Volume 20 — Virginia Reports

John ~W. Helms, of the county of Floyd, died in August, 1862, intestate, leaving eleven children his heirs at law and distributees; and leaving a valuable tract of land and a number of slaves. His son-in-law, Fleming Howery, and his son, George M. Helms, qualified as his administrators..

This was an application to this court by -Henry K Ellyson, mayor of the city of Eichmond, Thomas IT. Dudley, sergeant of the city, and other city officers, for a writ of prohibition, to restrain the judge of the Hustings court of the city and the sergeant of the city from issuing and enforcing the writ of election which the judge had directed to be held for the purpose of electing a mayor of the city and other city officers, and asking that the said writ might be superseded.

The January term 1870 of the military Court of Appeals of Virginia commenced on the 11th of that month, and was terminated on the 25th of February following. On the 31st of January the court decided ■the case of Griffin’s ex’or v. Cunningham, reported 19 Grattan 571, and on the 14th of February the court •decided the case of The Washington, Alexandria and Georgetown R. R. Co. v. The Alexandria and Washington R. R. Co., reported in the same volume, p. 592.

<p>B„ by his will, dated in November, 1848, and admitted to probate in February 1850, gave land and personal estate for the establishment and support of a school in a certain neighbourhood in Washington county; and he appointed certain persons trustees to carry out his devise, with power to fill vacancies in their body. L was appointed one of the trustees, and president and treasurer of the board, and he was also executor. The treasurer was to receive ten per cent, on the money he paid out. The school was established; and L settled his accounts before a commissioner, which shewed a balance in his hands of principal and interest §3,701 44, on the 1st December, 1859. He died during the war; and in 1866 the then acting trustees filed their bill against his administrator and securities to recover the money in his hands. Held :</p> <p>1. At common law the devise and bequest was illegal and void.</p> <p>2. But by the act of April 2,1839, concerning devises and bequests made to schools, &c., and the act of 1840-41, Code, ch. 80, £ 2, it was made valid, though it had not been reported to the general assembly, as directed by $ 7 of said first act, and no act had been passed incorporating the institution.</p> <p>3. The trustees could maintain the suit. But an act having been passed, since it was commenced, incorporating the institution, the corporation should be made a party, and the decree should be for the payment of the money to the corporation.</p> <p>4. L. is not to be charged interest upon the whole balance found against him ih December, 1859, but is to be charged interest on the principal from that date.</p> <p>5. The commissioner having made a special statement of the account, at the instance of the defendants, they cannot object that it is not stated on the basis of an executorial account.</p>

<p>1. Where the record of a court appears on its face to have been regularly signed by the judge who presided at the trial of a cause, parol evidence is not admissible to shew that the proceeedings had not been read in court, and that the record was not signed by the judge until some days after the adjournment of the court for the term.</p> <p>2. A judge by military appointment in Virginia, holding a court and trying a criminal after the admission of the State into the Union, his act is valid.</p>

<p>1. Whether a court of equity will direct an issue to be tried by a jury is a question of discretion; but it is a sound judicial discretion, and if improperly exercised, an appellate court will correct it.</p> <p>2. When the allegations of the bill are positively denied by the answer, and the plaintiff has failed to produce two witnesses, or one witness and strong corroborating circumstances, in support of the bill, it is error in the chancellor to order an issue. No issue should be ordered until the plaintiff has thrown the burden of proof on the defendant.</p> <p>8. Plaintiff seeks to set aside his deed and contract, on the ground that he was, at the time, of unsound mind and incapable of making the contract. Quaere: If the denial, in the answer, of the unsoundness of mind and incapacity, is the denial of a fact which puts the plaintiff upon the proof of it by two witnesses, or one witness and strong corroborating circumstances, or merely puts him upon proof of the fact by such evidence as may be satisfactory to the court?</p> <p>4. In such case the testimony of witnesses present at the factum, and the written acts of the party attesting his capacity, is more to be relied on than the opinions of other witnesses, based upon facts which may be true, and yet not be the result of unsoundness of mind.</p>

This is a writ of error to a judgment of the Hustings court of the city of Richmond, rendered on a writ of habeas corpus.

<p>1. A deposition of a party, to be read in a pending cause at law, was commenced before tbe passage of tbe act of March 2d, 1866, Sess. Acts, 1865-66, p. 86, which required that parties should testify, ore tenue, but it was not completed until that law went into effect. The deposition is inadmissible as evidence, if objected to.*</p> <p>2. Inchoate rights derived under a statute, are lost by a repeal of the statute before they are perfected, unless they are saved by express words in the repealing statute.</p> <p>3. The act, ch. 16, § 18, of the Code, edi. 1860, does not save the right to a party to a suit to give evidence by his deposition, where the taking of it was commenced before the passage of the act of March 2, 1866, but was not completed until that act was passed.</p> <p>4. The act of March 2,1866, held under the circumstances not to be in conflict with $16, article 4, of the Alexandria constitution.</p>

This was a bill filed in the Circuit court of the city ■of Richmond, by Phelan & Collander, merchants and partners doing business in the city of New York, against Jones & Griswold and Thomas M. Jones.

This is an. appeal from a decree dissolving an injunction to a sale under a deed of trust, and directing the sale to he made.

Tn December, 1866, ¥m. N. McVeigh instituted an action in the Circuit court of Richmond against the Southern Express Company. The declaration contained four counts. The first count set out that the defendants were a corporation doing business in the States of Georgia, North Carolina and Virginia.

This was an action of assumpsit in the Circuit court of the city of Bichmond, brought in December, 1868, by Albert Speyers, a gold broker of New York, against A. Yance Brown, to recover the amount of commissions due to, and losses sustained by, the plaintiff, upon purchases and sales of gold which he alleged he had made for Brown. The declaration contained only the money counts.

In October, 1867, M. Oolien instituted an action of assumpsit in the Circuit court of tbe city of Ricbmond, against tlie Home Insurance Company, of New Haven, Connecticut, to recover tbe value of certain goods wliicb bad 7)6611 insured by tbe Company, and bad been destroyed by fire.

