Volume 29 — Virginia Reports

This case was heard at Wytheville, and decided at Staunton. The case is as follows: On the 18th of October, 1871, a single bill obligatory was executed by the plaintiffs in error, Cecil & Perry, to *the defendant in error, Hicks, in the words and figures following, to-wit: “($7,000).

This case was pending in the court at Wytheville, and was argued at that place, but was decided by the court at Staunton. John A. Simmerman, of the county of Wythe, died in the year 1853, leaving a widow and one child, Mary Ann G., who was then married to John P. M. Simmer-man.

This case was argued at Wytheville and decided at Staunton. Tl was a bill filed by John Suavely against the heirs-at-law of Philip Pickle, deceased, in the circuit court of Srnythe county, to be permitted to redeem what *he claimed to be a mortgage upon a tract of land in said county. The facts are stated in the opinion of Judge Burks. The cause came on to be heard upon the 30th of April, 1875, when the court dismissed the bill.

This case was argued at Wytheville, and decided at Staunton. It is the sequel of the case of Sexton v. Crockett & als., reported in 33 Gratt. 857. The subsequent proceedings in the cause are stated in the opinion delivered by Judge Burks. There was a decree in the circuit court against the defendant, Crockett; from which he obtained an appeal.

*This case was heard at Wytheville, but was decided at Staunton. It was a suit in equity in the circuit court of Bland county brought in May, 1871, by Isaac P. and A. D. Rambert’ to set aside a will of Mary Cooper, deceased, which had been admitted to probate in the county court of Tazewell county in May, 1861.

George W. Crawford died in 1858, leaving a will, which was admitted to record in the county court of Augusta, and William Crawford qualified as his executor. The testator was unmarried, and had in his lifetime provided for two orphan boys, and by his will gave to them legacies. To George T. Shover, one of these boys, he gave a legacy of $8,000, and directed that it should be put out to interest for his benefit.

In March, 1861, A. K. Sitlington filed his bill in the circuit court of Highland county, to enjoin proceedings on a judgment recovered against himself and John Sitlington in that court by the administrator of Nicholas C. Kinney,.deceased, and also the sale of a slave named Henry, ordered to be sold by a. a cause depending *in the same court.

In November, 1871, William Robinson filed his bill in the county court of Rocking-ham to enjoin a judgment recovered against him by Samuel Shacklett, for $350, with interest from the 1st of October. 1862. In his bill he states that he purchased of John Ap-plegate and Hannah Applegate his wife, a tract of land in the county of Rockingham.

This case was argued at Wythevilie and decided at Staunton. In October, 1871, James H. Harkrader, of the county of Wythe, died intestate, leaving seven infant children, the eldest of which, Prances E-, was non compos. His wife had dPd a year or two before him. He was an industrious and successful farmer, owning two small tracts of land near to each other, on one of which he Hived.

This was a suit in equity in the circuit court of Augusta county, instituted in April, 1871, by the executors, devisees and legatees of Daniel Forrer, deceased, against Henry Forrer, for the settlement of an account of the partnership which had existed for many years between the brothers, Daniel and Henry Forrer.

John RudisBl, of the county of Nelson, died in 1874. He had made three wills in his lifetime, the last of which could not be found after his death, and he had, in fact, destroyed it with the intention that the second should be his will; but he did not re-execute it.

By deed bearing date the 8th of August, 1854, William L. Anderson. >of the county of Culpeper, in consideration of the natural affection he bore his wife, Martha J. Anderson, and his children born or to be born of his said wife, conveyed to Shelton F. Leake all his property after paying his debts then contracted, “in trust for the benefit of my wife and children aforesaid, conveying for my wife an estate for life, and at her death to my children an estate in fee simple;”…

This was a bill filed in the circuit court of Rockbridge county by Samuel C. Mackey to enjoin a judgment recovered against him by the administrator of Mary A. Mackey, deceased, for $905 with interest.

This was a suit in equity in the circuit court oí Rockingham county, brought in 1867, by Jonathan Shafer against Joseph Coffman and wife, and the administrator, widow and heirs of David Coffman, deceased, to subject land conveyed by David Coffman in trust to secure a debt of $5,000, which the plaintiff claimed that he had lent to David Coffman in August, 1844, the bond for which had been lost.

This case was argued at Wylheville, but was decided at Staunton. It was an action of trespass on the case in the circuit court of Botetourt, brought by Margaret Circle *against William W. Womack. The declaration contained live counts.

