Difference between revisions of "Case of Overtons Mill: Prolegomena"

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by George Wythe

The Case of Overton's Mill: Prolegomena
Title not held by The Wolf Law Library at the College of William & Mary.
Author	George Wythe
Editor
Translator
Published	n.p. (Richmond, VA?): n.p. (Thomas Nicholson?)
Date	n.d. (1803?)
Edition
Language	English
Volumes	volume set
Pages	22
Desc.	19 cm.

Evidence for Inclusion in Wythe's Library

Text of the opinion

Page 1

In the Richmond common-law district court, Elizabeth Overton and Richard Overton, plaintiffs, against David Ross, defendent.

THE plaintiffs demanded 6000 pounds, complaining and declaring that the defendent, who had, on the 25th day of       in the year 1784, by a sealed writing obligatorie, to the court shewn, the date whereof is the same day and year, acknowledged himself to be indebted to the plaintiffs the said 6000 pounds, yet refused to pay the money to them, wherefore they sued.

The writing obligatorie, in an assignment of the breach of its condition, is said to have been executed on the       day of      , in the year 1784.

It was, by the condition, to be void, if David Ross should perform the award of three persons, mutualy chosen to determine a controversie between the parties relative to a lease or agreement.

The agreement, signed and sealed by David Ross only, purported, that Richard Morris, on behalf of Richard Overton and Elizabeth Overton, leased to David Ross a parcel of land, with a grist-mill then erected thereon,

a

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a fisherie, and other advantages, to be holden and enjoied by him, free from all interruption and molestation whatsoever, for seven years from August, 1783; and the David Ross engaged to build certain aedifices, and make other improvements, pay taxes, restore the said mill, in tenentable repair, with the improvements, at expiration of the term, and during the continuance thereof, pay rents. Subjoined are these words: 'a more particular agreement, or lease in due form, shall be executed, at any time either of the parties shall require; this agreement being taken for the basis of it. David Ross.'

The arbitrators, after reciting their authoritie, i'e', the writing obligatorie, on which the action is supposed to have been brought, and which in the award, but no where else, is alleged to be dated the 22d day of May, 1784, say, "they met, and considered the lease or agreement aforesaid,' the substance whereof they repeat, adding, 'it appears by the admission of each partie, that in januarie, 1784, by an extraordinarie and unexpected movement of the ice, the mill-house was intirelie demolished, and the said Ross had it not in his power to prevent the same. In persuance of the submission aforesaid, we do award and determine that the said David Ross shall pay the rents reserved in the said lease or agreement, notwithstanding the accident aforesaid, and that the said David Ross shall complie with and perform the other covenants contained in the said lease.'

The

Page 3

The defendent pleaded that he had performed the condition of the writing obligatorie in the declaration mentioned, and that there was no such award as is mentioned by the plaintiffs in their breaches assigned.

The plaintiffs replied generaly. Issues were joined; and the jurie found a verdict for the plaintiffs, assessing 3500 pounds damages, for which, with costs, judgement was rendered.

The defendent appealed.

Opinion of the court of appeals in affirmance of the district courts judgement, with quaries and remarks. Paragraphs of the opinion are in italic characters.

In the court of appeals,

Between David Ross, appellant, and Elizabeth Overton and Richard Overton, appellees,

In this cause, two objections have been made to the judgement of the district court: first, that there is a variance between the award and the bond of submission stated in the declaration, the former refering to a bond dated the 22d of May, 1784, and the declaration stating the bond in suit to be dated the 25th of       1784. In supporting this objection the counsil principaly relied on the case of Turner v' Moffet in this court, reported in 2 Wash' 71. But that case does not apply; since the variance was apparent on the record, against which no averment is admissible: and

Was

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Was not the variance in the principal case, if a variance be there, apparent on the record? The obligation and award are both exhibited in court, and entered in the book registering allegations of the parties litigant and acts of the court, that is, were recorded; and is not the variance, between the bond and award which is shewn by comparison of one with the other of them, as apparent on the record here as the variance between the submission and award in the case cited?

