
    *Lewis’s Administrator v. Wyatt.
    December, 1823.
    Chancery Practice — Injunction—Judgment in Trespass. — A sheriff levies a fieri lacias upon property in possession of the defendant. An action of trespass is then brought against the sheriff, by the executors of the defendant’s testator, on the ground, that the legal title to the property is in them, and not in the defendant, as they held the property under the will of their testator, and had never given their assent to the legacy to the defendant. who was residuary legatee of their testator. The jury give vindictive damages against the sheriff. In such case, a Court of Equity will injoin the judgment in trespass, if it appears that the executors of the testator had only a legal title, without any beneficial interest in the property, the debts and legacies of their testator having been all paid. It would be against conscience, that the debtor should pay his debt, and at the same time recover damages against his creditor, on the distinction, that he held only the beneficial interest, and not the legal title, to the property taken in execution.
    John Ellis and Mary his wife, having obtained a decree in Chancery against John Lewis, executor of Warner Lewis, the younger, and others, for the sum of 7261. 8s. with interest at the rate of 5 per cent, on 6991. 3s. 7d. from the 1st of January, 1801, sued out a writ of fieri facias to enforce the decree. The said execution was put into the hands of a certain Samuel Anderson, deputy of Peter Wyatt, sheriff of the county of Gloucester. The said Anderson levied the execution upon sundry slaves, and other personal property, found at Warner Hall, the place of residence of the said Warner Lewis, the younger, during his life; all which property was then in the possession of the said John Lewis, his executor. The property, thus taken, was duly advertised according to law. When the day of sale arrived, and the said Anderson was about to sell the same, he was forbidden to do so, by Philip L. Grymes, and others, surviving executors of Warner Lewis, the elder, deceased, the father of the said Warner Lewis, the younger, deceased. The executors of the elder Warner Lewi 3 claimed the said property, as being part of the estate of their testator, and belonging to them, as executors; they never having divested themselves of their rights, by any assent or surrender of the property. *In consequence of this interference, the sale was stopped, until John Ellis executed a bond of indemnification to Peter Wyatt, the high sheriff. The said Anderson then proceeded with the sale, and completed it. Soon after, an action of trespass was instituted by Philip L. Grymes, and others, surviving executors of the said Warner Lewis, the elder, against Peter Wyatt, for the seizure and sale aforesaid; and a verdict was obtained for $5,000... The defendant then moved for a new trial, but the motion was over-ruled, and judgment rendered for the amount of the verdict.
    Peter Wyatt and John Ellis, filed a bill in the Chancery Court of Williamsburg, praying an injunction to the said judgment, stating the foregoing facts, and urging ’ easons why the said verdict ought not to be permitted to stand. These reasons, are: 1st. That the suit occupied the whole day, and until a late hour in the evening, when the jurors became impatient, and anxious about their horses, which were tied in different places about the court-house: that, under this influence, they determined to render a verdict for anv sum that might be named, and, therefore, agreed to the enormous verdict which was rendered. 2d. That, Warner Lewis, the younger, was residuary legatee of his father, and, therefore, entitled to this property, if no debts of his father required its use. In that case, the executors of Warner Lewis, the elder, would only have the legal estate, while Warner Lewis, the younger, would be entitled to' the usufructuary interest. In that case, it would be the duty of the executors of Warner Lewis, the elder, to deliver up to Warner Lewis, the younger, the legal as well as the equitable interest in the property; and a Court of Equity, considering that as done which ought to be done; will treat the case as if the whole estate, legal and equitable, was actually transferred to Warner Lewis, the younger. To prove that this property was not necessary to pay debts, they referred to the will of Warner -Lewis, the elder, by which it appears, that the testator *had provided specific funds for the payment of his own and his father’s debts, which he considered more than sufficient to discharge them, and were in fact abundant to satisfy every claim against the said Warner Lewis, the elder. To' prove this, they refer to the report of the commissioner, in the suit of Ellis and wife v. Grymes and others. By that report, it will appear, that the executors of Warner Lewis, the elder, actually collected from the funds set apart by their testator, for the payment of his debts, the sum of 7,9271. 2s. loyá, and only disbursed of that sum, in paying these debts, the sum of 5,74 4l. 15s. leaving a balance in the. hands of the executors, of 2,1821. 7s. 2$4. Warner Lewis, the elder, died in 1782. This report was made in 1807, fifteen years after his executors had had the management of his estate. Consequently, it is fair to infer, that when this report was made up, there were no remaining debts of the testator then unpaid. This being the case, it was the duty of the executors to have given up these subjects absolutely to the legatee, Warner Lewis, the younger, or to John Lewis, his executor. If this had been done, there would have been no doubt of the right of the complainant Wyatt, to levy the execution in his hands, upon the estate of Warner Lewis, the younger, or his executor. This view of the subject derives confirmation from the circumstance, that the executors are shewn to have assented to the legacy given by Warner Lewis, the elder, to his son Warner, on the 15th of February, 1792, immediately after the death of Warner Lewis, the elder, and took from him a refunding bond, without any surety. This property, Warner Lewis, the younger, retained in his hands, without any control of the