Volume 70 — Virginia Reports

This case was heard at Wytheville, and decided at Staunton.' The case is as follows: On the 18tli of October, 1871, a single bill obligatory was executed by tbe plaintiffs in error, Cecil & Perry, to the defendant in error, Ilicks, in the, words and figures following, to-wit: “ ($7,000).

This case was pending.in the court at Wytheville, and was argued at that place, but was decided by the court at Staunton. John A. Sinnnerman, of the county of Wythe, died in the year 1853, leaving a widow and one child, Mary Ann Gr., who was then married to John P. M. Simmer-man. He left a will which was duly admitted to probate, and Robert Crockett qualified as his executor.

This case was argued at Wytheville and decided at Staunton. It was a bill filed by John Snavely against the heirs-ab-law of Philip Pickle, deceased, in the circuit court of Smythe county, to be permitted to redeem what he claimed to be a mortgage upon a tract of land in said county. The facts are stated in the opinion of Judge Burks. The cause came on to be heard upon the 30th of April, 1875, when the court dismissed the bill.

<p>1. The court of appeals haying reversed a decree of the court below for the sale of land, and another confirming the sale and distributing the proceeds, in the absence of the owners of one moiety of the land, and having sent the case back, that they may be made parties and have an opportunity to defend their .interests; though the decree is in other respects confirmed. these absent owners, when made parties, have the right to except to the sale and its confimation; and are not precluded by the affirmation of the decree in other respects than those on which it was reversed.</p> <p>2. A commissioner appointed to sell land, makes a report of his sale in 1863, and whilst he states the amount for which the land sold, he does not say anything of the kind of money for which it was sold. Some of the owners of the land not having-been parties in the cause when the decrees for the sale and its confirmation were made, are afterwards made parties; and they except to the sale, if it was made for Confederate currency. The commissioner then presents a supplemental report, stating that the land was sold for good money, and tlie report is not excepted to, but is received and acted on by the court. It cannot be objected to in the appellate court.</p> <p>3. A commissioner for the sale of land, is required to make report of his proceedings. If his report be incomplete, insufficient, or in any way imiierfeet, he may be required to make a further report; and so, if after he has made his report, and it has been received and accepted, at any time before final action upon it, he discovers any material mistake, or omission, or ambiguity in it, he may, by leave of the court, and it would be his duty, to file an amended, additional or supplemental report, correcting the mistake, supplying the omission, or explaining the ambiguity. ”</p> <p>4. In such a case tlxe report may be excepted to. But ixi all cases where exceptions are necessary, they should specify with reasonable certainty, the particular grounds of objection, so as to exxable the opposite party to see clearly what he is to meet, aixd the court what it is to decide.</p> <p>5. An ante-war creditor refuses to receive from a purchaser of property sold for payment of debts ixx I8G3, Confederate exu-rency iix payment, axxd the purchaser obtains axi order of the court to invest the amount ixx Confederate boixds. It is the purchaser's money which is invested, and he must bear the loss.</p>

<p>Tliis case was heard at "Wytheville, but was decided at Staunton. It was a suit in equity in the circuit court of Bland county brought in May, 1871, by Isaac P. and ^ jy Lambert to set aside a will of Mary Cooper, deceased, which had been admitted to probate in the county court of Tazewell county in May, 1861. The grounds on which they assailed the paper were, first, that it had not been properly executed; second, that Mary Cooper was not of sound and disposing mind and memory at the time she executed the paper; and, third, that she was practiced upon and hoodwinked into the execution of the same. The legatees under the will answered, and denied the truth of all or any of the grounds stated in the bill for setting aside the will; and an issue devisavit vel non was directed to be tried at the bar of the court.</p> <p>On the trial of the issue the jury found a verdict in favor of the will; and thereupon the plaintiffs moved the court to set aside the verdict and grant a new trial of the issue, on the ground that it was contrary to both the law and the evidence. This motion the court overruled; and the plaintiffs excepted. The bill of exceptions contains all the evidence, and of course it is contradictory. The plaintiffs in the issue to sustain the will introduced "William M. Bishop as a witness. He was the executor named in the will, and had qualified as such. His testimony went to prove the due execution of the will, and that Mrs. Cooper was of sound disposing mind and memory at the time.</p> <p>There were two other subscribing witnesses to the will, who were introduced by the contestants. They said they did not think Mrs. Cooper capable of making a will. The plaintiffs in the issue then introduced two witnesses— Elizabeth Lambert, who was objected to as incompetent on the ground of interest; but the court overruled the objection, and no exception was taken to the ruling of the court; and James Cundiff, whose testimony as to the character of one of the contestants’ witnesses was objected to by them; but the court overruled the objection and admitted the evidence; and again no exception was taken to the ruling of the court. '</p> <p>In May, 1876, the cause came on to be heard, when the court dismissed the bill with costs. And thereupon the plaintiffs applied to a judge of this court for an appeal; which was allowed.</p>

George W. Crawford died in 1858, leaving a will, which was admitted to record in the county court of Augusta, and William Crawford qualified as his executor. The testator was unmarried, and had in his lifetime provided for two orphan hoys, and by his mil gave to them legacies. To George T. Shover, one of these boys, he gave a legacy of $8,000, and directed that it should be put out to interest for Ms benefit.

<p>In 1856 G made his note for $775, which was endorsed by J, S and K, and which being protested was taken up by K. G then made a deed by which he conveyed in trust certain personal property, and among it a slave named Jenney, in trust to Secure these endorsers and five others, equally for all their suretyships for him. At the same time he conveyed to the same trustee on the same trusts certain real estate, all subject to liens. G being insolvent, K, who was Iris father, undertook to obtain a release of the slave Jenney, and the other parties except S signed a release on the consideration that the wife of G would release her right of dower in the land conveyed in trust. To induce S to sign the release, K promised to release him from his liability on the said note, and ux>on that x>romise S signed the release. K’s administrator afterwards recovered a judgment ux>on the ■ note, and S enjoined it. The trust fund of G was insufficient to pay the claims upon it, and J and S had to pay large amounts for G. Pending the injunction, both J and C became insolvent; and these facts are shown by an amended bill. Upon demurrer to the bills—Held : The agreement of K to release S, whether an executed or executory contract, is a good ground of relief against the judgment, and S might xiroperly go into equity for relief.</p>

