Volume 1 — Virginia Decisions

<p>Appellate Practice — Decrees—Formal Errors — Correction of.</p> <p>The appellate court will not reverse a decree for mere formal errors which may be corrected by that court, when upon the whole record it appears that the decree complained of is manifestly right or that no error was committed to the prejudice of the party seeking to reverse it.</p> <p>Judicial Sales — Failure to Ascertain Vague Interest in Land.*</p> <p>In a decree for the sale of land it is not error for the court to fail to ascertain the fee simple and annual value of the interest of the defendant in certain estate descended to him, where the defendant does not state in his answer nor pretend to show by proof what is the nature or extent or value of such interest.</p>

<p>The essential facts are fully stated in the opinion.</p> <p>Appeal from the circuit court of Bath county.</p>

<p>Appeal from the circuit court of Augusta county.</p>

<p>Appeal from circuit court of Rockingham county.</p> <p>The complainant filed his bill asking relief from a debt on the ground that his tender of the money had been refused and by reason of such refusal the Confederate notes in which the debt was payable had become wholly lost to him.</p> <p>Such tender was denied in the answer of the defendant, and the complainant failed to substantiate it by two witnesses, or one witness and strong corroborating circumstances.</p>

<p>Appeal from circuit court of Frederick county.</p>

<p>Appeal from circuit court of Rockingham county.</p>

<p>Executors and Administrators — Case at Bar.</p> <p>In 1834, Samuel Steele died, having first executed his last will by which he devised his whole estate to his wife, Frances Steele, during her life, with power to make advancements to her children, Mary F- Arnall, Andrew A. Steele and other children at her death and to dispose of the residue among her children by will. She accordingly did this, and Andrew A. Steele qualified as executor of her estate. Subsequently, Andrew A. Steele died after making a will with John D. Imboden as his executor. In 1857, Mary F. Arnall, by her next friend filed her bill against Imboden to have her interest in her mother’s estate ascertained and settled, through a trustee, on herself and her children, free from the debts or control of her husband. In 1858, a decree was rendered in that suit, ascertaining the amount due to said Mary F- Arnall tobe $2,547.22, with interest on $2,164.64. Although there was a sufficiency of assets in the hands of the executor at the time of the decree it was not paid. In 1871, suit was brought by Mary F. Arnall to have her claim settled by Imboden and his sureties on his executorial bond: held:</p> <p>Same — Fiduciary Claim against Estate — Case at Bar.</p> <p>1. That the circuit court did' not err in holding the claim of Mrs. Mary E. Arnall to be a fiduciary demand, entitled to priority of payment out of the estate of Andrew A. Steele. It was a claim to an equitable settlement on her and her children, out of her share of the estate of her mother, Mrs. Frances Steele, in the hands of the said Andrew A. Steele, as executor of the said Frances Steele.</p> <p>Same — Same—Notice of.</p> <p>2. That the pleadings and proceedings in the suit and the decree of 1858 gave full notice to Imboden, executor of Steele, of the character of the claim therein asserted and that it was a fiduciary demand, entitled to priority of payment out of the estate of his testator.</p> <p>Same — Devastavit—Liability of Executor.</p> <p>3. That the decree of 1858 was a proper foundation for the proceedings afterwards had in this cause to obtain the benefit of said decree and to enforce its payment by the executor and his sureties, de bonis propriis; since at the time of the decree there was a sufficiency of assets in his hands and his failure to pay was a devastavit in not paying said debt and in applying the assets to payment of inferior dignity.</p>

In 1853, Samuel Long purchased a tract of land from Giles Devier and Ewing Devier for which he paid a portion of the purchase money in cash and executed bonds for the balance. In 1872 Long filed his bill in the circuit court of Rockingham county setting out the above facts, claiming full payment and asking for a production of the bonds alleged to have been lost' by Devier.

<p>Appeal from circuit court of Rockingham county.</p> <p>The facts are fully stated in the opinion.</p>

This was an action of debt in the circuit court of Highland county by William Lockridge against John Lockridge upon a bond executed by the latter to the plaintiff for the sum of 1500.00. Process was issued against the defendant and returned £ £no inhabitant’ ’; but the defendant appeared and pleaded, and the case was tried by a jury, and a verdict found for the plaintiff.

<p>Appeal from circuit court of Rockingham county.</p> <p>The facts are fully stated in the opinion.</p>

This is an appeal from circuit court of Alleghany county in which John Kelly is appellant and John Largney appellee. See the opinion for further facts.

The facts are more fully stated in the opinion. Appeal from circuit court of Augusta county. Bill in equity asking for an injunction restraining the appellee from the execution of a judgment against the appellant. Injunction perpetuated.

This was an appeal from a decree of the circuit court of Shenandoah county, refusing to decree specific performance of a certain tract of land sold by Charles E. Bice, appellant, to John H. Zirkle, appellee.

In ] 871, A. S. Modesitt assigned to H. M. Keyser and others a judgment against William H. Brumback, for the sum of $650.00.

This was an appeal from the circuit court of Frederick county for the dissolution of an injunction restraining the sale of land under a trust deed given by Solenburger, the appellant, for the purchase price of land bought from Duval, the appellee.

This was an action of debt on bond for rent by Jacob Barley, appellant, against Samuel Barley, appellee. On 2nd day of November, 1870, Jacob Barley, the father of Wm. Barley, and Samuel Barley, sold his farm to Wm. Barley, who immediately advertised the same for rent, and on the 25 th day of November, 1870, Samuel Barley became the lessee at a public renting, at §530.00 a year for three years, with certain reservations in the lease in favor of the said Jacob Barley.

The facts are fully stated in the opinion. This is a controversy between two assignors of two different bonds. The lower court decreed in favor of the first assignee in point of time.

<p>Appeal from decree of the circuit court of Clarke county in which the appellant Conrad was plaintiff, and appellee Johnston was defendant.</p> <p>The opinion states the facts.</p>

. This was an action of assumpsit brought in the corporation court of the city of Winchester by George Kurtz against executor of the estate of John Kerr, for the sum of $1,000.00 alleged to have been promised to the plaintiff by the said John Kerr for nursing the latter through a long illness. There was a judgment for the plaintiff from which judgment the defendant appeals.

