Volume 21 — Virginia Reports

This was an action of assumpsit in the Circuit court of Pulaski county, brought in February 1867, by Jabin B. Alexander against Francis Bell, to recover the amount of a check for fourteen hundred and thirty-five dollars, drawn by Bell upon the Exchange Bank of Virginia, at Salem, in favor of Alexander. The facts of the case are stated by Judge Christian in delivering the opinion of the court.

<p>Johst How brought assumpsit in the year 1809 in the county court of Richmond, against John W. Tomlin, administrator of Walker Tomlin. The declaration contained a general indebitatus assumpsit for 90L 2. 2| the price of How’s interest in the brig Juno which he sold to Walker Tomlin 24th October 1782, which Walker Tomlin assumed to pay on 1st January 1783 subject to a deduction of 10 per cent.; and also a count on an insimul computassent for the same sum, subject to a like deduo tion, payable on the same date.</p> <p>A submission to arbitration was made and at another term set aside. In March 1816 both the plaintiff and defendant being dead, the cause was revived by sdre fadas, in the name of the appellee administrator of How, against the appellant administrator de bonis non ofWalker Tomlin.</p> <p>In August 1816 the defendant pleaded the general issue and there was a trial, at which the plaintiff moved the court to instruct the Jury, that the defendant having pleaded the general issue could not rely on the presumption of payment arising from lapse of time. The court was divided on the motion, the instruction was consequently not obtained, and the plaintiff excepted. The Jury found a verdict for the plaintiff for 90Z. 2. 2f with interest from 24th October 1782. The court granted a new trial.</p> <p>The plaintiff excepted to the opinion of the court granting a new trial, and in his bill of exceptions spread the whole evidence on the record, consisting of 1. A transcript of the account between How and Walker Tomlin concerning the Juno, with an agreement subjoined dated October 24, 1782, by which Tomlin agreed to pay 90Z. 2. 2# &c. 2. A receipt dated 1801 executed by I. W. Tomlin for Walker Tomlin to How, for 26Z. 16. 4¿, paid by How in part of money lent him hy Walker Tomlin.</p> <p>The plaintiff offered to release 10 per cent, of the verdict. But the court granted a new trial.</p> <p>At the August term 1817 the defendant asked leave of the court to add the plea of the statute of limitations to the former plea. The court refused. And on the new trial, the Jury found for the plaintiff $7 37 37, and costs.</p> <p>The Superior court of Richmond granted the defendant a supersedeas, and at the April term 1818 affirmed the Judgment. The appeal was from that Judgment.</p>

This was an action of assumpsit in the Circuit court of Pulaski county, brought in February 1867, by Jabín B. Alexander ag-ainst Francis Bell, to recover the amount of a check for fourteen hundred and thirty-five dollars, drawn by Bell upon the Fxchang-e Bank of j Virginia, at Salem, in favor of Alexander. The facts of the case are stated by Judge Christian in delivering the opinion of the court.

<p>Bttssakd brought a special action on the case against Marshall, in the Superior court of Spottsylvania, charging that the plaintiff was entitled to 1245 bushels of barley, then laden on board a vessel lying in the river Rappahannock, u ithin the jurisdiction of the court and of the Superior court of Chancery for the Fredericksburg district, and then being in the possession of M. Dawson, the master of the said vessel, for the purpose of being forwarded to the plaintiff at Georgetown, in the district of Columbia, and the defendant knowing the premises, falsely pretending that the said plaintiff, together with a certain Renner, was indebted to him in a large suns of money, for which he had no remedy but by subjecting the said barley to an attachment from the Superior court of Chancery of Fredericksburg, did, on, &c. sue forth from the office of the said court of chancery a subpoena to attach the goods and effects of the plaintiff and of the said Renner in the hands of the said Dawson, master of the said vessel, which subpoena was served on Dawson, and he thereby compelled to keep and withhold the barley from the plaintiff for a long time, during which it was spoiled and became of no value, and was wholly lost to the plaintiff; and afterwards, to wit, ®"c‘ sa^ suit was dismissed by the defendant as appears by the record &c. “ wherefore the said plaintiff says, that by reason of the said unjust and improper suing forth ^Le sa^ attachment without good cause therefor and the consequent attachment and detention of the said barley, in the hands of the said Dawson, he has been greatly injured and hath sustained damage” &c.</p> <p>■ The defendant pleaded “ not guilty” and also pleaded specially.</p> <p>That on the 19th October 1814, and long before, the plaintiff and.a certain Daniel Renner, trading under the firm of Raynard and Bussard, were indebted to the defendant in the sum of $793 04, which debt was contracted in Georgetown, in the district of Columbia: and that the plaintiff and Renner on the 19th October 1814, and before and ever since resided without the commonwealth of Virginia, to wit, in Georgetown, in the district of Columbia, and being so out of the commonwealth and the said Dawson having in his possession the said barley belonging to the plaintiff, the defendant sued out his subpoena to summon the said plaintiff and Renner and Anthony Buck and M. Dawson to appear &c. and the.said subpoena was endorsed by the defendant’s counsel with the words “ to attach the effects of the defendants Renner and Bussard, in the hands of the other defendants Buck and Dawson, so that they do not dispose of them until the further order of court,” which subpoena was served on the said Dawson, of which the plaintiff had notice, and the defendant avers the said bill to have been filed for the pui-pose of recovering the $793 04 aforesaid, and of attaching the effects of Renner and Bussard in the hands of Buck and Dawson, for the payment of the said demand. And the defendant, on the 19th January 1815, by the judgment of the circuit court of the district of Columbia, held in the city of Washington, to wit, at the county of Spottsylvania, recovered against the plaintiff and Renner the sum of $1600 and $17 57 costs, to be discharged by the payment of $793 04 with interest &c. which said judgment was for the same debt aforesaid, and the plaintiff afterwards, to wit, on &c. dismissed his said bill in chancery, absque hoe, the deft, sued out no other bill in chancery &c.</p> <p>To this plea, there was a general demurrer, on which demurrer a joinder. The court gave judgment for the demurrant, and a jury was sworn to try the general issue, which was found for the plaintiff and $1148 09 damages.</p> <p>At the trial, Marshall’s counsel filed a bill of exceptions, setting forth at large the record of the proceedings on the attachment in Chancery, the indorsement on the subpoena signed by Marshall’s counsel in Chancery, in the words before mentioned.</p> <p>The bill states, that Dawson and Buck the garnishees 4‘have on their hands a parcel of barley belonging to Renner and Bussard (or if the partnership be dissolved) to Bussard one of the film” and prays it may be attached &c. upon which, Marshall’s counsel moved the court to instruct the Jury, that Dawson the garnishee was not bound by the indorsement on the subpoena to retain the property in his hands if it belonged to Bussard solely. This instruction the court refused to give, Marshall excepted and appealed.</p>

On the 5th of November 1869, Margaret 33. Taylor sued out of the clerk’s office of the county of Montgomery, a writ of unlawful detainer against Charles L. Peck, to recover possession of a tract of land which she alleged he illegally withheld from her. A number of questions were made in the cause in the County court, but it'is only necessary to refer to two of them. One of these questions is presented by the second bill of exceptions taken by the defendant.

Wu.T.iAMStm brought detinue against Farley, for the recovery of certain slaves. At the trial, he offered in evidence, a deed of trust executed by Jacobus Christopher, conveying the slaves in controversy to Williamson, in trust to secure a debt due one Tarwater. The deed was dated 13th January, 1817. The defendant Farley to prove his title, offered an absolute bill of sale from Christopher to him, dated 6th January 1817; the consideration of which was the sum of $1000.

<p>Bourke brought an action of debt against Gran berry, President of the marine insurance company of Norfolk, in the Hustings court of Norfolk, on a policy of insuranee. The policy warranted a vessel called the Two Brothers, to be American property, and the underwriters insured from the usual risks of pirates, men of war, enemies, taking at sea, &c. in a voyage from Hispaniola or Jamaica, to Norfolk. The vessel in returning from St. Domingo to Norfolk, was seized as enemies’ property, carried into Jamaica, and condemned as prize, by the vice admiralty court of Great Britain. It was sold for the benefit of the captors, at which sale, Canby the master of the vessel, bought it lor Bourke the former owner. At the trial of the cause, the plaintiff offered evidence, to prove the Two Brothers to be an American vessel, and that he was an American citizen. The defendant moved the court to exclude such evidence; because the decree of the vice admiral in Jamaica, was conclusive of the fact, that the vessel was not American or neutral property. The court however admitted the evidence, and the defendant excepted. The defendant also moved the court, to instruct the Jury, that the master of the vessel having purchased it under the decree of confiscation, for the benefit of Bourke the former owner, the plaintiff could not in law recover against the insurers, as for a total loss, but only for a partial loss; the measure of which, was the injury actually sustained. The court refused to give this instruction. The Jury found for the plaintiff, who accordingly had Judgment. The defendant appealed to the district court then held in Suffolk. The counsel agreed upon record, to release all errors except Ac., and to submit to the judgment of the court only two questions, viz. whether the sentence of the vice admiral of Jamaica was conclusive to negative the warranty contained in the policy, that the vessel was American. Second, whether under the circumstances, the loss was a total or a partial one. The district court of Suffolk reversed the judgment of the Hustings court of Norfolk, because the sentence in the vice admiralty court of Jamaica was conclusive evidence, that the vessel and cargo at the time of seisure, were the property of the enemies of the king of Great Britain; and consequently, evidence contradicting those facts, was improperly admitted; and a new trial was awarded. The plaintiff appealed to this court.</p>

<p>1. In a bill by tbe purchaser for tbe specific performance of a parol ‘ contract for tbe sale of land, tbe contract as stated in tbe bill must be sustained by tbe evidence, or tbe bill will be dismissed.</p> <p>2. In such a case, where a different contract is stated in tbe answer, and is sustained by tbe evidence, tbe bill may be dismissed, or tbe court may, in a proper case, give to tbe plaintiff tbe election to bave tbe contract as proved enforced, or to bave it rescinded.</p> <p>3. Where one contract is made for tbe sale and purchase of both real and personal property, and a lumping sum is to be paid for both; tbe whole sum is a charge upon tbe real estate, and a conveyance of tbe real estate will only be decreed upon tbe payment of tbe • whole amount.</p> <p>4. If tbe purchaser elect to bave tbe contract rescinded, be is to be charged with tbe value of the personal property which be has received, with interest, and with rents and profits of tbe real estate of which be has been in possession, and is to be credited with so ' much of tbe purchase money as be has paid, with interest, and¡ with tbe value of permanent improvements made upon tbe pro- > perty.</p>

<p>Gkouge Walton made Mb will, containing among other provisions a clause, bequeathing to his wife Martha, about four thousand acres of land in Kentucky, one half of a mill on Meherrin River, with about six hundred acres of land adjoining it, with all the negroes, debts, stock, &c., not previously devised, “tolive upon, pay my debts, and dispose of among my children and grand-children, as she pleases, and should she find it necessary to sell, all or either of the lands, to convey and make titles thereto, to any person or persons whatsoever, which title so made shall be valid to all intents,” &c. this will was recorded in July 1797.</p> <p>Martha Walton afterwards made her will, which was recorded in October 1814, by which she gave to Thomas Walton, (her son) certain slaves, &c., and to his children by name, certain other slaves. To her grand-daughter Fanny Moore, a pecuniary legacy. The other children of her daughter Moore she added, were intentionally pretermitted. To her son-in-law Joseph Yarbrough, she gave the half of the mill and its appurtenances on Meherrin River. The residue of her estate, she desired be divided into five equal parts, of which, one was given to her son Thomas Walton; one to the children of her daughter Temperance Yarbrough; one to the children ^er daughter Susanna Morton—Hughes Morton being excepted; one to Robert and Thomas Walton sons of her son Robert; and the remaining fifth to her daughter Sally Bitts. Her daughter Martha Knight, and her son John B. Walton, and all her grand-children not expressly provided for, she added were intentionally omitted.</p> <p>Woodson Knight and Martha his wile, who was a daughter of George and Martha Walton, together with several of the children of Knight and his wife, brought their bill in Chancery, complaining, that the power of appointment conferred on Martha Walton by the will of George, was improperly executed; and praying, that the execution might be decreed to be void. The devisees of Martha Walton were made defendants to the bill.</p> <p>The Chancellor decreed, that the widow of G. Walton by his will, had power to dispose of the property in dispute among the children’ and grand-children as she pleased, and that she had well executed the power, except in devising half the mill, &c., to Joseph Yarbrough who was neither a child nor grand-child of the testator, but a son-in-law. He also decreed, that this moiety on the death of Martha Walton vested in the heirs of George Walton; and ordered an account of the profits, See. of the mill by a commissioner; who was directed, to report the value of the mill, the number of heirs of G. Walton, ScC;</p> <p>In vacation, one of the plaintiffs petitioned the Chancellor for an appeal from this decree tho’ interlocutory, because the decree was erroneous, affected the rights of the parties, and .an appeal in that stage of the cause might save the expense of the reference. The Chancellor refused the appeal. In which he was overruled by a Judge of this Court, and now the cause was argued on the merits by Leigh for the appellant:</p> <p>Who said, it was the manifest intention of the testator, that each child and grand-child should have a share.— And under the clause, itself, she could not pretermit any object of the testator’s bounty, or make the appointment illusory by giving a trifle. ■ Equality is equity in such cases.</p> <p>This case is to be argued upon authority: and on English authority, for there is no case in point, which has occurred in Virginia; Fleming and Swan certainly is not.</p> <p>In Equity, powers to appoint are trusts,(a) and where a power is given to dispose of the subject at discretion, in whatever words, the appointment is improperly executed, if a mere trifle be given to any object of the bounty, and more so, if any object be entirely pretermitled.(b) The only case in which a variance from this doctrine appears, is that of Burrell v. Barrell.(c) But there the devise was, that the wife should make such disposition among the children, as she should think proper, or they best deserve. A guinea only was given to one, and the power was held by Lord Camden, to be well executed; because the wife batí a discretion as to the objects, as well as the fund, by the words; and might have omitted the son altogether.</p> <p>There arc many decisions as to what inequality will avoid an appointment; 200/. out of 18,000/. and 100/. out of 24,000/. have been held not to he illusory.(d) But in those cases, something was given to all, which was not done in the case before us; and then, the appointment is clearIy vo^*(e) The case of Alexander v. Alexander(f) seems opposed to all the cases on this point: for there must be a power given by the will to select some, *n exclusion of others, to justify the omission of any one.</p> <p>This power is not well executed even at lawr, for there are no special reasons existing, to justify the exclusion of any of the objects. No misbehaviour is imputed to any of them.(g)</p> <p>Another provision to be sure, will authorise a pretermission. But this must be a provision by the person charged with the appointment. (h)</p> <p>And the death of the cestui que trust will justify an omission.(i)</p> <p>The case of Morris v. Owen(k) does not affect this. There a power was given, to appoint among children, and the court held it error, to give a portion to a grandchild; and giving a slave to one of the children during the life of the person charged with the appointment, was held a good execution. In this case, I admit the appointments as to slaves given during Martha Walton’s life, to be well executed: but not so of those made by her will. If the will be no execution of the power, the estate must be distributed according to the statute; if it be a defective execution of the power, this court will supply the defect, and execute it equally.(l) And the slaves given in Martha Walton’s life must be included, in ascertaining what is equality.</p>

Eiuotte brought an action of trespass on the case, against 1’arker, for debauching his daughter. There was a demurrer to the declaration, because there was no positive averment of the injury, and because the action should have been trespass, and not case. The court below decided against the demurrer, and the jury found a verdict for the plaintiff.

