Volume 31 — Virginia Reports

<p>This case was heard at Staunton, but was decided in Richmond.</p> <p>By deed bearing date the 4th of October, 1866, and duly recorded on the 81st of December, 1866, M. G. Harman and wife conveyed to Robert C. Eve a certain tract of land in the county of Augusta, on both sides of the McAdam road, stated to contain four hundred and twenty-nine acres and three roods, it being the same land granted to the said M. G. Harman by Robert R. Harnsberger and wife, by deed bearing-date the 22d of February, 1862. The consideration expressed in the deed was their love and affection for their daughter, Willie H. Eve, and her husband, the said Robert C. Eve; and it was upon trust for the use and benefit of these parties during their joint lives, but free from any incumbrance Or charge of the said Robert O. Eve; and iqpon the death of either, for the joint benefit of the survivor and the children of Willie H. Eve during the life of the survivor, and then to the right heirs of said Willie U. Eve. And Robert C. Eve was empowered, with the consent of the said M. G. Harman, to sell the property and reinvest upon the same trusts.</p> <p>In 1872 Eve sold and conveyed to the Valley railroad conqpany so much of said land as is occupied by the said railroad track, measuring fifty feet on either side from the centre line of said track, and containing about seven acres.</p> <p>On the 28th of October, 1874, Eve made a contract with William Jordan to sell him the said tract of land, then stated to be four hundred and twenty-two acres, for which Jordan was to convey to Eve another tract of land called the Bagly farm, a certain lot in Staunton, and execute to him his notes for $10,210 in five equal annual instalments, with six per cent, interest from date, payable annually. And Eve and wife executed a deed, in which M. GL Harman joined, convey-in'g the land to Jordan, and reserving a lien upon the land; and Jordan conveyed the Bagly farm and Staunton lot to Eve, and executed to him his five bonds, each for $2,042, at one, two, three, four and five years, bearing interest payable annually. The deed from Eve to Jordan, though delivered, has not been put upon record and is not in the record.</p> <p>In October, 1876, Eve as trustee, instituted a suit in -equity in the circuit court of Augusta county against ■Jordan, and after setting out in his bill the foregoing facts, he stated that Jordan’s first bond, and the one year’s interest on all of them had been long since due, and the second bond and the interest on the other three would be soon due; and he prayed that his lien upon the land might be enforced by a sale thereof, and from the proceeds of sale the amount due him might be paid, and provision made for the payments that were to fall due; and for general relief.</p> <p>Jordan answered the bill. He says he bought the land at $55 per acre, and i.t was represented by Harman, who, as agent of Eve, made the contract, that there were four hundred and twenty-two acres in the tract, and the amount of purchase money was paid on that basis; that he had discovered that this quantity was what was contained in the tract before the sale to the railroad company, and he insists he is entitled to an abatement for so much of the land as had been previously sold by Eve to the railroad company.</p> <p>He further says, that the deed from Harnsberger and wife to Harman acknowledges the receipt of one-third of the purchase money in cash, and two-thirds in due paper, and reserves a lien on the land; that there were a number of these bonds transferred to Harnsberger, and he believes the most of them are still unpaid; and he asks that an account may be ordered to ascertain how muela of said four hundred ^ twenty-two acres of land has been heretofore conveyed to the Yalley railroad company, and the relative value thereof as compared with the residue of the tract; and to ascertain whether any, and if so which of the claims assigned by Harman to Harnsberger still remains unpaid.</p> <p>In November, 1876, the court made a decree referring the cause to Master Commissioner J. W. Gr. Smith, with directions to take an account showing:</p> <p>1. Whether there is any lien on the said land on account of the lien reserved in the deed therefor from Harnsberger to Harman, and if any such lien, the amount and extent thereof.</p> <p>2. Whether there is any deficiency in quantity of land sold by Eve - to Jordan; and if there is a deficiency in quantity, he will ascertain the extent thereof, and the abatement to be made in the .purchase money by reason of such deficiency.</p> <p>3. Any other matters deemed pertinent by himself or required by the parties to be so stated. And the commissioner was authorized to require the county surveyor to make such surveys of the land, &c.</p> <p>In February, 1877, Commissioner Smith returned his report. On the first subject he says that Harnsberger’s lien on the land was duly released by deed of record in the clerk’s office of the county court of Augusta.</p> <p>On the second subject he says he directed the county surveyor to make a survey showing what deficiency there was—first, by reason of the conveyance by Eve to the Yalley railroad company; and, second, by reason of a portion of the land being occupied by the Yalley pike. Upon this survey, and evidence taken before him, he reports that in respect to the railroad, Jordan is short in land to the amount of one acre, one rood and 5-45 poles, which, at $55 per acre, would be $70.60, for which Jordan would be entitled to a credit as of October 29th, 1874.</p> <p>That Jordan likewise claims credit for the value of the land occupied by the Yalley pike or McAdam road. And the commissioner not undertaking to decide the question of law, reports, that if Jordan is entitled to this credit, then he is additionally short of land on this account to the extent of four acres, one rood and twenty-one poles, which, at $55 per acre, is $240.</p> <p>Under the third'head,-the commissioner says, he deemed it pertinent and he was requested by Jordan to inquire into all judgment or other liens binding on said land as belonging to M. G-. Ilarman at the date of recordation of the deed from Harman and wife to Eve, trustee, viz: December 31st, 1866. Up to this date he found, upon examination, twenty judgments against Harman, regularly docketed. Of these there were twelve marked in the docket satisfied, or for benefit of said Harman. He makes a statement of each of the eight not so marked, the whole amount of which, with interest up to March 1st, 1877, is $9,845.85. Of these, however, they are in nearly, if not quite all, cases in which Harman was a surety, and one for $5,188.39, the commissioner says, if not already paid entirely, will be paid out of the assets of J. M. McCue, the principal in the debt; and of another for $922.05, the owner stated in his deposition the principal in the debt is, he believed, good for the money, and he has no idea that Harman will have to pay the money. These two judgments, amounting to $6,110.44, the commissioner deducts from the $9,845.85, leaving only $3,785.40 as lien indebtedness on the land.</p> <p>The commissioner further reports that he has been called upon by the plaintiff’s counsel to state specially what real estate, and its value, said M. G-. Ilarman owned on the 31st of December, 1866, other than that . conveyed to Eve, trustee. And he finds that exclusive of the land bought by Jordan of Eve, trustee, the said M. Gr. Harman stood assessed on the commissioners’ books of December 31st, 1866, with real property in Augusta county in the value of $122,201.50; and it was proved that he had in the city of Staunton real estate valued at $20,000.</p> <p>It appears from the assessor’s land books, that for the years 1867 to 1872, Eve, trustee, is assessed with four hundred and thirty-nine three-fourth acres of" land, and for 1873, he is assessed with four hundred and sixteen acres (thirteen acres having been transferred to the Yalley railroad company, as per note on assessor’s books.)</p> <p>Jordan excepted to the report—</p> <p>First. 33 ecause he should have been allowed a deduction for six acres sold to the railroad company, instead of one acre and a fraction allowed by the commissioner ; and for the bed of the McAdam road four acres, making in all ten acres.</p> <p>Second. That the plaintiff sold to Jordan four hundred and twenty-two acres of land, the title good, and free from all incumbrance. The commissioner reports judgments against M. Gr. Harman prior to his conveyance to the plaintiff amounting to. $9,845.86, which now stand liens upon the land; and it was the duty of the plaintiff to remove them before he can demand the payment of the purchase money.</p> <p>Third. The McAdam road, if merely an easement, still it is an incumbrance, and should be removed by the plaintiff, or Jordan should be compensated for it. 1</p> <p>The cause came on to be heard on the 16th of June, 1877, when the court overruled all the exceptions of" the defendant and confirmed the report of the commission er, and declaring that the court proposed to see to the proper disbursement of the purchase due from Jordan; that Jordan should pay to the general receiver of the court the purchase money then due, viz: $4,819.12, with interest on $4,084.00 from the 29th of October, 1874, subject to a credit of $70.60 as of that date, for the deficiency on the land, within ninety days from the rising of the court; and if not paid, commissioners named were appointed to sell the land on terms stated in the decree. And Jordan thereupon applied to this court for an appeal; which was allowed.</p>

*This case was heard at Staunton, but was decided in Richmond.

