Volume 4 — Virginia Reports

<p>Judges of First Court of Appeais -Qualification -Necessary for Production of Commissions and Presence of Executive. The first court oí appeals was a legislative court only; and it was not necessary, that the judges should produce any commissions, or the executive be present, when they qualifled; for the act constituting the court, had not directed commissions to be issued, or the oaths to be taken in the presence of the executive; and the judges, by construction of law, knew each other to be judges of the courts to which they respectively belonged.</p> <p>Same — Mode of Qualifying. Mode of qualifying the judges of the first court of appeals.</p>

In 1762, Lord Fairfax, the proprietor of the Northern Neck of Virginia, laid off the town of Romney, in the county of Hampshire ; and in the same year an act was passed by the House of Burgesses of Virginia, establishing the town. The plan pursued by Lord Fairfax, in the sale of the lots, was to reserve an annual ground rent of five shillings sterling bn each.

<p>FRANCIS MOODT applied to the County Court of Meekknburgh for leave to erect a water grist-mill oh Butcher's creek, being proprietor of the land on both sides of the stream at the place proposed for the abutment. He gave a written notice, of his intention to move for a writ of ad quod damnum, to Thomas Coleman, u acting trustee and K executor of Thomas Rowlett, deceased,” stating that he the said Coleman had lands above the said place, on the said stream, vested in him in trust for certain purposes designated by the last will and testament of his testator, and that the object of the intended application was to ascertain what damages might be occasioned to him as acting trusr . , , . . . ~ te;e aforesaid, or to other persons, by erecting a dam oí the height of 15 feet 2 inches. In the petition and order hor the writ of ad quod damnum, as stated in the record, nothing was said of the height of the dam ; but the writ ° ° issued by the cleric directed the inquiry of damages to be made, upon the supposition that the height of the clam was to he as above mentioned. A notice was also given to Coleman of the time and place of meeting of the Jury, who found that, by a dam 15 feet and two inches high, no J 0 mansion-house, offices, curtilage or orchard would be overflowed ; that the passage of fish and ordinary navigation would not be obstructed ; and that, in their opinion, the health of the neighbours would not be annoyed by the stagnation of the waters ; that three acres of-land belong-w ° ing to the estate of Thomas Sow It tt, deceased, would be overflowed, together with all other damages to the value of fi iy dollars ; and that the estate of no other person would sustain any damage. Their inquisition so made was first signed and sealed by John G. Baptist, (the deputy-sheriff who attended them,) in this manner, “ Witness John G. Baptist, (seal,)” and then by the twelve jurors, and tog -ther with the w rit w as returned by the sheriff to die succeeding Court ; but the signature of the high sheriff’or his deputy to the return on the writ was not inserted in the record ; neither was his title of deputy-sheriff added to the signature of John G. Baptist. On the return of the inquest, the Court ordered a summons to be issued to Thomas Coleman, “sole acting executor and trustee oí Thomas Hewlett, deceased,” to shew' cause if any he could, why leave should not be granted to Francis Moody to build his mill agreeable to the inquisition and Jury’s report there» upon. This summons was returned, executed by' John (l. Baptist, deputy of William G. Baptist, sheriff. Thomas Coleman accordingly appeared, and endeavoured to shew cause ; but, after hearing the parties by their attorneys, and the evidence on both sides, the Court granted Moody leave to erect the mill and dam, to the height of 15 feet and two inches. No order was made directing the payment of the fifty dollars to Coleman, but the record stated that Moody produced the money at the clerk’s table, and called on Coleman's attorney to receive it, who refused ; and no person entitled thereto appearing to receive it, it was ordered that the clerk should receive and keep it for the benefit of “ the proprietors or persons damaged agreea41 ble to the Inquest.”</p> <p>On an appeal to the District Court of Brunswick, the order of the County Court was affirmed; whereupon Coleman again appealed to the Court of Appeals.</p> <p>A number of witnesses were examined before this Court, whose testimony (under the rule now established) was committed to writing ; but to mention even its substance, in our report of the case, would be tedious and useless. Suffice it to say that the weight of evidence was in favour of establishing the mill, as greatly conducive to the convenience of the neighbourhood ; and the witnesses generally were of opinion, that the quantum of damages had ■ been rather overrated by the Jury, for the purpose of satisfying Coleman, and putting an end to further controversy. One circumstance, however, must be noted. It appeared in evidence that the Jury met at Moody’s house ; that the weather being very warm, and some of them having travelled a considerable distance, he set out some spirits, took a drink himself, and said he was disagreeably situated because he could not offer them any; that Coleman, who was present, said he had no objection to their taking some refreshment, and so saying, set the example himself; that thereupon most of the Jury, took a little spirits and water ; that when they had finished viewing the mill-seat and grounds on the creek, they returned to the house, at a late hour in the evening, after having agreed on their report ; and while the deputy-sheriff and surveyor who at-ended them were writing the inquisition, they again drank moderately and ate at Moody’s expense'; that Coleman made no objection to their doing so, partook of the same refreshments, and stayed with them until they had all signed the inquisition; that some of the jurors might, perhaps, have felt what they drank, but none of them appeared intoxicated ; that one of them made a slight objection to part of the inquisition, before it was finished, but after-wards waived the objection, and approved of it as written.</p> <p>On the p; v t of the appellee, for the purpose of proving that Coleman, as proprietor or tenant of the land, was the person who ought to have been summoned, the will of Thomas Rowlett, dated the 29th of December, 1805, and recorded the 13ih of January, 1806, was introduced and read ; (though not inserted in the record of the proceedings in this cause in either of the Courts below ;) but the Judges gave no opinion relative to its admissibility as evidence, From that document it appeared, that after certain ■viKiciiic and pecuniarv legacies, the testator directed all the 1 . , , . ' , , , , , residue of his estate, both real and personal, to oe cept together for two years after his death, and then to lx: sold by his executors, and “ after paying his debts, if any should be due, and the legacies aforesaid, that the whole “ of Ids estate arising from the said sales, and the profits “ of his estate until the said sales, be divided into three “ equal parís,” &c. 'Thomas Coleman alone qualified as executor. The summons was issued August 12th, and served September 14th, 1807; and the County Court acted finally on the subject in December following, before the two years in which the estate was directed to be kept together had expired. Parol evidence ivas also introduced (without any decision as to its being admissible) to shew that Coleman exercised acts of ownership, or such as evinced possession of the land, during those two years, by employing overseers and receiving the profits ; in the course of which investigation it appeared, that shortly after the decision, in the County Court, he sold the land at public sale, in obedience to the directions of the will, and became himself the purchaser.</p> <p>[Among other evidence the appellant offered to read the deposition- of William W. Green, taken by virtue of a commission issued from this Court on an affidavit filed, that the witness was, through infirmity, unable to attend. It appeared that Coleman had himself accompanied the person employed to give notice of the time and place, to the house of Moody, whose wife informed them that he was then in North-Car olina, and would not return until a day or two after that appointed for taking the deposition; that on their way, they had been told by others, that Moody was gone to North-Car olina ; that nevertheless, the notice was given to Mrs. Moody on a Saturday, and the deposition taken on the Wednesday following, being the 22d day of March ; that Moody returned home a day or two after-wards ; that Coleman, meeting with him at a public house, where the witness and two magistrates happened to be present, told him he might ask the witness any questions he thought proper, before those magistrates, and the answers given might be read as evidence in the cause; but did not shew him the deposition, without seeing which, it was contended on his part, he could not have known what Questions to ask ; that indeed, the paper itself had, previously to this occurrence, been delivered to the Clerk of the Court of Appeals. It was also proved that Bloody was at Blecklenbitrgh Court (on his way to North-Carolina) the Thursday before that on which the deposition was taken, and that Coleman was there also. George K. Taylor, counsel for the appellant, endeavoured to excuse his precipitation in taking this deposition before Moody’s return, by stating that Coleman at that time expected the cause to be tried before the end of the BTarch term, and therefore thought it necessary to be expeditious in preparing for trial; though during that term, by consent of the counsel on both sides, but without his knowledge until after the deposition was taken, the 2d of May was appointed for the hearing. Mr. Taylor also solicited the Court (should they be of opinion that the notice was insufficient) to renew the commission, and grant a farther day in the term. But the Court unanimously declared- the notice not to have been reasonable, and rejecting the deposition, moreover refused to delay the hearing.]</p>

Debt on a bond for 200 dollars, brought by Chesnut against Bowyer in the county court of Bath. Bowyer craved oyer of the bond, and pleaded non est factum. It appeared from the bond (set out on oyer) that ■one Sophia Burk was the subscribing witness to the execution thereof.

<p>Clerk of Court -Failure to Perform Duty — Rule to Show Cause —If the clerk of this court neglects to attend his duty in court; or the clerk of an inferior court to furnish the copy of the record of the inferior court to enable the applicant to prosecute his appeal to this court, this court will, after a rule to shew cause, animadvert upon his conduct.</p>

By deed executed by J. Dickerson, T. Amis and H. Conn of the first part, T. Duck of the second part, and J. & R. Withers of the third part—reciting, that Dickerson Amis, merchants and partners, were bound to indemnify H. Conn from all demands against him as a partner of a former house of Dickerson fy Conn, and as security for the due performance of that undertaking, Amis had mortgaged certain real estate to Conn; that Amis had mortgaged the same estate to Buck, to indemnify…

This case came before the court‡ by adjournment from the general court; and was as follows: John Catón, Joshua Hopkins and John Lamb were condemned for treason, by the general court, under the act of assembly concerning that offence, passed in 1776, which taken from the executive, the power of granting pardon in such cases.* The house of delegates by resolution of the 18th of June, 1782, granted them a pardon, and sent it to the senate for concurrence; which they refused.

A decree de bonis testatoris having been made by the Court below in favour of M’Cauley’s adm’r against Griffin's ex’or, the executor obtained an appeal to this Court, from the decree, and was not required to give security upon the appeal. He had, too, been permitted to qualify as executor without giving security, Whilst the appeal was pending in this Court, M’Cauley's adm’r moved the Court to compel the executor to give security on the appeal.

Writ of right brought by Christian Snidoio against Abraham Williams, in the circuit court of Giles, for 196 acres of land. The pleadings were in the form prescribed by the statute, 1 Rev. Code, ch. 118. p. 463, 4. and the mise joined on the mere right.

This was a writ of right brought in the Circuit Court of iFauquier, by William F. Purcell and Mary his wife, and William B., Margaret and Julia Harrison against Archibald Wilson. The writ was issued on the 14th of June 1837, to recover an undivided fifth part of five hundred acres of land in the county of Fauquier.

By the first section of the act of assembly, for adjusting and settling the titles of claimers to unpatented lands, passed at the May session 1779, it is provided, That surveys of waste lands upon the western waters before the first of January 1778, and upon the eastern waters before the end of that assembly, “upon any order of council,† or entry in the '“'council books, and made during: the time in which it should appear,” either from the original, or any subsequent order,…

<p>Where reciprocal covenants have been contracted, and one party has partially performed the covenants on his part, and has no other remedy for compensation therefor but by action on the covenant, there, whatever be the form of the contract, and even though the covenants are expressly dependent covenants in form, and though they are pleaded as dependent covenants, yet they shall be held independent covenants, and the plaintiff shall recover compensation for his part performance.</p>

ON the 20th day of October, 1800, John Ambler and Catharine his wife, late the wife of John H, Norton, deceased, sued out of the clerk’s office of the Winchester District Court, a writ of dower against George F. Norton.

So much of the case as is necessary to present the question decided is as follows : Philip L. Grymes died in 1805, and by his will directed, that all his just debts and those of his deceased son should be paid.

Ejectment, in the circuit court of Goochland, by W. B. Gilliam against Anna Moore, for a parcel of land described in the declaration as being “ so much of a larger parcel of land lying part in Hanover and part in Goochland counties, containing by estimation 560 acres, more or less, and adjoining the lands of E. L., S. M., W. W. and others, as lies in the county of Goochland.” Upon the trial, the jury found a special verdict, stating, in substance, the following case: W. B.…

<p>Court of Appeals —Adjusting Titles to Unpatented Lands — Jurisdiction to !iraní: Writ of Error.† — The court of appeals had. not jurisdiction to award a writ of error to a j udgment of the general court, under the act for adjusting the titles of claimers to unpatented lands :</p> <p>Same — Same—Same.—And, therefore, where snch a writ had been improvidently granted, it was iiuashed.</p> <p>Western Waters — Statute of 1779. — The western waters described, by the act of assembly passed in May 1770.</p>

Fowler was convicted of felony in the general court; and obtained a pardon from' the governour, of which the following is an extract, viz: “Whereas John Fowler, late of the parish of Fredericksville, in the county of Albe-marle, labourer, was, at a session *of the general court holden on the 27th day of April in the year of our Ford, one thousand seven hundred and eighty-five, attainted of felony, and he appears to be a proper object of mercy: Now know ye, that I have…

In an action of debt brought by R. 8f I. Moon against Ware, in the circuit court of Fluvanna, Pasteur entered into recognizance of special bail for the defendant Ware; and judgement having been recovered against Ware, a scire facias was sued out against Pasteur, the bail, upon the recognizance. The scire facias was executed on Pasteur, but he died soon afterwards, and the proceeding was revived by scire facias against Shores his administrator.

This was an action of assumpsit, in the circuit court of Norfolk, brought by Brown Sy Sons, indorsees of a bill of exchange, against Ferguson, the drawer.* There was a great deal of special pleading, on both sides, but the case having been tried at last on the general issue, the jury found a special verdict; and the question was, Whether, upon the case found in the verdict, and upon the merits, the plaintiffs were entitled, on any ground, to recover ? 1.

On the 8th of May, 1669, king Charles II by letters patent reciting 1. Held: deemed and taken, to be valid and effectual; and the adventurers and planters to whom the same were granted, their heirs and assigns, shall forever hereafter peaceably and quietly have, hold and enjoy, the said granted premises, respectively, according to such granted estates, under the rents and services in the said grants reserved,…

<p>1. Infant children live with their mother on her dower estate, and are supported by her, for which no charge is made by her. But during this time the nett proceeds of her estate are not equal to her expenses; and the guardian of the children pays these expenses to a largo amount, which she has not repaid him. Upon a bill by one of these children, after coming of age, against his said guardian. Held : That as it is impossible to ascertain how much of the advances of the guardian were applied to the support of the ward, a proper and reasonable allowance should be made for the support of the ward, annually, and credited to the guardian.</p> <p>2. Two months allowed guardian for collecting and investing the annual proceeds of the ward’s estate.</p> <p>3. In stating the guardian’s account, it should be closed at the period when the guardianship terminated; and from that time the account should be adjusted on the ordinary principle, as between debtor and creditor.</p> <p>4. It is error to aggregate the principal and interest due on the guardian’s account, and give a decree for the whole sum, with interest thereon.</p>

Dioclesian Reynolds obtained from the judge of the Circuit Court of Alleghany county, an injunction to a judgment recovered against himself and William Byer, by Orlando Griffith, who sued for the benefit of Bell & Dickinson.

These were first, an action of trespass quare clausum fregit by Davis v. Smith, and second, an ejectment by Smith v. Davis, in the Circuit Court of Botetourt county; and the only question in dispute was which was the true division line between their respective tracts of land. Both tracts had been parcel of a larger tract owned by James M’Crery in his lifetime, and which was divided by commissioners among his heirs, after his death.

<p>P executed his bond to C for 500 dollars, payable in three years. The bond recites that it is not to bear interest for the three years, P having that day paid C 90 dollars, the interest thereon for three years, in advance. In an action on the bond by C against P, P pleads usury; and relies upon the recital in the bond to sustain his plea. Held : C may shew that the interest was paid, not by money, but in land at an agreed price per acre; and that such price was not the estimated value of the land in cash, but its estimated value in reference to the annual interest for three years, as the same should accrue upon the debt of 500 dollars. And, moreover, to corroborate such evidence, and repel the idea of a corrupt intent to take usurious interest, he may prove that the actual value of the land at the time of the contract was less than the agreed price, whether in cash, or on instalments of one, two and three years.</p>

Debt by Drummond against Newcomb, in the county court of Gloucester, upon a judgement of the same court for 100 dollars, previously recovered by the former against the latter, in an action of trespass, assault and battery. The declaration excused the production of the record of the action and judgement, by stating that since the judgement was rendered, the clerk’s office had been consumed by fire, and this record among other papers wholly destroyed.

AT a General Court holden on the 26th day of April, 1786, the Commonwealth obtained a judgment against William Nimmo, Sheriff of Princess Anne County, for 208/. 10s. Ad. for the balance of the one per cent, tax on * land, collected by him for the year 1784, and 3\L 3 s. 6 1-2 d. , for damages thereon, according to law, amounting in the J whole to 239/. 15s. 10 1-2d. with interest thereon from the lOdr day of Nov. 1784, until payment, and costs.

This was an action brought by Unis against Charlton, for the purpose of recovering her freedom. The plaintiff claimed to be the daughter of a negro woman called Flora, and that Flora was a free woman at the time of the plaintiff’s birth, in Connecticut or Massachuselts, and had been abducted from thence and sold in Virginia as a slave.

<p>In assumpsit, plaintiff declares, that defendant contracted to locate a treasury warrant for plaintiff on waste and unappropriated lands, and to cause the same to be surveyed and patented, and alleges a breach, that defendant did not cause lands by him located on the warrant, to be surveyed and patented; but at the trial, plaintiff proves a contract whereby defendant did not undertake to cause the lands to be patented as well as located and surveyed: on demurrer to evidence, Held, the evidence does not prove the contract laid in the declaration, and plaintiff is not entitled to recover.</p> <p>Contract to locate a treasury warrant on lands in Kentucky, is made in August 1782; and it appeared, the breach, if any, must have occurred before the erection of Kentucky into a separate state: Held, the act of limitations of Virginia began to run from the time of the breach, and was, therefore, a bar to an action on the contract brought in 1816.</p>

In the year 1819 William Hill employed Thomas Baldwin to purchase for him a tract of land in the county of Grayson, which was then owned by Lewis Harlan of Maryland. Baldwin made the purchase in his own name; and took from Fiarían a bond with condition to make a title to the land when the purchase money was paid. On his return, it seems that he delivered this kond to Hill, who immediately took possession of the land, and lived upon it for a number of years.

Francis Browning, jr. made his will in 1835, and died in April 1836. When he made his will his wife was alive, and he had six children to whom he bequeathed all his estate. Afterwards, and before his death, another child was born ; and the wife and all the children survived him.

The corporation of the Borough of Norfolk, being the proprietor of a parcel of land on Town Point in that borough, had the same laid off in lots in 1792 j and by indenture, made in May in that year, leased two adjoining parcels thereof to Nicholas Booze, for a term of ninety-nine years, renewable forever, at a certain stipulated ground rent for each parcel respectively, payable yearly.

This is the sequel of the case of Pollard ’s heirs v. Lively, reported 2 Gratt. R. 216. On the trial of the cause in the Court below, the jury again found a verdict for the tenant, on which the Court entered up a judgment; and the demandants having taken three several bills of exception to opinions of the Court pronounced during the progress of the trial, applied to this Court for a supersedeas to the judgment, which was allowed.

M’Cluer’s adm’rs filed their bill in the Circuit Court of Botetourt against Peter Noffsinger, Joseph Rodgers and the administrator and heirs of Michael Spitler. The case made by the pleadings and proofs is as follows: fn 1824 John Adams recovered a judgment against Michael Spitler in the County Court of Botetourt for 50 dollars, with interest from the 20th of August 1821. To this judgment Spitler obtained an injunction, and M’Cluer was his surety in the injunction bond.

<p>THIS was an appeal from a judgment of tbe District-Court of Charlottesville.</p> <p>The appellee instituted an action of covenant against the appellant’s testator, on a written agreement under seal, bearing date the 6th of April, 1797, in which agreement, the defendant, by his attorney, in fact, acknowledged to have so^ to the plaintiff 500 acres of land,on Silver Creek in Maedison County, State of Kentucky, at a certain price per acre, 7. 1 r according to three several qualities of the land, to be esti- . . mated by two persons designated m the agreement; and further covenanted, “ that if the land or any part thereof “ should he, lost, the said Buster was to refund the money 41 without interest, according to the rates of the land lost “ and was to defend all suits at law that mi edit arise from “ J “ other claims. I here was no other description of the land in the written agreement; nor were there any further covenants on the part of the defendant. "I he plaintiff, in his declaration,recited the contract, and. averred, “ that, giving faith to the representations of the ■ r , , “• defendantA attorney, m fact, and the power made him “ by the defendant, he proceeded to pay him one hundred ^ pounds current money of Virginia, which the defendant ** actually received ; and the plaintiff avers that the dejt-nd44 ant had no land at all lying on Silver creek, in the Coun44 ty of Madison, State of Kentucky; and although the 44 defendant, by contract, was to refund all moneys paid by 44 him, proportionally to the loss sustained by the plaintiff, “ and although the defendant has been notified of the pre44 mises,he has refused to return, although often requested, 44 the defendant the money thus advanced by the plaintiff, “ for a consideration which has entirely failed.” Plea, 44 that the defendant had not broken the covenant,” and issue thereupon.</p> <p>At the trial, a number of depositions taken in the State of Kentucky, (the most important of which were taken after two juries had been sworn in the cause, who could not agree in their verdict,) were offered in evidence by the plaintiff. These depositions,besides containing much hearsay evidence, tended to explain the intention of the panics at the time of entering into the agreement, and to prove covenants on the part of the defendant, which were not inserted in the said agreement; particularly, it w as proved by the person who drew the instrument of writing, and after-wards attested it as a witness, that the defendant’s attorney agreed with the plaintiff, 44 that if he did not prove that 44 the spot of ground on which they then were, was the 44 spot of ground called for by his, Buster's entry, made by 44 a certain Benjamin Blackburn, he would refund to the 44 plaintiff the purchase-money. After which agreement, 44 the deponent drew an article between the parties,” fkc. Whereupon the defendant, by his, counsel, moved the Court 44 to exclude such parts of the depositions, in this 44 cause, from going in evidence to the Jury, as were at va~ 44 riance with the covenant, or went to explain the same.” But the motion was overruled, and the whole of the depositions suffered to go in evidence to the Jury. To this opinion of the Court, the defendant tendered a bill of exceptions, which was signed, sealed, and made a part of the record. Verdict for the plaintiff for 300 dollars damages, and judgment thereupon ; from which the defendant appealed to this Court.</p>

On a motion for a new trial, in this cause, made by Randolph, attorney general, the reason assigned for the application was, that one of the jurors was dissatisfied with the verdict and wished the matter to be reheard, as he had misunderstood the testimony, and its application to the law.

