Volume 75 — Virginia Reports

<p>This case was heard in Staunton, but was decided in Richmond. In a creditor’s bill pending in the circuit court of Rockingham county, by. Swartz and als. v. Levi Shaver, to subject the real estate of said Shaver to satisfy judgments which had been recovered against him, George Sherman, in October, 1879, filed his petition in the cause, setting out the facts upon which he claimed to be subrogated to the lien of a judgment recovered in October, 1857, in the circuit court of Rockingham county, by P. Rham against G. H. Harris and said Shaver. The facts as stated in the petition, and as appears from the evidence, are as follows:</p> <p>In October, 1859, P. Rham recovered a judgment against H. M. Harris and Levi Shaver for $300, with interest and costs. An execution of fieri facias was issued on this judgment, which went into the hands of J. R. Coursey, deputy of John R. Keogler, sheriff of the county, and was levied on property of Harris and Shaver; but Shaver’s property was not sold, and was disposed of by Shaver. Rham then, upon a notice to Keogler, the sheriff, recovered a judgment against him for the amount of the judgment, and this judgment was paid by Keogler. This was in 1860. Coursey became insolvent, and in 1864 removed from the State. In 1875 the administrators of Keogler recovered a judgment against George Sherman and another who were the sureties of Coursey in his bond to Keogler, for the faithful performance of his duties as deputy for Keogler, for the amount that Keogler had been compelled to pay on Rham’s judgment against Shaver; and the other surety being insolvent,' the judgment was paid by George Sherman.</p> <p>Some of the judgment creditors of Shaver opposed the prayer of the petition, insisting that under the circumstances of this case Sherman was not entitled to be subrogated to the lien of Rham’s judgment; the lands of Shaver having been sold in the progress of the cause, and the proceeds of the sale not being sufficient to pay the subsequent judgments against Shaver.</p> <p>The cause came on to be heard on the 7th of November, 1879, when the court held that Sherman was not entitled to be subrogated to the lien of Ilham’s judgment against Shaver, and dismissed the petition. And thereupon, Sherman having died in the progress of the cause, his administrator applied to a judge of this court for an appeal; which was awarded.</p>

This case was heard in Staunton, but was decided in Richmond. Held: on the first ground of exception, that the four children of Mrs. Knick being parties in interest and parties on the record, were incompetent witnesses in the case, and excluding their evidence, made a decree in. favor of Samuel G. Knick; and a commissioner was directed to convey the land to him, upon his payment of the balance of the…

TMs was an application to tMs court by Cassius F. Lee, Jr., for a writ of mandamus to compel M. B. Harlow, treasurer of the city of Alexandria, and as such collector therein of the State taxes, to receive in payment for taxes of 1879 due by the petitioner, the over due coupons of bonds issued by the State under the act of March 30th, 1871, which provided that coupons to bonds issued under that act should be receivable for all taxes, debts, &c., due the State.

George Edwards, of tlie county of Pittsylvania, died in 1863, intestate, leaving a widow, eleven living- children, and tlie descendants of two who had died in his lifetime. He left a considerable estate, consisting of personal property, slaves, and two tracts of land lying on Pigg river in said county; and his son John A. Edwards and his son-in-law C. L. Powell qualified as his administrators.

This was an action of debt in the circuit court of Bed-ford county, brought by Mary J. Slaughter against the city of Lynchburg, to recover the interest on a coupon bond No. 8, issued by the city of Lynchburg in 1864. The defendant pleaded “ nil debit,” and it was agreed that under this plea the defendant might rely upon any defence, and give in any evidence that it might rely upon or give in evidence under any proper special plea.

<p>This was a motion to dismiss an appeal on the ground that it was improvidently awarded. It was a suit in the circuit court of Lunenburg by Elder’s ex’ors and others, creditors of John A. Harris, to set aside a deed made by said John A. Harris to William A. Harris, and a deed made by William A. Harris to Junius H. Harris, on the ground that the deeds were made to hinder, delay and defraud the ■creditors of John A. Harris. The case was once before in this court, when the deeds were held to be fraudulent, and the case was sent back to the circuit court of Lunenburg for an account of the personal estate and of the rents and profits of the land conveyed by the deed to William A. Harris. When the cause went back to the circuit court that court made a decree referring the accounts to a commis- sioner, who made his report, to which William A. Harris Harris filed exceptions; which are set out in the opinion of Judge Anderson.</p> <p>The cause came onto be heard at the November term, 1879, when the coiirt, without passing upon the report of the commissioner or the exceptions thereto, and being satisfied that the evidence in this case was contradictory, decreed that a jury be empaneled at the bar of the common law side of the court to try the following issue: What was the value on the 1st day of November, 1865, of the personal property embraced in the deed of that date from John A. Harris to William A. Harris, as set forth in the report of the said commissioner ? Erom this decree Elder’s ex’ors obtained an appeal to this court.</p>

William Eawlings, of the county of Loudoun, died in 1859, leaving a widow, but no children. He left a large estate, principally in debts due to him. These amounted to about $83,000.

This was an action on the case in the circuit court of the •city of Richmond, brought by Alfred Moses against The Old Dominion Iron and Nail Works Company, to recover damages for injury to a house of which the defendant was tenant of the plaintiff. Upon the trial there was a verdict and judgment for the defendant, and a writ of error to this court. The case is fully stated by Judge Staples iu his •opinion.

<p>TMs was an action of ejectment in tlie circuit court of Fairfax county, brought by Fanny T. Mason and others, heirs of Murray Mason, deceased, against Adelaide Tuttle and others, to recover a tract of land in said county which had been sold under confiscation proceedings against Murray Mason during the late war, and bought by Adelaide Tuttle, to whom it was conveyed by the marshal of the district court of the United States. On the trial a jury was named, and the case submitted to the court, and there-was a judgment in favor of the defendant. And thereupon the plaintiff applied to this court for a writ of error; which was awarded. The facts are stated in the opinion of Judge Anderson.</p>

This was a suit in equity in the circuit court of Pittsylvania county by John C. James against the administrator of William H. Hall, Eliza P. Hall, and John H. Hall, to subject a tract of land which had been conveyed by William H. Hall, and Eliza P., his wife, to their son John H. Hall, to satisfy a decree which the plaintiff had recovered against James H. Collie, sheriff of Pittsylvania county, and as such administrator of Stephen Law, deceased.

In March, 1857, Mary E. Toms and six others, her sisters, who were infants suing hy their next friend, filed their hill in the circuit court of Hanover county against Ohediah Archer, in which they stated that their mother, in her lifetime, had purchased a small tract of fifty acres of land from said Archer for which they believed she had paid; but the said Archer insisted there was a balance still due for the land, and he refused to convey the land to her.

<p>This was a suit in equity in the circuit court of Loudoun county, brought by Marshall W. Carpenter against J. F. Garrett and others to recover an interest in a tract of land which belonged to Silas Garrett, deceased, at his death. The plaintiff married Huldah, one of the daughters of Silas Garrett, who, after giving birth to two living children, departed this life; and he claimed to be entitled as tenant by the courtesy in his late wife's share in the land. The court dismissed the bill, and the plaintiff obtained an appeal to this court. The case is stated by Judge Christian, in his opinion.</p>

Tliis was an appeal by C. U. Williams and J. G. Blackwell? trustees, from two decrees of tbe chancery court of the city of Richmond in a cause depending in said court, in which G. P. Hawes and Jeannie H., his wife, were plaintiffs, and said Williams and Blackwell, trustees in a deed from C. T. Wortham & Co., and said Wortham, Sloan and Morton H. Sloan were defendants, and in a cross-bill filed by the said Morton H. Sloan, by her next friend, against the said parties.

This was a suit in equity brought in the circuit court of Princess Anne county, but afterwards transferred to the circuit court of the city of Norfolk, by George G. Garrison, to enjoin Thomas M. Hall and John M. Frazier from trespassing upon and cutting and carrying off timber from a tract of land in the county of Princess Anne, situated in what is called the Desert, which the plaintiff claimed belonged to himself and his sister Emily Mullins, the wife of John Mullins, and…

These were two actions in the circuit court of Henrico, for malicious and false imprisonment, one of them brought hy Joseph Hagman against James S. Forbes and John A. Allers, and the other by Frederick Graviller against the same defendants. The facts in both cases are the same, and arose out of the same transaction.

This was a suit in equity in the circuit court of Fairfax county, brought by Guy Humphreys and his two sons, Newton and G. C. Humphreys, against John S. Benson, to enforce the specific execution of. a contract for the sale of . a tract of land by the plaintiffs to the defendant. Benson was in possession of the land, and had made all but the last payment.

This was a suit in equity in the circuit court of Prince Edward county, brought in January, 1871, by 'William T. Harvey against Mary M. Hughes, to subject the estate of the said Mary M. Hughes to satisfy a judgment for $461.28, with interest and costs, which he had recovered against Moses T. Hughes and the said Mary M. Hughes.

The whole question in this case decided by this court was, whether the appellants were authorized to bring the suit in their names. It was a bill filed in the circuit court of Fauquier county, brought by W. W. Thornton and eighteen other persons, in which they state that they constitute the county school board of the county of Prince William, with Wm.

<p>Upon bill by M against P and S, to subject certain real estate which had been conveyed by P to S to pay a debt due from P to M&emdash;Held : Upon the evidence that the conveyance was not a mortgage, but an absolute conveyance; that the price paid by S to P for the property was not so inadequate as to indicate fraud, and that the transaction was bona fide.</p>

Tliis was an actionof assumpsit in tlie circuit court of the city of Portsmouth, brought by Memeyer, Etheridge & Brooks, partners doing business in the city of Portsmouth, against Y. Logan Wright, to recover the amount of an ac- count for fertilizers and of a note for $134, the whole amounting to $833.50.

On the 26th of April, 1876, Joseph R. Anderson, receiver of the chancery court of the city of Richmond, in the case of A. Y. Stokes & Co. against the Tredegar Company, purchased of the Petersburg Railroad Company a quantity of the old iron rails which had been taken up from the track of said road, the said rails then being stored at Petersburg, and were to be delivered at that city on the cars for Richmond.

This was a suit in equity in the circuit court of the city Lynchburg, brought by Henry W. Doyle and another against William and Edmund Deacon, to compel them to remove -obstructions which they had put in what the plaintiffs claimed was a roadway extending from their lots, past the lots of the defendants, to the public road.

TMs was an action of assumpsit in tlie circuit court of tlie city of Bichmond, brought by Join' Kelly, surviving partner of Kelly & Larguey, against the board, of public works, to recover tke sum of $10,491.97 with, interest, which, the plaintiff alleged Kelly & Larguey had advanced to the State in the construction of the railroad. running through the Blue Budge tunnel.

William Allen, of the county of Halifax, died in 1862, intestate, leaving a widow and eight children, and leaving a considerable estate in lands and slaves. Under an order made in December, 1862, commissioners appointed by the court divided the land and slaves, setting apart a certain portion of the land and certain slaves to the widow as her dower, and dividing the other two-thirds among the children, assigning to each a specific part of the land.

This was a suit in equity in the circuit court of Henrico county, brought in September, 1876, by Charles A. Campbell & Co., to subject a small parcel of land lying immediately adjoining the corporate line of the city of Richmond, to satisfy a judgment for $721, and interest and costs, the plaintiffs had recovered against the Nonpareil FireBrick and Kaolin Company of America..

This was a bill by Walter Bowie, filed in May, 1876, to-enjoin the sale of a tract of land called Eaton Point, in the county of Westmoreland, under a deed of trust executed the 12th day of June, 1841, and recorded the 24th, by which Eobert Murphy and Eliza E., his wife, conveyed to-William Hutt the said land in trust to secure the sum of $1,543.34, which the said Murphy had borrowed from the Westmoreland Poor School Society, a body incorporated in 1813.

The questions in this case arose in a suit in equity in the chancery court of the city of Richmond, brought by C. R. and P. H. Smith, to enforce a deed of trust which had been executed by C. Wendlinger, conveying a lot with the buildings thereon to a trustee to secure certain notes which said Wendlinger had made to the plaintiffs.

This was a bill in the circuit court of Halifax county by Luther Pixley and others to enjoin the Boanoke Navigation Company from charging tolls for the navigation of the Boanoke river and its tributaries, on the ground of its failure to keep these rivers in a proper condition. The injunction was granted. There was a demurrer to the bill, and also an answer by the company.

TMs was an action of debt in the hustings court of the city of Petersburg brought in March, 1876, by the Peters-burg Savings and Insurance Company against William C. Lumsden, upon a negotiable note for $3,388, bearing date May, 1873, and payable December 1st following, made by T. T. Broocks, .and endorsed by said Lumsden to tbe plaintiff.

Tils was a suit in equity in the circuit court of tiie county of Pittsylvania, brought in August, 1876, by John E. Jones and. Lucy 0., Ms wife, against JolmL. Hurt. The bill charges that on the 24th of September, 1872, Mrs. Nannie C. Hurt, the wife of John L. Hurt and sister of the plaintiff, departed this life without heirs of her body, leaving the said Lucy C. Jones her sole surviving heir at law.

This was an action of ejectment in the circuit court of Norfolk county brought by Walter H. Doyle and his brothers and sisters, children of John Doyle, deceased, and Anne H. Bowden, against Charles H. Stonestreet and Edward J. Sourin, to recover the one undivided moiety of a lot of ground in the city of Norfolk. Both parties deduced their title from Walter Herron, who died in the city of Norfolk in April, 1838.

TMs was a suit in equity in tie circuit court of Pittsylvania, brought by John L. Hurt, for the benefit of James D. Hurt, against Isaac Coles and Martha B., his wife, to subject the estate of said wife to the payment of a bond for ^1,442.49, alleged to have been executed by the said Martha B. whilst feme sole.

In 1878-79 RicMnond H. Williams was a mercliant carxying on retail business at West Point, in the county of King William. He seems to Lave purchased Ms goods in the city of Baltimore. He had become indebted to a number of merchants in that city; and some of his creditors instituted actions against him, on which judgments would be rendered at the April term of the court, 1879.

This was a suit in equity in the circuit court of the city of Bichmond, brought by Mrs. Georgiana L. Gatewood, by her next friend, Leroy H. Kemp, against her husband, George W. Gatewood, and others, to compel the said George W. Gatewood to execute an agreement between them by which a parcel of land belonging to her was sold and the proceeds of the sale applied to discharge a debt secured by a deed of trust upon a tract owned by the said George W. Gatewood, and which was to…

<p>1. All interest on property held by a bankrupt, and all property which he has fraudulently conveyed, come within the jurisdiction of the bankrupt court. But that ourt has no jurisdiction over property bona fide conveyed to a purchaser by the bankrupt before he is declared a bankrupt. And a creditor by judgment docketed against the bankrupt recovered before a bona fide conveyance of land, may proceed in a State court to enforce his judgmemt lien against said land.</p> <p>2. Upon a bill to review a decree, the bill, answers and all proceedings in the cause are to he looked to, to ascertain whether there is error in the decree.</p>

This was an action of debt in the circuit court of Loudoun county, brought by J. William Monroe and Caroline D-Monroe, Ms wife, against Fenton Furr, executor of George Keen, deceased, upon a paper of wMcHi the following is a. copy: 2,000. (U. S. rev. stamp §1.00.) One day after date I promise and hind myself, my heirs or administrators, to pay to Caroline D. Monroe, the just and full sum of two thousand dollars, for value received of her.

