Volume 11 — Virginia Reports

<p>The case is fully stated in the opinion of Judge Allen.</p>

<p>In May, 1780, Camm Garlick, of King William county, made and published his will and testament, whereby he devised and bequeathed his real and personal estate in Virginia, to and among his wife Mary, and his three children, Samuel, Sarah and Mary Camm Garlick, and appointed his brothers, Samuel and John Garlick, his executors; and shortly after making this will, he went to England on a visit to his paternal Uncle, Edward Garlick, who resided near Bristol. His uncle died soon after his arrival in England, and by his last will and testament bequeathed to him a large legacy, consisting chiefly, it appeared, of moneys due to that testator. Whereupon, in December, 1781, Camm Garlick, then remaining in England, made an additional will and testament, for the purpose of disposing of the property which he had lately acquired under his uncle’s will; whereby he confirmed the will he had made in Virginia; and, out of the legacy bequeathed to him by his uncle, he bequeathed an annuity of £ 50 sterling to his wife for life, and £ 500 to Benjamin Pollard, £ 2,500 to Ms son Samuel, and £ 1,500 to each of Ms daughters Sarah and Mary Camm; and appointed Benjamin Pollard and Thomas Hall executors of this his will made in England, and guardians of his three children, till such time as the moneys he thereby bequeathed to them could be paid to the persons whom he had, by his will made in Virginia, appointed their guardians (meaning, no doubt, Samuel and John Garlick, whom he had appointed executors of his Virginia will, though not, as he supposed, guardians of his children). Immediately after making and publishing this will in England, the testator, Camm Garlick, went to Portugal, where he died in 1782. Pollard and Hall joined in proving the English will in the prerogative court of Canterbury, and procured joint letters testamentary; but Pollard alone collected the English assets of the testator’s estate, or at least far the greater part of them, and in 1783 came to Virginia, bringing with him the assets of the estate which he had collected in England. Samuel and John Garlick, the executors named in the Virginia will, proved that will together with an authenticated copy of the English will, in the County Court of King William, in March, 1784, and qualified as executors. Pollard Paid to John and Samuel Gar-lick, a large portion of the assets of their common testator, which he had collected in England and brought with him to Virginia, and they made some payments to the legatees on account of the legacies bequeathed to them; but it did not appear, either that Pollard paid over to the Virginia executors all the English assets which he had received, or that they paid over all the money they received from Pollard to the legatees.</p> <p>Leonard Tunstall and Mary Camm his wife who was one of the daughters and legatees of the testator Camm Garlick, in 1799, exhibited a bill in the High Court of Chancery of Virginia, against the Virginia executors Samuel and John Garliek, and the English executor Pollard, setting forth the two wills of the testator, and the qualification of Pollard as executor in England, and of Samuel and John Garliek as executors in Virginia; charging each and all of the executors with waste, and appropriation to their own use, of the assets of their testator’s estate, which they ought to have applied to the payment of the legacies, a large portion of which, they alleged, yet remained due; and praying accounts of the administration of the defendants respectively, and a decree for the balance of the legacies yet due. TJpon the division of the High Court of Chancery into District Courts, in January, 1802, this suit was transferred to the District Court of Chancery of Williamsburg. And there Benjamin Gaines and Sarah his wife, who was the other daughter of the testator Camm Garliek, Samuel, his son, and Mary, his widow, exhibited a like bill against the same parties, praying, the like relief. The Virginia executors, Samuel and John Garliek, in their answers to these bills, said, that no settlement had ever been made, between them and the defendant Pollard, who had had the management of that part of the estate which was in England, or, between them and the legatees, of their own accounts of administration. And the English executor, Pollard, said, that he had, out of the assets received by him in England, discharged a large amount of debt due from the testator’s estate to creditors in that country, made several payments to the legatees, and paid over large sums of money to the Virginia executors, and they had paid large-sums to the plaintiffs on account of their legacies, so-that the balance due from him, if any, was trivial; but he admitted, that the accounts remained to be settled; and he made no objection to his liability to render an account of his administration before this-■court. Some of the plaintiffs and all of the defendants died pending the suits, and the proceedings were revived for and against their representatives, so that the causes stood in the names of Mary Oamm Tun-stall, plaintiff in the first suit, and Sarah Gaines, the administratrix of Samuel, the son of the testator, and the administrator of Mary, the widow, plaintiffs in the second suit, against Benjamin Pollard, administrator of the executor Pollard, the administrator of the executor John Garlick, the administrator de bonis non of the executor Samuel Garlick, and the administrator of his first administrator, defendants in both suits.</p> <p>Of the several accounts ordered and taken in these suits, it is only necessary to state here the result of the account of the English executor Pollard’s administration of his testator Oamm Garliek’s estate, taken in 1820, long after the executor’s death; by which it appeared that he was indebted to the estate for a balance of 8,984 dollars with interest from the 31st December, 1800. But there was some evidence in the cause to shew, that he had made large payments to the Virginia executors, which appeared not to have been credited to him in the account. No account was taken of Benjamin Pollard the younger’s administration of Pollard the executor’s estate, it being agreed that Pollard the executor died utterly insolvent.</p> <p>Upon the hearing in November, 1820, a decree was entered, by consent of the parties, that the administrator of the executor John Garlick should, out of the assets of that executor’s estate in his hands, pay to Mary Oamm Tunstall, the plaintiff in the first suit, the sum of 5,169 dollars, and to Sarah Gaines one of the plaintiffs in the second suit, 4,393 dollars, with interest on both sums from the 1st of January, 1801; and that the administrator of the first administrator of the executor Samuel Garlick, (it being admitted that he had assets in Ms hands) should pay to Mrs. Tunstall the of 1,696 dollars, and the same sum to Mrs. Gaines, with interest from the 1st January, 1801— gamuel the son, and Mary the widow of the testator Camm Garlick, appearing to have received all they were entitled to, the bill in the second suit, so far as it prayed relief for them, should be dismissed— And that both bills should be dismissed as to Pollard the younger, the administrator of Pollard the English executor of Camm Garlick.</p> <p>The foregoing history of the proceedings in the former suits is necessary to an accurate understanding of the controversy in this suit, which grew out of them.</p> <p>Mary Tunstall and Sarah Gaines, in September, 1822, exhibited a bill, in the Superior Court of Chancery of "Williamsburg, against Benjamin Pollard as the administrator and sole heir of the elder Pollard .executor of Camm Garlick, and the representatives of the executors John and Samuel Garlick, and other parties; wherein they represented, that the decree in the former suits against the representatives of John and Samuel Garlick, was rendered for moneys due from them respectively on account of their own ex-ecutorial transactions, and on account of the deficiency of Pollard the Mnglish executor of their testator; that having sued out executions on their decree against the representative of John Garlick, they had obtained satisfaction of only a small part of their claim on the decree against him, and encountered impediments to further proceedings, which it required the aid of the court to remove; but when these impediments should be removed, the estate of John Garlick would still be inadequate to satisfy the decree. And as to the defendant Pollard, the bill suggested, that he was in possession of real estate inherited from his father Pollard the executor of Camm Garliek, of which they prayed discovery and account, and that the should he subjected to the debt which his ancestor owed to the estate of Camm Garliek.</p> <p>This bill was, in the sequel, dismissed, on the motion of the plaintiffs, as to all the defendants except Pollard.</p> <p>Pollard filed his answer in January, 1885, in which he said, that he and his sister Margaret the wife of George Loyall were the heirs at law of his father, but that they held no real estate derived from him, by gift, devise or descent, he having, in fact, left no property whatever at his death, which then came to the hands of the defendant. But he said, that since the commencement of this suit, namely, in August, 1824, some assets had come to his hands as administrator of his father, on account of a claim, which he had presented, under the treaty of February, 1819, between the United States and Spain, for a loss sustained in 1796; which assets, however, he had fully administered, by applying the same in satisfaction of debts due upon judgments recovered against his intestate in his lifetime; debts, he insisted, of superior dignity to the debts claimed by the plaintiffs; for the debts they claimed were, in their nature, only simple contract debts of his intestate, since he had qualified as executor of Camm Garliek in England, and his executorial bond given there did not stand on the same footing as an executor’s bond given in Virginia, nor were the debts of the executor of the same dignity.</p> <p>In 1827, the plaintiffs filed a supplemental bill in which they made Loyall and wife parties defendants, and charged, that Benjamin Pollard the elder, in May, 1799, made a conveyance and settlement of real estate to the use of his wife, which upon her death had come to the hands of Benjamin Pollard the younger and Loyall and wife; that the conveyance and settlement were voluntary, fraudulent and void, as to creditors of Pollard the elder; and that these lands ought to be held subject to the plaintiffs’ claims. And they called upon the defendant Pollard to render an account 0f the assets of his intestate’s estate which he had received since the commencement of the suit (amounting, they alleged, to about 11,000 dollars) and to state the judgments against his intestate in payment of which he had disbursed those assets, and all the circumstances attending those payments made by him.. They insisted, that the debt due to them from the intestate, being a debt due from him as an executor, was of higher dignity than any debts due upon judgments against him: that those judgments having been rendered against the intestate in his lifetime, and he having died in 1807, and there having been no proceedings upon them for some eighteen years after the qualification of the administrator, there could not have existed any valid claim upon them, and if the administrator applied the assets to the satisfaction of them, such payments were merely voluntary on his part, and a waste of the assets: that the administrator had sought to effect a compromise of the judgments, and to get releases or transfers of them on payment of a small part of their nominal amount, and then to use them as a protection of the assets to the whole nominal amount of the judgments; thus making a trivial sacrifice to claims which could never have been enforced if he had resisted them, in order to protect the residue of the assets from the claims of the plaintiffs and other creditors of his intestate.</p> <p>As to the defendants Loyall and wife, the bill was taken pro eonfesso. The defendant .Pollard put in an answer, in which he referred to the decree in the former suits of November, 1820, entered by consent of the plaintiffs, whereby it was decreed, that the debt, due from his intestate as executor of Gamm G-arlick should he paid by the representatives of the other executors John and Samuel Garlick, and the bills as to him were finally dismissed. He said, that the conveyance of real property made by his father to his wife was founded on an antenuptial agreement, and so was a conveyance for valuable consideration, and this defendant and his sister Mrs. Loyall held the property under a devise from the wife who was the bona,fide owner of it; and that, moreover, his intestate being-in custody at the suit of one William Coker in 1804, took the benefit of the statute for the relief of insolvent debtors, and surrendered in his schedule all interest he had or might have in the very property which he had before conveyed to his wife. And as to the other allegations of the bill, he said, that the sum he had received as administrator of his father upon .his claim under the treaty with Spain, was 10,310 dollars. That one of the judgments which he had discharged out of those assets, was a judgment recovered by Margaret Kearnes against his father in his lifetime, upon which suit was brought against him as administrator, in September, 1824, immediately after his receipt of .the assets; knowing it to be a debt of the highest dignity, and presuming he should be obliged to pay it, he advised his brother in law George Loyall to purchase the claim; Loyall purchased it for 1,000 dollars; it was prosecuted to judgment, and execution sued out, upon which he paid Loyall the full amount, 2,552 dollars, in April, 1825. That the other judgment was the judgment of William Coker against his intestate, upon which a suit was brought by Mr. Wickham, in 1824, against this defendant, in the Circuit Court of the Hnited States held at Richmond; he advised another relation, William Loyall, to purchase this claim from Mr. Wick-ham; William Loyall purchased it accordingly, for 5,400 dollars, which he paid to Mr. Wickham; Coker’s suit was prosecuted to judgment; and the defendant paid the full amount, 6,894 dollars, to William Loyall, in June, 1825. He insisted, that the debt claimed by the plaintiffs was only a simple contract debt of his intestate; and then he stated, that he held two bonds executed by his intestate to James Catón, deceased, for £500 sterling each, the whole of which, with interest from December, 1796, was still due; and that the defendant was the executor of Catón, and had a right to retain the amount. of these debts out of the assets of his intestate, in preference to the debt claimed by the plaintiffs.</p> <p>The facts stated in the answer were put in issue by a general replication.</p> <p>It appeared, that Pollard the intestate of the defendant Pollard died in 1807. Administration of his estate, it seemed, was first committed to the sergeant of Horfolk borough; it did not appear when. The accounts of the defendant Pollard’s administration shewed, that the administration was granted to him in May, 1812. ■</p> <p>The judgment of Margaret Kearnes against Pollard the intestate was recovered in Hovember, 1802, and the suit upon it against Pollard, the administrator, was brought in September, 1824, and judgment recovered against him by default in April, 1825.</p> <p>Of the judgment stated in the answer to have been recovered by William Coker against Pollard, the intestate, of the proceedings by which he w.as discharged from custody at the suit of Coker in 1804 as an insolvent debtor, and of the judgment recovered by Coker against Pollard, the administrator, no evidence appeared by the record to have been exhibited.</p> <p>It appeared, that the full amounts due upon Kearnes’s and Coker’s judgments were paid by the defendant Pollard, as stated in his answer.</p> <p>The bonds of Pollard the defendant’s intestate to Catón, for £ 500 sterling each, which, the defendant said in his answer, he held as the executor of Catón, did not appear to have been exhibited.</p> <p>The accounts of the defendant Pollard’s administration of his intestate’s estate having been referred to a commissioner, it appeared by the report, that if the administrator was entitled to credit for the sums he had paid in satisfaction of Kearnes’s and Coker’s judgments, he had fully administered the assets he had received; if not, he was indebted to the estate in a balance of 7,768 dollars, with interest from the 18th June, 1825.</p> <p>The cause was transferred, first, to the Superior Court of Chancery of Richmond, and finally to the Circuit Superior Court for Henrico and Richmond; where, upon a hearing in 1837, the bill was dismissed. Hpon the petition of the plaintiffs, this court allowed them an appeal.</p>

Frederick Reese of the county of Dinwiddie, died in 1829. By his will which was duly admitted to prohat, after a legacy of two hundred and fifty dollars to Amy Featherston, he gave to his son Herbert Reese all his land, and one-half of the balance of his estate: But if he should die without heirs, then at his death the land, with all the other property, should go to his grand son Frederick A. Frazer and his heirs.

At the April term 1848 of the Circuit court of .Bed-ford county, in an action on the case then depending therein in the name of Demarcus Foutz, who sues for the benefit of John D. Pate plaintiff, against Wingfield J. St. Clair defendant, a judgment was rendered in the terms following, viz: This day came the parties, by their attorneys, and by their consent, it is considered by the court that this suit be dismissed; and that the defendant recover against the said John D.…

<p>A debt, if it had any existence, was contracted in 1819, when the debtor lived in Virginia, and was by parol. He shortly afterwards removed from the state, and remained out of it until his death in 1826. In 1840 a proceeding by foreign attachment was instituted to recover the debt. Held : The statute of limitations is a good defence to the proceeding.</p>

The following statement of the case is made by Judge Moncure : In 1S10, Benjamin Harrison being a creditor to a large amount of the estate of Philip L. Grymes, Robert West, the administrator of… Held: and gave a receipt in full for the debt, the estate of Grrymes became entirely exonerated.

Tuckahoe Creek is a samll tributary of James River, into which it falls about ten miles above the city of Richmond. Held: that the Canal Company had, under its elder charter, a prior right to select the route for its improvement; and that this right of selection (though it had not yet been exercised) was a vested franchise in the Canal Company, which no subsequent legislation could abridge or impair; and, therefore, reversed the decree, and perpetuated…

Tuckahoe Creek is a small tributary of James River, into which it falls about ten miles above the city of Richmond.

This was a bill filed by John T. Martin, administrator de bonis non with the will annexed of John Piggott deceased, to obtain a construction of the will of said Piggott, and directions in the distribution of the estate. John Piggott died in 1809.

This was an action of ejectment in the Circuit court of Gloucester county, by the lessee of Kemp and others against James Callis and others. The declaration claimed four several tracts of land, one of which is described as containing five hundred acres, more or less, known as Summers’ or Seymour’s, formerly Damold’s, and it also claimed a water grist mill known by the name of Burton’s mill, and land attached thereto, containing twenty-four acres.

