Volume 73 — Virginia Reports

<p>This case was heard in Richmond but was decided at Wytheville. It was a creditors bill in the circuit court of the county of Franklin, brought in August, 1868, by James M. Callaway and Thomas Dudley, claiming to be creditors of Marshall P. Price, deceased, the first by a bond executed to him in January, 1858, by James M. W. Leftwich and Marshall P. Price, for $925, payable in twelve months, and the other by a bond for $3,000 executed in August, 1858, to Dudley, by said Leftwich and several other persons, among whom was said Marshall P. Price. The only questions in this cause was in relation to the bond executed to Callaway.</p> <p>The heirs of Marshall P. Price answered the bill, and insisted that said Price was the surety in said bond; and that the estate of said Price had been released from any liability on said bond by the action of said Callaway. That said Callaway had received from said Leftwich his three negotiable notes, satisfactorily endorsed, for the amount of said bond, in satisfaction thereof. These notes were given payable in three, six and nine months • and if not given in satisfaction of the bond, the said Price’s estate was released by Callaway’s thus giving time to the principal debtor.</p> <p>It appears that Price had died before the bond fell due, and Leftwieh qualified as his administrator. That at the ■ urgent request of Leftwieh, Callaway, who had brought a suit upon the bond against him, consented to dismiss the suit, and accept the three negotiable notes of Leftwieh, with endorsers, payable in three, six and nine months, for the amount of the bond. And this arrangement was carried out, the notes were delivered and the suit dismissed. The testimony is conflicting as to whether these notes were taken in satisfaction of the bond, or as a collateral security.</p> <p>In the progress of the cause a commissioner was directed to take, among others, an account of the debts of Price, and he reported as one of the debts due this debt of Callaway’s; and there was an exception to the report on this occount. And the cause coming on to be heard on the 18th of October, 1873, this exception, as well as others, was sustained, and the accounts were recommitted to the commissioner.</p> <p>After this decree had been made, Callaway died, and his administrator applied to a judge of this court for an appeal; which was allowed. The facts as viewed by this court will be seen in the opinion of Staples, J.</p>

<p>By deed dated the 16th of February, 186 í, T sold and conveyed to ■ R a tract of land in Patrick county; but the deed was not recorded in that county until 1874, though R paid the taxes on the land from 1866 inclusive. This land, standing on the land-books of the county in the name of T, was returned as delinquent for the tax of 1865 ; and in 1873 was sold as delinquent land, and purchased by G, to whom the clerk afterwards conveyed it. In ejectment bjr G against R to recover the land— Held : Under the statute, Code of 1873, ch. 38, §26, a pur- ' chaser at a sale of land delinquent for taxes only acquires such estate as was vested in the person assessed with the taxes at ' the commencement of the year for which the said taxes were ' assessed; and as T had in 1864 sold and conveyed the land to R, T had no estate in the land in January, 1865, and G took no title to tlie land under his purchase and the deed to him.</p>

<p>This was a suit in equity in the circuit court of Smytlie county brought by Rufus M. Williams against John C. Calhoun, to subject the land of Calhoun to satisfy a judgment for $115, with interest from the 16th of November, 1874, and costs $7.20, which had been rendered in said court on the 3d of October, 1875. The only defence set up by Calhoun, was that he had by a deed dated the 6th> of March, 1875, set apart his land, valued by him at $1,650, and certain personal property valued at $30, as his homestead exemption; and the only question in the ease was, as to his right to a homestead exemption. The facts seem to be as follows:</p> <p>John C. Calhoun was unmarried. By deed dated the 17th of February, 1858, his father, Mark S. Calhoun, conveyed to him a tract of one hundred acres of land on the consideration of the support and maintenance of said Mark S. Calhoun and Elizabeth, his wife, during their natural lives; and further that he should pay to his sister Sarah Jane, $125 on the 6th of April, 1861, and the sum in April, 1862, and support her during her single life; and he seems to have purchased a small tract of ten acres on which his house was built. His father and mother removed to his house and lived with him until their death. The father had been dead about ten years, the mother died in March, 1876. John C. Calhoun lived in his own house, and kept house, but he had no person living with him, except persons employed by him to work on his farm.</p> <p>The cause came on to be heard on the 3d of September, 1876, when the court held that Calhoun was not entitled to a homestead, and made a decree that the land should be rented out by a commissioner named, for the-payment of the judgment and costs of this suit. And thereupon Calhoun applied to a judge of this court for an appeal; which was allowed.</p>

This was an action of ejectment in the circuit court of Floyd county, brought in December, 1873, by John Boothe Saunders against Walter C. Turpin, to recover a tract of land lying in that county.

In July, 1870, Jacob Leffell, as executor of John Leffell, deceased, sued out a writ of fieri facias against Jonah. McCartney, which was placed in the hands of Eobert E. Doss, deputy for Oscar E. Huffman, sheriff of Craig county, Virginia, for collection.

<p>This is a suit in equity in the circuit court of the county of Washington, brought in April, 1878, by Daniel Trigg, trustee of Wm. King Heiskell, against The Holston Salt and Plaster Company, George W. Palmer, Wm. A. Stuart, Thomas L. Preston and Heiskell’s adm’or. The object of the suit was to recover five-elevenths of the stock of said company, which the plaintiff insisted Heiskell had not sold and conveyed to Preston in certain deeds which he sets out. It appears that Heiskell owned certain interests in King’s salt works, and as a part of them, the interests of Duncan R. Claiborne, James Claiborne and John Claiborne. That by deed dated the 30th of November, 1858, Heiskell sold and conveyed to Thomas L. Preston, all bis right, title and interest, as well at law as in equity, in and to the King’s salt works estate, and all the appendages and appurtenances thereto belonging and used therewith, and embracing the following interest in the King’s salt works estate. He then sets out each interest and from whom derived, and stating the amount of each interest, including that derived from the Claibornes, stating it to be each one two hundred and seventieth. The proportionate part of King’s estate hereby conveyed, to be paid for by the saaf^ Prest°a at the rate of $400,000 for the entire King’s salt works estate; $10,500 on delivery of the deed, the to be paid in five years, with interest at six pet cent., payable annually, except upon those portions which are either encumbered or in litigation. When the encumbrances are removed, or the title decided in favor of Heiswell, then, stating how the payment of the $5,000 are to be made.</p> <p>Preston by deed dated July 7th, 1859, conveyed all his property, including his interest in the King’s salt works estate, to Robert Gibbony, in trust for the payment of Preston’s debts; and Gibbony having paid the debts of Preston without selling his interest in the King’s salt works estate, by a deed bearing date the 14th of July, 1862, in which Gibbony, Preston and Heiskell united, Gibbony released to Preston said interest, and Preston and Heiskell reciting that they desire to annul the deed aforesaid by Heiskell to Prestou, it was agreed that the said deed is hereby annulled, and that this deed is the only and whole contract between them touching the sale and purchase of interest in the King’s salt works. Preston then releases to Heiskell the interest which Heiskell had derived from Wm. L. Hunter, being one-twenty-fourth ; and Heiskell bargains and sells, with general warranty, to said Preston in consideration of the payment of $10,500 (besides certain sums Preston and Gibbony had previously paid him), the interest in the King’s salt works purchased by him, from—naming all the persons mentioned in the deed of November, 1858, except that derived from Hunter—'and describing the interests in the same manner as in said deed, the interest derived from the Claibornes being stated as one two hundred and seventyeth each. In October, 1862, Preston and wife conveyed to Wm. A. Stuart and George W. Palmer, his entire interest in the King’s salt works estate.</p> <p>The-difficulty of managing the King’s salt works estate, with so many divided interests, induced the parties interested to obtain an act of incorporation under the name of the Holston Salt and Plaster Company, and estimating the value of the property at $450,000, each owner of an interest was to have stock in the company in proportion to the amount of his interest upon that valuation. And by deed of the 18th of August, 1875, Trigg, as trustee of Heiskell, in consideration of $18,750 of the stock of the company, conveyed to the company all the interest he had in the King’s salt works. And the deed provided ' that the amount, of stock to be received in payment, should be increased or diminished as the interest might be found greater on smaller. The plaintiff claimed in this suit that the interests of the Claibornes in the property which they had sold to Heiskell, instead of being only one two hundred seventieths each, or six five hundred and fortieths in the whole, was in the whole eleven five hundred and fortieths ; that Heiskell had sold to Preston but six five hundred and fortieths, and the other five five hundred and fortieths was retained by Heiskell, and passed under his deed to the plaintiff, and under the plaintiff’s deed to the company. And the prayer of the bill was that the company should be required to issue to the plaintiff stock for this additional interest, and for an account of rents and profits.</p> <p>The cause came on to be heard on the 24th of May, 1878, upon the bill taken for confessed as to all the defendants, (except Stuart and Palmer, who appeared, and leave was granted them to file their answer by July rules,) and the court held that by their deeds the Claibornes conveyed to Heiskell all their interests in the King’s salt-works, being eleven five hundred fortieths of the whole estate; and that Heiskell, by his deeds of 1858 and 1862, onty conveyed to Preston six five hundred and fortieths of said King’s estate, part only of said Claibornes’ iuter- and that the balance thereof being five five hundred fortieths or 1.108, did not pass by said deeds; but that Heiskell conveyed the same to the plaintiff by his trust deed 1869. And without deciding whether the title to said interest of 1.108, is still in the plaintiff, or passed by his deed to the Holston Salt and Plaster Company, the court referred it to a commissioner to report the annual rental value of said 1.108 interest in the said King’s estate, with its interest from the end of each rental year since the sale by Heiskell to Preston; who is responsible for the rents; and how many shares of stock in the said Company should be issued for said 1.108 interest, if the court should be of ■opinion that stock should be issued therefor; and any other matter, &c.</p> <p>In December, 1878, the commissioner returned his report, to which Stuart and Palmer filed several exceptions; but as this court did not consider the report it is not ne■cessary to state them.</p> <p>At the January term, 1879, Stuart and Palmer answered the bill. They insisted that the whole interest of Heiskell derived from the Claibornes passed by his deed to Preston, and by Preston’s deed to the defendants. They insist that the plaintiff has no relief against any one on the facts of the case; but if he has any relief at all it is against Preston for compensation.</p> <p>At the same term the court gave leave to Preston to file his answer in the cause, and to N. H. Massie to file his petition to be made a party defendant, and the plaintiff ■objected to the filing of both answers and also to the petition.</p> <p>Preston, in his answer, insisted that Heiskell had sold :aud conveyed to him whatever he purchased from the Clairbornes. He admits that the interest of Heiskell in ¡the said King’s estate was, as plaintiff claims, 11.540; but he denies that in his contract with Heiskell he had in view, when he purchased, any specific or defined fractional interest, and purchased only that interest. He purchased Heiskell the entire interest which he had purchased from ^ the Claibornes, and not any particular portion of it. And he claims that plaintiff cannot have any claim Stuart and Palmer by reason of anything set forth in his bill. The only demand he could have is against the defendant ; and the liability of Stuart and Palmer is to him.</p> <p>He further says that if he should be held to account to the plaintiff for any unpaid purchase money on these Claiborne interests by reason of the same being greater than was supposed, then Heiskell’s trustee must account to him for encumbrances paid by him on the interests in the. King estate sold and conveyed by Heiskell to him.</p> <p>And he sets out several encumbrances which he alleges he had paid, and which, by their contract, Heiskell was bound to pay. And he concludes by saying he had assigned to N". H. Massie, for valuable consideration, his entire claim against Stuart and Palmer by reason of his deed to them of October 1st, 1862.</p> <p>Massie’s petition alleges that Preston, in March, 1878, assigned to him, for value, his claim against Stuart and Palmer, and he insists that what is due from Stuart and Palmer is due to him, and not to the plaintiff.</p> <p>At the same term of the court the cause was, by consent, brought on to be heard upon the petitions to file the said answers and petition, and also on the merits, when the court allowed Stuart and Palmer to file their answer; and refused to allow Preston to file his as an answer, but gave him leave to file it as a petition to rehear the former decree. And then upon the merits held that, by the deed of 30th November, 1858, Heiskell sold and Preston bought only 3.270 of the Claiborne interests; and by the terms of the deed only this proportionate part of King’s salt works was conveyed and contracted to be paid for; and by the ^eet^ between Gibbony, Preston and Heiskell, the same 3.270 was conveyed to Preston, and by him conveyed to and Palmer; that the additional 1.108 of the Clai^orne interests purchased by Heiskell was his property, and passed to his trustee, Trigg, as tenant in common witb the other shareholders in said King’s salt works; and this interest not having been sold to Stuart and Palmer, is a subject in which neither Preston nor his assignee, Massie, has any interest; and that being the sole subject of litigation here, the prayer of the petition of Massie is denied, and the motion of Preston to open and reverse the former decree in the cause is overruled. And it was decreed that the Holston Salt and Plaster company should issue a certificate of Stock to Trigg, trustee of Heiskell, for 1.108 of the $450,000, at which King’s salt works was valued by said corporation. And the commissioner was directed to report, forthwith, the amount of the dividends on the said 1.108 interest received in five yéars before the institution of this suit by Stuart and Palmer, who, it was admitted, had received the same. And the commissioner having reported the amount of said dividend and interest thereon, the court, on the 18th of January, 1879, decreed that the plaintiff should recover from Stuart and Palmer the sum of $1,424.90, with interest on $1,176.90 from January 1st, 1879; and that the plaintiff was entitled to receive all dividends which may be declared upon said interest of 1.108 from and after the 1st of January, 1878. And Preston and Massie thereupon applied to a judge of this court for an appeal; which was allowed.</p>