<p>1. The difference between the effect of a demurrer to evidence and a motion for a new trial founded upon a certificate of the evidence is, that in the former case the demurrant is considered as admitting the truth of his adversary’s evidence, and all just inferences to be drawn therefrom by a jury, and as waiving all his evidence, which conflicts with that of his adversary, and all inferences from his evidence, which do not necessarily result therefrom; whilst in the latter case, the exceptor waives all of his oral testimony, and must succeed, if at all, by showing that the lerdict of the jury is erroneous, upon the testimony of the successful party.</p> <p>2. In 1826 P conveyed to his brother E a tract of land for a nominal consideration, and a few days thereafter E conveyed the same tract to J, a son of P, then eight or ten years old, living with his father- on the said land, for a like consideration. When J arrived at the age of eighteen he was put to the trade of a cabinet maker by his father, and when he arrived at maturity, between 1840 and 1S43, married, and afterwards lived separate from his father. P, the father, resided on the land at the time of the conveyance to E, continued to reside on it, claiming it as his, and exercising complete and notorious dominion over it (oncé in 1843 against the protest of J, who was denied this right and ordered off the land), until the death of P in 1873. In 1853 P conveyed to his son J another tract of land, with which J said he was satisfied, and that he • no longer claimed the first-named tract. J lived and died on the tract last conveyed to him. On the death of P, in 1873, he devised to his son P, Jr., a son by his second marriage, the first named tract. In an action of ejectment, brought after the death of P and J by the heirs of J against P, Jr., to recover said first conveyed tract&emdash;Held :</p> <p>1. P, and those claiming under him, having held continual, adversary and notorious possession of the land under claim of title, with the knowledge and acquiescence of J, for a period beyond the statutory bar, the heirs of J cannot now recover it from P, Jr., the devisee of P.</p> <p>2. Although a party may enter into possession in privity with the true owner, he may, without first surrendering the premises, dissever such relation, and claim by adverse title.</p> <p>3. Where possession is originally taken and held under the true owner, a clear, positive and continued disclaimer and disavowal of that ■ title, and the assertion of an adverse one, must be brought home to the true owner before any foundation can be laid for the operation of the statute of limitations; and this was done in this case.</p> <p>4. Adversary possession must be actual, exclusive, open and notorious, accompanied by a bona fide claim of title against that of all other persons, and it must be continued for the period of the statutory bar.</p> <p>5. A mere naked possession, without a claim of right, no matter how long, never ripens into a good title, but is regarded as being held for the benefit of the true owners.</p> <p>G. Quaere: What is color of title ?</p> <p>7. The effect of color of title is to fix the eharacter of the occupant’s possession, and define its extent and limits. As a general rule, the possession of one who has a colorable title, is coextensive with the boundaries of the instrument under which he claims, in the absence of any actual possession by the true owner; whereas the possession of one entering and holding under a mere claim of title is confined to the land in his actual occupation.</p>

<p>In January, 1874, Benjamin F. Miller filed liis t>ill in ■equity in tide circuit court of Eappahannock county, in ■which, he set out that in the year 1859 Eastham Jordan, John Miller, James F. Brown and complainant entered into a co-partnership for the purchase and sale of cattle on equal terms as to profit and loss; that they purchased a large number of cattle and disposed of them; and as such partners they contracted liabilities, many of which were still ■outstanding, and complainant had advanced large sums in •satisfaction of said liabilities. That there had been no settlement between complainant and his partners of said co-partnership, and that the accounts of and respecting the same are still open, depending and unliquidated. That •James F. Brown, one of the partners, had been adjudged a bankrupt, and had received his discharge, and that F. M. Bruce had been appointed his assignee.</p> <p>And making Jordan, John Miller, Brown and his assignee Bruce defendants, he prayed that an account might be taken of all the co-partnership dealings and transactions between the said partners, and of the debts and liabilities outstanding of said co-partnership, and also of debts due to it, and that what shall appear to be due to the complainant from the said partners may be decreed to him, and for general relief.</p> <p>Jordan answered the bill. He said that a partnership between the parties mentioned in the bill was formed for the purpose of buying and selling stock cattle; that the powers of said partnership and of each of the partners was limited to this business; that beyond the purchase and sale of stock cattle the partnership agreement did not extend; that it was specially contracted and agreed by and between the said parties, that there should be no dealing in or purchase of cattle for the purpose of grazing; that the cattle purchased should be resold, as circumstances and the market would allow; that the costs and charges of transporting, feeding and caring for the stock cattle should be a charge upon the partnership; that the fund for the purchase, expenses, &c., should be advanced in equal proportion by the several partners, and the profits and losses in like manlier distributed. He says said partnership venture résulted in large profits, no part of which he has received. He has no-personal knowledge of the partnership matters, its debts or its assets; but he is satisfied and avers that upon a just and fair settlement of the partnership account, all debts lawfully and equitably binding said partnership will be fully paid, and leave a surplus to be distributed according to thé rights of said partners. He denies that there are any outstanding and unliquidated debts binding said partnership, or that the plaintiff has advanced monies and discharged debts due by the partnership; and for all matters not admitted in his answer he requires strict proof.</p> <p>In June, 1874, the court referred the cause to a commissioner to enquire, 1st. Whether a partnership between the said parties was ever formed; and if formed, when entered into, what the scope, purposes and powers of said partnership, and when terminated. 2d. To state, settle and adjust, a full and complete account of the actings and doings of the said partnership, showing what the input capital was,, by whom advanced, when advanced, and how used and invested. 3d. Should said settlement of accounts show profits, that said profit be apportioned according to the rights of the partners, and if loss resulted from the venture,, that said losses be distributed according to the terms of the partnership.</p> <p>The commissioner made his report in February, 1876. In this report he fixed the termination of - the partnership-in February, 1860; the amount of outstanding debts yet due by the partnership on the 3d of January, 1860, at $5,960.74. He also states the losses of the partnership at $16,265.33, with interest on $9,600. Of this there was a loss of $8,000 on cattle sold on a credit and lost by the results of the war. He also states what each of the partners had paid and received, and for what each is liable to the creditors of the partnership, and to the others to equalize their burdens.</p> <p>The plaintiff excepted to the report fixing the time of the termination of the partnership; and the court sustained this •exception.</p> <p>The defendant Jordan filed fourteen exceptions to the report. Several of them refer to the insufficiency of the •evidence to support items of the account, or indeed any account. He insisted that a debt reported as due to John T. Fletcher was not the debt of the partnership, but was the debt of the plaintiff and the other members of the firm who had given their bond to Fletcher for the debt. And he insisted further, as to this debt and others, and as to the loss of the $8,000 by the results of the war, that the several partners had made contracts with Fletcher and others by which they sold to them the cattle of the partnership upon a guarantee that if after keeping'them until the next fall they did not sell them at a certain profit named, the vendor would make it up or take back the cattle and pay for the keeping of them. And this he insisted the said partners had no authority to do.</p> <p>In March, 1870, after the commissioner had returned his report, Jordan filed the plea of the statute of limitations.</p> <p>The cause came on to be heard on the 20th of March, 1878, when the court overruled all the exceptions of the defendant Jordan to the report of the commissioner, and decreed as follows:</p> <p>“And it appearing to the satisfaction of the court, from the statements made upon pages twelve and sixteen of the said report, that the firm of Brown, Miller & Jordan are bound and pressed for the following debts, which constitute the entire unpaid debts of the said firm—to-wit: the sum of nineteen hundred and fourteen dollars and thirty cents, with interest on $1,155.69, from the 10th of August, 1871, to Johnson & Hall; six hundred and fifty dollars and eighty-seven cents, with interest from the 10th of August,, 1871, on $649.58, to Davis & Williams; thirty-three hundred and ninety-five dollars and fifty-seven cents, with interest from the 10th day of August, 1871, on $2,409.51, to J. T. Fletcher; and that, after properly charging and crediting each one of the said firm, that the sums to be contributed by the members of the said firm will be as follows : By B. F. Miller, $409.12; by John Miller, $1,695.31; by Eastham Jordan, $3,611.93; with interest on each of the said sums, from the 10th day of August, 1871.</p> <p>“And it further appearing to the court, from the statement upon page 15 of said original report, that Eastham Jordan, after being charged with above stated pro rata of the debts, is still indebted to the firm in further sum of $244.38, with interest from the 10th of August, 1871, the court doth adjudge, order and decree, that the said B. F. Miller, John Miller, and Eastham Jordan do pay to E. T. Jones, who is hereby appointed a receiver for the purpose of collecting the same, the above mentioned pro rata share of the indebtedness of the said firm; and that Eastham Jordan do likewise pay to the said receiver the sum of $162.92, two-thirds of the said sum of $244.38, with interest as aforesaid; and the court doth further order the said receiver to deposit the sums collected by Mm to the credit of this cause in the First National Bank at Alexandria.</p> <p>“The clerk of this court is ordered, when required by the said receiver, to issue executions against the said parties in favor of said receiver for the sums which they are herein ordered to pay.</p> <p>“ Before receiving any money under this decree, the said receiver is ordered to execute, before the clerk, bond in the penalty of $10,000, conditioned as required by law, with approved security.</p> <p>“ The said receiver is ordered to report to this court any collections made by him for its further action.”</p> <p>And thereupon Jordan applied to a judge of this court for an appeal and supersedeas; which was awarded. The facts are stated hy Judge Anderson, in his opinion.</p>

TMs was an appeal of the Merchants Bank of Baltimore and a number of others, creditors of Samuel A. Burracker, from decrees of the circuit court of Page county, made in a creditor’s suit pending in said court. The only questions involved in this appeal relate to the sale under the decree of the court of a tract of land called the Cave Tract, which which was purchased by the appellees. The case is stated by Judge Christian in his opinion.

<p>1. Though a plaintiff in his hill may disclaim the benefit of a discovery, he cannot thereby deprive the defendant of the right to answer on oath, and have the advantage of such answer as evidence in his favor so far as it is responsive to the bill. The case provided for by statute (Code of ' 1873, ch. 137, § 12) is exceptional.</p> <p>2. The answer of a defendant which does not profess to be on his own knowledge, can only he treated as a plea of denial, and not as evidence in his behalf.</p> <p>3. Although an answer responsive to the bill must be taken as true unless disproved by more than the testimony of one witness, this may be done not only by the testimony of two witnesses, but by one with corroborating circumstances, or by corroborating circumstances alone, or by documentary evidence alone.</p> <p>4. A party participating with a trustee in a misappropriation of the trust fund is liable jointly and severally for the fund so misappropriated. And in this case held, upon the evidence, that there was such participation.</p>

<p>1. Where process in an action of debt was served upon a defendant whilst he was in the military service of the Confederate States, and there is an office judgment confirmed whilst he is in the service, the judgment is a valid judgment and cannot be questioned in another suit.</p> <p>2. The judgment is not void though no declaration was filed in the cause, and can only be avoided by the proper proceedings taken in due season in the court which rendered the judgment.</p> <p>3. If, upon proceedings in the county court which rendered the judgment to set it aside, that court sustains the motion, and upon writ of error to the circuit court the judgment of the county court is reversed, and the motion dismissed, and there is no appeal, the judgment of the circuit court is conclusive in favor of the original judgment upon all other courts.</p> <p>4. A bill to set aside a judgment on the ground of usury, simply says the debt was usurious, without stating the usurious interest taken ; the defendant denies the usury and the charge of usury is not sustained by competent evidence; the court will not, after long delay, set aside the judgment and grant a new trial.</p>

<p>1. Where process was served upon a defendant in an action of debt, on the day on which he was convicted of a felony, but before the conviction had taken place, and in that action a judgment by default was obtained, against the defendant while' he was confined in the penitentiary, the court having fairly acquired jurisdiction of the cause, the doctrine of relation does not apply so as to override and avoid the process.</p> <p>2. Under such circumstances, the utmost that could have been exacted of the plaintiff was a suspension of all proceedings until the disability was removed, or the appointment of a committee to defend the suit for the convict; and although neither course was pursued, the judgment is not void, but voidable, and cannot be assailed collaterally in a court of equity, or elsewhere.</p> <p>3. Where a court has fairly acquired jurisdiction of a cause and the parties, that jurisdiction continues, notwithstanding the subsequent disability of the defendant.</p> <p>4. Whether a judgment be the act of the court, or be entered up by the clerk under the statute, the effect is the same; in either case it is the act of the law, and until reversed by the court which rendered it, or by a superior tribunal, it imports absolute verity, and is as effectual and binding as if pronounced upon a trial on its merits.</p> <p>3. As a generai rule, the law does not regard fractions of a day ; but this rule is departed from in many cases where the purposes of justice require it. Courts would be very slow to decide that a man by a fiction of law is to be considered a felon before the conviction has actually taken place.</p> <p>3. When a suit in equity is brought by a judgment creditor to enforce his lien against the land of his debtor, and persons claiming to be purchasers of the debtor’s land complain that they were not made parties to that suit, their remedy, if they have notice of the suit, is by motion or petition to be made parties defendant thereto, and not by an independent suit to set aside the decree in the other cause, upon the principal ground that the judgment therein sought to be enforced was itself void.</p>

<p>This was a suit iu equity in the circuit court of Greene county, brought by J. G. E. Davis and others, trustees of the Greene Humane Society, to enforce a deed of trust made by Bobert Pritchett, dated the 17th of January, 1859, by which he conveyed to John Graves his intest in the La Fayette hotel property, in the town of Stanardsville, to secure a debt of $678.37, which said Pritchett had borrowed from the Greene Humane Society. The defendants were Wyatt S. Beazley, in his own right and as administrator of Bobert L. Pritchett and Elizabeth his wife, who had been the wife of Bobert L. Pritchett, and the other heirs of said Bobert L. Pritchett, deceased.</p> <p>It appears that Bobert Pritchett and his son Bobert L„ Pritchett were the joint and equal owners of the said hotel property, and Robert Pritchett was the clerk of the county court. In September, 1855, a deed was prepared by which Robert Pritchett and Laura Pritchett, his wife, conveyed to Robert L. Pritchett all interest and title they have in the tavern house and lot now in possession of said Robert L. Pritchett. This deed is only signed by Robert Pritchett, and there is a certificate in the name of Arthur Stephens, notary public, of the privy examination and acknowledgment of Laura Pritchett; but it is not signed by the notary. And there is an endorsement on the paper in the handwriting of Robert Pritchett, as follows : “1855, September 13th; filed and acknowledged in office by Robert Pritchett, a party thereto.”</p> <p>Robert Pritchett died in 1863, and some time after his death this deed was found among his papers, and delivered to "Wyatt S. Beazley, who was then the clerk of the county court of Greene, and had married the widow of Robert L. Pritchett; and he upon the said acknowledgment entered it upon the record.</p> <p>By deed dated the 17th of January, 1859, Robert Pritchett conveyed to John Graves, the said tavern property in trust to secure a debt of $678.37, due to the Greene Humane Society; and the certificate of acknowledgment is as follows : “In Greene county court clerk’s office, 17th January, 1859.</p> <p>“ This deed was this day filed and acknowledged in office by Robert Pritchett.”</p> <p>The cause came on to be heard on the 13th of June, 1877, when the court dismissed the bill with costs. And the plaintiff obtained an appeal.</p>

<p>1. A railroad company may be supplied with the best engines and the most approved apparatus for preventing the emission of sparks, and operated by the most skillful engineers; it may do all that skill and science can suggest in the management of its locomotives; and still it may be guilty of gross negligence in allowing the accumulation of dangerously combustible matter along its track, easily to be ignited by its furnaces, and thence communicated to the property of adjacent proprietors.</p> <p>2. If a railroad company allows the accumulation of inflammable matter upon the line of its track, and it is set on fire by sparks or coals from its engine, and the fire extends to and injures the property of adjacent proprietors, and a jury determines, under all the circumstances, that the railroad company is liable for the injury done by the fire to the property of an adjoining proprietor, they being the proper body to determine the question of negligence, the appellate court will not reverse their judgment unless there is a plain deviation from the evidence, or it is palpable the jury have not drawn a correct inference from the facts.</p> <p>3. Ho obligation rests upon the owners of property along the line of a railway to keep it in a condition to be always safe from the fires thrown from passing engines. They are not bound to remove combustible material on their own land in order to obviate the consequences of possible or even probable negligence of the cempauy. And in such eases there cannot be contributory negligence on the part of the owner of the property destroyed.</p> <p>4. An instruction given on the motion of the defendant, and not objected to by the plaintiff, though erroneous, cannot be objected to in the appellate court; but if the jury, in opposition to the instruction, find a verdiet for the plaintiff, and that verdict is correct upon the evidence, the appellate court will not reverse the judgment entered upon it.</p>