Smith brought an attachment against the estate of Pearce an absconding debtor. Pearce not appearing to defend the suit, Smith’s counsel moved the court for an order of sale of the attached effects; and that the amount of Smith’s claim should be paid him. And while the motion was before the court, counsel for Pearce offered special bail, and filed a plea.

William. G. Clark died iu July or August 1861. By ¡Ms will, which was duly admitted to probate, he devised to his sister Mary Clark, for her life, three tracts of land ‘in the county of Washington, called respectively the Home Place, the Hogue Place, and the “Double Cabin Place,” and he gave these three tracts, at the death of Mary Clark, to his nephews James C., Peter J., and. Thomas Hope. And he gave to his nephew Benjamin Glenn a farm called the Callison farm.

<p>This was an action for malicious prosecution, brought by Jesse Tinder, against Peter Gucrrant Sen. Henry Huff, Young Jarratt, Leonard Wilson, and Peter Guerrant jr. The declaration sets forth three different wrongs and injuries to the plaintiff. First, that the defendants, maliciously, and without probable cause charged the plaintiff, before Thomas Thompson a magistrate, with stealing a silver watch of the value &c., whereby they procured his arrest and imprisonment. Second, that they maliciously and without probable cause, procured the plaintiff to be brought before the examining court of Franklin county, and remanded to jail for' the felony. Third, that they falsely and without probable cause, procured the plaintiff to he indicted for the felony before the grand Jurors of the Superior court of law for Franklin county. The declaration avers the discharge of the plaintiff by the grand Jury; and that the defendahts had not farther prosecuted &c.</p> <p>The defendants pleaded jointly not guilty.</p> <p>At the trial of the cause, the plaintiff having given in evidence, conversations of the defendants relative to the felony charged, the defendants offered Thomas Thompson, the magistrate who committed Tinder, to prove what they deposed before him, on Tinder’s arrest. The plaintiff’s counsel objected to the admission of this testimony. The court sustained the objection. The evidence was excluded. The Jury found Peter Guerrant, sen’r. Hen-t-y Huff, and Peter Guerrant jr., guilty; and assessed the plaintiff’s damages at g>500. The other defendants were found not guilty. The defendants found guilty, appealed.</p> <p>This cause was three limes argued by Wickham for the appellee, and by Gilmer for the appellants. On the first argument the only question made was, whether It was error to exclude the evidence of Thompson. The court requested arguments afterwards, on the difficulty which presented itself, in reversing the judgment as to the convicted defendants only.</p>

George Keith Tayeor adm’r of Holloway, brought a hill in the Chancery court of Richmond setting forth, that Holloway and one Hanserd were merchants and partners in Petersburg. That they had fallen into pecuniary difficulties and had become the prey of usurers.

This was a suit instituted in September 1867, in the* Circuit court of Washington county, and afterwards removed to the Circuit court of Wythe, by Georgiana F. “Bailey against her husband, James A. Bailey, for a divorce. The grounds for a divorce stated in the bill are adultery, cruelty and abandonment, by her husband. The first two of these grounds are not sustained. It appears that the parties were married in June 1865, in the county of Washington.

In November 1849, Stephen Sanders, of Wythe county, made his will, which was admitted to probate in the County court of Wythe in January… Held: that at the time of the sale of the land and of the conveyance to;Eaper, the power to sell, under the will of Stephen Sanders had not arisen ; and that the sale and conveyance made by John A. Sanders to Eaper were inoperative and void, .to the extent of the interests of Robert and’ Stephen Sanders, bnt were valid as to Mrs. Loekey…

This was a suit in the Circuit court of Carroll county, brought in March 1866, by' James Wilkinson, against Fielding L. Hale, to enforce the specific execution of a contract for the sale aod purchase of land.

<p>D owes 0 a debt, and in January 1861, D gives his negotiable note at four months, for the amount, with B as his endorser upon the note. C has the note discounted at bank, and it is protested for non-payment. In August 1862 0 retires the note, paying the bank in Confederate money, and in 1866 sues D and C on the note. It is a specie debt, and is not to be scaled.</p>

This was action of covenant in the Circuit court of Smythe county,-brought in September 1866, by Vm. A. Jones, against Abijab Thomas, upon a writing, of which the following is a copy: March 12, 1868. I hereby bind myself, my heirs, &e., to pay-the amount of principal and interest due from W, A. Jones, on the tract of land purchased by him of G. W. J ones and wife. Witness my hand and seal the day and date above.

This is a declaration in covenant, containing two counts. The 1st sets forth, that Long and- Colston on the 8th July 1797, entered into a covenant which recited, that Chilcott Symmes of G. Britain, on the 24th June 1742, devised certain lands, &c., to Richard Chichester in fee; that Richard Chichester devised them to his son John; that John Chichester died under age, leaving a daughter, (Mary) his only child, who married Burgess Ball: and died, leaving two children, a son…

<p>The heirs of Peter Lyons, who was surviving trustee of William Byrd, brought ejectment for lot No. 547, in the city of Richmond. At the trial, the lessors gave in evidence the following documents and facts. A deed from William Byrd dated 18th September 1756, to Peten Randolph, John Robinson, John Page, Presly Thornton, Charles Carter, Peyton Randolph, and Charles Turnbull; conveying to them, all his (Byrd’s) lands in Chesterfield, Henrico, &c. in trust, for the support of his family, and payment of his debts; with power to sell and convey any of the lands in Chesterfield or Henrico. Also a deed dated 4th May 1770, from William Byrd, and the surviving trustees of the former deed, to Edmund Pendleton, and Peter Lyons; conveying to them all the land in Chesterfield and Henrico, which had been conveyed by the deed of 1756, and which remained unsold, and which they “have now a right by virtue of the said deed to sell, (except the several prizes drawn by fortunate adventurers in the said Byrd’s lottery”) in trust, to secure the payment of certain debts. The lottery Itere mentioned was proved to have been drawn in conformity to the scheme promulgated by .Byrd; by which, he. proposed to dispose of the “land and tenements under-mentioned, being the entire towns of Rocky Ridge, and Shockoe;” then followed a schedule. The lottery was advertised to be drawn in June 1768; it was not drawn however, until November 1768. It was farther preved, that the ticket No. 1963 drew prize No. 547, the lot in controversy. That this ticket with a number of others was delivered to John Page, one of the trustees in. the deed of 1756, and a trustee particularly named to superintend with others, the drawing of the lottery, and of whom it was advertised, tickets were to be purchased; but whether Page sold this ticket, or returned it to Byrd, did not appear. It was further proved, that a number of lots in Richmond, on the eastern side of Shockoe creek, conveyed to the trustees by the deed of 1756, were not included in the lottery.</p> <p>Upon this evidence, the court on motion of the defendant, instructed the Jury, that even if the ticket No. 1963 was returned unsold and held by Byrd, or his trustees, at the time of drawing the lottery, the prize drawn by it, was not conveyed to Pendleton and Lyons by the deed of 1/70; because prizes drawn by fortunate adventurers in the lottery were expressly excluded from that deed. The jury found for the defendants, who had judgment, and the lessors of the plaintiff appealed.</p> <p>The court consisting of 'Roane. Brooke, Cabell, and Co alter, were divided in opinion. Roane and Brooke being of opinion to affirm the judgment, and Cabell and Coalter for reversing it, so the judgment stood affirmed.</p>

This was a supersedeas to a judgment upon a forthcoming bond rendered in the Circuit court of Smythe county, upon the motion of Wade D. Strother, commissioner for John U. Hull, against Robert Goolsby, V. G. Morgan and others. The notice of the motion was for a judgment on the bond on the 13th day of June 1870, and service of the notice was acknowledged by the-parties on the 14th and 16th of May 1870. The bond bore date the 1st of September 1869.

On the 8th day of February 1858, ¥m, M. Mitchell executed a deed, by which he conveyed to Eli C. Hale a tract of land in the county of Grayson and all his personal property, to secure to Martin Hale and others, certain debts mentioned in the deed ; and it was provided that Mitchell should remain in possession of the propei ty until the 1st of the next October; and then if the debts were not paid, Hale, the trustee, might, at the request of any of the creditors secured by the…

<p>Saxe brought case against Jacobs, in the county court of Henrico. After the common order was confirmed in the clerk’s office, Jacobs appeared by attorney at the March term 1817, and before pleading, obtained a rule against Sale as a foreign plaintiff, for security for costs. In this situation, the cause was continued generally, at the succeeding August, and November terms. In March 1818, the defendant moved, to have the plaintiff’s actio». dismissed, for want of security; when the plaintiff’s conn» sel became surety for costs. The defendant then moved, to have the cause continued; assigning as his reason for being unprepared, the failure of the plaintiff- to give security for costs until that moment. The court overruled the motion; the cause was tried, and the jury found for the plaintiff-. The defendant appealed to the Superior court of law which affirmed the judgment. There are several exceptions, but that to the opinion of the court, overruling the motion for the continuance, is the only one material.</p>

John Eahey, surviving executor of Joshua Early, filed a hill in Chancery, against Jabez Early, Samuel Garland, Samuel Read, and William Booth, stating, that Joshua Early, had by his will, lent to Jabez Early, a negro woman named Yenus, until he (Jabez) should attain the age of fifty: to be under the control of his ex-ccuiors; and in case Jabez died under 50, the executors were to make a title to his heirs.

.K.owm'SX.aii owned the land on both sides of Mill Creek in Berkeley; he had a mill on it already, and wishing to raise the dam, (which had been erected according to law,) obtained a writ of ad quod damnum, which was issued in the usual form, requiring the sheriff to summon a jury to inquire of damages; whether the health of the neighbours would be injured &c. The sheriff returned, that a jury being summoned and charged as aforesaid, upon their oaths said, that Kownslar…

<p>Lane and Brome merchants, filed a hill in the Chancery court of Winchester, stating, that Bull some years before, being indebted to one Turnbull, bad given a mortgage on certain lands, to secure the payment; a suit had been brougnt to foreclose the equity of redemption; and a decree had been made for a sale, which decree was executed, so far, as to put the purchaser in possession. The decree however was reversed on appeal; and the Chancellor directed Bull to he reinstated in his possession: from which decree, an appeal was taken, which appeal was pending, when this bill was filed. In this state, and while the widow of the purchaser, under the decree of foreclosure, was in possession, Bull executed a deed of trust on the same lands, to secure a debt due to one Morris; the interest in which deed, Morris assigned to Tidball and M‘Cormick; and for their benefit, the trustee was about to sell the land under the deed of trust. The interference of a court of equity was asked, to prevent a sale, because the land would not sell for its value, while a suit pended, affecting its title.</p> <p>The Chancellor refused the injunction, because all parties to the deed had contracted with full knowledge of the facts; and the short time fixed for the sale by the deed, excluded the idea, that any one thought the doubts as to the title were to be cleared up, before the sale. The injunction however was granted by a Judge of the court of appeals.</p> <p>The injunction was dissolved, on replication to the answers ox Tidball and McCormick; and they appealed.</p>

In June 1867, R. O. Craig instituted two actions of' covenant in the Circuit court of Washington county,. against E, E. Caldwell; one on a bond for $2,000, and the other on a bond for $2,500, both of them executed by Caldwell to Craig.

<p>Judgment on a forthcoming bond, ought not to be relieved against, in equity, because the bond was forfeited, by a slave having run away, who by the condition, was to be forthcoming.</p>

Edward Hairam procured a warrant of attachment, against certain goods of John MJPherson, for rent. The defendant not appearing to replevy the goods, Hall am moved the Hustings court of Richmond (to which the warrant was returnable) for judgment. The court gave judgment, and gave a day to Jones and Winston (with whom the officer stored the goods, and who claimed title to them) to interplead.

<p>The death of one of the demandants in a writ of right before trial, abates the whole writ.</p>

This was an action of debt in the Circuit court of Smythe county, brought in June 186?, by William P. Dungan against George W. Henderlite, to recover the sum of eight hundred dollars, the amount of the bond declared upon. The defendant craved oyer of the bond and demurred to the declaration ; and the plaintiff joined in the demurrer. The Circuit court overruled the demurrer and rendered a judgment for the plaintiff for the amount of the bond.

<p>Giving farther time for payment, to the principal, without the consent of the surety, discharges the surety from all liability.</p>

Gait and Johnson, partners in trade, obtained a writ in debt, against Ellis Purycar, from the Superior court of law for Goochland county.. The Sheriff returned, that the writ was executed on Ellis Purycar, who was “ bailed by William Goode,” The bail bond is part of the record, and though the name of William Goode is inserted in the bond, it is signed only by Ellis Purycar, and Diehard Bedford; Bedford’s name is not in the body of the bond.

<p>A couit of equity has jurisdiction to stop proceedings at law, to reverse a judgment on a writ of forcible entry, in which a second writ of restitutionh as been granted; tire first being lost, without any fault in the plaintiff in equity.</p> <p>Though equity in such a case will stop legal proceedings involving only the right of possession, it will do it, without prejudice to an action to try the right of property.</p> <p>The Judge, failing to direct a release of errors on granting an injunction; this court will respect the principle.</p>

<p>1. Upon a motion by the defendant to abate an attachment which had been sued out against his property by the plaintiff, the onus is on the plaintiff to show that the attachment was issued on sufficient cause, and he may, therefore, be required to introduce his evidence first</p> <p>2. Where a case is heard by the court without a jury, an appellate court will not reverse the judgment, though the court below may have erred in requiring the plaintiff to introduce his evidence first. In such a case, it is a matter of perfect indifference in what order the evidence is heard.</p> <p>8. Upon a motion by the defendant to abate an attachment which has been sued out against his property by the plaintiff, the admissions and declarations of the wife of the defendant are not admissible in evidence for the plaintiff to prove the intention of the defendant to move with his property from the State, unless they were a part of the res gestee of an act which was evidence, and which they might reasonably tend to explain.</p> <p>4. Upon such a motion, the defendant’s intention and declarations as to leaving the State after the date of the attachment, are not admissible as evidence.</p>

Is' December, 1806, Hugh Campbell exhibited his original bill against Philip Slaughter and Charles Carter, In the superior court of Chancery of Richmond, setting forth, that in August, 1802, Campbell bought of Slaughter a tract of 949 acres of land, according to boundaries described in a written contract between them, at nine dollars per acre for 598 acres thereof, and eleven dollars per acre for the other 351 acres; that Campbell had paid all the purchase money, but the…

This was a proceeding in the County court of Carroll county, by Wm. C. Thornton and James B. Crockett, to have a change made in the route of a public road in that county. The route as proposed passed' through the lands of A. II. Mitchell. The case is fully stated by Judge Moncure in delivering the opinion of the cojirt.