This was an action in the district court of Winchester in which the appellant, Francis C. Dever, was plaintiff, and Harvey M. Jordon, the appellee, was defendant. The facts are fully stated in the opinion.

<p>Conveyance from Husband to Wife — Consideration—Burden of Proof.*</p> <p>In a suit to set aside a conveyance from husband to wife on the grounds that it is not upon consideration deemed valuable in law, and consequently fraudulent and void as to creditors, the burden of proof that there was a valuable and adequate consideration is upon the wife.</p> <p>Same — Petition for Rehearing.</p> <p>Where the answer of the defendant is delayed by means beyond the control of such defendant, it is error not to allow a rehearing, when there is nothing in the record to indicate that this petition was filed merely for purposes of delay.</p>

<p>Appeal from circuit court of Erederick county.</p>

Opinion states the facts. Appeal from circuit court of Page county. Suit to subject land of a decedent to payment of debts.

<p>The opinion states the case.</p> <p>• Error from circuit court of Rockingham county.</p>

<p>The facts are more fully stated in the opinion.</p> <p>Appeal from circuit court of Frederick county.</p>

Sometime prior to 1817, James Campbell became the sole owner of a large tract of land, on which the Rockbridge Alum Springs were situated, containing about 2,300 acres. On the 11th of December, he sold to Doyle an undivided interest in the land retaining that on which the Alum Springs were situate, and the land contiguous thereto.

<p>Evidence — Competency of Witnesses — Case at Bar.</p> <p>In a suit by the administrator of A. against the administrator of B. on a bond given by B. to A. during their lifetime, C., whose name had been erased from a former bond payable to A. in which B. was one of the obligors, which bond formed the foundation of the bond sued on, was called as a witness to prove the circumstances attending the erasure of his name: held, C. is a competent witness.</p> <p>Same — Same—Same.</p> <p>Upon the trial, D., the widow of B., was called as witness to prove certain facts which occurred in B.’s lifetime relating to the execution of the bond sued on: held, the rule of law excluding the testimony of a surviving husband or wife as to facts occurring during the coverture is not confined to confidential communications between the parties, but extends to all matters which he or she would be incompetent to prove in a suit brought during the lifetime of the other, and D. is therefore incompetent.</p>

<p>The case is sufficiently stated in the opinion of Judge Wingfield.</p>

<p>Judgments — Suit to Subject Land to Paymentof — Bankruptcy Proceedings — Judgment Creditor Not Party to — Case at Bar.</p> <p>In March, 1867, G. recovered a judgment against P. and Q., which was duly docketed; and on the 8th February, 1869, he instituted a suit in chancery in a state court to subject the lands of the judgment debtors to the payment of the judgment. Prior to the institution of the said suit P. and Q. filed petitions in bankruptcy, and were declared bankrupts by the district court of the United States for the district of Virginia. In the bankruptcy proceedings the lands of P. and Q. were sold and bought by themselves — and in those proceedings they were finally duly discharged as bankrupts. To those proceedings G. was never made, nor in any wise became, a party. After the proceedings in the bankrupt court were ended, the state court proceeded with the chancery suit, and after a reference, and a report from a commissioner showing the liens, and that the rents of the land would not satisfy the same in five years, decreed a sale of the lands of P. and Q. for the payment of the liens thereon. On appeal, it was held:</p> <p>Same — Same—Same—Same—Jurisdiction.</p> <p>1. The state court had jurisdiction of this suit.</p> <p>Same — Same—Same—Same—Effect.</p> <p>2. G. never having been a party to the proceedings in the bankrupt court, was not bound thereby.</p> <p>Sale of Land under Decree — Day to Redeem.</p> <p>3. The court below did not err in decreeing a peremptory sale of the land without giving a day to redeem.</p>

<p>Waiver of Homestead — -Statute Allowing Unconstitutional.</p> <p>The provision of the Code of 1873, contained in sec. 3, chapter 183, page 1169, for a waiver of the homestead exemption conferred by the constitution of Virginia, is unconstitutional and void.</p>

From the chancery court of the city of Eichmond. This court concurred with the chancellor on all but one of the points involved. The portion of Judge Fitzhugh’s opinion which relates to that point, is as follows : The third exception applies to the opinion of the commissioner that the land conveyed in trust to secure the bond be first sold and if there should be a deficiency, that Eose should be decreed to pay it to complainant.

This was an appeal from a decree pronounced by the circuit court of Lancaster county.

On the 13th of March, 1862, Joshua C. Gunnell, of the •county of Fairfax, a man of extensive business engagements, being involved personally and as” security for others, and apprehending serious losses by the war, then flagrant; after consultation and thought, determined to make a deed of trust conveying all his property for the payment of his own debts, preferring those who stood bound as security for him.

Upon a writ of supersedeas to a judgment of the circuit court of the city of Richmond. The facts of the case are fully stated by Judge Barton in his opinion.

<p>The facts are stated in the opinion.</p>

<p>Promissory Notes — Place for Bank Left Blank — Effect—Case at Bar.*</p> <p>C. made and signed two notes on printed forms, which were left blank as to the bank at which they were to be payable, and procured G. to sign his name on the back thereof, and these notes he delivered to persons under whom the plaintiffs claimed, as collateral security, under an agreement with such persons that he should deliver to them endorsed notes. It being in proof that C. and G. regarded these notes as negotiable, and that there was a usage in E., where C. and G. lived, to leave notes blank as to the bank at which they were payable, and for the holder to fill such blank, it was held: that said notes were to be treated as negotiable, and G., not having been duly notified of their dishonor, was -discharged.</p>