<p>This case was argued at Richmond but decided at Wythewille. It was an appeal from a decree of the chancery court of the city of Richmond in a suit brought by C. B. Maury, a policyholder and creditor of the Piedmont and Arlington Life Insurance Company, against the said company and A. R. Blakey, trustee. Two petitions were filed, one at rules by J. C. Miller and others, and the other in court at the succeeding term by J. Bussey and others, in both of which the petitioners stated their respective cases and prayed to be admitted as parties plaintiff in the cause. At the time the petition of Bussey was presented, but before any order whatever had been made in the cause, Maury moved to dismiss his suit, which motion was resisted by the petitioners, but was allowed by the court, and from this order the company and the petitioners appealed.</p>

<p>'On the 15th of August, 1879, W. C. Pendleton, trustee for his mother, Mrs. N. T. Pendleton, and in his own right, presented to the judge of the circuit court of Washington ■county a bill praying an injunction against Thomas S. Pruner, James Hubbles and others to restrain them from using a slaughter-house which had been erected in the neighborhood of the plaintiffs’ residence in the town of Marion, and which, it was alleged, constituted an intolerable nuisance to themselves and families. An injunction was awarded, not to prevent the defendants from slaughtering their stock, but in effect requiring them so to conduct their business as to avoid the creation of a nuisance, with liberty to the plaintiffs, if the injunction were not observed, to move for its extension to the restraint of slaughtering at all in said house.</p> <p>Pruner & Hubbles answered the bill and denied its material allegations. Twenty-one depositions were taken on the part of the plaintiffs and thirty-six on the part of the defendants. On the 13th of October, 1879, the cause came on to be heard upon the motion of the plaintiffs and on affidavits filed by the parties, and it appearing to the^ court that Pruner & Hubbles had used every practicable \ effort to prevent inconvenience to the plaintiffs from the use of the said slaughter-house, but that disagreeable odors, unpleasant sights and noises were unavoidably incident to the use of the slaughter-house, it was decreed that the injunction theretofore awarded be continued in force until on and after December 1st next ensuing, and that afterwards the defendants be wholly restrained, etc. From this decree and the preceding order an appeal and supersedeas were awarded by a judge of this court.</p>

<p>1. LHT and his brothers J B T and TMT held real and personal property in common, and also owed joint and individual debts. An agreement was made by L H T of the one part, and J B T and T M T of the other part, whereby, for considerations therein mentioned, the said J B T and TMT bound themselves “ to pay all the debts due from the said L H T, J B T and TMT, together with any sum that may be in arrear towards the purchase money of the Poston place, or may be recovered against them by the widow and heirs of H. D. Poston, so as to leave the said LHT free from debt and litigation.” Held : In the interpretation of written contracts, every part of the writing must be made, if possible, to take effect, and every word of it must be made to operate in some shape or other; and when all other rules of construction fail, the words of the covenant must be construed most strongly against the covenantor. Here the covenant in substance is to make such payment as will leave LHT “ free from debt and litigation ”; and it is impossible to give effect to this language without construing the words as referring to all the debts of L H T, both individual and partnership.</p> <p>2. In a contest between the estates of L H T on the one side, and of J B T and T M T on the other, all of said persons being dead, M B T is not a competent witness to prove a claim in his own right against the estate of LHT, when the subject matter of the controversy involves directly transactions to which J B T and LHT were parties, and as to which they alone would be qualified to speak understandingly, and where, as in this case, the estates of J B T and TMT would be liable for the debt so attempted to be proved against the estate of L H T, and the objection of ineompetency may be taken by the representation of ’either J B TorTMT.</p> <p>3. L H T’s personal representatives having improperly abandoned their defence and confessed judgment in an action at law in favor of M B T, the estates of J B T and TMT cannot be held responsible for counsel fees in said action; for if the parties were justified in confessing judgment, they ought never to have employed counsel to defend them.</p> <p>4. It is well settled that where an entry Is offered in evidence upon the ground that it is against the interest of the declarant, it must be of a pecuniary or proprietary nature. The declaration in such cases derives its value exclusively from the fact that the person has made an entry or charge which it is against his interest to make, and the effect of which will be to render him pecuniarily liable to some third person.</p> <p>5. The rule of law which protects professional communications is for the benefit of the client, and there is no doubt he may waive it; but the waiver must be distinct and unequivocal.</p>

In August, 1878, Thomas Campbell filed his bill in the clerk’s office of the circuit court of Bedford county against B. C. Jones, Stephen B. Holland, William Graves, and the Bedford Savings Bank at Liberty, in which he alleged that about the year 1873 a partnership was formed between himself and said Jones, under the firm name of Jones & Campbell, for the purpose of sawing and selling lumber, and to that end they purchased of Mrs. Saunders and Mrs. Chalmers a tract of about…

<p>1. Where there are two administrators, their relations inter se are fiduciary and they may be held to account, each by the other, in a court of equity touching transactions between themselves connected with the administration of the trust. This equitable jurisdiction extends to cases of account between tenants in common, joint tenants, partners, and by analogy between executors and administrators, who have a joint and entire interest in the effects of the testator or intestate.</p> <p>2. In all cases in which an action of account would be the proper remedy at law, and in all cases where a trustee is a party, the jurisdiction of a court of equity is undoubted.</p> <p>3. If in the settlement of a joint administration, one executor or administrator gets credit with the estate for what another is entitled to receive, what he gets or is allowed him he holds as trustee for the latter, and may in equity be required to account fpr it.</p> <p>4. To support the objection of multifariousness, because the bill contains different causes of suit against the same person, two things must concur: first, the different grounds of suit must be wholly distinct; secondly, each ground must be sufficient as stated to sustain a bill.</p>

This was an action of ejectment brought in the circuit court of Patrick county in October, 1877, by Spencer F. Nowlin against Joseph Walker and John Walker, to recover a tract of land lying on Eussel’s creek, in said county. On the 3d of November following, William A. Burwell, on his motion, was admitted a party defendant in place of the Walkers. The parties waiving a jury, the cause was tried on the 30th of May, 1879, and judgment was rendered for the defendant.

This was an action of ejectment brought originally in the -county court of Wise county, in October, 1871, by Patrick Hagan against Henry Frazier, to recover a tract of land, described by metes and bounds, and damages for the detention thereof.

<p>1. A debtor possessed of a large tract of land conveys a part of the same by deed of gift to one of his sons, who thereafter sells it to another person for a valuable consideration. The father debtor, then, by subsequent deeds for value, executed at different time^, conveys nearly the whole of his said land to different purchasers. On proceedings to subject said land to the payment of a portion of the purchase money, for which the vendor to the debtor had retained his vendor’s lien&emdash;Held : The lands will be held liable in the inverse order of the alienations from the debtor, and this, too, although one of the alienees is a purchaser from the son of the debtor, who held under a voluntary conveyance from the debtor.</p> <p>2. Whilst under our statute a voluntary conveyance, without fraud, is void as to existing creditors, it is void only as to them, and is good as to all others. When, therefore, it is said that a purchaser, with notice, from a voluntary donee, stands in the shoes of such donee and can occupy no higher ground than he, all that is meant is, that he holds subject to the claims of the original donor’s creditors, to the same extent as the volunteer donee holds. Such a purchaser cannot be affected by subsequent alienations from the original donor, of which he had no notice, and against winch he could not provide.</p> <p>3. Upon asking leave to file a petition for a rehearing, or bill of review, on the ground of newly-discovered matter, the new matter must be so stated in the bill as to enable the court to see, on inspecting it, that if it had been brought forward it would probably have changed the character of the decree; and it must be so stated that the defendant can answer it understandingly, and thus present a direct issue to the court. It is not sufficient to say that the party asking the leave expects to prove certain facts. He must state the evidence distinctly on which he relies, and file affidavits of witnesses in support of his averments.</p>

<p>ideal estate is leased to a firm for the term of three years, to commence on the 1st of January, 1876. The lessees' purchase from the lessors and take possession of the furniture on the leased premises. On the 19th day of June, 187G, before the rent of that year becomes due, one of the firm executes a deed of trust on the furniture to secure to the lessors the payment of two certain notes and to indemnify the endorser on a certain ■other note, given for the furniture. The rent for the year 1876 was paid. The rent for 1877 was assigned to a third party, who levied a distress warrant upon the furniture on the leased premises for that year’s rent, which was in arrear. The endorser of the note aforesaid, on which judgment had been obtained against the maker and himself, paid off the said note, and filed his bill against the assignee of the note, the trustee in the ■deed of trust and others, claiming, among other things, that the trust •deed constituted a prior lien on the property to the rent for the year 1877, and praying an injunction to stop the sale of the property levied on until the rights of the parties could^ be determined, and for the appointment of a receiver, which was awarded. Held :</p> <p>1. That the lien of the deed of trust was created “ after the commencement of the tenancy ” under which the distress was made; that the tenancy of the two years (1876 and 1877) was the same.</p> <p>2. That the payment of the rent for the year 1876, was no discharge of the prior right of the lessors or their assignee to “one year’s rent,” within the meaning of the statute. Code of 1873, ch. 134, §§ 11, 12.</p> <p>3. That goods carried on the leased premises and incumbered “ after the commencement of the tenancy” are charged with a definite portion of the rent arising under the tenancy during the term, and not with the specific rent of any particular year or period of time.</p> <p>“ One year’s rent ” and “ a year’s rent ’’ are used in the statute to denote the amount of rent to be distrained for in the one ease and to be paid or secured in tlie other. And it matters not for what year it accrued, or whether it was before or after the creation of the lien, or whether or not other rents may have accrued after the lien was created and been paid by the tenants. As long as any rent arising under the tenancy remains unpaid by the persons liable therefor, as soon as it becomes due the person entitled to it may distrain the goods for an amount not exceeding the rent for a year.</p>

<p>Tliis case was argued at Wytheville, but decided at Staunton.</p> <p>At March rules, 1879, Bonsack & Kiser filed their declaration in the clerk’s office of the circuit court of Roanoke county, against the board of supervisors, in an action of covenant broken. The declaration alleged that on December 21, 1863, May 16, 1864, July 18, 1864, November 21,. 1864, and on divers other days, the county court of said county, by virtue of its general jurisdiction and of a certain act of the legislature of Virginia passed May 9, 1862, entitled “An act to authorize the county courts to purchase and distribute salt,” etc., and of divers other acts of the legislature passed before the day and year first aforesaid (a. majority of the justices of the county being present), entered several orders appointing R. G. Holland agent of said county for certain specified purposes, and authorizing him to borrow money for the use of the county for the purposes aforesaid, on the faith and credit of the county, to the amount of $80,000, and empowering him to execute for the money so borrowed from individuals the bonds and notes of the county payable in currency. That afterwards— to-wit: on the 21st of February, 1865—the said agent, acting under the authority aforesaid, borrowed from the plaintiffs $10,000, and thereupon executed and delivered to them five bonds of said county, dated the day and year last aforesaid, signed by said Holland as county agent, and sealed with the county seal, by each of which bonds the said county covenanted to pay to the plaintiffs $2,000, with four per cent, interest, twelve months after date, in current money; that the county had not kept its covenants, but had broken the same, and had not paid the said several sums of money or any part thereof, to the plaintiffs5 damage $10,000, etc.</p> <p>The defendant demurred generally to the declaration, .and also filed five pleas—viz: first, a plea of covenants not broken; second, a plea that the supposed bonds were executed for the purpose of aiding rebellion against the State of Virginia; third, a plea that they were executed for the purpose of aiding rebellion against the United States; fourth, a plea they were not the bonds of the county—“in this, that a majority of the acting justices of the county were not present and had not been summoned to appear at court when the bonds were directed to be executed55; and, fifth, a plea similar to the last one, with the additional averment that it was necessary a majority of said justices should be present' and be summoned to give legal authority for the execution of said bonds; and issue was joined on these pleas.</p> <p>The cause coming on to be tried on the 10th of April, 1880, the demurrer was overruled; and the case being thereupon submitted to the court on the facts agreed, the court was of opinion that the fifth plea was sustained, and that the second and third were not sustained, and judgment was rendered for the defendant with costs; and to this judgment a writ of error was granted by a judge of this court.</p>

