Volume 23 — Virginia Reports

<p>The case is stated in the opinion of the court.</p>

<p>This was a writ of error from the decision of the Judge of the Circuit court' of Prince Edward county, in a case of habeas corpus. The facts are stated by Judge Christian, in his opinion.</p>

<p>This was a suit hi equity, in the Circuit Court of the city of Bichmond, brought in July 1868, by Jonas P. Levy and wife and Eliza Hendricks, against the Commonwealth of Virginia, and others, heirs and' devisees of Hriah P. Levy, deceased. It appears that Hriah P. Levy, who had lived for years in the city of New York, died in that city in the year 1862. Pie left a will, which bore date on the 13th of May 1858, and which was duly admitted to probate in the surrogate’s court of the city of Hew-York, as a will of real and personal estate, and Asabel S. Levy and David S. Codrington qualified as executors of the will. He left a widow, but no children; and his heirs and next of kin were his brothers and sisters, and the children of such of them as had died.</p> <p>The testator owned Monticello and also another farm called Washington farm, both in the county of Albemarle ; the latter of which, with the slaves upon it, he devised to Ashel S. Levy. He bequeathed various legacies, none of them of large amount, to his relatives and friends; and then made a residuary devise and bequest as follows:</p> <p>“After paying the above legacies and bequests, or investing for the same, and subject to my wife’s dower and use of furniture, I give, devise and bequeath my farm and estate at Monticello, in Virginia, formerly belonging to President Thomas Jefferson, with all the rest and residue of my estate, real and personal, or mixed, not hereby disposed of, wherever or however situated, to the People of the Hnited States, or such persons as Congress shall appoint to receive it, and especially all my real estate in the city of New York, in trust, for the sole'aiid only purpose of establishing and maintaining at' said farm of Monticello, Virginia, an agricultural school, for the purpose of educating, as practical farmers, children of the warrant officers of the Hnited States navy, whose fathers are dead. Said children are to be educated in a plain way, in the ordinary elementary branches, to fit them for agricultural life, and to be supported entirely by this • fund, from the age of twelve to sixteen, and each of them to be brought up to do all the usual work to be done on a farm. The said farm to be so cultivated, by said boys and their instructors, as to raise all they may require to feed themselves and the school-master and one other teacher, and one superintendent of said farm. I also give and bequeath, for the purpose of giving such fuel and fencing for said Monticello farm school, two hundred acres of wood land, of my Washington farm, called ‘The Banks Farm,’ in Virginia; the said two hundred acres to be taken off from said farm hereby devised to my nephew Ashel, and to be designated by said Ashel.</p> <p>“ In establishing said farm school, I especially require that no professorships be established in said school, or professors be employed. My intention in establishing this school is charity and usefulness, and not for the purpose of pomp. In proportion to the smallness in number of teachers, so will industry prevail. The institution must be kept within the revenue derived from this endowment ; and under no circumstances can any part of the real or personal estate hereby devised be disposed of; but the rent and income of all said estate, real and personal, is to be held forever inviolate, for the purpose of sustaining this institution. The estate and lands in New York can be leased to great advantage for that purpose.</p> <p>“ Should the Congress of the United States refuse to accept of this bequest, or refuse to take the necessary steps to carry out this intention, I then devise and bequeath all the property hereby devised to the people of the State of Virginia, instead of the people of the United States; provided they, by acts of their Legislature, accept it and carry it out as herein directed. • And ■ should the people of Virginia, by the neglect of their Legislature, decline to accept this bequest, I then devise and bequeath all of my said property to the Portuguese Hebrew congregation of the city of New York, whose synagogue is in Crosby street, New York, the old Portuguese Hebrew congregation, whose synagogue is in Cherry street, Philadelphia, and the Portuguese congregation hi Bichmond, Virginia: Provided they procure the necessary legislation to entitle them to hold said estate, and to establish an agricultural school at said Monticello, for the children of said societies, who are between the ages of twelve and sixteen years, and whose fathers are dead; and also similar of any other denomination, Hebrew or Christian. In order to enable said Hebrew congregations to hold said estate and carry on said farm school, a charter will probably have to be obtained upon the application of said congregations to the Legislatures of Virginia and New York.</p> <p>“ Should the fund arising from said estate be more than sufficient to support and educate the children of warrant officers of the Hnited States navy, the directors of said school are then next to select the children of sergeant majors of the Hnited States army, as the beneficiaries; and if a surplus is still remaining, they are then to select from children of seamen of the Hnited States navy, whose fathers are dead.</p> <p>" Item. I direct my executors hereinafter named, or such of them as shall qualify, to invest the funds arising . from said estate in some safe-paying stock, as fast as they accumulate, and to hold the whole of the property and estate hereby devised and bequeathed for said school, and in their hands, until the proper steps have been taken by Congress or the Legislature of Virginia, or the said Hebrew benevolent congregations, to receive the same and discharge said executors.”</p> <p>The testator appointed eight executors of his will; but only the two before mentioned qualified as such. The executors who qualified, brought a suit in equity, in New York, to have the will construed; and in that case the foregoing provision was declared to be void. This suit was then brought, to have the Montieello estate sold and divided among the heirs of Levy; and the State of Virginia not having been a party to the suit in New Yoi’k, she was made a defendant in this case; but did not appear or answer.</p> <p>On the 30th of Hovember, 1868, there was a decree for the sale of the land. And afterwards the Attorney General, Thomas E. Bowden, without moving the court to rehear the decree, applied to this court for an apjieal on behalf of the Commonwealth of Virginia; which was allowed. The other facts are stated in the opinion of the court.</p>

This was a suit in equity in the Circuit court of Lynch-burg, brought in 1854 by Anselm Clarkson and others, claiming as legatees in remainder of slaves, under the will of John Clarkson, who died in the county of Franklin in the year 1817, against John S. Hale, Giles W. B. Hale’s adm’r and others, who had purchased 'the slaves under proceedings against the life tenant during her life.

<p>This was a writ of error to the judgment of the corporation court of Lynchburg, prohibiting George IT. Burch, mayor of the city of Lynchburg, from proceeding to investigate charges against Wm. W. Hardwicke, the chief of police of the city. Ilardwicke applied to the judge of the corporation court of Lynchburg for a writ of prohibition, to restrain the mayor from investigating charges made against Ilardwicke, as chief of police, by several citizens, on the ground that the mayor had no jurisdiction to make the investigation, but that by the charter of the city the power was vested in police commissioners. The Judge issued the Writ; and, upon the hearing of the cause, made the prohibition absolute. And Burch, thereupon, applied to this court for a writ of error; which was awarded. The case is stated in the opinion of the court,</p>

Hector Davis, a citizen of Richmond, died in February 1863. He left a will which bore date on the 21st of March 1859, and which was duly admitted to probate in the Circuit court of the city of Riclimond. By the first clause of his will’the testator gave to his nieces Jennie, Sallie andBettie Davis, the sum of fifteen thousand dollars, to be equally divided between them.

<p>. In March 1869 Thomas L. Gregory and Jane D. Winston filed their hill in the Circuit court of the county of Hanover, in which they state that Philip B. Winston, of the county of Hanover, the husband of the female plaintiff, died in October 1853, leaving a will, by which he gave to her, during her widowhood, the tract of land whereon he lived, containing by estimation nine hundred and eighty-two acres; and directed that at her death or marriage this land should be sold by his executors, and the proceeds of the sale should be equally divided among all of his children and their descendants per stirpes. That there were ten of these children, surviving them, ■ of whom Sallie P. and Richard M. were the children of the testktor by the female plaintiff, and the others were by a former marriage. That in addition to the land, the testator left to her a large personal property in fee, and a considerable amount for life or widowhood. That after the death of her husband she cultivated the land, and was very successful, and realized large profits. That . her son Richard M. Winston, who had no other property, except the slaves acquired by his marriage, except that acquired under the will of his father, lived with her, and acted as her general agent in the management of her business; and whilst so acting he purchased with the monies and credit of the female plaintiff, the interest of remaindermen in the land devised to her as aforesaid; and they set out the amount paid to each of eight them, amounting in the whole to $12,350 75. And she, with the said Richard M. Winston, as her surety, executed her bond for $1,600 to Sallie P. Winston, for her interest in said land, which is still outstanding and unpaid. That the whole of said sum of $12,350 75, with the exception of about $1,800, which was the money of the said Richard M. Winston, was paid with the moneys of the female plaintiff'.</p> <p>They further say, that Richard M. Winston died in February, 1862, having made a will dated April 22d, 1861, which had been admitted to probate, and Bicker-ton L. W inston qualified thereon as administrator with the will annexed. That Richard M. Winston directed by his will, that if he should die, leaving no child, the executor should sell the estate loaned to his mother Jane D. Winston, known as Poplar Spring, of which he had become the purchaser from the various legatees, to his sister Sallie P. Winston, for $15,000, should she be willing to take it at that price; the annual proceeds of which sum to go to his wife Rosalie S. Winston, during her life or widowhood; the said principal sum of $15,000 to go to his mother, Jane D. Winston, if living, and her heirs forever; if not living, then to his sister Sallie P. Winston, or some of his nephews or nieces; but in this case, Rosalie S. Winston to have the power of dosigna- . ting to which of them it shall go.</p> <p>' They further say, that until after the death of Richard M. Winston, your oratrix thought the interests of the said remaindermen in the said land had been conveyed to her; that she never intended that the deeds should have been executed in any other way; that it was always her purpose to provide equally for her two children; and that the provision of the will of her son Richard M. Winston was a surprise- to her; that several times . during the lifetime of Richard M. Winston, she requested him to bring the deeds from the said remaindermen to her; but he told her they were in the clerk’s office, and had better remain there. They were permitted to remain in the office, where they were destroyed; and consequently she never saw them until after the death of Richard M. Winston.</p> <p>They further say, that on the--day of March 1868, some time after the death of Richard M. Winston, Bickerton L. Winston went to the residence of your oratrix, taking with him instruments of writing, prepared for the said Sallie P. Winston to execute under the will of Richard M. Winston. That your -oratrix was, at the time, without counsel, and ignorant of her rights in the premises. That Bickerton L-. Winston, as administrator as aforesaid, on the said -- day of March 1868, received from your oratrix one thousand dollars in Confederate currency, in part payment of the said sum of |15,000, for the interest of Richard M. Winston in the said land. That the said Sallie P. Winston, with your oratrix as her surety, on the said - day of March 1863, executed a bond dated January 1st, 1863, payable to said Bickerton L., as administrator as aforesaid, in a penalty of twenty-eight thousand dollars, conditioned for the payment of 14,000 dollars, within six months after the death or marriage of the said Rosalie S. Winston, and for the payment of interest upon the last mentioned sum semi-annually, until the death or marriage of the said Rosalie S. Winston. That at the same time and place, other instruments in writing, were brought there by the said Bickerton L. Winston, which are believed to have been a deed from him, as administrator as aforesaid, to the said Sallie P. Winston, conveying the interest of the said Richard M. Winston, in the said land, in conformity with his will; and a deed of trust upon the said land, securing the payment of said bond, executed by the said Sallie P. Winston.</p> <p>They further say, that the said bond was executed by-Sallie P. Winston during the course of a treaty of marriage between her and the plaintiff, Thomas L. Gregory; and that at the time of its execution he was the intended husband of the said Sallie P. Winston, and the day had been appointed for the solemnization of their marriage, which took place on the 22d of April 1863. That Rosalie S. Winston was residing with Mrs. Winston, and she and Bickerton L. Winston knew at the time the bond was executed, that said Thomas L. Gregory was then the intended husband of the said Sallie P. Winston, and that they expected to be married in a short time thereafter. That no notice was given to said plaintiff of the obligation entered into by the said Sallie P. Winston to the said Bickerton L. Winston, as adm’r as aforesaid; and that said plaintiff, Thomas L. Gregory, never- had any notice or knowledge thereof, until some time after he had married the said Sallie P. Winston.</p> <p>They further say, that the said bond was executed at a time when Confederate currency was the currency in circulation, and was executed in reference to that currency. That Bickerton L. Winston, as adm’r, &c., was proceeding under the statute against Gregory and .his wife and Jane D. Winston, to enforce payment of interest on the bond. And they pray for an injunction to restrain him from proceeding to recover said interest; upon the grounds: 1st. That Richard M. Winston having purchased the interest of the remaindermen with the money of Jane P. Winston, and taken the deeds to himselfj there was a resulting trust in her favor, to the extent that he had used her money in the purchase; and that there is, to that extent, a failure of the consi- . deration of said hond. 2d. Because the bond having been executed by Sallie P. Winston, during the treaty ° , . of marriage with the plaintiff, Thomas L. Gregory, without notice to him, her then intended husband, it was fraud upon his marital rights, and relieved him from all liability as the husband of his said wife, upon the bond. And 3d. Because the said bond was executed in the month of March 1863, (notwithstanding it bears date the first of January, 1863,) with reference to Confederate currency as a standard of value, which was at that time worth twenty cents to the dollar; and if obligatory upon the plaintiff's at all, should be scaled to the gold standard of value. They make Bickerton L. Winston, as adm’r with the will annexed of Richard M. Winston, Rosalie S. Winston and Sallie P. Gregory, the wife of the plaintiff Thomas H. Gregory, defendants to the bill, and call upon them to answer. The injunction was granted.</p> <p>Bickerton L. Winston answered the bill. He denies that Richard M. Winston, acting as the agent of Jane D. Winston, and with her money, purchased the interest of the remaindermen in the tract of land, for her; for both Richard M. Winston and Jane D. Winston repeatedly told respondent that the money of hers, used by Richard M. Winston in the purchase of said interests, was given by her to him as an advancement to him. And Jane D. Winston also stated to respondent, during the same conversation, that it was her purpose to make her daughter Sallie P. Winston advancements out of the profits of her estate, equal to what she had given to Richard M. Winston. He says further, that Richard M. Winston owned one-tenth in the remainder of the land; he bought another interest from his former guardian, William O. Winston, and paid him out of money due Mm by Ms guardian.; be bought two interests from respondent, one Ms own and the other which lie sold as of John R. Winston, and gave respondent an order or orders on Edmund T. Winston for the purchase moneJ’ which orders had not been paid. And he insists she cannot now claim the said land, having been privy and'a party to all the transactions connected with the sale of the land to Sallie P. Winston, and the execution of the deed to her by respondent; and having elected to take under the will of Richard M. Winston. That Richard M. Winston made his will some time before his death, and left it with Jane D. Winston when he went into service in the Confederate army; that she knew all its provisions long before his death; was privy to all the transactions between respondent and Sallie P. Winston relating to the purchase of said land by said Sallie P. Winston. That she paid the interest in full regularly upon said land, up to January 1866, and has continued to make j>ayments towards the interest on said land up to August 1868. And notwithstanding her full knowledge of all these facts, he never heard until the filing of the plaintiffs’ bill in this case, that she ever pretended that the land was purchased by Richard M. Winston, with her money, for her use or benefit.</p> <p>Respondent further says, he knows Richard M. Winston believed that the money he got from his mother to aid him in the purchase of said interests in remainder, was a gift to him, and that the deeds for the same were to have been made to him; and the deed from Sallie P. Winston, for her interest in the land, was probably made in the house of the said Jane D. Winston, as they resided together, and she gave her bond with Richard M. Winston as security, for the purchase money; and she must have known that the deed was made by the said. Sallie P. to Richard M. Winston. Respondeat denies that said bond and deeds in the bill’mentioned, were-carried by him to the residence of Jane P. Winston, and executed on the — day of March 1863. They were carried there and executed on the 16th of January, 1863; and so far from having carried there to be executed by the parties, in ignorance of their contents and- legal effect, without opportunity for consideration or for. advice of counsel, the facts of the case are as follows: In the latter part of the year 1862, at the instance and request of saM Jane L. Winston and Sallie P. Winston, respondent visited their residence, when, the whole matter was discussed; and the said Jane I). and Sallie P. Winston determined and insisted upon taking R. M. Winston’s interest in the land upon the terms prescribed in his will. Accordingly the deed and bond were prepared by James Lyons, the mutual friend and counsel of all the parties; and so prepared, were carried by respondent to the residence of the said Jane L. and Sallie P. Winston, on the 16th of January 1868, and after being read and carefully examined, were executed in the presence of Robert O. Loswell, a fi'iend of the family and clerk of the county court of Hanover, and Luden.B. Price, the friend, adviser and business agent of Jane L. Winston.</p> <p>Respondent further says, that at the time of the execution of said papers, he knew nothing about any marriage engagement, nor contemplated engagement, between said Thomas L. Gregory and the said Sallie P. Winston; nor does he believe that any such at that time existed; and if he did, the contract then consummated was made and fully agreed upon some time in the year 1862, certainly prior to January 1863’; at which time respondent believes no such engagement existed. But he insists that the execution of said bond and deed of trust would have been no fraud upon the marital rights of the said Thomas L. Gregory, even if executed, the day be- ° J J fore the marriage; because the said Sallie P. Winston received a full, valuable consideration for executing the same. He denies that the said bond was executed with re^erence t° Confederate money, or was to be paid in Confederate money. The prise was fixed by Richard M. Winston, in his will, which was executed in April 1861;. at which time Confederate money did not exist. And moreover, when the bond was executed, respondent expressly and positively declared that he would not receive Confederate money, except to a small amount necessary at that time for purposes of administration of the estate.</p> <p>Rosalie S. Winston also answered the bill. Her answer is in most respects substantially the same as that of Bickerton L. Winston. She admits that Richard M. Winston 'lived with Mrs. Winston, and acted as her general agent in the management of her business affairs; but she denies emphatically, that he, acting as her agent and with her money, purchased the interest of the remaindermen in the land, for her use and benefit. After stating what money of his own was applied to the said purchase, she says: the residue of the money used in the purchase of said land was obtained by Richard M. Winston, as respondent believes, from said Jane D. Winston, as an advancement. Said Jane D. Winston has frequently stated in the jiresence of respondent, that she ' had given said money to Richard M. Winston as an advancement; and that it was her purpose.to advance to her daughter Sallie P.Winston an amount equal to what she had so advanced to Richard M. Winston. At that time she could well afford to make said advancements, as the yearly profits of her estate were very considerable. After Richard M. Winston had purchased the interests of-the remaindermen in said laud, Jane D. Winston, to carrv out this understanding between herself, ° Richard M. Winston and Sallie P. Winston, m regard to the advancements to he made to the said Richard M. Winston and Sallie P. Winston, as aforesaid, paid to the said Sallie P. Winston a yearly interest on an mated principle, to equalize the two.' ■</p> <p>Respondent further says, that at the time of the execution of the bond and deeds, herein before referred to, she might have heard of a marriage engagement between complainant, Thomas L. Gregory and Sallie P. Winston, but cannot say whether she had or not. But she insists that if such an engagement existed at the time of the execution of the said bond and deed of trust it would not be a fraud upon his marital rights. • She denies that said bond was executed with reference to Confederate money, or was to be paid in that money.</p> <p>Jane D. Winston. Mr. and Mrs. Gregory, Rosalie S. Winston, and Bickerton L. Winston, gave their depositions in the case, which were excepted to; and there were also a number of other persons who were examined as witnesses. The testimony of these witnesses was of course conflicting; but the court, not considering that testimony, but basing its opinion upon the written evidence in the cause, it is unnecessary to give that evidence, except indeed a portion of that of Mrs. Rosalie S. Winston, which is made the basis of Judge Anderson’s dissenting opinion.</p> <p>The statements of the bill, as to the will of Philip B. Winston, and the number of his children, and also as to the provisions of the will of Richard M. Winston, are correct; as are also the descriptions of the bond and the deed from Bickerton L. Winston, as adm’r with the will annexed of Richard M. Winston, to Sallie P. Winston, and her deed of trust, to secure the bond; but one of the disputed facts in the cause is, as to the day when the bond and deeds were executed. They are dated on the'first of January 1863; hut it is certain they ,were not executed on that day; and the only question was, whether they were executed on the 16th of January or in March 1863.'</p> <p>There was no question either, that Richard M. Winston paid for the interest of seven of the remaindermen with money derived from his mother’s estate. One of the interests was paid for out of his own estate; and his mother and himself executed their bond to Sallie P. Winston, for her interest, which has not been paid. The deeds for these interests were made to Richard M. Winston. The disputed fact was as to the terms on which Mrs. Winston advanced the money to Richard M. Winston. Mrs. Winston insisted that the understanding between herself and Richard M. Winston was, that the deeds from the remaindermen wTere to he made to her; and that if enough could be made from her estate to enable her to advance to Sallie P. Winston a sum equal to that advanced to Richard M. Winston, then he was to have the land at her death; hut that if she was not able to make an equal provision for her daughter, then he was not to he entitled to the whole of the land. On this question Rosalie S. Winston said, in answer to the following interrogatories by defendants’ counsel:</p> <p>Question 22. Row please state any discussions or conversations you may have heard between Jane D. Winston, Sallie P. Winston and R. M. Winston, with reference to the purchase of the said interests ?</p> <p>Answer. I know that the subject was fully discussed as each several interest was bought out.</p> <p>Question 23. At or before the time of the first purchase, was there any understanding or agreement between Jane D. Winston, Sallie P. Winston and R. M. Winston, as to how they should be paid for, and to whom they should belong?—Objected to .as leading.</p> <p>Answer. There was such agreement and full understanding of all the parties concerned, that they should belong to him.</p> <p>Question 24. What was the agreement as to how they were to be paid for, and if Mrs. Jane D. Winston was to pay any portion: was it also a part of the agreement that compensation should be made to Sallie P. Winston; and if so, how was she to be compensated ?— Objected to as leading.</p> <p>Answer. The first payments he made with his own money; the payments afterwards were made with the money loaned him by Mrs. Jane I). Winston. It was also a part of the arrangement that compensation should be made to Mrs. Sallie P. Gregory, by paying her an interest on an estimated principal beginning at the same time—at the same age, I mean, as such advancements were made to her brother, until an equal amount of principal was given to both.</p> <p>Question 25. Who was to make that compensation to Sallie P. Winston?</p> <p>Answer. My husband, I suppose. The estate was bound for this payment until she was made equal.</p> <p>After several questions and answers in relation to other matter’s, the following questions and answers were put and given:</p> <p>Question 37. You state in answer to the 24th chief question, that “ the first payment he (meaning E. M. Winston) made with his own money; the payments afterwards wore made with the money loaned him by Mrs. Jane D. Winston.” State whether or not the money thus obtained from Mrs. Jane D. Winston was understood to be an advancement to the said E. M. Winston, or merely loaned by her to Mm, to be repaid by Mm ?— Objected to as leading.</p> <p>Answer. As advancements, certainly.</p> <p>Question 38. You further state, in answer to the 24th question: “ It was also a part of the arrangement that compensation should be made to Mrs. Sallie P. Gregory, by paying her an interest on an estimated principal;” and in answer to the 25th question, which is in the. words following, to wit: Who was to make that compensation to Sallie P. Winston ? You say, “My husband, I suppose. The estate was bound for this pay-' ment until she was made equal.” Did you understand, and so intend it to be understood, that E. M. Winston was to pay the said compensation out of his own means, or that the payment was to be made out of the profits of the estate. Please state fully what you meant by said answer?</p> <p>The plaintiffs excepted to this question, because the answer referred to is so plain as to admit of but one construction; and therefore requires no explanation; and upon the further ground, that the question is a leading one.</p> <p>Answer. I answered this question without thinking on the subject. It is an absurdity to suppose that Mr. E. M. Winston was bound for the said payments, as his only means were a small salary paid him by his mother, Mrs. Jane D. Winston, for his services rendered on the farm. Mrs. Jane D. Winston received all the profits of the estate, and there is no question or doubt that she meant herself to make advancements to her daughter, as she had done to her son.</p> <p>The bond and deeds referred to in this case were executed at the house of Mrs. Jane D. Winston. It appears that James Lyons, Esq., who had been counsel and friend of her husband in his life time, was employed by Bickerton L. Winston to prepare these papers; and. he . _r. having prepared them, sent them to Bickerton L. W mston, who took them to the house of Mrs. Winston, companied by Dr. L. B. Price, who was the friend of Mrs. Winston, and sometimes her adviser. Mr. O. Doswell, the cleric of the County court of Hanover, was also there. The papers were read to Mrs. Jane D. Winston and Sallie P. Winston, in the presence of these gentlemen; and were executed by the parties; Mrs. Winston and her daughter Sallie P. Winston asking no explanations, and receiving none. On this bond, Mrs. Winston paid the interest regularly up to January 1866; and she made partial payments up to August 1868.</p> <p>On the question as to the time of the execution of these papers, all the parties and witnesses who speak on the subject, concur in the fact that they were executed on the same day on which the personal property of Richard M. Winston, deceased, was appraised; this personal property being at the house of Mrs. Winston. Several witnesses say that this was in March, and some , of them refer to circumstances as confirming them in their recollection. But Mr. Lyons’ note, sending the papers to Bickerton L. Winston,, is dated January 12th; a receipt given by the appraisers of the property, to Bickerton L. Winston, for their fees for appraising it, is dated the 16th of January, and two of them say they were jrnid on the day the appraisement was made; and there are two receipts of R. O. Doswell, the clerk of the court and also a notary, in one of which, under date of the 16th of January 1863, he charges B. L. Winston, adm’r of R. M. Winston, for taking the acknowledgment of said B. L. Winston, to the deed to Miss S. P. Winston, and also the deed of trust from her to B. L. Winston; and under the same date he charges B. L. Winston, adm’r, &c., of R. M. Winston, to tax on the deed of trust from Sallie P. Winston. The engagement between Thomas L. Gregory ancl Miss Sallie P. Winston occurred on the of January, and their marriage took place on the 22d of April 186-3. His attentions to her appear to have become known in December 1862.</p> <p>The cause came on to be heard on the 12th day of March 1870, when the court held that the title to the several interests in remainder in the bill and proceedings mentioned, except the interest of Sallie P. Winston, as to which the court reserved its decision, was in Bichard M. Winston, at the date of his will, and at his death ;- and that there was no trust or equity therein, resulting in favor of Jane D. Winston. That Bickerton L. Winston, as adm’r with the will annexed of Bichard M. Winston, deceased, had full authority to sell and convey said interest, on the 16th'of January 1863, and that his deed executed on that day, bearing date the first of January 1863, vested a complete title to the said .interest in Sallie P. Winston, now Sallie P. Gregory; and that the .bond and deed of trust were fairly executed, and for valuable consideration; and were executed without any intention to defraud her intended husband, Thomas L. Gregory; and are therefore legal, valid and binding contracts, and not in fraud of the marital rights of. said Gregory. And reserving the question whether the bond should not be credited as of its date, with the amount of the bond given by B. M. Winston and Jane D. Winston, for Mrs. Gregory’s interest in remainder; and having a statement made, showing that there would be due of interest on the bond, up to January 1869, if Mrs. Gregory’s interest was credited on the bond, the sum of $893, the court dissolved the injunction as to that sum.</p> <p>Prom this decree Thomas L. Gregory and Jane D. Winston applied to this court for an appeal; which was allowed.</p>