<p>The case is fully stated by Judge Wingfield in his opinion.</p>

<p>Bonds — Co-sureties—Liability for Contribution — Case at Bar.*</p> <p>C., as the security of H. & A., executed to S. a bond for $1,394.74, payable on demand, andS. assigned the bond to J., with the following agreement in writing: “February 11th, 1861 — I have this day passed to J. M. Smith the bond of Carey J. Hall and others, amounting to $1,394.74, and due January 1st, 1861, for which I bind myself and my heirs to said Smith as one of the securities. Witness my hand and seal this the date as above written. — H. B. Scott.” The principals in the bond becoming insolvent, and C. having to pay the debt, he filed his bill against S. for contribution with him as a co-security, under the alleged terms of the above agreement made at the time of assignment: held: S. is not liable for contribution as a co-surety.</p> <p>Same — Same—Same.</p> <p>The right to contribution is not affected by the co-sureties being bound jointly or severally, or by the same or different instruments, or at the same or different times, or for the same or different amounts; except that when the amounts are different, a co-surety cannot be required to contribute beyond the sum for which he was bound — nor does it matter whether the co-sureties were aware of there being such.</p> <p>Same — Same—When Liable to Contribute.</p> <p>It is essential that the3r should be co-sureties for the same principal and for the same engagement.</p>

<p>Forthcoming Bonds — Forfeiture of — Case at Bar.*</p> <p>In an action of debt, brought on a negotiable note, dated May 3, 1867, and payable at thirty' days from date, the writ and declaration claimed interest from June 3, 1867, and (although no formal judgment was entered in the county court) the office judgment becoming final, the judgment was considered as entered by default, •and execution issued, for the amount, with interest, as claimed in the writ and declaration, not allowing any days of grace. A forthcoming bond having been taken and forfeited; on a motion by the plaintiff for an award of execution thereon, the defendants moved to quash the bond, first, because the sale had not been advertised; and secondly, because there was an alleged mistake in the execution of the bond, it being claimed, that it was not intended to be a common forthcoming bond, but a forthcoming bond under the interpleader statute, and the, defendants proposed to introduce the deputy sheriff, who took the bond, to prove this: held:</p> <p>Same — Same—Failure to Advertise Sale.</p> <p>1. The failure to advertise was no ground for quashing the bond, and even had the property been advertised, the obligors in the bond would not be relieved from their obligation, without having the property forthcoming, on the day, and at the place of sale.</p> <p>Same — Same—Mistake in Execution — How Taken Advantage of.</p> <p>2. The alleged mistake in the execution of the bond, could only be taken advantage of by a special plea, alleging the mistakes, or by a special plea of non est facttim; and not on a motion to quash the bond, and the evidence of the deputy sheriff was therefore inadmissible.</p> <p>Same — Case at Bar.</p> <p>The county court having overruled both motions to quash the bond, a motion was then made, within time, to reverse the judgment by default, on the ground that the note does not warrant the judgment; this motion was also overruled by the county court. On a writ of error to both of these judgments, the circuit court reversed the action of the county court, and set aside all of the proceedings to the summons commencing the suit, and remanded the cause to rules with leave to the plaintiff to amend his declaration: held by the court of appeals: The county court did not err, in entering the judgment on the forthcoming bond in the condition of this case, and that the circuit court ought simply to have corrected and affirmed the judgment of the county court.</p>

<p>Vendor and Vendee — Sale of Land to Satisfy Judgment Lien — Case at Bar.</p> <p>A vendor sells a tract of laud, puts the vendee in possession, but retains the title to the whole tract to secure a part of the purchase money. This vendee then sells a portion of said tract to another on credit, puts him in possession, takes his bond for the purchase money, but having no title, attempts to make none. The first vendee then dies, and his vendor and another, qualify as his executors; the bond of the second vendee for the land purchased by him is assigned, with his knowledge, to one of the distributees, of the estate of the first vendee (his vendor) by the executors, who, having paid the whole purchase money to the first vendor for the whole tract, then (November 11th, 1863), unite in a deed directly to the second vendee, for that portion of the land purchased by him, with knowledge of the outstanding unpaid bond. A judgment was obtained on this bond April 11th, 1866, and duly docketed April 20th, 1866, and in January, 1868, a bill was filed to. subject the land, for which this judgment was, a portion of the purchase money, to its payment, asserting a vendor’s lien thereon. On the 12th June, 1866, the said second vendee conveyed his whole propertjT to a trustee for the benefit of creditors named in the deed. At June rules, 1869, another bill was filed against the said second vendee, his trustee and others, by another judgment creditor of the second vendee to enforce his judgment lien. On the ISth September, 1869, a decree was rendered in the two suits which had been consolidated for an account of the liens and their priorities ^ and three days thereafter, another decree was rendered for the sale of the said second vendee’s real estate (no objection was made to the decree for sale before the report of liens and priorities was made). There were a large number of judgments of the same class with that of the 11th April, 1866, for which a vendor’s lien was claimed, amounting to more than the value of the whole real estate to be sold. The circuit court held that the holder of the said judgment of the 11th April, 1866, had no claim in equity to a vendor’s lien for the amount of his judgment and dismissed his bill as to this claim: held:</p> <p>This was erroneous. The conveyance by the first vendor, and as executor of the first vendee, to the second vendee of the land purchased by him, and the acceptance of the same by said second vendee, without the knowledge or assent of the holder of the bond given for part of the purchase money, and with the knowledge that this land was held as 'security for said bond, was a fraud on the rights of the holder of the judgment rendered on that bond, and neither the said second vendee nor his judgment creditors, who occupy no better position with reference to the same, than he, can claim any benefit from said conveyance; and the funds derived from the sale of the land for the price of which said judgment was obtained, must be first applied to the payment of that judgment, and this is not in conflict with the provisions of l 1, ch. 119, Code of 1860, with reference to vendor’s liens.</p> <p>Same — Same—Attorney’s Fees — Expenses of Suit — Case at Sar.</p> <p>The commissioner of sale, in the consolidated suits, reported that he had paid out of the proceeds in his hands, attorney’s fees, to two counsel who defended- the first suit, and another attorney’s fee to the counsel who brought the second suit, amounting in all to about $400. This was excepted to by the plaintiff in the first suit, but allowed by the circuit court: held:</p> <p>This was also erroneous. “It is a general practice where a creditor suing for himself and others who may come in and contribute to the expenses of the suit, institutes proceedings for their common benefit, that those who derive a benefit shall bear their proportion of the expense and not throw the whole burden on one. This is equitable and just. But it only applies to those creditors who derive a benefit from the services of counsel in a cause, in which they are not specially represented by counsel. If a creditor has his own counsel in a cause, he cannot be required to contribute to the compensation of another. And this contribution must come from the creditors. The debtor cannot be charged with it. The law taxes him with certain costs for attorney' and counsel fees, and the court cannot, directly or indirectly, impose upon him fees to the plaintiff’s counsel, beyond what is provided by law.”</p>

