Volume 74 — Virginia Reports

By deed dated the 1st day of November, 1852, Warner L. Waring and wife sold and conveyed to William H. Ellis and Thomas W. Peers a tract of land in the county of Henrico, containing 198J acres, in consideraof $9,000, nearly all of which was payable in deferred instalments secured by deed of trust on the . J same land hearing the same date, to Bo.

This was an action of assumpsit in the circuit court of Loudoun county, brought in February, 1873, by Robert Hull and Thomas ~W. Atkinson, surviving partners of the firm of Hopkins, Hull & Atkinson, against Edwin C. Broun and John T. Johnston, late partners under the name of Broun & Co. The process was not served on Johnston, and in the progress of the cause the death of Atkinson was suggested.

<p>1. The terms “matter in controversy” as used in reference to the jurisdiction of the Court of Appeals in § 2, art. VI. of the Virginia Constitution, means the “subject of litigation,the matter for which suit is brought, and upon which issue is joined.”</p> <p>2. “When th & plaintiff seeks a revision of the judgment below, if he claims in his declaration money or property of the value of not less than five hundred dollars, the Court of Appeals has jurisdiction, although the judgment may be for less, or for the defendant. But where the revision is sought by the defendant, the amount or value of th & judgment at its date, determines the jurisdiction. This is the general rule. Eor exceptions to it, see 32 Gratt. 288; and the otnrs is upon the party seeking the revision, to establish the jurisdiction of the appellate court.</p> <p>3. A city is not responsible for property destroyed by its police force, without any authority from the city, or its governing power.</p> <p>4. The judgment of a court of competent jurisdiction is always presumed to be right; and a party in the appellate court, alleging error in the court below must show it in the regular way in tlie record, or the presumption in favor of the correctness of the judgment will prevail.</p> <p>6. "When exception is taken to the admission or exclusion of evidence, or the granting or refusing of instructions, or indeed to any other ruling of the court below at the trial, the bill should be so framed, by the insertion of proper matter as to make the error, if any, apparent; otherwise the exception will generally be unavailing.</p>

This was a suit in equity in the circuit court of Fair-fax county, brought in 1858 by Richard H. Cockerille .to subject a certain tract of land called Springdale, to. the payment of two judgments amounting to $582.68, which the plaintiff had paid as the surety of John R. Dale. .

<p>R by his will gives to his wife E for life certain real estate, with power of appointment by deed or will among their descendants, so that not more than one-half shall be given to any one. If she does not appoint it shall pass to his children. By a codicil he give her permission to sell and reinvest in other lands upon the same trusts, but adds'—-but subject to the following qualification, that is to say—that whatever she shall by will, deed, or otherwise give beneficially to any of my descendants, the same shall be not given absolutely to such descendant or descendants so as to be under his or her control, but given in trust to him or her, and in case of a female to her sole and separate use. E by her will gives the property to twenty of her grandchildren, though in very unequal proportions, directs the land shall not be sold for six years, that her executor shall hold it in the meantime, and when sold he shall divide the proceeds of sale, and invest the portion of each for him or her, and pay it to each one on his or her arrival at the age of twenty-one years. Held :</p> <p>1. That the will and codicil of R required the provision made by B under the power vested in her, for her grandchildren, should be in trust for the several beneficiaries, and for the separate use of the females; that the power vested in the executor by her will which must terminate as to each one as he or she arrived at the age of twenty-one years, did not constitute him such a trustee for the grandchildren as satisfied the will and codicil of R; and that the appointment was therefore invalid.'</p> <p>2. It is not a case of the defective execution of the power, which a court of equity will remedy.</p>

<p>In 1853 W, before his marriage, sells and conveys a tract of land to B, and takes a deed of trust to secure the unpaid purchase money. B returns to the North during the war, and in his absence the land is sold by the trustee under the deed of trust and W purchases it for more than his debt. He is then married. After the war B returns and files a bill to set aside the sale; and the court annuls it, and decrees a sale of the land to pay to W the purchase money due him; and it is sold. Held : The sale to W at the trustee’s sale having been decreed to be a nullity his widow is not entitled to dower in the land.</p>

<p>There being a contest among the heirs and distributees of B over a paper offered for probate as his will, they enter into an agreement for the adjustment of their respective interests in his estate, and by deed bearing date the 26th of September, 1866, they convey the whole property, real and personal, to Tin trust, setting out the interest which each was to take; and among them was "W and his wife A, who was a daughter of B, W and A taking a certain part of the real estate and all the personalty. By deed dated the 27th of September, 1866, reciting what had been agreed upon and the recitals in the previous deed, and a promise by W to B that he would settle on A her share of the estate to the separate use of A, B and A convey the property to T for the separate use of A. Held : The deeds must be construed together; and A’s equity is a valuable consideration for the settlement; and there being no fraud in the transaction, the settlement is valid against creditors of "W, whose debts were contracted before the death of B.</p>

<p>A testator gives one-third of his estate to his son E, another third to his daughter-in-law A, and the remaining third to said A in trust for his daughter L, the wife of J, for life, and for the use of her heirs after her death; and then the will empowers and requires the trustee for said L, “as soon as convenient and practicable after having received the said legacy or proceeds of said devise, to loan out the same at interest, on good and sufficient security, by bond and mortgage on unencumbered real estate, and to apply the interest or income, which shall or may arise, accrue or be derived therefrom, to the payment and discharge of all the expenses and charges necessary and required for the proper maintenance, support, and comfort of my said daughter L; or the said trustee may, if she shall in her discretion deem it proper, pay over the income or interest aforesaid to my said daughter L, semi-annually, in money,"on her sole and separate receipt, independent of any interference, hindrance or control of her husband; and the said interest and income shall not be liable or taken for her husband’s debts or contracts, nor be applied to the payment thereof or any part thereof.” By a subsequent clause of the will, the executors were empowered and directed to sell the estate, and after paying debts and funeral expenses, and providing for an annuity for the widow, “pay the three legatees named in the will.” L was entitled to one-third of a farm called “ Greenway,” under the will, and her husband purchased the other two-thirds from the other two devisees, and in June, 1865, conveyed it to S, trustee, “ for the sole and separate use, benefit and behoof of the said L, during her life, and for her heirs after her death, in the manner and form as set forth and provided in the will ” of the testator. The son E, to whom all the personal property was given in a codicil, conveyed two-thirds of -it by deed to A and L, to be held on the terms of the will. E, a son of L, conveyed his whole interest to her separate use, with power to dispose of it as a feme sole. In April, 1871, J and L his wife, executed a note for $2,000 to R, and they and S, the trustee, on the same date, executed a deed of trust on “ Greenway ” to Janney, trustee, to secure said debt. On a bill filed by R to enforce the lien of said deed of trust. Held :</p> <p>1. L had no power to dispose of, charge or encumber the corpus of the estate derived under the will of her father, and under the deeds for her benefit (except such, if any, as was acquired under the deed of her son F) nor to anticipate the profits, income or interest which might arise or be derived from said estate, so far as they might be required for her comfortable support; and the lien of the deed of trust to Janney, trustee, extends, and can be enforced, only on any excess of profits beyond that necessary for her support, derived from “ Greenway,” if any, and the interest conveyed by the deed of F, the son, if that was any. Nor can the subsequent discoverture of L, per se, give any greater force or effect to her prior engagements than existed during the coverture.</p> <p>2. Under the will, the whole estate of the testator was equitably converted into money, but whether “ Green way ” ■ is treated as equitably converted into money, or as realty, the estate of L and the rights of the plaintiff to enforce his lien thereon remain the same.</p> <p>3. If by a fair construction of the whole instrument creating a separate estate in a feme covert, the jus disponendi, and incidental power to encumber and charge the estate, to an extent involving alienation, be inconsistent with the plan and scheme of settlement, and the exercise of these powers would defeat the plain intent pervading the instrument, they must be considered as much forbidden as if expressly denied. Bank of Greensboro’ v. Chambers, 30 Gratt. 202.</p>

