Volume 26 — Virginia Reports

<p>This was an action of assumpsit in the Circuit court of the city of Richmond, brought in May 1878, by the Western Union Telegraph Company against the city of Richmond, to recover the sum of one hundred and twenty-five dollars, the amount of a license tax which the company had been compelled to pay to the city of Richmond. The only questions in the cause were, whether the company could be subjected to pay a license tax to the city under the laws and constitutions of the state of Virginia and of the United States, and whether corporations were included in the terms of the city ordinance.</p> <p>The Western Union Telegraph Company is a corporation chartered by the legislature of the state of ÍÑTew York, and has an office and transacts business in the city of Richmond. The ordinance of the city classified telegraph companies, and this company was placed in the third class, and the .tax on the companies in this class was fixed by the ordinance at one hundred and twenty-five dollars. This tax the agent of the company refused to pay, until the property of the company was levied on by the officer, when he paid it under protest. The case was submitted to the decisión of the judge without a jury, and he rendered a judgment in favor of the city. And thereupon the company applied to this court for a writ of error; which was awarded. The laws and ordinances, as well as the facts, are sufficiently stated in the opinion' of Staples, J.</p>

By an agreement under seal, bearing date the 19th of January 1863, B. B. Bolling, in consideration of the sum of seventy-seven thousand dollars, sold to G-ustavus Lersner bis estate in the county of Fauquier, called Bollingbrook, containing seven hundred and sixty-nine acres, and bound himself, upon payment of the purchase money, to convey the same to Lersner by deed with general warranty.

This was a bill filed in the Circuit court of Norfolk •county by George T. Wallace, to injoin a judgment which had been recovered against him by L.. V. Richmond, as assignee of E. Richmond.

<p>This was a suit in equity in the Circuit court of Culpeper county, instituted in October 1869 by Rixey & Starke, merchants and partners, and as such judgment creditors of Williamson C. George, to subject certain real estate of George to satisfy their judgments. The defendants, beside George, were creditors claiming under a deed of trust from him to secure their ■debts, and other judgment creditors of said George; and as the property was not sufficient to pay all the debts, the question in the cause was as to the respective priorities of the creditors.</p> <p>It appears that Rixey & Starke recovered their judgments against George in November 1860, and that they were docketed on the 11th of December 1868. Wm. B. Wayland and three others recovered judgments in March 1861; and they were docketed on the 11th of December 1865. A number of judgments were recovered by other parties in May, June and November of the same year, and they were docketed on the 3d and 9th of November 1865. And still other judgments were recovered subsequent to these last, and were docketed in December 1865 and in 1866.</p> <p>The deed of trust from George to John C. Turner bears date the 21st of November 1865, and was acknowledged before a justice of the peace of Albemarle county, where the trustee lived, on the 23d of the same month; and it was delivered to the clerk of Culpeper to be recorded, but not being stamped, and the tax upon it and the fees for recording not having been paid, the clerk did not consider it as an office paper ■on record until the 6th of November 1867, when being made perfect in these respects it was recorded.</p> <p>When the cause came on to be heard, the court held that the creditors by judgments were to be paid in the Qrder of the .date of their judgments, and that the creditoi’s claiming under the deed of trust were to be postponed to all the judgment creditors. And at a subsequent day a decree was made appointing commissioners to sell the land. And thereupon E. B. Hill, one of the creditors claiming under the deed, applied to this court for an appeal; which was allowed.'</p>

By an ordinance of the council of the city of Richmond, it was ordained that on and after the first day of January 1874, no car, engine, carriage, or other vehicle of any kind, belonging to or used by the Richmond, Fredericksburg and Potomac Railroad Company, shall be drawn or propelled by steam upon that part of their railroad or railway track on Broad street east of Belvidere street in said city, under a penalty of not less than one hundred nor more than five hundred…

<p>This is a supplement to the case of Moran v. Brent als. reported in 25 Grattan 104. After the decree had been made in that case for the sale of the property, and Moran bad obtained an appeal from that decree, the Corporation court of Alexandria, in which the first decree was made, upon the petition of creditors of Moran who were parties in the suit, made a decree appointing the sergeant of the city the receiver of the court, and directing him to take possession of the real estate in the proceedings mentioned, and to rent it out and collect the rents, until the further order of the court ,&c. Prom this decree Moran applied to a judge of this court for an appeal; which was allowed.</p>

In Rovember 1870 Andrew Jenkins and Edward D. Eacbo filed their bill in the Chancery court of the city of Richmond against Eliza Cosby in her own right and as administratrix of A. J. Cosby, in which they set out that on the 29th of March 1869 one Andrew J. Cosby, of the city of Richmond, applied to said Eacho for a loan of $1000, which said Eacho loaned to him in good and legal currency of the United States; and that on the same day said Cosby executed a note payable to…

In May 1868 ¥m. S. Carter sold to Charles D. Mott a tract of land in the county of Pittsylvania, including one hundred and thirty-four acres, for which Mott executed to him his three bonds, dated the 25th of May 1863, each for $700, payable in one, two and three years, in current money of Virginia. Mott was put into possession of the land, and paid off the first bond within the year. Ho deed seems to have been made by Carter to Mott conveying the land to Mott. Wm.

<p>The ease is fully stated in the opinion of the court delivered by Moncure P.</p>

<p>The case is fully stated in the opinion of the court delivered by Judge Christian.</p>

