Volume 12 — Virginia Reports

In December 1844 James Young and Jordan Floyd were inspectors of tobacco at Oaks ware-house in the city of Petersburg ; and Robert Leslie, Caroline Macfarland and D. B. Tennant or Ann Brydon were the owners of the ware-house.

John Hilton, by his last will and testament, dated April 1817, after directing that his wife’s dower should he “ allowed” agreeably to the laws of Virginia, devised and bequeathed as follows—“As I have given to my son William £233. also to my daughter Elizabeth £ 186. it is my desire, that the above sums shall be deducted from their parts of rmj estate when a division shall take place among all my children that I may have at my decease.

This was an appeal, by the mayor of the city of Richmond, from a judgment of the Circuit court of the city of Richmond, in a case of prohibition. The facts are stated in the opinion of Judge Moncure.

This was an action of debt in the Circuit court of Jefferson county, brought by Sel-den, Withers & Co. against John P. Ham-tramck as maker, and Alexander R. Boteler and others as endorsers, of a negotiable note for two thousand dollars.

<p>JV. and J. Dick, A. Moore and W. Davidson are partners in house of Dicks, Moore Sf co. carrying on business under that firm in Virginia, where three first named partners reside, the other W. D. residing at London, but partnership has no house established at London under any name; S. draws a bill on W. D. alone, but expressed in body of the bill, to be “ on account of D. M. co.” W. D. writes a general acceptance on this bill, in his own name, not in that of firm of D. M. fy co. and the bill is afterwards dishonoured, and returned to drawer: Held,</p> <p>1. This was W. D.’s individual acceptance; D. M. fy co. are not parties to the bill, and not liable to S. by force of the bill itself.</p> <p>2. And though if & had proved, that the money for which the bill was drawn, was due on a contract with D. M. fy co. they might be held liable upon such original contract, yet, failing to prove such original contract, he has no claim against them on any ground.</p> <p>Plaintiff in equity sets up claim against a mercantile house, and only question put in issue is, whether the house is liable, or only an individual member of it; plaintiff obtains a decree against the house; and, on appeal, decree reversed, because, in opinion of appellate court, there is no proof of the liability of the house, but only of the individual partner: the appellate court will not remand the cause as to all the parties, in order to give plaintiff opportunity to adduce further proof of liability of the house, but will dismiss the bill as to the partners held not liable, and remand the cause for proceedings against the partner only who is liable.</p> <p>Nor will the court retain the partners, so held not liable in the actual state of the case, still in court, for the purpose of having a settlement of the partnership accounts, and having any balance found due thereon to the partner who is liable, he being an absent defendant, applied to satisfaction of plaintiff's demand; the bill not having been framed with that view, andfnot having asked such settlement of the partnership accounts.</p> <p>In a suit in chancery against absent defendants, the only proof of publication of order calling absentees before the court, was the certificate of the printer not verified by oath; but no exception was taken for want of proof of publication, and court declaring that plaintiff had proceeded regularly against the absent defendants, gave Mm a decree: upon appeal from the decree, neither party can object, in the appellate court, to the want of proof of the publication; and especially the plaintiff, to whose fault the irregularity was imputable, cannot ask the reversal of Ms own decree on such ground.</p> <p>Decree against surviving partners and executor of deceased partner of mercantile house, from which defendants appeal, and pending appeal one of the surviving partners dies; the death is not suggested, and court proceeds to hear cause, reverses the decree, and dismisses plaintiff’s bill as to the surviving partners; proof is afterwards offered of the death of one of them before the hearing, and appellee moves to set aside decree of reversal, for that cause: motion overruled, because there was still a surviving partner before the court, who represented the whole interest, and because appellee cannot complain of a decree in favotu- of the deceased party.</p>

William Carter died in 1817 intestate, leaving- a widow and ten children; and his son in law John H. Knight qualified as administrator upon his estate. In 1818 the widow and all the children, except Mrs. Knight, filed a bill in the County court of Nottoway for an allotment to the widow of her thirds of the estate, and a distribution of the residue among the children.

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

At the April term 1820 of the Circuit court of the District of Columbia for the county of Alexandria, George Suckley, surviving partner of Holey & Suckley, recovered a judgment against Richard Libby for the sum of eleven thousand and seventy-one dollars and thirty-two cents, with interest from the 19th of June 1819; upon which an execution was issued in the following November, and was returned “no property found.” This judgment was upon a debt which had accrued since the…

