Volume 15 — Virginia Reports

This was a motion in the Circuit court of the city of Richmond, by the auditor of public accounts, on behalf of the commonwealth, against John M. Drewry, 'x'late sheriff of Norfolk county, and Elizabeth Drewry and four others as his official sureties, to recover the land, property, capitation, free negro and September license taxes of 1856, due from Drewry as sheriff, and the interest and damages thereon according to law.

At the time of the death of Josephus B. Colton, which happened between the 15th day of August 1829, the date of his will, and the 3d day of October 1831, when it was recorded, he and his brother in law Henry Clarke were, and for several years before had been, engaged in mercantile business in the city of Richmond, carried on in a house on E street, which had been bought with the funds and for the purposes of the partnership, and is the subject of controversy in this case.

A summons in an action of debt was issued from the clerk’s office of the Circuit court of the city of Richmond, bearing- date on the 16th day of September 1854, in the name of George Aler, plaintiff, against Thomas G. James, defendant.

On the 24th day of September 1855 a summons was issued in the Circuit court of the city of Richmond, in the name of John hinders and William Palmer, executor of John hinders deceased, against Thomas C. Burch and Thomas T. Johnson, in an action of debt on two notes in writing; which summons was returnable to October rules, and was returned duly executed. At October rules the declaration was filed and a conditional judgment entered against the defendants.

On the 26th of October 1854 William Ham was appointed by the County' court of Elizabeth City guardian of Jacob Ham, an infant then under the age of fourteen years; and he qualified and gave security as such guardian. On the 16th of January 1857 Jacob Ham attained the age of fourteen years; and in October of that year he by his next friend moved the court to be allowed to nominate his grand father James Philips as his guardian to be appointed by the court.

Lewis laege being the owner of a lot of ground in the city of Richmond, on which he desired to erect a small dwelling-house, at a cost of some six hundred or six hundred and fifty dollars, and holding also five shares in the Richmond building fund compan}', he applied to that company for the loan of a sum of money for the purpose of erecting such a dwelling.

This was an action of debt in the Circuit court of Petersburg, brought by Nathaniel Clegg against Peter Lemessurier. The first count was in the usual form upon two writings obligatory, of which profertwas made.

This was an action on the case in the Circuit court of the city of Richmond, instituted by John C. Hobson & Son against the Washington and New Orleans Telegraph Company.

Thomas Crouch, claiming to be the creditor of George Ives deceased, for money-paid as a joint surety with him, in March 1854 filed his bill in the Circuit court of the city of Richmond, against the administrator and heirs of Ives, and a former guardian of the heirs, seeking to subject a lot in the city which was a part of Ives’ estate, and also to have anjT money in the hands of the former guardian applied to the payment of the debt.

This was an action of assumpsit in the Circuit court of the city of Lynchburg, brought by William T. Booker against William B. Averett’s administrator. The plaintiff declared upon the following paper, which he averred was made for value received.

This was a motion by the commonwealth, in the Circuit court of the city of Richmond, against James Monteith, sheriff of Stafford county, and twelve others as his sureties, for the recovery of a balance of ihe *land, property and free negro taxes of 18S7, due from Monteith. The facts are stated by Judge Allen in his opinion.

This was an action of ejectment in the Circuit court of Wood county, brought in June 1841, by the lessee of the heirs of Thomas Usher, jr. and Abraham Usher against Jesse Pride, Burr Triplett and three others, to recover a tract of land of twenty-four hundred acres, separate parcels of which were held by each of the defendants.

This was an action of ejectment in the Circuit court of Ritchie county, brought in March 1852, by Thomas Stinchcomb against Enoch Marsh, to recover one hundred acres of land.

'-'This was an action of ejectment in the Circuit court of Nicholas county, broug-ht in August 1855, by Hazael Williams and Thomas McCleary against Charles C. Miller, to recover a tract of three thousand acres of land. On the trial there was a verdict and judgment for the plaintiffs; and the defendant excepted to opinions of the court overruling a motion for a new trial, and also for refusing and giving certain instructions.

This was an action on the case in the Circuit court of Augusta county, brought by Jacob Sanger against the Virginia Central Rail Road Company, to recover damages for an injury which he sustained whilst being carried as a passenger on the defendant’s road. On the trial the defendant asked for six instructions to the jury; the first four of which were given, the fifth was refused, and the sixth was given with a slight addition.

