
    Anderson and Starke v. Fox and Others.
    April, 1808.
    Executors and Administrators — Sale—No Debts - Purchase by Executor. — If an executor sells the slaves of his testator, when there are no debts to render such sale necessary, and buys them himself, the sale may he set aside, at the instance of any person interested.
    Same — Same — Same — Same — Trespass — Excessive Damages — Testimony ot Jurors — Vindictive Damages. — An executor having sold certain slaves which were specifically bequeathed by his testatrix: having become the purchaser himself: and, afterwards, recovered damages in an action of trespass against the sheriff for seizing and selling them as the property of the specific legatee, in whose possession they were found; a Court of Equity will require an account of his administration, to ascertain whether the sale, at which he was himself the purchaser, was necessary for the payment of debts, or not; and (even if the sale and purchase by himself be justified by the result of the investigation) will grant a new trial of the issue in the action of trespass; (though no motion to that effect was made at law;) in case the damages were excessive, and produced by erroneous impressions on the minds of the jury; and where the damages are evidently excessive, the testimony of the jurors will be received to declare the motives which induced them to give such damages. In such case, the damages ought not to be vindictive, but only for the value of the slaves, with a reasonable allowance for hire.
    Same — Ex Parte Settlement of Accounts. — Quere, how far an ex parte settlement of his administration account by an executor, with commissioners appointed, on his own motion, by the Court in which the will was proved, is valid?
    Same — Purchase of Trust Property by. — {giF’In this case, a doubt was suggested, whether, an executor could legally purchase the property of his testator sold by himself though the sale were public, and necessary for the payment of his debts; but it appears, from the decree, that such sale and purchase (the sale being necessary for the payment of debts,) would be confirmed if no fraud were proved.
    On an appeal from a decree of the late High Court of Chancery, dismissing a bill exhibited by the appellants against the ap-pellees.
    Nelson Anderson, one of the complainants, was surety for Richard Anderson, in a bond to Alexander Baine for 1,8891. 12s. Od. in paper money, which, being reduced by the scale, amounted to 1571. 9s., 4d. bearing interest from ^November 13th, 1778. A judgment was obtained upon it in Douisa County Court, by Philip Duval as assignee, and execution was levied on a negro woman Milley and two children, in the possession of Richard Anderson.— The sale was forbidden by John Rox, who set up a claim to them; whereupon Nelson Anderson, who was afraid of suffering as surety, and wished as much of the execution as possible to be satisfied out of the property of Richard Anderson, agreed to indemnify the sheriff, and became himself the purchaser of the slaves, at the price of fifty-five pounds. Rox brought his action in the District Court of Richmond, against Starke (the sheriff who had levied the execution) and recovered two hundred pounds damages.
    Nelson Anderson and Starke, as joint complainants, on the 9th of May 1801, obtained from the Chancellor an injunction to the last mentioned judgment; stating in their bill, among other things, that the slave Milley and her increase, with other slaves, were given by Susanna Rox, to her daughter Caty Anderson, wife of Richard Anderson, who was in possession of the said slaves, many years before the death of the said Susanna; that, by her last will and testament, (operating as a confirmation of the previous gift,) she bequeathed the same slaves to the said Caty Anderson, and other slaves to different persons; that the defendant, John Rox, was her executor, and assented to all the several legacies; that the other legatees were permitted by him. to enjoy their legacies without disturbance; but that he claimed the slave Milley, and her children, under the pretext that the estate of his testatrix was in debt; that, if such had been the fact, all the legatees ought to have contributed; that Richard Anderson was completely insolvent; and that there was an undue combination between the other legatees and the executor, to injure the complainant, Nelson Anderson; that he had no notice of the trial at law, which if he had had, he might, have prevented the recovery against Starke; that the damages were excessive; that, to avoid litigation, he had offered to give up Milley, and her children, *which John Rox had refused to accept. Richard Anderson and all the legatees were among the parties defendants. The bill also prayed a new trial of the issue at law; an account of John Rox’s administration of the estate of Susanna Rox, and contribution, if neces-sary, from the other legatees. It moreover charged a fraudulent and collusive recovery by Joseph Rox, of some of the slaves, given by Susanna Rox to Richard Anderson’s wife.
    The defendant, John Rox,
    on the 121 h of August, 1801, on his own motion, obtained an order of Douisa County Court, appointing William O. Callis, and others, or any three of them, to examine, state and settle the account of his executorship, on the estate of Susanna Rox deceased; in obedience to which order an account was taken and certified, by three of the persons appointed on the 22d day of the same month, and af-terwards admitted to record by the Court of that County. Rive days after this account was made up, to wit, on the 27th of August, 1801, he filed his answer in the High Court of Chancery; stating that fourteen slaves •were left and claimed by Susanna Fox; of whom five, including Milley, and her children, and a negro woman named Charlotte, had been sold for the payment of her debts; five had been recovered by Joseph Fox; one by the name of Phil, been a runaway for a considerable time, but (as he believed) had been retaken, and would be sold for the benefit of the estate; and the residue were secreted by Richard Anderson, and detained in his family; that the other legatees of Susanna Fox held their slaves by gifts in her life-time, of which her will operated as a confirmation only; but that Richard Anderson and his wife had no right, except that which they claimed under the will; that he, as executor, never assented to the legacy of Milley, and her increase, to Caty Anderson, and therefore had a right to sell them, to pay the debts of the estate; that the said estate was largely indebted to himself, as would appear by the certificate of the commissioners who had settled his account; (according to which, a balance, of 1541. 16s. *8d. 3-4, appeared to be due to him;) that Susanna Fox had lived at Richard Anderson’s for a considerable time before her death, and continued there till she died; that, while she lived there, some of the said slaves in her possession were seized by executions, against Richard Anderson, and released on her asserting her right to them; that if, however, these slaves were liable for the said Richard Anderson’s debts, he, the respondent, claimed them to satisfy a judgment which he had obtained many years ago, against the said Richard Anderson, in Fouisa County Court, for nearly three hundred pounds yet unpaid.