<p>Elizabeth, the widow of Hezehiah Pigg, married a second husband, Adin Gray, who died in 1816, and by his will gave his whole estate, real and personal, to his wife for life, with power to dispose of one moiety thereof, at her death, in any way or manner she should think proper. She died in 1827, and by her will, reciting the will of her second husband, and the power thereby given her, to dispose, at her death, of a moiety of his estate, she gave and disposed of the moiety thereof to her son, the appellant Clement Pigg, and gave him the whole of her own estate, and appointed him her executor. She had many grandchildren, the descendants of two other sons. The appellee Corder married Anne Pigg, the only daughter of mrs. Gray, by her first husband; and she died before her mother.</p> <p>In 1828, Corder exhibited a bill in the superior court of chancery of Lynchburg, against Clement Pigg the executor and sole devisee and legatee of mrs. Gray, and others her heirs at law and next of kin; wherein he alleged, that he having married Anne Pigg, the only daughter of mrs. Gray, and having with his wife and family removed to and settled in Kentucky, where he was doing well, mrs. Gray, in October 1816, wrote him a letter (which had been lost or mislaid, but its contents could be proved) wherein she promised or offered, that if he would sell out his property in Kentucky, remove back to the county of Pittsylvania, Virginia, and settle there beside her, she would give him, Corder, and his family, one third of the whole estate which she at her death would have a right to dispose of; that in consequence of this assurance, Corder sold his property in Kentucky at a sacrifice, removed with his family back to Pittsylvania, and settled there near mrs. Gray; that mrs. Gray, in part compliance with her promises, laid off 200 acres of land for him, built a house upon it, and put him in possession thereof, but did not make him a conveyance of the same; that she afterwards, brought an ejectment against him for the land, which was pending at her death, and was still pending. That shortly before Corder removed from Kentucky, he being in Virginia, and on ■ a visit to his mother-in-law mrs. Gray, she gave him a female slave named Charity, who had since had two male children; that mrs. Gray intended to deliver him possession of the woman Charity, when he should return with his family to Pittsylvania, and to retain till then the possession for him; but that, in fact, she never delivered the possession of the slave to him; he had demanded the slave of mrs. Gray, but she refused to deliver her, and retained the possession of her and her increase as long as she lived. And that mrs. Gray died many years after these transactions, and by her will gave her whole estate, and all which she had power to dispose of to her son Clement Pigg, and appointed him her executor. And the bill prayed specific execution of mrs. Gray’s alleged promise or contract of October 181G, above stated; a decree for one third of her estate, and of all the property she had a right to dispose of, and for the slave Charity and her increase, and the profits thereof; and general relief.</p> <p>Clement Pigg (the only defendant who had any interest in the subject), in his answer, controverted the facts alleged in the bill, touching the promise or contract of mrs. Gray of October 1816, and insisted, that, even if the facts were true, Corder was not now, under the circumstances, entitled to the relief he prayed; that his neglect to assert his claim during so many years while mrs. Gray was living, and the change of circumstances (his wife being now dead), were decisive objections to specific execution of such a contract. And he relied on the statute of limitations as a bar to the claim to the slave Charity and her increase.</p> <p>The cause was transferred, in 1831, to the circuit superior court of Pittsylvania. The letter of mrs. Gray of October 1816 mentioned in the bill, not being produced, nor its contents satisfactorily proved, the court, on a hearing in June 1832, dismissed the bill. But Corder, having afterwards found that letter, filed a bill of review, by leave of the court, exhibiting the letter; and the controversy was renewed.</p> <p>The document now exhibited, and the principal and the only written evidence of the contract alleged in the bill, was a letter of mrs. Gray, dated the 19th October 1816, addressed “to Shadrach Corder and Nancy his wife,” in the following words :</p> <p>“ Honored son and daughter—I am glad to embrace opportunity of writing a few lines to you, to let you know, that we are all well at present, thanks be to God for his blessings; hoping that you are enjoying the same state of health. Dear daughter, I want to inform you, that when mr. Corder was in here last summer after the negro girl Charity, that I give her, that he and I made a bargain for him and his family to remove back from the state of Kentucky. I have promised him, that if you did move back here, that I would give you 200 acres of land, and have a house built on it, and the third part of all my estate, as my husband has died, and has left me one half of the estate to do with as I think pro'per. I am to give mr. Corder all my hands and plantation, with two mills, as long as I live; and all he can make over and above supporting the family, is to be his own. Also, my dear daughter, I don’t want you to regard your property you have gathered in that part of the world—but I would part with it on the best terms I could, and move in here—I have a plenty, and you shall have it; and my house shall be your home as long as you live. Still I want you to build on your own land that I have given you. Will write you another letter in full in a short time. No more at present, but still remains your loving mother till death. (Signed) Elizabeth Gray.”*</p> <p>This letter was written for mrs. Gray by one Hutchings, by whose deposition it was identified; and he deposed that it was written at, and agreeably to, her request. It was proved, that she was extremely illiterate. Another witness, named Lovell, deposed, that Corder, not long after the date of the above letter, shewed him two letters from mrs. Gray; one of which (now said to be lost) purported to explain her views more fully than the letter of the 19th October 1816. That other letter was never produced, nor did Corder give any account of it, except that he said it had been lost.</p> <p>The depositions of several witnesses, examined on behalf of Corder, were filed, to prove declarations of mrs. Gray, sometimes in Corder’s presence, sometimes when he was absent. These declarations of mrs. Gray, as stated by the several witnesses, were somewhat variant from each other: they, however, amounted to this, that mrs. Gray admitted, that she had written the letter of the 19th October 1816 to Corder and his wife; that she had induced Corder to sell off his property in Kentucky, and come back with his family to Pittsylvania, by promising that she would give him possession of her plantation and slaves, and put the whole under his management, and let him take to his own use whatever he could make over and above the support of his and her family; that it was her intention to give Corder and his wife one third of her estate, but so to give it that Corder should not have a right in it (for fear that if she gave him such right, he might sell it, and go off to the west again), and yet he should enjoy the use of it during his life ; that she intended to lay off 200 acres of land, and to aid Corder in building a house upon it, but she did not intend to vest the right in Corder, “ so that he could make way with it,” but he should have his lifetime in it, and at the death of Corder and his wife, she intended to give it to their son Francis Corder.</p> <p>It was proved, that Corder and his wife left Kentucky, and returned to mrs. Gray’s house, in January 1817, and lived for about a year with her; that she at first put all her property into Corder’s hands, and gave him the entire management of it, and Corder made one crop; that, in the mean time, mrs. Gray had 200 acres of land laid off, and aided Corder in building a house upon it; that after the expiration of about a year, Corder and mrs. Gray disagreed; and then he and his family removed from mrs. Gray’s house to the house which had been built on the 200 acres of land that had been laid off for them, and Cordel' occupied that house and enjoyed the use of the 200 acres of land till his wife died; after which mrs. Gray brought an ejectment for the land, which was pending when she died, and still pending when Corder brought this suit.</p> <p>It was proved, that a conveyance of the 200 acres of land had been prepared to be executed by mrs. Gray, but she said “ she had willed it” to Corder and his wife “ in the same way, and it was not necessary to sign the deed.”</p> <p>This 200 acres of land was about one half of the land of mrs. Gray’s second husband Adin Gray, of which by his will she was authorized to dispose of a moiety in fee.</p> <p>All the property which Cordel' had in Kentucky, consisted of two wagons and teams, about thirty head of cattle, and a stock of hogs. He retained one wagon and team, with which he removed his family to Virginia ; the other wagon and team, and his stock of cattle and hogs, he sold in Kentucky, but there was no proof that he sold them at less than their value.</p> <p>A witness named Sally Owen, examined for the defendant, deposes, that she was present at a conversation between the plaintiff Corder and mrs. Gray, when he was at her house on a visit previous to his removal from Kentucky: in which mrs. Gray told Corder to tell his wife (her daughter), that mr. Gray her deceased husband had given her his whole estate during her life, and one half of it to dispose of as she pleased at her death; and that if she (the daughter) would remove back to Pittsylvania, her (mrs. Gray’s) house should be her home; that she would employ him (Corder) as her overseer, and all above the support of her family should be his as long as they could agree, and if they could not agree, she would build her (the daughter) a house on some part of her (mm. Gray’s) land, so that she should have a home during her lite ; and that she intended to give her (the daughter) one third part of her estate for her and her heirs, but that Corder himself should not be one dollar the better thereby, as he had spent too much of her money already. That mrs. Gray also desired Corder to tell his wife, not to regard disposing of her property, but to come as light as possible, as she (mrs. Gray) had a plenty here, and would furnish her.</p> <p>It appeared in proof, that mrs. Gray had lent Corder 450 dollars to pay a debt he owed, for which he promised her security: that she afterwards demanded the money, and brought a suit for it, and that this claim was adjusted between them by arbitration.</p> <p>It appeared, that Corder had children by his wife; hut whether those children or any of them survived her, did not appear.</p> <p>With regard to the woman slave Charity, it was proved, that mrs. Gray admitted, at the time of Corder’s visit to her previous to his removal from Kentucky, that she had given him, or given his wife, the woman Charity, and told him he was at liberty to take her to the west with him; but she said, that as he had concluded to return and settle in Pittsylvania, it was unnecessary to incur the expense of carrying her to Kentucky ; and, therefore, he did not take her away. But possession of this slave was never, at any time, actually delivered to Corder or to his wife; on the contrary, mrs. Gray retained the possession, without interruption and without any claim set up by Corder. The woman Charity had two male children after the alleged gift to Corder, one of whom was sold by mrs. Gray in her lifetime ; of Charity, and her other child, mrs. Gray held possession as long as she lived, and died in possession, and they came to the hands of the defendant as executor and legatee of his mother. The defendant had sold Charity, but still held one of her children.</p> <p>On the hearing in 1837, the circuit superior court decreed, that the defendant should convey to Corder for his life, the 200 acres of land above mentioned, and should deliver to him the child of .Charity which he yet held, and render an account of the prices for which the woman Charity and her other child had been sold, and the dates of the sales thereof.</p> <p>Pigg applied to this court for an appeal from the decree ; which was allowed.</p>

In January 1853 James S. Penn filed his bill in the Circuit court of Nelson county, in which he alleged that Floyd Iy.

<p>Upon the construction of the statute of March 19.1832, “ authorizing suits against branches of banks in this commonwealth Held, a suit cannot be maintained against the president and directors of the branch; the suit must still be brought against the principal bank by its corporate name.</p> <p>And where a suit is brought against the president and directors of a branch bank, this is not a mere misnomer, which must be pleaded in abatement, but is a bar to any recovery; and though a verdict be founded upon the general issue pleaded, the error is not cured by the statute of jeofails.</p> <p>In such case, however, the defendants cannot have judgment for costs; for they can no more have judgment against the plaintiff, than he can have judgment against them.</p>

This is a controversy concerning the right to administer upon the estate of a decedent. At the October term in the year 1853 of the County court of Henrico, a paper writing purporting to be the last will and testament of James O’Brien deceased, and bearing date on the 16th of June 1846, was duly proved and ordered to be recorded as the true last will and testament of the deceased.

Jesse Williamson took administration of the estate of George M. Williamson, on the 2d November 1829, in the county court of Greenesville, with Benjamin Gowing and nine others, his sureties, and… Held: that there was such a record as that set forth in the defendants’ plea, and gave judgment for the defendants. The relator, in the name of the plaintiffs, applied to this court for a supersedeas to the judgment; which was allowed.

In February 1850 an action of ejectment was instituted in the Circuit court of Hen-rico by Caroline V. Clarke, Emily W. Harris, David M. Branch and Sarah E. his wife, ag-ainst Richard Reins, for the recovery of eight half acre lots of land in the town of Sydney, near Richmond. The plaintiffs claimed the lots of *land as heirs at law of Benjamin James Harris deceased. The female plaintiffs were his children. The issue was regularly made up at the May term following.

Robert Poole, late of the borough of Norfolk, by his last will and testament, devised and bequeathed as follows : “I give to Venie, a… Held: (and the accounts upon which the decrees were founded, were stated on the principle), that the wife was entitled to only a third of the surplus, after payment of the testator’s debts, of the personal estate exclusive of the emancipated slave and of the two slaves and other chattels specifically bequeathed to her ; and that, as to her…

^Previous to the 2nd day of February 1835, Thomas O. Ta37lor departed this life, having1 first made his will, which was duly admitted to probat in the County court of Powhatan. Held: conveyed and assured to the same trusts, and with the same powers, charges, conditions and exemptions as is herein declared in relation to the property of which I shall die possessed.

Josiah Robertson died in 1810, having made his will, which was duly admitted to probat. By his will he gave to his wife Catharine Robinson, the whole of his estate, for her life or widowhood; she paying his debts.

