Volume 3 — Virginia Reports

This was an appeal from a decree of the superiour court of chancery of Richmond, upon a bill exhibited by the reverend William II.

This was an action of detinue, for a negro woman slave Hannah, and her child Billy, instituted in the year ^ 1801, in the Northumberland District Court by James Ewell, senior, against Robert Monroe Robertson. 1 lea non detinet and issue.

Samuel Dew, the appellant, on the 12th day of June, 1805, obtained from the General Court a rule upon the Judges of the Sweet Springs District Court, to shew cause why a mandamus should not issue,… Held: &c. came the parties by their attornies, who being fully heard, and the returns, on the said rule, by the Court maturely considered, it was ordered that the said rule be discharged;” from which order Dew appealed to this Court.

This was an action of detinue brought in the Superior Court of Franklin county, by James Bottom agarnst Robert Áhglin, for the purpose of recovering thrc, matves, Kate, Nelson and Murphy. On the trial of t\.- nnrase, the jury found a verdict for the plaintiff, which'“-the defendant moved the Court to set aside, as being contrary to the evidence; but the Court overruled the motion, and gave a judgment upon the verdict.

Kennedy brought an action on the case against John 8? William Miller, as consignees of goods on board the schooner Charlotte, of which the plaintiff was master.

Thilman brought case against Ellis, for a malicious; prosecution; and declared as follows: “ John Thilman, jr. complains of William Ellis in custody, &c. for that the said William contriving and maliciously intending unjustly to grieve, oppress, weary and impoverish him the said John Thilman, and put him to great expense without any just cause, of his mere malice did lodge an information before a Court of Enquiry for the said county, (that the said John Thilmanhad…

<p>Thilman brought case against Ellis, for a malicious; prosecution; and declared as follows: “ John Thilman, jr. complains of William Ellis in custody, &c. for that the said William contriving and maliciously intending unjustly to grieve, oppress, weary and impoverish him the said John Thilman, and put him to great expense without any just cause, of his mere malice did lodge an information before a Court of Enquiry for the said county, (that the said John Thilmanhad feloniously taken a negro, the property of him the said John Ellis,) and thereby caused the said John Thilman, jr. to be arrested, examined before a Justice of the Peace touching the said felony, and after» wards to be committed for examination before a Court of Enquiry for the said county, and the said information was so falsely and maliciously prosecuted and caused to be prosecuted against the said John Thilman by the instigation of the said William Ellis from the--day of-till afterwards, to wit: at a Court of Enquiry held for the said county of Caroline, on the 16th day of May, in the year of our Lord 17.93, when lie was acquitted of the charge aforesaid, by reason of all which premises the said John Thilman was restrained of his liberty and compelled to procure bail for his appearance before the Court of Enquiry, to spend large sums of money in his defence, and was moreover greatly injured in his good name, fame and reputation to the damage of the said John Thilman, jr. of five thousand pounds, and therefore he brings suit, &c.” Plea, not guilty; and issue. Verdict and judgment for the plaintiff for 120/.; and the defendant appealed to this Court.</p>

This was an action of debt on a bond for 814 dollars, brought by Watson against Powell in the circuit court of Amherst. The capias ad respondendum, upon which bail was required, was sued out in July, and made returnable to the rules to be held in the clerk’s office in August.

<p>1. E as the agent of B sells B’s slave, and then, with J and another executes a bond to B for the purchase money, which bond E holds as the agent of B. Whilst E holds the bond, the adm’r of £ sues out a foreign attachment against B as an absent debtor, andE as ahorne defendant; and obtains a decree against B for the amount of his debt, and against E for the amount of the bond to be applied to the discharge of the decree against B. Between the service of the attachment on E and the decree, a forged assignment of the bond from B to C is endorsed upon it; and C, who is in fact the agent of E, sells the bond to D for value, who takes it bona fide. D then brings suit upon the bond in the name of B, hut endorsed for his own benefit, against J, and recovers judgment thereon; whereupon /enjoins the judgment.</p> <p>Held:</p> <p>1. If the decree in favour of S’s administrator is not satisfied, he is, in equity, entitled to the bond; and he is, therefore, a necessary party to the suit.</p> <p>2. If B has discharged the decree in favour of S’s administrator, he is entitled to the bond.</p> <p>3. If E has discharged that decree, then D is entitled as assignee of E; and / is entitled to sot up his equity against E as one of the obligors in the bond; and any other equities he may have against E.</p> <p>4. A payment by / to D, with a knowledge that the assignment from B to C was forged, and of the equitable right of the administrator of S, though made under execution, would not protect / against the claim of the adm’r of S or of B.</p> <p>5. Equity has jurisdiction to protect /.</p> <p>2. Where a plaintiff in equity has shewn no right to relief, and his bill is dismissed, an appellate Court will not reverse the decree, to enable him to introduce new parties, and thereby make a new case upon the merits.</p> <p>3. Where the plaintiff has shewn a right to relief against parties before the Court, but has omitted to make other necessary parties, there the bill will not be dismissed; but he will be permitted to amend his bill, and add the necessary parties. And in such a case, the appellate Court, if there be a defect of parties, will send the case back to the Court below.</p>

The Auditor of Public Accounts moved the General Court for judgment against the defendant for 30/. “ alledged to have been erroneously paid him as a Commissioner in the county of ¿Hibernarle, for services performed in the years 1787, 1788 and 1789.” The Court over-ruled the motion, because no evidence was offered in behalf of the Commonwealth to prove, that the warrant issued to the defendant was ever presented to, or paid by, the Treasurer, or that the same hath ever been…

This was an appeal from the Fredericksburg Chancery-Court. The suit was brought by Reuben Kemper, against John Kemper, Daniel Withers, and Thompson Ashley. The following opinion contains a sufficient history of the case.

The appellee Gilbert brought suit, in formá pauperis, against the appellant Richeson administrator with the will annexed of Rucker, to recover his freedom, in the county court of Amherst. The proceedings and pleadings were in the usual form, putting in issue the plaintiff’s right to freedom. Upon the trial, the jury found a special verdict, stating—i That the plaintiff Gilbert was the slave of the defendant’s testator Rucker, at the time of his death.

The appellees, Conrad Carr, and Magda-line, his wife, in February, 1794, filed their bill in Chancery, in the County Court of Hardy, against Rudolph Shobe and Leonard Shobe, executors, and the said Rudolph and Leonard Shobe, devisees of Martin Shobe deceased, stating that the said decedent, after having made and duly' published his last will and testament, died, some time in the year 1792,§ leaving four sons and one daughter, to wit, Martin Shobe, Rudolph Shobe, Leonard…

THE appellees, Conrad Carr, and Magdaline, his wife, *n February,. 1794, filed their bill in Chancery, in the County Court of Hardy, against Rudolph Shobe and Leonard Shobe, executors, and the said Rudolph and Leonard Shobe, devisees of Martin Shobe deceased, stating that the said decedent, after having made and duly pubjjghed his last will and testament, died, some time in the year 1792,* leaving four sons and one daughter, to wit, u ° 7 Martin Shobe, Rudolph Shobe, Leonard…

Thomas Gaines, late of Culpeper county deceased, by Ills last will, dated the 4lh December, reciting that he was about to leave… Held: that the sureties of Gaines as guardian for Susan Gaines, were responsible to her for her share of the proceeds of the land, subject to a deduction for the goods furnished her by Thompson and by JYorris respectively; and deducting, accordingly, the amount of their bills respectively, from her share, he decreed that Tutt (Jones being…

Richard Foote and William Haywood Foote, filed a, bill in the High Court of Chancery, against John Thornton Fiizhugh and Margaret, his wife, stating, that Richard Foote, the father of the plaintiffs, died in 1778, leaving the plaintiff’s infants of very tender years; and that the defendant Margaret, who was the testator’s wife, aione qualified as executrix of his will.

Trespass quare clausum fregit, brought by Harris against Izard Bacon, in the Superior Court of Henrico. Bacon died pending the suit; and Crenshaw, his devisee, and his executors, were made defendants by consent. He pleaded the general issue. Verdict and judgment for defendant. Harris appealed. The controversy turned on a question of boundary, and the title of 6,0 acres of Chickahominy Swamp was in dispute, of whieli both parties claimed the right of possession.

<p>A bequest to a corporation, of its own stock, is valid.</p>

<p>John Armistead, of the county of Caroline, by his last w^; dated June 25th, and proved July 9,1st, 1788, after sun(^ry devises of his lands to his zvidow and sons, direct» ed “ the slaves which should remain after paying his its debts, to be equally divided between his widow and '‘children* share and share alike, but to be kept toge-dleih a°d worked on his lands, or part hired out, at discretion of his executors, for the generad support and maintenance of his widow and ‘ childrenand that, . as his sons respectively came of age, and his daughters . , r , • , , married or came ot age, his or her share or proportion thereof be allotted and given up to them, and the residue to be considered as undivided, until his son Addison arrived of age, when he desired a division of his slaves to be made between his widow, and such of the children as had not had their dividend or proportion of Item., he gave to his children his personal estates s]aves not included) in the counties of Prince William 1 ' and Loudoun, equally, and to be kept together, and al» , , ru-i , lotted, as directed in the case oí his slaves; except that, when his son Addison should come of age, and had taken his share thereof, the residue be sold, and the money clivided equally between those 1 children’ who had not had a share of the personal estate.v</p> <p>At the time of making this will, the testator had six sons, and two daughters, namely, John Baylor, William, Addison, George, Lewis, Walker, Frances, and Alary, of wu0ln plant was not mentioned bu name, in the will. ’Jv •</p> <p>Ha had also a daughter in ventre ,sa mere, who was 0 # * born alter his death, baptized by the name ox Eleanor, amd became the wife of John Dangerfield, who, thereupon, filed his bill, in her right, in the Superior Court of Chancery for the Richmond District, against Lucy Arrrúhtead, the widow and executrix, John II. Armhtcad, and others, devisees and legatees, of the said testator, and William Herndon, and otha s, purchase) 3, of sundry lands from the said devisees; claiming, by vinue of the act of assembly in favour of isosthumous children, (a) as 1 . ‘ . . for a childpretermittedin the will, su h portion oí the real anil personal estate of the decedent as she would have been entitled to if her father had died intestate» The prayer of the bill was that tin: said devisees and executrix should, severally, set forth what parts of the said estate had come to their hands anti possession respectively ; that the other defendants should set forth, and discover, what portions they respectively held, and from whom their titles were derived ; that a division and partition he made, “so as to compel each legatee and devisee to abate proportionably for the purpose of making up the portion of the plaintiff.”</p> <p>Lucy Árn.vistead, the willow, in her answer, averred, that “ her late husband was not informed that she war enseint of that child, at the time of making h's will.” Her deposition was also taken, in which die swore that he left home in an extreme bad suite of health, in March, 1788, for Philadelphia, accompanied by their son, John Ji. Arm’stead', that the account of his funeral expenses, transmitted to her from Philadelphia, was dated, June 27th, 1788; and that, on the 3d day of September, 1788, the plaintiff Eleanor was born.</p> <p>Johnli. Arraistead, in his answer, said, that he accom - panied his father to Philadelphia, and was with him at the time of his death ; and, from what was said by him during the journey, and in Philadelphia, “ this defendant is certain his father was acquainted with the pregnant state of ¿his defendant's mother, at the time he published and cíe dared his said last will and testament.” The respon(jent also swore that he was himself a duly certificated bankrupt, and, therefore, had no interest in the event of the present suit.</p> <p>In the answers of William Herndon and others, purchasers of lands of which the testator died seised, it was alleged, that they severally purchased -without notice of the plaintiff’s claim. Thomas Newman, one of them, said, that “he hadbeen advised that the said Eleanor had no right to any share of the said lands under the last will of her said father, whose intention appears to have been to devise his landed property to his sons, in exclusion of his daughters, and to provide for all his daughters out of his other estate, being possessed of many slaves and other personal estate. Atthe time of making his said last will, this defendant believes, and so he alleges, that the said testator well knew that his wife Lucy was far advanced in pregnancy, and, in case a daughter should be born, that the expressions used in his will did include her, as well as his daughter Mary, who is not named therein ; but, in case a son should be born, that he would share, under the law of Virginia, a part of his lands, with his brothers.”</p> <p>The cause came on to be heard the 12th of February, 1811, when Chancellor Taylor was of opinion, that “ this case presents the naked question of a posthumous child, who was neither provided for, nor disinherited, but only pretermitted by the testator’s will, and is the very case contemplated by the Act of Assembly; and. notwithstanding the case of Reeve v. Long, reported in 1st Salkeld, p. 227., the rule is this, that, where a testator-speaks of children, generally, he is to be understood as referring to those either living, and in esse, at the time of making the testament, or at his death, as circumstances, to be collected from his will, may justify ; and not of those who are in ventre sa mere.” He therefore decreed that certain “ commissioners do divide the slaves and other personal estufe, late of John Armistead, deceased, (after the payment of his debts,) and the lands whereof he died seised and possessed, into nine equal parts, and allot and assign to the plaintiffs, in right of the plaintiff, Eleanor, one of those parts, for her share of the said estate; and that the defendants do respectively make up an account of the rents and profits of the said real estate, from the periods they severally came into the possession thereof.” From which decree the defendants, on their motion, were allowed an appeal. (b)</p> <p>contended that the plaintiff, Eleanor, was not disinherited, or pretermitted, but actual'y provided for by the will, under the word “ children," which comprehended a child in ventre sa mere ; in support of which position, he cited Mi’lcr v. Turner, 1 Vezey, sen'r. 86.. Doe v. Clarke, 2 H. Bl. 399., and Doe v. Lancashire, 5 T.R. 61. From these cases it appears that such a child is, in general, considered as born for all purposes which are for his benefit.' It may be said, that, in the case now before the Court, it is more beneficial for the infant to claim under the statute than under the will: but the question is concerning the fair intention of the testator. The right under the will cannot be altered, but the rule of construction must be the same us if the statute had not passed.</p> <p>There is a class of cases where the devise is not to the children of the testator, but of some other person, in which it has been decided, that not only posthumous children, but all born after the making of the zvi'l, have been excluded. There are other cases conflic.ing witsi these. But there is no case establishing such a rule, where the devise is to the children of the testator. His reason for devising to his brother's children may be particular affection for those living at the time of making the will; but it would be unnatural and preposterous to make a distinction between a posthumous child of his ozvn and his other children. Besides, if a devise to a brother’s children were to be construed as extending to all after-born children, the distribution might be delayed for many years : but, in the case of a posthumous child of the testator, Jt can ge only for nine months.</p> <p>f anticipate the only argument on the other side j that this testator might not contemplate his having a posthumous child. But this is not to be presumed, and the contrary, indeed, must be inferred in this casé ; Mrs. Armistead having gone three months with child when he went to Philade phia. The assertion, in her answer, being contrary to the nature of things, is not to be regarded 5 especially, when pointedly contradicted by the answer of John B. Armistead.</p> <p>2. Í contend that the testator intended his personal estate on’y, anu not his lands, or any part thereof, for his daughters. Frances and Mary were excluded from participating in the land»; and, surely, the posthumous daughter ought not to be preferred to them. The act of Assembly is founded on the presumption that the testator would revoke so much of the will as pretermits his posthumous child, it ought, therefore, to be applied to revoke it, only so far as he would have revoked it.</p> <p>3. The purchasers of the legal title to the lands ought not to be disturbed by the decree.</p> <p>4. The Chancellor has erred in giving Mrs. Dangerfield one ninth, without directing that each devisee and legatee shall contribute proportional'y to make up her portion.</p> <p>The question turns on the intention of the testator, if he did not intend to provide for the posthumous child, this court cannot make a will for him. 1 he court, in construing a will, is not to regard the obligations of natural affection, or what will the testator ought to have made, but only what children he had actually in contemplation when he made it. This will, especially, was made in prospect of speedy death; not to provide for future occurrences which might take place in his life-time. From the will itself, it may be inferred, that he intended to provide only for children then in esse. A distinction is made between sons and daughters. If, then, he meant to provide for a posthumous child, would he not have adhered to his rule, and kept up his distinction ? He would have said, that if a son, it should share with the sons; if a daughter, with the daughters. This circumstance distinguishes this will from all the cases, and shows he meant by “ children,” generally, only the children then living ; so that, even if other children had been afterwards born in his life time, they would not have been provided for without a new will.</p> <p>But, according to the authorities, where the devise is to “ children” generally, without using words, de futuro, such as to ail the children- who shall be living at his death,” the will is to be understood as speaking at the time when it was made, and none born afterward are to be let in.(a) It is laid down in 2 Stra. 1093. Andrews v. Fulham, that a devise, per verba dejuturo, to an miant en ventre sa mere, will take effect; and in Powell on Devises, p. 332. that, “where any express words are used, or facts adverted to by a testator exercising his bounty toward such infant, from whence an implication or inference can be drawn, that he was aware the devisee could not take immediately,” the devise will be good. But, without such words, or facts, it would seem that an infant en ventre sa mere could not take by devise. The cases referred to by Mr. Botts do not contradict this position. Miller v. Turner, 1 Vczey, sen. 86. is a case of a marriage settlement; in construing which, children are considered as purchasers; and children to be born after the settlement are always in contemplation of the parties. In Doe v. Clark, 2 H. Bl. 399. verba de futuro were used; the devise being, “ to such child, or children, of B. as shall be living at the time of his death.” The posthumous child of B. was considered as living for the purpose of receiving the benefit of this devise. But that case is not like this, and Doev. Lancashire, 5 T. R. 61 • is yet more dissimilar; the only point decided being, that a subso . quent marriage and birth of a posthumous child atnousit: to an implied revocation of a will of lands.</p> <p>jn th¡s case, if the testator had intended to provide for the posthumous child, he would have done it in verba de jiitm-O' But he failed to provide for it, because he was not informed of his wife’s pregnancy; or, perhaps, because he knew that the law provided for it. According to the case of Smith and wife v. Chapman, 1 II. and 31 240. every man making a will must be supposed to be influenced by the existing laws.</p> <p>' 2. Mr. Bolt's second point cannot be supported, if he fails in his first. We insist that the posthumous child is altogether pretermitted by the will. If so, she must take under the act of Assemb’y, and not under the will; and therefore must take a share of the real as well as the personal estate.</p> <p>3. We are not going, in this case, against purchasers without notice. They were bound to take notice of the plaintiff's legal title ; for they bought of devisees: and, at their peril, were to see that the devise was sufficient in law to enable the vendors to sell. But, as to legal rights, want of notice does not protect a purchaser, (a)</p> <p>4. The chancellor’s decree is to be understood with reference to the act of assembly; so as to be carried into effect conformably to it. There is, therefore, no error in that part which gives the plaintiff one ninth part of the real and personal estate.</p> <p>The construction contended for by the gentlemen amounts to this, that when a testator provides, expressly, for his child/ en- w thout restriction, he does not mean to provide for all his children ! They would even make the legislatureguilty of the absurdity of making a law to provide for posthumous children, leaving all the children born after the making of the will, except posthumous children unprovided for; since Mr Wickham contends, that children born, after the making of the will, in the lifetime of the testator, cannot take under a devise to children generally! He was right, however, in taking tids ground { for there can be no cTíátiñctión between a c posthumous child, and such children as are born after the uiaklug of the will. '</p> <p>The authorities cited in 4 Bac. 341, do not even touch the subject. There is nothing concerning it in Dyer, 1.7U and Cs. LHt. Í12. b. Preced. Chtin. Í77. (Northey v. Burbage,} applies to real estate only, in 1 P. Wms. 340. {Northey v Strange.) the devise was not to children, simply, but alc-o to grandch-ldren; giving each grandchild an equal share with the children', per capita, and sot per stirpes; that was, therefore, a compound case, not resembling this. And in 2 Fern. 105. (Garbland v. May at,) cited in the same page of Bacon, it was determined, when A. devised 20/. a piece to all the children of his sister, that a child born after the making the will, and before the death of the testator, should take j the zvord “ children,” comprehending ail.-</p> <p>The plain question is, whether Mrs, Dangerfield was provided for by the will at all. If she took any thing under the will, she can take nothing under the statute.</p>

Hastie & Co. merchants, and partners, and British subjects, filed a bill in the High Court of Chancery against Brewer, praying an account and relief for money due for dealings with Lindsy their factor in Virginia, before the Revolution.

Hastie & Co. merchants, and partners, and British subjects, filed a bill in the High Court of Chancery against Brewer, praying an account and relief for money due for dealings with Lindsy their factor in Virginia, before the Revolution.

<p>Hastie & Co. merchants, and partners, and British subjects, filed a bill in the High Court of Chancery against Brewer, praying an account and relief for money due for dealings with Lindsy their factor in Virginia, before the Revolution. The answer admitted dealings to a considerable ^amount, but alleged that Brewer had paid considerable sums of money and tobacco towards the discharge thereof, and had frequently solicited the plaintiff’s factors and agents for a final settlement,, which they did not comply with until the year 1774 or 1775, when one Burt presented an account, which upon examination, the defendant found to be incorrect, and sets forth some credits which he claims. That, upon receipt of the account rendered by Burt, he went to Petersburg prepared to settle and discharge the balance, but, upon enquiry, found that the plaintiffs’ agents had all left the country.</p> <p>There are no documents or evidence filed in the cause, except a copy of the plaintiffs’ account.</p> <p>The Court of Chancery referred the accounts to a .Commissioner, who reported a balance of 2251. 13s. 8d. due the plaintiffs, with'interest from the 1st September, 1775.</p> <p>No exception to this report was taken, either in the Commissioner’s office or in the Court of Chancery; and that the Court confirming the report., .decreed payment of the balance reported due, with .interest as aforesaid. From which decree, the defendant appealed to this Court.</p> <p>There was no evidence of the debt; for, the answer does not admit the amount, but merely that there had been dealings between the parties; and, therefore, the .ap-pellees were not entitled to a decree for any sum. However, be that as it may, the decree was clearly wrong in allowing interest during the war; as the plaintiffs were British subjects, who, by their own bill, shew that they were out of the Commonwealth ; and the answer states, that the defendant was desirous of a settlement, but could not obtain it.</p> <p>The answer admits, that there *were dealings and transactions, and only claims credit for some tobaccoes and grain ; which virtually amounts to an admission, that the items stated in the plaintiffs’ account were really furnished; especially, as the account is referred to, and made part of the bill. Besides, upon the taking of the account before the Commissioner, the defendant appeared, his allegations were heard, a report made, and no exception taken, either before the Commissioner or in the Court of Chancery. After which, it is too much to deny the existence of the debt. As to the question of interest, that is submitted to the judgment of the Court upon the law.</p>

This was an appeal from the High Court of Chancery. 'The bill states, that James Underwood, the father of the plaintiffs Jinn Starke and Martha Underwood, who live in the City of Richmond, died in 1773, haying first mads his will, and thereby devised, as follows: I lend to my loving wife Ann, the use, labour, and profits of one third of my slaves, during her natural life; my will and desire is that the dower slaves of my loving wife Ann (meaning the third lent to her as…

This was an appeal from the High Court of Chancery. The bill states, that James Underwood, the father of the plaintiffs Ann Starke and Martha Underwood, who live in the City of Richmond, died in 1773, having first made his will, and thereby devised, as follows: “I lend to my loving wife Ann, the use, labour, and profits of one third of my slaves, during her natural life ; my will and desire is that the dower slaves of my loving wife Ann (meaning the third lent to her as…

<p>This was an appeal from the Greenbrier Chancery Court.</p> <p>The bill was filed by William Bowyer and John B. Caldwell, against Thomas Creigh and others, who had obtained judgments against James Caldwell. The history of the transactions which gave rise to this controversy, is fully unfolded in the following opinion of Judge Carr.</p>

Martin, on the 28th May, 1798, filed a caveat against patent to Currie, as assignee of Henry Banks, on a surof 2,225 acres of land in Harrison county, dated 30th .1November, 1797; part of a warrant for 58,400 acres entered the 11th of May, 1784: 1. Because the entry does not express the date and number of the warrant. 2. Because the warrant did not exist at the time of the entry. 3. Because the entry was not special enough. 4.

<p>The principles applicable to a voluntary conveyance, in a controversy between creditors of the grantor and claimants under the deed, investigated and discussed by Judges Stanard and Baldwin.</p>

Martin, on the 28th May, 1798, filed a caveat ag-ainst a patent to Currie, as as-signee of Henry Banks, on a survey of 2,225 acres of land in Harrison county, dated 30th November, 1797; part of a warrant for 58,400 acres entered the 11th of May, 1784: 1. Because the entry does not express the date and number of the warrant. 2. Because the warrant did not exist at the time of the entry, 3. Because the entry was not special enough. 4.

JOHN STARKE and Elizabeth his wife, filed their bill, in the Superior Court of Chancery for the Richmond District, against Philip Sheppard, executor of Joseph Sheppard., deceased, for settlement of his administration account, and division of a residuum of the estate of his testator5 among his brothers and sisters; their names (as setfortfl ln t!le bill) being Elizabeth, the plaintiff, Philip, the defendant, Polly, the wife of Austin Morris, Susanna, the wife of Edmund James,…

Elizabeth Coleman died in 1819, seized and possessed of sundry real and personal estate, and intestate. Her daughter Mary, who afterwards married Daniel Christian, her sons James, Thomas and Samuel, and her grandchildren, John, Elizabeth, Robert, Eindsay and James Hardwick, the children of her deceased daughter Anne Hardwick, were her heirs and distributees. . Her son Thomas was her administrator.

A writing purporting to be the last will and testament of Philip Vass deceased, was offered for probat in the county court of Halifax, by J. W. Cook, the executor therein named; and the probat was contested by Alex. Boyd and John Shepperd. The county court, upon a hearing of the evidence on both sides, refused the probat.

<p>Haynes offered a petition to the County Court of Bed-ford, for leave to erect a water grist mill on Goose creek; the dam to abut against the lands of Mead. A writ of ad quod damnum was awarded; and an inquest was returned, stating that a dam ten feet high might be erected without producing any of the inconveniences mentioned in the act of Assembly, and condemning one acre of land belonging to Mead, for an abutment. Mead, and several others (who were heirs of William Mead deceased, and were permitted to enter themselves defendants in the cause,) entered into an agreement, that no advantage should be taken by them of any discontinuance, that may have happened in the cause, or for any defect in the notice or summons awarded against them or any other person in the cause; or for the failure to state in the petition for the writ of ad quod damnum, that the petitioner was the owner of the land on one side of the creele, when he proposed to erect the said mill; and that the right to the. bed of the said stream was in the Commonwealth. The Court refused leave to erect the said mill, because it was admitted by the parties, that the persons admitted defendants claimed the bed of the creek, under a grant which issued to William Mead, their ancestor. The grant alluded to was issued in August, 1792, and is of a tract of land lying ££in the county of Bedford, including the bed of Goose creek.”</p> <p>Haynes appealed to the Superior Court of Bedford; which reversed the decision of the County Court, and gave leave to Haynes to establish the said mill. Thereupon ]\peaci appealed to this Court. It was agreed between the parties, that the following evidence, given on the trial of ^js cause> should be certified and compose a part of the record, viz: the patent before-mentioned, which the Court is of opinion, from inspection as well as from the evidence of witnesses, includes only the bed of Goose creek, perhaps for the space of five or six miles: that at the place where the mill is proposed to be erected, Haynes, held the land on one side of the creek by an ancient right, and the ancestor of Mead and others held the land on the other side, by a like ancient right; that afterwards, and since the day of--------- 1779, the ancestor of Mead entered, surveyed and obtained a patent for the bed of the creek, for the distance of five or six miles, along the creek, at and above the place .proposed for erecting the said mill. The Court was of opinion, that from these facts, the patent aforesaid is void, and that the right to the bed of the creek was in the Commonwealth; and no other objection being made to the erection of the mill petitioned tor by the appellant, the Court granted leave for the Same.</p> <p>The cause was argued in this Court, by Wickham for the appellants, and the Attorney General for the appellee.</p>

Goodall and Clough filed a bill of injunction in the High Court of Chancery against John Bullock, jun. which stated that Goodall, being Sheriff of Hanover, in May, 1792, a writat fieri facias for 497/. is.

This was an appeal from the Richmond Chancery Court. William Miller, as surviving partner of William Brown 8? Co. filed a bill against Mexander Sharp, alledging, that Sharp had sundry dealings with William Brown 8? Co. upon which there was a considerable balance due the said Brown 8?

William Branch, sen., of the county of Chesterfield, by his last will and testament, having devised to his son William, a tract of land, and certain slaves and stock, then in his, the said William’s, possession, “barring all claims in future against the testator’s estate,” and to his sons Joseph, Henry, Thomas, and Francis, and his daughters Judith and Martha, certain lands; lastly, “to his beloved wife Judith, he gave the land on which he resided, her natural life, as,…

William Branch, sen., of the county of Chesterfield, by his last will and testament, having devised to his son William, a tract of land, and certain slaves and stock, then in his, the said William's, possession, “ barring all claims in future against the testator’s estate,” and to his sons Joseph, Henry, Thomas, and Francis, and bis daughters Judith and Martha, certain lands ; lastly, “ to his beloved wife Judith, he gave the land on which he resided, her natural life, as,…

Ralston and M’Nevin brought a suit in the Chancery Court of Richmond, against Miller, Hetherton, Taylor and M’Murdo, setting forth the following case;—-that the complainants, on the 29th of April, 1817, purchased of Miller, part of a certain lot of ground, .on the South side of E or Main street, containing 39 feet 10 inches front on the said street: that the said property belonged to Hetherton; but he being an alien and not capable of taking a title to the same, it was held…

Goodall and Clough filed a bill of injunction in the High Court of Chancery against John Bullock, jun. which stated that Goodall, being Sheriff of Hanover, in May, 1792, a writ of fieri facias for 4971.

Mosby brought detinue against Bradley for some slaves. Plea, non detinet, and issue.

An appeal from a decree of the Superior Court of Chancery, for the Richmond District, pronounced by the late Judge of that Court, dismissing, with costs, the bill of the complainants. *Nicholas Lewis, being indebted by bond to John Wily, the latter brought suit thereon, in the General Court, and employed Mr. Duval, an attorney of that Court, to conduct it.

Mosby brought detinue against Bradley for some slaves. Plea, non detinet, and issue.

Ashby brought trespass against Kiger in the Circuit Court of Hampshire: and affidavit being duly made by Ashby’s agent, that the writ was sued out to recover mesne profits of land lying in Hampshire, belonging to Ashby, which Kiger had held for many years; that those profits amounted to $1000; and that there was good cause to believe, that Kiger would move out of the Commonwealth before the determination of the suit; thereupon, a justice of the peáce of Hampshire endorsed on…

AT the trial of an action, of trespass, in the County Court of Wythe, on behalf of Stephen Saunders against .

Ward brought an action of slander against Rixey, in the- Superior Court of Culpeper, in September, 1819. The jury found a verdict for the plaintiff, and assessed his damages at @50. On' the next day, the plaintiff moved for a new trial, which was granted by the Court, for reasons appearing to them, without stating what those reasons were.

