That the Act of 1829 (sec. 10) confers a valuable right or franchise on an existing corporation, to wit, the Fauquier and Alexandria Turnpike Company, duly incorporated by the act of Virginia.

This grant of the right to raise the sum of $30,000 is unconditional, and without limitation of time, requiring only the action of the commissioners; and the law contemplated on its face the raising of the money by lotteries, from time to time, and confers the power on the commissioners to make just such contracts as they think proper. The Legislature, in its sovereignty, could do this. 4 Gill & Johns.

150.

The State had no power to revoke this grant

because

1. It is presumed to be accepted by the turnpike company, without proof. 12 Wheat. 70-72: Ange 70-72; Angell & Ames on Corp. 89, etc.

2. Special verdict shows, that the law passed on petition of the president and directors; and, moreover, that, relying on the terms of this grant, the company did, prior to the 25th of February, 1834, enter into contracts, and incur debts, to be paid out of this lottery. This vested an interest in the corporation. 11 Gill & Johns. 504.

3. The state is as much bound by her contracts, express or implied, as an individual. 4 Peters, 560; 4 Gill & Johns. 128; 9 Gill &

Mr. Justice Grier delivered the opinion of the court:

It might admit of some doubt whether the Act of 1829 grants any franchise, or constitutes any contract, either with the commissioners therein appointed, or with the turnpike corporation. It imposes certain duties on each. The commissioners are required to use the license thus given, not for their own benefit, but for a public purpose. The money procured by the proposed lotteries is to be paid over to the Fauquier and Alexandria Turnpike Road Company, to be by them expended "in the improvement and repair of the road."

It is true, that the corporation might receive greater benefits from the repair of the road than the other citizens of the State; but the act imposed no duty on them as a previous consideration. They are not required to make any repairs till they receive the money.

But assuming that this would be too narrow a construction of this act, and that it conferred a privilege or benefit on the corporation in the nature of a franchise or irrevocable contract, yet in its very nature it could not be considered illimitable as to time. On the contrary, the object for which the license was granted called for immediate action. "Three miles" of a great public thoroughfare are represented to be out of repair, and the company without immediate means to effect it. The sum to be raised

of 1829 is a contract, see, also, 9 Cranch, 49; 2 Hayw. 310; 1 Murphy, 58; 11 Peters; 9 Gill &

Johns. 408.

4. The Act of 25th February, 1834, impairs the rights vested under the previous contract. The second proviso in this act excepts all contracts thereafter made, by virtue of any existing law for the drawing of lotteries, not extending beyond the 1st of January, 1840. See Green v. Biddle, 8 Wheaton, 1; 3 Wash. 319.

Yet if the contract under which this lottery was drawn be duly authorized, in all its terms and duration, by the Act of 1829, then the Act of 1834 has attempted to limit and curtail the previous grant, and injuriously to abridge it.

But the Act of 11th March, 1834, appointed

two commissioners in place of those who had resigned, and therefore there could be no drawing until the vacancies were filled under the Act of 1829.

Hence the law of 11th March, 1834, which 167*] is subsequent *to the penal law of 25th February, 1834, appoints two commissioners to fill the vacancies and to carry the law of 1829 into effect; thus furnishing a legislative declaration, that the Act of 1829 was to be carried into effect. But the law of February, 1834, only allows time to carry the Act of 1829, into effect until the first day of January, 1837.

5. The contract was made in a reasonable

time after the Act of 11th March, 1834, and was duly authorized by law in all its terms and duration; and the penalty sought to be enforced under the Act of February, 1834 (which directly prohibits all lotteries after the 1st of January, 1840), is not to be enforced, because it would violate the antecedent contract, made by the State in 1829.

plication demanding immediate attention, the time within which the license is given cannot claim to be unlimited. And yet the commissioners and corporation have suffered eleven years to pass, before any attempt is made to perform the duty imposed on them, or avail themselves of the license or franchise conferred, and now claim a further term of twenty years, to raise the money and repair the road.

*When the Legislature of Virginia [*168 passed this most salutary act for the suppression of lotteries, they, with commendable caution, protected all vested rights. And notwithstanding the neglect to perform the duties imposed by the Act of 1829, the Act of 1834 does not revoke the grant or annul the license, but limits the time to six years within which the duties must be performed and the privilege exercised.

It has been often decided by this court, that the prohibition of the Constitution now under consideration, by which State Legislatures are restrained from passing any "law impairing the obligation of contracts," does not extend to all legislation about contracts. They may pass recording acts, by which an elder grantee shall be postponed to a younger, if the prior deed be not recorded within a limited time; and this, whether the deed be dated before or after the act. Acts of limitation also, giving peace and confidence to the actual possessor of the soil, and refusing the aid of courts of justice in the enforcement of contracts, after a certain time, have received the sanction of this court. Such acts may be said to effect a complete devesture, or even transfer, of right, yet, as reasons of sound policy have led to their adoption, their validity cannot be questioned.

