
    Young v. Price and Others.
    Thursday, December 19th, 1811.
    Mill Cases — Damages—When Payment Presumed.— Under circumstances, the payment of the damages assessed in a mill case ought to ho presumed; especially, if a great length of time has elapsed, during which the owner of the land, to whom such damages were assessed, acquiesced in the building of the mill, without claim or obj ection on his part.
    Upon an appeal from a decree of the superior court of chancery for the Richmond district, by which a bill, exhibited by William Young, against William Price, administrator of Charles Price, Robert Price, and Samuel Williamson, was dismissed with costs.
    The complainant having purchased of Charles Price, agent for Robert, a mill-seat in the county of Henrico, for the sum of 1301. of which 401. remained unpaid, was informed by Samuel Williamson, that he was owner of the land which, in the year 1776, had been condemned, upon a writ of ad quod damnum, for an abutment of the mill dam, ana other uses connected with the mill; and that the damages assessed in his favour, including those allowed his brother, Thomas Williamson, (who owned a part of the said land, of which he the said S. Williamson had since become the purchaser,) had never been paid. He therefore demanded the same, (amounting, with nineteen years’ interest, to 541. 12s.) and threatened to institute an action of ejectment for the land, if payment were refused. Upon this, the complainant gave the said Robert Price a written notice, that, unless he would pay the money so demanded by Williamson, the complainant would be obliged to pay it, and to claim a discount for it; whereupon, Robert Price having refused, or neglected, to make the payment, or to settle the business in anj' other way, the complainant paid to Williamson the 541. 12s. and took a special receipt, stating the circumstances.
    A suit at law was afterwards brought by William *Price, administrator of Charles Price, upon the complainant’s note for 401.; and judgment obtained; to enjoin which, and to recover the difference between that sum and the 541. 12s. were the chief objects of the bill.
    The ground relied upon, for relief in equity against the judgment was, that the complainant was unable to set off, at common law, against his note, the sum he had paid as aforesaid; to reimbursement of which he was justly entitled, either from the estate of Charles Price, or from Robert Price, for whom the said Charles was agent; the mill-seat having been sold to the complainant without notice of the encumbrance, and he having been compelled to pay this money to avoid an ejectment, which must have been successful against him, since he had nothing to show to maintain a title; the records of Henrico court being destroyed by the British troops in the late war.
    The defendants were severally called upon to answer and say, “whether the said Robert, or Charles Price, ever paid to the said Williamson the damages assessed by the jury on Robert Price’s petitioning Henrico court, for an acre of S. Williamson’s land? The defendant Williamson was particularly required to say whether he did not compel the complainant to pay the 541. 12s. as aforesaid?” A decree was also prayed against him; that, “if he had received more than he ought, he should be directed to refund the money with interest. ’ ’
    William Price, in his answer, averred that he always understood, and verily believed, that Robert Price had paid (without taking a receipt) the whole of the damages assessed to Thomas Williamson; (saying nothing of damages allowed to Samuel Williamson;) that Charles Price was applied to by the complainant to purchase the mill-seat; that the complainant was well acquainted with the circumstance that a part of the land had been condemned by a jury, and insisted that the difficulties relative thereto should be removed before he would make the ^purchase; “whereupon the said Charles Price applied to the said Thomas Williamson, in whose favour the damages had been assessed as aforesaid, paid him the amount thereof, and took a receipt for the same; as the respondent thinks he shall be able to prove:” but of this no proof was adduced. The respondent contended that the payment by the complainant to Samuel Williamson was in his own wrong, and ought not to operate to the prejudice of Robert Price, or of the estate of Charles Price.
    The answer of Robert Price said nothing about damages assessed to Thomas Williamson, but alleged that “when this respondent obtained an order of court for building said mill, the said Samuel Williamson promised to remit to him whatever damages the jury might assess, for the injury by him sustained by the erection of the said mill: but this defendant, not satisfied with his said promise, tendered him the whole amount of the said damages, which this defendant does not believe exceeded three pounds; but the said Samuel Williamson being, or pretending to be, mindful of his said promise, refused the money when tendered by this defendant. And, further, this defendant conceives that, as the said Charles Price was only authorized to sell the said mill, as she stood, without any clause of warranty to bind this defendant, and as the complainant may have paid the said sum of 541. 12s. improperly and in his own wrong, this defendant should not be thereby aggrieved.”
    