<p>From the circuit court of the city of Richmond.</p> <p>The facts are sufficiently stated in the opinion of the court.</p>

From the circuit court of Mecklenburg county. (The facts are only partially stated in the opinion and head-notes, but it is hoped sufficiently for a proper understanding of the points determined. Inability to find a copy of the record prevents a fuller statement.) — Ed.

<p>From the circuit court of Fauquier county.</p> <p>The facts of the case are sufficiently stated in the opinion of the court.</p>

This was an action of debt brought by Robert Alvis, assignee of Virginia Cunningham, against Philip T. Johnson, in the county court of Chesterfield, in the year 1872. The case came regularly on the docket of the county court, and after some proceedings, was removed to the circuit court.

This was a bill filed by Thomas W. Shiflett and Willie M., his wife, who was Willie M. Perkins, assignee of C. O. Perkins, her late guardian, who sue on behalf of themselves and all other creditors of William J. Ragland, deceased, against Philip Gh Seay, surviving partner of the late firm of P. Gr. Seay &Co., and as ex’or of said Wm. J. Ragland, deceased.

This was a writ of error and supersedeas to a judgment of the circuit court of the city of Petersburg. The facts of the case are sufficiently set forth in the opinion of the court.

This is an appeal from the refusal of the judge of the circuit court of Botetourt county, Virginia, to grant John R. Leigh-ton a license under the ‘ ‘New Liquor Law’ ’ approved March 3rd, 1880, which license had previously been refused by the county court of said county. The case is fully stated by Judge Staples in his opinion.

This was a writ of error to a judgment rendered by the judge of the circuit court of Grayson county, refusing a writ of error, to a judgment rendered by the county court of said county, sentencing Henry Grite to be hung for the murder of Gabriel Gwyn on the night of January 5, 1880.

<p>Real Estáte — When Treated as Partnership Property — Depends on Intention.</p> <p>Whether real estate held by persons who are partners is to be considered and treated as partnership property, depends upon the real intention of the vendees at the time the property is acquired or appropriated, and where it is shewn that real estate was intended to be purchased as partnership property, and appropriated to such uses — which may be done by parol — a court of equity will so dedicate it, although the property is conveyed to the partners as joint-tenants, or as tenants in common, and the obligation given for the purchase money, is the individual bond of the partners, instead of the note of the firm.</p> <p>Same — Held Jointly by Two or More Persons — Presumption—Case at Bar.</p> <p>Real estate held in the joint names of two or more persons, if, there be no proof that it was purchased with partnership funds and for partnership purposes, will be presumed to be held by them as joint tenants, or as tenants in common. So if it is not purchased for partnership purposes, even though it is paid for with partnership funds, and is in fact appropriated to partnership purposes, it will not be presumed to belong to the firm, but such fact may be proved, and proved by parol.</p> <p>Same — Same—Same.</p> <p>Where a joint bond is given for the price, and the real estate is conveyed to the partners as joint tenants, or as tenants in common, prima facie it is their joint property, and not partnership property; and this legal presumption must be overcome by strong proof. In a doubtful case the deed will prevail.</p> <p>Same — Same—Parol Proof of Intention.</p> <p>Whilst a partnership, as such, cannot hold the legal title to real estate, which can only be conveyed to a natural person, or artificial one, as a corporation, yet a partnership may in equity own real estate, without reference to who holds the legal title, and parol evidence may be introduced to establish the real intention of the grantees, and to set up a trust in them for the benefit of the partnership; and this is so whether there was any actual payment by the grantees at the time of the purchase or not.</p> <p>Declarations of Trust.</p> <p>The provisions of the 7th and 8th sections of the English statute of frauds never were enacted in Virginia, and the law here in relation to declarations of trust, is, and always has been, the same that it was in England before the statute.</p>

This was a writ of error to a judgment rendered by the circuit court of Gloucester county, Virginia, in an action of unlawful detainer, in which S. G. Cooke, executor of Wm. Andrews, dec’d, was plaintiff, and L. J. Stuart was defendant. The facts are set out in tbe opinion of the court.

This was an appeal from a decree pronounced by the circuit court of Hanover, in a chancery suit, in which ¥m. R. Glinn, Peter D. Glinn, GermanR. Glinn, Jr., and Araminta Glinn, children of German R. and Mary Roads Glinn, his wife, were plaintiffs, and William N. Waldrop administrator of said German R. Glinn, deceased, and Wm. Smith individually and as executor of Celia Smith, • deceased, who was the mother of Mary Roads Glinn, deceased, were defendants.

This was a writ of error to a judgment rendered by the circuit court of Orange county. The facts are sufficiently stated in the opinion of the court.

This is an appeal from a decree of the circuit court of King William county. The facts of the case necessary for a proper understanding of the points decided are as follows, viz.: D. H. Gregg purchased of Young J. Clements a tract of land in King William county, which Gregg then leased to Clements for a term of five years. During the lease, and two years after the sale and conveyance to Gregg, Clements was adjudicated a bankrupt.

This was an appeal from a decree pronounced by the cor-' poration court of the city of Norfolk, in a suit in chancery, in which B. M. Bachelder and Wm. II. Collins, merchants and partners, trading under the style of Bachelder & Collins, were plaintiffs and Francis Richardson and Henry C. Percy, trustee, were defendants. The corporation court decided against the plaintiffs, and they appealed to this court.