<p>. , * In trover against adm’r of plaintiff’s father, plaintiff claims title to slaves under a parol gift from his father, and possession under the alleged gift; there is no direct proof of the gift, but only proof of such a temporary possession held by the plaintiff, as may as well be referred to a loan as to a gift from the father, and, under the circumstances, more probably referrible to a loan than to a gift: Held, this proof is insufficient to maintain the title.</p> <p>In a bill of exceptions to a judgment of a court overruling a motion for a new trial, the facts proved at the trial are stated and certified by the court; upon appeal from the judgment, it appeal's that the verdict is an erroneous inference from the facts stated; therefore, judgment reversed, and a new trial awarded.</p> <p>And where the facts proved at the trial, are stated and certified by the court that tried the cause, and the question is whether the verdict conforms with the facts stated, and there is no question as to the weight or credit of evidence, the appellate court should judge of the correctness of the verdict upon the facts stated, uninfluenced by the opinion of the jury, or of the court that sanctioned the verdict; Tucker, P. paulo dissentiente.</p>

This was an action on the case in the Circuit court of Amelia county, by Frances Epes against Robert Harvey and James Hunter, partners, and contractors on the Richmond and Danville railroad. The declaration contained two counts.

<p>Debt, in the county court of Frederick, by Cartel' against Jane Raynolds, Thomas Raynolds and James Wigginton, on a bond executed by the defendants to the plaintiff as administrator of Jackson, for 200 dollars. Plea, the statute of usury. The defendant Jane Raynolds died pending the action, and it was prosecuted against the surviving defendants. The parties agreed, that the following evidence should be taken and received as a case agreed between them.</p> <p>1. The bond on which the suit was brought; which was a single bill under seal, executed by Jane and Thomas Raynolds and Wigginton, to Carter as administrator of Jackson, dated the 1st January 1827, for 200 dollars, payable twelve months after date, with interest from the date.</p> <p>2. The evidence of E. Milton; who proved, that some five or six years prior to May 1830, he as deputy sheriff had executions in his hands against Thomas Raynolds : that Raynolds told him he expected to get some money (200 dollars as the witness understood from Raynolds at the time) from Jackson, the plaintiff’s intestate, for the use of which he Raynolds was to put in pledge with Jackson a man slave named David (as well as the witness recollected, that was his name) whose services were to go for the interest of the money: that shortly after this conversation between the witness and Raynolds, the witness met with Jackson, and asked him whether Raynolds had got the money from him which he expected to get; Jackson answered, that he had not at that time received it, but he intended to let Raynolds have it, so soon as he should put into his hands a man slave named David as a pledge, whose services, Jackson said, were to go for the interest of the money: that the witness told Jackson he had better not make such an arrangement, for it would be considered an usurious contract ; Jackson replied, that he would evade the law by taking a bill of sale for the slave ; and the witness told him he could not evade the law by any possible means: that sometime after this conversation, another conversation took place between the witness and Jackson; in which Jackson told him, that he had ran the risque, and had let Raynolds have 200 dollars, for which he had a man slave whose labour and services were to go for the interest of the money: that the witness acted as deputy sheriff, for many years, in the part of the country where Raynolds lived, and had in his hands many executions against him, indeed was never without one ; that in all these cases Raynolds's mother Jane became his surety; the debts were always paid by Raynolds, but how he got the money (except the 200 dollars above-mentioned) the witness did not know.</p> <p>3. The evidence of Benj. Wigginton, the subscribing witness to the bond on which the suit was brought; who proved that the bond was executed by the obligors at the house of Thomas Raynolds on the day it bears date : that the plaintiff Carter (Jackson's administrator) was also present when the bond was executed: that it was mentioned by Carter, and by the obligors in Carter's presence, that the bond was executed to redeem a man slave named Milford, who had been in the possession of Jackson for about two years as a pledge for the money for which the bond was given: that the witness was a brother-in-law of Raynolds, lived near him, and was frequently at his house ; and he was sure, that no other slave of Raynolds but the man Milford was in Jackson's possession, between 1825 and the' first of January 1827; Raynolds had a slave named David, who lived at home during all that time, and was constantly in Raynolds's own service : that Milford was given up to Raynolds at the-time the bond was executed; and that the services of this slave, while he was with Jackson, were worth 50 or 60 dollars a year; he was young, healthy and a good farm hand.</p> <p>4. The evidence of William Wigginton ; who proved that there was a man slave named Milford belonging to Raynolds in the possession of Jackson between the years 1825 and 1827; that he was the only slave of Raynolds that Jackson had during that time; that Raynolds had a slave named David, but he remained at home in the service of Raynolds himself; and that the services of the slave Milford were worth from 50 to 60 dollars per annum, at least 50 dollars.</p> <p>- And the parties agreed, that the law arising upon the above evidence should be adjudged by the court according to the very right of the case without regard to the pleadings; so that if the court should adjudge the law of the case to be in favour of the plaintiff, judgment should be entered for him for the debt, with interest according to the terms of the bond and costs; and if for the defendants, judgment should be given for them.</p> <p>The county court held that the law was for the plaintiff, and gave him judgment: and, upon a supersedeas, the judgment was affirmed by the circuit superior court of Frederick. And then the defendants applied to this court for a supersedeas; which was allowed.</p>

On the 5th June 1821, Robert Birchett of Petersburg, assigned to Martin Thayer a bond of William Birchett for a large amount, and a deed of trust executed by the obligor mortgaging property to secure the debt. The assignment was made under a contract between the parties, which appeared by two instruments after-wards executed, one by Thayer, and the other by S, D. Townes and Charles Webb, auctioneers of Petersburg. 1.

John Redd was a wealthy farmer living-in the county of Henry. Held: that under the second clause of the will of John Redd, the plaintiff could only claim the land tying between the fence and the spring branch; and dissolved the injunction, and dismissed the bill. Whereupon the plaintiff obtained an appeal from one of the judges of this court.

Deft, in the circuit superior court of Spotsylvania, by Milne and wife against Ross for £ 500. sterling. The declaration was in these words: “ Alexander Milne and Jane Milne his wife complain of James Ross in custody &c. of a plea, that he render to them the sum of £ 500. sterling money, which he owes to and unjustly detains from them.

Peter Zeluff, a citizen of the state of New York, died some time previous to September 1837, leaving- a *widow and three infant children. By his will he gave the principal part of his estate to his wife during widowhood; and if she should marry she was to have a child’s part; remainder to his children. At his death he owned a small tract of land in the county of Nansemond in the state of Virginia: And Edwin Godwin qualified here as his administrator.

Upon the petition of Hunter to the comity court of Campbell, setting forth that he was the owner in fee simple of the lands on both sides of Archer’s creek in that county, on which he wished to erect a water grist mill and a saw mill, and a dam across the stream, the county court, in pursuance of the statute concerning mills (2 Rev. Code, ch. 235. 1. 2. 4. p. 225-6.), at January term 1837, awarded a writ of ad quod damnum, commanding the sheriff to summon twelve good and…

This was an appeal from the judgment of the Circuit court of Richmond county, affirming the sentence of the County court admitting to probat the will of John Cun-diff. The only question in the cause was as to the due execution of the will. The paper was propounded for probat by James T. Yerby, one of the nominated executors, and its probat was opposed by Addison Y. Beane and his wife.

