Volume 27 — Virginia Reports

<p>Testator, by bis will made in January 1807, lends to his daughter Sallie, who is one of eleven, one female slave named Phoebe, to be possessed by her during her natural life or widowerhood of her present or future husband, and at her death, and the death or after marriage of her husband, then to be equally divided among her children; and if she has none, then to be equally divided among all testator’s children.</p> <p>Testator died in 1810, Sallie being then abóut fourteen years old. She lived until 1857 unmarried and without children, the descendants of Phoebe then numbering twenty-five. Held :</p> <p>■I. The executory devise over to testator’s children is too remote and void.</p> <p>2. If the executory devise is not void, then it includes all the testator’s children alive at his death, and Sallie as one of them.</p> <p>3. An executory devise over to testator’s children will always be held to refer to children living at his death, unless there is a clear indication in the will that some other period is intended.</p>

<p>This was an Appeal from the Lynchburg Chancery Court. The-.following opinions give a full view of Lire subic-.t.</p>

<p>To maintain an action of tresspass quare clausum freqit, there must have been actual possession in the Plaintiff, when the trespass was committed.</p> <p>And therefore, such an action will not lie for any damages resulting ouster of the Plaintiff, after the trespass -was committed, unless the Plaintiff has regained the possession.</p>

This was an action on the case brought in the Superior Court of Caroline County, by dlnderson against Marlin. The Defendant put in the plea of non. nrsumpsil, on which issue was joined. At a subsequent term, the Defendant moved the Court for leave to file a plea of the Ac.! of Limitations, which the Court refused; whereupon, the Defendant excepted. In the Bill of Exceptions, no reason is assigned why the plea was not sooner tendered.

This was an action of covenant brought in the Superior Court of Bath Comity, by Carlisle against Lockridge. The covenant was in these words: “Received of John Carlisle noies on men in Virginia, for collection, to the amount of nine hundred and ninety-six pounds, which I will be bound to him for the amount.

<p>3R, J & G form a partnership for the manufacture of tobacco, and in their article of co-partnership they say, it is understood that G shall contribute for the purposes of the business such an amount of capital as he may be able to command, which, when contributed, is to be placed to his credit on the books of the concern, to be used only in conducting the business, and to bear interest of six per cent, per annum. * * And in order to protect G against any losses that may arise from the business, hereby pledge and assign to him all the present and future interest in the stock, machinery, fixtures and claims of the concern.</p> <p>' Gput in $4,200, the others put in nothing. The business proved unprofitable, and the firm failed, and the partnership was dissolved.</p> <p>.About the commencement of the partnership they bought machinery, &c., giving the notes of the firm, and a deed of trust upon the machinery, &c., tp secure them, and on their failure the trustee sold, and after satisfying the trust there was a balance left. On a contest between the creditors of the partnership and G—-Held :</p> <p>1. The property never having passed to the separate possession of G, but remaining in the possession' of the partnership, the unrecorded executory agreement aforesaid is fraudulent as to creditors of the firm without notice.</p> <p>.2. About the time the firm failed, to secure G for his advances, they made a note payable to their own order for $4,500, secured by deed of trust on the machinery, &c.; but the note was not endorsed or delivered to G. The note not having been endorsed or delivered to him by the other partners, though he took possession of it after the dissolution, G is not entitled to it. It creates no liability without negotiation, and neither G nor either of his partners could afterwards negotiate it; and ■consequently the deed made to secure it is a nullity.</p>

This was an appeal from the Superior Court of the County of Buckingham For a full view of the case, and the points made in the argument, it is only necessary to refer to the following opinions.

<p>1. Under the facts of this case, the county court, in which an executor qualified as such, was warranted, in the exercise of the power vested in it by the statute, in removing him from his office. See Code of i860, ch. 132, § II; Code of 1873, ch. 128, $ 18, p. 949.</p> <p>2. There must, of necessity, be vested in the court a very large discretion; and while it is a legal discretion, to be exercised in a proper case, an appellate court ought not to interfere, except in a case where manifest injustice has been done, or where it is plain that a proper case has not been made for the exercise of the powers which the law has specially conferred on the court from which the fiduciary derives his authority.</p>

<p>Appeal from the Superior Court of Law for Henrico County, where a Writing, purporting to be the Will of Jessee Smith, deceased, was offered for probate by Lucy Smith, the widow of the deceased. The paper was deemed by the Court insufficient as a Will of real estate, but ordered to be recorded as a Will of personal estate. Both parties appealed from this decision; the widow, because the Will was rejected as to the real esiaie; and Samuel Jones, because the Will was ordered to be recorded as to the personal estate.</p> <p>The circumstances are sufficiently detailed in the following opinion.</p>

<p>This was a suit in equity in the circuit court of Henrico county, brought in June 1871, by Luther E. Spilman against Bradley T. Johnson, John Johns and others, to subject certain land called the “Granite Quarry,” in the county of Henrico, purchased by Johnson at a public sale made by John Johns, assignee of Henry Exall, a bankrupt, to the lien of two judgments which had been recovered against said Exall, some years before his bankruptcy, one of them by B. W. Green and the other by Taylor &■ Son, and which had been assigned to Spilman. This cause came on to be heard on the 18th of June 1872, when the court made a decree dismissing the bill, with costs. And thereupon Spilman applied to this court for an appeal; which was allowed. The cause is stated by Judge Staples in his opinion.</p>

Gilliam, assignee, &c. brought an. action of debt in the County Court of Cumberland, against. Holman and Wilson, on a bill penal. The bill begins, “ I promise to pay,” &c. and concludes, “ I bind myself, my heirs,” &c.; without mentioning any name in the body of it. It is signed and sealed by both the Defendants. The Defendants demurred lo the Declaration, and filed a plea, on which issue w7as joined.

<p>This was an appeal from (ho Richmond Chancery Court.</p> <p>The controversy arosj on a clause in (lie Will of Peter Lyons, as- ■ ceased, in those words: “I give all the rest and residue of the nio ney arising from the sales of my estille., and debts due to me, to all my dear grand children who shall attain their ages of lwenty ■ one years, to be invested in Hank Stock by my trustees, for the use of my grand children, or such of them as arc. now horn, or may be. born before distribution, and who shall at lain that age, and to be paid their respective shares and par is thereof, as they shall attain that age, and not sooner,” &e. The testator appointed four persons trustees for the execution of his Will, of whom only two, to wit: John and James Lyons, acted in the character aforesaid. At the time of his death, the testator left seven grand children, ((he issue of his several children,) among whom the female Appellee was one, and had attained her ago of twenty-one at the time this suit was. brought. All (he other grand children were then under twenty-one.</p> <p>Under the above clause of the Will, the Appellees claimed the proportion of the estate to which Lucy A Turner, the female Appellee, was entitled; and the trustees, doubting whether they ought, under a just construction of the Will, to pay the share of Lucy L. Turner, before th& final distribution of the estate among the grand children, refused to pay It, without having the sanction of the Court of Chancery. Upon this refusal, the A bpollces tiled their present bill. ‘ The Chancellor decreed, that Turner and Wife were entitled to their participation in the residuary fund, on Lucy L. Turner, the female Plaintiff, attaining the ap;e of twenty-one years, she being the first who attained that age. The Defendants appealed.</p>

<p>I. S, of New Kent county, died in 1856, and H qualified as his executor and received as a part of his estate bonds executed without security to S, the obligors being then solvent. H did not collect the money due on these bonds; and on his death in 1862, they were turned over-by his administrator to C, who had qualified as administrator de lonis non of S, the obligors still being solvent. C sued on the bonds, but owing to the state of things in the county during the war judgments could not be recovered upon them, and by the results of the war the obligors became insolvent. Held :</p> <p>1. Where there are several successive administrations upon the same estate, and debts due to the estate might have been collected by each of the personal representatives of said estate, by the use of due and reasonable diligence, but was collected by none of them, and was lost by the negligence of each and all of them; whilst all of them are liable for said debts, their relative liability is in the inverse order of their qualifications as such personal representatives.</p> <p>2. H might have collected these debts, and his estate and his sureties are responsible for the loss of them.</p> <p>3. C having used due diligence to collect them after they came into his hands, and having failed to collect them owing to the condition of the county, is not responsible for them.</p> <p>4. Though where an estate is to be invested to await a distribution at a distant day, a bond executed to the testator well secured on real estate, or even secured by undoubted personal security, may be continued as an investment by the personal representative, this cannot be done with a bond without security either real or personal; especially where there is a large amount of interest due upon it at the death of the testator.</p> <p>5. Under the circumstances of this case the legatees of S were not bound to proceed against the heirs of H before they could have a decree against his sureties; and one decree against the administrator of H and his sureties that they should pay the amount found due from H to S’s estate, into bank to the credit of the cause is not erroneous.</p> <p>6. Under the circumstances interest disallowed from the 17th of April r86i to April 10th, 1865.</p> <p>7. An administrator who qualified as such in New Kent county in 1862, not held liable for failing to sue in that county- during the war, in cases in which he knew there would be defences, there having been but one court held in the county during the war, and the enemy either encamping or passing through it constantly.</p>

<p>Where the executor of one who had been executor of another, is sued for a debt due by the first executor to the estate of his testator, the pleadings must state distinctly that the claim is against tile second executor as representing his tes* tator in his executorial character, in order to entitle the Piaiutiff to lank as a creditor of the first dignity under the Act of Assembly. My two Judges.</p>

This was an ejectment brought in the Superior Court of Laneasc'aster County, by Ball against Payne. The question between the parties, depended on the construction of a clause in the Will of Jas. TP. Ball. The Superior Court gave Judgment for -the Defendant, upon a special verdict found by the Jury, and the Plaintiff appealed.

This was an action of trespass on the case in the •Circuit court of the city of Richmond, brought in April 1872, by L. T. Stevenson against Charles Wallace, to recover damages for injury to the plaintiff’s house by excavation by the defendant made on his adjoining lot. On the trial the judge gave several instructions to the jury, to which the plaintiff did not except; and there was a verdict and judgment for the •defendant. The instructions are as follows : “ 1.

<p>Where a slave has been mortgaged, and afterwards sold absolutely to tin-, mortgagee, but the Bill of sale not recorded and possession permitted to remain with the vendor, such sale is fraudulent, as against a subsequent purchaser; and Equity will, (under the particular circumstances,} entertain such purchaser to recuvev the slave against the fraudulent vendee who had clandestinely gotten possession of him Nor can such fraudulent vendee prevent a recovery, by" showing, that the Plaintiff' did not take possession at the instant of the purchaser as such omission cannot make good the fraudulent sale--</p>

<p>This was an appeal from the Superior Court of Law for Greens-ville Count3r, where John Chambliss brought an action of trespass on the case, against Thomas Cleaton, junior. The Declaration contains nine counts. The first three are common money counts. The remaining six are stated with sufficient minuteness in the opinion of Judge Cakb, which follows. The subsequent proceedings will ais» he found in the same opinion.</p>

At a Conuty court held for the county of Dinwiddie, in September 1874, a paper writing purporting to be the will of Mary H. Young, deceased, was offered for probate, when the court, on its own motion, ordered that a jury be summoned, to try at the bar of the court, and to ascertain whether any and if any how much of what was offered, was or was not the will of the testatrix.

<p>There is no case in which a Court of Equity can assign to a creditor a specific per. . tion of his debtor’s property.</p> <p>Ííow far the doctrine of substitution extends.</p>

<p>" This was an appeal from the Superior Court of Law for the County of Fauquier.</p> <p>The executor of Britton brought an action of debt against White on a bill penal executed by the latter to the Plaintiff as executor. The bill was for glSl 67 cents, payable on demand, and the penalty, in case of failure to pay, was in double that sum. The Writ is in'the namé of Joseph D. Smith, executor of George Britton. Payne became the appearance bail of White; and executed a Bail Bond to the Sheriff of .......-■■■ County, without mentioning any County; it recites the Writ as at the suit of “Smith administrator of George Britton; deceased,” &c., and the condition the Defendant to “make his agreeably to Law, as the said Writ requires. ” Judgmen was entered by default, against the Defendant and the said Payne, for the penalty, but to be discharged bv the navment of $181 57 cents, “with six per centum interest thereon,” &c. The Declaration lays, the venue in the county of Culpeper. ' 1</p> <p>Payne obtained a Supersedeas from a Judge of this Court.</p>

This was an appeal from the Superior Court of Law- of Caroline .County, where Vidal brought an action of debt against Rowe, admin * istrator of Gardner, on a bil! penal, said to have been executed by the said Gardner in his life-time. The Defendant pleaded, 1st, that -the writing aforesaid is not the Deed of the said Gardner; 2d, payment; and 3d, fully administered. On these pleas, issue was joined.

<p>Appeal -from the Superior Court of Law of Kanawha County. The following opinions will give a full view of the matters in controversy.</p>

Samuel Miller, of the county of Campbell, died in March 1869. He left a very large estate, and by his will, among other bequests, he gave to the Lynchburg Female Orphan Asylum, a large amount of public bonds and a tract of land; and the residue of his estate, not before disposed of, he gave to the county of Albemarle, for the purpose of establishing a school for the education of poor orphan white children.

In March 1853 a company styled the Fredericksburg and Gordonsville Railroad Company, was incorporated and organized to build a railroad from Fredericksburg to Gordonsville. This company was authorized to borrow money, and give a mortgage on its franchises and property to pay it.

In March 1853 a company styled the Fredericksburg and Gordonsville Railroad Company, was incorporated and organized to build a railroad from Fredericksburg to Gordonsville. This company was authorized to borrow money, and give a mortgage on its franchises and property to pay it.

This was an appeal from the Richmond Chancery Court, where the Administratrix of Thomas Faulkner filed her bill against John .M. Harwood, to injoin a Judgment recovered by the Defendant against the Plaintiff. All the facts of the cau3e are sufficiently detailed in the opinions which follow.

In December 1875 the judge of the Hustings court •of the city of Richmond made a rule on James Mc-Dougal, John Marxhausen and E. J. Vaiden, judges of election of the first precinct of Jefferson ward of said city, to show cause why they should not be removed from their said offices as judges of election for the said precinct. The rule was made returnable to the first day of the next term.

Micajah Durham, and Nancy his wife, brought an action of detinue against Moses Dnnkley, for a slave named Jenny. The whole Case is so fully unfolded in the following opinion, that, it is unncees-sary to give it here.

<p>This was an appeal from the Chancery Court of Lynchburg The case is fully reported in the opinions of the Judges.</p>

This was an application to the judge' of the Circuit court of Elizabeth City county, by R. Paul Bunting, for- a mandamus to W. R. Willis, judge of the County court of said county, to compel him to restore the said Bunting to the office of sheriff. The Circuit court refused the application; and Bunting applied to this court for a writ of error; which was awarded. The case is fully stated by Judge Moncure in his opinion.

<p>This was an appeal from the Chancery Court of Wythe., where Jenny, and her three children, obtained leave to sue in forma pan■perum, for their freedom. The Chancellor decreed in favor of the. Plaintiffs, and the Defendants appealed. The whole ease is given ¡4 the following opinions.</p>

<p>This was an action of trover in the Circuit court of James City county and the city of Williamsburg, brought in April 1878 by George W. Garrett against the Eastern Lunatic Asylum, to recover the value of certain corn and bacon, which had been taken in 1865 by the military commander of the Federal forces, and applied to the support of the inmates of the Lunatic Asylum.</p> <p>When the cause came on for trial, the parties submitted the case, both on the law and the facts, to the decision of the court. And the court having heard the evidence, rendered a judgment in favor of the plaintiff for the sum of $363, with interest from the 1st of May 1865. The defendant thereupon moved the court for a new trial, but the motion was overruled, and the defendant excepted. The court certified the evidence as follows:</p> <p>That in the year 1864 the plaintiff lived on the farm known as “Warhill,” about six miles from Williams-burg. That in December of that year the plaintiff was arrested by the military forces of the United States, and was carried off by them and placed in confinement. That at the time plaintiff was so taken from his home he left there thirty-three barrels of corn, which he had measured up to itself, and which was worth then at least five dollars per barrel, and also some other corn which' had not been measured up. That he also .left there nine hundred pounds of salted pork, which was then worth twenty-two cents per pound, and he also left a lot of hogs. That the plaintiff did not return to his home until the last of April 1865. That during the late war the United States, military forces occupied the city of Williamsburg, and extended their picket lines about one mile beyond said city. That, in 1863, one Dr. Crittet F. Watson came to the asylum as its superintendent, having been sent there by the Pierpoint government. That on his arrival he submitted the oath of allegiance to the United States government, to the officers then in charge of' the asylum. That they refused to take said oath. That there .was no board of directors for the asylum after the Federal forces took charge of Williamsburg. That the members of the board had left, and were scattered over the country. That said Watson left the-asylum before the end of the year 1863. That from April 1863, to the end of the war, the military authorities stationed at Williamsburg controlled the the officer in command exercised the chief control. That many of the subordinate officers of the institution, who were in office prior to April 1863, remained in office while Watson and the military had control, and this state of thiugs continued until the close of the war. That while the military authorities had control they furnished the institution with supplies, but very often they sent parties out in the country and took supplies for the asylum from the citizens. That in January 1865 one Colonel West was in command at Williamsburg, and a party was sent out in the country under command of Captain Holmes. That this party went to “ Warhill,” the residence of the plaintiff, and by force took from there all of his corn and salted pork, it requiring ten large four-horse wagons to haul the same, one of which wagons and team belonged to the Eastern Lunatic Asylum. That the corn and pork was carried first to Fort Magruder, a military post near Williamsburg, and from there was sent by said Colonel West directly, and without unloading the wagons, to the asylum for its use, and that the said corn and pork was delivered to the asylum. That the plaintiff did not institute his suit at an earlier day because he did not know, until a short time before its institution, what had become of his corn and pork.</p> <p>Hpon the application of the Eastern Lunatic Asylum a writ of error and supersedeas was awarded by one of the judges of this court.</p>

The Culpeper Agricultural fy Manufacturing Society brought an action of debt against William H. Digges and Whiting Digges, who were the obligors in a note under seal, executed to the “ President and Managers of the Culpeper Agricultural and Manufacturing Society.” The Declaration avers that the said note was executed to the.

The Defendants pleaded several pleas, which, with the subsequent proceedings, arc fully set forth in the. following opinion. A conditional verdict was rendered, and Jugdment given for the Defendants. The Plaintiff appealed.

This was an appeal from the Chancery Court of Fredericksburg, where Sawney, a coloured man, filed his bill against Robert C. Carter, to recover his freedom. The facts of the case are sufficiently set forth in the following opinion.

