Volume 71 — Grattan's Virginia Reports

This case was heard in Staunton, hut was decided in Richmond. It was an action of debt brought in the county court of Shenandoah in September, 1871, but afterwards transferred to the circuit court of that county, in the name of the Commonwealth. of Virginia, suing at the costs, &c., of Ridgely, Hampton & Co., against John J. Grandstaff, late sheriff of Shenandoah county, and the surviving sureties in his official bond. The declaration contained five counts.

This was an action on the case in the circuit court of the city of Lynchburg, brought in July, 1873, by W. W. Hardwicke against George II. Burch. Burch had been for some time, and continued to be, mayor of the city, and Hardwicke was chief of police of the city. In May, 1873, Burch, acting under the authority claimed by him as mayor of the city, removed Hardwicke from his office of chief of police.

This was a suit in equity in the circuit court of Mecklenburg county, brought in March, 1865, by E. T. Owen to enforce a judgment which he had recovered against Luther Pixley, by subjecting certain real estate which Pixley and wife had conveyed in trust to secure a debt due to W. T. White.

Mrs. Ann P. Hall, of Chesterfield, upon her marriage with Edward Hatcher, in February, 1870, conveyed, with his assent, all her estate to a trustee, for her separate and exclusive use, with full power to dispose of it, either in her lifetime or by will. She died in August, 1871; and after her death a paper was propounded as her will to the circuit court of Chesterfield for probate.

In August, 1877, John R. Cngbill and Marcus A. Cog-bill, of Chesterfield county, in behalf of themselves and all other creditors of like class, filed their bill in the circuit court of the city of… Held: as treasurer, $10,000 of registered stock of the United States, deposited by the Universal Life Insurance Company, in accordance with the laws of Virginia. The two cases were consolidated, and the Universal Life Insurance Company demurred, and answered.

William B. Gates, of Chesterfield county, died in 1868, leaving a widow and five infant children surviving him. Of these children three were by a former wife. He left a will which was duly admitted to probate in the county court of Chesterfield, and Kobert G. Bass qualified as his executor.

This was a suit in equity in the circuit court of Buckingham county, brought in September, 1869, by Walker J. Patteson and others, devisees and legatees of James M. Patteson, against the executors, devisees and legatees of Thomas M. Bondurant, deceased, and Willie Ann Patteson, in her own right and as executrix of James M. Patteson, deceased, to subject the estate of said Thomas M. Bondurant, and especially a tract of land called Oak-lawn, to pay the amount of a bond of…

This was a suit in equity in the circuit court of Northampton county, brought in October, 1870, by William J. Eobins, against Henry H. Ayres and Willis Thompson, to entorce the payment of a balance of purchase money of land sold by said Eobins and his brother, Joseph W. Eobins, who had since died, to said Ayres and Thompson. There was a decree in favor of the plaintiff; and thereupon the defendants obtained an appeal. The case is fully stated by Judge Burks in his opinion.

This was a suit in equity in the circuit court of Nottoway county, brought in July, 1878, by John E. Jones, styling himself surviving commissioner of the circuit court of Nottoway county, in the chancery cause of Williams against Williams & als., sometimes styled Williams’ guardian against Street and wife, &c., E. P. Lyon and O. P. Lyon, his wife, formerly O. P. Williams, and a number of other parties, children of Eliza J. Williams, deceased, against Thomas W. Williams, John…

This was an application to this court by James Clarke for a writ of habeas corpus. The case is stated by Judge Christian in his opinion.

This was a bill of interpleader in the circuit court of Norfolk county, brought in 1873 by Mary Ann L. Sharp, executrix of William W. Sharp, deceased, against Holt Wilson, trustee, the Portsmouth Orphan Asylum, Elizabeth S. Beaton, administratrix of David E. Beaton, deceased, John H. Gayle and others, to settle the rights of said Orphan Asylum, Beaton’s administratrix and Gayle,, in a fund in her hands as administratrix of her husband,, which was the balance of the purchase…

This was a bill filed in the circuit court of Culpeper county in November, 1872, by Elias Compton, to enjoin the sale of a tract of land by John C. Major, trustee in .& deed of trust, executed by Compton and wife, to secure a debt due to Langdon C. Major, the balance of pur•chase money on land sold by Langdon C. Major to Compton.

