Volume 36 — Virginia Reports

This was a motion, under the statute providing a summary remedy for sureties against their principals, 1 Rev. Code, ch. 116. by Clements against the administrators of Powell, made in the county court of King William, upon notice duly given, at June term 1830, to recover 185 dollars, which Clements- had paid for Powell ¡n ^ lifetime as his surety.

Lucy Wood recovered judgment and award of execution on a forfeited forthcoming bond, against William Miller and William Sampson, in the district court of Richmond, in September 1797, for £ 139. 19. with five per centum per annum interest from August 1796 till paid, and the costs; and Sampson obtained an injunction from the then high court of chancery, to stay farther proceedings at law.

<p>On the 30th November 1822, Kemp and two others executed a joint and several bond to Mundell and Chapin for 198 dollars payable six months after date with interest from the date. Mundell and Chapin brought an action on the bond against Kemp in the county court of Prince George, Maryland, laying the damages for the detention of the debt at 400 dollars ; Kemp confessed judgment for the debt and damages claimed; and, thereupon, the court rendered judgment for 198 dollars, the debt, and 400 dollars, the damages, and the costs of suit; with a ■memorandum entered at the foot of the judgment on the record, that the plaintiffs agreed to release the 400 dollars damages, upon payment of the interest on the debt from the 30th November 1822 till paid, and the costs of suit.*</p> <p>Kemp afterwards coming to Virginia, Mundell and Chapin brought an action of debt against him on the Manjland judgment, in the circuit superiour court of Princess Anne; and in their declaration demanded 205 dollars, being the amount of the principal debt and costs recovered by the judgment, and instead of the 400 dollars damages, the interest on the principal from the 30th November 1822—but the declaration, in the sequel, set forth the record of the judgment as it really was; that is, it stated that the judgment was for the principal debt, the damages, and the costs, subject to a release of the damages on payment of the interest; and it contained, moreover, an averment that the debt, damages and costs, so recovered by the judgment, were of the value of the debt and interest now here demanded.</p> <p>The defendant first pleaded no such record, on which issue was joined. And he afterwards tendered a plea of nil debet; to which the counsel for the plaintiffs objected, but on the defendant’s counsel saying that he hoped to shew by authorities that this was a proper plea in such a case, the court overruled the objection, an(j p¡ea wag pUt in, and the plaintiffs took issue upon it. But at the next term after these proceedings, there was a judgment entered for the plaintiffs as upon a general demurrer by them to the defendant’s plea of nil debet; and the court gave judgment for them also on the plea of no such record, and then judgment for them according to the demand in the declaration ; namely, for the debt and interest.</p> <p>The defendant applied by petition to this court for a supersedeas to the judgment; which was allowed.</p>

Debt on a sheriff’s official bond, brought in the circuit court of Hardy, in the name of The Governor at the relation of William Fisher, against Vanmeter, the sheriff of Hardy, and M’Mechin and Williams, his sureties, to recover damages for an official default of the sheriff The declaration demanded 10,000 dollars, the penalty ^ of the bond; and, after stating the execution thereof, and setting forth the condition, which was in the usual form,—that the sheriff shouLd well…

This was an action of assumpsit in the county court of Campbell, brought by Rohr against Davis, Bullock and Lynch, to recover the amount which the plaintiff claimed to be due to him from the defendants, for stone work by him done for them. The declaration alleged a joint contract of the three defendants with the plaintiff for the work; and the defendants pleaded jointly, non assumpsit. Upon the first trial, the jury found a verdict for the plaintiff for 1164 dollars damages.

<p>The administrator with the will annexed of John Marston deceased, in December 1836, presented a claim to the auditor of public accounts, for about fifteen years half pay, which, as he alleged, had become due to his testator as a lieutenant of the Virginia line on state establishment, under the act of May 1779, ch. 6. 10 Hen. Stat. at large, p. 25. or for commutation of five years full pay, with interest, in lieu of the half pay for life. The auditor rejected the claim; and the claimant appealed from his decision to the circuit superiour court of Henrico.</p> <p>In. his petition for the appeal, the claimant alleged, that his testator Marston entered into the army as a private in the continental line, early in the war of the revolution, and served about three years; that he was then made a cadet in the first Virginia state regiment commanded by col. George Gibson, and soon after a lieutenant; that he was commissioned a first lieutenant on the 3d July 1779 ; and that he continued in service in that capaoity, from that time till the end of the war. That lieutenant 'Mansion died about the beginning of the year 1798. And therefore, he was entitled for his services, either to half pay for and during his life, or to commutation of five years full pay in lieu thereof, with interest from the 22d April 1783, which the claimant alleged was the date of the end of the war.</p> <p>The auditor’s answer to the petition shewed, that he did not reject the claim because he thought it unfounded either in fact or in law. He said, “ that lieutenant Mansion having been reported by the board which sat in 1782,* as entitled to half pay, the act of congress of July 1832 authorized the settlement of the claim at Washington.'”</p> <p>In the circuit superiour court, all the evidence adduced by the claimant in support of the claim, as well as that adduced on the part of the commonwealth to repel it, was spread at large on the record. And that court was of opinion, that it appeared by the evidence, that Mansion was a lieutenant in the Vinginia state regiment commonly called Dabney’s legion, in the revolutionary war, and continued to serve as such till the end of the war; and that he was entitled to the commutation of five years full pay in lieu of half pay for life, with interest thereon from the 22d day of April 1783 till payment; and so the auditor erred in rejecting the claim: therefore, the court ordered, that the auditor should give the claimant a warrant for the amount of . ° ... ... . the five years mil pay, with interest occ.</p> <p>Upon the application of the attorney general, this court allowed the commonwealth an appeal.</p>

Assumpsit by Robinson against Ayletis executor, brought in 1833, in the circuit superiour court of King William.

Henry Tatum was a lieutenant of the Virginia continental line in the army of the revolution, who entered into the service in March 1776 and continued therein until the reduction of the regiment to which he belonged in the year 1778, under the resolution of congress to that effect, when he became a supernumerary, and so continued until the end of the war.

Robert Manson of York county made his will in October 1785, having, at the time, a wife and three sons and two daughters, and his wife… Held: (being either slaves mentioned in the report of the division of December 1815, between Peter Manson and Hansford and wife, or the increase thereof); and the marshal was directed to hire those slaves out from year to year, take bonds with security for the hires, collect the same when due, and deposit the proceeds of collections in the…

This was an action for breach of covenant, brought in the circuit court of Augusta, as early as October 1817, by John Guthrie against Robert Thompson; and both parties having died pending the suit, it was revived in the name of Guthrie’s administrator against Thompson’s executor.

<p>By an act of assembly passed 29th January 1823, entitled “ an act concerning the superiour court of law of Henrico county,” if was enacted, that the judge of that court should hold three terms in each year for the trial of criminal causes, in addition to the two terms for the trial of civiL causes; and that the judge of the general court assigned to the fourth judicial circuit (to which, according to the then existing arrangement of the courts, Henrico belonged) should receive, in addition to the salary then allowed him (which was 1500 dollars) the animal sum of 300 dollars. In the new organization of the judiciary system, made by the act of the 16th April 1831, whereby the present circuit superiour courts of law and chancery were established, the commonwealth was divided into ten districts and twenty circuits, and the county of Henrico was arranged in the fourth district and seventh circuit; and it was provided, that the circuit superiour courts should be held by the judges of the general court, the number of whom was by another act of the same date increased to twenty, who should be elected for and assigned to the circuits . ... respectively, and each of them commissioned a judge of the general court, and judge of the circuit superiour courts of the circuit for and to which he should be elected and assigned ; and that “the judge of the circuit superiour court of Henrico” should receive the additional salary of 300 dollars prescribed by the act of 29th January 1S23. See acts of 1830-31, ch. 7. 8. 11. Supp. to Rev. Code, ch. 106. 107. 108. and particularly § 5. 15. 27. of the last cited act.</p> <p>Mr. Brockenbrough, who was the judge of the general court first elected for and assigned to the seventh circuit, and mr. Clopton, who, upon the appointment of mr. Brockenbrough to the bench of the court of appeals, was elected his successor as judge of that circuit, continued to receive the additional salary of 300 dollars allowed as aforesaid—mr. Clopton until February 1837, though, during the time he continued to perform the duties of judge of that circuit superiour court, the three criminal terms originally prescribed by the act of 29th January 1823 were abolished. In February 1837, an act was passed, severing the county of Henrico and city of Richmond from the seventh judicial circuit, forming them into a new circuit, namely, the twenty-first, and providing that another judge should be added to the general court, and elected and assigned for and to the new circuit, to whom a salary of 2000 dollars was allowed. Sessions acts of 1S36-7, ch. 61. p. 38. Under this act mr. Nicholas was elected a judge of the general and circuit superiour courts, and assigned to the new circuit composed of the county of Henrico and city of Richmond. Mr. Clopton remained the judge of the seventh circuit.</p> <p>In April 1837, mr. Clopton presented his claim to the auditor of public accounts, for his quarter year’s salary due on the 1st of that month, at the rate of 1800 dollars per annum, including the 300 dollars additional salary, which had been allowed him as judge of the seventh circuit, while Henrico and Richmond belonged to that circuit, and he performed the duties of judge of the circuit superiour court thereof. The auditor, seeing that he was now relieved from the duties of judge of that circuit superiour court, in consideration of which the additional salary of 300 dollars had been allowed to him, refused to allow his claim to the additional salary. He appealed from this decision of the auditor to the circuit superiour court of Henrico and Richmond; which reversed the auditor’s decision, and, holding that mr. Clopton was still entitled to the additional salary, directed the auditor to settle and allow his claim at the rate of 1800 dollars salary per annum. From which judgment, this court, on the application of the attorney general, allowed the commonwealth an appeal.</p>

Philip Grymes deceased, of Middlesex, was, in his lifetime, the executor of John Robinson deceased. That testator, by his will, bequeathed a legacy to Robert Robinson, who survived the testator and died ; and though sufficient assets to pay the legacy came to Grymes’s hands, he died without having paid it; so that his estate was, aeknowledgedly, liable to the representatives of the legatee for the amount of the legacy. Grymes’s estate was an ample one.