Edward W. Trent of tlie town of Manchester, having a wife, a brother, Dr. J. Trent, and a sister, Mrs., Leiper, hilt no children, and being the proprietor of Trent’s Bridge over James river, a stone quarry and lands adjoining, and sundry lots in Richmond and Manchester, and other property real and personal, made his will on the 29th of March 1818, which contains the following clauses: ££I direct the payment of all my just debts, ££ asid wish the whole of my Richmond property…

This was a suit in equity brought in November 1858, ** by Jacob V. Fulkerson against the justices of Lee county, and was afterwards removed to the Circuit court of Wythe.

<p>Tmi writ issued from the county court office of Caro.line, in the name of Metcalfe against Lawrence Battaile, in debt, for $1500, due on a negotiable note, indorsed by the defendant} damage $200.</p> <p>The declaration was in debt, against Thomas R. Rootes jr. maker,- and Thomas Rootes, and Lawrence Battaile, successive indorsers of a negotiable note, for $1500, and $3 70, notarial charge of protest.</p> <p>The defendant not appearing to defend the suit, the court gave judgment for $1500 and $3 70, with interest from the time the money was due on the face of the note.</p> <p>On appeal to the Superior court of the county, the judgment w as reversed, and the cause remanded for farther proceedings. The plaintiff’s counsel objected, that ^ie judgment should be entered for the principal due; the defendant’s counsel, insisted on the liberty of pleading to the action.</p>

<p>Devise of slaves for life, should devisee die without issue, remainder-over, is not too remote a limitation.</p>

<p>In 1859 Mary Harman instituted a suit in equity in the Circuit court of Smythe county, to subject the land of her late husband, Jezroel Harman, to satisfy a decree for $2,860 aucl interest, made in April 1858, which she had recovered against him. In her bill, after setting out her lien under the decree, she referred to deeds of trust on the lands which were prior liens to hers. The first of these was to Joseph W. Davis, in trust to. secure a debt to Peter G-. Snavely of $1,962.77, with interest from September 19th, 1843 ; the other was to secure to Y. S. Morgan a debt of $3,000.</p> <p>The bill having been answered by Suavely and taken for confessed as to the other parties, the court on the 6th of April 1860, made a decree appointing Joseph W. Davis a commissioner to sell the land, upon the terms of a sum in cash sufficient to pay the expenses, and the balance of the purchase money to be payable in twelve, eighteen and twenty-four months. Davis reported that he had sold the land to Y. S. Morgan for $11,600. This report was excepted to by the defendant, Ilarman, and he asked that the sale might be set aside for inadequacy - of price. And at the September term, 1860, the cause was continued.</p> <p>In April 1861 Davis made another report, stating the facts in relation to the sale ; and at the April term of that year, the court overruled the exception of Harman, and confirmed the report and sale ; and Davis was •directed to proceed to collect the purchase money of the land as it would fall due ; and that he report his proceedings to the court from time to time.</p> <p>At the April term of the court for 1863, Davis made his report. He refers to the fact that this was the first regular court held since the rendition of the last decree in the case. He reports that Morgan had paid all the purchase money ; and that he had paid Suavely his debt, amounting principal and interest to $4,163 ; $3,000 of Morgan’s debt, and some small sums for expenses, taxes ¡and commissions ; and leaving a balance in his hand of $3,847.04, which was on deposit in the Abingdon bank, subject to such order as the court might make. At this time it appears that there were three persons claiming this fund beside Mrs. Harman, viz : Morgan, for the balance of his debt, $1,246.66 ; John 13. Straw, a creditor by judgment for $1,200.27, which was contested, and Thomas M. Tate, under a deed of trust for $474.39 ; and these claims not amounting to the sum in the hands of Davis, the commissioner, by $925, the court made a . decree directing him to pay to Mrs. Harman, out of the balance in his hands, eight hundred dollars; and by another decree, at the same term, he was directed to pay to Morgan the $1,246.66 still due to him.</p> <p>At the time the foregoing decrees were made, Tate was not a party in the cause : but at the next September term of the court, he was, upon his petition, made a defendant; and he filed his answer setting up his claim.</p> <p>At the April term 1864, the court appointed' a com-missioner to convey the land to Morgan, the purchaser. This was the last term of the court held before March 1866. In March 1866, Davis made another report, sh°wi-ng that after the payments to Mrs. Harman and Morgan, and of taxes and commissions, there was abalance of $1,208.88 in Confederate money. He says he1 was anxious to pay over the balance in bis hands at the time of the last decree, but owing.to the contest amougthe creditors he was not able to do so, it not being ascertained to whom said balance should be paid. He paid the sums mentioned in Confederate money, and had the fund on deposit in the bank of Abingdon, and so reported, subject to such order as the court might make-, and he still has the amount on hand in Confederate money, though he had felt it his duty under the then existing laws, to invest the fund on deposit in four per cent. Confederate certificates, which he holds subject to the order of the court. This report was excepted to by Tate, on the ground that Davis was not authorized by any decree or order of the court, to receive Confederate' money from the purchaser of the land or to invest it.</p> <p>At this term of the court, a commissioner was directed to ascertain and report upon the priority and amount of liens between Straw, Tate and the plaintiff, and the consideration of the exception to Davis’ report -was postponed. In July 1866, the commissioner reported in favor of Tate as first entitled to the amount, up to-that time, of $505.26 ; and next to him that Mrs. Harman was entitled.</p> <p>On the 22d of Hovember 1870, the cause came on to be heard, when the court sustained the exception of' Tate to the report of Davis ; and Davis was decreed to pay the sum of $1,208.48, with interest from the date of the decree ; “ not charging him with interest prior to this time, as he was ordered to hold the fund to await the decision of the courtTate’s debt to be first paid, and the balance to be paid to Mrs. Harman. And from this decree, Davis obtained an appeal to this court. For other facts in the case, see the opinion of Judge Christian. ■</p>

<p>A title to land should not be disturbed, on an eleg-it, when derived by sale to raise the purchase'money; no security but the bond of the ■first purchaser, being taken for the payment; and a deed of trust given on the land, which was never recorded.</p>

The appellee brought debt against the appellant, on the following paper: “settled with Fanny Kile, and re- « mains due her sixty dollars a year, from the year of “ seventeen hundred arid seventy three, in November, « for her keeping of my house, witness my hand and JOHN ROWT.” (1.8.) Jan. Sd, 1807. Tesie, Robert Kile, Richard Stáige, William Rowt.

<p>1. H executed to G four bonds for the price of land, payable respectively, September 1st, 1860, 1S61, 1862 and 1863; the first fop $5,000, and the others, each for $2,833. In January 1866, G gives to H a receipt for $1,000 and the note of H for $1,008, in part payment of interest on certain bonds executed by H to G.. Suit is brought on the two last bonds and there are judgments thereon for principal and interest from time of payment. G assigns the second bond to M and M sues H upon it, who pleads the payment of $2,018 upon it. Nothing appears as to the first "bond; but the interest upon it up to the payment, was more than suffil cient to absorb it. Held :</p> <p>The debtor not having directed the application of the payment, it was the right of the creditor to apply it to the first bond; and if neither had applied it, the law would apply it to the first bond due; and it is to be presumed it was so applied.</p> <p>2. Nor the rules upon which partial payments will be applied, see Judge Christian’s opinion.</p> <p>3. As a general rule with few exceptions, the evidence of jurors will not be heard to impeach their verdict.</p>

This was an injunction obtained from the Chancellor at Richmond, by Taylor, trustee of Langhorne. The deed of trust dated March 1809 recited, that Langhorne had sold to Hobson a tract of land in Cumberland, to which Langhorne’s wife liad not relinquished her right of dower; and that Hobson refused to pay the purchase money, unless she would. The deed of trust vested in.

Tiiebe were cross bills. The first was by William Bold and Sarah his wife, daughter of James Brent, against Landon Brent and others, children of James Brent deceased, claiming their distributive share of James Brent’s estate; alleging, that he died intestate; and that Landon and James Brent, claimed times-' tate under a forged will, which they pretended was lost. Many depositions were taken. Among others, that of the widow of the decedent, which was objected to.

<p>.Fenwick brought debt against William and Samuel Moore, in the Superior court of Rockbridge. The declaration claimed 2,325?. 3s. 4 d, tobe due on a bond executed April, 4th 1795, by William and Samuel Moore. The bond offered in evidence on the trial, was executed by William and Samuel Moore to William Fenwick surviving partner of William Fenwick, & Co.: the condition of the bond was “to pay to William Fenwick, his heirs &c.;” and was signed by William Moore “for self and partner,” and one scroll was annexed.</p> <p>The defendant’s counsel objected to its being received, because variant from the declaration. The court sustained the objection; it was rejected, and the plaintiff’s counsel excepted.</p> <p>The plaintiff’s counsel then contended, that he was entitled to a verdict, without producing the bond described ¡li the declaration; the defendant’s counsel moved for an instruction, that the plaintiff could not recover without producing the bond, of which prefect was made in the declaration; the court refused this instruction; and the defendant’s counsel excepted.</p>

<p>1. Bor the grounds on which new trials will be granted, see opinion of Christian, J.</p> <p>2. A new trial asked on the ground that the verdict is contrary to the evidence, ought to be granted only in a case of plain deviation from right and justice; not in a doubtful case, merely because the court, if on the jury, would have given a different verdict.</p> <p>3. Where a case has been fairly submitted to a jury, and a verdict fairly rendered, it ought not to be interfered with by the court, unless manifest wrong and injustice has been done, or unless the verdict is plainly not warranted by the facts proved.</p> <p>4. Where some evidence has been given which tends to prove the fact in issue; or the evidence consists of circumstances and presumptions, a new trial will not be granted merely because the court if upon the jury, would have given a different verdict. To warrant a new trial in such eases, the evidence should be plainly insufficient to warrant the finding of the jury. And this restriction applies a fortiori to an appellate court.</p> <p>5. A holds the -bond of B twelve years old, and she puts it into the hands of H for collection. They are all relations, and all'members of the Menonist church, the rules of which forbid members to sue each other. H does not collect the money; and after the death of A, her administrator sues H for negligence in failing to collect the money. These are facts which may be considered by the jury on the question of negligence.</p>

This was a suit in equity in the Circuit court of Boekbridge county, brought in July 1866, by Joseph Spriggs against J. H. Coffman, ¥m. F. Poague, Jonathan ~W. Eads and others, to enforce the lien of a judgment confessed by Coffman, Poague and Eads, against the land which they owned at the time of the judgment, some of which had been subsequently sold to the other defendants.

Tamtha ArmEiisojr brought trespass quare clausum fregit, against John and Joseph Faulkner, in the Superior court of Halifax. The declaration first charged the trespass as usual, and added, that the defendants broke and entered the plaintiff’s house, opened, and searched her trunks; and did other wrongs, &c. Plea not guilty; on which the plaintiff had a verdict for $733; of which $300 were released.

M‘Rea and Company brought debt in the Superior court of law for Berkley county, against Nadenbousch and Offeral, on a note for $500. One Beeson became appearance bail, and defended the suit. The writ was returnable to June rules, when the declaration was filed; and Beeson prayed an imparlance. July rules, rule to plead. August, the defendants pleaded ‘ payment;’ to which plea, there w'as a general replication; and Beeson joined issue.

Lucy Richardson set forth in her bill, filed in the Chancery court of Richmond, that on the 5th July J 801, she obtained a decree in the county court of Not-to way, against John Patterson, administrator of one Anderson, for 50l. with interestfrom February 1st 1801; and for 221., with interestfrom 5th July 1801. That in 1812, she gave to Peter Bland, an order for the money, who had received it, and had never paid it over; he is a defendant to the bill.

This was a suit for freedom in forma pauperis, by Sam. The following case was made by a demurrer t© evidence in the county court of Amherst. Sam was born in the county of Augusta, about the year 1788, the slave of Mary Teas, a native of that county, then residing there. Mary Teas, removed to North-Carolina about 1790, where she resided and Sam with her, three years.