<p>In 1853, S and wife sold and conveyed to B land for $2,100, retaining a vendor's lien. B paid $1,500, and gave tln-ee bonds, each for $200, two of which were assigned to H and one to T. B conveyed the land to T in trust to secure a debt of $027 to TV. In May, 1S58, B and T made a private sale of this land to A and his wife for $2,100, payable $700 on the 1st of August, 185S, and the balance in payments extending to 1863; and A and wife paid of the purchase money $592, which was applied to the debt of W. In 1S60, II and T filed a bill against A and wife and others for specific execution of. the contract, and to sell the land to pay the vendor’s lien held by H and T. .In May, 1SG0, before a decree in the cause, T, B and A and jvife made a private sale of the land to R for $2,100, payable $1,000 October 1st, I860, and three annual payments. • R paid to T $1,000, and gave his bonds to T for the balance. This sale was confirmed by the .court at the October term, I860,-and'.T was appointed a receiver to collect the money and pay it out to the persons entitled. But he was -directed not to pay H until he filed the bonds held by him among the papers. . T paid the debt of IV, retained enough to pay II, and paid'balance to B. The bond of R, due in 1862, was assigned byB and ,T to S, jvho recovered a judgment upon it, and then R filed a bill against S to enjoin the judgment. The injunction ivas granted and afterwards dissolved. And then R filed" a bill of review, on the ground that the wives of B and A were entitled to a contingent right of dower in the land, and that II had a lien on the land. The bill of review .was dimissed; and R appealed—Held .- ■</p> <p>1. As the bonds of R were left in the hands.of T, the receiver, to pay the debt of H, and were sufficient "for that purpose, if E has paid them to T, II can have no lien on the land.</p> <p>2. A’s wife having been a party to the suit, she cannot claim. dower in the land; and the proceeds of the sale having-been exhausted by the prior liens upon it, there is no surtplus out'of which she may be endowed.</p> <p>3. The land having been sold to satisfy the liens of H and T, the wife of B can have no right of dower in the land in the hands of the purchaser E; any right she may have must be in the surplus of the purchase money, after satisfying the prior liens. Whether she has an interest in this surplus, must depend upon the true construction of the statute, Code of 1849, ch. 110, §3; Code of 1S73, ch. 106, § 3. That is a question between the assignee S and the wife of B, in which E, the purchaser, is not concerned. But to avoid the hazard of a contest with her, he may bring them before the court to have their respective rights settled by the court.</p> <p>4. E allowed to amend his bill and make Mrs. B a party. And, if the other suit is still pending, to make all the parties to it defendants, and the two cases may be heard together, and ■ a final decree entered adjudicating the " rights of all the parties.</p>

<p>I. Infants by their nest friend file their bill against their guardian, first surcharge and falsify the settled account of their guar- ' ” dian, and to have him removed ; and second, to have a sale of their lands. The guardian demurs to the bill, on the ground that it.is multifarious—Held: That, as the court cannot sell the infants’ land on a bill filed by them, and no relief on that part of the bill can be given, the court null consider the case as if that part of the bill was not in it; and the demurrer was properly overruled.</p> <p>H. Pending the case, some of the plaintiffs come of age, and they all unite in an amended bill asking the same relief against the guardian: and the plaintiffs who have come of age ask for a partition of the land and a sale of it, on the ground that it cannot be divided in kind without injury to all. The guardian demurs to the amended bill on the same ground—Held : The corn-t cannot decree a partition and sale of the land on this bill; and therefore it will be treated as if this part of the bill was not in it; and the demurrer was properly overruled.</p> <p>HI. Pending the suit all the plaintiffs go off to their relations, in the state of Hlinois, and one of these qualifies in that state as guardian of the infants; and they then amend their bill, stating these facts and filing a copy of the proceedings in the ■ Illinois court with a copy of the guardian’s bond, and asking that their property may be turned , over to their- Hlinois guardian. The account of the guardian having been settled, showing the amount due to each of his wards, the cause came on to be heard, when the court made a decree removing the first, guardian, and that he should pay over to the Illinois guardian the amounts severally reported to be due to his wards—Held :</p> <p>1. Under the large discretion vested in the courts in the appointment and removal of guardians, and the circumstances of this case as developed by the evidence, the court did not err in removing the guardian.</p> <p>2. It was error to decree the payment of the money of the wards to the Illinois guardian, without proceeding in tile mode prescribed by the statute. Code of 1873, ch. 125, § 5.</p> <p>3. The Illinois guardian may file his petition in this cause for the removal of the personal property of his wards, and the proceedings prescribed by said statute may be had therein.</p> <p>4. The sale or partition of the infants’ land cannot be made in this case; but the proceeding to effect this object must be as prescribed by the statute. Code of 1S73, ch. 124, §§ 2 to 8.</p> <p>IV. A guardian wljo receives the money of his wards and does not invest it, but retains it in his own hands, is to be charged interest thereon from the date of its receipt, and not from the end of the thirty days allowed by the statute to the guardian for making investments.</p> <p>V. A guardian receiving from the administrator of the father of his wards, his own bond bearing twelve per cent, interest, as a part of his ward’s estate, and not investing the same, is to be charged the same rat“ of interest upon it to the termination of his guardianship.</p> <p>VI. In the stating of a guardian's account, his commissions on the money received by him should be credited at the time of the receipt of the money, and interest only charged on the balance.</p>

<p>1. Tlio law is well settled that one partner is not entitled to claim ■ compensation for his services in the business, without a special contract for such compensation. And although one partner attended almost exclusively to a very large partnership business, from 1844 to 1865, there having been no agreement for compensation to him, he is not, under the circumstances, entitled to compensation.</p> <p>2. Partners buy a tract of land for partnership purposes, and it is conveyed to them. After the death of one of them, it is ascertained that the title to one-third of the land is defective, and the surviving partner pinchases this third interest and takes the conveyance to himself. I-Ie has purchased for the joint benefit of himself and the liens of the deceased partner, and they are entitled to claim it upon paying their share of the expense of the pinchase. This principle applies equally to joint tenants,-tenants in common, co-partners and all others having a common title and interest.</p>

<p>Where a will which revokes a former will is destroyed by the testator animo revocandi, with intention, that the former wilL shall be his will, but he does not re-execute it, or make a codicil reviving- it, though he retains it uncancelled, it is not revived by the destruction of the last will.</p>

<p>By deed bearing date August S, 1S54, A in consideration of ids affection for his wife M, and of his children born and to be bom of his said wife M, conveyed to L all his property after payment of the debts he then owed—“In trust for the benefit of my wife and children aforesaid, giving, granting and conveying for my wife an estate for life, and at her death for my children an estate in fee simple, the whole of what belongs to me over and above my just debts being in trust conveyed to the aforesaid L.” And he directed that none of the principal of the trust property should be expended during the iife of his wife,. unless L should think it necessary for the support of his wife and children. During A’s life he executed bonds in which his wife joined, and after his death she gave her bonds or notes for debts contracted by her. Upon a bill by these creditors to subject the life estate of M in the trust property—Held : >1 took a life estate in the property which may be subjected to satisfy the debts in which she joined, either as surety or principal.</p>

<p>1. A paper complete on its face, set out an agreement between Mrs. M on tbe one part and S. M. on the other part, by which she sold to S. M. her dower right in land of her deceased husband, which had been assigned to her, for a certain price on stated credits, and they both executed the paper in duplicate; but it was agreed between them that they should meet on a certain day at the office of S, a lawyer, to have the paper examined by him and put into proper form if necessary. Mrs. M was prevented from attending at the office of S, on the day named; and soon after she died—Held : The agreement was a complete and binding contract between the parties from the time of its execution.</p> <p>2. An action of assumpsit having been brought on said agreement by the administrator of Mrs. M, and judgment recovered against S. M. for the pinchase money agreed to be paid by him for her dower right, the said judgment is conclusive, and S. M. cannot resort to a court of equity to set up the defence that there never was a completed contract between the parties; which defense he could have set up at law under the general issue.</p>

<p>In August, 1844, C conveys land to Ms son D to enable D to pay C’s debts. On the same day D conveys the land to B M trust to secure a debt of $5,000, payable in five years, ■with Mterest, to S. D dies in 1862, and B in 1866. In August, 1867, D files Ms bill against C, D’s administrator and heirs, to subject the land to pay his debt, but he cannot produce the bond. Held under the pleadings, proceedings and evidence in the cause: Hirst. That D was authorized to give the deed of trust. 2d. That D received value from S for the bond. 3d. That D had not paid off the bond or reduced it materially in his lifetime. 4th. That S had not delivered the bond to D, but it was still a valid and subsisting security. 5th. That it was not barred by the statute of limitations. 6th. That the presumption of payment did not arise under all the circumstances of the ease.</p>

