Volume 69 — Virginia Reports

These two cases are substantially the same, and were heard together in this court. The subject of controversy in the cases is the note for $8,000 given by Solomon Myers to Samuel Strong, which was one of the subjects involved in the case of Myers v. Ould & Carrington, reported in 28 Gratt. 383.

This is a writ of error to a judgment of the circuit court for the city of Alexandria, rendered on the 25th-day of May 1875, in an action of covenant, wherein the plaintiff' in error, Orlando Fairfax, was plaintiff', and the defendant in error, The City Council of Alexandria, was defendant.

<p>The facts are stated by Judge Christian in his opinion.</p>

<p>The following papers were offered for probate :</p> <p>No. 1. “I, Elizabeth S. Holmes, do make the following as my last will and testament. I give all my estate, both real and personal, to my • two sisters, Margaret and Sally. Written and signed by me this 16th day of April, 1851.” About an inch below, and on the same sheet of paper, is written No. 2. “As Margaret is dead, I give her share to my niece, Lizzie Leigh Gibson.”</p> <p>“Dec’r 31, 1871.” “E. S. Holmes.”</p> <p>No. 1 is not in the hand-writing of the decedent, nor signed by her. The body of No. 2, and the signature thereto, are wholly in the handwriting of the decedent&emdash;Held: Neither No. 1, nor No. 2, nor both together, can be established as a will under the Virginia Statute of Wills. Code of 1873, ch. 118, g 4. •</p>

<p>I. H recovers a judgment against M, and dies. Subsequently M conveys land, &c., to C, to secure two bonds held by W, and this deed is recorded. The administrator of H files a bill against C and W, in which he charges that C and W had notice of the judgment of H when the deed was executed, and that the debts secured by the deed are not bona fide. C and W answer, denying the notice, and insisting the debts are bona fide. C and W are examined as witnesses in their own behalf, and C is cross-examined on all the issues by the plaintiff, with a knowledge at the time of the objection to his competency; and after the testimony of C and W is ended, plaintiff excepts to the competency of each of them, on the ground that H was dead—</p> <p>Held :</p> <p>1. The plaintiff having cross-examined C on all the issues in the cause, that was a waiver of the objection to his competency; and it cannot afterwards be made.</p> <p>2. Qtlere. If permitting the examination of W in chief without objection before it is done, is a waiver of the objection to his competency.</p> <p>3. The charge of notice of thé judgment being expressly denied by C and W, the proof of notice must be very clear and conclusive to establish it.</p> <p>4. Though the evidence is contradictory, if the chancellor is satisfied that the weight of evidence is on one side he is not bound to direct an issue.</p>

This was a petition filed in the circuit court of the city of Richmond, by Henry Hauenstein and others, claiming to- be the heirs and next of kin of Solomon Hauenstein, deceased, seeking to recover certain real estate of which the said Solomon Hauenstein had died seized, and which had been escheated to the commonwealth.

<p>I, There were nine children tenants in common of slaves subject to the life-estate of their mother. One of them, J, by his will gives to his brother IC certain lands, plantation utensils, “ and all the interest I may have in an undivided dower estate.” J’s widow marries T, and T buys the shares of six of the children, one of them K, and he buys, of the husband of N, one of the children, her share; but her husband dies in the lifetime of N, and her mother. K dies, and gives her interest under the will of J to Y. T sells two of the slaves to M, and M afterwards sells them and the increase of one of them for $960. T and his wife have removed from the state. After the death of the life tenant, S, who had not sold her interest in the slaves, files her bill against M, making N and Y defendants, setting out the facts, and claiming her interest in the slaves sold to M&emdash;Held :</p> <p>1. M not producing the slaves, he must account for the price at which he sold them, with interest from the death of the life-tenant.</p> <p>2. The husband of N having died in the lifetime of the life-tenant, his sale of her interest is invalid, and N is entitled to it.</p> <p>3. The bequest of K to Y vests the interest of J in the slaves in Y.</p> <p>. 4. It was not necessary that N and Y should file a cross-bill in the cause in order to set up their claims against M.</p>

<p>I. A policy of insurance on a building insures K and his legal representatives. The building having been burned after the death of K, his administratrix may maintain an action on the policy.</p> <p>2. One of the conditions of the policy is, that it shall be void “if the title of the property is transferred or changed.” This does not apply to the descent of the property on the death of the assured to his heirs.</p> <p>3. A.condition in a policy that the entry of a foreclosure of a mortgage shall be deemed an alienation of the property, and avoid the policy, . does not involve a sale under the decree of the court in a creditor’s bill against the heirs, &c., which sale is set aside by the court.</p> <p>4. One condition of a policy is: Any change within the control of the assured material to the risk shall avoid the policy. The change here referred to is a change in the condition of the property, wrought by the agency of the assured, and not the mere vacation of the'house by the assured or its occupants.</p> <p>5. A condition of the policy is, that the policy shall be vitiated if the premises insured become vacated by the removal of the owner or occupant for a period of more than twenty days without immediate notice to the company and written consent—Held : It was competent for the insurer or his lawful agent to waive this condition; and if at the time the agent of the company received the premium of insurance and delivered the policy he had knowledge of the vacation of the property, and did not then avoid the policy, but treated it as valid and subsisting, such conduct of the agent was a waiver of the condition, and a breach of it cannot be relied on by the company to defeat a recovery upon the policy.</p> <p>6. As to waivers by the insurers of conditions in a policy, how and by whom they may be made, see the opinion of Burks, J.</p> <p>7. A condition of the policy required immediate notice of loss, and that within thirty days the insured render a particular account thereof with an affidavit, &c.—Held : If the insurers, from any reliable source, knew that the building insured had been destroyed by fire, and any act or declaration of theirs, or of their lawful agent, prevented the assured from preparing the schedule with the affidavit thereto required by the policy within the thirty days, whether verbally or in „ , . . , .... . writing, it was a waiver of the performance ot the condition within the thirty days of that condition; and the omission to do so is no bar to the action on the policy, provided it was done within a reasonable time thereafter.</p> <p>•8. If at the time of issuing a policy I had been authorized by the insurance company to receive and accept proposals for risks, subject to their approval and ratification, to issue and deliver policies and renew the same, and receive premiums therefor, and had been supplied with blanks signed by the president, to be filled and countersigned by him; this constituted I the general agent of the company, and the company is bound by all his acts as such within the scope of his authority, so long as it existed, notwithstanding any private instructions which he may have received limiting that authority, of which the assured had no notice.</p>