<p>This was an appeal from the Fredericksburg Chancery Court, where James W. Kelly and others, filed their bill against William, Stone and George Kemper, executors of John Kelly, deceased. The whole subject of controversy is fully explained in the following opinion.</p>

<p>I. C executes a bond to H, executor of E, and commissioner under a. decree of the Circuit court of H, in the case of H and R, with conditions reciting that C has borrowed of H, executor and commissioner as aforesaid, the sum of, &c., of the money of his testator’s estate, which, by the decree aforesaid, he is authorized to put out at interest, &c. In an action on this bond by H against C, not averring any order of the court authorizing H to collect the money, upon demurrer held the declaration is sufficient.</p> <p>2. The decree under which H loaned the money to C, authorized H to lend any money of his testator’s estate in his hands upon security on real estate, and to take bonds in his own name as executor, the interest to be paid semi-annually, and the principal when he may so require, and hold and account therefor as executor as aforesaid. H may sue upon the bond without any further order of the court directing him to collect the money.</p> <p>3. In November 1857 H lent the money to G, secured on real estate. In 1861 G wished to pay it to H, who declined to receive it, saying it was well secured, and it was not needed. But in December 1861, being urged by G, he agreed that if G would find any person who would take it he might do so. In January 1862 G proposed to C totalce it, and in February C did take it, and gave his bond to Iifor the amount secured by deed of trust. The whole arrangement was made through G, C not having seen H, and G paid C m Confederate money. It is not a Confederate contract, liable to be scaled.</p>

<p>This was an appeal from the Superior Court of Law for Stafford County.</p> <p>The administrators of William Drummond, deceased, brought an action of debt against the administrator of Alexander Roane, deceased, on a Judgment which had been obtained against Roane and Adcock for the sum of SOI. 19s. 10d., and one penny damages; which Judgment was to be discharged by the payment of 25?. 7s. 4-i, and the damages and costs, to wit, f>8 1 cent. The Deelaration alleges, that this Judgment-Still remains in full force and effect, and in no wise satisfied, recovered and annulled. It further-states, that the Judgment, with the damages and Costs, are of the value of 60?.; whereby an action hath accrued to the Plaintiff “to demand and have of the Defendant,” the -sum of money, last mentioned, the amount of the Judgment aforsatd.</p> <p>The Defendant pleaded payment and no such record, payment by Roane, and payment by Alcoek; to which pleas, the Plaintiffs replied generally, and issues were joined.</p> <p>At a subsequent Term, the Defendant aslted leave to demur generally to the-Declaration; which the Court refused to grant.</p> <p>The Defendant then filed a plea oí the Act of Limitations, to which the Plaintiffs replied, that a Writ had been issued within one year and a day, &c.</p> <p>The Defendant filed another plea, that A'lcock survived Roane; to which plea, the Plaintiffs demurred generally.</p> <p>The Court sustained the demurrer, and overruled the plea. They also decided the plea of no such record in favor of the Plaintiffs.</p> <p>On the trial of the issues, the Jury found for the Plaintiffs the sum of .50?., that being the debt in the Declaration mentioned," and $ 60 in damages. The Court gave Judgment accordingly, and ihe Defendant appealed.</p>

<p>This was an appeal from the Chancery Court of Richmond, where Cousins filed his bill against Grymcs, Rhodes and Moore, praying for an Injunction to prohibit a sale of certain goods which had been conveyed (fraudulently, as he alleged) by Deed of Trust fro mGrymes to Rhodes; or, that the goods might be returned by Moore the auctioneer, to the other Defendants: or, to stay $1,500 in the hands of Moore, if a sale should be thought proper; or to grant a Ne Exeat. The whole ground of complaint is fully ser forth in the following opinion.</p>

<p>This was a suit in equity in the Circuit court of Henry county, brought in November 1870 by Horace Morrison, and on his death revived in the name of his administrator and heirs, against Thomas J. Morrison, to set aside a deed executed by said Horace to said Thomas J. Morrison, on the ground that it had been procured by fraudulent means.</p> <p>Horace Morrison was a deaf mute, without any education; though he was a man of good sense, and could make himself understood by signs by persons well acquainted with him, . and such persons could make themselves understood by him. At the time the deed was made he was about fifty years old, unmarried, and his habits were not good. He owned a small farm of about twenty acres, on which there was a good house in which he lived, and also some horses and stock and farming implements.</p> <p>The deed bears date the 10th of April 1867, and purports to be “in consideration of the natural love and affection which the said Horace Morrison has for his nephew, the said Thomas J. Morrison; and for the further consideration that the said Thomas J. Morrison has, since last September, lived with, and shall continue to live with, and support, the said Horace Morrison during the remainder of his life, the said Horace Morrison hath given, granted, &c., conveying the land and the personal property; and it concludes as follows : It being the intention of the said Horace Morrison to convey, and he does hereby convey, all of his property of every sort to the said Thomas J. Morrison, in consideration of the premises, and the said Thomas J. Morrison, on his part, in consideration of the said conveyance, agrees to live with and support comfortably the said Horace Morrison during the remainder of his life.</p> <p>This deed was retained in the hands of Horace Morrison from its date until September 28th, 1869, when it was executed by both the parties to it, and their acknowledgment of it was taken by John Miller, a justice of the county of Henry; and it was then recorded.</p> <p>The bill after stating plaintiffs condition, states that he agreed that his nephew, Thomas J. Morrison, and his wife, should come to his house, reside with him, and assist in the management of his farm and domestic operations; and that in pursuance of said agreement his said nephew and wife did come to his house, and resided with him during parts of the year 1866 and 1867. But instead of being content with the share of the farm products, as he agreed to do, the said Thomas and his wife began soon to control and manage his farm as if it belonged to them. That plaintiff, in consequence of his condition and declining health, was willing to enter into an agreement with his said nephew, to the effect that he, the said Thomas J. and wife would aid him in the management of his affairs during bis lifetime, and be kind and affectionate to bim, that plaintiff would by will or deed convey to them his premises aforesaid, to take effect at his death, and communicated to them his willingness vto do so in the best manner he could.</p> <p>He further states that Thomas J. Morrison procured a deed to be written, and represented to the plaintiff that it was strictly in accordance with the aforesaid agreement, and desired plaintiff to sign it; but plaintiff- did not then do so. That in consequence of a disagreement between him and his said nephew and wife, they left his house, and his wife never returned again; and the said Thomas J. came only occasionally, not to aid the plaintiff, but to control his property. That thus matters remained between them until the fall of 1869, when the said Thomas J. insisted upon plaintiff consummating the said proposition, by acknowledging said deed before a magistrate, in order that it might be recorded; and again represented to the plaintiff that the deed, which he had had prepared, only conveyed the said lands to him at plaintiff’s death; and did not in any way affect his title and dominion of the same during his life. He declares that he was wholly ignorant of the contents of the deed when he signed it; that Thomas J. Morrison wilfully and knowingly misrepresented the contents of the deed to the plaintiff, for the purpose of cheating and defrauding him out of his home and property. And he prays that the deed may be annulled and set aside as fraudulent and void; that said Thomas J. may be inhibited from selling or controlling the property, and may be required to account for all that he has disposed of; and for general relief.</p> <p>Thomas J. Morrison answered the bill. He denies positively every insinuation or allegation of fraud. He says he had lived, before his marriage, on the most friendly terms with the plaintiff', who was his uncle; and after his marriage, the said Horace, without any importuning by the respondent, proposed that respondent and his wife should make his house their home as long as he should live, and promised and agreed that if respondent would comply with his wishes in this respect, he would execute a deed in fee simple to the respondent of all his property, both real and personal, with the condition, of course, that respondent and his wife would treat him kindly. That respondent accepted the proposition. That in view of respondent’s approaching marriage, the deed was prepared; and, after respondent’s marriage, he and his wife lived with plaintiff for six months, when his wife wished to return to her father’s at a distance of about two miles and a half, to which the said Horace kindly agreed, upon the condition that respondent should still attend to his business; and respondent visited the said Horace every day or so to enquire into his condition and provide for his wants.</p> <p>Respondent further, says, that at the time he and his wife left the house of the said Horace, the deed, though written, was in his possession and not executed. After it was executed and acknowledged, the said Horace insisted that respondent and his wife should take up their regular abode at his house, he having of his own accord and unsolicited delivered the said deed to the respondent; and they did return, and they remained there about six or eight months, and during that time did everything in their power to please the said Horace and promote his comfort. But very soon after their return, his habits became, from drunkenness, very disagreeable, so that respondent could not in justice to his family remain longer in the house; and in the spring of 1870 he left the house for the reason herein stated. But after he left, the said Horace often called on respondent to transact business for him, in the most friendly way, when he was sober. And respondent, whenever called on, without hesitation, supplied him with whatever money he wanted, kept him well supplied with provisions of all kinds up to the period of his death, which occurred in May 1871.</p> <p>A number of witnesses were examined by both plaintiffs and defendants. This evidence is referred to by Judge Anderson in his opinion. There is certainly no evidence of improper persuasion by Thomas ■ J. Morrison, to induce Horace Morrison to execute the deed; and Miller, the justice who took the acknowledgement of the deed, and who was called by the plaintiff as a witness, states that the explanations of the deed were made to Horace Morrison by Thomas J. Morrison, Skelton Coleman, and G-. J. Gray; that he seemed to acquiesce in the explanation very willingly, and willingly signed the deed. Witness was not at that time familiar with the sign language of said Horace Morrison; but he would not have certified to the acknowledgment of the deed unless he had believed he understood the nature of the instrument and willingly executed it. His belief was based upon the representations of his willingness to sign the deed, and upon the representations of the witnesses and bystanders as to his knowledge of its contents. Indeed, there is no evidence of his unwillingness to execute the deed; though there is some that he intended it to take effect at his death.</p> <p>The cause came on to be heard on the 8th of May 1872, when the court set aside the deed, and directed the defendant Thomas J. Morrison to surrender the land and other property. And thereupon Thomas J. Morrison applied to this court for an appeal; which was allowed.</p>

<p>It is a general mle, that where slaves are improperly taken in execution, the owner may claim the aid of ;■ Court of Equity to prevent their sale But, if it can be shown, that such slaves have no peculiar value in the eyes of their owner, but are merely regarded by him as any other property, Equity ought not to intefere, but leave him to his mlress at Law.</p> <p>It is an irregular proceeding in a Chancellor, to dissolve an Injunctton in Court, with a direction that the order of dissolution should not go out; and then in va. cation, to direct that the order should go out From such an order an appeal lies to the Court of Appeals.</p> <p>Where an Injunction is granted, and i. material fact is alleged in the bill, and not denied in the answer, such fact must be taken as true on a motion to dissolve; and no other proof will be required on such motion.</p> <p>Where personal property of a testator or intestate has been distributed to legatees or distributees of the decedent, tt/Hh the assent of his executor or .¡.dmnht- n tor, it is not competent to a creditor of the decedent to levy 'ms execution on such property, under a Judgment obtained against the persona; represent '■ ive.</p>

<p>1. A and B are sureties of W in a bond to L for $3,000, executed in 1858. In May 1862 L lent to W $7,500 of Confederate money, and took Ms bond payable in two years with interest; and W executed a deed, by wMch he conveyed to S real and personal estate in trust to secure both debts; and it provided that upon the prompt payment annually, of the interest upon the two bonds, W should keep quiet possession of the property for two years. W did not pay the interest. Held :</p> <p>1. W not having paid the interest, the parties were left in the same situation, and with the same rights and obligations, as if the agreement to extend the time had not been made.</p> <p>2. The agreement only operated to postpone a sale of the property under the deed of trust. It did not tie up the hands of L from pursuing Ms debtor W at law.</p> <p>3. If L had sued W at law and recovered judgment and levied an execution on the personal property embraced in the deed, he might thereby have forfeited the benefit of that security, or subjected himself to an action for damages; but a court of equity would not interfere to prevent a sale of the property under the execution, upon the mere contract to pay interest on the debt.</p> <p>-4. But if the agreement operated as an extension of the time of payment of the debt, as the act of the 29th of March 1862, known as the stay law, forbade the issue of execution upon a judgment, and A was under no obligation to the sureties to raise the question of its constitutionality, the agreement did not have the slightest effect upon the rights and remedies or obligations of any of the parties.</p> <p>3. The principle upon which an agreement for an extension of time discharges a surety is, that the creditor thereby deprives, the surety of the means of relieving himself, by paying the debt and proceeding immediately against the principal; or hy his filing his bill quia timet to compel the debtor to pay the debt; or by notice to the creditor under the statute. The sureties cannot be discharged by an act which in no manner affected their rights, or impaired the remedies of the creditor.</p> <p>II. W having been declared a bankrupt in the United States court, L„ and the assignees of W, by compromise agreed that the debt of I* for $7,500 should be scaled to $3,500, with interest from date, and L should retain the benefit of the deed of trust; and that L should not object to the exemption in favor of W, or to the allowance of 200 acres of land to his wife, in commutation of her contingent right of dower; and this agreement was confirmed by the Bankrupt court. S sold the balance of the trust fund, and apportioned the net proceeds between the two debts of W to L. Held :</p> <p>1. A and B cannot complain of the scale applied to the debt of $7,500, which seems reasonable in itself, and was agreed to by L and the assignees of W, and approved and confirmed by the court.</p> <p>2. If there was error in the decree of the Bankrupt court in allowing W the exemption claimed by him, or in assigning to his wife the 200 acres of land, they are acts of a court of competent jurisdiction, and cannot be questioned elsewhere.</p> <p>3. A judgment having been rendered in favor of L against W for two years’ interest on the bond for $3,000, upon an insufficient notice, and execution levied on his property, W gives L notice that he will move to have it set aside; and L being aware of the insufficiency of the notice, releases the property. The sureties are not entitled to a credit for the amount of the judgment.</p>

<p>In an action of debt on a bond conditioned.íbr ¡ÜheSÉsfMal «¡Epritiatj»® ¡cff sic duties of an office, the Declaration need .not •seit&WI'i tlieja^iOTlHr from whom money was received, r.or the airais Stem eisds, nr tale® &t~ when the breaches whes'.e committed, if ft appears that tBacy »coiar.rf idmteijg site continuance of the Defendant in bis office; sier is it neoesany te «static tíae ¡fcanr-» ages occasioned by the breaches.</p> <p>The sureties of an Accountant of a Bank, are nut DnMe fe smmes faitea Say Dsw from the Teller's drawer, without his üaro'wleáge ®r cmnsemJ, at sppramioiif'- flunk the Accountant is not entrusted with, .or put am p-asscssi-rora ¡o% any «mes vS ItBae Bank, as Accountant.</p> <p>It is not necessary for the Declaration, after flae ¡assígaam-eint of Daraaclves, to sitters that the Plaintiffs have been injured by the ¡breaches.; ¡huí, it is suffiidauit if it is slated that ail aciion has accrued Ic the tlain-tiHs to ¡éemamfcdl and Dunne (Use ¡¡Mufeof the bond</p> <p>In an aciion for the penalty of a bond, it is not aseecssasy to state tSraSt 5® ««sequence of the refusal of the Defendant to pay, the PWmli®‘.BKslasiii«J«!ta»g;e.</p> <p>The felony of one is not a bar to, ora soispansi©® a civil remedy for flse «atine act. Ter Giiken, Judge.</p>

This was an action of debt in the circuit court of the city of Richmond, brought in April 1873, in the name of the city of Richmond, at the relation of Manfred Gall, against A. B. Duesberry, high constable of the city of Richmond, and his sureties in his official bond, to recover the value of certain property which Duesberry had levied on and sold under a distress and attachment for rent.

<p>This case was argued at the term of this court held at Wytheville in 1875, and was decided at this term of the court in Eiehmond. It was an action at law in the Circuit court of the county of Eoanoke, brought by Thomas A. Kasey against the Continental Insurance Company, a corporation chartered by the state of New York, upon a policy of insurance issued by the defendant in favor of the plaintiff. The case was once before in this court, upon an appeal by the company, and the judgment of the court below was reversed, and the cause sent back to the Circuit court for a new trial. See 25 Grattan, 268.</p> <p>The cause came on again to be tried at the Yovem"her term 1874 of the Circuit court, when the defendant presented his petition, accompanied with affidavit, asking that the cause might be removed to the circuit court of the United States for that judicial district; but the court overruled the motion; and the defendant excepted. The petition and affidavit are set out in the opinion of Judge Christian.</p> <p>On the trial there was a verdict and judgment in favor of the plaintiff for $4,950.50, with interest at •sixper cent, per annum from the 26th of June 1872 till paid; and a motion for a new trial, which was overruled. And the record states that the defendant excepted; but the bill of exception is not in the record. Upon the application of the company, this court allowed a supersedeas to the judgment.</p>

In January 1871, John T. Alsop instituted a suit in equity in the circuit court of Spotsylvania county,, against John O. Cammack, administrator of Robert C, Duerson, deceased, and the heirs at law of said Duerson, to subject his real estate to the payment of a debt which the plaintiff' claimed to be due to him.

Assumpsit by Robert Wiley against Alexander Tompkins and three others, merchants and partners trading under the firm of Alex j cinder Tompkins fy Co., charging them as bailees of certain goods shipped by Richard Ashhurst, of Philadelphia, to the Plaintiff; and which, by the carelessness and negligence of the Defendants in keeping them, were totally lost to the Plaintiff.

