Volume 76 — Virginia Reports

<p>Note by Reporter.—Judge Staples also delivered a written opinion, in which he expressed his concurrence in the results, but not in the reasoning of Judge Christian. That opinion has been unfortunately mislaid, and cannot now be produced. It is understood, however, that Judge Staples rested his decision upon the ground that Preston, the appellant, was equitably estopped by his conduct from setting up the lien of the trust deed against Nash, a complete purchaser of the equitable title.</p> <p>Judge Burks concurred with Judge Staples, placing his view on the ground of equitable estoppel, and referring to 2 Pomeroy’s Eq., § 750, and notes, and to 104 U. S. (14 Otto) Reports, 428, 436, at seq.</p> <p>In the report of this case published in 1 Matthews (75 Va.) 949, Judges Staples and Burks, as well as Judge Anderson, are erroneously stated to have concurred in the opinion of Judge Christian. The case was never ordered to be reported by the court. Judge C. directed Mr. Matthews to report it—which he did, probably, without having seen the views of the dissenting judges, at whose instance the case is inserted in this volume with a view to a correct understanding of their positions.</p>

<p>Appeal from decrees of chancery court of Richmond city pronounced 21st November, 1878, and 17th December, 1878, in the suit of the Farmers Bank of Virginia against Neal and wife, and A. G. Walters and others.</p> <p>In January, 1861, Louisianna F. Neal, by her husband and agent, Thomas D. Neal, made a negotiable note for $800, payable sixty days after date, and endorsed by said Walters. It was discounted by said bank. It was not paid at maturity, and notice of the protest thereof was duly given.</p> <p>In June, 1867, the bank instituted suit in chancery against Mrs. Neal, her husband, Treadway, her trustee, and Walters, her endorser, alleging that she was a married woman having a separate estate; that Treadway was her trustee, and T. D. Neal her agent; that by her agent she made the $800 note, got Walters to endorse and the bank to discount it, and prayed that the separate estate might be subjected to pay it, or that same might be paid by her or by her endorser.</p> <p>In March, 1872, P. W. Ferrell, in his own right and as administrator of his alienee, Bird L. Ferrell, deceased, and others, filed their petitions stating that in 1866 P. W. Ferrell became complete purchaser of said separate estate for value without notice.</p> <p>The plaintiff then filed amended bill charging that the conveyances from Mrs. Neal, her husband and her trustee to P. W. Ferrell, and from P. W. Ferrell to Bird L. Ferrell were fraudulent or voluntary, and prayed that they be set aside and the estate subjected to the debt.</p> <p>The defendants filed demurrers and answers to the bills, and Ferrell plead the statute of limitations. Numerous depositions were taken.</p> <p>The said chancery court, to which the cause had been removed from the circuit court of Danville, by its first decree overruled the demurrers and the plea of the statute of limitations, dismissed the bill as to the Ferrells, who were complete purchasers of the separate estate for value without notice, and referred the cause to a master to ascertain whether or not there was any such separate estate of L. F. Neal as could be subjected to pay the debt. The master having reported that there was none such, by its second decree the chancery court adjudged that the bank recover of A. G. Walters the debt, interest and costs. From these decrees the said Walters obtained an appeal and supersedeas.</p>

Davis leave to file a bill of review of certain decrees in a suit wherein Mrs. A. H. L. Davis and als. were plaintiffs, and Charles Y. Morriss and Robert F. Morriss, executors of Richard G. Morriss, deceased, were defendants.

M. Lawson, administrator d. b. n. c. t. a. of John Lawson, deceased, Eobert Brewis, William Brewis, James Brewis Davidson, John Smith, and Mary, his wife, Thomas Davidson, Joseph Henry Taylor, and Margaret Jane Davidson, and Elizabeth Davidson. John Lawson died in 1851 testate, leaving a widow, and giving his whole estate to his two nephews—Anthony Lawson, the plaintiff, and Thomas Anthony Brewis. The latter qualified as executor.

A. Eawlins, wbo bad been executor of Townes, and others; and same plaintiffs against Eawlins’ executor- and als. Object of first was to surcharge and falsify the accounts stated ex parte of Eawlins as such executor, in bis. lifetime, and by Tarry, Ms executor, of the administration of the assets of Edmund Townes’ estate.

, and said Adams were plaintiffs, and Thomas, William, Benjamin, Winney H., James M., and Bettie W. Corbin, Jeremiah White and Susan, his wife, George Adams and Sarah J., his wife, and Henry R. Shelton and Mary Ann, his wife, were defendants. Jameson Corbin, by his will, gave all of his property to four of his ten children—to-wit: Nannie (the plaintiff), Winnie, Bettie, and James. By a writing executed 18th November, 1878, by all the defendants and the plaintiff,.

T. Battaile, plaintiff, against Laura Battaile, Virginia C. Battaile, and J. N. Battaile individually and as administrator of Lawrence Battaile, deceased, and as committee of said Virginia C. Battaile, lunatic, defendants.

B. Oliver and other creditors of Colin Stokes, deceased, against Henry Stokes, Bichard Stokes, Bobert S. Bagley and Susan, his wife, children, and Sarah M. Stokes, widow of Colin Stokes, deceased.

