Volume 10 — Virginia Reports

<p>Deed of Trust — Vendor’s Lien for Purchase Money.*— Though the title, under a deed, of trust will be subordinate to that under a prior deed of bargain and sale from the same party, for the same land, duly recorded, yet if it appear that anterior to the deed of trust there was a resale by the bargainee to the bargainor, of which there is proper evidence in writing, equity will hold that the land passes by the deed of trust, subject only to the lien for the purchase money due upon the resale, and thus the rights of the parties will depend upon whether such purchase money has been paid or not.</p>

This is the sequel of the case between the same parties, which was before this court in March 1822; reported 1 Rand. 102.

The facts of this case are stated in the opinion of the court. There was a verdict for the defendant; and Johnson’s executrix applied to this court for a supersedeas, which was allowed.

The appellee issued an execution, returnable to the clerk’s office, and directed to the sheriff of Berkeley county, against the body of the appellant j who surrendered property, and then gave a forthcoming bond, which recited that the property was in the hands of James Campbell, high sheriff of Berkeley county.

Moses Hughes senior, late of Nelson county, died in the year 1824, having first made and published his last will and testament, in which (inter alia) he devised and bequeathed as follows : “ I give, devise and bequeath to my two sons- Moses and James Hughes, in trust for the use and support of my daughter Polly Collins (the wife of Samuel Collins) and her children, during the natural life of my said daughter Polly, but not to be subject to the debts or the control of the…

Samuel Love instituted an action of debt in the district court of Fredericksburg, against Philip Fitzhugh and Presley Thornton, and declared for “¡£272. 15. sterling, the balance due on a bill for £ 1100 sterling, being the principal of a protested bill of exchange, together with damages thereon at the rate of fifteen per centum, charges of protest amounting to £2. 12. 9. sterling, and interest on the said principal at the rate of five per centum per annum, from the 8th day…

This was an application by Falconer and Haskins to the County court of King & Queen, for the establishment of a public landing at Walkerton in that county, on the Mattaponi river. The appellant Muiré opposed the application; but the County court established the landing; and upon appeal to the Circuit eourt, the order of the County court was affirmed. Whereupon, Muiré applied to this court for a supersedeas, which was allowed.

Freeland, Lenox &r Co. brought indebitatus assumpsit against the executors of Field, who was surviving partner of Field 8f Murray, and declared 1. upon a quantum valebant for goods, wares and merchandizes sold and delivered. 2. Upon a quantum meruit, for work performed. 3. Upon an assumpsit of the testator for goods, wares and merchandizes sold and delivered.. 4. Upon an insimul computasset, with the testator. The defendants plead non assumpsit, and the act of limitations.

In the county court of Nottoway, at April term 1837, a writing purporting to be the last will and testament of William Dunnavant, then lately deceased, was produced by Pemberton Dunnavant one of the executors therein named, and offered for probate. It was in the following terms: “ In the name of God, amen.

The appellees brought debt against the appellant in the county court upon a bond. Plea, Payment, and issue. Upon the trial of the cause, the plaintiff’s counsel moved the court to instruct the jury, that not more than eight years interest ought to be deducted, there being no evidence that any part of the principal or interest was paid ; but there was rio instruction given. Verdict and judgment for the principal debt, with interest from the 1st of April, 1797.

<p>The appellee brought an action of assault and battery and false imprisonment on behalf of herself and several of her children, against the appellant, in the county court. Plea not guilty, and issue. Five successive juries were sworn, but neither of them rendered a verdict. In consequence of which, the parties, by consent, transferred the cause to the district court, where it was docketed-and tried. The jury found that the plaintiff was free, and assessed her damages to $ 30 : which she released. The judgment of the court was, that she should recover her freedom with costs of suit: And Parish appealed to the court of appeals.</p>

Thornton and Mary his wife, who was the daughter of Philip Rootes the elder, filed their bill in the court of chancery against Franks, executor of Thorpe, one of the securities to the administration bond given by Philip Rootes and Thomas R. Rootes, sons and executors of the said Philip Rootes the elder, Shackleford, surviving executor of Shackle-ford, another of the securities to the said bond, and against the legatees of the said Shackleford,: Stating, That Philip Rootes…

This is the sequel of the case of the Bank of Washington v. Arthur & als. 3 Gratt. 173.

On the 15th August, 1791; John Miller, the plaintiff, entered, by virtue of a warrant, for 1000 acres of the land in question, in the surveyor’s office of Buckingham county; and on- the 25th July, 1796, by virtue of another warrant, he entered in the same office for 300 acres more, the residue of the land in question. The first entry is in these words: “ Buckingham county, sc’t. August 15, 1791. No. 61.

In March 1828, Jacob Weaver exhibited his bill against William F. Carter in the superior court of chancery holden at Fredericksburg, setting forth, that in 1822 he contracted to purchase of Carter a tract of land in Fauquier county, then estimated to contain 1022f acres, at the price of 25 dollars per acre; and the contract was reduced to writing on the 20th of November 1822, and signed and sealed by the parties.

<p>If, in ejectment, judgment be given for the defendant, and the plaintiff appeals; pending which, the appellee dies, the appellant cannot sue a scire facias against his heirs.</p>

<p>If the injury is immediate, trespass, and not case, is the proper action.</p> <p>A public officer is presumed to have done his duty until the contrary is shewn.</p>

<p>A bill of review must suggest error in law, or newly discovered matter, or it cannot be sustained.</p>

<p>Leven LucTcett, late of the county of Loudoun, deceased, having nine children, Francis, William, Ludwell, Horace, Matilda, Henry, Alfred, Leven and Robert, and having given Francis and William about 177 acres of land each, made a will dated August 24. 1824, whereby he devised to bis daughter Matilda 200 acres of land, and other lands equal in quantity or value to his sons Ltidwell, Henry, Horace, Alfred and Leven, and bequeathed to Francis and William 500 dollars each, to make their quantity of land equal to what he had devised to the rest of his children; then devised land to his wife for life, remainder to his son Robert, and bequeathed sundry specific and pecuniary legacies to his wife and children. This will he cancelled.</p> <p>He made another will, dated March 13.1825, whereby he made a similar provision in land for each of his children, except Francis and William; evincing the intention to give them land of 200 acres in quantity, or to the value of 5000 dollars, estimating the land at 25 dollars per acre; and in a codicil to this will he gave Francis and William pecuniary legacies, to make their land equal to that of the rest of his children. There appeared to be some uncertainty on the face of the will, whether the legacies to Francis and William were of four hundred or five hundred dollars each. William contended that they were of five hundred dollars. This will the testator also cancelled.</p> <p>He made a third will, dated also March 13. 1825, with a codicil thereto, dated December 19. 1825— wherein he evinced a similar intention to make an equal division among his children, excepting Francis and William, as to whom he omitted the legacies of 400 or 500 dollars, to equalize the lands he had given to them with those he had given to his other children. This will was written by the testator’s son Robert, then a minor, and signed by the testator, but was not attested. Francis and William Luckett were named the executors.</p> <p>The last will was presented for probate to the county court of Loudoun on the 14th of August 1827, by Francis Luckett one of the executors therein named, and probate refused because there was no attestation.</p> <p>On the next day, the 15th of August, the other two wills were presented to the county court. In the controversy which subsequently arose between the heirs of the decedent, two of the justices who sat in court on that day were examined as witnesses, to prove the purpose for which these wills were produced. According to the recollection of one of the witnesses, it was only for the purpose of comparing them with the last will, anc^ shewing that it conformed with them in the main ; ^ut according to the positive evidence of the other witness, one of the cancelled wills was offered for probate, and rejected.</p> <p>On the same 15th of August 1827, an agreement was entered into by Francis W. Luclcett, William F. Luckett, . Matilda D. Luckett and her husband Thomas II. Luckett, Horace Luckett, Luduiell Luclcett, Henry F. Luckett and Alfred Luclcett, under their respective hands and seals, reciting that an instrument purporting to be the last will and testament of Leven Luckett deceased had that day been presented to the court for probate, and owing to some legal informality rejected, and that it was the desire of the representatives of the said decedent, that his estate should be disposed of according to the tenour of said will; with a view to effect which, they the said parties covenanted and agreed to, with and amongst themselves, that in the division of the said estate they would abide by the said will. Letitia Lxiclcett the wddow, Leven Luckett, and Robert Luckett who was then a minor, though they never executed this instrument, yet assented to it, and desired that it should be carried into execution.</p> <p>I. The first suit was a bill exhibited by Horace, Thomas H. and his wife Matilda, Henry, Alfred, Leven and Robert Luckett, children of the decedent, and Letitia laickett his widow, in the superior court of chancery holden at Winchester, against Francis, William and Ludwell Luckett, for the purpose of having specific execution of the agreement of August 15. 1827.</p> <p>Francis and William Luckett, in their answers, resisted the specific execution, on the ground that they had executed the agreement without having ever read the last will, and under a mistaken belief that it contained the . . . . , , . . , Same provision giving them each a legacy in money to equalize their shares of land, which was contained in the two former cancelled wills. Ludvjell Luclcett also, by his answer, objected to the specific execution of the agreement, because it would work injustice to his brothers Francis and William, although it was a matter of indifference to him, personally, whether the agreement were specifically enforced or not.</p> <p>II. The other suit was brought in the same court, by William Luclcett against all the other parties, alleging, that he had executed the agreement of August 15.1827 without having read the last will, or either of the two former wills, and under a mistaken belief that all the wills contained the equalizing provision in favour of himself and his brother Francis; and alleging further, that the agreement refers expressly to the will offered for probate on the same day with its date, and only the cancelled wills were that day offered, so that the agreement does not, literally taken, confirm the last will, and, in effect, leaves it uncertain which was the will thereby confirmed ; and therefore, praying, that the agreement should be set aside.</p> <p>The answers of Francis and Ludwell Luckett referred to their answers in the first suit. Robert, Alfred, Letitia the widow, Horace, Henry, and Thomas H. the husband of Matilda Luclcett, by their answers, earnestly insisted on the agreement. The answer of Horace Luclcett alleged positively, that both Francis and William Luckett well knew, when they entered into the agreement, that the last will contained no provision for making their lands equal to 200 acres each; and that the agreement was intended and understood to refer to that will, and no other.</p> <p>Many depositions were taken and filed on both sides. But it did not clearly appear whether Francis and William Luckett, when they executed the agreement, were or were not in ignorance and under mis- . take, as they alleged, respecting the provisions of the last will. The evidence developed some circumstances which seemed to make it probable that they were, and others leading to the opposite conclusion.</p> <p>The causes were heard together in the court of chancery; when the chancellor decreed specific execution of the agreement, according to the prayer of the first bill, and dismissed the other with costs. Francis and William Luckett appealed to this court; both of them from the decree in the first suit, and William Luckett from the decree dismissing his bill.</p>

<p>If there be several partners, and one of them, after the co-partnery is dissolved, assumes a partnership debt, hut afterwards pleads the act of limitations jointly with the other partners, the assumpsit may be given in evidence; for the plea of non assumpsit admits that the defendants did once assume.</p>

This was a motion for a writ of supersedeas to a judgment of the district court. The petition stated, that Jjyle obtained a judgment against Bowyer, and issued a ca. sa. upon it: To which the deputy sheriff made a return* in these words : “ Executed, and bond taken for the prison rules” That the sheriff afterwards voluntarily permitted Bowyer to escape, and thereby subjected himself to a motion, under the act of assembly, for the amount of the execution.

Lowry brought trover for three slaves, Esther, Will and Lucy, in the district court. Plea not guilty and issue. The jury found a verdict for the plaintiff, subject to the opinion of the court upon a demurrer by the defendant to the plaintiff’s evidence ; which stated, 1.

I. John Richards exhibited a bill in the superior court of chancery of Winchester, against John, George, and Benjamin Grayson, shewing, that he recovered a judgment against John and George Grayson, in August 1822,. for 502 dollars, with interest and costs, and they having been duly surrendered by Benjamin Grayson, who was t^eir special bail in the action, and being in custody, took the benefit of the statute for the relief of insolvent anj were discharged, surrendering, in…

<p>Robert Bristow, a British subject, owned a tract of land in Virginia, when the revolution commenced, but died in Great Britain during the year 1776 ; and devised all his estate to his son Robert, who was an infant, and resided with him. In 1779, an inquisition was taken, and the land es-cheated as the property of Robert Bristow the elder. The public agent, long after the return of peace, was about to sell the land, when Robert Bristow, the son, exhibited his bill in the superior court of chancery, to stop the sale, and have the land restored to him, on the ground that the inquisition was defective, and the treaty of peace had forbid future confiscations. The answers insisted, that the father and son were both British subjects, and the land liable to escheat at the date of the inquisition •, which time had confirmed, and the subsequent treaty of peace had not affected. The court of chancery decreed restitution of the land, with an account of the profits; and the defendants appealed to the court of appeals.</p>

At the December term 1847 of the County court of Campbell, the nuncupative will of Bryan W. Nowlin was propounded for probat by Robert Scott, a legatee therein, and the probat was resisted by the administrator and by some of the next of kin. At the August term 1848 of the court, the will was admitted to pro-bat ,• and there was an appeal to the Circuit court.

At the April term 1851 of tbe Circuit court of Prince George county, a paper, purporting to be the will of Bichard Sturdivant deceased, was propounded for probat by Daniel L. Sturdivant and Daniel Heath, two of the legatees therein named; and the probat was resisted by Bichard W. Birchett, one of the heirs at law of the testator. The court refused to admit the will to probat; and Sturdivant and Heath applied to this court for an appeal, which was allowed.

This is an appeal from a judgment of the district court of Suffolk, given in favour of the defendant, in an action of debt, brought by Stone fy Co. against Patterson. The declaration, as amended, is in debt for 13,000 dollars.

Perry brought indebitatus assumpsit against the defendants in the district court, and declared for money had and received. Plea non assumpsit; and issue. Commissions were awarded by consent to take the depositions of Blake, Yard, Walsh, Turner, White and others.

Thomas lord Fairfax, proprietor of the northern neck of Virginia, by his last will and testament, dated the 8lh of November 1777, and duly executed and proved to pass and charge real estate, bequeathed to his nieces Frances Martin, Sybella Martin and Ann Susanna Martin, annuities of ¿£100. sterling each, for and during their natural lives; the payment of which he charged upon the real estate devised by the will to his nephew Fenny Martin.

<p>If the damages found by the jury are more than those laid in the writ, the court ought to award a new trial, unless the plaintiff will release the excess.</p> <p>If the damages are left out of the declaration, as the omission might be amended by the writ, the court of appeals will consider the declaration as, in fact, filled up with the damages laid in the writ.</p>

<p>This was a controversy respecting a codicil to Neil Calvert’s will. The codicil was opposed upon the ground of the want of assent in the testator; it being alledged, that although the testator signed the paper, he did not know, that some of the clauses were in it; or, at least, that he did not know the effect of them. The hustings court rejected the codicil; but the district court having reversed the judgment, and established the codicil, Tucker appealed to the court of appeals.</p> <p>The first question made was, Whether the appellants were to be allowed to go into the enquiry; or whether they were not confined to a discussion of the testator’s sanity and signature ?</p> <p>The court held, that the appellants might go into the whole evidence, and were not confined to the enquiry into the testator’s sanity and signature.</p> <p>The appellee then proceeded to prove the sanity and signature :</p> <p>Moore stated, That the codicil was read to the testator; who made some objections to certain parts, which were corrected ; and then it was partially, or wholly (he believes wholly) read to him : after which he signed it; and the deponent, and the other witnesses subscribed it.</p> <p>Wood says, That the testator signed the codicil, and the deponent witnessed it. That when the codicil was first read to the testator, he made objections to certain parts, which were corrected; and then he executed it. That he does not know that the whole was read; but it appeared to him, at the time, that John Calvert was reading the whole. That the witness was requested by John Calvert to go with him to attest the instrument; but does not recollect that any thing was said about the will. That the testator, although weak and low, was in his senses.</p> <p>Ingram states, That the testator told John Calvert on the Saturday before he died (which happened on the following Monday), that he would alter his will, and charge his lands with the payment of his debts; and that, if he would come up the next day, Tucker would be there, and it should be done. That John read a paper which he said was right, and repeated, that if he would come next morning, Tucker would be there, and it should be done. That she believes the paper was written upon one side only. That there was a revoking clause in the paper, as read. That the testator, after John went away, said it was perfectly reasonable ; and that Tucker was a man of too much honor to refuse it. That when her sister returned from the testator’s house, she said, that she expected the will would he good for nothing, as the instrument had the word revoking in it, which she thought would destroy the will.</p> <p>Madden or Martin, says, That after the testator’s death, John Calvert told Tucker, that, in getting the codicil, he did not intend to injure him; that it was a point of law; and that both papers would be handed into the court, who would decide. That he refused to shew the paper; but said, that Tucker would see it was not intended to injure him.</p>

In August 1813, John Flinn recovered a judgment in an action of debt in the county court of Greenbrier, against Moses Mann executor of… Held: that Moses Mann’s estate ought to be charged with the principal and interest of the ¿£348. the value of the specific legacies which he had delivered to the legatees of his testator; and that it was not entitled to credit, as against Flinn’s administrator, for the payments made to Mitchell’s administrator and to Meze; and, therefore,…

Hipkins died testate after the year 1792, leaving a wife and grand children; but no child alive. The wife renounced his will; and the principal question in the cause was, What proportion of her husband’s estate the wife was entitled to ? The chancellor decreed dower in the lands and slaves ; and a moiety of the goods and chattels in absolute property. Bernard, the executor, and the grand children, appealed to the court of appeals.

<p>Af the October term 1851 of the Circuit court of Accomack county, a paper purporting to be the will of George Nock deceased, was propounded for probat by the executors therein named; when Catharine Nock, the sister and heir at law of the said Nock, appeared and opposed the admission of the paper to probat. The only question of law in the case, was whether the paper was duly attested in the presence of the testator. Upon that question the testimony is fully stated in the opinions of Judges Daniel and Moncure. The paper was admitted to probat in the Circuit court. And thereupon, Catharine Nock applied for and obtained an appeal to this court.</p>

<p>The endorsement, by the clerk of the court of chancery, that the suit is brought to attach the effects of the absent defendant, is sufficient to restrain the application of them to any other use, until the plaintiffs’ demandas satisfied.</p>

<p>The question was, Whether the legislature had power to order the glebe lands to be sold, and the money applied to the use of the poor ? The court was equally divided in opinion.</p> <p>The court of chancery had jurisdiction in the case; and might have ' awarded an injunction to prevent the sale, if the church had shewn a good title.</p>

In' the county court of King and Queen, the administratrix of Thomas Collins declared in assumpsit against Francis Row, otherwise called Francis Row executor of George T).