This was a suit in equity in the circuit court of Carroll county, brought in January, 1874, by Thomas B. Henley against F. L. Hale and seven others, who, with A. V. Brown, deceased, constituted, as the bill stated, the Meigs County Tennessee and Virginia Mining Company, the unknown heirs of said A. V. Brown, and S. S. Clayton and J. E. Tyson. Hale lived in the county of Carroll, and all the other members of the company were residents of the state of Tennessee.

<p>Daniel Trigg, of Washington county, died in February, 1853, and John A. Campbell qualified as his administrator. In March, 1855, Campbell filed his bill, in which he stated that he had encountered great difficulties in his administration. That at the time he qualified as admin- ■ istrator, he did not doubt the sufficiency of the estate to pay all its debts; but had changed that opinion in the previous November. He makes a number of the creditors of Daniel Trigg, and among them Wyndham Robertson and James Galt, parties defendants, and asks that he may administer the estate under the direction of the court. He afterwards filed an amended bill, making the widow and heirs of Daniel Trigg parties defendants.</p> <p>In May, 1855, there was a decree for an account of debts, &c.; and in April, 1856 there was a decree for the sale of the real estate of Trigg.</p> <p>Prior to the 19th of September, 1856, Campbell, who had been appointed a commissioner to sell the land, and the commissioner to take the accounts, had made their reports. On that day the court made a decree in which, after reciting that the cause not then being in a condition which would authorize the court to direct a distribution of the assets of Trigg’s estate, ordered that John A. Campbell, the commissioner, do loan out any money of said estate then in his hands, or which might come to his hands,, taking bond and good security therefor, payable to himself as commissioner; and that he give the undisputed creditors of said Trigg, or such of them as may desire it, the preference of borrowing the funds. And Wyndham Robertson being a creditor in his own right as well as representing the estate of Francis Smith, deceased, Campbell in July, 1862, lent to him $5,917.13.</p> <p>No further proceedings in the cause seems to have beeu taken until September, 1871, when Robertson and Galt filed their answer, and also their cross-bill, setting up a ■claim against the estate of Daniel Trigg, on the ground that he, with themselves and three other persons, had been 'the.sureties of Lilburn H. Trigg, as collector at the port 0f the United States at Richmond ; that in 1853 Lilburn> H. Trigg fell in arrear as collector to the amount of $24,-that he was then, aud continued until his death' to be insolvent; that two of his sureties were also insolvent; that plaintiffs, as sureties of said Trigg, had paid of his deficiency $14,791.48; that the other solvent surety had settled with them for his one-fourth of the deficiency; and' they claimed that the estate of Daniel Trigg was liable to-them for his fourth, amounting to $3,697.87, as of April 7th, 1853, and that they were entitled to priority over the-general creditors, on the ground that they were entitled to-be subrogated to the right of the United States.</p> <p>The accounts were again referred to the commissioner,, who made his report; to which there were exceptions by Robertson and Galt, and by Findlay and others. The-only question in this case related to the claims of Robertson- and Galt; and the facts as to these are stated in the opinion-of Judge Burhs.</p> <p>The cause came on to be heard on the 23d of October, _ 1875, and again on the 17th of January, 1876. By the-first decree the court held that the single bill executed by Robertson to Campbell in 1862 should be, to the amount decreed in favor of Robertson, settled as of its full value, and for any balance of said debt it should be scaled as of its date. By the second decree it was held that Robertson and Galt were only entitled as against Daniel Trigg’s estate to one-sixth of the amount they had paid; but for this they were entitled to be substituted to the rights of the United States, and to have priority over the other creditors; and there was a decree in their favor for this sum, with interest from the 25th of April, 1853, until paid. And thereupon Robertson applied to a judge of this court for an appeal; which was allowed.</p>

In April, 1875, Mrs. Ann Tilson instituted her suit in ■equity in the circuit court of Wythe county, against Rufus Brown, as surviving administrator of Eli Davis, Elizabeth G. Gibboney, executrix of Robert Gibboney, deceased, John G. and Jos. M. Crockett, administrators of Allen T. Crockett, deceased, and John C. Graham.

<p>1. In an action of ejectment, brought against the person in possession, the landlord of such person may come in and be allowed to defend the action under §5, ch. 131, Code of 1S73, whether the actual relation of lessor and lessee exists between them or not; and this will be permitted even where the plaintiff and defendant in possession have submitted the matters between them to arbitration, an award made in favor of the plaintiff, and a rule awarded against the defendant in possession to show cause why the award should not be entered as the judgment of the court against him.</p> <p>2. In general, the law will imply a tenancy whenever there is an ownership of land on the one hand and an occupation by possession on the other.</p>

<p>In an action of debt by C against H and I, the surviving obligors in the bond sued on, the defendants plead set off, and lile a list of bonds delivered by H to C, which the plea states C received and undertook to collect and apply to the payment of the bond, and that C had collected the debts—Held : That H was not a competent witness, at the time of the trial in April, 1876, to prove what passed between himself and C in relation to said set offs. And the law is the same in an action on the same bond against the administrator of the deceased obligor.</p>

<p>Upon a bill filed by a judgment creditor to subject the land of his debtor to satisfy his debt, the court, in order to ascertain whether the rents of the land will pay the debt in five years, should generally direct the commissioner to offer it first for one year, and if that will not pay the debt, then for two, and so on, if necessary, up to five years, closing the contract whenever the rents will pay the debt. The terms of payment of the rent to be fixed by the court, looking to the kind of property and the usage of the country. If it will not rent for enough in five years, the commissioner should report the fact to the court.</p>

<p>On the 5th of May, 1874, Frank S. Grubb sold to George W. Y/ysor, Jr., a tract of land for $3,199, payable jn three equal annual instalments. For the first instalment Wysor, Jr., executed a negotiable note, with his George W. Wysor, Sr., as surety, payable twelve months after date, and for the other two instalments exeJ cuted his own bonds, payable at two and three years; the title to the whole land was retained by the vendor to secure the purchase money. The note for the first payment was assigned by the payee, Grubb, before maturity, to E. McCormick, and by him endorsed to Hurst, Purnell & Co., and, after protest at maturity, paid to the holder by Wysor, Sr., the surety. Wysor, Sr., then filed his bill in the circuit court of Carroll county against Wysor, Jr., and Grubb, claiming that having paid said note for the first instalment of the purchase money of said land as surety for his son, Wysor, Jr., who has no other property than his interest in said land, he is entitled to be subrogated to the lien rights of Grubb, the vendor, and to be paid out of the proceeds of the sale of said land before Grubb should be paid the balance of the purchase money, and asking that a sale of said hpd should be directed for this purpose. A decree to aiffect this having been rendered by the circuit court of Carroll county, Grubb appealed therefrom to the court of appeals.</p>

