Volume 24 — Grattan's Virginia Reports

This is a writ of error to a judgment of the late District court held at Fredericksburg, affirming a judgment of the Circuit court of Essex county, rendered in favor of the defendant in error, the plaintiff in the said Circuit court, William E. Dozier, against the plaintiffs in error, the defendants in the said Circuit court, B. Bier and S. Mann, who, with Samuel Strooke and L. Bowman composed a partnership firm, trading in the; name and style of S. Strooke & Co. The action…

This case was argued at Staunton, at the last term of the court at that place, and was decided at the November term in Richmond.

At the August term for 1870, of the County court of Pittsylvania, William Leahy, who was sheriff of the county of Pittsylvania in the year 1870, was indicted for feloniously embezzling the moneys of the county, amounting to f9,413 29, which were under his care and management by virtue of his office of sheriff.

This case was argued at the last term of the court at Staunton, and was decided in Richmond at its present term. This was an action of covenant in the Circuit court of the county of Rockingham, brought in March 1860, by Eli Reran against Ezra and Solomon Burtner. The covenant sued on is a covenant of general warranty, in a deed bearing date the 21st day of January 1858, by which.

*In Hay 1866 Lewis Y. Yield brought an action on the case in the Circuit court of Culpeper, against John Brown and Y. T. Brown.

Samuel P. R. Moorman, of the county of Bedford, departed this life in October or November 1861, leaving surviving him, his widow and three children.

This case was argued at the last September term of the court in Staunton, and was decided at the present term in Richmond. It was an action of debt .iu the County court of Rockingham county, brought in September 1865, by James Kenney, trustee for A. C. Bryan, against Jacob P. Effinger, upon a bond for $7,067 70-100, executed by Effinger to Kenney for the last payment of a tract of land sold by Kenney as trustee of Bryan, and purchased by Effinger.

This case was argued in Staunton at the last September term of the court, and was decided in Richmond at the present term. It was an action of covenant brought in March 1870, in the Circuit court of Albemarle county, by George Rives against the administrator with the will annexed of Wm. P. Farish, deceased, to recover the amount of a bond of $12,000, executed to the plaintiff on the 1st of January 1864, by George L. Peyton, as principal, and William H. Peyton and Wm.

This was an action of debt in the Circuit court of Culpeper county, brought in February 1866, in the name of the Commonwealth, at the relation of Carter A. Saunders, against James O. Harris, late sheriff of said county, and Walter O’Bannon, Jacob S. Egborn and another as his sureties in his official bond, to recover the amount of an execution which issued upon a judgment recovered in the Circuit court of Culpeper county by the surviving partner of Thomas Hill & Co., for the…

In June 1871 John P. Poe, trustee for Mrs. Bradley T. Johnson, applied by bill to the judge of the Chancery court of the city of Richmond, for an injunction, to enjoin the city of Richmond from proceeding to widen Franklin street by extending its northern line so as to include a part of the lot held by him as trustee as aforesaid, lying between Jefferson and Madison streets, at the corner of the latter and Franklin street.

<p>1. The act of March 7, 1872, which repeals the act of March 30th, 1871, so far as it authorizes the issue of coupon bonds with coupons attached, receivable for taxes and other dues of the State, is constitutional so far as it applies to bonds not presented to the 2d auditor before the passage of the repealing act.</p>

These are applications to this court by Meredith, Terrell, Yates and Aglionby for a mandamus to Asa Rogers, the second auditor of the State of Virginia, to compel him to fund certain certificates of State stock held by them respectively.

In May 1872, Rudolph Turk, late sheriff’ of Augusta county, instituted an action of debt in the Circuit court of said county, against J. Crawford, J. Givens Pulton and John Seawright, upon a bond executed by them to him, with the condition — that whereas the above bound J. Crawford hath been appointed and admitted as one of the deputies in the office of sheriff of Augusta county, for the term beginning on the 1st day of January, 1859: How if the said J. Crawford, shall in…

In December 1863, Robert J. Smyth, by an agent, purchased of John R. Sutton of King and Queen county, his crop of corn, to be delivered at a certain landing on York river, on the 1st of February 1864, and to be paid for on delivery, at the price of $40 per bushel. Smyth, conducted a milling business inRichmond. He engaged a vessel to go for the corn, and sent bags in which to put it.

This was an action of debt in the Hustings court of the city of Lynchburg, and afterwards transferred to the Circuit court of the city, brought by James Magruder, assignee of S. O. Moon who was assignee of John T. Little against Charles J. Raine, Wm. A. Poore and three others, upon a bond for $8000 executed by the defendants to John T. Little, by him assigned to S. O. Moon and by Moon to the plaintiff.