<p>The Plaintiffs, dsbury Crenshaw, and Thomas B. Crenshaw. exhibited their Bill to the Judge of the Superior Court of Chancer).' for the Richmond District, praying for an Injunction against thc- “■ Trustees of the Slate River Companj'',” a Corporation of that name, created by an Act of the General Assembly, passed on the 29th January, 1819. They allege that they are the owners in fee simple of a valuable water-grist mill, in Buckingham county, built cn a water-course called Slate River; that the mill is supplied with water by a dam erected across the said river pursuant to Law, at a place where they (the Plaintiffs) are the fee simple owners oí the bed of the water-course, and of the lands on both'sides thereof.</p> <p>They trace back their title to the said land and bed of the river, to a patent issued on the 10th January, 1726, granting 1600 acre? of land to James Skelton, including the land on which the mill and dam are situated, and the bed of the river. In October, 1727,-Skelton sold and convejred the said laud to George Nicholas, and from him it passed to his son John Nicholas, who obtained from the County Court of Buckingham, on the 13th Majg 1765, an order authorising him to build and ei'ect a dam across the said river on the said land; and in pursuance thereof, the said John Nicholas did build a mill and erect a dam on the site now occupied by the dam of the Plaintiffs. John Nicholas, in 1795, devised the land on which the mill and dam were erected, to his son Hubert Nicholas, who in 1802, petitioned the County Court for leave to erect a water-grist mill on his own land on Slate River, where John Nicholas formerly liad a mill. A Writ of Ad Quod Damnum was awarded, and the Jury found among other things that ordinary navigu tion will not be obstructed, and on the 12th July, 1802, an nucon ditional order to build the mill ivas granted him. On the 21st Sep • tember, 1S02, he sold and conveyed to Charles A. Scott, who proceeded to erect the mill and dam at the site aforesaid at very great expense. Scott sold and conveyed in 1807, to John Cunningham, fi'om whom it passed to his daughter Letit'u Taylor, who, wiih her husband Archibald Taylor, conveyed on the 28th Juljq 1824, to the Plaintiffs. Thus, they allege, that the title to the land, with the bed of the water-course, and the undisturbed possession thereof has remained with the original paterltce, and those claiming under him, for a space of almost one hundred years.</p> <p>They allege that Slate River, within the bounds of Skelton's patent, is a small stream, many miles above tide-water and ship navigation, and was not, at the time of the grant; used for navigation of any sort.</p> <p>They allege that on the 18th December, 1794, the Legislature passed an Act, for improving the navigation of Slate River, by which Trustees are appointed to raise money by subscription for that purpose; and that by the 4th section, owners of mills on the river are required to erect locks or slopes for the passage of battenus of four tons burthen, and of fish, at their own expense, and to keep them in good repair. [See Sessions Acts of 1794, ch. 48, p. 29.] But that, as they are informed, no subscriptions were raised under that Act, and nothing was done for the improvement of the river; the scheme being found impracticable and was abandoned.</p> <p>That another Act passed 29th January, 1819, entitled “An Act for improving the navigation of Slate River,” whereby a Joint Stock Company was incorporated by the name and style of “The Trustees of Slate River,” [See Sessions Acts qf 1818, ch. 37.] for improving the navigation of the river “from its junction with the «Tames Iiiver, to the highest practicable point of improvement:” and the improvement required by Law is, that the river should be made “capable of being navigated in ordinary seasons, by vessels drawing one foot water.” When the river is thus made navigable, it is declared to be a public highway, and the Company are entitled to tolls.</p> <p>That by the 10th and 11th sections of the said Act, the owners of mills are required, within six months after the navigation shall have been completed to their several mills, to erect good and sufficient locks through their dams, or on canals around them, so as to procure a safe and easy passage for loaded boats; to keep them in repair, and to cause constant attendance to be given by some person who will enable the boats to have free passage through them; and on failure so to do, a fine of $20 is imposed on the offender for every moreover to party grieved for damages. And if the owners of the mills shall refuse or fail to erect the locks within eighteen months, the mill-dams are declared to be nuisances, and may be abated: and the Trustees are empowered to clear them away, and to charge the expense of doing so to the owners of the mills.</p> <p>They allege, that their dam is situated about a mile and a quarter above the mouth of the river; that from the dam to the mouth, the stream has been used to transport the manufactuse of the mill ever since its erection by Scolt, long before the passage of this Act; that the dam is built at the foot of a succession of rapids, which never were navigable, and never could have been made so without great expense.; that the dam is seventeen feet high, and causes the water to flow back only about three quarters of a mile; that no part of the stream above the dam has ever been used for the purpose of navigation, as they have been informed, except on one occasion, when a single boat with two hogs heads of tobacco passed down in high water many years ago; that the obstructions to navigation above their mill are such, that they believe the Company could not be induced to encounter the expense of removing them, either for the public good, or their own emolument, if they were bound to bear the whole expense of the improvement; but, there having been constructed on the river five mills, the dams of which have been erected on the faith of the General Law in relation to mills, and their dams having made eddy water for about twelve miles, one-third of the distance over which the improvement is contemplated, the expense of improving the residue of the distance may be within the competency of the Company; that these. Jams together, are believed to be between sixty-three and sixty-five feet in height, and to have covered with their ponds the most difficult part of the river to he improved; that if the Company can now charge the mill-owners with the expense of locks, while they will throw an immense burthen off their own shoulders, they will tax with an unjust and grievous burthen, those very individuals who have already done So much for the improvement of the river, and whose, mills are a great public benefit; that, notwithstanding these considerations, the Company are proceeding to impose on the Plaintiffs, and the other mill-owners, the whole burthen of making-locks at their dams, of keeping them in repair, and causing them to be attended to in the manner prescribed by the Act of Assembly»</p> <p>They state, that they had received a written notice from the Company, apprising them that the navigation has been completed for six months, from the mouth of the river up to their dam, and requiring them to proceed to the erection of the locks. They say that the navigation above is not yet improved so. as to be fit for use, and cannot be for a considerable time; so that if they are bound to make them at all, there can be no utility in making them at this time; yet, if the Act aforesaid, so far as it relates to the mill-owners, be Law, and if they (the Plaintiffs) are bound by it, they are now exposed to the danger of being prosecuted and harassed by the Company, or by any vexatious individuals who may choose to prosecute for the fines, and in the course of a few months, they will be exposed to the danger of having their dam, which is valuable to them and the public, regarded as a nuisance, and abated by the Company.</p> <p>They charge, that the Act, so far as it requires the mill-owners to build and repair, and superintend the locks, is without authority and void; that they are advised they are not bound to build the locks; that no fine could be lawfully imposed on them for failure to do so, and that their dam could not be lawfully abated by the Company for such failure; but, they do not desire to engage in so inconvenient, perplexing and hazardous a controversy, as that which would arise at Law, in repeated efforts to fine them, or in an attempt to abate the nuisance; that such a controversy would be alike detrimental to^their interest, and that of the Company; and that while they are threatened with the penalties of the Law for not doing what they are advised they are not bound to do, they can neither enjoy their property in quiet, nor bring it to market with safety.</p> <p>They therefore pray, that, as they are without remedy at Law, the Slate River Company may be made Defendants to their Bill; that themselves may bo quieted in the possession and enjoyment of their free from the claim of the to have the locks built by them; and that the Company, their agents, and all others, may be mjoined from prosecuting them for fines and from abating and disturbing their dam.</p> <p>This Bill of Injunction was exhibited on the 28th March, 1825. The Patent, Deeds, Acts of Assembly, and other Documents refer-led to, were annexed to the Bill. The Injunction was awarded on the next day. The Trustees of the Slate River Company filed their Answer on the 5th August of the same year.</p> <p>The Answer of the Defendants, the Slate River Company, is to the following effect:</p> <p>They admit the emanation of a Grant to Skelton, the execution of the several Deeds, the transmission of the lands patented, and the. other documents referred to, so far as matters of fact are proved by those exhibits; but, they deny that the bed or stream of Slate Rivet was ever so disposed of, or granted to Skelton, or those claiming under him, as to preclude or impair the rights vested in the Slate River Company by Law, and the Statural rights which appertain to the people of Virginia to apply the stream for the purpose of navigation.</p> <p>They say, that as early as 5th November, 1788, the Legislature passed a Law appointing Commissioners to examine the natural and artificial obstructions to Slate River, and to give their opinion whether it was practicable to make the stream navigable, and to re-poi’t to the next Assembly. In December, 1790, they passed another Law reviving the former, appointing additional Commissioners, requiring any three to perform the duty assigned by the former Law, and to report. That on the 18th December, 1794, (at which lime neither the Plaintiffs, nor any one from whom they claim, had any mill-dam, or right to erect any mill-dam across Slate River,) the Legislature passed the Act referred to in the Bill. That by that Law it is asserted, that it had been represented to them, that the extension of the navigation of the Slate River would be of public utility, and it is probable this representation was made by the Commissioners. That before the year 1794, the mill-dam erected by John. Nicholas was down, and continued down so long that neither ho, nor any one claiming under him, could lawfully erect the dam anew, - without a new order from the County Court. Whatever then might be the legal effect of the order of 1765, yet the rights given thereby were lost to the builder of the dam, and those claiming under him; and before the order of July, 1S02, was made, the Legislature appropriated Slate River to the purposes of navigation, in exclusion of any rights which the Plaintiffs, or those under whom they claim» have, or may have had.</p> <p>They say, that the dam of the Plaintiffs is not erected at the same place on which the dam of John Nicholas Iras built; that Slate River, at the Plaintiffs’ mills, and for many miles up, and to its junction with James Riyer, is a stream large enough to be used, and well suited to be improved for the purposes of navigation, to the great benefit of the public; that in its natural state, and as far back as during tiie War of the Revolution, it has boon used for transportation-, that after the dam of John Nicholas was down, the stream, for some distance above the Plaintiffs’ mili, and even above the lands ever owned by John Nicholas, was used for transportation.</p> <p>They deny- that nothing was done under the Act of 1794, to improve the navigation of the river. They say, that the persons appointed by that Act, divided the river into sections, and alloted the sections to persons who did much work on it; that one section, as difficult as any other, was allotted to Francis Harris? who nearly put his section in order for navigation; that the scheme was never abandoned from the belief that it could not be carried into effect; that those concerned in the undertaking under the Act of 1794, determined that it might be made navigable at the very time when there was no dam across the stream near the prosent dam of the Plaintiffs. They believed, that the neighbours on the stream might make it navigable to Kidd’s Falls; and from that point to some little distance below, they would have to employ a man, and spend some money to remove the rocks about the Falls, and obstructions in the str.eam.</p> <p>They claim all the rights vested in them by the Act of 1819; and Insist, that the Complainants have no l-ight to ask an exemption from any burthens or duties imposed by-that Law.</p> <p>They say, that the Plaintiffs’ mill is situated about one and a quarter, or two miles from the mouth of the river; that the dam is about seventeen feet liigh, and causes the water to flow back between three-quarters of a mile and one mile and a half.</p> <p>They admit, that the river- between the mill of the Plaintiffs and Kidd’s Falls, a distance of three or*four miles, abounds with rocks, and falls that would be expensive to remove; but, they deny that they would give over the undertaking in which they have engaged, if there was no mill-dam on the river. ' They believe the mill-dams arc’an hindrance and an inconvenience to the works for improving the navigation. They admit, that the water in the mill is generally confined to the hanks of the stream. The ponds are deep, and much wider than other parts of the stream; and in the winter will retain Ihe ice much longer than the other parts of the stream, and 1 hereby obstruct navigation longer. » They say, that the mill-owners can manage to stop tlie water in its passage clown, so as to produce delay in navigation; but, if there were no dams on the river, except those belonging to the Company, placed where they might be used, as they were required, under the sole management of the Company, it would be in the poorer of the Company, by the use of their lock-dams and works, to obviate, in a great degree, the inconvenience arising from scarcity of water, drought, or ice. They admit, that tlie eddies formed by the mill-darns are about twelve miles, and the Company contemplate carrying the navigation to Buckingham Court-house, a distance of about forty miles; but, they deny that these eddies are beneficial to the Company in their work. They say, that if they were to erect locks at-their own expense in the mill-dams, they would spend more money than would be required to improve the stream from its natural state; and after they have encountered such expense, if the dams should be allowed by the mill-owners to go down, the locks of the Company would be destroyed, and they would be compelled to go to work on the bed of the stream. The locks erected in the dams of the millers, would require greater skill, and would be much more difficult to be kept in repair than the dams of the Company, erected just where the Company want them.</p> <p>They say," that from tlie time of the passage of the Law in IS 19, to' December, 1823, great efforts were made to raise the stock, and form the Company, which was well known to Archibald Taylor, the then owner of the Plaintiffs’ mill, who subscribed for two shares of the stock, on the agreement that he might expend it in improving the navigation below his mill; that he placed a lock-dam between his mill and the mouth of the river, for the Company, which he used .in navigating the river to his mill, and the Plaintiffs also, since they purchased: that the Plaintiffs purchased from Archibald Taylor, after the Company had been formed; had spent a large sum of money in the work, and had succeeded in procuring a passage of Laws fo obtain a subscription on the part from the Fund for Internal Improvement: that the Plaintiffs have become purchasers with a full knowledge of all circumstances, and now demand to be freed from 3n obligation which they are bound by Law to bear: that the Defendants being apprised of the temper of the Plaintiffs, and of their disposition to impede the operations of the Company, gave them the notice of which they complain.</p> <p>They admit that the river had not been made navigable to the Plaintiffs’ dam, from above, but they assert that it had been from below, and that the Company had done, nearly a fourth of the entire work, and but for the mill-dams, they believe the work might be completed by the Fall of 1825, They say, they be-. licvo the work practicable, and when finished, will be of great public utility.</p> <p>They deny, that the County Court has any power or authority to make an order (in favor of a petitioner for leave to erect a mill,) whereby the mill-owner shall have the right to appropriate to himself the privilege of excluding the people of the Commonwealth the right of navigating the streams of the Commonwealth: that it is the duty of the County Courts to remove obstructions to navigation, but they have no right to throw impediments to navigation, in the way of those who live on the upper part of the streams.</p> <p>They contend, that although ships can never navigate Slate River, yet that the streams which are susceptible of navigation, are under the control of the Legislature, and that the owners of dams across them may be subjected to such terms as to the Legislature may seem just: that before and since the Revolution, to secure the passage of fish, and to improve navigation, the Legislature have required own ■ ers of mill-dams to erect locks or slopes, in their dams: and that the privilege of navigating streams is a natural right.</p> <p>They do not admit the right of a Court of Equity, by any Decree, to stand in the way of a determination of a Court of Law, on any of the matters set forth in the Plaintiffs’ Bill. They deny all fraud, and all disposition to oppress, or be oppressed.</p> <p>To this Answer a general replication was filed, and the parties pro-, ccedcd to take the Depositions of numerous witnesses. It is not deemed necessary to report any part of that evidence. So far as it was necessary to explain any point decided by the Court, the Judges have referred to the evidence.</p> <p>In June, 1886, the Chancellor dissolved the Injunction, and the Plaintiffs appealed to this Court.</p>

This was an action of debt in the circuit court of Pittsylvania county, brought in March 1866, by the Farmers Bank of Virginia against Wm. A. J. Finney and Henry L. Muse, late partners under the style of Finney & Muse, as makers, and George Craft, John H. Gill and another as endorsers, of a negotiable note for four thousand dollars.

This is a supersedeas to a judgment of the late district court of appeals for the third judicial circuit, reversing a judgment of the circuit court for the city of Williams-burg and county of James City, rendered in a certain matter of controversy therein depending, wherein the plaintiff in error, James R. Warren, was plaintiff, and the defendant in error, Edmund A. Saunders, was defendant. The following is a statement of the case.

<p>1. R dies in i860’, and by his will directs his executor to sell his land in three parcels, at public auction, upon such terms as he deems best for the interest of testator’s legatees. These legatees are infants. In November i860 the executor sells the lands on a credit of six and twelve months, taking bonds of the purchasers and retaining the title. The executor being in the army during the war, the purchasers paid the purchase money to his agent, during the years 1863 and 1864, in confederate currency. Held: The executor was guilty of a devastavit in receiving the purchase money in the then depreciated currency, and the purchasers were parties to the devastavit; and they will be required to take the lands at their value at the time of tbe decree, or the lands will be again sold.</p> <p>2. Though the decree makes no allowance for improvements which the purchasers allege they have made upon the lands, yet, as the rents and profits of the.lands, or the interest on the purchase money, with neither of which they are charged, would amount to more than these improvements which they claim, there is no error in the decree.</p>

Abel B. Nichols, of the county of Bedford, died in February 1868. He was a widower, and left three children, James L., George A., and Sally E., then married to Holmes Erwin. He left a will, wholly written by himself, which was duly admitted to probate in the county court of Bedford.

Mark Anthony, brought Trespass in the Superior Court of Bed-ford* against John Claytor-, Sheriff of Bedford, for taking and-carrying away, and, selling, by colour of his office, a slave of the. name of Patrick, the property of the Plaintiff.

Solomon Haunstein, of foreign birth, died seized of' an estate of inheritance in six houses and lots in the city of Richmond. He was unmarried and died intestate; and his estate was committed to Richard D. Sanxay, as curator.

On the 25th of January 1862 Lewis H. Turnbull, who sued for Randolph Dickinson, sued out of the county court of Franklin county a summons in debt against Giles M. Thompson, William P. Thompson and two others, the said writ being made returnable on the first Monday of the next February. This writ went into the hands of J. J. Lavinder, deputy of Wm.

<p>•I. A paper writing purporting to be a will, commences—Lewinsville, August 19,1862, Dear Wife—I am going away; I may never return. I leave my property to &c. Held on a view of the language and the circumstances surrounding the writer at the time, not to be conditional on his going away and not returning.</p> <p>■2. A witness as to the handwriting of C, states that some thirteen years previous, C dug a well for him, and drew several orders on him for money which he paid, and which C recognized afterwards. He never saw C write, but from his recollection of these orders, he believes the paper to be in the handwriting of C. This is competent testimony.</p> <p>3. A verdict should not be set aside on the ground of after discovered evidence, where it is only cumulative and corroborative, and which ought not to be productive on another trial of a different result.</p>

The Appellees, Peggy and other negroes, who had been slaves of George Redford deceased, appeared in forma pauperis, before the County Court of Powhatan, and applied to the Court to admit to probate a Testamentary Paper, purporting to be the last Will and Testament of the said Redford.

<p>Martha C. Ball died intestate in March 1865. Her heirs were the children and a grandchild of her two deceased sons. Her son, S. M. Ball, left five children, and her son, W. W. Ball, left six children and a grandchild, the only child of a daughter who was dead.</p> <p>The five children of S. M. Ball filed their petition in the circuit court of Fairfax county for a division of the estate of Martha C. Ball, to which the other heirs were made parties; and the only question before this court was, whether the estate should be divided into two equal parts, of which the children of S. M. Ball should have one part, and the children and grandchild of W. W. Ball should have the other, or whether they should all take per capita. The court below held that the estate was to be divided per capita among all the children and the grandchild. And thereupon the children of S. M. Ball applied to this court for an appeal; which was allowed.</p>

<p>This was a rule upon the Honorable G-. A. Wing-field, judge of the circuit court of Bedford county, made on the motion of the board of supervisors of that county, to show cause why a writ of prohibition should not be issued, forbidding him to interfere with the board in making certain alterations in the courthouse building for the enlargement of the accommodations for the clerk’s office of the county. The case-is stated by Judge Christian in his opinion.</p>

<p>I. A blank paper is signed and sealed by a principal and three others who intend to be his sureties, and it is left with the principal to be filled up and signed by him. He does fill it up and deliver it to the obligee named therein. It is not the bond of the three, and does not bind them. But the principal having filled it up, and delivered it when thus complete, it is his bond, and binds him.</p>

These were motions by the commonwealth, in the circuit court of the city of Richmond, against the Chesapeake and Ohio Railroad Company, for fines upon the company for their failure to comply with the laws of the state in relation to the taxation of such corporations.

<p>An imperfeet bond, purporting to be an Executor’s bond, wait executed by the Appellant and other obligors, in Nansemond County Court on the 10th October, 1803. The following is a copy of the instrument so executed: “Know all men by these presents, that we, William Cofield, Thomas M. Cowling, and Willis Cof~ field,- are held-and firmly bound unto Gentlemen, Justices of the Court of County now sitting, in the sum of four thousand dollars, payment whereof well and truly to be made to the said Justices, and their successors, we bind ourselves, and each of us, our and each of our heirs, Executors, and Administrators, jointly and severally firmly by these presents. Scaled with our seals this 10th day of October, Anno. Bom. one thousand eight hundred, and three, & in the year of the Commonwealth</p> <p>“ The Condition of this obligation is, that if the said William, Cofield Executor of the last Will and Testament Willis Coffield deceased, do-make a true and perfect inventory of all and singular the goods, chattels, and credits of the said deceased which hayo or shall come to the hands, possession, or knowledge oí the said ■ or into the hands, or possession of any other person or for and the same so made do exhibit inte *-'ourt> at such time as shall be thereto required by the said Court, and the same-goods, chattels and credits do well and truly administer according to Law, and do make a just and true account of acting and doings therein when thereunto required by the said Court, and further do- well and truly pay and deliver all the legacies contained, and specified in the said Will, as •:sr as the said goods, chattels, and credits wiH rxlrnd recording ta the value thereof, and as the Law shall charge; then this obligation to be void, else to remain in full force.</p> <p>William Cofeield, (l. s.)</p> <p>Thomas M. Cowling, (l. s.)</p> <p>Lillis Cofeield, (l. s.)”</p> <p>Sealed and delivered</p> <p>in the presence of,”</p> <p>Debt ivas brought on this bond in the name of Jeremiah Godwin, surviving obligee of Robert M. Riddick, William Summer, and .Fisher Dashiell, Justices of the Peace of the Court of Nansemond County aforesaid, at the relation of Samuel Carrol, Administrator de bonis non, with the Wi 11 annexed of Vkilhs Coffield deceased, against the above mentioned obligor, Cowling, to recover the sum of 31,169, found due from the said Executor to the estate of his Testator, by the Commissioners appointed to settle his accounts.</p> <p>The Declaration recited the bond as being made to the “ said obligees;” that is, the persons before named as Justices of Nansemond County, and recited the condition as importing an obligation on the part of the Executor to make a just, and true account of his actings and doings, when required by the said Court of Nansemond County. It further averred, however, that although the obligation aforesaid does not show the names of the obligees, or persons to whelm the same was executed, 3ret the obligees aforesaid are those to whom, and in whose favour the said obligation was made and executed, as by the records and in the Clerk’s Office of the said County of Nansemond, (besides other evidence) will manifestly appear.”</p> <p>The Defendant Cowling, craved oyer of the writing obligatory, and also of the condition thereof, and demurred to the Declaration, for the following causes: 1st. Because there areno obligees actually named in the penalty of the said writing obligatory: Sklly Because in the condition, the name of the Executor, as well as the name of the Court into which he would have been bound to exhibit an account of his Executorial transactions, are omitted to be inserted: 8dly. Because the condition omits to designate and point out who shall render an account of his actings and doings as Executor a? aforesaid when thereunto required. 4thly. Because there is a variance between the Bond and Declaration. There was a joinder in demurrer, and the County Court gave Judgment for the Defendant.</p> <p>The Plaintiff obtained a Supersedeas, and the Superior Court of Law reversed the Judgment of the County Court, and ordered ail the proceedings subsequent to the Wvii of Enquiry to be set aside, and proceeding to give' such Judgment as the County Court ought to have given, overruled the demurrer, directed that the Defendant below should answer over, and remanded the cause to the County Court for further proceedings to be had therein, and gave Judgment for the Plaintiffs costs in the Superior Court.</p> <p>To that Judgment, the Defendant obtained a Supersedeas from a Judge of this Court.</p>

■ Debt by George Cabell, assignee of Benjamin Perleins, in the-Superior Court of Law for Bedford county, against Archibald Hatch-er, Edward, Hatcher, and Hardaway Hatcher, on a bond, in the penalty of $5, 527 62, conditioned to pay, on or before the 7th of March, 1819, the sum of $2,763 81, dated in April, 1818, executed by the said Hatchers to Perkins, and by him assigned to the Plaintiff.

Elizabeth M. Davis exhibited her Bill to the Chancellor for the Richmond District, setting forth that her uncle Anthony Card-died in the and without seised and possessed of real and personal estate: that his nephew James G. Rozce, administered on the estate. The intestate had had one brother, and one sister, but both of them died before him. The Complainant was the only child and heir of the brother.

This was an application to this court by-Mrs. .- Hatorff, widow of-Hatorff, deceased, for a mandamus to compel the judge of the circuit court of the city of Richmond, to allow her a homestead out of the estate of her deceased husband. The case is sufficiently state by Judge Staples in his opinion.

<p>This was an application to this court by Mrs.Hatorff, widow of-Hatorff, deceased, for a mandamus to compel the judge of the circuit court of the city of Richmond, to allow her a homestead out of the estate of her deceased husband. The case is sufficiently stated by Judge Staples in his opinion.</p>

This is a supersedeas to a judgment of the circuit court for the county of Pittsylvania, rendered in an action of debt brought by Coalman D. Bennett, “who styles himself treasurer of the Pittsylvania Savings Bank at Pittsylvania court-house,” against William A. J. Finney, Jesse Carter and Philip Thomas, surviving promissors of themselves and George Craft, deceased.