This was a suit in equity in the circuit court of Fauquier county, brought in February, 1869, by Caroline R. Dulaney, the widow, and two of the children of Bladen Dulaney, against Richard H. Carter, the executor, asking for an account of Carter’s administration, and that they might have liberty to surcharge his accounts, &c. The only question in this court was as to the right of Carter to a credit for $5,900, which he had invested in Confederate bonds.

This was a suit in equity in the circuit court of the town of Danville, by the Bank of Greensboro’ against A. B. Chambers, and Fannie E. Chambers, his wife, and Thomas J. Patrick, to subject a house and lot in Danville to satisfy a debt of said Fannie E. Chambers. Before the marriage of A. B. Chambers and his said wife, he and Patrick had been engaged in the manufacture of tobacco in the town of Danville.

This was an action of covenant in the’ circuit court of the city of Richmond, brought in April, 1873, by the Richmond and Petersburg Railroad Company, against Robert B. Kasey and five others, to recover from the defendants an amount of money which the plaintiffs alleged Kasey, as their ticket and freight agent, had received and had not accounted for. The action was founded on the bond of Kasey, as such agent, the other defendants being his sureties in the bond.

<p>A bill filed for the reformation of a deed of marriage settlement prayed that the deed might be so corrected as to secure the property to the married woman, free from the marital rights of her husband, “as if she were a feme sole, and with power to dispose of the same by a writing in the nature of a deed or will; ” and all parties interested, by their answers, concurred in the prayer of the bill; and the decree directed that the property should be, and was, secured to the said married woman, “ as fully and completely as if she were a feme sole, free from the debts of her husband, and in no manner liable for his debts or contracts ”—Held : That the court might look to the bill and answers for the purpose of ascertaining the proper construction of the decree; and that the decree when so construed operated to confer upon the married woman power to dispose by her sole act of the real estate settled upon her.</p>

In April, 1868, Jesse Prunty brought an action of assumpsit in the circuit court of Pittsylvania against Mitchell & Cobbs, partners. At the June term of the court they appeared by their attorneys and filed the plea of non-assumpsit, on which issue was made up. At a special term held in July, 1870, the case was tried, and was a verdict and judgment in favor of the plaintiff for $1,092.94, with interest from the 13th of June, 1867.

Lncllam, Heineken & Co., and Taliaferro & Musgrove, judgment creditors of William Crumpton, filed their bill in the circuit court of the city of Lynchburg to subject certain real estate to the payment of their judgments against said Crumpton. The first judgment was obtained November 17th, 1866, and docketed in the hustings court of Lynchburg January 7th, 1877, and the second was obtained and docketed in said hustings court October 15th, 1866.

<p>1. That the judgment of one state may have in another the effect provided for by the constitution of the United States, Article IV,.. section 1, and the act of congress of May 26, 1790, the court in which the judgment was rendered must have had jurisdiction of the case when it pronounced the judgment.</p> <p>i. Whether or not a defendant resides in the state in which the action is brought, he must be summoned, or appear in person or by attorney, in the suit, in order to give the court jurisdiction of the case, so as to give its judgment the effect in another state provided for by the constitution and act of congress.</p> <p>:. It is perfectly competent for a defendant, in an action in one state, on a judgment rendered in another, to plead and show in his defence that he was not summoned, and did not appear, in person or by attorney, in the suit in such other court; and that, too, even though it be expressly stated in the record of the suit in that court that he was actually summoned and did so appeal'.</p> <p>:. This defence ought to be made by special plea.</p> <p>5. One member of a dissolved partnership has no authority, unless specially given, to retain an attorney to defend the other members of the late firm in an action brought against them. Such authority does not result from the partnership itself.</p> <p>6. A judgment rendered in another state against all the members of a partnership, after the dissolution of the partnership, does not personally bind a member of said partnership not served with process and not appearing in the case, although the other members were served, or appeared and caused an appearance to be entered for all.</p> <p>7. A judgment in Mew York under the Code of procedure of that state against the members of a dissolved partnership, one of whom was not served with process and did not appear in person or by attorney in the suit, is not such a judgment as is contemplated by the constitution and act of congress, as to ' such person.</p>