executors, until the 4th day of October, 1797, when, having become involved himself, a pretended bill of sale of that date, conveying the property to them again, was executed by him. This bill of sale they never thought it worth while to record; but, permitted Warner Lewis, the younger, to retain the property thereby pretended to be conveyed, as *long as he lived, and even to convey it in trust, for the purpose of securing certain debts of his own, and to bequeath it by his will; and, after his death, they suffered John Lewis, his executor, to retain possession of it, never pretending to set up any adversary title of theirs, until a part of it was taken under the execution before-mentioned. For these and other reasons, the complainants prayed, that Mann Page, the sole surviving executor of Warner Lewis, the elder, deceased, might be made defendant; and that the judgment before-mentioned, for $5,000, might be perpetually injqined, &c.
    Annexed to the bill, ip the record of the action of trespass, with the verdict as above stated, and the bond of indemnification given to the executors of Warner Lewis, the elder, in the penalty of £10,000, in consideration of the said Warner Lewis, the younger, being permitted to hold and possess the slaves, furniture, and personal estate, of Warner Lewis, the elder, deceased. This bond is dated on the 15th of February, 1792, and is without any surety.
    Also, the paper termed the bill of sale, dated_ the 4th of October, 1797, executed by W’arner Lewis, the younger, under his seal, witnessing, that the said property is considered' by him as held in trust for the use, and liable to the disposal of his father’s executors, or the survivor of them, and that he has no title, interest or estate, in the said property, so as in any manner to dispose of it, without the license or assent- of the said executors. “It is to be understood,’ nevertheless, that this instrument is not intended to invalidate, or alter the validity or condition of the above-mentioned bond.”
    The report of the commissioners, mentioned in the bill, in the suit of Ellis and wife v. Grymes and others.
    The affidavits of six of the jurymen who tried the action of trespass, supporting the allegations of the bill, respecting the manner in which the verdict came to be rendered.
    The Chancellor granted the injunction.
    *Mann Page answered the bill, and stated, that the trial at law was a fair one, and the motion for a new trial over-ruled, after a full and fair argument at the bar, and a mature consideration by the Court; that the defendant appealed from this judgment, but the appeals were never prosecuted; that on the motion for a new trial, the defendant did not bring forward any of the jurors to establish the facts stated in the bill, that the sale was unfairly conducted; that the property seized was the property of the executors of Warner Lewis, the elder, and a most atrocious trespass was committed in taking it; that the jury did not give vindictive damages, as stated in the bill, but for the actual value of the property, according to the fairest estimate they could make; that it is true, a refunding bond was taken by Burwell Starke, one of the executors of Warner Lewis, the elder, without security; but, _it is also true, that Warner Lewis, the younger, afterwards surrendered the said property to Philip L. Grymes, one of the executors of Warner Lewis, senr., and it was delivered by the said Grymes to George Catlett, as his agent, and the instrument, called in the bill a pretended bill of sale, was executed by the said Warner, the younger, on the actual delivery of the property, as above stated; that the younger Warner Lewis explicitly admitted the title of his father’s executors, by a deed of trust executed by him, and recorded in the General Court; that he does not believe the statements of the plaintiffs, that vast sums remained in the hands of the executors, to pay the debts of their testator; and as to the accounts made up by the commissioner, they were ex parte as to himself, and he believes them to be so as to the other executors; that Ellis was not ignorant of the existence of the bill of sale aforesaid, as the defendant had shewn it to him, and he read it some days before the sale; and that the sale was forbidden by the defendant.
    The suit having abated by the death of Mann Page, the defendant, it was revived against John Lewis, administrator de bonis non of Warner Lewis, the elder.
    *It also abated as to John Ellis, by his death.
    'L'he cause being removed to the Richmond Chancery Court, the Chancellor decreed, that the injunction should be made perpetual.
    The defendant appealed to this Court.
    Nicholas and Leigh, for the appellant.
    Wickham, for the appellee.
    December 12.
    
      
      See generally, monographic note on “Injunctions” appended to Claytor v. Anthony, 15 Gratt. 518.
    
   JUDGE BROOKE,

delivered the opinion of the Court:

The Court being satisfied, that the beneficial interest in the property on which the execution was levied, was in Warner Lewis, the younger, as residuary legatee, though the naked legal estate may have been in the executors of Warner Lewis, the elder, by virtue of the bill of sale, as to which, after the judgment at law, the Court does not mean to decide; and, being also satisfied by the pleadings and proofs in the cause, that nothing was due by the estate of Warner Lewis, the elder, on account of debts or legacies, when the execution was levied; and that the damages found by the jury in the action of trespass, enured to the benefit of Warner Lewis, the younger; is of opinion, that it would be against conscience to permit the debtor to pay his debt, and at the same time, recover damages against his creditor, on the distinction, (as to which there was some doubt,) that he held a beneficial Interest only, and not a legal title in the property on which the execution, in behalf of his creditor, was levied. In coming to this conclusion, the Court deems it unnecessary to decide on the alledged misbehaviour of the jury, and for the reasons stated, is of opinion to affirm the decree. 
      
      .Ttjdoi8 Cabetj, absent from indisposition.
     