In May, 1867, David J. Saunders and Samuel C. Tardy, trustees of the Dank of Virginia, instituted an action of debt, in the court of Hustings of the city of Portsmouth, against Vm. White\ as maker, and John R. White and Arthur Emerson as endorsers, of a negotiable note, dated the 5th of February, 1862, and payable eighty-eight days after date, for thirteen hundred and fifty dollars, and $2 65, charges of protest, which was discounted by the Bank of Virginia at Portsmouth.

<p>1. The act of March 29, 1862, to provide a currency of notes of les» than five dollars, was intended to be temporary in its operation.</p> <p>2. The city of L, on the 8th of May, 1862, passed an ordinance for the issue of $120,000 of small notes, and directed its treasurer to exchange them for coin or currency, which should be held or invested for the redemption of the notes. From May 8, to October, $72,418 was received in currency in exchange for the notes, of which $68,000 was invested in Confederate bonds, and the balance was held in hand. The notes were directed to express, and did express,, on their face—received in payment for city taxes and all other city dues. The city did not levy a tax for the redemption of the notes.</p> <p>Held :</p> <p>1. The notes were issued and received with reference to Confederate currency as a standard of value.</p> <p>2. By the act the notes were required to be redeemed within the period prescribed by the act.</p> <p>3-, The city of L. having provided for the issue of her notes, under the act of March 29, the act of May 15, extending the-time of redemption, does not apply to the notes issued by that city.</p> <p>4. The city of L. having provided ample funds for the redemption of her notes, she was not required to levy a tax for their redemption.</p> <p>5. Some of these notes not having been presented for redemption within the time prescribed by the act of March 29, the holders of them are not entitled, after the war, to set them off against taxes due from them to the city; and the fund which had been provided and held ready for their payment, having perished, without fault of the city, the city of L. is not under any obligation in law or equity, to redeem them.</p>

<p>1. In an action on the case for damages to plaintiff’s land, there is the plea of not guilty, on which issue is joined’, and there is a special plea, to which there is a special replication concluding to the country. To this there is no rejoinder, and the record does not say that issue was joined upon it; but the parties go to trial, and the subjects of the special plea and replication are contested before the jury, which renders a verdict for the plaintiff. No objection having been taken to the want of joinder of issue in the court below, it seems that the objection cannot be taken in the Appellate court.</p> <p>2. In such a case if the subject of the replication is such that the defendant cannot rejoin special matter without a departure from the defence set up in his plea, but must take issue upon the replication, the nonjoinder of issue will be cured by the statute.</p> <p>3. Two actions on the case are brought in the same court at the same time, by the same plaintiff against the same defendant. The same act of defendant is charged as the cause of the damage in each case; but the damage in one case is charged to be to the plaintiff’s land, and in the other to the crops grown and growing upon it. The case as to the crops is the first tried, and the evidence is as to the crops, and there is a verdict and judgment for the defendant. This verdict and judgment cannot be set up as an estoppel to the plaintiffs in the other action for damages to the land.</p> <p>4. A railroad company has the land of R. condemned for its road, and the commissioners assess the damages, and their report is confirmed, and the company pay the amount of the damages assessed to R. R. sells the land to D. D. may maintain an action against .the company for injury to his land done since the purchase, which could not be foreseen and estimated for by the commissioners.</p> <p>5. In such cases the assessment of damages is only a bar to an action for such injuries as could properly have been included in such assessment. The commissioners are bound to presume the company 17111 construct its works in a proper manner, and they have no right to award damages upon the supposition that the company will negligently and improperly perform its work. A failure to do so by the company will, therefore, impose a liability to any one who may sustain any loss or injury by reason of such negligence.</p>

<p>.1, In November, 1862, S. sells to K. a house and lot in Richmond, for §14,500, of which §4,500 is paid in cash, and notes with interest for the balance are given, payable in one, two, three and four years, with a deed of trust to secure them. The cash payment, and first and second notes, are paid in Confederate money, the third is paid four months before it fell due by a compromise, S. taking for it §2,000 in U. S. currency. Bill to enjoin the sale of the house and lot for the payment of the fourth note, alleges that it was given with reference to Confederate currency as the standard of value, and prays that S. might be required to receive payment according to the value of that money at the time of the contract. S. denies this was the contract, and says he was to be paid in the currency of the time the note fell due, and asks the court to adjudicate the question. Held :</p> <p>1. The court may refer the case to a commissioner, to enquire whether the contract was made with reference to Confederate money as a standard of value, or whether the notes were to be paid in the currency of the time they fell due.</p> <p>2. It is not a case in which the court should have directed an issue. And this especially as there was no conflict of testimony when the case was referred to a commissioner.</p> <p>3. In what cases court may refer a case to a commissioner, see the opinion of Moncure, P.</p> <p>4. The interest being included in the note, if there is a decree for the payment of the note, it is proper to decree interest on the whole amount.</p> <p>5. The court being of opinion that the note should be paid in the currency of the time it fell due, may decree in favor of S. against K, for the amount.</p> <p>6. It was irregular, after decreeing in favor of S., to dismiss the-hill; and the appellate court will correct the decree in this-respect, and affirm it, with costs:</p> <p>7. The decree should reserve liberty to S. to apply to the court,, by motion or petition in the cause, for a sale of the house and lot under the trust, if the personal decree against K. failed to produce the money: This, too, the appellate court will correct, and affirm the decree.</p>

This was an appeal by O. H. Chalkley from the refusal of the auditor of public accounts to pay a claim presented by Chalkley against the State for leather and findings, furnished by him to the penitentiary, from November 4th, 1861, to February 25th, 1862, amounting to $6,750 08. There was no doubt that the articles were furnished to the penitentiary by Chalkley.