<p>This was an action of debt brought by Sterrett against Teaford in the Circuit Court of Augusta county, in 1839, upon the following note : We or either of us do promise to pay or cause to be paid unto John Sterrett, his heirs or assigns against the first day of October 1823, one hundred and twenty-five dollars Virginia currency ; it being for value received. Given under our hands this 9th day of October 1819.</p> <p>Signed,</p> <p>Henry Teaford,</p> <p>John Teaford,</p> <p>The declaration contained several counts. The first declared on the paper as a promissory note. The second declared on it as a writing obligatory. The others were the common counts intended to meet the plea of the statute of limitations, by shewing a subsequent promise to pay.</p> <p>The defendant John Teaford, who was the only party sued, pleaded nil dehel, and the statute of limitations; and at a subsequent time, he demurred to the secoud count of the declaration without craving oyer of the bond declared on ; though it was obviously the object of the demurrer to take advantage of the variance between the bond as described in the count and the paper relied on to sustain it. The Court sustained the demurrer, and thereupon the cause coming on for trial, the defendant demurred to the evidence, and the Court sustained this demurrer, and gave judgment against the plaintiff, who applied to this Court for a supersedeas, which was granted.</p>

<p>The defendant in a proceeding of unlawful detainer dies pending an appeal by the plaintiff below. The cause cannot be revived.</p>

This was a bill filed by Dickenson against Gray in the Circuit Court of Russell county, for the purpose of having an account of the proceeds of the sales of land held jointly by the plaintiff and defendant, and which had been sold by the latter. The defendant did not answer the bill; and it was therefore taken for confessed. And the accounts being referred to a commissioner, he returned his report on the 12th of September 1845, to which there was no exception.

This was a bill filed by Thomas L. Preston against ° . John Preston, to compel contribution to the satisfaction of a debt for which they were the sureties of William P. Floyd. The facts are as follows: In September 1841, James Rhea recovered a judgment against William P. Floyd, John B. Floyd, and John Preston, on a bond for 1000 dollars ; and in April 1842 he recovered a judgment on the same bond against Thomas L. Preston.

<p>Will — Foreign Probate.* — A will devising lands lying in Virginia, may be proved in this state, although it may have been declared void in any other of the United States.</p>

Ejectment, brought by George, William, and Ann Bram~ hie in the circuit court of JYorfollc, for a parcel of land in that county. Held: that the law was for the defendant, and gave him judgement; from which the lessors of the plaintiff appealed to this court.

THIS „was a controversy concerning the establishment ©f the nuncupative will of 'Travis Womack, deceased. John Marks sxiáPalsy \\is wife,and Polly Titmarsh were the legatees interested in establishing the will; and, at their instance, Thomas B. Bryant and Sally his wife were sum-v monod to Prince George County Court, September terra, , , . ... , , , .... J804, to shew cause, if any tney could, against its being admitted to record.

<p>Parol Gift of Slaves to Feme Sole — Validity—Statute*— Case at Bar. — A verbal gift of slaves to a feme sole, to whose husband upon her subsequent marriage, they were delivered, and by him kept till his death, four years after the marriage, is within the statutes for preventing fraudulent gifts of slaves.</p>

<p>Dower — Failure to Renounce Provision of Will in Prescribed Time — Effect.*—If the widow does not relinquish the will, within the prescribed period she is barred from dower in the undevised slaves.</p>

In 1828, Thompson Crutchfield of Botetourt, married Eliza, the daughter of James Taylor of Smyth county. Soon after the marriage, Taylor sent to Mr. Crutchfield a family of negroes, among whom was a boy, Isaac. These slaves remained with Crutchfield in Botetourt until the death of his wife, in- the latter part of the year 1830; when all but Isaac were sent back to Mr. Taylor’s, with the infant child of Crutchfield.

In June 1715, John Taliaferro made his will and devised the residue of his estate to be equally divided between his wife and his seven youngest children, - Charles, Robert, Zachary, Richard, William, Sarah and Catharine, the sons being left executors of the will. Charles and Catharine afterwards died in the lifetime of the testator; whereby their shares of the lands and slaves descended to their brother Lawrence, who was the testator’s eldest son and heir at law.

Chancellor Wythe mentioned to the court a circumstance which he had accidentally heard, and considered as a high ^breach of privileges. The chief justice of the general court had, a few days before, been served with a process from the county court of Henrico, the moment he stept off the bench of this court.

Pickett brought case in the county court of Henrico, against Herbert Claiborné and William Claiborne, and laid his damages at “one hundred thousand pounds of inspected… Held: that consent to confess judgment upon terms did not imply consent not to bring a writ of error. Which applies expressly to the case under discussion, and sustains the judgment of the general court. John Taylor, in reply. Upon reason and principle, consent takes away error; for volenti non fit injuria.

'THIS was a suit instituted in the late High Court of ° Chancery, (and afterwards transferred to the Court for - '*• ( the Williamsburg District) by Robert Green, of Matthews County, against the executors and legatees of Robert Sadler.

<p>By the act 1 Rev. Code, ch. 104, § 11, p. 377, a devise or bequest, whether of real or personal estate, to an attesting witness to a will, without whose testimony the will may not be otherwise proved, is void.*</p>

<p>Hugh Kelso of the county of Bath, died in December 1843, having first made and published a paper purporting to be his last will and testament, bearing date on the 15th November 1843, and written altogether in his own hand. That paper is as follows :</p> <p>In the name of God, amen: I, Hugh Kelso, of the county of Bath and state of Virginia, being weak in body, but of sound mind and disposing memory, (for which I thank God,) and calling to mind the uncertainty of human life, and being desirous of disposing of such worldly estate as it has pleased God to bless me with. That is to say, 1st. I give and bequeath to my beloved wife Ann Kelso all my live stock, to wit: horses, cattle, &c., also two feather beds and furniture, her choice, also the household and kitchen furniture, and what farming utensils I may have. 2d. I give and bequeath to my said wife Ann one third of the money and proceeds arising from the hire of the slaves now in my possession, and also of any other slaves that I may own, or may belong to my estate hereafter, to wit: Mercer, Mary, Maria, Fountain, Moses, Dick, David, Julian, Silas, and also the hire of the children of Mary and Maria, she the said Ann, is to obtain one third of, viz: James, Charlotte, Ben, John, Julian, Maria's children: and also she the said Ann, is to receive the same share, that is, one third of the hire and proceeds of the labour of the children of Mary, viz: Charles, Jane, Kathavine, Caroline, Martha ; and also, the profit of tho labour of any other children that Mary and Maria may hereafter boar, she the said Ann is to possess the same proportion as before mentioned.</p> <p>3rd. I give and bequeath to my said wife Ann, the tract of land on which I now live, and the proceeds thereof during her natural life ; and after her decease I direct that said land shall be equally divided between my two daughters Mary C. Kelso and Caroline Kelso.</p> <p>4th. I give and bequeath to my said daughters one third of the money and proceeds of the labour of the slaves above mentioned, that is, their hires &c. of all, and the same share of the profits arising from the labour of any other slaves that may hereafter belong to my estate. And said third part shall be put to interest until said daughters shall arrive at lawful ago, which will be on the 6th of March 1848, at which time I direct that said money shall be equally divided between them.</p> <p>5th. I give and bequeath to my two daughters Mary C. Kelso and Caroline Kelso, the residue of my feather beds and furniture equally, also my library of books equally.</p> <p>6th. I give and bequeath to my said daughters Mary C. Kelso and Caroline Kelso, all my bonds and open accounts, equally, when they shall become of lawful age, except the sum of 500 dollars, which I direct to be put to interest out of said bonds, or vested by my executor in landed property at his discretion, and the proceeds thereof, or tho interest of said 500 dollars, as the case may be, applied to the benefit of foreign Christian missions annually, until the year one thousand eight hundred and fifty-five ,• after the expiration of said period, I direct that the proceeds thereof be applied to the benefit of domestic missions in our own state, viz : Virginia, for time without limitation.</p> <p>7th. I direct my executors to hire out annually all the slaves that may belong to my estate, giving said slaves liberty to choose as far as practicable, with whom they shall live, except one man and one girl suitable to cultivate the farm, and to attend to house business, to remain in the service of my wife Ann during her natural life ; on the condition that said slaves be under forty years of age. If they, or either of them, be above forty years of age, such one, or if both above said age, they shall be emancipated ; and also all the other slaves before named, or any others that may belong to my estate, on their arriving to the age of forty years of age shall be emancipated ; and if there be any legal obstruction to their remaining within the limits of the United States such as renders their continuance therein impracticable, then I direct that they shall be sent to the Continent of Africa. And if they be unable to bear their expenses thither, then I direct that as much money as is necessary for that purpose be reserved from their share of the hires, (to be hereafter mentioned,) shall be applied to defray the expense of their voyage, and to furnish them with such outfit as is indispensable.</p> <p>8th. I direct that one third of the hires, that is of all the slaves, belonging to my estate now or at any future period, shall be paid to each of said slaves annually, in proportion to the sum each one shall earn.</p> <p>9th. I direct that on the arrival of the year one thousand eight hundred and fifty-five, (except my wife Ann be then living,) all the slaves belonging to my estate at that time shall be liberated, that is the residue of those who have not arrived at the age of forty years down to the youngest infant; those of forty years of age being previously entitled to freedom. Those slaves under forty years of age, shall remain in servitude until the decease of my wife Ann; at which time they shall be liberated, including the elder Ben and his wife Charlotte not before named.</p> <p>And lastly, I do hereby nominate and appoint John S. Kelso, executor of this my last will and testament, revoking all others by me formerly made. In witness whereof, I have hereunto set my hand, and affixed my seal, this 15th day of November one thousand eight hundred and forty-three.</p> <p>******** Hugh Kelso, * Seal. | ********</p> <p>In June 1844, John S. Kelso, the person nominated as executor in the will of Hugh Kelso, applied to the County Court of Bath, for letters of administration on the estate of said Hugh, which were granted; and he at the same time filed in the Court an explanatory affidavit, in which he said that in taking the oath “that Hugh Kelso deceased died without a will,” he did not intend to deny the fact of the execution of the aforesaid paper by his brother, as and for his will, but simply to affirm his conscientious conviction that the said will is not valid, because the said Hugh Kelso, at the time the paper aforesaid was drawn, did not possess that sound disposing mind and memory which the law requires to give validity to said paper, as the true last will and testament of the said Hugh.</p> <p>In September 1844, Ben Mercer and Mary Wright, two of the slaves emancipated by the said paper writing, applied to the Superior Court of Bath county to be permitted to propound for probat the said paper as the true last will and testament of Hugh Kelso ; and liberty being granted them, and the administrator and next of kin having been summoned, the cause came on to be tried in said Court in September 1845, when the jury found that Hugh Kelso was not of sound and disposing mind and memory on the 15th of November 1843, the date of the supposed will; and that therefore the said paper writing was not the true last will and testament of the said Hugh Kelso deceased. Thereupon the Court pronounced against the will, and refused to admit the paper to probat.</p> <p>The counsel for the propounders having moved the Court for a new trial of the issue, which motion was overruled, filed a bill of exceptions to the opinion of the Court overruling the motion, which exceptions embraced a^ ^acts Proved) and thereupon applied to this Court for a supersedeas, which was granted.</p> <p>The following is the bill of exceptions:</p> <p>On the trial of this issue it was proved that Hugh Kelso the alleged testator died about the first of December 1843; that some weeks before his death he had placed in the hands of Andrew Crawford, a cousin of his, for safe-keeping, the paper purporting to be his will. Two witnesses proved that the body of said paper writing was altogether in the handwriting of said Hugh Kelso, and that the signature thereto was his handwriting. It was also proved that about a week or ten days after the deposit of said paper writing in the hands of said Andrew Crawford, he received from said Hugh Kelso, then alive, a written communication in his Kelso’s handwriting, in the following words and figures, to wit : Dear Sir: As I am much indisposed and on the event of my not recovering I request you not deliver the paper that I committed to your care to any other person except the clerk of the Court in order to have it committed to record.</p> <p>Yours respectfully, <fcc.</p> <p> Hugh Kelso. </p> <p>It was also proved that about twenty years before the death of said Hugh Kelso, he married Ann Gerrard, now Ann Kelso, who survived him, and is now his widow ; and by whom he had twin daughters Mary and Caroline Kelso, also surviving him, and now about eighteen years old. That said Hugh Kelso’s father was a deranged man, so generally considered, and on one occasion raving, but never put under restraint in consequence of his supposed derangement. That Hugh Kelso himself exhibited symptoms of derangement about the time he grew up, such as dancing by himself, wildness of the eye, deep melancholy and strong religious excitement, so as to make his family uneasy about his condition ; but that these symptoms afterwards, in the course of a year or so, left him, except that he still continued eccentric, and did not return until about the age of thirty-five years, when he was married as aforesaid. That on the evening of his marriage he came to the house where it was to take place, and one of the company asked him if the parson would be there that night to marry him ; he replied that he would be there that night or the next day, he supposed. He did not arrive that night; was sem for the next day, when it appeared he had not been spoken to by Kelso to marry him, and on the said next day Hugh Kelso was married to his said wife, then a maiden lady somewhat older than himself, and ugly. That in a few days after the marriage Hugh Kelso abandoned his wife and went off some twelve miles, whore he staid several weeks or months, denouncing his wife as an old ugly woman, and saying he had sacrificed himself and married beneath him, and had committed a great sin in so marrying. That by the intervention and persuasion of his friends he was induced to go back to his wife in a few months; and that he lived with her till his death. That he got by his wife a negro man and woman with five or six children, from whom all the slaves belonging to him at his death, were descended ; but got no other estate by her. That he was a severe husband, taking from his wife the conduct of her household affairs and attending to them himself; a severe father, sometimes making his daughters work out in the fields at hay time and harvest. That he had given a colt to one of his daughters, a gentle animal, but which had never been broke ; and on one occasion, made said daughter ride the colt in treading out grain ; and being remonstrated with, said it was her colt and he wished her to break it after her own mind, that that was a good place to do it in. He would call his servants and send them to do a particular job, and before they would get where the work was, would often call them back to do something else. That he would in the presence of company often call out one of his daughters, speak to her, send her back and call out the other in the same way, and so on ; and would make them do menial acts when his servants were idle in the kitchen. That he had generally a wild expression of the eye, was restless, wakeful, rising through the night, sometimes one hour or more before day, singing psalms, and then calling up his family, flying quickly from one subject of conversation to another, and sometimes suddenly leaving company with whom he was in conversation. That on one occasion he put some little poles under the lower logs of his smokehouse and drove up slight stakes to keep them in place, but in such a way as any one might without difficulty remove them, and being asked why he did it, said that his neighbours were in the habit of stealing his meat, and he wished to prevent them. That on another occasion, not long before the date of the will, a neighbour went with his wife and some other females to his house, and found him in October or November sitting by the fire bathing his feet in warm water, carefully keeping the door of the house closed while he bathed. That when he was done he rose and went out into the yard in his bare feet, with his pantaloons rolled up, stood there some time silently looking on the ground. That while taking medicine he would expose himself in spite of the remonstrances of his wife. That he advised a witness, the Rev'd S. Brown, who was his pastor, not to build a barn on his land, that it would not quit cost, and that his crops would be safer without it. That on one occasion he told said Brown he had escaped a great danger, that his physician had sent him a vial of medicine, and that on pulling out the stopper it smoked ; that it at once occurred to him if he took it, it would burn him up, that he then poured it all out on the ground, and it smoked like fire. That in the summer, some time before his death, an apple tree was blown down on Sunday in his yard, full of green apples, that he had them all carefully gathered on that day and put away in his garret; the witness could see no use they could be applied to. That he said he was opposed to teaching his daughters more than reading and writing, as he thought women ought not to know more. That on one occasion in October 1843, he flew from one subject to another, was restless, not so pleasant as he had been in his family, his mind and body seemed impaired by disease, said if one of his daughters should marry a trifling fellow, he would confine and whip her. He was then sick, but witness found him out next morning feeding his stock and talking to one of his negroes; night before he had rose from supper and said he could not eat. He at that time sent a message by witness to a negro man of his at a furnace to send him some iron. About fifteen or eighteen years before his death, he bought a tract of land at 1400 dollars from a witness named Howell, who had bought it at about the same price from his, Kelso's cousin, Andrew Sitlington, which is the same land devised in the will, and was improved by him by liming, &c. Some years before his death, he was asked by a neighbour for some small pines growing on his land to use in building a church; at first he said he could not possibly do without these pines, and refused to give them, then immediately after gave them. That he would often go to stores and buy Ad. worth of goods in order to get a bank note changed. That he would often sit in church ringing his hands and talking to himself so as to annoy a witness sitting near. That some eighteen months before his death, he wrote a very foolish letter to one of the witnesses, containing words not to be found in the dictionary, unintelligible, except at the close, where he said he would give him something of a similar kind hereafter : but not produced at the trial. That on the 19th or 20th of November, a witness was sent for by him, to come and see him about a beef t^iat w^tness had bought of him the previous Septemher. That he had sent for witness a day or two before to come and take away the beef. That when witness went he told him he had been so lazy about coming for the beef that he had turned it out. Witness said he had counted on getting it, and must have it. He then went out with witness where the beef was, they agreed on the price, and returned into the house. There he got to talking politics with witness, became much excited, went out of doors ringing his hands and looking wild. After his death it was ascertained that he had entered on his books a credit instead of a charge to witness for said beef. In October 1843, a witness went to see him about the wood-work of a wagon that he had talked with witness about getting him to make. They agreed about the wagon, and he then told witness he had another job for him to do ; that he wanted him to cut off the corner of his bedstead, to prevent him from having to walk so far around it to the fire. Witness objected, that if that was done one side of the bed would be shorter than the other; well, said he, my wife is very short and the short side will fit her. That in the spring of 1843, he and a witness agreed for the lease of some of witness’s land, for which he was to pay one half the crop ; but if he would build a certain fence, he was to have it for one third of the crop. Next day he came to witness to know if he would rent him that same land. Witness told him he had rented it to him, and told him the terms. He then set off to go home, but before he got home returned again, and again asked witness if he would lease him the land. Witness again told him he had leased it, and repeated the terms; when he said- he would make part of the proposed fence, on which they agreed. He then took possession of the land, but never made the agreed fence. It was proved that said Hugh Kelso never was put under any restraint: never committed any act of violence ; was a consistent professor of religion for many years ; very strict in the performance of his religious duties ; well informed on religious and historical subjects, often conversing eloquently ; very economical in his disposition and habits : careful of the morals of his pupils when a teacher, and of his daughters; always conducting his affairs economically and savingly ; and a close dealer, generally making good contracts, and collecting his money closely ; punctual and honest; and that no one questioned his right and capacity to deal; and that most of the witnesses dealt with him. That one witness had gone to his house in the fall of 1843 to sell him some cattle, found his health very bad, proposed a trade to him, when Kelso said he had not time then. Witness insisted ; Kelso again said he wanted the cattle, but he had not time. Hurried about the house, looked wild, rung his hands, said he must cut out some shoes for his negroes at once, went out; witness then was so convinced of his insanity that he would not sell his cattle to him, without consulting his wife. That on one occasion he sent his daughters to the field with two negro men and a woman to work, but soon after followed himself. That in October or November 1843, a witness told him that some of his hogs were at his house, and asked him if he did not want them; he said no, he would exchange them with witness for some shoats. To this witness agreed, went home and fastened up the hogs. Next day one of Kelso’s negroes came over, as witness understood by his orders, and took away the hogs, to which witness did not object. That a witness, James M. Wood, owed Kelso some money, and James Lyle was indebted to said Wood ; that witness agreed to give Kelso an order on said Lyle for the amount he owed him, when Kelso in his own hand, wrote the following order:</p> <p>3d Aug. 1843 — Sir, please to let Mr. Thomas A. Bell have three hundred feet of 1J inch plank, and the ballance of what you are due, that is $ 6 25 in all the residue after the 300 feet of l-J inch plank being reducted, to be sent in f inch plank, and in' so doing you will much oblige, yours respectfull.</p> <p> Thos. E. Wood. </p> <p>Which witness signed. That on several occasions for several years before his death, said Kelso has expressed to a witness, James Howell, his conviction of the evil of holding men in slavery: and said he thought every one ought to liberate them as soon as he could. That to another witness, James Via, he spoke on two occasions to the same effect; the last time being about the 1st November 1843 ; at which time he mentioned the difficulty he felt about the manner of disposing of his own, and suddenly left the witness standing in the midst of the conversation. That to another witness, John Armentrout, he several times, some years before his death, expressed his determination to liberate his slaves at his death: all which witnesses believe him compos mentis, at the dates of said conversations respectively. That on one occasion he got Mr. Bell, a merchant, to change a note for him. Bell gave him the change, and he took the note and change and went out of doors with the witness, there being a crowd in the store at the time, to count it over. After he had counted over the change and found it right, he requested witness to go in with him and see him hand the note to Bell, which was done, when he touched the witness privately to induce him to notice it. That shortly before his death a witness told him he was in present need of some money, and proposed to sell him a bond he held on a good man for 50 dollars at the price of 40 dollars. Kelso said he had not that much money, but proposed, that if witness would let him have the bond he would give him for it twenty dollars cash, and twenty more when he collected the boud; to this the witness did not agree, as he wanted all the cash. That on one occasion he complained of a neighbouring miller, that he had not got a full return from the mill, when, on enquiry, he admitted that he had not weighed his grain on sending it to the mill, but had only weighed the meal sent home. In a settlement with one of the witnesses, he gave up or proposed to give up two or three small bonds as paid, which the witness owed him and which were not paid, but the same witness as the agent of another person leased him some land, and on settlement of the rent, Kelso insisted on a mode for settlement which deprived witness’ principal of about two hundred and fifty bushels of rent corn to which he was entitled. Witness know he was wrong, but was forced to submit or have a lawsuit, and submitted. This was several years before his death. None of the witnesses saw said Kelso from about the 1st of November to the 19th or 20th of August 1843. About thirteen years before Kelso’s death, he called on a witness, Col. Thomas Sitlington, his cousin, to write a will for him. At that time the emancipation of his negroes was talked of by him, but the witness told him if his object was to disinherit his wife and children he must get some one else to act as his scrivener. He then told witness to write what will he pleased. Witness then wrote three or four wills for him, with none of which he was satisfied. Witness wrote nearly a week for him, but could get nothing to suit him. While thus engaged he spoke of belling all the cattle, black and white, meaning his wife and children and slaves, and turning them out in the world. Witness thought him insane then, at last he became more calm; witness wrote a will for him which he executed, and witness attested. By this will his slaves were not emancipated, nor by any that witness then wrote ; though he does not remember the provisions of the one that was executed. A few months after, he got this will from, witness, and never gave it back again. In conversation with this witness on slavery, he at one time would condemn it, and again would endeavour to shew from the Bible that it was right. He was a recluse m his habits, and maintained at different times different religious doctrines. The above facts having been proven by various witnesses, the Rev. Samuel Brown, his pastor, Thomas Sitlington, John Sloan, Samuel M, Daniel, Walker Kelso, John Allen and Andrew Sitlington, his cousin, and Samuel Crawford, also a cousin, and the custodier of this will, and Thomas O’Kain, Jos. Bell, Sen., Jos. Bell, Jun., Thomas A. Bell, William Aris and John Hepler; many of whom had been on the most intimate terms with him, were his near neighbours, and had known him from his infancy, gave it as their decided opinion that he was non compos mentis, and had been so ever since his marriage with his wife. On being asked the grounds of their opinion they all agreed as to the wild expression of his eyes, his restlessness, incoherent conversation, flying from one subject to another; and some of them stated the facts above certified. While Dr. Coiner, a physician who had occasionally attended him, and had lived in the neighbourhood since 1836, Jas. Howell, Adam Surber, John Amentrout an old pupil of his, but who had not seen him for nine years before his death, Henry Rush, George Mayse, Orlando Griffith, who had known him thirty years, James Via, and Jonathan Demmon another old pupil, while they considered him as eccentric, sometimes flighty, singular, &c., yet thought him always sane and capable of doing a valid act, and disposing of his property. Said Coiner thought his bodily health had failed in the latter part of his life, and that his mind had become weaker with his body; that he was in a strange state of mind; that he overtasked his mind, and was not able to bear up under it; that he was very flighty, restless, full of notions, wakeful, sleeping in the forepart of the night, but up at unusual hours; still he thought him always sane, capable of doing a valid act, and making a will.</p>

Error, from a judgment of the court of hustings in Petersburg, in ejectment. The error assigned was, That the declaration did not aver the defendant to be a citizen of the town; and therefore the plaintiff had not brought his case, within the jurisdiction of the court.

