Volume 22 — Grattan's Virginia Reports

In February 1843, Alexander S. Brown and Patrick W. Brown, as executors and devisees of James Brown, deceased, filed their bill in the Superior court of Chancery for the Richmond circuit, in which they say that James Brown died in March 1841, leaving a will, which they exhibit; that the burthen of executing this will will be great: and they proceed to state the grounds of the difficulty at great length.

In February 1843, Alexander S. Brown and Patrick W. Brown, as executors and devisees of James Brown, deceased, filed their bill in the Superior court of Chancery for the Richmond circuit, in which they say that James Brown died in March 1841, leaving a will, which they exhibit; that the burthen of executing this will will be great; and they proceed to state the grounds of the difficulty at great length.

Iii June 1868, Sarah Thorndike, of Connecticut, filed her bill in the Circuit court of the city of Richmond, against Richard F. Reynolds, the executor of Ann Hubbard deceased, and others, to set aside the will and codicil thereto of Mrs. Hubbard, which had been admitted to probate in said court.

This was a bill filed in the Circuit court of the city of Richmond, by De Broths Brothers against the Auditor of Public Accounts, to recover the value of two hundred and fifty hogsheads of tobacco, which had been destroyed by fire on the 10th of March 1868, in the public warehouse in the city of Richmond. The Auditor filed his answer, and the patties agreed the facts; and dispensing with a jury, submitted the case to the court.

<p>1. The president of a bank has no authority, virtute officii, to make any admissions which will release the maker of a note to the bank from his legal responsibility created by the note.</p> <p>2. In a case in which a jury is dispensed with, and the case is submitted for trial to the court, upon a bill of exceptions to the judgment, all the evidence is to be inserted in the bill, arid in the appellate court it will be considered as on a demurrer to the evidence.</p> <p>3. In such a case, when the judgment is for the plaintiff, and the defendant excepts, if it appears that a witness for the defendant, on his examination in chief, makes a statement of a fact in one way, and upon his cross-examination makes it in a materially different way, the first statement is to be rejected, and the last is to be taken as correct.</p>

The case is sufficiently stated by Judge Christian, delivering the opinion of the court. A father, if of ability, is bound to maintain his infant children, even though they have property of their own. Judge Spencer, in Edwards v. Davis, 16 John R. 281, and Robertson, J. 15 Gratt. 513.

By deed bearing date on the 18th of July 1860, Mayo Cabell and’-wife conveyed to Vm. D. Cabell a certain house and lot in the city of Lynchburg, known as the Lynchburg Female Seminary, and also furniture and °ther personal property, in trust—first, to secure certain notes which Mayo Cabell had given in part of the purehase money of the property, and second, for the sole and separate use of Mrs. Margaret B. Brown, wife of Bobert L. Brown, and daughter of Mayo Cabell.

This was an appeal from the judgment of the Corporation court of Norfolk, rendered on the 14th of January 1869, in a cause in which Bebecca B. Tunis was plaintiff, and C. W. Grandy, Jr., and D. I). Simmons were defendants. The judgment was in favor of the defendants, and the plaintiffs having taken two exceptions to decisions of the court, applied to this court for a sugoersedeas to the judgment, which was awarded.

This was an appeal from the decree of the Circuit court of Pittsylvania county, rendered on the 10th day of November 1869, in a cause in which Joseph H. Trotter was plaintiff, and Stephen Holland and his wife were defendants, by which decree the defendants were perpetually enjoined from enforcing a judgment recovered by them against Trotter. The facts as they appear to the court are sufficiently stated in the opinion.

This case was argued at Wytheville at the June term, 1871, and was held for consideration until the March term at Richmond. In November 1865, Beatrice A. Hale, in her own right, and as guardian of her two infant children, instituted a suit in equity, in the Circuit court of Giles county, against James F. Hare, Joseph Hare, Elisha G. Duncan, Daniel P. Hale, Isaac Hale, Isaac H. Day, and James D. Johnston in- his own right and as executor of Edward Hale.