This case was heard at Staunton, but was decided at Richmond. It was a suit in equity in the circuit cout of Kelson county, brought in July, 1877, by Daniel M. Harris against his wife, Sarah C. Harris, for . a divorce a vinculo matrimonii, on account of desertion. There was no doubt that Mrs. Harris had left her husband’s house some fourteen years before the suit was instituted, and had not returned.

<p>This case ivas heard in Staunton, but ivas decided at Richmond.</p> <p>Edward Erwin, of the county of Augusta, died prior to February, 1816. At the time of his.death he owned, among other property, about eight acres of land lying onMossey creek in said county, on which he had erected a grist-mill and saw-mill, both of them operated by water from a dam built across the creek, and drawing the water by separate channels. By his will, which was published in January, 1813, he gave one-half of- this property to his son James, and the other half to his wife and small children, of whom there were two, one named Hannah, who afterwards married Abraham Hanna, and the other named John. In September, 1818, James Erwin sold and conveyed to John Landes his half of this property. In January, 1827, John Landes sold and conveyed to Abraham Hanna “ one-half of a certain lot of ground, including -one-half of the interest of the saAv-mill, forebav and part of the tail race; also the use and benefit of the Avater for said saAv-mill, AArhen it can be coirveniently spared from the grist-mill so as not to do it any injury—that is, the grist-mill—said lot of ground to be occupied for no other purpose than for saAV-logs and planks.” This gave to Hanna in his OAAm right onelialf and in right of his wife one-sixth of the saAv-mill property. In February, 1835, Landes sold and conveyed to John Envin his half of the mill property, except Avhat. he had conveyed to Hanná. And in September, 1836, Hanna and wife coirveyed to said ErAA-in the interest of Mrs. Hanna in all the property except the saw-mill property. Mrs. Envin died in 1851, and by her Avill gaAe her interest in the A\diole property, mill and saAv-mill, to John Erwin ; so that John Envin then oAA’ned the AA'hole of the grist-mill property, and two-sixtlis of the saw-mill; and Hanna and Avife oAvned the other four-sixth in the saw-mill property.</p> <p>"When EdAvard Envin died there was one pair of burrs and one pair of choppers in the mill, and this continued until the purchase by John Envin from Landes and Iianna and wife. He then put in another pair of burrs, and probably added other improvements. But although it had always been the ease that the mill was understood to have the preference to the water when there was not enough for both, no difficulty seems to have occured between the owners of the mill and saw-mill in relation to it.</p> <p>By deed bearing date January, 1851, John Erwin and wife conveyed to James T. Clarke, Anthony Miller and Jefferson Miller “ all their right, title and interest, both present and prospective, to and in a certain merchant-mill property and saw-mill property situated upon Mossey creek, in the county of Augusta, bounded as follows, viz :” setting out the boundaries, “ containing eight acres, more or less, with all and singular the appurtenances thereto belonging or in anywise appertaining to said interest conveyed in the above premises.” And they set out the interest conveyed as five-sixths of the mill property, the other sixth on the death of Mrs. Erwin ; and one-sixth of the sawmill property and another sixth on Mrs. Erwin's death, and in the meantime they were to hold this interest without rent. “ The water right conveyed with the said merchant-mill property to be not less than the quantity of water which a chute five feet two inches by three and a half inches under a three feet head of water or the equivalant, would discharge—the preference to the above extent over other right, in point of water,"having always been conceded to said merchant-mill property, both before and since the death of the testator, from whom the rights were derived.”</p> <p>The vendees, Clarke, Miller and Hall, purchased this, property for the purpose of establishing a paper-mill, and soon after their purchase they proceeded to convert the mill into a paper-mill. In doing this they changed the large waterwheels which propelled the machinery of the mill, which had been breast wheels, into overshot wheels, which required the water to he taken from the dam at a higher level, and which were more readily affected by the lowering of the Avater in the pond; and very soon a controversy arose betAveen those parties and Hanna, Avho was operating the saAv-mill. In August, 1851, they filed their bill in the circuit court of Augusta county, in aaTlícIi they set out their right to the Avater as granted by Envin and Avife, and alleged that this preference of the mill to the Avater had always been recognized, and Avas recognized in the deed from Landes to Hanna; and that said Hanna was so using the AArater at his saw-mill as to interfere most materially with the Avork of their paper-mill, and inflicting upon them irreparable damage. And they prayed' that he might be enjoined from using the Avater from said dam in such .way as to stop or obstruct their machinery. And as some of the purchase money had not been paid, they prayed that Envin might be restrained from collecting it until he can clearly establish plaintiff’s right under his deed to the use of the water as provided.</p> <p>Hanna answered the bill at much length. He denied that there eAer had been a usage giving preference to the water to the grist-mill to the extent ErAvin had undertaken to commy to the plaintiffs. He says that the parties being interested in both mills, it Avas usual in seasons of extreme drought, and when Avater Avas scarce, and both mills could not run at the same time, to give preference to the grist-mill. These occasions, however, Avere A'ery rare, the supply of Avater being sufficient at almost all seasons for both mills. Under these circumstances and with this understanding respondent accepted the deed from Landes. He insists that the provision in that deed was intended to express nothing more than that, for the benefit of the grist-mill, a sufficient supply of water to keep it running, as it then was, should be yielded to it; so that the grist-mill might not be injured in the business it was then- doing. He says that since the Jear 1827 and down to the obtaining the injunction *U SU^’ ^ie ^aS euj°.Ye<^ the uninterrupted use of such a supply of water from the dam, which supplied both the grist and saw-mill, as to keep his saw-mill constantly at work, except at rare and remote intervals of time, when extreme drought had so reduced the flow of water, as that it became necessary for a short time to suspend sawing, in order that a head of water might bo accumulated. He insists that the paper-mill requires much more water than was required by the merchant-mill under any of the arrangements of wheels and machinery that has existed since 1829. And he insists that the water right granted by John Erwin to the plaintiff, to use as much water as a chute five feet two inches wide and throe and a half inches deep under a head of three feet, is a direct infringement of the rights of respondent; that such a chute will discharge more water than ordinarily flovrs in the stream. And he asks that commissioners may be appointed to fix and establish a- permanent water mark to regulate the rights of the parties.</p> <p>A great many depositions were taken by both parties, and of course their views and opinions were conflicting. The cause came on to be heard on the 7th of July, 1856, when the court perpetuated the injunction as to Hanna, with costs; but dissolved it as to Erwin, and dismissed the bill as to him. But the decree was to be without prejudice to the right of Hanna to sue at law, &e. And thereupon Ilanna applied to this court for an appeal.</p>

This case was''heard at Staunton, hut was decided at Richmond. It was a suit in equity in the circuit court of Augusta county, brought in February, 1875, by John Wine against R. M. Markwood, John Landes and Sampson Pelter, to enforce a judgment which the plaintiff, as assignee of Pelter, had recovered against Markwood and Landes.