<p>1. In a creditor’s suit by Y. against F., in his own right and as administrator of A., Y. claims to be a creditor by judgment against F., as adm’r of A.; and F., in his answer, admits he owes his intestate’s estate for land purchased in intestate’s life time, $1,100. On the filing of this answer, the court may make a decree, that F. shall pay said §1,100 into court, or to a receiver ; and this, though F. is one of the next of kin of A.</p> <p>2. For the rules governing in such eases, see the opinion of Mon-cure, P.</p>

<p>This case was argued in Staunton at the August term 1872, of the court, and was decided at the present term of the court in Bichmond.</p> <p>It was a suit in equity in the Circuit court of Bock-bridge county, brought by the next of kin of ¥m. Luckess, jr., who were infants, to set aside an award made in three actions of debt pending in said court, brought by the executors of ¥m. Luckess, sr., against ü Q-. Moore. ¥m. Luckess, jr., was the residuary legatee of ¥m. Luckess, sr.; and it appeared in proof as well as by the answer of one of the executors, that the estate of ¥m. Luckess, sr., would pay all his debts and special legacies,and leave the amount involved in said suits to pass to the residuary legatee, and that the condition of the estate of ¥m. Luckess, jr., was such as- that his next of kin would be entitled to the fund. The bill alleged that the executors of "Wm. Luckess, sr., declined to oppose the confirmation of the award. The bill admitting the integrity of the arbitrators, stated several objections to the award, among which, one was that the arbitrators intending to decide the case according to law, had mistaken it, and so had erred.</p> <p>¥m. Luckess, sr., was a wealthy old bachelor, without any known kin. He lived for fourteen years in the house of H. G-. Moore, who kept a house of private entertainment in the county of Rockbridge, and he died there in September 1859. He had a special written contract with Moore, which was renewed every year, specifying how much he was to pay and for what; and receipts for the amount were regularly given by Moore.</p> <p>"Whilst so living in Moore’s house "Wm. Luckess, sr., lent to Moore money at several times, for which he took his bonds and became the assignee of another; the whole amount being $5,740 28; and on these bonds the interest had been settled up to a short time before his death. In June 1857 he made his will, by which he gave many legacies; to each of Moore’s seven children a legacy amounting together to $14,000.</p> <p>In 1860 the executors of Wm. Luckess, sr., brought three actions of debt upon the bonds aforesaid, against Moore; and he pleaded payment, and filed an account by way of set-off'; the charges, with two exceptions of small amount, being for extra services rendered to Luckess and his slaves, from 1845 to-1859, and amounting altogether, with interest to 1859, to $10,818 60.</p> <p>There seems to have been a trial of the causes in 1861, when the jury failed to agree, and were discharged and nothing further was done until August 1866, when the executors of Luckess and Moore entered into an agreement under seal, to refer them to the arbitrament of John Letcher andR. O. McCluer, Esqrs., with power in them to choose an umpire; and it was agreed that the submission should be entered of record in said actions at law.</p> <p>Before proceeding to hear the case the abitrators selected Daniel Brown as the umpire, and they all sat together; and in May 1867 they made then* award. In this award they commence hy saying, 1st: ~We have ascertained that Moore is indebted to' the executors in the sum of $5,740 28, with interest thereon from May 21st 1859; 2d, we-have ascertained that the said Moore is entitled to the following credits, viz: a credit of $1,225, with interest thereon from the first of January 1855; and they thus set out the different credits allowed him, extending from January 1855 down to the death of Luckess in 1859; allowing him all his charges between these dates except one which is reduced. They do not, however, make any calculation of interest, or statement showing how much the credits amount to; hut they in fact amounted to upwards of $500 more than the amount of the bonds. The arbitrators were ' examined as witnesses; and upon their testimony, it appeared that they had before them the papers in the common law causes, including the pleadings, the bonds, the account of Moore, and several depositions filed in said causes; all of which were returned to the court with them award, though not referred to in it. And they say that they intended to exclude all the items of Moore’s account barred by the statute of limitations.</p> <p>The cause came on to be heard on the 17th of June 1870, when the court held that no sufficient cause had been shown for setting aside the award; but being satisfied there was such error in the application of the statute of limitations, by the arbitrators and umpire, to the account of setoff filed by the defendant Moore, in the suits at law, as required correction, decreed that the award be amended, so as to exclude the credits allowed to Moore anterior to five years from his entering his plea in the cases at law. And a statement having been made by a commissioner, showing that the credits, principal and interest, on the 1st of May 1859, amounted to $4,016 89, leaving a balance of $1,723 39 due to the</p> <p>Luckess estate, upon the bonds sued on, it was ordered that a judgment be entered in the cases at law upon said • award for the said sum of $1,723 39, with interest from the 1st of May 1859, and their costs. And thereupon Moore applied to a Judge of this court for an appeal; which was allowed.</p>

<p>In 1870 H. J. Smith, administrator of Alexander Brown, deceased, obtained a judgment upon a scire facias in the Circuit court of Lynchburg, against James Garland, for the sum of $3,451, with interest from the 30th of September 1859, and costs, subject to several credits for payments made from April 1860 down to March .1864. In April 1871 an execution was issued on this judgment, which went into the hands of George •H. Burch, the sergeant of the city, and was levied on the library of Garland. Garland, thereupon, gave Burch notice in writing that he was required to sell the property upon a credit of twelve months; and the sergeant having advertised the sale upon that credit, Smith applied to the judge of the Circuit court of Lynchburg for a mandamus to the sergeant to sell for cash. Upon the rule to show cause why a mandamus should not issue, the sergeant returned that he was about to sell the property for cash, when he received a notice from Garland to sell upon a credit of twelve months, under the law passed to prevent the sacrifice of personal property at forced sales; and as the debt was one embraced by that act, he had advertised the sale accordingly, and should so sell it, unless forbid by the court. To this return of the sergeant, Smith demurred; and the court sustained the demurrer, and directed a peremptory mandamus to issue. And thereupon Garland, who had been admitted a defendant, applied to this court for a writ of error, which was awarded.</p>

This is an appeal from a decree of the corporation court for the city of Lynchburg, made in a suit in which Robert H. Glass was plaintiff, and Davis and others, owners of Rriend’s warehouse, in said city, were defendants.