This was a suit iu equity, brought in July 1869, in the Circuit court of Loudoun county, by Thomas E. Carr, against his wife, Ascenith Ann Carr, for a divorce a mensa et thoro, and the recovery of the child of the marriage. The only ground on which the divorce was asked was desertion. This was admitted in the answer, and proved in the cause. The defendant insisted that she went with his consent.

This is the sequel of the eases of Magill v. Manson and Same v. Manson $ al, which are reported in 20 Gratt. 527.

This was an application to this court by Edward Y. Cannon and A. Brummer for a mandamus to Beverly R. Wellford, Jr., judge of the Circuit court of the city of Kichmond, to show cause, if any he could, why the Commonwealth’s writ of mandamus should not be awarded the said Cannon and Brummer to command the judge to allow the said Cannon to be entered as plaintiff, in a cause pendiug in said court, in the name of Bowman & Stroock, partners, plaintiffs against The Georgia Home…

This was a proceeding in unlawful detainer in’the Circuit court of the city of Eichmond, instituted in September 1869, by James Lyons,… Held: first, under an assignment of a lease to himself from a former tenant, dated the 20th of April 1868, which was to commence on the 1st of July 1868, and continue until the 1st of July 1869; and then under a lease from Mrs. Hill, dated the 27th of February 1869, to commence on the 1st of July 1869, and continue until the 1st of July…

On the 20th day of February 1867, P. Campbell Buchanan, sheriff of Smyth county, and, as such, administrator de bonis non of James… Held: that the interest of Frank A. Sanders iru the real estate in the bill mentioned was liable to sale for the satisfaction of the decree in the bill mentioned; and John P. Sheffey was appointed a commissioner to sell all or so much of the right, title and interest of the said Frank A. Sanders as may be necessary in the tracts of land in…

<p>In 1833 "W made his will, and died. By clause 6 he gives to his daughter, D, a designated tract of land, to her and the heirs of her body; but should D “ die without heir, as above mentioned, my wish is that said land shall return to my other heirs, and be sold, and the moneys arising from the sale to be equally divided among all my heirs.” D sells the land, and conveys it with general warranty ; and then dies, without ever having had a child. Held :</p> <p>1. D took under the statute a fee simple estate in the land defeasible upon her dying without a child living at her death.</p> <p>2. The limitation over to testator’s other heirs is valid, and took effect upon the death of D without a child living at her. death.</p> <p>3. Though the deed of D purported to convey the fee, it only conveyed, and did convey, her interest in the land, and the purchaser could not hold an adversary possession thereof before the death of D without leaving a child.</p> <p>i. Upon the death of D without leaving a child, the title vested in the heirs of W, and not in his executor; and they are the proper parties to maintain ejectment for the land.</p> <p>5. The action is against two holding different parts of the land., the judgment may be separate against each for the land in his possession, and joint for the costs.</p> <p>This was a supersedeas to a judgment rendered on the 3d day of June 1870, in the Circuit court of Lee county, in a cause depending in that court, in. which Achíes-"Wynne and others, children and grandchildren of Elkanah Wynne, deceased, were plaintiffs, and Thomas Ely and Andrew M. Ely were defendants. The caséis stated in the opinion of the court.</p>

This was a suit in the Circuit court of Rockbridge county, brought in April 1870, by George A. White, against the Mechanics Building Fund Association of Lexington, Virginia, and others, to enjoin the sale of a tract of land by the trustees in five deeds executed by White to secure certain liabilities to said association, upon the advance to him of five sums of money.

This case was argued in Richmond at the March term, and was decided at Wytheville at the June term. This is an appeal from a decree of the Circuit court of Alexandria county.

The. three cases of Tackett Ford v. Stone, Goode v. Boyd’s ex'ors, and Hill v. Burying, were heard together in Richmond, and they all present a single question&emdash; the constitutionality of the provision of the State constitution, and the act passed to carry it into effect, in relation to homestead exemptions.

This was an action of assumpsit in the Circuit court of Carroll county, brought in October 1866, by Shadrack Collier against Carroll county, to recover the amount contracted to be paid to him for building a jail for the county. The declaration contained five counts, the first three the common counts in assumpsit.