<p>Jeffrey Gilliam, late of Charles City, died in 1S16, and by his will directed his whole estate, which was all personal, to be sold; and after directing that his debts and some small legacies should be paid out of the proceeds of the sale, he bequeathed the residue to his two sons, Edward and William, to be equally divided between them; and he appointed his son Thomas his executor. Thomas Gilliam proved the will, and qualified as executor, in the county court of Charles City, in May 1816; and Ilamlin Wilcox was his surety in his executorial bond.</p> <p>Edward Gilliam, one of the testator’s residuary legatees, by deed, dated the 17th January 1820, sold and assigned all his interest in the testator’s estate to Michael Pearman.</p> <p>Pearman exhibited his bill in the superiour court of chancery of Williamsburg, against Thomas Gilliam the executor, who was now a resident of the state of Tennessee, Wilcox the surety in his executorial bond, and the administrator of the legatee William Gilliam who was dead,—setting forth the will of Jeffrey Gilliam, the qualification of the executor, and the assignment of Edward Gilliam’s share to him; charging, that the executor had never settled his account of administration ; and praying an account thereof, and a decree for his assignor’s share.</p> <p>Thomas Gilliam, the executor, never appeared: he was regularly proceeded against by publication, and the bill was taken pro confesso as to him.</p> <p>His surety, the defendant Wilcox, put in an answer, in which he staled, that Thomas Gilliam, the executor, had, before the date of the deed of assignment which was executed by Edward Gilliam to the plaintiff, and under which he claimed, paid to Edward Gilliam the sum of 385 dollars 29 cents, upon condition that he should refund any excess of that sum beyond what should appear due to him as a legatee of his father on a fair settlement of accounts ; and that that sum did in truth exceed the utmost that could be due to Edward.</p> <p>The only question in the cause was, Whether the payment of 385 dollars 29 cents had been in fact made by Thomas Gilliam, the executor, to his brother Edward, the legatee f and made before Edward’s deed of assignment to Pearman of the 17th January 1820 ?</p> <p>To prove the affirmative, Wilcox produced the receipt for the payment, which his principal had put into his hands. The receipt was in these words : “ August 9th 1819. Received of Thomas Gilliam executor of Jeffrey Gilliam deceased, 385 dollars and 29 cents, on account of the legacy bequeathed to me by the last will and testament of my father Jeffrey Gilliam. It is understood and agreed by the parties here mentioned, that should the above sum of 385 dollars 29 cents, on a fair settlement of said estate, be more than my proportion, the overplus to be returned by me, and on the contrary to receive any additional amount which may be due thereon. (Signed) Edward Gilliam.” The signature of Edward was proved, and indeed admitted to be genuine. And this paper was the only evidence adduced of the alleged payment.</p> <p>On the other band, it was proved, that on the 9th August 1819, the date of the receipt, Thomas Gilliam, the executor was in the state of Tennessee, and Edward Gilliam the legatee was in Virginia; and no attempt was made to prove, that the money was remitted by Thomas Gilliam to Edward, though, had such a remitment been really made, the fact of the remitment, and the manner of it, would probably have been easily susceptible of proof: there was, indeed, no pretence that the money had been remitted from Tennessee to Virginia. It was proved, that Thomas Gilliam left Virginia in July 1818, and returned in the spring of the year 1S20 ; and then, was without money to pay a just debt which he owed to a brother in law. And Edward Gilliam himself being examined as a witness, deposed, that when his brother Thomas returned to Virginia in 1820, he told him, that he had sold his interest in his father’s estate to Pearman; at which Thomas was very much displeased, and insisted, that Edward should nevertheless give him a receipt in full for his share of the estate; that Edward resisted this demand at first, but at length yielded to the importunity and the influence of his brother, and signed the receipt; that the receipt was in fact given by him in 1820, some months after his assignment to Pearman, and was antedated; and that Thomas had never paid him any thing.</p> <p>The court ordered an account of the executor’s administration of the estate of the testator Jeffrey Gilliam; and, in stating the account, the commissioner wholly disregarded the alleged payment by the executor to the legatee Edward Gilliam, of 385 dollars 29 cents. His report shewed a balance of 293 dollars with interest, &c. due from the executor to Pearman as assignee of the legatee Edward Gilliam; and a balance of 251 dollars with interest &c. due to the administrator of the other legatee William Gilliam. And the court approving the report, decreed, that Thomas Gilliam the executor, and the defendant Wilcox his surety, should pay those sums to the plaintiff, and to the administrator of William Gilliam, respectively, upon those parties respectively giving the executor the usual refunding bonds. Wilcox appealed from the decree to this court.</p>

<p>This was an attachment issued by a justice of Amherst, upon the application of Garland, against the effects of Johnson, for the rent of a house, which had not yet become due. The proceeding was under the statute 1 Rev. Code, ch. 113. § 9. p. 448.</p> <p>It appeared, that Garland had let the same premises to one Knight, for a term which was to end on the 1st December 1833; and during the continuance of that term, he let them to Johnson, for a year to commence on the day of the expiration of Knight's term. Then Johnson contracted with Knight for the residue of his term, and under that contract took possession of the premises.</p> <p>Before the new term had commenced, namely, on the 26th November 1833,—upon Garland, giving bond with surety as required by the statute, and making affidavit, that Johnson had agreed to pay him 200 dollars for the rent of the house then occupied by him, for a year to commence on the 1st December 1833 and to end on the 1st December 1834, and that he had just cause to suspect and verily believed, that Johnson would remove his effects from the rented premises before the time of payment of the rent,—an attachment was issued by the justice against Johnson's effects, returnable to the next term of the county court of Amherst. The attachment was levied by the sheriff on the goods of Johnson on the same 26th of November; and Johnson entered into a recognizance with surety, with condition to pay the 200 dollars rent on the 1st December 1834, together with all the costs and charges of the proceeding; upon which the sheriff restored the attached effects to him, and returned the attachment, stating in his return, his levy of the same, the recognizance given for the rent by Johnson, and the restoration of the attached effects to him.</p> <p>Johnson, at the next term of the county court, moved the court to quash the attachment; and Garland also appearing to oppose the motion, it was, by consent, transferred to the circuit superiour court of Amherst. And that court, upon a hearing, overruled Johnson's motion to quash, with costs. Johnson asked and obtained from this court a supersedeas to the judgment.</p>

This was a bill of interpleader, exhibited by Spooner in the circuit superiour court of .Petersburg, stating, that he was the attorney of Joseph Dudley prosecuting a suit for him for the recovery of a debt, and that Dudley, pending the suit, verbally authorized and directed him, out of the money he should collect in that suit, to pay Beers, Booth Sf St. John (merchants and partners) about 300 dollars. That Dudley afterwards died j and Edward Archer was his administrator.

<p>Detinue for a slave, by Townes against Boyle, in the circuit superiour court of Petersburg. The declaration demanded .the slave in question, in the name of Townes, “ curator and receiver appointed by order of the hustings court of Petersburg, sitting in chancery, in the case of Patterson's administratrix against Boyle's administrator and others," and contained two counts : the first count claimed the slave as Townes's own property, and counted on a bailment by him to Boyle; the second count declared, that Townes, “ as curator and receiver appointed as aforesaid, was lawfully possessed of the slave in question, as one of the slaves belonging to the trust fund in the said chancery suit mentioned, and so being possessed of the slave, casually lost the same out of his possession,” and the slave afterwards into the hands and possession of Boyle by finding came: yet Boyle, “well knowing the said slave to be one of the slaves belonging to the said trust fund, and of right, by virtue of the appointment of the said hustings court as aforesaid, to belong and appertain to Townes, curator &c. as aforesaid,” refused to deliver the slave to him &c. Boyle, 1. pleaded non detinet; and 2. put in a general demurrer to the declaration. The court held, that the law on the demurrer was for the plaintiff: the jury found for him on the general issue; and the court gave him judgment for the slave. The defendant Boyle applied to this court for a supersedeas to the judgment; which was allowed.</p>

Col. John Thornton, an officer in the Virginia line on continental establishment in the army of the revolution, was entitled under the resolutions of congress, to commutation of five years full pay in lieu of half pay for life, which he had never received, or, perhaps, even demanded, in his lifetime.

In 1820, Cuthbert Million, with Robert and John Ashby, his sureties, executed a bond to Thomas Chapman for 750 dollars, with interest thereon from the 11th February 1821, payable on or before the 11th February 1825; and in June 1821, Chapman assigned this bond to George Smith.

In an action of detinue for a Slave, brought by Nathaniel Pegram against David May, in the circuit court of Dinwiddie, and thence transferred to the circuit superiour court of Greenesville, there was a case agreed, stating the following facts. 1.

This was an action of detinue for two slaves, Rolla and Peggy, brought by Mason and Heath against Bond Spco. in the circuit superiour court of Petersburg. Plea, the general issue. The suit abated as to the plaintiff Heath, by his death, and was prosecuted by Mason alone.

Absolom M' Coy late of Berkeley county, died in the year 1803, and by bis last will and testament devised and bequeathed as follows: “I give and bequeath to Rebecca Crouch all my real and personal estate, wheresoever it may be found, during and all the time of her natural'life, and at the death of her the aforesaid Rebecca Crouch, all my negroes to be free and at full liberty—I give and bequeath, at the death of her the aforesaid Rebecca Crouch, to Thomas Fakes and George…

By deed dated the 11th May 1811, and duly recorded, between Richard Bland Lee of the £rst part, Zaccheus Collins of the second part, and Elizabeth Lee wife of the said Richard Bland of the third part,—reciting, that mrs. Lee had joined her husband in deeds of conveyance of two several parcels of land to several purchasers thereof, to whom he had sold the same for a sum exceeding 25000 dollars, that the “ sole” interest of mrs. Lee in the lands so sold and conveyed, was equal…

These two causes were argued and decided together. Held: that each and every count of the plaintiffs’ declaration was good and sufficient, and that the defendant’s second plea (of the statute of limitations • of Maryland) was not a good plea in bar; and therefore, upon the defendant’s demurrers to the declaration, and on the plaintiffs’ demurrer to the defendant’s second plea, the court…

This was an action of assumpsit on a promissory note, brought in the circuit court of Harrison, by the president, directors and company of the bank of Marietta, “ the holders of the note, against the administratrix of Jackson, the indorser thereof to the bank.