<p>1. The 7th section of the act of March 3, 1866, entitled an act imposing a duty on oysters, imposes a tonnage duty, and is, therefore, in violation of the constitution of the United States, article 1, $ 10.</p> <p>3. A statute requires the captain or other officer of a vessel engaged in the oyster trade to take out a license. A number of such captains or officers may unite in one bill to enjoin the sale of their vessels, and test the constitutionality of the act.</p>

<p>N, living in the country, employs M, a broker in Richmond, to invest his moneys in Missouri bonds. In November, 1862, M invests at $112 50, and February, 1863, he invests at $125. In March, N sends a claim upon the Confederate government to M for collection, and tells of other funds which will be paid in to M in May, and directs him to invest in Missouri bonds. M collects the claim, and invests it at $160, and so writes to N. The 23d of May the fund^ spoken of by N is received by M, and then Missouri bonds have advanced seventy or eighty per cent, above the last investment, and are difficult to be gotten. On the 29th of June M writes to N, acknowledging the receipt of this fund, stating that Missouri bonds were then at 230 to 235, and asks whether he shall invest at the advanced price when to be had. M receives no answer to his inquiry, and therefore does not invest the money in his hands ; the Missouri bonds continuing to advance in price. Held: M was justified in waiting for further instructions, and is not liable to N for the loss.</p>

<p>1. G makes his note, which is endorsed, and makes a deed of trust on land to securest, and puts it in the hands of L, a broker and banker, to sell; and L advances to him nearly as much as it is expected will be the net proceeds of the note. On the next day, L offers the note to 0 at one and a quarter per cent, per month discount. C says he has no money, but L, who has on deposit notes of C coming soon to maturity, proposes to advance the money for him; and 0 agrees to take the note, if, after examining the title to the property, he is satisfied. L thereupon advances to Gr the whole of the net proceeds of the note. C examines the title and is satisfied, and in sixteen days afterwards he pays L the money he had advanced for him, and interest upon it for the sixteen days. C has no knowledge of the character of the note, or for whose benefit it is sold. This is not usury.</p> <p>2. In a bill of exceptions to the refusal of the court to grant a new trial, the evidence, and not the facts proved, is stated. If all the evidence was introduced by the exceptor, the Appellate court will not review the judgment; but if all the evidence is introduced by the party who recovers the judgment, the Appellate court will review the judgment, and, if taking it all as true, the verdict and judgment is erroneous, will reverse it.</p>

This was an action of assumpsit in the Circuit court of Loudoun county, brought in August, 1866, by the Bank of the Old Dominion against Townshend McVeigh. The object of the suit was to recover the amount of three negotiable notes executed by McVeigh and discounted by the bank.

<p>1. The board of supervisors of a county have authority to provide land' for building a courthouse, clerk’s office and jail, either by purchase or by proceeding to have it condemned in the mode prescribed in the Statute. Code, ch. 56, s. 6-16, p. 324-326.</p> <p>2. The board of supervisors of a county have authority to sell the lands-belonging to the county, on which the courthouse and other public-buildings once stood.</p> <p>3. It is for the board of supervisors to determine what land they wilL procure for the public buildings of their county; and, whether their-discretion is wisely or unwisely exercised in the selection, cannot beenquired into in the proceeding instituted to condemn the land.</p> <p>4. In the act authorizing the condemnation of land for public purposes,. Code, ch. 56, the tenant of the freehold referred to in s. 7, is the tenant in possession appearing as the visible owner.</p> <p>5. The board of supervisors proceeding to have certain land condemned for the purpose of building thereon a courthouse, clerk’s office and jail, and the persons whose land is proposed to be condemned, not objecting to the report of the commissioners, other citizens of the-county have no right to make themselves parties in the proceeding, and object to the confirmation of the report.</p> <p>8. In such a case the Circuit court of the county has no jurisdiction, on the application of these citizens, to award a writ of error and supersedeas to the judgment of the County court refusing to admit such citizens as parties, and confirming the report of the commissioners.</p> <p>9. To entitle any person to appeal from a judgment, he must be a party in the cause, and must be aggrieved by the judgment.</p> <p>10. The Circuit court having no jurisdiction, on the application of persons not parties to the proceeding, to revise the judgment of the County court, the writ of prohibition is a proper proceeding to restrain him from proceeding in the case.</p> <p>11. Though it is a general rule that a writ of prohibition will not be’ awarded without requiring the plaintiff (if the defendant insists upon it) to file a declaration; yet, when the application for the writ is to the Supreme Appellate court, it may be dispensed with, if the court is satisfied that the merits of the case is presented fully on the petition and answer.</p>