Roderick Haffey, late of the town of Pe-tersburg, by deed dated the 7th of December 1822, conveyed to Thomas Lambert and Robert… Held: that the deed of trust under which the plaintiffs claimed, dated the 25th June 1823, only conveyed the tenement included in the prior deed of the 7th December 1822, and that the adjacent tenement was not conveyed by either of those deeds; but that the plaintiffs were entitled in equity to be substituted to the right of the president,…

Roderick Ilafley, late of the town of Petersburg, by deed dated the 7th of December, 1822, conveyed to Thomas Lambert and Robert Birchett a… Held: that the deed of trust under which the plaintiffs claimed, dated the 25th June, 1823, only conveyed the tenement included in the prior deed of the 7th December, 1822, and that the adjacent tenement was not conveyed by either’ of those deeds; but that the plaintiffs were entitled in. equity to be substituted to the right of the…

This was an action of assumpsit in the Circuit court of the county of Rappahannock, brought by James M. Colvin against Alexander F. Menefee. The object of the suit was to recover the price of a slave named Milley, which had been sold by Menefee as trustee in a deed, and which Colvin claimed to have been his property. On the trial of the cause the defendant asked for an instruction, which was given by the court; and the plaintiff excepted.

Samuel H. Binford in his lifetime was indebted to John and Wright Southgate, by a specialty bearing date the 26th of November 1811, for 400 dollars payable sixty days after date. On the 27th of March 1820, Jesse B. Du-puy qualified as administrator of Binford, and gave bond as such in the penalty of 17000 dollars, with William H. Neilson and William Neale as sureties.

Samuel H. Binford in Ms lifetime was indebted to John and Wright Southgate, by a specialty bearing date the 26th of November, 1811, for 400 dollars payable sixty days after date. On the 27th of March, 1820, Jesse L. Dupuy qualified as administrator of Binford, and gave bond as such in. the penalty of 17,000 dollars, with William H. Neilson and William Neale as sureties.

In August 1847 Francis Williams filed his bill in the Circuit court of Pittsylvania, in which he charged that Thopias & Robert W. Williams, who were partners, made their negotiable note for six thousand dollars, payable to John McAlister, which was endorsed by McAlister and the plaintiff for the accommodation of the makers, and was discounted for them by the Farmers Bank of Virginia at Danville.

These were two actions of detinue brought in the Circuit court of Buckingham county, one by Thomas Pittman, sheriff, who sued for the benefit of Wards-worth, Williams & Co. against Benjamin Staton; and the other by the same plaintiff for the same parties, against Rosetta Staton. The object of both suits was to recover the same two slaves. The two cases were tried together, and the jury found verdicts for the plaintiff, subject to demurrers to the evidence by the defendants.

By a deed dated the 6th of February 1837, H. B. Barnes and W. A. Dandridge, of the county of King William, merchants and partners trading under the firm of Barnes & Dandridge, for and in consideration of certain liabilities thereinafter assumed by James P. Corbin, sold and conveyed to the said Corbin “all their entire stock of dry goods, groceries, hardware &c. contained in their store at Aylett’s in the county of King William, all the fixtures and furniture belonging to the…

By a deed dated the 6th of February, 1837, H. B. Barnes and W. A. Dandridge, of the county of King William, merchants and partners trading under the firm of Barnes & Dandridge, for and in consideration of certain liabilities thereinafter assumed, by James P. Corbin, sold and conveyed to the said Corbin “all their entire stock of dry-goods, groceries, hardware, &c., contained in their store at Aylett’s, in the county of King William, all the fixtures and furniture belonging…

George Pottie the elder, late of the county of Louisa, died prior to April 1815, leaving a widow and five children surviving him. By his will, after giving a few small legacies, he directed that the remainder of his estate, both real and personal, should be divided between his widow and children, as the law directs in cases of intestacy; and he appointed John Thompson of Culpeper his executor. The will was duly admitted to probat, and Thompson qualified as executor.

Oh the 12th of February 1828, Charles C. Patterson exhibited his bill in the superior court of chancery for the Lynchburg- district, setting forth, that he had various transactions during several years with one Thomas Campbell of Bedford county, since deceased, in the course of which transactions he borrowed money of said Campbell, under an express stipulation to pay him interest at the rate of 12 per centum per an-num on all sums advanced.

<p>On the 12th of February 1828, Charles C. Patterson exhibited his bill in the Superior Court of Chancery for the Lynchburg district, setting forth, that he had various transactions during several years with one Thomas Campbell of Bedford county, since deceased, in the course of which transactions he borrowed money of said Campbell, under an express stipulation to pay him interest at the rate of 12 per centum per annum on all sums advanced. That on the 25th of March 1820, he executed his bond to said Campbell for ¿£221 15 10, payable on demand, principally for money loaned at the rate aforesáid, the interest on the previous loans being calculated at that rate, and included in the bond. That afterwards on the same day he executed to said Campbell another bond, also payable on demand, for £7 12 5—exclusively for interest at the rate aforesaid on sums previously loaned, which Campbell alleged had been omitted in taking the larger bond. That on the 9th of October 1822, the complainant and said Campbell had a settlement up to that date, at which the complainant took in the two..bonds aforesaid, and executed a paper whereby he acknowledged himself indebted to Campbell in the sum of 1029 dollars 36 cents; a considerable part of that sum being made up of interest at the rate of' 12 per centum per annum, some of which had been compounded at that rate. That Campbell having agreed to advance to the complainant a further sum, sufficient, with the 1,029 dollars 36 cents, to make up the amount of 3,000 dollars, on condition that the complainant should pay interest at the rate of 12J per cent, per annum, and execute a bond for 3,000 dollars, and a deed of trust‘to secure the payment thereof, the complainant accordingly, under the pressure of pecuniary embarrassment, which had much increased since the commencement of his dealings with Campbell, executed his bond to said Campbell on the 23d of December, 1822, for 3,000 dollars payable on demand, and to secure the payment thereof, executed to Robert Campbell (a son of the said Thomas) and B. A. Eidson, a deed of trust on a valuable tract of 400 or 500 acres of land, and eight slaves. That when the bond for 3,000 dollars was taken, Campbell made a calculation of interest (on what sum the complainant does not know) which he said was to be included in that bond as part thereof; and immediately after the execution of the said bond and trust deed, he required complainant to execute another bond, for 63 dollars, which he said was also for interest. That complainant executed the bond for 63 dollars, and afterwards paid off and took in the same. That the express agreement between said Campbell and the complainant, before and at the time of executing the bond for 3.000 dollars and the trust deed, was that Campbell should pay to the complainant, in cash, at that time or in a few days afterwards, the difference between 3.000 dollars and the amount of the 1,029 dollars 36 cents with interest thereon at the rate of 12J per centum; but the said Campbell failed and refused to perform his part of the agreement, and instead of paying cash, procured outstanding debts due from complainant to other persons, to a considerable amount, and compelled him to allow them as part of the consideration for the bond of 3,000 dollars. That Campbell/ having subsequently advanced to complainant a claim for 680 dollars on one Irvine, and 150 dollars in cash, informed complainant in January, 1824, that he had made a statement of their accounts, including interest at the rate aforesaid, and required complainant to execute a further bond for 752 dollars 57 cents, and to secure the same by an additional trust deed. That complainant, without having ever seen the statement, accordingly executed his bond for the lastmentioned sum, and conveyed to the same trustees, for securing the payment thereof, another tract of land of 105 acres, and four other slaves. That complainant never did receive, directly or indirectly, the whole amount of the lastmentioned bond: that both the bond for 8,000 dollars, and that for 752 dollars 57 cents, were in part composed of usurious interest: and that the latter not only included interest on the former at the rate of 12J per centum, but interest compounded at that rate. That the complainant had at various times made considerable payments to the said Campbell (the dates and amounts were particularly set forth in the bill), which were applied to the extinguishment of the usurious- and illegal interest claimed of him. That the said Campbell died in 1827, intestate, and his two sons William and Robert, and his grandson M. D. Gray were the administrators of his estate. That the trustees in the deeds executed by the complainant had advertised for sale the property thereby conveyed to them, for the purpose of raising the amount which appeared to be due on the two bonds aforesaid. The bill made those trustees, and the administrators of Thomas Campbell, defendents, and called upon them to answer all the allegations thereof, and particularly to discover and set forth the rate of interest agreed to be paid by the complainant for moneys advanced him by the said Thomas Campbell, in what manner the amounts specified in the two bonds aforesaid were made up, the payments made by the complainant to the said Thomas Campbell, and the application of those payments. And the prayer of the bill was, that an injunction be awarded “to stay all proceedings on the said trust deeds, and the collec-. tion of the debt therein named, until the matter can. be fully heard in equity; that the whole matter be referred to a commissioner of the court, to adjust and settle, and expunge all compound, illegal and usurious interest, and credit your orator by all sums in any manner paid, and extend to your orator all such other and further relief and aid as his case may require and justice dictate; and that all persons be released from all penalties under the statutes against usury.”</p> <p>An ini unction was awarded according to the prayer ■ of the bill.</p> <p>All the defendants answered. They all disclaimed any knowledge of usury in the transactions between the intestate and the complainant; and the answers of William and Robert Campbell expressed the belief of those respondents that no usurious interest whatever was included in either of the bonds secured by the trust deeds. William Campbell said, it was not the practice of his intestate to include such interest in any of his bonds, but when he lent money at more than legal interest (as he sometimes did), he relied on the promise of the borrower for the excess. And Robert referred to and insisted on the statement of the bill itself, as incompatible with the allegation that usurious interest was included in either bond. These two respondents declared themselves ignorant of the manner in which the amount of either bond was made up. They admitted a payment of 950 dollars by the complainant to their father in his lifetime, but disclaimed all knowledge of any other, or of the manner in which that was applied.</p> <p>The two bonds of 3,000 dollars and 752 dollars 57 cents were exhibited with the answer of Robert Campbell; and all the other evidences of delpt, referred to by the complainant in his bill, were exhibited therewith. At the foot of one of these, namely, the bond for £221 15 10, was the following memorandum— “Agreed to pay 12 per cent.” And at the foot of another (the bond for 63 dollars) was the following: “The above note of $63, was for interest due at the time of taking the bond of $3,000, as believed not legal to put in with the principal.” Bach memorandum was proved to he in the handwriting of the decedent.</p> <p>The deeds of trust, it seems, were never filed in the cause.</p> <p>On the 27th of October 1828, the cause coming on to he heard, the court dissolved the injunction as to the sum of 1497 dollars 55 cents, part of the bond for 3,000 dollars, and as to the sum of 322 dollars 53 cents, part of the bond for 752 dollars 57 cents; which sums were the balances of principal monéy due on those bonds respectively, according to a statement made by a commissioner of the court, “to which” (the record stated) “there was no objection for the present by either party.” The court further ordered that the marshal should make sale of the land and slaves conveyed in trust to secure the bond of 3,000 dollars, or of so much as might be sufficient to discharge the said sum of 1497 dollars 55 cents; and of the land and slaves conveyed in trust to secure the bond of 752 dollars 57 cents, or of so much as might he sufficient to discharge the said sum of 322 dollars 53 cents; and should pay the proceeds, after defraying the expenses ■of sale, into one of the banks at Lynchburg, to the credit of the cause, and make report of his proceedings, in order to a final decree. At the same time the court referred the accounts between the parties to a commissioner, with directions to make two statements thereof, in one of which he should exclude all interest, and in the other allow it at legal rate.</p> <p>The marshal reported that on the-day of February 1829, he made sales of property comprised in the two deeds of trust, to the amount of 1820 dollars 8 cents (which was the aggregate of the two sums directed to be raised), besides the expenses of sale. That amount was, by an order of court made the 29th of May, 1830, directed to be paid over to the administrators of Thomas Campbell. The date of the actual payment to them was the 7th of July, 1830. .</p> <p>The commissioner to whom the accounts were referred reported, 1. A statement wherein the complainant was charged with 3,752 dollars 57 cents the aggregate of the two bonds secured by the trust deeds, and credited with 12 per cent, interest on the bond of £221 15 10 from the 25th of March, 1820, the date-of that bond, to the 23d of December, 1822, the date of the bond for 3,000 dollars,—with the amount'of the two small bonds for £7 12 5 and 63 dollars,—and with two payments of 200 dollars and 950 dollars. According to this statement, the balance due from the complainant was 2,287 dollars 63 cents. 2. A statement in which the complainant was charged with the amount of the two bonds for 3,000 dollars and 752 dollars 57 cents, and legal interest • on the same, and credited with half the amount of interest, half the amount of the two small bonds, and the whole amount of the two payments, which had been allowed in the first statement. According to this second statement, the balance due from the complainant on the 1st day of May, 1830, was 3,849 dollars 58 cents ot principal and interest.</p> <p>Both parties excepted to the commissioner’s report. To the first statement the complainant excepted, 1. Because a certain credit (which he specified) was not allowed him. 2. Because the charge for interest on the bond of £221 15 10 was less than it should have been. 3. Because he was improperly charged with the whole-amount of the bond of 3,000 dollars; “there being no evidence that the said Thomas Campbell ever advanced to the plaintiff the amount which, at the time said bond was executed, he contracted to advance to make up the sum of 3,000 dollars.” 4. Because the complainant was improperly charged with the amount of the bond of 752 dollars 57 cents, “when the sums constituting that amount may have been advanced to make up the amount of 3,000 dollars.” To the second statement the complainant excepted for the same reasons assigned in his exceptions to the first statement, and also because, in the said second statement, he was charged with interest, when, under the act of assembly, the creditor was entitled to none. The defendants excepted to the report for the following reasons : 1. “ This suit was not brought against Thomas Campbell in his lifetime, Avho could have given a true account of it: it is brought against his administrators, who can give no account of it. They deny (as far as administrators can deny such allegations) that the interest was included in the bonds. The plaintiff ought therefore to prove his case,, and in the absence of all proof on his part, it should be taken for granted that the sums expressed on the face of the bonds were the sums advanced.” 2. Because, the plaintiff having been credited Avith interest, it was improper to credit him also with the amount of the bonds for £7 12 5 and 63 dollars, which were given for interest, since that was to credit him twice for the same sum. 3. “The plaintiff in this case only seeks relief as to the compound, illegal and usurious interest (see his bill)The defendants are entitled, even if the court should think usurious interest was received, to their principal money with lawful interest upon it.”</p> <p>Many depositions were taken and filed in the cause; hut it is only material to notice the testimony of one of the witnesses; who deposed, that about November, 1825, a sale of the plaintiff’s property'being expected to take place for the benefit of Thomas Campbell, the AAfitness was requested by the plaintiff to propose to said Campbell, that he should take the property of the plaintiff at a fair valuation, in satisfaction of Ms debt, instead of' compelling a sale; and in a conversation with the witness on that occasion, said Campbell told him that 12 or 12J per cent, was the interest that the plaintiff had promised to pay. But the witness did not suppose this interest was included in the bonds, though he supposed there might be some written agreement for the payment of it.</p> <p>The cause was finally heard on the 25th of November, 1831; when the court overruled the exceptions •filed by the defendants to the commissioner’s report, sustained those filed by the plaintiff and approved and adopted a new statement made by the commissioner, in which the two bonds of 3,000 dollars and 752 dollars 57 cents were wholly disregarded as evidence of the amount advanced by Thomas Campbell to the plaintiff. Charging the plaintiff with the amount of the original bond for £221 15 10, and the principal of the sums which were proved by the other evidence in the cause to have been actually advanced to him by Thomas Campbell, and giving him credit for his payments, including the two small bonds of £ 7 12 5 and 63 dollars, and the net proceeds of the sales made by the marshal, this statement produced an excess of payments amounting to, 550 dollars 26 cents, with interest from the 7th of July, 1830. The court therefore proceeded to decree, that the injunction be made perpetual, and that the administrators of Thomas Campbell pay to the plaintiff, out of their proper goods and chattels, the lastmentioned sum with interest, and out of the assets of their intestate, the plaintiff's costs expended in this suit.</p> <p>From this decree the administrators of Thomas Campbell obtained an appeal to this court.</p>

This was an appeal from a decree of the superior court of chancery holden at Winchester.