The question in this case was, who. was the judge of the county court of Prince William. In March, 1878, John C. Weedon was elected by the general assembly and commissioned by the governor, judge of the county court of Prince William to fill the vacancy in the office occasioned by the death of Judge Aylett Hicol. In January, 1880, Charles Gr. Ilowison was in like manner elected and commissioned as judge of said county court.

<p>In an action of trespass on the case, the declaration charged the defendant with an assault in various forms, one of which was, by a wounding from a pistol shot, so as to cause the amputation of the leg of the plaintiff; and also set out an ordinance of the city in which the wound was inflicted, prohibiting the discharge of firearms therein; also alleging the continued sickness, disorder, and suffering in consequence of said wound ; the expense, medical attendance and other costs, consequent on said wound, which, plaintiff claimed, amounted to a large sum, and for which he claimed damages amounting to $10,000. On demurrer, Held :</p> <p>1. The declaration alleges a case of trespass at common law, and under our statute (O. Y., 1873, ch. 115, $ 6) trespass . on the case will lie, wherever trespass will, and is sufficient.</p> <p>2. Where the record contains only a certificate of the evidence, and not of the facts proved, the appellate court will only consider the evidence introduced by the party prevailing, and will not reverse the judgment unless, after rejecting all t\i% parol evidence of the exceptor, and giving full faith and credit to that of the adverse party, the judgment of the court below still appears to be wrong.</p> <p>3. Whilst the mere presence of a peison at the commission of a trespass will not make him liable for its consequences, yet every one present encouraging or inciting a trespass by words, gestures, looks or signs, or who, in any way, or by any means, countenances, or approves the same, is, in law, assumed to be an aider and abettor, and is liable as a principal to the extent of the injury done. But the burden is on the plaintiff to show that the party charged was present, aiding, encouraging, or inciting the trespass.</p> <p>4. T was the keeper of a restaurant in Alexandria city, which has an ordinance prohibiting the discharging of firearms in its streets. He had shut his front door for the night, but his light was burning, when D, H, and S came there and ° demanded admittance about midnight. S went around at a side door, went in, and told T that D wanted to come in. D and H were at the front door. D said to H, “ fire a salute,” or something of the sort. H fired, and the ball went through the door into the leg of T, wounding him so severely as to cause amputation of the leg, and seriously to impair his health. In a suit brought by T against D and H, which was, at the instance of D, tried separately against him first, and a verdict rendered against him for $8,000 damages and the costs, on a motion to set aside the verdict as being contrary to the law and evidence, and because the damages were excessive, it was refused by the circuit court, and on a writ of error affirmed by this court.</p> <p>5. Insisting on being admitted into the house of another at a late hour of the night after it is closed, and after being refused by the owner, is a trespass.</p> <p>6. The wilful firing of a pistol in the streets of a city, whether done maliciously or not, is of itself an unlawful act, and the consequences must be visited on those who commit it, or instigate it.</p> <p>7. In estimating the damages, the jury should take into consideration “ the bodily injury sustained by the plaintiff, the pain undergone, the effect on the health of the suf- ’ ferer, according to its degree and its probable duration, as likely to be temporary or permanent, the expenses incidental to attempts to effect a cure, or to lessen the amount of injury, and the pecuniary loss sustained by the plaintiff through inability to attend to his business.”</p>

<p>1. Where a “householder or head of a family” executes a homestead deed as a part and in furtherance of a design to hinder, delay and defraud his creditors in the recovery of their just debts, such deed will be vitiated and invalidated by such conduct.</p> <p>2. Circumstances which will vitiate a homestead deed executed and recorded by a debtor in failing circumstances, prior to the levying of attachments on his goods.</p> <p>3. The Constitution and laws of Virginia not allowing property to be claimed as exempt for debts contracted for the purchase price of such property or any part thereof—where a large portion of goods claimed as exempt has not been paid for, and are so mingled with those that have been, as to put it out of the power of the vendors to distinguish between the two, the onus is on the person claiming the exemption, to show which has been paid for; and he failing to do this, they will all be treated as not having been paid for, as far as the homestead deed is concerned, and therefore not exempt under the law.</p> <p>4. Qttíere: Can a “homestead” be claimed in a shifting stock of goods used in the way of trade.</p>

<p>I. B as maker and R and C as endorsers make two notes each for $1,000, which are discounted at the E & A bank, and the proceeds go to the credit of B. The notes are discounted much on the faith of a deed of trust by which 0 and wife conveyed to A a tract of land in trust to secure to the bank the payment of the notes, with the following covenant—And it is expressly covenanted and agreed, that upon the default of payment of either of said notes, or any part thereof, the said A shall upon the request of the president or other authorized officer of the said E & A bank, after giving thirty days’ notice, &c., proceed to sell at public auction the property hereby conveyed for cash, or so much as shall be necessary to defray the expenses, &c., and pay off and discharge any part of the sum of $2,000 hereby secured to be paid then remaining unpaid; and for the remainder, &c. The notes were not paid at maturity; and were not protested, nor was there any notice to the endorsers. Held :</p> <p>1. The deed of trust with the covenant therein, bound O to the extent of the trust subject, though there was no protest or notice to the endorsers.</p> <p>2. The bank was not bound to give notice to R, so as to hold him liable, in order to hold O liable.</p> <p>II. In this case C repeatedly applied to officers and directors of the bank for a postponement of the sale of the land under the deed of trust, promising to pay the debt, and never objected that the note had not been protested or that notice had not been given him. Held: He must be presumed to have known when he applied for delay of the sale, and made the promises to pay, that the notes had not been protested.</p>

This was a suit in equity in the corporation court of Norfolk, brought by The City Council of Alexandria against Lewis W. Webb, to compel the said Webb to return to the plaintiff four bonds each for $500, which had been issued by the plaintiff to Webb. There was a decree in favor of the plaintiff, and Webb obtained an appeal to this court. The case is fully stated in the opinion of the court delivered by Judge Christian.