<p>This was a suit in equity in the circuit court of the city of Lynchburg, brought in September 1866, by Charles H. Hamner and others, three of whom were infants suing by their next friend, against Eobert J. Boaz in his own right and as executor of Meshack Boaz deceased, and his sureties and others, to have an account of his administration, and payment of the amount due from him to the legatees of Meshack Boaz deceased. The account was referred to a commissioner, who made his report; and the only question in the cause was as to the liability of the executor for four slaves, purchased by Emmett D. Boaz, who lived in the state of Missouri.</p> <p>Meshack Boaz, of the county of Appomattox, died in 1859, leaving a will, which was duly admitted to probate in the county court of that county at its November term of that year; and Robert J. Boaz qualified as his executor. The first item in the will is as follows: 1st. After my death, as soon as convenient,</p> <p>I desire my executor to advertise and sell my whole estate, both real and personal, on such reasonable credit as he may think best for the interest of my estate, and out of the proceeds of such he pay all my just debts and funeral expenses.</p> <p>The testator then proceeds to give his estate, in five equal parts, to the children of his five children, except one-fifth which he gives to his son Emmett D. Boaz. David Boaz, one of the sons, was dead, and his children lived in Missouri.</p> <p>The executor proceeded promptly to have the property appraised and sold. The appraisement took place on the 21st of November 1859, when the four slaves bought by Emmett D. Boaz were appraised at $3,700; and the sale was made the next day upon a credit of six months, when these slaves were sold at $4,955.</p> <p>The executor filed with his answer two letters of Emmett D. Boaz; the first dated October 23d, 1859, in which, after saying he cannot be present at a sale in November, he says, “I would earnestly request you and all the legatees to make such disposition of the blacks as would gratify their wishes and best secure their comfort and happiness. You are hereby particularly desired to buy any or as many blacks as may desire to be bought by me, to the full amount of my interest and the interest of David’s children in the entire estate; and in addition to my and David’s children’s interest, you are requested to use $2,000 in buying the negroes belonging to the estate that may desire to be purchased by me; provided you can make an arrangement to wait for the money for one year, at an interest not exceeding ten per centum, per annum. Any legatee wishing to buy any of the blacks, to gratify the blacks, shall have the full and entire amount of my interest and the interest of David’s children in said blacks for one year, by paying such interest as may accrue by law. Buy no negro for me unless they request it.”</p> <p>1876. March Term. Boaz’s adm’or v. Hamner & als.</p> <p>At the sale the executor bought for Emmett D. Boaz the four slaves, and retained them in his possession until the terms of sale should be complied with. This, however, was never done: Emmett Boaz gave his own bond for the amount without security; and on the 1st of January. 1861 he paid to the executor $550. The balance of the purchase money was not paid; and the slaves, except one that died, were retained by the executor until they were emancipated by the results of the war.</p> <p>The cause came on to be heard on the 29th of November 1867; when the court held, that the executor should be charged with the sum for which the said four slaves were sold on the 22nd of November 1859; and made a decree against the executor and his sureties, in favor of the respective plaintiffs and a trustee of the legatees of one-fifth of the estate, for the amount appearing due to them by the report. And directed the executor to render a further account.</p> <p>Robert J. Boaz having died, his administrator applied to this court for an appeal; which was allowed.</p>

<p>1. L died in 1863. By his will he gave to the children of a deceased daughter E, all infants, to two married daughters, to one not married, and to a son, the residuum of his estate; and appointed IC his executor and trustee, to hold the same for the separate use, &c., of his daughters, and after their death to their respective children. In 1863 IC filed a hill in the county court, alleging he had bought of L, in his lifetime, a tract of land called T, and had paid him the price, and was put in possession, but the title was not made; and he asked for a conveyance. With the bill he filed a paper signed by the widow and three daughters of L and their husbands, by which they express the wish that a deed for the land may he made to IC. When the bill was filed, an answer was filed for the parties who had signed the paper, and by a guardian ad litem for the infants. And at the same time a decree was made appointing a commissiouer to convey the tract of land to IC. At another term the decree was amended, and the commissioner was directed to convey also to IC a small tract adjoining T, with a mill on it. The commissioner died without conveying the land to IC; and IC sold it to W, but had made no deed. In 1869 the six infant children of E, and the two married daughters, filed their bill against IC and W, to set aside the decree of the county court and recover the land. They alleged that there was no written contract between L and K; that IC had not paid a dollar for it; that they knew nothing of the suit, and were not parties to it, and it was not binding on them. IC answered, admitting he had not paid any part of the price to L; but their contract was, that he was to be executor of L, and apply the price in the course of administration. W said he had bought and paid, with no knowledge of any act or conduct of IC which would defeat his title. The decree of the county court was held to be void and of no effect as against the plaintiffs. IC was removed from the trust, and another trustee appointed, who was decreed to hold the land under the same title and the same right prescribed by the will of L; and the decree was affirmed by this court.</p>

This was an action of debt in the circuit court of Rappahannock county, brought in January 1871 by John S. Fletcher against James F. Brown, Benjamin F. Miller and John Miller, upon a bond of $2,409.51, bearing date the 4th of September 1861, and payable on demand. The bond was perfect on its face.

<p>1. The $ 7, of the act of March 2, 1866, known as the stay law, and the acts amendatory thereof, do not apply to appeals, writs of error, or supersedeas; and therefore an appeal from a final decree made on the 1st of November, 1867, cannot be allowed on the 12th of June 1871.</p> <p>2. In a pending cause, R, who had been administrator of S, is decreed in November 1867 to pay to A, administrator of L, the amount ascertained to be due from him to S, and from S to L, which was the same. There is another cause in the same court, in which A, who had become administrator of S and R, are parties; and in this cause in June 1869 it was decreed that A, as administrator of L, should recover from himself, as administrator of S, the amount S owed L; and the decree of November 1867 was modified, and R was directed to pay to A, as administrator of L, the amount he had been directed to pay S’s administrator. Held: The decree of November 1867 having given all the relief asked for in that case, was a final decree; and its character was not altered by the decree of June 1869.</p>

<p>I' Norfolk's the owner of the ground which she has not disposed of, covered by water, lying between Parlcer street and the port-wardens line, both as riparian proprietor and as having had long possession thereof; and the city may maintain an action of unlawful entry and detainer, against any intruder upon said water lots.</p> <p>2. A patent for land constituting a part of the bed of a navigable river, conveys no title to it.</p>

This was an appeal from a decree of the circuit court of Fluvanna county, rendered on the 12th of April 1872, in a cause in which Thomas H. Tutwiler was plaintiff, and Wm. G. Paine, survivor of Kent, Paine & Kent, and others were defendants, and also from a judgment of the same court between the same plaintiff and Paine survivor defendant.

<p>This was an appeal from a decree of the circuit court of Fluvanna county, rendered on the 12th of April 1872, in a cause in which Thomas H. Tutwiler was plaintiff, and Wm. G-. Paine, survivor of Kent, Paine & Kent, and others were defendants, and also from a judgment of the same court between the same plaintiff and Paine survivor defendant. The case is substantially as follows:</p> <p>In September, 1860, Kent, Paine & Kent, issued their execution from the clerk’s office of the circuit court of Fluvanna, on a judgment on a forfeited delivery bond, against Thomas H. Tutwiler and John P. Baskett, for $637.06, to be discharged by the payment of $318.53, with interest thereon, from July 23d, 1860, and $3.23 costs. Said execution went into the hands ■of Joseph Payne, deputy for John Sclatér, sheriff of Fluvanna, on the 4th October, 1860, and was ble to the December rules. On the 1st of January, ° 3 1861, the said Joseph Payne became the sheriff of Fluvanna. The said execution never was returned. On the 13th February, 1871, Kent, Paine & Kent sued out another execution, returnable to April rules, 1871, for $637.06 to be discharged by the payment of $318.53, with interest from 23rd July, 1860, till paid, and costs $4.97, which was delivered to Lewis J. Walton, sheriff of Fluvanna, on the 15th day of February, 1871.</p> <p>Tutwiler filed his bill on the first Monday in April,</p> <p>1871, against Kent, Paine & Kent, John Sclater, Joseph Payne, and Lewis J. Walton, praying for an injunction against the last named execution, that the said execution might be quashed, and Kent, Paine & Kent be required to refund to him the sum of two years’ interest, which he had paid on the execution. The bill alleges rather inferentially and argumentatively than positively, that Tutwiler had paid sundry amounts on the first execution to Joseph Payne, after the return •day of the execution, to-wit, in and after May 1861, while said Payne was sheriff' of Fluvanna. In the same inferential and argumentative way, he alleges that Payne, while he was deputy, and before the return day of the execution, levied the execution upon his property or some portion of it. He gives at length his reason for coming to these two conclusions. He exhibits a receipt from Payne, signed by him with the addition to his name of “she’ll',” dated March 3rd, 1861, for $176.40| in part of execution of Kent, Paine & Kent. Tutwiler calls on the defendants to answer on oath; and accordingly, Kent, Paine & Kent answer •denying both levy and payment. Payne also answers, denying that he had levied the execution, and denying any payments by Tutwiler to him on account of the except the payment of $176.40-*- in May, 1861, and alleging that he received that as sheriff and not as the deputy of Sclater.</p> <p>After Tutwiler had filed his bill, to-wit, in September, 1871, he made a motion in the Fluvanna circuit court, to quash the last execution. Kent,' Paine & Kent objected on the ground that the same application was then pending on the chancery side of the court on bill and answers. But the court overruled the objection and examined two witnesses, Tutwiler and Payne, whose testimony is substantially the same as that found in the bill of the first and the answer of the latter.</p> <p>Ko depositions were taken on either side in the chancery cause:</p> <p>The court on the motion to quash, gave judgment in favor of Tutwiler on the alleged grounds, that the first execution had been levied on the property of Tutwiler, and that the amount of said execution' had been fully paid by Tutwiler “to the proper officer of said county, in whose hands the same had been properly placed.”</p> <p>On the 12th day of April, 1872, the chancery cause came on to be finally heard on the bill and exhibits, the answers of Kent, Paine & Kent, and of Joseph Payne, and the order of the circuit court of the county made in the aforesaid motion to quash, and thereupon the court perpetuated the injunction, and decreed that W. G Paine, surviving partner of Kent, Paine & Kent, should refund to Tutwiler the aforesaid two years interest, being $37, with interest from 11th February', 1869.</p> <p>Upon the application of Wm. G. Paine this court allowed an appeal.</p>

This was an appeal from a Decree of the Chancery Court of Win■chester. The Complainants were John Wade, and Hannah his wife, who was Hannah Myers, Joseph Purcell, and Susan his wife, who was Susan Myers, and Thomas Myers, and John Myers.

<p>This was an action of assumpsit in the circuit court of the town of Danville, brought in March 1872 by the Danville Bank against Pleasant Waddill. The declaration contained the common counts, and also a special count,, in which it was alleged that in April 1865 the Danville Bank delivered to Waddill $4,865 in gold, to be by him kept and to be delivered to the plaintiff when demanded.</p> <p>The defendant appeared and filed the pleas of payment, and the statute of limitations; on which issues were made up.</p> <p>On the trial of the cause the plaintiff moved the court to instruct the jury as follows:</p> <p>Evidence having been introduced before the jury at ■the trial of this cause, tending to show that the right of action set forth and relied on in the plaintiff’s declaration, first accrued on the 30th of May 1865, on motion of the plaintiff by counsel the court instructs the jury that in passing upon the issue raised in the cause by the plea of the statute of limitations pleaded by the defendant, they shall leave out of the computation of time all the period extending from the 2d of March 1866 to the 1st of January ,1869. But the court refused to give the instruction.</p> <p>The jury found a verdict in the following words: “We the jury find a verdict for the defendant.” The plaintiff thereupon moved the court to set aside the verdict and grant a new trial; but the court overruled the motion, and rendered a judgment in.favor of the defendant; and the plaintiff excepted. The exception contains the instruction asked by the plaintiff and refused by the court, as above stated. On the application of the plaintiff this court awarded a supersedeas.</p>

This was an action of trespass on the case in the corporation court of Norfolk, brought in December 1869, by Charles Ormsby, an infant, by his next friend, against the Norfolk and Petersburg Railroad Company.

<p>If a Plaintiff bring Trover or Detinue, to recover a horse, and Trespass, for taking the same horse, a Judgment for the Defendant in the Action of Trover or Detinue, is a good bar to the Action of Trespass; for, by bringing Trover or Detinue, he waives the Trespass.</p> <p>In Trespass, he might have recovered damages, not only , for the force and violence, but for the value of the horse; but, having elected to sue for the horse only, or its value, he is bound by his election.</p> <p>A Plaintiff cannot be allowed to sever one cause of action, and carve two suits out of it; therefore, if the Trespass consists in the Defendant’s stopping the Plain- . tiff’s waggon and team, and taking by force from the team a horse claimed by , the Defendant, the Plaintiff might in Tresspass recover damages for the injury in stopping his team, delaying him &c., as well as the value of the horse taken; but, if he elects to bring Trover for the horse taken, he cannot maintain Tres • pass for stopping the the team &c..for it was one act A Declaration in Trespass, which does not allege that the plaintiff has property in the thing taken, is bad on demurrer.</p> <p>If a Declaration in Trespass charges the Defendant with taking a horse from the Plaintiff’s possession, but not his properly, and with stopping his waggon and team, the residue of the horses being the Plaintiff’s property, a plea, which avers that this horse was geared with the others, that the Plaintiff’s waggoner (the Plaintiff not being present) endeavoured to carry off the Defendant’s said horse, by driving his team violently, and that the Defendant stopped the team to retake his horse, using no more force than was necessary for that purpose, is a good plea, the Defendant being justifiable in thus stopping the team for that purpose.</p>

<p>The vendee of land, on a credit, to whom a Deed is made, and possession given, is not excused from paying interest on the purchase money, the payment of the principal having been delayed by a third party, who set up an adverse claim, (and commence a course of litigation, which continued for ten years, but which termi- , nated in favor of the vendee’s title,) the vendee having continued all that time in possession, and enjoyed the issues and profits.</p> <p>The vendor only covenanted to sell and convey a perfect title, (which was so conveyed, as proved by the .result of the trial,' not that there should be no claimants, who would sue for it; lie therefore committed no breach of his covenant, and this is no ground to excuse the vendee from paying interest.</p> <p>The trouble and expense of defending the suit, is what every one, who is sued, is exposed tp, and the vendee’s costs cannot be set-off against the interest.</p> <p>To excuse the vendee from paying interest during the time that the adverse claim is in suit, it is not sufficient that he should be ready and -willing to pay the principal; it ought also to appear clearly, that he did in fact keep the money useless and unproductive by him, and that he gave the vendee notice that it was so unproductive.</p> <p>Although the adverse claim in this case was by the Commonwealth, who proceeded, to escheat the land by Inquisition, (which was opposed by the vendee by a 'Jilonsirans de Droit, who defeated the claim) the supposed seizin in Law into the hands of the Commonwealth by the office found, and the supposed liability of the vendee, to the Commonwealth, for the rents and profits, did not prevail over the actual seizin of the vendee, and as he actually enjoyed the issues and profits during the whole time, and by the result, became exempted from all liability for them to the Commonwealth, that supposed legal seizin of the Commonwealth, forms no excuse to the vendee for not paying the interest to the vendor.</p>

This was an action on the Case, brought by William G. Pendleton, in Iho Superior Court of Law for Henrico Ralston 8? Pleasants. The Declaration contained various counts. The first count demanded 416 dollars 50 cents, on account of one hundred and nineteen barrels of fine flour, sold Defendants at that price, and alleged an assumpsit to pay that sum for the flour.

By deed bearing date the 20th of April 1866, William Henderson, Sr., of Lancaster county, conveyed to Ms son, William Henderson, Jr.,five hundred acres ■of land and one-half of Ms stock of horses, cattle, •sheep, &c. In consideration of which, William Henderson, Jr., executed to him ten bonds of $300 each, payable with interest in one, two, &c., to ten years, and conveyed the property purchased in trust to secure the payment of the bonds.

' John Gouldin, of the county of Caroline, died in February 1863. He left a will, which was admitted to probate in the county court of Caroline; and his sons, Thomas W. and James F. Gouldin, qualified as his executors.

Randolph Harrison and Samuel Jones exhibited their Bill to Chancellor C. Taylor, in which they alleged that Executions to the amount of more than $700, were levied upon three girls, viz: Julia, Lavinia and Lucy, together with other property, belonging to a certain Charles Irvine, of the county of Buckingham: that at the sale which took place on the 22d June, 1827, under the Executions, the Plaintiffs became the purchasers of the three girls, and of three mules, at the price…