It was truly observed by the attorney general, that that case was distinguishable from the present, which, being a bond for the submission, was a matter en pais, and the supposed variance might be corrected by averment. The declaration states, that the defendent, on the 25th day of       1784, by obligation, the date whereof is the same day and year, bound himself to the plaintiffs. In the breaches assigned, annexed to the declaration, after reciting the lease to the defendent, and its essential covenants, on his part, that differences had arisen, which they had mutually agreed to refer to arbitration, the plaintiffs aver, that they entered into bond, similar to that entered into by the defendent, to abide by the award, and that the defendent, on the same day, to with, the       day of       1784, executed the bond in the declaration mentioned. It is obvious, from the award, that the arbitrators had before them not Rosses bond but, that entered into by the plaintiffs, which, they say, is dated the 22d of May, 1784.

If

Page 5

If the variance were only 'supposed,' were an hypothesis, that is, if no variance were, an averment to 'correct' it was superfluous, the date of the bond was correct, without averment. If between the 25th day of       1784, and the 22d day of May, 1784, a variance be, what will authorize averment, that those days were the same? An evasion of this question may be, but a categoric answer to it is not, expected: evasion, as hereafter appeareth, thus: 'the bond hath no date;' and 'we consider the date of the bond,' 25th of       in the year 1784, 'and the blank date of averment,'      day of       in the year 1784, 'to be no date.'

Without going over the several cases cited, the rate laid down in I lord Raym' 335 seems to have run thro' them all, that is, that if a bond hath either none or an impossible dated, the plaintiff may aver an day which he can prove the bond to have been delivered.

No man ought to have controverted the rectitude of this rule, if lord Raymond had not laid it down. But every man is not convinced that the rule is proved to APPLY to this case by such argumentation as

The present case is that of no date to the bond.

Did Aristotle, Ramus, Milton, Duncand, &c. in their dialectic institutions, teach their disciples that in a syllogism the minor proposition, as is done here by these words, 'the present case is that of no date to the bond,' may be taken for granted?

For

Page 6

For the counsils curious criticism, refering the 25 day of something to that day of the year was calculated only to occasion the mirth it produced. We consider that, as well as the blank date averment, to be no date, and of course, there is no variance between that and the true date mentioned in the award.

Passing over some 'curious' phrases occuring in the paragraph immediatelie preceding, and the conclusion, as 'curious' as any of them, namelie, 'of course there is no variance between that,' the 25 day of       in the year 1784, 'and the blank date averment,' the       day of       1784, 'there is no variance between these "and the true date mentioned in the award,' that is, there is no variance between the date of a bond 'of no date,' or a bond of a date which 'we consider to be no date, and the date of a bond which hath a true date; passing over this phraseologie perplexed, inexplicable, inconsistent, we ask,

Can the bond, which Richard Overton and Elizabeth Overton recite in their declaration, and whereof the date is there alleged to be the same day and year, i'e,' the 25 day of       in the year 1784, be trulie said to bear no date? Is not a year, distinguished by the number of isochronous revolutions computed from a known epoch, a date no less trulie, tho' less preciselie, than a month, or a particular day of any month specially named, in that year? An olympiad was a quaternion or period of four years used antiently by the greeks for sup-

putations

Page 7

putations of time: would Areopagus have 'considered a bond,' the date whereof was in the first, second, third or fourth, year of some one olympiad, to be a bond 'of no date,' because the name of hecatombaeon, or of scirrophorion, or of some one of the ten intervening months, or the day of the month was omited? The roman aera was the building of the citie; would the praetor have 'considered a bond,' the date whereof was in a certain year of the citie build, to be a bond 'of not date?' Europeans and british americans observe, for the same purpose, Jesus Christs nativitie; if lord Raymond in Westminsterhall had said 'he considered' a bond the date whereof is the 25 day of       in the year 1784, to be 'of no date,' it probalie would have 'occasioned' there no less mirth, than a counsils 'criticism' produced in the capitol, when some reasons for affirming the district courts judgement were attempted to be explained; and when that affirmance was proclaimed, might not one of the auditorie have asked risum taneatis amici?*

In truth no date could have been avered, but the 25 day of some month between december, 1783, and june of the succeeding year, for on the 15th day of that month the arbitrators power expired.

The

---

---

* Perhaps the foregoing concionation, by this time, has disposed the auditors to oscitation rather than cachinnation; they might be too drowsie to laugh.

Page 8

The year was certain, 1784. The day of some month was certain, the 25th. And although the plaintiffs could have supplied the blank left for the month with May, they could not aver the 25th to have been the 22d day.