Posey was convicted, in the general court, upon an indictment, which charged, that the said John Price Posey, ‘ ‘on the fifteenth day of July, in the year of our lord one thousand seven hundred and eighty-seven, between the hours of ten and two in the night of the same day, with force and arms, at the parish aforesaid in the county aforesaid, two houses, to wit, a certain house of one William Clayton there situated, and also, one other certain house, to wit, the common gaol…

<p>j. a bonk dtdoi’iw-^of any equitable lien m the original venwhom1;"the mortgagor purchased,) ciiase of tiie mortgagor A reu-aso of tbe eauily of redemption, (even after notice from the vendor,) in consideration of any just claim of his upon the mortgagor, originating before such notice ; hut, after notice, the lien attaches, torso much as he may have actually paid, or agreed to pay, for such release, over and above the claims for winch the mortgage was taken, and which originated before the notice.</p> <p>2. A vendor, having conveyed a tract of land by an absolute deed of bargain and bale, Hi which, and by a receipt at the foot whereof, he acknowledged t hat the consideration expressed was fully paid, having, nevertheless, taken the vendee’s" bonds for the amount ^thereof, and continued to live on the land, by virtue of a parol agreement, that he sh ovdd retain possession until the contrae* on the part of the vendee should be fully complied with, retained an equitable lien on the land against a purchaser from the vendee having actual notice of such agree* ment.</p> <p>3. In equity, either party to a deed may aver and prove against the other, or against^ pur» chaser with notice, the true consideration on which the deed was founded, though t different consideration he mentioned therein ; but a bona fide purchaser, without notice of the exist* «¿1C e of such consideration, is not to be affected thereby.</p> <p>4. The vendee, or his legal representatives, ought to be parties to a suit in Chancery.'» brought by the vendor against a subsequent purchaser, to recover a balance alleged. tQ be due from the vendee.</p>

<p>Debt, in the circuit court of Amelia, by Wills the indorsee, against Barrett the maker, of a promissory note for 300 dollars, made negotiable at the bank of Virginia, and therefore, placed on the same footing as foreign bills of exchange, by the amended charter of the bank, 2 Rev. Code, ch. 194. § 10. p. 78.</p> <p>The declaration stated the note, as a promissory note in writing, commonly called a negotiable note, dated the 8th June 1826, made and delivered by the defendant Barrett to one Southall, for 300 dollars, payable to Southall or order ninety days after date without set-off, negotiable at the office of the bank of Virginia at Petersburg; and, after alleging the indorsement thereof by Southall to the plaintiff Wills, averred, that, afterwards, when the note came to maturity, the same was presented for payment at the'said office of the bank, and payment thereof demanded there, but the same was then and there not paid, and yet remained wholly due and unpaid. Plea, the general issue.</p> <p>At the trial, the defendant filed exceptions to an opinion of the court, stating, that the plaintiff, to support the issue on his part, offered in evidence the note in the declaration . . , 7 , mentioned, which was set out in hcze verba, and was a note made negotiable (but not payable also) at the office of the bank of Virginia at Petersburg; and that, there being no other proof, the defendant’s counsel thereupon moved the court to instruct the jury, that the plaintiff could not maintain his action, without proving the averment in his declaration, that the note was presented for payment at the time and place mentioned in the note and declaration; which instruction the court refused to give the jury; and the defendant excepted to the opinion.</p> <p>The jury found a verdict for the plaintiff “ for the debt in the declaration mentioned, with interest from the 10th September 1826, subject to a credit for 53 dollars paid on the 26th September 1826 ;” and the court gave judgement for the plaintiff, pursuant to the verdict, for the debt and interest thereon, subject to the credit of 53 dollars. Wills applied to this court for a supersedeas to the judgement which was awarded.</p>

<p>Ejectment by George Thomason against Ambrose, John and Tabitha Anderson, in the circuit court of Louisa, for 100 acres of land in that county. Upon the trial a special verdict was found, stating the following case :</p> <p>That John Anderson died seized of the premises, in 1800, having duly made and published his will, whereby he devised and bequeathed, inter alia, as follows: “ As to my estate both real and personal, I dispose of it in manner and form following”—“ I give to Patsey Anderson, my natural daughter, 100 acres of land in Louisa” (describing it) “ also the two following negroes” (naming them) “ one feather bed and furniture, one choice horse and side saddle” (and some other chattels) “ to her and her heirs forever—I also lend her, during her being in a single state, the two rooms being in the west of my dwelling house, called the hall and study”— with sundry other property real and personal particularly mentioned; and then the testator added, in the same clause— “ My further will and desire is, that if she should die leaving no child, the estate before given should return into my estate, and be divided as hereafter mentioned, viz. amongst all my children, but should she leave a living child or children, then the estate shall be heired by him, her or them, as the case may be.” The testator then gave some real and . personal estate to two of his legitimate children, and con-eluded his dispositions of his property, with the following residuary clause: “As to the rest of my estate, including the lands in Louisa not yet disposed of, negroes and property of every kind, I will and dispose of it to the following of my children, viz. Sally Pulliam, Betty Richardson, Francisca Johnson, and Augusta Johnson, to them and their heirs forever, except Betty Richardson’s proportion, and that proportion of my estate, my will and desire is, shall remain with her and for her use, at the discretion of my executors, and after her decease to be equally divided among all her children.”</p> <p>That the hundred acres of land devised to the testator’s natural daughter, Patsey Anderson, was the land in controversy.</p> <p>That the devisee Patsey Anderson, in her lifetime, by deed of bargain and sale, dated the 18th October 1815, conveyed the land to John Thomason, who by deed of bargain and sale dated the 20th November 1821, conveyed it to George Thomason, the lessor of the plaintiff.</p> <p>And that Patsey Anderson died shortly after her sale and conveyance of the land to John Thomason, leaving three illegitimate children, Ambrose, John and Tabitha Anderson, the defendants in this cause.</p> <p>And then the verdict referred the question of title to the court—without finding, that Patsey Anderson entered on the land under the testator’s will, and was seized and possessed thereof at the time of her conveyance to John Thomason ; or that he entered under that conveyance, and was in possession at the time of his conveyance to the lessor of the plaintiff; or that the defendants were in possession at the time the ejectment was brought—that is, the formal finding of lease, entry and ouster, was omitted.</p> <p>The circuit court (apparently, without adverting to the imperfections of the verdict) held, that the law was for the defendants, and gave judgement for them ; from which the lessor of the plaintiff appealed to this court.</p>

This was a bill filed in the Circuit Court of Monroe county by William Campbell against Andrew Beirne and others, seeking to enforce a lien on a tract of land then in the possession of Beirne, for a balance of purchase money of the land due from a previous purchaser. The pleadings and proofs present the case as follows : In 1794 William Estill sold to Samuel Campbell a tract of land in the county of Monroe, near the Red Sulphur springs.

<p>j. Natural or ¿Ssf b°o”* ’j”®8 °tfj,“81'k'' estabii iieti b° in prtfcrence to mere course and mistáken' det X’veys^or11 oonvej anees. 2. It seems to he mutter ot law, on which the Court, if either party require it, should instruct the Jury, that a marked line shall prevail over one ‘which wat ver marked.</p>

William Graves and John Hague, as well on behalf of themselves as of the commonwealth, filed a libel, in the court of admiralty, against the ship Cyrus, James Dawson master, for a breach of the then revenue laws of the state, charging that the ship, on the 22d of June, 1786, imported salt and other articles, from Philadelphia, into the port of Norfolk, without reporting the same truly to the collector; but made a false entry thereof, bj' concealing 1000 bushels of salt, some…

Pendleton and Lyons, surviving administrators of John Robinson deceased, in April 1774, brought an action on the case, in the then general court, against Peyton Randolph, John Robinson and Benjamin Grymes, surviving executors of Philip Grymes deceased, and John Taylor and Francis Thornton, acting executors of Presley Thornton deceased; and declared, “for that whereas the said Philip Grymes and Presley Thbrnton, in their livestime, to wit, on the sixteenth day of June, one…

In an action of covenant, brought by Binford against Bolling administrator of Tabb, in the circuit court of Dinwiddie, the plaintiff declared, That Tabb, in his lifetime, by indenture dated the 1st March 1815, in consideration of 2285 dollars, granted, bargained and sold, to Binford and his heirs, two parcels of land in the county of Dinwiddie; and that “ the said Tabb then and thereby did covenant, for himself and his heirs, to and with the said Binford, that he the said…

Blackford & Son brought an action of assumpsit in the Circuit Court of Page, against M’Cormick, which, with two other suits depending in the same Court, one by M’Cormick v. Blackford, and the other by the same plaintiff against Blackford Sp Son, was by a rule of Court referred to arbitrators, whose award was to be entered as the judgment of the Court.

The constitution of the state of Virginia declares, that “the two houses of assembty shall by joint ballot, appoint judges of the supreme court of appeals, and general court, judges in chancery, judges of admiralty, secretary, and the attorney general, to be commissioned by. the governour, and continue in office during good be-haviour.” Art. xiv. Const. Virg.

This was a suit brought by Alexander Spotswood, the appellant, against the ap-pellees, in the late High Court of Chancery.

THIS was a suit brought by Alexander Spotswood,, the ° J \ appellant, against the appellees, in the late High Court of Chancery.

This is the sequel of the case of Robinett v. Preston's heirs, reported in 2 Rob. R. 273.

Dudley recovered a judgement against Epes’s administrators, in the circuit court of Prince George. Held: that Dudley’s execution was regularly sued out, and overruled the motion; to which judgement, on the application of Epes’s administrators, a supersedeas was awarded by a judge of this court.

DEBT upon a bond, with condition, that if the obligor, Fontaine, do cause a good and lawful right to be made to the obligee, Lassly, so that he enjoy peaceable possession on or before Sept. 19, 1797, to a tract of land, lying in Davidson County, State of Tennessee, containing 640 acres, granted by the State of North Carolina, to Stockley Donaldson, by grant dated July 20th, 1796, then, the obligation to be void; and avers, that the defendant hath not made, &c .plea, “…

In October 1839, Tyree D. Thompson obtained from the Circuit Court of Franklin county, an injunction to a judgment obtained against him in that Court by Chisholm Griffith. In his bill, he stated that he had been emPloyed for several years by Griffith to manage his store in the county of Tazewell, and that Griffith was indebted to him for his salary of 120 dollars a year, and other expenses incurred for him, in the sum of 402 dollars 37£ cents.

Hugh Raine, Charles Raine, Miller Woodson, and others, were appellants in a cause depending in this Court, which was an appeal from a decree pronounced against them by the Circuit Court of Lynchburg, in a cause in which the Bank of Virginia was plaintiff, and they and others were defendants.

<p>Execution — Endorsement of “No Security”— Statute Construed,* — Tie clerk was not authorized, after the act of the 4th of January, 1788, to endorse, upon a writ of fieri facias issued on judgment obtained upon a forthcoming bond, before that day, that no security was to be taken.</p>

This was an action of trespass vi et armis, brought by Wyatt against Jordan, in the Circuit Court of Nansemond. The declaration contains two counts.

GAINES, executor of Robert Page and Pollard, administrator of John White, brought a bill in Chancery against the widow and children of Carter Braxton, deceased, who left no executor, and on whose estate no person had administered for the discovery of certain slaves and other property mortgaged to Page and White by Braxton, June 10, 1792, by deed acknowledged and recorded in the General Court, for the purpose of indemnifying them against certain securityships for him; but…

John Thornton, late of Culpeper, died in 1822, having first duly made and published his last will and testament, whereby, inter alia, he' devised and bequeathed sundry real and personal estate to his wife Jane Thornton (it seemed a very large provision for her) and named her and his son George Thornton executrix and executor. The will was proved in the county court of Culpeper, at April term 1822.

By the act of assembly, passed at the October session 1782, intituled ‘an act to amend and reduce the several acts of assembly for ascertaining certain taxes and duties, and for establishing a permanent revenue into one act,’ it is enacted, “That on all vessels at entrance or clearance from, or to, foreign ports, or from, or to, any of the United States, vessels of war excepted, there shall be paid, by the master or owner thereof, the duty of one shilling and three pence per…

WARDEN, for the appellee, moved to take up this cause out of its turn, as a delay case, notwithstanding there was a bill .of exceptions in the record. But he contended, that the exceptions were merely frivolous, being to the opinion of the Court, refusing a motion for a continuance.

In June 1786, William Gatewood filed a libel in the court of admiralty, against the brigantine Molly, Robert Fairclough, master, and her lading, consisting of various articles, for a breach of the state revenue laws of that period, charging that the master imported in the said vessel, from Diver-pool, Great Britain, sundry merchandize, without making a true report to the naval officer at Tappahannock, where the vessel arrived ; but, on the 19th of May, 1786, made a false…

THE appellant obtained an injunction in the Superior Court of Chancery, for the Williamsburg District, to stay' proceedings on a judgment at law rendered by the District Court of Suffolk.

This was a motion made by Skinker, late high sheriff of Fauquier county, against Weaver, as one of the sureties of David James, a deputy of Skinker, to recover a sum of money which Skinker had been compelled to pay for the default of James, in not paying over a sum of money which he had received on an execution that had been placed in his hands.

ASSUMPSIT brought by John Cole and Rebecca his wife (late widow of Hamlin Eppes, deceased) against r- _ Peter Eppes, in the District Court of Petersburgh. ,,,, . . , m , l he declaration contained three counts ; 1st. r or use and occupation^ for 19 years, of 252 acres of land, which were, at the time of such occupation, the property of the plaintiff’s wife, who was then a feme sole, J 1 1 laving the Promise to the plaintiffs ; 2d. ¡Quantum vale- - ° 1 if c bat, for use and…

This was an action of assumpsit for money lent and advanced, had and received, laid out and expended, and on an account stated, by brothers Nottebohms, foreign merchants, against Mertens, in which they claimed the sum of 1306 dollars. Plea, the general issue.

William Walker, late of Brunswick, who died in 1789, by his last will and testament, devised and bequeathed as follows: “ After my debts are paid and all accounts together with merchants’ accounts are settled and discharged by my executors hereafter named, I give my beloved wife Sarah the land I now live on during her life, and all the stock of each kind, and the household furniture, until my daughter Sarah and my son Leonard come of age or marry; then they shall have as…

THIS was an appeal from a decision of the Superior Court oi’Law,(1)held for the county of Accomack, on the 6th of May, 1809, refusing to grant a mandamus to the County Court of Accomack, commanding that Court to remove a cause to the Circuit Court of the United States, for the District of Virginia, on the grounds stated in the petition of the applicant.

Norvell’s ex’or brought an action of debt in the Circuit Court of Lynchburg against the administrator of Christopher Isbell, upon a bond executed by the said Christopher and William J. Isbell. The defendant filed a special plea, under the act of April 16th, 1831, Sup. Rev. Code, p. 157, in which he alleged that the bond was given for the hire of two negro men Edwin and Henry, for the year 1833.

<p>On the 7th of March 1842, a decree was made in a cause depending in the Superior Court of Chancery for the Richmond circuit, in which Robert C. Williamson was plaintiff, and Levin Gayle and John M. Botts were defendants, hy which decree the plaintiff’s bill was dismissed, with costs to the defendant Botts. From this decree an appeal was allowed by one of the Judges of this Court, on the 30th of March 1842, upon the appellant’s executing a bond with surety, in the penalty of one hundred dollars, with condition to pay the costs of appeal if the decree should be affirmed. The case was put upon the docket of the Court j and an appearance for the appellee was entered by his counsel,, by marking himself as such on the docket, which, according to the practice of the Court, is understood to dispense with the service of the process. Subsequently, the record, as in a pending appeal, was printed, by the direction of the counsel on both sides, and the cause stood for hearing ; but the appellant neglected to give the bond in pursuance of the order allowing the appeal. In November 1847, more than five years having elapsed from the date of the decree of the-Court below, the Court, on the motion of the appellee by his counsel, superseded the order allowing the appeal; whereupon the appellant by his counsel moved the Court to set aside this order and reinstate the appeal.</p>

<p>THE only points which the Court deemed it necessary to consider in this cause, were,</p> <p>1st. Whether, after a trial and verdict at law, a Court of Chancery could interpose, on the ground that the defendant was ruled into a trial, m the absence of some of bis witnesses, to whose materiality he had made affidavit; ,</p> <p>2dly. Whether, if a defendant in an execution gives a furthcoming bond for property which does not belong to him, or in which he has but a qualified interest, his seenritics in such forthcoming bond can be relieved in Chan-eery, on taut account.</p> <p>Montague recovered a judgment against Syme, for work and labour performed as a carpenter. An execution issued, which was levied on some negroes, and Syme and others, his sureties, entered into a forthcoming bond for their delivery to the sheriff, at the time and place of sale. Syme and his sureties then obtained an injunction from the Chancellor of the Richmond District, (the late Mr. Wythe,) stating, among other things, that Syme had been ruled into a trial of the action at lav/, although he had made affidavit of the absence of some of his witnesses, and of their materiality; in consequence of which a judgment for much too large a sum had been rendered against him; and that the negroes taken in execution were, in fact, not his property, but had been settled in a marriage contract upon two of his daughters. The Chancellor dissolved the injunction, and finally dismissed the bill. Syme and his sureties appealed to this Court.</p>

The statement of this case will be found in the following- opinion delivered by JUDGE TUCKER, after argument by Hay and Randolph, for the appellants, and by Wickham, for the appellant:‡ JUDGE TUCKER.

<p>i. Where two joiut-tenants, of full age, under*'^noTe? ™kf"ffition of a tract of land, by deed, according to au old survey, (both being equally ignorant of its accuracy, and no fraud or misrepresentytion appear-mg,) such division, howeyei'. unequal, them and their assigns,</p> <p>2. If I. J. purchase,at so muchpeiacie, a certain tract of land^cwto/ name, situate ofAconvwJeS to the said C. by diedro f certain date, said to be a moiety of a larger tract granted to an ancestor of R. C., and com-the^Tots^'nd land laid down in a certain survey,” this is a purchase by metes and bounds, by virtue of which 1. J. is entitled to no more than the land within the limits of such survey. 3. No particular form of words is necessary in the signature of a deed by an attorney in fact; provided the act be done in the name of his principal It is therefore indifferent whether he sign it “ B. W.y attorney for 11. C.f or cí R. C. by 11 IV., his attorney.”</p>

<p>1. Where there are conflicting claimants of a trust fund, who are prosecuting separate suits in the same Court, to subject it, the appointment of a receiver in one of the suits, on the motion of the plaintiff in that suit, will enure to the benefit of the plaintiff in the other suit, upon the establishment of his superior right to the fund.</p> <p>2. The parties being substantially the same in both suits, the successful plaintiff may have an order in his own suit for the settlement of the receiver’s accounts, and a decree against him for the amount found to be in his hands.</p> <p>3. The suit in which the receiver is appointed, embracing other matters, beside the trust fund which is in dispute, all these matters are adjudicated and settled; and the disputed subject is silently dropped in that suit; and the cause sleeps, or is finally decided ; but the controversy as to the disputed subject goes on in the other suit; and the receiver, not having been formally discharged, continues to hold the disputed subject. The plaintiff in the second suit, though he was not a party in the first, having succeeded in the controversy, he is entitled to have an account and decree against the receiver in his own suit.</p> <p>4. The law in relation to the appointment, duties and responsibilities of receivers, investigated by Baldwin, J., in whose views the other Judges concurred.</p> <p>5. A trustee defendant resisting the plaintiff’s claim, and failing in his defence, is liable for costs.</p> <p>6. Plaintiff and defendant each setting up pretensions greater than they sustain, though each succeeding in part, may each be decreed to pay his own costs.</p>

In an action of covenant, brought by James Mercer against Samuel Beale, in the general court, Mercer recovered judgement against Beale, at June term 1792, for ¿B2500. damages assessed by the verdict of the jury, and costs of suit; the verdict and judgement, according to the law and practice at that day, being simply for the amount of damages, without giving interest thereon.* And upon this judgement, Mercer sued out a writ of fieri facias, dated the 26th June 1792,…

Upon the 29th of October, 1751, an order of council was made, granting to Thomas Nelson and others, members of the Green-brier company, leave to take up 100,000 acres of land on Greenbrier river, northwest and west of the Cowpasture and Newfoundland ; and four years were allowed them to survey and pay rights for the same, upon return of the plans to the secretary’s office.