<p>In November, 1865, Otis F. Manson instituted an action of debt in tbe Hustings court of the city of Richmond against Elizabeth Magill, to recover the amount of a bond for $2,626j with interest thereon from the 13th of May, 1862, executed by the said Magill to Manson. And at the same time he sued out an attachment against the property of Mrs. Magill, which was levied on the building owned by her, called the New Richmond Theatre, and a lot of household and kitchen. furniture.</p> <p>Up^n the issue of the attachment, Mrs. Magill filed pep pip the Oircuit court of the city of Richmond. against Manson, in which she charged, that in the-month of August or September, 1863, Dr. Manson, who-was ^ habit of visiting her often, and professed to-be one of her best friends, lent her the sum of five-thousand dollars in Confederate money, and sold her a parcel of bacon, valued, in Confederate prices, at two thousand dollars; but which proved to be unsound and of no value whatever; for both of which she executed and delivered to him her note for seven thousand dollars. The said Manson held the said note until the 29th of April, 1865, when he came to her with it and proposed to her to execute a new note to him for twenty-six hundred dollars; saying that Mr. John D. Allen and himself had decided that was the value of her obligation for $7,000, which he held. And she, being ignorant of the value of Confederate money at that time, and of her rights and obligation in the premises, and confiding in the representations, as well as the integrity of the said Manson, and his repeated assurances of friendship for her, complied with his request, and executed her note or bond; for she knew not the difference between bond and note, and does, not know whether the paper had a seal to it or not, and delivered it to him, without taking from him the original note for $7,000. Rot long afterwards she ascertained what a mistake she had made, and how great, a fraud her friend Manson had practiced upon her, and she sent for him to her house, and requested him to restore her note for $2,600, and 'proposed in return to pay him for his seven thousand dollars its value at the time of the loan. She afterwards offered to pay him $1,200, which was more than twice as much as it was worth, in discharge of her obligation; which he refused. And he has taken out an attachment against her, on the pretence and false affidavit that she intends to remove her effects from Virginia. She prays for an injunction to all proceedings upon the attachment ■until the matters alleged in the hill can be heard in a court of equity. That Manson may be compelled to produce the notes or bonds, as they may be, of the plaintiff; that the court will say upon what terms the note of $7,000 shall be settled by her, and delivered up to her; that the note for $2,600 may be cancelled, as executed by mistake on her part and fraudulently procured by Manson; and for general relief.</p> <p>Manson answered the bill. He said that prior to March, 1863, he had been purchasing through agents, for the use of his own family, provisions, in the State of Horth Carolina, where he had lived for many years prior to the war, because he could procure them at prices very much below the rates prevailing in the city of Richmond. That being in attendance upon R. D. Ogden, a member of the family of the complainant, and the manager of her theatre, he frequently saw the complainant, and being on friendly terms with her, he, in the course of his visits, mentioned to her the fact that he was purchasing supplies in the manner herein stated, for his family; and thereupon she requested the favor of him to procure for her, in the same way, a supply of bacon for her family use, and to advance the money for her to pay for it. This he consented to do, and did procure for her a quantify of bacon costing the sum of $2,000; which he advanced. This was in March, 1863. He did not sell her the bacon as charged in the bill, or derive the slightest advantage from the transaction. Several months after she had received the bacon she informed him that some of it was unsound, and attributed the unsoundness to the fact that she had put it away in an improper place. He saw the bacon when it was delivered, and knows it was sound at the time.</p> <p>He says further, that in August, 1862, he purchased a residence in the city of Richmond, and therefore determined to sell his farm upon which he had resided in Horth Carolina. This farm, which had cost him, about the year 1857, $9,000, he sold at public auction, in December, 1862, for $10,000 in Confederate money, his object being to pay off the purchase money for the residence purchased in Richmond; but he was unable to do this, because a party living out of the State held a lien upon it for $2,636. That finding it impossible to pay off this lien, he determined to reinvest the money he had on hand in other real estate, so that he would be in a condition to meet the outstanding lien upon his house when the creditor could be found; which he supposed would not be until after the war. He received the last payment for his land in July, 1863, and in the next month the complainant applied to him to lend her $5,000, in addition to the $2,000 previously advanced for her, and he agreed to do so and let her keep' the whole amount of $7,000 during the war, provided she would agree to pay him the amount in legal currency at the end of the war. This the complainant agreed to do, and executed to him her bond for $7,000, payable on demand. In the summer of 1864 he, at her request, purchased for her, through his agent, two barrels of flour, for which he advanced the money; and after keeping it until the winter she complained of it, and he took it back and sent to Uorth Carolina and purchased two other barrels, for which he paid $1,000 a barrel, and for which the complainant has never paid him a cent. That being a surgeon in the army he practiced his profession in the city of Richmond, and he frequently prescribed for the complainant, and at her request for members of her theatrical company.</p> <p>He further states, that a few days after the occupation of the city of Richmond by the federal troops, the complainant saw him at the theatre, and requested him to call at her house; and she then informed him that she wished to have a settlement of their affairs, and she would settle upon any terms he would state; that he had been the best friend she ever had, and the only one of her creditors who had not troubled her for money. After this interview at the theatre, and before calling upon the complainant, he called upon Mr. John 1?. Allen, in whom he knew the complainant had great confidence, to consult him on the subject. The defendant believed he had the legal right to demand the sum of $7,000 in currency, upon the bond of the complainant, but he felt unwilling to do so, and informed the said Allen that he intended to propose to her that if she would assume the payment of the outstanding lien upon his dwelling-house, amounting to the sum of $2,636, with interest from the 13th day of May, 1862, he would give up her bond and all other claims he had upon her. Allen said that he thought the proposition was exceedingly liberal and generous, as the defendant had the undoubted right to demand the amount of the bond in currency. After the consultation with Allen defendant called to see the complainant as she had requested, and stated to her what had passed between Mr. Allen and himself, and that he had drawn up> a bond for the amount due upon his house, and was willing to accept that in full of all claims and demands he had against her. The complainant declared that she would not only sign the bond most willingly, but that she was most grateful to him for his kindness. This was on the 29th of April, 1865. After executing her bond for $2,636, as aforesaid, and before the defendant left the room, she asked him to let her see the bond aa:ain, that she wished to take down the amount of it. He handed her the bond and she put down the amount on the bond of $7,000, and then put the last mentioned bond away in her secretary, remarking, as she did so, that she always filed away her papers. He had never seen this last mentioned bond since. At that tinie no court of conciliation had been established, and no rule had been adopted as to the mode of settling-even those debts contracted to be paid in Confederate currency. He denies that the complainant requested him to restore her note of $2,600, and proposed to pay him, for his $7,000, its value at the time of the loan. He mentions several interviews between himself and the complainant, and says that he was still unwilling-to sue, but having heard that she was going to Prance and had sold some of her real, estate, and believing that unless he took out an attachment against her estate as provided by law, he would ultimately loose his debt, he instituted legal proceedings for its recovery.