    Joseph Fox filed his answer, denying all fraud and collusion with respect to his recovery of the five slaves, which he claimed by a title paramount to that of Susanna Fox. — Ho answers were filed by the other defendants.
    The plaintiffs having replied generally, a number of affidavits were taken on both sides, which related principally to the circumstances under which the slaves were received, and held by Richard Anderson and his wife, and the reasons which induced the jurors to give such heavy damages. — It appeared from these affidavits, as to the first of these points, that Richard and Caty Anderson had been married upwards of twenty years; that Susanna Fox, after the marriage, went to live with them, and carried with her all her negroes and other personal property; that she continued to live there until her death; that, during her life-time, some of the ne'groes were taken by virtue of an execution against Richard Anderson, claimed by her, and relinquished by the sheriff, in consequence of her claim; and that, after her death, another execution against Richard Anderson was levied on Jenney, one of the said slaves; the sale forbidden by John Fox; a Jury impaneled and the property discharged. There was no proof that Mrs. Fox, had given, in her life-time, any of these negroes to Richard Anderson or his wife ; (except that one witness heard him say, that they belonged to him;) nor that he paid Mrs. Fox any hire for the use of them. It moreover, '^appeared from these affidavits, and the administration account of John Fox, that John Woodson and Robert Perkins, who had married daughters of Richard Anderson, did, on the 29th of March, 1791, deliver a parcel of negroes to John Fox, as executor of Susanna Fox, saying that they were authorised to deliver them; that this was done at a public place, at which the executor had them appraised and hired on the same day, according to a previous advertisement ; that one of them was hired by a certain William Smith, who again hired him to a certain Nelson Harris, by whom he was kept until a few days before Christmas, and then returned to the executor; that seven of the said negroes, viz. Hager, Barsha, Jenney, Milley, and her three children, Daniel, Aaron and Aggy, were hired to Caty Anderson, by consent of Richard Anderson, who afterwards refused to return them ; that the executor employed persons to retake them privately, and so regained possession of Milley, Daniel and Aggy; that he advertised and sold Milley and Daniel, at public auction ; became the purchaser himself at the price of sixty-one pounds; and entered a credit for that .sum on an “acknowledged account,” due from the decedent to him; that Milley ran away to Richard Anderson; as did also the other slaves who had been delivered and appraised as aforesaid; except Daniel, and Aggy who was afterwards sold by the executor to satisfy (as he alleged) further demands against the estate; that no suit was ever brought by the executor for these slaves against Richard Anderson ; that Milley remained in the possession of the latter until she had two children, which appeared to be twins, and was then, together with those children, taken and sold under the execution as before mentioned.
    As to the second point, the affidavits of three of the jurors stated that the Jury were induced to give 2001. damages, (and would have given a larger sum, if it had been demanded in the declaration,) on the ground that it was clearly proven, to their satisfaction, that the slaves belonged to John Fox; that Starke was apprized of this, the sale having *been forbidden, and was therefore guilty of an unwarrantable act. They stated also, that Starke was not present at the trial; that there was an attorney who defended the suit; but no evidence was adduced on the part of the defendant.
    Among the exhibits filed in the cause, were the will of Mrs. Fox; two letters from the complainant Nelson Anderson to John Fox, offering to give up the slaves, (one of wnom, to wit, the child George, died before the judgment obtained by Fox against Starke,) to pay the costs of suit, and hire, if any were due; which offers were not accepted; a writing under seal signed “Caty Anderson,” and dated April 20th, 1791, in which she acknowledged to have hired, for that year, the negroes Milley, Aaron, Daniel, Aggy, Hagar, Barsha and Jenney, described them as belonging to the estate of the late Susanna Fox deceased; and bound herself, her heirs, &c. to deliver them well cloathed, on or before the ensuing first day of January, to John Fox, executor to the said Susanna Fox; (the sum to be paid for hire, appearing from a memorandum at the foot of the writing, to be for Hager 40s. Barsha and Jenney 40s. and Milley, &c. 40s.) and, lastly, John Fox’s administration account, (settled under the order of Louisa County Court,) in which he charges 1861. 14s. 9d. as due from the testatrix to himself by bond; (although the affidavit of Kitty Perkins, a witness in the cause, stated that, when Mrs. Fox lay on her death-bed, Caty Anderson asked him, John Fox, how much her mother owed him, and, in answer to the question, he said it did not exceed eighty pounds;) credits the sale of Milley and her child Daniel, (purchased by himself,) at 611. of Phoebe, (a negro girl bequeathed in the will, to his own daughter Anne Fox,) at 171. 10s. and of Aggy, at 371. 10. omitting to give any credit for Charlotte, whom he acknowledged, in his answer, to have sold.
    The injunction awarded the complainants was .dissolved; afterwards reinstated by consent of the defendants, Joseph and John Fox, and by a like consent, brought on to a hearing, *when the bill was dismissed ; whereupon the complainants appealed to this Court. The appeal, having abated by the death of John Fox, was revived against Thomas Gardner, his administrator.
    Attorney-General and Wickham for the Appellants.
    Call and Randolph for the Appellees.
    The counsel for the appellants contended, 1. That, as a creditor and surety of Richard Anderson, who was insolvent, the appellant, Nelson Anderson, had a right, in equity, to stand in his place, and assert all his rights to Milley and the other slaves devised to his wife; that the title of Richard Anderson, if not supported by a gift in the life-time of Mrs. Fox, was good under her will; and that, the assent of the executor, ought to be presumed from his suffering Milley, and her children, to remain in his possession so long without suing for them, 
    