<p>This is an appeal from a decree rendered by the circuit' court of Rockingham county in a chancery cause pending therein, in which Mary Jane Paul was complainant, and the First National Bank of Harrisonburg and others were defendants.</p> <p>By deed dated July 1, 1865, A. M. Newman and wife conveyed to Isaac Paul a tract of land near Harrisonburg, Va., containing about 308 acres, retaining a lien to secure a part <of the purchase money, evidenced by the bond of said Paul for $7,837.50. This deed was admitted to record in the clerk’s office of Rockingham county court on December 14, 1865. On January 19, 1869, a portion'of said land, consisting of about 249 acres, was sold and conveyed to William I. and Robert C. Paul, who were the sons of Isaac Paul, in consideration of $18,000, of which the sum of $8,000 was to be paid on January 19, 1874, the sum of $8,000 on January 19, 1875, and the sum of $2,000 on July 19, 1875—said sums bearing interest, payable annually, and for which William I. and Robert C. Paul gave their bonds to Isaac Paul, a lien therefor being retained in the deed on the property conveyed. The deed commences as follows:</p> <p>“This deed, made this 19th day of Jan’y, in the year 1869, between Isaac Paul and Mary Jane, his wife, of the first part”; and it concludes as follows: “Witness the following signatures and seals.</p> <p>“ Isaac Paul. [Seal.]</p> <p>“ Mart Jane Paul. [Seal.]”</p> <p>The certificate of acknowledgment is in the following words and figures—to-wit:</p> <p>“State of Virginia—</p> <p>Rockingham county—to-wit:</p> <p>“We, justices of the peace for the county aforesaid, in the State of Virginia, do certify that Mary Jane Paul, the wife of Isaac Paul, whose names are signed to the writing hereto annexed, bearing date on the 19th day of January, 1869, personally appeared before us, in the county aforesaid, and being examinéd by us privily and apart from her husband, and having the writing aforesaid fully explained to her, she, the said Mary Jane Paul, acknowledged the said writing to be her act, and declared that she had willingly executed the same, and does not wish to retract it.</p> <p>“Given under our hands, this - day of January, Anno Domini 1869.</p> <p>“ Clerk’s office, county court of Rockingham, Jan’y 19th, 1869:</p> <p>“This deed from Isaac Paul and Mary Jane, his wife, to William I. Paul and Robert C. Paul, was this day presented and acknowledged in tke office aforesaid, by tke said Isaac Paul and wife (ske being also privily examined before me, clerk of said court), and admitted to reoord.</p> <p>“ Teste:</p> <p>“R. A. Gray, C. R. C.”</p> <p>Tke lien for §7,837.50, evidenced by tke bond of Isaac Paul, retained in tke deed of Newman and wife to kim, was subsequently satisfied, in tke lifetime of Isaac Paul, by a sale to Mrs. Emma E. Effinger of tke Mansion House and a part of tke'original Newman tract of 308 acres otker tkan tke 249 acres conveyed as aforesaid to kis sons. Vm. I. and Robt. C. Paul, by tkeir deed of May 5, 1870, conveyed to William Walscke and Jokn Kenney, Jr., a part of said 249 acres, consisting of five acres, wko afterwards by tkeir deed of December 1, 1874, conveyed said five acres to tke Eirst National Bank of Harrisonburg. Tke bonds of Wm. I. and Robt. C. Paul to Isaac Paul kaving been transferred by tke latter to said bank, and tke obligors kaving failed to pay tke interest tkereon, tke bank instituted a ckancery suit in tke county court of Rockingkam in tke name of Isaac Paul for tke use of said bank against tke obligors to sell tke said land in order to satisfy said bonds, and in tke progress of tkis cause 244 acres of tke said land were purckased at a commissioner’s sale by tke said bank, and a deed tkerefor executed and delivered by a commissioner of said court under- its decree.</p> <p>Isaac Paul died on October 28, 1879, leaving Mary Jane Paul kis widow, tken in ker 61st year; and on Marck 17, 1880, ske brougkt ker suit in tke circuit court of Rockingkam against tke said bank, and Jacob L. Sibert, Francis Staling, and Isaac Bilkimer (to wkom tke bill alleges tkat tke bank kad sold tke said land in different parcels and put tkem in possession tkereof, tkougk no deeds kad as yet been executed), claiming tkat ske did not join ker kúsband in the deed of January 19,1869, conveying the 249 acres, as required by law, to transfer or extinguish her right of dower in the lands conveyed by said deed from Isaac Paul to ¥m. I. and Robt. C. Paul, and that by reason thereof and of the facts before stated she was entitled under and by virtue of the statutes in such cases made and provided to have her dower assigned to her in the whole tract of 249 acres. The prayer of the bill is that her dower in said land may be assigned to her, in lieu of which, however, the plaintiff declares her willingness to accept its commuted value in money.</p> <p>On June 18, 1880, the said cause having been regularly matured and set for hearing as to all the defendants, the said- bank moved before the circuit court of Rockingham to file its answer to said bill, which answer was then lodged with the papers in the suit; but the plaintiff excepted to the filing thereof, on the ground that the defendant thereby sought to supply by parol testimony what should appear on the record and was only provable by the record; and the court sustained the exception and rejected the answer. In this answer the bank insisted that the plaintiff had united with her husband in said deed to their two sons and acknowledged the same in the manner prescribed by law for married women, and thereby relinquished her right of dower; and that respondent was informed, and believed, that when said deed was made she appeared in person in said clerk’s office, and then and there, after she and her husband had both signed the deed, was examined by the clerk of the county court of Rockingham privily and apart from her husband, and had the deed fully explained to her, and that she then and there acknowledged it to be her act, and declared that she had willingly executed the same and did not wish to retract it; and thereupon, after it had also been acknowledged by her husband, it was duly recorded as to both, as appeared from the “register of deeds” required by § 10, oh. 117, Code 1873; and that by some oversight, or through accident or mistake, the certificate of the clerk, when the deed and acknowledgment was spread upon the records, failed to set forth all the facts herein set forth, and that the copy filed with the bill shows only what was written out by the copyist who transcribed the deed and endorsement into the deed-book, from which said copy had been taken; so that through accident or mistake alone the endorsement or statement, as it appears at the bottom of said exhibit, does not set forth the facts which the complainant herself will not dare to deny. It was also insisted that the plaintiff’s claim to dower under such circumstances was inequitable and unjust, and rested upon a mere technicality ; that the deed had been made to her own sons, and that she intended to give them a good title; that the proceeds of the discount of their bonds had been used by Isaac Paul, or rather by the firm of Isaac Paul & Sons, composed of the father and his two sons aforesaid, in their business, out of which business the family of Isaac Paul, including the plaintiff, had been supported not only in comfort but in some degree of luxury; and that it was only after the land had passed out of the hands of these sons, and after theii* insolvency and that of their father, and the recovery of her dower had thus become a matter of no moment to them, that the plaintiff asserted her pretended claim of dower.</p> <p>Upon the rejection of said answer by the court, the bank offered to file a supplemental and amended answer, in which it was stated that since offering the former answer the bank had applied to Kobert A. Gray, who was the clerk on January 19, 1869, to make a full record of his action in connection with the taking by him of the plaintiff’s said privy examination and acknowledgment to said deed, and that said Gray had made such full record as of the date of such former certificate, and that said deed, together with such full record, had been again recorded—to-wit: on June 17, 1880—by Joseph T. Logan, the then clerk; and an attested copy of said deed and record was exhibited with the said amended answer. But the plaintiff excepted to the filing thereof on the ground that B. A. Gray’s term of office having expired, he had no power or authority to amend the records of said court, and that the amendment of the certificate of acknowledgment to said deed was made without the solemnity of an oath or other valid evidence of the truth of the facts certified therein, and was therefore more objectionable than the attempt to supply the defects in the certificate of acknowledgment to said deed by parol testimony ; and the court sustained likewise this exception, and rejected also said supplemental and amended answer. The attested copy of said deed and record exhibited with the last answer contained, besides the certificate of acknowledgment already shown in -this statement, another and full certificate, dated January 19, 1869, to the effect that all the requisites of the statute in reference to the privy examination and acknowledgment by married women, had been complied with.</p> <p>The court, after rejecting said answers by its decree of June 18,1880, further decreed that said Mary J. Paul should recover her dower in said land, and referred the cause to a commissioner to ascertain one-third of the value of the land at the time of her husband’s death, deducting the value of such permanent improvements then existing as may have been made (after the alienation) by the alienees of said Isaac Paul or his assignees; and also to ascertain the commuted value of plaintiff’s dower in said land, the bank electing to pay the same so as to perfect the title of its vendees to whom it sold the land with general warranty, and the plaintiff agreeing to accept commutation. Prom this decree the said bank applied for an appeal and supersedeas ; which were allowed.</p>

<p>A vendor of real estate reserved in the deed of conveyance a lien for the purchase money to be paid in five years, and a negotiable note was made by the vendee for the amount also payable in five years, but the note was not referred to in the deed. Shortly afterwards the vendor endorsed and transferred the note to a bank in discharge of an antecedent debt. After the note had been so transferred, the same vendor contracted to sell the same property to a third party, who paid the purchase money and thereupon took from the first vendee a conveyance of the property. The second vendee was wholly ignorant of the existence of the outstanding negotiable note and of any claim on the part of the bank to the purchase money. Held : That the second vendee took the property unaffected by anjr lien in favor of the holder of the note.</p>

<p>On tke 5tk of April, 1875, 'William A. Wilson filed his-kill in tke clerk’s office of tke circuit court of Rockbridge county, against David Firebaugk, Watson Almond, R. D. Firebaugk, trustee; Jane E. Firebaugk, wife of David Firebaugk; Mason & Goock, partners; and James W. Frazier, in wkick ke alleged tkat in October, 1861, David Firebaugk qualified as tke executor of H. A. Firebaugk, deceased, and tkat tke plaintiff and B. F. Firebaugk became tke sureties on kis bond in tke penalty of $15,000; tkat tke said executor, in a suit brougkt by kimself for tke purpose of settling kis accounts, was found indebted to kis testator’s estate intke sum of $1,943.64, witk interest from April 1, 1871, for wkick amount-a decree was entered against tke said executor on tke lOtk of April, 1871, and against tke plaintiff,, kis surety, on tke 20th of February, 1875; tkat tke said executor was totally insolvent and kad paid no part of said decree, but kad fraudulently concealed and covered up alibis personal property witk tke clear intent of avoiding tke payment of said decree, and throwing tke wkole burden thereof upon tke plaintiff; tkat on tke 15th of May, 1871,, the said executor, in consideration of the payment of two executions against him in favor of the United States, amounting to $1,145.22, conveyed to Mason & Gooch a large amount of valuable personal property, of which, by a written agreement between the parties, the said executor was authorized to retain possession until demanded by Mason & Gooch, and the conveyance and agreement were both recorded; that on the 7th of August, 1872, the said Mason & Gooch, by deed duly recorded, conveyed the same personal property to E. D. Firebaugh, trustee for Jane E., the wife of the said David Firebaugh, in consideration of $1,230.31, alleged to have been paid by the said E. D. Firebaugh to Mason & Gooch. It was charged that the said deed of trust was wholly fraudulent and void, and that the alleged consideration passed from David Firebaugh and not from E. D. Firebaugh; that the trust resulted to the said David; that the property was still his, and liable to the lien of the fi. fa., issued on the said decree against him. The plaintiff stated that he had already paid a considerable part of said decree to J. G. Steele, the receiver of the court, in whose favor the decree was rendered. It was further shown, that in February, 1873, the said David Firebaugh filed his petition in bankruptcy; but it was charged that his schedules were false and fraudulent, in failing to surrender any of his personal property, some of which was enumerated in the bill of sale and deed of trust aforesaid; that he failed to give in a tract of 6-J acres of land, which he sold in December, 1873, to James W. Frazier for $300, and also failed to give in another tract, called the Snider farm, which the plaintiff insisted he still owned. It was further shown, that on the 20th of June, 1867, the said David Firebaugh became the purchaser from the commissioner of sale, in the suit of D. Snider v. John Snider’s heirs, of a valuable tract of land known as the Snider farm, at the price of $9,051; that he made the cash payment of $142.51, and paid the further sum of $4,444.85 at differant times, when, failing to make further payments, the farm was decreed to be resold on the 3d of January, 1872, and Watson Almond became the purchaser for $5,600, paying the cash payment of $152.66, and executing three bonds for $1,815.78 each, payable at one, two, and three years. The bill charged that before the said sale was consummated, it was agreed, whether formally or otherwise, between the said David Firebaugh and Watson Almond that the latter should be only a nominal purchaser for the benefit of the former, the said David Firebaugh undertaking to make the cash payment and to pay the several bonds of Almond as they matured; and when the whole purchase money was paid, Almond was to cause the property to be conveyed as Firebaugh might direct. It was further insisted, that the said sale of 6|- acres to James W. Frazier, being made after Firebaugh’s bankruptcy, the land not being included in his schedule, was fraudulent; that the bonds taken were not made payable to any one, lest the fraud might be exposed, and that the decree against the said executor was a lien on said land. It was further shown, that the executor, in order to conceal his fraud in the transaction with Almond, entered into a formal written lease of the Snider farm from him, for a term of four years, at an annual rent of $600, which lease was charged to be pretended and false, and designed to protect Firebaugh from his creditors. The prayer of the bill, after requiring answers from the defendants, was, that David Firebaugh and Almond might produce their agreement as to the purchase of the Snider farm; that the deed of trust from Mason & Gooch to E. D. Firebaugh, trustee, might be set aside as fraudulent and void, and that the property thereby conveyed subjected to the lien of the execution issued upon the said decree, and that the lien of the decree might be enforced against the said 6f acres of land, and the interest of the said David Firebaugh in the Snider farm, and for general relief.</p> <p>At September rules, 1875, David Firebaugh and Watson Almond demurred to the bill for multifariousness, and the demurrer being overruled, they filed their answer, in which, after admitting certain allegations of the bill, they went on to say that it was not averred therein, nor did it otherwise appear, that the plaintiff had paid the said decree or any part thereof, and it was insisted that until he had shown this he had no right to institute the suit. It was further stated that the transactions between Mason & Gooch and the respondent, D. Firebaugh, were matters of record, some of which were -exhibited with the bill; that the papers showed that the property of the respondent had been levied upon by the United States marshal to satisfy two executions in his hands, which were first liens thereon; that a forthcoming bond had been taken and forfeited, and when the officer was about to proceed to enforce payment, the arrangement with Mason & Gooch was entered into fairly and openly, and to save the property from sacrifice, which property was transferred to secure Mason & Gooch the money advanced by them to pay off the executions. It was denied that any fraud had been committed by any of the parties concerned, and the answer then proceeded to set forth what had become of the property in question, some of which was used, some destroyed, and the residue surrendered by the respondent when he filed his petition in bankruptcy in February, 1873. The answer further showed that the respondent surrendered several tracts of land, including the tract of 6|- acres, which had been sold to Frazier. The homestead asked for embraced a tract of 66 acres and the tract sold to Frazier, the former of which was then occupied by the respondent and the latter by Frazier. The Snider tract was not included in the schedule, because the respondent did not own it, for having proved unable to pay for it, it was, upon a decree of resale, purchased by Watson Almond on the 3d of January, 1872, for $5,600, some-tiling less than the balance still due upon it; and it was insisted that Almond was a bona fide purchaser, and had fully paid for the land out of his own means. It was denied that there was either an oral or a written contract that-Almond should be a nominal purchaser for the benefit of D. Firebaugh, or that when the latter had paid the cash payment and the bonds given for the purchase money by Almond, he was to cause such conveyance to be made as D. Firebaugh should direct; but it was admitted that after the sale an agreement for a lease for four years of the farm was entered into by these parties at a yearly rent of $600, which agreement was recorded in the clerk’s office of said county in January, 1872. It was further insisted that the only money paid by D. Firebaugh to Almond was in satisfaction of the rent contract and $349.42 for cattle bought from him, which latter sum was paid to Steele by Almond’s direction in the fall of 1872, and no money was paid under any other contract, verbal or written. It was further insisted that if the notes were not payable to any one, as charged in the bill, Frazier was equally guilty of the fraud,, if any were intended, but it was denied that the fact justified such an inference.</p> <p>Almond, in his part of the answer, said he knew nothing of the suit between his co-defendant and H. A. Firebaugh’s^ legatees, or of the transactions with Mason & Gooch, or of the said bankruptcy proceedings, or the sale of 6|- acres of land to Frazier. But he believed that D. Firebaugh in June, 1867, became the purchaser of the Snider farm under a decree of court, at the price of $9,051; that he paid the cash payment and further sums from time to time, amounting in all to $4,587.36; and that, being unable to make the other payments, the farm was resold and the respondent Almond became the purchaser for $5,600, made the cash payment and executed three bonds as stated in the bill. Respondent further said that he had paid the cash payrnent, the first bond, and nearly all of the second, from his own means exclusively, but denied that he was a nominal purchaser for the benefit of D. Firebaugh, and that any contract was made between him and the respondent by which Firebaugh should pay the cash payment and the bonds as-they matured and when the whole purchase money was paid, direct a conveyance from the respondent.</p> <p>James W. Frazier also answered, and said that in December, 1873, David Firebaugh sold him a tract of 6f acres of land for §300, whereupon the respondent executed two bonds of §150 each, payable on the first days of January, 1874 and 1875, which bonds were drawn by David Firebaugh, and the first had been paid. Firebaugh informed the respondent that he was about to apply for the benefit of the bankrupt act and would have the said tract assigned as his homestead, so that he could then make a deed for it. He afterwards informed the respondent that he had forgotten to surrender the said tract; but claimed the purchase- and stated that he could and would make a good deed. An agreement was drawn up by Firebaugh for the sale of the land, but he would not sign it, nor make the bonds payable to himself, as he did not wish the bankrupt court to know the amount he was to receive for the land. Firebaugh had made repeated demands for the balance of the purchase money, but the respondent having an unsettled account against him, and being informed that he could not safely pay the same, or receive a good deed from Firebaugh, had refused to pay the said balance.</p> <p>S. D. Gooch, answering for Mason & Gooch, said that a large amount of personal property had been conveyed to. them by David Firebaugh, in consideration of their paying to the United States marshal the amount of two executions against him; that the said debt, principal and interest, was paid to them in full, partly in corn, oats, flour, beef, &c., and the balance in money. The respondents could not say by whom the grain and provender were delivered, whether hy E. D. Firebaugh or David Firebaugh, but upon a settlement with the latter and the payment of the whole debt, he directed the respondents in releasing the property to convey it to E. D. Firebaugh as trustee for the wife of David Firebaugh. The respondents did not know E. D. Firebaugh in the transaction, but upon the settlement with David Firebaugh, they conveyed the property as he directed; they, like the other respondents, denied fraud, combination, etc.</p> <p>The cause coming on to be further heard on the 13th of March, 1878, on the bill, the said answers, the depositions of witnesses and exhibits filed, the court decreed that the following accounts be taked: 1st. An account of the decree in the bill mentioned as rendered against the plaintiff, how much had been paid thereon and how much remained unpaid; 2d. An account of the real estate subject to the lien of said decree and of its fee simple and annual value; 3d-An account of the property conveyed by David Firebaugh to Mason & Gooch, and by them conveyed to E. D. Firebaugh, trustee, how it had been disposed of and how much remains in existence and liable to the execution issued on said decree; and 4th. An account of the purchase money of the Snider farm, how much had been paid and how much remained unpaid; and the commissioner was directed to ascertain how much of said money was paid by Watson Almond out of his own means and how much out of the means of David Firebaugh; how much was paid out of the property conveyed to Mason & Gooch and by them to E. D. Firebaugh, trustee, and how much was paid out of the crops raised on the Snider farm.</p> <p>The commissioner, after examining numerous witnesses for the plaintiff and defendants, reported as follows, on the 17th of January, 1879: That the amount of the said decree against David Firebaugh and the plaintiff W. A. Wilson was §1,943.64, which, with the interest, amounted to §2,857.15 in February, 1879, and had been fully paid by the said W. A. Wilson; that the Snider farm, containing 236 acres, was of the fee simple value of §5,600, and of the annual value of §200; that although Watson Almond was the nominal purchaser of this tract of land on the 3d of January, 1872, the evidence pointed irresistibly to the conclusion that David Firebaugh was the beneficiary of the purchase, and that he had provided the purchase money so far as it had been paid. As to the property conveyed to Mason & Gooch by David Firebaugh, and afterwards by them to E. D. Firebaugh, trustee, the only portion that could be traced was the item of forty hogs, the proceeds of which were paid to said D. Firebaugh, and by him applied towards paying for the Snider farm, the balance of the purchase for which, with interest and costs, amounted, on the 1st of February, 1879, to §1,211.96; and that the aggregate amount which the commissioner considered as proved beyond question to have been paid by D. Firebaugh out of his private means for the said farm, was §2,450, however the fact might be as to the residue concerning which the evidence was not so conclusive.</p> <p>Almond excepted to this report: 1st. Because there was not the slightest proof that W. A. Wilson had ever paid any portion of the amount decreed against him as surety for D. Firebaugh; and 2d. Because the commissioner based his conclusions on the impressions or heresay of certain witnesses, and not upon the evidence of facts; and it was suggested by counsel for Almond that an issue out of chancery would be the most proper means of a correct solution of the controversy.</p> <p>On the 12th of March, 1879, the cause came on to be further heard on the report of the commissioner and the exceptions thereto; whereupon the court, without passing upon the report or considering the exceptions, decreed that a jury be empanelled to try the issues, which are indicated by the following findings of the jury: 1st. That the Snider farm was on the 3d of January, 1872, in fact bought by the said D. Firebaugh, and that the purchase in the name of Watson Almond was merely a fraudulent device to cover up the transaction; and, 2d. That payments aggregating $3,239.05 were made by D. Firebaugh, or by Watson Almond, out of the means of said Firebaugh, on account of the purchase money of the said farm.</p> <p>On the 25th of October, 1879, the cause came on to be further heard; whereupon, Watson Almond moved the court to set aside the findings of the jury and grant a retrial, on the ground that the findings were not sustained by the evidence; which motion the court overruled, being of opinion that there was a heavy preponderance of evidence in favor of the findings, to which ruling of the court the defendant Almond excepted. And afterwards such further proceedings were had that on the 16th of October, 1880, it ■appearing from the commissioner’s report that the plaintiff had paid as security for David Firebaugh, executor of H. A. Firebaugh, deceased, the sum of $3,105.74, as of April 1st, 1880, of which the sum of $2,433.72 was principal, and that D. Firebaugh had paid $4,399.93, principal and interest, on the Snider farm, the court decreed that unless David Firebaugh, Watson Almond, or some one for them, should, within sixty days from the adjournment of the court, pay to the plaintiff the sum of $3,105.74 with interest and costs, the Snider farm should be sold at public auction by commissioners appointed for the purpose.</p> <p>From this decree Watson Almond obtained a decree and supersedeas from a judge of this court.</p>

