Volume 48 — Virginia Reports

On the 26th of Rebruary 1844, Thomas R. Comer made his will, by which, after directing that his debts should be paid, he gave the whole residue of his estate, real and personal, to Rilen Rletcher; and he appointed Samuel H. Myers his executor.

*By deed bearing date the 7th day of November 1842, John C. Dickinson and Martha A. H. his wife, reciting that Dickinson was indebted to George N. Clough in the sum of 10,175 dollars 25 cents, by single bill of that date, payable on demand, which he was desirous to secure, conveyed to William T. Dickinson, Burwell B. Dickinson, and Beorí ard J. Clough, a tract of land in the county of Hanover, a tract lying partly in Caroline and partly in Spotsylvania, a moiety of a tract…

Henry Fairfax, of Prince William county, made his will, by which, after giving small legacies to several of his children, he gave the… Held: that by the true construction of the will and codicil of the testator, taken in connexion with the facts proved by the witnesses, the testator intended that the appellant, Hunter, should act as his executor in like manner, and on like terms as his wife and son, who were appointed executor and executrix, and were to qualify as such…

At the June term 1845, of the Circuit court of the United States for the District of Columbia, holden in and for the county of Alexandria, a decree was rendered in a cause therein depending, in which the Bank of Potomac and others were plaintiffs, and Bridget M’Laughlin and others were defendants, by which certain real estate in the possession of Bridget M’Laughlin was subjected to satisfy the claims of the plaintiffs against Edward M’Eaughlin; and commissioners were…

This was a motion upon notice by Hunter, administrator of Reid, to set aside a decree of this Court made at the April term 1845. The case is .reported in 2 Grattan 34. The ground of the motion was, that before the case was argued or decided, the appellee Strider had died.

<p>1. Equity Practice — Partnerships—Final Settlement— Errors on Face—Partners.—Under tile circumstances of the case, and after the time which had elapsed, the Court refused to enquire into errors which were alleged to appear upon the face of a final settlement of a partnership between the former partners. L</p> <p>2. Same—Same—Same—Case at Bar.—In a suit by the ex’or of one partner against the ex’or and his sureties of the other partner, under the circumstances, the sureties not allowed to set up a credit, which had been set up by the partner and again by his ex’or, and had been disallowed by the Court in both instances.</p> <p>3. Compromise—ignorance oi Facts—Efíect.—A party to a compromise entered into in ignorance of important facts connected therewith, not held hound by it.</p> <p>4. Same—Same—Payment of 'lore Than Bound to Pay-Recovery.—A party to a compromise entered into, in ignorance of important facts connected therewith, hinds himself to pay, and does pay, more than he was originally bound to pay. He is entitled to recover back the amount he has overpaid, with interest thereon from the time oi payment.</p> <p>*5, Equity Practice—Bonds—Application of Payments,*—A debtor by four bonds payable at successive periods, makes payments to his creditor, which upon a settlement after tile death of the debtor, are ascertained to amount to more than is sufficient to discharge the first bond. The creditor will not be permitted to apply the amount remaining after discharging the first bond as a credit upon tb e fourth; but the Court will apply it to the second bond in relief of a party bound as surety for the amount of the second bond.</p> <p>6. Same—Same—Same—Case at Bar.—A creditor by two judgments and a bond files a bill against the ex’or of his debtor, and obtains a personal decree against the ex’or for the whole amount. Upon an execution which issued upon this decree a part of the money is made. The judgments being debts of highest dignity, the money so made is to be applied as a credit upon them, in relief of a party who is hound as a surety for the judgments.</p> <p>7. Same—Same—Same—Judgments.—In this case the ex’or sells lands of his testator, and pays the proceeds to the creditor. As the judgments were liens upon the lands, the payments are to be applied as credits upon the judgments.</p> <p>The principal case is cited in Harner v. Price, 17 W. Va. 548, upon the subject of mistake.</p>

Dr. Gustavus B. Horner, late of the county of Fauquier, died in 1815. Held: that the charge of £ 500. upon Mrs. Whiting’s share of Dr. Horner’s estate should have been taken out of her share of the real and personal estate divided in 1826, the personal property being first set off against the said £ 500., and the balance of that sum being charged upon the land; that therefore Moore had a claim against George…

This was a suit in equity, instituted in September 1845 in the Circuit court of Bouisa county, by the administrator de bonis non with the will annexed, and children, of Garland Thompson deceased, against the administrators de bonis non with the will annexed, of Nathaniel A. Smith deceased, his widow and children, and others.

This was a suit in equity in the Circuit court of Brunswick county, by Thomas R. Trotter and wife against Benjamin Wilkinson, administrator of Clement Mitchell deceased, the father of the female plaintiff, for a settlement of his administration account, and for a decree for the amount which might be ascertained to be due to the plaintiff. The accounts were referred to a commissioner, who reported thereon; and there was a single question of controversy between the parties.