<p>In 1773, a tract of land in L. county, purchased with money contributed by the members and parishioners of the church and parish of S. is conveyed to two persons, churchwardens of that parish, and their successors, “for the use and behoof of the present incumbent' of the said parish, minister of the church of 'England, and his successors, incumbents of the said parish, for■ever.” In September 1827, the overseers of the poor of L. ■county enter upon the land and make sale of it, under authority ■of the act concerning glebe lands, 1 Rev. Code, ch. 32 b. Whereupon a bill in chancery is filed against the overseers, the purchaser from them (who is in possession, but has not paid the purchase money), and the heirs of the original grantor, by W. S. and others, claiming to be the vestry and churchwardens, and T. J. claiming to be the minister and incumbent, elected and inducted in August 1827, of the said parish and the Protestant Episcopal church thereof, (the said W. S. and others suing also as individual members and parishioners, and on behalf of all the ■other members and parishioners); setting forth the facts above stated; insisting that the overseers of the poor acted without legal authority, and that so far as the said act concerning glebe lands assumed to confer such authority, it was contrary to the Constitution of the United States, and void; and praying that the overseers and the purchaser from them be restrained from all further interference with the land, that the latter be decreed to surrender the same, and account for its profits to the plaintiff T. J. and that the heirs of the grantor be decreed to convey the said land, by a more effectual deed, to trustees for the benefit of the plaintiffs. On a demurrer; to the bill, as not shewing any</p> <p>(Absent Tucker,* P.)</p>

This was am ¡action of ejectment in the Circuit court of Elizabeth City county, brought by James S. French against General James Bankhead, the officer of the United States in command at Fortress Monroe. The facts are stated in the opinion of the court delivered by Judge Allen.

The record, as originally certified to this court, presented the case as follows; In December 1782, George Clendenin and George Huston executed to John Mayo jr. an obligation in these words; “Know all men by these presents that we George Clendenin and George Huston, one of Greenbrier county and the other of Rockingham county, are held *and firmly bound unto John Mayo jr. in the just quantity of thirty thousand pounds weight of inspected crop tobacco with the casks, inspected…

The record, as originally certified to this court, presented the case as follows : In December, 1782, George Clendenin and George-Huston executed to John Mayo, Jr., an obligation in these words: “ Know all men by these presents that we George Clendenin and George Huston, one of Greenbrier county and the other of Rockingham county, are held and firmly bound unto John Mayo, Jr., in the just quantity of thirty thousand pounds weight of inspected crop tobacco with the casks,…

This was an action of ejectment in the Circuit court of Buckingham county, brought in February 1846, by the lessee of Elizabeth A. C'^bs and others against William H. Tapscott. Upon ie trial the defendant demurred to the evidence. 11 appears that Thomas Anderson died in 1800, having made a will, by which he appointed several persons his executors, of whom John Harris, Robert Rives and Nathaniel Anderson qualified as such.

On the 16th of August 1823, William P. Craighill entered into a bond with Nathaniel Craighill, William Little, John Griggs, William Grove, William Vestal and *Richard Duffield his sureties, payable to the United States, in the penalty of 50,000 dollars, conditioned for his faithfully discharging the duties of paymaster and military storekeeper at the United States army at Harper’s ferry.

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.

<p>On the 16th of August, 1828, William P. Oraighill entered into a bond with Nathaniel Oraighill, William Little, John Griggs, William Grove, William Vestal and Richard Duffield, his sureties, payable to the United States, in the penalty of 50,000 dollars, conditioned for his faithfully discharging the duties of paymaster and military storekeeper at the United States armory at Harper’s Perry.</p> <p>William P. Oraighill died the 24th of March, 1824, and on a settlement the 14th of June following, a balanee was found due from, him to the United States of 9,232 dollars 66 cents.</p> <p>Under the act of congress, approved May 16, 1820, (3 Story’s Laws U. S., 1791,) the agent of the treasury issued a warrant of distress; but it was not directed to the marshal of the district in which the delinquent officer had resided, or in which his sureties resided. Their residence was in the western district of Virginia, and the warrant was directed to the marshal of the'eastern district.</p> <p>Ón the 18th of March, 1826, the agent of the treasury addressed a letter to the marshal, stating that Little, one of the sureties, had been to Washington and solicited a stay of proceedings for a short time, to enable him to fulfil a contract with the war department, then in a course of execution, the proceeds of which were to be applied to the payment of the debt; and to raise whatever might be deficient from that source, it had been determined to allow'the sureties a period of four months from that date, for paying the whole amount of the debt and closing the account.</p> <p>On the 31st of July following, the agent of the treasury addressed a second letter to the marshal, requesting him to suspend further proceedings on the warrant until the 1st of August, 1827, upon the parties to the bond paying the costs.</p> <p>The payments by Little on account of the debt, were made in December, 1824, February, May and October, 1825, and June, 1827, and amounted altogether to 3,428 dollars 87 cents. There was still a balance due the United States from William P. Craighill, of 5,803 dollars 79 cents.</p> <p>On the 28th of September, 1827, a warrant was issued to the marshal of the western district of Virginia, commanding him to proceed immediately to levy and collect the said amount of 5,803 dollars 79 cents, by distress and sale of the goods and chattels of William P. Craighill, deceased) or of his legal representatives; and should there not be found sufficient goods and chattels to satisfy the same, then to levy and collect the said sum of 5,808 dollars 79 cents, or so much thereof as might be due and unpaid, by distress and sale of the goods and chattels of Nathaniel Craighill, John Griggs, William Little, William Grove, William Vestal and Richard Nuffield, sureties of the said William P. Craighill; and.should there not be sufficient goods and chattels of the principal or of the sureties, then to levy upon and expose to sale at public auction, for ready money, to the highest bidder, the lands, tenements and hereditaments of the said William P. Craig-hill; and should there not be found sufficient lands, tenements and hereditaments of the said William P. Craighill, then to levy upon and expose to sale, in like manner, the lands, tenements and hereditaments of the said sureties.</p> <p>On the 10th of November, 1827, the agent of the treasury addressed a letter to the marshal, stating that the sureties of William P. Craighill, who were then in Washington, had applied for six months indulgence, in order not only to enable them to make up the money for which they were bound, but to afford them timé to try the experiment of making the whole or a part of the debt from the landed property of Craighill, their principal; and under the circumstances of the case as detailed by them, which appeared to be one of hardship, he (the agent of the treasury) felt no hesitation in granting the indulgence solicited, provided the marshal should consider the debt perfectly safe, or if not, then provided they would secure it to his satisfaction.</p> <p>On the 5th of February, 1828, the agent of the treasury requested the marshal to suspend proceedings under the warrant against Grove and Nuffield, two of the sureties, for 1 and 2 years, and proceed without delay against the. legal representatives of the principal, and the other sureties.</p> <p>In reply to a letter from the marshal, the agent of toeasury wrote to him on the 27th of March, 1828, as follows: “ Mr. Richard Duffield and Mr. William Grove, two of the sureties of William P. Craighill, having pledged themselves to me to pay the entire debt with interest of Craighill in 1 and 2 years, the personal and real property of Craighill and the other sureties is to be sold under the warrant in your hands, for their benefit, and on such terms and conditions as they shall prescribe: provided, however, they take upon themselves the responsibility of guaranteeing the sale to the purchaser or purchasers. The United Statés are not responsible in any event for the consequences which may result from the sale, and you will make this known at the time of the sale.”</p> <p>The marshal made a return upon the warrant, in these words: “ Made 755 dollars from the estate of W. P. Craighill, 1,524 dollars 54 cents from the estate of William Yestal, and 1,000 dollars frem the estate of Nathaniel Craighill. Richard Duffield and William Grove were the purchasers for the above amounts, for their own benefit, agreeably to the directions from the agent of the treasury.”</p> <p>The return of the marshal, and his deed to Duffield and Grove, bore date the 29th of April, 1828. The deed recited that the marshal levied the warrant upon a tract of land claimed to belong to Nathaniel Craig-hill, situate in the county of Jefferson, and described particularly in the deed by metes and bounds, “and having duly advertised the time and place of sale of the said land, according to law, proceeded to sell the same at public auction, at Charlestown, on the-day of-, at which sale Richard Duffield and William Grove became the purchasers, being the highest bidders, having bid therefor the sum of 1,000 dollars.”</p> <p>In the meantime, to wit:' on the 20th of August, 1827, a deed had been made by Nathaniel Craighill to ■John E. Page, conveying the same tract of land, upon certain trusts therein expressed.</p> <p>Grove and Nuffield, after purchasing the land of Nathaniel Craighill, thus previously conveyed, filed their bill in the Superior Court of Chancery at ‘Winchester, in July, 1828, impeaching the deed of the 20th of August, 1827, as fraudulent and void, and setting forth, that under color of this deed, William Little was in possession of a saw-mill on the premises, and wood-land adjacent, and was engaged in cutting down, sawing, and disposing of the timber. The bill made defendants Nathaniel Craighill, John E. Page, William Little, and others who might claim under the deed of August 20th, 1827, to wit: the children of William P. Craighill, the children of William Little, ■the Farmers and Mechanics Bank of Georgetown, and .Samuel J. Cramer. And the prayer was, that the said deed might be annulled; that the plaintiffs might be put in full possession of the land which they had purchased; and, until the merits of the case should be decided on, that an injunction might be awarded to restrain waste.</p> <p>An injunction was awarded accordingly.</p> <p>There was filed with the bill, as an exhibit, a transr cript of the record in an action brought by John Grove against Nathaniel Craighill and William Little. By this record it appeared, that judgment was obtained in this action on the 20th of April, 1818; that after the death of John Grove, a scire facias issued on behalt of William Grove, as his administrator, to revive the judgment, upon which scire facias execution was awarded the 19th of September, 1820; that a forthcoming bond was given, with.Samuel J. Cramer as surety, upon which judgment was rendered the 17th of. April, 1821; that on the 31st of August, 1826, a scire facias issued to renew the judgment, upon which,execution was awarded the 24th of August, 1827; and. that a writ of copáis ad satisfaciendum issued the 12th September, 1827, under which Craighill was com- ■ mitted to jail, Little took the oath of insolvency, and Cramer was admitted to the bounds.</p> <p>The bill mentioned the fact that Nathaniel Craighill was confined in jail under this ca. sa. at the time of" the sale by the marshal, and at the time of filing the bill. And the circumstance of the scire facias being on the docket at the time of making the deed of the 20th of August, 1827, was relied on to shew the fraudulent intent in making that deed. But -the bill did not assert any lien on behalf of Grove’s administrator by reason of the judgment.</p> <p>In the answer of William Little it is stated, that besides the land of William P. Craighill which the complainants bought for 755 dollars, they purchased under the same warrant several negroes belonging to his estate, for 580 dollars. It is admitted by the respondent that of the sums paid by him to the United States, about 1,800 dollars was paid out of the funds belonging to Craighill’s estate; but having paid for Craighill’s estate more than 2,000 dollars since his death, he claims to be considered as having paid to the government the whole amount credited as paid by him. This amount was equal not only to his own quota as surety, but to that of Nathaniel Craighill also,, and he was willing to have it considered that he had paid Craighill’s quota as well as his own. The land of Nathaniel Craighill, it is therefore insisted, should be regarded as discharged from the claim on account of which it was sold. It is farther insisted that the deed to Page was bona fide, and that the sale under the warrant was not made in a fair and proper manner.</p> <p>In the answer of Nathaniel Craighill it is stated, that William P. Craighill left personal estate which ought to have been applied to the payment of the debt due the United States; that this respondent’s land was not duly advertised, and that the sale thereof was not fairly and properly made.</p> <p>These answers were afterwards amended. Nathaniel Craighill, by his amended answer, insisted that the sale was altogether irregular, in consequence of the failure of the marshal to have the warrant of distress recorded in the District Court; and that it was illegal to sell any real estate, until all the personal estate, as well of the sureties as of the principal, was exhausted. He relied upon the fact of indulgence having been granted, without his assent, to William Little one of the sureties, and upon the stay of'execution allowed as to the complainants; a stay allowed, as he said, under the belief ot the agent of the treasury that the respondent was the principal and not merely a surety.</p> <p>It appeared by an additional return of the marshal, enclosed in a letter from him of the 23d of May, 1828, that he sold three slaves the property of William P. Craighill, for 597 dollars, to Richard Duffield, who paid, for the marshal’s fees and the expenses of surveying four tracts of land, 283 dollars 95 cents, leaving a balance of 313 dollars 5 cents.</p> <p>By a report from the agent of the treasury to the secretary of the treasury, it also appeared that when the agent allowed a stay of proceedings as to the complainants, to give them time to subject the land of Nathaniel Craighill, he was under the mistaken impression that Nathaniel Craighill was the principal debtor. Grove and Duffield assumed the payment to the United States of the entire debt with interest, and at the date of the report (June 10, 1829,) more than half of it had been paid by them. By an account from the treasury department subsequently filed in the cause, it appeared that Grove and Duffield paid 3,000 dollars on tlie 9th of February, 1829, and 3,320 dollars 22'. cents the 4th of February, 1830, in full of the debt and interest.</p> <p>On- the 29th of April, 1830, on the motion of the ■ plaintiffs, leave was given them to amend their bill, and the amendment was directed to be made in 60 days. It was never made.</p> <p>On the 9th of December, 1830, the court, being of opinion that, to do justice to the parties, the defendants Oraighill and Little should have leave to file a cross bill against the plaintiffs, asserting the pretensions of the defendants as stated in their answers, gave them leave to file such cross bill.</p> <p>The cross bill was accordingly filed, and an answer thereto put in by Grove andDuffield. In this answer.it was mentioned, among other things, that Nathaniel Oraighill had taken the oath of insolvency at the suit of Grove’s administrator, and that, at the sale by the sheriff, the plaintiff Grove became the purchaser of Craighill’s interest in the land at the price of 1,505 dollars. Along with the answer was exhibited a copy of the sheriff’s account of sales, and a copy of the deed from the sheriff to Grove.</p> <p>The children of William Little and of William P. Oraighill filed an answer to the original bill, insisting, among other things, that the warrant was not lawfully issued against the representatives of William P. Craig-hill, and that it could not be levied on any real estate until all the personal estate, as well of the sureties as of the principal, had been exhausted; and alleging that Grove, Duffield and Griggs had, at the time of the levy and sale, a large and valuable personal estate..</p> <p>There was filed a copy of the account of sales of the personal estate of William P. Oraighill by William Grove his administrator, and a copy of the administration account, whereby it appeared that the-administrator had. received 745 dollars 66 cents, that the funeral expenses, charges of administration, and commissions amounted to 289 dollars 49 cents, and that the balance and more was disbursed in paying executions against the deceased, debts binding his heirs, and due bills and accounts.</p> <p>It was proved that at the time of the sale of Nathaniel CraighilPs land by the marshal, Grove and Nuffield had considerable personal property, consisting of negroes, horses, cattle, &c. Indeed, in their answer to the cross bill, they stated the fact that the warrant of the 28th of September, 1827, was levied on their personal property in November of that year. The sale of it was prevented by the arrangement made by Grove and Nuffield with the agent of the treasury.</p> <p>There was evidence tending to shew the insolvency of Griggs, and that the land of Nathaniel Craighill. was not duly advertised. And there was also' much, evidence in relation to the conduct of the parties. It was the object of Grove and Nuffield to shew that Nathaniel CraighilPs deed was fraudulent, and that the funds out of which Little made payments to the United States were not his own.</p> <p>The causes being removed to the Circuit Court of Jefferson, came on to be heard in that court the 10th of April, 1833, upon the bills, answers, depositions and exhibits .* on consideration whereof, the court decreed that the injunction granted in the first case be • dissolved, that both the original bill and the cross bill be dismissed, and that the plaintiffs in each case pay to the defendants in each case their costs.</p> <p>On the petition of Grove and Nuffield, an appeal was allowed them.</p>

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 Boyles deceased. The declaration contained two counts.

In the circuit court of Henrico, at August rules 1830, a declaration in assumpsit was filed in the name of Samuel Dunn, otherwise called Samuel Dunn administrator of David Holloway deceased (who sues for the benefit and at the costs of Edward Valentine), against Eucy Price.

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.

In tlie Circuit Court of Henrico, at August rules, 1880, a declaration in assumpsit was filed in the name of Samuel Dunn, otherwise called Samuel Dunn, administrator of David Holloway, deceased, (who sues for the benefit and at the costs of Edward Valentine,) against Lucy Price.

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 dying during the controversy in the Circuit court, the opposition to the probat was continued by Sarah A. Parramore, who and the…

In the circuit superior court ot Orange, at October rules 1832, James Nelson junior filed a bill in equity against Landon Lindsay and Daniel Mason, setting forth, that some time in-, he executed to Lindsay a bond for-: that afterwards, jointly with W. L. Hume, he executed to Lindsay another bond, for-: *that on the -, he paid to Lindsay the full amount of this last bond, and took his receipt for the same: that shortly thereafter he was served with a writ, in the name of said…

This is the continuation of the same controversy which was before this court in November 1823 ; reported *2 Rand. 20.