<p>-By agreement between the United States government and the owner of land, the government erects buildings on the land, intended to be and actually used by operatives employed by the government in dressing stone to be employed in the erection of public buildings at Washington) and under the agreement the government has the right to remove the buildings—-Held :</p> <p>1. The buildings are personal property.</p> <p>2. The buildings being the property of the United States, the state cannot tax them either as personal property or as parcel of the land on which they are built.</p> <p>3. When buildings put up on the land of another are exempted by law from taxation, they should not be valued with the land, and the owner of it is not to be charged with their value as part of his land subject to taxation. But where such buildings are not exempt from taxation, they should be valued and the tax charged to the owner of the land.</p>

<p>Under the constitution and statute of Virginia, a party who has aided and assisted in a duel fought with deadly weapons may be removed from office by a proceeding by quo warranto, or, if that writ be not in use, by information in the nature of a quo warranto, though he has not beenconvicted of the offence in any criminal prosecution against him.</p>

<p>1. In a suit by a judgment creditor to subject the real estate of his debtor *° ^is where there are deeds of trust on the property and numerous judgments against the debtor, which are to be ascertained and their priorities fixed, and the real estate is not sufficient to pay all the debts, the court may appoint a receiver to take possession of the property and rent it out.</p> <p>2. A receiver may be appointed by the judge in vacation.</p> <p>3. A receiver may be directed to collect from tenants of the real estate rents due as well as such as may become due.</p>

This was a suit in equity in the circuit court of Charles City county, brought in April 1868, by Henry D. Vaiden and Sarah M. his wife and others, devisees and legatees of John S. Stubblefield, dec’d, against Thomas H. Wilcox, executor of said Stubblefield, and on his death revived against his executor, for a settlement of the administration account of Wilcox upon the estate of said Stubblefield.

<p>1. While the giving of a check by a debtor to a creditor is generally presumed to be only a provisional or conditional payment of the debt for which it is given, yet such check may by agreement of parties, be given and received in full payment and absolute discharge and satisfaction of the debt; and whether it was so given and received is a question of fact for the jury.</p> <p>2. A check may be offered in evidence under the money counts; and if there is no other evidence in the case, it is of itself sufficient to entitle the plaintiffs to recover on those counts: yet it is only prima facie evidence of money lent, paid and advanced, or had and received; and when it is proved that no money had come to the hands of the defendant, the presumption raised by the check is rebutted, and no recovery can be had on those counts.</p> <p>.3. Where an action of assumpsit is brought for goods sold and delivered, the declaration filed contains only the common counts, the bill of par.ticulars is filed, and the only count in the declaration to which the evidence applied, was that for goods sold and delivered. If it is shown that the goods were absolutely paid for by a check, the demand upon the account is thereby extinguished, and there is no count in the declaration upon which the plaintiffs can recover.</p> <p>.4. Where the facts proved are not plainly insufficient to warrant the verdict of the jury, the court did not err in refusing to set it aside.</p> <p>Quare: Whether under the evidence in this case the action could have been maintained on the check if it had been specially declared on.</p>

<p>x. Where real estate has been sold under a decree in a cause, and the sale has been confirmed, the purchaser is entitled to the possession of the property, even though the decree confirming the sale does not direct possession to be delivered to him.</p> <p>2. If an appeal in the cause has been obtained and perfected before possession of the property is obtained by the purchaser, he is not entitled to have possession. But if possession is obtained before the appeal is perfected, the purchaser is entitled to retain it until the case is decided in the appellate court.</p>

Wiltshire Cardwell filed his bill in the circuit court of Prince Edward county, and obtained an injunction to prohibit Edgar Allan, the trustee in a deed of trust executed by Cardwell and wife, from selling certain real estate conveyed in said deed to secure two negotiable notes held by the English and American Bank atEarmville, Ya. The penalty of the injunction bond was five hundred dollars.

In October 1872 Edward W. Henry, Sen., of the county of Charlotte, departed this life, having made his will and a codicil thereto, which… Held: that the event had occurred upon which the testator, by the codicil to his will, provided for the forfeiture of Mrs. Lewis’ interest, in his estate, and she had no interest therein beyond the advancements to her by the testator in his lifetime; and that the portion which had been willed to ■her passed to the other children mentioned…

<p>The cases are stated by Judge Burks, in his opinion.</p>

This was a suit in equity instituted in the circuit court of Halifax county, by David H. White and others, grandchildren of James McOargo, to have a construction of the will of said McOargo.

This was a suit in equity in the circuit court of Fauquier county, brought in February 1868 by E. T. 'Cooper, of Baltimore, to enforce the execution of a. deed of trust executed in July 1866 by Charles H. TJtterback, by which said TJtterback conveyed to R. W. L. Rasin a tract of land in the county of Fauquier, in trust to secure to Cooper the payment of a note of' $11,000.

This was an action of covenant in the corporation court of the city of Norfolk, brought by William J. Bidgood against the Brooklyn Insurance Company, to ■recover an amount which he claimed to be due to him for his services as general agent of the said company 'in a prescribed part of Virginia. The pleadings in the case were very voluminous; but no question upon them was considered by this court.

