Volume 1 — Virginia Reports

John How brought assumpsit in the year 1809 in the county court of Richmond, against John W. Tomlin, administrator of Walker Tomlin. Held: that the plea of the statute of limitations ought *not to be allowed at any term subsequent to that at which the office judgment ought to have been set aside, unless some sufficient cause appeared to excuse the neglect of pleading it in due time. Did any such sufficient cause appear in this case? for this is the only question.

<p>Injunction* — New Security. — -If at any time, the security for prosecuting'an Injunction shall prove to be insufficient, the court will require unexceptionable security to be given.</p>

<p>Chancery Practice--Granting Favors. — A Court of Equity will not, at the instance of a party asking a favour, grant it, by imposing conditions on the other party.</p> <p>Same —Injunction† -Abatement — Revival.- when an injunction has abated by the death of the defendant, the Court will make a rule that it shall stand dissolved, unless the complainant will revive it against the representatives of the defendant, within a given time after they shall have qualified.</p>

This was an appeal from the superior court of law for Richmond county. The appellee made a motion against the appellant and his surety on a forthcoming bond, which recited the execution with the legal costs attending the same, as amounting to 2.041. 11s. 2d.; but the execution itself is not made part of the record by bill of exceptions, nor does it appear that any objection was made in the court below to any excess in the judgment beyond the amount due by the execution.

Oh the 1st of October, 1787., John Stockdell, and Francis Graves? the appellee,, made a writing to the appellant in the following words, viz, “ for value received we promise to pay John Groves, or order, on. the 1st day of December next, the sum of 260/. current money, In Fierce''s final settlements at the rate of twenty shillings, such settlements, for each thirteen pence current money, the said John Groves agrees that the same may be discharged by the payment of a like-sum…

<p>Administration Bond-Action on — What Necessary to Sustain.* — It is necessary, after a judgment against an executor or administrator, as snch, to establish a devastavit, by means of a second suit, before an action can be maintained on the administration bond.</p>

<p>Lawhorne made application to the county court of Bed-ford, for leave to erect a water grist mill on Back- Creek in that county, he owning the land on both sides of the stream. The county court awarded him a writ of ad quod damnum. The jury, in their inquest, found, that about three acres of land, in the possession of Anthony and Lancaster, which they purchased jointly of the representatives of William the n Leftwich, would be overflowed by raising tire dam proposed by Lawhorne nineteen feet high; and assessed the value-thereof to 35 dollars. The writ and inquest being returned, county court summoned Anthony and Lancaster to the-t court, to shew cause, if any they had, against Law-home's application. The record did not state, that the summofis was served on those parties, or, in express terms, that they appeared. At the next term, the court made the following order: “ On the motion of Isham Lawhorne, for leave to erect a water grist mill on Back-Creek, on hearing, it is the opinion of the court, that the said mill be established, the dam to be nineteen feet in height, without the payment of any damages by the applicant: it appearing to the satisfaction of the court, that the said Anthony and Lancaster in the report of the jury mentioned, or either of them, have no manner of title to the land, or any part thereof, which will be overflowed by the erection of tire said dam, but that the said land belongs to the applicant.” From this order, Anthony and Lancaster appealed to the circuit court of Bed-ford.</p> <p>The parties appeared at the first term of the circuit court, and on the first day of the term; and the appellants asked a continuance, upon ah affidavit, stating that they had summoned two witnesses whom they deemed material, and who they believed were then in attendance, but that another material witness, one Lee, whom they had not summoned, but who had promised to attend, was absent. The court postponed the hearing till the third day of the term, to give the appellants an opportunity to take Lee’s deposition. It was taken accordingly. On the third day, the motion for a continuance was renewed, on the ground of the absence of one of the first mentioned witnesses, named Graves, who had been regularly summoned, and who was material; and it was stated on oath, that, when the motion was made on the first day, Graves was one of the witnesses then alluded to and supposed to be in attendance, but that it was afterwards ascertained that he had been prevented from attending by the illness of his wife. The circuit court denied the continu- . anee, because on the first motion, Lee’s affidavit was agreed to he taken by consent, as removing all objections to a trial during the term, and it was not disclosed by the appellants that they might not be ready after they should obtain the same. To this opinion the appellants filed exceptions, setting forth the facts as above stated.</p> <p>The circuit court then affirmed the order of the county court; and the appellants appealed to this court.</p>

<p>By articles of agreement entered into the 27th of September 1815, between John Ware and Polhj Ware of the one part and Thomas Shores of the other part, it was witnessed that John Ware and Polly Ware had sold to Thomas Shores certain lands, to wit, 410 acres of high land and 59 acres of islands, at the following prices, to wit, 8 dollars per acre for the high land, and 60 dollars per acre for the islands; and then, after setting forth that the late mrs. Susanna Wilcox, as administratrix of Edmund Wilcox deceased, had a mortgage on said lands (including certain land in the possession of Washington Ware), the amount of which could not then be ascertained, and that John Forbes as agent for Thompson Snodgrass Sf Co. had also a claim against the said lands, the amount of which could not then be ascertained, it was agreed that John Ware and Polly Ware should ascertain, as soon as they could, the amount of said claims, and have the same certified under the hands of the claimants, and Shores should retain in his hands and pay to the respective claimants two thirds thereof (Washington Ware's part of the land being bound for the other third). The articles then provided for the execution of a deed, the payment by Shores to John and Polly Ware of the residue of the purchase money over and beyond the said two thirds, and the delivery of possession of the land.</p> <p>Shores paid off the claim of mrs. Wilcox, and also paid to John and Polly Ware part of the purchase money. Polly Ware, by her will, bequeathed the balance due to her on account of the said purchase, and almost all the rest of her estate, to her brother Washington Ware, and appointed her brothers Washington Ware and John Ware her executors, of whom Washington Ware alone qualified as such.</p> <p>On the 16th of April 1818, a bond was entered into by John Ware, Washington Ware and William Pasteur to Thomas Shores, in the penalty of 4000 dollars, whereby, after reciting that it was uncertain whether the said John Forbes, attorney as aforesaid, had any legal or equitable claim on the land sold to Shores, or against Shores as the holder thereof, and that John Ware and Washington Ware, as executor of Polly Ware, were desirous of drawing out of the hands of Thomas Shores the balance of the money remaining due for the purchase of the land, the condition was that if John Ware, Washington Ware and William Pasteur should save harmless and indemnify Thomas Shores for all costs or other damages he might sustain in consequence of his paying to the said John and Washington the balance of the said money, in case the said John Forbes agent as aforesaid, or any other person on account of his claim as agent, should recover any money, costs or damages of Shores in consequence of his purchase, or otherwise interrupt him i the possession of the said land, or in consequence 0f his paying over to the said John and Washington the balance of the said money, then the said obligation was to be void.</p> <p>A question arising at the time this bond was executed, whether Shores was bound for interest on the money while retained in his hands to satisfy the unascertained claims, this matter was not then adjusted, but Shores paid at the time 1200 dollars.</p> <p>An action of covenant was afterwards brought against Shores, in the name of John Ware as surviving covenantee of John and Polly Ware, for the benefit of the estate of Polly Ware, in which action a verdict was found and judgment rendered for the plaintiff against Shores, on the 27th of October 1830, for 2026 dollars 50 cents damages, wdth interest from the 22d of October 1822 till paid, and the costs. The next day the defendant moved the court to set aside the verdict and judgment, and grant him a new trial, upon the ground of a mistake of the jury in the estimation of damages, committed in the calculation of payments made by the defendant. Whereupon the plaintiff by his counsel agreed to release 1579 dollars 22J cents parcel of the damages assessed, as of the 22d of October 1822, and the defendant withdrew his application for a new trial.</p> <p>On the 10th of May 1831, Thomas Shores, in his own right and as administrator of the estate of William Pasteur deceased, exhibited a bill of injunction, setting forth that the payment of 1200 dollars made at the time the indemnifying bond was given, and other payments made from time to time, fully satisfied the whole purchase money exclusive of interest; that a decree had. been obtained in favour of John Forbes attorney in fact for Thompson Snodgrass 8f Co. subjecting the lands to sale to satisfy the' same, and complainant had purchased the land at the price of 1925 dollars 57 cents, being the two thirds to which his proportion of the land was subject; that being compelled to rely on the indemnifying bond for this sum, and the principal obligors therein being unable to refund the same, and William 'Pasteur the surety in that bond having died in embarrassed circumstances, he had, with a view of obtaining a preferable claim to the assets over other creditors, become the administrator of Pasteur’s estate, the assets of which appeared, by the report of the commissioners who had settled his accounts, to amount to about 1600 dollars, and the amount in his hands as administrator of Pasteur he had retained, by virtue of his claim on Pasteur as surety in the indemnifying bond, against other creditors of Pasteur, some of equal and others of inferior degree; that nevertheless a claim has been set up, and a verdict and judgment rendered against him, for an alleged balance upon the original purchase. To shew how that balance is made up, he refers to a statement by which the jury were guided at the time of their verdict. He insists that injustice has been done in charging him with interest upon the purchase money before it was due, and also in charging him interest on the money kept in his hands for the claimants, which money he was at all times ready and willing to pay, if certificates had been produced to him, under the hands of the claimants, of the amount of their claims, and had only failed to pay because of the failure to produce such certificates. And inasmuch as the complainant, as the administrator of the estate of Pasteur, has a just claim against Washington Ware, on account of the assets of Pasteur's estate retained by virtue of the indemnifying bond in which Pasteur was the surety of John and Washington Ware, and Washington Ware is, by virtue of the will of Polly Ware, entitled to the benefit of the judgment obtained against the complainant, (there existing, as the complainant charges, no debts whatever against Polhj Ware's estate,) the complainant insists that if the estate of Polly Ware is entitled to recover any thing of him, it is equitable and just that his demand as administrator of Pasteur should he set °ff against the same, and the said complainant allowed to retain the same in his hands, to be applied towards satisfying the creditors of Pasteur's estate, instead of resorting to an action at law to recover the amount so due to Pasteur's estate, which, if he were so to proceed, would in all probability be unavailing, as Washington Ware is without any visible property sufficient to satisfy the demand, and John Ware some years since left the commonwealth as an absconding debtor, and is not now an inhabitant of the same. The complainant farther states that a credit for' 203 dollars 12 cents was allowed by the jury, as the difference between what was supposed to be the amount of assets of Pasteur's estate, and the amount which the complainant had been compelled to pay under the decree in favour of John Forbes attorney in fact for Thompson Snodgrass Sf Co. This was upon the idea that the whole of the 1600 dollars would certainly be retained in the complainant’s hands, towards satisfying bis demand. But the complainant sets forth, that since the verdict and judgment rendered against him, a debt due from Pasteur by judgment has been demanded from him ; that a scire facias is also pending against him as administrator of Pasteur, upon a recognizance of special bail; and that these debts he may be compelled to pay as debts of superior dignity to his own. The bill also sets forth that Pasteur was in his lifetime the administrator of several estates, the accounts of which have not been settled, and it is yet uncertain whether the complainant will not be compelled to pay considerable sums on account thereof. Washington Ware and John Ware are prayed to be made defendants, and an injunction is asked to the judgment against the complainant.</p> <p>The statement of the jury, a copy whereof was exhibited with the bill, contains no credit of the 1200 dollars paid at the time the indemnifying bond was given. The amount, including interest to the 22d of October 1822, was, according to the calculation of the jury, 2230 dollars 30 cents. Then the following credit was given : “ 22d October 1822. Cr. by amount due Thomas Shores by Pasteur’s estate, occasioned by not receiving from said estate sufficient to pay the debt to Thompson Snodgrass if Co. for which said Pasteur was security, $ 203. 82.” This sum being deducted, the statement concluded thus: “ JBy this amount due W. Ware 22d October 1822, § 2026. 50.” And subjoined was the verdict of the jury for 2026 dollars 50 cents damages, with interest from the 22d of October 1822.</p> <p>The answer of Washington Ware alleges, in general terms, that in the action at law every just claim which the complainant brought forward was allowed. While, however, it controverts those allegations in the bill which were made to shew that injustice had been done in charging interest, the other specific allegations are left uncontradicted, the payment of 1200 dollars at the time of the execution of the indemnifying bond is admitted, and it is stated that the claim of Forbes amounted, when settled, to nearly 3000 dollars.</p> <p>With his answer, Washington Wa.re filed a statement of his claim against Shores, according to which the amount in his favour, with interest calculated to the lGth of April 1818, was 2110 dollars 11 cents. This was without any deduction on account of the lien of Forbes, or of the 1200 dollars.</p> <p>Against the defendant John Ware, the plaintiff proceeded in the mode prescribed by law in relation to absent defendants.</p> <p>The cause coming on to be heard before the circuit court of Fluvanna (to which the case had been removed) that court decreed that the injunction be dissolved, and the bill dismissed with costs.</p> <p>Shores, in his own right and as administrator ofPasteur> petitioned this court for an appeal.</p> <p>By the petition it was admitted that it did not distinctly appear in the record on what account the sum of 1579 dollars 22 cents was released as of the 22d of October 1822, but it was said to be fairly inferrible that it was the principal and interest of the 1200 dollars paid the 16th of April 1818, amounting to about 1524 dollars, and some other small item of omitted credit, or of error in the interest charged. It was, the petitioner contended, certainly not on account of the payment to Forbes, because the jury had already allowed on that account the supposed difference between this payment and Pasteur's funds in the petitioner’s hands. And he insisted that in equity his right to use the payment to Forbes as a setoff against the judgment was perfectly clear, because in equity Washington Ware is principal debtor and principal creditor, and equity would not allow that the petitioner should retain the assets of the surety his intestate, and pay the claim of the principal debtor.</p> <p>The appeal was allowed.</p>

<p>Injunction* — Dissolution after New Trial Ordered.-— When an injunction has been granted and a trial at law directed, the Court, if it is satisfied that the injunction ought to have been dissolved, will, notwithstanding no verdict has been certified, set aside the order fora new trial, and dissolve the injunction.</p>

<p>Attachment.* — An attachment will not lie for one joint complainant against another, who has received more than his proportion of a decree.</p> <p>Same— Costs†— Attorney’s Fee,— On overruling- the motion in such case, costs were directed to be taxed, including an attorney’s fee.</p>

<p>This was an appeal from the superior court of law fertile county of Culpeper, in which court the appellant brought an action on the case against the appellees, who were the occupiers of a certain mill in the said county, for the value of ISO bushels and 34lbs. of wheat, which lie had delivered to them to be ground, and was to receive, in return, one barrel of superfine flour for every live bushels of the said wheat: and he alledges a total failure on the part of the defendants, to perform the agreement on their part, There are several counts in the declaration ; hut, as the question does not turn on the form of the pleadings, it is sufficient to give their substance.</p> <p>The defendants in the court below filed three pleas, setting forth in effect, that after the delivery of the said wheat, the said mills and wheat were accidentally consumed by fire. To these pleas the plaintiff replied generally.</p> <p>At the trial, a statement of facts was agreed on by the parties and submitted to the court for its decision on the law arising on the case agreed, in the same manner as if it had been a demurrer to evidence, 44 and that the judg44 ment shall be rendered according to the very right of 44 the case without regard to the pleadings.”</p> <p>As every circumstance in the case agreed is important,) it is deemed proper to give it at full length.</p> <p>Eobert Slaughter, against</p> <p>John Strother, John W. Green and Jeremiah Strother.</p> <p>"} J>Case agreed. J</p> <p>We agree that at and long before the facts herein after stated occurred, the defendants were owners and occupiers of the mills in the county of Culpeper, called the Paoli mills, and were in the habit and practice of delivering into the said mills their crop of wheat raised on the-farm attached to the said mills, and of receiving into the said mills from such persons as chose to send it, wheat to be manufactured into flour: that the wheat so delivered by the defendants and the wheat so sent by whomsoever or how many sent, was by means of the machinery of said mills mixed together, and flour ground from the mass so mixed without regard to the particular wheat sent by any particular, person : that out of the flour so ground, each person, so sending wheat to the said mills, was entitled, after allowing a reasonable time for grinding the same, to receive from the defendants in succession and in the order in which they might have delivered wheat, upon his or their demand, at the said mills, one barrel of superfine flour for every five bushels of wheat weighing sixty pounds to the bushel and at that rate for a larger or smaller quantity, and to receive as aforesaid such portion of the said flour as he might choose, loose and not packed in barrels; and for every 100 bushels of wheat, 1000 pounds of bran and 300 pounds of ship-stuff, and at that rate for a larger or smaller quantity ; or, if such person chose, he was to give up his claim to the said bran and ship-stuff in consideration of the barrels in which the flour should be packed ; which in all cases were to be furnished by the defendants, or otherwise to pay the defendants 42 cents for each barrel so furnished : that it was the general custom of the country, to grind wheat upon the same terms; all which was well known to the plaintiff at and before the delivery into the said mills of the wheat hereinafter mentioned. We agree, that before the plaintiff delivered into the said mills ilie wheat hereinafter mentioned, various persons, subsequent to the 1st day of August 1815, had delivered into the said mills to be ground as aforesaid 2800 bushels of wheat, weighing sixty pounds to the bushel, including 260 bushels of wheat raised by the said defendants on the farm attached to the said mills, which they had put into the said mills, and all of which 2800 bushels, including the said 260 bushels, were indiscriminately mixed as aforesaid, and was in the mill at the time the plaintiff delivered into the mill the wheat hereinafter mentioned. We agree, that the plaintiff between day of and the day of 1815, without any special contract with the defendants, delivered into the said mills 120 bushels and 29 pounds of wheat weighing 60 pounds to the bushel, for which the defendants gave him the receipts, herewith filed, marked 1, 2, 3, 4, and which are in the words following:</p> <p>«Paoli Mills, 9Ath October, 1815.</p> <p>« Received of Robert Slaughter Esq. fifteen bushels « and fifteen pounds of wheat pr. Joe to grind.</p> <p>«John Strother & Co.”</p> <p>«35 15-60.”</p> <p>« Paoli Mills, 2 6th October, 1815.</p> <p>« Received of Robert Slaughter fifteen bushels and ten «pounds of wheat by Joe to be ground.</p> <p>" «John Strother.”</p> <p>« Paoli Mills, 28 íA October, 1815.</p> <p>« Received of Mr. Robert Slaughter, thirty-nine bush«els and fifty-five lbs. wheat by Thomas Vaughn to be « ground.</p> <p>«John Strother.”</p> <p>« Paoli Mills, 8th December, 1815. Received of Mr, Robert Slaughter by Staunton “ daughter's Calep fifty bushels and fourteen pounds “ wheat to be ground. £< JOHN StKOTHEK.”</p> <p>And it was the understanding of both parties, that the said wheat was delivered to be ground upon the genera! terms of the said mills and the custom of the country aforesaid, and was to receive his quantity of flour therefor, without regard to any particular wheat so delivered into the said mills it might be ground out of, as soon as it came to his turn, and as soon as it could be conveniently ground as aforesaid : that the said wheat so delivered by the plaintiff was the last wheat delivered into the said mills during that season and of the then last crop, except abont 70 bushels weighing 60 pounds to the bushel delivered subsequently by another customer of the mill to be gi’ound as aforesaid: that when the said wheat was so delivered by the plaintiff, a greater part of the wheat which had been so previously delivered into the mill, was deposited in one bulk in the third floor of the mill, and the residue thereof, consisting of six or seven hundred bushels, was deposited in the fourth story of the mill: that the said wheat, so delivered by the plaintiff, was elevated by the machinery of the mill into the said fourth story, and mixed with the bulk of wheat aforesaid previously 1 deposited in the fourth story, and that the said bulk of Iwheat deposited in the fourth story was first ground, and \the whole of the flour made from it, delivered to customers jpf the mill, other than the plaintiff, in satisfaction of their claims upon the mill for flour and which had a priority to the claim of the plaintiff. We agree, that the water in Mountain Run upon which the said mills were built, from the 1st day of August, 1815, to the 15th day of December, 1815, was so low and scarce, that no flour could be made at the said mill during that period; and that on the said 15th day of December, 1815, the water in the said run became abundant, and from that time until the paid mill was burned as hereinafter mentioned, the usual quantity of flour was regularly ground at the said mills, and at all times during the last mentioned period there were more than 30 barrels of superfine flour in the said mill, packed in barrels and ground in manner aforesaid, out of the wheat delivered as aforesaid into the mill.</p> <p>We agree, that a certain Sterne, in September 1815, delivered into tlio said mill a quantity of wheat of superior quality to be ground as aforesaid, and that; John Strother one of the defendants intended to use so much thereof as might be necessary for seeding the crop of the defendants, and offered to lend some of the last mentioned wheat to a neighbour for the same purpose, and gave directions to the miller to put the said wheat by itself; but the miller forgot the directions, and mixed it (as was common) with the wheat of others, and thereby disappointed the intentions of the defendants in seeding thereof or loaning out any as aforesaid. We agree that on the 11th day of February 1816, the said mills with all the wheat, flour, bran and ship-stuff therein, were accidentally and without the default of the defendants, consumed by fire, and that at the time of said burning, there was in the said mill of the wheat delivered as aforesaid and flour ground out of the wheat so delivered and bran and ship-stuff the proceeds of such grinding, a sufficient quantity to satisfy all claims for flour, bran and ship-stuff, which any person or persons so having delivered wheat as aforesaid, had against the defendants on that account, and that no flour had been delivered by the defendants to the plaintiff on account of the wheat so by him delivered, except 100 pounds which he received at the said mills on that account; and that the plaintiff, after the burning oí the said mills, demanded of the said defendants, at the place where the said mills had. stood, 24 barrels of superfine flour, on account of the' said wheat so by him delivered; which flour the defendants did pot deliver to the plaintiff. We agree, that the receipts herein before mentioned, giyen by the defendants *° ^ie plaintiff, were in the usual form of receipts gives for wheat delivered at the mill, and were intended to shew that the wheat was received to be ground according to the usage and custom of the mill before stated. We agree, faw> arising upon the foregoing case agreed, shall be adjudged as if all the facts aforesaid had been proved by the plaintiff, and the foregoing case agreed, was a demurrer to evidence filed by the defendants, and that the judg- ' ment shall be rendered according to the very right of the case, without regard to the pleadings. And we agree, that if the law be for the plaintiff, so that he is entitled to recover for the whole amount of the wheat so delivered by him, after crediting the 100 pounds of flour aforesaid, that judgment shall be entered for the plaintiff for $152 75, with interest thereon from the 11th day of February, 3816. But, if the plaintiff be not entitled as aforesaid, and the defendants be responsible to him for any thing on account of their having put into the said mills 260 bushels of wheat as aforesaid, then we agree that judg» ment shall be rendered for the plaintiff for $38 18,' with interest from the 11th day of February, 1816. And if the defendants be not responsible as last aforesaid, but be responsible to the plaintiff for any thing, on account of any interest which they might have had in the wheat, flour, bran and ship-stuff so burned, otherwise than on account of the said 260 bushels of wheat, we agree that judgment shall be rendered for the plaintiff for $38 18, with interest from the 11th day of February, 1816 j and if the defendants be responsible to the plaintiff, both on account of the said 260 bushels of wheat and on account of any other interest which they may have had in the said wheat, flour, bran and ship-stuff so burned, we agree that judgment shall be rendered for the plaintiff for $76 36, with interest from the 11th day of February, 1816. But, if the law upon the whole matter be for the defendants^ that then judgment be rendered for the defendants.</p> <p>Upon this agreed case, the court rendered judgment for 1 “ J 7 the defendants j and the plaintiff appealed to this court.</p> <p>Leigh, for the appellant.</p>

<p>Usury — Interest on Interest.* — It is not usurious, upon a settlement of accounts, to take a bond or note for the balance due, including interest, and to receive interest on such bond or note.</p>

<p>Forthcoming Bond — Motion on — When it Can Be riade.‡ —A motion on a forthcoming bond can only be made on the day to which the notice is given, unless the defendant be called, and the motion entered and continued.</p>

This was an action on the case, brought by the appellant in the District Court of Richmond, against the appellee formerly sheriff of Hanover county, for the escape of Parke Smith committed at the suit of the appellant, upon a writ returned “executed and committed to jail” by William Bentley deputy sheriff.

<p>Dixon Robinson of the comity of Fauquier, died in 1816, having first made his will, by which he gave his whole estate to' his wife for life, or until she married ; and then, (after a specific legacy of a slave to each of his eleven children,) he directs that after the death or marriage of his wife, the whole of the property devised to her, be sold (the land on a credit of twelve months) to the highest bidder; and the money to be equally divided among his children then living: and he appointed Carr Bailey and Samuel Weaver his executors ; who qualified as such, in the county court of Fauquier.</p> <p>. The land consisted of a tract of about one hundred and fifty-five acres: and the personal estate, after taking out the specific bequests, consisted of four slaves, and some perishable property.</p> <p>In 1817, the widow having died, the executors proceeded to sell the property, when the perishable part of it was purchased for the benefit of the children, eight of whom were then infants: one of the slaves was bought by the executor Bailey, at the price of 516 dollars 50 cents. The land was also purchased by Bailey at 8 dollars 50 cents per acre.</p> <p>In 1822, the children of Dixon Robinson filed their bill in the late superior court of chancery for the Fredericksburg district, against the executors Bailey and Weaver ; in which they charge, that after the death of their mother, the executors possessed themselves of the whole estate real and personal, for which they had never accounted. That in May 1817, they proceeded to sell the land; and sold it upon the terms of not delivering possession thereof, for twelve months from the day of salo. That Bailey repeatedly declared at the sale, that he wished to purchase the land for the benefit of the daughters of Dixon Robinson; whereby many who would have given 10 or 12 dollars an acre for it, were induced not to bid; so that Bailey became the purchaser at 8 dollars 50 cents per acre: and that the other executor Weaver had since executed to Bailey a deed for the land. That Ba,iley still retains the title, and possession of the land, which is worth considerably more than the price for which it was sold. They therefore pray that the sale of the land may be set aside; and that the same may be resold; and that the executors may be compelled to settle their executorial accounts.</p> <p>Before the executors had answered the bill, the plaintiffs, and a certain Samuel Mooney, who claimed to be assignee of JacJcin Robinson, one of the children and devisees of Dixon Robinson, filed an amended and supplemental bill; in which they charge that in December 1816, at the sale of the slaves and personal effects of his testator, Bailey declared in the presence of divers persons who attended the sale for the purpose of bidding thereat, that he desired to purchase in the slaves and personal effects for the benefit of the daughters of Dixon Robinson ; whereby many persons from kindness to the daughters, declined bidding; so that Bailey became the purchaser of the slaves and other personal effects at a price much below their value; and having thus obtained them, claims and uses them as his own. The plaintiffs therefore pray that Bailey may be held responsible to them for the price at which the land and slaves would have then sold at a fair sale.</p> <p>Bailey and Weaver answered separately. Bailey says, that the perishable property was purchased by Polly Robinson for herself and the other legatees; and has ever since remained in their possession, or has been consumed by them. That the land was sold on the terms stated in the bill; that it was a fair sale, and brought a full price. That after the sale, the children of Dixon Robinson' lived upon the land, and enjoyed the profits of it; and have never paid him any rent ; but are still his debtors for this, and other advances to them and the widow. That he purchased one slave for 516 dollars 50 cents—more than his value: that one of the slaves was a subject of expense, and entirely unfit for service ; that another was also old, and could not be sold at public auction; and that she was ultimately disposed of for 25 dollars, in a bond of William Robinson, who married the plaintiff Polly: and that the other slave was sold to a certain John Brown for 510 dollars. That he purchased none of the personal effects, except a wheat fan; and that was permitted to remain in the service of the family.</p> <p>Weaver answered to the same effect.</p> <p>The accounts were referred to a commissioner, before whom depositions were taken ; and the evidence satisfied the commissioner, and the court below, that the allegations of the bill as to the conduct of Bailey at the sale were sustained by the proofs, and that but for this conduct the land would have brought 11 dollars per acre; and the commissioner in his report, charged Bailey with the land at that price.</p> <p>Whilst the cause was before the commissioner, a certain William Lawler appeared before him, claiming two shares of the estate, as the assignee of William Robinson, who claimed to hold one share in right of his wife Polly, and one as the assignee of Henry Robinson ; though he was in no way made a party in the cause.</p> <p>The defendant Bailey died whilst the cause was before the commissioner, and it was revived against his administratrix.</p> <p>The cause came on for final hearing before the circuit superior court of law and chancery for the county of Prince William, (to which it had been removed) in October 1834, on the report and exceptions thereto ; when the court made a decree, fixing the liability of Bailey for the land at 11 dollars per acre; sustaining Lawler's claim as assignee; and referring the cause to a commissioner, to enquire into, and report upon other matters connected with the accounts.</p> <p>From this decree Bailey's administratrix appealed.</p>

This was an action on the case, brought by the appellant in the District Court of Richmond, against the appellee formerly sheriff of Hanover county, for the escape of Parke Smith, committed at the suit of the appellant, upon a writ returned “ executed and committed to jaiF'by William Bentley, deputy sheriff The declaration sets forth the writ, service and return, that Macon kept an insufficient gaol; that he voluntarily and negligently suffered Smith to escape, and failed to…

<p>Chancery Jurisdiction — Lands in Another State.† — A person being within the commonwealth, may be decreed to execute a conveyance for lands lying1 in another state, or to cancel a deed for such lands obtained by fraud.</p>

This was an action of debt brought upon a bond in the county court of Accomack by the appellant. Plea owe nothing, with leave to give the special matter in evidence ; hut oyer is not prayed.

The appellants, claiming as heirs of Thomas Neil deceased, exhibited their bill in the superior court of chancery of Winchester, against the appellees, who claimed as his devisees, contesting the validity of an instrument purporting to be.the will of that decedent, whereby real estate was devised, which had been proved and recorded in the county court of Frederick, upon the ground, that the instrument had not been duly published, declared and attested, according to the…

<p>-Hot:on to Dissolve — 3-inal Hearing*.-— When no motion is made to dissolve an injunction, nntil the canse is regularly set tor hearing, on the Court docket, the hearing shall then be final.</p>

THIS was a motion to dissolve an injunction granted in November, 1804, to stay proceedings on a judgment of Henrico county court, obtained upon a bond executed by The bill suited that the bond was given for the purchase nionev of a >'-act of land in the state of Ohio ; that, in consequence of the interference of surveys mane on behalf of other persons pri- or to that of Junes, it appeared that the estate of hadford the testator of the complainants would lose 173 acres, partí…

<p>THIS was a motion to dissolve an injunction granted in November, 1804, to stay proceedings on a judgment of Henrico county court, obtained upon a bond executed by</p> <p>The bill suited that the bond was given for the purchase nionev of a >'-act of land in the state of Ohio ; that, in consequence of the interference of surveys mane on behalf of other persons pri- or to that of Junes, it appeared that the estate of hadford the testator of the complainants would lose 173 acres, partí of the tract which he had bought. As presumptive evidence of this, the complainants exhibited a plot and certificate of survey, signed by a surveyor in the state of Ohio, and found among the papers of William Radford, but which was not duly authenticated. The answer (which was filed in March, 1806,) denied the allegations in the bill, and demanded proof of their truth.</p> <p>moved for a continuance, alledgiag that they could, at the next term, be prepared to shew that the allegations in the bill were true, bv evidence which they could procure from the state of Ohio, but had hitherto been prevented from obtaining by the great distance of the resilience of the complainants from that state, and the difficulty of having such subjects, as taking testimony so far off, attended to.</p> <p>on .he other side, contended that a continuance ought not to be granted, it being inconsistent with the practice of the court; and because the injunction had been awarded nearly two years, during which time the complainants might have availed themselves of any testimony deemed essential in their cause.</p> <p>In reply, it was said that the answer had been lately filed, and that, until then, the complainants were not informed of the points intended to be controverted.</p>

THIS was a motion to dissolve an injunction granted in November, 1804, to stay proceedings on a judgment of Henrico County Court, obtained upon a bond executed by *William Radford to James Innes.

This was an action of debt, brought upon a bond, in the County Court of Accomack, by the appellant Plea nil debet, with leave to give the special matter m evidence ; but oyer is not prayed.

This was an action of debt brought in the County Court of Prince Edward by the appellant upon a bond bearing date the 1st of February 1780, with condition to pay ¿105 9 2£ on or before the 17th of December 1781, with interest thereon from the 16th of February 1779. Upon the plea of payment, the parties consented to submit the trial of the cause to the Court without a jury.

Bussard brought a special action on the case against Marshall, in the Superior court of Spottsylvania, charging that the plaintiff was entitled to 1245 bushels of barley, then laden on board a vessel… Held: that justifiable was not equivalent to probable cause; and in Kirtley v. Deck (b) it was decided, that the words false and malicious were insufficient, but there must also be added, without probable cause.

This was an action on the case, upon an insimul compulasset, instituted in the Borough court of Williamsburg' by Belches against Brown the appellant, and William Eaton. The declaration is against both, but an abatement of the suit was entered as to Eaton, upon the return of the writ, that he was no inhabitant of the city. —Plea, non assumpsit. — By consent of parties the cause was referred to arbitrators, whose award, it was agreed, should be the judgment of the court.

THLS ¡'arise, originally instituted in the court of Campbell county, for a settlement of the mercantile accounts 'of Tate cs“ Co. in which the complainants were partners, was removed to this court by certiorari, awarded, on the application of the defendant jfhe firm was constituted without any written agreement,or articles moved for an order of reference of the accounts to a commissioner, with instructions, to commence with the accounts of 1791, and that die defendant…

<p>Pleading and Practice — Partnerships—Failure to Serve Process on One Member — Abatement. *— Action against, two partners to recover a partnership debt. The writ was executed on one only, and as to the other, he was returned “no inhabitant of the city,” and the suit was entered, abated as to him. One partner may be sued alone for a partnership debt, and he can help himself only by a. plea in abatement. Though the declaration state a joint contract, this does not vary the rule. The suit was properly abated, as to the partner not served with the process, under the act of assembly.</p>

<p>Creditor of Deceased Person — Equitable Relief — Remedy at Law.*— When a creditor of a person deceased lias a remedy against his executor or administrator at common law, he cannot sue in Chancery to establish his demand.</p> <p>Chancery Practice - Suit against Administrator’s Sureties before Devastavit Fixed on Principal† — The securities for an executor or administrator cannot be sued in equity until a devastavit is fixed upon, the principal, in a. previous suit against him, except in cases where, from some inevitable necessity, a creditor is obliged to come into equity, in the first instance, against the principal: and then, to prevent a circuity of actions, the securities should be made parties.</p>

This was an action of debt, instituted in the county court of Eouisa by the appellant, against the appellee. — Plea, payment.

This was an action of debt brought in the County Court of Prince Edwardby the appellant upon a bond bearing date the 1st of February, 1780, with condition to pay 105/. 9i. 2§d. on or before the 17th of December, Í781, with interest thereon from the 16th of February, 1779. Upon the plea of payment, .the parties consented to submit the trial of the cause to the Court without a jury.

The appellant having filed a bill in the High Court of Chancery against the appellee praying an account, an order was made by consent of parties, referring all matters in difference between them to the final determination of two arbitrators, indifferently chosen by them, and, in case of their disagreement, to such umpire as they should chuse, who are to proceed to determine the same, in conformity to bonds entered into by the parties on the 6th day May 1788.

Edmund Turner of Southampton died in 1821, leaving a widow and two infant children; and Benjamin Turner and Jarrell Turner qualified as administrators upon his estate. Jarrell Turner died in 1823, when Benjamin Turner qualified as administrator upon his estate, and died as p appeared in 1829; up to which time, no account of administration upon Edmund Turnei''s estate, either by Jarrell or Benjamin Timer had been settled.

<p>Action against two partners to recover a partnership debt. The writ was executed on one only, and as to the other, he was returned “ no inhabitant of the city/1 ***5 and the suit was entered, abated as to him. One partner may be sued alone for a partnership debt, and he can help himself only by a plea in abatement. Though the declaration state a joint contract, this does not vary the rule. The suit was properly abated, as to the partner not served with the process, under the act of assembly.</p>

THE defendants obtained a decree in the County Court of Richmond against the complainant, upon a second verdict found on the common law side of that Court, in a suit in Chancery, brought, under the peculiar circumstances of the case, to recover the mesne profits of an estate to which they were entitled, and which had been in the possession of the grandfather of the present complainant for many years.

<p>Remanding Cause — New Parties. — After a decision, by the Court of Appeals, remanding- a cause to the Court of Chancery, new parties may be admitted.</p> <p>Insolvent Debtor’s Property — Distribution among Creditors — Right of Lien Creditor. — In tbe distribution among creditors of the property of an insolvent debtor, who is living, a creditor who has a lien on a specific fund, and has obtained a decree against that fund, which proves insufficient, does not thereby acquire any lien more than he had before, upon the general fund.</p> <p>Same — Same—Interest on Claims. — Interest on the respective claims allowed only to the time when the proceeds of the sale of the lands came into the hands of commissioners.</p>

<p>A treasury note is, by the act of Congress, transferable by delivery and assign. ment only.</p> <p>■Where a treasury note was assigned by the payee by endorsement in writing to A. B, or order, then transferred by a blank endorsement by A. B., after-wards endorsed in full by C. D, (into whose hands it had regularly come,) to E. E. j this note being afterwards stolen from the mail, and coming by a series of endorsements into the hands of a bona fide assignee, may be recovered in an action of detinue brought by C. D, against the holder.</p>

<p>On the 10th of Octobei 1818, a sale was made of a tract of 370 acres of land in Augusta county, at $40. per acre, to be paid as follows, viz. $ 600. in hand (which was paid accordingly), $ 1200. on the 28th of December 1818 with interest from the day of sale, $ 1200. on the 28th of March 1819 with like interest, $ 750. on the 28th of March 1820, and the residue in sums of $ 750. payable at specified times. By the articles of agreement, the vendee was to give bonds and satisfactory security for his payments, and the vendor bound himself to make the vendee a good and sufficient deed in fee simple, with general warranty, at the first Augusta court after tie payment in 1819. The vendee paid the instalment which fell due on the 28th of December 1818, and the instalment which fell due in 1819 was paid, part before, and the residue on, the 9th of December in that year, so that the vendor became bound to make a deed for the land as early as the first Augusta court after the 9th of December 1819. No deed was made. The vendee notwithstanding paid the instalment which fell due on the 28th of March 1820. About the 10th of April of that year, the vendor died insolvent, and the vendee, soon after his death, made known his determination to make no farther payments until he should get a title. On the 10th of September 1821, a suit in equity was brought by the administrators of the vendor against the vendee and the heirs of the vendor, to compel a specific execution of the contract; and no title having ever been obtained by the vendor, the complainants made defendants those in whom that title was outstanding. A considerable fall having taken place in the value of property, the vendee, by his answer sworn to in May 1825, resisted the prayer of the bill, on the ground that, under the circumstances of the case, equity . required a rescission, and not an execution of the contract. At this time the default of the vendor’s heirs still continued, and it continued three years afterwards; that is to say, it continued for more than eight years from the time when the vendor had bound himself to make the title. During this time the land had fallen in value more than 50 per cent, and the vendee had never surrendered possession. Held, 1. That the long continued default of the vendor and his heirs, and the change of circumstances during its continuance, constitute a valid objection to a specific performance of the contract. 2. That the vendee should, on the one hand, release all his rights under the contract, deliver up the land, and account for its rents and profits during the time he held it; and, on the other hand, have the purchase money paid by him returned, with interest from the times when the payments were made, and also have the value of any permanent improvements which he may have put upon the land set off against the rents and profits, provided they do not exceed the amount of the said rents and profits. 3. That if, on stating an account between the parties on these principles, a balance should appear to be due from the vendee, he should be decreed to pay it; if in his favour, it should be decreed to him, and if there be no sufficient personal estate of the vendor to pay the same, the land should be subjected to its payment. 4. That each party should pay his own costs, except as to taking the accounts, the costs of which should be equally divided between the parties.</p>

<p>Decree of Court of Appeals — Bill of Review — When Maintainable.* — Where a decree has been affirmed by the Court of Appeals, a bill of review ought not to he granted to reverse It for any errors on the face of the proceedings; but if new matter be produced, which was unknown to the party apply- • Ing. at the time of the decree, this Court may, and, if the evidence warrants it, ought to grant such bill of review.</p> <p>Issue Out of Chancery† — Evidence.—where an issue is directed by the Court of Chancery to be tried at law. any papers may be read at the trial of such issue, which were read upon the hearing of the cause, or at a former trial.</p>

<p>This was an action of debt, instituted in foe County Court of Louisa, by the appellant, against the appellee. —=-PIea, payment.</p> <p>At the trial, the plaintiff filed a demurrer to the evi•dence, stating, that the defendant offered in evidence to maintain the issue on his part, a receipt, bearing date long subsequent to this suit, given by John Lew* is, the attorney who prosecuted this action for the plaintiff, and amongst whose papers the bond, en which the suit was brought, was found 5 as also, that prior to the payment made by the said defendant to the said Lewis, on which account the said receipt was given, the defendant applied to the plaintiff to know where the bond was, who replied that it was in the possession of the said Zam.”=»The demurrer was not joined, but the jury were discharged, and at a subsequent term, the Court, after argument, over-ruled the demurrer, and gave judgment for the defendant with full costs, from which the plaintiff appealed to the District Court of Charlottesville.</p> <p>The District Court reversed the judgment, so far as costs were awarded the defendant preceding the payment to Louis, and affirmed it as to the residue; and entered judgment for the appellee for the costs incurred up to the time of such payment, and damages for retarding the execution thereof, with the costs of the appeal.</p> <p>From that judgment Hudson appealed to this Court.</p>

The appellee on the 5th of April 1779, filed his bill in the High court of Chancery, praying to redeem certain negroes which he states he had mortgaged to the appellant in the year 1765, to secure the payment of a debt due to him. The slaves were conveyed by an absolute bill of sale, bearing date the 18th of June 1765, with a warranty, and a receipt for the consideration stated in the deed, was indorsed thereon.

<p>In the year 1826, Edward R. Chambers conveyed to Richard Logan a tract of land lying in the county of Lunenburg, said to contain one thousand and forty-nine acres, in trust, to secure the payment of a sum of money to Judith W. Chambers.</p> <p>In 1832, Logan, in pursuance of the provisions of the trust deed, proceeded to sell this land at public auction, when Thomas Neal became the purchaser thereof, at the price of 3 dollars 15 cents per acre, on a credit of one and two years. The sale was by the acre ; and the written terms of sale, after stating the quantity be believed to be 1049 acres,” proceeded thus, “ the purchaser will be bound to pay for that quantity, unless he shews by a survey made at his own expense, within twelve months, that the quantity is less; in which case, if notice shall have been given of the time of the survey, the bonds (for the purchase money) shall be credited for the deficiency.” The land was surveyed within twelve months from the time of sale, and by that survey the quantity appeared to be but S62¿1 acres; but it did not appear that notice was given to the other-parties interested, of the time of such survey.</p> <p>Neal having executed his bonds for the purchase money, and conveyed the land to William Logan in trust to secure its payment; the trustee was about to proceed to sell the land under this deed, when Neal obtained an injunction to stay his proceedings, as to so much of the purchase money as was equal to the ostensible deficiency in the land: but when the cause came on for final hearing, the court below dissolved the injunction, and dismissed the bill. Prom that decree this appeal was allowed.</p>

Williamson brought detinue against Ear-ley, for the recovery of certain slaves. At the trial, he offered in evidence, a deed of trust executed by Jacobus Christopher, conveying the slaves in controversy to Williamson, in trust to secure a debt due one Tarwater. The deed was dated 13th January, 1817. The defendant Earley to prove his title, offered an absolute bill of sale from Christopher to him, dated 6th January 1817; the consideration of which was the sum of $1000.

<p>Executors — Appeals by — Security.* — Executors' and administrators, having' given-security for their administration, are not to be required to give security, on obtaining injunctions, appeals, writs of error or supersedeas.</p> <p>Attachment — notion to Discharge by Administrator-Necessity for Security. — where debts.due toa person deceased are attached by his creditor, in Chancery, his executors or administrators may appear, file their answers, and have the attachment discharged, on their motion, without giving security.</p>

The appellant having filed a bill in the High Court of Chancery against the appellee, praying an account; an order was made by consent of parties, referring all matters in difference between them to the final determination of two arbitrators, indifferently chosen by them, and, in case of their disagreement, to such umpire as they should chuse, who are to proceed to determine the same, in conformity to bonds entered into by the parties on the 6th day May, 1788.

<p>A Slave removing from Virginia to Ohio, with the consent of his master, for si mero transitory purpose, and with the animus revertendi9 does not thereby acquire a right to freedom in Virginia,</p> <p>A judgment on a habeas corpus in Ohio, in favor of the slave, does not establish his right to freedom.</p> <p>A deed of emancipation executed in Ohio, but having reference to Virginia, will be void, unless itis recorded according to the laws of Virginia.</p>

Bourke brought an action of ' debt against Gransberry, President of the marine insurance company of Norfolk, in the Hustings court of Norfolk, on a… Held: that the sentence is not conclusive in favour of the underwriters. The English Judges have not themselves agreed upon the question. (g) The capture makes the loss total, and the offer to abandon completed the title, (h) The case in 4 Cranch 434, was by an imperfect and divided court, (i) This is a common law question.

<p>Chancery Jurisdiction — Injunction to Stay Waste.*— An injunction to stay waste is generally a proper subject for the jurisdiction of a Court of Equity, notwithstanding an act of Assembly gives a remedy at law.</p> <p>Chancery Practice - OhjecGims to Bill- flow Taken Advantage of† — 'When any objection to a bill is apparent on its face, it may be demurred to, but when not apparent on the bill itself, the proper mode of defence is by plea or answer.</p>

In May 1833, John Randolph of Roanoke died, unmarried and childless; leaving a very large estate, both real and personal. His slaves numbered nearly or quite four hundred. At the time of his death, his heirs and next of kin were John Si. George Randolph, a lunatic, the son of Richard Randolph, his brother of the whole blood, Henry Si.

<p>Appeal — Lapse of Two Terms before Record Brought Up —Effect—After two terms of this Court have elapsed since the appeal, and before the record is brought up, a judgment cannot be affirmed; but the appeal may be dismissed with costs.</p>

In the year 1783, Oxley and Hancock merchants in Great Britain, appointed Richard Ponsonby their agent in this Country, authorising him to purchase tobacco for them on Potowmack river, and to draw bills of exchange upon them to enable him to make the purchases.

<p>Appeals — Determination at What Term. — An appeal may be determined in a District Court, at the term to which the record is brought up.</p> <p>Same — Record.—The appellee has a right to bring up the record.</p>

<p>Parol evidence may be admitted to prove, that an absolute deed was intended to operate as a mortgage. It cannot be laid down as a general rule, that parol proof to contradict a deed, is not to be admitted in any case, or that it is to be admitted in all cases.</p> <p>The reason why twenty years is generally fixed upon as the time, within which an application to redeem must be made, is not because the entry is taken away after that period, but because the right of redemption, after such a lapse of time, is presumed to have been abandoned. Slaves may be redeemed after five, and within twenty years.</p>

<p>Appeal — Lapse of Two Terms before Record Brought Up —Effect—After two terms of this Court have elapsed since the appeal, and before the record is brought up, a judgment cannot be affirmed; but the appeal may be dismissed with costs.</p>

<p>James Cocke, in April 1816, filed a bill in the superior court of chancery formerly bolden in Richmond, against Alban Gilpin and John F. Cocke, setting forth, that in 1805 he entered into partnership with the defendants, under the firm of Gilpin, Cocke Sf company; that Gilpin was the acting partner; that the business of the partnership has been discontinued; but that, while the partnership existed, Gilpin, with a part of the capital stock or funds of the partnership, purchased about 1100 acres of land lying near Russelville in the county of Logan and state of Kentucky, and fraudulently took a deed for the land in his own name. The bill prayed an account tjje capjtai stock and profits of the partnership, and a decree compelling Gilpin to convey to the plaintiff his share of the land, or, on a sale thereof, to account to the plaintiff for his share of the proceeds.</p> <p>Gilpin answered, admitting the copartnership, referring for the terms thereof to certain articles filed with his answer, and stating that the partnership was carried on from the 4th of April 1805 until about the 2d of September 1807. The land, he stated, he had purchased on his individual account, and he claimed it as his own.</p> <p>It was charged in the bill, and admitted in the answer of John F. Cocke, that he contributed none of the capital of the firm, and was entitled to no part of the profits. He disclaimed all interest in the land.</p> <p>The accounts were referred to a commissioner, and Gilpin was ordered to produce before the commissioner the books and papers of the firm.</p> <p>On the 11th of January 1819, commissioner Amos Ladd made a report, stating, that he was not then able to make such a report as would enable the court to make a final decree, but that, at the suggestion of the parties, he had made such a statement as would enable the court to decide upon the rights of the parties to the land.</p> <p>The cause coming on to be heard upon this report the 23d of June 1819, the chancellor was satisfied that the tract of land, though purchased by and conveyed to Gilpin in his own name, was paid for out of the funds of the copartnership. Gilpin was therefore held a trustee of the land for the benefit of the partnership, and it was declared that the said land, and the profits which had accrued therefrom, should be brought into the general account of the partnership property, for the common benefit of both partners as tenants in common, in like manner as if the land had been purchased in the name of the firm. The report was thereupon recommitted to the commissioner.</p> <p>The commissioner made another report the 28th of January 1820. This report was recommitted the 4th of February 1822, and another report made the 4th of March 1823.</p> <p>The plaintiff excepted, because there was no account of the outstanding debits and credits of the partnership.</p> <p>The cause came on to be further heard on the 26th of March 1825, when a supplemental report was made, and a decree entered according thereto. This decree was in the following terms :</p> <p>“ This cause came on this day to be further heard on the papers formerly read, and the report of commissioner Amos Ladd, made in pursuance of the decretal order of the 4th day of February 1822, with an exception thereto by the plaintiff, and was argued by counsel : on consideration whereof, and of the supplemental report of the 26th day of March 1825 now filed, the court, overruling the said exception and approving and confirming the said supplemental report, doth adjudge, order and decree that the plaintiff pay to the defendant Gilpin the sum of 5701 dollars 39 cents, with legal interest on 3361 dollars 70 cents, part thereof, from the 31st day of December 1822 until paid, and that the defendant Gilpin thereupon convey to the plaintiff Cocke one equal moiety of the Kentucky lands in the proceedings mentioned, by deed of bargain and sale with special warranty; but if the plaintiff shall not, within six months from the date hereof, pay to the defendant Gil-pin the said sum of money and interest, the marshal of this court, after having advertised the time and place of sale for six weeks in some one of the newspapers published in the city of Richmond, do expose to sale at public auction to the highest bidder, for cash, one equal but undivided moiety of the said Kentucky land, and out of the proceeds of sale, after defraying the expenses a t-tending the same, do pay to the defendant Gilpin the sum of money with the interest aforesaid, and the resi¿|ue( anyj pay t0 the plaintiff. And the court doth further adjudge, order and decree that the outstanding debts due to the late concern of Gilpin, Cocke & co. be equally divided between the plaintiff and the defendant Alban Gilpin. And it being very probable that the apparent balance due from the said concern of Gilpin, Coclce Sfco. is not a real balance, the court doth adjudge, order and decree that the costs of this suit be equally borne by the parties.”</p> <p>After this, process of revivor was issued at the instance of the defendant, against Armistead A. Green administrator with the will annexed of James Cocke, and also against Cocke's widow and heirs. The process was returned with an affidavit of service as to the widow and each of the heirs. The heirs being infants, the marshal was assigned guardian for them, to shew cause why the suit should not be revived. The record contained no return or affidavit of service on Green; but there was an entry that the scire facias awarded in the cause being returned executed on the defendants therein named, and no cause being shewn to the contrary, the court ordered that the suit be proceeded in to a final decree accordingly.</p> <p>The marshal of the court reported, on the 1st of June 1826, that after having advertised the time and place of sale as directed by the decree, he exposed to sale at the front door of the Eagle hotel in the city of Richmond, at public auction to the highest bidder, for cash, one equal but undivided moiety of 1133& acres of land in Logan county, Kentucky, when Alban Gilpin, being the highest bidder, became the purchaser thereof at 12J cents per acre; to wit, for S66J acres, equal to 70 dollars 81 cents. This was a very small proportion of the price paid for the land when Gilpin bought it.</p> <p>On the 19th of January 1827, the court ordered Green to render an account of his administration of Codeds estate, and an account of all the assets of the estate, and of the debts due from the estate.</p> <p>Under this order, commissioner Baker made a report on the 13th of October 1827, which was recommitted on the 9th of January 1828, and another report made the 9th of June 1S23. Afterwards the following decree was entered on the 25th of March 1829 :</p> <p>“ This cause came on this day to be further and finally heard on the papers formerly read, and the report of commissioner Baker of the 9th of June 182S, made in pursuance of the order of the 9th of January in the same year, and to which there was no exception, and was argued by counsel: on consideration whereof, as it appears by the last mentioned report, and the report of the same commissioner on the 13th of October 1827, to which there was also no exception, that legal assets have come to the hands of Armistead A. Green administrator as aforesaid, more than sufficient to pay the sum of 5641 dollars 16 cents, with legal interest on 3061 dollars 71 cents, part thereof, from the 31st day of December 1822 until paid, that being the sum due to the defendant Gilpin after crediting the net proceeds of the sale of the land mentioned in the marshal’s report of sale of the 1st of June 1826, and the defendant’s costs in this suit; the court doth therefore adjudge, order and decree that the plaintiff Armistead A. Green do, out of the estate of the testator in his hands to be administered, if so much thereof he hath, but if not, then out of his own estate, pay to the defendant Alban Gilpin the said sum of 5641 dollars 16 cents, with interest after the rate of six per centum per annum from the 31st day of December 1822 until paid, and his costs by him about his defence in this behalf expended.”</p> <p>A writ of fieri facias having issued upon this decree, Green gave a forthcoming bond with sureties, which was forfeited, and then there was a decree awarding execu- . ° tion thereupon.</p> <p>Green, as administrator with the will annexed, of Cocke, presented a petition praying an appeal from the various decrees before mentioned, and the appeal was allowed.</p>

<p>An appeal may fee tie. te.rmiued in a district court, at the term to which the recordisbro’t up.</p> <p>The appellee has aright to biing up the record.</p>

Upon a motion for an injunction to stay the proceed ings on a judgment obtained at the last term held for this district, by Mary Hawkins, against the said Peter Kam-per, under an act of assembly, entitled, “ an act reducing “ into one, the several acts concerning the establishment, “ jurisdiction, and power of district courts.” The court is of opinion, that the said question should be adjourned to the General Court for novelty and difficult}', as to the constitutionality of…

<p>After two terms of this j^psed arfnce the appeal, and before the record is brought up, a judgment cannot be affirmed; btír fh® appeal may be dismissed with costs.</p>

THIS was a motion for a writ of supersedeas to -a jU(%ment of the District Court of Staunton. The following appeared to have been the proceedings in the cause. The capias having been returned in an action ®f debt “ executed on the defendant, and Lewis A. Pauly “appearance bail;” at the rules, in January, 1806, a common order was entered against them, which, in February, 1806, was confirmed.