<p>Debt, in the circuit superior court of James City and Williamsburg, in the name of Littleton W. Tazewell governor of the commonwealth, suing at the relation of Elizabeth Lawrence executrix of Eleanor Maynard deceased, against William M’Candlish and five others, obligors in the official bond given by M' Candlish as marshal of the late superior court of chancery for the district of Williamsburg.</p> <p>The declaration set forth the bond, which was in the penalty of 20,000 dollars, with condition that M’Candlish should pay over all moneys which he might receive by virtue of his office, to the persons entitled to receive the same, and should discharge faithfully all the other duties appertaining to the said office, as long as he should continue in the same. Seven breaches of the condition were assigned. In each of them it was , . _ set forth, that on the 19th of July 1822, the said superior court of chancery, in a suit between Richard Blow plaintiff and the said Eleanor Maynard defendant, then pending therein, but since determined, awarded an injunction to restrain the defendant from selling or removing certain slaves in her possession until the further order of the court, and directed the marshal to take possession of the slaves, and (in case the defendant should not, within ten days, give to the plaintiff bond with security in double their value) to hire them out until the end of the year, and from year to year after-wards until the further order of the court. And then</p> <p>1. The first assignment alleged, that in pursuance of the said order the said marshal took possession of the slaves, the property of the said Eleanor Maynard, but did not perform the other duties required of him by the said order, but so improperly and unfaithfully conducted himself in the premises, that the hires and profits of the slaves for the residue of the year 1822, and for the years 1823 and 1824, amounting to 720 dollars, were totally lost to the said Eleanor Maynard, to whom the said hires and profits belonged, and who was entitled to receive them from the said marshal, as by reference to the record and proceedings in the said suit, remaining in the clerk’s office of the said circuit superior court of law and chancery, would more fully appear.</p> <p>2. The second assignment alleged, that in pursuance of the said order the said marshal took possession of the slaves, the property of the said Eleanor Maynard, and hired them out until the end of the year 1822, and afterwards for the years 1823 and 1824, and for the hires, amounting to 720 dollars, took bonds, notes and securities, which he converted to his own use, whereby all the hires were lost to the said Eleanor Maynard, to whom the said hires, and the said bonds, notes and securities taken therefor, belonged, as by reference to the record and proceedings in the said chancery suit, remaining in the office of the said circuit superior court, would more fully appear.</p> <p>3. The third assignment alleged, that in pursuance said order the said marshal took possession of the slaves, the property of the said Eleanor Maynard, and hired them out, and received and collected the hires, amounting to 720 dollars, which said hires belonged to the said Eleanor Maynard, who was entitled to receive them from the said marshal, as would more fully appear on reference to the record and proceedings in the said chancery suit, remaining in the office of the said circuit superior court; but that the said marshal did not pay over the said hires to the said Eleanor Maynard, though requested to do so, but converted the same to his own use, whereby they were totally lost to the said Eleanor Maynard in her lifetime, and to her executrix since.</p> <p>4. The fourth assignment alleged, that in pursuance of the said order the said marshal took possession of the slaves, the property of the said Eleanor Mayna-rd, and hired them out, and received and collected the hires, amounting to 720 dollars, which said hires belonged to the said Eleanor Maynard, who was entitled to receive the same, as by the record and proceedings in the said suit, remaining in the office of the circuit superior court, wrould more fully appear; that after-wards the said superior court of chancery made an order requiring the said William HP Candlish, who had been removed from the office of marshal, to deposit the amount of the said hires in bank to the credit of the court in the said cause, and to render a report of all his transactions under the previous order of the 19th July 1822, as would more fully appear on reference to the record and proceedings in said suit, remaining &c. but that the said M’ Candlish did not deposit the amount of the said hires in bank, nor render a report of his transactions, as required by the said order of the court, but wholly failed and refused to comply with the requisitions of the same, and so improperly and unfaithfully conducted himself in the premises, that the said hires were wholly lost to the said Eleanor Maynard, to whom they belonged, and who was entitled to receive them, as would more fully appear by reference to the record and proceedings in the said chancery suit, remaining &c.</p> <p>5. The fifth assignment alleged, that in pursuance of the said order of the 19th July 1822, the said M'Candlish, marshal as aforesaid, took possession of the slaves, the property of the said Eleanor Maynard, and hired them out, and took bonds, notes and other securities for the hires, which amounted to 720 dollars, to which said bonds &c. the said Eleanor Maynard was entitled, as would more fully appear on reference to the record and proceedings in the said chancery suit, remaining &c.—that afterwards the said superior court of chancery made an order that the said M'Candlish, who had been removed from the office of marshal, should render a report of all his transactions under the previous order of the 19th of July 1822, and deliver all bonds, notes or other securities for the hire of any of the said slaves, to the marshal of the court, to be collected by him, as on reference to the record and proceedings in the said suit, remaining &c. would more fully appear; yet the said M’Candlish neither rendered a report of his transactions aforesaid, nor delivered the said bonds &c. or any of them to the marshal, as required by the order aforesaid, but wholly failed and refused to comply with the requisitions thereof, whereby the said hires, and the said bonds &c. taken therefor, were wholly lost to the said Eleanor Maynard, to whom they belonged, and who was entitled to receive the said bonds &c. as by reference to the record and proceedings in the said suit, remaining &c. would more fully appear.</p> <p>6. The sixth assignment alleged, that in pursuance of the said order of the 19th July 1822, the said' M’Candlish, marshal as aforesaid, took possession of the slaves, the property of the said Eleanor Maynard, an¿ h;red them out, but took no bonds, notes or securities of any kind for the hires, as, in the faithful discharge of his office, and in the execution of the said order, he ought to have done, whereby the said hires, amounting to 720 dollars, were wholly lost to the said Eleanor Maynard, to whom they belonged, and who was entitled to receive the same and the bonds &c. which should have been taken therefor, as by reference to the record and proceedings in said chancery suit, remaining &c. would more fully appear.</p> <p>7. The seventh assignment alleged, that in pursuance of the said order of the 19th July 1822, the said M’ Candlish, marshal as aforesaid, took possession of the slaves, the property of the said Eleanor Maynard, and hired them out, taking bonds, notes or other securities for the hires, and afterwards, without any order of the court authorizing him to collect the said hires, did collect and receive the same, amounting to 720 dollars, and gave discharges and acquittances therefor, and delivered up the bonds &c. to the hirers who had executed the same, whereby the said hires were wholly lost to the said Eleanor Maynard, to whom they belonged, and who was entitled to receive the same and the bonds &c. so taken therefor, as by reference to the record and proceedings in the said suit, remaining &c. would more fully appear.</p> <p>The declaration concluded with averring nonpayment of the penalty of the bond-, to the plaintiff, or to either of his predecessors in office.</p> <p>The defendants demurred generally to the whole declaration, and to each and every assignment of breaches therein set forth. On argument of the demurrers, the court held that the law thereupon was for the defendants, and rendered judgment that the relator take nothing by her bill, and that the defendants recover against her their costs. To which judgment a supersedeas was allowed by the court of appeals.</p>

<p>The county court of Southampton, at July term 1835, admitted to probate, as the last will and testament of William L. Rochelle deceased (so far only as to pass personal estate) an instrument of writing in pencil, in the following terms:</p> <p>“ To mrs. Rochelle in fee Emeline and child Charlotte, Phcebe, Washington, Tine and Lizza, all my beds and furniture, carriage and harness. All loaned during 0 0 widowhood, real and personal. Discretionary with ex’or, for good reason, to sell negro. Mary Frances, Martha Eliza to be educated and clothed. At the death of mrs. Rochelle having no child by me, the whole to my brother’s children (horse Bullet to Jno. Turner) the plantation and hands to remain as at present. Harry and Jerry to be kept at the carpenter’s trade. My lands to belong to John and Wm. and girls to receive more negroes.”</p> <p>This instrument was propounded to the county court for probate by Frances Rochelle. The probate was opposed by Ann Rochelle, the widow of the decedent; and from the sentence of the county court, she appealed to the circuit superior court of law and chancery.</p> <p>On the hearing of the appeal, two witnesses were examined, and their testimony spread upon the record.</p> <p>1. S. Barker testified, that he was at the decedent’s house on Sunday the 1st of March, at which time the decedent was very ill, and confined to his bed. During the evening of that day, decedent told the witness that he wished him to do some writing for him. Witness expressed his perfect willingness to do so, but suggested that it would be better to defer the business until the next morning. He remained all night with the decedent; who, the next morning, again introduced the subject, and remarked that he wished the witness to write his will. However, he did not urge the witness to write the will at that time; and it was agreed between them, that the witness should write it the next day, or the next time he visited the decedent. He did visit him again, on the following Wednesday; when decedent again spoke to the witness about writing his will. Witness asked whether he should have a table prepared for the purpose, in the room where decedent was then lying? Decedent answered, that he did not wish the witness to write his will at that time; but desired him to make a memorandum, by which the will u . should thereafter be prepared. Much conversation then took place between them, as to the disposition which decedent intended to make of his property, and the mode in which he wished it to be managed. In the course of this conversation, decedent said that he wrnuld not, upon any consideration, die without a will; that there were many considerations inducing him to make one: and he then staled, as reasons why he ought to make a will, that he did not wish mr. Land, his brother in law, to enjoy any part of his estate, and that he had always promised his sister Fanny to educate her two little girls,• one of whom was then living with the decedent, and going to school at his expense. In the same conversation, decedent expressed a wish to appoint the witness his executor. He also stated, that he had had timber cut to build a dwelling house, and wdshed the house to be built ,• that he did not wish the land attached to the plantation on which he lived, to be cleared, but merely that the branches &c. within the enclosure should be cleared; that he desired the land he owned in Sussex, which was principally in woods, to be cleared ; and that he wished the witness to be allowed full and adequate compensation for his trouble,—meaning, as the witness supposed, compensation for settling the estate. Witness then left the decedent, and went into another room, in which there were several persons. There he found a small piece of paper, which he carried into the room where the decedent was lying, and proceeded immediately to make out, in pencil, under the direction of the decedent, the memorandum by which the will was to be prepared; which memorandum is the same writing now in controversy. After the witness had prepared the memorandum, he took a seat on the bedside, and read the same to the decedent ; who, at the same time, looked over and examined it. Witness asked him if it was right; to which he replied that it was. At the time of preparing the memorandum, decedent was in his perfect senses, and competent to make a will. It was understood by decedent that the witness had to go the next day to Sussex county court, and that he would not return to decedent’s house until the evening of the ensuing friday. In consequence of bad weather, the witness was unable to return on friday; and on Saturday, when he arrived at the decedent’s house, he found him dead. At the time of writing the memorandum, there was no ink (as the witness understood) in the room, though there may have been ink in the house. The decedent explained to the witness, that by the name “ mrs. Rochelle,” mentioned in the memorandum, he meant his wife; by the names “ Mary Frances” and “ Martha Eliza,” therein mentioned, he meant the two daughters of his brother Nathaniel; by the name “ Jno. Turner,” therein mentioned, he meant John A. Turner;. and by the names “John” and “ Wm.” therein mentioned, he meant the two sons of his said brother Nathaniel. This brother was dead at that time. The decedent had another brother, who had never been married. The witness stated, that he should have prepared the will pursuant to the memorandum, uninfluenced by the conversation which had previously taken place between the decedent and himself, except that he should have concluded the will with a clause appointing an executor, but leaving a blank for the executor’s name, as he did not himself wish to qualify, though he believes the decedent expected and desired him to do so: that in writing the will, he should not have imbodied any direction that the woodlands in Sotithampton should not be cleared, or that a dwelling house should be built by the executor, out of timber which the decedent had caused to be prepared for the purpose; because no such directions were contained in the memorandum, and the witness regarded that as the only proper authority to be pursued in preparing the will. He further stated, , , , ^ , , , that when he wrote down in the memorandum the words “ beds and furniture,” he asked the decedent what he meant by them; to which the decedent replied, that he meant his beds and all his household furniture.</p> <p>2. G. Rawlings testified, that having gone on thursday to see the decedent, he found him very sick in bed, but in his perfect senses. Decedent told the witness, that he had given mr. Parker the heads of his will the day before, and that mr. Parker was to be there with the will on the next day. On Saturday the witness again visited the decedent; who remarked to the witness on his arrival, that “ he was compelled to die.” Some time afterwards, he expressed great surprise at mr. Parker's absence, and anxiety for his return ; saying, that if he would come and fix his business, he (the decedent) would die perfectly satisfied; that his will was not all the business he wanted with mr. Parker; but that he must go and leave it all, for that he should not live until night. The decedent did not inform the witness in what way he intended to dispose of his property, nor what directions he had given to mr. Parker for making out the memorandum or heads of his will. Decedent, at the time of his death, had been married about two years. He had then no child born ; but he left his wife pregnant, and about two months after-wards she was delivered of a child, which was still living.</p> <p>The circuit court affirmed the sentence of the county court; and on the petition of Ann Rochelle the widow of the decedent, a judge of this court allowed her an appeal from the judgment of affirmance.</p>

<p>In April 1847 James Dickey applied for and obtained from the Circuit court of Grayson county, an injunction to a judgment for six hundred dollars, with interest and costs, recovered against him by Jesse A. Reeves. In his bill he charged that the note on which the judgment was recovered, was given for the price of one-sixteenth of a tract of seventy-five acres of land in the county of Grayson, on which it was represented there was a silver mine. That before his purchase Reeves represented to the plaintiff that the ore on the land had been tested, and had been ascertained to be silver ore. That the plaintiff had made no experiment himself, and knew nothing of the quality of the ore, or what kind of ore it was; but relied wholly on the representations of Reeves. That after his purchase the plaintiff and others who had an interest in the mine, proceeded to search for ore, and to make some experiments; but they could find no silver ore; and that the ore found on the land had been tested and ascertained to be iron. That it was untrue as stated by Reeves, that the ore had been tested and ascertained to be silver, prior to plaintiff’s purchase, and that said representation was fraudulent.</p> <p>The plaintiff further stated that the land on which this silver mine was supposed to be, was held in the early part of the year 1845, by Richard Billings, by virtue of a title bond executed to him by Charles Doughten. That after the pretended discovery of the silver ore, Billings commenced to sell interests in the said mine to various persons; and amongst others, he sold to Jesse A. Reeves one-fourth of the whole interest in the mine. That this contract was conditional that if the ore upon the land proved to be good silver ore, he was to pay to Billings five hundred dollars; but if the ore did not prove to be silver the contract was to be void. That afterwards, in the month of March 1845, Reeves sold to the plaintiff one-fourth part of his interest for six hundred dollars, for the payment of which the plaintiff executed his bond payable in six months. That after the experiments made as before stated, by the parties having an interest in the mine, the plaintiff determined to make a further experiment, and for that purpose went upon the land where the mine was represented to be, when Billings refused to permit him to work upon it, he being in possession of the land and alleging that those, and among them Reeves, who had purchased from Mm an interest in the mine, had refused to pay him. That Reeves, as plaintiff had understood and believed, had not paid any part of the purchase money, but had refused to do so. That he could not make a sufficient title to the interest he had sold the plaintiff. That he had not acquired the legal title to any part of the land. That Doughten and Billings were not vested with the title; but that it was outstanding in another person, upon whom there was no obligation to convey it to any one; so that if the ore in the mine was really silver, the plaintiff was advised that under Ms contract with Reeves, he ought not to he compelled to pay the purchase money until the title was secured to him.</p> <p>Reeves answered the bill. He admitted the facts as to Billings’ title to the land under a title bond from Doughten; and that he had purchased from Billings upon the condition stated in the bill. But he denied that the plaintiff relied wholly on his representations in reference to the mine a'nd the quality of the ore; or that he . had made any such representations to the plaintiff as he stated in his bill; and he alleged that before the plaintiff purchased he had an experiment made with the ore. He further stated that the plaintiff knew, before his purchase, the terms on which defendant had purchased from Billings; and that he knew further, that after he had agreed to purchase, defendant had agreed to pay Billings. That plaintiff had endeavored to prevent Billings from fulfilling his agreement with the defendant, and had procured him to forbid plaintiff’s working the mine that he might have an excuse for putting such a charge in his bill. The plaintiff knew the condition of the title when he purchased; and in fact there was no difficulty about it, as defendant hoped would fully appear.</p> <p>The testimony in the cause showed that Dickey did, before his purchase, test the ore; and there was a total absence of any proof that Reeves made any representations to him as to the character or quality of the ore. Whilst the cause was pending, Doughten executed a deed by which he conveyed the land to Billings; and' Billings conveyed to Reeves.</p> <p>The deposition of Jesse Austin was taken, and he stated, that he claimed a part of the land sold by Doughten to Billings; and he stated further, that he had executed a bond to Reeves and others, by which he had bound himself that if any part of the mineral was on his land they should have it on the same terms on which they were to get it from Billings.</p> <p>In 1849 the cause came on to be heard, when the court perpetuated the injunction; whereupon Reeves obtained an appeal to this court. twelve thousand dollars, and executed to him his note for eight hundred dollars, which he afterwards paid. At the same time Peay executed a deed bearing the 9th of June 1836, by which he conveyed to Morrison the real estate purchased of him upon the condition that if Peay paid the note of eight hundred dollars, with interest from the 11th of April preceding, when it fell due; and further, if Morrison should fail to collect from the Clarkes the bond for twelve thousand dollars, or any part thereof, with its interest, then if Peay, his executors, &c. should pay the same, or any balance that should be due thereon, according to the terms thereof, to Morrison or his assigns, then the deed to be void. But it was expressly agreed between the parties, that if the said bond for twelve thousand dollars could not or should not be paid from the proceeds of any sale which might take place under the deed of trust by which it was secured, Morrison was not to be required to pursue the obligors in the bond personally; but might have immediate recourse to this mortgage for any balance either of principal or interest which might be due and unpaid on said bond.</p>

<p>1. Upon a bill for a partition of land, if tbe title of tbe plaintiffs is doubtful, the court prior to the act, Code, ch. 124, § 1, p. 526, should have sent the parties to law to try their title.</p> <p>2. The Court of appeals having reversed the decree and sent the cause back, the Circuit court has authority now under the act to try the question of title.* And after allowing the parties a reasonable time for trial, should proceed to decide the question, observing the general rules of practice in courts of equity for the purpose of ascertaining facts, either by a jury or otherwise, as may be most proper.†</p>

At a court held for Albemarle county on the first of June 1835, the will and codicil of Martin Dawson were ailmitted to record. The will contained, besides other provisions, the following clauses : “ IGth.

This was a suit instituted in the Circuit court of Ohio county, by the executors of Joseph Morrison deceased, claiming to be the creditor of Austin Peay, a free negro, to set aside a deed executed by said Peay to his son William A. Peay, on the ground of fraud.

<p>Assumpsit in the circuit court of Frederick county, by Joseph F. Stephenson against Josiah W. Ware, upon an alleged promise by the defendant to pay the plaintiff for any goods he might furnish out of his store to one Jacob Vogdes. Plea, the general issue.</p> <p>At the trial, the plaintiff, after proving the absence of Vogdes from the commonwealth, offered his deposition in evidence, and the defendant objected that Vogdes was incompetent on the ground of interest, but the obiection was overruled, and the defendant excepted, to , . . 1 the opinion.</p> <p>The plaintiff then read in evidence to the jury the deposition of Vogdes, with an account thereto annexed of the plaintiff against the defendant, commencing the 4th of May 1S33, which account amounted, on the 30th of June 1834, to 399 dollars 60 cents, and on the 22d of August 1834, to 445 dollars 96 cents. In answer to the first four questions of the plaintiff’s counsel, Vogdes deposed that he was a house joiner and carpenter, and was at work at colo. Ware's building (the defendant’s) from the date of the first article in the account for a period of from nine to twelve months; that he had examined the account and found it correct; that he was a stranger in the neighbourhood, and became acquainted with Stephenson about five weeks previous to the commencement of the account.</p> <p>The fifth and sixth questions, and the answers thereto, were as follow's : “ 5th question. What induced you to run up said account, and on whose authority was it commenced ? Stale all you recollect of the origination of the account. Answer. I was frequently solicited by mr. Stephenson to divide my custom with the merchants of the place, and I told mr. Stephenson 1 must consult colo. Ware first, which I did, and colo. Ware and myself went to mr. Stephenson and had a conversation with him at the door of the store. Colo. Ware stated to mr. Stephenson that I was engaged on a building for him, and would want to be furnished with different articles out of his store, and that he (Ware) could not pay him for the articles until next harvest come one year. Mr. Stephenson assented to it, and received my orders for goods from that time until within three months of the finishing of colo. Ware's building. 6th question. Upon whose promise or undertaking to pay for the goods in said account, were they furnished by mr. Stephenson ? Answer. I was induced to believe they were furnished upon colo. Ware’s agreement to pay for them. I was a stranger, and did not think mr. Stephenson would eredit me, but it was to come out of the money which colo. Ware would owe me at the finishing of his building.” '</p> <p>Upon the cross examination, there were the following questions and answers: “ 7th question. Will you state whether the articles charged in the account you have alluded to were got for your own use and bene6t ? Answer. Yes, sir; for the benefit of myself, my family and hands. Question. In the conversation you have spoken of at the store door, was the understanding of the parties that mr. Ware was to stand as security for you ? Answer. That was the way I understood it, and that mr. Ware was to pay for the goods out of such moneys as might be due when the building was finished, and that mr. Ware was to be my paymaster, and to reserve'it out of such money as might be due me, upon a settlement with mr. Ware when the building was done. Question. Did you understand that mr. Ware was to pay the account whether there should be any money due to you on settlement or not? Answer. Certainly not. Question. Whilst the account you have mentioned was accruing, did mr. Stephenson frequently or at any time apply for payment of it, or to draw orders on mr. Ware in his favour, for money on that account? Answer. Yes, mr. Stephenson did frequently apply to me for orders on colo. Ware, and I think I gave him an order. He frequently applied to me to endeavour to secure the payment of the account-by drawing an order for the account on mr. Ware, which if he would accept, it would be all right. Question. Had mr. Ware any”authority to pay any part of the account without 'your direction to apply the money which might be due to you on settlement to such payment.? Answer. No, sir, he had not, nor had he any right to accept an order from me unless he chose to do so. At the commencement of the work, it was understood that mr. Ware would not accept my orders unless he chose. Question. Was the account kept against you in the first instance ? Answer. I cannot answer distinctly as to that. I am under the impression that the account was kept against me. I know the account in mr. Stephenson’s ledger was headed with my name. The orders for goods were drawn by me, and, I think, the account kept against me. Question. Whose debt was it which grew out of the account? Answer. As I got the goods for my own use and that of my family and bands, I always considered it my debt, and mr. Ware as my security.—Had you not a conversation with mr. Stephenson about the time of finishing mr. Ware’s building, about the account, and did not mr. Stephenson agree to indulge you ? Answer. I had a conversation with mr. Stephenson on the afternoon of the finishing mr. Ware’s building, and stated to him I had settled with colo. Ware, and that I was not able to pay all of his account; that I was very sorry that I could not pay him the whole account, but I was willing to give him my note for the balance, as I had done with the other merchants of the town. Mr. Stephenson then replied to me that he did not consider the debt mine, but the debt of colo. Ware, and refused to take my note. I then told mr. Stephenson that I would be in that country again in the spring, to work, and that I would use the utmost of my endeavours to see him paid ; but he never did say he would indulge me. Question. Will you state whether mr. Stephenson made very frequent applications to you, to endeavour to get the debt due to him on the said account secured to him in mr. Ware’s hands, or through mr. Ware? Answer. Mr. Stephenson frequently applied to me for orders to mr. Ware, and I stated to mr. Stephenson that they would not be accepted by colo. Ware. He (Stephenson) told me his claim ought to be secured in colo. Ware’s hands.”</p> <p>The witness, upon a reexamination by the plaintiff’s counsel, deposed that the contract between him and Ware was, that he {Ware) was to pay the witness money, provided he had it at the time that the witness might apply to him for it, and that he was willing to get the witness, out of any of the stores, any articles that would answer for the witness and his hands. Witness was to wait with colo. Ware for any money that might be due him after the building was finished, until it should be convenient for colo. Ware to pay it; but Ware was to use every exertion to pay the witness off when the building was finished. The work, when it was finished, amounted to 2250 dollars. Colo. Ware paid the witness that sum during the progress of the building and after it was done, or assumed the payment after the building was done.</p> <p>The plaintiff’s counsel proved the handwriting of Vogdes to an order in these words : “ Bcrryville, Sept’r 30. 1834. Colo. Jos. Ware. Sir, you will oblige me by paying mr. Joseph F. Stephenson the account of plank furnished you. Jacob Vogdes”—and offered the said order as evidence; but the court rejected the same; to which opinion the plaintiff excepted.</p> <p>Another witness, John W. Luke, deposed that he had lived with the plaintiff, as clerk and salesman in his store, from the 20th of August 1833, and, from that date until the close of the account, sold to Vogdes the greater part of the articles mentioned in the account. The account was kept in the name of Vogdes. Witness was under the impression that the credit was given to the defendant and not to Vogdes, because he {Vogdes) was a stranger in the neighbourhood, had no property there, and there were notes or bonds of Vogdes brought there by others from Loudoun, and offered for sale at a discount. There were kept at the same time, on the books of the plaintiff at his store, an account against the defendant, an account against defendant and Stribling, in the name of Ware and Stribling, and an account against the two misses Stribling, for all of which the defendant was looked to by plaintiff for payment.</p> <p>Another witness, Treadwell Smith, deposed that Vogdes came as a stranger to the neighbourhood of plaintiff and defendant. Witness had been informed by a friend of his in Baltimore, that said Vogdes had taken the benefit of the insolvent oath in that city, and was cautioned not to trust him. Witness did not know whether plaintiff was aware of Vogdes’s insolvency. Witness did not speak of it, nor did he believe that Vogdes’s circumstances were generally known in the neighbourhood.</p> <p>The defendant demurred to the evidence introduced before the jury. The jury found a verdict for the plaintiff for 399 dollars 60 cents, with interest from the 1st of August 1834, subject to the opinion of the court on the demurrer. And the circuit court rendered judgment on the demurrer for the plaintiff. To which judgment a supersedeas was allowed.</p>

This was an action of detinue in the Circuit court of Marion county, brought by Dorothy Cleland against James D. Watson, to recover a number of slaves. On the trial the parties agreed the facts, and submitted the case to the court.

