Volume 11 — Grattan's Virginia Reports

This was an action of ejectment in the Circuit court of Elizabeth City county, brought by James S. Erench against General James Bankhead, the officer of the United States in common at Fortress Monroe. The *facts are stated in the opinion of the court delivered by-Judge Allen.

This was an action of ejectment in the Circuit court of Buckingham county, brought in February 1846, by the lessee of Elizabeth A. Cobbs and others against William H. Tapscott. Upon the trial the defendant demurred to the evidence. It appears that Thomas Anderson died in 1800, having made a will, by which he appointed several persons his executor, of whom John Harris, Robert Rives and Nathaniel Anderson qualified as such.

Samuel Lee, by his will, recorded in 1842, directed his estate to be sold by his executors, and the fund arising' therefrom, after the payment of his debts, to be distributed among a large number of nephews and nieces; giving to four of them, of whom the appellee William L. Boak was one, each two shares thereof, subject, however, as to the share of the said Boak, to a deduction therefrom of all moneys theretofore paid by the testator for him as his security.

These two cases are precisely the same except in the names of the defendants below, who are the appellants. The statement of one is therefore the statement of the other.

This was an action on the case in the Circuit court of Patrick county, brought by Allen S. Overby against the administrator of William Boyle deceased. The declaration contained two counts.

This was a suit in the Circuit court of Fauquier county, instituted in 1844 by the executors of Thomas Fitzhugh against Dudley Fitzhugh, to enforce a deed of trust executed by the latter in September 1823, to secure two debts amounting to eleven hundred and fifty dollars due to Thomas Fitzhugh. The bill sets out the deed and alleges that no part of the debt had been paid.

At the October term 1851 of the Circuit court of Accomack county, a paper purporting to be the will and codicil thereto of Thomas T. Taylor deceased, was propounded for probat by Edward W. Taylor, one of the nominated executors therein ; and its admission to probat was opposed by Thomas H. Parramore and Sarah A. his wife; and Thomas H. Parramore dj'ing during the controversy in the Circuit court, the opposition to the probat was continued by Sarah A. Parramore, who and the…

This was an action of assumpsit in the Circuit court of Petersburg, brought by the Bank of Virginia against Fittleberry E. Stainback, upon a bill of exchange for one thousand pounds sterling, drawn by F. C. Stainback of Petersburg upon T. W. Clagett of the city of London, endorsed by the defendant, and protested for nonacceptance.

This was an action of assumpsit in the Circuit court of Petersburg, brought by the Bank of Virginia against Littleberry F. Stainback, as endorser of three bills of exchange, each for five hundred pounds sterling, drawn by F. C. Stainback upon T. W. Clagett of London, and protested for nonacceptance. The bills purport io be endorsed by Littleberry p. Stainback, by F. C. Stainback his attorney. Two of them bear date the 6th, and the third the 7th of February 1843.

This was an action of assumpsit in the Circuit court of Petersburg, brought by C. C. Read & Co. against Eittleberry R. Stainback. Upon the trial the plaintiffs introduced in evidence a bill of exchange, which bore date the 14th of December 1842, and was directed to them, whereby they were requested to pay to P. C. & J. 1). Osborne & Co. one thousand nine hundred and sixty-nine dollars and foriy-two cents.

William W. Morris a free negro, applied by petition verified by his affidavit, to the Circuit court of the city of Richmond for a mandamus to the mayor of Richmond, to compel that officer to allow to the petitioner an apipeal from a judgment pronounced against him.

This was an action of assumpsit in the Circuit court of Rauquier county, brought by George R. Ritzhugh against Henry Ritzhugh and Berkeley Ward, executors of Thomas Ritzhugh deceased. The writ abated as to Henry Ritzhugh by the return of “no inhabitant.” . *The . declaration contained three counts.

John Paris, late of the county of Augusta, died in 1839, having first made his will, which was duly admitted to probat.

This was an action of debt in the Circuit court of Augusta county, brought by Hugh John Crawford against the executor of John McDowell deceased. The action was founded upon a bond ; and the plea was non est factum, upon which the issue was made up. Upon the trial the plaintiff introduced m evidence a bond in the following terms: $2000.