<p>Joseph Cocke being entitled to the remainder in fee in 141 acres of land in Hanover, and to the remainder likewise in three slaves, expectant on a life estate therein then held by his mother, by deed of trust, in his lifetime, conveyed his remainder in both the land and slaves to Philip Winston, upon trust to secure a debt of 318 dollars with interest to William Cocke; and being thus entitled to the equity of redemption of the remainder of the land and slaves, and some .personal chattels in possession, of trivial value, he died in 1823. He left no children or other issue. He was, however, a matried man; but his wife had separated from him many years before his death, and was then still living apart from him ; though, it seemed, the separation was imputable to his own misconduct, not to any fault of hers. He left a will, in which he made no provision whatever for his wife; but, after charging his whole estate with his debts, he devised and bequeathed the same, subject thereto, to his nephews and nieces, thirteen in number. And Joseph Wingfield, an executor named in the will, took upon himself the trust.</p> <p>In 1824, after Cocke’s death, but before the death of his mother the tenant for life, his remainder in the 141 acres of land was sold by Winston, the trustee, under the deed of trust to secure the debt of 318 dollars to William Cocke, upon the requisition of the creditor’s administrator, who himself became the purchaser at the sale. The purchase money exceeded the debt; the bond for which was taken in by the trustee, but a large balance of the purchase money remained unpaid.</p> <p>Cocke’s mother, the tenant for life, died in 1827, and upon her death, the three slaves came to the possession of his executor Wingfield.</p> <p>Cocke’s widow married Thomas Philips, whom she also survived. She never made any renunciation of her first husband’s will; and never during her first widowhood, or during the life of her second husband, set up a claim to any provision out of her first husband’s estate, real or personal.</p> <p>But in 1835, after the death of Philips, she exhibited a bill in chancery in the circuit superior court of Hanover, against Wingfield the executor of her first husband Cocke, his devisees and legatees, Winston the trustee, and the purchaser of the 141 acres of land under the deed of trust; wherein she claimed dower of that land, and the share allowed her by law of Cocke’s personal estate ; and prayed an account of Wingfield’s administration, and a decree for her dower of the land, and for her distributive share of the personal estate.</p> <p>The defendants, in their answers, admitting that the plaintiff was the relict of Cocke, denied, nevertheless, that she had any claim to dower of the land, her husband never having been seized of any estate in possession therein during the coverture, but only entitled to an estate in remainder; and as she had never renounced his will, they also denied, that she had any right to a distributive share of his personal estate ; or, if she ever had a just claim thereto, they insisted that she ought not, after such a lapse of time, to be allowed now to assert it.</p> <p>The court directed Wingfield to render an account of his administration of Cocke’s estate before a commissioner; and the account was accordingly stated and reported; by which it appeared that there was a balance in the executor’s hands, of 1477 dollars, principal and interest, of which all but 113 dollars arose from the hires of the three slaves, accrued since 1827; and that only two of the slaves were now living.</p> <p>It further appeared, by evidence, that of the purchase money of the land sold under the deed of trust, after paying the debt of 318 dollars with interest to William Cocke for which it was mortgaged, there remained still due from the purchaser, a balance of 909 dollars, principal and interest.</p> <p>Upon the hearing, the court declared, that the plaintiff was entitled to one third of the slaves of her first husband Cocke’s estate, to be held for her life, and to one half of his other personal estate in absolute property; and decreed, in.part, that Wingfield the executor should pay her one half of the balance reported to be in his hands; but as to the two slaves which now remained, as they were not divisible in kind, the court, for the present, made no decree as to them. And the court ordered, that the purchaser of the land should deposit the 909 dollars, the balance of the purchase money thereof yet due from him, in the bank of Virginia, subject to future order; and, in case he should fail to deposit the same within sixty days from the date of the decree, that the land should be sold by a commissioner appointed for the purpose, and the proceeds be brought into court.*</p> <p>Upon the petition of the defendants, Wingfield the executor, and the devisees and legatees, oí Cocke, this court allowed them an appeal from the decree.</p>

This was a suit in equity in the Circuit court of Pittsylvania county, instituted by Daban Green and others, heirs and distrib-utees of John T. Crain deceased, to set aside a paper which had been admitted to probat as the will of said Crain. The defendants were his devisees and the administrator with the will annexed. The court directed an issue devistavit vel non.

This was a bill filed in November 1842 in the County court of Accomack, by Lewis J. Snead and Thomas Custis, for partition of a tract of land descended to the children and heirs of Malinda Custis, of whom Thomas Custis was one, and had sold his share to Snead. It also prayed partition of a tract of land and slaves descended to the children and heirs of William Custis •of Henry. William Custis was the husband of Malinda, and their children were the heirs of both.

Upon a bill in chancery, exhibited in the circuit superior court of Spotsylvania, by Mary Ann Calhoun, widow of John Calhoun deceased, against James Whealley’s heirs, claiming dower of real estate in Culpeper then held by them, the state of the case, collected from the pleadings and proofs, was as follows— By articles between James Wheatley and John Calhoun, dated the 19th October 1822, it was agreed, that the parties should purchase jointly a parcel of about 557 acres of…

At the March term 1853 of the County court of Henrico, Isaac A. Goddin moved the court to record the report of the surveyor of the county in relation to a lot of land sold by the sheriff; for the nonpayment of the tax upon it. The lot was sold as the property of Matthew Delaney; and he appeared and opx)osed the motion. The court overruled the motion, and gave Delaney a judgment against Goddin for his costs.

This was an action of ejectment in the Circuit court of Gloucester county, brought by Skaife W. Pryor against Philip Taliaferro, and upon his death, revived against his heirs. The plaintiff claimed as only child and heir of John C. Pryor, who was the son of Christopher Pryor.

The first James River Company was incorporated by an act of assembly passed at the October session 1784; which, reciting “ that the clearing and extending the navigation of James River, from tide water upwards to the highest parts practicable on the main branch thereof, would be a work of great public utility,” and that “ it might be necessary to cut canals, and to erect locks or other works on the sides of the river,” incorporated a company by the name of The James River…

On the 19th of April 1854, %. S. & J. J. Yarnall presented a petition to the judge of the Circuit court of Ohio county for a mandamus to George W. Sights, clerk of the city of Wheeling, to compel him to issue to them a license to keep an ordinary at the “Sprigg house” in said city. .A mandamus nisi was issued, returnable to the first of May following; at which time Sights made his return, setting out the various statutes of the state and ordinances of the city bearing upon…

*Tn March 1854, Samuel D. Booker applied to the judge of the Circuit court of Mecklenburg for a mandamus to compel the directors of the branch of the Exchange Bank at Clarkesville to admit him to the office of president of said branch bank. The facts are as follows: The annual meeting of the stockholders of the Exchange Bank is held in Norfolk on the first Monday in May of each year.

This was an action of debt in the Circuit court of York county, by the Exchange Bank of Virginia against George W. South-all’s administrator, upon a negotiable note for the sum of eight thousand eight hundred and sixty dollars, made by one Richard Coke, junior, and endorsed by Southall; and discounted by the Exchange Bank. At the August rules 1852, the declaration was filed, and a common order taken.

<p>Testator, by his will, devises 2000 acres of land, and bequeaths twenty-eight slaves, and sundry bonds amount 'not mentioned, and- one fourth of proceeds of sales of land not specifically devised, to his granddaughter Maria and five other children of his son John deceased, to be divided among them; and that one fifth part of the general residuum of his estate shall be equally divided among the same persons; and, by codicil provides, that Maria’s part shall be settled to her separate use for life, remainder to her children if any, and if none, to the use of the other children of her father; after which, on the marriage of Maria, testator, by marriage contract, gives her 400 acres not parcel of the 2000 acres of land, nine slaves parcel of the 28 slaves named in the will, and 1500 dollars in money, all to be settled on her for her use and the heirs of her body, but in case of her death without issue, or in event of such issue as she may have not arriving to 21 years of age or marrying, then to the heirs of her father: Hem,</p> <p>1. All the legacies of personal property to Maria, were adeemed or satisfied by the gift to her in the marriage contract.</p> <p>2. The devise of land to her is also adeemed or satisfied by the landed portion given her by the contract; dissentiente Tucker, P.</p>

This was a suit in equity in the Circuit court of Hanover county, instituted by Philip B. Winston against Joseph Starke and’ others. The case is stated by Judge Samuels in his opinion. The Circuit court dismissed the bill: -And Winston thereupon applied to this court for an appeal, which was allowed.

This was a bill in the Circuit court of Powhatan county by Blair Burwell to enjoin Willis W. Hobson from building a dike upon his land along the margin of Deep creek, in tljat county. The pleadings and proofs make the case as follows: Joseph Hobson, under whom both parties claim, owned a large tract of land in the county of Powhatan, lying on both sides of Deep Creek.

Robert Gibson, having been indicted for murder in Virginia and fled from justice, and sojourning in Georgia, by letter of attorney dated the 1st April 1815, constituted Christopher Strong his… Held: that the conveyance from Thomas to Robert was fraudulent as against Thomas's creditors, and ordered that High Hill, and sundry other property, should be sold to pay the debt due to White Sf co. And a copy of that decree was filed in this cause.

Joseph Pierce, of Westmoreland county, died in 1798, leaving a will, which was duly admitted to probat. By one clause of his will he gave a negro woman and her four children to one of his daughters. In another clause he says he has set at liberty five ne-groes whom he names, and he wishes that they shall continue so. He then names five other negroes, who he says he cannnot think of leaving slaves for life; and therefore they are to be at liberty at the end of five years.

James Hamlett, the elder, late of Charlotte, who died in 1819, by his will, first devised and bequeathed as follows : “ My desire is, that my beloved wife Jane shall enjoy uninterrupted possession of… Held: worth about 2000 dollars: that the land devised to his two grandsons, Thomas and James Hamlett, ivas about 450 acres, worth about 2800 dollars: and that the land devised to his two grandsons, Drury and Samuel Major, was worth about 1450 dollars. 2.

James Hamlett, the elder, late of Charlotte, who died in 1819, by his will, first devised and bequeathed as follows: “My desire is, that my beloved wife Jane shall enjoy uninterrupted possession of… Held: worth about 2000 dollars: that the land devised to his two grandsons, Thomas and James Hamlett, was about 450 acres, worth about 2800 dollars: and that the land devised to his two grandsons, Drury and Samuel Major, was worth about 1450 dollars. 2.