The executors of Hanna brought an action of debt, its the Superior Court of law for Monongalia county, against Reed, on an injunction bond, executed by the said Reed and another, who had since died. The plaintiffs declared on the penalty, without setting out the condition.

The appellants instituted an action of detinue in the District Court held at King and Queen Court-house, for the recovery of the following negroes, viz. Charles, John, William, Butler, Solomon, andMilsey. The defendant pleaded non detinet, on which issue was joined. At the trial, the parties agreed a case, from which the following statement is extracted.

This was an appeal from a decree of the court of chancery of Frederichshurg, in a suit brought by Richard, Foote, against James Taliaferro. The bill contained a great deal of matter, which Foote deemed pertinent to his object, and concerning which much was said in the argument, but which this court thought wholly irrelevant; and Taliaferro’s answer related, for the most part, to the irrelevant allegations of the bill.

MANN PAGE, the elder, by his last will and testamtmt, dated the 7th of November, 1780, directed certain n lots, laid oiF for a town in Hanover County, to be sold to i » . _ . pay his just debts and legacies.

Duval filed a bill in the High Court of Chancery, stating, that he had become surety for Campbell, in some bonds to Croughton. That the plaintiff had requested the defendant to sue Campbell, but never could prevail upon him to do so. That after Campbell’s death, the plaintiff solicited the defendant to take administration on his estate, and offered to be his security; but this also was declined. The bill, therefore, prays that the bonds may be delivered up.

This was a suit brought by Lacey, in the Winchester Chancery Court, to injoin and restrain Beveridge from digging or causing to be dug, the ground in one of the streets in the town of Middleburg, in Loudoun county.

IN an action of assumpsit, in the County Court of Fauquier, on behalf of Burton Whatham and Anne his wife, formerly Anne Chandler, administratrix of Stephen Chandler, deceased, against Joanna Rogers, administratrix of Robert Rogers, deceased, the defendant pleaded “ non assumpsit by her intestate,” and plene administravit; to which pleas the plaintiffs replied generally.

Edward Bolling, by his last .will, after disposing of sundry lands and slaves among his four brothers, Robert, Thomas, John and Archibald, and after giving several other legacies, among which was one of 100/. to his sister Tazwell, devised as follows: “ It is my will and desire that my Boole, be-given, up to my brother Robert Bolling, and that he receive all the debts due to me, and pay all that I owe.

This was an appeal from a decree of the Staunton Chancery Court. Patteson and wife filed a bill against the surviving children and grand-children of Samuel Cunningham, deceased, for a division of a certain tract of land, which, they alledged, had belonged to the said Samuel, in his life-time. In praying process, some of the defendants were omitted, and others mentioned by improper descriptions; as the opinion of this Court sufficiently sets forth.

THIS was a suit in Chancery, on behalf of fames Turner, against Bartholomew Turner, in the County Court of Goschland. The object of the bill was an account of profits, and conyeyanpe of the title, of a tract of land, for which a deed had been made by a certain William Sampson and Betsey his wife, to the defendant.

A controversy having' arisen between Robert Pollard and David Patterson, concerning the proceeds of a sale of 75,000 acres, belonging to the latter, which the former had sold to Robert .

John A. Robertson brought an action of covenant in the Superior Court of Amelia county, against George Robertson.

<p>THIS was an application, to the Superior Court of Chancery for the Richmond district, by John Stockton, purchaser of a tract of land from William and John Ra-uberts, to be relieved against his bond for 52i. 10s. part of the purchase money, on the ground that the land was encumbered by a previous mortgage for 64/. 11s. 8d, from the said William Roberts to James Smith £s? Company; from which encumbrance the complainant insisted that he ought to be exonerated, because the original written agreement concerning the purchase, bound the said William and John Roberts to make him a title “ clear of any fraud<or deceit;" and their deed to him contained a clause warranting the land to be, at the time of granting the same, free and clear, of and from, all manner of encumbrances, and from the just claim of any person or persons whatsoever</p> <p>The complainant, in his bill of injunction, did not mention whether he had notice of the encumbrance, at the time of the purchase, or not. He alleged, however, that, having paid the residue of the purchase money, he advertised his said bond, forewarning ail persons from taking an assignment thereof; notwithstanding which, the defendant, Harman Cook, bought it for little more than five pounds, and afterwards, as assignee, brought an action at law, and recovered a judgment upon it;— that James Smith &? Co. had commenced a suit in Pittsylvania County Court to foreclose the equity of redemption ; and that William is? John Roberts were insolvent.</p> <p>It was alleged in Cook's answer, and proved by testimony, that the complainant knew of the mortgage before he bought the land. It also appeared in evidence, that Cook, before he bought the bond, was fully informed of Stockton's determination not to pay it in consequence of that encumbrance.*</p> <p>The late Chancellor, Wythe, on the 21st of September, 1803, dismissed the bill with costswhereupon, in October following, the complainant filed a bill of review, alleging the said decree of dismission to be erroneous on its face; — -in which last-mentioned bill a new averment was inserted, “ that the complainant was ignorant of the encumbrance at the time of the purchased — ■ But this allegation, was disproved by the deposition of Samuel Calland, who stated “that he was and is now the agent of Smith Company j that among their papers, he disc overed a deed of trust or mortgage for Robert’s land; that he made Stockton acquainted therewith, who made light of it, and plainly intimated to the deponent, that he, Stockton, believed that the British debts would never be paid ; and that the purchase by Stóckton took place after this information was given him.” This witness stated, further, that he brought a suit, as agent, to foreclose the mortgage, or deed of trust, and obtained a decree, amounting to ninety-one pounds, -which Stockton paid.</p> <p>Chancellor Wythe, perceiving no cause for altering his decree, affirmed it, and adjudged and decreed, that the bill of review be dismissed with costs j — whereupon the complainant appealed.</p>

Duval filed a bill in the High Court of Chancery, stating, that he had become surety for Campbell, in some bonds to Croughton. That the plaintiff had requested the defendant to sue Campbell, *but never could prevail upon him to do so. That after Campbell’s death, the plaintiff solicited the defendant to take administration on his estate, and offered to be his security; but this also was declined. The bill, therefore, prays that the bonds may be delivered up.

Lewis brought an action of covenant in the Superior Court of Frederick county, (afterwards removed to the Superior Court of Berkeley county,) against Weldon, Eben Taylor, Griffin Taylor' and Jlbner Osburne, defendants.

Harper, Hardy 6p Co. were merchants, doing business in the town of Buchanan in the county of Botetourt. About the beginning of the year 1842, they failed in business, and by a deed dated the 14th of January 1842, they conveyed all their property, both social and individual, to William W. Boyd, in trust for the payment of their debts.

Edward Bolling, by his last will, after disposing of sundry lands and slaves among his four brothers, Robert, Thomas, John and Archibald, and after giving several other legacies, among which was one… Held: that it was not distributable among the next of kin. [Oldham v. Pickering,] 2 Salk. 464; [Oldison v. Pickering,] 3 Salk. 137.

Jordan and others, brought detinue against Murray, for some slaves. Plea, non detinet, and the act of limitations. Issue. Upon the trial of the cause, the jury found a special verdict, which stated, that John Armstead, in 1763, made e. parol gift of a slave, by the name of Nan, to William,Russell, (fatherofthefemale plaintiffs,)whohad married Sarah, the daughter of the said John Armstead, and mother of the plaintiffs.

<p>Upon a comity court’s overruling a motion for dissolution of au injunction, the parties cannot make the injunction perpetual, by consent, in order that an appeal may be taken ¡ but to authorize an appeal, the cause must he regularly proceeded in to a final decree.</p> <p>See in Norris v. Tomlins and Gray, 2 Munford, 686. another case in which an appeal could not he taken by eon-seat of parties. See also M‘Call, v. Peachy, 1 Call. 55. and Clark v. Connoy, 1 Munford, 160,</p>

The question in this case was, whether this Court, upon affirming a decree of the High Court of Chancery, pronounced on a motion upon a forthcoming bond taken on an execution issued upon a decree of that Court, ca.n give ten per cent, damages against the appellant for retarding the execution of the decree ?

In this case, (which was a bill of injunction, filed in the County Court of Buckingham,) on the defendant’s motion for ■dissolution, it was ordered and decreed, that the motion be overruled; and (“in order that an appeal might be taken” to the Superior Court of Chancery,) the injunction was “by consent of parties,” perpetuated. The chancellor reversed the decree, and directed the bill to be dismissed; whereupon the complainant appealed.

In 1835, Zaccheus Campbell and Sally his wife, and William W. Turner, filed their bill in the Circuit Superior Court of Caroline county, against John R. Turner as executor of Frances Turner, and the said John R. and Elizabeth his wife in their own right, and the administrator of Shelton Ragland, in which they charged: that Richard Turner deceased, the father of said Sally, William W. and Elizabeth, executed to the late Shelton Ragland a deed which was on its face absolute,…

This was an action of debt, brought in the circuit court of Amherst, by Boyd Miller assignee of Thomas Coleman against Christian and wife and Carter, upon a bond for 489 dollars, executed by Mrs. Christian while sole, and Carter. The defendants’ plea was payment, on which an issue was made up. There was a trial, and a verdict and judgement for the plaintiff. But, in the record sent to this court, it appeared that there wrere only eleven men impanneled and sworn upon the jury.

These five suits, which are appeals from the High Court of Chancery, are so interwoven with each other, as in truth to constitute different points in the same cause. The general history of which, as collected from the various bills and answers, is as follows: Robert Morris alledges, that, in 1783, overtures were made to him by the Farmers General of France, for a contract for tobacco.

<p>IN a suit in Chancery, in the County Court of Prince William, on behalf of John Maddox against Thomas Purcell, administrator, de bonis non, and John Purcell, WilHam, Purcell, James Purcell, George Purcell, Charles .Purcell, Elizabeth Purcell, and Sarah Purcell, children of William Purcell deceased, the plaintiff claimed the defendant Geoige Purcell’s share of the decedent’s estate, by purchase for a valuable consideration. The defendant, James Purcell, by his answer, set up a claim to the , , . . . 1 ’ same share, by virtue oí a similar bargain; contending that the plaintiff had ’fraudulently induced the said George to sell his share, when he was drunk, and for a very inadequate consideration : but that his own purJ *■ 1 chase was fairly made for a reasonable price. Th an-_ swer oí George Furcell supported that of James; and both insisted that, according to the‘contract between Maddox and George Purcell, either party had a right to recant within a certain time: which, he the said George & had offered to do ; but Maddox bad refused to release , „ turn irom the agreement. ..</p> <p>A copy was exhibited of a decree in Chancery, in a suit by Thomas Purcell against the said William Purcell’s “ representatives,”* by which a residue of the estate of * J the said decedent, remaining in the executor’s hands, to _ _ • . the amount oí 213/. loswas ordered to be equally dmded among Thomas Purcell, James Purcell, George Purcell, Elizabeth Purcell, and Sarah Purcell, who (it was said therein) were all the legatees having a right to the said w a ° residue; so that the share of each was 421. Í5s. It was stated in the same decree, that the said legatees had become the purchasers.of the said estate ; and James Purcell was ordered to pay to George the sum of 421. 15s for the purpose of making an equal division. The right of the plaintiff Maddox to the benefit of his bargain with George Purcell, appeared established by depositions.</p> <p>No process was served on the other defendants, who were stated, in the sheriff’s return, to be “ no inhabitants of his bailiwickneither was any order of publication entered against them. In what manner the cause was set for hearing is not set forth in the record. But oa the 6th of April, 1808, the County Court decreed, “that the plaintiff recover against the said defendant, James Purcell, the sum of 42Í. 15s. with interest from the 1st of January, 1803, till paid; and that the said defendant pay the costs, &c.” This decree was affirmed by the Supreme Court of Chancery for the Richmond district; whereupon the said James Purcell appealed to this Court.</p>

‘1 HIS was an action on the case in the Fredericksburg District court on behalf of Rickard Johnson and James Toung, merchants and partners, trading- under the firm and style of Richard Johnson id Company, against Isaac Davis, late Sheriff of Orange County, for misconduct in office, in refusing and neglecting to levy a writ of fieri facias, in favour of the plaintiffs, against a certain Benjamin Hyde, which lawfully came to his hands to be executed ; the plaintiff averring…

This was a proceeding by scire facias to enforce a forfeited recognizance, entered into by John A. Fuqua, Armistead Hamlett, and William A. Fuqua.

IN a suit in Cumberland county Court, between James Anderson, an infant, by Charles A len, his guardian, Peter Francisco, and Susanna, his wife, and Agnes Anderson, an infant, by William Anderson, her n.-xt iriend, plaintiffs and Thomas Anderson, executor of James Anderson, de- , ^ ' ceased, defendant, for a division of the estate of the said decedent among the several legatees, according to his will; and the plaintiffs having filed their bill, and the defendant his answer,…

Ann Puller filed a bill in the Fredericksburg Chancery Court, setting forth the following case: that she was the widow of John Puller deceased, who loft a will dated the 4th of March, 1818; in which there was this clause: “I give to my beloved wife Ann Puller, 500 acres of land including my present dwelling, and a negro woman named Jenny and her increase,” &c.: that the said Jenny had two children, Garrett and Icy, the youngest of whom was, at the date of the will, aged…

Jordan and others, broug'ht detinue against Murray, for some slaves. Plea, non detinet, and the act of limitations. Issue. Upon the trial' of the cause, the jury found a special verdict, which stated, that John Armstead, in 1763, made a parol gift of a slave, by the name of Nan, to William Russell, (father of the female plaintiffs,) who had married Sarah, the daughter of the said John Armstead, and mother of the plaintiffs.

Philip Thurmond and John Richeson exhibited a bill against Nelson Crawford and Daniel Shrader, in the county court of Amherst, in chancery, setting forth, that Shrader, a resident of Tennessee, recovered a judgement at law, in the same county court, against Thurmond and Richeson, for 993 dollars, with interest and costs: that, before the execution upon this judgement was delivered to the sheriff, Shrader having come to Virginia to collect the debt, a contract was made…

The question in this case was, whether this Court, upon affirming a decree of the High Court of Chancery, pronounced on a motion upon a forthcoming bond taken on an execution issued upon a decree of that Court, can give ten per cent, damages against the appellant for retarding the execution of the decree?

THOMAS PITTS, executor of Ralph Rowzee, de- , , , ceased, having brought an action or debt m the County Court of Westmoreland, and obtained a judgment against Reuben Tidwell, upon a bond for 34l. 10s. 11d., executed to the said Rowzee in his life time, a bill was filed on the chancery side of that Court, and injunction granted, to stay proceedings on the said judgment.

These five suits, which are appeals from the High Court of Chancery, are so interwoven with each other, as in truth to constitute different points in the same cause. The general history of which, as collected from the various bills - and answers, is as follows: Robert Morris alleges, that, in 1783, overtures were made to him by the Farmers General of France, for a contract for tobacco..

An appeal, taken by one of the defendants from a decree of the Superior Court of Chancery for the Richmond District, pronounced by the late Judge of that Court. Held: in the Clerk’s office, during the same month, the cause was set for hearing, on the motion of the plaintiffs by their counsel. In April, 1794, John Lewis filed a plea of the statute of limitations; but it does not appear to have been done with leave of the Court.

<p>Under the former provisions of the statute concerning executors’ bonds, 1 Rev. Code, ch. 104. § 21. the sureties of an ex’or are not responsible for the proceeds of land sold by him under a power in the testator’s will.</p> <p>Under the provisions of the same statute, an action cannot be maintained on an executor’s bond, at the relation of an assignee of a legatee of a decree for a legacy; such action can only be maintained at the relation of the person who has the legal right to the debt.</p> <p>In such an action, the declaration must aver that assets sufficient to pay the debt came to the ex’or’s hands, or the amount of assets that came to his hands, and the devastavit thereof; and if the declaration contain no such averment, it is bad on general demurrer; per Tucker, P.</p>

Replevin by Murray Caldwell if Co., against Pennington, for goods taken by him in distress for rent.

Tomlinson and others, brought a bill against Dillard -in the High Court of Chancery, stating, that the plaintiffs aro, some of them, the brothers and sisters, and the rest descendants of the brothers and sisters of Benjamin Tomlinson, deceased.

<p>i. Ejectment* —Arrest of Judgment—Var lance in Counts of Declaration.—After issue joined in ejectment on the title only, and a verdict for the plaintiff, for the land in one of the counts in the declaration mentioned, it is no ground for arrest of judgment, that the two counts laid demises of the same land from different persons. See Rev. Code, 1st vol. ch. 76, sect. 35, p. 112.</p> <p>a. Same—Variance in Account—Demurrer. — Quaere, would a demurrer to the declaration in this case have been sustained?'</p>

IN an action of ejectment, in the Superior Court of Frederick County, the declaration contained two counts ; the first of which laid the demise of the land in controversy, (viz. “ the land whereon Albion Throckmorton formerly lived containing 291 acres,”) as from .a certain John Holier; and the second laid the demise of the same land, as from Hannah H. Cooper.

THIS was an attachment in Chancery in the County Court of Prince Edward, on behalf of William White and Company against Thomas Gibson an aiwettf’defendunt, and Robert Gibson, a resident of that county, charged as fraudulently holding effects of the said absentee, sufficient to sat'sfy tbe claim of the plaintiffs, which was partly found-e(j on a bond for 51i. dated the 24th of May, 1803, and J partly on an open account of goods sold and delivered, * , &c. ; beginning July…

<p>The doctrine requiring awards to be mutual, is now exploded, in the sense in which it was formerly understood.</p> <p>Although the bond of submission states, that “ divers disputes have arisen,” and the arbitrators render an award for one matter only, yet the award will be good, unless it appear, that something else was in dispute between the parties.</p> <p>If the breach in a declaration is not sufficiently laid, and, therefore, would be bad on demurrer, it will, nevertheless, be cured by a verdict, if the necessary facts are stated, though imperfectly.</p> <p>Where a judgment of a County Court is reversed, and sent back by a Supe■rior Court for further proceedings, and new pleadings, and a second judgment are had in the County Court, and the cause again carried up to the Superior Court, by an appeal from the second judgment; upon an appeal to the Court of Appeals, that Court may affirm the frst judgment of the County Court, aud reverse all subsequent ones.</p>

This was an action for breach of covenant, brought by Brown against Carthrae in the county court of Rocking-ham.

Prior to the year 1801, James Dunlop, David Buchanan and Robert Pollock were merchants and partners, doing business in the towns of Petersburg and Manchester, and in the City of Richmond: in Manchester, under the name of Robert Pollock Sy Co. In that year they dissolved their partnership: and a new firm was formed by David Buchanan and Robert Sy Allan Pollock, under the name of Robert Sy Allan Pollock Sy Co. At the time of the dissolution of the first partnership, John Sy…

WILLIAM RANDOLPH, on the 4th of May, 1808, presented a bill to the Judge of the Superior Court of Chancery for the Richmond District, setting forth, that in December, 1806, he made a conditional sale of a negro boy, by the name of Horatio, to Isham Randolph, for 110/. to be paid, 200 dollars part thereof out of the said Ilham’s * 1 , . . then crop of tobacco, and the balance out of his ensuing crop ; but that it was expressly stipulated and agreed, that he should make no…

UPON an appeal from a decree of the Superior Court of Chancery for the Williamsburg District, by which a bill filed by Francis M. Boykin, fames Johnson, and Anne his wife, was dismissed with costs. Held: was, on the 1st of November, 1754, seised in fee simple oj the lands in dispute, and in order to enhance the value of his adjoining estate, then agreed to the erection of certain buildings thereon, for the public use of the County of .hie of Wight, as a Court-house and Jail.

This was au ejectment for 250 acres of laud, brought in the circuit court of Southampton, by B. Bryant and Dicey his wife, //. Held: all their interest, right and title in the premises. Upon this state of the case found by the verdict, the circuit court held that the law was for the defendant, and gave him judgement accordingly; from which the lessors of the plaintiff, Bryant and wife and others, appealed to this court.

Frazer, assignee of Goodwin, brought an action of debt on a note under seal, against Phelps, in the County Court of Pittsylvania. The defendant pleaded payment to the plaintiff. At the trial, the defendant offered to prove the hand-writing of Goodwin, (the obligee and assignor of the note,) to a paper purporting to be a receipt of part of the money, due by the said note.

White obtained a judgment in' the Superior Court of Nelson-county against Burch, affiiming a judgment of the County Court.

Tomlinson and others, brought a bill against Dillard in the High Court of Chancery, stating, that the plaintiffs are, some of them, the brothers and sisters, and the rest descendants of the brothers and sisters of Benjamin Tomlinson, *deceased.

This was ah appeal from the Superior Court of Prince William County. Robert Young brought an action of debt, as assignee of John Carter, against Edmund Brooke, on a promissory note for $5400, payable sixty days after date. The declaration states, that the said note was executed to Carter, and endorsed by the latter, by his attorney James Anderson, to the plaintiff.

Beaumarchais appealed from a decision of the Auditor of Public Accounts, to the High Court of Chancery.

UPON an appeal from a rejection, by the Superior Court of Chancery for the Richmond district, of a motion for leave to file a bill of review. The decree, which the appellant wished to have reviewed, was founded on a bill of injunction to stay proceedings on a judgment at law in his favour against the appellee.

In 1815, Joseph Towles, then of the county of Madison, Virginia, was the owner in fee of a tract of about 400 acres of land in that county, which he was desirous of selling; and Andrew Glassell, of the same county, was (or claimed to be) the owner in fee of a tract of 2000 acres of land lying on the waters of Deer creek, in the county of Henderson, Kentucky, which he claimed under a patent granted to James Mercer, dated the 14th December 1787, and which he was desirous of…

<p>J. B. by his will bequeathed his slaves to his widow and children, and directed, that if the remainder of his personal estate was not sufficient to pay his debts, his ex’ors should sell enough of his real estate to discharge them. The personal assets were administered by one of the ex’ors, W., who advanced largely to the estate, and there were other debts outstanding. The ex’ors then joined in the sale and conveyance of real estate, the proceeds of which sales the other ex’ors permitted to go into the hands of W., who was a man of fair character and apparently ample fortune. W. appropriated the proceeds of the sales to himself, and the creditors of the estate recovered judgment against the ex’ors, and levied upon and sold the slaves. W. died and his estate proved insolvent. Held.</p> <p>1. In the sale of the real estate the ex’ors acted as trustees, and as such were liable only for their respective receipts; unless guilty of fraud or gross neglect amounting to fraud.</p> <p>2. The sale made by the trustees, being necessary for the purposes of the trust, the proof of fraud should be distinct and conclusive to charge one trustee for the receipts of another.</p> <p>3. The other ex’ors are not responsible for the proceeds of the land received by W.</p> <p>4. The other ex’ors are not responsible for the failure of W. to apply the proceeds of the land in his hands to the discharge of the debts; on account of which failure, the slaves bequeathed specifically were levied upon and sold.</p> <p>5. W. is not responsible for this fund as ex’or, but as trustee, and his securities as ex’or, therefore, are not responsible for his waste of it.</p> <p>6. An execution having been levied upon slaves of the estate, they are sold with the assent of the ex’ors, at B., instead of the courthouse; and they sell for considerably less than their estimated value. But the sale is fairly made. Held. The ex’ors are not responsible for the difference between the price at which the slaves sold, and the estimated value of them at the time.</p> <p>7. After the death of W., his ex’or pays a judgment recovered against W. as ex’or of B. He then settles W.’s adrn’n account before the Probat Court; by which it appears that W. is a creditor of B.’s estate. His ex’or then sues the surviving ex’ors of B., for the balance of the judgment he had paid, and recovers judgment against them, which is satisfied by a sale of the slaves of the estate. Afterwards, upon a suit brought by B.’s children for a settlement of the adm’n accounts, it appears that when the account of W. is properly stated, instead of being a creditor he is a large debtor of B.’s estate. Held. There being no evidence of collusion on the part of the surviving ex’ors with the ex’or of W., by which his judgment was obtained, they are not liable for the amount of the judgment recovered against them and satisfied out of the slaves.</p> <p>8. W. having died within two years after the passage of the act of February 16th, 1825, requiring ex’ors’ accounts to be set-tied every two years, and forfeiting their commissions if the accounts are not, settled; commissions are to bo allowed him. '</p> <p>9. Ex’ors living more than two years after the passage of the act, and not settling their accounts, are not to bo allowed commissions.</p> <p>10. Trustees are not embraced in the act of February 16th, 1825; and do not forfeit their commissions by failing to set-tie their accounts.</p> <p>11. Co-ex’ors joining in the same executorial bond, are sureties for each other.</p>

THIS was an action of assumpsit in the Corporation Court of Fredericksburg, on behalf of Adam Darby, Sergeant of said Corporation, against the administrators of William Drummond, deceased ; the declaration charging the defendants, on the ground that their intestate “ ' was indebted, by simple contract, for work and labour, , , &c. to a certain John Blanton, who was taken upon a capias ad satisfaciendum, and discharged from custody, as an insolvent debtor, having subscribed…

Those were appeals from the Richmond Chancery Court. The following opinion will present so full a view of the case, that it is unneeessaiy to give any other report of it.

This was an appeal from a judgment of the District Court of Fredericksburg.

IN an action of debt, in the District Court of Prince Edward, on behalf of Daniel A. Allen, administrator of ’ ^an'lA Allen, sen., deceased, against Henry Rawlins and Henry Bell, the declaration charged that both the defendants 14 acknowledged themselves to be indebted” to the plaintiff’s intestate, and charged them throughout as if *key ha(I jointly executed the bond on which the action was founded.

UPON a writ of supersedeas to a judgment of the . . P Washmgton District Lourt, affirming a judgment ot the County Court of Wythe, upon a scire facias against Jesse Evans and John Evans, special bail for John Armstrong, at the suit of Archibald Freeland.

IN an action of debt in the Northumberland District Court, on behalf of Richard Bland Lee, administrator, with the will annexed, of Richard Lee, deceased, against John T. Carter, surviving obligor, in a bill penal executed by him and John James Maund, deceased, a common order was entered and confirmed, at Rules, in the clerk’s office, against the defendant, John T. Carter, and WilHam Forbes, the bail, for his appearance.

Beaumarchais appealed from a decision of the Auditor of Public Accounts, to the High Court of Chancery. Held: that imported goods were not within the act.

This was an appeal from the Superior Court of Chancery of Fredericksburg. The case was this: Head and Long having sundry suits between them, depending in the Superior Court of Law for Spottsylvania, agreed to refer all matters in dispute between them, in these suits to Briggs and Stevenson, whose award was to be made the judgment of the Court; and if they should disagree, the said arbitrators were to choose an umpire.

This was an appeal from a judgment of the District Court of Fredericksburg, affirming, with damages and costs, a judgment of the County Court of Spotsylvania, recovered by the appellee against the appellant. Robert Price, styling himself executor of Philip Claiborne, who was assignee of William Dandridge, Execuior of William Armistead, deceased, instituted an action of debt, suggesting a devastavit, in the County Court of Spotsylvania, against Alexander Spotswood.

UPON appeals from decrees of the Superior Court of rr . ^ r Chancery, for the Richmond District, pronounced the 15th day or June, 1808.

The appellees, in their character of administrators of Thomas Bell, deceased, brought an action of trespass in the District Court of Fredericksburg, against the appellant’s testator, in his life-time, as late High Sheriff of Orange County; and declared, “for that whereas,” G. U. Grasty, one of his deputies, under colour of an execution, in behalf of a certain John Allen, against the goods and chattels of a certain Zachariah Burnley, with force and arms, entered the…

This was an action of assumpsit brought by Breckenridge Sp Crawford against Pitman, in the Superior Court of Augusta county. On the trial the plaintiffs introduced the following paper with the endorsements upon it: Mr. William Craig and Matthew Blair will pay to Thomas Bagby the sum of one hundred and twenty-five dollars, on account of brick work done on the Institution for the education of the deaf, dumb and blind; and oblige yours, respectfully, October 12, 1840. Wm.

Henry Imboden was the tenant of George Geiger of a house in the town of Staunton. His tenancy ended on the 13th of April 1838, when under a notice to quit from Geiger he left the premises, being then indebted to Geiger 100 dollars for rent.

Hugh Paxton, late of the comity of Rockbridge, by his will directed his estate to be equally divided among his six children; of whom Margaret, the wife of Cornelius C. Baldwin, was one. The real estate consisted of two tracts, one containing about three hundred acres of land well improved, and upon which there was a valuable tavern house, the other tract contained about 80 acres of wood land of little value.

The executors of Jacob Rnffi filed their bill in the late Chancery Court at Staunton against Levi Morris, in which they charged that their testator had given to his widow a negro girl for the life of the widow; that she had married again, and her husband Christian Varner, had sold the girl to Wyatt Starke, who had removed with her to the county of Kanawha, and there sold her to Morris ; and they prayed that Morris might be compelled to give security for the return of the…

THIS was an action of debt, in the County Court of _ J Harrison, by Asher Lewis, assignee of Daniel Richmond, # , t against David Long.

On the trial of an action of ejectment in the Petersburg District Court, brought by William B. Giles and others, against Jeffery Aldridge and John H. Claiborne, to recover possession of a tract of 206 acres of land, lj'ing in Dinwiddie County, ‘the defendants offered in evidence a decree of the County Court of Amelia, between Mary Claiborne, (under whom the defendants claimed,) complainant, and John Tabb, (under whom the plaintiffs claimed,) defendant, together with the bill…

After this was done, there remained a vacant space on each side of the Bank buildings, on which they determined to erect fire-proof brick houses, for the greater security of the Banks, and to sell them out to individuals. Before the houses were completed, the Banks agreed with Michael B. Poitiaux, to sell him one of the tenements for the sum of $ 15500, payable at the end of 5 years with interest.

In 1333, Matthew White filed his bill in the Superior Court of Augusta county against Jacob Moore as an absent defendant, and James J. Moore as… Held: that the receipt relied upon by the defendants did not operate as a disherison by the father, or a release by the son ; nor was it conclusive evidence of a full advancement at the period of its date : but that it might be relied on as evidence of a full advancement at that time, unless rebutted and explained by other evidence.

The appellees, Boh and ten others, who had been the slaves of John Andrew Schwartz late of Nottoway county deceased, in his lifetime, preferred their petition to the county court of Nottoway, setting forth, that they had been emancipated by their late owner, by will duly made to that purpose, but no executor was named in the will, and it had not been proved and recorded, nor had any one as yet taken administration of the decedent’s estate; and that they were still held in…

In January 1848, George Geiger filed his bill in the Superior Court for Augusta county, against John Churchman as the executor of Walter II. Tapp, for the purpose of having a settlement of Churchmans accounts as executor, and obtaining satisfaction of two judgments which he had recovered against him, as the executor of Tapp.

Andrew Campbell and Rebecca, his wife, exhibited their bill in the County Court of Augusta, against John Campbell and Augustine Argenbright, praying for the convejance of a tract of land which they claimed by virtue of a verbal promise, in consideration of marriage, made by the said John Campbell, father of the complainant, Rebecca, before, and at the time of the marriage, and evidenced by writing afterwards; which land they charged, had been purchased by Argenbright, with…

This was an action of detinue, brought in the circuit court of Culpeper, by George 1. Thom against James and Peter Hansbrough executors of Peter Hansbrough the elder, late of Culpeper, for slaves.