<p>l. When brought ^p to ConrtPupon a bill of exceptions, the Court wiiiin-* recorrf, and, if errar, iviUre> Judgment11 for such error, though they may be of opiConrt below ty onlh^fajt exceptions were taken.</p> <p>2. If a cause be remanded Court,“an™! rerted^the111" superiorCourt taust be presumedtohave Jieckration 6 semientlv.C°on oreonTLw appeal, no exception can be taken to the declaration.</p> <p>3. Where a suit would haveabatedby the death of the plaintiflj and the defendants might have been permitted to plead ae nova, if they omit to avail themselves of the death of the plaintiff, but, on the contrary, admit that certain persons are his surviving partners, and go to trial without asking permission to plead. de novo, they are precluded from making the objection after verdict.</p> <p>4. After verdict for the plaintiff, on the plea of nil debet, it is no ground for arresting judgment, that the claim, as shewn by the declaration, was barred by the act of limitations ;■ ‘for it will be intended that, if the act were given in evidence, the plaintiff rebutted it by some other evidence, which avoided, its operation.-</p>

THIS was an appeal from a judgment of the General Court, overruling a motion made in behalf of the Commonwealth against the appellees as sureties of Alexander White, late sheriff of Jefferson County, for the taxes which accrued the second year of his sheriffalty, he having been commissioned, and given bond and security for the first - year only# White being appointed sheriff, by commission dated the 27th of June, 1805, on the 9th of July following, gave bond for the…

William Fitzhugh of Marmion, who died in 1791, by his last will and testament devised and bequeathed, inter alia, as follows—“ I leave ray son Philip Fitzhugh all my estate, real and personal, which shall remain after payment of my legal debts, the support of my wife, and the legacies herein bequeathed”—and, in the sequel, he bequeathed, that his executors should pay his daughters Elizabeth and Anna Fitzhugh, the sum of £25. per annum, each, while they should remain single.

AN appeal was taken in this case, from the judgment of the District Court of Fredericksburg, for the purpose of settling a point of practice, stated to be of great importance t0 t]ie countrv. It was a suit brought in that Court by the appellants against the appellee; the writ in which was executed after the first day of the term to which it was returnable.

Alexander Wells brought ejectment for a tract of land situate in the county of Ohio. In October 1787, James Hambleton was admitted defendant; pleaded tbe general issue; confessed the lease, entry and ouster ; and agreed to insist upon the title only at the trial; and of this he put himself upon the country, and the plaintiff likewise.

Upon the --day of-- — , 17 — , Bow-doin, as surviving partner of Phripp & Bowdoin, brought assumpsit against Calvert; and declared, 1, for .£104. 13. 6. specie had and received to the plaintiff’s use' — 2, for £1046. IS. paper currency equal to 218 £104. 13. 6. specie, as due to *the plaintiff upon insimul computassent. Plea, the act of limitations; and issue.

David Ross & Company declared against Browne in his own right upon the following bond: “Know all.men by these presents, that I, William Browne, of Surry county, executor of William Browne deceased, am held and firmly bound unto David Ross & Company in the just and full sum, &c.” without naming any day of payment in the penalty, which bore date the 17th day of December, 1787.

<p>Equity Jurisdiction — Agents—Accounting.†—A private uncliartered company, associated for the purpose of carrying-on business as a bank, though such associations are contrary to law, shall be entertained in a court of chancery, in a suit against its cashier, for an account of his agency.</p>

EJECTMENT by Robert Pollard against John Paylor, in the Fredericksburg District Court, for one messuage and a tract of land, in the County of Caroline. The Turv found a snecial verdict, statins', that, on the of the land in question, and on that day executed a deed of trust to James Brown, of the City of Richmond, for the purposes in the said deed mentioned, which they find in ^lcec verba.

The note, upon which this suit was brought, was for payment of • £300, with interest from the date; and the declaration was for ¿3Ó0,, without saying any thing about interest. The defendant pleaded payment, and the plaintiff took issue. At a subsequent term, the defendant’s attorney withdrew, the plea, and the court entered judgment for the, ^300., with interest'from the date of the note!. The defendant appealed, to this court.

This was a writ of dower unde nihil habet, brought in the circuit court of Cumberland, by Susanna Langhorne, widow of William Langhorne deceased, against Thomas Hobson, to recover dower of land of her deceased husband, now claimed and held by Hobson.

■ Gregory brought an action of slander against Tabb. The declaration stated, that the plaintiff was a candidate for the house of delegates; and that the defendant, in order to disappoint his election, spoke the words in the presence of the ^freeholders and others of .the county. The defendant justified. as to some, of the words, and pleaded not guilty as to the rest. General replication to the whole plea, and issue.

By the act of assembly, passed in 1758, relative to fradulent gifts of slaves, it is provided, that, “Whereas many frauds have been committed by means of secret gifts made, or pretended to have been made, of slaves, by parents and others, who have, notwithstanding, remained in possession of such slaves as visible owners thereof, whereby, creditors and purchasers have been frequently involved in expensive law suits, and often deprived of their just debts and purchases: For…

Assumpsit by Buzzard’s administrators against Gore, in the county court of Frederick. The declaration contained, 1. the common count of indebitatus assumpsit for the agreed price of goods sold and delivered by the plaintiffs’ intestate to the defendant, and 2. a count of quantum valebant for the same goods. The defendant pleaded non assumpsit, and the statute of limitations; but, it seemed, no effort was made to sustain the latter plea.

In 1687 a patent was granted to William Byrd for a tract of nine hundred and fifty-six acres of land, on the north side of James river, in the county of Henrico, beginning at the mouth of Shockoe creek and running ^own James river, according to its meanders and windings, (and after other metes and bounds,) thence to Shockoe creek; thence down the said creek, according to the windings thereof, to the place it began.

James Lyle administrator of James Lyle the elder deceased, who was the surviving partner of Lyle Sf M’Cree~ die, presented a petition to the county court of Albemarle, at August term 1S2I—shewing, that Robert Miller, a merchant of that county, was indebted to Lyle M*Creedie, on an unsettled and running account, common among merchants, in'the sum of 141 dollars, and died without settling the account, leaving no personal estate to pay the debt, but seized of a parcel of land…

<p>Escheat of Debtor’s Land — Petition of Creditor — Affidavit — Evidence.*—upon a petition under the statute 1 Rev. Code, ch. 83, § 14 by the creditor of a person whose lands have been escheated, the creditor is required to make affidavit that the amount of his demand is bona fide due. but this requisition of the statute does not dispense with the necessity of other evidence: the court can only render judgment for such sum as is proved to be due.</p> <p>Appellate Practice — Judgment for WhoBe Demand, When Whole Not Proved — Effect,—If judgment has been rendered for the whole amount of the demand, when the whole is not proved to be due, and it is uncertain to what part the proof extends, an appellate court will reverse the judgment and dismiss the petition.</p> <p>Escheat of Debtor’s Land — Right of Escheator to Plead Statute of Limitations. — The escheator who is defendant to the petition, has the same right to plead the statute of limitations in bar of the petition. that a representative of the debtor would have to plead the statute in bar of an action.</p> <p>Same — Same— Exception.-Qumre. whether the exception in the statute of limitations, of accounts which concern the trade of merchandize between merchant and merchant, will apply to accounts, no item of which has arisen within flve years?</p> <p>Statute of Limitations — Exception—Dealings between Merchant and Merchant — Proof†—Case at Bar. — Rep-iicaüon to tie plea of the statute of limitations, that the accounts concerned the trade oi merchandize between merchant and merchant: no evidence is adduced to prove that either party was a merchant during the time of the dealings between them, nor any evidence of the character of those dealings hut that furnished by the account of the petitioner; in which account, the debits to the alleged debtor, consisted of two items for cash paid him on account of bills of exchange, one item for goods sold him. and the other items for cash ad va need to or for him, and there was a single credit for the proceeds of a bill of exchange bought of him: Held, that the replication was not supported by the evidence, and the demand therefore was barred by the statute.</p>

Thomas Pollard, on, the 22d of November, 1786, filed a bill of injunction, against John Rogers and others, stating that, on the 12th of August, 1782, he purchased of Rogers 645 acres of land for ,¿1200, part of which he paid down, and gave two bonds for the residue. That, on the 12th and 13th of August, 1782, he took deeds of lease and release from Rogers and his wife for the land, with general warranty.

THIS was an appeal from an order of the late Chancel-t^le Richmond District, (Mr. Wythe,) rejecting the application of the appellant for a bill of review.

Parish Coleman, and Catharine, (formerly Catharine Rogers,) his wife, filed their bill in the high court of chancery against John Rogers and Thomas Pollard, stating, that William Rogers, the father of the plaintiff Catharine, devised his lands, consisting of 645 acres, to his two sons, John and parkin, and his slaves and personal estate among all his children ; but directed that, if either of his children should die before twenty-one years of age, the part of the one so…

JOSEPH DARMSDATT instituted an actioti of tres- , o pass assault and battery against Benjamin Wolfe, m the Hustings Court of the City of Richmond. The capias was teturned executed to August term, 1801; and a writ of inquiry awarded to the ensuing November term, when the plea of not guilty was put in by the defendant, issue joined, and the cause continued at his costs.

Gill and wife, in right of the wife, brought an action of waste against Ross, upon a lease without a seal, made of a plantation and houses belonging to the wife, by Lucy Newsum, her guardian, appointed by the county court.

Herbert Elder, late of Petersburg, died in June 1826, having by his last will and testament, after directing that all his debts should be paid, and bequeathing some trivial legacies, bequeathed and provided as follows: “ it is my will that my negro woman Clara, and her child Ann Eliza, and Clara's increase, be given to Gabriel Hissosway, in trust to be sent to Africa to the colony at Liberia, provided the expense of sending them will be defrayed by the colonization…

THIS was an appeal from a judgment of the District Court of Elay Market, reversing a judgment of the County Court of Prince William.

Elisha White, on the 9th- of March, 1780, exhibited his bill in chancery to the county court of Charlotte, stating, That, in 1762, he purchased of Henry Hatcher a tract of 426 acres of land lying in that county, then Lunenburg.

In May 1831, Finch Cross and the other surviving children and a grandchild of John Cross deceased, filed their bill in the late Richmond… Held: that the slaves Jack, Robin and Celia, were subject to the limitations of the will of John Cross; and in the events which had happened, were the property of the plaintiffs; and accordingly decreed that the defendants Campbell and wife, out of the assets which had come to their hands, or to the hands of either of them, of the estate…

THIS was an action- of debt in the District Court of Williamsburg by John Barrett Co. assignees of Ernanuel Walker Ss? Co. who were assignees of Theodorick Bland, against Henry Tazewell, on a bond in the penalty oí ^ .... eighteen hundred pounds, dated March 13,1785, conditioned to be discharged by the payment of nine hundred pounds on or before December 25th, 1786, assigned to Emanuel Walher £s?

On the 4th of July, 1776, independence was declared; and, in consequence thereof, all natives of Great Britain, refusing to take the oath of fidelity, to the commonwealth, were obliged to leave the state.

In an action of detinue for a negro man slave named Phil, brought by Bird against Wilkinson, in the circuit court of Henrico, there was a special verdict stating the following case: John Lunsford, by bill of sale, executed on the 6th August 1822, conveyed the slave Phil, with two others, to Bird.

THIS was an action of assumpsit brought, on the 28th of January, 1799, by John Shelly against Walter Brooke's administrators in the County Court of Fairfax, for sundry articles of household furniture sold and delivered, and work done by the plaintiff for the intestate. Pleas “ non assumpsit “ by the intestate,” and “ non assumpsit by the same with» “ in five years next before the day of issuing the original “ writ j” on which pleas, issues were joined.

In December 1842, Simeon B. Wayland, with John T. Tucker and William P. Ford, became the sureties of James Ford to Thomas & Carpenter in a bond ^ upwards of 600 dollars. In June 1843, Wayland beiri§ indebted to Tucker, executed to him his bond for about 200 dollars. Afterwards, and during the same year, the principal and cosureties of Wayland became insolvent; and Tucker conveyed to a trustee all his property, debts, &c., to pay certain creditors.

Thomas Marshall and others, entered a caveat on the 17th of January, 1786, in the land office of Virginia, against George Rogers Clark, in the following words, “Let no grant issue to George Rogers Clark for 36,932 acres of land lying in Lincoln county on the south side of the Tenasee river, and on the Ohio, surveyed by virtue of an entry on treasury warrants; because Thomas Marshall, George Muter, Charles Dabney, John Montgomery, George Walls, Christopher Roane, Nathaniel…

THE appellants, upon motion, at the Fauquier County Court, in March, 1802, recovered a judgment against the appellee for 60/. 17s. 0d. 1-2. “ being the amount of assess- “ ments imposed on the defendant’s property in the town of , , . . . “ Alexandria, for paving the streets of said town, and for .. , . , „ , the town tax on said property, for the years 1799, 1800, “ aa Upon an appeal to the District Court held at Haymarket, this judgment was reversed, and the motion of the…

Carpenter and wife filed their bill in the Circuit Court of Madison for the purpose of setting aside the will of Daniel Utz deceased, which had been admitted to pro-bat in that Court.

. Kuhn suspecting that a slave belonging to Hoomes had robbed his store, at the Bowling Green, whipt him very severely. Hoomes, who lived about half a mile from the place, upon hearing of the whipping, went to the Bowling Green; and, after a short alteration with Kuhn, struck him : the latter returned the blow, and a fight ensued, in which Kuhn was much worsted.

NICHOLAS SYME assignee of John Lacy, Sheriff of New Kent County, brought in the County Court of York an action of debt against Corbin Griffin, surety for a certain John Webb in a prison bounds bond, dated the 12th of December 1788., The declaration set forth the bond with the condition thereof at large; and then proceeded thusAnd whereas “ the said John did depart and go out of the bounds assign- “ ed by the said Justices of New Kent, in the County of Ncvj “ Kent, contrary…

Adam Hocker died suddenly on the 4th of February 1847. He was an old man, uneducated, but of good understanding. At the March term of the County Court of Buckingham, his son, Robert K. Hocker, offered for probat a paper purporting to be the will of Adam Hocker deceased, duly executed and attested, and bearing date on the 26th of February 1836.

Foushee brought case, in the county court of Henrico, against Lea, who resided in Philadelphia, for not accepting a lease, for one year, of a house in the city of Richmond. At the first trial of the cause, John Banks was examined as a witness for the defendant; but, the jury disagreeing, no verdict was rendered.

By deed, dated the 25th June 1810, and duly recorded in the county court of Goochland in July following, John Marlcham conveyed to William Fleming, George Markham and Thomas Harris, a parcel of land in Goochland, and thirteen slaves and some other personal property, in trust—“ that they should make the utmost possible profits from the said estate, by cultivating the land or otherwise at their discretion, for the purpose of paying' all the said John Markham’s just debts, and…

Nancy Ayres and others brought ejectment in the Circuit Court of Bedford against John Ashwell. On the trial of the cause the defendant offered in evidence a paper as the deed of James Ayres, under whom both plaintiffs and defendant claimed. This paper commenced, “This Indenture,” &c., and was signed by James Ayres, with a scroll affixed to his name, but the scroll was not recognized as a seal either in the body of the instrument or in the attestation clause.

<p>1. If one of two coexecutors direct an appeal, writ of error, or supersedeas, originally granted to them both, to be dismissed, the other may proceed without him ; and since both are before the Court,anori/er of severance may he made without a mramam.</p> <p>2. In construing a will, the whole must betaken together, and no particular clause, or clauses selected.</p> <p>3. The word increase, (without the word future prefixed,) in the bequest of a female slave is ambiguous; and, if the intention of the testator in usi.ig it cannot he esc uM.uincd from the whole will taken together, parol evideuee id admissible to explain it»</p>

<p>^ jy- jan(j to an(j executed to him a bond with A and B as sureties, by which he bound himself to convey the land to H by a good deed with general warranty, and tó indemnify him against the title or claim of any other person to said land. M afterwards sold another part of the same tract to A. Afterwards a suit was brought by a prior mortgagee of the whole tract against A, to foreclose the mortgage, and under a decree in that suit, to which H was not a party, A paid off the mortgage debt. Pending the suit, A purchased of H his land. Held : The breach of the condition of M's bond has not been established so as to entitle A to proceed thereon for contribution to the satisfaction of the mortgage debt against his cosurety B; M being insolvent.</p> <p>2. A tract of land is subject to a mortgage; and the owner of the . land sells a part thereof, and conveys it with general warranty. He then sells the remainder of the tract. The part last sold is \ primarily liable for the satisfaction of the mortgage debt</p>

Carter Braxton exhibited a bill in chancery, in the county court of Henrico, against Willing & Morris, 1. For a settlement of some mercantile transactipns between them., after an attempt at adjustment, which had resulted in an agreement stating the principles upon which they should be settled. 2.

This was a suit in forma pauperis, brought in the county-court of Goochland, by Nicholas, a negro pauper, against Burruss, for the recovery of the plaintiff’s freedom. Held: that the law on the demurrer was for the plaintiff, and gave judgement that he was a free man. The defendant appealed to the circuit court, which reversed the judgement; and then the plaintiff appealed to this court.

THE record in this case stated that lames Moss, executor J of lames Moss, deceased, sued out of the Clerk’s office of ** Mince Edward District Court, a capias against Francis Moss, Stephen Moss, William Moss, Spiers, Richard Davenport and Peter Guerrant in a plea of debt for one thousand dollars, damage twenty dollars, returnable to -áprz'/ term, 1801; that the same was returned executed on the defendants Peter Guerrant and William Moss, a copy was left fop the defendant…

In 1834, Rice Morris, as the administrator de bonis non of Samuel Morris, filed his bill in the Circuit Court of Albemarle, against Beverley Staples, as the administrator with the will annexed of Tandy Morris, the sureties of the said Beverley and the distributees of Samuel Morris, in which he charged, that Tandy Morris, in his lifetime, had been the administrator of Samuel Morris, and that he had never settled his accounts as administrator; and he asked that Staples, the…

B. Davis administratrix of R. Davis deceased, having, in July 1806, sued out a writ of fieri facias, upon a judgement recovered by her in the county court of King William, against R. Madison and T. Butler, and this execution having been duly levied by the sheriff on the property of Madison, he with M. Lipscomb his surety, gave a forthcoming bond dated the 8th July 1806, payable to the administratrix, for the forthcoming and delivery of the property at the day and place…

Williamson, by his will in 1787, devised to his daughter Elizabeth Clements and her children, as follows : “I also give to my said daughter the interest of four thousand pounds in the government funds during her life, and after her death I give the interest of the above one fourth to each of my grand children Sarah Cocke, Elizabeth Clements, Prances Clements and John Clements, and at their decease the principal and interest to be disposed by them to their heirs in such…

This was a writ of error to a judgment of the general court; in which the Spotsyl-vania justices were plairitiffs against the executors of Claiborne,.who was security for Bernard Moore, as executor of John Spotswood. The ^declaration was in the form of a declaration upon a common money bond. Plea conditions performed.

There were four cases between these parties, on writs of supersedeas to judgements of the circuit court of Amherst, which being nearly alike in their circumstances, were argued , and considered together- Eubank and two others executed four bonds to Caleb Ralls, all dated the 20th December 1817, and all for the same penal sum of 1548 dollars, with condition, respectively, for the payment of 774 dollars, on or before the 1st day of March in the years 1818, 1819, 1820 and 1821.

THIS was an appeal from a judgment of the District Court of Petersburg, rendered in favour of the Mutual Asmranee Society, against James Currie, for 291 dollars .and 73 V’ e> ./ ’ emits, being the amount of a quota required from the defend- ° .... ant, (as one of the persons holding buildings in a town in-r.ured by the said society,) by a resolution adopted on the 25th of February, 1805, at a meeting of a board of directors of the said society; which resolution calling for…

This was an appeal from a judgement of the district court held at Hay Market, rendered in May 1808. The cause had remained in this court, neglected by the parties, ever since until this term. It was an action of trespass quare clausum, fregit, brought by Marsteller and wife and others against Coryell, for a trespass on a half acre lot of land in the town of Alexandria. The defendant pleaded the general issue.

Upon the trial of an action for slander, brought by Bayse against Rixey, in the circuit court of Culpeper, two bills of exceptions were filed by the defendant, to opinions of the court excluding evidence which he wished to adduce.

Cunningham & Co. filed a petition in the district court of Henrico, praying to be allowed to appeal from the judgment of the auditor of public accounts, who had rejected their claim against the commonwealth for the value of a vessel and cargo, which had been impressed, for the public service during the revolutionary war.

Assumpsit, by Keen against Elam, in the circuit court of Chesterfield, for money had and received by the defendant to the plaintiff’s use. Pleas, non assumpsit, and the statute of limitations. Verdict and judgement for the plaintiff, for 183 dollars, with interest &c. At the trial, the plaintiff gave in evidence the last will and testament of Elisha Keen deceased, whereby he devised and bequeathed his whole estate to his mother Elizabeth Keen; who was also his executrix.

Banks, as representative of Hunter, Banks & Co., and North & Co. respectively petitioned the district court (the first in 1796, and the second in 1794.) to be allowed to appeal from the refusal of the auditor of public accounts to admit their respective claims against the comtiionwealth for the value of some vessels and cargoes impressed into the service of the state by order of the executive early in the year 1781.

Dunlop &f Buchanan, surviving partners of Dunlop, Pollock Co. sued out a scire facias in July 1826, against Moseley the executor of Fleming, to revive a judgement, recovered in September 1810, by… Held: that it was not, and gave judgement for the plaintiff. The defendant appealed to this court.