<p>1. The plaintiff in a suit of interpleader continues to be a substantial and necessary party until he has fully rendered the debt, duty or other thing required of him.</p> <p>2. P filed a bill of interpleader in the circuit court of Richmond against various persons, made parties defendants, of whom some were citizens and residents of Virginia, others of Pennsylvania, and others of states other than either Virginia or Pennsylvania. The defendants, who were citizens and residents of Pennsylvania, answered the bill, and at the same time filed their petition in due form for the removal of the cause from the state to the Federal court&emdash;Held: Whether.P is regarded as a substantial or as a mere nominal party, there is no right of removal either under the act of congress of March 2, 1867, or of July 27, 1866.</p> <p>3. Upon the trial of an issue directed in the said suit, a deposition of one M, who was then dead, was offered, whereby it was sought to show that L, one of the defendants, in the presence of W, another of the defendants, had, in an interview -at Richmond, made to M certain admissions material to the issue. These two defendants were strangers to the witness, and on cross-examination describing them he said: “ They were not black negroes. I think the brother-in-law had the lightest skin of the two. I think they were not bright mulattoes, but dark mulattoes.” It was proved by other witnesses that the brother-in-law spoken of (W) was a white man, and that L was so. bright that he could hardly be distinguished from a white man. It was further proved that about the time at which the witness said he had the interview with the two men they were both in Richmond inquiring for him. Upon an objection to the reading of the deposition on the ground that the witness did not sufficiently identify the persons whose admissions were sought to be proved by him, it was held that the evidence was prima facie sufficient to authorize the deposition to go to the jury.</p> <p>4. On trials before a jury, when the evidence on both sides has been closed, and the argument has commenced, as a general rule no fur - ther evidence should be received from either party; but the presiding judge, in the exercise of a sound discretion, may relax the rule and admit additional evidence, if the nature of the case and the ends of justice require it; but if the introduction of such additional evidence take the adverse party by surprise, he should be allowed time and opportunity if desired, to meet it with further evidence on his side.</p> <p>5. Whenever the character of a witness for truth is attacked, either by direct evidence of want of truth, or by cross-examination, or by proof of contradictory statements in regard to material facts, or by disproving by other witnesses material facts stated by him, or, in general, whenever his character for truth is impeached in any way known to the law, the party calling him may sustain him by evidence of his general reputation for truth.</p>

This is a supersedeas to a judgment of the circuit court of the city of Petersburg, rendered on the 4th day of June 1873, in an action of trespass on the case brought by William Applegarth against the city of Petersburg. The declaration contained four counts.

<p>In an action on a bond by the assignee of a deceased obligee, the obligors are incompetent witnesses to testify in their own behalf under the statute. Code of 1873, ch. 172, § 22.</p>

By a memorandum of agreement under seal bearing date the 12th of March 1844, between Daniel Hitt of the first part, Robert McArtor of the second part, and Richard De Butts of the third part, all of the •county of Fauquier, it was witnessed that De Butts had sold to Hitt and McArtor, to be equally divided between them, two parcels of land containing three hundred and nineteen acres, at $50 per acre.

This was a suit in equity in the circuit court of Charlotte county, brought by Paul Y. Adams, committee of Meriwether Cole, a lunatic, against the ad-, ministrator of Walter W. Cole, deceased, a former committee of the lunatic, for a settlement of the account of said Walter W. Cole. The only matter of controversy in the circuit court seems to have been whether Walter W. Cole was entitled to a credit for $1,000, invested under an order of the judge in a Confederate bond.

This was a suit in equity in the circuit court of Charlotte county, instituted in 1861, by William J. Watkins, suing for the benefit of his trustees, against Allen W. Elliott and Charles 0. Henderson’s administrator, to have an account between them settled. It appears that Watkins had made a contract with Henderson, by which Henderson sold to Watkins the timber on a certain part of Henderson’s land, which Watkins expected to saw up for certain purposes.

This is a supersedeas to a judgment of the court of hustings for the city of Portsmouth, rendered on the 27th day of October 1871, in an action of ejectment in which William H. Thomas was plaintiff, and Robert Jones defendant. The action was brought for a parcel of land in said city, described in the declaration. The defendant put in the plea of not guilty, on which issue was joined, on which issue a verdict and judgment were rendered in favor of the defendant.

'This was an action on the case in the corporation court of the city of Norfolk, brought by Wiell & Ullman, against the Manhattan Fire Insurance Company,, to recover the-amount of the insurance on a house in said city which' had been consumed by fire.

This was a bill filed in the circuit court of Bedford county, by John B. Harding, to subj'ect a certain tract of land in the possession of H. B. Floyd, as trustee of his wife Ellen S. Floyd, to a judgment which had been recovered by Green B. Board against J. M. W. Leftwich, the plaintiff, and two others, on a negotiable note, in which said Leftwich was maker, and the plaintiff and the others were endorsers; and which the plaintiff had satisfied.

This was an attachment in equity in the circuit court of Mecklenburg county, brought in March 1873 by John R. Hicks against C. B. Riddick, J. A. Moss and others. The plaintiff charged in his bill, that Riddick, who lived in North Carolina, was indebted to him by bond in the sum of $4,000; that he owned a house and lot in Clarkesville, in the said county, which he prayed might be subjected to pay his debt, and that J. A. Moss was in possession of the property.

<p>I. The docketing of a judgment is an act to be done to preserve or prevent the loss of a civil right or remedy, within the meaning of the acts of March 4, 1862, acts of 1861-2, ch. 81, and of March 2, 1866, Code of 1873, ch. 146, §§ 6 and 7, p. 998-99. And therefore in computing the time within which a judgment is required by § 8, ch. 186, of the Code of i860, to be docketed, in order to preserve the lien of such judgment against purchasers, the period between the 17th of April 1861 and the 2d of March 1866 is not to be computed as a part of such time.</p> <p>II. An executor who conveys land with special warranty, who is not a party to the suit, and has no interest in the result of it, or in the record as an instrument of evidence, is a competent witness to prove the facts in relation to his sale and conveyance of the land, in a contest between the creditor of his grantee and a purchaser from him.</p> <p>III. T an executor, employs R, to sell a tract of land for him, and to facilitate it, T executes a deed to R, but does not deliver it. R makes a sale to B, and B pays the money to T, and then T delivers the deed to R, and at the same time R executes a deed to B. In a suit by a judgment creditor of R against B, to subject the land to pay his debt &emdash;Held :</p> <p>1. T is a competent witness to prove the fact that R sold as his agent, that the conveyance to him was that he might convey to B,°and that B paid the purchase money to him.</p> <p>2. By the conveyance to R there was an implied or resulting trust in favor of B, who had paid the purchase money; and this trust may be proved by parol evidence,</p> <p>3. The trust having been fully executed by R conveying the land to B, before this litigation was commenced, it seems, that on that ground parol evidence is admissible to establish the trust.</p> <p>4. R being dead, B is not a competent witness in his own behalf, as to the sale and conveyance of the property. ■</p>

This is the sequel of the cases of Corbin Sp als. v. Mills’ ex’ors, and Lancaster The executors, Mills and Howison, filed their answer in the first suit, substantially the same as the-answer to the original bill. The purchasers of the street property also answered, insisting on the full price they had paid for it, having been more than enough to have bought the gold to pay the full value of the property before the war, and insisting that their title wag valid.