Again, if in this case Richard Overton and Elizabeth Overton could have avered the bond to have been dated any day on which they could have proved the bond to have been delivered, we ask, where in the declaration, or in the assignment of breaches, doth an averment, that the bond was dated the 22d day of May, 1784, appear? is an allegation to that purpose in the award, which is an act of the arbitrators, an averment of the plaintiffs Richard Overton and Elizabeth Overton!

In every other thing, in parties, in controversie, and arbitrators, they agree. And on this point there is no error in the judgement of the district court.

To this conclusion they who can admit the truth of its premisses, will subscribe.

On the second point, it was argued by mr. Wickham, that under the covenant for quiet enjoiment the Overtons were the insurers of the propertie against all accidents. But surelie that covenant, which does not* differ essentialie from others of the like kind, only obliges the lessor to defend the enjoiment of the lessor to defend enjoiment of the lessee against legal clames, and not against a separa-

tion

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---

* DIFFER ESSENTIALIE from others of the LIKE KIND! are differences between individuals of like kinds, like species, called ESSENTIAL? See Lockes essay on human understanding, book III, chap. VI.

Page 9

tion of continuitie from robbers, thieves, trespassers, or the ice.

Mr. Wickhams argument; if it be vicious, seems an ignoratio clenchi, mistake of the question. Let the question, whether Richard Overton and Elizabeth Overton, or their friend Richard Morris, under the covenant for quiet enjoiment, were insurers of the propertie against all accidents, or were obliged to defend the enjoiment, against only legal clames? let that question not be proper: this question, whether, without a special covenant, they remained insurers of their own propertie, that is; were obliged, when it was demised to a tenant paying rent for enjoiment of it, to sustain the loss of that propertie irreparable, so that it could be enjoied no longer, prostrated and crushed by islands of ice, piled one upon another, resembling a mountain, and exhibiting a spectacle no less tremendous than when Ephialtes and Otus,

Ὄσσαν ἐπ᾽ Οὐλύμπῳ μέμασαν θέμεν, αὐτὰρ ἐπ᾽ Ὄσσῃ
Πήλιον εἰνοσίφυλλον^[1]

To heave upon Olympus Ossa strove,
On Ossa, Pelion's* vacillating grove?

or rather, whether David Rosses obligation to pay rent for a mill THEN ERECTED, THEN BEING, continued after the SAID mill was DISJECTED, CEASED TO BE? this is a proper question.

This

---

---

* Vacilians arbor Lucret'lib'v, v' 1097.

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This second objection is, that where it is apparent in the award that the arbitrators decided upon principles, in which they were mistaken, either in law or fact, the court will set aside the award, and they were so, in the present case, since it being stated, that the millhouse was intirelie demolished by an extraordinarie and unexpected movement of the ice, which Ross had it not in his power to prevent, they mistook the law, when they awarded Ross to pay the rent and perform his other covenants in the lease, notwithstanding the accident. For the sake of precedent, the court, first, considered how far they ought to interfere with awards, upon this ground, and are of opinion, that they ought not to consider themselves as an appellate court from the judgement of the arbitrators, and reverse it, merelie because we differ from them on a doubtful question;

That courts of civil institution ordinarilie have not appellate jurisdiction over sentences of arbitrators, unless those compromissorie judges mistake a fact, or the law, would not have been disputed if no precedents, of which manie however, earlier than this, are extant, had approved the doctrine.

But ought to place ourselves in the place of a court applied to, to grant a new trial, because the verdict is contrarie to evidence, which ought to be granted only in case of a plane deviation, and not in a doubtful one, merelie because the court, if on the jurie, would have given a different verdict; since that would be to

assume

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assume the province of the jurie, whom the law hath appointed the triers.

What is meant by 'case of a plane deviation?' a deviation, a departure, from what? from the truth of facts planelie proven, or from the rule planelie praescribed by law? are new trials never granted in even 'doubtful cases?' when a court and a jurie disagree, may we not call that a doubtful case? are not new trials some times granted for the very reason that the cases are 'doubtful,' that is, difficult? yea, have not new trials been granted, and even decrees pronounced, in direct opposition to verdicts certified by the courts, before which they were found, to have been 'against the weight of evidence?' with this preceent have the precedents in the cases of Southall against Mackeand and Woods against Macrae, cum multis aliis, perfect symphonie?