This was an action of covenant in the Circuit court of Russell county, brought by Aaron H. Rash against A. W. Smith and nine other persons.

In July 1867 Temple D. Richardson obtained an injunction to stay a sale of a tract of land in the county of Appomattox, under a deed executed by himself to trustees, to secure a debt due to Samuel O. Moon.

John L. Shultice, of Fredericksburg, died in August 1849, having made a will in October 1846, which was duly admitted to probate.

In July 1870 William W. McClung, administrator with the will annexed of Sally P. Rodes, deceased, filed his bill in the Circuit court of Nelson county against James E. Rodes, William L. Williams, himself, and James M. Harris, executor of Charles Rodes, deceased, in which he set out that John H. Rodes, of that county, died leaving a will, by which he gave to his widow, the testatrix of the plaintiff, for her life, the land on which he lived, and another tract, and also…

Nathaniel Wilson, late of Pittsylvania county , departed this life in 1857, having made his will, which was duly admitted to probate in… Held: used, possessed, enjoyed, managed and controlled at her entire discretion, the whole of the residue of my estate, both real and personal, of ever nature or kind, subject however to the exceptions and bequests herein after mentioned: but as my chil- ^ u J dren, George, Ann Eliza, Nathaniel, Virginia, Indiana, Winefred, Maria Louiza…

By bond bearing date the 26th of March 1852, Anna Seigfried promised to pay to Anne C. Morris, guardian of James M. Morris, two thousand dollars, months after the date thereof, with interest from the date. And by a- deed dated on the next day, she conveyed to Wm. F. Gordon and Wm. J. Robinson, a tract oí land containing seven hundred and five acres, upon trust to secure the payment of said debt.

In June 1854 Wm. T. Hendren was elected sergeant of the city of Norfolk, for three years; and on the 29th of the same month he executed his official bond in the penalty of $30,000, that being the amount fixed by the court; with J. Hendren, J. Hardy Hendren and three-others as his sureties.

This was an action of debt in the circuit court of the city of Richmond, brought in April 1869 by 'W- A. Stuart against the James River & Kanawha Company, to recover the sum of $15,000, the amount of a certain bond of the State of Virginia, which was issued to the James River & Kanawha Company; and the interest thereon.

In February 1855 David W. Davis, of Greene county, departed this life intestate, leaving his wife surviving him, and one child, Thomas Davis, of three or four years of age. In Eovember 1857 the Circuit court of Greene county “ sitting in chancery,” appointed Isaac B. Davis guardian of Thomas Davis, and Mrs. Davis seems to have married, on or about that year, E. K. Durrett; her dower in the estate of her first husband not having been assigned to her.

<p>1. The holder of bonds of the State issued before the war to the Kanawha Board of the James Biver and Kanawha Company, under § 9 of the act of March 23d, 1860, is entitled to have them transferred upon the books of the 2d auditor, and funded under the provisions of the act of March 30, 1871, as amended by the repealing clause of the act of March 7, 1872, entitled an act declaring what shall be received in payment of taxes, &c.</p> <p>2. The proceeding by mandamus is the proper proceeding to compel the 2d auditor to transfer and fund said bonds; his act in doing so being merely ministerial.</p> <p>3. The act of March 18,1862, passed by the Bichmond Government, in relation to said bonds, was temporary in its character, and has been repealed by implication.</p>

This is a supersedeas to a judgment of the Circuit court of Greene county, rendered on the 18th day of June 1873, on a motion made by the plaintiff in error, Beasley, against the defendants in error, Robinson, and his surviving sureties as late sheriff of said county, for certain sums of money, directed by the County court of said county to be paid by said sheriff to said Beasley, out of the levy of said county.

This was a proceeding of unlawful detainer in the Corporation court of Petersburg, instituted by D’Arcy Paul and others against James Allen and others, to recover the possession of a lot and buildings thereon called “the Union street Methodist church.” Upon the trial of the case, it appeared that by a deed executed in August, 1818, a part of the lot had been conveyed to certain persons styled trustees of the Methodist Episcopal church in the Town of Petersburg, and to the…

In January 1859 Samuel H. Quarles, who had been high sheriff of the county of Bedford, conveyed to Henry C. Dickinson and another two tracts of land and a number of slaves, in trust to indemnify Thomas M. Jones, Tandy E. Jones, Thomas II. Helson and three others, his sureties in his official bond as sheriff. There being some difficulty as to the existence of liens on the land, Dickinson, in February 1860, filed his bill in the.