<p>This was a suit in equity in the Circuit court of Appomattox county, brought in September 1871, by Richard Johnson and many others, heirs at law and next of kin of John H. Johnson deceased, against Albert Thornhill, his executor, Thomas S. Bocock and others, to set aside the last clause of a codicil to the will of the said John H. Johnson, deceased. The court made an order in the cause directing an issue devisavit vel non to be tried at its own bar, in which Thornhill the executor and Thomas S. Bocock, the legatee in the said clause of the codicil, should be plaintiffs, and the plaintiffs in the cause should be defendants.</p> <p>On the trial of the issue Albert Thornhill, the executor, was offered as a witness to support the will, security having been given for the payment of the costs; and he was objected to by the defendants in the issue, as incompetent on the ground that he was one of the plaintiffs, named as executor and qualified as such, and also interested in the suit. But the court overruled the objection and admitted the witness: and the defendants excepted.</p> <p>In the progress of the trial the defendants proposed to introduce James Gooding as a witness. His wife was one of the heirs at law of the testator, and they were plaintiffs in the suit; but they had executed an assignment of all their interest in the estate. The plaintiffs in the issue objected to him as a witness, on the grounds that he and his wife were parties and he was liable for costs: and the court excluded him: and the defendants excepted.</p> <p>After the evidence had been concluded the plaintiffs in the issue moved the court to give to the jury the following instructions:</p> <p>1. That the paper mentioned in the issue, in order to be the will of the testator, John H. Johnson, must be proved to have been executed by him when he was. of sound mind, according to the formalities prescribed by the statute, to wit: Must be proved to have been signed by him in the presence of the subscribing witnesses, and to have been attested by them in his presence and in the presence of each other, all being present together; and the burden of proving this is upon the plaintiffs in the issue, Albert Thornhill and Thomas S. Boeock.</p> <p>2. That the last clause of said paper, so far as it gives a beneficial interest to Thomas S. Boeock, must-be regarded as a testamentary bequest, and its validity tested by the laws of testamentary bequests, and not by the law of contracts.</p> <p>3. That if it be proved that Thomas S. Boeock, who wrote said paper, was at the time of such writing the attorney, of John H. Johnson, and is himself a large beneficiary under its provisions, this raises a suspicion against it, and makes it the duty of the jury to be vigilant and jealous in examining the evidence in its support. But if the suspicion, which such fact ought generally to excite, be removed; and if it be proved* that the said paper was prepared according to instructions freely and spontaneously given by the testator, and was distinctly read over to, and its purport understood by him after its preparation, then the jury may find that it is the true will of the testator; it being the law of the land that an attorney may take a benefit under the will of a client if no undue influence was exerted by him over the testator, and the will was not executed under any mistake or misapprehension.</p> <p>4. That if it be proved to the satisfaction of the jury, that the said John H. Johnson, for a number of years of his life, extending down to the execution of said paper, entertained a feeling of aversion and dislike for his relations, who would by law be his next of kin and heirs-at-law, and had a fixed purpose not to give them any part of his estate, then this fact is sufficient to rebut any presumption against said paper, arising merely from the fact that none of said relations are made beneficiaries therein.</p> <p>5. That unless the jury believe from the evidence that one or both of the propounders of the will, or somebody for him or them, induced the said Johnson to make said paper, or some provision thereof, by force, coercion, or by importunity which he (Johnson) could not resist, or procured the same by some other unfair means or practice, then the said paper cannot be held void on the ground of undue influence; it being the true interpretation of the law of wills that the influence to avoid a testamentary bequest must-amount to force or coercion, and impose on the testator a provision not in accordance with his own free, unbiased will.</p> <p>6. That neither sickness, old age, nor impaired intellect, even if the jury believe from the evidence that any one or all of them existed in this case, are sufficient to render void the provisions of said paper, or any of them; but if the jury also believe from the evidence that the testator at the time of executing the same “ was capable of recollecting the property he was about to dispose of, the manner of distributing it, and the objects of his bounty,” then they must find that he had legal capacity sufficient to make a valid disposition of his estate.</p> <p>7. And finally, if the jury believe from the evidence,. that the paper mentioned in the issue was signed and executed by the testator according to law, as set forth in the first instruction, that its several provisions were attested with the full consent of his will and understanding, uninfluenced by importunity and without any fraud practiced upon him by the propounders of the will, or either of them, or any other person, and that the testator had adequate testamentary capacity, then the said paper and all its provisions is the true will of said John H. Johnson, and it is the duty of the jury to find accordingly.</p> <p>And the defendants in the issue moved the court to give to the jury the following instructions, to wit:</p> <p>1. If the jury believe from the evidence, that on the 17th day of June 1867 Thomas S. Bocock was the sole professional adviser, as an attorney at law of John H. Johnson, and had been such for some years prior to said time, and was on that day employed in his said capacity of attorney and professional adviser to prepare a codicil to the will of said Johnson, which will he had previously prepared for him on the 18th „of February 1867, and did prepare the codicil to said will, which codicil is dated June 17, 1867, and was probated on the 9th day of August 1867, and that in the preparation of said codicil said Johnson had no aid from any other person than said Bocock, further than that Albert Thornhill, who is named as executor in the codicil, was present during its preparation, though not interfering in the matter beyond privately urging Bocock to write the bequest in his own favor when he saw Bocock hesitate to do it; and further, that when the preparation of the codicil was completed, and it was ready to be witnessed, William T. Pankey and James A. Agee, two neighbors, were called in to witness its execution, who read the codicil to him, and satisfied themselves that he understood it, and then duly attested it in his presence, and at his request then, although they believe that the decedent was competent to make a will, and did fully understand what he was about, and fully understand the contents of the codicil, and that the conduct of Bocock, the attorney, was fair, and his purposes honest, and that he did not designedly take, or conceive that he was taking, any advantage of his professional influence over his client, they must find that the bequest made under such circumstances to Bocock is contrary to the policy of the law and invalid, and that so much of said codicil as contains said bequest is not the true will and testament of John H. Johnson.</p> <p>2. The jury are instructed that, under the circumstances under which the codicil of June 17, 1867, to the will of John H. Johnson was made, as shown by the testimony of the witnesses for the plaintiffs in this issue, they are bound to presume that the bequest in said codicil, contained in favor of Thomas S. Bocock, was made under undue influence.</p> <p>8. The jury are instructed that as the testamentary disposition in favor of Thomas S. Bocock, made in the codicil of June 17, 1867, to the will of John H. Johnson, appears from the evidence in this case to have been formed in Johnson’s mind in the presence of said Bocock, and while he was actually employed as the attorney of said Johnson, in preparing the codicil to his-will, and while Johnson was without any competent independent advice, they are bound .to presume, from the relation of the parties, that the bequest to said Bocock was the offspring of undue influence; and even if the subsequent execution of the codicil, in the presence of the attesting witnesses, and the withdrawal at that time of Bocock from Johnson’s presence, and the other circumstances attending the execution, should satisfy the jury that this influence had been overcome by Johnson before the final execution of the codicil, yet when Bocock subsequently heard of the wish of Johnson to alter this clause of the codicil, and contented himself with merely writing the letter and accompanying papers of June 25th, 1867, he so far failed—no matter how honest his purposes—in that full discharge of his professional duty which the law exacts from an attorney in his circumstances as to render invalid the bequest in his favor.</p> <p>4. The jury are instructed that so much of the codicil of the 17th June, 1867, to the will of JohnH. Johnson, as makes a bequest to Thomas S. Bocock, having been prepared by the said Bqcock as the attorney and professional adviser of said Johnson, cannot, under the law of this court, be held as a part of the true last will and testament of said Johnson, unless it be found by them from the evidence, that in the making of so much of said codicil as makes said bequest, the said Johnson had the aid of independent advice from some eompetentthird party; and that the mere presence of Albert Thornhill, who was named as executor in the codicil, and whose only active intervention in making of said codicil was his privately urging on Bocock to write the bequest in his own favor, did not constitute or furnish such independent advice.</p> <p>5. The jury are instructed, that to enable the plaintiffs in this issue to sustain so much of said issue on their part as involves the validity of that clause of the codicil of June 17, 1867, to the will of John H. Johnson, which contains the bequest to Thomas S. Bocock, they must have shown from the evidence, to the satisfaction of the jury, that Johnson was not only competent to make a will and fully understood the contents of said codicil, but that he intended the same, at the time of executing it, as a final disposition, in the event ■of his death, of the property embraced in it; and that his testamentary papers in regard to said property was not formed under the influence of the presence of the said Bocock, as his attorney and professional adviser, the existence of which influence the jury are bound to presume from the relation of the parties and their presence together; and that he had, during the preparation of the codicil, or prior to its execution, such independent aid or advice from some competent third party as actually restored him, before its execution, to entire freedom from any such influence.</p> <p>6. The court instructs the- jury that though they should believe, from the evidence, that on the 17th day of June, 1867, John H. Johnson was of competent mental capacity to dispose of his property, yet, if they should further believe from the evidence, that by the will of the said John H. Johnson, bearing date the 18th day of February, 1867, disposing of a part of his estate, Albert Thornhill was appointed the executor thereof, and Thomas S. Bocock was appointed his legal adviser thereunder, and a referee to settle any disputes that might arise under the same as therein specified; and that the said Albert Thornhill and the said Thomas S. Bocock accepted the said several trusts therein respectively imposed upon them; and further, that at and before the said 17th day of June, 1867, the said Thomas S. Bocock was and had been for some years thegenei’al counsel and attorney of the said John TT. Johnson in and about all of his legal business, and that on that day the said Thomas S. Bocock was employed as such attorney and counsel by the said John H. Johnson, in and about the special business of the drafting and execution of a codicil to the said will, designed to be a further disposition of the estate of the said Johnson, and that the said Thornhill, ap- - pointed the executor of the said will as aforesaid, was present and took an active part in the transactions thereof, and that the said Bocoek, acting as such attorney and counsel, drafted the last clause of said paper, purporting to be a codicil to the said will, with the-knowledge and approval of the said Albert Thornhill, executor as aforesaid, and named as the executor in the said alleged codicil, and that the said attorney and counsel failed and omitted, with the knowledge and approval of the said executor, to attend personally to the execution of the said alleged codicil, and withdrew himself from the room of the said Johnson, and remained out of doors while the said executor, together-with the other subscribing witnesses to the said paper,, went into the room and by the bedside of the said Johnson to take charge of the execution of the said papers by the said Johnson as a codicil to his will, and the said paper was then executed by the said Johnson without any advice, either from the said attesting witnesses or from any other person, and that afterwards the said Johnson expressed a wish to change that clause in the said paper which directed how his property and money should be disposed of after his death, and that said wish was communicated to the said counsel and attorney by the said executor, and the said counsel and attorney did not personally attend on the said Johnson for the purpose of executing the said wish, or send to him a competent and disinterested adviser, other than the said executor, to execute the said wish in the premises, but instead thereof, while remaining away himself, sent to the said Johnson by the said executor the letter of the 25th'of June, 1867, together with the papers accompanying the same therein referred to, and never thereafter went to see the said Johnson before his death (on the 10th day of July, 1867), and no sufficient reason appears why his said counsel and attorney should not have done so upon said special business under the circumstances of the case in view of his relation to his said client as aforesaid, and of his interest under the said alleged codicil; and that his said client was in advanced old age, and afflicted with a disease or diseases expected soon to end in his death, and that the said executor and said confidential counsel and attorney were aware of his condition, and had notice of the same; and that said counsel and attorney, after the execution of the said paper by his said client, and before his death, was in his immediate neighborhood and failed to call and see his client upon the said subject, but upon the death of his said client promptly went to his house, and, with the consent of the said executor, took charge and control of the property and bonds referred to in the said latter clause in said paper, and that he afterwards used the same with the knowledge and consent of the said executor as if the said paper were a valid codicil; and that the said Thornhill, named as executor in said will and said paper purporting to be a codicil, has never rendered any account of his transactions as executor, and has never received any money from the said counsel and attorney, or paid any debts due by said estate, but has given and submitted the whole management of said matters under the said paper of the 17th of June, 1867, to the control of the said counsel and attorney, and the said counsel and attorney has himself rendered no account of his transactions in respect to the same, and that the property and effects which came into the hands of the said counsel and attorney under the said last clause of said alleged codicil were of large amount and greatly exceeding in value the indebtedness of said estate, then the jury must find that said last clause of said paper is null aud void, and is not a part of the will of the said John H. Johnson.</p> <p>And the court gave the jury the said instructions asked for by the plaintiffs in the issue, and rejected and refused to give the said instructions asked for by the defendants in the issue; to which said several rulings of the court the defendants in the said issue excepted.</p> <p>The jury found by their verdict, “that the paper writing dated the 17th day of June 1867, purporting to be a codicil to the will of John H. Johnson, deceased, is in all its parts and provisions the. true will of John H. Johnson, deceased.” And the plaintiffs in the suit, the defendants in the issue, moved the court to set aside the verdict of the jury, and to refuse to enter any decree in accordance therewith, because the said verdict is contrary to law and the evidence. But the court overruled the motion; and the plaintiffs excepted ; and the court spread the facts proved upon the record.</p> <p>Be it remembered, that on the trial of the issue in this case the following were all the facts proved before the jury :</p> <p>It was proved that John H. Johnson died at his residence, in the county of Appomattox, on the 10th day of July 1867, about 3 o’clock in the afternoon. That on the 18th day of February 1867 he made a will, which was prepared for him by Thomas S. Bocock, who was then, and had for several years before that time been his attorney at law and legal adviser in all his business matters requiring the aid of an attorney. That said will was witnessed by William T. Pankey, James A. Agee and Albert Thornhill. That, on the 15th day of June 1867, Thomas S. Bocoek, who had been sent for by John H. Johnson, went to the house of said Johnson late in the afternoon, and learned from Johnson that he wished him, Bocock, to prepare for him a codicil to his will; whereupon Bocock told him that it was then too late to prepare the codicil that day, and undertook to come again on Monday and prepare it; and on Monday morning, about an hour after sunrise, Bocock accordingly reached Johnson’s house again. When Bocoek reached there on this occasion he found Albert Thornhill there. Albert Thornhill lived not far off, and had gone over that morning to see Johnson, not knowing anything of any purpose to make a codicil to the will. When Bocock arrived he told Johnson that he had come there to complete that little item of business, and that if he wished it done it would be necessary for Mr. Thornhill to go home and get the will, which was in his possession. Mr. Thorn-hill went and brought .the will, and Mr. Bocock then told Mr. Johnson that he was ready to proceed; whereupon the preparation of the codicil began. Mr. Johnson, who said in the beginning that he would give nothing to his relations, had given several directions about disposing of his lands, which Mr. Bocock put in writing to his satisfaction, and they came to the disposition of his money and bonds and the residue of his estate. Mr.' Johnson said he was “ a little at a loss how to manage that,” or “ now you are too hard for me,” or some such expression; and he spoke of his money being mostly out and barred by the stay law, and said that after all his just debts were paid, and particularly if many such debts came against him as Mosby’s debt, there would be but little left; and said further, that he had thought of giving his sister Sally (Mrs. Dunn) and Ms sister Betsy (Mrs. Miller) $500 each, but that he had heard they had threatened to sue his estate as soon as he was dead, and he would give them nothing; and said further, alluding, as witness-supposed, to his relations, that he would not give any of them anything—they might get what they could at the end of the law: and he said to Mr. Boeock and Mr. Thornhill “ I want you to give me your advice.” Mr. Bocock told him if he (Bocock) was to advise him the will would not be his own, but his (Boeock’s). He hesitated, and then asked Mr. Bocock how it would do-to collect his money and put it in bank without interest. Mr. Bocock told him if he did so, and died without disposing of it, Ms relations would get it. Johnson said he did not want that; he did not want them to have it. He then asked Bocock how it would do for him (Bocock) to collect it, and hold it subject to his order. Bocock said that’l do. Johnson said suppose I draw orders on you. Bocock said he would accept them, payable when money sufficient was collected. Johnson then said now I can arrange it, and he told Mr. Boeock that if he did not order it out of Ms hands in Ms lifetime it was to be his. That it was now 11 or 12 o’clock, and Johnson called for his woman and ordered her to make a pitcher of lemonade, which was done, and she handed a glass to Thornhill and one to Bocock, who offered his to Johnson, who declined, and remarked, “these gentlemen would probably like to have their’s spiked,” and ordered her to get Ms bottle of liquor. Then' the business was suspended, because Johnson seemed to be tired, and he was allowed to rest until two or three o’clock, during which time Bocock and Thornhiirwithdrew from Johnson’s room. Then Bocock and Thornhill again entered his room, and he seemed to be asleep, when Bocock said rouse Mm and let’s get to work; then the business was resumed, and Johnson said a second and third time that he wanted him (Boeock) to collect his money, and hold it subject to his orders during his lifetime. Boeock asked what was to be done with it in case of his death. Johnson replied, if I do not order it out of your hands it will be .yours. Boeock seemed unwilling, and refused to write that down, and said to Thornhill that he had never done anything to bring reproach on himself. Thorn-hill in a low voice, unheard by Johnson, who was a little deaf, told Boeock he ought to do so, as Johnson had told him several times; that Mr. Johnson had sent for him to write his will, and that seemed to be his will; and Johnson himself said, with some impatience, “I’ve told you several times, write it as I say.” Bocock then wrote it down. Johnson then asked Boeock how it would be if he (Johnson-) should draw orders on him before he had collected the money. Boeock told him he would accept the orders, payable when the money came to his hands. In the course of the preparation of the codicil, Boeock, who put it all down first in the form of notes, read over the notes to him several times, and the list of bonds appended to the codicil was prepared at the dictation of Johnson from memory. When it was completed, Thornhill, who had been told by Johnson that he wanted the same witnesses to the codicil who witnessed the will, sent for William T. Pankey and James A. Agee for the purpose. They came about night. Boeock, who was in the yard when Pankey came, gave him the codicil, and Pankey took the codicil from Boeock and went in and read it to Johnson. This was by candle-light. Twice during the reading Pankey asked him if he heard. Johnson both times said he did, and once said he had already heard it read. When the reading was completed Johnson signed it, and Thornhill, Agee and Pankey subscribed it as witnesses at his request, all three of them and Johnson being together when this was done. In the opinion of the subscribing witnesses Johnson was fully competent to make a will, and the witnesses, took pains to satisfy themselves on this point. The will and codicil are in the following words and figures, to wit:</p> <p>[See at close of testimony.]</p> <p>During the preparation of the codicil, several colored people, formerly slaves of Johnson, were about the house, among them Martha, who had been kept by him as a wife, and Albert and Washington, who were reputed to be his natural children. They withdrew from the room when the writing was done, but Albert and Washington were in the adjoining room, the door of which was open, and heard and saw all that passed, as Johnson was a little deaf, and conversation with him was necessarily loud. Johnson was an old man, seventy years old or more; at least that in 1859. His health on the 17th June had become bad. He had been for some time confined to his bed, but could get up and even sit up. He continued after the 17th June to grow worse until his death. The main symptoms of his disease was dropsy and inability to retain his urine, and he required constant attention, which was chiefly given him by his woman Martha. He slept a good deal, but had a habit, many years before his death, of appearing listless and closing his eyes, when really he would be watchful and attentive.</p> <p>Between 1848 and 1860 William M. Cabell was his. attorney and legal adviser. In the year 1859 Cabell prepared a will for him, by which he freed his negroes and gave to his natural children, some of whom were white and some black, the bulk of his estate, but nothing to any lawful relation. He often, during the time Cabell was his attorney, expressed himself to Cabell as very hostile to his relations, with some of whom he had much bitter litigation, and said they had worried him all his life with law suits, and had hunted him like a wild beast, and he often declared his purpose of never giving them a cent, and to other witnesses he subsequently made similar declarations.</p> <p>By the will of 1859 he made Cabell and one James A. Wright his executors, and gave each of them $5,000 in lieu of commissions as executors.</p> <p>Some days after the codicil was executed Johnson sent for Thornhill and said to him that Susan Johnson, and perhaps others, had been telling him he had given all his property to Bocock, and had no control over it. Thornhill told him it was not so, and that he would not have witnessed any such will, and told him he would go or send for any person he (Johnson) might wish to write the codicil over for him. He said no, he wanted no one but Mr. Bocock, and that Mr. Bocock would come down after his court in Lynchburg was over. Johnson said he wanted some alteration made in the last clause of his codicil, but what it was Thorn-hill could not get him to say. Thornhill told him he could not wait, because he could not live long. On the 24th June, Thornhill went to Lynchburg and saw Bocock, and told him what had taken place between him and Johnson since the codicil was written. Bocock thereupon wrote to Johnson, and sent, by Thorn-hill, a letter and two accompanying papers. [See post.]</p> <p>Thornhill took them to Johnson on the 26th June. Johnson rose up and sat on the side of the bed and read the letter, but not the accompanying papers, and said he was satisfied, and that Mr. Bocock understood the matter as he did, and that he had retained full control over his property, and if it pleased God he ■should live five or six months he might'make some little change in the latter clause of his codicil.</p> <p>Thornhill went to see Johnson every day but two from the 17th June till he died. He lived one and a quarter miles from Johnson. When he took the letter and accompanying papers from Bocoek in Lynchburg, it was understood between him and Bocoek that if Johnson wanted Bocoek to come down before his court in Lynchburg was over, he, Thornhill, would send for him and let him know, and Bocoek would come at once, which understanding was, however, not communicated to Johnson. Ho further communication took place between Thornhill and Bocoek until the death of Johnson, at which time Bocoek was at his own plantation, about three miles from Johnson’s.</p> <p>Bocoek had some few days before come down to his plantation from Lynchburg, on his way to Buckingham court, where he was on Monday, the 8th day of July, and from which place he returned to his plantation on Tuesday, the 9th day of July, and when the death took place on the 10th July, he was sent for by Thornhill and went over to Johnson’s at once.</p> <p>On the night of the 17th June, after the codicil was finished, Washington Johnson, one of his color el natural children, approached his bedside and said to him, now, to a moral certainty, you have given Mr. Bocoek everything, and have made no provision for us. He said, “I am not dead yet.”</p> <p>It was proved by Cabell that while he was attorney for Johnson, from 1848 to 1860, Johnson was a man of strong mind, hard in his disposition, even with his natural children, of inflexible will, and of a suspicious disposition, and extremely bitter in his feeling towards his relations.</p> <p>All the subscribing witnesses knew Johnson well, but Agee and Pankey were neither intimate with him, and very seldom saw him. Thornhill had known him for forty years, but was not in the habit of visiting him till the codicil was made, and very seldom before that time went to his house.</p> <p>Some time during the war the professional relations began between Johnson and Bocock. Once during the war Johnson talked with James A. Wright, who was in the habit of transacting some of his business for him, about making a will and freeing his negroes, and talked of getting Bocock to write it for him. Wright told him that Bocock was speaker of the Confederate congress, and could do it as well or better than any other man.</p> <p>It was proved by Cabell that during his attorney-ship, and by another witness that subsequently, Johnson spoke of his estate being probably involved in litigation after his death, and declared his purpose of leaving his executor strong-handed to defend it. -A day or two after the codicil was made, Johnson wras spoken to about making some provision for his servant Martha. He said when they were slaves, all they wanted was freedom; and when they got free they wanted a home, and now they wanted everything he had, and they shouldn’t have it. On the occasion of the conversation above referred to, between Albert and Johnson at Johnson’s bedside, Johnson said to Albert: “The stay-law and the bankrupt law are against my money. Before you were free it was nothing but freedom; then the state set you free, then you want money; now, you must work for money as I did. My estate is going to be sued; they are going to sue you and your ehildren—them in the cradle and them unborn. Oh God,. I wish I could rise from the grave and hear the contention. I leave my money to Bocock; so that he can’t be bought. I leave it to him to defend you till the last dollar is spent. I might give you a bond, and you might hand it to a lawyer to collect and never receive a cent. I have been trying to collect my money and failed, and if Mr. Bocock should do so and have some left, who would have a better right to it than he who labored for it?” He said also that Bocock had been injured by the war, and was a public man, and had been disfranchised, and he intended to help him.</p> <p>It was proved that the Circuit court of Lynchburgadjourned on the 29th June, 1867.</p> <p>The will beai’s date the 18th of February 1867, and in it he disposes almost exclusively of the land where he lived. From this he divided off eleven lots, which he gave to certain persons mentioned in them: and the remainder of the 'tract, which consisted of wood land, his executor was to hold for the benefit of those to whom he had given the lots of land; all of whom were persons of colour, and most of them were reputed to be his children. He appoints Thomas S. Bocock as the legal adviser of his executor, in all things touching the management of his estate, and he and the executor were to have full power to settle any difficulties arising among his devisees, about their respective interests under his will. And he appointed Albert Thornhill his executor.</p> <p>The codicil bears date the 17th of June 1867. After making some slight changes as to the wood land reserved in the will, and making some other devises of land in the county of Prince Edward, and of interest in two houses in Lynchburg, among some of the same persons mentioned in the will, he comes to the last clause which was the subject of contest in this case, and is as follows:</p> <p>“ I have deposited my bonds and claims mostly in the hands of Thomas S. Bocoek, in whom I have con-, fidence, with the understanding that I can draw on him for the money as it may be collected; and if I shall draw for any amount before the same shall be collected, he agrees to accept said order, to be paid whenever the funds may come into his hands to pay the same; provided the whole amount drawn for may not exceed the net amount which may come to his hands for use. How it is my will and desire at my death he shall proceed to collect all sums due me as the laws of the land may permit—interest when interest can be collected, and principal when that may be done,—and out of the net amount which may come into his hands, that he shall pay over to my executor whatever may be necessary for the payment of debts, also the commissions of said executor on collections made for my estate, and also all orders drawn on him by me in my lifetime, and accepted by him, as above stated; and any amount which may remain, after these payments, in his hands, shall never be claimed by my executor, or by any other person, by any authority from me; but the same shall remain his absolute property.”</p> <p>To this codicil was added a list of debts made out by him at the time, twenty-seven in number; being such as he remembered at the time, though not pretended to embrace all, or to be strictly accurate.</p> <p>The letter referred to in the statement of facts proved, bears date Lynchburg, June 25, 1875, and is as follows:</p> <p>Dear Sir:</p> <p>Our friend, Mr. Thornhill, informs me that you have expressed a wish to change the clause in the codicil to your will, which .directs how your money shall be disposed of after your death. It was put down j'ust as you directed, as you will remember, and after full explanation. Mr. Thornhill will read it to you again, so that you can bear it fully in mind. I wish to have it exactly to suit you. So far as I have any connection with it I wish it to be your will, and not that of any other person. Every is yours, and is altogether in your power. If it does not suit you as it stands you can change it in several modes. You can revoke the last codicil altogether, and make another if you choose, or you can make another codicil, altering the first so far as you wish to alter it; or leaving the will and codicil to stand as at present, you can draw an order or orders on me, payable after your death, in which you can direct that your money be given to whoever you wish. Just say who you wish to have it, and it shall be done accordingly. I send by Mr. Thorn-hill the form of a new codicil, and also the form of an order, such as I have indicated. He can have them, or either of them, changed to suit you. You have only to say what change you wish to make, and it shall be done. If I could leave here with propriety, I would go down immediately and aid you so far as in my power; but the Circuit court is in session, and will remain in session for some days longer. As soon as my business is through I will be down.</p> <p>With best wishes, &c., &c.</p> <p>The copies referred to in the letter, and sent with, it were the copies of an order on Bocock directing that any net balance in his hands remaining after payment of debts and commissions of executor as aforesaid, be paid out and distributed among Johnson’s relations, as the same would be paid and distributed under the laws of Virginia regulating the distribution of the money and effects of deceased persons not disposed of by will.</p> <p>The form of the codicil was to the same effect.</p> <p>The cause came on to be finally heard on the 28th of May 1874, when the court made all the proceedings and evidence had on the trial of the issue a part of the record, and decreed in accordance with the verdict of the jury, the paper writing dated the 17th of June purporting to be a codicil to the will of John H. Johnson deceased, to be in all its parts the true last will of the said John EL Johnson deceased, and that the bill be dismissed with costs. And thereupon the plaintiffs applied to a judge of this court for an appeal: which was allowed.</p> <p>The cause was most elaborately argued in printed notes as well as orally by Guy & Gilliam, John Howard and Cosby, for the appellants, and Kean and Kirkpatrick & Blackford, for the appellees; but it is impossible to do justice to the argument in a brief note.</p>

This was an action of assumpsit in the Circuit court of the city of Richmond, brought in October 1870, by the Bank of the Old Dominion, located in the city of Alexandria, against Wm. if. McVeigh, late president of the bank, to recover the sum of $26,500, which it was alleged said McVeigh, as president of the bank, had collected in January 1863, from the State of Virginia for interest upon the bonds of the state held by the bank.