</p> <p>The plaintiff and defendant were each examined as. a witness. The testimony of the first went to sustain the allegations of the bill, and that of the defendant to sustain his answer. There were also several witnesses who spoke of the bacon, giving very different accounts of it.x</p> <p>In May, 1867, the plaintiff filed a supplemental bill' in the cause. She says that soon after she filed her bill she went to New York, and had just returned, and since her return had for the first time seen and read the answer of defendant Manson; from which she-learned that, instead of executing a note or bond to him for $2,600, as of the 29th of April, 1865, he had obtained of her fraudulently, by reason of her great confidence in him, a bond for $2,636, bearing interest from the 13th of May, 1862. She charges that the-procurement of the bond was a deliberate fraud by the-said Manson; and she charges that his entire statement in relation to it in his answer is utterly false, so far as it imputes to her any knowledge of or purpose to sign such a bond. She charges that he falsely denies that he retained the bond for $7,000, but affirms that it was payable in legal currency after the war. - And she says that she has conversed with John I\. Allen, and he assures her he never authorized the said Manson to make any such representation as he states in his answer; but, on the contrary, that he told Manson that he ought to settle the bond at what the money was worth when he loaned it.</p> <p>Manson, in his answer to this bill, refers to his former answer, and makes it a part of this. He says the supplemental bill is but a reiteration of the statements of the original bill—statements which he believes the plaintiff well knew to be false when she. made them. She knows well that he did not act fraudulently in the •matter; and she did know the amount of the bond for $2,636, and the purpose for which it was drawn; and she made it as a compromise settlement or adjustment of all claims against her. And he denies the statements of the supplemental bill as to this bond, or that he has had the bond for $7,000 since the day the bond for $2,636 was executed; and he believes she has that bond in her possession. And he insists that the evidence of Allen, taken in the cause, substantially supports his statement.</p> <p>Allen, in his testimony, says: Hr. Manson stated to me he loaned Mrs. Magill, or in other words she was indebted to him early in the war, seven thousand dollars; there was a lien on his house, at the close of the war, for two thousand and odd dollars; I do not know what the amount was. That he was willing to compromise with her for the seven thousand dollars, for an amount equivalent to the lien on his house. I told him I thought it was a liberal proposal he had made. I think Dr. Manson told me that, at the time he loaned ,the money, it was very slightly depreciated; my impressioii was, it was equal to the bank notes then in circulation.</p> <p>. In Way, 1868, the court made a decree that the parpers in the cause be referred to one of the commissioners of the court, who is directed to enquire into- and report:</p> <p>1st. "What ivas the consideration of the bond for twenty-six hundred and thirty-six dollars, executed by the plaintiff to the defendant.</p> <p>2d. "Whether the defendant, at the time of the execution of said bond, obtained the same of the plaintiff by fraudulent misrejiresentation of the value of the debt due him by the plaintiff or otherwise.</p> <p>3d. What were the circumstances attending the execution of the said bond; what representations were made by the defendant to induce the plaintiff to execute the said bond; whether the plaintiff was influenced by said representations, and whether they were true or false in fact.</p> <p>4th. Whether the plaintiff executed said bond of $2,636, under a mistake as to the value of Confederate money, or any other material fact.</p> <p>5th. What was the amount of the debt due and owing to the defendant by the plaintiff, at the time of executing the bond, and how and when such debt or debts was or were contracted, and how and when such debt or debts was or were to be paid.</p> <p>6th. From what source any sum or sums of money loaned by the defendant to the plaintiff was or wei*e derived.</p> <p>In December, 1868, Commissioner Pleasants filed his report. He says he proceeded to examine the papers in the cause, and upon this examination (no other evidence having been introduced before him) he reports. He responds to each of the enquiries directed by the court, sustaining the view of it given by the defendant. To the report the plaintiff filed various exceptions; hut it is not necessary to state them.</p> <p>"Whilst this cause was before the commissioner, viz: - in January, 1869, Manson filed a cross-bill in it, in which he stated that he had sued out an attachment at law against the effects of Mrs. Magill, which was still pending; but the papers in that case had been lost or mislaid. That Mrs. Magill had filed the bill in this case. That, though the attachment suit was pending, Mrs. Magill had gone on to dispose of her property, as if the said attachment was not pending; and that she had just contracted to sell to Conrad Sauer a valuable piece of land, with the improvements thereon, in the city of Richmond, for $6,875, and that Sauer was about to pay the purchase money in part, and execute bonds for the residue. That he has a just claim against Mrs. Magill for $2,636, with interest thereon from the 13th of May, 1862, until paid. That' Mrs. Magill has absented herself from Virginia for several months, and he believes she is not a resident of this Commonwealth. That her purpose seems to be to dispose of all her property. He therefore asks that Mrs. Magill and Conrad Sauer may be made defendants to the bill. That he may have a decree against her for the amount of his' claim, and that the purchase money in the hands of Sauer, for which he has executed his bonds, and the cash payment, in the hands of Wellington Goddin or Lancaster & Co., her agents, may be attached to satisfy his claim; and that Mrs. Magill, her agents, &c.,maybe enjoined and restrained from assigning, conveying away or otherwise disposing of the said bonds, so executed by Sauer; and for general relief.</p> <p>The subpcena and attachment were served on Sauer, and the bill was taken for confessed as to him.</p> <p>In February, 1869, Mrs. Magill appeared and demurred to the bill for want of equity, .and because there was another suit pending in the court for the same cause of action. She also answered. She denies that she is indebted to the plaintiff in the sum of §2,636; and refers to her former bill and amended bill. She repeats the charges of fraud by Manson in procuring the bond for §2,636. She says that, when he instituted his suit at law, he sued out an attachment against her property, and levied it on the Richmond Theatre, worth sixty thousand dollars; and she gave bond and security, as required by law, to satisfy the plaintiff’s recovery, if any, and so discharged the attachment ; and she insists that this second suit, for the same cause of action, is illegal and void. She denies that the papers in the first suit are lost, and exhibits a copy of the attachment and the return of the officer thereon; the said suit having been removed from the Hustings to the Circuit court.</p> <p>The court having required Manson to elect whether he would prosecute his suit at law or the suit in equity, he elected the latter, and on the 6th of March, 1869, on his motion, the action at law was dismissed.</p> <p>On the 8th of March, 1869, on the motion of Manson, and against the protest of the plaintiff' Magill, the causes came on to be heard together, when the court overruled the exceptions of the plaintiff Magill to the commissioner’s report in the first, and made a decree against her in favor of Manson for §2,636, with interest from the 13th day of May, 1862, until paid, and his costs. And it appearing from a statement agreed to by the parties, that the debt of Sauer to Mrs. Magill consisted of four bonds, all bearing date the 8th of December, 1868, and payable respectively at four, eight, twelve and sixteen months from their date, each for §1,208 06, the court further decreed, that unless Mrs. Magill should pay the said principal sum, interest and costs, within thirty days from the entry of this decree, then that Sauer, in discharge of his first and se•cond bonds, should pay the amount, as it fell due, to Manson, which was to be credited upon his decree against Magill; and these payments still leaving a bal- ■ anee due to Manson upon his decree, Sauer was directed to pay the amount of his third bond, when it fell due,.into bank, to the credit of the court in this cause; and Manson, or his counsel, was authorized to check on the fund for the balance of his decree. Aid upon the payment of these bonds, as directed, Mrs. Magill was directed to deliver the bonds to Sauer.</p> <p>From this decree Mrs. Magill obtained an appeal to this court.</p>