This was an action of ejectment in the corporation court of Lynchburg, brought by London Briggs and Susan his wife against Gr. W. Smithson to recover a house and lot in the city, and they laid their damages for the retention of the house from them at $2,000. The plaintiffs filed their declaration at the rules July 81st, 1871; and thereupon a day was given to the defendant until the next rules, viz: Monday the 28th of August next, to plead to said declaration.

<p>In 1852 C sold to M a tract of land for §3,564, for -which she took his bond, and reserved a lien on the face of the deed given M, which was duly recorded. Between the sale in 1852 and December, 1855, there were other transactions between O and M, by which the latter became indebted to the former (inclusive of the purchase money for the land) §10,630.50 and for which he executed his bond, with two personal sureties, and the bond for §3,564 was surrendered. M died in 1856, leaving his whole property to his wife L, who was a sister of C. L, the widow, soon married W, and in 1863 ~W and wife conveyed the land purchased of C, with other lands, to H, made him a deed and put him in possession. On the 19th of October, 1866, the balance due on the §10,630.50 bond was §4,123, for which "W, who was then the representative, and had married the widow of M, gave his bond, got possession of the §10,630.50 bond, and confessed a judgment for the $4,123 in favor of C, which he, W, alleges was in lieu of the bond which he got possession of. W soon went into bankruptcy, and but a small portion of the judgment was paid. C denies the statement of W about his possession of the bond, and there is nothing in the record certainly to show affirmatively that she ever intended to release the lien, reserved in the deed to M. H denies all knowledge of the reserved lien at the time of the purchase, and until a long time thereafter. There was nothing done by C to induce H to believe that she had waived her lien, or to influence his conduct in any way. On a bill filed by C against H and "W and Wife, in 1871, to enforce the lien for the purchase money then due on the land sold by O to M and afterwards by W and wife to H. Held :</p> <p>1. The question of whether a lien reserved is surrendered is one of intention, on the part of the vendor, under the circumstances of each case; and there being nothing in this case to show such intention, the lien is not surrendered, and must be recognized as still existing. The lien was a security not for the bond but for the debt, and therefore the cancellation or surrender of the bond cannot extinguish the debt and the lien given for its payment, without a manifest intention to do so by the vendor, and the burden is on the purchaser to show such intention.</p> <p>2. A mere change of securities of equal dignity is not a novation of a debt, unless plainly so intended by the parties.</p> <p>3. As to the payments made on the bond for $10,630.50, H insisted that they should be first applied to extinguish the purchase money bond of §3,564, and that was therefore extinguished. Held : H not being one of the original parties to the bond, has no right to insist on how the payments shall be .appropriated, that being a right existing only between those parties; and whilst as a rule, where there are two debts, one secured and the other not, the courts will apply the payments to the unsecured debt, yet, as no general rule, applicable to every case, can be adopted without the greatest hardship, if neither party has made the application, the court will exercise a sound discretion, and make the application according to what it deems right and proper in each ease ; and in this case, the payments should be applied pro rata to all of the debts due to C.</p> <p>4. Although an action at law on a note-given for the purchase money of land may be barred by the statute of limitations, the right of the vendor to resort to the land for payment is not affected by any lapse of time short of that sufficient to raise a presumption of payment. Hanna v. Wilson, 3 Gratt. 232.</p> <p>5. Qtjíeke : M being dead, was C a competent witness to any fact with reference to the debt of $3,564, or the lien reserved to secure it ?</p>

This was an action on the case in the corporation court of Alexandria, brought by Michael Smith against the City Council of Alexandria, to recover damages for injury done to a lot owned by the plaintiff, .by the filling up a street of the city.

<p>A husband who has no interest in his wife’s real estate, except a life estate in a part of it for their joint lives, there having been no issue of the marriage, conveys her estate to a trustee for the benefit of the wife. Held : The deed of the husband conveyed no separate estate in any part of the property which did not terminate at her death; and she therefore could not dispose of it by will during her coverture.</p>

This was a suit in equity in the circuit court of Buckingham county, brought in January, 1870, by L. B. Lessueur and William H. Bumpass against John M. ISTorvell and others. The object of the suit was to recover possession of a tract of land which the plaintiffs claimed passed to themselves and the other grandchildren of Charles Perrow, Sr., under the provisions of his will, which was admitted to probate in the county court of Buckingham on the 13th of October, 1834.

<p>Manchester was incorporated as a city in 1874, and having more than five thousand inhabitants was entitled to have a judge of its hustings court. In March, 1874, 0 was elected and qualified ' as judge of said court. Held: That this being the first judge of this court, under the Constitution C’s term of office commenced on the 1st of January, 1875, and would continue until the 31st of December, 1880; and he was under the Constitution authorized to act as judge from the time of his qualification to the commencement of his term.</p>

This was an application to this court by William Williamson for a mandamus to John E. Massey, auditor ■of public accounts of tbe State of Virginia, requiring bim to receive in payment for certain taxes due from Williamson to tbe State, past due coupons taken from tbe bonds of tbe State issued under tbe act of March, 28, 1879.

This was a suit in equity in the circuit court of Pittsylvania, brought in July, 1873, by Elizabeth Tanner, widow of Eloyd Tanner, deceased, against the administrator of Coleman D. Bennett for a settlement of the accounts of said Bennett as sheriff administrator with the will annexed of Eloyd Tanner, deceased.

This was a creditor’s bill in tbe circuit court of Lunenburg county brought' by J. W. Ellis, sheriff of said county and as such administrator with the will annexed of Constance Lambert, deceased, against the administrator of TJpton Edmondson, deceased, and the three grandchildren of said Upton Edmondson as his distributees and heirs, to subject the estate real and personal to the payment of a debt of f 3,000 due from said Edmondson to the plaintiff’s testatrix.

