
    COURT OF APPEALS,
    NOV. TERM, 1804.
    Hilleary vs. Crow.
    Tit© point of chancery has full íiower to decide all questions oí' law ami fact which ariscin that
    The practice of referring such questions to a court of law aiul a jury, originated in the superiority of the trial by jnv>, but can be dispensed with m the discretion of fbe court ofchan-cery
    Win re the matter in dispute is amall, suen refer-«nee should not be made, but every thing should be decided by the eouit of chancery m the first instance.
    "Where the do-fendanthas agreed to convey to the complainant a tract hf land, and to give him possession on a certain day, and takes the complainant’s bond for the purchase money, and he afterwards sues on the bond, and gets a judgment, the court of chancery will enjoin such judgment and compel him to make allowance to the complainant for the value of such part of the land as he may failto-giye possession of at the time agreed on, from such time untlil possession be in fact given.
    ‘ Appear from a decree of the court of chancery. The bill states, that the present appellant, being seis-ed in fee of a tract of land called Peace and Plenty, containing 289 acres, did on the 28th of May 1781, soil the same to the complainant, fCrow,) for 40,000wt. of merchantable crop tobacco, and on that day executed a bond of conveyance, and the complainant passed his bond to the defendant for the pur-díase money. That the whole of the land was to have been delivered up on the 20th November then next. That one Burton was in possession of a part, bolding the same under an agreement with Dilleary; and that possession of that part of the said tract was not delivered to Crow on the day so agreed on, nor was it delivered until November 1793, although frequently demanded, &c. That the annual value of that part not delivered was worth 750lbs. of crop tobacco, no part of which Crow received, but that the same was paid to Hilleary. That there has never been any conveyance of the land to Crow. That the whole purchase' money has been paid except 51961bs. of crop tobacco. That he had hoped that in a court of law he might havp had a deduction for the value of that part of the said land held by Burton, for the time that he, Crow, was deprived of the possession of it. But that on a suit brought on the bond given for the purchase money, Crotv was advised that the same was no legal defence. That judgment was obtained on the bond in the general court at May term 1794, for the penalty and costs, to be released on payment of §196lbs. tobacco, with interest and costs; which quantity of tobacco was the balance due, deducting the sums of money actually paid, without making any allowance for the use of ¡the land so in the tenure of the said Burton. The bill prayed a conveyance and injunction, &c. The answer admitted that Burton held about 10 acres, not worth 5Qlbs. of tobacco per annum, and that he the defendant never received any rent for the same. That it was the complainant’s fault if he did not- get possession of the 10 acres, or receive the rpnt. That lie believes that Crow did receive some personal services from Burton. That possession was never demanded by Crow. That suit was brought on the bond, and every possible defence in pleading, and otherways, was made by Crow, but that a verdict and judgment was given for Hilleary. Testimony was taken under commissions.
   ITawsoN, Chancellor,

(10th March 1802.) As the value of the subject of contest in this cause is incon*. siderable, and as doubts may be entertained concerning the proper method of Ascertaining that value, it is proposed that the solicitors agree that the auditor of this court shall, from the evidence in this cause, state an account between the parties, in which he shall make such charges against the defendant as he may think the complainant entitled to on account of Burton’s land being withheld from hint, and that the said account, when returned to this court, shall be subject to exceptions, and be done with as the chan» cellor shall think fit. The object is to dispense with, the issue of quantum damnificatusf which perhaps might be considered as the proper measure, instead of a reference to the auditor.

HANSON, (May 4, 1801.) The solicitors of the parties having declined the agreement proposed by the chancellor, it is incumbent upon him to decide according to the best of his judgment,

He has never entertained a doubt of the power of this court to decide all points of law, and all questions of fact which arise in this court; although it has always been the practice to refer important questions of law apd fact to the decision of a court of law and a jury. He conceives that the practice originated merely from a sense of propriety. Inasmuch as a point of law, if decided by this court, might after-wards come before a court of law. it appeared proper to refer it to the court of law in the first instance; and inasmuch as the trial by jury is justly considered as far superior to a tidal by any one person whatever on written depositions, it has always appeared proper, and has therefore been the practice, to direct issues in important questions of f.ict.

In the present case it is merely on account of thq low value of the subject of inquiry that the chancellor chooses to make a reference to the auditor instead of directing an issue of quantum damniñeatus, &c. lie declares this, lest a precedent forenses of importance may hereafter be supposed to have been given. ■

It is ordered that auditor of this court state an account, &c.

Such an account was accordingly stated, and the auditor reported that there was due from Hilleary to Crow the sum 1601 4s 0d current money, for the value of that part of the land withheld, &c.

Key and Johnson, for the Appellant.

Shaaff, for the Appellee.

Haíssoií, Chancellor, (September lo, 1801,) having confirmed the report of the auditor, &c. decreed, that the defendant should convey, &c. to the complainant, the said land by good deed, &c. That the defendant should be perpetually enjoined from all further pro. ceedings on the judgment at law; and that he should pay to the complainant the sum of 361 18s 8ii current money, with interest from the 7th of August 1801, and costs, From this decree the defendant appealed to this court.

The CouRt oe Appears affirmed the decree of the Court of Chancery, without costs.  