<p>Tn an action of debt by W for the use of G, against the executor of M, upon two bonds purporting to be executed by M and B, the administrator pleads non est factum, and payment. The only proof of the execution of the bonds by M, is proof of an acknowledgment by M to an agent of G, made after the assignment to G, and the proof as to the payments are of payments made by B to G in the lifetime of M—Held : G is not a competent witness under the statute to testify in his own behalf.</p>

This was an action of debt in tbe county court of Eichmond county, and afterwards transferred to the circuit court of the county, brought by William Cammack against T. W. Soran, a non-resident of the state, to recover the sum of $1,114.89 with interest.

This was a suit in equity in the circuit court of Danville, brought in October, 1873, by March, Price & Co. against A. B. Chambers and John G. Raney, to subject to the satisfaction of a judgment they had recovered against Chambers a lot in the town of Danville which had been once owned by Chambers, but which Raney claimed as his property. The circuit court dismissed the bill, and the plaintiff applied to this court for an appeal; which was allowed.

This case was argued at Richmond, but was decided at “Wytheviile. It was a suit in equity in the corporation court of Lynchburg, brought in February, lb77, by C. Fannie Latham, by her next friend, against her husband, liobert F. Latham, for a divorce.

This case was heard at Richmond, but was decided at Wytheville, It was a creditor’s bill in the circuit court of Pittsylvania county, brought in 1870 by James McAden and others against W. W. Keen and Robert A. Walters and others, purchasers of real estate from Keen, to subject the said real estate to satisfy the judgmeats of tlie plaintiffs. There were two amendments of the bill bringing in other parties.

John Helm, of the county of Floyd, died intestate in August, 1874, leaving a widow, but no children; and his mother, brothers aud sisters, and the children of some who were dead, were his heirs and distributees. He left several small tracts of land, of the value of between $2,500 and $8,000, and personal property appraised at $1,533. Joseph Helm, his brother, qualified as administrator on his estate.

This case was heard at Richmond, but was decided at Wytheville. It was a petition presented to this court by Samuel M. Page, asking the court for a writ of mandamus to William J. Clopton, judge of the hustings court of the city of Manchester, to sign three bills of exceptions to the judgment of the judge imposing a fine upon the petitioner for a contempt of court.

On the 30th day of March, 1857, Amos Worrell and Darthula, his wife, then of the county of Carroll, between whom there was then pending a suit for a from bed and board, brought by him, compromised the matter, and in pursuance of the compromise he settled on her a portion of his estate, to be “secure from his control and disposition and free from all liability for his debts and obligations.” Accordingly, by deed dated on that day and duly recorded, they conveyed to William…

This was an appeal from the decree of the circut court of Bland county dismissing a bill filed by Abraham Wampler against his son, Ephraim Wampler, to set aside a deed which the plaintiff and his wife had executed, conveying a tract of land to the said Ephraim-Wampler. The defendant demurred to the bill.

This was an appeal from a decree of the circuit court of Tazewell county, rendered on the 18th of November, 1875, in a cause in which Nancy Harman and her two children, who were infants, were plaintiffs, and J. Mosby Davis, administrator of E. H. Harman, deceased, and his sureties were defendants.

These were applications by the Virginia and Tennessee Eailroad Company to the county court of Washington County, to be exonerated from assessments of taxes for county, township, school and road purposes, upon them real estate in the county, .consisting of that part of their road lying in said county. It appears that the several township assessors had placed the said land on their books, at a valuation fixed by them, and the tax-tickets had been issued.

This is a sequel to the case of Snavely v. Harkrader & als., reported in 29 Gratt. 112.