<p>The mere possession of a bond is not such an evidence of property as will justify a payment to the holder, without authority, express or implied, from the owner to collect the same.</p>

<p>1. To obtain a new trial on the ground of newly discovered testimony, it must be shown, 1st. That the testimony has been discovered since the former trial; 2d. That the new testimony could not have been obtained with reasonable diligence on the former trial; 3d. That it is material to the issue; 4th. It must ■ go to the merits of the case, and not to impeach the character of a former witness; 5th. It must not be merely cumulative.</p> <p>2. In determining whether or not evidence is cumulative, the courts must see if the kind and character of the facts offered, and those adduced on the former trial are the same, and not whether they tend to produce the same effect. It is their resemblance that makes them cumulative. The facts may tend to prove the same proposition, and yet be so dissimilar in kind as to afford no pretence for saying they are cumulative.</p>

<p>1. The V. E. E. Co. gave notice to S that it would move the court f01. a judgment against him for the sum of $300, with interest on $150, part thereof, from the 1st of October, 1871, and on $150, the residue thereof, from the 3d of March, 1873, till paid, it being for the first and second quotas of 30 per cent, on five shares of stock of said company called for by the board of directors of said company—Held : That the notice sufficiently alleges and describes a contract of subscription by S.</p> <p>2. S denies that he was a stockholder in the company; and the controversy involved the validity of his subscription for the whole of said five shares, which was $500—Held : That though the judgment against S for the $300 and interest was less than $500, yet the subject in controversy was the validity of the subscription for the five shares, and the court of appeals has jurisdiction to hear the case upon appeal.</p> <p>3. To make a subscription to the stock of a contemplated railroad company, it is not necessary that the subscription shall be made upon the books of subscription opened by the commissioners named in the charter; and a subscription paper, by which the signers bind themselves to pay for the shares of stock in said company opposite to their names, is competent evidence against a subscriber of the paper; the plaintiff Co. stating that it intended to show that the amount so subscribed was duly entered on the stock lists and stock ledger of the company.</p> <p>4. A stock ledger and a shareholders’ list, kept by the company, and a memorandum made by an agent appointed by the company to collect quotas due from subscribers, including that of S, with the figure 5 opposite thereto, showing the number of names subscribed, which stock ledger and shareholders’ list were shown to have been subsequently compiled therefrom and from many original subscription lists similar to that mentioned in §3, are competent evidence for the plaintiff Co.; and it is not competent for S then to propose to prove that before the said ledger list and memoranda were in existence, S had, by withdrawal of his proposal to subscribe, accepted and acted upon by the plaintiff, ceased to occupy any relation of contract or subscription to the plaintiff.</p> <p>•5. S, to prove that he never became a legal subscriber to the capital stock of the plaintiff Co.; that his proposal to become a subscriber was revoked by him with the consent of those to whom it was made previous to the organization of the plaintiff Co. in June, 1871, and that the company, upon its organization, refused to receive it as a subscription, or treat S as a subscriber to its stock—offered, in connection with oral evidence to be introduced, the records of the company in relation to its organization ; in which records, in two statements oi lists of subscribers, the name of S does not appear—Held : The said records are competent evidence.</p> <p>6. A subscription to the stock of a railroad company may be valid, though the subscription is not made on the books of the commissioners named in the charter, though two per cent, on each share of stock is not paid at the time of subscription, and though the subscription was made before the railroad company was organized, and before the commissioners named in the charter of the company liad opened books of subscription to the capital stock of the company.</p> <p>7. The subscription of S, upon the paper referred to in §3, did not of itself constitute a contract of subscription by S to the stock of the plaintiff Co. for five shares of said stock at 6100 per share : whether a contract or not depended on its acceptance, and the conduct of the parties.</p> <p>5. Though a contract of subscription could be released only by the stockholders of the Co. or by the action of the board of directors duly authorized to do so by the stockholders, yet such release may be proved, not only by the records of the company, but also by other evidence showing that such subscription was in fact not regarded by the Co. as binding upon it, and that the subscriber was not regarded by himself or by the Co. as a stockholder thereof.</p> <p>9. Though S may have executed and delivered the subscription paper referred to in § 3, and it came into the custody of the Co., and has been entered on its stock lists and ledger, and though there may be no evidence from the records of said company, or of any order or resolution of said company releasing said subscription, yet it may be shown by other evidence that S was not a stockholder of the company.</p>

<p>Though a judgment upon a note rendered by a court not having jurisdiction of the case is void, the note is still a valid security. i.</p> <p>An amended bill, which is not repugnant to the original bill, presenting no new ease, and is only ancillary to the original bill in presenting the case made by it more fully and accurately with additional averments, to the end that there may be a decision on the merits, and complete justice done between the parties, is not demurrable as inconsistent with the original bill. 2.</p> <p>3. The act, ch.76, §§12, 13, Code of 1873,'does not prohibit the sale of church property for the payment of debts incurred in the purchase thereof or building thereon, or to reimburse a party who has advanced money, or made himself liable for any such debts at the instance of the trustees of the church, and the discipline of the church authorizing parties so advancing money on account of such property to raise said sums of money by mortgage or sale, a court of equity will, at the suit of a party so liable or so advancing money, subject the lot and buildings to sale for the purpose of satisfying such claim.</p>

This was a suit in equity in the circuit court of Shenandoah county, but afterwards transferred to the circuit court of Augusta county, brought in September, 1871, by George G. Lobdell against Joseph Marston and Henry S. McComb, seting up a partnership, and seeking a settlement of the partnership transactions between the plaintiff and the defendants. McComb answered denying the existence of the partnership.

This case was argued at Wytheville, but decided at Staunton. It was an action of assumpsit, brought in the circuit court of Wythe county by Nancy Suit against Francis Grubb, administrator of Isaiah F. Grubb, deceased, for an alleged breach of promise of marriage, made by the decedent to the plaintiff in his lifetime. No special damages are alleged in the declaration. The defendant demurred to the declaration, and to each count, but the court overruled the demurrer.

This was a suit in equity in the circuit court of land county, brought in August, 1875, by Jacob Ruleman, surviving executor of Christian Ruleman, deceased, subject certain land devised by the said Christian Rule-man to his son Henry, to the payment of a charge of $1,000, put upon the land by the will of the testator. The will was admitted to probate in February, 1854.

In a suit in equity in the circuit court of Rockingham, in which certain judgment creditors of Samuel S. Coffman, Michael D. Coffman and Jason ST. Bruffy, individually and as partners, were plaintiffs, and said Coffmans and Bruffy were defendants, a decree was made directing a commissioner to take an account of the debts of the said Coffmans, which were liens on a tract of land conveyed by them by two deeds in trust, the first to secure to James W. Morrison a debt of…

<p>The case is fully staled in the opinion of the court delivered by Christian, J.</p>

<p>On a bill to have the assets of the Insurance Co. of the Valley of Va. administered, in the progress of the canse the debts of the Co. are paid, and there are assets consisting of debts of stockholders not yet collected, to be divided among the stockholders. Some of these stockholders had paid in full for their stock before the war; others had paid in part before the war, and the balance in Confederate notes, and these two classes had received their certificates of stock; others, at the end of the war, had paid nothing on their stock. In ascertaining the amount of the fund to be received by each stockholder—Held :</p> <p>1. In the statement of account between the stockholder and the Co., the payments in Confederate money must be taken as valid payments without abatement.</p> <p>2. But in the account between the stockholders to ascertain what dividend each one shall be entitled to in the distribution of the assets, the payments of stock in Confederate money, whether in whole or in part, since the 1st of January, 1862, should be scaled as of the date of pay- . ment; and each stockholder is entitled to share in proportion to his input, ascertained as hereinbefore stated.</p> <p>3. Preparatory to a division, accounts should be taken upon the foregoing principles; and the stockholders in arrear should not be required to pay until the accounts are taken and the dividend of each stockholder ascertained.</p> <p>4. Each stockholder in arrear should then be credited with his dividend, and be ordered to payinto the hands of the receiver the balance due on his stock, to be divided among the other stockholders in the proportion of their respective dividends.</p> <p>5. The court of equity, having all the parties before it, should enforce the payment of the moneys due from the several stockholders, and should not direct actions a"- law.</p>

<p>This was an action of debt in the circuit court of Rockingham county, brought against Joseph A. Hammen, sheriff, and his sureties in his official bond, by Israel Min-nick, to recover the amount of an execution which had gone into the hands of one of the deputies of Hammen, who had levied it on the property of the debtor, but had not paid over the money to the plaintiff.</p> <p>There was a judgment in favor of the plaintiff; and the defendants thereupon obtained a writ of error and supersedeas from this court. The case is stated by Judge Anderson in his opinion.</p>

<p>A having recovered a judgment against 27, M and J, upon a bond on which they were sureties of C, deceased, tiles his bill against them to subject the lands of 27 to pay the judgment; and he makes G, who had a deed of trust on the land, a party defendant—Held :</p> <p>1. G cannot question the validity of the judgment against 27, except upon grounds that would avoid it between A and 27, or on the ground that there was fraud and collusion between A and 27 in procuring the judgment.</p> <p>2. It is error to decree against 27’s land alone for the whole amount of the judgment, until an enquiry had been made as to whether there were lands held by H and J, which might be subjected to satisfy their portion of the judgment.</p> <p>3. The rule stated in Horton v. Bond, 2S Gratt. 815, should be followed, viz : The court should order a sale of the lands of each of the sureties, or so much thereof as may be necessary to pay his proportionate part of the said judgment; and if either should make default in the payment of his part, and his lands when sold should prove insufficient to pay such part, the land of the others should be subjected proportionately for the part unpaid ; and so on proportionately, upon the further default of any party, until the lands of all have been sold, if the sale of all be necessary for the complete satisfaction of the judgment.</p>

This was a suit in equity in the circuit court of Rockingham county, brought by some of the legatees of John Cook, deceased, against his administrators and their sureties and others for a settlement of the accounts of the administrators, and a distribution of the estate.