In the Circuit Superior Court of Orange, at October rules, 1832, James Nelson, Junior, filed a bill in equity against Landon Lindsay and Daniel Mason, setting forth, that some time in-, he executed to Lindsay a bond for -: that afterwards, jointly with W. L. Hume, he executed to Lindsay another bond, for-: that on the-, he paid to Lindsay the full amount of this last bond, and took his receipt for the same: that shortly thereafter he was served with a writ, in the name of…

<p>This is the continuation of the same controversy which was before this court in November, 1823; reported, 2 Rand., 20. The ease, so far as material in reference to the subsequent proceedings, was thus :</p> <p>On the 26th of April, 1804, Philip Fitzhugh, Joseph Lewis, Junior, and Ferdinando Fairfax, entered into an agreement, by which Fitzhugh purchased of Lewis a tract of land in Loudoun county, called Clifton, and after stipulating for the payment of a part of the consideration in other ways, assumed to pay “the balance, of 8,333-J- dollars, out of a tract of about 19,20.0 acres of land, upon Bacon creek, of Green river, Kentucky, which - he, the said Fitzhugh, holds the obligation of Thomas Lang, to convey in due form, when required by the said Philip Fitzhugh, and which land the said. Fitzhugh hereby warrants to be clear of all ■claims for taxes or public dues; rating said land at two dollars per acre, on an average.” Then Lewis bound himself “to procure a proper conveyance of the said part of the said Green river land, to the amount of 8,333-J- dollars, at two dollars per acre, as aforesaid, to the said Fairfax, from the said Thomas Lang:” for which Lewis agreed to receive, and Fair-fax to make payment, in the manner particularly specified in the articles. “And should the above agreement take effect, the said Fitzhugh engages to procure from the said Thomas Lang, a conveyance of the whole of said Green river tract of land, to the said Fairfax, according to said Lang’s obligation to convey the same; and to receive in payment” certain lands particularly described in the articles. It was further agreed between the parties, that the contract should take immediate effect when Fitzhugh should determine to take the Clifton estate, he having the option to accept or refuse the same upon actual inspection. The agreement was signed and sealed by Fitzhugh, Lewis and Fairfax: and a writing thereto subjoined, •under the hand and seal of Fitzhugh, bearing date the 3d of May, 1804, statéd, that after viewing the Clifton estate, he thereby ratified the contract.</p> <p>Upon this agreement, Fairfax brought an action of •covenant against Lewis, in the late Superior Court of Law for Loudoun county, assigning the breach, that Lewis had altogether failed to procure a proper conveyance of the said part of the Green river land, to the amount of 8,333-j- dollars, at two dollars per acre, to the said Fairfax from the said Thomas Lang, and •that the said Thomas Lang had not, at the time of the •execution of the agreement aforesaid, or ever after, a good, sure, perfect and indefeasible estate, in fee, in and to the said Green river tract of land, whereby he could convey, by a proper conveyance to the said Fair-fax, the aforesaid part of the said tract.</p> <p>The defendant pleaded a general plea of covenants performed, on which an issue was made up. At the trial, the plaintiff filed a demurrer to the evidence, in which the defendant joined; and the jury was thereupon discharged, with the assent of the parties. Upon the demurrer to evidence, the court gave judgment for the defendant: and to that judgment Fairfax obtained a supersedeas, pending which he died, and the cause was revived in this court in the name of William Herbert, his administrator.</p> <p>The court being of opinion that the evidence stated in the demurrer was not adapted to the plea of covenants performed, and on that ground, holding that it was not sufficient in law to maintain the issue joined on the part of the defendant, reversed the judgment of the Superior Court, entered judgment that the . plaintiff recover against the defendant his damages sustained by occasion of the breach assigned as aforesaid, and remanded the cause, with a direction that .the said damages should be enquired of by a jury.</p> <p>After the cause got hack to the Superior Court-,' the ■ defendant moved the court to set aside the demurrer.to evidence, and allow him to file additional pleas; - to-which motion the plaintiff objected, insisting that the-court had no right or power, in that stage of the cause,. to set aside the demurrer and allow additional pleas to - be filed. Having taken time to consider the motion,. the court set aside the demurrer, and allowed the defendant to file four additional pleas tendered by him,-. which were filed accordingly. To which opinions and proceedings of the court, the plaintiff excepted, and: his exceptions were, ma.de part of the record.-</p> <p>Of the additional pleas thus filed, it is only necessary to notice the first and second. The first (after • setting out the agreement upon oyer, and protesting that no demand of performance was ever made by Fairfax on the defendant) averred, that after the con- ■ tract took effect, Fitzhugh did procure from Lang, a conveyance of the whole of the Green river tract of" land to the said Fairfax, at his request, according to the terms of the said articles. To this plea the plaintiff filed a general replication, and issue was there- • upon made up.</p> <p>The second additional plea (after oyer of the agreement, and protestation that no demand was made by - Ferdinando Fairfax on the defendant to procure a pro- - per conveyance of the said part of the Green river ■ land to the said Ferdinando from -the said Thomas Lang) averred, ‘Hhat he, the said Ferdinando, took-on himself to procure, and did procure, from the said Philip Fitzhugh,- an order on the said Thomas Lang • for a conveyance to be made to him the said Ferdinando, of the whole of'the said G-reen river tract of " land, according to the terms of said articles, under which said order the said Ferdinando procured a con- ■ veyance to-him. to be made and delivered by the said Thomas Lang, of the whole of the- said G-reen river.- ■ tract of land, that is to say, on the 30th day of September, 1804.”</p> <p>To this plea the plaintiff (protesting that no order was ever given by the said Philip Fitzhugh upon the -•said Thomas Lang for the conveyance of the said Green river land, upon any terms or conditions other than those upon which the said conveyance was stipu- . lated to be made by the articles of covenant) replied, that the said Thomas Lang, at the time that the said conveyance is alleged by the said defendant to have been made by him, the said Thomas Lang to the said Ferdinando Fairfax, that is to say, on the 30th day of September, 1804, was a married man, and his wife was then living, and that she survived the said Thomas, . her husband, and that by the laws of the state of Kentucky, where the said land was situated, she, the said wife of the said Thomas Lang, would have been entitled to dower in the said land, and that no deed was ever executed by the said Thomas Lang and his -wife to the said Ferdinando Fairfax, of the said Green river land, or any part thereof, in and by which ths dower interest of the wife of him, the said Thomas Lang, was relinquished, nor did the said wife of the said Thomas Lang ever relinquish her dower interest in the said Green river land, or any part thereof to him the said Ferdinando, nor did the said Thomas Lang ever make and execute to the said Ferdinando any deed containing any covenant or stipulation that the said land was free from all claims for taxes or public dues, and that he never did accept from the said Thomas Lang any conveyance of the Green river land, in satisfaction of the covenant on the part of the defendant, in the said articles contained, whereby the said defendant bound himself to procure from the said Thomas Lang a proper conveyance to the said Ferdinando Fairfax of the said part of the said Green iriver land.” To this replication the defendant demurred gener*ally, and the plaintiff joined in the demurrer. The court held, that the law upon the demurrer was for the defendant, and gave judgment that the plaintiff" take nothing by his bill, and that the defendant recover his costs about his defence expended: from which, judgment the plaintiff appealed to this court.</p>

In an action of assumpsit in the circuit court of Fayette, between Clement Vaughn & Co. plaintiffs and William V. Garland defendant, the defendant having pleaded the general issue, the plaintiffs, on their motion, had leave to file written interrogatories to the defendant. At the trial, the defendant offered to read to the jury, as evidence, the interrogatories and the answers thereto, and the plaintiffs objected to the reading of the same.

At a circuit court held for Rockingham county on the 16th of May 1835, Robert Eockridge was brought before the court by the jailor of Augusta county, in obedience to a writ of habeas corpus issued for the purpose, and the said jailor made a return on the writ, stating that Eockridge was a prisoner in his custody by virtue of a certain escape warrant, which he exhibited.

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

In an action of assumpsit in the Circuit Court of Fayette, between Clement Vaughn & Co., plaintiffs, and William V. Garland, defendant; the defendant having pleaded the general issue, the plaintiffs, on their motion, had leave. to file written interrogatories to the defendant. At the trial, the defendant offered to read to the jury, as evidence, the interrogatories and the answers thereto, and the plaintiffs objected to the reading of the same.

On the 10th of August 1816, Stephen R. Wilson and John Wilson jun’r, of the county of Wood and state of Virginia, executed a joint and several obligation to William Spencer in the sum of 4000 dollars, with a condition in the following words : “The condition of the above obligation is such, that whereas the above bound Stephen R. Wilson agrees to convey to the said William Spencer, by a good and sufficient deed in fee simple, clear of all incumbrances, all that tract or…

At a Circuit Court, held for Rockingham county on the 16th oí May, 1835, Robert Lockridge was brought before the court by the jailor of Augusta ■county, in obedience to a writ of habeas corpus, issued for the purpose; and the said jailor made a return on the writ, stating that Lockridge was a prisoner in his custody, by virtue of a certain escape warrant, which he exhibited.

This was an action of assumpsit in the Circuit court of Petersburg, brought by the Bank of Virginia against Littleberry E. 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 to be endorsed by Littleberry E. Stainback, by F. C. Stainback his attorney. Two of them bear date the 6th, and the third the 7th of February 1843.

On the 10th of August, 1816, Stephen E. Wilson and John Wilson, Jun’r, of the county of Wood and state of Virginia, executed a joint and several obligation to William Spencer in the sum of4,000 dollars, with a condition in the following words : “The condition of the above obligation is such, that whereas the above bound Stephen E. Wilson agrees to convey to the said William Spencer, by a good and sufficient deed in fee simple, clear of all incumbrances, all that tract or…

On the 6th of December 1821, a deed was made purporting' to be between John Lynch Charlton and Catharine B. G. his wife, of the county of Montgomery, of the one part, and Pamgla Ann Charlton, Emily B. Charlton and James Christopher Lynch Charlton, infants under the age of twenty-one years, of the same county, of the other part, whereby it was witnessed that the said John L. Charl-ton, for and in consideration of the natural love and affection which he bore to the said Pamela…

This was an action of assumpsit in the Circuit court of Petersburg, brought by C. C. Read & Co. against Littleberry E. 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. D. Osborne & Co. one thousand nine hundred and sixty-nine dollars and forty-two cents.

William W. Morris a free negro, applied by petition verified by Ms 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 appeal from a judgment pronounced against him.

<p>A father, in consideration of natural love and affection, makes a deed, which is duly recorded, conveying slaves and other property to three infant children, upon the condition understood and ' reserved, that the slaves are to remain in the donor’s possession during his life, and if his wife should survive him, that she shall have the use of one-third of the slaves and their increase, during her life. At the time of executing the deed, the father is indebted by two bonds, on which judgments are afterwards obtained, and the executions returned satisfied. Subsequent to the deed, he becomes appearance bail, and a judgment being obtained against him as such, the execution thereon is levied upon the slaves so conveyed, which are still in his possession, and they are sold by the sheriif. After the father’s death, an action of detinue is brought against the purchaser by the widow and children jointly, and another action is brought by the children alone; in each of which cases there is a special verdict, finding the facts before mentioned. Held : 1. The action in which the widow is joined cannot be maintainted, but that by the children alone is well brought. 2. The facts found do not constitute fraud per se. 3. So far as the fraud is matter of fact, the jury not having found it, the court cannot infer it.</p>

By an indenture made the 25th of August 1833, between William Harkins and Elizabeth his wife of the one part, and James H. Porsyth, Eli B. Swearingen and * John Goshorn of the other part, it was recited that Alfred Harkins, son of said William, was indebted to the president, directors and company of the bank of Mount Pleasant in the sum of 2500 dollars, by bond, in which the said James H. Porsyth and others were his sureties, and that the said William Har-kins was indebted…

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

<p>After husband and wife have signed, sealed and delivered, a deed of mortgage, two justices of the peace certify, in the form prescribed by the statute, that she personally appeared before them, and being examined privily and apart from her husband, and having the deed fully explained to her, she acknowledged the same to be her act ,and deed, and declared she had willingly signed, sealed and delivered the same, and wished not to retract it. In a suit in equity afterwards brought to foreclose the mortgage, it is contended that the deed is void as to the wife, for want of such explanation of its nature as the statute requires; and the depositions of the justices are taken to prove the fact that the deed was not fully explained to the wife: Held, as the privy examination, acknowledgment and declaration of the wife are certified by the justices, pursuant to the directions of the statute, the deed is effectual to pass all her right, title and interest.</p> <p>A deed of mortgage, containing a clause which provides, that after default, the mortgagees may enter upon the property, and receive the rents, issues and profits thereof fqr their indemnity, it is contended that no sale should be decreed 'unless the profits are inadequate for such indemnity; though there is in the deed an absolute conveyance of the fee, with a defeazance, as usual, in case of payment: Held, the right of the mortgagees to have a foreclosure and sale, is not impaired by the clause before mentioned.</p> <p>"When a foreclosure is decreed, the court is to exercise a sound discretion in relation to the period of redemption, and fix it according to the circumstances of the case. The usual time is six months, but less may be'allowed.</p> <p>Though the time allowed for redemption be only thirty days, an appellate court will nevertheless presume that the discretion of the court below has been properly exercised, if no application appears to have been made to that court for an extension of time.</p>

On the 23d of July 1849, Benjamin Herold made an entry with the surveyor of Pocahontas county, of three thousand acres of land on the waters of the Slate fork and Big Spring fork of Elk river, being the same land embraced in a deed to the said Herold and one David Hanna from Lewis Pennell, recorded in the clerk’s office of said county. 'The entry also described the land as adjoining the lands of Gr.

On the 20th of August 1823, an indenture was made between Robert B. White of the first part, Joseph Kean of the second part, and Alfred H. Powell and Robert *Vance of the third part, whereby it was recited that Powell and Vance had become the indorsers of sundry notes for White, discounted, some of them in the bank of the valley in Virginia, and others in the office of discount and deposit of the .Farmers bank of Virginia at Winchester; that they had also consented and…

This was an aetion of ejectment in the Circuit court of Ohio county, in which the lessees of James C. Johnston and Sophia his wife were plaintiffs, and Thomas Slater and John T. Churchill were defendants. The facts are stated by Judge Samuels in his opinion. The parties dispensed with a jury, and submitted the case to the decision of the court. There was a judgment for the defendants; from which the plaintiffs obtained a supersedeas to this court.

<p>A mere recital in a deed of trust, that the cestuis que trust are liable as indorsers for the maker of the deed, and that he is willing and desirous to indemnify and secure them from all loss and damage in consequence of their becoming indorsers, by conveying property for the purpose, will not entitle the indorsers, after the death of the maker, to rank as specialty creditors, in the administration of his personal assets. Accord. Jackson v. Sackett, 7 Wend., 94.</p> <p>Sureties in a bond, who pay it off after the death of the principal, are entitled to rank as specialty creditors of the principal, and if they be administrators of his estate, may retain whatever they pay on account of such suretyship, out of the assets that come to their hands as administrators, against other specialty creditors. The cases of Copis v. Middleton, 1 Turn. & Russ., 224, and Jones v. Davids, 4 Russ., 277, so far as they conflict with this doctrine, disapproved.</p> <p>The opinion of Parker, J., in the court below, that after the death of an administrator, a debt due to him from the decedent should be paid out of the assets collected by the administrator de bonis non, in preference to claims of other creditors of equal dignity, examined by Tucker, P., and disapproved.</p> <p>When a decree is right as between the appellants on the one hand, and each and all of the appellees on the other, it will be affirmed, without considering any question between the appellees.</p> <p>The power of an appellate court to take cognizance of a question between the appellees, arises only when, on the question between the appellants on the one hand, and one or more of the appellees on the other, a decision is made which disturbs the rights, as settled by the decree appealed from, of one or more.of the appellees: per Stanard, J.</p>

By an agreement under their hands and seals, between James McDowell of Rockbridge and Barnabas Johnson, bearing date the 8th day of September 1849, McDowell contracted to sell to Johnson a tract of land containing about eight hundred acres, lying in the county of Monroe, upon the Greenbrier river and Wolf creek, for the sum of nine thousand dollars; to be paid one-third by the 10th of October 1849, and the balance in two equal annual payments, with interest from this last…

Ejectment in the circuit court of Kanawha comity, in the name of John Doe, claiming in one count upon the demise of Thomas O. Taylor, and in another upon the demise of Adam Altz. Charles Burdett and Archibald Burdett were admitted defendants, and pleaded the general issue. On the 18th of May 1835, a jury was impanelled to try the cause.