<p>Before the war B had sold and conveyed to E a tract of land at the price of $5.60 per acre, for which on the 2d of December-1862 E owed B $700. On that day E entered into a covenant with S, by which he covenants to convey to S a certain part of the land, between thirty and forty acres, if S will advance the $7C0 to pay B, and allow E three years to repay S the $700 after-deducting the price of that part cut off for S. And if E shall fail to pay S the full amount, principal and interest, advanced by S for E, to pay for the portion retained by him, then E, binds himself to convey title to the residue of said tract to S_ S pays B the $700, B receiving it in Confederate money. At. the time of this agreement the land was estimated by witnesses to be worth $15 per acre in Confederate money. E does not-pay the money or any part of it in three years. Held :</p> <p>1. The contract is not a conditional sale, but a mortgage.</p> <p>2. The contract is not usurious.</p> <p>3. It is a Confederate, contract; and the {mount due is to b© scaled as of the date of the contract.</p>

William Shepherd, of the county of Orange, died in the year 1825, leaving a will, which was duly admitted to probate, and James Shepherd and [Reynolds Chapman qualified as executors, giving separate bonds. William Shepherd had no family of his own, and he bequeathed his estate to his brothers and sisters, and the children of those who were dead; and these were numerous when this suit was instituted.

<p>Wills—Construction.—o married M who owned fifty shares of Gloyer Hill railroad stock. By a resolution of the company the fifty shares is made seventy, and a certificate for the whole islssned to O. O having-no children, makes his will, and after giving to his wife his whole estate for her life, says, “f give to her in fee her Clover Hill stock." IIkTjD: Looking to all the provisions of the will and the surrounding circumstances, M took the seventy shares of stock.</p>

<p>O married M who owned fifty shares of Clover Hill railroad stock. By a resolution of the company the fifty shares is made seventy, and a certificate for the whole is issued to O. O having no children, makes his will, and after giving to his wife his whole estate for her life, says, “I give to her in fee her Clover Hill stock.” Held : Looking to all the provisions of the will and the surrounding circumstances, M took the seventy shares of stock.</p>

This was a Bill filed by James Hunter’s ex’x to enjoin the sale of certain real estate in the city of Richmond, purchased by said Hunter of M. Wells, in July 1862, and upon which Wells had executed a deed of trust to Powhatan Roberts and Wm. H. Macfarland in March 1859, to secure a debt due toB.B. Vaughan.

<p>I have this day borrowed of Mrs. P. five thousand dollars, in? stock of the State of Ya., on which interest is payable semi-annually; and for the repayment of the same, with the accruing' interest, I bind myself, my heirs, &e. Witness, &e. K. The stock was borrowed to be converted into money, and was sold in November for $4,755. Held: P is entitled to the value of the stock at the time of the loan.</p>

Ia April 1860 Travis T. Broocks, administrator of John G. E. Gary, deceased, instituted a suit in equity in the Circuit court of the city of Petersburg, against James Chieves and Edmund II. Osborne.

<p>1. By bond dated July 7th 1863, B promises to pay to IV, three years after date, $2,000 without interest, in funds current in the State of Virginia, being money borrowed. Held:</p> <p>1. Parol evidence is admissible to prove the consideration of the bond and the character of the contract.</p> <p>2. Piie evidence showing that it was a contract of hazard, and that the parties contemplated the possibility, though not the probability, of the failure of the Confederacy, and 'intended that the bond should be discharged in the currency in use when it fell due, IV is entitled to recover the value of $2,000 in the United States currency then in use in Virginia on the day it fell due, with interest from that date, and no more.</p>

Ia 1841 John S. Burwell, of Franklin county, was largely indebted, and among other debts he owed there was a note discounted at a bank in Danville for about $10,000, on which there were a number of endorsers. On the 2d of October of that year he made a deed, by which he conveyed a large tract of land on which he lived, some slaves and other personal property, to Moses G-. Carper, in trust to secure these endorsers.