<p>M died in 1867, having made large though unequal advancements to his four children. By his will he gave an annuity of §2,000 to his wife, secured on all his estate, and directed his real estate should not he sold during her life; and gave some small legacies. He then says—What shall remain of my estate, after funeral charges, expenses of administration and debts and bequests shall have been paid and satisfied, I direct to be so divided as that there shall be four shares. Whereof the first, together with §31,000, he gives to C; and in the same manner to each of the other three children, stating the advancement made to each; and concludes—shall severally and respectively be equal to one another. Mrs. M died in 1872, but owing to suits for large debts of uncertain amount sued for and not ascertained until December, 1875, the estate was not ready for division until that time. Held : Interest on the excess of advancements to the .children is to be charged from this date.'</p>

This case was argued at Richmond, but decided at Wytheville. It was an action of ejectment brought in the circuit court of King and Queen county by Charles H. Porter and Mary Ann his wife (who was Mary Ann Bowden), Lemuel G. Bowden, William W. Brigg and Eloise Hunter (alienees of Thomas Russell Bowden), Roderick Bland, Jr., and Ann B. his wife, who was Ann B. Corr, James E. Bland and Catharine Q-. his wife, who was Catharine Gr.

<p>Upon an indictment for assault P is fined §1 and the costs. He pays one dollar to the clerk before execution issued, and directs him to apply it to the fine. The costs are a part of the fine, and P being taken upon a capias pro fine can only be released by paying the costs as well as the one dollar.</p>

This case was heard at Richmond, but decided atWytheville. By a resolution of the general assembly of Virginia passed the 26th of February, 1867, the board of public works of the State was authorized and directed to adopt such measures as in their judgment may be necessary and advisable to realize the preferred liens of the State upon the tolls and revenues of the Chesapeake and Ohio canal company; and for that purpose contract with counsel for the enforcement of said liens…

<p>I. A separate estate may be made to a feme sole, which upon marriage will be good against the marital rights of the husband, although at the time it is made no particular marriage is contemplated.</p> <p>II. No particular form of words is necessary to create a separate estate; any words, showing clearly an intention to do so, will suffice.</p> <p>III. A testator gave his property to his wife for life, and at her death to be divided equally among his five children, two of whom were daughters. He then directs whatever portion came to the daughters to be “put into the hands of trustees of their own choosing, requiring them to give ample security for the faithful performance of the trust committed to them,” and afterwards directs: “Should any of my children die without an heir of their body, it is my desire that whatever may be then left, of what they have received from my estate, revert to the same, with such restrictions in regard to my daughters that may be entitled to a portion, as hereinbefore provided.” One of the daughters married, and during the pendency of a friendly suit for partition of the testator’s estate, but before any portion was actually assigned to her, united with her husband, who was insolvent, in a deed conveying whatever interest she may be-entitled to under the will of her father, to a trustee, to secure-certain debts of her husband named in the deed. Held :</p> <p>1. The executor of the testator would have no power under-the will to pay the daughter’s legacy to any one except a trustee chosen and qualified as the will directed, and if' the daughter had the right to convey it at all, she could. only do so with the concurrence of her trustee, and therefore the deed of trust is a nullity. Christian, J., dissenting.</p> <p>2. Qttíere: "Would she have the power to convey it, even with the concurrence of her trustee, duly chosen and ' qualified ?</p>

This case was heard at Richmond, but was decided at Wytheville. It was an action of assumpsit in the circuit court of Pittsylvania county, brought by Joseph M. Terry against Charles Ragsdale, survivor of himself and Daniel C. Ragsdale, deceased, as late partners under the name and style of D. C. & Charles Ragsdale.

<p>Upon bill by S against G and P to subject the land of G to satisfy a judgment recovered against G, P and others, it appears and was so decided by the circuit court upon appeal from a judgment of the county court on a scire facias to revive the judgment, that no process had been served on P¡ and that he had not entered his appearance in the original action, and the scire facias was dismissed for a variance between the writ and the evidence. Held :</p> <p>1. The judgment against P was void and a nullity,'the court having no jurisdiction to render a judgment against him, he not having been served with process, or appearing in the cause.</p> <p>2. The judgment against Gis a valid judgment; and is not affected by the judgment of the circuit court dismissing the scire facias for a variance between the writ and the evidence.</p> <p>3. Though at common law a joint judgment erroneous as to one must be reversed as to all; yet in this case the judgment against P was not an erroneous judgment; but it was a void judgment, and a nullity.</p> <p>4. There is a manifest distinction between an erroneous judgment and a void judgment. The first is a valid judgment though erroneous, until reversed, provided it is the judgment of a court of competent jurisdiction. The latter is no judgment at all. It is a mere nullity. The first cannot be assailed in any other court but an appellate court. The latter may be assailed in any court, anywhere, whenever any claim is made, or right asserted under it.</p> <p>5. The bill should have been dismissed at the hearing in the court below as to P, and that court having made a decree subjecting G’s land, and having made no decree against P, upon appeal by G and P, the appellate court will dismiss the suit as to P, but without the costs of the appeal; but will amend and affirm it as to G.</p>

<p>A judgment is obtained in 1870 on a contract entered into prior to the present Constitution of Virginia, and in tbe same year an execution issued thereon, placed in the hands of the deputy sheriff and levied on property of the judgment debtor, who gives a forthcoming bond; and has the property forthcoming on the day and place of sale. The debtor then claims the property as exempt under the homestead provision of the Constitution and statute of Virginia; and the deputy sheriff releases the property to him, without requiring an indemnifying bond of the creditor, or even notifying him of the claim of homestead set up by the debtor. In a suit by the creditor against the sheriff and his sureties to recover the value of the property lost by the conduct of the deputy—Held :</p> <p>1. The sheriff and his sureties are liable.</p> <p>2. The case distinguished from Huffman v. Leffel’s adm’r, 32 Gratt. 41.</p> <p>3. When an officer surrenders property he has seized under execution, he does it at his peril, and the burden of establishing that it is not liable to levy is on him.</p> <p>4. The plaintiff in the judgment, after the sheriff’s return on the execution filed his bill in equity to subject the land of his debtor to satisfy his debt and having in 1875 exhausted this fund, he then in 1876 instituted his action against the sheriff and his sureties to recover the balance. Held:</p> <p>1st. The delay in bringing the action is not a waiver of his action against the sheriff.</p> <p>2d. The liability of the sheriff and his sureties being fixed, it cannot be affected by any delay short of the statutory period of limitation.</p>

<p>1. The act of March 9, 1880, entitled “An act to provide for the election of one commissioner of the revenue for the county of Giles,” is only prospective in its operation, and does not affect the authority of the commissioner of the revenue district to which that act relates, to act as commissioner of the revenue for that district during the time for which he was elected.</p> <p>2. If the auditor of public accounts declines to deliver to the commissioner copies of the land and property books for his district, this court will compel him by mandamus.</p>

This case was heard in Richmond but was decided at Wytheville. It was a suit in equity in the chancery court of the city of Richmond brought by Frank & Adler, partners, to subject the separate estate of Janette Lilienfeld to the payment of a negotiable note for $628.66 made by her husband S. B. Lilienfeld and which the plaintiffs claimed was endorsed by her for his accommodation.