This was an appeal from a decree of the Circuit court of Wood county, rendered in September 1851 in a cause in which John James was plaintiff and Charles P. Rathey was defendant. In the year 1797 or 1798 John James the elder purchased from Joseph Spencer a tract of between seven hundred and eight hundred acres of land in Wood county, and received a title bond for the title.

In June 1848 Noah L. Wilson filed his bill in the Circuit court of Wood county, in which he alleged that on the 26th of September 1837 Enoch Rector of that county sold and conveyed, with general warranty, to the plaintiff and John Mills one undivided fourth of certain lands and lots in the county of Washington in the state of Ohio; and that for one moiety of the purchase *money, amounting to two thousand one hundred and eighty-seven dollars and fifty cents, the plaintiff…

Rossett, by deed of trust dated the 12th of April 1844, conveyed certain real estate, consisting of a lot of ground with a brick house thereon, in the town of Ripley, in the county of Jackson, to Joseph Smith, in trust to secure the payment of two single bills, one to Andrew Wilson & Co. for forty-three dollars and seventy cents, dated the same day with the deed, and payable one year thereafter, with interest from the date, and the other to Henry J. Fisher, for one hundred…

<p>This action was instituted in 1848. The case is stated in the opinion of Judge Samuels.</p>

This was a writ of right brought in the Circuit court of Gthes county by Thomas J. Hobbs against Thompson and Wilson Shumate, for the recovery of a tract of land containing fifty acres.

In October 1840- Samuel McD. Moore recovered a judgment in the Circuit court of Fayette county against John Hill, for one thousand six hundred dollars, with interest. On this judgment an execution was issued, on which Hill executed a forthcoming bond with Hiram Hill and Pleasant Hawkins 'as his sureties.

This was a writ of unlawful detainer brought in the county of Jackson, by Henry O. Middleton against Josiah Harrison, to recover possession of a tract of seven thousand nine hundred and twenty-three acres of land.

In March 1848 James C. Johnston filed his bill in the Circuit court of Ohio county against Jacob S. and William W. Shriver, trustees of Platoff Zane and Blisa Jane huswife and their children, and others, in which he alleged that Platoff Zane of Wheeling in his life time being indebted to A. J. Prentiss in the sum of one thousand two hundred and seventy-five dollars, on the 9th of March 1837 at Wheeling, executed to him his note payable on demand for that sum.

This .was an ejectment in the Circuit court of Jackson county. The declaration contained one count on the demise of Honoré Girond, another of the president and directors of the literary fund, a third of J. E. Norvell and John De Homerg-ue, a fourth of said Horvell and Eugene Levasser, and a fifil in the name of Eugene Eevasser alone.

On the 26th of May 1849 Nestor Kincheloe made complaint, that Mary, Moses, Aaron and Wesley Tracewell had unlawfully turned him out of, and against his consent withheld from him, the possession of a certain tenement containing by estimation twenty-five acres of land lying in the county of Wood, whereof he prayed restitution. This complaint was accompanied by his affidavit to the truth of the facts stated in his complaint.

<p>1. Foreign Attachments in Equity.—The act of April 3rd. 1853, Sess. Acts, ch. 95, § 1, p. 78, gives a remedy in a court of equity to a creditor against his absent debtor, where the debtor has estate or debts due to him in the county or corporation where the suit is brought,</p> <p>a, Same—Affidavit—When Made.*—The affidavit required by the statutes to authorize a creditor to sue out an attachment against the effects of an absent debtor, may be made either before or after the bill is filed. ,</p> <p>3. Same—Relief Given According to Equitable Principies.†—When the court has properly taken jurisdiction of a cause against an absent defendant, it must proceed to give relief according to the principles of equity.</p> <p>4. Same - When Personal Decree May Be Rendered.‡—If an absent defendant does not appear in the canse, there cannot be a personal decree against him; but the attached effects can alone be subjected. But if he does appear, there may be a personal decree only against him, or there may be both a personal decree anda decree subjecting the attached effects.</p> <p>5. Same—Same.—If the absent debtor appears, and the attachment has not been sued out or levied, there may still be a personal decree against him. Or the plaintiff may, after the debtor’s appearance, make the affidavit, sue out an attachment, and have it levied on the effects of the debtor, and have them subjected.</p> <p>6. Same Failure of Bill to Aver Attachment Issued—Effect.§—A demurrer to a bill against an absent defendant will not lie for the failure to aver that an attachment had issued; because the statute in terms provides that this process may issue after the institution of the suit.</p>