This was an appeal by Mary Miller and her children from a decree pronounced by the circuit court of Augusta county, on the 10th day of July, 1877, in a suit which had been instituted by the late John JB. Baldwin, as trustee in a deed of trust executed in 1857, by John Miller and his wife Mary, to secure his creditors, asking for a construcof said deed, aud for a settlement of his account as trustee.

This was a motion by the appellee, Henry E. Smilh, to dismiss the writ of error which had been allowed to the appellant, John T. Campbell, on the ground that the matter in controversy was less than $500, and therefore that this court did not have jurisdiction of the case. The facts are stated by Judge JBurhs in his opinion.

<p>I. On a bill by G against B to set aside a contract and conveyance 1879. by which G conveyed to B certain real estate in consideration ® of twenty shares of B Springs Co.’s stock, on the ground of the fraudulent or false misrepresentation of the value of the stock, which at the time was worthless—Held :</p> <p>1. That a false representation of a material fact constituting an inducement to the contract, on which the purchaser had the right to rely, is a ground for the rescisión of the contract by a court of equity, althoug the party making the representation was ignorant as to whether it was true or false; and that the real inquiry is not whether the vendor knew the representation to be false, but whether the purchaser believed it to be true, and was misled by it in entering into the contract.</p> <p>2. Though the representation must, as a general rule, be of a fact, as distinguished from a mere matter of opinion, which ordinarily is not presumed to deceive or mislead, yet a matter of opinion may amount to an affirmation, and be the inducement to a contract, especially when the parties are not dealing upon equal terms, and one of them has, or is presumed to have, means of information not equally open to the other.</p> <p>3. If the purchaser does not rely upon the representations of the seller, but seeks information from other sources, the law will often impute to him all the knowledge necessary to a proper understanding of the facts. But if the purchaser has not equal means of information with the seller—if it is a case in which he has a right to rely upon the representation—the evidence to show that he did not rely upon it, but upon information obtained elsewhere, must be of the clearest and most satisfactory character. In such case there ought to be no room for inference or implication.</p> <p>4. In this case held, that whether the representations were fraudulent, or merely false, whether they were of facts or opinion, they were such as the seller had a right to rely upon; and it is a case for the rescisión of the contract and the reconveyance of the real estate.</p>

<p>This was a creditor’s suit in the circuit court of Nelson <county, brought in August, 1874, by Samuel M. Garland, 4o subject the real estate of Martha L. Pamplin, the wife ■of John H. Pamplin, to the payment of a bond for $884, •executed by said Martha L. Pamplin to the plaintiff in 1856, and payable on the 1st of January, 1857. The bond purports to be given in part of the purchase money of land and buildings thereon (mills, &c.) at the Gulf Ford, purchased by Mrs. Pamplin of James McDonald and others. It appears that Mrs. Pamplin had sold to Me-Donald this land, retaining the title; that McDonald made extensive improvements thereon, building a mill and other houses; and that she afterwards purchased it back at an enhanced price; and McDonald being indebted to Garland, this bond was executed to Garland by the direction of McDonald. The plaintiff insisted that he was entitled to a vendor’s lien on this land, in preference to any other creditor of Mrs. Pamplin.</p> <p>The bill then sets out a deed made on the 6th of September, 1845, between John H. Pamplin, of the first part, Daniel H. Cheatwood and Jane London, of the second part, both of whom the bill states are dead, and Martha L. Pamplin, wife of John H. Pamplin, of the third part, by which said John H. Pamplin conveys to the parties of the second part all his interest in the estate, real and personal, of his said wife, upon trust for the separate use of the wife; and prays that the land purchased of McDonald may be subjected to the payment of his debt, and. for an account of his debt, and of all real estate liable to its payment, and all liens upon it, &c.</p> <p>In October, 1875, Willis A. Brockman filed his petition in the cause asking to be made a party, and setting out that he is a creditor of Mrs. Pamplin by a bond executed in November, 1863, by a certain B. F. Gatlin, John H. Pamplin and Martha L. Pamplin. He admits the debt is subject to be scaled; but is due, principal and interest.</p> <p>It seems to be impossible to understand the questions involved in the cause and considered by this court, without giving the deed of John II. Pamplin to Cheatwood and Jane London. That deed, which was duly recorded, proceeds as follows:</p> <p>This indenture, made this 6th day of September, in the ' year 1845, between John H. Pamplin of the first part, Daniel A. Cheatwood and Jane London of the second Par^ anc^ .Martha L. Pamplin, wife of the said John H. Pamplin, of the third part, witnesseth that, whereas, there at the date of these presents in the hands of the said Daniel A. Cheatwood, as administrator of Lavender Lon- ; don, dec’d, a portion of his estate which the said John EL pampi¡n has n0t; as the husband of the said Martha L. Pamplin, reduced to his possession, she being one of the heirs at law, and distributee of the said Lavender London, dec’d, and, whereas there is also at the date hereof, certain slaves and other property in the hands of the said Jane London, as widow of the said Lavender London, held in right of dower, and of which the said Martha L. Pamplin will be entitled to her distributive share at the death of her mother, and which the said John H. Pamplin has not, as husband, reduced to his possession; and whereas also the said Martha L. Pamplin is entitled to certain rights and property in the estate of Austin Wright, dec’d, of whose will the said Lavender London was the executor, and which interest, right and property, the said John EL Pamplin has not as husband of the said Martha reduced to his possession; and whereas also the said Martha is entitled in her own demesne as of fee to certain lands situated and lying in the county of Nelson, a portion' thereof descended to her from her father, the said Lavender London, dec’d, and which has never yet been divided between herself and the widow and the other heirs at law, and into which the said John H. Pamplin, as husband, has never entered; and she is also entitled to certain lands in said county devised to her from her uncle, Austin Wright, dec’d, and into which the said John H. Pamplin has never entered; and the said John H. Pamplin being disposed, an act of justice to his said wife, not to reduce her said property and estate to his possession and divest her thereof, and to leave the same untouched and unaffected by his marital rights, or by any exercise on his part of such marirights by reducing it to his possession or of appropriating it in any manner whatsoever, so that she may at any aftertime receive, control, enjoy and dispose of the same for her own separate use and benefit, separate and from him as fully as if no marriage had ever been had between them, leaving her the power and right to dispose of the same as fully as if she were an unmarried woman. Now to effectuate these ends, and in consideration thereof, and for the further consideration of one dollar in hand paid to him by the said Daniel A. Cheatwood, who is the brother-in-law of the said Martha, and the said Jane London, who is her mother, he, the said John H. Pamplin, doth by these presents covenant and agree with the said Daniel A. Cheatwood and Jane London, and with each of them, that he will not at any aftertime after the date of these presents, take any step or make any attempt in law or equity, or in any other manner or form whatsoever to reduce to his possession, or to sell, transfer, convey or assign or in any other manner interfere with any of the rights, interests, property and subject hereinbefore referred to as belonging to the said Martha, and that he will abandon, as he does hereby abandon, all manner of right to or control over said property and subject; that he will abandon, as he does hereby abandon forever, all manner of marital right which he could exercise over the same, leaving the same for the use, benefit and support of the said Martha, as fully as if she had never married, and hereby agreeing that the said property, right, interest and subject shall stand forever discharged from any claim on his part, as husband, leaving the same in the hands of the said Daniel A. Cheatwood and Jane London, in trust for the said Martha L. Pamplin, leaving them to account with the said Martha, therefor, in any manner consistent with the equity in her favor flowing from this indenture, as also leaving them, the said Daniel A. Cheatwood and Jane London, for and in behalf of the said Martha to enter upon the said lands for the use and behoof of the said Martha, untram - meled by any marital right of the said John H. Pamplin, intending that the said Martha shall stand protected by ■ the trustees aforesaid, and by each of them against any and every attempt, act or deed of the said John H. Pamplin, as husband or otherwise, in relation to the said rights and property and estate of the said Martha, hereby and herein enumerated and specified. And the said John ^EL Pamplin, for himself, his heirs, ex’ors and adm’rs, covenants and agrees to and with the said Daniel A. Cheatwood and Jane London, that he will well and truly perform all the stipulations contained in this indenture to be performed on his part, and this indenture is not only not to be construed as an act of ownership over said rights, interest and estate hereinbefore enumerated, but it is to be construed as a covenant and declaration on the part of the said John H. Pamplin, that he never has, nor never will exercise any marital right whatever in relation to said property, subject and estate by reducing it to possession or otherwise interfering with it in any manner or shape whatever, in law or equity, or otherwise.</p> <p>In witness whereof, the said parties have hereunto set their hands and seals the day and year first above written..</p> <p>John H. Pamplin, [Seal.]</p> <p>Daniel A. Cheatwood, [Seal.]</p> <p>Jane London, [Seal.]</p> <p>Mrs. Pamplin filed her answer in the cause. She-insists that a married woman cannot execute a sealed instrument that can bind her; and that as the said writings are only simple contract debts, they are barred by the statute of limitations, and she relies upon the statute;, except so far as the Gulf Ford land itself may be liable by sale to pay Garland what may be due on his bond. She insists that upon the conveyance by John H. Pamplin of his interest in her real estate, it merged in her fee simple interest in said real estate, and she held the same free-from any trust created by said deed, and could only dispose of it in the manner prescribed by the statute, for the conveyance of real estate by married women. And denies that the fee simple in her land, or the issues or profits thereof, are liable in any mode of proceeding for said debts, even if they are binding on her, or any separate estate she might have, and are not bound by the statute of limitations. As to Garland’s debt, she insists she had no power to buy lands; and that no property of hers is liable to pay any balance of said debt, which a sale of said land will not produce. She denies that Brockman’s debt is in any sense her debt, except as security in a sealed instrument for the debt of the principal, and not for her husband. And she denies that she has done any act, or intended to do any, indicating an intention to bind any separate estate she may have. She insists further, that if she holds a separate property under the deed of her husband, by the express terms of the deed there is a trust for her support, and she could not bind said estate so as to deprive herself of a support out of the rents and profits thereof, and she avers that the rents and profits are not sufficient to provide for her the support intended by the deed. She insists that Brockman’s debt was for a loan of Confederate money to B. F. Gatlin, and should be scaled.</p> <p>The cause came on by consent to be beard in vacation on the 20th of January, 1877, when the court made a decree by which certain commissioners named should proceed to sell the Gulf Ford tract of twenty-six and a half acres of land in the bill and proceedings mentioned, for so much cash ás may be necessary to defray the expenses of sale, and the plaintiff Garland’s costs, and on a credit of one, two and three years, with interest from the day of sale for the residue of the price of said land, and take bonds with good security bearing interest as aforesaid, and retain the title, &e.</p> <p>And it was further decreed that one of the commissioners of the court, upon being requested so to do by the plaintiffs, or either of them, do take an account of the value of the real estate, except the Gulf Ford tract aforesaid, mentioned in the deed of the 6t'h of September, 1845, and also of the annual rents, issues and profits of the same; and also enquire, ascertain and report whether John H. Pamplin, the husband of Martha L. Pamplin, is of ability to maintain and support his said wife in a decent and comfortable manner, independent of the said real estate; and if not, how much and what part of the rents and profits of the said real estate are necessary and ought to be appropriated to her support and maintenance. And thereupon Samuel M. Garland applied to a judge of this court for an appeal from said decree, except as to the sale of the twenty-six and a half acres; which was awarded.</p>