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

In June 1868 Patrick Belton filed Ms Mil in the Circuit court of Bichmond, in which he states, that in. April 1866 he received as a loan the sum of $1000, from, as he believed at the time, one Parker Campbell, for which he gave his negotiable note for $1300, payable one year after date, secured by a deed of trust;. ■which he exhibits with his bill.

<p>This was an action of assumpsit in the Corporation court of the city of'Norfolk, brought by W. H. C. Ellis against the city of Norfolk, to recover the sum of' $874.11, which he paid under protest, as the amount, assessed upon a lot on Wood street in the city, owned by the said Ellis, for the paving of said street. The parties agreed the facts, and dispensing with a jury, submitted the whole case to the decision of the court.</p> <p>By the charter of the city the councils of the city of Norfolk have “the power to close, extend, widen, narrow, lay out, graduate, improve and otherwise alter streets and public alleys in said city, and have them properly lighted and kept in good order,” &e. “ And for the .execution of their powers and duties, they may raise, annually by taxes and assessments in said city, such sums of money as they shall deem necessary to defray the expenses of the same, and in such manner as they shall deem expedient, in accordance with the constitution and laws of this state and of the United States: provided, however, that they shall impose no tax on the bonds of the city.”</p> <p>An ordinance of the city for paving and repairing streets, after providing a fund of $150,000 for this purpose, to be raised by the issue of the bonds of the city, provides how the work shall be given out to contract, when it is ordered to be done by the councils; and by § 5, provides—That when any unpaved street is to be graded, curbed and paved, three-fourths only of the cost shall be assessed upon the lands or lots lying thereon. Such assessment shall be collected by the city collector as other taxes are collected. And by § 7, it is provided—That when a street is ordered to be paved, the city surveyor shall furnish to the street committee a plan of the street, the squares, the number of front feet of each lot, and the names of the owners thereof. From this plan the bills of assessment shall be made out by the commissioner of the revenue and delivered by him to the collector.</p> <p>The streets recently paved under the ordinances were not ordered to be paved until all the conditions precedent to such ordering were complied with, as specified in the charter; and "Wood street was ordered to be paved upon a petition of a majority of the owners of real estate fronting on said street, and by a unanimous vote of the councils in joint meeting. The plaintiff Ellis owned a lot fronting two hundred and forty feet on Wood street, which was unimproved, and before the street was paved was assessed at $8000. The assessment on the lot was at so much per front foot, amounting in the whole to $1165.48; and after deducting the one-fourth to be paid by the city, left the amount chargeable to the plaintiff $874.11. And the ratio of assessments on all the lots on the street whether improved or unimproved was the same; viz: between four and five dollars the front foot. This tax the plaintiff paid under protest and compulsion.</p> <p>It appears that the lots on the corners of the streets are assessed for the pavement of both streets, so that a lot fronting twenty or forty feet on one street which was paved heretofore, and running on another street from one hundred to two hundred feet, is assessed on the whole length of the lot; and one case is stated, in which one person owns several lots on Queen street recently paved, valued in the aggregate before the improvement at $9000, one of which lots fronts on Queen street two hundred feet, and has an average depth of three feet six inches. This lot was assessed before the improvement at $150, and its proportion for the expense of paving the street is not less than $1000.</p> <p>Until the passage of the present ordinance the whole cost of the paving the streets of the city had been assessed upon the owners of real estate lying on said streets per front.foot.</p> <p>Upon the hearing of the cause, the court below rendered a judgment in favor of the plaintiff for the said sum of $874.11, with interest from the date of the judgment and costs. And thereupon the City of Norfolk applied to a judge of this court for a writ of error and supersedeas; which was awarded.</p>

<p>Robert Gregory of Mecklenburg county, died in 1856, leaving a widow and one child, Rosa B. Gregory, an infant. By his will he loaned to his widow all his ■estate, both real and personal, until his daughter was eighteen years of age, for the support of herself and her daughter, unless his widow should sooner marry; in which event he gave her certain slaves named absolutely. In the event of his widow marrying or dying before his daughter attained the age of eighteen years, he gave the remainder of his estate to his daughter. He appointed his brother James A. Gregory his executor; and he qualified as such and gave Alexander ■Smith and D. G. Smith as his sureties in his official bond.</p> <p>James A. Gregory proceeded to administer the estate, and seems to have settled his executorial accounts regularly until January 1860. On the 1st of March 1858, he was indebted to the estate in the sum of $2,480.67, and on the 1st of January 1860 the balance reported against him by the commissioner was $4,016.37.</p> <p>Mrs. Gregory having married again in 1860, and the whole estate, except the slaves given to her, being the property of the daughter Rosa B. Gregory, James A. Gregory, in April of that year, qualified as her guardian, with William Smith and C. H. Pettus as his sureties. He then closed upon his books the executorial account which he kept, and opened on them an ■account as guardian of RosaB. Gregory; and the first item in this account as guardian is a credit to his ward, under date of January 1st 1860—Amount due from estate of R. T. Gregory $4,016.37. And the account was kept as a guardian’s account upon his books. When, however, he submitted his accounts for settlement to the commissioner in 1863, the commissioner stated it as his account as executor; and reported the balance due from him as executor on the 1st of January 1862 to be $4,659.80. Gregory states in his evidence given in this ease, that he gave the commissioner-his book containing the account as he kept it, and requested him to settle the account as a guardian’s account ; and when he saw that it was made off as executor, he enquired of the commissioner why it was done, and the commissioner said that as there was but one legatee it made no difference.</p> <p>In 1860 when James A. Gregory transferred on his books the balance due from him as executor to his account as guardian, and at any time subsequent to that, he did not have in his hands, any money, stocks, bonds, accounts or assets of any kind belonging to the estate of his testator; but the amount so transferred was his personal indebtedness as executor to the estate. ISlor did he afterwards make any investment of funds in the name or for the special benefit of his ward Eosa B. Gregory. He says in his evidence in this case, that both in 1860 and in 1863, his estate was ample to pay this and all his other debts. It also appears that at these dates and indeed until "the decree in this case, there was a debt of $1,000, contracted by the testator, which had not been paid.</p> <p>At the rules in July 1866, James A. Gregory had a suit instituted in the Circuit court of Mecklenburgcounty, in the name of Eosa B. Gregory, by her next friend, against him as executor of Eobert T. Gregory, deceased, and guardian of the plaintiff, asking that James A. Gregory might be required to render before a commissioner under the direction of the court, a full settlement of his accounts as executor and guardian. On the same day Gregory filed his answer, in which he-says he has made several ex parte settlements of his transactions as executor, which he believes are satisfactory to all parties having an interest in them. Subsequent to these settlements, however, he, both as executor of Robert T. Gregory and as guardian of the plaintiff, has had a number of transactions, the consideration of which was Confederate States treasury notes; and he is advised that an account of these transactions can be properly and equitably adjusted only under and by the direction of a court of equity. Being so advised he unites in the prayer of the bill for a settlement of these accounts by a commissioner.</p> <p>On the 5th of September .1866 the court made a decree that the defendant James A. Gregory do render before one of the commissioners of the court, an account of his transactions as executor of Robert T. Gregory deceased, and also as guardian of Rosa B. Gregory; which the commissioner was directed to examine, state and settle, and report to the court.</p> <p>On the 8th of September commissioner Atkins returned his report. He first states the account as executor, which he brings down to the 1st of January 1863, and states a balance in his hands at that date of $4,599.93; which he settles by an entry of that sum transferred to J. A. Gregory’s account as guardian of Rosa B. Gregory. He then states an account as guardian, charging him as of the 1st' of January 1863, with this sum as guardian; and reports a balance due from the guardian on the 1st of September 1866 of $5,350.20.</p> <p>The cause came on to be heard on the 18th of the same month of September, upon the papers formerly read and on the report of the commissioner, which was received and considered by consent of parties by counsel, on consideration whereof, there being no exception to said report, the court confirmed the same, and decreed that James A. Gregory do, from time to time, and without any further decree, render before-one of the commissioners of the court a further account of his transactions as guardian of Rosa B. Gregory, which accounts the commissioner &c.</p> <p>In March 1869 Rosa B. Gregory, who was still an infant under twenty-one years of age, by her next friend, brought a suit in equity against James A. Gregory as executor of Robert T. Gregory deceased, and as guardian of the plaintiff Alexander Smith, in his own right and as the administrator de bonis non of William Smith deceased, D. G. Smith, and Mary A. Pettus administratrix of C. PI. Pettus deceased. In her bill after setting out the death and will of her father, the qualification of James A. Gregory as executor and guardian, and the suit brought in 1866, as herein before stated, she charged that at the time he made the transfer of his indebtedness as executor to his guardian’s account he had no money or assets of his testator in his hands. She says that in the settlement of his account in 1866 he gave the first indication that he regarded the balance of $4,599.98, as held by him in his character of guardian of the complainant; and she charges that at the time that account ivas rendered the said James A. Gregory was in insolvent circumstances. She charges that he had been declared a bankrupt, and had made a surrender of his property, and complainant is left to look to the sureties of said Gregory on one of his official bonds for the satisfaction of his indebtedness to her. She insists that the act of the commissioner transferring a balance found due by an insolvent executor who held no money or property whatsoever belonging to the estate of his testator in his hands, could not shift the onus from the shoulders of his sureties as executor to those of his sureties as guardian of the complainant; and that she is entitled to look to the sureties upon the executorial bond for satisfaction of the indebtedness of the said James A. Gregory to her. Certainly, however, she is entitled to look for indemnity to the sureties upon the one bond or the other. And making the said James A. Gregory, and Alexander and D. G. Smith his sureties in his executorial bond, and the said Alexander Smith the administrator de bonis non of William Smith deceased, and Mary A. B. Pettus administratrix of C. H. Pettus deceased, the said William Smith and O. H. Pettus, having been the sureties in the guardian’s bond, defendants, she prayed that the court would decree against the said Gregory and his sureties in one or other of the official bonds aforesaid, for whatever may be ascertained to be the amount of his indebtedness to her, and for general relief.</p> <p>At the March rules James A. Gregory filed his answer. He admits that he did in 1866 cause the suit aforesaid to be instituted, in which suit his accounts both as executor and guardian were settled by a commissioner, whose report was confirmed. That from these accounts as early as January 1st 1863 the entire balance due from him as executor was debited to him as guardian of the plaintiff; and he refers to these accounts. He denies that the report by the commissioner of the transfer of balance made by him as of January 1st 1863, was the first act or intimation of the respondent that he held the balance due on his executorial account as the proper funds of his ward Rosa B. Gregory. On the contrary, as appears from his original book of accounts, the last entry in his account as executor was made March 15, 1860. The balance due the estate at that time was $4,016.37. On the 16th of April 1860 he qualified as guardian of plaintiff, and the said balance was transferred on his books to her credit in an account headed: R. B. Gregory to J. A. Gregory, guard., and from that time to the settlement aforesaid by the commissioner, every entry in relation to the estate was made by respondent on his guardian account; and he treated and regarded the whole the estate as belonging to his ward Rosa B. Gregory, from and after the date of his qualification ag guardian and transfer as aforesaid.</p> <p>He further says that in April 1860, when he opened his guardian account as aforesaid and credited his ward with the balance due from him as executor, although the balance was not actually in his hands in cash, and so transferred, he was the owner, over and above his other debts, of property and effects, worth largely over, indeed many times over the amount thus transferred. He denies that he was in insolvent circumstances either in 1866 when the account above referred to was settled, or in January 1863 when the balance was transferred by the commissioner to the guardian account. In January 1863 as in 1860 he was fully able to meet an indebtedness many times larger than the balance transferred; and in 1866 although his means were much reduced by the disasters of the war, he yet regarded himself as fully able to discharge the indebtedness in question after satisfying his other debts.</p> <p>At the April 1869 term of the court, Rosa B. Gregory by her next friend, filed ber petition in which after set-ting out the proceedings in the suit of 1866, as herein before given,-she says that James A. Gregory is a bankrupt, one of the securities in the guardian’s bond is dead, and his estate is believed to be insolvent, and the solvency of the other security is doubtful; and stating that though nominally plaintiff in that suit, she had no agency in bringing or prosecuting it, she prays that the said cause may be reheard upon the report of the commissioner, and that it may be heard with another suit in this court upon a supplemental bill in the nature of a bill of review filed by her by her next friend, against the said James A. Gregory as guardian and executor as aforesaid and against his sureties in his official bonds.</p> <p>In May 1869 Alexander and D. G. Smith the sureties in the executorial bond, filed their answer referring to and adopting the answer of James A. Gregory as a part of their own, and relying upon the same and all the facts therein set forth as their proper and full defence.</p> <p>The only material fact not already stated is, that Atkins who prepared the papers and filed the petition in bankruptcy for James A. Gregory states, that nearly the whole of said Gregory’s indebtedness was reported to him by Gregory as being due in 1860, or before that time; and that the indebtedness wTas very heavy.</p> <p>In October 1871 Commissioner Atkins restated the accounts of James A. Gregory, in which he brings down the executorial, account of James A. Gregory to September 1, 1866, and states a balance on that day due from the executor to his testator’s estate of $4,599.43 of principal and $769.95 of interest. He states a guardian’s account commencing January 1st 1863, which he brings down to September 1st 1866, and reports a balance due to the guardian of $63.79.</p> <p>The cause came on to be finally heard on the 27th of October 1871, when the court, being of opinion that the proceedings in the suit instituted by James A. Gregory in the name" of his ward were irregular and erroneous, and that the plaintiff should not be estopped by the decree entered in that suit on the 18th of September 1866, reversed and set it aside% And the court being further of opinion that the defendant James A. Gregory, being both executor and guardian, could not by bis voluntary act transfer bis liability on bis official bond from one set of securities to the other, and that he had no authority to transfer the money-due by him as executor to the guardian of Eosa B. Gregory, until the estate of his testator was fully administered by the payment of all the debts and liabilities of the testator known to him; and that not having been done his securities on the executorial bond are responsible to the plaintiff for the amount due from him to the estate of his testator. And James-A. Gregory admitting by his answer his indebtedness to the estate as reported by the commissioner in his report of September 8th 1866, and the defendants Alexander and D. G. Smith having by their answer adopted the answer of said Gregory, and the court reforming the said account by striking from the administration account the items which should be charged in the guardian’s account, and giving credit for the balance due to the guardian on that account, decreed that the defendants James A. Gregory, Alexander Smith and D. G. Smith do pay to Robert Burton, legal guafdian of Rosa B. Gregory, the sum of $5,306.13 with legal interest on $4,599.93, part thereof, from the 1st of September 1866, till paid, after being credited with the sum of $1,300.16 as of this day;,it being the amount of a bond due from the estate of Robert T. Gregory to R. R. Jeffress, and which has been transferred to the defendants Alexander Smith and D. G. Smith. And that the defendants pay to the plaintiff her costs. From this decree Alexander and D. G. Smith applied to a judge of this court for an appeal; which was allowed.</p>

In December 1854 Joseph W. Mason, of the county of Suffolk, died, leaving a widow and one child, an infant, named Lucy.