<p>I. In an action of trespass on the ease, counts in case and counts ^ *‘esPass armis may be joined in the declaration. Code 1873, ch. 145, § 6.</p> <p>II. In an action of trespass on the ease, the count, without any special averments, charges that the defendant falsely and maliciously charged that the plaintiff attempted to bribe H (a negro woman), to burn the wheat stacked on his land—Held : The statute, Code of 1873, ch. 188, § 5, makes the malicious"burning of a stack of wheat a felony. To solicit another to commit a felony, though the felony be not afterwards committed, is a misdemeanor at common law, indictable and punishable, and the count avers a good cause of action.</p> <p>III. In an action for slander, malicious prosecution and false imprisonment, the plaintiff, in order to show the wealth and influence, of the defendant, offered in evidence certified abstracts from the books containing the returns of the assessments for taxation of the laud and personal property belonging to the defendant in the year 187G, the year of the trial of the cause. There being no objection to the form of the abstracts, or that they did not truly state what they purported, the evidence was admissible.</p> <p>IV. In such an action, what the defendant did after making his complaint to the justice to have the plaintiff arrested, is not evidence on his behalf.</p> <p>V. The officer having returned the warrant executed, and the plaintiff having appeared before the justice in obedience to it, that is a sufficient service of it, though he did not take the plaintiff into his custody, but only read it to her and requested • her to appear. And any instruction of the justice to the constable as to not taking her into custody, was wholly immaterial.</p> <p>VI. Plaintiff introduces a witness who is examined, hut the court, after hearing the evidence, excludes it, without objection by the plaintiff. The defendant cannot introduce evidence to rebut the evidence so excluded.</p> <p>VII. The defendant asks the court to instruct the jury that, if they shall be satisfied from the evidence that A informed him that C, the plaintiff, liad attempted to bribe II to burn defendant's wheat stacks, and that believing the information to be true, he went before O, a justice of B. and made complaint that C did attempt to bribe II to burn his wheat, and that said 0 caused C and witnesses to be brought before him and examined into the truth of tlxe complaint, and decided that (J was guilty, as charged, and required her on account thereof to enter into a bond and recognizance for her good behavior, this was a sufficient proof of probable cause for the proceeding of the defendant: and the plaintiff cannot recover on account of said complaint, or oix account of the arrest and imprisonment of tlxe plaintiff in pursuance thereof, though they should find that the complaint was subsequently dismissed by the county court, the plaintiff acquitted and the said boixd and recognizance quashed, unless they shall be satisfied from the evidence that the defendant knew the testimony before the justice to be false. The. court refused to give, the instructions—Held :</p> <p>1. Querré: "Whether the judgment of the justice, though reversed, was or was ixot conclusive evidence of probable cause for the complaint of the defendant. On this question the court was divided.</p> <p>2. The judgment of the justice, though reversed, was prima facie evidence of such probable cause.</p> <p>3. Tiie court should have so modified the instruction, and should have given it so modified.</p> <p>VIII. The court is not bound, on the motion of one of the parties, to instruct the jury generally on the law of the case.</p>

<p>This was a bill filed in the circuit court of Albemarle county by Ann Eliza Bailey in her own right and as executrix of Thomas R. Bailey, deceased, for her dower, and the settlement of his estate. The only question involved in the appeal was the propriety of disallowing the interest during the war upon the debt due to Thomas H. Pretlow. It appears that in 1860 Pretlow sold and conveyed to Bailey three pieces of ground near Charlottesville, for the purchase of which Bailey executed to Pretlow his eight bonds, payable on the 1st of January, 1862, and so on annually to the 1st of January, 1869; and conveyed the land in trust to secure them. This deed provides that as soon as default is made in the payment of any one of these bonds, or the interest thereon, the trustee, upon request, should sell, &e. Upon the last account reported by, the commissioner, interest upon the debt of Pretlow dining the war, amounting to $419.19, was disallowed; and to this Pretlow excepted. The cause came on to he heard on the 27th of October, 1874, when the court overruled the exception of Pretlow; and he thereupon applied to this court for an appeal; which was allowed.</p>

<p>1. The delivery by B and reception by Mrs. D of the paper given to P by B, is not a discharge of the note, unless it was so intended and agreed by Mrs. D; and this must be clearly shown by the defendants.</p> <p>2. The delivery of the note by P to the agent of L, and its cancellation and possession by L, will not prevent an action upon it by Mrs. D.</p>

<p>as trustee of B and wife, would have in his hands about $5,000, coming in in I860, ’61, ’62 and ’63; and with their concurrence he, in 18G0, purchased of J, agent of B’s heirs, a tract of land for about $5,000, payable, one-fourth in cash, and the balance on the 1st of September, 1861, ’62, ’63.. He paid the cash payment and gave his own bonds for the deferred payments, and B’s heirs, of whom there were eleven, conveyed the land to P in trust for B and wife. Two of these heirs lived in Indiana, one of whom was paid in full his share of the. purchase money in the spring of 1861. At that time HI and P, two of the heirs, went on a visit to Indiana, and before they went they informed J they would return in the fall, and instructed him to collect the money due them in September, and have it ready for them. He did collect it; but they did not return during the war. J objected to receiving the payment of the bonds due in 1862 and 1863 in Confederate currency, but P told him it was liable to confiscation, and if he did not receive it he would have it confiscated. .1 then received it and invested it in Confederate bonds, making no use. of any of the money himself. Upon the (question of who should bear the loss upon the three bonds—Held :</p> <p>1. J was justified by the direction of HI and P, in receiving payment of the bond due in 1861, and they must bear the loss on that bond.</p> <p>2. J having been induced by the threat of P to receive payment of the second and third bonds, and acting in good faith, he is not to be held liable for the loss upon these bonds.</p> <p>3. P having induced J to receive the. payment of these two bonds by his threat of having the debts confiscated, he is to hear the loss.</p> <p>4. P having made the parchase of the land, and given his-own bonds for the deferred payments, he must make good the loss to Ti and P out of ills own estate. Whatever equity he may have as against L and wife, must be-adjusted between them.</p>

This was a suit in equity in the circuit court of Rockingham county, brought in February, 1875, by Erasmus Coffman, D. ~W. Coffman and C. C. Strayer, to enjoin a judgment for $13,800, with interest from the 1st of September, 1868, which had been recovered against them and others in the same court, hy the executors of Chaiies Moore, deceased. The complainants claimed that they were sureties on the bond on which the judgment was recovered, and that the obligee, Charles.