In the year 1836 John T. McKee and his sister, the wife of Andrew Bratton, of Bath county, owned jointly a tract of land in the county of Rockbridge, lying on Kerr’s creek. On this land there was a large spring, -the stream from which entered into Kerr’s creek, making an acute angle with the creek, and. this angle of land belonged to McKee and his sister, and constituted a part of the tract owned jointly by them.

By a deed dated the 20th of April 1809, John Lee and wife, of Ohio county, conveyed to Alexander Caldwell (among- other property) two lots in the town of Wheeling, upon trust to sell the same, and apply the proceeds to the payment of certain debts due from Lee. *By another deed, dated the 13th of August 1811, John Lee conveyed to Noah Linsley, his heirs and assigns forever, all the property comprised in the former deed, (subject however to the trust created by that deed, so…

Ejectment in the Circuit Court of Kanawha county,, in the name of John Doe, claiming in one count upon the demise of Thomas 0. Taylor, and in another upon the demise of Adam Altz. Charles Burdett and Archibald Burdett were admitted defendants, and pleaded the general issue. On the 18th of May, 1835, a jury was impannelled to try the cause.

John Paris, late of the county of Augusta, died in 1839, having first made Ms will, which was duly admitted to probat. By Ms will he directed Ms executors to sell all Ms property, real and personal, except a,few articles of household furniture, which he gave to Ms sister Hannah Paris: And out of the proceeds he directed them to pay to his said sister two hundred dollars on account of her portion in her father’s estate, for which she had. a claim upon him.

Joseph Morrison brought an action on the case, in the circuit superior court of Ohio county, against the president and directors of the fire and marine insurance ^company of Wheeling, to recover the value of a house insured by the plaintiff with the defendants, and subsequently consumed by fire.

<p>By a deed dated the 20th of April, 1809, John Lee .and wife, of Ohio county, conveyed to Alexander Caldwell (among other property) two lots in the town of Wheeling, upon trust to sell the same,, and apply the proceeds to the payment of certain debts due from Lee-</p> <p>By another deed, dated the 13th of August, 1811, Lee conveyed to ÍToah Linsley, his heirs and assigns forever, all the property comprised in the former1 ¿gg^ (sllt)ject however to the trust created by that deed, so far as the debts therein mentioned had not been paid,) upon trust that Linsley should proceed to-sell the same at public auction or private sale, for cash- or upon a reasonable credit, and out of the proceeds pay, first, the balance remaining due upon the deed of trust to Alexander Caldwell, and then a debt of 807 dollars with interest, due to the administratrix of' Joseph Swann, deceased.</p> <p>John Lee and hfoah Linsley both died in the year-1814. The wife of Lee survived him, and he left also-four children his heirs at law, namely, Sally Ann, Ann. Maria, Elizabeth L. and John C. Lee. Linsley died without having executed the trust created by the deed' of 1811, and by his will he devised (inter alia) as follows : “ I do devise to my executors hereinafter named,, or the survivor of them, all lands conveyed to me in, trust, and I do direct and empower them, or the survivor of them, or their executors, to sell and dispose of the said property in the same manner that I, if living, could and ought to do, to effect the purposes and intention of the respective conveyances.” Samuel Sprigg and 2sToah Zane were appointed the executors,, and they proved the will and took upon themselves-the execution thereof.</p> <p>In 1818, Linsley’s executors, in pursuance of the-authority and direction contained in the will of their testator, proceeded to sell the two lots in Wheeling,, at public auction. Daniel Steenroad became the purchaser, at the price of 2,470 dollars, and received from Sprigg and Zane a conveyance of the property, bearIng date the 6th of April, 1818. The price of 2,470 «dollars was the full value of the two lots at the time of the sale.</p> <p>At this time, all the daughters of John Lee were •married women; Sally Ann was the wife of Josiah Chapline; Ann Maria, the wife of James C. Hughes; and Elizabeth L. the wife of Timothy Adams. Chap-line and wife were residing in Wheeling; Hughes and wife were non-residents of the commonwealth. The Interest of Adams and wife and of John C. Lee in the «equity of redemption of the two lots, had, previously ¡to the sale, been purchased by Alexander Caldwell; and both Caldwell and Chapline were present at the tsale, and assented to it. After satisfying the debt due Jo Swann’s administratrix, secured by the trust deed, .the executors of Linsley paid to Caldwell, as the assignee of Adams and wife and John C. Lee, 588 dollars, being one-half of the surplus proceeds of the two lots; and they paid to Chapline the remainder of that ••surplus; a moiety of it as the share to which he was ■entitled in right of his wife, and the other moiety as The share of Hughes and wife, for whom he undertook •to act in receiving the same.</p> <p>In the year 1820, James C. Hughes died, and his. widow removed to Virginia, and thenceforth resided with Josiah Chapline, who for several years succeeding lived in the town of Wheeling, and afterwards in its immediate neighbourhood.</p> <p>By a deed dated the 26th of January, 1820, Daniel ¡Steenrod and wife sold and conveyed to James Caldwell, for the price of 3,150 dollars, the two lots which ■Steenrod had purchased at the sale made by Linsley’s executors. Josiah Chapline was one of the justices who took the acknowledgment and privy examination of Mrs. Steenrod. James Caldwell paid the purchase money, and in 1826 and 1827 (during which period Chapline and wife and Mrs. Hughes were residing in-Wheeling), proceeded to make large and valuable improvements upon the property.,</p> <p>®y a deed dated the 10th of December, 1826, and recor<^e(^’ dohn C. Lee bargained, sold and conveyed to Jane Lee Chapline, (a daughter of Josiah Chapline,) for the consideration of 300 dollars, expressed in the deed, “all the undivided real estate-lying in the connty of Ohio or Tyler, which he inherited as one of the heirs of John Lee, deceased, and' all claims which he may have on the estate of the said John Lee, deceased;” together with a horse, saddle and bridle.</p> <p>At January rules, 1835, Josiah Chapline and Sally Ann his wife, Ann Maria Hughes, and Jane L. Chap-line, (by the said Josiah, her next friend,) exhibited their bill in the Circuit Superior Court of Law and Chancery tor the county of Ohio, against James Caldwell. By a subsequent amendment, Daniel Steenrod and Timothy Adams and wife, were also made defendants. After setting forth the execution of the trust deed of August, 1811, by John Lee, the sale and conveyance of the two lots to Steenrod by the executors-of the trustee, Steenrod’s sale and conveyance of them to James Caldwell, the coverture of the plaintiff, Sally Ann, at the time of the said sale by the executors of the trustee, and ever since: the coverture of the plaintiff, Ann Maria, at the time of that sale, and until-about the 7th of July, 1820, and John C. Lee’s conveyance to the plaintiff, Jane L. Chapline; the bill-proceeded to charge, that by the said conveyance from John C. Lee, (who was stated to have since died,)' Jane L. Chapline became entitled to all his interest in-, the real estate of his father, including the two lots in Wheeling; that the authority to sell those lots, conferred upon Linsley by the deed of August, 1811, was-a personal' trust, which he could not rightfully delegate, and which, after" his death, could not rightfully he. executed without the aid and decree of a court of equity; consequently, the sale of them by his executors having been made without such aid and decree, the plaintiffs may rightfully insist that the same be set aside and annulled; that the said lots are exceedingly valuable, and are in reality worth several thousand dollars more than the price at which they were sold, The prayer was, that Caldwell might be decreed to reeonvey the lots to the plaintiffs, upon such reasonable terms as should seem just, in order that a re-sale might take place under the directions of the court, and for general relief.</p> <p>Caldwell, in his answer, stated, that at the time he purchased the lots from Steenrod, paid his purchase money, and received his conveyance, he had no knowledge of any defect whatever in the title, or of the pretended equity of the complainants; that Chapline knew of his intended purchase, and neither made any objection to it, nor intimated that he, or any one else, had any claim to the property. The answer of this respondent set forth the several facts, (already detailed,) that Alexander Caldwell had acquired the interest of Adams and wife, and of John C. Lee, before the sale made by the executors of Linsley; that said Caldwell and the plaintiff Chapline, were both present at the sale, assented to it, and received the surplus proceeds—Caldwell the shares of Mrs. Adams and John C. Lee, and Chapline those of his wife and Mrs. Hughes; that the property produced its full value ; that Chapline and his wife had been residing in Wheeling and its immediate vicinity ever since the sale by Linsley’s executors, and Mrs. Hughes residing with them ever since the death of her husband in 1820; that Chapline was one of the justices who took Mrs. Steenrod’s. acknowledgment and privy examination; and that the respondent had made expensive improvements on the property. These^improvements, the answer allege^, were to the value of 7,000 dollars; and though Chapline, his wife, and Mrs. Hughes, were in a situation to see the lots, and did see them, almost constantly while the improvements were in progress, yet-they stood quietly by, making no objection to the improvements, and no claim to the lots; bnd with full knowledge of all the facts relative to their pretended rights, had slept over those rights for seventeen years. Respondent insisted that his equity was superior to any possessed by the complainants; that he had also the legal title; and consequently that his enjoyment of the property ought in no manner to be disturbed.</p> <p>Steenrod answered, referring to and adopting the answer of his co-defendant Caldwell. Ho answer was put in by Adams and wife.</p> <p>To the answers of Caldwell and Steenrod, the plaintiffs replied generally.</p> <p>Pending the suit, Mrs. Chapline died, and the cause was revived in the names of Jane LChapline and others, her children and heirs at law.</p> <p>John C. Lee’s assignment of his interest in the two lots to Alexander Caldwell, was produced and filed as evidence in the cause. It is under seal, and hears date the 20th of April, 1817. Much of the testimony taken related to the point whether John C. Lee had attained his age of twenty-one years at the date of that instrument. It seemed probable that he had not; although he must have attained full age in the ■ course of the same year. But it appeared that in August, 1826, he was in "Wheeling, and - had a settlement at that time with Alexander Caldwell. Several receipts given by him, for different sums of money paid him by Caldwell, were produced and proved. All of them are dated in August, 1826. One of them is for money paid on account of his “ share of the proceeds of the two lots on the main street in "Wheeling, now owned by James Caldwell;” and another, dated some days .afterwards, is “in full of all claims and demands.”</p> <p>The cause was heard the 13th of June, 1837; when the court decreed, that as to the plaintiff Ann Maria Hughes, and also as to the plaintiff Jane L. Chapline so far as she claimed under the deed from John C. Lee, the bill be dismissed with costs. But the court, being ■of opinion that the executors of Linsley had no authority to sell the lots in the bill mentioned, and that the heirs of Sally Ann Chapline were not barred, by lapse ■of time or otherwise, of their claim to redeem their undivided fourth part of the said lots, or to have the benefit of a resale—decreed that the cause be referred to a commissioner, for accounts to be taken of the debt and interest secured by the trust deed to Linsley; of the rents and profits of the lots since the sale by Linsley’s executors, and by whom received—charging the same with the taxes, insurance, and other charges on the property, necessarily and properly paid •or incurred, and with the value of the permanent improvements made upon the said property; and of the moneys received of Linsley’s executors by Josiah Chapline, on behalf of himself and his wife; all which “the commissioner was directed to report, in order to a final decree.</p> <p>On the several petitions of Ann Maria Hughes and James Caldwell, appeals were allowed them "respectively from the decree.</p>

In the year 1810 Robert Crawford of Augusta county, departed this life, having first made his will, which was duly admitted to probat; and John and William Poage qualified as his executors.

Joseph Morrison brought an action on the case, in. the Circuit Superior Court of Ohio county,' against-the President and Directors of the Pire and Marine-Insurance Company of Wheeling, to recover the value of a house insured by the plaintiff with the.defendants,, and subsequently consumedv by fire. Issues being-made up on the pleas of non assumpsit and payment, the parties stated and agreed the following case for the judgment of the court. 1.

In an action of debt in the circuit court of Kanawha county, between Sarah Stephenson administratrix of Samuel Stephenson, plaintiff, and James B. ■ Rust administrator of the estate of Clark Reynolds unadministered by William Reynolds deceased, defendant, a verdict was found for the plaintiff on the 28th of May 1839, and judgment rendered thereupon.

<p>In an action of debt in the circuit court of Kanawha county, between Sarah Stephenson administratrix of Samuel Stephenson, plaintiff, and James B. ■ Rust administrator of the estate of Clark Reynolds unadministered by William Reynolds deceased, defendant, a verdict was found for the plaintiff on the 28th of May 1839, and judgment rendered thereupon.</p> <p>At the trial, two bills of exceptions were filed by the defendant, one of which presented a question as to the admissibility of Charles G. Reynolds (a brother of Clark Reynolds), as a witness for the defendant. The parties agreed that Clark Reynolds died without will and without issue, having real and personal estate; that in December 1833 administration of his estate was committed to William Reynolds, his brother, who died leaving a widow and child, which child died and was survived by the widow; that in July 1835 administration de bonis non of the estate of said Clark Reynolds was granted to the defendant; that no inventory or appraisement of the estate of Clark Reynolds has ever been returned to the court which granted the said administrations, *nor has any settlement been made of the accounts of either of the administrators, nor any appointment made of commissioners to make such settlement; and that the said Charles G. Reynolds the witness so offered, and two other persons, are the distributees of the estate of the said Clark Reynolds, but that no distribution has been made bjr either of the administrators in the course of their administration. The testimony of the said Charles G. Reynolds being objected to by the plaintiff, on the ground that he was interested in the event of the cause, a release was executed and acknowledged by the said Charles G. Reynolds in open court, in the following words:</p> <p>“Know all men by these presents that I, Charles G. Reynolds, one of the distribu-tees of Silas Reynolds deceased and of Clark Reynolds deceased, all of the county of Kanawha, for and in consideration of the sum of five dollars to me in hand .paid by James B. Rust, late sheriff of the county of Kanawha, and as such administrator de bonis non of the goods and chattels, fights and credits which were of Clark Reynolds, have remised, released, confirmed and forever quit claim, and do by these presents remise, release, confirm and forever quit claim unto the said James B. Rust administrator as aforesaid, all right, title, interest, claim or demand which I may or can claim or demand as one of the distributees aforesaid, in and to the benefits of any judgment or recovery which may be had in favour of the said James B. Rust administrator &c. .aforesaid, in a suit at law now depending in the circuit superior court of law and chancery for Kanawha county, wherein Sarah Stephenson adminis-tratrix of Samuel Stephenson deceased is plaintiff, and said James B. Rust administrator as aforesaid is defendant, in as far as such recovery might increase the distributable surplus of the said estate of Clark Reynolds, and of the estate of Silas Reynolds the common ancestor of the said Charles G. ^Reynolds and Clark Reynolds. And I have also remised and released, and do hereby remise and release to the said James B. Rust administrator as aforesaid, all my right, title and interest in and to the estate of the said Clark Reynolds deceased, and in and to the estate of the said Silas Reynolds, and in and to the estate of William Re}rnolds deceased, as one of- the distributees of each of said estates, so far as the distributable surplus of the said estates, or either of them, may or can be increased by a failure of the plaintiff in the above described suit, to recover the amount claimed by her in the said suit. In witness whereof I have hereunto set iny hand and seal this 28th day of May 1839.</p> <p>Ch’s G. Reynolds [Seal.]”</p> <p>The circuit court was of opinion that this release did not render the said Charlés G. Reynolds a competent witness, and that to render him competent, it would be necessary that his distributive share in the personal estate of the said Clark Reynolds deceased should be released. The court therefore sustained the objection of the plaintiff to the competency of the witness; and the defendant excepted to the opinion.</p> <p>On the petition of the defendant, a super-sedeas was awarded.</p>

The declaration in this action was filed in the circuit court of Kanawha county, at January rules 1835. It was in the following words: “Kanawha county, to wit: The president and directors of the office of discount and deposit of the bank of Virginia at Charleston, Kanawha county, were summoned to answer William Tompkins of a plea of trespass *on the case.