John Tinsley deceased, by his last wiil and testament bequeathed as follows: “I lend to my daughter Lucy Cross ten negroes, namely, Sultey, James, Jane, Bartlett, , Phehe, China, Ned, Joseph, Beck and Sarah, and I give her two young cattle; the negroes and the increase I give to the surviving children of my said daughter Lucy Cross to be equally divided between them at her death, but in case any of her children should die in her lifetime leaving lawful issue, then it is my…

<p>Testator, by Ms will, lends slaves and their increase to Ms grandson T. D. and his heirs of his body, and if he shall die without a lawful heir, then he bequeaths them to the children of his daughter E. L.—Held, this is an executory limitation after an indefinite failure of issue of the grandson, and therefore void; and the slaves vest in the grandson, in absolute property.</p>

<p>Q,uere, whether, in the case of a mercantile partnership formed without any agreement as to the proportion in which the losses are to be borne and the profits divided between the partners, the same are to be borne or divided equally between them, or arc to be apportioned in the ratio of their respective contributions ?</p> <p>Upon a petition for a rehearing of a cause in this court, at a term subsequent to that at which the court has entered a decree, but before that decree has been certified to the court below, on the ground that the decree was founded on a mistake in point of fact; the question was whether it was in the power of the court to allow the rehearing? And upon this question, four judges present were equally divided in opinion.</p>

<p>If, pending a suit in chancery for recovery of slaves and their profits, one of the slaves is sold by the defendant, and the plaintiffs ask and obtain a decree against the defendant for the value of the slave sold, they thereby waive their claim against the purchaser pendente lite for the specific property.</p>

Motion in the circuit court of King George county, under the 4-Sth section of the act concerning executions, 1 Rev. Code, ch. 134. p. 542.* On the 27th of April 1825, a writ of fieri facias issued from that court, in favour of Williatn I. Chapman administrator of Jane phapnan deceased, against William S. Jett and two others, for 876 dollars 65 cents, to be discharged by the payment of 438 dollars 32 cents, with interest from the 11th of October 1824 till paid, and the costs;…

<p>A writ of fieri facias was sued out of the circuit court for the town of Lynchburg, upon a decree of that court in chancery, directed to the sheriff of Franklin county, commanding him that of the goods and chattels of John Woods deceased, in the hands of Samuel Hairston senior, his administrator, to be administered, if so much thereof he hath, but if not, then out of the goods and chattels of the said Samuel Hairston senior, he should cause to be made the sum of 1006 dollars 72 cents with interest, which Peter Woods had recovered against the said Samuel Hairston senior, administrator of John Woods deceased ; also 68 cents costs. Upon this execution, the sheriff made the following return: “ There being no goods and chattels of John Woods deceased in the hands of the defendant Samuel Hairston senior, his administrator, I levied the execution, on the 20th day of March 1834, on three negroes and one wagon and team, the property of Samuel Hairston senior, the defendant, and duly advertised the sale of said property to be at Franklin courthouse, on the 5th day of May 1834, it being court day, that being the day and place appointed for the sale thereof; at which time and place, the said property was not delivered agreeably to the bond taken for that purpose, and herewith returned as forfeited.” The bond was from Samuel Hairston senior and Samuel Hairston junior to Peter Woods, with a condition reciting that Woods had sued out of the circuit court óf the town of Lynchburg, a writ of fieri facias “ against the goods and chattels of the above bound Samuel Hairston senior, administrator of John Woods deceased.” The circuit court awarded execution on the forthcoming bond against the obligors; and they obtained a supersedeas, upon a petition assigning as error the variance between the execution and the recital thereof in the condition; for which Glasscock’s adm’x v. Dawson, 1 Munf. 605. was cited as authority.</p>

The act of incorporation of The James River and Kanawha Company (Acts of 1831-2, ch. 82.

Josiah Shelton exhibited a bill in the superiour court of chancery of Williamsburg, against Thomas Russell curator of Willis Wilson deceased, and John Shepherd executor of Benjamin Coleman,—alleging, that the plaintiff Shelton and Harriet the wife of Baker Rudd being entitled as tenants in common to a parcel of land in York county, Shelton and Rudd contracted with Wilson and Coleman, during their lives, to sell the same to them for 2200 dollars; and Wilson and Coleman being…

In an action of covenant, brought by Toncray against White, in the circuit court of Washington, the declaration set forth a covenant, dated the 25th August 1823, between the plaintiff Toncray, a carrier, and the defendant White, a manufacturer of salt at Saltville (the name of King’s salt works in Washington), to the following effect-— that the plaintiff should transport for the defendant, from Saltville, down the Holst on and Tennessee rivers, from 1200 to 5000 barrels of…

Assumpsit by Disher against Iiayser executor of Circle, in the circuit court of Alleghany. The declaration complained of Kayser executor of Circle, and contained five counts.

<p>A testatrix, by the first clause in her will, desires that her negro man Kil shall have his freedom, and receive from her estate $ 50. By the second, she gives to D. A. her negro Harry, and directs that D. A. receive from her estate $ 100 for the purpose of supporting Harry during his life. By the third, she gives to S. C. $>20. By the fourth, she gives to D. A. A. one buffet and one large trank; and to K. D. one trunk and one patched bed cover. The fifth and last clause is as follows: “I give to my negro Kit above named a blue cotton bed cover, and to the above named negro Harry one yarn bed cover. I do hereby appoint James Bedgood my executor to this my last will and testament, and that he shall receive the balance of my estate, if any.” The testatrix, besides some furniture worth about $ 200, dies possessed of $ 2978 in money.—Held, that Bedgood is entitled to this money, as well as to any other balance of the estate.</p> <p>Whether parol evidence is admissible in such a case, to shew that the testatrix did not intend that money should pass by the residuary clause.</p>

Assumpsit in the circuit court of Caroline county, by Hennj Burruss executor of the will of Thomas Burruss deceased, against John Sutton. Pleas, non assumpsit and non assumpsit within five years. The action was brought the 18th of July 1826, to recover a balance of ¿£4-8. 14. 7. alleged by the plaintiff to be due from the defendant to the said plaintiff’s testator.

<p>A person owning lands may by parol authorize another to make a contract for the sale thereof; and if a contract be made under such authority, the owner of the lands may be charged by virtue of the contract, provided there be a memorandum thereof in writing, signed by the person authorized to make it.</p> <p>The signing by the agent of his own name is sufficient. The statute does not make it indispensable that he should sign the name of the party to be charged therewith.</p> <p>When the owner of lands authorizes another to make a contract for the sale thereof, the authority of the agent to receive so much of the purchase money as is to be paid in hand, is a necessary incident to the power to sell.</p> <p>Case in which, upon the state of the pleadings and proofs between the plaintiff and defendants, it was not deemed proper to decree in favour of one defendant against another; and in which the court would not delay the cause, to have the account between the codefendants adjusted before a commissioner.</p>

On the 23d of April 1798, judgment was obtained in the district court holden at King and Queen courthouse, by Thomas Smart for the benefit of Buchanan £f Young, against William Robinson and Beverley Robinson, for £ 1564. and costs, to be discharged by the payment of ¿£782. with interest from the 8th of October 1796 till paid, and the costs.

These were actions in the circuit court of Buckingham county, brought under the statute, 1 Rev. Code, ch. 78. § 13. p. 279.* (one of them at the relation,of Walton, Hendrick Sf Company, the other at the relation of Walton df Garland) upon a bond given by Price Perkins on the 12th of July 1824, conditioned that he should truly and faithfully execute and perform the office of sheriff of Buckingham, during the time of his continuance therein.

Ejectment for a parcel of land in the county of Berkeley, brought by Thomas Swann against Adam Stephen in his lifetime, in the circuit court of Berkeley, as early as 181-3. Held: that the law was for the plaintiff, and gave him judgment according to the verdict: from which the defendants appealed to this court.

<p>Action on the case by James M’Million against William Dobbins, in the circuit court of Braxton county, for a deceit in the sale of a horse. The defendant being arrested and not appearing, judgment was enlered in the office against him, for such damages as the plaintiff had sustained, which damages were to be ascertained by a jury. At the next term, the cause was continued for the defendant; and the term after, a jury was impanelled. Although it did not appear by the record that the defendant had pleaded at all, the jury were nevertheless “ elected, tried and sworn the truth .to speak upon the issue joined.” At the trial, the court was of opinion that in order to sustain the first count in the declaration, it was necessary for the plaintiff to prove, substantially, that the defendant warranted the horse to be sound ; and that in order to sustain the second count, it was necessary to prove, in substance, that the defendant undertook and faithfully promised the plaintiff that the horse was sound. The court was of opinion that the evidence was not sufficient to sustain the action on either count, and so instructed the jury. Verdict for defendant, and judgment thereupon; to which judgment a supersedeas was allowed.</p>

James Tapscott, on the 23d of November 1830, commenced a suit in equity, in the circuit court of Augusta, against William Weaver and Elihu Trimble.

On the 24th of August 1824, Philip Dull and John H. Peck qualified in the county court of Augusta as administrators of George Dull junior deceased, and executed an administration bond, with Robert Grass as their surety, to John Wayt and others, justices of the county court, in the sum of 400 dollars.