<p>Appeal from decree of chancery court of Richmond city, rendered 13th January, 1874, in the suit of Caskie Harrison, Nowell Harrison and Percy Harrison, the two last named being infants, who sue by, &c., against Robert A. Caskie and Willie H. Caskie, in their own right, and as surviving executors of John Caskie, deceased; and also as surviving executors of James K. Caskie, deceased, who was one of the executors of John Caskie, deceased, John N. Caskie, J. Seddon Jones and'Martha Nor veil Jones, his wife, who was Martha Norvell Caskie, and Nannie C. Hutcherson.</p> <p>Prior to September, 1867, the firm of J. & J. K. Caskie, composed of John Caskie, father, and James K. Caskie, son, did business in said city in buying, “ handling” and selling tobacco.John died in September, 1867, testate.</p> <p>His three sons—James E., Robert A. and Wm. H. Caskie— being named in the will as executors, qualified as such, and gave a joint and several bond without security, none being required by the will. By its terms, the partnership lasted until 1st January, 1868; after which date James was to be deemed surviving partner. The firm, owed no debts. At the death of John, James owed the firm about $10,000. Between his death and September, 1868, James collected firm assets to the amount of about $6.2,000, nearly all of which were in the year 1868 embarked and lost by him in private cotton speculations. James advanced to Caskie & Bros., of which firm he was a member, $42,608.92, part of the late firm assets held by him as surviving partner, and in 1868 withdrew $40,000 thereof, and lost this sum also in similar speculations. In September, 1868, James K. Caskie died testate, his brothers, Robert A. and Willie H. Caskie, qualified as his executors. He left no personal estate. The object of this suit was to have settlement of the accounts of Robert A. and W. H. Caskie, as surviving executors of John Caskie, and of James E. Caskie, and of the accounts of James as surviving partner of J. & J. K. Caskie, and payment to the plaintiffs of the amounts coming to them as legatees under the will of their grandfather, John Caskie, deceased. The chancery court decreed that for the funds of the estate of John Caskie, deceased, which came into the hands of James K. Caskie, whether as surviving partner or otherwise, the latter was liable in his capacity as executor of John Caskie, and that Robert A. and W. H. Caskie were also liable as his sureties in their joint executorial bond, and that R. A. & W. H. Caskie were liable also for balance due by Caskie & Bros., composed of themselves and James E. Caskie, to J. & J. E. Caskie, or to estate of James K. Caskie; and that they and John N. Caskie are liable for balance due by Caskie & Bros., composed of themselves and John W. Caskie, to J. & J. E. Caskie, or to the estate of James E. •Caskie, deceased.</p> <p>From this decree the said Robert A. Caskie and William H. Caskie, executors as aforesaid, obtained an appeal to-this court. The remaining facts and points relied on are fully stated in the opinion of the court.</p>

Charles T. Binford, John H. Greanor, William S. Lonnan, Robert Stiles, William L. Cowardin, John Johns, Jr,, W. D. Adams and J. H. Adams, respectively, were the plaintiffs, and the Universal Life Insurance Company of New York was the defendant.

<p>1. Election—Jointure—Dower.—Doctrine of election is founded on the same reasons and governed by the same rules when applied to a widow claiming dower as to any other case.</p> <p>2. Oue entitled to benefit under an instrument must, if he claims that benefit, abandon every right the assertion whereof would defeat, even partially, any of the provisions of that instrument.</p> <p>3. If the widow’s taking dower would interfere with any of the provisions of the will she'must elect. Dixon v. McCue, 14 Gratt. 540.</p> <p>4. Testator died February, 1S62, leaving considerable estate in lands, slaves, dioses in action, &e., and a widow and five children. He gave each child $1,000 in money or land, and to the widow all the residue, durante mduitate, or if she married, only one-half of the same; how much not fully ascertained, but much more than her distributive share, and more than all the children together received. She did not renounce, but enjoyed these provisions, or those thereof which the war spared, for thirteen years.</p> <p>Held :</p> <p>The provision was intended for her jointure, under Code 1860, ch. 110, § 4, and she elected it.in lieu of dower.</p> <p>Chancery Practice—Dower.—On credtiors’ bill against testator’s widow and others, all his real estate was, in 1872, so far as necessary to pay his debts, decreed to be sold, except the widow’s dower right therein. Part of that real estate was one moiety of a tract of land and mill, which un- , der the will his son-in-law S received, and S and wife had sold and conveyed same to R, to whom belonged the other moiety. In 1S75 she filed her bill to have dower assigned her in said moiety, alleging that “she had been lawfully deprived of the provisions made for her by the will,”-seeking relief under Code 1860, ch. 110, § 4. The bill did not show how much or what part of those provisions she was deprived of, or that her dower had b'een excepted from sale; and all the legatees, not even S and wife, were made parties. To this bill R filed demurrer and answer, and denied her claims. Bill was filed at May rules. Court began June 1st, and June 3d, 1S75, court below overruled the demurrer, and, against R’s'protest and motion for continuance, decreed that she was entitled to dower, as she claimed in her bill.</p> <p>Held:</p> <p>1. Demurrer should have been sustained for want of specification in the bill as to the extent to which she was deprived of the provisions made for her by the will, and for want of proper parties.</p> <p>2. The cause, not being in a condition to be heard, should have been continued, to give opportunity for necessary accounts, enquiries, and evidence.</p>

D. Barrett is plaintiff and Euclid Borland is defendant. The opinion of the court fully states the facts and the instructions asked for and points 'raised. Verdict for plaintiff for $>1,000 damages and judgment accordingly. From this judgment defendant obtained a writ of supersedeas.