<p>This was a motion made by Jerman Baker [Treasurer,] on behalf of the commonwealth, under the 11th section, c^iaP> 174, of the Revised Code; against John Preston and *iine persons, his sureties, on a bond given in conformity with the 9th section of the same act.(a) The condition bond, after reciting that Preston had been elected Treasurer, concluded, “now if the said John Preston “shall faithfully account for all monies and other things tí which shall come to his hands in virtue of his office, “ and perform all other articles thereof according to law, “ then this obligation to be void, otherwise to remain in “ full force and virtue.”</p> <p>The notice of the motion recited the bond, and the condition; averred that it had not been complied with, and claimed the penalty of one million of dollars.</p> <p>There was no appearance for John Preston the principal. The sureties appeared by counsel, and the following pleadings were made up.</p> <p>The 1st plea craved oyer of the bond, which being read, was incorporated into the plea. The election of John Preston to the office of Treasurer on the 1 8th day of January 1819 (the date of the bond) and the determination of his office on the 17th January 1820, and the election of Jerman Baker as Treasurer on that day were all recited. And the plea averred, that during the whole of Preston’s said office of Treasurer, to wit: from the 18th January 1819 to the 17th January 1820, he did faithfully account for all monies and other things which came to his hands in virtue of his said office, and perform all other articles thereof according to law.</p> <p>The plaintiff replied, that between the above dates, and during Preston’s continuance in the said office, large sums of money, viz. §2,000,000 had come to his hands, and that he did not faithfully account, ike.</p> <p>Rejoinder, that during Preston’s continuance in the said office from the said 18th January 1819 to 17th January 1820, there came to his hands in virtue of his office only dollars, and no more, and that he did faithfully account, &c. Issue was joined on this rejoinder.</p> <p>2d plea. After the same recital as in the first plea, averred, that on the day of the commencement of Preston’s said office, to wit: on 18th January 1819, there was actually in tiie treasury, and in the hands of Preston in virtue of his said office, the sum of §407,000 and no more money or other thing; and between the commencement and expiration of his said office, to wit: from 18th Jan. 1819 to 17th Jan. 1820, there came to the hands of the said John Preston, in virtue of his office, divers sums of money, amounting to the sum of §793,251 f®, and no more money or other thing, which two sums of §407,000 'and §793,251 amounting together to the sum of §1,200,251 ®060j was all the money or thing, that came to the hands of the said Preston in virtue of his said office; and that he had faithfully accounted for all the said monies which so came to his hands in virtue of his said office, during his continuance therein; and had performed all other articles of the said office, &c.</p> <p>Replication, that on the 18th January 1819, there was actually in the treasury and came to the hands of Preston in virtue of his office, the sum of $800,000; and between the 18th Jan. 1819 and 17th Jan. 1820, there came to his hands in virtue of his said office, divers other sums to and that the said Preston did not account for or pay the said sum of money, but did divert, misapply and convert the same to his own use; and so had broken and violated the condition of the bond. The replication concluded to the country, and issue was joined.</p> <p>3d plea. That John Preston was first appointed Treasurer on the day of October 1808, by the Governor with advice of council: and executed his bond with security on the 18th October 1808: that he was first elected by the legislature in January 1809, and gave bond with security for the faithful discharge of his duties on the 12th Jan. 1819. That he was successively re-elected every year, until January 1819, That the bond of 1819 was not taken on “ his first election” (b) but on his 10th and last election, and was not required or authorised by law, and was void.</p> <p>There was a general demurrer, and joinder in demurrer to this plea. The demurrer was sustained by the general court.</p> <p>A Jury was then sworn to inquire of damages as to John Preston; and the truth to speak upon the issues joined as to the other defendants. In the progress of the cause several instructions to the Jury were asked for by the plaintiff, which will appear in the bills of exceptions which follow:'—■</p> <p>The 1st bill of Exceptions taken by the plaintiff states, “That on the trial of this motion, and before the jury ■were sworn, the plaintiff, in the presence of the court, ardura the day the jury were sworn, gave notice to defendant, Francis Preston, to produce an original deed executed by a co-defendant, John Preston, and his wife, and at the time of giving said notice offered to the said defendant, if further time jvas requisite to enable him to produce the said original deed, that he, the plaintiff, would ask a suspension of the proceedings until it could be obtained, or move for a continuance of the motion till the ensuing term of the General Court, in order that such time might be afforded. To which proposal the said defendant declined to give any other reply, than that the plaintiff’s counsel must take their own course, and manage their cause in their own way. And then the plaintiff offered to introduce a copy of the said deed, duly certified by the clerk of the Hustings Court of the City of Richmond.</p> <p>And the plaintiff proved, that the said original deed was about eight months ago, delivered by the clerk of the said court to the said Francis Preston; and proved by the oath of the said clerk, that the same was a correct copy, and that the trustees under the said deed, and one of the defendants, to wit: Bernard Peyton, had acted under the said deed, by authorising and effecting sales of property therein specified:—Whereupon the said Francis Preston came into court and stated, that the original, deed was carried by him and delivered either to Henry Edmundson, or James M''Dowell, but he docs not recollect which, to be recorded in the several distant counties wherein the lands mentioned in said deed respectively lie. But that he the said Francis did not know whether the said deed had been so recorded, nor where the same was, nor whether the same was now in existence, or not; but he believes it to be in existence, and now in the hand' 0f either the said Edmundson or .ftBDowell. Whereupon the defendants moved the court to exclude the said coptj from going in evidence to the jury, which motion the court sustained: and the said plaintiff excepted to the opinion of the court rejecting the said copy, and prayed, kill of exceptions might be signed and sealed which was done accordingly.”</p> <p>Another bill of Exceptions taken by the plaintiff states,—-“That on the trial of the issues joined in this cause, the said Baker to support the said issues on his part proved, that the said John Preston was elected treasurer of the commonwealth according to the laws and constitution, on the day of January 1809, and was successively and annually, in like manner, re-elected to, and continued in the said office, from year to year, until the 17th day of January, 1820, when he resigned the said office; and on the day of January, 1820, the said Jerman Baker was elected his successor in the said office.”</p> <p>“The said jerman Baker then gave in evidence the annual reports made to the General Assembly, by the said John Preston, from the said day of January, 1809, to the 13í/¿ day of January, 1819, (inclusive;) and the annual reports of the joint committees of both houses of Assembly-, from the said day of January, 1809, to the said 13th day of January, 1819, inclusive; and the books of the Treasury Department, during the whole period ■during which the said John Preston was treasurer of the commonwealth, by virtue of his successive annual elections aforesaid. And according to the said annual reports, and the said books of the treasury department, it appeared, that on the 1st of Oct. 1818, (being the end of that fiscal year) there ought to have been a balance in the treasury, to the credit of the commonwealth, of §390,702,95; and ■on the 18th day of January, 1819, being the date of the bond on which this motion is grounded, and the day of the commencement of the said John Preston’s last term of office, there might to have been a balance in the ireasury, to the credit of the commonwealth, of $648,412,23; and on the 17 th day of January, 1820, when the said John Preston resigned his said office, there ought to have been a balance in the treasury, to the credit of the commonwealth, of $333,297,07.-—But the said Jerman Baker proved, that on the said 17th day of January, 1820, he found in the coffers of the treasury office, and to the credit of the treasury in the two banks of Virginia, only the sum of $250,197,77; so that there was a differ^ ence of the sum of $83,099,30, between the balance so shewn by the books of the treasury department, as the sum which ought to have been in the treasury to the credit of the commonwealth, on the said 17th day of January, 1820, (when the said Preston resigned his office,) and the cash actually in the treasury: and that the said Jerman Baker, the now treasurer, immediately passed to the credit of the commonwealth, the said sum of $250,197,77, as so much money turned over to him by his predecessor; of which sum of $250,197,77, the sum of $248,086,62 was money in the two banks of Virginia, to the credit of the treasury, and the rest was in the public coffers in the treasury office; and the said sum of $248,086,62 was carried, by the said two banks, to the credit of the said Jerman Baker, the now treasurer, immediately that he took charge of the treasury, without any check for the same drawn in his favor by the said John Preston, the late treasurer, in whose name, as treasurer, the treasury account at bank stood; and the said transfer at bank was made in the presence of the said John Preston’s agent, who went to the hank with the said Jerman Baker, to have such transfer made; and the said Jerman Baker gave his receipt to the said John Preston, for the said sum of $250,197,77 so turned over by the said John Preston to the said Baker. And it further appeared, by the said books of the treasury de». partment, upon examination and correction, that there were errors and omissions in the Ledger (on which the said annual reports were founded) against the commonwea^> to the amount of $4,488,08; of which $3,488,08 was an error in addition in the accounts of 1810, and the rest consisted of divers errors and omissions all prior to June, 1818. And the said Jerman Baker proved, that the said John Preston, so being treasurer of the commonwealth for the time being, on the day of July, 1814, received of the Bank of Virginia the sum of $39,000, being for dividends due to the commonwealth, on the stock of that bank owned by the commonwealth; which sum of $39,000 was passed by the said bank to the credit of the said John Preston, as treasurer of the commonwealth, on the day it was so by him received; but it was never audited, nor credited by the said John Preston to the commonwealth, on the books of the treasury department. And the said Jerman Baker further proved that the said John Preston, so being treasurer for the time being, on the day of July, 1816, received the further sum of $5,431, 57, for interest on treasury notes of the U. States, the property of the commonwealth, which he deposited to his credit, as treasurer of the commonwealth, at the said bank of Virginia; but the same was never audited, nor credited to the commonwealth by the said John Preston, on the books of the treasury department. And the said Jerman Baker further proved, that the said John Preston, so being treasurer for the time being, received, on the day of March, 1816, the further sum of $510, for interest on other treasury notes of the U. States, belonging to the commonwealth; but the same was never audited, nor credited to the commonwealth, on the books of the treasury department. And thereupon the said Jerman Baker, the now treasurer, claimed on his said motion and action against the said defendants, the said deficit of $83,099,30; and the said sums of §4,488,08, §39,000, §5,431,57, and §510, amounting in all to the sum of §132,528,95.”</p> <p>“Then the said defendants, to support the issues joined on their part, proved, That the said John Preston, so being treasurer for the time being, on the 17th day of An-gust, 1818, received of John Chew, a check on the hack of the United States, at Philadelphia, for §146,500 for so much money due by the U. States to the commonwealth, which sum had been duly audited, and was passed by the said John Preston on the same day to the credit of the commonwealth, on the books of the treasury department; but the said Preston on the same day, did not deposit the same at the bank to his credit, as treasurer, on official account, but did deposit the same to his own individual credit at the bank of Virginia, on his individual private account, blending the same with his private funds at his credit at the said hank; and the same was thereafter checked for by him, in his own name, in like manner as for Ms own money, so as to exhaust the whole amount thereof; but whether the same when so checked for, was applied to his own use, or to that of the commonwealth, or when it was so checked for as to be exhausted, did not appear; nor was any evidence adduced on the part of the said Jerman Baker, to shew that the said John Preston ever applied any part of the said §146,500 to the use of the commonwealth, or returned any part the same in any wise into the treasury, other than what may be collected from the facts and. proofs heroin stated.”</p> <p>“That on the 1st October, 1818, (being the end of that fiscal year) when according to the annual reports of the said John Preston, then treasurer, and of the joint committee of both houses of Assembly of the ISth day of January 1819, and the books of the treasury department, and other evidence adduced on the part of the said Jerman Baker: (as above stated,) there ought to have been in the treasury to the credit of the commonwealth, the sum of $440,132,60,'(c) there was in the two hanks of Virginia, to the credit of the said John Preston as treasurer of the commonwealth, on his official account there, only the sum of $147,919,17, shewing a difference between the sum which ought then to have been in the treasury, accoW^nS to the said evidence adduced on the part of the said Jerman Baker, and the money'at the banks to the credit of the treasury, of 292,213,53. That on the 18th day of January, 1819, when according to the same •evidence adduced on the part of the said Jerman Baker, there ought to have been in the treasury the sum of $697, 841,88 (d) to the credit of the commonwealth; there was in the two hanks of Virginia, to the Credit of the said ■John Preston, as treasurer of the commonwealth, on his official account there, only the sum of $406,150,73; shewing a difference between the said sum which ought then to have been in the treasury-, according to the same •evidence adduced on the part of the said Jerman Baker, and the money at the hanks to the credit of the treasury, •of $291,691,15. And the defendants proved, by a clerk in the treasury department, employed there during all the years 1818, and 181‘9, and until the 17th January, 1820, (inclusive;) that there was not usually kept in the public coffers in the treasury office, during the period aforesaid, more than $5,000, very seldom as much as $10,000, and never, within the recollection of the witness, as much as $50,000 for one whole day at a time. And by the ■evidence of the same clerk of the treasury department, and the official accounts of the said John Preston, as treasurer of the commonwealth, with the two banks of Virgirda, compared with the books of the treasury depart-r,lent, and the other evidence aforesaid adduced on the part of the said Jerman Baker, it appeared that there was continually, and every day from the said 17th day of August, 1818, to the said 18 Ih day of January, 1819, in-elusive, the bieperestce of $350,000, at the least, between the balance stated on the books of the department, and by the other evidence adduced on the part of the said Jerman Baker, as the balances due to the commonwealth, and the amount of the actual sums in the public coffers in the treasury office, added to the balances at bank, to the credit of the treasury.</p> <p>“ Whereupon the said Jerman Baker by Ms coimsel moved the court, to exclude the evidence so as aforesaid adduced by the defendants from the consideration of the jury, as being inadmissible evidence, so far as the same was offered to exonerate the said defendants from responsibility for the balance of $83,099,30, appearing from the said reports of the said John Preston, as treasurer, and of the joint committees of both houses1 of Assembly, and the books of the treasury department, to he due at the time of the said Preston’s said resignation, as above stated. But the court was of opinion, that the said motion should be overruled, and admitted the said evidence of the defendants as proper for the consideration of the jury.”</p> <p>“And then the said Jerman Baker by counsel insisted, that the balance due by the said Preston as treasurer for the year 1818, and the preceding years, at the time of the execution of the bond on which this motion and action is founded, must be intended to have afterwards come to his hands in virtue of his office so as to charge the said defendants as his sureties for his last term of office aforesaid,* and that the fact of his keeping the treasury books, as if the amount called for by the said books was on hand, amounted to an admission, by Mm, that he held the whole sum so called for by the books in his official character, and was an election by him, to hold the said sum previously due by him, in his official character, as treasurerfor the year 1819. And the said Jerman Baker by counsel also insisted, that the said sum of $250,197,77, so turned over by the said John Preston upon his said resignation in manner aforesaid, being so turned over by the said Preston, without any specific direction as to the application thereof, was a payment by the said Preston to the commonwealth, which the said Jerman Baker, as treasurer of the commonwealth, had a right to apply to the extinguishment of any balance due by the said Preston, as treasurer to the commonwealth, prior to the commencement of his last term of service, and the date of the bond on which the present motion and action was founded. Whereupon the said Jerman Baker by his counsel moved the court to instruct the jury, that notwithstanding the facts proved by the said defendants, (supposing them fully proved) he is entitled in law to recover of the said defendants the sum of $83,099,30 (the deficit appearing on the treasury books as kept for the year 1819, in manner before stated;) and also the amount of the said several sums of $4,488,08, $39,000, $5,431,57, and $510, herein before mentioned and explained. But the court was of opinion, that the said defendants, in this motion and action, are only liable for due application by the said John Preston, of the sum actually in the treasury, at the commencement of the said John Preston’s last term of oiiice, and at the date when the said defendants executed the bond aforesaid, as the said Preston’s sureties; and of the sums received by him during his last term of office aforesaid; and that the said Baker is not entitled to recover the said deficit of $83,099,30, of the said defendants in this motion and action, on the issues joined, on the ground that the keeping of the said books of the treasury department, by the said John Preston, during his said last term of office, in the manner herein before stated, was an election by the said John Preston, to hold the money so appearing by the books to he due to the commonwealth, in his official character of treasurer for his said last term of office, (as contended by the said Baker’s counsel,) if it roas in fact eloigned from the treasury during the year 1818; unless it appeared, that the said money was actually applied to public use, or actually returned by the said Preston to the treasury during his said last term of office; and by him again eloigned and withdrawn from the treasury, and to his own use converted, dining his last term of office aforesaid. And the court was further of opinion, as to the amount of the said several sums of $4,488,08, $39,000, $5,431,57, and $510, that it was not the right of the said Jerman Baker to apply the said sum of $250,197, 77, [so as aforesaid turned over by the said Preston, on his said resignation, to the said Baker as his successor,] to the extinguishment of the said debt due by the said Preston to the commonwealth, on account of the several sums so withdrawn from the treasury, and applied to his own use previous to the commencement of his said last term of office, in the manner herein before stated and explained; because the said sum of $250,197,77 was in fact the commonwealth’s own money, and not a payment of so much by the said Preston to the said Baker, his successor. And the court instructed the jury accordingly, and overruled the said motion for an instruction to the jury, made by the said Baker’s counsel. To all which opinions of the court, herein above stated, the said Baker by his counsel excepted, and prayed the court to sign and seal this his Bill of Exceptions; which is done accordingly.”</p> <p>The jury found for the plaintiff, on the writ of inquiry awarded against John Preston, and assessed the damages at one cent: and as to the issues joined between the plaintiff and the other defendants [the sureties,] there' was a verdict for the defendants. The judgment as to* John Preston was, that the plaintiff take nothing non ob* veredicto; and that the plaintiff take nothing by Ms motion against the other defendants,. but that they go helice without day.</p> <p>The appeal was from this judgment, and now the cause was opened by</p>