This is a writ of error to a judgment rendered on the 3d day of February, 1873, by the circuit court of the city of Richmond in an action of assumpsit brought in said court by David W. Moore against the Virginia Fire and Marine Insurance company of Richmond, on a policy of ■ insurance. Issue was joined on the plea of non assumpsit, and leave was given to introduce any evidence under that plea that could be introduced under any special plea.

This case was heard in this court, as well as tried in the court below, together with the preceding case. It is sufficiently stated in the opinion of the court.

This was a proceeding by Stuart, Buchanan & Co. to recover from the county of Dinwiddie the sum of $3,695.30, the price of salt delivered to the .agent of said county in 1862. This salt was purchased under the authority of an act of the general assembly of Virginia, which is set out in the opinion of Judge Christian.

<p>I. The application to an insurance company for insurance upon a building which is granted and a policy issued based upon the application, is a part of the policy.</p> <p>II. In such an application, one question is whether there are any incumbrances on the property, to which the answer is none. This is a warranty,' and if there was an incumbrance upon it, the policy is not binding upon the company, unless at the time of issuing the policy they had actual knowledge of the existence of such incumbrances. .</p> <p>III. If, after the answers to the questions are written in the application it is signed by the applicant, parol evidence is not admissible to prove that he did not read the application, and no question was asked him as to the existence of incumbrances upon the property.</p> <p>IV. The insured had taken out two policies upon two buildings, which were consumed in the same fire. The company paid one of the policies, but determined to contest the other. In calling for the payment of assessments upon premium notes, the secretary of the company by mistake, called for the assessment on the note of the policy which was contested, instead of upon the other, and it was paid&emdash;Held :</p> <p>1. If the company knowingly received the assessment with knowledge of the existence of the incumbrance, this would be a waiver of the breach of the warranty whether so intended or not.</p> <p>2. But if the company received such assessment under the erroneous idea on the part of its officers that it was paid upon another and totally different note, the right to insist upon the forfeiture would not be in the least affected by such payment and receipt.</p>

This was an action of assumpsit in the corporation court of Alexandria, brought by Isaac Tancil against. George L. Seaton, to recover the amount of a National Bank note for $1,000, deposited by the wife of the plaintiff with the defendant. The facts are stated by Judge Burks in his opinion. In the progress of the trial, the plaintiff asked for two instructions, which were refused; and the defend-' ant asked for three, which were given; and the plaintiffs excepted.

<p>I. A decree which overrules certain exceptions to a commissioner’s report, and confirming the report as to the questions involved in these exceptions, is a decree settling the principles of the cause as to these questions, from which the party excepting may appeal, although the report is recommitted to the commissioner as to other matters involved in other exceptions.</p> <p>II. In i860, G, of Washington city, and B, of Culpeper county, in Virginia, form a partnership for grazing and selling sheep, to be conducted by B; and G executes his bond to B for $3,700, for a half interest of the sheep on hand, which is to be paid by G’s share of the net profits; and B is to be allowed such compensation for managing the business as they shall agree upon. The partnership is closed in December 1862, when G’s share of the profits is $2,428.75. B invests the money in Confederate bonds.&emdash;Held :</p> <p>1. G is entitled to have his bond credited for the $2,428.75, at its scaled value in December 1862.</p> <p>2. As the parties were separated by the war, so that they could not agree upon B’s compensation, he is entitled to have a just allowance made him for his attention to the business.</p>

<p>C obtained a judgment against B and P, as partners trading under the firm of B & Co. He delivered an abstract of his judgment to the clerk of the county court of the county, wherein there was a tract of land belonging to P; and the same was properly entered by the clerk in the body of the judgment docket, but was not indexed in the name of P, but merely in the name of “ B & Co.” ■ Subsequently P sold and conveyed his land to O, who had no knowledge of C’s judgment. Upon a bill filed by C, to subject the land in the hands of O to the lien of his judgment.—Held: That under ch. 186, $ 4, 8, Code of i860, indexing was not a necessary part of the docketing, and that the land was therefore subject to the lien of C’s judgment.</p>

This was an action of debt in the circuit court of Mecklenburg county, brought by Robert Y. Overby’s executors, and afterwards revived in the name of his administrator de bonis non, &e., against the executors of John Lewis. The plaintiffs declared upon a writing obligatory for $1,800, executed by John Lewis and. James E. Haskins. The defendants filed the pleas of “payment,” and “non est factum.” The paper declared on was aB follows: Dolls. $1800.

This ease was heard at Richmond, but was decided •at Wytheville. It was an action of assumpsit in the circuit court of Spotsylvania county, brought in December 1878, by William R. Duerson, executor of Robert O. Duerson, deceased, against the Connecticut Mutual life insurance company, to recover the amount of two policies of insurance upon the life of the said Robert Duerson issued by the said company.

<p>1. There is no statutory bar to the time within which a petition may be-filed to correct error in an interlocutory decree.</p> <p>2. Whether in such case a rehearing shall be granted, depends upon the sound discretion of the court upon all the circumstances of the case.</p> <p>3. The motion to correct error in a judgment or decree by default given by ch. 177, § 5 (Code of 1873), *s barred after the lapse of five years from the date of the judgment or decree.</p> <p>4. That statutory remedy is, however, cumulative, and has not superseded or abolished petitions for rehearing, which may still be had, according to the course of equity, in the same manner as before the enactment of that statute.</p> <p>5. Though the motion here, if treated as made under ch. 177, g 5, is barred by the lapse of time, still, inasmuch as the notice, on which that motion was founded, was signed by counsel, was served upon all the parties in interest, and was regularly filed, and contained all the requisites of a petition for a rehearing, it will be treated as a petition for a rehearing and relief given accordingly.</p> <p>6. It is error to decree a sale of land before taking an account of the liens. thereon, and their respective priorities.</p> <p>7. When a deed of trust has been given upon land by a debtor to protect his sureties on the debt against harm, it is error to decree a sale of' the land before making the creditor a party to the suit.</p> <p>8. Where judgment creditors file their petitions in a suit for the sale of their debtor’s land, it is error to enter a decree for sale in their favor, before referring the cause to a commissioner, so that the judgment debtor may have an opportunity of showing any payments made, or set-offs to which he may be entitled.</p>

This case was argued in Richmond and decided at Wytheville. It was a suit in equity to- set aside a sale of land under a deed of trust, and the conveyance to the purchaser from the trustee, and also a sale and conveyance by that purchaser to a purchaser from her. The case was heard upon the bill, the answers, and the exhibits; and the sales and conveyances were set aside and certain accounts ordered.