<p>1. Gr, B and K were principal obligors in a bond. B and K put money in the hands of Gr to pay the bond; and he bound himself to pay it, but failed to do so, and became insolvent. A judgment was recovered on the bond against the three, and B paid it. After the judgment Gr conveyed land to S to secure a debt due to him and another debt due to C. Upon a bill by B and K against S and C to subject the land conveyed in the deed to S to satisfy the debt B had paid, S stated in his answer that prior to the judgment he held the bond of G, B and K, and that he had delivered it up upon.receiving the bond of Gr with the deed to secure it; but there was no proof of this. C in his answer, stated that he had before the judgment bought one-half the land from G, and made payments upon it; and had afterwards given it up and taken the bond of G for the amount, and taken the deed of trust to secure it. Held :</p> <p>1. It was competent for G, B and K to contract that as between themselves, G should be the principal and B and K his sureties; and that this had been done.</p> <p>2. - That as between B and K and G, the former were entitled to be subrogated to the lien of the judgment creditor upon the land; and that they were equally entitled as against purchasers from G who did not show a better equity.</p> <p>3. That the equity set up by S was not proved; and that the equity of C, if he had any, was merged in the deed of trust.</p> <p>2. The bill alleged that G was seized of the several tracts specified in certain deeds exhibited; and that the deed of trust covered all the land; but this seemed to be a mistake. The record states that the cause came on to be heard by consent, and an interlocutory decree was entered directing a sale of the land in the bill mentioned. At a subsequent day of the same term it was suggested that there was another suit pending in the same court by another plaintiff against G and others, to subject the same land to sale; and by consent of parties the suits were amalgamated so far as to be heard together. And by like consent it was ordered that the decree for the sale of the land in the first suit should be considered as having been pronounced in both cases. A sale was made and the executor of S became the purchaser, and there being no exception to the report, it was confirmed. Held :</p> <p>1. The consent of the parties merely cured any irregularities as to the time of bringing on the first cause for hearing, the amalgamatiug the two causes, and in making the decree as entered in the first cause, a decree in both cases without a formal entry in each case. The consent did not extend to the decree directing the sale of the land, or cure any error therein.</p> <p>2. It was error to decree a sale of the land before the priorities of the parties were adjusted; and until it had been ascertained what portion of the lands appearing by the deeds filed with the bill to belong to the debtor, was included in the deed of trust.</p> <p>3. The land not included in the deed of trust should have been first sold, and applied to the prior judgment; and if insufficient to discharge it, then the lands included in the deed of trust should have been sold, and so much of the proceeds thereof as, with the proceeds of the land not conveyed, amount to a moiety of the proceeds of all the said lands, should have been applied if necessary to the satisfaction of said judgment.</p> <p>4. The proceeds of the other moiety of the land should have been applied to satisfy the second judgment if it had priority over the deed of trust.</p> <p>5. The final decree gave the proceeds of all the land to the cesiuis que trust in the deed, subject to satisfy the debt in the second suit, and directed a conveyance to the purchaser. It does not appear what the lands not included in the deed produced. Held: As the appeal brought up the whole decree, and suspended its execution, the claim of the purchaser must fall with the reversal of the decree, the purchaser not being a stranger to the controversy purchasing at a judicial sale, but the party chiefly benefited by the proceedings complained of.</p>

<p>The owner of a tract of land conveys it to his nephew in fee, subject to the maintenance and support of the grantor and his sister. The deed contains a covenant by the grantee for such maintenance and support, and declares that the land is to be bound therefor, into whose hands soever it may come. But the deed does not state that it is upon condition that such maintenance and support be furnished, nor is there any clause providing for a reentry by the grantor. Held, the provision for maintenance and support constitutes merely a charge upon the estate, which may be enforced in equity, not a condition for breach of which the grantor can reenter as of his former legal estate.</p> <p>A special verdict finds that a person having an estate in land, conveyed the same by deed of trust of a particular date, which deed it finds was duly recorded, and'sets forth the same in hcec verba. The action being ejectment by a plaintiff claiming under the grantee, against a defendant claiming under the grantor, it is material that the deed of trust should have been recorded prior to the other conveyance. Upon the deed of trust so found in hcec verba, there is endorsed a certificate of the clerk of the county court, that on a specified day (which in fact is the day the deed was made) the same was presented in the office, acknowledged by all the parties, and admitted to record. Held, although, upon the finding alone, there might have been doubt as to the time of the recording, yet the clerk’s certificate upon the deed may properly be looked to for the purpose of removing that doubt, and does effectually remove it.</p> <p>After a deed of trust upon land is made and recorded, the land is conveyed by the grantor, and then by his alienee to another. Whereupon the first grantor removes from the land, and the last alienee removes to it. While this last alienee is residing on the land, the trustee in the deed of trust goes upon it, sells it according to the provisions of the trust, and conveys it to the purchaser. In ejectment by the purchaser from the trustee against the purchaser under the grantor, a special verdict finds the facts before stated, but does not find that, at the time of the conveyance by the trustee, there was adverse possession. Held, the conveyance by the trustee is valid.</p>

<p>In 1817 K executed to his step son E a bill of sale for a female slave, purporting to be for a valuable consideration. At the time E was but a boy, and lived with K, and continued to live with him until 1826, when he married and settled near K on land given him by K. The slave had seven children, and all of them but one continued in the possession of K until the death of E in 1845; that one had been for some years previous to E’s death in his possession. E had been heard to say that IC had made him a bill of sale for the slaves and that they would be his at the death of K and his wife who was the mother of E. E died leaving a widow but no children, so that his widow and mother were his distributees. In a short time after the death of E his widow filed a bill against K and wife and E’s administrator, claiming distribution of the slaves, alleging that the debts of E had been paid by the administrator out of other property, that he declined to sue for the slaves but consented to the suit. K and wife answered and insisted that the bill of sale was intended to give to E only the remainder of the slaves after their death, and was so understood by E, who never set up any claim to the slaves during his life; that the slave conveyed was a gift from K to E, without consideration, though the bill of sale purported to be for value. And they objected to the jurisdiction of the court; and relied upon the statute of limitations, and the lapse of time. E’s administrator answered, admitting' the facts stated in the bill as to his action. Held :</p> <p>1. It is a proper case for the jurisdiction of the court.</p> <p>2. The possession of K was subordinate to the deed, and not adversary; and therefore the claim was not barred by the statute of limitations.</p> <p>3. E having lived with K who stood in the place of a parent and guardian to him, until 1826, and the suit having been brought in 1845, the lapse of time does not bar the claim.</p> <p>4. The ground of defence set up in the answer precludes the presumption of a reconveyance of the slaves by E to K.</p>

<p>Certain persons having become the sureties of an executor in his executorial bond, a deed is made by him mortgaging slaves to them, upon condition that if he shall faithfully perform in all things his office of executor, then the deed shall be void; but the deed contains no clause providing that possession shall remain with him until default in the performance. The mortgagor, after the date of the mortgage, is in possession of the slaves for more than five years. Whereupon a creditor of his procures the slaves to be taken under execution and sold. And then, in less than five years after they are so taken, an action of detinue is brought by the mortgagees against a purchaser at the sale under the execution. Held, 1. the action is commenced in due time; and 2. the fact of possession remaining with the mortgagor five years without demand made and pursued by process of law on the part of the mortgagees, does not make a case in which, under the statute of frauds, the property is taken to be with the possession, and liable to the creditors of the person in possession.</p> <p>An opinion being given by the circuit court that the action is barred by the act of limitations, the opinion is excepted to, and the bill of exceptions setting forth the evidence contains (among other things) a deed which, it is alleged in the court of appeals, shews the action to have been brought by improper parties. Held, this point, not having been made in the court below, cannot be passed upon by the appellate court.</p> <p>Pending an action of detinue at the suit of four plaintiffs, one of them dies, and a scire facias is awarded to revive the action in the name of his executor: Held, the scire facias was improvidently awarded.</p>

Roberts filed a bill in the high court of chancery, stating, That on the 10th of March, 1727, Robert Carter the younger, obtained a grant for 11,000 acres of land… Held: until after the purchase. That Charles Carter told the defendant he never promised to confirm leases to those who had none. That the defendant submits how far Charles Carter’s promises, without consideration, bound him ; and how far Robert Carter’s promises bind, after the length of time which has elapsed.

<p>1. The sureties of a deputy in his bond to the high sheriff for the faithful discharge of his duties, are estopped thereby from denying that their principal was deputy, unless the bond is invalid.</p> <p>S. The bond of the deputy is not avoided by the fact, that the County court did not enter of record that he was a man of honesty, probity and good demeanor; and that he did not take the several oaths required by law to be taken by deputy sheriffs.</p> <p>3. Upon a motion by a high sheriff against a deputy and his sureties, they file a special plea; and the plaintiff replies specially, and relies on the facts therein stated and especially on the bond as an estoppel; though the replication has not the peculiar commencement and conclusion of a pleading by way of estoppel. A demurrer to the replication should not be sustained.</p>

<p>Similar case to that of Jones, &c. v. Roberts, (ante. 187.)</p>

<p>Several persons being bound as sureties for M. in bonds, and others being indorsers of notes for his accommodation at different banks, which notes had come to maturity and been protested for nonpayment, M. by deed of trust, mortgages property to be sold and applied to the indemnification of each and all of the sureties and indorsers, without preference of any over the others, in case they should sustain loss by reason of their suretyships and indorsements; the indorsers of a note held by one of the banks, are discharged from liability by the laches of the bank or otherwise, so that the indorsers of this note are never damnified; while other sureties and indorsers are damnified: upon a bill in equity filed by this bank for participation in the trust fund with the sureties and indorsers who had sustained damage, ' Held, the bank could only claim to be subrogated to the rights of the indorsers of the note which it held; and these having sustained no damage, and so having no claim to participate in the trust fund themselves, therefore the bank has no claim to i participate in it.</p>

<p>1. A plaintiff in equity whose house where his family lives is fifteen feet on the Virginia side of the line which separates the state from Tennessee, and who so far as known lives with his family, is prima facie a resident in Virginia; and this prima facie case is not removed by proof that a sheriff had gone to the house twice with process against him without finding him, and was told by the neighbors that the plaintiff would not let him see him.</p> <p>2. Upon a motion against a plaintiff in equity for security for costs, a bill of exceptions is taken to the opinion of the court, which states the evidence introduced on the motion. There is no objection to this mode of putting the evidence upon the record.</p>

<p>A creditor, since the act of 1792,' has no preference, over any other person, in an application for administration upon an intestate’s estate; but every case must depend upon its own circumstances.</p> <p>Under a power of attorney, authorizing a person to execute an administration bond for the person giving the power, the attorney may be allowed to execute the bond accordingly.</p>

This was an appeal from a decree of the superior court of chancery, ordering Jones to convey a tract of land to the representatives of Hubbard.

<p>1. B for himself and others sells part of a tract of land to J, who executes to B his bonds for the purchase money.' The other parties refuse to confirm the contract, but sell their interest in the whole tract to J. B having recovered judgment upon the bonds, J is entitled to have the judgment enjoined, and to be relieved to the extent of the injury he has sustained by the failure of B to procure the others to execute the contract.</p> <p>2. An injunction refused by a judge of a Circuit court, is presented to a judge of the Supreme court of appeals who also refuses it. The injunction may be awarded by another judge of the Court of appeals.</p>

This was an action of debt in the Circuit court of Washington county, by Joseph Rhea against the executor of Charles C. Gibson, upon a bond for four hundred and eighty-nine dollars and seven and a half cents, signed by Peter Hickman, Jacob Merchant, Charles C. Gibson and Andrew Gibson. The defendant filed two pleas of payment in part by Hickman who was the principal in the note, and two other pleas of payment in part by his testator. He also filed a plea of non est factum.