This is a sequel to the case of Womack v. Circle, reported in 29 Gratt. 192. The cause came on again to be tried in the circuit court of Botetourt county in April, 1878, when there was a judgment in favor of the plaintiff for $500, and a writ of error to this court. There seems to have been no conflict of the evidence, and it is given by Judge Anderson in his opinion.

<p>C, owning several tracts of land and personal estate, by his will says : 3. Y give to my wife Theresa, during her natural life or widowhood, all my estate, real and personal, except as hereinafter excepted. But if she should marry again, then she is to have the same portion of my estate as if I died intestate. He directs his executors to sell his lauds and personal property; and then says the Home place is for my wife to live on as long as she may remain my widow, and then it is to be sold. He then says : I wish the proceeds of the sales of my real and personal estate, and the debts due me after paying my debts, to be put at interest by my executor, and my wife to receive the interest. But so long as she remains my widow, she is at liberty to receive from my executors or from my estate such part of it as she may choose and to appropriate it as she believes to be just and right. And he then directs that all such part of his estate as she does not thus appropriate, and all the rest of his estate, shall be given and paid over to the Missionary Society of the'Methodist Episcopal Church, incorporated by an act of the legislature of the state of New York, passed April 9, 1839. All so paid to the said Missionary Society shall be paid to the India mission by that society—Held :</p> <p>1. That under the provision that his wife Theresa is to be at liberty to receive from his executors such part of it as she may choose, and appropriate it as she believes to be just and right, all the estate directed to be sold and invested by his executors, passed absolutely to his wife.</p> <p>2. The Home place, which was to be sold after the death or marriage of his wife, did not pass absolutely to the wife, but ¡.the proceeds of the sale thereof passed to the said Missionary Society.</p> <p>3. The testator directing the Home place to be sold by his executors, the bequest to the Missionary Society though a foreign corporation is valid; they talcing the proceeds of the sale.</p> <p>4. The direction that the Missionary Society shall expend it on the Indian mission does not avoid the bequest for uncertainty.</p>

<p>I. Where real estate in the hands of heirs is sought to be subjected to the payment of the decedent ancestor’s debts, and that port-ion of it assigned to one of the heirs before the commencement of the suit has been aliened to a bona fide purchaser, whether absolutely or in trust to pay his debts, and that heir has become insolvent, the rest of the real estate in the hands of those heirs who have not aliened it, is liable, not only for the proportionate share which each heir would at first have borne, but for the whole debts of the decedent, to be contributed by each one in proportion to the value and extent of the land descended to him. See Lewis v. Overbys, 31 G-ratt. 601.</p> <p>II. In March, 1875, the circuit court rendered a decree that the heirs of a decedent, who had not aliened the land of their father, were liable only, each for his or her proportion of the decedent’s debts; fixed the amount to be paid by each of them, and in default of such payment, directed commissioners named to sell so much of the real estate of each, as was necessary to pay his or her proportion of the debts; the sale to be upon a credit of one, two and three years ; the purchase money to be secured by bonds and deed of trust on the land, and the commissioners to report their proceedings to the court at the next term. On a petition filed in March, 1879, by a creditor of the decedent for a rehearing of said decree—Held : The decree of March, 1875, was not a final but an interlocutory decree, and being erroneous should be reheard and reversed.</p> <p>IH. As to when a decree is final and when interlocutory, see the opinion of Staples, J.</p> <p>IV. A decree cannot be in part final, and in part interlocutory, in the same cause, for and against the same parties who remain in court.</p> <p>V. Whenever a particular relief is contemplated, if anything remains to be done by the court to make the relief effectual, the decree is interlocutory. When no further action is required the decree is final.</p> <p>VT. In this case there were four heirs. The land of one of them sold for more than enough to pay his fourth of the ancestor’s debts, and under a subsequent decree of March, 1S76, he received a part of this surplus, and a part of it was still in court, and he was insolvent: A creditor of his filed his petition in the cause to have this surplus applied to pay his debt— Held :</p> <p>1. Upon reversing the decree of March, 1875, that this surplus still in the hands of the court, was liable to pay the debts of the decedent, in preference to the debts of the heir.</p> <p>2. The creditors of the decedent not having objected to the payment of a part of this surplus to the heir at the time the decree was made, and not having filed their petition for a rehearing of t'.ie decree of March, 1875, and March, 1870, until March, 1879, when the heir was insolvent, the other heirs who are able to pay, will be allowed a credit for the afiiount of the said suiplus received by him, upon the deficiency of the other insolvent heirs’ payments of their proportion of the debts.</p>

<p>This was an appeal from a decree of the circuit court of Madison county, made ou the 3d of April, 1874, in two causes pending in said court, brought by John Harrison’s executors and other lien creditors of Jackson & Crisler, and Jackson, Crisler & Co., to subject the property of the partners to the payment of their debts. The only question in this court referred to the dower interest of Mrs. Cordelia Jackson, the widow of Thomas E. Jackson, deceased. The commissioners reported that the dower of the widow could not be laid off in kind, and Commissioner Humphreys reported that the value of the land was $5,000—one-third of which was $1,500—and he estimated the widow’s fee simple value of her dower at $1,206. The plaintiffs excepted to the report for allowing the widow the fee simple value of her dower estate, and insisted that the dower money should be invested under an order of the court, and the interest thereon paid to her annually.</p> <p>When the cause came on to he heard, the court over- . • ’ ruled the exception to the report, and made a decree in of Mrs. Jackson for the said sum of $1,206, to be paj<j ouj; 0f the proceeds of the sale of the land. And the plaintiffs thereupon obtained an appeal to this court,</p>

<p>!• A railroad company, incorporated in another state, which leases a road lying in'this state, and operates it as the owner of the same, is liable to be sued in the courts of Virginia for an injury which occurred on said road operated in this state; and said foreign company has no right to remove the suit to the United States court.</p> <p>II. Whilst the Baltimore & Ohio R. R. Co., as a corporation of the state of Maryland, can have no legal existence outside of that state, yet, as the lessee of a Va. railroad company, exercising all the powers and functions of the latter, it may be subject to all its duties and obligations. So acting, it may be treated as . a Va. corporation quoad the line of railroad under its control in Va., so far, at least, as its liability to the citizens of Va. is concerned.</p> <p>III. When injury or damage happens to a passenger by the breaking down or overturning of a railroad train, or the breaking down of a bridge, wheel or axle, or by any other accident occurring on the road, the presumption prima facie is, that it occurred by the negligence of the railroad company, and the burden of proof is on the company to establish that there has been no negligence whatsoever, and that the damage has been occasioned by inevitable casualty, or by some cause which human care and foresight could not prevent.</p> <p>IV. The law, in tenderness to human life and limbs, holds railroad companies liable for the slightest negligence, and compels them • to repel, by satisfactory proof, every imputation of such negligence ; and therefore, where the death of a passenger on said railroad is caused by the slightest neglect, against which human prudence and foresight could have guarded, the company is liable in damages for such death.</p> <p>V. Railroad companies are held by law to the utmost care, not only in the management of their trains and cars, but also in the structure, repair and care of the track and bridges, and all other arrangements necessary to the safety of passengers.</p> <p>VI. Charles L. Noell’s adm’r brought suit against the Baltimore & Ohio Railroad Company, lessees of the Washington City, Virginia Midland and Great Southern railroad, running from the town of Strasburg, in Shenandoah county, to the town of Harrisonburg, in Rockingham county, to recover damages for the’death of said Noell, which occurred by what is known as the “Narrdw Passage bridge disaster,” in the said county of Shenandoah, Virginia. N was an unmarried young man, whose father was dead, and who lived with and cared for his mother. On the trial, on the motion of the plaintiff, the circuit court instructed the jury as follows :</p> <p>1. If the jury believe from the evidence that such prudence, foresight and skill (as that required of railroad companies as above indicated) were not used by said company in respect to “Narrow Passage bridge,” by the breaking of which Charles L. Noell was killed, they shall find for the plaintiff, and assess the damages for such killing at such sum as they may deem fair and just under all the circumstances of the case, such damages not to exceed ten thousand dollars.</p> <p>2. In ascertaining such damages, the jury should find the sum with reference, first, to the pecuniary loss of Phoebe Ann Noell, the mother of salcocharles L. Noell, by the death of said Charles L. Noell, fixing the same at such sum as would be equal to the probable earnings of the said Charles L. Noell, taking into consideration the age, business capacity, experience, habits, energy and perseverance of the deceased during what would probably have been his lifetime, and the lifetime of said Phoebe Ann Noell, if he had uot been killed. Second. In ascertaining the probability of life, the jury have the right to determine the same with reference to recognized scientific tables relating to the expectation of human life. Third. By adding thereto compensation for the loss of his care, attention and society to his mothér; and Fourth. By adding such sum, as they may deem fair and just, by way of solace and comfort to his said mother, for the sorrow, suffering and mental anguish occasioned by his death—Held : There was no error in either of the instructions.</p> <p>VII. In an action under chap. 145, §§7-9 of the Code of 1873, it is not necessary to ayer in the declaration for whose benefit the suit is prosecuted. Balt, Ohio B. B. Co. v. Wightman’sadm’r, 29 Gratt. 431.</p>