<p>Appellate Practice — Appeal Taken Up at First Term— Notice. — Notice ought to be given of an,intention to take up an appeal at the first term of this Court in a Chancery case.</p> <p>Same — What Appeals Taken Up at First Term. — It is the practice of the Court to take up at the first term, appeals in cases where th ere is no dispute; but this rule does not apply to Chancery cases.</p>

<p>i. Demurrer to Evidence — Joinder—When Not Compelled.* — Although, upon a demurrer to evidence, the testimony adduced on both sides ought regularly to be stated, yet, if it be parol and contradictory, the party tendering the demurrer cannot, after exhibiting his testimony, compel the other party to join in demurrer; for this, in effect, would be to enable the demurrant to confer credibility on his own witnesses, or at least to carry their credibility tobe adjudged by an improper tribunal; the Jury, and not the Court, being exclusively judges of credibility.</p> <p>2. Evidence — Award Pendente Lite, † — An award made pendente lite, cannot be given in evidence upon the plea of non assumpsit.</p> <p>3. Pleading — Plea of “Arbitrament and Award” — Effect. —The plea of “arbitrament and award” (in so many words) is a mere nullity, and no evidence should be received to support it, notwithstanding the plaintiff replied generally.</p> <p>4. Appellate Practice — Reversal of Judgment — Admis= Sion of improper Evidence.‡ — A judgment ought not to be reversed on the ground that the Court, at the instance of the party against whom it was rendered, admitted improper evidence, or erroneously compelled the other party to join in a demurrer to evidence.</p>

<p>Judgment — Amendment at Subsequent Term,* — A District Court has no power or jurisdiction to reverse, alter or amend a judgment given at a former term of the said Court, which had been entered on the order book, and signed by a Judge in open Court.</p> <p>{Jabeas Corpus † — Removal of Cause Thereby. — Quaere. Where a cause is removed by habeas corpus, from an inferior to a superior Court, whether the proceedings ought to be commenced de novo, or carried on from the stage at which they stood in the inferior Court?(1)</p>

IT % LLEY broughtanaction of deblagainst Baird in the Hustings Court of Petersburg.

<p>Paiten and May brought an action of debt in the Superior Court of law of Frederick county, against Bent, on a note executed by the latter to the former, for g 284, with interest till paid. The note was dated, June 21st 1796; at wnieh time the legal rate of interest was only 5 per cent. On the 7th day of October, 1819, the defendant (Bent) appeared and acknowledged the plaintiffs’ action against him, for the sum of g>284 with interest thereon from the 21st of June, 1796, until payment and the costs. The record proceeds to stale “ Tliercfore.it “ is considered by the court that the plaintiffs recover “ against the said defendant the said sum of g 284 with “ interest thereon to be computed after the rate of six <! per centum per annum from the said 21st day of June, “ 1796, and their costs by them about their suit in tins bete half expended : and the defendant in mercy, &c.”</p> <p>Bent appealed to this court, assigning as error, that a higher rate of interest was allowed by the judgment, than the law authorised at the time the note was executed.</p>

<p>No inferior court of common law has the power of reverting, altering or a-ittending it* own judgments after the term at which they v/cve entered*</p> <p>Quaere. Where a came is removed by ha-beas corpus from an inferior to a superior court, Vhe'her the proceedings ought to be commenced de m-'jo, or cat tied eg from the stage at which they stood in the inferior court Í</p>

<p>Joint Appeal — Executors and Legatees — Security.*— Where executors and legatees jointly appeal, the legatees (being in possession of the property in dispute) may lie ruled to give security for the prosecution of the appeal.</p>

This was an action of debt, brought in the District Court of Northumberland, by the appellees against the appellant.

<p>Tó what extent an agent may bind his principal. If in-consequence of a notorious agency, the agent is in the habit of drawing bills, which the principal has regularly-paid, this is such ah affirmance of his power to draw, that the principal will be bound to pay other bills, though the-agent should misapply the money raised by such bills.</p>

George Walton made his will, containing among other provisions a clause, bequeathing to his wife Martha, about four thousand acres of land in Kentucky, one half of a mill on Meherrin River, with about six hundred acres of land adjoining it, with all the negroes, debts, stock, &c., not previously devised, “to live upon, pay my debts, and dispose of among my children and grand-children, as she pleases, and should she find it necessary to sell, all or either of the lands, to…

ANTHONY brought an action of debt against Walter Chisholm, administrator of John Chisholm,' dec’d in the county court of Louisa;....at the November term 1800, the defendant pleaded payment,* upon which issue was joined ;....at March term following, he moved the court for leave “ to amend his plea, and plead fully administer- “ ed, and to continue the cause till the next term,” which motion for a continuance* was over-ruled by the court j and the cause beb;g tried at the same…

THIS was a revived appeal from a decree of the Richmond Chancery District Court, in a suit brought by the v. . * ! n •» 7 ° J appellees against the appellant's testator.

<p>If it is agreed betW!'cn » monea p-or & mongagee, that, in casa the pa mZy ásej¡ th* property, h, m cons<( ^ of^he seUs" withoutproof fraud, he ye ac“u“^* mortgagor for the sur» ^ lii® ^;ch ¡¡«¡Is above amount 0„ f<nch' su^ plan until payment ¡hut tiot&-rprofits, -unless he ap pea’. to have received them previ* out. to ¡he sale, nor for the value of the property at any *nbs¿, queut tim«.</p>

<p>Wills — Money Directed to Be Laid Oat in Slaves — Annexed to Devise of Land in Tail — Effect.— Money directed, by will to be laid out In slaves, and annexed to lands devised In tall by the same will, are to be considered as slaves, and will go with the land in tall.</p> <p>Husband and Wife — Right of Husband to Wife's Slaves in Remainder after Her Death.* — A feme sole entitled to slaves In remainder, or reversion afterwards marrying', and dying before the determination of the particular estate, the right rests in the husband.</p>

<p>An action may be maintained by a creditor of a deceased person upon the bond given by the executor for performjng the duties of his office; but the plaintiff must first fix a devastavit against the executor, before he can resort to this remedy against the sureties.</p>

<p>Mortgages — Sale by Mortgagee According to Agreement —Liability for Profits.* — If it be agreed between a mortgagor ana mortgagee, that, in case the debt be not paid, the mortgagee may sell the property, and in consequence thereof, he sells, (without proof of fraud,) he is accountable to the mortgagor for the surplus of the sum, for which he sells, above the amount of the debt, with interest on such surplus until payment; but not for profits, unless he appears to have received them previous to the sale, nor for the value of the property at any .subsequent time.</p>

Elliotte brought an action of trespass on the case, against Parker, of debauching his daughter. There was a demurrer to the declaration, because there was no positive averment of the injury, and because the action should have been trespass, and not case. The court below decided against the demurrer, and the jury found a verdict for the plaintiff.

<p>Equitable Relief — Transaction to Defraud Creditors.*— where a transaction between a debtor and his creditor, is intended by them both to defraud the ■ other creditors of the debtor, but the latter, under all the circumstances of the case, is not so culpable as the former, it would seem that a Court of Equity ought not, altogether, to refuse relief to the debtor, but to apportion the relief granted to the degree of criminality in both parties, so as, on the one hand, to avoid the encouragement of fraud, and on the other, to prevent extortion and oppression.</p>

Smith brought an attachment against the estate of Pearce an absconding debtor. Pearce not appearing to defend the suit, Smith’s counsel moved the court for an order of sale of the attached effects; and that the amount of Smith’s claim should be paid him. And while the motion was before the court, counsel for Pearce offered special b^il, and filed a plea.

This was an action of debt, brought in the District Court of Northumberland, by the appellees against the appellant.

This was an appeal from the District Court ■of Dumfries, in an ejectment brought by the appellee.

<p>Appeal from an interlocutory decree in chancery denied, because the party asking it might and more properly ought to apply to the chancellor, to suspend the effect of the decree, under the act of 1827-8. c. 25. § 4.</p>

This was an action for malicious prosecution, brought by J$sse Tinder, against Peter Guerrant Sen. Henry Huff, Young Jarratt, Leonard Wilson, and Peter Guer-rant jr. The declaration sets forth three… Held: that the indictment being found “not a true bill,” affords inference of want of probable cause. This applies only to malicious prosecutions before grand juries; since it affords no presumption even, of what passed before the committing magistrate.

<p>Darlington exhibited his bill against John M’ Coole the younger, in the superiour court of chancery of Winchester, setting forth, that in May 1802, he married Catharine a daughter of John Ml Coole the elder, of Frederick county. That, before the marriage, and in contemplation thereof, M’ Coole the father wrote him a letter, wherein he promised him-a place called The Falling Waters, being a piece of land parcel of the tract on which Ml Coole lived, and though this letter was lost, its contents could be proved; and that, upon his mentioning, at breakfast, the second morning after the marriage, in the presence of his father-in-law and of the family and of the defendant among the rest, that he had to go to Front Royal (in another part of the same county), to confirm a contract he had begun with one Vanmeter for a tannery, in which business he intended to engage with prospect of great advantage, the father-in-law said, he need not do that, for he would give him the piece of laud called The Falling Waters, to be his property (describing the boundaries), and moreover, that he and his son John would help him to improve it. That JVC Coolers declared motive was, to prevent his daughter from removing to a distant residence. That, in consequence of these promises, Darling-ton relinquished his beneficial contract with Vanmeter, for the Front Royal tannery; was shortly afterwards put by his father-in-law in possession of The Falling Waters, being a piece of land, designated by metes and bounds, containing about thirty-five acres; built dwelling houses on it, sunk vats for a tannery, and improved, held and enjoyed it as his own, until JVC Coole, his father-in-law, died in 1815, having by his will devised it to his son, the defendant. And that, though JIT’ Coole, the father-in-law, had never made him any conveyance of the land according to his promise and agreement; yet he had laid off the boundary lines, in the presence of the defendant, his son and now his devisee; and had often declared his willingness to make such conveyance.' The bill prayed a specific execution of the alleged promise and agreement of J\C Coole, the father, to give and convey the land to Darlington; and that JVC Coole, the son and devisee, might be compelled to convey it accordingly.</p> <p>The defendant, in his answer, denied all the allegations of the bill, both as to the promise of M'Coole, the father, before Darlington's marriage, and the agreement after the marriage, to give him The Falling Waters. He said, that his father, shortly after Darlington’s marriage, told him he might have the land in question, as a temporary accommo^at*on ^01’ h's iamily, assisted him in building on and improving it, and suffered him to enjoy it, during his own life; but neither made him any gift of it, nor ever intended to do so.</p> <p>It was also alleged in the answer, and proved, that, upon Darlington's marriage with M' Coole's daughter, his father-in-law gave him such personal property as he advanced to his other daughters on their marriage: that he afterwards contributed the greater part of the labour and expense of the buildings (which were log-houses) and the other, improvements, put on The Falling Waters: that Darlington's first wife, the daughter of M'Coole, died in 1805, leaving one daughter, who was immediately taken into her grandfather’s family, and treated and brought up as one of his own children, and was provided for by her grandfather’s will, equally with his own daughters: and that Darlington had married a second wife, by whom he had several children.</p> <p>Of the letter, alleged in the bill to have been written, be.fore Darlington's marriage, by M'Coole, the father, to rhim, promising to give him The Falling Waters, there was no proof whatever. Neither was there any positive proof of the agreement alleged in the bill, to have been made, at breahfast, the second morning after the marriage; and the members of the family, being examined as witnesses, declared they had heard nothing of the kind. But several witnesses deposed, that M’ Coole, the father, had pointed out the boundaries of the land, and frequently said he had given it to Darlington; and that Darlington had held and enjoyed it as his own, during M' Coole's life. Vanmeter deposed, that, having a valuable tannery at Front Royal, with a large stock on hand, he had entered into a contract with Darlington, before his marriage, to carry on the business in partnership, each to contribute equal stock, and to carry on the business at joint expense and for joint and equal benefit; that he thought, at the time/it would be a very profitable business; that Darlington had a tract of land, by the sale of which he could have contributed his share of in-put stock, by the time it would have been wanted, because of the large stock Vanmeter had on hand; but before Darlington’s marriage, he (Vanmeter) received a letter, purporting to be written by John M’ Coole the elder, though he did not know that it was in fact written by him, being unacquainted with his handwriting, in which he stated, that he had himself made Darlington an advantageous offer, and urged Vanmeter to release him from the contract concerning the Front Royal tannery; which Vanmeter, in consequence of that letter, agreed to do, though very reluctantly. And Lewis M’ Coole, a son of the elder M’ Coole, deposed, that Darlington, shortly after his marriage went to Front Royal; and the witness was told by his father, that Darlington had made a contract with Vanmeter, provided he could furnish a sufficient sum of money to pay for half the stock of the tannery on hand; his father said, he had not the money to furnish him; he hated to part with his child to go that distance; and he thought it would be better to give them a piece of land on The Falling Waters. His father, after the death of Darlington’s wife, said he had never made him a deed, and never intended it; but he would probably give the land, or the value of it, to his child.</p> <p>The chancellor dismissed the bill: and Darlington appealed to this court.</p>

This was an appeal from the High Court of Chancery. The case was this : The appellee and Wilcox having- purchased two entries for land, one of 400 and the other of 403 acres, obtained patents for each of them in June 1764. In 1768 Wilcox agreed with Donaldson to sell him these two tracts of land for £12$, hut no conveyance was made.

Nancy Owle and Betsy Owle, infants, by Daniel Vandewall, their guardian and next friend, brought suit in the Superior Court of Chancery for the Richmond District against William Price, administrator with the will annexed of Charles Price, deceased, Archibald Blair and others; stating in their bill, that Charles Price, their father, made his last will and testament, dated the 18th of June, 1797, and recorded the 3d o± July ensuing, in which he expressed his desire that…

<p>Money directed by will to be laid out in slaves, and annexed to lands devised in tail by the same will, are to be considered as slaves, and will with the land in tail.</p> <p>A feme sole entitled to slaves in remainder, or reversion, afterwards marrying, and dying before the determination of the particular estate, the right rests in the husband.</p>

George Keith Taylor adm’r of Holloway, brought a bill in the Chancery court of .Richmond setting forth, that Holloway and one Hanserd were merchants and partners in Petersburg-. That they had fallen into peculiar difficulties and had become the prey of usurers.

This was an action of debt brought up by the appellee, in the District Court of King and Queen : the declaration is in common form, upon a bond — plea payment.

This was a motion made in the circuit court of Scott county, by M’Kinney, late high sheriff of that county, against Sailing, his deputy, for the amount of a judgment, which the commonwealth had recovered against M ’Kinney in the general court, on account of taxes collected by Salling, which he had failed to pay into the treasury.

<p>Accommodation Paper — Sale of — Usury*—Case at Bar.— Negotiable notes made by fl. & H. indorsed by A. for the accommodation of II. & H. to be sold in market, purchased by B. from a broker who sells them for II. & H. at a greater discount than 6 per cent, are not usurious in the hands of B.. without proof that B. knew the facts. Qusere.</p>

This was an ejectment tried in the General Court The parties agreed a case, in effect as follows, viz. ‘ That Joseph Mayo being seised of the lands in question at the time of making his will, as well, as at the time of his death, did, on the 27th day of May, 1780, duly make and publish his last will and testament, whereby, after sundry specific bequests of land and personal estate, he earnestly requests his executors to petition the General Assembly for leave to emancipate…

This was an action of covenant, brcught by James Johnston against William Long and William Ward, in the County Court of Greenbrier.

<p>THIS was an appeal from the District Court of Dumfries, in an ejectment brought by the appellee. The jury found a special verdict, “ that Sir William Berkley, Governor of Virginia, granted to Robert Hoxosen, the lands contained within a patent bearing date October 21st, 1669, whereof the lands in question are a part, lying within the proprietary of the Northern Neck, which patent they find in these words: to all &c.” the patent is in the usual form, granting 6000 acres of land, in consideration of the transportation of a number of persons into the colony, and is abbreviated thus, “ to have &c. yielding, &c. provided &c.”—They find the act of Assembly passed in the year 1736, entitled, “ An act for confirming and better securing the titles to lands in the Northern Neck, held under the right honorable Thomas Lord Fairfax, Baron of Cameron, in that part of Great Britain called Scotland. Also the act passed in the year 1748, entitled, “ An act for confirming the grants made by his majesty, within the bounds of the Northern Neck, as they are now established. That on the 13th of October, 1669, Howsen, being seised of the lands contained in the aforesaid patent, assigned and conveyed all the lands aforesaid therein contained, to John Alexander, by deed poll, recorded in Stafford Court which they also find in hese verba.</p> <p>“ That John Alexander entered, and was seised and possessed as the law requires, and by a paper purporting to be his will, devised 500 acres of the said land to John Dry, 200 to Eizabeth Hoomes, and the residue to his two sons, Robert and Philip, and their heirs.</p> <p>“ That after the death of the said John Alexander, his son, and heir. at law, Robert, by a deed executed in February, 1690, confirmed to his brother Philip the lands left him by the said will, being a moiety of the land in question.—That in February 1693, the said Philip executed a deed to his brother Robert, of all his share and interest in the land contained in the above-mentioned patent, with a reservation of 500 acres, which are no part of the lands in question, and neither Philip nor his heirs, nor any claiming under him, have since claimed any part of the land in question.</p> <p>“ That the said Robert Alexander, after the said conveyance from his brother, entered into the land in the declaration mentioned, being part of the land contained in the aforesaid patent, and was seised and possessed thereof as the law requires, and so continued till his death, which happened before the 1st of June, 1704, having previously thereto made his will, bearing date the 22th of December, 1703, whereby he devised to his sons Robert and Charles the lands in question in fee simple equally to be divided, which will they find in hcec verba.</p> <p>C£ That the said Robert left two sons, Robert his eldest, and Charles, who died intestate and without issue. That Robert, after the death of his brother, was seised and possessed as the law requires, of all the land in question, and so continued until his death, which happened in the year 1735, leaving two sons, John his eldest, and Gerard—also two daughters, Sarah and Parthenia; that by .his will dated in 1735, he devised several parcels of land to his said sons and daughters, and the lands in question, comprehended within the description of the residue of his real estate, to his sons John and Gerard equally to be divided in tail,” which will is also found.</p> <p>That the said John and Gerard entered into the lands in question, and were thereof seised and possessed as the law requires, and that John continued so seised and possessed until the time of his death.”</p> <p>“ That they sued out a writ of ad quod damnum, in order to deck the intail of the said lands, and an inquisition being found thereupon, they, by a deed of bargain and sale conveyed the said land to T. Dade, who afterwards re-conveyed the same in fee simple;”</p> <p>“—Which writ, inquisition, and deed are found. Thai there were other intailed lands adjoining, not included in the inquisition; that no lines were shewn to the jurors or surveyed in their presence—no consideration paid by the said Dade, and that 'the inquisition was fraudulent.</p> <p>“ That an act of Assembly was passed, and obtained the royal assent, for docking the intail of Gerard’s part of the said land, which was an undivided moiety of the lands in question ; that no partition of the said lands was ever made between the said, John and Gerard, or any claiming under them.</p> <p>“ That John being so seised and possessed, did, in his life-time, give to his son Chares his undivided moiety of the said land, and delivered him the possession thereof. That he died in 1764, leaving issue six sons, of whom the said Charles, (lessor of the plaintiff) was the eldest, and by his will made the 16th of October, 1763, devised to his said son Charles, the lands in question by the following clause: e Also. give to my son Charles all things already given him, which he has now in possession/</p> <p>“ That the said testator John, in his life-time, conveyed to the lessor of the plaintiff, so much of the land in question as lies to the westward of Four-mile-run, laid down in the survey annexed/*</p> <p>They also find the act of Assembly for settling the titles and bounds of lands.</p> <p>They find a grant to Robertson from the proprietor of the Northern Neck, bearing date the 3d of March, 1730, the bounds of which they ascertain, by reference to the survey, and is the land in question.</p> <p>“ That Robertson possessed the said land from the year 1733, to the year 1743, when an ejectment was served by John Alexander, for so much of the land as was included in Howsen’s patent, and he recovered a judgment in 1751, till which time Robertson continued in possession.</p> <p>“ That James Robertson recovered from Robert Alexander, and was put into possession of the lands contained within his grant by writ of possession in 1765.</p> <p>“ That Robertson died in 1768, leaving issue a daughter Jenet, wife of Birch, the defendant, to whom Robertson by his will devised the land contained within his patent.</p> <p>“ That the land in question is included within Howsen’s and Robertson’s grants, and if, &c.’*</p> <p>The District Court gave judgment for the plaintiff, from which the defendant appealed.</p>

This was an appeal from the High Court of Chancery. Upon the marriage of Mrs. Hern, formerly Mrs. Cook, with her former husband William Roane, an agreement was duly executed between them, which contained the following covenants ; 1st. That the two parties should, during their coverture, hold, jiossess, and enjoy all such rights and privileges as belonged to them, in as full and ample a manner and form, as if the agreement had never been made. 2d. That if the said William…

The case was this: James Ellis and Esther his wife, formerly Esther Thompson, William Caifa and Nancy his wife, formerly Nancy Davis, David Sawyer and Rhoda his wife, formerly Rhoda Davis, and Catherine Davis, Sled their bill In the county court of Prince Edward, against Andrew Baker executor and trustee of Catherine Baker deceased, setting forth the following facts s that in the year 1811, the said Catherine Baker owned a number of slaves mentioned by name, and being about…

<p>This was an appeal from the High Court of Chancery. The case was this :</p> <p>The appellant Wilcox having purchased two entries for land, one of 400 and the other of 403 acres, obtained patents for each of them in June 1764.</p> <p>In 1768, Wilcox agreed with Donaldson to sell him these two tracts of land for 125/., but no conveyance was made. Wilcox being about to leave this State, sometime prior to 1769, placed In the hands of Don■aldson as much money as would be sufficient to dis-discharge the arrears of quit-rents then due on the land, which Donaldson promised to apply to that purpose. John Cox, in December 1767, petitioned the General Court for the above two tracts, as being lapsed for non-payment of quit-rents, and want of cultivation; and in June 1772, judgment was rendered in his favor, and patents issued in July 1774 to Donaldson, assignee of Cox.</p> <p>On the 8th of August, 1769, Donalson informed Wilcox of the pendency of the above petitions, and recommended it to him, to attend the trial, and defend them. But on the 28th of July preceeding, he, Donaldson, had purchased the right of Cox, if he should succeed, at the price of 150/., and took his bond fora conveyance. Of this purchase, Donaldson takes no notice in his letter of August.</p> <p>Cox not having pursued his judgment, and obtained a patent within six months, Wilcox filed a caveat for this cause, in August 1774, against a patent issuing upon Cox,s judgments ; in April 1783, he obtained a judgment in his favor, which being certified, patent issued to him for the two tracts.</p> <p>In 1776, Calloway purchased the above land from Donaldson, received a conveyance for the same, and made valuable improvements on it.</p> <p>Wilcox filed his bill against Calloway only, praying that he might be decreed to deliver to him the possession of the lands in question, and for general relief.</p> <p>The defendant, in his answer, states himself to be a purchaser for valuable consideration actually paid % that he had no notice of any fraud or Improper conduct in Cox, or Donaldson, nor did he ever hear of any dispute respecting the title till the year 1782, long after his purchase.</p> <p>There were many depositions taken in the cause8 and on hearing, the bill was dismissed without prejudice ; the Court being of opinion “ that the defendant was a purchaser of the land in question for valuable consideration, not appearing to have been guilty of any fraud, or, if any other was guilty of it, to have had notice thereof, or not being, or claiming under a like lite pendente purchaser.”</p> <p>• From this decree Wilcox appealed.</p>

THIS was a suit originally brought in the District Court of Dumfries, by the appellants against the appel-lees, on an executor’s bond.

This was an appeal from a decree of the High Court of Chancery. The case was this.

THIS was an action of detinue brought by Alderson ■os. Biggers, for sundiy slaves, in the county court of Lu-nenburg.

<p>Demurrer to Evidence— Unconditional Verdict.* — On a demurrer to evidence, an unconditional verdict is not error, provided the demurrer be after-wards determined by the Court,</p> <p>Detinue — Verdict -Alternative Value.† — In detinue the Jury may exceed the prices of the slaves laid in the declaration.</p> <p>Deeds-Relinquishment of Rig-ht by Grantee — Parol Evidence — Under particular circumstances, parol evidence of continued possession on the part of the grantor and the grantee’s acknowledgment of his right maybe given in evidence, for the Jury to presume against a deed, that the grantee has relinquished or reconveyed his right.</p> <p>Detinue — What Evidence Sufficient to Prove Possession. — Semble, that in detinue, where a demurrer to evidence states that the defendant in support of his right offered a bill of sale, and no other evidence of the defendant’s possession is mentioned, that is sufficient to prove the said possession.</p>

Lewis Ashby, of Frederick county, made his will on the 20th of March 1806, whereby he devised as follows : “ First, The tract of land I now live on, on Shenandoah river, together with the tract whereon my mill is situated, I desire may be sold at such time and upon such terms, by my executors, as they in their judgment may think will be most to the advantage of my heirs. “ Secondly, The money so arising from the sale of the above land, it is my will and desire may be applied…

This was an action of debt by Ware, executor of Digges, against Croxton, executor of Dunn, in the District Court of King and Queen, on a judgment of the County Court of Essex. The declaration set it forth as a judgment against William Dunn, administrator of William Young, jun. deceased, rendered at August quarterly term, 1788, “as by the transcript of the record and proceedings thereof aforesaid here in Court produced manifestly appears.” The defendant pleaded, 1.

<p>This was action of debt brought by the appellee, in the District Court of King and Queen: the declaration is in common form, upon a bond—plea payment. At the trial, the defendants tendered a bill of exceptions, stating, that the plaintiff offered a writing to the jury as evidence in support of the declaration, to which there was no seal, but a scroll: and the Court permitting this writing to go to the jury, the defendants excepted.</p> <p>Also the defendants offered in evidence, sundry receipts, to a greater amount than the debt in the declaration mentioned, and bearing date before the institution of this suit: but the plaintiff in opposition thereto, offered in evidence a bond of the defendants, dated an the same day with that mentioned in the declaration, but payable before it, and given for a larger quantity of tobacco; on which bond no suit had been instituted, and on this bond, some of the receipts were said to be credited; and the plaintiff insisting that not only those receipts, but such as were not indorsed thereon should be applied to the credit of that bond, the defendants objected to its going in evidence to the jury, urging that it was not their deed, and was given for an usurious consideration. But the Court after examining one of the attesting witnesses, who proved the execution of the bond, permitted it to go as evidence to the jury, in opposition, as well to the receipts which were not indorsed on the bond, as to those which were; to which opinion also the defendants excepted.</p> <p>The indorsements on the bond, agree precisely with some of the receipts, as to their amount, and are stated to be in “ part of this bond.,’’</p> <p>Verdict and judgment for the plaintiff, and appeal.</p>

THIS was a suit brought in the General Court by William Berkeley, successor of Jacquelin Ambler, late treasurer of the commonvrealth, against William Leftwich, 'A. Moseley and J. Callaway, and three other persona, as securities for Gross Scruggs, late sheriff of Bedford.

<p>Joint and Several Bond — How 5uit rUi.-:L Be Bi-OESght Thereon.*- — A suit on a Ioint and several bond, mus the brought either against all the obligors jointly, or one ot them singly: and not against any Intermediate number; and if an error in this respect appears on the record, the judgment will be reversed, notwithstanding such error was not pleaded in abatement.</p>

<p>Marriage agreement. Construction of.</p>

<p>The decrees from which these appeals were allowed, were made by the circuit court of the town of Lynchburg. The causes were argued upon the merits by Grattan for the appellant, and Robinson for the appellees. But there was no point adjudged in them which deserves to be reported, except that stated in the following opinion.</p>

<p>This was a suit in Chancery brought in the County Court of Fauquier, b3' William Heale against Charles Chinn, Rawleigh Chinn, and John Chinn, executors of Charles Chinn, deceased.</p> <p>The object of the bill, was to compel a conveyance of a tract of land sold to the plaintiff by the defendants, under the will of their testator, “as containing two hundred acres,’’ and an additional conveyance of part of the adjoining land, (held by the defendant Charles Chinn,) to make up a deficiency- of quantity in the said tract, according to- an alleged agreement between the defendants and the plaintiff. It appeared from the bill, answer and exhibits, that the plaintiff held (by deed from George Heale, his father, who bought of Rawleigh Shearman) two hundred acres of land devised to the said Shearman by the will of Rawleigh Chinn, deceased; adjoining to which lay the land sold as aforesaid by the defendants to the plaintiff; being other two hundred acres devised by the same will to Br3'an Stott, under whom the testator of the defendants claimed. The several devises to Rawleigh Shearman and Bryan Stott were of so many acres of land out of a larger tract in Prince William County, (afterwards Fauquier,) and not by metes and bounds. The plaintiff contended that Shearman’s land was laid off for him (after Rawleigh Chinn’s death) in a manner corresponding with certain lines represented in a plat and certificate of survey made by a certain James Routt by order of the Court, and in ptesence of the parties, as the surveyor certified; (which order was 64 made, however, on the plaintiff’s *motion before his bill was filed;) that a certain green line, E. F., (designated in the said plat,) divided the same from the land devised to Bryan Stott, which lay on the west of that line, and was bounded as described therein; according to which plat there was a deficiency of quantity in the last-mentioned tract.</p> <p>The plaintiff farther alleged that a private survey, by consent of parties, and in their presence, was made before he gave his bond for the purchase-money; by which survey the dividing line was run, nearly, if not entirely, as represented by the said green line and letters E. E., and (as he conceived) was settled without the necessity of further dispute; but accordingly to that survey the land fell short about 49 acres; that he then proposed to purchase from the defendants the land which had been devised to Bryan Stott, at 20s. per acre, agreeable to the said private survey ; to which he was answered by the defendants that, if he would take 200 hundred acres at that price, he might have it; and the difference in quantity should be made up from the adjoining lands.</p> <p>The defendant Charles Chinn in his answer declared he had understood that after the death of Rawleigh Chinn the whole four hundred acres above mentioned were laid off together in one undivided body; that he had never understood there was any division of the said land between Shearman and Stott; that he had searched several offices to find the said division, but never could; that, in a deed from Rawleigh Downman (who. claimed under William Downman the purchaser from Stott) to Charles Chinn, the defendants’ testator, the land devised to Stott was particularly described; that the boundaries therein mentioned contained two hundred acres, or rather upwards; and the defendant supposed, if there ever was a division, it must have been made according to the lines described in that deed. He contended that the plaintiff now had the whole title of Shearman and Stott; and if there was a deficiency in the whole quantity of four hundred acres, it should be made up 65 *to him out of the residue of Rawleigh Chinn’s tract, and not out of the estate of Charles Chinn. He denied that he ever agreed to make up any deficiency of the said two hundred acres out of his own land, or any now in his possession, averring that the bond for a conveyance referred to in the bill would show what land he was bound to convey; beyond which, he was advised he was not bound.</p> <p>The bond last mentioned, dated September 29th, 1788, was from Charles Chinn, Rawleigh Chinn, and John Chinn to the plaintiff. They bound themselves “executors of Charles Chinn, deceased,” jointly and severally, in the penal sum of five hundred pounds; subject to a condition reciting that “whereas, at a public sale of the land belonging to the estate of said Charles Chinn, the said William Heale purchased a lot thereof containing two hundred acres, being the land which Charles Chinn, deceased, purchased of Rawleigh Downman, which land had been willed by Rawleigh Chinn to Bryan Stott, and by the said Stott sold to William Downman, the said Heale having, of this date, passed his bond for two hundred pounds, the purchase money, now if the above bound Charles Chinn, Rawleigh Chinn, jun., and John Chinn convey to the said Wiiliam Heale, by good and sufficient deeds of conveyance the aforesaid land, to contain two hundred acres, whenever the same shall be required of them, then the above obligation to be void,” &c.</p> <p>Before the answer was filed, a decree nisi was entered against all the defendants; and at May Court, 1796, (the record says,) “came as well the complainant by his counsel, as the defendants by their counsel, and the said defendants filed their answer to the bill aforesaid, which said answer is in these words, to wit: The answer of Charles Chirm, one of the defendants, to a bill of complaint exhibited against him and others, executors of Charles Chinn, deceased, &c. ; to which answer of the said defendant the complainant replied generally, and commissions were awarded the parties to take depositions.”</p> <p>^Sundry depositions were taken; partly for the purpose of endeavouring to explain the written contract, by parol testimony; and partly relating to the lines and quantity of the land sold. The plaintiff, by the deposition of a certain William Metcalf, substantially maintained his allegation concerning the private survey, made by consent of parties, in September, 1788, the day before the contract was concluded ; from which survey it appeared that, after allowing him the full quantity of two hundred acres for Shearman’s tract, there would remain only 146 acres in Stott’s tract.</p> <p>The County Court, on the 27th of March, 1798, decreed and ordered that the complainant recover of the defendant thirty-six three-fourth acres of land to be laid off out of his lands adjoining the complainant, and appointed commissioners to lay off the same; and, upon their report, decreed “that the defendant convey to the complainant by good and sufficient deeds in fee-simple the lands and premises in the bill mentioned, and in the plat and survey also mentioned, and described by the green letters B}. F., &c., and the lands described in a survey made by Charles Kemper in this cause,” (containing thirty-six three-fourth acres) “bearing- date the 8th day of June, and referred to in the report of the commissioners of the same date, and that they pay to the complainant his costs.” This decree was affirmed by the Superior Court of Chancery for the Richmond District in May, 1804; upon an appeal taken (as the Clerk stated in the transcript of the record) by the defendants; but upon bond and security given by Charles Chinn only; from which decree of affirmance the “appellants” appealed to this court.</p> <p>We contend there was no dividing line; and that Heale is not entitled to more than the quantity of land found in Stott’s tract. But if he were, the decree is erroneous in having been entered against one defendant only, and subjecting him to make good the whole loss. The bill was taken for 67 confessed as to all the ^'defendants: the decree nisi does not appear to have been served upon any oi them ; and one only answered. Without any reference to the merits, the decree ought therefore to be reversed. But, upon the merits, the plaintiff was entitled to no relief; at any rate, not to the relief afforded him. No specific tract of land was contracted to be substituted for Stott’s land, in case a deficiency: the only remedy was by a suit at common law for damages. An attempt is made to set up a parol agreement, (to makeup the deficiency in land,) which, by the statute of frauds is not admissible, unless some fraud or mistake had been committed in drawing the bond. But the bill does not charge an agreement differing from the bond; nor, in fact, is any such parol agreement proved.</p> <p>One executor, as the answer imports, answered for all. They all appeared by counsel, and put the fate of the cause upon that answer, (a) The act of co-defendants in recognising the answer of one, as their own, makes it obligatory upon them, (b)</p> <p>The statute of frauds has nothing to do with this case. The appellee relies on the written contract; and that stipulates for two hundred acres, but does not mention how the deficiency is to be made up. In such cases, it should be in kind, if possible; lor this is most consonant to justice, and the intention of the parties, (c)</p> <p>As to the pretence that no dividing line existed, and that, in fact, there was no deficiency; the testimony sufficiently refutes it. Could it have entered into the minds of the parties that one was selling, and the other buying, an undivided portion of the estate?</p> <p>The answer itself is in terms that of one defendant only. The Court must, therefore, understand the expression in the record that it was the answer of “the defendants,” as a clerical error.</p> <p>The authorities referred to by Mr. Botts have no application. *The case from Washington was of one defendant coming in, and joining in defence. In Pollard v. Cartwright, the husband’s answer was received for himself and wife; and in Preelands v. Royall the answer of one joint partner ‘ ‘in the name of both’ ’ was deemed sufficient.</p> <p>But, whether the answer was that of all the defendants, or of one only, the decree was wrong; being against the lands of Charles Chinn individually; and not against the lands of the estate. If it was the answer of one defendant only, then the decree was erroneous, because the others were not before the Court. If it was the answer of all, then the decree was erroneous, because one only was decreed to make satisfaction.</p> <p>Equity does not require compensation in land. Other land might be worth more, or might be worth less. The contract was, that this tract contained two hundred acres. Therefore, in case of deficiency, compensation in damages should be made.</p>

<p>William Fouchee and Mildred his wife sued out of the circuit court of Frederick, a scire facias against Thomas Buck and Anne his wife, dated the 14th November 1822, and returnable at the rules, the first Monday in December following j which, reciting that the said Mildred had, in October 1821, recovered by the judgment of the said court, 1500 dollars damages for slander uttered by the said Anne, and 133 dollars for costs of suit, and “ that since the rendering of the said judgment, the said Mildred had intermarried with the said Fouchee,” and that execution of the judgment yet remained to be made, required the said Thomas Buck and Anne his wife to appear at the rule day aforesaid, and shew cause, if any they could, why Fouchee and wife should not have execution of the said judgment &c.</p> <p>The scire facias was duly executed and returned; and, at December rules 1822, a conditional judgment was entered in the office against the defendants, for the debt in the writ mentioned.</p> <p>At May term 1823, the death of the defendant Anne was suggested on the record, and the writ abated as to her: And on the motion of the defendant Thomas Buck, the conditional judgment entered at the rules, was set aside; And thereupon,</p> <p>He filed a special demurrer to the scire facias (wherein it was called a declaration) shewing for cause, that the plaintiffs alleged in the scire facias, a marriage between themselves, without stating when or where it was solemnized. This demurrer was overruled by the court.</p> <p>And he pleaded, 1. nul tied record; to which the plaintiffs replied generally; and the court, on inspection, found that there was such a record.</p> <p>2. He pleaded a special plea, in these words, viz : “And the said defendant, by leave of the court be. for further plea be. says, that the said plaintiffs ought not to have or maintain their action aforesaid thereof against him; because he says, that at the date of the emanation of the said scire facias, the said William Fouchee was not married to the said Mildred, as is alleged in their declaration; and of this he puts himself upon the country.”</p> <p>To this second plea, the plaintiffs replied, by way of estoppel, that the plaintiff Mildred recovered the judgment against Thomas Buck and Anne his wife, at October term 1821; that, on the 11th May 1822, the plaintiff Mildred sued out a capias ad satisfaciendum against Buck and wife, upon which Buck being taken in execution, he surrendered property in discharge of his body, and gave a forthcoming bond for the property, with one Blakemore his surety; and, that a motion being made, at October term 1822, for an award of execution on this forthcoming bond, Buck and Blakemore, his surety, resisted the motion, and moved the court to quash the bond; and the court did accordingly quash the bond, and the execution in consequence of which it had been taken, “ it appearing to the satisfaction of the court, as had been insisted by the counsel for Buck, that the plaintiff Mildred, soon after the rendition of the judgment upon which the execution was issued, intermarried with William Fouchee, and was at the time the execution issued, and at the time the forthcoming bond was taken, a feme covert, and that a scire facias ought to have been awarded against the said Thomas Buck and Anne his wife, before execution on the said judgment could regularly be issued.” The replication sets forth all these proceedings, at large in hcec verba, and prays judgment, if Buck be not thereby estopped from pleading the matter of his second plea.</p> <p>To this replication, Buck demurred generally: the plaintiffs joined in the demurrer: and the court held that the law was for the plaintiffs, and gave judgment for the debt in the sci.fa. mentioned. And Buck appealed to this court.</p>

William A. Allen presented a bill to the chancellor, in vacation, praying an injunction to a judgment, which Edmund Winston administrator, with the will annexed of Edmund Winston deceased, had obtained against him, on a ^011^ S‘ven by the complainant for a tract of land which he had purchased, at public sale, and which was directed to be sold, by the will of the said Edmund Winston deceased.

<p>Award-Avoidance — Calculations Not Incorporated Therein.* — No calculations or grounds for an award, which are not Incorporated in it, or annexed to it at the time of delivery, are to be regarded or received as reasons’ or grounds to avoid it.</p> <p>Same — Matter Contained Therein Not Mentioned in Submission — Effect —if an award, which is good in other respects, contains a matter not mentioned in the submission; it shall not thereby be vitiated; but tbe additional matter oug-bt to be rejected as surplusage.</p>

ON an appeal from a decree of the superior Court of Chancery for the Richmond District, by which the bill, brought by ttie appellant to set aside an award, was dis-lllisscd.

<p>Under the act passed April 8. 1831, to incorporate the Winchester and Potomac railroad company, the freeholders appointed by an order of the county court for the purpose of ascertaining the damages which tvould be sustained by the proprietor of certain lands through which the railroad was to be opened, certified, in the form prescribed by the act, that they assessed the damages at the sum of 972 dollars; and then subjoined the following words: “We further declare that if the railroad company shall refuse to pass the water from the south side of the road to the north side, by a culvert west of the lane, the thoroughfare of the farm, and return the same by a culvert on the east side of the lane, she (the proprietor) shall receive the additional sum of 2000 dollars.” The report, upon being returned to the county court, was ordered to be recorded. An action of debt was after-wards brought to recover the 2000 dollars; the declaration averring that the company, although requested so to do, had refused to pass the water as aforesaid. Upon demurrer to the declaration, Held, the action cannot be maintained. Per Stanard, J. the charter of the company does not warrant a contingent assessment of damages by the commissioners, and does not authorize the county court to render a conditional judgment therefor: the court is authorized to render such judgment only as would authorize the clerk to issue an execution thereon.</p>

<p>Forthcoming Bonds* — Validity—Case at Bar, — In a bond for the forthcoming of property taken under execution, it is not necessary that thé time appointed for the delivery of the property should be stated to be that at which the sale is to take place.</p>

THIS was a petition for a supersedeas to a decree of the Superior Court of Chancery for the Richmond District, pronounced in May last, affirming a decree of the county court of Spotsylvania.

<p>Debí on Note-Failure of Declaration to Claim interest -Effect.* — Debt upon anote for a certain sum of money, with interest from the date, fi the declaration do not claim interest, judgment upon non sum informants, must be entered, for the principal only.</p>

<p>.Replevy Bu:†d - .Judgment Case at Bar. — Conditional judgment against A., and his appearance ball B., and writ of enquiry executed against A. only, ft. fa. against A. and B., and replevy bond taken from both. Oa. sa. afterwards sued out against A. only, on whom It was executed, and he was imprisoned. Judgment was correctly entered .against B. on the replevy bond.</p>

<p>Wills*— Entails — Statute Abolishing — Effect.— Devise in 1761 to A. for life, and after ber decease, to the testator’s nephew, and the heirs of her body lawfully begotten, forever; bul in case he die without such issue, then to T. H., the testator’s brother, in fee. — The nephew died in 1780, (after the law destroying intails,) under age, intestate, and without issue. A died in 1786. The remainder over cannot take effect, but the estate will descend to the heir at law of the first remainder-man.</p>

THOMAS GARDNER and others, next of kin to Mary Gardner, deceased, filed a bill in chancery in Louisa county court, against Francis Ford, alledging that he had by undue means procured a writing, purporting to be t^e *ast W^1 of the said Mary, aiid bequeathing to him her whole estate ; which had before been offered for probate in the county court, and rejected, but on an appeal to the District Court of Charlottesville, admitted to record.

This was an appeal from an order of the chancellor, of the Richmond district, dissolving an injunction obtained by the appellant against the appellees, to stop them from proceeding under a deed of trust. The case was this : Gay purchased of Hancock, a tract of land called Chester Hill, the purchase money to be paid by instalments. He took a deed with general warranty from Hancock, and gave a deed of trust on the land itself to secure the purchase money.

Robert Gibbon, on the 11th December 1818, agreed with his slave Richard Singleton, the appellee, that he would sell him to himself, or in other words, that he would emancipate him, in consideration of the sum of a thousand dollars to be paid to him by the slave. Of this sum, 400 dollars were to be paid in cash, 300 were to be secured to be paid on the 1st January 1820, and the other 300 on the 1st January 1821.

<p>Pleading and Practice — Declaration—Variance—When Immaterial.'*' — It is not a material variance to omit to state in the declaration the words “of the County of Essex,” the place of the obligor’s residence, which is stated in the bond.</p>

The defendants in error gave a notice in writing, to O. Trent and George Asberry, late deputy sheriffs under G. Scruggs, the administrator of the said defendant and to three others their securities, that a motion would be made against them in the County Court of Bedford in November 1790, for the amount of the revenue tax, due for the year 1783, and the costs and damages, which had been recovered by the commonwealth against the said Scruggs, in his life-time.

This was an appeal from the Wythe chancery court. The case, presented by the bill and exhibits, was this: Thomas King, by his last will, devised certain houses arid lots in the town of Fincastle to he sold by his executors, and the proceeds to be divided among certain legatees, in the following proportions, viz: to the children of his son an(* daughter Connally and Nancy Findlay, two fifths : to his son and daughter John and Elizabeth Mitchell, two fifths: and to his son and…

This case originated in the county court of Essex, whence it was carried by appeal to the superiour court of chancery of Fredericksburg, and brought thence by… Held: that the residue of the testator’s slaves should be divided into six parts, or shares, and one share allotted to the seven children of William Crow deceased, among them, one to each of the testator’s sons, Thomas, Moses and John Crow, one to the children of Mrs. Jones, and one to the children of Mrs. Crane.

The appellees brought an action of debt, in the County Court, against Christopher Hudson, who confessed a judgment, and then appealed. In November 1789, the death of the appellant being suggested upon the record, a sci. fa. issued, upon the motion of Charles Hudson the executor, to revive the appeal, and hear errors. In April 1790, a sci. fa. to revive and hear errors, was awarded on the motion of the appellees, which was returned, executed.

<p>Wills‡- Devise °* After=Acq<jired Land — Statute.—A will made since the 20th of January, 1787, may pass lands afterwards acquired.</p>

<p>Wills‡- Devise °* After=Acq<jired Land — Statute.—A will made since the 20th of January, 1787, may pass lands afterwards acquired.</p>

This was an action of detinue, in the County Court, for five negroes; and a verdict was rendered for four, without finding, either for plaintiff or defendant, as to the fifth. The judgment of the County Court •was reversed in the District Court; from which the plaintiff below appealed to this court. Marshall for the appellee contended, that only part of the issue having been found, the whole verdict must be set aside. He cited Co. Lit. 227. 3 Leo. 83. Hard. 166.

This was an action on the case, brought by the-appellee against the appellant in the District Court of Williamsburg, upon an asumpsit. On the general issue, the counsel for *the appellee offered in evidence to prove his claim, his store books, which were proved to be in the hand writing of one of the appellee’s book keepers, then dead.

<p>These three cases were argued and decided together ; and as they relate to the same general principles, they are presented under one view.</p> <p>The case of Wilson &c. vs. Spencer, was an action of debt originally brought in the court of Wood county, by Spencer against Wilson and Neale, on a note under seal; The defendants filed two special pleas stating, in substance, that the note on which the action was brought, was given to the president of an unchartered bank, established contrary to the provisions of the statutes in such case made and provided, and that it was given in consideration of bank notes, emitted by the said bank, in equal violation of those statutes.</p> <p>To these pleas, the plaintiff filed a general demurrer, and the defendants joined.</p> <p>The county court gave judgment for the plaintiff j which judgment, upon appeal to the superior court, was affirmed. The defendants appealed to this court.</p> <p>The case of McGuire vs. Ashby, was a suit in chancery. Ashby and Stribling, merchants, being creditors of one Murray, took a deed of trust from the latter, on a tract of land, to secure themselves. Previous to this deed, Murray had conveyed to Powell as trustee for McGuire, the same land which was included in the deed to Ashby and Stribling. The land was advertised for sale under the deed to Powell. Ashby and Stribling applied to the chancellor of the Winchester district, for an injunction, to stop the sale under the.deed of trust to Powell; all edging, that McGuire was not the real creditor in the deed from Murray to Powell, but that it was in fact for the benefit of the unchartered bank in Winchester. Me contends, that the deed is void by the laws of Virginia, and that the sale under it ought to be injoined.</p> <p>The chancellor awarded the injunction.</p> <p>McGuire and Powell put in their answers, admitting that the deed above mentioned was for the benefit of the bank of Winchester, as stated in the bill ; but they contend, that the bank had a good and legal right, under the act of 1816, to take any security for money due them, to sue for the same, and indeed to carry on all their operations.</p> <p>A motion to dissolve was overruled, and an appeal allowed to this court.</p> <p>The. case of Snyder against Dailey, was an appeal from the chancery court of Winchester, on an order of that court, dissolving an injunction. The case was this :</p> <p>Charles L. Snyder had become bound in two notes under seal, with John Snyder as his surety, to James Dailey, for the sum of $2,535. James Dailey brought suit at law, and recovered judgments to that amount. John Snyder afterwards^ presented a bill of injunction to the chancellor of the Winchester district, alledging that those notes were not given to Dailey in his individual character, but as president of an unchartered bank, known by the style of the president and directors of the Bank of the ®ou^ Branch of Potomac: that this institution was illegal, its acts rendered void by the laws of Virginia. There is also a detail of transactions between the several parties to the suit, going to shew, that the complainant is entitled to large discounts, even admitting the validity of the contracts ; but, as these matters are not at all embraced by the arguments or the decision of the court, they are omitted.</p> <p>The chancellor refused the injunction ; which was awarded by a judge of this court.</p> <p>James Dailey filed his answer, in which he admits that the debts in question were due to the South Branch Bank of Potomac, as alledged in the bill. He then makes a counter-statement of the transactions between the parties, which, for the reason already assigned, is not deemed material to this report.</p> <p>Depositions were taken and exhibits filed; and on motion, the injunction was dissolved $ on which order an appeal was allowed to this court.</p>

<p>i. Debt on Bond — Variance between Declaration and Bond — How Waived.* — In debt on a bond, if the defendant crave oyer, and then plead “conditions performed,” he cannot take advantage of a variance between the declaration and bond; and though the plaintiff declare against one of several obligors, without stating that they were severally bound; yet, if the bond appear to be joint and several, it is sufficient.</p> <p>2. Bond with Collateral Conditions — Assignment-Statute. † — An assignment, made after the act of 1795, by which bonds with collateral conditions were made assignable, is good, though the bond was dated before that act.</p> <p>3. Debtor within Prison Rules — Status.—A debtor within the prison rules is still a true prisoner in the eye of the law; and, as such, should be transferred by the Sheriff to his successor in office.</p> <p>4. Prison Bounds Bond — How It Should Be Taken. — A bond for keeping the prison rules should be taken to the Sheriff for the time being, and his successors in office; not his executors, administrators or assigns."</p> <p>5. Same — Assignment to Creditor.‡ — But such bond, though taken to the Sheriff, as such, and to “his executors, administrators, or assigns," may be assigned by him to the creditor; and a suit may be maintained upon it.</p> <p>6. Same — Same.—Quaere, Can such a bond, so taken, be assigned to the creditor by the succeeding Sheriff?</p> <p>7. Prisoner — Prison Fees — Security for Payment, Thereof. — The creditor of an insolvent prisoner, wbo lias the liberty of the rules, is bound to give security for the prison fees: but tile Sheriff cannot legally discharge him, unless he be actually insolvent, and, being so, the plaintiff having notice thereof, refused to pay his fees, or to give bond for the payment, thereof.</p> <p>8. Same — Ilfegal Discharge — Rights of Creditor. — If the prisoner depart from the rules by illegal discharge from the Sheriff, the creditor, having an assignment of the bond, has his election to bring suit upon it, or to sue the Sheriff.</p> <p>9. Prison Bounds Bond — Action on — What Püaintiff Must Show. — In an action on such bond, the plaintifr is only required to shew a departure from the rules: the burden of proof then devolves on the defendant to shew that the prisoner was discharged by due course of law.</p>

The appellees brought an action on the case, against the appellant in the District Court of Charlottesville; the declaration contains three counts; the first and second upon an indebitatus assumpsit & quantum valebant for goods sold and delivered, and the third for money lent. Plea non asump-sit. At the trial, the defendant offered in evidence four receipts, signed by Peterfield Trent, as offsetts against the plaintiffs demand.

This was an action of slander, brought b3r Street against Cochran, in the County Court; wherein a verdict was given in favor of the plaintiff for ^150. Cochran having failed in a motion in arrest of judgment obtained an injunction on the chancery side of the same court, suggesting that the trial was unfair, and brought on by surprise, and also charging misbehav-iour in the jury.

