
    *Erskine v. Henry and Wife and Others.
    April, 1835,
    Richmond.
    Executors—Personal Decree—Appeal-Appeal Bond. —Suit in equity against defendant as executor and in his own right as legatee, and decree against him personally; on appeal allowed him from the decree, an appeal bond with surety shall be required of him.
    Appeal— Interlocutory Decree—Appeal Bond.—Interlocutory decree directs defendant to deliver up slaves to be divided among plaintiffs, and then final decree against him for the profits; defendant appeals from both decrees: Ueiu), if defendant ha& complied with the interlocutory decree by delivering the property, he shall not be required to give an appeal bond with surety for delivery thereof in case of affirmance; if he has not so complied with it, such appeal bond shall be required.
    Same—Same—Same—Evidence—Appellate Court.—And upon the question, whether defendant has so complied or not. parol evidence, by affidavits, will be received in the appellate court.
    Absolom M’Coy of Berkeley county died in 1803, and by his last will and testament, devised and bequeathed to Rebecca Crouch, all his estate real' and personal, during her natural life, and that, at her death, all his slaves should be set free; and by a residuary clause, he further devised and bequeathed all his personal estate, from and after her death, except his slaves who were to De set free, to Thomas Fakes and George Fakes. Rebecca Crouch took possession of the testator’s slaves, and held them till her death in 1828; and during the continuance of her life estate, there were eight slaves born of those bequeathed to her by the testator. She left a will by which she devised and bequeathed all her estate to James Erskine; and referring to the bequest of slaves to-her in M’Coy’s will, she directed that Erskine should hire out such of those as should not be of full age at her death, to-kind masters, till they should attain to full age, and take the profits to his own use; and she appointed Erskine her executor who took probat of the will, and took possession of the eight slaves *above mentioned, who were born during the continuance of R. Crouch’s life estate. These eight slaves brought a suit against Erskine, in the circuit court of Berkeley, to recover their freedom, which they claimed under the will of M’Coy; but the circuit court adjudged, that they were' not entitled to freedom. See Maria v. Surbaugh, 2 Rand. 228.
    Upon this, Joseph Henry and his wife Charity, who was one of the next of kin and distributees both of the testator M’Coy, and of his residuary legatees Thomas and George Rakes, exhibited a bill in the supe-riour court of chancery of Winchester against James Erskine in his own right and as executor of Rebecca Crouch, Philip Na-denbousch sheriff of Berkeley, to whom administration de bonis non of the testator M’Coy’s estate, and administration of the estates of his residuary legatees Thomas and George Eakes, had been committed, the other next of kin and distributees of the testator M’Coy, and the other distributees and next of kin of the residuary legatees Thomas and George Eakes; the distributees of the residuary legatees Thomas and George Eakes, being the female plaintiff Charity Henry, Harriet Eakes, and the infant children of Mary Eakes deceased. The bill claimed, that the eight slaves in question belonged to the testator M’Coy’s estate; and that that testator either died intestate as to these slaves, and therefore they devolved to his next of kin and dis-tributees; or that they passed by the residuary bequest in his will, to Thomas and George Fakes, and therefore belonged now to their next of kin and distributees. And the bill prayed, that the court would decree the slaves in question to the parties entitled thereto, and an account of the profits accrued since the death of Rebecca Crouch.
    Erskine answered as executor and legatee of Rebecca Crouch; and insisted, that these eight slaves, born of the slaves manumitted at her death, during the continuance of her life estate therein, were her property; and he claimed them therefore as her sole legatee.
    *And the other party defendants being all before the court, the question was, whether these slaves belonged to Rebecca Crouch’s estate, and therefore now to Erskine — nr to the testator M’Coy’s next of kin and distributees — or to the next of kin and distributees of Thomas and. George Eakes, the residuary legatees of M’Coy?