<p>This was a suit in equity in the Circuit court of Fauquier county, afterwards transferred to Culpeper county, instituted in February 1866 by Celia Edmonds against Albert C. Byrne and Evelina C. Byrne, his wife, and others, to correct a decree of the Court of Appeals, relating to the will of Celia Shearman, deceased. The case is fully stated in the opinion of Judge Christian. There was a decree in favor of the plaintiff; and Byrne and wife applied to the District court of appeals at Fredericksburg for an appeal; which was allowed; and that court affirming the decree, they obtained an appeal to this court.</p>

<p>By deed bearing date the 7th day of April 1808, and duly admitted to record in the clerk’s office of the County court of Prince William county, Beverly E. Wagoner, of said county, and Margaret S. bis wife, conveyed to John Gibson of Orange county, four tracts of land in Prince William and Fauquier counties, and eight slaves by name, two of them men, three women, and the three children of one of them, and all bis other personal property, upon trust, that Gibson shall in the first place, proceed to sell so much, of the said estate, real and personal, as will be sufficient to discharge all just debts due from the saidB. R. Wagoner, and that are due and recoverable from the estate of Benjamin Harrison, deceased; and shall allow unto him, during his natural life, a genteel support out of the proceeds of said estate; and the residue of the proceeds of said estate shall, during the life of the said Margaret S. Wagoner, be paid unto her yearly, and every year, for her use; and upon the death of the said Margaret S. Wagoner, the said Gibson, his heirs, &c., shall convey to the child or children she may leave, iu fee simple, all the before mentioned estate, interest and property of every description, which may be living at the time of the death of the said Margaret S. Wagoner, by even or equal portions; or in case of the death of any child or children of said Margaret S. Wagoner, during her life, such child or children leaving issue, then on the death of the said Margaret S., to convey to such grand-child or grand-children the portion of said estate to which the father or mother of such grand-child or grand-children would have been entitled to under this instrument, had he or she survived the said Margaret S. Wagoner; reserving to the said B. R. Wagoner, in case of his surviving the said Margaret S., during his life, the support before mentioned.</p> <p>, Beverly R.Wagoner died in 1809. Gibson undertook the trust, and seems to have sold before 1816 three of the tracts of land and one of the male slaves. In April 1816 the County court of Prince William made an order by which J. Lawson, commissioner of the court, was directed to settle and report the account of John Gibson, as trustee under the deed from B. R. Wagoner; and in May of the same year the commissioner returned his report. In this report Gibson is charged with the price of the slave and the price of the three tracts of land; though the deeds for the land are dated after „ ’ r . . the return o± the commissioner s report, and express only the consideration of five shillings. Upon this settlement, Gibson is found to be in advance to the trust fund on the 31st of December 1815 $267 39-100. The commissioner also reports a debt due to John Gibson, jr., of $1,080.70, as of the 3d of April 1816. John Gibson, jr., was a lawyer, and the son of John Gibson, and he was employed by John Gibson, at a salary of $100 a year, to attend to the business in the courts, in which there were suits pending against Harrison’s estate, and he was also to attend to the management and sale of the trust property; and his debt consisted of charges for services rendered to B. B. Wagoner before the creation of the trust, a debt due by judgment against said Wagoner, and for his salary of $100 a year for seven years, with interest. The commissioner states in his report that he submitted it and the statement of the account to Mrs. Wagoner and her son-in-law, Mr. Bussell Harrison, as the present representatives of B. B. Wagoner, deceased, for their inspection and examination. Ho particular exception was by them taken thereto, except as relates to the salary of $100 per an num allowed by the trustee to John Gibson, jr.; to which allowance they decidedly object.</p> <p>' At the May term of the court an order was made re-. citing that the account was returned to court and ordered to lay over; and at the June term, there was an entry, that the report, with the exceptions filed thereto, was taken up and argued by counsel; on consideration whereof the court doth overrule the exceptions, and cou firm the report of the commissioner; and the report and account are ordered to be recorded.</p> <p>Mrs.-Wagoner had but one child, and she was married to Bussell B. Harrison; and by deed bearing date the 16tli day of February 1817, John Gibson, Mrs. Wagoner and Harrison and wife, for the consideration of $1,400 conveyed to John Gibson, jr., the remaining tract of land conveyed by the deed, which was called the Mansion house tract, and contained two hundred and eighty acres.</p> <p>Both Mrs. Harrison and her husband died in the life time of her mother; the first dying in May 1823, and Mr. Harrison in Hovember 1835; and they left four children, who were alive at the death of their grandmother, Mrs. Wagoner, in September 1840.</p> <p>The only acts, so far as appears in this case, done by John Gibson, the trustee, after the settlement of his account in 1816, was that in December 1816 he enjoined the removal of the slaves out of the State by Mrs.Wagoner, and Harrison and wife. In this bill he charged that Russell Harrison had sold one of the slaves to a person who had removed her out of the State; and lie said that Mrs. Wagoner was still young enough to have many other children. It was after this bill was filed that the deed last above mentioned was executed. And ■in 1830 Gibson sold eight of the slaves, one of them an old man purchased by Mrs. Wagoner for forty dollars. The slaves sold for $1,189 60-100, and of the proceeds $771 65 was applied to pay the amount of a decree recovered against Gibson as trustee; and of the balance all but $98 45 was paid to or for Mrs. Wagoner. Gibson died in 1833, without having settled any further account of his actings as trustee.</p> <p>At the death of Mrs. Wagoner her grand-son, Wm. B. Harrison, was of the age of twenty-one years; one of the daughters was married in 1836, and another in 1838, both of them minors when they were married, but over twenty-one years in 1840; the youngest was married in September 1841, then a minor. After the C^eatk ^rs- Wagoner these parties, or some of them, seem to have instituted actions at law against the persons in possession, to recover the land or some of it, . sola by Gibson; and pending these suits, probably m 1846, John Gibson, jr., in a conversation with "William p. Purcell, the husband of the oldest grand-daughter of Mrs. "Wagoner, said to him—“I understand you intend to sue me or my father’s estate, respecting these trust matters; if so, I wish you would do it at once, while I am alive and can defend it.” He was dead when the suits were brought.</p> <p>In April 1854 "William B. Harrison, then living in the State of Ohio, William P. Purcell and wife and Bernard G. Hays and wife, then living in Washington city, filed them hill in the Circuit court of Prince William county, against the administratrix of. John Gibson, jr., who had been one of the administrators of John Gibson, and the heirs of John Gibson, the elder, the administrator of J. C. Gibson, another administrator of John Gibson, the elder, and Thomas G Murray and Julia his wife, the said Julia being the youngest grand-daughter of Mrs. Wagoner, in which they set out the deed of trust and the settlement made by the commissioner in 1816, and the deeds made by John Gibson. They insist that the commissioner was not authorized, by the order of the County court of Prince William, to settle or state the claim of John Gibson, jr.; and the statement was therefore unauthorized and not evidence; and that the claim itself was utterly unjust and unfounded; that John Gibson was allowed by the commissioner 5 per cent, on his receipts; and to allow this charge would make the expense of administering the trust near twenty-five per cent, of the amount received; and they plead the statute of limitations to all but the four last items of the account. They refer to the three first deeds as stating only a nominal consideration, and made after the settlement of the account in 1816. They say that the price of only three of the tracts and one. slave is charged in that settlement;' and neither Gibson, in his life time, nor his administrators, having made any other settlement, the plaintiffs are left uninformed as to what became of the fourth tract or its proceeds of sale, and the other slaves. They therefore pray for a discovery from the defendants, and a proper settlement of the accounts of the trustee.</p> <p>By an amended bill, they say that the plaintiff, ¥m. B. Harrison, resided in the State of Ohio in 1840, and had continued to reside in that state; and that at the death of Mrs. Wagoner the female plaintiffs were femes covert and continued to be so.</p> <p>The defendants demurred to the bill; but the demurrer was overruled as to the administratrix of John Gibson,jr., and the administrator of J. O. Gibson, another administrator of John Gibson, the elder. And thereupon these parties answered separately. They both rely upon the lapse of time which had occurred since the death of John Gibson and Mrs. Wagoner, and the death of all the parties who could give any information on the subject; and they say that they know nothing themselves, and that the papers and books of their intestates do not enable them to give any information, except that the books of John Gibson, jr., contain an account of the' sale of eight negroes, purporting to be the negroes conveyed in the deed of trust, a copy of which his administratrix files with her answer. This is the ‘ sale herein before referred to.</p> <p>The plaintiffs took testimony to prove the value of the land sold by Gibson. Some of these witnesses ■ speak of the value at the time of giving their evidence and there is nothing very definite as to the value at an ear^er Peia0<T The cause having been removed to Me Circuit court of Culpeper county, came ou to be heard on the 17th day of June 1859, when the cotirt macle a decree dismissing the bill, with costs. And thereupon the plaintiffs applied to this court for an ap- . , . , „ 1 peal;, which was allowed.</p>

<p>The case is fully stated by Judge Bouldin, in his opinion.</p>

This was an action of debt in the Circuit court of Powhatan county, brought in September 1869, by James V. Sledd’s ex’or against Thomas J. Turpin. The action was founded on a bond, as follows: $>2,400. On demand, for value received, I promise to pay to James V. Sledd or his assigns, in gold or silver, or the equivalent thereof, the sum of twenty-four hundred dollars; and for the payment of which I bind myself, my heirs, ex’ors, &c., firmly by these presents.

Charles C. Smoot a citizen of Alexandria died in July 1867, leaving a will which was executed in 1858. For years before the date of his will and until his death he was engaged in a mercantile business, with his two sons.Charles C. Smoot, jr., and John B. Smoot as partners.

<p>Ill April 1851, and for some time prior thereto, John Southgate, Tazewell Taylor, and four other persons, were in possession of and claiming to he owners thereof, a lot of ground lying between the south line of what is now Nevison street, and Elizabeth river at Norfolk. This property included two wharfs and a small dock lying between them. These wharves lay within what is called the portwarden line, a line run by authority of an act of Assembly along the channel of Elizabeth river, upon which wharves were forbid to encroach. The bottom of the dock was below the tide. These wharves and dock had. been built and had been held as private property, from a time before the memory of any men now living.</p> <p>By deed bearing date the 1st day of April 1851, John Southgate, Tazewell Taylor and the other owners in consideration of the sum of $12,000, conveyed to Josiah Wills, one of these wharves with the ground from Nevi-son street; with appurtenances to the same belonging: the line separating it on the East from the other property owned by the grantors being described as follows : Beginning on South side of the street proposed to be opened and designated as Nevison street, at a point which extended Southerly, strikes the logging on the West side of the small dock owned by the parties of the first part; thence running Southerly along the West side of said dock and to the channel of Elizabeth river; thence Westerly along said channel &c. And by a subsequent clause of the deed the said parties of the first part “covenant to allow said Josiah Wills to have the common use, with themselves, or their tenants, of the dock herein first mentioned, for the purpose of landing goods on his wharf from vessels or boats which may enter therein, as long as the said dock and adjoining premises are owned by the said parties of the first part, or until they .may choose to fill up the said dock. The said Wills in consideration thereof, hereby undertaking to clean out, from time to time, the said dock at his .own expense.”</p> <p>Wills went into possession of his wharf, and the dock was used by vessels discharging them freight and passengers on his wharf; and this continued to be done until the commencement of the late war. Wills died in 1855, and the wharf passed through several successive owners, until it came into the possession of Thomas A. Hardy, who had purchased one, and leased the other, moiety thereof, and so held it, when the bill in this case was filed.</p> <p>By deed bearing date the 23d day of March 1854, Southgate, Taylor and the other .owners in consideration of the sum of $18,000 conveyed the.other wharf and the dock to Ball, Santos and Mellen, calling for the line described in their deed to Wills. This property was afterwards sold under a deed of trust given by subsequent purchasers to secure a part of the purchase money, and was purchased by John M. Southgate and Tazewell Taylor, to whom it was conveyed, and subsequently the same was leased to A. A. McCullough.</p> <p>In 1869 McCullough commenced to drive piles along the west line of the dock, to prevent its use by Hardy; and thereupon Hardy applied by bill to the judge of the Corporation court of Norfolk for an -injunction to restrain him; which was granted. In his original bill he claimed that under the conveyance to Wills, the owner his wharf was entitled to the use of the dock as an easement appurtenant thereto, and which had been previously so used; and also that the covenant in the deed was under the statute to be construed as if it was made by or for the assigns of the respective parties; and therefore he -was entitled to the use of -the dock under the covenant. In an amended and supplemental bill he set up the further ground, that the dock extended below lowwater mark, and was a part of Elizabeth river, a navigable stream; and therefore he was entitled to the free use of it.</p> <p>McCullough, Taylor and the other owners answered, denying that the owners of the Wills wharves had any right to the use of the dock, either on the ground of easement or under the covenant; but on the contrary any such right was expressly negatived by the covenant, which must be taken as expressing the intention of the parties to the contract. As to the dock extending below law-water mark, that was true, but it was within the portwarden line, and had been held as private property for a period extending beyond the memory of any men living.</p> <p>The cause came onto be heard on the 31st of January 1870, when the court dissolved the injunction and dismissed the bill. Whereupon Hardy applied to this court for an appeal; which wa3 allowed.</p>

By deed bearing date the 15th. of February 1860, John Graeme, of the city of Richmond, conveyed to Gustavus A. Myers and John Graeme, jr., a certain lot of land in the city of Richmond, situated on the south side of Main street, on which there was a brick house, and bounded by the same boundaries as when Patrick Cullen purchased the same from James Talley, on the 23d of January 1835 ; iii trust to secure to Patrick Cullen the payment of the sum of $22,200, for which the said…

This was a suit in equity, in the Circuit court of Loudoun county, brought in February 1868, by Edward L. Bower and his wife and others against Francis McCormick and Hannah Taylor, to recover a tract of land in that county. The case is fully stated by Judge Christian, in his opinion.

<p>In April 1866 John Leonard brought his action of ejectment in the Circuit court of Alexandria county, against Daniel Carson, to recover a lot of ground in the city of Alexandria; and "Willis Henderson made himself a defendant and pleaded “not guilty;” on which plea issue was made up.</p> <p>Hpon the trial of the cause it appeared both the plaintiff' and the defendant Henderson claimed under a deed executed in October 1795, by which George Coryell and wife conveyed to Leonard Doucher the lot of ground in question, reserving a perpetual ground rent of three pounds twelve shillings current money of Virginia-, with right of distress, and of forfeiture and re-entry for the failure to pay the rent for thirty days after it fell due, and no effects upon the premises out of which the rent could be made.. Leonard had become the owner, of the lot, and Henderson of the ground rent. ,</p> <p>In 1855 Henderson brought his action of ejectment in the Circuit court of Alexandria county against Thomas Valentine to recover the said lot. Valentine appeared and pleaded not guilty; but in May 1856, when the cause came on to be tried he withdrew his plea, and the record says, it appearing by affidavit that the rent claimed in the declaration was due, and that no sufficient distress was upon the premis's, the court rendered a judgment that the plaintiff recover possession of the lot, with costs. Iu July 1856, an execution was issued upon this judgment, directing the sheriff to put Henderson in possession of the lot; and the return of the sheriff shows that this was done on the 28th of July 1856.</p> <p>It was a fact agreed in the case that at the time Henderson instituted his action against Valentine, Leonard was under the disability of infancy; and that he instituted this action within five years after the removal of such disability.</p> <p>After the pvidence had been introduced -Henderson moved the court to instruct the jury as follows: If the jury believe from the evidence, that the d< fendant- had a right of re-entry on the premises, in the plaintiff s declaration mentioned and described, by reason of any rent issuing thereout being in arrear; or by reason of any covenant or condition recovered a judgment for said premises, and had execution therefor, and that the plaintiff or .other person for him, did not pay the rent in arrear with interests and costs, nor file a bill in equity for relief against such forfeiture, within twelve calendar months after such execution executed, then the said'plaintiff is barred of all right, in law or equity, to be restored to the- said premises, and can not recover in this action.</p> <p>The court refused to give the instruction, and the plaintiff excepted. The jury thereupon found a verdict for the plaintiff, and that he was entitled to the premises in fee simple; and the court rendei'ed a judgment accordingly.</p> <p>Upon the petition of Henderson he was allowed a supersedeas to tide District court of Appeals, at Fredericksburg ; where the judgment of the Circuit court was reversed; and a new trial of the cause was directed. And then Leonard applied to this court for a supersedeas ; which was allowed.</p>

In March 1860 Archibald J. 'W’ightman and Joseph Wightman, executors of Joseph Morrison, deceased, filed their bill in the Circuit court of Loudoun county against Jos.

<p>The ease is sufficiently stated • in the opinion of the court.</p>

In December 1866 Ellen A. Claiborne filed lier bill in tlie Circuit court of Pittsylvania county, in which she set out, that in 1858 Leonard Claiborne, her father, died; she being then an infant of very tender years: That David H. Clark was appointed her guardian at the August term 1858 of the County court of Pittsylvania, and continued to act as such until his death: That lie left a will, by which he appointed John W. Wilson his executor: That on the 21st of April 1862…

At the November term 1863 of the County court of Pittsylvania, on the motion of Sally A., Emily B. and Pincy Whitehead, by Wm.

On the 6th of February 1866 Sdlomon A. Myers, of the city of Richmond, entered into a contract under seal with Samuel Strong, of Washington city, whereby Strong undertook to build for Myers, on a designated lot in Richmond, a house containing two tenements complete in all its parts, of the best materials, according to a specified plan, for the sum of fifty thousand dollars, said house to be fully completed and finished and the key to be given by said Strong to Myers, on or…

<p>' 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 Petersburg, brought in 1868 by Bobert H. Jones, jr., and Mary Eppes his wife, against Benjamin B. Vaughan, late guardian of Bosa J. Boisseau, and others, the object of which was to have secured a large sum of money derived from the sale of the real estate of the ward, which went into the hands of said Vaughan, and was paid over by him to Stephen W. Britton, who married the said Bosa J. Boisseau.

<p>This was an action of assumpsit in the Circuit court of the City of Richmond, instituted in November 1871, by Ould & Carrington, lawyers, against the City of Richmond. The object of the suit was to test the constitutionality of the ordinance of the City Council, imposing a tax on lawyers. Issue was made up on'the plea of “ non assumpsit,” and the whole matter of law and fact was submitted to the decision of the court.</p> <p>The power of taxation vested by the charter in the council of the city is stated by Judge Anderson in his opinion, and need not be repeated. By the ordinance imposing taxes, persons following various employments in the city were classified, and a specified tax was imposed on each class. Among these were lawyers who were divided into six classes. The eleventh section of the ordinance provides—“that the committee on finance shall place each person and firm employed in the trade or business referred to in sections three, four, five, seven and eight, in the class to which the committee shall be of opinion such person or firm properly belongs, looking to all the circumstances of the case.” And it was directed that when the committee had completed their classification, they should give notice of the fact by publication in two of the papers of the city, and that the committee would meet at a specified time to hear any application for a correction of the classification; and in the meantime the list was left in the auditor’s office, open for the examination of all persons interested in the matter.</p> <p>In 1871 the committee of finance placed the plaintiffs, as lawyers, in the first class, and classified all lawyers practising in the city in the respective classes mentioned in s. 5 of the ordinance: that being the section in reference to lawyers. In doing so the committee had no assessment of the plaintiffs’ income from .their profession before them; nor did the committee ascertain, or attempt to ascertain, their incomes in any way; but formed its .own estimate, without evidence, of the reputation and standing of the lawyers practising law in the city of Bichmond, including the plaintiffs, and their supposed capacity to make profits in that way, relatively with each other; and classified them accordingly. The committee made no report to the council of their action in the premises; nor did the council ever revise or consider it in any way; but an opportunity was offered to all the lawyers to show, each for himself, that they had been taxed too high in the manner provided in the eleventh section of the ordinance; and some of them availed themselves of that opportunity; and among them the plaintiffs, whose tax was reduced from one hundred and ■ fifty to one hundred dollars; but in doing so the comniittee acted without evidence of the relative incomes of the lawyers embraced in the classification. The plaintiffs having paid the tax under protest, after the officer had levied upon their property, brought this action to recover it. back.</p> <p>'Upon the hearing of the case there was a judgment for the plaintiffs; and the city of Richmond ha ing taken an exception to the opinion and judgment of the court, applied to'this court for a supersedeas; which was awarded.</p>

This case was argued in Richmond at the March term of the court, and was decided at Wytheville.