<p>William B. Coalter filed a bill in the circuit court of Atigusta against John Coalter, setting forth a partnership between them in the business of farming, distilling, and purchasing and selling cattle &c. and praying for a settlement of the partnership accounts. It appeared by the bill, that the partnership was entered into in December 1828, to continue for four years, so that the partnership was ended in December 1832. Yet the bill was not filed until December 1838. It stated, that in the summer of 1833, the parties referred the settlement of the accounts to two friends, who found a balance due the plaintiff upon the operations of the partnership ; but there being at that time a crop of grain growing, the value of which could not then be ascertained, the referees did not close the account, and no final settlement had since been made. The defendant, in his answer, admitted that there had been a partnership between him and the plaintiff, though he stated it somewhat differently from the plaintiff. He admitted also that there had been no final adjustment of the accounts of the partnership, but relied on various grounds of defence, one of which was the statute of limitations. The statement of the partnership accounts made by the referees, bore date the 27th of June 1833, and it stated that they had been unable to settle as to the grain then growing. One of the referees deposed, that as they went on, item by item, each one was agreed to by the parties, until they came to the item of the grain' in the ground, upon which they could not agree, John Coalter claiming the whole of the grain in the ground, and William B. Coalter claiming one third part of it. The sums agreed upon being then added up, John Coalter refused to sign a paper acknowledging the amount to be correct.</p> <p>The circuit court referred the accounts to one of its commissioners ; and a report thereof being made, a decree was pronounced in favour of the plaintiff. From which decree, on the petition of the defendant, an appeal was allowed.</p>

<p>In March 1804, Munford Beverley contracted with William Tapp, to sell Mm a tract of land in the county of Culpeper, at forty shillings per acre; £1000 of the purchase money to be paid on the 1st January 1805, and the residue in twelve months thereafter: a title free from all incumbrances, was to be made on the day appointed for the first payment. It being ascertained before the 1st January 1805, that Beverley, in consequence of some leases which he had made, would be unable to comply with this contract, the parties consented to modify it, by an agreement that Tapp should receive the rents for the year 1804, and lake a conveyance subject to the leases; and that he should have a credit of four years, instead of one year, for the excess of the purchase money beyond £ 3 000. provided this sum should be paid on the 1st January 1805. In the latter part of the year 1804, Beverley contracted with Boss, Grinnan, Mundel and Carter, to sell them his patrimonial estate in the county of Culpeper, which included the land he had previously sold to Tapp; and on the 1st January 1805, he conveyed the whole estate to them, and took back a mortgage upon it, to secure the purchase money. He communicated to them, on the same day, by a memorandum in writing, that he had before sold to Tapp, a part of the land, not then surveyed, but supposed to contain 700 acres, at forty shillings per aero. On the 12th January 1805, the land having been surveyed, and found to contain 797-| acres, Beverley conveyed it to Tapp, and received from him £ 3000. and took his bond for £ 575. the residue of the purchase money, payable on the 1st January 1809, according to the modification of their contract. On the 19th March 1805, he paid to Ross, Grinnan, Mundcl and Carter, the £ 3 000. he had received from Tapp, and took their obligation to convey the land to Tapp, and to take an assignment of Tapp’s bond for the balance of the purchase money. It would seem, from the terms of this obligation, that they were not then informed of the change that had been made in the contract between Beverley and Tapp, as to the time of the last payment ; and Beverley swears that he did not communicate it to them. This obligation was soon afterwards delivered to Tapp, and Beverley tendered to Ross and his associates, an assignment of Tapp’s bond for £575. payable on the 1st January 1809, as above mentioned; but they refused to receive it, on the ground that it ought to have been made payable on the 1st January 1806, according to the original con-q.aCf; between Beverley and Tapp, which was the only one J J that had been made known to them, and on the basis of which they had consented to convey the land. Shortly after the ,1st January 1806, they instituted a suit in chancery against Tapp and Beverley, for the purpose of compelling aq immediate payment of the balance of the purchase money; but they were cast in that suit. They thereupon took from Beverley an assignment of Tapp's bond, brought suit upon it, and prosecuted it to a judgment.</p> <p>Tapp then exhibited a bill, in the superiour court of chancery of Fredericksburg, against Beverley and against Boss and his associates, claiming credit for the rents of 1804, and two discounts for debts contracted to him by Beverley, subsequent to the date of his bond to Beverley, and (as he alleged) before Beverley's assignment thereof to Boss and others; insisting on a specific execution by Boss and others, of their contract to convey to him the land he had bought of Beverley, before he should be held to pay them the purchase money; and praying an injunction to proceedings on the judgment at law, till these matters could be heard and adjusted in equity. The injunction was awarded.</p> <p>. Boss and his associates, in their answers, contest the two discounts claimed by Tapp, for the debts due him by Beverley, on the ground, that when those debts were contracted, Tapp had notice that Beverley had assigned to them the whole of the debt which Tapp owed for the land. And they filed with their answers, a deed conveying all their right in the land to Tapp, which they said they would deliver to him, when he paid the money. This instrument was executed by them all; but as to some of them, there were no subscribing witnesses; nor was it acknowledged or certified for record, in any of the modes prescribed by the statute.</p> <p>Upon the coming in of the answers, the chancellor referred the accounts to a commissioner; who made a report, in which, rejecting the discounts claimed by Tapp for the debts due by Beverley to him, he gave him credit for 86 dollars, as of the 1st January 1809, for the rents of 1804, and for 1160 dollars paid by Tapp on the 1st January 1813, pending the suit in chancery; and stated a balance due from Tapp of 1192 dollars 65 cents with interest from 1st January 1813. And the commissioner reported, that this was the state of the account, which the defendants, Ross and others, admitted to he right.</p> <p>The chancellor, upon the coming in of the report, perpe - tuated the injunction as to seventy-four dollars only (on account of the rents of J 804) to be credited as of the 1st January 1809, and dissolved the injunction as to all the residue. He made no provision in the decree, for perfecting and delivering the conveyance from Ross and others to Tapp. And he decreed that Tapp should pay the costs. Tapp appealed to this court.</p>

This was an action of slander brought by the plaintiff, in the Court of Hustings, for the city of Richmond. The declaration begins thus: “City of Richmond to wit:” It then proceeds to lay the words to have been spoken “in the city aforesaid.” After an imparlance the plea of not guilty was. put *in.

BY an act of assembly, passed in 1786, intituled, u an {c act to amend the act for ascertaining certain taxes and “ duties, and for establishing a permanent revenue,” the compensation to the commissioners of the revenue was changed. In consequence of a construction put on that act, several commissioners drew the TSO'per annum which had been allowed prior thereto.

Trover, in the circuit court of Norfolk, by William, Newsum against Henry Newsum (in his own right) for a slave claimed by the plaintiff as his property, and charged to have been converted by the defendant to his own use. Plea, the general issue. Verdict and judgment for the plaintiff, for 684 dollars damages. The defendant filed a bill of exceptions to opinions of the circuit court given at the trial; which stated, 1.

This was an action of debt determined in the District Court of Petersburg in favor of the appellees, the plaintiffs in that court. The declaration demands ¿£490, and contains two counts.

^he years 1,77° and 1774, Thomas Newton, as re-preservative of Robert Tucker, deceased, lent to the trea- ¿ r_._. . , ,7 * r surer or Vinruja, pursuant to law, several sums ox money, for which bonos were executed.

<p>This was an appeal from a judgment of the District Court, obtained by the appellee against the appellant, upon a forthcoming bond, the condition of which is as follows, to wit: The condition &c. is such, that whereas Matt. Rodes, deputy sheriff for Michael Thomas, sheriff for Albermarle county, hath this day levied an execution on Fanny See. negroes, the property of the said David and John Wood, taken at the suit of J. Davis by a judgment of the District Court of Charlottesville; for the sum of 16,164 pounds of Tobacco, See. now if the said D. and J. Wood, and Josiah Wood shall deliver, or cause to be delivered, the aforesaid property, at David Woods barn, at his quarter, on the 14th of April next, then ike.”</p> <p>The objection to the judgment was, that the condition does not state that the 14th of April was the day appointedfor the sale of the property.</p>

This was an action of debt brought in the name of the commonwealth for the benefit of Mrs. Cauthorne, against William Bibb, .Richard Bibb and John Watson, upon a bond executed by them, the former as sheriff, the two latter as his securities.

<p>Bower - Equitable Estate.* — Under the act of 1785, giving a widow dower in a trust estate, it seems that she is entitled to dower in an equitable estate in fee-simple, contracted, by verbal agreement, to be conveyed to her late husband, provided the contract be proved to be suchas would authorise a Court of Kqulty to decree the legal estate.</p> <p>.Statute oí Frauds.†- — The statute of frauds will avail the defendant, although it be not formally pleaded.</p> <p>Same — Application—Verbal Evidence Contradictory.— Where tile verbal evidence of an agreement is oontiadictory. the statute of frauds ought especially to apply against it.</p> <p>'■Chancery practice — Evidence Convict lug — issue Biscre-1 senary.-‡ The directing an issue, lor the purpose of ascertaining disputed facts, is discretionary with a Court of Kquity. which may decide on the evidence relative to such facts, without a Jury.</p> <p>Same- Affidavits- — Failure to Object at Hearing- — Ef-iect.tl§— It seems, that if ailluavits be excepted to at the rules, and not obiected to at the hearing in the Court of Chancery, but allowed to be road, the former exception is waived, and cannot be repeated in the Court of Appeals.</p>

The case was this: Dundass having obtained a judgment against Hendricks and Taylor, an execution was taken out at the request of Taylor, who was only a security, in order *that it might be levied upon the effects of Hendricks, who was about removing with his property from this state.

<p>Conditional judgment against A., and his appearance bail ü,5 and writ of enquiry executed against A. only ,fi. fa. against A. and B., and replevy bond taken from both. Ca. sa. afterwards sued out against A. only, on whom it was executed, and he was imprisoned. Judgment was correctly-entered against B. on the replevy bond.</p>

<p>Devise in 1764 to A. for life, and after her decease, to tlie testator’s nephew, and the heirs of her body lawfully begotten, for ever; but in case he die without such issue, then to T.H., the testator’s brother, in fee.—The nephew died in 1780, (after the law destroying intails,) under age, intestate, and without issue. A. died in 1786. The remainder over cannot take effect, but the estate will descend to the heir at law of the first remainder-man.</p>

<p>Ejectment in the circuit court of Hardy county, by John Doe lessee of Elijah Hyre, Elilm Vandeventer, Solomon Bean, Benjamin H. Bean, Peter J. S. Hyre, and Cornelius Vandeventer and Susanna his wife, heirs at law of Peter Hyre deceased, against William Bryan.</p> <p>At the trial, the plaintiff introduced as evidence the will of Valentine Power, which had been duly admitted to record, and contained the following clause :</p> <p>“ Providing Peter Hyre pays two hundred pounds unto the fatherless and motherless children of Henry and Magdaline Fink deceased, and likewise maintain his father in law Valentine Power and his wife Mary, with meat, drink, washing, lodging, needful apparel, and every thing that is necessary for to support human life, during his natural life, then for a true reward he shall have my plantation whereon I now live, with the two surveys adjoining the said plantation and the spurs of New Creek mountain. I say, I give and bequeath the said land to the said Peter Hyre, and his heirs and assigns forever.”</p> <p>It was agreed between the parties, that the lessors of the plaintiff were the heirs at law both of Peter Hyre and of Susanna his wife; that Valentine Power died leaving eleven children and heirs at law, of whom the said Susanna was one; and that Amelia Power, one of the said children and heirs at law of Valentine Power, had died intestate and without issue. The lessors of the plaintiff rested their claim to the land devised to Peter Hyre, upon the said will, and on testimony adduced by them to prove that Peter Hyre had complied with the conditions of the will. The defendant moved the court to instruct the jury, that the provision of the will by which Valentine Power devised his land to Peter Hyre, created a precedent condition that Peter Hyre should maintain the testator and his wife Mary, during their lives, with meat, drink, washing, lodging, needful apparel, and every thing necessary to support human life; and that unless the jury believed it had been proved that Peter Hyre, or some person at his instance and procurement, did maintain the said Valentine Power and his wife during their lives, as above stated, then they ought to find for the plaintiff only one tenth of the lands set forth in the declaration. The court refused to give this instruction, but instructed the jury as follows : that the provision of the will by which Valentine Power devised his land to Peter Hyre, created a precedent condition that Peter Hyre should maintain the testator and his wife Mary, during the life of the said Valentine Power, with meat, drink, washing, lodging, needful apparel, and every thing necessary to support human life; and that unless the jury believed it had been proved that Peter Hyre, or some person at his instance and procurement, did maintain the said Valentine Power and his wife during the life of said Valentine Power, as above stated; or, if they believed that there was only a partial compliance, unless they believed that such partial compliance was accepted as a performance of the condition precedent in the lifetime of the testator, then they ought to find for the plaintiff only one tenth of the land set forth in the declaration. To which opinion of the court the defendant'excepted, and his bill of exceptions was signed and sealed.</p> <p>A second bill of exceptions, after stating that the plaintiff gave in evidence a copy of the will of Valentine Power, set forth that the defendant introduced evidence tending to shew a parol disclaimer by Peter Byre the devisee, and moved the court to instruct the jury, that if they believed, from the facts proved, that there ■was a parol disclaimer of the land devised to him, they •must find for the defendant: which instruction the court refused to give, but instructed them that the disclaimer •must be by writing. To which opinion of the court the defendant also excepted.</p> <p>A verdict being found against the defendant, he moved for a new trial; which motion was overruled, and judgment entered for the plaintiff</p> <p>. Whereupon Bryan presented a petition to a judge of this court for a supersedeas, insisting that whatever might be the true construction of the will in reference to the condition precedent, yet the will could pass no title to Peter Byre if he disclaimed the devise, whether that disclaimer was by parol or in writing; that the title to the land under the will never could vest unless the de.vise were assented to, and though such assent would be presumed in the absence of all proof, yet it could not be presumed in opposition to an express disclaimer, although that disclaimer were by parol. The supersedeas was awarded.</p>

<p>It is not a material variance to omit to state in the declaration the words “ of the County of Essex,’’ the place of the obligor’s residence, which is stated in the bond.</p>

<p>The defendants in error gave a notice in writing, to O. Trent and George Asberry, late deputy sheriffs mider G. Scruggs, the intestate of the said defendants, and to three others, their sureties, that a motion would be made against them in the County Court of Bedford, in November 1790, for the amount of the revenue tax due for the year 1783, and the costs and damages, which had been recovered by the Commonwealth against the said Scruggs, in his life-time. O, Trent» being served with a copy of the notice, appeared and put in a plea in writing, (which he swore to in Court,) denying that the sheriffs's bond, upon which the motion was made, was his deed.</p> <p>The Court, on hearing the evidence, gave judgment, that the plaintiffs have execution against the said Trent, Asberry, and two of the sureties, upon whom the notice was served, for the penalty of the bond, but to be discharged by the payment of 651/. 8s. 3|, with interest thereon, at the rate of 20 per centum per annum from the first of November, 1784, till payment, and the costs.</p> <p>From this judgment the two sureties appealed, having filed a bill of exceptions to the opinion of the Court, stating the reasons for which they appealed § which were : 1st, Because the bond upon which the judgment was given was joint, and that no testimony was adduced, on the part of the plaintiffs, to disprove the plea of O. Trent, except his acknowledgement in Court that he had subscribed his name to the bond, and delivered it to the other defendant George Asberry, as a form, by which to draw such bond 5 but that he never acknowledged the same, or delivered it as obligatory upon him.</p> <p>2d. Because the interlineations in the bond were not proved to have been made at the time of executing it.*</p> <p>The District Court affirmed the judgment, as to George Asberry, and the two sureties j awarded severance as to O. Trent, and reversed the judgment against him : The Court being of opinion, that the plea put in by him, ought to have been tried by a jury; for which purpose they remanded the cause to the County Court.</p> <p>The defendants, George Asberry and the two sureties, obtained a supersedeas to the judgment of the District Court from one of the Judges of this Court.</p>

This was an ejectment brought .by the appellees to recover a tract of land called Ochaneachy island in which the following case was agreed. That Robert Mumford was in his lifetime seized in fee of the lands in dispute, called Ochaneachy island, of another tract called Finney wood, and of another called Cargills.

This controversy had been already before this court, several times, in various forms; and a recapitulation of the former adjudications… Held: that JYorvell’s patent, being on its face fair and regular, could not be thus impugned, collaterally and by extrinsick evidence, but only by suit in equity to set it aside, or some other proceeding having that for its direct object; and that patent must prevail, except against an elder one: therefore, the judgment was reversed, and a…

In 1823, Isaac Medley filed his hill in the chancery court of Williamsburg, against Jesse L. Dupuy, Henry Hairston, and Edmund Banks, as partners under the name and style of Dupuy, Hairston Sp Banks, in which he stated that he had shipped to the defendants, who transacted a commission business in Norfolk, .two hundred and thirty-eight barrels of flour, to be sold for him.

<p>The appellees brought an action of debt in the County Court, against Christopher Hudson, who confessed a judgment, and then appealed. In November 1789, the death of the appellant being suggested upon the record, a scL fa„ issued, upon the motion of Charles Hudson the executor, to revive the appeal, and hear errors.</p> <p>In April 1790, a scLJa„ to revive and hear errors, was awarded on the motion of the appellees, which, ivas returned executed</p> <p>In April 1791, the District Court affirmed the judgment, and awarded the damages and costs of the appeal., against the appellant. From which judgment he appealed to this Court.</p>

This is a declaration in covenant, containing two counts. The 1st sets forth, that Long and Colston on the 8th July 1797, entered into a covenant which recited, that Chilcott Symmes of G. Britain, on the 24th June 1742, devised certain lands, &c., to Richard Chichester in fee; that Richard Chichester devised them to his son John; that John Chichester died under age, leaving a daughter, (Mary) his only child, who married Burgess Ball: and died, leaving two children, a son…

This is an action of debt, brought in the county court, by the appellee, upon a single bill. The defendants pleaded two pleas, stating, in substance, that that bill was given to the president of an unchartered bank, established contrary to the provisions of the statutes in such case made and provided, and that it was given in consideration of bank notes, emitted by the said bank, in equal violation of those statutes.

After the decision of the Court of Appeals in the case of Chichester v. Vass, 99 (for which see 1 Call, 105,) a “new suit was brought by Vass, in the late High Court of Chancery, against Sarah Chichester, widow, devisee and executrix, and others, children and grandchildren of the said Richard Chichester, deceased. The case was this.

This was an action of detinue in the County Court, tor five negroes % and a verdict was rendered for Jbur¡, without finding, either for plaintiff or defendant, as to the fifth. The judgment of the County Court was reversed in the District Court § from which the plaintiff below appealed to this Court.

This was an action on the case, brought by the appellee against the appellant in the District Court of Williamsburg, upon an assumpsit. On the general issue, the counsel for the appellee offered in evidence to prove his claim, his store books, which were proved tobe in the hand-writing of one of the appellee’s bookkeepers, then dead.

The appellees brought an action on the case, against the appellant in the District Court of Charlottesville. The declaration contains three counts the first and second upon an indebitatus assumpsit and quantum valebant for goods sold and delivered, and the third for money lent. Plea non assumpsit„ At the trial, the defendant offered in evidence four receipts, signed by Peterfidd Trent, as off-setts against the plaintiff Js demand..

Peter R. Beverley filed his bill in that court, setting forth, that Carter Beverley conveyed to him a tract of land containing five hundred acres in Culpeper county, by deed of bargain and sale, on the day of January, 1808 | and on the 18th day of the same mouth, acknowledged the same in the county court of Culpeper, when the said deed was, by the said court, ordered to be recorded, and was left with the clerk for that purpose ; that before the said deed was actually…

This was an action of slander, brought by Street against Cochran, in the County Court; wherein a verdict was given in favor of the plaintiff for 150/= Cochran having failed in a motion in arrest of judgment obtained an injunction on the Chancery side of the same Court, suggesting that the trial was unfair, and brought on by surprise, and also charging misbehaviour in the jury- The cause coming on for a hearing, the Court without setting aside the former verdict, directed a…

The heirs of Peter Lyons, who was surviving trustee of William Byrd, brought ejectment for lot No. 547, in the city of Richmond. At the trial, the lessors gave in evidence the following documents and facts.

<p>Deeds — Construction—Case at Bar.- A deed conveyed lands (excepting several prizes drawn by fortunate adventurers In the maker’s lottery,) a prize drawn by a ticket proved to have been delivered to one of the trustees and superintendants of the lottery, without Its appearing- whether the ticket was sold or not, is within the exception. (Qua-re. l</p>

This was an action of slander brought by the plaintiff, in the Court of Hustings, for the city of Richmond't The declaration begins thus : ee City of Richmond to wit It then proceeds to lay the words to have been spoken “ in the city aforesaid.w After an imparlance, the plea of not guilty was put In.

<p>A testator, besides bequeathing a sum of money to his wife, and another sum to his daughter Rebecca, bequeathed to his daughter Susanna $ 4000. to be paid by his executors in equal payments of 1000. each after his decease. He devised lands to certain devisees, provided they should pay into the hands of his executors the sum of $ 1000. per annum for eleven years. He made a bequest to two sons John and Samuel, they making themselves answerable for certain payments to his wife and his daughter Rebecca. And he directed his executors to receive $ 1000. annually from the devisees before mentioned for five years, to be paid over by them to his daughter Susanna. The remaining § 6000. as it should become due, he gave to his sons John and Samuel. Under this will a question arose as to the quality and extent of the power conferred on the executors over the fund of 1000. per annum, charged on the devisees. Per Stanard, J. the proposition that this fund is identified with (he personal estate of the testator, and passes to the executors subject in all respects to the executorial power over personal estate, and to all the liabilities of such estate, cannot he maintained: the legacy of $ 5000. for the daughter Susanna is not a general one, payable out of the personal assets, with the charge on the land as an auxiliary security, but is a legacy to be paid only by means of the charge; and the fund arising from this charge has no more the quality of personalty, than a fund arising from land directed to be sold to pay a legacy.</p> <p>Parties dealing with an executor or trustee, and co-operating with him in the misapplication of assets or trust funds, in violation of the duties of the executor, or in breach of the trust, cannot usé such transactions as a defence against the claim of creditors, legatees, or cestuis que trust. And the application of assets or trust funds, by the executor or trustee, to the discharge of his individual responsibilities, is, unless the estate or trust be indebted to the executor or trustee, a violation of duty or breach of trust.</p>

This suit was originally brought in the high court of chancery, and afterwards transferred to the Fredericksburg district, upon the division of the court. John Burnley, who had been a resident of Virginia, afterwards moved to Great Britain^ and died at sea on his return to Virginia. He left two wills, one dated in 1771, and the other in 1778.

Levi Branson filed his bill against Harvey and wife and Peck, setting forth that his grand-father, Benjamin Borden the elder, by his will in 1742, among other things, directed that all his lands on the waters of James river should be sold, excepting 5000 acres of land, all good, which he gave to five of his daughters, Abigail Worthington, Rebecca Branson, Deborah Borden, Lydia Borden, and Elizabeth Borden, that is, 1000 acres of good land a-piece to every one of the said…

<p>Contract — Action for Breach — Right of Defendant to Specific Performance.* — Alter an action at common law baa been brought to recover damage.-, for breach of a contract, the def. has no right to file a bill in eciuity to compel the plaintiff to accept of a specific performance: unless some particular grounds of ennity exist on his behalf, excusing and relieving against such breach, and shewing that trie contract ought, nevertheless, to be specifically enforced.</p> <p>Same-Consideration Uncertain — Immediate Perform» anee — Case at Bar. — If 0. agrees to pay L. a sum of money or to convey to him certain lands upon L. 's making him a deed tor all his right to an estate, the value whereof is unascertained, but supposed to exceed the value of the consideration contracted to be given by O.: and L. makes the deed: it seems that C. has not a right, on the ground of a supposed deficiency in the value of the estate, to withhold performance on his part, until L. shall give him au assurance to make good such deficiency; but is bound to immediate performance; and when the value of the estate is finally ascertained. may have such remedy for the deficiency as shall be equitable.</p>

ON an appeal from a decree of the High Court of Chancery. The case was this. Held: on the ground that the nature of the relief is different in the different Courts. In equity, specific performance may be decreed; the conduct of the parties, and all equitable circumstances may be considered. From 4 Ves. jun. 686-689.(c) and 4 Bro.

These were appeals from the superior court of chancery for the Richmond district.

This was an action of debt decided in the District Court of Petersburg, in favour of the appellees, the plaintiffs in that Court. The declaration demands 490/., and contains two counts.

This was an action of debt, brought by the appellee against the appellant, upon a protested bill of exchange, drawn by the testator of the appellant, for 187/. 15s. sterling, for value received: as also, for the damages at the rate of 10 per cent., together with the charges of protest, &c. The declaration demands the 187/. 15s. sterling, of the value of 250/. 6s. 8d current money; and 4s. 6(1. sterling, of the value of 6s. current money, and interest at the rate of 10per…

This was a suit, instituted originally in the County Court, on the Chancery side, by the appellant. The bill states: that the complainant in 1761 or 1762, purchased a tract of land from H. Hatcher for which he paid a valuable consideration.

This was an action of debt brought in the name of the Commonwealth, for the benefit of Mrs. Cauthornes against William Bibb, Richard Bibb, and John Watcon, upon a bond executed by them, the former as Sheriff, the two latter as his sureties.

This was a suit brought by the appellee, iu the High Court of Chancery, to be relieved against a judgment for /SO, which by an award of arbitrators (made under a rule of court) he had been adjudged to pay with interest; — insisting that the /SO was only intended as a penalty to enforce the punctual payment of /100, or to compel the appellee, in lieu thereof, to take up the appellant’s bond to one Garret, for that sum, and which he was prevented from doing by the appellant…

Upon an appeal from an interlocutory decree of the Superior Court of Chancery for the Richmond District, in a suit brought by Eittleberry Royster and Nancy his wife, late Nancy Farris, orphan of Sherwood Farris, deceased, against William Savage and Elizabeth Gathright, administrators of Joseph Gathright, Jane Gathright, administratrix of Miles Gathright, and Anne Whitlock, administratrix of Benjamin Gathright, deceased.

This was an action of debt brought by' the appellant in the District Court of Petersburg, upon a prison bounds bond; the breach assigned in the declaration, is. nearly in the words of the condition of the bond, with an averment, that the prisoner did depart and escape from the bounds, without being discharged by due course of law.

<p>The case was this: Dundass having obtained a judgment against Hendricks and Taylor, an execution was taken out at the request of Taylor, who was only a surety, in order that it might be levied upon the effects of Hendricks, who was about removing with his property from this State. It was issued without the knowledge or permission of Dundass, but with the consent of a gentleman who had been counsel for him in the High Court of Chancery upon an injunction obtained by Hendricks, to the judgment at law. The execution was served upon the property of Hendricks, and a replevy bond taken. The security being entirely insufficient, Dundass sued out another execution, with a direction to levy it upon the property of Taylor only: and upon a motion made by Taylor in the County Court, where the judgment was rendered, to quash the last execution, this question came on. The judgment of the County Court is, “ that the execution be quashed, it appearing to have issued illegally.”—Sundry exceptions being taken, the cause was carried by supersedeas before the District Court, where the judgment of the County Court was reversed, from which an appeal was prayed.</p>

<p>Where A borrows money of B, to be repaid on a given day, and delivers to B, a negro man, declaring by a writing that the negro is so delivered K in order “ to pay the interest thereon and to secure the payment of the principal” at the time stipulated, &c. <cthe labor of the said negro to be for the interest “ of the money, and if the said A shall tail to repay the said sum. of money u on or before” the day stipulated, “ then the said B, is to have a good title <e in fee simple to the said negro. If the said negro shall die before” the day stipulated, es it is to be the loss of the said k 5” the court were divided whether this instrument should be considered a mortgage or conditional sale; one judge regarding it as a mortgage; another considering it as a mortgage upon its face, hut rendered a conditional sale by the attendant circumstances; and a third viewing it as a conditional sale.</p> <p>Qw. What shall be considered an adversary possession ?</p> <p>It is error in the chancellor to refuse an application to open an interlocutory decree, founded upon affidavits of a discovery of important matter since such decree was rendered.</p>

<p>Indians — Slaves.*—At what time Indians might be made slaves of, and when not; — and what Indians they were.</p>

By deed bearing date the 8th of March 1820, between Samuel Hutchison of the county of Nicholas of the one part, and his children Eusebius 'Robinson Hutchison, David Campbell Hutchison, Lemira Henderson Hutchison and Junius Robert Hutchison of the other part, the said Samuel, in consideration of the natural love and affection which be bore unto his said children, conveyed to them the. tract of land on which he then lived, five hundred acres whereof were held by him under a…

John Early, surviving executor of Joshua Early, filed a bill in Chancery, against Jabez Early, Samuel Garland, Samuel Read, and William Booth, stating, that Joshua Early, had by his will, lent to Jabez Early, a negro woman named Venus, until he (Jabez) should attain the age of fifty: to be under the control of his executors *and in case Jabez died under 50, the executors were to make a title to his heirs.

Charles Fenton Mercer, by deed of bargain and sale, dated January 13th 1804, and duly recorded in the county court of Mason in July following; reciting that he had purchased of William Philip Perrin of London, a large tract lying on the Ohio, of near 14,000 acres, which Perrin had purchased of George Mercer deceased, for £3,375. sterling, payable in four instalments; that this purchase had been made for the mutual benefit of himself, John Fenton Mercer and James Mercer…

The bill in this case was filed by the appellees, to be relieved against a judgment at law rendered upon a bond executed by James Davenport, junior, and James Davenport as his surety, for 113/. 16s. 4d. being the amount of purchase money for a tract of land purchased by the said James Davenport, junior, under a decree of foreclosure pronounced by the County Court of Hanover.

<p>r M. seised of three tracts of land, and entitled to the equity of redemption in a fourth, made his will in 1743, and after declaring that, as touching his temporal estate, he desires the same may be employed as follows: directs, in the first place, that all his just debts shall be paid. He then devises to his eldest son, all his lands at O. and F. with some negroes and stocks. To his other son, all his lands at C, with other negroes and stocks. To his wife and daughter he gives all the rest of his estate real and personal (saving one negro, by name, whom he gives to his second son) but no words of inheritance are annexed to any of the devises. The inheritance in the land devised to the heir at law, descended upon him, and did not pass under the residuary clause.</p> <p>In a general devise of lands, without limitation or restriction, the reversion will not pass under a general residuary clause, but will descend to the heir.</p>

Kownslar owned the land on both sides of Mill Creek in Berkeley; he had a mill on it already, and wishing- to raise the dam, (which had been erected according to law,) obtained a writ of ad quod dam-num, which was issued in the usual form, requiring the sheriff to summon a jury to inquire of damages; whether the health of the neighbours would be injured &c. The sheriff returned, that a jury being summoned and charged as aforesaid, upon their oaths said, that Kownslar should…

The appellant Hill, with two others, were endorsers of a bill of Exchange, drawn by Braxton in favor of Southerland, which returned protested.

At the quarterly term of the county court of Marion, for March 1844, Phoebe, and six others, who had been the slaves of Richard Boggess, deceased, offered for probat a paper writing, as containing his nuncupative will.

Lane and Brome merchants, filed a bill in the Chancery court of Winchester, stating, that Bull some years before, being indebted to one Turnbull, had given a mortgage on certain lands, to secure the payment; a suit had been brought to foreclose the equity of redemption ; and a decree had been made for a sale, which decree was executed, so far, as to put the purchaser in possession.

<p>A decedent leaves a will conveying real estate, wholly written by another and signed by that other with the name of the testator. There are two subscribing witnesses to this paper 5 one of whom saw the signature and heard the testator acknowledge that it was signed by his authority ; the other does not say whether the paper was signed or not at the time of his attestation, the testator merely declaring “ it is my will 5” it was held that such a paper was not proved according to the requisitions of the statute» A man who is made a pvochdn ami to an infant without his knowledge or con. sent, is not disqualified from being a witness; but quaere, what shall amount to a recognition by such prochcin ami, that his name was properly used?</p>

<p>Slaves — White Persons — Indians—Negroes—Onus Pro-bandi * where white persons, or native American Indians, or their descendants in the maternal line, are claimed as slaves, the onus probandi lies on the claimant; but it is otherwise with respect to native Africans and their descendants, who have been and are now held as slaves.</p> <p>Same — Indians.†-—It seems that no native American Indian could be made a slave under the laws of Virginia, since the year 1691.(1)</p> <p>Suit for Freedom‡ — Variance between Evidence and Case Stated — Effect.—In suits for freedom, a variance between the evidence and the cases stated by the plaintiff, will not be regarded by the Court: but the decision will be according to the rights of the parties, and the case made out by the evidence at the trial.</p> <p>Same — Ancestor of Plaintiff an Indian — Effect.—if a female ancestor of a person asserting a, right to freedom, is proved to have been an Indian, it seems incumbent on those who claim such person as a slave, to shew that such ancestor, or some female trom whom she descended, was brought into Virginia -between the years 1679 and 1691, and under circumstances which, according to the laws then In force, created a right to hold her in slayery.</p>

Cole stated, in a bill filed in the Chancery court of Richmond, that he as surety for one Buck, together with Buck, entered into a forthcoming bond to Fenwick, (who sued for the benefit of Williams,) with condition, to deliver ten negro men mentioned in the condition, to the sheriff of Chesterfield : an execution by Buck for Williams, had been previously levied on these slaves.

The points in controversy in this case {which was originally an action of eject-, ment, by Greenup v. Alexander, in the District Court of Dumfries, for 205 acres of land, lying in Eoudoun County) are set forth in a bill of exceptions filed at the trial; the most material parts of which are as follows: “Memorandum, on the trial of this cause the plaintiff’s counsel produced and offered in evidence a writing purporting to be a patent to the plaintiff’s lessor for the land in…

This was an action upon the case, brought by the appellant in the County Court of Albemarle, in the year 1787.

This was a suit instituted in the High Court of Chancervr, by the appellant, for the specific execution of a parol agreement made between himself and the defendants, his brothers, in the life-time of their father, that whether their father should die testate or intestate, they would make amongst themselves an equal distribution of his estate.

<p>Death of Defendant after Supersedeas — Scire Facias.— Tf after a supersedeas obtained the defendant fn error die, a scire facias must be awarded against his executors, or administrators, and not a new writ of supersedeas, because the latter could not he considered as a continuing- process, and consequently, the executor could not sue upon the su-persedeas bond first given.</p>

This was an action brought by the appellants in the District Court of Northum-berland, laying an assumpsit to themselves. At the trial, the court, thinking the action not sustainable upon the evidence given, directed a nonsuit, to which the plaintiff submitted, but filed a bill of exceptions to the opinion, and obtained a supersedeas to bring up the record before this court.

The appellee, brought an action of det-inue against the appellants in the County Court, in 1783, for the recovery of two slaves.

This cause, came on before the District Court of Prince Edward, upon a summons issued by the order of the court, on the motion of Mrs. Wilcox the widow, and of Susannah Wilcox, the heir at taw of Edmund Wilcox against Philip Rootes and others; requiring them to produce the will of the said Edmund Wilcox; and on a cross motion of the said Rootes and others, against Mrs. Wilcox, and the heir at law, to admit the said will to record.

<p>Wills — Implied Revocation — flarriage and Birth of Issue.* — A subsequent marriage,and the having of a child, is an implied revocation of a will, and in such a case, the will ought not to be admitted t©> probate.</p>

<p>By deed dated June 10. 1823, Mereday Haley conveyed to his sons Philip and William Haley, in fee, a mill and sixty-five acres of land thereto adjoining, and another tract of sixty acres, lying in Caroline county. The consideration expressed in the deed was 1500 dollars, and a receipt for the money of the same date with the deed, was subjoined to it.</p> <p>The same Mereday Haley, by deed dated June 18.1823, conveyed to Samuel Chiles and Timothy Chandler, trustees, a tract of 340 acres of land in Caroline, and the same mill and lands comprised in the deed of June 10.1823, ten slaves, sundry stock of horses, cows &c. plantation utensils, and household and kitchen furniture, in trust, to secure a debt of 1099 dollars due by M. Haley to F. James &f Co. and another debt of 935 dollars due to his son Joseph C. Haley.</p> <p>And, by deed dated October 1. 1823, Mereday Haley conveyed to George Martin, 176 acres of land, apparently parcel of the largest tract comprised in the deed of trust of June 18.1823, for the sum of 1200 dollars, whereof Martin paid 50 dollars, and gave his bond for 1150 dollars, which bond M. Haley transferred to his son Joseph C. Haley.</p> <p>F. James & Co. shortly after the deed of trust of June 18. 1823, was executed, assigned the debt thereby secured, and the security, to Philip, William and Joseph C. Haley, sons of Mereday, for a full and fair consideration. And on the 29th September 1823, the assignees had a sale made under the deed of trust; at which Philip Haley purchased three of the trust slaves, and sundry articles of furniture, at the price of 239 dollars; William, Haley purchased four slaves, a horse and some furniture, for 337 dollars; and Joseph C. Haley purchased three slaves, for 105 dollars. These sales were so conducted as to prevent competition, and the prices shew that there was none.</p> <p>After all these transactions, James Williams and Richard Williams, recovered judgments against Mereday Haley, for debts contracted before any of the deeds above mentioned had been executed; and sued out executions, which were unavailing. James’s judgment was the eldest.</p> <p>And then they exhibited their bill, in the superiour court of chancery of Fredericksburg, against Mereday Haley, Philip, William and Joseph C. Haley, Martin and F. James Sf Co. charging that the deed of June 10. 1823, was altogether voluntary and fraudulent; that the deed of trust of June 18. 1823, though fair so far as it secured the debt to F. James &f Co. was fraudulent so far as it secured the debt of 935 dollars to Joseph C. Haley, no such debt having been due; that the sales under the deed of trust of September 29. 1823, were fraudulent; and that though the sale of October 1. 1823, of 176 acres of land to Martin, was fair so far as he was concerned, the transfer of his bond for 1150 dollars of the purchase money, by M. Haley, the father, to Joseph C. Haley, the son, was fraudulent: And praying, that all the transactions, thus impeached as fraudulent might be set aside, and the property subjected to their judgments. The defendants filed their answers; and a volume of depositions in relation to the frauds charged in the bill, were taken and filed by both parties. The chancellor held that the charges of fraud were fully proved, and pronounced an interlocutory decree according with the prayer of the bill. The Haleys appealed to this court.</p>

This was a suit in Equity, instituted originally by the appellants against the appellee in the County Court of Spottsylvania. The material facts in the case are as follow, viz: A. Spotswood, the grandfather of the appellee, on liis marriage settled an annuity of 500/. on his wife, payable quarterly, and charged his Mine tract of land therewith, with power of distress, and nomine pcence.

Edward Hallam procured a warrant of attachment, against certain goods of John M’Pherson, for rent. The defendant not appearing to replevy the goods, Hallam moved the Hustings court of Richmond (to which the warrant was returnable) for judgment. The court gave judgment, and gave a day to Jones and Winston (with whom the officer stored the goods, and who claimed title to them) to interplead.

<p>Wills — Equity Practice — Case at Bar. — A, upon his marriage, settled an annuity of 5001. on his wife, charged on a certain tract of land, wil h power of distress, and nomine pcena?,. By his will he devised all his estate to his son B, in tail, who, after his fathers death, entered. B gave to his mother, the annuitant, his bond and two bills of exchange for the amount of her annuity then due, and died indebted to his mother for a part of her annuity afterwards accrued, having, by his will, devised all his estate, not intailed, to his second son. The bills were negotiated by T, who intermarried with the annuitant, upon which an action was brought and judgment obtained against the executors of B, upon which an execution was issued, and returned nulla, bona. T, by his will, devised to the plaintiif all the debts due to him irom the estate of B. To recover the amount of the aforesaid bond, bills, a,nd residue of annuity, a bill in ifiquity was filed against the issue in tail, under the will of A. Decided, that whether the annuity was extinguished or not at Law, by the bond and bills it was so in Jiquily, and that the plaintiff had mistaken his right as well as his remedy.</p>

On the 17th of September 1833, David T. Hewes of Harrison county made a power of attorney, whereby he appointed William Thomas of Prince William county his agent and attorney in fact, for him the said Hewes and on his behalf, and in his name, to do, transact and perform “ all and every thing or things, act or acts, which he may deem proper to be done (always consulting his own judgment in the act or acts to be done and performed) in any and every species of business wherein…

<p>T. J. dies in 1821, possessed of a tract of land, an improved lot, slaves, and other personal property, and debts due him; leaving a widow, and five infant children. In 1822, R. S. qualifies as his administrator. Dower in the land, and her distributable portion of the personal estate, is not assigned to the widow until 1834, when the land and slaves are divided under a decree of the court; but she retains possession of the tract of land, and all the personal property, but three slaves; keeps her children, and supports and educates them; a reasonable allowance for which, exceeds the whole income of the estate, as well that in her hands, as that in the hands of the administrator. Soon after the death of T. J., the widow builds a house on the land, and makes other permanent improvements thereon, which are suitable to the estate, and obviously for the benefit of the infants; the cost of which is paid by the administrator. Whilst the widow is holding the estate, and supporting and educating the children, she becomes indebted to several successive mercantile firms, of which the administrator is a partner, for goods purchased for the use of herself and the children. These accounts run from the death of T. J., to the time of the division of the estate in 1834. The administrator rents out the lot, hires out the three slaves not retained by the widow, collects the debts, and administers the estate, hut he never settles his administration account. Upon a bill brought by the children against the administrator and widow, for a settlement of the administration account, and division of the estate: Held, 1. That the allowance for the support, maintenance, and education of the infants, must be limited to the amount of the interest, rents, hires, and other annual profits of the estate. 2. That the principal of the infants’ personal estate in the hands of the administrator, may be applied to the payment of the cost of the house, and other permanent improvements put upon tiren- land. 3. That in stating the administration account, it should be brought down to the time of the division of the estate, and that the rents, hires, or other annual profits of the estate in the hands of the administrator, and the interest on the annual balances of the administration account, should not be involved in that account; but should be put into the account between the administrator and the widow. 4. That the administrator is entitled to credit on his administration account, as at the time of the division of the estate, for the value, at that time, of the house, and other permanent improvements put upon the land, to be ascertained by deducting the depreciation thereof from decay, from the amount of his disbursements therefor. 5. That he is entitled as against the widow, to the interest on the disbursements made by him for the house, and other permanent improvements on the land, from the time they were made, to the time of the division; and to the difference between the disbursements, and the value of the said improvements at that time, to be ascertained as aforesaid. 6. He is entitled as against the widow, to credit for the amount of tire store accounts, made by her with his successive firms, with interest thereon, so far as the same is sustained by satisfactory proof, either direct or presumptive, or may be obtained from her by an examination upon interrogatories. 7. The widow is entitled as against the infants, to tiie whole annual profits of the estate, including the interest on the annual balances on the administrator’s administration account, up to 1834; and to the interest on the distributable share of each, in the hands of the administrator, up to the time they respectively come of age; to be a credit to her in her account with the administrator.</p>

<p>British Debts — Money Paid into Loan Office in Discharge — Liability of Commonwealth. — The Commonwealth Is not responsible for the nominal amount of money paid into the Loan-Office in discharge of British debts; but only for its value according to the scale of depreciation.</p> <p>Same -Same — Scale Applied at What Time. — The scale, in such cases, is to be applied at the time of the payments: not at the date of the governor's receipt for the certificates of those payments.</p>

This was a writ of right brought by a great number of demandants, consisting of all the children of John Carter of Sudley, among whom were Elizabeth Tidball; all the children of Robert Carter who was a son of John ; and the children of Edward, and the grantees and devisees of Landon Carter, against Joseph Carr the tenant. The mise was joined on the mere right: and a Jury was sworn in conformity with the statute to try the mise.

This was a suit brought by the appellee in the High Court of Chancery, against the appellants.

<p>Clarkson exhibited his bill against Garland and Jacobs, in the superiour court of chancery of Lynchburg, setting forth, that on the 23d March 1815, he in fact borrowed of Jacobs the sum of 2335 dollars, at exorbitant usury, though this usurious loan was covered by the device of a sale of 16 slaves by Clarkson to Jacobs, redeemable by Clarkson, on payment of 2935 dollars, on or before the 23d March 1816; and on the 22d May 1815, he in fact borrowed of Jacobs another sum of 2666 dollars 26 cents, likewise on usury, though this loan was also covered, in like manner, by the device of a sale of 14 slaves by Clarkson to Jacobs, redeemable by Clarkson, on payment of 3394 dollars, on or before the 23d March 1816. That, the slaves not being redeemed by Clarkson, Garland, with full knowledge of the usury, by an arrangement with Jacobs, became jointly and equally interested with him in the contracts; and, in August 1816, they procured Clarkson’s bond for 7000 dollars, being the aggregate of the two usurious debts contracted to Jacobs, with the addition of further usury for forbearance. That, at the same time, Clarkson was indebted to Garland on other accounts, and Garland exacted usury for forbearance of these debts also 5 for which, and the usurious premium for forbearance thereof, amounting together to 2465 dollars 56 cents, Clarkson gave Garland another bond. And then, Clarkson, by a deed of trust, mortgaged 28 slaves, to secure payment, in March following, the debts due by both the bonds, with interest from the dates thereof. That, after these bonds and the deed of trust were executed, Clarkson delivered Garland his crop of 21383 pounds of tobacco, for which he was entitled to credit at the rate of 20 dollars per cwt. being the price stipulated by the previous contract; but Garland gave him credit for it, only at the rate of 11 dollars and some cents per cwt. That a large balance of the debts remaining unpaid, Garland, on the 6th August. 1817, made a new contract with Clarkson, for farther forbearance thereof, on a new usurious premium, and for the forbearance, on usurious premium also, of other debts claimed by Garland of Clark-son; and then took Clarkson’s bond for 11250 dollars payable (with interest from the dale) in June 1818: and Clarkson, to secure payment of the debt due by this bond, by a new deed of trust, mortgaged fifty-one slaves. Of what items this large debt of 11250 dollars was composed, Clarkson said he did not exactly know, and ho called on Garland to explain; it consisted in part of the old balance of the former usurious debts, of new usurious premiums for forbearance thereof, of other debts claimed, and usurious premiums for forbearance of them too; a very large proportion of the whole sum was usury. . That Clarkson paid Garland 15 hogsheads of tobacco, which Garland was to give him credit for, at the then fair market price, which was from 8 to 11 dollars per cwt. That in November 1818, Garland caused a sale to be made, of the slaves mortgaged by the deed of trust of August 1817, for tho payment of the debt of 11250 dollars thereby secured : at which sale, two of the slaves were purchased by Garland, aud twelve by third persons, for the aggregate sum of 7270 dollars : ten others were bought in, nominally by Garland, but really for Clarkson, at the price of 3856 dollars Garland having agreed to let him retain them, at the prices at which he should buy them; but Garland afterwards refused (o let him have them, without a premium of 600 dollars on the cost, to which extortion Clarkson was, in his necessities, forced to submit. That, after this sale, farther forbearance, for new usurious premiums, was given : and a new bond, dated in November 1818, was exacted of Clarkson, for 7483 dollars 70 cents, payable in November 1819, (embracing the accumulated usury of the former transactions, with new usury, the 3856 dollars, the price of the ten slaves, and the 600 dollars advance thereon) and a new deed of trust was executed by Clarkson, mortgaging 25 slaves to secure this debt. After this, Clarkson paid Garland 8 hogsheads of tobacco, tho price whereof, 588 dollars 60 cents, Garland credited on tho judgment he afterwards obtained on the last mentioned bond. Thai in November 1819, Garland caused a sale to he made of the slaves morí» gaged by the last deed of trust, and purchased the greater part of them himself, at a great sacrifice; which he effected by refusing to let his own creditors bid at the sales, to the amount of the debts he owed them. The proceeds of these gajeg were 6020 dollars 50 cents, which sum was also credited on the judgment Garland afterwards obtained on the bond of November 1818. This judgment, recovered against Clarkson in August 1821, was for 7483 dollars 70 cents, the debt mentioned in the bond, with interest thereon from November 14th 1818, subject to credits for the said sums of 588 dollars 60 cents, paid October 1st 1819, and 6020 dollars 50 cents paid November 25th 1819. Clark-son acknowledged in the bill, that he had had, during the course of these transactions, various dealings with Garland, for merchandize bought of him; and that he could not state, exactly, how the debts he had contracted in those dealings, had been brought into the bonds and deeds of trust before mentioned. But he charged, that all the contracts, bonds and deeds of trust, specified in his bill, were tainted with most exorbitant usury, and void; and therefore, that the sales made under the deeds of trust were void also, and as to all the purchases made by Garland himself, at those sales, especially the last, the sales ought to be held naught, and Garland compelled to restore the slaves to him, and render an account of the profits thereof. And he prayed that Garland and Jacobs might answer the allegations of the bill on oath; that Garland might exhibit detailed accounts of the transactions, and his books in which those accounts were kept; that an account of all the transactions between him and Jacobs, between him and Garland and Jacobs, and between him and Garland, might be taken, in which no interest whatsoever might be allowed to them, but only the principal sums due them; that they, respectively, might be decreed to refund the excess, if any, paid by him above the principal; that Garland might be compelled to restore the slaves he had bought at the sales, and render an account of, and pay him, the profits thereof; and that Garland should be injoined from further proceedings on his judgment on the bond of November 1818; and general relief.</p> <p>The injunction was awarded.</p> <p>Jacobs, in his answer, went into the details of the two transactions of March and May 1815; and stated, that those contracts were bond fide sales by Clarkson to him, the first of 16 slaves for 2335 dollars, and the last of 14 slaves for 2666 dollars 66 cents, and conditional re-sales of the same slaves by him to Clarkson, for 2935 dollars, and 3394 dollars, payable in March 1816, provided those prices should he then punctually paid: ho denied, that the sales were devices to cover usurious loans, or that there was any treaty for a loan, or any borrowing or lending, actual or intended by either party: but he owned, that Clarkson told him he wanted certain sums of money, and offered as many slaves as would command those sums. He denied the usury charged to have been practised by him and Garland in 1816: but his account of the transaction was not very distinct: he said, that iu March 1812, he agreed with Garland to take a moiety of the benefit and burthen of a contract which he had made with Clarkson, in February preceding, whereby Clarkson was to sell his crop of tobacco to Garland, for 11 dollars 15 cents per cwt. and Garland to lend Clarkson 7000 dollars on simple interest; and the product of the tobacco was to be applied to die payment of sundry debts of Clarkson due to different persons, and the debt due to Jacobs among the rest: that tile 7000 dollars secured by the bond of August 1816, was made up of the debt due Jacobs on the transactions of March and May 1815, with simple interest thereon, and of some claims of Garland against Clarkson: that he contributed a moiety of the 7000 dollars; and Garland, in 1817, accounted to him for the same with interest thereon ; and, thenceforth, he ceased to have any concern in ov knowledge of the transactions.</p> <p>Garland, in his answer, denied all the allegations of the bill generally, and each allegation in particular, which imputed to him. usury, extortion or oppression, or knowledge of or participation in the usury and extortion imputed to Jacobs. He stated, that Clarkson in February 1816 sold him his crop of tobacco at the price of 11 dollars 15 cents per cwt. stipulated by contract in writing (which he exhibited), and pe agree(j ^o advance for Clarkson 7000 dollars more, to be applied to the payment of certain specified debts of Clarkson, of which the debt to Jacobs was one: in these contracts Jacobs had no concern. That the debt due to Jacobs, amounting to 6329 dollars, was paid off in March 1816. That, in August 1816, Jacobs took an interest in the debt of 7000 dollars, and in the tobacco contract: and Clarkson gave Garland his bond for the 7000 dollars, and another bond for 2465 dollars 56 cents, for moneys due Garland on other accounts; and a deed of trust mortgaging slaves to secure payment of both debts. That no usurious premium was included in either, nor was any contracted for. That in 1817, Garland, at Clarkson’s request, paid Jacobs the portion of the debt of 7000 dollars due to him. That, in. August 1817, Clarkson gave Garland a new bond for 11250 dollars, payable in June 1818, and a new deed of trust of slaves, to secure the debt: and these securities were given for the then amount of debt justly due to Garland, on good and valuable consideration; without any usurious premium for the loan or forbearance of money: but the answer did not state or explain how, or of what particular items, this large debt was made up. That all the payments made him by Clarkson were fairly credited. That at the sale of the trust subject in November 1818, which was a cash sale, he purchased ten of the slaves, without any previous arrangement with Clarkson on the subject, and after-wards sold them to him, at his earnest request, on a credit, at an advance of 600 dollars: and then he took Clarkson’s bond for 7483 dollars 70 cents (tire just balance of debt then due him, without any usury whatever) and the deed of trust of 25 slaves to secure the same. That this trust subject was sold in November 1819, and fairly sold, without any contrivance of Garland to reduce the price, and fairly purchased by him: the proceeds of this sale, as well as the price of 8 hogsheads of tobacco delivered by Clarkson in October 1819, were credited on the bond, and reduced the balance to 1331 dollars 32 cents, bearing interest from November 25th 1819, for which Garland had obtained judgment, and which was justly due to him.</p> <p>There was much documentary evidence exhibited, and many depositions filed, bearing on the questions of fact put in issue.</p> <p>1st. The written contracts between Clarkson and Jacobs, of March and May 1815, (considered in connexion with Jacobs’s answer), were relied on to prove the usury imputed to those transactions. The first was a bill of sale executed by Clarkson and John Barnett to Jacobs, under date March 23d 1815, whereby they conveyed to him 16 slaves by name, in consideration of 2335 dollars 5 with two memorándums indorsed thereon 5 one, stating that the slaves were delivered to Jacobs ; the other, stating that Clarkson and Barnett had the same 16 slaves, the property of Jacobs, then in their possession, on hire till March 23d 1816 5 and they being desirous of purchasing the slaves of Jacobs, he agreed, that if they should pay him 2935 dollars on or before March 23d 181G, he would and did thereby, in consideration thereof, sell the slaves to them, but if either of the slaves should die, Jacobs was to receive the same sum, and no less, for flie survivors, and if the 2935 dollars should not be paid by the 23d March 1816, this agreement was to be utterly null and void. The other contract was a bill of sale executed by Clarkson to Jacobs, under date May 22d 1815, whereby Clarkson conveyed to Jacobs 14 slaves, in consideration of 2666 dollars 66 cents j with two memorandums indorsed thereon, exactly like those indorsed on the first contract, save only that the sum which was to be paid by Clarkson for these slaves, on the 23d March 1816, was 3394 dollars 17 cents. And for proof of Garland’s knowledge of the true character of these contracts, before he mixed his own with them, many circumstances, disclosed by the evidence, were relied on.</p> <p>2dly. The contract between Clarkson and Garland, for the sale of Clarkson?s crop of tobacco to Garland, was exhibited. It was dated February 6th 1816; and it bore, that Clarkson sold Garland his crop of tobacco, supposed about 20000 pounds, deliverable the 1st May following, for which Garland was to allow him 11 dollars 15 cents per cwt. and to advance him besides 7000 dollars, to be applied to the payment of sundry specified debts, and among them 6495 dollars 83 cents to Jacobs. There were depositions taken on Clarkson’s part, for the purpose of proving, that the fair market price of thd tobacco, at the time, was 20 dollars per cwt.; that in the original contract made in February 1816, the price stipulated for the tobacco, was 20 dollars; that that was a verbal contract, and that the written contract exhibited, by which the price was reduced to 11 dollars 15 cents, was in fact signed some time after the contract was made. On Garland’s part, depositions were filed, for the purpose of proving, that the agreed and the fair price of the tobacco, was truly stated in the written contract to be 11 dollars 15 cents.</p> <p>3dly. As to the 600 dollars also, demanded by Garland and agreed to be paid by Clarkson, as an advance upon the price of the 10 slaves purchased by Garland at the sale of November 1818, and then sold by him to Clarkson, there was evidence on both sides; evidence on Garland’s part, that he bought the slaves at the sale on his own account, and after his purchase sold them to Clarkson on a credit; evidence on Clarkson’s part, adduced to sustain his charge of extortion and oppression in this particular.,</p> <p>4thly. Garland exhibited with his answer, a series of accounts of the transactions between him and Clarkson, wherein there was a debit to Clarkson, under date May 1st 1817, in these words; “To this sum, which you agreed to allow for trouble in attending to your business in settling your accounts with different persons, and for interest on various sums oi small amount, on which no interest has been charged, and for interest on about 1500 dollars advanced for you in 1816, and not contemplated in the loan of 7000 dollars— $482 74.”</p> <p>5thly. From the accounts exhibited by Garland, it could not be ascertained, how the large debt of 11250 dollars, secured by the bond and deed of trust of August 1817, was made up.</p> <p>6thly. There was no evidence to sustain the imputation against Garland, of unfair conduct and contrivance, at the sale of November 1819, to enable him to purchase the slaves he then bought, at under prices; and he adduced evidence to shew, that Clarkson himself voluntarily produced the slaves to be sold by the trustee, was present at both sales, and made no objection or complaint; and that Garland’s conduct was fair, and the prices he gave, the reasonable value of the property.</p> <p>Clarkson died pending the suit, and it was revived in the name of Rives his administrator.</p> <p>On the motion of the plaintiff, the chancellor awarded an injunction (November 5th 1824) to restrain Garland from removing out of the state, the slaves held by him under his purchases at the sales of the trust subject.</p> <p>The cause coming on for hearing in October 1825, the chancellor decreed, 1. That, as to Jacobs’s purchases and Clarkson’s re-purchases of slaves, in March and May 1815, they were shifts to avoid the statute of usury, and the transactions consequently usurious; that, so far as Jacobs was individually concerned, Clarkson was to account for the prices Jacobs paid him for the slaves, and legal interest thereon, instead of the prices he contracted to pay Jacobs for the redemption of them; and that an account of these transactions should be stated by a commissioner on this principle. 2. That, as to the joint transactions of Garland and Jacobs with Clarkson, the commissioner should state .accounts of them, and if there was usury in them, should strike it off, and charge Clarkson with legal interest only. 3. That as to the transactions between Clarkson and Garland, the commissioner should examine and state all the accounts between them, strike off the usury if any should appear,, and charge legal interest. 4. That there was no objection to Garland’s purchases at the sales of the trust subject. 5. That there was no necessity for tire injunction awarded the 5th November 1824, and that it should be discharged, as having been improvidently awarded. And the court declared, that, without giving any other opinion as to what might or might not be usurious in any part of the transactions, or any opinion on the tobacco contract, it would expect of the commissioner, such a state of all the accounts, as he should consider just and proper, or as either party should require.</p> <p>Clarkson’s administrator appealed to this court.</p>

On the 17th of August 1826, James TV. Breckenridge and Eliza his wife, of the county of Prince George in the state of Maryland, made a deed to Colin Auld of the county of Alexandria in the district of Columbia, which stated on the face thereof, that Breclcenridge and wife, for the consideration of 20,000 dollars, conveyed to Auld three pieces of land in the county of Mason in the state of Virginia, forming part of a tract called Graham’s station.