This case was heard at Staunton, but was decided at Richmond.

<p>in 1858, sold and conveyed to TV a tract of land for i0, payable in fifteen years, with interest payable annu- and on the same day TV conveyed the land and another tract called R, in trust to secure the payment of the debt, and it was provided in the deed that when 815,000 of the principal of the debt was paid, the lien on R should cease and be released. In 1862, TV, having ascertained that J, the holder of his bond, would receive Confederate money iu payment of his debt, sold land he held as trustee of his wife and children, and paid J $21,000. One payment of $2,900 was made by TV on the 2d of May, 1863, on the principal of the debt, out of the trust fund of his wife and children. Between the recording of the deed of trust and said payment by TV four' judgments had been recovered against TV—Heli> : D and J, . $42,5C ally:</p> <p>1. For the payment of the principal of the debt made by TV out of the trust fund of his wife and children, there is an implied trust in their favor on the tract called R.</p> <p>2. This implied trust refers back to the date of the trust deed to secure the payment of the debt, and has priority over the judgment creditors, though the judgments were recovered before the money was paid.</p> <p>3. The trust extends to the interest as well as the principal of the payment made out of the trust fund, and the interest commences from the time of the payment.</p> <p>4. Though the payment by TV was made in Confederate money, yet it having been received by J at par for his good debt, the payment is not to^be scaled.</p> <p>5. TV is not a competent witness to prove his payments of the debt made out of the trust fund of his wife and children ; and this, though the objection to his competency was not made until four questions had been put to him on his examination-in-chief.</p>

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

<p>By the Charter of the city of Portsmouth, which was passed March the 11th, 1873, commissioners of the revenue for the city were to hold their office for two years from a day named, on which they should enter on their office. By the act approved March 16th, 1875, ch. 206, p. 215, it is provided that there shall he commissioners of the revenue for every county and one for each city, which said commissioners of the revenue shall hold their office for four years from a day named, on which they should enter upon their office—Held :</p> <p>1. Upon a consideration of said last act, that it applies to all cities as well as counties, including the city of Portsmouth, and was a repeal by implication of the provision of the charter of the city of Portsmouth in relation to the duration of the office of commissioner of the revenue.</p> <p>2. That a commissioner of the revenue for the city of Portsmouth, who was elected and who qualified in 1876, was entitled to hold his office for four years, unless sooner removed.</p>

This was a petition to the judge of the circuit court of [Fairfax county, filed in January, 1874, by Charles AY. Batcliffe, to have a judgment by default which had been recovered against him in said court in November, 1866, by C. B. Anderson, reopened and scaled. The judgment was for $300 with interest from June 6th, 1833, and was founded on a bond for that sum, which the petitioner alleged was given on a Confederate contract.

This case was before this court in 1874, and is reported in 25 Gratt. 553. When the cause went back to the circuit court of Brunswick that court referred it to a commissioner to take an account of the administration of the executor, John H. Lewis, upon the estate of William B. Price, and of the debts of Price with their priorities. The commissioner returned his report in April, 1877, with exceptions thereto filed by the plaintiffs and two other parties creditors of Price.

This was an appeal from the decree of the corporation court of the town of Danville made on the 6th of August, 1873, in a cause in which Kirkland, Chase & Co. were plaintiffs and William H. Bruñe and others were defendants. The plaintiffs sought to attach the effects of Bruñe in the hands of parties in Danville, and among these was a claim upon the Danville Manufacturing Company, which had been assigned to Bruñe, and by Bruñe to L. Whitridge in trust for Brune’s creditors.

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

This was a suit in equity in the circuit court of ■Louisa county, brought by Charles H. Michie against James M. Vest, George H. Bramham, and the executor of John R. Quarles to enforce the payment of the balance of purchase money of land sold to Bramham by Michie, and afterwards sold by Bramham to Vest.

In the spring of the year 1868, Daniel Malone, of the county of Dinwidclie, died intestate, and in May of that year Alexander Donnan qualified as his administrator. In September, 1868, Roberts’ executor instituted a creditor’s suit in equity against the administrator and heirs of Malone for a settlement of the account of the administrator, and to subject the real estate to the payment of the debts of the deceased.

This was an action on the ease, in the circuit court of the city of Petersburg, brought in April, 1877, by 13. E. Sutherland against the*01d Dominion Insurance Company, upon a policy of insurance issued by that company on the 18th day of October, 1876, in favor of the plaintiff, upon his storehouse and stock of goods therein, situated in the county of Dinwiddie.

This was an action on the case in the circuit court of Halifax county, brought in July, 1873, by Moses Morris, against the Richmond & Danville Railroad Company, to recover damages for an injury which he alleged he had sustained by the negligence of the company. There ivas a verdict and judgment in favor of the plaintiff for $1,500. The defendant took an exception to a decision of the court overruling their motion for a nerv trial, and obtained a writ of error from this court.

In June, 1873, Joseph Thornton presented his hill in equity to the judge of tlie county court of Fairfax, in which he stated that W\ II.

This was an action of assumpsit in the circuit court of the city of Richmond, brought in June, 1874, by Slaughter F. Ficklin, executor of Benjamin F. Ficklin, against Eugene Carrington, to recover the sum of $500 in gold, which the plaintiff claimed had been lent to the defendant on the 1st of April, 1805. The defendant residing in Maryland, the process was served by an attachment on property owned by him in Richmond.

<p>The Exchange Hotel Company of Fredericksburg, in order to compíete their building, which they had commenced before the warj in June, 1866, borrowed of the National Bank of Fredericksburg §10,000, to he secured by a deed of trust ou the property, and by direction of the company the president and secretary of the company, by deed dated the 27th of June, I860, and duly recorded, conveyed the property in trust to secure the money. The company then employed Wroten, a builder, to complete the building, and contracted to give him a deed of trust, upon it, subject to the first lien, to secure any balance due him on its completion. The company, out of the money borrowed, paid Wroten §8,000. and when the work was completed there was due him So,791.50. He had recorded the contract to secure the mechanics’ lien, and on the 1st of January, 1867, the company conveyed the property, subject to the lien of the first deed,'in trust t) secure the said balance. In April, 1870, judgment creditors of the hotel company whose debts were due before tiie first deed was made, filed-their bill against the company, the bank, and Wroten, claiming- that under tile statute the deed to secure the hank enured to the benefit of all the creditors of the company being such .at the time of its execution. And so the court held, and the property being sold under the decree, the proceeds were distributed pro rata among the plaintiffs and the bank. Afterwards the assignee in bankruptcy of Wroten filed a bill to review the decrees, and insisted that the deed to secure the hank was null and void on the ground that under the act of Congress under which the bank was organized it was forbid to lend money on ' real estate, and also on the ground that as against Wroten’s mechanics’ lien the trust in fiivor of the bank extended only to. the property in the condition it was when the deed was executed—Held :</p> <p>1. Tiie act of Congress of the 3d of June, 1864, Revised Statutes of tiie United States, §§ 5336-5137, under which tliis bank was organized, does not imply a negation of the corporate power on the part of the national banks which might be organized under it to make a loan of money on real estate; does not annul any loan made by any such bank; or release or discharge any deed of trust or mortgage on real estate taken by the bank to secure the payment of such loan.</p> <p>2. If the act of Congress plainly prohibited a bank organized-under it to take a deed of trust or mortgage to secure a loan in any case, or made it penal to do so, such a provision could only have been intended for the benefit of the government, which might or might not, at its pleasure, enforce the forfeiture; and it eottld not be avoided by the borrower or his creditors.</p> <p>3. AVroten having contracted to complete the building with a full knowledge of the means which had been used to raise the money to pay for the work, and having received 88,000 of said money, is equitably estopped from claiming against the deed of trust executed to secure the return of the money loaned.</p> <p>4. The contract between AVroten and the hotel company having been made and recorded after the deed to secure the loan to the bank, his mechanics’ lien was posterior and subordinate to the lien of the bank under the deed to secure it, and was in fact merged in the lien by deed ■ of trust afterwards taken by him to secure the same debt, in which the prior lien of the bank was expressly-recognized.</p> <p>5. The lieu of the bank under its deed of trust extended to the whole property as it was at the time of the sale, and was not confined, as against the mechanics’ lien, to the property as it was when the deed was made.</p> <p>O. An objection that the deed of the 27th of June, 1S66, did not have affixed thereto the seal of the hotel company, nor was said hotel company by name a party to it, never made in any of the pleadings or proceedings in the cause, and only in the petition for an appeal, comes too late, and will not be considered.</p>