This ease grew out of the next preceding case of Magill v. Manson. After an appeal had been taken by Mrs. Magill in that case, and whilst it was pending iu this court, the trustee in the deed executed by Conrad Sauer, to secure the purchase money of the property purchased of Mrs. Magill, by her directions advertised the property for sale at public auction, for the payment of the purchase money, all of which had then become due.

In October, 1867, Anthony L. Bargamin and Clifford Bargamin, two of tibe heirs at law of Caleb Lownes, deceased, filed tbeir bill in equity in the Circuit court of the city of Richmond, against John Clarke and others, the heirs at law of Henry Clarke, deceased, and the other heirs of Caleb Lownes, deceased, and T. W. Boswell, to recover a lot lying on Franklin street, in said city; it being the same lot which was the subject of controversy in the cases of Mitchell & al. v.…

This was an action of assumpsit, in the Circuit court of Pittsylvania, brought in February, 1867, by William T. Sutherlin against the town of Danville, to recover three years’ interest upon a certificate of debt of said town for five thousand dollars, bearing date the 1st of September, 1863, and payable in twenty years from its date, with interest at the rate of six per cent, per annum, payable semi-annually.

<p>1. City bonds, payable thirty years after date, and bearing six per cent. per annum interest from their date, sold in 1864, for Confederate money, at the rate of ty for one, when Confederate money was at the rate of twenty to one for gold. This is usury.</p> <p>2. The fact that these bonds might be paid in the currency which at the time they fell due, would be taken by the State for taxes, does not constitute such a contract of hazard as relieved it from the taint of usury.</p>

<p>In July, 1857, W., of Richmond, obtains from the M. Ins. Co. of New York, through their agent in Richmond, a policy of insurance for the life of S. his debtor, forfeited if premiums not paid on the day. An endorsement on the policy says: no payment of premiums-binding on the company unless the same is acknowledged by a printed receipt, signed by an officer of the companyPayments of premiums are paid and such receipts given, signed by an officer in New York, countersigned by the agent here to whom the money is-paid, until 1861; when the premium is paid to the agent here, but. only the receipt of the agent here given for it; and the company-does not receive it. In July, 1862, W. offers to pay the premium to the agent here; but he declines to receive it, the company having, directed him that the premiums must be paid in New York. Bodies in November, 1862. The M. Ins. Co. is liable to W. for the-amount of the insurance, less the last premium which he had not. paid.</p>

<p>E is entitled to a decree for the sale of real estate to pay a debt due to him, secured by a deed of trust upon the property; but before the decree is made, T, by petition in the cause, alleges that he holds a prior lien upon the property to secure a debt due him; and he exhibits his bond and deed of trust. It is error to decree a sale of the property, and that the proceeds of sale be brought into court, before passing upon the claim of T, and ascertaining whether or not it is a valid prior lien, and the amount thereof.</p>

<p>This was an action of trespass in the Circuit court •of Lynchburg, brought in March, 1861, by Langhorne .& Scott against Eobinson, the collector of the taxes of the city of Lynchburg. By the sixth section of the act incorporating the Lynchburg and Tennessee Eailroad Company, since changed to the Virginia and Tennessee Eailroad Company, it was enacted as follows:</p> <p>“ That the common council of the town and corporation of Lynchburg be, and they are hereby, authorized and empowered, by deed, bond or otherwise, to guaranty the payment of six per centum %>er annum interest to her citizens or other stockholders in the said Lynchburg and Tennessee Eailroad Company, in semiannual dividends, upon an amount not exceeding half a million of dollars.”</p> <p>To meet this guaranty the ninth section of the act provides: “That the said common council of the town and corporation of Lynchburg shall have full power and authority to assess and collect taxes upon the lands, property and persons, of all persons within the town proper and corporation, and for half a mile round,, about and beyond its present tax paying limits, for the foregoing purposes only; provided, that the assess-meats so made shall be equal.”</p> <p>• In pursuance of the authority vested in them by the said sixth section of the act, the council of the city of' Lynchburg did guaranty an interest equal to six per centum per annum on half a million of the stock of the said company; and by authority of the said ninth section, the council, in 1860, assessed a tax on lands, property and persons within the corporation limits proper- and within half a mile round these limits.</p> <p>Among those residing outside the corporate limits,, but within the half a mile round and about these limits were the plaintiffs, who were assessed with a tax off §159, for the year 1860, for the purpose of paying the interest on said stock for that year. This tax the plaintiffs refused to pay, and their property was levied on and sold by Eobinson, the collector of the city-taxes, to pay it; and they thereupon brought this action against him for the wrong and injury done to-them in so doing. IJpon the trial there was a judgment for the defendant; which was affirmed in the District Court of Appeals at Lynchburg by an equal division of the court. And Langhorne and Scott then applied to this court for a supersedeas, which was:, awarded.</p>

<p>1. A, B and C are the heirs of W, and also heirs of M, and D and E', are heirs of M. They all appoint S an agent to collect and sell land scrip due to W, and also scrip due to M. The scrip is obtained and sold, but the agent does not pay over the proceeds. All the-heirs unite in a suit for the recovery, and call for a discovery. The bill is not demurrable, either for multifariousness or because the-plaintiffs have a complete remedy at law.</p> <p>2. S having failed for twelve years to pay over the proceeds of the sale,, or to give the parties any information on the subject, he has forfeited the compensation which, by the original agreement, he was to receive.</p> <p>3. S having stated in his answer, and also in his deposition, that he sold1 the scrip for 91 cents per acre, and there being no other evidence on this point in the cause, he is to be charged at that price, with interest upon it; and not at the legal price of public lands.</p> <p>4. S having sold the scrip bona fide to E, and received the money for it,. before the scrip was issued, he may substitute E as attorney for the principal, to enable E to obtain the scrip; and this being the mode-recognized at the land office, E does not become liable to the principals, as their agent, for the purchase money.</p>

On the 19th day of May, 1869, Joseph P. Winston and a number of other persons, claiming to be creditors of the Midlothian Coal Mining Company, and suing for themselves and all other creditors and stockholders of said company who would come in and make themselves parties in the cause, filed their bill in the Circuit court of the city of Eichmond, in which they allege that they are creditors of the company to the auiount of about $40,000.