<p>JYoel Quesnel filed a bill in the high court of chancery, against Woodlief and others, stating himself to be a native of France, but then a resident of the county of Prince George, in the state of Virginia. That late in the year 1786, he came to reside in the town of Blandford, in the county aforesaid, as a merchant, and soon became acquainted with the defendant Thomas Woodlief of Sion Hill, in the said county; and placed great confidence in him. That Woodlief grew embarrassed in his affairs, and offered his said tract of land, called Sion Hill, for sale, always speaking of it as containing 800 acres; and by public advertisement, of the 6th of March, 1788, asserted it to be that quantity, or thereabout. That the plaintiff hearing the same from Woodlief himself, entered into a treaty with him for the purchase thereof. That, upon the first mention of the subject, Woodlief asked £4000 for it, amounting to £5 per acre; which being more than it was worth, the plaintiff refused to take it at that price; but offered, afterwards, by letter of the 25th of April, 1788, (in which he mentioned that his counsel should examine the deeds,) £ 3200, believing, at the time, that the tract contained 800 acres. That, under these impressions, he subsequently became the purchaser of the same, for the said sum of £ 3200, equal to £ 4 per acre, payable as follows, viz : £ 500 in October 1788, £ 500 in December 1789, £ 500 in December 1790, £500 in December 1791, £600 in December 1792, and £ 600 in December 1793; for which said several sums, (except the first,) he gave his bonds to the said Woodlief. That the plaintiff, after the purchase, intended to require a survey of the land ; but, having understood that it had been in Woodlief’s family for many generations; and, having never heard, that any part of it had been sold, he omitted to do so, determining, however, to have the deed prepared by William Davies, his counsel, as he himself was a foreigner, not well versed in the American language, and still less acquainted with conveyancing. That the contract was not finally concluded until Monday the 28th of April, 1788, when the plaintiff being at the house of Edmund Ruffin, jr. the defendant, in the said county of Prince George, a deed was proposed to be drawn for the said tract of land, by the said Ruffin, as well as a deed of trust upon the same, to secure payment of the purchase money : to which, the plaintiff at first objected, as wishing to have the aid of his counsel, the said Davies ; but, being pressed thereto by Wood-lief and Ruffin, (who declared himself capable of preparing the deed,) he at length assented, believing Ruffin to be both capable and disinterested : and the deeds for the said tract of land called Sion Hill, describing it as containing 800 acres, “ more or less,” were accordingly executed upon that day, the deed of trust, however, expressing the quantity to be 800 acres, without the addition of the said words, “ more or less.” That the plaintiff believed, at the time, that there were 800 acres; and, as possession was not to be delivered until a future day, he intended to have it surveyed before he occupied it; of which Woodlief was not ignorant. That the plaintiff, immediately after the execution of the deeds, and before possession was delivered, sent for Harris, the surveyor of the county, for that purpose; but Woodlief being from home, the survey was not made until September 1788; when, to the astonishment of the plaintiff, the tract was found to contain only 510 acres, although, by an after survey, it appeared to contain 577 acres. That Woodlief, in asserting the tract to contain 800 acres, must have relied on general opinion, although he could not have been ignorant, that two parcels of land had been conveyed at different times, between some branches of the family nearly allied to him ; which having finally come into his possession, or the possession of his brother, from whom he inherited the estate, he had himself conveyed, a part thereof, to his brother Peter Woodlief, who was then in possession of 230 acres, formerly parcel of the tract; and which, added to the quantity then held by the plaintiff, would make up the 800 acres. That this was corroborated by the circumstances. For it appeared by a patent dated the 25th of July, 1038, that the ancestors of the defendant Thomas Woodlief, were in possession of the tract of land, called Sion Hill, before that period. That John Woodlief, being in possession of the said tract of land, on the 11th of February, 1737, devised his whole real estate, and the greater part of his personal, •to his son John. That the said John Woodlief, the son, (by the name of John Woodlief, senior), and Catharine his wife, on the 14th February, 1761, conveyed 202 acres to Campbell: which, from the boundaries, did not appear to have been part of Sion Hill. That the said last mentioned John Woodlief, on the 10th of March, 1761, conveyed to Peter Woodlief, his near relation, 100 acres, called Deep Bottom ; which joins the land conveyed to the plaintiff, and made part of the original tract; and, on the 15th of December, 1770, conveyed, to his eldest son, John Woodlief, junior, 130 acres, being also part of the Sion Hill tract: Which two tracts of 100 and 130 acres, added to the 577, make up the 800 acres sold to the plaintiff. That the said last mentioned John Woodlief, junior, being in possession of the 130 acre tract, on the 17th of February, 1775, devised, to his nephew, John Woodlief, son of Peter Wood-lief, and elder brother of the defendant, Thomas Woodlief, the residue of his estates, which included the lauds called Sion Hill; and, in order to re-unite the Deep Bottom, tract to Sion Hill, devised to his nephew, Peter Woodlief (brother to the said last named John Woodlief, and the defendant, Thomas Woodlief), £ 250, provided he conveyed, to his brother John aforesaid, the said Deep Bottom tract of 100 acres. That the said last mentioned John Woodlief, on the 4th of February, 1777, devised several personal legacies charged (as well as the personal legacies left by his uncle, the said John Woodlief,) upon his lands; all of which he gave, by the residuary clause of his will, to the defendant, Thomas Woodlief. That the defendant, Thomas Woodlief, had never paid the £250; and had actually conveyed the said tract of 130 acres to his said brother, Peter Wood-lief, who still kept the Deep Bottom tract. Which proved, that the Sion Hill tract, although spoken of as 800 acres, was, in fact, but 570 acres ; and was called 800 acres, only, when the said two tracts of 100 and 130 acres were united to it. That, on the 28th of April, 1788, it being suggested that the defendant Thomas Woodlief s estate was pledged to the defendant, Edmund Ruffin, junior, and his father, Edmund Ruffin, senior, an endorsement, by way of release, was made on the back of the deed, but no consideration was expressed. That the said Edmund Ruffin, junior, on the 3d of May, 1788, undertook to guarantee the title to Sion Hill, so far as the said incumbrances might extend : which added to the plaintiff’s confidence, that there were 800 acres, as the said Edmund Ruffin, junior, and Edmund Ruffin, senior, his father, had both lived adjoining to it. That the defendant, Thomas Woodlief, having passed away one of the plaintiff’s bonds to Claiborne, the defendant, Edmund Ruffin, junior, gave the plaintiff notice not to pay it. That 60 acres of the Sion Hill tract had been sold by the sheriff of Prince George for the taxes of 1787; and j$airg hac] a c]ajtn f0r 50 acres. That, on the 2d of October, 1708, a certain John Woodlief, senior, conveyed 70 acres of land to Stainback, described to be part of the manor plantation, bounded by Deep Bottom run. That, on the 27th of October, 1788, the plaintiff gave the defendant, Edmund Ruffin, junior, notice, that he would not pay the bonds, and that he claimed an allowance for the deficiency in the land sold to him by Woodlief: Which notice he also gave to the said defendant,' Thomas Woodlief, requiring that he should either make the deduction, or annul the contract. But that the said defendants, Thomas Woodlief and Edmund Ruffin, junior, had directed Harrison, the trustee named in the deed of trust, to proceed to sell the land, in order to satisfy the bonds for the purchase money. The bill, therefore, interrogating the defendants as to the matters aforesaid, and particularly whether Quesnel was shewn the boundary lines, before he purchased, prayed for an injunction, and for general relief.</p> <p>The answer of the defendant, Thomas Woodlief, states, that after having previously advertised Sion Hill for sale, he, about the month of April 1788, contracted to sell it to the plaintiff for £ 3500; but, as the contract was by word of mouth only, and no witnesses to it, the plaintiff refused to comply, as he knew the defendant’s embarrassed situation; to relieve which, he afterwards sold it to the complainant for £ 3200. That he had, repeatedly, offered the said tract of land, to the plaintiff, at the supposed quantity of 800 acres; or to survey it, if the plaintiff would pay for the excess; which the plaintiff, after going over the land, refused ; and has since declared, that he thought, from the boundaries, that there must be more than 800 acres in the tract. That, on concluding the bargain, the deeds drawn by col. jDavies, not corresponding with the intention of the plaintiff and defendant, were rejected ; and the defendant, Edmund Ruffin, jr. was requested, by the parties, to draw others for that purpose; which he consented to do: and Monday, the 28th of April, 1788, was fixed on, by the plaintiff, as most convenient to him, to attend at the house of the said Edmund Ruffin, jr.; which he did, and the deeds were, there, executed, the plaintiff declaring himself better pleased with them, than with those prepared by col. Davies, whose assistance, he did not express any desire to have; and sometime after-wards, declared himself satisfied with the purchase, and wished people would suffer him to make his own bargains. That several years, before the date of the sale to the plaintiff, the defendant had listed 900 acres of land with the commissioner ; and, prior to the said sale to the plaintiff, had sold the tract of 130 acres to his brother, the said Peter Woodlief; leaving the supposed quantity of 770 acres, which justified his advertising the Sion Hill tract, as containing 800 acres, or thereabout: but, at the time of the advertisement, he verily believed that it contained fully 800 acres. That the tract of 130 acres lies on the south side of Deep Bottom run; never was considered as part of the Sion Hill tract: and was in possession of the said Peter Woodlief, for some time, before the treaty between the plaintiff and the defendant commenced. Denies combination, &tc.</p> <p>The answer of the defendant, Edmund Ruffin, jr., states, that in April 1788, he was informed by the defendant, Thomas Woodlief, that he was about to conclude a bargain with the plaintiff for Sion Hill; and was requested to attend at Blandford, in order to see part of the purchase money paid; which was to discharge two executions, against Wood-lief, on replevy bonds, to which the plaintiff was security. That the defendant did attend ; when the plaintiff refused to pay the money, unless the defendant would relinquish all claims, the defendant, or Edmund Ruffin, sen., his father, had upon the land; which the defendant readily did, as he knew there were none at that time; all such having been previously cancelled, without ever having been recorded. That the plaintiff, thereupon, paid part of the purchase money ; but, before he did so, he and the defendant went to col. Davies, and observed to him, the variance between the actual contract, and the deeds, which the said Davies had drawn. That some conversation ensued; after which) the plaintiff and defendant left him; and returning to the store of James Campbell, the plaintiff agreed to make the payment. That it was then proposed, that the deeds should he drawn by the defendant; for which purpose, the plaintiff furnished memoranda of the terms of the bargain; and in conformity thereto, the defendant prepared the deeds. That the parties met at the house of the defendant, on the 28th of April, 1788, (being Monday) the day fixed on by the plaintiff himself for the purpose: at which time, the defendant delivered the deeds to the plaintiff, who, assisted by William Ragsdale, jr.' (a young gentleman who wrote in the clerk’s office, and was tolerably well acquainted with conveyancing) perused them; and expressed his approbation of them, in the presence of several disinterested persons, adding that he was better pleased with them, than with those which had been prepared by col. Davies. That,, while the plaintiff was perusing the said deeds with Ragsdale as aforesaid, when they came to the words, “ more or less,” he asked whether Woodlief would not make a deduction for any deficiency in the quantity of land, provided, upon survey, the tract proved to contain less than 800 acres? To which Woodlief answered, that he would, provided the plaintiff would pay for the excess. That the plaintiff, who appeared not to relish the proposition, made no reply; but executed the deeds and bonds, without being pressed thereto by any person. That the defendant believes, that both Woodlief and the plaintiff thought the tract would contain more than 800 acres, from the circumstance of its being an old survey. That the defendant had no inclination, or inducement, to deceive the plaintiff, as there would have been land enough to pay him, notwithstanding the deficiency, which he did not suspect, and he had other ample securities. That the defendant believed, at the time, there were 800 acres; and, under that impression, had, theretofore, taken two deeds of trust upon it, as containing that quantity, more or less, as by " the said deeds, cancelled previous to the sale to the plaintiff, will appear. That the tract of 130 acres, and the Deep Bottom tract of 100 acres, were no part of the Sion Hilt tract, which was entailed; and therefore could not be aliened before the year 1776. That the John Woodlief, who sold the 130 acres to the said John Woodlief oí Sion Hill, was no relation of that family; but was the husband of the said Catharine mentioned in the bill. That the defendant does not believe that Baird has any title to the said 50 acres of land referred to in the bill. That the defendant wrote the wills of John Woodlief the elder and younger; and is confident that neither of them meant to charge the real estate with the payment of the legacies; which would have been useless, as the personal estate of both was fully sufficient to pay them; and the defendant knows that a considerable part of them has been actually paid. That the bond, in the hands of Claiborne, was withdrawn from the defendant Woodlief, under a promise to return it.</p> <p>The answer of Harrison, the trustee, admits the deed of trust; and Ruffin’s direction to him to sell the laud, in order to satisfy the purchase money.</p> <p>There was a general replication to the answers; and the following depositions were taken.</p> <p>William Ragsdale, jr. says, That, on Monday, the 28th of April, 1788, he was desired, by the defendant, Edmund Ruffin, jr. to draw a deed, from Thomas Woodlief to JYoel Quesnel, for the Sion Hill tract of land; and did so. That the plaintiff requested him to read it, to him the said plaintiff, that he might compare it, with that drawn by col. Davies, which the plaintiff held in his hand ; and when the deponent had finished reading it, the plaintiff expressed his satisfaction with it; and said he liked it better than the one col. Davies had drawn. That when the deponent, in reading the deed to the plaintiff, came to the words “ 800 acres, more or less,” the plaintiff asked Thomas Woodlief, if there should not be the full quantity of 800 acres, he would make a deduction from the purchase money, for whatever land might be wanting? To w'hich Woodlief answered, he would, if the plaintiff would pay for whatever surplus land there might be at the rate of £4 per acre. That the deponent wrote the bonds, or great part of them, for the purchase money; saw them executed; and heard the plaintiff express no desire, to have the land surveyed.</p> <p>James Campbell. That, on Quesnel’s telling him and his partner Wheeler, that he had purchased Sion Hill, they advised him to consult col. Davies; and have a proper right made to him. That Quesnel told them “the tract contained 800 acres; but as it was an old survey, he supposed it would contain more land, having been told that was common in old surveys.” That some time afterwards, Quesnel, Woodlief and Rufjin, jr. called at Campbell fy Wheeler’s store, about the land, and the tract was said to contain 800 acres; but that there might be more or less ; and the first was most probable. That Quesnel afterwards told the deponent, “ he had taken the land, as Mr. Woodlief held It, for 800 acres, more or less.”</p> <p>Luke Wheeler. That Quesnel consulted him and Campbell about the purchase; and they advised him to consult col. Davies, respecting the titles. That Quesnel, at that time, informed him, there was computed to be 800 acres of land ; but being an old survey, it was expected to contain more, as he understood such surveys generally contained more than the grant expressed.”</p> <p>John H. Fitzgerald. That he was present at the execution of the deed, from Thomas Woodlief to Quesnel; and heard Quesnel say, he was better pleased with it, than with that drawn by col. Davies; and that he wished people would let him make his own bargains. That, after it had been discovered by Harris’s survey, that there was a deficiency in the land, the deponent heard Quesnel say, he had bought Sion Hill for 800 acres, more or less.</p> <p>Francis Eppes. That he was present when the deeds for the land were executed; and always understood that Quesnel had bought it for 800 acres, more or less.</p> <p>Peter Woodlief. That the sheriff and commissioner . , were not upon the 60 acres of lann, when they were sold for the taxes. That the said 60 acres are part of the Deep Bottom tract, and of the 130 acre tract. That they are not part of the Sion Hill tract; and that there was sufficient personal estate of Thomas Woodlief, on the land, at the time of the sale by the sheriff, to satisfy the taxes.</p> <p>William .Davies. That Quesnel (who appeared to understand very little of the English language) advised with him about the purchase ; and he drew a deed and mortgage for the land : which Quesnel, afterwards, told him were objected to by the other parlies, who required a deed of trust; and the deponent cautioned him against the execution of it; but he did not readily understand the distinction, which the deponent endeavoured to impress upon him. That he seemed to bo confident, as to the quantity of the land ; and appeared to bo anxious to make the purchase.</p> <p>Ulrich Mark. That Quesnel came to reside in Peters-burg in the latter end of the year 1786, as a merchant; and was so unacquainted with English, that be stood in need of an interpreter in his commercial transactions.</p> <p>Francis StainbacJc. That he was overseer for John Woodlief at Sion Hill, until 1777; and, afterwards, for Thomas Woodlief, until discharged: And that he always thought the Deep Bottom tract was part of Sion Hill, “ as that was the part of the land on which we lived, and where Peter Woodlief now lives.”</p> <p>The court of chancery ordered a survey to be made by the county surveyor: And Robert Turnbull, the surveyor, on the 15th of September, 1794, returned a plat and survey; by which it appeared that the Sion Hill tract contained 608 acres, 1 rood, and 13 perches.</p> <p>The exhibits, filed in the cause, were,</p> <p>1. Thomas Woodlief s advertisement for the sale of Sion Hill, dated the 6th of March, 1788; and describing it, as containing “ about 800 acres.”</p> <p>2. The deed, from Thomas Woodlief, to the plaintiff, for ^ g^on ppm tract 0f ]and; dated the 28th of April, 1788 ; the consideration £ 3200; and describing it as “ containing eight hundred acres, more or less, being the. same tract of ' land devised to the said Thomas, by his late brother, John Woodlief, excepting a small tract sold by the said Thomas to his brother Peter Woodlief.” There is a covenant in the said deed, that Woodlief had a good title to the land, free from incumbrances; had power to convey the same to the plaintiff in fee simple; would make further assurance when reasonably required ; and would defend the title.</p> <p>3. The release from Edmund Ruffin, sen. and Edmund Ruffin, jr., dated the 28th of April, 1788.</p> <p>4. The deed of trust from Quesnel to Harrison, to secure payment of the purchase money to Woodlief, dated the 28th of April, 1788, and describes the land as “containing, by estimation, eight hundred acres, being the same land lately purchased, by the said JYoel Quesnel, of the said Thomas Woodlief.”</p> <p>5. The survey made, by Harris, on the 10th of September, 1788, making Sion Hill to contain 510 acres only.</p> <p>6. The will of John Woodlief, senior, dated the 11th of February, 1737 ; which, after devising some personal property to his wife, makes his son John residuary devisee of “ all the rest of his estate, both real and personal.”</p> <p>7. The deed from John Woodlief, senior, and Catharine his wife, to John Campbell, dated the 14th of February, 1769, for 202 acres of land; which the bill admits does not appear, from the boundaries, to be any part of the Sion Hill tract.</p> <p>8. The deed from John Woodlief to Peter Woodlief, dated the 10th of March, 1761, for “one hundred acres of land commonly called and known by the name of Deep Bottom, and now in possession of the said Peter Woodlief, and is the tract of land which he now lives on.”</p> <p>This is the tract of land conveyed by Peter Poythress to John Woodlief, by deed of the 12th of November, 1754; which describes it, as “ one hundred acres of land, more or less, commonly called and known by the name of Deep Bottom, situate, lying and being in the said parish of Martins Brandon and county of Prince George, and is bounded as followeth, on the north side by Deep Bottom run; on the south side by Richard, Bland’s land; on the east side by John Woodlief’s land; and on the west side by Thomas Poythress’s land.” Which necessarily shews it was not part of the Sion Hill tract, then owned by the said John Woodlief.</p> <p>9. The deed from John Woodlief, senior, and Catharine his wife, to John Woodlief, jr., for 130 acres, dated the 15th of December, 1770.</p> <p>This John Woodlief, senior, the answer of Ruffin says, was no relation of the Sion Hill family. Consequently, these 130 acres never were part of the Sion Hill tract, which had been entailed for ages; and, therefore, could not be aliened prior to the year 1776.</p> <p>10. The will of John Woodlief oí Sion Hill, dated the 17th of February, 1775; which devises as follows, “if my nephew Peter Woodlief, shall, so soon as he has attained the age of twenty-one years, make a good and sufficient deed to his brother John Woodlief, for that tract of land and plantation known by the name of Deep Bottom, which land was devised to the said Peter Woodlief, by the last will and testament of his father Peter Woodlief deceased, then, and in that case, I give and bequeath to my said nephew Peter Woodlief two hundred and fifty pounds.” And, after some personal legacies to his other nieces and nephews, devises “ all the rest and residue of his estate both real and personal to his nephew John Woodlief.”</p> <p>11. The deed from Thomas Woodlief to Peter Wood-lief his brother, dated the 21st of July, 1787, for the 130 acre tract of land.</p> <p>12. Ruffin’s obligation to re-pay the first payment to Quesnel, if the Sio?i Hill tract should appear to be incumbered.</p> <p>13. Quesnel’s notice to Ruffin, on the 27th October, 1788, that he would not pay the full amount of his bonds for the purchase money, as the land, upon a survey made, had proved deficient in quantity.</p> <p>14. A notice by Quesnel, in the newspapers, on the 28th of October, 1788, to the same effect.</p> <p>15. The alledged memorandum of the proposition of Quesnel to Thomas Woodlief, to purchase the Sion Hill tract of land at £3200; which requires the land to be surveyed, and warranted not to contain less than 800 acres.</p> <p>This paper is without date, is not signed, nor in any manner authenticated; and the answer denies it.</p> <p>16. The letter which the plaintiff alledges he wrote to Woodlief on the 25th of April, 1788, in these words, “Mr. Woodlief you tendered me at Mr. Armstead’s some propositions for articles of agreement between you and me, respecting the purchase of your land. You have signed them, but before I either agree to them or sign them, I wish to have them or a copy to take counsel upon them, as I am not well acquainted either with the language or the laws of the country. If I like them, I will inform you, if not, I will return them to you some time this evening or to-morrow morning, if you will let me know where to find you in town. I am desirous to purchase your land, and am only anxious to be safe in what I am doing. I wish to have the business concluded as soon as possible, as delays are inconvenient to me, and no doubt disagreeable to you.”</p> <p>This paper is not signed; nor, in any manner, authenticated.</p> <p>17. A copy of a declaration, for the benefit of Peter Woodlief, upon the guardian’s bond given by Thomas Wood-lief, as guardian of the said Peter Woodlief and George Woodlief. But the date of the suit, or whether it was still depending, does not appear.</p> <p>18. The notice from Edmund Ruffin, jr. to Quesnel, not to pay the bond in Claiborne’s hands.</p> <p>19. A certificate from the commissioner of the land tax, . that Thomas Woodlief]¡ in the year 1786, listed his lands, as containing 900 acres.</p> <p>20. .Ruffin’s receipt to Woodlief, dated 8th August, 1788, for Quesnel’s bonds for the purchase money; which was to be applied to the discharge of debts due to Ruffin and bis father.</p> <p>21. Copy of a bill in chancery filed by John Cox and Hannah his wife, late Hannah Woodlief, against Thomas Woodlief, (as residuary devisee of John Woodlief,) JYoel Quesnel, Edmund Ruffin, jr., and Edmund Harrison, claiming payment out of Sion Hill, of a legacy of £ 500, left the said Hannah, by the said John Woodlief. But there is no certificate, or other evidence, that the suit is still depending.</p> <p>22. A paper purporting to be articles of agreement between Thomas Woodlief and JYoel Quesnel, dated the-* day of April, 1788, stating, “That Thomas Woodlief hath bargained with and sold to JYoel Quesnel, a tract of land lying on James river, whereon the said Woodlief now resides, for the sum of three thousand two hundred pounds, to be paid, &rc.”</p> <p>This paper is not signed by the parties, or otherwise authenticated. There is, however, endorsed upon it, what purports to be a release by the two Ruffins, dated the 28th of April, ’88, and signed by them, with the initials of their names; hut it is without any witnesses, or other authentication.</p> <p>23. A copy of the auditor’s certificate, relative to the sixty acres of land sold for taxes by the sheriff of Prince George county.</p> <p>24. A paper purporting to be a bond from Woodlief and Ruffin, jr., dated 28th April, 1788, for the indemnity of Quesnel, in case Sion Hill should prove to be incumbered by deed or mortgage.</p> <p>25. A copy of the deed from Peter Poythress to John Woodlief, dated the 12th of November, 1754, for the Deep Bottom tract of land of 100 acres.</p> <p>26. An old cancelled mortgage, or deed of trust, dated the 21st of October, 1784, from Thomas Woodlief to Edmund Ruffin, senior, and Edmund Ruffin, jr., upon Sion Mill, which it describes as “containing 800 acres, more or less.”</p> <p>27. The. patent to John Woodlief, (probably the father of him who afterwards sold the 202 acres to Campbell, and who was no relation of the Sion Mill family,) for 200 acres of land.</p> <p>28. Deed from John Woodlief, senior, to William Stain-back, dated the 2d of October, 1708, for 100 acres of land; which it describes as part of the plantation on which Wood-lief then dwelt; and as being “ part of a tract of land taken up and patented by my father captain Woodlief deceased; and by m'y eldest brother Mr. George Woodlief, conveyed and made over to me, ye 15th September, 1671, bounded on the north side of the running water of the Deep Bottom; west on the dividing bounds between Mr. Poythress’s lands and mine; east on the lines it parts my cosson John Wood-lief’s land and mine; south to the said Deep Bottom running water, on the line that parts Mr. Bland’s land and mine, bearing by patent 100 poles in breadth; by estimation seventy acres more or less.”</p> <p>29. The deed of mortgage, (drawn by colonel Davies,) from Quesnel to Woodlief, to secure payment of the purchase money; which describes the land, as “ all that tract of land lying in the county aforesaid, containing eight hundred acres, more or less, bounded on the east, by the land of Richard Bland, on the south by the land of Peter Wood-lief, on the west by the land of Edmund Ruffin, senior, and on the north by James river, being the same tract or parcel of-land conveyed by deed of indenture by the said Thomas Woodlief to the said Noel Quesnel, bearing even date with these presents.”</p> <p>The deed (drawn by colonel Davies) from Woodlief to Quesnel, is not in the record, although called for by Ruffin’s answer.</p> <p>There is no evidence that Baird, or any other person, ever set up a claim to the fifty acres mentioned in the bill.</p> <p>The high court of chancery dismissed the bill, upon a hearing, with costs; and (¿uesnel appealed to the court of appeals.</p>

<p>G- took the oath of insolvency at the suit of P and surrendered a bond on H. The sheriff brought a suit on this bond against H who pleaded as offsets two judgments which he had recovered against G, upon bonds which had been assigned to him. He had sued G upon these bonds before G took the oath of insolvency, but the judgments were not recovered until after the oath was taken, but before the suit brought against him by the sheriff. The plaintiff replied in the form of the statute, Sess. Acts 1844, p. 54, that the judgments were usurious; and the defendant demurred. Held :</p> <p>1. The statute though in terms applicable only to a plea, yet is properly applicable to a replication to a plea of setoff *</p> <p>3. Usury in the bonds upon which the judgments were recovered, cannot be set up to the judgments, and they are valid offsets; there being no fraud in the procurement of them.</p>

On the 30th of January 1819, Mary T. George, widow of Marcus George of Petersburg, exhibited her bill in the superior court of chancery holden at Richmond, setting forth, that her husband died in the winter of 1810, intestate and without issue, leaving no real estate, but considerable personal property in possession, and debts to a considerable amount due to him, besides money actually on hand ; that Alexander Brown, then a merchant residing in the same town of Petersburg,…

This was a bill by Robert Speer filed in the Circuit court of Scott county, against George W. Hopkins, to enjoin a judgment recovered by Hopkins for the benefit of Nancy K. Grigsby and her children. The bill charged that Hopkins had recovered a judgment against the plaintiff and two others, one of whom was insolvent, and the other had moved away, for the sum of nine hundred and fifty dollars.

This was a writ of right brought in June 1848, in the Circuit court of Greenbrier county, by the heirs of Thomas Creigh against William Henson, for six hundred and five acres of land. The tenant by his plea claimed two hundred acres of the land, and disclaimed title to the residue.

This case was before this court in 1848, and is reported 5 Gratt. 141. The statement of the case in the opinion of Judge Lee renders any other statement unnecessary.

The plaintiff did not state himself in his declaration, to be the subject or citizen of a foreign state; and the question was, if this should not be done, in order to shew that the court had jurisdiction. Jay, C. J. If the court has not jurisdiction, it is on account of the disability of the person, which might be pleaded in abatement; and if it could be pleaded in abatement, then can the exception be taken advantage of, by motion in arrest of judgment, after verdict?

The defendant was indicted, under the act of congress,* for resisting the deputy marshal when serving two writs of capias ad respondendum upon him, to wit: One for eleven dollars and eleven cents for the duty due upon a still; and the other for two hundred dollars for a penalty alledged to have been incurred, under one of the revenue laws of the United States.

A bond bearing date the 23d day of December 1834, was executed by Joseph Hagan and Sarah Purcell, the latter by said Hagan as her attorney in fact, by which they bound themselves in a penalty of three hundred and eighty dollars to Thomas C. McCleary, that they would make to him a good title to two or three certain tracts of land in Russell county, on both sides of the Louisa fork of Sandy river, containing two hundred acres, beginning at the narrows above Yates’ improvement,…

This was a writ of right in the Circuit court of Monroe county by William and Charles Rowan against David G. Givens. The demandants filed a count in the form prescribed by the aet of assembly; but there was no plea, or joinder of issue in the cause. In this condition of the pleadings the cause was tried, and there was a verdict and judgment for the tenant.

The principal question in this cause, namely, whether the transaction between the parties was a mortgage or a conditional sale, depended chiefly upon the following writing, executed by Green and delivered to Moss, which the latter produced and filed with his answer: “Know all men by these presents that I John Green, for and in consideration of the sum of three hundred and ninety-three dollars and eighty-nine cents to me in hand paid, as hereafter mentioned, by James Moss,…

<p>This was a supersedeas to a judgment of the Circuit court of Harrison county. The case is sufficiently stated in the opinion of Judge Samuels.</p>

This was an action of debt on a bond for four hundred and four dollars, instituted by Smith and Sinclair against H. B. Cunningham, in the Circuit court of Ritchie county. The defendant filed a special plea in the nature of a setoff, for two hundred dollars, to which the plaintiff demurred.