This was an action of assumpsit in the Circuit court of Floyd county, brought in June 1871, by Charles H. Huff and Jackson Godbey against Adam Broyles and Oceola Sitgreaves, to recover the amount of certain expenses the plaintiffs had incurred in relation to a jack purchased by them from the defendants. The caséis stated by Judge Moncure in his opinion.

<p>This was a suit in equity in the Circuit court of Washington county by J. B. and W. A. Dunn against W. W. Dunn, A. J. Dunn and others, to have a settlement of the accounts of two mercantile firms, one of which consisted of .the plaintiffs and the two named defendants, and the other consisted of the plaintiffs and A. J. Dunn. W. W. Dunn appeared and filed a demurrer and answer, the demurrer being contained in the answer, and not stating the ground of demurrer, except that the bill is not sufficient in equity to entitle the plaintiffs to the relief which they seek. Upon the hearing the court sustained the demurrer and dismissed the bill with costs. And the plaintiffs applied to a judge of this court for an appeal; which was allowed. The case is stated by Judge Moncure in his opinion.</p>

This was a bill filed in the Circuit court of Floyd county, in August 1860, by Andrew J. Kirby, trustee in a deed from James B. Headen and wife to secure the payment of debts due from Headen, to have the direction of the court in the administration of the trust fund. In the progress of the cause all the debts seem to have been paid or settled, except a debt due to Lane & Tompkins, which was assigned by them to D. & J. Goodykoontz.

In May 1878 Anderson Cox and four others, children of Joseph Cox deceased, filed their bill in the Circuit court of Carroll county, against Solomon Cox, seeking to enforce a specific execution of an agreement between Joseph Cox and his father Enoch Cox, by which, as they alleged, in consideration that Joseph Cox would support the said Enoch Cox and his wife during their lives, the said Enoch would give to the said Joseph the tract of land on which they then lived.

This was an action of debt in the Circuit court of Craig county, in which Henry Walker was plaintiff and Daniel and Lloyd Huffman were defendants. There was a judgment for the plaintiff; and the defendants obtained a writ of error from a judge of this court. There were several questions made in the Circuit court which were not considered by this court.

In June 1869 H. F. Peery recovered a judgment by confession in the County court of Tazewell, against John M. Witten and W. W. Peery, for twelve hundred and forty dollars, with interest from the 8d of January 1861 until paid and costs, $5.88. Prior to June 1873 both the plaintiff H. F. Peery and John M. Witten had died, and James P. Kelly had qualified as administrator of H. F. Peery and as executor of Witten.

This was an action on the case in assumpsit iu the ■Circuit court of Wythe county, brought in April 1870, by John T. Sayers Jr. against the Virginia and Tennessee Railroad Company, to recover the value of a lot of fat cattle shipped by the plaintiff on the road of the defendants, and which were killed by the throwing off of the car in which they were carried from the track of the road at Big Otter bridge in the county of Bedford.

<p>In June 1871 William J. Wall and William J. Jordan, late merchants and partners, who sued for the benefit of William J. Wall, filed their bill in the County court of Pulaski county, in which they alleged that in 1867 they had recovered a judgment against Reuben Sayers for $1,266.52, with interest, &c. That said Sayers had no personal property liable to execution, but that he was seized in fee simple of a tract of land in the county of Pulaski containing seven hundred and fifty acres; and that the rent of this land would not pay their debt in five years. And making Reuben Sayers a party defendant, they pray that so much of the land as is necessary to pay off their judgment may be sold, and for general relief.</p> <p>In July 1872 two other judgment creditors of Reuben Sayers were, upon their petitions, permitted to come in as plaintiffs, to have satisfaction of their judgments out of the same land.</p> <p>In January 1871 the court made a decree directing S. W. Poage, one of the commissioners of the court, to ascertain and report the amounts of judgments against the defendant Reuben Sayers, and the priorities of the liens of the said judgments, and the real •estate owned by said Sayers, its location, the number of acres and the condition of the title to it, with any special matter, &c.</p> <p>In March 1872 Sayers answered the bill. He admits the judgment of Hall & Jordan; but says, that whilst he was at one time the owner of the land mentioned in the bill, he is not now, and has not been the-owner thereof for some sixteen years: that he has no-right or interest in said property; that the same is in the possession of and under the control of James H. Comer and Margaret M. his wife, A. C. Dunn and Angeletta his wife, J. Howe Sayers and James C. Deaderick and Lizzie his wife, who claim and are entitled to the said property in fee simple as heirs at law of Eleanor A. Sayers deceased.</p> <p>At the same term of the court Comer and wife, Dunn and wife, and J. Howe Sayers, asked for and obtained leave. to file their petition in the cause. In their petition they say that the said Margaret M., Angeletta and J. Howe Sayers with Elizabeth J. the wife of James Deaderick, are the children and heirs at law of Mrs.Eleanor Ann Sayers deceased,and inherited from her at her death, a fee simple estate in a tract of land containing about seven hundred acres, situate near Dublin depot in the county of Pulaski. That the petitioners are owners of three-fourths of said land, and are now and have been for several years, in the possession and enjoyment of the same. That Hall & Jordan who claim as judgment creditors of Reuben Sayers, have filed their bill in this court seeking to subject said land of the petitioners to satisfy their said judgment. That Reuben Sayers has no title to said land, but the fee simple thereto is vested in the petitioners and said Deaderick and wife; and that the petitioners have not in any manner parted with or conveyed away their title to or interest in said land. They are informed that a commissioner of the court has filed with his report in the cause, a paper purporting to be the deed of your petitioners for their interest in said land to Reuben Sayers; and they aver that said paper is not their -deed, and is wholly inoperative and void. The petitioners are therefore interested in the subject-matter of said suit, and ask that they be made parties defendants in the cause, and that their rights may be projected.</p> <p>At the May term of the court the plaintiffs amended their bill, and made Deaderick and wife defendants in the suit. ’ In their bill they say they have been informed that these persons claim an interest in the land in the original bill mentioned.’ Plaintiffs do not admit that they have any interest, and insist, that if they assert any right to the said land or any part thereof, they may be required to make full and satisfactory proof of their title.</p> <p>At the August term of the court J. Howe Sayers, Comer & wife and Deaderick & wife, by leave of the court, filed their answers, to which the plaintiff replied generally. They aver that the land which the plaintiff seeks to subject to the payment of his debt, was in Hovember 1855 conveyed by Reuben Sayers to his wife Eleanor A. Sayers, and the deed was immediately put upou record. That at that time Reuben Sayers owed very little, and retained property ample to pay his debts. That not more than fifty dollars of the plaintiff’s debt was then due. That Mrs. Sayers died in 1864, leaving J. Howe Sayers, Mrs. Comer, Mrs. Dunn and Mrs. Deaderick her children and heirs at law. That soon after the war the said heirs agreed to sell the land if $30,000 could be gotten for it; and A. C. Dunn was authorized to make the sale if he could do it at that price. That as the parties were scattered, it was agreed among them that they would make a. deed conveying the land to Reuben Sayers, to be held - by a third person as an escrow, to be delivered to Reuben Sayers when the sale was made, that he might convey the land to the purchaser, and thus prevent delay, and remove any cloud upon the title from the fact that Reuben Sayers had conveyed the land directly to his wife. That accordingly a deed was prepared and was executed by J. Howe Sayers, Comer & wife and Dunn & wife; and it was expected that Lizzie,, the youngest child who was not quite of age, would execute a like deed on her coming of age. That the-deed when executed, was intended to be deposited with Isaac Hudson, their attorney; but remained with the justice who took the acknowledgment of the parties; and Lizzie, on coming of age, declining to execute a deed, and Dunn having failed to sell the land, defendants regarded the deed as of no effect, and supposed it had been destroyed, as instructions to that effect had been given to said attorney. That said deed never was. delivered to Reuben Sayers, but remained with the justice who took the acknowledgment of the parties, until about the commencement of this suit, when the plaintiff "Wall, with a full knowledge of these facts, obtained said deed from the said justice by paying him his price therefor, and then procured the recordation of the same by affixing the necessary IT. S. revenue stamps, and paying the clerk his recording fee and the state tax.</p> <p>The answer of Deaderick and wife is to the same effect, except as to the deed executed by the other defendants : They were no parties to that deed.</p> <p>The deed from Reuben Sayers to his wife is as follows: This deed made this the 15th day of November in the year one thousand eight hundred and fifty-five,. between Reuben Sayers and Eleanor Ann Sayers, his wife: Witnesseth, thatwhereas the said Reuben Sayers intending shortly to visit the Western country, and knowing the uncertainty of life, and to provide a permanent home and a future residence for his family, in case he should not be permitted to return in safety home, and seeking to provide against confusion at all events, now this indenture witnesseth, that for and in consideration of the premises, and for the natural love and affection he has for his wife, the said Reuben Sayers doth grant unto the said Eleanor Ann Sayers his entire real estate lying in the county of Pulaski, his present residence, containing seven hundred acres, more or less. Witness the following signature and seal.</p> <p>Reuben Sayers, [Seal.]</p> <p>This deed was acknowledged by Reuben Sayers in the clerk’s office, on the 21st day of November 1855, and admitted to record.</p> <p>The deed from Comer & wife and others to Reuben Sayers bears date 22d of November 1867, and says, in consideration of the natural love and affection they have for their father, the said Reuben Sayers, they do grant unto the said Reuben Sayers all their right, title and interest whatsoever, both at law and in equity, to all the land embraced in and conveyed by a deed executed by the said Reuben Sayers to his wife Eleanor A. Sayers on the 15th of November 1855; and the same grantors release all their claims as heirs at law of the said Eleanor A. Sayers to the said grantee, to the said land.</p> <p>This deed was acknowledged before a justice by Comer and J. Howe Sayers on the day of its date, and by Mrs. Comer before two justices on the same day, and it was acknowledged by Dunn before the same justices on the — day of February 1868, and by Mrs. Dunn on the 2d of May 1868. And it was presented in the clerk’s office on the 27th of April 1871, and admitted to record on that day.</p> <p>The evidence shows very clearly, that at the date of the deed from Reuben Sayers to his wife, all the debts' he owed did not amount to one hundred dollars, and that he then owned personal property, including eight valuable negroes, worth from ten to twelve thousand dollars. He continued to live on the land, with his wife and children, doing apparently a prosperous business; and at the end of the war he owned thirteen slaves, which were then lost to him. This evidence is sufficiently stated by Judge Anderson in his opinion.</p> <p>It also clearly appeared from the evidence, that the deed from Comer and wife, Dunn and wife, and J. Howe Sayers, to Reuben Sayers, was made for the purposes stated in their answer; that it had never been delivered to Reuben Sayers, but had been retained by the justice who took the acknowledgments of the grantors until his fees should be paid, and that Wall, the plaintiff, obtained it from him by paying the fees, without authority from any party to the deed, and that he had it put to record.</p> <p>The commissioner to whom the case was referred made his report in February 1872, in which he stated the judgments against Reuben Sayers as amounting to, of principal $5,028.38, of interest up to the 1st of February 1872 $3,275.35, costs, $68.28, equal to $8,372.01. The interest on all of these debts commenced after the date and record of the deed from Reuben Sayers to his wife.</p> <p>The cause came on to be finally heard on the 8th day of January 1873, when the court decreed that the deed from Reuben Sayers to bis wife was fraudulent ■and void as to his creditors; and it appearing from the evidence that the judgments, which were liens upon the land, could not be paid out of the rents in five .years, it was further decreed that unless Reuben Sayers, or some one for him, should pay off said debts before the 1st day of the next February, a commissioner named, after advertising, &c., should proceed ■to sell at public auction upon the premises the said land, or so much thereof as would be sufficient to pay off said debts, &c., upon a credit of one, two and three years, in equal instalments, except as to a sum sufficient to pay the costs of suit and expenses of sale, which should be for cash. From this decree Comer and wife and the other heirs of Mrs. Bayei’s obtained an appeal to the Circuit court of Pulaski county, where the said decree was affirmed; and they then obtained an appeal to this court.</p>

This was a suit in equity in the Circuit court of Smyth county, and afterwards transferred to the Circuit court of Wythe, brought in May 1870 by John T. Sprinkle and others, the heirs at law and next of kin of Archibald B. Sprinkle, deceased, against Nathaniel Hayworth and others, the heirs at law and next of kin of Phoebe Sprinkle, deceased, late wife of Archibald B. Sprinkle, to set up and establish an alleged parol agreement between said Archibald B. Sprinkle and Phcebe…

<p>On the 24th of April 1858 Leroy Campbell sued out of the clerk’s office of the Circuit court of Roanoke county summonses against Wm. Gish, George Gish, Wm. H. Fleshman, David H. Gish and Robert Bush, jointly in debt for $3,000, which were directed severally to the sheriffs of the counties of Roanoke, Bedford and Franklin; that directed to Roanoke was endorsed, “ Serve only on George Gish and David H. Gish,” and was returned executed; that directed to Bedford was endorsed, “Serve only on William H. Fleshman,” and was returned executed on him; that directed to Franklin was endorsed, “ Serve only on Robert Bush,” and not being executed, an alias summons was directed to the sheriff of Franklin, endorsed in the same way, and returned executed on Bush. There was no other summons issued in the case; none was served on William Gish; nor was any return of any kind made as to him on any process. The declaration filed in the case avers that the said William Gish, George Gish, William H. Fleshman, David H. Gish, and Robert Bush had, by their writing obligatory, sealed with their seals, and dated the 22d of November 1857, bound themselves, &e., to pay the plaintiff,one day afterdate, the sum of $3,000; and the paper of which profert is made, purports to be the writing obligatory of said parties, sealed with their seals, and is in the form of what is commonly called a single bill. Office judgments were entered and confirmed at rules against all the parties on whom process had been executed; but no order was ever made as to William Gish, or any further step taken against him.</p> <p>At the subsequent term of the court, after the office judgment was confirmed, George Gish, William H. Fleshman and David H. Gish, severally filed pleas of non est factum; and they jointly with Bush filed a plea of usury; to which several pleas the plaintiff replied generally; and issues were joined. At the ensuing term of the court a jury was empannelled to try all the issues joined in the case; and, after retiring, returned into court with a verdict for the defendants, George Gish, William H. Fleshman and David H. Gish, on their pleas of non est factum; which was received and entered by the court; and the jury declaring their inability to agree upon a verdict on the plea of usury, a juror was withdrawn, the jury discharged, and the ease continued as to Bush; and a judgment was rendered for George Gish, William H. Fleshman and David H. Gish, on the verdict in their favor on the plea of non est factum.</p> <p>At the August term 1859, on the motion of the defendant Bush, the cause was continued, and at the March term 1860 it was continued generally. At the August term 1860 another jury was empannelled to try the “ issue joined,” which returned a general verdict for the plaintiff for $3,000, the debt in the declaration mentioned, with interest from the 23d of November 1860. Bush thereupon moved to set aside this verdict; which motion was overruled. He then assigned errors in arrest of judgment, and moved to arrest the judgment on the said verdict, on the following grounds:</p> <p>1st. The action is joint against William Gish, George Gish, William H. Fleshman, Robert Bush and David H. Gish; and upon pleas of non est factum, filed by George Gish, William H. Fleshman and David H. Gish, by the verdict of the jury, it has been established that it is not the bond of said defendants; and as the declaration alleges a joint contract, no judgment can be given against the defendant, Robert Bush. gd. Neither Robert Bush or William Gish, at the time of the institution of the suit, were residents of the county of Roanoke, or since have been residents of said county; but at that time William Gish had fled from the country, having previously to his flight resided in the county of Bedford; and Robert Bush then was, and still is, a resident of the county of Franklin. And the process was not served on Robert Bush, in the county of Roanoke; so that the court has no jurisdiction of the action on the bond, since it has been ascertained that it is not the bond of the other defendants; and this objection could not have been taken by plea in abatement, as George Gish and David H. Gish, who were sued along with the other parties, were, at the time of the institution of the suit, residents of the county of Roanoke.</p> <p>But the court overruled the motion to arrest the judgment, and rendered a judgment according to the verdict. Bush thereupon applied to a judge of this court for a supersedeas; which was allowed.</p>

<p>This was a suit in equity in the Circuit court of Wise county, brought in August 1872, by Levi Hobaek against Isaac and Hiram Kilgore, to enforce a contract for the sale of a tract of land by Isaac Kilgore to Hoback. The plaintiff in his bill charged that Isaac Kilgore had sold him the land, and assured him that the tract contained one hundred and twenty-seven and a half acres, for which he was to pay him $1,400; which he had paid. That he had since had the land surveyed, and the tract in fact contained but eighty-one acres and a fraction. He therefore claimed compensation for the deficiency.</p> <p>The defendant, Isaac Kilgore, in his answer, insisted that he sold the land by the boundaries, and denied that he gave assurance of any particular quantity.</p> <p>It appears from the evidence, that Isaac Kilgore had purchased the land from his brother Hiram Kilgore, in 1856, and they estimated that there was in the tract one hundred and twenty-seven and a half acres; and that he expressed strongly to Hoback, at the time of the sale to him, that he believed, as he no doubt did believe, that there was that quantity of land; and that Hoback purchased supposing there was that quantity.</p> <p>It appeared further, that Isaac Kilgore had, after his purchase of the land, put improvements on it, consisting of a dwelling-house, a barn and other outhouses, also a tan-yard and a grist-mill.</p> <p>And it also appeared, that at the time of the sale to Hoback, the title to the land was in the Commonwealth.</p> <p>The cause came on to be finally heard on the 4th day of April 1874, when the court held that the sale to the plaintiff was a sale in gross, and that Isaac Kilgore was not liable to account for any deficiency in the estimated number of acres of the land; and decreeing that Isaac and Hiram Kilgore, should convey to the plaintiff all their right, interest and claim to the land, with special warranty, gave them their costs. From this decree Hoback applied to this court for an appeal; which was allowed.</p>

In May 1868 James Fields brought a suit in the Circuit court of Russell county against A. L. Hendricks, to enforce a mechanics’ lien.