    In support of this position,, it was observed that the bill stated the estate of the decedent to have been amply sufficient to pay all the debts due from it, without sacrificing the interests of the specific legatees. The executor, in his answer, alleged that the estate was considerably indebted to himself; but the account exhibited by him, having been taken ex parte, on his own motion, and by commissioners selected by himself, was no proof of the truth of this.- — Therefore,
    2dly. The Chancellor, instead of dismissing the bill, ought to have directed a new account to be taken of John Fox’s administration. An account ought also to be directed of the property which came to the hands of the other legatees; for, though the defendant, John Fox, pretended that the slaves held by them were donations during the life of Mrs. Fox, they really stood on the same footing with Richard Anderson’s claim; and therefore, if in fact a sale for the payment of debts was necessary, they all ought to ’^abate in proportion,  This account being necessary, the Court of Chancery ought not to have decreed, till all the defendants were before it.
    3dly. The appellee, John Fox, ought not to have sold Milley to any person for the payment of a debt alleged to be due to himself, until that debt had been established; and, if he had a right to sell, his purchase for his own benefit was not binding, but might be set aside on payment to him of the purchase-money. The justice of his claim was very questionable, from the evidence of Kitty Perkins proving his declaration that Mrs. Fox owed him eighty pounds only; and, also, from that of another witness, (William Smith B.) that the voucher on which the claim was founded was an acknowledged account, whereas he charged it as a bond. If it was only an acknowledged account it might have been barred by the act of limitations. True it is, the executor could not have pleaded the act against himself ; but nevertheless, if the demand was old and stale, it ought not to be countenanced.
    The point, that, if the executor had a right to sell, he had not a right to become the purchaser, was strongly urged, on the ground of the similarity between the office and duty of an executor, and that of a trustee appointed to sell lands, who, according to a number of authorities, is not authorised to purchase for his own benefit, but only for the use of cestuy que trust. The authorities cited were 7 Bac. Abr. Gwillim’s ed. p. 181, the case of Whelpdale v. Cook-son, 1 Vessey, 9, Killick v. Flexney, 4 Bro. Ch. Cases, 161, Campbell v. Walker, 5-Vessey, jun. 678, and Sugden’s Law of Vendors, in which, from p. 391 to 405, all the doctrine on this subject is contained, and all the cases are referred to. — The general proposition laid down by Sugden is that trustees, agents, commissioners of bankrupts, assignees of bankrupts, solicitors to the commission, auctioneers, creditors who have been consulted as to the mode of sale, or any persons who, by their connex-ion with any other person, or by being employed or concerned in his affairs, *have acquired a knowledge of his property, are incapable of purchasing such property themselves; except under certain restrictions which he afterwards mentions.” This rule is founded upon the principle that there is an irreconcilable difference between the interests of the buyer and seller; since the former buys for as little as he can, and the latter sells for as much as he can. An executor, therefore, ought not to act in both capacities; and, if he sells and buys himself, any person interested may set the sale aside.
    4thly. The damages assessed by the Jury being excessive, as being greatly beyond the value of the slaves, the complainants were entitled to relief against them; especially as their ground of relief was originally an equitable one. It was obvious that the suit at law was not defended. — Starke summoned no witnesses, and Anderson was not informed when the trial was coming on. The Jury were influenced to give such vindictive damages by their supposing that Starke had been guilty of a wanton and atrocious invasion of private property without a colour of title. Tlie evidence, now, shews the contrary; and, if it had been before them, would have produced a very different verdict. What makes the case still stronger is Anderson’s oiler to Fox to give him up the negroes, and to pay hire for them which he refused to accept. This shews that the sum allowed him by the verdict was more than just on his own principles. But vindictive damages, in a case of this sort, ought not to have been given ; for, as the verdict changed the property, since the recovery in this action of trespass might be pleaded in bar to an action of trover for the same slaves, their value only ought to have been the amount of the damages. The sheriff, too, only did his duty, (as Eichard Anderson has been so long in possession of the property,) and if he had refused to sell, after being indemnified, might have been sued.
    *On tlie part of the appellees, it was insisted that the plaintiffs in equity were not entitled to relief on the ground of any objections to the administration account; because the action at law was for a tort — for a trespass committed by the public officer, in illegally taking away the property from Fox; that the verdict, therefore, ought not to have been influenced by collateral circumstances. It has been heretofore a practice in the Court of Chancery to grant injunctions to judgments for just debts, on the ground of other actions founded on torts being depending, by the complainants, in equity, against the plaintiffs at law; but that practice is now discountenanced.
    The case of a sheriff permitting an escape is similar to this. He is liable for damages, notwithstanding the plaintiff may still proceed against the debtor; and, if the escape be voluntary on the part of the sheriff, nothing afterwards will purge it.  The case, also, of Bangdon, executor of Dickenson, v. the African Co. and Dock-wray,  is analogous to this; for, there, the complainant, executor of Dickenson, brought his bill to be relieved from a judgment which Dockwray had recovered against his testator for a trespass, and the bill was dismissed, as to the defendant Dockwray. So here the sheriff asks to be relieved against a verdict founded on a trespass which he had himself committed.
    That Nelson Anderson indemnified the sheriff, and that, therefore, the sheriff ought to have the same remedy which he would have, is an argument of no weight. Starke, the sheriff, either gave Anderson notice of the suit, or he did not. If he did not, Anderson might plead the want of notice in bar of his action against Mm on the indemnifying bond. If notice was given, (which is most probable,) Anderson was the substantial defendant to the suit, and the verdict was found against him. The sheriff was Anderson’s agent; as in the case last cited, Dickenson was agent for the African Company, who were compelled to indemnify him.