This was a suit in equity in the Circuit court of Carroll county, brought in April 1866, by Creed R. Jennings and five others&emdash;these last infants, by their next friend&emdash;against Jefferson Jennings, Fielding L. Hale ■ and others, to compel the said Jennings and Hale to settle their accounts as guardians of the plaintiffs, and to pay what was found to be in their hands.

In July 1868, Joseph C. Brown instituted a suit in equity in the Circuit court of Tazewell county, against Samuel W. Higginbotham and others, to obtain a conveyance of a tract of one hundred and fifty acres of land, once lying in the county of Tazewell, but at the time of the suit instituted,'in the county of Buchanan.

In April 1856, Philip D. Cox and six othei’s, children of A. H. Cox, two of whom were infants, filed their bill in the Circuit court of… Held: That though the deedsifrom A. H. Cox to Umbarger and from Umbarger to P. D. Cox &c., may have been designed to hinder and delay the creditors of A. H. Cox, and though the latter deed was wholly voluntary as to the grantees therein, yet that as between the parties it must be held that both were valid, and that the deed from Umbarger…

This is the same case reported in 21 Grattan 132. The court being divided on the question as to the true construction of the bonds sued on, a rehearing was allowed on that question. The statement in the report presents the case.

In November 1869, A. C. Moore applied to the judge of the Circuit court of Wythe county, for an injunction to restrain the levy of the execution upon a judgment rendered against him in the County court of that county on the 14th of May 1861, at the suit of M. B. Tate, for $750, with interest from the 2d of February 1861, and costs ; and the injunction was granted.

In March 1868, Henry L. Branson obtained from the judge of the Circuit court of Smyth county, an injunction to restrain James Sanders from enforcing a judgment he had recovered in that court against Branson.

This was a suit in equity in the Circuit court of Bus-sell county, brought in July 1868, by George W. Pucket against Milton Wright, the brother and only heir at law of Harvey Wright, deceased, to enforce the specific performance of a parol contract, which the plaintiff alleged was made by said Harvey Wright and himself, in relation to land.

This was an action of trespass qaare clausum fregit, in the Circuit court of Wythe county, brought in March 3861, by John Catron against Jacob Cline and others. Upon the trial the plaintiff introduced in evideuce a patent from the commonwealth to Michael Walters for eighty-seven acres of land, dated the 8th day of July 1796.

This was an action of ejectment in the Circuit court of Washington county, brought in January 1869, by John S. Preston and Thomas L. Preston, claiming to be trustees of Mrs. Sarah B. Floyd, against Joseph T. Campbell, to recover a tract of thirty-three acres of land, known as the King’s mountain tract. The parties dispensed with a jury, aud submitted the whole matter ot law and fact to the court.

This was a bill for an injunction to a judgment filed in the Circuit court of Patrick county, in December 1868, by Jackson Penn against Madison T. Smith. The judgment was by default in September 1866, and was upon a bond executed on the 5th of January 1863, and payable on the 5th of January 1864. The Circuit court enjoined the judgment, and rendered a decree for a balance which Penn, according to the views of the court, had overpaid upon it.

This was an action of ejectment in the Circuit court ■of Montgomery county, brought in August 1856, by John Pepper against George W. Barnett.

This was a suit in equity in the Circuit court of Pulaski county, brought in September 1867, by Letitia Fugate against Henry Honakers’ executors, devisees aud legatees, to surcharge and falsify the account of the executors’ administration settled in the Court of Probate, and if that was not done, that the devisees and legatees might be required to contribute to make her share as legatee equal to the others.

Ill September 1852, ¥m. King and others, claiming to be heirs of Wm. King the elder, instituted a suit in equity, in the Circuit court of Smyth county, against Andrew F. Buchanan, for partition of a tract of two hundred and seventy acres of land of which the plaintiffs claimed they, as the heirs of Wm. King, were entitled to one undivided moiety.