<p>1. In a suit on a policy of insurance, the plaintiff was. asked what valuation the agent of the insurance company put on the property insured and destroyed by fire ? The answer was, the valuation stated in the policy by the agent; which was objected to by the counsel for the compauy on the ground that it was parol evidence offered to vary or explain the written contract of the parties—Held : The testimony was admissible, as it did not tend to vary the contract of the parties, but was in confirmation of it.</p> <p>2. To authorize the reversal of a judgment for error in admitting irrelevant evidence, not only must the evidence be irrelevant, but it must be of such a nature as that its admission may have prejudiced the adverse party. If he may have been so prejudiced, even though it be doubtful whether in fact he was so or not, it is sufficient ground for reversing the judgment.</p> <p>S. To render the admission of illegal evidence sufficient ground for the reversal of a judgment, it must be excepted to, and must be such as may have been prejudicial to the exceptant.</p> <p>4. Where the question before the jury was as to the quantum of damages to which the plaintiff is entitled, and there is evidence tending to sustain the verdict found by the jury, although there is evidence strongly indicating that the damages assessed by the jury were excessive, the question is one of fact for the jury; and the court will not disturb the verdict, even though on the same testimony, it would have found differently from the jury.</p>

This was a bill filed in January, 1866, in the circuit court of Buckingham county, by Gamin. Patteson and Mary E., his wife, and three others, by 'said Patteson as trustee and next friend, against John Horsley, G-.

<p>I. J, the surety of 31, who was the guardian of E, paid E SI,000 0f ^g indebtedness due from 31 to E, as guardian. J dies and Ins administrators sue 31 m assumpsit for the amount so paid, and 31 pleads his discharge in bankruptcy in bar to the recovery. The administrators of J reply that the debt due by 31 to then intestate is a fiduciary debt from which he is not discharged under section 32 of the bankrupt act—Held :</p> <p>1. The debt due by 31 to the estate of J is not si fiduciary debt, and his discharge in bankruptcy is a bar to the recovery of the same. The debt due by 31 to J’s estate was a simple contract debt, provable under the bankrupt act and discharged by it.</p> <p>II. What are fiduciary debts within the meaning of the phrase “while acting in a fiduciary character,” mentioned in section 33 of the bankrupt act ? Quaire.</p> <p>HI. A bond on which principal and surety are both hound, once paid by the surety in the lifetime of the principal, without assignment by the creditor, or an agreement to assign, is forever dead as a security as well in equity as at law. There can be no subrogation in such a case.</p>

This was a suit in equity in the circuit court of Washington county, brought in 1870, by Thomas L. Preston, to set aside a sale made by Robert Gibboney, as bis trustee and agent, to William A. Stuart, George W. Palmer and George B. Parker, of a large amount of property, including what is known as Preston’s salt works, in Smytli county, with several thousand acres of land, which Preston had conveyed to Gihboney in July, 1859, in trust, to sell and pay the debts of the grantor.

<p>L dies iu 1S40, and by liis will says, “ I give to my niece E, wife of B, the sum of S400, which said sum I wish put to interest, and that paid to E annually during the lifetime of her husband B, and at his death, should she be the longest liver, then I wish the principal paid over to her, said E.” S, the executor of E, paid the interest to E until 1SG2, when he died. B, the administrator of S, in April, 18G3, paid to the administrator de bonis non of L the §400 and interest in Confederate monej'. E died iu 1S6G, leaving her husband surviving her—Held :</p> <p>1. E took an absolute estate in the legacy, to which, upbu her death in the lifetime of her husband B, lie was entitled.</p> <p>2. The payment by B to the administrator de bonis non of L, was no sasisfaetion of the legacy as to B, hut the estate of S is liable to pay it, principal and interest, and B being the only child of S, and having ample assets, the decree may be against him personally.</p> <p>3. The adminissrator de bonis non of E not being a party to the suit, it was error to direct an inquiry as to what he had done with the Confederate money paid to him by B; but the decree against B should be without prejudice, to his right to proceed against the said administrator de bonis non to have an account of it.</p>

This case was argued at Wytheville, but was decided at Eichmond. It was a bill filed in the circuit court of Patrick county by Samuel G. Staples, to injoin Murray Turner, administrator of Rufus Turner, deceased, and others, from proceeding in two actions brought in said court against the plaintiff by said Turner for the benefit of Hardin W. Reynolds and James II. Rangely. The injunction was granted on the plaintiff’s confession of judgments in the cases.

<p>At the February term, 1857, of the court, a judgment was recovered against S and II as his surety, on a forthcoming bond, and it was docketed on the 1st of April, 1S57. An execution was issued on this judgment, and it was paid by II. On the 8th of October, 1856, S, by written agreement under seal, sold to E a house and lot, and delivered possession, and on the 18th of the same month S conveyed the same to E. This deed was acknowledged on the same day, II being one of the justices who took the acknowledgment; hut it was not presented in the clerk’s office for record until March 9th, 1857. Upon a bill by H, against E and S, to be substituted to the lien of the judgment against S—Held :</p> <p>1. II is entitled to be substituted to the lien of the judgment.</p> <p>2. The judgment having been docketed within twelve months from the date of its being rendered, and the deed not having been docketed within sixty days from its acknowledgment, the judgment is a lien upon the house and lot as against the deed.</p> <p>3. The agreement not having been docketed, it is void as to the creditor, and as to H claiming under him, though H liad notice of the deed and E had possession of the house and lot.</p> <p>4. ISTotice of a deed or written agreement for the sale of land' does not affect a creditor of the grantor.</p>

<p>1. An objection to the title of land by a purchaser at a judicial sale, must be made before the sale is confirmed by the court. Ordinarily an objection after confirmation comes too late.</p> <p>2. The title to an easement on the land to which it is appurtenant is necessarily connected with the. title to the land, and an objection referring to such easement must be governed by the same rules.</p> <p>4. Au objection by such a purchaser, after the sale lias been confirmed, that owing to bis misinformation as to the boundaries of the land, he does not get certain water privileges which he would have had if lie had been correctly unformed as to the said boundaries, can only be sustained on the ground of fraud or mistake; and if mistake is relied on, it must be the mistake of both parties.</p> <p>4. Ail objection of the kind should be made to the. court as soon as it- is discovered by the purchaser.</p> <p>5. Where a judicial sale of land is made, upon a credit, and the title. retained as a security, upon a rule against the purchaser to show cause why the. land should not be resold for his failure to pay the purchase money before making g. decree for the sale, the court should ascertain how much of the. purchase money is due, and should in the decree give him a day in which to x>ay it; and if not paid in that time, the commissioner to sell.</p> <p>5¡. Whether the. whole or only a part of the land should be sold, or whether as a whole or in xiareels, must be. referred to the discretion of the court, and his act will not he disturbed unless X>lainly erroneous.</p>

This was an action of covenant in the circuit court of the city of Richmond, brought by Christopher W. McLean for the benefit of Eliza ‘W. Bissell and J. E. Darrow, against the Piedmont and Arlington Life Insurance Company of Virginia, to recover the sum of five thousand dollars on a policy of insurance issued by said company upon the life of Wiley E. Higgins, of the state of North Qaropna> The policy was issued on the 22d of July, through the agency of H. T. Carraway, the…

<p>1. The court cannot take judicial notice of the military orders extending the time for a stay of execution on judgments.</p> <p>2. The object of the said orders was to extend only those provisions of the law which related to the stay of executions and the forced sales of property; and therefore, if they had any validity, they did not operate to suspend the running of the statute of limitations.</p> <p>3. The statute of limitations, Code of 1S49, ch. 149, § 9, is a legislative declaration that all the provisions of that chapter in regard to the limitation of actions shall ax^ply in favor of the testator’s debts, although there is a devise of real estate for their payment, unless it plainly appears that the testator otherwise intended. The devise is not of itself sufficient evidence of the intent. It must ax>x>ear from some provision or phrase indedependent of the devise, which indicates the purpose of the testator.</p> <p>4. A devise of real estate for the payment of debts will not affect the oxDeration of the statute of limiation upon such debts, whether they be barred at the testator’s death nr not, unless the contrary intention on his xwt plainly ax3x>ears.</p> <p>5. War interest impropierly abated in this case.</p>