What is the act under consideration, but a limitation of the time within which a certain and purpose, may be exercised? If reasons of sound policy justify legislative interference with contracts of individuals, how much more will it justify the limitation of licenses so injurious to public morals.

The suppression of nuisances injurious to public health or morality is among the most important duties of government. Experience has shown that the common forms of gambling are comparatively innocuous when placed in contrast with the widespread pestilence of lotteries. The former are confined to a few persons and places, but the latter infests the whole community: it enters every dwelling; it reaches every class; it preys upon the hard earnings of the poor; it plunders the ignorant and simple.

It is a principle of the common law, that the king cannot sanction a nuisance. But, without asserting that a legislative license to raise money by lotteries cannot have the sanctity of a franchise or contract in its nature irrevocable, it cannot be denied that the limitation of such a license as the present is as much demanded by public policy, as other acts of limitation which have received the sanction of this court.

There is, also, another view of this case, 169*] which concludes *the plaintiff in error from the benefit of a defense under this clause of the Constitution, even if it were tenable. The Act of 1829 had become obsolete by non-user. Without further legislation, the license granted by it could not be exercised. The plaintiff in error cannot claim a right to sell lottery tickets without invoking the aid of the Act of 11th March, 1834, passed a few days after the "act suppressing lotteries." The courts of Virginia have very properly decided, that "this dormant right to draw the lottery which was revived by the Act of March, 1834, must be taken as subordinate to, and limited by, the act of the 25th of the previous month; that those statutes must be taken in pari materia, and receive the same construction as if embodied in one act; that there is nothing repugnant in the provisions of the one to those of the other, where the first is taken as limiting the time within which the right under the second is to be exercised."

istrator of William J. McClanahan, Deceased, Complainant and Appellant,

V.

RICHARD DAVIS, William D. Nutt, Administrator of George Coleman, Deceased, Elizabeth Blacklock, the Widow and Relict of Nicholas F. Blacklock, Deceased, Nicholas F. Blacklock the younger, Jane Lowe, late Jane Blacklock, David Lowe, her Husband, and Elizabeth Fox, late Elizabeth Blacklock, the said Nicholas F. the younger, Jane, and Elizabeth being the Children of the late Nicholas F. Blacklock the elder, Deceased, Defendants.

Virginia law-husband's right in chattels of deceased wife after life estate of third person -reducing to possession-Quære as to necessity of administration.

The assent of an executor must be obtained be

fore a legatee can take possession of a legacy. But assent may be implied, and an assent to the interest of the tenant for life in a chattel inures to vest the interest of the remainder. Therefore, where a bill averred the possession of the subject

of the legacy by the life tenant in pursuance of the bequest in the will, and this bill was demurred to, it is sufficient to raise a presumption that the possession was taken with the assent of the execu

tor.

By the laws of Virginia, where there is a tenancy for life in a slave, with remainder to the wife of another person, the interest of the husband in the wife's remainder is placed upon the footing of an interest in a chose in action. If, therefore, he survives the wife. he may reduce the property into possession at the expiration of the estate; but he be dead at such expiration, the property survives to the wife, and on her death passes to her legal representative as part of her assets.

Quære, whether the husband or his personal representative is not bound to administer upon the wife's estate. before bringing suit to recover property so situated in the State of Virginia. Where there was no direct or positive averment that the defendants, or either of them, had any interest in the property claimed, or that it was their possession, no ground of relief against those parties was shown, and the right to a discovery as incidental thereto, failed also.

was appeal from the Circuit Court

This

courts of Virginia is not only just and correct, but is conclusive on this court and on the case, as it estops the plaintiff in error from averring against the constitutionality of the limitation under which he claims his privilege.

The judgment of the General Court of Virginia is therefore affirmed, with costs.

Order.

This cause came on to be heard on the transcript of the record from the General Court of Virginia, and was argued by counsel; on consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said General Court of Virginia in this cause be, and the same is hereby affirmed, with

of

Columbia, holden in and for the County of Alexandria, and sitting as a court of equity.

The object of the bill was to reclaim the possession of certain slaves, and to compel an account and compensation for the value of certain other slaves, all of which were alleged to be the property of the complainant and appellant, in his character of administrator.

The facts were these:

In 1797, one Elizabeth Edwards, an inhabitant of Northumberland County and State of Virginia, by her last will and testament, bequeathed to her daughter, Sarah Nutt, a certain negro girl named Lavinia, a slave for life, with her future increase, for and during the life of

Fauntleroy Nutt, the granddaughter of the testatrix.