<p>Jolm 3?. May, of Petersburg, died in July, 1856,, leaving, surviving him, his wife, Margaret B. May, and two daughters. One of the daughters, Mrs. Bayly,. was a widow, whose husband died shortly before the testator, and had two daughters; both under age. The other daughter of the testator was the wife of William T. Joynes, and had a daughter and two sons; all under age. These grandchildren were all living at the date of the testator’s will, and were the only grandchildren then living; and they and their mothers were the only descendants of the testator.</p> <p>The testator left a will dated May 21, 1853, and several codicils. A question «arose whether, upon the true construction of the will, the widow took a fee simple in the real estate, except that embraced by the second codicil, and an absolute title to the personal property, or only a life estate in both. This question depended on the second clause of the will, which is as follows:</p> <p>“ 2. I give to my beloved and excellent wife, subject to the provisions hereafter declared, my whole estate^ real and personal, and especially all real estate which I may hereafter acquire, to her during her life, but with full power to make sale of any part of the said estate, and to convey absolute titles to the purchasers; and use the purchase money for investment or any purpose that she pleases; with only this restriction, that whatever remains at her death, shall, after paying any debts she may owe, or any legacies that she may leave, be divided as follows.” He then gave one moiety to three trustees in trust for the use of his daughter Evelyn and her children, during her life, paying to her five hundred dollars per annum, semi-annually; and at her death to be equally divided between them. And he gave the other moiety to trustees for the use of his daughter Margaret and her children, during her life, with the same annuity; and at her death to be equally divided between them, and the survivors of them. Out of the profits of this moiety, he wishes §500 to be paid to each of his grandsons for five years after they respectively come of age, unless their mother should deem it right to withhold it in whole or in part. And there were farther limitations over upon the death of any of the grandchildren. He appoints his wife executrix, with power to appoint executors of his will to succeed her.</p> <p>In the first codicil he provides that, in case of the marriage of his granddaughter Anna Joynes, he wishes an annnity of $500 for five years, out of her mother’s share of his estate, hut with her consent only, to he paid to Anna. And he makes the like provision in favor of Anna and Evelyn Baily.</p> <p>By the second codicil he refers to a sum of nearly $5,000 which his wife will derive from the United States, for the naval services of her father; and that he had directed an investment of $6,000, which he considers' wholly hers.If she dies without disposing of it, he wishes each of their five grandchildren, then living, to-have one thousand dollars of the principal, and the other thousand dollars of the principal and all the interest to be divided between his two daughters, for-their sole and separate use respectively. And he appoints his sons-in-law executors after the death of his wife. There was a devise in this codicil of a tract' of ‘ land to the wife of "William B. Green, about which-there was no dispute.</p> <p>To settle the construction of this second clause off the will, a friendly suit in chancery was instituted im the Circuit court of Petersburg, at Uovember term,., 1856. The bill was filed by the children of Mrs.. Joynes. Mrs. May, in her own right and as executrix of her husband, Mrs. Bayly and her children, and Mrs. Joynes and her husband, were made defendants.</p> <p>The bill insisted that Mrs. May was entitled to the real and personal property for her life only; and that the plaintiffs, who claimed to be interested in remainder, were entitled to demand from her an inventory of all such money and personal property in her hands, as she elected to hold as legatee; and like inventories, from time to time, as other money or personal property should come into her hands as legatee; and as she should, under the power given her by the will, convert one sort of property into another; and that they were also entitled to require that she should register the slaves that had come, or might-come, to her hands as legatee, as provided by the statute. Code of 1849, ch. 103, sec. 8. The prayer of the bill was, that the court would construe the will and settle the rights of the parties, and order Mrs. May, as tenant for life, to file the inventories and to make the registry of slaves, as the plaintiffs claimed they had a right to demand.</p> <p>The answer of Mrs. May claimed that she was entitled absolutely to the whole estate, real and personal, except that embraced in the second codicil; and denies the right of the plaintiffs to demand of her an inventory or a registry of the slaves. Answers were filed by the other defendants, all of which, so far as they related to the rights claimed by Mrs. May, were merely formal, and submitted the question to the decision of the court. The following facts were argued in the pleadings; that the testator, at the date of the will, was about seventy years of age, and his wife nearly as old; that the testator’s estate consisted of land, slaves, money and other personalty, worth not less than $200,000, and yielding an income of about $12,000 per annum; that the debts were of inconsiderable amount; that the husbands of the testator’s daughters were men in easy circumstances; that the testator was a man of ability and sound judgment, a lawyer of distinction ■ and great experience, and was for several years a judge of the General court.</p> <p>The case was heard, by consent, on the bill and answers, and the Circuit court being of opinion that Mrs. May was not entitled to a fee simple in the real estate and an absolute title to the personal property, as claimed by her, but was entitled only to a life estate in both classes of property: decreed that she should file the inventories, and make the registry of slaves, prayed for by the bill.</p> <p>Mrs. May, in her own right and as executrix of John E. May, dec’d, applied for an appeal from this decree, which was allowed.</p>

This was an indictment in the County court of Montgomery county, against Lewis Leftwich, found at the November term, 1868. The indictment contains three counts.

At the quarterly term of the County court of Goochland county, Willis Thompson, a colored hoy, was indicted for the murder of Alice Brown, a colored girl. The indictment contains two counts. In the first count-the prisoner is charged with having made an assault on. Alice Brown, and feloniously to have ravished her, and. that then and there, in the commission of the rape-aforesaid, murdered her by choking her and thrusting •dirt, &c., into lier nose, mouth and throat.