    '^Strike out Anderson from the bill, and Starke has clearly no right to the relief requested; and, in every point of view, Anderson ought to be bound by the verdict as much as Starke.
    If Anderson be entitled to an account, he may go on for it in another shape, notwithstanding his injunction is dissolved; for in the case of White, Whittle & Co. v. Banister’s Executors,  the injunction was dissolved, and the complainants left to pursue the effects of Banister’s estate.
    Bet it be admitted that the verdict changed the property; yet the Jury had a right to give more than the value; the overplus being damages for the trespass. But there is no case where a Court of Equity has granted a new trial for excessive damages, without proof of fraud.
    As to the point that the executor who sold had not a right to purchase, this is not the law of Virginia; the custom of the country being altogether opposite to this doctrine; for the rule here is that, if the executor purchased fairly, he had a right to the property; if not fairly, the sale may be set aside; and that in such cases, the burthen of proof lies on those who suggest unfairness.
    With respect to the administration account exhibited by John Fox the universal practice is to admit such accounts, settled before commissioners ex parte, as prima facie evidence. In this case of Quinney v. Jett’s Executors, in the Federal Court, the Chief Justice of the United State decided that the audited account of an executor is prima facie evidence, and that it is incumbent on those who attack it to surcharge or falsify it. The executor may say that he has lost the receipts which he once laid before a competent tribunal; though if he has not lost, it is admitted that he is bound to produce them. If the account is not to be considered as having any effect until settled by a commissioner of the Higher Court of Chancery, an executor will never know what to rely upon.
    This would have been a clear case if the account had been filed before the bill: but its being filed since makes no difference; for a party cannot, by exhibiting a bill in equity, *take away the right of the County Court to call the executor to an account under a positive act of Assembly,  This account was taken on the motion of the executor himself; but that makes no difference; for he acted in conformity with his duty in making the motion. The bill calls for an account. The account which was taken, was made a part of the answer. If the plaintiffs did not like it, they ought to have exhibited exceptions; instead of which they replied generally.
    As to contribution, the suit is still going on, for that against the legatees, in the High Court of Chancery.
    In reply, it was argued that the cases cited from precedents in Chancery, 221, and 2 Wilson, 294, 295, were both inapplicable. In the former the merits were against the agent of the African Company ; in the latter, the party was not entitled to recover the full amount of the ■debt against the sheriff for an escape on mesne process; but only the damages actually sustained.
    The conduct of the executor was highly fraudulent throughout. Under the circumstances of the case, he had no right to withhold his assent to the legacy.: his refusal to assent was therefore fraudulent. At first, indeed, he did not refuse; for the will was recorded, September 13, 1790, and nothing adverse to Richard Anderson’s title appeared until 1792; during all which time Richard Anderson continued in possession. It is presumable, therefore, that he held with the assent of the executor. The producing the slaves to be appraised, and the hiring them to Caty Anderson, was a mere sham to shelter them from Richard Anderson’s creditors; as the smallness of the hire (being only six pounds for seven valuable negroes) clearly proved.
    The executor’s getting possession of Mil-ley and her children was by stealth in the night-time, and his subsequent sale was shortly afterwards. There was no proof that that sale was public, or that it had been advertised. The onus probandi lies on him to exculpate himself by shewing the circumstances. But, whether the sale was fair, or unfair, it was certainly void if no. debt rendered it necessary. A *sale to a third person by an executor is good, though no debt require it; the executor being, in that case, responsible to the legatees;  but it is otherwise where the executor is seller and buyer both.
    As to the account, the decision of Judge Iredell, which gave rise to that of the Chief Justice in Quinney v. Jett’s Executors, must have been founded on a supposition that the practice here was to summon all the parties interested, as in England. There the rule in the Ecclesiastical Courts is to serve a citation on the legatees and others ; and, when the account is once settled in that manner, it is conclusive. But, it is said, that the County Court had jurisdiction to settle the acc.ount. If so, the legatees ought to have been summoned; if it had not, there is an end of the question. Indeed^ said Mr. Wickham, I lay down the broad principle, that an account taken ex parte without summoning the legatees, ought to have very little weight in a Court of Chancery. To consider it as evidence would violate two important rules of law; that the best evidence the nature of every case admits shall be produced; and that no person shall be judged unheard. It would be unjust to make it incumbent on the legatees to surcharge or falsify; because, although many items might be altogether fictitious, it might not be in their power to shew their impropriety; it being impossible to prove a negative. But, be the general principle as it may, in this case the bill of the complainants demanded an account; not an account taken ex parte before commissioners nominated by the executor himself and appointed by the County Court without the knowledge of the legatees; but an account before a commissioner of the Court of Chancery, in presence of all the parties; not an account merely recorded without examination, as is always the case in the County Courts; but an account open to scrutiny and exceptions, before it should be received.
    The account itself, as exhibited, is highly objectionable on its face; Phoebe, a valuable negro girl, having been credited *at 171. 10s. Od. only ; Aggy at 371. 10s. Od. and Charlotte and Phil altogether omitted. In every point of view, therefore, a new account ought now to be directed.
    