This was; an action on the case in the Circuit court of Greenbrier county, brought by Margaret P. Callison against Henry Hedick, to recover damages for an entry apon and ploughing up and scraping her lands. Upon the trial, which took place at the October term 1858, the plaintiff proved the entry upon her land by the defendant, and that he ploughed up the same for the distance of about a mile, with the purpose of making '-'through said lands the Bewisburg and Oakland turnpike.

In July 18S9 John Shue, a man ox color, applied to the Honorable Tucas P. Thompson, judge of the Circuit court of Augusta county, for a writ of habeas corpus, alleging that he was a freeman, and had been levied on as the property of Abraham Hanna, by virtue *of an execution which issued from the clerk’s office of the County court of Augusta, upon a judgment recovered by Jacob Harnsbarger against Washington Swink, Abraham Hanna and others.

This was a proceeding: of unlawful de-tainer in the County court of Greenbrier, by Andrew A. Miller against Asa Alderson, On the trial there was a verdict and judgment for the defendant Alderson; and Miller having taken two bills of exceptions pending the trial, obtained a supersedeas to the judgment from a judge of the Circuit court.

In a suit in equity depending in the Circuit court of Kanawha county, in which Isaac Read, guardian, &c., was -plaintiff, and JE).

This was a bill filed in April 18S7 in the Circuit court of Rockingham, county, toy Robert R. Yancey against R. C. Mauck, Allan C. Bryan and others, to subject an interest in a tract of land sold by Yancey to Mauck, to the payment of a debt which Yancey insisted was a lien upon the land. The facts, as they appear from the pleadings and proofs, are as follows: Some years prior to 1850 Reyion Yancey died, leaving a widow and four children.

This is a suit for freedom, brought under the Code, ch. 106, p. 464, by Gracey and her nine children, against John A. Dice and Thomas Fulton, executors of James Pulton deceased. Verdict and judgment were rendered for the plaintiffs. The defendants took five exceptions to rulings of the court during the trial, and a sixth exception to the refusal of the court to set aside the verdict on the ground that it was contrary to the law and evidence.

Alexander Nisewander, being- entitled to an undivided fifth oi a tract of land, subject to his mother’s life estate in one-third thereof, contracted, during- his infancy, to sell his said interest to John Mustard for the sum of eight hundred dollars; and on the same day, to wit, the 16th day of January 1852, executed a title bond in the penalty of one thousand six hundred dollars, conditioned to make a good deed with general warranty to the purchaser for the said interest on…

This was a case of caveat in the Circuit court of Russell county, filed by Dale Carter against William Ramey. On the 1st of May 1857 Moses Ramey made an entry for two hundred and forty-eight acres of land on the Pound fork of Sandy river in the county of Russell; which was transferred to William Ramey; and on the 11th of May a survey of the land was made.

In 1841 Archibald W. Huston and William W. Pollock entered into a partnership for the purpose of keeping a hotel in the town of Harrisonburg, in the county of Rocking-ham; and for the purpose of the partnership they purchased a house and lot, which was afterwards known as Pollock’s hotel. By the terms of the partnership the house was to be kept by Pollock. In 1843 they purchased another house and lot which had been known as the Washington tavern.

In 1851 John Bowyer of the county of Rockbridge died intestate, leaving a large real and personal estate, *and a widow and eight children. One of his children was Frances H. the wife of George B. Poindexter.

xThis was an action of trespass on the case, brought in September 1854 in the County court of Warren county, by William Davy against Samuel M. Spongier, for maliciously suing out an attachment against the property of the plaintiff.

, This was a bill filed in the Circuit court of Petersburg in January 18S6, by Qrandison F. Marks and *others, judgment and execution creditors of Hill & Nichols, to set aside a deed of trust executed by William R. Hill and Dudley Nichols, to R. R. Collier in June 1854, to secure certain debts therein mentioned, upon the grounds that upon its face it was fraudulent in law and void as to creditors.