Writ of error to judgment of corporation court of Norfolk city, in action of ejectment wherein Rebecca A. Camp, in her own right and as committee of John J. Camp, was defendant, and N. F. Cleary, R. St. J. Cleary and Margaret Cleary were plaintiffs. This is a sequel to the case of Taylor v. Cleary and als., 29 Gratt. 448.

<p>The case is fully set forth in the opinion of the court.</p>

Thomson against John M. Thomson and others, heirs of James Thomson, deceased, for the purpose of selling decedent’s land and dividing the proceeds. Decree of sale was rendered in 1858—John P. Phillips, counsel for plaintiff, and James V. Brooke, counsel for the defendants, were appointed commissioners to sell, and required to give bond in the penalty of $10,000, with good security. Phillips executed the bond. Sale made to Brandt Kincheloe.

<p>Writ of error to judgment of circuit court of Richmond city, in asswinpsit, by Jesse Prunty v. W. T. Mitchell and W. W. Cobbs, partners trading in the name of Mitchell & Cobbs, and sequel to the case of Prunty v. Mitchell & Cobbs, reported in 30 Gratt. 247. It did not appear on the pleadings, but it was disclosed by the evidence that W. A. J. Finney was a joint contractor with Mitchell & Cobbs in the contract whereon the action was brought, and, on motion of the defendants, the court instructed the jury to find for the defendants, if from the evidence they believed such to be the fact. The jury so found. Plaintiff excepted, as well on the ground of misdirection by the court as of its refusal to set aside the verdict and grant him a new trial-</p>

<p>1. Commissioner op Sales.—The bond with security required of him is for the benefit of those entitled to the proceeds. If he collects without giving bond, and they ratify his act and look to him for payment, no one else can complain or claim that any equity is raised in his favor.</p> <p>2. Idem—Subrogation.—If purchaser should have to pay a second time, he would be substituted to the creditor’s rights under a decree requiring the commissioner to pay them.</p> <p>3. Idem—Lien of decree—Case at bar.—Commissioner made sale under de~ cree, and received one-third of purchase-money, without giving bond as required; sale reported and confirmed and decree entered directing him, out of funds reported in Ms hands, to pay certain creditors therein mentioned, which he failed to do. The decree was docketed, and five days later he conveyed in trust his own real estate to secure his creditor, L. On bill by creditors in the decree mentioned, to enforce it against that real estate, he having become insolvent—</p> <p>■Held :</p> <p>1. Under Code 1873, ch. 182, §§ 1 and 2, the decree against commissioner had effect of a judgment, and being docketed, L was affected with notice of same, though purchaser paid commissioner in his own wrong.</p> <p>2. L has no claim to be subrogated to the rights of the creditors against the purchaser, having no equity superior to that of the latter.</p> <p>4. Lloyd v. Emis' Adm'r, 29 Gratt. 598, explained and limited to the facts of that case.</p>

Boston & Co. v. Chesapeake and Ohio Bail-road Company. The bill was first filed in the chancery court of said city, then removed to the circuit court of Henrico county, and thence to the circuit court of said city, where was then pending a suit for the foreclosure of certain mortgages on the property, franchises, &c., of said company, and in suit plaintiffs were allowed to assert their claim.

<p>1. Bankruptcy—Fraudulent deeds.—Whether sound law or not that “a suit to set aside fraudulent deed made by bankrupt before his bankruptcy can only be maintained by his assignee,” there must be an averment that there was such assignee duly appointed and qualified before the matter will be considered.</p> <p>2. Chancery Practice—Amended answers.—The cases are exceptional where amended or supplemental answers are allowe,d; never in material matters, unless upon evidence of surprise, or of mistake of a fact or a date. Code 1873, ch. 167, § 35, allowing answer to be filed at anytime before final decree has no reference to amended or supplemental answers.</p> <p>3. Fraudulent Deed—Suit to set aside—Case at bar.—Bill filed hy a creditor in 1874 to set aside as fraudulent deed made by J. befoi e he became a bankrupt (if ever he was one) to W, was taken for confessed as to grantor, but answered by grantee, who denied the fraud but made no reference to the bankruptcy of J or to his assignee. After long litigation, the fraud has been established and plaintiffs’ rights fixed by this court, and the land, one subject of controversy, sold and sale confirmed, and the value of the personalty (the other subject) has been ascertained by a commissioner and the cause awaits the action of the court on exceptions to his report.</p> <p>Held :</p> <p>1. After all this it is too late to allow the alienee to file a supplemental answer and set up a new defence, the effect of which, if valid and sustained, would be to turn plaintiffs out of court.</p> <p>2. The supplemental answer, filed after this cause had been twice remanded, contains no averment of the appointment and qualification of any assignee in bankruptcy of J.</p> <p>3. The defence actually set up in that answer is a plea of res judicata. That plea is of no effect, because the plaintiffs in this case were not parties in the case wherein the decree relied on was rendered.</p> <p>4. This court cannot decide upon the exceptions to the commissioner’s-report, because the court below has not passed on them ; but does decide that the order awarding an issue is erroneous.</p>