Hill exhibited his bill in the Superior court of Chancery of Winchester, setting forth, that having become surety for Hite to Bull for 1961., Bull many years afterwards, and after Hite had become insolvent, applied to Hill for payment, and Hill gave Bull a deed of trust on his own property to secure the debt; that Hill made an arrangement with Hite (who was clerk of Jefferson County court) that he should appropriate a sufficient amount of clerk’s tickets to meet the payment…

This was an action of slander, brought by the appellee, in the District Court of Petersburg.

In a suit in the late High Court of Chancery, brought May 31, 1793, on behalf of Edward & Richard Jones, against Daniel Jones, executor of Daniel Jones their father, for a settlement of the accounts of his executorship, (which suit, having abated by his death, was revived against Francis Fitzgerald, his executor,) Master Commissioner Rose, to whom the said accounts were referred, reported a balance due to the estate of 4791. 4s. lOd.

This was a suit instituted originally In the County Court, on the Chancery side, by the appellant. The bill states : that the complainant in 1761 or 1762, purchased a tract of land from H. Hatcher, for which he paid a valuable consideration. That this land was surveyed for the said II.

Galt and Johnson, partners in trade, obtained a writ in debt, against IDllis Pur-year, from the Superior court of law for Goochland county. The sheriff returned, that the writ was executed on Lilis Puryear, who was “bailed by William Goode.” The bail bond is part of the record, and though the name of William Goode is inserted in the bond, it is signed only by Lilis Puryear, and Richard Redford; Redford’s name is not in the body of the bond.

Ashby brought ejectment in the district court of Moorfield against Kiger and others, for a piece of land in Hampshire; wherein a verdict was found for Kiger and others, designating the boundary line between them and Ashby; Judgment was given for them accordingly: and they proceeding to take possession under the judgment, without any writ of habere facias possessionem, took possession of more than Ashby thought the judgment gave them, or than they had title to.

Reuben D. Hill, executor of Richard Rankin deceased, brought a suit in the superior court of chancery at Staunton, against the administrators of James Rankin, for the purpose of obtaining satisfaction of a judgment which he had obtained against them, upon the bond of their intestate.

This was au appeal from the District Court of King and Queen. The appellants, on the 12th of October 1787, sued out of the General Court, a writ, in case, against the appellee, without any indorsement of the nature of the action. The sheriff executed the writ, and took appearance bail, and so returned the writ.

<p>Covenant — Not Guilty — Verdict.*—A plea of not guilty to an action of covenant is cured by a verdict.</p>

This was a suit brought by the appellee in the * High Court of Chancery, to be relieved against a judgment for 50/., which, by an award of arbitrators, (made under a rule of Court,) he had been adjudged to pay, with interest insisting that the 50/. was only intended as a penalty to enforce the punctual payment of 100/., or to compel the appellee, in lieu thereof, to take up the appellants bond to one Garret, for that sum, and which he was prevented from doing by the…

<p>Evidence -Witness— Wiie. †— In suits in which the husband is not immediately and certainly interested, but may be so eventually, the wife is a competent witness; but the jury are to judge of _ her credibility._</p> <p>Trover — Witness†—Case at Bar. — In trover 'by R. against B. for goods which had heen lent hy B. to the wife of C. and conveyed hy C. to R. the wife of C. is a competent witness.</p>

<p>Appeal*- Death of Appellee- -Trial without Scire Facias.</p> <p>—The appellee hems' dead, an appearance was entered for the executors, and, on the motion of their counsel, the cause was tried without waiting for a scire facias. — Contra Wood v. Webb.</p>

This was an appeal from a judgment of the District Court of Fredericksburg, reversing a judgment of an inferior Court, and awarding a repleader from the plea. It was an action of debt brought by the appellant against the appellee, upon a bond given by the testator and a certain John Pattie.

This was an action of debt brought by the appelpellant in the District Court of Petersburg, upon a prison- hounds-bond- the breach assigned in the de~ claration, is nearly in the words of the condition of the bond, with an averment, that the prisoner did depart and escape from the bounds, without being discharged by due course of law. Pleas, 1st. Conditions performed. 2.

This court, upon an appeal formerly taken in this cause from a decree of the High Court of Chancery, having ordered an issue to be directed by the Court of Chancery, to try, “what was the current and average price, in sterling money, on the 18th day of April 1781, of tobacco passed at the ^inspections of Page’s Richmond, Manchester and Peters-burg the issue was made up accordingly, and directed to be tried in the District Court of Richmond.* The parties waving the trial by…

<p>The action against a high sheriff and his sureties, upon his official bond, for the misconduct of his deputy in his proceedings on an execution in his hands, must be at the relation of the plaintiff in the execution; and cannot be sustained, at the relation of the parties for whose benefit the execution is issued.</p>

<p>At what time Indians might be made slaves of, and when not; —and what Indians they were. J</p>

In December, 1806, Hugh Campbell exhibited his original bill against Philip Slaughter and Charles Carter, in the superior court of Chancery of Richmond, setting forth, that in August, 1802, Campbell bought of Slaughter a tract of 949 acres of land, according to boundaries described in a written contract between them, at nine dollars per acre for S98 acres thereof, and eleven dollars per acre for the other 351 acres; that Campbell had paid all the purchase money, but the…

This was a supersedeas to a judgment of the General Court. The case was — Johnson brought an action on the case in the General Court, against one Watson, and the writ, which was directed to the sheriff of -county, was returned executed, by White, thus, “executed, W. White d. s.” without mentioning the name of his principal, or of the county in which he acted as deputy sheriff.

In this case a decree was rendered in the Superior Court of Chancery for the Richmond District, March 16, 1804, dismissing the bill with costs; from which decree the plaintiff prayed an appeal, which was allowed him “on his entering into bond with sufficient security in the Clerk’s office of the said Court, for the prosecution thereof, on or before the first day of the next term.” This he failed to do; and, the 6th of October following, on his motion by Counsel, and for…

This was an appeal, from a judgment of the district Court of Prince Edward.

This case was slated by Allen, J. at the time of delivering his opinion, to be as follows : In the year 1792, Stephen Jett, the owner of the equitable title to certain lots in the town of Christiansburg, Montgomery county, (the legal title to which was to pass through tho trustees of the town, and was then outstanding in the original patentee or his representatives,) executed to William and Gilbert Christian his title bond, by which he bound himself to make or cause to be…

At a court of quarterly sessions held for the county of Floyd, in November 1840, a writing, purporting to he the will of George Hylton senior, deceased, bearing date the 13th day of June 1835, was produced in court, by Nathaniel Hylton the executor therein named, in order to be proved.

This was a suit originally brought in the County Court of Berkeley, by Baylor, to foreclose the equity of redemption, which Kennedy had in a tract of land.

This was an action of ejectment, in the District Court of New London, for 342 acres of land lying- in Pittsylvania County. The Jury found a special verdict, stating the following facts: John Fox obtained a patent from the Commonwealth for the land in question, on the 8th of July, 1780.

<p>E. C. bequeathed 4 slaves to C. C. and F. T. trustees, in trust to apply the profits to ‘maintermnce of testator’s daughter, J. B. and her husband, S. K. B. and tkeir children, during lives of daughter and husband, and of survivor, remainder to the children of the daughter by that husband: both trustees declined the trust: no trustee was substituted: the ex’or delivered the slaves to Mrs. B. her husband being then in Europe, where he died: B. then married V. who, in 1798, sold R. all the trust slaves, for Ms wife’s life, R. having notice of the trust: B. removed them from Fredericksburg to Augusta, held some there, gave away some, sold others: the second husband, V. died in 3806. Upon bill in chancery, by Mrs. V. and her children, by B.( against B. praying discovery of names &c. of the slaves and their increase, restoration of them and account of profits, and (on a charge that R. would remove the property out of the state) an injunction to restrain him from doing so; and B. not pleading to the jurisdiction: Decreed,</p> <p>1st. B. had no right to hold the slaves, even during Mrs. V’s life, as they were a trust subject, and the profits applicable to maintenance of her and her children ; though qiur-re how far her interest passed by her second husband’s sale to It.</p> <p>2ndly. The court of chancery had jurisdiction of the case; because the charges in the bill of the necessity of a discovery, and of the design to remove the slaves out of reach, saved the bill from being demurrable, and if that charge were only colourable, B. should have pleaded to the jurisdiction; and (chiefly) because the slaves were a trust subject, represented by no trustee who could sue at law, and which equity alone could apply ^ the purposes of the trust.</p> <p>Srdly. B. could not protect himself under statute of limitations; because he bought with notice of the trust, and so was charg'ed with it; and because his removal of the slaves to a distant county, thus keeping owners in ignorance where they were, was an obstruction to the assertion of their rights by action, precluding him from pleading the statute, within § 14. 1. Rev. Code, ch. 128. p. 491.</p>

The appellees instituted this suit in the High Court of Chancery, in order to recover back certain warrants, and the interest received upon them, also warrants for about 5000 acres of land, which their testator had obtained for his services during the war, and which had been unfairly purchased from him by the appellants, for the trifling consideration of £20, at a time when, the testator was intoxicated with liquor, and incapable of contracting.

Iu the year 1833, Thomas O. Taylor brought a writ of right against John Burnsides, in the circuit superior court of law and chancery for the county of Lewis. The count demanded two tenements, one containing 2560, and the other, 1280 acres of land. The plea of the tenant defended the title of only four hundred acres of the land claimed by the demandant, and disclaimed title to the residue. This four hundred acres was the subject of controversy in this suit.

The appellees, as executors of Bannister, under a power in his will, leased certain mills called Battersea, belonging to the estate of their testator, to the appellants, who having received an assignment of a judgment obtained against the executors, insisted upon retaining so much of the rent, as was equal to the amount of the said judgment, they having fully paid up, what was due on account of rent, except as to this sum.' — ■ The executors, refusing to admit the offset,…

<p>The appellant Hill, with two others, were endorsers of a bill of exchange, drawn by Braxton in favor of Southerland, which was returned protested. The parties having agreed upon -the sum due by the said bill In current money, the drawer and endorsers gave their note to Southerland on the 28th of February, 1776, directed to the Clerk of King William Court, where a suit on the bill was pending, agreeing to confess judgment for the amount due, (being at that time 778L 7s. Ad., at the exchange of 15 per cent.) with Interest at the rate of five per centum per annum, from the let of June following. Southerland held op this note until 1784, when, without notice to any of the parties., ho procured a judgment to be entered up for 3611 6s. lOd, the balance which appeared, by an account filed by the said Southerland, to be then due to him. An execution being sued out upon this judgment, Braxton, obtained a supersedeas, and reversed It. Southerland then instituted a new suit against Hill alone, and got judgment in 1787, for 1400/. 5s. 9d.</p> <p>The appellant Hill filed his bill in the High Court of Chancery, praying an injunction to this judgment, and stating, as the ground of his equity, that the bill had been nearly, if not wholly, paid off by Braxton and that, in consequence of a mistake in his counsel no defence had been made at law, but that the judgment had passed by default in the office, and was afterwards confirmed against him in Court.</p> <p>Upon the answer of Southerland to the injunction bill. the. Court directed Braxton to be made a party complainant, who filed his bill, stating the same facts those set forth by Hill, and further, that he, Braxton, had, in the year 1783, paid to the said Southerian¿^ two bonds of Thomas Butler, amounting to 937/. 15s. Id, which were to be applied to the credit of the protested bill;—that Southerland was also indebted considerably to him in account, the balance of which, if necessary, ought also to have been applied to that debt.</p> <p>The defendant, in his answer to this bill, admits the payment of the bonds, but denies that any application of them to the credit of the judgment was directed by Braxton; that the defendant had applied 661/. 12s. Bid. of those bonds to the credit of this judgment, and part of the residue, (by Braxton’s particular directions,) to the discharge of a bond dated in February, 1776, due to him by Braxton, in which Claiborne was surety; and the balance to a private debt of Braxton’s.</p> <p>There was no positive evidence in the cause that Braxton directed the application of this, or of any other payment, to the credit of the judgment.</p> <p>It was proved, that immediately after the payment was made, Braxton sent a message to his endorsers, informing them he had discharged the judgment; but this was not delivered in the presence of Southerland, nor does it appear that any thing passed between them at that time upon the subject. It was proved by one witness, that sometime after the bonds were received, Southerland declared he should lose money by taking them; but it did not appear whether this happened before or after the first judgment was entered up in 1784. That as late as the year 1786, Southerland enclosed to Mr. Braxton his and Claiborne’s bond, with some accounts, which Braxton received without objection, and that some time afterwards Southerland, mentioned that he had been advised to deliver to Mr. Braxton those papers, and to rest his demand upon the protested bill.</p> <p>The Master Commissioner, to whom the accounts between the parties were referred, in his first report, applied the full amount of the bonds to the credit of the protested bill, leaving a balance of only 34/. 17s. 9\d. due upon it. A similar statement had been before made by auditors, to whom the accounts had been referred. In stating this account, the Master charges interest on 778/. 7s. A d. at the rate of Jive per cent. from June, 1776, to December, 1784, when the last payment was made; and credits all the payments, with interest on each, from the time they were made, until the same period in 1784. The i-eport contains also the private account of Braxton with Southerland, which is composed of the bond of the former to the latter, in which Claiborne was surety, and of some other items on the debit side, and of goods sold to Southerland by Braxton, in the years 1777, 1778, and 1780, on the credit side. The Master made two statements of this account, in one of which he scales the credits, and in the other fixes them at their nominal amount, submitting that question to the Court.</p> <p>The cause coming on to be heard, the Court of Chancery made a decree in conformity with the following opinion, viz. : “ That the goods and merchandise sold and delivered by the plaintiif, Carter Braxton, to the said Fendall Southerland, between the years 1776 and 1781, ought not to be discounted at the money prices then charged against a debt contracted before the commencement of that period, but ought to be discounted at their value, which, in this case, may be nearly, perhaps, ascertained by reducing those prices according to the scale for proportioning the depreciation of paper money ; that the payments made to the said Fendall Southerland by the plaintiff, Carter Braxton, not appearing to have been directed by him, at the times of payment pr before, to be entered to his credit in that account, wherein he is made a debtor for the bill of exchange, the said Fendall Southerland might enter them to the credit of the plaintiff, Carter Braxton, in any other account subsisting between those parties ; and that for the principal money, damages, and charges due by the protested bill of exchange, in consequence of the settle* merit thereof made the 28th of February, in the year 1776, the said Fendall Southerland was entitled to no</p> <p>more than 778/. 7s. 4d. of current money of Virginia, with interest thereon, at the rate of five per centum per annum, from the 1st day of June, then next following.”</p> <p>The injunction is made perpetual, except as to 225/. 18s. 5fd. appearing, by the accounts stated according to the principles of the above opinion, to have been due to the said Fendall Southerland, the 7th oí December, 1784, with interest from that time ; and except, also, as to the costs in the action at common law.</p> <p>From this decree the plaintiffs appealed.</p>

This suit was commenced in the superior court of chancery formerly holden at Clarksburg. The subpoena was issued the 23d of July 1822, returnable to August rules; at which time the bill was filed in the name of William Vause.

This was an action on the case brought by the appellants in the District Court of .Yew London.

This was a suit instituted in the High Court of Chancery, by the appellant, for the specific execution of a parol agreement made between himself and the defendants, his brothers, in the life time of their father, that whether their father should die testate or intestate, they would, make amongst themselves an equal distribution of his estate.

This was an appeal from the chancery court of Winchester. Thomas McPherrin and Catharine Gaither, presented a bill of injunction to the chancellor, setting forth the following case : that the complainant Thomas, borrowed a considerable sum of money from the Bank of Martins-burg and the Merchants’ Bank of Alexandria, with David Hunter and Moses Hunter as his endorsers: that he executed a deed of trust upon two tracts of land in Berkeley county, containing together two hundred…

<p>If after a supersedeas obtained the defendant in error die, a scire facias must be awarded against his executors, or administrators, and not a new writ of supersedeas, because the latter could not be considered as a continuing process, and consequently, the execution could not sue upon the supersedeas bond first given.</p>

<p>Evidence — Account Books — When Not Admissible.— The book of accounts and oath of the party, are, in no case, admissible to charge a person with goods-delivered, by order, to a third person, unless the order be otherwise proved.</p> <p>Same — Same—Same.—If there be no other evidence to charge a person with a particular item but his admission and consent to be charged, on certain conditions, it can only be made upon the terms of that concession.</p> <p>Same — Same—Same—Case at Bar, — An entry on the books of the party, made by his clerk, who is not then to be found, together with the oath of the party as to the quantity of the article charged, though admissible as evidence in the case of a sale and delivery of goods, is not proper to charge the other party with those articles, delivered to the master of his vessel for safe keeping.</p> <p>Interest — Unliquidated Accounts.* — Interest ought not to be allowed upon accounts unliquidated and disputed, but from the institution of the suit.</p>

<p>This was a suit brought, in the hustings court of Richmond, by the appellant against the appellee, to recover his freedom. It was once before in this court, and was sent back to the hustings court for a new trial. 5 Rand. 126. The case was then stated and agreed by the parties, and was, in substance, thus:</p> <p>George Hunter, the plaintiff, was born in the county of Fairfax, in Virginia, the slave of Thomas W. Offutt, a resident citizen of that county; by whom he was given to his daughter, who married William M. Offutt, and after her marriage, removed with her husband, from Fairfax to the county of Montgomery in Maryland. And upon their removal to Maryland, they carried Hunter with them, as their slave; and he resided, with his master and mistress, in Maryland, about twelve years. After this residence in Maryland, he was brought back to Virginia, and was sold by his master William M. Offutt, in the county of Jefferson, Virginia, for valuable consideration, to one Hill; who after-wards brought him to Richmond, Virginia, as his slave, and there sold him to the defendant Fulcher, for 450 dollars. The sale to Hill, as well as the sale to Fulcher, was made after the year 1819. By an act of the general assembly of Maryland, passed at its session of November 1796, entitled an act relating to negroes, and to repeal the acts of assembly therein mentioned, it was, among other provisions, enacted as follows, viz. “ That it shall not be lawful from and after the passing of this act, to import or bring into this state, by land or water, any negro, mulatto, or other slave, for sale, or to reside within this state; and any person brought, into this state as a slave, contrary to this act, if a slave before, shall thereupon immediately cease to he the property of the person or persons, so importing or bringing such slave within this state, and shall be free.” And this provision of the statute of Maryland was, at the time when Hunter was carried thither by W. M. Offutt, and during all the time of Hunter’s residence there, and still is, in full force, as part of the statute law of that state.</p> <p>The question was, Whether upon this stale of facts, Hunter was entitled to his freedom ? The hustings court held, that he was not, and gave judgment for the defendant. Hunter appealed to the circuit court of Henrico, which affirmed the judgment. And then he appealed to this court.</p>

This was a, bill filed in the High Court of Chancery, by the appellee, as administrator of his wife, against the appellants, to recover ¿1000, which (the bill states) Bannister had agreed to give as a marriage portion with his daughter the appellee’s late wife.

This was an action brought by the appellant in the District Court of Vorthumberland, laving an assumpsit to himself. At the trial, the Court, thinking the action not sustainable upon the evidence given, directed a non-suit, to which the plaintiff submitted, but filed a bill of exceptions to the opinion, and obtained a su - persedeas to bring up the record before this Court

Edward W. Trent of the town of Manchester, having a wife, a brother, Dr. J. Trent, and a sister, Mrs. Leiper, but no children, and being the proprietor of Trent’s Bridge over James river, a stone quarry and lands adjoining, and sundry lots in Richmond and Manchester, and other property real and personal, made his will on the 29th of March 1813, which contains the following clauses: “I direct the payment of all my just debts, and wish the whole of my Richmond property sold…

The appellee brought an action of detinue against the appellants in the County Court, in 1783, for the recovery of two slaves. The declaration states a pos* session in the testator, and in the plaintiff as executrix.

This cause came on before the District Court of Prince Edward, upon a summons issued by the order of the Court, on the motion of Mrs. Wilcox the widow, and of Susannah Wilcox, the heir at law of Edmund Wilcox, against Philip Rootes and others; requiring them to produce the will of the said Edmund Wilcox / and on a cross motion of the said Rootes and others against Mrs. Wilcox and the heir , at law, to admit the said will to record.

In an action of debt on behalf of Towles, executor of Lewis, against Thomas Atwell’s, administrators, the instrument declared upon was a bond in the usual form, from a certain Johnson Smith to Michael Montgomery, in the penal sum of 1791. 14s. 4d, dated the 9th day of June, 1783, and conditioned to be discharged by the payment of 891. 17s. 2d. the first day of September then next ensuing; with a writing underneath in the following words: “I Thomas Atwell, of Prince William,…

<p>Partnership Demand* — Set=Oif— Goods Delivered to Individual Partner, † — -In an action ol assumpsit for a partnership demand, the defendant cannot give in evidence, as a set-off, the delivery of goods to an individual partner; although, by the direction of such partner, the partnership demand was entered as a credit against the goods.</p> <p>Appellate Practice — Taking Up Cause Out of Turn.— The Court will take up a cause, out of its turn on the docket as a delay case, if the only points in it had in another case been decided by the Court, against the appellant.</p>

THIS was an ejectment, brought in the District Court, by the appellee against the appellant. The declaration claimed the lands by the ordinary description. A mesne deed of conveyance under which the plaintiif claimed, called for the line in dispute by course and distance only. At the trial, the lessor of the plaintiif offered evidence, that a particular line represented on a plat in the cause, was well marked, and was the line of the plaintiff’s land.

This was an appeal from a decree of the High Court of Chancery, in a suit commenced there by the appellee, to set aside a conveyance from Herbert Clayborn, to Augustine Clayborn, his father and the testator of the appellant, as being fraudulent. The pray'erof the bill is, that the ap-pellee may be let in to have the estate of an execution, issued against the estate of the said H. Clayborn.

<p>Bill of Re view-* — Grounds for. † — Additional circumstances, merely conilrmintr facts proved in the original cause, do not furnish sufficient grounds lor a hill of review.</p> <p>Debt on Bond — Verdict—Account of Stale Transactions, ‡ —Where a Jury have found a verdict for the plaintiff in an action of debt on a bond, an account of transactions, which (although partly subsequent to the date of the bond) are old and stale, ought not to be allowed, for the purpose of obtaining a discount against it.</p>

ON an appeal from a decree of the High Court of Chancery, whereby a bill of review filed by the appellees against the appellant had been sustained, and relief granted pursuant to the prayer of the bill.

ON an appeal from a decree of the High Court of Chancery, whereby a Hill of Review filed by the appel-lees against the appellant had been sustained, and relief granted pursuant to the prayer of the bill.

This was a suit brought by the appellee in the High Court of Chancery against the appellants.

These two causes were argued together, on the main subject of controversy; (viz. whether the decision of this Court in Tomlinson v. Dilliard, 3 Call, 120, should be reconsidered, and confirmed or rescinded;) though several other distinct points occurred in each case.

<p>A. by covenant in July 1779, contracts to sell land to B. for £3500. whereof B. pays £1734. in cash, and covenants to pay balance, on A’s mu,king him a conveyance; in September following, B. pays balance in full, to A. in person, and receives possession; but A. makes no conveyance; or, if he made one, it cannot be found: in July 1791, B. by assignment sealed and indorsed on A’s covenant, assigns all his right &e. in the land to C. for value received; and G. takes possession: in October 1797, C. contracts lo sell the land to D. for £800. whereof £500. was to be paid in 1798, and £300. in 1799; and C. covenants to give D. possession on receiving the first payment in 1798, and to make him a lawful title on receiving the last payment: D. makes the first payment in 1798, and receives possession, which he and his heirs have ever since held: D. never makes or tenders the last payment; C. never makes or tenders the conveyance; and they both die. Upon a bill by C’s adm’r and heirs, against D’s adm’r and heirs, for specific execution of the contract of Oct. 1797, the chancellor decrees specific execution, and charges the balance of purchase money on the land; and decree affirmed.</p> <p>Pending the bill in the court of chancery, the escheator takes an inquisition on the land, whereby it is found that A. died seised thereof, without heirs, and without having disposed thereof, so that it has escheated: D’s heirs make no opposition to this proceeding, and give C’s heirs no notice thereof. Held, this escheat is no obstacle to the specific execution claimed by C's heirs against D’s heirs; but the commonwealth and her officers shall be injoined from any larther proceeding on the escheat.</p> <p>Quœre, Whether, under the circumstances, a deed from A. to B. conformably wit h the contract of July 1779, must not be presumed ?</p>

This was a suit in Equity, instituted in the County Court of Richmond, by the present appellant. The bill charges, that there were various specie dealings, between the intestate of the plaintiff, and the defendant; and that upon a settlement made in 1779, there being a balance found due from the defendant, he executed a bond for 7(54 current money, the amount thereof.

This was a bill in the circuit court of Alleghany county, by Hugh Lynch and others against Robert Sheen and others, asserting a right, common to the plaintiffs and the other inhabitants of the town of Covington, in a strip of ground along the margin of Jackson's river. .

This was an action of assault and battery, brought by the defendant in error in the District Court of Charlottsville. There were two pleas put in, 1st not guilty: and 2dly, a justification. The defendant, at the trial, offered the testimony of a witness, against whom a separate action was then depending at the suit of the plaintiff for an assault committed at the same time.

THE prisoner was indicted at the Circuit Court, held for Norfolk county, in October, 1811, for the wilful and malicious murder of Richard Bowden. Being arraigned, the prisoner filed three pleas, which are as follow. “ 1st Plea.

This was an action of slander brought by the appellee, in the District Court of Petersburg.

This was a suit in equity, instituted by the appellant in the County Court of Lancaster. The object of the bill is, to recover a compensation, for certain lands devised to the plaintiff, by his father; William Eustace, and afterwards recovered from him at law, by: some person having a better title.

This was an action upon the case, for goods sold and delivered, brought by the plaintiffs in the General Court, «from whence it was sent to the District Court of Northumberland.

The writ issued from the county court office of Caroline, in the name of Metcalfe against Lawrence Battaile, in debt, for $1500, due on a negotiable note, indorsed by the defendant; damage S200. The declaration was in debt, against Thomas R. Rootes jr. maker; and Thomas Rootes, and Lawrence Battaile, successive indorsers of a negotiable note, for $1500, and $3 70, notarial charge of protest.

This was an appeal from the District Court of King and Queen. The appellants, on the 12th of October, 1787, sued out of the General Court, a writ, in case, against the appellee, without any indorsement of the nature of the action. The Sheriff executed the writ, and took appearance bail, and so returned the writ.

THE defendant In error brought an action upoA the case against the plaintiff, in the County Court of Berkeley.—Plea non assumpsit.

This was an ejectment, brought in the Superior court of law for the county of Frederick, on the demise of David Lupton, against Joseph Tidball, for a “ certain piece and parcel of land with the appurtenances,” situate in the county of .Frederick, and containing 548 acres.

This was an appeal from the High Court of Chancery — Keeling, the plaintiff in that Court, borrowed from M’Rae in April 1778, a sum of paper money amounting to £422: 18, not *to be repaid in less than twelve months thereafter, which money, (the answer states,) belonged to the ward of M’Rae, being so much received by him in discharge of a specie debt due to the ward.

<p>The appellee being dead, an appearance was entered for the executors, and, on the motion of their counsel, the cause was tried without waiting for a scire facias.— Contra Wood v. Webb.</p>

The house of D. Warwick &f Co. and D. Warwick individually, exhibited their bill in the superiour court of chancery of Richmond, against Ambler, Robertson,… Held: of Robert Morris, early in the year 1819, and set forth the prices they gave for them : they alleged, that Morris was authorised and requested by Warwick & Co. to make sale of these slaves, and to remit the proceeds of sales to them; and that Morris did accordingly remit all the proceeds of the sales to them.

Childers by his bill, praying an injunc^ tion from the Chancellor at Richmond, set forth the following case. In October 1807, John Baker, executor of Solomon Gordon, sold to one M’Tyre, a lot in Manchester, under a power given by the will. M’Tyre executed a deed of trust to Cheatham and Childers, to secure the payment of the purchase money. This deed was never recorded; that from Baker to .M’Tyre was recorded.

By the decree of the court of appeals in this cause, entered at the time of the decision thereof reported in 3 Leigh 407. the cause was remanded to the circuit court of Augusta, with instructions to reinstate the original bill as to all the matters thereof, and to refer the accounts to a commissioner of the court, to be reformed and restated ; which commissioner was to be directed to keep the accounts of the personal estate distinct from the account of the land fund and the…

This was an appeal from a decree of the High Court of Chancery. The appellant filed his bill in that Court, stating, that his testator was indebted to the testator of the appellee by bond, upon which a judgment had been obtained in the year 1766, during the lives of the parties.

This Court, upon an appeal formerly taken in this cause from a decree of the High Court of Chancery, having ordered an issue to be directed by the Court of Chancery to try “ what was the current and average price, in sterling money, on the 18th day of April, 1781, of tobacco passed at the inspections of Pagers, Richmond, Manchester, and Petersburg the issue was made up accordingly, and directed to be tried its , the District Court of Richmond.* The parties waving the trial…

This was an action upon the case, brought by the appellee against the appellant in the District Court of Fredericksburg. The declaration contains two counts.

<p>continuance- Exceptions to Commissioner’s Report.*— A suit is not to be continued on the ground of exceptions to a commissioner's report, unless they ■were filed thirty days before the term, and good cause be shewn; but the Court will receive such exceptions at any time, provided the hearing of the cause be not thereby delayed.</p>

Upon an appeal from a decree of Pittsylvania County Court. In tbis cause, master Commissioner Greenhcw made a report to the last term; and, early in the present term, the decree of the court below was reversed, and a decree entered agreeably to the report of the Commissioner, to which no exceptions were then filed: and now Mr. Wick-ham, counsel for the appellees, moved to set aside the decree and to file exceptions to the report.

This was a supersedeas to a judgment of the General Court. The case was—Johnson brought an action on the case in the General Court, against one Watson, and the writ, which was directed to the Sheriff' of --County, was returned executed by White, thus, “ executed, W. White, d. s.” without mentioning the name of his principal, or of the county in which he acted as Deputy Sheriff.

The appellee brought debt against the appellant, on the following paper: “settled with Eanny Kile, and remains due her sixty dollars a year, from the year of seventeen hundred and seventy three, in November, *for her keeping of my house, witness my hand and seal, John Rowt.” (L. S.) Jan. 3d, 1807. Test, Robert Kile, Richard Staige, William Rowt. The defendant pleaded payment, and non est factum.

<p>Sale of Land with Warranty — Eviction of Vendee -Recovery,† — where land Is sold with warranty, and the vendee Is evicted, he ought to recover of the vendor, not the value ol the land at the time of eviction, but the purchase-money, with interest and costs.</p>

The appellee brought an action of indebitatus assumpsit, for the moiety of a vessel, sold to the appellants.—Plea, non assumbsit—and non assumpsit within five years. Replication, that the defendants did assume. Verdict for the plaintiff, that the defendants did assume, as declared against. The defendants filed a bill of exceptions, stating specially, what each witness examined in the cause had deposed, and that not one of them established an assumpsit within five years.

The complainant obtained an injunction, in this court, to stay waste. After the answers of the defendants had come in, and the cause was set down for hearing, the complainant died. stated that the representa-_ tivesof the complainant were numerous, muclulispersed, and not well known; and that it would be difficult, if not impossible, to trace their persons, rights, or residence, so as to serve any order of court upon them.

<p>Injunction — Death of Party — Revival—Dissolution.*— where the complainant in a bill of injunction dies; after answer filed, and before a decision of the cause, an order may be obtained, on the motion of the' defendant, that, unless the representatives of the complainant shall appear, within a certain time fixed by the Court, and cause the suit to be revived in their names, the injunction shall stand dissolved.</p>

<p>This ivas an appeal from a judgment of the Dís¿ trict Court of Prince Edward. The appellant moved that Court for judgment upon a forthcoming bond, executed by the appellees, the condition of which, (after reciting the execution, seisure, and re-delivery of the property by the Sheriff in the usual form,) is, “ that if the said Eldridge and Braclcenridge do deliver to the said Sheriff the said property, taken in execution and restored, at Buckingham, Court-house, on the 26th day of this month, or pay the said sum of 751. 8.?. then the obligation to be void, &c.” The Court over-ruled the motion, considering the bond to be informal and defective, in not stating, that the 26th day in the condition mentioned, was the day appointed for the sale of the property.</p>

<p>Injunction — Death of Party — Revival—Dissolution.*— Where the defendant dies, after filing his answer to a bill of injunction, and before a decision of the cause; an order may be obtained, on the motion of his representatives, that, unless the complainant, within a certain time fixed by the Court, shall revive the suit against them, the injunction shall stand dissolved.</p>

<p>Decree — Erroneous Entry — How Rectified.† — An erroneous entry of a decree may be rectified upon motion, at a succeeding term; and any mistake committed by the officers of the Court or gentlemen of the bar may be corrected in like manner.</p>

This was an action of debt, brought by the appellee in the County Court, upon a. bond, given by the testator of the appellant, with condition, that the said John Hawkins, would faithfully collect on commission, certain debts due to the appellee by bonds, (as by list annexed,) and would pay the amount so collected, and return an account of his collection, and also-surrender up all bonds not fully paid, when required; (except such as might be lodged with clerks, or with…

<p>Injunction — Death of Party — Revival—Dissolution.*— Where the defendant dies, after filing his answer to a bill of injunction, and before a decision of the cause; an order may be obtained, on the motion of his representatives, that, unless the complainant, within a certain time fixed by the Court, shall revive the suit against them, the injunction shall stand dissolved.</p>

<p>Injunction — Dismission — Statute — Application.‡—The Act passed the 20th of Jan. 1804, concerning the dismission of bills of ini unction in certain cases, does not apply to bills tiled before that act took effect.</p>

This was a suit originally brought in the County Court of Berkeley, by Baylor, to foreclose the equity of redemption which Kennedy had in a tract of land.

<p>Judgment* — Injunctiont†—Plaintiff Dead before Judgment Obtained. — An injunction ought not to be granted on title ground that the plaintiff at law was dead before the judgment was obtained in his name. But this error should be rectified by a writ of error coram nobis.</p> <p>Same-Same — Same—Demurrer.—If an injunction be granted in such case, the legal representative of the decedent may demur t,o the bill, and -the demurrer ought to be sustained.</p>

<p>.Sheriff’s Retura — Authentication.*—A sheriff's return of the service of a decree nisi, or of any paper not directed to him in his official capacity, ought to be authenticated by affidavit.</p>

This was an appeal from the chancery court of Lynch-burg. The case was shortly this : The legislature, by an act passed on the 18th day of February, 1812, authorised the erection of a toll bridge over James river, at Lynchburg, and incorporated a company, for that purpose.

This was an action upon the case, upon an indebitatus assumpsit, and quantum meruit brought in the District Court of Dumfries, by the appellants, owners and masters of'the ship General Washington for freight and primage.

<p>The appellees instituted this suit in the High Court of Chancery, in order to recover back certain warrants, and the interest received upon them, also warrants for about 5000 acres of land, which their testator had obtained for his services during the war, and which had been unfairly purchased from him by the appellant, for the trifling consideration of 20/., at a time when the testator was intoxicated with liquor, and incapable of contracting. The purchase was made by Valentine,, on account of himself and Reynolds, the latter of whom afterwards became the sole proprietor, by purchase from the former, of the whole interest. The fraud was clearly proven to the satisfaction of the Chancellor, who decreed; that Reynolds should restore to the plaintiff the military certificate received by him from the Auditor, for the pay, and depreciation of pay due to Waller, with interest thereon from the 1st oí January, 1782; or, if that certificate could not be restored, to deliver to the plaintiff other certificates., V the same kind, and of equal value, with like interest, (par of the land warrants having been assigned by Reyndds to Wallace, in his life-time,) the Court directed ai issue, to ascertain what damages the plaintiff had sistained, by his intestate’s not receiving the mjijtary Jfnc} warrant for the remainder of the land to which he was entitled.</p> <p>From tiis decree an appeal was prayed.</p>

This was an injunction obtained from the Chancellor at Richmond, by Taylor, trustee of Banghorne. The deed of trust dated March 1809 recited, that Banghorne had sold to Hobson a tract of land in Cumberland, to which Banghorne’s wife had not relinquished her right of dower; and that Hobson refused to pay the purchase money, unless she would.

<p>Appellate Practice — Attachment against Sheriff. — The Court of Appeals will not award an attachment against a sheriff for proceeding to carry into effect an execution under a decree, from which an appeal has been granted by the Judge who pronounced it; although he had notice of the appeal; if such proceeding took place before the record was brought up.</p> <p>Same — Supersedeas—Granting in Court — Statute.— Such a supersedeas as is merely auxiliary to the proceedings of the Court, may be granted in Court; notwithstanding the 4th section of the act of 1806, concerning the Court of Appeals.</p>

This was an appeal from the Richmond chancery court, where Barbara II. Johnson, by Francis Johnson, her husband and next friend, brought a suit against William Mitchell, acting executor of Thomas Mitchell, deceased, to recover a legacy which had been left to the said Barbara, by her father, the said Thomas Mitchell. By the will of the said Thomas, two thousand pounds were bequeathed to Thomas Johnson, in trust for the use and benefit of his daughter Barbara II.

<p>The Court of Appeals will Attachment1 against a sheriff for to can-din? effect an exe-cation under a Decree, a™ appeal has been granted by the Judge nounced'it-although he had notice of tive appeal; ceedhig took place before the record ■was brought</p> <p>Cl, , c oucn «■ on-persedeas as is merely ■auxiliary to the proceedings of the court may be granted in court; notwithstanding the 4th sect, of the Act of 1806, concerning the Court of Appeals.</p>

<p>Although a judgment at law against an executor, amounts to an admission of assets, and a Court of Equity will not relieve against that consequence, yet it would not, by an original decree, charge an executor on that ground.</p> <p>A tenant having leased land from an executor, cannot set-off debts' due to him by the testator against the rent. It might be otherwise, if the executor has acknowledged that he had a sufficiency assets.</p>

<p>Interest* — From What Time Allowed. — Interest is not to be allowed from a period antecedent to the time appointed for the payment of money, without an express stipulation to that effect; mere implication not being sufficient.</p> <p>Appeal — Taking Up Out oí Turn. — The counsel for the appellee may take up an appeal out of its turn on the docket, as a delay case, and confess error.</p>

.Appeal from the superior court of law of Brunswick county. The facts were these : Thornton Jett became the appearance bail of Robert Wallace, in a suit brought by Robert M. Walker, against the said Wallace. Judgment was obtained against the principal and bail, and an execution issued against the goods and chattels of the said Wallace and Jett. The forthcoming bond recites in the condition, that an execution had issued against Wallace only.

<p>This was a writ of right brought in 1831, in the circuit superior court of law and chancery for the county of Harrison, by the heirs of John Overton, deceased, against William Davisson. The demandants claimed title under a patent from the commonwealth, issued to their ancestor John Overton, and dated on the 23d of May 1786, for three thousand acres of land. The tenant claimed under two patents issued to Josiah Davis-son, one for four hundred acres founded on a settlement right, and dated the 3d day of January 1787; and the other for eight hundred acres adjoining the former, and dated on the 23d of the same month. The tenant disclaimed title to all but five hundred acres.</p> <p>On the trial of the cause, after the demandants had introduced the patent to John Overton, and proved that he died in 1822 intestate, and that they were his heirs, they introduced the survey upon which the patent issued, and also two other surveys made for the said Over-ton, and the patents which were issued upon these surveys. The first of these surveys called to begin at a poplar, on the west hank of Lost run. The second called to lie on the southeast of the first survey, and to begin at a comer 0f that survey, and to run from thence with one of its lines. The third called to lie on the southeast of the second, and beginning at one of its corners. rphe last was that under which the demandants claimed in this action; and in order to fix its locality, it was necessary to establish the beginning corner of the first survey. For this purpose, after proving that the surveyor had been dead many years before the commencement of this action, they offered evidence to prove the statements made by the surveyor, in relation to the execution by him of said surveys; these statements having been made about the time, or shortly after the surveys were made. To the introduction of this evidence, the tenant by his counsel, objected; but the court overruled the objection, and admitted the evidence, so far as the statements related to the acts of the surveyor when in the exercise of his official duty in making the surveys ; and were not inconsistent with his official report of such surveys, but in support of it. To the admission of this evidence, the tenant excepted. This is the tenant’s first bill of exceptions.</p> <p>The court having decided to admit evidence of the statements of the surveyor, the demandants then proved by a witness, that the surveyor came to the house of witness’s father, in. company with a certain Major Powers, and James M ’Kinney; and that whilst there, the surveyor stated that he had that morning marked a poplar for a beginning corner to some surveys he was making for said John Overton; and described the spot on Lost run where said poplar stood. That the witness some three or four months thereafter, saw a poplar marked as a comer, standing at the place described by the surveyor. That said Powers, and M ’Kinney, were the only persons in company with the surveyor, who stated at the time, that they were his chaincarriers in making said surveys. The demandants also proved that Powers had died many years prior to the institution of this suit; and they read copies of the certificates oí survey, to shew that the surveyor had omitted to note who were the chaincarriers. The demandants then offered a witness to prove that Major Powers told him, the day after said survey was made, that he was one of the chaincarriers employed by said surveyor to carry the chain for him in making said survey for said Overton; and that said Powers shewed the witness the poplar corner marked as the beginning corner of said Overton’s survey No. 1; and told witness, on the day after said survey was made, that they had marked said poplar on the preceding day, as and for the beginning corner of said survey No. 1. To the introduction of this evidence, the tenant by his counsel objected; and the court sustained the objection.</p> <p>In the farther progress of the trial, one of the demandants’ witnesses stated that in 1792 he examined the poplar above mentioned, and that it was marked as a corner on the easterly, westerly, and southerly sides; and then the tenant introduced the plat and survey No. 3, and claimed to lay it on the east of Overton’s survey No. 2: whereupon, the demandants, to account for the said tree being marked on the east side, and to disprove the correctness of the location insisted on by the tenant, offered to introduce a plat, and certificate of survey, made out for John Thomas, by the same surveyor who made Overton’s surveys, dated 28th April 1785; and also another survey made by the same surveyor, for Charles Levjis, dated 29th April 1785, the same month and year in which Overton’s surveys were made. The first of said surveys called to begin at the east comer of Overton’s survey No. 1, and thence with Overton’s line to the aforesaid poplar; and the second called for the first. But the court excluded the evidence; and the demandants excepted. This exception embraces the two last mentioned decisions. This is the demandants’ first bill of exceptions.</p> <p>The demandants also introduced evidence tending to prove that, at the time of the issue of the grants to John Overton, there was no actual possession of the lands embraced therein, held adversely by the tenant, or those un(jer whom he claimed; or that no person actually resided on said lands at that time, or at any time previous to 1799.</p> <p>In the progress of the cause the court directed a survey to be made, which taking the poplar as the beginning corner of Overton’s survey No. 1, shewed that the land in controversy was included within the boundaries of the patent under which the demandants claimed.*</p> <p>The tenant introduced in evidence, the patents before mentioned as having issued to Josiah Davisson. He also introduced a certificate of the commissioners appointed to adjust the claims to unpatented lands, dated in 1781, in favour of Josiah Davisson, for four hundred acres of land on Pleasant creek, to include his settlement made in the year 1775. He also introduced a deed dated in 1801, from Josiah Davisson to himself, for three hundred acres; but the record no where shews how he derived title to the other two hundred acres.</p> <p>The tenant then introduced evidence tending to prove that settlements were made on the land embraced in the patent for four hundred acres, in 1775; and that the rights of the parties making these settlements, had been vested in Josiah Davisson, prior to the emanation of the patents to him; that the three hundred acre tract held by the tenant, was part of the land included in the patent founded on the right of settlement; and that the two hundred acres was part of the land included in the patent founded on the ‘pre-emption right; that Josiah Davisson resided on the land embraced in the first patent in 1775, used, and cultivated the same, claiming it as his own, from that time until 1801, when he conveyed it to the tenant, who took immediate possession thereof, and has continued to reside thereon, claiming it as his OWn, to this time.</p> <p>After the evidence in the cause was closed, the demandants by their counsel, insisted upon their right to commence, and conclude the argument before the jury; hut the court held that the tenant had the affirmative of the issue; and was entitled to open, and conclude the argument. To this opinion of the court the demandants excepted. This is the demandants’ second bill of exceptions.</p> <p>The demandants then moved the court to instruct the jury:</p> <p>1st. That no possession held by the tenant, or those under whom lie claims, prior to the emanation of the patent under which the demandants claim, will bar the demandants in this action, unless such possession was held by the tenant, or those under whom he claims, under a grant from the commonwealth.</p> <p>2d. That if no prior grant from the commonwealth had issued for the land included within the patent under which the demandants claim, the patent from the commonwealth to John Overton, invested him with seisin of the land so as aforesaid included within his patent.</p> <p>3d. That to constitute an adverse possession, such as would bar the demandants’ claim, there must have been an actual entry upon, and occupancy of the lands, by the tenant, or those under whom he claims, under title, or claim of title, adverse to that under 'which demandants claim; and that such actual adverse possession must have commenced since the issuing of the grant to the ancestor of the demandants; and have continued thirty years after the adverse possession, and occupation commenced, during the lifetime of the said John Over-Ion; or if the same had not continued thirty years during the lifetime of John Overton, then the said actual adverse possession must have commenced as aforesaid, and been continued by the tenant, or those under whom he claimS; for fifty years before the commencement of this action.</p> <p>4th. That if from the evidence, they should believe at tbe time of making the original survey, a poplar comer was made, and marked as and for a beginning corner of said survey No. 1; and if they believe said poplar corner so made, and marked, stood at the place designated on the plat and report returned in this cause, at letter A, then, in the absence of proof of any other corners, or other boundaries, and of any calls for natural objects, conflicting with the calls for courses and distances in said patents No. 1, 2 and 3, the jury should make out the identity of the land claimed by the demandants, by the courses and distances called for by the said patents No. 1, 2 and 3, from the said corner at A; although they should be of opinion that said surveyor, when making said original survey on which said patents No. 1, 2 and 3 were founded, never saw any of the lines, or marked any of the corners called for, except said corner at A.</p> <p>5th. That if they are satisfied any object is called for in said patents, or either of them, at a place where the same is not found; yet if they are satisfied from the evidence, and other calls of the patent, that the call for such objects at the place where the same is not found, was' made through mistake; and if they are satisfied from the evidence, that the land described in said patents to John Overton, is situated where the demandants claim it to be, a mistake in calling for an object where the same is not found, should not vitiate or destroy the validity of the patents under which the demandants claim.</p> <p>The court gave these instructions; and the tenant excepted. This is the tenant’s second bill of exceptions.</p> <p>The demandants farther moved the court to instruct the jury, that if they were satisfied from the evidence, that the land claimed by the tenant, is part of the land so as aforesaid granted to said Josiah Davisson; and that the same is covered by the grant to the said John Overton, under which the demandants claim; that the issuing of such subsequent grant to the said Josiah Davisson, and the payment of the taxes on the land so granted to him, do not amount to an ouster of the said John Overton, of the seisin conferred upon him by his grants; and that said Overton could not be disseized so long as the land included within the grant to Davisson, remained unoccupied, and in a state of nature; or until the said Josiah Davisson, or some one claiming under him, actually entered on said land included within his patent aforesaid, and used the same by taking the profits. The court being of opinion, that the issuing of the grant aforesaid, to Davisson, and the payment of taxes on the land so granted to him, were not sufficient of themselves, to work the ouster of the prior grantee Over-ton; but that an entry was necessary to such ouster; and that such entry should be accompanied by such open acts of ownership as were consistent with a claim of title to said land; but that such acts of ownership were not to be restricted to taking the profits; the court, thereupon, gave the instruction, in the terms proposed by the demandants, with the addition after the word “profits,” of the words 11 or by the open exercise of acts of ownership over the same.” To so much of the instruction as is embraced in the words added by the judge, the demandants excepted. This is the demandants’ fourth bill of exceptions.</p> <p>The tenant also moved the court to instruct the jury, that without proof of actual entry by John Overton in his lifetime, or the demandants since his death, upon the land granted to Josiah Davisson; the granito said Over-ton, did not confer upon him or his heirs, such seisin as will entitle the demandants to recover the land in the possession of the tenant, if the jury is satisfied from the testimony in the cause, that at the time the grant issued ' to Overton, Josiah Davisson was in the actual possession of the land granted to him, and that he and the tenant have continued in possession thereof, under the certif[cate of the commissioners for adjusting claims to unpatented lands, and the grant founded thereon, claiming the same adverse to the said Overton. But the court being of opinion, that it is a principle of the common law of England, that the king cannot be disseized; that this prerogative of the crown, like the maxim nullum tempus occurrit regi, has devolved upon the commonwealth; and that accordingly the commonwealth cannot be disseized of its public domain ; that a transfer of the legal title by the commomoealth of any portion of its domain to an individual, must be (under the statute) by a grant; that a grant by the principles of the common law, and by force of the statute immediately on its execution, divested the estate out of the commonwealth, and vested it in the grantee; and therefore as the commonwealth could not have been disseized, its grant confers seisin of the land granted, upon the grantee; and as actual seisin (by force of the statute), is not necessary to maintain a writ of right, the legal constructive seisin conferred by the grant itself, will be sufficient for that purpose. That the ordinances of the convention adopted June 24th, 1776, and October 1777, by which settlements on the western waters were authorized, only gave to the settler a pre-emption or preference; and that it was not until the act of May 1779, that a mode was prescribed by which a settler could obtain a grant of the legal title; that until he obtained such grant, he had only an equity, and the legal title remained in the commonwealth ; and the possession which the settler had obtained, was under and not adverse to the commonwealth, and was not a wrongful possession, which is necessary to work a disseisin; (even if the commonwealth could be disseized';) and that in order to constitute a bar under the statute of limitations, to the prosecution of a writ of right, the tenant must shew that his possession was adverse to the claim of the demandants, or those under whom he derived title. In the present case, therefore, the possession of the tenant, by virtue of his certificate of settlement, previous to the grant to the ancestor of the demandants, cannot be connected with his possession subsequent to said grant, in order to constitute the bar created by the statute of limitations; 1st. Because such prior possession did not work a disseisin of the co'mmormealth; and 2d. Because it was not an adverse possession; and that consequently the tenant can only compute his possession, and the possession of those under whom he claims, for the purpose of availing himself of the bar created by the statute of limitations, from the date of the grant to the ancestor of the demandants. The court, therefore, refused the instructions asked for by the tenant; and to this opinion of the court, the tenant excepted. This is the tenant’s third bill of exceptions.</p> <p>The tenant farther moved the court to instruct the jury, that a possession by Josiah Davisson, under whom the tenant derived title, of a part of either one of the tracts of land granted to him, must be esteemed and taken as a possession of the entire tract, co-extensive with the boundaries described in the tract; and that such possession of one of said tracts, must be esteemed and taken as possession of the coterminous tract granted to him, (it appearing that both grants issued at the same time,) except so far as the said tracts, or either of them, or a part thereof, may have been in the actual adverse possession of the demandants, or other persons claiming title thereto; and notwithstanding it shall appear that the said tracts of land, or either of them, lay within the boundaries of the grant to the ancestor of the demandants. The court gave this instruction; and the demandants excepted. This is the demandants’ third bill of exceptions.</p> <p>The tenant farther moved the court to instruct the that if they believed from the evidence, that the tenant and those under whom he claimed, had actual possession of the land in controversy, holding the same a(jverse to the title of the demandants, at the time of the death of their ancestor, and for thirty years prior thereto, that it constituted a bar to the demandants’ right of recovery in this action. And the court being of opinion that if there was such an adverse possession in the tenant, and those under whom he derived title, as would have barred a recovery in a writ of right by the ancestor of the demandants, at the time of his death, that the tenant has a right to avail himself of such bar in the present action, although fifty years may not have elapsed since the adverse possession commenced, as against the demandants; gave the instruction as asked for; and the demandants excepted. This is the demandants’ fifth bill of exceptions.</p> <p>The jury found a verdict for the tenant; and the court gave judgment accordingly; and then the demandants applied for, and obtained an appeal to this court.</p>

<p>Forthcoming Bond — Judgment on — Reversal—Sheriffs Return.* — The slierid's failing to make a return on an execution is no ground for reversing a judgment obtained on a iorthcoming bond taken in pursuance thereof.</p>

This was an action of detinue for a negro, called Jack Robinson, alias'Taliver, instituted by the appellants, and determined in the District Court of Suffolk. The jury found a verdict for the plaintiff, if the law, upon the facts agreed to be stated, be for him, if not, then for the defendant.