This case was heard at Richmond, but was decided at the term of the court at Wytheville.

This was a suit in equity in the circuit court of Washington, brought in August, 1870, by Zachariah Jordan against Wm. R. Rhea, to have partition of a tract of land which had been conveyed by William Chiles to said Jordan and. Rhea, by deed bearing date-the 4th of January, 1842.

<p>1. Where in a suit in equity, the rights of the parties involves the decision of questions which were not put in issue by the pleadings, or so vague and uncertainly as not to inform the opposite party of what were the issues between them, so that he might prepare his case in a way to secure a full investigation by the court, and a decision according to the very right of the case, and which would do justice to all concerned, the appellate court will reverse the decree of the court below, and send the cause back, with leave to the parties to amend their pleadings.</p> <p>2. Where the bill does not, in terms, allege that the plaintiff had no knowledge of an unrecorded deed of trust when he purchased the land, though it might be construed as virtually making such averment ; and it is not affirmatively averred in the answer that he had such notice, so as to put that matter in issue; proof upon that question by both parties was upon a matter not issue in the cause.</p>

<p>M & L, commissioners under a decree for the sale of land, sold to W a tract ca^e<^ C described as containing five hundred and three acres,. for $25,000. On this tract there were valuable buildings, and attached to it was a fishery in the adjoining river and the privilege of the free use of a public bridge over the river. This sale was reported to the court and confirmed. W was put into possession; and before the last payment fell due it was ascertained that there was a deficiency of thirty-four and one-half acres in the quantity of land stated in the contract. W then applied to the court to have an abatement of the price to the extent of this deficiency; which was resisted, on the ground that it was a contract of hazard.—Held :</p> <p>1. While contracts of hazard in such cases are not invalid, courts. of equity do not regard them with favor. The presumption is against them; and while such presumption may be repelled, it can only be done by clear and cogent proof.</p> <p>2. Upon the evidence in this case, held, that it was not a contract of hazard, and W is entitled to an abatement for the deficiency in the land. . ' ' . ■</p> <p>3. W retaining the buildings, fishery and bridge privileges, the value of these is to be deducted from the price, $25,000; and the balance of that sum is to be taken as the value of the five hundred and three acres of the land, and from which a prorata abatement is to be made for the deficiency of forty-two and one-half acres.</p> <p>4. Though it is true that in Virginia it would seem to be the general rule that objections by purchasers to judicial sales for defect of title must be made before the sale is confirme^ by the court, and that objections afterwards come top late, yet the rule does not apply to the equity of a purchaser arising from after dis’covered mistake, fraud, or other like matter. And there having been a mutual mistake as to the quantity of land in the tract, W is not precluded by the confirmation of the sale obtaining relief. '</p>

<p>Where the vendor’s lien is retained in a contract for the sale of land,' though the contract is not recorded, the vendor’s lien has priority to that of the judgment creditors of the vendee.</p> <p>2. Where a grantor in a conveyance of land had claimed homestead in bonds given for a part of the purchase money by the grantee, and the conveyance is afterwards set aside as fraudulent and void as to judgment creditors of the grantor, Jae may claim homestead as against the creditors, in the land or the proceeds of the sale thereof to the amount of said bonds.</p> <p>3. Where statute enactments do not interfere, a judgment creditor can acquire no better right to the estate of a debtor than the debtor himself has when the judgment is recovered. He takes it subject to every liability under which the debtor held it, and subject to all the equities which exist at the time in favor of third parties; and a court of chancery will limit the lien of the. judgment to the actual interest which the debtor has in the estate. See Floyd, trustee, v. Harding, supra 401; Borst v. Nalle & als., supra 423.</p>

<p>This was a suit in equity iu the circuit court of Floyd county, brought by J. W. Lester and others, children of Abner Lester, Jr., deceased, against Fleming W. Lester and others. The object of the suit was to enforce a parol contract, by which the plaintiffs alleged in their bill, Abner Lester, the elder, agreed with his son, Abner Lester, Jr., that the said Abner Lester, Jr., should have a certain tract of land which had been patented to Abner Lester, the elder, in consideration that Abner Lester, Jr., should support the said Abner, the elder, and his wife, during their lives; and to set aside a deed, as having been fraudulently procured, by which Abner Lester, the elder, conveyed to his son, Fleming W. Lester, and his daughter, Elizabeth Thompson, the land referred to in said contract; also to injoin, a judgment in ejectment, which these last named parties had recovered against the plaintiffs f°r the possession of the land. The defendants demurred to the bill; and also answered, denying the allegations of the bill.</p> <p>A large mass of testimony was taken by both the plaintiffs and defendants; and the cause coming on to be finally heard, the court dissolved the injunction which had been granted, and dismissed the bill. * And thereupon J. W. Lester and the other plaintiffs obtained an appeal to this court. The case is sufficiently stated in the opinion of Anderson, J.</p>

This was a proceeding by unlawful detainer in the circuit court of Scott county, by Nancy McKinney against William F. Bartley, to recover a tract of land. There was a verdict and judgment for the plaintiff; to which, on the application of Bartley, a writ of error and supersedeas was awarded by one of the judges of this court. The case is fully stated in the opinion of the court delivered by Moneure, P.

This was an action of ejectment in the circuit court of Lee county, brought, in February 1874, by William Elliott against William P. Horton, to recover a small strip of land lying between what were the recognized lands of the plaintiff and the defendant. Both parties claimed under the title of Jacob Fisher, who had owned a large tract of land which included the lands now held by both plaintiff and defendant.