This was a suit in equity in the county court of Henry county, afterwards removed to the circuit court of said county, instituted hy Edmund B. Redd to enforce the satisfaction of a judgment recovered hy him, against John H. Redd, Peter R. Ramey, Overton R. Dillard, and John H. Jamerson, upon a forfeited forthcoming hond.

This was an action of trespass on the case, brought in the circuit court of the city of Richmond, hy William M. Roble and Olivia E., his wife, against the City of Richmond for alleged injuries sustained hy said Olivia E. hy falling in a hole in the sidewalk of one of the streets of the city.

This was a suit in equity in the corporation court of the city of ÜSTorfolk, brought in July, 1872, by Emma Jane Francis against Robert Francis. The parties were colored persons, born free.

<p>This was a suit in equity in the circuit court of Fauquier county brought in March, 1867, by Moore C. Blackwell against the administrator, widow and heirs of his father, James Blackwell, deceased, for a sale of the real estate of said James Blackwell for the payment of his debts, the bill alleging that the personal estate was not sufficient to pay them.</p> <p>The bill was taken for confessed as to all the defendants, and on the 8th of April, 1867, a decree was made directing Joseph II. Blackwell, the administrator, to ren^er an account of his administration before one of the of the court; and the commissioner was further directed to report to the court the character, situation and value, annual and fee simple, of the real estate of which the said James Blackwell died seized and posL sessed; the nature, amount and priorities of the liens, if any, upon said real estate; and also to ascertain and report the amount, priorities and dignity of the debts and liabilities of the said James Blackwell, deceased, and for that purpose that he convene the creditors by publication, &c.</p> <p>On the 3d of August, 1867, Commissioner. Pugh returned his report, from which it appeared that on October 24,1866, the administrator was indebted to the estate $540.46; the fee simple value of the land was estimated at $44,041.39, and its annual value at $1,600; and it did not appear there were any liens upon it.</p> <p>The commissioner also reported a statement of debts,^ which he divided into classes. The first class contained hut one fiduciary debt, and that due as committee of a lunatic, amounting to $2,871.45 as of the 1st of September, 1867. All other debts, except voluntary obligations, were included in the second class, and they were forty-six in number, and amounted, as of the same date, to $48,415.90. Of these there was a debt due to James D. Blackwell, due by four bonds of $750 each, dated the 19th of March, 1849, and payable in one, two, three and four years, with interest from date; and on these there was due on the 19th of March, 1867, $3,071.67, and interest on $2,520.20 from that date, $68.04, making due the 1st of September $3,139.61.</p> <p>On the 16th of September, 1867, the cause, came on to be heard upon the papers formerly read and the report of Commissioner Pugh, to which there was no exception, when the court recommitted the report .and directed the commissioner to take a further account of debts, and appointed commissioners to sell the real estate at private sale upon terms stated in the decree,.</p> <p>In September, 1868, Commissioner Pugh returned his report of additional debts amounting to $6,271.75. And the cause coming on to be heard on the 11th of January, 1869, on that report of Commissioner Pugh, and also on the report of sales of land by the commissioners, these reports were confirmed, except the two sales to "William H. Gaines. And James Keith was appointed a commissioner to collect the purchase money of the land. And it being suggested that there were still outstanding debts not reported on, Commissioner Pugh was directed to en-quire and report any further debts that might be proved before him.</p> <p>There was still another report of debts by Commissioner Pugh; and also of a distribution of the fund in the hands of Commissioner Keith; and on the 20th of September; 1870, there was a decree directing a commissioner of the court to consolidate the reports of Commissioner Pugh theretofore returned, and classify the creditors of James Blackwell, deceased, according to their priorities, crediting all amoun'ts paid to the creditors aforesaid, and to distribute the sum of $10,007.84 then in the hands of Commissioner Keith; and to report forthwith.</p> <p>On the 30th of September, 1870, Commissioner Shepherd returned his report, in which he consolidated the previous reports, and distributed the fund in hand. The whole amount of debts with interest up to the 1st of October, 1870, was $70,984.25. In this report James D. Blackwell is placed among the general creditors, and his share of the fund to be distributed is stated at $518.82. And on the 1st of October, 1870, the cause came on to be heard, when the court, not deciding any other matter involved in the cause, decreed that Commissioner Keith should distribute the said fund in his hands among the creditors of James Blackwell according to the distributhereof made by Commissioner Shepherd. And R. Taylor Scott was appointed a special commissioner to collect the unpaid purchase money.</p> <p>In September, 1873, James D. Blackwell filed his petition in the cause, alleging that James Blackwell ivas his guardian during his minority; and that immediately upon the petitioner’s coming of age he had a settlement with the said Blackwell, guardian as aforesaid, who executed to the petitioner his four notes for the amount then found due to him. He states the amount due him as reported by Commissioner Pugh on September 1st, 1867, viz: $3,139.61, which he insists was erroneously reported as not being a fiduciary debt. And he asks that there may be an enquiry before a commissioner as to the true character of the debt due to him. A decree was accordingly made referring'the matter to a commissioner for enquiry and report.</p> <p>On the 1st of December, 1873, the commissioner returned his report, in which he stated that on the 2d oí December, 1831, James Blackwell qualified as the guardian of James D. Blackwell, then a minor. In March, 1849, James D. Blackwell came of age, when his guardian, James Blackwell, had a settlement with him, and upon that settlement brought himself indebted to his said ward in the sum of $3,000. He gave his individual bonds, four in number, for said amount, each for $750, and dated the 10th of March, 1849, and payable in one, two, three and four years. Thus the matter has stood from that day to the date of the report, the said James Blackwell having paid not only the interest due upon said bonds, but a part of the principal. These four bonds, together with a statement of said debt claimed by said James D. Blackwell, were filed before Commissioner Pugh, and he reported said debt in favor of said James D. in his report of the 3d of August, 1867, as a debt due by said James Blackwell as a bond debt, payable pro rata with the other claims of the same against said estate; and this report of Commissioner Pugh was confirmed by decree of the court entered on the 11th of January, 1869., in this cause. These are the facts of the case, and the commissioner leaves it for the court to say whether the said James D. Blackwell’s claim is or is not a fiduciary debt.</p> <p>The bonds referred to by the commissioner were returned with his report, and they are all in the following form :</p> <p>One year after date I bind myself, my heirs, executors and administrators to pay to James D. Blackwell, his heirs or assigns seven hundred and fifty dollars, value received, to bear interest from date.</p> <p>As witness my hand and seal this nineteenth of March, eighteen hundred and forty-nine.</p> <p>James Blackwell [Seal],</p> <p>James 1). Blackwell was examined as a witness in his own behalf, though he was objected to as incompetent. He proved that the bonds were given by his guardian upon a settlement made with him the day after he came of age, and the guardian not being able to pay in cash what was due him, gave him the said bonds. James Blackwell had during his lifetime made to him the payments stated in Commissioner Pugh’s report. He made no objection to this mode of settlement at the time or subsequently. He regarded it as safest in his hands, as he was a man of reputed wealth, and witness was in no immediate want of it. And Joseph II. Blackwell, the administrator of James Blackwell, who was also examined as a witness, stated that he knew the debt was a correct one, and that it was due to said James 1). Blackwell from witness’ father as the guardian of James I). Blackwell.</p> <p>It appeared from a report filed in December, 1878, by J. Taylor Scott, acting for Commissioner Keith, who had been elected a judge of the court, that of the $9,691.13 to be distributed under a former decree, he had disbursed $9,146.40, leaving still in his hands of that fund $544.73. And that he had received the further sum of $6,377.39, of which he had disbursed $1,051.68, leaving to be disposed of $5,325.71; and that no part of either of these funds had been paid to James D. Blackwell. And it’was a fact agreed in'the cause that James Blackwell was a man of large means and ample estate, and, further, that he was perfectly solvent and able to pay the debt due James D. Blackwell, and all other debts due by him ñ’om the 19th of March, 1849, to the commencement of the war.</p> <p>The cause came on again to be heard on the 20th of December, 1873, when the court confirmed the report of Commissioner Scott; and being of opinion that the debt due to James D. Blackwell was fiduciary in its nature and character, decreed that the report of the commissioner be recommitted to him, and that he reform the reports of Commissioner Pugh of August 3d, 1867, and all reports of debts thereafter made in the progress of the cause, in accordance with the principles of this decree, by giving to the said debt due James D. Blackwell priority, as a debt due by the said James Blackwell, deceased, as guardian of said James D. Blackwell, and that he report forthwith.</p> <p>On the 22d of December, 1873, the commissioner returned his report. He states the debt of James I). Blackwell as stated b.y Commissioner Pugh, except that he credits it with $518.32, the amount of the fund to be distributed at that time, to be paid upon that debt; though it does not appear that it was paid. The other debts, as heretofore reported, to be paid ratably.</p> <p>On the 23d of December William Smith and several others of the creditors of James Blackwell, whose debts had been reported by the commissioner, upon their motion were made defendants in the cause; and they thereupon filed exceptions to the report of Commissioner Shepherd returned on the 22d of December, 1873, because said commissioner has reported the debt due James D. Blackwell as a fiduciary debt, and as such entitled to priority in the administration of the assets of the estate of James Blackwell, deceased.. But the court overruled the exceptions and confirmed the report; and decreed that E. T. Scott as special commissioner should pay out of the funds in his hands to James D. Blackwell or his attorney the» amount ascertained to be due him by said report. And thereupon William Smith and the said other creditors applied to this court for an appeal; which was awarded.</p>