<p>Slaves — Wrongfully Taken in Execution — Right of Owner to Injunction.* — In every case, In which the owner of slaves wrongfully taken in execution for the debt of another, applies to a court of equity to inhibit the sale of them, the court ought to award an injunction, and if the case be made out, to give relief, though it be neither alleged in the bill, nor proved, that the slaves have any peculiar value.</p>

Eppes exhibited his bill in the high court of chancery, against Tucker, stating, That Tucker, being owner of the schooner De-spatch, lying in Appomattox river, adjacent to the shore of Prince George county in Virginia, it was agreed between him and the plaintiff, that the latter should ship six hogsheads of tobacco, on board the schooner, to be transported to some port in Europe: One half of which said tobacco to be retained, by the defendant, for freight and risque; and the…

<p>Randolph Harrison and Samuel Jones exhibited a bill against Edward Sims and the sheriff of Buckingham, in the superiour court of chancery of Richmond,—setting forth, that sundry executions having been sued out on judgements against Charles Irving, and levied by the sheriff of Buckingham, on three negro girls the slaves of Irving, the plaintiffs purchased these slaves at their full value at the sheriff’s sale, and paid the money for them, and then left them on Irving’s plantation, for the convenience of his family (the slaves being favorite house servants) but they were at all times completely under the plaintiffs’ control. And that, afterwards, Sims, having sued out a fieri facias on a judgement against Irving, and delivered it to the sheriff, caused it to be levied on the same three slaves; and the sheriff had advertised them for sale to satisfy this execution. Therefore, the bill prayed an injunction to inhibit the sheriff from making such sale.</p> <p>The chancellor thinking that the plaintiffs’ proper remedy was an action at law, denied the injunction; but it was awarded by this court.</p> <p>Sims then put in his answer, objecting to the jurisdiction of the court of chancery to give relief in such a case ; and alleging, that the purchase of the slaves by the plaintiffs, was not made bona fide with their own money, but with money furnished by others for Irving’s benefit, and was a mere contrivance to protect Irving’s property from his creditors.</p> <p>The chancellor, still adhering to his first opinion, that the case stated in the bill was not proper for relief in equity; and, suggesting that the cases decided by the court of appeals, on like questions of jurisdiction, reported in 3 Randolph (alluding to the cases of Bowyer v. Creigh, 3 Rand. 25. and Allen v. Freeland, Id. 170.) had perhaps escaped the notice of the judges of the court of appeals, when the injunction in this case was awarded,—therefore, discharged the injunction, as having been improvidently awarded. From this order the plaintiffs appealed to this court.</p> <p>Upon the hearing of the appeal, this court said, that the chancellor was mistaken in supposing that the cases in 3rd Randolph on like questions, had escaped its attention; that though there had been some diversity of opinion, whether peculiar value of slave property ought not to be alleged in a bill praying relief in such cases, yet when that matter was alleged (as it was in this bill) an injunction to inhibit the sale of slaves unjustly taken in execution, ought to be awarded by a court of chancery, notwithstanding that the plaintiff might recover damages at law for the wrongful seizure of his property, or the property itself in an action of detinue ; and that, on a review of all the cases on the point, it had been determined by a full court, in Randolph v. Randolph, 6 Rand. 194. that, in every case in which the owner of slaves wrongfully taken under execution, applies to a court of equity to inhibit the sale of them, the court ought to award an injunction, and, if the case be made out, to give relief, though it be neither alleged in the bill, nor proved, that the slaves have any peculiar value. Therefore, the court sustaining the jurisdiction of the court of chancery in the present case, reversed the order dissolving the injunction, ordered the injunction to be reinstated, and to stand till the hearing, and remanded the cause.</p>

On the 27th of November 1800, Thomas Chinnsen’r of Loudoun county, conveyed to his son Hugh Chinn in fee with general warranty, a tract… Held: that the land conveyed to Hugh Chinn was an advancement of real estate, for which he must account as of the value at the death of Thomas Chinn sen’r: That Robert Chinn was to be charged with £ 400 as an advancement, that being the amount received by him for the land conveyed to him by the deed of 1802, over the £ 500 he had paid to…

Upon a bill in the superiour court of chancery of Fredericksburg, exhibited by James Beck in his lifetime, and upon his death pending the suit revived by his administratrix, against Benjamin, John, William and Edward JDe Baptist, Joshua Long, Thomas Adams and Emanuel Head, the case appearing by the pleadings and proofs, was thus : By articles of agreement between Emanuel Head and Benjamin De Baptist dated the 19th August 1818, Head contracted to sell and convey part of a lot…

<p>Chancery^ to set aside an award on the ground of a mistake of the _ t arbitrators, the defendant by his answer consenting that the award may be opened, and an account taken{jj the complainants chonse) from the beginning,, but, at any rate, as to certain particulars specified by himself; he is hound to abide by a statement thereupon made by a Commissioner of the Court, refusing to open the account (on his motion) from the beginning, and professing only to correct the mistake alleged by the complainants (notwithstanding such mi'.take he not proved independently of the report of the Commissioners ;) no -evidence having been offered by the said defendant as to the, particulars specified by him, and no objection to such report appealing, except that the acemint was not opened from the beginning. ■</p> <p>interest on. a *e decree1 of eOTrtofChaneel'y> pending an appeal f,’om tha* de" cree, such apPeaI having been taken before the act of 1803, was not allowed, not-the* case \>f Deans y, Scvi* ¡,a.‘</p>

The overseers of the poor, on the 3d of June, 1790, made a motion, in the county court of Hanover, for judgment against “William O. Winston, gent., late sheriff of the said county,” for the amount of money levied for the maintenance of the poor of the said county, for the year 1787.

<p>Equity Practice — Postponement of Original Cause-Discretion. — whether the court of chancery should postpone the original cause, until the cross suit is ready, that both may be heard together, is discretionary :</p> <p>Same — Same—Same.—And the discretion is to be exercised as circumstances may require for the attainment of justice.</p> <p>Same — Same—Same.—Affected delay in preparing the cross suit for a hearing, would be a just cause for proceeding to hear the original bill.</p> <p>Same — Suits between Same Parties — Hearing Together. —Suits, between different parties claiming the same property, will be heard together, to avoid decrees that might clash with each other.</p>

William Fowler, and Susanna his wife, filed their bill in the high court of chancery, stating, That Alexander Saunders was the former husband of the plaintiff Susanna ; and that Thomas Sale, her father, made his will on the 4th of December, 1789, and devised as follows: 1 ‘I lend unto my daughter Susanna Saunders and her husband.

In two actions, one of debt and the other of assumpsit, brought by Yancey against May, in the hustings court of Richmond, the parties (after a very long and tedious litigation) agreed to refer the controversy to arbitrators; and rules were entered by consent in both suits, at November term 1829, submitting the matters in difference between them in the two cases, to the final determination of Samuel Dunn and Preston Smith, whose award (or the award of their umpire in case of…

<p>THIS was an appeal from a decree of the Superior Court of Chancery, held at Williamsbugh, pronounced on the 9th of April, 1803.</p> <p>Brickhouse brought an action of account render, against Isaac Smith, one of the partners of Hunter, Banks 3 Co. and obtained a judgment for an account. In pursu- • it i anee of which) auditors were appointed by the Court; and) at a subsequent day) at the instance and on the motion of the parties, three other auditors were added to the former number, and any three of the whole, were directed to examine, state and settle all accounts between the-parties, which was accordingly done; and, nor exception being taken to their report or proceedings, final judgment was rendered pursuant thereunto, in fa-' vqur of Brickhouse.</p> <p>To this judgment, Hunter, Banks £s? Co. preferred a bill of injunction to the Judge of the High Court of Chancery, who awarded the injunction. The accounts were referred to a Commissioner of the Court, who made a report which, on exceptions taken to it, was recommitted by the Court to the Commissioner, who made a second report, assigning reasons in support of the former, by which he had reported 118/, 9s. Id. 3-4 to be paid to Hunter, Banks Co. with the. addition of SOI. paid by Isaac Smith on account of the judgment at law, the voucher for which had not before been produced j making in all 108/. 9s. 7d. 3-4. On the 29th of May, 1800, the Commissioner certifies, that the parties appeared by consent at his office, and agreed, that if any supplemental report appeared necessary, it might be madg. But the Commissioner declined making any j ,after which, (as is presumablej) by consent of the parties, all matters in difference between them in that suit, were referred to the final determination of Thomas Newton and William Pennock, whose award, or that of an- umpire to be chosen by them, was to be made the final decree of the court. They made a report, declaring that they had examined the accounts between the parties, and could find no cause to disagree with the Commissioner in his report. “ Submitting, however, to the ' decision of “ the Court, the necessity of Hunter, Banks &? Go. pro- “ ducing .vouchers to certain charges, (amounting to “ 133/. 9i.) objected to by Brickhouse(before the-Commissioner.) They add, having considered the, situation of the times (1781 to 1783, during the American war) when much of the business was done, they, conceive it was not possible to obtain receipts, as, in rrumy instances. advances were made on the sea-shore roads, &c. for the safety of removing goods; in which case only, memorandums of the advances could be made. Under which circumstances, they consider the Commissioner’s report , . , . . to be as just as the times or transacting the business would admit of, which they submit to the Court.</p> <p>The Chancellor of the Williamsburgh district, to which the cause had. been removed, being of opinion that, Brickhouse being a partner, and having a right to inspect the books of Hunter, Banks & Co. they were admissible evidence ; and concurring in opinion with the arbitrators, that, from the circumstances of the country, it would have been impossible to produce vouchers for every item in the accounts, decreed according to their report; from which decree an appeal was taken to this Court.</p>

Halcomb filed a bill in chancery, against the attorney general and others, stating that he had been sheriff and collector of the revenue and certificate taxes of Prince Edward county, for the years 1784, 178S: and that the solicitor general had obtained four judgments against him, viz. Two for the revenue and certificate taxes of 1784, and two for those of 178S. That the plaintiff has made payments nearly sufficient to discharge the judgments, if a mistake in one of the…

The appellant had instituted an action on the case in the general court against the appellee to recover from him the amount of a judgment obtained by the plaintiff against a certain Parke Smith. Smith, when taken on mesne process, could not give bail; and the return of the sheriff was, “Executed January 23d, 1775, and committed to the gaol of this county.” The judgment was by- default, and the declaration charged the hig-h sheriff with a negligent escape.

<p>a discovery, ut^hw* of*1 ^i,Tch7'-wiA* orc!marn <*'£- gen.ee, the party might have known and obtained in a sufficient Court of Equia</p>

This was an appeal from the district court of Charlottesville; and the only question was, Whether the plea of payment should conclude to the country?

<p>A houso is insured against fire, as being leasehold property, held for a term of 99 years renewable forever; it was, in fact, held by the assured in fee simple; after the death of the assured, it is destroyed by fire: IIeud, the money due for the loss belonged to the heirs of the assured, and his administrator having received it, the sureties of the administrator are not responsible for it.</p>

<p>Admiralty Courts — Dissolution—State District Courts. —The state district courts were bound to execute the sentences of the court of appeals, reversing' those of the court of admiralty, after the dissolution of the latter court.</p>

William, Covington late of Chesterfield, died intestate, seized of a mill and mill seat on Swift creek, and some other real estate, in that county, and leaving six children his heirs at law.

This was a contest about the existence of a public road; and the record exhibits the following facts: On the ISth of January, 1800, Clarke obtained an order of the county court of Powhatan, appointing a surveyor of the road, “through Daniel Mayo’s plantation to Mayo’s mill.” Mayo petitioned the district court for a writ of supersedeas to that order; which was refused. The court of appeals reversed the order of refusal, and directed that the writ should issue.

<p>fiiéd^m^sTip5 jort of a bill-(there being no proof of no-to^beSconsítimonyln ufé cause, unless it appear in thereeordtbat read either by consentofparties, or with-. wheTsucT^op1-have'0beeuht Ula<ie’</p> <p>appears1'tlíat defendants, against whom a decree is entered, had an-moored the bill, or stood out process of SrevfévMnáy be filed on the ground of ervm upon the 'fcree.hede</p> <p>s.I„adecree fnntóSt time venU them fo make objectious after attaining their full age.</p> <p>4. If a bachelor; seised in fee of lands, prior tothe year 1700, contracted to sell them, received part or the. whole of the purchase-money, delivered possession to the purchaser without making a deed, and, having afterwards married, died in. 1797; qmere^ whether his widow (having hiid notice before the marriage of the purchaser’s possession) is entitled, to dower of such lands ? . , . 1 . . ..</p>

Daniel Boardman entered a caveat in the land office, against the issuing of a grant to Jacob Hardman for 150 acres of land lying in the county of Lewis, upon a… Held: that Boardman had better right to such part of the land included within Hardman’s survey as was included within the survey and grant under which Boardman claimed ; and, therefore, adjudged, that no grant should issue to Hardman for so much of the land included in his survey as belonged of right to Boardman.

During the revolutionary war, the American armies consisted partly of troops raised for the continental service expressly, and partly of troops raised by particular states, for the proper defence of the state. By an act of assembly passed at the Ma3 session, 1779, Virginia raised a body of troops of the latter kind, 10 Hen.

<p>THIS was an appeal from a decree of the Superior Court of Chancery for the Staunton district, reversing a decree of the County Court of Rockingham.</p> <p>Layton Tancey obtained an injunction from the County Court of Rockingham, to be relieved from a judgment at law, recovered against him in that Court, by Lewis. The material facts were these: Lewis sold to Yancey a tract of land, with general warranty, by certain metes and hounds, which were thought to be the true boundaríes by both parties. They had long been in treaty for the land; a considerable degree of anxiety was manifested by Yancey to possess it; I.ewis always wishing to sell by the acre, and Yancey to purchase in gross. At length a bargain was concluded, by which Yancey was to pay Lewis 500/. for the land included within certain specified lines, without mentioning the quantity, or the price, per acre. All the payments were made except the last; when Yancey filed a bill to be relieved from a judgment recovered for the sum due, on the ground, that about one hundred acres of the land within the specified boundaries, were waste and unappropriated; that an entry had been made by John Yancey, a brother of the complainant, and a grant obtained ; but that grant was not produced, neither was there any proof of an actual eviction, nor of a superior title to that of Lewis, in any other person, though it was alleged that it existed.</p> <p>It is neither charged in the bill, nor is there any evidence of fraud or concealment on the part of Lewis. He appears to have been ignorant that the title was incomplete j the papers concerning which were returned to the register’s office before his father’s death, though the time for the emanation of a patent had not elapsed. Yancey had married his sister, was left executor of his father’s estate, and guardian to the infant children, of whom Lewis was one. The laud in controversy was devised to Lewis, by the will of his father; and, as he states in his answer, Yancey, from his relation to the family, and his agency in the affairs of the estate, was better acquainted with, the title papers than he was, and actually commenced the treaty for the purchase of it, before he was of age. Tan oafs anxiety to possess the-land was so great, that when Lewis was only about seventeen or eighteen years old, he made application to him, to promise and engage to sell him the land when he should attain his full age, using many powerful arguments to induce him to do it; such as having lent him {Lewis) money during his minority, which would have been lost had he died under age; and, finally, that unless he {Tancey) could get the land, he should be compelled to remove, with the sister of Lewis, to some other part of the country; his tract of land being too small for the accommodation of his family.</p> <p>Various circumstances were relied on by the appellee, (to prove that Tancey had, or ought to have had, a more accurate knowledge of the situation and boundaries of the land than the appellee himself possessed,) which are minutely detailed in the opinion of Judge Tucker, and therefore need not be repeated.</p> <p>The County Court of Rockingham perpetuated the injunction ; but on an appeal taken by Lewis, to the Superior Court of Chancery for the Staunton district, it was dissolved, and the bill dismissed: whereupon Tancey appealed to this Court.</p>

Debt on bond with collateral condition, in the county court of Campbell, brought by Crenshaw's administrator against Arthur surviving obligor of one Calloway and himself.

<p>THIS case was argued at February term, and the _ , . . , Court took time to consider of it. Early m this term It was decided, and the bill dismissed. In the month of May last, the plaintiffs obtained a commission from the clerk, to take depositions, and since the decree was pronounced, two depositions have been taken, and Mr. ... . . Taylor, counsel for the plaintiffs, m accounting for this . .. testimony, and m speaking or the advice he had given to his clients before the last term, said, “ exertions to “ find witnesses who could prove Herbert Claiborne's “ agency for Harrison, were immediately used, and, just “ as they were believed to be unavailing, accident threw w one of my clients, at a horse-race, in the way of the u witness, whose deposition has been recently taken j’5 whereupon the plaintiffs moved to set aside the decree, and to continue the cause, until the. next term.</p>

<p>A cause may hereheardyUp* on a petition presented he-fore the term which the firo,i decree was pronounafterwards'104</p>

<p>In what manner' a scire facias to revive a suit in Chancery'must be served»</p>

Assumpsit for breach of contract, by Baniels against Conrad, in the circuit court of Pendleton.

<p>UPON calling this case, Mr. Wickham stated that he had an objection to make to the reading of some of the depositions taken without due notice. To this Mr. Randolph (in favour of whose client the depositions objected to had been taken) said, the objection came too late, as he understood the rule of the Court. Mr. Wick-ham replied that the depositions had been taken under a commission issued since the cause was set for hearing; and that, under the rule of the Court, exceptions to the reading of such depositions may be made at any time before the hearing of the cause, (a)</p>

Thomas Scott, ou the 27th of October, 1773, being indebted to Field & Call in a large sum; and being desirous *of borrowing money to satisfy the demand, applied to doctor James Field, (who supposed he had money in Scotland,) requesting a loan, to the amount of the debt due to Field & Call.

<p>IN this case, at June term, 1808, the Commissioner appointed by the decree of this Court to make sale of the mortgaged land in the bill mentioned, (which decree ^ore date on the 27th day of February, 1808,) made a report that he had advertised the same, and, on the day x appointed for the'sale thereof, the Commissioners for rr ' the city of Richmond (where the land lay) attended, agreeably to the act of the general assembly, entitled, “ an act concerning the sale of property under executions “ an<i encumbrances,” (which passed on the 1st of Fe~ ¿ruarl, and took effect on the 1st of March, 1808,) and J? ■ valued the same to two thousand pounds. That the plaintiff bid three thousand dollars only ; and, whether this sum was sufficient to entitle the plaintiff to the property under, the provisions of the said act, or not, was what the Commissioner declined to determine, and, by . 7 . Jxis report, submitted to the decision o,f the Court. x</p>

IN March, 1805, a decree was pronounced in this case. The defendant was out of the Commonwealth at that time ; and, of course, under the 4th section of the act directing the method of proceeding against absent defendants, (1 Rev. Code, p. 115.) he was entitled to the term of $even years to appear and petition for a rehearing.

IN this case, the defendant had issued an 'execution against the body of the plaintiff, upon a decree of this Court, directed to the sheriff of-, and it was' duly retul'ned executed by the serjeant of the city of Richmond. And now Mr Warden, on behalf of the plaintiff, moved to quash the execution and the return, because the execution w;as executed by an officer to whom it was not directed.

IT was stated by Mr. Wickham, that the claim in this , , , . , , x ease was a stale one; that the suit was brought against the defendant as executor; and that the facts were not alleged to be within his knowledge; and on that account he moved to amend his answer, by stating’ the ground of defence more at large ; to which Mr. Randolph objected ; and the question was submitted.

On the 27th of February 1834, William H. Triplett, by a contract under seal, sold to Jonathan Carter a tract of land in the county of Loudoun, containing about one hundred and sixty-six acres, at 18 dollars per acre: and put him in possession thereof.

<p>After a cause has been argued, a commit* sion to take depositions cannot he obtained but upon ihe affidavit of the parí y, apd by special order Of the Court for that pnrpose.</p>

This was an appeal from a decree of the superiour court of chancery of Williamsburg, in a suit between J. A. Chandler administrator of Joseph Godwin deceased, who had been administrator of Edmond Godwin deceased, and Martha Godwin widow of Edmond, and administratrix de bonis non of his estate, and others his distributees; which involved a settlement of Joseph Godwin’s accounts of administration of the estate of Edmond Godwin, and a distribution of any balance found due…

<p>Ruks of pracj. in what manner suits are' to fee re» Vi!S&‘</p> <p>2. An order must be exeiif months!'11'</p>

Power brought debt, against Finnie and Tabb, upon a bill of exchange drawn by Finnie on Colin, Dunlop & Son of Glasgow, payable to Tabb or order, and by him endorsed in these words: “Pay the within contents to Jack Power only.” Plea nil debet, and issue.

THE bill stated, that William Taylor, on the 3d October, 1794, made his last will and testament, and died in a few days thereafter; that he left a wife, Susanna Taylor, and four sons, besides one in the womb who was born alive ; that having made provision for one of his sons and his, wife for life, he devised, at her death, one half of his land and marsh to his son Beverly Claiborne Taylor and to his heirs, and then proceeded in these words : “ and the negroes, furniture,…

THE counsel for the plaintiff stated that the plain- , . ' ‘ * tiff was dead, and submitted to • the Court, whether, as some of the defendants live out of the Commonwealth, in the name of the plaintiff’s executor, against them, to review, he necessary.

<p>In replevin, defendant makes avowry for rent due him from plaintiff, and then plaintiff failing to appear and plead, is non-suit: Held,</p> <p>1. It is proper, in such case, to award a >vrit of inquiry to ascertain avow-ant’s damages, under the 23rd section of the general statute of rents, 1 Rev. Code, ch. 113.</p> <p>2. In such case, too, the avowry is to be considered as only a suggestion, and though it be faulty as an avowry, in not shewing the landlord’s title, yet as a suggestion, it is good and sufficient.</p> <p>3. In such case, moreover, the statute of jeofails would be applicable" to cure all defects in the avowry.</p> <p>In general, the statute of jeofails is not applicable in case of a judgement by default for want of appearance; but if the party has once appeared, though he makes default afterwards, and then there is judgement against him by such default, the statute of jeofails is applicable.</p>

<p>if an answer u^entovscaL íwm'be'íeCommission^ er to expunge such matter, af the costs of the ;party filing the an-?we<’</p>

THESE were cross suits in equity, for the settlement of Miller’s accounts, as trustee of Robert G. Beverley. By the deed which created the trust, three joint trustees, with the right ot survivorship, were appointed; and first by the incompetency of one, and then by the death of another, the whole subject devolved upon Miller. These cases were ably discussed at the bar, and these points submitted to the Court; * . 1.

Marquess filed a bill in the high court of chancery against Grigsby, Hooe and Bruce, stating that, in 1782, the plaintiff purchased of the defendant, Mott Grigsby, a tract of ninety acres of land, and took a deed; which was proved in court by two witnesses, and lodged for further proof.

In June 1836, Joseph Turner sued out an attachment against William P. Wyche as an absconding debtor, which was levied on five slaves. On the return of the attachment to the Hustings Court of Petersburg, Henry Davis interpleaded in the case, and claimed the slaves as his property. The facts were, that in May previous to the levy of the attachment, Davis, who was a dealer in slaves, purchased the slaves of Wyche for 4700 dollars, and paid him the money.

THE bill in this case was' brought to be relieved against part of a judgment obtained at law on a bond, executed in August, 1797, on account of some payments admitted to have been made, posterior to the said bond, but before the judgment, without even stating a reason why the defendant did not defend himself at law.