This was a writ of error to a j udgment rendered by the circuit court of the city of Lynchburg, in an action of assumpsit brought by E. J. Folkes and J. L. Winston, partners under the style of Folkes & Winston, against Ambrose B. Rucker. The facts are sufficiently stated in the opinion of the court.

This was a writ of error to a judgment rendered by the cirfcuit court of Norfolk city in a suit in which L. J. Tormey was plaintiff and Samuel Selden, executor of John E. Tunis, deceased, was defendant. The facts sufficiently appear in the opinion of the court.

<p>Powers Given by Law — Must Be Strictly Pursued — Duty of Persons Claiming under.</p> <p>Where a naked power is given by law to an officer or other person, that power must be strictly pursued, especially if by the exercise of that power, the estates or rights of others may be forfeited or lost; and it will devolve on him who claims a right, under the exercise of such power, to show that it was in all respects pursued.</p> <p>Same — Same—Same—Application to Tax Titles — Effect of Sec. 23, Ch. 37, Code I860.</p> <p>The above principle, in its application to tax titles, was not affected by the provision contained in § 23, ch. 37 of the Code of 1860, except that since that enactment the irregularities must appear on the face of the proceedings. No change was made in the nature or degree of the irregularity in the proceedings, but only in the evidence required of its existence. The effect of the statute was to shift the onus probandi; and whereas, before it was incumbent on the claimant under a tax title to prove affirmatively that all the requirements of law had been complied with, it is now necessary for those claiming against the tax title, to show irregularities apparent on the face of the proceeding's.</p> <p>Tax Sales — Irregularities Shown — Effect upon Purchaser’s Deed.</p> <p>A case in which such irregularities were clearly shown, and the deed of a purchaser of land at a tax sale, annulled.</p> <p>Same — Failure to Show List of Delinquent Lands Was Examined— Effect.</p> <p>The failure to show that the list of delinquent lands was examined by the county or corporation court, or the judge thereof in vacation, constitutes a fatal defect in the title.</p> <p>Same — Purchaser Not in Possession — Court of Equity Has Jurisdiction to Test Title of.</p> <p>The purchaser at the tax sale, not being in possession of the land, a court of equity has jurisdiction to test the validity of his title thereto, and the power to remove any cloud put on the title by the proceedings to sell and convey to him.</p>

<p>Writ of error and supersedeas to circuit court of Augusta.</p> <p>The facts sufficiently appear in the opinion.</p>

This case was argued at Wytheville, but decided at Richmond. Bill in equity by Julia Ann Sexton, executrix of John Sexton, deceased, against S. I. Patterson, to be subrogated to the rights of numerous judgment creditors of the said S. I. Patterson, as a constable of Wythe county, which judgments had been discharged by the said John Sexton, who was surety on the official bond of the said Patterson. The facts are sufficiently stated in the opinion.

Bill in equity by Sterling N. Apperson against Win. M. Cabell, trustee, and others, to enforce the satisfaction of certain judgments held by said Apperson as assignee of one Staples out of certain lands held by said Cabell as trustee, upon which it was claimed the said judgments were liens. The facts are sufficiently stated in the opinion.

Petition for a writ of mandamus. This case should be read in connection with that of Black v. Trower, supra. Held: was unconstitutional and void. A rule nisi was awarded against Calvert and the electoral board of Portsmouth. The case was heard along with Black v. Trower, and the right of the respondent (Calvert) to the office is governed by that decision.

<p>Appeal from circuit court of Bland county.</p> <p>The opinion states the case.</p>

<p>Equity Jurisdiction — Usurpation of Mayor’s Authority by Police Commissioners — Injunction.</p> <p>The mayor of Norfolk sought an injunction to restrain the board of police commissioners of that city from interfering with and exercising the duties of his office, setting out certain acts done by the board which he .alleged to be a usurpation of his powers: held, •equity has no jurisdiction.</p>

<p>Error to the corporation court of Lynchburg.</p> <p>The opinion states the case.</p>

<p>General Receivers — Successive Bonds of Sureties — Case at Bar.</p> <p>A general receiver, appointed under the act of June 3d, 1852, (Code, 1873, ch. 175, §§ 15-28), to hold office during the pleasure of the court, executes several annual bonds in different amounts and with different sureties, all conditioned for the faithful performance of his duties; he is removed from office by the court and dies without having paid over to his successor, or to the parties entitled thereto, the money in his hands; a portion of the money received b3T him was loaned to a firm of which he was a member. In a chancery suit against his personal representative and the sureties in all of his bonds, by the parties who were entitled to the money received by him in a certain suit, to ascertain the liability of the sureties and to recover the money, held-.</p> <p>Same — Same—Same—Jurisdiction to Enforce Bonds.</p> <p>1. The jurisdiction is in equity.</p> <p>Same — Same—When Take Effect.</p> <p>2. The several bonds are cumulative securities for the official conduct of the receiver, taking effect from their respective dates, and terminating with his removal from office.</p> <p>Same — Same—Liability of Sureties.</p> <p>3. The several bonds differing in amount, the liability of the several sets of sureties is not equal, but in proportion to the penalties of the different bonds.</p> <p>Same — Same—Chargeable with Simple Interest.</p> <p>4. The receiver and his sureties are chargeable only with simple interest upon the sums loaned to the receiver’s firm, to be computed from the time it became his duty to invest those sums respectively.</p> <p>Same — Same—Bill Treated as Creditor’s Bill.</p> <p>5. The bill must be treated as a creditor’s bill, although it does, not purport to be such, and other creditors may come in by petition and be made co-plaintiffs.</p>

<p>Petitions of James T. Watlington and C. C. Carrington for writ of habeas corpus.</p> <p>The opinion states the oases.</p>

<p>Fire Insurance — Double Insurance — Contribution between Insurers.*</p> <p>The doctrine oí contribution applies in cases of double insurance, where the engagements of the insurers are for the same person, upon the same subject-matter, and against the same risks.</p>

' Error to the hustings court of Eiehmond. The act of assembly of March 15th, 1881, providing for the assessment of license taxes against attorneys-at-law, provides as follows : £ ‘No attorney licensed under this act shall be allowed to bring suit against the commonwealth or any treasurer or collector of taxes for the recovery of money for coupons tendered for taxes, unless he take out a special license therefor, for which privilege he shall pay a specific license tax, in…

Upon the complaint of Robinson, Blanks was arrested and taken before a justice and found guilty of petit larceny ; from this judgment and sentence Blanks appealed to the corporation court, where the judgment was reversed and Blanks was adjudged not guilty of the offence. Blanks thereupon brought his action against Robinson for damages for malicious prosecution.