is case was heard at Staunton, but was decided at Richmond. It was a suit in equity brought in the county court of Amherst in June, 1871, but afterwards transferred to the circuit court of the county, by H. M. Greever against William A. Irvine and William C. Mays, to subject a tract of one hundred and thirteen acres of land to satisfy a judgment for $233.34, with interest from the 10th of August, 1866, and $8.78 costs, recovered by said Greever against said Irvine.

This was an application by Robert Milliner’s administrator to the supreme court of appeals, for a rule upon Randolph Harrison, register of the land office, to show cause why a mandamus should not issue commanding him to deliver to the petitioner certain land warrants which had been made out in favor of the heirs of Robert Milliner, deceased, and on file in his office. The register filed his answer to the rule; and the case was submitted to the court.

<p>By deed bearing date the 30th December, 1833, Richard Tavener and wife conveyed to James Tippitt and seven other persons one and a half acres of ground in the county of Loudoun, upon trust that they shall erect and build, or cause to be erected and built thereon, a house or place of worship for the use of the Methodist Episcopal Church in the United States of America, according to the rules and discipline which, from time to time, may be adopted the ministers and preachers of said church, at their general conference in the United States of America; and in further trust and confidence that they shall, at all times forever hereafter, permit such ministers belonging to the said church as shall, from time to time, be duly authorized by the general conference of the Methodist Episcopal Church, or by the annual conference, to preach and expound God’s holy word therein. And the deed then provided for supplying a vacancy in the board of trustees, and their qualifications; and further, that if the trustees, or their successors, were obliged to pay any money on account of said premises, they should be authorized to raise the same by mortgage or sale of the premises.</p> <p>And by deed bearing date the — day of-, 1847, William W. Butts and wife conveyed to J. B. White and five others, and their successors, a parcel of ground in trust that they shall, at all times, permit such ministers belonging to the Methodist Episcopal Church as may be appointed by the annual conference, within the bounds of which the said lot of ground may be included, to enter and occupy, during the time of such appointment, the house situated thereon as a parsonage, with the use of the out-buildings attached. And the deed then provided for the mode of filling a vacancy in the board of trustees.</p> <p>The church built on the land mentioned in the first deed was called Harmony church; and the parsonage mentioned in the second deed was in Hillsboro’, and was also in the county of Loudoun.</p> <p>It appears that the churches for which this property was given divided-—-one part of them going with the Methodist Church South and the other jiart with the Methodist Church—and that the trustees of the part going with the Methodist Church South took possession of the buildings, and excluded the other part.</p> <p>In March, 1871, George Pusey and six others, suing in behalf of themselves and the other members of the con-of the Methodist Episcopal Church entitled, as they claimed, to worship in the Harmony church, brought their suit in equity in the circuit court of Loudoun county aga'nsl Robert Hoskinson and others, trustees of the Harmony church, connected with the Methodist Episcopal Church South, to recover possession of the church property.</p> <p>And at the same time [Charles King and William J. Bain, ministers in charge of the Hillsboro’ circuit by appointment from the Baltimore conference, brought their suit in equity in the same court against James B. White and others, trustees of the church in connection with the Baltimore conference south, to recover the aforesaid parsonage.</p> <p>Both the cases came on to be heard on the 30th of October, 1873, when the court held that the plaintiffs were entitled to the possession of the church and the parsonage, and decreed that the defendants deliver possession thereof to the trustees of the other party. And the defendants in each case thereupon applied to this court for an appeal; which was awarded. The grounds on which the parties respectively rest their claims are stated in the opinion of Judge Burks.</p>

<p>W. L. Cowardin and several others filed their bills in the chancery court of the city of Richmond against the Universal Life Insurance Company, to recover back certain premiums they had paid upon policies issued by said company. The bills charged that the company was a foreign corporation and had failed. And the plaintiffs sued out attachments, which were served on certain real estate in the city of Richmond, owned by the said insurance company.</p> <p>The several bills were consolidated, and the Universal Life Insurance Company demurred to the bills and also answered. It is only necessary to state that they claimed that though the company was incorporated by the laws of ^ew York, they availing themselves of the privileges conferred by the state of Virginia, appointed by written power attorney, a citizen of Virginia resident here—to wit: l, V. Rose—its agent and attornev to accept service of all lawful process against it in this state, and cause an apto be entered in like manner as if it had existed and been served under process in this state, and also made the deposit with the treasurer of Virginia required by law, and in every other respect accepted and complied with the laws of Virginia in that behalf.</p> <p>The facts being agreed that the Universal Life Insurance Company was incorporated under the laws of New York and had their principal place of business in that state, and that it had complied with the statute of Virginia in relation to foreign insurance companies doing business in this state, by making the deposit with the treasurer of the commonwealth, and appointing an agent with the powers prescribed by the statute, the cause came on to be heard on the 2d of May, 1878, upon the demurer to the bill, and the motion of the defendant to abate the attachments, when the court dissolved the demurrer; and ordered that all the attachments be abated. And thereupon Cowardin and two of the other plaintiffs applied to a judge of this court for an appeal; which was awarded.</p>

<p>1. The English practice of—as a matter of course—opening the biddings of a sale made by the master under a decree of the court, upon the offer of a reasonable advance bid, has not been adopted in Virginia.</p> <p>2. Whether the court will reopen the bids after such a sale, is a question addressed to the sound discretion of the court, subject to the review of the appellate tribunal; and the propriety of its exercise depends upon the circumstances of each case, and can only be exercised when it can be done with a due regard to the rights and interests of all concerned—the purchaser as well as all others.</p> <p>3. When a sale has been fairly made, and for a fair price, it should never be set aside when there is good reason to believe that the upset price has been offered to gratify ill will towards ithe purchaser.</p> <p>4. Where two or more persons desire to acquire different parts of a tract of land which is offered for sale at public auction by commissioners under a decree of the court, with respect to the convenience of the several parcels to their own lands respectively, it is not unlawful or improper for them to bid for the' whole tract when it is offered to the highest bidder, with the understanding that they will divide it between themselves, and how they will divide it, if they should become the purchasers, and that each one shall be bound to comply with the terms of purchase as to his own part, as agreed between themselves.</p>

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

<p>!• In an action of assumpsit, if the plaintiff proceeds under the statute, Code of 1873, ch. 167, §4, a copy of the account sued upon, served on the defendant, must he intelligible to him and inform him of the precise nature of the claim of the plaintiff and its extent.</p> <p>2. If there is a special count in the declaration, setting out the plaintiff’s claim, hut a copy of the count of the declaration is not served upon the defendant, the service of the copy of the account, which, of itself, is unintelligible to the defendant, is not a compliance with the statute.</p> <p>3. The supreme court of the U. S. having decided that the act of congress requiring the collection of 25 cents on each package of manufactured tobacco for exportation from the exporter, is not a tax on the exportation of the article, the question whether that act is a violation of Article I, § 9, clause 5, of the constitution of the United States, is res adjudicate ; and this court is hound by it.</p>

<p>1. Ordinarily a partnership estate is liable to the payment of the debts of the firm in preference of the individual debts of the partners. This is the right of the partners inter se. The creditors of the partnership have no such right of priority over the creditor of the partners individually; but only by substitution to the rights of the partners inter se. The partners may release this right, and the creditors of the partnership can not complain ; for it is not their right, except subject to the disposition and control of the partners themselves, to whom it belongs.</p> <p>2. When one partner sells out to another the former's interest in the partnership, the question, whether the former has a right after the sale to require the partnership estate to be applied to the partnership debts in his exoneration, depends upon the true meaning of the contract of sale in this respect. Under the contract in this case, the vendor has a right to have all the assets of the partnership so applied.</p> <p>3. S, the partner who purchased the assets, and bound himself to pay the debts of the partnership, dies, leaving debts unpaid, and leaving assets of the former partnership, which go into the hands of his administrator c. t. a.; and this administrator files his bill against the widow and children to have a construction of the will, and to administer the estate under the control of the court. The outgoing partner may file his petition in the cause, to have the assets of the partnership which have gone into the hands of said administrator, applied to the payment of the partnership debts; and for this purpose to have an account of said assets.</p> <p>4. The security of the said administrator not being sufficient, the court may appoint a receiver to receive from said administrator the partnership assets in his hands, and to proceed to collect the same.</p> <p>5. If the security of the receiver is not sufficient, the court may make a rule upon him to show cause why he should not give other sureties, and upon his failure to show cause, may remove him. And it must very plainly appear that the court below erred before the appellate court will reverse its action.</p> <p>6. An account of the assets collected by the receiver having been "ordered and taken, showing the amount collected, after deducting an amount claimed by the receiver for fees as counsel in collecting the assets, the court, without deciding on his right to a credit for the fees, directs him to pay the amount after deducting the fees into bank. Another account is taken showing a further amount collected by him. And it appearing that he had not complied with the previous decree, the court may set aside that decree, remove him from his office of receiver, and appoint another in his place, and direct him to pay to the second receiver the amount he has collected, and to deliver to the second receiver all partnership assets in his hands. And may further direct that if he does not so pay over the funds in his hands, counsel named shall proceed to bring a suit against him and his sureties on his bond as receiver.</p> <p>7. Thebooksof a partnership are competent evidence to show what are debts of the partnership as against the partner who, upon the dissolution of the partnership, has purchased the assets of the partnership, and has undertaken to pay its debts. /</p> <p>8. The administrator of the purchasing partner is liable to the selling partner for all moneys of the partnership collected by his attorney at law, and for all payments made by such attorney by his direction or approval.</p>

This was an action of trespass on the case, brought by D. Jones & Co. against Joseph S. Gerst, in the corporation court of Danville, but which was afterwards removed to and tried by the circuit court of the county of Pittsylvania. The objects for which the case was brought, and the facts of the same, sufficiently appear in the opinion of the court.