•THIS was a motion for an injunction' to stay the execution of a judgment on behalf-of the Commonwealth against Morgan Tompkies, late-Sheriff of Gloucester. county, upon the-ground; that he. had mortgaged to the plaintiffs, several of the negroes in his possession to Sir cure to Jennings $997, and $966, and to Robinson $1,000. • The-deed to the former was dated Sept. 1, 1808, and attested by three witnesses.

Rogers brothers recovered a judgement against Lane, for 745 dollars with interest and costs, in the county court of Frederick, at August term 1823, and sued out a capias ad satisfaciendum thereon, in October, returnable December, following.

THE principal question in this case was, whether . . notice given to the overseer of the defendant, who lived about half the year in, and the other half out of the state, ’ -i --Í « . • ' t to take depositions, was good, ’ . '

THE bill in this case was brought to he relieyed against a judgment at law, obtained under these circumstances : that the plaintiff had no knowledge of the existence of the suit at law, until after the judgment was obtained ; and be presumed that when the writ was served upon him, it was understood to be a process in a suit in Chancery, which had been brought, as he supposed, to subject his wards, but which he found had been dismissed.

<p>- COMMISSIONER Parke, at Fredericksburg, made . . . , , . , , a report m this.case, by which he submitted this questión, whether an executor’s account, settled ex parte and notice, by order of a County Court," should be consi4ered by him as a final settlement or not.</p>

In 1760, Nathaniel Chapman died intestate in the state of Maryland. He left a widow (who besides her legal interest in his estate, possessed, in her own right, lands and slaves of considerable value), three sons, Nathaniel, Pearson and George; and several daughters.

<p>THE principal question in this case was, whether a sale of a tract of land, made by the plaintiff* agreeably to the will of his testator, was Valid, as the plaintiff himself became the purchaser.</p>

THE defendant was an administrator, and the report of the Commissioner was against him in favour of the legatees, and the question submitted to the Court was as to the costs.

<p>THE principal point in this case was, as to the mode of adjusting interest,</p>

THE plaintiffs consigned a parcel of goods to the defendants Dodge and Cobb, to be sold upon commission ; they pawned a part to the defendants Prosser and Mon-cure, vendue masters ; and, failing, conveyed all their own goods and effects to the other defendants Marshall and Kimball, in trust, for their creditors; and delivered the remaining goods of the plaintiffs to the trustees, and they were sold as well as the goods pawned.

THE bill in this case was filed to foreclose á mortgage, dated October, 1774, and the Commissioners to whom the accounts were referred, had reported a balance due thereupon of 609/. 17s. 3d. on the 14th September, 1775, with interest from that time till paid, upon which this Court, in September, 1793, decreed that unless that suin, with the interest upon that part thereof which was. principal money, and the costs, (deducting the amount? of a bond of 801. payable 1st October,…

THE bill in this case was filed for a division of some lands in the county of Buckingham, and the Commissioners who acted, claimed an allowance for their services.

THE plaintiffs were bail for one Timberlake ads. Gray, who obtained judgments at law against them; and Timberlake, to indemnify the plaintiffs, mortgaged several negroes ; but the deed was admitted to record in Caroline County Court, upon the proof of two witnesses only.

Patillo exhibited a bill in the county court of Charlotte in chancery, at November term 1820, alleging, that he had employed Lee, a carpenter, to build him a house of particular dimensions, and to do some other carpenter’s work for him : that after the work was co'mpleted, Patillo, thinking Lee’s bills unreasonably high, refused to pay them, but agreed with him to submit the prices of the work to Degraffenreidt and Tisdale, or in case of disagreement their umpire : that the…

THESE were cross bills for the settlement and division of the estate of the testator. The executor had been ordered to account before certain Commissioners, which he had failed to do, and an attachment had been ordered against him. The attachment was returned executed; but the executor was going at large, and now came into Court and moved to discharge the attachment; and the plaintiffs in the first suit submitted to the Court the course to be taken.

<p>A party who pleaded 'moh, an actíorT at and wild merely wrote fro» relief in to counsel to defend hi», is guilty of such neglect as -will preclude h «f'dty.</p>

A MOTION was made by Mr. Botts, to set aside the 3 r , , decree of the last Court as to one of the defendants who was then dead, as now proved by an affidavit; and to fiie the answer of another defendant against whom there w*as a decree, as being out of the country.

<p>THE object of this suit was to attach the effects of the defendant Jenny, as an absent debtor, in the hands of the other defendants, and notice to that effect was endorsed on the subpoena, which was returnable on the 17th day of this term : and now Mr. Wirt moved for an order to restrain the home defendants from parting with the effects of the absent defendant, until the further order of the Court; and for an order of publication against the absent defendants.</p>

In 1795, Adam Hunter and Patrick Home, as executors and devisees of James Hunter, deceased, and James Hunter, another of the devisees of the said James Hunter, deceased, petitioned the county court of Stafford for leave to build a mill “on their own land, lying on the waters of the Rappahannock, and to build a dam to abut upon a rock within fifty yards from the north side of said river, the said fifty yards being either the property of the said devisees, or of the…

THIS was a motion by Mr. Randolph for a subpoena, to summon a witness to give viva voce evidence to some fact upon the hearing.

ON an appeal. The appellee had a judgment in Amelia County Court for l,220lb. of tobacco, with interest and-costs against one Sturgin, and to recover which, as the said Sturgin had removed out of the Commonwealth, the appellee filed his bill in Chancery in the County Court of 1 # v J Prince Edward, stating that the testator of the appellants was indebted to the said Sturgin in the sum of 45/. and prayed for an attachment, and the usual order was made in Court, and endorsed…

THESE suits were brought to subject lands in posses-ion of heirs, to the payment of their ancestor’s debts,and now the counsel for the plaintiff moved for decrees to sell the lands.

IN this case these questions occurred: 1. Whether a A convevance by two of three executors, all of whom had ' . qualified and were living, (the testator having directed the , ' , , , , , . sale and conveyance to be made by /its executors, m general terms,) was valid in law ? 2. If it was not, could it be aided in equity? and, 3. If it could not, did the purchase-money, if paid, create a lien on the land, which would subject it in equity to the repayment of the money ?

IN 180o this suit abated as to Charles Patterson, one of the principal defendants, and there was ail order of publicátioií against bis representatives who lived in Kentucky, in March, 1807. In September following, there was an additional order for an account.

THE bill in this case was filed to assist the plaintiff in executing his process of execution, which had been levied on some tobacco of the defendant Randolphs, in one of the public warehouses, as there appeared to be a well founded apprehension, that he might demand his notes for the same, of the inspectors, who by law would be compelled to deliver them ; and, therefore, an injunction for their indemnity was awarded, upon the condition that the plaintiff would consent to a…

THE report in this case (which was a bill brought for an account) was in favour of the defendant, against whom a verdict and judgment had been rendered at law, in an action brought by him against the plaintiff, and the questions submitted to the Court were, 1. What should be the effect of the rule where, at law, or in equity, you take an account of one of the parties as evidence against him; and, 2.

THE bill in this case was brought to recover damages on account of a contract respecting some tobacco, and to have an account of eight hogsheads, which account was, at a former hearing, directed, and the bill as to the damages thereby claimed, dismissed.

<p>is^set6 down for argument, the cause must be put on the Court .docket.</p>

THIS suit had been dismissed after an order for an account. The plaintiff, nevertheless, went on with his account, - 11 i and got a report made out and returned, and then moved for and obtained the reinstatement of this cause, which now came on to be heard.

<p>New Trial* — Newly-Discovered Evidence — Failure to Apply for Continuance. — If a party believes lie can procure other testimony, be should move for a continuance of the cause; and not wait until there is a verdict against him, and then bring it forward as ground for a new trial, after having taken his chance with the ]ury.</p>

THE question submitted to the Court, in this case, was, whether the decree, which was for the sale of some lands belonging to infants, to pay debts, should allow to them any time, after they came of age, to shew cause against it, as Commissioners were to conduct it.

THIS was a motion to dissolve the injunction, in this Case’ uPon ^le coming in of the account which had been directed, and to which there were exceptions now put . . _1 r m ior the first time; and tne vouchers which had been exhibited before the Commissioners were called for.

THE bill in this case was filed to recover some personal property in right of the wife, which she derived from her son, who died intestate, in April, 1787 ; her husband, the plaintiff, died, and then she died, and the suit was reyived upon the abatement thereof, in the name of his administrator. To this bill there was a demurrer.

<p>Practice, pillees411'took theSeproperty heionging to tile int.esi«,ic of the appeilant, pending the suit.</p>

Tabb as son, heir and administrator de bonis non, of John Tabb, brought a suit-in chancery in the county court of Mecklen-burg against Eerrel and wife, executors of Noah Dortch, and Alexander Boyd acting executor of Richard Swepston deceased. The bill states, that, in July 1775, the said John Tabb died intestate, leaving Mary Tabb his widow, who, with Dortch, took administration on his estate. That Dortch died in 1781.

THE plaintiff was a member of a mercantile house in die County of Cumberland, trading under the firm of Good-J . rich) Lee& Co. and in May, 1801, they came to an agree- . . , , r , ment to continue m partnership until the ena oi that year, and then to be dissolved, which was publicly known in that part of the country. Goodrich and the other partner An-Person, then formed a new company, which was known by . J the name of John B. Goodrich £s?

<p>3. The iiS' sign ee oí" a bond or note is not bound to sue the maker, if he be notoriously insolvent, before he can resort to the assignor.</p> <p>2. If a party prosecute his action at law, and there he a decision of an inferior Court against him, from which lie takes an appeal, but does not prosecute it, he cannot come into equity for relief, on the same subject matter.</p> <p>How far a judgment at aw is a bar to udgment was a subsequent suit at lav or in equity, against the party in vhose favour such ¿'endeml.</p>

IN this case it appeared, that Nathaniel West Dandridge had mortgaged 618 acres of land, whereon he lived, in which his widow, the wife of Underwood, hada life estate, and William Dandridge the remainder in fee; and that die same Was sold under a decree of the Federal Court, to satisfy the mortgage, for '401 dollars and 91 cents, on tile 14th September, 1802, and purchased in by the said Underwood: and the principal question was, as to the proportion of the 40Í dollars and…

THE plaintiff was both heir and administrator of the same intestate, and, in the latter character, brought his bill to be relieved against several judgments at law. The case was upon a former hearing referred to one of the Commissioners of the Court, and he reported that the plaintiff had, out of the personal assets, paid some of the bond creditors, and was in possession of real assets to a much greater amount.

IN these cases, on motion of the plaintiffs respectively, by counsel, for a rule in the former case,,on the deputy-sheriff of Poxvhatan County, and in the latter case on the deputy-sheriff of Albemarle County, to shew cause, at the next term, why they should not be severally attached for not executing and returning, in due time, the process of this Court, which had been delivered to them for that purpose.

Swan and M’Rae filed a bill in the high court bf chancery, against Walcott, Smyth and the register of the land office, stating, that, upon the 21st of July, 1795, Smyth contracted with M’Rae (who had engaged to procure lands for Swan) to locate 300,000 acres in a certain tract of country lying in the county of Russel.

THE plaintiff, bv counsel, moved for a rule upon the ,sr J Justices of the County Court of Oransre, where the causes V f , were depending, to shew cause, at the next term, why a mandamus should not go commanding them to hear and decide upon the rights of the parties therein; alleging that j-ftg sa}¿ County Court had refused to do so, and that their refusal had been so often repeated, that it amounted to a1 denial of justice.

<p>This was a scire facias, sued out by Cloud against the executor of Catlett, upon a recognizance of special bail entered into by Catlett in his lifetime, for one Lehew, in an action of detinue brought by Cloud against Lehew in the circuit court of Shenandoah.</p> <p>The scire facias—reciting that D. Cloud, at a circuit court held for the county of Shenandoah on the 27th April 1826, by the judgement of the court, had recovered against S. Lehew certain chattels [specifying them] of the aggregate value of 750 dollars, if they might be had, if not, then the value of them aforesaid, and 14 dollars for his costs &tc. whereof the said Lehew was convict as appeared of record, execution of which judgement still remained to be made; and that, before M. E. a justice of the peace of Shenandoah, J. Catlett “ personally appeared, and undertook for the said S. Lehew, that in case he should be cast in the said suit, he the said S. Lehew would restore the aforesaid property or the alternative value thereof, or pay and satisfy the condemnation of the court, or render his body in prison in execution for the same, or that he the said J. Catlett would do it for him,” as appeared by the recognizance filed in the said suit; and that the said Lehew had not restored the chattels aforesaid to the said Cloud, nor paid him the aforesaid value and costs, nor rendered his body to prison, nor the said J. Catlett for him; and that the said J. Catlett, since entering into the recognizance, had died, and A. Catlett was his executor—therefore, commanded the sheriff to make known to the executor, that he should be at the clerk’s office of the said circuit court, at the rules there to be held, on &c. to shew cause why Cloud should not have execution against the estate of the bail in the hands of his executor, of the said judgement, according to the form and effect of the recognizance &c.</p> <p>The defendant appeared and craved oyer of the recognizance in the scire facias mentioned; which being read to him, he demurred, and the plaintiff joined in the demurrer; the entry of the demurrer and joinder in the record, being in these words—“ And the said defendant demurs generally, in which the plaintiff joins.”</p> <p>The recognizance set out on oyer was as follows : “ Memorandum, that upon the 17th May 1824, J. Catlett, of the county &c. personally appeared before me M. E. a justice of the peace &c. and undertook for $. Lehew, at the suit of 1). Cloud, in an action of detinue now depending in the circuit court of Shenandoah for certain chattels [specifying them] of the [aggregate] value of 1300 dollars, that, in case the said S. Lehew shall be cast in the said suit, he the said S. Lehew will restore the aforesaid property or the alternative value thereof, or pay and satisfy the condemnation of the court, or render his body in prison in execution for the same, or that he the said J. Catlett will do it for him” &c.</p> <p>The circuit court held, that the' law upon the demurrer was for the defendant, and gave judgement for him; to which this court, on the petition of the plaintiff, allowed a supersedeas.</p>

THE bill in this case was brought to be relieved against a usurious contract, covered by two deeds of trust, which the trustee was about to carry into effect by making a sale of the property thereby conveyed'; praying a discovery of the usury, and for an injunction to stop the sale, which was awarded.

THE plaintiff in an action of detinue, recovered of the defendant Biggars, seven negroes by name, and SQL damages and costs ; from which there was an appeal, which went to the Court of Appeals, where the judgment of the Court-below was affirmed: to enforce which the plaintiff issued a distringas ca, sa. directed to the sheriff of Prince Edward County.

. William Mayo, as heir at law of Joseph Mayo, brought ejectment against Paul Car-rington and others, for a tract of land in Mecklenburg county; and, by a case agreed, it appeared, that the said Joseph Mayo, by ■his will, made the 27th of May, 1780, and proved th.e 10th of October, 1785, after ■ sundry specific devises of lands and chattels, proceeded *as follows, “It ■' is my most earnest request, that the gentlemen who shall- be named and appointed executors of this my…

Paschal Fowlkes, late of the county of Nottoway, died in December 1828, old, unmarried, and possessed of a considerable estate, both real and personal. In the same year in which he died he placed in the hands of E. T. Jeffress & Co. several bonds, which he assigned to them, and which they were to collect for him on certain specified terms. A small portion of these bonds was collected in his lifetime.

This was an action on the case for deceit in the sale of a slave, brought by White against Rice, in April 1826, in the circuit court of Halifax.

THE defendant was the owner of a grist mill on South- ... , anna river in Hanover County, and the plaintiff applied to, the Court of that County in 1893, for leave to build a mill 011 the same river, above the defendant’s ; and the defendant applied for leave to raise his dam; and while their applications were depending, the defendant raised his dam two . . w feet, to the prejudice of the plaintiff, who filed this bill, in , ’ , 1 , , , 1 which he stated, that the water was…

IN this cese, the only question made at the bar was, whether a creditor could be allowed to prove his debt, before the Commissioner, upon filing his bill for that purpose, and before the cause, as to him, was set for hearing, in the regular course of the Court, as to other suits.

IN several causes, during the present term, where the bills had been taken as confessed, final decrees were moved for, without proof in some of the causes, and without the documents referred to by the bills in some others: and whether, under such circumstances, decrees could be entered, was the questiqn of which the Court took time to const*, der; and now,

Cowles and others legatees of Susanna Cooper formerly Susanna Hooker, filed a bill in the high court of chancery against Thomas Cowles and William Brown stating, that, by marriage settlement, the property of the said Susanna Hooker, the wife of John Cooper, was reserved to her use, with the right of disposing of it by her last will.

THE bill in this case was filed to recover some negroes, t0 recovery of which at law, there was no other objec» y10n t}ian pne want of a name to a child, and the profits of dTioll the mother; of all which the bill sought a discovery. Tbs jurisdiction of the Court was objected to by the answer, and that was the only question argued and submitted.

THIS case was sent to the Chancellor in the last vaca» tión, for an order for an account, while the cause stood at rules.

THERE was an injunction m this case, as to 3Si. 17s. . , , . „ part of a judgment at law against the puuntih,;«lavour oí one of the defendants, which the bill alleged was won at gaming, and that thej'udgment was obtained upon the testimonyof the other defendant, who, it ivas alleged, ivas a partner of the plaintiff at law, of which a discovery was sought. The answer denied the partnership, or that any 3 inoney was won at gaming.

<p>UPON the death of the plaintiffs and the executor of the defendant, a set. fa. was issued in the name of the administrator of the wj/e, as she survived her husband, against the administrator of the executor of the defendant; to which it was 1ected, upon motion, that the sci.fa. should be dismiss ed, for the want of a bill.</p>

'L'HE injunction awarded in this case, in December last, was to stay proceedings at law, on the usual terms, until the answer came in, which was filed on the first day of this month; and now a motion was made to dissolve the injunction.

THERE was an order in this case, at last September term, that the defendant should come into Court to answer interrogatories, upon oath, as he had not answered. To this term he sent his answer, to which there was an objec» tion, as being insufficient, and a motion was now made, to bring him in by a messenger.

George Pickett sen’r died in 1821. His will was admitted to record in the Hustings Court of Richmond, and George C. Pickett and Robert Pickett, two of the executors therein named, qualified as such in that Court.

IN this case one of the defend ants, who is an infant, had a guardian appointed to defend him; and, for some reasons which the guardian assigned, the Court, at his instance discharged the.order : and now Mr. Botts moved, that as it was the interest of the infant’s friends to decline his defence, in order to keep the plaintiff out of his rights, the clerk of this Court should be appointed as the standing guardian of the infant suitors, or that the last order should be…

Mr. LOCKETT, an attorney at law, by counsel, moved to be made a defendant in this case, as being interested in the judgment at law.

Assumpsit for use and occupation of land, brought by Briggs against Hall, in the county court of Fauquier. There were two counts in the declaration ; namely, general indebitatus assumpsit for the use and occupation, and quantum meruit for the same. Plea, non assumpsit.

<p>After a decrcc for an account against •who is in con-report of'tiie Commissioner, such defendant can. be permitted ■to file bis antimontf that' delay the trial!</p>

Porter brought indebitatus assumpsit, in the county court, against Harris, for work and labour done and performed, and for materials found in and about the same. The plaintiff obtained an office judgment and writ of-enquiry in January 1794; and, at the March court, in the same year, without setting aside the office judgment, a general order of reference, to be returned to the next August court, was made by consent, with a release of all antecedent errors.

OKF the 29th August, 1799, Reuben Coutts executed three notes, under seal, to Hicks and Campbell, for 154/. 8s. 4d. each, with interest, payable on the 1st day of September, 1800, 1801, and 1802, in which he bound his heirs.

<p>Appellate Practice — Setting Aside Order ot References— Failure to Except — Effect.—If there be an order of reference by consent; and it be afterwards set aside, without its being- shewn at whose instance, or for what cause, it was done; and no exception be taken at the time, the court of appeals will affirm the j udgment afterwards rendered upon a • verdict subseauently obtained.</p> <p>Pleading and Practice — Indebitatus Assumpsit — General issue — Proof under- * Case at Bar. — In indebitatus assumpsit, if the defendant,'after office judgment and a writ of enquiry, offers to plead, in abatement, that the matter of the suit was contained in a covenant under seal, and the court reject the plea, but give leave to plead the general issue, it will not be error; for the defendant might have given the special matter in evidence under the general issue, and if it had been refused, might have filed an exception to'the opinion.</p> <p>Same — Late Stage of Suit — Special- Plea — Quaere.— Whether, at a late stage of the suit, a special plea may be received, and the cause sent back to the rules ?</p> <p>Same — Same—Same—possibly there may be cases w’here it would be proper; but the circumstances should be very strong.</p> <p>Bills of Exception — Signing—flandamus by District Court to County Court.-† — The district court made a rule upon the justices of the county court to shew cause why a writ of mandamus shouid not issue, commanding them to “sign and seal” a bill of exceptions; they having appeared and “assigned satisfactory reasons" why they did not sign and seal the same, the rule was discharged.</p> <p>Appellate Practice — New Trial — Affidavits after Appeal. — The appellate court cannot grant a new trial upon affidavits taken after the appeal was depending in such appellate court.</p>

JOHN COGBILL died intestate, seised of lands in fee-simple. Before his death, one of his nephews, Thomas W. Cogbill, died intestate, and left Sally Wilson Cogbill, his only child, an infant of very tender years, who survived the first intestate, and died, leaving her mother and an aunt, the only sister of her father; there being no grandfather or grandmother on the father’s side of the infant, nor uncles nor their descendants; and the only question was, between the aunt and…

<p>A plea to the jurisdiction of this Court that a suit is depending in an inferior Court for the same matter, is proper.</p>

BOTT’S .moved, on behalf of the defendant, for a com» mission to examine the plaintiff- de bene esse saving all just c exceptions,

. IN this case there had been a decree in part, and a long time had elapsed since the cause had been set for hearing r . upon a publication of depositions; and now a motion was made by Mr. Copland to amend the bill by charging a new and material fact, to wit, fraud; to this there was an ohjection by Mr. Hay, which was submitted to the Court.

IN this .case an injunction had been applied for upon the ground of usury,’and refused, because, from the bill and the evidence, it appeared to have been a fair sale of bank stock, unconnected with either a treatit for the loan or forbearance ^ t J ** of money. The bill was, notwithstanding, filed, and the , , , , . cause regularly brought to a hearing, and was argued by counsel and submitted.

<p>in a suit in executofs™it to ente” a:decroe to be levied of the goods of the outranW\iccount.</p>

THE bill in this case was offered during the last spring vacation for an injunction.