<p>Court of Appeals—Statute Regulating Jurisdictional Amount—Retrospective Effect.*—Tb e act in the Code limiting appeals to the Court of appeals to $200, applies to cases decided before the act went into effect, where the application for an appeal is made since.</p>

This was an action of debt in the Circuit court of Goochland county, brought by WiHiam T. Toler, administrator of William Toler deceased, against Tarlton Fleming and John B. Pemberton.

*A marriage being about to occur between John H. Lee and Elizabeth Prosser, and she being entitled to a considerable estate, real and personal, by bequest from her father, the parties entered into articles under seal, bearing date the Sth day of December 182S, by which it was agreed between them, that all the estate, real and personál, to which the said Elizabeth was entitled should be secured to and settled upon her and her heirs.

This was an action of assumpsit, brought in the Circuit court of Mecklenburg county by J. J. Daly, assignee of J. Murray Yates, a bankrupt, against Henry Tucker. On the trial the jury found a special verdict, which set out the following facts, viz; That the defendant received from John G. Oliver the sum of 470 dollars 86 cents, that being the amount of a bond executed by Oliver to J. Murray Yates.

This was an action of debt, brought in the Circuit court of law for the county of Henrico and the city of Richmond, by the United States Mining Company, against Crump and Uiggon. It was one of twenty-eight actions brought by the same plaintiffs against certain subscribers to the stock of the company, for arrears due upon their stock. All the cases turned upon the same questions, and were submitted to the same jury.

<p>1. Appeals—Bond Not Given within Prescribed Period —Effect.*—Upon an appeal to the Court of appeals, from a final judgment, decree or order. If the appeal bond is not given within five years from the date of the said judgment, decree or order, the appeal will be dismissed.</p> <p>2. Statutes—Construction.†—A case in which there has been a final decree is not a pending suit in the sense of the Code, ch. 16, § 18, p. 101, and ch. 216, § 2, p. 800.</p> <p>3. Statute of Limitations - Pro viso — Applicable to What.—The proviso in the act for limitation of suits as to rights existing when the Code takes effect, ch. 149, § 19, p. 549, is restricted to actions and rights barred by that chapter; and does not extend to the law limiting and regulating appeals.</p>

Anne M. G. Magagnos was a French woman who came to this country some time before 1807. At that time she lived in Norfolk, where she kept a clothing store, by which she made a considerable property. She returned to France in 1818, and died in 1826, at Marseilles. ^Shortly before her death she made her will, which was written in French, and was duly proved in France; and in August 1827 a copy properly authenticated was admitted to record by the Borough court of Norfolk.

<p>This was an action of assumpsit, brought in the Circuit court of Buckingham county by Peyton, Deane & Edwards against Peter B. Stratton and three others, surviving partners of the firm of Bancaster, Stratton & xCo. On the trial after a number of exceptions had been taken, in which all the evidence was stated, there was a verdict for the defendants. The plaintiffs thereupon asked for a new trial on the ground that the verdict was contrary to the evidence; but the Court overruled the motion, and the plaintiffs excepted. In this bill of exceptions the Court certified all the evidence stated in the previous bills of exceptions as to the facts proved.</p> <p>It appears from the evidence that Ban-caster, Stratton & Co. were partners and millers doing business at Curdsville in the county of Buckingham ; and that Peter B. Stratton was the managing partner. The business was commenced in the spring or summer of 1838, and Nathaniel Bancaster one of the partners died on the 19th of March 1841; but the business was continued until the 30th of June of that year.</p> <p>In the year 1838 Peter B. Stratton commenced business as a merchant at Curds-ville, in his own name; and in September 1839 he formed a partnership with Richard A. Booker, under the name of Stratton & Booker, which was continued until September 1841.</p> <p>Peter B. Stratton being the acting partner in both concerns, and the books of Bancaster, Stratton & Co. being in fact kept in his storehouse, he purchased the grain manufactured at the mill of Bancaster, Stratton & Co. paying for it sometimes by goods out of his store or the store of Stratton & Booker, and at others by his own money or his own note, or by the proceeds of the flour manufactured. This flour was shipped to the plaintiffs Peyton, Deane & Edwards, commission merchants in Richmond; and Peter B. Stratton drew upon them for the proceeds of it, either in his own name or the name of Bancaster, Stratton & Co., as suited his own convenience.</p> <p>The books of Bancaster, Stratton & Co. shewed that when Peter B. Stratton purchased grain for them and xpaid for it out of his store or the store of Stratton & Booker, Bancaster, Stratton & Co. were charged with the amount paid for them; and when Stratton drew on Peyton, Deane & Edwards on his own account, Bancaster, Stratton & Co. were credited with the amount so drawn. In the account rendered to this firm by the plaintiffs, there is, under the date of Eebruary 4th, 1840, a charge by the plaintiffs to them, of 4222 dollars 43 cents, being a transfer of that sum from the account of Peter B. Stratton to the account of Bancaster, Stratton & Co. To this charge the other members of the partnership made no objection; and at this time the books of the firm shewed that Bancaster, Stratton & Co. were debtors to Peter B. Stratton to this amount. Again, there is in the account of the plaintiffs with Bancaster, Stratton & Co. under date of July' 15th, 1841, a charge of 10,646 dollars 42 cents in like manner transferred from the account of Peter B. Stratton to the account of Bancaster, Stratton & Co. This sum it was ascertained afterwards, was more than Stratton or Stratton & Booker were in advance to Bancaster, Stratton & Co., and the excess was returned: yet leaving Bancaster, Stratton & Co. debtors to Peyton, Deane & Edwards as appeared by the books of the former in the sum of 8252 dollars 26 cents, on the 1st of July 1841. Of this sum there does not seem to have been any doubt but that it was due to Peyton, Deane & Edwards from one or the other of the parties; and the question in the cause was whether Peter B. Stratton was authorized, after the dissolution of the partnership of Lancaster, Stratton & Co. by the death of Nathaniel Lancaster, in March 1841, to substitute them as the debtors of Peyton, Deane & Edwards in the stead of Stratton & Booker, whilst he credited them with Stratton & Booker for the same amount.</p> <p>The Court having refused a new trial, and rendered a judgment upon the verdiet for the defendants, the *plaintiffs applied to this Court for a supersedeas, which was awarded.</p>