Bv deed bearing date the 23d of April 1810, Joseph Vanmeter conveyed to David Vanmeter five several tracts of land lying in the comity of Hardy, in trust to secure to Jacob Vanmeter several large sums of money, and also to indemnify him as his surety : and on the 1st of March 1824, Joseph Vanmeter executed another deed in the nature of a mortgage, to Jacob Vanmeter, by which he subjected all his lands in the county of Hardy, without any other description of them, to secure…

This was an appeal from a judgment of the Superior Court of Henrico county, affirming a judgment of the Court of Hustings of the city of Richmond. The case was this.

Robert Latham, fm., brought trespass against RobertLatham, for breaking his close, containing thirty acres, treading and consuming his grass and cutting down his trees. Fleas, not guilty, and the act of limitations„ Issue.

Burns filed a bill in Chancery, in the County Court of BerMey, stating, that on the 13th of March, 1750, he obtained a warrant from the proprietor’s office for 400 acres of land, and paid the usual office fees.

UPON an appeal from a judgment of the District , ¶ TT T Court hokum at Haymarnet. The wiit in this cause was (in consequence of some misinformation) issued in covenant, \> hen it should have been assumpsit; and, after the return of the writ, a de* claration in covenant was filed, and a writ of inquiry awarded.

<p>Johnson, applied for a supersedeas to a judgment of the Superior Court of Chesterfield county, rendered against the appellant. In the petition, various errors were alledged in the original judgment. But it appeared by the record that a forthcoming bond had been taken, and M’Rae had confessed judgment upon it.</p>

This was a bill exhibited by Ligón against Jaclcson, in the county court of Prince Edward in chancery, for specific execution of articles of agreement between the parties, executed the 12th November 1822, whereby Ligón covenanted to sell to Jackson, a tract of land in that county, containing by estimation 686 acres, but the quantity was to be ascertained by actual survey: for which Jackson covenanted to pay Ligón 15 dollars per acre, in four equal instalments, the first on…

Overstreet, obtained an order from a Judge of this Court for a writ of supersedeas to a judgment of the District Court, within five years from the date of the judgment, which order ho lodged with the Clerk of this Court; who delivered him a supersedeas bond to have executed; blithe being unable to obtain security before the end of five years from the date of 1he judgment, the Clerk of this Court doubted, whether he could issue the writ of supersedeas, without further…

<p>An appeal cannot be taken from a Chancery Court, on the ground that the appellant has been improperly decreed to pay costs.</p>

In the year 1797, Glassford and TIenderson, obtained a judgment in the County Court against Hackett, as executor of Mickleburrough, upon a three months* replevy bond, dated the 11th of May, 1774. The bond was made payable to Glassford # Henderson, and the condition recites, that whereas the Deputy Sheriff had levied an execution, on the estate of Thilman, for 97Z. 3s. Id. including debt, costs, and Sheriff’s commissions.

James (Jalewood, brought ejectment against Burrus, for some lands; and upon the trial of the cause, the plaintiff filed a bill of exceptions, which states, that the plaintiff in support of his title, introduced a deed from the defendant Bvrrus and one Thompson, as executors of John Burrus, for 230 acres of land in Caroline county, on the south side of Polecat swamp, “ bounded by the lines of Philip Estes, the said James Gatewood, William Tinsley, and the above said Polecut…

THIS was an action for covenant broken, instituted by John II. Pope, administrator of John Pope, deceased, against Stephin Cooke, in the Superior Court of Loudoun County. The defendant pleaded covenants performed ; and a special plea, to which the plaintiffs demurred ; and upon argument, the demurrer was sustained, the special plea overruled, and the cause continued.

<p>This was an action of ejectment brought in Henrico Superior Court of Law, by Smith and others, by their guardian, against Carter and another, for a tract of land in Henrico county. On the trial of the issue, the plaintiffs proved that a certain Obadiah Smith died in the year 1765, seised in fee of the land in the declaration mentioned, leaving three sons, William, (his eldest and heir at law,) Samuel and John; and they produced the will of William, the heir at law, made and proved in North Carolina, and thence certified to the County Court of Henrico, where it was duly admitted to probate, and recorded; whereby the laud was devised to the plaintiffs. The defendants, on their part, produced the certificate of the probate of the last will and testament of the same Obadiah Smith, in Henrico Comity Court, in October, 1765. This certificate ivas duly authenticated, and it states that the will was proved by the oath of the witnesses thereto. It %vas admitted that the Henrico will-book of the year 1765, and for some time before and after, along with sundry other papers and records, were destroyed by the public enemy during the war of the revolution. And then the defendants offered parol evidence to prove the contents of Obadiah Smith’s will, mentioned in the certificate of probate, so far as the same respected the lands in controversy; and that that will contained a devise thereof to that testator’s son John, in fee simple, under whom the defendants claimed title. To the introduction of this parol evidence, the plaintiffs objected; but the Court over-ruled the objection, and admitted the evidence; and the plaintiffs excepted to the opinion. A verdict and judgment were rendered for the defendants. The plaintiffs appealed to this Court.</p>

THIS was an action for covenant broken, brought by the appellants against the appellee in the District Court Fredericksburg. The declaration set forth a covenant, hearing date the 3d of Marche 1803, sealed by Robert Dunbar; without mentioning that anu other person had ** • 9 sealediu The pleas were, “not guilty, and l( covenants j” but oyer was not prayed.

IN this case the action was indebitatis assumpsit, f®r aon-payment of an inland bill of exchange, against Dunbar. the acceptor. The bill was described in the declaration, as drawn the 21st of October, 1807, for 3f4< dollars and 56 cents, payable nine months after date.

Philip W. Claiborne, in May, 1771, obtained a judgment of King William County Court against Richard Gregory, for 471. with interest from the 18th of that month, *and the costs.

This was a suit in Chancery, brought in the County Court of Henrico, by Allen against Freeland.

THOMAS NORVELL brought an action of erect» ment in the Superior Court of law, for the County of Pittsylvania, against David Ross. The declaration was served the 16th of February, 1809. The defendant plea^ec^ the general issue, &c. on the 25th of September following, when, on the plaintiff’s motion, an order of u survey was made ; but whether it was executed or not, does not appear in the record.

*/9rmsfead moved against Taylor for money received by him as attorney for the plaintiff. The District Court gave judgment for the sum received, with 15 per cent, interest until paid. Prom which judgment, Taylor appealed to this Court.

<p>*/9rmsfead moved against Taylor for money received by him as attorney for the plaintiff. The District Court gave judgment for the sum received, with 15 per cent, interest until paid. Prom which judgment, Taylor appealed to this Court.</p>

James S. Arthur, George F. Hupp and Philip A. Machir, filed their bill in the Superior Court for the county of Shenandoah, in which they charged, that Arthur, on the 6th of February 1840, had executed a deed by which he conveyed sundry tracts of land and other property in trust to secure certain debts due to Hupp, Machir and others.

Richardson, executor of Richardson, brought an action on the case against Austin, and declared, That whereas Winston was indebted to the plaintiff's testator in the sum of ——, and offered to pay him in discharge of the said debt, a bond executed by Tmlay to Ewing, and by him assigned to Read, who assigned it to Austin, and he to the said Winston; but the same was refused by the testator; in consequence of which, there was afterwards a colloquium between the lesiaiav and the…

Proudfit filed a bill in the High Court of Chancery, stating, that Hunter was employed by Plane of London, to purchase grain in Virginia, and to draw bills on him for payment. That the plaintiff, knowing of Hunter’s authority, sold him 10,000 bushels of corn for 1,588/. sterling, in bills to be drawn by Hunter, and endorsed by Patten Dalrymple, who were also agents of Blanc.

<p>This was an appeal from the Fredericksburg Chancery Court, where Frances and Ann F. Thornton, infants, filed a bill against Francis Thornton, by their next friend. The plaintiffs were children of the said Francis Thornton, the defendant, and Jane Thornton, his wife, who was then dead. The subject of the suit was this: John A. Thornton died, leaving a will, in which there is the following clause: ii Item, I give, devise and bequeath to my brother-in-law Francis and my sister Jane Thornton all the rest and residue of my estate, real and personal, to them and their heirs forever, upon the terms and conditions following.” These conditions are not material to the present report. Jane Thornton died in the life-time of her husband Francis. The complainants, as children of the said Jane, claimed the moiety of the said estate, which, they said, belonged to their mother; contending that their parents were joint devisees of the estate devised to them; by John Jl. Thornton, and that by the law of Virginia, the interest of the said Jane, who died first, did not accrue to her husband, as the survivor, but descended to the complainants.</p> <p>Francis Thornton answered, asserting his right to the absolute estate, in fee simple, in the lands devised by John Jl. Thornton to him and his wife.</p> <p>The Chancellor decreed in favor of the defendant, and the complainants appealed to this Court.</p>

Burns filed a bill in Chancery, in the County Court of Berkeley, stating, that on the 13th of March, 1756, he obtained a warrant from the proprietor’s office for 400 acres of land, and paid the usual… Held: that the Chancellor could not alter the decree of this Court.

<p>Burns filed a bill in Chancery, in the County Court of Berkeley, stating, that on the 13th of March, 1756, he obtained a warrant from the proprietor’s office for 400 acres of land, and paid the usual office fees. That by virtue of the said warrant, Baylis, one of the proprietor’s surveyors, surveyed 214 acres, and returned a plat thereof to the office; for which survey and return, the plaintiff likewise paid the usual fees; and, in order to obtain a deed, was always ready and willing to pay the composition and other customary fees, which he actually offered to the proprietor about the month of May, 1770, and demanded a deed; but the same was refused. That Curry obtained a deed from the said proprietor’s office for 140 acres, *part of the said 214 acres, on the 20th of August, 1768; and had recovered a judgment in ejectment therefor against the plaintiff; who prays an injunction, and for general relief.</p> <p>The answer of Curry denies any knowledge of the matters charged in the bill, except the grant to himself, and the ejectment.</p> <p>A witness says, that about the year 1763, he purchased of Burns a survey, including that in dispute, for 400 acres, and that he resold it to him two years afterwards. That this was before Lord Fairfax advertised for his tenants to come in and settle, and receive their deeds. A second witness, sworn in May, 1790, says, that upwards of 20 years béfore, he saw Burns offer Martin money, at Lord Fairfax’s office, and ask him for a deed for his land; but the latter said it was too late. Two other depositions state, that, about the year 1768, Burns made a similar offer and request, and that he received the same answer. There are in the record, a copy of Burns’ survey, of 214 acres, dated the 13th of March, 1756; a copy of the warrant for 400'acres, likewise dated the 13th of March, 1756; a copy of Lord Fairfax’s deed to Curry, dated the 10th of September, 1770; and a copy of the Governor’s patent to Burns for the 214 acres, dated March 1st, 1788. The County Court perpetuated the injunction, and decreed a conveyance to the plaintiff. From which decree, the defendant appealed to the High Court of Chancery, where the same was affirmed; and, from the decree of affirmance, the defendant appealed to this Court, where both decrees were reversed, and the bill dismissed. 2 Wash. 121-6. Whereupon Burns filed a bill of review against Curry and Vanmetre, in the High Court of Chancery; which, reciting the substance of the former bill, adds, that it was drawn at first with blanks, and, through mistake, was afterwards filled up by his counsel, with the month of May, 1770, instead of 1767, or 1768 the *true" period; which was before Curry’s title accrued. That these discoveries were made since the determination of the former suit; and that Vanmetre was a pendente lite purchaser. The answers to the bill of review, refer to the proceedings in the former cause, and state that the defendants do not think it probable that the dates in the bill of injunction would have been inserted, by counsel, without the plaintiff’s consent; and that they do not admit the tender at the time spoken of by the plaintiff, or before Curry’s title accrued.</p> <p>A new witness says, that, about 1768, the plaintiff called at his house, and said he was on his way from Lord Fairfax’s office, where he had been to get his deed, which he had often applied for before. That he lives two miles from the plaintiff, but had never conversed with him, about it, since that time. Another new witness says, that in the spring of 1767, he was in company with the plaintiff, who informed him that he had been at Lord Fairfax’s office, and was refused his deed. That he met the plaintiff on his way home from the office, and .that the weather was excessive cold; which was the reason why he enquired where Burns had been. That he lives about five miles from the plaintiff, and has often conversed with him upon the subject. A third new witness says, that in March, 1767, the plaintiff called at his house, with a led horse, on his way to Lord Fairfax’s office, to get his deed. That he said he meant to take Ryan, (the second witness mentioned above in the original suit,) with him as witness. That he lives two miles from the plaintiff, but does not recollect to have conversed with him about it since. A fourth new witness says, that, about the year 1767, Ryan came to her father’s (the plaintiff’s) house to borrow a horse to bring down his mother, who lived above Lord Fairfax’s. That the plaintiff lent him a horse, and went with him, saying, that he would go to *Lord Fair-fax’s to get his deed. That he came back in about three days, and said he could not get it. That when her father set off, it was warm but when he returned it was cold and wet, and there was a deep snow. A fifth witness says he was the plaintiff’s attorney in the injunction, and is satisfied that the blanks in the bill were filled up, and the alterations made, with his knowledge and approbation. A sixth witness says, that after Lord Fairfax advertised for those who had surveys, to come and take their deeds, he met the plaintiff, and asked him whether he did not intend to go and clear out his land; who answered, that the land was poor, and that he must help poor people. Two other witnesses speak as to the appearance of the dates in the bill of injunction, that they seemed to be written with a different pen and ink, and that there were erasures in the bill, with the same kind of ink that the blanks were filled up with; which was blacker, than the ink the bill was in’ general written with.</p> <p>There is in the record of the bill of review, a copy of Lord Fairfax’s advertisement for tenants to come in before the 29th of September, 1766, pay their fees, and receive deeds under pain of forfeiting their rights.</p> <p>The High Court of Chancery reversed the decree entered there in conformity to the decree of the Court of Appeals; and, thereupon, Curry again appealed to this Court.</p> <p>The new record only exhibits the old case. The plaintiff’s charge as to the alteration of dates in his first bill is plainly founded on a mistake of the principle, which the Court declared ought to regulate these-cases in general; and of the date which governed this particular case. The opinion of the Court was not, that eleven years, or any other precise time, was the period of forfeiture, but merely, that eleven years, unaccompanied with circumstances, was too long: That the taking- advantage of the forfeiture *was the material act, which destroyed the right of the claimant under the former warrant: That an express appropriation by survey or otherwise was such an act; and, as the survey and appropriation in this case were ordered on the 20th of August, 1768, that that ought to be considered as the true period when the forfeiture was to be considered as having been taken advantage of. Under which point of view., it was evidently unimportant, whether the alteration in the dates of the former bill were actually made or not, although there is great reason to suppose the plaintiff is mistaken as to the fact; because the Court did not proceed upon those dates, but upon that of the survey. The true enquiry therefore, is, whether the new evidence varies the case? The copy of the advertisement, which declares the forfeiture, if not attended to; and the testimony of the witness who declares the intention of Burns to abandon, are favorable to the appellant: But the last evidence proves nothing new in favor of the appellee. For, there are such a contrariety and minuteness in it, that the effect is destroyed. Besides, there are four witnesses who state the tender not to have been made sooner than 1768, and only three, who make it to have been in 1767. But they all refer to Ryan; who says it was after Curry’s survey was directed. Besides, the new witnesses state nothing of their own knowledge; but merely the declarations made by the plaintiff himself, which are no evidence, and, therefore, the case is, substantially, the same, as it was before. But, if the new testimony was important, there is great reason, from the circumstances, to presume it must have been known to the plaintiff, before the former hearing ; because they were ail his own near neighbors, except one, who was his daughter; the suit was in his own County Court, and it-is as probable, that he who was interested should have recollected his conversations with some of them, as that each of them, without interest, would have distinctly remembered so many minute incidents, and separate conversations. The bill of review ought not to have been allowed by the Court of Chancery. 1st. Upon the doctrines of that Court, with regard to bills to review its own decrees. 2d. Upon the ground, that the Court of Chancery cannot review and reverse a decree of this Court. With respect to the first, it is a rule that the plaintiff cannot bring a bill of review and examine witnesses, in contradiction of what he has endeavored to establish before. [Bennet v. Bee,] 2 Atk. 531. But here the plaintiff offers now to establish a different date from that which he formerly contended for. Again, it is a rule, that if the new testimony goes to a matter which was in issue at the former hearing, a bill of review shall not be allowed upon that evidence. Hind’s Ch. Prac. 59; 4 Vin. Abr. 414, 409. In which last passage, it is expressly said, that “where a matter of fact was particularly in issue before the former hearing, though you have new proof of that matter, upon that you shall never have a bill of review.” But here, the date of the tender was in issue before, and the enquiry was directed to it expressly: Of course, the new testimony, going to the same point, will not support a bill of review. Besides, the new matter ought to be such as would of itself be sufficient to be the foundation of a decree. But, in the present case, the new matter would not of itself be considered as sufficient ground, whereon to afford relief. With respect to the second position, that the Court of Chancery cannot review a°nd reverse a decree of this Court, the truth of it must be obvious. For, the contrary doctrine involves this absurdity, that the inferior tribunal, whose judgments are subject to the control of this, may impeach and annul the judgments of this Court. On principle, therefore, the Court of Chancery cannot exercise such a power. It is true, that in Mitford’s Treat. 69, 3d Lond. ed. it is said, that the Court of Chancery, in Lngland, may review a decree of the House of Lords there; and in support of that opinion, he *cites [Barbón v. Searle,] 1 Vern. 416. But that case does not maintain the position; for the object of the bill there, was merely to enforce the discovery, in order that application might be made to the House of Lords; and the Chancellor only directed the defendant to answer, and ordered no further steps to be taken without leave of the Court. So that he did not decide that a bill of review would lie. Besides, the matter alleged there, was entirely substantive and new; it happened after the decree, and would of itself have supported an action at law; or an original bill in equity: T.o which last, it was actually assimilated in the argument. That authority, therefore, proves nothing against the principle contended for by us. But our position was expressly recognized and established by this Court in the case of White v. Atkinson, 2 Wash. 94; in which it was held, that the Chancellor could not alter the decree of this Court.</p> <p>The Chancellor may grant a' bill of review to a decree of this Court, whenever there is a new case made by the new testimony in the cause, as was the case in the present instance; and it ought to be so upon principle; for, it would be monstrous, if a man was to be precluded from his right, merely because he had not the benefit of testimony, which he knew nothing of, until after the decision of his cause. Such a case ought to be relieved; but, unless the Chancellor can do it, there will be a total failure of redress: for, this Court can institute no proceedings for the purpose ; and, therefore, the Chancery must: Which is not attended with the absurdity insisted on, upon the other side; because the decree of this Court is remitted to the Chancery and made the decree of that Court: So that, in fact, it is his own decree that he reverses.</p> <p>But, there is no occasion to resort to that distinction; because, here is a new case presented, and *the relief is asked upon other facts than those which were decided on by this Court. In which respect, it differs from White v. Atkinson; because, there, the error was in the body of the decree. The point, relative to the tender being made, was not enquired into, until it was thought important, upon the opinion of this Court; and, therefore, an opportunity, for the investigation, ought to be allowed. The authorities are in favor of the practice. Mitford states it so expressly ; and the case of Needier v. Kendal & Hallet, 4 Vin. Abr. 413, confirms his opinion. Upon the power of the Chancellor, then, to grant a bill of review in cases of this kind, in general, there can be no doubt: And, if so, it was property exercised in the present case; because, the intention here, is not to contradict the former case, as in 2 Atk. S31, but to support it; and Hinde and Viner do not oppugn the right, as the point was not regularly put in issue before.</p> <p>Then, upon the merits: Picket v. Dow-dell, [2 Wash. 106;] Johnson v. Buffington, [lb. 116;] and Curo' v. Burns, [lb. 121,] contain the general principles; but these, upon examination, will not be found to militate against us: for, if the survey is the true date, still the tender was before it; and, therefore, the appellee can derive no benefit therefrom. The new depositions fix it in 1767: and, it is no objection, that the witnesses only speak of the plaintiffs own declarations; because, there being no dispute depending at this time, there was no temptation to misrepresent. There was a plain alteration of the dates in the first bill; and the witness is mistaken as to the abandonment. The advertisement could give no right to Bord Fairfax; and so the Court has often decided. In short, there was a tender of the fees, &c. before the survey, and that, according to the opinion of the Court in all the cases, was sufficient. Of course, the decree of the Court of Chancery ought to be affirmed.</p> <p>In White v. Atkinson, there was not even an alteration in the decree of this Court, but a mere extension of it, to an object which did not appear to have been contemplated by this Court. The case from 4 Vin. proves nothing, as it was, according to the statement there, a mere dismission of a petition to examine witnesses in the House of Bords, and therefore, is not like this. Besides, by recurring to Finch’s Reports, it will be found to have been merely a bill of discovery, like the casein Vernon, and that the Chancellor decided nothing, as to his power to grant a bill of review. With respect to the inconveniences spoken of on the other side, it is true they may sometimes exist, but they will be partial; and therefore, ought not to outweigh the general inconvenience, on the other side of the Court of Chancery’s perpetuating disputes, by granting re-hearings of the same cause. It is a circumstance of some weight too, that no direct British case, allowing such a bill, has been produced, or recollected by Mitford, whose knowledge of the doctrines of a Court of Equity is so extensive.</p>

<p>An action ¿n behalf of at* apprentice, upon his indenture of íqw prenticeship, ought not to be brought m the name oa the overseers of the poord but in his own name.*</p>

UNDER the second section of the act “ to empower secuntes to recover damages m a summary way,(a) the! appellant made a motion in the Nottoway County Court against the appellee, for 22,183 pounds of inspected tobaceo, and two dollars and seventy-six and an half cents, “being one half of the amount of a judgment, rendered in the/Court of the said County, in favour of Archer Jcnefc, executor of Robert Jones, deceased, against the ¡said Conrad Webb, executor of Abner Osborne, on…

William Fisher brought debt in the County Court, against Noel, upon a bond, dated the 20th of April, 178!), and executed by Noel to Fisher, deputy Sheriff of John Upshaw, High Sheriff of the county of Essex; the condition of which was as follows: “Whereas the above bound Richard Noel hath been accepted, received and allowed to be deputy Sheriff, for and under the said John Upshaw in the upper precinct or St. Anne’s parish in the said county, from the commencement of this…

SEVERAL important point's were made in this case, which was argued by Williams, for the appellant, and iVirt, for the appellee t but the Court decided the cause on one point only.

In 1829, William Salyards sold to Thomas Bryan and John J. Salyards three fourths of a furnace and lands attached thereto in the county of Hardy,… Held: among other things, that Bryan was entitled to credit upon his bonds for the whole amount of Scott’s decree j and referred the account to a commissioner. The report of the commissioner having been returned, the Court made a decree dissolving the injunction for the balance reported to be due from Bryan for the purchase money.

The Halls brought detinue against Hairston for some slaves: and upon the trial of the cause, the parties agreed a case, which stated, that the slaves had been devised by Sarah Hall to her son Nathan Hall, father of the plaintiffs, for life, and at his death to her grand-children as her said son should see cause to divide the said slaves among them, but if her said son should trade, sell or dispose, hire or lend any part thereof any where, or to any person during his life, or…

EK an action of debt against William Walker and Clifton Garland, merchants, and partners, the declaration described the bond as executed by Walker, for himself and Garland. The plea of u ftayment” was put in by Gar-1 * J J land alone as surviving partner. Verdict and judgment ... , , , ,. * ior the plaintiff;- to whicu a writ oi supersedeas was awarded by a judge of this court. This is? almost the case of Shelton v. Pollock & Co. 1 EL and M. 423.

In February, 1798, Lee, as executor of John Lee, Clerk of Essex county, made a motion, in the County Court, against Peachy, as administrator of Samuel Peachy, Sheriff of the county, for some Clerk's tickets put in to the hands of the said Samuel Peachy’s deputy, in 1774. The motion was continued from Court to Court until November, 1798, when the defendant pleaded non assumpsit and the act of limitations; to which the plaintiff replied generally.

This was a motion to set aside an order of this Court, for dismissing an appeal by Thornton from a decree of the High Court of Chancery. The facts were, that Mr. Marshall had been retained as counsel for the appellant before his appointment to the office of Chief Justice;* but, had omitted to mark himself on the docket, or to inform the gentleman who was to finish his business. In consequence of which the appeal was dismissed, at April term 1801, for want of prosecution.

FROM the declaration in ejectment in this case, it appeared that Elizabeth Medley, the appellee, who was thc lessor of the plaintiff, claimed as tenant f-r life. While the appeal was pending: in this Court she died j and Batts, for the appellant, contended that, a» her title to the land expired at her death; the appeal ought to abate.

This was an action of assumpsit by Paul against Kelly, in the Superior Court of the county of Rocking-ham, upon the following draft: Mt. Crawford, Oct. 19, 1840. Mr. Jos. S. Carson, Treasurer of the Valley Turnpike Company. Sir,&emdash;Please pay the bearer, Thornton Paul, seven hundred and fifty dollars and eighty-two cents; and this shall be your receipt for the same. (Signed,) Patrick Kelly.

This was a suit brought in the Chancery Court of Williamsburg, (and afterwards removed to the Fredericksburg Chancery Court) by James Dabney, against John Minor, executor and trustee of George D. Spratt, deceased, and Thomas Healey, administrator of Frances Daniel, deceased.

<p>Ejectment—Appeal—Abatement,*—An appeal from a judgment in ejectment does not abate by the death of the lessor of the plaintiff; notwithstanding such lessor claimed the land for life only.</p> <p>See Thrustout on the demise of Turner v. Grey, 2Stra. 1056: Kinney v. Beverley, 1 H. and M. 531, and Mooberry v. Marye, 2Munf. 453.</p>

<p>1. A point on which a party requested the Court to instruct the jury is not to be regarded as a mere abstract question, concern. ing which the Court was not bound to give an opinion, if it appear from the pleadings that ssn'ch point might have applied to the case before the jury, and the contrary be not state»! gjjr See Pickett v. ¿Harris, 2 Wash, ¿.Vi. 172.</p> <p>2. Aith ugh the acknowledgment of a debt by one or more of the partners of a mercantil® JSrni, after the dissolution thereof is competent to do away the bar of the .Set of Limitations, in an aciion brought again*! the firm ; the cx'Stence of the deht bang first proved by •ther testimony or admitted by the pleadings; yet such acknowledgment is not proper evidence of the existence of the debt, so as to charge the other partner».</p>

Overstreet, obtained an order from a Judge of this Court for a writ of superse-deas to a judgment of the District Court, within five years from the date of the judgment, which order he lodged with the Clerk of this Court; who delivered him a super-sedeas bond to have executed; but he being unable to obtain security before the end of five years from the date of the judgment, the Clerk of this Court doubted, whether he could issue the writ of supersedeas, without further…

In the'year 1797, Glassford and Henderson, obtained a judgment in the County Court against Hackett, as executor of Mickleburrough, upon a three months’ replevy bond, dated the 11th of May, 1774. The bond was made payable to Glassford & Henderson, and the condition récites, that whereas the Deputy Sheriff had levied an execution, on the estate of Thilman, for 971. 3s. Id. including debt, costs, and Sheriff’s commissions.

On the 10th of August 1813, John Hogue and Hannah his wife executed a deed, by which, in consideration of the natural love and affection they bear to Betty Havely, the mother of the said Hannah, and the wife of Jacob Havely, they conveyed to Andreu) Russell, James White and Francis Smith, a lot in the town of Abingdon, which the said Russell, White and Smith covenanted to hold During the lifetime of Betty Havely, John H. Fulton purchased the interest of several of her…

James Gatewood, brought ejectment against Burrus, for some lands; and upon the trial of the cause, the plaintiff filed a bill of exceptions, which states, that the plaintiff in support of his title, introduced a deed from the defendant Burrus and one Thompson, as executors of John Burrus, for 230 acres of land in Caroline county, on the south side of Polecat swamp, “bounded by the lines of Philip Estes, the said James Gatewood, William Tinsley, and the above said Polecat…

Jesse Payne, by his last will, after some specific devises of land to his sons, devised as follows: “ I give and bequeath unto my beloved wife Frances Payne, during her natural life, the following eight negroes, Dick, Gerald, Hannah and her child, Sarah Truelove and her two children, Belt and Harry and Joe.” He afterwards gives seventeen other negroes to his two sons; and then devises as follows: “ All the rest of my estate I leave at the time of my death, I desire may be…

In a suit of Henderson against Jackson, in the circuit court of Harrison, judgement was rendered against Jackson in his lifetime, for 3957 dollars, with interest and costs; from which Jackson prayed an appeal, which was allowed him, “ upon his entering into bond with sufficient surety, in the penalty of 8000 dollars, conditioned as the law directs.” An appeal bond was forthwith executed by Jackson and his surety, in open court, in the condition whereof the judgement appealed…

In .Tammry 1844, Andy F. Hendricks gave a notice to Isaac 'Fuller and Benjamin Shoemaker, sureties of David Serjeant, late a constable of Russell county, that would on the 27th day of January 1844, move Thomas Dickinson, a justice of said county, for judgments agajnst them upon a number of claims, of which the notice contained a list, which had been placed' in the hands of Serjeant, then a constable of the county of Russell; and which claims the notice alleged Serjeant had…

Marlin brought indebitatus assumpsit against Cavan fy Kennedy, in the County Court, and declared for work and labour done and performed. Plea, non assumpsit, and issue. Upon trial of the cause, the defendant filed a bill of exceptions to the Court’s opinion, whereby it appeared, that Martin, a mariner, entered on board the ship Polly Nancy, on a voyage from Alexandria, in Virginia, to Rotterdam, and from Rotterdam to St. Ubes, and from St. Ubes, back again to Alexandria.

FRANCIS MARA, of Greenbrier Count)*-, who died ’n Tae year 1T91, bequeathed his property to be equally divided between his widow Hannah, and his daughter - ° Margaret; appointing the widow executrix, and William „ _ . . . , H. Cavendish executor. 1 homas i'leming intermarried with the widow, and claiming also as guardian of the daughter, filed a bill in the Superior Court of Chancery, for the Staunton District, against Cavendish, for an account _ ... and distribution;…

Hay and Wickham, for the appellees, (at the request of the Court, for the purpose of having certain questions settled on which there was a difference of opinion among the Judges,) moved to dismiss these two appeals, (from the Superior Court of Chancery for the Richmond District,) as having been improvidently awarded; the first by the Court of Appeals, and the second by one of its Judges out of Court; in both instances, after the vacation next after the term in which the…

Armstead moved against Taylor for money received by him as attorney for the plaintiff. The District Court gave judgment for the sum received, with 15 per cent, interest until paid. From which judgment, Taylor appealed to this Court. This being a summary remedy, introduced by a statute, the statute is to be strictly observed. But, the act does not give a motion on the bare receipt of the money without a refusal to pay.