In an action of covenant brought by Isaac Black against Henry Gilmore in the county court of Rocking-ham, the declaration set forth, that by an indenture made the 27th of March 1832, the said Gilmore did rent and lease to the said Black a tract of land, to have and to hold the said tract so long as he the said Black should live, but upon certain conditions, to wit, that Black and his family should conduct themselves to Gilmore and the neighbours around him, in a peaceable…

<p>Sarah Chalmers of the county of Prince William died in 1813, having made her will, which contained the following bequest: “ Item, I give and bequeath to Jane 'Ewell during her natural life, the following negroes, Ccesar, Johnston, Lacy, Jacob and Suclcy and her increase, and then to revert to the heirs of her body forever. It is my will and desire that the said Jane Ewell shall have the above mentioned negroes free from any control of her husband Alfred Ewell in any wise whatsoever. And for this purpose do I appoint James E. Heath, attorney at law, as a trustee for the management of the said property for the benefit of the said Jane Ewell and her heirs.” The will was duly recorded, and Heath acted as trustee under it, until James P. Strother was substituted for him. This substitution was by virtue of a decree of the superiour court of chancery holden at Fredericksburg. The terms of the decree were complied with by Strother, and he received possession of the negroes and their increase from Heath. On the 2Sth of September 1828, Strother (who then resided in Russell county, and who had the slaves in his possession in that county) with the consent and approbation of Jane Ewell, permitted Benjamin Plummer, who had intermarried with Maria Antoinette, a daughter of the said Jane Ewell, and who resided in the county of Prince William, to take Eliza, a daughter of the slave Sucky mentioned in the will, upon condition that Plummer should, at his own expense, return her to Strother, with her children, if she should have any, whenever demanded. Eliza, at this time, had no children. Plummer, upon taking her on the day mentioned, carried her to his residence in the county of Prince William, where he kept her until the 5th of August 1833, on which day he sold her and two children of hers, born after the said 28th of September 1S28, to a negro trader by the name of Daniel. The negro trader immediately removed Eliza and her children out of the state of Virginia, to Alexandria in the district of Columbia, a distance from Plummer's residence of 12 or 15 miles, and placed them in the bands of his agent James M'Daniel, who took them to Richmond in Virginia, and there sold them and another slave to John L. Lightfoot on the 7th of September 1833, for the sum of 625 dollars. Lightfoot had possession of Eliza and her children from the time of his purchase until the 15th of November 1833, when Strother took possession of them in the county of Smyth, while Lightfoot was in the act of removing them out of the state through that county.</p> <p>On the 17th of November 1835, an action of detinue was commenced in the circuit court of Smyth county, by Lightfoot against Strother, to recover Eliza and her children. The general issue was pleaded. And at the trial, the jury returned a special verdict, finding the facts before mentioned. It found also the following additional facts: That about the first of August 1833, Strother, having heard that Plummer was not doing well, and was not likely to continue to be a safe person to trust with the possession of Eliza and her children, wrote to Jesse Weems, in the county of Prince William, authorizing and requesting him, as his agent, to take possession of Eliza and her children : that the said authority and request were not received by Weems till the --day of August 183-3, some days after Eliza and her children had been sold to Daniel, and conveyed out of the state by him : and that on Weems’s receiving the request and authority aforesaid, he would forthwith, as the agent of Strother, have demanded Eliza and her children, or taken legal means to recover the possession of them, but for their previous sale to and immediate removal by Daniel.</p> <p>The circuit court adjudged the law upon the special verdict to be for the defendant; and a supersedeas was allowed to the judgment.</p>

Writs of fieri facias were sued out of the circuit court of Botetourt against the goods and chattels of William D. Tinsley, upon two judgments obtained in that court, one by John S. Wilson Sf Co. and the other by Robert Snoddy.

<p>On the 24th of March 1824, William Rice executed a sealed obligation to Zebulon B. Scates for 121 dollars 20 cents, payable the first of August 1825, under a. penalty of 242 dollars 40 cents. Zebulon B. Scates assigned this penal bill to Joseph D. Scates on the 16th of February 1824. Joseph D. Scates reassigned it to Z. B. Scates the 26th of October 1827. And Z. B. Scates, on the 10th of March 1831, assigned it to Wilson fy Edmunds, for value received.</p> <p>Soon after this assignment, Wilson fy Edmunds brought an action of debt against Rice in the county court of Charlotte. The defendant having pleaded payment, by consent of the parties, the matter in difference between them in the suit was submitted to the determination of two arbitrators, whose award was to be made the judgment of the court. The arbitrators, after hearing the parties and examining the evidence offered, awarded that the bond be credited by 70 dollars, paid on the 11th of December 1826 to J. D. Scates, who then held the bond as assignee of Z. B. Scates. There being a balance of 73 dollars 39 cents, with interest from the 1st of January 1821, due from Z. B. Scates to Rice on his guardianship account, and this credit, as well as the other, having arisen before the assignment to Wilson dp Edmunds, and the two together being more than would pay off the bond, the arbitrators directed that the bond should be credited by so much of the said balance as would, with the first credit allowed, be sufficient to discharge the bond. The award consequently was, that Wilson dp Edmunds were not entitled to recover any thing of Rice by their suit. On the 5th of March 1833, the court rendered judgment in favour of the defendant Rice, pursuant to this award.</p> <p>On the 22d of June 1836, Wilson dp Edmunds commenced an action in the circuit court of Smyth county against Zebulon B. Scates their assignor. Their declaration contained two counts. The first, after setting forth the obligation and assignments, stated, that by the assignment to the plaintiffs, the defendant undertook and promised the plaintiffs that the sum of 121 dollars 20 cents, mentioned in the obligation, was justly due and owing by Rice, and in no wise paid off and discharged by offsets against, or payments to, either the defendant or J. B. Scates ; and it then averred that the said sum of money, at the time of the assignment to the plaintiffs, was not due and owing by Rice, but had been paid off and discharged by legal offsets and payments existing previous to and at the time of the transfer to the plaintiffs, and that the same, or any part thereof, was not recoverable at law from Rice. The second count, after setting forth the obligation and assignments, stated the suit against Rice, the submission of the same to arbitration, the award of the arbitrators, and the judgment thereupon.</p> <p>The defendant demurred generally to each count 0f the declaration, and the plaintiffs having joined in the demurrer, the matter of law was argued, and adjudged for the plaintiffs. The defendant then pleaded non, assumpsit,, and that more than five years elapsed after the cause of action accrued, before the institution of the suit; upon which pleas issues were joined.</p> <p>At the trial, the only evidence introduced by the plaintiffs to support their action was the record of the proceedings and judgment in the suit against Rice. Whereupon the defendant asked the court to instruct the jury, that if they should believe, from the evidence, that the defendant did not consent to the reference or arbitration mentioned in the second count of the declaration, and had at no timo sanctioned the same, and that he had never expressly promised or agreed to pay the claim demanded in that count, and had never acknowledged that the said claim or demand was due from him to the plaintiffs, then the plaintiff's were not entitled to recover upon the second count; which instruction the court refused to give, and the defendant excepted to the refusal.</p> <p>The jury returned a special verdict, finding that at the date of the assignment to the plaintiffs, viz. on the 10th of March 1831, nothing was due on the obligation, but the same had been fully paid to J. D. Scates a former assignee, and to the defendant; finding also that this fact was unknown to the plaintiffs until after the rendition of the judgment in the suit against Rice, the record of which was set forth at large; and finding that more than five years had elapsed since the assignment to the plaintiffs on the 10th of March 1831, before the institution of this action, but that less than five years had elapsed between the rendition of the judgment in the suit against Rice, and the institution of this action.</p> <p>The circuit court adjudged the law upon the special verdict to be for the plaintiffs; and a supersedeas was allowed to the judgment.</p>

The reporter not having been furnished with the record in this case, the state of it is extracted from the opinion concurred in by a majority of the judges. M'Korkel having brought an action of assumpsit against Rankin in the county court of Augusta, obtained a verdict and judgment therein, in August 1814. Thereupon Rankin exhibited a bill of injunction in the superiour court of chancery at Staunton.

Robert Snodgrass made his will on the 3d of September 1806, whereby he desired all his just debts to be paid by his executors, for which purpose he subjected his estate in the first instance.

<p>The will of James Parsons was admitted to record in the county court of Hardy on the 13th of April 1813; and on the same day, Rebecca Parsons and Isaac Parsons qualified as executrix and executor.</p> <p>By a transcript from the records of the said court, it appeared that the will contained, amongst other things, the following clause:</p> <p>“ I give and bequeath to my three daughters Betsy, Amanda Malvina and Rebecca Parsons 1000 dollars each, to be paid to them out of my home place, by my son James Parsons, when they arrive at twenty-one years, and to their heirs. And to Betsy I give negroes Sally and Sambo (son of Jane); to Amanda Malvina I give negroes Viney and Jerry; and to Rebecca I give negroes Helen and Tom. All this I bequeath to my three daughters and their heirs forever.”</p> <p>Rebecca having intermarried with William M’ Cracken, a bill was filed by M’ Cracken and wife in the circuit court of Hardy county on the 20th of November 1S33, setting forth, that the executors never assented to the bequest of the said slave Helen, but suffered the testator’s son James Parsons to make sale of her to George Fisher, who still had her and her children, which were numerous, in his possession, and refused to give possession of them to the complainants. The executrix and executor were made defendants, together with James Parsons and George Fisher.</p> <p>Rebecca Parsons the executrix answered, that immediately after the death of the testator, his will was opened and examined by her and her coexecutor, with a view to its execution and the distribution of his property according to its provisions; when it became apparent that the slave Harriet was bequeathed to his daughter Rebecca, the female complainant, to whom she was accordingly delivered. Respondent stated, that although there might to a stranger be some difficulty in deciphering the name of the female slave bequeathed to Rebecca, yet she encountered none, inasmuch as she was acquainted with the intention of the testator, and the general understanding of the family as to that intention, previous to his death. Harriet was always regarded in the family, previous to the testator’s death, as the slave intended to be given to Rebecca. After he died, and Harriet was delivered to Rebecca, she was controlled, hired out &c. by Rebecca, until she the said Harriet died. At the time when Fisher was negotiating with James Parsons for the purchase of Helen, Rebecca was present, advised him to purchase her, and represented her to be an honest, faithful and industrious servant.</p> <p>Isaac Parsons the executor stated in his answer, that shortly after the testator’s death, to wit, in the winter of 1814-15, he removed to the county of Randolph, where he remained about seven years, and that he had not controlled or made any distribution of the property of the testator; that, in fact, the whole estate, together with a copy of the will, was delivered to James Parsons, who, by its provisions, was made responsible for the testator’s debts.</p> <p>The clause of the will creating this responsibility is as follows :</p> <p>“ I give my said son James all out surveys, and all property not willed or bequeathed, and all debts due me, and subject him my said son to the payment of all my just debts and funeral expenses, and direct that all property undivided or willed be disposed of for this purpose, and the surplus, if any, bo his, if a deficiency be made good by him.”</p> <p>James Parsons answered, that shortly after the testator’s death, the executors delivered him the negro girl Helen, and he held her until 1821, when she was levied upon by the sheriff, under an execution of Nicholas guardian of the heirs of Jonathan Parsons against the testator’s estate, and in order to discharge the same, he sold her and her child to Fisher for 400 dollars, which was applied in payment of the execution. Respondent stated, that after the death of the testator, a copy of the will was procured, and, as well as he recollects, the name of the slave bequeathed to Rebecca was there written Harriet; that it was understood by all parties that Harriet was the slave bequeathed to her; and he never heard otherwise, until M'Grackcn brought a suit at law against Fisher. After Rebecca came of age, he heard her say that she believed Harriet was the girl intended for her, and that she would rather have had her, if she had not died. Respondent relied upon the statute of limitations in bar of the claim, and prayed that he might have the benefit of it as if specially pleaded.</p> <p>Fisher stated in his answer, that upon examining the original will, the court would perceive that the name of the female slave had been altered; that it appeared, from the colour of the ink, to have been first written Helen, and to have been subsequently altered with paler ink to some other name, supposed to be Harriet; that the change was manifest in the two letters “jt,” which appeared in paler ink. He relied upon the understanding, of the family that Harriet was the slave bequeathed to Rebecca, and upon the statute of limitations; and insisted that even if the slave purchased by him was the slave bequeathed to Rebecca, and if the statute of limitations should not be a bar, yet as Rebecca accepted Harriet as the slave bequeathed to her, held her in possession until she died, was present when respondent purchased, and set up no claim, and she and her husband had so long acquiesced in the transaction, a court of equity should not sanction the claim.</p> <p>The plaintiffs replied generally to the answers, and depositions were taken on both sides, the purport whereof is mentioned in the opinions of the judges.</p> <p>At the hearing, the circuit court decreed in favour of the complainants against James Parsons for 400 dollars (that being the price at which it was agreed by the parties that the female slave in the bill mentioned was sold by James Parsons to George Fisher on the 15th of June 1821) with interest from the said 15th of June 1821 till paid, and the costs. And the decree provided that if the execution should prove ineffectual, the defendants Isaac Parsons and Rebecca Parsons were then to pay the complainants so much as they should fail to make from James Parsons, and execution might issue against them for the same. For the costs, the decree was joint against the said three defendants ; and as to Fisher the bill was dismissed.</p> <p>On the petition of James Parsons, an appeal was allowed him; and the parties consented of record that the cause should be tried at Lewisburg.</p>