T. Madigan, for W. W. Wood, against H. O. Ferrell, C. C. Anderson, E. C. Ferrell, Patrick Edmunds, A. Barksdale, Jr., assignee in Bankruptcy of E. C. Ferrell, Bankrupt; and H. A. Edmundson, sheriff and administrator of CaleB Anderson, deceased.

Allen, for liimself and all otlier creditors of William R. McVeigli, against William R. McVeigli, J. H. McVeigli, tlie Bank of tlie Old Dominion, and others. Opinion of the court fully states the facts and the points raised.

<p>1. Mabbied Women—Separate estates.—Settled doctrine in this State is, that a married woman, as to her separate estate, has the samey'üs disponendi as is possessed by a feme sole over her property, unless her powers of alienation, are restricted by the instrument of settlement.</p> <p>2. Idem—Idem.—As an incident of thisyas disponendi, she may charge her property with the payment of her own debts, or those of her husband or of any other.</p> <p>3. Idem—Idem—Case here.—Heal estate is granted to trustee to hold same to the separate use of his wife during her life; to sell same* and reinvest proceeds as she in writing may direct; that she shall have right to dispose of it, or of any other exchanged for it, by will; but if she fails to do so, then trustee to hold it in trust for her children until the youngest is twenty-one yeas of age, when he shall convey it to them absolutely. Trustee made note to bank, in which wife united, and in deed of trust to C to secure it. 0 sold and conveyed the property under the trust deed to him to F. Afterwards the wife and her two children filed bill to annul the conveyance.</p> <p>Held :</p> <p>1. Neither trustee nor wife had power to dispose of the fee, except for purpose of reinvestment in other property, to be held on same trusts.</p> <p>2. But as to her life estate—subject to the rights of her appointees by her will, should she use her power of appointment, and to the rights of her children, should she not use that power—she has unrestricted power of disposition.</p> <p>3. The sale and conveyance by F is operative and valid so far as the life estate of the wife shall last; but inoperative and void so far as they affect the remainder in fee expectant on that life estate.</p>

M. Waller, executor of Robert R. Waller, deceased, against Charles S. Langhorne. On a previous day of the term, the cause had been set for trial on the 26th proximo, for convenience and by agreement of counsel. On 20th the court adjourned to, but did not sit on, 23d December; yet on 26th December it sat and tried and determined the cause and entered judgment against the defendant for $2,750, with interest, and subject to certain credits, as therein stated.

<p>1. Homestead.—Primary object of Code 1873, ch. 183, § 7, is to authorize sale of homestead and investment of proceeds in a new one, to be held on like terms as the original. In it there is nothing to authorize debtor, who has squandered one homestead, to appropriate another against subsequent creditors.</p> <p>2. Idem—Supplemental*—Debtor may supplement original homestead by new one, so as to make the aggregate equal (not exceed) the maximum of $2,000.</p> <p>•3. Idem.—TMs privilege, once fully exercised, is regarded as exhausted.</p> <p>4. Idem.—New homestead created, determines the original one, if the property exempted under the latter remains in existence. At all events, debtor will be required to account for its value in ascertaining the amount he is entitled to under a new assignment.</p> <p>5. Estoppel.—If he has squandered, or does not account for, the property set apart for his original homestead, he cannot found a claim to a new one by attacking validity of the deed of his own making, which created the original.</p> <p>6. Case here.—H, whilst residing in L in 1874, by deed recorded, declared his intention to hold exempt as his homestead personal property to the amount of $1,468. Having removed to B and become indebted, he creates in 1878 a new homestead of property valued at 61,844.50, by recorded deed, wherein he assails the validity of his original homestead deed, without accounting for the amount thereof, thereby seeking to hold exempt from his creditors an aggregate of $3,312.50 worth of property, and obtained an injunction to restrain sale under executions levied. Creditors moved to dissolve, but the circuit court perpetuated the injunction.</p> <p>Held :</p> <p>1. Debtor must be charged with $1,468, the value of the property set apart as exempt by the original homestead of 1874.</p> <p>2. And he is entitled to enough of the property levied on to make the aggregate of his exemptions equal the maximum of $2,000; and no more.</p>

■ Error to judgment of circuit court of Richmond city in action of covenant brought by James Hayes and Mary Hayes, his wife, against the Virginia Mutual Protection Association on a policy of life insurance taken out by Patrick McNamara on 6th November, 1877, for the sole benefit of his daughter, the said Mary Hayes. The other facts and the pleadings necessary for a proper understanding of the case are stated in the opinion of the court.