<p>In 1847 A conveyed to C a tract of land in Fauquier county in trust for his wife forlife, and at her death to be sold and the proceeds divided among their children. In 1854 A died; and his son J having qualified as guardian of the younger children, in his own right and as such guardian, filed a hill in the Circuit court of Fauquier for á sale of the land, and investment of the proceeds in ether land. In 1855 there was a decree for a sale, and a sale, which was confirmed. Afterwards Mrs. A and her children filed a petition in the suit, stating that J had purchased a tract of land in Culpeper, for the benefit of the liarties to the trust, and asking the court to approve the investment and direct the proceeds of the Fauquier laud to he applied to pay for it. This the court did; and appointing J the sole trustee, decreed that when the whole purchase money was paid, J should take a conveyance to himself of the Culpeper land, upon the trusts declared in the deed of A. The land in Culpeper had been sold under a decree of the Circuit court of that county, and J purchased in his own name, and there was nothing in the record in that case to show it was intended to,be for the cestuis que trust of A's deed; hut the proceeds of the sale of the Fauquier land were applied to pay for it, and all the purchase money was paid, except less than §100; hut no deed was ever directed or made to J. In 1859 Mrs. A and J covenanted that she should convey to him her life estate in said land, on terms stated, hut which he did not comply with in any respect. In 1S03 J sold and conveyed the land to T, and T afterwards sold it to B. In 18C6 Mrs. A and her children filed their petition and cross hill in the Culpeper suit, stating the facts and claiming the land, and made J, T, and B parties. T and B claimed to he purchasers for value without notice. Held :</p> <p>1. Mrs. A and her children claiming under the decree of the Circuit court of Fauquier, the case does not come within the operation of the registry act, Code of 1360, ch. 119, §§ 4 and 5; and the decree not necessary to be recorded in Culpeper to protect them against the claim of T and B, claiming to be purchasers for value without notice.</p> <p>2. Nor is the decree of the Fauquier court such a decree as is required to be recorded by the 1st and Sth sections of ch. 186, Code of 1860.</p> <p>3. Nor does the 5th section of said ch. 186, which requires a Us pendens to be recorded, apply to the decree in the Fauquier suit.</p> <p>4. The equity of Mrs. A and her children being prior in time to that of T and B, A &c. are entitled to the Culpeper land, as against them, though they purchased bona fide for value, and without any notice of A’s equity.</p> <p>5. For the principles applicable to the doctrine of purchaser for value without notice, see the opinion of Christian J.</p>

In October 1862 Franklin Stearns sold to C. R. Mason certain real estate near the city of Richmond known as Stearns’ distillery, for the price of $60,000. Of this sum $35,000 was paid at the time of the purchase in Confederate States treasury notes; and Mason executed to Stearns his two bonds dated the 24th of October 1862, each for the sum of $12,500, payable, one in one and the other in two years, “in current money of Virginia,” with legal interest from the date.

This was an. action on the case in the Circuit court of the city of Richmond, brought in February 1866, by Mrs. M. S. Atwood, widow and administratrix of Dr. A. H. Atwood, deceased, against the Mutual Benefit Life Insurance Company of Newark, New Jersey, upon a policy of insurance upon the life of Dr. Atwood, for $2,600.

This was an action of ejectment in the Circuit court of Culpeper county, brought in October 1867 by T. J. Twyman, trustee of Eliza W. Elint, against Charles M. Hawley, to recover a tract of nineteen acres of land. The cause came on to be tried in December 1869, when the defendant demurred to the evidence, and the court sustained the demurrer, and rendered a judgment in his-favor.

In May 1870 T. J. Twyman, trustee of Eliza W. Flint, brought an action of ejectment in the Circuit court of Culpeper against Charles M. Hawley, to recover a tract of land in the county. The declaration states that the plaintiff was possessed in fee simple, as trustee as aforesaid, of a certain tract or parcel of land, &c., and describes it as bounded by certain roads, describing them, and by the lands of certain named persons, and as containing nineteen acres and eight poles.

On the 18th of February 1869 Snowden C. Hall, S. S. Fahnestock and William Thomas entered into an agreement under seal, by which Hall sold to the other parties a tract of land in the county of Stafford, containing sixteen hundred acres; upon terms stated in the agreement. On the 13th of March 1869 the said Snowden C. Hall and Westel Willoughby entered into an agreement under seal, by which Hall sold to Willoughby the same-tract of land.

This was an action of assumpsit in the Corporation court of the city of Norfolk, brought in April 1870, by Henrietta Hendren, against the New York Life Insurance Company, to recover the sum of $>5,000, the amount insured by the said company upon the life of her husband William T. Hendren, for her benefit. The defendant demurred to the declaration, and the joined in the demurrer, and the defendant also pleaded non assumpsit, and had leave to file special pleas.

In August 1866 R. M. and. Wm. W. Smith executed to Thomas Smith their bond for $5,000, with Wm. SSL. Watts, G. W. Gretter and R. H. Dibrell as their sureties.

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

Iu February 1873 William J. Anable was indicted in the Hustings court of the city of Richmond for the larceny of a cheek drawn by J. H. White, upon the Planters National Rank, to the order of E. B. Newburn, and endorsed by Uewburn. The indictment is fully set out in the opinion of Judge Christian.

At the April term 1873 of the Corporation court of Danville, Christopher Craft was indicted for the murder of William Jeffries. At that term of the court his case was continued, on his motion, to the July term, and at the July term, on the motion of the attorney for the Commonwealth, it was continued until August.