<p>On September 30,1867, a summons in debt on a single bill was sued out, returnable to the succeeding October rules, to which rules- ° ’ it was returned executed on the 3d of October; and the plaintiff filed his declaration, and the defendant not appearing’, a. conditional judgment was entered against him, which was confirmed at the succeeding rules held October 28, 1867; and final judgment was entered against the defendant on the last day of the succeeding term of the circuit court, which was October 31,1867, which was less than one month after the service of process on the defendant—Held :</p> <p>1. The entry of final judgment against the defendant within one month after he was served with process was erroneous. Code 1873, cli. 166, § 6.</p> <p>2. According to the true construction of our statutes, where less than one month has elapsed between the service of process and the end of the succeeding term, the conditional judgment will become final at the term next succeeding the expiration of one month after the sendee of process.</p> <p>3. The aforesaid judgment of October 31, 1867, having been set aside in the court below on the motion of the defendant, the court should have reinstated the cause upon the docket, witli liberty to the defendant to plead, and to set aside the office judgment upon the usual terms, the said judgment to become final in case of his failure to set it aside.</p> <p>4. Where under such a judgment a fi. fa. is issued, and there is a proceeding by suggestion against persons indebted to the defendant, such defendant may, upon proper notice, appear in such proceeding and have the judgment vacated, and all proceedings thereunder quashed.</p> <p>¡1. A notice to reverse or correct a judgment by default, or to quash an execution, need not he in writing. All that is requisite is, that there should be reasonable notice.</p> <p>O. It is too late to make the objection in the appellate court that the notice was insufficient, when the parties appeared and made no such objection in the court below. '</p> <p>7. The court below having vacated the judgment of October 31, 1867, upon a motion of the defendant, where all parties appeared by their counsel, it had no jurisdiction to correct its action in that regard under § 5, cli. 177 of Code of 1873; but the proper remedy was by appeal.</p>

<p>I. The circuit court of the city of Richmond has no equity jurisdiction except in certain cases specified in the statute, in which tiie state is interested or some of the officers and boards representing the state are necessary or proper parties; and in such cases its jurisdiction is exclusive. Sess. Acts 18G9-'70, pp. 42, 43.</p> <p>II. Upon the facts of this ease held that tiie Board of Public Works of the state was a necessary party to a suit brought by parties claiming to be stockholders in the Petersburg Railroad Company, against the Company, the city of Petersburg, Ragland and others, to set aside certain acts of the railroad company done in favor of Ragland as tiie holder of a large amount of tiie stock of the company which he purchased from the city of Petersburg. This stock had been pledged by the city to the state, as collateral security for the guaranty by the state of a debt of the city.</p> <p>III. The state having returned the stock to the city of Petersburg, and it being held by the city as collateral security for tiie debt Ragland owed for the stock, and his note having fallen due, the city sued him upon it, and advertised the stock for sale. Rag-land then filed his cross-bill in the first suit to enjoin the suit aud sale until the questions in the first suit as to the character of the stock which the state had held, whether preferred or •common, should be settled. All the parties to the original jfill were, made defendants to the cross-bill. The causes were heard together, and the original bill dismissed—Held :</p> <p>1. The second bill asking for relief against the City of Petersburg, which could not be given on the pleadings and proceedings in the original bill, but which was based upon grounds involved in that ease, it was the proper subject of a cross-bill; but the relief sought by it being outside of the original bill, the dismissal of the original bill did not involve the dismissal of the cross-bill.</p> <p>2. If tlie cross-bill is to be treated as an original bill in the nature of a cross-bill, all the parties being before the court, and the case having been matured, it was proper to proceed to decide it upon tlie merits. And certainly Rag-land is not to be heard to question tlie jurisdiction of tlie court after having had the determination of the question brought by him into the ease.</p>

This was an appeal from the decree of the circuit court of Caroline county affirming a decree of the county court. It was a bill by Benjamin' Anderson to enjoin a judgment for $300 with interest from the 6th of March, 1860, and costs, which Coleman’s administratrix recovered in the circuit court of Caroline county in May, 1866, against said Anderson and Henry McCalley.

This was an action on the case brought in the circuit court of Shenandoah county, under ch. 145, §§ 7-9, Code of 1873, by George W. Xoontz, administrator of William A. Wightman, against the Baltimore and Ohio Bailroad Company, to recover damages for the death of his decedent, who died from injuries received at the well-known Barrow Passage accident, which occurred on the Valley railroad, which was then leased and operated by the Baltimore and Ohio Bailroad Company.

<p>By a deed made on the 2Sth of July, 1821, certain land in said deed described, was granted by D to his grandson B, his executors, administrators and assigns, from and after the grantor’s death, for and during his life only; and after his death the said piece of land to go to such person or persons as shall at that time answer the description of heir or heirs at law of the said B, and such person or persons shall take the said land under that description as purchasers under and by virtue of this deed, and not by inheritance as heirs of the said B—Held :</p> <p>1. B took but a life estate in the land; and the persons who at the time of B’s death answered the description of his heirs at law took as purchasers under the deed.</p> <p>2. By the act of 1785 dispensing with the word “heirs” in the grant of an estate in fee simple, the, grant to the remaindermen is a fee; but that act does not therefore extend the rule in Shelley's case to the estate given to B so as to enlarge it into a fee1.</p>

This was an appeal from a decree of the circuit court of Franklin county, rendered on the 20th of May, 1872. in a cause depending therein, in which some of the devisees and legatees of Thomas Helms were plaintiffs, and the executor and the other devisees and legatees were defendants, for the settlement and distribution of the estate of their testator.

<p>1. A tract- of land was fairly sold by commissioners, nnrsnant to a decree of court, to a purchaser for $27.50 per acre, subj ;ct to a contingent right of dower. The tract was assessed in 1S70 at $30; and $30 per acre was the. value fixed upon the land by a commissioner of the court, whose report had been confirmed without exception in the cause.; in which valuation no allowance was made for the. contingent right of dower. The owner of the land objected to a confirmation of the sale on the ground of inadequacy of price, and affidavits touching the value of the land were filed by both parties. The court below set the sale aside and ordered a resale; whereat the same party became the purchaser at the same price. In the meanwhile the assessment of the land had been reduced to $20 per acre. The owner of the land again objected to the confirmation of the sale on the same grounds as before; and the court again refused to confirm the sale, and again ordered a resale—Held : The first sale should have been confirmed; and the decree setting it aside and all the subsequent proceedings were erroneous.</p> <p>2. Qucere: If inadequacy of price is alone sufficient to set aside a judicial sale.</p>

This was a foreign attachment in chancery in the corporation court of the city of Alexandria, brought in November, 1871, by the Alexandria Savings Institution, to attach a house and lot in said city, and subject it to the payment of a debt evidenced by three notes amounting to $375, executed by George J. Thomas.

This case was heard at Staunton, but was decided in Richmond. It was an appeal from a decree of the circuit court of Frederick county, rendered in a cause in which M. G. Harman was plaintiff, and John II. Chris-man’s administratrix and G. A. White were defendants.