<p>This was a suit in equity in the Circuit court of Clarke county, brought in August 1866 by Colin C. Porter against the administrator with the will annexed of Buckner Ashby, deceased, and others claiming under him, to subject the estate of said Ashby to pay a (jebt due to the plaintiff from Buckner Ashby & Sons, who had been partners. In ^he progress of the cause, under an order of the court, a commissioner reported an account of debts due from Buckner Ashby individually, and also of debts due from Buckner Ashby & Sons as partners. It does not appear that there was any dispute about any of the debts reported, except that of the plaintiff. As to that, the questions were whether it was or was not a Confederate 'debt; and if a Confederate debt whether it should be scaled as of the date of the note, or as of the time it fell due. There was also a further question, whether being a partnership debt it could be decreed to be paid out of the estate of Buckner Ashby, until his individual debts were paid.</p> <p>The cause came on to be heard on the 11th of November 1872, when the court held that the plaintiff’s debt was to be scaled as of the day of the date of the note, and made a decree in favor of him and of many other creditors of both classes. Prom this decree Buckner Ashby’s adm’ors, and the other parties in the same interest, obtained an appeal from a judge of this-court. The case is stated by Judge. Moricure in his opinion.</p>

This is art action of debt in the Circuit court of Rockingham county, brought by William R. Warren, adm’r c. t. a. of Milly Rice, deceased, against Mary B. Brown, upon two bonds executed by said Mary B. Brown to said Milly Rice. The defendant filed two special pleas, to which the plaintiff demurred, and the demurrer was sustained; and there was judgment in favor of the plaintiff'. Mrs. Brown thereupon applied to this court for a supersedeas; which was allowed.

This was an appeal from the judgment of the Circuit court of Rockbridge county, rejecting certain papers which had been propounded as the will of J. Jackson McBride. It appears from the evidence, that some time before the death of J. Jackson McBride, his counsel, David P. Curry, prepared a will for him; but the counsel had mistaken his directions as to the shares in which his property was to be divided, and it became necessary therefore to prepare another.

<p>This was a suit instituted in October 1870, in the-County court of Eoekingham, by Christina J. Ergenbright against the surviving administrator and heirs of Jacob Ammon, deceased, to have a settlement of the accounts of said Jacob Ammon, as guardian of herself and her three brothers and sister, and that his-lands might be subjected, if necessary, to pay what might be found due to them. The cause was referred to a commissioner to take the accounts; and the only question was as to a single bill or note executed to the guardian by Henry Miller and Joseph H. Kite. The County court held that Ammon’s estate was not liable for that debt; and upon appeal to the Circuit court of tbe county the decree of the County court was affirmed. Thereupon, Christina J. Ergenbright and her brothers and sister applied to a judge of this court for an appeal; which was allowed. The ease is fully stated by Judge Moncure, in his opinion.</p>

This was a suit in equity in the Circuit court of Bath county, brought in 1868 by James A. Frazier against William Frazier, Joseph Baxter and others, to set aside a sale of land made in 1863, when he was an infant. There was a decree in the cause made on the 23d of April 1874, by which the bill and amended bill of the plaintiff was dismissed; and he thereupon obtained an appeal to this court. The case is stated in the opinion of the court delivered by Judge Christian.

By deed bearing date the 18th da^ of December 1860, William W. Minor, as executor of Dabney Minor, deceased, conveyed to Bartlett A. Henson a tract of land lying on Mechunck creek, in Albemarle county; and by deed of the same date, Henson conveyed the same land to S. Y. Southall, in trust to secure the payment of four bonds of the same date as the deed, and each for $1,415.10, given by Henson to Minor as executor, for the purchase money of the •land.

In March 1863 Ellen S. McCue instituted a suit in equity in the Circuit court of Augusta county, and in her bill she set out that she was the widow of John McCue, deceased, who departed this life in April 1862, seized and possessed of a tract of land of seven hundred and eigty-nine acres, estimated to be worth $90 per acre, and also of a number of slaves and other valuable personal property.

This was an action of assumpsit in the Circuit court of Nelson county, brought by Rosser & Turner against Oliver Beirne, to recover a balance of $2,378.39, which they claimed to he due to them for constructing a road leading from the Sweet Springs in Alleghany county,. to the White Sulphur Springs in Greenbrier. There ^as a verdict and judgment for the plaintiffs; and thereupon Beirne applied to this court for a supersedeas; which was awarded.

This was a suit in equity in the Circuit court of Nelson county, brought by Frederick Gr. Peters, to subject the real estate of LaFayette Neville to satisfy the plaintiff’s judgments. Other creditors of Neville came in by petition; the land was sold by commissioners in 1860, upon a credit of one, two and three years; and in that year Peters was appointed a receiver to collect the purchase money.

In September 1869 Joseph Sipe brought a suit in uquity in the Circuit court of Rockingham county, to set aside a deed made by Peter E. Earman to secure John Carpenter and others named in the deed, certain ■debts therein named. The bill states, that in August 1867 the plaintiff recovered a judgment in the County court of Rockingham against Peter J. Earman for -$1,676.82, with interest and costs.

This was a suit in equity in the Circuit court of Augusta county, brought in October 1865, by Mary Switzer, by her next friend, against Benjamin M. Switzer, her husband, H. P. Hahn, and the two infant children of B. M. and Mary Switzer, to set aside a deed bearing date the 20th of July 1868, and duly admitted to record in the clerk’s office of the County court of Augusta, upon the certificate of the privy examination of the wife, by which Mary Switzer conveyed two tracts of…

<p>This was an action of assumpsit in the Circuit court of Frederick county, brought in September 1869 by Trotter & Brother, partners, against William J. Rea, to recover the value of certain manufactured tobacco which the plaintiffs had stored with Rea in July 1864. There was a trial of the cause in June 1872, when Rea was examined as a witness; but after the ease had been submitted to the jury to consider of their verdict,, and they had been adjourned over to the next day, one of them failed to appear, and the cause was continued. At the October term of the court the death of Rea was suggested and the suit was revived against his administratrix.</p> <p>The cause came on again to be heard in November 1873. The plaintiffs, to sustain their action, proposed to introduce John J. Williams as a witness; and the-defendants objected to him, on the ground that he was, the counsel of the plaintiffs. But the court overruled the objection; and the defendant excepted.</p> <p>In the progress of the trial the plaintiffs proved by-John J. Williams, that in January 1869 he was employed by the plaintiffs, through A. D. Trotter in person, to collect their claim against William J. Rea, and was furnished by him with the paper marked A, as, evidence of the claim, which paper was in the handwriting of Rea; and that .he in person, and as attorney for the plaintiffs, presented said claim and paper A to Rea, who admitted the paper, and that he had received the tobacco therein specified; but stated, he had sold the same for Confederate money, because of the Federal troops, and did not think he was responsible for anything but that money. After this, witness went to see Rea, and asked for an account of sales of tobacco; whereupon Rea produced a book and handed it to witness, and directed his attention to the account; when witness, with Rea’s consent first asked, copied the same; and paper C is that copy, and a correct one of said book, which remained in' Rea’s possession. That when, at a former trial of this cause, Rea was on the witness stand, said Williams, then counsel in the cause, handed said paper to Rea and asked him if he admitted it to be correct; to which he replied, he did: and thereupon the production of the book alluded to was dispensed with at the trial.</p> <p>The paper A commences:</p> <p>Received in store on account of-Trotter</p> <p>by Wm. J. Rea, July 25th, 1864.</p> <p>It then sets out, 7 boxes Oreta Brand tobacco; stating the weight of each box, and making together net 449 lbs. 4 boxes Fora; setting them out in the same way, and making net 243 lbs.</p> <p>The paper 0 was a statement of the sales of the tobacco, shewing sales for Confederate money, commencing August 2 and ending September 15—the whole amount $2,665. ‘</p> <p>The defendant objected to the introduction of these papers as evidence: but the court overruled the objection ; and the defendant excepted.</p> <p>After the evidence had been introduced the plaintiffs moved the court to give to the jury five instructions, which the court gave, with four asked for by the defendant. To the granting of the instructions asked fore by the plaintiffs and the defendant, or any, of them, -¿he defendant objected: but the court overruled the' objection; and the defendant again excepted. These exceptions are numbered from one to nine, and they are given in the opinion of the court.</p> <p>The jury found a verdict in favor of the plaintiffs for five hundred and seventy-nine dollars and seventy-five cents, with interest from July 1st, 1865. And thereupon the defendant moved the court for a new trial, on various grounds; which motion the court overruled, and rendered a judgment upon the verdict. And thereupon the defendant excepted. There was a second motion for a new trial, which was overruled; and the defendant again excepted. These exceptions are stated in the opinion of the court.</p> <p>The material facts of the case seem to be, that the plaintiffs, Trotter & Co., were the carriers of the mail in stages between Staunton and Winchester, under a contract with the Confederate government. They resided in Staunton. That they could not purchase supplies at Winchester to carry on their business with Confederate money, and they had to use other articles to get them, and among them tobacco. That, with the consent of the Confederate authorities, they, shortly prior to July 25, 1864, brought a considerable lot of tobacco to Winchester; and M. Brannon, their local agent at that place, advised them to store a part of it with a Union man and part with a Southern man, and he named John Higgins as the Southern man, and William J. Kea as the Union man. That, in consequence of this advice, plaintiffs directed Brannon to make the said arrangement with those persons for the storage of the tobacco. That, accordingly, Brannon called upon Rea, and informed him that the plaintiffs had the tobacco, and what they had been advised to do, and that he, Rea, had been recommended to the plaintiffs as a Union man, and that he came to him by the direction of the plaintiffs, and because he was such. That Rea thereupon consented to receive the tobacco. That upon Brannon reporting that fact to the plaintiffs, A. D. Trotter, one of the plaintiffs, together with Brannon and-Rutter, who was driving the plaintiff’s wagon on that night, about dark took the tobacco, less the part which they deposited with Higgins, to Rea’s warehouse, opening on the alley at the rear of his lot whereon was said Rea’s dwelling, and in a front room of which was his store-room, in which warehouse he, Rea, received in person the tobacco; and then and there wrote and delivered to Trotter a receipt for it, which is the paper A before mentioned. That for years before 1864 Rea had been traficking and trading, having a store-room and back store-room in his dwelling, and a warehouse on the alley; that he continued his business through the war, and dealt in tobacco, produce, &c., and had tobacco exposed in the windows of his store at various times whilst the Union forces were in Winchester, including the year 1864.</p> <p>In addition to the evidence of Williams, as herein-before given, the witness gave a further statement of Rea’s testimony at the former trial, viz: That he received the tobacco in question in store without making any charge for storage, and that he never intended or expected to make any charge therefor; but that nothing passed between him and the plaintiffs on the subject of such charge at any time. That in September 1864, three or four days after the 19th, when General Sheridan of the Union forces took possession of Win-Chester, Major Young, of General Sheridan’s scouts, searched Rea’s house, in which was his dwelling and store-room, as he said, for tobacco and contraband goods, and found a small piece of choice tobacco in Rea’s secretary (a piece of furniture in his dwelling), and took it, as he said, for his own use; that Rea after the tobacco was left, and before the 19th of September 1864, did meet Joseph Andrews, general stage agent for plaintiff’s line, and gave him some message about the tobacco—what the message, as stated by Rea was, the witness, Williams, could not remember; that he, Rea, sold the tobacco of plaintiffs as well as his own, because of his apprehension, after the Confederate troops burned Chambersburg, that the Union troops would be hard on Winchester.</p> <p>There is no evidence that anything was said at the time or afterwards as to the terms on which the tobaco was received by Rea. Rea proposed several times to Andrews, the general agent of the plaintiffs, to purchase the tobacco, but was told by Andrews that he had no authority to sell it. There was proof that the tobacco was sold by Rea for Confederate money and Virginia treasury notes, and that he offered tbe money to Trotter after the war.</p> <p>Upon the application of Rea’s administratrix a supersedeas was awarded.</p>

This was an action of debt in the Circuit court of the county of Amherst, brought in August 1873, by Joseph Pettyjohn against William M. Evans. The case is sufficiently stated in the opinion of the court, delivered by Judge Christian. There was a judgment for the plaintiff; and Evans obtained a supersedeas.

In August 1872 David Meade applied to the judge of the Circuit court of Clarke county for an injunction to restrain the levy of an execution upon his property, which had issued upon a judgment recovered in that court by John R. Grigsby’s administrators against R. B. Meade and the plaintiff.

<p>This was a suit in equity in the Circuit court of Eockingham county, brought in February 1870, by Alfred L. Wolfe and Sallie C. Wolfe, infants, by their next friend, against the administrator of Y. C. Ammon deceased. Ammon had been the guardian of the plaintiffs, and the bill was for an account, and payment of what might be found due.</p> <p>It appeared that Alfred L. Wolfe, the father of the plaintiffs, died in March 1858, leaving a widow and eight children, all of whom but one were minors, and the plaintiffs were the youngest of them. He left some personal property and a tract of land, which was sold under a decree of court, in February 1859, for $12,011.00, upon credits extending to January 8th, 1862. Y. C. Ammon was one of the administrators of Wolfe, and also one of the commissioners to sell the land, and he was appointed guardian of the pláin-</p> <p>A commissioner of the • court was directed to take accounts; and it appeared that the guardian had received the property of the wards. All but the last payments to him for the land seem to be in good money. The last was received in Confederate money on the 28th of April 1862; and this the commissioner scaled as of that date. The only question, on the accounts was, whether Ammon should be credited for $8,500 of Confederate borids. And this question depended upon—first, whether he had ever made the investment for his wards; and second, whether if it was made, it was a proper case for such an investment. The evidence, as well as the answer of the defendant, are stated in the opinion of the court.</p> <p>The cause came on to be heard on the 26th of September 1873; when the court made a decree in favor of the plaintiff A. L. Wolfe for $2,123.41, with compound interest thereon from the 19th of July till paid, or until said A. L. Wolfe attained the age of twenty-one years, and in favor of Sarah O. Wolfe for $2,220.95, with like interest.</p> <p>This decree was rendered at the previous May term of the court, and by inadvertance was not entered of record; and it was ordered to be spread upon the records at the next term, to have the same effect in all respects as if entered at the last term.</p> <p>Upon the petition of Ammon’s administrator, an appeal was allowed to him. And after the case was brought to this court, another decree of the May term of the court, which modified the one previously pronounced, though not entered, by stopping the compound interest at the date of the death of Ammon, was produced.</p>

This was a suit in equity in the Circuit court of Botetourt county, brought in June 1866, by John W. Johnston, administrator of Wm. W. Boyd, deceased, for the purpose of having the direction of the court in the administration of the estate. Boyd died in April 1866, leaving a large estate in lands, and largely indebted both on his own account and as surety.