On the 20th of March, 1879, Samuel It. Allebaugh, late sheriff of Rockingham county, served a notice on R. G. Coakley, his late deputy, and James C. Heltzel, Franklin Whitmer and Ephriam Wenger, surviving sureties of the said deputy upon his bond executed on the 20th of December, 1866, stating that the said Allebaugh would on the 26th of May, 1879, move the circuit court of said county for a judgment against the defendants for $813.76 with interest from March 18th, 1878,…

<p>This is an appeal from a decree of the circuit court of Rockingham county, rendered on the 2d day of July, 1880, in a chancery cause in which C. J. Ergenbright was complainant, and Jacob Ammon’s administrator and others were defendants.</p> <p>In October, 1870, Christena J. Ergenbright instituted a chancery suit in the circuit court of Rockingham county against the administrator and heirs , of Jacob Ammon, deceased, to recover a sum of money alleged to be due from him as her late guardian. On the 23d of November, 1876, a decree was entered directing certain real estate of the said decedent to be sold for the payment of his debts; and in February, 1877, the commissioner of sale offered the Ore Bant tract at public auction, when J. W. Melhorn, trustee for T. C. Melhorn, who was his wife, and one of the heirs •of the said Jacob Ammon, became the purchaser at the price of $2,300. The sale was reported to court and confirmed on the 20th of February, 18 77. Default being made in the payment of the purchase money, a rule was awarded on the 15th of February, 1878, to show cause why the land should not be resold, and no cause being shown, the court •ordered a resale. The land was repeatedly advertised without effect, when finally on the 5th of June, 1880, G. W. Berlin became the purchaser at the price of $850, and the sale was .approved and confirmed by the court on 16th of the same month. But on the 2d of July, 1880, the said Melhorn in his own name made an advance bid of $250 for said land, to which the said Berlin excepted, but the court, without assigning any reason, overruled the exception, set aside the decree confirming the sale to Berlin, accepted the upset bid of Melhorn, and directed a resale of the property.</p> <p>From this decree the said G. W. Berlin obtained an ■appeal and supersedeas from a judge of this court.</p>

At the January term, 1878, of the circuit court of Eockingham county, Erasmus Coffman, Jr., filed his petition in a chancery suit therein depending in the name of John EL Hopkins’ ex’ors v. David E. Hopkins and others, the object of which suit was to ascertain the liens on the real estate of said D. E. Hopkins, with their priorities, and to restrain any sale of the same under certain deeds of trust executed by said D. E. Hopkins, until all necessary accounts should be taken,…

<p>This was an action of trespass on the case in assumpsit, brought in the circuit court of Frederick county by George W. Welsh, against J. F. Ebersole, to recover of said Ebersole the sum of $1,900 and interest, the amount specified in a certain bond executed on the 24th day of February, 1869, by 17. W. Solenberger to said Ebersole, and passed by the said Solenberger to the said Welsh, with the indorsement thereon, in blank, of said Ebersole’s name. The declaration, filed at February rules, 1877, contains three counts. The first count is as follows:</p> <p>“George W. Welsh complains of J. F. Ebersole, who has been summoned to answer the said plaintiff in an action of trespass on the case in assumpsit, for this—to-wit: That a certain 17. W. Solenberger, on the 24th day of February, in the year 1869, in the said county, by his certain writing obligatory, signed with his hand and sealed with his seal, dated the day and year aforesaid, promised to pay on the 24th day of February, 1870, to the said J. F. Ebersole or his order, the sum of nineteen hundred dollars, with legal interest thereon from the 24th day of February, 1869, until paid, for value received; and the said J. F. Ebersole, after the making of the said writing obligatory, and before the sum of money specified therein, or any part thereof, was paid—to-wit: on the said 24th day of February, 1869, in said county, assigned and delivered the said writing obligatory and all his interest therein, for value received to the said plaintiff; and the plaintiff avers that when the said writing obligatory became due and payable according to its legal tenor and effect, the same not having been paid, or any part thereof, he intended to institute an action at law thereon, but was requested by the said J. F. Ebersole not to bring any suit thereon, but to give longer time for its payment. This request of the said Ebersole, that the-plaintiff would further indulge the said Solenberger and forbear to compel payment of the amount due on said writing obligatory, by law, was continued from time to time until the 20th day of October, 1874, and at his (Ebersole’s) instance and request, the said plaintiff did forbear to sue the said Solenberger on said writing obligatory until the date last aforesaid; but on the said 20th day of October, 1874, the plaintiff avers that, the sum specified in said writing obligatory being still due and unpaid, he instituted an action of debt thereon to recover said sum against the said 27. W. Solenberger in the circuit court of the county aforesaid, in which action the said Solenberger confessed a judgment in the office of the said court for $1,900, with six per cent, per annum interest thereon from February 21, 1870, until paid, and costs—to-wit: $9.62, as by the record and proceedings in that case will more fully appear; and the plaintiff further avers, that upon the said judgment he afterwards—to-wit: on the 20th day of October, 1874—caused to be issued from the office of the said court a writ of fieri /acias, directed to the sheriff of said county, commanding him to make of the goods and chattels of the said 17. W. Solenberger, within this county, he then residing therein, the said sum of $1,900, with interest as. aforesaid, and the costs aforesaid, and to have the same at the clerk’s office of the said court on the first Monday in January, 1875, to render to the plaintiff; on which writ of fieri facias the said sheriff made the following return— to wit: ‘ An indemifying bond required before levying on the property of 27. W. Solenberger, which was not given. January 11th 1875. J. M. Silver, Sh’ff.’ The said J. M. .Silver being then and there sheriff of the said county. And the plaintiff further avers, that the said Solenberger was not, when said fieri faaias issued, nor has he since been, possessed of any property subject to the lien thereof; of all which the said J. F. Ebersole afterwards—to-wit: on the 11th day of January, 1875—at the said county, had notice; by reason whereof he became liable to pay to the plaintiff the sum of money specified in the said writing •obligatory, together with lawful interest thereon from the 24th day of February, 1869, and all legal costs attending the prosecution of the said action and the execution sued out to enforce the judgment obtained therein as aforesaid; and being so liable, the said J. F. Ebersole, in consideration thereof, afterwards—to-wit: on the 11th day of January, 1875, in said county—undertook and promised the plaintiff to pay him, the same when he should be thereto afterwards requested.”</p> <p>The material averments in the second and third counts are set forth in the opinion of Staples, J., and require no further statement.</p> <p>At the March term, 1877, of said circuit court, the ofiS.ce judgment obtained against the defendant was set aside, and the defeudant filed a general demurrer to the plaintiff’s declaration, and the plaintiff joined in said demurrer, and the defendant pleaded “non assumpsit”; to which the plaintiff replied generally, and leave was given the defendant to file special pleas within sixty days; and the defendant craved oyer of the writing in the declaration mentioned.</p> <p>The case was afterwards continued from time to time, and the leave to the defendant to file special pleas extended until the November term, 1879, when the defendant filed •a general demurrer to the plaintiff’s declaration, and to each count therein, and the plaintiff joined in said demurrer; and the matters of law arising npon said demurrers Being argued, the court overruled the general demurrer to the declaration and demurrer to the first count, and sustained the demurrers to the second and third counts in the declaration, and gave leave to the plaintiff to amend his declaration. The declaration was not amended.</p> <p>At the March term, 1880, of said court, neither party desiring a jury, the case was submitted to the court, by Consent, to be heard on the issue joined, and the court, after hearing the testimony of witnesses and the argument of counsel, being of opinion that the plaintiff was not entitled to recover, gave judgment for the defendant • for his costs against the plaintiff.</p> <p>From the judgment of the court, sustaining the demurrer of the defendant to the second and third counts of the plaintiff’s declaration, a writ of error was awarded by one of the judges of this court.</p>

<p>On the 14th of June, 1875, Joseph S. Denny and Sarah A., his wife, conveyed to Charles W. Denny all the interest of the said J. S. Denny in a certain tract of land lying in Clarke county, said interest being about 163 acres, in consideration that the said C. W. Denny would pay a debt due by the said J. S. Denny to Lucy Hardy, amounting to about $1,000, and for the further consideration of $2,000 paid in money by the said C. W. Denny to J. S. Denny.</p> <p>On the 26th of June, 1877, the said J. S. Denny and wife executed a deed, which, after reciting .that J. S. Denny wished to secure to his said wife for her separate use a house and lot in Winchester, but without in any way impairing the claims of existing creditors, whether having liens on real estate or otherwise, and that certain liens thereon were held by the Winchester Building Association, went on to convey to Henry Kinzle the house and lot aforesaid in trust for the separate use of Sarah A. Denny, subject to the payment of said liens, for which the grantor had executed three bonds of $888.10 each, payable with interest at one, two and three years from June 26th, 1877. It was provided by said deed that if default were made in the payment of any of said bonds, the property should be sold and the residue of the proceeds, after paying what was then due, should be held for the separate use of Mrs. Denny, and that a release should be executed by the Building Association.</p> <p>After the execution of the foregoing conveyances, Fink, Bro. & Co. filed their bill in the circuit court of Frederick county against J. S. Denny and wife and others, alleging that in 1874 the plaintiffs were wholesale merchants, and that J. S. Denny was also a merchant in Winchester, and was indebted to the plaintiffs on the 15th of April, 1874, in the sum of $366.26 for goods and merchandise; that on the 15th of January, 1876, he paid $100, and on the 24th of August, 1874, $60 of said debt, but had never paid the residue; that Denny owned a tract of land in Clarke county containing about 163 acres and a house and lot in Winchester; that the aforesaid deed to C. W. Denny and Henry Kinzle, except as to the debts due to Mrs. Hardy and the Winchester Building Association, were null and void, being without valuable consideration and intended to delay, hinder and defraud creditors; that Denny owned no other property of any kind, and that the rents and profits would not pay off the liens in five years; and the prayer was that the property might be sold to satisfy the debts, etc.</p> <p>J. S. Denny and wife demurred to the bill, and also filed an answer denying the justice and accuracy of the plaintiff’s account and claiming further credits thereon. They also insisted that the two deeds aforesaid were founded on valuable consideration; that the deed of June 14th, 1875, relinquished the dower right of the wife in valuable real estate to secure a debt due by the husband to Mrs. Hardy, and for the primary consideration named in said deed, and that the relinquishment was made in consideration of the purpose and promise of the husband to secure the wife therefor on his remaining real estate in the city of Winchester, both for said relinquishment and for money and property of her separate estate lent to him and amounting to $800. Depositions were taken, but they did not establish the defence set up by the respondents Denny and wife. Charles L. Crum, administrator of John H. Crum, deceased, filed a petition in the cause alleging that he held a bond of J. S. Denny for $495, then owned by the estate of his decedent, the balance due thereon being $266.03 with interest on $223.74, part thereof, from December 30,1875, and praying that said debt might be allowed and paid out of the proceeds of the property. The date of the petition does not appear, but the assignment of this claim was made by Crum’s administrator to the plaintiffs on the 4th of June, 1880.</p> <p>The cause coining on to be heard on the 18th of June, 1880, the court decreed that, as to the debts of Fink, Bro. & Co. in their own right and as assignees of Crum’s administrator, the deed executed by J. S. Denny and wife to Henry Kinzle, trustee, for the benefit of Sarah A. Denny, was upon a consideration deemed valuable in law, and that-the deed could not be set aside or avoided; and from this decree an appeal was obtained.</p>