The judge of an equitie court, who by this precedent, is refered to the practice of common law courts, in awarding new trials, to learn in what cases he will be justified in abrogating awards, if he shall, for that purpose, consult those oracles, will probablie be delaied, distracted, misled, disappointed, as in Terentii Adelphi, act' 4, scen' 2, old Demea was by the directions of his servant Syrus, and, in like manner, be derided for this simple credulitie.

This rational distinction, between plane and doubtful cases, is observed in the books, which

justifie

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justifie the court in setting aside awards for mistaken principles.

Is this period reducible into any one simple proposition from which any conclusion can be drawn?

That this was, at least a doubtful question is evinced, not only by the number of counsil emploied to discuss it,

Did not this 'curious criticism produce the 'mirth it was well calculated to occasion?'

But from the english [sic] decisions on the subject;

Will not every reader of the line next above and its context lament, that english decisions, if they were allowed, and shall be yet allowed, to sanctifie such a sentence as was supposed to have been authorized by them, in this case, had not been ingurgitated in the Lethe, no less irrecoverable than Overtons mill was in the James?

And on this ground* we think the district court did not err on this second part;

Were the counsil emploied to discuss the question equalie numerous on both sides? If they had been fewer and equal in number, who knows that the question, whether, in case of such a catastrophe, the tenent was insurer of his landlords propertie? was, not doubtful but on the contrarie, clear in favour of the former? The tenent may have been unluckie that he did not, on his side, trie the experiment: he might perhaps have been more for-

tunate,

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---

* Doubtfulness of the question evinced partlie by the number of counsil emploied to discuss it.

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tunate, if he had not trusted to the proverb, 'in the multitude of counsillors there is safetie?'

At the same time, observing, that, stating it as a doubtful case, cannot be complained of by the appellant, since,

The appellant doth complain, addressing a prayer for redress of his grievance to another tribunal, before which one subject of diceptation is this question: when the court of common law hath burthened a tenent with the loss of his landlords rented propertie, which the tenent had not insured, which OMNIPOTENCE destroied, and which human providence, vigilance, and energie could not have preserved, whether a court of equitie be not bound to exonerate the tenent?

On the whole, it is our present opinion that the arbitrators did not mistake the law.

The question or case, as it is some times called, is in four places SUPPOSED to be doubtful, in a fifth place is EVINCED, i'e,' proved, to be doubtful, in this sixth place, as appeareth by the words, 'it is our opinion, that the arbitrators did not mistake the law,' is EVINCED, proved, NOT to be doubtful. The vicissitudes of ambiguitie and certantie in the question or case seem to have been as quick, and as easilie produced, as those of the visibilitie and evanescence of Gyges the Lydian, who as Plato, de republ,' lib II, p' 369, related, could effect these miracles, could appear and disappear when he pleased, by

means

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means of a ring, one, by turning the beazle of it towards himself, and the other, by an opposite exposure.

If the law be so, that, after a rented subject had been, by a tempest, reduced to atoms, if not annihilated, the tenent must pay the rent, notwithstanding, will the professors of law class it among liberal sciences, or this part of it at least with the reliques of dynastic, lordlie, feodal barbarism?

But perhaps the question may yet be doubtful. It seems possible from the words OUR PRESENT OPINION: if the question be doubtful, and to each side of it we suppose the same number of judges to incline, the voice of wisdom, Minerva herself, is sententiis paribus reus absolvitur, the doom of equal suffrages is acquital,

The laws absolve the * matricider
For equal votes the court divide.

When competent judges of law declare a legal question to be doubtful, doth not the law seem at variance with itself? and then what umpire can be, with so much proprietie called to decide the question as aequitie? is not this, not philanthropic only but, the verie praecept of law? That is a point, saith Francis Bacon 'in his maxims, worthie to

'be

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* Orestes.

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be observed generalie in the rules of law, that when they encounter and cross one another, in any case, it be understood which the law holdeth worthier and to be prefered, and it is in this particular, very notable to consider, that this rule, verba fortius accipiuntur cont a proferentem, being a rule of some strictness and rigor, doth not as it were its office but in absnece of other rules of more equitie and humanitie.'

If then, in a doubtful case or question the law itself direct equitie to prevale over rigor, did not the arbitrators, whose sentence was the reverse, * MISTAKE THE LAW.