This was a writ of ei’ror and supersedeas to a judgment rendered by the circuit court of Grayson County, upon an appeal from a decision of the board of supervisors of Grayson County, upon a claim against the county, presented to the said board of supervisors by James W. Preston. The board of supervisors rejected the claim, and upon appeal the circuit court affirmed the judgment. The facts of the case are very fully stated in the opinion of the court, delivered by Moncure, P.

In May, 1872, the executrix of John SexitoD instituted a suit in equity in the county court of Wythe county against Benjamin Beville, James A. Beville, Jane E. Moore and William T. Beville, in his own right and as trustee for Susan Beville and others.

In January, 1874, Valentine Thrash brought his suit in equity in the circuit court of Eoanoke county, to enforce the lien of a judgment which he had recovered at the November term, 1873, of that court, against Tazewell Price.

In January, 1872, Samuel W. Cecil, suing for the benefit of James S. Witten, instituted a suit in equity in the county court of Russell county, to subject the land of John Gr. Duff' to sátisfy a judgment for $199.80, with interest from the 20th of April, 1860, and $6.96 costs, which said Cecil had recovered against said Duff in the county court of Tazewell county in August, 1860.

This was a writ of error and supersedeas to judgments of the circuit court of Russell county, rendered against Robert E. Withers. The case is fully stated by Judge Christian in his opinion.

In Rovember, 1872, David C. Kent, administrator of Gordon Cloyd, deceased, brought his suit in equity in the count}’ court of Pulaski county, which was removed to the circuit court of the county, against Isaiah II.

<p>I. In contemplation of the marraige of B and L, B hy deed in which L joined, conveyed her property consisting of personalty and a life estate in land, to M, in trust for her separate use, with full power in her to dispose of the rents and profits as if she had never married, and to transfer in such proportion and form as she shall from time to time direct, notwithstanding her coverture, by any writings under hand and seal attested by three or more credible witnesses, or by her will, executed and . attested in the same mode. By.a paper executed as prescribed in the deed, B directed her trustee to purchase two lots to be paid for out of her trust fund, and this was done and they were conveyed to the trustee on the same trusts. These deeds were duly recorded. The trustee dying, C and AV were appointed trustees. Afterwards B, by deed executed by herself alone, and acknowledged by her in the clerk’s office without privy examination, upon full consideration, conveyed the lots to AV, and he died, and they were sold to different purchasers. B died intestate in 1862; and in March, 1875, her heirs filed their bill against the purchasers to recover the lots—Held :</p> <p>1. The deed of marriage settlement directing how the trust fund may be disposed of by B, and the lots having been purchased under her directions, as prescribed in that deed, were a part of the trust estate, and being real estate could only be conveyed in the mode directed in the deed; and therefore the deed from B to AV did not pass the title to the lots to AV.</p> <p>2. The purchasers holding under AV, are affected with the notice of the trusts, and will be treated as trustees for Mi's. B and her heirs.</p> <p>3. It is not a ease in which equity will aid a defective conveyance in favor of a bona fide purchaser. .</p> <p>4. Mrs. B being under coverture until her death in 1862, and the statutes of limitations having been suspended until December 31st, 1869, the statute of limitations does not bar the claim of the heirs of B; and under the circumstances the delay in bringing the suit does not bar the claim.</p> <p>5. Though there is a covenant of general warranty in the deed from B to W, yet there is nothing to show that she intended to bind her estate by that covenant, and no personal decree could have been made against her, and it does not appear that the heirs of B have received property in which the purchase money of the lots was invested, the purchasers are not entitled to have the purchase money returned out of the estate of B, or to subject the lots for it.</p>

This case was decided in October, 1877, but there was a motion for a rehearing of the decree, which was overruled at this term of the court. It was a case of caveat in the circuit court of Augusta county, in which A. D. Trotter and others were the caveators, and Isaac hTewton- and Major D. Vines were the caveatees. The case was submitted to the decision of the judge, and he rendered a judgment for the caveatees.

This was an action of trespass on the case in the circuit court of Shenandoah county, brought in December, 1874, by the administratrix of Bath an GL Sherman, deceased, against the Baltimore and Ohio Bailroad Company, to recover damages for the killing of the said Sherman upon the road of the said company.