In September 1837, the administratrix of David Elmore deceased, instituted an action of debt against the executor of Eyddal Bowles deceased, in the Circuit court for the county of Henrico and city of Richmond. The action was founded on a promissory note_ for 350 dollars, alleged to have been executed by Bowles to Elmore xon the 13th of June 1817 ; and which note was then in the possession of the defendant.

In February 1829, John Y. Archer filed his bill in the late Superior court of chancery for the Richmond district, in which he stated that… Held: 1st. That the decree of June 1832, so far as it related to the slaves mentioned in the bill of sale from John R. Archer to Frances Tabb, and their increase, was binding on the Court, and on the parties to this suit; and that the said slaves having been by said decree ordered to be delivered up to a trustee, and having been actually…

Elizabeth Cregor was indicted for adultery with James Cole, in the Circuit court of Wythe county, at the April term of the Court for 1849. On the trial, the jury rendered the following verdict: “We find upon the evidence of one credible witness that the defendant is a married woman; That within twelve months previous to the finding this indictment, she habitually bedded with James Cole in the indictment mentioned, as man and wife, the said Cole not being her husband.

<p>At the April term for 1849, of the Circuit court of Grayson county, Jarvis C. Bacon, a free person, was indicted for that on the 26th of March 1849, he did by speaking, maintain that owners have not right of property in their slaves. On the trial the jury found him guilty, and assessed his fine at 49 dollars 62% cents. Whereupon he moved the Court for a new trial.</p> <p>Upon this motion the Court below certified the facts proved upon the trial as follows : That the defendant, who is a minister of the gospel, on Sunday before Christmas 1848, in the county of Grayson, preached a sermon from the text in the New Testament: “Ye are the salt of the earth,” or “Ye are the light of the world. ’ ’ That he proceeded to point out the duty of Christians, and in the conclusion of his discourse, after citjng a ^passage of scripture which related to the overthrow of the tables of the money changers in the temple, said that those persons, (alluding to the money changers,) were pronounced by our Saviour, thieves and robbers; and then observed that there were thieves and robbers in the church at this day. In illustration of this view, the defendant said: “If I was to go to my neighbour’s crib and steal his corn, you would call me a thief, but that it was worse to take a human being and keep him all his life, and give him nothing for his labour, except once'in a while a whipping or a few stripes.” Defendant did not mention the name of slave owners or masters of slaves at any time during his discourse; but witness stated that he understood these remarks to refer to slaveholders. These were all the facts proved; and thereupon the Court adjourned to this Court the question:</p> <p>Ought this Court to grant a new trial in this cause?</p>

This is the sequel of the case reported in 6th Grattan, p. 712. The prisoner was again tried at the June term of the Circuit court of Culpeper county for 1850, when he was again found guilty of murder in the first degree, and sentenced to be hung. The prisoner moved the Court to set aside the verdict and judgment, on the ground that the verdict was contrary to the evidence ; but the Court overruled the motion.

At the June term 18S0 of the Circuit court for the county of Augusta, the grand jury found an indictment for arson against Martin Curran and eight others.