<p>O, committee of D, a lunatic, files bill for sale of D’s land. There is a decree for a sale, and S, the commissioner, sells and reports 3 the purchaser, and returns his bonds with 0 as his surety. The report is confirmed, and S reports that he has collected the purchase money and paid it to 0, the committee, and returns the receipts of 0 with his report. This report is confirmed, and a commissioner is directed to convey the land to J, or as he shall direct; and the commissioner, by direction of J, conveys it to 0. Afterwards, C and his wife, who is a sister of D, convey the land to G, in trust to secure a large debt to B, After the death of D and of C,’ J and S, the widow of C, one of the heirs of D, files her bill against the administrator of , 0, and the trustee G and B, to set aside the sale and conveyances to 0 and G, on the ground that 0 was in fact the purchaser, which was forbidden by the statute. She does not allege in her bill any error on the face of the proceedings, or after-discovered evidence ; nor does she allege or prove notice of the fact she relies on, by G or B ; and they demur and deny notice. Held :</p> <p>1. The bill is fatally defective as a bill of review, for failing to show defect in the proceedings, or to allege that she had discovered evidence since the decree, that she could not by reasonable diligence have ascertained before.</p> <p>% It is fatally defective as a bill to impeach the decree for fraud, as against B for failing to charge him with notice of the fraud.</p> <p>3. A purchaser for value without notice, actual or constructive, having obtained a conveyance, will not be affected by a latent equity, whether by lien, or incumbrance, or trust, or fraud, or any other claim.</p>

<p>1. Attorneys at law are liable as ordinary bailees for money collected for tbeir clients.</p> <p>2. An attorney receiving in February 1862, Confederate currency, which was then the only currency, and very little depreciated, is not liable to his client for receiving such money, he not having forbade it.</p> <p>3. An attorney having received Confederate currency for a debt due to his client, deducts his fees from the amount, and deposits the balance in a bank in good credit, not in his own name but to “ collection account,” an account in which he deposits all moneys collected by him for his clients, and on the book of the bank, the name of the client is written opposite the sum deposited for him. The client not calling for his money until the end of the war, when the bank has failed, the attorney is not liable for it.</p> <p>■4, The client living in Maryland, but the place of his residence being unknown to the attorney, though the client comes to the town where the attorney lives occasionally during the war, when the Federal forces have possession of it, but does not call upon the attorney or let him know he is there; the attorney is not liable for failing to give him notice that the money has been collected.</p> <p>J5. Though parol evidence of the contents of a book has been admitted, though objected to, without excuse for failing to produce the book, yet, if after exception has been taken, evidence is introduced showing good reason why the book cannot be produced, the error is thereby cured.</p>

<p>1. There is a decree by default against the defendant, and he gives notice to the counsel of the plaintiff, that he •will move the judge in vacation to reverse the same, and to make such order in the cause as might be deemed just and proper. This notice is not served on the plaintiffs, but on their counsel in the cause. The judge may properly refuse to entertain the motion, on the ground that the notice was too vague and indefinite to warrant the court to amend or reverse the decree, and also because it had not been served on the plaintiff. And for the same reasons the appellate court may dismiss the appeal as improvidently allowed.</p> <p>2. If it appears from the bill that the plaintiff has no interest in the sub j ect matter of the suit, the ob j ection may be made by demurrer. If this does not appear on the bill, the objection may be taken by plea, or at the hearing of the cause. But if the objection is not taken until the hearing, if it appears from any part of the record that the plaintiff has an interest in the subject matter of the suit, the appellate court will not reverse the decree because such interest is not stated in the bill.</p> <p>3. When the plaintiff has an interest in the subject matter of a suit, the bill may be amended, and other persons having the same interest, may be joined as co-plaintiffs.</p> <p>A. S sues C in equity. In the bill he describes himself as secretary of the B society, and says that he placed in the hands of 0 certain debts for collection, some of which 0 had collected; and that 0 refused to pay over the money or account with S. It may b« presumed from these averments that S had an interest in the subject matter of the suit; and the bill may be amended making other members of the society co-plaintiffs, and averring the interest of S and the other plaintiffs in the subject.</p> <p>5. B society is a voluntary society;-composed of between four and five hundred members. Some of them may sue C in equity for the benefit of all, for an account and for payment of the money collected, and the return of the evidences of debt unpaid. And the court has jurisdiction on the ground, either of discovery or from the difficulty of proceeding at law.</p> <p>6. Courts of equity have jurisdiction in matters of account involving the transactions and dealings of trustees and agents, wherever it appears that a discovery is necessary, or there are mutual accounts between the parties, or the remedy at law is not plain, simple and free from difficulty.</p> <p>7. Though the notice for taking depositions, and taking the account by the commissioner, is not filed, yet, as the record says the depositions were taken pursuant to notice, and it appears that the defendant claimed commissions before the commissioner, it will be presumed in the appellate court, in the absence of proof to the contrary, that notice was given.</p> <p>8. The report of a commissioner having been completed on the 10th of April 1869, and the decree made on the 22d of October following, in the absence of anything showing the contrary, it will be presumed by the appellate court, that the report and account were returned and acted on according to the requirements of the statute.</p>

<p>This was an action of debt in the Circuit court of Augusta county, brought in June 1866, by Abram Stover, assignee of Jacob Stover, against John E. Hamilton and John Hamilton, to recover the amount of a bond for six hundred dollars, executed by the Hamiltons to Jacob Stover on the 16th of November 1862. The defendants pleaded usury in the bond, and also that the writing was given for a loan of Confederate treasury notes by the plaintiff’s assignor to John E. Hamilton, which notes at the date of the loan were not worth more than one-third or one-fourth of six hundred dollars. On these issues the case was tried; and the parties dispensing with a jury, submitted the whole matter of law and ^ict to ^e com’k And the court rendered a judgment for the plaintiff' for two hundred and forty dollars, the value of the Confederate notes at the date of the bond, and interest thereon from the 17th of October 1865, the date of the demand of payment. The plaintiff thereupon excepted to the opinion of the court,' and on his motion the evidence was certified upon the record; and the plaintiff obtained a supersedeas.</p> <p>The bond on which the action is founded, is as follows : $600. On demand, we or either of us, bind our- • selves, our heirs, &e., to pay Jacob Stover the just and full sum of six hundred dollars, without interest, it being for money borrowed on the following conditions, that no interest will be required until the money is demanded, then a reasonable time will be given by said Stover to pay the above sum, when interest will begin and continue from the demand till paid. Given under our hands and seals, this 15th day of [November 1862.</p> <p>Jacob Stover and John E. Hamilton were the only witnesses. In [November 1862, Stover was a farmer living in Augusta, over the military age, and the defendant, John E. Hamilton, was a young man, and a soldier in the Confederate army. Stover having Confederate notes in his possession, which he had taken for hay, which he had sold, and in which he had no confidence ; and Hamilton having borrowed some Confederate money which he wished to return, and learning that Stover had some money which he wished to lend, Hamilton applied to Stover to borrow it; and Stover agreed to lend it in Confederate notes. • But Hamilton being in the army, feared that Stover might call on him when it would not suit him to pay, and therefore declined to borrow unless Stover would agree to charge no interest until he demanded the money, and to give him a short ór reasonable time after demand, to raise the money ; and to this Stover agreed; and this provision of the bond ' was inserted at Hamilton’s instance. Hamilton says he received Confederate money, and expected to pay it in a short time in the same currency ; but nothing was said by either party, as to the kind of currency in which the borrowed money was to foe returned. Stover says he did not expect to get gold or specie, but did not intend to make a demand until the Confederacy failed, or until Confederate notes ceased to circulate, and until good money should prevail; though he did not communicate this intention to Hamilton. At the time he took the bond he intended to take a bond upon which he could demand good money to the same amount of the $600 of Confederate treasury notes; which at the time he knew to be worth only $200 in gold. He demanded payment of the money on the 17th of October 1865 ; and in May 1866 Hamilton offered to pay him in legal tenders, what he supposed' was the true value of the bond, viz: $200 in gold, converted into legal tender currency ; amounting to between $275 and $300, which Stover refused to receive.</p>

This is a supersedeas to a judgment of the Circuit court, reversing a judgment of the County court of Augusta, rendered in a joint action of debt against the maker and endorsers of a negotiable note. The maker confessed judgment. The endorsers, four in number, the last of whom was Robert G-. Biekle, besides pleading the general issue, put in also the plea of usury ; on which.issue was joined.

<p>Í, “Bought of Maj. J. W., twenty-seven head of cattle weighing 38,152 pounds, at six and a half cents—$2,479.88. Mr. W. M. T., you will please settle with Maj. W. the above account. J. C.” In assumpsit by W. against 0. to recover the amount; the paper being of doubtful meaning, C. may introduce parol evidence to show that T. was chief commissary for the district in the Confederate States service, and that C. was his agent, and as such bought the cattle of W., who knew he was buying as such agent.</p> <p>2. The principles on which the liability of agents, both private and public, will be ascertained and fixed, considered by Moncure, J.</p>

These were three actions of debt in the Circuit court of Rockingham county, brought in May 1867, by P. M. Dice against Philip Pharis, Jr., upon three bonds given for the purchase money of real estate. The-bonds bore date on the 30th of December 1862, and were payable, the first one day, the second one year, and the third two years after date. The only question in the cases arises on the instructions refused and given by the court.

<p>Giving farther time, or entering into a new contract with the drawer of a negotiable note, does not discharge the indorser.</p>

On the 18th of March 1863, Mary L. Moore, widow of Samuel R. Moore, ¥m. A. Ruff and Mary E. his wife, who was Mary E. Moore, and the… Held: that there was gross error apparent on the face of the record in the original suit, in relation to Mrs. Moore’s right to the land, she being in fact entitled to the whole ; that the construction of the deed from Wilson and wife to Moore and wife not having been raised by the plaintiffs, the decree of the court ordering a sale was not…

A Bur, was brought in equity by Adams, against Peter and Carter Beverley, to compel a specific performance of an agreement entered into with Peter Beverley; or to subject tbe Cloverdale furnace and some adjoining lands to sale, for the purpose of raising the purchase money agreed to be paid by Beverley to Adams.

<p>Trespass for the mesne profits of land recovered in ejectment against A. lies against his executor.</p> <p>The 64 § ch. 104, Rev. Code, is an extension of the 4th Ed-a. III. ch. 7, de bonis asportatis.</p>

Dempsey was born the slave of one David and descended to his son William. He hired himself of his master William Wallace, and having accumulated the sum of §100, agreed to pay it, and §200 more at a future day to his master, provided he would emancipate him. The proposal was accepted.

About the 1st of January 1861, the sum of sis thousand dollars was paid into the Bank of Virginia, to the credit of Mrs. Martha B. L. Jeffries, then of Washington city, in payment of a debt that had been some time due to her. Of this sum she had drawn out a thousand dollars prior to April 1862.

<p>A charity for the benefit of the poor of a parish given in trust to the minister and vestry; when there ceased to be either, was vested in the overseers of the poor for the parish, by the act of 1805,(a) and they may recover the charity in equity.</p> <p>The testator leaving the mode of investing the fund to the discretion of the trustees, a court of equity should not interfere by directing the maimer of investment.</p>

<p>Miiiek brought debt against Beverley, M‘Luer, and Hiort, in the Superior court of law for Rockbridge county, on a supersedeas bond, given by them jointly, to Miller, for the successful prosecution of the supersedeas to a judgment, given in the county court of Rock-bridge &c. with the usual condition annexed.</p> <p>The suit abated as to Beverley and Hiort, on a return of their being no inhabitants.</p> <p>The breach assigned was, that the Superior court was of opinion there was no error in the judgment of the county court; and on the 15th April 1812 “adjudged” that it should be affirmed: and that Miller should recover of Beverley his damages, at 10 per cent, and his costs. The clerk by mistake omitted to record the judgment as to the 10 per cent, damages; and at a subsequent term the court permitted the entry to be amended.</p> <p>At the September term 1813, the defendant pleaded that he had not broken the covenant: in 1816 the defendant had leave to withdraw this plea; he then craved oyer of the appeal bond, and of the record of the court in which the judgment was examined, pleaded no such record) and demurred to the declaration. There were five causes of demurrer specifically assigned: one was, that the Superior court in entering judgment on the supersedeas, used the words “therefore it is adjudged,” instead of “therefore it is considered.” There was no joinder in demurrer. The court nevertheless proceeded to give judgment on the demurrer, against the plaintiff; who appealed.*</p>

Austin’s executor brought detinue against .Tones, for several negro slaves by name, and of specified value; among them was one called Beck; the defendant pleaded non detinet. There was a verdict for the plaintiff; but the jury found also, that Beck who was included in the first part of the verdict, died after suit brought and no damages were given. The court gave judgment for all the slaves but Beck; of her, no mention was made in the judgment. The plaintiff appealed.

This was ail action of debt in the Circuit court of Augusta county, brought in April 1858, by Wm. Ramsey, and afterwards revived iu the name of his administrators, against Moses II. McCue and three others, his sureties, upon a bond executed by McCue, as deputy of Ramsey, sheriff of Augusta. There was a judgment for the defendants ; and the plaintiffs obtained a supersedeas to the District court of appeals at Chailottesville ; and it was transferred from thence to this court.