<p>Marriage Settlement† — Detinue by Beneficiaries.- By a marriage settlement, certain slaves are conveyed in trust, for the use of the husband and wife for life, and for the life of the survivor; and after the deaths ol both, for the use of the children of the marriage; and if there be no child, a part of the said slaves for the use of the h eirs of the husband, or of such person as he shall appoint and direct; and another part for the use of the heirs of the wife, or to be disposed of as she shall appoint and direct. — The wife dies, in the lifetime of the husband, without any child; and the husband dies haying' all the slaves in his possession; no appointment having been made. The heirs of the husband shall not take those conveyed to the use of the heirs of the wife; but they shall go to her next of kin. — In such case, the trustee being dead, the heirs of the husband, or wife, may maintain an action of detinue for the slaves conveyed to their use respectively.</p> <p>Detinue‡ — Special Verdict — Failure to Show Title-Effect. — In an action of detinue for slaves, if the Jury find a special verdict; and, as to some of the slaves, omit to state a circumstance which is necessary to ascertain whether the plaintiff is entitled to them or not; the verdict is insufficient and a venire de novo ought to be awarded.</p>

THIS was an action of detinue brought by the appellant against the appellee in the District Court of Fredericksburg for the following slaves, to wit, Reuben, Mordicai, Lisee, Nan, Gabriel, Lawson, Ben, Milly, Jane, and Jerry.

This was an action of detinue, brought in the superior court of law for Pittsylvania county, by Notley W. Briscoe, George Briscoe, and William Ware, against William Clarke, for two slaves, named Stephen and Milly. Issue was joined on the plea of non detinet; and at the trial, the defendant filed two bills of exception.

Fenwick brought debt against William and Samuel Moore, in the Superior court of Rockbridge. The declaration claimed 2,3251. 3s. 4d, to be due on a bond executed April 4th 1795, by William and Samuel Moore.

This case had been here before; when this court reversed a judgment of the circuit court of Frederick for the appellee against the appellant, and directed a new trial. See Gilm. 202. It was a suit brought by the administrator of Fanny Kile against the administratrix of John Rowt, upon an instrument hearing date January 3. 1807, signed and sealed by John Rowt, and attested by Robert Kile, Richard Staige, and William Rowt. The material plea was non est factum.

Finch brought an action upon the case, in the District Court of Petersburg, against Thweat and Hinton as inspectors at Robert Bolling’s warehouse.

<p>This was an appeal from a decree of the High Court of Chancery, in a suit brought by the appellee for an account.</p>

In an action of ejectment, on behalf of David Hunter against Denny Fairfax, in the Winchester District Court, 219 *for 788 acres of land lying in the County of Shenandoah, the parties, by their counsel, on the 9th of September, 1793, agreed a case, in substance, as follows : 1.

This was an appeal from the chancery court of Fredericksburg. Samuel Harvey, surviving partner of Harvey and Armistead, filed his bill against William Thornton Alexanc^er’ an(^ ^10}7 his wife, John Taliaferro, John S. Taliaferro, son of the said John, and James G. Taliaferro.

This was a bill filed in the High Court of Chancery, by the appellee, as administrator of his wife, against ’he appellants, to recover 1000/. which (the bill states) Bannister had agreed to give as a marriage portion with his daughter the appellee’s late wife.

Tabitha Alderson brought trespass quare clausum fregit, against John and Josejph Faulkner, in the Superior court of Halifax.

The appellant instituted an action of debt In the District Court of Richmond against the appellees, (stiling herself, administra-trix of W. B. Brown) upon a bond taken to herself as administratrix. The declaration is in the debet et detinet — Plea, payment.

<p>The appellant instituted an action of debt In the District Court of Richmond against the appellees, (stiling herself, administra-trix of W. B. Brown) upon a bond taken to herself as administratrix. The declaration is in the debet et detinet — Plea, payment. The defendant Garland having given six months previous notice of offsets, offered as such at the trial, two bonds due from the intestate, and which had come to his hands by assignment since the institution of this suit- -also two receipts sig-ned by the plaintiff, the one for money, and the other for a bond due by the intestate, and assigned to the same defendant; all which offsets had been acquired since the institution of this suit. They also produced in evidence an advertisement of the plaintiff’s, offering for sale the property of the intestate at public auction, and agreeing to allow' a discount of live per cent, to such of the creditors of the estate, as chose to purchase at the sale. They also offered at the trial to prove a sufficiency of assets to pay the debts, and tendered the costs of suit. All these facts appeared in a bill of exceptions taken by the plaintiff to the opinion of the court, admitting the testimony — -verdict for the defendant and appeal.</p> <p>The defendant at common law could shew nothing in discharge of a bond but something •of an equal dignity with itself, such as a release, &c. offsets are permitted in -England by a statute, which is not in force here. In like manner, the defendant is permitted by a “statute in that country as well as by the law of this, to plead payment. But there is no law of this state which authorises offsets. If this i were a question in Westminster Hall, i1 would be decided against the appellees under the English law; for the debt to be offset must be in the same right as the debt demanded. Thus in an action by the as-signee of a bankrupt, a debt due from the bankrupt cannot beset off. Wils. Rep. 155. So where after the testators death the defendant received rents which became due before, he was not permitted to set off against the claim of the executor for those rents, a debt due to him from the testator. —-Shipman v. Thomas, Bspinass 274. The reason is, that where there are mutual debts, there must be mutual remedies; and unless there are, the doctrine of offsets cannot apply-</p> <p>So a man cannot set off a debt due in the right of his wife, against one due from himself. Bull. 179, 180 — 3 Atk. 691.</p> <p>Though the bond in question were actually given for property of the testator’s sold to him (which does not appear) yet it became a debt due to the executrix — she must sue in the debet et detinet, and is accountable for the amount of the property so sold, to the persons entitled to demand it. The remedies therefore are not mutual — The debts are not mutual — and consequently the offsets inadmissible. If they were, it might subject the appellant to a devastavit in cases of debts of superior dignity and an insufficiency of assets.</p> <p>The act of assembly 22 Geo. II, G. 27, $ 6, which jiermits the defendant to make all the discounts he can, is more comprehensive than the statute relating to offsets, and sufficiently so to embrace the present case. But I rely principally upon the advertisement, as imposing upon the appellant an obligation to receive the bonds in question in discharge of the debt for which the suit was instituted. He cited, 3 Wils. 396, 2 Bur. 821 — 1229.</p> <p>Marshall on 1he same side. — The first question in this cause is, whether the discount offered is proper, under the act of Assemblj’ — 2dly, if not, what operation the advertisement will have upon the case.</p> <p>1st, The words of the act are very extensive ; much more so than the statute of offsets. The adjudications in England therefore are not applicable, because the statute speaks of mutual debts which our law does not. In the present case, the bond being given for property of the testator sold, the money when received is to be administered as other assets, and may therefore be properly subjected to the discount insisted upon at the trial.</p> <p>“'MERGER, J. — -Ought not the defendant to have pleaded this offset? The plaintiff might then have replied, no assets. — That it was not given for property of the testator, or the like; in which case the issue would have been upon the proper point.</p> <p>Marshall. The act of Assembly does not require it to be pleaded, but declares that the discount if proved, shall be allowed.</p> <p>But 2dly, the advertisement strengihens the case very much, because it creates an obligation on the appellant to admit the discount, is a tacit admission of assets, and of course does away the danger of producing a devastavit.</p> <p>Duval on the same side, perhaps the ap ■ pellee might have been induced to lake the assignment of these bonds in consequence of the advertisement, and therefore the rejection of them as a discount would be a fraud upon him.</p> <p>If the defendant upon the plea of payment, can give in evidence offsets of this sort, it is impossible for the plaintiff to know how to meet the plea at the trial. — The bonds may be void, or paid off.</p> <p>In the construction of the act of Assembly, the question, what are the proper discounts is still left open for the court to decide upon, and no better, or more just rule can be adopted than that, which prevails in cases of offsets in England. By confining it to mutual debts, it prevents confusion at the trial, or the possibility of eventual injustice to any of the parties.</p> <p>The advertisement does not better the situation of the appellee, because neither of them were purchasing creditors; and to such only, are the benefits offered or intended. If the offset were in this case permitted, the appellant might be subjected to this inconvenience. A purchaser at the sale gives his bond, not claiming to be a creditor, for if he were, he would be entitled to a discount of five per cent, and ought not to have given a bond at all. The debt belonging to the administratrix and she being accountable for the amount to those intitled to distribution, she may have paid them, and afterwards upon bringing suit upon the bond, the defendants obtain assignments of debts due from the intestate to destroy the demand.</p> <p>As to the defendant’s offer to prove assets, it does not better the case, because it not being a point in issue, the plaintiff could not be prepared to meet such evidence.</p>

The appellees filed their bill in the High Court of Chancery, praying for a distribution of the personal estate of Sir Marma-duke Beckwith, and to set aside a deed made by Sir Marmaduke to the appellant for 14 slaves, upon a suggestion of fraud in the obtaining of it, and for a division of them amongst the representatives.

This ivas an appeal from a decree of the High Court of Chancery, in a suit commenced there by the appellee, to set aside a conveyance from Herbert Clay-born to Augustine Clayborn his father, and the testator of the appellant, as being fraudulent. The prayer of the bill is, that the appellee may be let in to have the effect of an execution issued against the estate of the said H. Clayborn.

<p>On the 2Sth of February 1818, articles of agreement were entered into between James M'Dowell Moffett of the one part and Dabney Cosby and William Lambert of the other part, whereby it was witnessed that Moffett had bargained and sold to Cosby and Lambert a tract of land in Augusta county. Possession of the land .was to be immediately delivered, and Moffett bound himself to convey the land to Cosby and Lambert on demand. In consideration of which, Cosby and Lambert bound themselves to pay to Moffett the sum of 5600 dollars in manner following, to wit: 4455 dollars as full consideration for certain building agreed to be done by Cosby and Lambert for Moffett; and the residue to be paid in six equal instalments, commencing on the first day of October 1820; the payment of the said instalments, and the performance of the said contract on the part of Cosby and Lambert, to be secured by a lien on the land sold.</p> <p>About the same time, to wit, in March 1818, articles were entered into between Cosby and Lambert, the former of whom was a bricklayer and the latter a carpenter, by which, after reciting the purchase of land from Moffett for 5600 dollars, for part of which they were to do work and for the residue whereof they had given their joint bonds, it was set forth, that Lambert was to find all his own materials, locks, nails, glass &c. and do his part, for 2055 dollars, and that Cosby was to do the brick work and plaistering, and find his own materials &c. for 2000 dollars, and that the painting, which was estimated at 400 dollars, was to be done at their joint expense.</p> <p>On the 12th of November 1819, a new agreement was made between Cosby and Lambert, whereby, after reciting the preceding contracts, and setting forth, that from unexpected misfortune in business, Lambert had become unable to comply with his portion of the agreement, it was agreed that Lambert should proceed forthwith to cover in the dwelling house mentioned in the contract, in the true spirit of the contract, and then be released from any further obligations imposed on him thereby; and that, for the work he had theretofore done agreeably to contract, materials furnished, and covering in the dwelling house, he Lambert should be allowed their value, and receive that amount in land, out of the tract before mentioned. Cosby agreed, on his part, to perform all the covenants of Lambert in the agreement aforesaid, except as before excepted, and to receive, as full compensation therefor, the residue of the land.</p> <p>On the 16th of November 1819, William Lambert made a deed of trust to Erasmus Stribling, conveying his interest in the land to indemnify Cosby and Abraham. Lambert in consequence of their having become bound, on the 9th of November 1819, as sureties for William Lambert in a bond to Silas H. Smith for 585 dollars 20 cents, payable one half on the 9th of November 1820, and the residue one year thereafter, with interest from the date of the bond. This deed was admitted to record in the office of Augusta county, on the 27th of February 1821.</p> <p>Before it was admitted to record, judgments had been obtained against Tuambert, and he had been compelled to take the oath of insolvency. At the time of his being discharged as an insolvent debtor, to wit, on the 27th of December 1820, Lambert made a deed to J. M’Nutt sheriff of Augusta county, conveying, besides a moiety of another tract of land in Augusta, his interest in the tract conveyed by Moffett. This deed was admitted to record a few days after its date.</p> <p>On the 26th of February 1821, a deed was made, purporting to be between James M’NuU sheriff of Augusta county, of the one part, and Henry J. Tapp of the other part, wherein it was set forth that John Churchman, a deputy for M’Nutt, had, on a court day, advertised the lands conveyed by Lambert to the sheriff, and had afterwards, pursuant to the advertisement, and to the act of assembly, proceeded to sell the same, and that Henry J. Tapp became the purchaser of Lambert’s interest in the second tract conveyed by the deed, at 50 cents, (the other tract, to wit, that first named in the deed, not being sold for want of bidders). Thereupon the deed witnessed that M’Nutt sheriff as aforesaid, by his said deputy, in consideration of the said sum of 50 cents, conveyed to Tapp the said Lambert’s interest in the said tract of land acquired by Cosby and Lambert from Moffett. The deed stated in the conclusion thereof, that M’Nutt sheriff as aforesaid, by Churchman his deputy, had thereunto set his hand and seal. And it was accordingly signed, “ James M’NuU S. A. C. by John Churchman deputy.”</p> <p>The purchase at the sheriff’s sale, though in the name of Tapp, was for Cosby.</p> <p>Some months after the sale by the sheriff, in a conversation between Cosby and another person, the latter remarked that he thought Lambert was badly treated at the sale; to which Cosby replied that the land was bought in with the intention that Lambert should have the benefit of it, so far as his work and materials would entitle him thereto. He said it was not intended to take any advantage of Lambert.</p> <p>In 1822, judgment was entered in the county court of Augusta against Cosby on the bond to Smith, wherein Cosby and Abraham Lambert were co-obligors with William Lambert. An execution having issued the 8th of April 1822, returnable to May court following, Cosby, on the 15th of May, addressed a letter to Abraham Lambert, urging him to contribute promptly to the satisa faction of the judgment, and concluding in these terms: “ William has sent word to me to know if I meant to keep his part of the land for the amount sold for. I have said, no, I did not. I repeat the same to you. I want no pitiful advantage of that kind, and I request you not to let me suffer.”</p> <p>For part of the bond to Smith, to wit, 100 dollars, Cosbij was principal debtor. For the residue thereof, he and Abraham Lambert were cosureties. The latter contributed, on the 5th of August 1822, on account of the debt, the sum of 229 dollars 39 cents.</p> <p>On the 20th of January 1823, Cosby addressed a letter to Lambert, commencing thus : “ I am endeavouring to prepare my Moffett accounts for a general settlement, and I wish you to say how long you consider me bound for the hire of your boys, whether from the time they quit Moffett’s work, or whether until they were free.” After some other remarks, he says, “ I shall have the painting done this spring, and endeavour to settle as shortly thereafter as possible.”</p> <p>Having paid off the creditors at whose suit he took the oath of insolvency, Lambert, in November 1833, exhibited a bill in the circuit court of Augusta against Cosby, wherein, after setting forth the contracts of February and March 1818 and of November 1819, he stated, that his affairs requiring him to remove to Shenandoah county, he found it inconvenient to cover in the dwelling house, and Cosby consented to relieve him from that part of his engagement, and employed a person to do that part of the work. That the work done and materials furnished by the complainant amounted to a considerable sum ; and he exhibits an account of the same. That the complainant had been under the necessity of taking the oath of insolvency, and his interest in the land had been sold by the sheriff. That the complainant had no notice of the sale, and was not present when it occurred. That he does not know whether it was conducted in the mode prescribed by law, and he requires evidence on the subject. That Cosby became the purchaser of the complainant’s interest for the paltry sum of 50 cents, though no one knew its real value better than himself. That since the sale, Cosby has disclaimed all intention of keeping said property from the complainant, but has never made him any compensation. That the complainant was for a considerable time prevented from seeking redress against Cosby in a court of justice, by his the complainant’s embarrassed circumstances, the distant residence of Cosby, and the hope, encouraged by his repeated declarations, that he would adjust the matter amicably. The prayer of the bill was, that the complainant’s account for his work, materials, and other advances about the buildings; might be stated and settled before a commissioner; that the last contract between him and Cosby might be specifically executed; that Cosby might be compelled to surrender and convey to him a due proportion of the land, if to be had, and if not, to pay in money what is due the complainant, with interest thereon; and for general relief.</p> <p>The cause coming on to be heard upon the bill taken for confessed, and exhibits, the court made an order referring the accounts between the parties to a commissioner.</p> <p>Cosby afterwards filed his answer, denying that he ever consented to release the plaintiff from the contract of the 12th of November 1819, and stating on the contrary, that the plaintiff, without his consent, violated it, and left him to have the building covered and the work completed in the best manner he could, •whereby he was subjected to great disappointment and loss. The answer controverted the correctness of the plaintiff’s account, and stated the conviction of the defendant that on a fair and full settlement the plaintiff wonld be largely his debtor. The lapse of time and loss of evi- , ,. , . . ... dence, the defendant feared, would render it impossible to make such a settlement; and he insisted upon the statute of limitations. The plaintiff, he contended, could not claim under the contract, but only on a quantum meruit, so much as his work &c. were worth ; and such a claim, the defendant insisted, was clearly barred. He further objected to the jurisdiction of equity, insisting that the plaintiff could only proceed at law. The answer did not admit that the plaintiff was prevented from sooner impeaching the sale by any of the causes mentioned in the bill, but required proof of the same. The defendant averred that the sale was fair ; alleged that the interest of Lambert sold for its full value ; and insisted that the sale was in every respect legal and valid, and that after such a lapse of time, it ought not to be disturbed. He stated, that he had long been under the impression that he was the purchaser at the sale; but it appeared by the records that Henry J. Tapp became the purchaser, and that the sheriff conveyed to him; and the heirs of Tapp, he said, should therefore be made parties. The defendant acknowledged that he had hitherto claimed and possessed the land, and stated that he was sure Tapp never intended to claim any interest in it. He supposed that Tapp, being a friend and near connexion of his, happening to be at the sale, bought the land to protect his the defendant’s interest. The defendant denied having disclaimed to hold under the purchase without settlement or remuneration. He supposed that he might have said, that if the complainant would settle fairly and pay the money due, he was willing the complainant should take a fair proportion of the land. But no such declaration, he urged, could give the complainant any right, since he declined acting upon it when a fair settlement was practicable.</p> <p>The commissioner made a report, stating a balance due the plaintiff of 425 dollars 35 cents, with interest from the 5th of August 1822, and that if the plaintiff should be considered entitled to interest on his claim anterior to the 5th of August 1822, then the balance on that day would be 548 dollars 59 cents, bearing interest from that time.</p> <p>It appeared by a certificate of the clerk of Augusta county court, that Coshy and wife, on the 5th of May 1824, conveyed to Samuel Todd 100 acres, part of the tract conveyed by Moffett.</p> <p>The cause came on to be heard the 26lh of November 1836 ; and there being no exception to the report of the commissioner, the court affirmed the same, declared that the plaintiff was entitled to recover agreeably to the second statement therein, and further declared that as the defendant had sold and conveyed the land, or part thereof, the said plaintiff had a right to receive compensation in money. Thereupon the court decreed that the defendant pay to the plaintiff the sum of 548 dollars 59 cents, with interest thereon from the 5th of August 1822 till paid, and the costs of suit; subject however to a deduction of 50 cents, the price at which the land was sold by the sheriff of Augusta county, with interest thereon from the 4th monday in January 1821, which sum of 50 cents was to be retained by the defendant without prejudice to any claim thereto on the part of the representatives of Tapp. And the court declared that the decree was without prejudice to any claim on the part of the plaintiff to subject the land in the hands of the purchaser or any other person, if payment could not be coerced from the defendant.</p> <p>On the petition of Cosby, an appeal was allowed.</p>

This was an appeal from a decree of the High Court of Chancery — The bill was brought by the appellees to recover a legacy of ^300, devised to the female plaintiff, by the will of Benjamin Harris her father, made in the year 1776, of which, ;£100 was to be paid in a year after the legatee should attain the age of 18 years, and the residue, so soon as the executors could raise it.

This was an appeal from a decree of the High Court of Chancery. Sometime in the year 1749, Lord Fairfax, by a public advertisement, invited settlers, to that part of the Northern Neck where the land in question lies, promising to make rights to such, as would settle there.

M’Rea and Company brought debt in the Superior court of law for Berkley county, against Nadenbousch and Offeral, on a note for SS00. One Beeson became appearance bail, and defended the suit. The writ was returnable to June rules, when the dec-claration was filed; and Beeson prayed an imparlance. July rules, rule to plead. August, the defendants pleaded ‘payment;’ to which plea, there was a general replication; and Beeson joined issue.

Bush, as relator, brought his action of debt in tho name of the justices of Botetourt county, against Charles Beale, on the official bond of the latter, as executor of Christian Charles Bong, deceased.

Lucy Richardson set forth in her bill, filed in the Chancery court of Richmond, that on the 5th July *1801, she obtained a decree in the county court of Nottoway, against John Patterson, administrator of one Anderson, for 501. with interest from February 1st J801; and for 221., with interest from 5th July 1801. That in 1812, she gave to Peter Bland, an order for the money, who had received it, and had never paid it over; he is a defendant to the bill.

The appellees filed their bill in the High Court of Chancery against John J, Jacobs, and wife, praying for a conveyance of a tract of land, to which they were entitled in right of a settlement, made before the year 1775, and which had been granted to the said Jacobs and wife, by patent dated in 1784, in virtue of a survey made upon a military warrant by David Rodgers, under whom Jacobs and wife claimed.

<p>Lucy Richardson set forth in her bill, filed in the Chancery court of Richmond, that on the 5th July *1801, she obtained a decree in the county court of Nottoway, against John Patterson, administrator of one Anderson, for 501. with interest from February 1st J801; and for 221., with interest from 5th July 1801. That in 1812, she gave to Peter Bland, an order for the money, who had received it, and had never paid it over; he is a defendant to the bill. Living at that time in the family of Charles D. George, who was a witness to the order to Bland; he [George] fraudulently obtained from her an assignment of the debt; promising her $150 for her interest; she executed the assignment, without understanding its import, [being wholly illiterate]. George assigned this paper to James Rice; both are made defendants, and required to answer.</p> <p>George admits in his answer, that he was to give but $150 for the claim; he says, he had paid about $50, inconsumable commodities, meal &c.</p> <p>Bland admits the allegations of the bill as to him; that he had received the money, and would have accounted, but for the conflict of the claims; and was at all times ready &c.</p> <p>Rice says, he was accidentally called by George, to witness the assignment to him by the plaintiff; that it was read to her; and she was satisfied with it; that George then proposed to sell it to him; and that he bought it for 801., for which he gave his bond.</p> <p>On general replications to the answers, without depositions, the Chancellor decreed, that Bland should pay over to the plaintiff the 501. with interest from 1st January 1806; and the 221., with interest from 5th July 1801; deducting a small sum due Bland by agreement. George and Rice appealed.</p> <p>cited Whitehorn v. Hines,(a) to shew, that a subsequent purchaser, was not affected by the fraud of a prior holder: and therefore Rice’s claim *was good, because he was not privy to George’s contract.</p> <p>relied on the gross inadequacy of price as a strong badge of' fraud, (b) That the appellee was moreover wholly illiterate; a negro, and living in the family of George, was liable to imposition,, and oppression.</p> <p>The assignee cannot have a better claim,, than he had, from whom he derives, (c)</p> <p>The Chancellor has made a mistake of five-years in the interest, to the appellee’s-prejudice.</p>

The appellee exhibited his bill against the appellants, in the superiour court of chancery of Clarksburg, in November 1824, setting forth, that a tract of 100,000 acres of land in .Randolph county was granted to general Daniel Morgan assignee of Joseph Tidball, by patent dated March 9th 1790. Morgan sold this land to Jesse Sims, received tlie purchase money, and gave him a bond binding himself to make a conveyance; but this bond had been lost or mislaid.

This was an action of debt brought by the appellee against the appellant as high sheriff, for levying an execution on the property of the plaintiff's tenant, without paying him an years rent, due at the time.

This was a suit for freedom in forma pauperis, by Sam. The following case was made by a demurrer to ^evidence in the county court of Amherst. Sam was born in the county of Augusta, about the year 1788, the slave of Mary Teas, a native of that county, then residing there. Mary Teas, removed to North-Carolina about,1790, where she resided and Sam with her, three years.

This was an action of assault and battery, and false imprisonment, brought by the appellees, in the District Court of Petersburg. Plea, that the plaintiffs are slaves — Replication, that they are free and not slaves, and issue thereupon. *The jury found a special verdict in the foliowing words viz. “We find, that the plaintiffs are lineally descended by the maternal line from Judith; that Judith was an Indian, or the descendant of an Indian.

These cases were argued together in the court of appeals ; and although the facts of the cases vary slightly, the question involved in each, is the same.

This case was brought up by a writ of supersedeas to a judgment of the District Courtheld at the S-cueet Springs. The plaintiffs in the court below (the now defendants in errour,) brought an action, as paupers, for the recovery of their freedom. There had been two verdicts in the cause; the first, which was found for the defendant, (the present plaintiff in errour,) was set aside, on the ground of surprize, and because the issue joined was considered immaterial.

This was a motion made by Jerman Baker [Treasurer], on behalf of the commonwealth, under the 11th section, *chap. 174, of the Revised Code; against John Preston and nine persons, his sureties, on a… Held: that a copy of a copy was inadmissible; strongly implying, that a copj' of an original was good evidence.

This was a suit in Equity, instituted in the County Court of Richmond^ by the present appellant. The bill charges, that there were various specie dealings between the intestate of the plaintiff, and the defendant; and that upon a settlement made in 1779, there being a balance found due from the defendant, he executed a bond for 54/. current money, the amount thereof.

This was an action of trespass, brought in the District Court of Prince Edward, by the appellant, against the appellee, for taking a saddle from his possession. Plea, not guilty.

<p>This was an action of assault and battery, brought by the defendant in error in the District Court of Charlottsville. There were two pleas put in—-1st. not guilty—and 2d, a justification» The defendant, at ’the trial, offered the testimony of a witness, against whom separate action was then depending at the suit of the plaintiff for an assault committed at the same time. Court refused to suffer the witness to be exam-med, considering him to be incompetent on account of his sued as a trespasser.</p> <p>The defendant below filed a bill of exceptions to the opinion of the Court, and a verdict and judgment being given against him, he obtained a supersedeas from this Court.</p>

Thomas Cralle, on the 13th day of July, 1798, presented a bill of injunction to the County Court of Lunenburg, against Charles Betts; stating that he had employed the defendant as his attorney in fact 239 to survey and ^secure for him a tract of 3,000 acres of land which he had purchased of Christopher M’Conico; being part of a larger tract, which, as the complainant had been informed, had been located and surveyed for the said M’Conico; that the defendant undertook…

Ejectment in the District Court of North-umberland, brought by the appellee. The parties agreed a case, in substance as follows, viz. That William Keene the 1st, being seized &c. by his will, made in 1681, devised 240 acres of land, (part of the tract in Question) to his son William and his heirs for ever, and if he died without issue, remainder over.

This was a suit In Equity, instituted by the appellant in the County Court of Lancaster. The object of the bill is to recover a compensation for certain lands devised to the plaintiff by his father, William Eustace, and afterwards recovered from him at law by some person having a better title.

ON an appeal from a decree of the Superior Court of Chancery for the Richmond District, pronounced by the late Judge of that Court. This case turned upon the construction of the will and codicils thereto annexed of William Carr the elder, which were made in the year 1790. So far as the present question is influenced by them, they may be resolved into the following parts: 1.

On the first of June 1829, Rebecca Bowen administratrix and William Gillespie administrator of Rees Bowen deceased, and John Croclcett, filed a bill in the superior court of chancery holden at Wythe courthouse, against William Campbell, to foreclose a mortgage theretofore (to wit, on the 4th of November 1823) executed by Campbell to Rees Bowen and John Croclcett, to secure debts arising out of contracts made in 1821, 1822 and 1823. At May term 1830, Campbell filed his answer.

The case was this: Horde was the creditor of W. T. Alexander by bond, and brought a suit at law, and obtained a judgment. An execution was issued against the body of the said Alexander, and he was discharged, upon taking the oath of insolvency.

This was an action upon the case for goods sold and delivered, brought by the plaintiffs in the General Court, from whence it was sent to the District Court of Northumberland.

The appellees filed their bill in the High Court of Chancery against the appellant, the executor of their father and their guardian, for an account.

In an action of trespass on the case by Nathaniel Frisbie against Almarine Marshall, in the County Court of Wythe, a commission was granted the defendant on the: ISth of June, 1796, to take the deposition of Philip Dick, of the city of Philadelphia;; “and Benjamin Jones, William Kenner, and any three aldermen of the said city, to' take the same by consent of the parties;” and the same was granted the plaintiff.

This was an appeal from the High Court oí Chancery —Keeling■ the plaintiff in that Court, borrowed from MJIae m Aprils 1778, a sum of pauer money amounting to 422/. i8s. not to be repaid in less than twelve months thereafter, which money (the answer states) belonged to the ward of MKiac* being so much received by him in discharge of a specie debt due to the ward.

This was an appeal from the chancery court of Williamsburg, where Knibb Hied his bill of complaint against Tyler, executor of Dixon. The case stated in the bill was this: Knibb being reduced in his circumstances, and much pressed by his creditors, and most of his personal property taken under execution, executed a bill of sale purporting to be an absolute deed to Dixon, for a negro woman and her daughter.

This was an appeal from a decree of the High Court of Chancery. The appellant filed his bill in that Court, stating, that his testator was indebted to the testator of the appellee by bond, upon which a judgment had been obtained in the year 1766, during the hves pities.

This was an appeal from the superior court of chancery, holden at Wythe court-house. Joseph Trigg and Elizabeth his wife, filed a bill against Lilbourn L. Henderson and others, representatives of WiHiam King deceased, claiming a legacy of g 10,000, which had been left to the female plaintiff by his will, who, before her marriage, was Elizabeth Findlay.

This was an action of debt upon a bond, instituted in the District Court of Northumberland, by the appellee. The declaration was in common form, with a profert, &c. Upon oyer, the bond is set forth at large, and the defendant pleads payment.

<p>This was an action upon the case, brought by the appellee against the appellant, in the District Court of jFrederickslmrg. The declaration contains two count'. The first states; that a certain discourse was had between the plaintiff and the defendant, concerning the renting of a piece of ground belonging to the plaintiff, ^01’ ^Ie use °f the Jockey Club, whereupon, the plaintiff, {calledin the said agreement Colonel Willis) agreed to rent the said ground to the defendant, for the use of the Jockey Club, for the term of seven years, and the defendant agreed to pay for the same, the sum of 30/., a year, the field to be enclosed by the plaintiff with a good fence, and the defendant in behalf of the Jockey Club, agreed to have the field restored to the plaintiff at the end of the term, with the fence in as good order as when it was received, and the defendant, in consideration of the plaintiffs promise to do every thing, See., on his part agreed to be done, promised to do every thing on his part to be performed : avers performance on the part of the plaintiff, and lays the breach, in the non-payment of two years rent, and in not restoring the field enclosed as the defendant received it. The second count, is an indebitatus assumpsit for the use and occupation of a race field, and an assumpsit of the defendant to pay, See,—upon the general issue, the jury found a verdict for the plaintiff. At the trial, the plaintiff' produced in evidence an agreement in writing, corresponding with that stated in the declaration, except that the defendant is stiled in the agreement, Treasurer of the Jockey Club, which description is omitted in the declaration. The Court, having over-ruled the motion of the defendant that this agreement should not go in evidence to the jury,—an exception was taken to the opinion, and an appeal prayed.</p>

This was an appeal from a decree of the High Court of Chancery. The case was as follows: The appellants instituted a suit in the General Court against Benjamin and William Piper, the latter of whom being arrested by the appellee (the sheriff) was discharged upon the parol agreement of Jett to become bail for his appearance.

This was an action of ejectment 'brought in the county court of Southampton, by Samuel Blunt and others, trustees of the Nottoway Indians, against Daniel Butts, for a messuage and fifty-nine acres and a half of land. The declaration laid a demise from Aaron Burr to the said trustees. An issue was made up on the plea of not guilty. The jury found a verdict for the plaintiffs, and the court rendered judgment accordingly.

John Ross having an estate of inheritance in a tract of land in the county of Harrison, and dying intestate, the same descended to his children, ten in number, of whom one was Patsy. She, after the death of her father, married Joseph Janes, and there were children of the marriage.

In a suit brought in the superiour court of chancery of Clarksburg, in June 1825, by the appellee, Heiskell, against Thompson, Willson, and… Held: that Thompson had acquired a right to demand of Willson a specific execution of the contract for the sale of the lot, before the service of Heiskell’s m. sa.; that Heiskell’s judgment having been obtained, and his ca. sa. having been served, before the judgment rendered for the commonwealth, he acquired a lien on the tenement in…

This was an action of debt, brought in the District Court of Williamsburg by the appellant, upon a bond given to him for and on account of Messrs. Glen and Peter, merchants in Glasgow. The declaration states the debt as due to the plaintiff without mentioning for whose use.

This was an application for leave to raise the dam of a water grist-mill on Flat-rock creek, in the County of Bunenburg.

HE was indicted in the Williamsburg District Court, September term 1798, before Prentis and Tucker, judges of the general court, for the murder of Richard Whitaker.

This was an appeal from a judgment of the District Court of Charlottesville, affirming the judgment of the County Court of Charlotte, upon a bond given for the forthcoming of property taken under execution.

This was an action of debt, brought by the appellee in the County Court, upon a bond given by the testator of the appellant, with condition, that the said John Hawkins would faithfully collect,fon commission, certain debts due to the appellee by bonds, (as by list annexed,) and would pay the amount so collected, and return an account of his collection, and also surrender up all bonds not fully paid, when required, (except such as might be lodged with clerks, or with lawyers,…

This was an appeal from a judgment of the District Court of Charlottesville in an action upon the case, brought by the appel-lee. The declaration stated : that John Carr deceased, by his will, directed his executors, (of whom the defendant was one) to sell a tract of land the property of the testator; that the plaintiff was employed by the executors, to cry this tract of land at public auction, when the same was purchased by a certain John Moore who was the highest bidder.

The appellee brought an action of detinue to recover a number of slaves. Upon the pleas of non detinet, and the act of limitations, the jury found a special verdict as follows.

<p>This was an action upon the case, upon an indebitatus assumpsit, and quantum meruit, brought in the District Court of Dumfries, by the appellants, owners and masters of the ship General Washington, for freight and primage. Upon the plea of non assumpsit, the jury found a special verdict, in substance, as follow's : That on the 31st August, 1780, the defendant shipped at Amsterdam, on board of the General Washington, a letter of marque, bound for Alexandria, in Virginia, and owned by the plaintiffs, two parcela of goods, and paid the freight and primage on the small parcel before the ship sailed.</p> <p>That the captain signed two bills of lading, binding himself to deliver the goods to the defendant, or to his assigns, at Alexandria, the danger of the seas only excepted, the defendant paying 121 per cent, freight upon the nett proceeds, upon their delivery at Alexandria, and the captain’s primage, at the rate of five per cent.</p> <p>That the ship was a merchantman employed in transporting goods for hire, provided with a letter of marque, and that, by the ships articles the captain was not to cruise or sail out of his way after the enemy, for the purpose of making prizes, or in pursuit of an enemy.</p> <p>That the captain, on his voyage, did change his course two or three points, and gave chase to a ship and brigantine belonging to the enemy, for three or four hours. Thattheshipwassupposedtomounttwelve or fourteen nine-pound carronade guns, and the brig eight or ten four pounders; that the General Jfash■¿ngton mounted two nine-pounders and sixtee . double fortified six-pounders.</p> <p>That the General. If ashington, outsailed the ship and brig ; the two latter, after the action began, acting opon the defensive and offensive. That the attack was begun by the captain of the General Washington, who, after a long engagement had nearly made pr ¿es of the enemy, and would probably have done so, sf he had not been too much disabled to pursue.</p> <p>That the captain was then obliged to stop six or eight days to refit, and altered his course to Dartmouth, in New England, a good harbour for ships of the burthen of the General Washington. That the disabled situation of the ship was produced by the action, and rendered it prudent in the captain to put into this port.</p> <p>That the goods were all landed and stored at Dartmouth, and that it was necessary to unload, in order to refit, which being accomplished, the ship was fitted for a privateer, and sailed in about four months after her first arrival, and was taken.</p> <p>That the defendant wrote to Colonel Henly, of Boston, a letter, dated the 22d of November, 1780, informing him that he had goods on board this ship which were intended for his own use, and not for sale, and requesting him, in case the ship should not be directed to Virginia, or the managers should not bring part of the goods hither, to have all his goods stored, :md forwarded by the first good vessel to Potoraack, or, if none offered, then to send them to Philadelphia or Baltimore; if the managers sent any part of the cargo to Virginia, then his goods were to come by that conveyance.</p> <p>That, in consequence of this letter, the agent for the owners delivered the defendant’s goods to Colonel Henly / that they were imported for the defendant’s own use, and not for sale; that from Dartmouth there was no opportunity to ship them to Virginia: that they were removed from thence to Boston, from whence they were sent to Rappahanock river, in Virginia, and from thence, by a circuitous land and water carriage, to the defendant.</p> <p>That, as soon as the arrival of the ship at Dartmouth was known, the plaintiffs sent on an agent to fit her out as a privateer, and to sell their own goods, which being made known to the defendants, produced the above letter.</p> <p>That it was frequently practised by merchants during the late war, to receive and sell their goods, and to pay freight for. them, though landed at other ports than the port of delivery.</p> <p>If, upon the whole, the plaintiffs be entitled to full freight, they find for them 96k 3s. 4id.—if to freight pro rata, then they find 201.—if the law be for the defendant, then they find for him.</p> <p>Upon this verdict, the District Court gave judgment for the defendant, from which the plaintiffs appealed.</p>

In an action in the circuit court of Wood county, by William Brown against Bushrod W. Creel, the declaration contained two counts, of which one was in case for a tort, and the other in assumpsit. The defendant demurred generally to the declaration, in which demurrer the plaintiff joined; and issues in fact were also joined, upon the plea of not guilty to one count, and non assumpsit to the other.

This was an appeal from a decree of the High Court of Chancery. The case was this ; John Sher mer, by his will, devised to his wife the use and profits of his whole estate, both real and personal, during her natural life, and after that whs ended, then the whole of his estate, exclusive of that already given to his wife, to be equally divided between whoever his wife should think proper to make her heir or heirs, and his brother, Richard Shermer.

John S. Wilson and Bernard Peyton, merchants and partners trading under the firm and style of John S. Wilson Sf Co. brought an action of assumpsit in the circuit court of Giles against French C. Smith, Augustus A. Chapman and Andrew Beirne, as merchants and partners trading under the firm and style of French C. Smith fy Co. for goods, wares and merchandize alleged to have been sold by the plaintiffs to the defendants.

Lucas brought an action of trespass on the case, in the superior court of Mecklenburg county, against Jones, for a fraud in selling him an unsound negro. At the trial, the plaintiff offered in evidence, the deposition of Amy B. Jones, taken under a commission. The defendant moved the court to exclude from the jury, certain answers contained in the deposition, to questions which were leading ones.

John Micou, as agent for, and suing for the benefit of, Judith Matthews, brought a suit in Henrico superior court, against Daniel and Philip Triplett, on a bond executed by them in the penalty of g 360, and conditioned to pay half that sum, and to return two negro men, which had been hired, well-clothed.

The principal questions involved in this case were, fitst, what acts amount to a legal levying of a writ of fieri facias; and, secondly, what is the effect of the plaintiff’s directing the Sheriff to postpone the sale of property taken in execution, and suffer it to remain in possession of the defendants, until a day subsequent to the return day; as against securities; such arrangement having taken place by an agreement between the principal debtor and the plaintiff, without…

<p>This was an action of detinue for a negro, called Jack Robinson, alias Taliver, instituted by the appellants, and determined in the District Coui't of Suffolk. The jury found a verdict for the plaintiff, if the law, upon the facts agreed to be stated, be for him, if not, then for the defendant. Before these facts were agreed, Thomas Pierce the defendant died, and a scire facias issued against the appellee, his administrator, to shew cause, why the said facts should, not be agreed, and the matter of law thereupon argued. The appellee appeared, and the parties agreed the following case.</p> <p>That on the clay of July, 1779, the Bishop, an enemy’s vessel, was taken on the high seas by the General Washington, an American vessel, belonging to citizens of the ^ United States. That the slave in the declaration mentioned, was on board the Bishop at the time of her capture, and was then known on board by the name of Jack Robinson. That the vessel and cargo, together with the slave, was brought into Virginia, and condemned as lawful prize, and purchased under the sentence of the Court, by the plaintiffs. That the slave in question, was once the property of the testator of the defendant, known by the name of Taliver, and so continued, until the year 1777, when he ran off from his master, and got on board a British vessel. That the slave, Jack Robinson, was taken from the possession of the plaintiffs in September 1783, by the defendant, in pursuance of a warrant, granted according to an Act of the General Assembly, passed in 1782,* entitled, “ An Act for the recovery of slaves, horses, and other property, lost during the war,’’ and that he still detains him.</p> <p>If the Court shall be of opinion, that by the sale of the slave under the sentence aforesaid, the defendant lost his property therein, then judgment to be entered for the plaintiffs, otherwise for the defendant.</p> <p>The District Court gave judgment for the defendant, from which the plaintiffs appealed.</p>

THE prisoner was indicted in the Superior Court of law for Henrico county, in April 1812, for the felonious stealing, taking and carrying away from the treasury of the commonwealth, and from the custody of John Preston the treasurer, a large sum of money, to wit, seventeen thousand dollars in bank notes, and seventeen silver crowns of the value of eighteen dollars seventy cents, of the current coin of this commonwealth.

This was an action of assault anti battery brought in the county court of Accomack, by George Babe against Charles Bagwell. The declaration is in the usual form.

This was an appeal from a judgment of the District Court of Charlottesville, overruling a motion made by the appellants, upon a bond given by the appellee, upon the service of *an execution, conditioned for the delivery of 1000 bushels of wheat, at the day, and at the time of sale appointed by the sheriff.

<p>This was an appeal from a judgment of the District Court of Accomack, reversing a judgment of the County Court. The appellant brought an action of debt against the appellee, upon a bond executed by the testator of the appellee. The defendant pleaded payment, without craving oyer of the bond, and leave was given to offer special matter in evidence.</p> <p>The bond produced in evidence at the trial, and which is set out in the record, has the signature and seal of a co-obligor, and is joint. The jury found that the defendant owed the debt, and judgment was, thereupon, entered for the plaintiff. Upon an appeal to the District Court, this judgment was reversed, because there appeared to be a joint obligor, who survived the defendant’s testator, against whom the charge survived.</p>

This was an appeal from a decree of the High Court of Chancery, upon the following case. A suit was instituted by Webber and wife, in the former General Court, on the Chancery side, against the father of the appellant, and of Mrs. Webber, stating, that the father, had by a deed executed in 1754, conveyed to his said daughter, whilst single, several tracts of land, together with 16 slaves, and all the furniture and stocks on those plantations.

These were two writs of scire facias issued from the superior court of law of James City county, in the name of the administrator of George Lewis against George Lang, to revive two judgments obtained by Z. Litchfield and George Lewis against the said Lang.

Finch brought an action upon the case, in the District Court of Petersburg, against Thweat and Hinton, as inspectors of Robert Bolling’s warehouse.

Isaac Heiskell was appointed by the chancellor marshal of the court of chancery of Clarksburg, May 22. 1817; and with the appellants, Coplin and others, his sureties, executed an official bond, on the same day, conditioned according to law, for the payment of all moneys which he might receive by virtue of his office, and for the faithful discharge of all the other duties thereof.

This was an action on the case brought by the appellants against the appellee in the County Court. The declaration contained two counts: the 1st, a special one, stating, that the plaintiff's testator was authorised by the defendant’s father to lease -out certain lands of which he was seized in tail.

This was an ejectment brought in the District Court of Northumberland by the appellant, in which the jury found a special verdict, to the effect following, viz: That in 1666 the governor of Virginia, with the advice and consent of the counsel of state, granted the land in question to Thomas Freshwater, who afterwards assigned the patent to Robert Sisson, *who in 1698 devised the land to his grandson George Sisson in fee tail.

A writ of fieri fiadas was issued from the circuit superior court of law and chancery for the county of King William, in favour of Joseph T. Tompkins, to be levied • of the goods and chattels of Edward Pollard. This execution came into the hands of one of the deputies of the appellant, who was high sheriff of the county, and was levied on a slave in the possession of Pollard.

<p>An administrator having advertised a sale of the property of ]üs intestate, offering to purchasing creditors, a discount of five per cent. The defendant, (who was not a creditor,) purchased at the sale, and gave his bond for the amount.— Upon the pit» of payment to an action on this bond, the defendant ought not to be permitted to off-set bonds, due by the intestate in his life time, and which were assigned to the defendant since the institution of the suit, although he had given six months previous notice of the off-set, and also offered, at the trial, to prove a sufficiency of assets to pay the debts, and tendered the costs of the suit. The advertisement was confined to creditors who should purchase, which the defendant was not.</p>

In an action of debt, instituted by Thomas Bradley against James Welch, in the District Court of Fredericksburg, the writ issued December 12th, 1799, with an endorsement thereon “that bail was required.” The Serjeant of the town returned it “Executed, and Thomas R. Rootes, appearance bail.” At Rules in the Clerk’s office, May 16th, 1800, declaration was filed in the usual form, on a promissory note; and the defendant at the same time “by his attorney offered a plea, on oath,…

<p>An answer in Chancery is not evidence in favor of the defendant, as to affirmative facts, in opposition to the plain- ® demand*</p> <p>Upon a charge of fraud in obtaining a deed or will, or incapacity in the testator, the evidence of the attesting witnesses as to capacity at the time of executing the instrument, is chiefly to be regarded.</p> <p>Where a child is advanced with money or negroes, the donee is not bound to bring into hotchpot, the interest of the one, or the increase of the other.</p>

This was an appeal from a decree of the High Court of Chancery, reversing a decree of the County Court in favor of the appellants, the children of Thomas Applebury, in the suit, who were plaintiffs. The bill states a marriage agreement between Thomas Applebury, father of the plaintiffs, and James Anthony, their grandfather, by which the grandfather promised to give to the said Applebury, a slave named Lucy, in marriage with his daughter, the mother of the plaintiffs.

Ejectment for a small parcel of land, brought by Green against Vaughan, in the circuit court of Halifax. Vaughan filed two bills of exceptions to opinions of the court given at the trial. There was a verdict for Green. Vaughan moved for a new trial: the court overruled the motion, and he excepted to this opinion also. Judgment was then given upon the verdict; and Vaughan appealed to this court. 1.

By deed bearing date the 5th of January 1816, be-£Ween William Poston and Charles Tate of the one part and Jacob Blessing of the other part, it was recited that Poston and Tate, by virtue of a decree of the superior court of chancery holden at Staunton in July 1808, in a case therein depending between Jacob Blessing plaintiff and Arthur Campbell defendant, had sold to Blessing “ a certain tract or parcel of land with the appurtenances, lying in Washington county on the…

May brought an action of trespass vi et armis, in the Petersburg District Court, against the appellants, for breaking and entering his close, and beating several of his slaves in the declaration named, “so that he was deprived of their service for a long time; and throwing down his enclosures ’round his field, whereby his wheat then and there growing was trodden down and injured by a great number of cattle and horses belonging to divers people; and for other wrongs,…

This was an action of ejectment brought in the superior court of Northampton, by William Kendall, and Sarah C. B. Rogers, for one messuage, one garden, one orchard, and three hundred acres of wood land. The declaration was served on Oldham and Cobb, tenants in possession ; and, afterwards, William Littleton Eyre, an infant, by John Eyre, (who was appointed his guardian, ad litem,) was admitted defendant to this suit.

This was an appeal from a decree of the High Court of Chancery—The bill was brought by the appellees to recover a legacy of 300/., devised to the female plaintiff, by the will of Benjamin Harris her father, made in the year 1776, of which 100/. was to be paid in a year after the legatee should attain the age of eighteen years, and the residue, so soon as the executors could raise it.

This is the sequel of the case of Clarke v. Curtis, reported in 11 Leigh 559.

This was an appeal from the High Court of Chancery, dismissing the bill of the appellant. The case was as follows. — Mercer being in possession of a tract of land, to a part of which Hansborough was entitled as heir to his mother, (and which had been sold to the father of Mercer, by the father of Hansborough, without the privy examination of the mother) proposed selling it to Smallwood, who hearing of the title of Hansborough, objected thereto.

This was an appeal from a decree of the High Cout of Chancery. Sometime in the year 1749, Lord Fairfax, by a public advertisement, invited settlers to that part of the Northern Neck where the land in question lies, promising to make rights to such as would settle there.