<p>This case was argued in Richmond, and decided at the June term 1873, at "Wytheville.</p> <p>This was a suit in equity in the Circuit court of Mat-x J thews county, brought in August 1869, by Lanier, Brofhers & Co., against Wm. H. Hudgins and others, to enforce satisfaction of the judgments which they had recovered against Hudgins, and which were docketed in May and June 1867. The bill set out the recovery and docketing of the judgments, and stated, that after the judgments were docketed Hudgins made a deed by which he conveyed to Thomas H. Hunley, certain real estate in said county, for the benefit of his creditors. That by the provisions of the deed the trustee was required to make sale of the property after the 1st of April 1869, when called on by a majority of the creditors of said Hudgins, and apply the proceeds to the payment of his debts; and if said proceeds were not sufficient to pay all, then they were to be applied ratably. But it was provided that if any prior liens had been acquired on the real estate of Hudgins, they were to be first paid. That the wife of Hudgins united in this deed; and at the same time Hudgins executed another deed, by which he conveyed to Hunley other real estate, in trust, for the separate use of his wife.</p> <p>They say further, that Hudgins is insolvent; that they have liens on his real estate by virtue of their judgments ; that they do not intend to waive their said liens; but they are willing to have their debts paid out of the property conveyed for the benefit of the creditors of Hudgins, and have no disposition, unless it becomes necessary to prevent them from suffering loss, to interfere with the said deeds of trust. They are informed that there are other parties who have acquired liens on the real estate of Hudgins, of even or prior date to theirs. They state who these parties are. And making Hudgins, Hunley, and the lien creditors, parties defendants, they pray that the property conveyed by Hudgins, for the benefit of his creditors, may be sold, and the proceeds applied to the payment of the debts secured thereby, first paying the liens on the real estate of Hudgins. That the liens may be ascertained; and all other proper accounts taken; and for general relief.</p> <p>. In October 1869, the bill having been taken for confessed as to all the defendants, the court made a decree directing one of the commissioners of the court to take an account of all liens upon the real estate of Hudgins, which had been acquired before the execution of the deed, in the bill mentioned, to Hunley, and the amount of such liens, and the persons entitled thereto, and their priorities.</p> <p>The commissioner proceeded to state the accounts upon notice to Hudgins, Hunley, and the lien creditors, no creditor being named in the deed of trust; and from his report it appears that the debts of the creditors by judgment docketed before the execution of the deeds to Hunley, with interest to October 1st 1870, amounted to $4,211 44, and that the plaintiff’s debt amounted to $8,072 46. To this report there was no exception.</p> <p>After this report had been returned Hudgins answered the bill. After stating the execution of the deeds, and that the deed for the benefit of Mrs. Hudgins was made in pursuance of an express agreement that it was to be done in consideration of her joining in the other deed, he denies that the plaintiffs have a right to sue him ; because by the terms of the deed he was to retain possession until a majority of his creditors should direct a sale : and this had not been done. He insists plaintiffs shall be put to their election, whether they will claim under said deed or under the lien of their judgments. That if they' proceed under their judgments every cloud upon the title to the property should be removed before . a sale is directed. And he proceeds to set out the difficulties as to each parcel of land. The only parcel, how-J * ever, which is involved m this case, is one of six and one-kalf’ acres, which had been sold under the decree of the county court of Matthews, and of which he had become the purchaser, and had paid the purchase money, but had not received a conveyance for it; and the commissioner had since died.</p> <p>The cause came on to heard on the 11th of October 1870, when the court, not then deciding on the liability of the property conveyed for the benefit of Mrs. Hudgins, to satisfy the plaintiff’3 debt, decreed that unless Vm. H. Hudgins, or some one for him, should, within four months from the rising of the court, pay to the plaintiffs the sum of $3,072.46, with interest on $2,016, 64 cents, part thereof, from the 1st day of October 1870, then John P. Donovan and M. B.. Seawell, who were appointed commissioners for the purpose, should proceed to sell the land conveyed in the deed for the benefit of creditors, at public auction, to the highest bidder. The terms of the sale were, cash for the expenses, and a credit for the balance of one', two and three years, with interest from the day of sale; taking bonds and security, and retaining the title.</p> <p>And, with the consent of the defendant, Vm. H. Hudgins, the commissioners were authorized to sell the said land in lots to suit purchasers. And with like consent the commissioners were authorized to sell any of said parcels of land at private sale, and on the credit before directed to be given.</p> <p>The commissioners proceeded to sell a part of the property embraced in the deed. This was the tract called Crickett Hill, where Hudgins had carried on business as a merchant, and the small tract of six and one-half acres lying on the opposite side of the road. This was sold as a whole, and was purchased by James W. Marchant, ¥m. hi. Trader and Josephus Trader; and the price to be paid for it was $5,000.</p> <p>Hudgins excepted to the report, on the ground, first: that by the decree the land was to be sold at public auction, unless, by consent of the defendant Hudgins, a private sale should be made. That Hudgins consented to a private sale to ¥m. A. Richardson, who offered a price for the two lots sold, sufficient to pay the expenses of sale, and all the debts reported; and Hudgins insisted upon this offer being accepted:</p> <p>2d. Because it is not reported by the commissioners that they sold the land at public auction, as directed by the decree,, nor at private sale, by and with the consent of the defendant ‘Win. H. Hudgins. The fact is, it was sold at private sale, without his consent and against his protest.</p> <p>3d. Because the commissioners have not reported whether said lands sold for three-fourths of their assessed price at the last assessment thereof, for the purposes of taxation.</p> <p>It appears from the statements of the commissioners and the affidavits filed, that previous to the day of sale Hudgins had negotiated with ¥m. A. Richardson, for the sale to him of the parcel of ground called Cricket Hill, on which was a storehouse, and a lot of six and one-half acres, lying across the road from the former, the same sold by the commissioners, at the price of $4,500; and on the day of sale the proposition of Richardson was stated to the commissioners, and they expressed themselves disposed, to accept it, or so much as would pay the debts, costs and expenses. But whilst one of the commissioners was making a calculation to ascertain whether this sum would pay all the debts reported and ■ the expenses of sale, another party proposed to give for the two lots $4,600, and wished the property put up together. Hudgins insisted they should sell to Richardson, at the price he had offered; but the commissioners explained that they could not sell for $4,500, when $4,600 was offered, and they were about to have the property put up at auction. Before this was done, however, upon the suggestion of Mr. Donovan, one of the commissioners, to Richardson, that he would accept any thing over $4,600, Richardson offered $4,650. Mr. Donovan went to Mr. Seawell, the other commissioner, and proposed to close with this offer, at once; but he declined doing so, until Marchant, who had made the other offer, was consulted, as he might be inclined to give more. They both'then went to Marchant, who, when the matter was explained to him, offered $5,000. This they communicated to Richardson, and asked him if he would give more; when he shook his head and said, “ I am out of the ring.” The commissioners then informed Marchant & Trader that they could have the property at their offer; and whilst the bonds to be executed by the purchasers were in preparation by Mr. Donovan, Hudgius objected to the sale, and required and demanded that the property should be put up at public auction in separate lots; the Cricket Hill lot first, and then the other. He was told by Mr. Seawell that the property was sold. After Seawell had left the ground, some dissatisfaction was expressed by the company present to Mr. Donovan, at what had been done; when, he being unable to satisfy them, announced that if any one was willing to give more than $5,000 for the properties, he would not confirm the sale; when Richardson offered $5,100-; and Mar chant declined to give mpre. Donovan thereupon, declined to sign a receipt for the cash payment by Marchant.</p> <p>Some days after the sale, Mr. Donovan saw Bichardson, and told him that if he wished to contend for the property, he had better make a tender of the cash payment and the bonds; that he would not involve himself further in the controversy between the contending parties; and should therefore refuse to accept the tender, but would report the facts to the court; but no such tender was made. And Mr. Donovan says he saw him a second and third time, and told him in his last interview, that unless he, by a certain day named, made a tender of the bonds and cash, he, Donovan, should close the matter, so far as he was concerned, by uniting with Mr. Seawell in his receipt to Marchant and Trader; and he was understood as declining to make the tender, and saying he would have nothing more to do with it. Donovan then told him he would go and sign the receipt to Marchant; to which Bichardson made no objection; and, in a few minutes afterwards, Donovan signed the receipt.</p> <p>"Wfn. H. Hudgins presented a petition to the judge, in which, after stating that Bichardson had offered $5,100 for the property, and that the petitioner had protested against the sale to Marchant & Trader, he insists that the said sale should not be confirmed, for the reasons stated in his exceptions. And he offers and binds himself, and will execute bond, with satisfactory security, that the said offer of $5,100, made for said land, will be complied with in five days after the rising of the court.</p> <p>■ The cause came on to be heard on the 26th of October 1871, when the court overruled the exceptions of the defendant, Hudgins, to the report, and confirmed it. And it being suggested that Hudgins was in possession of the Pr0Pei’ty so^ by t-*le commissioners, it was ordered that he, within ten days from the service upon him of a copy of this decree, should surrender and deliver possession thereof to the purchasers, Marchaut & Trader.</p> <p>And it was further decreed, that the sheriff of Matthews should proceed to sell the other property conveyed' in the deed of Hudgins to Hunley, for the benefit of his creditors; and that a commissioner of the court should take an account of the debts due by Hudgins and secured by said deed, showing the amount and character thereof, and to whom such debts were due. And the death of Hunley was suggested.</p> <p>■ From this decree Hudgins obtained an appeal to this court.</p>

<p>This case was argued in Richmond, at the March term of the court, and was decided at the June term, at Wytheville.</p> <p>In October 1872 Wm. E. Rollo, assignee in bankruptcy of the Merchants Insurance Company of Chicago, in the State of Illinois, instituted an action of assumpsit in the Circuit court of the city of Richmond, against the Andes Insurance Company of Cincinnati, Ohio, laying his damages at $20,000. At the same time, upon affidavit filed, that the defendant was not a resident of this State, an attachment against the estate of the Andes insurance Company was issued; and upon this attachmerJ Joseph Mayo, treasurer of the State of Virginia, was summoned as a garnishee.</p> <p>On the 5th of February, 1878, the Andes Insurance Company and Joseph Mayo, jr., treasurer, moved the court to abate the attachment. The company stated four grotmc[s oa which it based its motion; and the treasurer of the State relied upon the last two of these grounds; which are all that need be stated. They are:</p> <p>8d. Because the commonwealth, its officers and its agents, are not subject to attachment process.</p> <p>4th. The property of the defendant in the. treasury of the commonwealth, is not liable to attachment at the suit of a non-resident of Virginia, but is there held in trust for the benefit of the home creditors of the defendant corporation; and as to, any residue after the satisfaction of these claims, in trust, to be returned and delivered up to said defendant.</p> <p>It appeared that the Andes Insurance Company was created and located in Ohio; and having engaged in business in Virginia, the company had, in pursuance of the act of February 3d, 1866, deposited with the treasurer of the State $50,000 of the bonds of the United States.</p> <p>In November 1872 an agent of the Andes Company came to Virginia, to settle up its business. In December he satisfied Mr. Mayo, the treasurer, that all claims for unearned premiums and losses against the company, due to residents of Virginia, had been satisfied, except one claim for $900, which the company did not consider valid, and were resisting. And thereupon, Mayo transferred to the agent all of the $50,000, except what he considered sufficient to satisfy this and another attachment which had been served on him, and to satisfy the said claim, if it should be sustained, and such contingent liabilities as might possibly arise before a full settlement. The amount reserved by Mm was two bonds of $10,000 each, and $600 in gold, wMch be bad received for interest.</p> <p>Upon the hearing of the motion, the court m ade an order abating the attachment. And thereupon, Eolio applied to this court for a writ of error; which was awarded.</p>

<p>This is an appeal from a decree of the Circuit court of Patrick county, dissolving an injunction which had been awarded to the judgment of the said court. The material facts of the case are as follows : In December, 1862, the appellants, Thomas II. Penn and Jackson Penn purchased of the appellee, Pleming Reynolds, commissioner for the estate of Blinder W. Reynolds, dec’d, a tract of land in said county, containing about 325 acres, at the price of $30 25, and a slave named Mary, at the price of $2,168; for each of which two sums of money they executed a bond bearing date on the 29th day of December 1862, and payable twelve months after date* in current money. On the 6th day of January 1864, eight days after the bonds became payable, a tender of the amount of them, including interest, in Confederate money, was made by the debtors to the creditor, who refused to receive the same, because it was Confederate money. In February 1867, he brought an action at law against them upon the said two bonds, in the said court. On the 12th day of April 1867 the defendants plead payment, on which plea issue was forthwith joined, and leave was given them to file a special plea within sixty days. Ho such plea was filed within sixty days; nor does it appear that any other order was made in the case, until the 17th day of April 1868, when the cause was tried. On that day the defendants filed a demurrer to the declaration, which was overruled; whereupon the defendants asked leave to file two special pleas in writing numbered 1 and 2; to the filing of which the plain tiff objected, and the court sustained the objection, and rejected the pleas. They were, in substance, as follows:" Special plea Ho. 1, averred that the writing obligatory for the sum of $2,168 was executed for and in consideration of the purchase of a slave, and for no other consideration whatever; and that before the said writing became due and payable, or a short time thereafter, the title of the plaintiff to said slave had entirely failed; by reason whereof the defendants had been damaged to the amount of $2,168, which they prayed might be enquired of, and offset against the plaintiff's demand. Special plea Ho. 2, averred that on the 29th day of December 1863, (the day on which said bonds became due and payable,) the defendants tendered and offered to pay to the said plaintiff the said sum of money in said declaration mentioned, to receive which of said defendants, said plaintiff then and there wholly refused; that they have always from that time been, and still are, ready to pay to the said plaintiff the said sum of money in current money, as of the 29ih day of December 1863 ; and that they then, to wit: atthe time of offering such plea, brought the said sum into the said court, ready to be paid the said plaintiff if he would accept the same. The said special pleas being rejected, as aforesaid, there was thereupon a tx'ial by jury of the issue joined on the plea of payment, when the jury found for the plaintiff the debt in the declaration mentioned; and further found, “ that the same was contracted in relation to Confederate treasury notes as a standard of value, and that the true value of the same in lawful money is $8,000.” They therefore found “for the plaintiff the said sum of $8,000, with interest from the 29th day of December 1863and judgment was rendered accordingly.</p> <p>On the 7th day of July 1869, more than a year after the rendition of said judgment, the defendants filed a bill of injunction to the same in the said court, (having a few days previously obtained an order from the Judge of said court in vacation awarding such injunction,) in which, after referring to and stating the facts in regard to the said contract of purchase and the execution of the said bonds, they aver “ that said debts were contracted in reference to Confederate State Treasury notes as the standard of value.” They then allege that on or about the 1st day of January 1864, and within 3 or 4 days next after said bonds fell due, they tendered to the plaintiff, in payment of the same, the sum of $5,196 49 in Confederate States Treasury notes, that sum being the amount of principal and interest then due on said bonds ; that said plaintiff' refused to accept the amount thus tendered him, alleging as a reason therefor, and the only reason, that he did not want Confederate money; and that between the maturity of the bonds aud the date of said tender, there had been no substantial, or in fact any, depreciation in said currency. They set out, as a part of tlieir bill, a copy of the record of the action at law upon the said bonds; after which they “ represent, that had the debt been scaled to its true value as of the maturity of the bonds, as by law and the decisions of the Supreme court of Appeals of the State should have been done, the judgment should have been for $-—, and interest only, instead of the sum of $3,000,” which they say was the effect of scaling the debt “as of the date of the contract.” They charge that the Stay Law will soon expire by its limitation, and that said Revnolds is threatening to sue out execution on his judgment at law; and they therefore pray, that he be enjoined from all further proceedings on said judgment, and for general relief.</p> <p>On the 14th day of April 1870 the said Reynolds filed his answer, in which he demurred to the bill for want of equity; stated that the whole matter in controversy had been fairly and properly tried in the action at law, and verdict and judgment rendered therein accordingly; that the complainants had been in the possession and enjoyment of the said land ever since the purchase thereof, and of the said slave until she was emancipated in consequence of the war; that a court of equity had no right to interfere with the said judgment, on the ground of fraud accident or mistake, or any other ground; and that the only redress to which the'complainants were entitled for any error in the judgment was by an appeal from the same; but that there was in fact no error in said judgment, at least to their prejudice.</p> <p>Mauy depositions were taken and filed in the cause by both parties, relating chiefly to the questions, whether the sale was for Confederate money or not, and what was the value in good money of the said land and slave at the time of the sale. There Í3 much conflict in the testimony on both of these questions; the value of the. land, according to the witnesses, varying between about $800 and $3,000. Several of the jurors who tried the action at law were examined; one of whom said, the' jury decided upoD the proof of the value of the property before the war and at the time of rendering the verdict; that they valued the slave at $1,000 and the land at $2,000, and accordingly rendered their verdict for $3,000, which from the evidence they believed the property to be worth. One of the witnesses proved, that on the 6th day of January 1864, a tender was made of the amount of both bonds, in Confederate money, to the creditor, who refused to take the same; saying the legar tees were not willing to receive it. He did not object to taking the money because it was not the proper amount, but because it was Confederate money.</p> <p>On the 15th day of April 187.0, the cause came on to he heard upon a motion to dissolve the injunction, and the same was accordingly dissolved; and there was a decree against the complainants for costs and damages. From that decree they applied for and obtained this appeal to this court.</p>