<p>This was a suit in equity in the circuit court of Rocking-ham county, brought in 1868, by J. Edmund Pennybacker against D. Morgan Switzer, Joseph S. Pennybacker, Sr., and Sarah A. Pennybacker, claiming that the said J. Edmund Pennybacker is entitled in fee simple, subject to the dower right of his mother, the said Sarah A. Pennybacker, to one-third of a lot, about one-third of an acre, with a stone dwelling-house, a frame office and other buildings thereon, in the town of Harrisonburg, in said county of Rockingham, in the occupancy of said Switzer. The plaintiff alleges in his bill that Isaac S. Pennybacker, his father,- died about the year 1848, intestate, possessed of this lot, “leaving as his only heirs-at-law his widow, Sarah A. Pennybacker, and three infant children—John D., Isaac S. and your orator J. Edmund Pennybacker—to whom said lot of land descended”; that the said Sarah A. Pennybacker was entitled to dower therein, and that the said John D. and Isaac S. Pennybacker, Jr., as they respectively attained to legal age, conveyed their interest in said property to their-mother, the said Sarah A. Pennybacker, the deeds for which were duly recorded, but believed to have been destroyed at-the burning of records of Rockingham county court by the Federal troops under General Hunter in the year 1864;. that said Sarah A. Pennybacker was the guardian of the plaintiff, and in the year 1861 intermarried with Joseph S. Pennybacker, Sr., who thereupon became, in right of his-wife, guardian of the plaintiff, and so continued until the-29th day of April, 1865, when the plaintiff arrived to legal age; that said Sarah A. Pennybacker was entitled to the said property other than the plaintiff’s interest, until she and her husband sold the same to the said Switzer, in the year 1863, since which time the said Switzer has occupied said property exclusively, and still continues to occupy it; that the plaintiff has never sold his interest in said pro-, perty, or authorized its sale, and he is entitled in fee simple-to one-third thereof, and to rents for five years (subject to the dower right aforesaid); that the said lot of land is worth not less than $5,000; that it is not susceptible of partition, and that the interest of all parties will be promoted by a sale thereof and the distribution of the proceeds among the parties according to their respective interests therein. The bill prays for a sale of the property and division of proceeds, an account of the rents and profits, and for general relief.</p> <p>The defendant Switzer answered the bill. He admits that Isaac S. Pennybacker was seized of the property, and that the property is in his (the defendant’s) possession; that his heirs-at-law were the widow and three children of said Isaac S. Pennybacker, as set forth in the complainant’s bill; that the widow was entitled to dower in the property in question, and that John D. and Isaac S. Pennybacker, Jr., after they had arrived at full age, conveyed their interests in said property to their mother, Sarah A. Pennybacker, the widow of the said Isaac S. Pennybacker, deceased; that in August, 1860, the mother of complainant qualified as his guardian; that she married Joseph S. Pennybacker, Sr.; that he does not admit or deny the age of the complainant, as he does not know, nor does fie admit that complainant is entitled to one-third of said property, subject to the dower right, or to the rents therefor for any time. He admits that said Sarah A. Pennybacker and Joseph S. Pennybacker, Sr., her husband, together with L. 'W. Gambill, as commissioner and trustee, conveyed the property to the defendant in the year 1863; but as the complainant has failed to set forth all the circumstances, defendant, in order that the court may be in possession of all the facts and be enabled to render an equitable decree between the parties, will now state them as far as he can, and which he does as follows: “Isaac S. Pennybacker, the father of the complainant, departed this life early in the year 1847, and on the 15th of February, 1847, administration of the personal estate of the said Isaac S. Pennybacker, deceased, was granted to Allen C. Bryan, by the county court of Bockingham county, and the same court, on the 17th of May, 1847, appointed Anderson M. Newman guardian of the infant children of said Isaac S. Pennybacker, deceased, and on the 7th of August, 1847, the said A. M. Newman instituted a chancery suit in said county court of Bockingham against the widow and infant children of the said Isaac S. Penny-backer. On the 24th of February, 1848, a decree was rendered in said chancery suit, directing the sale of a tract of land in Shenandoah county, belonging to the estate of the said Isaac S. Pennybacker, deceased, and appointing Samuel H. Pennybacker and Allen C. Bryan the commissioners, and on the 19th June, 1848, a decree was entered confirming the sale made by said commissioners of the Shenandoah land. On the 23d of May, 1849, the money arising from the sale of the Shenandoah land was directed to be paid to A. M. Newman, and on the 22d August, 1849, so much money was decreed to the widow as interest on one-third in lieu of dower in said Shenandoah land. The original papers in the chancery suit of A. M. Newman, guardian, against Sarah A. Pennybacker and the infant children of Isaac S. Pennybacker, deceased, having been lost or destroyed, respondent herewith files, as part of his answer, copies of said orders and decrees taken from the record books of the ■county court of Bockingham county (Exhibit A). The papers and records of this case having been lost or destroyed, respondent is unable to find any other orders or decrees in the case of A. M. Newman, guardian v. Sarah A. Pennybacker, &c., until the time respondent became the purchaser of the property now in controversy, when he, being satisfied that a good title could be made, became the purchaser at the price of $4,000; and on the 20th day of April, 1863, the county court of Bockingham county, by a ■decree rendered in the said case of A. M. Newman, guardian v. Sarah A. Pennybaeker and others, confirmed the sale and appointed L. W. Gambill as commissioner and trustee to unite with Sarah A. Pennybaeker and Joseph S. Pennybaeker in conveying said property to respondent. A copy of said deed is herewith filed, marked B, as part of this answer. Said deed, having been duly signed and acknowledged, was duly admitted to record, and the original record' having been destroyed has the second time been admitted to record. Respondent does not admit the property to be worth $5,000, and at the time of purchase, at the price of $4,000, the complainant, although then an infant, boasted of the high price that had been paid. Respondent does not admit that complainant is entitled, as 'against him, for any rents, or that the property is bound for the back rents, and that he believing when he purchased, and as he still believes, that he had a good title, has put valuable improvements on the property; and having purchased in good faith and obtained a title, according to the established laws of Virginia, asks that he may not suffer through the loss of the records, and be compelled to pay again for property which has been once paid for; and that if the plaintiff is entitled to recover anything, he may do so from the proper parties and not from respondent.”</p> <p>At the August rules, 1873, the defendant D. M. Switzer filed a cross-bill in the cause against the said J. E. Penny-backer, in which, after referring to the bill of complaint agaist him, and the facts set forth in his answer thereto, and stating that the said Pennybaeker in his suit had denied the jurisdiction of the county court of Rockingham in 1863 to confirm the sale of the property in question, alleges that the decree confirming the sale to him was rendered in the suit instituted in 1847, in the name of A. M. Newman, guardian, against Sarah A. Pennybaeker and others, at which time suits for the sale of infant’s lands might be brought iu the county court (Sup. to E. C. of 1819, ch. 166, p. 223); and although this law was changed in 1849,, yet the jurisdiction of the county court was still expressly retained over such cases as were then pending. (Code of 1849, ch. 157, § 3). That the papers in said cause were-destroyed by Hunter’s army in 1864, and therefore he could not show the different steps that were taken in the said cause; but, in the absence of proof to the contrary, it must-be presumed that everything was done in the cause that should have been done, because it is not proper to presume that a court of record erred.</p> <p>The defendant J. E. Pennybacker to the cross bill demurred to the same and filed his answer thereto. He states that he believes it to be true that in the year 1847 A. M. Hewman, guardian of himself and the other children of the late Isaac S. Pennybacker, did file a bill in chancery in the county court of Eockingham for the sale of a tract of land of which said Isaac S. Pennybacker died seized, known as the Forge farm, which land was sold by Allen C. Bryan and Samuel H. Pennybacker, as commissioners appointed for that purpose, in 1848; but he denies that the house and lot in Plarrisonburg, which was the homestead of said Isaac S. Pennybacker, and is now the subject of this suit, was embraced in said suit brought in 1847, or sought in said suit to be sold. The object of said suit was to sell the farm, not the home of the family. That it is true, as the papers show, that in 1863 the property in Harrisonburg was sold by said Joseph S. Pennybacker and wife to said D. M. Switzer for $4,000 in Confederate States treasury notes, and the whole amount at once paid over to said Pennybacker without the consent of respondent, and, he believes, without the consent of his mother, whose interest in the property had been settled upon her for her separate use,- that this, as respondent understands, was a private sale and may have been confirmed by the county court, but he insists that the sale and confirmation thereof were wholly null and void, and in no way binding on him. He denies the jurisdiction of the county court to decree a sale of an infant’s land in 1863, and states that if the original •suit of Newman, guardian v. S. A. Pennybacker had not long before terminated, it is fair to presume it had; that there was no right in 1863 to file an amended bill for the purpose of introducing new matter into that suit; and if such had been done, it would have been a new suit as to the house and lot; and for that reason alone it would have been improper. That it would have been a fraud upon the law to have sought to accomplish by an amended bill a result forbidden by filing an original bill, and denied the power of the county court in 1863 to make or confirm a sale under an amended bill filed in 1863, if such a bill could have been filed. He believed it to be true that the original papers in said suit of Newman guardian, v. S. A. Penny-backer had been destroyed, but contended that this does not give the complainant a right to presume anything in favor of the defence he has set up, and that the court cannot presume that an amended bill was filed and depositions taken against an infant, or any one else.</p> <p>A number of depositions were taken in the cause, and on the 3d day of February, 1874, the cause came onto be heard upon the bill, taken for confessed as to the defendants Joseph S. Pennybacker, Sr., and Sarah A. Pennybacker, the exhibits, the answer of the defendant D. M. Switzer, with general replications thereto; the cross-bill of the defendant the said Switzer, filed by leave of the court; the answer of the complainant J. Edmund Pennybacker to said cross-bill, and the depositions of witnesses, and was argued by ■counsel. Whereupon, the court, being of opinion that the complainant was entitled in fee simple to one-third of the lot of land and the buildings thereon, in the town of Harrisonburg, subject to the dower interest of his mother, Sarah A. Pennybacker, in said third, and that the defendant D. M.. Switzer was entitled to the residue of said lot and buildings, including the dower interest in the whole of said property, referred the cause to one of the commissioners of the court to take an account of the rents and profits of said property since the sale thereof to the defendant D. M. Switzer, in the year 1863, and also of the permanent improvements made, thereon by the said defendant during the same time, and to inquire and report whether said property was susceptible of partition in any of the modes provided by the statute; and on motion of the defendant D. M. Switzer, the commissioner was required to ascertain and report the value of said house and lot, and the value of the interest of said J. E. Pennybacker therein.</p> <p>At the May term, 1876, leave was given the defendant Switzer to file his petition for a rehearing of the causey which petition was filed on the 16th day of June, 1876; on consideration whereof the rehearing was granted.</p> <p>On the 13th day of March, 1887, the cause was reheard by the said circuit court, when the following decree was entered:</p> <p>“These causes came on to be heard again this 13th day of March, 1877, upon the papers heretofore read, former-orders and decrees, and the petition for rehearing and' answer to the cross-bill, which is, by consent of parties, read as an answer to said petition, replication thereto, and upon the report of Commissioner Daingerfield, filed June 5th, 1876, and being again argued by counsel; upon consideration whereof, it appearing to the court that the county court of this county did have jurisdiction of the matters complained of, and had a right to grant the relief and objects and purposes sought and prayed for in the original cause of Anderson M. Newman, guardian for the infant-heirs of Isaac S. Pennybacker, deceased, against Sarah A. Pennybacker, widow of Isaac S. Pennybacker, and others-mentioned in the bill and proceedings in this cause when instituted in 1848; and it also appearing to the court that the house and lot in Harrisonburg, Va., in the bill and proceedings in this cause mentioned, was sold, and the sale thereof confirmed by a decree of the said county court rendered in the said cause of Newman, guardian, &c. against Sarah A. Pennybacker, &c., on the 20th day of April, 1863, the purchase money paid by the said D. M. Switzer, and a deed made to him for said house and lot in due form of law on the 16th day of July, 1863, by J. S. Pennybacker, Sarah A. Pennybacker, and by L. W. Gambill as trustee for Sarah A. Pennybacker and as a commissioner duly appointed by the said county court and acting in conformity with said decree confirming said sale, and that it was duly admitted to record on the same day. The court must presume that the county court had taken all necessary steps to mature said cause for hearing, and that all necessary forms of law and legal proofs and requirements have been furnished or complied with to warrant the decree so rendered, and more especially so in view of the fact that nearly the whole record of said cause has been destroyed by fire, with the greater part of the other records of said court, since the rendition of said decree confirming said sale. And the court is further of opinion, that if it were conceded that there was error in said decree of the said county court confirming said sale, or in any of the proceedings in said cause of Newman, guardian, &c. v. Sarah A. Penny-backer, &c., such error or errors cannot be corrected in this collateral way as designed in the said first-named cause of J. E. Pennybacker v. D. M. Switzer. It is further adjudged, ordered and decreed, that the decree rendered in these causes by this court on the 3d day of February, 1874, be set aside, and that said first-named cause of J. Edmund Pennybacker v. D. M. Switzer, &c., be dismissed, and that the said D. M. Switzer, the defendant in the said first-named cause and complainant in tlie said second-named cause, recover his costs by him in said causes expended.”</p> <p>From this decree the said J. Edmund Pennybaeker applied to a judge of this court for an appeal; which was awarded.</p>

TMs is an appeal £r.oin tlie decree of the circuit court of Rockingham county. In ¡November, 1874, Eli Reran filed his hill in the circuit court of Rockingham county against James M. Trice and others, in which he alleged that oh the 15th of January, 1854, he executed a bond to said Trice for $700, and on the 16th of March, 1857, he gave to Trice, in lieu of the bond, a negotiable note for a.like sum payable thirty days after date at the Rockingham bank at Harrisonburg.

These are cases of appeal from the decree of the circuit court of the city of Richmond, rendered on the 23d day of April, 1880, in a suit in equity brought by Henry Lewis and Henry S. Me Comb, who sued for themselves and all other lien creditors of the Washington and Ohio Railroad Company, a corporation of the State of Virginia, against the said corporation and others, to enforce against the-defendant corporation certain claims of the complainants secured by a mortgage or…

This is an appeal from a decree of the chancery court of the city of Richmond. It was heard at Richmond, but decided at Staunton.

On the 2d of February, 1857, David AY. Barton, Girard F. Mason and John Stephenson qualified in the county court of Frederick county as executors of AYm. Stephenson, deceased, and the subsequent execution of the trust devolved almost exclusively on the said D. AY. Barton.