This was a suit in equity in tbe circuit court of Washington county, brought in August, 1874, by Bobert A. Brown, administrator de bonis non of Lewis Smith, deceased, against James C. Campbell and others, to subject certain lands which had belonged to said Campbell, to satisfy a judgment which had been recovered by William King Heiskell, a former administrator de bonis non of said Smith, against said Campbell and C. F. Trigg as surviving partners of the firm of Trigg &…

This was an action of trespass on the case in the circuit court of Smyth county, brought by H. G-. Franke against William M. Davis, D. T. Davis, J. Eh Davis and FT. T. G-. Fair, to recover damages for an assault and battery made upon him by the defendants.

This was an action of ejectment, brought in December, 1874, in the circuit court of the county of Wise ■ but afterwards transferred to the circuit court of Scott, by Dale Carter against William M. Greer, Friel Robinett and eight other persons, to recover a tract of four thousand and nine hundred acres of land lying in the county of Wise.

<p>1. In December, 1874, E was elected by the legislature judge of the county courts of G and B counties, and on the 12th of the same month commissioned as such; the commission stating that he was elected to fill the unexpired term of his predecessor. In December, 1879, W was elected judge of the same counties, and commissioned as such on the 20th of the same month. Without objection on the part of E, W entered, at once, upon the duties of the office, and E qualified as an attorney and practiced in both of the courts over which W presided, until the April term, 1880, when the court of appeals, having decided, that the terms of all the county judges in Virginia-, whether elected to fill vacancies or not, commenced on the 1st day of January next following their appointments, and were for the full term of six years, as fixed by the Constitution, E appeared and protested that he was the lawful judge. This claim W refused to recognize, principally on the ground that E, by acquiescing in the assumption of the office by W, and becoming a practicing attorney in his court, held an office incompatible with the office of judge, and by this conduct had forfeited and abandoned his said office. On quo warranto by E against W— Held : E was entitled to the office, and the fact that he only yielded to the legislative and executive construction of the Constitution, until the question was settled by the supreme court, was no abandonment or forfeiture of his office.</p> <p>2. An attorney at law is not an officer.</p> <p>3. An office is terminated proprio vigore, by resignation, expiration of term, and removal by competent authority. But in other cases the office is not determined ipso facto by the occurrence of the cause. There must be a judgment of amotion after judicial ascertainment of the fact, which may be by indictment or inforniation, by writ of quo warranto, or by impeachment.</p> <p>The writ of quo warranto is not abolished in Virginia, and the circuit courts have jurisdiction of the same.</p> <p>, W having waived the filing of an information in the court below, cannot be heard to complain of any irregularity on this ground in the appellate court.</p> <p>6. A motion for a continuance, is one addressed to the sound discretion of the trying court, under all the circumstances of the case, and its action will not be reversed by the appellate court unless it appears plainly erroneous.</p>

This was a suit in equity in the circuit court of Floyd county, brought in October, 1874, by Montague IT. Simmons, administrator of Delila Simmons, deceased, against Otey T. Simmons, to have an account of his agency in the management of her property.

<p>I. E, administrator of A, sells the assets, and B makes purchases for upwards of $1,000, and gives his bond to E with sureties for his purchases. B is the guardian of J, one of the distributees of A, and upon a settlement between E and B, E receives the receipt of B as guardian of J for $l,000 for so much of B’s purchases at the sale. J dies and R, his administrator, sues E for J’s share of the estate of A. Held :</p> <p>1. The duty of every fiduciary is to keep the trust, fund separate from his own property or money ; and to apply it in a due course of administration, or to invest it securely for the benefit of the parties entitled.</p> <p>2. A party who concerts or unites with a fiduciary in a misapplication of the trust funds, or in any other act contrary to the duty of the fiduciary, becomes a particeps criminis, and will be held liable accordingly.</p> <p>8. E knew the guardian was using the ward’s money in paying his own debt; and he knew, or must be held to know, that the guardian was thereby misapplying the funds, and committing a breach of trust.</p> <p>4. Though E may have acted in good faith, without a suspicion of anything improper in the transaction, the law stamps it as fraudulent, however innocent the intention of the parties ; and E is not entitled to a credit for the $1,000, thus receipted for by B as guardian of J.</p> <p>II. R as administrator of J brought an action against B, who was insolvent, and his sureties in his official bond to recover the amount due from B, and this action was pending when the decree was made in the case in equity. Held: A creditor having two different remedies, or two sets of obligors bound for his debt, may proceed against both at the same time, although he is entitled to but one satisfaction. And the administrator of J cannot be delayed by a protracted controversy with the sureties of the guardian; he has his right of action against the party who has concurred in the breach of trust committed by the guardian, and therefore incurs the like liability.</p>

This was a creditor’s suit in the circuit court of Rockbridge county brought in May, 1869, by The Rational Exchange Bank of Richmond against W. W. Major, J. GL Steele executor of George W. Johnson, deceased, G. A. White and others, to subject the real estate of said Major to the payment of his debts, and especially a judgment rendered against him in favor of the plaintiff for the sum of $703.76 with interest and costs, in the circuit court of the city of Richmond in…

<p>K’s administrator files bill against R to subject land to satisfy a judgment for purchase money of land conveyed by K to R, with covenant against encumbrances. R answers claiming that there were encumbrances on the land, arising out of a previous division of a larger tract, when it was provided that the owners of other parcels of the land should have the right to use water out of a well on the lot sold to him, and also to pass along a lane through his land. This partition was made in 1833, and R had never heard of these encumbrances until since this suit was brought in 1875, and R asks his answer may be taken as a cross-bill, and his damages may bo ascertained by a jury. Upon demurrer by the plaintiff—Held:</p> <p>1. The easements never having been used, and R not having suffered any injury from them, he is not entitled to relief in equity.</p>