This was a suit in equity in the Circuit court of Botetourt county, by Thomas J. Obenchain and others, children of Mary Alverson, to set up a deed executed by John Alverson, by which he conveyed to his wife Mary Alverson his whole estate, consisting of a tract of land then worth about one thousand five hundred dollars, and the stock, farming utensils and house and kitchen furniture upon the farm.

This is an action of debt brought by Young for Porterfield against Johnston, on an obligation in these words: “ Due D. S. Young, on demand, one hundred and fifty dollars, for value received. Witness my hand and seal this 9th day of February 1833. Zach. Johnston. [Seal.]” Issue was joined on the plea of payment; and a verdict was thereon found for the defendant. The only evidence on the part of the plaintiff was the obligation.

<p>D M and A M have each five children, and EMMis the child of A M. Testator regards EMM with great favor, and gives him a plantation and a legacy of two thousand dollars. Testator then says, “ I will and bequeath to the children of A M and D M and to E M M all the funds remaining after every just claim against my estate has been satisfied, to be equally divided between them.” Held: That the fund is to be divided into ten shares, one of which is to be given to each of the children of A M and one to each of the children of DM; and thus giving to E M M but one-tenth of the fund.</p>

<p>James Johnson of Louisa made his will, bearing date the 21st of the 2d month 1785, whereby, after certain bequests, he devised and bequeathed as follows;</p> <p>“Item, I lend to my beloved wife Lucy Johnson, during her widowhood or life, the land whereon I now live, with all my negroes, stock and every other part of my estate not already given, during the above mentioned time.” Then came a devise of the reversion in the land, and after that devise, the following clause:</p> <p>“Item, It is my will and desire that after the death or marriage of my wife, all my negroes shall have their right to freedom when they arrive to lawful age or twenty-one years old; and if any should be born hereafter, it is my will that they shall have a right to freedom when they shall arrive to the aforesaid term of years.” In a suit in the circuit co'urt of Fowhatan against James Crawford, by Moses a man of colour to recover his freedom, a special verdict was returned, whereby the jury found, that after the death of James Johnson, to wit, on the 8th of December 1788, the said will was duly proved and recorded; that among the slaves belonging to the testator at the time of his will and at his death, was a woman named Winney, who survived the testator, and after his death, and during the life and widowhood of his wife, had issue a daughter named Jane Robinson, who afterwards, and before she the said Jane attained the age of twenty-one years, had issue the plaintiff ; that the widow of the testator was dead, and the plaintiff had attained the age of twenty-one years, before the institution of this suit; that Jane Robinson the mother of the plaintiff, after the birth of the plaintiff, to wit, on the 11th of July 1816, was registered in the county court of Powhatan, and obtained her free papers, being then twenty-one years old, and has ever since been and still is free within this commonwealth; and that the plaintiff is detained in slavery by the defendant, and has been so detained from his birth.</p> <p>The circuit court, being of opinion that the law was for the plaintiff, entered judgment that he recover his freedom.</p> <p>Whereupon Crawford presented a petition to this court for a supersedeas, stating, that he was advised that this judgment was not to be sustained by any authority, unless it could rest upon the opinions of two judges (Carrington and Pendleton) in the case of Pleasants v. Pleasants, 2 Call 319. Whatever respect might be due to the authority of those opinions, this case, he insisted, was not brought within their protection ; for they have not carried the right of freedom farthér than to maintain it against the family of the testator, or volunteers claiming under them, to the exclusion of creditors and purchasers; and the jury have not, in this case, found that the petitioner was a member of the family, or a volunteer claiming under them.</p> <p>But the opinions of those two judges, the petitioner was advised, were not authority. He insisted that the doctrine maintained by them had never since been sanctioned by any judicial opinion; that it violated some of the best settled rules of law; and that, if followed, it would introduce an anomaly in the laws of civilized society—a state of hereditary slavery for years. If such be the law, he was advised that it ought to be pronounced by at least a.majority of the court of appeals.</p> <p>By the decision in Maria and others v. Surbaugh, 2 Rand. 228. recognized in Fulton v. Shaw, 4 Rand. 597. and again in Isaac v. West’s ex’or, 6 Rand. 652. it was obvious, he said, that Jane Robinson, the mother of Moses, was born a slave, and continued to be a slave till the age of twenty-one; that Moses, her son, was also born a slave; and that, if he was entitled to his freedom at the age of 21 years, he derived that title from the will of a testator who died as early, at least, as the year 1788, giving law to the third generation after his decease : and it was equally obvious that if this will could give freedom to Moses, in the third generation, it might equally give freedom to those born in any generation, however remote.</p> <p>He urged, that before such a doctrine as this should be established as the law of the land, it ought to receive the gravest consideration.</p> <p>The supersedeas was allowed.</p>

<p>1. In an action upon the official bond of an executor against himself and his sureties for a devastavit, upon the plea of conditions performed, the execution which issued on the decree de bonis tesiatoris, directed the sheriff to levy the debt of the goods and chattels of B executor of L, instead of the goods and chattels of L in the hands of B to be administered. This is an error of form and not of substance, and the execution having been returned, “ no assets in the executor’s hands,” and no motion having been made to quash it, it must be regarded in this suit as an execution against the executor as such, and not in his own right.</p> <p>2. In such an action, a plea that the execution issued irregularly and unlawfully after the expiration of more than a year and a day from the time of the decree, without any previous proceeding by way of scire facias or otherwise to authorize the same, presents an immaterial issue; such an irregularity would not render the execution void, but only voidable; and it cannot be avoided by pleading or proof in this collateral suit.</p>

The bill states, that judgments have been obtained by Samuel Gist, in this court, against John Tabh, the complainants’ intestate, as surviving partner of Moss Armstead Co., Richard Hill &c Co., Richard Booker Co., and William Watkins fy Co. That, at the time of the commencement of the suits and rendition of the judgments, the intestate was in a state of mind which unfitted him for business. That a deed of trust has been executed, to secure payment thereof with interest.

This was a proceeding by foreign attachment, in the Circuit court of Botetourt county, by Samuel P. Holt against Joseph W. Holt an absent debtor, and James Snodgrass and others, home defendants. The case is stated by Judge Lee in his opinion.

In September 1802, Henry Baker, late of Winchester, sold and conveyed to his son John Baker part of lot No. 5. in that town, for ¿£400. the consideration expressed in the deed; of which the son paid ¿£100. and for the balance executed three bonds to his father, each in the penalty of 666 dollars 66 cents, with condition to pay 333 dollars 33 cents; they were all payable on demand.

In September 1802, Henry Baker, late of Winchester, sold and conveyed to his son John Baker part of lot No. 5, in that town, for ;£400. the consideration expressed in the deed ; of which the son paid… Held: in general terms, that interest beyond the penalty was recoverable, in Smedes v. Hooghtaling, 3 Caines’s Rep. 48. The case has been argued, as if the legal obligation of the bonds in question was in full force, and the object of the suit was to enforce that obligation.

<p>A suit for an account of administration is brought twenty-six years after the death of the intestate, twenty-five years after the death of the administrator, long after his estate is settled up by his administrator showing that there is no personal assets, and in the absence of the first administrator’s books and papers, against Ms beir who at bis death was an infant two years old. The staleness of tbe claim is con..clusive against it</p>

This was an action of ejectment in the Circuit court of Ohio county, instituted in March 1847 by John McClure against William P. Ciarte. On the trial the plaintiff deduced his title by regular conveyances from ^Ie commonwealth.

William, Garnett, as executor of Richard Brooke, exhibited his bill in the superior court of chancery, for the Richmond district of Virginia, against William H. Macon, John Campbell, an absent defendant, and others, setting forth, That the said Richard Brooke, devisee of George Brooke, empowered his executors to sell his real estate; and that the plaintiff, as executor had, on the 10th of June, 1818, sold a tract of land, called Mantapi/ce, to the defendant, Macon; who paid…

<p>Where a sale is made under a decree, if, before it is confirmed, the value of the property be materially increased or diminished, the purchaser, under the english practice, has neither the benefit in the one case, nor the burthen in the other: per Tucker, P.</p> <p>After the sale is confirmed, the confirmation relates back to the sale, and the purchaser is entitled to every thing he would have been entitled to, had the confirmation and conveyance been contemporaneous with the sale.</p> <p>On the 30th of October 1834, a decree was made for the sale of a - tract of land, on a credit of six, twelve and eighteen months. Before the decree, there had been a contract to rent the land, and pursuant to that contract, a lease was made for a year, commencing the 25th of December 1834 and ending the 25th of December 1835. During this year, to wit, on the 10th of January 1835, sale was made under the decree. That sale being confirmed and a conveyance executed to the purchaser, Held, the purchaser must be considered complete owner from the date of the sale, and entitled to the rent which became due after-wards.</p> <p>In such case, if the rent has been paid to the representative of the former owner, the purchaser may recover it from him by an action of assumpsit for money had and received.</p>

This was an action of debt in the Circuit court of Wythe county by Francis Smith’s executor against William H. Spiller. The action was on a bond in the following words: $4,000. Four years after date I bind myself, my heirs, &c. to pay Francis Smith or order four thousand dollars, for value received. Witness my hand and seal this 30th September 1823. Wm. H. Spiller. [Seal.] As the pleadings were finally made up, the issues were upon two pleas filed by the defendant.

Zachariah Shugart, the owner of land on one side of the middle fork of Holston river in the county of Smyth, desiring to erect a dam across the stream for the purpose of working a saw and grist mill and other machinery, gave notice to William Byars guardian of John Irons junior, the owner of the land against which the dam would have to be abutted, that he would apply to the court of Smyth county for a writ of ad quod damnum.

This was an action of trover in the Circuit court of Randolph county brought in 1850 by Ely Philips and others, legatees of Richard Kittle, against the executor of William Martiney deceased, to recover the value of a slave named Elijah. The defendant pleaded the general issue and the statute of limitations. On the trial the parties waived a jury and submitted the case to the court.

<p>This was a suit in equity in the Circuit court of Monroe county, instituted by James M. Niekell and Robert Miller against Henrietta F. Handly and Isaac Campbell, to subject certain property held in trust by Campbell, to satisfy debts due to the plaintiffs by Henrietta F. Handly. The case is fully stated by Judge Samuels in his opinion.</p>

<p>Case for slander, brought by John Chrisman against Abraham Lincoln in the circuit court of Rockingham. The words alleged to have been spoken imported that the plaintiff had perjured himself. Issues were joined on the following pleas, to wit: 1. Not guilty; 2. Not guilty within one year; 3. That the matter to which the plaintiff deposed was untrue.</p> <p>At the trial, the plaintiff, after proving that the words in the declaration mentioned were spoken by the defendant within twelve months prior to the institution of this suit, introduced a witness to prove the speaking by the defendant of the same and like words more than twelve months before the institution of this suit, and, on some occasions, several years prior thereto. This evidence, though offered merely for the purpose of shewing the defendant’s malice towards the plaintiff, was objected to by the defendant’s counsel; but the court overruled the objection, and permitted the evidence to go to the jury.</p> <p>Afterwards the plaintiff’s counsel introduced a witness to prove the general character of the plaintiff. He asked the witness what was the plaintiff’s general character, when on oath and when not on oath, as a man of truth ? and the witness answered the question favourably to the plaintiff. The defendant’s counsel then, in crossexamining the witness, asked him what was the plaintiff’s general moral character ? To this question the plaintiff’s counsel objected, and the court sustaining the objection, the witness did not answer the question.</p> <p>To these two opinions of the court, the defendant’s counsel excepted.</p> <p>The verdict returned by the jury was recorded, in the first instance, in the following terms: “that the said defendant is guilty in manner and form as the plaintiff in his declaration against him hath complained, and they do assess the plaintiff’s damage, by occasion thereof, to 700 dollars besides the costs.” On a subsequent day of the term, the court, perceiving that there was a mistake in the entry, corrected the same, and recorded the verdict as follows: “that the defendant is guilty in manner and form as the plaintiff in his declaration against him hath complained, and that the words in the declaration alleged to have been spoken by the defendant of the plaintiff, were spoken by the defendant within one year before the commencement of this suit, and that the said words, so alleged to have been spoken by the defendant of the plaintiff, were not true, but false and slanderous words, as spoken of him the plaintiff by him the said defendant, as the plaintiff by replying hath alleged, and they do assess the plaintiff’s damage, by occasion thereof, to 700 dollars besides the costs.” Judgment was thereupon entered for the plaintiff, for the damages so assessed, and his costs.</p> <p>To this judgment a supersedeas was allowed, upon-a petition assigning the following errors:</p> <p>1. That the opinion first mentioned was wrong. The effect of it was to deprive the defendant of the benefit of his plea of the statute of limitations. Besides, the evidence objected to was of words actionable in themselves, and such words cannot be proved in order to aggravate the damages by shewing malice; they constituting a distinct injury, for which the plaintiff had his remedy by action. The circumstance that he chose to waive that remedy until it was barred by the statute, furnishes no reason for reviving it indirectly in a collateral action, especially as the words already proved were in no wise equivocal or ambiguous. In no point of view can words spoken previously to the grievance complained of and proved, be permitted to aid the plaintiff or prejudice the defendant.</p> <p>2. That the other opinion given at the trial was wrong. In relation to the veracity of a plaintiff, no distinct opinion may have been formed by the public, and a defendant may fail in proving a plaintiff’s character bad in that particular, while he may, by the most satisfactory evidence, prove that the plaintiff’s general cbarac- . ter is infamous. Such a plaintiff cannot be entitled to the same measure of damages as one whose character is unblemished. A notorious rogue, perhaps just from the penitentiary, ought not to recover as heavy damages for defamatory words in relation to his veracity,, as a man free from all exception. Besides, in this .case, the subject of the plaintiff’s general character was introduced by the plaintiff himself, and he had no right to exclude part of it, though be was at liberty to enquire into the grounds upon which the public belief was founded.</p> <p>3. It appears .that the verdict, as found by the jury, responded only to the issue upon the plea of not guilty, and the court has undertaken, on a subsequent day, to correct the verdict and make it respond to other issues. In so doing, the court has exceeded its authority.</p>

Assumpsit in the county court of Wythe, by David Straw against Henry Hoppess. The declaration contained three counts.

On the 8th ol May 1828, James Callison obtained a judgment in the superior court of law for Greenbrier county, against John Mays, for 148 dollars 63 cents damages, with interest from the 7th of September 1825 till paid, and the costs of suit. On the day of the judgment, Mays prayed an appeal to the court of appeals, and upon his entering into an appeal bond with Patrick Beirne as his surety, the appeal was allowed.

<p>1. In a writ of right the writ and count are against four persons by name. The plea states the surname of one of the four differently, but it speaks of them as the aforesaid, &c., referring to the persons mentioned in the count. The replication to the plea gives the name as in the count. After verdict for the tenant it is too late to object to this error if it be such.</p> <p>3. In a writ of right the demandants claim as heirs of B the patentee of the land; and they claim upon the seizin of their ancestor. They must prove that they are the heirs of B.</p> <p>3. In the pleadings and verdict the demandants are spoken of as the heirs of B. This is not proof that they are the heirs.</p> <p>4. The report of the surveyor who surveyed the land in controversy under the order of the court speaks of one of the demandants as heir of B. This is not evidence that he is such heir.</p>

By a deed made the 20th of November 1834, William Jones conveyed to Charles C. Gibson a negro man by the name of Allen, in trust for the purpose of securing the payment, on or before the first of January 1835, of 342 dollars 54 cents to Jacob Clarice, and 172 dollars 34 cents to Wallis 8f Gibson. Clarice, on the 11th of December 1834, transferred his interest in this deed to Findlay Sf Mitchell.

Christian Schultz, late of the county of Wood, departed this life in May 1830 ; and at the June term of the County court of that county in the same year, a paper writing dated the 22d of May 1818, purporting to he his last will and testament, was produced in court, and admitted to prohat as such last will and testament j and upon the motion of Nancy Schultz, widow of said deceased and one of the executrixes named in the will, she was admitted to qualify as such executrix.

On the 16th of January 1811, William Robinson junior executed a writing under his hand and seal, whereby he acknowledged that he was bound to Arge Allen to convey to him in fee simple the out lot numbered two, in Parkersburg, upon his payment of the purchase money specified in his two notes of equal date therewith, for 94 dollars 37 cents each, one payable the 1st of September 1811, the other the 1st of September 1812.

On the 8th of February 1823, Erasmus Stribling, Alexander R. Givens, James Turk, David Golloday, A. Anderson and Alexander Nelson executed an obligation to pay do Samuel Blackburn, on demand, 3775 dollars, for the payment of which they bound themselves and their heirs, jointly and severally, in the penal sum of 7550 dollars.

On the 12th of December 1785, a patent was issued to David Ross for twelve hundred acres of land lying on Catawba creek in the county of Botetourt; and on the 13th of May 1786 another patent issued to Ross for four hundred and eighty aeres of land lying on the same creek. The boundaries of these two tracts interlocked, and both covered the piece of land which was the subject of controversy in this case.

On the 8th of May 1828, James Callison obtained a judgment in the superior court of law for Greenbrier county, against John Mays, for 148 dollars 63 cents damages, with interest from the 7th of September 1825 till paid, and the costs of suit. On the day of the judgment, Mays prayed an appeal to the court of appeals, and upon his entering into an appeal bond with Patrick Beirne as his surety, the appeal was allowed.

<p>This was an action of ejectment in the Circuit court of Jackson, brought in April 1844, by Jacob Staats’ lessee against John Board and Charles Board, to recover a tract of fifteen hundred acres of land. On the trial the plaintiff introduced in evidence a patent from the commonwealth bearing date the 10th day of February 1786 to Savary De Yalcoulon for fifteen hundred acres of land, being the land sued for; and also the will of said Savary duly admitted to probat, by which he devised all his real estate to Bobert Alexander of Kentucky. The plaintiff also introduced the report of the commissioner of delinquent lands for the county of Jackson, and the proceedings thereupon; by which it appeared that this land had been forfeited for the failure to enter it upon the commissioners’ books; and that in 1841 the same had been decreed to be sold and was sold as forfeited land, and was purchased by Daniel Gr. Morrill, who afterwards conveyed it to the plaintiff.</p> <p>The defendants on their part introduced a title bond bearing date the 1st of October 1833, by which James T. Watson, reciting that he had sold to John Board a tract of one hundred and twenty acres of land in the county of Jackson, lying as therein described, bound himself to make to Board a valid conveyance for the same when the purchase money was paid. And they proved that in 1833 John Board took possession of the land described in the bond, erected houses and cleared portions of the land, and had resided thereon continually with his son, the other defendant Charles Board, claiming and using said land as his own under and in pursuance of said bond. And it was proved that the land so claimed and occupied by the defendants, is embraced within the boundaries of the grant aforesaid to Savary. And this being all the evidence introduced by the defendants, the court upon their motion, instructed the jury, “ That if they believed from the evidence that the defendants entered upon said land and took possession thereof under said title bond, claiming and using it as their own, and have continually held such possession for more than seven years prior to the institution of this suit, that they are entitled to the benefit of the protection of the statute of limitations, notwithstanding the grant to the said Savary and the forfeiture, sale and purchase thereof, as disclosed by the evidence adduced by the plaintiffs.” To the giving of this instruction the plaintiff excepted; and there being a verdict and judgment for the defendants, he applied to this court for a supersedeas, which was awarded.</p>

<p>1. The statutes of Virginia forfeiting lands to the commonwealth for the failure of the owners to enter them upon the commissioners’ boohs and pay the taxes due thereon, are constitutional.</p> <p>2. The forfeiture under these statutes is perfected without a judgment, decree or other matter of record, or an inquest of office; but by the operation of the statutes the title is divested out of the owner and is vested in the commonwealth.</p> <p>3. In such cases where the title is vested in the commonwealth, and the forfeiture enures to the benefit of á third person claiming under the commonwealth by virtue of another and distinct right, the transfer of the title to such person is, in like manner, perfect and complete without any new grant from the commonwealth, or any proceeding to manifest the transfer, by matter of record or otherwise.</p> <p>4. Land omitted to be entered by the owner on the commissioners’ books, were forfeited under § 2 of the act of February 27th, 1835, Sessions Acts 1834-5, p. 12; and the forfeiture became perfect and consummate on the 1st of November 1836, the period limited in which the forfeiture might be saved by complying with the provisions of the act of March 23, 1836. Sessions Acts 1835-6, p. 7.</p> <p>5. A party claiming under a grant from the commonwealth issued in August 1836, cannot claim the benefit of an older title forfeited to the commonwealth, under the act of the 27th of February 1835, because by that act a forfeiture only enured to the benefit of those who claimed title under a grant from the commonwealth bearing date before April 1st, 1831.</p> <p>6. Nor can such a party sustain such a claim under the provisions of the act of March 30th, 1837, unless he is a bona fide occupant of the land.</p> <p>7. To sustain such a claim under § 16 of the act of March 16,1838, Sessions Acts 1837-8, p. 21, the part)7 must have been at the date of the act in the actual possession and occupancy of the land forfeited or parcel thereof, with title bona fide claimed or derived under grants from the commonwealth which issued subsequent to the 31st of March 1831 and prior to the 15th of January 1838.</p> <p>8. By the act of March 18th, 1843, Sessions Acts 1840-41, p. 31, the forfeiture of title to the commonwealth only enures to the benefit of those then in actual possession of the forfeited land under claim of title through a grant from the commonwealth. Though at that time a party held a patent for the land, yet if he was in actual possession under a lease from another person claiming the elder title, that is not the actual possession contemplated hy the statute.</p> <p>9. By the act of March 22d, 1842, Sessions Acts 1841-2, p. 13, § 3, the title to forfeited lands is transferred to and vested in such persons, other than those for whose default the same may have been forfeited, as had title or claim legal or equitable, derived under a grant from the commonwealth bearing date prior to the 1st of January 1843; without making either actual occupancy or possession of the land, or a bona fide claim of title, any part of the condition on which the transfer of the title takes effect.</p> <p>10. Though the land had been reported to the court as forfeited land, and an order had been made for the sale thereof, yet if not actually sold before the passage of the act, the title is transferred under the statute.</p> <p>11. The act of March 22d, 1842, is retrospective in its operation.</p> <p>12. A tenant who surrenders possession at the end of his term, or from whom possession is recovered, is not concluded by the existence of such tenancy at one time, or by the deed 'of lease which he executed, from contesting the title of his former landlord.</p>

On the 17th of October 1814, Lilburn Henderson filed a bill in the superior court of chancery holden at Wythe courthouse, setting forth, that in the lifetime of William Trigg, a mercantile partnership existed between the complainant and him, which continued until his death. That during their said partnership, they purchased a lot, with the buildings thereon, on the main street in the town of Abingdon, and two back lots in said town.