<p>Error to circuit court of Fauquier county.</p> <p>The opinion states .the case.</p>

<p>Public Free Schools — County Superintendents — Term of Office.</p> <p>Under the constitutional amendment adopted in November, 1874, the first regular term of office of county and city superintendents of schools began on July 1st, 1877, and ended on June 30th, 1881; the second term began on July 1st, 1881, and ended on June 30th, 1885; and the third term began on July 1st, 1885, and will end on June 30th, 1889. Pendleton v. Miller, ante, p. 606.</p> <p>Same — Same—Same—Case at Bar.</p> <p>June 7th, 1883, Roller was appointed superintendent of schools for Augusta county, and held the office until July 1st, 1886, when Jordan, who was appointed thereto on March 20th, 1886, took possession thereof. Upon petition for mandamus by R. to recover the ■office, held:</p> <p>Same — Same—Same—Same.</p> <p>1. Under the repeated decisions of this court, Roller was appointed to fill the unexpired term ending June 30th, 1885, and since that time has been a mere locum tenens, holding by virtue of the constitutional provision which allowed him to hold until his successor was appointed and qualified.</p> <p>Same — Same—Same—Unexpired Term.</p> <p>2. Jordan is entitled to hold the unexpired portion of the term which began July 1st, 1885, and will end June 30th, 1889; his appointment was valid (the board of education having authority to fill vacancies) notwithstanding the board believed they had authority to make the appointment under the joint resolution of February 26th, 1886, which was nevertheless declared null and void in Pendleton v. Miller.</p>

The Southern Mutual Insurance Company was chartered in 1868, with “power to make insurances of any kind in the fire, marine, tornado, or life line, on the mutual and cash plan. ’!

<p>Pleading — Defective Replication — Amendment—Statute of Limitations.</p> <p>In an action of detinue, the replication to defendant’s plea of the statute of limitations being insufficient, a demurrer thereto was sustained, and the action dismissed. The declaration contained the averments for the lack of which the replication was defective: held, that the judgment dismissing the action was erroneous -r that plaintiff should have had leave to amend his replication.</p> <p>Same — Same—Action of Detinue — Statute of Limitations.</p> <p>In an action of detinue, defendant pleaded the statute of limitations, and plaintiff replied that within five years, etc., defendant acknowledged the article detained to be plaintiff’s property: held insufficient, in not averring a promise to deliver the possession.</p>

<p>Appeal from circuit court of Fauquier county.</p>

<p>Appeal from circuit court, Wythe county.</p>

<p>Appeal from circuit court, Gloucester county.</p>

<p>Husband and Wife — Antenuptial Settlement — Fraud on Creditors— Knowledge of Wife.*</p> <p>In an action against a husband and wife to set aside an antenuptial deed of marriage settlement, on the ground that the same was given with intent to defraud the creditors of the husband, and that the wife had connived at the fraud, the entire testimony showed that the wife, before marriage, had no knowledge of any fraud in the settlement: held, that the court properly refused the request of the complainants to direct an issue out of chancery to try the question of fraud and connivance, and that a decree declaring the deed valid as to the wife was in accordance with the evidence.</p> <p>Same — Same—Proof of Fraud.</p> <p>Fraud cannot be presumed in an action to set aside a marriage settlement, but must be proved by clear and satisfactory evidence to have been concurred in by both parties. And this is so, irrespective of the amount of the husband’s indebtedness, and even though his whole estate is included in the settlement, †</p> <p>Eacy and Richardson, JJ., dissenting.</p>

In March, 1864, Morton Marge and Caroline EL, his wife, exhibited their bill of complaint in the circuit court of Albemarle county against Mary F. G. Yoss ; Julius M. Dashiell, and Mary T., his wife ; Emily Gr. Yoss ; Susan F. Yoss ; JohnS. Knox, Jr., trustee of Robert S. Voss, deceased; Douglas II.

Bassett French, Judge. Action by C. L. McCoull, Jr., against the city of Manchester for negligently permitting the obstruction of a street of the city, whereby plaintiff’s horse was killed., and he also sustained personal injuries. Judgment for defendant. Plaintiff appeals.

L. Holladay, Chancellor. Pauline B. Morriss, plaintiff, filed a bill against R. Gr. Morriss, trustee, Grarland Morriss, Walter C. Morriss, E. A. Morriss, M. H. Payne et ux., and R. T. Lacy et ux., to have the court sell certain unimproved property, in which she was life-tenant under her marriage settlement, and invest the proceeds in improved real estate. Decree for plaintiff, and defendants Payne et ux. and Lacy et ax. appeal.