<p>This was an appeal from a Decree of the Chancery Court held in Richmond, rendered in favour of the Appellee, against the Appellant.</p> <p>William Cutler had brought Assumpsit against John Hinton, for money had and received to the Plaintiff’s use, in the Superior Court of Prince George. He obtained a Verdict and Judgment against the Defendant,.for #2,786 60 cents,-with interest from the 21st April, 1818. At that trial the Defendant offered in evidence, as a set-off, or discount against the Plaintiff’s demand, an account raised against Cutler, by John Hanserd 8y Co., for the sum of $ 795 10, of which a small part was for goods furnished Cutler himself, in March, 1S16, but the chief part to Theodericle Love, in December, 1S16, and January, 1817, and the testimony of Satmtcl Union, who stated that, in December, 1816, the Plaintiff, Cutler, desired him to say to any other merchants that he would pay for an}*goods sold to Theodericle Love, if the same did not exceed #4000: that he made this communication to Hanserd 8y Co., among others: that in consequence of this communication, Hanserd 8? Co, delivered to said Love, most of the goods in the account mentioned, and some to the Plaintiff himself: that he has examined the books of Hanserd 8? Co., and that on them the goods are charged to Culler, and not to Love: that before the day of the commence-' ment of this suit at Law, that co-partnership was dissolved, and that all right, title and interest in the stock in trade, as well as in the debts and credits, and books and accounts, were assigned and transferred, for valuable consideration, to the Defendant, John Hinton, and to prove this, a Deed was also given in evidence; but the Court refused to allow Ihc account to go to the Jury as a set-off, because it was a debt due to a partnership, &e. The Verdict and Judgment above mentioned, were the consequence.</p> <p>John Hinton then exhibited his Bill to the Chancellor, praying that the above-mentioned sum of #795 10, may be allowed to him as a discount, and that Ctdler may be injoined from enforcing so müch of his Judgment by Execution: he states, that Ctdler obtained the credit with Hanserd Co., (the firm consisting of Hanserd 8f Hinton, ) for his son-in-law Lovp, some small part of the account being for himself; that the partnership is dissolved, of which public notice is given, and the partnership effects and debts assigned to himself. He states, moreover, that Cutler had taken a Deed from Love, for property in Petersburg, and that the real consideration of the Deed was, the responsibility which Cutler had encountered for Love’s debts, and amongst others, this very debt.</p> <p>Ctdler, by his Answer, denied that he ever made himself responsible to the complainant for goods purchased from him by Love, or that he ever authorised Love to obtain them on his credit: he denies that Love ever conveyed to him any property to pay the debt, and asserts that Love is still considerably indebted to him. He then gives a narrative ef Love’s marriage with his daughter;, of his becoming in debt to him; of his indiscretions and extravagauce; of his promises to reform, and of his proposal to retire to the country, and keep ajsmall store. He states, that he made some advances to him, him credit at one or two stores, to obtain such as were immediately necessary, for which he, the Defendant, paid; that the Defendant promised Love that if he would reform, he would make him a semi-annual allowance for several years; that at Love’s request, he repeated this promise in the presence of Samuel Hinton, that there might be a witness to the promise, and perhaps that it might improve Love’s credit; that the promise would have been performed, if Love had complied with the condition, but he became more intemperate than ever, and the Defendant then withheld from him any further advances, that he might preserve for his wife and children those funds which, if given to him, would be squandered. The Defendant, not meaning to cast any imputation on Samuel Hinton, the witness, supposes he may have misunderstood the conversation, and says it is impossible he could have been so stupid as to authorise the witness to proclaim to the merchants of Petersburg, that he meant to pay some thousands of dollars, to just as many as Love could get credit with for that amount. As the conversation has been misunderstood, and may be'incorrectly represented in evidence, the Defendant considers himself compelled, in the just defence and protection of his estate, and of his family, tp insist on the benefit of the Statute for the prevention of Frauds and Perjuries. On this Answer, issue was joined.</p> <p>The evidence given, is to the following eifect.</p> <p>Samuel Hinton, in an affidavit, says, that in December, 1816, Cutler requested him to inform lian <tcrd 4’ <."<?-• or a03 other person, of whom Love might purchase goods, that lie would pay for Love four thousand dollars: that he gave Hanserd 4' Co. this information: that goods were furnished Love, and charged té Guile",': that a part of Hanserd 4’ Co’s, account was for goods got by Gutter: and the witness expressed the opinion, that the goods delivered Love were sold from the information the witness gave to -Hanserd 4' Go., and exclusively on the responsibility of Cutler.</p> <p>Samuel Hinton afterwards gave a deposition, taken by virtue of a commission.</p> <p>He says, that in December, 1816, Cutler called on him and requested him to tell Hanserd 4’ Co., and any other person of whom Love might wish to purchase goods, that he would pay for said Love, the sum of % 4,000: that it was not in his power to advance the money at that time. In answer to interrogatories by the Plaintiff, he says, that he gave this information to Hanserd <§- Co. a few moments after Cutler made the request, and before the goods were purchased: that, in his opinion, they would not have sold the goods, nor would Love have attempted to make the purchase, but on the faith of Culler’s promise: that Love was not present, when Culler requested the witness to give the information: that the goods were charged to Cutler on their books: that %645 35, are charged to Cutler, for goods delivered to Love; and §42 13, for goods delivered Cutler: that TheoderieJe Love is considered by the witness, as a man of truth, honor, and integrity.</p> <p>Samuel Turner deposed, that the mutual friends of Love and Cutler, suggested to the latter, in the fall and winter of 1816, when the habits of the former had undergone a change for the better, tho propriety of advancing funds to Love to enable him to commence a small mercantile business: that it was finally agreed between them, that Cutler would give to Love four thousand dollars, as a capital to commence with; to be paid by Cutler at different periods, and in the mean time he authorised and requested the witness, to inform any gentlcman from whom Love might wish to purchase goods, of the arrangement: that the witness did make the statement to Colquhoun 4’ Co., from whom Love bought goods: that, pending this arrangement, Isove exhibited a statement of his debts, amounting to § 5,000; the witness was a principal creditor, and Cutler only a creditor for two or three hundred: witness liad taken a Deed of Trust on Ijove’s house and lot: and it was agreed between the parlies, that as Love was about to move, he should make a Deed for the lot to Culler: that the witness should be authorised to sell it, pay himself, and that the balance should be appropriated to the discharge of the before mentioned debts: that witness sold the lot, and after paying himself, there remained two negotiable notes of § 1,500 each, which Cutler demanded of him: lie refused to deliver them, but knowing that Love was indebted to Jr.Sn Hinton, the witness delivered them to him, in order the better to secure the completion of the contemplated arrangement of Love, say, the payment of his debts: the witness further said, in answer to interrogatories bjr the Plaintiff, that his impression was, at the time of the arrangement, that Cutler honestly intended to do his son-in-law a favor, but his conduct since, proves the reverse: that Cutler withholds ivom. Love’s creditors what they are justly entitled to: that Love is a man of strict honor and probity, and that witness’s opinion of Cutler has undergone a change.</p> <p>Theodorick Love testified, that in the fall of 1S16> his father-in-law, Cutler, agreed to give him #4,000, to commence a mercantile business, to be taken in goods, it not being convenient at that time for him to advance the money, and the goods could bo got on a credit: to this end, Cutler went with the witness to Samuel Hinton, and Turner, and requested them to go with the witness to any merchant, of whom the witness might wish to purchase goods, and inform them that the witness had the privilege of buying to the above mentioned amount: that in making the purchases, the witness did not exceed the #4,000; and a part of the goods he bought of Hmiserd fy Co. to the amount of nearly #700: that being about to leave town, he offered his lot for sale publicly, but failed to sell: hie object was, from the proceeds, to pay his debts: that he was advised to make a Deed to Dr. Cutler, to prevent a sacrifice, he being a monied man, and that no one would presume that ho would sell it for less than its value; but, there was a perfect, full, and positive understanding, between Cutler, the witness, and his friends, that he was not to consider himself the owner of the property, but that it was to be sold, and the proceeds applied to the payment of witness’s debts: that Cutler was a creditor to a small amount, for which he was to be paid, but to the balance he had no earthly right: the witness, however, on further reflection, determined-not to deliver the Deed to Cutler, and actually handed it to John Hinton, and requested him not to deliver it to Cutler, or any one else, till he received the proceeds of the sale, except so much as would pay Turner’s claim, which was nearly two thousand dollars. The residue of this witness’s evidence relates to a subject having no bearing on the case.</p> <p>The Chancellor being of opinion that the undertaking oí.Culler was not collateral, but direct, and that, the whole credit was given to him, perpetuated the Injunction. From his Decree, Culler apr pealed.</p>

ne 1854, John Beauchler, a German by birth, purchased of Luke Osborn a small tract of twenty-four acres of land, lying in the county of Alexandria, within some three or four miles of Georgetown, at the price of $850. Though the building upon the land was very small, Beauchler seems to have lived in it until 1861, when the late war haying broken out, and the union forces having taken possession of that part of the county, he removed with his family to Fairfax court-house.

Edmund Webster exhibited his Bill to Chancellor C. Tayloe, setting forth, that in the year 1816, he, the Plaintiff, and a certain Daniel Couch, entered into an agreement, whereby the Plaintiff became bound to convey to Couch sundry houses-and lots in the City of Richmond, for which he was to receive in exchange from Couch, a good title in fee-simple to a tract of land lying on the waters of Gold Mine Creek in Hanover, containing about eight hundred acres of land: that in…

John Bowyer sued out from the Justices of Greenbrier County, a Writ of Unlawful Detainer against Joseph Martin and Charles Carraway, for the purpose of being restored,-to the possession of a certain tenement in the said County, containing, by estimation, twenty-four acres of land, including the' Muddy Creek Sulphur Springs, commonly called Patterson’s Sulphur Spring Tract.

<p>Although the submission of a case to arbitration^ inhere a suit is depending in a Court of Law, does not come within the provisions of the Statute concerning Awards, yet the Court, (in which the submission is made a rule of Court) has a general superintendence over the award made by virtue of such submission, and may annul it, for misbehaviour of the arbitrators, apparant mistakes on its face, &c. It is in such case to resort to a Court of Equity to annul it.</p> <p>Two arbitrators meet to decide the case referred to them, on the day appointed, and continue the case for good cause shown by tbe Defendant. On the same day they determine that they will no longer act as arbitrators, and give notice cf their declension to the parties But on being pressed by the Plaintiff, they are pi evaded on by him to act again, and authorise the Plaintiff to give notice to the Defendant, of the lime and place for arbitrating it: the Defendant, on the day, and at-the place, protests against their power to act, and refuses to submit his Gase, or Iris evidence to them The arbitrators, however, proceed to make up an award on the Plaintiff’s ex parte evidence. This is such misbehaviour as should annul the award,</p> <p>A Defendant files four pleas, one general, and three special. The third plea, which is the second special plea, is bad; and the fourth plea, being the third special plea, is good. The Record states that the Plaintiff objected to the reception of the third special plea, which objection was over-ruled. There is no other designation of the plea which was objected to, but by its number. The Court of Appeals has no other guide than the Record, and as the third special plea was good, (although tire second was bad,) they must say that the objection to the third special plea was properly over-ruled.</p>

<p>I. In an aetion at law, which is submitted to the judgment of the court without a jury, the court renders a judgment, to which one party excepts, and it being near the end of the term, the court gives the counsel time, until the first .day of the next term, to prepare the bill of exception; but judgment is entered. The court cannot give such leave, and the bill of exception cannot be made a part of the record.</p> <p>2. Even if the court had authority to give the time until a day certain in the next term to prepare the bill of exception, if the bill of exception is not tendered to the court on that day, it cannot afterwards be received.</p> <p>3. In cases when it may be important to give time until the next term to prepare the bill of exception, the case should be kept open, and the judgment should not be entered until the next term.</p>

<p>lil an action of Detinue fora slave, between the child, who is sole distributee of an intestate father, and a purchaser from the widow’s second luisband, an order of Court, appointing Commissioners to assign the widow her dower, although made ecr parte, and on motion, without regular proceedings in Chancery, and the report of the Commissioners, are proper evidence, to show that the slave was al’otied to the widow for life only; especially, where the widow and her second husband were present, and consenting to the allotment.</p> <p>The Answer of a Defendant in Equity, is competent-evidence against the same Defendant, in a suit at Law against him, although the Plaintiff at Law was not a party to the suit in Equity.</p> <p>The declarations of a vendor of a slave, made of.ee the side, are good evidence against the vendee, if they accord with the acknowledgments of the vendee himself, previously made.</p> <p>If a widow, who is also Administratrix of an estate, appropriates the profils to the purchase of slaves, or other personal property, and afterwards she and her second husband agree to consider the property so purchased as part of the intes late’s estate, (in lieu of accounting for the estate,) and to take the property so -purchased as part of her dower, or distributable share for life, such arrangement is binding on them, and on purchasers from them, so as to vest the title, after the death of the widow, in the distributee of the first husband, in like manner as if that particular property bad belonged to the intestate in his life-time.</p> <p>A parol gift of a slave by a father to an infant child living with him, by a declaration that the gift is made, without delivery of possession, is not good against a subsequent purchaser of that slave, although such purchaser knew at the'time of his purchase, that the father had so made the gift.</p> <p>If an erroneous instruction be given to a Jury by a Court, and it appears, by other Bills of Exceptions, that the question, on which that erroneous instruction was given, did not arise in the cause, the Judgment will be affirmed, notwithstanding the erroneous instruction.</p>

This was a suit in equity in the circuit court of Fauquier county, brought in 1859 by creditors of Henry T. Dixon against said Dixon, and Annie R. his wife and their children, to subject the real estate of Dixon to the payment of his debts.

This was an action of ejectment in the circuit court of the county of Alexandria, brought, in November 1872 by Roger P. Chew and Louisa his wife, and others, heirs at law of Charles Alexander, Jr., deceased, against the Alexandria and Washington railroad company, to recover a strip of land fifty feet in width by about three quarters of a mile in length, being the half of a section of land one hundred feet in width, conveyed by the said Alexander for the purposes of a highway.

Mary G. Gwatkin sued out a Writ of Capias ad Respondendum, in debt, against Amos Hoff and Charles Ming, from the Office of the Superior Court of Law for Prince William County. It was returned “No inhabitant,” as to Hoff, and the suit abated as to him.. It was executed on Ming, who gave Jesse Green as his appearance bail. The Bail-Bond was copied into the Record, by which the Plaintiff was called Mary G. Gwatkin.

John M. Smith, exhibited his Bill to the Chancellor of the Richmond District, setting forth, that in the year 1814, he purchased of a certain William Lamb, a lot of land in the City of Richmond, forty-three foet one way, and one hundred and thirty feet the other, for which ho agreed to give seven hundred dollars: that on the lot thus purchased, there stood a small house, of which, with the lot it„sslf, the Plaintiff was immediately put in possession, and that he has paid the…

<p>Possession is indispensably necessary to support trespass guare clausum fre-</p> <p>Guardians in Socage, and Testamentary Guardians, (although they have no beneficial interest, yet) have a legal interest, and the possession of the Ward's land during the Gurdianship. If, therefore, a person trespass on the lands of an infant, and cut and carry away his trees, without the license, of the Guardian, the Ward cannot maintain Trespass, but the Guardian may, and must account to the W'ard for the damages recovered</p> <p>If the trees are cut and carried away by permission, of the Guardian, no Trespass is committed, and the infant, even after the Guardianship has ceased, cannot maintain Tresspass for the act. The wrong must be compensated to the Ward by the Guardian.</p> <p>-It seems that if timber-trees, growing on the inheritance of a Ward, are thrown down by tempest, or otherwise, they become personal property, and the Guardian has a legal right to sell them, as being perishable and of no value except as a subject of sale, and in such case, the infant cannot bring Trover for them.</p>

<p>This was an action brought in forma pauperis in the Borough Court of Norfolk, by Moses, a negro man, to recover his freedom of the Appellee, Denigree, by whom he was held and treated as a slave. Judgment was rendered for the Plaintiff in the Court below, and a Supersedeas obtained, to bring the cause before the Superior Court of Norfolk County. The Superior Court reversed the decision of the Court below, and the Defendant, Moses, appealed to this Court.</p> <p>At the trial of the ease in the Borough Court, the parties, by their Attorneys, agreed a case in lieu of a special verdict, which sets forth the following, facts: Samuel Pretlow of Surry County, being at that time the owner of the Plaintiff, then a little boy, on the 13th day of November, 1781, signed, sealed and acknowledged, in the presence of two witnesses, a writing purporting to be a Deed of Emancipation in favor of the Plaintiff, in the following words: “I, Samuel Pretlow, of Surry County in Virginia, after deliberate consideration, and from the conviction of my own mind, being fully persuaded that freedom is the natural right of all mankind, and that no Law, moral or divine, hath given me a right to, or properly in, the persons of my fellow-creatures; and being desirous to-fulfill the injunction of our Lord and Saviour Jesus Christ, by doing to others as I would be done by, do therefore declare, that having under my care a negro boy, named Moses, aged about six years, do therefore, for myself, my heirs, executors and administrators, hereby release unto him, the said Moses, all my right, interest and claim, or pretension of claim whatsoever, as to his person, or to any estate he may acquire, after he shall attain to the age of twenty-one years, which will be on the 31st day of the twelfth month in the year 1796, without any interruption from me, or any person claiming for, by, from, or under me. In witness whereof, I have hereunto set my hand and seal, this thirteenth day of the eleventh month in the year of our Lord 1781.” The above Deed of Emancipation was recorded on the 26th day of April, 1819, in the County Court of Suj’ry, on proof of the hand-writing of one of the subscribing witnesses, (both of the witnesses being then dead.) On the 14th day of November, 1781, Samuel Pretlow made his Will, which was recorded on 23d of April following, after the death of the said Pretlow. The Testatot devised a tract of land to his son, Samuel, in fee, and also the labour of his negro, Robin, and three others, until they “become free, agreeable to the manumissions I have given under my hand and seal,” and “bequea ed to his daughter, Mary» to her, and her heirs forever, the labour of four negroes, viz: Moses, Joe, Tom and Tabb, until they become free.” The said- writing, purporting to be a Deed of Emancipation, was found among the papers of the acting Executor about fourteen years before the institution of this suit, and was never given to the Appellant, but had been offered by the Executor to the Court many years before, to be recorded, when the Court refused to receive it. Samuel Pretlow remained in possession of the Plaintiff till his death. After that, with the assent of the Executor, the Plaintiff came into possession of Mary Pretloio, the daughter and legatee of the Testator, and so continued until the intermarriage of Mary Pretlow with one Samuel Hart. The Plaintiff was held by said Hart until his death, in about 1800, when he was sold by Hart’s Executor to the Defendant, Denigree. The Plaintiff came of age on the 31st of December, 1796.</p>

<p>I, H by his will gave certain lands, which he describes, to his sons J and D; and, by another clause, he says if his son J should die without issue, he gives certain part of the land given to him to D; and if both of his sons should die without issue, then all of the aforesaid lands should go to his daughters, naming them. J died without children, and the lands went into the possession of D; and D afterwards died without children, leaving a widow, to whom by his will he left all his estate, and appointed her his executrix. He owned, however, only personal estate. More than a year after D’s will was admitted to probate, his widow filed her bill against the executory devisees of H, to recover dower in the lands which had come to D under the will. Held :</p> <p>1. The widow of D is entitled to dower in the said lands.</p> <p>2. The act, Code of 1873, ch. 106, $ 4, does not apply to the case, and her right to dower is not barred.</p>

<p>The Act of Pennsylvania of 1780, for the gradual abolition of slavery, clearly includes all negro and mulatto children born of slave mothers after the passage of the Act, except in the cases excepted by the 10th section, such as domestic slaves attending on Delegates to Congress, &c. &c.</p> <p>If, therefore, a citizen of Pennsylvania, after the passage of the Act, bequeath a female slave to a citizen and resident of Virginia, and after the legatee’s title has accrued, the slave have a child born in Pennsylvania, and the child be then brought to Virginia, together with its slave mother, by her master, such child may recover its freedom in the Courts of Virginia.</p> <p>It seems, that though bv the Act of Pennsylvania, the condition of the mother is so far changed, that her children born there, cannot be slaves, yet if she be removed by her master, her children born in Virginia are slaves, though those, born in Penmy ¡vania are free.</p>

This is a suit in equity in the circuit court of Halifax county, brought in March 1872, by Lucy V. Medley, the widow of Granville 0. Medley, deceased, against the executor and devisees of Isaac Medley, to recover her dower in a tract of land devised by said Isaac Medley to his son Granville C. Medley. The only question in the cause arises upon the construction of the said devise, which is set out in the opinion of Judge Christian.

This was a bill in equity, filed by M. E. Tate in the circuit court of Smyth county, to enjoin and restrain Samuel Vance from cutting- the timber on land which he claimed belonged to him. Plaintiff alleged that he purchased the land in 1872 from the Mc-Creadys, who had been in peaceable possession of it for fifty years, and they sold to him, and put him in possession; and that he still holds possession.

<p>On the 28th July, 1823, Thomas Atkinson survivor of Peterson G.oodwyn and four others, Justices of Dinvviddie County, for the benefit, and at the costs of Mary W, Lanier, sued out of the Superior Court of Law for the Town of Petersburg, a Writ of Capias ad Respondendum against William Wills and John Hamlin-, on a Guardian’s Bond executed by the former as principal, and the latter as surety. The Writ was executed on Wills, and returned “Not found,” as to the other Defendant. An Alias was, in the following September, issued against Hamlin, returnable to the November Rules, and returned executed. The Plaintiff filed his Declaration against both Defendants at the September Rules, which sets forth the Bond, of which the condition is that the Guardian, Wills, shall deliver to Mary W. iMnier, the Ward, on her attaining to lawful age, all the estate due to (lie said orphan, and to account, &c. The breaches assigned, are the neglect and refusal to deliver over the estate, and the non-payment to the Ward of the sum of $373, with interest from the 1st March, 1819, found due from the Guardian. A common order was entered against the Defendant, Wills, at the September Rules,- which was confirmed at the October Rules, and a Writ of Enquiry then awarded; and at the October Term, the Court not being held, the cause was continued as to him. At the November Rules, the common order was entered against the other Defendant, Hamlin, which was confirmed, and the Writ of .Enquiry awarded at the December Rules. At the next Term of the Court, which was in May, 1S24, an entry was made on the Record, that “this suit abates by the death of the Defendant.” [Although it must liave been on the docket against two Defendants, 3'et it ivas Abated only as to one, without naming which one.] At the October Term, 1824, the entry is, Hint “this-suit, which stands for revival, is continued till the next Court.” .At the May Term, 1S25, the Plaintiff, at the instance, of the relator, sued out a Scire Facias to revive, against Viuant Quinichett, Administrator of John Hamlin, deceased; and that not being executed, an ¿Illas Scire Facias was sued out against the same person, at the rules in August, 1835, returnable to September; and that being returned executed, a Judgment by default was entered against the Administrator, with a Writ of Enquiry of damages. At the October Term, 1825, the cause was continued. At the May Term, 182G, iho Defendant (who is described as Administrator of Lohn Hamlin, deceased, who was coobligor with William Wills, deceased,) pleaded e( Conditions performed,” on which issue being joined, a trial was had, and a Verdict and Judgment rendered in behalf of the Plaintiff for the debt in the Declaration mentioned, to bo discharged by the payment of §287, xvith interest from the 1st October, 1S29. There was a Bill of Exceptions taken to two opinions of the Court given during the trial. It stated, that the Plaintiff introduced Robert Lanier as a witness to prove that he, as the Administrator of his mother, had paid to William Wills in his life-time, as Guardian of the beneficiary Plaintiff) the sum of about $300, at different times in the years 18OS-’9 and ’10, it being the amount to which she was entitled from t.he said decedent’s estate:1 that he took the said Wills's receipts for the sums so paid: that on the evening before the witness gave evidence, he was requested by the Plaintiff’s Counsel to bring the said receipts, but not recollecting where he had put them, and thinking it probable he could not find them, he had made no examination for them; whereupon, the Defendant objected to the said evidence, and required the production of the said receipts, but the Court over-ruled the objection, and admitted the tcsli•mony.</p> <p>The Defendant afterwards proved that in 1819, a settlement had taken place between the said Mary TV. Lanier, then of full age, and her said Guardian, in which the latter was found indebted to her in the sum of $373, for the payment whereof, he executed his bond to her payable on demand, with interest from the date; that she took the said Bond, and had received two partial payments, which were credited on the same, but that a balanee xvas still due on the said Bond, to recover the amount of which, this action was brought; whereupon, the Defendant moved the Court to instruct the Jury, that the settlement of the Guardi an ship accounts between the Ward, after she was of age, and her Guardian, and the execution Of the Bond by tire latter to the former, together with her accepting Ihc said Bond, and receiving partial payments thereon, discharged the Testator of the Defendant from his liability as surety of the Guardian for the sum for which the said Bond was taken; although there was no evidence to prove, that the said Bond was accepted by the said Mary T-V. Lanier, as full payment or satisfaction of the claim against her said Guardian; which instruction the Court refused to give, and the Defendant excepted. The case came here by a Supersedeas to the Judgment.</p>

<p>I by ber will gives to her neice B for her life, the interest on a debt due I, of ^500. She then says: After the death of B, I give the said sum of money to L, in trust for C, daughter of E; and I request that it be invested in bank-stock, and applied by L for the benefit of C, as he shall think proper. Item : In case the said C shall die under the age of twenty-one years, or marries, I direct that the stock before given to L for her benefit, be vested in him in trust for E her mother, and M, my great-nieces, to be advanced to them in equal portions, as said L may think proper, free from the control of their husbands. At the death of B, C was married, and E and M were dead, leaving children. Held :</p> <p>I. The bequest to C is not on a condition in restraint of marriage, but is a conditional limitation; and the bequest over to E and M on the marriage of C is valid.</p>

This was an appeal from a Decree of the Superior Court of Chancery for the Richmond District, reversing a Decree of the County Court of Buckingham, by which a Bill of Injunction, obtained by the Appellants, had been perpetuated. The Chancellor dissolved the Injunction, and dismissed the Bill. No other statement of the case is necessary than that which is contained in the following opinion.