In this case, suit was brought against Williams, as executor of Young, upon a promise made by the said Young in his life-time, and a verdict being rendered for the plaintiff, in the County Court, judgment was entered for him against the defendant, de bonis testatoris, (as appeared by a copy of the judgment, obtained by the appellee’s counsel, from the County Court, since the cause was brought into the Court of Appeals;) but the Clerk, in making out the record sent up to the…

Richardson, executor of Richardson, brought an action on the case against Austin, and declared, That whereas Winston was indebted to the plaintiff’s testator in the sum of-, and 'x’offe«:d to pay him in discharge of the said debt, a bond executed by Imlay to Rwing, and by him assigned to Read, who assigned it to Austin, and he to the said Winston; but the same was refused by the testal or; in consequence of which, there was after-wards a colloquium between the testator and…

<p>This was a motion by Currin, the commissioner of delinquent and forfeited lands for the county of Pulaski, for award of execution upon a bond executed by Daniel II. Hoge and James Hoge, for the purchase money of a tract of land sold by the commissioner as forfeited land.</p> <p>By the act of the 30th of March 1837, Sessions Acts 1836-7, the Judges of the Superior Courts of the Gounties lying west of the Blue Ridge mountain, were authorized to appoint a commissioner of forfeited and delinquent lands in each county, at the next fall term of the Court. And the commissioner was required to ascertain and report to the next term of the Court the quantity of delinquent and forfeited land in his county; designating particularly the number of tracts, and the quantity contained in each tract; and also its local situation and probable value; together with all the information which he might be enabled to procure in relation to the state of the title to said lands.</p> <p>The county of Pulaski was not formed until 1839, and Currin was appointed commissioner of delinquent and forfeited lands at the April term of the Superior Court for that county for 1840. At the next September term of the Court, Currin made a report, in which he said, that he had found but two tracts of forfeited and delinquent lands in the county, one containing 3000 acres, and the other containing 2000 acres, lying northeast from the courthouse. That these lands were surveyed on the 6th and 7th of June 1787, for Samuel M’Craw, and carried into grant so far as the commissioner had been able to discover; and that the title was still in M’Craw, or his representatives, if he was not living.</p> <p>The commissioner’s report was confirmed; and he was directed to make sale of the lands therein mentioned.</p> <p>At the September term of the Court for 1841, the commissioner reported that he had sold the land, when the tract of 3000 acres was bought by Daniel H. Hoge for 456 dollars, of which he had paid one fourth, or 114 dollars, and had executed his bond with James Hoge as his security for 342 dollars, the residue of the purchase money, bearing date the 4th day of March 1841, and payable twelve months after date. This report was. confirmed and ordered to be recorded.</p> <p>D. II. and J. Hoge, having refused to pay off their bond when it fell due, Currin gave them notice that he would move for an award of execution thereon at the April term of the Superior Court for the county of Ptilaski, for 1842. The defendants entered their appearanee to the motion, and moved the Court to quash the bond on the ground that Currin having been appointed commissioner of delinquent and forfeited lands for the county of Pulaski, in April 1840, the appointment and the acts of the commissioner were illegal and void. But the Court, being of opinion that the provision of the act of March 30th, 1837, directing the appointment of the commissioners at the next fall terms of the Superior Courts, was merely directory, and that therefore the appointment of a commissioner for the county of Pulaski at a period subsequent to the time mentioned in said act, was valid, refused to quash the bond.</p> <p>The defendants afterwards offered four special pleas. The first, third and fourth pleas were substantially the same; and alleged that the land was sold as patented to Samuel M’Craw, and forfeited in his name, when in fact he had assigned his survey to Zachariah Rowland, to whom the patent issued; and so M’Craw had no title to the land. The second plea alleged that Currin was not commissioner of forfeited and delinquent lands for the county of Pulaski at the time of the sale of the land and the execution of the bond, authorized by law to sell the land, and therefore no title to it was acquired by the defendants, and the consideration of the bond had therefore failed.</p> <p>The Court overruled the first, third and fourth pleas; and the plaintiff took issue on the second. On the trial of this issue the defendants moved the Court to instruct the jury that the appointment of the plaintiff as commissioner of forfeited and delinquent lands for the county of Pulaski, at the April term of the Court for 1840, was not made in pursuance of the Act of Assembiy, and did not confer upon him a valid authority to act as such commissioner. But the Court refused to give the instruction asked for by the defendants; and instructed the jury that the appointment was valid. To which opinion of the Court the defendants excepted; and the jury having found a verdict for the plaintiff, and the Court having given a judgment for the amount of the bond, with interest from the time it fell due, the defendants applied for and obtained a supersedeas to this Court.</p>

THESE- causes were argued together, December 16th, ign in the Reporter’s absence. The single point on # ^ 1 which the Court decided, was, whether it had jurisdic- . r . , . _ , . _ tion or the appeals in question. In both cases, the ac,aon was trespass quare clausum fregit, and the damages recoverecl Jess than one hundred dollars ; but it appeared 9 t r from the records, that the titles or bounds of lands were , , drawn in question.

la assumpsit brought by Brooke and Tutt against Lewis’s executors, the jury found a special verdict, which stated that In the year 1777, the defendant’s testator contracted with the plaintiffs, as public contractors for the building of a magazine, as stated in the account annexed to the verdict, which begins thus: “ Dr. Colonel Fielding Lewis, deceased, (on account of the Commonwealth of Virginia,) to Richard Brooke and James Tutt.” Then follows the items, which are charged…

M’Guire brought debt against Gadsby, in the.Corporation Court [of •Alexandria,] upon a note for $550; plea, nil debet, and issue.

This was an action by Joshua Lowe against Brine Miller, in the Superior Court of Monroe county, to recover the value of'a quantity of corn, which the plaintiff alleged belonged to him, and had been taken, and converted to his own úse, by the defendant. The declaration contained three counts.- The first and second were special, setting out the facts, the third was in trover.

Proudfit filed a bill ia the High Court of Chancery, stating, that Hunter was employed by Blane of London, to purchase grain in Virginia, and to draw bills on him for payment. That the plaintiff, knowing of Hunter’s authority, sold him 10,000 bushels of corn for 1,5881. sterling, in bills to be drawn by Hunter, and endorsed by Patten & Dalrymple, who were also agents of Blane.

In ejectment, brought by Herbert and wife against Wise and others, for a tract of land in Fairfax county; upon the trial of the cause, the defendants filed a bill of exceptions, stating, that the plaintiffs, in order to prove their title, gave in evidence a patent to George.

Gaines, as administrator of Minor, brought debt in the County Court, against Robinson and others, executors of Michael Robinson, upon a bond, given by the said Michael, dated the 2d day of February, 1768, and payable on or before the 1st of June, afterwards.

This was a proceeding by scire facias to enforce a forfeited recognizance entered into before James C. M’Farland, a justice of the peace for the county, of Kanawha, by Thomas Dulaney as principal, and Henry B. Saunders jr., as his security, each in the penalty of 500 dollars.

<p>Skipwith filed a bill in the Richmond Chancery Court, stating, that he lost at cards, in the year 1815, with Strother, about @700, at the Bell Tavern, in the City of Richmond: that for this sum, he executed his bond or note to the said Strother, who assigned it to Turpin: that the latter brought suit in the Superior Court of Powhatan, and obtained judgment against the complainant: that execution issued on the said judgment, and was in the hands of the sheriff, at the time of filing the bill; he therefore prayed that Strother and Turpin might be made defendants, to answer on oath the allegations of the said bill; and that the judgment aforesaid might be injoined, &c.</p> <p>The injunction was refused by the Chancellor, and awarded by a Judge of the Court of Appeals.</p> <p>' Turpin, in his answer, said that he had no knowledge of the consideration on which the bond was founded: that in June, 1816, he purchased the bond in question, without knowing, or having ever heard, that Strother had gamed with the complainant: that the respondent gave Strother a full and valuable consideration for the bond: that after’ the bond had been assigned to the respondent, the complainant expressed himself well pleased that the respondent held the bond; and said he would pay it when it became due, and often afterwards promised to pay the same, a part of which he did actually pay: that he is advised that a Court of Equity has no jurisdiction to grant relief in such a case, &c.</p> <p>Skipwith afterwards filed an amended bill, nearly to the same effect as the first.</p> <p>Strother answered, saying, that he won more than $ 140 of Skipwith: that he paid for Skipwith, at his request, $290 to a certain John Hawkins of Kentucky, and at the same time paid, at the request of Skipwith, $270 to a certain •—— Voss: that Skipwith gave the respondent his note for $700; which note was given for the $ 560, paid, as aforesaid, at the request of Skipwith, and also for the $ 140 won by the respondent of Skipwith.</p> <p>Turpin answered the amended bill, by referring to his first answer, and to the ansioer of Strother, and insisting on the facts therein contained.</p> <p>On a motion to dissolve, the Chancellor ordered that the injunction be dissolved; being of opinion that the complainant had a remedy at lav/, by motion, to vacate the judgment, if it was founded on a gaming consideration, or to quash any execution thereon, and order that none should thereafter issue.</p> <p>Skipwith appealed to this Court.</p>

William Fisher brought debt in the County Court,, against Noel, upon a bond, dated the 20th of April, 1789, and executed by Noel to Fisher, deputy Sheriff of John Upshaw, High Sheriff of the county of Essex; the condition of which was as follows: “Whereas the above bound Richard Noel hath been accepted, received and allowed to be deputy Sheriff, for and under the said John Upshaw in the upper precinct or St. Anne’s parish in.the said county, from the commencement of this…

By an act passed the 3d of January 1833, the General Assembly incorporated the Catawba Iron Works Company, for the manufacture of iron &c., in the county of Botetourt.

tílassford and Henderson brought assumpsit against Fitzhugh and wife, ex’rs. of Foote, and declared. 1. For goods, wares and merchandizes sold and delivered to Foote. 2. On a quantum valebat for the same. 3. For money paid and advanced for Foote. 4. For money had and received. Plea, non assumpsit, and non assumpsit within five years; issue.

The appeal in this case had abated at the March term last, by the death of the appellant, and now Hening moved for a scire facias to revive it in the name of his executor. He cited the case of Gibbs v. Perkin-son,(a) as in point. Hay, on the other side, opposed the motion ; on the ground that, if the appeal might be revived after a term had intervened, there would be no limitation.

The act of assembly, passed December 1794, jfor establishing The Mutual.

James Gordon, Walter Monteath, and William Robertson, styling themselves surviving partners of John Glasford, James Gordon, Walter Monteath, William Robertson, Neil Jameson, Adam Fleming and James Glasford, late merchants and partners acting under the firm and style of Adam Fleming, brought an action of debt on a bond in the Williamsburg District Court, against John Colgin, executor of John Brown, deceased.

In February, 1798, Eee, as executor of John Eee, Clerk of Essex county, made a motion, in the County Court, against Peachy, as administrator of Samuel Peachy, Sheriff of the county, for some Clerk’s tickets put into the hands of the said; Samuel Peachy’s deputy, in 1774. The motion was continued from Court to Court until November, 1798, when the defendant pleaded non assumpsit and the act of limitations ; to which the plaintiff replied generally.

Tliis was a motion made by the Auditor against the appellant, in the General Court.

This was a motion to set aside an order of this Court, for dismissing an appeal by Thornton from a decree of the High Court of Chancery. *The facts were, that Mr. Marshall had been retained as counsel for the appellant before his appointment to the office of Chief Justice; but, had omitted to mark himself on the docket, or to inform the gentleman who was to finish his business. In consequence of which the appeal was dismissed, at April term 1801, for want of prosecution.

William Watson brought .a bill in Chancery against Richard Jones and Littleberry Royal, executors of Richard Jones deceased, stating, that William Watson, the plaintiff’s father, devised a tract of land to the plaintiff, who was an infant. That Richard Jones, Edward Jones, and Daniel Jones, were appointed executors of the will; that Edioard is dead, and no account of his administration has been rendered. That the profits of the lands were considerable.

THE appellant, John Baker, exhibited his bill in the Superior Court of Chancery for the Staunton district against Henry W. Baker, who, and himself, were executors of Henry Baker, their father, deceased, and against the said Henry W. Baker and others, who, with himself, were devisees and legatees of the said decedent, claiming to be paid a compensation from his estate, for services performed for him in his trade of a butcher from November, 1788, to December, 1795; for which…

Jesse Payne, by his last will, after some specific devises of land to his sons, devised as follows: “I give and bequeath unto my beloved wife Erances Payne, during her natural life, the following eight negroes, Dick, Gerald, Hannah and her child, Sarah Truelove and her two children, Bett and Harry and Joe.” He after-wards gives seventeen other negroes to his two sons; and then devises as follows: “All the rest of my estate I leave at the time of my death, I desire may be…

On an appeal, taken by the defendants, from a decree of the Superior Court of Chancery for the Williamsburg District, pronounced in October, 1803. The appellees, Ann Efford and Thomas Shurley, (the complainants in the Court of Chancery,) were illegitimate children of Richard Rice and Judith Shurley, who, after the birth of those children, and about the year 1776, were married.

STEPHEN SAUNDERS was appearance bail for a certain William Murray, at the suit of Philip Gaines, in an action of covenant in the District Court holden at Washington Court-house.

UPON a writ of inquiry in an action of assumpsit, the plaintiff’s damages were assessed by a iury to 327 dollars and SO cents, with legal interest thereoh from the 1st or November, 1806, till paid, beside his costs 5 and judgment was entered thereupon.

This was an appeal from a decree of the High Court of Chancery. The hill states, that, on the 20th of November, 1749, William Davies, lor his father Jloberl Dames, entered with Thomas Lewis, Surveyor of Augusta county, for 300 acres of land between his father’s land and the widow Bell's. That on the 29th of August, 1753, Robert Davies sold the entry to J. Phillips; from whose son and heir, the plaintiff purchased it on the 23d of May, 1789.

Martin brought indebitatus assumpsit against Cavan & Kennedy, in the County Court, and declared for work and labour done and performed. Plea, non assumpsit, and issue. Upon trial of the cause, the defendant filed a bill of *exceptions to the Court’s opinion, whereby it appeared, that Martin, a mariner, entered on board the ship Polly & Nancy, on a voj'age from Alexandria, in Virginia, to Rotterdam, and from Rotterdam to St. Ubes, and from St. Ubes, back again to Alexandria.

IN this case, a decree of the late High Court of 7 ° Chancery, dismissing a bill of Review, was reversed 3 , , by this Court; the original decree was also reversed; and it was ordered that the injunction awarded the appellee, to stay proceedings on a judgment recorded against him by the appellant, be dissolved, and his bill dismissed with costs.

In this case, suit was brought against Williams, as executor of Young, upon a promise made by the said Young in his life-time, and a verdict being rendered for the plaintiff, in the Countj' Court, judgment was entered for him against the defendant, de bonis testatoris, (as appeared by a copy of the judgment, obtained by the appellee’s counsel, from the County Court, since the cause was brought into the Court of Appeals;) but the Clerk, in making out the record sent up to the…

THIS was an action of debt in the late District Conr~ holden at Prince Edward Court-house, in the name of 7ohn Johns and John Benning, (who sued for the benefit of John Benning,) against William~Merk1ith and Ben~ jamin Morris, on a bond, dated the 2dday of july, 1791, in the penalty of one thousand pounds, conditioned for the prosecution of an injunction in the High Cotirt of Chancery, to stay proceedings on a judgment obtained. by John Johns against Peter Mat,', and…

At a General Court, holden in November, 1799, a judgment was obtained by the Auditor of Public Accounts, on behalf of the Commonwealth, against John Verell, sheriff of Dinwiddle County, for a balance due from him of the taxes for the year 1798, together with damages and costs according to law.

THIS was a bill exhibited by the administrators and heirs of Benjamin Moseley, deceased, against Buck and Brander, merchants, and partners, to have a contract for sa*e °f 2,666“ acres of military land in the State of Kentucky, rescinded, on the ground of fraud, and the land reconveyed.

In assumpsit brought by Brooke and Tutt against Lewis’s executors, the jury found a special verdict, which stated that in the year 1777, the defendant’s testator contracted with the plaintiffs, as public contractors for the building of a magazine, as stated in the account annexed to the verdict, which begins thus: “Dr. Colonel Fielding Lewis, deceased, (on account of the Commonwealth of Virginia,) to Richard Brooke and James Tutt.” Then follows the items, which are charged…

<p>Contractor for State — Individual Liability.‡ — A man, contracting on behalf of the State, is not liable in his individual capacity.</p>

In the year 1798, Lyell, as assignee of Parish, brought debt against Robert Elliott, executor of Richard Elliott, upon a joint bond given by the said Richard Elliott, Thomas Butler, and William Walker, to Parish, on the 17th day of October, 1783, and assigned by Parish to the plaintiff. Plea, Payment, and issue.

M’Guire brought debt against Gadsby, in the Corporation Court [of Alexandria,] upon a note for $550; plea, nil debet, and issue.

On the 35th day of November 1844, Nesmith Sp wife sued out of the clerk’s office of the Circuit Superior Court of Greenbrier county.a writ of capias ad respondendum, in an action of debt, against Joel M’Pherson and John FI. Copeland, which was served upon them on the same day. At the March rules in 1845, the declaration was filed and the common order entered. And at the April rules, the office judgment was confirmed against both the defendants.

This was an appeal from the Lynchburg Chancery Court. Anthony filed his bill, setting forth the following case: that some-time in the year 1803, the complainant made a contract with Terrell for the purchase of a tract of laud, lying on both sides of the Cowhide branch of Staunton river, containing 666 acres, at the price of 1800/ that the complainant was then married to a daughter of Leftwich; and the latter, upon being informed of the said purchase, agreed that he would pay…

IN an action on the case against the appellee as a com-in on carrier, employed to bring ten hogsheads of tobacco by water from Tye River warehouse in Amherst county to the city of Richmond, for negligently ducking and , thereoy damaging sundry of said hogsheads; on the trial of the cause, the plaintiff’s counsel moved the Court to instruct the jury, “ that a common carrier is liable for all accidents to goods, entrusted to him for transportation except such as arise from the…

In ejectment, brought by Herbert and wife against Wise and others, fora tract of land in Fairfax county; upon the trial of the cause, the defendants filed a bill of exceptions, stating, that the plaintiffs, in order to prove their title, gave in evidence a patent to George Brent, dated in 1677, for 1143 acres of land on Hunting Creek; the will of George Brent, in 1694, by which he devised that land to his son George Brent, jun. who, by his will, in 1700, devised 400 acres…

Dugger and Foley, having each had seven hogsheads of tobacco in Westbrook warehouse, Petersburg, and the warehouse, with their tobacco in it, having been destroyed by fire, presented their respective claims against the commonwealth, for the value of their tobacco so destroyed, to the auditor of public accounts.

Gaines, as administrator of Minor, brought debt in the County Court, against Robinson and others, executors of Michael Robinson, upon a bond, given by the said Michael, dated the 2d day of February, 1768, and payable on or before the 1st of June, afterwards.

In December 1843,' Joseph Hanna filed his bill in the Superior Court of the county of Greenbrier, against James B. Wilson ajid David Watts, in which he charged that Wilson, by a certain writing duly executed, on the 5th of November 1838,. bound himself to pay to David Watts, the sum of 154 dollars 34 cents, and that Watts had assigned the same to the plaintiff, for value. That this debt was a part of the purchase money of a tract of land sold by Watts to Wilson.

A CONTRACT in writing, (without being sealed,) was made between John Mayo and Charles Purcell, as follows : “ Mr. Charles Purcell, sells to Col. Mayo his land purchased from Fortunatus Sydnor, lying on James River, bounded by the Westham road on the North, Daniel Hylton on the West, the river ón the South, and Francis Watkins on the East, supposed to contain 500 acres, at six pounds per acre, payable in twenty years ; interest being paid half yearly at 5 per cent, for the…

This was an appeal from a judgment of the District Court of Richmond, reversing an order of the County Court of Hanover, by which leave was given to the appellant to erect a water grist-mill.

Glassford and Henderson brought as-sumpsit against Fitzhugh and wife, ex’rs of Foote, and declared. 1. For goods, wares and merchandizes sold and delivered to Foote. 2. On a quantum valebat for the same. 3. For money paid and advanced for Foote. 4. For money had and received. Plea, non assumpsit, and non assumpsit within five years; issue.

An action of debt on a bond was brought by William Taylor and Thomas Cochrane trustees and executors of Thomas Miller, deceased, against Elisha Thatcher, Godlove Heiskell, and William Herndon, in the County Court of Spottsylvania. The declaration was in the usual form, demanding a debt of 2,000 dollars, and saying nothing about a condition to the bond. The defendants praying oyer, the writ and bond were spread on the record.

Assumpsit by Mayberry against Newell, in the circuit court of Botetourt.

This was an appeal from the High Court of Chancery, brought by Carter Harrison and Mary his wife, and by Anne and Martha Allen, against William Allen. The appeal is grounded on the following case. John Allen, by his will, dated in May, 1783, devised all his estate to his father William Allen the elder, and afterwards purchased a tract of land, called neck of land and Eobmson’s quarter in James City county.

William Watson brought a bill in Chancery against Richard Jones and Eittleberry Royal, executors of Richard Jones deceased, stating, that William Watson, the plaintiff’s father, devised a tract of land to the plaintiff, who was an infant. That Richard Jones, Edward Jones, and Daniel Jones, were appointed executors of the will; that Edward is dead, and no account of his administration has been rendered. That the profits of the lands were considerable.

This case was argued by Botts for the appellant, and for the appellee; but is so fully considered and discussed by the judges in their opinions, that any further statement is unnecessary.

Detinue for sundry chattels, by James and John Faulkner, executors of Jacob Faulkner deceased, against Sarah Faulkner, his widow, in the circuit court of Halifax. Plea, the general issue. Verdict and judgement for the plaintiffs.

AN action of debt on a bond was brought by William Fay hr and Thomas Cochrane trustees and executors of Thomas Miller, deceased, against Elisha Thatcher, God-love Heiskell, and William Herndon, in the Colmty Court of S ottsubania. The declaration was in the usual _ , form, demanding a debt of 2,000 dollars, and saying nothing about a condition to the bond. The defendants praying oyer, the writ and bond were spread on the rccord.

Philip Dold late of Augusta county, died in 1819, having by his last will and testament,—after devising and bequeathing a tract of land, four slaves and 2000 dollars, to his son Jesse Dold, four slaves and 1000 dollars to his daughter Catharine Lawrence, and three slaves and 1000 dollars to his daughter Nancy Morgan, directly and absolutely,—devised and bequeathed as follows : “ I give to my friends W. Miller and A. Stuart,” two parcels of landj three slaves by name, and 100…

In this case the Chancellor for the Richmond District, at a subsequent term, after the vacation in which he refused an appeal from his interlocutory decree between the same parties, (b) granted an appeal under the act of Assembly, (c) Williams moved to dismiss this appeal as improvidently granted, saying the Chancellor had no right to allow it after the term at which the decree was entered.

This was an appeal from a decree of the High Court of Chancery. The bill states, that, on the 20th of November, 1749, William Davies, for his father Robert Davies, entered with Thomas Dewis, Surveyor of Augusta county, for 300 acres of land between his father’s land and the widow Bell’s. That on the 29th of August, 1753, Robert Davies sold the entrjr to J. Phillips; from whose son and heir, the plaintiff purchased it on the 23d of May, 1789.

This was a supersedeas to a judgment of the District Court held at Hay-market, reversing a judgment of the County Court of Fairfax. Moore brought an action against Chapman in the County Court of Fairfax; the declaration charges an assault, battery, and false imprisonment of the plaintiff: by the defendant, on such a day, at the Parish of Fairfax, in the County of Fair-fax.

This was an action of debt brought in the Circuit Superior Court of Harrison county, by Gross, Myers 8f Moore, merchants of Philadelphia, against Aaron Criss,' a merchant in the county of Harrison. The action was founded on a promissory note, dated the 9th of July 1839, and payable at six months, for 347 dollars 53 cents, given by the defendant to the plaintiffs in Philadelphia, for goods there purchased of them. The defendant pleaded payment.

THIS case was argued by Bolts for the appellant, and for the appellee; but is so fully considered and discussed by the judges in their opinions, that any further statement is unnecessary.

On the 29th of February 1841, John and Abraham f&wsely filed their bill in the Circuit Superior Court of Harrison county, against Timothy Maxon, Hannah Williams, and William G. Williams, in which they charged that in 1838, they sold to Maxon a tract of one hundred acres of land, at the price of 300 dollars, of which 175 dollars was paid, and Maxon executed his bond for the balance, 125 dollars, to the complainant John, payable on the 1st of October 1839.

In ejectment brought by Watson against the Powells, the jury found'a special verdict, stating: That Levi Watson being on the day of anno domini 1776, seised in his demesne as of fee, in thirteen acres of land, being the premises in the declaration mentioned, and of no other visible property or estate, did, on the day and year aforesaid, duly make and publish his last will and testament in writing, the material parts of which are as follows. “I Levi Watson, have thought it…

<p>Assault and Battery — Time of Assault Must Be Alleged.* —In an action of assault and battery, after a general verdict lor tbe plaintiff, on the pleas of "not guilty,” and "son assault demesne,” Judgment ought not to be arrested on the ground that the time was left blank in the declaration.</p> <p>Same — Omission to Lay Damages.† — After verdict, the damages having been left blank in the declaration, the Court will inspect the writ and supply them from it.</p>

The Overtons brought debt against Ross, upon an arbitration bond, and declared for 6,000?. on a bond dated the 25th day of--, in the year 1784, and conditioned for the performance of an award, concerning the payment of the rent and putting some improvements on a tract of land, merchant-mill and fishery of the plaintiffs, which had been leased to Ross, so as the award was made ready to be delivered to the parties on or before the 15th day of June, thence next ensuing.

In the year 1798, Lyell, as assignee of Parish, brought debt against Robert Elliott, executor of Richard Elliott, upon a joint bond given,by the *said Richard Elliott, Thomas Butler, and William Walker, to Parish, on the 17th day of October, 1782, and assigned by Parish to the plaintiff. Plea, Payment, and issue.

The transcript of the record, in this case, not having been brought up within two terms after the appeal granted, the appel-lees’ counsel moved to dismiss the appeal; which was opposed by the counsel for the appellants, on the ground that, although he had used every exertion to obtain the necessary information from his client as to the causes which produced the delay in sending up the record, yet his remote situation had prevented him from acquiring the information sought,…

<p>The transcript of the record, in this case, not having been brought up within two terms after the appeal granted, the appel-lees’ counsel moved to dismiss the appeal; which was opposed by the counsel for the appellants, on the ground that, although he had used every exertion to obtain the necessary information from his client as to the causes which produced the delay in sending up the record, yet his remote situation had prevented him from acquiring the information sought, through the medium of the post-office.</p>

This was an action of ejectment brought by the James River and Kanawha Company against Philip *R. Thompson and James T. Teays, to recover the land on both banks of Cole river, on which the abutments of a bridge across that river were built by Thompson and Teays. The.

<p>1. The franchise as well as the property of the citizen may be taken for public uses, upon making just compensation therefor.</p> <p>2. An act directs the public engineer to lay off a road and sites for bridges thereon, and declares that upon the return of the plats thereof to the clerks’ offices of the County Courts in which the road located lies, the land shall be vested in the Commonwealth for the use of the road. Held : That on a compliance with the law, the title to the land on which the road is located, and the sites of the bridges are fixed, is vested in the Commonwealth; and that the Commonwealth or her grantee may maintain ejectment therefor against the former owner.</p>

After the decision of the cases of Ford’s Executrix v. Dishman,(a) and Moore’s Administrator v. Dawney, &c. (b) in the former of which it was held that the “quod cum,” or “whereas” in a declaration in trespass, which continues by way of recital to the end, is fatal after a general demurrer, *and in the latter, that the same error is fatal after a verdict, a similar exception was taken to the declaration in this cause, during the same term.

George Holloway and his sister Elizabeth wife of Nicholas Kinney, being entitled, by devise from an uncle, to a tract of 916 acres of land in Amherst, that is, each to a moiety, and holding the same as tenants in common, a parol contract was made between Kinney and Holloway, whereby Kinney agreed to sell his wife’s undivided moiety to Holloway ; and, thenceforth, Holloway, who had previously been in possession of the whole tract as one of the tenants in common, continued to…

FROM the bill, answers, and exhibits in this case, it appeared that Foreman (the plaintiff in equity) purchased of Andrezv Bowman three tracts of land adjoining each other, comprehended in several patents ; one for 100 acres, another for 129 acres, and a third for 16 acres ; also a sawmill, with á lot of land, whereon it stood, containing more than two acres; the whole including 248 acres, more or less, for the sum of 1,8/5/s, Pennsylvania currency, payable partly in…

John Mills, as heir and devisee of Robert Mills, filed a hill in the High Court of Chancery against Joseph Bell, as executor of David Bell, and the executors of Robert Mills, stating, that Robert Mills purchased of David Bell, in his life-time, two tracts of land, one of 210 acres, and the other of 100 acres, for the sum of 500/., of which 220 had been paid, 120/. were tendered at the time the same fell due, and the payments of the residue suspended, until a title to the…

A THREE months’ replevy bond was executed, March SSd, 1808, by Powell Williams, Arthur Horner, and James P. Cocks, to Jane Howard*!n the penal sum of 340/. 17s. 2d., with a condition that “whereastwo negroes, (naming them,) one yoke of oxen, six head of cattle, and five horses, have been distrained by Thomas Watkins, deputy Sheriff for Horatio Turpin, Sheriff of Powhatan county, to satisfy the sum of 162/. Os.

This was an appeal from a judgment of the District Court of Accomac, rendered in favour of the appellees, who were demand-ants in a writ of right, against… Held: that as the object of the law was to protect the issue in tail, so far as the deed went to defeat his estate, it was void, only; but was good, as it respected the tenant in tail.(g) Henry Scott, therefore, not having the seisin of the land in tail, was not author-ised to bar the issue by a writ of ad quod damnum.

A MARRIAGE being about to be Solemnized between William, Ball and Drusilla Singleton, two deeds were signed and sealed by them, both bearing date the 12ih of July, 1790; by the first of which, certain slaves, therein mentioned, (whereof she was then possessed as her own v r property,) and their increase, were conveyed to Samuel P. • . , . „ Minzies, in trust, for the use of said Drusilla until the • said marriage, afterwards to the use of the said William, Ball during his…

This was an appeal from the Fredericksburg Chancery Court. The points in controversy are fully stated in the following opinions. The case was argued in this Court, by Wickham, for the appellant; no counsel, for the appellee.

In 1833, Charles L. Davis and others, heirs at law of Charles Davis deceased, brought a writ of right in the Circuit Superior Court of Kanawha county, against Mary Teays, to recover a tract of nine hundred and fifty acres of land lying on Cole river. The tenant appeared and disclaimed title to all but three hundred and seventy-five acres. As to that the pleadings were in the ^0™ Presci'fi;)e(f by the Act of Assembly, and the mise was joined on the mere right.

Nelson Jlnderson, brought a suit in the High Court of Chancery, against various persons having mortgages from Richard Jlnderson, upon lands, slaves, and personal property.