<p>I. A court of equity will correct a mistake, clearly proved by parol evideuce, in an agreement for tbe sale and purchase of real estate; and this, whether the contest is between the vendor and purchaser, or the vendor and creditors of the purchaser.</p>

<p>In July 1870 Emanuel Grove and Richard E. Omohunder filed their bill in the County court of Rockingham, in behalf of themselves and all other creditors of E. A. Shands, deceased, who should come in and contribute to the expense of the suit. They say that at the May term 1859 of the Circuit court of Rockingham, said Grove, suing for the benefit of said Omohunder, recovered a judgment against E. A. Shands for $760.25, with interest on $753, part thereof, from the 15th of December 1855, and $3.36; and they exhibit a copy of the judgment certified by then clerk, and say the original record of the judgment was burned, with the order books, &c., by the United States troops in 1864. That execution issued on this judgment in June 1859, but was never levied, and no part of it had been paid. That said judgment was duly docketed in 1861. That Shands died in 1861, leaving a widow and several children, and leaving a will which was admitted to record, and his widow qualified as executrix thereof, and took possession of his estate both real and personal. They make Mrs. Martha Shands, in her own right and as executrix of E. A. Shands, deceased, a party, and call upon her to say whether the personal estate in her hands is sufficient to pay the debt of the plaintiffs, and pray for a settlement of her accounts, an account of the debts and liabilities of the estate, that their debt may be paid, and for general relief.</p> <p>Mrs. Shands answered the bill. She says she had understood that Grove, prior to June, 1857, had some pecuniary claim against the Rockingham Turnpike Company, and transferred it to Omohunder. That said company being largely indebted, on the 13th of June 1859 conveyed its property, franchises, &e., to E. A. Shands, in trust to secure its creditors, and among others Omohunder. That subsequently some irregular proceedings were set on foot by the complainants or one' of them, in the Circuit court of Rockingham county, whereby they pretend they have obtained in the year 1858, a judgment upon said claim against the company. That they subsequently, on the 28th of December, 1858, sued out of the clerk’s office of said Circuit court, a suggestion against said E. A. Shands, founded upon said supposed judgment, whereby they sought to bring into the court of law rendering the judgment, the control of the funds and property of sa^ comPany> conveyed in trust to said Shands. They now pretend that upon this suggestion they obtained a personal judgment against said Shands, for the whole amount of their claim against the company; when in truth the said Shands, in his lifetime, never owed the complainants anything, nor has his estate since his death become liable to pay them anything. She denies that Shands owed the company anything, either before or after their deed. But how he administered that trust she presumes is not a proper enquiry in this cause, as it is drawn in question in another suit pending in the Circuit court of the county, in which the defendant and the said Omohunder are parties.</p> <p>The defendant further answers, that there is no sufficient record to show Grove’s recovery against the Rockingham Turnpike Company; nor is there any record of a judgment against E. A. Shands in favor of the complainants or either of them. That it would appear that a suggestion as a foundation of a proceeding to obtain a judgment against Shands, was sued out of the clerk’s office of the Circuit court of Rocking-ham on the 28th of December 1858; but he had neither actual nor constructive notice, so far as appears. That the sheriff’s return upon the suggestion is that he delivered and explained a copy of said suggestion to the wife of E. A. Shands, “a white woman over sixteen years of age, he not being found at his usual place of abode;” but it by no means appears by the said returns or by any other evidence, either that the wife of E. A. Shands was a member of his family, or was found at his usual place of abode. She denies the rendition and docketing of said supposed judgment against her testator, and denies that any execution, in the sense of the law, was ever issued thereon. And she claims the benefit of the statute of limita tions applicable to such cases. x x</p> <p>t Defendant admits that a considerable amount in value of réal and personal property came into her hands as executrix, but the greater part thereof was embraced in a deed of trust executed by said E. A. Shands to William D. Shands, on the 22d of March 1861, to secure certain creditors. That no sale had ever been made under this deed; and the greater part of the liabilities intended to be secured thereby have been paid off by Shands in his lifetime, or defendant since his death; some of them however remain unsatisfied—that to Thomas J. Michie, and perhaps some others; she thinks the personal property, including debts, which has or will come into her hands, will be amply sufficient to pay the remaining indebtedness of the said estate. She insists that at most, Shands was only a security for the plaintiff’s debt, and that the company, or at least their trustee who had been substituted in the place of Shands, should be a party.</p> <p>It was in proof that the order books of the court and other papers in the office, had been destroyed by the United States troops in 1864; but there were found in the clerk’s office some of the papers in the case of Grove for the use of Omohunder, against the Rocking-ham Turnpike Company. These were the writ with the return of the sheriff of the service thereof, the declaration, and the negotiable note on which the action was founded, with the protest for non-payment and proof of notice; and on the writ was an endorsement of the name of the case, the initials of plaintiff’s counsel, the nature of the action, and the proceedings in the case to the judgment. There were also a summons to E. A. Shands, on a suggestion stating that Grove, for the use of Omohunder, had sued out, &c., a writ of fieri fiadas against the Rockingham Turnpike Q0mpany for, &e., reciting the judgment, &c. And on this summons there is a return of the . sheriff in the words stated in the answer. Upon this summons there are similar endorsements of the names of the parties and counsel, the nature of the case, and the proceedings in the cause to the judgment. And there is a copy of an execution upon this judgment, against the goods, &c., of E. A. Shands, which is endorsed—“to lie.”</p> <p>It was in proof by one of the counsel who brought the suit of Grove against the Rockingham Turnpike-Company, that after that judgment had been recovered, Shands requested him to sue out a suggestion upon the judgment against him; that he was indebted to the company, or had money belonging to it in his hands; witness did not remember which. Witness had the suggestion issued, Mr. Shands appeared in court in-person and admitted his liability, and that witness took a judgment against him.</p> <p>In August. 1870 Mrs. Shands was directed to settle her accounts as executrix before a commissioner of the court; and the commissioner returned his report, bringing down the account to March 1871; at which date he reported the executrix to be indebted to the estate $1,969.83, of which $127.74 was interest. And that there were yet in her hands to be accounted for, county bonds $8,500, judgment v. county of Rocking-ham $6,500, and two other debts due to the estate from individuals, the amounts of which were not given.</p> <p>In October 1873 the report was by consent recommitted to the commissioner, to allow the executrix to prove, if she could, some extraordinary charges sustained by her in the settlement of the estate of Shands. And in August 1874, in vacation, on the motion of Andrew J. Rader, it was decreed that a commissioner of the court should take an account of the debts and liabilities of the estate of Shands, and their priorities, if any, of what real estate said Shands died possessed, and any other and further reports as any party in interest may require; four weeks’ notice to be given by publication.</p> <p>The cause came on to he heard on the 3d of October 1874; when, nothing having been done under either of the two last orders, the court set them aside; and there being no exception to the report of the commissioner, it was confirmed, and there was a decree that Grove, for the benefit of Omohunder should recover of the defendant, Martha Shands, the sum of $763.36, with interest, &c. And thereupon Mrs. Shands, in her own right and as executrix of E. A. Shands, applied to this court for an appeal; which was allowed.</p>

At the August term 1873 of the County court of Rockingham, on the motion of the Washington, Cincinnati and St. Louis Narrow Gauge Railroad Company, commissioners were appointed to ascertain the (Jamageg which would be sustained by D. M. Switzer and others by the passage of the road of the company through their lands. In October 1878, the commissioners made their report, by which they fixed the amount to be received by Switzer at $1,250.

This was a suit in equity in the Circuit court of Rockingham county, brought in December 1872, by George Harnsberger and H. K. Trout, executors of Jacob Harnsberger, deceased, against Samuel Simmons, John H. Moore and others, to subject a tract of land sold by the executors to Samuel Simmons, and by Simmons afterwards sold to the other parties.

<p>Some time before December 1860, Dr. EL EL McGuire purchased a tract of laud of about one hundred and seventy acres, lying in the 'county of Clarke, of one or more of the heirs of David Funsten, deceased. He seems to have paid the purchase money, except a sum retained to meet the dower interest of Mrs. Funsten in the land. In December 1860 he sold the land Isaac Pidgeon, for twenty-five dollars per acre, in payments bearing interest, of $600 a year for five years> an<3 the balance of the pui’chase money to be divided into five annual payments, to commence when ‘the first five ended; and a deed was to be executed when the purchase money was paid. Pidgeon was put into possession of the land in January 1861, and executed his notes for the several payments, and in January 1862 he paid off the first note. He continued in possession of the land by himself, or those claiming under him, down to 1865, without making any further payment. In September 1865 Dr. McGuire gave a written notice to Pidgeon that if his notes then due were not paid in ninety days he would proceed to take possession of the farm; and he seems to have done it.</p> <p>In August 1867 Dr. McGuire entered into a written contract with J. L. Cross to sell to him the land for the sum of $5,500, payable $500 in cash, $1,000 on the 1st of March 1868, $500 on the 1st of September 1868, with interest from the 1st of March 1868, $500 on the 1st of March 1869, with like interest, and $500 on the 1st of September 1869, with like interest, and $400 on the 1st of March 1870, with like interest, and $2,100 to be retained as a lien on the land for and during the life of Mrs. Funsten, widow of David Funsten, deceased, on which interest was to be paid annually, on the 1st of January during her life, and at her death to be paid in two instalments to the heirs of David Funsten; all of which deferred payments were to be secured by deed of trust on the land when the deed conveying the same was made to Cross.</p> <p>In March 1868 Cross was put in possession of the land, which was occupied by his father and his family, he, himself, living in Florida, where he was a professor in a school. He paid the cash payment of $500, and in July 1868 he paid $425.</p> <p>It seems that Dr. McGuire did not receive a deed conveying him the land from the heirs of David Funsten until the 5th of May 1868, and on the same day he conveyed the same to George W. Ward in trust to secure the payment of the sum of $1,265.45, with interest from the 80th of August 1856, to the heirs of David Funsten; and it was provided that if the said McGuire did not pay this debt and interest within six months after demand made, Ward, the trustee, should proceed to sell the land at public auction, and out of the proceeds pay the debt and expenses, and the remainder pay over to H. H. McGuire.</p> <p>Dr. McGuire not having paid the debt when demanded, Ward proceeded to sell the land on the premises, when it was purchased- by James Marshall, who complied with the terms of the sale, and was put into possession of the land.</p> <p>In November 1868 Isaac Pidgeon filed his bill in the Gircuit court of Clarke county, which was afterwards removed to the Circuit court of Frederick, in which he set out his purchase of the land from Dr. McGuire, and his payment of $636 of the purchase money, the taking possession of the land by Dr. McGuire in 1865, and his sale to Cross; and he insisted that he was entitled, if Cross took the land, to have the difference between what he was to pay and what Cross was to pay for the land, or to have the land himself, and to pay the balance of the purchase money which he owed.</p> <p>And, making Dr. McGuire and Cross defendants, he prayed that he might have what he had insisted on, ■and for general relief.</p> <p>In June 1870 Pidgeon amended his bill, and made George W. Ward and James Marshall defendants; stated the sale by Ward to Marshall, and charged that they bad actual or constructive notice of his equitablo or, if the sale and purchase was lawful, he was entiÜeá to Pa^ kis claim out of the funds in their-hands.</p> <p>Cross answered the original and amended bill. He-set out his purchase of the land in 1867 from Dr. McGuire, and his payments of $500 and $425; and having been deprived of his farm, fairly purchased, he-prays that Ward, the trustee, and Marshall, the purchaser, may be required to repay him out of the-purchase money of the land, after discharging the debt to Mrs. Eunsten, the amount he had paid McGuire. He filed with his answer a paper under seal, executed-by Dr. McGuire, dated the 9th of September 1870, by which McGuire acknowledged that, upon settlement,, he owed Cross $778.36.</p> <p>Marshall and Ward answered. Marshall said he .purchased the land at the sale made by Ward; paid the-cash payment of $1,412.65, and gave his bonds for the deferred payments, and was put in possession of the land; and he avers that he had no actual notice of the plaintiff’s equity, nor, so far as he knows or believes, was there any constructive notice effecting him at the date of said purchase.</p> <p>Ward states his sale of the land to Marshall under-the deed of trust for $4,238, of which one-third was-paid in cash, and the balance was to be on a credit of one and two years. And he says that Dr. McGuire on the 28th of April 1870 assigned to Edward M. Tilball, in trust to secure certain debts due to James Marshall and W. D. McGuire by said Dr. McGuire, the balance-due to him, after payment of his liability under the aforesaid deed of trust; notice of which assignment was accepted by him (Ward) on the 2d of May 1870. And he exhibits the assignment. He denies having actual notice of the plaintiff’s equitable lien as charged in the bill; and says he did not know the plaintiff had filed his bill until January 1871.</p> <p>A number of witnesses were examined in the case, an account of the claim of the plaintiff was taken, to which there were various exceptions, and the cause came on to be heard, when the court refused to confirm the report, and making a statement of Pidgeon’s claim, rendered a decree in his favor for $846.97, with interest from the 1st of April I860, and in favor of Cross for $778.36, with interest from the 9th of September 1870; and it appearing that the fund had been paid under a previous order in the cause, to the general receiver of the court, he was directed to pay first to Pidgeon the amount due to Pidgeon, and then to Cross the amount due to him. Prom this decree Marshall obtained an appeal to this court; and in October 1873 it was reversed. And the court says the bill of Pidgeon should have been dismissed; but they send the cause back with leave to Cross to file a cross-bill, for the purpose of litigating between himself and Marshall, his co-defendant, their respective equities, and their priorities with respect to the said tract of land sold by McGuire to Cross, and afterwards purchased by Marshall at the sale made by "Ward, trustee.</p> <p>When the cause went back Cross filed his cross-bill. He set out his purchase of the land from Dr. McGuire, and his payments as before stated. That he purchased the farm as a home for his father. He says he lived in Plorida, and only returned to Virginia during his vacations in the summer. That in the summer of 1868, and after he had paid $425 to Dr. McGuire, he heard of the claim of Pidgeon, which alarmed him. He was very poor, his only means being his salary as professor. He was purchasing the farm as a home for his father, and he was much disturbed at the prospect being disappointed, as well as suffering pecuniary 1°SS- Nothing however was done whilst he was here, That he returned to Florida, and did not come back until July 1869. In the meantime Dr. McGuire had gotten his title through the Circuit court of Clarke county; but he had gotten it with a deed of trust for the benefit of Mrs. Funsten, which could be closed at any time, not only necessitating him, Cross, to pay the debt long prior to the terms of the agreement with Dr. McGuire, but changing the whole character of the agreement itself, by reason of that debt being larger than was then supposed. Moreover Gardiner, a purchaser of twenty-two acres of the land from Pidgeon, was still upon it, and Pidgeon still asserted his claim. Under these circumstances he was afraid to pay any more money. So matters rested; and when he returned again to Virginia, in July 1870, he found that the land had been sold by Ward, trustee, for the benefit of Mrs. Funsten.</p> <p>He further says, he is informed and verily believes, that it never was the intention of Dr. McGuire to assign to Mr. Marshall, &c., anything more than the surplus (which is a considerable amount) of the fund arising from the land sold by the trustee, Ward, over and above what was required to satisfy the Funsten lien and also plaintiffs’ just claim to have refunded to him the amount paid on his purchase from Dr. McGuire; and this, he insists, abundantly appears from the face of the assignment itself, considered in connection with the facts of the case, especially the adjustment and settlement between Dr. McGuire and the plaintiff of the exact balance due to the plaintiff of the date September 9th, 1870. But however this may be, he contends that such a simple and indefinite assignment (and that too in trust, without the instrument having been recorded) cannot be made to plaintiff’s paramount claim and lien upon the surplus fund in the hands, or rather to come into the hands, of the trustee under the Funsten lien. And making Dr. McGuire, James Marshall, Titball, trustee in the alleged assignment, and "Ward, defendants, he prays that he may have a decree for the amount of his claim, as ascertained in the cause, out of the trust fund now under the control of the court, and for general relief.</p> <p>Marshall answered .the cross-bill. He referred to the record in the original case of Pidgeon v. McGuire, especially to the answer of Ward and his own, and to the assignment by McGuire to Titball. He says, he knows nothing in the world of the matters alleged in the bill, whether correct or not, and he therefore calls for full proof of each and every allegation of fact therein made. He avers that he became the purchaser of the land referred to at a sale by G. W. Ward, trustee in a deed of trust from Dr. McGuire, a copy of which he files. That the records of Clarke county disclosed the fact, that Dr. McGuire had acquired the legal title to the land only on the day this deed was made by him. He denies that he had any actual notice of any prior equities in or to said land or its proceeds; and he does not believe he had any constructive notice of such equity. The deed of trust provides that any residue, after the debts secured, shall be paid over to said Dr. McGuire; of this residue-respondent, after his purchase, took in good faith and innocence the assignment before referred to. Certainly respondent knew nothing of the alleged claim of Mr. Cross: the records of Clarke county furnished no notice; the trustee, George W. Ward, knew nothing of it, as would appear from his acknowledgment notice of the assignment.</p> <p>Ward was examined as a witness. He says, the debt for which the trust was executed became due was not paid; and he advertised the property to be sold, the first time, he thinks, in September 1869, to be sold on the premises. He went to the place of sale, and found Mr. James Cross there, and also his son, as he supposed, in possession of the property. The property was not sold, for want of bidders. He afterwards advertised the property to be sold in October 1869, he thinks, at which time a sale was made to Hr. William McGuire, who bought for James Marshall. He went to Winchester, and Mr. Marshall would not comply with the terms of sale, pay the cash payment, until witness gave him possession. Witness saw Mr. James Cross, and asked him to give possession, which he declined doing; and witness instituted proceedings in Clarke county, where the land lies, to turn him off. After some one or two months, witness found that they claimed that the suit had been improperly brought, and the proceedings had to be renewed; and about the last of March or first of April 1870 possession was given him, and Mr. Marshall complied with the terms of sale and took possession.</p> <p>The cause came on to be heard on the 13th of November 1874; when the court held that Cross was entitled to receive, out of the fund in the hands of the receiver of the court, the sum of $778.36, with interest thereon from the 9th of September 1870, and his costs; and the receiver was directed to pay to him that amount, and to pay the residue of the fund to Titball, trustee under the assignment in trust of April 28th, 1870, for the benefit of James Marshall, &c. And from this decree Marshall applied to this court for an appeal; which was allowed.</p>

