
    *Hardin’s Ex’ors v. Hardin.
    March, 1831.
    Chancery Jurisdiction — Title to Slaves — Discovery.— BUI in chancery, by plaintiff against the executors of his deceased father and a purchaser under them, claiming slaves under parol gift of the father in his lifetime, accompanied by delivery of possession, and praying discovery of the increase of the slaves, of which bill shews plaintiff was not ignorant, and a decree for the slaves, and their increase before suit brought as well as pendente lite, and an account of profits: Hkld, the court of chancery has no jurisdiction to entertain such a bill.
    Berry Hardin exhibited a bill in the supe-riour court of chancery of Staunton, against Benjamin Hardin and Nathaniel Handcraft executors of Isaac Hardin deceased, and Samuel Bailey ; setting forth, that Isaac Harden, who was the father of the plaintiff, in his lifetime, made a parol gift to him of two slaves, Anderson a boy, and Mourning a woman, and delivered him possession thereof, which he held for two years, and till the death of his father the donor : that, after the death of the donor, his executors claimed these slaves and the increase of the female, then three in number, as part of the testator’s estate, (to be sold, and the proceeds divided among his children, according to his will and codicil) inventoried them as part of the testator’s estate, and obtained possession of them : that they offered the slaves for sale at public auction, at which the plaintiff asserted his claim to them and forbad the sale, in which the executors persisted notwithstanding : that at the sale, the plaintiff bad for the slave Anderson, but he was sold to the defendant Bailey, a higher bidder, for 580 dollars, on a credit of twelve months : that the plaintiff also bad at the sale, for the woman Mourning and her three children ; and they were cried out to him at the price of 900 dollars ; but, he being unable to give security for the purchase money, according to the terms of the sale, it was agreed between him and the executor Benjamin Hardin, that Benjamin should take the woman and her children at the same price, and if the plaintiff could make good his claim to them under the gift of his father, they should be surrendered to him ; and accordingly ^Benjamin took and had ever since held the possession thereof ; that the plaintiff was advised, that his title to the slaves in question, under the gift of his father, was valid, and that his proper and most effectual remedy to recover them and their increase and hires and profits, was in the court of chancery ; for that, in a court of law, several suits might be necessary, the recovery of the specific property might be avoided by the removal of it, the increase of the females pendente lite could only be recovered by a subsequent action, and some difficulty might be opposed to the recovery of the slave Anderson at law, in consequence of the plaintiff’s public bidding for him at the sale: therefore, the bill prayed, that the defendant Bailey should be restrained from paying the purchase money of the slave Anderson, to the defendants the executors of Isaac Hardin, and should be decreed to deliver that slave and account for the profits thereof to the plaintiff, or to pay him the purchase money he had bidden for him with interest; and that the defendant Benjamin Hardin should declare on oath, how many children the woman Mourning now had, their names and sexes, and should be decreed to deliver them, and to account for and pay the profits thereof, to the plaintiff ; and general relief.
    The executors of Isaac Hardin, in their answer, denied the alleged gift of the slaves in question, by their testator to the plaintiff ; and they said, he well knew the number, names and sexes, of the increase of the woman Mourning, of which he pretended to want a discovery; but, however, they gave a list of them. And the defendant Bailey answered, that he had bought the slave ,Anderson at a public sale, without notice of the plaintiff’s claim, at which sale the plaintiff was also a bidder and his competitor ; and that he had actually paid the purchase money to the executors before the suit was brought; and he insisted, that he had a right, at all events, to hold the property.
    There was a volume of depositions touching the questions of fact in issue. The chancellor thought the parol gift of the slaves to the plaintiff by his father, was satisfactorily *proved j and that the plaintiff was entitled to recover of the defendant Bailey, the purchase money of the slave Anderson, if he had not already paid it to the executors, and if he had, he was entitled to recover the same of them; and that he was entitled to recover of the defendant Benjamin Hardin, the woman Mourning and her increase and the profits thereof : therefore, he directed an account to ascertain whether Bailey had paid the purchase money of Anderson to the executors, or how much thereof he had paid them ; and an account of the profits of Mourning, and her children. From which decree, the defendants the executors of Isaac Hardin, appealed to this court.
    The cause was argued here, by Stanard for the appellant, and Johnson for the appellee.
    In this court, it turned chiefly on the question of jurisdiction, though it was argued on the ■merits also; and Johnson endeavoured to maintain the jurisdiction of the court of chancery, upon the grounds suggested in the bill.
    
      
      Bill of Discovery — Facts Known to Plaintiff.— in Armstrong v. Huntons, 1 Rob. 327, it is said: “It is perfectly clear as a general rule, that in a bill to substitute an equitable Cor a legal forum, a prayer for a discovery, without any avermentshow-ingits materiality or necessity, is naught. If this courthas tolerated adeparture from this rule, in regard to slave property (Gregory's Adm'r v. Marks's Adm'r. 1 Rand. 355), it has been where the necessity for a discovery was supposed to be incidental, at least prima facie., to the nature of the demand: as where the suit is to recover a stock of slaves, after a considerable lapse of time, and there has been such an increase as would raise a. fair presumption that the plaintiffis ignorant of their names, ages, a.nd residence. But even under such circumstances, if it may be inferred from the statements in the bill, or the evidence in the cause, that no such difficulty in point of fact exists, a court of equity will not take cognizance of the case, unless there be some other ground for the exercise of its equitable j urisdiction. Hardin's Ex'ors v. Hardin, 2 Leigh 572. ”
      To the same efiect, see the principal case cited in Hale v. Clarkson, 23 Gratt. 47. Jn each of these cases.it was held that if, in a bill in equity to recover slaves, the only ground of equity jurisdiction be a call fora discovery of facts which the evidence shows the plaintiff knew at the time, or had the means of knowing, the bill should be dismissed with costs.
      See further, monographic note on “Bills of Discovery” appended to Lyons v. Miller, 6 Gratt. 427.
    
   GREEN, J.

I have carefully examined the fifty depositions filed in this case, taken at an expense of more than a dollar each ; and throwing out all the evidence of the appellants, and the circumstances which repel the claim of the appellee to the slaves in question, I do not think there is a scintilla of proof in the record, that they ever came into his possession, or remained with him, as a gift from his father, for one moment of time. I refrain from the discussion of this mass of evidence, because it is unfit for the decision of a court of equity, if it were doubtful, as perhaps it ought to be considered, from the circumstance that the court below thought the evidence sufficient to support the claim. A jury is a more competent tribunal to determine this question with the witnesses before it, than either this court or the chancellor ; and might have determined it at an expense of one fifth or one tenth of the cost of this proceeding. Nor was there a shadow of ground upon which *a court of equity could entertain this double suit, of detinue as to some of the slaves, and trover as to one of them, against different parties. There was no difficulty in prosecuting suits at law ; no uncertainty as to the names, ages or sexes of the increase of the female slave ; no discovery necessary; no difficulty as to a fair adjustment of damages ; and the rights of the parties would have been settled not only a't a tythe of the expense, but in one tenth of the time, which this suit has produced and consumed.

CABELL, J.

I am also decidedly of opinion, that the evidence in this case, does not establish gift of the slaves contended for by the appellee; and that, even if that were a doubtful question, there was no ground for coming into a court of equity. The plaintiff could not, from the facts stated in the bill, have been ignorant of the names, ages or sexes of the slaves in controversy. The question of title, depending exclusively on parol testimony, was peculiarly proper for a jury ; nor was there any other question in the cause, which could not have been decided as correctly by a jury, as by a commissioner.

The other judges concurred.

Decree reversed, and a bill dismissed with costs.  