7'TIIS appeal was from a judgment of the district Court )f Charlottesville, according to a verdict, in favour of , r ri . _ , John… Held: as aforesaid, by and under the said Craig, were not sufficient, in law, to work an actual disseisin of the true owner of lands, in spite of such true owner ¡ and that, therefore, if it should appear to the jury, on further testimony, that the said fames Gardner was, at the time of executing the said will, the true owner of the said…

This was an appeal from the Superior Court of Law for Norfolk county. John Biddle, administrator de bonis non of Thomas Woodhouse, deceased, brought an action of debt against Dykes 8?

.CATHARINE FLOOD FTC ALL, as one of the W- , o tecs and devisees, sister and heir at law of the other devisee and legatee, and now sole heiress at law of Doctor Nicholas Flood, deceased, filed her bill in the late high Court of Chancery against William Peachy, Le Roy Peachy, and Elizabeth Flood,, administrators, with the will annexed, of the said decedent; for an account of their complaining of ex parte settlements, before the Cpurt of’ Richmond county, (which granted the…

On the 5th day of July, 1802, John Vance exhibited to the Judge of the Superior Court of Chancer}', holden at Staunton, a bill against Francis Walker, stating, in substance, that a number of years ago a certain John Huston settled upon a tract of land lying in the County of Washington, included within the limits of a grant made to Dr. Thomas Walker, generally denominated the “Wolfhill tract;” that the said Huston settled upon the said land on the faith of proposals then…

This was an appeal from the High Court of Chancery, brought by Carter Harrison and Mary his wife, and by Anne and Martha Allen, against William Allen. The appeal is grounded on the following case. John Allen, by his will, dated in May, 1783, devised all his estate to his father William Allen the elder, and afterwards purchased a tract of land, called neck of land and Robinson’s quarter in James City county.

Mary Yerby and William Yerby, children of George Yerby, filed a bill in the High Court of' Chancery against the administrator and devisees of the said George Yerhy¿ stating, that the said George Yerby, in May, 1790, being a widower with six children, intermarried with Elizabeth Rust, by whom he had issue the plaintiffs. That he had promised before his second marriage, that his children by his last wife should be as well provided for as those by the first.

On the 23d of December 1790, a patent was issued from the Commonwealth of Virginia to Matthew Ralston, then and until his death living out of the State of Virginia, for five hundred and sixty-one acres of land, in the county of Botetourt.

Ill ejectment brought by Ilill against Burrow, for a tract of land, the jury found a special verdict, stating, that Richard Hill made his will on the 3d of October, 1774, whereby he devised the lands in the declaration mentioned, as follows: I give and devise to my soil Thomas Hill, all my lands on the north side of Nottoway river, in Sussex county, to him, liis heirs and assigns forever, as also my lands in Brunswick county, to him and his heirs forever; but in case my son,…

This was an action of debt brought in the Superior Court of Pocahontas county in the name of the Governor of the Common wealtli of Virginia, at the relation of John J. Clarke, against James K. Elliott, Paul M’Neale and J. W. Matthews, upon the official bond of Elliott as a constable of the county of Pocahontas. The process not having been served upon Elliott, the suit was prosecuted against the other parties his sureties in the bond.

A bill was exhibited in the superiour court of chancery of Staunton before the commencement of the revised statute of 1819, concerning attachments and suits against absent defendants, by Blackburn against James Kelso, and John, Hugh, Elizabeth and Mary Kelso, sons and daughters of James, setting forth, That James Kelso, the father, was indebted to him 420 dollars by bond, and about 57 dol- • lars on open account: That the debtor was, at the time the debts were contracted, a…

In ejectment brought by Watson against the Powells, the jury found a special verdict, stating: That Levi Watson being on the day of anno domini 1776, seised in his demesne as of fee, in thirteen… Held: that the word estate might be taken from the preamble, or other parts of the will, and united to the devise, so as to convey a fee.

In ejectment brought by John Tate against Debdul Tally, for a tract- of land in Hanover county, the parties agreed a case, which stated, that Robert Tale being seised of the lands in the declaration mentioned, made his last, will on the 11th of May, in the year 1777, whereby he devised the said lands in the words following: “ I will and bequeath to my son Jesse Tate, all the land I hold on the south, and east side of the above mentioned road, bounded on the south side by…

The Overtoils brought debt against Ross, upon an arbitration bond, and declared for 6,0001. on a bond dated the 25th day of-, in the year 1784, and conditioned for the performance of an award, concerning the payment of the rent and putting some improvements on a tract of land, merchant mill and fishery of the plaintiffs, which had been leased to Ross, so as the award was made ready to be delivered to the parties on or before the 15th day of June, thence next ensuing.

This was a writ of error to a judgment of the District Court of Fredericksburg, rendered in favour of the defendant in error, who was the demandant in that court in a writ of right. *Ware Dong sued out a writ of praecipe quod reddat, against Martha Turberville, to recover a tract of land, lying in the county of Caroline.

<p>1. If a slave be sold, upon condition that the buyer, not liking, may return him in a given time" and, while in the buyers possession, but not thro' his neglect, he be as value; the buyer may suse to keep Jiim, and is able for the loss, unless he expressly agreed to be so liable. But «he buyer is responsible, without such i'or ^ordinary fsfitheMed to take such care of the slave as ¡my mo" prudence ofd governing foaeems.</p>

In ejectment brought by Duval and Younghusband, against Bibb, for a tract of land, the jury found a verdict for the plaintiffs subject to the opinion of the Court on a case which stated, that Bibb, by deed dated the r3th of December, 1788, and recorded on the 16th of the same month, conveyed the lands to Graves. That Bibb was, at that time, in actual possession, and had been so for upwards of twenty years.

<p>IN debt on a bond, in behalf of Thomas Bennett against . ^ W¿Ufa7n Nelson^ and Martha, his wife, late Martha Wilkinson, administratrix of Willis Wilkinson, deceased, the defendants pleaded, “ that all and singular the goods and chattels of the said Willis Wilkinson, which have come to their hands to be administered, have been by them duly -i apd actually administered, to the amount of 1,724/. £$., in the following manner, to wit: in discharge of a judgmentin favour of Matthew Maben, of 90/. is. lOd.; in Paymeni of taxes to Zacliariah MiClenny, to the amount 0f 9/. j 3^. . jn payment of taxes and Clerks’ Tickets 1 ' to Stephen Wright, to the amount of 30/.; in payment of a debt to Louisa Everett of 300/, due from the intestate on a guardian’s account j in payment of taxes to Stephen Wright, to the amount of 1 Si. 6s. 6d.; and to 1,279/. 3s. 2d. retained on a bond due from Willis Wilkinson to Thomas Everett, of whom Martha Nelson, wife of said William Nelson, is administratrix : and the said William Nelson, and Martha, his wife, administratrix as aforesaid of Wiltis Wilkinson, have no goods or chattels, which belonged to the said Willis Wilkinson, at the time of his death, in tgejr hands, to be administered : nor had, on the day of * 7 • 7 J suing out of the writ aforesaid, nor ever after, except the goods and chattels so as afpresaid by them actually administered ; and this they are ready to verify.’1</p> <p>To this’ plea the plaintiff replied, M that, by any thing aheged aboye by the said William Nelson, and Martha, his wife, his wife in pleading, he ought not to be barred . . . , from naving his action against them: because, he says. that the bond set out in the plea, as having been executed by the defendants’ intestate to Thomas Everett, and of which the defendants claim, by right of retainer, the sum of 1,279/. Sí. 2d., was not a fair and bona fide bond for legal consideration, but was without consideration, and fraudulent; and this he is ready to verify : wherefore he prays judgment, and that his said debt, together with his damages, by reason of detaining the same, may be adjudged to him,” &c.</p> <p>but a jury was empanneled, who “ being elected, tried, and sworn* the truth to speak upon the issue joinedbrought in á verdict in these words : “ We, of the jury, find for the plaintiff the debt in the declaration mentioned, and one penny damages. We also find there are assets in the hands of the defendants.”</p> <p>Judgment was entered accordingly, for 11,462 dollars, the debt aforesaid, &c. to be discharged by the payment of 5,731 dollars, with interest from the 3d of August, 1802, &c. “ And the plaintiff may have execution on the judgment aforesaid, for the sum of 1,279/. 3s. 2d., the sum retained in the hands of the defendants to discharge the bond said to be due a certain Thomas Everett, and for the payment of which the said sum was retained by the defendants : and further; execution may issue, when assets shall come to the hands of the defendants to be administered, for the balance of the debt and costs.”</p> <p>From this judgment the defendants appealed to this Court.</p> <p>3. That no issue was joined in the cause¿/</p> <p>2. That the verdict was defective; not finding the amount of the assets. (a)</p> <p>I admit there ought aíways to be enough in the verdict to settle the point in controversy : but this has been virtually and effectually done» The dispute does not appear to have been about the quantum of assets; but whether the administratrix had a right to retain to satisfy a bond which the plaintiff replies was fraudulent. The authority in 2 Wash, does not touch the point. In this verdict, the jury, in finding £t assets,” must be understood as finding ££ assets to the amount of l,279l. 3s. 2d.n that being the only sum in controversy between the parties.</p> <p>The Court had the right to mould the verdict into proper form according to the right of the case; a practice arising from the circumstance that verdicts were originally ore tenus.</p> <p>The replication contains no negative to the plea, but introducás new matter altogether : the jury were sworn “ to try an issue, though none had ever beenjoined.</p> <p>Judge Co alter. Is not the neglecting to join issue a default of your client ? and can he take advantage of it ?</p> <p>Call. There must be some issue joined ; either material or immaterial. According to the case of Baird £s? Co. v. Mattox, 1 Call, 257"., the defendant could not take advantage of an immaterial issue tendered by himself. But he may, if there be no issue.</p> <p>In the case of Booth v. Armstrong, the intendment that the assets were more than sufficient to satisfy the plaintiff’s claim, was stronger than in this case; indeed, almost a necessary intendment: but the Court said it was not to be supplied by intendment.* The verdict here is not precise enough. If the Court had a right to mould it; they have not done so ; and, having had it recorded in its defective state, cannot nozo alter it: as this Court decided in Vaughan v. Freeland, 2 H. & M. 477.</p>

In September 1844, Jeremiah, John II. and Benjamin Warden, filed their bill in the Superior Court for the county of Scott, in which they stated: that Richard Smith, formerly of England, on the 20th day of January 1795, made an entry of a large tract of land then in the county of Russell, now in the county of Scott.

<p>Specific Performance — Bill by Subpurchaser for — Parties.* — If a derivative purchaser, by assignment of a title bond, üle his bill against the vendor for a specific conveyance, the first purchaser or his representatives ought to be made parties.</p> <p>.Purchaser with Notice — Suit against — Denial of Notice —Sufficiency.-†—In a suit against a person alleged to be a purchaser with notice, it is not sufficient for the defendant in his answer to say that he had no notice of a prior equity at the time of the pur•chase. It must appear whether he had obtained a conveyance before he received notice of the plaintiff's claims.</p>

These were two appeals from the Superior Court of Law for Caroline county. Held: in both cases, that he was incompetent, and excluded his evidence. To this

AN agreement, under seal, was entered into, the 26th of August, 1801, between Gavin Lawson and Carter Beverley, witnessing, that the said Lawson had on that dáy bargained and sold, and did thereby bargain and sell, unto the said Beverley, all his tract of land lying and being in .the county of Culpepper, together with thé buddings of every kind, stock of cattle, horses, hogs, plantation implements, and every other thing thereto appertaining ; together with his adjoining…

In ejectment for a lot of land in the town of Alexandria, brought by Elizabeth Copper, late Elizabeth Arrell, daughter of Richard Arrell, deceased, and others, against Archibald M’Lean; the jury found a special verdict, which stated: That John Muir and Harry Piper, two of the trustees for the town of Alexandria, being seised as the law requires, conveyed to James M’Leod, in fee.

This was an action on the case, brought in the circuit ■court of Dihwiddie (whence it was removed by consent to ¡the circuit court of Henrico) by Stolces Sf Smith, merchant ■millers and partners, against The trustees of the Upper'Appomatox company, (a company incorporated by law for improving the navigation of the river Appomatox) for unlawfully diverting the water of the river from the plaintiffs’ mills thereon situated. There were two counts in the declaration.

<p>Order — Acceptance ot — Failure of Consideration.* — A general acceptance of an order hinds the acceptor to the payee by whom the same was taken, bona fide, and for a valuable consideration paid by him; notwithstanding the consideration, which induced the acceptance, afterwards fails, without any fault on the part of the payee.</p>

Previous to the year 1814, Samuel M’Ginnis obtained from the Commonwealth a patent for three hundred and fifty acres of land lying on Four Pole creek in the county of Cabell. This land lay in a narrow strip from north to south. In 1814, ho sold and conveyed to Cardwell sixty acres of this land on the south end of the tract; leaving, as was supposed, about three hundred acres.

John Mills, as heir and devisee of Robert Mills, filed a bill in the High Court of Chancery against Joseph Bell, as executor of David Bell, and the executors of Robert Mills, stating, that Robert Mills purchased of David Bell, in his life-time, two tracts of land, one of 210 acres, and the other of 100 acres, for the sum of 5001., of which 220 had been paid, 1201. were tendered at the time the same fell due, and the payments of the residue suspended, until a title to the…

On cross appeals from a decree of the Superior Court of Chancery for the Richmond District, pronounced by the late Judge of that Court.

Cart'd, Kosters Co. brought indebitatus assumpsit against Murray Co. and declared for money had and received to the plaintiffs’ use. Pleas, non assumpsit, and the act of limitations. Replication, that the plaintiffs were out of the State. Issue.

In 1836, the Louisa Railroad Company moved the County Court of Hanover to appoint commissioners to assess the damages which would be sustained by Lucy Trevilian, by the passage of their road through her land. The commissioners were appointed, and they made a report, which, on the motion of Mrs. Trevilian, was quashed by the Court for uncertainty therein; and other commissioners were appointed.

In 1837, the County Court of Chesterfield, on the motion of the Richmond and Petersburg Railroad Company, appointed commissioners to assess the damages which would be sustained by William Hancock by the passage of their road through his land. These commissioners subsequently made a report to the Court; and the Railroad Company having moved the Court to affirm the report, the Court overruled the motion, and disaffirmed it.

Nelson Anderson, brought a suit in the High Court of Chancery, against various persons having mortgages from Richard Anderson, upon lands, slaves, and personal property.

<p>1. A slave claiming a right to freedom, is not a necessary or proper party in a controversy between third persons involving the question of his right to freedom.</p> <p>2. Where a commissioner to whom accounts have been referred by an interlocutory decree, for settlement, gives notice to the parties by publication in a newspaper, of the time and place of his acting upon the subject, an exception by a party for want of personal notice, where that was practicable, ought not to be entertained, unless he shews by his own affidavit or otherwise, that he had no such information of the contemplated proceedings of the commissioner as would have enabled him to attend.</p> <p>3. In taking an account, the commissioner may take the depositions of witnesses to enable him to act upon the subject, under his general notice; and a special notice is not necessary.</p> <p>4. Where an interlocutory decree merely confirms generally, a report containing alternate and conflicting statements, it must be understood that the Court has reserved to itself the power of selecting by its future decree between such statements, and decreeing accordingly.</p> <p>5. A claim of a creditor not reported upon by the commissioner, may be directed to be considered as a claim stated in the report. .And it will be open to all just exceptions.</p> <p>6. The evidence of a witness given in answer to leading questions ought not on that ground to be suppressed, otherwise than by an order of the Court made before the hearing of the cause, on motion or petition for that purpose, and founded on an exception endorsed upon the deposition within a reasonable time from the ' return thereof; and founded moreover upon an objection taken at the time of the examination of the witness, if the party seeking to exclude the evidence, his agent or attorney was then present.</p> <p>7. When the real estate of a testator is necessary for the payment of his debts, it is not improper to direct an account of the rents and profits from his death, for the purpose of ascertaining what rents and profits had accrued from that period, and by whom they had been received; in order to enable the Court to decide by its future decree, what persons, if any, were accountable therefor.</p>

Colville S¡' Co. obtained writs of sequestration from the High Court of Chancery against Ross, in order to enforce performance of a decree. Ross offered to appeal to this Court; which the Court of Chancery allowed.

Thornton, as trustee for the estate of Joseph Robinson, brought a bill in Chancery, against Corbin, stating; 'that Benjamin Robinson, the elder, on the 10th of February, 1757, conveyed 450 acres of land, including a mill, in trust, as to the mill, for himself, and wife, who is since dead, for their lives; and from and after the death of the survivor, in trust, as to a moiety of the mill, &c. for Joseph Robinson, in fee, and, as to the other moiety and the lands, in trust for…

Mary Yerby and William Yerby, children of George Yerby, filed a bill in the High Court of Chancery against the administrator and devisees of the said George Yerby, stating, that the said George Yerby, in May, 1790, being a widower with six children, intermarried with Elizabeth Rust, by whom he had issue the plaintiffs. That he had promised before his second marriage, that his children by his last wife should be as well provided for as those by the first.

This was a bill filed by Dickinson 6f Co. in the Superior Court of Henry county, to subject the profits of certain trust property to the discharge of a judgment obtained by them against William Perkins.

Iu 1832, Nathan J. Barnett and George Eggleston and Eliza his wife filed their bill in the Superior Court of Albemarle county, against the executors of John Harris deceased, in which they charged: That in 1811 Abraham Martin sued out an execution against Nathan Barnett, the father of the plaintiffs Nathan and Eliza, ■which was levied on his property.

IN an action of debt on a prison bounds bond, in be-, L half of Alexander Garrett, assignee of Joseph Blackwell, . . 7 Sheriff of Fauquier county, against Moses Greeny surety for William Blackwell, the following facts were disclosed by a special verdict; viz. that the plaintiff, on the 29th of April, 1800, brought suit, in the county Court of Fanquier, against William Blackwell, on a bond for one thou- * , sand dollars; that on the 29 th of November, 1800, Thomas Chilton,…

<p>If the matter in dispute between the parties, exceed 100 dollars, this Court has jurisdiction.</p>

Nelson’s devisees filed a bill in the High Court of Chancery, stating, that, in the year 1774, their testator purchased of Harwood antE wife, a tract of land which was entailed upon the wife, and took a bond from Harwood, for procuring the entail .to be docked. ■ That Harwood and wife, in December of ..the same year, executed a deed to the testator for the said lands, and covenanted therein, that the grantee and his heirs, &c. should peaceably enjoy; that the grantors would…

In ejectment brought by Hill against Burrow, for a tract of land, the jury found a special verdict, stating, that Richard Hill made his will on the 3d of October, 1774, whereby he devised the lands in the declaration mentioned, as follows : “I give and devise .to my son Thomas Hill, all my lands on the north side of Nottoway river, in Sussex county, to him, his heirs and assigns forever, as also my lands in Brunswick county, to him and his heirs forever; but in case my son,…

<p>The statute of 1825-0, ch. 15. was intended to prevent unreasonable and causeless delays in suits in chancery; and, with that view, the 14th section authorizes the court of appeals to award a mandamus to the courts of chancery, to compel them to hear causes at the first term at which they are prepared lor hearing, when no special cause appears for the refusal of the court to hear them; but the statute does not authorize a mandamus to compel a hearing of a cause, which the court of chancery, in its discretion, for reasons satisfactory to it, thinks proper to continue.</p>

<p>1. A sale of property under an execution, by the sheriff, is bona fide, though irregular; and the purchaser loaves the property with the debtor in the execution. Held. The sale is valid; and the property is not liable to the creditors of the debtor in execution.</p> <p>2. A purchaser of property leaves it in the possession of the original owner, hut possession thereof is taken by the adm’r of tho purchaser before creditors have acquired a specific lien thereon, by judgment and execution. Held. It is not liable to the original owner’s creditors.</p> <p>3. The lien which a creditor acquires by a levy of his execution upon personal property is, if not enforced by a sale thereof, only temporary ; and expires with the authority to sell under the execution. Therefore, a surety of the debtor, who afterwards pays the debt, has no right to be subrogated to the lien of the execution upon this property.</p> <p>4. A purchaser of property, from a sheriff; by a sale bona fide, but irregularly made, leaves it in the possession of the debtor in the execution; and he afterwards, and whilst it is so in his possession, conveys it in trust to secure his sui'ety, who has notice of tho first sale and purchase. Held. The surety having had notice at the time of the conveyance in trust, has acquired no right as purchaser against tho adm’r of the first purchaser.</p> <p>5. Queere. If the first sale had been fraudulent in fact, whether notice of the sale would have precluded the claimant under the trust deed.</p>

THIS was an appeal from a judgment of the district rr jo Court of Petersburgh, upon a special verdict in ejectment.

Upon an appeal from a decree of the superiour court of chaneery of Williamsburg, in a suit between Robert Anderson, administrator of Elizabeth Pasteur and executor of Mary Stith deceased, and the executors of JYathaniel Burwell deceased, who was the executor of William Pasteur deceased, a great many questions of fact, and several points of law arose, and were discussed.

ON theN trial of an issue, on the plea of non detinet, in an action brought by William Dyer against Charles Broad-f°r several slaves, the plaintiff gave in evidence, on his part, an agreement under seal, dated the 2d of June, j ygy between himself and one John Finney, setting ’ , . ,. . forth that the said John Finney did bind the following negroes to the said William Dyer, to wit, Ned, aged eight years, Rebecca, aged five years, and Pleasant, aged three years ; until they…

UPON an appeal from a decree of the Superior Court of Chancery, for the Richmond district, affirming a decree of the county Court or Rrince-George.

In ejectment brought by John Tate against Debdul Tally, for a tract of land in Hanover county, the parties agreed a case, which stated, that Robert Tate being seised of the lands in the declaration mentioned, made his last will on the 11th of May, in the year 1777, whereby he devised the said lands in the words following : 1 ‘I will and bequeath to my son Jesse Tate, all the land I hold on the south and east side of the above mentioned road, bounded on the south side by John…

Thomas Barnett obtained an attachment from a Magistrate of Frederick county, against the estate of Darnielle as an absconding debtor.

In 1793, Joseph Roberts qualified as the guardian of Molly Roberts, and executed a bond, with Robert Latham as his security. Joseph Roberts died prior to the year 1800, when Susanna Roberts his widow qualified as his administratrix, with Philagathus Roberts and William Helm as her securities. But the condition of the administration bond which they executed did not conform to the requisitions of the statute, and omits all provision for the benefit of creditors.

JOHN MURCHIE, surviving trustee of the town of Manchester, filed his bill in the Superior Court of Chan-eery, for the Richmond district, against John Mayo, Charles Carter, surviving trustee of William Byrd, and William Nelson, his agent; stating, “ that, in the year 17 — •.

John Stever entered a caveat against a patent for 184 acres of land, on Looning’s creek, in Botetourt county, surveyed for Gillis, the 16th of May, 1797.

This was an appeal from the Chancery Court of Wythe. The ease was this: James Findlay died, leaving a widow and nine children, two of whom wore married women. By his will he devises to his wife, “ the plantation I now live on, and all moveable property,” as long as she lived, or until his youngest child came to age.

In ejeetmént brought by. Duval and Younghusband, against Bibb, for a tract of land, the jury found a verdict for the plaintiffs subject to the opinion of the Court’ oh a case which states, that Bibb, by deed dated the 13th of December, 1788, and recorded on the 16th of the same month, conveyed the lands to Graves. That Bibb was, at that time, in actual possession, and had been so for upwards of twenty years.

This suit was brought in the name of Lee, as Governor and successor of B. Randolph, who was successor of Randolph, against Ward, Stuart, Renick, JLnderson, Qlendeneon, Reid, Banks and Johnston, upon a bond gi« ven by Ward, as Sheriff, on the 26th of April, 1787, in the penalty of 10,000/.; and conditioned for the faithful performance of the duties of his office.

<p>H. having only an equitable estate in land, conveys the land by deed of bargain and sale, without any warranty, to M. and F. in trust to secure a debt to B. and this deed of trust is duly recorded; afterwards, II. acquires the legal title; and then he sells the land to D. and conveys it to him with warranty: Held,</p> <p>I. That, as the deed of trust executed by H. to M. and F. to secure the debt to B. was executed when H. had not the legal estate, and as that deed contained no clause of warranty, the legal estate subsequently acquired by H. did not enure to the trustees M. and F. to secure the debt to B. so that B. had only a lien on the equitable estate.</p> <p>2. That the recording of the deed mortgaging H.’s equitable estate to secure the debt to B. was not constructive, notice of that deed to D. the subsequent purchaser from H. For,</p> <p>3. The statute requiring deeds to be recorded, makes them void, as to subsequent purchasers without notice, if not recorded, but gives them no additional validity if recorded.</p> <p>4. To sustain a plea of purchaser without notice, the party must be a complete purchaser before notice; that is, must have obtained a conveyance and paid the whole purchase money.</p>

Goosely sued a scire facias against Holmes, as administrator of Elliott, upon a judgment obtained against Elliott, in his life-time; the defendant pleaded, that lie had fully administered by discharging certain judgments (setting them forth,) obtained against Elliott himself, and by payment of public taxes.

In ejectment for a lot of land in the town of Alexandria, brought by Elizabeth Copper, late Elizabeth Arrell, daughter of Eichard Arrell, deceased, and others, against Archibald M’Eean; the, jury found a special verdict, which stated: That John Muir and Harry Piper, two of the trustees for the town of Alexandria, being seised as the law requires, conveyed to James M’Leod, in fee.

In 1821, John Douglas filed his bill in the County Court of Albemarle, against the administratrix and heir of James Burnley, in which he alleged, that in 1796, James Burnley sold to Wiley Dickinson a tract of land, and executed to him a bond, with said Douglas as one of his sureties, with condition to make Dickinson a good title to the land.

By deed bearing date the 3d day of February 1813, Benjamin Haley conveyed to George Williamson and Miles Turpin, the whole of his property, consisting of a lot in the City of Richmond, a number of slaves, horses, all the fixtures and tools about his brickyard, brick, brickwood, all his household and kitchen furniture, and debts due to him, upon trust for the payment of all debts due to certain creditors therein named, and to such other of his creditors as should sign the…

Pur die, as executor of Pur die, brought debt against the Cohoons, as heirs of Cohoon, upon a bond given by their ancestor. Pleas. 1. Payment. 2. Thai the defendant had no assets by descent, nor had at the time the writ issued, nor at any time since, except a tract of 107 acres of land.

Cafret, Kosters & Co. brought indebitatus assumpsit against Murray & Co. and declared for money had and received to the plaintiffs’ use. Pleas, non assumpsit, and the act of limitations. Replication, that the plaintiffs were out of the State. Issue.

This was an appeal from the Superior Court of Bedford county. The case was argued by Leigh, for the appellant, and Johnson, for the appellees; but as it is so fully discussed by the Judges, it will be unnecessary to do more than re,fer to the opinions which follow.

Griffin brought a bill in Chancery, against Willis and Brachan, to be relieved from an agreement entered into, March 27th, 1780; whereby Willis was to pay the plaintiff 15,000/. on the 4tli of May following, and to give his bond for payment of 10,000/. on the 4th of May, 1781: In consequence of which, the plaintiff was to give Willis his bond for 2,500/. specie, payable on the 4th of May, 1790; and, if be failed to make the payment of the 15,000/. on the appointed day, the…

<p>Berkley, as treasurer, brought suit in the General Court, against Turner, Cook and Reese, as securities of Rogers, Sheriff of Southampton, upon the said Rogers’s Sheriff’s bond. The declaration stated the bond as joint and several, and that all the obligors executed it. The breach assigned was, the non-payment of the taxes, which ought to have been collected in the year 1785. The defendant, Cook, alone appeared : Plea, conditions performed. Issue. Upon the trial of the cause, the defendant filed a bill of exceptions stating, *that the plaintiff offered in evidence to the jury, the record of a judgment against Rogers, for the balance of the taxes collected by him for the year 1786, pursuant to the act of Assembly for redeeming certain certificates; to which the defendant objected, and insisted, that he pught to be at liberty to contest the amount claimed by the public at the time of rendering the said judgment, by shewing that, as the taxes were payable in certificates and facilities, and the Sheriffs by various laws are allowed to discharge their arrears by such certificates and facilities, the jury are au-thorised to enquire! whether the certificates and facilities were, at the time for payment, or at the time of rendering the judgment aforesaid, of equal value with specie, and to adjust their damages accordingly: And, also, that the jury were at liberty to consider, whether they were bound to charge the said Rogers with the fifteen per cent, damages given by law upon motions against Sheriffs, or might not, unbound by that law, judge of the damages which the said Rogers ought to have paid for his default: But, the Court decided that the judgment against the Sheriff, was conclusive evidence against the security in this case, and refused to permit the defendant to enter into any enquiry touching its merits. Verdict and judgment for the plaintiff; and the defendant obtained a writ of supersedeas from this Court.</p> <p>3. The value of facilities only was de-mandable. 1. Because, it was not a debt due from the Sheriff, but a neglect to per. form a duty; and this at a particular period. Consequently, the damages ought tQ have been measured by the value at the period of the breach. 2. Because, if it be considered as a debt, then it was the value when they ought to have paid. 3. Because, if they were considered as the papers of the public, converted by the Sheriff to his own use, then the value at the time of conversion, or at most, of the suit, ought to have been the rule. Woodson v. Payne, 1 Call, 573. 4. Because, the Sheriff could only have enforced facilities; and, therefore, he ought not to be liable for more than he could compel. 5. Because, the taxes'were made payable in facilities, so that pro hac vice they were equally a currency with specie. Of course, the Sheriff was only delinquent in not paying facilities of that date. 6. Because, the defendant, as payer, had still a right to have paid in those very facilities; and, therefore, the Court could not deprive him of it.</p> <p>The judgment was conclusive, as it ascertained the amount of the claim; and it was a debt due, in fact, from the Sheriff, and his securities; for, whatever was due from the Sheriff was due from the securities. There was no surprise in obtaining it, as the Sheriff had notice; and it is more convenient that all should be bound by the enquiry against the Sheriff himself, who has the best knowledge of the defence proper to be set up. There is nothing in the record to shew the standard by which the value of the securities was ascertained; and the doctrine contended for would be highly detrimental to the public, to whom the certificates were worth their par value. The securities are liable to the 15 per cent, damages; for, it is the act of the Sheriff which produces them, and the law says he shall pay them. That all the obligors were not sued, makes no difference; for, it should have been plead in abatement. Co. Lift. 485; Allen, 21,41; [Ascue v. Holling-worth,] Cro. Eliz. 494, 544; [Whelpdale’s Case,] 5 Co. 119.</p>

Leeds filed a bill in Chancery, stating, that Clark being indebted to him, absconded, and the plaintiff took out an attachment against his effects; which was levied by Mos-by, the Sergeant- [of the City of Richmond, ] on a female slave, and some other articles.

Colville & Co. obtained writs of sequestration from the High Court of Chancery against Ross, in order to enforce perform - anee of a decree. Eoss offered to appeal to this Court; which the Court of Chancery allowed.