This was a writ of right in the Circuit court of Carroll county, brought in August 1846, by Fielden L. Hale against James Branscum, to recover a tract of seven hundred and ninety acres of land. The mise was joined on the mere right; and on the trial which took place in August 1848, the jury found a special verdict. In this verdict it was found that the tenant had been in possession of the land in controversy for about twenty years.

<p>The act of February 9th, 1814, 2 Rev. Code 542, concerning taxes on lands, § 24, 25, directs the sheriff to advertise a sale of delinquent lands at the May, June and July terms of the court of his county, and to publish the advertisement at least once every week for two months preceding the time of sale, in some newspaper published in the city of Richmond. Section 28 directs him to execute a deed to the purchaser at such sale, reciting the circumstances thereof, and setting forth particularly and truly the amount of the purchase money. Section 38 provides that after the time of redemption allowed has elapsed, the regularity of the proceedings under which the purchaser at the sale claims title shall not be questioned, unless such irregularity appear on the face of the proceedings. Held :</p> <p>1. That by the circumstances of the sale which are to be recited in the deed, is not meant all the steps to be taken by the various officers, which preceded the sale; but the circumstances attending the sale itself, viz: That the sale was made at the time and place prescribed for the sale of lands returned delinquent; if less than the whole lot or tract was sold how much was sold; who was the purchaser and the amount of the purchase money.</p> <p>2. It is not necessary that the deed shall recite that the land had been advertised.</p> <p>3. If the deed recites that the land was advertised at the courthouse door of the county for two months, but does not state that it was at the May, June and July terms of the court for the county or in a Richmond paper; yet as it was not necessary to recite in the deed that the land had been advertised, the recital in the deed of an insufficient advertisement is not an irregularity on the face of the proceedings, which will avoid the deed.</p> <p>4. The deed cannot be questioned by parol proof of a failure to advertise the sale as the law prescribes.</p> <p>5. If the deed is defective, it is competent evidence to show with other evidence an actual entry under a claim of title, and con. tinued holding thereunder, so as to make out a title or right of entry by actual possession. Possession so taken and continued for the time prescribed might ripen into a right of possession, and so bar the right of entry of the opposing party.</p>

<p>A bill alleges matters as grounds for impeaching or setting aside a settled account, and all of those matters are denied by the answer; but an order of account being made, proofs are adduced, which, though they do not sustain the specific objections taken in the bill, ascertain that the settlement may be justly surcharged in other respects. Held, although, according to the strictest and most formal practice, the plaintiff may be required to amend his bill and urge therein the objections to the settlement shewn by the evidence, yet it is competent to the court to ■dispense with this proceeding, and permit the plaintiff to proceed in respect to the objections shewn by the evidence, in like manner as if they had been noticed by the bill.</p> <p>In such case, if the defendant object that he is surprised by the new objections to the account, the court may and ought to give him time to combat them; and if he urge the privilege he would have by answer to an amended bill, to explain and defend the account in these respects, that privilege may and ought to be secured to him, by allowing him to file his affidavit containing such explanation and defence, and by giving to such affidavit the lijce credit and effect, as his answer containing the like matter would be entitled to. Per Stanard, J.</p> <p>On a bill impeaching a settled account, the title of the complainant to relief depends on his success in shewing errors against him in the settlement, and when the court directs an account to 'be taken, the commissioner, in executing the order of account, ■should confine himself to a statement of those errors, the sum of which is the proper measure of relief.</p> <p>Articles of agreement are several times made between the same parties, each for the sale of a separate parcel of the same tract of land. The articles, on most occasions, import that a good and sufficient title is to be made by a specified time, and that the vendee is to pay when such title free of all incumbrance is made. In some of the articles it is stated, that the vendee is to pay in one month after such title is made; and on one occasion the articles, after mentioning that the money is to be paid so soon as such title is made, and after specifying the time when the title is to be made, proceed to state that if the vendee pay sooner, lie is to have interest for the amount paid, and peaceable possession of the land until the obligation is complied with. By virtue of these stipulations and agreements, the vendee (although in possession and receiving the profits) claims interest on all sums paid by him before a title is made him free of incumbrance. This claim is afterwards compromised. The commissioner, and the court below, disregard the compromise as well as the articles of sale, and allow the vendee interest on his payments, only until he obtains possession. Held, the compromise ought not to be disturbed, unless on specific allegation and proof of fraud, imposition or mistake.</p>

This was an action of ejectment in the Circuit court of Kanawha county, by Chapman’s lessee against Augustine J. Smith and Joseph Hamrick. The plaintiffs claimed under a patent to George Keith Taylor for ninety-four thousand six hundred acres of land, situate in the county of Kanawha. This land was conveyed by Taylor to Douthat and Chambers.

The writing on which this action was founded was in these words: “ I agree to settle with Thomas Bland sheriff of Lewis county, who has an execution in his hands against H. Jackson, in the name of Vandeventer and others, to the amount of 320 dollars, and then to pay unto H. Jackson the further sum of 255 dollars, and it is to be understood that the said Cummins Jackson is to have a credit for the above 255 dollars, or what Hyer Jackson may agree to pay for four lots back of…

The declaration in this case was in these words : Squire Sayre complains of the president and directors of the northwestern turnpike road, in custody &c. of a plea of trespass on the case.

Adam Dirting owning a man of colour named Ben, sometimes called Ben Ware, as his slave, died intestate, leaving his sons John Dirting and Adam Dirting his sole distributees, who received the slave from the administrator of their father’s estate, in a course of distribution. Afterwards, to wit, on the 6th of May 1830, Adam Dirting, for the consideration of 200 dollars, sold to John Dirting his moiety of the slave, and from that time John had him as sole owner.

This was an action of debt, at the relation of the plaintiffs in error, on the official bond of Alexander Catlett executor of John Catlett senior. The declaration averred the recovery of a judgment by the plaintiffs in error against the executor on a single bill of his testator, and a return of nulla bona on the execution.

This is an action of covenant brought by Edward Burch against Charles Cordle, on two obligations of Josiah Holley and his sureties, of whom the defendant was one; by one of which obligations the obligors bound themselves to pay unto the plaintiff, Edward Burch of Chesterfield district in the state of South Carolina, whatever sum of money he might be compelled by law to pay for the said Josiah Holley, “ he, the said Burch having become the said Holley’s security for costs in…

<p>In the case of The Bank of Marietta v. Tindall &fc. 2 Rand. 465. this court considered that the plaintiffs should recover against the defendant 2500 dollars, with legal interest thereon from the 29th of August 1815 till payment, and their costs in the superior court of law expended.</p> <p>On the 11th of December 1824, an agreement was made between James Tindall and John J. Allen attorney of the bank of Marietta, which, after reciting the judgment, proceeded as follows :</p> <p>“And whereas the said Tindall hath this day, under this agreement with the bank, paid 1500 dollars (as per receipt given) applicable to so much of said principal sum of 2500 dollars, and not applicable to the interest or costs, the residue of the principal shall continue on interest till paid. The said James hath a suit depending in chancery against Benjamin Wilson junior, to obtain from him an indemnity against said judgment, or to reimburse himself for the payment thereof, and hath this day assigned, and hereby doth assign, to said bank so much of the first money to be recovered in said suit as shall be sufficient for the payment of said interest and costs. The said bank agrees to wait for said interest and costs till the final determination and event of said cause; but if, by such determination, the said James Pindall should not recover, or not recover enough to pay said interest or costs, or if, after obtaining a decision in his favour, the same cannot be collected, either by reason of the insolvency of said Wilson or otherwise, then the aforesaid assignment shall not be taken or considered as a payment of said interest and costs, or only a payment of so much as shall be obtained and received by the bank in said cause. The bank or their attorney shall, whenever they request (being such assignees) be entitled to control so much of said suit as relates to their interest therein, but will not, without consent of said James, throw any obstacle in the way of the prosecution of said cause. The said judgment is to remain as a security for the fulfilment of this agreement on the part of said James ; and after the event of said chancery cause can be known, if, under this agreement, the said James becomes liable for said interest and costs, an execution may issue without any scire facias.”</p> <p>Besides the sum of 1500 dollars paid under the agreement on the day of making the same, and for which a receipt was given as therein mentioned, Pindall, on the 18th of June 1825, paid the further sum of 516 dollars 79 cents, and subsequently paid as much more as was equal to the balance of the principal, with interest on the 1000 dollars not paid at the date of the agreement, from the time of that agreement.</p> <p>The suit against Wilson was proceeded in, after his death, against his administratrix; and by the decree rendered in that suit the 30th of May 1832, it was ascertained that the whole of Wilson’s estate would be ■exhausted in paying preferable claims, and that Pindall would neither be reimbursed for the payments he had made, nor obtain any money from the suit, to satisfy the interest and costs remaining due.</p> <p>Afterwards the bank of Marietta filed a bill in chancery in the circuit court of Harrison, against PindalVs executrix, devisees and legatees, to recover from his estate the balance due upon the judgment.</p> <p>In this suit, the commissioner to whom the accounts were referred, stated the balance due upon the judgment in three ways : 1. Shewing that the interest on the original principal from the 29th of August 1815 to the 11th of December 1824 amounted to 1392 dollars 50 cents, and that the costs to be added thereto amounted to 57 dollars 56 cents, making together 1450 dollars 6 cents. 2. Deducting from the 2500 dollars paid as of the 11th of December 1824, 1450 dollars 6 cents for the amount of interest and costs, and then deducting the balance of 1049 dollars 94 cents from the original principal, whereby there was stated to be due of principal money 1450 dollars 6 cents, on which interest was calculated from the 11th of December 1824. 3. Treating the principal as paid, as in fact it was, and on 1392 dollars 50 cents, the interest to the 11th of December 1824, calculating interest from the 30th of May 1832 (the time of the decree in the suit against Wilson), and then adding the costs, whereby a sum was made due, on the 10th of May 1838, of 1946 dollars 72 cents.</p> <p>On the 25th of May 1838, the circuit court declared its opinion to be, that on the interest and costs, the plaintiffs were not entitled to interest from the date of the agreement, but that they were entitled to interest from the time at which they had a right, under the agreement, to resort to Pindall, viz. from the date of the decree in the suit against Wilson; and therefore the court, approving the third way in which the account was stated, pronounced a decree in favour of the plaintiffs for 1946 dollars 72 cents, with interest on 1392 dollars 50 cents from the 10th of May 1838.</p> <p>F rom this decree an appeal was allowed on the petition of PindaWs representatives.</p>

<p>The owner of slaves in Virginia took them with him in November 1831 to New York, with the intention to emancipate them, and there he executed a deed of emancipation attested by one witness. After remaining in New York a few days, he returned to Virginia, bringing the negroes with him; and ever after during his life he treated them as free. Held :</p> <p>1. The owner of the slaves having taken them to New York for the purpose of emancipating them, they were by the laws of New York free, and so continued after their return to Virginia.*</p> <p>2. The acts of the owner of the slaves was not such a fraud upon the laws of Virginia as rendered his acts null and of no effect.</p>

<p>An action of slander is commenced on tlie 21st of July, in a circuit court; but the judge of that court being related to one of the parties, an order is entered on the 27th of September, by-consent of the parties, sending the case to the county court. On the 20th of November, a motion is made to the county court for a continuance, on the ground that the defendant had been confined to his bed by sickness for some time previous, and was still so confined, so that he could not attend to the case in person and prepare himself for trial; and it is admitted by the plaintiff’s counsel that such had been and still is the situation of the defendant. But a trial being nevertheless urged, the court is divided on the motion for a continuance, and the same being overruled, a verdict and judgment are rendered against the defen- - dant. Held, the county court erred in so ruling the defendant to trial, at the term next after the cause had been transferred to that court, and at which it was docketed in that court for the first time.</p> <p>Parties may, by consent, make up the pleadings and issue in a case, and have it docketed in any court having jurisdiction to try such a case; and on the parties appearing before the court in which a case may be so docketed, and making no objection to the regularity of the docketing of it, that court may exercise jurisdiction over the case; and an objection to the jurisdiction of the court, made for the first time after the trial of the case and judgment therein, cannot he sustained. Per Stanard, J.</p>

<p>On the first day of November 1834, William Spencer and John F. Snodgrass entered into a bond to Alexander H. Pilcher in the penalty of 700 dollars, with a condition whereby—after reciting that two negro men named Williamson and Casar, the property of Spencer, were then in the custody of Jonas Beeson high sheriff of Wood county, by virtue of a fieri facias issued from the office of the circuit court of Wood, at the suit of Alexander H. Pilcher, against' the goods and chattels of Spencer, for 317 dollars which Pilches- had recovered in that court for certain damages, and'also 29 dollars 30 cents which by the same court were adjudged for his costs, amounting in the whole to 362 dollars 85 cents, including sheriff’s commission and fee for the bond— it was provided that if Spencer should deliver to the sheriff the aforesaid property at the courthouse of Wood county on the third monday of November next, it being the time and place appointed for the sale of the aforesaid property, then the said obligation was to be void.</p> <p>In the circuit court of Wood on the 2d of April 1835, there was a motion by Pilcher against Spencer and Snodgrass on this bond. Legal notice of the motion was proved by the oath of John R. Murdoch, a deputy sheriff, and the defendants were called but came not. Whereupon the motion was continued until the next term. Other continuances w-ere entered from term to term, until September term 1837.</p> <p>At that term, the defendants resisted the award- of execution on the bond, on the ground that the notice proved was given on the 12th day of January 1835 for April term 1835, and that in fact the bond was not forfeited at the time the notice was given. But the court overruled the objection, and decided that the bond was forfeited on the 3d monday of November 1834; being of opinion that the true construction of the condition of the bond required the property to be delivered to the sheriff on the first 3d monday in November after its date. The defendants then stated to the court that the judgment on which the execution issued, and on which the bond was taken, had been superseded by the award of a writ of supersedeas by the court of appeals, and shewed to the court, by the supersedeas bond, that the supersedeas had been perfected by giving bond and security on the 17th of January 1835. There was no certificate of any kind from the clerk of the court of appeals to the circuit court, shewing that the supersedeas had been tried or in any manner disposed of; but the court, though satisfied that this bond was taken under the judgment which had been superseded, overruled the last objection, because the judge knew, unofficially, that the supersedeas had been tried and the judgment affirmed. To all wffiich opinions and decisions of the court, the defendants excepted.</p> <p>Judgment was thereupon entered for the penalty of the bond and costs, to be discharged by the sum mentioned in the condition, with interest and costs. On Sfencer’s petition, a supersedeas was awarded to that judgment.</p> <p>At the end of the record, the clerk copied the writ of fieri facias returned with the bond and remaining filed therewith. The writ bore date the 3d of October 1834, and was returnable the first monday in December following.</p>

<p>1. The sureties of a public officer are not excluded from the benefit of the bankrupt law of 1841.</p> <p>2. The states are not subjected to the provisions of the bankrupt law of 1841; and the discharge of a bankrupt does not discharge him from his liabilities to the state.</p>

By a deed made the 21st of May 1821, between George W. Banks of the county of Essex of the one part, and Lawrence Muse of the same county of the other part, the former conveyed to the latter certain real property and personal chattels, in trust that Muse should hold the same to the use of the said George W» Banks and Charlotte his wife during their lives, without being subjected to any debt or contract theretofore made by the said George, or which he might thereafter make or…

The only question involved in this appeal is, Whether the appellant Edmund George, is entitled to a credit for four hundred and eight dollars and nineteen cents, with interest, the amount of a certain bond of Allen & Walthall, on a judgment obtained against him by the appellees as executors of Gideon A. Strange ? Another subject was involved in the controversy in the court below, but no objection is made to the decree which was rendered thereon.

<p>The mutual assurance society more for judgment against two defendants, on a notice which is made part of the record, and shews that the motion is for quotas due the society per declarations numbered 1044, 778 and 1946. The defendants acknowledge legal notice of the motion, and the same is continued until the next term. At a subsequent term the plaintiffs obtain a judgment; the defendants “now failing to appear.” The declarations of assurance referred to in the notice are filed by the plaintiffs, and copied by the clerk as part of the record for the appellate court. They shew that by the judgment, quotas which accrued after the property was insured by two persons, are recovered jointly against one of those persons and a former owner • of the property. Held, 1. 'that the declarations of assurance constitute part of the record; and 2. that the judgment is thereby ascertained to be erroneous.</p>

<p>1. All injunction to a judgment at law will not be sustained where defendant at law has failed to make his defence at law, from ignorance of the nature of the proceeding against him, and a misapprehension of the steps it was necessary to take in order to subject him.</p> <p>2. The mere averment by a plaintiif in his bill asking for an injunction to a judgment at law, of the facts constituting his excuse for not defending himself at law, is not sufficient; he must prove them.</p>

On the second of July 1834, Gideon Howland sued out of the office of the circuit court of Henrico a subpoena in chancery against Daniel Platt and Jonathan W. Beers, with an indorsement thereon, stating that' it was “ to attach the estate, moneys, debts, goods and effects of the defendant Daniel Platt in the hands of the other defendant, so that he be restrained from paying away, conveying or secreting the debts by him owing to, or the moneys, goods and effects in his hands…

John B. Armistead declared against John C. Armistead and Robert L. Armistead, in debt. After a demurrer by the defendants, the plaintiff filed an amended declaration, containing five counts.

In the year 1841 Thomas Payne of Greens-ville county, being' greatly embarrassed and having left the state, James S. French, who had advanced money and incurred liabilities for him, went in search of him; and meeting him in Baltimore, an arrangement was made between them, in pursuance of which Payne executed to French two instruments, both bearing date the 1st day of December 1841, and acknowledged before two justices of the peace in the city of Baltimore on the next day:…

<p>A testator directs his executors to set apart so much of his property, not specially bequeathed, as they may think sufficient to produce a clear annual income, by rent or interest, of 2000 dollars, which amount he desires them to pay in manner following, viz. the sum of 500 dollars annually to his sisters and niece, to be paid to each of them for and during her life. The executors fail to set apart property as directed, and die largely indebted to the estate, and wholly insolvent. In a suit by one of the annuitants against the administrator de bonis non, she claims not only the principal which the executors failed to pay her, but interest thereon. Held, to decree for such interest against the administrator de bonis non, and thereby diminish the estate of the residuary devisees and legatees, is- erroneous.</p>

<p>1. A sheriff may have leave to amend his return upon an execution, after notice of a motion against him founded on the original return : And the amended return may be made by a deputy who did not make the first return.</p> <p>2. A second notice to the sheriff is not necessary after the amended return; but the plaintiff may proceed upon the original notice.</p> <p>3. Under the act, I Eev. Code of 1819, ch. 136, § 3, an action of debt may be maintained against a sheriff for either a willful or negligent escape.*</p> <p>4. In order to maintain the action, it is only necessary for the plaintiff to show the escape, which may be done by evidence aliunde the return on the execution: And to defeat the action the sheriff must show that the escape was tortious, and that fresh pursuit was made.</p> <p>5. Upon proof of the escape, the jury are bound to presume all that is necessary, under the statute, to be found in their verdict, unless and until the sheriff' negatives by his proofs all consent or negligence on his part, and also shows that he has used due means to retake the prisoner.</p> <p>6. Under the act, 1 Eev. Code of 1819, ch. 134, § 48, p. 542, a motion may be maintained against a sheriff for an escape. 1st. Where the return on the execution states that the officer has taken the body of the debtor and has it ready to satisfy the execution, and the plaintiff can show the escape aliunde. 2d. When the return shows such a state of facts as would entitle the plaintiff to a verdict in an action of debt for an escape.*</p> <p>7. Upon such a motion the court occupies the place of a jury as to the facts, and is bound upon a return of “ executed,” and upon the proof of an escape, to presume that it was with the consent of the sheriff; unless he proves that it was without his consent or negligence, and that he had used due means to retake the prisoner.</p> <p>8. The fact that the County court has not provided a jail in which a debtor taken in execution may be confined, does not authorize the sheriff who has taken a debtor on an execution, to permit him to go at large: If no jail is provided by the County court, it is the sheriff's duty to provide one, and to keep the debtor whom he has taken in execution, in custody.</p> <p>9. A return by the sheriff that the County court had not provided a jail, and that he had therefore permitted a debtor taken in execution to go at large, itself shows an escape, and will sustain a motion against the sheriff.</p> <p>10.. A return by the sheriff that the County court had not provided a jail, and that a debtor taken in execution had escaped without his consent or negligence; without adding that he had used due means to retake Kim, is not sufficient to protect the sheriff; but a motion may be maintained against him upon the return.</p>

Thomas Shore died in the year 1800, and by his will devised the tenement and plantation on which he lived, called Violet Banlc farm, in Chesterfield, to his wife Jane Shore for life, remainder to his three daughters Jane, Elizabeth and Louisa, or such of them as should be liv- - ihg at his wife’s death.

