Volume 14 — Virginia Reports

This was an action of debt in the Circuit court of Essex county, brought by Miller & Mayhew against R. M. Davis, to recover the amount of a note for six hundred and ninety-four dollai’s and seventy-five cents, payable six months after date, at the Exchange Bank at Richmond. The declaration was in the common form. • The note was executed by Davis to Edward L. Eant & Co., and was endorsed by them to the plaintiffs after it fell due.

This was an action of debt on an indemnifying bond in the Circuit court of Henrico county, instituted in July 1847 by Benjamin J. Duval, adm’r de bonis non, Hfc. of Mosby Sheppard deceased, who sued for the benefit of John and Benjamin Sheppard, against James Malone and Richard H. Whitlock, the obligors in the bond.

This was an action of ejectment instituted in November 1850, in the Circuit court of Kanawha county, by James A. Lewis and two others, against Davidson D. Atkins and four others, each claiming separate parcels of the land embraced within the patent of the plaintiffs. On the trial the defendants demurred to the evidence; and upon that demurrer the court rendered a judgment for the plaintiffs. Whereupon the tenants applied to this court for a supersedeas; which was allowed.

This was an action of debt in the Circuit court of Kanawha county, brought in the name of C. E. Doddridge and S. A. Miller against D. J. W. and John N. Clarkson, on three bonds. There was a verdict and judgment for the plaintiffs; whereupon the Clarksons applied to this court for a supersedeas, which was allowed. The case is stated by Judge Moncure in his opinion.

David Kerr owned a valuable tract of land in the county of Augusta, which he cultivated; and he also owned real estate in the town of Staunton, where he carried on the business of a merchant. In 1842 and in May and July 1846, Kerr executed three deeds, by which he conveyed his tract of land to trustees to secure certain debts and indemnify certain sureties therein mentioned.

This was a suit instituted in 1853, in the Circuit court of Greenbrier county, by John A. North against Henry Erskine’s executors, • Patrick Beirne, Elisha Buckingham and others.

This was a bill in the Circuit court of Kanawha county, filed by William A. McMullin against Charles A. Cox and others, for the partition of a tract of acres of land bounded on the… Held: used, enjoyed and worked, at the joint expense of the said Donnally and Wilson, to be a joint and equal property between them; they equally sustaining the losses and receiving the rents and profits thereon. In January 1829 James Wilson assigned his interest in this agreement to Peter Grant.

In October 1833 Kimble Hicks conveyed to his daughter Celia Shearman certain slaves and a tract of land. At that time Celia Shearman was married to Thomas Shearman; and they, being childless, by deed bearing date the 16th of March 1835, conveyed this land to John Timberlake. This deed is upon the consideration of one dollar, but it is absolute upon its face; and is with general warranty.

Joseph Vaughn and C. R. Mason, being the joint and equal owners of the property in the city of Richmond, known as the Swan tavern, and at a later period, as the Broad street hotel, they, by a writing under seal, bearing date the 14th of September 1846, entered into an agreement, by which, reciting their ownership of the property, and that death or other causes may make it necessary or advisable to sell it, they provide as follows: “ that should either party desire it, he…

This was a bill filed ia April 3854 ia the Circuit eourt ef New Kent, by Eichmond T. Lacy, executor of John L. Poindexter, to obtain a… Held: taken and adjudged to be personal estate.” This was re-enacted by 1 Rev. Code, p. 431, 1819; and by Code of Va. p. 458, 1849, it is summarily said, “ Slaves shall be deemed personal estate.” Looking at these acts, it is safe to say that the law regards a negro slave, so far as his civil status is concerned, as purely and absolutely…

This was a bill filed in the Circuit court of Charles City county by Nathaniel Nelson, late high sheriif of the county, against John C. Tyler, his deputy, and three others, his sureties. The plaintiff qualified as high sheriff of the county of Charles City in March 1837, and also in March 1838; and John C. Tyler qualified as his deputy in both years.