Suit for freedom in the circuit court of Kanawha county, by William Hewlett and Taylor Hewlett, suing in for-ma pauperis by Lavinia their mother and next friend, against Andrew Paries.

<p>Upon the death of a defendant in detinue, if his administrator consent that the cause shall stand revived against him, such consent places the cause in the same situation that it would be in after the service of a scire facias against the administrator, alleging that the property had come to his possession and was detained by him.</p> <p>In such a case, if the administrator, instead of pleading de novo, go to trial upon the plea put in by his intestate, he cannot, after verdict against him, arrest the judgment because of his own failure to plead anew.</p> <p>The judgment against the administrator, in such a case, is personal against him for the property or its alternative value; but it ' provides, as to the damages and costs, that the same are to he levied of the goods and chattels of the intestate, in the hands of the administrator.</p>

<p>This is the sequel of the case which was before this court in November 1826, reported in. 4 Rand. 504.</p> <p>It was an action of assumpsit, brought by Ralston f Pleasants against Brown Sf Rives in the late superiour court of law for Henrico county, in July 1817, upon a charter party in the following terms :</p> <p>“ Charter party made and entered into this ninth day of November 1809, between Ralston Sf Pleasants of one part, and Brown 8f Rives of the other, all residents of the city of Richmond, witnesseth that the said Ralston Sf Pleasants do hereby engage the brig Commerce, commanded by Dixon Brown, to take a cargo of tobacco and flour from Richmond, Virginia, to Cadiz direct, at 5 pounds per hogshead and 11 shillings and 3 pence per barrel, british sterling, freight, with 5 per cent, primage. Some doubts having arisen in the minds of the parties concerned, of the certainty of the vessel’s being permitted to discharge her cargo at the aforesaid port of Cadiz, and if it shall so happen, on her arrival at that place, that she is not allowed (as now contemplated) to discharge there, but on the contrary shall be ordered off, it is understood and agreed that the agents of the shippers may direct her to any permitted port in Portugal or Spain, to the island of Madeira, or any of the Azores, more commonly called the Western Islands, by their paying, in addition to the above freight of 5 pounds and 11 shillings and 3 pence per hogshead and barrel, whatever may be the customary freight from Cadiz to the port they may order her, the same to be agreed upon by the parties’ agents where she discharges ; the concerned understanding that twenty running days shall be allowed for unloading or discharging the said vessel after her arrival at the port of destination, and the master notifying the consignee that he is ready to unload ; and for every additional day’s detention the before named shippers shall pay 50 dollars demurrage, quarantine always excepted, provided it is enforced with such rigour as to prevent vessels from discharging and landing their cargoes during its continuance, and not otherwise.</p> <p> Teste Ralston Pleasants. </p> <p> Robert Coventry. Brown Sf Rives. </p> <p> Dixon Brown.” </p> <p>The declaration contained eleven counts. The 1st, after setting forth the agreement, the promise to perform all things in the agreement expressed or fairly implied, and that it was fairly implied that the defendants would provide and have, at the port of destination of the vessel, a consignee ready, on her arrival, to be notified thereof by the master, and to receive the cargo if it should be permitted to be discharged, averred that the plaintiffs did take on board the vessel a large cargo of tobacco and flour, the property of the defendants, which was consigned by the defendants to James C. Wardrop at Cadiz; that the vessel with her cargo proceeded with all convenient dispatch to Cadiz, where she arrived on the 19th of January 1810, where and at which time the master was ready to give notice of his arrival to the consignee James C. Wardrop, and to deliver the cargo to him according to consignment, if the said Wardrop had been at Cadiz; but the said Wardrop was not at Cadiz: whereby, and through the default of the defendants, it became impossible for the master to notify the consignee of his arrival. It was further averred that there was no quarantine or other impediment to the immediate landing of the cargo at Cadiz on the arrival of the vessel, except that the defendants had not provided a consignee to be ready at the port of Cadiz to receive the cargo. And then it was alleged that by reason of the failure of the defendants to provide and have ready such consignee, the vessel with her cargo was detained in the port a long time ; at the expiration whereof the master, acting for the benefit of the concerned, determined to submit the cargo to the disposition of the vice consul of the United States at Cadiz (the consul himself being at that time in the United States); under the direction of which vice consul a part of the cargo was landed at Cadiz, on which part the defendants paid to the plaintiffs the freight stipulated by the agreement; but from the circumstance of the vice consul’s being occupied by duties of a public nature, or other causes to the plaintiffs unknown, but proceeding from no default on the part of themselves or their agents, 100 hogsheads of tobacco and 51 barrels of flour, part of the cargo, were suffered to remain on board the said vessel at Cadiz from the 19th day of January 1810 until the 9th day of March following (durinsr all which time neither Wardrop nor any other con- ° L . . signee or agent of the defendants was at Cadiz to receive the said 100 hogsheads of tobacco and 51 barrels of flour, although during all that time no quarantine or other legal impediment existed to the landing and discharge of the cargo of tobacco and flour, and the master was ready at all times to deliver and discharge the cargo); on which last mentioned day the vessel, with the remaining cargo of tobacco and flour on board, without any fault or want of care on the part of the plaintiffs, or of the master and mariners belonging to the vessel, was, by a violent gale of wind, driven on shore on the coast of the bay opposite to Cadiz, which coast was in possession of the french army, then investing- Cadiz in a hostile manner, where the said vessel was stranded, and thereupon was seized and burned by the said french army, and the remaining cargo was by the french army, without any default, negligence or want of care on the part of the plaintiffs, or of the master and mariners belonging to the vessel, wholly destroyed. And so the plaintiffs said that the detention of the vessel at Cadiz, and the nondelivery and subsequent loss of the remaining cargo, proceeded wholly and entirely from the default of the defendants in not providing and having ready at Cadiz a consignee to receive the cargo. By means of all which premises the defendants became liable to pay the plaintiffs the freight and primage upon the said 100 hogsheads of tobacco and 51 barrels of flour, and demurrage for 21 days more than the laying days in the agreement mentioned.</p> <p>The 2d count was indebitatus assumpsit for freight, primage and demurrage; the 3d, quantum meruit for carriage and demurrage; the 4th, indebitatus assumpsit for freight and primage; the 5 th, indebitatus assumpsit for demurrage; the 6th, quantum meruit for carriage; the 7th, quantum meruit for demurrage; the 8th, indebitatus assumpsit for work and labour; the 9th, 10th and . . 11th were counts tor money paid, laid out and exPent^e^> ^01' money had and received, and upon an insimul computassent.</p> <p>The general issue being pleaded, a special verdict was found; upon which the superiour court, being of opinion that the law was for the plaintiffs, and that they were entitled to recover freight, primage and demur-rage, rendered judgment in their favour for the amount of damages conditionally assessed by the jury. An appeal having been taken by the defendants, this court set aside the special verdict, as not sufficiently certain, and awarded a venire de novo. The particulars in which the special verdict was considered to be defective, are stated in the opinions delivered by judges Grden and Brooke, 4 Rand. 531, 2. 535, 6.</p> <p>After the cause went back to the superiour court, a second special verdict was found, in the following terms: “We of the jury find, 1st, that on the 9th day of November 1809, an agreement of charter party was entered into between the plaintiffs and the defendants, which we find at large in these words, to wit(Here the charter party w'as recited.)</p> <p>“ 2dly. That, in pursuance of the said recited agreement, the defendants shipped on board the said brig Commerce a cargo of 100 hogsheads of tobacco and 750 barrels of flour, and addressed the ship and cargo to James C. Wardrop at Cádiz, their agent and consignee.</p> <p>“ 3rdly. That the said brig Commerce, so laden, proceeded on her voyage, and arrived safely with her cargo at Cadiz on the 19th of January 1810; and the said Dixon Brown, her master, immediately reported such his arrival to Richard, S. Hackley, then acting consul of the United States at Cadiz, and also agent of the defendants there in the manner and to the extent herein after mentioned, and notified to the said Hackley that he, the master, was then and there ready to deliver the cargo according to the charter party.</p> <p>“ 4thly. That according to the course and usage of trade in such cases at the said port of Cadiz, vessels arriving there with cargoes are anchored in the bay of Cadiz, which is a spacious one, and the cargoes are deliverable alongside the vessels, to lighters sent from the shore by the consignees or agents of the shippers, and it is not the duty of masters to land their cargoes there in the ordinary course of trade; and there is no custom or usage of merchants other than the law merchant, either general, or particular respecting the particular trade to which the said recited charter party relates, or local respecting the trade between Richmond and Cadiz, existing at Richmond or at Cadiz, which affects the interpretation or effect of the said recited charter party, other than the usage and course of trade at the port of Cadiz, in this finding above set forth.</p> <p>“5thly. That before the arrival of the said brig Commerce with her cargo as aforesaid, the said James C. Wardrop, the agent of the defendants, and the consignee thereof, had left and was at that time absent from Cadiz, at Valencia in Spain, and so remained until the month of July 1810; and Richard S. Hackley, then acting consul of the United States at Cadiz, and residing there, was the agent of the said Wardrop, the consignee as aforesaid, in regard to the flour part of the cargo. The said Hackley was not authorized by the said War-drop to direct how the tobacco should be disposed of, without particular instructions relative to the said tobacco from the said Wardrop, to whom the said Hackley transmitted the letters of the defendants to the said Wardrop touching the said vessel and cargo, which were brought by her, and delivered to the said Hackley unopened ; and the said Dixon Brown, the master of the said vessel, then and there had knowledge of such agency of the said Hackley in this particular.</p> <p>“ 6thly. That shortly after, to wit, about 10 days from the arrival of the said vessel and cargo at Cadiz, the said HacMey did receive instructions from the said Wardrop relative to the tobacco part of the said cargo, and undertook to, act as the agent of the defendants concerning the same; and the said HacMey gave notice to the said Dixon Broiun, the master of the said vessel, that he the said HacMey had received such instructions relative to the said tobacco from the said Wardrop, but he gave the said master no directions whatever at any time touching that part of the cargo", nor did the said master apply for any such directions.</p> <p>“ 7thly. That between the 19th day of January 1810 and the first of March following, inclusive, the said HacMey received from on board the said vessel 741 barrels of flour, part of the said cargo, and paid the freight thereon.</p> <p>“Sthly. That at the time of the arrival of the said vessel at Cadiz, France and Spain being at war, a french army had invaded Spain, and about the same time, or shortly after, was marching towards Cadiz, a strong place of war, open to the sea, and having its port and anchorage for shipping safe from any sudden attack by land, and the british, then the allies of Spain, having command of the sea on the Spanish coast.</p> <p>“ 9thly. That on the approach of the french army, great numbers of Spanish troops came to Cadiz, and other Spanish subjects took refuge there, and all the lighters and boats usually employed in transporting goods from and between ships in the harbour, and the town, were subject to impressment, and most of them were actually impressed by the government.</p> <p>“ lOthly. That owing to this cause, many vessels remained unloaded in the harbour of Cadiz aforesaid from the 28th day of January 1810 (when the french army was marching to and threatened Cadiz) until the 7th day of March following; it being with the greatest difficulty that boats and lighters could be procured, and when procured they were constantly liable to be impressed. But though there was such difficulty, yet there was not, during the whole time, from the time of the arrival of the said vessel at the port of Cadiz, until the time when she was lost and destroyed in manner , . - . ...... £> i . ¶ hereinafter mentioned, any impossibility ror the said IlacMey to have procured boats and lighters to raise the whole cargo from the said vessel, and to, discharge her.</p> <p>“ llthly. That the said 100 hogsheads of tobacco and 9 barrels of flour remained on board the said brig Commerce until the said 7th of March 1810, when, by a violent gale of wind, and without,any fault of the master or mariners, the said vessel, with the said part of her cargo on board, was driven from her moorings in the harbour of Cadiz, upon the neighbouring coast of Spain, at a place in the possession of the french troops, by tvhom the vessel and cargo were burnt and destroyed.</p> <p>“ 12thly. That at the time of the arrival of the said vessel at Cadiz, there was no market at that place for tobacco, and it was not intended by the said Wardrop, or by the said IlacMey, after the latter undertook to act as agent in relation thereto, that the said tobacco should remain at Cadiz (unless it could be sold at a certain price, which could not be obtained) but it was by them intended that the same should be reshipped and sent to England: and that the said tobacco was purposely left by the said IlacMey on board the said vessel, until he could make up his own mind what to do with it.</p> <p>“ 13thly. That the said master of the said vessel was at all times, from the time of the arrival of the said vessel at the port of Cadiz, until the time when she was lost and destroyed in manner aforesaid, ready to deliver the whole, and each and every part of the said cargo, to the said consignee or his said agent, if they or either of them had sent boats or lighters to take the same from the vessel; and of this the said IlacMey, agent of the said consignee as aforesaid, was, at and “ . . r . during all the time, well apprized.</p> <p>“ 14thly. That the said master of the said vessel did << in no wise give any consent to the delay of the said consignee, or his said agent, to take the said cargo, or any part thereof, from the said vessel, and to discharge the said vessel, except so far as he was bound by the charter party.</p> <p>“ 15thly. We find that by the general custom of merchants, the demurrage agreed upon for detaining a vessel beyond her lay days, where there was no stipulation to the contrary, became due and payable daily.</p> <p>“ On the whole matter, if the court shall be of opinion, on the facts above stated, that the plaintiffs are not entitled to recover in this action, we find for the defendants. If the court shall be of opinion that the plaintiffs are entitled to recover for the demurrage only, then we find for the plaintiffs 1050 dollars, with six per cent, per annum interest thereon from the 7th day of March 1810 till paid, damages. If the court shall be of opinion that they are entitled to recover freight and primage only, then we find for the plaintiffs 2209 dollars 64 cents, with six per cent, per annum interest thereon from the 7th day of March 1810 till paid, damages. And if the court shall be of opinion that the plaintiffs are entitled to recover freight, primage and demurrage, then we find for the plaintiffs 3259 dollars 64 cents, with like interest from the 7th day of March 1810 till paid, damages.”</p> <p>The superiour court held that the law upon the special verdict was for the plaintiffs, and that they were entitled to recover freight, primage and demurrage; and accordingly rendered judgment in their favour for 3259 dollars 64 cents, with interest from the 7th of March 1810 till paid, and their costs of suit. From which judgment Brown Sf Rives, the defendants, again appealed to this court.</p>