In November 18S2, Martha E. Snoddy obtained an injunction to restrain the sale of a slave in which she ^claimed a life estate, and which had been levied upon under an execution issued in the name of Haskins and Terry against William M. Tyree for two hundred and sixty-three dollars, with interest thereon from the 19th of February 1841, until paid. In her bill she stated that Robert W. Snoddy died in 1845 intestate, leaving her his widow and three children.

<p>In a writ of right, brought in the circuit superior court of Nansemond, by the plaintiff in error against the defendant, to recover a parcel of 729 acres of land in that county, there was a special verdict stating the case thus *.</p> <p>Stephen Wright, who died early in 1816, by his will devised as follows—“ I give to my son Edward Wright the plantation on which I now reside, and also the plantation I bought of James Wilson, to him and his heirs forever—I desire that if my son Edward Wright should die without lawful issue of a son, that the aforesaid lands and plantation to descend and go to my son Henry Wright.” The devisee Edward entered upon the lands devised to him; and by deed, dated the 19th August 1819, sold and conveyed the plantation on which the testator resided to Cohoon, the tenant in this action; and ünder that conveyance Cohoon took and had ever since held, and now claimed. Edward Wright died in January 1832, “without” (in the words of the verdict) “leaving or having had lawful issue of a son or of issue male or female.” The testator’s son Henry Wright was the demandant in the action; and the plantation on which the testator resided was the land demanded. The question referred to the court was, whether the demandant or the tenant was entitled ?</p> <p>The circuit superior court held that the law was for the tenant, and gave judgment for him accordingly; to which this court allowed the demandant a supersedeas.</p>

^Thomas J. Powell being- indebted to William and Mary college, he executed his bond, bearing date the 25th day of April 1836, with George N. Powell… Held: that the deed of January 1st, 1839, from Thomas J. Powell to Bosher, having been made when Powell was indebted to the *plaintiffs, was, as to them, null and void, except to the extent of the interests surrendered by Mrs. Powell in relinquishing .her right of dower in the lands óf her husband, and her right to her own land.

This was a foreign attachment in chancery, sued out of the circuit superior court of Jefferson, by E. Pittman Sp co. against John Sp Henry Brien, the absent debtors, and Brown, the garnishee.

<p>Debt by Dabney, late sheriff of Gloucester, against Catlett, in the circuit superior court of that county, for 300 dollars, the penalty of a bond with collateral condition. The bond was dated in 1837, and was executed by Catlett and one Howlett since dead. The declaration counted on and made profert of the bond in the usual form, and set out the condition in hcec verba: “ The condition of the above obligation is such, that whereas J. Catlett assignee of J. Howlett hath sued out of the circuit superior court of Gloucester, two writs of fi. fa. against the goods &c. of J. Dutton upon judgments obtained in the said court, which writs with the legal costs attending the same amount to 191 dollars, and whereas T. Dabney, sheriff &c. hath levied the same on the following property, [specifying, among sundry other chattels, one grey mare j and a doubt arising whether the right of the said property is in the said Dutton, the sheriff hath required of the said Catlett bond to indemnify him pursuant to the statute in such case made and provided; now, if the above bound Catlett and Howlett shall indemnify the said Dabney against all damages which he may sustain in consequence of the seizure and sale of the property on which the said execution has been levied, and moreover shall pay and satisfy to any person or persons claiming title to the said property, all damages which such person or persons may sustain in consequence of such seizure or sale, then the said obligation to be void.” And the declaration assigned the following breach of the condition, that the right of the property in the grey mare was in one Booker, and the same was not liable to seizure or sale under the executions ; and that Booker, in an action against Dabney the sheriff, recovered 62 dollars with interest &c. for damages by Booker sustained by reason of the seizure and sale of a grey mare part of the property so levied on and sold, and 32 dollars costs of suit, as would appear by the record of that suit; and that Dabney had paid Booker the full amount of the judgment so by him recovered, which neither the said Catlett nor the said Howlett, nor the representatives of the said Howlett or either of them, have paid to the said Dabney, though thereto often requested. By reason whereof action accrued to the said Dabney to demand and have of the said Catlett the said sum of 300 dollars (the penalty of the bond). Nevertheless &c.</p> <p>Catlett took oyer of the bond and condition, and demurred generally to the declaration.</p> <p>The court held that the law upon the demurrer was for the defendant Catlett, and gave him judgment: to which this court allowed Dabney a supersedeas.</p>

<p>The appellant Doane, Sturges and Buckley, were owners of the schooner Empire, which was one of a line of packets running between Neiv York and Norfolk.</p> <p>In October 1837 Keating shipped at New York for Norfolk 25 hogsheads of molasses to be stowed on deck, and bills of lading were signed by the master, in the following words: “ Shipped in good order by Thomas Keating, on board the schooner Empire, whereof is master for the present voyage, now lying in the port of New York and bound for Norfolk, twenty hogsheads molasses, being marked and numbered as per margin, which are to be delivered in like good order and condition at the aforesaid port of Norfolk (the dangers of the seas only excepted) to Merit Jordan or his assigns, he or they paying freight for the said thirty-five dollars as customary, with primage and average accustomed. In witness whereof, the master or purser of said vessel hath affirmed to bills of lading, all of this tenor or date, one of which being accomplished the other to stand void. Dated at New York the 15th October 1837. (Signed) J. P. M ’Math.”</p> <p>The vessel sailed from New York on the 2'lst October, and did not arrive at Norfolk till the 6th November. In the progress of the voyage, the vessel being off cape Henry, a violent storm came on, which blew her off to cape Halteras; and while she was scudding before the wind, a consultation was held as to what was to be done, anq jj- was recommended that part of the deck load should be staved. The master gave orders that it should be done ; and 23 of the 25 hogsheads of molasses were accordingly staved. This course was necessary to save the vessel, the cargo and the crew; the storm could not be weathered without doing it. On the arrival at Norfolk, the cargo was delivered, Keating making no claim, and giving no notice not to deliver the cargo.</p> <p>In December 1837, Keating sued out of the circuit superior court of Norfolk, a subpoena in chancery against Doane, Sturges and Buckley, the ship owners, MAMath the master, and Rowland the agent of the owners, with an endorsement of foreign attachment. The ground of claim stated in the bill, was, that the master did not take due and proper care of the 25 hogsheads of molasses, but failed to deliver 23 hogsheads of the same. In consequence of which, the ship owners being nonresidents, the bill sought to subject any property of theirs, in the hands of the home defendants, to satisfy the value of the 23 hogsheads.</p> <p>Rowland answered, that he had no property of the ship owners in his hands; and M’Math, that the schooner was in his possession as master, and was within the jurisdiction of the court. The ship owners answered, that due and proper care was taken of the molasses: that during the voyage, a violent storm made it necessary for the safety of the vessel, the cargo, and all on board, that the molasses, which was a deck load, should be thrown overboard or staved, and so it was owing to the act of God, that the 23 hogsheads were staved and remained undelivered; and they denied that they were responsible for goods shipped on deck, as in this instance the molasses was, and staved in consequence of perils of the sea, insisting that where a deck load is so lost by the perils of the sea, without any want of care on the part of the master, the loss must fall on the shipper and not on the ship owners.</p> <p>It was clearly proved, that Sturges, one of the owners, reluctantly, and at the earnest request of Keating, agreed to take the molasses as a deck load, and Keating saw it being stowed on deck: that the bill of lading was signed, in its present form, by the master, without reading it: that the freight of 35 dollars, was one dollar per hogshead from New York to Norfolk, and ten dollars . from Norfolk to Gosport where the molasses was to be delivered, which was the usual freight for a deck load; whereas, had it been stowed under hatches, the freight would have been one dollar and twenty-five cents per hogshead: that Keating arrived at Norfolk before the vessel, and stated in conversation with several persons that his molasses was on deck, and he expected it would be lost; and he told one witness, that he thought the 23 hogsheads should come under general average; the witness told him he thought not, and offered to go with him to mr. Cowper, the secretary of the marine insurance company; mr. Cowper, upon Keating’s state of facts, remarked that a deck load was not entitled to the benefit of general average j upon which Keating observed that the loss of the molasses would be his loss.</p> <p>There was proof, on the other hand, to shew that the vessel was employed in the coasting trade between New York and Norfolk, and was so constructed as to carry deck loads, and was in the habit of carrying such loads.</p> <p>On the 29th November 1838, the court ordered, that the ship owners should give bond with surety in the penalty of 2000 dollars, with condition that the vessel should be forthcoming to pay and satisfy the decree, or that they should pay and satisfy the sum that should be decreed to Keating; and on failure to give such bond, the sergeant of Norfolk borough was directed to take possession, of the vessel, and deliver her into the possession of Keating upon his executing a like bond, and on his failure to give such bond, to retain the vessel till further order. And the cause coming on for hearing, the court decreed, that the ship owners should render an account of the value of 23 hogsheads of molasses at the price such molasses would have been worth at Norfolk at the time of the vessel’s arrival there, and of the several values of all the goods and merchandize shipped on board the schooner which arrived, distinguishing the several shippers and the respective values of their goods and merchandize, and also an account of the value of the schooner, her tackle, apparel and furniture ■ and then, the commissioner was directed to state an account upon the principle of general average and contribution; ascertaining the amount due Keating in consequence of the loss of his molasses. On the next day, the parties filed an account to be received and taken as the accounts which the commissioner was to state: and the ship owners consenting, that the sum of 1258 dollars should be taken as the true amount due to Keating (if any thing was due) after ascertaining the contributory share which the several owners of the schooner and of her cargo should pay towards his loss, and deducting such contributory share from the value of Keating's molasses which was staved for the preservation of the schooner and her cargo ; and it appearing that the ship owners delivered all the cargo that arrived safe in the vessel, to the respective consignees thereof, without settling the average loss, or demanding payment of the several contributory shares; the court decreed, that the ship owners shordd pay Keating. the said sum of 1258 dollars, with interest from the 1st January 1838 till paid, and the costs of suit; and that, unless payment should be made within sixty days from the adjournment of the court, the sergeant should make sale of the schooner, her tackle, apparel and furniture, &c.</p> <p>From this decree, Doane, Sturges and Buckley, by , . ...... , petition to this court, prayed an appeal; which was aJlowed.</p>