On the 12th of March, 1794, Bachus gave his bond to Barksdale for payment of a sum of money on demand; and Barksdale, on the following day, assigned it, to Fen-wick, “for value… Held: that a latent equity would prevail against an innocent assignee; and a stronger instance of dissimilitude cannot be put. Indeed the notions of merchants upon mercantile subjects are not suited to the bulk of society; and that has produced a wide difference in practice between bills and bonds.

This was an action on the case, in the circuit court of Norfolk, brought by Massenburg against Pierce, for enticing away and keeping and detaining in his Pierce's service, two apprentices and servants of Massenburg, named Minson and Face. Plea, the general issue.

<p>John Baylor deceased, by deed, in bis lifetime, dated the 25th November 1801, in consideration of 2550 dollars, conveyed to George Tod, in fee simple, a parcel of land (300 acres) in Caroline. This deed purported, in the body of it, to be the deed of Baylor and of Anne his wife; bat the husband only signed and sealed it; and though there was another seal to it, put there for the wife, she did not sign the deed.</p> <p>And by another deed, dated the 12th October 1803, purporting to be the deed of Baylor and wife, and signed and sealed by them both, in consideration of 2624 dollars, they conveyed to Tod, another parcel of land (320 acres) in the same county.</p> <p>Commissions for the privy examination of the wife as to both the deeds, were issued from the county court of Caroline, and directed to two justices of the peace for the county. The commissions as to the first deed of November 1801, recited that the deed had been executed by the husband and Anne the wife, and that the wife could not conveniently travel to the county court to make acknowledgment thereof; and empowered the commissioners to receive the acknowledgment, which the wife should be willing to make before them, of the conveyance contained in the deed, which was annexed to the commission; and then proceeded in these words—“ And we do, therefore, command you, that you do personally go to the said Anne, and receive her acknowledgment of the same, and examine her privily and apart from the said John Baylor her husband, whether she doth the same freely and voluntarily, without his persuasions or threats, and whether she is willing that the same shall be recorded in our said county court: and when you have received her acknowledgment and examined her as aforesaid, that you distinctly certify us thereof in our said court, sending then there the said indenture and this writ.” And the form of the commission as to the last deed of October 1803, was exactly the same, mutatis mutandis.</p> <p>The certificate of the justices who executed the commission as to the first deed, returned under their hands and' seals, indorsed on the commission, was in these words: “ Agreeably to the power to us granted by the within commission, we have this 10th August 1802, personally gone to JUrs. Anne Baylor, and examined her privily and apart from her said husband,—who makes to us her acknowledgment of the conveyance of 300 acres of land contained in the indenture hereto annexed, freely and voluntarily, without the threats or persuasions of her husband, and that she is willing the same shall be recorded in the county court of Caroline.” And the certificate of the justices who executed the commission as to the last deed, was the same, mutatis mutandis.</p> <p>Both the deeds, with the commissions for the privy examination of the feme covert, and the certificates of privy examination, were duly recorded.</p> <p>John Baylor, the husband, died in September 1824. And in 1827, his widow, Mrs. Baylor, exhibited her bill in the superiour court of chancery of Fredericksburg, against George Tod, the purchaser of the two parcels of land in the deeds conveyed; alleging, that neither of the deeds was so executed by her according to the provisions of the statute then in force,* as to make the same binding on her; and praying, therefore, that dower might be assigned her of both parcels of land; and an account of the rents and profits from the death of her husband.</p> <p>Tod, in his answer, admitted the facts, but insisted, that the-deeds were both duly executed by Mrs. Baylor, and that she had thereby relinquished her right of dower in the lands.</p> <p>The chancellor, by an interlocutory decree, appointed and directed commissioners in the country, with the assistance of the surveyor of Caroline, to lay off and assign to Mrs. Baylor, one equal third part of both the parcels of land in question, respectively, having regard to quantity and quality, to be held by her for her dower in the lands: and he ordered a commissioner of the court to take and report an account of the profits from the death of John Baylor, the husband, to the time when the dower should be assigned to the widow', and also an account of all the permanent improvements made by Tod on the lands.</p> <p>The commissioners in the country, reported that they had proceeded, in pursuance of the decree, “ to assign to Mrs. Baylor, 140 acres of land, by metes and bounds, as laid down in the plot [returned with the report], being, in their estimation, one third of the parcel of 300 acres of land conveyed by John Baylor to the defendant, by the deed of November 1801, having regard to quantity and quality”— and also “to assign to her 110 acres of land, by metes and bounds as laid down in the plot, being, in their estimation, one third, according to quantity and quality, of the parcel of land conveyed by Baylor to the defendant, by the deed of October 1803,” which parcel was found to contain 328 acres.</p> <p>The commissioner of the court reported an account of the profits, and an account of the value of the permanent improvements that had been made by Tod,. He stated the annual value of the whole of the lands, to be 280 dollars; and that the aggregate profits of the whole, at that rate, for the time from the death of Baylor to the assignment of dower to his widow, was 1068 dollars. And he stated the value of the permanent improvements made by Tod, to be 1270 dollars. But it did not appear from the report, whether in his estimate of the profits, he stated the yearly value of the laud without reference to Tod’s improvements, or the yearly value as enhanced by those improvements.</p> <p>No exceptions being taken to either report, the chancellor, on the final hearing, approved and confirmed them; and decreed, according to the first report, that Tod should surrender to the widow, the two parcels of land laid off for her dower, and should pay her 356 dollars, being one third of the amount of profits of the whole of the lands, as stated in the second report. From this decree, Tod appealed to this court.</p>

IN this case there was a decree for the plaintiff m fune, . , 1802, against Austin, asan absent debtor; and the home defendants were decreed to pay to the plaintiff, on that account, 50/. with interest from the 1st March, 1796, and costs 5 upon condition that the plaintiff gave bond and security to restore to the absentee the sum aforesaid with its interest, in case he should claim the same and be adiudered J & entitled thereto: the absentee died; and the security, by the…

THE defendants had recovered a judgment at law against the plaintiff for some negroes, the use of whom was devised to the defendant’s wife for life, and then to the plaintiff; and the bill was filed for an injunction, which was granted, to inhibit the defendants from getting possession of the negroes, until they gave security for their forthcoming at the death of the wife, upon this ground, that her husband, having failed as a merchant, might put the negroes beyond the…

THERE was a decree by default, in this case, to fore- , , . , , „ close a mortgage : to this decree there was a bill oj review filed by Ellzey, upon the ground of usury, and claiming to *3e released from the interest, which was decreed accordinSiv ; and from which Ellzey appealed: the Court of Appeals reversed this decree, because the bill of review was improperly admitted by the late Chancellor, to an interlocutory decree.

<p>THE plaintiff, as Sheriff of Henrico County, took the. goods and chattels of J. S. Moore, under an execution ° J 7 from this Court, on behalf of one Taylor. Payne one of ’ _ the defendants claimed the goods: and the Sheriff exhibited ... . , , his bill for an injunction to stay any suit that might be brought against him, and to compel Payne and Taylor to interplead as to their rights.</p>

<p>THE bill in this case was filed to obtain alimony : it stated the marriage of the parties many years ago in New-Jersey, in the United States; and that, without any impropriety of behaviour on her part, he had separated himself from her, without affording to her any support; that with all her endeavours she had often been without the necessaries of life ; and his knowledge of the fact, instead of exciting even compassion, had caused only contempt and insult; that she had been frequently compelled to depend upon charity for subsistence, while he enjoyed a very considerable estate real and personal: wherefore she prayed for an adequate support, and for general relief.</p> <p>In support of the allegations of the bill, there was the following proof:</p> <p>1. William Richardson swore that in 1786 he was living In Philadelphia, a near neighbour to some of Mrs. Purcell's connexions, and occasionally visited them ; that two of them, Mrs. Duncan and Mr. Henry, were both persons of wealth, and high respectability ; that he often heard them express their sorrow at the marriage of their niece and cousin Ann, to Charles Purcell, from apprehensions that he would not make a good husband ; that in 1787 or 1788, the deponent was in Richmond, and, among others, became a boarder at the house of Charles Purcell, and that he did believe the said Ann to be the lawful spouse 'of the said Charles Purcell.</p> <p>2. Minion Collins swore, that he had been acquainted in the family of Charles Purcell about twenty years ; that during the whole of his acquaintance, Mrs. Purcell was treated by the said Charles Purcell very affectionately, and that he did always believe she was his lawful wife, as she was introduced as such to the acquaintance ©f many genteel families in this city.</p> <p>3. Col. Robert Gamble swore, that in the year 1790, before he had removed to Richmond, but while he and Mrs. Gamble were on a visit to that place, Mrs. Purcell was introduced to Mrs. Gamble, by Mrs. Sampson Matthews, and several other ladies ; that the deponent soon afterwards removed to Richmond., and from the spring of 1791 until the summer of 1798, he and his family were neighbours to Charles Purcell, during which time their families recip.rocally interchanged the accustomed civilities ; that the plaintiff and defendant lived apparently as man and wife ; that he had seen Mrs. Purcell at the city assemblies or balls, and that reputahle families were in the habit of visiting Mr. and Mrs. Purcell at their, own house; that the deponent was called upon by the said Charles, to unite with Col. Lambert, to take his wife’s privy examination, which they did; and that the said Charles always called the plaintiff Mrs. Purcell.</p> <p>4. Col. D. Lambert swore, thát at the request of Mr. Charles Purcell, he, with Col. Gamble, waited on the said Ann, at the house of the said Charles, on the eleventh of February, 1792', and took her relinquishment of dower in some real estate conveyed by them ; and that he always understood and believed that the said Ann was the wife of the said Charles Purcell, until, lately, it has been otherwise hinted by the said Charles Purcell.</p> <p>5. There was'the certificate of the clerk of the Hustings Court of the city of Richmond, which stated, that the privy examination and relinquishment of dower, by the plaintiff, as stated by Col. Gamble and Col. Lambert, had been returned and duly recorded.</p> <p>6. Besides, there were seventeen letters filed j three dated in 1794, 1798, and 1804, from their friends and connexions in Ireland, one directed to Mr. Charles Purcell, jewel» ler, Richmond, and the other two to Mrs. Ann Purcell, to .the care of Mr. Charles Purcell, making the most friendly inquiries after them and their children; two others of 3 most affectionate character, dated June and July, 1780, addressed by him to her, by the name of Mrs. Ann Purcell, while she was on a visit to her friends in Philadelphia ; ten others of a like character, dated in 1799, 1800, 1801, 1802, and 1803, addressed by. him to her by the same name, while she was in New Kent, at Mr. Andrews’ in Norfolk, and in. Baltimore; one other addressed to Mr. Charles Purcell, by Mr. Pauley, at whose house she' had been accommodated, at the instance of the said Purcell, enclosing his bill, dated July, 1802; and one other from Charles Purcell, dated Richmond, July, 1804, in which he, for the first time, de~ nounccd(1) her ; but advised her to go to her brother’s, and as he might find it convenient, he would give her some assistance.</p> <p>Upon the bill, and the evidence aforesaid, the plaintiff, by counsel, at February term, 1808, moved for alimotiypendente lite; when the defendant, by counsel, asked leave to take the papers in order to file his answer, which was granted.</p> <p>The answer was filed the next day; it positively denied the marriage; and stated, that in April, 1786, he had joined a boating party with the plaintiff and several others, and had taken a trip to the Jerseys; and that soon afterwards she voluntarily embarked with him for Richmond, where he acknowledged they had passed as man and wife ; that the relinquishment of dower was taken more to satisfy those interested in the purchase-money, than for any other purpose; that he then denied the marriage; that in August, 1797, a young lady from Ireland was introduced to him, by the .name of Ann Church, by Robert Means, as the niece of the plaintiff, whose expenses the defendant paid ; but, in a short time, Ann Church proved to be an illegitimate daughter of the plaintiff; that, notwithstanding this, .he educated her, and upon her marriage, gave her a house and lot in the city of Richmond; but then declared, that it was done for the respect which he once had for the said plaintiff; that in 1798, when his houses were consumed by fire, he was obliged to rent a house, to which he removed; but the plaintiff thought proper to accept of the invitation of her friends, and not to go with him ; that shortly after, she, of her own accord, without his knowledge, extended her visits to the borough of- Norfolk, Lynchburg, Williamsburg, Baltimore, and other places, which he admitted she had a right to do; that in 1800, and 1804, she was in Richmond, and continued there for some time, without returning to him, or asserting any demand against him; but still he did afford her some aid; but declared it was from charity, and not from any obligation that he was under; that if she had been his wife, which he denied, yet her departure from him, and her manner of living afterwards, would be a bar to any claim of dower, if he were, to die, and should be of course to alimony; and that if they were married, she could say where the marriage ceremony was performed, the clergyman, and the persons or some of them who were present; and in support of this answer, he filed the following proof:</p> <p>1. The affidavit, of James Miller, in which he stated that he had understood, from the plaintiff, that she and the defendant were married in Philadelphia,</p> <p>2. The affidavit of John Sedwich, in which he stated, that about December, 1807, he understood from her that ■she was married in Philadelphia to Charles Purcell, but that she did not then wish to live with him as his wife; but merely to recover of him as much money as she could ; and at another lime she said they were married in the Swedish Church in Philadelphia, and that he, the deponent, replied, then you can get a certificate of your marriage ¡ but she said, that they kepi no record of marriages, and that after they were married, he left her at her aunt’s door, and that he had no other knowledge of her until they embarked ■for Richmond,</p> <p>3. The affidavit of Robert Cotvanin which he slated, that in 1803 and 1804, a person by the name of Mrs. Ptír» ■>r-il was at .Norfolk, and lived with Jeremiah Andrews, while his wife was in England: and that people spokn freely of Mrs. Purcell on that account; and that as soon as Mrs. Andrews returned, Mrs. Purcell was discharged.</p> <p>4. The cross-examination of Col. Gamble, which had no hearing on the question.</p> <p>And thereupon the plaintiff renewed her motion for alimony pendente lite. To which the counsel for the defendant objected:</p> <p>1. Upon the ground of jurisdiction: and,</p> <p>2. For the want of sufficient proof of the marriage.</p>

Alexander Spotswood, grandson and heir of major general Spotswood, filed his bill, in the high court of chancery, against Edmund Pendleton and others, stating that general Spotswood, by his will, entailed his lands in Orange, Culpeper and Spot-sylvania, upon his son John; but charged them with four legacies, which John was empowered to raise by sale, or mortgage, of any part of the lands.

<p>Debt on a promissory note of one Hart and the appellant Butcher to Hixton, brought in May 1826, by Hixton against the makers, in the county court of Randolph. The declaration was in the usual form, alleging the execution of the note by the defendants, and the failure and refusal of both and each to pay the money. The defendants pleaded payment, jointly; and Butcher, severally, pleaded the statute of limitations. The plaintiff replied generally to both pleas, and thereupon issues were made up.</p> <p>The evidence at the trial, was, 1. the promissory note on which the action was founded; which was a note of Hart and Butcher to Hixton, dated the 26th October 1819, for 126 dollars payable the 15th September 1820, with a credit indorsed on it for four dollars paid on the 22nd August 1822 ; and 2. proof that Hart, within the five years next before the action brought, acknowledged that the debt mentioned in the note was unpaid and justly due; that Hart, however, was now insolvent, though he was solvent at the time the note fell due; and that Hart was the principal debtor, and Butcher was only his surety. And this being all the evidence, Butcher demurred thereto, as not sufficient to maintain the action against him; and the plaintiff joined in the demurrer.</p> <p>There was a verdict for the plaintiff, subject to the opinion of the court on the demurrer to evidence. The county court held that the law on the demurrer was for the plaintiff, and gave him judgement against both defendants. Butcher appealed to the circuit court, which affirmed the judgement; and then he appealed to this court.</p>

<p>Verdict — Certainty*—Case at Bar. — If the verdictfinds for the libellants, “the vessel, tackle, apparel and cargo, except that part of the cargo upon which the duties have been paid,” it is too uncertain, and will be set aside.</p> <p>Same — Same-Curing Uncertainty. — 'Nor can the uncertainty be cured by reference to the answer.</p> <p>Revenue Laws — Entry of Ship and Cargo — Case at Bar. —Where the master applied at the naval office in Norfolk to enter the ship and cargo (for a small part of which the duties were paid down by the owners) and offered to give bond with security for the payment of the duties upon the goods belonging to persons in Petersburg and Richmond. but the naval officer refused, and directed them to be landed as a deposit for the duties; in doing-which it was necessary to take out those belonging to Norfolk first, and lay them on the wharf; from which part were ajterwards carried away by the owner of them (who had several times offered to pay the duties) without the knowledge of the master: It was not a breach of the law, which forfeited the ship and cargo.</p>

THIS was an adjourned case from the District Court oi , , . . , , Hay market, upon an information and verdict against Jom: Alexander, a Justice of the Peace, in the county of Loudoun, for tak‘inS his seat (tke 9th of August, 1803) “ on the bench of the said County Court, and acting as a Justice and member of the Court then and there sitting, in giving hie ... “ ° . vote upon a judicial question and examination at the time depending in the said Court, and in signing the…

William Bentley, as administrator of William Ronald, filed a bill, in the high court of chancery, against Majm and others, stating, that, having been sued by Mayo, in the county court of Powhatan, upon a bond, he instructed his attorney to set aside the office judgment and plead payment, intending to add a plea of fully administered afterwards. That his attorney directed the clerk to set aside the judgment, and enter the plea; but, from design, or inattention, it was omitted.

<p>This is a case adjourned from the Circuit Court of Northampton. The opinion of the Court contains a statement of the facts.</p>

The prisoner was indicted in the Circuit Court of Henrico and the City of Richmond, for larceny in stealing a gold watch, three five dollar notes of the Bank of Virginia, and two dollars in silver coin, the property of Benjamin F. Dabney.

<p>Sydnor sued out a writ of fieri facias on a judgement of the county court of Mecklenburg, against Baptist, and delivered it to Gee, the sheriff of the county, who levied it on three slaves, named John, Rachel and JVancy, as the property of Baptist; but a doubt arising whether the slaves were the property of Baptist, or of the estate of A. Clausell deceased, and Clausell’s executor forbidding the sale, the sheriff required of Sydnor, and he gave, an indemnifying bond, with one Cunningham his surety, according to the statute, 1 Rev. Code, ch. 134. § 25, 6, 7. pp. 533, 4. and thereupon two of the slaves were sold to satisfy Sydnor’s execution.</p> <p>And then an action of debt, on the indemnifying bond, founded on the statute, was brought by Gee, the sheriff, at the relation and for the benefit of Clausell’s executor, against Sydnor and Cunningham, in the circuit court of Mecklenburg. The declaration set out the condition of the bond, and alleged as the breach thereof, that the three slaves taken and sold to satisfy Sydnor’s execution against Baptist, were the property, not of Baptist, but of the relator. Plea, conditions performed; and issue. At the trial, the defendants demurred to the evidence, and the plaintiff joined in the demurrer. The evidence set out in the demurrer was as follows:</p> <p>1. Sydnor’s fi. fa. against Baptist (by the return upon which, it appeared, that it was levied upon the three slaves before mentioned, and that two of them John and Nancy were sold to satisfy the execution) and the indemnifying bond on which the action was founded.</p> <p>2. An absolute bill of sale, executed by Baptist to A. Clausell, in his lifetime, dated the 9th November 1821, and recorded in the county court of Mecklenburg on the 30th October 1822, whereby Baptist, in consideration of 850 dollars, conveyed to Clausell, a female slave and her children, among which were the three slaves, on which Sydnor’s execution was levied; on which bill of sale the following writing was indorsed—■“ This day the within named M. Baptist gave and delivered to the within named A. Clausell, the within mentioned slaves [naming them] in the presence of us, as witness our hands, the 7th December 1821. (signed) M. Baptist, [the vendor]—J. Clausell and M. Brand,” [the witnesses]. And it was proved by two of the subscribing witnesses to the bill of sale, that the above writing indorsed thereon was, in fact, executed on the same day on which the bill of sale was executed, though the dates appeared to differ.</p> <p>3. Evidence, that Baptist, before the execution of the bill of sale was indebted by bond to Clausell in the sum of 1280 dollars; and that the slaves in the bill of sale mentioned were sold by Baptist to Clausell, at a fair valuation by indifferent persons, for 850 dollars, in part satisfaction of that debt; and a credit for that sum was indorsed by Clausell, on the bond; this credit being of the same date as the bill of sale.</p> <p>4. Articles of agreement under seal, between Clausell and Baptist, of even date with the bill of sale (namely, the 9th November 1821), and attested by the same subscribing witnesses; whereby it was witnessed, that Clausell hired all the slaves in the bill of sale mentioned to Baptist, from that date till the 1st of January 1823; in consideration of which Baptist obliged himself to find them victuals and clothes during the term, and to pay all taxes and levies upon them.</p> <p>5. The evidence of witnesses (who were the witnesses to the bill of sale) that Baptist, immediately on the execution of the bill of sale at Baptist's house, the slaves being then present, said to Clausell, “ Here are the negroes; they are your properlythat the witnesses of the transaction then went away, leaving Baptist and Clausell together, and the slaves also there, and did not know whether Clausell removed the slaves at that time or not: that Clausell lived during the year 1822 at Baptist's bouse, Baptist's wife being Clausell's sister: that about Christmas 1822, Clausell removed all the slaves to his own land in the neighbourhood : that Clausell held possession of them all, from that time till bis death in December 182C, except one which he sold, and another which he hired to Baptist in the year 1825, as a nurse for his child : that Clausell, from the date of the bill of sale, listed the slaves on the books of the commissioner of the revenue, as his property : that during the years 1823, ’24 and ’25, Baptist having dissipated his property, lived on Clausell's land, as his overseer; and the slaves mentioned in the bill of sale worked there under Baptist as the overseer, until 1825, during which year he was dismissed; and the slaves, thenceforth, remained in the exclusive possession of Clausell; and after his death in December 1826, all of them, except the one which he had sold, remained in possession of his executor until they were taken by the sheriff under Sydnor's execution against Baptist.</p> <p>6. The will of A. Clausell, whereby he bequeathed the slaves to a legatee.</p> <p>7. The defendant then adduced evidence, that Baptist was, at the time of the execution of the bill of sale to Clausell, indebted beyond what he was worth, and all the other, slaves he then held in his possession, being only three, were mortgaged for debt; and that the debt due by him to Sydnor, for which the judgement was recovered on which Sydnor’s execution was sued out, was contracted before the bill of sale to Clausell was executed.</p> <p>There was a verdict for the plaintiff for 550 dollars with interest &c. The circuit court held, that the law on the demurrer to evidence was for the relator, and gave the plaintiff judgement, for his benefit; from which Sydnor appealed to this court.</p>

This was an indictment in the Circuit Court of Tazewell, against John Helmondollor for an assault. The defendant appeared and filed a plea in abatement, that William C. Edmonson, one of the grand jury which found the indictment, was not at the time a freeholder of the county of Tazewell. The parties agreed the facts, and the Circuit Court adjourned the question to this Court. The facts are set out in the opinion of the Court.