<p>1. The shares of a stockholder in a joint stock company, incorporated by and conducting its operations, in whole or in part, in the state are such estate as is liable to be attached in a proceeding instituted for that purpose, by one of the creditors of such stockholder; and such estate may properly be considered, for the purpose of such proceeding, as in the possession of the cor-, poration in which the shares are held, and such corporation may properly be summoned as garnishee in the case. •</p> <p>2. Of such a proceeding a court of law has jurisdiction as well as a. court of equity.</p> <p>3. Where, along with the answer of the corporation in such proceeding, an affidavit is filed, alleging that some third person claims the said stock, and that the corporation claims no interest therein, nor colludes with such claimant, but is ready to-dispose of the stock as the court shall direct, the court should require such third person to appear and state the nature of his. claim, and maintain or relinquish the same.</p> <p>4. If, in such a proceeding, the stock should appear to be liable to the lien of the attachment, it ought to be sold for the satisfaction of the same under an order of the court made for that purpose in the attachment proceeding; but it is error for the court to render a judgment against the garnisheed corporation for the value of the stock, unless it appears that the lien of the attaching creditor on the stock was lost by the act of the corporation.</p>

<p>In ¡i case for the specific execution of a contract for the sale of land, though it appears that the price contracted to be given for tlie laud was double its value, yet as the purchaser was fully competent to contract, and there was no fiduciary relationship between him and the. vendor, and very brief acquaintance, and the purchaser made, his own examination of the. laud, though it was mostly covered by snow: in the absence of all fraudulent representations on the part of the vendor the contract will be enforced.</p>

<p>The common and select councils of the city of N having granted leave to C, who was then erecting a building on a lot owned by him, to extend the steps of said building out upon the public street, afterwards ordered the removal of said steps. Upon a bill tiled by C to enjoin such removal—Held :</p> <p>1. Streets in a city or town, though generally subjected to the supervision and control of the municipality, are public highways, the use whereof is for the public at large.</p> <p>2. The common and select councils of 1ST had no authority to grant permission to C to occupy any portion of the public highway.</p> <p>3. The common and select councils of ST, having the general control over the streets, and power to abate nuisances thereon, and remove obstructions therefrom, the order for the removal of the steps of C’s building was within their lawful authority.</p> <p>4. Inasmuch as the original permission to C to place the steps of his building on the public street was beyond the powers of the municipal authorities of U, they are not estopped to order their removal.</p> <p>5. The order for the removal of the steps of C’s building was not void as being a partial and unjust discrimination against him.</p>

<p>In an action by a bank against an endorser of negotiable notes which were discounted in Alexandria and fell due during the war, when the endorser was within the Confederate lines, to prove notice of protest to the endorser within a reasonable time after the war ceased, the plaintiff offered in evidence a resolution of the stockholders, adopted at a meeting held on the 18tli of' July, 1865, at which the endorser was present at a previous period of the meeting, though it did not appear he was present when the resolution was adopted, by. which payment of these notes and others made by the maker at a branch of the plaintiff’s bank within the Confederate lines are declared to be still due to the bank—Held :</p> <p>1. There being no proof that the endorser had any knowledge of the resolution, it was not due notice to him of the dishonor of the notes.</p> <p>2. The knowledge of non-payment of a protested note is not sufficient to bind the endorser. He must have notice that he is looked to for payment.</p> <p>3. The resolution .having been adopted .July 18th, 1801, at least two mouths after communication had been opened between the bank and the director, it was not in time if it had been sufficient as a notice.</p>

<p>In an action of assumpisit tlie writ and declaration is in the name of a plaintiff which indicates that said plaintiff is a corporation, but it is not stated to be a corporation. The defendant pleads non-assumpsit, but does not file an affidavit that the plaintiff is not a corporation. Under the statute it is not necessary that the plaintiff should prove it is a corporation. Code of 1S73, ch. 167, § 40, p. 1094.</p>

<p>1. Ilian action under chapter 145, § 7-9, Code of 1873, to recover damages for the death of a person caused by the wrongful act, &c., of another, it is not necessary to aver in the declaration for whose benefit the action is brought.</p> <p>2. In such an action the jury, in assessing the damages, are not confined to the mere pecuniary loss and injury, hut may give such damages as to them “may seem fair and just.”</p> <p>3. Where, in such an action, the death was caused by the wrongful act of the defendant, it is no defence that the death was the result of the misconduct or neglect of the deceased; but that circumstance may affect the quantum of damages.</p> <p>4. In order to entitle a party to a continuance on the ground of the absence of a material witness, it is necessary that he should have used due diligence to ascertain the materiality, and to procure the attendance of the witness.</p>

<p>1. Where neither party requires a jury, and the whole matter of law and fact are heard and determined and judgment given by the court, and the whole evidence is certified by the court in the bill of exceptions, the bill must be regarded as a demurrer to evidence by the plaintiff in error.</p> <p>2. Where a bond dated in Texas, signed by the principal obligor, a resident of Texas, and by two sureties, residents of Virginia, payable to a resident of Virginia, where the drafts, which were the consideration of the bond, were sent to and received in Texas, and the money borrowed used hi Texas by the principal obligor—Held : To be a contract governed by the laws of Texas, and not affected by the laws of usury in Virginia.</p>

<p>1. Where it does not appear that all the evidence given on the issue joined is stated in the bill of exceptions, an instruction to the jury that if they believe certain, facts stated they must find for the plaintiff, the appellate court must reverse the judgment, on the ground that the facts are too imperfectly stated to enable the court to decide whether or not the instruction is correct.</p> <p>2. In an action against the accommodation endorser of a negotiable note, the fact that the endorser resided at the time in Alexandria, where the notes were discounted, and before the note became due he went into the Confederate lines, and was there when the note was protested, and at the time of such protest he had no known agent in Alexandria to receive notice of the dishonor of the note, is not of itself sufficient to render the endorser liable.</p> <p>3. And in such case, the fact that the endorser had a residence in Alexandria at the time the note was protested, and that a written notice of said protest was left at his residence is not sufficient to render the endorser liable.</p> <p>4. In such a case, the plaintiff having purchased the note after maturity and dishouor, by pinchase at a sale of the effects of the bank which had discounted it, he is not thereby prevented from recovering from the endorser the whole amount of the note, though he paid for it much less than its'nominal amount.</p>

This was an appeal from a decree rendered by the circuit court of Fairfax county, in a cause depending therein, in which William H. Erwin’s administrator was plaintiff, and the heirs of said Erwin were the defendants. The object of the suit was to have a sale of a part of the real estate of William TI. Erwin, deceased, for the payment of his debts.