In the same year, viz., 1797, the testatrix died, and in June, 1797, the will was duly proved at the court of monthly session, and letters testamentary granted to Griffin Edwards, one of the executors named in the will.

171*] *At some period of time after the death of the testatrix, the record did not show when, Sarah Nutt, the daughter, removed the girl Lavinia from the County of Northumberland to Alexandria, in the District of Columbia, and there sold her to one Nicholas F. Blacklock. After such sale, Lavinia had a numerous family of children and grandchildren.

Elizabeth Fauntleroy Nutt, the granddaughter of the testatrix, intermarried with William J. McClanahan, and died, leaving one child, an infant, who survived its mother but a short time. William J. McClanahan also died after his wife and child, but before Sarah Nutt, without having reduced any of the said slaves into his possession. After his death, the complainant administered upon his estate. The order in which the parties died was according to the following numbers:

Elizabeth Edwards (1)

Sarah Nutt (5)

Wm. J. McClanahan (4) = Elizabeth Faunt [Nutt (2)

Daughter (3)

Sarah Nutt, the last survivor of the five, died in 1840, and after her death Thomas H. McClanahan took out letters of administration upon the personal estate of William J. McClanahan, and also upon the personal estate of Elizabeth F. McClanahan, his wife; both letters being taken out from Northumberland County Court in the State of Virginia.

In April, 1845, the administrator filed his bill against all the representatives of Nicholas F. Blacklock, who was dead; and also against all those persons who were alleged to have purchased any of the slaves. The bill recited the above facts and averred, that, after the decease of the tenant for life, the rightful ownership of the slaves passed to William J. McClanahan, notwithstanding he never had the slaves aforesaid in his possession, by virtue of his inter

wife and infant daughter, and only child, by the said Elizabeth, his aforesaid wife, according to the form and effect of the statute in such case made and provided, entitled "An Act to reduce into one the several acts directing the course of descents," passed the 8th of December, 1792. The said life estate having ceased and determined, as your orator avers, on the -, 1840, by the death of

day of

the said Sarah Nutt, and that your orator, as the administrator of the said William J. МеClanahan, deceased, now has good right and title to sue for the recovery and possession of the said Lavinia, and her children and grandchildren, no right of action having accrued until after the death of the said Sarah Nutt.

*The bill then prayed for a discovery [*172 of the number of slaves, in whose possession they were, and for an account of the value of their services, etc., etc.

In October, 1845, the defendants filed the following demurrer to the bill:

"These defendants, respectfully, by protestation, not confessing or acknowledging all or any of the matters and things in the said complainant's bill to be true, in such manner as the same are therein set forth and alleged, do demur thereto, and for cause of demurrer show

"1st. That the said complainant hath not, in and by said bill, made or stated such a case as doth or ought to entitle him to any such discovery or relief as is sought and prayed for, from and against these defendants.

"2d. That the said complainant hath not, as appears by his said bill, made out any title to the relief thereby prayed.

"3d. That the said complainant, by his own showing in said bill, is not entitled to the discovery and relief therein prayed, but is barred therefrom by lapse of time, and the statute of limitation in such cases made and provided. Wherefore, and for divers other errors and imperfections, these defendants humbly demand the judgment of this honorable court whether they shall be compelled to make any further or other answer to the said bill, or any of the matters and things therein contained, and pray hence to be dismissed with their reasonable costs in this behalf expended.

"Francis L. Smith,"

"Solicitor for Defendants."

i

slaves, and not to legacies. O. R. Code, p. 191, sec. 44.

Mr. Francis L. Smith, for the defendants, contended, under the first ground of demurrer, that the plaintiff had not showed himself to be entitled to any relief.

The allegations of the bill are vague and indefinite throughout. There is no distinct and express averment that the defendants, or either of them, claim or are possessed of the negro woman Lavinia, or her offspring.

The nearest approach to an express charge is in reference to Betsey, but the bill does not expressly aver that she is either claimed or possessed by Davis or Nutt; it is said that she and the children whom she is said to have had, since her sale to Coleman, are in possession of either the one or the other.

There is still more uncertainty as to the other slaves; even Lavinia is not averred to be claimed by either of the defendants, or to be in their possession. But she and her daughter Maria are charged as hiring themselves about the town of Alexandria, and as accounting for their hires with the family of Nicholas F. Blacklock, deceased.

The bill is too loose and uncertain to require any specific answer. The allegations should have been direct and positive, both as to facts and parties. Story's Eq. Pleading, ed. 1840, secs. 244 to 251, inclusive; also sec. 510.