This was a suit in equity in the circuit court of Loudoun county brought by Devries, Stephens & Co. to subject certain parcels of land which had been sold by Tazewell Lovett to satisfy a judgment they had recovered against said Lovett in August, 1866. The suit was a creditor’s hill in behalf of all the lien creditors of Lovett.

<p>In an action of debt upon a bond by C’s administrator against S’s administrator, proferí of the bond is excused on the ground that it was lost by accident. S’s administrator pleads payment, and special pleas in which he avers that the bond was not lost or destroyed by accident, but was destroyed by the obligee in her lifetime, with the intention and for the purpose of releasing S from the payment of the debt, and this he is ready to verify ; and issues were made up on the pleas. On the trial of the cause the defendant insists the plaintiff should first prove to the satisfaction of the court the original existence of the . bond and its loss, and it was agreed that all the evidence in the cause shall be heard, and the defendant may move to exclude it ,• and on his motion all the evidence was excluded—Held :</p> <p>1. Every pleading is taken to confess such traversable matter on the other side as it does not deny. The pleas, therefore, confess the original existence of the bond as described in the declaration and its destruction. There was, therefore, no necessity on the plaintiff to prove to the satisfaction of the court the original existence and loss of the bond before receiving testimony as to its contents.</p> <p>2. If the pleas put in issue the loss of the bond, then that issue must be tried by the jury; and if there was evidence introduced before the jury bearing on the question of the loss of the bond, it was for the jury to decide upon the sufficiency of the evidence to establish the loss; and it was error in the court to exclude it.</p> <p>3. If it was incumbent on the plaintiff to prove the original existence and the loss of the bond, before proving its contents, the evidence was sufficient in this case.</p>

The controversy involved in this case has been pending, in a variety of forms, for more than twenty years. It was founded on a check dated December 23, 1854, drawn by W. J. Eead on the cashier of the Farmers Bank of Virginia at Lynchburg, payable to Quarles & Steptoe, or order, for five hundred dollars. The said Eead claimed to have loaned the said check to the said Quarles & Steptoe, who were partners; and that they were jointly indebted to him in the amount thereof.

This was an action of debt in the circuit court of Dan-ville, brought in September, 1870, in the name of the Farmers Bank of Virginia for the benefit of John M. Gocldin and Samuel C. Robinson, trustees, against Crews, Rodenhimer & Co., partners, as endorsers of a negotiable note made by A. G. Taylor for $2,000 in gold, hearing date the 20th of August, 18G5, and payable in four months at the office of discount and deposit of the Farmers Bank at Danville.

This was a suit in equity in the chancery court of the city of Richmond brought in January, 1876, by James P. Wooddy against The Old Dominion Insurance Company to recover the sum of $1,000, the amount which the plaintiff claimed he was entitled to on account of an insurance by the company upon a house in the town of Tappahannock belonging to the plaintiff.