<p>1. Equity Jurisdiction — Caveat.*—In cases in which the regular remedy is hy caveat, a Court of Equity may entertain jurisdiction, under circumstances which render its interposition just and proper, hut such circumstances must he made to appear to the satisfaction of the Court.</p> <p>2. Real Estate — Legal Title. — A legal title to land ought not to be disturbed in favour of a party not having a superior right in equity to the identical land in question.</p> <p>.3. Same — Entry — Certainty.†— QuEore, whether an entry for a certain number of acres “on the waters of Glade Greek, joining the lines of J. H.’s land, and the locator’s own land on W.’s run,” be sufficiently certain ?</p>

In June 1834, Charles James Faulkner, as administrator de bonis non of Peter Moore deceased, petitioned the superior court of law and chancery for Henrico county for an appeal from the decision of the auditor of public accounts, rejecting a claim for services rendered by his intestate in his lifetime, as an officer in the war of the revolution.

This was an appeal from a decree of the High , Court of Chancery, dismissing the bill of the complainants, who are now appellants. The case was as follows : Beverley, during his infancy, lost a considerable quantity of tobacco at unlawful gaming with the defendant Smith, who, for a valuable consideration, gave to Stubblefield an order upon Beverley for 25,000 pounds of tobacco. Beverley accepted the order, and afterwards gave his bond to Stubblefield for the amount.

William Long, by deed dated September 18. 183 9, and duly recorded in the county court of Amherst, mortgaged to Thomas Crews, and William, Betsey and Nancy Brydie, two tracts of land in Amherst, about forty slaves, sundry household furniture, and stocks of horses, cattle, sheep and hogs, to secure payment of a debt of 8,320 dollars due by him to Crews, and a debt of 10,081 dollars which he owed to the Brydies.

This was an action of debt, brought by the appellee against the appellant, as High Sheriff, for levying an execution on the property of the plaintiff’s tenant, without paying him a year’s rent, due at the time.

Hugh Donaghe brought a suit in the Staunton chancery court, against Joseph and Cumberland D. Williams, to recover the amount of a note, executed by the said Joseph Williams, to the said Donaghe, for $ 2,169 58 cts.

This was an appeal from a decree of the High Court of Chancery, and the question depended upon a clause in the will of William Aylett the father of the appellee, wherein he devised to the appellee and his heirs, “the plantation on which he then lived, and all his lands in the county of King William, also his land in Drummond’s neck in James City county.’’ The testator at the time of making his will, and at his decease, was seised of an estate of inheritance, in a tract of…

<p>This was an action of assault and battery, and false imprisonment, brought by the appellees in the District Court of Petersburg. Plea, that the plaintifis are slaves—Replication, that they are free, and not slaves, and issue thereupon.</p> <p>The jury found a special verdict in the following" words, viz : “We find that the plaintiffs are lineally descended by the maternal line from Judith; that Judith was an Indian, or the descendant of an Indian. That she was brought to this State by a certain Francis Coleman, some time after the year 1705, and was held as a slave to the day of her death. If the law be for the plaintiffs, we find,” &c.</p> <p>The District Court gave judgment upon the special verdict for the plaintiffs. From which the defendant appealed.</p>

John Hoomes the elder died in 1805. By his will, which is dated in 1804, he devised and bequeathed to each of his sons, John, William, Richard, and Armstead, to his daughter Sophia, and grandson John Waller Hoomes, real estate and slaves, giving to each of them, in express terms, an estate in fee simple in the property devised to them. The will then proceeds: “ Item.

This was an action of assumpsit brought by Putney against the appellants in the District Court of Williamsburg. The defendant pleaded the act of limitations, upon which, issue was taken.

The case was this ¡ — Eight persons who were the defendants in error, sued out a writ in the County Court against Eeftwitch and wife, in case; damage ^300. No declaration was filed, but the defendants below pleaded that they did not assume; on which the parties were at issue. Afterwards, by a rule of court, they submitted all matters in difference between *them to arbitrators, and agreed, that their award, should be made the judgments of the court.

<p>Action of Covenant — Declaration—Sufficiency.—In an action by the heir for breach of covenants contained in a conveyance of lands to the ancestor, if the declaration avers the entry, seisin, and death of the ancestor, ''and that the lands, covenants, and writings aforesaid have descended on the plaintiff,” without setting forth the manner in which he derived his title, it is good after a verdict.</p> <p>Same — Defect in Plea — Statute of Jeofails. — In an action against the heir on a covenant entered into by the ancestor, if a breach is assigned to have been committed both by the ancestor and the defendant; the defendant pleads that “he has not broken the covenant;” without saying any thing as to the breach by the ancestor; and the jury finds for the plaintiff that “the defendant has broken the covenant;” judgment ought not to be arrested; the defect being cured by the act of j eofails.</p> <p>Same — When Unnecessary for Jury to Find Assets.— Where the declaration alleges that the heir has assets by descent; if he fails to plead that he has no assets, or does not set forth the assets in particular, it is not necessary for the Jury to find assets.</p>

<p>Upon an appeal from the Superior Court of chancery for the Staunton District, in a suit on behalf of the children of William Madison, deceased, (by Elizabeth Madison, their mother and next friend,) against Andrew Lewis, to recover a tract of land in the County of Botetourt, known by the name of Voss’s, which had been devised by John Madison, father to Rowland Madison, brother of William, and by the said Rowland sold to Lewis, but, the plaintiffs contended, should have been conveyed to them, in consequence of an agreement, dated the 10th of October, 1780, between the said Rowland and William.</p> <p>By that agreement, under their hands and seals, (being in the life-time of John Madison, their father,) reciting, “that Rowland having disposed of a tract of land in Ken-, tucky containing one thousand acres, the property of William, for which he was to give his land in Botetourt in exchange, but, since finding it would be a disadvantage to him to comply with the bargain,” William agreed to “cancel the same, in case Rowland would make him a title to the same quantity of land above mentioned : only provided the said land was obtained by a military warrant agreeable to his Majesty’s proclamation, and clear of any disputes whatever: but, in case Rowland should not do this, he agrees that the first bargain shall be binding on him ; that, when he comes to the possession of his land willed to him, that he will make William a title to the land, first having both tracts valued; and whatever should be judged to be the difference each party agrees to give or take : and to the true performance of that agreement, each bound himself to the other, in the penalty of two thousand pounds specie.”</p> <p>*IXpon this contract, and the evidence in the cause, the chief points in controversy were whether, by Rowland’s failure to make William a title to the land in Kentucky, a liei? attached, in favour of the latter, upon the particular tract called Voss’s ; and, if so, whether Eewis, the purchaser from Rowland, was bound by such lien. All the circumstances are so fully set forth in the ensuing opinions of the Judges of this Court, that a farther statement by the Reporter seems unnecessary.</p> <p>November 29, 1804, the Chancellor appointed Commissioners to ascertain and report the respective values of the said one thousand acres of land in Kentucky, sold by Rowland Madison to John Gordon, and of the land devised to him by his father, on the day of , 1784, when he took possession, or was entitled; also to report an account of the rents and profits of the devised lands, and of the permanent improvements made thereon since the said Rowland took possession and decreed that, “upon the plaintiff’s paying the defendant whatever sum the value of the devised land and permanent improvements thereon should exceed the value of the one thousand acres, sold by Rowland as aforesaid, and the rents and profits of the devised land, <if there should be any excess,) then the defendant should convey to the plaintiffs the land in controversy, with special warranty against himself, his heirs, and all persons claiming under him; but, should the value of the devised land and the permanent improvements thereon, as aforesaid, fall short of the value of the one thousand acres aforesaid, and the rents and profits of the devised land, then the defendants should moreover pay and satisfy to the plaintiffs the deficiency, so far as that deficiency may be occasioned by the rents and profits aforesaid, and no farther.” From which decree the defendant appealed.</p> <p>1. That the contract between William and Rowland, having been made in their father’s life-time, and attempt-303 ing to dispose *of a contingent interest expected to be derived from him at his death, was contra bonos mores, and not to be countenanced in a Court of Equity ; in support of which point, Justinian’s Code, b. 2, tit. 3, s. 30, and 1 Brown’s Civil and Admiralty Eaw, p. 11, were cited.(a) Such is the rule according to the civil law : but at common law, also, every contract inconsistent with good morals is void, (b) The case of Nelson v. Nelson (c) does not contravene this position ; for, in that case, the doctrine was not settled, hut mentioned only incidentally ; so that what fell from the Court was merely an obiter dictum.</p> <p>the case of Nelson v. Nelson was relied upon as express authority. The agreement was fair and liberal on the part of William ; and Rowland having unlawfully sold and converted to his own use a tract of land belonging to his brother, his desire to make amends for that injury was a sufficient consideration on his part. The contract, therefore, was lawful and praiseworthy ; and, being under seal, an action of covenant could have been maintained upon it; (d) since there was nothing in it malum in se. There is a large class of bonds in England, called post-obit bonds, which are always considered good where no undue advantage has been taken ; though, in cases of injustice, or hardship, equity will relieve, (e)</p> <p>2. The counsel for the appellant farther urged, that this contract, relating, not to any immediate title, but a remote possibility without present interest, was void. It is, indeed, laid down in the books that a possibility may be assigned, released, or mortgaged : but there must be an inception of right, (f) And even that cannot be transferred to a stranger, (g)</p> <p>On the other side, it was objected, that these authorities all related to conveyances, and not to covenants to convey. 306 The true doctrine is, that covenants to convey possibilities are good, though conveyances are not.(h)</p> <p>3. The contract, even if binding between the parties, operated no lien upon the land ; since it did not apply to the particular tract called Voss’s, indeed, according to the evidence, the name Voss’s was applicable to the whole of a larger tract, of which this was the upper part. At the time of the contract, the testator was living on the upper part, and William his son on the lower, which, however, was then intended by the testator for Rowland. The lower part, then, was in contemplation, and not the upper, which the testator (having changed his mind) afterwards devised to him. Suppose the contract had specifically mentioned this lower part of the tract, and the testator had afterwards devised the upper, would the Court have had the power to contravene the express terms of the contract? If not, neither have they the power to change it in this case, where the lower part was as well known to have been contemplated as if it had been specifically mentioned. If this were a mortgage, would it be in the power of the Court to shift the lien from one tract of land, and fix it on another?</p> <p>Admitting the tract now in dispute had been the tract intended; the contract could, at utmost, only be regarded as a conditional sale, and not a mortgage ; for the Botetourt land was a mere ulterior security, or pledge, in case the Kentucky lands were not to be had. The breach of the covenant lies, therefore, in compensation, and the land itself should not be liable.(i) A lien never is created, where the vendor has not power, at the time of the contract, to bind the estate, (a) t</p> <p>In answer to this, the construction put upon the evidence was denied, and the tract now called Voss’s was insisted to have been the tract intended by the parties ; of which the appellant Lewis, from his connection with the family, and being one of'the administrators of William Madison, must have been apprized. At any rate, it being in proof that Mrs. Elizabeth Miadison gave him 307 notice, before his last ^payment of the purchase-money, and before he received the conveyance this was sufficient to bind him.(b)</p> <p>This notice was not sufficient to bind him ; there being nothing which shewed a lien on the land in question. Indeed, if such a lien could ultimately exist, it might never have attached. Eor aught that appears to the contrary, the land in Kentucky may yet be got. No eviction or loss of that land is proved ; and without evidence of this, the heirs of William have no claim upon the Botetourt land.(c) Lewis therefore remains abona fide purchaser without notice, against whom a Court of Equity will never decree specific performance.</p> <p>5. The proper parties are not before the Court. If the contract is regarded as a mortgage, the executor of the mortgagee, and not his heirs, should be the plaintiff.(d) The widow of Rowland Madison was a necessary party, because entitled to dower. If she was not so entitled in this case, a man might deprive his wife of dower by anticipating and passing off his acquisitions. The personal representatives of Rowland were also material parties; not only on account of their interest, but for the sake of information. Being possessed of his papers, they might, by their answers, give all-important information.</p> <p>To this it was answered, that a suit to foreclose a mortgage may be brought against the heir of the mortgagor, without making his executor a party ;* * and. by parity of reason, the suit here being to recover the land specifically, the heirs were the proper plaintiffs. If the widow of Rowland Madison be alive, as suggested, (of which there is no proof,) she need not be made a party. Her dower-right is paramount to any other, and cannot be affected by the event of this suit.</p> <p>The rule (though general) that all persons interested *must be parties, is yet liable to exceptions, according to the circumstances of each case, (e) In Collins v. Griffiths, 2 P. Wms. 313, it was decided that the executors of a deceased obligor in a joint and several bond may be sued in equity for the debt, without making the surviving obligor a party. So, in Harris v. Ingledew, 3 P. Wms. 93, 94, the suit being to subject lands devised to the payment of debts, and the devisees having been in quiet possession eleven years, a sale was decreed without the heir being a party : and in Darwent v. Walton, 2 Atk. 510, where one partner was out of the kingdom, the partner before the Court was compelled to pay the whole demand. In this case, the fact is established that Rowland Madison died insolvent, in another State ; and there is nothing in the record to show who his representatives were, or whether he had any. But, if their names were known, the act of Assembly, which authorizes proceedings against absent defendants, applies only to cases where a plaintiff wants a decree, but does not compel him to proceed against them.(f) Here the plaintiff did not want the representatives of Rowland Madison to be parties, as nothing could be got from them. It was the duty of the defendant to have called upon them for aid, if he wanted the information they could furnish.</p> <p>In reply,' it was said there was no proof of the insolvency of Rowland Madison ; neither was it averred in the bill, or proved, that his heirs resided in Kentucky. But, if such were the case, the plaintiffs were bound to make the proper parties, not for their own convenience, but the justice of the case. The authorities cited, as exceptions to the general rule, are not apposite to this. In each of those cases, the defendants, who were separately sued, (or the lands held by them,) were considered individually responsible for the whole claim of the creditor : of course there might have been no necessity to make other parties. Yet the case from 2 P. Wms. 313, seems inconsistent with the later authority of Madox v. Jackson, 3 Atk. 406. In this 309 *suit, it is essential that Rowland Madison’s heirs should be parties, whether he died insolvent or not; for they are interested in the question concerning this land, the title to which is derived from him. Besides, the derivative purchaser has, universally, a right to the assistance of the vendor, or his legal representatives; because they can prove whether the contract was discharged or not. They cannot be examined as witnesses, because they are interested; and the rule is universal that, where, on the ground of interest, a person cannot be used as a witness, he must be made a party, (g) If Lewis, on being cast were to sue the heirs of Rowland for compensation, they might yet prove against him, that Rowland satisfied the contract to William ; for, not being parties to this suit, they would not be bound by it. But he should not be driven to this alternative ; for a Court of Equity abhors circuity of action, and ought to prevent multiplicity of suits, (h) There was no necessity of a demurrer for "want of parties; for in Call v. Scott, and Hoover v. Donnelly, there was no demurrer.(i)</p>

The cases are fully stated, in the opinions which follow, and need not be repeated. insisted, that the facts shewed the appellant was a surety, and was absolved from all liability by the conduct of the appellee’s intestate, and by that of the appellee herself. *He said, that the suretyship might be established by evidence dehors the notes, even at law; and if not in a court of law, clearly in equity, (a) Maulé never protested the note on which Campbell was indorser; his…

This was an appeal from a judgment of the District Court of Hardy, rendered in an action of ejectment. The plaintiff (the now appellee,) claimed under a patent dated .May 26, 1791; the defendant (the present appellant,) under one dated June 28,1792.

This was a suit brought in the Williamsburg chancery court, and afterwards removed to the Fredericksburg district.

This was an action of covenant, brought by Cooke in the District Court of King and Queen, upon a warranty contained *in a deed poll, dated in 1779, by which, the testator, for a valuable consideration, conveyed to Cooke, a negro, and covenanted for himself and his heirs to warrant the title against all persons whatsoever. The declaration charges; that the negro had been recovered by Wm.

<p>Motion, in the county court of Rockbridge, at March term 1822, by Patton against Andrew, Thomas and Hugh Harper and James Anderson, for an award of execution on a forfeited forthcoming bond, executed by them, upon the levy of a fieri facias, which had been sued out by Patton against the three Harpers. The defence set up, was, that Andrew Harper had, since the forfeiture of the bond, paid the debt.</p> <p>The forthcoming bond was dated the 28th December 1819. The condition was, that whereas Patton had sued out a fieri facias against Andrew and Thomas Harper, and Hugh Harper their appearance bail, upon a judgment of the county court of Rockbridge, amounting with interest &c. to £ 72.14.0. and directed to the sheriff of that county, and the sheriff, by virtue of the said writ, “ had taken the following property, belonging to the said Andrew Harper &c. to satisfy the same, to wit” [here the property was specified] “ and the said Andrew and Thomas Harper &c. being desirous of keeping the same in their possession until the day of sale thereof, had tendered James Anderson, a’s security for the forthcoming and delivery of the property at the day and place of sale ; now, if the above bound Andrew Harper, Thomas Harper, Hugh Harper and James Anderson, or either of them, should deliver the said property to the sheriff or either of his deputies at the court house of the county, on the 15th January next, then and there to be sold to satisfy the said Patton’s execution, then the obligation to he void &c.”</p> <p>As to the question, whether the debt had been paid, the case was thus: The forthcoming bond was forfeited, and a notice was given to the three Harpers and Anderson their surety, that a motion would be made for an award of execution upon it, at March term 1820. On receiving that notice, Andrew Harper went to Patton, and requested him not to proceed upon the notice, and to take a parcel of flour, which Harper then had at Lindsey’s mill in Rockbridge, in part satisfaction of the debt: but Patton refused to purchase the flour, or to decline proceeding with his motion. The request was urged again, and again rejected. But, at length, Patton was induced by Harper’s urgent solicitations, to forbear his motion on the notice; and agreed at Harper’s request, to send the flour to Richmond, with the understanding, that the net proceeds should be applied to his credit on the forthcoming bond, and that some indulgence should be given for the residue of the debt. Harper was told by Patton that he should send the flour to his commission merchant in Richmond, to which Harper made no objection. In pursuance of this arrangement, Patton stayed his then intended proceeding on the forthcoming bond, (by which the debt was perfectly secured, the Harpers and their surety being all in good circumstances) : and, shortly after-wards, he caused the flour to be boated to Richmond, an,d consigned it to his own commission merchant there, with directions to remit the proceeds to him at Baltimore (where ho expected to be) about the 1st May 1820, by which time it was supposed the proceeds of the flour would be in die commission merchant’s hands. The commission merchant wrote to Patton informing him that the flour had been received and sold, and that the proceeds should be remitted to him according to his directions. Soon after receiving this letter, Patton left Rockbridge for Baltimore, and on j^s way Either, learned that the commission merchant had failed. He immediately took measures to secure the money, but without success: it was intirely lost. Indeed, Patton lost by the failure of the commission merchant, a large sum, the proceeds of other flour he had consigned to him; and several other merchants of Lexington in Rockbridge (where Patton resides) sustained losses by this failure. At the time Patton consigned Harper’s flour to the commission merchant, he was in good credit. An attempt had been made to settle this controversy, by arbitration; and Harper had distinctly admitted before the arbitrators, that Patton had exerted all the diligence in his power, to carry the arrangement with Harper into effect, in causing the flour to be sold, and endeavouring to obtain the proceeds, and that if the flour had been sunk in the river on its way from Rockbridge to Richmond, it would have sunk his (Harper’s) flour; but he contended, that he knew nothing of the commission merchant, that he was not his agent, and that he ceased to be responsible, after the flour had reached its destination, and its value was ascertained. The net proceeds of the flour wore not equal to the debt, but Harper had paid Patton the balance, before the motion on the forthcoming bond: so that the only question now was, whether or no, Harper was entitled to credit for the net proceeds of the flour? in other words, which of the parties ought to bear .the loss resulting from the failure of the commission merchant who sold it ?</p> <p>Upon this state of facts the county court held, that Harper was entitled to the credit claimed for the flour, and so the debt due on the forthcoming bond had been paid in full; and therefore overruled Patton’s motion for an award of execution upon it. Patton appealed to the circuit court, which reversed the judgment of the county court, and enjered judgment for Patton against all the obligors in the bond: but this judgment was, in its form, not a mere award of execution on the forthcoming bond, but a judgment, that Patton should recover of the obligors, the penalty of the bond, to be discharged by the debt mentioned in the condition, with interest and costs, subject to credit for the sums which had been paid in cash. And then they appealed to ibis court.</p>

<p>Ejectment* — Evidence—impeachment of Patent.† — In an action of ejectment, evidence cannot be introduced to prove that a patent was irregularly obtained.</p> <p>Same — Same—Same‡—Quere, whether in such case evidence is admissible that a patent was obtained by fraud.</p>

Ejectment in the District Court of Northumberland, brought by the appellee. The parties agreed a case, in substance as follows, viz. That William Keene the first, being seised, &c., by his will, made in 1681, devised 240 acres of land, (part of the tract in question,) to his son William and his heirs for ever, and if he died without issue, remainder over.

In September 1812, Reuben Norvell brought a writ of right, in the superior court of iaw for Amherst county, against John Camtn and Betsey… Held: moreover, that the petitioners, at whose suit, in 1774, the lands were adjudged forfeited by the original patentees of 1755, and the heirs or assignees of those petitioners, were even now entitled, by right of preemption, to claim grants for the lands so forfeited, and that such grants, when issued, would relate back to the date of…

This was an action of detinue for slaves, brought in the District Court of Fredericks-burg. On the plea of non detinet, a verdict was found for the plaintiff, and an appeal prayed to this court, upon exceptions taken to the instruction given *to the jury by the District Court.

<p>Specific Performance† — Decree for Money in Lieu Thereof. — On a bill In equity for specific performance of an agreement, the Court ought not, in lieu thereof, to decree a sum of money absolutely, but may conditionally: Hiving- the defendant his election, either to pay the money, or to perform the agreement specifically.</p> <p>Same — Same—Contumacy,—Tn such case, if the defendant be auifty of contumacy, and the Court, from the want of evidence which he is bound to disclose, be not able to direct the specific performance, a sum of money may, in like manner, be decreed for the purpose of compelling the production of such evidence.</p> <p>Attachment for Contempt -Sequestration.‡ — A writ of sequestration cannot regularly be issued on a sheriff's return of "non est inventus” upon an attachment for contempt.</p> <p>Writ of Sequestration— Proceedings to Obtain. — What are the regular proegedings whereon to ground a writ of sequestration.</p>

At the January term of the county court of Hanover for the year 1801, Samuel Richardson jr. was appointed guardian of Simeon, and Constance Austin.

'The case was as follows: In April 178S Beale recovered a judgment against Willis, for whom Cooke was special bail.

This was a suit brought in the Richmond chancery court, by Larkin Smith, and Sophia Ann, his wife, against Littleton W. Tazewell, executor of Benjamin Taliaferro, deceased, William McCandlish, and Mary Nelson, his wife, and others, defendants.

This was an ejectment, brought by Stip in the County Court of Berkeley.

George Thomson of Westmoreland, made his last will and testament in 1803, and shortly after died. At the time he made his will, he had two children by his wife, a son Thomas, and a daughter Elizabeth Griffith Thomson, and a natural son called Charles Thomson, alias Briarly; and his wife was pregnant of a child, who was born after the will was made and before the testator’s death, and called George. All these children, and the testator’s wife, survived him.

This was an action of trespass, brought by Jones against the appellants, in the District Court, who pleaded jointly, not guilty. A verdict was rendered against Johnson for ;£15, and the defendant Boswell was found not guilty. Upon the motion of Johnson alone, a new trial was awarded, and a verdict was after-wards found, for ,£60, against both defendants.

This was an appeal from the chancery court of Williamsburg. Isabella C. Fox, before her marriage with Emanuel Jones, entered into a marriage settlement, by a deed duly executed and recorded, by which the said Jones conveyed sundry slaves of his own and all the property to which he might be entitled by the mai-riage aforesaid, in trust for the sole and separate use of the said Isabella, her heirs- and assigns; and covenanted that he would, at any time during the coverture,…

Alexander Hunton, who died in 1789, by his will bequeathed a female slave named Letty to his daughter Nancy and her heirs forever; and having bequeathed likewise to ten others of his sons and daughters one slave each, he added—“ It is my will, that if any of my before mentioned children die without lawful heirs of their bodies, their estate left them shall be equally divided among the surviving children.” In July 1818, Robert, Susanna, John and George Hun-ton exhibited a…

The defendants in error brought an action of debt upon a bond with a collateral condition against Herbert Claiborne, William Claiborne and others, in the District Court. The appellant, a deputy sheriff, arrested the defendant Herbert Claiborne and made return thereof, signing his name as deputy sheriff, but failed to return a bond for appearance.

This was an appeal from a decree of the High Court of Chancery, dismissing the plaintiff’s bill, which was, to be let into a specific performance of a contract between the parties, by which the defendant Harris was to repair a mill for the plaintiff, and to receive payment for it, either in money, or in property at a valuation to be made by two honest men, to be chosen, ope by each party; and also to be relieved against a judgment at law obtained by the defendant, in…

This was an appeal from a decree of the High Court of Chancery. Thé case was as follows : The appellants instituted a suit in the General Court, against Benjamin and William Piper, the latter of whom being arrested by the appellee, (the Sheriff) was discharged, upon the parol agreement of Jett, to become bail for his appearance.

<p>The following opinions present so full a vie.w of the case, that any other statement would be unnecessary.</p>

Debt, in the late superior court of law for Ilardy county, in the name of William B. Giles governor of Virginia, successor in office of John Tyler, who was successor of James Pleasants, who was successor of Thomas Mann Randolph, who was successor of James P. Preston, (the said plaintiff suing at the relation of Strawder J. McNeill) against Isaac Vanmeter, Edward Williams and Samuel M'Mechin, upon the official bond executed by the said Vanmeter as sheriff of Hardy county, and…

A bill was brought in equity by Adams, against Peter and Carter Beverley, to compel a specific performance of an agreement entered into with Peter Beverley; or to subject the Cloverdale furnace and some adjoining lands to sale, for the purpose of raising the purchase money agreed to be paid by Beverley' to Adams.

<p>Judgment by Default — Entry—Appearance Bail.-* -If an oi'iice judgment be set aside and the suit defended by the appearance bail, and he afterwards waives his plea, judgment is to be entered against the defendant as well as the ball.</p>

<p>Chancery Practice — Bill lor Conveyance ol Land — Parties. — In bills in Chancery brought for discovery and for a conveyance of land or other estate, all persons Interested In such land, or other estate, ought to be made parties.</p> <p>Same — Same—Revival.—A suit in Chancery for a conveyance of land in case the defendant dies before a final decree, ought to be revived against his heirs and devisees, and all other persons holding, claiming, or in any manner interested, under him, in the land in cuestión..</p>

Peter Hull, the appellant, brought a suit in the Superior Court of Chancery for the Staunton District, against Robert Cunningham, sen. to be allowed a deduction from certain bonds for purchase-money,… Held: ■ 33S and *must have contemplated conveying them to the purchaser.

Lee brought trespass to recover from Cooke the mesne profits of a tenement which he had recovered in ejectment. After the issue was made up, Cooke died ; at a subsequent term, his executors appeared by attorney, *and the cause was continued. And at the term next ensuing, the cause was directed to be struck off the docket; the court thinking the action abated by the death of the original defendant. A supersedeas was obtained from the court of Appeals.

This was an action of debt, brought by the appellants against the appellees, as indorsers of a protested bill of exchange, drawn by Robert Morris, of Philadelphia, in the State of Pennsylvania, which was indorsed to the appellants in this State. The declaration is upon the Act of Assembly.

<p>This was an action of debt, brought in the District Court of Williamsburg by the appellant, upon a bond given to him for and on account of Messrs. Glen and Peter, merchants in Glasgow. The declaration states the debt as due to the plaintiff, without mentioning for whose use.</p> <p>The defendant, without craving oyer, put in the following pleas.</p> <p>1st. Payment. 2d. That the debt was originally due to a British subject, and was acknowledged by the testator to the plaintiff, on account of Glen &? Peter, merchants in Glasgow, who were British subjects ; and was contracted before the 1st of May, 1782, and was not transferred to a citizen of this State, nor to any person capable of maintaining an action in this Commonwealth, at any time before the 1st of Maijy 1775, for a valuable consideration. There are many other pleas, all unimportant to the decision. At “ie tr*’ab an objection was made by the defendant to the admission of the bond in evidence; because the bond stated in the declaration, was given to Walter Peter, and the one offered in evidence, is to Walter Peter, ofthe County of Surrey, on account of Messrs. Glen & Peter, merchants in Glasgow. This objection being sustained by the Court, the plaintiff filed an exception to the opinion; and a verdict and judgment being given for the defendant, the plaintiff appealed.</p>

This was an action on the case brought in the superior court of law and chancery for the county of Campbell, by Thomas Franklin against Norborne M. Taliaferro. On the trial of the cause, the jury found a verdict for the plaintiff, and the defendant moved the court for a new trial, on the ground, that the verdict was contrary to evidence, but the court overruled the motion and gave judgment for the plaintiff.

On an appeal from a decree of the Superiour Court of Chancery for the Richmond District pronounced by the late Chancellor. The case was this.

Dempsey was born the slave of one David Wallace, and descended to his son William. He hired himself of his master William Wallace, and having accumulated the sum of $¡100, agreed to pay it, and $¡200 more at a future day to his master, provided he would emancipate him. The proposal was accepted.

<p>This was an appeal from a judgment of the District Court of Charlottesville, affirming the judgment of the County Court of Charlotte, upon a bond given for the forth-coming of property taken under execution.</p> <p>The condition of the bond is, “ that if the said Hubbard £s? Tomkics, shall deliver to Samuel White, Sheriff, &c. on Friday, the 15th day of June next, at Charlotte Court House, being the day of sale appointed by the Sheriff, three negroes, £by name,] which were taken under execution by a writ oí fieri facias, issued from the office of the County Court of Charlotte, to satisfy the said John Taylor, the sum of 151/. 6s. 11|(/. then/’ &c.</p> <p>The objection to the judgment, insisted upon by Mr. Wickham, was, that the condition does not mention the person against whom, the execution issued, or upon whose property it was levied.</p>

This was an appeal from a judgment of the District Court of Charlottesville, injan action upon the case brought by the appellee. The declaration stated, that John Carr, deceased, by his will, directed his executors, (of whom the defendant was one,) to sell a tract of land, the property of the testator ; that the plaintiff was employed by the executors to cry this tract of land at public auction, when the same, was purchased by a certain John Moore, who was the highest bidder.

John Tayloe, by a will recorded in July 1779, gave a charity to the poor of Richmond county in these words, The Chancellor on bill and answers shewing this case, decreed the administrator de bonis non of Tayloe, to pay 5001. sterling at an exchange of 36 per cent, advance, in current money, with interest at 5 per cent, from the 29th May 1799, to the plaintiffs: and directed the overseers, to vest it in stock of the bank of the U. States, or in one of the banks of Virginia,…

This was an appeal from a decree of the High Court of Chancery, affirming a decree of the County Court, which dismissed the bill of the appellant Southall.

<p>John Tayloe, by a will recorded in July 1779, gave a charity to the poor of Richmond county in these words, <!I gave to the minister and vestry of the parish of Ivunen-burg, and their successors the ministry and vestry of the said parish, 5001. sterling; in trust, for the use of the poorest inhabitants of the said parish, being honest people; to be let to interest on good land security, or otherwise, so laid out, that the interest or better profits thereof, be distributed with equity and justice by the minister and vestry aforesaid, among the poor aforesaid, every year, at the lower church of the said parish on restoration day, &c., this legacy to continue for ever.” The trustees continued to distribute the charity until the year 1799, after which there was neither minister nor vestry in the parish. The bill recited the several acts of Assembly on the subject of the Protestant *E}piscopal church, and relied particularly on that of 1805, by which all donations for charitable purposes made to vestries in parishes in which there had ceased to be vestries, should devolve on the overseers of the poor of the said parishes; and should be managed by them for the objects of the original trust.</p> <p>The Chancellor on bill and answers shewing this case, decreed the administrator de bonis non of Tayloe, to pay 5001. sterling at an exchange of 36 per cent, advance, in current money, with interest at 5 per cent, from the 29th May 1799, to the plaintiffs: and directed the overseers, to vest it in stock of the bank of the U. States, or in one of the banks of Virginia, as they thought best; and to apply the annual proceeds, to the relief of the poorest inhabitants of the parish,being honest people.*</p>

Miller brought debt against Beverley, M’Buer, and Hiori, in the Superior court of law for Rockbridge county, on a super-sedeas bond, given by them jointly, to Miller, for the successful prosecution of the supersedeas to a judgment, given in the county court of Rockbridge &c. with the usual condition annexed. The suit abated as to Beverley and Hiort, on a return of their being no inhabitants.

The appellee brought an action of detinue to recover a number of slaves. Upon the pleas of non des tine t, 'and the Act of Limitations, the jury found a special verdict, as follows.

The appellee obtained a judgment against the appellants, on a forthcoming bond, at the District Court, held at Washington Court-House, on the 4th of October 1805: irom which judgment an appeal was taken, at the same term, to this Court; but no record of the appeal was sent yp, More than two terms having elapsed, and the appellee having died intestate since the appeal, He rung moved to enter an appearance for his administrator, and to dismiss the appeal without resorting to a…

This was a suit originally brought in the late High Court of Chancery by James 340 Steptoe and others, relations *(on the part of the father) of Edward Steptoe, an infant, (who died intestate, unmarried, and without issue, on the 24th of May, 1794,) against Elizabeth Steptoe, his mother, and William Steptoe, his paternal uncle; executrix and executor of George Steptoe, his father, for an account and division of certain property, real and personal, of which he the said Edward…

The only question in this case was, whether, under the Act of Assembly intitled “ An Act laying taxes for the SUpp0rt of government,” passed the 23d of January 1^99.

Debt in the county court of Halifax, brought by Bennett as assignee of Boyd, against Carrington, on a bond for 353 dollars, executed by Carrington to Boyd, and by him assigned to Bennett. Carrington pleaded, that the consideration of the bond was money won of him by Boyd, at unlawful gaming, by playing at cards: and on this plea an issue was made up.

This was an action of covenant brought by the appellee against the appellants in the District Court of Dumfries. The case was as follows: John Alexander, by his will devised to the appellee, his son, in fee simple, a tract of land lying in and adjoining to the town of Alexandria part whereof was laid off into lots.

Austin’s executor brought detinue against Jones, for several negro slaves by name, and of specified value; among them was one called Beck; the defendant pleaded non det-inet'. There was a verdict for the plaintiff; but the jury found also, that Beck who was included in the first part of the verdict, died after suit brought and no damages, were given. The court gave judgment for all the slaves but Beck; of her, no mention was made in the judgment. The plaintiff appealed.

On an appeal from a decree of the High Court of Chan» eery. John Worsham, the testator of the appellant, being indebted to McKenzie by bond in which his heirs were bound, departed this life, leaving lands incumbered by a mortgage as well as a considerable personal estate under no incumbrance. These lands he devised to William Worsham the appellant, and made him his executor.

<p>This was an appeal from the chancery court of Richmond.</p> <p>The case was this :</p> <p>William Ronald, in 1788, mortgaged to Mary Plum-stead, an undivided moiety of 99£ acres of land, lying in the county of Chesterfield, on which certain coal-pils called the ¿lack-heath coal-pits were situated. The mortgage was to secure the payment of 1090/. 10s. in two instalments.</p> <p>William Ronald died in 1793, intestate, leaving a widow and two infant children; and William Bentley became his administrator and the guardian of his children.</p> <p>Soon after the death of William Ronald, a suit was instituted by Samuel Swann, (who had purchased the right of the said Mary Flumstead in the said mortgage) against the said Bentley as the administrator of the said Ronald and guardian of his children, to foreclose the mortgage; and a decree was rendered in 1795, to sell the ]and by a certain day, unless the money due on the mortgage, should be paid by Bentley before that time. To this suit, Catharine (the widow of Ronald) was not a party.</p> <p>The money not being paid, the land was sold, and Harry Heth and John Stewart, under the firm of Heth and Stewart, became the purchasers for 3150Í. $ out of which 4861. 1s. 4d. was paid to Swann: and 1663l. 18s. 8d. was paid to Bentley, as guardian of the infant children Ronald.</p> <p>Catharine Ronald afterwards married William A. Cocke; and they jointly filed a bill against Heth and Stewart, Bentley and the administrator of Swann, asserting the right of the female plaintiff to one-third of the said land and its profits, since the death of Ronald, or to one-third of the profits until the sale, and then one-third of the amount of the sale, with interest thereon: that the female plaintiff, not having been a party to the suit for foreclosure, is not bound by the decree or sale : they also pray, that John and Samuel Swann, who leased the said coal-pits of Bentley, for three years, may pay to the plaintiffs one-third of the rent.</p> <p>All the defendants denied the validity of the plaintiffs’ claim. The representative of Swann, pleaded the act of limitations to the claim for one-third of the rents while the coal-pits were in the occupation of his testator.</p> <p>Heth pleaded, that he was an innocent purchaser without notice, under the decree of the court, aud that before he had notice of the claim of the plaintiffs, he had paid for the said land.</p> <p>By an amended bill, tbe sureties of William Bentley to his guardian’s bond, and the representatives of such of them as had died, were made parties.</p> <p>The chancellor decreed, that certain commissioners should assign and lay off the dower of the female plaintiff, in the said land and coal-pits ; that Heth should render an account of the annual rents and profits of the premises in question, from the filing of the bill ^ and that the bills, as to all other matters, should be dismissed.</p> <p>From this decree, Heth prayed an appeal, which was granted.</p> <p>This cause was argued by Hay and Wickham for the appellant, and by O’ Reilly for the appellees.</p>

<p>David M. Malone of Greenesville county made his will on the 29th of April 1833, whereby, after desiring that all his just debts might be paid, he devised a tract of land on which he lived to be equally divided between his aunt Elizabeth Wyche’s children and his aunt Sally Davis’s, that is, one moiety to his aunt Wyche’s children, and the other half to his aunt Davis’s children. He bequeathed bis negro man Deter to William, H. Hobbs senior, and his two negroes Charlotte and Mason, with their future increase, to Franhj Willcins; and he also made devises and bequests to Edmunds Mason, Frances Mason his wife, John Y. Mason, George Mason, Eliza the wife of James B. Mallory, Lawrence G. Heath, James E. Mason and James M. Wall. At the time of making this will, the testator was unmarried; but afterwards, to wit, in November 1834, he married Ann Wilson. There was no child born of the marriage; and in January 1837 the testator died. On the sixth of March 1837, the will was proved in the court of Greenesville county by M. H. Hobbs and William F. Hobbs the two attesting witnesses, and admitted to record; and John Y. Mason the executor named in the will having declined the executorship, administration with the will annexed was granted to Edmunds Mason. The testator’s widow died soon after, and in May 1837 administration on her estate was granted to Baxter R. Wilson.</p> <p>Thornton P. Wyche and others, as children of Eliza- • beth Wyche, filed a bill in the court of Greenesville county against Elizabeth Malone and others, as children of Sally Davis, setting forth the devise to the children of Eliza^el^1 and of Sally Davis, and asking a decree for a division of the tract of land devised, or for a sale of the same and a division of the proceeds. The bill was duly answered, and the cause being heard, a decree was pronounced in October 1837, under which a sale was made and the proceeds divided ; and the report of the sale and division was confirmed in November 1837.</p> <p>The negroes Charlotte and Mason were, under an order from Frances Wilkins of the 5th of October 1837, delivered to William Wilkins the 1st of January 1838.</p> <p>In July 1839, a bill was filed in the circuit court of Greenesville, under the act in 1 Rev. Code of 1819, p. 378. § 13. contesting the validity of the will. The decedent having left no descendants, no father, mother, brother or sister, no descendant of his mother or of any brother or sister, and no grandfather or grandmother, the suit was brought by uncles and aunts and their descendants, to wit, by William H. Hobbs and Martha his wife, and others. Among the plaintiffs were Franky Wilkins and the children of the decedent’s aunts Elizabeth Wyche and Sally Davis. The only allegations in the bill impeaching the validity of the will, were in these terms: “Your complainants deem it unnecessary to refer your honour to the various bequests contained in said paper, or to allude to the remarkable fact that a sensible man should die with such a will, his wife living, and not the least' preparation of any kind made for her comfort and support. Your complainants think it only necessary to state their thorough conviction, and they therefore charge, that said paper was not the will of David M. Malone.” The prayer of the bill was for an issue devisavit vel non, and that the court would set aside the will. Edmunds Mason as administrator with the will annexed and in his own right, Frances Mason his wife, John Y. Mason, George Mason, James B. Mallory and Eliza his wife, Lawrence G. Heath, James E. Mason, James M. Wall, and Baxter R. Wilson administrator of the widow, were made defendants.</p> <p>Edmunds Mason answered, saying, he was unable to comprehend from the bill on what ground the validity of the will was contested ; stating the acts before mentioned of mrs. Wyche's children, mrs. Davis’s children, and Franky Wilkins, (which were proved by exhibits filed with the answer,) and relying upon those acts as a recognition of the validity of the will. He then proceeded to set forth such circumstances as he knew in relation to the testamentary dispositions of the testator. John Y. Mason also, in his answer, detailed such circumstances as were in his knowledge. But these answers not being evidence in favour of the defendants,* it is not deemed necessary or proper to narrate the circumstances set forth by them.</p> <p>None of the other defendants answered except Baxter Wilson the brother and administrator of the widow, who stated that Edmunds Mason, the principal legatee in the will of Malone, did, soon after the death of Malone, by deed of gift (which respondent filed with his answer) generously convey to the brothers and sisters of mrs. Malone all the slaves which Malone acquired by his marriage.</p> <p>The cause (after a previous trial elsewhere, on which the jury disagreed) was removed to the circuit court of Petersburg, and an issue was directed to be tried on the common law side of that court, to ascertain whether the writing purporting to be the will of Malone was in fact his valid will. The trial took place on the seventeenth and eighteenth of November 1841.</p> <p>At the trial, the bill, answers and exhibits were read to the jury, and on motion of the plaintiffs the court instructed the jury that the answers were not evidence for the defendants, except so far as they were responsive to the bill. The defendants, in support of the issue on their part, adduced the following evidence : 1. The will an(^ Pr°bat thereof. 2. They proved by the subscribing witnesses to the will, that at or about the date thereof, and when the testator was unmarried, he came to their store, one morning before breakfast, from the direction in which he lived, produced the writing, and requested them to witness it; which, upon due acknowledgment thereof by him, they did, by subscribing their names thereto in his presence. One of the said witnesses further staled that D. M. Malone lost his parents when quite young; that he went to live with Edmunds Mason who was his guardian, and remained there till of age ; and that he always expressed great affection and respect for mr. Mason.</p> <p>The plaintiffs then introduced the following witnesses :</p> <p>1. Jarrett Weaver; who deposed, that he was sent for to see the testator in his illness, and after some conversation about his situation, between the testator and witness, and between the testator and dr. Parham, witness asked him, “Have you made that disposition of your property which you wish if you should die ?” He said, he had not. Witness then asked him if the law would dispose of his properly as he wished l He replied, it would not. Witness then urged him to make his will without losing any time. He said he would do so the next morning. But he died before it was done. The next morning, witness went over to the testator’s, and found E. Mason there. Witness said to him, “ I suppo.se judge” (meaning the testator,) “ has died without making any provision for his wife, as he has .left no will.” E. Mason replied, “Yes, he has ; there is a will in John T. Masonh handsand then went on to remark, that after the making of the will, the testator purchased two negro boys of David Watlcins; that, r # °^ 7 . being taken ill at William Hobbs's, testator sent for him (E. Mason) to see him; that he went down, and the next day testator was carried back to his (E. Mason’s) house; that, at his house, testator requested him to write a will giving him (E. Mason) those two boys; that he {Mason) told him, he did not know that it would be worth while to write a will, saying, “ You have a will, and a codicil will answer;” to which testator assented, whereupon he {E. Mason) wrote a codicil giving to himself those two boys, and testator had the codicil witnessed : that the first time Malone came, after his marriage (which he did shortly thereafter), to his {E. Mason’s) house, he {E. Mason) took the paper or papers (witness did not remember whether he said paper, or papers) in his hand, and coming into the room where the testator was, said in a jocular way, “ Well, judge, you are married now, I suppose we may as well destroy those papers.” Testator replied, “Yes, destroy them; they are of no force nowand he {E. Mason) threw the codicil into the fire. Witness is certain that the expression which E. Mason told him he used to the testator was, “ I suppose we may as well burn those papers,” and that the reply he said the testator made was, “ Destroy them ; they are of no force now.” The witness mentioned that dr. Parham and himself were called on by John Y. Mason at the time the will was proved, to go before the court, and testify to what they had heard the testator say. He also mentioned an expression of the testator, disapproving the conduct of a man who had not made, as he thought, proper provision for his wife.</p> <p>2. Thomas Jones ; who deposed to similar expressions by the testator about that same person, and a declaration by him that he would rather his wife should have what he had, than any other person. He never heard testator speak of having a will.</p> <p>3. B. JR. Wilson, one of the defendants; who deposed to a conversation with testator shortly before his death, in which he said, “ that he had made no preparation for this world or the next; that he wished witness to take charge of his affairs;” and further deposed as follows : “ The day after Malone's death, very early in the morning, mr. E. Mason came to Malone's. In the course of that day or the next, he shewed me the will of mr. Malone; that is, I took it to be his will, not having my attention drawn to the fact. Mr. Mason spoke of it as a will. I heard, I think, from him or some other person, that he (mr. Mason) had sent for it to John Y. Mason's. I saw mr. Mason's old servant ride up, before I saw the will. I did not see any communication between him and mr. Mason. I never heard Malone speak of having a will.”</p> <p>4. Dr. Thomas Parham, the attending physician of the testator in his last illness, who had been living in testator’s family for several years before his death. He heard testator say, about four or six weeks before his last illness, that he intended to leave all his property to his wife. The night before his death, after some conversation about his situation, he remarked that he would not die without a will, or making a will, (witness does not recollect which,) for some large sum of money which he named. Witness then offered to bring pen, ink and paper, that one might be written. He said he would put it off till the next morning, when he would do it the first thing. But he died just before light the next morning. After mentioning the terms on which he and the testator were, and the happy manner in which the testator and his wife lived together, the witness deposed, that in a conversation which took place between himself and E. Mason at David M. Malone's residence, the day after his death, Mason asked the witness if David M. Malone had done any act which would revoke a will ? stating that there was a will in the possession of J. Y. Mason. Witness told him he did not know what was sufficient to revoke a will; but went on to tell him what had passed the night before D. M. Malone’s death, as above mentioned. In that conversation mr. Mason told witness, that David M. Malone had made a codicil to his will, which disposed of negroes acquired after making his will, and that the first time he came to his (E. Mason's) house a few weeks after his marriage, he (Mason) said to testator, in substance, (witness cannot depose to the words), “ I suppose the paper or papers are of no use now,” and that testator replied, “ Yes, destroy or burn them,” (witness does not recollect which,) “ I have got somebody else to leave my property to now.” Witness never heard Malone speak of having a will. He also stated a remark made by Malone, some ten or twelve months before his death, indicating that be thought it possible his wife was pregnant.</p> <p>5. John Ezell; who deposed to a conversation with testator after his marriage, at a time when (using the language of the witness) he was “ a little drinky,” in which conversation testator asked witness if he had made a will, and witness saying no, testator replied, “ Nor I either, but I intend to make one ; for every man ought to have a will.”</p> <p>6. John Powell; who deposed that in the spring before testator’s death, he heard testator say that he intended to give all his property to his wife in case of his death. He also mentioned a remark by the testator on some occasion disparaging to E. Mason.</p> <p>7. William Lucas ; who mentioned a conversation with the testator after his marriage, in which he intimated that he thought the Mason family did not like his marrying, and declared that if he were to die, he would give his wife every thing he had.</p> <p>8. H. L. S. Batte; who mentioned a conversation between him and the testator, in which, the witness having informed him that he had a will by which he left all his property to his wife in case she had no children, testator said, he did not have a will, but intended to make one to the same effect, as he thought it a good will.</p> <p>9. Baxter II. Wilson, Thomas F. Jones, M. H. Hobbs and William H. Hobbs ; who stated that they had heard the testimony of Jarrett Weaver, and that he made statements to them to the same effect, soon after Malone’s death.</p> <p>The defendants on their part, to rebut the evidence of the plaintiffs, then introduced the following:</p> <p>1. The deposition of Nathaniel Young, who, since giving it, has died. This witness deposed, that in the last week of November 1835, he was at the house of ■John T. Mason in the county of Southampton, and David Malone came to said Mason’s, where he spent the day and staid all night. He slept in the same bed with deponent. While in bed, Malone asked deponent wbat could be the reason that his wife would not have a child ? to which deponent said, “ The reason is that you are deficient and cannot perform your part.” Malone replied it was not his fault, but there was a defect or disease about his wife that would certainly prevent her from breeding, and he had made up his mind never to alter bis will unless his wife had a child. Deponent then asked him if he kept a will by him, to which Malone answered, “ Cousin John Y. wrote my will before I was married, and had it to take care of for me, and I am determined never to take it out of his possession or alter it, unless my wife shall have a child; for there is a blamed set of folks gaping round me for what they think I will give them, but they shall be disappointed.” Deponent then, in a joking manner, asked Malone if he had remembered him (deponent) in making his will ? He replied no, he had given his property to those who had been his best friends; and stated that he had given his cousin John Y. some negroes, to doctor George Mason a boy and his old horse Baptist, to Eliza Mallory wife of colonel./. B. Mallory, a negro man, to James M. Mason of Tennessee some negroes and a debt due him, to Lai Heath he had given his hounds and rifle and some other property; that he had given his lands to two of his aunts, and he had given mr.- W. Hobbs a legacy, and all the rest of his estate of every kind he had given, as he had always intended, to his uncle Edmunds Mason, who had been a father to him.</p> <p>(After the reading of this deposition, the plaintiffs proved that Young, in a former trial, had stated in his evidence, that after he and Malone had gone to bed, testator mentioned the circumstance of his wife’s health, and said he thought she would never have a child, and did not think she would live long. The plaintiffs examined several witnesses to prove that mrs. Malone was in good health until a few months before her death. And the defendants admitted that Young was about 60 or 70 years old, and the brother of mrs. Edmunds Mason.)</p> <p>2. Josiah Holleman; who deposed to mr. Young's being a man of unexceptionable character, and of uncommonly tenacious memory as to dates, places, names and circumstances. Mr. Young was the clerk of Isle of Wight county until his death.</p> <p>3. Robert M. Boylcin; who was at John Y. Mason's on the occasion referred to by mr. Young. His statement is as follows : “I retired about 11 o’clock. On ascending the stairs, I heard mr. Malone and mr. Young in conversation. I did not understand on what subject they were conversing. I well recollect waking several times during the night, and at each time they were in conversation. I recollect distinctly asking mr. Young what he and mr. Malone could find to talk about on the occasion alluded to; and added, that they could not have slept any that night. Mr. Young replied that they did not sleep much ; for David was telling him, nearly the whole night, of his will, and of an affection of his . wife. I do not recollect the precise time that these questions were propounded to mr. Young, but believe it was the next day.” BoyJcin stated that he was a son in law both of mr. Young and of Edmunds Mason. °</p> <p>_ 4. Nathaniel P. Young; who was also at John Y. Mason's on the occasion referred to by his father. He stated that about 9 o’clock at night, Malone asked his father to walk out with him. They left the room. His father soon returned, said that David wished to sleep with him, and went off to bed. Shortly afterwards, doctor Geo?ge Mason and the witness retired to a room adjoining the one in which his father and Malone were. The statement of the witness is then as follows: “ They were in conversation when we retired, and continued it so long as I was awake. When my father and myself arrived at home, I enquired what could have engaged him and David so much in conversation when they slept together at judge Mason's. His answer was, that David (or the judge, as he called him) was talking of his will. This was in my father’s chamber. He said nothing of the provisions of Malone's will, or the disease of his wife, as there were ladies present.</p> <p>5. William H. E. Merritt; who travelled to Mississippi with Malone in the winter of 1832-3. Malone, he said, frequently spoke in terms of great affection and respect of Edmunds Mason and his family; and the witness, from what he saw, (being with him at the houses of two of his relations) thought that he had unkind feelings towards some of his relations there.</p> <p>6. Benjamin Myric/c; who deposed, that he heard Malone say before his marriage, that there was a set gasping after his property; that Malone spoke of giving a negro girl to a little daughter of witness, and witness said, “You had better give me Jim for a gardener.” Malone replied, “I can’t do that; aunt Mason would blow me up.” He said he had promised him to his aunt Mason (meaning the wife of Edmunds Mason).</p> <p>7. Norphlet L. Fond; whose respectability and character for veracity were deposed to by dr. Urns A. Brown and Benjamin Myrick. Fond deposed, that while at work at E. Mason’s on a cotton gin, before D. M. Malone was married, witness was sent for and requested by testator to witness a paper. He and mr. Mason's overseer {Davis) witnessed it. It was on a small piece of paper, and witness saw nothing but the name “ Cynthia.'' He did not know what it was. In March before testator’s death, witness went to his house to have a settlement with him, and witness and testator went hunting. Testator advised witness to get married, saying he had been much happier since he was a married man, and would be more so but for his wife’s situation. In the course of the evening, testator said he had a will, and did not intend to be without one, (he did not say where his will was;) that there were a set of fools gasping after his property, who should never have it. He did not say who they were. He said, he never expected his wife to have a child. After testator told witness he had a will, witness asked him what the paper was he had witnessed ? He said, it was a codicil to his will, but it was then of no account, as it had been burnt or destroyed.</p> <p>After which the plaintiffs read a deposition previously given by Fond, in which, in answer to the question whether he was ever called on by David M. Malone to attest any testamentary paper or writing, he said, “ I witnessed a piece of paper, about the size of the caption of this deposition, which he afterwards told me was a codicil to his will, and which devised certain negroes after he had made his will. This paper was executed before the marriage of the said David M. Malone, and bequeathed those negroes to the defendant E. Mason.'' And now upon cross examination, being asked by the plaintiffs’ counsel, how it was that in his deposition he stated that the paper he witnessed bequeathed certain negroes to E. Mason, and that he now states he does not know what was in it (the paper), he said in answer, that he had no explanation;, his deposition and evidence would speak for themselves.</p> <p>In the same deposition, being asked whether he ever had any conversation with Malone about his will after his marriage, he said, “ I did. About 10 or 12 months before his death, he was advising this deponent to get married, said he had been happier since his marriage, that there were some people gasping after his property who should never have it, that he had made his will and never intended to be without one. He did not designate who they were, or call any names. The said Malone’s wife was in bad health, and he told this deponent that he never expected any child. Mrs. Malone was very ill when David M. Malone died, and survived him but a few weeks. David M. Malone was much attached to E. Mason and L. G. Heath, which attachment was never interrupted.” And now upon cross examination, being asked by the plaintiffs’ counsel, whether mrs. Malone was in bad health when he and the testator went hunting? and having answered that he did not know whether she was or not, the witness was then asked to account for the fact that he had stated in his deposition that she was in bad health at that time. He answered, that he did not know any thing about it, except that David M. Malone told him.</p> <p>In the same deposition, being asked whether he ever heard from Malone where' his will was, or any thing about his will, he said, “I never did. I heard him say he had one.” And being further asked how often did he ever hear David M. Malone speak of his will, he said, “ Never but once, and that as stated above.” And now upon his cross examination, being asked by the plaintiffs’ counsel, if he did not say, on the first trial of this cause, that he had had several conversations with Malone on the subject of his will, he replied that he might have said so. If he did, he meant that they were all the same evening. He does not recollect whether he said they were all on the same evening or not, at the first trial, because he does not recollect that the question was asked.</p> <p>_ _ _ In the same deposition, being asked whether D. M. Malone ever told him what became of the codicil, he answered, “ He never did. He told me after his marriage that that paper was then of no account.” And being further asked whether be gave any reason why the codicil to his will was then of no account, he answered, “He did not.” And now upon his cross examination, being reminded of his stating that Malone told him that the codicil was burnt or destroyed, and being asked how he accounted for having sworn in his deposition positively that he did not tell what had become of it, he answered, that after giving his deposition, in reflecting, he recollects that Malone did tell him the codicil was burnt or destroyed.</p> <p>The defendants moved the court to give the two following instructions to the jury: 1. If the jury believe that the will was written on a sheet of paper, and the codicil on another sheet or piece, then the mere destruction of the codicil did not revoke the will. 2. If the jury believe that the testator intended, at the time of destroying the codicil, to destroy or revoke the will, but reserved the destruction or revocation thereof as matter to be afterwards carried into effect, and did no further act to revoke or destroy it, in that case the destruction of the codicil, though done with the intention thereafter to revoke or destroy the will, did not amount to a revocation or destruction of the will. And the plaintiffs opposed the same. But the court gave both instructions.</p> <p>The court, however, on the motion of the plaintiffs, added the following:—But if the jury believe from the evidence, that Malone directed the will to be destroyed, and thought that it was destroyed as requested, the court then instructs the jury that the said will, so far as it related to the personal estate, was revoked in law, although it might not in fact have been destroyed. Moreover, if they shall believe from the evidence, that Malone intended, at the time of destroying the codicil, thereby to destroy or revoke the will, in that case the destruction of the codicil was a revocation of both the will and codicil. To the instruction so added by the court, the defendants excepted.</p> <p>On the 19th of November 1841, a verdict was found against the validity of the will. When the jury rendered their verdict, they requested permission to state in open court, and did state, that they did not design or intend by their said verdict to cast the least censure on the conduct or character of Edmunds Mason or John Y. Mason, but that their verdict resulted from the opinion, unanimously held by them, that David M. Malone, in the act of destroying the codicil to his will, intended thereby to revoke or destroy the will also. And the court, uniting with the jury in exempting Edmunds Mason and John Y. Mason from all censure, did, with the consent of parties, make a memorandum to this effect part of the record.</p> <p>The defendants, after the rendition of the verdict, moved the court to certify that the verdict was against evidence ; but the court overruled the motion, and the defendants excepted to the opinion. The evidence was spread upon the record; and the same was, by consent, taken as a statement of the facts proved on each side.</p> <p>On the 4th of December 1841, the defendants moved the court for a new trial of the issue; but the court overruled the motion. Whereupon the cause coming on to be heard, the court decreed that the paper admitted to record in Greenesville county court, at March term 1837, as the last will and testament of David M. Malone, be set aside and declared null and void.</p> <p>From this decree an appeal was allowed.</p>

<p>1. A deed of marriage settlement made before the marriage, conveying the property of the wife, and in which the intended husband joined, is fraudulent and void as to subsequent purchasers from the husband, without notice, unless duly recorded.</p> <p>2. The case of Pierce v. Turner, 5 Cranch 162, and the opinions of judges Carr, Coalter, and Brooke, in Land v. Jeffries, 5 Rand. 211, overruled.</p>

These three causes were heard together, being appeals from decrees of the lace judge of the Superiour Court of Chancery for the Richmond District.