<p>This was a suit in equity in the Circuit court of Wythe county, brought in March 1861 by David Cassell against Leonard G. Bailey, his former guardian, and Robert Sayers, jr., and John R. and Henry W. Richardson, as the sun ties of said Bailey, for a settlement of the guardian’s account. It appears that Mrs. Cassell, the mother of the plaintiff', owned a small farm of about one hundred acres, and some stock, on which farm she lived with her three children, two sons and a daughter. Previous to 1852 she married Leonard G. Bailey; and in November 1852 Bailey was appointed guai’dian of the children. At this time the ’plaintiff’ was about thirteen yeai’s old; the other two wex’e younger than the plaintiff'.</p> <p>In November 1854, one of Bailey’s sureties requiring counter security, Bailey executed another bond with other sureties. In February 1856, he executed another bond with other sureties ; and in February 1857 he executed a fourth bond with the defendants as his sureties. This last bond seems to have been executed without a previous rule upon him, or order, requiring him to give counter security.</p> <p>Sayers having auswered the bill, insisting that the last bond was not valid, and that the sureties in the second bond should be parties a commissioner was directed to settle the guardianship account; and he made his report, in which he charged the guardian with the sum of $345 18, as received the 10th of January 1855 ; and not allowing him any credits for expenditures or commissions, he stated the account by making annual rests, and charging compound interest upon the principal fund, up to the termination of the guardianship in December 1860, 'when the plaintiff’ attained the age of twenty-one years, the whole amounting to $502 46, of which $157 28 is interest. The commissioner reported that he considered the services of the ward rendered to the guardian, were a full and ample set-off against all and every charge for. board, clothing and tuition; and that he did not allow the guardian commissions because he had not settled his accounts annually before a commissioner, as the law requires.</p> <p>Bailey excepted to the report: 1st. Because no account is taken of the necessary expenditures made by the guardian for the boarding, clothing and schooling of the plaintiff,. 2d. Because no commissions are allowed. 3d. Because the guardian is charged with compound interest, whilst he ought not to have been charged with any. 4th. For improperly charging him with any balance. 5th. In allowing the labor of the complainant as a setoff to the amount expended in nex . cessanes for him.</p> <p>From the evidence returned by the commissioner his report, it appears that Bailey and his wife and her children lived on her farm in "Wythe county until 1856, when the farm was sold and another was purchased in the county of Carroll, to which they removned. The plaintiff lived in the family and was treated as one of it, and he worked on the farm, when he was not at school. Bailey who was a carpenter, worked at his trade; and all the profits of the farm as also that'of his labour, were expended in the support of the family, and they all including the plaintiff derived their support from it.</p> <p>As to the value of the services of the plaintiff some of the witnesses thought they were worth fifty cents a day, others thought they were worth his board and clothing.</p> <p>The cause came on to be heard on the 8th day of December 1861, when the court held that the bond executed by Bailey and the other defendants was valid, and that they were responsible to the plaintiff for whatever might be found due upon a settlement of his guardian accounts; and overruling the exceptions to the report, and confirming the same, decreed in favor of the plaintiff against the defendants for the sum of $502 46, with interest thereon from the 17th of December 1860 till paid, and costs. And thereupon the defendant Bobert Sayers Jr., applied to this court for an appeal; which was allowed.</p>

This was an action of debt in the Circuit court of. Wythe county, brought in September 1865, by David Sexton, assignee of Jacob Miller, against Margaret Windell. administratrix of William Windell, deceased, to recover the amount of a bond for $1,389, dated the 18th of July 1863, and payable two years after date, with interest from the date.

<p>In an action of debt in the Circuit court of Roanoke county, in which John B. Harding was plaintiff and Peter Saundeis, sr., Walter C. Callaway and others were defendants, a judgment was rendered in favor of the plaintiff against the defendants, on the 1st of September 1866, for $3,000, the amount of the negotiable note sued upon, with interest. On the 18th of November 1872 Callaway, one of the defendants, applied to a judge of this court for a writ of error to this judgment: and on the 27th of the same month the writ of error was awarded.</p> <p>At the next term of this court Harding moved the court to dismiss the appeal, as having been improvidently awarded.</p>

<p>M held the bond of G for $700 executed before the war. In September 1862 G proposed to pay M in Confederate money, which she refused to receive, saying she would receive the interest, but not the principal of the money. His brother C said he wanted money, and G. said if she would let C have the money, and give up his bond, he would go C’s security. M then let C have $100 of Confederate money, and C and G' executed their bond to M for $800, and she gave up G’s bond. Nothing was said about the bond being paid in Confederate money; and G paid to C $700 in that currency. Held : This was not a novation of the debt, but it retained its original character; and as to $700 it was to be paid in full, and as to $100 it was to be scaled.</p>

<p>1. H contracts to sell to M not less than 200 and not more than 300 good fat hogs, each to weigh not less than 180 lbs. gross ; to be delivered at G by the 8th December, and to be weighed at the scales at G. And M binds himself to pay to H for the said bogs, when weighed, 13J cents per pound gross weight, part cash and part in twenty days, H has at G on the Sth of December 241 good fat hogs, of which he gives M notice, but M declines to take them, and does not come to G on that day. H on that day procures B, the weighmaster at the scales, and G to weigh the hogs; and they weigh them in 16 parcels of from 7 to 20 hogs in a parcel, showing from the aggregate weight of all and the weight of each parcel, that the average weight is much over 180 lbs. gross. Held :</p> <p>1. H may maintain an action on the contract against M for the damages sustained by him for' the failure of M to comply with his contract.</p> <p>2. To entitle H. to recover from M, it is not necessary for him to prove that of the whole 241 hogs each weighed over 180 lbs. gross, and were “ good fat hogsbut if he prove that any number of them over 200, were of such weight and quality, he is entitled to recover.</p> <p>3. It is not necessary that H should have had each hog weighed separately in order to entitle him to recover, but if he proves to the satisfaction of the jury, that 200 or more of them each weighed 180 lbs. that is sufficient.</p> <p>4. An experienced drover of hogs accustomed to butchering and weighing them, who was present when the hogs were weighed, and saw them and attended to the weighing of them, may give to the jury his opinion as to the weight of each hog.</p> <p>5. As the hogs had. not been, weighed separately, either at G- or afterwards, the opinion of the witness is not substitutional, but is original evidence; and the best which under the state of facts is attainable.</p> <p>6. There having been no market price for hogs at G, on the 8th of December, H may show by testimony, wbat was the market price at that time, and shortly before and after-wards, in the surrounding country.</p>

<p>This is tbe sequel of the case of Cowan v. Doddridge, reported in 22d Gratt. 458. It is fully stated in the opinion of Judge Bouldin.</p>

<p>The case is sufficiently stated by Judge Christian, in Ms opinion.</p>

<p>This was an action of debt upon a bond in the Circuit court of Smyth county, brought in January 1870, by •H. I). Hull against Charles H. C. Preston and B. P. Mantz. The suit was abated as to Mantz. The paper declared on was signed and sealed by Preston and Mantz, and bound them to pay to D. D. Hull sixty days after date, the sum of six hundred dollars.</p> <p>Preston appeared and filed a plea of non est factum, accompanied by an affidavit stating the facts on which he relied to support the plea. He also pleaded payment by Mantz.</p> <p>The facts material upon the question decided by this court, are substantially as follows: B. B. Mantz was indebted to Preston for the purchase of cattle to the amount of about six hundred' dollars; and informed Preston that he did not have the money, but that he could raise the amount in Marion if Preston would exécute a note for that amount; Mantz said he thought he, could get it from Governor Fayette McMullin. Preston and Mantz then singed the paper sued on, in which there was a blank left for the name of the payee; and it was left with Mantz for the purpose aforesaid. Preston said it was his impression that Mantz was to get the money from McMullin; but he was not instructed not to get it from any one else; and the blank was left in the paper for the name of the person from whom he should get the money. But Preston never did deliver the nofe to Hull, nor know that he had discounted it, until after the failure of Mantz, and the execution of a deed of trust by him; when he was informed by Hull that he held the note shortly after it fell due. And Preston thought the note he had signed and handed to Mantz had been destroyed; and he never received any money upon the bond or derived any benefit from it.</p> <p>After the evidence had been heard, the plaintiff asked the court to instruct the jury as follows: If the jury shall believe from the evidence, that the defendant C. H. O. Preston, executed the single bill in the declaration in this cause mentioned, and delivered the same to his co-obligor B. F. Mantz with a blank in said single bill, where the name of the obligee D. D. Hull the plaintiff, is now inserted, with the understanding that the said B. F. Mantz was to procure money on the said single bill, and to write the name of the person from whom the money should be procured, in said blank as obligee, and to deliver the said single bill to such obligee; and if the jury shall further believe from the evidence, that the said B. F. Mantz procured money from the said B. D. Hull, the obligee aforesaid in said single bill, and wrote the name of the said D. D. Hull in the single bill, and delivered the same to the said B. D. Hull; then the said single bill is binding upon the said Preston, and the jury must find the issue for the plaintiff.</p> <p>The defendant objected tp the courts giving this instruction: but the court overruled the objection and gave it: and the defendant excepted.</p> <p>The defendant then moved the court to instruct the jury as follows :</p> <p>If the jury shall believe from the evidence, that the paper sued on as the bond of the defendant Charles H. C. Preston, was placed in the hands of B. F. Mantz to raise money from F. McMullin on, and that when it was so placed in his hands, it was blank as to the name of the payee, and that it was afterwards filled up with the name of D. D. Hull, without the knowledge, consent or authority of the defendant Preston, then it is not his deed, and they should find for the defendant Preston.</p> <p>The court refused to give this instruction in the form offered; but gave it with the insertion of the word “only” after the word “money.” To which opinion and ruling of the court the defendant Preston excepted.</p> <p>The defendant applied for another instruction, which was refused; and he excepted: hut it is unnecessary to state it.</p> <p>The jury found a verdict for the plaintiff for $600 and interest: And the court rendered a judgment accordingly ; having overruled the motion of the defendant for a new trial; to which Preston excepted. And upon his application a writ of error and supersedeas was awarded by this court.</p>