<p>Appeal from circuit court, Culpeper county ; George P. Hughes, Judge.</p>

<p>Master and Servant — Defective Appliances — Sufficiency of Evidence.*</p> <p>Evidence that the “push-pole” furnished By defendant railroad for the purpose of pushing cars upon a track running parallel with the engine, while it should have been sound and strong, was in reality cross-grained and defective; that the tender lacked the usual socket in which to place the end of the pole for operation; that the pole slipped, broke, and that the deceased involuntarily grasped the pole, and was thrown in front of the advancing tender, and killed, sustains a judgment for plaintiff asking damages for negligence.</p> <p>Same — Negligence of Master — Pleading.</p> <p>A demurrer to a declaration in an action against a railroad which alleges that the accident at which plaintiff’s intestate was killed occurred “at or near” Wilson’s depot, and that the locomotive and tender, “or one of them,” ran against the deceased, and which, while distinctly alleging negligence, and that the company did not provide safe appliances, does not allege that it did not use “due, reasonable, and ordinary care to provide proper appliances” is properly overruled.</p> <p>Eauntleroy, J., dissenting.</p>

<p>Taxation — Tax Sales — Land Sold to State — Fees of Treasurer.</p> <p>Code Va. % 469, provides that lands sold for taxes shall continue to be charged to the owner until the two years allowed for redemption have expired. Farids so sold are taxed anniially, and required to be returned annually on the delinquent tax list: held, that the fact that lands have previously been sold and bid in by the commonwealth does not relieve the treasurer from the duty of again selling them for delinquent taxes under act Feb. 26, 1886, imposing upon him the duty of making delinquent tax sales, and where he makes such subsequent sales, and bids in the lands for the commonwealth, he is entitled to the fees provided by the act.</p>

Gr.. Whittle, Judge. Bill by Alfred Anderson, administrator O. t. a. of Nancy Wells, deceased, against David Ayres and John T. Blankenship, to remove said Ayres from his position as trustee in a deed of trust executed by said Blankenship to secure a debt due said testatrix. Decree for complainant, and defendant Ayres appeals.

<p>On rehearing. For statement of facts, see former opinion, 5 S. E. Rep. 690.</p>

<p>Action on Rent Note — Plea in Abatement — Case at Bar.</p> <p>In an action to subject the land of a debtor to the payment of a judgment, the land was rented by order of court to the debtor himself, and he executed to the commissioner five notes for the rent. Two of the notes were paid, and on default in the payment of the third proceedings were taken against the debtor and his sureties, which resulted in an order for the re-renting of the land for the term of one year, for enough to pay the amount due on the rent note. This judgment was suspended, but, instead of taking an appeal, the debtor obtained an injunction against the enforcement of the decree, and from the order dissolving the injunction, and from the order for re-renting, the debtor appealed. This appeal and supersedeas the debtor set up in a plea in abatement in an action against him on another of the rent notes: held, that it was proper to overrule the plea, and enter judgment “subject to the control of the court,” in the action on the first note.</p> <p>Judgments — “Subject to Control of Court” — Writ of Error.</p> <p>As the judgment was entered “subject to the control of the court” in the former action, there was no occasion for a writ of error.</p>

<p>Petition for writ of prohibition.</p>

<p>Wills — Bequests to Corporations — Case at Bar.</p> <p>A residuary bequest to “the Trustees of the General Assembly of the Presbyterian Church in the United States, commonly known as the ‘Southern Presbyterian Church,’ the same being a body corporate, as I am advised,” the beneficiary being a corporation created by the laws of Korth Carolina for the purpose of carrying on the work of Christian education and missions, publishing and diffusing religious literature, and building and supporting Presbj'terian churches, is not rendered invalid by Const. Ya., art. S, ? 17, which forbids the incorporation of any church, as the beneficiary is not an incorporated church. Poliowing Trustees v. Guthrie, ante, 318.</p>

<p>Appeal from circuit court, Essex county.</p>

<p>Criminal Law — Venire Facias — Omission of in Record.</p> <p>Code Va. § 3156, provides that in civil cases no irregularity in any writ of venire facias shall be sufficient to set aside a verdict unless the party making the objection was injured thereby, or unless the objection was made before the swearing of the jury. By Act Jan. 18, 1888, this provision is made to apply to felony cases: held, that this does not apply where the record fails to show an3r venire in a felony case, and the omission of the writ is a fatal error.</p>

<p>Secondary Evidence — Administrator’s Bond — Loss of Record.</p> <p>The entry in a “fiduciary hook,” in which Code Va. 1849, c. 132, l 1, and Code 1860, c. 132, § 1, required the clerk of the court to keep a record of personal representatives and their sureties, is, in the absence of the bond and other records, which were lost during the war, sufficient to show the fact of the suretyship of the .persons named therein. Hinton and Richardson, JJ., dissenting.</p>

<p>Appeal from circuit court, Wari'en county.</p> <p>Suit in equity by Barley’s executor and others against Stinson to settle partnership accounts. Decree for plaintiffs. Defendant appeals.</p>

This was an action of trespass on the case brought by D. C. Lindamood’s administrator against the Norfolk & Western Eailroad Company for the negligent killing of plaintiff’s intestate. From a judgment for plaintiff, defendant brings error.

<p>Chancery Practice — Accounts—Case at Bar.</p> <p>On a creditors’ bill, it appeared that the debtor had executed a deed of trust on certain land to secure a note given to complainant and one given to another person; that the complainant had agreed that the latter note might have priority, but relinquished no other right; and that for this purpose the d’ebtor was allowed to cut timber on the land, and apply the net proceeds to the payment of the said note: held, that a decree as to the amount due, based on a commissioner’s report, should be set aside, where evidence showed that a part of the proceeds of the timber had been applied to an old indebtedness,, instead of to the note mentioned in the deed of trust, and that a certain amount of timber had been cut and sold, and that less than half of this amount had been credited as payment on the'note, and that these errors were not remedied in the decree.</p>

<p>Railroads — Injury to Employee — Contributory Negligence — Case at Bar.</p> <p>Plaintiff, a brakeman, was injured while attempting to couple with a “short shackle,” which he was holding up with his hand, instead of using the coupling stick, as the rules of defendant railroad required. The injury would not have happened if he had used •the coupling stick: held, that he could not recover.</p>

'Appeal from circuit court of city of Danville. Bill by the Commercial Bank and. others against Sue 11. Hutchings’ administrator. Decree,, from which defendant appeals.

C. Lamb, Chancellor. Bill by the Commercial & Farmers’ Bank and others against John Enders Robinson and others to subject defendants’ interest in land to the satisfaction of complainants’ judgment. From a decree in complainants’ favor, defendants appeal.