<p>This is an appeal from a decree of the Circuit court of Warren county, in a suit pending therein, in which Thomas B. Massie was plaintiff, and Green & Suttle, partners, were defendants. The bill alleges that Massie, in November 1856, was the accommodation endorser of John W. McKay, upon a negotiable note in the Farmers’ Bank of Alexandria, for the sum of nine hundred dollars, discounted for the benefit of Green & Suttle. That McKay, expecting to get indulgence upon said debt, obtained from Massie his endorsement upon a number of printed forms of negotiable notes signed by McKay, blank as to sums and dates, for the sole purpose of being used for the renewal of this note of $900, according to the usages of the bank. That the debt was afterwards reduced to $600 ; which sum was due at the death of McKay, on the 24th of May 1857. *</p> <p>It is further alleged in the bill, that after the death of McKay, and after his estate was ascertained to he insolvent, Green & Suttle claimed to hold two other negotia- ■ ble notes of McKay, endorsed by Massie ; one dated the 8th of May 1857, for $610.97, aud the other dated the 22d of May 1857, for $162.49; both payable at said bank. That suit was brought upon these notes, and judgments rendered against Massie. He charges that these notes are two of the blank notes endorsed by him for the renewal of the note of $900 ; that the blanks had been filled, as to dates and sums, by Green & Suttle after the death of McKay, and to cover some liabilities on his part to Green & Suttle, other than the debt of §900. He avers that he had no means of proving these facts in the suit at law, and he was therefore compelled to submit to a judgment. He charges that the said notes are two of the blanks endorsed by him. for McKay for the renewal of the note for $900, which were placed by McKay in the hands of Green & Suttle for that purpose and no other ; and that they, without any authority from McKay or the plaintiff, and in violation of the understanding of the parties, filled up the blanks in them with sums of money to cover other indebtedness of McKay to them; and this was done after the death of McKay, and after it was ascertained that he was insolvent. And making Green & Suttle defendants, he calls upon them to answer ; and prays for an injunction to the judgments, and for general relief.</p> <p>Suttle answered the bill. He denies that the blanks were placed in the hands of Green & Suttle for the purpose of renewing the note of $900 ; but says that said notes, for said purpose, were deposited singly, and not long in advance of the time of renewal. He denies that the note of $610.97 was a note deposited by McKay for the renewal of the note of $900, or that it was put into their hands for any other purpose than the one to which it was applied ; and he states the consideration of the note. He also says that the note for $162.49 was delivered to Green & Suttle by McKay' in his lifetime; and •he states the consideration of that note. He admits the blanks in the notes were not filled up until after the death of McKay; but avers that they were filled up with the amounts agreed upon with McKay, and for which he was their debtor. He denies all the allegations of the bill not admitted to be true.</p> <p>Green also answered, stating that he did not live in Alexandria, and was not an active member of the firm, and he refers to and relies upon the answer of Suttle.</p> <p>The cause came on to be heard on the 26th of August 1867, when the court made a decree perpetuating the injunction : and Green & Suttle obtained an appeal to the District court of appeals at Winchester ; from which it was transferred to this court.</p>

John Falls, of Augusta county, died intestate in'the year 1825, leaving a widow and several infant children; and Mrs. Falls and her father, Jacob Acord, qualified in the County court of Augusta, as administratrix and administrator on his estate. Acord seems to have been the acting administrator, and he settled his first administration account before commissioners appointed by the County court in 1832.

This is the sequel of the case of Dixon v. Me Cue als., reported in 14 Grattan, 540. When the cause went back to the Circuit court, Wm. Held: 1st, that the court having directed the sale of the land in June 1860, and the sale having been made in March 1863, and confirmed by the court in June 1863, the title of the purchasers should not be affected, even if tbe last named decree were reversed in an appellate tribunal; and therefore the Circuit court had no authority to set…

In February 1866, Wm. T. Turner’s administrator instituted an action of debt in the Circuit court of Rock-bridge county, against Haney Turner, Giles Gunn, Wm. C. Gilmore, and A. B. Tanquary, to recover the sum of $1,267.30, the amount of a bond executed by the defendants to the plaintiff. The process was executed on all the defendants except Tanquary; as to whom it was silent.

This was au action of covenant in the Circuit court of Augusta county, brought in January 1867, by Simon II. Hilb, for Abram Singer, against J. B. Peyton and three others. The action was founded on a bond executed by the defendants to Hilb, bearing date the 9th of June 1863, and payable two years after date, for $5,000.

In April 1869, Asa Wall, assignee, sued out of the clerk’s office of the Circuit court of Frederick county, a ■writ in debt against Samuel E. Atwell, for eleven hundred and seventy-six dollars, with interest from the 25th of November 1862. At the May rules a declaration was ■filed setting out a note for $1,176, executed by Atwell to V. Wall, and assigned by her to the plaintiff.

This ease was argued at the August term of the court held iu Staunton ; and was decided at the November term held in Richmond. The facts of the case are stated by Judge Moneure in his opinion.

<p>This case was heard at the August term at Staunton, and the case was decided at the November term at Richmond.</p> <p>In March 1867, Jesse Ralston filed his bill in the' Circuit court of Rockingham county, against Jacob P. Effinger, Henry Elick and Timothy Quinlan to enforce the vendors, and also judgment, liens, against a tract of land in the county of Rockingham, which Ralston had sold to Effinger, and parts of which Effinger had sold to the other defendants.</p> <p>In October 1858, by a written agreement under seal, Ralston sold to Effinger a tract of land estimated to contain three hundred and thirty-one acres, for the sum of $12,000, of which $1,000 was to be paid in cash, Effinger was to discharge a debt of $3,000 due to Robert Grey, for which there was a lien on the land ; and the remainder was to be paid in seven equal annual payments of $1,142.85. And Ralston was to convey the land by deed with general warranty, in which a lien was to be reserved for the purchase money.</p> <p>Effinger was put into possession of the land, and in 1860 Ralston and wife conveyed it to him with general warranty. In the same year Ralston recovered a judgment against Effinger on the first bond; and in 1866, he recovered j udgments on the other bonds. He set out the foregoing facts in his bill; stated that Effinger had lately sold to • Flick about eight acres, and to Quinlan about eighty acres of the land.' That the debt of $3,000 to Grey, which, by the contract, Effinger had assumed to pay, was still unpaid. And he prayed that the land might be sold for the payment of the judgments ; and for general relief.</p> <p>The defendants demurred to the bill, and Effinger also answered. He stated some small payments he had made on the judgments, and also some interest on the debt to Grey ; and he says that the plaintiff derived his title to the land, except about thirty acres, from his father, David Ralston, and that David Ralston had not made a deed to him for it: though said David had joined with the plaintiff’ in conveying the property to the trustee in the deed to secure Grey’s debt.</p> <p>In May 1867, the cause came on to be heard, when the court overruled the demurrer, and directed a commissioner to ascertain and report the amount due from Effinger to the plaintiff, on account of the purchase of the land ; and leave was granted the plaintiff to file an amended bill. This amended bill ihade the heirs of David Ralston, deceased, H. Jewett Grey, to whom the debt due Robert Grey, had, on the death of the latter, been transferred, parties.</p> <p>The commissioner returned his report, and the cause came on again to be heard, when it appearing by said report that there was due from Effinger to the plaintiff $7,780.57, of principal money due by judgment, with interest from the dates when the payments fell due, and that Effinger was further indebted to Grey in the sum of $8,000, with interest from January 1st, 1849, subject to some small credits named, and that Ralston could make a good title to the land, the court made a decree against Effinger in favor of Ralston and Grey, for the sums ascertained to be due to them respectively; and unless he paid the money within sixty days from the date of the decree, the sheriff who was appointed a commissioner for the purpose, should proceed to sell the land, on the terms of one- „ fourth cash, and the balance in four equal annual payments, bearing interest from the day of sale ; the title to be retained until the whole purchase money was paid. And out of the proceeds of sale he should first pay off Grey’s debt, and then pay to Ralston the amount ascertained to be due to him. The decree provided that the land in the possession of Effinger should be first sold ; and if that was not sufficient to pay the debts, the residue of the tract; or so much as was necessary, should be sold.</p> <p>The commissioner returned his report of the sale, by which it appeared that the land still in the possession of Effinger, consisting of two hundred and fifty acres, was sold at $31.10 per acre, and Ralston became the purchaser ; that the land in the possession of Quinlan was sold at $32.70 per acre, and he was the purchaser ; and that Flick became the purchaser of the eight acres in Ms possession at §25 per acre. The commissioner says “ that in his opinion, as well as of persons w'ho are disin- 1 terested with whom he has conversed, all of these sales have been judiciously made, and ought to be confirmed.” And he says that the price realized from the sales exceeds considerably the amount which Effinger was to pay •for the property when it was in good condition ; and that it has been much injured since his purchase.</p> <p>The commissioner returned with his report a number of affidavits of farmers residing near the land aud knowing it well, expressing the opinion that it went for its full value. There is also an affidavit from Quinlan, in which he says, that though he contracted in 1866, or February 1867, to pay Effinger §45 per acre for the eighty acres he purchased, yet he was deceived by Effinger in regard to the lines and in other respects, in such way that he determined shortly afterwards not to pay for it. And he did not intend to pay any more than he contracted to pay at the sale by the commissioner ; and that it is not worth that much.</p> <p>Effinger excepted to the report, aud objected to the confirmation of the sale, upon the ground that the court should have confirmed the sales made by Effinger to Quinlan and Flick ; and should have subjected the purchase money due to Effinger to the payment of the purchase money due to Ralston, instead of virtually setting said sales aside and ordering a resale. 2d. Because of inadequacy of price, as shown by affidavits filed. There were affidavits also filed by persons living in the neighborhood of the land, who express the opinion that the land was worth forty-five dollars per acre.</p> <p>The cause came on to be further heard on the 3d day of November 1869, when it was decreed that if Effinger files with the clerk of the court bond with good security in the penalty of §15,000, conditioned that at the next offer of the land for sale, he will bid five per cent, more than the commissioner sold the land for, including costs of said sale, and upon the same terms, and comply with them, then the commissioner should proceed to advertise and sell the said land upon the terms prescribed in the former decree. But if Effinger did not execute said bond within sixty days from the rising of the court, then the sale made should, stand confirmed ; and the sheriff was directed in that event to deliver the land to the purchasers. Effinger obtained an appeal from this decree to the District court of appeals at 'Winchester, from whence it was transferred to this court.</p>

This was a suit in equity in the Circuit court of' Frederick county, brought in August 1869, by Isaac-Strider and John Goldsborough against The Winchester & Potomac Railroad ■ Company, to recover the amount of a bond for one thousand dollars, executed by W. L. Clark and E. M. Aisquith to Andrew Hunter and Edward E. Cooke, bearing date the 27th of December-1858, and payable on the 1st of May following.

This case was heard at the August term of the court held at Staunton, and was decided at the November term held at Kichmond. Thomas Hutchins, of the county of Augusta, died in 1851, having made a will which was admitted to probate in the County court of that county.

This case was heard at the August term of the court at Staunton, though the decision was made at the November term of the court at Richmond. In September 1865, John K. Booten instituted a suit in the Circuit court of the county of Augusta, against Frederick Scheffer, for a partition of real estate in the town of Staunton, known as the Virginia hotel.

Iii April 1867, James P. McCabe and others obtained against Thorpe II. Nance, iu the Circuit court of Bed-ford county, decrees for moneys which he owed as guardian ; and in July 1869, they filed their bill in said court, to enforce the lien of their decrees upon a tract of land in the possession of Nance.

<p>These five cases are alike in all respects, except in'the amounts involved in them. They were applications by the appellants respectively, to the Corporation court of Danville, held by the judge thereof, to be relieved from a double tax assessed upon them as commission merchants. It appears that the appellants,- during the year ending the 30th of April 1871, did business in the town of Danville, under a license as storagers ; and also a license' as tobacco auctioneers ; and at the beginning of the year ending the 30th of April 1872, applied to the commxssioner of the revenue to be reassessed for said business storagers and auctioneers; but refused to take licenses, or be assessed as commission merchants. The appellants having refused to take out licenses as commission merchants, the commissioner of the revenue assessed them with a double tax as such merchants, and in July they applied to the court to be relieved from these taxes. At the time of these double assessments, the appellants were engaged in the business of ware-housemen ; in which business they were accustomed to receive on consignment, and sell leaf tobacco only, loose and in prized packages, at auction, but in no other way, and they were also accustomed to receive consignments of such tobacco and make advances thereon in money, obut received no consideration in the shape of interest, or otherwise, on such advances ; keeping an account with the consignors, and paying to them or receiving from them, whatever balance appeared to be due either party upon settlement of accounts of the sale of such tobacco so consigned and received. For their services rendered in their business they made charges, for warehouse charges, commissions 2\, tax J, auction fee, and freight. In the case of Holland & Co., the double tax assessed amounted to six hundred and seventy dollars ; in the other cases it was less than five hundred dollars.</p> <p>Upon these facts the court below held that the appellants were properly assessed with the double tax as commission merchants, and confirmed the assessments. And thereupon the appellants respectively applied to. a judge of this court for a writ of error, which was awarded. The cases were heard together.</p>

<p>1. Beal estate is conveyed to a trustee for a married woman, the whole equitable estate being vested in her, free from liability for her husband’s debts; and with express power in her to mortgage, convey in trust or otherwise pledge the property or any part of it, and the trustee is on her request, to sell it and pay the proceeds to her or reinvest. The wife may subject the property to pay the-debt of, or raise money for, her husband.</p> <p>2. That money is scarce, and that the large cash payment required at a sale under a deed of trust, will be attended with great if not irreparable loss to the owner of the property, is no ground for an injunction to the sale.</p> <p>3. § 4 of ch. 179, Code p. 736, applies only to a pure bill of injunction ; not to a bill seeking other relief, to which the injunction sought is merely ancillary.</p> <p>4. In a ease of a pure bill of injunction to restrain a sale of real estate-in one county, if the plaintiff institutes his suit in another county or corporation, where the defendants answer and do not object to the jurisdiction ; the plaintiff cannot afterwards make the objection ; and the court may, under its general jurisdiction, hear and determine the case.</p> <p>5. Both plaintiffs and defendants being present by their counsel, the court makes an order removing a cause to the court of another county, assigning as a reason for making it, that it appears that the cause had been improperly brought in the court. If this reason was unfounded in fact, it would not invalidate the order which the court had power under the statute, Code ch. 174, § 3, p. 719, to make; and to which there was no exception.</p> <p>6. A Circuit court may make an order to remove a cause to another court, whilst the cause is at rules.</p> <p>7. A cause having been removed, and received by the clerk, the defendants may, upon notice, in vacation before the next term of' the court to which the cause is removed, move the judge to dissolve the injunction which had been granted.</p> <p>8. In such case the judge may in vacation, dissolve the injunction ¡ but he cannot then dismiss the bill.</p> <p>9. In such case upon appeal, the appellate court ■will amend the decree, and affirm it; there being no other error in the record.</p>

This was a suit in equity, brought on the 19th of December 1866, in the Circuit court of the city of Richmond, by Molineaux, Duifield & Co., merchants of Few York, against Wm. J. Gentry, Byron L. Sawyei’, merchants and partners under the name of Wm. J. Gentry & Co., Samuel Freedly, A. Vance Brown & als. The bill was filed on the 20th, on behalf of the plaintiffs and all other creditors of Wm.