The only question involved in these cases is that decided in the eases of Roberts’ adm’r v. Cocke als. and Murphy v. Gaskins’ adm’r, supra 207. The cases are.stated in the opinion of the court delivered by Moncure, P.

<p>Wbere a warrant is brought before a justice upon a claim exceeding twenty dollars, and upon the application of the defendant before trial, it is removed to the county court, an appeal lies to the circuit court, from the judgment of the county court in the case.</p>

<p>I. A court of equity has jurisdiction of a suit brought by the owner in possession, to set aside a deed which has been put upon record, whereby the complainant’s land has been wrongfully conveyed to a purchaser at a tax sale.</p>

This was an action of debt, in the circuit, court of Eoanoke county, brought in February 1874, by David Dyerle against Jeremiah Stair, upon a bond of which the following is a copy : “Two years after date I bind myself and heirsd, &c., • to pay to David Dyerle or heirs one thousand dollars, for his interest in the Hausman place in Botetourt county. Given under my hand and seal this 20th day of September 1863.

<p>I. M, administratrix of her husband, after paying all debts of the estate* has in her hands a sum of money for distribution among herself and her three children. This money, with some that she borrowed, she invested in a tract of land, taking the title to herself. Her daughter, L, marries S, she being at the time an infant. After her marriage, M and the other two children and S execute a deed, by which it is recited that the parties have agreed that M shall have one-half the land for her share, she paying the money she had borrowed, and that she had purchased the interest of M and the other two children in the other half. M and these two children convey to S the last half of the land to be held by him to his own use. Held :</p> <p>1. L, whilst an infant, could not make an election to take the land so purchased in lieu of the money in the hands of the administratrix, to which she was entitled, and which had been invested in land.</p> <p>2. A wife during coverture has no power to make such election. But the husband may, in behalf of himself and wife, make such election, where it plainly and distinctly appears that he acted for her, or for himself and wife conjointly.</p> <p>3. Upon the marriage of L with S, she not having made an election to take the land, she had no interest in the land held by her mother, as real estate; but only a claim upon her mother as administratrix, for her proportion of the money which she was entitled to receive as one of the distributees of her father’s estate. This was upon her marriage nothing more than a chose in action, which upon a reduction into possession belongs to her husband.</p> <p>4. The adjustment made by M and her two children and S, was upon the part of S a reduction into possession of the chose in ■action. S being a party to the deed, tbe claim against M was thereby extinguished; and such extinguishment will be held _ to be a reduction into possession by S to such an extent as to clothe him 'with the absolute property as against any claim of his wife, either to have the land as hers, or to have settlement upon her.</p> <p>5. For the principles applicable to such cases, see the opinion of the court by Christian, J.</p>

In May 1872, Stephen Bond filed his bill in equity-in the county court of Carroll county, against William B. Horton and nine other persons, in which he alleged that he had been appointed sheriff of the county, and that William R. Horton was his deputy, and the other defendants were the sureties of said Horton.

This case was argued in Richmond, at the March term of^ the court, and decided at Wytheville. It was a suit in equity in the nature of a creditor’s bill, in the chancery court of Richmoud, brought in November 1870, by the administrator de bonis non of Thomas B. Small, against the executrix and devisees of Robert R. Lumpkin, deceased, to subject the real estate of said Lumpkin to satisfy a debt of $4,500, with interest from the 1st day of June 1858.

<p>1. The act of assembly, approved April 2d, 1873, entitled “an act to amend and reenact section 14, of chapter 187, of the Code of i860, (section 14, ch. 173, Code of 1873) in relation to interest; so far as said act confers upon courts and jurors, in the cases therein mentioned, power to remit interest as therein provided, on contracts made prior to April loth, 1865; which said courts and juries did not have under the laws in force, at the time such contracts were made; is repugnant to the constitution of the state and the United States, and is, therefore, null and void.</p> <p>2. On a bond dated June 6th, 1845, payable on demand, in which there is . nothing said about interest; on which judgment was rendered March 12th, 1874, and in which judgment the circuit court simply by virtue • of the act of April 2nd, 1873, above recited, there being no evidence on the question of interest before it, abated the interest from April 17th, 1861, to April 10th, 1865&emdash;Held :</p> <p>• The bond is payable prese7itly, and bears interest from its date till paid; that there is an implied contract to pay said interest; and that said act allowing the abatement within the periods mentioned, impairs that contract, and is therefore null and void.</p> <p>See also Roberts ad7n’r v. Cocke, and Murphy v. Gaskin’s adm’r. &c., supra 207, and Cecil v. Deyerle, Linkous v. Shafer and Garnand v. Childress, 6fc.</p>