This was an action of debt in the Circuit court of' Rockingham county, brought by Daniel Miller & Co. of Baltimore, against Coffman & Bruffy, partners, as makers, and E. & D. W. Coffman, as endorsers of a negotiable note for $2,129.85, dated the 15th of June-1869, and payable the 1st day of June 1870 at the First Rational Bank of Harrisonburg, in Virginia. The defendants pleaded payment and usury, on which pleas, issues were made up.

<p>By deed bearing date tbe 18th day of April, 1868, Beverly Randolph and his wife, in consideration of the sum of $7,542.50, conveyed, with general warranty, to J". M. Cobb, a tract of land in the county of Clarke. And by deed of the same date Cobb and wife conveyed the same land to D. H. McGuire, to secure the payment of several sums of money, each for the sum of $1,385.62-|-, with interest payable annually from the 1st of March, 1868, and due respectively on the 1st of September in the years 1869, 1870, 1871 and 1872. Both of these deeds were acknowledged before the same justices of the peace on the 6th day of July 1868, and the deed of trust was admitted to record on the 8th of the same month; but the deed to Cobb, though delivered to him at the time of its acknowledgment, was not put on record until the 10th of March 1869.</p> <p>At the July term 1868 of the County court of Clarke, Duval, Keigler & Co. recovered a judgment against Beverly Randolph for $631.77, with six per cent, interest thereon, from April 12th 1865 until paid, and $8.46 costs. This judgment was docketed on the 1st of September following; and though an execution of fieri facias was sued out on it, it was not taken from the office.</p> <p>The bond of Cobb due in 1869 was assigned to James B. Russell, and was paid by Cobb. The second due in 1870, was assigned some time prior to March 1st 1869 to R. B. "Wolfe, and considerable payments were made ■on it by Cobb, to the administratrix of Wolfe. The third bond payable in 1871, was assigned on the 1st of March 1869 to Baker & Co., and Cobb made some payments on it. And about the 21st of September 1869, the fourth bond due in 1872, was assigned by Randolph to James B. Russell; and on that there were only some payments of interest.</p> <p>This last bond not having been paid when it fell due, the trustee in the deed of trust advertised the land for sale; and thereupon Cobb obtained from the judge of the Circuit court of Clarke county an injunction. And he afterwards, in May 1878, upon his own application, was declared a bankrupt, in the District court of the Western District of Virginia, held at Harrison-burg. /</p> <p>In August 1873, James B. Russell filed his petition in Cobb’s proceeding in bankruptcy, in which he set out the foregoing facts, aud also that Cobb, after he had been declared a bankrupt, had filed an amended bill, in which he stated that Duval, Keigler & Co. had instituted proceedings and had obtained a decree for the sale of twenty acres of land of Beverly Randolph; that their judgment constituted the first lien on his land which he would have a right to pay off out of his purchase money to Beverly Randolph remaining unpaid, and that no sale of his land could be properly made until the twenty acres of land was sold and the proceeds appliéd to the claim of Duval, Keigler & Co.</p> <p>The prayer of the petition was that Cobb might be restrained from any further proceedings in the State court; that the court would settle the amounts and respective priorities of the lien and other debts of Cobb, whether said liens have been proved in bankruptcy or not; that the land of Cobb might be speedily sold, &c. Cobb and his assignee in bankruptcy, Wolfe’s administratrix, Baker & Co., and Duval, Keigler & Co. were made defendants to the petition.</p> <p>Hpon the filing of this petition the judge made an order restraining the proceedings in the State courts, and directing the assignee to take the necessary steps to sell the bankrupt’s lands.</p> <p>In October 1873, the cause came on to be heard, when the court ascertained the liens on the lands of Cobb to be as follows: First, the judgment in favor of Duval, Keigler & Co. for $681.77, with interest, &c.; but there being an unsold tract of land of Beverly Randolph, which had been decreed by the Circuit court to be subject to the payment thereof, said claim was to be credited by whatever might be derived from the sale of said tract of land; second, the claim of Wolfe’s administratrix; third the claim of Baker & Co.; and fourth, the claim of Russell. The amount of each of these claims was set out in the decree, and commissioners were appointed to sell the land of Cobb embraced in the deed of trust, upon terms stated in the decree.</p> <p>In December 1873 the commissioners returned their report; in which they stated that the land had been sold, and purchased by James B. Russell, at the price of $3,100. And on the 12th of February the court made a decree confirming the report, and directed the commissioners, out of the cash payment for the land, to pay the expenses of sale, and to hold the remainder thereof until it shall be more definitely ascertained, the exact amount of this fund to which Duval, Keigler & Co. will be entitled, as indicated in the former decree ; it being suggested to the court, that there has been a sale of the land which they were required to exhaust before they could share in this fund, hut said sale has not been acted on by the Circuit court of Clarke county.</p> <p>The commissioners made their .final report, showing the collection of all the purchase money of the land, and the payment to Russell as assignee of W.olfe’s administratrix of $551.58, and as assignee of Baker & Co. of $1.241.69—these sums being the amount of their claims—and to Russell $1,094.75, in part of his claim. And the cause came on to be finally heard on the 2nd of April 1874; and the court referring to its former decrees directing the purchase money to be retained until the court could determine whether Duval, Keigler & Co. or their assignees, by virtue of their judgment should be entitled to any portion of the proceeds-of the sale of lands of James M. Cobb, sold under decree in this cause; and it now appearing to the court, that in addition to the land of Beverly Randolph, referred to in the former decrees in this cause, there is personal property of the said Beverly Randolph which may be subjected to the payment of said debt, one or both sources being sufficient for the payment of the same; and the said judgment being a debt of Beverly Randolph, and only binding upon the land of J. M. Cobb, in case it cannot be made out of the personal property of said Randolph, or of land sold by him since the sale to Cobb, it was decreed that no part of' the fund derived from the sale of the land of J. M. Cobb, for distribution in this cause, should be applied to the satisfaction of the judgment of Duval, Keigler &■ Co. or their assignee; but the same should be applied, after paying the costs, to the satisfaction of the debts of Wolfe’s administratrix, Baker & Co. and James B. Russell, as ascertained by the decree of the 15th of October 1873; and the report of the commissioner was confirmed.</p> <p>In January 1874 James B. Russell instituted his suit in equity in the Circuit court of Clarke county, against Beverly Randolph and' Mary C. his wife, and R. P. Page, trustee, and their five children, four of whom were infants, and Duval, Keigler & Co. In his bill he stated the judgment of Duval, Keigler & Co., and that on the 10th of December 1873 they assigned the said judgment to him. That on the 17th of March 1871 Beverly Randolph executed a declaration of homestead, and the same was admitted to record in the clerk’s office of the County court of Clarke on the 29th of August 1871. This declaration embraced certain personal property therein described as “being all the personal property of which I, the said Beverly Randolph, am possessed.” That on the 10th of August 1871 said Randolph, by deed recorded in the said clerk’s office on the 29th of the same month, conveyed to R. Powell Page, trustee, for the benefit of Mrs. Randolph and her children, certain personal property, described as being in part the same that was embraced in the deed of homestead exemption. That the consideration of this conveyance is, by its terms, “because of the fact recited, that Beverly Randolph had, by a declaration of homestead, set apart and consecrated as free from levy, &c., for or on account of any debt he might owe, and for the farther consideration of one dollar.” Copies of these deeds were filed with the bill. He stated, that he was induced to purchase the judgment of Duval, Keigler & Co. by reason of its being complicated with other debts due to him, which rendered it very important that he should be able to control it.</p> <p>The prayer of the hill was for an injunction to preserve the property, and that the said deeds might be set aside, and that the said personal property, being all the personal property of which Beverly Randolph was possessed, might be sold and applied to the payment of plaintiff’s debt, and for general relief.</p> <p>In February 1874 Beverly Randolph answered the bill. He referred to the proceedings in the cases in the Circuit and the Bankrupt courts. And he referred to another case in the Circuit court of Clarke county, in which the tract of twenty acres of land, referred to íd the decree of the Bankrupt court, had been sold and purchased by Bussell, and the proceeds of the sale had been decreed to be applied to the satisfaction 0f the judgment of Duval, Keigler & Co. And he submits whether the said judgment is not now, and was not at the date of the assignment thereof to the plaintiff, fully paid off' and discharged; whether the actual sale of the several tracts of land upon which the said judgment was a lien, the confirmation of said sales, the judicial ascertainment of the liens of said judgment, and the decree applying the funds in the hands of the court to the payment of said judgment, is not an actual legal satisfaction thereof; and whether, these lands having been sold for the purpose, this complainant can now, or at any time, by execution upon said judgment, or otherwise, subject any other property to the satisfaction of said judgment.</p> <p>It was agreed between Bussell and Bandolph, by their counsel, that the cause should be submitted upon the bill and answer; that the allegation of matters of record should be taken as true, except when the same was contradicted by the records themselves. The allegation of the bill, as to the assignment of the judgment to Bussell, the conveyance of the personal property to Page, trustee, the consideration therefor, and the identity of the property conveyed, was admitted to be true.</p> <p>The cause came on to be finally heard on the 3d of March 1874; when the court dissolved the injunction and dismissed the f>ill as to Beverly Bandolph with costs. But upon the application of Bussell, and with the consent of Bandolph, the cause was retained for a reconsideration and review of this decree by a decree to be made in vacation. And on the 30th of May 1874 the court dissolved the injunction and dismissed the bill as to all the defendants, with costs. Russell thereupon applied to a judge of this court for an ■appeal; which was allowed.</p>

<p>This was a bill in the Circuit court of Shenandoah county, by Leonidas Triplett, to enjoin a judgment for $1,635.45 with interest, recovered against him by Lemuel Allen, upon a bond given by Triplett to Allen for part of the price of two tracts of land sold by Allen to Triplett. The grounds relied on in the bill for an injunction, were that the land was sold by the acre, and there was a deficiency in the quantity sold; and that Allen had conveyed to Triplett a right of way from one tract to the other over the land of Tiphen W. Allen; which right of way he did not possess. The injunction was awarded as to $1,000 of the judgment.</p> <p>Allen answered the bill. He denied that the sale of the lands was by the acre, and insisted that it was a sale in gross. He denied that he conveyed to Triplett right of way except that mentioned and reserved him in his father’s will. If Tiphen W. Allen has refused to permit complainant to enjoy said right of way as alleged, as to which he, Allen, is not advised, he is not responsible for the fact.</p> <p>A number of witnesses were examined as to the circumstances attending the contract between Allen and Triplett, for the sale and purchase of the land; and the cause coming on to he heard on the 25th of August 1874, the court dissolved the injunction and dismissed the bill with costs. And thereupon Triplett obtained an appeal to this court. The facts are stated by Judge Christian in his opinion.</p>

In 1858 a suit in equity was instituted in the Circuit court of Augusta, by Nelson’s widow and others against Nelson’s infant heirs, for the sale of a tract of land in which they were the joint owners; and a decree was made in the cause appointing a commissioner to make the sale. In February 1859 a private sale of the land was made to Jacob Myers by one of the adult parties, and this sale was reported to the court by the commissioner, and was confirmed.