      
       Toller’s Law of Executors, 242.
    
    
      
       Toller’s Law of Executors, 265, 266.
    
    
      
       Gro. Tfliz. 652, Bonner v. Stokeley; SWils. 291, Ravenscroft v. By les; 2 Bac. A'br. Gw. eel. 516.
    
    
      
       2 Wils. 295.
    
    
      
       Free. Ob. S21.
    
    
      
       1 Wash. 166.
    
    
      
       See Rev. Code, 1 v., p. 162, sect. 19.
    
    
      
       See Sale v. Roy, ante, p. 69.
    
    
      
       See i Burn’s Eccl. Law, 368,369.
    
   Monday, April 18. The Judges delivered their opinions.

JUDGE.TUCKER.

The equity of the appellants in this cause depends upon several distinct questions both of fact and of law.

1. Whether there was any actual gift by Mrs. Susanna Eox, in her life-time, of the slaves in question, to her daughter, the wife of Richard Anderson? It seemed, I thought, to be conceded, towards the close of the argument, that there was no evidence of such a gift; nor have I been able to find any direct evidence in the record to that effect; and the presumption from circumstances is, I think, against it.

2. That if Mrs. Anderson was entitled only as a legatee, the executor, Mr. Fox, had assented to the legacy. This is flatly denied by the answers, and there is neither direct nor collateral evidence to contradict the answer.

3. That Mrs. Fox left assets sufficient to pay all her debts without recourse to her slaves, which were specifically devised. Upon this point the evidence is very unsatisfactory. The executor swears, that the will of Mrs. Fox directs her just debts to be first paid, and authorises her executors to dispose of any part of her estate for that purpose; which .is correct. He then proceeds to state, that his testatrix left only fourteen slaves, whom he names, five of which, also named, were sold, and the produce of the sale credited the estate; but the account to which he refers has omitted a credit for one of them, named Charlotte. Another, whom he states to have been a runaway for a considerable time, and to have been retaken; and that he would be sold for the use of the estate, is not mentioned in the account referred to, nor in any subsequent account. *“That the estate of his testatrix,