<p>Trover by M' Coij against Herbert, in the circuit superiour court of law and chancery for Norfolk county, to recover the value of certain timber trees converted by the defendant. At the trial on the plea of not guilty, “ ^ the jury found a verdict for the plaintiff for 125 dollars damages, subject to the opinion of the court on a case stated and agreed between the parties, which was as follows:</p> <p>“ It is agreed that on the 2d of January 1828, a contract was entered into between the defendant Herbert and Robert Carson junior, in the words and figures following : ‘ An agreement between Edward Herbert of Norfolk county of the one part, and Robert Carson junior of the other, sheweth that the said Edward Herbert has sold to the said Robert Carson fifty white oaks of his the said Robert Carson’s choice, for the sum of 125 dollars, the payments to be as follows : on the first day of April next, 60 dollars; on the first day of July next, 32 dollars 50 cents ; on the first day of October next, 32 dollars 50 cents. In witness whereof the parties above mentioned have set their hands and seals, this 2d day of January 1828.</p> <p>******** Edward Herbert I Seal-1 ********</p> <p>******** Robert Carson jr. 1 seal. 1 ********</p> <p>“ That on the 3d day of January 1828, a contract was made between the plaintiff M’Coy and the said Carson, and endorsed upon the contract between Carson and Herbert, in the words and figures following: * For value received from Josiah M ’ Coy, I sell to him the within fifty oaks. January 3. 1828.</p> <p> Robert Carson jr.’ </p> <p>“That the sums were paid afterwards by Carson, which were stipulated to be paid by the contract.</p> <p>“ That in the month of February 1828, the plaintiff M'Coy went on the lands of the defendant Herbert, in the absence of Herbert, and made choice of 40 white oak trees there standing and growing, and marked them ; there being no other (or at least not many other) trees growing on the land, suitable for said M' Coy’s purPose* There were many more trees of various kinds upon the land, including many more white oak trees, but the latter not of such sizes and character as answered M’ Coy’s purpose, which was to supply timber for the navy.</p> <p>“ That in 1832, before the institution of this suit, all the trees thus marked by M’Coy were cut down by the defendant, and by him sent to Boston to be applied to naval purposes.</p> <p>“ At the time the contract was entered into between the defendant and Carson, the defendant owned a tract of land in the county of Norfolk, on which were growing the trees marked by M’Coy and cut by Herbert, as above mentioned. This land, at the time of the contract with Carson, was in Carson’s possession as tenant by the year, and Carson continued in possession as tenant from year to year, till after the timber was cut by Herbert.”</p> <p>The circuit court held that the law upon the case agreed was for the defendant, and accordingly rendered judgment in his favour. On the petition of M’Coy, this court awarded a supersedeas to the judgment.</p>

<p>A. in consideration of a certain price per acre to be paid him by B. undertakes to procure C. who is in possession of a tract of land as owner thereof, to make a good deed for the same to B. with general warranty; A. purchases the land from C. pays him the purchase money, and directs him to make the conveyance to B. which is made accordingly, with general war- • ranty; B. executes to A. his notes for the price agreed upon between them, and takes possession of the land, which he holds without eviction or disturbance: Held,</p> <p>1. Equity will not injoin A. from collecting the money due him by B. whatever be the defects of C.’s title to the land.</p> <p>2. No eviction or disturbance of B.’s possession having taken place, defect of title is no ground for his coming into equity against O.</p> <p>B. represents to A. that he had been desirous of purchasing C.’s land, but had not done so, from inability to advance funds as speedily as C. required, and that he wishes A. to buy the land and let him have it; whereupon it is agreed that A. will buy the land as cheap as he can, and that B. will pay him 900 dollars for it. A. makes the purchase at the price of 750 dollars, and the land is conveyed to B. who gives his notes to A. for the 900 dollars. Held, the transaction between A. and B. is free from objection on the ground of usury.</p> <p>Land sold being erroneously described in the conveyance executed by vendor, mistake corrected on bill in equity filed by vendee.</p> <p>On dismissing a bill filed by the heir and the executor of vendee, to have a title made for the land purchased, and meanwhile to injoin vendor from collecting the purchase money, decree for costs should not be against the plaintiffs jointly, nor against the . executor de bonis propriis.</p>

<p>On appeal by an administrator from a decree in favour of a creditor of decedent, this court declared, “that in the accounts of the administration of the appellant, a credit ought to have been allowed him for the proper debts of his testator paid by him, so as not to subject him to a devastavit, and that so much of the decree as denied him those credits was erroneoustherefore it reversed the decree, pro tanto. Of the debts of the testator which had been paid by the administrator, a large portion were simple contracts. Held, the claim of the appellee creditor of decedent was, by the decree aforesaid of this court, determined to be a debt by simple contract only; and therefore, as against such creditor, the administrator has a right to retain the amount of his own simple contract demand against the testator.</p> <p>The settlement of an administration account under an ex parte order of the court which granted administration, is prima facie evidence in favour of the administrator against creditors of decedent.</p>

In October 1817, a bill was exhibited in the late superiour court of chancery for the Richmond district, by-Lawson Burfoot, “ one of the freeholders and housekeepers within the Manchester parish in the county of Chesterfield, who sues as well for himself as for and on behalf of the other freeholders and housekeepers within the said parish,” against Branch Cheatham and Peter F. Edwards administrators with the will annexed of Matthew Cheatham deceased.