<p>1. Persons having less than one fourth of negro blood in their veins, are competent witnesses, on the trial of a white man.</p> <p>2. The fact that a witness is of negro descent, though not so near as to render him incompetent as a witness, is not competent evidence to impeach his credibility.</p> <p>3. The offer of the prisoner to bribe the person who has him in custody, to permit him to escape, and his attempts to escape, may be given in evidence against him; though the offer and the attempts wrere made when the prisoner had been committed for a different offence from that for which he was tried; both offences being founded on the same fact.</p>

<p>At the April term of the Circuit Court for the county of Cabell, the grand jury found a presentment against John Tiernan, for that at a time and place therein mentioned he “did unlawfully gamble by playing at a game of cards, and then and there unlawfully did bet and wager on the sides and hands of those that then and there did play, contrary to the form of the statute,” &c.</p> <p>At the October term of the Court the defendant appeared by his attorney and moved the Court to quash the presentment, on the ground that there were two separate and distinct offences charged in the presentment. And he also moved the Court to dismiss the proceedings in the cause, on the ground that there was no sufficient record of the alleged presentment.</p> <p>The record after giving the names of the grand jury, stated, that they had been sworn and charged, and retired to consider of their presentments and indictments, “ and after some time returned into Court with a presentment for unlawful gaming against John Tiernan.” This presentment is noticed on the record in the following words: “ A presentment for unlawful gaming against John Tiernan.”</p> <p>The Court, with the consent of the defendant, adjourned to this Court the following questions:</p> <p>1. Is it necessary to the validity of a presentment for a misdemeanor, or other criminal offence, that it should appear upon the record book of the Court in extenso ?</p> <p>, * 2. Is the record in this case of the finding of the presentment sufficient ? .</p> <p>3. Ought the presentment aforesaid to be quashed for its alleged duplicity ?</p>

At the April term 1847 of the Circuit Court of Jackson county, the grand jury found an indictment against Roach Carney for a misdemeanor.

Williamson alias North was indicted at the October term 1847, of the Circuit Court for Henrico and the City of Richmond. The indictment contained three counts. The first was for larceny, in stealing a slave named John Henry, the property of William H. Roy.

By indenture, dated the 6th April 1804, between William Royall of the first part, James Roane of the second part, and John Archer and John Royall, trustees of the third part,—reciting that Roane was indebted to William Royall in the sum of £2000. by bond dated in September 1787, and was desirous of bestowing this money on the children of Roane by Elizabeth his wife, who was the nearest relation of Royall, and had agreed to give up the bond to Roane to be cancelled, in…

<p>1. A clerk has no authority, when applied to for a marriage license, to examine a witness on oath as to the age of the parties.</p> <p>2. The authority of a clerk to administer an oath out of Court, only extends to cases in which, without regard to circumstances, the making the affidavit is a necessary prerequisite to the performance of the official act which the clerk is called upon to perform.</p> <p>3. The swearing falsely before the clerk, that a person applying for a marriage license, is over the age of twenty-one years, does not constitute the offence of perjury.</p> <p>4. But if by such false oath, the person applying, is enabled to obtain a marriage license, and the marriage takes place, the taking the false oath is a misdemeanor.</p> <p>5. In a proper case, the Court may permit the attorney for the Commonwealth to amend his information after a demurrer thereto ; but this should not be done where the offence charged in the presentment, upon which the information is based, does not amount to a misdemeanor.</p>

Fleming gave a • forthcoming bond to-Saunders ; on which the latter made a motion for judgment in the county court of Gooch-land.

<p>Revenue Laws — Breach ot — Failure to Enter Vessel.*— Where the vessel, by violence of tempest, was forced to quit Hampton, road, and proceed up to Warwick, before an entry was made at the naval office in Hampton, there was no breach oí the revenue laws, if the entry was made, in convenient time, afterwards, the duties secured, and a permit obtained.</p> <p>Statute -Breach — Excuse.—Necessity will excuse the infraction of a statute.</p>

By the act of assembly passed in 1748, it is enacted that, if the owner of goods taken in execution shall give sufficient security to the “sheriff or officer, to have the same goods and chattels forthcoming at the time of sale, it shall-be lawful for the sheriff or officer, to accept such security, and to suffer the said goods and chattels to remain in the possession, and at the risk, of such debtor, until the time aforesaid.” Old Virginia Laws, 194.

John Moring, in 1793, filed a bill in the high court of chancery, stating himself to be eldest son and heir at law to William Moring, who was eldest son and heir at law to William Moring, son and devisee of Chistopher Moring, the elder; and that the said Christopher Moring, on the 27th of December, 1751, made his will; and, thereby, among other things, bequeathed as follows, “I give to my sons Christopher Moring and William Mor-ing all the rest of my estate, that I have not…

This was a bill exhibited in the superiour court of chancery, by Catharine Cartigne against John Raymond, the administrator of Eliz.

Self, upon the 30th of January, 1790, sued a writ of replevin in the county court against Turberville for a return of seven slaves taken upon a distress for rent. The writ commanded the sheriff, “that justly and without delay you cause to be replevied- to Stephen Self his negroes which John Tur-berville hath distrained, took and unjustly detaineth as is said, &c.” Upon this writ Self on the 29th of May, 1790, gave the usual replevin bond in such cases.

James Hardaway late of JYottoway died in September 1826, having by his last will and testament, devised and bequeathed real and personal estate to his infant… Held: that Dupuy was not a testamentary guardian, and that the infant had a right to choose a guardian ; and, therefore, appointed Robertson her guardian, in compliance with her choice. From this order Dupuy appealed to the superiour court of chancery of Richmond, which affirmed it; and then he appealed to this court.

Rove filed a bill, in the high court of chancery, against Ross, Shore & Co., stating, that, upon the 5th of August, 1779, articles of affreightment of the plaintiff’s brigantine, the General Scott, were entered into between the plaintiff and the defendants in writing, thereto annexed.

Assumpsit by Triplett & Neale against Smith & Rickard in the circuit court of Fauquier.

Debt in the circuit court of Henrico, brought by the president, directors and company of the farmers bank of Virginia, indorsees and holders, against Frederick Clarke, the maker, and Miles Bott and Colin Clarke, indorsers, of a note negotiable and payable at the bank, for 1200 dollars. mt . r , .

In a suit brought, in the high court of chancery, by William H. Macon, as administrator of Sarah Macon his wife, and of Mary Ambler the widow of Edward Ambler, against *the surviving executors of the said Edward Ambler, the executors of Robert Carter Nicholas, and John Ambler, the case appeared to be as follows : Edward Ambler died, in 1768, seized in fee of an estate in Jamestown; a plantation, not far from thence, on Powhatan swamp ; an estate in Hanover called the Cottage…

Kendall Co. having recovered a judgement against Gholson, in the circuit court of Brunswick, and sued out a fieri facias thereon, which was levied on the property of Gholson, he gave a forthcoming bond, with sureties, for the delivery of the property at the time and place appointed for the sale thereof; and the forthcoming bond being returned forfeited, Kendall &r Co. moved the court for award of execution thereon, against the principal and his sureties.

This was a bill in the superiour court of chancery of Fredericksburg, exhibited by Pitman Hill against Abner Alcock, alleging, that Alcock having recovered a judgement in the circuit court of Stafford, against James Hifilin and Richard Hill, and sued a fieri facias thereon, which was levied on their property, the plaintiff Pitman Hill and one Corbin became their sureties in a forthcoming bond for the delivery of the property at the day and place of sale; and the forthcoming…

Sarah M’Keown exhibited her bill against Patrick Foley, in the superiour court of chancery of Richmond, alleging that in March 1828, she had advertised and offered for sale, at public auction, a house and lot in the town of Petersburg; that Foley purchased the property at the price of 1421 dollars, payable in instalments; and that a memorandum in writing of the contract and terms of sale, was prepared by the auctioneer, and signed by Foley, but that he now refused to , »…

By deed of marriage settlement between Edward Lenieve and Jane M’Cann, executed before the marriage, certain slaves, the property of the wife, were conveyed to Richard M’Cann, upon trust, from and… Held: that 'the property, under the provisions of the settlement, was not liable for the debts of the husband; and therefore, perpetuated the injunction. From this decree, Butler appealed to this court.

The appellee Jones, having recovered a judgement against one Thompson, in the county court of Buckingham, sued out a fieri facias thereon in August 1820, on which execution there was the following indorsement for the direction of the sheriff, viz. “ Credit 58 dollars paid the 27th May 1818—Credit John Johns’s half of the within, 25th May 1819.” It appeared by the sheriff’s return on this execution, that he gave credit for the 58 dollars, and omitting to give credit for…

Debt, in the circuit superiour court of Mecklenburg, brought in March 1832, by Love’s administrators against Goode, on a bond of Goode to Bruce Sydnor, assigned to hove in bis lifetime.

<p>By the statute of 1821-2, eh. 26. if a justice of the peace is appointed to and accepts an office under the government of the XJ. States or any other incompatible office, he thereby vacates his office of justice of the peace; his resignation of the incompatible office will not restore him to the office of justice of the peace; nor can he ever lawfully exercise this office, without a new commission.</p>

Case adjourned from the circuit superiour court of Roclchridge. At September 1831, a grand jury of sixteen persons was impanneled and charged; and having made one presentment, were adjourned to the next day, when all the jurors appeared; but it being discovered that one of them was not a freeholder, he was discharged and another juror sworn in bis place. The grand jury thus constituted, at a subsequent day of the term, found an indictment against Burton for unlawful gaming.

<p>Case adjourned from the circuit superiour court of Smyth. Upon an indictment for an assault and battery, against George, Archibald, Henry and Mahlon Sprinkle, and three other persons, the defendants pleaded, severally, not guilty. The jury found the four Sprinkles guilty, and assessed a fine, severally, on each of them; and they found the other three defendants not guilty. The court gave judgement against each of the defendants found guilty, for the fine assessed on him by the verdict, and judgement against all four of them, for the costs of the prosecution. They then moved the court to direct the clerk to tax but one fee for the attorney for the commonwealth. The court certified, that the evidence in the case, was the same against each defendant, shewing the different agency and guilt of each, in the same offence; and, with the consent of the defendants, adjourned the question of practice to this court, Whether a fee of ten dollars for the attorney for the commonwealth, ought to be taxed against each of the four defendants found guilty, or only one fee of ten dollars against all four of them ?</p>

These four cases depended upon the construction of the 11th section of the statute of the 15th March 1832, Sess. Acts of 1831-2, ch. 22. §> 11.

<p>Case adjourned from the circuit superiour court of Frederick. At May term 1832, the grand jury presented Reynolds, for a misdemeanour. The usual rule to shew cause why an information should not be filed, having been made and served on Reynolds, he appeared at October term, and put in a plea in abatement, alleging, in substance, that the grand jury which found the presentment, was not duly-constituted according to the statute in such case made and provided ; for that M. Smith, one of the jurors, was not, at the time of the presentment, a freeholder, or the owner of any real estate‘or interest therein, save only the naked legal title of and in a certain parcel of land, which he had, previous to serving on the grand jury, bargained and sold to a certain J. Monroe, by written articles of agreement under the seals of the parties; which articles, set out in the plea, shewed, that Smith had covenanted to convey his land to Monroe, upon Monroe’s performing certain covenants on his part; but the plea did not allege, that Smith had actually conveyed the land, or even that Monroe was, as yet, entitled by the articles to demand a conveyance thereof. To this plea the attorney for the commonwealth demurred generally. Whereupon, the court adjourned to this court, the question, whether Smith, under the circumstances stated in the plea, was a proper juror? But it did not appear from the record, that the case was so adjourned, with the assent of the defendant.</p>

<p>Case adjourned from the circuit superiour court for the county of Richmond. That court, at October term 1831, made a rule on Warner Lewis, sheriff of Essex, to shew cause, if any he could, why he did not detain in his custody one Abram White lately confined in the jail of Essex for petty larceny, and who was lately indicted in the circuit court of Richmond for forgery, and why he did not secure the person of White, that he might be dealt with according to law, as the sheriff was, by process from the circuit court of Richmond, and by his official duty, bound to do. This rule having been served on Lewis, he appeared to shew cause; but the matters alleged by him not being considered satisfactory, another rule was made on him, to shew cause, on the first day of the ensuing term, why an information should not be filed against him, for having disobeyed the process of the court, and violated his official duty, in discharging from his custody, the said White, then in confinement in the jail of Essex, under a sentence of the circuit court of Essex, for petty larceny, and who had been lately indicted for forgery in the circuit court of Richmond. This last rule was not made absolute; nor did it appear, that the court, in any way, gave leave to file the information ; but an J J , . information was filed by the attorney for the commonwealth,</p> <p>In some of the counts in the information, it was charged, in substance, that White having been indicted for forgery in the circuit court of Richmond, a capias was issued against him, and delivered to Lewis the sheriff of Essex, by virtue of which Lewis arrested White, and had him in his custody, and then permitted him to escape and go at large; and, in other counts, that the capias was delivered to and served by Hill, a deputy of Lewis, and that Hill permitted the prisoner to escape. Lewis demurred generally to the information, and the attorney for the commonwealth joined in the demurrer.</p> <p>The court ordered the capias, which had been issued against White upon the indictment against him for the forgery, and the return of the deputy sheriff of Essex thereupon, to be made part of the record. The capias was in the usual form : the return was in the following words—“ By virtue of the within, I took the body of the within named Abram White, who is now confined - in close jail in the county of Essex under sentence of the circuit court of the said county, for petty larceny, as will more fully appear by the order of the said court hereto annexed, and made part of my said return. (Signed) R. Hill, D. S. for Warner Lewis, sheriff.”</p> <p>And then the court, with the defendant’s consent, adjourned the following questions to this court:</p> <p>1. What judgement ought to be given on the demurrer?</p> <p>2. Taking the whole case into consideration, and having reference, particularly, to the capias which was issued against White, and the return made thereon by the defendant’s deputy, and to the proceedings in this prosecution previous to the filing of the information,—ought leave to have been given to file the information ? or ought a nolle prosequi to be directed ?</p> <p>And 3. any other question of law arising on the proceedings.</p>

Case adjourned from the circuit superiour court of Ohio. The defendant having been presented by the grand jury for unlawful gaming, offered a plea in abatement, stating, that II.

Brooks was indicted for the murder of a slave, in the circuit superiour court of Warwick, at a special term held on the 1st June 1831; and the court being satisfied, from the number of challenges to jurors, that an impartial and legally qualified jury to try the cause, could not be had in that county, ordered that it should be sent to the circuit court of York, to be held on the 8th day of the same month, where, in the opinion of the court, a fair and impartial trial could…

Case adjourned from the circuit superiour court of Westmoreland. At October term 1833, Waits, a free negro, was indicted (upon the statute of 1822-3, ch. 34. >§> 3.) and tried, for violently and feloniously making an assault upon, and attempting to ravish, one J. B. described in one count of the indictment, “ a white woman unmarried,” and in another, “ a white maid.” The jury found him guilty.

At May term J833, the grand jury made a presentment against Hord, “ for playing at an unlawful game called faro at the house of R. Lipscomb in the town of Brentsville” in that county.

Case adjourned from the circuit superiour court of Harrison. Israel was indicted in that court, at May term 1833, for a misdemeanour. There were three counts in the indictment. 1.

Case adjourned from the circuit superiour court of Accomack. Stephen, a free negro, was indicted for murder, in that court, at November terra 1833. He pleaded not guilty. “ Whereupon,” the record proceeded, “ came a jury, to wit, [here naming them] who being elected, tried and sworn the truth of and upon the premises to speak,” found the prisoner guilty of murder in the first degree.

Windsor was indicted in that court, upon the 5th section of the statute against unlawful gaming, 1 Rev, Code, ch. 147. p. 563. The indictment charged, “that he did unlawfully play at certain games at cards, to wit, the game of all fours, the game of loo, and the game of whist, at a public place, to wit, at the store house of G. Huddleston Sf Co.” The defendant pleaded not guilty.

<p>Petition for a writ of error to a judgement of the circuit superiour court of Hanover. Stevens was indicted in that court, tried and convicted of burning the common jail and county prison of Hanover, and sentenced to imprisonment in the penitentiary for the term of five years according to the verdict. There were several counts in the indictment; in the fourth of which it was charged, that the prisoner feloniously set fire to and burned “ the common jail and county prison in the county of Hanover, being the house of Laney Jones, sheriff and jailor of said county.” At the trial, the prisoner moved the court to instruct the jury, that Laney Jones, as sheriff and jailor of Hanover, could not legally have any such right of property in the county jail, charged to have been burned, as would sustain the fourth count in the indictment; but the court refused to give the instruction, and the prisoner excepted to the opinion. And now he presented a petition to this court, for a writ of error, assigning for error, the refusal of the court to give the instruction.</p>

<p>Execution — Endorsement of “No Security” — Statute Construed. — The clerk had. no authority to endorse upon a writ of fieri facias issued on a judgment obtained upon a forthcoming bond in April 1788, that no security should be taken.</p>

Case adjourned from the circuit superiour court of Tazewell.

<p>Case adjourned from the circuit superiour court of Lancaster. Percanil was indicted in that court, at March term 1834, upon the statute of 1822-3, ch. 34. § 1.* for knowingly and wilfully, without lawful authority, but not feloniously, wounding and killing thirty hogs, the property of E. Brent. Plea, not guilty. The jury found the following verdict: “ We of the jury find the defendant guilty, and assess his fine at twenty-one dollars, in case the court shall be of opinion, that the defendant is liable under the presentment made in this case to the penalties of the act to provide for the more effectual punishment of certain of-fences,” [namely the statute above referred to] “ for having shot and killed seven hogs the property of E. Brent, which hogs were on the land of the defendant at the time of the shooting and killing thereof.” Whereupon, the circuit court adjourned to this court, the following questions: 1. Whether the wounding and killing of hogs, not being upon the land of the owner thereof when they were wounded and killed, nor being at the time in his immediate personal possession, but being on the land of the defendant, is a destruction of personal property, within the meaning of the statute on which the prosecution is founded ? 2. What judgement ought to be given upon the proceedings in this cause ? And all questions arising upon the record.</p>

Petition for a writ of error to a judgement of the circuit superiour court of Prince George. The grand jury made a presentment against Gilliam,, for an assault on a deputy sheriff, and resisting him by force in the lawful discharge of his official duty, upon the information of the deputy sheriff, who was a voluntary informer; upon which an information was filed against Gilliam for the offence.

<p>If a person obtain possession of a watch from the owner, by a false and fraudulent pretence of buying it for cash, and then carry it away without the consent or knowledge of the owner, lie is yet not guilty of larceny, unless it was with a felonious intent that he so obtained possession of the watch and carried it away.</p> <p>The court, in the trial of a criminal cause, may properly instruct the jury on any question of law, when in its opinion justice requires such interposition, though it be not asked by either party.</p>

Case adjourned from the circuit superiour court of Henrico. Peas was tried in that court, upon an indictment on the statute 1 Rev. Code, ch. 111. § 30. p. 428.* The indictment charged, that the prisoner in the county of Henrico, “ feloniously and fraudulently, did take possession of a negro boy named John, a slave, the property of W. Richardson, and did, then and there, feloniously and fraudulently, remove the said slave beyond the limits of the said county of Henrico into…

Petition for a writ of error to a judgement of the corporation court of Petersburg. Anderson, a free negro, was tried for larceny in that court, sitting as a court of oyer and terminer, convicted, and sentenced to imprisonment in the penitentiary for five years. He was prosecuted and tried in the same manner as slaves are prosecuted and tried for the like offences, according to the provisions of the statute of 1831-2, ch. 22. § 11.

Petition for a writ of error to a judgement of the circuit superiour court of Henrico. Pendleton was indicted and tried there, for forging and counterfeiting a check in the name of Bagwell, Smith &/• Williams on the bank of Virginia, payable to Pendleton or bearer, for 200 dollars j and for passing and uttering the check as genuine, knowing it to be a forgery.

Christopher Roan, as well on behalf of himself as of the commonwealth, filed, in May 1786, a libel, in the court of admiralty, against the brigantine Tortola, a British vessel, Hugh Douglass, master, for a breach of the then revenue laws of the state, charging that the ship and cargo, belonging to a foreigner, arrived at Hampton, about the 17th of April, 1786; and that the master made a false entry of part of the cargo, by concealing three hogsheads of porter, two boxes and…

Joseph Darmsdatt instituted an action of trespass assault and battery against Benjamin Wolfe, in the Hustings Court of the City of Richmond. The capias was returned executed to August term, 1801; and a writ of inquiry awarded to the ensuing November term, when the plea of not guilty was put in by the defendant, issue joined, and the cause continued at his costs.

In this case these questions occurred: 1. Whether a conveyance by two of three executors, all of whom had qualified and were living, (the testator having directed the sale and conveyance to be made by his executors, in general terms,) was valid in law? 2. If it was not, could it be aided in equity? and, 3. If it could not, did the purchase-money, if paid, create a lien on the land, which would subject it in equity to the repayment of the money?

The question submitted to the Court, in this case, was, whether the decree, which was for the sale of some lands belonging to infants, to pay debts, should allow to them any time, after they came of age, to shew cause against it, as Commissioners were to conduct it.

The bill in this case was filed to recover some personal property in right of the wife, which she derived from her son, who died intestate, in April, 1787; her husband, the plaintiff, died, and then she died, and the suit was revived *upon the abatement thereof, in the name of his administrator. To this bill there was a demurrer.

The plaintiff was a member of a mercantile house in the County of Cumberland, trading under the firm of Goodrich, Eee & Co. and in May, 1801, they came to an agreement to continue in partnership until the end of that year, and then to be dissolved, which was publicly known in that part of the country.

<p>The bill in this case was filed to recover some personal property in right of the wife, which she derived from her son, who died intestate, in April, 1787; her husband, the plaintiff, died, and then she died, and the suit was revived *upon the abatement thereof, in the name of his administrator. To this bill there was a demurrer.</p>