<p>This is a supersedeas to a judgment of the Circuit court of Roanoke county, rendered in an action of trespass on the case, brought by the plaintiff in error, Trout against the defendants in error, the Virginia & Tennessee Railroad company, to recover damages for the destruction of two mares and the injury of a horse, belonging to the plaintiff, on the railroad of the defendants, alleged to have been caused by the negligence and carelessness of the defendants, their servants and agents in driving and running their engines and coaches, on said railroad, in said county. The only plea in the case was “not guilty,”-on which issue was joined; and the case was tried by a jury. Four witnesses were examined in behalf of the plaintiff', including the plaintiff' ^himself; and-five in behalf of the defendants. The ev^eT22 being iully heard, the defendants tendered a demurrer thereto. The plaintiff objected to joining: in the demurrer, but the court overruled the objection and required him to do so;_ which he accordingly did. ’Whereupon the jury fo.uud a verdict for the plaintiff and assessed his damages to the sum of $600, with interest thereon from the 9th day of November 1869 till paid, subject to the opinion of the court upon the demurrer to the evidence. The court was of opinion that the evidence was not sufficient in law to maintain the issue joined on the part of the plaintiff; and accordingly gave judgment for the defendants. To that judgment the supersedeas aforesaid was awarded by this court.</p> <p>The substance of the evidence set out in the demurrer, or so. much of it as seems to be material, is as follows: The railroad runs through, and bisects the land of the plaintiff in Roanoke county, for a considerable distance; how far does not appear. At the time of the injury ' there was, and for many years prior thereto there had been, a fence on each side of the railroad, running through the plaintiff’s land, if not to its whole extent, at least to a large part’ thereof. The fence certainly extended from the bridge across Peter’s creek westwardly, for more than a half of a mile, to a cattle guard. It had been erected and kept up by the plaintiff, at his own expense, on the land of the defendants, by their consent. The fence on the north side of the railroad being fourteen feet, and that on the south side seven feet, from the road. It is proved by a witness of the plaintiff to have been a good fence at the time of the injury; a portion of it being a plank fence, and the balance rail. Across said road, running between these two collateral fences, the plaintiff had but one way leading from one part of his land on one side, to the ° ^ part on the other side, of the railroad; and he had gate on each side of the railroad where it was crossed by the said way. That way, besides being used for plantation purposes and as a means of communication between the different parts of his land lying on either side of the railroad, was also used by him and one or two of his neighbors as a mill-road, and by a few of them as a neighborhood road. The gates had latches and pegs, with which they were generally kept fastened ; though they may have been, and no doubt were occasionally, left open by persons passing through. There was no other outlet from the railroad through either of the fences except by draw bam in the fence on the north side of the road, between the crossing and the cattle-guard, and nearer to the latter than the former, unless there was also a similar outlet in the fence on the south side, about which the evidence was uncertain. The plaintiff was in the habit of pasturing his stock on his laud, first on one side, and then on the other side of the railroad. At the time the damage was done, he was using the land on the north side as a pasture. In the night of the 9th of November 1869, during which the injury complained of was done, his two mares and horse named in the declaration, and three colts, got through the gate on the north side of the ' crossing upon the railroad and went up the road towards the cattle-guard. He could not tell how the gate happened to be open that night. He passed through and shut it that evening. They were somewhere between the crossing and the cattle-guard, but much nearer the former than the latter, when, about a quarter before ten o’clock at night, the defendants’ en^ne aiQC^ ^ra^n 0*' cars’ being the mail train going west; reached the bridge across Peter’s creek. The plaintiff was then at his house some 500 oi 600 yards from the . d railroad. He says, “the night the horses were killed bi® attention was attracted by the constant whistling of the engine. He thought the first whistling was east of the bridge. He heard breaks blown down, and then continuous whistling. The train did not stop where the blind mare was killed, but continued to whistle from there, as if it was after stock, until it got around the turn of the hill through the cut. and then commenced ’whistling much louder and faster, and he heard the train stop. There was continuous whistling from the time he first heard it east of the bridge, until the train got to the cattle-guard, except some momentary intervals. He does not think the speed was slackened at the point where the blind mare was killed, but he could not tell. He thinks they went through at the usual speed.” The train was about an hour behind time. He left his house to go to the road | before 10 o’clock. He went there to see what was the matter; he heard the whistle of the engine through his land and heard the train stop; and that caused him to go. “ When he went to the road, he found the blind mare dead, above the gate at the crossing. He continued then to go west, as far as the cattle-guard. When he got tq the cattle-guard he found a train there, the front wheel of the engine being off the track. He found there the other mare dead, under the engine, and some one was trying to cut her in two to get her from under the engine. The brown horse was standing under the fire pan the engine, in the cattle guard. He thought he would die; he was burned very badly, and was reeling if just ready to fall.” He turned out to be of no value. The plaintiff’s two year old colt was pulled ou of the cattle guard, but was very little injured. The plaintiff in his testimony further says, that “from the place where the blind mare was killed the road was straight for 520 yards east of that place. The blind mare was killed 86 yards west of the gate at the crossing. She was killed in a cut between 8 and 4 feet deep. The cut did not extend from the place where the mare was killed quite 86 yards east. At the gate the road is level. A few yards from the gate the cut commences, and gradually deepens to 3 or 4 feet deep, where the mare was killed, and continues to deepen after that, till it is nine feet deep. From the cut you get on a fill, and then a curve commences, and then at a distance of 150 or 200 yards, a short cut again commences, 12 or 14 feet deep in the curve, and then gets to a fill out of the cut, which fill continues to the cattle guard, where it is near about level. From the last cut to the cattle guard west, he thinks, is 350 or 400 yards, but he did not measure it. It is up grade from the bridge to the curve. From the curve to the cattle guard, he is under the impression is about level. He does not know that one could see to the cattle guard from the west end of the cut, hut thinks the cattle guard could be seen from a point 50 yards west of the cut; there is nothing to obstruct a view from that point to the cattle guard. The morning after the horses were killed, he saw tracks of horses on the railroad, from the gate to the cattle guard. The cattle guard on the railroad is at the end of his fences west. There are no cattle guards at the gates at the crossing where the road crosses the railroad. It would be much better to have cattle guards; it is inconvenient not to have them; he never applied for any there; he had applied for some at another point, and he mentioned to the section master tiiere ought to he cattle guards at the crossing, who replied that it was useless to apply, as he could not get them.”</p> <p>The foregoing statement cf facts is derived, almost entirely, from the testimony of the plaintiff himself. The testimony of the other witnesses of the plaintiff'need not he repeated here. It relates to the description and value of the horses killed and injured; the description of the ground over which the railroad runs through the land of the plaintiff:'"; the distances of objects on the-road from each other; the distance at which an object, such as a horse, can be seen on the railroad, in the night, by the head lights; the length of time required to stop a train running at the usual speed, or to check such a train, &c., &c.</p> <p>The testimony in behalf of the defendants consisted mainly of the evidence of Hooper, the locomotive engineer in charge of the train at the time of the killing of the horses in the declaration mentioned. He testifies, among other things, that on the evening of the 9th of November, 1869, he was running the mail passenger train. About three-miles west of Big Lick, his attention was called to an animal ou the track; only one at first. As soon as he discovered the animal he blew down brakes and used every exertion in his power to check the train, as it had been the usual custom to do. The engine struck the animal, he supposes, at a distance of about seventy-five yards from the place at which lie first saw him. The train, at the time the animal was struck, was checking up, and attained its lowest speed twenty-five or thirty yards west of that point. After he found the animal was off' the track, and no damage done to the engine, he blew off brakes and proceeded west slowly, to the top of the grade. Before reaching the top of the grade, he saw two or three other horses, some one hun - dred and fifty yards ahead, on the track. He blew his whistle, for the purpose of scaring them off from the point at which he saw them, till he reached the top the grade, and saw nothing more of them until he was within thirty or forty feet of the cattle-guard. He thought when he reached the top of the grade, and saw nothing more of the horses, that they had gone out into the plaintiff’s field, through the bars near the top of the grade. When he got in thirty or forty feet of the cattle-guard, he saw a body partly in and a portion of the body out of the cattle-guard. He blew down brakes repeatedly, reversed his engine, used sand, and used every exertion to avoid running into the animal in the cattle-guard. With all the exertions he could not avoid striking the animal. The animal was pulled out of the cattle-guard by the engine, and drawn the length of the engine. The fire pan stopped immediately over the cattle-guard; the back wheels of the front truck of the engine being thrown off the track. A large portion of the animal, nearly all of it, was under the truck of the engine, and had to be removed before the engine could be put on the track. .He assisted in moving it; a portion had to be cut to pieces with axes, and a portion with knives, to get it out. After getting the animal from under the truck, we proceeded to put the engine on the track, which took about 20 minutes time. After getting the engine on, we backed over the cattle-guard, and put on cross tiesto enable us to get the horse out that was burnt, and took him out, and moved him one side, and left and went on with the train. The road is straight from the point where he saw the first animal to the place where it was killed. The grade was up, say ten or twelve feet to the mile. The up grade continues about 325 yards from where he saw the first animal. From the top of the grade down to the cattle-guard, is a gradual down grade, averaging 40 feet to the mile. The distance is 1550 feet.' A curve commenees at the top of the grade, and continues to west of the cattle-guard, where the second horse was killed.” “Starting from the top of the grade he could not, with the aid of head lights, see a horse on the track beyond the distance of forty-five yards, at no point between that place and the cattle-guard, where the horse was killed. From the time he saw the first horse he checked, and did not run more than three miles an hour. After seeing the second horse he did not run over five miles an hour: although he thought they had escaped he did not hnoio it, and was running slowly until he discovered the horse in the cattle-guard. Thinks he can see a horse on the track by aid of the head light, in a straight line, 250 or 275 feet. In running along the curve, he could not have seen a horse on the track further than fourteen yards. As he approached the cattle-guard, he discovered a horse in it, but it turned out that there were two horses and two colts. One of the horses was killed and the other injured, and the two colts escaped uninjured. He could not put out the fire in the fire pan without scalding the horses under it. Pouring water in it to put the fire out, it would have run down on the horses and scalded the one that was already burnt and the one uninj ured. "When the first horse was discovered he was on time, and running at the rate of 17 or 18 miles an hour.” “ From his experience as an engineer, running at the speed he was at the time he first discovered the horse, that is 17 or 18 miles an hour, he could not have stopped the engine under 600 feet. At the time the first animal was struck, he thinks the engiue was running at the rate of eight miles an hour; it was in the night and difficult to tell. An engineer excited in running over a horse cannot well tell how fast he is running. He continued to blow his whistle. from the time he first saw the animal that was first killed till he struck it. Don’t think the animal moved, from the time he first saw it until it was struck. He not blew the whistle, but reversed the engine, before he struck the first horse that wa killed.” “ At the time of killing the horses the brakes were in good condition. There is great danger of throwing the trains off the track when the engine runs over a horse, and the danger is increased when the train is running slowly.” He testifies in his cross-examination, that “he is familiar with the track of the road through the plaintiffs land, and knew the fences were near the track, and that drawbars were near the track; thinks on both sides; knew they were on the north side. Does not recollect that he noticed that night, whether the drawbars were open or closed. Does not think that his head lights would have extended to the drawbars, which were about 30 feet from the track; knew there was no cattle-guard between the bridge and where these horses were killed.”</p> <p>The foregoing is the substance of the testimony of this witness, who was the only witness on either side who was present when the damage was done. The other witnesses of the defendants (with perhaps one, and that an unimportant exception,) were officers and agents of the defendants., who were not present on that occasion, and whose testimony seems not to be very important. They testify, chiefly, as to the state of the railroad between the bridge and the cattle-guard, the length and the depth of the cuts, the time in which a train running atfull speed can be stopped by the engineer, “ the distance to which light is thrown by the head lights on a straight track and on a curve, &c., &e.” Mitchell, a division master, in the employment of defendants, whose business requires him to go frequently over that part of the road where the horses were killed, and who is well acquainted with it, describes it particularly. He says he “ is familiar with the run-mug of engines. He thinks a head light would throw the in a straight direction where the first horse was killed 250 feet from the top of the grade towards the cattle-guard. 1 have rode along frequently on the engine in the night. At places I don’t think the light would be thrown more than 65 feet on the strongest portions of the curve; at other places about 100 feet. At a point 100 yards east of the eattte-guard coming west, the head light he thinks would be thrown 100 feet on the track.” G-oodwyn, who is civil engineer or a roadmaster of the defendants, “is familiar with the running of engines and trains on rail-reads, and with the ground where the horses were killed; has been on the engine and noticed how far ahead light would be thrown on the track; thinks 100 yards would be the outside distance to which the light would be thrown in a straight direction. From the summit to the cattle-guard is a 3 degree curve. The light would be thrown straight ahead, but owing to the curve it could not be seen on the track more than 40 or 50 yards.”</p>

<p>This was a suit in equity instituted in July, 1866, in the Circuit court of the county of Smyth, and after-wards transferred to the Circuit court of the county of Tazewell, hy D. D. Hull and six others, children of Thomas T. Hull, deceased, against Wade I). Strother, adm’r de bonis non with the will annexed of said Thomas T. Hull, and his sureties, for a settlement of'his accounts, and the distribution of the estate.</p> <p>Thomas T. Hull died in 1854, having made his will, which was duly admitted to probate in the County court of Smyth. He left eight children, all of them infants under the age of twenty-one years.</p> <p>By the 1st item of his will he directed that all his personal estate should be immediately sold, except so much as in the opinion of his executor will be necessary for the immediate use of his children in general, and except, also, such things as in his opinion will he expedient for either of my oldest children to keep at appraisement price. And out of the money arising from said sale, all his debts and funeral expenses were to pe paid.</p> <p>By s. 2, he says: My home farm, that is, the land I bought of Blessing, and the poor-house tract, be kept and used for the benefit of raising my children, so far as my executor may think practicable, and so long as they may he kept together on said farm. I hope my aunt, Mrs. Denton, will remain with my family, and be to them as she has-been to me, a mother................. It is further my will that so soon as my daughter, Ann, shall marry, she shall have the use and benefit of my said home farm, by her talcing special care of the younger portion of the family as members of her family, unless my executor shall see fit, in his discretion, to charge more for said land, and whenever he shall see fit to remove them for their benefit to school; then I wish the said farm so managed as he may think best for the benefit of my children up to the 1st of January, 1861, then I desire that my daughter, Ann, shall have my said home farm, if she is living at that time.</p> <p>By the 3d and 4th clauses of the will he directs certain lands therein mentioned shall be used in the discretion of his executor, for the benefit of all his children, until the 1st of January, 1861. And then he gives that mentioned in the 3d clause to his daughter Haney Jane, and that mentioned in the 4th clause, called the Miller and Kesner lands, to his two sons, David and John. And as he was sued for the Miller farm, he directs, if that is lost, David shall have the Kesner larm. His other real estate he directs to be sold immediately after his death.</p> <p>By the 8th clause of his will he desires all his children to be liberally educated and equally at the expense of his estate.</p> <p>Item 9. I desire that on the 1st of January, 1861, all my effects, lands, property, money, &e., be valued, and all my children be made equal. Those receiving property amounting to more than their shares wilL then refund, as all shall be equal in my estate, as they are all equal in my regard.</p> <p>In the 10th clause, after directing that if one of his children to whom he has devised lands, shall die before the 1st of January, 1861, the same shall be assigned to some other of his surviving children, he adds : I authorize the County court of Smyth to appoint three valuers and commissioners to value and divide my estate aforesa^’ 80 as make my children equal; and I empower them, in the event contemplated in this clause, to decide to whom of my surviving children the lands shall be assigned.</p> <p>And by the 16th clause, his executor was authorized to loan at interest any funds of his estate till necessary for distribution.</p> <p>James W. Sheffey was appointed executor of the will, and he qualified and continued to act as such until 1854, when “Wade D. Strother having married Ann, the eldest daughter of the testator, Sheffey procured himself to be removed, and Strother qualified as administrator de bonis non with the will annexed, giving a bond which only covered the personal estate; and he received from Sheffey all the assets in his hands, amounting in notes to a little upwards of $12,000, and in property appraised at $500.55.</p> <p>Upon the marriage of Strother with Ann, the eldest daughter of Thomas T. Hull, they took up their residence at the home farm, mentioned in the second clause of the testator’s will, and took charge of the younger children, who were kept with them, and were cared for by them in the manner contemplated by their father.</p> <p>In March 1860 David D. Hull, being then over the age of twenty-one years, filed his bill in the Circuit court of Smyth county, against John U. Hull, then an infant, and the other devisees of Thomas T. Hull, asking the court to decree a sale of the land devised to himself and John H. Hull; and in Api’il 1860 the court made a decree appointing Wade D. Strother to sell the same, upon the terms of one half of the purchase x money to be paid on the 1st of January 1861, and the other half on a credit until the 12th of January 1864, with interest payable semi-annually; when John 2sT. would have arrived at the age of twenty-one years. In September the commissioner reported he had sold the laud on the terms of the decree to Robert Goolsby for §12,200: and in the same month the court comfirmed the sale, and directed Strother to collect the first bond of Goolsby and' hold the proceeds thereof, after defraying the expenses of sale, as assets iu his hands as the adrn’r de bonis non of Thomas T. Hull, deceased; and upon the receipt of this money to convey the land to Goolsby with special warranty, reserving a lien on the land for the payment of the second bond. And this was the last order made in the cause, except to continue it on the docket.</p> <p>In September 1860 the County court of Smyth, in pursuance of the 9th and 10th clauses of T. T. Hull’s will, appointed John M. Preston and two others, valuers and commissioners to value and divide according to the provisions of the will, his estate real and personal on the 1st day of January 1861, taking the balance which should be found due in the hands of Strother, as administrator of T. T. Hull, into the calculation, as it should be exhibited upon his settlement, which a commissioner of the court was directed to make.</p> <p>The account of the administrator not having been settled, the commissioners proceeded to value the land devised to each of the children, except that devised to David D. and John H. Hull, and returned their report to the court.</p> <p>In March 1867, Strother filed his answer in this cause; and the court made a decree directing Joseph "VV". Caldwell to settle the administration account of 'Strother. And in August 1867 another order was made directing Strother to deliver possession of the land devised to the testator’s daughter Nannie, to her and her husband John B. Smith. After Nannie J. Hull, came of age she contracted in April 1861 to sell a part of the land devised to her, to W. H. Strother, for the sum she would have to account for to the estate of her father,- ‘with interest thereon from the 1st of January -preceding. She married -in November 1861, and afterwards Strother rescinded the contract with her husband John B. Smith, and delivered to him the agreement: but the land still remained in his possession.</p> <p>In March, 1868, the commissioner returned his reporc. He brought down the administration account to January 1st, 1861, and in it he charged the administrator with ren+s of the land, devised to the children, including the home place left to his wife Ann ; and also for waste of fences and buildings $133.25, and for furniture unappraised, which was retained in his house, and was destroyed when his house wTas burned, $230, and stated the account as a guardian’s account, compounding the interest ; and the administrator not having settled his accounts as required'by the statute, he allowed him no commissions ; and he reported a balance due from the ad- ■ ministrator of $14,525.</p> <p>On the 1st of January, 1861, he brought together the whole estate, charging the land of David and John, sold to Goolsby, at $12,200, and the other lands at the prices fixed upon them by Preston, &e.; aud he then credited him with the price of the land devised to his wife and Mrs. Smith, with $4,000 paid to D. D. Hull, by his order on Goolsby, and $6,100 to John N. Hull’s guardian, note of Goolsby, and he reported the balance due from Strother $16,625. The commissioner then stated an account with each of the children. One of them, Mary C. Hull, had died in January, 1862; and ascertaining the amount due to her at that date, to he $5,250, he divides this sum among the surviving children, to each $750 ; and he brings this sum into their several accounts, and charges the administrator with it, and with interest thereon from the date of her death. In the account with Smith and wife, he charges Strother with the rent of her land during the whole period from January, 1861, including the time he held it under his purchase from Mrs. Smith; and he charges him also with $235.63, amount estimated for wTaste of fences on this land since 1860. These individual accounts seem to be settled on the principle applicable to the accounts of executors and administrators, as to the interest; except that of Henry JB. Hull, who was a minor when the suit was brought, in which the interest is compounded.</p> <p>The defendants filed fifteen exceptions'to the eommis sioner’s report. The first was to the charge of $230, for furniture unappraised. This furniture remained in the house and was used by the defendant, and was consumed when the house was burned. In his answer he admitted he should be charged with it. The fifth exception was to the charges, $133.25, for waste of fences and buildings, on the ground that nothing .of this sort is claimed by the bill, or justified by the decree for the account. The eighth exception is to the disallowance of cimmissions. The tenth is to the charge, of rent of Hamiie J. Hull’s land, whilst he held and claimed the same as purchaser. The eleventh is to the charge of $235.63 as damages to the said land, on the same grounds stated in tiie fifth exception. The thirteenth and fourteenth exceptions were to scaling payments made to merchants for goods furnished to four of the children, on the ground were bought at the old prices; though they were paid for with Confederate currency.</p> <p>The plaintiffs also filed exceptions to the report. First Because the charge of $£30 for unappraised furniture is sma^> being less than testified to by the witnesses. Fifth: Because he has allowed the administrator for board for the younger members of the Hull family, prior to 1861, and has charged him with rents of the home farm, contrary to the provisions of the will.</p> <p>The cause came on to be heard on the 31st of March, 1871, when the court sustained the fifth, eighth, tenth and eleventh excejffions of the defendants, and overruled all the rest, and also all the exceptions of the plaintiffs, and recommitted the report to the commissioner, with instructions to disallow the charges mentioned in the fifth and tenth exceptions, and the charge for rent upon Mrs. Smith’s land after the 1st of January, 1861; and allow any other charges against Smith and wife that-the administrator might prove; and to allow five per cent. commissions on his disbursements. And the cuase was transferred to the Circuit court of Tazewell county.</p> <p>The commissioner having returned his report, to which there was no exception, at the May term of the Circuit court of Tazewell county, Strother presented a petition, in which he asked that the previous decree might be opened,upon the ground, among others, that he should not be charged with compound interest, because that from the condition of the country from 1861 it was impossible for any fiduciary to have collected and reinvested money safely.</p> <p>The cause came on to be finally heard on the 9th of May. 1871, when the court refused to allow the petition of Strother, and confirmed the report; and made a decree in favour of Strother against Smith and wife, au'd John FT. Hull, for the balances reported against them respectively; and against him and Ms sureties in favour of D. D. Hull, Ellen V. Hull, Pauline A. Hull and Henry B. Hull, for tlie amounts reported to be due them respectively; and in addition decréed in favour of all the plaintiffs .respectively, each for the sum of 1735.126-7, with interest thereon from the 1st of January, 1862, that being the share of each in the estate of Mary C. Hull, deceased. • And from this decree Strother and his sureties applied to this court for an appeal; which was allowed.</p>