<p>1. Loans of Chattels.—If not in writing, duly recorded, loans of chattels are, under Code 1873, ch. 114, § 3, void as to creditors of loanee, but valid as between the parties, however long loanee may keep possession.</p> <p>2. Idem:.—The operation of the statute will be avoided, by the lender’s resuming possession, or granting the chattels to another, by writing duly recorded, within five years.</p> <p>3. Tdem:.—If no writing declaring such loan be recorded, or no demand be made by lender, and pursued by course of law, for more than five years after possession commenced, the loan is void as to the loanee’s creditors, whose rights cannot be affected by lender’s subsequent resumption of possession. But the creditors meant are those whose debts were contracted before the resumption of possession, or conveyance of the chattels, by the lender—they having given credit to loanee on the apparent ownership of the property.</p> <p>4. Case at Bar.—A slave was placed as a nurse, by a father, in the possession of his married daughter, without any proof whether it was intended as a loan or a gift. The slave remained there more than five years, and had three children, when in 1853 the father conveyed the slave and her children to S, in trust for the separate use of his daughter, by deed duly recorded. Afterwards three judgments were obtained against daughter’s husband, and executions levied on these slaves. Two of the debts were shown by the record to have been contracted since the deed was recorded. As to third, it did not appear. S, the trustee, obtained an injunction—afterwards dissolved.</p> <p>Held :</p> <p>1. The deed vacated the loan, not as to husband’s debts contracted before, but as to those contracted after its recordation.</p> <p>2. The onus was on the creditor to show that his debt was contracted before the deed was recorded, in order to render the property liable therefor.</p>

<p>Appeal from decree of circuit court of Fluvanna in suit of James A. Shepherd, adm’r of E. C. Strange, dec’d, against M. S. Strange, widow, and Annie B. and Myrtie, infant daughters of the decedent. The object was to settle the estate. Ths cause was referred to a commissioner to ascertain assets and liabilities. He returned a report on 9th of April, 1875 (during term), and it was confirmed on 10th of same month. It showed liabilities amounting to $2,253.50, whereof $679.68 were homestead-waived; $807.52 as to which it was unascertained whether they were so or not; and as to the residue there was no waiver. Of the personal assets, which nominally amounted to a much larger sum, there had been gotten in only $421.85 beyond what was retained to pay expenses of administration and costs of suit. The widow filed her petition, claiming homestead, which the court below, by decree of 12th April, 1879, assigned her, before the residue of the estate was gotten in and applied to the payment of the debts, or before it was ascertained whether or not it would be sufficient to satisfy all the debts; whilst it seemed probable the exempted property would ultimately have to be resorted to, to some extent at least. From those two decrees Strange’s administrator appealed to this court.</p>

<p>1. Married Women—Separate estate—Jus disponendi.—Deed conveying property to separate use of wife gives her the absolute dominion over it of a feme sole. Of course, that property can be sold under deed of trust executed on it by her and her husband to pay their bond.</p> <p>2. Assignor—Assignee—Equities.—Assignee of non-negotiable dwse takes it subject to all debtors’ equities against assignor existing at time or before notice of assignment, and based on honest transactions between him and assignor.</p> <p>3. Idem.—Private agreement, unknown to assignee, cannot be set up as defence to payment by one who lends to another his credit in the form of a note.</p> <p>4. Case here.—P and wife were indebted to L, who had in hand money belonging to E, which L desired to borrow. L told E he could lend it at large interest, well secured, and was authorized to do so. L got from P and wife their bond, secured by deed of trust on her separate estate, but had to give her his own more-negotiable note for same amount. Both P and wife knew this was to enable L to raise money. E, ignorant of the note given by L to Mrs, P, became assignee for full value of the bond and deed of trust of P and wife. No fraud was imputable to any of the parties.</p> <p>Held :</p> <p>E is entitled to enforce the deed of trust for the payment of his debt, unaffected by any supposed equities between L and P and wife.</p>

<p>Appeal from decree of circuit court of Madison county, upon a rule awarded in' the chancery cause of Shirley v. Shirley, &c., against Charles Williams, at the instance of A. E. Blakey and another commissioner in that suit. Upon the hearing of the rule, which Williams answered, the circuit court pronounced against him a decree, from which he obtained an appeal to this court. Opinion states fully all the facts and proceedings necessary to a proper understanding of the case.</p>

<p>1. Subrogation.—Where one pays a debt of another voluntarily, the principle of subrogation applies not, but only applies where he is surety for the debt, or is compelled to pay it in order to protect his own interests, or where the debt is assigned to him on payment, or where he pays it under a special agreement that he shall be substituted to the rights of the creditor.</p> <p>2. Case here.—Father conveyed property in trust to secure two debts to son and to trustee of his wife, by deed in statutory form, giving no priority. One of the debts secured to son arose out of a judgment against father, prior to deed, in favor of a third person, which son had paid, but no assignment thereof had been made. It was only referred to in the deed as an execution against father, which son had paid. Upon question whether this was entitled to priority—</p> <p>Held :</p> <p>1. It is not. All three of the debts must be paid pari passu.</p> <p>2. But even if this judgment had been the property of son, by bona fide purchase for value, and a lien on the land when it was conveyed, son lost his priority by unequivocally accepting the deed, recognized no priority, as attested by his execution thereof.</p>

•Error to judgment of corporation court of Alexandria, rendered 16th October, 1879, on a writ of scire facias sued out by the Bank of the Old Dominion to revive a judgment theretofore obtained against W. 1ST. McVeigh. The scire facias was sued out 5th September, made returnable to October rules, was executed 15th September, 1879, and was so returned. At October rules judgment was entered against defendant for failure to appear.