<p>1. For the grounds and principles upon which a court of equity will or will not enforce the specific execution of a contract for the sale of land—see the opinion of Burks, J.</p> <p>2. For the grounds and principles upon which a court of equity, refusing to enforce a specific execution of a contract for the sale of land, will direct an account of the purchase-money and rents, &c.—see the opinion of Staples, J.</p> <p>3. The committee of a vendor of land files a hill, which, on the death of the vendor, is revived in the name of his heirs, to set aside a contract and deed for the sale and conveyance of land on the ground of the vendor’s incompetencv, of the improper influence exercised upon him, and for inadequacy of consideration. The court sets aside the deed and directs that the vendees shall surrender the land, unless within ninety days they file a bill for the specific execution of the contract; which they do—Held :</p> <p>1. Upon the evidence that the court would not enforce or rescind the contract.</p> <p>2. It seems that in such case the court will direct an account of the purchase-money paid in Confederate currency by the vendees, and of rents and profits, though a large portion of the purchase-money was paid when the deed was executed, and the vendor was wholly incompetent to act.</p> <p>3. If upon taking the account there is a balance found due, it is a lien upon the land, and may be enforced inequity.</p> <p>4. The heirs of the vendor are not responsible personally for such balance.</p>

<p>B’s executor brought an action of debt upon a bond against the executor of C. C was one of four obligors on the bond, all of whom were dead but T, and T was a discharged bankrupt. The only issue in the case was on the plea of payment—Held:</p> <p>1. That T having been released from the payment by his discharge in bankruptcy, was a competent witness at common law for the defendant, to prove payment of the debt.</p> <p>2. The statute, Code of 1873, §§ 21, 22, was intended to remove incompetency in certain cases, and not to create it in any case, and T being a competent witness at common law, is not rendered incompetent by the statute. And this especially since the act of April 2,1877, Sess. Acts of 1876-77, ch. 256, amending the former act, which, though passed after the suit was brought, was in force at the time of the trial, and therefore governs the case.</p>

<p>This was a suit in equity in the circuit court of Fauquier county, brought on the 28th December, 1868, by Charles "W. Hoffman against P. GL Kenny and several others, to have specific execution of a contract by which said Hoffman sold to said Kenny a tract of land of five hundred and eighty-five acres in said comity, at $25 per acre, and to have the liens hy deeds of trust and judgments ascertained in order that he might make a clear title to the purchaser.</p> <p>The written contract bears date on the 10th August, 1868, and after setting out the land and the price to he paid, provides that Hoffman shall deliver immediate possession of the land, except certain specified parcels, and of these possession was to be given on the 1st of January next. And it further provides “that Kenny is to pay to said Hoffman the whole amount of the purchase-money as soon as a clear title is made to him.”</p> <p>.Kenny resisted the specific execution of the contract; on the ground that immediate possession was the important inducement to the purchase hy him, and that he ascertained after the contract was made that the land was incumbered hy various deeds of trust and judgment liens, and he therefore refused to carry out the purchase, and gave notice thereof to Hoffman.</p> <p>The cause ivas pending and strongly contested for two years, and two or more reports were made hy a commissioner as to the liens upon the property hy deed of trust and judgments; and all the liens hy deed, but one for a specific amount, having been removed, and the judgments and their amounts ascertained, the cause came on to he heard on the 29th of September, 1870, when the court held that the plaintiff was entitled to have a specific execution of the contract, and decreed that P. Gr. Kenny should pay to K. Taylor Scott, who was appointed special commissioner for the purpose, the sum of §14,685.82 within thirty days from the date of the decree; and that upon the payment of the said sum of money to said special commissioner, he, the said special commissioner, should deliver to the said Kenny the deed from C. W. Iioffman and wife to said Kenny, filed in the cause with the bill; and the sheriff was directed to put the said . Kenny in possession of the land. Should the said Kenny fail to pay the said sum of money within the time aforesaid, then it was further decreed that commissioners named should proceed to sell the land at public auction, on the terms of cash for so much as %vas necessary to cover expenses, and for the balance on a credit of one, two and three years, and make report, &c.</p> <p>In February, 1871, the commissioners reported that they had sold the land, and that C. W. Iloffman had become the purchaser at $18.50 per acre. And on the 17th of April the court made a decree confirming the sale. From these decrees Kenny applied to this court for an appeal; which was allowed.</p> <p>The view taken by this court of the facts attending the purchase of the land, and the clouds upon the title, are set out in the opinion delivered by Judge Anderson. The deed of Hoffman and wife to Kenny, filed with the bill, conveys all their legal and equitable interest in said land, and all others claiming by or through them.</p>

This was a suit in equity in the corporation court of the city’ of Alexandria, brought in April, 1871, by Mc-Eeal & Beacham, partners, and James H. Stevenson, to set aside a deed made by E. S. Boynton, dated the 25th of January, 1871, by which said Boynton conveyed to George Ilewes a house and lot in the city of Alexandria in trust for the separate use of Caroline E. Boynton, the wife of said Boynton.

This is the sequel of the case of the Danville Bank v. Waddill, reported in 27 Gratt. 448. Waddill liavingdied whilst the cause was pending in this court, on its return to the circuit court of Danville it was revived against his administrator with the will annexed. The case was assumpsit, and the only plea non assumpsit, and the object of the suit was to recover the sum of $4,865 in gold, which the bank had put into the hands, of Waddill for safe-keeping in April, 1865.

This was an action of ejectment in the circuit court of Culpeper county, brought in October, 1872, by John S. Quesenberry and J. M. Quesenberry against John S. Barbour, to recover a tract of land in that county. There was a judgment in favor of the defendant, and the plaintiffs thereupon applied to a judge of this court for a writ of error; which was awarded. The case is fully stated by Judge Moncure in his opinion.

This is the sequel of the case of Burton v. Brown’s ex’ors als., 22 Gratt. 1. When the case went hack ■the accounts were referred to a commissioner, and all the debts of James Brown the elder having been paid, 0the accounts reported were the administration accounts of Alexander S. and Patrick W. Brown, executors of Jas. Brown the elder, and of the distribution of the estate among the parties claiming the same.

<p>This is the sequel of the case of McLean v. Piedmont & Arlington Life Ins. Co., 29 Gratt. 361. The judgment was then reversed because the court below had excluded parol evidence tending to prove a waiver of the forfeiture of the policy in which the action was founded. After the cause went back to the circuit court it came on for trial again on the 6th of February, 1877, when there was a verdict and judgment for the plaintiff. And the company obtained a writ of error and supersedeas from a judge of this court.</p> <p>Two exceptions were taken by the defendant. "When the evidence had been introduced, the plaintiff moved the court for an instruction, which was given; and then the defendant moved the court to give an instruction, which the court gave with an addition thereto; to which addition, and the refusal to give the instruction asked by the defendant without said addition, the defendant excepted. These instructions are as follows:</p> <p>“If the jury believe from the evidence that Barrow failed to pay the quarterly premiums that fell due on the 22d of October, 1874, and the 22d January, 1875, on the days when they became due, and if they believe that by reason thereof he had forfeited his right to the policy; but if they further believe from the evidence that the defendant, by its officers, waived or to waive any claim which it might have that said policy had become forfeited for non-payment of Premiltms due on those days, and agreed to receive the said back premiums from Harrow or the assured, and that the said back premiums were paid on the faith of this agreement, then they must find for the plaintiff.”</p> <p>Which instructions the court gave; and thereupon the defendant moved the court to instruct the jury as follows:</p> <p>“ If the jury believe from the evidence that Harrow neither paid nor tendered payment of the premiums due on the policy in suit October 22, 1874, and January 22d, 1875, until January 80th, 1875, then the jury must find for the defendant, unless they find that the forfeiture thereby occasioned had been waived by the company, or by some officer authorized to make such waiver; and if such waiver was conditional, then that said" conditions, the same being lawful, have been fulfilled.</p> <p>“The jury are further instructed that the burden of proof is upon'the plaintiff to show that the failure to pay any premium on the day it fell due was excusable under the conditions of the policy, or was subsequently waived by the defendant.</p> <p>“ If the jury believe that the reinstatement of the policy on the receipt of lapsed premiums was upon the condition that the insured was in- good health at the time of such reinstatement, they must find for the defendant, if there is evidence tending to show that Higgins was not in such health, and no evidence to the contrary.”</p> <p>Which the court modified by adding the following words:</p> <p>“ If the jury believe from the evidence that D arrow neither paid nor tendered payment of the premiums due on the policy in suit October 22d, 1874, and January 22d, 1875, until January 80th, 1875, then the jury must find for the defendant, unless they find that the forfeiture thereby occasioned had been waived by the company, or by some officer authorized to make such waiver, the assistant secretary, J. J. Ilopkins, in this case,being so authorized; and if such waiver was conditional, then that said conditions, the same being lawful, have been fulfilled.</p> <p>“The jury are further instructed that the burden of proof is upon the plaintiff, to show that the failure to pay any premium on the day it fell due was excusable under the conditions of the policy, or was subsequently waived by the defendant.</p> <p>“If the jury believe that the reinstatement of the policy, on the receipt of lapsed premiums, was upon the condition that the insured was in good health at the time of such reinstatement, they must find for the defendant, if there is evidence tending to show that Higgins was not in such health, and no evidence to the contrary.”</p> <p>After the verdict had been rendered the defendant moved the court to set it aside and grant a new trial of the cause on the ground that the verdict was contrary to the evidence; and the bill of exception sets out all the evidence. It is impossible to state the evidence, nor is it necessary. It is directly co3iflicting oil the question of waiver.</p>