after a full settlement of all accounts with him, is greatly indebted to him, as will appear by a certificate of the commissioners appointed for that purpose.” The account thus referred to, appears to have been submitted by an order of Eouisa County Court, after the commencement of this suit, on his own motion, to six commissioners named by the Court, or any three of them, to whom it is referred to examine, state, and settle the same, and to make report thereof to the Court, which three of them accordingly did, at the next succeeding Court. The bill contains a prayer that Fox may “settle his executor-ship of the estate of his testatrix;” but does not suggest any fraud in the account rendered; probably, because it was after the bill was filed; nor is there any exception to the answer, to which it is said to have been annexed, nor was there any motion for a reference thereof to a commissioner, as perhaps ought to have been done, unless it was intended to accept it, altogether, as it stood. And, although a .general replication was made to the answer, and a general commission awarded to take depositions, none appeared to have been taken, with a view to surcharge, or falsify, the executor’s account, nut the account is objected to as a mere ex parte proceeding, on the motion of the executor himself, without having been first summoned to render his account, and without any summons issued to the legatees, creditors, or other persons interested, to appear and attend, and contest the settlement if they should think proper. 'This appears to be the course of the Ecclesiastical Courts in England, as cited by Mr. Wickham, but I have strong grounds to believe has never been practiced in this country, even in the former General Court, which united common law, chancery and ecclesiastical jurisdiction, within its powers, and was the Supreme Court in this country, until the revolution. To call in question a practice sanctioned by that of the Supreme Court of the country for perhaps a century, and never, that I know of, drawn in K'question before the present occasion, is what I cannot presume to do. It ought, therefore, I conceive, to be taken as prima facie evidence of the several charges, and credits therein contained. But still, any person interested therein, may, I conceive, be at liberty by a bill in equity to surcharge and falsify the whole, if capable of adducing satisfactory evidence to that purpose. The present account, for example, may be surcharged by a reference to the defendant’s own answer, which admits the sale of one of the negroes, (Charlotte,) not credited in that account. It may, perhaps, be falsified ' also, if it be true, as suggested by the appellant’s counsel, (though possibly he may be mistaken,) that there was in fact no bond from the testatrix to her executor. The presumption is against him upon the face of the account, which states the amount of the principal even to a farthing, and charges Interest upon it from a particular day, which was probably the date of the bond. I mention it only to illustrate my conception of the proper course in such cases, which I take to be this: The party who wishes to open an executor’s account, (which has been returned and audited by commissioners appointed by the Court which granted the probate of the will,) by a bill in equity, in order to surcharg-e and falsify the account so audited and admitted to record, ought in his bill to suggest the grounds upon which he means to surcharge or falsify the account; and call for the inventory, appraisement, and account of sales of the estate, together with the vouchers in the hands of the executor. And, in case of any fraud, concealment, or diminution in the inventory, or in the accounts rendered, he ought to suggest the same in his bill, and seek a discovery; or, if any fraud or malpractice shall have been committed, or so supposed, in the payment of debts, or the settlement of accounts, or in the conduct of the sales, these things ought also to be specifically charged in the bill, that the executor may discover the same by his answer. And, upon a reference to the commissioner, the accounts so audited and returned to the Court granting the probate, *ought to be admitted in every respect as just and true, except as to such articles as may be surcharged or falsified by the evidence produced to him. In the present case, as there was no motion made lor a reference to a commissioner, I am inclined to think it was not incumbent on the Chancellor to refer the accounts, (as I see no necessity for putting the parties to such an expense, where the accounts are neither long nor intricate,) were it not that the answer itself disclosed the omission above noticed, therein. This of itself was sufficient to direct a reference, and the omission to do so, was, I think, an error. Especially as there were some other reasons, arising also out of the answer, to suppose that the executor has not rendered as perfect an account of the assets which came to his hands, as possibly he might; or that he omitted to possess himself of such parts of the estate of his testatrix, as he notices in the latter part of his answer.

As to the purchase of the negroes, Milley and her children, by the executor himself, I am by no means prepared to say, with the counsel for the appellants, that he is to be regarded as a mere trustee, as to the property of his testatrix, so exposed to sale, and purchased by himself. If this Court were to declare the law' to be such in all cases, even where there was an undoubted deficiency of assets, and,, although the sale should have been made after due notice, at public auction, and with all possible fairness, it would probably be the immediate parent of a thousand suits in Chancery, to set aside such purchases, either in hehalf of the legatees, distrib-utees, or creditors; although, as frequently ^happens, the executor should have been largely in advance for his testator’s estate, and should have saved it from total ruin by his exertions. What would be the consequences of such a doctrine, if we were to declare that the progeny of a female slave, so purchased, at any distance of time, might be recovered against the representatives of a deceased executor, or those claiming under him? The practice has been too general in this country, and has prevailed too long, to be now drawn in question, by analogy to the doctrines in England, concerning trustees of lands, or commissioners of bankrupt. Eor though executors and administrators are, to many purposes, considered as trustees in a Court of Equity, they are not so in all cases, At the same time, I am free to declare, that I think there may be cases, where the sale of a slave by an executor may be avoided by a legatee, distributee, or creditor of the testator, as I have before said, during' the last term, in the case of Sale v. Roy, from which opinion I have found no reason to depart.

It only remains to consider two other points:

The recovery by Joseph Rox is expressly denied both by that defendant and John Rox, the executor, to have been by collusion. I therefore think the bill was properly dismissed as to him. The suit for contribution, I understand, is still depending before the Chancellor. Nothing, therefore, ought to be said as to that point.

