
    Randolph v. Randolph and Others.
    Tuesday, March 10th, 1812.
    i. Sale of Personalty — Passing of Title — Presumption as to. — When a slave is sold and delivered altho’ without a hill of sale, it is to he presumed, prima facie, that the seller has parted with his title. If, therefore, he contend, that he reserved the title in himself, until the purchase money should be paid, the onus prohan di lies on him.
    a. Chancery Practice — Sale of Property under Execution — Injunction.—It seems, that a person who claims title to a slave taken In execution, may get relief in eauity, hy an injunction to prevent the sale; notwithstanding- his remedy at law. See this point more expressly decided in Wilson v. Butler, post.
    William Randolph, on the 4th of May,. 1808, presented a bill to the Judge of the Superior Court of Chancery for the Richmond District, setting forth, that in December, 1806, he made a conditional- sale of a negro boy, by the name of Horatio, to Isham Randolph, for 1101. to be paid, 200-dollars part thereof out of the said Isham’s then crop of tobacco, and the balance out of his ensuing crop; but that it was expressly stipulated and agreed, that he should make no bill of sale, and the property should not be changed, until the whole of the purchase money should be paid; that upon these conditions, the said Isham, took possession of the said slave, but he-altogether failed to pay any part of the said sum of 1101. and had become altogether insolvent; that notwithstanding the premises, John G. Woolfolk and John Hoomes, executors of John Hoomes, deceased, having issued a writ of fieri facias against the said Isham Randolph, had ^caused the said slave to be taken in execution by the Sheriff of Powhatan, who threatened to advertise and sell him to satisfy the said writ; and should he be purchased by some person living at a distance, or in some other state, the complainant might run the risk of losing him, as well as his debt aforesaid.
    The prayer of the bill, therefore, was, that the said Isham Randolph, the Sheriff of Powhatan, and the executors of John-Hoomes, be made defendants, and compelled! to answer, &c.; that Isham Randolph, having failed to pay the purchase money as aforesaid, be decreed to relinquish to the complainant all pretensions to the said slave; and that the said Sheriff be perpetually enjoined from proceeding to sell, and ordered to deliver him up to the complainant.
    The Chancellor granted the injunction.
    No answer was filed by Isham Randolph p a decree nisi was entered; but no further proceeding's appear to have taken place against him.
    From the answers of the acting Sheriff of Powhatan, and Hoomes’s executors, it appeared that those defendants considered the negro Horatio as being the absolute property of Isham Randolph; and that a bond to indemnify the Sheriff in selling, had been given, with ample security.
    It was proved, by depositions, that an agent of William ■ Randolph (the claimant) had claimed the slave on his behalf, and prohibited the Sheriff from selling him; that William Randolph, before he sold the said slave to Isham, had declared his intention to reserve the title in himself, until the 200 dollars were first paid; and that after selling and delivering him, he said that he had made such reservation. It was also proved, that Isham Randolph repeatedly told a witness that the negro boy Horatio, in his, the said Isham’s possession, was not his property, nor did he consider him as such, until he should pay the money agreed on to William Randolph, which he ^considered himself unable to pay, and therefore should return the said boy. But it was proved by another witness, that Isham Randolph, in December, 1806, told him, that William Randolph had agreed that he, the said Isham, should take the said negro, for which he was to pay sixty pounds, out of the crop of tobacco then prizing, at the estate he rented, and fifty pounds out of the next crop of tobacco; without saying any thing about the said reservation. No testimony was produced concerning any declarations by the complainant and Isham Randolph, when both were present.
    On the 18th of September, 1809, the cause was heard; and the Chancellor “being of opinion, that the injunction in this case should not have been granted, because, if the seizure in the bill mentioned, was unlawful, the law afforded a complete remedy,” decreed and ordered that the bill be dismissed; from which decree the complainant appealed.
    The cause was argued by Call, for the appellant,
    who quoted The Duke of Somerset v. Cookson, 3 P. Wms. 390, and Fells v. Read, 3 Vesey, Jun, 70, to show that in a case like this, the law did not afford a complete remedy; but equity had jurisdiction, and ought to give relief by injunction.
    No counsel appeared for the appellee.
    
      
      Chancery Practice — Sale of Property under Execution — Injunction.—In Virginia, the decisions seem to establish the principle, that a court of equity-should'not interfere, to prevent a creditor from seizing and selling under his execution any property which he may think liable to it: unless the property be of sucha clmracter that the owner cannot he fully compensated by the verdict of a jury giving him its fair market value; and that this can only be, where the property is of such a value that it may fairly be supposed to have a peculiar and additional value in the estimation of the owner, the pretium affectionis'. Baker v. Rinehard, 11 W. Va. 241, citing the principal case; Wilson v. Butler, 3 Munf. 559; Scottv. Halliday, 5Munf. 103; Sampson v. Bryce, 5 Munf. 175; Bowyer v. Creigh, 3 Rand. 25; Allen v. Preeland, 3 Rand. 175; Randolph v. Randolph, 6 Rand-198; Sims v. Harrison, 4 Leigh 346; Kelly v. Scott, 5 Gratt. 479; Summers v. Bean, 13 Gratt 417. See further, monographic note on “Injunctions” appended to Claytor v. Anthony, 15 Gratt. 518.
      In Lewis v. Spencer, 7 W. Va. 691, it is said that in the principal case it was held that a court of equity-might enjoin a sale of personal property until the-question of title was settled, and that a party claiming the property should not be left to an action at. law for uncertain damages; but that this decision was modified by the subsequent cases of Bowyer v. Creigh, 3 Rand. 25, and Allen v. Preeland, 3 Rand. 170-
    
   Monday, March 16th, 1812,

JUDGE ROANE

pronounced the Court’s opinion, that, “on the ground that the sale of .the slave in the proceedings mentioned, was admitted by the bill, and established by the testimony, and there was no evidence adequate to prove the reservation set up, on the part of the appellant, (and not on that stated by the Chancellor,) the decree is correct; and this the rather, because the appellant saw it proper to dispense with the answer of the appellee, Isham Randolph, (who ’was a party, and privj' to the whole transaction,) by setting the cause down for trial, without his answer. ‘

Decree affirmed.  