Nathaniel Seaburn, late of the county of Warwick, died without issue (having never been married), leaving- a will bearing- date the 7th day of January 1S59, which, after providing for a sale of all his estate, real and personal, on certain terms therein mentioned, contains the following clauses: “3d. 1 desire my executor to see to and have built, a good and comfortable brick church, on the land attached to Mulberry island church, and to pay for the game out of money arising-…

This was an action on the case in the Circuit court of Henrico county, instituted in Majr 1850 by Nelly C. Willis against Haxall, Brothers & Co., to recover the price of a quantity of wheat which the tilaintiff alleged she had sold and delivered to the defendants. The parties agreed to dispense with a jury and submit the whole case to the court.

The first of these cases was an action of trover in the Circuit court of the city of Richmond, brought by Crenshaw & Fisher, millers and partners, against Daniel S. Delaplane, the public inspector of flour in the city of Richmond, to recover the value of a quantity of what is called draft flour; that is, flour taken from the barrel by the inspector for the purpose of the inspection.

This was an action of assumpsit in the Circuit court of Powhatan county, brought to August rules 1855, by Edwin Wortham & Co., merchants and partners, against Josiah Smith and Erancis J. Sampson, late merchants and partners trading under the name and style of Smith & Sampson, to recover the sum of twelve hundred and eighty dollars and twelve cents, for goods, wares and merchandise sold and delivered by the plaintiffs to the defendants.

Tilia was an action of debt broug-ht by “•The City Savings Bank” at Lynchburg, in the Hustings court of that city, against .Robert G. H. Kean, administrator of James M. Boyd, on two notes negotiable and payable at the office of discount and deposit of the Bank of Virginia at Lynchburg, drawn by Paul Jones, and endorsed by said Boyd; one of them for two thousand dollars, dated May 22d, 1855; the other for one thousand two hundred and fifty dollars, dated July 17th, 1855, and…

This was a bill in the Circuit court of the city of Richmond, filed by the administrator and some of the children of William Evans deceased, ag-ainst his widow and other children, two of whom were infants, for a settlement and distribution of his estate. The widow thinking that the administrator did not attend to the interests of the estate, took upon herself its defence.

These were two actions of debt in the Circuit court of Bedford county, each founded on an injunction bond, and relating to the same judgment. Some time prior to the year 1821 Pleasant Creasy, having recovered a judgment against William Trigg, sued out an execution thereon, which was levied by *the sheriff'Upon a slave named Patrick.

In Januarj- 1859 Abraham Warwick and William J. Barksdale presented their petition to the Circuit court of the city of Richmond, praying the court to prohibit Joseph Mayo, the mayor of the city, from imposing a fine upon them, for placing an obstruction in what was said to be 12th street.

Prior to May 1817 William Hepburn, of the city of Alexandria, departed this life, having- first made his will, which bears date in February of that year, and which was duly admitted to probate in the Orphan’s court of Alexandria county.

This was an action on the case in the Circuit court of Alexandria county, by Richard C. Mason aguinst P. Stockton Chappell. The declaration contained two counts. The first was for the breach of a warranty, upon the sale by the defendant to the plaintiff of one hundred and fifty barrels of a manure called “Chappell’s fer-tiliser ’ the second was the common money counts in assumpsit.

This was an appeal from the decree of the Circuit court of Pittsylvania, in a suit instituted by the children of Henry Toler deceased, against Crafton Bennett and others. Held: the lawful born only were intended by children in the statute of descents, which in our statute is distinctly shown, by the special clauses therein for bastards, when their relief was intended.

At the November term 1858 of the Circuit court of King- & Queen county, Robert B. Bristow was indicted, for the murder of B. J. Gogerty. He was put upon his trial at the same term; but the jury not being able to agree upon a verdict, was discharged.

This was ail indictment for betting- on an election, in the Circuit court of Augusta county. The facts are fully stated in the opinion of Judge Robertson.

At the October term 18S8 of the Circuit court of Jackson county, the grand jury indicted Henry Young, for that he “unlawfully and without having a license therefor according to law, on the home farm of Charles Carney, in the said county of Jackson, and within the jurisdiction of the Circuit court for said county, did sell, by retail, wine, ardent spirits, and mixtures thereof, contrary to the form of the statute,” &c. At the Hay term of the court for 18S9 the defendant…