Lee v. Cooke , 1 Va. 306 ( 1794 )

The PRESIDENT.

The objection, that a suit will not lie against the executor upon this warranty, because the testator bound only himself and his heirs, is novel and unfounded. Without inquiring, whether the executor is bound by such a covenant in a conveyance of real estate, wherein he is not named, (which the court forbear, it being hinted at the bar, that there is another case in court where that is to be a question) it is admitted and clear, that in personal contracts, if the testator be bound, the executor is also bound, tho’ not named. This is such a personal contract; for in the sale of slaves, and in. all transfers of them by deed, or will, they have ever passed as chattels, and were only considered as real estate in the case of descents:

The objection, as to the want of notice of the pendency of the action of detinue, stands curiously upon the statement in the verdict. It would seem, that the plaintiff was ready to prove such notice to the executor, if it were necessary. The objection comes from the defendant, that such was improper, because the notice was not charged in the declaration.

The court however are of opinion, that it was not necessary to charge such notice in the declaration, nor to prove it. Every judgment of a court is presumed to be fair, ’till the contrary appears, and if there were any collusion between Morgan and Cooke in that action, it should have been pleaded, and proven on the part of the defendant.

Judgment affirmed.