175*] *The case made by the bill should have traced the plaintiff's title, and shown his right to recover, with as much certainty as to the substantial facts, as pleadings at law. East India Co. v. Henchman, 1 Ves. Jun. 287; Mitf. Pl. 150; Ryves v. Ryves, 3 Ves. 343; McGregor v. East India Co. 2 Simons, 432; Hardman v. Elames, 5 Ib. 640; S. C. 2 M. & K. 732; Walburn v. Ingsby, 1 M. & K. 177; Jerrard v. Saunders, 2 Ves. Jun. 186; Mechanics' Bank v. Levy, 3 Paige, 606.

There must be an actual, not a pretended, necessity for a discovery, presented by a full statement of the case, and not by general averments. Meze v. Mayse, 6 Rand. 660; Webster v. Couch, 6 Rand. 524; Russell v. Clarke's Executor, 7 Cranch, 69, 89.

A defect in the charging part of a bill cannot be supplied by a subsequent interrogatory. Parker v. Carter, 4 Munf. 273. Whilst it is admitted, on behalf of the defendants, that there may be cases in which a court of equity

The plaintiff's remedy was in a court of common law. Armstrong v. Huntons, 1 Rob. Va. 323; Wright v. Wright, 2 Litt. Ky. 8; Bass v. Bass, 4 Hen. & Mun. 478; Joyce v. Grinnals, 2 Richardson's Eq. 259; Parks v. Rucker, 5 Leigh, 149.

This is an effort to recover the slave Lavinia and her increase from bona fide purchasers, holding under Blacklock; the parties in remainder, having failed to give notice of their claim to the slave Lavinia or her increase, which would operate a fraud on such purchasers.

As to the general policy of the laws of Virginia, in protecting bona fide purchasers of personal property, without notice, see Lane v. Mason, 5 Leigh, 520.

The second cause of demurrer is, that the plaintiff has not made out any title in himself to the discovery and relief prayed.

Every preliminary act necessary to make the plaintiff's title complete should be averred in the bill, and the mere allegation that his title is complete is not sufficient. 1 Daniell's Ch. Prac. mar. page 422, and cases there cited.

Before the title to the slave Lavinia could, under the will of Elizabeth Edwards, be complete in Sarah Nutt or Elizabeth Fauntleroy Nutt, it is indispensable that the assent of the executors to the legacy should have been obtained, and so alleged in the bill. There is no such averment.

See 2 Lomax on Executors and Administrators, sec. 3, pp. 128 and 129, and cases there referred to, declaring that a legatee of a slave cannot, if the assent of the executor has not been obtained *to the legacy, maintain [*176 an action of detinue against one who unlawfully holds possession of the slave; nor will the assent in such case be dispensed with, though no one has taken out probate or letters of administration. Sutton v. Crain, 10 Gill & Johns. 458; Woodyard v. Threlkeld, 1 Marsh. Ky. 10, 11; Hasirton v. Hall, 3 Call, top page 188; side page 219.

But is the title to the slaves in the plaintiff? He must recover, if at all, either because William J. McClanahan, by virtue of his marital rights, during the coverture reduced the slaves into possession, or from his having obtained letters of administration on his wife's estate, not being compelled to make distribution. The bill expressly negatives the first, and is silent as to the second ground. There being no aver

Beecker v. Beecker, 7 Johns. 99; Willard Eq. Jur. 500, 501; Atkins v. Hill, Cowp. 284; Hawkes v. Saunders, Cowp. 289; 2 Lev. 3; Vent. 120; Davie and Reyner, Sel. Cas. Ev. 59; 11 Mod. 91, pl. 15; M'Neil v. Quince, 2 Hayw. 153; Goodwin v. Chaffee, 4 Conn. 163; Doe v. Guy, 4 Esp. 154; 3 East, 120, and cases cited; Williams v. Lee, 3 Atk. 223; 6 Bac. Abr. 335.

An executor who had paid specific legatees, dis

Dayton's Sur. 2d ed. 412; Wms. Ex'rs, 1176.

A legatee has no authority to take possession of his legacy without the executor's assent, although the testator, by his will, expressly direct that he shall do so; for if this were permitted, a testator might appoint all his effects to be thus taken, in fraud of his creditors. Dayton's Sur. 2d ed. 411, 412; Wms. Ex'rs. 1176.

Even where the testator by his will discharges sent, for same reason. Idem.

and a consequent overpayment to legatees cannot maintain an action at law to recover back such overpayment from a particular legatee; a court of equity is the proper tribunal. Somerville v. Somerville, 3 Gill (Md.) 276; Johnson v. Johnson, 3 Bos. & Pull. 179; Sele v. Guy, 3 East, 123: Story Eq. sec, 534.