<p>Error to judgment of corporation court of Alexandria, rendered 23d April, 1878, in action of Robert T. Lucas, sergeant, &c. (for use of ¥m. L. Allen, trustee), against Horace B. Clafflin, Edward C. Eames, Horace J. Fairchild, Wm. S. Dunn, Dexter JST. Force, Daniel Robinson, and John Clafflin, partners under firm name of H.' B. Clafflin & Co.; Augustus-D. Juillard, Gustavus Landsburg, James Landsburg, and H. O. Claughton. It was an action on an indemnifying-bond, and verdict and judgment were for the defendants, and the plaintiffs obtained from one of the judges of this court a writ of error. Opinion of the court fully states the instruction given on motion of the defendants and excepted to by the plaintiffs, and all the facts of the case.</p>

<p>Error to judgment of circuit court of Prince William county, in action of ejectment of J.B. T. Suttle against the Richmond, Fredericksburg and Potomac Railroad Company. The object of the suit was to recover a tract of twenty-five acres of land lying in and along the Chappanannic creek in said county. Plaintiff based his right of recovery upon an equitable estoppel (established by parol evidence) to defendants, claiming title under an older deed from the same persons through whom plaintiff claimed. The facts of the case are fully stated in the opinion. Verdict and judgment for defendant. Writ of error and supersedeas awarded plaintiff by one of the judges of this court.</p>

<p>1. Limitation—Appeal.—An appeal from a final decree of 2d June, 1877, was allowed 8th May, 1879; but the bond was not given until 9th June, 1S79.</p> <p>Held :</p> <p>Under Code 1873, ch. 178, § 17, the appeal must be dismissed.</p> <p>2. Appeal—Bond.—Assignee in bankruptcy filed a bill in the State court, which was dismissed with costs; that assignee dying, his successor presented petition for appeal. It was insisted that no bond was required, as the appeal was partly to protect decedent’s estate.</p> <p>Held :</p> <p>Bond was necessary, as the second assignee had nothing, as such, to do with his predecessor’s estate.</p> <p>3. Chancery Practice—Final decree—It was insisted that the decree ' was not final, because rendered in vacation and the judge afterwards gave written instructions to the clerk how to tax the costs.</p> <p>Held :</p> <p>Decree, dismissing bill with costs, must be final; rendered in vacation, it takes effect from time it is entered of record; and the judge cannot afterwards impart to it a different character.</p> <p>4. Limitation.—The period between death of first and appointment of second assignee will be included in the two years allowed for appeal. The statute does not begin to run until some person exists capable of suing; but having once begun, is not stopped by death or other disability.</p>

<p>Appeal from decree of circuit court of Norfolk city in suit of Oscar F. Baxter against Willis B. Sanderlin, perpetuating an injunction to prevent encroachment on plaintiff’s easement appurtenant to his estate “Woodland,” over the defendant’s estate “Fairfield.” From this decree Sanderlin obtained an appeal to this court. Opinion of court gives the facts.</p>

<p>1. Judges—Terns.—Under the constitution o£ this State judges can be elected only for full terms. The rule of stare decisis applies here.</p> <p>2. Idem—Salaries.—Nor can the salary and allowances of a judge be diminished during his term.</p> <p>3. Estoppel.—Between a citizen and the State owing him money for services rendered, no question of estoppel can arise.</p> <p>4. Waiver.—Accepting commission under second election and diminished salary and allowances under the acts of the legislature, without protest or objection, does not constitute a waiver of his lawful rights—acceptance of part of a claim is not a satisfaction of the whole.</p> <p>5. Case at bar.—M was on 25th March, 1875, elected judge of eighth judicial circuit, to fill vacancy in term which would have expired 31st December, 1878. The term of a circuit judge is eight years. In December, 1872, the legislature passed an act that all judges elected to fill vacancies should be for the unexpired terms o£ their predecessors. When M was elected, a circuit judge’s salary was $2,000; but in March, 1878, an act of assembly was passed reducing it to $1,600 after 1st January, 1879. At re-election of circuit judges, in December, 1878, M was reelected judge of that circuit; was commissioned, received the reduced .salary without objection after 1st January, 1879, till bis death, which occurred 4th March, 1880. On petition by his administrator against the auditor, to recover the difference between the original and the reduced salaries from 1st January, 1879, until 4th March, 1880—</p> <p>Held :</p> <p>The administrator of M is entitled to recover.</p>