<p>Under the 66th section of the act regulating criminal proceedings against free persons, 1 Rev. Code, ch. 169. the prosecutor’s insolvency or inability to pay costs is, ordinarily, good cause for ruling him to find security for such payment; but if, in the opinion of the court, public justice requires that the prosecution should proceed, it may refuse to dismiss the indictment, though the prosecutor he insolvent, and security for costs be not given.</p> <p>An indictment will not be dismissed, though the prosecutor be insolvent, if the court would ex officio have directed a prosecution to be instituted.</p>

<p>In the circuit superiour court of law and chancery for Amherst county, at September term 1834, an indictment was found against the defendant, in the following words: “ Amherst county, superiour court of law and chancery, to wit: The grand jurors impannelled and sworn at the September term of the said court in the year of our lord 1834, upon their oath present, that William M. Lambert, late of the county of Amherst, labourer, with force and arms, in the county aforesaid and within the jurisdiction of the said court, on the first day of September in the year of our lord 1834, wilfully and maliciously, and by previous agreement with a certain William M. Davis, did fight with him the said Davis a duel with pistols, said weapons with he which did fight as aforesaid, being such as the probable consequence from which might be the death of the said Lambert or of the said Davis, which said duel, fought with the weapons aforesaid, and at the time and place aforesaid, was an evil example to others, and form of the statute in such case made and provided, and against the peace and dignity of the commonwealth.”</p> <p>The defendant moved the court to quash the indictment, for the following among other reasons apparent on the face thereof: 1. Because the indictment does not correctly describe the court by its usual denomination, and consequently it does not sufficiently appear from the said indictment itself, that it was found by a grand jury impannelled in this court. 2. Because it is not charged in the said indictment, that the pistols mentioned therein were loaded. But “it appearing from the records of the court, that the said grand jury was impannelled and sworn for the said circuit court, and that the said indictment was regularly and legally found by them, and that the same was duly entered of record,” the court overruled the motion to quash. The defendant then filed a general demurrer to the indictment, and the attorney for the commonwealth joined therein : whereupon the court, with the assent of the defendant, adjourned to the general court the following questions : 1. Were the defects alleged, or any others apparent upon the face of the indictment, sufficient to quash the indictment ? 2. If not sufficient to quash, were the defects alleged or appearing, fatal on demurrer ? 3. What judgment should be rendered on said demurrer?</p>

Petition for writ of error to a judgment of the circuit superiour court of Montgomery county, rendered, against the petitioner upon an indictment for unlawful gaming.

<p>In any criminal case, whether capital or other, the court has power, for good cause, to discharge the jury, and put the accused upon his trial before a new jury.</p> <p>Such power held to have been properly exercised in a capital case, where the jury had been kept together for nine days without agreeing on a verdict, and the health of one of the jurors was suffering from confinement, while the personal attentions of another juror were required by the situation of his wife.</p>

The defendant Thomas J. Coe was indicted in the circuit superiour court of law and chancery for Wood county, for selling ardent spirits by retail, “ to be drunk at the place where sold,” without having a license therefor.

<p>Writ of error to a judgment of the circuit superiour court of law and chancery for Cabell county, rendered against the plaintiff in error at April term 1838, upon an indictment for stealing an iron gray marc of the value of 60 dollars, the properly of Lewis Bench. The accused being found guilty by the jury, was sentenced to imprisonment for five years in the penitentiary.</p> <p>The iudictment was found at September term 1837 ; and at that term the prisoner was led to the bar in custody, was arraigned, and pleaded not guilty. Whereupon, on his motion, the cause was continued till the next term.</p> <p>The record then states, that at a circuit court continued and held for Cabell county on friday the 27th of April 1838, “ came as well the attorney for the'com- • • monwealth, as the prisoner by his attorney, and thereupon came a jury,” &c. who, having heard the testimony and arguments of counsel, retired to consider of their verdict, and not agreeing on that day, were adjourned until the next, when they again appeared in court and rendered their verdict; “ whereupon the prisoner was remanded to jail.”</p> <p>When brought into court, on a subsequent day of the term, to receive his sentence, the prisoner moved the court to grant him a new trial, on the ground that the verdict was contrary to the evidence; which motion .being overruled, he excepted, and set out in his bill of exceptions all the material facts and circumstances proved on the trial. But the cause was decided in this court without reference to the evidence.</p> <p>In his petition to the general court, the prisoner assigned for error the refusal of the circuit court to grant a new trial; insisting that the whole evidence only shewed him to have been guilty of a fraud, and did not warrant a conviction of felony. For this “ and other errors apparent on the face of the record,” he prayed a writ of error; which was awarded.</p>

<p>Writ of error to a judgment of the circuit superiour court of law and chancery for Cabell county, rendered against the plaintiff in error at April term 1838, upon an indictment for counterfeiting and passing base coin.</p> <p>The indictment contained three counts. The first stated, “ that James Kirie, on the 10th of March 1838, at the county of Cabell, feloniously did pass to one Aly Williams a certain counterfeit, forged and base coin, of the likeness and similitude of the mexican coin and money called a dollar, current within the commonwealth of Virginia, as and for a dollar, with intention to injure and defraud the said Aly Williams, he the said James Kirie, at the time he so as aforesaid passed the said base coin, well knowing the same to be false, forged and counterfeited, contrary to the form of the statute &c.”—• The second count charged a passing and offering to pass to Aly Williams, with intent to injure and defraud the persons inhabiting the commonwealth of Virginia.— The third count charged the said Kirie with forging and counterfeiting two base coins of the likeness and similitude of the mexican dollar, with intent to injure and defraud the persons inhabiting the commonwealth of Virginia.</p> <p>The prisoner moved to quash each count m the indictment ; which motion was overruled. He then pleaded not guilty, and the jury impannelled for his trial rendered a verdict in these words : M We the jury find the prisoner, James Kirie, guilty of the felony charged in the two first counts in the indictment, which passing and offering to pass was committed on the first day of March 1838; and we do ascertain the period of his confinement in the public jail and penitentiary house to be ten years, if from the law that is the least period prescribed; but if five years be the minimum, then we ascertain the period of his confinement in the public jail and penitentiary house to be five years.” The verdict took no notice of the third count.</p> <p>On the trial the prisoner filed two bills of exceptions. The first bill set forth, that at the trial the attorney for the commonwealth offered to give evidence and proof that the prisoner, at his residence in Cabell county, had passed to a certain Aly Williams a counterfeit dollar of the likeness and similitude of a mexican dollar, current in this commonwealth, knowing the same to be forged and counterfeited; but without producing the coin so alleged to have been passed, and for passing which the prisoner was then on trial. That it bad also appeared in evidence that the said Aly Williams resided in Kentucky at the time of the trial, and that a subpoena had been issued for him, returnable to that term of the court, which subpoena had been returned not found. Whereupon the prisoner objected to the admissibility of any evidence going to prove the passing of such counterfeit dollar as aforesaid, or that the same was forgéd and counterfeit, unless the attorney for the commonwealth first produced in court the same coin so alleged to be forged and counterfeit, and to have been passed as aforesaid. This objection was overruled, i . , , . , and the attorney ior the commonwealth permitted to give evidence of the passing aforesaid, and that the dollar so passed was forged and counterfeit, and passed by the prisoner with full knowledge thereof; without the production of the said forged and counterfeit dollar, and without any other preliminary proof than as aforesaid. To which opinion of the court the prisoner excepted.</p> <p>The second bill of exceptions was taken to an opinion of the court refusing a new trial, which was moved for by the prisoner, on the ground that the evidence did not warrant the verdict. This bill set out all the facts proved in the cause. It is unnecessary to state them, since, by the unanimous opinion of the general court, they fully sustained the conviction.</p> <p>The circuit court rendered judgment that Kirk be imprisoned in the penitentiary for ten years, “ the period by the jurors in their verdict ascertained.”</p>

<p>Where the confession of a prisoner is given in evidence, the whole must go to the jury; but the whole is not necessarily to be taken as true; on the contrary, if, from opposing evidence or the confession itself, facts appear which are sufficient to satisfy a rational mind that a part is not true, it ought to be disregarded.</p> <p>Case in which the exculpatory part of a prisoner’s confession was properly discredited, by the jury.</p>

Petition for writ of error to a judgment of the circuit superiour court of law and chancery for Chesterfield county. The petitioner, being indicted at October term 1838 for larceny, was tried, convicted, and sentenced to imprisonment for two years in the penitentiary.

Upon an indictment against Young in the circuit superiour court of law and chancery for Dimpiddie county, that court adjourned to the general court, for novelty and difficulty, two questions arising in the cause ; but the record did not state that the questions were ad- • journed with the consent of the defendant.