<p>1. A testamentary paper signed and acknowledged in the presence of witnesses, who are requested to attest it, and attested by them out of the presence of the testatrix, so that it is not good as a written will, cannot be set up as a nuncupative will.</p> <p>2. A nuncupative will to be valid must be made in the last sickness of the testator, when he is in such extremity that he has not the ability and opportunity to make a written will.</p>

This was an action of ejectment in the Circuit court of Chesterfield by William H. Tayloe and others, the heirs of John Tayloe, against Smith.

John Carlton late of the county of King Sf Queen, some three or four years before his death, made and published his last will and testament, whereby he devised and bequeathed his whole estate, real and personal, to his two children Mary and Thomas Carlton.

<p>This was an action of detinue in the Circuit court of Bedford county brought in 1835 by Barnabas A. Eidson and Robert Campbell against Abel B. Nichols, to recover two slaves, Lydia and Moses. The cause was delayed until 1842 by the pendency of a suit in chancery between Charles C. Patterson and Thomas Campbell’s executors. In September 1841 the death of Eidson was suggested, and the action was thenceforth carried on in the name of Robert Campbell as plaintiff.</p> <p>The cause came on for trial in October 1845, when the plaintiff to sustain his action introduced a deed bearing date the 26th day of January 1824, by which Charles C. Patterson conveyed to Eidson and Campbell four slaves, of whom Lydia and Nancy were two, in trust to secure to Thomas Campbell a debt of seven hundred and fifty-two dollars and fifty-seven cents, with interest from the date of the deed; and he introduced a witness to prove that Moses was a descendant of Nancy, and that Lydia and Moses were in the possession of the defendant. Thereupon the defendant proposed to prove by the same witness that Charles C. Patterson had sold to Thomas Campbell in his life time a family of negroes, viz: Mary, Caleb and Nelson> a-t the price of nine hundred and fifty dollars, in and discharge of said deed, and the debt -¿jjgrein mentioned. To this the plaintiff objected; and £0 sustain his objection offered in evidence to the court the copy of the record in a chancery cause in which Patterson was plaintiff and Thomas Campbell was defendant, in which as the plaintiff contended, and the court below and this court held, it had been decided that the price of said slaves was properly applied as a credit on another bond of Patterson’s for three thousand dollars, held by Thomas Campbell. This case came up to the Court of appeals and is reported in 11 Leigh 113, in the name of Campbells v. Patterson, to which reference is made for the facts. The other additional facts are stated in the opinion of the court. And it being admitted by the defendant that these were the same slaves and the same sum of money in controversy in that suit, the court being of opinion that it was not competent for the defendant to prove anything in conflict with the decree in said cause, sustained the plaintiff’s objection, and refused to let the defendant introduce the evidence : And the defendant. excepted.</p> <p>The defendant in order to sustain his defence, offered in evidence a deed bearing date in March 1829, by which Patterson conveyed to Joseph Wilson, among other property, the slaves in controversy in this cause, in trust to secure a debt of seven hundred and three dollars, due on the 1st of January 1830, and also a debt of three hundred and seventy dollars, payable at ' the same time, due to the defendant; and proved that the slaves in controversy were purchased by him under a sale made by the trustee in this deed. And he then proposed to prove that the debt secured by the deed under which the plaintiff claimed was paid; and as evidence tending to show a partial payment of the said debt, offered to read tbe reports of the coraraissioner and marshal and the orders and decrees^ made in the above mentioned suit of Patterson v. Campbell's ex'ors. To this evidence the plaintiff objected; and the court sustained the objection : And the defendant again excepted.</p> <p>The defendant further offered to prove that the deed of trust of the 2Gth of January 1824, under which the plaintiff claimed, was made upon a usurious consideration, and for the purpose of securing a usurious debt. To the introduction of this testimony the plaintiff objected, on the ground that the defendant had no right to offer testimony to contradict the record which had been offered by the plaintiff, and referred to in the first bill of exceptions. The court sustained the plaintiff’s objection and excluded the evidence: And the defendant again excepted.</p> <p>The deeds, record and evidence before stated having been introduced, and the defendant having offered evidence tending to show that Marquis D. Gray one of the administrators of Thomas Campbell deceased, was present at the time of the sale of the slaves to the defendant by the trustee Wilson, under the deed of 1829, and made no objection to the said sale, moved the court to instruct the jury, that if they should believe from the evidence in the cause, that the said Gray was present and was, as one of the administrators of Thomas Campbell deceased, one of cestuis que trust in the deed of the 26th of January 1824, under which the plaintiff claimed, and made no objection to the sale or the purchase by the defendant, that then they ought to find for the defendant. This instruction the court refused to give: And the defendant again excepted.</p> <p>In the progress of the trial the defendant offered to read to the jury a decree pronounced in the suit of Patterson v. Campbell, before spoken of, as evidence tending to show that Eidson and Campbell were not entitled to the possession of the slaves sued for at the of the institution of this action. The grounds seem £0 ]je that in that suit there was at the time the action was brought, an injunction to stay all proceedings upon the said deed of trust and the collection of the debt therein named. The plaintiff objected to the introduction of the evidence, and the court excluded it: Whereupon the defendant again excepted.</p> <p>The deed under which the plaintiff claimed having been introduced in evidence, the defendant moved the court to instruct the jury, that the said deed conveyed a joint interest to the said Eidson and Campbell, and that neither of them had a right to act under it separately: And that after the death of Eidson, the plaintiff was not entitled to recover and take the slaves mentioned in said deed, and dispose of them as surviving trustee, and by consequence, was not entitled to maintain this suit for the recovery of the same. But the court refused to give the instruction: And the defendant again excepted.</p> <p>The defendant, in order to show that the plaintiff was not entitled to the possession of the slaves in controversy, offered in evidence a decree made in October 1841, in relation to the same slaves in a cause in which Charles C. Patterson was plaintiff and the plaintiff and defendant and others were defendants. This decree dissolved an injunction which Patterson had obtained in November 1840, to prevent the sale of these slaves by the trustee Eidson and Campbell. The decree then reciting that Eidson was dead, and that Campbell the other trustee was one of the administrators of Thomas Campbell deceased, and objected to by Patterson on that ground, directed the sheriff of Bedford county to proceed to execute the deed in the stead of Eidson and Campbell. The plaintiff objected to the introduction of the evidence; and the court sustained the objection: Whereupon the defendant excepted.</p> <p>The jury found a verdict for the two slaves, and five hundred and forty-three dollars damages for their detention; and there was a judgment according to the verdict. Thereupon the defendant applied to this court for a supersedeas, which was awarded.</p>

Samuel Ayres filed his bill in tbe Circuit court of Pittsylvania, in which he charged that in 1840 he purchased of a certain Byrd Smith a lot of ground in the town of Danville for the sum of six hundred and seventy-five dollars, and for a balance of the purchase money he executed to Smith two bonds, one for fifty dollars and the other for one hundred and twenty dollars; and that these bonds had been assigned by Smith to Daniel Price, who had recovered judgments upon them.

On the 21st of December 1828, James B. Fretwell, administrator of Alexander Fretwell deceased, sued out of the superior court of law for Bucldngham county a writ of capias ad respondendum against Anderson Sf Wood-son and John Couch. The return of the sheriff was as follows: “ Executed on Geo. Woodson and John Couch, and Curtis C. Nunnally their bail.

<p>1. The lien of a judgment is not defeated by the discharge of the debtor as a bankrupt: And it may be enforced in the state courts.</p> <p>2. In such case the elegit sued out upon the judgment may be in the usual form; and in executing it the sheriff must take notice of the bankruptcy of the debtor, and disregarding all property of the debtor not subject to the lien, levy it upon that which is so subject.</p> <p>3. The act of March 3d, 1843, Sess. Acts 3842-3, p. 51, does not apply to purchasers before the passage of the act. As to such, the lien of a prior judgment is valid though-not recorded.*</p> <p>4. A prior deed of trust unrecorded is null and void as to a subsequent judgment; and the judgment is a lien upon the land embraced in the deed. '</p>

At a superior court of chancery held in the town of Fredericksburg on the 22d of May 1827, it appeared that Francis W. Scott had had ten days notice that a motion would be made by Mildred Skinker as administratrix of John Skinker, against the said Francis W. Scott as administrator of John Scott, for a fine because of the failure of Reuben Tankersley, deputy for the said John Scott as sheriff of Caroline, to return an execution which issued from the clerk’s office of the said…

On the 9th of February 1801, James Primm entered Into a bond with Patrick Home, Leonard Hill, Nathaniel Fox and Charles Ralls his sureties, which, after reciting that he had been appointed sheriff of the county of Stafford by a commission from the governor, under the seal of the commonwealth, dated the 20th day of November 1800, was conditioned that Primm should truly and faithfully collect, account for and pay the taxes imposed by law in his said county.

<p>1. Where the condition of the estate does not' require a sale of the slaves, and they are divided among the legatees or distributees, the executor is not entitled to a commission upon their appraised value.</p> <p>2. But where grain or other perishable property, which by the lawr the executor is directed to sell, is divided in kind among the legatees, the executor is entitled to a commission upon the appraised value.</p> <p>3. Where one of two executors performs all the labor of the administration, he may be allowed all the compensation; and it is not for the legatees to object to this.</p>

By an instrument under seal, dated the 26th August 1826, Thomas Ransone acknowledged the receipt of 800 dollars from Robert Frayser, in full for the purchase money of a female slave and her four children, and conveyed the slaves absolutely to Frayser, with warranty of the title. The slaves were delivered to Frayser on the same day, or not long afterwards, and they remained for some time, though not long, in his possession, and then he hired them to Ransone from time to time.

<p>Some time previous to May 1834 William O. Burton of Albemarle county departed this life, leaving a widow, and four children, Frances who was married to Daniel E. McCoy, Susan, William and Elizabeth Burton; all of whom were infants; and Joseph Bishop qualified as his administrator. In May 1834 Mrs. Burton filed her bill in the County court of Albemarle for an assignment of her dower; and the commissioners who were appointed to lay it off, reported that the real estate consisted of two lots of ground in the town of Charlottesville, on one of which there was a brick house valued at seven huudred dollars, and on the other there was also a brick house and tan yard valued at two thousand dollars: and they allotted to the widow the brick house on the last lot, by metes and bounds; and there were three slaves of which they allotted one to the widow. This report was afterwards confirmed by the decree of the court in August 1834.</p> <p>In the same month of August 1834 Daniel E. McCoy and Frances his wife filed their bill in the County court of Albemarle against Bishop the administrator and the heirs of William Burton, for a sale of the real estate and slaves belonging to the heirs of Burton not assigned to the widow. They charge that the real estate is incapable of division without great injury to the parties; and if divided the share of each heir would be of less value than three hundred dollars.</p> <p>The administrator answered consenting to a sale of the slaves; and a guardian ad litem was appointed to defend the infants, who filed an answer for them submitting their rights and interests to the protection of the court. The bill and answers seem to have been filed at the same term of the court; and no process was issued or served upon the infant defendants. At the same time two commissioners were appointed to value the real estate, except that assigned to the widow, and to report whether it could be divided into four equal parts: And Bishop was directed to sell the slaves.</p> <p>During the same term of the court the commissioners returned their report, in which they say that it ■ is certainly true that the lots can be divided into four equal parts: But that in their opinion, the interest of . all the parties concerned will be injuriously affected by such a division. They estimate the house and lot at five hundred dollars, and the balance of the tan yard lot at eight hundred dollars; but if the property is divided into four equal parts, it will not be worth more than one thousand dollars. This report was confirmed, and a commissioner was appointed with directions to sell the property in the mode and upon the terms stated in the decree.</p> <p>At the November term of the court the commissioner reported that he had sold the tan yard lot to Marshall & Bailey at the price of nine hundred dollars, and that Bishop had purchased the other house and lot for seven hundred and eighty-five dollars. This report was confirmed, and afterwards in October 1835, the purchasers having paid the purchase money, the commissioner was directed to malee to them conveyances; which was accordingly done; and a day was given to the defendants to show cause against the decree.</p> <p>William Burton having come of age in 1844, Mrs. McCoy having died without children surviving her, Susan having attained age and married Isaac Ong, and Elizabeth being still a minor but married to John W. Parker, the children then living applied for leave to file answers in the cause and impeach the proceedings. The County court overruled the motion; and they obtained an appeal to the Circuit court, where their motion was sustained ,• and the cause was retained in that court to be proceeded in there. They then filed a cross bill in the cause. Both in their answer and in the cross bill they object to the proceedings on various grounds : First. That the sale showed that the share of each infant was worth more than three hundred dollars. Second. The property allotted to the widow was not taken into the estimate, and that William C. Burton held another lot at his death, for which he had paid, but had not received a conveyance; and Bishop had sold it to Hawkins, and had directed the conveyance to be made to him. Third. That the heirs had not been summoned to show cause against the sale as is required by the statute.</p> <p>There were other matters alleged in relation to certain deeds executed by McCoy and wife to Bishop and Bailey, but they are of no importance as to the questions considered by the court. The purchasers and Bishop were made defendants, and the purchasers answered ; and a good deal of testimony was introduced into the cause, which however it is unnecessary to state. The cause came on to be heard in December 1846, when the court affirmed the proceedings and decrees' in the cause in the County court, and dismissed the cross bill, with costs in both cases. From this decree the heirs applied to this court for an appeal, which was allowed.</p>

Assumpsit, in the circuit superior court of Orange, by Stephens executor of James Burton, against Watts administrator of Elizaheth Burton, for money had and received by the defendant’s intestate in… Held: that the plaintiff was not entitled to recover, and gave judgment upon the special verdict for the defendant : to which this court, upon the petition of the plaintiff, allowed a supersedeas.

(Absent Parker and Stanard, J.) This was an appeal taken by Benjamin Dawson from a part of the same decree from which the appeal uTas taken by the president and directors of the literary fund, in the case of The Literary Fund v. Dawsons, reported ante, p. 147.

<p>Testator, having provided that Ms debts should be paid out of the first moneys collected from Ms outstanding debts, and then that his real estate, his slaves and his furniture, should be sold, and the proceeds applied, along with the first collections from his outstanding debts, to the discharge of Ms debts, bequeaths to Ms wife a specific legacy, “in addition to what the law allows herHeld, the widow is entitled to the portion which the law allowed her, of the testator’s estate, real and personal, as it stood at the testator’s death, not to such portion as the law would have allowed her if the whole estate had been money.</p>

On the 18th of June 1819, Benjamin Mosby, surviving executor of L. H. Mosby deceased, who sued for the use of Joseph Michaux, the intestate of the appellant, recovered a judgment in the County court… Held: if the judgment was under the circumstances, a lien on said lands.

The cause was argued here by Harrison for the appellant, and R. T. Daniel for the appellees. I. The question on the merits, whether Tabb had any beneficial interest in the execution against Botts, which was assigned by Scott to him as agent, was a mere question of fact upon the evidence. II. Harrison contended, that the privilege of Botts as a member of the general assem • bly, should have prevented the court from acting on the case at all, during the session.

<p>Benjamin O'Bear, a justice of the peace of Frederick, expecting to be appointed in his turn to the shrievalty of that county, entered into a covenant with George Kiger to sell the deputation of that office to him, when and in case he himself should be appointed to it. The covenant was in the following words:</p> <p>“Articles of agreement made and entered into this 2d day of November 1818, between Benjamin O'Rear of the one part and George Kiger of the other part, witnesseth: That the said O'Rear, for and in consideration of 1333 dollars 33 cents to be paid as hereinafter mentioned by the said Kiger, hereby covenants for himself and his heirs, that he will appoint the said Kiger lo the office of his deputy, as soon as the said O'Rear shall obtain the high sheriffalty for the county of Frederick, and that the said Kiger shall have the privilege of appointing such associates in the office as deputy sheriff as the said Kiger shall think proper; and the said O'Rear further covenants, that the said Kiger shall continue his deputy during the whole of the said O’Rear’s term; on the following conditions: the said Kiger is to pay the said O’Rear the sum of £ 100. on the 15th day of the present month, the further sum of 500 dollars on the day on which the said Kiger shall be sworn in as deputy, and the remaining sum of 500 dollars in one year after the said Kiger shall be sworn in. The said O’Rear further covenants for himself and his heirs, that in case he shall not be appointed high sheriff, he will return to the said Kiger or his heirs, the aforesaid sum of ¿£100. on the day on which the said O’Rear would be appointed high sheriff in the order in which he now stands on the list of magistrates for this county; the said money to be returned on the day aforesaid without interest. The said Kiger further agrees, that he will procure ample security, both for the said O’Rear and himself, for executing the duties of the said office. For the true performance of the above contract, we bind ourselves, each to the other, in the penal sum of 1000 dollars. Witness our hands and seals &c.”</p> <p>Kiger brought an action against O’Rear for a breach of this covenant, in the circuit court of Frederick; pending which action O’Rear died, and it was revived against his administrators. The declaration, after setting out the covenant, alleged, in substance, that Kiger wras prevented by the act and contrivance of O’Rear, from paying him, on the 15th November 1818, the ¿£100. which he covenanted to pay him on that day, and that he tendered him that sum on the 16th November, but O’Rear refused to receive it; and then alleged, that O’Rear was afterwards, to wit, on the —— day of-1819, appointed to the office of high sheriff of the county of Frederick, and obtained the said office in the order in wffiicb he stood on the list of magistrates for the county; and that on the day on which O’Rear and his deputies were qualified to the-office, to wit, on the - day of »— ■ 1819, and when Kiger should have been sworn in, if he had been " appointed deputy according to the terms of the covenant, Kiger was ready and offered to pay to O'Rear the sum of 500 dollars appointed by the covenant to be paid by Kiger on the day on which he should be sworn in as deputy, and was ready and offered to procure and give ample security, both for O'Rear and himself, for executing the duties of the office, but O'Rear refused to receive the said 500 dollars or to avail himself of the said security : and averring, that Kiger was ready and willing, and offered to O'Rear, to do and perform all things which by the covenant he was to do and perform on his part, and that O'Rear on his part refused to accept the proffered performance, the declaration assigned the breach of the covenant, that O'Rear did not and would not appoint Kiger his deputy in the office of sheriff. The administrators of O’Rear (against whom the action had been revived) put in a general demurrer to the declaration, and pleaded covenants performed, on which an issue was made up. The court overruled the demurrer. And upon the trial of the issue, the defendants demurred to the evidence. The jury found a verdict for the plaintiff for 5000 dollars damages, subject to the opinion of the court on the demurrer to evidence; upon which the court held, that the law was for the plaintiff, and gave him judgment for the damages assessed by the verdict. O'Rear's administrators applied to this court for a supersedeas to the judgment; which was allowed.</p>

In August 1850 a scire facias was issued from the clerk’s office of the Circuit court of law for the county Henrico, against Junius L. Archer as the bail of William B. Archer.

Robert Woodcock, late of the county of Frederick, died in the year 1808, without children or other descendants; and, by his last will and testament, bequeathed a legacy of £ 50. to Thomas Shearman; emancipated four slaves by name; and devised one parcel of land to his sister in law mrs. Rust for life, and after her death to Robert Dunbar and Hannah his wife and their joint heirs; the remainder after his wife’s death of another parcel of lan(J to George Murray in fee ; and…

<p>On the 22d of December 1853 O. D. Arnsthall presented his petition to the judge of the Circuit court of the city of Richmond, stating that he had been sued in said court by Miguel Angulo, and compelled to give bail; that a judgment had been rendered against him in the suit, and that he had been taken into custody and was then detained by Jacob A. Levy, his bail; and praying that a writ of habeas corpus might be awarded to bring him before the said judge, in order that the said Angulo might be compelled to file his interrogatories, and the petitioner discharged from custody. The writ was accordingly awarded and issued, and was executed on Levy, who returned that being the bail of said Arnsthall at the suit of Angulo for Hernandes in the said court, as would be seen by a copy of the bail bond annexed to the return, he had taken him, as he had a right to do, into custody, and then had his body before the court in obedience to the writ.</p> <p>It appeared from evidence before the judge, and made a part of the proceedings, that the petitioner had entered into a bail bond as required by the statute, with the said Jacob A. Levy as surety; that there was then pending upon the common law docket of the caUrt a motion by the petitioner to be discharged from the custody of the said bail, unless the plaintiff in the action at law should in a reasonable time file his interrogatories in pursuance of the statute; and also that the counsel for the plaintiff in the said action had had notice of the application set out in the petition. On consideration whereof, the judge, being of opinion that the surety in the bond aforesaid had no right to arrest and detain the petitioner, ordered that he should be released and discharged from the said arrest and detention by the said Levy. And the judge, being further of opinion that the motion of the petitioner to be discharged from custody unless the plaintiff in the action at law should file his interrogatories, was not proper unless the petitioner was in the actual custody of the officer making the arrest, or committed by virtue of such arrest, overruled the said motion. The proceedings were signed by the judge, and certified to the clerk of the said court, and entered among the records thereof. From the judgment so entered of record, an appeal was taken to this court by the said Levy.</p>

This was an application to the Supreme court of appeals by Joseph Barnett for a mandamus to the judge of the Circuit court of the city of Richmond to compel him to try a cause.

The general court, in July 1836, admitted to probat and record, as the last will and testament of the late John Randolph of Roanoke, several testamentary papers, namely, a paper purporting to be his will, without date, but supposed to have been written in 1821; a codicil thereto dated the 5th December 1821; another codicil dated the 31st January 1826; four other codicils dated the 6th May 1828; and lastly, another codicil dated the 26th August 1831.

This is the sequel of the ease of the Commonwealth v. Wormeley, reported in 8 Grattan 712. The prisoner was again tried at a special term of the Cireuit court of Chesterfield, held in January 1853, was found guilty of murder in the first degree, and was sentenced by the eourt to be hung on the 15th day of April following. The prisoner thereupon applied to this court for a writ of error to the judgment; and in his petition set out twelve grounds of error.