On the 4th of June, 1870, being the May term of the court, in the court of Hustings for the city of Richmond, an indictment for forgery was found against ‘George Cliahoon. Held: and still holds, its sessions, and had, and has, its clerk’s office and courthouse within the corporate-limits of the city of Richmond.

<p>1. The three terms spoken of in the act, oh. 208, $ 34, Sess. Acts 1866-67,, are three terms after that at which the prisoner is first held for trial. And though a prisoner has been arrested and committed to jail, or gives bail to appear and does appear, or is brought into court, on the-first day of a term of a court, that term is not to be counted as one, of the three terms aforesaid.</p> <p>2. The third section of the third article of the constitution, in relation to. the qualification of jurors, does not operate proprio vigore, and. without any legislation on the subject, to repeal all existing laws in conflict therewith; but until such legislation is had the existing law continues in force.</p> <p>3. Under the second and fourth sections of the schedule to the constitution, the act in force at the time of the adoption of the constitution regulating juries in criminal cases, not having been since altered,, the venire facias for the trial of a prisoner for felony should be conformed to that act.</p> <p>4. On a trial for the forgery of a note of H., who is dead, the Commonwealth may prove that H. was prompt in the payment of his debts, and that he owned a large property—real and personal—and was. doing a good business.</p> <p>5. An action at law was brought upon the note alleged to be forged, against the curator of H., and judgment rendered without any defence. A suit in equity was then brought to subject the real estate of H. to the payment of the judgment; and there was a decree for sale, and sale; in both which suits the prisoner was counsel for the estate; and he purchased apart of the property. The records of these cases, with the testimony of the clerks of the respective courts, were admissible evidence with other evidence, to show the uttering of the forged paper, and the complicity of the prisoner in the uttering of it.</p> <p>6. To convict a prisoner of uttering, or attempting to employ as true, a forged writing, it must be shown that the accused, himself, uttered or attempted to employ as true the said forged writing, or was present at the time such forged writing was uttered or attempted to be employed as true, by some other person, aiding and assisting such person to utter or employ the same as true; and it must be further shown that the accused knew at the time that the said writing was in fact forged; and that such uttering or attempting to employ as true, was made or done by him with the intent to defraud. But any assertion or declaration, by word or act, directly or indirectly, that the forged writing is good, with such knowledge and intent, is an uttering or attempting to employ as true the said writing: provided that such assertion or declaration was made in the prosecution of the purpose of obtaining the money mentioned in the said writing.</p> <p>7. The County court and Circuit court of Henrico, being held within the limits of the city of Richmond, an offence committed by proceedings in these courts, is committed within the jurisdiction of the Hustings court of the city, and may be prosecuted in that court.</p> <p>8. The ex parte settlement of a personal representative, by a commissioner of the court, though it has been confirmed, is not competent evidence to show that a witness not connected with the estate had the means to pay for real estate which he purchased, at a sale made by the person who was personal representative, as commissioner of the court, in order to sustain the veracity of the witness.</p>

This was an indictment in the County court of Norfolk, against John W. Taylor, for rape. The indictment charged that the prisoner, on the 5th of May, 1870, in the county of Norfolk, in and upon one Ellen Frances Davis, she being then over twelve years of age, with force, &c., and her, the said Ellen Frances Davis, then and there, &c., feloniously did ravish and ■carnally know, against her will and by force; against the peace and dignity of the Commonwealth.

<p>1. In order to constitute a dedication of property to the public, there must he an intention to appropriate the land for the use and benefit of the public. The acts and declarations of the owner, indicating such an intention, must be unmistakable in their purpose, and decisive in their character, to have that effect.</p> <p>2. This intent may be presumed from circumstances connected with a long and uninterrupted user by the public. And this presumption may he rebutted by circumstances showing that an appropriation of the property to the use of the public was not intended.</p> <p>3. In this State there may be a valid acceptance of an easement in a town, without any distinct act of recognition by the corporate authorities of such town. The mere user, however, by the public, of the loom in quo, will not of itself constitute an acceptance, without regard to the character of the use, and the circumstances and length of time under which it was claimed and enjoyed.</p> <p>4. Where property in a town is set apart for public use, and is enjoyed as such, and private and public rights are acquired with reference to it and to its enjoyment, the law presumes an acceptance on the part of the public as will operate an estoppel in pais, and preclude the owner from revoking the dedication.</p> <p>5. Where no public or private interests have been acquired upon the faith of the dedication, the mere user, by the public, of the supposed street or alley, although long continued, should he regarded as a mere license, revocable at the pleasure of the owner; unless there he evidence of an express dedication; or unless, in connection with such long-continued user, the way has been, by the proper town authority, recognized as a street, so as to give notice that a claim to it as an easement was asserted.</p> <p>6. A map of a city, though made by a former city surveyor, and found in the office of the register of the city, in a hook labelled “ plans and charts,” not appearing to have been made by the authority of the city government, or adopted by it, is not competent evidence for the Commonwealth, in a prosecution for obstructing what is claimed to be a street of the city.</p>

In July, 1870, John Marshall was indicted in the County court of Alexandria for an assault, with intent to kill Andrew Bowles. At the August term, 1870, of the court, the. case was removed to the Corporation court of the city of Alexandria. In that court the case was continued from time to time, for the defendant, until January, 1871, when he was arraigned, and pleaded a special plea to the jurisdiction; which was disallowed; and he then pleaded the general issue.

At the March term, 1869, of the County court of Rockingham, Charles Jones and John Reins were jointly indicted for stealing, in December, 1868, two horses, the property of Erasmus W. Hester. When arraigned, they refused to plead, and demanded to be tried in the Circuit court; which was accordingly ordered.

This was a writ of error to the Corporation court of Alexandria. James Boswell was indicted in that court, at the July term, 1870, for the murder of Martha Trench,.a small colored girl about seven years old. He was tried at the December term of the court, and was found guilty by the jury of murder in the second degree; and they fixed the term of his imprisonment in the penitentiary at eleven years: and the court sentenced him accordingly.