
    
      Johns v. Davis’s Ex’or and Others.
    March, 1844,
    Richmond.
    (Absent Cábele, P., and Stanard,* J.)
    Equity Practice — Removal of Slave from State Pending Injunction — Contempt—Relief of Reversion,— Upon a bill in equity by a reversioner of slaves, against the husband of tenant for life, alleging a purpose to remove one of the slaves out of the commonwealth, an injunction is awarded, and bond given by the husband with surety, conditioned to abide by and perform the final decree of the court. Upon an amended bill against the surety as well as the husband, it appears that the surety, while bound as such, and of course with full knowledge of the plaintiff’s claim, caused the slave to be removed and sold out of the common■wealth, through the instrumentality of an agent. Held, 1. That for such removal and sale in contempt and subversion of the court’s authority, it is competent for the court to give redress and vindicate itsurisdiction by decreeing in favour of the plaintiff against both the obligors in the bond. 2. That the measure of relief is not for the value of the slave, but for the value of the plaintiff’s reversionary estate in her, which should be ascertained by reference to a commissioner. 3. That the agent of the surety, by his agency in the removal and sale of the slave, would have subí ected himself to the like decree, if he had known at the time of the claim of the plaintiff, and had confederated with the surety to defeat the same.
    Same — Interrogatories.—Case in which a defendant was broughtin by a messenger to answer interrogatories.
    Benjamin Davis of Campbell county died intestate leaving no children, whereby his widow became entitled to one half of his personal estate, including the use for her life of two slaves named Billy and Esther, who were in her share. The widow removed to the state of Tennessee and married John W. Evans.'
    In 1821, William Davis senior the father of Benjamin, and the reversioner in the two slaves, exhibited a bill in equity to the superior court of chancery at Bynchburg against Evans, setting forth that the 730 slaves had till *then remained in Campbell county, but that Evans had come to Virginia for the purpose of removing them out of the commonwealth. An injunction was prayed to restrain their removal, which the court awarded.
    An amended bill was filed, setting forth, that before the process was served upon Evans, he actually removed the slaves out of the commonwealth. It alleged that there were moneys or affects in the hands of Thomas Eox as administrator of Benjamin Davis, to which Evans in right of his wife would be entitled, the amount whereof would depend upon a suit in which Eox as administrator of Davis was plaintiff and Jesse Harvey was defendant. Eox and Harvey were made defendants as well as Evans, and an injunction asked to restrain Eox and Harvey from secreting or paying over the said moneys or effects. The bill also prayed that Evans, who it was insisted had forfeited his and his wife’s interest in the slaves by removing them from the commonwealth, might surrender the slaves, or that the plaintiff might receive from Harvey and Eox the value of them.
    A restraining order was made, in May 1822, according to the prayer of this amended bill. After which Evans brought the slaves back into the commonwealth, and the plaintiff’ thereupon went into the office of the court of chancery and consented that the said order should be discharged, so as to permit Evans to collect from Fox and Harvey whatever he should be entitled to from them.
    In May 1823, a second amended bill was filed, alleging that it was the intention of Evans to remove the slaves out of the corn-monwealth, or sell them to some person for the purpose of being removed, and praying that the injunction might be reinstated until Evans should give bond and security that he would not remove them. The injunction was reinstated accordingly; and ■ thereupon, to wit, on the 13th of June 731 *1823, Evans gave bond with Cornelius Turner his surety, in the penalty of 2000 dollars, conditioned that he would abide by and perform the final decree of the court of chancery in the cause.
    In November 1826, a third amende;! bill was filed against Turner, alleging, that after the bond was given, Evans left Esther with Turner, who was his brother in law, and that she had been carried out of the commonwealth and sold by Turner or his agents.
    A fourth amended bill was filed, making defendant thereto William Helm, who had in possession the slave Billy and other effects of Evans.
    Evans answered, that he sold Esther to Turner, and in the sale sacrificed her value by binding Turner to continue her in the state.
    Turner, though served with a subpoena as early as the 17th of March 1827, not having filed any answer, the circuit court of Lynchburg (to which the case was by law transferred) made an order, on the 11th of January 1833, that he should be brought in by Hill Shaw, a messenger for that purpose, on the Wednesday following, to answer interrogatories. Turner was accordingly brought in, and by his answers to the interrogatories it appeared, that he placed Esther in the hands of Daniel Johns of Pittsylvania to sell, and he afterwards understood from Johns that she had been sold by him for 2S0 dollars; but whether she was in or out of the commonwealth, he (Turner) did not know.