Thornton, as trustee for the estate of Joseph Eobinson, brought a bill in Chancery, against Corbin, stating; that Benjamin Eobinson, the elder, on the 10th of February, 1757, conveyed 450 acres of land, including a mill, in trust, as to the mill, for himself, and wife, who is since dead, for their lives; and from and after the death of the survivor, in trust, as to a moiety of the mill, &c. for Joseph Eobin-son, in fee, and, as to the other moiety and the lands, in trust for…

Young brought suit in the Borough Court of Norfolk, against Maitland and Gregorie, for levying an attachment on.his property in France without cause, the plaintiffs and defendant being all inhabitants of this country.

This cause came before the Court by appeal from a judgment of the District Court of Staunton, rendered in favour of the plaintiff, the present appellee.

<p>Thomas Collins late of King 8f Queen deceased, made his last will and testament on the 17th May 1826, whereby be devised and bequeathed one third of his estate to his wife Virginia for life, remainder to his two children Elisabeth and Thomas, to be equally divided between them ; and the other two thirds to the two children, to be equally divided between them, with some executory limitations in case either or both of the children should die before attainment to full age or marriage. And the same T. Collins after-wards, by deed dated the 26th of the same mouth,—reciting, that the deed was made for the purpose of advancing his son Thomas with certain gifts, which it should not be in his power to revoke,—transferred and assigned to Joseph Janey, “ all the debts now due to the said T. Collins” [the father] “ whether the same he due to him by bond, bill, note, judgement, account or otherwise,” “ the amount of which debts will appear by a schedule hereto annexed,” upon trust to allow T. Collins, the father, to collect the debts and enjoy the interest of the money during his life, and after his death, if T. Collins, the son, should survive him, to hold such money as should have been previously collected, and to collect and hold the residue, and to apply the same to the support, maintenance and education of T. Collins, the son, during his minority, and to pay him whatever should remain unexpended, if any should remain, so soon as he should attain to full age; and if the son should .attain to full age before the father’s death, then to pay the whole amount to him at the father’s death; with executory j¡mjtatjons tQ grantor’s daughter Elizabeth, in case the son should die before his father without issue, or after his father, under age and without issue 8zc. There was no schedule of1 the debts annexed to the deed. T. Collins, ■the father, died not long after the execution of the deed. His will was proved and recorded in the county court of King Queen, at August term 1826; and administration with the will annexed, was granted to his widow Virginia Collins.</p> <p>Upon a bill exhibited in the superiour court of chancery of Richmond, by Virginia, the administratrix with the will annexed, against Janey, the trustee named in the deed of the 26th May 1826, and T. Collins, the cestui que trust, two questions arose; 1. Whether T. Collins, the son, could claim the subject assigned to the trustee for his use by the deed, and at the same time claim under his father’s will, one third of his other estate ? and 2. Whether he was entitled under the deed, to all debts which had been contracted to his father at its date, as well those which had then become payable, as those which were to become payable at a future time, or only such debts as had not only been contracted but had become payable befo’re and at the date of the deed ? in other words, what was the import of the words in the deed, all the debts now due ?</p> <p>It appeared, by accounts taken- by order of the court, that there were debts which had been contracted and become payable to TV Collins, the father, before and at the date of the deed of the 26th May 1826, to the amount of about 5000 dollars; that there were debts contracted to him before and at that date, but which had not then become payable, to the amount of about 2000 dollars; and that his whole property, real and personal, including debts of both descriptions, was, at the date of his will and of the deed, of the value of about 13500 dollars.</p> <p>The chancellor was of opinion, and accordingly decreed, that T. Collins, the son, could not „claim both under the deed of the 26th May 1826, and under the will of his father; and that, if he should elect to claim under the deed, he was entitled under it, to all the debts which had been contracted to his father before and at its date, as well such as became payable afterwards, as those which were then payable. From this decree, Mrs. Collins, the administratrix, appealed to this court.</p>

Robertson executor of Cole recovered judgement against P. Claiborne administrator with the will annexed of R. Claiborne, in the circuit court of Dinwiddle,' and sued out a writ of fieri facias thereon, and delivered the process to the sheriff.

Moved to dismiss the appeal, because, the sum decreed was under a hundred dollars, and therefore, the cause below the jurisdiction of the Court. Although the decree is for less, yet the matters in dispute between the parties amounted to much more; and, therefore, as the party has a right to the opinion of this Court, whether the Chancellor decided rightly upon the subjects of controversy, the appeal was properly allowed, and this Court has jurisdiction.

The Georges obtained an attachment from a Magistrate against Sidwell, as an absconding debtor, for 48/. 15s. 5d, Blue was summoned as a garnishee, and confessed he owed Sidwell enough to pay the plaintiffs’ demand: Whereupon, Sidwell being called, and failing to appear, the County Court gave judgment “that the plaintiffs recover against the defendant the sum of 48/. 15s. 5d. with interest thereon, to be computed after the rate of five per centum per annum from the 14th day…

This was an appeal from the Chancery Court of Staunton. The suit was brought by William Bandolph, and after-wards revived in the name of his administratrix, against Kinney, the children and representatives of John Miller, deceased, and the children, devisees and representatives of David Stuart, deceased. The grounds of controversy are so fully stated by the Court, that it is only necessary to refer to the opinion which follows.

Nelson’s devisees filed a bill in the High Court of Chancery, stating, that, in the year 1774, their testator purchased of Har-wood and wife, a tract of land which was entailed upon the wife, and took a bond from Harwood, for procuring the entail to be docked.

The appellant brought an action of debt against the appellee, in the County Court of King and Queen, for 980 dollars and 67 cents; and declared that the defendant (now appellee) being indebted to a certain John P. Saunderson, in that sum, the said Saunderson, on the 6th of November, 1797, made his request in writing, directed to the defendant, requiring him to pay the amount to the plaintiff (now appellant) or order, at sixty days after date, which request being afterwards…

Debt, in the circuit court of Buckingham, by Allen and others, justices of the county court of Buckingham, at the relation of A.nderson administrator de bonis non of Hill, against Cunningham and… Held: that the law was for the defendants, and gave them judgement accordingly. From this judgement the relator took an appeal, in the name of the justices, to this court.

This was an appeal from the Superior Court of Law for the county of Campbell. If was a question of probate, in which the testator was alledged to have been incompetent to make a .will. A great mass of testimony was taken on both sides, which is stated with sufficient minuteness in the opinion of Judge Carr. The two following opinions will give a complete view of the subject.

The Attorney for the State, filed an information against JBed/uger, stating, 1. A promise to give one of the Magístrates, if he would vote for him as Clerk of .the County Court, one 18th of the profits of the office. 2. A certain sum of money, for the samo vote. — Plea, not guilty, and issue.

These causes (which were appeals from decrees of the Superior Court of Chancery for the Richmond District, pronounced the 14th of March, 1804, dismissing- the appellants’ bills) originated in marriage-contracts, entered into by Doctor Archer and Doctor Randolph, on their respective marriages with the daughters of Mrs. Tabb.

On the 18th of January 1847, George W. Blakeney applied, by petition, to the honourable John B. Clop-ton, one of the Judges of the General Court of Virginia, for a writ of habeas corpus, alleging that he was illegally detained in custody in the company of Captain Alburtis, of the Berkeley volunteers, comprising a portion of the regiment of volunteers recently called for from Virginia.

<p>Richard Allen, late of Albemarle, died in 1805, and by his last will and testament directed, That all his land and other property, except slaves, should be sold at auction, on twelve months credit, and the proceeds of sales laid out in stock of the bank of Virginia, or in such other property as his executors should think most advantageous to his children; that as his children should marry or come of age, such of them as should marry or come of age, should, at that time, have his or her part allotted off, until which his should be kept together; and that his debts should be paid out of the proceeds of the sales. He appointed three executors; two of whom Dabney Minor and Alexander Garrett proved the will in the county court of Albemarle, and took upon them the execution thereof. The testator left two children Mary and James, both in early infancy: Mary afterwards married James Carr; and after the marriage, Carr (it seemed) was appointed guardian for James, who was still an infant. It appeared, that no guardian had been before appointed for either of them, but the executor Minor had acted as guardian for both.</p> <p>The executors made sale of the testator’s estate in pursuance of his will. But they did not invest the proceeds of the sales in stock of the bank of Virginia, because (as they said) they thought such an investment injudicious: they collected part of them, as they .fell due, and part they suffered to remain in the hands of the purchasers, upon interest, for several years, and finally accounted for the whole of the proceeds in money.</p> <p>After the marriage of the testator’s daughter Mary with Carr, and after the appointment of Carr guardian for the son James, the executors’ respective accounts of administration were audited and settled by commissioners appointed by the county court for the purpose. Carr and his ward James were both present during the settlement of the accounts by the commissioners, and were repeatedly desired to state any objections that occurred to them, to any part of the accounts, but they made none: however, neither of them was present when the accounts were closed, and the results ascertained and stated. The accounts of both executors, thus audited and settled severally, were reported to the county court; and, no exception being taken to them, were approved and ordered by the court to be recorded.</p> <p>It appeared by these accounts, that the testator owed only-one debt. In the account of the executor Garrett, he was credited with the sum of 2000 dollars paid to Carr after his marriage, the justice of which credit was afterwards contested, but the controversy in respect to it, depended on the peculiar circumstances of the transaction, and involved no question of law. In the accounts of both the executors, balances were struck on the 31st December in every year: each executor was debited with the funds of the estate that came to his hands during each year, and credited with the disbursements of the same year for the expenses of administration, against the principal by him accounted for. In the account of the executor Minor, who (as has been said) acted as guardian of the infant legatees, the disbursements mado by him for their maintenance and education, during each year, were in like manner credited to him against the principal by him accounted for. So that, in the accounts of both the executors, the annual balances due from them, respectively, (and they were considerable), were balances of principal. And at the close of the transactions, interest accounts were stated, in which the executors were charged with interest on the annual balances found due from them, respectively. In the course of the transactions, it appeared, that the executor Garrett sometimes transferred moneys of the estate, which had come to his hands, to his co-executor Minor; which of course were debited to Minor, and credited to Garrett: One of the sums thus transferred by Garrett to Minor was 2000 dollars; and this sum was credited to Garrett, as having been so transferred to Minor, on the 31st December 1810, so as to reduce the balance due from Garrett at the end of that year, by that amount; but the same sum was debited to Minor on the 2nd January 1811, and so composed part of the balance struck against Minor at the end of the year 1811; from which last date, Minor was charged with interest on the balance then struck: the consequence was, that one year’s interest of this sum of 2000 dollars was lost to the estate. It did not appear whether Garrett was credited for this transfer to Minor too early, or Minor charged with it too late : Garrett insisted, that the credit was given to him, at the proper date : Minor said, he did not recollect the date, and could not explain the inconsistency between the account of his co-executor and his own.</p> <p>About six months after the executors’ accounts settled by the commissioners of the county court, had been returned, approved and recorded by that court, Carr and wife and James Allen (who was now of full age) exhibited their bill against the executors Minor and Garrett, in the superiour court of chancery of Staunton, to surcharge and falsify the accounts settled by the commissioners, and to have them corrected. In this bill, they complained of the neglect of the executors to invest the proceeds of the sales made by them, in bank stock; whereby, they said, considerable loss had been sustained, which, they insisted, the executors ought to make good. They alleged, that the accounts of the executor Minor were incorrect in several particulars; over charges, improper charges, and omissions of just credits to the estate: and they complained, especially, of the loss of one year’s interest of the 2000 dollars transferred by Garrett to Minor, in consequence of the credit therefor being given to Garrett at the end of the year 1810, and of the sum not being brought to Minor’s debit till the beginning of 1811. And, as to Garrett’s accounts, they complained, that the credit allowed him for the 2000 dollars paid to Carr after his marriage, was unjust (and this, indeed, was the main point of the controversy). They made no objection to the general principles on which the accounts were settled by the commissioners of the county court, to. the manner in which the interest account was stated, and interest brought to the debit of the executors at the close of the transactions, or to the application of the executors’ disbursements to the principal of the moneys by them received respectively and accounted for.</p> <p>The plaintiffs afterwards filed a supplemental bill, touching matters not mentioned in the original bill, and not necessary to be further noticed here, since they were not a subject of inquiry in this court.</p> <p>The executors answered severally, each setting up matters of defence as appertained to his own part of the case.</p> <p>And upon the hearing, the chancellor was of opinion, that the plaintiffs had no just ground of complaint against the executors, for their failure to invest the proceeds of their sales in bank stock; that the plaintiffs had failed to establish any of the errors they complained of, in the executors’ accounts settled by the commissioners of the county court, excepting the credit allowed to Garrett for the payment of 2000 dollars to Carr; that that credit ought not to have been allowed Garrett: therefore, he decreed that Garrett should pay the plaintiffs, the 2000 dollars with interest, and all their costs of suit, and he dismissed the original bill as to all other matters therein alleged; but he retained the supplemental bill for future consideration, so that this decree was interlocutory.</p> <p>Garrett appealed from the decree to this court; but the plaintiffs did not appeal from so much of the decree as dismissed their bill as to Minor.</p>

<p>“Where one man recommends another to a third, as being; worthy of trust, by which the person recommended obtains a credit, the party recommending" shall be answerable for any loss the other may sustain in consequence of the credit, if he knew, at the time, that the man for -whom he vouched was not twist-worthy. So decided by two Judges out of three.</p> <p>Where a deed reserves to the grantor a power inconsistent with the avowed ob* ject for which the deed is made, it will be null and void, as against creditors and purchasers. By two Judges.</p>

In ejectment brought by Baird against Tabb’s representatives, for a piece of land in the town of Petersburg, the defendants filed a bill of exceptions to the Court’s opinion, which stated, that they objected to the introduction of a deed from Blow and wife, to the plaintiff, dated 2d January, 1797, for “a parcel of land in the town oi Petersburg, on the south side of the street thereof, being-part of a tract purchased of Ncwsum and wife, by deed dated the 21st of October,…

Thomas Barnett obtained an attachment from a Magistrate of Frederick county, against the estate of Darnielle as an absconding debtor.

WILLIAM RAMS AT filed his bill in the superior Court of chancery, for the Staunton district, stating that the goods of a certain David Lusk, of Rockbridge county, being under execution at the suit or Jones ts Co., (which property was principally store goods, or the remains of a store,) the complainant, and a certain Robert Moore, at the request of said Lusk, became his securities in a forthcoming bond for the delivery of said goods, on the day and at the place oí sale; the…

John Stever entered a caveat against a patent for 184 acres of land, on Looning’s creek, in Botetourt county, surveyed for Gillis, the 16th of May, 1797.

Lucy Alexander died in the year 1781, and by her last will and testament, devised and bequeathed as follows: “ I give and devise the laud and plantation whereon I now dwell, consisting of 800 acres more or less, to my executors hereafter mentioned, that they my executors, or the survivors or survivor of them, may sell and convey the same for the best price that can be got—and my will and desire is, that the produce of the sale be equally divided between my daughter Frances…

In ejectment brought by William Hall against Mary Hall, the parties agreed a case, stating, that William Hall obtained a patent from Lord Fairfax, on the 21st of May, 1751, for 582 aeres of land, and entered on. and was seised thereof as the law directs. That he devised the same to his sons Thomas and Joseph, for life, with remainder to their eldest sons and their heirs, but, if no male issue, to their eldest daughters.

This suit was brought in the name of Lee, as Governor and successor of B. Randolph, who was successor of E. Randolph, against Ward, Stuart, Renick, Anderson, Clendeneon, Reid, Banks and Johnston, upon a bond given by Ward, as Sheriff, on the 26th of April, 1787, in the penalty of 10,0001. ; and conditioned for the faithful performance of the duties of his office.

Goosely sued a scire facias against Holmes, as administrator of Elliott, upon a judgment obtained against Elliott, in his life-time; the defendant pleaded, that he had fully administered by discharging certain judgments (setting them forth,) obtained against Elliott himself, and by payment of public taxes.

In ejectment by Tibbs on the demise of Blair Morun and Richard Wells against Wartenby for a lot of land, the jury found a special verdict, which states: That Charles Prather and wife, by deed of bai'gain and salo, conveyed to Edward and Blair Moran in fee simple; which deed, dated the 11th December, 1790, they find in hsec verba, and it contains a clause that the grantee should pay a yearly rent; with a clause of re-entry for non-payment of the rent, after demand made upon…

Harvey entered a caveat against a patent to Preston for ,050 acres of land in the county of Botetourt; which was surveyed for Preston upon the 13th of December, 1793, under an order of Botetourt Court, granting him leave to comprehend his several adjoining claims in one survey; because Harvey claimed part, thereof by an entry of the 15th of Jlpril, 1785, for 250 acres; of which, 187 acres were surveyed on the 3d of June, 1785, and a patent obtained therefor on June 11th,…

Purdie, as executor of Purdie, brought debt against the Cohoons, as heirs of Co-hoon, upon a bond given by their ancestor. Pleas. 1. Payment. 2. That the defendant had no assets by descent, nor had at the time the writ issued, nor at anjr time since, except a tract of 107 acres of.land.

Harris brought a suit in Chancery to be relieved against, a contract with Magee for the purchase of 300/. worth of merchandize; which the bill states Magee was to furnish from Philadelphia, at the lowest rate they could be purchased at, from the wholesale dealers there, and Harris was to give him Virginia currency for Pennsylvania money, equal to advance of 25per cent.; the money to he paid in three months, and to be secured by deed of trust.

Griffin brought a bill in Chancery, against Willis and Brachan, to be relieved from an agreement entered into, March 27th, 1780; whereby Willis was to pay the plaintiff 15,0001. on the 4th of May following, and to give his bond for payment of 10,0001. on the 4lh of May, 1781: In consequence of which, the plaintiff was to give Willis his bond for 2,5001. specie, payable on the 4th of May, 1790; and, if he failed to make the payment of the 15,0001. on the appointed day, the…

The controversy between the appellant and appellee in this Court, arose out of two suits in the Superior Court of Chancery of Fredericksburg, in which both of them were-defendants. The bill, in one of those suits, was exhibited by James Webb, executor of Robert Jeffries, against Joseph Fauntleroy, administrator de bonis non of Griffin M. Fauntleroy, Thomas Jones and Elizabeth his wife, and Peter Northern.

This was a revived appeal from a decree of the Superior Court of Chancery for the Richmond District, pronounced by the late Judge of that Court. The cause was fully argued in October term, 1805; but before the Judges were prepared to give their opinions, the appellant (the honourable Joseph Jones) died, and the cause stood continued for proper parties, and for decision until the present term.

<p>Testator’s will is written for him by R. P. who testifies, that he also signed testator’s name thereto, in the presence and at the request of the testator, and then subscribed his own name as a witness in the testator’s presence: and another witness, B. H. testifies, that some years after-wards, the witness being at testator’s house, it was suggested to testator that that was a favourable time to have that will witnessed; testator assented-; the paper in question was pi-oduced; witness took it near to testator, and inquired whether he acknowledged it; testator said he did; upon which, this witness subscribed as a witness in testator’s presence : Held, the acknowledgement of the paper by testator to the second witness, was a recognition of the signature thereto as his own, and evidence from which a court of probat may well infer, that the testator’s signature to the will was written by his authority.; and so here are two witnesses to the execution of the will, as required by the statute; dissentiente Brooke, J.</p> <p>The authority of Burwell v. Corlin, 1 Rand. 131. doubted.</p> <p>Upon a question of probat of a will, the testimony of one of the attesting witnesses is directly contradicted by that of another; the county and circuit courts both give credit to the witness for the will: on appeal from the sentence of probat, Held, that the court of appeals, on a mere question of credibility of witnesses, will always presume, that the inferiour courts, which saw and heard the witnesses examined, decided correctly.</p>

Deeds filed a bill in Chancery, stating, that Clark being indebted to him, absconded, and the plaintiff took out an attachment against his effects; which was levied by Mosbjq the Sergeant [of the City of'Richmond,] on a female slave, and some other articles.

Elisabeth Pinchback, widow, purchased a slave named Sarah, and made her last will in writing, dated in 17.'Í0, in the words following, to wit: “And as touching such worldly goods or other estate wherewith it hath pleased the pory to endow me within this life, I do give and dispose of in manner and form following, Imprimis, I do hereby give and bequeath to my loving son John Pinch-bade, all my tract or parcel of land in Goochland county, being five hundred acres, and known by…

This was an action of debt brought by H. W. Sp J. J. Pry against Shepherd, Hunter and Ellis, as partners, in the Circuit Superior Court of Louisa, upon a negotiable note signed Shepherd, Hunter Sf Co., and promising to pay to the Frys 1330 dollars 15 cents, thirty days after date. The declaration does not aver that the note was signed or subscribed by the defendants.

Young brought suit in the Borough Court of Norfolk, against Maitland and Gregorie, for levying an attachment on his property in Erance without cause, the plaintiffs and defendant being all inhabitants of this country.

This was a suit instituted by Beall, in the General Court, for goods, wares and merchandizes, sold and delivered.

This was an appeal from the Superior Court of Law for Charles City county. Bell brought an action of replevin against Vaiden and Shell, to recover four slaves. The writ issued, and was executed, without a bond being taken, according to the act of Assembly; but bond and security were given after the emanation of the xvrit.

<p>1. The act, Sup. Rev. Code, ch. 109, § 30, p. 145, authorizes appeals as of right from the County to the Superior Courts, in the case of a sentence or order made under the 41st section of the act concerning wills, intestacy and distributions, 1 Rev. Code, ch. 104, p. 385, revoking, whether absolutely or conditionally, for any of the causes in that section mentioned, the powers of the ex’or or adm’r, with a view to the appointment in his stead of an adm’r de bonis non, or the committing the estate to the sheriff.</p> <p>2. By the 21st and 35th sections of the act, 1 Rev. Code, cli. 104, it was intended that the Court granting administration on an estate, or admitting an ex’or to qualify as such, should have a discretion in regard to the amount of the security. And the general practice of requiring the security in double the estimated value of the estate, is a proper exercise of that discretion.*</p> <p>3. The other good security authorized to be required by the 41st section of the act, is not to be in lieu of, or by way of substitution for, the former security, but in addition thereto. And the former securities are not thereby exonerated.</p> <p>4. In determining the amount for which the other good security ought 1o be required, regard ought to be had to the value of the estate remaining unadministered, including any accessions thereto beyond the original estimate thereof, and to the extent of the available security still furnished by the original bond.</p> <p>5. The order of an appellate Court requiring other good security from an ex’or or adm’r, should be directory only, to the Court that originally granted the probat or administration: the latter Court alone having authority to receive the additional bond and security.</p>

At the last term, this cause was argued and decided; but, at Mr. Hay’s request, who stated it to be a case of the first impression on a branch of our statute of frauds, which was not to be found in the statute of 29th Car.

Joseph Gallego, late of the city of Richmond, died in July 1818, seized and possessed of a large estate, real and personal: and by his last will and testament,—after bequeathing 50,000 dollars to his executors, John Richard and Peter J. Chevallie, in trust for certain relations in Spain. and devising and bequeathing to P. J. Chevallie a merchant manufacturing mill with its appurtenances, a lot in Richmond, all his slaves not otherwise disposed of, and 15,000 dollars, and…

This was a writ of error to a judgment of the General Court, rendered on a bond given by three obligors. The suit was instituted against the surviving obligor, and against the executors of each deceased obligor, but was discontinued against the surviving obligor, and judgment was rendered against the executors of the two deceased obligors.

<p>[The ease was submitted to the jury, who not agreeing, a juror was by uonseut withdrawn. In this stage of the proceedings, the plaintiff was permitted to amend his declaration, the cause being in paper, notwithstanding the jury had been sworn, as no verdict was rendered; during which time, amend, ments, in favour of justice, are within the discretion of the Court.]</p>

<p>[N ot a valid objection to a surety to an appeal bond, that he was surety to the injunction bond also.]</p>

Walter King Cole had obtained against Thomas Johnston one of the plaintiffs, who was Sheriff of the county of Louisa, a judgment; and thereupon, an execution issued; which was served by the defendant, as Coroner, on the property of the plaintiff; who gave, for the forthcoming of the property on the da}' of sale, a bond to the Coroner himself, instead of the plaintiff, with the following condition: “The condition of the above obligation is such, that whereas the said…

The Georges obtained an attachment from a Magistrate against Sidwell, as an absconding debtor, for 481. ISs. Sd. Blue was summoned as a garnishee, and confessed he owed Sidwell enough to pay the plaintiffs’ demand: Whereupon, Sidwell being called, and failing to appear, the County Court gave judgment “that the plaintiffs recover against the defendant the sum of 481.

<p>1. The plaintiff cannot appeal from a judgment in favour of all the defendants, except, in a joint action of tresr pass, until the suit has been abated, dismissed, or decided, as to that one.</p> <p>2. A warrant, to arrest a person of whom surety for the peace is demanded, being executed neither by a sworn officer, nor to whom it was directed by the magistrate, but by an indivi dual selected by the prosecutor, who erased the name of the person appointed by the magistrate, and substituted that of the person selected bu himself, is thereby rendered altogether illegal and void as a justification, but may he given in evidence in mitigation of damages.</p> <p>3. Quare, if the persons, to be arrested, be described only by their surnames, the counties they reside in, and their professions, or trades, without their ehristian names ; is not such Avarrant too general and uncertain, and, therefore, illegal and void ?</p> <p>4. A Avarrant, directing the “ associates,” of persons named, to be arrested, AUlhout mentioning the names oí such associates, is illegal and void as to them.</p>

<p>This was an appeal from the Superior Court of Fluvanna county.</p> <p>Parker and wife, the latter of whom was administratrix of Bruce, deceased, brought an action on the case, against Pasteur, to recover the value of some trees, which (the declaration alledges) Bruce, in his life-time, had sold to .flndcrson, through his agent, Foster, and for which the defendant had made himself liable, by a letter in the following terms:</p> <p>“Mr. Reuben Bruce.</p> <p>“ Sir,</p> <p>“ The bearer, Mr. Foster, goes down to your house, with a view to contract with you for the purchase of a parcel of trees. Any bargain which Mr. Foster may make with you upon this score, you may consider me as bound to see you paid. He also informs me, that it is probable you may haul some of them to the river. If you do so, I will pay you the cash upon his order, at the end of each week, or oftener, if required.</p> <p>“I am, sir, your obedient servant.</p> <p>(Signed)</p> <p>“W. Pasteur.</p> <p>“Fluvanna C. House, July 10, 181,6.” The declaration alledges, that in consideration of the said letter, the plaintiffs’ intestate, on the credit of the letter, sold to a certain Leroy Anderson, by his agent Foster, a parcel of timber trees, (stating their number and value) and also did hauling to the value of S3 60 cts.; amounting in all to 0128 10 cts. The plaintiffs aver that their intestate in his life-time, and they, since his death, have never received of Leroy Anderson, the said sum of money; by which the defendant became bound to pay the same; but that he had altogether failed to do so, &c.</p> <p>The defendant pleaded non assumpsit, and • issue was joined.</p> <p>The jury found a verdict for the plaintiffs, and gave them damages to the amount of $116 10 cts. with interest, &c.</p> <p>At the trial of the cause, the defendant introduced a note or writing, signed by Samuel Foster, purporting to be an account of timber cut under his directions at Mrs. Bruce’s, and a witness to prove Foster’s hand-writing; and the letter of the defendant, which has been before recited; which testimony being objected to by the defendant’s counsel, the objections were over-ruled, and the evidence permitted to go to the jury. The defendant excepted.</p> <p>A point of law was reserved for the opinion of the Court, by consent of parties, viz: whether the plaintiffs, to maintain their action against the defendant, are or are not bound to prove a demand made of Leroy Anderson, and refusal on his part to pay the amount demanded by this action.</p> <p>The Court decided this question in favor of the plaintiffs.</p> <p>Judgment was accordingly given for the plaintiffs, and the defendant appealed.</p>

This was an appeal from the High Court in Chancery. In the year 177 , a British merchantman stranded and sprung a leak near one of the little islands in the Chesapeake, and, with her cargo, was totally abandoned by her crew. Berry Floyd, and others with him, came on board her, and began to save the cargo. Almost immediately after, Barrett, with another company, came up in a boat, and were asked to come on board, and work.