The next question is, whether the injunction ought to be dissolved at this stage of the proceedings. And I incline to think it ought not; for the damages against the sheriff who levied the execution and sold the slaves, appear to be vindictive, rather than according to the value of the property as twice before sold at public sale. And, if the complainants should, upon the final hearing of the cause, be entitled to relief, they would, in that case, be kept out of the money which they had wrongfully paid, for a long time. Ror these reasons, I do not think the injunction ought to be dissolved, and I concur in the decree which *has been agreed to in conference by the unanimous opinion of the court.

JUDGE ROANE. There is no doubt but that the damages given in this case were vindictive, and that the Jury in assessing them, had not a due regard to the injury actually sustained. This is evident from the testimony of three of the jurors themselves ; from a comparison of the sum recovered with the prices for which the slave in question had been twice sold at two several public sales; and from the offer of the appellant Anderson to give her up with her increase, in lieu of the sum recovered. It is a case in which, I presume, even a Court of Eaw would, on a timely and proper application, have granted a new trial; as such Court would have had sufficient data from whence to infer that the verdict had greatly exceeded the standard of justice. But as to a Court of Equity, the case of Ross v. Pines, informs us, that, although, in matters of tort, a Jury is not bound to an exact calculation, yet, where a verdict is owing to sudden passion in the Jury, it ought not to bind; but it is the duty of the Chancellor, in such case, to moderate the verdict. In that case, this temper in the Jury was merely inferred from the enormity of the second verdict compared with the first, and confronted by the Judges’ certificate, that the verdict was against evidence: In this case, this temper is admitted by the jurors themselves, and is further manifested by a reference to the data just mentioned.

Notwithstanding this character of the verdict, however, if this were now a mere law case, as no motion for a new trial was made in the Court of Eaw, I should doubt whether this court ought, on this ground,, to interfere. Even the alleged circumstance, that’Anderson received no notice from his co-plaintiff of the pendency of the suit against him, and therefore did not. defend it, would probably not furnish a just exception from the general doctrine. It ought riot to affect a verdict duly obtained by the appellee against a proper and sufficient party.

*But this is not a mere legal controversy. Circumstances exist in it which could not have been properly and availably brought forward in the trial at law, and which are peculiarly proper for the interposition of equity. Ror example, the public sale of the slave in question, and purchase by the executor, purported in him a complete legal title: but in equity it is more practicable and more proper than at law to impeach that sale by an inquiry, (which will involve an account of the exec-utorship, ) whether it was renderd necessary for the payment of debts, and whether it was competent for the executor himself to purchase. On these grounds, ulterior to any existing in the case at law, or at least existing more efficaciously in a Court of Equity, it is competent in such Court to impeach the verdict and demand a hearing of the case in equity, although a motion for a new trial was omitted to be made before the Court in which the verdict was rendered.

It is not necessary to decide, how far an ex parte settlement of his accounts by an executor, with commissioners appointed by the County Court, on his motion, is valid. That question is very important, and I should require to be aided by a fuller argument than has yet been urged, were it now to be solemnly settled. I believe, however, that the usage and understanding of the country has been to give to such settlements some validity. But, as to the case actually before us, I am clearly of opinion, that, after a suit is brought against an executor, the direct object of which is to inquire into and enforce a full' and fair settlement of his accounts before the Court of Chancery or its commissioners, the defendant shall not elude that object by slipping away into another County, and making an ex parte settlement by auditors appointed on his own motion. A settlement of this kind, and made under these circumstances, shall not affect or arrest the avowed object of the suits, as before mentioned. I lay no stress upon the circumstance, that the record dose not exhibit any

particular motion on the part of the appellants for a reference of the *accounts to a commissioner. The bill is always before the Chancellor, and it contains a prayer for an account. In the case before us, the settlement exhibited is not only of the character just mentioned, but it omits a credit of a negro, admitted by the answer of J. Rox to have been sold, belonging to the estate in question. This circumstance alone is conclusive, that a new account is necessary.

As to the general question, whether an ■executor can purchase slaves sold by himself at public sale, when necessary for the payment of debts, neither is that question necessary to be decided in the case before ■us. The consideration on which the decisions cited on the part of the appellants are founded, appears to me to be important; but I am not, at present, prepared to say how far these decisions consist with the usage and understanding of this country upon this subject; or what might be the consequences of adhering, in cases of this kind, to the principle stated in those decisions. I have, however, no hesitation to say, that a purchase made by an executor ■of property sold by himself, in a case where in truth no sale was necessary, may be vacated. In the case of Ewer v. Corbet, cited last term in the case of Sale v. Roy, the decision in which case entirely conformed to it, it was held that a purchaser of personal goods from an executor shall not have his title impeached, “for that it is not reasonable to put every purchaser from an executor to take an account of the testator’s debts, and that this would lay an embargo on personal estates in the hands of executors, which would be attended with great inconvenience.” As to strangers who purchase from executors, these reasons hold very strongly; but, as to the executor himself, who is at all times conusant of the state of the testator’s affairs, the reason seems to fail; and, if an executor sells and purchases in himself property which he knows (or might know) he has no right to sell, he is not injured, and cannot complain, if his purchase under such circumstances, should be vacated. I have no difficulty, therefore, in saying, that *if the state of the testator’s assets in the case in question (which will be ascertained by the account to be taken) did not justify the sale of this, or some ■other part of the property devised to Richard Anderson, the sale itself should be ■considered as if it had never been made.