    Thereupon, to wit, in February 1833, a fifth amended bill was filed, alleging that Johns, with a perfect knowledge of the plaintiff’s right and of the pendency of-this suit, carried Esther out of the commonwealth and sold her; charging a combination between Evans, Turner and Johns to deprive the plaintiff of his reversionary estate; insisting that the act of carrying the slave out of the commonwealth was a forfeiture of the life estate, and that he was entitled to receive from any or all of those participating in the act the full value of the slave.
    732 *Johns, by his answer, admitted that he sold Esther as agent of Turner, but denied that he had confederated with Turner to defeat the plaintiff’s claim, and indeed denied that he had any knowledge of the claim.
    He did not admit that the slave was removed and sold out of the commonwealth : but in the opinion both of the circuit court and of this court, the fact was clearly established by the evidence. The circuit court was also satisfied from the evidence, that Johns confederated with Turner With full knowledge of the situation and title of the slave.
    The cause having been revived in the name of the executor of Davis against the administrator of Evans, the circuit court, on the 4th of February 1835, decreed that Turner and Johns out of their own proper goods, and the administrator of Evans out of the goods of his intestate in his hands, should pay to the plaintiff the sum of 300 dollars, the value (in the opinion of the court) of Esther, with interest from the 16th of June 1826 (the time when she was sold hy Johns) and the costs. But the plaintiff was not to have execution of the decree against Evans’s administrator unless it should be ascertained that the money could not be made out of the other defendants. In case he should be subjected to payment, leave was given him to apply for a decree over. And liberty was reserved to Johns, in. case the money should be made of him, to apply for a decree over against ’Turner..
    On the petition of Johns an appeal was allowed.
    *Stanard for appellant.
    As a general rule, a bill in equity will not lie for a reversioner or remainderman to recover from the tenant for life a slave or the value, upon the ground of a forfeiture having been incurred under the statute. The penalty is severe, and it would be contrary to a fundamental principle of equity to aid in its recovery when the party has a remedy at law. Eivingston v. Tompkins, 4 Johns. Ch. Rep. 431. The case cannot be different here, merely because the plaintiff had applied before to the conservative power of the court to secure the property to him when his right of enjoyment should accrue.
    But the decree goes beyond the statute. That, while it forfeits the husband’s life estate for his wrongful act, does not affect the interest of the wife, who has committed no wrong. At all events, the liability created by the statute is only of the husband or the tenant for life. When a third person is liable for aiding in the eloignment of a slave, that liability does not result from the statute; it is not independent of the actual damage, but is strictly measured by such damage, and cannot be carried beyond it.
    C. Johnson for appellees.
    Turner, if Johns had not intromitted at all, would have been liable to the decree which was rendered. And if so, how can Johns stand in a better situation? He acted in combination with Turner, and under his direction ; he acted pendente lite; he acted, as we contend, with full and actual 734 knowledge *of the pendency of this suit, and of Davis’s rights in the property.
    The court of chancery, having properly taken jurisdiction for the purpose of protecting the plaintiff’s rights in remainder, as properly proceeded to decree indemnity for the violation of those rights, perpetrated while the suit was pending, and in defiance of the restraining orders of the court. It is immaterial that the conduct of the defendants produced a forfeiture of the life estate, and an immediate right of possession on the part of the plaintiff. The jurisdiction originally vested in the court was never afterwards divested. And when the court was satisfied that the slave was irretrievably gone, it properly proceeded, having all the parties and all the facts before it, to do complete justice and put an end to the controversy, without imposing on the injured party the burthen of a new litigation at law.
    Grattan, on the same side, cited Sparks v. Eiverpool Waterworks, 13 Ves. 428; Hill v. Barclay, 16 Ves. 402; S. C. 18i Ves. 56, and Bracebridge v. Buckley, 2 Drice 200; 1 Eng. Excheq. Rep. 216, as cases shewing the limitation on the powers of courts of equity to relieve against forfeitures; Whetstone v. Bury, 2 P. Wms. 146; Picketts v. Dowdall, 2 Wash. 106, cases in which the defendant in equity was held entitled to set up a forfeiture by the plaintiff, as a defence against the claim asserted by the bill; Fon-taine v. Phoenix Insurance Company, 11 Johns. R. 293; Kennedy v. Strong, 14 Johns. R. 128, and Wilkins v. Despard, 5 T. R. 112, cases which decide that under the operation of forfeiture the present estate is absolutely determined, and the property vested absolutely and immediatelj' in the remainderman or reversioner, so that he may maintain detinue or an action for money had and received; and Peachy v. Duke of Somerset, 1 Str. 452; Attorney General v. Duplessis, 2 Ves. sen. 286, and Harrison v. Southcote &c., 2 Ves. sen, 389, in which equity lent its aid directly to enforce rights founded upon forfeitures.
    735 *Stanard. There is no evidence to prove any such knowledge or confederacy on the part of Johns as the circuit court and the counsel on the other side have supposed.
    