<p>I. A deed takes effect from its delivery; and such delivery, like any other fact, may be established, either by direct proof, or by circumstances.</p> <p>II. Without evidence of any preceding executory agreements between the parties, or any evidence of the time of the delivery of the deeds, except what may be inferred from their dates, P, a judgment debtor, by one deed (dated Janu1, 1860, acknowledged February 1, 1860, and recorded April 13, I860,) conveyed one tract of land to H, and by another deed (dated February 1,1860, acknowledged February 1,1860, and recorded February 24, I860,) conveyed another tract to B. In proceedings to subject both tracts to the payments of judgments obtained against P, prior to either deed—Held:</p> <p>1. The tract to B was the last aliened, and, therefore, under ¡5 10, ch. 182 of the Code of ISIS, first liable to satisfy the judgments.</p> <p>2. If a deed has a date, the law intends it to have been delivered at the date; and when it is proved by witnesses, who say nothing as to the time of delivery, and is recorded, it stands recorded as a deed proved to have been delivered at its date. There is no distinction, in principle, between the presumption of delivery arising from the proof by witnesses, and the acknowledgment before a justice or notary.</p> <p>III. The provision of § 5, ch. 114 of the Code of 1873, that every deed, &c., “ shall be void as to creditors, and subsequent purchasers for valuable consideration without notice, until and except from the time it is duly admitted to record,” &e., does not apply to purchasers of different tracts of land from the same vendor, but refers only to “ subsequent purchasers ” of the same subject, as that embraced in the instrument declared to be void.</p> <p>Where several lots of land are sold on the same day, on the same terms, to several parties, all of whom are immediately put in possession.under the same agreement, as to the deeds conveying the lots, and the trust deeds to secure the purchase money—although the deeds conveying them are really delivered and recorded at different times—they will all he regarded as “alienations,” within the meaning of the statute (ch. 182, (S 10, Code 1873), as of the same day (day of sale) ; and in subjecting them to the payment of a judgment docketed against a vendor at the time of the sale, each lot must hear its proportion, according to their relative values on the day of sale, and subjected in accordance with the principles of Horton v. Bond, 28 Gratt. 815. IV.</p>

<p>These cases were heard together at Wytheville, but decided at Staunton. They are writs of habeas corpus ; and the facts are stated in the opinion of Judge Christian.</p>

<p>I. A principal for whom another, at his request, undertakes as surety, although such principal’s name does not appear m the obligation given by the surety, is as much bound to indemnify such surety, for what he pays on the obligation, as if his name appeared on it as principal; and the surety in such case is entitled by subrogation to enforce for his exoneration or indemnity all the rights, remedies and securities of the creditor against the principal debtor. And this rule is broad enough to include every instance where one pays a debt for which another is primarily answerable, and that should in equity and good conscience have been discharged by him.</p> <p>SI. A decree was rendered against T, a principal debtor, and M, his surety, on one bond; T, a principal, and W, his surety, on another; and said T, principal, and H, his surety on another bond—all given for deferred payments for purchases of land, part by T and part by T. An appeal was taken by both principals and sureties from said decree, but the supersedeas bonds were only executed by T, one of the principals, and H, one of his sureties. The condition of the bond, as prescribed by the judge awarding the supersedeas, was to pay all “ costs and damages according to law, and also any deficiency in the funds arising from the land sales decreed in meeting and discharging the sums decreed against the parties, respectively, in case the decree complained of be affirmed, or the appeal or supersedeas dismissed.” The condition inserted in the bond by the clerk, was to “pay the judgment,” in addition to that prescribed by the judge. On a suit on the appeal bond—Held :</p> <p>1. The stipulations in the bond to “pay the judgment,” and “ also the deficiency ” on the resale of the lands, should be regarded as alternative provisions, intended to accomplish but one and the same object, namely, the satisfaction of the decree and the payment of costs and damages according to law.</p> <p>2. The proceeds of these bonds when collected are applicable to the satisfaction of the decree appealed from, as reduced by the resales of the lands, apportioned amongst all of the parties against whom the decree was rendered, and H, a surety for T, a principal, now bankrupt, who joined in the appeal bond, is not only entitled to his proportion of the fund arising from the judgment on the appeal bond, to be credited on the decree against him as such surety, but he and his co-obligors in the bond, who have satisfied the penalty, are entitled to indemnity from Y, one of the principals, for the portion credited to him as derived from the said bond; and are also entitled to contribution from W, as co-security on the original contract to T, for the amount paid by them on said appeal bond.</p> <p>III. If there are two parties bound as principal and surety for a debt, and a third party afterwards, at the request of the principal, bind himself as surety for the debt, the two sureties, in the absence of any agreement to the contrary, become co-securities of the same principal, and this relation may be established by implication from circumstances, as well as by express agreement. But where there is a judgment against a principal and his surety, and a third party, at the instance of the principal, and for his sole benefit, and without the assent of the surety, enters as surety for the principal in an obligation, the effect of which is to suspend the execution of the judgment, and thus prejudice the rights of the first surety, the equity of the latter (first surety) is superior, and the second would not be entitled to contribution from the first; and, according to some authorities, the first would be entitled to indemnity from the second. This is not the case with Y and W in this case. '* '</p>

<p>1. Parties having obtained decrees against their debtor M in a suit pending in the county court, and he having become bankrupt, may bring another suit in the circuit court against the administrator and heirs of his surety E, to subject the real estate of the surety to satisfy their debts.</p> <p>2. Though the bill in such case only sets up their claims, and seeks payment of them, and does not purport to be a creditor’s bill, it is to be so treated, and other creditors of E may come in by petition and be made parties plaintiffs in the cause, and there may be a decree for account of debts in the ca^e.</p> <p>3. The bill having been dismissed on demurrer, but leave given to file an amended bill, the amended bill is not a departure from the original bill, because some of the original plaintiffs do not unite in it.</p> <p>4. The amended bill being filed in the name of some of the original parties and of the creditors who had come in by petition, and only setting out more fully the nature of their claims and the character of the bill as a creditor’s hill, is not a departure from the original bill, but is a valid amended bill.</p> <p>5. One of the debts set up by one of the petitioning creditors was evidenced by a negotiable note and to this debt the statute of limitations was pleaded. Htsld : The statute of limitations ceased to run against all debts of the debtor from the date of the decree for an account; and the note not having been barred at that date, the statute does not apply to it.</p> <p>6. The heirs of E being infants, though their guardian was a party and answered, they were entitled to be defended by a guardian ad litem, and although one was appointed for them, and there was a paper purporting to be an answer found among the papers of the cause, yet as it did not appear that it had been filed, it was error to decree the sale of the infant’s land, without an answer filed by guardian ad litem.</p> <p>7. The real estate of E had been purchased by him from M, the principal debtor in the claims set up against E’s estate, and there were some grounds for supposing that at the time of the sale and conveyance to E, M had other unencumbered land which he afterwards sold. It was error to decree the sale of E’s land to pay the debts of M, until a full enquiry was had whether there was not real estate held by M at the time of his sale to B which was primarily liable to pay these debts for which E was liable as M’s surety. '</p>