<p>Equity Judisdiction — Injunction—Enforcement of Lien — Case at Bar*</p> <p>Defendant, being about to start a newspaper, procured sufficient money to buy a printing outfit from complainant, who, to secure himself against loss, reserved a monthly rent sufficient to pay interest on his outlay, and to cover wear and tear. It was provided that defendant should become absolute owner of the printing outfit on his refunding its cost to complainant in six quarterly payments, but he made no such payment, and paid only two months’ rent. ■To secure his debt to complainant, defendant gave him an order on the receiver in a chancery cause for what might come to him therein, and complainant applied what he received on this order generally to these and other claims held by him against defendant without objection on defendant’s part: held, that a court of equity had jurisdiction to restrain defendant from disposing of the printing outfit as his own, and to ascertain and enforce complainant’s, lien on the property. Dacy, J., dissenting.</p>

Ingram, J udge. Action qf covenant by Heth, trustee, against the Manchester Paper-Mills Company, for rent for water privilege. Erom a judgment for plaintiff, defendant brings error.

Action by Charles M. Langhorne against the Eichmond Eailway Company, otherwise known as the Eichmond City Eailway • Company and the Eichmond Eailway & Electric Company. From a judgment sustaining a demurrer to his declaration, plaintiff brings error.

<p>Criminal Law — Verdict—Reference to Indictment.</p> <p>Where, upon a sufficient indictment, the jury, by their foreman, indorse the following verdict: “We, the jury, find the prisoner, H. R., guiltjr, and fix his punishment at eighteen years in the penitentiary,” the verdict is not erroneous in failing to refer explicitly to the indictment.</p> <p>Same — Charge of Clerk.</p> <p>The clerk, in the presence of a prisoner, against whom a jury had just returned a verdict of guilty, propounded to the jury the following: “How say you? Is he guilty of the offense whereof he stands indicted, or not guilty’ ’: held, that said charge of the clerk was sufficient. .</p> <p>Same — Same—Errors Cured after Verdict.</p> <p>After verdict it is too late to take advantage of an irregularity in the charge of the clerk to the jury, the same being cured by section 3156, Code 1887.</p>

Action by H. W. Harrison against city of Roanoke for damages caused by the defective condition of a cross walk. Judgment for plaintiff. Defendant brings error.

<p>Wills — Construction of — Nature of Estate — Discretion in Trustee to Sell Life Estate — Case at Bar.</p> <p>Testatrix devised a tract of land, and all her personal property, in trust for the benefit of her niece, — the land for life, and the personal property for her sole and separate use, — and providing that at the death of E., if she die without issue living, the land should go to the children of one H., but if the trustee deemed it necessary, for the comfort and support of E., to sell the land and use the purchase money, he was authorized to do-so, with remainder of real or personal estate arising from such sale to go to the children of H. The trustee did not sell the land, as it was not necessary to do so, for E.’s support. E., dying without issue, devised the land to her husband: held, that E. took only a life estate in the land, and at her death the remainder, in fee simple, vested in the children of H.</p>

W. Williams, Judge. One Taylor was found guilty of murder in the first degree, and sentenced to be hanged. To a judgment entered on said verdict, he brings error.

W. Williams, Judge. One Weatherman was found guilty of murder in the first degree, and to a judgment entered on the verdict brings error.

An action by the administrator of William H. Trowbridge against the Danville Street-Car Company for causing death of the deceased. Judgment for defendant. Plaintiff brings error.

W. Williams, Judge. Action by Roger’s administrator against the Bertha Zinc Company. From an order declaring the summons void as an alias summons, plaintiff brings error.

<p>Error to circuit court, Tazewell county ; S. W. Williams, Judge.</p> <p>Bees Vance was found guilty of murder in the second degree, and brings error.</p>

<p>Appeal from circuit court, Bland county ; S. W. Williams, Judge.</p> <p>Bill by lezrell Robinett’s heirs against James F. Eobinett, administrator of James Eobinett, deceased. Decree for complainants, and defendant appeals.</p>

<p>Bill of Exceptions — Time of Presenting.*</p> <p>If there is no exception nor bill of exceptions at the time of a ruling, nor during the term, a motion for a bill of exceptions at a ' subsequent term comes too late.</p>

J. Leake,. Chancellor. Action by W. M. Parish against C. M. Blackford and others to determine the respective rights of the creditors of the Richmond Brick Company and Snead & Scott. From a decree of the chancery court, defendants Kara and Hickson appeal.

<p>Error to circuit court, Franklin county; S. Gr. Whittle^ Judge.</p> <p>William Robertson was convicted of murder, and brings error.</p>

Suit by one Hamilton against Green’s administrator. A claim against the estate of said Green in favor of J. M. Griffin, as administrator d. b. n. c. t. a. of A. W. Griffin, deceased, was sustained, and Green’s administrator appeals.

<p>Criminal Prosecution — Degree of Proof.</p> <p>A conviction of felonjr should be set aside when the "evidence makes a case only of suspicion or probability of guilt.</p>

Bill by John B. Carey and others against the Coffee-Stemming Machine Company and others to cancel subscriptions to the capital stock of defendant corporation because of fraud, etc. A demurrer to the bill was sustained, and plaintiffs appeal.

<p>Surface Water — Action against Railroad Company — Declaration.</p> <p>A declaration alleging that a railway company, by choking trp the ditches on its right of way, and the drains and ditches leading therefrom, caused water to flow on plaintiff’s land, the latter being on the plaintiff’s own land, is demurrable, it not being the duty of the company to keep unobstructed the ditches on property not owned by it.</p>

<p>Error to circuit court, Albemarle county.</p> <p>Erom a judgment in favor of the plaintiff below, W. C. Scott, the defendant, the Richmond & Danville Eailroad Company, appealed.</p>

Bill by John E. White against Clement B. Barclay, Charles Lennig, and others for partition and other relief. Said Lennig having died, the cause was revived against Nicholas Lennig and John B. Lennig, his executors. From a decree for complainant, said executors appeal.

William F. Proffit was imprisoned by order of the county court for refusing to work the roads in Louisa county, as required by law. He applied to the supreme court for a writ of habeas corpus, and was ordered to be discharged from custody.