<p>Adjourned case from the circuit superiour court of law and chancery for Smyth county.</p> <p>At October term 1838, the defendant, David Wilson, was indicted for unlawful gaming at cards, on the 15th of September preceding, “ at the racefield at the seven mile ford in the said county of Smyth, the said racefield being then and there a public place,” contrary to the act of assembly &c. At May term 1839, he was tried, and the jury found him guilty of the offence charged : whereupon he moved the court to set aside the verdict and grant him a new trial; but the court, having difficulty as to its judgment to be rendered on the said motion, adjourned to the general court, with the consent of the defendant, the following statement and questions :</p> <p>It was proved on the trial, that the ground described in the indictment as a racefield was a slip of land, lying between the middle fork of Holston river on the south, and the line of fence of a cultivated field on the north, the breadth from the river to the fence being 40 or 50 yards, and the length about half a mile. This space was entirely clear, except that a few trees were left near the water’s edge for the preservation of the bank; and it was open at each end, and communicated with a public road running on the north side of the cultivated field. That field formerly extended to the river bank; but many years ago, the southern fence was removed back from the river, so as to leave the space in question open for a public highway; while the road on the north side of the field was also left open, and used. The road along the river was used for years, but was finally discontinued; and it being a suitable place for quarter racing, quarter paths wmre made thereon by tacit permission of the owner, and used occasionally for such rdcing, though not frequently. No company, club, or other person had the right to race there without the owner’s permission. The defendant played cards in the open space between the racepaths and the river, at a time when two or more horses were exercised in training on the track, and several persons had assembled to see the training. Bets were made on the running of the horses upon that occasion, though the race, for 'which the said training was preparatory, took place some days afterwards. These were all the material facts proved ; and the court, defining a field to be cleared land, for cultivation or other purposes, whether enclosed or not, left it to the jury to determine whether the ground above described was, on the day of the playing, a racefield or not. The jury found that it was a racefield.—The questions submitted were, 1. Is the ground above described a racefield, within the meaning of the act of assembly prohibiting unlawful gaming ? or is it a field in any sense of the word ? 2. What disposi^011 ought the court to make of the motion for a new trial? 3. Ought the,court to render judgment on the verdict aforesaid ?</p>

Petition for writ of error to a judgment of the circuit superiour court of law and chancery for the town of Petersburg. At June term 1839, the petitioner, Peter Moran, was indicted for the murder of Daniel Jones Beasley;. and the jury having found him guilty of manslaughter, and ascertained the term of his imprisonment in the penitentiary to be five years, the court pronounced sentence accordingly.

<p>Though the assignment of tithables to work on a public road has been made, not by the county court itself, but by one of the justices, designated for that purpose by the court, and has not been returned to the court or ratified by it, yet if the tithables so assigned do not refuse to work on the road, the surveyor is indictable for failing to keep the same in repair.</p>

Isham Maile was indicted in the circuit superiour court of Chesterfield, for the murder of Archer Maile.

<p>Adjourned case from the circuit superiour court of Lewis county.</p>

<p>An information was filed against Jerome B. Collins in the circuit superiour court of Orange county, at April term 1832, for selling by retail goods, wares and merchandise of foreign and domestic growth and manufacture, without a lawful license for so doing. The information was filed upon a presentment made by the grand jury at the previous term, “ upon the evidence of J. Cave, commissioner of the revenue, sworn in open court to give evidence before the grand jury.” Issue being joined on the plea of not guilty, the cause was continued in court until September term 1836; when a jury being impannelled to try the issue, returned a verdict finding the defendant guilty. He thereupon moved the court to arrest the judgment, “ because the remedy given by the act of assembly is a remedy by motion, and no information or indictment will lie against the defendant in this case; the offence with which he is charged being created by statute, and not being an offence at common law, and there being no provision in the law for its prosecution by such mode as has been pursued here.” The circuit court, with the consent of the defendant, adjourned to this court the questions, 1. What judgment ought to be rendered upon the errors filed in arrest of judgment ? 2. What judgment ought to be rendered upon the verdict ?</p>

<p>Writ of error to a judgment of the circuit superiour court of law and chancery for Wythe county.</p> <p>The record of the case (as certified to this court) commences by stating that on the 10th day of April 1838, the grand jury appeared in court according to their adjournment, were sent out of court, and after some time returned, and presented “an indictment against John Earhart for setting fire to the woods and burning the same, a true bill.” The indictment was as follows: “ Virginia, Wythe county to wit: The grand jurors impannelled in the circuit superiour court of law and chancery held for said county the 9th day of April 1838, upon their oath present that John Earhart late of the county aforesaid, on the 19th day of April 1837, at the county aforesaid and within the jurisdiction of the circuit court aforesaid, did unlawfully, wilfully and maliciously set fire to the woods near the plantation of Alfred C. Moore, which woods and plantation are in the county aforesaid and within the jurisdiction of the circuit court aforesaid, which fire so set to said woods did kurn sa^ woods and a fence belonging to the said Alfred C. Moore; which act of the said John Earhart in setting fire to the said woods in manner and form aforesaid, and burning said woods, is against the form of the act of assembly” &c. Neither the fact that the grand jury was sworn, nor the adjournment referred to in the entry of the 10th April, is anywhere expressly stated in the record.</p> <p>The defendant pleaded not guilty to the indictment; and at September term 1838, a jury being impannelled for the trial of the case, returned a verdict finding him guilty, and assessing his fine at 80 dollars. He moved the court to set aside the verdict and grant him a new trial; which motion was overruled. He then moved to arrest the judgment, “for the following reasons : 1. It does not appear that a grand jury ever found an indictment against him for unlawfully, wilfully and maliciously setting fire to the woods. 2. It does not appear by the record, that a grand jury ever found an indictment against him for unlawfully, wilfully and maliciously setting fire to the woods. 3. It does not appear by the record, that the defendant was ever indicted for the offence for which he has been tried and convicted, neither does it appear that he was indicted for any offence against the penal laws of the commonwealth.” The court overruled this motion also, and gave judgment against the defendant, for the fine assessed by the jury, and the costs of prosecution, and that he be imprisoned in the jail of the county for the term of two months.</p> <p>To the opinion of the court overruling his motion for a new trial, the defendant excepted, and set forth in his bill of exceptions all the facts proved before the jury. The conclusions drawn by the jury and the circuit court from the evidence (which was wholly circumstantial) wrnre sustained, as will be seen, by the opinion of this court: and it is deemed unnecessary to detail the contents of the bill of exceptions, farther than may suffice to explain the other points decided in the cause.</p> <p>The bill of exceptions states that “ on the-day of- 1837,” the woods were discovered to be on fire near Alfred C. Moore’s plantation : the time is nowhere, in the statement of the evidence, fixed to a particular day, or even month. Immediately upon the discovery of the fire, and near the spot where it was supposed to have been communicated to the woods, a fresh track of human feet was observed. This track, it was found, entered a wagon road at the defendant’s fence, within 50 or 60 yards of his dwelling house, and proceeded along that road and an old path, to the point at which the fire was supposed to have been communicated, and thence, along the same path and wagon road, back to the defendant’s fence, near the place from which the track leading in the direction of the fire had been traced. After giving, at great length, the evidence of Moore and several other witnesses, the bill of exceptions proceeds in the following terms :</p> <p>41 Another witness stated that the defendant was at his the witness’s bouse, and they had a conversation about the burning of the woods. The witness had also seen the track before spoken of. He asked the defendant to clear himself about the track. The defendant, at the time, was sitting in such a position that the witness could see the soles of his shoes. The witness said to the defendant, ‘ Earhart, I will swear point blank that these shoes made those tracks meaning the shoes then on the defendant’s feet. The defendant then said, that he had seen smoke rising from the place where the fire broke out, and went up to see where it was; that he had gone to the fire, and returned from it, along the wagon road and path spoken of; that he had returned with an intention of getting his horse and going to Moore’s house, to inform him of the fire; that immediately after his return from the fire, and before he had . caught his horse, Moore passed along his lane.” (In the testimony given by Moore, he had stated, that immediately after his arrival at the-fire, he left it for the purpose of obtaining the aid of his neighbours, and passed through the defendant’s lane near his house; that the defendant was in a passage or porch of his house, and called aloud to Moore, two or three times, “ Where are you going in such a hurry ?” to which Moore made no answer, although he distinctly heard him.)</p> <p>“ The defendant offered to prove by a witness, that he had, the day after the fire took place, and at a different time from that of the conversation aforesaid, told him the same thing that was proved by the last named witness: not for the purpose of proving the facts disclosed by the defendant, but to shew that the defendant had been consistent in all he had said in relation to the matter. The court refused to permit the evidence to go to the jury: to which opinion no exception was taken. '</p> <p>“ The defendant asked a new trial, for the following reasons: 1. The verdict is not sustained by the evidence. 2. The court ought not to have rejected the evidence offered by the defendant as aforesaid. 3. If the evidence was not proper for the purpose for which it was offered, yet as the counsel for the commonwealth had contended before the jury, that the first time the defendant had acknowledged that he was at the fire, and that he had gone and returned along the wagon road and path before mentioned, was after he had been informed by a witness that he would swear that the tracks heretofore spoken of were made by the defendant’s shoes,—and that the acknowledgment of the defendant was a shift to destroy the force of the supposed evidence; the rejected evidence was proper, for the purpose of rebutting and destroying the inference which might be drawn from the supposed fact, by shewing that the defendant had said the same thing before, and under different circumstances.”</p> <p>At December term 18-38, the defendant applied by petition to this court for a writ of error to the judgment ; which was awarded.</p>

<p>It is the right and the duty of a judge sitting in a criminal trial, to instruct the jury as to the law, if he think it proper to do so; and no law prescribes any particular time at which the instruction shall be given.</p> <p>On a trial for murder, the court instructs the jury, that though they “should believe the prisoner committed the homicide under the influence of immediate intoxication, or the effects of a previous habit of intoxication upon his temper, yet if the intoxication or the effects were not such, or to such a degree, as wholly to negative the legal inference of malice, implied by law from, the character and circumstances of the act, and absence of or slightness of the provocation,” they should find him guilty of murder in the second degree: Held, an instruction upon the sufficiency and weight of evidence, and error for which judgment against the prisoner must be reversed.</p>

In the circuit superiour court of law and chancery for the comity of Henrico and city of Richmond, at the term held in October 1839 for the trial of criminal causes, the grand jury presented “an indictment against William H. Rage for forgery, a true bill.” The indictment thus described as an indictment for forgery contained six counts.