In July, 1871, there were two suits pending in the corporation court of Alexandria. One was an action of debt by the Bank of the Old Dominion against James H. McVeigh & Son and William N. McVeigh, and the other by the Bank of the Old Dominion against James H. Me- ° Veigh, James Chamberlain and William 1ST. McVeigh; process was not served on Chamberlain.

This case was heard in Staunton, and was decided at Richmond. It was a bill filed by James Henry Markell and Arthur Markell against Sally Morgan Markell and Elmira Markell. The question is whether the house and lot devised by John Markell, the father of the plaintiffs, to his widow for her life, passed under the residuary clause of John Markell’s will to the plaintiffs and defendants, or passed to the plaintiffs on the death of the widow.

<p>1. In a suit in equity against an absent defendant to attach his property for the satisfaction of a debt, if it appears from the bill that the court has jurisdiction of the case, it is not necessary that the affidavit should state that the defendant has property in the county where the suit is brought, but it is sufficient if it states that he has property and effects in any county of the state.</p> <p>2. If in such case the affidavit is defective, the remedy is by motion to quash the attachment.</p> <p>3. If it appears that a copy of the attachment was served on the defendant sixty days before a decree for the sale of the land attached, the decree for the sale maj^ be made without requiring the bond provided for in the statute. Code of 1S73, ch. 148, §24, p. 1015.</p> <p>4. The certificate of M, describing himself as a justice of the peace of the county of B, in the state of Ohio, that P, a deputy sheriff of said county and state, had made oath before him, the said M, of a delivery to the defendant of a copy of the summons and attachment, not objected to in the court below, cannot be objected to in the appellate court.</p> <p>5. Under the statute, Code 1873, ch. 148, § 27, a defendant in a foreign attachment suit may appear at any time pending the suit, and have the cause reheard, tendering security for the costs. And the proviso to the statute, which excepts from the operation of the act a case in which the defendant was served with a copy of the attachment or with process in the suit, issued more than sixty days before the date of the decree, only refers to such a service in the proceedings in the suit, and not to a service out of the suit and out of the state; and a service out of the suit and out of the state can have no greater effect than, if so great as, an order of publication duly posted and published.</p> <p>G. Where persons claiming the property attached, or some interest in it, are admitted as parties in the cause, their claim is to be tried by a jury empannelled for the purpose, as provided by the statute, Code of 1S73, ch. 148, §25; and it is error for the court to pass upon the claim without the intervention of a jury.</p> <p>7. Where, on the motion of the defendant in an attachment case, the plaintiff, who is a non-resident of the state, is ordered to give security for the costs of the suit within sixty days, and fails to do so, his bill should be dismissed; and it is error to proceed to hear and decide the cause.</p> <p>8. On reversing the decree and remanding the cause, the appellate court will not direct the suit to he dismissed at once for the failure of the plaintiff to give security for costs, but will direct that he bo allowed a reasonable time to comply with the order.</p>

This was an action of debt in the circuit court of the city of Fredericksburg brought by the Atlantic and Virginia Fertilizing Company against A. Kispaugh, to recover the sum of $607, with interest, as endorser of a number of notes executed by different parties, for the price of a fertilizing manure manufactured by the plaintiffs and sold by their agents in this state.

This was an action of detinue in the circuit court of Charles City county, brought by Edmund T. Waddill against Otway P. Binns, to recover three mules, a wagon and harness. The declaration contains two counts.

This case was argued at Wytheville, but decided at Richmond. It was once before in this court, and is reported in 24 Gratt. 202. That report states the nature of the case, and gives a copy of the covenant sued on and the names of the parties to it.

This was a suit in equity in the circuit court of Norfolk county, brought by Jemima Reynolds, widow and administratrix of Joseph P. Reynolds, deceased, and his only child and heir, Robert E. Reynolds, an infant, suing by his mother and next friend, against the Portsmouth Insurance Company, to recover the amount of two policies of insurance against fire on two houses in the city of Portsmouth.

By deed bearing date the 27th of March, 1872, Rush Burgess and wife conveyed to John A. Belvin and Lewis H. Frayser a tract of forty acres of land lying in… Held: that Mrs, Mary C. Burgess did have actual notice of the deed to Belvin and Frayser to secure Davis, before the recordation of the deed to secure her. Upon the question, where the deeds should be recorded, that court held that the clerk’s office of the chaueery court of the city of Richmond was the proper office.

This was a suit in equity in the circuit court of Fredericksburg, brought in January, 1875, by Simon Mahoney, John Mahoney and Patrick Mahoney against Henry C„ Wyeth, to enforce the execution of a contract for the sale by the plaintiffs to the defendant of a tract of one hundred and seventy acres of land lying in the county of Spotsylvania.

This was an application in November, 1879, to this court by Herman G. 0. Paulsen for a mandamus to Asa Rogers, second auditor of the state, requiring him to fund certain bonds of the state, which had been issued in 1851, held by the petitioner, in tax receivable coupon bonds, as provided by the act of March 30th, 1871.

This was an application by Rosa Ann Connolly to the .. fit J n , circuit court of Fairfax county, to be permitted to file a to review the decree of said court, which had been affirmed upon appeal by the court of appeals, admitting to probate a paper propounded as the will of Edmund Connolly. That case is reported in 27 Gratt. 313, under the name of Cody v. Conly & als.

This was an action of assumpsit in the circuit court of the city of Bichmond, brought in June, 1863, by B. F. Ficklin’s executor'against Eugene Carrington, to recover the amount of a bill of exchange for four hundred and twenty pounds sterling, which B. F. Ficklin had drawn upon De La Bue, of the city of London, for the acconi - modation of Carrington, which had been accepted and paid by Le La Bue. The bill bore date March 15th, 1,864, and was payable sixty days after sight.

This was an action on the case in the circuit court of Louisa county, brought in November, 1872, by Robert S. Ellis against Henry Harris’ ex’or, to recover damages for injury done to plaintiff’s land by a dam erected by Henry Harris in his lifetime across the North Anna river. There were several questions raised during the trial as to the competency of evidence and witnesses, all of which are fully set out in the opinion of the court delivered by Judge Moncure.

This is an appeal from the judgment of the circuit court of the city of Alexandria, in which, in an action of debt brought by the First National Bank of Alexandria against Abijah Thomas, the plaintiff had recovered a judgment, and an execution had been levied on certain property as the property of Thomas, when Turnbull & Co. were permitted by the court to interplead in the case; they claiming that the property levied on was their property.

<p>1. Judgment confessed in the clerk’s office, though no process appears to have been issued or served, and though the clerk has failed to enter it upon the order or minute book or any other book in his office, and the only evidence of it is an unsigned memorandum endorsed on a declaration which seems to have been filed, and the bond enclosed in the declaration, is a valid judgment and entitled to rank as such as against other creditors of the debtor.</p> <p>2. If the entry of a judgment confessed in the office upon the order or minute book has not been made at the time of its confession, the clerk may make the entry at any time; and if he fails to do it, the court may at any time direct him to make the entry.</p>

<p>E was employed by the S Express Co. as freight clerk at P, and whilst so employed executed a bond, with sureties, by which, after reciting that whereas E is to be hereafter employed by the S Express Co. in its business of forwarding by different railroads, &c., packages of any and all kinds, and movable property, including money and securities for money, E, in consideration of said employment and the compensation he is to receive from said Co. for his services, covenants, &c., that he will well and truly perform all the duties required of him in said employment, and truly account for all money, &c., which may come to his possession or control by said employment, &e. And E and his sureties bound themselves for the faithful performance of the above covenants by E in the penalty of $2,000. After the execution of this bond, E was raised to the office of principal agent of the Co. at P, and whilst acting as Fuch principal agent embezzled money which came into his hands— Held :</p> <p>1. There being no dispute about the facts, it is for the court to construe the instrument, and the jury are bound to take the construction of the court as correct.</p> <p>2. The obligation, by its terms, extends to any employment of E by the Express Co., and the sureties are liable to the Co. for the money embezzled by E whilst acting as principal agent of the Co. at P.</p>

<p>This was a suit in the circuit court of Fredericksburg, brought by J. B. Ficklin, surviving trustee in a deed from Braxton & Barry, conveying all the property of the partnership to secure their debts, against John C. Shelton and W. P. Conway, trustee in a deed from Carter M. Braxton to secure a debt of §3,000 to John C. Shelton. The only question in the case was whether certain machinery in a building conveyed to Conway passed under that deed. The case as viewed by this court is set out in the opinion of Judge Christian. There was a decree in favor of the plaintiff, and an appeal by Shelton.</p>