    The cause being transferred to the circuit superiour court of Berkeley, that count, at September term 1832, pronounced an interlocutory decree, declaring that the eight slaves in question belonged to the next of kin and distributees of Thomas and George Eakes; and therefore directing, that the defendant Erskine should deliver them to Nadenbousch sheriff and administrator of Thomas and George Eakes, to be distributed among their next of kin and distributees, and that he should render an account of the profits of them since the death of Rebecca Crouch, before a commissioner of the court.
    The commissioner reported an account of the profits, shewing that they amounted to 583 dollars; and stating further, that Erskine claimed a credit for the expenses incurred by his testatrix in rearing the eight slaves from their birth till her death.
    And at April term 1833, the circuit supe-riour court, declaring that Erskine was not entitled to the credit he claimed for rearing the slaves, decreed, that he should pay the 583 dollars of profits, to the distributees of Thomas and George Eakes, one third to each, and that the defendant Nadenbousch should deliver the slaves to them.
    Erskine applied to the president of this court for an appeal from both the interlocutory and final decree; and the appeal was allowed him, “on the usual terms as respects administrators and executors.” Erskine gave an appeal bond with surety in the penalty of only 500 dollars; and thereupon, the record was sent to this court, and the appeal docketed.
    ^Johnson, for the appellees,
    obtained a rule on the appellant, to give another appeal bond with surety, in a penalty sufficient to insure compliance, and with condition to comply, with the interlocutory as well as the final decree; that is, for the delivery of the slaves in question according to the interlocutory decree, and for the payment of the profits adjudged in the final decree. And upon the return of the rule, he said, that the bill was filed against Erskine as executor of Crouch and in his own right as her legatee; that the interlocutory decree for the delivery of the slaves was against him in his own right; that he had appealed from the interlocutory as well as the final decree; that if the decree was right in principle, the slaves were not assets of his testatrix in his hands to be administered; that he and not his testatrix had unjustly detained them, since the testatrix was undoubtedly entitled to hold them during her life; and that, therefore, an appeal bond ought to be required for the delivery of the slaves, as well as for the payment of the profits.
    Stanard for the appellant,
    said, that he took the slaves under the will of Rebecca Crouch and as her executor; and if they belonged to her estate, though he was her sole legatee, they were assets in his hands subject to the claims of her creditors, and that, therefore, he was not bound to give an appeal bond for the delivery of them. But, however that might be, he remarked, that the interlocutory decree, made in September 1832, directed the appellant to deliver the slaves to Nadenbousch; and the final decree in April 1833, directed Nadenbousch to deliver the same slaves to the distributees of Thomas arid George Fakes; whence it was fairly inferrible, that the slaves had been actually delivered to Nadenbousch in conformity with the interlocutory decree; and in that case, the appellant ought not to be required to give an appeal bond for the slaves. At any rate, the rule should be enlarged to give opportunity for proof as to the fact ^whether the appellant had delivered the slaves to Naden-bousch or not.
    Johnson said, that such an appeal bond should be required, as the decrees, and the appeal taken from them, indicated to be proper; and he doubted, whether the court could receive parol evidence to prove that the slaves had been delivered to Naden-bousch under the interlocutory decree. And as to the inference from the terms of the final decree, that the slaves had been delivered to Nadenbousch according to the interlocutory decree, the court could not act on that inference, seeing that the appeal was taken from the interlocutory decree; and moreover, as he was informed, the inference was contrary to the fact.
    