This was a suit instituted in the Circuit court of Mecklenburg in April 1847 by Rebecca Avory, the mother, and others, the brothers and sisters of William T. Avory deceased, against George W. Avory as administrator of William T. Avory, and in his own right, and Henry M. Spencer and Robert Andrews, his sureties in his official bend, for an account of George W. Avory’s administration, and for payment of what might be found due to the plaintiffs.

This was a bill filed in the Circuit court of Amelia county by the heirs and next of kin of Nathaniel Harrison deceased, against his executors, devisees and legatees, seeking to set aside certain provisions of his will, and to have him declared intestate as to the subjects embraced in these provisions.

This was a bill filed in June 1852 in the Circuit court of the city of Williamsburg and county of James City by the widow and children of Henley… Held: among other things, that the executor was liable for the amount of the two bonds above mentioned, and was not entitled to the ■commissions, which had been disallowed by the commissioner, except for so much of the estate, real and personal, as had been sold by Southall, and which remained unpaid at the time of his death.

At the January term 1857 of the County court of Alexandria county, Harriet Humphreys, a negro, filed her petition for leave to sue for her freedom : and at the same term Robert W. Hunter appeared by his counsel, and claimed to be the owner of said negro. And, by consent of parties, the court made an order directing the sheriff of the county to hire out the petitioner until final judgment should be rendered in the case.

This was an action of assumpsit in the Circuit court of the city of Petersburg, brought by David Condon against the South Side Rail Road Company. The plaintiff had been a contractor to execute the work on a section of the road of the company; and the only question was, Whether, under the contract between the parties, the action of the engineer in determining the character and fixing the price of removing certain rock, was conclusive upon the parties?

This was a scire facias upon a recognizance, issued from the clerk’s office of the County court of Alexandria county, against Esleeck Stearns alias William Slick and Samuel Gedney his surety.

This was an appeal from the sentence of the Circuit court of Chesterfield county, reversing the sentence of the County court, by which a paper was admitted to probate as the will of Benjamin Phaup deceased. The paper was propounded for probate by Ellis, Joseph and William Phaup, the nominated executors therein, and its probate was opposed by Edward Wooldridge and Mary his wife, and Martha Goode, the two females daughters of Benjamin Phaup deceased.

As early as 1827 a marriage settlement was executed, by which certain laud in Powhatan county and the slaves and other property thereon, were settled on William Finney and Elizabeth C. his wife, and the children of the marriage. In January 1837 Finney was dead, having left a widow and several children; and John Heth was the surviving trustee in the deed.

This was an action at law for freedom, in the Circuit court of Fairfax county, brought by the appellees against the appellant. The case is stated in the opinion of Judge Moncure.

This was a suit in equity instituted in September 1853, in the Circuit court of Northumberland county, by John J. Hudnall the younger, for the division of the estate left by his father; and the only subject of controversy was the land. Jobn Hudnall the elder died prior to February 14th? 1820, having left a will, which was admitted to probate on that day.

This was an action of debt in the Circuit court of Essex county, brought by Hiller & Mayhew against R. M. Davis, to recover the amount of a note for six hundred and ninety-four dollars and seventy-five cents, payable six months after date, at the Exchange Bank at Richmond. The declaration was in the common form. The note was executed by Davis to Edward E. Eant & Co., and was endorsed by them to the plaintiffs after it fell due.

This was an action of assumpsit brought by Peter V. Daniel, jr. against the city of Richmond, to recover back the sum of two hundred and twenty-two dollars and seventy-six cents, which he had paid as city taxes on stock owned by him in the Seaboard and Roanoke and the Richmond and Petersburg rail roads.