James B. Burwell, late of Richmond county, by bis will dated in September 1811, after devising to his uncle Bacon Burwell part of his land and farm lying in the counties of Frederick and Berkeley,… Held: that it was not well proved as a will of real estate, leaving it as to the personal in full force.

In the circuit superior court of Mason, at April term 1838, the grand jury found an indictment against Henry J. Fisher for a misdemeanour. The indictment contained two counts.

<p>A circuit court has the right and power, on the trial of an indictment for felony, to compel a venireman or bystander called to serve as a juror on the trial, to he sworn on his voir dire, and to answer proper questions touching his fitness as a juror in the particular case.</p> <p>What is a sufficient information for perjury committed by a juror on his voir dire.</p>

<p>The grand jury impanneled in the circuit superior court of Harrison county, at October term 1839, found an indictment against James JDever, for an assault and battery upon Rachel Wilkinson, wife of Joseph Wilkinson. At the bottom of the indictment were written the following words : “ Upon the information of Rachel Wilkinson wife of Joseph Wilkinson of Harrison county, sworn in court at the instance of the said Joseph Wilkinson, prosecutor, and sent to the grand jury to give evidence.” At October term 1840, the defendant moved the court to quash the indictment, “ because the title or profession of the prosecutor is not written at the foot of the said indictment, or elsewhere :” and thereupon the court, with the consent of the defendant, adjourned to this court the questions, 1. Whether the indictment ought for that reason to be quashed? 2. What judgment ought the court to render upon said motion ?</p>

In the county court of Amelia, at August term 1837, the grand jury made a presentment in the following terms : “ We present Jacob Roberts and William Ligón for unlawfully playing cards at the grocery of Alfred R. Deaton and William B. Chapman, in the county of Amelia and within the jurisdiction of this court, within three months last past.

Indictment against Richard C. Gwa.tldn for the murder of Frederick M. Pitman. This case is the same in which the general court, at December term 1839, reversed the judgment of the circuit court of Rockbridge, and awarded a new trial: see the report, 9 Leigh 678. After the case got back, the circuit court of Rock-bridge, at April term 1840, on the motion of the prisoner, ordered that the trial be postponed until the succeeding term.

<p>There were several questions raised in this case, but there was but one point decided. The facts in relation to it are stated in the opinion of Judge Allen. The jury found the prisoner guilty, and fixed the term of his imprisonment in the penitentiary at three years; and the court sentenced him accordingly. Whereupon he applied to this court for a writ of error, which was awarded.</p>

<p>An indictment for larceny was found against James Smith in the circuit court of Rockbridge at April term 1840, charging that the said James Smith, on See. at &c. one gold coin of the value of five dollars, commonly called a half eagle, and one promissory note of the value of fifteen dollars, made by the James river and Kanawha company, (the note was particularly described) of the property of one John Buchanan, by a certain ill-disposed negro slave, the property of and belonging to a certain Jacob Judy, and named Nelson, then lately before that time feloniously stolen, taken and carried away, of the said illdisposed negro slave Nelson feloniously did receive and have, he the said James Smith ^ then and there well knowing the said goods and chat-tels and property, viz. the said coin and promissory note, to have been feloniously stolen, taken and carried away by the said negro slave Nelson, against the form of the statute &c.</p> <p>At the trial upon the plea of not guilty, the attorney for the commonwealth offered in evidence the record of the conviction of the negro slave Nelson, before justices of oyer and terminer of Rockbridge county, for the of-fence of burglariously breaking and entering the dwellinghouse of John Buchanan, and stealing therefrom (inter alia) the coin and note in the indictment mentioned. To the introduction of this evidence the prisoner by his counsel objected; but the court overruled the objection and admitted the evidence: to which opinion the prisoner excepted.</p> <p>The jury found the prisoner guilty, and ascertained his term of imprisonment in the penitentiary to be two years; and the court rendered judgment accordingly. At the last term of the general court, the prisoner applied for a writ of error to the judgment; which was awarded.</p>

<p>1. A person convicted and sentenced for a felony, is afterwards pardoned by the executive, releasing him from all pains, penalties and forfeitures incurred by the conviction and sentence. Previous to the pardon an execution had been issued for the costs incurred in his prosecution by the commonwealth. Held: That the pardon did not release him from these costs.</p> <p>2. The statute only subjects the prisoner for such costs as the commonwealth is bound to pay; and therefore does not embrace the fees of the clerks, sheriffs or attorneys for the commonwealth.</p>

Case adjourned from the circuit superior court of Kanawha county.

Case adjourned from the circuit superior court of Harrison county.

<p>Case adjourned from the circuit superior court óf Harrison county.</p> <p>On the 13th of May 1840, the grand jury impanneled in the said court presented, that certain individuals, citizens of Harrison and Monongalia counties, among whom were James Y. Horner and thirteen others (naming them) of Harrison county, on the 11th of April 1840, at the county of Harrison aforesaid, associated themselves together under the name and style of the Middletown savings hank in the county of Monongalia,■ and that the said James Y. Horner arid the other persons named, with their associates (whose names were not all known to the jury), not having á charter incorporating them with authority to deal or trade as a bank, and to discount notes, bills or other securities for the payment of money, in the name, on account or for the benefit of said association, did nevertheless, on the day aforesaid and on divers other days since, at the county of Harrison, unlawfully issue and put into circulation in the said county of Harrison many thousand papers of the tenor following—</p> <p>“ 5. Middletown, Va. April 10. 1840. 5 Chartered by the legislature of Virginia. 5. Five A. No. 183. Five 5</p> <p>“ D. D. Wilson hath deposited in the savings bank of Middletown five dollars, which will be paid on presentation of this certificate, in current notes, six months after date.</p> <p>“ Attest J. O. Watson, cash’r. C. C. Vanzandt, pres’t.” and that the said Horner and others as aforesaid, and their associates, under the name of the Middletown savings hanh in the county of Monongalia, as aforesaid, have from time to time, and on divers days and times since the said 11th of April 1840, at the county aforesaid, traded and carried on business as a bank, by discounting notes, bills and other securities for the payment of money, in the name, on account and for the benefit of the said association: “ that the said Horner and others, and their said associates, issue the said certificates and pay them to individuals who have their notes and bills discounted by the said association, and in this way such certificates are put into circulation, and the same are passed by delivery in the community as money, and are used in payment of debts as bank notes are used: that the said Horner and others as aforesaid, and their associates, claim the right to put into circulation the said certificates, under the provisions of two acts of assembly, one passed the 24th day of March 1838, and the other the 25th day of March 1839: that under the latter act the said Horner and others as aforesaid, and their associates, have associated themselves together under the name and style of the Middletown savings bank in the county of Monongalia, and under that style and name they transact and carry on the business of a bank, by discounting notes and bills, and putting into circulation the said certificates as aforesaid, contrary to the acts of assembly in such case made and provided.”</p> <p>The attorney for the commonwealth having moved the court for a rule upon the parties presented, to shew cause why an information should not be filed against them for the offence alleged in the presentment, the defendant James Y. Horner appeared by his counsel, to shew such cause : and at a subsequent day of the term, the following evidence was submitted to the court, by agreement of the said defendant and the attorney for the commonwealth.</p> <p>I. An act of the general assembly, passed the 25th of March 1839, incorporating certain individuals named, and such other persons as were then or might thereafter become associated with them, by the name and style of the Middletown savings bank in the county of Monongalia; investing them with all the rights, powers and privileges conferred, and subjecting them to all the rules, regulations and restrictions imposed, by the act prescribing general regulations for the incorporation of savings institutions, societies or banks, passed March 24.1838. See Acts of 1839, ch. 193. p. 140. and Acts of 1838, ch. 108. p. 83.</p> <p>II. The constitution and by-laws of the Middletown savings bank, purporting to be adopted in pursuance of the aforesaid act of incorporation; and the paper containing the subscriptions for stock of the bank. All the parties named in the presentment appear as subscribers for stock, and as signers of the constitution and bylaws, the first article of which requires that the stockholders “ shall subscribe to the constitution and bylaws in person, thereby testifying that they bind themselves, their heirs, administrators and assigns, to b.e governed and bound by the articles of association herein contained.” Both sets of signatures were proved to be genuine.</p> <p>By the constitution and by-laws it is provided {inter alia) that every stockholder shall pay five dollars for every hundred dollars he may subscribe, at the time of subscribing, or at such time as the board of directors may fix, and shall secure such part of the subscription as may not be paid in hand, by a lien on real estate : that depositors for ninety days shall be entitled to receive three per cent, after the first ten days, and for one hundred and eighty days, four per cent.: that the bank shall not be considered bound to pay any deposits, unless the certificates for such deposits are surrendered when payment is demanded : that the funds of the bank shall be applied to the discount of notes, drafts and other negotiable securities; but that no paper shall be discounted, having a longer time to run than four months : and that the board of directors shall have authority to prescribe the form of stock certificates, and the different kinds of certificates of deposit.</p> <p>III. Certain deeds, certified as duly recorded in the counties of Harrison and Monongalia, by which the defendant Horner and the other parties named in the presentment, reciting their subscriptions for stock of the Middletown savings bank, severally convey different parcels of land to a trustee, for the purpose of securing the payment of the instalments to become due on account of their said subscriptions.</p> <p>IV. Certain proceedings of the board of directors of the Middletown savings bank, commencing the 17th of February 1840 and terminating the 3d of April 1840, whereby it appeared that on the 21st of February, the six original directors (being the six persons named in the act of incorporation) elected the defendant Horner as the seventh director; and that on the same day, C. C. Vanzandt, one of the directors, was by the board elected president, and James O. Watson appointed cashier. The qualification of the six original directors and of the cashier was proved by the testimony of a justice of the peace of Monongalia county, who administered to them the oath of office ; and as to the defendant Horner, the minute shewing his election as a director, states that he appeared and was sworn according to the by-laws. His appointment and qualification as a director were also proved by other evidence. In the minutes of the 3d of April 1840, there appears the following entry: “ It is agreed by the board, that they-issue no certificates, only on the actual deposits of money.” All these proceedings of the board are signed, from day to day, with the name of C. C. Vanzandt.</p> <p>V. The testimony of James O. Watson, cashier of the savings bank. This witness proved, that he has been acting as the cashier, and C. C. Vanzandt as the president of the institution, ever since they were respectively appointed. That the bank commenced operations on the 26th of March 1840, by receiving deposits. That the said bank is located at Middletown in the county of Monongalia, where all the books and papers belonging to the institution have at all times been kept by the witness, and where all its business operations, of which he has any knowledge, have been transacted. That from the time the bank commenced operations, up to the 27th of May 1840, it has received on deposit, in specie and bank notes, 6580 dollars 87 cents, exclusive of sums loaned to and deposited by borrowers from the bank; and the total amount of certificates of deposit issued within that period is 17540 dollars; the difference between the amount of certificates issued and the amount deposited by others than borrowers, having been issued upon deposits made by borrowers from the institution, or by persons in whose favour the borrowers drew checks. That the total amount of loans made by the bank within the period aforesaid is 16719 dollars 81 cents. That the loans made by the bank are sometimes on notes under seal, payable to the bank, executed by not less than two obligors, and at other times on negotiable notes payable at other banks. That the loans are generally at sixty and ninety days. That it is not the practice of all the borrowers to deposit the amount loaned to them by the bank, and take certificates of deposit for the same; but a majority of them have done so; it is left to their discretion to do so or not. That it is the practice, when a loan is made, to retain the interest upon the sum loaned, for the time that the borrower’s note has to run, and to pay out to the borrower the amount of his note except the sum so retained for interest. That when a borrower deposits the money borrowed, it is the practice to give him certificates for only the exact amount so deposited, not including interest on the deposit for the time the certificate has to run before it is payable: though, by the by-laws, depositors are entitled to interest, the rate of which depends upon the time for which the deposit is made. That a note of the defendant Horner for 500 dollars was discounted by the directors on the 3d of April 1840, but the money was not paid over to him until the 10th, on which day he was paid the sum of 492 dollars 17 cents; and on the same day he deposited 495 dollars, and took certificates therefor; a portion of ■ which deposit, the witness presumes, was the same money that he had received upon the discount of his note. That the only deposits ever made by the said Horner, besides the one above stated, were 10 dollars deposited the 27th of March 1840, and 50 dollars paid on his subscription for stock. That since the bank commenced operations, J. S. Chisler has deposited 7552 dollars 37 cents, a portion of which was the proceeds of checks given to him by other persons for notes discounted. That these checks were paid to the said Chisler in bank notes and specie ; of which the witness presumes that a portion, but not the whole, was deposited by him. That certificates of deposit were issued in favour of the said Chisler to the amount of about 6965 dollars; for the residue of his deposits, no certificates were issued, but the same was placed to his credit on the books of the bank. That all the certificates of deposit issued by the bank have been for sums of five, ten, and twenty dollars, payable in current notes, and all of them at six months, except an amount of about 120 dollars, which were intended to be made payable at six months, but by mistake were not. That all the said certificates were with copperplate or other engravings, partly printed and partly written, each being filled up by the officers of the bank.* That the bank never paid out its certificates of deposit as money. That borrowers always receive in money, by themselves or their agents, the proceeds of their notes discounted, which they sometimes take away without making any deposit; at other times they deposit the whole or a portion of the money, or a sum greater than the whole proceeds of the discounted note; and at the time of making the deposit, or at some subsequent time, they receive certificates for such portion of the sum deposited as they require, which are made payable to the depositors, and delivered to them, their order, or their agents. That the sum of 1368 dollars 50 cents has been paid in by the stockholders on their subscriptions, which is included in the estimate of deposits made by others than borrowers; but upon sums so paid in by stockholders, no certificates of deposit were ever issued. That on the 10th of April, the bank discounted a note of 300 dollars for W. Everett, who had not previously deposited any money; the proceeds of which note were paid in bank notes and specie, to D. D. Wilson, to whom Everett had given a check for the same: and on the 11th of April, Wilson deposited 170 dollars in Everett’s name, and received certificates of deposit therefor, payable to Everett. That on the same 11th of April, Wilson deposited 600 dollars in the name of A. T. Smith, and 640 dollars in the'name of Elias Smith, and took certificates of deposit in their names respectively, for corresponding amounts; and the witness presumes that the balance of the proceeds of Everett’s note was a part of the money deposited in the name of said Smiths. That on the 10th of April, the bank discounted for the said A. T, Smith a note of 500 dollars, apd for the said Elias Smith a note of like amount; the proceeds of which notes were paid, on the 11th of April, to the said Wilson, upon the checks of the said Smiths. Witness believes that Wilson deposited in the bank, on the 11th of April, the same money he received from it on that day. Neither of the Smiths had, previous to the 11th of April, made any deposit in the bank, except of moneys paid on their subscriptions for stock, for which they received no certificates of deposit. That on the 10th of April, the bank discounted for J. P. Wilson a note of 1000 dollars: that Wilson had not previously made any deposit: but on that day he deposited 1500 dollars, and certificates of deposit were issued to him for that amount. Witness is satisfied in his own mind, that the said J. P. Wilson’s deposit of 1500 dollars on the 10th of April, consisted in part of the money which the bank paid to him on discounting his said note.—Being asked whether the depositors who were not borrowers received certificates of deposit for the precise amount of the sums deposited, or were in any way compensated by the bank for the interest upon the certificates of deposit for the time such certificates had to run? witness answered, that they only received certificates for the ** actual amount deposited; and that, for about 2092 dollars of such .deposits, no certificates at all had been issued.</p> <p>VI. The testimony of Jesse Flowers; who proved, that the defendant Horner, in a conversation with the witness, stated that he believed it to be common for the borrowers from the bank to deposit the money borrowed, and take certificates of deposit for the same; that the bank did not loan certificates of deposit; and that it was discretionary with the borrowers to deposit the money they received, or not. Witness thinks he has seen as much as 100 dollars of such certificates in circulation in Harrison oounty; and they circulate as currency. „</p> <p>VII. The testimony of Walter Fverett; who proved, ■that having enquired of the defendant Horner how loans were to be obtained from the Middletown bank, Horner informed him that the bank loaned nothing but real money, but if a borrower wished to be friendly to the institution, he could deposit the money so borrowed with the cashier, and take certificates of deposit for the same-; that it was optional with the borrower to take the money away or deposit it. Witness, having executed a note for 300 dollars, with W. Johnson his surety, payable to the savings bank at Middletown in 90 days after date, went with the note to Middletown from his residence in Harrison county, on the 10th of April 1840; and being informed by mr. Watson the cashier, that he could net be accommodated -that evening, as the bank had just -got its paper, and had not filled it up, and others were to be accommodated before him, he left his note in the bank, and gave to the cashier a check in -favour of D. D. Wilson for the proceeds of the note in case it should be discounted, requesting said Wilson to attend to his business for him. Witness left Middletown that day, and returned to his residence in Harrison county. Two or three days afterwards, he called upon Wilson (who also lives in Harrison), when Wilson paid him, in certificates of deposit issued by the said bank, 290 dollars; giving him, for the balance of the proceeds of his note, his (Wilson’s) own memorandum. The certificates of deposit which witness received, he paid away as money. Part of these certificates were issued in witness’s name, and part in the names of others.</p> <p>VIII. The defendant Horner admitted, that he passed and put in circulation in the county of Harrison, certificates of deposit issued by the said Middletown savings bank in his favour, amounting to about 60 dollars.</p> <p>And the foregoing was all the evidence in the cause.</p> <p>Whereupon the circuit court, with the consent of the defendant Horner, adjourned to the general court the following questions : 1. Will the evidence taken in this cause in support of the presentment of the grand jury, authorize the filing an information under the provisions of the first section of the act of the assembly, entitled “ an act more effectually to prevent the circulation of notes emitted by unchartered banks,” passed February 24. 1816 ? 2. What order ought the court to make in the premises ?</p>

At the May term 1853 of the Circuit court for the county of Wood, Benoni Lazier and Hyatt Lazier were jointly indicted for the murder of Clemansa Devon. The indictment contained two counts, in both of which the offence was described in nearly the same terms; and the second count did not set it out as another offenee. In both counts, too, the dates were set out in figures ; and in neither was the depth or length or width of the wound described.

<p>1. On a trial for rape the main question is as to the identity of the prisoner. The female is examined, and although she swears positively that the prisoner is the person who committed the outrage upon her, she declines to give a description of him as at the time of the outrage. The commonwealth then introduces a witness to prove the particulars of the description of the person who committed the outrage, given by the female to the witness on the morning after the rape was committed, and before she had seen the prisoner, in corroboration or proof of the causa stientüe of the female witness. Held :</p> <p>1. Though it is competent to prove the fact of a recent complaint by the female for the purpose of sustaining her credit, it is not competent to prove the particulars of her complaint: And so it is not competent to prove the particulars of the description given by her.</p> <p>2. The female having declined to give a description of the person who committed the outrage when upon oath, it is not competent to prove the description given by her when not uponoath.</p> <p>2. A witness for the prisoner who had given evidence at a former trial, is absent from the commonwealth at the second trial. It is not competent for the prisoner to prove what the witness swore to on the former trial.</p>

This was an indictment in the Circuit court of Washington county against Benjamin Smith, a free negro, for a rape upon Margaret Trent, a white girl. Upon the first trial the; jury was hung. On the second trial the prisoner was convicted and sentenced to be hung. On both trials the prisoner excepted to an opinion of the court admitting evidence of his confessions.

<p>1. The act Sess. Acts of 1853, ch. 66, § 33, p. 58, which directs that the Circuit court of Henrico shall he held at the state court-house in the city of Richmond, is not in violation of the 7th section of the 6th article of the constitution of Virginia.*</p> <p>2. In a prosecution for selling ardent spirits by retail to be drunk at the place where sold, without having first obtained a license to keep an ordinary, a writ of error lies for the commonwealth from the judgment of an inferior court.*</p> <p>3. The presentment in such a case describes the defendant as a free negro ¡ as for this offence, white persons, Indians and free negroes are to be prosecuted and punished in the same manner, a plea that the defendant is an Indian and not a free negro, is an immaterial plea, and was properly excluded.</p> <p>4. The presentment was made at the March term 1851 of the County court, and at the May term the defendant appeared and demurred to the presentment, and the demurrer was overruled; and he then pleaded not guilty. At the August term 1852 when the cause was called for trial, he moved for leave to withdraw his plea of not guilty, and plead that he was not a free negro, but an Indian. Held: The plea was tendered too late even if it was a good plea.</p> <p>5. It was not necessary for the commonwealth to prove that the defendant was a free negro.</p>

This was an indictment for the larceny of a bond in the Circuit court of Page county against Thompson Vaughn. The jury found the prisoner guilty, and ascertained the term of his imprisonment in the penitentiary at one year; and the judgment was according to the verdict.

At the November term 1852 of the Circuit court of Petersburg, Lewis Montague was indicted for the murder of Gardener G. Thompson. His trial came on in June 1858, when he was convicted of murder in the first degree, and sentenced to be hung. Upon the trial several questions were made by the prisoner, but only one of them was considered by this court: That relates to the exclusion of a juror.

Daniel Cady was indicted in the Circuit court of Ohio county, for that he on the 16th day of September 1853, at the county aforesaid, feloniously did utter and attempt to employ as true, to Caroline Seabright, a certain false and forged bank note, purporting to be a true and genuine bank note, for the payment of ten dollars, of the Bank of Delaware county, Chester, Pennsylvania, the same being a banking company authorized by the laws of Pennsylvania, with intent to defraud…

Debt, in the circuit superior court of Janies City and Williamsburg, in the name of Eit-tleton W. Tazewell governor of the commonwealth, suing at the relation of Elizabeth Eawrence executrix of Eleanor Maynard deceased, against William M’Candlish and five others, obligors in the official bond given by M’Candlish as marshal of the late superior court of chancery for the district of Wil-liamsburg.