<p>Virginia Collins having a son named Thomas, and a daughter named Elizabeth, became the guardian of the daughter, and executed a guardian’s bond, in the penalty 'of 6000 dollars, with the usual conditions. Afterwards, Mrs. Collins married George T. F. Lorimer; and her son Thomas dying, Lorimer administered on his estate ; and Lorimer afterwards dying, Mrs. Lorimer administered on both her husband’s and son’s.estate. Elizabeth Collins having, in the mean time, married George Smith, Mrs. Lorimer, after the death of her husband, had a settlement with Smith, on which occasion the following statement was made, and the bond at the foot of the statement was executed.</p> <p>1841, July 3—Balance due on the guardianship account of Virginia Lorimer, guardian of E. Collins, - 6399 94</p> <p>Ditto due on Virginia Lorimer1 s acc’t of administration of Thomas Collins, son of Thomas, sr. - 834 07</p> <p>7234 01</p> <p>I promise and oblige myself, my heirs, executors and administrators, to pay George Smith, his executors, administrators and assigns, the just and full sum of seven thousand two hundred and thirty-four dollars and one cent, on demand. Witness my hand and seal this 3d of July in the year 1841.</p> <p> </p> <p>Mrs. Lorimer paid to Smith, on this bond, 360 dollars in 1842, and 50 dollars in June, and 500 dollars in December 1843. In January 1844, Smith died insolvent, his wife surviving him; and she afterwards married Addison O. Yerby: and Mrs. Lorimer married Micajah Lynch.</p> <p>William Smith having qualified as administrator upon the estate of George Smith, brought a suit upon the above bond against Lynch and wife ; whereupon Yerby and wife applied to the Superior Court of Spottsylvania for an injunction to restrain the payment of the amount due on the bond to the administrator, and that it might be paid to the plaintiffs, on the ground that George Smith had not reduced that amount of the debt due from Mrs. Lynch to her daughter Elizabeth into possession in his lifetime; and that it therefore survived to her. The Court granted the injunction to restrain the payment of the money to the administrator; but permitted him to proceed in his action to have the money made.</p> <p>The administrator of George Smith answered the bill; and insisted that the chose had been reduced into possession during the lifetime of his testator. He alleged that without this debt his intestate’s estate would be insolvent; and that it was necessary for the payment of his debts.</p> <p>In September 1845, the cause came on to be heard, on the motion of the defendant to dissolve the injunction, when the Judge—Lomax—after stating the case, , , proceeded:</p> <p>The question is, whether the debt liquidated by the bond is a part of the assets of George Smith deceased, or ^as survived to his widow, now the wife of Yerby. The debts which were liquidated by the settlement and bond, which have been referred to, accrued to the wife before or during the coverture; and they were choses in action, in presentí. The marriage was a gift of these choses in action, to the husband, Smith, qualified by the condition, that he should reduce them into possession, during the coverture. This condition, however, is not required by law, to be so strictly fulfilled, as that there should be an actual manual receipt of the money, by the husband.</p> <p>Whatever control the feme, as creditor in her own right, uumarried, had over her choses in action, becomes vested in the husband, when she is married. That control which she, as every other creditor, has over the debt due to him, is not lost by the intermarriage ; but is translated to her husband, to be exercised in his own name, or in the name of himself and wife. There are various modes by which he, in the exercise of this control, can, without the actual receipt of the money due to the wife, impress a new character upon these unpaid debts, which will discharge the condition that has been alluded to, and make them as absolutely his own as if they had been reduced into money by him. A mere appropriation, or intention to appropriate, without any act done changing the nature of the debt, or alienating an interest in the same', to other parties, it will readily be admitted, will not have the effect to reduce it even virtually into possession of the husband, and make it absolutely his own. According to the well settled principles of the English law, jf a judgment or decree for the wife’s chose in action be obtained in the husband’s own name, excluding the wife’s, for the payment of the money to him, the wife’s interest, in the event of her survivorship, will be forever extinguished; though the money be still remaining in the hands of the debtor. The judgment or decree, in such case, makes the debt absolutely the husband’s; and should he die, though the wife be living, it will be transmitted as a part of his assets, to his representatives, to her exclusion. So, if upon an arbitration submitted during the coverture, there be an award that the debt which was the wife’s be paid to the husband. So, if he, for valuable consideration, has made an assignment of the wife’s chose in action. So, a transfer of stock belonging to the wife, to the husband, in his own name. So, if the wife’s rents, or other her choses in action have come to the hands of a receiver in money. He may also extinguish the wife’s debt, in the debtor’s hands, by a release; and defeat any interest which she may claim in consequence of survivorship. His power to sue for and recover such choses in action, to release them, to discharge them, to assign them for valuable consideration, is uncontrolled by law. The changing the wife’s debts into securities, by judgment or decree in his own name, operates an extinguishment of the original debt of the wife. If an extinguishment of the original debt by judicial proceedings against the debtor, in invitum, will change it into the husband’s own debt, to the exclusion of the wife, there seems no good reason why the same effect should not be produced where the change of the wife’s debt into a new security to the husband solely, extinguishing the original chose in action, has been accomplished with the consent of the debtor.</p> <p>It is a well known rule of law, that the taking a higher security for a debt is an extinguishment of it. If a feme, before marriage, had taken a bond for a simple contract, the latter would be extinguished ; and the bond would be the debt. If the husband, after marriage, should take a bond to himself and wife, for a simple contract debt to the wife', it would have the same effect. And if the husband, clothed as he is, with full control, at least for the time, over the wife’s ehoses in action, in presentí, should take the bond to himself, it must e(lUEtHy operate an extinguishment of the original debt to the wife. Henceforward the bond is the debt. No proceedings can be had upon it, but in the name of himself or his representatives. There is no mode in the practice of the Courts, by which the wife can intromit herself into any proceedings upon such bond, either during her husband’s life, or after his death, for the purpose of asserting any title, which she may pretend, to the debt mentioned in the bond arising out of the past consideration. The want of any such remedy for her at law, in such a case, is conclusive to shew, that there exists no longer in her, any right to the debt secured by the bond to the husband.</p> <p>The official bonds, which had been executed by the obligor, as guardian or as administratrix, this Court considers can have no influence upon the rights of the husband, as they have here been laid down. If the husband had taken to himself a bond for the payment of a debt of the wife, already liquidated by a bond which had been executed to herself, and which still remained uncancelled, there would be ground for contending, that her right to the debt, in the event she survived her husband, had not been extinguished ; and might still be enforced by her. That is a question which the Court does not think necessary now to decide. These official bonds, which are now resorted to, to sustain a surviving debt in the wife, were not taken to herself, but to the justices. They were not taken exclusively for the security of the ward or distributee; they were taken Another purposes besides, for the indemnity of the justices, and in the case of the administration bond, for the security of all classes of persons who might be interested in the intestate’s estate. They were not the liquidation of debts existing at the time of their execution, but for debts which might eventually arise by failure to fulfil the conditions of these obligations. They were obligations to enforce the performance of duties, rather than for the payment specifically of money. They were not the debts themselves of the feme, but collateral securities, to which she might resort for the debts which might afterwards arise. The recovery to be had upon them would not be for any certain sums of money, as debts, but for damages for breach of duty. The penalties of the bonds would not limit the amount of the claims which might be asserted by the ward or distributee against the guardian or administratrix obligor. She might recover of the guardian a balance of 6399 dollars 94 cents, by the ordinary appropriate remedies, though the penalty of the bond of the guardian was only 6000 dollars. These higher securities would be no impediment to a recovery against the guardian or administratrix, for what might become due to the ward or distributee, claimed as debts of less dignity than bonds; and such recovery by judgment or decree, would be no ex-tinguishment of the bonds to the justices. It is every day’s practice, after the recovery of such judgments or decrees against the guardian or administrator, to make them the foundation, if they be unsatisfied, of the recourse to the official bonds ; and to make the former the measure of the damages to be assessed, when such recourse is had : and the name of the plaintiff in the judgments or decrees, ascertains the party entitled to such recourse. Such, indeed, is the usual practice in regard to recoveries upon the official bonds, not only of guardians and administrators, but of sheriffs, and it is believed, upon the bonds of all other fiduciaries, public or private, which the law requires to be executed in such cases. See Walton v. United States, 9 Wheat. R. 651. These official bonds, taken to the justices, remain in the Courts where they are taken; are not within the control of individuals, to assign, release or extinguish; but only to sue upon as relators, in the name of the obligees who are mentioned in them.</p> <p>The case of Hamlin v. Atkinson, 6 Rand. 574, which has been cited by the counsel in this case, is in perfect consistency with what has been stated as the law. The bond taken by the ward in that case, in liquidation of the balance which the guardian owed her, was no ex-tinguishment of the guardian’s bond, which the law had provided for her collateral security. The Court, however, has left it doubtful even in that case, if the bond executed by the guardian to the ward had been given and received in full satisfaction, and had been so pleaded,-the defence against the guardian’s bond might hot have been sustained. And it was held, that the bond to the ward was as against the surety in the guardian’s bond, prima facie proof of the amount due, and to be claimed in an action on the official bond. As evidence against the principal, we are not restrained by any thing in that case, from applying to such proof the conclusiveness of an estoppel as to every thing expressed in the bond. That case involved no question as to marital rights. The bond was simply a liquidation of the balance on the guardianship account alone; not embracing another distinct balance on an administration account, and confounding them both in a single entire new security.</p> <p>It is not necessary, however, to contend in this case, that the official bonds were extinguished by the bond to the husband. The law in regard to guardians and wards does not expressly direct how actions on guardianship bonds shall be prosecuted. In regard to administration bonds, it provides that they may be put in suit and prosecuted from time to time, by and at the costs of any party injured by a breach thereof. It is supposed, however, that in both cases, the bonds may alike be put in suit and prosecuted by any party that has been injured by the breach. If the bond taken by the husband to himself, from the guardian and administratrix, for the balances due to the wife, the ward and distributee, should be unsatisfied, who would be the party injured, within the meaning of the law, to put the official bonds in suit, and prosecute the actions upon them ? Is there any reason for saying that this incidental, collateral remedy did not follow the rights of the husband and wife in their conversion from debts due to her as ward and distributee into a debt to himself exclusively? If the debt was made his own by the bond which he took to himself, he would be the person injured by its nonpayment, and by the breach of the condition of the official bonds. The bond had liquidated and merged, during the coverture, all the matters of account. It operated as an estoppel of the obligor as well as of himself; and looking to the privity or rather unity between the obligee and his wife, it operated as an estoppel as to her also; and concluded all parlies, as to every matter directly expressed upon the face of the bond. The wife was by the estoppel excluded from any rights jointly with her husband; and it would have been error to have joined her name in any actions to enforce his rights. Her rights could not be suspended during the coverture, and revive upon the death of the husband. A personal right once suspended is gone forever. After the execution of the bond to the husband, her right during the coverture was utterly extinguished, in the conversion of the debt into a debt to him. He alone could sue upon that bond. He alone was the party injured, if it was not paid. And he alone was the party competent to resort to the remedy which the law had provided, as incidental and collateral to the remedies for enforcing the matters of account that were liquidated by the bond.</p> <p>If the effect of these official bonds was such as is contended for, to preserve uuextinguished the wife’s right to this debt as a chose in action, surviving to her upon her husband’s death, a striking peculiarity has been introduced by our law into the doctrines of marital rights, whenever the wife’s chose in action is, as it must almost a^'Tays be, a debt due to her from a guardian, or from an executor or administrator, or other person who has executed an official bond for his fidelity in any fiduciary relation to her. No bond taken to the husband, not even a judgment or decree in his own name for any such debt, will be regarded in law as a virtual reduction into his possession of the wife’s chose in action. For still there remains as a security for the enforcement of the bond, judgment or decree, the incidental remedy upon the official bond.</p> <p>Sooner than produce such disturbance in the hitherto received doctrines upon this subject, does it not seem much more consistent and rational to say, that the incidental remedy follows the right in its transition from a joint right in the husband and wife, into an exclusive right in the husband alone ?</p> <p>Upon these considerations, the Court is of opinion, that the legal right to recovery upon the bond in question, is exclusively in the husband’s administrator, whether that recovery is to be had upon the bond which the husband took to himself from Mrs. Lorimer, or by resorting to actions on the official bonds.</p> <p>It remains to say a few words upon the case of Howman v. Corie, cited by the counsel from 2 Vern. R. 190. In that case, the testator bequeathed to his daughter a legacy charged on' certain lands, and she was made devisee of the lands until the eldest son, her brother, should pay her the legacy. Upon the occasion of her marriage, there was an agreement between her and the father of her intended husband, and her brother, for a settlement upon her; and her brother covenanted to pay to the intended husband the money bequeathed to her: and it was agreed that when it was paid the land should be discharged. The contemplated settlement never was made. The husband received the interest of the legacy, but died without receiving the principal; and it was held to vest in the wife by survivorship. Some stress might be laid in this case upon the circumstance, that the principal design of this agreement, the settlement, never was effected; and the covenant to pay the money to the husband, formed a part of a general scheme, the essential part of which had failed. The rights of the wife under this will, were of a devisee of the land, until the money was paid to her by her brother. She had a vested interest in the land, whether chattel or freehold, to be divested by her brother, on performance of the condition of paying her a certain sum bequeathed to her. The covenant of the brother to perform this condition, by paying the money to the husband, could not divest the laud. That was the primary, and the condition and the covenant to perform the condition, were incidents. It is obvious that it was so regarded by the parties; because it was expressly stipulated that when the money was paid the land was to be discharged. As her estate in the land had not been surrendered or released by her, not even by implication, but rather confirmed and strengthened by the stipulation that it should he discharged when the money was paid, neither law nor equity could take it from her, and make her benefits under the will to cease on the death of her husband ; and give them to his representative.</p> <p>The covenant was held to be only an additional security, incidental and subordinate to the unextinguished estate of the wife in the land. In the same manner, in the case now to be decided, it would seem reasonable to regard the remedy upon the official bonds of the guardian and administrator as incidental to the right which the bond had vested exclusively in the husband, and not as controlling or defeating it.</p> <p>In pursuance of this opinion, the Court made a decree dissolving the injunction. And the plaintiffs applied to this Court for an appeal, which was allowed.</p>

The Attorney for the State, filed an information against Bedinger, stating, 1. A promise to give one of the Magistrates, if he would vote for him as Clerk of the County Court, one 18th of the profits of the office. 2. A certain sum of money, for the same vote. — Plea, not guilty, and issue.

This was an appeal from the Superior Court of Lewis county, where Haskill and others brought an action of ejectment against Camden and others, for a certain tract of land containing 100,000 acres, in the county of Lewis, on the waters of the west fork of the Little Kenhawa, The statement of the case, and the points made in the argument, are so fully set forth in the following opinion, that no other report is necessary.

This was an action of debt for 651. for one year’s rent of a tenement in Alexandria, brought by John Wise against Stephen Cooke, in the liustings Court of that town, and founded on an agreement in writing, not under seal.

This case was adjourned from the High Court of Chancery. The suit was instituted in the County Court of Caroline, by Mr. Pendleton; and the bill stated, that Thomas Wyld, in order to discharge a debt due to Lidderidale 4’ Co., drew, on the first of May, 1753, a set of bills on Messrs. Chauncey, Barclay 4* Co., merchants of London, to whom he had before consigned a quantity of ginseng.

Joseph Sexton filed his bill in the Winchester Chancery Court, stating, that in June, 1815, he purchased of Joshua Pickering, of Pennsylvania, his interest in a certain tract of land in the county of Frederick, being an undivided moiety of a tract that had been devised to him and his brother John, by their father; subject to the incumbrance of their mother’s dower: that in a conversation between the plaintiff and the said Joshua, the latter represented that the said tract…

This was an action of debt, brought by James Wilson against William Newton, in the District Court of Prince JQdward, in which the plaintiff declared in… Held: by all the books, that rent may be apportioned by act of the parties, (a) Since, then, rent is liable to apportionment, according to the ratio of property enjoyed by the tenant, the inquiry is, whether the form of the action precluded the plaintiff from recovering what was really due, though more was demanded. *1 Esp.

Some time in the year 1761, John fy Robert Broddus, two planters in the county of Caroline, having determined to engage in trade, and to retail goods in partnership, and having no correspondent or acquaintance in Europe, applied to'Archibald M’Call, the principal factor of a considerable Scotch house, carrying on trade and merchandize under the firm of John fy William M’Call, and made a verbal agreement with him, the purport of which Broddus states to be, that they might…

These were two appeals from the Superior Court of Wood county. The cases are precisely similar in their circumstances, and depend upon the same question. They were two writs of right brought by Eockbold, who claimed two tracts of land, which had been sold by Thomas Tavenner as deputy of Judgment was given accordingly, and Rockbold appealed.

Quarrier, by his lessee, brought ejectment in the Superior Court of Wood county, against Adam and David Deem, for 500 acres of land, on Hughes’ river, in the said county. The jury found for the defendants. The Court granted a new trial; and the defendants filed a bill of exceptions, setting forth the testimony of the witnesses, instead of the facts proved by them. On the second trial, the jury found for the plaintiff. The defendants appealed.

In ejectment brought by Baird against Tabb’s representatives, for a piece of land in the town of Petersburg, the defendants filed a bill of exceptions to the Court’s opinion, which stated, that they objected to the introduction of a deed from Blow and wife, to the plaintiff, dated 2d January, 1797, for “a parcel of land in the town of Petersburg, on the south side of the street thereof, being part of a tract purchased of Newsum and wife, by deed dated the 21st of October,…

This was an appeal from a judgment of the District Court of Petersburg, by which the appellees recovered from the appellant, in an action of detitiue, ten negro slaves.

<p>On an appeal by executors, from a decree in favor of distributees or legatees, for their proportions of the estate, the executors ought to give bond and security*</p>

<p>In detinue, if the jury find for the plaintiff, the slaves, if to be had, or 250¿. for each slave, and damages id ; and the Court render judgment for the slaves, if to be had, and if not, the price found by the jury, with the damages and costs, it is not ez’ror, [though no price or value be laid iu the declaration.]</p>

<p>in debt on a bond, damages need not be laid in the declaration or found by the jury.</p> <p>It is necessary on judgments for sterling money, that the Court should fix the rate of exchange.</p>

This was an appeal from three judgments in the Superior Court of Petersburg. The following opinion is the only report necessary.

Richard Johnston and JIarry Gaines purchased in partnership several lots of land, for which leases had been given by the College of William Richard Johnston, by his will dated in September, 1771, devised, that his College leases should be sold on twelve months’ credit.

THIS was a suit, in the superior Court of chancery for the Staunton district, by the appellant against the apPehees. M'Cormack, the plaintiff’s intestate, had been co-security with Obannon, for a certain Richard Boucher, J 1 ’ in a bond to Henry Whiting, on which judgment was obtained by the creditor, and execution being issued, was satisfied by AHCormack alone, whose administrator, therefore, sued the representatives of Obannon, for contribution.

<p>Appeal from the Superior Court of Law for the county of Buckingham.</p> <p>Fountaine brought an action of debt against Cobbs, in the County Court for @300, on the following note:</p> <p>“ If William Cóbbs, who is now prosecuted for the charge of murdering Maxey, is not found guilty of murder in the first degree, and sentenced for that crime, I will pay to Waller L. Fountaine, the sum of two hundred dollars, on or before the 12th September, 1819; and I am to pay him one hundred dollars at any rate, 12th September, 1818.'</p> <p>“ Witness my hand and seal this 12th September, 1817.</p> <p>“Thomas Cobbs, (Seal.”)</p> <p>The declaration avers, that the said Cobbs was not sentcnced for murder in the first degree, whereby right of aetion hath accrued to the plaintiff, to have and recover the aforesaid sum of $ 100, after the 12th of September, 1818, and also the further sum of $200, after the 12th September, 1819; but the said Cobbs “the aforesaid several sums hath and doth refuse to pay, to wit: the sum of $ 100 on the 12th- September, 1818, and the sum of ¡§200 on the 12th September, 1819,” &c.</p> <p>The defendant pleaded payment; and afterwards, on the calling of the cause for trial, with leave of the Court, he pleaded .that the plaintiff ought not to have and maintain his action, for the $ 200 claimed in the declaration, because the defendant had never been arraigned., tried and acquitted of murder in the first degree, but that the prosecution against him is still depending and undetermined.</p> <p>The plaintiff demurred generally to this plea, and issue was joined on the demurrer.</p> <p>The plaintiff also excepted to the opinion of the Court, allowing the said plea to be filed.</p> <p>The Court sustained the demurrer and over-ruled the plea; and the jury, on the plea of payment, found for the plaintiff the amount of the bond, subject to a credit of $100 paid 12th September, 1818, with interest, &tc. if in law it be for $ 300. But if in law, the bond be for $200, they found for the plaintiff for that sum, subject to the credit aforesaid, with interest, &c.</p> <p>The Court decided that the plaintiff should recover $300 with interest from the 12th of September, 1819, subject to a credit for $100, paid 12th of September, 1818.'</p> <p>On an appeal to the Superior Court of Law, the judgment was affirmed; from which decision the defendant appealed to this Court.</p>

IN an action of debt, oil a bond, in behalf of John Buford, assignee of John B. Pate Co., against William Haws,' a judgment was entered, and confirmed, iftVtv?. clerk’s office of Bedford county, against the defendant, « and William Quarles, the security for his appearance,” who, thereupon, aj^N£aled to the district Court, and, the judgment being th<Si:<2 affirmed, again appealed to this Court.

In ejectment brought by William Hall against Mary Hall, the parties agreed a case, stating, that William Hall obtained a patent from Lord R^irfax, on the 21st of May, 1751, for 582 acres of land, and entered on and was seised thereof as the law directs.. That he devised the same to his sons Thomas and Joseph, for life, with remainder to their eldest sons and their heirs, but, if no male issue, to their eldest daughters.

THE appellant, fcseph Roberts, filed his bill, in the superior Court or chancery, tor the Richmond district, against Reuben Jordan and Benjamin Jordan, for an injunction to stay proceedings on.a judgment obtained by Benjamin Jordan, assignee of ReuJ^gi Jordan, against him, as surety for a certain Abner Witt, in a bond for 9,000 pounds of tobacco, dated the 13 th of January, 1780.

<p>Where judgment is obtained against a principal and surety to a bond, and the latter gives a forthcoming bond, which is forfeited, the original judgment is not thereby satisfied, although any further proceedings on it will be barred, until the forthcoming bond shall be quashed.</p> <p>A surety, who pays money voluntarily on a judgment absolutely barred, loses liis remedy against his principal 5 hut a payment cannot be said to be voluntary, as long as the judgment can be enforced in any way, either by scire facias or action of debt.</p> <p>There is no limitation by statute, to an action of debt, or scire facias on a judgment, except only in the case of a judgment on which no execution has been taken out5 and except in cases of executors and administrators, on a judgment against their testator or intestate.</p>

jPynes brought an action against Ross, for slandering his title to some slaves; and upon the trial of the cause, obtained a verdict and judgment for 500¿. damages. The Court of Chancery granted an injunction, and awarded a new trial, before the District Court, with leave to the plaintiff to amend his declaration. On the second trial, there was a demurrer to the defendant’s evidence by the plaintiff, and the jury found a verdict for 10001. Vid. Wythe’s Rep. 71.

In ejectment by Tibbs on the demise of Blair Moran and Richard Wells against Wartenby for a lot of land, the jury found a special verdict, which states: That Charles Prather and wife, by deed of bargain and sale, conveyed to Edward and Blair Moran in fee simple; which deed, dated the 11th December, 1790, they find in hsec verba, and it contains a clause that the grantee should pay a yearly rent; with a clause of re-entry for non-payment of the rent, after demand made upon…

Thomas Fretwell Philips, an alien, subject of G. Britain, came to Virginia in 1805, and, either personally or through the agency of Daniel Brodie, contracted with W. M. Cary, for the purchase of a parcel of land called Celeys in Elizabeth City county, for 8000 dollars.

A Conditional writ of mandamus, was awarded by the superior Court of Southampton, commanding the members of the county Court to admit James Millar to qualify to his commission, as sheriff of said county, or to show cause wherefore they refused to admit him.

This was an appeal from the Richmond Chancery Court. It was argued in this Court, by Allison, for the appellant, and Spooner, for the appellee. The following opinion will give a full view of the ease.

Harvey entered a caveat against a patent to Preston for 950 acres of land in the county of Botetourt; which was surveyed for Preston upon the 13th of December, 1793, tinder an order of Botetourt Court, granting' him leave to comprehend his several adjoining claims in one survey; because Harvey claimed part thereof by an entry of the ISth of April, 178S, for 250 acres; of which, 187 acres were surveyed on the 3d of June, 1785, and a patent obtained therefor on June 11th, 1787.

William fy Mary, in the fourth year of their reign, granted a charier of incorporation to Francis Nicholson and others, for the foundation of a College in Virginia, to hear their name.

ON the 14th of November, 1797, Daniel Fall, of the oounty of Augusta, was charged, before Jacob Swoope, a justice of the peace for the said county, by Catharine Thyrey, an unmarried woman, with being the father of a bastard child which she had borne. The justice recogwised him to appear at the next county Court, and to perfprm such order as they should then make.

’This appeal was docketed in October, 1804, and was from a judgment on a forthcoming bond. The appellee being dead, and no appearance having been entered for him or his representatives, George K. Taylor moved to take up the cause as a delay case, in the name of the executors, and have the judgment affirmed.

This was an appeal from the Richmond Chancery Court. The case, so far as it is necessary to be stated, was this: In the year 1783, Charles Cross, conveyed ten slaves in trust, for the benefit of his wife, Phoebe Cross, for life, and after her death, to his daughter, Elizabeth Cross. The consideration expressed is “love and good will,” and the sum of five shillings. This deed was recorded in proper time.

<p>New Parties — Construction of Rule. — Construction of the rule, as to allowing- one term to prepare for trial, after new parties are made.</p> <p>Appeals — Death of Appellee — Reversal—Notice to Appellant.* — Where the appellee dies the Court will not take up the appeal, in th e name of his executors, without giving the appellant notice of a scire facias; especially where a great length of time has elapsed since the appeal.</p>

Harris brought a suit in Chancery to be relieved against a contract with Magee for the purchase of 3001. worth of merchandize; which the bill states Magee was to furnish from Philadelphia, at the lowest rate they could be purchased at, from the wholesale dealers there, and Harris was to give him Virginia currency for Pennsylvania money, equal to advance of 25 per cent. ; the money to be paid in three months, and to be secured by deed of trust.

An appeal from a judgment of the District Court, held at King and Queen CourtHouse. The appellee brought an action on the case, against the appellants, (who were joint owners of a schooner,) as common carriers, for a quantity of wheat damaged on board their vessel, on the voyage from Virginia to Baltimore, in Maryland. The damages were laid in the writ, at 2,500 dollars, but in the declaration, at 250 dollars only.

Charles Fleming Bates, attorney at law, at that time an unmarried man, on the 16th of November, 1799, made the following will: “It is the earnest request of C. F. Bates, that George Holman (his most particular friend) will take upon himself the burden of the execution of this instrument, which is intended for the last will and testament *of the subscriber, and that he will hold all the property of which the subscriber may die possessed, and not otherwise disposed of, in…

<p>This was an appeal from the Richmond Chancery Court. It was argued in this Court by Daniel, for the appellant, and Leigh, for the appellee. The subject of controversy, and the arguments of the bar, will be seen by the following opinions.</p>

Elizabeth Pinchback, widow, purchased a slave named Sarah, and made her last will in writing, dated in 1750, in the words following, to wit: “And as touching such wordly goods or other estate wherewith it hath pleased the Lord to endow me within this life, I do give and dispose of in manner and form following, Imprimis, I do hereby give and bequeath to my loving son John Pinchback, all my tract or parcel of land in Goochland county, being *five hundred acres, and known by…

THIS was an appeal from a judgment of the district Court of Fredericksburg, in an action of ejectment ; upon a special verdict, finding “ that Betty Littlepage, now Betty' Holiaday, the now wife of Lewis Holiaday, the defendant, was, on the 14th of March, 1774, seised *n her demesne, as of fee, in the lands and premises in declaration mentioned, and being so seised, did, on the same day and year, by her certain indenture of trust, convey the same to John Lewis, his heirs and…

This was an appeal from the Staunton Chancery Court. Philip Loop, and his son Christian, purchased of Samuel Summers, a tract of land, supposed to contain 50 acres, hut which was afterwards ascertained to contain 62 acres, at 15 8 per acre. It was agreed between them, that the Loops should pay 71/. 10, immediately, and the balance in annual instalments of $40.

WILLIAM BOWDEN executor of Robert Moore, who was administrator of John M1-Murray, brought an action of debt in the county Court of Prince Edward, against Tohn Taggart, on a bond which was stated in the decía- ** ” * i«i ration to have been executed u to the said Robert Moore, as administrator of John RTMurrayP The defendant pleaded payment, but, a verdict being found against him, moved in arrest of judgment on the ground that the plaintiff, as executor, had no right to…

This was a suit instituted by Beall, in the General Court, for goods, wares and merchandizes, sold and delivered.

THE appellees filed their bill in the late high Court chancery, against the executors and devisees of John Shelton, deceased ; (praying, also, that the representatives of John Pendleton, deceased, “ if it should appear necessary,” should be made defendants;) setting forth that on the 25th day of November, 1782, John Shelton and John Pendleton, bound themselves and their heirs, to Charles Crenshaw, in the penal sum of 2,000/ in gold or silver, conditioned for the delivery of…

This was an appeal from the Superior Court of Augusta oounty. The case was this; West brought an action on the ease, in the County Court of Augusta, against the administrator of Humphreys. The defendant pleaded several pleas, which were after-wards withdrawn, except the plea of non assumpsit; and issue was joined on that plea. West having died, the suit was revived by consent, in the name of his administrators.

In the years 1747 and 1753, James Christian, 1 st, made entries for several parcels of land then vacant, viz: one for 390 acres, another for 365 acres, and another for upwards of 2000 acres; all of which entries were duly surveyed in his lifetime.

<p>Joint Obligors — Survival * — A joint obligation survived before tile act of 1786.</p> <p>Same — Executors of — Joinder.†—The executors of two deceased obligors cannot be joined in the same action.</p>

UPON a petition of appeal, and writs of supersedeas issued thereupon, to stay proceedings, in part, on a decree of the superior Court of chancery for the Richmond district, pronounced in sis suits, which were all heard to-4 * gether.

<p>Pleading and Practice — Amendment of Declaration‡ - - Discretion of Court — Case at Bar. — The case was submitted to the jury, who not agreeing, a juror was by consent withdrawn. In this stage of the proceedings, the plaintiff was permitted to amend his declaration, the cause being in paper, notwithstanding the jury had been sworn, as no verdict was rendered ; during which time, amendments, in favor of justice, are within the discretion of the Court,</p>

<p>Appeal Bonds — Sureties—Objection.*—Not a valid obj ection to a surety to an appeal bond., that he was surety to the injunction bond also.</p>

<p>Appeal Bonds — Sureties—Objection.*—Not a valid obj ection to a surety to an appeal bond., that he was surety to the injunction bond also.</p>

<p>This was an appeal from the Superior Court of King George, county.</p> <p>Arnold, administrator of Scott, made a moiion against Bernard, on a forthcoming bond. The defendant pleaded orally that he had not forfeited his bond; and, on the part of the plaintiff, it was admitted that on the day of sale of the property mentioned in the bond, the defendant paid to the plaintiff the whole amount of the bond, except the sheriff’s commission; and on the other hand, it was admitted by the defendant, that he had not produced to the sheriff the property specified in the bond, at the day and place of sale.</p> <p>The Court gave judgment for the plaintiff on the bond, allowing a credit for the sum paid as above-mentioned.</p> <p>The defendant appealed.</p>

A writing purporting to be the last will and testament of Samuel Duff, was offered for probat, by the executors therein named, in the county court of Russell; and Rees Duff, a son of the deceased, appeared to contest the probat.

This was an appeal from the High Court in Chancery. Held: that Equity will relieve against judgments rendered by a Court of Raw. It has never been contended, that inferior tribunals may draw before themselves subjects -which have been determined in superior Courts.

<p>S. mortgages a parcel of 360 acres of land to B. to secure a debt due to him; then S. mortgages all of the same land, except 75 acres, to H. to secure debt due to him, these 75 acres being excepted and reserved out of this second mortgage, because the mortgagor was then in treaty with a third person for the sale thereof to him, which treaty was after-wards broken off; and then S. mortgages the whole parcel of 360 acres to C. to secure a debt due to him:</p> <p>Hem, 1. that H. the second mortgagee, has a right, as against Sisson the mortgagor, B. the first mortgagee and C. the third mortgagee, to insist that the debt due to B. shall be satisfied out of the parcel of 75 acres reserved out of the second mortgage to H. so as to leave that part of the subject mortgaged to H. untouched, and applicable to the satisfaction of the debt due him; and, 2. that C. the third mortgagee, has no right to call on H. the second mortgagee, to contribute, pro rate., to the satisfaction of the debt due to B. the first mortgagee.</p> <p>The proposition, that where “ a judgement is recovered against a debtor, and then the debtor aliens his lands to divers alienees by divers conveyances, all the debtor’s lands, in the hands of his several alienees, are alike liable to the judgement creditor, and the lands in the hands of the several alienees must contribute pro rata to satisfy the judgement,” stated by the court in Beverley v. Brooke, 2 Leigh, 426. doubted, but held not applicable to the present case.</p>

A special verdict was found in ejectment, setting forth that a grant issued to William Hall, the elder, for the land'■ lhe declaration mentioned; that he duly made and published his last will and testament, in writing, bearing the gist dáy of October, 1764, which was set forth in hcec verba, and among other devises and bequests, contained the following clause: “ Item, I give or let to my sons, Thomas Halt and Joseph Hall, my new dwelling, piantation, and the mill thereon,…

<p>This was an appeal from the Fredericksburg Chancery-Court.</p> <p>The bill was filed by MKson against Ratcliffe, to obtain the specific execution of an agreement, which had been entered into between them, for a lot at Fairfax courthouse. The opinion of Judge Carr, gives so full a statement of the circumstances of the case, and the grounds of argument, that no other report is necessary.</p>

.This case was adjourned 'from' the High Court of Chancery., The,suit was instituted in the County Court of Caroline, by Mr. Pendleton; and the bill stated, that Thomas Wyld, in order to .discharge a debt due to Ridderdale & Co., drew, on the first of May, 1753, a set .of bills on Messrs. Chauncey,.-Barclay & Co., merchants of Rondoni to whom he had before consigned a quantity of ginseng.