<p>Error to judgment of circuit court of Fluvanna county abating attachment issued by a justice in suit of Sublett & Cary against W. E. Wood. Opinion states fully the facts of the case.</p>

<p>Appeal from decree of the circuit court of Danville, rendered 12th July, 1881, in suit of William jST. Shelton and others against the town of Danville and others.</p> <p>The council of that town, on 21st January, 1881, passed a tax bill on the same day it was introduced, containing an exemption of building associations, &c., from taxation, and imposing on every one engaged in purchasing leaf tobacco a tax of ten dollars and one per cent, on the capital employed, and fifteen cents on every thousand pounds purchased each month. Shelton and other citizens obtained an injunction, on the ground that the tax bill' was illegal in the manner of its passage, in its exemption feature, and also in the inequality of the tax imposed on every thousand pounds of tobacco purchased each month, without regard to the value thereof. The town filed demurrer and answer to the bill, and took numerous depositions, and moved to dissolve the injunction. ' The circuit judge overruled the demurrer, decreed the tax bill illegal, and perpetuated the injunction. From that decree the town obtained an appeal. The remaining facts and points are fully stated in the opinion of the court.</p>

<p>Appeal from decree of circuit court of Richmond city-rendered 12th December, 1881, on proceedings had on petition filed by James M. Davidson, and James M. Dill, guardian of John G. Davidson, infant child of John Davidson, deceased, against Putney & Watts and others, the petition having been filed in the suit of Miller’s Ex’or v. The Board of the Literary Fund and others. James M. Davidson acquired under the will of Samuel Miller, deceased, and subsequent' compromises, an undivided moiety of two houses and lots in said city, for his life, remainder to his issue living at his death, if any, and if none, to himself in fee.</p> <p>John Davidson acquired the other moiety under like conditions, but dying, it descended on his infant son John G. Davidson. James M. Davidson conveyed the reversion of his moiety, contingent on his dying without issue living at his death, to E. G. H. Kean, John B. Eobinson, C. L. Mosby and Edward S. Brown, being the interest conveyed to him by the compromise. Mosby died leaving several infant heirs. On proceedings instituted by James M. Davidson and James Dill, guardian as aforesaid (to which Kean, Mosby’s infants and the other vendees of said reversion were not at first parties), the houses and lots were decreed to be sold. James Thomas bought one at $18;005, and the other at $28,0C0. The sale was reported. Thomas refused to comply with the terms of the sale. A rule was awarded against him to show cause why he should not be compelled to comply. To the rule he answered that the title was defective in that, first, there were on the property six unreleased trust deeds duly recorded as of 1817,1818,1819,1832, 1841 and 1843, respectively; secondly, the reversion in one moiety was outstanding in K. and in the infant heirs of C. L. M. and others not parties to the suit; and, lastly, nine feet of one of the lots had been set apart and used as an alley in common. The proceedings were amended so as to cure the second specification. The record discloses that M. and those claiming under him, had, since March, 1845, actual, continued, notorious and adverse possession of both lots, including the alley, whereon the houses are, under deeds duly recorded.</p> <p>After the sale was confirmed, Thomas prayed the circuit court for a reference to a commissioner to report on the title, but made then no objections to the confirmation of the sale on the ground of irregularities in the same. The court confirmed the sale, and refused to refer the case to a commissioner to report on the title, in an elaborate opinion, which is set forth in full in the record.</p> <p>From the decision confirming the sale, Thomas obtained an appeal to this court. The other facts are sufficiently set forth in the opinion of Judge Staples.</p>

<p>Appeal from decree of circuit court of Charlotte county, at its September term, 1879, in suit of Frank G. Baldwin v. Baldwin’s Executrix. Decree against the executrix, who obtained an appeal to this court. The facts and the defences made are fully stated in the opinion of the court.</p>

