ant is by no means positive as to the consent of either the executor or executrix, to this transaction. He says that he did it " after conferring with Mrs. Hare, and advising with Mr. Todd." But it does not follow that either of them assented because they were consulted, or that they did any thing more than express an opinion on the expediency of the measure. Neither of them had then qualified, nor was it at all certain that they would qualify, and the only person then empowered to act on this subject was Bryant himself; who, by virtue of the assignment which he held, possessed a power which legally survived his principal. Under this assignment it was that the negotiation was effected, and not by virtue of any power derived to him from the supposed assent of the executrix. Moreover, admitting the consent of the executrix, it is still doubtful whether any change of security did in fact take place. For, Hustin still remained the debtor-the articles of agreement substituted for the original bond bear the aspect of the purchase of a bond rather than the relinquishment of an advantage; the greater part, if not the whole balance, of the original debt was also payable in tobacco; and if the loss finally sustained proceeded, as is probable, from the insolvency of the factor, and not the reduced value of the commodity, this was by no means a necessary consequence of the change. Upon the whole, we are of opinion that the estate of Margaret Hare ought not in this mode, and upon the evidence now before us, to be charged with any part of Hustin's debt. For aught we know, Bryant may himself be liable for the whole,

1817.

Hunter

v.

Bryant.

by means of his mismanagement in the agency, or it may be in the power of the defendants to prove such acts of the executrix as may amount to a devastavit. On these points we do not mean to express an opinion or prejudice the rights of the appellants; we only mean to decide that the evidence in this case is not sufficient to sustain this discount.

After having settled these principles, the decree below must be reversed, and the case remanded for such further proceedings as are necessary to carry into effect the views of this court. But as only fivesixths of the land are represented in this court, we can decree for only five-sixths of the balance of the bond. After applying to it the residuary personal estate, for the balance the complainant will have to pursue his remedy against Mary Dickinson, unless the representatives shall have the prudence voluntarily to join in any sales of land that may be made under this

decree.

DECREE. Whereupon it is ordered, adjudged, and decreed, that the decree of the circuit court of Pennsylvania district be reversed and annulled. And this court decrees, 1st. That the complainant, Thomas Y. Bryant, is entitled to recover of the estate of Andrew Hare the sum of five thousand dollars, with interest theron, at six per centum per annum from the day of the death of the said Andrew. 2dly. That the defendant, George Hunter, do pay to the complainant in the court below the balance in his hands of money of the estate of the said Andrew, with interest at the same rate from the day it was demanded by the said complainant. 3dly. That the complainant, after giving credit for the sum that shall be thus paid him by the said defendant, and all other sums received by the said Margaret in her life, or the complainant since her death, from, or on account of, the estate of the said Andrew, as well as the value of any part of the personal residue of the said Andrew's estate, which may have come to their, or either of their hands, according to the date of such receipts, shall have the aid of the said circuit court to compel these defendants to raise by sale (if sufficient for that purpose) of their respective shares of the real estate of the said Andrew, descended to them, five-sixths of the balance that shall be computed to be due on the said bond, calculated as above directed. And, lastly, that the cause be remanded to the circuit court for further proceedings.

Decree accordingly.

1817. Duvall

v.

Craig.

(COMMON LAW.)

1817.

Duvall

v.

Craig.

Where the parties to a deed covenanted severally against their own acts and incumbrances, and also to warrant and defend against their own acts, and those of all other persons, with an indemnity in lands of an equivalent value in case of eviction; it was held that these covenants were independent, and that it was unnecessary to allege in the declaration any eviction, or any demand or refusal to indemnify with other lands, but that it was sufficient to allege a prior incumbrance by the acts of the grantors, &c., and that the action might be maintained on the first covenant in order to recover pecuniary damages.

Where the grantors covenant generally against incumbrances made by them, it may be construed as extending to several, as well as joint incumbrances. No profert of a deed is necessary where it is stated only as inducement, and where the plaintiff is neither a party nor privy to it.

An averment of an eviction under an elder title is not always necessary to sustain an action on a covenant against incumbrances; if the grantee be unable to obtain possession in consequence of an existing possession or seisin by a person claiming and holding under an elder title, it is equivalent to an eviction, and a breach of the

covenant.

ERROR to the circuit court for the district of Kentucky.

The capias ad respondendum issued in this case was as follows: "The United States of America to the marshal of the Kentucky district, Greeting. You are hereby commanded to take John Craig, Robert Johnson, and Elijah Craig, if they be found within your bailiwick, and them safely keep so that you have their bodies before the judge of our district court, at the capitol in Frankfort, on the first Monday in March next, to answer William Duvall, a citizen of the state of Virginia, of an action of covenant; damages fifty thousand dollars; and have then and there this writ. In testimony whereof, Harry Innes, Esq. judge of our said court, hath caused the seal thereof to be hereunto affixed this 22d day of January, 1804, and of our independence the 28th. Thomas Turnstall, C. D. C."

Whereupon the plaintiff declared against John Craig, Robert Johnson, and Elijah Craig, in covenant, for that whereas, on the 28th day of February, 1795, &c. the said John, and the said Robert and Elijah, as trustees to the said John, by their certain indenture of bargain and sale, &c., did grant, bargain, sell, alien, and confirm unto the said plaintiff, by the name of William Duvall, of the city of Richmond and state of Virginia, his heirs and assigns for ever, a certain tract of land lying and being in the state of Kentucky, &c., together with the improvements, water courses, profits, and appurtenances whatsoever, belonging, or in any wise appertaining; and the reversion and remainder, and remainders and profits, thereof; and all the estate, right, title, property, and demand of them, the said John Craig, and Robert Johnson, and Elijah Craig, trustees for the said John Craig, of, in, and to the same, to have and to hold the lands thereby conveyed with all and singular the premises, and every part and parcel thereof to the said William Duvall, his heirs and assigns for ever, to the only proper use and behoof of him, the said William, his heirs and assigns for ever; and the said John Craig, and Robert Johnson, and Elijah Craig, trustees to the said John Craig, for themselves, their heirs, executors, and administrators, did covenant, promise, and agree, to and with the said William Duvall, his heirs and assigns, that the premises before mentioned,

1817.

Duvall v.

Craig.