*The defendant was presented on the 8th November 1848, in the Circuit court for the county of James City and the city of Williamsburg-, for unlawfully assaulting and beating Samuel S. Griffin, on the 9th of September 1848, in the city ol Williamsburg, within the jurisdiction of the Court. And it was thereupon ordered that the defendant should be summoned to appear on the first day of the next term, to answer the presentment; and process was awarded accordingly.

Frederick B. Hunter was indicted for burglary in the Circuit court of Bee county, jointly with Thomas Hardy. There was also a count in the indictment charging Hunter with counselling, hiring and procuring the *said Hardy to commit the offence. The indictment charged the offence to have been committed on the night of the 23d of October 1848, by breaking and entering the house of Nancy Rogers, and taking therefrom some 1400 dollars in money, besides other things.

This is an application to this Court for a writ of habeas corpus by Alonzo G. Bell. It appears that he was arrested in the county of Campbell in March 1850, on a charge for horse stealing. At the May term of the County court he was examined, and sent on for further trial before the Circuit court.

*In April 1851, Henry T. Perkins was indicted for forgery, in the Circuit court of law for the county of Henrico. The first count of the indictment set out the paper which was charged to have been forged, which was as follows: “$4000. Seven Islands, Fluvanna County, December 10th, 1850.

<p>George Lfivingston was indicted in May 1851, in the Circuit court of Petersburg, for larceny in stealing three gold chains and a ring, of the goods of John B. Stevens and Thomas R. Hopkins, jewellers, in the city of Petersburg, trading under the firm of Stevens & Hopkins.</p> <p>After the evidence had been introduced, the counsel for the prisoner in his argument before the jury, insisted that the gold chains and the ring charged in the indictment to be the property of John B. Stevens and Thomas R. Hopkins, jewellers, in the city of Petersburg, trading under the firm and style of Stevens & Hopkins, had not been proved to be the property of said Stevens & Hopkins, as laid in the indictment. And the attorney for the Commonwealth in his reply to that part of the argument, contended that it had been so proved. The jury retired, and not being able to agree in their verdict, were adjourned over to the next day; and upon being brought into Court the next morning, the counsel for the prisoner moved the Court to instruct the jury, “that if they believe from the evidence that the Commonwealth has failed to prove the existence of the copartnership of Stevens & Hopkins, and that the property was in them as partners as alleged in the indictment, then they must acquit the prisoner, the burden' of proof being on the Commonwealth to shew these facts.” Whereupon the attorney for the Commonwealth proposed *to call upon John B. Stevens, one of the witnesses examined on the day before, to prove more explicitly the ownership of the property as laid in the indictment. To the' introduction of this proof or any other at this stage of the trial, the prisoner objected ; but the Court overruled the objection, and permitted the said Stevens to be again examined: And he proved that the gold chains and the ring were the property of Stevens & Hopkins as laid in the indictment. The Court thereupon refused to give the instructions asked for by the prisoner in the form in which they were propounded, but instructed the jury “that if they should believe from the whole evidence in the cause, as well that given in on yesterday as that given in to-day by the said Stevens, that the Commonwealth had failed to prove that the gold chains and ring or any part of them, were the property of John B. Stevens and Thomas R. Hopkins, jewellers, in the city of Petersburg, trading under the firm of Stevens & Hopkins, as laid in the indictment, then they ought to find the prisoner not guilty; it being incumbent on the Commonwealth to prove the ownership as laid in the indictment. ” And the Court certified the evidence given in on the day before, from which it was obvious, that if the joint ownership of the property and the. partnership of Stevens & Hopkins were not proved by the witnesses, it was only because the fact was not made a question. The witnesses were Stevens and two of the clerks in the shop. The clerks proved a taking from the shop; they proved that not knowing the price of a chain which the prisoner was proposing to buy, one of them was sent by the other to ask Mr. Hopkins the price, he being in another room. And when Mr. Stevens came into the shop, he was immediately informed that the prisoner had taken a gold chain, and he, and the witness by his directions, went in pursuit of him.</p> <p>*The prisoner excepted to the opinions of the Court admitting the evidence and refusing the instruction as asked. And the jury having found him guilty, and fixed the term of his imprisonment in the penitentiary at eighteen months, and the Court having given judgment against him accordingly, he applied to this Court for a writ of error.</p>

*John P. Dye was indicted in the Circuit court of Harrison county, at its June term for 1847, for that he “did then and there knowingly and wilfully without lawful authority, take and carry away two hogs of the value of five dollars, then and there belonging to Benjamin Stout,” &c. The defendant appeared and moved the Court to quash the indictment, for errors apparent on its face; the error being the omission of the words “but not feloniously ; but the Court overruled the…

Simeon Souther was indicted at the October term for 1850, of the Circuit court for the county of Hanover, for the murder of his own slave. The indictment contained fifteen counts, in which the various modes of punishment and torture by which the homicide was charged to have been committed, were stated singly and in various combinations.