<p>1. The common law rule of presumption of payment of bonds arising from the. lapse of time has not been affected bv the ' statutory provisions adopted at the revisal of 1S4Í). prescribing the limitation of sneli instruments.</p> <p>'2. When more than twenty years has elapsed between the date of a bond and the institution of suit thereon, it affords a presumption of payment, which the, obligee may rebut, by satisfactory evidence; and whether the evidence is sufficient for'that purpose, is a question for the jury, and not for the court.</p>

<p>I. 31 leases to F a lot in Norfolk for ten years, renewable every ten years until 31 shall elect to take the buildings which may be put upon it and pay for them at valuation. F builds, and then 31, as owner of the land, and F as owner of tlie. buildings, join in a declaration for insurance in the Mutual Assurance Society of Virginia; which was granted—Held :</p> <p>3. The land is not insurable, and 31 is not liable to the assurance society for the quotas on the insurance.</p> <p>2. As F did not have the fee in the land or a perpetual lease, and 31 may take tlie buildings at tlie end of any ten years, it seems that F did not have such an interest in tlie property as was insurable in the Mutual Assurance1 Society, according to its constitution.</p> <p>II. The lease and buildings having been sold to JV, and he dying, one of his nine children, for himself and liis co-heirs, insured the property in the societj-, and this continued until 1864, when it was insured in other insurance companies—Held :</p> <p>1. By insuring in other companies without complying with tlie regulations of the assurance society, tlie insurance in that society, according to its express rules, became null and void. And as the society was no longer liable for loss, the assured is only liable for the quotas due at the time tlie insurance became null and void, and is not liable for any quotas assessed after that time.</p>

<p>1. If tlie grantee in a deed be a bona fide purchaser for a valuable consideration, his or her title is unassailable, whatever may have been the motives or intentions of the grantor in executing the deed. It is absolutely essential that both parties shall concur in the fraud, to invalidate the deed.</p> <p>2. Fraud cannot be presumed; it must be proved by clear and satisfactory evidence.</p> <p>3. Marriage is a valuable consideration, sufficient to support a conveyance of property, even against creditors; and in such a case the wife is deemed a purchaser of the property settled on her, in consideration of the marriage, and is entitled to hold it against all the world.</p> <p>4. However much a man may be indebted, an ante-nuptial settlement, made by him in consideration of marriage, is good against his creditors, unless it appears that the intended wife was cognizant of the fraud. And even though it conveys his whole estate, it is not, simply on that account, void; and when a settlement is made in contemplation of marriage, the law' presumes it was an inducement to it, and the courts cannot assume the contrary to be the fact.</p> <p>5. The fact of the cohabitation of the parties and the birth of children before the marriage will not avoid the conveyance.</p> <p>6. Coutts v. Greenhorn, 2 Munf. 3G3, examined and followed.</p>

<p>1. When partners as such are declared bankrupt, their property, both partnership and individual, is to be administered under section 36 of the bankrupt act of 1SG7, in the bankrupt court; and every creditor, whether individual or social, must prosecute his claim in that court.</p> <p>2. Where a partnership is dissolved, and the individual partners are declared bankrupts in different bankrupt courts, in different states, eacli with his own assignee, and in then schedules make no mention of partnership) debts due to them or by then), a creditor of the partnership may proceed in a state court to subject the partnership effects to the payment of the partnership) debts.</p> <p>3. In such case, one creditor of a partnership) cannot attach the partnership effects so as to obtain a preference over the other partnership creditors. But his bill, though proceeding only for his own debt, may be treated as for the benefit of all the partnership) creditors, and an account of the creditor’s debts and of the partnership) effects may be taken, and the effects distributed among the creditors who establish their debts.</p>

<p>Iu a suit for the sale of laud to satisfy liens upon it, there was an order for ail account of the liens and their priorities, and iu A 1S60 the account was returned arranging the debts in twenty-four classes, of which the 2d, íid and 13th were debts reported to be due to S. In I860, the report was confirmed, and there . was a decree for the sale of the land, one-tenth cash and the balance at one and two years. The sale was made to J and confirmed, and J directed to pay the money to tiie receiver. In 1S70, T filed his petition in the cause, claiming that the debts mentioned in said 2d, 3d and 13tli classes were his, acquired in 1S64, and asking that the receiver might be required to report how much of the purchase money he had received, and what he had done with it; and if it had not been paid, for a resale of the, laud. The case was referred to the commissioner, and J appeared before him, claiming that said debts were his, and contesting the claim of T. S did not ■claim them—Held :</p> <p>1. That it was competent for T, though not a party to the suit, but who had acquired subsequently the liens of one who was a party, by petition or motion to require a report from the receiver showing the amount of the, purchase money in his hands, and to have it applied to the satisfaction of the. liens according to their priorities, and to direct a resale of the land for the balance of the purchase money due, pursuant to the decree of sale. ,</p> <p>2. It was not. necessary that he should have proceeded by bill for that purpose, or to have made the purchaser a party defendant to his petition, or to have required him to answer.</p> <p>3. If S had disputed tía1, claim of T, then it would have been proper for T to have asserted his claim by supplemental bill, or by an original bill in the nature of a supplemental bill.</p> <p>-I. Before there could be a decree for a resale of the property it was proper and necessary that the purchaser should have notice of the proceeding. The approved practice has been to proceed by t-lie service of a rule upon the purchaser, to show cause why the lands should not be resold.</p> <p>3. Though no rule was served on the purchaser in this ease, he. had notice of the proceeding, and came forward to show canse in his own chosen way. There was no need, therefore, for a rule.</p> <p>O. The purchaser might have moved the, court for leave to answer the petition of T; or he might have filed a supplemental bill, or an original bill in the nature of a supplemental bill, and put the matters iu issue on which lie relied.</p>

<p>1. A judgment in tlie name, of tlie Commonivealth, for IV, treasurer of C county, founded on a notice in tlie name of tlie Commonwealth proceeding by IV, late treasurer of C, against F, tlie collector of township 31, and liis sureties, upon liis official bond, is a judgment in favor of tlie Commonwealth.</p> <p>2. On such a judgment the Commonwealth at the relation of T. auditor of accounts, may maintain a suit against F and his sureties.</p> <p>3. The judgment having been recovered in C county, the suit may be brought in that county. Except in cases where it- is otherwise specially provided, the Commonwealth may prosecute her suits in any of the courts in which other parties may prosecute suits of like character. And this case is not embraced in the statute, Code of 1S73, ch. ICG.</p> <p>4. The 3d exception in the, iwoviso, to the 1st section of article xi of the constitution of the state, in relation to homestead exemptions, which is “For liabilities incurred by any public, officer, or officer of a court, or other fiduciary, or any attorney at. law for money collected,” embraces the liabilities of a collector of taxes and also of his sureties in his official bond. And therefore the said sureties are not entitled to their homestead exemption as against the Commonwealth in a proceeding against them and their principal to recover the amount of taxes for which the collector had failed to account.</p> <p>5. The property of the sureties being covered by their homestead exemption deeds, the Commonwealth may go into equity to enforce her judgment against- them.</p>

<p>An attorney employed in a canse is not a competent commissioner to take an account ordered in tlie canse.</p>

These cases were heard together and involve the same question. Mortimer IIogan had a license as a bar-room liquor dealer at his house Ho. 3210 Lester street, in the city of Richmond, and Moll had a similar license to keep such a bar at his house, near the second market-house. Their returns under the Moffett register law was such as that the judge of the hustings court of the city directed them to he summoned to show cause why their licenses should not he revoked and annulled.

<p>A homestead exemption cannot he claimed against a fine due the commonwealth, imposed for a violation of the criminal laws.</p>

<p>The act, Code of 1873, eh. 183, § 3, which authorizes the waiver of tiie homestead exemption, is not in coftflict with the xitli article of tiie constitution of the state ; and if a party, executing his bond or note, waives his homestead exemption as to tiie bond or note, neither lie nor his wife can set up said homestead exemption as against the said bond or note.</p>

<p>1. F and his wife E join in a deed conveying laud held by a trustee-for the separate use of E ; to H, F acknowledges the deed, but though E signs it, she does not acknowledge it. H has no equitable title to the land which can be enforced against E.</p> <p>2. T, the trustee of E, by F contracts with I-I to sell the land to him; but E does not join in this contract, and there is no special provision in the deed of trust for E authorizing her to contract or convey. She is not bound by the contract.</p>

This was a suit in equity brought in 1873, in the circuit court of 'Warwick county, and afterwards transferred to the circuit court of Elizabeth City county by Mary A. Heilson, widow of Hall Heilson, deceased, and her children, against Samuel M. Bowman and others, to set aside two contracts which the plaintiffs had made with ■said Bowman.