<p>This was a suit in equity in the circuit court of Smyth county (afterwards removed to the circuit court of Wythe county), brought by James W. Preston, who sued in his own right and as surviving administrator of John M. Preston against Abijah Thomas and others, asking for a sale of the real estate of said Thomas to satisfy sundry deeds of trust thereon, executed by said Thomas, and judgments which had been obtained against him.</p> <p>On the 24th day of November, 1860, the said Abijah Thomas executed his writing obligatory to the said John M. Preston for the sum of $5,693, payable twelve months after date, with interest from date. And on this same day the said Abijah Thomas and Priscilla his wife executed to A. C. Cummings, trustee, a deed of trust conveying six adjacent tracts of land in Smyth county, and a separate tract of 354 acres, called the “Mill Tract,” to secure the payment of the said sum of money. The said John M. Preston after-wards departed this life intestate, aud upon the distribution of his personal estate the said James W. Preston became entitled to the said writing obligatory, and the same was transferred and assigned to him by the administrators of said John M. Preston.</p> <p>Prior to the execution of the deed of trust to said A. C. Cummings—to-wit: on the 2d day of June, 1859—the said Thomas and wife had executed to Benjamin E. Floyd, trustee, to secure to George Douglas two several debts of $6,000, two deeds of trusts, conveying by one of said deeds a tract of 414 acres of land in Smyth county, referred to in the proceedings as the “ Killinger tract,” in which deed one Peter Killinger (who had sold the land to said Thomas, retaining a lien for the purchase money), united; and by the other of said deeds conveying the said “ Mill Tract,” embraced in the trust deed to said A. C. Cummings. The said Thomas had also on the 29th day of July, 1858, executed to James H. Gilmore a deed of trust to secure V. S. Morgan a debt of $8,000, conveying a tract of 400 acres, another portion of the land embraced in the trust deed to said A. C. Cummings, trustee.</p> <p>Subsequently to the execution of the said deed to the said A. C. Cummings, trustee, the said Thomas and wife executed a trust deed to E. A. Scott, trustee—to-wit: on the 17th day of December, 1860—to secure to W. P. Scott a debt of $12,500, conveying all the lands which had been conveyed to said A. C. Cummings, trustee, as aforesaid, except the “ Mill Tract.”</p> <p>The complainant’s bill, after reciting the above facts (which are proved by the exhibits filed), states that the complainant is informed that if not all, at least a large-part of the debt secured by the deed of trust executed as: aforesaid to said Floyd as trustee, had been satisfied and paid, and that the complainant claimed that said Douglas, the beneficiary in said deed, shall look first for any balance due him to the deed on the 414 acres of land (the “ Iiillinger tract”) before he is allowed to resort to the “Mill Tract,” he having two subjects to look to, while the complainant has but the one, unincumbered—to-wit: the mill property.</p> <p>]STo judgments against the said Thomas, then unsatisfied,, were rendered and docketed prior to the admission to record of said Douglas’s deed of trust; but there were rendered and docketed prior to the admission to record of any of the other deeds of trust before mentioned a number of judgments against the said Thomas, which are particularly set forth in the bill, and which are stated to be all the judgments against him unsatisfied that were docketed anterior to the admission to record of the several deeds of trust to secure said V. S. Morgan, John M. Preston, and W. P. Scott, respectively.</p> <p>The bill further alleges that the said Abijah Thomas owns many other and valuable tracts of land besides the lands conveyed in trust to secure the debts to the several parties aforesaid, so that although, except as to the deed of trust to secure the said George Douglas, there are prior judgments unsatisfied; yet, under the 10th section of chapter 186 of the Code of Virginia (1860) the lands thus retained by said Thomas are “ first liable to the satisfaction of the said judgments” before they can be enforced against any of the lands conveyed by the said several trust deeds. That upon many of the judgments above referred to executions have been issued with returns upon the same showing a levy upon personal property without showing that any disposition of the property has ever been made ; upon others, it appears that there have been levies and the property not sold; upon others executions appear, after levy, to have been held up by order of the plaintiff; and upon some of the judgments it appears that executions were ordered to lie for different periods.</p> <p>The complainant claims that after levy of the said executions, unless the property was released from the levy by legal process, the plaintiffs, as against the deeds of trust aforesaid, cannot abandon their levies and assert the lien of their judgments against the lands conveyed by said deeds.</p> <p>It is further represented in the complainant’s bill that there are numerous judgment creditors of the said Abijah Thomas whose judgments were obtained subsequently to the admission of the deeds of trust aforesaid to record, but their number, the state of their claims, whether satisfied in whole or in part, or wholly unsatisfied, cannot be ascertained without the taking of an account by a commissioner under the direction of the court.</p> <p>The bill, after making the trustees and beneficiaries in the deed of trust aforesaid, and the judgment creditors of said Thomas, parties defendants, and requiring them to state whether they have received any payments on account of the said encumbrances, and, if any, their several amounts and dates, prays as follows: “That an account be taken of the said debts of the said Douglas and of the payments thereof, and if any balance should appear to be due him, that for such balance he be thrown upon the 414 acres of land (the “ Killinger Tract ”) for satisfaction; that an account be taken of the amounts of the said several prior judgments, and that they may be thrown upon the lands of the said A.' Thomas retained by him after conveying the lands aforesaid by said deeds of trust, and be satisfied out of the lands so retained, or that those lands be exhausted before they be held to charge the lands so conveyed; that it be referred to a commissioner to ascertain and report to court the lands so retained by said Thomas as aforesaid; that an account of the debts due to the said trust deed creditors, including your orator, be taken, and that their priority and equities be so adjusted that they may, if practicable, be satisfied; that the “ Mill Tract,” being relieved from the Douglas lien, and of the liens of the said prior judgments, and not being embraced in either the deed of trust to secure said Morgan or said W. P. Scott, or so much of said “ Mill Tract ” as may be necessary for the purpose, be sold to satisfy your orator’s said debt; should the said “ Mill Tract ” not prove sufficient to pay your orator’s debt, then for the purpose of paying the balance due your orator, that such other portion of the land conveyed to secure his debt as will best accord with equity and subserve the interest of all parties, be sold; that as sales for cash under said deeds of trust would likely prove disadvantageous and result in a sacrifice of the property so sold, the terms of the said several deeds may be so far changed as that any sales made as aforesaid be upon such time as to the court may seem reasonable and be likely to prove most productive; that, should it appear to the court necessary or proper and equitable, an inquiry be made by a commissioner of the number and of any prior encumbrances of the real estate of said A. Thomas, and that they be allowed to come into this cause under a general order of the court, prove the validity of their liens and the amounts due on them, and have satisfaction thereof out of any surplus of the estate of said A. Thomas, not exhausted by the encumbrances of the parties aforesaid to this suit, or, if necessary, that said junior encumbrances, when ascertained, be made actual parties to this suit;” and for general relief.</p> <p>On the 2d day of September, 1871, a decree was entered in the cause, referring the same to one of the commissioners of the court, to take an account of all liens on the real estate of tlie said Thomas, the order of their priority, and the real estate he possessed, &c.</p> <p>On the 15th day of June, 1860, Peter Killinger conveyed to George W. Henderlite, as trustee, whatever amount of purchase money was due to him from said Abijah Thomas for the tract of land sold him (the (“Killinger tract”), and thus the trustee was invested with all the rights of said Killinger for the purposes of the trust. In December, 1860, Henderlite, as trustee, filed a bill in the circuit court of Smyth county to enforce the vendor’s lien for the purchase money; and in August, 1867, the court directed an account to ascertain the amount of purchase money due from Thomas to Killinger.</p> <p>As both the suits, of Henderlite, trustee, against said Thomas, and James W. Preston against said Thomas and others, were brought to subject to sale the real estate of said Thomas for the payment of his debts, the two causes were heard together, and a number of joint decrees entered; but the causes were never consolidated.</p> <p>J. B. Ehea and It. J. Preston, as trustees for their wives and children, devisees under the will James W. Sheffey, deceased (of a certain tract of land conveyed by said Abijah Thomas to said Sheffey), and said George W. Henderlite, trustee as aforesaid, presented a petition for appeal from decrees entered conjointly in said causes, which was allowed by one of the judges of this court.</p> <p>As is stated by Burles, J., in his opinion, the record in this cause is “ incomplete, confused, and very unsatisfactory.” The facts of the cause, so far as they have not been stated, the proceedings had, and decrees appealed from are sufficiently stated in his opinion to understand the points decided</p>

<p>On tlie 8th of November, 1876, the Alexandria and Fredericksburg Railroad Company filed its petition in tlie circuit court of Alexandria county, praying to be admitted a party to a certain ckancery suit therein depending between the Alexandria and Washington Railroad Company, plaintiff, and Fowle, Snowden & Co. and others, defendants; the object of which suit was to enjoin the sale of property under a deed of trust executed by the latter company for the benefit of Fowle, Snowden & Co., and to ascertain the liens on said property with their priorities, etc.</p> <p>The petition set forth that by regular proceedings in the ■county court of said county (which proceedings were exhibited in the petition) a portion of land containing 8 acres 25 perches of the Alexandria and Washington Eailroad Company, or, as shown by the report of the commissioners in said proceedings, 18J' feet along its whole line had been condemned for the uses and purposes of the Alexandria and Fredericksburg Eailway Company; that many of the incumbrances on the road of the Alexandria and Washington Eailroad Company were prior in date to the said proceedings and judgment of condemnation; that the money ascertained by the commissioners to be a proper compensation for the land so taken, had been paid over by order of the court to the parties entitled thereto; that by said proceedings of condemnation a fee simple title to the land so condemned had been vested in the Alexandria and Fredericksburg Eailway Company, discharged of all incumbrances whatsoever; and it was prayed that the rights of the petitioner as the fee simple owner of the land might be recognized and the sale made subject thereto.</p> <p>After various proceedings, not necessary to be stated, the circuit court, on the 23d of May, 1879, dismissed the said petition, and from this decree the Alexandria and Fredericksburg Eailway Company applied to one of the judges of this court for an appeal, which was allowed. The case is sufficiently stated in the opinion of Anderson, J. '</p>

<p>Some time in February, 1859, Samuel Leake died, leaving a will by wkicli be appointed Wellington Goddin, of tbe firm of Goddin & Apperson, bis executor, wbo qualified as sucb in tbe circuit court of tbe city of Eichmond, on tbe 23d of February, 1859, and gave a bond in tbe penalty of $70,000, witb James L. Apperson, James M. Taylor and Lucian B. Price as bis sureties, and tbe executor proceeded immediately to convert tbe whole estate, except tbe slaves, into money. Soon after bis qualification, Walter Leake filed a bill in said court against tbe executor, on bebalf of bimself and tbe other legatees for a construction of tbe will and for directions to tbe executor on certain points and for a distribution of tbe estate. The executor, in bis answer to said bill, admitted that all tbe debts bad been paid, and in November, 1859, a decree was entered for a divisions of tbe slaves among tbe legatees, which was made accordingly, upon tbe execution of refunding bonds.</p> <p>On tbe 7th of February, 1860, Shelton F. Leake brought an action of assumpsit in said court against tbe executor, in which he claimed $10,000 for services rendered to the testator, and obtained a judgment in said action on the 26th of June, 1870, for $6,133.33, with interest from Frebruary 7th, 1860, till paid.</p> <p>It seems that at the time this action was instituted, the executor had in his hands about $25,000 of assets deposited in bank to the credit of Goddin & Apperson, $15,000 of which he distributed to the legatees after the said action had been brought. The balance in hand on the 22d of February, 1861, was $10,246.50, and it remained uninvested until the 14th of July, 1863, when, under an ex parte order of said court, the sum of $11,000 was invested, upon the check of Goddin & Apperson, in a Confederate States bond. The executor claimed that this balance had been retained in order to meet the result of the action at law, which the legatees had instructed him to contest.</p> <p>In March, 1871, Shelton F. Leake brought a suit in the chancery court of Bichmond against Wellington Goddin, executor of Samuel Leake, deceased, James L. Apperson, James M. Taylor and Lucien B. Price, his sureties, and others, setting forth his said judgment and alleging, among other things, that the said testator left a large estate, consisting of land, negroes, money and securities, which came to the hands of the executor; that the testator, at the time of his death, owed nothing except the debt due to the plaintiff; that the institution of his action in February, 1860, within a year after the qualification, was notice of his</p> <p>claim to the executor, and that the distribution made by him was a devastavit, for which either he and his sureties, or else the legatees, were responsible; and prayed accordingly. An amended bill was filed, which did not materially alter the case as made out by the original bill. Several of the parties answered, and such proceedings were had that on the 10th of February, 1877, Commissioner Evans, to whom was referred the settlement of the accounts of Weilington Goddin as executor of Samuel Leake, deceased, made Ms report to court, in which lie charged the said executor with $11,000 as improperly invested by him on the 14th of July, 1863, and held that the said item charged to the estate as of that date should be stricken from the executor’s account.</p> <p>This report was excepted to by the executor upon several grounds, one of which was that the item of $11,000 had not been specifically surcharged or falsified in either of the bills or before the commissioner, which exception was sustained by the court; and thereupon a decree was entered on the 1st of December, 1877, recommitting the said report, with direction to the plaintiff, Shelton F. Leake, to file before the commissioner a specification in writing of the item or items in the previously settled accounts which he designed to surcharge or falsify, with leave and direction to the executor to reply to said specification; which reply should have the force of an answer—and upon the issue so raised the commissioner was required to report his determination. The plaintiff filed a specification excepting to the said item of $11,000; to which the executor and his sureties, Apperson and Price, replied, relying, among other things, on the statute of limitations as a bar to any relief based on a surcharge or falsification made more than five years after the confirmation of the report in which the said Confederate investment had been passed upon and approved hy the court—viz: on the 2d of March, 1865, in the suit of Leake v. Leake’s Executor and als.</p> <p>On the 1st of March, 1878, the commissioner made his report, setting forth the proceedings before him and adhering to the conclusions announced in his former report. And the cause coming on to be further heard, on the 20th of April, 1878, the court confirmed and adopted, among others, the report of March 1st, 1878, except so much as referred to the legatees as to whom no decision was made, and held that the said executor had committed a devastavit in making the said investment of $11,000, and that he and his sureties were therefore personally liable to the estate in a sum which, with interest, was at least equal to the aggregate of the plaintiff’s claim as ascertained by Commissioner Evans in his report of February 10th, 1877, and it was accordingly decreed, that on default of payment within sixty days from the decree, execution should issue against the said executor and his sureties for the sum of $6,133.33, with interest, costs and damages; and from this decree the said executor, James L. Apperson, James M. Taylor and L. B. Price obtained an appeal, not to operate as a supersedeas, from a j udge of this court. ’ .</p> <p>Default of payment having been made, executions were issued against the executor and his sureties, and were returned no effects; whereupon the court, on the 26th of June, 1880, being of opinion that the legatees were compellable to refund at the suit of the plaintiff, and that the residuary legatees should contribute before the other legatees were called upou, and it. appearing that the executor and his sureties were insolvent, decreed that executions issue against the residuary legatees respectively for the amounts found due by the commissioner’s report of February 10th, 1877; and leave was reserved to the plaintiff, in case of the insolvency of any residuary legatee, to apply for further executions against such as were solvent, to the full amount received by them from the estate of the testator; and from this decree William G. Leake and other legatees obtained an appeal and supersedeas from a judge of this court.</p>

<p>At August rules, 1874, Thomas Newman, administrator cie bonis non of T. Newman, deceased, filed his bill in the clerk’s office of the circuit court of York county, against Edmund T. Wynne and Thomas Curtis, alleging that Susan M. Newman, late executrix of the said decedent, in 1868,. brought an action in said court against the said E. TWynne, surviving obligor, on a bond in the penal sum of $2,200, executed by him and T. W. Whittaker as principal,, to the said executrix; that issue was joined on a plea of non est factum in said action, and the trial resulted in a verdict and judgment for the defendant; that since the qualification of said administrator, facts had come to his knowledge which, together with his previous knowledge of the mental and physical condition of Mrs. Newman, satisfied him that the said verdict and judgment were erroneous >■ that among the facts so learned were the following: that Mrs. Newman was in very feeble health both before and •during the said trial, and was unable to attend to business, or furnish her attorney with the names of witnesses to be summoned, or otherwise assist him in preparing- for the trial, and that she could not conveniently communicate with persons outside of her immediate family to ascertain the facts and witnesses material to her case. In addition to these matters, it was alleged that the said Wynne, in January, 1867, in consideration of $15,560, conveyed to the said Curtis all his land and personal property for certain .specified objects, and after the trial aforesaid was had, the said Wynne had the land reconveyed to him—which transactions were charged to be fraudulent. It was further shown that the said Wynne, on several occasions, requested E. Mallicote to deliver a message to Mrs. Newman, asking her not to sue him and promising to pay the said bond, and that Wynne had spoken of it as his bond. It was charged that the message was not conveyed to Mrs. Newman, that she did not know of Wynne’s admission about the bond, and that the plaintiff had no knowledge of said facts until recently, and long after the said trial. It was admitted that other evidence than that produced at the trial might have been discovered by proper diligence on the part of Mrs. Newman, if she had been in a condition to exercise such diligence, but that such evidence could now be obtained if a new trial should be granted. The prayer was that the judgment and verdict be set aside; that the action be revived in the name of the plaintiff, as administrator de bonis non; that a new trial be granted, and for general relief.</p> <p>Wynne answered the bill, denying that the said executrix ever held, or that he had ever executed, a bond payable to her as such, in the penal sum of $2,200, and dated January 1st, 1854, although she doubtless held one of that description. It was admitted that she had brought the action aforesaid, and that a judgment was rendered for the respondent on the plea of non est factum; hut he denied that any information had reached the plaintiff which would in any manner have influenced the verdict on the trial aforesaid. It was admitted that Mrs. Newman might have been in delicate health at the time, but it was insisted that she was otherwise capable of transacting business and had actually done so since the said trial; and it was alleged that Thomas Newman, the complainant, had rendered every possible service to the counsel of Mrs. Newman in the prosecution of said action, and that the counsel were zealous,, faithful and capable. It was denied that the deed to Curtis was intended to defraud the said executrix or the estate of her testator, or that the respondent ever sent the said message to Mrs. Newman, or ever spoke of the bond as his. There were other allegations in the answer not necessary to be here stated, and depositions were taken on both sides.</p> <p>The cause came on to be heard on the 1st of May, 1877, and the court, being of opinion that the proofs of after-discovered evidence, and of the mental and physical condition of Mrs. Newman, did not alone justify the interference of the court with the judgment aforesaid; but that the deed from Wynne to Curtis in connection with the deed of Curtis and Bennett to Wynne, together with all the facts and circumstances, showed a case that ought to be submitted to a jury, it was decreed that the judgment and verdict aforesaid be set aside and that a new trial be had by the said administrator, with leave to revive the said action,, etc.; and from this decree an appeal and supersedeas were obtained.</p>