This was a creditor’s bill, filed in 1872 in the circuit court of Goochland county by Peter Guerrant’s executors and others against the executors of John M. Trevillian and his widow, devisees and legatees, to subject the estate left by Trevillian to the payment of his debts.

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

This was a suit in equity in the circuit court of Hew Kent county, brought in July, 1871, by Alpheus H. Garnett and others as the residuary legatees of Anderson Crump, deceased, against the administrator de bonis non and widow and heirs of James Stamper, deceased, who in his lifetime.had been the administrator de bonis non with the will annexed of said Anderson Crump, for the settlement of the accounts of Stamper as administrator, and payment of the amount which might he…

<p>This was an appeal from a decree of the chancery court of the city of Richmond made in a cause depending therein in the name of Atkinson v. Atkinson others, directing Alexander II. Sands, as the receiver of the court in that case, to pay to the City of Richmond $53.82, expended by the city in paving the sidewalk in the front and on the side of a lot at the northwest corner of Leigh and Tenth streets, owned by the parties in that cause. It appears that the city having in pursuance of the ordinance of the city graded, guttered and curbed the streets and sidewalk along the front and side of said lot, gave a notice to Sands, as receiver in said cause, to pave the sidewalk; and he failing to have the work done within thirty days, the engineer of the city, as directed by the ordinance, had the work done, the cost of which was $53.82. This bill was presented to Sands for payment, and payment was refused for the reason that, being an officer of the court in the case, he desired the order of the court in the premises.</p> <p>The petition was thereupon filed by the city, and Sands filed his answer, in which he insisted—</p> <p>1st. That the ordinance was invalid as being in violation of the constitution of the state.</p> <p>'2d. Because the ordinance under which this demand upon him was made was not passed by three-fourths of the members of each branch of the city government, as required by the 25th section of the charter of the city.</p> <p>It was agreed by the parties that the ordinance was not passed by either branch of the city government b^ the vote of either two-thirds or three-fourths of all the members of each body respectively; but it appeared that the ordinance of which this was an amendment contained substantially the same provision.</p> <p>The case came on to be heard upon the petition on the 9th of May, 1878, when the court held the ordinance was valid, and that the claim made by the city was a valid charge against the property in question, and decreed that Sands, receiver of the court in the cause, do forthwith, or as soon as funds come into his hands, pay to the City of Richmond the sum of $53.82, with interest thereon until paid, in full of the claim set forth in the bill accompanying the petition, and also the costs of this proceeding. And thereupon Sands applied to a judge of this court for an appeal; which was allowed.</p>

This was a suit in equity in the circuit court of Biehmond county, brought in March, 1874, by Lucy C. Brockenbrough, executrix of Littleton Brockenbrough, deceased, and Ferdinand Shackleford, administrator of Thomas B. Shackleford, deceased, judgment creditors of John M. Brockenbrough, to set aside as fraudulent three deeds of trust made by the said John M. Brockenbrough. The creditors secured, as well as John M. Brockenbrough, answered denying the fraud.

The bill in this case was filed in August, 1877, in the circuit court of Mecklenburg county, by John A. Coke, administrator with the will annexed of B. Y. Overby, deceased, suing for the benefit of himself and all other creditors of John Lewis, deceased, who shall come in and contribute to the costs of the suit.

<p>This was a suit to enjoin a sale of land under a deed of trust in the circuit court of Bedford county, brought by Thomas ~Y. Mosby against the St. Louis Mutual Insurance Company and others. The ground' relied upon was that the debt secured by the deed was usurious. The case is stated by Judge Christian in his opinion.</p>

This was an actiou of cleht in the circuit court of Brunswick county, brought by the assignee in bankruptcy of Thomas D. Edmunds, a bankrupt, against J. ~W. Harper, co-obligor with Peter Stainback, also a bankrupt, to recover the amount due upon a bond for $933.32, executed by said Stainback and Harper to Thomas D. Edmunds, dated 24th of July, 1860.

<p>This was an appeal from the judgment of the hustings court of the city of Richmond, affirming a judgment of the police justice, imposing a fine of ten dollars upon F. Frommer for his failure to take out a license upon a wagon used by him in the city. The case is fully stated by Judge Christian in his opinion.</p>

<p>L & S carried on two stores in Norfolk, on premises of which they held leases. On the 8th of May, 18GG, they conveyed to F all their goods in these stores, all debts due them, and the leasehold premises, in trust to pay certain specified debts, with authority to take possession, sell the goods, and collect the debts. On the loth of May W sued L & S in assumpsit for $913.30, and on the sanie day sued out an attachment against their effects, and this attachment was levied on all the goods and debts at the two stores, which were taken possession of bjr the sergeant of the city. On the same loth of May, but two or three hours after the attachment of IV was levied, the National Exchange Bank of Norfolk sued out an attachment against the property of L & S, claiming a debt of $ll,G6o, and this attachment was levied by the same officer upon the goods, &c., in his hands under the other attachment, and also upon the leaseholds of the two houses. In this case F interpleaded, and there was a verdict and judgment in his favor; and afterwards the suit of IV was dismissed. F then sued the Bank in an action of trespass on the case for the damages he had sustained by the levy of their attachment—Held :</p> <p>1. Though at common law action on the case was the proper remedy so far as the goods, &c., embraced in the first attachment were involved, and trespass vi et armis was the remedy as to the leaseholds which were not levied on by the first, yet as under the Virginia statute case may be brought wherever the action of trespass vi et armis could be brought, the action on the ease was properly brought to recover the damages sustained as to all the property attached.</p> <p>2. F has a right to recover from the Bank all the damages he has sustained by the levy of the attachment of the Bank upon the two storehouses held under lease, and the withholding the possession from him.</p> <p>3. If the attaching creditors had been joint trespassers in seizing and detaining the attached effects, then they would have been jointly and severally liable for the whole amount of the damage resulting from such joint trespass. But their acts in so seizing and detaining said effects having been several, they are liable severally for the damage resulting from their several act.</p> <p>4. The attachments and returns of the officer thereon showing that the property was held under both attachments, parol evidence is not admissible to prove that it was held exclusively under the first attachment.</p> <p>5. If the plaintiff seeks to introduce a copj^ of the record in the attachment suit for the purpose of showing the existence of said record and how the case therein mentioned had been disposed of, it can only bo done by its being introduced for all the purposes for which it ma3r properly be available to either party.</p>

This was an action of detinue in the circuit court of the city of Richmond, brought by Frederick Burckhardt against the Old Dominion Steamship Company, to recover ninety tierces of stearine, of the value of $3,600. The defendant pleaded non detinet, and it was agreed that any defence might be made under that plea that might be made under any proper special plea.