This was a bill filed in the circuit court of Albemarle county by Ann Eliza Bailey in her own right and as executrix of Thomas R. Bailey, deceased, for her dower, and the settlement of his estate. The only question involved in the appeal was the propriety of disallowing the interest during the war upon the debt due to Thomas H. Pretlow.

This was an action of debt in the circuit court of Rockingham county, brought by Anne Davisson, and on her death revived in the name of her executor, against John F. Lewis, James M. Crawford and Manasses Blackburn, late partners doing business under the name of Lewis, Crawford and Co., to recover the sum of $862.50, which the plaintiff alleged to be due to her upon a note bearing date the 19th of April, 1862, and payable on the 1st of April, 1864.

The original bill in this case was filed in the circuit court of Augusta county in 1866, by Samuel, Mary A., and Peter V. Bushong, against John J. Larew, for an account of moneys received by him as their agent.

This was a suit in equity in the circuit court of Rockingham county, brought in February, 1875, by Erasmus Coffman. D. W. Coffman and C. C. Strayer, to enjoin a judgment for $13,800, with interest from the 1st of September, 1868, which had been recovered against them *and others in the same court, by the executors of Charles Moore, deceased.

This case was argued at Richmond; but was decided at Staunton. It is sufficiently-stated in the opinion of the court delivered by Moncure, P.

This was a bill filed in January, 1866, in the circuit court of Buckingham county, by Camm Patterson and Mary E-, his wife, and three others, by said Patterson as ^trustee and next friend, against-John Plorsley, G. A. Hancock, William A. Turner and Nicholas Mills, Jr., for the settlement of the accounts of Horsley, as trustee, under a deed executed on the 4th of June, 1857, by Mary C. Horsley, by which she conveyed to said John Horsley and Charles Y. Plorsley, (but under…

This case was heard at Staunton, but decided at Richmond. It was an action of assumpsit in the circuit court of Rocking-ham, brought by Joseph Cromer’s administrators against Martin Cromer, to recover the sum of $4,000 which Joseph Cromer had paid in his lifetime as the surety of Martin Cromer in a guardian’s bond.

This was a suit in equity in. the circuit court of Washington county, brought in 1870, by Thomas L. Preston, to set aside a sale made by Robert Gibboney, as his trustee and agent, to William A. Stuart, George W. Palmer and George B. Parker, of a large amount of property, including what is known as Preston’s salt *works, in Smyth county, with several thousand acres of land, which Preston had conveyed to Gibboney in July, 1859, in trust, to sell and pay the debts of the…

This was a suit in equity in the circuit court of King William county, brought in April, 1872, by Bartlett Lipscomb, the former husband of Elizabeth Lipscomb, deceased, Miles B. Lipscomb, his assignee, and others, children of said Elizabeth Lipscomb, deceased, against Bolivar Stark, in his own right and as administrator of *Thomas Stark, who was the surviving executor of Henry Lipscomb, deceased, and his sureties, to recover a legacy of four hundred dollars bequeathed by…

This case was argued at Wytheville, but was decided at Richmond. It was a bill filed in the circuit court of Patrick county by Samuel G. Staples, to enjoin Murray *Turner, administrator of Rufus Turner, deceased, and others, from proceeding in two actions brought in said court against the plaintiff by said Turner for the benefit of Hardin W. Reynolds and James H. Rangely. The injunction was granted on the plaintiff’s confession of judgments in the cases.

*This case was argued at Staunton, but decided at Richmond. It was a suit in equity in the circuit court of Augusta county, brought in March, 1860, by John M. Huff against Henry Eidson and Eliza J., his wife, Samuel Shelby and others, to subject a house and lot in Churchville in said county to satisfy the lien of a judgment.

This case was heard at Staunton, but decided at Richmond. It was a creditor’s bill filed in April, 1871, in *the county court of Rockingham, by Samuel R. Allebaugh, executor of John Weller, deceased, to subject the .property of William W. Carpenter to the payment of his debts. Of this property there was a tract of six hundred acres of land, with a mill upon it.

_ This was an action of covenant in the circuit court of the city of Richmond, brought by Christopher W. McLean for the benefit of Eliza, W. Bissell and J. F. Darrow, against the Piedmont and Arlington Life Insurance Company *of Virginia, to recover the sum of five thousand dollars on a policy of insurance issued by said company upon the life of Wiley F. Higgins, of the state of North Carolina.