<p>On the 23d of October, 1835, Nicholas P. Oglesby and Robert G-ibbony entered into partnership for the purpose of carrying on a merchandizing business at the town of Evesham, in the county of Wythe, which was to last three years. Each partner was to put in $4.000 as capital in the concern; and for any other sums put in by either of them, he wras to be allowed interest. Oglesby was to have the whole management of the business, for which he was to be allowed $350 a year ; and at the close of the partnership, after payment of debts and expenses, and the allowance to Oglesby, the capital furnished by each partner was to be returned to him; and the net profits to be equally divided between them. And it was agreed that the money on hand at the termination of the partnership should be applied, first to pay the expenses, then to pay the capital put in, first paying any overplus of capital furnished by either, with its interest; and the balance of money, if any, should be equally divided between them; and if they should not at the close of the partnership, make a distribution of the uncollected debts, Oglesby was to have the management of their collection; but either partner ■ might at any time after the expiration of the three years, require a division of said debts.</p> <p>The partnership was continued until the death of Oglesby. He died intestate, in February, 1838, leaving a widow and four infant children; and the widow having renounced her right to administer on his estate in favour of Thomas J. Boyd, he qualified as administrator of Oglesby in March; and the business of collecting the debts and winding up the business of the partnership was committed to him by Gibbony, the surviving partner.</p> <p>Boyd seems to have proceeded with great diligence and efficiency, to collect the debts due to the partnership, and to pay the debts they owed. The former were numerous, and generally for small amounts, nine-tenths of them ranging from twenty-five cents to fifty dollars. To pay the debts of the concern, he borrowed near $5,000, for which he bound himself personally; by which means he seems to have prevented all suits by the creditors of the partnership. He sold to Gibbony the' one-half of the goods on hand'to which Oglesby was entitled; and in August, 1840, Gibbony being then indebted on account of goods received by him, in the sum of $2,213 89, they entered into an agreement, by which Gibbony was to retain of that sum, $2,013 89, in full satisfaction of his entire interest in the net profits of the partnership; and in consideration therefor, he surrendered all claim to any part of the uncollected funds of the partnership. And he was not to be responsible for any debts of the concern, or for the failure to’ collect any part of any due to it, except for one-half of so much as George R C. Floyd should obtain credit for, on an ac■count due by him to said firm, then in suit in Wythe county, unless Gibbony could show that by law Oglesby should lose thé whole of such credit.</p> <p>In 1842 commissioner Mathews settled the accounts of Boyd as agent of Gibbony, the surviving partner, and also as administrator of Oglesby. In the first account it appeared, that including the money he had borrowed to pay the debts, he had received up to March 1839, $14,516 98; and including payments of part of the money he had borrowed, the disbursements amounted to $14,097 89. And the commissioner allowed him a commission of five per cent, on $16,324 74, which is the balance of receipts and disbursements for the year, after excluding $12,290 14, which made up the money he had borrowed and paid back, and moneys collected or paid, by Gibbony; on which no commissions were allowed. In the year ending March 1840, his receipts were $7,751 57, and his disbursements were $8,565 39; but there was included in these disbursements; moneys retained by Boyd, as adm’r of Oglesby. And he was allowed 5 per cent, commissions on $6,399 84, which sum was the balance of receipts and disbursements, after deducting the sum of $9,200 for moneys retained by Boyd as above stated, that being double the sum so retained. From March 11 to August 1st 1840, when Gibbony and the administrator contracted for the adjustment of the partnership accounts, as before stated, the receipts were $4,165 35, including the debt of Gibbony to the partnership, and the disbursements including the moneys retained by the administrator, were $4,165.35 ; and¡the same commissions were allowed on. $1,836 48, the balance after deducting Gibbony’s debt, and the amount retained by the administrator.</p> <p>The administration account of Boyd is stated by the commissioner, and he brings into it all moneys received by him, whether of Oglesby’fe individual estate, or from the partxiership effects, and he credits the administrator with the payments made to the widow and guardian of the children; and allows him five per cent, on receipts and disbursements. And the account shows that the administrator paid over the moneys received by him, to the widow and guardian as fast as he received it.</p> <p>' In April, • 1858, Jane O. Oglesby, the widow of Nicholas P. Oglesby, and his four children, one of them an infant by his next friend, filed their bill in the Circuit court of Wythe county, in which after setting out the partnership, the death of Oglesby, the qualification of Boyd as his administrator, and the agency of Boyd in settling up the partnership business, and the settlement of his accounts by commissioner Mathews, they say that in the conduct and management of Boyd in his agency, and in the settlement of that, apart from the individual estate of Oglesby, they find nothing of which they propose to complain. But they do object to the purchase made by said Boyd of Gib bony’s interest, after returning all capital advanced, and allowing him, as surviving partner, the sum of $2,018 89, on the score of net profits; because Boyd, after returning to the estate,of Oglesby, all capital stock which had been paid in, failed to realize for the benefit of the estate an amount of profits equal to that allowed and paid to the surviving partner. And they object further to the allowance of five per cent, commissions on the receipts and disbursements in the settlement of Boyd’s account of his administration on the estate of Oglesby. And making Boyd and his sureties and Gibbony defendants, they pray that the administration account of Boyd be surcharged and resettled as to the allowance of $2,013 89 to Gib bony,-and the commissions of five per cent., upon receipts and disbursements; and for general relief.</p> <p>Gibbony and Boyd answered the bill. They both relied on the account settled by Mathews, and the time that had since elapsed, as forbidding the opening the account at this late day. Boyd insisted that he had authority to make the contract with Gibbony, and that it would have been favourable to the estate, but for the action of Oglesby in relation to moneys received by him on Floyd’s debt, and of which Boyd was not informed when the contract was made. He insisted further, .that the question of his commissions had been well considered by commissioner Mathews, when he made the allowance; and indeed, under all the circumstances of the case, was -a small compensation for the time, labour, and responsibility which he was subjected to.</p> <p>In September, 1859, the court directed a commissioner to take an account of Boyd’s administration upon the estate of Oglesby. And subsequently upon application by the commissioner to the judge in vacation, for in strructions as to the principles upon which the account should be stated, he was directed to ascertain the net profits realized by the firm of Oglesby & Gibbony, and what proportion of such profits Oglesby’s administrator is entitled to, and charge him with such amount; and that he allow the administrator five per cent, commission on receipts; and also what in his opinion would be a reasonable compensation to said Boyd in the way of commissions, if in his opinion five per cent, was not enough. The accounts already settled, so far as they went, to be taken as the basis of his settlement, with the foregoing exceptions.</p> <p>In February, 1867, commissioner Caldwell returned his report. In ascertaining the net profits of the partnership, he disregarded the contract between Gibbony and Boyd, of August 1st, 1840; and holding that it was the duty of the surviving partner to wind up the business without compensation, he struck out of the agency account all the credits for commissions, and added these amounts to the balances of net profits; and charged the administrator with one-half of the net profits so ascertained. And allowing five per cent, upon his receipts, charged in the administration account, and $867.38 arrears of interest, as an additional allowance, he reported the administrator to be indebted to the estate of his intestate, on the 17th of February, 1847, in the sum of $2,008 93, of which $1,866 95 was principal, and $522 21 is interest.</p> <p>The defendants filed twenty-six exceptions to the report ; but it is not necessary to statejall of them. They excepted, first, to the agency account, because no such account was directed by the court; and because the bill expressly disclaimed any intention to complain of that account as settled by comm’r Mathews: Again, because in both accounts the agreement between Gibbony and the administrator was disregarded: Again, because the commissions allowed by comm’r Mathews were disallowed in the report; and no compensation having been allowed for settling up the business of the partnership : Again, because Oglesby’s estate was noteharged with the $1,000 paid to him by Floyd, and not credited to the partnership on their books. There were further exceptions to particular items of charge in the administration account, some of which were included in other charges.</p> <p>In relation to the Floyd debt it appeared that George R. C. Floyd dealt with the concern; and on the 7th of March 1838 he owed upon his account, $2,417.10 ; upon which there was a credit on ■ the books of the partnership, of $1,000 under date of April 23d 1837. Floyd insisted that he had paid to Oglesby the further sum of $1,000. In July 1840 suit was instituted against him by Gibbony as surviving partner, in the Circuit court of Wythe county, for the recovery of the debt. In this suit Floyd claimed credit for this additional payment; and in consequence of this dispute, the case was not tried until April 1842, when the jury allowed the credit claimed by Floyd, and rendered a verdict for $427.88, with interest from the 12th of August 1838; and the judgment was accordingly. It appears further that Floyd was good for the money in 1840; but when the judgment was obtained in 1842, he had become bankrupt</p> <p>The cause came on to be heard on the 28th of March 1872, when the court held that the plaintiffs, by their bill, acquiesced in the account rendered of the partnership transactions of Oglesby and Gibbony, including the allowance of commissions to the defendant as agent for settling the partnership business; and therefore sustained the exception to the disallowance of these commissions ; and overruling all the other éxeeptions, confirmed the report in all other respects; and directed a commissioner to restate the account.</p> <p>The account as restated found Boyd to be debtor to his intestates estate, on the 17th of February 1847, fin the sum of $1,199.75 of principal and $340.68, of interest. And the cause coming on to be finally heard, on the 2d of April 1872, the court confirmed the statement and made a decree in favour of the plaintiffs for this sum, with interest, against Boyd and his sureties. And thereupon the representatives of two of the sureties who were dead, applied to this court for an appeal; which was allowed.</p>

<p>This case is sufficiently stated by Judge Christian, in , . his opinion.</p>

Joseph Glasgow, of the county of Kockbridge, died in 1856, leaving a will, which was duly admitted to probate in the county court of Kockbridge; and leaving surviving Mm Ms wife and one cMld, Elizabeth Johns.

<p>The case is fully stated by Judge Moncure, in his opinion.</p>

This was an action of debt in the Circuit court of Frederick county, brought in September 1869, by the executor of Gabriel C. Harris against George C. Harris, to recover the amount of three bonds executed by George C. Harris to his father Gabriel C. Harris. The defendant appeared and filed the plea of payment; and he tendered a special plea of equitable offset; which being objected to by the plaintiff’s counsel, was rejected by the court; and Harris excepted.

<p>The case is sufficiently stated in the opinion of Judge Staples.</p>

Ttie Winchester Building Association was organized under the acts of Assembly of Virginia in relation to ¡such associations, in November 1867, and went into operation in January 1868.

<p>This was a bill filed in January 1871 in the Circuit ■court of Clarke county, by the executors of Isaac Tyson, jr., deceased, against L. A. Glaize and others, to set aside a judgment which had been recovered against Isaac Tyson, jr., and to enjoin the sale of real estate under an :attachment issued in said suit. The defendants appeared and demurred to the bill. And at the June term of the Circuit court, the cause came on to be heard, when by consent of counsel, it was ordered by the court, that the cause be submitted to the court to decide on the demurrer, the order of the court to be entered in vacation as of the last day of this term.</p> <p>And afterwards, to wit: on the 4th of August 1871, a ■decree was entered of record in vacation, by order of the judge of said court. After referring to the order made by consent at the previous term; and bringing on the cause as on the 20th day of July, the court sustained the demurrer, dissolved the injunction which had been •granted to the plaintiffs, and dismissed the bill with ■coste. And thereupon the plaintiffs applied to a judge ©f this court foi an appeal; which was allowed.</p>

In January 1868 Marcellus M. Morris instituted a suit in equity in the Circuit court of Albemarle county against James C. Childress, adm’r of James Brady, deceased, and James W. Mason and Daniel J. Hartsook, his sureties in his official bond, to recover th4 amount of a note of Brady, which the plaintiff alleged Childress had promised to pay. Childress and Hartsook appeared, and each demurred and answered separately.

In April 1854 Samuel Brannaman purchased from Tilomas J. Michie, trustee, a tract of land in Augusta •county, containing about ninety-eight acres, for which. he paid to Michie $2,456.25. He went to live upon the land, and built a barn and corn-crib upon it. In October 1862 Brannaman sold this land to ¥m. H. Tams. The article of agreement for the sale is dated the 1st of October 1862, though it was probably ante-dated a few days.

This was a suit in equity in the Circuit court of Rockingham county, brought in May 1867, by John W. Stern and Josephine, his wife, against Jacob Lincoln and Abraham Lincoln, as administrators of B. R. Lincoln, deceased, to have a settlement of the account of B. R. Lincoln, who the plaintiffs alleged had been guardian of the plaintiff, Josephine, who before her marriage was Josephine Lincoln, the daughter of Preston Lincoln, deceased.

<p>The case is fully stated in the opinion of Christian, J.</p>

<p>' In March 1858, John Oraun and others, creditors by judgment of Benjamin Weller, filed their bill in the Circuit court of Augusta county, against said Weller and his wife, Hugh W. Sheftey, trustee in a deed executed to him by Weller and wife, and the creditors secured by said deed, and others, in which, after setting out their judgments, and the said deed of trust, they state that their judgment liens have priority of the said deed; and they charge that it is fraudulent - as to them ; that all the personal property of said Weller had been sold under executions issued upon former judgments; and that the rents of his real estate would not pay oft’ the judgments against him in five years. They, therefore, pray for a sale of the real estate of Weller, and the application of the proceeds of sale to the satisfaction of their debts, and for general relief.</p> <p>The process was served on Weller and the other defendants ; and in June 1858, he filed his answer. He admitted the plaintiffs’ claims, and that all his personal property had been sold by the sheriff. He admits that he is the owner of four hundred acres of valuable land, which he had conveyed to Sheffey in trust to secure his creditors, and among others, the plaintiffs. He says, what reasons the plaintiffs have for all their captious objections and criticism he is at a loss to conceive, when all they had to do was to say they disclaimed the provisions of the deed, and asked for the enforcement of their original liens; and if that be their position he might object to their bill for multifariousness. But waiving all technical objections, and being sincerely anxious that his property shall as soon as practicable, be made available to the payment of his debts, he will set up no objections to a decree for the prompt sale of his property, only asking that it may be sold on liberal terms as to credit, and that it may he sold all together or in two parcels as may be deemed most advisable.</p> <p>The cause came on to be heard on the 19th of June 1858, when, with the consent of the defendant Weller, by his counsel, and of the trustee Sheffey, in person, the court made a decree appointing commissioners to sell the tract of four hundred acres of land, as a whole or in parcels, as upon consultation-with the parties interested, they might deem most advisable, upon the terms of cash for enough to cover expenses, and for the balance of the purchase money upon a credit of one, two and three years.</p> <p>And in order that the. cause might be ready, at as early a day as practicable, a commissioner of the court was directed to ascertain, state and report an account of the debts and their priorities chargeable on the proceeds of such sale. And he was authorized to proceed upon four weeks publication, &c.</p> <p>The commissioners made a report of the sale of the r . land, shewing the purchase money, after deducting the expenses of sale, amounted to $12,200.27. And 'Weller filed a petition seeking to set the sale aside on the Sround of inadequacy of price. But it was eventually confirmed; and two lots in Mount Sidney were directed to he sold.</p> <p>In November 1859 commissioner Harrison returned his first report; and the debts reported by him as binding the fund, amounted with interest to the date of his report, to $12,145.49. To this report there were two exceptions ; and the court’ without passing upon them recommitted the report to the commissioner to state and report on such other matters as might be pertinent to the case.</p> <p>The commissioner made another report, which was recommitted for the purpose expressed in the previous order. And he then made a third report. This last report increases the amount of the liens, previous to the deed of trust to Sheffey, to $16,531.56; and the whole available assets according to one statement are $13,163.32, and according to another $13,076.21.</p> <p>There seems to have been no further proceedings in the cause until the 12th of June 1863, when the plaintiffs filed a petition, in which they state that Lemuel "Weller, the son of Benjamin* "Weller, had died intestate owning a tract of land in Augusta county, and leaving a widow and two infant children; that these children had since died, under the age of twenty-one years, and that Benjamin "Weller had thus become entitled to the land; and the same was liable to the lien of their judgments. That the widow of Lemuel Weller was entitled to dower in the land, and the wife of Benjamin "Weller to a contingent right of dower. That the rent of the land would not pay the debts in five years; and they therefore ask that the said land may be sold; that if the said widow of Lemuel Weller will not consent that her dower may be sold, and she paid its commuted value, that her dower in kind may be laid off’ to Her. And they ask that she may be summoned to show cause, if any she can, why the said prayer should not he granted.</p> <p>The summons was issued, and Mrs. Lemuel Weller appeared and filed her answer, stating that she elected to have her dower in the land assigned to her.</p> <p>The cause came on again to be heard on the 15th of June 1863, when the court made a decree appointing commissioners to lay off Mrs. Lemuel Weller’s clower, and appointing other commissioners to sell the land subject to her dower, upon a credit of one and two years ; but with the privilege on the part of the purchaser, of paying the whole purchase money in cash, upon the confirmation of the sale by the court. And Mrs. Benjamin Weller was authorized to relinquish her contingent right of dower in the land, and to receive therefor its commuted value; which she did.</p> <p>The commissioners to lay off the dower, and those to make the sale, made their reports. It appeared from the report of the latter that the land had been sold as prescribed in the decree, and that James W. Crawford became the purchaser of the land at the price of $22,610; and elected to pay the whole purchase money in cash.</p> <p>The commissioners appointed to sell two lots in Mount Sidney also reported, that they had sold the same for cash'to Osborn L. Boss, for $2,560.</p> <p>The cause came on again to be heard on the 4th of November 1863, when the court made a decree confirming the reports and directing the purchasers, after paying the commissioners the costs and expenses of sale, to pay the whole of the purchase money due from them into the Central Bank of Virginia as the general rece*ver °*' court, to the credit of the cause. And when the purchase money was fully paid the commissioners W^° S0^ same’0or auJ one ^emJ should convey the same to them respectively, or to such persons as they might direct, by proper deeds, with special warranty. And the court not at this time considering the reports made by master commissioner Harrison, and it being suggested that there were other liens not yet reported on, recommitted the same to him or some one of the commissioners of the court, with instructions to convene all persons in intei’est before him, hy advertisement &c., and ascertain the amount of all liens on the property of the defendant Weller, whether created by mortgage, trust, judgment or otherwise, as also the commuted value of the contingent right of dower of Catharine Weller, wife of said Benjamin Weller, in the land sold, and report the same to the court.</p> <p>Upon the confirmation of the reports of the sales to Crawford and Boss, they immediately paid' to the general receiver the purchase money of the property purchased by them, and the commissioners executed deeds for the property; conveying the property purchased by Crawford to him, and F. M. Young, who was interested with him in the purchase. Crawford and Young in March 1866 sold and conveyed the land to A. P. Beirne for $6,650, and in May 1866 Beirne sold and conveyed it to George K. and John G. Boag. _</p> <p>Uothing further, seems to have been done in th^s suit until July 1866, when Benjamin Weller filed his petition in the cause, in which he represents himself as a citizen of Barbour county in West Virginia. He states the execution of his deed of trust to Sheffey, the institution of the suit by Craun and others against him, the proceedings in the case, and his petition to have the first sale made set aside ; and says that from the time of the ■confirmation of that sale in July 1859, he was without counsel to attend to his interest in the cause ; and in the month of October 1859 he removed from the county of Augusta to Barbour county, in West Virginia, where he has resided ever since ; and owing to the unsettled condition of the country and the impossibility of passing through the enemies lines, could not know what progress, if any, was made in said cause. He states the death of his son Lemuel Weller in 1862, and shortly thereafter his children ; and in the spring of 1864 his widow also departed this life. He refers to the decree for the sale of the land, and the sale, its confirmation by the court, the payment of the purchase money and the conveyance to the purchaser; and also the sale and the confirmation thereof, and the conveyance of the lots in Mount Sidney ; and the failure of the court to act upon the report of master commissioner Harrison. And he insists that the decree directing the sale of the tract of land and the Mount Sidney property are erroneous ; and as grounds of error assigns the following:</p> <p>1st. An account should have been taken of the amounts of the debts against him, and of the fund arising from the sale of property; and it should appear by some action of the court, that the fund already created was insufficient to pay the debts.</p> <p>2d. If it had been ascertained that a balance was still due from him, time should have been given him to redeem -r and only upon his default should his property have heen sold.</p> <p>3d. There was no proof that the rents and profits of the land would not satisfy the judgments in five years.</p> <p>' 4th. The property should not have been sold, and Confederate notes received in discharge of the purchase money.</p> <p>5th. The decree for the sale of the land cannot stand. The Pe®ioner was living in West Virginia, cut off by the war from all communications by mail or otherwise ; he had no knowledge of any proceeding against said land, or that there had been a decree for a sale' or a sale ^iere°f> until the fall of 1864. He was no party to the proceedings by which it was sold. It descended to him long after the bill was filed, and of course was not put in issue by it; and he was not made a party by the petition filed against the widow of his son Lemuel. Ho supplemental bill was filed against him; no order of publication, and no notice served upon him. Having been no party to the record, so far as it sought to subject said land to sale, he cannot be bound by the decree.</p> <p>Lor these and other reasons that may occur to the court, he práys that the said decree may be reversed, and that the sales of the land and the Mount Sidney lots may be set aside and annulled. And if the court should be of opinion that a bill of review is the proper mode of proceeding, he asks that his petition may be so treated, and that he may be permitted to amend it and make all proper parties, and have all and every relief to which he might he entitled under any form of pleading.</p> <p>In December 1866 the court gave Weller leave to file a cross bill in the cause; and upon his motion it was ordered that his petition be taken as such, and that James W. Crawford and L. M. Young, and the plaintiffs, be made parties to it.</p> <p>Crawford and Young answered, averring their ignorance of any thing which could injuriously affect their rights under their purchase; that they had, in pursuance of the decree confirming the sale, paid the purchase money, and obtained a conveyance of the land; had been put in possession of it, and held it until about the 1st of March, 1866, when it was sold and conveyed by them to Beirne for $6,650; who had since sold it to George K. and John G. Boag. And they insist that as they have been in no default and bave been guilty of no impropriety or even of any irregularity, they are entitled to be protected, whoever else may suffer.</p> <p>In March 1868 the cause was removed to the Circuit court of Rockingham county, and came on to be finally heard in the following June, when the court held that there was error in the decree for the sale of the tract of land in the proceedings mentioned, and that the error was apparent on the face of the record of the cause, and decreed that the decree of the 15th of June, 1863, directing a sale of said land, and so much of the decree of the 4th of November 1863 as confirms the sale and directs a deed to be executed for the same, be set aside and annulled. And a commissioner was directed to take the account directed by the decree of November 4th, 1863. From this decree Crawford and Young obtained an appeal to this court.</p>