<p>I. Pending a suit by judgment creditors against their debtor and others, to set aside a deed of trust "or subject the surplus to payment of their debts, the debtor is declared a bankrupt on his own petition, and in the suit he claims his exemption and homestead out of the surplus of the purchase money of the land, after satisfying the debt secured by the deed of trust. The circuit court dismisses the debtor’s application, and makes a decree distributing the fund. The bankrupt has such an interest in the case as entitles him to take an appeal.</p> <p>II. In such a case the trustee in the deed did not sign it and it does not appear that he accepted or acted under it; and he lives out of the state, and is not a party to the suit. The court may decree a sale of the land and appoint a commissioner to make the sale.</p> <p>III. A part of the tract of the land lies in Virginia and a part in West Virginia. The court may decree a sale of the whole tract.</p> <p>IV. The bond executed under the act of May 28, 1870, entitled “an act to prevent the sacrifice of personal property at forced sales,” Session Acts i86g-’7o, ch. 120, p. 162, is a lien on the land of the obligors who are alive, from the return of the bond to the clerk’s office; and the surety in the bond paying it off is entitled to be substituted to the lien of the bond upon the land of the principal obligor.</p> <p>V. Where the bill and proceedings specifies the land, a decree for the sale of the land in the bill and proceedings mentioned, or so much as may satisfy the purposes of the decree, is sufficiently certain. That is certain which may be made certain, applied to the case.</p> <p>VI. Judgment creditors seek to subject land of their debtor which has been conveyed in trust to secure a debt; and in their bill they charge that the deed was intended by the grantor to defraud his creditors, • and the trustee and creditor in the deed were cognizant of the fraudulent intent at the time. The creditor answers and denies the &aud and proves his debt.—Held :</p> <p>1. It was proper to proceed in the cause and decree satisfaction of the plaintiff’s debts out of the surplus of the purchase money of the land after the satisfaction of the debt secured by the deed.</p> <p>2. It is a proper case for a decree between defendants, and, the debt of the trust creditor having been established, for a decree in his favor for the debt.</p> <p>3. Though the deed of trust conveys other land lying in West Virginia and personal property, it not being alleged that the creditor has received anything from that source, and no motion made by any of the parties for an enquiry on the subject, which, if made, would no doubt and should have been ordered, the decree will not be reversed for the failure to make the enquiry.</p> <p>4. As the proofs did not sustain the charge of fraud in the deed and the guilty knowledge of the trust creditor, he is entitled to a decree in the cause for his debt.</p> <p>VII. There are three suits by judgment creditors to subject the land of their debtor which he had conveyed in trust to secure a debt, and the debtor, the trustee and trust creditor are made defendants in each of them. The process is properly served on all the parties in two of the cases, and on the trustee and creditor in the third.' The court made an order that the causes shall be consolidated and heard together, and that is done; and the debtor appears and makes defense in all the causes without objecting that the process was not properly served in the third case. He thereby waived the objection on that ground, if he had any.</p> <p>VIII. Though the causes were heard together, each plaintiff is entitled to a decree for his separate costs.</p> <p>IX. The decree directs the commissioner to sell the land in the bill and proceedings mentioned, or so much thereof as may be necessary to satisfy the purposes of the decree. The commissioners report that they sold the tract of land in the bill mentioned, known as the home tract. This tract is described in the bills as lying partly in Tazewell county and partly in Mercer county, West Virginia; but how much in each is differently stated in the different bills; and it is doubtful whether the commissioners sold the whole or only that in Tazewell county.—Held : The report leaving it in doubt how much or what they sold, the sale should be set aside.</p> <p>X. A defendant gives a written notice to the plaintiffs that he will move the court to set aside a decree made in the cause as a decree by default; and he sets out in his notice, which is signed by his counsel,, the grounds he relies on for setting the decree aside. If the decree was not a decree by default, it was an interlocutory decree, and his notice may be treated as a petition for a rehearing of the decree, and acted on by the court as such a petition.</p> <p>XI. In a suit by judgment creditors to subject their debtor’s land to the-payment of their debts, pending the cause the debtor is declared a bankrupt, and he applies for a homestead under the constitution and law of Virginia and the acts of bankruptcy of the United States.— Held:</p> <p>1. That the assignee in bankruptcy of the defendant debtor should be made a party to the suit.</p> <p>2. The court should proceed to adjudicate upon the right of the-debtor to his homestead.</p>

On the 14th day of August, 1874, Stuart, Buchanan & Co. presented to the board of supervisors of Pulaski county, a claim for salt furnished to the county in •1862. This claim was rejected by the board of supervisors; and Stuart, Buchanan & Co. thereupon took an appeal to the county court.

<p>I. At the August term 1874 of the county court of P, N presented a plat and certificate of land assessed in the name of L, and sold in her name in i860 by the sheriff of the county for the non-payment of taxes due thereon, and purchased by N’s assignor. B, claimant of the legal title to the land, opposed the recording of the plat and certificate, and proved he had paid to the clerk the taxes, &c., but he offered no evidence of his title. The court admitted the plat and certificate, and B appealed to the circuit court; and that court reversed the order of the county court, on the ground that the county court should have admitted evidence of B’s title. On the second trial in the county court B traced back his title to a deed from T, as attorney in fact of L, to S; but the power of attorney was not produced or proven. The county court sustained the claim of B, and rescinded its order, admitting the plat and certificate to record; and upon appeal by N to the circuit court the last order of the county •court was affirmed.&emdash;Held :</p> <p>1. The first order of the county court admitting the plat and certificate to record was proper.</p> <p>2. It not appearing that B offered any evidence of his title to the land, it was error in the circuit court to reverse the order of the county court, and send the cause back to let B introduce such evidence.</p> <p>,3. B not producing or proving the power of attorney under which T professed to act, he failed to establish his title to the land; and .the second order of the county court and the order of the circuit court affirming it were erroneous.</p> <p>.4. The act, Code of 1873, ch. 38, § 18 and 19, in relation to the sale of land for taxes, is only intended to furnish evidence of the identity of the land sold, not only for the information of the former owner, and all others interested, but for the guidance of the clerk in making the deed. When the purchaser offers the plat and certificate for recordation, the sole duty of' the court is to consider whether the plat and certificate, or the report of the surveyor, as the case may be, is in conformity to the requirements of the law in respect to the description and identity of the land. It is no concern of the court whether the purchaser has acquired a title, or whether the owner has. properly exercised his right of redemption. The proceeding is ex parte in its character, and does not in the least affect the rights of third persons.</p>

<p>I. In an action for malicious prosecution, to warrant a verdict and judgment for damages, it must be proved on the part of the plaintiff: First, that the prosecution alleged in the declaration has been set on foot and conducted to its termination, and that it ended in the final acquittal and discharge of the plaintiff. Second, that it was instigated or procured by the cooperation of the defendant. Third, that it was without probable cause. Fourth, that it was malicious.</p> <p>2. Although the allegation of want of probable cause in the declaration, in actions of this kind is negative in its character, yet it must be proved, or the plaintiff must fail.</p> <p>3. Probable cause, in a criminal prosecution, is “ the existence of such facts and circumstances as would excite the belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted.”</p> <p>4. Both malice and the want of probable cause must concur and be proved. Malice may be inferred from the want of probable cause, but the lat- . ter can never be inferred from the plainest malice.</p> <p>5. In a legal sense, any unlawful act which is done wilfully and purposely, to the injury of another, is as against that person malicious.</p> <p>6. Circumstances which will maintain an action for malicious prosecution.</p> <p>7. The general course of the examination of witnesses is, and must of necessity be, left to the discretion of the trying judge, and the exercise of that discretion will never be interfered with by an appellate court unless it plainly appears that some injustice has been done.</p> <p>8. The declarations of a party are not generally admissible as evidence in his own favor, but they are so admissible whenever they form a part of the res gesta. To come within the terms and operation of the rule, the declarations must accompany and explain an act done, which is a fact in issue, or is relevant to the issue.</p> <p>9. Although an action for malicious prosecution cannot he maintained, unless the plaintiff has been fully acquitted of the criminal charge, and a nolle prosequi is not sufficient; yet the plaintiff is not obliged to prove that he was acquitted by the jury promptly, without hesitation, delay or deliberation; and the evidence of a juror, to show that the deliberation of the jury was caused by their doubt as to the guilt or innocence of the accused, is inadmissible.</p>

In September, 1876, William Fay was indicted in the hustings court of the city of Bichmond, for stealing divers notes of the United States currency amounting to two hundred and eight dollars, the property of Uelson Bandolph. He was tried at the October term of the court, and was found guilty, and the term of his imprisonment in the penitentiary was fixed by the j*ury at three years.