This was an appeal from a judgment of the District Court of Charlottesville, over-ruling a motion made by the appellants, upon a bond given by the appellee, upon the service of an execution, conditioned for the delivery of one thousand bushels of wheat at the day, and at the time of sale appointed by the Sheriff.

Edward Billips and others claiming under him, exhibited their bill in the superiour court of chancery of Staunton, against Andrew Lewis and others devisees of Thomas Lewis deceased, and John Morris and others claiming under William Morris deceased, Shadrach Harman deceased, Thomas Teas and William Neely, setting forth : That Billips, in 1794, holding a land office treasury warrant, put the same in the hands of Thomas Lewis to locate for him.

This was an appeal from a decree of the High Court of Chancery, upon the following case. A suit was instituted by Tfebber and wife, in the former General Court, on the Chancery side, against the father of the appellant and of Mrs. Webber, stating that the father had, by a deed executed in 1754, conveyed to his said daughter, whilst single, several tracts of land, together with sixteen slaves, and all the furniture and stocks on those plantations.

<p>A man dies intestate, leaving a widow and three infant children. The widow marries a second husband. Two of the children die under age, leaving the slaves, derived from their father, to be divided between their mother and the surviving child. The mother and her second husband bring' a friendly suit in chancery, against the administrator and surviving child of the first husband» to obtain a division of the slaves of the deceased children. Commissioners are appointed to make the division, who perform that duty ; but their report üs never returned, and of course, never confirmed. The slaves remain on a plantation, in possession of the second husband and his wife. In this state of things, the second husband dies. His administrator brings a suit ¿n chancery, to recover the slaves so assigned to his wife, as being vested in him absolutely, by virtue of his marriage. Jfelcl by a divided court, that under the circumstances of the case, the husband did not acquire a right to the slaves.</p> <p>Quiere, how far a possession by a husband, under an interlocutory decree, agreed to, and acquiesced in, by an executor or administrator, and all parties concerned, will be considered as vesting the property hi the husband and his representatives ?</p> <p>A court of equity, has jurisdiction for the recovery of slaves, wherever a discovery of the increase of female slaves, after a considerable lapse of time, and an account of hires and profits of a stock of slaves, where some of them may have been young and chargeable.</p>

This was a special action on the case, brought by the appellant against the appel-lees in the County Court of Westmoreland.

This was an action on the case by Digges against Edmunds, in which the declaration charged in substance, that the defendant exchanged with the plaintiff 400 dollars of the notes of the Mechanics Bank of Alexandria, for other bank notes; and undertook, and promised that the Mechanics Bank notes were, at the time of the exchange, sound and current; and were worth 400 dollars in value ; whereas they were at that time utterly worthless.

<p>Pleading — Declaration—Several Counts — General Demurrer — Effect.*—if there be several counts in a declaration, and any one of them good, though all the rest be, faulty, a general demurrer to the declaration ought to be overruled, and judgment entered for the plaintiff, provided the counts can be properly joined in the same action.</p> <p>Same — Same—Same—Defective Counts — How Availed of after Demurrer.† — In such case, if a writ of inquiry be executed, after overruling the demurrer, it seems the defendant may, nevertheless, object to the admission of evidence applying only to the faulty counts, and tender a bill of exceptions or demurrer to the evidence; or may apply to the Court to instruct the Jury to disregard such faulty counts. But, if no such step be taken, and entire damages be given, the verdict is good, and j udgment ought not to be arrested.'</p>

This was an action on the case brought by the appellant against the appellee in the County Court. The declaration contained two counts: the first a special one, stating that the plaintiff’s testator was authorised by the defendant’s father to lease out certain lands, of which he was seised in tail.

This was an appeal from the District Court of Northumberland, and the only question was, whether an issue was properly joined. It was an action on the case upon an assumpsit. Plea non-assumpsit, concluding as usual to the country, but no similiter appears in the record. Warden for the appellant contended, that the omission of the similiter was fatal, and could not be amended by an appellate court. He cited 1 Str. 641 in point.

The contesting parties in these causes are the creditors of the Richmond Dock company, and the object of the suits is to adjust their respective priorities of claim upon the property of the company. The claimants are John Enders, the Board of public works, Anthony Robinson and George C. Pickett.

This was an action on the case, brought bv the appellant against the appellee, in the County Court. The declaration was upon an assumpsit, and the general issue was pleaded. Afterwards, the plaintiff moved the Court for leave to amend, by filing a new declaration in trover, which was permitted, and to this the defendant pleaded not guilty.

This was an ejectment brought in the District Court of Northumberland, by the appellant, in which the jury found a verdict, to the following, viz: That in 1666, the Governor of Virginia, with the advice and consent of the Council of State, granted the land in question to Thomas Freshwater, who afterwards assigned the patent to Robert Sisson, who, in 1698, devised the land to his grandson, George Sisson, in fee tail.

This was an appeal from the judgment of the District Court of .Fredericksburg, affirming a judgment of the County Court of Caroline. The case was this: Robert Gaines Beverly, husband of the appellee, being in his lifetime possessed of a large real estate, made a settlement on his wife of greater value than her dower in all his lands, and died leaving her his widow and several children, who were alive at the date of the case agreed in this cause.

<p>Contracts — Presumption as to Usury. — The Court will! never presume a contract to be usurious unless the usury be proved.</p> <p>Same — Usury*—What Constitutes — Case at Bar. — Upon a mortg-ag-e for a sum of money payable in Pennsylvania currency, stipulating interest generally, if a decree be entered by consent for six per cent,, interest, it will be considered as a Pennsylvania contract, and not usurious; Aliter, if the decree was so entered in consideration of forbearance.</p>

William Swepson Davis, late of Mecklenburg county, died in the year 1813, having duly made and published his last will and testament, all the disposing part of which was in the following words : “ And as touching such worldly estate, as it has pleased Almighty God to bless me with, I do leave it in manner and form following, viz. Item, my will and desire is, that all the money that can be raised from the profits of my estate, after supporting my wife Susanna and daughter…

<p>A Writ of dower unde mbit habet cannot be maintained against a tenant for years only, but ought to be brought against a tenant of the freehold, having the inheritance, or an estate equal in duration to the life of the demandant.</p>

This was an appeal from a decree of the High Court of Chancery, reversing a decree of the County Court, in favor of the appellants, who were plaintiffs' in the suit. The bill states a marriage agreement between Thomas Applebury, father of the plaintiffs, and James Anthony, their grandfather, by which the grandfather promised to give to the said Applebury a slave named Lucy, in marriage with his daughter, the mother of the plaintiffs.

on an appeal from a decree of the Superiour Court of Chancery for the Richmond District, pronounced in May 1802, reversing a decree of the Hustings Court of the city of Richmond.

This cause, which was argued at the last Court, and being continued to be re-argued, it came on again, at the present term. It was an action on the case,, brought by the appellees in the County Court, against Barnett, Woolf oik &? Co, The declaration states, u that the defendants were indebted to the plaintiffs in the sum of 171/. 5s. 4d. sterling money of Great Britain, worth in Virginia currency, 228/. 7s. for so much advanced by the plaintiffs to Forest £s?

John Payne and Mary Payne, infants, by Mary Payne, their mother and 374 next friend, filed their bill in the'x'late High Court of Chancery, on the 1st of March, 1796, against Walter Coles, Isaac… Held: derived from his grandfather, to be completely vested in him, independent of her, and that she could not dispose of the same by will or otherwise.

This was an appeal from the judgment of the District Court of Charlottesville, rendered in April, 1807. ^he aPPe^ée brought an action of detinue against the appellant, for a negro woman: — the defendant pleaded non detinet; — and moreover a special plea in bar, “ That a pe sold the said negro woman with her two children “ to the plaintiff, who, by his deed in writing, bearing date, “ &c., did agree that the sale of the slave in the declara- “ tion mentioned should be void…

This was an appeal from the High Court of Chancery, dismissing the bill of the appellant. The case was as follows.—Mercer, being in possession of a tract of land, to a part of which Hansborough was entitled as heir to his mother, (and which had been sold to the father of Mercer, by the father of Hansborough, without the privy examination of the mother) proposed selling it to Smallwood, who hearing of the title of Hans-borough, objected thereto.

The appellant having brought an action on the case against the appellee in the County Court of Essex, a verdict and judgment were given for the defendant in August, 1801. The plaintiff appealed to the District Court of King and §>ueen, where the judgment was affirmed, and, from the judgment of affirmance the plaintiff again appealed. The declaration as amended is in assumpsit.

This was an appeal from a decree of the High Court of Chancery. At the last term, a rule was obtained by the counsel for the appellee, that the appellant should shew cause, ' why this appeal should not be dismissed, unless bond and security in a penalty sufficient to cover the decree were given. The Chancellor allowed the appeal upon the appellants giving bond in a sum merely nominal.

This was an ejectment brought upon the demise of Jacobus Vandevier the appellee, against the appellant, in the District Court of Winchester.

Marshall brought an action of debt against Overstreet and Holcombe in the District Court of Prince Edward.

<p>New Triall† — Affidavit of Jurors‡ — A new trial ought not to be granted on the affidavits of two of the Jurors, that they were influenced in their verdict by information given by one of their own body in the Jury-room.</p>

This was an appeal from a judgment of the District Court of Petersburg. Isabell, styling herself an Indian and a pauper, presented her petition to the Court (which petition was inserted in the record) praying to be permitted to prosecute her suit, in forma pauperis, for the recovery of her freedom, against Elizabeth Pegram who detained her in slavery..

<p>This was an appeal from a decree of the High Court of Chancery, and the question depended upon a clause in the will of William Aylett, the father of the appellee, wherein he devised to the appellee and his heirs, “ the plantation on which he then lwed, and all his lands in the county of King William, also his land in Drummond’s Neck, in James City County.” The testator at the time of making his will, and at his decease, was seised of an estate of inheritance, in a tract of land in the County of King William, upon a part of which he lived, the residue being in the possession of others, under leases. He was also entitled to a leasehold interest, for the term of 999 years, in another tract of land lying in the same County, but of this last he was not possessed. He commenced a suit for the recovery of it, which abated by his death. His executors reviyed the suit after his death, and recovered the land. The appellee filed his bill in the High Court of Chancery, against the executors and residuary devisees of the testator, claiming the leasehold, as well as the freehold lands. The only question was, whether the leasehold land passed under the above clause to the appellee, or was comprehended in the residuary clause in the will. The Chancellor decreed in favor of the appellee, upon his giving bond, with condition, to pay the proportion of the debts due from the testator, for which this land is liable ; and also, an account of the rents and profits thereof, received by the executors. From this decree the executors appealed.</p>

Elliott having brought a suit at law against Stanard upon a bond, Smock, the appellee, became Stanard’s appear-'anee *bail. Stanard having failed to give special bail, judgment was rendered against Smock in the County Court.

On an appeal from a decree of the Superiour Court of Chancery for the Williamsburg district.

This was an action of assumpsit, brought by Putney against the appellants, in the District Court of Williamsburg. The defendant pleaded the Act of Limitations, upon which, issue was taken.

ON an appeal from a decree of the Superior Court of Chancery for the Williamsburg District. *Daniel and twenty-three others filed their bill in the said Court, stating that they were the only slaves of a certain Miss Mary Robinson, who on the 10th of March, 1803, made and published her will in due form of law, in which is the following clause : “ After all my just debts and fu- “ neral expenses are paid, as I cannot satisfy my con- science to have my negro slaves separated…

This was a bill filed in the superior court of law and chancery for the county of Fauquier, by Samuel A. Marsteller, against the administratrix of Samuel Weaver, for the settlement of a partnership account. In 1824, Marsteller and Weaver formed a partnership for the purpose of conducting a mercantile establishment in the county of Prince William. The business was managed by Weaver, and was continued until 1826, when the partnership was dissolved.

The case was this : Eight persons, who were the defendants in error, sued out a writ, in the County Court, against Leftwitch and wife, in case—damage 300/. No declaration was filed, but the defendants below pleaded that they did not assume ; on which the parties were at issue. Afterwards, by a rule of Court, they submitted ají matters in difference between them to arbitrators, and agreed that their award should be made the judgment of the Court.

<p>A plea being received by the court though objected to by the plaintiff, he excepts to the decision, and then takes issue in fact on the plea: Held, his exception is not waived by taking issue.</p> <p>The 62d section of the act passed the 16th of April 1831, establishing the circuit superior courts, allowed the equitable defences therein provided for, in all actions at law pending in such courts at the time of pleading the same, whether such actions were originally brought in such courts, or had been transferred thereto from the former superior courts of law.</p>

This was an appeal dependingjn this court, and a motion was made by the appellees for a rule upon the appellant, to give bond and security in a further sum, for prosecuting the appeal. The following opinions, contain a full statement of the case.

This was an action of covenant, brought by Cooke, in the District Court of King and Queen, upon a warranty contained in a deed poll, dated in 1779, by which the testator, for a valuable consideration, conveyed to Cooke, a negro, and covenanted for himself and his heirs to warrant the title against all persons whatsoever.

John H. Christian and Ebenezer P. Stratton were merchants and partners doing business in the county of Nelson under the name and style of Christian Stratton. As partners they became indebted to Lewis Webb Sf Co. in the sum of 670 dollars 33 cents, for which Webb Sf Co. recovered a judgment against them, at the August term of the county court of Nelson for the year 1835, and issued thereon a ca. sa., on which they were taken and committed to jail on the 27th of October 1835.

This was an appeal from the Lynchburg chancery court. Spotswood Garland and John Whitehead, guardians of the infant children of James Loving, and Samuel Loving, and Lunsford Loving, exhibited their bill and amended bill, against the said James Loving aud his wife, and the said infant children, together with Robert Kincaid, Solomon Matthews, and Nathan Lofftus. The bills were regularly answered, and proofs taken.

This was an action of detinue for slaves brought in the District Court of Fredericksburg. On the plea of non detinet, a verdict was found for the plaintiff, and an appeal prayed to this Court, upon exceptions taken to the instruction given to the jury by the Dis- . trict Court.

Upon an appeal from a decree of the late Judge of the Superior Court of Chancery for the Richmond District, in 399 % suit brought by Nathaniel Chapman against George Chapman, sen. his uncle, and revived, on the death of the said Nathaniel, by a bill of revivor on behalf of George Chapman, jun. and John Chapman, his brothers and co-heirs.

After the decision by this court of the case of the Literary Fund v. Dawson & others, reported in 10 Leigh 147. the general assembly, on the 10th of March 1841, passed an act entitled “ an act concerning the estate of Martin Dawson deceased and for other purposes,” which is contained in the session acts of 1840-41, p. 52.

This was an appeal from the Staunton chancery court. The following is the case presented by the record : In the year 1784, Patrick Lockhart obtained patents for two tracts of land, one of 400 acres, and the other of 449 acres. The first was granted to him as assignee of John Tillery, in whose name the survey was made; and the second, in his own right.

Sylvester Welch the elder died in 1834, having first made his will, which was duly admitted to probate in the county court of Fauquier.

<p>Appeals — Who May Appeal.* — An appeal or superse-deas to a judgment ought not to be granted to any person not appearing to be interested in the matter in controversy.</p>

The case was as follows : In April 1785, Beale recovered a judgment against Willis, for whom Cooke was special bail.

On a petition of John Mayo to the County Court of Hanover, for leave to erect a water grist-mill, the Jury, on the writ of ad quod damnum, found that “it is probable that the health of the families of Eewis Turner and of William Ragland, who live near the pond, if the mill is erected, will be annoyed by the stagnation of the waters.” The County Court, “after hearing witnesses, and weighing all the circumstances,” decided that leave should not be granted to build the mill;…

Sutton brought an action against Mandeville for the use and occupation of a house in Alexandria.

James Franklin of the county of Amherst, died in the year 1813. By his will, he, among other things, devised to his daughters Nancy C. and Elizabeth H. Franklin each, an undivided moiety of his mill with its appurtenances, in the county of Amherst, called the Montpellier mills; subject to a charge of 2000 dollars in favour of his daughter Sally W. Franklin, to be raised out of the profits thereof.

THIS was a controversy about a return of premium upon two policies of insurance effected by William Hodgson, on behalf of George Frederick Stras, on a voyage w at and from Norfolk to Currapoa, with liberty of going to any other ^an¡I'm the West Indies, or any one port on the Spanish Main, and at and from theme back to Richmondthe first . policy being “ upon any kind of lawful goods and merchan-1 . 3 1 , „ , , , , , , , dises, valued at 6,000 dollars, laden or to be laden on…

This was a suit brought in the Richmond chancery court, by Henry Banks against Jacqueline B. Harvie, devisee of John Harvie deceased, John B. Harvie and Lewis Harvie, infant heirs of Edwin James Harvie deceased, by the said Jacqueline B. Harvie, their guardian, and William Brockenbrough, administrator of Edwin Harvie, deceased, and administrator de bonis non of John Harvie deceased.

This was a controversy about a return of premium upon two policies of insurance ejected by William Hodgson, on behalf of George Frederick Stras, on a voyage ■‘at and from Norfolk to Curracoa, with liberty of going to any other island in the West Indies, or any one port on the Spanish Main, and at and from thence back to Richmond;” the first policy bei”g “upon any kind of lawful goods and merchandises, valued at 6,000 dollars, 409 laden or to be laden on board *the good…

<p>Apprenticeship-* — Appeal.†—No appeal lies trom an order oí a Comity or Corporation Court ior binding out an apprentice, or for rescinding his indentures.</p> <p>Same — Writ of Certiorari. — It seems that, in such case, a wrltoE certiorari lies from the General Court, to bring up the record, and correct the proceedings.</p> <p>Same — Removal of Apprentice Out of County — Effect.— Quere. It an apprentice is removed out of the County or Corporation in which he was bound, can the Court thereof direct the overseers of their poor to send for and bind him to another master?</p> <p>Same — Same — Same. — Also, Quere. Whether an apprentice so removed to a County or Corporation, obtains legal settlement therein by remaining there twelve months during his apprenticeship ?</p>

This was an ejectment brought by Slip in the County Court of Berkeley.

THIS was an appeal from the judgment of the District Court of Richmond, reversing an order of Goochland County Court. The following were the proceedings in the County Court.

THIS was an appeal from the judgment of the District Court of Richmond, reversing an order of Goochland County Court. The following were the proceedings in the County'Court.

This was an appeal from the Staunton chancery court, where the case was decided in favor of the defendant, the present appellee. The plaintiff prayed an appeal$ which was allowed, with permission to the appellant to give bond and security within thirty days.

In this case, the plaintiff Gilliam, applied to the chancellor of the Richmond district, for an injunction, which was refused ; and an application being made to the judges of the court of appeals, it was granted by them. At a subsequent term of the court of chancery, a motion was made by the defendant to dissolve the injunction ; and it was accordingly dissolved. The plaintiff then took new evidence to support his bill; and moved the chancellor to reinstate the injunction.

Tlie only question in this case was whether the decree of the chancellor was interlocutory or final. Fretwell filed a bill of injunction in the county court of Albemarle, against Wayt and Winn and others. The -junction was granted, and afterwards dissolved. From this order of dissolution, an appeal was granted to the Staunton chancery court, where the order was affirmed. Fretwell appealed to this court.

This is an information filed by the attorney general of the Convmonwealth of Virginia to set aside certain conveyances made by George Winston, a debtor of the commonwealth, and to subject certain other property, alleged to have been the proceeds of his labour, to the satisfaction of the claim of the commonwealth against him. In 1813, Mary W. the daughter of George Winston, married Arnold W. Ricks of the county of Southampton.

The case was in substance as follows: Bowman purchased of Hayes and Bumgardner, a tract of land lying on the South river, near Waynesborough, on which there was a valuable mill-seat. The deed from Hayes and Bumgardner to Bowman, conveys the land to the « middle of the river.” This tract had formerly belonged to Estill, being part of a larger tract lying on both sides of the river.

<p>In trespass against two, if one be found guilty, and the other be acquitted, a new trial cannot be awarded on the motion of the convicted defendant.</p> <p>Although, in general, the Inferior Court need not state the facts on which they ground their opinion in granting a new trial, yet where they grant it against an established rule of practice, they ought to disclose the circumstances which induced them to depart from the rule.</p> <p>It is error to grant a new trial except upon the terms of paying the costs.</p>

Lund Hopkins of the County of Powhatan, on the first of March, 1799, filed his bill in the late High Court of Chancery, against Robert Yancey and Richard Paris; setting forth that “Joseph Hopkins, father of the plaintiff, was in his life-time seised in fee of a tract of land in the County of Louisa, containing by estimation 400 acres, and, being so seised, departed this life in the year 1780, having first made his last will, by virtue of which the plaintiff became entitled…

The defendants in error brought an action of debt upon a bond, with a collateral condition, against Herbert Claiborne, William Claiborne, and others, in the District Court. The appellant, a Deputy Sheriff, arrested the defendant, Herbert Claiborne, and made return thereof, signing his name as Deputy Sheriff, but failed to return a bond for appearance.

<p>An executor, against whom judgments have been obtained at law, may be relieved in a court of equity, upon his shewing that assets sufficient to pay all the debts of the estate, came to his hands, but that a large portion of them had been since recovered by a paramount title.</p> <p>Quere, whether an executor ought not to be relieved in such a case, even if he had paid debts of inferior dignity, it appearing that he was promptly and bona fide paying off the debts of the estate, under the belief that he had assets sufficient to discharge every claim.</p> <p>When a decree is made as to one of several defendants, whose interests are not at all connected with each other, with a direction for the payment of costs as to that defendant, such decree is final as to him, although the cause may be still pending in the court, as to the rest.</p>

<p>The parties agreed to indorse upon the written contract a memorandum permitting the debtor to pay in money, or in property, at a valuation to be made by two honest men to be chosen by the parties. If the creditor refuse to make the indorsement, Chancery will relieve, and will consider the indorsement as made. .</p> <p>If, in this case, the creditor refuse to join in nominating a valuer, the debtor might plead the special matter at Law, »r the Court of Chancery might name valuers, if the parties should fail to do so by a certain day.</p> <p>Where a man is to pay money, or to deliver property, at a valuation, he is not bound to carry the property to the creditor, but the latter should receive it at the debtor’s house.</p>

Robert Pollock & Co. brought an action of debt in the District Court of Charlottesville against William Walker and Clifton Garland., late merchants and partners, under the firm of Walker Ss? Garland, on a bill penal, in the following words: “ On demand I promise to pay Robert Pol- “ lock £s?

<p>Robert Pollock & Co. brought an action of debt in the District Court of Charlottesville against William Walker and Clifton Garland., late merchants and partners, under the firm of Walker Ss? Garland, on a bill penal, in the following words: “ On demand I promise to pay Robert Pol- “ lock £s? Co. two hundred and ten pounds, seventeen shil- “ lings and seven pence Virginia currency, for the true “ payment whereof I bind myself my heirs, executors and “ assigns in the penal sum of four hundred and twenty-one “ pounds, fifteen shillings and two pence, like money. “ Witness my hand and seal this second day of Septem- “ her, 1802. # # * &</p> <p>William Walker, Seal. *</p> <p>foi* # $ $</p> <p>Walker & Garland.”</p> <p>Attest fames P. Garland.</p> <p>The writ 'was returned by the sheriff with this endorse" ment, “ Executed, and Samuel Shelton bail;” but the clerk certified at the foot of the record that no hall-bond was returned with the writ.</p> <p>The declaration was against William Walker and Clifton Garland, late merchants and partners, under the firm of Walker is? Garland-; and charged that William Walker for Walker is? Garland bound himself &c. (according- to the terms of the bill penal) and that neither the said JValker Garland nor either of them had paid, &c.'</p> <p>At rules in the clerk’s office in April 1804, the suit abated as to the defendant Walker by his death:, and the record proceeds to state that, “ the sheriff having returned that he had duly executed the writ” a common order was entered against the defendant Garland and Samuel Shelton the bail for his appearance, which was confirmed at the rules in May following, "and a final judgment entered.</p> <p>Samuel Shelton, the appearance bail, obtained a superse-deas to this judgment, from one of the Judges of this court; — alledging, in, his petition, “that-he never was bail “ in the suit; that he never entered into a bail-bond; nor “ ever, in the most distant manner, authorized the sheriff “ to consider him as bail.”—</p> <p>contended, 1, that the bill penal appearing on the record to have been signed by William Walker “ for Walker is? Garland,” and not by both the partners, they could not both be bound; and cited Gwyllim’s Edition of Bacon?s Abridgment, (Title Merchants and Merchandize) to show that one partner cannot bind another by signing a bond, (a) He observed that this case presented the doctrine in a very strong point of view; for the suit had abated as to Walker, (who signed the obligation,) and judgment had been obtained against Garland, (who had never signed it,) and his bail.</p> <p>2. Judgment was not properly entered against Shelton as bail, no bail-bond, nor copy thereof, having been returned.</p> <p>The Revised Code (1 vol. p. Z8, ch. 66, sect. 26.) requires a copy of the bail-bond to be returned by the sheriff, together with the writ. — The motive of the Legislature was to guard against fraud; — that a record of the bail’s responsibility should be filed: — otherwise the sheriff might, by collusion with the plaintiff, make a man bail who was not. — In this case, a man who was ignorant that he had ever been considered as bail, has had a judgment entered against him".</p> <p>Where an office-judgment is rendered, the bail-bond is an essential part of the record, and ought to be inserted by the clerk. — This judgment is, there!ore, erroneous, because it does not legally appear that Shelton ever was bail.</p> <p>It may be said, that this objection is dehors the record: but surely it is not. — -When we apply for a supersedeas, we have a right to insist on the production of every thing upon which the clerk founded his judgment.</p> <p>The judges of the District Court could not have corrected the error; it being too late, after the judgment entered in the office had been confirmed, and a term had elapsed ; (b) the District Court having power to correct such ■preceding vacation only.(c) — Relief-must, tained from this court alone.</p> <p>The first objection is, that one partner cannot make himself liable for another. But, in this country, the course of trade is very different. The custom here is, that the planter sells his tobacco to-the merchant; the merchant is his banker; and the mercantile company is responsible. The planter wishes a bondfrom the company. Where only one of the company resides here, and the rest on the other side of the Atlantick, one only can sign the bond. The course of trade, therefore, is, that one partner may bind the rest. If the law of England was positive against it, the law would be different here, for the case of Rose v. Murchie, 2 Call 409, proves that the course of trade alters the rules of law.</p> <p>I do not say that one partner can, for land bought by him, bind the rest. Why i — Because such a purchase is not in the course of trade. But, if he buys a hogshead of tobacco, the case is otherwise. If a partner gives a bond not in the course of trade, the other partners may object to it; but be who makes the objection must support it.</p> <p>The second question is concerning the responsibility of Shelton as bail.</p> <p>On this point it is to be observed, that the return of the bail-bond is not the foundation of the judgment. His responsibility accrued from his becoming bail, and the sheriff’s return that he was so; and his signing the bond was sufficient, whether the sheriff returned it or not. The sheriff’s returning a copy is not for the benefit of the bail, but of the plaintiff‘s that he may inspect it, and see whether the bond was legally taken, so as to bind the bail. The plaintiff lias his choice, either to proceed against the bail without the copy, or against the sheriff for failing to return it.</p> <p>Take the record, without the clerlüs certificate, and all is regular. If,- therefore, the certificate contradicts the record, it is not admissible; for Shelton has not a fight to aver anything contrary to it, and the clerk cannot be permitted by his certificate to impeach his own record.</p> <p>But, the certificate is that, “no bail-bond was returned;” not that no copy of the bail-bond was returned.- A copy-, therefore, might have been returned; and every inference in favour of a judgment is to be made by the Court of Error.</p> <p>If, however, Shelton is an injured man, he must look to the sheriff for redre’ss, and sue him for his false return; but, I suppose, the fact is, that the sheriff, at this moment, has the bond in his pocket.</p> <p>Nicholas, in reply.-</p> <p>Mr. Call contends, that the course of trade will control the principles of law; but the case of Rose v. Murchie does not go that length. Chitty, on Bills of Exchange, shows that, in England, the usage of merchants could not put promissory notes on the same footing with" inland bills of exchange, until the statute of Anne was passed.</p> <p>I doubt, however, whether there has been any such course of trade. The planters have been generally indebted to the British merchants; not e contra. But, at any rate, the reason as to foreign merchants does not apply in this case; for both the obligors resided in the county of Albemarle.</p> <p>The bond was only a personal undertaking by Walker, for Walker Garland; not a bond of Walker Garland. Neither the bond nor the declaration states them to have bound themselves by means of Walker one of the partners; but he binds himself to pay. The burthen of proof lies on the plaintiff to show that the bond was given in consequence of a partnership transaction, and in the course of trade; it being, prima facie, a personal undertaking.</p> <p>As to the 2d point — This record ought not to be considered as in ordinary cases. The proceedings having not been in court, but altogether in the clerlüs office, all the documents which he acted upon ought to have been inserted in the-record.</p> <p>I do not say the return of the copy of the bail-bond binds the bail; but I say, his giving the bond binds him, and the clerk has no evidence, but the copy’s being returned, which can justify him in saying there is an original.</p> <p>If the sheriff does not return a copy of the bail-bond, he is to be considered as the bail himself, and may defend the suit.(d) The judgment was, of course, erroneous, because the clerk ought to have entered it against the defendant ard sheriff; not against the defendant and bail; and such is the constant practice in such cases.</p>

The only question in this case was, whether in the course of administering the assets of the decedent, who, was a lawyer, a debt due from him to his client, for money collected upon a judgment, but of which collection no written acknowledgment appeared, was to be considered as standing on the footing of an open account only, or as being of equal dignity with a judgment- or specialty.

<p>Chancery Practice — Sealed Contract Set Aside as Abandoned.* — A contract under seal decreed, at the instance of one of the parties, to be set aside, as having- been vacated and abandoned: the other (at whose request, and for whose accommodation, it was expressly made) having for a Jong time neglected to carry it into effect, and shewn by particular acts (though without any acknowledgment under seal) that he considered it as being no longer in force.</p>

Dunlop & Co. alleged, that they had sustained heavy loss, by the official negligence or fault, either of Keith, clerk of the county court of Frederick, or of Stephenson, late sheriff of Berkeley. Keith, the clerk, had never given any official bond for the faithful discharge of the duties of his office; and he was now residing in the town of Alexandria in the district of Columbia.

John Peyton in his lifetime was the deputy clerk of the county court of Frederick, under a contract with James Keith the clerk, by which he undertook to do all the business of the office, for one third of the fees, and to pay over the other two thirds to Keith. He died in 1804, intestate, leaving a widow, Susan Peyton, and eight children, the most of whom were infants.

A fieri facias, sued out of the circuit court of Stafford, by the appellees against George M. Cooke, having been levied on his property, he together with John Cooke, his surety, gave bond for the forthcoming of the property at the day of sale, in the usual form; which was forfeited.

This was an appeal from a decree of the High Court of Chancery, affirming a decree of the County Court, which dismissed the bill of the appellant Southall.

M’Kenny’s executors having obtained judgment and award of execution, in the county court of Spottsylvania, on three several forfeited forthcoming bonds, against Joseph Waller the principal, and Curtis Waller the surety, therein bound, sued out thereupon three writs of fieri facias, dated in April 1822, and returnable to the June term following. These executions were put into the hands of the sheriff of the county.

James Stinson senior, late of Shenandoah county, died in the year 1830, having duly made and published his last will and testament, bearing… Held: that according to the true construction of the will, Anna Roy and her children took as joint purchasers the lands devised in the sixth clause, and that the plaintiff Mary Day was entitled to one ninth part of the rents and profits thereof since the death of the testator; and accordingly directed a comtnissioner to ascertain the…

This was an appeal from the Fredericksburg chancery court. William Carr, in his life-time, obtained a judgment against Yelverton Peyton, in August, 1794. Both parties having died, the executor of the plaintiff sued out a scire facias against the administrator of the defendant, to revive the said judgment. At the trial of the scire facias, the plaintiff suffered a non-suit.

:.A' writ of fieri facias,'sueA out of the circuit court of Stafford, dated the 23d October 1823, and returnable the second Monday in January following, in the name of Wallack, but indorsed “ for the benefit of Elwes,” against Simms and Flournoy, for debt, interest and costs, for which Wallack had recovered judgment against them, was delivered to Beatty deputy of Tolson late sheriff of Stafford, who made the following return upon it—“ By virtue of this execution, I levied,…

Upon an appeal from a decree of the Superior Court of Chancery for the Williamsburg District. Held: indeed, in the English books: but there they acknowledge the estoppel arising from the executor’s failing to plead to be odious even at law, but not applying to bind a Court of Equity.

This was an appeal from the Richmond chancery court. William Miller and James B. Ferguson, executors of Thomas Miller deceased, filed a bill against Rice and Seabrook, Galt and Johnson, John Forbes, and Isaac Curd and others, setting forth the following case : The testator died in 1819, leaving a will, by which he directed that his executors should have full power to sell all his real and personal estate for the payment of his just debts, except bis plantations called…

This was an action of covenant, brought by the appellee, against the appellants, in the District Court of Dumfries. The case was as follows : John Alexander, by his will, devised to the appellee, his son, in fee simple, a tract of land lying in and adjoining to the town of Alexandria, part whereof w>as laid off into lots.

<p>A fi. fa. is sued out by M. & M. on judgment recovered by them: they indorse on the writ, that it is for benefit of H.: the sheriff levies it, and takes forthcoming bond payable to H: Held, the bond is naught.</p>

By deed of marriage settlement, between Francis Pledge and Christian Hughes, made before the marriage, and bearing date the 18th July 1820,… Held: that the case stated in Hughes’s bill was not proper for relief in equity, because if he had right, he had a complete remedy at law; founding this opinion against the jurisdiction of the court, upon his understanding of the authority of the case of Bowyer v. Creigh, 3 Rand. 25. And, therefore, he dismissed that bill with costs.

Upon an appeal from a decree of the Superior Court of Chancery for the Staunton District, dismissing a bill upon which an injunction had been granted, by the Judge of the late High Court of Chancery, on the 22d of April, 1796, to stay proceedngs on a judgment obtained in March, 1794, in the County Court of Botetourt, on behalf of Henry Bowyer, Clerk, against Samuel Todd, Sheriff of that County, for 541. 12s. damages, and 7 dollars and 43 cents, costs of suit.

Appeal by Sophia Crawford and Alden B. Spooner from a final decree of the circuit superior court of law and chancery for the town of Lynchburg, pronounced on the 18th of January 1S32, in a suit in chancery, in which John Af ’Daniel was plaintiff’, and the said Sophia Crawford and Alden B. Spooner wnth others were defendants: by which decree a perpetual injunction was awarded against all further proceedings on a judgment obtained by Cranford and Spooner, as assignees of…

This was an appeal from the superior court of King William county, where John Richards brought a suit against Newman Brockenbrough, as surviving obligor of Beale and Brockenbrough. The action was brought on an arbitration bond, executed by the said Beale and Brockenbrough to the said Richards.

Grayson and wife brought assumpsit against Moncure, in the circuit court of Stafford for money had and received by him to the use of the wife when sole. Moncure pleaded the general issue. Held: that the law upon the case agreed was for the defendant, and gave judgment for him; from which Grayson and wife appealed to this court.

<p>a. Equitable Title — Effect on Mortgagee without Notice.* — A mortgagee without notice, shall be protected against a prior equitable title: if the person having such title, either encouraged him to take the mortgage, or, knowing of his intention to take it, stood by, and made no obj ection.</p>

Stephen Johnson was employed by Janet Murrell as an agent to purchase for her a negro girl. He accordingly purchased one of a certain Thomas Pritchett; but, before delivered her to Mrs. Murrell, he .was warned by Benjamin Pritchett not to part with her, as he, the said Benjamin claimed her as his property. He thereupon refused to ^e^ver said giflt0 Mrs. Murrell, until he should be indemnified for so doing; in consequence whereof an indemnifying bond was executed by Mrs.

<p>Chancery Practice — Injunction to Judgment — Account before Commissioners — Items Not Allowed. — Where inj unction Is granted to a 3 udgment, and an account between the parties directed, the commissioner ought not to give the plaintiff at law-credit for claims not exhibited to the j ury, nor mentioned in the answer, and which are prior in date to the commencement of the suit.</p> <p>Sheriffs — Agreement to Indulge for Taxes — Recovery Thereon.* — A sheriff who indulged a man for his taxes, in consideration of which the latter agreed to indemnify him by paying all damages which the commonwealth might recover of him in consequence of his failing in due time to pay the said taxes into "the treasury, was allowed to recover the amount of such taxes, with lawful interest, from the times when respectively payable.</p> <p>Same — Same—Same.—Part of those taxes being payable in certificates, the value of the certificates, at those respective times, was decided to be the rate at which they ought to be allowed; and not the value at the time of making the allowance.</p> <p>Chancery Practice — One Asking Equity Hust Do Equity. —A person coming into a Court of equity to impeach a judgment at law, must, on his part, do what equity requires.</p>

<p>In a bill for relief against usury, plaintiff charges usury exacted at rate of two and a half or three per cent, per month; defendant, in his answer, admits he exacted usury, but says he does not remember the rate; and there is no proof to. ascertain the rate: Held, that in this state of case, the court should consider the rate of usury two and a half per cent, per month.</p>

Upon an appeal from a judgment of the District Court of Prince Edward, rendered for the defendant, the 4th April, 1805, in an action of ejectment on behalf of Charles Clay against Elizabeth Ransome.

<p>1. A will wholly in the handwriting of the testator commenced— “ I, J. W. of the county of H. and state of Va., calling to mind the uncertainty of human life, and being desirous to dispose of all such estate as it hath pleased God to bless me with, I give and bequeath the same in manner following.” He then proceeded to dispose of the whole of his estate, real and personal, and concluded thus—“ In witness whereof, I have hereunto set my hand, this day of 1841.</p> <p>“ Signed and acknowledged in presence of .”</p> <p>The blank for the date was not filled up, and the testator’s name was not subscribed to the paper, nor were there any attesting witnesses. Held, The will not well executed.</p> <p>2. The finality of the testamentary intent must be ascertained from the face of the paper, and extrinsic evidence is not admissible, either to prove or disprove it.</p> <p>3. The signing a will, to be a sufficient signing under the statute, must be such as, upon the face, and from the frame of the instrument, appears to have been intended to give it authenticity. It must appear that the name written was regarded as a signature, and that the instrument was complete without farther signature, and the paper itself must shew this. Mien and Baldwin, J.</p>

At a Court held for Lunenburg County, the 12th of July, 1804, a paper was offered for probate as containing the nuncupative will of John Dunman, deceased.

This suit was originally brought in the county court of Caroline, and afterwards removed, by certiorari, io the Fredericksburg chancery court. The administrators of Isaac Kidd, filed their hill to in-join a judgment obtained against them by Benjamin Alexander, on a bond executed by their intestate, as security to one John Segar.

This was a bill exhibited by Todd and wife against Avery the administrator of Moore, in the snperiour court of chancery of Richmond, setting forth, That Mrs. Todd was the only child of J. T. Tee, who died in 1795. That in the same year, administration of Lee’s estate was granted to Moore, by the county court of Prince George.

This was a suit originally brought in the late High Court of Chancery, by Charles.

This was an action of debt, brought by Skipwith against Green, in the superior court of Mecklenburg. A conditional judgment was entered against Green and his appearance bail, which was confirmed on the 7th April, at the rules. On the 8th day of April following, judgment was rendered by the court, the defendant Green obtained a supersedeas from a judge of the court of appeals.

In April 1820, Joseph Fauntleroy recovered a personal decree against Samuel Templeman administrator of Peter Northern deceased, in the superior court of chancery for the Fredericksburg district, for 1815 dollars 68 cents, with interest on 1398 dollars 47 cents from the 25th of April 1816, on account of a debt due to Fauntleroy from Northern in his lifetime; from which decree Templeman prayed and obtained an appeal to the court of appeals, upon giving bond with security to…

This was a special action on the case, brought by the appellant against the appellees, in the County Court of Westmoreland.

This was an -appeal from the chancery court of Green-brier, which reversed a decree of the county court of Greenbrier sitting in chancery. A suit was brought in the county court, by Samuel Brown against John Matthews and others, which was decided in favor of the said Brown. On petition to the chancellor, an appeal was allowed on the usual terms of giving bond, &c. A bond was accordingly given ; but it was in fact a certiorari bond, instead of an appeal bond.

This was an ejectment brought in the superior court of Henry county, by Cole against Hairston.

A fieri facias, dated November 18th 1826, and returnable the second Monday in January following, was sued out by Leitch & Co. against Anderson, upon a judgment of the county court of Buclcingham, and delivered to the sheriff of the county; who returned it with the following indorsement and return thereon, viz. “Came to hand November 20. 1826”—“January 6th 1827, levied on two negro men Edmund and Spencer, the property of Anderson; forthcoming bond. taken and forfeited.” The…

Sarah Pemberton made oath befoi’e a magistrate of Powhatan county, that Thomas Howard was the father of a bastard child, of which she had been delivered and, upon the application of one of the overseers of the poor, who stated that the said child would become chargeable upon the county, the magistrate bound the said Howard in a recognizance to appear at the next county court of Powhatan, and abide by, and perform the orders of such court, as should be made in the premises.

John Campbell died, in 1819, having first made his last will and testament, dated July 5. 1818, whereby he devised and bequeathed as follows: “ I appoint James Shipherd, sadler of this said city my sole executor; no security to be required of him without so much as will justify all my just debts. The residue I confide in him to dispose of as I shall hereafter direct.

A deed of trust was executed by William and Francis Sutton to trustees, to secure the payment of three notes to a certain Anderson Barrett. The first note was paid ; the second transferred by endorsement to Nathaniel Bag-land, without any assignment to him, of the deed of trust; the third note was endorsed to Robert and Temple Gwathtney, who took an assignment of the deed^of trust, for their security.

On the 9th of August 1841, the county court of Campbell, on the application (ore tenus) of Washington Hunter, “ setting forth that he is the owner of the land on both sides of Archer's creek in the county of Camp-hell, where he proposes to erect a water grist and saw mill and dam,” made an order that a writ of ad quod damnum be awarded him, returnable to the next term of the court, the jury to meet on the 19th day of the said month of August.

Mr. Leigh having on a former day of this term asked permission to qualify as counsel at this bar, it was then resolved by the whole Court, that in addition to the oaths of qualification heretofore usual in such cases, he must take the oath prescribed in the 3d section of the late act to suppress duelling: which he said he would consider of, and for the time declined.

This was an appeal from the District Court of Northumberland, and the only question was, whether an issue was properly joined. It was an action on the case, upon an assumpsit. Plea, non-assumpsit, con.” eluding as usual to the country, but no similiter apPears upon the record.

THIS was an appeal from a judgment of the General Court. Several points were made in argument; but the only circumstance on which the decision of this Court was founded, was that the plea having been “plene administra- “ vit the judgment was entered against the appellant, as executor of Wishart, for the whole amount of the debt, which was 1,368l. 2s.; although the Jury found that the assets in his hands amounted to the sum of 482l. 13s. only.

■This suit was brought on the chancery side of the County Court of Rockingham by David Jones, the appellant, as attorney in fact for the Philadelphia Baptist Association, for the purpose of recovering of the appellees, the executors of Silas Hart, a legacy bequeathed, as he ah-léged, by their testator to the said Association.

THIS suit was brought on the Chancery side of the County court of Rockingham, by David Jones the appellant, as attorney in fact for the Philadelphia Baptist Association, the purpose of recovering of the appellees, the executors of Silas Hart, a legacy bequeathed, as he alleged, *by their testator to the said Association.

Debt on bond, for 6000 dollars, by Woodlief against Cocke executor of Wyatt, in the circuit court of Prince George.

This was an action of debt, brought by the appellee, in the District Court of Williamsburg, upon a forthcoming bond, the condition of which, upon oyer, appeared to be in common form, except that it did not recite the amount of the debt due by the execution— the pleas were, First, conditions performed.

On the 31st of May 1823, Lemuel Turner recovered a judgment in the county court of Nelson against Richard H. Burks and William B. Jacobs, for 1400 dollars and costs, to be discharged by the payment of 700 dollars with interest from the 27th of November 1821 till paid, and the costs; subject to credits for payments made at different times amounting to 537 dollars 17 cents. Pending the action, William Lee Harris had become special bail for the defendants.

Gibson brought assumpsit against Homer in the hustings court of Richmond. And, on the capias ad respondendum, which was dated the 5th June 1822, and returnable to the ensuing August term, an alderman of the city indorsed an order requiring appearance bail, in the following words: “June 6th 1822.

<p>The Court will never presume a contract to be usurious un~ less .the usury be proved.</p> <p>Ppon a mortgage for a sum of money payable in Pennsylvania currency, stipulating interest generally, if a decree be entered by consent for six per cent, interest, it will be considered as a Pennsylvania contract, and not usurious; Miter, if the decree was so entered in consideration of forbearance.</p>

<p>Wills — Testamentary Capacity-* — Will Wholly Written by Testator — Presumption Therefrom. † — The circumstance that a writing, exhibited for probate, as a last will and testament, was wholly written by the testator himself, is prima facie evidence that he was in his senses, and able to make a will, at the time of writing the same; so that the onus probandi, to repel that presumption, lies on those who wish to impugn it.</p> <p>Same — Same†—Same—Same—Rebuttal of Presumption —Testator Addicted to Use of Opium. — In such a case, proof that the testator's intellects were greatly Impaired by the use of opium and ardent spirits, and that in consequence thereof, he was frequently incapable of business, is not sniiicient to repel the presumption without proof that such was his condition at the time when the writing was executed.</p> <p>Same* — Grammatical Inaccuracies — Effect. — Grammatical inaccuracies, want of knowledge of points of law, or omission of part of a testator’s property, are not circumstances sufficient to vitiate a will.</p>

<p>Tobacco Inspectors — Allowance,—Inspectors of tobacco are entitled to an allowance of dfty dollars for each hand, over two, kept by virtue of an order of Court, as labourers at their warehouses.</p> <p>Note. — In this case a motion was made, at a subsequent day of the term, to permit the clerk to grant a certificate of the judgment of the Court before its adjournment, in order that it might be entered as the judgment of the General Court, which was then sitting: otherwise, an execution could not issue in behalf of the Commonwealth, until after the June term of the General Court: the law, which directs the clerk of the Court of Appeals to transmit copies of judgments and decrees, to the clerks of District Courts, and authorises executions thereon in vacation, not extending to the General Court. (See Rev. Code, vol. 1, c. 249, s. 6.) But the motion was denied. — Note in Original Edition.</p>

Debt on bond, by the executor of Raines against the administrator of Sturdivant, in the circuit court of Prince George. Pleas, payment and fully administered; on which issues were made up.

Debt on bond, by Raines against Philips executor of Philips, in tlxe circuit court of Prince George. Philips pleaded that the bond was not the deed of Ills testator.

The hustings court of the city of Williamsburg, in August 1816, appointed Jackson to collect all public taxes imposed by law on the city; and took a bond from him with Browne as his surely, in the penalty of 30,000 dollars, payable to Wilson Cary Nicholas, then governor, and his successors, with condition that Jackson should well and truly collect, account for and pay the taxes &c. Jackson failed to pay the amount of taxes, by him collected, into the treasury, and the…

This was an action of covenant, brought in the County Court of Hanover, by Betsy Austin, administratrix of Chapman Austin, deceased, against Martha Whitlock, executrix, and John A. Richardson, executor, of David Whitlock, deceased.

James U. Blair made his last will and testament in these words: “It is my will and desire, that all my just debts be paid—After that I wish that Miss Lucy Collins have 1000 dollars, provided my estate will admit of it. I also leave and bequeath to her one tea caddy, one bed and such clothes to the bed as she may think proper to take.

<p>Assault and Battery — Joint Action against Several— Effect of Judgment,* — In a joint action of assault and battery against twelve defendants, the process having been served on two only, and they having appeared and pleaded not guilty, the Jury found them guilty in general terms and assessed damages against them jointly. The plaintiff, in consequence of an order of the Court, released a part of the damages to those defendants, (saying nothing of tHe others,) and took judgment for the others. After this, he could not proceed to obtain additional damages against any of the other defendants. But if he had not taken judgment, he might have had damages assessed, on other issues or writs of inquiry, against the other defendants, and finally taken judgment against any one of them pro melioribus damnis.</p> <p>Same — Same—Samet—Quere†—would the case have ■been otherwise, i f the first verdict had only apportioned, npon the then defendants, their anota of the damages?</p> <p>Same- Same-Assessment of Damages Severally— Effect.‡ — If the Jury, In a joint action of assault and battery, assess the damages severally against the several defendants, (the cases of them all being before the same Jury,) it is error, unless the plaintiff enters a nolle prosequi against all but one, and takes judgment ior the damages assessed against that one, in -which case the error is cured.</p>

During the late war between the United States and Great Britain, certain slaves, the property of Kenner W. Cralle, late of Northumberland, eloped to and were carried away by the enemy, and never returned or were restored to the owner. Cralle died in 1825, leaving his wife Mary him surviving, but without any child or issue.