These Avere appeals, the first by John Hale from a decree of the Circuit court of Montgomery county, in a suit in equity, brought in February 1866, by James Wall against said Hale and John B. Slusher, by which there was a decree against Hale, and the bill was dismissed as to Slusher; and the second was an appeal by Wall from the same decree dismissing the bill as to Slusher. A question was made whether Wall’s appeal’ was in time, but this court did not notice it.

On the 24th of November 1851, on the motion of The Virginia & Tennessee Railroad Company, James Edmondson and four others were appointed by the County ■court of Washington county, commissioners to ascertain a j ust compensation to the owners of land upon the line The commissioners returned a report, which bears date the 11th of December 1851, in relation to the land of David Campbell, amounting to three'lacres, three roo In December 1857, upon the motion of David Campbell,…

On the 16th of February 1869, John H. Hoge sued out of the office of the clerk of the Circuit court of Bland county a subpoena in chancery against James E. Young and Russell Patton, returnable to the first Monday of the next March, and on the 5th day of April he filed his bill in the cause. The bill chai’ges that on the 9th of October 1865, George H. Williams and wife and Wm.

This is a case of prohibition. In October 1870, 'William. L. French applied to the County court of Montgomery for a certificate for obtaining a license to retail ardent spirits at an eating house, then kept by him, in Christiansburg, in said county. The application was resisted in said court by Jesse A. Noel, whose only interest in the matter was, that he was then the keeper of a hotel in said town. The County court granted a certificate accordingly.

At the August term, 1869, of the County court of Pulaski, C. E. Doddridge recovered a judgment in an action of covenant against John T. Cowan for four hundried and ninety dollars, with interest from the date of the judgment. Cowan thereupon applied to the judge of the Circuit court of Pulaski for a supersedeas; which was awarded; but w'hen the case came on to be heard thejudgment was affirmed.

This was an action of debt in tlie Circuit court of Roanoke county, brought in November 1869, by Frederick Johnston against Mary A. James and others, the widow and children of Fleming James, deceased, to recover the amount of a bond for three thousand five hundred and twenty-five dollars and twenty-two cents, bearing date the 14th of May 1863. The defendants appeared and filed the plea of payment, on which issue was joined; and they filed an account of setoff.

Thomas Thurman, of Smyth county, died, leaving a will which was admitted to probate in the Circuit court of the county on the 6th of April 1863. JBy his will he gave his estate, which consisted of houses and lots iu the town of Marion and slaves, to his three sons, William, Thomas and Edward, and the two children of his son John, living in Memphis, Tennessee, they to take one share.

In each of these cases there was a motion to remove the cause to the Circuit court of the United States, held at Harrisonburg.

John W. Wilson and James M. Lilley being jointly entitled to a valuable property in the county of Augusta, known as the “ Greenville Mills,” a suit wasLrought for partition thereof, by the said Wilson against the said Lilly, in the Circuit court of said county.

In June 1867, Robert S. Hook brought two actions of debt in the Circuit court of Highland county, against George and Samuel C. Eagle. The one was on a bond for $420, bearing date the 4th of June 1862, and payable on the 1st of October of the same year.

TMb was an action of debt in the Circuit court of Clarke county, brought in August 1867, by Mary E. Cloud against John B. Larue and John Buck. The suit was abated as to Buck upon the return upon the process, that be was no inhabitant of the county. Larue, who was principal in the bond, pleaded payment.

This was an action of covenant in the Circuit court of Highland county, brought in May 1867, by William X>.

JBy an article of agreement under their hands and seals, bearing date the 5th of September 1836, Alexander T. Barclay and Dr. Hugh Wilson, of the county of Rockbridge, and Wm. Patton and Thomas Mathews, of the county of Greenbrier, entered into a partnership for conducting a mercantile business in the town of Lewisburg, under the name and style of Mathews, Paxton & Co., the business to be managed by Mathews and Paxton, and to continue for five years.

In February 1855, WUliamW. Boyd brought an action of ejectment in the Circuit court of Botetourt, against Jesse E. Markham, to recover a tract of four hundred and twenty-five acres of land, on Jennings creek, in said county. The case was tried in June 1857, when there was a verdict for the plaintiff. Markham thereupon moved the court for a new trial; but the court overruled the motion and rendei’ed a judgment according to the verdict.