      
      See Pugh v. Jones, 6 Leigh 299, and note. See Erskine v. Henry, 9 Leigh 199.
    
   TUCKER, P.

In the case of Pugh’s ex’or v. Jones (reported ante, p. 299), I have stated the principles, which appear to me to govern in questions relative to the demand of surety on appeals by executors and administrators. I shall not repeat them here. Suffice it to say, that, according to those principles, Erskine ought to give security, unless there is some particular reason for exemption. His counsel contends that there is; that the decree has been carried into execution, by the surrender of the slaves by Erskine to Nadenbousch, the committee administrator, and that Erskine therefore ought not to be held to security for them.

Two questions here present themselves: 1. Whether, where the decree has been in part executed, and the property surrendered, the appellant should be bound to give security for it? and 2. Whether this matter can be established by evidence aliunde?

As to the first, I think there can be no reasonable doubt, that if the property has been taken from the possession of the defendant, and placed in the hands of Naden-bousch by order of the court, it would be unreasonable to require that the appellant should become *bound for the property. If the property was in his possession, indeed, he might well be required to give security against its eloignment. This is, however, the very object of the security; and if he has not possession, and therefore cannot eloign, that object cannot exist. Or, to put the case more strongly: if he had possession, it might well be required, that he should give security for its forthcoming, because he would have it in his power to produce it. But if it is not in his possession, he has it not in his power to produce it, and it would therefore be unreasonable to require him to give security for doing that which is not in his power. Nay more: it has been taken out of his possession by judicial authority, and placed in the hands of a person not responsible to him, and for whose acts, therefore, he is not responsible. To require him to give bond for the production of property thus situated, would be oppressive and unjust; and if it clearly appeared on the face of this record, that the property had been actually given up, I think there could be no doubt about the matter. In the case of Bull v. Douglass, 4 Munf. 303, an interlocutory decree was rendered for the sale of certain mortgaged premises, to raise a very large sum. The sale was made, and the proceeds being credited, there still remained a balance for which a decree was rendered. Bull was advised, that the decrees were erroneous, and appealed. Security was demanded only for the balance, after crediting the mortgage; and yet both decrees were reversed, and the sale was set aside. It is very true, that there, there was the land standing as security pro tanto; but it did not follow, that upon a future sale, it would command the price which was given upon the first. It would seem, therefore, that in the requisition of security, the court must have been governed by the fact that a large portion of the decree had been discharged by the sale of the mortgaged subject. Our statutes pursue a like principle; for if a *'pa.rty is unable to give bond and security for the debt, he may have his appeal on giving security for costs only, and the decree shall not be superseded. Pari ratione, it would seem, that, where the decree has been satisfied or obeyed, the appellant should not be required to give an appeal bond for more than the costs. It is well established, that after judgment has been executed, a supersedeas, writ of error or appeal, may well lie; and that, upon reversal, the appellant shall have a writ of restitution of what he has paid. White v. Jones, 1 Wash. 118. In such case, it is either unjust, or a solecism, to require bond and security for payment of the debt, in case the judgment be affirmed. Por, if the debt has been already paid, it would be unjust to make the party pay it a second time; and if he is not bound to pay it, it is a solecism to require a bond to compel him to do so. So here; if the party has already performed the decree, cui bono require him to give bond to perform it, or to perform such part as he has already performed?

I cannot think, therefore, that security should be required for that part of the decree which has been complied with. But this matter is not altogether so clear on the face of the record as I should desire, though certainly the strong presumption is, that the slaves have been surrendered.

The next question, therefore, is, whether the fact can be established by evidence aliunde? I can see no valid objection to it. In these incidental motions, this court must take, and very commonly does resort to oral evidence, to guide its judgment. Thus, on a rule for additional security, the question of solvency is tried upon affidavits. Indeed, if the right to appeal without other security than for the costs, where the decree has been complied with, is once admitted, it is clear, that in many cases it must be asserted by the production of oral evidence. In case of a judgment, indeed, the defendant *may submit to an execution, and thereby procure record evidence of satisfaction. But in equity, this is not always so. If the party obeys the decree, there is not, necessarily, any record evidence of the fact. Thus, where the delivery of possession of a slave is decreed, and the decree is complied with upon demand, I know of no record evidence of the fact of delivery, which the party can produce. We must, therefore, deny the right, or admit the evidence. The case is analogous to that of the writ of restitution. There, if the levy of execution, and payment of the debt, appear by the record, restitution is at once awarded upon reversal. Where it does not appear, there must be a scire facias suggesting the fact of payment, and that fact is to be tried upon extrinsic evidence. 2 Salk. 588; 2 Wms. Saund. 101, y. in notes, 4 Leigh 319, 320. In this court, that is done by motion, upon notice, which in the in-feriour courts is done by scire facias.

I am therefore of opinion, that this matter may be examined upon parol evidence, and that the rule should be enlarged for the purpose of having it ascertained. I shall only add, that unless the evidence is unequivocal, I should incline to demand the security.

The other judges concurred; and the rule was enlarged. Finally, the court required a new appeal bond with surety, in the penalty of 6000 dollars, it not being made to appear, that the slaves had been delivered to Nadenbousch under the interlocutory decree.  