<p>This was an action of covenant brought by Archibald Armstrong against Richard and Archibald Armstrong, in the hustings court of Richmond. The declaration set forth a covenant between the plaintiff and the defendants, for submitting all matters in dispute between them, to O. Manson and F. A. Mayo, whose award the parties covenanted to submit to and abide by; the actual arbitration of the matters in dispute ; an award by the arbitrators, that the defendants should pay the plaintiff 127 dollars, subject to a deduction of 16 dollars, and half the costs of a suit, then pending in the name of Richard Armstrong; and notice to the defendants of the award: and then the declaration alleged as a breach of the covenant, that the defendants had not paid the plaintiff the sum so awarded to him.</p> <p>The defendants took oyer of the covenant, the substantial part whereof was thus: “ Whereas a certain dispute has taken place between the parties, in relation to killing a parcel of hogs, the parties, being desirous of settling the matter of difference between them, have chosen O. M. and F. A. M. to settle, arbitrate and determine all difference between them, and to fix the amount to be paid by either party; and in case they may not agree, then they shall call in a third person as umpire; and their award shall be binding between the parties.” And then the defendants pleaded, that the arbitrators “ made no award of and concerning the premises in the covenant mentioned and to them referred.”</p> <p>The plaintiff in his replication set forth the award in hcec verba, and averred that the defendants had not paid fhe sum of money awarded to him. The award was in these words : “ On settlement of accounts between Archibald Armstrong & Co. as per bond fee.” (describing the instrument of submission to arbitration) “ it appears, that A. Armstrong junior” (one of the defendants) “ is indebted to A. Armstrong senior, 127 dollars; that is to say, allowing A. A. junior all the lard taken or made by the said firm—and whereas Richard Armstrong” (the other defendant) “ one of the parties to the said bond” (the submission) “ has sued A. Armstrong senior, on his own account, now pending in the mayor’s court of Richmond, we hereby award, that 16 /dollars, and one half the costs shall be deducted from the balance due A. A. senior above stated—and the balance shall be paid over to A. A. senior, by the above parties— and the said R. A. shall withdraw his suit above mentioned.” This award was signed by the two arbitrators; and then signed and sealed by all the parties to the submission, and to this act of the parties both the arbitrators were attesting witnesses; but the fact of the parties having signed the award, was not specifically pleaded or relied on in the replication.</p> <p>To this replication the defendants demurred generally. The court overruled the demurrer. And then the defendants were allowed to put in the plea of covenants performed, on which an issue was made up.</p> <p>At the trial, the defendants objected to the admission of the arbitration bond in evidence, on the ground of variance between the instrument itself and the covenant described in the declaration. But the court overruled the objection; and the defendant excepted.</p> <p>There was a verdict and judgment for the plaintiff for 109 dollars with interest &c. The defendant appealed to the circuit court of Henrico ; which held that the replication to the first plea of No award, was not sufficient in law to maintain the action; and therefore reversed the judgment. And then the plaintiff appealed to this court.</p>

This was an appeal from adecree of the High Court of Chancery. At the last term, a rule was obtained by the counsel for the appellee, that the appellant should shew cause, why this appeal should not be dismissed, unless bond and security, in a penalty sufficient to cover the decree, were given. The Chancellor allowed the appeal, upon the appellants giving bond in a sum merely nominal.

Upon an appeal from the Superior Court of Chancery for the Staunton District.

This was an ejectment brought upon the demise , of Jacobus Vandevier, the appellee, against the appellant, in the District Court of Winchester.

This was a bill in the county court of Orange, in chancery, exhibited by Martin against the administrators of Lindsay and Sale—setting forth, That on the 6th October 1818, he borrowed of Lindsay, in his lifetime, 320 dollars, upon usury at the rate of twelve per cent, per annum; and conveyed a tract of land to Sale, in trust to secure the payment to Lindsay of 358 dollars and 40 cents (being the sum borrowed with one year’s interest at twelve per cent.) on the 6th October…

A bill was presented to the Judge of the Superior Court of Chancery for the Staunton District, by Cocke, Crawford £s? Held: and not the • residence of the plaintiff or defendant, furnished the rule of jurisdiction in granting injunctions.

<p>On the 21st of March 1807, a deed was made between Robert Ration junior of the county of Fairfax of the one part, and James Sanderson and William Stewart junior of the town of Alexandria of the other part, whereby Patton, for a nominal consideration, (to wit, ten dollars) conveyed unto Sanderson and Stewart a tract of land in Fairfax county containing 128 acres, sixteen slaves, a chariot and harness, seven horses, all the cows, sheep and farming utensils belonging to him, the liquors of every kind in his cellar, and all his household furniture and kitchen utensils.</p> <p>On the same day another deed was made, between Sanderson and Stewart of the one part, and Ann Clifton Patton, wife of Robert Patton junior, of the other part, whereby Sanderson and Stewart, for a like nominal consideration, conveyed the same property unto the said Ami Clifton Patton during her life, and after her death to the several children of the said Ann Clifton Patton by the said Robert Patton junior her husband.</p> <p>The first mentioned deed was attested by George Youngs, R. J. Taylor, Edmund J. Lee and William Moss ; the other was attested by the three first named witnesses. They were both proved in the court of Fair-fax county, the first by Taylor on the 21st of April 1807, by Moss on the 18th of May 1807, and by Youngs on the 21st of September 1807; the other by Taylor on the 21st of April 1807, and by Youngs and Lee on the 21st of September 1807. On the day last mentioned, both were admitted to record.</p> <p>A deed bearing date the 10th of April 1811, purporting to be from Patton and wife to William Herbert junior, and to convey the same property, was executed by Patton and signed by his wife, and also attested by four witnesses; but she was never privily examined in respect thereto, and it was never recorded. This deed, after describing the property, states expressly that it is the same that was “ conveyed by James Sanderson and William Stewart jr. to the said Ann Clifton wife of the said Robert Patton jr. by deed bearing date the 21st of March 1807 and duly recorded in the county court of Fairfax.'’'’ A reconveyance of the property from Herbert to Patton himself, bearing date the 7th of May 1811, was admitted to record in the court of Fairfax county the 15th of July 1811, upon Herbert's acknowledgment. The reconveyance, after describing the property, stated in terms that it was the same conveyed by Patton and wife to Herbert.</p> <p>On the 27th of April 1811, a deed was made between Robert Patton- junior and Ann Clifton his wife, of the one part, the president, directors and" company of the bank of Alexandria, of the second part, and William Herbert jr. of the third part, whereby,—after reciting that Patton did, by deed bearing date the 29th of March 1811, convey unto Herbert 2000 dollars worth of stock in the Farmers bank of Alexandria, together with other property, for the purpose of securing the payment of any sum or sums of money which the president and directors of the bank of Alexandria might have or should thereafter agree to loan him, and after reciting it to be the wish of Patton to convey the premises therein after mentioned in lieu of the said stock and as an additional security for the president and directors of the said bank,—it was witnessed that Patton and wife conveyed to Herbert the same tract of 128 acres of land, being the tract on which Patton then lived, called Spring bank, and also two other tracts of land, one of them conveyed to Patton by Hepburn in April 1.809, and the other conveyed to him by Scott and others in June 1810, upon trust and with power to Herbert to sell the said premises, if Patton should at any time thereafter, when required by the president and directors of the bank of Alexandria, fail to pay them whatever sum or sums of money he might owe them by note or otherwise, with any discount or interest that might have become due thereon. This deed was attested by R. J. Taylor, N. J. Herbert and Thomas Swann, all three of whom were likewise witnesses to the reconveyance of the 7th of May 1811. There was a commission to examine mrs. Patton privily and take her acknowledgment of the deed of the 27th April 1811. And on the 18th of November 1811, the deed being proved in the court of Fairfax county as to Patton and Herbert by three witnesses, was admitted to record.</p> <p>On the 29th of September 1824, a deed was made between Robert Patton junior and Ann Clifton his wife, of the first part, William Herbert of the second part, Colin Auld and Robert J. Taylor of the third part, and the president, directors and company of the bank of Alexandria, of the fourth part, wherein it was recited that Patton stood indebted to the president, directors and company of the bank of Alexandria in the sum of 8920 dollars 62 cents, with interest on 8864 dollars 74 cents from the first of April 1823, and on the residue from the date of the deed (September the 29th 1824), being the amount of sundry loans of money and discounts theretofore made by the bank for his use and accommodation, for the security of which, in part, the said Patton had theretofore conveyed in trust to the said Herbert a part of the lands therein after described. It was farther recited, that the bank had agreed to forbear and give further day of payment for the said debt to the said Patton for the term of 3 years; and if, at or before the expiration of the said term, Patton or his representatives should pay to the bank or its assigns one full third part of the said debt with interest thereon, then the bank or its assigns would allow the further term of two years, making five years from the date; and if, at the end of the said five years, Patton or his representatives should pay one half of the balance, the bank would allow the further term of two years, or seven years from the date, for the payment of the residue : and that Patton, on his part, agreed to give farther and more effectual security for the payment of the said debt to the bank. Whereupon it was witnessed that Patton and wife and Herbert (for such interest as he had therein) conveyed to Auld and Taylor the three tracts of land mentioned in the deed of the 27th of April 1811, and also another tract of land, in trust to permit Patton and wife and their representatives to retain possession and to receive the rents and profits thereof without account, according to their respective interests therein at the time of the execution of this deed, until default should be made in any one of the payments; and if there should be a failure to make payment of the anc^ interest in the manner before mentioned, in trust that Auld and Taylor should sell the premises (or so much thereof as might be necessary to satisfy the whole amount of the debt and interest remaining unpaid, with all reasonable costs of sale) in the manner set forth in the deed. No sale was to be made of the Spring bank tract of land until the other two tracts should have been first sold and the proceeds thereof ascertained to be insufficient. And the deed was in trust that if Patton should pay off the whole amount of the debt, charges of insurance, and interest; or if the same should be raised, with expenses of sale, from the sale of the other tracts ; or if the same should in part be so raised, and the said Ann Clifton Patton, or any one of her children, or any one on his or their behalf, should pay to the bank the balance which should be due, then the parties of the third part should thenceforth hold the said tract of land called Spring bank to the sole and separate use of the said Ann Clifton for her life, free from the power and control of her husband, and after her death to the use of such child or children of the said Robert and Ann, then born or thereafter to be born, and for such interests and estates, as the said Ann, by any instrument of writing under her hand, attested by two or more credible witnesses, or by her last will and testament or letter of appointment attested as aforesaid, notwithstanding her coverture, might direct and appoint; and in default of such appointment, to the use of the right heirs of the said Ann according to the statutes regulating descents. The deed made provision for keeping the buildings on the Spring bank tract insured; declared that the sums advanced by the bank for premiums of insurance should be considered secured by the deed, with interest from “ the times of such advancements; and provided that if the same, with interest, should not be refunded to the bank within 60 days from the advancement, all claim to further credit should cease, and the trust be executed on the request of the bank. Two justices of the peace of Fairfax county took the acknowledgment of Patton, and also the privy examination and acknowledgment of his wife; and the deed with their certificates was admitted to record in the office of Fairfax county court on the 25th of October 1824.</p> <p>On the 22d of March 1825, the president, directors and company of the bank of Alexandria commenced a suit-in the superior court of chancery formerly holden for the Fredericksburg district.</p> <p>Their bill, which was filed at June rules 1825, set forth the deeds herein before mentioned; described Patton as being, at the time of executing the deeds of March 1807, “very much involved, and indebted to many persons to a considerable amount;” and mentioned the deed of the 27thof April 1811 as being “in trust to secure a debt of 2000 dollars to the bank of Alexandria, and to secure any further loans that the bank might make to Robert Patton junior.” It avers that the debt of 8864 dollars 74 cents, secured by the deed of the 29th of September 1824, is still due to the bank with interest &c. and states that the plaintiffs are advised that the tract of land called Spring bank, and the other lands conveyed by that deed, are liable for the said debt, but their claim to have the tract called Spring bank subjected to the payment of their debt is resisted, upon the ground that it had been previously conveyed by Sanderson and Stewart, by the deed of the 21st of March 1807, to Ann Clifton Patton for life, and after her death to her children, one of whom only was in esse at the date of the deed, to wit, Eleanor Patton, who afterwards intermarried with George Mason. The ° ■ complainants contend that the deed from Patton to San^erson anc^ Stewart, being a voluntary deed without consideration, and made with the sole view to a settlemeni; upon the wife and family of the said Patton, and that too at a time when he was largely indebted to many persons, must, as to' the complainants, be considered fraudulent, null and void; that the deed from Sanderson and Stewart to mrs. Patton and her children is null and void, because no such settlement as was contemplated by the parties could be made without the interposition of a trustee, and as a settlement after marriage, without any contract precedent to the marriage, it cannot be supported against any creditor, either prior or subsequent; that at all events, whatever might be its effects as to the subsequent creditors, it is void in law as to any purchaser, either prior or subsequent; and that as to the complainants, who claim both as creditors and purchasers, both deeds are fraudulent and utterly null and void. Robert Patton and Ann C. his wife, Mary S. Patton, Robert Patton, George Patton, Rosalie W. Patton, Sophia Patton, Elisha C. Patton, Benjamin R. Patton, and George Mason and Eleanor his wife, formerly Eleanor Patton, are made defendants. Thé bill prays, that Robert Patton may answer and say whether the deed from himself to Sanderson and Stewart was not voluntary and without consideration, and with a view to have the property settled upon his wife and children, and whether, at the date of the said deed, he was not largely indebted to many persons f that the said deed, and the deed from Sanderson and Stewart to mrs. Patton and her children, may, as to the complainants, who are both creditors and purchasers, be decreed to be null and void, and that the land called Spring bank may be made or left subject to the just and legal liens and incumbrances, which the complainants have upon it.</p> <p>At May rules 1826, the defendants Robert Patton and Ann C. his wife filed their answer. In this they admit that the facts stated in the bill, so far as they relate to the deeds for the tract of land called Spring bank, are true, and that the deed from Patton to Sanderson and Stewart was voluntary, and without other consideration than what appears on the face of it, except as follows—</p> <p>They state that Patton, in 1804, contracted an engagement for marriage with Ann C. Reeder (now Ann C. Patton), and being about to embark for Europe, made a will which he left with his brother James Patton, since deceased, wherein he devised the Spring bank land, which he had recently purchased, to the said Ann G. Reeder, together with 5000 dollars, and sundry slaves and household furniture; and not having received the conveyance of the said land, he desired his said brother to cause it to be made to the said Ann C. R.eeder, which however he failed to do. That after his return from Europe, to wit, in 1805, he was married, and the conveyance of Spring bank was subsequently made to himself. That while in England, he became acquainted with the house of Thomas Pinkerton, then a contractor with the british government for the supply of flour, bread, peas and beans in the british West India islands, and entered into an engagement with the said Pinkerton to forward such supplies monthly from the United States to the West Indies, to meet the contract of the said Pinkerton: in the profits of which engagement, he gave his brother James Patton a large share. That soon afterwards Pinkerton failed, and he (Robert Patton) again visited England, and made a similar arrangement with the firm of Ingles, Ellico Co. which latter business was conducted by himself alone, and was continued until 1809, when that house also failed, leaving him to take up bills of exchange to a large amount, as he had done to a considerable extent in the failure of Pinkerton. The said defendant Robert Patton states, that during the greater portion of the period occupied by these transactions, he believed his circumstances to be good and prosperous, and it was during that period that the deeds of March were made; but he admits that when those deeds were made, he did owe sundry debts, some of them of considerable amount, and among them a debt to John Laird of Georgetown, D. C. amounting to 678 pounds 11 shillings and 9 pence sterling, with interest from the 31st of December 1806. He states that he is under the impression that a part of the sum obtained from the complainants was paid to Laird, in part of his debt; and adds, “ It is with grief and mortification this defendant must own that to this moment he remains indebted to the said John Laird a part of that debt.”</p> <p>At June rules 1826 an answer was filed for the other defendants (except Mason and wife) by guardian ad litem. The guardian states in the answer, that he has no doubt the claim of the complainants for 8864 dollars 75 cents with interest, on account of moneys advanced and loaned by them, is a just and fair claim ; and that he has understood that the said Robert Patton junior, at the time the deed to Sanderson and Stewart was executed, was indebted to John Laird in a considerable sum of money, and perhaps to other persons also. Both the deeds of March 1807, he says, “ appear to be very vaguely and inartificially drawn, and to have a very precarious effect.” . Whether the interest vested in the children is such a one as a court of. chancery will hold valid against creditors and purchasers, he is not advised ; but he states his belief that the said Robert Patton has it in his power to substitute property of equal value for that sought by the complainants to be subjected to the payment of their claim.</p> <p>At October rules 1826, Mason and wife filed their answer. They state, that personally they know nothing of the facts : that they have always been informed and believe that the deed to Sanderson and Stewart was a fair and Iona fide deed, and not intended to defeat or injure any creditors whatever: that they do not know whether Robert Patton junior was indebted at the time, but they have been informed and believe that his debts at that time were not considerable, and have all been long since paid. They admit that Eleanor Ann was the only child then in esse.</p> <p>All the answers were signed and sworn to; that of Patton and wife by each of them; that for the infant defendants by Nathaniel S. Wise, who was then their guardian ad litem; and that of Mason and wife by each of them.</p> <p>On the 24th of April 1827, the suit abated as to the defendant Robert Patton by his death. Whereupon, for reasons appearing to the court, the order appointing Wise guardian ad litem was set aside, and Ann C. Patton was appointed in his stead : and on the motion of the defendants Ann C. Patton and Eleanor Ann Mason, respectively, by counsel, leave was given to the said Ann C. Patton to answer de novo for herself and the infant defendants, and to the defendant Eleanor Mason to file a separate answer.</p> <p>At March rules 1828, answers were filed. The answer of Ami C. Patton for herself, and of the infant defendants by her as their guardian states, that the conveyance to Sanderson and Stewart was made in accordance with a long cherished wish on the part of Robert Patton junior to provide for his wife and children a security against the vicissitudes of fortune, by setting apart for them a small portion of his property : and it mentioned the will made by Robert Patton junior on the eve of embarking for Europe, and the instructions given by him to his brother in relation to the conveyance of the Spring ba,nk tract of land, in like manner as they are mentioned in the former answer. It was his intention, she said, at the time of making the will, that she should complete the improvements at Spring banlc, and reside there; and that property, and the improvements^ then making, were understood among their families and friends to be settled upon her. The answer further states, that at the time of the deeds of March 1807, Patton was not at all involved; that he was in the possession of much real property besides the Spring banlc estate, and that he had the command of much money, ground rents &c. solely his own; that he was at that time engaged in prosperous mercantile enterprise, and concerned in shares of many vessels, besides having other considerable resources. The respondents aver that it was a conviction honestly entertained by him, that he could make provision for his wife and children, to the extent of the property comprised in the said deeds, without the slightest injustice or hazard of loss to his then creditors. They admit that he was at that time indebted for some shop and mechanics’ accounts contracted after the commencement of the year 1807, which were paid (as \yas usual then and for many years after) when presented at thg close of the year, and that he also owed a debt to John.Laird, part of which, amounting with interest to about 1200 dollars, still remains unpaid. Every debt which he owed at that time, with the exception of that to Laird, they aver has been paid. Why that was not paid they cannot state, but presume it was because Laird did not want the money. It could not be, they say, from the incompetency of the faf'Robert Patton jr. to discharge the same, if Laird BacFrequired and pressed it. They mention that in the bf 1826, Humphrey Pealce as agent for the bank, persuasión, and by threatening an immediate sale the other lots at the then reduced prices of land, import£u?ed-"and at length induced the said Robert Patton fmmr.Co answer, or to allow him to draw an answer, to the complainants’ bill, and to state that he owed sundry debts besides the debt to Laird, which statement they say was without foundation, except.as just mentioned in relation to the shop and mechanics’ accounts. They deny that any part of the money received from the bank was ever applied to pay Laird; that debt having, as they allege, been reduced from other sources. They state that the transactions of the said Robert Patton junior with the bank did not commence until January 1809, and that he did not receive any accommodation on his own paper for a considerable time after; and the credit given him was upon his own responsibility, without contemplating any claim or charge upon the Spring bank estate. The deeds of March 1807 were never intended to be kept secret; the attorney of the bank was one of the subscribing witnesses to the same, and they were well known to the friends and acquaintances of the said Robert Patton junior in the town of Alexandria (where he carried on his business) some of whom were directors of the bank. And the respondents insist that both law and justice condemn such a claim as is made here by a subsequent creditor or purchaser, especially when the credit is given and the purchase made with a full knowledge of the voluntary conveyance, as they are informed was the case.</p> <p>The answer of Eleanor Ann Mason states, that she was an infant at the time the deeds of March 1807 were made by her father; but she declares her belief that they were bona fide and upon just and good consideration, and were not made, as alleged in the bill, to defraud his creditors, or any other persons. that her father was then possessed of a lar,~ " J personal estate ; that if he were at all inde to a very small amount compared with the ac of his estate; and that all the debts he then has been informed and believes, have been si She calls for proof of the allegation that he was time very much involved and indebted. She charges that the debts claimed to be due to the complainants were contracted long after the execution of those deeds, and that at the time they were contracted the complainants had full knowledge of the existence of the said deeds, and of the interests and estates created by the same.</p> <p>The deposition of John Laird was taken the 12th of March 1828. It is very brief, consisting of two questions by the plaintiffs, and his answers. Being asked, first, whether he was acquainted with the business and affairs of the late Robert Pattonf he answers, “Not at all.” And then this question being propounded to him, “ Was he not largely indebted to you about the year 1807, at and before that period ?” his answer is, “ He owed me in 1806, and several years afterwards, 678 pounds 11 shillings and 9 pence sterling money.”</p> <p>At October rules 1828, the death of the defendant Ann C. Patton was suggested on the record.</p> <p>Depositions were taken on behalf of the surviving defendants in March 1829.</p> <p>The deposition of Peter R. Beverley was in these terms: “ From the year 1809 to 1812, I was intimate with the late Robert Patton junior, and often looked over his books, and from my knowledge of his circumstances then, believe he was worth, after the payment of his debts (which were then trifling), from 60 to 70 thousand dollars. From 1812 to 1816, his circumstances were good and his credit unshaken; his debts inconsiderable. In 1816 and 1817,1 had extensive transactions with the said Robert Patton junior, and we jointly loaded two vessels to St. Domingo. His credit was then goodi but his fortune much reduced by the failure of Pinkerton and losses on shipments and transactions. From 1817 to 1820, I knew him to be punctual in heavy transactions.”</p> <p>James Sanderson, in answer to the first question propounded to him, deposed, that during the period therein mentioned, to wit, from September 1805 to April 1807, he was intimately acquainted with Robert Patton junior; that his circumstances were good, and generally considered so; that he was in possession of much real property, besides ground rents, was concerned in shares of several vessels, and had command of a considerable sum in cash. In answer to a second question, he deposed, that from the year 1807 until many years after, the said Patton was in good credit. In 1816, deponent sold him bills on England, upon a credit, for upwards of 8000 dollars, upon the sole notes and responsibility of him the said R. Patton junior; and they were duly paid. The third question was, Whether the said Patton owed any debts previous to the year 1807, and to what amount? To this he answered, that previous to the year 1807 he understood the said Patton owed a debt to John Laird, which he understood was about 2000 dollars. To another question, he made this answer: “ In the spring of the year before mr. Patton died, I was consulted by him, stating he had been importuned by the bank of Alexandria, the plaintiffs, to make an answer to a bill (that they had dictated) that he was indebted to persons in a considerable amount previous to March 1807, and upon such an answer they would give him longer indulgence. I told him, if he did make such an answer, and I was ever called upon in a court of justice, I should most certainly contradict him ; that I knew his circumstances at the time, and well recollected our conversation when he executed a deed to one Stewart and myself for the estáte of Spring ba.nlc, and that he only owed the debt due to mr. Laird, as before stated. He was in expectation, by getting indulgence, to be enabled to pay off the debt due to the bank of Alexandria from some other resources. I never understood, until after his death, that he had made the answer required by the said bank of Alexandria.”</p> <p>Richard Veitch, in answer to the first question propounded to him, deposed, that during the period therein mentioned, to wit, from September 1805 to April 1807, he had many transactions in business with the said Bobert Patton junior; that he was in possession of a large , , , . . . property, real and personal; that his circumstances anc^ cre<^h were by the deponent considered very good, and he believes were generally so considered. In answer to the second question asked him, he deposed, that from the year 1807 until many years after, the said Patton was in good credit, and in the year 1815 deponent took his notes for a considerable amount, payable at different periods, which were regularly paid. In answer to the third question he said, he had no knowledge of the said Patton's owing any debts previous to the year 1807.</p> <p>On the 16 th of April 1830, John Stanard, marshal of the court, was appointed guardian of the infant defendants in the place of the said Ann C. Patton, who had died.</p> <p>In September 1830 and August 1831, depositions were taken on behalf of the plaintiffs, and some documents exhibited therewith. But it is unnecessary to state in detail the evidence so introduced by the plaintiffs. It was, “ for the most part, of a loose, indirect and unsatisfactory description.” And though it “tended somewhat to shew that the grantor (Robert Patton junior), from the nature of his engagements and connexions in business, had reason to apprehend a disastrous turn in his affairs,” yet it was deemed by the court of appeals, as well as the court of chancery, “too vague and inconclusive to justify the imputation of fraud.”</p> <p>Under the judicial act of April 16. 1831, (Sess. Acts 1830-31, p. 73. ch. 11. § 97.) the cause was transferred to the circuit court of Spotsylvania.</p> <p>On the 8th of September 1831, it came on before that court to be heard upon its merits, and the court, on consideration thereof, decreed that the bill of the plaintiffs be dismissed, and that they pay to the defendants their costs.</p> <p>From this decree an appeal was allowed.</p> <p>Pending this appeal, the charter of the bank of Alexandria expired. By an act of congress of the 25th of February 1836, the charter was extended, continued and limited to the fourth day of March 1839. Sess. Acts 1835-6, p. 16. And by an act of the 5th of July 1838, the charter was further extended to the 4th of March 1841. Sess. Acts 1837-8, p. 97.</p> <p>In February 1842, the counsel for the appellees, alleging that the corporation had become extinct, moved for an order directing the abatement of the appeal. This motion was argued before a full court, by Patton and Harrison in its support, and by C. and G. N. Johnson against it.</p>

This was a special action on the case in the Dumfries District Court, by William Tebbs, and Victoria his wife, against Bernard Hooe, sen. late Sheriff of Prince William County.

Elliott having brought a suit at Law against Stanard, upon a bond, Smock, the appellee, became Stanard's appearance bail. Stanard having f, iled to give special bail, judgment was rendered against Smock in the County Court.

<p>Statute of Frauds — Application—Realty*—Case at Bar. —The statute to prevent frauds and perjuries applies to an agreement between a purchaser of land, and a third person, that such third person should be admitted as a partner in the purchase; the proof of such agreement being only parol evidence of subseauent declarations and acknowledgments by the parties.</p>

<p>An officer of the state navy during the war of the revolution, who was taken prisoner in April 1781, and remained prisoner of war unexchanged till end of war, entitled to half pay for life, under act of May session 1779. Officers of state navy entitled to half pay for life, not to be allowed interest on the same.</p> <p>Officers of state navy not entitled to the commutation of five years full pay with interest thereon, in lieu of half pay for life.</p>

Benjamin Borden, the elder, by his last will, dated the 3d of April, 1742, and admitted to record the 9th of December, 1743, gave to five of his daughters (of whom Lydia, who afterwards married Jacob Peck, was one) five thousand acres of land, “all of good quality;” (being part of his lands on James River, without specifying the situation or boundaries;) “that is, one thousand acres of good land, a piece, to every one of the said five daughters, to them and their heirs and…

<p>Wills — Emancipated Slaves — Liability for Testator’s Debts* — Case at Bar. — A te.statrlx emancipated ber slaves by her will, and. directed that a, certain tract of land should be sold tor the payment of her debts, and that certain monies due her should be applied, when collected, to the same object. The land was sold for ready money by her administrator with the will annexed after advertising the time and place (without specifying the terms) of sale for ten days only, and purchased by himself. before any judgment was obtained against her estate. The slaves were afterwards sold under an execution. On a bill brought by certain of her slaves claiming the benefit of her will, and suggesting fraud in the management of her estate, it was decreed that the lands be resold, and an account taken, and, if there be not funds sufficient to pay the debt for which they were sold, that they be sold for a term of years to satisfy it.</p>

By the act of assembly of May session 1779, ch. 6. (10 Hen. stat. at large, p. 25.) it was among other things enacted, that “ all general officers of the army, being citizens of this commonwealth, and all field officers, captains and subalterns commanding or who shall command, in the battalions raised for the immediate defence of this state, or for the defence of the U. States, and all chaplains, physicians, surgeons and surgeons’ mates, appointed to the said battalions, or…

<p>1. An interlocutory decree is made in a cause, which affects the interest of a person not regularly a party. This person then files his bill against the plaintiff in the first suit, stating his case and asking that the execution of the decree may be injoined. The plaintiff in the first suit files his answer in the second, but the plaintiff in the second suit, is not made a party in the first, nor does he file an answer, but the pleadings in the two suits present the ground of claim and defence on the part of both, and the two causes come on to be heard together, and a decree is made settling the rights of the parties. On appeal to this court—Held, That the bill in the second cause will be considered as serving the double purpose of an answer and cross bill in the first, and the court will proceed to consider and decide the cause upon its merits.</p> <p>2. The books of a partnership being evidence in a controversy between partners and those claiming under them, an account purporting to be a copy from the books, exhibited with the answer of the executor of one of the partners, and not objected to, will be considered in this court as evidence.</p>

This was an appeal granted by a Judge of this Court, under the act passed January 27, 1810, (a) from an order of the Superior Court of Chancery for the Richmond District, dissolving an injunction, which John Dangerfield had obtained to stay proceedings on a judgment confessed by him, at the suit of Thomas R. Rootes, administrator of John Baylor, jun. deceased, on a bond to the said Baylor, in his life-time.

<p>Ejectment — Abatement.†—An ejectment does not abate by the death of the lessor of the plaintiff.</p>

In the month of May, 1793, John Mayo obtained an injunction from the County Court of Henrico, to stay proceedings on a judgment rendered against him in favour of Knowles Giles, assignee of Eortunatus Sydnor; setting forth in his bill, that in the year • — — a certain Erancis Gaddy, then of the city of Richmond, had an account against the complainant for blacksmith’s work; that he the complainant was told at several times by Eortunatus Sydnor that Gaddy was indebted to him,…

<p>Chancery Practice — Answer — Effect as Evidence.*— The answer of the defendant positively denying' a fact charged in the bill ought not to be outweighed by testimony not eoually positive on the other side.</p> <p>Public Certificate — Renewal—Parties. † — A person los-, mg a public certificate bearing interest which never was transferred to him by actual assign-' ments from the original holder, ought not, by a •suit in Chancery, to obtain its renewal from the Commonwealth, without making the original holder a party to the suit.</p>

On the trial of an action of ejectment, i» the District Court of King and Queen, (on behalf of John Den, lessee of Richard Wyatt, against the widow and heirs of John Sadler, deceased,) the lessor of the plaintiff proved that he was the eldest son of Richard Wyatt, who died in the year 1768, seised in fee of the land in the declaration mentioned; that, being so seised, the said Richard Wyatt, the elder, had made and published his last will; in which were the following…

The facts of this case are reported in the separate action against Beirne, brought to charge him as several endorser of the bill upon which this suit is founded. Vide Bank of U. S. v. Beirne, ante, p. 234. The declaration contained thirteen counts, ten special, and three general money counts.

The appellees, by their next friend, fded their bill in chancery in the County Court of Prince George, against Benjamin, George, Robert, Samuel, Ann, Mary and Agnes Cocke, as coheirs of Pleasant Cocke deceased, and against Edward Bland as administrator with the will annexed of Edward Bland, deceased, and Edward Wyatt; setting forth, that the said Pleasant Cocke after his qualification in the year 1780, as guardian to the appellees and their sister Alary, orphans of Hubbard…

<p>Chancery Practice- Failure to Serve Process on Some Defendants — Effect. A bill was filed on behalf of certain infants against the heirs of their guardian who died intestate, the sheriff to whom his estate was committed, (no administrator having qualified,) his surviving' security in the bond given for the performance of his duty as guardian, and the adm'r of the other security, as co-defendants. No process having been served on apart of the heirs, nor on the surviving security, a decree a.gainst the administrator of the deceased security was held to be erroneous, because there were not proper parties convented before the Court: and the cause was remanded for further proceedings.</p> <p>Seme — Same—Accounts—Reference to Commissionesvf †--A Court of Chancers7 ought not to decide upon accounts mutually existing and controverted between the parties, without referring such accounts to a commissioner or commissioners to report thereupon.</p>

In March 1820, an action of debt was brought in the county court of Amherst, in the name of James P. Preston governor of the commonwealth of Virginia, for the benefit of John Lynch jr. against David S. Garland late sheriff of Amherst county, John London, William Turner and John Coleman, on a bond executed the 15th of September 1817, to Preston as governor of the commonwealth, by Garland and the other obligors as his sureties, with a condition (as prescribed by the last form…

<p>Issue Out of Chancery* — Concurring Verdicts Certified against by Trial Judges — New Trial — Discretionary. †— After two concurring verdicts for the same party, on an issue directed by the chancellor to be tried at common law, he is not bound to direct a new trial, notwithstanding both verdicts were in opposition to the opinions of the Judges before whom the issues were tried, and a verdict had originally been rendered in favour of the other party.</p>

This was a suit in Chancery in the County Court of Southampton, by the widow and children of Robert Johnson the younger, against Edmund Johnson, grandson, and heir at law of Robert Johnson the elder, and Joseph and Lemuel Jones, purchasers from the said Edmund, to recover of them a tract of land devised to Robert Johnson the younger, by the will of the said Robert the elder, bearing date September 4, 1772, and admitted to record the 12th of the same month.

<p>It should have been stated in the report of Edmunds v. Digges, ante, p. 359, that Cabell, P. dissented from the judgment of the court in that case. The ground of his dissent, is stated in his opinion given below.</p>

IN this case, the Court requested that counsel would argue the preliminary question whether an appeal could be allowed by this Court from an order of a Superior Court of Chancery, rejecting a motion to allow a bill of review, where the right of property had been decided, and a writ of habere facias possessionem awarded, but an account remained to be taken, and the report of the commissioners had not come in; in short, whether an appeal would be allowed, till the decree was,…

<p>In an indictment for selling ardent spirits to slaves, it is not necessary to state the names of the owners of the slaves to whom the liquor was sold.</p>

IN an action of debt in the County Court of Wythe, on a Sheriff’s bond, in the name of James Wood., (who sued for the benefit of William Ingledove,') the declaration, in the beginning thereof, complained of Jemes Newell, Stephen Saunders and Henry Hamilton, in custody, &c. of a plea that they render unto the plaintiff thirty thousand dollars, which they owe and unjustly detain ; for that, whereas the said defendants, and a certain Andrew Thompson, William Drope and John Hay,…

This was an indictment in the superior court of law and chancery for the county of Mason, against Polly Doss, for adultery and fornication. The defendant pleaded not guilty, and, on the trial, tendered a demurrer to the evidence, and asked the court to compel the attorney for the Commonwealth to join therein, hut the court, being of opinion that there was no authority in the court to compel the attorney for the Commonwealth to join in the demurrer, overruled the motion.

<p>i. Deed — Setting Aside — Grantor of Weak Understanding.ǁ — Under what circumstances, a deed obtained from a man of weak understanding (though not an idiot or lunatic) may be set aside in equity.</p> <p>3. Chancery Practice — Fraud Presumed from What.— Fraud it seems, may be presumed in equity from strong circumstances; such as gross inadequacy of consideration, breach of trust and confidence, undue influence exerted (especially over a young and weak person by a near relation), over diligénce and assiduity in guarding against objections, and the like.</p> <p>3. Hire of Slaves — Interest.—Interest on the hire of slaves disallowed as in Dilliard v. Tomlinson, &c. ante, p. 183.</p> <p>4. Fraud — Effect on Bona Fide Purchaser¶ — It seems, that a bona fide purchaser, without notice of fraud, having received a deed from two persons, (one of whom fraudulently induced the other to join therein,) is not responsible in equity; but the loss ought to fall on the fraudulent vendor. (1) But quaere, if the estate of the fraudulent vendor he not sufficient to make good the loss?</p> <p>5. Same-Same. — In snch case, the circumstance that the person defrauded was of weak understanding, hut not an idiot or lunatic, is not sufficient to affect the right of the bona Me purchaser.</p>

This was an appeal from a judgment rendered by the District Court of Brunswick, in favour of the appellee, against the appellants on an ejectment for 618 acres ofland, lying in Brunswick county, on the following case, agreed by the counsel of the parties : — On the 5th day of April, 1784 James Fisher, by his last will and testament which is duly made and recorded in the County Court of Brunswick, devised, among other things, as follows: “ I give and bequeath to my loving son…

<p>This was an appeal from a judgment rendered by the District Court of Brunswick, in favour of the appellee, against the appellants on an ejectment for 618 acres ofland, lying in Brunswick county, on the following case, agreed by the counsel of the parties : — On the 5th day of April, 1784 James Fisher, by his last will and testament which is duly made and recorded in the County Court of Brunswick, devised, among other things, as follows: “ I give and bequeath to my loving son James Fisher the land below my Spring Branch, and the land I bought of Charles Gordon, and the land I bought of Mason Bishop, with the following negroes, namely : Ball, Sail, and all their children and their increase; with one feather bed and furniture; with half my mill to him and his heirs forever; and if my son James Fisher should die without a latv ful heir, my will and desire is, that my grandson James Fisher, the son of Jonathan Fisher, may have the above mentioned lands and the half of the negroes, to him and his heirs forever: and the other half of the negroes, my will and desire is, that my .grandson Benjamin Fisher, the son of William Fisher, may have to him and his heirs forever.”</p> <p>The testator died the same year, and James Fisher the son entered into the lands, and held them till he died in the year 1800, intestate, and without any child, and without ever having been married; whereupon the grandson James Fisher the son of Jonathan Fisher (and the present appellee) to whom the lands were devised over in remainder, brought this ejectment against the appellants, who are the heirs at law of James Fisher the first devisee. The District Court gave judgment in favour of the remainder-man James Fisher the grandson, and an appeal was taken by the heirs at lato to this court.</p> <p>considered this case as fully decided by the case of Hill v. Burrow, in this court, (a) The question presented by the clause of the will of the testator in this case, is the same which arose in Hill v. Burrow. The devises are the same in substance, and almost the same in words:' in that case, the limitation over was “ in case my son Thomas Hill dies without a lawful heir;” in this, the limitation depends upon these words, “ and if my son James Fisher should die without a lawful “ heir f the very words used by the testator, on the construction of whose will, the case of Hill v. Burrow turned.</p> <p>Stare decisis is a rule which I hold in as much respect as any man in the commonwealth ; but there are cases in which it may be necessary to depart from it s</p> <p>1st. When there have been decisions plainly contravening foriner decisions, the court will not carry them further than imperious necessity demands.</p> <p>2dly. While the courts, in deciding a case, will respect principles, they will pare down, by degrees, the authority of precedents till they are brought to the standard of common sense. As a proof of this, we may. refer to cases decided in the time of Lord Cocke and Levinz, when the limitation of a chattel was not allowed; those limitations are now common.</p> <p>3dly. When there is a political change in a country .Vhich would render the original rule inconvenient, the courts will not consider themselves bound by it.</p> <p>If this case had arisen on a will made before the revolution, I should give up the subject as a desperate one. If it had been a decision on a case arising since the revolution, and a case of land only, after the case of Tate v. Tally, I should approach it with great trepidation.(b)</p> <p>If the court will look at the will, they will find that the limitation of the lands is coupled with the bequest of the slaves and personal estate, and under the same disposing words. They will find that the same verb (have) governs three several nouns, lands, slaves, and personal estate. It is impossible to suppose that the testator meant to dispose of his real and personal estate differently. If it can be proven that this would be a good executory devise, as it relates to the slaves, then it would follow that the testator meant the same thing as to the land.</p> <p>Here I shall be opposed by the case so often resorted to of Forth v. Chapmun(c) and I admit that Lord Chancellor Parker said he would construe a will one way as to realty, and another as. to the personalty. But he expressly says that he did it to effectuate the general intention of the testator. In the present case, the application of the rule will destroy that intention. If we attend to the statement of the case of Forth v. Chapman, we shall find that, if the Chancellor had not given that interpretation, the children could not have taken the land. Now, although the courts will be astute to carry into effect the testator’s intent, yet surely they will not to destroy that intent. In the case of Forth v. Chapman an estate for life only was given in the first instance. The same principle which was adopted in that case is recognized in Sheffield v. Lord Orrery.(d)</p> <p>If there were nothing in this case but what appears in Tate v. Tally, I should surrender the cause; but what I contend for, is, that, there is personalty involved in the same devise with the realty, which circumstance ought to give effect to it as an executory devise, and, as the courts in England will construe devises as to realty and personalty differently in order to effectuate the intention of the testator, for the same reason ’the courts of this country will not construe wills so as to defeat the intention.</p> <p>[Judge Roane observed, that the same doctrine had been contended for in Tate v. Tally; and Judge Tucker declared that he could not distinguish this case from Hill v. Burrow, and Tate v. Tally.)</p> <p>Mr. Taylor perceiving that the opinion of the court was against him, observed, that he would not press the argument further.</p>

<p>Supersedeas — To Stay Proceedings on Judgment of County Court. — A supersedeas awarded by this Court was decided to have been improvidently granted, because it went to stay proceedings on the judgment of a County Court, and not of any of the Superior Courts of Law or Eciuity.</p>

<p>Assumpsit of Testator — Statute of Limitations — As-sumpsit of Executor as Bar Thereto.* — On tbe trial of an issue, on the assumpsit of the testator within five years, an assumpsit of his executor cannot be given in evidence, to prevent the operation of the act of limitations. (1)</p> <p>Evidence — Sufficiency—Instruction by Court. † — The sufficiency of the evidence ought tobe left wholly to the consideration of the Jury: and, in this case. the County Court having instructed the Jury, that, “from the whole testimony before them the demand of the plaintiils was not barred by the act of limitations,” it was determined that the said opinion of the County Court was erroneous.</p>

THE principal questions decided in this cause were, 1st. Whether in an action upon the case against an executor charging an assumpsit of the testator, and on the plea of non-assumpsit by the testator within five years, the repeated promises of the executor, within five years, to pay the debt could be given in evidence so as to take the case out of the statute of limitations; and 2dly. How far a Court may instruct the Jury as to the sufficiency of evidence.

Henry D. Pegram was presented, in the circuit court of Henrico, in July 1825, for keeping and exhibiting a faro bank table. This offence was, at the time of the presentment, punishable by imprisonment in the common jail, an Pegram was not arrested until December 1829.

An information was filed against Garland H. Mitchell, in the hustings court of Richmond, for selling, by wholesale, goods, wares and merchandizes, of domestic growth, without licence, contrary to the statute of February 26. 1823, (sess. acts of 1822-3. ch. 3.) which provides, that if any person shall sell, by wholesale or retail, goods, wares and merchandize, of foreign or domestic growth or manufacture, without licence &c. he shall forfeit and pay 100 dollars.

The Merchants bank of Baltimore being a creditor of the bank of the United States (incorporated by Pennsylvania), and experiencing great difficulty in the recovery of their debt, and the indebted corporation, though without this commonwealth, having effects here, a suit in equity was commenced in the superior court of chancery for the Richmond circuit, against the said corporation as debtors out of this commonwealth, and against others within the same, having in their hands…

Samuel Walker was indicted in the circuit court of Henrico, for the larceny of a watch, of the value of 50 dollars, and of a gold chain and key, the property of Elizabeth Bolton. At the trial, he excepted to an opinion of the court given against him, and being convicted, he now applied for a writ of error.

The sole question raised in this case was, whether the conduct of the parties in the original transaction, which gave rise to the present suit, was such, as to bring them within the operation of the maxim, in pari delicto potior es* con^^° defendentis.

Richard Rawlings was indicted in the circuit court of Orange, for an assault on one Robert Jones. He pleaded not guilty. The jury found him guilty, and assessed a fine against him of 50 dollars.

Thomas Jones made an application to the county court of Stafford, for a road to be opened in that county. The county court appointed viewers, who duly made their report ; whereupon summonses, in the usual form, were directed to the owners of the land through which it was proposed that the road should pass, who appeared, and prayed writs of ad quod damnum; which were awarded, and inquisitions regularly taken thereon, and returned to court.

On an appeal from a decree of the Superior Court of Chancery for the Richmond District pronounced in September 1802, by which the bill of the appellant was dismissed. This was originally an action at law instituted in the District Court of Prince Edward by the appellee against the appellant, and was brought into the Court of Chancery by an injunction to the judgment of the said District Court.

<p>Equitable Relief* — New Trial Refused by Court of Law. —After a verdict for the plaintiff in an action sounding-in damages, and a refusal by the Court of Law to grant a new trial, a Court of Kquity ought cautiously to interpose.</p>

Benjamin Bartlett, being brought before a justice' of the peace of the county of Harrison, for a breach of the peace, entered into a recognizance, with George I. Williams his surety, with condition that Bartlett should appear at the next circuit court of the county, to do and receive what should be then and there injoined him by the said court, and, in the meantime, to keep the peace and be of good behaviour towards the commonwealth and all its citizens, and especially…

Alfred R. Davenport was indicted in the circuit court of Henrico, for stealing a free boy of colour. The indictment charged, that the said Davenport did feloniously steal, take and carry away, one mulatto boy named David Casar, who was a free boy and .not a slave, the said Davenport at the time knowing him to be free. Davenport demurred to the indictment. The court overruled the demurrer. And then he pleaded not guilty, and was put upon his trial.

A motion was made in the County Court of Spottsylvania against Seth Barton, on behalf of William Price, Cashier of 591 the *“Mutual Assurance Society, against fire on buildings of the State of Virginia,” and judgment rendered for 117 dollars and 47 cents, for premiums under a declaration of insurance made by John James Maund, (for whom the property declared for was purchased by the said Barton,) with lawful interest, from the date of the declaration, until paj’ment, and…

On the 6th of April 1835, James W. Clemens administrator and Elizabeth Harkins administratrix of William Harkins deceased, commenced an action of debt in the circuit court of Norfolk borough against John Herrington. The declaration demanded 1250 dollars with interest thereon from the 20th day of August 1817, and 8 dollars 75 cents costs of suit.

These two cases were argued and decided together. In each a judgment was obtained on motion, (the parties being heard by their attorneys,) in the County Court of Eauquier, on a three months’ replevin bond, dated the 3d of May, 1804; the condition of which recited, that, “whereas Ambler and others, heirs and devisees of John H. Norton, had distrained upon the goods and chattels of the above bound (Augustine Smith, in one instance, and James Smith in the other) for rent in…

John M. Jones was indicted, and tried, for the murder of George Hamilton, in the circuit court of Lynchburg. The jury found him guilty of murder in the first degree. He moved the court to set aside the verdict, and direct a new trial, on the ground that the verdict was not warranted by, the evidence.

<p>i. Evidence — Witnesses—Competency.*—A vendor of land according' to certain lines must be presumed interested, and therefore incompetent as a witness, to establish those lines, unless it appear that he did not warrant the title,</p> <p>a. Chancery Practice — Execution of Release — Parties.— In a Court of Equity, a plaintiff may be decreed to execute a release, and to procure a third person (under whom he claims) to join him therein; without making such person a party to the suit.</p>

On the 8lh of October 1833, Mary H. P. Brent, a maiden lady then living in Orange county, made a bill of sale to her cousin Henry S. Peyton for five slaves, for the consideration expressed therein of 500 dollars. The slaves consisted of a negro woman, her three children, and a girl named Eliza. For the 500 dollars a bond was executed j but on the same day miss Brent made her will, whereby she gave the bond to Peyton.

John Dawson obtained a judgment in the County Court of Lancaster against Catharine Glascock, administratrix of George Glascock, deceased, for 130 dollars and 19-cents damages, and 49 dollars and 40 cents costs; which judgment was affirmed by the Northumberland District Court; the damages allowed for retarding the execution thereof by the appeal being 24 dollars and 10 cents, and 6 dollars and 87 cents costs.

In October 1841, George Cottingham presented a petition to the judge of the first circuit, setting forth that he was bora in the city of Dublin in the united- kingdom of Great Britain and Ireland: that he migrated to this country in or about the year 1836, and shortly after, to wit, on the 16lb of May 1837, enlisted in the army of the United States for three years, and served as a private in captain E. S. Hawkins’s company (H.) of the seventh regiment of infantry of the said…

On the 19th of November 1839, a bill was presented to the judge of the circuit superior court of law and chancery for tbe county of Henrico and city of Richmond, in the name of Manuel sometimes called Manuel Dodson, setting forth, that be was late the slave and property of Elizabeth Magruder of Washington county in the district of Columbia, who, by her will bearing date the 7th of March 1827, and proved and recorded on the 13th of July 1827 in the orphans court of said…

On the 25th of August 1827, a deed was made purporting to be between Daniel A. Wilson of the first part, George Booker, William M. Thornton, William F. Randolph and Samuel C. Anderson of the second part, and John V. Wilcox, William R. Johnson, John W. Nash, John Hughes and Allen Wilson of the third part, whereby, after reciting that the said Daniel A. Wilson was indebted to Wilcox by bond and to Johnson by bond, that Nash, Hughes and Allen Wilson stood bound as sureties for…

By an act of the general assembly of Virginia passed the 22d of December 1794, an assurance was established by the name of “ The Mutual Assurance Society against fire on buildings of the state of Virginiawhich act was explained by another act passed the 23d of December 1795. These two acts will be found in the session acts of 1794, p. 17. ch. 26. and in the session acts of 1795, p. 40. ch. 41.

By six several warrants under the hand and seal of William Lambert mayor of the city of Richmond, dated the 8th of November 1841, and directed to the keeper of the jail of said city, the said jailor was required to receive into his custody, and safely keep until the next court of hustings to be held for the said city, or until thence discharged by due course of law, six slaves, described as belonging to Simon Abrahams of said city, namely, Helphy Anderson, Randol Kinney,…

Case adjourned from the circuit superior court for the county of Henrico and city of Richmond. William B. Dahney, late the first teller of the bank of Virginia, was indicted in the said circuit court, upon the statute of February 24.1820, (Suppl. to Rev. Code, ch. 223. § 2. p. 278.) for felony in embezzling and fraudulently converting to his own use 4000 dollars of the money and bank notes of the bank, placed under his care and management by virtue of his office aforesaid.

A presentment was made in the circuit superior court for the county of Henrico and city of Richmond, at October term 1840, against James Phalen, charging that he, since the 1st of January 1837, to wit, on the 1st of June 1840, at the city aforesaid, unlawfully did sell and cause to be sold one certain lottery ticket in a certain lottery to be drawn in this commonwealth, to wit, in a lottery called Alexandria and Fauquier turnpike lottery, and then and there advertised to be…

An indictment was found in the county court of Greenbrier against Thomas M’Clintic, charging that he did, on the 22d of November 1839, “ build a fence across a portion of the public road in the county aforesaid, leading from &c. being then and there owner and tenant of the lands through which said public road runs, and did then and there continue the said fence so built as aforesaid across said public road, from the said 22d day of November 1839 to the 25th day of November…

John Cook was indicted in the circuit superior court of Pendleton county, at May term 1841, for perjury in falsely swearing to a schedule delivered in by him under the act for the relief of insolvent debtors, 1 Rev. Code, ch. 134. § 31. p. 536, 7.

In the circuit superior court for the county of Henrico and city of Richmond, at October term 1840, twenty-four indictments were found against Benjamin W. Green, for several felonies, for which he had been duly examined before the court of hustings for the city of Richmond, and, on the 15th of June 1840, remanded by that court for trial in the said circuit court. The indictments were found at the term of the circuit court next following the examination.

.Fletcher Heath was indicted, in the circuit superior court for the county of Henrico and city of Richmond, for the wilful murder of Delia Harris., At October term 1S42, a jury being impanneled for his trial found him guilty of murder in the first degree, and the court passed sentence of death upon him. In the course of the proceedings, the court gave opinions upon several points against the prisoner, to which he excepted.

William, Young was indicted in the circuit superior court for the county of Henrico and city of Richmond, for felony in stealing a negro woman slave named Eliza, the property of Sarah C. Atlcinson.

On the 15th of April 1840, the circuit superior court of Scott county ordered that Samuel E. Jones, Philip Counts and Archibald Forgay be summoned to appear before the court on the first day of the next term, to shew cause why an information should not be filed against them for assaulting and arresting William Sons on the 9th day of April 1840, and imprisoning him from that day until the 14th of the same month.

Alexander H. Overhee was tried and convicted, in the circuit superior court of Lee county, at September term 1842, upon ah indictment for forgery, and sentenced by the court to imprisonment in the penitentiary for two years, the term ascertained by the jury.