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 plaintiif introduced in evidence a bond in the following terms: “ $ 2000.

<p>In an action against an administrator, a distributee being offered as a witness for the defendant and objected to by the plaintiff, a deed is produced from the distributee to the administrator, releasing his interest in the benefit of any judgment which might be rendered in favour of the administrator in that action, so far as such recovery might increase the distributable surplus, and also releasing his interest in the decedent’s estate, so far as the distributable surplus might be increased by the failure of the plaintiff to recover. Held: The objection to the witness was not removed by this release.</p>

The facts of the case appearing by the record were as follows— By an obligation dated the 4th of August 1824, James, Andrew and Edmund Wag-gener bound themselves jointly and severally to pay to Zebulon Dyer 736 dollars 57 cents. By an obligation dated the 31st of May 1826, James and Andrew Waggener bound themselves jointly and severally to paj to Dyer 300 dollars.

The declaration in this action was filed in the Circuit Court of Kanawha county, at January rules, 1835. It was in the following words: “Kanawha county, to wit: The President and Directors of the Office of Discount and Deposit of the Bank of Virginia at Charleston, Kanawha county, were summoned to answer William Tompkins of a plea of trespass on the case.

A writing purporting to be the will of Daniel Kincheioe the elder, of Wood county, was proved in the court of the said county at August term 1834, by the oaths of the subscribing witnesses, and was thereupon ordered to be recorded. It bore date the 4th of August 1826. The testator died the 14th of August 1834, having then very nearly completed his eighty-fourth year.

<p>Appeal from an interlocutory decree of the Circuit Superior Court of Mason county, pronounced on the: 18th of April, 1835, in a suit in chancery, in which the' appellee Zebulon Dyer was plaintiff, and the appellant William Waggener and others were defendants. The-facts of the case appearing by the record were as follows:</p> <p>By an obligation dated the 4th of August, 1824, James, Andrew and Edmund Waggener bound themselves jointly and severally to pay to Zebulon Dyer 736 dollars 57 cents. By an obligation dated the 31st of May, 1826, James and Andrew Waggener bound themselves jointly and severally to pay to Dyer 300> .dollars. And by an obligation dated the 6th of Octoher, 1828, James Waggener bound himself to pay to Dyer 111 dollars 50 cents. These obligations were given by James Waggener for money which he owed to Dyer, and in the first of them Andrew and Edmund Waggener, and in the second Andrew Waggener, were his sureties. At the time these debts were contracted, James Waggener owned little property besides his farm; which was one-fourth of a tract of land in Mason county, on the Ohio river, called Waggener’s bottom, containing upwards of 4,000 acres.</p> <p>On the 20th of January, 1826, James Waggener gave his note to his nephew, William Waggener, for the payment of 1,620 dollars 25 cents on the 20th of January, 1827, with interest from the date, and executed a deed of trust on his land to secure its payment, which authorized the trustee, in default of payment, to sell the land at public auction for cash, after advertising the time and place of sale for sixty days at the door of Mason courthouse, and in some newspaper most convenient to Mason county. This deed was duly recorded in May, 1826. The debt secured by the deed being unpaid, William Waggener, not long after the time for payment had elapsed, caused the land to be set up for sale by John D. Lewis, the trustee named in the deed. There was some sort of proof that the sale was advertised in a newspaper printed at Chilicothe, in the state of Ohio, and at the door of Mason courthouse, but it did riot appear for what length of time previous to the sale. The property was struck out to William Waggener at the price of 1,000 dollars, which was the only bid. The land was at that time worth much more; its cash value being variously estimated by the witnesses at from 1,500 to 7,000 dollars. William Waggener declared, before the sale, on the day of the sale, and after the sale, that he wanted the land for his own security merely—that he would hold it or dispose of it for that purpose only, and after satisfying his deht, the residue should belong to his uncle James and his family. The trustee conveye¿[ .¿pg jan(j ’William Waggener by deed dated the 2d of July, 1827. William permitted his uncle to retain possession of a part of the land till the fall of 1828, when he turned him out.</p> <p>On the 2d of September, 1828, William Waggener executed a deed of trust upon the land to secure a debt of 500 dollars to Henderson & Smith, payable the 2d oi September, 1829; and on the 4th of February, 1829, he executed another deed of trust on the land to secure a debt of 991 dollars 37 cents to Andrew Lewis, payable the 1st of February, 1830.</p> <p>In the spring of 1829, William Waggener wrote to Dyer, that he would convey the land to him, if he would pay the amount which James Waggener owed him, William: and he sent Dyer a similar message soon after by Andrew Waggener, who went to Pendleton, the county of Dyer’s residence, on a visit in May, 1829. Dyer replied that he would come to Mason between the 1st and 15th of September, to pay him the money according to his proposition. Dyer arrived on the 15th of September; but in the meantime William Waggener had sold to one Henry Cape-hart a part of the land, at the price of 1,800 dollars, and though he had not made the conveyance when Dyer arrived, he made it on the day after.</p> <p>Before Capehart’s purchase, it was known to William Waggener and others that James Waggener talked of bringing suit to set aside the sale to William; and that fact was communicated to Capehart before his purchase. Capehart, however, determined to run the risk, and accepted a deed from William Waggener, with special warranty only. He paid 300 dollars of his purchase money in a horse; 500 dollars in discharge of Henderson & Smith’s incumbrance; and the remaining 1,000 dollars by discharging the incumbrance of Andrew Lewis above mentioned, which was effected, in pursuance of an arrangement between William Waggener, Capehart, Lewis, and Alexander and Samuel M’Culloch, creditors of Lewis, by Cape-hart giving to the M’Cullochs his two bonds for 500 dollars each, payable in August, 1830, and August, 1831, with a deed of trust on the land he had bought of William Waggener, and the M’Oulloehs allowing to Lewis a credit for the same amount. Capehart’s ■deed to secure the payment of his bonds to the M’Oulloch’s, is dated the 16th of September, 1829, and conveys the land to John M’Culloch, as trustee.</p> <p>On the 9th of November, 1829, James Waggener and wife executed a conveyance of the same 1,000 •acres of land to Dyer, which was recorded in February, 1830. The deed is in form an absolute deed to Dyer in fee simple, with general warranty, but its intention, according to the declarations and acts of the parties to it, was to confer upon Dyer a security for his debt, and for this purpose to invest him with James Waggener’s right to redeem the land in possession of William Waggener and Capehart.</p> <p>. Accordingly, in April, 1830, Dyer commenced this suit, in the late Superior Court of Chancery for the Clarksburg district, and in May, 1830, filed his bill, making James Waggener, William Waggener, and Henry Capehart, defendants; setting forth his claims upon James, the fraudulent conduct of William, the irregularity of the “sale to him, the gross inadequacy of the price, his declarations, which shewed that he held as a trustee for James, his sale to Capehart, who had notice of the trust, and James’s conveyance by way of mortgage to the plaintiff. The bill alleged, also, that the debt of James to William Waggener had been greatly reduced. It sought an account of that debt, and of the rents and profits of the land since "William’s purchase, and a sale of the land for the payment of the plaintiff’s debt.</p> <p>The answer of James Waggéner corresponds, in its statement of facts, with the bill.</p> <p>The answer of William Waggener admits some payments made to him by James; admits that his bid of 1,000 dollars was the only bid; denies that he made any declarations before the sale, that he would purchase and hold the land as a mere security for his debt; but admits that he informed James, and perhaps others, after the sale, that he did not want the land; that all he wanted was his money; and declares that his own necessities and want of money induced him to have the land sold by his trustee, and after-wards to sell part of it to Oapehart. He denies the alleged inadequacy of price, but admits that he sold part of it to Oapehart for 1,800 dollars.</p> <p>Oapehart, by his answer, objects that the plaintiff" claims under a deed which is void by the statute prohibiting the purchase of pretensed titles. He declares that he was a purchaser from William Waggener for valuable consideration, without notice of any equity or claim of either James Waggener or the plaintiff against William; but insists, that if he could be affected with such notice, yet having paid off the incumbrances created by William on the land, he became clothed with all the rights, and substituted in the room of the creditors whose debts he discharged.</p> <p>The cause having been regularly transferred to the Circuit Superior Court of Law ancl Chancery for Mason county, Alexander and Samuel M’Culloch, in September, 1832, filed a petition, setting forth their interest as incumbrancers of part of the land under the deed from Oapehart to their trustee John M’Culloch, and asking to be made parties. An amended bill was accordingly filed, making them and their said trustee defendants: whereupon, they filed their answer, cle■daring that they acquired their incumbrance fairly, and without any knowledge or notice of the equitable claims preferred in the bill.</p> <p>Among the depositions for the plaintiff, that of Andrew Waggener was of primary importance. This deponent being asked whether he had any interest in the controversy, responded that he had none as he believed, and produced an instrument under the hand and seal of Dyer, dated the 25th of February, 1888, by which Dyer, reciting the two obligations wherein the deponent was bound as the surety of James Waggener, covenanted that he should never be sued upon them, and that no attempt should ever be made to enforce the collection of the same, or of either of them, from him by any process of law. This instrument was returned and filed with the deposition, the defendants by their counsel objecting to its being copied. They excepted also to the deposition on two grounds: 1st. That the witness was interested. 2dly. That the instrument produced by the witness was in effect a release, and the plaintiff therefore had no longer any claim.</p> <p>The cause being heard the 18th of April, 1835, the court overruled the exceptions to the deposition of Andrew Waggener, directed the land in the bill mentioned, to be sold at public auction, upon a credit of ■one, two and three years, after advertisement in the manner prescribed by the decree, and ordered several accounts to be taken by its commissioner, to wit: an account of the rents and profits of .the land since the date of the deed to William Waggener, with an account of the value of the permanent improvements put upon the land by William Waggener and Henry Capehart; and accounts of the debts due from James to the plaintiff, and from James Waggener to William; and of the mortgage debt of the M’Cullochs.</p> <p>On the petition of William Waggener, an appeal was allowed him from the decree.</p>

In December 1827 Terza London exhibited her bill to the judge of the superior court of chancery holden at Lynchburg, setting forth that about the 31st of December 1809, the complainant, whose maiden name was Higginbotham, intermarried with John London; that ‘some time after the marriage, her father John Hig-ginbotham delivered into her husband’s possession two female slaves, to wit, Par-melia and Elvira, “declaring at the time of said delivery his intention to give the said…

■ A writing, purporting to be tbe. will of Daniel Ilincbeloe tbe elder, of Wood county, was proved in tbe court of tbe said county, at tbe August term, 1884, by tbe oatbs of tbe subscribing witnesses, and’was thereupon ordered to be recorded. It bore date tbe 4tb of August, 1826. Tbe testator died tbe 14tb of August, 1834, having' then very nearly completed bis eighty-fourth year.

At the January term 1850 of the County court of Kanawha, Luke Wilcox filed a notice, with an affidavit of its service, to James G-. O. Brooks, that he would apply to said County court to ascertain the value in money of five thousand bushels of salt of first quality, &c. it being for rent in arrear, and reserved upon contract with him, and for which said Brooks’ property had been distrained; and for such other and further order as the court might lawfully make in the premises.

John Myrick late of the town of Peters-burg, in and by his last will and testament, bequeathed and provided as follows — “I give and bequeath to my son John L. My-rick the sum of 15000 dollars… Held: that, as Kevan had failed to prosecute his appeal from the sentence of the *hustings court which revoked his appointment to the office of guardian, the propriety of that revocation was not examinable there: that the sentence of revocation was to be considered as in full force.

In December, 1827, Terza London exhibited her bill to the Judge of the Superior Court of Chancery, holden at Lynchburg, setting forth, that about the gqst0f December, 1809, the complainant, whose maiden name was Higginbotham, intermarried with John London; that sometime after the marriage, her father, John Higginbotham, delivered into her husband’s possession two female slaves, to wit, Parmelia and Elvira, “declaring at the time of said delivery his intention to give the…

This was a writ of right brought in July 1829 in the County court of Augusta, by Joseph Rankin against Robert Koiner, which upon the death of Rankin was revived in the name of his heirs; The count claimed twenty acres of land adjoining the lands of Joseph Rankin and Robert Koiner, beginning at two white oaks corner to James Rankin’s land on the wetstone line, and then describing eight lines by course and distance, which upon being laid down on a plat did not close.

John Myrick, late of the town of Petersburg, in and by his last will and testament, bequeathed and provided as follows: “I give and bequeath to my son John L. Myrick, the sum of 15,000 dollars,… Held: that, as Kevan had failed to prosecute his appeal from the sentence of the Hustings Court, which revoked his appointment to the office of guardian, the propriety of that revocation was not examinable there; that the sen-fence of revocation was to be considered as in full force.

On the 16th of March 1837, George W. Pollard sued out of the circuit court of Henrico a writ of capias ad respondendum against Charles T. Botts, of a plea of debt, returnable to April rules. The declaration was filed at April rules, and was upon a specialty for the payment of money. Whereupon the defendant being arrested and not appearing, it was ordered that judgment be entered for the plaintiff, unless the defendant should appear and plead to issue at the then next rules.

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

Berryman Johnson, late of Louisa county, died in the year ISOS, having duly made his last will, by which he bequeathed one third of his personal estate to his wife Augusta A. and the remaining two thirds to his sous Pulaski A. and David B. tobe equally divided between them. He appointed his brother Thomas Johnson executor of the will, and his wife Augusta A. guardian of the two children.

This was a suit in equity in the Circuit court of Augusta county brought by Jane Thompson, widow of William Thompson, against his representatives, the administrator of Thomas R. Blair, Matthew Blair, William C. Snapp and Jacob Michael, to recover her dower in a tract of land then owned and in the possession of Michael. The facts are sufficiently stated in the opinion of Judge Allen.

On the 16th of March, 1837, George W. Pollard sued out of the Circuit Court of Henrico, a writ of capias ad respondendum against Charles T. Botts,.of a plea of debt, returnable to April rules. The declaration was filed at April rules, and was upon a specialty for the payment of money.

At the June term of the County court of Augusta in 1835, the will of Samuel Steele, junior, was admitted to probat, and Frances Steele his widow, who - was named executrix therein, qualified as such.

<p>Bill filed by two legatees against another legatee and the administrator, for a settlement of the administration account, and distribution of the estate; and question, whether, upon the pleadings and proofs in the cause, the administrator should be held liable-to his co-defendant for his share of certain slaves, claimed and forcibly taken from the administrator by the plaintiffs, under an alleged parol gift of the decedent in his lifetime.</p> <p>A father delivers a slave to his infant son, residing with him, and calls upon persons present to take notice that he gives that slave to the son, but says at the same time, that he claims an estate in the slave for his own life. Held : Nothing passes to the son by such parol gift.</p> <p>A guardian shall not be allowed, for his disbursements for the maintenance and education of the ward, more than the profits of the-ward’s estate; and those profits shall be taken exclusive of the increase of slaves belonging to the ward.</p>

On the first of August 1804 a lease was made from Stephen Wright to Dudley Wood-worth of a lot in Norfolk borough, for seven years, at a yearly rent of 300 dollars. Wood-worth covenanted to put on the lot a brick house, of a particular description, specified in the lease.

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. Bailey was defendant. In the year 1797 or 1798 John James the elder purchased from Joseph Spencer a tract uf between seven hundred and eight hundred acres of land in Wood county, and received a title bond for the title.

Action of assumpsit in the comity court of Albemarle, by Samuel Deitch j’r ag-ainst William D. Fitch. The declaration contained four counts : 1. indebitatus assumpsit for goods, wares and merchandise sold and delivered; 2. quantum valebant ; 3. for money lent and advanced, paid, laid out and expended, and for money had and received; 4. insimul computassent.

By a deed dated the 5th of May 1822, between William Brent junior of Stafford county of the first part, *John M. Conway and Philip Harrison of the second part, and Winifred L. Brent, wife of the said William Brent, of the third part, reciting that the said Winifred had “agreed to make a surrender of dower in various valuable tracts of land, and in sundry lots and houses in town property, in consideration of the said William Brent’s promising and agreeing to settle the…

In June 1848 Noah L. Wilson filed Ms bill in the Circuit court of Wood county, in which he alleged that on the 26th of September 1887 Enoch Sector 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…

On the first of August, 1804, a lease was made from Stephen Wright to Dudley Woodworth of a lot in hi or folk borough, for seven years, at a yearly rent of 300 dollars. Woodworth covenanted to put on the-lot a brick house, of a particular description,, specified in the lease.