<p>1. By deed bearing date the 15th of October, 1863, Mrs. G, in consideration of §10,000, for which S executes his bond to G, conveys a tract of land to S reserving in the deed a vendor’s lien. G marries H, and H obtains from S a new bond for the principal and interest, and in October, 1868, recovers a judgment against S for the amount. S, who owned a number of tracts of land, after the judgment, conveys the lands to different purchasers ; and among them by deed dated 22d of May, 1877, S conveyed to R the land purchased of G; and R in this deed bound himself to pay the debt of S to G. By deed dated May 3, 1878, S conveyed all hjs lands including the land bought of G to L in trust to secure a number of his creditors stating their debts as about a certain sum. In August, 1878, H files his bill to subject the lands owned by S at the date of his judgment or afterwards acquired to satisfy his judgment. Held: The land conveyed by G to S, and by him conveyed to R is to be first sold to satisfy the judgment of H.</p> <p>2. The commissioner who was directed to take an account of the debts of S and their priorities, and of the lands of S and to whom and when aliened, after stating certain judgments, and debts secured by specific liens, reports that the debts secured by the deed to L were not presented before him, and he does not report them. Held : The report should be recommitted to the commissioner to take an account of said debts; and it was error to make a decree for.the sale of the lands of S before this account was taken.</p> <p>3. Por the principles upon which a court of equity proceeds upon a bill filed for the sale of a debtor’s lands, for the payment of his debts, see the opinion of Burks, J.</p> <p>4. The answer of a defendant to specific interrogatories in a bill, are evidence for him; and its statements must be taken as against the plaintiff as true unless overcome by the requisite proof.</p>

<p>I. A court of equity having in charge the mortgaged property of a railroad company, is authorized to do all acts that may be • necessary.—within its corporate power—to preserve the property and give it additional value, not only for the benefit of the lien creditors, but also for the benefit of the company, whose possession the court has displaced by the appointment of a receiver, and by taking into its own hands the property, rights, works and franchises of the company. Any acts, it would seem, necessary for the protection and preservation of the property, is a legitimate and proper act, and whatever is manifestly appropriate to such preservation, or to the enhancement of the value of the property, not in excess of the powers of the corporation, will always be upheld and enforced by the courts.</p> <p>II. In such a case the court may authorize the receiver to take a lease of another railroad, where it is manifestly for the interest of the creditors and the company.’ And so on like conditions the court may authorize its receiver to contribute out of the accrued revenues in his hands, to the building of another railroad.</p> <p>III. The road in the hands of the court, is the property of a company, constituted by the consolidation of three railroad companies, all of which had before the consolidation issued their bonds and executed mortgages on their property' to secure them. The court may direct the property of the consolidated company to be sold as a whole; and afterwards fix the amount to be paid to the several holders of the bonds and mortgages, on the respective roads.</p> <p>IV. One of the railroad companies not having been able to pay the interest on their bonds, gave to the holders of the interest coupons the coupon bonds of the company for the amount of said interest. Held :</p> <p>1. This was not a novation of the debt for the interest i and these bonds are secured by the mortgage.</p> <p>2. The coupons for interest bore interest from the time they were payable.</p>

<p>1. In the case of a claim secured by a mortgage although the remedy by an action at law for the claim may be barred by the statute of limitations, the remedy under the mortgage will not be aifected by any lapse of time short of the period sufficient to raise the presumption of payment.</p> <p>2. A trust deed by a railroad company provides that upon a sale of the trust property by the trustees out of the proceeds of sale, after satisfying the costs and expenses of sale and of this trust, the trustee shall pay to the holders of the bonds secured thereby the amount so held by them. If the trustee has performed services in executing the bonds, &c., for which he is entitled to compensation, he is entitled to be paid for these services in preference to the bondholders secured by the deed.</p>

<p>1. "Where a railroad has been taken possession of by a court of equity, and a receiver to manage the road has been appointed, if at the time the receiver was appointed the railroad company was indebted for services rendered or materials furnished them, these creditors are entitled to be paid out of the net revenues of the road in preference to the mortgage bondholders; and if said net revenues have been applied to pay interest to these bondholders, or to the repair, improvement, or the extending of the road, upon a sale of the road, the proceeds of the sale of the road to the extent of the said net revenues are to be applied to the payment of these creditors.</p> <p>2. Eor the principles which will guide a court of equity which has taken possession of a railroad and appointed a receiver, in adjusting and enforcing the rights of all the creditors and parties interested, of and in the railroad company, see the opinion of Staples, J., and the cases of Fosdick v. Schall and Hale v. Frost, 9 Otto 235, 389.</p>

This is another branch of the case of Graham v. The Washington City, Virginia Midland and Great Southern Railroad Company, then pending in the circuit court of the city of Alexandria.

This was a suit in equity in the circuit court of Warren county brought in February, 1866, by Acldison B,omine in his lifetime, and on his death revived in the name of his administrator William H. Brown, against William H. Triplett and Mahala his wife and another, to subject certain real estate and other property the separate property of Mahala Triplett, to satisfy debts due from said Mahala to the plaintiff.

<p>I. S qualified as guardian of M in Prederick county. Her father lived in Hampshire county now in West Virginia, and he owned real estate in that county, which upon a bill filed by S was sold, and the proceeds paid over to him, and brought by him to Prederick county where he lived. M may sue S for a settlement of his account as guardian in Prederick.</p> <p>II. The income of the estate of M, the ward, being insufficient for her support and education her guardian S expended the principal of the proceeds of the sale of her real and personal estate upon her, and upon the settlement of his account after the termination of his guardianship, he was still in advance to his ward. Held :</p> <p>1. The guardian was not authorized to use the principal of the ward’s real estate for the support and education of his ward; and the court of equity settling his account could not render the expenditure valid by its decree.</p> <p>2. Chapter 123, $ 13, Code of 1873, which authorizes the chancery court in certain cases, to allow the application of the real estate to the maintenance and education of a ward, does not authorize the court to sanction such application already made by the guardian; but the order of the court must be first made in order to authorize it.</p> <p>3. The guardian may apply the principal of the ward’s personal estate to her maintenance and education, in a proper case; and if the court would have authorized it upon application to the court, before it was done, the court may and will sanction it upon settlement of his accounts.</p>

This was a suit in equity in the circuit court of Clarke county, brought by the committee of Robert 3?. Crigler, a lunatic, against the executor of John Alexander, deceased, a former committee of said lunatic, for the settlement of the accounts of said Alexander as committee of said Crigler.

This is the sequel of the case of Wood al. v. Krebbs ais., 30 G-ratt. 708.

This was an action of ejectment in the circuit court of Amherst county, brought by A. M. Davies and P. E. Waugh, partners under the name of A. M. Davies & Co. against Henry W. Creighton, to recover a tract of two acres of land lying in Amherst county. On the trial the plaintiffs offered in evidence a deed from the trustees of the Mutual building fund association of Lynchburg to the plaintiffs, and also with it the articles of association of the said company.