<p>In September 1868 Hiram Coffman filed bis bill in the Circuit court of Rockingham county, in which he stated, that in the year 1857 he sold to John Hiswander a lot of ground in the town of Dayton, in said county, for the sum of two hundred and seventy-six dollars, to be paid on the 1st of April 1858. That it was a verbal contract never reduced to writing until the 1st of April 1861; but Uiswander took possession of the lot, and built a house upon it, enclosed and made other improvements thereon.</p> <p>He further states that Hiswander qualified as the gUardian of his niece Miss Lucy Jane Williams, and gave bond with plaintiff and two others as his sureties, and that as such guardian he received $1,700, for which his sureties are still liable, as plaintiff is advised that no part of said money has been paid to said Lucy. That plaintiff is also His wander’s security on a bond to Harvey Kyle for $298.83, with interest from the 21st of June 1859, which also remains unpaid.</p> <p>He further states that in view of these facts and of the unsettled condition of the country in the spring of 1861, plaintiff required Hiswander to pay these debts, and he being unable to pay up, they on the 1st of April 1861, entered into a written contract, in which plaintiff’s vendor’s lien and his aforesaid liabilities are fully set out, and their payment stipulated for; and in which it is provided that the legal and equitable title to said house and lot should remain with the plaintiff until the lien and debts aforesaid were fully paid, and the plaintiff relieved from all liability as such surety.</p> <p>He states that Hiswander is insolvent and has gone into bankruptcy. And he makes him and his assignee parties defendants, and prays for a sale of the house and lot; that the purchase money due to himself be first paid out of the proceeds of sale, and that the balance be applied to the satisfaction of the debts for which plaintiff is surety.</p> <p>The agreement of April 1st 1861, which is under seal, was filed with the bill. It recites the verbal agreement of 1857, as stated in the bill, and that if the money was not paid on the 1st of April, 1858, the agreement was to be null and void; and that said Hiswander had wholly failed to pay the purchase money, but took possession of tbe lot and built a house thereon, and desires to be secured in the possession of said lot and buildings. It further recites the liabilities of Coffman as security of Mswander; and then it is agreed that Coffman will make good the title to said house and lot upon the following terms and conditions, which are accepted by the said Mswander, viz: Ms-wander to pay the purchase money and interest, and to pay off his debts to Lucy Williams and Kyle, so as to relieve and wholly discharge the said Coffman from nil liability on said bonds; and then Coffman binds himself to make a good and perfect title to said Ms-wander for said house and lot. But until Coffman is fully paid off and released from his liabilities as surety as aforesaid, he is to retain the legal and equitable title to said lot.</p> <p>In October 1868 the court made a decree, directing a commissioner named, after giving notice as directed in the decree, to sell the house and lot mentioned in the bill at public auction, upon a credit of six, twelve, eighteen and twenty-four months, the purchaser to give bonds with security, bearing interest from the date of sale, and the title to be retained. And in pursuance of this decree the commissioner reported that he had sold the house and lot at public auction, when the plaintiff Coffman became the purchaser at the price of eleven hundred dollars, and had executed his bonds with security.</p> <p>At the April term 1869 of the court, David Blosser, administrator of Anna Blosser deceased, Jacob Dinkel, administrator of Harriet S. Dinkel deceased, and two others, filed their petition in the cause,' in which they set out that they were judgment creditors of John Mswander, and that their judgments had been docketed. They charge that their judgments are liens upon the land of Hiswander; and at the time their judgments were obtained Hiswander was the owner of house and lot in the town of Dayton, which lot he had purchased of Hiram Coffman in 1857, and had built on it a brick dwelling at a cost of several thousand dollars. That he had gone into bankruptcy, and had no personal estate. They refer to the bill of Coffman, and his pretensions under the agreement of April 1st, 1861. They insist that if that agreement was made on the 1st of April 1861, as it purports to have been, it is not valid against them as creditors of His-wander, it never having been recorded, and they having no knowledge of it, and Hiswander having been put in possession of the lot long before said pretended contract. They do not believe that said contract was made at the time it bears date; and they insist that their judgments are liens upon the said land, at least after the payment of the $276 and interest for purchase money, to which they ask that Coffman may be required to prove he is entitled. They make Coffman, Hiswander and his assignee defendants to their petition, ask that the two first may be required to answer, and that their judgment liens may be enforced and their debts paid out of the proceeds of the sale of the house and lot.</p> <p>Coffman answered the petition, and averred the agreement referred to was executed on the day it bears date, and was designed to secure him in the payment of the debts therein referred to, as well as the payment of the purchase money of the lot. He did not consider it necessary to record the contract, in as much as Hiswander had not even a shadow of title to said house and lot until he had complied with the terms and conditions of said contract, and held no writing of any kind to show that he had even a right to the property under any circumstances. And he says that the debts and purchase money mentioned in said contract are not yet paid.</p> <p>In October 1869 the court confirmed the report of the sale, and directed the commissioner to collect enough of the purchase money to pay the expenses of sale and his own fee and commission, and to permit Coffman to retain in his hands the balance of the purchase money until the further order of the court. Subsequently a commissioner, to whom the cause was referred, made a statement of the liens upon the land. From this statement it appeared, the purchase money, principal and interest, to January 1st, 1875, was $554.07; that the judgment in favor of Anna Blosser’s adm’or was rendered in August 1866, and, with interest up to January 1st, 1875, amounted to $1,055.56; that in favor of Harriet Dinkel’s adm’or was rendered in February 1867, and after allowing a credit upon it paid in 1874, there remained due $175.74; and that Miller’s judgment was rendered in May 1867, and there was due on that $255.86. It was admitted that in August 1870 Coffman paid, as surety for Uiswander on his guardianship, $1,100.</p> <p>The cause came on to b,e finally heard on the 8th of February 1875, when the court held that the aforesaid judgment liens were superior to the unrecorded contract; and confirming the report of these liens, it was decreed that the commissioner who made the sale of the house and lot should proceed to collect the purchase money, and after paying the costs of the suit, that he should pay first to the plaintiff Coffman $554.07, with interest on $276 from the 1st of January 1875 till paid; and second, that he should pay the residue of said purchase money to Anna Blosser’s administrator, in satisfaction of his judgment for $1,055.66, with like interest on $527.19 part thereof; and if any balance remained in his hand, that he should apply the same to the satisfaction of the other judgments mentioned in the commissioner’s report in the order of their priority; and make report to the court. And thereupon Coffman obtained an appeal to this court.</p>

In a cause pending in the Circuit court of Augusta county, in which the committee of Sarah Kratzer, a person of unsound mind, and Elizabeth Kratzer, were plaintiffs, and the said Sarah Kratzer, by her guardian ad litem was defendant, a decree was made on the 18th of June 1859, by which E. T. H. Warren was appointed a special commissioner to sell a tract of land, one-half of which Sarah Kratzer had a life estate, and Elizabeth Kratzer was entitled to one-half at once, and to…

<p>This was an appeal from the decree of the Circuit court of Rockingham county, dissolving an injunction which had been granted to eDjoin the sale under executions of fieri facias, of certain machinery in the manufactory of the Harrisonburg Lumber Manufacturing and Merchandise Company of Rockingham. This bill was filed by John T. Green, who claimed as the beneficiary in a mortgage given by the company to secure a debt for $1,045, for money loaned, and it was against a number of the creditors of the company, who had recovered judgments and sued out executions of fieri facias, which were levied on some of the machinery in the company’s factory. The case is fully stated by Judge Christian in his opinion.</p>

This case was argued in Staunton, but was decided in Richmond. In January 1871, Fisher & Brother, of Philadelphia, instituted a suit in equity, in the nature of a foreign attachment, in the Circuit court of Frederick, against Clement March, as their foreign debtor, and Richard Parker, the home defendant.

The facts in this case are set out in the opinions ot M.oneure P. and Anderson J. There was a judgment in the court below in favor of the Bank of the Old Dominion; and the defendants applied to this court for a supersedeas, which was awarded.

This ease was argued at the September term of the court at Staunton, and was decided at the November term in Richmond. The case is sufficiently stated by Judge Moncure in his opinion.

<p>This was an appeal from the decree of the Circuit. court of Pittsylvania, made in a cause depending in said court, in which the personal representative of A., gmith was plaintiff and Andrew M. Darnall and; Eliza P. his wife, Wm. J. Fulton, her trustee, and others were defendants. The bill which was filed in qggg} charged that Eobert W. Williams, deceased, was in his lifetime the husband of said Eliza P. Darnall; and that he was utterly insolvent. That the said Eliza P. held a separate estate; and that the said Eobert W. Williams and his wife Eliza P. made a joint purchase-of a crop of tobacco of A. A. Smith, for the sum of $4,153.22, in the year 1860; that said contract of sale was made on the part of said Eliza P. on the faith of her separate property. That at the time of said sale she was possessed and entitled to several tracts of land, derived under deeds, referred to, and also an interest in the estate of her father, Joseph Martin, Sr.,, deceased: The prayer of the bill is that the said Eliza P. be required to pay the claim of the plaintiff, out of the rents and profits of the said real estate, and for general relief.</p> <p>The bill was taken for confessed as to Darnall and Eliza P. his wife. Fulton the trustee, answered. He says he knows nothing of the alleged purchase of tobacco by Williams and wife from the plaintiff’s, testator; except that a crop was bought by one or both said Williams and wife; the terms of said contract he knows not. He is advised that nó such contract as that stated in the bill could have been made to bind the property mentioned in the bill, as will be seen by reference to the deeds mentioned. He does not admit that any property coming to the said Eliza P. by the will of her father, is liable to the plaintiffs demand; but is advised that it comes under the same trust as that declared in the deed from her father to Joseph Martin trustee.</p> <p>By deed bearing date the 20th of November 1849, Joseph Martin, Sr., conveyed to Joseph Martin, Jr., a tract of land of seven hundred and sixty-one acres, a number of slaves and other personal property, in trust to the sole and separate use of Eliza P. Williams, during her life, and for the education and rearing of such children as she then had or might thereafter have. And after a provision for her husband Robert W. Williams, if he survived her, it was provided, that on her death the property should pass to her children and their descendants; or if she died without descendants it should revert to his estate. There were two other conveyances of small tracts of land to a trustee upon the same trusts, which were paid for out of the rents and profits of the property first conveyed.</p> <p>By the 6th clause of his will, Joseph Martin, Sr., gives to his daughter Elizabeth, to be secured in trust to his son William Martin, an equal portion with his other children, after deducting what he had theretofore advanced to her and her husband Robert W. Williams.</p> <p>In November 1868 the court directed a commissioner to take an account of the administration of the estate of Joseph Martin, Sr., by his executor Wm Martin, so far as to enable the commissioner to report what amount and description of property was devised and bequeathed to his daughter Eliza P. (in trust or otherwise) under the 6th clause of Joseph Martin’s will; which the commissioner was directed to report to the court.</p> <p>The commissioner reported that Mrs. Darnall had received under the 6th clause of her father’s will one tract of land of three hundred and fifty acres, valued at $8 per acre, $2,800; that there was due to her from executor $994.48, of which $949.25 was principal; there were outstanding debts due to the estate of her share was $318.18T2T.</p> <p>The plaintiff proved that her testator A. A. Smith, in 1860, sold to Robert W. Williams and his wife his crop of tobacco made on two plantations; and introduced as evidence two papers, the first signed by Mrs. Williams, and the other wholly in her handwriting. The first is as follows :</p> <p>“August 7th, 1860.”</p> <p>“We Robert W. Williams and Elizabeth his wife promise and bind ourselves to convey to A. A. Smith a sufficient interest in the Peatross estate to secure him for his crop of tobacco that we have bought of him: this the day and date above named.</p> <p>(Signed) Robert W. Williams</p> <p>E. P: Williams.</p> <p>The second is as follows:</p> <p>Mr. R. W. Lyle. Dear Sir. You will please give Mr. A. A. Smith an order from me on the Peatross estate for $4,153.22, to be drawn on whosoever the court may appoint to distribute the estate.</p> <p>Yours respectfully,</p> <p>E. P. Williams.</p> <p>Homewood, October 6th, 1860.</p> <p>The only notice of the Peatross estate in the- record, is in these two papers.</p> <p>The cause came on to be heard on the 5th.of June 1872, when the court held, that the debt of the testator A. A. Smith of $4,153.22 due October 6th 1860, was contracted on the faith of the separate estate of the said E. P. Williams now E. P. Darnall, and that she de•signed to charge her separate estate with the payment of the same; and the said debt is still due; that the property devised to Wm. Martin, trustee, for the use of the said E. P. Darnall, is subject to the payment of the debt of the said plaintiff; and that the personal estate and the rents and profits of the real estate devised by the 6th clause of the will of Joseph Martin deceased, would not be sufficient to pay said debt of $4,158.22 in five years; and it was decreed that Wm. Martin do out of his own estate, pay to the plaintiff the said sum of $949.25, with interest from the 1st of January 1871 till paid, to be credited on the debt of $4,153.22 due said estate. And it was further decreed that unless the said E. P. Darnall, or some one for her, should pay the said debt of $4,153.22 with interest, within sixty days from the date of the decree, a special commissioner named, should proceed to sell the tract of land mentioned in the commissioner’s report, in the mode and upon the terms stated in the decree.</p> <p>And thereupon A. M. Darnall and Elizabeth P. his wife applied to a judge of this court for an appeal; which was allowed.</p>

In June 1871 Polly Shelton instituted a suit in equity in the Circuit court of Pittsylvania county* against the administrator of Coleman D. Bennett, deceased, and Thomas S. Jones’ adm’x and heirs. In her bill and amended bill she set out: That William.

This case was argued in Staunton, but decided in Richmond. It was a suit in the Circuit court of Helson county, brought in June 1873, by Robert C. Davis to enjoin the sale of a tract of land under a deed of tru3t executed on the 18th of April 1862, by the plaintiff to Wm. A. Burnett, in trust to secure a debt of $7,000, due to David Fultz. The bill charged that the debt was a loan of Confederate money; and insisted it should be scaled.

<p>This was an action of debt in the Circuit court of Lynchburg, brought in January 1872, by John F. Slaughter against Edward J. Burton, upon a negotiable note for §2,200, bearing date the 13th of September 1861, payable in sixty days, made by Burton to David Bodes, and endorsed by Bodes, and also by Samuel Garland, for the accommodation of Burton, and discounted at the office of the branch bank of Virginia at Lynchburg: The declaration did not notice the endorsement of Garland. Garland died before the note fell due; and it was protested for non-payment, and notice was given to Bodes and the personal represen"fcative of Garland.</p> <p>The cause came on for trial at the June term of the court for 1872, when there was a verdict and judgment in favor of the'plaintiff for the whole amount of the note, and costs of protest, with interest from the day it fell due. And thereupon Burton applied to a judge of this court for a supersedeas; which was allowed. The •case is stated by Judge Bouldin in his opinion.</p>

In March 1869 Silas B. Hunton instituted a suit in •equity in the Circuit court of Fauquier county, against Thomas Henderson, T. L.… Held: that the deed from Moore to Henderson was fraudulent as to the creditors of Moore; sustained the sale of the forty acres of land to McLearan, and decreed a sale of the office lot in Warrenton; and that Henderson should account for the $1,500 the price of the forty acres of land he had sold, with interest from the day of sale, in the…

<p>This was a motion by the Alexandria & Fredericksburg Railway Company to dismiss an appeal which had been 'allowed to Mrs. Sarah Otterback, from the judgment of the Circuit court of Prince William county, affirming a judgment of the County court of said county, in a cause in which the appellee here was plaintiff and the appellant was defendant. The judgment of the Circuit court was rendered on the 13th of May 1872. Though a supersedeas to this judgment was awarded by a judge of this court on the 9th of November 1872, the supersedeas bond was not executed until the 15th of April 1875: though counsel had put his name on the docket as counsel for the appellee.</p>

<p>The ease is stated in the opinion of the court delivered by Moncure P.</p>

This is a sequel to the case of Wren v. Commomoealth, reported in 25 Grattan 989. On the second trial, after all the evidence had been introduced, the attorney for the commonwealth asked the court to give to the jury three instructions, which the court gave; and the prisoner excepted. But as they were not considered by this court, it is not necessary to state them.

<p>At the May term 1875 of the Circuit court of Rock-bridge county, Daniel T. Swisher was indicted for the murder of James Jarvis, by cutting him with a knife. The prisoner was tried at the same term of the court. On the trial evidence was introduced by the commonwealth, tending to prove that after an altercation on the 8th of January, 1875 between the deceased and the prisoner, a fight took place between them on the same day about 7 p. m.; and at its termination, the deceased was found to be cut or stabbed in two places in his body; of which wounds he afterwards died on the 18th of the same month. And then the Commonwealth proposed to prove certain statements made by the deceased during the night of the 8th of January; to which the prisoner by his counsel objected, until a proper foundation for their introduction was laid. And thereupon a number of witnesses were examined by the judge in the absence of the jury. This testimony is set out in the opinion of Judge Christian.</p> <p>The court was of opinion that the testimony was sufficient to authorize the admission of the evidence, as the dying declarations of the deceased; and the same was submitted to the jury; and the prisoner excepted.</p> <p>The jury found the prisoner guilty, and fixed the term of his imprisonment in the penitentiary at three years; and he was sentenced by the court in accordance with the verdict. The prisoner thereupon applied to a judge of this court for a writ of error; which was awarded.</p>

This was an indictment in the Corporation court of the city of Winchester, against John B. Mesmer, for assaulting and beating Amos Jackson. There was verdict of the iury for one cent damages, to which the court by its judgment added ten days imprisonment in the jail of the corporation. And thereupon Mesmer applied to a judge of this court for a writ of error; which was allowed. The case is fully stated by Judge Christian in his opinion.

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

<p>Uriah L. Morgan was indicted in the county court of Matthews county, for that being a citizen of Virginia, and the owner of a canoe and oyster craft, he used the said canoe and oyster craft in taking oysters with ordinary oyster tongs, without paying the tax prescribed by law. Morgan appeared and demurred to the indictment; but the demurrer was overruled by the court. He then pleaded “not guilty;” and upon his trial was found guilty, and his fine was assessed at ten dollars; and there was judgment against him according to the verdict. He then took the cause to the Circuit court; where the judgment was affirmed. And he thereupon applied to this court for a writ of error; which was awarded.</p>

At the November term 1873 of the County court of Patrick county, Isaac C. Howell was indicted for the murder of Lee Martin. He was tried at the July term 1874, of the court, and found guilty by the jury of murder in the first degree; and the court sentenced him to be hung.

<p>In the case of Kent, Paine & Co. v. Dickinson, judge, reported in 25 Gratt. 817, Judges Anderson and Bouldin dissented from the decision of the court. The opinion of Judge Anderson expressing his dissent was not received by the reporter in time to insert it in the report of the case, and it is given below.</p>