<p>1. Under article IV, § 1, of the constitution of the United States, and the act of Congress of May 26, 1790, a writ of error, not operating as a supersedeas, from the supreme appellate court of Texas to a judgment of a district court of that State, will he regarded as having the same effect in Virginia as in Texas.</p> <p>2. In such a ease, an action may he maintained upon the judgment in Virginia, notwithstanding the pendency of appellate proceedings in Texas, hut the Virginia court may order that no execution shall be issued on a judgment obtained in such action, provided the defendant give bond and security conditioned to satisfy the judgment and pay all damages, costs and fees, etc., in ease the writ of error pending in Texas should be determined adversely to the defendant.</p> <p>3. The laws of Texas are not pleaded nor in evidence in the cause, but in the absence of proof of a difference between the law of that State and this, it will be taken that the law of that State, as it affects the question of the effect of a writ of error without a supersedeas, is the same as in this State.</p>

<p>On the 16th of June, 1877, William. D. Bethell, assignee of Thomas & Bethell, served a notice on John L. Pairo, that he would move the corporation court of the town of Danville, on the fifth day of the following- July term thereof, to enforce a mechanic’s lien, under ch. 115, Code 1873,. on a house and lot in said town for $3,000, subject to several credits for money paid at'different dates, which lien was. founded upon a written contract made on the 2d of September, 1875, between the said Pairo and Thomas & Bethell,. whereby the said Thomas & Bethell agreed to build and furnish materials and labor for a two-story framed dwelling-house and out-house on a lot of said Pairo, in the town aforesaid. In consideration whereof, the said Pairo made two negotiable notes for $1,500 each, dated January 27th, 1876, and payable, with interest, to the order of said Thomas & Bethell, eight and twelve months after date respectively. The said contract, with a sworn account showing the balance due thereon, was recorded in the clerk’s office of said court on the 10th of February, 1877, within thirty days, as. was alleged, after the completion of said work; and the said notes, before their maturity, were transferred to the-complainant by the said Thomas & Bethell, with all their rights of enforcing payment of the same.</p> <p>Upon the hearing, the court, overruling sundry motions of the defendant, entered a decree that unless the said John L. Pairo should pay to the complainant the debt demanded, subject to certain credits, within twenty days from the date of the decree, the house and lot in the proceedings mentioned should be sold at public auction, for cash as to so much money as should be necessary to pay the costs of sale and the lien of said W. D. Bethell, with the costs of enforcing the same, and as to the residue of the purchase money on a credit of six and twelve months, etc.; and from this decree the said John L. Pairo obtained an appeal and supersedeas from a judge of this court. The proceedings are sufficiently stated in the opinion of Burles, J. *</p>

This is an appeal by B. M. Batcbelder and 'William H. Collins, merchants and partners trading under the firm name and style of Batchelder & Collins, from a decree of the corporation court of the city of Norfolk, made on the 24th day of September, 1878, in a cause depending in said court, in which said Batchelder & Collins were plaintiffs, and Francis Bichardson and Henry C. Percy, trustee in a certain deed of trust executed by John W. Murden, conveying real estate in the…

<p>1. On a notice to and motion against the treasurer of a county and his sureties for a One for his failing to submit his bond to the commissioner of accounts within the time prescribed by the act of 1878-79, chap. 60, § 4—Held :</p> <p>1. The motion will not be dismissed for the joining the sureties in it.</p> <p>2. The proceeding being in the nature of a criminal prosecution, the motion may be dismissed as to the sureties, and judgment rendered against the treasurer.</p> <p>2. In such a case the fact that the treasurer was not informed of the passage of the act until after the time prescribed by the act for submitting his bond to the commissioner of accounts, will not relieve him from the penalty provided by the statute for such failure. The law presumes every man to know the law.</p>

This case was heard at Wytheville, but was decided at Richmond. It was an indictment in the county court of Roanoke county against Marcus D. L. Hawley, Peter Hawley, and two others, for the hilling of Zachariah Hayes. The indictment contained four counts.

This was an indictment in tlie county court of Campbell ■against Jesse E. Mitchell, for obtaining money from Lizzie May Eobinson by threats of prosecution for criminal of-fences, which he charged her with having committed. On the trial the jury found the prisoner guilty, and fixed the term of his imprisonment in the penitentiary at five years; and the court sentenced him accordingly.

<p>1.On the examination on the «oír dire, a juror answered that “at first he had formed a hypothetical opinion, but had afterwards heard other evi- dence which had tended to weaken the opinion then formed, and that he could not say now that he had such an opinion that evidence could not remove it, but that he preferred not to sit as a juror; and that he could give the prisoner a fair trial ”&emdash;Held : The doubt expressed by the juror, as to whether or not the opinion formed by him would yield to the testimony adduced on the trial, rendered him incompetent.</p> <p>2. Another juror answered “that he had formed and expressed a hypothet- ical opinion, but that said opinion could be changed by evidence; that he had formed it from reading newspapers, and from what he had heard, but could give the prisoner a fair and impartial trial.” And was then asked by the prisoner’s counsel as follows : “ Have you now a decided opinion on your mind as to the guilt or innocence of the prisoner, without evidence?” Answer&emdash;“ I haven’t a decided opinion, but rather & positive one.” “ Would it require evidence to remove the opinion you now have?” Ansvier&emdash;“It would.” Held : This juror was also in- competent.</p> <p>3. Whenever tjie trying court has a reasonable doubt as to whether the juror can give the accused a fair and impartial trial, that doubt should be re- solved in favor of the prisoner.</p> <p>4. In the trial of criminal cases, especially, the court should leave to the jury, exclusively, the consideration of the facts, and tío remarks which have a tendency to intimate the bias of the court on the character or weight of the testimony should be indulged in by it.</p> <p>5. Whilst, in inquiries relating to insanity, every reasonable latitude should be allowed in the examination of witnesses, however false or unfounded the court may consider the defence; yet, such questions should not be allowed to be asked as would only consume the time of the court, or tend to mislead or confuse the minds of the jury. For some objection- able questions, see opinion of Staples, J.</p> <p>6. It is always requisite, that where parties complain of the exclusion of proper testimony, the bill of exceptions must state so much of the evidence as tends to show the pertinency and relevancy of that which is excluded.</p> <p>7. Where the defence, in a trial for murder, is insanity, it is competent to ask a medical expert such a question as this: “ Suppose a man had inherited a predisposition to insanity, would great mental anxiety, loss of property, or the honor of one’s family, and losses of other kind be likely to develop the disease ?”</p> <p>S. Whilst the mere fact that the presiding judge in the trying court, on his own motion, charges the jury on the law of the case, if done correctly, is no ground for reversing the judgment; yet, such is not the practice in Virginia, and it is not desirable that it should become so.</p> <p>9. Among other things, the court instructed the jury as follows: “Butin every case, although the accused may belaboring under partial insanity, if he still understands the nature and character of his act, and its consequences, and has a knowledge that it is wrong and criminal, and a mental power sufficient to apply that knowledge to his own case, and to know that if he does the act he will do wrong and receive punishment, and possess withal a will sufficient to restrain the impulse that may arise from a diseased mind, such partial insanity is not sufficient to exempt him from responsibility to the law for his crime.” Held : This part of the instruction correctly expounded the law.</p> <p>10. Malice being a necessary ingredient in the crime of murder, the law infers it wherever the killing is deliberate and premeditated; and it would, therefore, be error to instruct the jury that they must believe the killing was malicious, deliberate and premeditated. Dor instructions properly refused, see opinion of Staples, J.</p> <p>11. Where insanity is relied on as a defence, it must be proved to the satisfaction of the jury, and it is not necessary that the j ury shall be satisfied of the sanity of the prisoner, beyond all reasonable doubt. See Boswell’s case, 20 Gratt. 860; Baccigalupo’s case, 33 Id. 807.</p> <p>12. Whatever may be the right of jiqunsel, in criminal cases, to maintain by argument to the jury propositions of law untrammeled by the court, where no instructions have been given by it, as to which no opinion is expressed; yet, where the court has instructed the jury, in accordance with principles established by this court, counsel have no right to argue against such instructions.</p>

<p>1. A boy under fourteen years of age, who assists another person in an attempt to commit a rape, may be convicted as a principal in the second degree, and, under the Virginia statute, punished the same as the principal in the first degree, if it appear, under all the circumstances of the case, that he had a “mischievous discretion.”</p> <p>H. In any ease of felony, the principal in the second degree is punishable in Virginia as if he were the principal in the first degree.</p> <p>5. The fact that a boy eleven years and eleven months old, of “ average capacity ” for his age, put his hand over the mouth of a female whilst liis elder brother attempted to commit a rape upon her, is not sufficient of itself for his conviction as principal in the second degree of the felony of which Ms elder brother had been convicted.</p> <p>4. The evidence of malice, which is to supply age, must he clear and strong beyond all doubt and contradiction.</p>

This case was in this court by writ of error to a judgment of the hustings court of the city of Eichmond. The case is fully stated by Judge Christian in his opinion.

John E. Smith was indicted at the November term, 1880, of the county court of Henry county, for an assault with intent to maim, disfigure, disable and hill Walter D. Booker; and such proceedings were thereupon had, that at the February term, 1881, of the said court, the prisoner was put upon his trial before the judge of the county court of Patrick county, then sitting as the judge of Henry county, and being found guilty, moved the court for an arrest of judgment, upon the…

This was a writ of supersedeas to a refusal of the judge of the circuit court of Prince William county to grant a writ of supersedeas to a judgment of the county court of said county, sentencing Peter F. Wolverton to receive five stripes, on a conviction of petit larceny, for that, as alleged in the indictment, “on the 17th day of December, 1880, in the county aforesaid, one padlock, of the value of thirty cents, of the goods and chattels of one George Kreig, then and there…

This was a writ of error to a judgment rendered by the-judge of the circuit court of Pittsylvania county, refusing-a writ of error to a judgment rendered by the county court of said county, in a prosecution against Dock Wright for-the murder of Joseph Coleman Arthur.

<p>This was a writ of error to a judgment rendered by the hustings court of the city of Bichmond in a prosecution against Kelson Crump for perjury, in which he was convicted, fined |10, and sent to jail for one year. The grounds upon which the prosecution was based are sufficiently stated in the opinion of the court.</p> <p>Among other instructions asked by the prisoner’s counsel were the following:</p> <p>bio. 2. “ That if a false oath was to the effect that he did not sign a certain paper, waiving his laborer’s exemption, that it was not material.”</p> <p>bio. 3. “ That his homestead exemption was not in question, and therefore as to that it was immaterial.”</p> <p>Both of which the court refused to give, and the prisoner excepted. The paper alleged to have been signed by the prisoner waiving his exemptions, contained a waiver both of the “homestead” and “laborer’s” exemptions.</p>

This is a writ of error and supersedeas to a judgment of the circuit court of Brunswick county, rendered at the April term, 1881, sentencing Littleton Hatchett to be hanged, who was indicted jointly with Oliver Hatchett and Henry ■Carroll, for the murder of Moses Young, by poison&emdash;the said Oliver Hatchett as principal, and the others as accessories before the fact.

<p>1. A citizen of Maryland is liable to prosecution and conviction for the violation of 18th and 20th sections of ch. 100, Oode of Virginia, 1873, relating to fishing in the Potomac river, which were enacted with the consent and approbation of the State of Maryland.</p> <p>2. Articles 8 and 10, of compact between Virginia and Maryland, to be found in Code of Virginia, ch. 1, pp. 110, 111, construed.</p> <p>3. A demurrer to an indictment containing two counts, being general, and not to each count thereof, if either count is good it is properly overruled. And the verdict being general, if supported by either count must stand.</p>

This was a writ of error to a judgment rendered by the hustings court of the city of Richmond, revoking the license of Mark Davis, who had been licensed by said court to keep a bar-room in said city. The facts are sufficiently stated in the opinion of the court.

TMs is tlie sequel of the case reported in 28 Graft. 686, under the title of Nash v. Nash and als. When the case went bach to the circuit court, an amended and supplemental bill was filed by Samuel H. Nash, and was answered by Preston, who held as security for his debt the trust deed executed by William Nash to Bechem, trustee, and also by the personal representative of Bechem, who died before the amended bill was filed.

<p>James W. Utz, of the county of Koanoke, died in January, 1863, having made and published his will, which was duly ■admitted to probat, appointing William M. Utz and Hiram Hansbrough his executors, who qualified as such. He left •considerable real and personal estate, one-half of which he devised and bequeath to his son, the said William M. Utz, •and the other.half to the children of his deceased daughter, Almira V., who was the wife of said Hiram Hansbrough.</p> <p>In October, 1877, a friendly suit was brought in the circuit court of Boanoke county, in which Charles M. Utz and Anna J., his wife, and James E. Hansbrough and Margaret •S. Hansbrough were plaintiffs, and William M. Utz and Hiram Hansbrough, in their own right and as executors of •James W. Utz, deceased, were defendants, which had for its object, among other things, the settlement of the executorial accounts of said executors.</p> <p>The defendants filed their joint answer to the bill, and the court entered a decree referring the cause to one of its •commissioners to inquire what estate, real and personal, said testator left at liis decease;. what disposition he made of the same by his will, and to state and report the accounts of the defendants as executors aforesaid. Other inquiries were directed to be made and accounts to be settled, which need not be noticed.</p> <p>The commissioner made his first report in May, 1878, to which several exceptions were filed by the defendant H. Hansbrough, all of which were sustained except “ exception 3,” to “item of 1st January, 1863,” of the account of the executors, which was to the non-scaling of the bond of the testator dated 1st January, 1863, for the payment of $3,976.75 on demand to William M. Utz, which exception was overruled.</p> <p>The commissioner did scale a certain other bond of the testator to said Wm. M. Utz, dated March 2d, 1862, for $320, payable on demand, to which item the latter, by his counsel, excepted, and the court sustained the exception, and by its decree of 11th day of April, 1879, allowed said William M. Utz, against the testator’s estate, the full face amount of said two bonds.</p> <p>The cause having been referred again to the commissioner to restate the accounts in accordance with the opinion expressed in that decree, the commissioner filed on 17th September, 1879, his second report, to which there was no exception.</p> <p>On the 13th day of October, 1879, the court, having considered the bill of review, which had been filed by the said H. Hansbrough, and the answer and demurrer thereto, and the second report of the commissioner, confirmed the-said report, and dismissed the bill of review on the ground that there was no error in the decree (of 11th of April, 1879) complained of; and on the 10th day of April, 1880, entered its decree confirming expressly the second report, especially wherein it states the indebtedness of the testator’s estate to Wm. M. Utz to be $11,923.45, with interest on §7,710.38 from 1st April, 1878 ; and ordered that said H. Hansbrough pay to said Win. M. Utz §7,637.10, with interest on §4,396.90 from 1st May, 1878, thus basing its last decree on the principle of the non-scaling of the two bonds aforesaid.</p> <p>From these three decrees, of 11th April, 1879, 13th October, 1879, and 10th April, 1880, respectively, the said H. Hansbrough, executor of James W. Utz, deceased, applied to one of the judges of this court for an appeal and supersedeas, which was awarded.</p>