<p>A Committcee of a Lunatic, appointed by the Chancellor, ia a mere Commissioner of the Court, managing the person and estate of the Lunatic, under the direction of the Chancellor, and is responsible to the Court as a receiver, removeable in its discretion, and not liable to be sued at Law, on claims either against the Lunatic himself, or his estate, as in the case of a Committee appointed under the Statute-</p>

Olivia Downman and Sarah Downman, filed their Dill in the Superior Court of Chancery at Fredericksburg, against the Appellee, Benjamin D. Rust, both in his own right, and as Exeeutor of Elizabeth II. Rust, and others, to recover certain legacies bequeathed to the Complainants, by the said Elizabeth H. Rust.

This case was heard in Richmond, and was decided at the term of the court at Wytheville.„ It was a suit in equity in the chancery court of the city of Richmond, brought in January 1871, by J. W. Gill… Held: First. That the statute of limitations was no bar to the suit. Second.

This was an appeal from the Chancery Court of Williamsburg, dissolving an Injunction obtained by the Plaintiff, Samuel Brown, against Stark Armistead, Administrator with the Will annexed of David Wright, deceased, and others, and dismissing his Bill. The case is fully stated in the following opinion of the Court.

<p>This was an action of unlawful detainer in the cii'' cuit court of the county of Russell, brought in January 1874 by William JD. Porter against Elizabeth E. Porter. On the trial the parties agreed the facts, dispensed with a jury, and submitted the whole matter of law and fact to the court. The agreed facts were as follows:</p> <p>That Elizabeth E. Porter owned in fee simple the land in controversy, which she has never by deed conveyed away. That while she thus owned the land she intermarried with William D. Porter, who, as her husband, took and held possession thereof. That during coverture she had two children, issue of the said marriage, born alive. That the said E. E. Porter abandoned her said husband, eloped with an adulterer, and was guilty of adultery; that the said William D. Porter sued for a divorce in the circuit court of Scott county, which was the county of his residence and the county in which he had lived with the said E. E. Porter last before her elopement; that said bill charged adultery, and also desertion for five years, on the wife’s part, as grounds of a divorce; and the said court, at the November term thereof, 1878, rendered a decree in the said suit, in the words and figures following, to-wit:</p> <p>“ This cause came on to be heard on the bill and evidence in the cause; and it appearing that the order of publication has been duly posted and published, it is decreed and ordered that the plaintiff be divorced from the defendant, and the bonds of matrimony as to him between them is forever dissolved, and that the plaintiff' recover of the defendant his costs; and the cause is stricken from the docket.” And it is further agreed that William D. Porter, after the divorce, did not live on the land, but claimed the possession, cultivated and controlled it until the defendant, E. E. Porter, in the winter of 1878, entered peaceably into the possession of said land, but without the consent and against the will of the said W. D. Porter, and was withholding from him the possession thereof at the time the writ issued.</p> <p>The court rendered a judgment for the defendant; and thereupon William D. Porter applied to this court for a writ of error and supersedeas; which was awarded.</p>

<p>This was an appeal from a Decree of the Court of Chancery for . the Richmond District. The case is fully stated in the following opinion of the Court.</p>

<p>1 Anotice by the supervisors of a county to D. late sheriff and his sureties, that they will move the county court at its November term, to render judgment against them for the sum of $4,840.03, the same being the amount of said D’s deficiency, and default for county levies for the year 1869, that went into D’s hands as sheriff as aforesaid, and which he had failed to Recount for, &c., is sufficiently specific and definite to warrant a judgment thereon.</p> <p>2. The rule governing notices is, that they are presumed to be the acts of parties, and not of lawyers. They are viewed with great indulgence by the courts, and if the terms of the notice be general, the court will construe it favorably, and will apply it according to the truth of the case, as far as the notice will admit of such application. If it be such that the defendant cannot mistake the object of the motion, it will be sufficient.</p> <p>3. Upon a notice to a sheriff and his sureties of a motion against them for his failure to account for taxes, they appear and ask for a rule upon the attorney for the commonwealth to show cause why the record of the bond of the sheriff should not be amended, corrected or vacated; and several of the sureties file affidavits, in which each states the grounds on which he relies, to show he is not bound by the bond. One says he signed on condition that other persons should sign. Another says he signed the bond, but never acknowledged or delivered it, and after signing he determined not to acknowledge it. Another says he acknowledged it in court, on condition that all the parties who signed would acknowledge it. In fact, the defendants had either acknowledged the bond before the court or before a justice; and none of these conditions appeared on the record or bond, or were made known to the court. These affidavits present no ground for the release of the parties or for the rule.</p> <p>4. It is not necessary that the sureties of a sheriff in his official bond should acknowledge the same in court. The bond may be acknowledged by them in court, or its execution out of court may be proved by witnesses. And there is no statute or rule of law requiring such proof to be adduced at the time the bond is received by the court. With or without such proof, the parties who had actually signed would be bound by the deed.</p> <p>5-A person who signs, seals, and delivers an instrument as his deed, will never be heard to question its validity, upon the ground that it was not acknowledged by him, nor proved at the time of the delivery. It is the sealing and delivery that gives efficacy to the deed; not proof of its execution. And this principle applies to all bonds, whether executed by public officers or private persons, unless there is a statute making the acknowledgment, or proof in court essential to the validity of the instrument.</p> <p>6. In an action on an official bond, if there is no record evidence, the execution of it may be established by the testimony of attesting witnesses, or if there be none, by proof of hand-writing, or by discovery lfom the adverse party.</p> <p>7. On a notice of a motion against a sheriff and his sureties on his official bond, the pleas of “ non damnificatus'’ and ‘ ‘ nil debet" are not proper pleas.</p> <p>8. The fact that the names of two of the parties who executed and acknowledged the bond, were not in the body of it, does not invalidate it as to them.</p> <p>9. On a motion against a sheriff and his sureties for the county levies he had failed to account for, the report of the clerk, who had been di ■ rected by an order of the county court to settle the sheriff’s account, though made with the sheriff without notice to the sureties, is competent evidence against them to show the amount for which the sheriff is indebted. If they had notice, as the statute provides, the report would be conclusive upon them; without notice, it is prima facie evidence of the amount of the sheriff’s indebtedness.</p>

These cases were all considered together; the first and third were on appeals from the Superior Court of Fauquier; the second on a Szipersedcas to a Judgment of the same Court. Iu the first case, the Plaintiff, Jonas Montgomery-, a negro man,, brought his suit in- forma pauperis, to recover his freedom from Robert Fletcher, the Defendant, who held him as a slave. At the trial in July, 1826, the Plaintiff excepted to an opinion of the Court.

<p>A'ceoi'dirig' to the equitable^ and correct construction of our Statute concerning Executions, (~section Sd,J if a creditor, by Judgment or Decree, sues out a Fi Fa. which is levied, and returned satisfied in part only, he may take out another kind of Execution, as thelSleg-ii, without pursuing the Fi. Fa. to a return of JYihil.</p> <p>Conveyances from a father, who is in debt, to his sons,- without any valuable consideration, declared to be grossly fraudulent, and decreed to be set aside at the suit of the creditors of the lather, who obtained their Decrees long after the execution of the Deed.</p> <p>If a father purchase lands, and direct the conveyance to be made to bis child, the conveyance may be impeached for fraud by a creditor of the father. Therefore» where a father, JB., purchased two tracts of land of C„ under an agreement that the legal title should be withheld till the purchase money be secured, or paid, and the father held the possession as real beneficial owner for several years, and then being in debt, directed the vendor of the land, C.,. to- convey to-his son, VK, which was done, and gave possession to his said son, no valuable consideration having passed from the son, either to his father, or the vendor, and then direct- .. ed his said son to convey and deliver a part of the said land to another son, 1‘., which was done, no valuable consideration passing, these conveyances decided to be fraudulent and void, and decreed to be set aside, and the lands to be sold, . at the suit of the creditors of the father.</p> <p>Although if a son obtain a conveyance for land purchased by his father, that conveyance may be set aside for fraud by a creditor of the father, whilst the land is-in the hands of the son; yet, if the son sell and convey the land to a third person for valuable consideration, who has no notice of the fraud' between father and son, such third person being a bona fide purchaser, will be protected in his purchase against the creditors of the father, from the operation of the Statute of Frauds, by its proviso.</p> <p>And if the Deed of such Bona fide purchaser be not duly recorded, yet he will be, protected in his purchase against a creditor of the father, who obtains a Decree-against the father, after the bona fide purchase so made, because such a purchaser has a prior equity to such creditor. For, if the original vendor had never made-a Deed to the son, yet the purchaser, holding the equitable title transferred from, the father to the son, and from the son to him, would have had a better right to-call on the original vendor for a conveyance of the legal title, than any creditor of the father obtaining a Judgment against him, after his transfer of the equitable right to the son</p> <p>If there be two Decrees on the same day against a Defendant’s land, the whole, and not a moiety only of the land, ought to be.directed to be sold; for, at Law, each of two Judgments would have taken a moiety of the land, and both of course the whole, if it had been, extendible at Law.</p>

This was an action of ejectment in the circuit court of Washington county, brought by A. T. Wilson against Thomas C. Tan-caster. On the trial of the case the jury found a special verdict, upon which the court rendered a judgment in favor of the plaintiff. And thereupon Lancaster applied to a judge of this court for a writ of error and supersedeas; which was *awarded. The case is stated by Judge Christian in his opinion.

In January 1874, H. C. Gibbons gave notice to James M. Johnson that he would move the county court of Washington county to quash two executions, and also two writs, of venditioni exponas, which had been issued from the clerk’s office of said county court in the name of said Johnson against said Gibbons and others. By consent the cases were removed to the circuit court of Washington county, and came on to *be heard in that court in February 1874.

<p>In January 1874, H. 0. Gibbons gave notice to James M.’ Johnson that he would move the county court of Washington county to quash two executions, and also two writs of venditioni exponas, which had been issued from the clerk’s office of said county court in the name of said Johnson against said Gibbons and others. By consent the cases were removed to the circuit court of Washington county, and came on to be beard in that court in February 1874. The material facts are as follows:</p> <p>In 1860, Bekem & Campbell, attorneys at law, practising in the county of Washington, received from Johnson two notes, and gave him a receipt therefor, in which they say:—Received of James M. Johnson for collection a note drawn by A. F. Bradley and payable to H. G. Gibbons for $500, dated, &c.; another note drawn by same, payable to same, dated at the same time, and payable four months after date for $2,000, at, &c. On the above notes we are to bring suit, and prosecute them to judgment, and to have a .fee of five dollars in each case.</p> <p>Bekem & Campbell instituted suits on these notes in the county court of Washington, and recovered judgments against Bradley and Gibbons, and executions were issued upon them, and forthcoming bonds taken and forfeited; and executions were issued on the forfeited forthcoming bonds, returnable to May 1861. On theáe executions stay bonds were executed in July 1861 by Gibbons, with William King Heiskell, the sheriff, as his surety. About the same time, Gibbons, who had been the previous sheriff, put into the hands of Heiskell tax and other tickets, amounting to $3,197.94, which Heiskell was to collect and account for in paying the two executions of Johnson against Gibbons, &c. And on the 5th of April 1862 Heiskell paid to Bekem & Campbell $2,600 on the said two executions. This payment was in confederate money.</p> <p>Johnson’s statement, which was received as evidence, is—That after the executions had gone to the officer’s hands, he had been pressing both Gibbons and Heiskell for the money. In 1861, about June of that year, when pressing Heiskell for the money, Heiskell said he had property levied on, I think he said cattle, and unless I would attend the sale and make the property bring something like it would have brought in the fall before, I could not get my money; stating that some law of that kind had been passed. I told him I would take nothing but coin. Heiskell then said, then you cannot get your money. I replied, I will wait until I can get such money. * . * * * In the spring of the year 1862 I received a letter from Mr. Bekem, in which he stated he had $2,000 in confederate money for me, and that I could get the rest of my money in that currency whenever I wanted it. To which letter I made no reply, as Mr. Bekem had no authority to collect this debt for me.</p> <p>It was agreed that Heiskell was dead. Gibbons testified, that he had no notice that Mr. Bekem was not authorized to collect these debts. And it was further agreed, that the original executions went into the hands of Gibbons, who was then deputy sheriff of Washington county, aDd who was fined $50 at March court 1861 for the failure to return the said executions upon the motion of Johnson; in which motion he was represented by Bekem & Campbell as his attorneys.</p> <p>The cases were by consent heard together; and the court rendered a judgment by which the executions, and the writs of venditioni exponas were quashed. And it was adjudged that the $2,600 paid to Bekem & Campbell should be applied to satisfy the judgment on the note for $2,000, and the balance should be entered as a credit on the other jugment. And Johnson thereupon applied to a judge of this court for a writ of error and supersedeas; which was awarded.</p>

This was an action of debt in the circuit court of Montgomery county, brought by Thomas Wilson against Charles A. Colhoun and John T. Cowan, partners, upon a note for $5,379.75, executed by Colhoun & Cowan to Wilson. The defendants pleaded the general pleas of payment and set-off, and a special plea of failure of the consideration of the note in part, on which issues were joined.

John M’Rae of Petersburg, filed his Bill on the 4th February, 1822, in the Richmond Chancery, against William Cole and others, which states, that he obtained a Judgment in the Superior Court of Law of Petersburg, in October, 1820, for 09,120, with interest from 30th June, 1820, till paid and costs, subject to a credit of 0'4’,153, from the 23d October, 1820: that a Ca. 8a. was issued, Cole was arrested, and took the insolvent- oath on the 30th December, of the same year,…

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

<p>A Deed of Emancipation, by which the master manumits his slaves at his death, directs, -that they shall serve him as long as he lives, and at his death go free from all persons; and, for himself, his heirs executors,'and administrators, relinquishes /all his right and title to the said negroes, is to be construed as passing a present right to freedom, reserving a right in the grantof to their personal services dtf-< ring his life, as a condition of the emancipation. Therefore, a child born of one of the emancipated females in the interval between the execution of the Deed and the death of the grantor, is free from its birth.</p> <p>If the construction of a Deed of Emancipation be doubtful, resort may be had teethe rule,-that the Deed is to be taken most strongly against the grantor; and to the spirit of the laws of all civilized nations which favors liberty.</p>

<p>Where a Plaintiff goes into Equity for a settlement of accounts, on the ground that he cannot substantiate the items in his account, except by the Answer, and testimony of the Defendant himself, and in the progress of the suit it appears by his own showing, that the account is susceptible of proof by witnesses, in a Court of Law, his Bill ought to be dismissed.</p> <p>A Bill in Equity does not lie to recover damages for a breach of contract merely sounding in damages.</p>

This case has been on two former occasions before the Court of Appeals, and in the- brief statement-which will be made of it, a reference will be made to those decisions. Thomazin Ellzey, by Deed of Bargain an-! Sale, bearing data 9th November, 1799, conveyed to William Lane, a tract of land in Fairfax County, containing four hundred and seventy-five and three-fourth acres, for the consideration of 475/. 15.

This was an application for a Writ of Error to a’Judgment of the Superior Court of Law for Patrick County, by which the petitioner was sentenced to be confined in the Jail of that County for the term of two months, there to be kept on low and coarse diet, and at the expiration of his term, to receive fifteen stripes; the prisoner having been convicted of petit larceny.

<p>In debt against the endorsers of a protested note discounted at a bank at C, the protest of the notary states that “ he placed in the post office of this place four written notices, one directed to the payer, and one directed to H. & L. at B., Va., endorsers, informing them, &c. On demurrer to the evidence. Held : The jury worrld have been warranted to infer from this evidence that the residence of the defendants was in B; and upon a demurrer to the evidence, the court must make the same inference.</p>

<p>tn a prosecution under the last clause of tile 13th section of the Act concerning slaves, £?c. against a Defendant for permitting a number of slaves, more than five, other than his own, to be ahd remain on his lot, or tenement, it is not necessary fovthe Commonwealth to prove that they remained thereon more than four hours at any one time. .</p> <p>The object of the first- clause of the section is to protect private rights, by preventing persons ffióm knowingly permitting the slaves Of others to tarry on their premises withoufithe owner's leave, for an unreasonable timé. The object of the last clause, is to guard the public sgainst assemblages, whjch might be dangerous to the peace, 'or injurious to morals, in a much-shorter time than four hours.</p> <p>Qw. Does the last clause of the said section apply to the assemblage of any other negroes, than slaves?</p> <p>The proof must correspond with the allegation, and therefore, if the Information charges an unlawful assemblage of negro slaves, the Commonwealth must prove that they were slaves.</p>

<p>This was an application for a Writ of Error to a Judgment of the Superior Court of Law for Montgomery County, which was overruled.</p>

The first of these cases was adjourned to this Court by the Superior Court of Law for Surry County. The Plaintiffs appeared by Attorney, and dismissed their suit, which was an action on the case; whereupon the Defendant, by his Counsel, moved the Court to enter á non-suit iu the case, and award him five dollars for the same, besides his costs-.

This was an action of debt in the circuit court of G^les county, brought in March 1872 by William H. Howe against James W. Harman and William N. Harman, but which was abated as to James W. Harman upon the return of the sheriff that he was not an inhabitant of the county. The action was founded upon a bond executed by the defendants, upon James W. Harman’s obtaining an injunction to a judgment which Howe had recovered against him. The declaration contained three counts.

<p>On the petition of David Jones, to the General Court, setting forth that the petitioner, a resident of Fluvanna County, having arrived in the City of Richmond, on the 18th November, was arrested on the day following by the Serjeant of the said City, and that he is now illegally detained in the custody of the said Serjeant. A Writ of Habeas Corpus was awarded, directed to the said Serjeant, returnable on the next day. In obedience to the Writ, the Serjeant produced the body of the petitioner, and made return, that he had taken the said Jones into his custody, by virtue of two Escape Warrants, issued by J. Currin, who is said and believed to be a Justice of the Peace for the County of Fluvanna, and he produced the Escape Warrants. The Warrants were dated in 1825. By one of them it appeared, that David Jones was charged in execution at the suit of Timberlakc fy Magruder, and other creditors named; and by the other, that he was charged in execution at the suit of Thomas Boyd. They were in the usual form, reciting the cause of the prisoner’s commitment, and his and were directed to all Sheriffs, Serjeant's, &e,, commanding them to seize and re-talce the and to commit him to The who issued the Warrants, signed his name J. Currin, without stating himself to be a Justice of the Peace for the County of Fluvanna.</p> <p>The creditors appeared by Counsel, as well as the debtor. The laiter gave in evidence that he was a farmer in Fluvanna, where he resided in 1825, and ever since, within one mile of the residence of the creditors: that he has never concealed himself, and that he has gone at large and been publicly seen at the Court-house, and other public places in Fluvanna, for the last three years, and that he was in the store of the creditors within a few months before his arrest, and that these Warrants have never been executed on him in his own County.</p> <p>The creditors, proved that the Jail of Fluvanna was consumed by fire in 1826, and has not since been re-built: and that J. Currin was in 1825, and is now a Justice of the Peace in the County of Fluvanna.</p>

This was an application for a Writ of Error to a Judgment of the Superior Court of Law for Harrison County v The petitioner ivas indicted for selling, by retail, without having a license therefor, whiskey and other ardent spirits, at his dwel]ing-house, to be drank at the place where sold.