David Ross, after the Richmond common law district courts judgement against him was affirmed, presented a bill in equitie to the Richmond chancerie diestrict court praying an injunction, which was awarded; whether rightly or not is the subject of the present tractate.

In the Richmond district court of chancerie, Between David Ross, plaintiff, and Richard Morris, Elizabeth Overton, Richard Overton and Samuel Overton, defendents,

This cause, heard, by consent of parties, the 25th day of may, in the third year of the nineteenth centurie of the christian aera, on the bill, answers, exhibits, and examinations of witnesses, was discussed by the court, after attending to councils arguments, in the terms following:

A

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A rented farm is ingulphed in the chasm of an earth-quake, or is overwhelmed by the lava, boiling over the brim, and running down the sides, of a burning mountains crater, during an eruption,

______Quoties Cyclopum effervere in agros Vidimus undantem ruptis fornacibus Ætnam Flammarum que globos liquefactaque volvere saxa;

A rented house is consumed by fulgurant or hostile fire, or is submerged and depressed in a deluge, or is swept off its site by a torrent, a * typhon, a prester, or a hurricane, or subverted or dilapidated by a landslip, a snowslip, or as in this instance, by an ice-slip;

Eversion of some houses, adjacent to another already burning is necessarie to prevent wide devastation, otherwise, inevitable, the fire, vulcano superante, baffling all attempts to extinguish it or interrupt its progress; the flame is now, furentibus Austris, in a high wind, communicated, to the contiguous aedifices,

______________jam proximus ardet Ucalegon:

the houses nearest are prostrated and destroied accordinglie; one of these victims, thus devoted for salvation of those in danger of being involved in the combustion, is a leased tenement, for which a rent is paible;

If any such a case as hath been described, and one of them the principal case appeareth

to

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* Plinii, tom' I. lib' II, cap. XLVIII. Lucretii lib.' VI. V. 424.

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to be, arbitrators condemning the tenent to pay rent with which he was supposed to have charged himself by covenant in general terms, although, without his fault, he was deprived of the quid pro quo, the thing for use of which he should be charged, decide unrighteously, contrary to principles of equitie never doubted.

Human providence, so hebete and limited are our faculties! is inadequate to prevention of numberless contingent evils, cannot guard against them. Happy therefore was institution of a curia prætoria, court of equity, by the benignitie whereof, in opposition to that summum jus, which in the curia censoria the common law court often times is injuria summa, parties in contracts, as well as in other examples, are freed from detrimentose effects, avoidance of which, if they had been foreboded, would have been stipulated.

If this controversie had been laid, in the first instance, before a court of equitie, the judge herhaps might have propounded these questions: first, was such a disaster expected rationaly to happen? second, would not the parties, if they had thought such an event, and believed it probable, have consented, that, until the mill should be rebuilt, or the matter adjusted some other way, rent should not be paid? and have accordinglie stipulated?

No man who doth fancie that a prodigie will terrifie the citizens residing near James river everie seven years, will answer the form-

er

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er question affirmativelie; nor will any man, who doth not suppose the parties to have been one a knave and the other a fool, give a negative answer to the latter question.

The court of equitie, then, if before it the case had been brought originalie, would undoubtedlie, yes undoubtedlie, have relieved David Ross from his obligation, if indeed he, by his agreement, legalie were obliged, to pay rent during vacation of the subject, out of which the law itself supposeth that rent, reditus, to grow, to return as it were, and which is the fund charged with paiment of the rent; would have placed the parties in the situation where the precepts of natural justice incontestablie direct them to be placed, and where the parties (probablie! yea certainlie, because otherwise no man will believe the tenement would have assumed in everie event the burthen,) would have consented to be placed, if they had supposed that a flood driving before it everie thing in the direction of its current would happen.

A decree, congruous with these sentiments is pure equitie, would leave those, who had the dominion of a mill, and him, who had a temporarie right to what emolument could be produced from it, would leave a landlord and landlady sustaining the loss of a machine their propertie, destroied by misfortune unforeseen and ineluctable, and would leave an ddeclare a blameless usufructuarie discharged from paiment of rent, when he could no longer enjoy

that

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that, for which the rent was an ______ that for which the rent was a retribution.

A like decree would be justifiable, if a mesuage, invaded by pestilence, should become deleterious.