This was an action on the case in the circuit court of the city of Richmond, brought by Charles Talbott against the Richmond and Danville Railroad Company, to recover damages for injury done to certain real property of the plaintiff by a railroad track laid by the company in a street or alley in the city.

This was a bill in equity in the circuit court of the county of Henry, brought by James S. Redd and fifteen other citizens and tax-payers of Henry county, to enjoin the supervisors of the said county from issuing the county bonds for $100,000, for payment of the county subscription to the stock of the Danville and New River Harrow-Gauge railroad company. This was a company incorporated by an act of the general assembly of Virginia, approved March 29th, 1873.

This was an action of trespass guare clausum fregit in the circuit court of the city of Richmond, brought in July, 1876, by A. Y. Stokes and two other partners, under the name and style of A. Y. Stokes & Co., against the City of Richmond. The subject of the action was a parcel of ground extending from Cary street to Basin street forty feet, and twenty-one feet wide, which was covered by a part of Twelfth street, as then used.

In March, 1877, the City of Portsmouth and the County of Norfolk entered into an agreement, which, reciting that -certain questions and disputes between these parties have arisen, and are now depending, they agree to submit them all to arbitration, except one pending suit named, and they proceed to set out these disputed subjects under fourteen separate heads, the fourteenth of which is • as follows: “ Fourteenth.

<p>This was an action of assumpsit in the circuit court of the city of Kichtnond, brought in June, 1873, by Charles E. Kloeber, for the benefit of B. Green, trustee, against the Southern Mutual Insurance Company, to recover the .amount of the insurance by the defendant of the dwelling-house of said Kloeber, situated in or near Chatham, in the county of Pittsylvania. The defendant pleaded non assumpsit, and it was agreed to dispense with a jury, and that the whole matter of law and fact should be submitted to the court. And the court having heard the evidence, rendered a judgment in favor of the plaintiff for $3,000, the amount of the policy, with interest from the 1st of April, 1873; and the defendant excepted, all the evidence being set out in the exception; and obtained a wr^ error and supersedeas.</p> <p>It appears that in April, 3869, George ~W. Hall was the owner of the property insured, and by deed of that date he conveyed it with several other parcels of real estate, and also personal property, to Coleman I). Bennett, to secure the sum of $10,000 to Smithson H. Holland. Bennett having died, at the June term of the county court of Pittsylvania Berryman Green was appointed trustee in the deed; and in September, 1871, Green sold this house and the grounds at public auction, when the plaintiff Kloeber became the purchaser at the price of $4,060, and executed his bonds for the purchase-money payable at six, twelve, eighteen and twenty-four months, the trustee retaining the title; At the time of the issue of the policy, which is dated the 21st of September, 1872, Kloeber had paid but $534 of the purchase-money.</p> <p>The other facts on which the opinion of this court is founded are sufficiently stated by Judge Christian in his opinion.</p>

This was an action of assumpsit in the circuit court of the city of Eichmond, brought in May, 1873, by Charles E. Kloeber, for the benefit of B. Green, trustee, against the Virginia Eire and Marine Insurance Company to recover the amount of the insurance by the defendant upon the dwelling-house of the said Kloeber, situated in or near Chatham, in the county of Pittsylvania.

This was an action of trespass on the case in the circuit court of the city of Alexandria, brought in September, 1871, by Jacob D. Faunee against the Alexandria and Fredericksburg Railway Company to recover damages incurred by him as lessee of land and a fishery attached, in the Potomac river, in the county of Prince William, by the erection and construction of certain embankments and obstructions, whereby the said landing was entirely destroyed for the purposes of fishing…

Xu a cause depending in the circuit court of the city of Alexandria, in the name of John G. Graham against the Washington City, Virginia Midland and Great South ern Railroad Company, in September, 1877, Jacob I).

Tliis was a proceeding by garnishment in the circuit court of Pittsylvania county, instituted in August, 1873, by Jolin I). Glenn, administrator of A. J. Whitehead, deceased, who, in his lifetime, had recovered a judgment against Thomas S. Jones and others against George W. Coleman and Thomas G. Coleman, executors of Stephen Coleman, deceased, as debtors to or having effects of said Thomas S. Jones in their hands.

This was a creditor’s bill in the county court of Loudoun, brought in June, 1870, by Kichard H. Summers against James W. Larne and Emily E. Larne, his wife, William L. Nutt and others, to subject two tracts of land once held by James W. Larne to satisfy four judgments recovered by Summers against James W. Larne in 1861, and docketed in 1865.

<p>This was an action on the case in the circuit court of Prince Edward county, brought by the administrator of "W\ "W. Anderson, Sr., against the Richmond and Dan-ville Railroad Company to recover damages for injury, resulting in death alleged to have been occasioned by the negligence of said railroad company. On the trial there was a verdict and judgment for the plaintiff for $6,000; and the defendant applied for and obtained a writ of error and supersedeas. The case is stated by Judge Burks in his opinion.</p>

In April, 1878, the grand jury for the corporation court of the town of Danville found an indictment against James Jones ; that he, on the 27th of March, 1878, in and upon one Henry Clay White did make an assault, and him, the said Henry Clay White, feloniously and maliciously did stab, cut and wound, with intent the said Henry Clay White then and there to maim, disfigure, disable and kill, &c. In July, 1878, the prisoner was tried on this ment, and the jury, not agreeing on…

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

<p>The caséis stated by Judge Burks in his opinion.</p>

At the June term, 1878, of the hustings court of .the city of Richmond, the grand jury indicted Willard F. Trogdon for the larceny of the goods and chattels of M. Milhiser & Co., of the value of $496.47. Though the indictment was for larceny, the offence charged was in fact for obtaining the goods on false pretences.

<p>Ch. 44, §13 of an ordinance of the city of Richmond provides that every hotel keeper, and keeper of a restaurant, lager beer saloon, or other place where ardent spirits, beer, cider or other drinks are sold or given away, shall close the bar where such drinks are sold or given away every Sunday during the whole day, * * * and any person violating any provision of this section shall be fined not less than ten nor more than $500. The act of March 6,1874, eh. 83, p. 76, enacts “ that no intoxicating drinks shall be sold in any bar-room, restaurant, saloon, store or other place within the limits of this commonwealth from 12 o’clock on each and every Saturday night of the week, until sunrise of the succeeding Monday morning.” And the peualty for aviolation of this act is afine of notless than ten nor more than $500, and at the discretion of the court a forfeiture of his license : “ provided that this law shall not apply to any city having police regulations on this subject, and an ordinance inflicting a penalty equal to the penalty inflicted by this statute”—Held : That the ordinance is not the same as the statute, either in the specification of the offence or in the penalty, so as to bring it within the proviso of the statute; and therefore a prosecution for a violation of the act may be sustained.</p>