Thomas King, of the county of King William, died in 1807, having made his last will, by which he devised and bequeathed his estate to his wife and his two children Allen and Ann, and appointed John Lord his executor; who qualified as such in February 1807, and gave bond in the penalty of 12000 dollars, with Philip Aylett as his surety. John Lord died in 1814, having never settled the account of his administration of Thomas King’s estáte.

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 iu 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>Construction of tbe act, 1 Rev. Code, ch. 128, $ 86, which declares, that 11 in every action of indebitatus assumpsit, the plaintiff shall file with his declaration an account, stating distinctly the several items of his claim against the defendant; and in failure-thereof, he shall not be entitled to prove before the jury any item which is not so plainly and particularly described in the declaration, as to give the defendant full notice of the character-_ thereof.”</p> <p>If the proof offered by the plaintiff be such as to sustain the count of insimul computassent, it is of no importance whether there-be any account filed or not; for this count does so describe the plaintiff’s demand, as to give the defendant sufficient notice of the character thereof.</p> <p>The plaintiff in assumpsit files with his declaration an account commencing in these words, “1833, Jan’y 1. To balance dueler account rendered, $1405 07,” which account he produces at the trial, and a witness is introduced to prove, that, at the date of' this item, the plaintiff delivered to the defendant a full bill or-account to the amount of 1,405 dollars 7 cents, and that the-defendant acknowledged the same, and promised to pay it. Held : Such proof may be received under the insimul computassent count.</p>

John Street the younger died intestate in the year 1797. His father John Street the elder was his heir at law. Administration of his estate was granted by the county court of Hanover to his brother Parke Street. *John Street the younger had been in his lifetime, for some years, a deputy sheriff of the county of Hanover. He died indebted on account of sundry liabilities which he had incurred in his official character, and otherwise indebted by specialties binding his heirs.

By a deed dated the 5th of May, 1822, between William Brent, Junior, of Stafford county, of the first party John M. Conway and Philip Harrison, of the second part, and Winifred L. Brent, wife of the said William Brent, of the third part, reciting that the said Winifred had “ agreed to make a surrender of dower in various valuable tracts of land, and in sundry lots and houses in town property, in consideration of the said.

<p>J T died in 1823, leaving -seven children, and seized in fee of a tract of land. S T, one of his sons, took possession of the land soon after his death, claiming that J T had made a will giving -it to him for life, with remainder to his two sons; and he filed a bill against the other heirs to-set-up the will, which could not be found. This suit was pending until 1837, when it was dismissed for a failure to give security for costs. -S T held the exclusive possession of the land during his life, and his two sons and those claiming under them, continued to hold it until 1844, when the other heirs filed a bill for partition of the land; and in that suit the court directed that the plaintiffs--should first-establish their title-at law. At the death of J T four of his heirs were married women, and three of them so continued; one of them died in 1832, leaving infant children and her husband surviving her; and he died in 1833{ This suit was brought in 1848. Held :</p> <p>1. That S T having taken possession of the land in 1823, claiming title to it, and his sons having taken possession on his death, and they and those claiming under them having continued to hold the land claiming title, such taking and holding possession was adverse to the other heirs, and the statute of limitations commenced to run from the time of such taking possession b.y -S T.</p> <p>2. That the pendency of the suit brought by S T to set up the will of J T, did not prevent the running of the statute; that, having commenced to run, could not be stopped by anything occurring subsequently: And moreover, the will as a will of lands, being valid without probat, and the suit being not to acquire title, but to establish evidence of title.</p> <p>3. If -in the suit for partition the heirs of J T had alleged and proved any equitable grounds to repel the statute, the chancery court might have given it effect by an order, when directing the suit to be brought for trial of title; but no such ground having been shown, and no such order made, the statute must have the operation which a common law court ascribes to it.</p> <p>4. The statute runs against the femes covert and their husbands; so as to bar a recovery during the coverture.</p> <p>5. The infant children of the female heir who died a feme covert, are barred after three years from the death of their mother, though they may continue infants all that time.*</p>

Thomas King, of the county of King William, died in 1807, having made his last will, by which he devised and bequeathed his estate to his wife and his two children, Allen and Ann, and appointed John Lord his executor; who qualified as such in Pebuary, 1807, and gave bond in the penalty of 12,000 dollars,, with Philip Aylett as his surety. John Lord died in 1814, having never settled the account of his administration of Thomas King’s estate.

Loyd, a merchant of Alexandria, having many debts due to him from persons residing in the counties of Loudoun and Fau-quier, employed Smith, an attorney at law, to collect the same for him. Smith proceeded to collect, and was many years engaged in collecting, the debts; and he made remittances to Loyd, from time to time, on account of his collections. But when the parties came to settle their accounts, irreconcileable differences arose between them.

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

By an act of assembly, passed in March 1819. a company was incorporated by the name of The Cartersville Bridge Company, and privileges were given to the company to build a bridge across James River at Cartersville, and to demand and receive certain tolls for passage and transportation over the same.

John Street, the younger, died intestate in the year 1797. His father John Street, the elder, was his heir at law. Administration of his estate was granted by Qolm£y Court of Hanover to his brother Parke Street. John Street the younger had been in his life time, for some years, a deputy sheriff of the county of Hanover. He died indebted on account of sundry liabilities which he had incurred in his official character, and otherwise indebted by specialties binding his heirs.

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.

Smith applied to the county court of Hanover for leave to build a water grist mill on Mataduquin creek in that county, and a dam across the… Held: that the inquisition was insufficient and defective, in not finding, with- certainty, whether the health of the neighbourhood would or would not be injured by the erection of the proposed mill and dam; and, therefore, it reversed the judgment, directed that the writ of ad quod damnum and the inquisition should be quashed, and…

<p>Where one is indebted to another for several debts, and the debtor makes payments, without directing to which of the debts they shall be applied, and the creditor makes no particular application of the payments when received, there is no settled rule that the payments shall be applied either according to the presumed intention of the creditor, or according to the presumed intention of the debtor, or that the payments shall be applied in the manner most beneficial to the one or to the other; but it devolves on the court to apply the payments according to the justice of the particular case, with a view to all its circumstances.</p> <p>In general, where several debts are due, and payments .are made without specific application by either debtor or creditor at the time, the payments ought to be applied to extinguish the debts according to priority of time.</p>

Detinue for a slave named John, brought in 1829, by Wesley Duncan and Sarah his wife, William Davidson *and Mary his wife, and William and Henry Camden, against Wright, in the circuit court of Nelson. Pleas, non detinet and the statute of limitations.

By an act of assembly, passed in March, 1819, a ■company was incorporated by the name of Tim Cartersville Bridge Company, and privileges were given to the company to build a bridge across James river at Cartersville, and to demand and receive certain tolls for passage and transportation over the same. The company was formed, and the bridge built, according to the charter.

James Corbin died intestate and without issue in 1834, leaving a small real estate and personal of much greater value. His distributees were his widow Mary, who was entitled to half of his personal estate, and his mother Daphne West, and his natural brothers on the mother’s side, Austin Peay, Benjamin Hnrd, and Corbin Dane, who were each entitled tó a fourth of the other half.

In March 1848 James C. Johnston filed his bill in the Circuit icourt of Ohio county against Jacob S. and William W. Shriver, trustees of PlatofF Zane and Eliza Jane his wife 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.

<p>Smith applied to the County Court of Hanover for leave to build a water grist mill on Mataduquin creek in that county, and a dam across the stream, he being the owner of the lands on both sides thereof above and below the place where he proposed to build his mill and dam. The court ordered a writ of ad quod damnum, whereupon a jury was regularly summoned by the sheriff, and an inquisition returned, finding “that the lands of no individual would be overflowed or damaged, either above or,below, by the erection of a falling dam sufficient to hold nine feet of water,, save the lands of Smith himself, the applicant; that the water would not overflow the mansion house of any proprietor, or the offices, curtilage 'or garden thereunto immediately belonging, or orchards; that fish of passage, and ordinary navigation would not be obstructed thereby; and that the health of the neighbours would be less or as little annoyed by the stagnation of the waters as it was possible it should be m the erection of any dam.” Upon the return of the inquisition, "Waddill, a mill owner and farmer, residing about a mile and three quarters from the site of the proposed mill, appeared and was admitted defendant to oppose the application.</p> <p>At the hearing, Waddill objected to the grant of leave to Smith to build the mill and dam, on the ground, that the finding of the inquisition was not certainly responsive to the inquiry propounded to the jury, touching the annoyance to the health of the neighbours from the stagnation of the waters by the mill dam, if erected; and that if it was certainly responsive on that point, the finding was in substance against the applicant. And Waddill’s counsel at the same time intimated, that they designed to offer testimony, at another stage of the qause, upon the question whether the health of the neighbourhood would be affected by the proposed mill pond; upon which the counsel for Smith called on Waddill’s counsel to produce their testimony at once; insisting that they ought not to be allowed to try the case by piecemeal, to take the chance of a favourable decision upon their objection to the inquisition, and if they should fail in that, then to offer testimony to shew that the health of the neighbourhood would be annoyed by the stagnation of the waters by the proposed dam. Waddill’s C0lmS(q gai¿ they relied on the inquisition itself as conclusive against Smith’s application for leave to "build the proposed mill and dam; as ascertaining, in effect, that the stagnation of the waters in the mill pond would be injurious to the health of the neighbourhood : and they insisted, that they could not be required to offer testimony in support of the finding of the inquisition. The court, without deciding whether Waddill’s testimony should be then adduced or not, proceeded to hear the objection founded on the inquisition, and overruled the same. And then Wad-dill’s counsel proposed to introduce evidence to shew, that the health of the neighborhood would be annoyed by the stagnation of the waters in the mill pond, if the proposed dam should be erected. But the court said it had already decided the whole case, refused to hear the evidence offered, and gave Smith leave to erect his mill and dam. Waddill filed a bill of exceptions, stating the proceedings at the hearing, and appealed from the order granting Smith leave to erect the mill and dam, to the Circuit Superior Court.</p> <p>■ In the Circuit Superior Court, the testimony of witnesses was admitted and heard; but that court did not found its judgment on the testimony, which, therefore, was not inserted in the record. It held, that the inquisition was insufficient and defective, in not finding, with certainty, ^whether the health of the neighbourhood would or would not be injured by the erection of the proposed mill and dam; and, therefore, it reversed the judgment, directed that the writ of ad ■quod damnam and the inquisition should be quashed, and remanded the case to the County Court for further proceedings on Smith’s application; To which •order, this court, upon the petition of Smith, allowed him a supersedeas.</p>

This was an appeal from a decree of the circuit superior court of Gloucester, upon a bill in equity filed by Curtis against Clarke, for specific execution of a contract of sale. Held: and yet held, the stock &c. as the agent of Colton & Clarke, subject to their control. He had, as agent for Clarke, before his sale to Colton & Clarke, sold two cows.

Detinue for a slave named John, brought in 1829, by Wesley Duncan and Sarah his wife, William Davidson -and Mary his wife, and William and Henry Camden, against Wright, in the Circuit Court of Nelson. Pleas, .non detinet and the statute of limitations.

This was an ejectment in the Circuit court of Jackson county. The declaration contained one count on the demise of Hbnore G-irond, another of. the president and directors of the literary fund, a third of J; E. Norvell and John De Homergue, a fourth of said Nor veil; and Eugene Levasser, and a fifth in the name of Eu- - gene Levasser alone.

<p>Deed of trust conveys property to a trustee, in order to secure payment of a debt “not then ascertained but supposed to be about 2000 dollars,” and of another debt “not then ascertained but supposed to be about'1800 dollars;” and by a subsequent deed of trust, part of the same trust subject is conveyed' to another trustee, to secure payment of the same debts, stating the one to-be “about 2000 dollars,” and the other “about 1800 dollaisj”' with power to the trustee to sell the trust subject, and pay the debts out of the proceeds. Held : The trustee under the la’st deed cannot proceed to sell the trust subject till the amounts of the debts actually due are ascertained by proper settlements.</p> <p>Where a debt secured by a deed of trust appears by the deed to be of unascertained amount, either party may resort to a Court of Chancery to have the amount ascertained by accounts taken under its direction, and all aocounts affecting the amount of the-debt ought to be directed; and the trustee cannot proceed to sell the trust subject until the debts are settled and ascertained.</p>

In’ assumpsit by Wyatt’s administratrix against Wynn, in the circuit superior court of Dinwiddle, a summons* was issued, directed to the coroner* of the county, commanding him to sitmmon the defendant to appear on the return day and answer the plea, dated’ th,e 11th Hay 1835, and returnable the next rule day, namely, the 'first moriday in June.† The coroner’s return was, “Not *found', arid a copy delivered át the defendant’s house‘to his son of lawful age,” without stating…

<p>Upon an agreement to sell to three joint purchasers land and certain personal chattels then upon it, for a sum in gross, to be paid when the vendor shall have made a deed of the land and a bill of sale of the personal effects, and that the purchase money shall be paid in equal instalments at future days appointed, vendor, without making such conveyance, delivers possession of hoth the real and personal subject to the vendees. Held: The making-the conveyances by vendor is not a condition precedent to his right to demand the purchase money.</p> <p>About the time when first instalment falls due, two of the joint purchasers, by agreement of the other and of vendor, are discharged from the contract; and by new agreement between vendor and the third purchaser, he becomes sole purchaser of same subject, for same price, with no other variance but that vendor gives further indulgence for the first instalment; and then vendor agrees to make conveyances of the property to the new sole purchaser, whenever he shall make such payments as they shall agree upon; two months further indulgence is given for the payment of first instalment; purchaser continues in possession of the real and personal property; hut vendor makes no conveyance. Held:</p> <p>1. A bill in equity lies for vendor against vendee for specific execution of the whole contract, in respect as well of the personal as of the real part of the subject sold.</p> <p>2. As between vendor and vendee, the agreement in respect to the sale of the personal subject was not executed by delivery of possession thereof to vendee, but yet remained executory; and vendor retains a lien on the personal as well as real property, for the purchase money of the whole; dissentiente Stanard, J., as to the lien on the personalty.</p> <p>3. To preserve the security of that lien unimpaired to vendor, the court may properly enjoin the purchaser, and his agent, from committing waste on the land and from selling or removing the personal property.</p> <p>4. And court may properly decree sale of the whole property, real and personal, for payment of the purchase money, unless purchaser shall pay it within a reasonable time given him by the decree.</p> <p>But it is erroneous to order sale of the personalty on motion of plaintiff\ before the hearing; and if it he in fact sold under such irregular order, vendor shall give credit for the proceeds, whether collected or not, in part of the purchase money. 5.</p> <p>And it is erroneous to decree payment of purchase money against the purchaser, or a sale of the land by commissioners, without-providing that vendor shall make a proper deed of the land ready to he delivered to purchaser, in case he pays the purchase money, or to purchasers under the decree, if the land he sold under it. 6‘</p> <p>In executing the second contract, the first agreement is to he resorted to for ascertaining the date from which the first instalment, is to hear interest. 7.</p>

On the 26th of May 1849 Nestor Kincheloe made complaint, that Mary, Moses, Aaron and Wesley Trace-well 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 Ms complaint.

John Slaughter late of York county, died in 1827, leaving four children, Harriet then the wife of Samuel Badkins, and Lucy, Margaret and Martha Slaughter; and by his last will and testament, after bequeathing three female slaves, named Sally, Mary and Lucy, and their future increase, to Robert M’Candlish, in trust as to the slave Sally for his daughter Harriet Badkins, as to the slave Mary for his daughter Margaret, and as to the slave Lucy for his daughter Martha, to be…

Debt, in the circuit superior court of Eauquier, brought in the. name of governor Eloyd, successor &c. at the relation of Stewart’s administrator, against Gibson late sheriff of Eauquier, upon his official bond. The action was founded on the statute, 1 Rev. Code, ch. 78, § 12, 13, p. 278-9.

Debt, in the circuit (sttperior court of Pittsylvania, by Baber' against Cook, Treadway, Edwards and Hoofman, upon a bond dated the 17th December 1832, for 500 dollars payable twelve months after date ; on which the declaration counted as the joint obligation of the defendants.

