Volume 1 — Patton & Heath's Virginia Reports

Thomas B. Maddox, committee of Burr Harrison, a lunatic, brought suit in January, 1819, in the Superior Court of Fauquier, against Thomas Ashby, to recover a negro girl named Caroline, who had been purchased by said Ashby at a sale made by him as deputy sheriff, under an execution against George Pickett, Jr., surviving trustee of said Burr Harrison.

Gustavus A. Rose filed a bill in November, 1821, in the Circuit Court of Lynch-burg, setting forth that his relation, Alexander B. Rose,… Held: that the defence of champerty to the original bill could not be maintained, and that, on the contrary, it was a meritorious bill; that the objection to the supplemental bill could not be sustained, for it was only filed for the purpose of claiming a greater interest in the same subject, against the same parties ; that the statute of…

*The facts of the case sufficiently appear from the opinions of the judges, particularly that of Gilmer, J. It was an appeal from the decision of the Circuit Court of Hampshire, by Joseph H. and Anna Sherrard, executor and executrix of John Sherrard, deceased, and Angus W. McDonald.

In February, 1829, Ann W. Robinson, William P. Claytor, and Martha, his wife, (late Martha Robinson,) and James C. Robinson, filed a bill in the Circuit Court of Lynchburg, from which it appeared that they were the only children and distributees of James Robinson; and that in 1815, after the death of their said father, Samuel Robinson became their guardian, and executed with Edmund Read and John Hewitt, his securities, the usual bond in the penaltj' of $1,800.

Abraham Isler filed a bill in September, 1847, in the Circuit Court of Jefferson, against Thomas H. and William B. Willis, millers of that county, alleging that, in 184S, he applied to those gentlemen to advance him above $400 on his crop of wheat then on hand, to pay off an execution against him, in the hands of the sheriff, in the name of one Culverson; and that they did advance him $399, and paid it to Robert Bucas, the sheriff; that another execution, in the name of…

James A. Smith filed his bill in 1847 in the Circuit Court of Mecklenburg-, praying an injunction against Joseph G. Sneed, to restrain him from further proceeding upon a judgment for $3,500 against the said plaintiff.

In November, 1848, Jonathan C. Gibson and Samuel Chilton brought an action of assumpsit against John C. Major, ex’or of William Major, dec’d, for the sum of $875 70, claimed by them for professional… Held: that it was not champer-tous, because the contract did not give him an interest in the thing itself. In this case the precise question at bar was raised, and it was decided favorably to the views of the appellees here.

Lucy Quarles, by her last will, appointed Thomas Johnson and John Metcalfe her executors, and among other legaciés bequeathed to her nephew, John Poindexter, the sum of one thousand dollars. John Poindexter had many years before left the oountj’ of Louisa, in Virginia, where he had formerly resided, and had removed to the State of Kentucky.

In January, 1845, Julia Ann Grosjean, of the S.tate of Kentucky, exhibited her bill in the Circuit Superior Court of Taw and Chancery for the county of Hanover, against Richard Smith, in which she charges: that she is ,the widow of John J. Grosjean, who died in the year 1819, in the State of Kentucky, having left a will, by which he devised his whole estate, after payment of debts, to her; that her said husband was •the. son of John J. Grosjean, who died in the county of…

On the 18th December, 1797, an order was made by the County Court of Prince Edward, reciting, that 1 ‘it appeared to the court” that Josiah Chambers was not of sufficient sanity to take care of his estate, and appointing a committee to preserve and manage it.

Thomas J. Perkins, in the year 1837, was a member of the firm of Thomas J. Perkins & Co., and borrowed of Isham W. Clements, for the use of the firm, the sum of §580, and gave therefor a single bill, to which he signed the name of the firm, made payable to Cary Clements, the wife of Isham Clements, at his request.

The will of Absalom Flowers contained the following clause: “I direct that my negro man James have his choice to live with either of my children or grandchildren, whichever way he may select; but he may have the privilege to change his home, if he think proper, if not well treated, and may live where he prefers.” The negro man James elected to live with the testator’s daughter, Lucy, the wife of Littleton Adams, and he was delivered by the executor of Flowers, to Adams, who…

The will of Philip,®. Vass, made the 8th August, 1831, and admitted to probat by the County Court of Halifax on the 22d April, 1833, contained among various other other items, the following: ‘Item 12th.

*On the 20th day of December, in the year 1828, Meriel H. C. Colley, otherwise called Meriel H. C. Rhodes, a widow, being about to marry William Boyer, made, with his privity and assent, a deed, by which she conveyed to Charles C. Mitchell her whole estate, consisting of a tract of two hundred and forty-two acres of land and sixteen negroes, in trust for her sole and separate use and benefit during her life, and “the profits to be applied to her sole and separate use and the…

In 1847, Thomas E. Poythress died, leaving- a will, by which he devised to his wife, Beersheba, all his property for life. The will then proceeded as follows: “Second.

In 1846, Hugh Caperton and Richard M. Crump, merchants and partners under the name of Caperton & Crump, brought suit in the Circuit Court of Albemarle, against Peter C. Hogg, Abraham Whitmore and J. J. Paris, merchants and partners, under the name of Hogg, Whitmore & Co. The writ was served only on Paris, and against him judgment was obtained for the sum of $12,185 11.