These cases arose out of the case of Evans & wife v. Spurgin, reported 6 Gratt. 107.

This was a suit in equity by Alfred Beckley against W. Palmer, William Tyree and another. The bill was addressed to the judge of the Circuit court of Raleigh county. It alleged that the appellee Palmer had recovered a judgment for a large amount in the Circuit court of Payette county, against the appellant and one Waite.

This was an action of assumpsit in the Circuit court of Kanawha county, brought by John R. Humphreys against Bradford. Noyes, and upon his death revived against his executrix.

At the May term 1854 of the County court of Mason, Samuel Yeager applied to the court for a license to keep an ordinary at his house in the town of West Columbia, in the county of Mason.

The following statement of the case has been prepared by Judge Moncure; On the 5th of August 1839 the appellant Zedekiah Kidwell contracted with the appellees, the Baltimore and Ohio railroad company, to build and complete, in a workmanlike manner, on or before the first day of September 1840, a bridge, with stone abutments and wooden superstructure, across Iyittle Cacapon creek; all the work and materials of which were to be approved by the engineer or agent of the said…

*This was an action on the case in the Circuit court of Shenandoah county by John Reigle against William Parish & Co. stage owners, to recover damages for an injury sustained by the plaintiff by the upsetting of the defendants’ stage.

This was a writ of forcible entry and detainer, brought in the County court of Prince William, and removed to the Circuit court of the same county, by James Purcell against George W. Cheshire. Both parties derived their title from the will of Prancis Cannon.

This was a bill by Seaman and others, creditors of Benjamin B. Belt and Humphrey S. Belt, to set aside two deeds executed by these parties, on the ground that they were fraudulent, and intended to hinder and delay their creditors. The trustee a'nswered, denying any knowledge of a fraudulent intent, and the Belts denied all fraud: And the only question in the cause was, whether the deeds were fraudulent on their face.

This was a suit in the Circuit court of Fauquier county by Susg.n Allen and others, the heirs at law and next of kin of Catharine Bradford deceased, against William H. Gaines, administrator with the will annexed of Catharine Bradford and Samuel Robinson and others, claiming to be legatees under Mrs. Bradford’s will. Mrs. Bradford died in 1851; and her will was duly admitted to record in the County court of Fauquier.

This was a suit in equity in the Circuit court of Powhatan county, and afterwards removed to the Circuit court of Goochland, instituted by Elizabeth Stratton the widow, and three others, the infant children of Milner S. Stratton, against Benjamin H. Powell and Henry Gordon, to recover moneys of the estate of Milner S. Stratton, which the plaintiffs alleged Powell had collected in the state of Mississippi.

This was a suit in equity in the Circuit court of Hanover county, by Wilson Maddox and Martha Jane Maddox against William G. Maddox, as administrator de bonis non with the will annexed of John Maddox, and others, claiming as residuary legatees of John Maddox deceased. The plaintiffs claimed that the defendants, who were also legatees of John Maddox, had forfeited their interest in his estate by violating the condition upon which the legacies were given.

The grand jury for the county of Scott, at the April term 18S1 of the Circuit court for that county, indicted Anthony Head of said county, for that he did on the 26th of April of that year, at the county aforesaid, sell by retail rum, brandy, &c., without having a license to authorize him to do so, to be then drunk where sold, contrary to the act of assembly, &c. Head appeared and demurred to the indictment; and the Circuit court sustained the demurrer, and gave a judgment…