In March. 1860 Kent, Paine and Kent, David Sexton and a number of others, creditors by judgment of Stephen S. Crockett andKobert J. Crockett, partners untbe style oí S. S. Crockett & Son, instituted a suit in equity in the Circuit court of Wythe county, against them and another, to subject certain real estate belonging to S. S. Crockett and son, to the satisfaction of their judgments.

<p>Jn June 3871, Magdaline M’D. Coffman instituted an ° action of assumpsit intne County court oí Rockingham, against Henry Forrer and Charles T. Clippinger, late partners under the name and style of Forrer & Clippin&er’ recover from them the sum of nine hundred and fifty dollars, with interest, for the rent of a store room and lot -in the town of Harrisonburg, due one half on the 12th of November 1870, and the other half on the 12th of May 1871. The process was served on both the defendants, and they appeared and pleaded “non assumpsit.”</p> <p>In January 1872, the cause being still pending in the county court, Henry Forrer and Mrs. Coffman entered into a written agreement, by which, after reciting that certain questions and disputes between Mrs. Coffman and Forrer & Clippinger have arisen and are now pending, in regard to the liability of the said firm of Forrer & Clippinger to the said Coffman for rent due and to become due, under an article of agreement entered into by them on the 18th of January 1868, in regard to the lease of certain property in the town of Harrisonburg, which said property was burned on the 25th of December 1870; and the said Henry Forrer having agreed, and hereby agreeing, to assume and pay any liability that may attach to the said firm of Forrer & Clippinger by virtue of said article of agreement, and desiring to surrender the said lease, and pay over to said M. M’D. Coffman, in cash, the'amount, if any thing, that may be due her upon the award to be made by the arbitrators hereinafter mentioned; therefore for the final ending all said questions and disputes, and deciding the same, the said Forrer and Coffman agieed that the matters'in controversy should be referred to the final award of Samuel Shacklett, J. Madison Irvin and W. C. Harrison, or any two of them, so as that they should make their award in writing under their hands and seals, ready to be delivered by the 25th of May 1872. And it was agreed that this submission should be entered on record in the county court of Rockingham, and that the award should be entered up as the judgment of said court.</p> <p>The arbitrators made their award, by which they awai’ded that Forrer should pay to Mrs. Coffman the sum of $2,817.73, with interest on $356,26, a part thereof, from the 12th of May 1671; on $475, another part thereof, from the 12th of November 1871, and on $1,986.47, the residue thereof, from the 12th of May 1872; and further that Forrer should deliver to said Coffman, immediate possession of the lot of ground mentioned in the submission.</p> <p>At the June term of the county court of Rocking-ham, on the motion of Mi's. Coffman, a rule was awarded upon Forrer to show cause why the award aforesaid should not be entered up as the judgment of the court. This rule was served on Forrer, who appeared; and the motion came on to be heard at the July term of the court; when the court rendered a judgment in favor of Mrs. Coffman against Forrer, in pursuance of the terms of the award. And Forrer excepted.</p> <p>By the agreement of the 13th of January 1868, Mrs. Coffman-rented to Forrer & Clippinger, for the term of five years commencing on the 12th of May 1870, and ending on the 11th day of May 1875, a store room and its appurtenances, and also all the rest of the lower story of the main building of said house, except, &c.; in consideration for which they agreed to pay to her an annual rent of nine hundred and fifty dollars, to be paid at the end of each successive six months of said lease; and they further bound themselves to make extensive specified improvements on the house at their costs. On the 25th of December 1870, the house was entirely consumed by fire, the lessees having paid the rent up to November 12th 1870</p> <p>The parties not agreeing as to the liability of Forrer & Clippinger to pay the rent after the house was consumed, the suit was brought by Mrs. Coffman against them; and the agreement for a submission of their matters to award, and the award was made as hereinbefore stated. As to the award it appeared in evidence, that it was prepared by the arbitrators and handed to the counsel of Mrs. Coffman hy one of the arbitrators on the 24th of May 1872, in the absence of the others. "When this was done, the word “ seal ” was not in the body of the instrument, and no seals were attached to their names ; and. on the next day the counsel returned it to the arbitrators with the request that they would affix seals to their names, and insert the words “ and seals ” in the body of the award; which was done by the arbitrators, who thereupon, all being present together, delivered the same to said counsel on the same day.</p> <p>The defendant proved by one of the arbitrators, that they intended to allow the plaintiff the whole amount of rent accruing after the 25th of December 1870 down to the determination of the lease, reduced to cash on the 12th of May 1872, subject to a credit of $400 a year from the date of the award to the termination of the lease in May 1875; in like manner reduced to cash on the 12th of May 1872 ; which credit was for the value of the surrender of the lease by Forrer to the plaintiff.</p> <p>And these being all the facts proved in the case, the defendant Forrer moved the court to set aside the award, and not to enter judgment upon it.</p> <p>1st. Because the original award as made, signed and delivered, was not made under seal, as required by the submission.</p> <p>2d. Because the award was not final, and did not dispose of a suit pending in the court, for part of the rent accrued after said 25th of December, 1870.</p> <p>3d. Because of apparent errors on its face, in allowing interest from a period anterior to the time the rent was due or to become due under the lease.</p> <p>4th. Because the rent accruing was reduced to cash by simple interest, instead of compound.</p> <p>5th. Because it is impossible, in requiring the surrender of the lease of Forrer & Clippinger by Henry Forrer.</p> <p>6th. Because the rule to show cause against the award issued in the action of assumpsit pending in the County court of Rockingham, for part of the rent, and because the court has no jurisdiction at a monthly term to enter the same.</p> <p>7th. Because the award was unjust and excessive.</p> <p>But the court overruled the motion to set aside the award; and as before stated, entered judgment thereon in favor of Mrs. Coffman against Forrer. And thereupon Forrer applied to the Circuit court of Rockingham for a writ of error and supersedeas to the judgment; which was refused : and he then made the like application to a judge of this court; which was allowed.</p>

Samuel V. Gatewood, of the county of Bath, died some time during the late war, seized of real estate in said county, and also in the county of Pocahontas in West Virginia. In his life time an action of debt had been instituted in the County court of Monroe county by the Bank of Virginia against Wm.

In April 1871 Calvin S. Campbell instituted a suit in equity in the Circuit court of Alleghany county, against Andrew J. Sively, to subject the lands of said Sively to satisfy a judgment which the plaintiff had recovered against Mm.

Peter WMtesel, of the county of Rockingham, died in the year 1864, leaving a will which was duly admitted to prohate in the County court of that county; and no executor being named in the will, his son Simon Whitesel, qualified as administrator with the will anexed.

<p>On the 12th of December 1871, the attorney for the Commonwealth in the corporation of Alexandria, filed an information against Samuel Day, that on the 11th of September, for the year 1871, in the city of Alexandria, Samuel Day, the keeper of an ordinary in said city, did in the said ordinary of him the said Samuel Day, in the city aforesaid, permit unlawful gaming, by permitting •divers persons there assembled, then and there to play at •cards, &c.</p> <p>Day having been summoned, appeared, and in his proper person, filed a plea of auterfois acquit. In his plea he set’s out in full the record of the previous information and the proceedings upon it. The only difference between the two informations is, that in the first he is charged as being the keeper of a house of entertaiment, and in the last he is charged as keeping an ordinary. In the first case he appeared, and he pleaded “not guilty,” and filed a demurrer to the information, which was over, ruled.</p> <p>The case came on to he tried on the 11th of Decern her, 1871, when the jury rendered a verdict in his fa- ' vour, and he was discharged by the court. And his plea averred that he was the same person and the offence was the same for which he had been before prosecuted.</p> <p>The attorney for the commonwealth demurred to the plea; and the court sustained the demurrer. And thereupon the defendant pleaded not guilty; and upon the trial there was a verdict against him; and the court adjudged that he should pay a fine of one hundred dollars- and costs; and that he should foi’feit his license and give bond for his good behaviour. And Day applied to this-court for a writ of error; which was allowed.</p>

<p>1. A jury of inquest find that the deceased was killed by J and the justice who acted as coroner, issues process, upon which J is committed to prison. The grandjury in the County court find an indictment against J. for murder, and he is brought into court and arraigned, and on his arraignment elects to be tried in the Circuit court. In the Circuit court J. moves to quash the indictment because he had not been sent before a'justice for examination ; and that motion being overruled, and the cause continued to the next term on his motion, he at the next term files a plea in abatement to the indictment, on the ground that he had not had the benefit of an examination before any justice of the peace or otherlegally authorized officer for commitment. To this plea the attorney for the commonwealth demurs, and the demurrer is sustained. Held :</p> <p>1. J. was not entitled to be sent before a justice for examination.</p> <p>2. Quíbre : If J was entitled to such an examination, he had not waived it, by electing to be tried in the Circuit court, and not making his motion until he was at the bar of that court.</p> <p>2. If a venire man has formed, and still more, if he has formed and expressed an opinion as to the guilt or innocence of the accused, no matter on what ground it was formed, whether from having heard the evidence on some former trial or examination, or from mere rumour or otherwise, he is an incompetent juror to try the case. If on the other hand, his opinion is merely hypothetical, he is not incompetent on that ground.</p> <p>3. If a venire man lias formed an opinion as to the guilt or innocence of the accused from having heard the evidence on a former trial or examination of the case, it would be difficult if not impossible to regard such opinion otherwise than as decided or substantial, within rhe meaning of the rule; and he would generally, if not always, be considered an incompetent juror, even though he might think and say that he could give the accused an impartial trial.</p> <p>4. If a venire man has formed an opinion of the guilt or innocence of the accused from mere rumour, the presumption, in the absence of evidence to the contrary, is, that such opinion is merely hypothetical; and will be so considered even though he speaks of it as a decided or substantial opinion, if he says he has no prejudice against the accused, ' . and thinks he can give him a fair and impartial trial. 'But ■ if the court be satisfied, either from the venire man’s own statement or otherwise, that the opinion is in fact decided or substantial, he will be an incompetent juror.</p> <p>5. In all cases great weight is justly due to the opinion of the court before whom the venire men are questioned and examined in regard to their competency as jurors.</p> <p>6. The testimony of witnesses examined before a jury of inquest, and committed to writing, cannot be used to impeach the evidence given on the trial of the prisoner, unless their attention has been called to it and to any discrepancies between that and their evidence.</p>

This was an information in tire Corporation court of the city of Alexandria filed in August 1872, against Alfred Speer, that on the 4th of August 1871, he, who was not at the time a resident merchant or manufacturer of this State, did by sample, card, description and other, representation, offer to sell in the city aforesaid, wines, brandies, goods, wares, and merchandise, without having first obtained the license therefor required by law.

<p>This is a writ of error to a judgment of the Circuit court of Pittsylvania county, affirming a judgment of the County court of said county, convicting the plaintiff in error of petit larceny, and sentencing him to imprisonment therefor in the county jail for the term of three months. The indictment was for stealing, taking; and carrying away, “ three beehives, of the value of five dollars; and three swarms of bees, of the value of three dollars; and forty pounds of honey of the value of five dollars; of the goods and chattels of one Yin-cent Shelton. The case was tried upon the plea of not guilty,” and the verdict of the jury was in these words: We, the jury find the defendant guilty, as charged in this indictment, and ascertain the term of his imprisonment in the county -jail to be three months.”' Whereupon the defendant moved the court to set aside the verdict and grant him a new trial. But the court not being advised of its judgment to be given, took time to consider thereof. On the next day the defendant moved the court to arrest the judgment for the following reasons:</p> <p>I. Because the jury, after being sworn Was charged, if they found the defendant guilty, to ascertain the term of imprisonment in the county jail, so that said term be not more than one year.</p> <p>H. Because the verdict is contrary to the statute in such case made and provided, because the jury had no right te fix the term of imprisonment in the county jail. The statute gives that power to the court in such cases. Code of 1860, p. 814, § 24.</p> <p>ITT. Because the indictment, as to the bees and^honey, therein named, does not set forth any offence, in this, that it is not stated whether the bees therein named, were wild bees or reclaimed bees,; nor whether they were honey bees; nor whether the honey was strained, (or liquid honey,) or honey comb ; nor whether it was honey made by honey bees, or reclaimed bees or not, or by wild bees.</p> <p>The fourth reason need not be stated, as no question arises upon it.</p> <p>The court having fully considered the motion for a new trial, and the motion in arrest of judgment, overruled the same; and ordered that the defendant be imprisoned in the county jail for- three months, the period ascertained by the jury, and that he pay the costs of the prosecution. This judgment of the County court was affirmed by the Circuit court, and to the judgment of the Circuit court, a writ of error was awarded by this court.</p>

<p>The case is fully stated by Judge Christian, iu his opinion.</p>

In January 1873, Henry Christian, a man of color, was indicted in the Corporation court of the city of Richmond, for this, that on the 26th day of September 1872, at&c., he did feloniously attempt to commit the crime of rape, by then and there attempting feloniously to carnally know one Martha Mallory, a female, then and there being over the age of twelve years, to wit: of the age of twenty-one years, against her will, by force, and that he, the said Henry Christian, did…

At the October term for 1872, of the County court of Scott county, Alexander Murphy was indictedior making an assault on John Murphy, with intent to maim, disable, disfigure and kill him. The indictment contains two counts. The first charged the assault with the felonious and malicious intent, in the usual form; and there was no doubt that it was a good count.