In April, 1841, an action of covenant was brought by Benjamin F. Graham against William Bardin for breach of warranty, in respect to the soundness of a negro… Held: that, after tender, a right to recover for keep arises, for so long as might be “reasonably occupied in endeavoring to sell the horse to best advantage.” See also Street v. Blay, 2 B. & A. 456, (22 Eng. Com. Daw, 123;) Pulton v. Dattimore, 9 B. & C. 259, (17 Eng. Com. Daw, 373;) Dawson v. Callis et als., 4 Eng.

In 1819, James Brown, a Richmond merchant, found himself largely indebted to various persons, but chiefly to one John Ivesslie, to whom, in settlement, he executed five bonds; and to secure the… Held: and that as such trustee the statute would not run in his favor. It will not be pretended that he was any thing but a constructive trustee, (if one at all,) and it is submitted that he was not even such a trustee.

Ia 1842, Smithson H. Davis drew a bill of exchange on Samuel S. Saunders, a copy of which, with the endorsement thereon, is as follows: “Lynchburg, February 18th, 1842. “S2,000. Held: that error in one was no ground to set aside the judgment, for it was good on the other count; but in this case, the counts are not the same. The several cases cited on this point áre distinguishable from the case at bar in the same way.

In 184S, Robert B. Craddock, John Ellett and Sarah Ann, his wife, (who was Sarah Ann Craddock,) and Ebenezer B. Stevens and Elizabeth, his wife, (who was Elizabeth Craddock,) instituted an action of ejectment against Francis Eoxwell and W. F. Carvedo, in the Circuit Court of the city of Richmond and count}' of Henrico; to recover from them a certain tenement in the city of Richmond, held bjr them as the tenants of one William Taylor.

<p>i. Fraudulent Conveyances — Trusts—Grantee Recognizes Trust — Rights ot Cestuis Que Trust.* — "Although a party to whom property is conveyed upon a fraudulent secret trust, may hold it as his own, against the grantor and his representatives, yet if the grantee assents to the trust, and executes it in part, it is not competent for such of the cestuis que trust as may have gotten possession of the property, to set np the fraud for the purpose of defeating the claim of the other cestuis que trust to their share of the property.”</p> <p>This principle decided in the same case in 3 Grat. 77, approved.</p> <p>3. Same — Same—Same—Same.—Though the grantee might, by repudiating the trust, have claimed and held as his own, the property embraced in the fraudulent deed, yet, as he recognized the trust, although he executed a deed “relinquishing his right to” a portion of the property for an alleged valuable consideration, to one of the cestuis que trust, his grantee acquired no title to the property, but simply his interest as trustee, and cannot defeat the claims of his co-cestuis que trust, by any claim of title derived from him.</p> <p>3. Statute oí Limitations. — The statute of limitations is no bar to a recovery in such a case. '</p>

On the 22d day of April, 1839, Harrison M. Gibbs conveyed all his interest in the estate of Christopher Roberts, who was the brother of his wife, and had died intestate, leaving' considerable real estate, consisting of houses and lots in the town of Lynch-burg, and land in its vicinity, to David Rodes, in trust, to secure to his brother, John Gibbs, two bonds, one bearing date 20th * April, 183S, for the sum of $425; and the other dated 4th April, 1836, for the sum of $1,000.

In April, 1845, Asa Holland, assignee of John Sample, recovered a judgment against Robert Hairston, for the sum of eleven hundred and fifty dollars, and costs, to be… Held: that the sheriff was not responsible for levying a distress against a clergyman, although the distress was illegal. In Hill v. Bateman, Strange R. 710, it was held, that the officer was not personally responsible for executing process, if it issued from a magistrate having jurisdiction of the subject.

In the Circuit Superior Court of Daw and Chancery for Morgan county, on the trial of a writ of right for nine hundred and twenty acres of land in Morgan county, the demandants offered in evidence to the jury, a patent from the Commonwealth, comprising the land in controversy, dated on the 30th of April, 1845, prior to the issuing of the writ, which was sued out on the 10th October, 1845.

■ In 1836, George Elliott filed his bill in the Circuit Superior Court of the county of York, setting forth, that he was addicted to habits of intoxication, and whilst in that state was often imposed… Held: that to prove undue influence, transactions before and after, as well as at the time of the conveyance, may be property admitted in evidence. We find the same doctrine in Wood v. United States, 16 Peters, 342. Justice Story, in delivering the

In October, 1787, John Macon, of Powhatan, married his second wife, and about twelve months thereafter, to wit: in November, 1788, he advanced to Caty Todd and Martha Todd Macon, (two daughters. by his first wife, who afterwards married Thomas and John Miller, respectively,) a number of slaves which he obtained by his marriage with their mother.

In 1845, Charles . Green , became special bail for one John Green, in a suit instituted against him by one Francis J. Thompson. In August of that year, Thompson recovered judgment against John Green. On the 26th February, 1848, the plaintiff, Thompson, sued out of the clerk’s office of the county court of Rappahannock a scire facias, returnable on the first Monday in March following, against Charles Green, as special bail.