<p>1. An action at law cannot be maintained upon a lost negotiable note,. whether not due or over due at the time of the loss.</p> <p>2. But if at the time of the trial a recovery upon the lost note would be barred by the statute of limitations, the action may be maintained.</p> <p>3. An action at law may be maintained upon a note that has been destroyed: The evidence should, however, satisfy the jury, beyond any reasonable doubt, that the note has been destroyed.</p> <p>4. M borrows of T, early in 1864, Confederate money, and executes his negotiable note, endorsed by D, for the amount, payable in ninety days, at the Bank of Virginia. This note is renewed from time to time, until the 4th of January. M then proposes to pay off the note to T, but at the request of T renews the note again, upon the promise of T that he will deposit the note in bank for collection ; and before the note falls due M deposits more than the amount of the note in the bank, where it remains until the bank fails. A few days before the note is due the bank is burned out, the note not having been deposited in bank. Held :</p> <p>1. M’s offer to pay, he consenting to renew the note, and his depositing the money in bank, was neither a tender, nor accord and satisfaction; and he is still liable to pay the amount due upon the note.</p> <p>2. The note being a renewal of a former note, and all the notes; having been given for the same loan of money, T might, have sued on the original note, or for the money loaned, and! therefore he is entitled to recover, though at the time the note sued on fell due Confederate currency was worthless.</p> <p>3. It is for the jury to fix the time when the scale of depreciation shall be applied to the debt; and it was error in the court to instruct them that the plaintiff was entitled to recover the value of Confederate currency at the date of the original transaction.</p>

<p>1. The keepers of a billiard saloon may be required to take out a license, and pay a tax thereon.</p> <p>2. The fact that capital is invested in billiard tables and other necessary furniture of a billiard saloon, which capital may be taxed as property, under § 32 of the act of June 1870, does not exempt the pursuit from a license tax.</p>

This was a suit in equity in the Circuit court of Hanover county, brought in February 1867, by James M. Carter against Evan S. Ragland and W. Goddiu, to enjoin the sale of a tract of land by the latter, as trustee in a deed of trust to secure the payment of four bonds, given for the purchase money of the land. The only question was as to the amount to be paid by the obligor, Carter. The facts are stated by Judge Christian in his opinion.

<p>In September 1867, Julia Belle Crane, an infant, by her next friend, Henry R. Crane, instituted a suit in equity in the Circuit court of the city of Richmond, against her guardian, Luther R. Spilman, and his surety, for an account of his proceedings as her guardian. Spilman answered the bill; and in November 1867, the court made a decree referring the accounts to a commissioner.</p> <p>In June 1868, the commissioner returned his report, to which Spilman filed several exceptions. This report was not acted on by the court; and in July 1869, the counsel for the plaintiff and the. defendant entered into a written instrument, by which, referring to the case and the court in which it was pending, they agreed that the case be referred for decision to John H. Guy, who shall consider and decide the same as if sitting as chancellor, and make a decree thereon, which shall be entered of record in the said court as if rendered by the said court; but with the privilege and right reserved to each side to appeal from the same, under the rules and regulations prevailing in appeals from the Circuit court to the court o f Appeals.</p> <p>On the 9th day of December 1869, at a regular term of the court, the decision of Mr. Guy in the case was entered upon the order book of the court among the orders of the court, and the orders of the day were signed by the judge in the usual manner. The entry on the order book commences as follows : Crane, for, &c. v. Crane’s guardian. And now at this day, to wit: At a Circuit court of the city of Richmond, held at the court room in-said city on the 9th day of December 1869, the parties by their counsel having agreed by writing, signed by them, dated July 1869, and tiled with the papers in the cause, to refer to me for decision, to consider and decide the same as if sitting as a chancellor, and make a decree therein, I have examined and considered the cause on the papers, &c. He then proceeds to pass upon the defendant’s exceptions to the commissioner’s report, sustaining some and overruling others ; and referring to a statement which ho had prepared showing the amount due from the guardian according to his views, he says the sum of $1,882.83 is hereby ascertained, declared and decreed to be due to the infant plaintiff, Julia Belle Crane, by her guardian, the defendant Luther R. Spilman, as of the 19th day of February 1868, to be duly accounted for by him to his said ward as of that date. John H. Guy.</p> <p>On the 10th of December, which was the day after the decision of Mr. Guy was entered of record, the court made the following order : On the motion of the defendant Spilman, who represents to the court that he desires to present a petition for an appeal from the decree entered in this, cause on the 9th of December 1869, it is ordered that the said decree be suspended lor sixty days, &c.</p> <p>Spilman applied to this court for an appeal, which was allowed.</p> <p>As this court did not decide or express any opinion upon the merits of the case, the facts in relation to them are not given in this report.</p>

On the 9th of May 1868, Kerngood & Brother recovered a judgment in the Hustings court of the city of Richmond, against ¥m. Fleishman and Jonas Heller, as partners under the name of Fleishman & Heller, for sis hundred and ninety-seven dollars and thirty-five cents, with interest and costs.

This was an action of assumpsit, brought in October 1867, in the Circuit court of Alexandria, and afterwards transferred to'the Circuit court of the city of Bichmond, by The Bank of the Old Dominion against ¥m. C.. Yeaton, to recover the sum of $561.07, with interest. The defendant filed the pleas of “ non assumpsit ” and te tender upon which issues were taken.

<p>1. The charter of the R. & D. Railroad Co. provides that “all machines, wagons, vehicles or carriages belonging to the company, with all their works, and all profits which may accrue from the same, shall be vested in the respective shareholders forever, in proportion to their respective shares, shall be deemed personal estate, and exempt from any charge or tax whatever. Held :</p> <p>1. The real estate owned and used by the company for the purposes of their business, is embraced in the provision, and is personal estate.</p> <p>2. All the said property, real and personal, is exempt from taxation, both State and municipal,</p> <p>3. The exemption from taxation of the real estate of the company in the city of Richmond, is not unconstitutional as being in conflict with the charter of the city, previously granted, giving the city the power to tax real estate for the purposes stated in the city charter: the city having ample means of taxation left for the payment of her expenses and debts.</p> <p>i. A city charter is not a contract between the State and the city, securing to the city the absolute power of taxation beyond the control or modification of the Legislature.</p> <p>5. The power of exemption, as well as the power of taxation, is an essential element of sovereignty; and can only be surrendered or diminished, in plain and explicit terms.</p> <p>6. Municipal corporations are mere auxiliaries of the government, established for the more effective administration of justice; and the power of taxation confided to them is a delegated trust.</p>

<p>1. T, trustee of V, in August 1863, sells real estate to M, part for cash ■and tbe balance on a credit of one and two years. Tbe casb payment and tbe first note is paid in Confederate money: but tbe evi- • dence is tbat tbe payments were to be made in tbe currency of tbe day wben tbey respectively fell due; and tbe last note falling due in August 1865, is to be paid in tbe currency of tbat day.</p>

<p>1. S borrowed of R, his brother, Confederate money, and gave a bond for it as follows:</p> <p>On demand, I promise to pay R the sum of $12,800, value received, borrowed money this date, to be paid when called for, in Confederate money, or whatever money may be current of the State, or our banks pay out to depositors. Witness my hand and seal. The bond bears date May 22d, 1863. Held :</p> <p>1. The debtor had a right to discharge it immediately with Confederate treasury notes.</p> <p>2. Where in a bond for the payment of money the words “on demand ” are used, it is payable at once, unless there be some plain provision in the bond that it shall not be so paid.</p> <p>3. The alternatives allowed the debtor were for his benefit, and do not restrict his right to pay at once by Confederate treasury notes.</p> <p>4. If it be a bond for a commodity, though a special demand may be necessary to entitle R to sue, the debtor may pay, without such demand.</p> <p>5. The words “ to be paid when called for,” do not change the legal effect of the instrument.</p> <p>6. The executor of S, who does not know of the existence of the bond, pays to R a debt which S owed him, and asks him if he has any other claims against S, and R says none but what the women can settle. He is told by the executor to produce them, that he is ready to pay them; but R does not, nor does he mention the bond; and after the close of the war he demands payment of the bond. He is concluded by his failure to present the bond for payment when called upon to do so, and can only recover the value of the currency at the date of the bond, with interest from that date.</p>

This was a suit in equity in the Circuit court of the city of Richmond, brought in December 1868, by Wm. M. Page and Emily C., his wife, and George A. Thomas and Mary Eliza, his wife, against David N. Walker, ex’or of John S. Walker, deceased; John M. Otey, Frederick Brauer, Henry Metzeger and others. The case is fully stated by Judge Christian in his opinion.

<p>This was a suit in equity in the Circuit court of the city of Richmond, brought in December 1868, by ¥m. M. Page and Emily C., his wife, and George A. Thomas and Mary Eliza, his wife, against David U. Walker, ex’or of John S. Walker, deceased ; John M. Otey, Frederick Brauer, Henry Metzger and others. The case is fully stated by Judge Chistian in his opinion.</p>

<p>In June 1869, Ann M. Wilson instituted] an action on the case against the Chesapeake and OhiojRailroad Company, to recover the value of a trunk|lost on the route from Richmond to the White Sulphur Springs. The declaration contained two counts. The first count alleged that the plaintiff, on the 15thaday of August 1869, delivered at Richmond, to the defendants, a certain trunk, containing goods of the plaintiff of the value of $515, to be carried by the defendants from Richmond to the White Sulphur Springs, and there to be delivered to the plaintiff for certain reasonable reward; and it thereupon was the duty of the defendants to take due care of the said trunk and its contents, whilst they so had it in charge, and to take due care inland about the conveyance and delivery thereof as aforesaid. Yet the defendants, not regarding their duty, &c., did not take due care of said trunk and its contents, whilst they had the charge thereof for the purpose aforesaid, or in and about the conveyance thereof; but on the contrary, &c., on the 16th of August 1868, took so little care, &c., and so negligently conducted themselves in the]premises, that said trunk and contents, &c., was lost to the plaintiff.</p> <p>The second count alleged that the trunk was]delivered to the defendants at Richmond, to be carried by them in certain carriages owned and used by thenfifor the carriage of passengers, goods, &c., upon and along a certain railway from Richmond to Covington, in the county of Alleghany, of which said railway the Chesapeake & Ohio Railroad Company, then known as and styled the Virginia Central Railroad Company, was the owner and proprietor; and from thence, to wit: from Covington to the White Sulphur Springs, &e., in and by certain stage coaches, and to be delivered at the White Sulphur Springs, for certain reward, &c.</p> <p>The defendant demurred to the declaration, and each count thereof; but the demurrer was overruled, and they pleaded “ not guiltyon which issue was joined.</p> <p>'Upon the trial of the cause it was proved, that on the 15th day of August 1868, the plaintiff bought at the ticket office of the Virginia Central Railroad Company, at Richmond, a through ticket, entitling her to go as a passenger from the city of Richmond to the White Sulphur Springs ; that she on that day took passage in the cars of the company with two trunks, one of which contained her wearing apparel, and the other contained ladies’ goods or merchandise; that the trunks were checked with checks which she took for through checks, as they were marked with the letters W. S. S. That before arriving at Covington, an agent of the company called for her ticket, and tore off a part of it, and returned the other part to her. She was not required at Covington to pay any additional fare for the stage part of the through line. That when she got to Covington she stopped at McElwee’s Hotel, and her trunks were taken with her; and on the next morning the stage for the Sweet Springs called for her and took her up, and took her two trunks on the .stage. That the stage drove to McCurdy’s Hotel in Covington, where the other passengers, who had come up with her, had stopped, and she was transferred to the stage going to the White Sulphur Springs, and before starting she warned the agent, who handed her from the one stage to the other, that her trunks were on the stage she was leaving, and asked him to change them to the stage she was entering ; apd he replied they were changed from the one stage to the other on which she was. This agent was the same man who acted as agent on the cars, and took the plaintiff’s ticket, 'and he was acting as agent for the stage line. On her arrival at the White Sulphur Springs, her trunk containing her wearing apparel was missing, and had not been recovered. It appeared further, that stages started from Covington for the White Sulphur Springs upon the arrival of the cars ; but passengers had the privilege of staying all night at Covington if they chose to do so. The line of stages to the Sweet Springs and the White Sulphur, belonged to the same firm of Trotter & Bro.</p> <p>It appeárs that by a contract entered into on the 31 st of August 1868, between the commissioners of Virginia and West Virginia, of the one part, and the Virginia Central Railroad Company of the other, made in pursuance of the 15th section of an act passed February 26th, 1867, as amended by an act passed February 6th, 1868, providing for the completion of a line or lines of railroad from the waters of the Chesapeake to the Ohio river, the said company was authorized to construct said work; and was thereafter to be known as "the Chesapeake & Ohio Railroad company.</p> <p>It appears further, that by a written contract between the Virginia Central Railroad Company, and James A. Trotter & Bro., stage proprietors, dated the 1st day of May 1867, Trotter & Bro; bound themselves, on the 1st day of the next June, and from that time during the continuance of the contract, to run a line of stage coaches daily, or so often as passenger trains of the railroad company were run west of Staunton, from and to various points ; and among others, from the terminus of the railroad to the White Sulphur, Sweet and Salt Sulphur Springs, making close ■ connections with said passenger trains, and at a speed of no less than four miles an hour, not including the time spent at night stands, but including all other stoppages. That they should at all times during the continuance of the contract, furnish a sufficient number of substantial and suitable coaches to accommodate all travel which may be brought by the said company to the western terminus of their road, &c.</p> <p>This contract was to last four years from the 1st of June 1867, but might be cancelled by the company upon thirty days’ notice, if the contract was not complied with by Trotter & Bro. The contract set out a table of charges from Richmond to the different points, and the portion of through charge which each party was to receive. And it was agreed that each should be solely and separately responsible for all casualties, accidents, and injuries which might occur on their respective portions of the aforesaid lines of travel; and if either ^he parties should be held responsible for any loss, damage or injury accruing on any part of said lines of travel owned by the other, such responsibility to be discharged by the party on whose lines the loss, damage or injury occurred. And the tickets were to be so framed as clearly to express on their face this separate responsibility. And Trotter & Bro. were to give to the company a bond, with good security, in the penalty of $20,000, for the faithful performance of the contract on their part.</p> <p>The form of the through ticket issued was as follows:</p> <p> Trotter Stage Line. </p> <p>Issued by Vii’ginia Central Railroad.</p> <p>One first class seat.</p> <p>(Subject to conditions stated below.)</p> <p>Covington to White Sulphur Springs.</p> <p>Hot transferable.</p> <p>On the following conditions and agreement:</p> <p>gS3F“ Each passenger allowed 125 lbs. of baggage on cars, only 75 lbs. on stages. The stage company may charge for any excess, as much for 200 lbs. as for one passenger. Responsibility for safety of person or baggage on each portion of the route confined to the proprietors of that portion alone.</p> <p>Forfeited if detached.</p> <p>J. F. Hetherland, Gen’l ticket agent.</p> <p> Virginia Central Railroad. </p> <p>Issued by Virginia Central Railroad.</p> <p>One first class seat.</p> <p>(Subject to conditions stated above.)</p> <p>Richmond to Covington.</p> <p>Forfeited if detached.</p> <p>J. F. Hetherland, Gen. ticket agent.</p> <p>And on the right margin of each branch of the ticket were the words, Richmond to White Sulphur Springs,</p> <p>After the evidence had been introduced, the defendant . moved the court to instruct the jury as follows :</p> <p>If the jury believe from the evidence, that the contract offered in evidence by the plaintiff, was in fact made with the Virginia Central Railway Company, then the plaintiff is not entitled to recover iu this action. To this instruction, the plaintiff objected ; but the court overruled the objection, and gave it s and the plaintiff excepted. This was the third bill of exceptions.</p> <p>The defendant then moved the'court to give the following instruction : If the jury believe from the evidence that the contract with the railway company was to carry the plaintiff as a passenger, with her baggage, then the plaintiff is not entitled to recover under the pleadings in this action. To which instruction the plaintiff objected ; but the court overruled the objection : and the plaintiff excepted. This was the fourth exception.</p> <p>The jury found a verdict for the' defendant; and the plaintiff' moved the court for a new trial: but the court overruled the motion ; and rendered a judgment upon the verdict; and the plaintiff again excepted. And upon her application a supersedeas was allowed.</p>

This was an action of trespass on the case in the Circuit court of the city of Richmond, brought by Isaac H. Walker against George I. Herring, to recover Herring’s portion of the loss sustained upon the resale of a house and lot which the plaintiff' alleged they had jointly purchased. Hpon the trial of the cause, it vras proved that Messrs.