      
      He had been counsel for the appellant.
    
    
      
      The principal case is cited in Brown v. Lambert, 33 ratt. 266.
    
   BALDWIN, J.,

delivered the following as the opinion of the court:

The court, without considering whether it is competent for a court of equity to enforce the forfeiture of the life estate in slaves, incurred by the tenant for life’s removal of the slaves beyond the limits of the commonwealth, to the prejudice of the right of the remainderman or reversioner, is of opinion that the claim to such forfeiture on the part of Davis, the appellee’s testator, asserted in his first amended bill in regard to the slaves in the proceedings mentioned, removed from the commonwealth by Evans the intestate of the appellee Fox, was waived, after said Evans had brought back said slaves, by the consent of said Davis to discharge the restraining order of May 1822 against the effects of said Evans, and his proceeding afterwards by his second amended bill, and the injunction and restraining order of May 1823 obtained thereupon, to prevent the said Evans from again removing the said slaves out of the commonwealth. And the court is further of opinion that the effect of the injunction against the removal of the slaves, granted by the last mentioned order, and of the bond given by said Evans with the defendant Turner as his surety, under the provisions thereof, conditioned to have said slaves forthcoming to answer the decree of the court, would have been to secure to the said Davis the relief sought by his second amended bill, inasmuch as the court, upon the hearing of the cause, could have directed that said Evans should give bond and security conditioned against the removal of the slaves from the commonwealth, and in the event of his failure, that the slaves should be kept within the *power and under the control of the court. And the court is further of opinion that the subsequent conduct of said Turner, after he had obtained possession of the slave Esther from said Evans, and while bound as his surety as aforesaid, and of course with a full knowledge of said Davis’s claim, in causing said Esther to be removed and sold beyond the reach of the court, was in contempt and subversion of its authority, and that it was competent for the court to give the only redress within its power, and to vindicate its jurisdiction, by decreeing against said Turner, to the party injured, the value of the reversion in said slave Esther; and that said conduct of said Turner was moreover a breach of the condition of the bond executed as aforesaid by said Evans with said Turner as his surety, which subjected the said Evans also to the like decree. And the court is further of opinion that the appellant, by his agency in the removal and sale of said slave, would have subjected himself also to the like decree, if he had known at the time of the claim of said Davis, and had confederated with said Turner to defeat the same; but that such knowledge and confederacy have not been established by the evidence in the cause. The court is therefore of opinion that the said decree is erroneous in giving any relief against die appellant, and is moreover erroneous in the measure of relief given against said Turner and the administrator of said Evans, inasmuch as the same should have been not for the value of the slave Esther, but for the value of said Davis’s reversionary estate in her, which ought to have been ascertained by reference to a commissioner. It is therefore ordered and decreed that the said decree of the circuit court be reversed with costs. And this court proceeding to render such decree in regard to the appellant as ought to have been rendered by the said circuit court, it is further ordered and decreed that the fifth amended bill of the appellee be dismissed as to *'the appellant, but without costs. And the cause is remanded to the said circuit court, to be there further proceeded in, as regards the other defendants, according to the principles above declared. 
      The statutes of Virginia hearing upon the case are in 1 R. C. of 1819, ch. 111, § 48, 49, p. 431, 2. They are as follows:
     
      
       48. “If any person or persons possessed of a life estate in any slave or slaves shall remove, or voluntarily permit to he removed, out of this commonwealth, such slave or slaves, or any of their increase, without the consent of him or her in reversion or remainder, such person or persons shall forfeit even' such slave or slaves so removed, and the full value thereof, unto the person or persons that shall have the reversion or remainder thereof ; any law, custom or usage to the contrary notwithstanding.” — Note in Original Edition.
     
      
       49. “If any female possessed as aforesaid shall he married to a husband who shall remove, or voluntarily permit to he removed, out of this commonwealth, any such slave or slaves, or any of their increase, without the consent of him or her in reversion or remainder, in such case it shall he lawful for him or her in reversion or remainder to sue for, recover and possess such slave or slaves so removed, for and during the life of the said husband ; who shall moreover he liable to the action •of the person or persons entitled to the reversion or remainder thereof, for the full value of the slave or slaves so removed.” — Note in Original Edition.
     