digest'']] would agree.<ref>''Non videntur qui errant consentire'' ("Those who make mistakes are not considered to consent"). Just. Dig. 50.17.116.2.</ref> A court of equity should therefore be able to grant relief to correct this mistake. If equity cannot grant relief only because the legal obligation was extinguished, then what is the purpose of equity?<br />
<br />
Wythe concluded his discussion by asking what would have happened if James Field were a foreign resident and the parties sealed the promise in that foreign country. Would the Supreme Court have ruled differently? If so, why the difference? If not, how can foreign citizens trust the American courts?<br />
<br />
==Works Cited or Referenced by Wythe==<br />
===Justinian's ''Digest''===<br />
Quotation in Wythe's opinion:<br />
<blockquote><br />
<tt><span style="color: #006600;">[B]y the roman civil law, ''non videntur, qui errant, consentire.'' Dig. lib. L tit. XVII. Reg. CXVI §2.</span></tt> Translation: ''He, who errs, seems not to consent.'' Wythe uses this maxim to demonstrate why a party who entered a contract because of the fraud of the other party ought not to be bound by that contract.<ref>Wythe 289.</ref></blockquote><br />
<br />
For this quotation, Wythe most likely used his copy of the ''[[Corpus Juris Civilis]]'' which includes the ''Digest of Justinian''.<br />
<br />
===Plutarch's ''Parallel Lives (Cato the Elder)''===<br />
Quotation in Wythe's opinion:<br />
<blockquote><br />
<tt><span style="color: #006600;">...reporting his own adjudications too, which may be as unentertaining and unedifying as the senile garrulity of Cato in a language not his vernacular tongue. notwithstanding that work has been slighted, the author’s ''cacoethes blasphemandi'' in that way is so inveterate that it be pronounced ''insanabile.'' this ''opusculum'' may be slighted in the same manner; yet his ''cacoethes edendi'' will break forth, when such occasions as this present fit subjects for his lucubrations. </span></tt> Translation: ''cacoethes blaspehemandi''- “flaw of blaspheming”;<br />
''insanabile''- “incurable”; ''opusculum''- “trifle”; ''cacoethes edendi''- “flaw of eating”.<ref>Ibid 281.</ref></blockquote><br />
<br />
===Quintilian's ''The Institutes of Oratory''===<br />
Quotation in Wythe's opinion:<br />
<blockquote><br />
<tt><span style="color: #006600;">Taylors elements of the civil law, p. 399. an error from a cause not altogether dissimilar, justice Fortescue, in the preface to his reports, hath detected in Coke himself, the English Sulpitius, the ''juris antisies'' of the common lawyers.</span></tt> Translation: Wythe wrote ''juris antisies'' but the text he was quoting from reads “juris antistes” meaning “master/authority/high priest of the law.” He uses the phrase to praise Coke as one of the most important authorities on the law.<ref>Ibid 279.</ref></blockquote><br />
<br />
==References==<br />
<references/><br />
<br />
[[Category:Cases]]</div>Emolivierhttp://lawlibrary.wm.edu/wythepedia/index.php?title=Report_of_Kamper_v._Hawkins&diff=35116Report of Kamper v. Hawkins2015-03-05T15:56:16Z<p>Emolivier: </p>
<hr />
<div>{{DISPLAYTITLE:''Report of Kamper v. Hawkins''}}<br />
<big>Report of a Case Decided on Saturday the 16th of November 1793, in the General Court of Virginia wherein Peter Kamper was Plaintiff, Against Mary Hawkins, Defendant, on a Question Adjourned from the District Court of Dumfries, for Novelty and Difficulty, Touching the Constitutionality of an Act of Assembly ... </big><br />
===by William Tatham===<br />
__NOTOC__<br />
{{NoBookInfoBox<br />
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|commontitle=<br />
|vol=<br />
|author=William Tatham<br />
|editor=<br />
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|publoc=Philadelphia<br />
|publisher=W.W. Woodward<br />
|year=1794<br />
|edition=<br />
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|pages=<br />
|desc=<br />
}}<br />
<br />
<br /> Philadelphia: Printed for A. M'Kenzie, & Co. ... by W.W. Woodward .., 1794. <br /><br /><br /><br />
<br />
William Tatham (1752-1819) was an engineer who served under Colonel Thomas Nelson and was at Yorktown during the American Revolution. <ref> Nancy Verell, “[http://www.monticello.org/site/research-and-collections/william-tatham William Tatham],” ‘’Thomas Jefferson Encyclopedia’’ (2013), accessed February 19, 2015</ref> After the war, he became a lawyer in North Carolina, but went back to England in 1796 to only return for better prospects in 1805. <ref>Ibid.</ref> He had extensive contact with Thomas Jefferson during and after the war. <ref> See ‘’[http://memory.loc.gov/ammem/collections/jefferson_papers/ The Thomas Jefferson Papers]’’ (Library of Congress).</ref><br />
<br /><br /><br />