John Cullins, late of the county .of. Powhatan, died in 1833, leaving a will which was duly admitted to probat. Held: that Henley and Polly Cullins took but a life estate in the slaves and other property of John Cullins, except such as was consumed in the use: That the slaves emancipated by the will were free on the death of Henley Cullins, but that their children born after John Cullins’ death and during the lifetime of Henley Cullins, were slaves,…

On the 25th of October 1851, William N. M. Taylor instituted an action of debt in the Circuit court of Mecklenburg county against Richard H. Daly for four hundred and two dollars and four cents, with legal interest thereon from the 27th of March 1849.

Erskine Sp Eichelberger took out a subpoena in chaneery from the circuit superior court of Jefferson, against Staley and Johnson, dated the… Held: upon the evidence, that Staley was not in fact a nonresident against whom the proceeding by foreign attachment was proper; and if he was, yet that Hamilton fy Cost’s attachment in their action at law, and the proceedings, judgment and order, consequent upon it, gave them a right to the proceeds of the attached effects, which the…

Some time previous to 1809 William Barnett 'died, leaving' a widow and eight children,' and possessed of a tract of land in the county of Goochland containing, according to an old survey, two hundred and fifty-seven *acres. The widow seems to have had a life estate in the land, and 'to have died previous to the year 1828. One son, George C. Barnett, seems to have died after his father, intestate and unmarried ; and his brothers and sisters were his heirs.

This was an action of detinue to recover a slave, brought in the Circuit court of Buckingham county in December 1848, in which Gustavus A. Rose, the survivor of three trustees, was plaintiff, and George W. Nixon was defendant. Upon the trial the jury found a special verdict, which showed the following facts: That Mrs. Caroline M. Rose died in 1809, leaving a daughter Emily, then married to William R. Coupland.

On the 1st January 1825, Waddy Thompson, being at the time much embarrassed with debt, executed a hill of sale of a female slave named Sukey to Nicholas Owen, in consideration of 250 dollars then paid by Owen, and warranted the title; and on the same day, Thompson gave his bond to Owen for 25 dollars, the hire of the slave for one year.

In. February 1826, David Coyle conveyed, by a deed of gift, a house and lot in Fredericksburg “ to Ann Curtis for the use and benefit of her the said Ann and her offsprings forever;” habendum “ to the said Ann and her offsprings forever.” Ann Curtis married Hyland Mullen.

This was an action of debt in the Circuit court of Norfolk county upon an indemnifying bond brought by William Etheridge, coroner, acting as sheriff, for the benefit of William M. Eevy, against William H. Ad-dington and two others, his sureties in the bond.

On the 28th of June 18S3, between- the hours of 10 and 11 o’clock A.. M. William M. Clark sued out of the clerk’s office of the Circuit court of Frederick county a subpoena in chancery against Henry P-Ward, George W. Ward and C. Lewis Brent, returnable to the next July rules.

<p>Certificate of justices of privy examination of the wife to a deed of husband and wife, states, that the wife appeared before the justices, and separately and apart from her husband, acknowledged that she had willingly executed the deed on her part, and wished not to retract it; the deed was signed and sealed by both husband and wife in 1798, and the privy examination was had in 1816: Held, upon construction of the statute of 1814 (incorporated in the statute of conveyances, 1 Rev. Code, ch. 99. § 15.) that the certificate is defective in not shewing that the deed was explained to the wife, or that she was in any way apprised of its contents and purpose, and therefore the rights of the wife did not pass by the deed.</p>

This was an .action of ejectment in the Circuit, court of Barbour county, by the lessee of Martin-Miller and others against Peter and Peter P. Bohr. The case is stated by Judge Samuels in his opinion. There was a verdict and judgment for the plaintiffs ; whereupon the defendants obtained a supersedeas from this court.

On the 3d of June 1850, John C. Olinger, the plaintiff in error, exhibited his complaint before a justice of the peace of Tee county, that Alfred Shepherd, the defendant in error, had unlawfully turned him out of possession of a certain tenement, containing by estimation two hundred acres of land, with the appurtenances, lying and being in the county aforesaid: whereof he prayed restitution of the possession.

<p>To an action for insulting words under the statute to suppress duel-ling, no plea of justification can be received.</p> <p>Where the evidence on the trial of an issue is conflicting, and the court is satisfied with the verdict, and a new trial is asked and refused, the court is right not to certify the facts proved.</p> <p>A party having had two, if not three, continuances, and leave to take his depositions to be read in chief, is neither entitled to another continuance, nor to have the trial of the cause put off for another day during the same term.</p> <p>The court, on the trial of an issue, makes a remark calculated to prejudice the minds of the jury against the defendant, but at the same time tells the jury, that that remark has nothing to do with the cause, and ought not to influence their verdict; and a verdict is rendered for the plaintiff: Held, such remark is no ground for reversing the judgment on the verdict.</p>

*In May 1833 John H. Eulton and Beverley R. Johnston, executors of Charles C. Johnston deceased, and guardians of his two infant children, filed their bill in the Circuit court of Washington county against the said infants, to have a sale of a tract of land descended to them from their father.

Debt, in the circuit superior court of Mecklenburg, in the names of Reuben Hicks, James Harrison, Pascal Hicks and IAttleberry Baugh, commissioners &c. suing for the benefit of Robert Jackson, against Goode, on a bond for 590 dollars 62 cents. The declaration demanded that sum with interest from the 8th July 1827, and counted on the bond as the deed of Goode, an¿ maqe profert of it, in the usual form.

These cases were before this court in 1847, and are reported in 4 Gratt. 58. They were four actions for freedom broug-ht in 1826, in the Circuit court of Montgomery county. Held: is about ninety miles, and Taylor, one of the defendants, attended the court at that term. The notice for taking the deposition was served on one of the defendants on the 8th, on another on the 9th, and on another on the 10th of April.