<p>This was an application for a Writ of Error to a Judgment of the Superior Court of Law for Hampshire County, whereby the petitioner was sentenced to the Penitentiary for the term of two on a conviction of</p> <p>From the transcript of the Record filed with the petition of the prisoner, the following statement is extracted. A Court was called, and held in the County of Hampshire, in March, 1S28, for the examination of the prisoner, upon the charge of having “feloniously forged and counterfeited, and passed a single bill or note, purporting ■to be a note made by William Duling, with his seal thereto affixed, for the sum of fifteen dollars, bearing date the 28th December, 1827, and made payable to Henry Huffman, twelve months after date;” it is charged to have been passed “to a certain William Sherrard.” The single bill, and assignment by Huffman to Sherrard, thereon endorsed, are in the following words and figures:</p> <p>“Twelve months after date I promise to pay Henry Huffman or his assigns, the just and full sum of 15 dollars for value received of him. As witness my hand and seal this 28th day of December, 1827.</p> <p>“William Duling, (Seal.)”</p> <p>.“March 13th, 1828. 1 assign the within amount to William Sherrard for value aeceived.</p> <p>‘‘Henry Hueeman.”</p> <p>It was proved before the Court of Exaipindtion, as appears from a memorándum of the evidence as recorded, that the said single bill had not been executed by William Duling; that the prisoner carried it to the store of William Sherrard, and there sold it for goods. The transaction on the part of Sherrard, who was not present, was negotiated by Charles Blue, his Clerk in the store. The Court of Examination was of opinion that the prisoner -was guilty, and remanded him to Jail to undergo a trial, for the offence with which he stood charged, before the next Superior Court of Law.</p> <p>At the next Superior Court of Law, the Grand Jury found an Indictment against him containing three counts. The first count charges, (hat he “feloniously did faiscly make, forge and counterfeit, and did feloniously cause and procure to be falsely made, forged and counterfeited, and feloniously did act and assist in the false making, forging and counterfeiting a certain false writing,” &c. describing and setting forth in hsec verba the single bill before-mentioned, and averring it to have been done “to the prejudice of the right, and with intent to injure and defraud the said William Duling.’’'’ The second count charges, that he “feloniously did utter and publish and employ as true for his own benefit, a certain other false, forged and counterfeited writing,” describing again the same single bill, and setting it forth according to its tenor and effect, and charging the intent to have been “to injure and defraud the said William Duling,” and averring that the prisoner knew it to be “false, forged, and counterfeited.” The third count is tho same as the second, except that the intent is alleged therein to have been “to injure and defraud William Sherrard.” It is not stated upon the face of this count, as it is iq the two preceding, that it was found upon the oath of the Grand Jury,</p> <p>The prisoner, upon, his arraingmcqt, and before pleading, moved, the Court to quash each count in the Indictment, because “there is no substantial offence charged, and because the offence charged in the Indictment is variant from the charge for which the prisoner was sent on to be tried by the Examining Court.” The motion to quash was over-ruled. The prisoner then pleaded not guilty, and was put on his trial by a Jury.</p> <p>Upon the trial, the Attorney for the Commonwealth offered in evidence a single bill, corresponding with the one set forth in the Indictment. Tiie prisoner objected to its going in evidence to the Jury. The Court over-ruled his objection, and the prisoner filed a Bill of Exceptions to the opinion of the Court, which states, .that on the trial of this Indictment, Charles Blue, a witness in behalf of the Commonwealth, produced a single bill, set forth in the Indictment, and testified, “'that on the 13th day of March, 1828, he ivas in the employment of William Sherrard, of Hampshire County, in the capacity of clerk in the store of the said Sherrard, who was a merchant; that the prisoner on that day took up sundry goods in the store of said Sherrard, in payment of which, he 'assigned said paper-writing to William Sherrard; that about half an hour after making the assignment, the witness discovered that the paper-writing was dated m the year 1828; upon which, he stated that circumstance to the prisoner, who remarked to the witness that it had been so dated by William Diding by mistake; and therefore, he, the nrisoner, (the said paper-writing being handed to him for that purpose by the witness,) with the assent of the witness, with the pen-knife of the witness, erased the figure 8, and made in lieu thereof, with pen and ink, the figure 7, so as to change the .date from 1828 to 1827;” and then returned the single bill to the witness. Upon this evidence the prisoner contended, that the instrument had not been properly described in the Indictment, and being variant from the single bill therein set forth, should be therefore excluded from the Jury, which the Court refused.</p>

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

<p>Tile Act of Feb. 1823, which directs that the person convicted may be imprisonfed for a time not less than one, nor more than six months, and re-stripes, at discretion Court, to be inflicted at one time, or at different times, provided the same do not exceed thirty-nine at any.one time, is not . unconstitutional.</p> <p>The discretion therein delegated is a sound discretion, and if the Judge abuses the power conferred, making it to subserve motives of oppression, or his own vindic. tive passions,-he is liable to be impeached.</p> <p>The discretion thereby conferred on the Superior Courts, is of the same character • with the discretion exercised by the Common Law Courts in imposing fines and imprisonment</p> <p>The distinctive feature in the character of Hie games called A. 15. C and É. O. and Faro Bank is, that the chances of the game are unequal, all other things being-equal, and those unequal chances are in favor of the exhibitor of the games, or tables. If other games resemble those standard games in- that distinctive feature, they come within the terms of the 17th section of the Gaming Act, being “ gaming tables of the same, or like kind,” and are liable to the penalties denounced, against those standard games, whatever may be the denomination of those other games, and whether played with cards, dice, or in any other manner. Under this construction, the exlábltor ot a gaming table called -//a/i-hazard, alias Blind-hazard, alias Snickup, etc. held to be liable to- the same punishment with the exhibitor of Faro Bank.</p>

Prior to the year 1868, the Virginia Central railroad company owned the railroad extending from Richmond to Covington in Alleghany county, except about sixteen miles extending, from the eastern te western base of the Blue Ridge mountains, which had been constructed and was owned by the state of Virginia. Of this company Colonel Edmund Fontaine was the president.

The prisoner was indicted in the Superior Court of Law for the County of Powhatan, for the murder of Elbert Mosby. The first count charged the murder to have been committed by means of a dirk, bjr which a mortal stab in the left side was given'; the second count charged that it was done by a horeseman’s pistol/ by which divers mortal wounds and blows were inflicted on thd head of the deceased; the third count charged that the offence was committed by means of a club.

Walter Newman, of Shenandoah county, died in November 1868. His will, which was made in June 1847, was admitted to probate in the county court of' Shenandoah in March 1869, and his son, Benjamin P. Newman, qualified as his executor.

<p>To constitute murder in the first degree, it is not necessary that the premeditated design to kill, should have existed for any particular length of time. If, therefore, the accused, as he approached the deceased, and first came within view of him at a short distance, then formed the design to kill, and walked up with a quick pace, and killed lum without any provocation then, or recently received, it is murder in the first degree.</p> <p>The Legislature, .in their description of offences which constitute murder in the first degree, has at first enumerated some of th,e most striking instances of deliberate and cfuel homicide; but, finding it impossible to enumerate all of them, then proceeded, by general words, to embrace all kinds of wilful, deliberate and premeditated killing. It is improper to interpolate the word “ such,1’ in that general description.</p> <p>The offence of homicide, by a workman throwing timber from a house into the street of a populous city, without warning, or of a person shooting at a fowl anU mo furandi, aud killing a man, are instances of murder in the second degree.</p>

<p>In an Indictment for a public nuisance in damming up and stagnating the waters of a creek, the air is and infected, and sends forth noisome and unwholesome smells, it is not sufficient to lay it to the common nuisance of “all the citizens of the ‘Commonwealth, not only residing and inhabiting there, but also g oing, returning, passing and re-passing by the same,” nor to the common nuisance “of all the citizens of the Commonwealth;''- but to maintain a public prosecution for a nuisance, it is necessary to allege and prove, that the obstructions placed in the creek, produced a stagnation of the waters, and corrupted the air, ■>'"> " JiuhCir: klglnnny, or in some other place in which the public have a special interest.</p>

By deed bearing date the 23rd day of August 1858, Maurice A. Brown conveyed to Thomas H. Tutwiler tracts of land lying in the county of Nelson, and slaves, in trust, to secure the payment of $6,600,… Held: that the land was subject to pay the debts to secure which it had been conveyed in trust; but not for the trustee’s commissions on a sale which he did not make.

<p>This is an adjourned case from the Superior Court of Montgomery. The case is fully stated in the follovying opinion.</p>

<p>This ease was argued at Wytheville, but was decided ■at Staunton. It was a case in which S. S. Crockett recovered a judgment in the circuit court of Wythe county against Aaron D. Gage, garnishee of Edward Shelley, on the 22d of September 1875, for an amount, principal and interest at the date of the judgment, a little less than $500; but when the supersedeas was applied for and obtained by Gage, it amounted to more than that sum. The appellee, Crockett, moved the court to dismiss the appeal, on the ground that the matter in controversy was not sufficient to give this court jurisdiction.</p>

Quinn & Ritter filed their bill in the circuit court of Frederick county, claiming to be creditors by judgment of Harrison Bowers, and seeking to subject his estate real and personal to satisfy their debt. They stated that there were liens by deed upon the land and also judgments which were liens upon it. A commissioner was directed to take an account of the liens upon the land of Bowers; and he made a report in April 1873.

This was an action of debt in the circuit court of Clarke county, brought in May 1873, by The Insuranee Company of the Valley of Virginia, suing for the use of William Bird, receiver, against John D. upon a note under seal for $1,650, bearing c|ate June 1st, 1861, payable on demand, with interest from the 1st of July 1860.

<p>This was a creditor’s bill in the circuit court of Frederick county, brought by Joshua Persinger and others, creditors of James A. Nulton, to have the property mentioned in a number of deeds of trust disposed of under the direction of the court. The facts in relation to the only question involved in this appeal, are stated by Judge Christian in his opinion.</p>

<p>This is a sequel of the eases of Skipwith $ als v. •Cabell’s ex’or f als. and Lee f als v. Cabell’s ex’or f als, reported in 19 Grattan, 758. When the cases went back to the circuit court, that court directed a commissioner to take an account of the transactions of the and in March 1871 the commissioner returne<^ report. To this report the next of kin of Mrs. Cabell filed a number of exceptions, but it is only necessary to notice the fifth and twelfth, as these alone refer to the questions involved in the decision of this court. The twelfth exception, among other objections to the report, objects that certain debts mentioned, which were collected during the war in confederate-money, were not charged to the executor. It appears that these were debts due-before the war, and were secured by liens on real estate; and during the war they were paid to the executor in confederate money; and by an order in the cause the proceeds were invested in confederate bonds. The amount of these debts constitute the sum of $47,600 mentioned in the decree-of the 10th of October 1867, which -the circuit court then held should be embraced in the residuum of the-estate, and all the parties interested in that residuum should bear the loss ratably.</p> <p>The question under the fifth exception was as to the-liability of the executor for the $84,600 of state stock, lent by Mrs. Cabell to the Howardsville Bank. The facts in relation to this stock are stated in the former-report, and referred to by Judge Staples in his opinion.</p> <p>The cause came on to be heard on the 25th of March 1872, when the court held that the reservation in the-decree of the court of appeals of the 24th of June 1870 to the next of kin of Mrs. Cabell, to proceed against D. J. Hartsook the executor, for any claim or demand that they might be advised to assert against him, on account of his transactions as executor, was not intended to permit them to re-open and to enquire into the accounts and transactions of said executor as-to any questions now raised by the exceptions, so far as the same were before raised, passed upon and decided by that decree, and the decrees of the circuit district courts,, to the extent that they were approved and affirmed by said decree of the court of appeals. But that under said reservation only the accounts and transactions of the executor which were not passed upon and decided by the court of appeals, could be reopened and investigated. And the court being of opinion that the said bonds mentioned in the twelfth exception, and the investment of the said $47,600 in confederate bonds, were theretofore brought into consideration, and their propriety approved and sustained by the said decrees, and the loss of them was thereby decided to be the loss of the estate, the said twelfth exception was overruled so far as it seeks to charge the executor with the amount of said collections and investment.</p> <p>The court was further of opinion that the question, whether the $84,600 in the Howardsville Bank should be regarded as state stock, and pass to the legatees of the state stock of the testatrix, or as a debt due from the bank to her estate, had been settled and determined by the decrees before made in the cause; but that the question as to the conduct and transactions of the said executor in respect to the collection of the said debt of $34,600 on the said bank, or the diligence used by him to secure or collect the same, had never before been raised, passed upon or settled by any decree in this cause; and therefore under the said reservation the parties had a right to enquire into the conduct and diligence of the executor in relation to said debt, and to hold him accountable for negligence or want of proper care and diligence in relation to the collection of the same; therefore the said fifth exception in this respect was so far sustained as to allow this enquiry to be made, and proof to be taken by any in relation thereto. And the report of the commissioner was re-committed with instructions &e.</p> <p>The commissioner made his report, exonerating Hartsook, the executor, from liability for the debt of the bank; and to this report the next of kin of Mrs. Cabell excepted. The facts are sufficiently stated by Judge Staples in his opinion.</p> <p>The cause came on again to be heard on the 7th of September 1872, when the court overruled the exception as to the debt of the bank, and confirmed the report. And thereupon John B. Young and wife, and the other next of kin of Mrs. Cabell, applied to a judge of this court for an appeal; which was allowed.</p>

<p>This was a creditor’s suit in the circuit court of Winchester, brought by -Charles Colfelt against the Winchester and Strasburg railroad company, to subject the real estate of the company to satisfy judgments which he had recovered against the company. The bill was afterwards amended, and the Baltimore and Ohio railroad company, which was stated to be in possession of the real estate of the first-named company, under a lease was made a defendant. Both of the said companies demurred to the bill; but the cause coming onto he heard on the 24th of March 1875, the court over-the demurrers, and recommitted the report, which had been previously made by a commissioner, with directions, after giving notice for four weeks in some newspaper, &c., to take an account of all debts which were liens upon the property of the Winchester and Strasburg railroad company. And leave was given to the railroad companies to file their answers within sixty days from the rising of the court: which they failed to do.</p> <p>The commissioner returned his report, stating that but two debts, which were liens on the property, were produced before him. One of these was that of the-plaintiff, made up of three judgments, one in the county court of Frederick, and the other two in the circuit court of that county, amounting together, at the date of the report, to $169.91, and a debt due to John Z. Jenkins’ executrix upon a judgment recovered by him in his lifetime, which, at the date of the report, amounted, principal and interest, to $1,117.60. The real estate of the Winchester and Strasburg railroad company was reported at a valuation of $630,000, and its annual rental at $37,000.</p> <p>The defendants excepted to the report on the ground that the debts reported were not sustained by sufficient evidence. The evidence as to all the judgments was the certificate of the clerk of the court in which it was rendered, stating the court and the term at which it was rendered, the names of the parties, the amount of the judgment, and the amount thereof which bore interest and the date of its commencement; and an execution of fieri facias which had been issued on on.e of Oolfelt’s judgments, had been returned no effects. All the judgments had been docketed.</p> <p>The cause came on to he heard on the 17th of 33o-vember 1875, when the court overruled the exceptions to the report, and fixed the amount of the debts reported by the commissioner, and decreed that unless the Winchester and Strasburg railroad company should, within sixty days from the rising of the court, pay to Jenkins’ ex’x and Colfelt their debts—stating the amount &c., as reported by the commissioner—the sheriff of the county of Frederick should, after notice &e., offer the Winchester and Strasburg railroad and its franchises, at public rental to the highest bidder for one year from the 1st of April 1876, upon the terms &c. From this decree the defendants obtained an appeal to this court.</p>

This was an action of debt in the circuit court of Warren county, brought in May 1873 by Angus M. Wood against James W. Mason and others, surviving •obligors with O. E-. Funs ten, deceased, upon a bond for $550, dated the 18th of March 1859, payable with interest one year from its date. The bond was given for the price of a jack, and Wood, at the time of the purchase, gave the purchasers a written warranty of soundness, and that he was a sure foal-getter.