This was a creditor’s bill in the circuit court of the town of Danville, filed in August, 1873, by John P. Johnston, trustee of James C. Voss and his creditors, against the administrator de bonis non of George T. Wilson, deceased, and R. M. J,owrey and Sarah Josephine, his wife, to subject the interest of said George T. Wilson in certain real estate in and near Danville to the payment *of his debts.

This was an appeal by W. H. Dillard from a judgment of the circuit court of Sussex, in a case in which he was plaintiff and R. E. Thornton was defendant The case is fully stated by Judge Burks in his opinion.

In July, 1873, A. J. Broadnax, W. E. Broadnax and E. W. Wilkins instituted a suit in the circuit court of the city of Richmond, against the Petersburg Railroad Company, Reuben Ragland, the Board of Public Works, and several other persons; and the City of Petersburg afterwards became a party defendant in the cause.

This was an appeal from the decree of the circuit court of Caroline county affirming a decree of the county court. It was a bill by Benjamin Anderson to enjoin a judgment for $300 with interest from the 6th of March, 1860, and costs, which Coleman’s administratrix recovered in the circuit court of Caroline county in May, 1866, against said Anderson and Henry McCalley.

This was an action on the case brought in the circuit court of Shenandoah county, under ch. 145, §§ 7-9, Code of 1873, by George W. Koontz, administrator of William A. _ Wightman, against the Baltimore and Ohio Railroad Company, to recover damages for the death of his decedent, who died from injuries received at the well-known Narrow Passage accident, which occurred on the Valley railroad, which was then leased and operated by the Baltimore and Ohio Railroad Company.

This was an action of ejectment in the corporation court of Norfolk, brought in December, 1870, by Nicholas E. Cleary, Margaret Cleary and Reuben St. John Cleary, the persons who, at the death of Thoma’> J. D. Reilly, answered the description of his heirs at law, against Babel Taylor, to recover a lot of land in said city.

This was an appeal from a decree of the circuit court of Franklin county, rendered on the 20th of May, 1872, in a cause depending therein, in which some of the devisees and legatees of Thomas Helms were plaintiffs, and the executor and the other devisees and legatees were defendants, for the settlement and distribution of the estate of their testator.

This was a suit in equity in the circuit court of Culpeper county, instituted by James W. Curtis to enforce the execution of a deed of trust made in 1858 by George G. Thompson, by which he conveyed a tract of land in that county to James Barbour, to secure a debt by bond of $4,300, with interest.

This was a foreign attachment in chancery in the corporation court of the city of Alexandria, brought in November, 1871, by the Alexandria Savings Institution, to attach a house and lot in said city, and subject it to *the payment of a debt evidenced by three notes amounting to $375, executed by George J. Thomas.

-This case was heard at Staunton, but was decided in Richmond. It was an appeal from a decree of the circuit court of Frederick county, rendered in a cause in which M. G. Harman was plaintiff, and John H. Chrisman’s administratrix and G. A. White were defendants.

On the 28lh May, 1872, Paine & Co., sued out from the clerk’s office of the circuit court of the city of Richmond a summons, commanding the defendants therein *named, viz: Trice & Hunter, to appear and answer a plea of trespass on the case in assumpsit.

This case was argued at Staunton, but was decided at Richmond. It was a bill filed by James McGannon and Thomas Bennett against Robert White and Frances, his wife, to enforce the specific execution of a contract for the sale of a track of land sold by McGannon and Bennett to Mrs. White. There was a decree in the circuit court of Frederick county for the specific execution of the contract, and an application by White and wife for an appeal; which was allowed.

This was an appeal by the City of Norfolk from a decree of the corporation court of Norfolk perpetuating an injunction which had been granted to prevent the *removal of steps to a building which had been extended into the sidewalk of a street by R. H. Chamberlaine, by the permission of the council of the. city. The case is fully stated by Judge Christian, in his opinion.

This is the sequel of the case of McVeigh v. The Bank of the Old Dominion, reported in 36 Gratt. 853. Held: were covered by the former *decision of the court, and were therefore properly refused. The 9th, 10th, llth, and 12th are as follows: 9. If the jury believe from the evidence the following facts: 1.