<p>1. The act of April 3rd, 1852, 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>2. 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. 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. If an absent defendant does not appear in the cause, there cannot bo 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 and a decree subjecting the attached effects.</p> <p>5. 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. 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>

In assumpsit by Wyatt’s ■ administratrix against Wynn, in the Circuit Superior Court of Dinwiddie, a summons * was issued, directed to the coroner * of the county, commanding him to summon the defendant to appear on the return day and answer the plea, dated the 11th May, 1835, and returnable the next rule day, namely, the first Monday in June.† The eoroner’s return was, “blot found, and a copy delivered at the defendant’s house to his son of lawful age,” without stating when…

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

Jordon Anderson the elder, late of Chesterfield, died in 1805, and by his last will and testament, after sundry devises and bequests to his sons, Jordon, Charles, James, Thomas and Nathan Anderson, bequeathed as follows — “I also give nry son Nathan the raising of my young negroes, namely Anaca’s increase, and Tom and Patt and Peter, Phillis’s children, and her future increase, not to be moved out of the state, or so far as to deprive them of their freedom.

<p>John Slaughter, late of York county, died in 1827, leaving four children, Harriet then the wife of Samuel Badkins, and Lucy, Margaret and Martha Slaughter; and by his last will and testament, after bequeathing three female slaves, named Sally, Mary and Lucy, and their future increase, to Robert M’Candlish, in trust as to the slave Sally for his daughter Harriet Badkins, as to the slave Mary for his daughter Margaret, and as to the slave Lucy for his daughter Martha, to be held by the trustee for the sole, separate and exclusive use of the several daughters, and at the death of each, the slave and her increase bequeathed for her use to be equally divided among her children then living, devised and bequeathed as follows: “I devise all the residue of my estate to Eobert M’Candlish, in trust my four daughters, Harriet, Margaret, Martha and Lucy, to be equally divided between them; the profits. for their sole, separate snd exclusive use, and at their death for their children then living, equally to be divided between them; that is to say, one-fourth to each of my daughters, and one-fourth to be divided between the children of such daughter at the death of such daughter; and if one of my daughters should die without having a child living at the time of her death, then I wish such daughter’s share to go the surviving daughters and grandchildren, the said children to take the share of the mother if living; to be held by the said trustee under the limitations before stated, as I do not wish the husbands of my daughters to have.any control over the property devised to my daughters.” And he appointed M’Candlish to be his sole trustee and executor; who took upon himself the trust and the executorship.</p> <p>After the testator’s death, his daughter Harriet Bad-kins died, leaving two infant children, John and Elizabeth Badkins; his'daughter Margaret married William Bacon, and then died leaving one infant child, Mary Bacon; his daughter Lucy married William Delk; and his daughter Martha married William Ware.</p> <p>M’Candlish took possession of the three slaves bequeathed to him for the us'e of Harriet, Margaret, and' Martha respectively, and all the residuary'slaves about sixteen in number; hired them out, and received the profits, to be appropriated according to the trust dedared by his testator.</p> <p>In May, 1837, William Ware and Martha his wife exhibited a bill in chancery, in the Circuit Superior Court of James City, against M’Candlish the trustee, Delk and wife, the infant children of Harriet Badkins and the infant child of Margaret Bacon; setting forth the will of the testator Slaughter, the agency of M’Candlish in the execution of the trust,-the number and names of the residuary slaves that had come to his hands, and the death of some of them; insisting, that they were entitled, to have the profits of the slave Lucy bequeathed to the trustee for the use of Mrs. Ware, and one-fourth of the net profits of the residuary slaves, accounted for and paid to them; complaining that the trustee denied the right of the plaintiffs-to more of those profits than was necessary for Mrs.. Ware’s own support, and contended, that the surplus-ought to be retained by him as part of his testator’s estate, and that the interest thereof ought to be divided among all the testator’s daughters and the children of those who were dead; and praying an account of the profits of that portion of the testator’s estate-which was bequeathed to M’Candlish for the use of Mrs. Ware, and a decree for the payment of the whole amount thereof to the plaintiffs.</p> <p>M’Candlish answered, that he had acted as trustee under his testator’s will, hired out the trust slaves from year to year, and annually credited the female plaintiff with the hire of the slave Lucy, and one fourth of the profits of the residuary slaves; that, out of this fund, he had educated, boarded and clothed her, and that there was a balance thereof in his hands, of 274 dollars with interest on 193 dollars from the 1st January, 1887, which he was always ready to pay when he could safely do so; that he had refused to pay this money to Ware, the husband of the legatee, because he was expressly excluded from benefit by the testator’s will, and the female plaintiff’ was an infant and could not give an acquittance; and that he conceived, that he ought to invest the surplus of the profits in question, over and above the support of the female plaintiff, in some fund for the benefit of her and her sisters; since if it should be paid to her husband he might use it at pleasure; and if she should die with-011£ ieavxng a child, the surviving sister and the children of the deceased sisters might be entitled to the very money now claimed by the bill. And he submitted the construction and effect of the testator’s will to the court.</p> <p>The defendants Delk and wife, in their answer, insisted, that the surplus of the profits of the female plaintiff’s portion, ought to be invested in order that the same might accumulate for the benefit of all the legatees, as M’Oandlish in his answer proposed; and they suggested that it should be invested in a young female slave, to be held as part of the trust subject for the benefit of all, especially as some of the residuary slaves had died, and this would be the means of replacing them.</p> <p>The court appointed a guardian ad litem, for the infant defendants. And the cause coming on for hearing upon the bill, the answers, and the exhibits, the court declared, that the surplus of the profits set apart by the testator’s will for his daughter Martha, over and above what was necessary for her support, now in the hands of M’Oandlish the executor and trustee, namely, the sum of 274 dollars with interest on 193 dollars from the 1st January, 1837, ought to be invested in the purchase of a young female slave, or some other profitable stock; and decreed, that the trustee M’Oandlish should invest that sum in the purchase of a young female slave, to be by him held as part of the daughter Martha’s portion, in all respects, according to the provisions of the testator’s will.</p> <p>On the application of Ware and wife, this court allowed them an appeal from the decree.</p>

This was a suit in equity by Alfred Becldey against W. Palmer, William Tyree and another. The bill was addressed to tbe 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 Fayette county, against the appellant and one Waite.

Trespass, in the circuit superior court of Goochland, by David Parrish against Humphrey Parrish, for taking and carrying away a slave the property of the plaintiff. Pleas, not guilty, and the statute of limitations.

Debt, in tbe Circuit Superior Court of Fauquier, brought in tbe name of Governor Floyd, successor, &c., at tbe relation of Stewart’s administrator, against Gibson late sheriff of Fauquier, upon bis official bond. Tbe action was founded on the statute, 1 Rev. Code, eh. 78, § 12, 13, p. 278-9.

Case adjourned from the circuit superior court for the county of Henrico and city of Richmond.

<p>In debt on bond for money payable twelve months after date against four obligors, declaration counts against them as joint obligors; but it appears, by defendants’ pleas and plaintiff’s replications, as well as by evidence at the trial, that in fact the bond was first-sealed and delivered by three of the obligors, of whom one was1 principal and the other two sureties; and that the fourth obligor' sealed and delivered it some time after the debt fell due, with a view in so doing to substitute himself as surety in place of one-of the original sureties; and this was done with the assent of theobligee, of the principal obligor, and of the surety for whom the-fourth obligor was to be substituted, but without the consent or knowledge of the other original surety. Held: The original obligation was the joint contract of the three obligors, but the-obligation-of the fourth obligor was his several contract, and therefore plaintiff cannot recover joint judgment against the-four obligors.</p> <p>Quere, whether the plaintiff has any, and if any, what remedy against-the three original obligors on the original obligation? and any,- and what, remedy on the several obligation of the last obligor?</p> <p>In an action against several defendants on a joint contract, plaintiff must be entitled to joint judgment against all, else he cannot have judgment against any.</p>

Case adjourned from the circuit superior court of Lee. Nix was indicted upon the statute 1 Rev. Code, ch. Ill, § 28,* for feloni-ously selling and delivering to one Jones a negro man as and for a slave, who was at the time of the sale and delivery free, knowing the neg-ro man *so sold to be free. He pleaded not guilty, and was put upon his trial at April term 1841.

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

The indictment against him contained seven counts. The first four of them were alike, only varying from each other in minute particulars, which it is unnecessary to mention, and charged him with having felo-niously forged, procured to be forged, and assisted in forging, the following order in writing, directed to Lewis Ruffner and company, to wit, “ Kan : Salines, Dec. 22nd 1840. Messrs.

Jordan Anderson the elder, late of Chesterfield, died in 1805, and by his last will and testament, after sundry devises and bequests to his sons, Jordan, Charles, James, Thomas and Uathan Anderson, bequeathed as follows: “ I also give my son hlathan the raising of my young negroes, namely Anaea’s increase, and Tom and Patt and Peter, Phillis’s children, and her future increase, not to be moved out of the state, or so far as •to deprive them of their freedom.

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.

<p>Trespass, in the Circuit Superior Court of Goochland, by David Parrish against Humphrey Parrish, for taking and carrying away a slave, the property of the plaintiff. Pleas, not guilty, and the statute of limitations. At the trial of the issues, the defendant offered to introduce his brother, Nelson Parrish, as a witness, to prove that the slave in question belonged to the estate of the defendant’s and the witness’s father, of whom the defendant was the administrator, and in that character claimed and had taken possession of the slave. And the witness being a distributee of the father’s estate, the defendant, to shew that he had now no interest in the slave, exhibited a deed from the witness to him, duly recorded in the County Court of Louisa, whereby Nelson Parrish, the witness, in consideration of 475 dollars, bargained and sold to Humphrey Parrish, the defendant, “ all his, Nelson’s, right, title and interest, of every kind, real and personal, in .and to the estate of their deceased father,” and warranted “ the same free from the claims of all persons whatever.” The plaintiff objected to the competency of the witness, because he had conveyed to the defendant his interest in the slave in question, if he was parcel of his father’s estate, and had warranted his title by the conveyance. And the objection was sustained by the court, and the testimony excluded: to which opinion the defendant excepted. Yerdict and judgment for the plaintiff for 800 dollars. The defendant applied to this court for a supersedeas, which was allowed.</p>

Armistead was indicted for stealing a horse the property of one Howard, tried, convicted, and sentenced to confinement in the penitentiary for five years.

Case adjourned from the Circuit Superior Court for the county of Henrico and city of Richmond.

Petition to be.let to bail. Semmes was indicted for the murder of professor Davis of the university of Virginia, in the .circuit superior court of Albemarle,, at its May term 1841,. arraigned, and pleaded not guilty.

Case adjourned from the Circuit Superior Court of Lee. Nix was indicted upon the statute 1 Eev. Code, ch. Ill, § 28,* for feloniously selling and delivering to ■one Jones, a negro man as and for a slave, who was at the time of the sale and delivery free, knowing the negro man so sold to be free. He pleaded not guilty, and was put upon his trial at April term, 1841.

The indictment against him contained seven counts.. The first four of them were alike, only varying from-each other in minute particulars, which it is unnecessary to mention, and charged him with having feloniously forged, procured to be forged, and assisted in-forging, the following order in writing, directed to-Lewis Ruffner and company, to-wit: “Kan. Salines,, Dec. 22nd, 1840. Messrs.

Petition for a writ of error. The hustings court of the city of Richmond imposed a fine of 20 dollars on Abrahams, for permitting a slave to go at large and hire himself out contrary to the statute 1 Rev. Code, ch. Ill, g 81, p. 442.

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 Little Cacapon creek; all the work and materials of which were to be approved by the engineer or agent of the said…

Upon a petition of a prisoner in custody on sundry indictments of felony, to be admitted to bail.

Petition for a writ of error to a judgment of the circuit superior court of Peters-burg. John Slaughter was there indicted for the murder of Joseph Pledge, tried, and convicted by the verdict of the jurj of murder in the second degree, and the term of his imprisonment in the public jail and penitentiary was thereby ascertained to be eighteen years.

Armistead was indicted for stealing a horse the property of one Howard, tried, convicted, and sentenced to confinement in the penitentiary for five years.

Petition for a writ of error to a judgment of the circuit superior court of Chesterfield. Richards was indicted of perjury, and pleaded not guilty.

<p>A prisoner in close jail upon an indictment for murder, applies to the Circuit Superior Court in term time, to be admitted to bail, and that court refuses to bail him;' and then he presents a petition to the General Court, praying to be let to bail. Held: The General Court has original concurrent jurisdiction with the Circuit Superior Court, and with the judge thereof in vacation, to admit the prisoner to bail for good cause to it shewn.</p> <p>It is good cause for admitting to bail a prisoner confined in close jail upon an indictment for murder, that he is laboring under a present painful, severe, and dangerous disease, caused by his imprisonment, and likely to be so aggravated by a continuance thereof as probably to terminate fatally.</p> <p>An infant prisoner being admitted to bail, his sureties were required to enter into the recognizance of bail, without his joining therein himself.</p> <p>The General Court, on the petition of a prisoner in custody' on an indictment for murder, to be let to bail on account of the ill state of his health, forbore, on the same account, to bring him before it by habeas corpus, heard his application for bail in his absence, and resolved that he ought to be let to bail; whereupon, the judge of the Circuit Superior Court wherein he was indicted, in vacation, admitted him to bail accordingly.</p>

This was an action on the case in the Circuit court of Shenandoah county by John Eeigle against William Farish & Co. stage owners, to recover damages for an injury sustained by the plaintiff by the upset- , ting of the defendants’ stage.

Petition for a writ oí error. The Hustings Court of the city of Richmond imposed a fine of 20 dollars on Abrahams, for permitting a slave to go at large and hire himself out contrary to the statute 1 Rev. Code, ch. Ill, § 81, p. 442.

<p>Prisoner examined in a Corporation Court, and sent on for trial in tbe Circuit Superior Court, on charge of aiding and abetting an officer of a bank to embezzle money and bank notes confided to his care to amount of 100,000 dollars or more, and of larceny of money and bank notes of the bank to the same amount; 24 indictments are preferred against him for aiding and abetting the officer to embezzle, and for larceny of, 24 several sums of the same money, at several times, as several and distinct offences; prisoner is brought to trial on one of the indictments, and acquitted; it appears, that the indictments are founded on a single criminal transaction, and though the acts charged in the indictments might be prosecuted as several offences, yet they might all have been included in one indictment. Held : The acquittal of the prisoner in one case, furnishes such a presumption of his innocence in the others, as entitles him to be bailed.</p>

Petition for a writ of error to a judgment, of the circuit superior court of Bedford.

Petition for a writ of error to a judgment of the Circuit Superior Court of Petersburg. John Slaughter was there indicted for the murder of Joseph Pledge, tried, and convicted by the verdict of the jury of murder in the second degree, and the term of his imprisonment in the public jail and penitentiary was thereby ascertained to be eighteen years.

Petition for a writ of error to a judgment of the circuit superior court of Rocking-ham.

Petition for a writ of error to a judgment of the Circuit Superior Court of Chesterfield. Richards was'indicted of perjury, and pleaded not guilty.

Jesse Cornwell of the county of Prince William, died in 1805, leaving a owill, which does not seem to have been recorded until August 1813. By his will he gave to his wife Constance Cornwell, the whole of his estate whilst she remained his widow. But if she should marry again, or upon her death without marrying, his whole estate, after the payment of his debts, was to be divided equally amongst his children: And he appointed her and his son Gustavus his executors.

<p>The courts having a discretionary power to direct juries de medietate linguae, or not to do so, in cases where aliens are parties; in a prosecution for murder, the mere circumstance of the prisoner being an alien and ignorant of the language, is not sufficient to require the court, in the exercise of a sound discretion, to direct such a jury.</p>

Petition for a writ of error to a judgment of the Circuit Superior Court of Rockingham.

The first of these cases was a suit in equity in the Circuit court of Hanover county, instituted by Betty and others suing in forma pauperis against William C. Smith in his life time, and revived against his personal representative, to recover their freedom.

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 Francis Cannon.

This was a bill by Seaman and others, creditors of Benjamin L. 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 answered, 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 Susan 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 ber 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 1851 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…

William A. Powell was indicted for forgery, and for uttering a forged paper, in the Circuit court of the city of Eichmond. The indictment' charged that Powell, having in his possession a certain writing, which is set out, and is in form a negotiable instrument, made by himself and payable to Eoach & McGuire, did feloniously forge on the back thereof the endorsement of the name of the firm of John & George Gibson, with intent to defraud.