<p>On an indictment, under ch. 202, $ 29, of the Code of 1873, of H, for that he maliciously and of his malice aforethought did shoot one S, the jury returned their verdict: “We, the jury, find the defendant H not guilty of malicious shooting, as in the within indictment charged, but guilty of unlawful shooting with intent to maim, disfigure and kill, and fix his term of confinement in the penitentiary at two years.” The verdict is to be read in connection with the indictment, and therefore sufficiently indicates the person shot.</p>

At the October term 1875 of the corporation court of Norfolk, Amedee Roussell and Amelia Roussell were jointly indicted, for, on the 7th of September, 1875, stealing a large quantity of jewelry, a gold watch and silver forks, the property of Emile Goulard. The cases were continued until the October term 1876, the parties being admitted to bail.

<p>■ l. A marriage between, a white man and a woman who is of less than one fourth of negro blood, however small this lesser quantity may be, is legal.</p> <p>2. A woman whose father was white and whose mother’s father was white, and whose great-grandmother was of brown complexion, is not a negro in the sense of the statute.</p>

John S. Haynes was indicted in the hustings court of the city of Richmond for grand larceny; and on his trial he was found guilty, and the term of his imprisonment in the penitentiary was fixed at five years; and the court sentenced him accordingly. On his trial the prisoner took two exceptions to rulings of the court; and applied to a judge of this court for a writ of error; which was awarded. The bills of exception are set out in the opinion of Judge Christian.

<p>1. It js settled law in this state, that where there are several counts in an-indictment, and the jury find the accused guilty upon one of the counts, saying nothing as to the others, the verdict operates as an acquittal upon the counts of which the verdict takes no notice; and the court should enter a judgment accordingly.</p> <p>2. In such a case, if the accused applies for and obtains a new trial, he does not thereby waive the advantage of the acquittal thus obtained.. But he must be tried, and can only be tried again, on the count on which he was convicted, and not on the counts on which he has been before acquitted. And the rule is the same whether the new trial is granted because the verdict is contrary to the evidence, or because-the verdict is so defective, or uncertain, that legally no judgment can be pronounced thereon.</p> <p>3. And the same rule applies where on an indictment for murder, the jury found the prisoner guilty of manslaughter, or on an indictment for malicious stabbing, See., with intent to maim, disfigure or kill, the jury find the prisoner guilty of unlawful stabbing with intent to kill.</p> <p>4. Where there is but one count in an indictment on which the accused may be convicted of one of several offences which are covered by the indictment, the verdict of the jury finding the accused guilty of one of the said offences is a verdict of acquittal of all the others of' a higher grade of offence: as on an indictment for murder, a verdict, finding the accused guilty of manslaughter, is a verdict of acquittal, as to the murder: and on an indictment for malicious stabbing with intent to kill, a verdict finding the accused guilty of unlawful stabbing with intent to kill is an acquittal of malicious stabbing. And the rule stated in No. 2 applies. Quiere : If this rule applies where on an indictment for murder the jury find the prisoner guilty of murder in the second degree.</p> <p>5. On a second trial of the offence for which the accused was found guilty by the jury, if the jury find him guilty they may fix his imprisonment or other penalty at any period or penalty authorized by the statute, though it be greater than that fixed by the first jury.</p> <p>6. Under an indictment with only one count, for malicious shooting, stabbing or cutting, with the intent to kill, the accused may be convicted of the offence charged, or of unlawfully doing such acts, or indeed, of any other offence—felony or misdemeanor—which is substantially charged in the indictment.</p> <p>■ 7. The acquittal obtained by the first verdict is not affected, if the indictment under which it was found is afterwards quashed by the court on the motion of the attorney for the commonwealth; nor is the prisoner entitled to be discharged from prosecution on another indictment for the offence of which he was convicted in the first indictment, because that indictment ,was quashed; he would have every right under the second indictment that he had under the first, and no more.</p> <p>8. The mere pendency of one indictment is no bar to another, even for the same offence; the accused cannot be tried on both, but the commonwealth may elect on which it will prosecute.</p> <p>9. The discharge of a jury, after they have rendered a verdict against a prisoner, but which verdict is adjudged to be a nullity because it was not duly perfected, and thereupon set aside as insufficient, is no bar to a prosecution under the same or a new indictment.</p> <p>10. When a prisoner is arrested under a warrant of a justice, examined and committed to jail, and indicted and tried, and afterwards that indictment quashed and a new indictment found against him for the same offence, he is not then entitled to a new preliminary examination before a justice under the last indictment found against him.</p> <p>11. Where a prisoner has been carried to the penitentiary in execution of the judgment of the court below, and after that a new trial is granted him by the court of appeals, the last named court will award a writ of habeas corpus, directed to the superintendent of the penitentiary, to bring the prisoner before it, and order him to be committed to the sheriff of the county in which the court of appeals is sitting, to be by him conveyed to the jail of the county in which the judgment of conviction was rendered, for the purpose of being again tried in conformity with the judgment of the appellate court.</p>

In July 1876 Charles Walker was indicted in the ■county court of Roanoke, for entering a dwelling house with intent to steal, and stealing therefrom certain articles described in the indictment. He was tried at the October term of the court; when the jury found him guilty, and fixed the term of his imprisonment in the penitentiary at five years; and sentence was rendered against him in accordance with the verdict.