
    Holliday and Wife v. Coleman and Wife.
    Argued Monday, March 25th, 1811.
    Res Adjajdicata — Application of Doctrine — Case at Bar. —A decree, by a court of competent jurisdiction, dismissing a bill, upon the ground that the deed under which the complainant claimed was fraudulent, is a complete bar to another original bill to try the validity of the same deed; the proper remedy, if such decree be erroneous, being by appeal, writ of error, supersedeas, or bill of review, and not by original bill.
    Chancery Practice — Life Tenant of Personalty — Security for Return — Matter of Discretion  — The power of a court of equity to rule a tenant for life, of slaves, or other personal property, to give security that the property shall be forthcoming at his or her death, is to be exercised, not as a matter of course, but of sound discretion, according to circumstances.
    In this case, after argument by Call and Wickham, for the appellants, and Warden, Botts and Williams, for the appellees, the following statement was made, and opinion of the court pronounced, by the president, on Monday, the 24th of June.
    In the year 1786, Robert Spilsby Coleman, and Mary his wife, exhibited their bill against Lewis Holliday, and Betty his wife, and stated that the said Betty, mother of the complainant Mary, was the daughter of Zachary Lewis, and intermarried with James Littlepage, by whom she had two children only; that the said Zachary Lewis departed this life, having first made his last -will and testament, whereby he bequeathed to the said Betty an eighth part of his slaves and personal estate, and a negro girl over and above an eighth, for the term of her life, and after her death to go to her children by the said James Littlepage; that, after the death of the said Zachary Lewis, the said James Littlepage also departed this life, leaving the complainant Mary, and Lewis, his only children by the said Betty, who, being possessed of a considerable number of slaves, her absolute property, and being about to marry a second husband, executed a deed of trust to her brother John Lewis, whereby she settled two negroes named Jenny and Sylvia, upon the complainant Mary, after her death; reserving to hereslf *a right to deliver them up to her daughter at any time; and soon after intermarried with the defendant Lewis Holliday; and charging that he intended to remove, with the negroes, out of the state, the complainants prayed that he immediately deliver up (under a promise of the said Betty) the said slaves Sylvia and Jenny, or other slaves in lieu of one of them, (whom the said Betty wished to retain in her possession,) and give bond and security not to remove the said slaves claimed under the will of Zachary Lewis, or any of them, out of the state, and to have them forthcoming at the death of the said Betty: and that a ne exeat be awarded, &c. until he should give such security.
    To this bill the defendants first demurred, for want of equity, and then fully answered it. For cause of demurrer, they stated that the promise, to deliver the negroes Jenny and Sylvia, or four others in the room of Sylvia, was (if made at all, which they expressly deny) charged by the plaintiffs to be a verbal promise made by the said Betty whilst a feme covert, and therefore not binding; and, as to the deed of trust made to the said John Lewis, it was, by the plaintiffs’ own showing, made without the consent or knowledge of the said Lewis Holliday, after he was engaged to be married to the said Betty; and not recorded until nine years thereafter; and, therefore, fraudulent as to him, and not binding.
    The defendants then filed separate and lengthy answers, wherein they expressly deny most of the principal charges in the bill, and charge complainant Robert Spilsby with great misconduct and ill be-haviour; and pray to be dismissed with their costs, &c.
    On the 25th of May, 1790, the chancellor decreed “that the deed of settlement, under which the plaintiffs claimed immediate possession of the slaves therein mentioned, was fraudulent as to Holliday the second husband; and for that cause allowed the demurrer; and, as to the security required to be given that the slaves, *which the plaintiff Mary, orher-rep-resentatives, may be entitled to on the death of her mother, shall be forthcoming, (all proper parties not being before the court,) he ordered that the bill be dismissed with costs, without prejudice to any bill that might thereafter be brought for such security.”
    ' On the —— day of May, 1798, the said Robert Spilsby Coleman, and Mary his wife, exhibited their bill against John Carter Littlepage, Lewis Holliday, and others, suggesting the death of Lewis Littlepage, beyond sea, and stating a variety of matter immaterial to be noticed here; and, in March, 1800, they filed a supplemental bill, making other defendants; but the principal object of which was (as far as it respected the appellants) to establish the deed of trust to John Lewis, dated the 14th of March, 1774, in the proceedings mentioned: to which bill the defendants Lewis Holliday and wife demurred, for the same causes as are stated in their demurrer to the former bill; and, by way of answer, deny *the death of Lewis Littlepage; insist on their demurrer; and say that the deed of trust was, in a former suit, between the plaintiffs and the said Lewis Holliday and wife, declared fraudulent; the decree in which suit they plead in bar. 
    