This was an action of assumpsit m the corporation court of the city of Norfolk, in which the plaintiff declares as The American Stove and Hollow Ware Company, without stating it is a corporation, against J. R. Gillett. On the trial the defendant demurred to the evidence; and there was a verdict and judgment for the plaintiff. And Gillett thereupon applied to this court for writ of error and supersedeas; which was allowed. The case is stated by Judge Burks in his opinion.

This was an action of trespass on the case in the circuit court of Accomac county, brought by John J. Tunnell, administrator of Montesco Warner, deceased, against Franklin M. Matthews, to recover damages for the killing of Warner by Matthews. On the trial, the evidence showed that after receiving very abusive language from Warner, and that repeated, Ma.tthews shot him, and that he died from the effects of the shot in' about ten days.

Robert C. Selden brought an action of. debt in the circuit court of the county of Gloucester against John W. Backhouse, who was co-obligor with Thomas U, Taylor and Fielding L. Taylor, on a bond in these words and figures, to-wit: Victoria, Texas, February 3d, 1860. $3,000.

This was an. action of debt in the corporation court of Alexandria, brought by Richard 5. Allen against James H. McVeigh & Co., as makers, and William N. McVeigh as endorser of two negotiable notes, one of them for *$3,502.50 and the other for $1,502.50, both of them dated at Alexandria, 31st May, 1861, and payable in sixty days at the branch of the exchange bank at Alexandria.

This was an appeal from a decree rendered by the circuit court of Fairfax county, in a cause depending therein, in which William H. Erwin’s administrator was plaintiff, and the heirs of said Erwin were the defendants. The object of the suit was to have a sale of a part of the real estate of William H. Erwin, deceased, for the payment of his debts.

This was an action of debt in the circuit court of Elizabeth City county brought by Elizabeth Booker’s personal representative against George Booker’s administrator. The action was brought on a bond which said: “On demand, for value received, I promise to pay Elizabeth Booker the just and full sum of seven hundred and fifty-five dollars and eighty-seven cents, with interest from the date, and the interest to be paid half-yearly.

This was a suit in equity in the corporation court of Norfolk city, brought in April, 3 874, by the Mutual Assurance Society of Virginia, to subject the property in Norfolk known as the National Hotel, formerly French’s *hotel, to sale for the payment of quotas of insurance thereon for the years 3 863 to 1874. Prior to the year 3 836, the ground on which the hotel was built was owned in fee by the Mechanical Benevolent Society of Norfolk.

John H. Wickham, a man of high social standing and education, had been notoriously living in an adulterous intercourse with María F. Kersey, an humble, *uneducated and obscure woman, for twenty-five or thirty years, who had several children by him, the youngest of whom was about seventeen years old in 3 870. He was about sixty-seven years old, and she was about fifty-five. The children begotten had not been educated, but had been reared as inferiors.

This was a bill in equity in the chancery court of the city of Richmond, filed in June, 1872, by John Lindsey, claiming to be a creditor of the late partnership firm of Corkery & Milward, and seeking to attach a debt due by judgment to said firm by Hill & Maddox.

In the year 1860, Reginald Fairfax filed his bill in equity in the circuit court of Alexandria county, to subject to sale for the balance of the purchase money a tract of land which he had sold in 1852 to Benjamin Thornton, then of the state of Virginia, but at the time of filing the bill living in England.

In March, 187G, the Commonwealth, suing at the relation and instance of William F. Taylor, auditor of public *accounts, filed her bill in the circuit court of Charlotte county, in which it-was stated that at the May term, 1874, of said court the Commonwealth suing at the relation of William Cardwell, late treasurer (since dead), recovered a judgment on the law side of the court against one Peyton R. Ford, collector of Madison township, in Charlotte county, and A. B. Paris,…

This was a suit in equity in the county court of Mecklenburg, brought by the devisees and legatees of Sanford Bowers, deceased, against Paschal H. Bowers, administrator de bonis non of Sanford Bowers, and executor of James Bowers, deceased, and others, devisees of said James Bowers, to have a settlement of the account of administration, and a division of several tracts of land which plaintiffs claimed were owned in common by Sanford and James Bowers.

These cases were heard together and involve the same question. Mortimer Hogan had a license as a bar-room liquor dealer at his house No. 3210 Lester street, in the city of Richmond, and Moll had a similar license to keep such a bar at his house, near the second market-house.