<p>Upon writs of supersedeas to two judgments of the circuit superior court of Bedford, the case was thus:</p> <p>Stephen Martin brought detinue against John Martin for a slave named Charles: John brought detinue against Stephen, for three slaves, a negro woman named Lucy, and two negro hoys, William and Ccesar, sons of Lucy: and John also brought an action of debt against Stephen. The parties agreed to refer the causes to arbitration, and their submission was made a rule of court and entered of record, under a caption in which all the three causes were mentioned, in the following words: “ By consent of the parties all matters of difference between them in these suits are referred to the final determination of J. F. Sale and J. Wilson, or to an umpire to be chosen by them in case they disagree, and their awards or the awards of their umpire to be made the judgments of the court; and it is ordered accordingly.” The arbitrators, under a caption mentioning the two actions of detinue, omitting the action of debt, made the following award: “ Pursuant to an order of the circuit superior court of Bedford made by consent of the parties in the two causes before mentioned depending in the said court, we, the undersigned arbitrators in said order mentioned, have this day, in the presence of the parties and at their request, both professing to be ready for trial, proceeded to adjust the differences between them in the said suits, and after hearing the statements and the witnesses introduced by the parties, we do award, that the suit of Stephen Martin against John Martin shall be dismissed, and that the plaintiff pay the defendant his costs expended in that suit. And, in the last mentioned cause of John Martin against Stephen Martin, we award, That the plaintiff recover against the defendant, the negro woman Lucy in the declaration mentioned of the value of 600 dollars, the negro boy William in the declaration mentioned of the value of 325 dollars, the negro boy Caesar in the declaration mentioned of the value of 275 dollars, a negro girl (name not known) a child of the said Lucy born since the institution of this suit of the value of 200 dollars, and an infant negro girl, a child of the said Lucy, also born since this suit was brought, of the value of 100 dollars; if the said negroes may be had; if not, then the prices aforesaid of them or of such of them as may not be had; and the costs of the said plaintiff expended in the said suit. Given under our hands &c.”</p> <p>This award being returned to court, Stephen Martin filed seven exceptions to it: five of which were founded on allegations of fact, imputing error in the proceeding of the arbitrators : the other two presented the following objections to the award—1. That it was not in pursuance of the submission, nor did it decide all the matters submitted; and 2. that the award was not within the submission.</p> <p>The court overruled the exceptions, and gave judgments according to the award; judgment in the action of detinue of Stephen Martin against John Martin, dismissing the suit with costs; and, in the action of detinue of John against Stephen, judgment for the plaintiff, not only for the three slaves, Lucy, William, and Casar, which were claimed in the declaration, but for the other two children of Lucy born since the institution of the suit, which therefore were not demanded but which were awarded to him by the arbitrators.</p> <p>Upon the petition of Stephen Martin, this court allowed him writs of supersedeas to the judgments.</p>

This case was before this court in 1837, and is reported in 8 T-yeigh 689. In addition to the facts stated in the report of the case in 8 Leigh, it is to be stated that Bolton lived in Baltimore in 1807, when the three notes were executed, on which the judgments were recovered against Connally Findlay as surviving partner of Findlay & Co.; and he continued to live there until his death, without so far, as the record shows, ever having been in Virginia.

Debt, in the circuit superior court of Jefferson, in the name of the governor, at the relation of Cockrell, against Williams, the sheriff of the county, on his official bond. Held: that the law upon the demurrer was for the defendant, and gave him judgment: to which the plaintiff applied to this court for a supersedeas; which was allowed.

This was an action of debt, brought in the circuit superior court of Chesterfield, by Sarah Boisseau, widow of Edward H. Boisseau, against John F. May, for 750 dollars lent to him by Sarah Boisseau during her husband’s life. The declaration made proferí of a due bill or promissory note, which was in these words: “ Borrowed of mrs. E. H. Boisseau 750 dollars, November 5. 1829. (Signed) J. F. May.” The defendant pleaded nil debet.

This was an action of debt in the Circuit court of Randolph county, brought by John S. Carlile, for the use of Samuel Gibbons, against I)li Butcher. The case is stated by Judge Moncure in his opinion.

I. The first of these suits was an action of trespass quare clausum fregit, brought by Maitland against Dishazer in the county court of Charlotte. Plea, the general issue. Held: that the law upon the demurrer was for Maitland, and gave him judgment. Dishazer applied by petition to the circuit superior court of Charlotte for a supersedeas, which that court denied. And then he applied to this court for a supersedeas; which allowed it. II.

By a petition bearing- date the 10th day of March 1851, Harrison Polly, and three others, his brother and two sisters, applied to John W. Hite, a justice of the peace for Cabell county, stating that they were free persons of color, and were then in the possession of William Ratcliff, who held them as slaves: And they prayed that a summons might issue authorizing the '^sheriff of Cabell to take them into his possession for safe keeping, until the first day of the next term of…

William Barksdale made a will, dated the 4th June 1838, in the following words—“ In the name of God, Amen. I William Barksdale of the county of Amelia, in the state of Virginia, do ordain this writing, written with my own hand this 4th day of June 1838, to be my last will and testament, hereby revoking all others whatsoever. I give and bequeath to my eldest sister, Frances P. Barksdale, 30,000 dollars. I give and bequeath to Susan Stott, 5000 dollars.

This was a bill by Henry and Lewis Ruffner to enjoin and restrain Richard E-Putney from conveying away or disposing of certain property devised to Putney or Putney and wife, by David Ruffner deceased ; and to subject the same in the hands of said Putney, or in the hands of purchasers from him, upon the grounds of an equitable mortgage which the plaintiffs claimed under an agreement with David Ruffner.

Evan Thompson and William Byars entered into a bond with condition to abide by an award, in the following words: “ Whereas the undersigned, Evan Thompson and William Byars, have had many accounts of dealings one against the other, and said Thompson having sold Byars several tracts of land, and said Byars having made him sundry payments, yet the said Thornpson contends he is not fully paid for those lands sold to . . . . said Byars, and having instituted a suit m the superior…

This was an action of debt on a bond for four hundred and thirty-five dollars, bearing date the 14th of May 183S, brought by James M. Smith against Thomas Lunsford. Issue was made up on the plea of payment, and by consent of parties it was entered of record, that under this plea the defendant might make any defense which he could make under any plea which he could file either under the common law or the act of assembly.

On the 12th of March 1831, an inquisition was taken before the escheator of Cabell county ; and the jury having been charged to enquire what lands and tenements John Piott, late of the city of London and kingdom of Great Britain, merchant, now deceased, died seized of ; whether he left any heirs, or made other disposition of said lands in his lifetime; and whether the said John Piott was an alien at the time of his death; they found that the said John Piott, late of the city…

Assumpsil on special contract, brought by Moss against Chapman, in the circuit superior court of Monroe. The declaration contained five counts. 1.

Robert English, with Robert Jackson, Stephen Ca-tron and John P. Matthews, his sureties, executed a bond to John Foster administrator of David Pierce, dated the 13th November 1833, for 1325 dollars, payable with interest from the date on the 10th March following ; and on this bond Foster recovered judgment, in September 1835, against English, Jackson and Matthews, Catron being then dead.

In 1804, Joseph Stover instituted an action of debt against Paulser Huber and Jacob Hutsonpiller in the County court of Green-brier, upon a bond for one hundred and seventy-two pounds, executed in 1788. The sheriff returned the process executed on Hutsonpiller, *and that Huber had kept him off by force of arms.

<p>In the lease of a mill, lessee covenants to keep up the repairs of the mill, except heavy repairs, such as if the dam or forebay should be injured by high water, or if the main shaft or wheel should give way so as to require a new one, in this case, it is to be repaired by the lessor in a reasonable time, Mid the lessor is not to lose the rent if he should go on to do the work according to contract ; the mill is wholly destroyed by accidental fire during the term; and the lessor fails and refuses to rebuild the same: Held, the rent is suspended from the time of such destruction of the demised premises; Dissentiente Tucker, P.</p>

Patrick McCullough & Co. instituted an action of debt in the County court of Marion against Patrick McDonough, William Mc-Donough and B. McDonough, for the sum of five hundred and twenty-five dollars and twelve cents. On the same day on which the process was issued, an attachment was sued out by the plaintiffs to attach the effects of the defendants to satisfy the debt for which the action was brought. This attachment was served on the Baltimore and Ohio Railroad Company.

This was an action on the case in the Circuit court of Ohio county, brought by Dorrance McGinnis against the Washington Hall Association, for injury done to the wall of plaintiff’s house, by digging on the adjoining lot. On the trial the plaintiff offered to introduce in evidence the deposition of Michael Keafe, which had been taken de bene esse, which was objected to by the defendant on the ground of the insufficiency of the notice.

This is the sequel of the case of Armstrong’s heirs v. Walkup & others, 9 Gratt. 372. When the cause went back to the Circuit court, that court made an order directing a commissioner to state and report an account between the parties in accordance with the decree of the Court of appeals. The commissioner stated the accounts of the three wards separately.

The general -assembly passed an act in 1796, authorizing certain commissioners therein named to raise by lottery, 25000 dollars, to be applied towards the expense of rebuilding houses consumed by fire, shortly before the passing of the act, in the town of Lexington. The commissioners toot no steps to carry the act into execution, and the sufferers by the fire rebuilt their houses with their own means.

This was an action of detinue in the Circuit' court of Brooke county, brought by Oliver Pryor against Adam Kuhn, to recover a quantity of glass ware. Both parties claimed under Metcalf, Miller & Co. who were manufacturers of glass. When the cause was called for trial, the parties waived a jury and submitted the case to the court; and the evidence being heard, the court gave a judgment in favor of the defendant.