This case was decided at Staunton in 1871, and is reported in 21 Gratt. 386. ' It was in the list of cases decided, made out by the president, which was forwarded to the reporter to be reported. After that list was made-out, a motion for a rehearing of the case was submitted to the court; hut it was not acted on for some time, and the case was in print, before the fact that a rehearing was granted was brought to his attention.

In October 1866, Mary A. Seely brought her suit in equity in the Circuit court of Augusta county, against Pacbel Phelps and others purchasers from her, to enjoin the defendants from taking possession of a lot of ground in Staunton, and to redeem what she alleged was intended to he a mortgage upon the lot The bill stated that about the year 1816, Horace Seely, the father of the plaintiff, purchased of A. H. H. Stuart lot Ho. 16 in the town of Staunton, containing one acre;…

In an action for slander in the Circuit court of Botetourt county,' in which Bichard Stinnett was plaintiff and Hiram Hansbrough and Ann his wife, were defendants, the cause came on for trial at the April term 1872 of the court, when the jury found a verdict for the plaintiff’, and assessed his damages at five hundred dollars. The defendants thereupon moved the court to grant them a new trial; but the court overruled the motion.

Au action of debt was brought in the County court of Rockingham county, by S. M. Yost against John H. Wartman, Giles Devier and H. T. Wartman, on a joint and several single bill obligatory, executed by the defendants on the 15th day of July 1868, for the sum of fifteen hundred dollars, with interest from date, payable •oil the first day of January 1869.

This was an action of debt in the Circuit court of Augusta county, brought in August 1866, by Jacob Bowman, Sr., against William S. McChesney, to recover the amount of a bond for four thousand dollars. The cause came on to be tried in November 1868, when the jury found a verdict for the plaintiff for $285.71, with interest from the 28d of October 1863, till paid.

This was a suit in equity instituted in June 1866, in the Circuit court of Rockingham county, and afterwards transferred to the Circuit court of Augusta, by Elizabeth Beery, the widow, and the children and heirs of Abram Beery, deceased, against Andrew B. Irick, M. Harvey Effinger, and others, to recover from Irick and Effinger a part of the purchase money of a tract of land sold in 1857, under the decree of the Circuit court of Rockingham county, in a suit by the widow and…

This was a suit in equity in the Circuit court of Augusta county, brought iu April 1866, by Samuel Bushong and others, legatees of Mary C. Bushong, against John Newton, as her executor, for au account of the estate of his testatrix, and the payment of their legacies. Mary C. Bushong died iu the year 1860, having made her will, which was duly admitted to probate, and John Newton qualified as her executor.

This was an action of debt in the Circuit court of Augusta county, brought by M. G. Harman against William H. Peyton and T. P. Peyton. There was a verdict and judgment in favor of T. P. Peyton and against William H. Peyton ; and he thereupon applied to this court for a supersedeas to the judgment; which was allowed.

In October 1852, James B. Campbell, late of the county of Highland, departed this life, leaving a widow, Aleinda 0. Held: ever after, under said assignment, until divided in accordance with the direction of said James B. among his brothers, without possession ever having been surrendered by respondent, or any claim to or demand of them by said James B. in his lifetime.” The said Benjamin B. also said in his answer, among other things, that said James…

This was an action of assumpsit in the County court of Augusta, brought in July 1870, by Thomas Calbreath against The Virginia Porcelain and Earthenware Company.

This case was decided by the court at the November term 1871, and the opinion was delivered by Christian, J. affirming the decree of the court below. Upon the petition of the appellant, a rehearing was allowed ; and it was argued at Staunton during the present year, by Brockenbrough and Tucker, for the appellant, and Cochran and Baldwin, for the appellees. The opinion contains a sufficient statement of the case.

This was an action of assumpsit in the Circuit court of Frederick county, brought in 1865, by Edgar E. Purcell against John Allemong & Son, partners, to recover the amount of a check drawn by the defendants upon the Farmers Bank of Virginia at Winchester for $911.87, payable to Purcell or order, and dated February 11th, 1862.