<p>The shares of a rail road company are not liable to be taxed by the eonneil of the city of Richmond, either under the charter of the city or § 19 of eh. 54 of the Code.*</p>

This was a bill filed in September 1857 in the Circuit court of Stafford county, by the executors of Hannah H. Coalter deceased, asking for the instruction of the court in the administration of their trust. The daughter, and other legatees of the testatrix, and her slaves were made parties. The only question considered by this court is, whether the slaves were emancipated.

John Eyre, late of the county of Northampton, departed this life the 19th of June 1857, leaving neither father, mother, wife, brother, sister, or lineal descendant. He left a will, which was duly admitted to probate in the County court of Northampton.

This was a bill filed in the Circuit court of Floyd county, by John Helms and Sarah his wife who was Sarah Livesay, against Susannah Livesay and others, the object of which was to recover certain slaves held and claimed by Susannah Livesay; but which the plaintiffs insisted were a part of the estate of her deceased husband Peter Livesay.

This was an action of assumpsit in the Circuit court of Marshall county brought by Polly, Woods &' Co. against the Baltimore and Ohio Rail Road Company. The facts of the case and the points involved in it, are fully stated by Judge Moncure in his opinion. There was a verdict and judgment for the plaintiffs; and thereupon the company applied to this court for a supersedeas; which was allowed.

This was an action of assumpsit in the Circuit court of Ohio county, instituted by John and William J. Lafferty against the Baltimore & Ohio Bail Boad Company. The case is very like the case of Polly, Woods & Co. against the same defendant, the report of immediately precedes this. The facts are stated by Judge Moncure, in his opinion. There was a verdict and judgment for the plaintiffs; and the rail road company applied to this court for a supersedeas; which was allowed.

This was an action of ejectment in the Circuit court of Carroll county, brought by Fielden L. Hale against Edmund Marshall. The case is stated by Judge Lee, in his opinion.

This was a bill filed in the Circuit court of Augusta county, by Mary Zumbro against Henry Grove. The object of the suit was to recover the plaintiff’s share of a tract of land which had descended to her as one of the seven heirs at law of Isaac Moore.

John Craig died in August 1852, leaving a widow and six infant children.

This was an action of ejectment in the Circuit court of the county of Ritchie, by John Rawson against William Hitchcox. The declaration set out that the plaintiff was possessed in fee simple of a tract of land in the county of Ritchie, containing eleven hundred acres, and bounded as follows: setting out the boundaries.

David S. Dixon died in April 1847, having made his will, which was duly admitted to probate in the County court of Augusta. He left a widow and ten infant children. The second, third, fourth and fifth clauses of his will are as follows: (i Secondly.

This is the sequel of the case reported 12 Graft. 655. When the cause went back the parties agreed the facts.

This was an indictment in the Circuit court of Harrison county, against William. M. McCann for a felonious and malicious assault upon Cyrus Boss with stones, with intent to maim, disfigure, disable and kill. There were three counts in the indictment, but they were substantially the same. When the prisoner was set to the bar, he moved the court to quash the indictment, on the ground that he had not been examined for the offence charged therein.

Two bills of exceptions were filed by petitioner upon the trial; but both present the same question, with so little variation, as not to require separate consideration. That question is, whether under an ordinary indictment for “unlawfully playing at cards,” the defendant can be found guilty, by proof, of betting at faro. By law, the game of faro is recognized as a different sort of gambling from ordinary card playing.

ceased to allay inflammation and promote aer he bowels. He made a post-mortem examination; after detailing the appearances, said he saw sufficient cause of death, without referring it to the beating.

At the April term 1857 of the Circuit court of the city of Richmond, Henry Bull and Thomas H. Haley were jointly indicted for the murder of Robert B. Ifar-quhar.

At the April term 1857 of the Circuit court of the city of Richmond, Henry Bull and Thomas H. Haley were jointly indicted for the murder of Robert B. Farquhar.