<p>This was ail action of debt brought by Wallace, for the benefit of Bradley, against Shaffer, in the circuit superior court of Washington, for 400 dollars, the penalty of a bond conditioned for the conveyance of title to a parcel of 200 acres of land.</p> <p>The declaration set out and made proferí of the bond, and set out the condition, that Shafer should make or cause to be made to Wallace, a good and complete title to a 200 acre tract of land, lying in Morgan county, Tennessee, on the Clear Fork of Cumberland, being the ' " same 200 acre tract purchased of Lawrence Scott; and assigned the breach of the condition, that Shaffer had not made or caused to be made, to Wallace, or any other person having a right to demand the same under the obligation, a good and lawful title to the said parcel of land.</p> <p>Shaffer took oyer of the bond and of the condition; and the condition was, that Shaffer should make or cause to be made to Wallace a good and lawful title to a 200 acre tract of land lying and being in the county of Morgan on the Clear Fork of Cumberland, being the same 200 acre tract purchased from Lawrence Scott. And it appeared by endorsements on the bond, that it had been assigned by Wallace to Jacob Miller, and by Miller to Abraham Bradley, for whose benefit the suit was brought. And then he pleaded, 1. Conditions performed ; and 2. That after the bond had been assigned to Miller, and before it was assigned by Miller to Bradley, the defendant and his wife executed a deed conveying the land to Miller, and acknowledged the same before two justices of the peace of the county of Washington, Virginia, and tendered the deed so executed and acknowledged to Miller, who was then and there the proper person to receive it, he then holding the bond, and that Miller refused to receive the deed; and the plea averred, that the land conveyed by the deed was the same land mentioned in the condition of the bond. General replications were put in to the pleas, and issues were made up.</p> <p>At the trial of the issues, Shaffer offered in evidence to support his first plea, a deed with the certificates annexed of the acknowledgment thereof, to the introduction of which the plaintiff objected, and the court refused to admit it, on the ground that the defendant was bound to shew that the deed, with the certificates thereto annexed, was sufficient to convey the land, according to the laws of Tennessee, and as those laws were not laid before the court, it could not judicially know that the deed was sufficient. The defendant excepted.</p> <p>The jury having, upon all the evidence, found a verdict for the defendant, the plaintiff moved the court for a new trial, which motion the court overruled; and the plaintiff filed a bill of exceptions, stating the facts proved at the trial—That the plaintiff, having given in evidence the title bond, which was assigned by Wallace to Miller, and by Miller to Bradley, further proved on his part, that neither Lawrence Scott nor the defendant owned, or ever had owned, any land in Morgan county, Tennessee, on the Clear Fork of Cumberland; that the tract of land described in a grant from the state of Tennessee to the defendant, and in the deed offered by the defendant in support of his pleas, (the same mentioned in the first bill of exceptions,) was situated at the forks of Cook’s and Crabtree’s creeks, streams flowing into Emery’s river, a branch of Clinch’s river; and that the consideration paid by Wallace, on his contract with the defendant, was 200 dollars, part of the price of a slave. And the defendant, on his part, introduced a grant from the state of Tennessee to him, in pursuance of an entry made in the entrytaker’s office in Morgan county by Charles Atkins, of 200 acres, lying in the said county, on the waters of Clear Creek, describing the same by metes and bounds; and he proved, by one witness, that the land granted to him was equal or superior in quality to lands on the waters of the Clear Fork of Cumberland, and that it lay within about four miles of the waters of that stream: and he then proved, in mitigation of damages, that he and his wife acknowledged the deed mentioned in the first bill of exceptions, and excluded, before two justices of the peace of Washington, Virginia, conveying the land granted to him to Miller, and that Miller, who then held the title bond, was satisfied with and agreed to accept the deed, and to surrender the title bond, saying he had before doubted Shaffer’s ability to make him a good title, but he now perceived he could do so : that the deed, however, was not delivered to Miller, but was left with one of the justices before whom it was acknowledged, and was never applied for by Miller, who refused to accept it, or to surrender the title bond, and soon after assigned the bond to Bradley: that the land covered by the grant to Shaffer, and which was described and intended to be conveyed by the deed of Shaffer and wife to Miller, was the same land which was sold by Lawrence Scott to Shaffer, and which was included in Shaffer’s grant; and that the consideration of Bradley’s purchase of the title bond from Miller, was 1060 acres of hilly land of little value, being not worth more than six and a quarter cents per acre. It was then proved by seven witnesses for the plaintiff, that the land described in the defendant’s grant was not nearer than eight or ten miles to the Clear Fork of Cumberland, and that it was inferior in value to lands on that stream, the whole tract not being worth more than 50 dollars. Whereupon, the court said, that the grant issued by the state of Tennessee to Shaffer, assignee of Atkins, for 200 acres of land, described the tract as lying on the waters of Clear Creek, which, in the absence of all testimony on the subject, the court took to be the same as the Clear Fork of Cumberland river; that the waters of that creek probably interlocked with those of Cook’s and Crab-tree’s creeks, on which many of the witnesses said the land lay; but, however that might be, there was no allegation or proof that any of the parties had ever seen the land sold, or the county in which it lay: that, from a knowledge of the country, lands on the Clear Fork of Cumberland were more desirable, or more valuable, than lands on Cook’s and Crabtree’s creeks, and the purchase was made in reference to the locality of the lands on the first mentioned of the streams; yet it was manifest to the court, that it was a mistake in the description, that the land lay on the Clear Fork of Cam]jeriang. that if the truth had been known, it would not have affected the contract, which was a loose one, mainly dependant, for its description, on the fact that the land sold was the 200 acres purchased of Lawrence Scott; that it was manifest from the testimony, that the land attempted to be conveyed by Shaffer’s deed to Miller, was the only land ever purchased of Scott, and was the land sold to Wallace, and whether it lay on the Clear Fork or not, did not, under the circumstances, seem to be material, since it was evident, that neither Wallace nor his assignee was influenced in his purchase by the locality of the land, and it appeared doubtful which was the most valuable, land lying on the Clear Fork, or land on Cook’s and Crabtree’s creeks: that the goodness of the title was the main object in the purchase. That it appeared, that Miller, while the contract was his, accepted the deed executed to him by Shaffer and wife ; and if that had appeared when the court decided against the admission of the deed in evidence, a different decision would probably have been made on the ground of the acceptance; but the deed was offered and rejected before any proof of Miller’s acceptance of it was given. Upon the whole case, the court, thinking that substantial justice had been done by the verdict, refused to set it aside, and overruled the plaintiff’s motion for a new trial.</p> <p>The court then gave judgment for the defendant according to the verdict; to which this court allowed the plaintiff a supersedeas.</p>

<p>Though no action lies for clerks’ fees, till they shall be put into an officer’s hands for collection, and he has returned that they cannot be levied by distress, yet the clerk may set them off against an action on his bond to the party from whom they are due.</p> <p>And if the clerk’s fees were never put into an officer’s hands for collection, there was not, till the statute of 1839, any limitation to the clerk’s claim for them.</p>

Robert Gaw died in 1829, having first made his will, which was duly admitted to probat in the County court of Shenandoah. Held: that the will of Robert Gaw did not charge his real estate with the payment of his debts; that Crawford’s representatives were entitled to charge the real estate for so much of the amount due to him as was in payment of debts binding the heirs.

Barbara McGuire died about the end of the year 1835, having made her will, which was duly admitted to record in the County court of Brooke; and James and Robert Marshel qualified as administrators with the will annexed, with William Tarr and John Hendricks as their sureties. They also qualified as administrators of Francis McGuire with the same sureties.

*On the 14th of January 1852, the intestate of the defendants in error instituted an action of assumpsit against Patrick and F. C. Crowley, in the Circuit court of Marion county; and on the same day they sued out an attachment against the estate of the debtors under the provisions of the Code, ch. 151, $ 2, p. 600, with an endorsement directing the sheriff to summon the Baltimore and Ohio railroad company as garnishee.

This was a caveat in the Circuit court of Marion county, filed in January 1849, by William Eldridge, to prevent the issue of a patent to William Caruthers and David Morgan for seven hundred and ninety acres of land, of which they had made an entry, and had a survey made. After the proceeding had been commenced the caveator died, and it was revived in the name of his executor and the devisees of the proceeds of the land which was directed by the will to be sold.

John Dilworth was indicted in the Circuit court of Harrison county, for the murder of Addison Bumbg-ardner. When the trial came on, William Flanagan was called as a juror, and was sworn and tried on his voir dire; and stated that he had not made up or expressed any opinion as to the guilt or innocence of the prisoner, and proved himself free from exceptions ; and was thereupon placed upon the panel of twenty-four.

These were indictments in the Circuit court of Appomattox county, for selling- ardent spirits to slaves without the written permission of their master. The facts are stated by Judge Allen in his opinion. Judgments having been rendered against the parties, they applied for writs of error, which were allowed.

At the March term 1855 of the Circuit court of Lunenburg- county, Ishman W. Vaiden was indicted and tried for the murder of James A. Winn. The jury found him guilty of voluntary manslaughter, and fixed his term of imprisonment in the penitentiary at four years ; and the court sentenced him accordingly.