This was a suit in equity in the Circuit court of Warren county, by James W. Kendrick and James R. Richards against Abraham Forney, as an absent defendant, to attach the land of Forney lying in that county, for the payment of a bond for §501.57, dated March 10th, 1862, payable, with interest, at nine months from its date, executed by said Forney as principal, and James R. Richards as his surety. ' Forney answered the bill, and insisted that the bond was to be paid in…

This is a bill in tfye Circuit court of Frederick county, filed in April 1869, by George M. Gordon and J. Chap. Biely, against Lawrence Sangston, secretary of the Baltimore Agricultural Aid Society, and J ames H. Williams and John J. Williams, trustees, to enjoin the sale of a steam saw mill conveyed by them, with other property, in trust to secure the payment of two bonds given by the plaintiffs to Sangston, secretary, &c., for the price of said mill.

In September 1867, the widow and heirs of William Ambrouse filed their bill in the Circuit court of Frederick county, against George W. Keller, to enforce the specific execution of a contract entered into between the said Keller and Ambrouse for the sale by Keller to Ambrouse of a tract of land lying in the county of Frederick.

On the 5th of February 1862, Richard and John F. Whitfield • sold at auction three lots in the city of Richmond, fronting on Franklin street seventy-eight feet, when Solomon Myers became the purchaser at one hundred and forty-three dollars per front foot. The terms of sale were one-fourth cash, and the balance at one, two and three years.

In April 1872, Lawrence Murphy was tried and convicted of a felony in the Hustings court of the city of Eichmond, and was sentenced to be imprisoned in the penitentiary for three years.

This was a suit iu equity brought in February 1866, iu the Circuit court of Prince William county, and afterwards removed to the Circuit court of Alexandria, by Isaac Newton, formerly of Pennsylvania, but then of Washington city, against John Nagle, Jr., to rescind a contract for the sale by Newton to Nagle, of a tract of land in the county of Prince William ; or if the contract could not be rescinded, then for the specific execution.

In April 1866, Bobert J. Edelin and six others.filed their bill in the Circuit court of Alexandria county against the Mechanics Building Association of Alexandria, William Arnold and others, for the purpose of winding up the association, compelling the respective parties to pay their dues, and having the fund distributed among the unredeemed shareholders.

These cases were heard together in this court. They involve a single, and the same question; and that is whether the act of March 7th, 1872, which provides “that hereafter it shall not be lawful for the officers charged with the collection of taxes or other demands of the State, due now or that shall hereafter become due, to receive in payment thereof any thing else than gold or silver coin, United States treasury notes, or notes of the national banks of the United States,”…

This is an appeal from a decree of the Circuit court of Cumberland county, in a suit brought by the appellant, William D. Talley, against John Robinson, for the specific execution of a contract for the sale of a tract of land lying in said county, sold by Robinson to Talley by an agreement in writing, under the hand and seal of said Robinson, bearing date the 2d day of September 1864. The vendor is described in the agreement as a freeman of color, of the county of Amelia.

In January 1872, John M. Canada was indicted in the County court of Halifax for the feloniously and maliciously cutting, stabbing and striking J. H. High, with ¡intent to maim, disfigure, disable and kill him. The jury found him not guilty of the malicious cutting and^wounding, but guilty of an assault and battery, and assessed his fine at five hundred dollars.

In August 1872, the grand jury of the Corporation court of Lynchburg indicted Mike Thomas for stealing a pair of pants of the value of $2.25. And they further stated in the indictment that Mike Thomas was on the 27th of January 1872, tried and convicted for a like offence in the Mayor’s court for the city of Lynchburg, and in said court was sentenced to four months confinement in the city jail; setting out the offence.

This was a presentment against John C. Neal and four;' others, in the Corporation court of Danville, for that they did unlawfully play and bet at a game or table commonly called “bagatelle,” at the restaurant and eating house of Jerry Bichólas, a public place in said town.

At the August term 1872, of the County'court of Bedford comity, Harold P. Bead was indicted for feloniously and with malice aforethought shooting George S. Merriman, with intent to maim, disfigure, disable and kill him.