Some time in the year 1761, John & Robert Broddus, two planters in the county of Caroline, having determined to engage in trade, and to retail goods in partnership, and having no correspondent or acquaintance in Europe, applied to Archibald M’Call, the principal factor of a considerable Scotch house, carrying on trade and merchandize under the firm of John & William M’Call, and made a verbal agreement with him, the purport of which Broddus states to be, that they might take…

Doctor Philip Turpin exhibited his original bill, in the High Court of Chancery, against the Attorney-General, stating that the Directors of the Public Buildings, appointed by an act of the General Assembly, passed in the year 1779, “for the removal of the seat of government from Williamsburg to Richmond, did, by virtue of the powers vested in them, sometime in the year 1783, lay off about thirty acres of the complainant’s land on Shockoe Hill, for the use of the public, and…

In this case the following statement and opinion were delivered by the president, September 28th, 1811.

JYewton Berryman and James Dishman were merchants and partners at Port Royal, trading under the firm of Berryman Dishman, though it appeared, that, in fact, Dish-man had only permitted his name to be used as one of the firm, in order to give Berryman credit, and had advanced him about 500 dollars in money, which he was to receive back, with interest, without regard to the profit or loss of the trade.

<p>After a judgment against an executor or administrator as such, a fieri facias and return of nulla bona, an action against him alonem on his administration bond, could always* be maintained, without any previous suit suggesting a devastavit.</p>

This was an appeal from the Chancery Court of Lynch-burg; where William Irvine brought a suit against Archibald Robertson, only acting executor of William Brown, deceased, and surviving partner of Brown and Robertson, Boyd Miller, and Samuel Read.

<p>1. It seems, that a party, to whom a new trial is granted, may, at the next term, without claiming such trial, file errors in arrest arrest of judgment.</p> <p>2. In assumpassignor of a deratian for me»t ought to N the' <iedaration; and if it be omitted, judgmentmay be arrested.</p> <p>3. A count for money had and received, adjudged-good after verdict; although the sum received was-letfc blank.</p> <p>cry Sec antC) Darby v. Henderson and Duncan administrators of Drummond.</p>

<p>Detinue— Administrator. *-!! an administrator brines detinue, be is not bound at the trial, to produce the certificate for his obtaining letters of administration, unless he receives notice that it will be required.</p> <p>Parol Gift — Consideration — Evidence — Jury. † — Evidence of a communication between the father and his daughter’s deceased husband, as to the consideration on which a parol gift for slaves was founded, may he left to the jury.</p>

This was an appeal from the Superior Court of Buckingham, in which Court a judgment of the County Court had been reversed. The case was this. A forthcoming bond had been executed on the 14th day of March, 1821, by John C ought an, with Drury Childers and Charles Garrott, as his sureties.

<p>Detinue — Form of Judgment.* — In detinue, if the jury find for the plaintiff, the slaves, if to he had, or 2501. for each slave, and damages Id ; and the Court render judgment for the slaves, if to he had, and if not, the price found hy the jury, with the damages and costs, it is not error, [though no price or value he laid in the declaration],</p>

Brooks Baker, of the county of Charlotte, died in 1826, leaving a large estate, real and personal, and leaving his widow, and his daughter Mrs. Wills, the wife of James Wills, and four infant children of a deceased daughter Mrs. Spraggins, the wife of Thomas L. Spraggins, as his heirs and next of kin.

THIS was an action of assumpsit, instituted in the late district Court, holden at Hay market, by Humphrey Gwynn against John MiClenahan. The declaration contained three counts.

<p>Debt on Bond — Damages Need Not Be Laid in Declaration — In debt on a bond, damages need not be laid in tbe declaration or iound by the jury.</p> <p>Judgment for Sterling Money — Rate of Exchange. — Itis necessary on judgments for sterling money, that the Court should fix the rate of exchange.</p>

In this case, the record was brought up by the appellee, and Leigh, his counsel, moved for a dismission of the appeal, and that the fee to the clerk of the Chancery Court for the copy of the record, filed by the appellee, might be taxed in the bill of costs, as a part of the costs of defending the appeal.

Richard Johnston and Harry Gaines purchased in partnership several lots of land, for which leases had been given by the College of William & Mary.

UPON an appeal, allowed by a judge of this Court,l. „ , n , . r 1 Pi horn an order of the superior Court or chancery, oi the Richmond district, dissolving an injunction, (a.) The bill was exhibited by James Wilson and Stephen W. Trent, trustees, named in two deeds of trust, for Anne 7 # Copland, wife of David Copland; and the said Anne Cop- . , . , TrT., , „ . , . land, by the said James Wilson, her next friend, stating that David Copland, being justly indebted to Benjamin…

<p>By the act of 1785, advancements of real estate are only to be brought into hotchpot with real estate descended ; and personal advancements, only with personal estate• But the law has been changed, in this respect, by the revisa! of 1839.</p> <p>IN either rents nor projits of land, given as an advancement, ought to be brought into hotchpot. But where a father shall permit a child to rent out his land and to receive the rents thereof for his or her use, such rents shall be brought into hotchpot as an advancement of personal estate.</p> <p>A. charge made by a son-in-law, for nursing his father-in-law, in h:s last illness, where there was no contract, express or implied, ought not to be allowed.</p>

<p>Action on the case, for defendant having advised and procured a third person to institute a malicious prosecution against plaintiff for felony: Held, the action lies against defendant for advising and procuring such prosecution.</p> <p>In every such action, the declaration must allege that the prosecution was without probable cause; but that allegation relates to the state of the fact, that the prosecution was without probable cause, not to the state of the defendant’s knowledge that there was no probable cause.</p> <p>On general demurrer to a declaration, the court looks always to the substantial meaning of its allegations, to ascertain whether it states good cause of action.</p> <p>In an action on the case for advising and procuring a malicious prosecution, it is not material for the plaintiff to prove the exact "day of his acquittal as laid in the declaration, so that it appears to be before the action brought; and, therefore, a variance in that respect, between the day laid, and the day stated in the record produced to prove the acquittal, is not material; the day not being laid in the declaration, as part of the description of such record of acquittal, and being laid under a scilicet.</p>

Robert Bolling brought a writ of right in the Superior Court of Petersburg, against the Mayor, Aldermen and Commonalty of the town of Petersburg, and filed his count tor ecover “ one tenement, containing 2-5th acres of land with the appurtenances in the town of Petersburg, and within the jurisdiction of the Superior Court of Law aforesaid, and bounded by Boioden’s lumber house, on the west, by Appomattox river on the north. ” The tenants put in a plea according to the form…

This was a supersedeas to a judgment of the District Court of Richmond, by which a judgment of the County Court of Powhatan was reversed. Joseph Mayo, at the December term, 1805, made application to the Court of Powhatan County, for leave to erect a water grist-mill, on* Mahook creek, the bed whereof was stated to belong to himself, and that he owned the lands on both sides.

IN an action of assumpsit, “ Hugh Holmes complained °f Joseph Sexton, in custody &c., of a plea, for this, to W^C’ t^lat whereas, on the 4th day of March, in the year of our Lord 1804, certain articles of agreement were 7. , made, and entered into, by the said Hugh Holmes and Joseph Sexton, and a certain discourse had and moved, °f» and concerning a certain tract of land in the county °f Frederick, wherein and whereby it was agreed between them, that the said Hugh Holmes, on…

Richard Coleman, by deed dated the 25th April 1822, recorded in the county court of Spotsylvania in July 1823, conveyed to his cousin german, Josiah Samuel, his heirs, executors, administrators and assigns, in consideration of natural love and affection, all his lands, slaves, stock of every description, household furniture, and plantation utensils, reserving to himself the use and profits of the property, for and during his life. The conveyance was merely voluntary.

Pynes brought an action against Ross, for slandering his title to some slaves; and upon the trial of the cause, obtained a verdict and judgment for 5001. damages. The Court of Chancery granted an injunction, and awarded a new trial, before the District Court, with leave to the plaintiff to amend his declaration. On the second trial, there was a demurrer to the defendant’s evidence by the plaintiff, and the jury found a verdict for 10001. Vid. Wythe’s Rep. 71.

<p>IN an action of debt, instituted in the year 1798, on an administration bond, in the names of Hughes and others, justices of Henry county, who sued for the beneof Stephen Smith and Bird Smith, executors of Guy Smith, deceased, against James Lyon and Sarah his wife, (late Sarah Lindsay,) Abraham Penn, George Hairston, -and Jarrett Patterson, surviving obligors of Sarah Lindsa¥i (now Sarah Lyon,) John Lindsay, Abraham Penn, Qeorp'e Hairston, and Jarrett Patterson, the declaration set forth a bond, in the usual form, conditioned for the due administration of the estate of Jacob Lindsay, deceased, by the obligors, Sarah and John; and charged, as a breach of the condition, that in a suit, in the high Court of chancery, in behalf of the said Stephen Smith 4 t 1 and Bird Smith, executors of Guy Smith, deceased, against - ,. the said administrator and administratrix, they were directed by a decree of the said Court to pay to the said pia-int*®3 a certain sum of money “ out of the goods and chattels of the said Jacob Lindsatt, in the hands of the said J J J . administratrix to be administered y that sufficient goods and chattels, belonging to the estate of the said Jacob Lindsay, deceased, to satisfy the said decree, came to the ancl possession of the said administrator and ad-1 pninistratrix, but were by them eloigned, wasted, and . converted to their own use, whereby the said decree remained unsatisfied.</p> <p>P*ea “ conditions performed,” and issue thereupon. su^ having abated as to all the defendants, except George Hairston, a verdict was found for the plain- . r tiffs, assessing their damages to 326/. 5s., beside their costs ; “ and that goods and chattels, which were of Jacob Lindsay, deceased, in the writing obligatory aforesaid named, came to the hands of the said Sarah Lindsay, administratrix, and of John Lindsay, administrator, of Jacob Lindsay, deceased, to be administered, of the value of the damages and costs aforesaid, which they wasted f subject to the opinion of the Court upon a point reserved at the trial, via., “ whether this action could be maintained against the securities of Sarah Lindsay and John Lindsay, on iheir administration bond, upon the return of i no effects in the hands of the administrators’ by the sheriff of Patrick county, on a fieri fac/as■ which issued from the high Court of chancery on a decree which the plaintiffs in this cause had therein obtained against the said administrators, without first showing a devastavit in a suit against the said administrators ?”</p> <p>The district Court was of opinion that, on this point reserved, the law was for the plaintiffs, and therefore entered a judgment according to the verdict * from which the defendant, Hairston, appealed.</p>

THEODORICK BLAND and others, children of Theodorick Bland, deceased, and of Sarah, his wife,, also deceased, brought suit in the late high Court of chancery aga‘nst Thomas L. Lee, Peter S. Randolph, Anthony Thornton, and John Thornton, heirs of Thomas Ludwell ^ Lee. and others, who were trustees in a deed of marriage settlement between the said husband and wife, before tbeir marriage; by which deed, bearing date the 4th of December, 1772, sundry slaves, and other property,…

<p>Upon an adjourned case from the District Court held at Morgan Town.</p>

In January 1825, a mercantile house of Baltimore having recovered a judgement against Walter Selby of Jefferson, and sued out a writ of fieri facias thereon, which was levied on Selby’s property; and Selby having given a forthcoming bond for the delivery of the property at the day and place of sale, and having forfeited the bond; and an award of execution thereon, in the month of March following, being expected as a matter of course; Selby was under an urgent necessity to…

This was an action upon the case, brought by the appellant against the appellee, as high sheriff of Fairfax county, for refusing to permit him to vote in the election of members of general Assembly.

<p>This was a suit brought in the Staunton Chancery Court, by William Poage, against James Bell, William Bell, Samuel Clarice, and Frederick Imboden.</p> <p>The bill states, that on the 16th day of December, 1818, Imboden conveyed in trust to Thomas Taylor and Samuel Clarke, certain real estate lying in and adjoining the town of Waynesborough, to secure certain debts due to Ellis 8? Allan, Seymour Scott, Charles A. Jacob and Samuel Mordecai: that Imboden obtained an injunction to prevent the trustee Thomas Taylor, (who was authorised to act alone,) from proceeding under the said trust; which was afterwards dissolved. In consequence of this, the said Taylor proceeded to execute the trust created by the said deed, and exposed the said estate for sale, on the 15th day of April, 1818. At the time of this sale, it was not known that there were other incumbrances on the said estate, created before that under which it was proposed to sell. These incumbrances Were, a deed of trust for the benefit of Samuel Blackburn, which, at the date of the sale, had been purchased by James Bell; one, for the benefit of John M’Cue; an incumbrance for a balance duo the executors of- Rhodes, on account of the original purchase money of the said estate, or a part thereof; and a deed of trust for the benefit of William and James Bell. A general estimate of these incumbrances was made, and their aggregate amount rated at $ 23,000. This was explained to the persons present, and they were' informed that the purchaser must extinguish these previous incumbrances, whatever they might be, and pay such sum as be should bid, on account of the debts due to the said Ellis § Allan, and others. James Bell, being proprietor of the interest of Samuel Blackburn, and part proprietor of the interest secured by the trust deed for the benefit of William and James Bell, and having the control of that interest, bid $ 12,000 over and above the said previous incumbrances. The property was struck off to him; and he entered into arrangements to pay the creditors under the deed of the 16th of December, the sum of $ 12,000. Since that time, the said James Bell has extinguished the incumbrances of the said John M’Cue; so that it is now understood, that the security in the land is discharged. It is also understood, that William Bell has no longer any interest, having disposed of his to the said James.</p> <p>The said Imboden being largely indebted to the complainant, on the 7th of January, 1817, executed to Samuel Clarke, a conveyance in trust, embracing sundry parcels of land, and a variety of personal property, to secure the complainant’s debt. This debt being due and unpaid, and the said Imboden requesting the property to be sold, the trustee proceeded to sell the property conveyed in the said deed of trust, except the twenty acres of land, mentioned as “adjoining the land of John Guthrie, and the land of the said Imboden, being the residue of 42 acres conveyed to said Imboden by James Hays.” This land, the trustee was forewarned by the said James Bell from selling, he claiming a lien upon it, under the deed of the 14th of August, 1815, for the benefit of William and James Bell. The complainant, not wishing to have a contest, desisted, and it was not sold. Of the personal property, the waggon and teams, with a part of the gears, were not sold, because they were not to be found. Two stills, with the vessels belonging to them, and the moieties' of two carding machines, were not sold, because the said James Bell claimed them under the said deed of the 14th of August, 1815. A large balance remained due to the complainant, after this sale. James Bell directed the trustee under the deed of the 14th of August, 1815, to sell the 20 acres of land above-mentioned;, and the trustee advertised the same for sale. This land was not included in the deed of the 14th of August, 1815, because it was not “ in or adjoining the town of Waynesborough,” as other land intervened between it and the said town.</p> <p>The complainant also alledged, that the purchase of the said Bell was a complete extinguishment of his claim, under the deed of the 14th of August, 1815, because he became liable in equity to the payment of the previous incumbrances. The complainant caused his trustee to advertise the said 20 acre's of land, the stills, vessels, and the moieties of the carding machines.</p> <p>The bill prays, that the trustee in the deed for the benefit of William and James Bell may be restrained from proceeding on the said deed of trust, until the further order of the Court; and that the said Bell’s claim to the said 20 acres of land, to the stills, vessels, and carding machines, so far as it conflicts with the rights of the complainant, may be annulled, &c.</p> <p>An injunction was awarded.</p> <p>William and James Bell severally answered, denying that the purchase by James Bell, under the deed of trust in favor of Ellis Allan, was an extinguishment of their claim, under the deed of the 14th of August, 1815: that the 20 acres of land, mentioned in the bill, were embraced in that deed; because, at the time of its execution, the said land did adjoin the town of Waynesborough; though it is said, that it became afterwards separated from the town, by hnboden’s selling an intervening piece of land. As to the stills, vessels, and carding machine, they deny that the complainant had any title to them, because they are distinctly embraced in the trust deed of August, 1815; and they are moreover embraced in the trust deed in favor of Ellis ¿i’ Allan. The distillery and carding machine were erected and in operation, at the time when the said deed, last mentioned, was made, and were a part of the freehold which passed under that deed; and if so, they were sold to the respondent James, by the trustee in that deed, and passed to him with the rest of the freehold.</p> <p>The respondent James Bell denied, that he made the purchase aforesaid, upon the terms stated in the bill. The terms of the sale were not, as alledged, that the purchaser should pay off the prior incumbrances. Those terms only required, that the purchaser should pay the sum of money that he bid, and take such right as the trustee could lawfully convey, these prior incumbrances being known, &e.</p> <p>Depositions were taken; and the Chancellor dissolved the injunction and dismissed the bill. Poage appealed.</p>

The defendant was indicted at the October term 1845, of the Circuit Superior Court of Law and Chancery for the county of Monroe, “ for that he the said William Connell, jailor of Monroe county, and who hath the care, charge and custody of the jail of Monroe county, on ^e 27th day of August, in the year of Christ 1845, at the county aforesaid, and within the jurisdiction of the Circuit Superior Court of Law and Chancery aforesaid, did permit and suffer one James K.…

An information was filed against the defendant, in the Circuit Superior Court of Law and Chancery, for the county of Pittsylvania.

James Gilliam, executed his bond,.dated the 28th January 1819, to Charles Gilliam for 2000 dollars, payable two years after the date. Charles Gilliam, by assignment expressing that it was made for value received, and dated the 11th February 1819, assigned the bond to, Charles Clay.

The prisoners were jointly indicted with one Franklin Powell, for the murder of William Martin, at the May term 1846, of the Superior Court of iSpottsylvania. When they had been arraigned, and had pleaded, they claimed to be tried separately; which was accordingly directed.

Predham Moore sold a parcel of land in Campbell to John Lee, for 8000 dollars, and executed a conveyance of the same to him, but the conveyance was never recorded. Lee, before he had paid any part of the purchase money to Moore, sold the land to Hancock, or rather be exchanged it with Hancock for real property in Lynchburg; but Lee neither conveyed the land to Hancock, nor put him in possession of it.

Castleman As to Strode. The complainants have a right, under his warranty to Veitch, to indemnification from him; and they have, moreover, a specific lien upon the property conveyed by deed from Strode to Lee, as trustee, for the benefit of Mary Wormeley. This deed conveys certain land in Kentucky to the said Lee, as trustee aforesaid, in lieu of the land which he had sold to Veitch, under the power in the marriage settlement, and which Veitch had sold to the complainants.

Ayres recovered five several judgements against Bewellin, in the county court of Bedford. Held: that the county court erred in rendering five several judgements upon one notice; and in giving'jfoe sets of costs upon one motion, whereas it should have rendered but one judgement for the several debts claimed, and given but one set of costs: therefore, the judgements of the county court were reversed, and one judgement rendered…

William A. Clere was tried before an Examining Court in the county of Franklin, on the charge of larceny of a slave; and was sent on for trial before the Superior Court. The indictment found against him contained four counts: 1st. For larceny of the slave. 2d. For carrying the slave from one county to another, without the consent of the owner, with a view to defraud him. 3d. For enticing a slave to run away from his owner. And 4th.

In 1813, Joseph Blythe of South Carolina, being the owner of the equitable estate of an undivided moiety of two parcels of land in the county of Monroe, Virginia, one containing about 770 acres called The Red Springs, and the other called Greenwoods adjoining the first, and containing about 200 acres, which moiety Blythe had purchased at a sale made by commissioners of the superiour court of chancery,' under authority of a decree of that court, but the commissioners had not…

<p>A prisoner having been tried for a felonious offence, and judgrnent having been arrested because the verdict against him was too uncertain and defective to authorize a judgment thereon, it was held that, in this case, the prisoner might be again tried on the same indictment.</p>

An information was filed against the defendant, in the Circuit Superior Court of Law and Chancery for the county of Fluvanna, charging that he, “on the 31st day of August, in the year 1844,” &c. “did maliciously, contemptuously, and of purpose disturb a congregation assembled for the purpose of religious worship, at,” &c. To this information, he pleaded not guilty; but the jury, by their verdict, found him guilty, and assessed his fine at ten dollars.

The prisoner, a free mulatto man, was tried before the Superior Court of Chesterfield, for an attempt to commit a rape on a white woman ; was found guilty and sentenced to be hung. Various exceptions were taken by the prisoner during the progress of the trial; but it is only necessary to notice the second.

<p>On the 27th day of October 1845, the prisoner was remanded by the Examining Court for trial before, the Superior Court on a charge of felonious homicide, f On the 28th day of January 1846, the clerk of the County Court issued a venire facias under the law as it then stood, commanding the sheriff to summon for the trial of the prisoner, twelve freeholders of the neighbourhood of the place where the homicide was alleged to have been committed.</p> <p>■ On the 24th day of February, in the same year, an act was passed by the General Assembly, which directed, that thereafter in all prosecutions for offences punishable by death or confinement in the penitentiary, the venire facias should command the sheriff, or other officer charged with its execution, to summon twenty-four free- . • holders of his bailiwick, residing remote from the place where the offence is supposed to have been committed ; prescribed a new mode of selecting the jury; and reduced the number of peremptory challenges.</p> <p>After the passage of this act, to wit: on the 6th day of April 1846, the clerk of the County Court issued another venire facias, conforming to its provisions. The sheriff executed and returned both writs. On the 6th of May following, the prisoner was indicted in the Superior Court, tried, found guilty, and sentenced to seven years confinement in the penitentiary.</p> <p>When the jury for his trial were about to be empanneled, the prisoner moved the Court to quash the venire facias last issued, and to make up a jury from the veniremen summoned under the first venire facias, and bystanders; and to allow him peremptory challenges to the number of twenty: the new law having reduced the number of peremptory challenges to eight. This motion was overruled by the Court, and the prisoner was tried by a jury formed and empanneled according to the provisions of the before mentioned act. ;</p> <p>On the trial, a witness was produced on the part of the Commonwealth, who was objected to by the prisoner, on the ground that his religious opinions disqualified him from being a witness. Upon interrogatories put by the prisoner, and voluntarily answered by the witness, he said, “that he believed in a God, the Creator, and Governor of the Universe, but did not believe that mankind would be rewarded and punished in a future state of existence, for their good and evil actions in this life; but that offences will meet their punishment here.” The Court being of opinion, that the Constitution and Bill of Rights secure to every citizen perfect freedom of opinion in all matters of religion, and that to deny the capacity to testify as a witness in a Court of Justice, on account of religious opinions, would operate as a restraint on the freedom of opinion, secured by the Constitution, overruled the objection. To these opinions of the Court, the prisoner excepted, and applied to the General Court for a writ of error, which was.awarded.</p>

The Rev. William S. Plumer was summoned to the Husting Court of the City of Richmond, to shew cause why he should not be fined for refusing to give in to the commissioner of the revenue, a list of his taxable property and income.

The prisoner was indicted in the Superior Court of Rockbridge, for the murder of John Painter. The indictment charged that the mortal wound was inflicted on the 7th of November 1845, and that the deceased languished “ from the said 7th of November, until the 8th of November in the year aforesaid, on which said 8th day of May, in the year aforesaid,” the said John Painter died.

This was the sequel of the case of Chowning v. Cox, which was before this court in February 1823, and is reported 1 Rand. 306. A reference to that report will be necessary in order to understand, fully, the report of the subsequent proceedings.

Peler M. Garner, Mordecai Thomas, and Crayton J. Loraine, were indicted at the September term 1845, of the Superior Court for the county of Wood. The indictment contains three counts: The first, charges that the prisoners did feloniously entice, advise and persuade six slaves, the property of John H. Harwood, to abscond from his possession.

In March 1824, James Robertson exhibited a bill against Thomas Hogshead, John Hogshead and James Cochran, in the superiour court of chancery of Staunton, setting forth, that in the year 1817, Robertson made a contract with Thomas and John Hogshead, for the purchase of a parcel of 424 acres of land in Augusta, then belonging to their father, Michael Hogshead, for 6360 dollars, which was a high price,—Thomas and John, the sons, being the agents of Michael, the father, in…

Sims made application to the county court of Madison, to have a new road opened “ from Michael Utz’s to Hughes’ river” in that county, without alleging, that the way was wanted for the convenience of travelling to any of the places mentioned by the statute concerning roads and landings, 2 Rev. Code, ch. 236. § 1. p. 233.* And thereupon, the court appointed viewers, to view the proposed road, and to report to the court, the conveniences and inconveniences, as well public as…

Timberlake having recovered a judgement against Stanard, for debt and costs in the county court of Spottsylvania, sued out a writ of fieri facias thereon, which was returned nulla bona: and thirteen years after the return of that execution, without any proceeding in the interval, he sued out a capias ad respondendum on the judgement; which being served on Stanard, he delivered property to the sheriff in discharge of his body, and gave a forthcoming bond for the delivery of…

Detinue for four slaves, brought in May 1819, by Thomas against Lynch, in the circuit court of Henrico. Declaration in the usual form. Plea, the general issue. At the trial, Lynch filed two bills of exceptions to opinions of the court. 1. The plaintiff offered in evidence, the deposition of one Wilson, which had been taken under a commission, de bene esse.

John Ford and John Thornton were indorsers of a promissory note, for 540 dollars, at sixty days, made by William Gregory, and discounted for his accommodation, by the bank of Virginia at Fredericksburg. Gregory died before the note came to maturity. He had, at the time of his death, a sum of money in the bank, exceeding the contents of his note.

This was an appeal from the Fredericks-burg Chancery Court. The bill was filed by Allison against Rat-cliff e, to obtain the specific execution of an agreement, which had been entered into between them, for a lot at Fairfax; courthouse. The opinion of Judge Carr, gives so full a statement of the circumstances of the case, and the grounds of argument, that no o'ther report is necessary.

Samuel Dryden was appointed clerk of the county court of Kanawha on the 11th May 1812, and thereupon, with Andrew Donally his surety, executed… Held: that the condition of neither bond extended to the defaults complained of, and that the defendants in the motions, respectively, were no wise bound by the bonds for Dryden’s faithful collection, accounting for and paying into the treasury, the public taxes by him collected and received ; and for that reason, without giving any…

By deed, dated the 25th November 1809, William PennocJc late of JYorfolJc, conveyed and assigned to Maitland, Armistead and Wilson, trustees, and the survivors or survivor of them, all his estate real and personal whether the same were in Virginia or elsewhere; upon trust, that the trustees, or the survivors or survivor of them, should collect all the debts due or to become due, to PennocJc, for or on account of any matter or thing prior to the date of the deed, and should…

Upon the complaint and at the instance of Hugh Camp-hell, one of the partners in the mercantile house of W. H. Kyle Co. two justices of the peace of the county of Amelia, issued an attachment against the goods and chattels of Daniel Connelly of that county, for a debt which had been contracted by him to that house but had not yet become payable, under the 14th section of the statute concerning attachments &c. 1 Rev. Code, ch. 123. pp. 478,9.* The process,—reciting that II.

Richard Byrd late of York, by bill of sale dated the 22d March 1805, expressed to be in consideration of 377 dollars paid him by Francis Bright, conveyed to Bright two slaves, named Sam and Tom, The fact was, however, that Byrd was indebted to Bright in the sum of 377 dollars, and that the bill of sale, though absolute on its face, was intended and delivered as a security for the debt) and, accordingly, Byrd continued in uninterrupted possession of the slaves.

At April term 1827, the grand jury presented Word and several others, “ for unlawful gaming at cards at H. Lipscombe’s tavern in Maysville in the county of Buckingham within six months [then] last past.” The court immediately issued process, returnable instanter, summoning the persons presented, “ to answer a presentment of the grand jury made against them at that term, for unlawful gaming at cards”— without specifying, as the presentment does, when and where the offence…

Case adjourned from the circuit court of Albemarle. The case, and the questions adjourned to this court, were stated by the circuit court, in the following words : “ Upon a presentment against the defendant Garth, for unlawful gaming at cards, at the house of I. Raphael, by winning more than twenty dollars in twenty-four hours—after instructions had been applied for by the attorney for the commonwealth, in these words, to wit, that if the jury should be of opinion, that the…

Osiander was indicted for grand larceny in the circuit court of Cabell, tried and convicted, and sentenced to two years imprisonment in the penitentiary.

Philip Vass was indicted for the murder of Henry Polly in the circuit court of Halifax, tried, convicted of murder in the second degree, and sentenced to ten years imprisonment in the penitentiary. It appeared at the trial, that the deceased was the prisoner’s overseer, and was first seen, after he received the wound of which he died (a stab with a knife), in the prisoner’s house.

Case adjourned from the circuit court of Washington. The circuit court, at the instance of the attorney for the commonwealth, made a rule on Charles Tate, to shew cause why an information, in the nature of a quo warranto, should not be filed against him, for acting as a justice of the peace for the county of Washington, after having acted as deputy sheriff of the same since his qualification as a justice.

Case adjourned from the circuit court of Greensville. An information was filed against Maclin in the circuit court, for knowingly, wilfully, and without lawful authority, killing and destroying two dogs belonging to one Turner, against the form of the statute in such case made and provided.* The defendant demurred generally.

Case adjourned from the circuit court of Fauquier. The county court of Fauquier, at June term 1820, proceeded to make up, in its minutes, an account of expenses incurred by the court and properly chargeable to the county and remaining unpaid, and to levy the amount due on the tytheables of the county ; and among others, it admitted and made the following charges against the county, viz. “ To E. D. late sheriff of Fauquier, per account, 240 dollars—To E. D. late sheriff per…

Case adjourned from the circuit court of Henrico. Upon the information and complaint of Moses Lipscomb, that Matilda Tarikersley had harboured and employed his slave, knowing her to be a runaway, contrary to the statute in such case made and provided, the mayor of Richmond issued a warrant against Tankersley requiring her to appear before him or'some other magistrate of the city, and shew cause, if any she could, why she should not be fined, and otherwise proceeded against,…

A,copy of, the last will and testament of Richard Povall deceased,' and of the proceedings had for the proof thereof in the court of probat for the parish of Ascension in the state of Louisiana, was offered by Francis Povall, for probat in this court.

A copy of the last will and testament of George Mutter late of Woodford county in the state of Kentucky deceased, and of the probat thereof in the county court of Woodford, was offered for prohat in this court by Todd; and the copy was duly authenticated according to the provisions of the act of congress of May 26. 1790, 2 Bior. 102.

Case adjourned from the circuit superiour court of Wood. At April term 1832, the grand jury found an indictment against Jlgness Beeson for a nuisance.