<p>This is the sequel of the case of Simmons v. Lyles & als., 27 Gratt. 922. After the cause was returned to the circuit court of the town of Danville, there was a decree directing a commissioner to take, among other accounts, an account of the debts against the estate of William T. Simmons, deceased, whether by judgment or otherwise, with the order of their priority. And commissioners were appointed to ascertain whether the lands were susceptible of division in kind, or whether it was practicable to assign to the widow of said Simmons her dower in kind, and they reported that it was impossible so to assign it.</p> <p>The commissioner reported the debts of Simmon’s estate at $10,006.39. Of these there were three reported as due to Mrs. Simmons, and as entitled to priority over all others. The first was for money paid by her to Jamie-son, the original plaintiff, for the balance of purchase money due upon the land, $319.53. 2d. For money paid by her for taxes and assessments upon the mansion house in which she lived. 3d. For money paid by her for improvements on the property, $723.69. There were five judgments, which had been recovered as early as 1857 or 1858, against Simmons, as a member of a firm which before that time was engaged in business at Pittsylvania courthouse.</p> <p>Four of these judgment creditors did not set up their claims against the estate until after the cause went back; and they were all reported as having priority over the debt of Lyles.</p> <p>The only real estate of Simmons which remained unsold appears to have been his mansion house in which he lived. After his death his widow, Mrs. Simmons, continued to.live in it with her two infant children, who were supported by her—no dower having been assigned to her She paid the balance of the purchase money due upon it, as ascertained by a previous decree in the cause. She also paid the taxes and assessment on the house ; and she paid for repairs upon it; but these repairs, though they amounted to a considerable sum in the whole, seem to have been only such as was necessary to render the house comfortable.</p> <p>The creditors filed several exceptions to the report of the commissioner. The second was—To the credit to Mrs. Simmons for the balance of the purchase money paid by her. The third was—To the credit for the taxes paid by her. The fourth was—To the charge for repairs and improvements to the house.</p> <p>The cause came on to be heard on the 6th of May, 1878, when the court overruled the second exception, and sustained the third and fourth; and recommitted the report with instructions to settle the account of Simmons' administrator, and to take a further account of debts and their priorities. And it appearing that dower in the realty could not be assigned, and the court being of opinion that a sale thereof before the accounts directed have been taken would be premature, decreed that H. E. Barksdale, who is hereby appointed a commissioner for the purpose, after two weeks advertisement in the Danville News, and by printed handbills posted at three or more public places in the town of Danville, proceed to rent at public auction to the highest bidder, the house and lot in the proceedings mentioned, on the premises, for the period between the date of said renting and the 1st of January, 1879, for one-fourth cash, the balance in two, four and six months, with interest from date, requiring the lessee to execute bond with approved security therefor; and if the widow of said decedent shall be the highest bidder, said commissioner shall deduct from the rent to be paid one-third—she being entitled to the same as dowager. But before Commissioner Barksdale shall, &o.</p> <p>And thereupon, Mrs. Simmons applied to a judge of this court for an appeal j which was allowed.</p>

<p>In January, 1866, James H. Grant made oath before a justice of the peace that S. S. Carter and E. H. Monteiro, partners under the style of Carter & Monteiro, were indebted to him for rent of a house in the city of Richmond for three months, due the 1st of January, 1866, $1,000. Upon this affidavit the justice issued a warrant of distress for the rent of $1,000, which went into the hands of the high constable of the city, who levied the same on the property of Carter; and Carter thereupon executed a forthcoming bond, with Parker Campbell as his surety. In February, 1866, Grant gave notice to Carter and Campbell that he would move for judgment and award of execution upon this bond. And nothing further seems to have been done in the case, except to revive it in the name of Grant’s administratrix, until May, 1876; when the case was taken up, and the court rendered a judgment in favor of Grant’s administratrix for $2,060.20—the penalty of the bond—to be discharged by the payment of $500, with interest thereon at six per cent, per annum, from the 1st of January, 1866, till paid.</p> <p>In the progress of the cause, the defendants took two bills of exceptions to the rulings of the court, and applied to a judge of this court for a writ of error and supersedeas; which was allowed. The case is stated by Judge Buries in his opinion.</p>

<p>1. Under the constitution of Virginia it is provided that the terms of the judges of the county courts shall commence on the 1st of January, and they shaE hold their office for six years, and until a successor is elected and qualified. The term of a judge having* ended on the 31st of December, 1879, his successor was elected on the 12th of January, 1S80—Held : His term commenced on the 1st of January, 1880 ; and he is the judge of the county from the time of his qualification, and authorized at once to exercise the authority and discharge the duties of the office.</p>

This was a writ of error to a judgment of the circuit court of the city of Richmond, in an action on the case brought by Elizabeth Courtney against the city of Richmond, to recover damage for an injury sustained by her, by reason of a defect in one of the sidewalks of the city. There was a verdict and judgment for the plaintiff for $1,500; and the city obtained a writ of error. The case is fully stated by Judge Christian in his opinion.

<p>This was an action of debt in the circuit court of Lynch-burg, brought in April, 1875, by Henry O. Schoolfield, surviving partner of himself and 1ST. B. Thurman, deceased, against George A. Hinguid, surviving partner of himself and H. P. Hinguid, deceased, to recover the sum of $555.09, with interest from the 2d of July, 1858, the amount of a note of that date, payable one day after date, executed by said H. P. & G. A. Hinguid to said School-field & Thurman. There was a judgment for the plaiutiff, and an exception by the defendant; and upon his application a writ of error was allowed. The case is fully stated in the opinion of the court, delivered by Judge Buries.</p>

This was an appeal from a decree of the chancery court of the city of Richmond made on the 18th of April, 1876, in’a suit brought in 1871 by Virginia Payne and others, ■ creditors of John A. Hutcheson, deceased, against the administrator of said Hutcheson, and his widow and children.

This #as a suit in equity iu the circuit court of Culpeper county, brought in March, 1875, by the administrator of Edmund P. Major, deceased, and of Bettie Major, deceased, to recover from John C. Major, the executor of Samuel Major, deceased, the share of the estate of Samuel Major to which the plaintiff claimed that his intestates were entitled. The whole case turned upon the construction of the will of Samuel Major, deceased.

This was an appeal by John E. Purdie and Henrietta E., his wife, from the decree of the circuit court of Surry county, made on the 30th of October, 1873, dismissing their petition for a rehearing of two decrees made—one on the 11th of May, 1863, and the other on the 27th of October, 1863—in a cause depending in said court, in which said Henrietta E. Jones and others were plaintiffs, and Blair Pegram and others were defendants.

This was an appeal from a decree of the circuit court of Pittsylvania county, dissolving an injunction which had been granted at the suit of William C. Terry to restrain the sale of a tract of land which had been conveyed by said Terry and his wife in trust to secure a debt due to William B. Fitzgerald.

<p>At the May term, 1877, of the county court of Fauquier county, James M. Walton was indicted for the larceny, in November, 1874, of three beef cattle, of the value of $90. On his first trial the jury found him guilty; but the court set aside the verdict. There were subsequently two trials, in which the juries could not agree and were discharged. The fourth trial came on in May, 1878, when the jury found the prisoner guilty, and fixed the term of his imprisonment in the penitentiary at three years1; and the court sentenced him according to the verdict. The prisoner ^ereuPon applied to the judge of the circuit court of Fauquier, in vacation, for a writ of error; which was refused; upon application to a judge of this court, the writ of error was allowed. The-ease is fully stated in the opinion of the court, delivered by Moncure, P.</p>

This was a writ of error from the judgment of the hustings court of Manchester, by which Charlotte Robinson was sentenced to three years imprisonment in the penitentiary for larceny. The case is stated by Judge Christian in his opinion.

At the December term, 1878, of the hustings court of the city of Kichmond, Thomas G. Leath was indicted for gaming. The indictment contained two counts. The defendant demurred to the indictment; but the court overruled the demurrer; and he then pleaded not guilty. On the trial, the jury found him guilty, and assessed his fine at $500.

This is an appeal by William P. Nuckolls from the judgment of the hustings court of the city of Richmond, on an indictment against him for gaming. The questions in the cause and all the facts are set out in the opinion of President Moncure.

At the December term, 1878, of the corporation court of Alexandria, a grand jury of eight members indicted George E. Shinn for the larceny of a check which was in the following words and figures : Alexandria, Va., August- 18th, 1874. The Citizens Bank of Alexandria: Pay to Geo. E. Shinn, sec’y, or bearer, six hundred and tfifty-three dollars 50-100. Wesley Avery. 1653.50. The indictment contained two counts—the first stating that the check was the property of the Alexandria.

At the July term, 1877, of the county court of Scott county, Daniel Dean was indicted for the murder of Henry E. Fugate. There were two trials of the case, in which the jury could not agree. The third trial took place at the May term, 1878, before a jury whioh had been brought from the county of Washington, and ihe prisoner was found guilty of murder in the first degree, and the •court sentenced him to be hung.

The grand jury of the county court of Lee county indicted John D. Willis for the murder of James H. Reasor, and when he was set to the bar he elected to be tried in the circuit court. On his trial, the jury found him guilty of murder in the first degree, and the court sentenced him to be hung. And he applied to a judge of this court for a writ of error and supersedeas; which was awarded.

At the July term, 1879, of the county court of Bedford, Peter Wright was indicted for the murder of Bobért Maupin. At the same term of the court he was tried, •convicted of murder in the first degree, and sentenced to •be hung. . The prisoner took two bills of exceptions to rulings of' the court—the first to the admission of a juror, and the second to the refusal of the court to grant him a new trial1 on the ground that the verdict was contrary to the evidence.

At the July term, 1879, of the hustings court of the city of Richmond, Henry W. Hey was indicted for feloniously buying, or receiving, one double set of harness, of the value of $300, knowing them to have been stolen. On the trial the jury found the prisoner guilty, and fixed the term of his imprisonment in the penitentiary at three years; and the court sentenced him accordingly. And he upon applied for a writ of error, which was allowed.