<p>1. A person appointed by a court of equity in a pending cause, a receiver to collect the purchase money of lands sold by him as commissioner under a previous decree in the cause, and for ■which he had taken a bond with surety to himself as commissioner, is not a creditor in the sense of the statute, Code of 1873, ch. 143, §§ 4, 5, to whom a surety on the bond may give the notice to bring suit upon it.</p> <p>2. If the receiver was such a creditor, he could only have authority to sue after giving the security required of him in the decree appointing him receiver ; and in the absence of clear and satisfactory proof that he had given the security required, the notice to him is not sufficient to release the surety.</p>

This was a bill in the circuit court of Shenandoah county, filed by Walton Craig, administrator de bonis non with the will annexed of Peter Craig, deceased, against Philip Helsley, and his sureties in his official bond, as curator of the estate of said Peter Craig. The hill stated the death of Peter Craig leaving a will, in which said Philip Helsley was appointed executor. That the probate of the will was contested, and Helsley 'was appointed curator of the estate.

This was an action on the case in the circuit court of Shenandoah county brought in December, 1877, by David IT. Holmes, against Joshua Olem, for the seduction of the plaintiff’s daughter. The declaration contained two counts. The first count set out the case very fully, claiming that the daughter was plaintiff’s servant, that he had been deprived of her services, and had been put to great expense, &c. The second count is brief.

This was a suit in equity in the circuit court of Clarke county, brought in July, 1877, by Aaron Dublé to have a settlement of the partnership accounts of himself and Champ Shepherd. These parties hacl entered into a partnership in 1859 to carry on a mill. The partnership was continued until 1865, when it was dissolved, And Shepherd took possession of the books and accounts and proceeded to settle up the affairs of the partnership.

This is a writ of error to a judgment of the circuit court of Franklin county, rendered on the 15th day of April, 1876, in favor of the defendant in error, James S. Taylor, who was plaintiff in the court below, against the plaintiff in error, The Southern Mutual Insurance Company, which was defendant in the conrt below, for the sum of twenty-two hundred dollars, with interest thereon from the 7th day of January, 1875, until payment, and liis costs by him about Ms suit in…

At the March term, 1879, of the hustings court of the city of Richmond, John E. Poindexter was indicted for the murder of Charles O. Curtis. He was tried in May and the jury found him guilty of voluntary manslaughter, and fixed the term of his imprisonment in the penitentiary at two years; and the court sentenced him accordingly. And thereupon the prisoner applied to this court for a writ of error and supersedeas; which was allowed.

<p>At the April term, 1879, of the hustings court of the city of Richmond, the grand jury found an indictment against Angelo Baccigalupo, for that “on the 15th day of March, in the year eighteen hundred and seventy-nine, at the said city, and within the jurisdiction of the said hustings court of the city of Richmond, in and upon Mary Baccigalupo did make an assault, anc^ ^ier’ ^ie sa^ ■^ary Baccigalupo, feloniously and maliciously did stab, cut and wound, with intent her, the said Mary Baccigalupo, then and there to maim, disfigure, disable and kill. Against the peace,” &c.</p> <p>The prisoner filed the plea of “ not guilty; ” and on the trial the jury found him guilty, and fixed the term of his imprisonment in the penitentiary at eight years; and he was sentenced accordingly. He thereupon applied to a judge of this court for a writ of error and supersedeas; which wTas allowed.</p> <p>In the progress of the trial the prisoner took exceptions to the rulings of the court; which are set out in’ the opinion of Judge Christian.</p>

Ill September, 1879, Nathaniel L. Price was indicted in the county court of Pittsylvania for the murder of Dandridge Burnett. On his trial the jury found he was not guilty of murder as charged in the indictment, but guilty of involuntary manslaughter, as charged therein; and they fixed his fine at $500.

This was an indictment in the county court of Hanover against Thomas Glass, for failing to turn the crank of the Moffett register at the time and in the presence of the person to whom he sold a drink. There was a verdict and judgment against the defendant, and he thereupon obtained a writ of error and supersedeas. The case is stated in the opinion of Mon-cure, P.

<p>B and L are jointly indicted for the murder of S. On the trial of L the jury find him guilty of murder in the second degree, and the court refuses to grant L a new trial, and enters a judgment on the verdict. Upon the evidence—Held : That L had no part in the killing, either as acting or advising, or countenancing it, and therefore though present at the time he is not guilty of any offence.</p>

<p>1. M and two others are indicted for murder in the county court of L, and on their arraignment they elect to he tried in the circuit court. A writ of venire is issued by the county court for the summoning of a jury, returnable to the circuit court, and the 24 men selected by the county court are summoned to the circuit court. On the motion of the prisoner this venire is quashed by the circuit court, and the court directs another venire of 24 to be summoned, and names the 24 summoned on the first venire. Held : The directing the same 24 men to be summoned is not error.</p> <p>2. Upon the trial of a prisoner for murder, he twice makes a confession, both of which are admitted in evidence. There is very little doubt that the first confession was made without any promise or threat to induce it; and there is no doubt the last was so made. Held : The evidence was admissible.</p> <p>3. Upon the evidence in this case, three persons go together to rob a store. One, M, is posted some distance from the house to watch; and the other two obtain admittance into the storehouse, kill the owner and rob the store, and M shares the booty. Held : M is principal in the first degree of the crime of murder, and may be punished with death.</p> <p>4. Upon an indictment of M, a man of color, for murder, he is not entitled to have a mixed jury.</p>

At the December term, 1879, of the county court of Amherst, Nelson Mitchell was indicted for the murder of John C. Gillespie. He was tried at the February term, 1880, of the court, and the jury found him guilty of murder in the first degree. He thereupon moved the court for a new trial, on the ground that the verdict was contrary to the evidence; but the court overruled the motion, and sentenced the prisoner to he hanged.

This was an indictment in the county court of Bed-ford, of Peter Wright for the murder of Bobert Maupin. The case was once before in this court, when the judgment was reversed, on the ground that an incompetent juror had been admitted to serve on the jury. On the second trial of the prisoner there was a verdict of murder in the first degree, and the court sentenced him to be hung. And thereupon the prisoner applied to this court for a writ of error; which was allowed.

<p>1. The Singer manufacturing company, a foreign corporation, has a place of business in Richmond, where it sells its machines, made out of the State, and has paid a tax to the State of §322. The company is a resident merchant in the sense of the revenue laws of Virginia, and may appoint an agent to conduct its business. But this does not authorize the agent to take its machines to another county and there sell and deliver them to the purchasers, without paying in that county the tax prescribed by the statue.</p> <p>2. Whilst the statute, section 35 of the revenue law of 1877, allows a resident merchant or manufacturer, who has paid a tax on his business of §100, to sell his goods by sample, card, &c., in any other county, without paying an additional tax, he is not authorized to take his goods or wares to another county and there sell them, without paying the tax prescribed by the said revenue laws.</p> <p>3. The fact that the Singer manufacturing company is making its machines under a patent of which it is the assignee, does not entitle the company to bring her machines into the State, and sell them here without complying with the requirements of the State revenue laws.</p> <p>4. There is nothing in these provisions of the State revenue laws in in conflict with the Constitution of the United States.</p>