    In March, 1803, the same complainants filed a second supplemental or amended bill, stating the death of Lewis Littlepage, and making his principal legatee, and acting executor, Waller Holliday, a party defendant; and after his answer, and sundry other proceedings were had in the cause, which (having abated, as to the defendant Benjamin Lewis by his death, and being no further prosecuted, except against the defendants Lewis Holliday and wife) came on to be heard on the bill, answers, demurrer, &c.; on consideration whereof, the court, overruling the demurrer, decreed, “that the defendant Lewis Holliday give security in the penalty of -five thousand pounds, that the slaves in his possession, as well the negro girl and her descendants devised by the testament and last will of Zachary Lewis to his daughter Betty *Littlepage for life, and, after her death, to her children then living, as the slaves Sylvia and Little Jenny, mentioned in the indenture, made the fourteenth day of March, 1774, between Betty Little-page, of the one part, and John Lewis, of the other part, and the increase of the said Sylvia and Jenny shall be forthcoming after the death of the said Betty, agreeably to the will and deed aforesaid.”
    
      
       Res Adjudicate. — See monographic, note on “Judgments” appended to Smith v. Charlton, 7 Gratt. 425.
    
    
      
       Chancery Practice — Life Tenant of Personalty — Security for Return — Matter of Discretion. — Although it is a matter of course for a remainderman of personal chattels to file abill against the tenantfor life, for an account and inventory of the property, yet the court will not rule the tenant for life to give security to have the property forthcoming at his death, unless there appear some danger of its being wasted, or put out of the way. Mortimer v. Moffatt, 4 Hen. & M. 503.
      rL’o the point that the power of a court of equity to rule a tenant for life of slaves or other personal property to give security, that the property shall be forthcoming at his or her death, is to be exercised notas a matter of course but of sound discretion according to circumstances, the principal caséis cited in Amiss v. Williamson. 17 W. Va. 679. In this case (Amiss v. Williamson) it was held that where personal property is by the will left to the control of an executrix, to whom individually the interests and profits are given for life, and the property is to go to another, and the will directs tfiat no bond shall be required of the executrix, the remainder-man has such an interest, as would authorize him, under § 11, ch. 234 of the Acts of 1872-3. to move the court to require a bond of the executrix under the will.
      In Houser v. Ruffner, 18 W. Va. 251, 252, Judge Patton, announcing the opinion of the court, said: “I know of no law, which requires a life-tenant to give security for the return of money or other property upon the termination of the life-estate, unless those in remainder or reversion show such special circumstances, as call for the intervention of a court of equity by bill of quia timet. Chisholm v. Starke, 3 Call 25; Holliday v. Coleman, 2 Munf. 162; Mortimer v. Moffatt, 4 H. & M. 503; Frazer v. Bevill, 11 Gratt. 9; Dunbar v. Woodcock, 10 Leigh 638; Weeks v. Weeks, 5 N. H. 326; Scott v. Price, 2 Serg. & R. 59.”
      As to bills quia timet, see monographic note on “Bills Quia Timet” appended to Devries v. Johnston,’ 27 Gratt. 805.
    
   Which last decree the court is of opinion is erroneous, and ought to be reversed; and I am directed to report the following as the opinion of this court:

“The court is of opinion that the decree is erroneous, so far as it relates to the slaves Little Jenny and Sylvia, and their increase; inasmuch as, by a decree made the 25th day of May, 1790, in a suit between the same parties, the deed of settlement made the 14th day of March, 1774, in which the said slaves Little Jenny and Sylvia are mentioned, was declared fraudulent, as to the appellant Lewis Holliday, and the bill of the appellees dismissed with costs; which this court considers a complete bar to any claim of the appellees under the said deed of settlement. And, as to the slaves claimed by the appellees under the will of Zachary Lewis, this court discovers no sufficient ground to rule the appellant Lewis Holliday to give bond and security for their forthcoming after the* death of Betty Holliday. ”

Decree reversed, and bill dismissed with costs.  