Tatham recorded the case of ‘’Kamper v. Hawkins,’’ 3 Va. (1 Va. Cas.) 20 (1793), which Wythe held in his collection. Peter Kamper filed an injuction in the District Court of Dumfries under Section XI of "An act reducing into one, the several acts concerning the establishment, jurisdiction, and powers of District Courts." (Passed December 12, 1792.) It read:<br />
<blockquote><br />
Each of the said district courts in term time, or any judge thereof in vacation, shall, and may have and exercise the same power of granting injunctions to stay proceedings on any judgment obtained in any of the said district courts, as is now had and exercised by the judge of the high court of chancery in similar cases, and the said district courts may proceed to the dissolution or final hearing of all suits commencing by injunction, under the same rules and regulations as are now prescribed by law for conducting similar suits in the high court of chancery." <ref>’’Kamper v. Hawkins,’’ 3 Va. (1 Va. Cas.) 20 (1793)</ref><br />
</blockquote><br />
The General Court of Virginia overruled Kamper's motion, because Section XI was deemed to be unconstitutional. The idea was reinforced that "if an act of the legislature is repugnant to the constitution, the courts have the power, and it is their duty to so declare it." <ref>Ibid.</ref><br />
<br />
==References==<br />
<references /><br />
<br />
==External Links==<br />
Read this book in [http://books.google.com/books?id=VZCbtgAACAAJ&dq=Tatham,+William.+Report+of+a+Case Google Books]<br />
<br />
[[Category:Titles in Wythe's Library]]<br />
[[Category:Virginia Reports]]</div>Emolivierhttp://lawlibrary.wm.edu/wythepedia/index.php?title=Report_of_Kamper_v._Hawkins&diff=35114Report of Kamper v. Hawkins2015-03-05T15:51:38Z<p>Emolivier: /* References */</p>
<hr />
<div>{{DISPLAYTITLE:''Report of Kamper v. Hawkins''}}<br />
<big>Report of a Case Decided on Saturday the 16th of November 1793, in the General Court of Virginia wherein Peter Kamper was Plaintiff, Against Mary Hawkins, Defendant, on a Question Adjourned from the District Court of Dumfries, for Novelty and Difficulty, Touching the Constitutionality of an Act of Assembly ... </big><br />
===by William Tatham===<br />
__NOTOC__<br />
{{NoBookInfoBox<br />
|shorttitle=Report of Kamper v. Hawkins<br />
|commontitle=<br />
|vol=<br />
|author=William Tatham<br />
|editor=<br />
|trans=<br />
|publoc=Philadelphia<br />
|publisher=W.W. Woodward<br />
|year=1794<br />
|edition=<br />
|lang=English<br />
|set=<br />
|pages=<br />
|desc=<br />
}}<br />
<br />
<br /> Philadelphia: Printed for A. M'Kenzie, & Co. ... by W.W. Woodward .., 1794. <br /><br />
<br />
William Tatham (1752-1819) was an engineer who served under Colonel Thomas Nelson and was at Yorktown during the American Revolution. <ref> Nancy Verell, “[http://www.monticello.org/site/research-and-collections/william-tatham William Tatham],” ‘’Thomas Jefferson Encyclopedia’’ (2013), accessed February 19, 2015</ref> After the war, he became a lawyer in North Carolina, but went back to England in 1796 to only return for better prospects in 1805. <ref>Ibid.</ref> He had extensive contact with Thomas Jefferson during and after the war. <ref> See ‘’[http://memory.loc.gov/ammem/collections/jefferson_papers/ The Thomas Jefferson Papers]’’ (Library of Congress).</ref><br />
<br /><br /><br />
Tatham recorded the case of ‘’Kamper v. Hawkins,’’ 3 Va. (1 Va. Cas.) 20 (1793), which Wythe held in his collection. Peter Kamper filed an injuction in the District Court of Dumfries under Section XI of "An act reducing into one, the several acts concerning the establishment, jurisdiction, and powers of District Courts." (Passed December 12, 1792.) It read:<br />
<blockquote><br />
Each of the said district courts in term time, or any judge thereof in vacation, shall, and may have and exercise the same power of granting injunctions to stay proceedings on any judgment obtained in any of the said district courts, as is now had and exercised by the judge of the high court of chancery in similar cases, and the said district courts may proceed to the dissolution or final hearing of all suits commencing by injunction, under the same rules and regulations as are now prescribed by law for conducting similar suits in the high court of chancery." <ref>’’Kamper v. Hawkins,’’ 3 Va. (1 Va. Cas.) 20 (1793)</ref><br />
</blockquote><br />
The General Court of Virginia overruled Kamper's motion, because Section XI was deemed to be unconstitutional. The idea was reinforced that "if an act of the legislature is repugnant to the constitution, the courts have the power, and it is their duty to so declare it." <ref>Ibid.</ref><br />
<br />
==References==<br />
<references /><br />
<br />
==External Links==<br />
Read this book in [http://books.google.com/books?id=VZCbtgAACAAJ&dq=Tatham,+William.+Report+of+a+Case Google Books]<br />
<br />
[[Category:Titles in Wythe's Library]]<br />
[[Category:Virginia Reports]]</div>Emolivier