<p>The case is fully stated by Judge Moncure in his-opinion.</p>

<p>The case is stated in the opinion of Burks, J.</p>

This was a suit iu equity in the circuit court of Rockingham county, brought by The Hagerstown Agricultural Implement Manufacturing Company against J. R. and J. Y. Long, late partners, and S. G. S. Long, Sarah Long, Rannie Long and others, the objectof which was to subject lands which had belonged to said pai’tners to the payment of a judgment for $910.12, with interest, which the plaintiff' had recovered against J. R. and J, Y. Long at the January term, 1875, of said court.

In April, 1870, Martha Ann Martin, executrix of John S. Martin, deceased, filed her bill in the circuit court of Albemarle county, in which she set out that in March, 1859, James W. Mason, Thomas Staples, John S. Martin and John O. Lewis entered into a partnership under the name of Mason, Martin & Co., for carrying on a milling and mercantile business at the town of Seottsville in said county, which was continued until February, 1862, when it was dissolved by the death of…

<p>B, who is a machinist, sells to P a steam saw-mill and fixtures, <&c., and undertakes to put in good order, the price of the whole being $1,790. S had advanced the money to P to pay for the mill, &e., and B and S go together to the place where the mill is to be delivered to P. There, the mill, &c., are delivered to P, and at the instance of B, P gives his note to B for $145, who assigns it to S, and P gives his three bonds to S for the balance of the purchase money, and a deed of trust on the mill and other property, real and personal, to secure the bonds. B and P then take the mill to the laud of F, where it is to be put up, and B sets it up. The mill and fixtures were not in fact put up in good order, and when the trustee advertises the property for sale, P enjoins the sale on the ground that B had failed to put the mill and fixtures in good order, and that it” would not work, and that P had sustained loss to a large amount, which he states. The evidence being very contradictory, the court directs an issue to ascertain what amount of injury, if any, P had sustained by any breach of warranty or misrepresentations falsely and knowing their falsehood made by B as to the condition of the said mill. The jury return a verdict for $600 damages in favor of P—Held :</p> <p>1. The giving of the bonds by P to S was not a novation of the debt of P to B, and P is entitled to have the damages sustained set off as a credit on his bonds to S.</p> <p>2. Statements of B as to his undertaking to put the mill and fixtures in good order, made when the mill was delivered, in the presence of S, and while he was putting it up on the farm' of B, were part of the res gestee, and competent evidence against S. ■ -</p> <p>3. Though S objected to the statements being given in evidence and excepted, yet as the exception does not state what the statements were, the appellate court cannot . know that S was injured by them.</p> <p>5. It being an issue out. of chancery, the court might render a decree in the cause upon the proper pleadings and evidence, without regarding any improper evidence, and if the competent evidence justifies the decree it will not be reversed because incompetent evidence was admitted before the jury.</p>

<p>In 1854 C conveyed a tract of land to B in trust to secure, first, debts clue to P, and, second, a debt due to K. B being required by K to sell the land, C enjoined the sale, making only B and K parties defendants, and filing the deed as an exhibit with his bill. In this suit there was a decree axipointing B a special commissioner to sell the land, and at the sale K purchased it. This sale was 'confirmed, and B was directed to convey the land to K, and take a deed of trust upon it to secure the purchase money. B conveyed the land to K, referring to it as the land in the bill, &c., mentioned in the suit, but instead of talcing the deed of trust upon this land, took it upon another tract of K, which proved to have been covered by other prior liens to its , full value. In 1862 K sold and conveyed the land bought under' the decree to W and S, the deed referring to it as the land purchased under the said decree. J, as assignee of P, filed his bill against W and S and others to enforce the lien of the deed of 1854 to satisfy his debt, and W and S answered, claiming that they were bona fide purchasers without notice, and they averred that, living some distance from the court-house of the county in which the land lay, and which was difficult of access by reason of the war, they refused to purchase unless K would bring the certificate of the clerk of the court that there were no liens or incumbrances on the land; and that the clerk did examine the records in his office, and did give the certificate that so far as the records of his office showed, there was no lien or incumbrance on this land. And they then purchased and paid all the purchase money and received the deed—Held r That W and S were bound to know all that the said suit disclosed, and that the certificate of the clerk was not sufficient to entitle them to the defence of bona fide purchasers without notice.</p>