As to contribution from the other legatees in this case, the plaintiffs have brought the cause to a hearing without in-eluding such legatees. Such contribution, therefore, (as between the parties to this suit,) cannot be decreed. The plaintiffs, however, will still have liberty to proceed against them, and, if their property be liable, may, in the final arrangement in this suit, make an end of the whole case by obtaining against them also a decree for contribution.

It results from these ideas, 1st. That an account ought to be taken of the state of S. Pox’s assets ; 2dly. That if that result should show that the sale and purchase by J. Pox, of the slaves in question, was made unwarrantably, and without necessity, (of which the Chancellor will judge on the report made to him by the commissioner,) the sale shall be considered as invalid, and the property in the said negro as having existed in Richard Anderson, at the time of the levying the execution under which she was purchased by the appellant, N. Anderson. This result would put an end to the •cause, and call for a perpetual injunction to the judgment in question; and, 3dly. That if, on the contrary, the sale and purchase be justified, and the slave in question consequently considered to have belonged to J. Pox at the time of the sale to the appellant ; the verdict in the trial at law, for the trespass, having been produced by improper motives on the part of the Jury, and being for a sum greatly exceeding the value of the slaves, or any injury which the appellee has sustained by the trespass; a new trial ought to be granted, and the appellants made liable only for the sum recovered in such second trial. I am of opinion, therefore, that the decree be reversed as to John Pox, the injunction continued, and the cause remanded to be proceeded in, in conformity with the ideas now stated.

* JUDGE FLEMING

pronounced the following as the decree which has been unanimously agreed to in conference.

This Court having maturely considered, &c. is of opinion that the said decree is erroneous in dismissing the appellants’ bill as to the said John Pox, instead of directing an account to be taken of his administration of the estate of his testatrix, the said Susanna Pox; but that there is no error in so much of the said decree as dismisses the bill against the said Joseph Pox. Therefore, it is decreed and ordered that so much of the said decree as is stated above to be erroneous, be reversed; that so much thereof as is stated not to be erroneous, be affirmed, &c. And this Court proceeding to make such decree as the said Superior Court of Chancery ought to have pronounced, It is further decreed and ordered, that the said Thomas Gardner, administrator as aforesaid of John Pox deceased, do make up before a commissioner to be appointed by the said Court of Chancery, a full and true account of the said John Pox’s administration on the estate of the said Susanna Fox deceased, after due notice to the adverse parties; and that the said commissioner make report thereof to the said Court of Chancery for further proceedings to be>»had thereon. And, if, on such account, it should appear to the satisfaction of the said Court that the sale of the slave Milley, in question in this suit, or any other part of the property bequeathed to Richard Anderson in and by the last will of the said Susanna Pox deceased, was necessary for the payment of her debts, the sale made by, and purchase of the said slave Milley by the said John Pox, be confirmed; that, in that event, a new trial of the issue in the action of trespass in the proceedings mentioned be awarded by, and the verdict certified to, the said Court of Chancery; with liberty to the appellant, Nelson Anderson, to become a party defendant in the said issue and defend the same; that, upon the return of the verdict aforesaid, if *the sum thereby recovered be of smaller amount than the sum enjoined in this suit, the injunction be decreed to be perpetual for the excess, and dissolved as to the residue. But if the said account should ascertain (on the other hand) that neither the said slave Milley, nor any other part of the property of the said Richard Anderson, derived under the will aforesaid, was necessarily sold, or liable to be sold, for payment of the debts of the said testatrix, that then, and in that event, the purchase of her by the said John Eox should be held to be void; and also, as depending thereupon, the verdict in the action of trespass aforesaid; and that the said Nelson Anderson be decreed to be quieted in his purchase of the slave aforesaid, and the injunction granted in this case be declared to be perpetual.” 
      
       4 Bum’s Recles. Law, 368, 369.
     
      
       Note by Jtocho Tuckbr. "The onus probandi is always on the party haying- liberty to surcharge and falsify: for the Court always takes it as a stated account, and establishes It.; but, if any of the parties can shew an omission, for which credit ought to bo given, that is a surcharge. Or, if any thing is inserted that is a wrong charge, he is at liberty to shew it, and that is a falsification: but that must be by proof on his own side.” Per Ld. Hardw.. 2 Vez. 566, Pitt v. Cholmondeley. See also 3 Bro. 62, Brownell v. Brownell. — Note in Original Edition.
     
      
       2 Vez. 482.
     
      
       Ante, p. 89.
     
      
      
         3 Call, 568.
     
      
       2 P. Wms. 148.
     