At the April term 1857 of the Circuit court of the city of Richmond, Floyd Tanner was indicted for larceny in stealing bank notes of the value of one hundred and twenty dollars, the property of Alfred Gwathmey. On the trial he was found guilty, and the jury fixed the term of his imprisonment in the penitentiary at one year: And he thereupon moved the court to set aside the verdict and grant him a new trial, on the ground that the verdict was not warranted by the evidence.

Allen Fineh was indicted in the Circuit court of Pittsylvania county for a felony. The first count charged that he did feloniously break and enter, in the day time, the store-house of Yancey W. Ingram, adjoining and occupied with the dwelling-house of said Ingram, with intent to commit a larceny. The second count charged that he broke and entered into the dwelling-house of said Ingram, in the day time, with the same intent.

At the May term 1857 of the Circuit court of Franklin county, Wilson Huff was presented by the grand jury for keeping and exhibiting an unlawful game played with dice, called chuckaluck, at the tavern-house of Samuel S. Helms in the town of Rockymount in Franklin county, within twelve months last past. At the October term 1857 Huff appeared ; and befoi’e pleading, moved the court to quash the presentment against him; which motion the court overruled; and he excepted.

This record, as it was when the prisoner was tried and when the writ of error was obtained, contained a paper purporting to be an indictment found by the grand jury of Greenbrier county, against Zepheniah (alias Cap) Shifflet, for that on the 19th of November 1856 he did feloniously and maliciously burn a certain saw mill and grist mill in said county, belonging to one Joseph F. Caldwell, of the value of one thousand dollars.

In June 1857 the grand jury impanneled in the Circuit court of the city of Lynchburg, found an indictment against John D. Boyle, for that on, &c. at, &e. “he did, without license so to do, sell ardent spirits, to be drunk where sold, in a room occupied by him,” &c. The indictment omitted the words “by retail.” Boyle appeared and demurred to the indictment; but his demurrer was overruled.

John W. Sherman was indicted, tried and convicted in the Circuit court of Culpeper county, for a felony in advising a slave to abscond from his master; and he was sentenced to six years’ imprisonment in the penitentiary. From this judgment he obtained a writ of error from this court, which was directed to operate as a supersedeas to the judgment. Whilst the case was pending in this court the prisoner broke jail, and absconded.

<p>A prisoner convicted of a felony obtains a writ of error, wbicb is directed to operate as a supersedeas: and he then escapes from jail. The appellate court will discharge so much of the order awarding the writ of error as directed it to operate as a supersedeas to the judgment. And will further direct that the writ of error be dismissed by a certain day, unless it shall be made to appear to the court by that day, that the plaintiff in error is in custody of the proper officer of the law.</p>

This was a presentment in the Circuit court of Henry county, at the April term 1857, against Andrew J. Purcell and seven others, for that they “did play at an unlawful game with cards at the ordinary of Pernella A. Mead in Martinsville in said county of Henry.” Purcell’s case was tried separately, and there was a verdict and judgment for the commonwealth.

Isaac B. Scott was examined before the County court of Giles county for a felony, in that he did, on the day of September 1857, in said county, feloniously and falsely forge and counterfeit divers, viz: twenty-four pieces of silver coin current in this commonwealth by the laws and usages thereof called half dollars, with intent to deceive and defraud: And the court ordered that he should be further tried before the Circuit court of said county for the felony with which he…

At an examining court held for Ohio county on the 8th day of February 1853, Robert J. Drew, charged with felony, and Alfred Caldwell his security, entered into a recognizance in the usual form, in the sum of five hundred dollars each, conditioned that the said Drew would appear at the Circuit court of said county on the first day of the next term thereof, then and there to stand his trial for the said felony, and not depart thence without leave of the said court.

The plaintiff in error was indicted for a misdemeanor in the Circuit court of Harrison county. On his appearance he moved to quash the indictment. His motion was overruled; and he put in the plea of not guilty. At the trial term he failed to appear in pursuance of his recognizance; but the trial proceeded in his absence, and the jury found him guilty, and assessed a fine of two hundred dollars against him.