      Samuel Williamson having departed this life, without answering the bill, a bill of revivor was filed against Dabney Williamson, his executor, who appeared and pleaded to the court’s jurisdiction, on the ground that if the plaintiff had any right against his testator on the subject matter of the said bill, he had his remedy in the most ample manner at common law. He, also, answering, said, “that his testator was justly entitled to the money received by him from the complainant, for the damages in *the bill mentioned, which had not been paid or discharged to his testator, in any shape, before the complainant paid them, as far. as this defendant knows, has heard, or believes; that, on the contrary, his testator, until payment aforesaid, always asserted his right thereto; and the payment of those damages was in consideration of his testator’s relinquishing his right (which was unquestionable) to the ground which the pond of the mill then covered.”
    No depositions were taken on either side. The deed from Robert Price, to the complainant, for the mill-seat in question, (which deed was among the exhibits,) contained a clause of general warranty.
    The late chancellor, Wythe, on the 18th of May, 1801, overruled the plea to the jurisdiction, and directed “a jury to be empanelled and charged, before the county court of Henrico, to inquire what damages the said court, upon hearing the petition of the defendant Robert Price, for leave to build the mill in the bill mentioned, did adjudge that the said defendant should pay to owners of lands which would be overflowed? and who were those owners? (which inquiry, by loss of the record of proceeding upon the said petition, (as is suggested,) hath become necessary;) and whether that defendant paid those damages? and that the verdict of the jury be certified,” &c.
    No step appears to have been taken to carry this order into effect. And on the 8th of September, 1808, the present chancellor set it aside, and dismissed the bill, as to all the defendants, with costs; from which decree the plaintiff appealed.
    
      
       See monographic note on “Mills and Milldams” appended to Calhoun v. Palmer, 8 Gratt. 88.
    
   The following was pronounced as the opinion of this court.

*“The court is of opinion that, under the actual circumstances of this case, and especially, the great lapse of time which has occurred since the assessment of the damages under which the claim of Samuel Williamson to the sum in controversy is founded, and the acquiescence of the said Samuel Williamson (who probably resided in the neighbourhood) in the building the mill, (for which these damages were given,) without claim or objection on his part, the' damages aforesaid ought to be presumed to have been paid; and that, therefore, the bill of the. appellant as to the appellees, William Price and Robert Price, was properly dismissed by the decree now in question ; but, inasmuch as the payment of the' sum of fifty-four pounds twelve shillings, by the appellant to the said Williamson, was coerced by representations, on the part of the latter, which made it proper for the former to come into a court of equity to have the questions resulting from the claim aforesaid adjusted, if not, to pay the said sum to the said Williamson in the first instance, and, (as the matter now appears,) the said sum being so paid to him without consid-, eration; the court is of opinion that the said bill ought to have been sustained as to. the appellee Dabney Williamson, and he decreed to repay the sum aforesaid, with interest and costs, to the appellant. Therer fore, it is decreed and ordered that the said decree, so far as it dismisses the bill as to the last-mentioned appellee, be reversed and annulled; that the residue thereof be. affirmed; and that the appellee Dabney Williamson, out of the estate of his testator in his hands to be administered, if so -much thereof he hath, but, if not, then out of his own estate, pay to the appellant his costs by him expended in the prosecution of his appeal aforesaid here. And this court, proceeding, &c. it is further decreed and ordered, that the appellee Dab-ney Williamson, out of the estate of his. testator in his hands to be administered, if so much thereof he hath, pay to the appellant *the said sum of • 541. 12s. with interest thereon, to be computed, after the rate of five per centum per annum, from the 19th day of August, 1795, till paid, and his costs by him expended' in prosecuting his suit in the said court of chancery; but, if not, then the costs aforesaid to be levied of his proper goods and chattels. ’ ’  