<p>This was an action of assumpsit in the Corporation ■court of Fredericksburg, brought in August 1870, by Charles E. Bragdon, harbor master of the port of Fredericksburg, against Robert A. Taylor and four others, owners of the steamer Wenonah, to recover the amount ■of fees which he claimed to be due to him from the ■owners of said steamer. The cause came on for trial on the 16th of February 1871, when there was a verdict and judgment for the plaintiff. And thereupon the defendants applied to this court for a supersedeas ; which was allowed. The case is stated in the opinion of the court.</p>

This was an action on the case in the Circuit court of the city of Richmond, brought in October 1859, by Hiram W. Tyler against ¥m. Taylor. - On the first trial of the cause there was a verdict for the plaintiff,, ■ which was set aside by the court.

<p>S makes an assignment of a policy of insurance on his life to B, for the benefit of the wife of S and her children. A few days after, he conveys the same policy to B in trust for his wife and her children ’by him; but if she died without children, the principal to be paid to S’s children by his first wife. The widow of S and her infant son file a bill against B, claiming the insurance money under the assignment. B answers, and says he has acted under the deed of trust, and insists that the children of S by his first wife, are necessary parties. There is a decree on the merits against'B, and he appeals. Held :</p> <p>The children of S by his first wife are necessary parties; and the appellate court will reverse the decree for this error, without passing upon the merits.</p>

This was a suit in equity in the Circuit court of Hanover county, brought in February 1867 by Ariadne P. Bird, a lunatic, by her next friend, Thomas 11. Bird, against Patrick II. Price, the late committee of the plaintiff, to surcharge and falsify the accounts of said committee settled by a commissioner of the County court of ITanover, by which he had been appointed, extending from May 31st, 1860, to March 31st, 1865.

This was an action of debt in the Circuit court of New Kent county, instituted in August 1866, by John L. Walker, personal representative of Eobert C. Harrison, deceased, against Bartholomew D. Christian and John P. Pierce, surviving obligors of John D. Christian and themselves, to recover the amount of a bond for fourteen hundred and twenty dollars and sixty-three cents.

This is the sequel of the ease of Zetelle v. Myers & al., reported in 19 Grattan, 62. When the cause went back *° ^ie Circuit court, the plaintiff, Zetelle, dismissed his action at law, and amended his bill, bringing into the cauge -q1g subject of the agency of Myers and Cridland under the power of attorney, as well as under the deed conveying to them the house and lot.

*This was a suit in equity in the Hustings court of the city of Richmond, by Wm. D. Salmon against John A. Meredith, Mary X,. Meredith and her children, asking the court to fix the amount the plaintiff should pay in discharge of a bond of $5,000, which was one of five given by him in June 1863, for the purchase money of a tract of land which he purchased of S. R. Rondren.

<p>This was a writ of error to a judgment of the Circuit court of Bath county upon an application for a writ of habeas corpus, by "William C. Cleek, complaining that he was illegally confined in the jail of that county. The-facts are fully stated by Judge Moncure in his opinion.</p>

At the November term, 1870, of the Corporation court of Fredericksburg, Simon Hirsh was indicted for keeping a junk shop, and dealing in second-hand articles, junk, rags, old metals and like commodities, without having the license required by law. On the trial there was a verdict against him for a fine of fifty dollars; when he moved the court for a new trial on the ground that the verdict was contrary to the law and the evidence.

At the November term for 1870 of the Circuit court of the city of Richmond, Woody Ruffin was indicted for the murder of Lewis R. Swats. The prisoner was tried by a jury taken from the city of Richmond ; to which he objected; and he insisted that either he should be sent to the county of Rath for trial, where the offence was alleged to have been committed, or that a venire should be issued to that county, to bring a jury.from thence for his trial.

<p>At the July term, 1871, of the Corporation court of the city of Alexandria, Thomas H. Bird was indicted for bigamy; for this, that on the 16th of January'1868, in the city of "Washington, in the District of Columbia, he married Mary Broden; and afterwards, she being still living, on the 1st of March 1871, in the city of Alexandria, he married Henrietta Godwin. At the same term of the court he was tried and found guilty, and the jury fixed the term of his imprisonment in the penitentiary at three years ; and the court sentenced him accordingly.</p> <p>On the trial the prisoner’s counsel asked for several instructions to the jury; which the court refused to give ; and gave other instructions ; and the prisoner excepted. The bill of exceptions sets out the facts proved, and the instructions asked and refused, and those given. From this bill of exceptions it appeared that it was proved by the Rev. P. F. McCarthy, that in the month of January 1868, the prisoner was married by him to Mary Broden, at his residence in the city of Washington, in the District of Columbia. That said McCarthy was a .priest of the Roman Catholic Church, and had been for five years pastor of the church of the Immaculate Conception, in the city of Washington ; and was duly authorized by the canons of his church and the laws of the District of Columbia, to perform the ceremony of marriage ; that the prisoner carried to him the license issued by the clerk of the Supreme court of the District of Columbia, authorizing the marriage of the prisoner to Mary Bro-den ; that said license was issued by the proper officer, and was in the usual form of marriage licenses used in the District of Columbia at that time ; and that under the authority conferred by that license, and in the presence .of Mr. and Mrs. Cooke, two witnesses of full age, he, the said McCarthy, performed the ceremony of the marriage of the prisoner and Mary Broden ; that said marriage was contracted in accordance with the rules and customs of the Catholic church, and the laws of the District of Columbia. The license was on file among the archives of his church, where by the rules of his church it was required to be kept.</p> <p>On cross-examination the witness stated that he first saw Mary Broden a few days before the marriage ; and that she first spoke to him concerning the marriage ; and that he bad a conversation with her in regard to it some days before it took place. The counsel for the prisoner then asked what that conversation was.' To this question the attorney for the Commonwealth objected. The counsel for the prisoner then stated, that the object of the question was, by following it up by other questions, to show that Mary Broden was a common prostitute, and that the marriage between her and the prisoner was the result of a combination and conspiracy between herself and one Cooke and others, by which it was performed against the will of the prisoner, and under duress imposed upon him. But the court excluded the question ; and the prisoner excepted.</p> <p>It was proved that the prisoner and Mary Broden lived together for some years before their marriage ; during which time she passed by the name of Mrs. Bird: and after the marriage they lived together as husband and wife. And it was further proved, that Mary Broden was still living, and that the prisoner was legally married to Henrietta Godwin, in the city of Alexandria, in March 1871: and this last marriage was admitted on the trial.</p> <p>The evidence being closed, the prisoner moved the court to give the following instructions, viz :</p> <p>1st. In order to convict the prisoner, the jury must believe, from the evidence, that two marriages have been contracted by him, according to all the forms of law of the places where they have been celebrated; and if either of them was performed outside the State of Virginia, in another State or country, then the law of such State or country must be shown to the satisfaction of the jury, and that all the requirements of that law have been complied with in such marriage.</p> <p>2d. The jury are judges of the law as applicable to the case, in all matters, except wherein they are instructed by the court as to what the law may be,</p> <p>3d. The law of the country or State where the first marriage is shown to have taken place, must be proved to the satisfaction of the jury, by competent testimony.</p> <p>4th. The mere assertion of a minister of the gospel, that a marriage license was issued according to the law of the country -where such marriage was celebrated, is not sufficient-evidence of what the law may be.</p> <p>The court, because the evidence of the legality of the marriage in the District of Columbia was not objected to when it was introduced ; and because the acts of Congress of a public nature applicable to said District, are matters of judicial cognizance, and are not required to be proved as matters of fact to the jury, and for other reasons, refused to give these instructions ; and instructed the jury as follows :</p> <p>1st. If the jury believe from the evidence, beyond reasonable doubt, that the prisoner was married in the city of Washington, D. C., to Mary Broden, according to the law prevailing in said city at the time of said marriage ; and that afterwards, and during the life of the said Mary Broden, and without having been lawfully divorced from the said Mary Broden, he was, in the city of Alexandria, State of Virginia, married to one Henrietta Godwin, according to the law of the State of Virginia, that then they will find the prisoner guilty.</p> <p>2d. If the jury should not find the facts as stated in the foregoing instruction, they will find the prisoner not guilty.</p> <p>The jury then retired to consult upon their verdict, and after a short time returned into court—the prisoner being present—and enquired of the court whether or not they could, upon the evidence adduced at the trial, find that the first marriage was celebrated according to the ^aws the District of Columbia. The court informed them that they could. Whereupon, they again retired to their room, and in a short time returned into court with their verdict.</p> <p>Upon the application of the prisoner, a writ of error to the judgment was awarded by a judge of this court.</p>

In January 1871, JSTewton Smith, a man of color, was indicted in the Corporation court of Alexandria, for the murder of an infant, the child of Harriet Ferguson. The indictment contained two counts.

<p>1. A point in a cause in which the judges of the court of appeals are equally divided, stands affirmed by virtue of the act, Code, ch. 209, § 7, p. 841, Sess. Acts 1866-67, p. 937, as well where it is a ruling of the court below in the progress of the cause, as where it is the final judgment of the court in the case: and this decision is final and irreversible; and cannot be changed upon a second appeal in the cause.</p> <p>2. § 14, article 6 of the constitution, which provides that Corporation courts shall have similar jurisdiction which may be given by law to the Circuit courts of the State, was not intended to restrict, but to enlarge, the jurisdiction of these courts, and to elevate them to the grade and dignity of Circuit courts. And it was competent, therefore, for the Legislature to give to the Corporation courts jurisdiction to try cases of felony, though the jurisdiction in such cases was taken away from the Circuit courts.</p> <p>3. Under the act of *1866-67, passed April 27, 1867, to revise and amend the criminal procedure, the Corporation court of Biehmond was authorized to empanel a grand jury on the 2d of May 1870.</p> <p>4. § 14, article 6 of the constitution, which directs a Corporation court to be held as often and as many days in each month as may be prescribed, does not require that the whole term shall be held in the same calendar month; and under the act of April 7, 1870, Acts of 1869-70, p. 44, § 10, which fixes the terms of the Corporation court of Biehmond to commence on the first Monday, and continue so long as the business before the court may require, the court may continue its session from the first Monday in one month until the first Monday in the next month. And a grand jury empaneled on the 2d day of May may find an indictment on the 4th of June, the term continuing until that day.</p> <p>5. The court before which a prisoner is arraigned for trial, if qualified jurors not exempt from serving cannot be conveniently found in the county or corporation, may send to another county or corporation for such jurors. And in acting in such case the court must have a large discretion.</p> <p>6. J S, R S and 0 are raider a joint indictment for a conspiracy to defraud fclie estate of H, and each of them is under a separate indictment for forging or uttering the same forged note of They meet together to consult about their defence; L, the conn•sel of R S, G-, the counsel of J S, being with them. On the trial of C, R S is called by the Commonwealth as a witness, and testifies as to a question he put to C and C’s answer to it. C then calls L as a witness, states what R S had said, and asks L what answer 'C made to the question, L says he considered all that passed at that meeting was under the seal of professional confidence, and declines to answer unless released by R S. C moves the court to require L to answer, but the court refuses. Held :</p> <p>1. All that L heard at that meeting in relation to the subject of consultation was privileged.</p> <p>St. R S’ did not, by his giving evidence of what passed at the meeting, release L from his obligation to be silent as to what passed there.</p> <p>3. The privilege extended to all three of the parties, and the consent of all was necessary to authorize L to give the evidence.</p>

At the February term 1871 of the County court of Cumberland, county, the grand jury found an indictment against George W. Price for horse stealing. The indictment contained four counts. The first three counts charged that Price, on the 10th of February 1871, re-. ceived the horse described, which had been lately before-stolen, knowing it to have been feloniously stolen. The fourth charged him with having stolen the horse.

• This is the sequel of the case of Sands v. The Commomoealth, reported 20 Grattan, 800. .When the cause went back, the prisoner was put upon his trial at the May term of the court for 1871, and that trial lasted for twelve days ; and the jury not agreeing upon a verdict, were discharged, and the case was continued. The prisoner was again put upon his trial at the September term of the court.

In April 1867, James P. McCabe and others obtained against Thorpe H. Nance, in the Circuit court of Bedford county, decrees for moneys which he owed as guardian; and in July 1869, they filed their bill in said court, to enforce the'lien of their decrees upon a tract of land in the possession of Nance.

At the August term 1871, of the County court of Rockbridge, George Dock was indicted for the murder of George Ackerly. Being in custody at the time, he was tried at the same term of the court, when the jury found him guilty of murder in the second degree, and fixed the term of his imprisonment in the penitentiary at five years; and the court sentenced him accordingly.