<p>Louis Wolfe, of the town of Winchester, died on the 10th of June 1850. By his will, which was admitted to probate on the 1st of July 1850, he gave his-estate except his library, to his sister Mary Wolfe for her life. He gave a tract of land to Sidney S. Richards, wife of H. W. Richards, for her life, and then to her children; to his niece Helia E. Pugh, wife of John R. Pugh, another tract of land for her-life, and then to three of her children, naming them, and another tract to the said Delia E. Pugh for her life, and then to four of her children, naming them;, and he gave another tract to Sidney S. Richards in fee. Mary Wolfe who was appointed executrix declined to act, and H. W. Richards qualified as administrator with' the will annexed.</p> <p>In January 1854 Richards settled his administration account before the court of probate, showing a balance due him of $99.79; and the commissioner reported that three of the debts with which the administrator was credited as having paid, were debts “binding upon the real estate, as well as upon the personalty.” These were state taxes paid December 1850, and January 1851, $34.11, an execution of Wm. B. Baker for $235.58, and one of Robt. B. Wolfe, cashier, for $195.90, both paid in June 1852. Neither of these entries show the character of the claim upon which the judgments were founded.</p> <p>In November 1853 Wm. G. Russell recovered a judgment against Richards as administrator de bonis non &e. of "Wolfe, for $776.70 damages, with interest from the 11th of September 1850; and $86.80 costs; and execution having been issued upon this to be levied de bonis testatoris, the-return of the sheriff upon it was, “ No property found. The administrator states he has no assets.”</p> <p>In November 1860 Russell instituted his suit in equity in the county court of Frederick, which was afterwards removed to the circuit court of that county, against the administrator &c. and devisees of Louis Wolfe, deceased. In his bill he set out his judgment, the will of Louis Wolfe, the commissioner’s report stating that debts amounting to $469.59, which bound the land, had been paid by the administrator; and he stated that John R. Pugh was indebted to Wolfe for money paid by Wolfe for him in his life time, which had not been collected by the administrator. The prayer of the bill is, that the assets may be marshaled; that any balance of the personal assets may be applied to the payment of his debt, and that the real estate devised may be subjected to pay the remainder; and for general relief.</p> <p>John R. Pugh and Delia E., his wife, and Charles Ginn and Mary C., his wife, who was one of the devisees, answered the bill. They denied that Louis Wolfe was indebted to Russell. They insisted that at any rate the judgment recovered by him was for services rendered, and was not evidence against them, and did not bind the real estate; and they relied on the statute of limitations as a bar to his claim against them.</p> <p>John R. Pugh admitted that he was indebted to Louis Wolfe, for money paid for him; but as a tract of land-had been mortgaged to secure the said Wolfe, and had been sold since his death under a decree of the court, he was not able to say what was the balance of the debt he owed.</p> <p>In March 1869 Bird & Carson were, upon their petition, made parties in the cause, as assignees of HJ W. Richards, the administrator d. b. n. e. t. a., of the amount reported by the commissioner to be due to him.</p> <p>The cause was referred to a commissioner to en-quire, among other things, what was, the balance of the debt due from John R. Pugh to Louis Wolfe; whether the debt set up in the complainant’s bill for $776.70, with interest, &c., was a just debt and charge upon the estate of Louis Wolfe, deceased; and the present condition, amount, owners and annual value of the real estate of which said Wolfe was possessed at the time of his death.</p> <p>The commissioner made his report. He refers to the report of the commissioner made to the court of probate; says it seems to be correct, and that it shows that the administrator paid $465.59 upon debts binding the realty. He reports the balance of the debt due from John R. Pugh to Louis Wolfe at $515.48, with interest from January the 12th 1844 to October 81st 1859, $488.76—equal to $1,004.24. That a number of depositions were taken by him in relation to the plaintiff’s debt, which sustain it;' and after crediting upon it a balance due from the plaintiff on account of the purchase money of the land given to secure Wolfe, of $172.96, he makes the plaintiff’s debt, principal and interest, on the 31st of October 1859, $1,116.43. He also reported as to the ownership and value of the lands, of which Wolfe died possessed.</p> <p>The defendants excepted to the report; on the following grounds, among others:</p> <p>1. In not allowing the statute of limitations; it being a new action against the devisees and subject to •all defences.</p> <p>2. In adopting the judgment of the court in the suit against the executor as the amount due against the devisees, without proof of the account.</p> <p>3. In reporting a joint liability, and not a joro rata responsibility.</p> <p>The commissioner returned with his report the depositions taken in relation to the plaintiffs’ debt. These depositions showed that Russell had for years attended to the business of Louis Wolfe, who was old and feeble, and in the opinion of this court the evidence. sustained the claim.</p> <p>The cause came on to be heard in January 1872, when the court being of opinion that the unadministered personal assets of Wolfe’s estate were sufficient to pay the plaintiffs’ debt, without passing on the exceptions to the report, decreed that Charles B. Hancock, the present administrator of Louis Wolfe, deceased, do proceed as administrator to collect the amount due from John R. Pugh to the estate of Louis Wolfe, deceased, and any other debts due the estate, and as a special receiver of the said circuit court to hold the sum of money so collected subject to the fu-. ture order of the court. And he was authorized to take all steps necessary for this purpose at the costs of said Wolfe’s estate, and make report to the court.</p> <p>The cause came on again to be heard on the 19th of March 1874, when Hancock having reported that an execution against-the goods and chattels of John R. Pugh was returned “no property found,” the court held that Russell was entitled to recover from the estate of Louis Wolfe, deceased, the sum of $776.70, with interest from September 11th, 1850, and $86.80 costs of the common law suit, subject to a credit ot $172.96, as of October 31st, 1859, being in favor of of $1,116.43, with interest on $776.70 from Octoher 31st, 1859. And it appearing from the report of the commissioner that the administrator of Louis Wolfe, out of the personalty of said estate, paid debts binding the realty to the extent of $465.59, it is held by the court that to that extent, and with interest upon the same, from the time of payment, the real estate of' Louis Wolfe, deceased, must contribute to the payment of the debt of Bussell. And the cause was referred to a commissioner to ascertain and report among other things—1. Whether John B. Pugh, or his assignee or vendee, is possessed of any realty which is liable for the payment of the debt against him reported in this cause. 2. The exact amount and interest of the debts binding the realty, to which the personalty has been applied. 3. What the realty, and in-what proportion the same is liable to contribution as adjudged in this decree.</p> <p>The commissioner reported—1. That Delia E. Pugh and three of her children were dead; that the children-died unmarried, childless and intestate, and John B. Pugh inherited three-fourths of the tract of land devised by Louis Wolfe to said Delia E. and her children. 2. That from the report of the commissioner returned to the court of probate, it appeared that the following-debts binding the realty were paid out of the personalty, viz: -1</p> <p>Taxes on lands and lots $34.11; amount of execution of William H. Baker $235.58; amount of execution of B. B. Wolfe, cashier, $195.90 = $465.59. This-amount is of January 1st, 1854. Interest from January 1st, 1854, to December 1st, 1874, $558.70. Amount and interest to December 1st, 1874, $1,024.29. 3d~ The land devised to Delia S. Richards and her children, and that devised to Delia E. Pugh and her children, each to bear one-half of the burden; and of last John R. Pugh holds three-fourths, and Susan C. Pugh the other fourth.</p> <p>The cause came on again to he heard, when the court confirmed the report of the commissioner, and decreed that unless within thirty days from the rising of the court, Susan C. Pugh and John R. Pugh should pay to John J. Williams and R. T. Barton, who were appointed receivers to collect the same, the sum of $232.79, with interest from January 1st, 1854, commissioners named should proceed to sell the farm described in the commissioner’s report at public auction, on terms stated in the decree; and unless John R. Pugh should in thirty days, &c., pay to the same receivers the sum of $1,004.24, with interest on $515.48 from October 31, 1859, the said commissioners should sell his interest in said farm. And a like decree was made against Charles L. Ginn and wife and Lewis Richards as to the same sum of $232.79 and like interest. And thereupon John R. Pugh and Susan C. Pugk applied to a judge of this court for an appeal; which was allowed.</p>

<p>1. Three suits in equity are brought by the same plaintiffs against the same defendants to enforce payment of debts by attachment and sale of the same land. By order of the court these suits are directed to be consolidated and heard together, and then plaintiffs file an amended bill bringing in a third party. There being a decree dismissing the attachments, the plaintiffs may appeal to the court of appeals, though neither of the debts amount to $500, the sum of all of them being more than that amount.</p> <p>3. Qucere : If a creditor, whose debt is not yet due, may bring a suit in equity to attach the property of his absent debtor, or to set aside a deed as fraudulent.</p>

<p>I- Whether the court will confirm a sale made by commissioners under its decree, must, in a great measure, depend upon the circumstances of each case. It is difficult to lay down any rule applicable to all cases; nor is it possible to specify all the grounds which will justify the court in withholding its approval.</p> <p>2. In such a case, if there is reason to believe that fraud or mistake has been committed to the detriment of the owner or purchaser, or that the officer conducting the sale has been guilty of anywrong or breach of duty to the injury of the parties interested, the court will withhold a confirmation of the sale.</p> <p>3. In such a case, either party may object to the report of the commissioner, and the purchaser himself, who becomes a party to the sale, may appear before the court and have any mistake corrected.</p> <p>4. The court, in acting upon a report of sale, does not exercise an arbitrary but a sound legal discretion in the interests of fairness and prudence, and with a just regard to the rights of all concerned.</p> <p>5. An auctioneer or crier making a sale, cannot properly act for himself or any other person in bidding for the property.</p> <p>6. A case in which the court refused to enforce a sale against the purchaser, on account of the misconduct of the life tenant and the auctioneer, though the conduct of the commissioner was unexceptionable.</p> <p>7. The sale being set aside as to the life-tenant, must be set aside in toto, though some of the remaindermen are infants.</p>

<p>1. R, a commissioner selling land in i860 under a decree, is guilty of a breach of trust in receiving confederate currency from the purchaser in payment of his bonds, in 1863.</p> <p>2. Such a commissioner who is directed to file thefbonds with his report, has no authority to collect them.</p> <p>3. A commissioner who in April i860 is appointed to sell lands is guilty of a breach of trust in selling them in 1863, for confederate currency.</p> <p>4. S, a brother of the commissioner, who is one of the parties entitled to the land and its proceeds, induces R to collect the purchase money of the land sold, and to sell the balance, both to be received in confederate currency, and to lend it to him. S is a party to the breach of trust by R, the commissioner, and is responsible for it.</p> <p>5. Upon a writing under seal given by S for the return of the money, R in 1866, brings an action-against the executor of S, and recovers a judgment, which upon appeal is reversed, and it is held that the debt, should be scaled, and the cause is sent back for a new trial. On a bill by the other parties interested in the lands sold. Held :</p> <p>1. If the judgment of the court of appeals was final, these plaintiffs not having been parties to the cause, would not be concluded by it.</p> <p>2. The cause having been sent back for a new trial, the judgment was not final.</p> <p>3. Though upon the face of the paper the court might correctly hold that the contract was a confederate contract, and should be scaled, the facts connected with the transaction may, and do show that it should not be so treated: and these facts may be received in evidence and the bond construed by the light of them.</p>

On the 11th of November 1867, H. S. Kepler conveyed to Wm. H. Fitzhugh, of Fredericksburg, a tract •of land in the county of Chesterfield, “ in trust to secure to A. P. Rowe, the payment by the said H. S. Kepler, of the purchase money of the said tract of land, which purchase money, amounting to $8,680, is evidenced by five bonds of the said Kepler to the said Rowe, payable as follows: The first for,” &c. There were five of these bonds, and they were assigned by Rowe to…

<p>Testator names three of his neices whom he says he has taken care of from-their infancy, and he wishes them still provided for, and for that purpose he wishes the whole of his estate, both real and personal, kept together, and so much of the proceeds thereof as might be essential to-their genteel and comfortable support applied in that way, so long as-they should continue unmarried; and then he gives his estate to certain persons and these nieces. But this postponement of distribution was only to secure his nieces during a state of dependence, such comfortable support as they needed, but not to deprive those interested from that share in the estate, when such provision shall be made for the nieces as shall ensure such support.</p> <p>By a codicil made the same day, testator says: In speaking of a comfortable and genteel support for my said nieces during the time they remain single, I think the sum of $300 each, provided my estate will afford it, ought to secure the end designed. Held: The testator has designated what he deems a proper provision, and it will be fixed at that.</p>

This was a suit in equity in the circuit court of Fauquier county brought in June 1871, by Henry C. Bowen and G-eorgie 0. his wife, who before her marriage was Georgie 0. Bothrock, against her former guardian William S. Barton, for a settlement of his account as guardian. This guardianship commenced in 1859, and probably continued until some time after the war. The account was referred to a commissioner, who made his report.

William Wharton, of the county of Culpeper, died in July 1858, leaving a widow and one child, a daughter about fourteen years of age. He owned a tract of land in the county of about five hundred and sixty-eight acres, slaves and other personal property. His will was made but a few days before his death.

<p>A case of the transfer of a number of negotiable notes “ without recourse,” in which it was held, looking to all the circumstances, that the words were to be construed in their literal sense; and that the transferer was not liable for the failure to recover from the endorser. If the transferee intended that they should be used in this instance in their restricted and limited sense, he should have been careful to express his meaning, or have it expressed in plain and unmistakable terms.</p>

This was an appeal from the decree of the corporation court of Alexandria, in a suit in which Hesselius Smith and others, children and heirs at law of Sidney -Smith, were plaintiffs, and William 1ST. Berkeley was •defendant. The object of the suit was to compel the ' ■defendant to remove an addition to his store-house which adjoined p, store-house of the plaintiffs, and to repair other injuries he had done to their property.

<p>This is a sequel to the ease of Puryear v. Cabell <$• als, 24 Gratt. 260, and all the facts upon which the only question in this appeal depends, are stated in that report of the case. That question .relates to the time when interest shall be charged upon the advancements to the legatees by Colonel Wilson and his widow, in order to effect the equality directed by the testator among his children.</p> <p>When the cause went back, the court referred it to a commissioner to take an account of the advancements, and "of the proceeds of the sale of the estate-made by commissioners in 1874. From the report of commissioner Mosely it appeared that the advancements made to all -the children by Colonel Wilson and Mrs. Wilson, were $97,419.82, and that the estate yet to be divided amounted to $83,923.87 as cash on the 16th of October 1874; the two sums making $131,343.19; and giving to each legatee $16,417.89. From this sum the commissioner deducted the advancements made to each legatee, charging no interest on the advancement; and showing the advancement to be paid to each legatee out of the fund to be distributed. This statement was excepted to by the Cab-ells; and a special statement was made by the commissioner in accordance with their views. By this statement, charging Mrs. Puryear with the amount of her advancements and interest thereon from the death of Mrs. Wilson up to October 1874, she had received more than her share by $1,618.59; what she had received was therefore left out of the further statement of the account. The amount of advancements received by the other seven legatees was $81,059.82; six of them receiving sums ranging from $12,090 to $13,883; whilst the seventh, Mrs. Cabell, received but $3,458. In this statement each of these legatees was credited with one-seventh of $81,059.88, the amount of the advancements, and also one seventh of the sum in hand, each of them $4,846.19, making $16,426.16, and then was charged with the amount of his or her advancements, with interest thereon from Mrs. Wilson’s death, in February 1868, until October 16th, 1874, when the fund to be distributed was in the hands of the court; and thus showing the amount which was due to each legatee to be paid out of this fund.</p> <p>The cause came on to be heard on the 30th of April 1875, when the court overruled the exception to the commissioner’s report, disallowed interest on the advancements, and made a decree accordingly, distributing the fund among the eight legatees. And from this decree the children of Mrs. Cabell applied to this court for an appeal: which was allowed.</p>

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

<p>I. A vendor of land, who has retained the title, files a bill against the widow and infant children of the vendee, for a sale of the land to satisfy his debt. The widow answers, claiming dower in the land subject to the vendor’s lien. Judgment creditors of the vendee may make themselves parties to the cause, and have the land, subject to the vendor’s lien and the widow’s dower, applied to the payment of their debts.</p> <p>II. In such case the debt of the vendor is ascertained, and a commissioner is appointed to sell the land. He reports that a friend of the widow and children of the vendee has paid to the vendor his debt, and therefore he did not sell the land. The vendor then ceases to be interested in the case, and it becomes the suit of the creditors of the vendee.</p> <p>III. In such a case a commissioner is directed to settle the account of the administrator of the vendee, to take an account of the vendee’s debts and their priorities, and also of the present value of the widow’s dower in the land; and before the commissioner makes report the court decrees a sale of the land. Held :</p> <p>I. It was premature to decree a sale of the land before the debts of the vendee and their priorities were ascertained, and a settle- ■ ment of the administration account was made.</p> <p>2. It was also error to decree a sale of the land until the widow’s-dower was assigned to her in kind, or it was ascertained that it could not be so assigned, and a moneyed compensation to her in lieu of her dower had been ascertained.</p> <p>IV. A widow is entitled, as against creditors of her husband, by lien-created since her marriage, to have her dower in his real estate assigned in kind, if it can be done, without regard to its effect upon the interest of his creditors. If from the nature of the property, or of the husband’s interest in it, the dower cannot be assigned in kind, the court may sell the whole property, and make to her a moneyed com-' pensation.</p> <p>V. In this case the vendor having acquiesced in the decree for the ment of the amount ascertained to be due to him, and received the money; upon appeal by the widow and children of the vendee from a subsequent decree for the sale of the land for the payment of creditors, the appeal does not bring up the first decree, so as to entitle him as an appellee to have that first decree reviewed and reversed for error against him.</p>

<p>1. In a commitment by a justice, of. a person for forging an order, in setting out the order he writes out some words in full, which in the order as set out in the indictment are abbreviated, as Thomas for Thos., 23 cents for 23 c. Respectfully for Resp.’t’y. These are not such variances as require that the accused should be sent back to a justice for examination.</p> <p>2. To a plea of auterfois acquit, upon an indictment for forgery, the attorney for the commonwealth craves oyer of the former record, and demurs to the plea. The record shows that the indictment was for forging an order for forty-seven dollars and twenty-five cents, and that the order was for forty-seven dollars and twenty-three cents. This was a variance which entitled the accused to acquittal on that indictment; and therefore the acquittal on that indictment does not forbid the prosecution of the accused on another indictment for the same forgery, setting out the order correctly.</p> <p>3. By the Code of 1873, ch. 195, |¡ 15, p. 1218, a person acquitted by the jury on the facts and merits, on -a former trial, may plead such acquittal in bar to a second prosecution for the same offence, notwithstanding any defect in the form or substance of the indictment or accusation on which he was acquitted. But it must appear from the record of the first case, or be averred in the plea and proved, that his acquittal was on the merits.</p> <p>4. The act does not make a variance between the indictment and the forged paper immaterial. The accused must be acquitted on that ground, if no other. And if acquitted, the presumption, in the absence of evidence to the contrary, is, that he was acquitted on that ground.</p> <p>5. The difference between “ account ” as set out in the indictment and “ acct” as written in the order, is not a material variance, which will exclude the order as evidence.</p> <p>6. A genuine order by the same drawers upon the same party, which had been paid to the accused, as the order which the accused was charged with having forged, is not competent evidence for the accused.</p> <p>7. A witness who states that he is perfectly familiar with the handwriting of the accused, and states the circumstances which made him so familiar with it, expresses the confident opinion from his knowledge of the accused’s handwriting, that he was incapable of writing the order. This opinion is incompetent testimony, and properly excluded.</p>

<p>This was an information for a misdemeanor in the county court of Moyd against James M. Smart and Allen McKinsey. The case is fully stated by Judge Christian in his opinion.</p>

<p>I. A person examined by a justice for a felony, may be sent on for trial’ to the circuit court of the county then in session, and may be arraigned and tried at that term of the court.</p> <p>2. On the arraignment of a prisoner on a charge of felony, he files a special plea, to which the attorney for the commonwealth files a special replication; and to this replication the prisoner demurs. The demurrer being overruled, the prisoner cannot rejoin to the replication without withdrawing his demurrer.</p> <p>3. A prisoner indicted for felony files a plea of autrefois acquit, and makes the record of his former trial a part of his plea; and he avers that the offence for which he had been before tried is the same offence for which he is then on trial; and the evidence necessary to convict him on the present indictment, if introduced, would have convicted him on the first trial. The attorney for the commonwealth replies that there is no record of the trial of the prisoner for the same identical felony and offence charged in the indictment on which the prisoner is then arraigned. The replication denies one of the essential averments of the plea, viz : that the offence was the same as that for which the prisoner had been before tried; and is therefore a good replication to the plea.</p> <p>4. In such a case it would not have been proper to traverse the allegation that the evidence necessary to convict him, &c. The two indictments being for similar offences, and in the same words, except as to time, which is immaterial, of course the same facts which sustain the one would, standing by themselves, sustain the other. But when it is averred and shown that the two offences, though similar, are not in fact the same, but different offences, all foundation for the plea is taken away.</p> <p>5. Upon the trial of the issue on the plea of autrefois acquit, an instruction to the jury, that if they believe, &c., that the honse named in the indictment for the burning of which the prisoner was arraigned and tried at a previous term of the court, is not the same house, nor the same burning charged in the indictment upon which he now stands arraigned, then they must find against the prisoner on the issue joined is correct. And it makes no difference that the offences charged in the two indictments are described as the burnings of the dwelling house of R, if the jury believe that in reality distinct houses and distinct burnings are referred to in the two indictments.</p> <p>6. On the trial of the issue on the plea of autrefois acquit, R, whose dwelling-house was in both indictments alleged to have been burned, and who was the principal witness for the commonwealth as to the burnings on both trials, may be asked, and may state whether or not the verdict of the jury on the first trial had relation to the house charged to have been burned in the indictment on which the prisoner was then arraigned. The enquiry is as to a fact, not an opinion.</p> <p>7. Under the act, Code of 1873, ch. 202, \ 10, the court may direct jurors to be summoned from another county or .corporation for the trial of a prisoner upon the issue on the plea of autrefois acquit, as well as on the general issue.</p> <p>8. Whether it is a case in which a jury should be summoned from abroad, is for the court of trial to determine; and the appellate court will presume that the court of trial acted rightly in the matter unless the contrary plainly appears.</p> <p>9. The issue on the plea of autrefois acquit having been found against the prisoner, and he being on his trial on the plea of “ not guilty,’» eight of the jurors who had tried the first issue were called and examined on their voir dise, when they stated that, during that trial, they had heard R, in his testimony while speaking of the burning of the house, say that the prisoner had confessed; but as he used the last word he was interrupted, and told to say nothing about the confession; but that they believed they could give the prisoner a fair and impartial trial on the evidence, notwithstanding anything they had heard, having no impression on their minds on the question as to the guilt or innocence of the prisoner, which it would require evidence to remove. They are competent jurors.</p> <p>10. That admissions and confessions of a prisoner may be given in evidence against him. The rule in Smith’s case, 10 Gratt. 734, and Shifflet’s case, 14 Id. 652, reaffirmed.</p>

At the March term 1874 of the county court of Gloucester, J. W. McCready was indicted, for that he-did on the 1st of June 1878, and from that day forward until the 1st of March 1874, in the said county, he being then and there other than a resident of this state, unlawfully plant oysters in the waters thereof, against the statute, &c. The defendant appeared and moved the court to quash the indictment; but the motion was overruled.

At the November term, 1874, of the county court of Gloucester, the grand jury indicted J. W. McCready, for that on the 1st of September 1874, in the said •county, the said J. W. McCready, being then and there other than a citizen of this state, did unlawfully plant oysters in the waters thereof, to wit: in Ware ■river.

At the January term 1876 of the hustings court of the city of Richmond, Reuben Williams was indicted for the stealing of $150 of United States currency, the property of Peter Shields. He was tried at the same term of the court, was found guilty, and sentenced to three years’ imprisonment in the penitentiary. On the trial the prisoner took two bills of exception to the rulings of the court.

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

These eases were heard together in this court. They are the same in their character, and the questions involved in them.

This was an indictment for perjury in the hustings court of the city of Manchester. On the trial the jury found the prisoner guilty, and assessed his fine at one dollar, and the court sentenced him to imprisonment in the jail of the city for one year. There were a number of exceptions taken by the prisoner to rulings of the court; but this court only considered the question on the motion for a new trial on the ground that the verdict was not sustained by the evidence.