This was a suit in equity in the circuit court of Gloucester county, .brought in 1871 by Mary E. Bentley, a married woman, by her next friend and her children, against Thomas B. Rowe, Thomas S. Taliaferro and another, for a settlement of the accounts of said Rowe and Taliaferro as trustees of the plaintiffs, and for general relief.

<p>This was an application to the supreme court of appeals, by James M. Tyler, sergeant of the city of Richmond, for a writ of mandamus to compel William F. Taylor, auditor of accounts of the state, to receive coupons from bonds funded under the act of March 30th, 1871, which the said sergeant had received in payment of a fine which had been imposed upon one David C. Mayo, by the hustings court of the city of Richmond. The only question considered is, whether the auditor of accounts was the proper person to receive the fines.</p>

<p>The 17tli section of tlie charter of the Petersburg Railroad Company, which exempted the property of tlie comx>any from taxation, has been repealed by the act of April 2,1S53, which united it with the G-reeuesville and Roanoke railroad company: which act was accepted by the company; and the property of the said company is now subject to taxation.</p>

<p>1. Tlie defendants in an indictment for a nuisance by obstructing-a street, were the joint owners of a house and a lot of two acres, fronting- 264 feet on Porter street, in Manchester. The house was ancient, and had been held by the defendants and those under whom they claimed for more than sixty years, according- to its present enclosures. The city council of Manchester holding that the said enclosures were in Porter street, directed that they should be removed, and the defendants obtained an injunction to prevent it; and this suit was pending in the same court. When the indictment was called for trial, the defendants moved that the case should be continued until the injunction suit was decided—Held : The indictment was the appropriate remedy in such a case; and the continuance was properly refused.</p> <p>2. The report of a case in a printed volume of reports of decisions of the court of appeals of Virginia, the original record of the ease having been destroyed, held admissible in evidence to show that such a map as that mentioned in the report, as Watkins’ map, actually existed and was in the papers in said cause;. and thereby to lay a foundation for the introduction, as further evidence in the cause, of a map purporting to be and certified as a map of Manchester by the clerk of the superior court of chancery of the Richmond district.</p> <p>3. Copies of two maxis attached to two deeds for lots in Manchester, recorded in the clerk’s office of Chesterfield county, one deed dated August 10th, 1816, and the other January 3d, 1847, field to be admissible for the pmpose of ascertaining the scale and verifying the maxi of Manchester certified by the clerk of the superior court of chancery for the Richmond district, which liad been previously admitted as evidence; but for this xiuipose only.</p> <p>4. S. Taylor, under whom the defendants claimed the house and lot, was a member of the. council of Manchester in 1S55— Held : That certain proceedings of the council at that time when he was present, in regard to what is called the Percival survey of the said town, were admissible evidence for the purpose of showing said S. Taylor’s connection with said survey.</p> <p>5. William Byrd having laid off tiie land comprised within certain limits of tlie town of Manchester, into lots and streets, and made a map of the town so laid off, showing tlie lots and streets, and having sold lots with reference to said map, all ■ tlie streets designated on said map were thereby irrevocably dedicated to tlie public.; and the public have a right to have tlie streets, as designated on that map, throughout their entire length and width, thrown open forever, and kept free from any and all encroachments or obstructions.</p> <p>6. Tlie act of the house of burgesses, passed November, 1709. establishing the town of Manchester as laid off into lots and streets, was an acceptance on the part of the colony of Virginia of the. streets thus dedicated to the public.</p> <p>7. The streets of tlie city of Manchester having been dedicated to the public by William Byrd, when he laid off the town, and this dedication having been accepted by the act of the house of burgesses in November, 1769, the streets are public highways; and any occupation of a street, or a part of a street, by the owner of an adjoining lot, however long continued, cannot give such oeenpant a right to hold it, or bar tlie right of the public to the use of tlie street to its full width and extent.</p>

On the 5th of Uovember, 1877, the grand jury of the hustings court of the city of Richmond found the following indictment against George Johnson: The grand jurors of the Commonwealth, for the body of the city of Richmond, on their oaths, present that George Johnson, on the 30th day of October, in the year one thousand eight hundred and seventy-seven, at the said city, and within the jurisdiction of the said hustings court of the city of Richmond, in the night of that day,…

<p>An indictment for a felony is endorsed “A true gun,” wliicli is. signed by the foreman. The jury present the paper in court as an indictment, it is read to them by the clerk as their indictment, and assented to by them; it is entered on the record as an indictment, and the prisoner is tried upon it upon the plea of not guilty. Upon a motion to arrest the judgment—Held : •Ho endorsement is necessary on the indictment to constitute it such; and the mistaken endorsement cannot invalidate it.</p>

<p>1. To carnally know a female child under twelve years of age, whether with or without her consent, is a rape.</p> <p>2. To attempt to carnally know a female child under twelve year’s of age, whether with or without her consent, is an offence embraced in the statute, Code of 1873, ch. 195, § 10, and is punishable with confinement in the penitentiary for a period of not less than one nor more than eighteen years.</p> <p>3. The statute provides that the offence charged may be, at the discretion of the jury, punished with death, or confinement in the penitentiary. This is a death penalty, and the attempt to do the act forbid, is embraced in the statute, Code of 1873, ch. 195,§ 10.</p> <p>4. In a prosecution for carnally knowing a female child under twelve years of age, the jury find the prisoner not guilty of the apt, but guilty of the attempt to commit it. The only ■witness as to the act, was the child, who was proved by her mother to be between ten and eleven years old. The court below having refused to set aside the verdict and grant a new trial, the appellate court will not’reverse the judgment.</p>

<p>IV, agent in Fredericksburg for Yew York owners of lumber, proposes to P, captain of a vessel returning north, to furnisli him .with a cargo at §5.50 per 1,000 feet, if P would allow IV two and a half per cent, on the amount P received as freight on the lumber. This P refused. IV made another proposition, which P also refused. The freight was then fixed at $5.50 per 1,000 feet of said lumber, and the vessel loaded the same, IV being in and about the, vessel working- and superintending- the loading, and he employed two men to assist the crew, and he paid them. These, acts were those, of a stevedore. After the work was done IV received from P two and a half per cent, on the freight. IV did not act as a ship-broker.</p>

<p>If an indictment for a statutory offence, by following the language ^le statute, cl,£U'ges expressly or by necessary implication, every fact necessary to constitute the offence, it is sufficient.</p> <p>The provision of the act of the general assembly of March 30tli, 1877, known as the Moffett register law, which directs that the cities of tlie Commonwealth shall be first supplied with the registers, is not unconstitutional as being an unjust and partial discrimination against liquor dealers in the cities.</p>

<p>A person selling liquor without a license at a time after the passage of the Moffett register act, but before the registers provided for in that act were supplied, is not liable to the punishment of imxnlsonment imposed by that act, but only to the punishment by fine imposed by former revenue laws.</p>

In January, 1877, the grand jury of the hustings court of the city of Bichmond indicted John Maybush for subornation of perjury.