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

_ This was a suit in equity in the corporation court of Winchester, brought in November, 1876, by the Union Bank of Winchester, suing for itself and such other lien creditors of M. Tilden Reed as will come in, &c. The bill set out three judgments recovered by the plaintiffs against Reed; that an execution on one of them had been returned “no effects;” that Reed had no personal property, but that he owned a house and a lot in the city of Winchester.

This was a suit in equity in the circuit court of Culpeper, brought in May, 1874, by L,ucy E. Hawley, by her husband and next friend, Charles M. Hawley, to enjoin a judgment in ejectment which had been recovered against Charles M. Hawley by Travis J. Twyman, trustee of Eliza W. Flint. Twyman and Mrs. Flint demurred to the bill, and also answered; and the court, upon their motion, dissolved the injunction.

This was a suit in equity brought in 1873, in the circuit court of Warwick county, and afterwards transferred to the circuit court of Elizabeth City county by Mary A. Neil-son, widow of Hall Neilson, deceased, and her children, against Samuel M. Bowman and others, to set-’aside two contracts which the plaintiffs had made with *said Bowman.

This was a suit in equity in the circuit court of Gloucester county, brought in 1871 '.by Mary E. Bentley, a married woman, by her next friend and her children, against ■ Thomas B. Rowe, Thomas S- Taliaferro and another, for a settlement of the accounts of said Rowe and Taliaferro *as trustees of the plaintiffs, and for general •relief.

This was an application to the supreme court of appeals, by James M. Tyler, sergeant of the city of Richmond, for a writ of mandamus to compel William F. Taylor, auditor of accounts of the state, to receive coupons-from bonds funded under the act of March 30th, 1871, which the said sergeant had received in payment of a fine which had been imposed upon one David C. Mayo, by the hustings court of the city of Richmond.

This was a suit in equity in the circuit court of the city of Petersburg, brought in June, 1873, by the Petersburg Railroad Company, and Reuben Ragland, claiming to be a large stockholder in said company, to enjoin the. City of Petersburg from collecting certain taxes for the years 1871 and 1872, assessed on the property of the railroad company by the City of Petersburg.

This was an indictment in the hustings court of the city of Manchester, against William G. Taylor and nine others, for a nuisance in obstructing Porter street in the city of Manchester. There was an issue on the plea of “not guilty;” and on the trial of the case the jury found a verdict against the defendants, and assessed the damages against each of them at one dollar; and fhe court rendered a judgment in accordance with the verdict, and for an abatement of the nuisance.

On the 5th of November, 1877, the grand jury of the hustings court of the city of Richmond found the following indictment against George Johnson: The grand jurors of the Commonwealth, for the body of the city of Richmond, on their oaths, present that George Johnson, on the 30th day of October, in the year one thousand. eight hundred and seventy-seven, at the said city, and within the jurisdiction of the said hustings court of the city of Richmond, in the night of that day,…

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

This was an indictment by the grand jury of Nelson county court against Horace Givens, for carnally knowing a female child under twelve years of age. The prisoner was tried for the offence, and the jury found him not guilty of the felony charged in the indictment; but guilty of an attempt to commit such felony; and fixed his_ term of confinement in the penitentiary at five years. And there was a judgment according to ; the verdict.

<p>Ship-Broker — Acts Which Do ]Yot Constitute. — W, agent in Fredericksburg for New York owners of lumber, proposes to P, captain of a vessel returning north, to furnish him with a cargo at « $5.50 per 1,000 feet, if P would allow W two and a half per cent, on the amount P received as freight on the lumber. This P refused. W made another proposition, which P also refused. The freight was then fixed at $5.50 per 1,000 feet of said lumber, and the vessel loaded the same, W being in and about the vessel working and superintending the loading, and he employed two men to assist the crew, and he paid them. These acts were those of a stevedore. After the work was done W received from P two and a half per cent, on the freight. W did not act as a ship-broker.</p>

<p>Statute — Indictment.*—If an indictment for a statutory offence, by following the language of the statute, charges expressly or by necessary implication, every fact necessary to constitute the of-fence, it is sufficient.</p> <p>Moitett Register Law — Constitutionality.—• The provision of the act of the general assembly of March 30th, 1877, known as the Moffett register law, which directs that the cities of the Commonwealth shall be first supplied with the registers, is not unconstitutional as being an unjust and partial discrimination against liquor dealers in the cities.</p>

<p>The case appears in the opinion.</p>

In January, 1877, the grand jury of the hustings court of the city of Richmond indicted John Maybush for subornation of perjury.