In June, 1869, E. H. Long brought an action of assumpsit in the circuit court of Frederick county, against P. M. Ryan, to recover the sum of $621.67, with interest on $470.35, a part thereof, from June 14th, 1869; and at the same time he sued out an attachment against estate and debts of Ryan as an absent defendant. This attachment was served on the Winchester and Strasburg railroad company as garnishee.

In 1873, William B. Isaacs & Co. filed their hill in the circuit court of Frederick county, stating therein, substantially, that they were holders of a large amount of notes of the old Bank of the Valley in Virginia, and of the Farmers Bank of Virginia; that their claims as such note holders were audited, reported and confirmed against the said hanks in the circuit court of the United States for the eastern district of Virginia, in the chancery causes therein pending, in…

This case was decided in September, 1876, but there was a motion for a rehearing of the decree, which was ovei’ruled at the present term of the court. It was a creditor’s suit in equity, instituted in March, 1870, in the circuit court of RocMngham county, by the executor of Jacob Blose, deceased, against the administrators and heirs of Jacob Miller, deceased, to subject the lands of said Miller to the payment of his debts.

This was a creditor’s suit in equity instituted in March, J87Q, in the circuit court of Rockingham county, by Samuel Shacklett against S. B. Jennings and his children, to subject the lands of said Jennings to satisfy judgments recovered against him. The only question this case was whether certain lands in the possession of Jennings were his own, or whether there was a result-£rug£ favor 0f hi8 children.

<p>The case is sufficiently stated in the opinion of Judge Anderson.</p>

In April, 1875, Thomas M. Miller, administrator of Cornelius Whittington, deceased, instituted an action of trespass on the case in the circuit court of Frederick county against the Baltimore and Ohio Kailroacl Company to recover damages for having occasioned the death of Whittington. The declaration contained three counts.

This was a creditor’s bill in the circuit court of the county of Rockingham, brought in June, 1874, by the administrator of Jacob G. Spitler, deceased, and others, against Hugh Connell, the surviving administrator of George ~W. Cupp, Enoch L. Brower, administrator of Samuel Parent, deceased, who in his lifetime was one of the administrators of said Cupp, the heirs of Cupp and Parent, Solomon Garber, Abraham Paul, John M. Kiser and a number of other parties, to have a…

This was an action of debt in the circuit court of Warren county, brought by Isaac K. King against M. B. Buck as maker, and five others as endorsers, of a negotiable note for $2,000, dated the 21st of February, 1875, and payable one hundred and twenty days after date, and $2.61 costs of protest. The only question in this court was, whether interest was to be allowed upon the amount of money which was the consideration of the note, and if so from what time.

This was an indictment against George Wolf for arson in the county court of Washington. There was a verdict finding the prisoner guilty and fixing the term of his imprisonment in the penitentiary at six years, and a judgment accordingly. The prisoner thereupon obtained a writ of error to the circuit court, where the judgment was affirmed; and he then applied to this court for a writ of error, which was allowed. The case is stated by Judge Christian in his opinion.

<p>M. was indicted for selling liquor at Prillman’s precinct, in the county of Franklin, without a license. The jury found him guilty, and he moved to arrest the judgment because the proof was not that he sold at the house or within the curtilage at Prillman’s precinct, hut in the woods some three or four hun- ■ dred yards from the house. The court overruled the motion and rendered judgment on the verdict. It not appearing that the hill of exceptions contains all the evidence, this court must presume that there was proof that the sale of liquor was at Prillman’s precinct, aiid that it was in the county of Franklin.</p>

This whs an indictment in the county court of King William county against Charles Lawrence for rape. The case is stated by Judge Moncure in his opinion.