In August 1872 Washington Bead was brought before-J. J. Jackson, a justice of the peace for Charlotte county,, upon a charge of receiving three hundred pounds of tobacco, of the value of thirty dollars, the property of G. B. Hannah. Upon the hearing of the case, the justice sentenced the prisoner to receive thirty-nine lashes, and to be imprisoned in the county jail for three months.

At the July term 1873, of the Hustings court of the city of Richmond, an indictment was sent to the grand jury against John S. Meredith, Wm. L. Royall, Wm. R. Trigg and Wm. B. Tabb, for the murder of John B. Mordecai; and Dr. J. G. Dorsay Cullen was sworn and sent with other witnesses to the grand jury to testify in relation to the case.

At the June term 1873, of the Hustings court of the •city of Richmond, Horace Venable was indicted for the murder of Mary Holmes. He was tried at the same term • of the court, and the jury found him guilty of murder in the first degree; and the court sentenced him to be hung. From this judgment he applied for and obtained .a writ of error and supersedeas from this court.

At the November term 1873 of the County court of Chesterfield, the grand jury found an indictment against Henry Randall, that “ on the 23d day of August 1873, in the county aforesaid, with malice aforethought, in and upon one J. S. Moore, the said Henry Randall, being then and there armed with a dangerous weapon called a pistol, did then and there unlawfully shoot and wound him the said J. S. Moore, with intent him the said J. S. Moore, with set purpose and malice…

At the July term of the County court of' Halifax, Wilson Boxley, colored, was indicted for a rape upon Martha H. Spencer. At the same term of the court he was brought to the bar, and being arraigned pleaded not guilty, and on his motion the case was continued. He was thereupon remanded to the Circuit court of the county for trial at its September term; and on his motion he was allowed to give bail for his appearance at the Circuit court.

<p>1. An indictment for murder against T and B contains two counts : the second charges T as principal and B as accessory before the fact; and on the motion of T the second count is struck out. At a subsequent term on the trial of T the clerk reads both counts and charges the jury on both; and then the prisoner excepts. Tlie court then directs the clerk to read the first count, which is done, and the clerk charges tlie jury upon it; and then the prisoner excepts to the second reading and charge. The second reading and charge was proper, and cures the error of the first.</p> <p>2. The clerk in his charge .did not charge the jury as to tlie different grades of homicide. The indictment being for murder in the first degree by poison, the prisoner was either guilty of that ' offence or guilty of no offence which could he punished under the indictment; and therefore it was sufficient to charge the jury to that effect,</p> <p>3. There is no law requiring the clerk to charge the jury as to the different grades of homicide in any case; and his charge is without authority and nothing, except so far as it may he considered as having received the sanction of the court, and thus become the act of the court.</p> <p>4. The jury find the prisoner guilty of murder in the first degree, as charged in tlie indictment, without mentioning her name; but in tlie verdict, as recorded and read to the jury, tlie name is inserted. The verdict is sufficient.</p> <p>5. In an indictment for murder by poison it is not necessary to-state that the accused knew the substance alleged to have been used in producing death was a deadly poison.</p> <p>6. An accessory before the fact to a felony cannot be convicted on an indictment against him as principal.</p> <p>7. On an indictment for murder bjr poison, to an enquiry by the jury whether, if they believed from the evidence that the prisoner did administer the poison with intent to kill her husband, and that he died from it, can we find her guilty of anything less than murder in the first degree? The answer must be in the negative.</p> <p>8. To the enquiry of (he jury the court replies : If, &c., that she did in person, or through the agency of another acting under her directions, administer poison to her husband, and that she did intend thereby to kill him, and that he did actually die therefrom, the law presumes malice, and you ought to find her guilty of murder in the first degree; if you do not thus believe you will find her not guilty. There was in fact no evidence before the jury of the agency of another in the act, and the prisoner made no objection to the instruction at the time, nor a motion for a new trial, nor was it assigned as error in this court; yet if the instruction -was erroneous and could have prejudiced the prisoner, she will be allowed the benefit of it in this court.</p> <p>9. If the court, in referring to the agency of another, intended to say to the jury that an accessory before the fact to murder might be convicted on an indictment against him as principal, it was error. If the court intended the presence of the prisoner at the time of the commission of the offence through such agency, then it was not error.</p> <p>10. It is obvious from all the evidence in the cause that the prisoner could not have been injured by the instruction, though taken in the first sense ; and therefore no objection or exception having been taken when the instruction was given, it affords no ground for reversing the judgment and ordering a new trial.</p>