the debt claimed," &c. and the plaintiff brought no suit, then this action is not maintainabię.

This court conceives that the circuit court ought not to have given this opinion. Had Richard Brooke possessed property before the making of the note, and not afterwards, the opinion, in the terms in which it was required, would have been a direction to find their verdict for the defendant. So if Richard Brooke had been in possession of property for a single day, and had the next day become insolvent, the court was asked to say that, in such a case, the endorsor could only be made liable by suit against the maker. Such a direction, in the opinion of this court. would have been improper.

The second branch of the opinion the circuit court was required to give, is in these words: "Or if the jury shall be satisfied that the said plaintiff and the said Brooke have, since the said note became due, both lived in the county of Fairfax, in Virginia, and have continued to reside in the county of Fairfax until the beginning of the present suit, and the plaintiff hath not brought suit against the said Brooke in Virginia, then the defendant is not liable in this action."

If the plaintiff had sued Brooke elsewhere than in Virginia, or if Brooke had become insolvent previous to the making of the note, and had continued to be so, the opinion of the court, if given as prayed, would have been, that, still, a suit against the maker of the note was necessary to give a right of action against the endorsor

This is not understood to be the law of Virginia. It is understood to be the law, that the maker of the note must be sued, if he is solvent, but his insolvency uispenses with the necessity of suing him. It is not known that any decision of the state courts requires that this insolvency should be proved by taking the oath of an insolvent debtor, nor is it believed that this is the only admissible testimony of

Vol. V.

VIOLETT

V.

PATTON.

the fact of insolvency. Other testimony may be admitted. It would therefore have been proper to leave it to the jury to determine whether it was, at any time, in the power of the plaintiff to have made the money due on this note, or any part of it, from the maker by suit; and their verdict ought to have been regulated by the testimony in this respect

This opinion was not required.

This court is of opinion that there is no error, and that the judgment is to be affirmed with costs.

PIERCE v. TURNER.

The act of as

ERROR to the circuit court of the district of sembly of Vir- Columbia, sitting at Alexandria, in an action of debt ginia, which brought by Pierce against Rebecca Turner, charging corded deeds her as executrix in her own wrong of her late huslitors, and sub band, Charles Turner, deceased.

void as to cre

sequent pur.

chusers, means

creditors of,

Upon the issue of never executrix, the jury and subsequent found a special verdict, stating in substance the following case:

purchasers

from, the grun

tor.

A marriage settlement,

On the 14th of February, 1798, the defendant, by conveying the the name of Rebecca Kenner, being a feme sole, wife's land aud and seised and possessed, in her own right, of cerslaves to test-tain land and slaves, conveyed the same by deed, in ees, by a deed, to which the consideration of an intended marriage between herhusband was a self and Charles Turner, to trustees, to be held in party,although not recorded, trust for the use of herself until the marriage protects the should be solemnized, and from and after the soproperty from the creditors lemnization thereof to the use of herself and the of the hus- said Charles Turner, and the longest liver of them, and from and after their deaths, to the use of her heirs, The deed purports to be an indenture tripartite, in which Charles Turner is named as the second party, and as such he duly executes the deed;

band.

he does not, however, make any settlement of his own property upon his intended wife, but appears to be made a party merely for the purpose of testifying his privity and consent.

About four months after the execution of the deed, two of the three subscribing witnesses proved the execution before the county court of Fairfax, where all the parties inhabited. That probat was duly certified by the clerk under direction of the court. But the deed purporting to be a conveyance of land as well as slaves, and one of the subscribing witnesses, soon after the execution of it, having left the United States, and never having returned, the deed was not fully admitted to record, but remained in the clerk's office under the certificate of probat before stated, until the 1st of September, 1807, when the county court, upon proof of the absence of the third subscribing witness, and of his hand-writing, admitted the deed to record; all which is certified by the recording clerk, and found by the special verdict.

Soon after the execution of the deed, and in the same month, (February, 1798,) the contemplated marriage took place; whereupon the trustees put Turner into possession of the land and slaves, and he continued possessed of the same, with the knowledge and approbation of the trustees, till his death, which happened some time in the month of December, 1802, less than five years from the time of his marriage, and of his first coming into possession of the property.

Turner and his wife resided in Alexandria from the time of their marriage till the autumn of 1801, when they removed into the county of Northumberland, in the state of Virginia, taking the slaves with them by consent of the trustees; they continued to reside there, upon the land in the deed mentioned, on which the slaves were kept, till his death, in December, 1802. Upon his death she remained in possession both of the land and slaves, claiming exclusive property in the same, and to

PIERCE

V.

TURNER.

PIERCE bold possession of the same with the privity and TURNER. approbation of the trustees, whose privity and approbation are expressly found. In the autumn of 1803, the defendant removed back to Alexandria, in the district of Columbia, and brought with her a part of the slaves, (of value sufficient to satisfy the plaintiff's debt,) and has ever since resided in Alexandria, and there used the slaves so brought with her.

Three months after Turner's death, and seven months before the defendant removed from Northumberland back to Alexandria, the county court of Northumberland, finding that no person would apply for administration of the intestate's estate, committed the administration to the sheriff of the county, under a particular statute of Virginia. The sheriff returned an inventory of assets apprized at 4 631 dollars and 72 cents, which was distributed in due proportions among the creditors, under the special direction of the court. But the plaintiff put in no claim, and, not being on the list of creditors reported to the court, received no part of the sum so distributed. None of the slaves conveyed by the said deed were meddled with in the course of the sheriff's administration, nor included in the inventory and appraisement, although they were all then in the county, and some of them have continued in the county ever since Turner's death. It is found that Turner died insolvent, unless the said slaves are charged with his debts.

By the 4th section of the act of assembly of Virginia, entitled "An act for regulating conveyances," it is enacted, "that all conveyances of lands," "and all deeds of settlement upon marriage wherein either lands, slaves, money or other personal thing shall be settled," "and all deeds of trust and mortgages whatsoever," "shall be void as to all creditors and subsequent purchasers. unless they shall be acknowledged, or proved and recorded according to the directions of this act; but the same, as between the parties and their heirs, shall nevertheless be valid and binding."

The deed in question never was proved or acknowledged and recorded according to the directions of the act; and the question was, whether it was void as to the creditors of the husband, so as to charge the widow as his executrix in her own wrong.

The opinion of the court below was, that the deed was good and effectual to prevent the property vesting in the husband by virtue of the marriage, and consequently was never liable for his debts. That at the time of the marriage no legal estate in the slaves was vested in the wife, and therefore nothing was transferred to the husband by the marriage.

E. J. Lee, for the plaintiff in error.

By marriage all the personal estate of the wife becomes the absolute property of the husband. The operation of this principle can only be prevented by pursuing strictly the mode pointed out by law. This deed wants those legal solemnities which the law requires to make it valid against creditors. The plaintiff is a creditor; the deed is, therefore, not valid against him. The word creditor, in the act of assembly, means not only the creditors of the grantor, but the creditors of every person whose debts could have been legally satisfied out of the property, if such deed had not been made. If the word is to have the limited construction contended for on the other side, and the deed be void only as to her creditors, and as to subsequent purchasers from her, the statute becomes nugatory; because after marriage she has no creditors, and cannot sell and convey. Her creditors have become his creditors; her debts have become his debts. If the deed be void as to her creditors, it must be void as to his creditors. If she can neither sell nor have creditors, the act must apply to his creditors, or it will be idle and unavailing.

If the husband had sold these slaves to persons ignorant of the deed, the sale would have been valid.

PIERCE

V.

TURNER.