Again, the contract between the parties was imperfect, was an epitome, compendium, designed to be drawn more particularlie, more explicitelie.

If, before the fatal night, one of them, instituting a prosecution against the other, had demanded performance of this article which is contained in the subjoined clause, and Richard Overton and Elizabeth Overton had insisted, that David Ross in all events should bind himself to deliver a mill, at expiration of the term, and pay rent for it, in the mean time, and David Ross had relied upon the exemption now clamed by him, alleging that at least he was not bound either to rebuild the mill, or, before the lessor should have built it, to pay rent for it, after intire demolition of it by lightning, a * turbo, or other tempest, or an inundation, could any judge, who should have decided this difference in favour of Richard Overton and Elizabeth Overton, have correct notions of justice, equitie, law? By this interrogatorie the querist intendeth a vehement negation.

If a court of equitie, to which one partie had in the first instance applied, would have

that

* Plinii, tom' I, lib' II, cap' XLVIII. Taciti annal' lib' XVI, c. 13.

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declared David Ross not chargeable with rent, even if for paiment thereof his contract, understood in a sense most rigorous, had imported a legal obligation, we are taught, by supreme judical authoritie (in the cases of Beverley against Reynolds, and of Dawson against Winslow that awards contravening principles of equitie, no less than principles of law, may be rescinded.

The arbitral sentence was contrarie to law too.

The contract between Richard Morris, on behalf of the owners of the mill, and David Ross ws what is called synallagmatic, that is reciprocal. Labeo definit contractum autem ultro citroque obligationem quod graeci _______ vocant: veluti emptinonem, venditionem, locationem, conductionem, societatem, Digest,' lib' L' tit' xvi. l' xix. that is, the contract was on both sides obligatorie. Richard Overton and Elizabeth Overton owners of a mill THEN, theretofore, erected were obliged to permit David Ross to work it, for his own benefit, during seven years, and he was obligated, to pay rent, and, at expiration of that term, to deliver THE SAID MILL IN TENENTABLE REPAIR.

These obligations and the rights correspondent were altern, were causes and effects each of other.

David Ross, so long as he could work the mill ERECTED THEN, mill which had been ERECTED BEFORE, was for that

cause,

Page 21

cause, obliged to pay, and Richard Overton and Elizabeth Overton had a right to demand the effect of that cause, rent; and Richard Overton and Elizabeth Overton so long as David Ross paid rent, were obliged for the cause, to permit him to work, and he had a right to work, the mill, and they had a right to the rent, the effects of those causes. The rights and obligations of the parities were synchronous, were equal in duration: whilst the mill remained, and could be worked, the lessors had a right to rent; but when the mill had vanished, when a divulsion, a dislocation, a dissipation, of its parts were such that a reunion of those parts, if they could have been found, was impracticable; when the mill existed not otherwise than in fragments, partlie floating on the surface and partlie sunk to the bottom of the James, Chesapeake, or Atlantic, the right to rent ceased.

David Ross by his agreement, obliged himself to pay rents for a mill THEN erected, a mill which might require repairs, during the term, not for a mill TO BE erected; obliged himself to deliver the SAID mill, that is the mill THEN erected, in tenentable REPAIR, not to deliver a NEW mill which might not require repairs during the term, in place of the OLD, if it should be totalie dilacerated.

And that an arbitral sentence, of which the authros appear to have misconceived the law,

may

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may by this court be abrogated, is supposed to have been admitted universalie.

Finalie, the sentence, pronounced partibus absentibus when the parties were absent, imo partibus inauditis when the parties were not heard, was for that reason a nullitie, surelie no proof is required of that.

The court therefore doth adjudge and decree, that the injunction, &c.' be perpetual, as it is hereby prounounced to be perpetual; and that the defendents Richard Overton, Elizabeth Overton and Samuel Overton reimburse to the plaintiff the costs expended by him in prosecuting this suit.

References

1. ↑ Homer, Odyssey, 11.315-316.

See also

• Between Fowler and Saunders
• Between Wilkins and Taylor
• Between Yates and Salle
• Case upon the Statute for Distribution (pamphlet)
• Love against Donelson
• Overton v. Ross
• Report of the Case between Aylett and Aylett
• Report of the Case between Field and Harrison

External links

Library of Congress catalog record.