<p>Error to judgment of circuit court of Richmond city in suit of C. W. Clemmitt. and Myra P., his wife, who was Myra P., daughter of George W. Minnis, against the New York Life Insurance Company. In November, 1857, G. W. Minnis, of Virginia, insured his life with defendant for $5,000 for the sole benefit of his wife, Mary Jane, with the further condition stated in the policy, that, “in case of the death of said Mary Jane before the decease of the said George W. Minnis, then the amount of the insurance shall be payable after her death to her children.” Myra P. was her only child. Insured paid the premiums up to the war. Shortly after the war, he, by his agent, went to see the president of the company, who said the policy was annulled by the war and repudiated it. Mary Jane died in 1868. This suit was brought in 1874 to recover damages for the breach of the policy. The insured died in April, 1877, pending the suit, and judgment was rendered March 3d, 1879. At the trial a circular issued by defendants showing the progress of the company, its mode of doing business, &c., was offered in evidence and excluded. So also was a witness offered to prove that it was a matter of general notoriety or common rumor, in Petersburg, Va., where the policy was taken out and the insured resided, that the agent of the defendant there had publicly announced, the first year of the war, that he would not receive premiums for the company during the war.</p> <p>Instructions were asked for on both sides, viz :</p> <p> Plaintiff’s Instructions. </p> <p>1. The policy of insurance in the declaration set forth did not lapse by the war separating the parties, so that premiums could not be received or paid as contemplated in that contract. And if the jury shall find from the evidence that, within a reasonable time after the close of the war, the defendant, on being approached by a representative of the beneficiaries of the policy, wholly repudiated the same as a contract binding on it, it was not necessary to make formal tender of the premiums which had accrued during the war, nor of subsequently accruing premiums, to continue the obligations of the defendant under the policy. And if the jury shall further find, from the evidence, that after the death of Mrs. Minnis, on being approached in behalf of Myra P. Minnis, defendant again repudiated the policy as a contract binding on it, because of a supposed lapse by reason of the war, such repudiation was a breach of the contract on the part of the defendant,.and Myra P. Minnis had an election to recover her damages for said breach or to wait the maturity of the contract and recover under the same.</p> <p>2. If the jury shall find from the evidence that there was a breach of the contract, as alleged in the declaration, it is for the jury to assess the damages to the plaintiff by reason of said breach, and the jury may consider the actual period of the death of George AY. Minnis in estimating said damages.</p> <p>3. In the absence of evidence to show a less damage to the plaintiff—the period of the death of George AY. Minnis having been ascertained—the measure of damage to the beneficiary named in the policy at the time of the breach would be the then value of a promise to pay the amount of the policy at the ascertained time of the death of Minnis, less the sum of all the premiums which would have accrued up to that time, with interest on the same; and as this balance would carry interest to the time of recovery, substantially the same result would be reached by deducting the whole amount of unpaid premiums at the time of the death from the whole amount of the policy and adding interest on the residue, to the time of recovery.</p> <p>And the defendant asked the court to give the following two instructions:</p> <p> Defendant’s Instructions. </p> <p>1. The defendant asks the court to instruct the jury that, if they believe from the evidence that the defendant repudiated its contract in June or July, that a cause of action then accrued to Mary Jane Minnis, the wife of George WMinnis, if she were then alive, and that if they believe that she died after the cause of action accrued, the same survived to her personal representative, and not to the plaintiff, Myra P. Minnis, and they should find for the defendant.</p> <p>2. The defendant asks the court further to instruct the jury that, from the period when the war began until it closed, the contract sued on in this case was suspended, and that as soon as the war closed and communication was reopened between Petersburg, the residence of M. J. Minnis, and New York, the residence of the defendant, it became and it„was the duty of the said Mary Jane Minnis, within a reasonable time thereafter, to tender to the company the payment of all premiums due said company, with interest thereon, and unless the jury believe from the evidence that such tender was made in a reasonable time after the reopening of communication, as aforesaid, then they must find for the defendant.</p> <p>The court below gave the first instruction asked for by the defendant, but refused to give any of the others, and the plaintiff excepted. Verdict and judgment for defendant, and plaintiffs obtained a writ of error.</p>

<p>1. Trustee.—Failing merchant assigns his goods and dioses in action to a trustee for his creditors. The goods were scheduled at $1,301.07, but sold for $775.83.</p> <p>Held :</p> <p>Under the circumstances, trustee is not liable for difference.</p> <p>2. Idem—Burden of proof .—Certain dioses were reported by commissioner as “¡doubtful” at date of assignment. Before trustee can be charged therewith, c. q. ts. must prove that those dioses might have been collected by due diligence.</p> <p>3. Idem—Personal representatives.—Liability of trustee for collection of dioses in action would seem different from that of personal representatives, as laid down in Crouch v. Davis, 23 Gratt. 62.</p> <p>4. Practice—Costs.—Except in case of palpable error, this court, affirming a decree on its merits, will not reverse it with respect to the costs.</p>

Gayle, administrator with the will annexed of H. Buff, deceased, and as trustee under said will for Amelia N. Cutherell and her son, Henry, daughter and grandson, and Barbara Buff, widow of testator. Amelia was the wife of Samuel Cutherell, who died in 1875.

<p>Removal of Causes—Noip-resident defendant—Case reopened.—Non-resident Ins. Co. is sued by citizen of Virginia on a contract made outside this State. On affidavit that defendant is a non-resident corporation, having effects in P county in this State, attachment is sued out to subject those effects to plaintiff’s claim, and order of publication made and executed. Neither process in the suit nor copy of attachment is served on defendant. Judgment is rendered April, 1878, against defendant. In September, 1878, defendant petitioned the court to reopen and rehear the case. Case being reopened, defendant filed petition setting forth that amount in dispute was over 8500, and controversy between citizens of different States, tendered the usual bond with security, and prayed' the removal of the cause to the circuit court of the United States for the-eastern district of Virginia.</p> <p>Held :</p> <p>1. Suit not against foreign corporation doing business in Virginia,. under Code 1873, ch. 166, § 7, but under ch. 148, § 1 and § 20.</p> <p>2. Under ch. 148, § 27, defendant was entitled to have the case reopened and reheard.</p> <p>3. Under laws of United States defendant was also entitled to the removal as prayed for, the motion therefor having been made at first term, at which the cause might have been tried. See Harter v. Kernochan, 13 Otto, 567.</p>

<p>Error to judgment of corporation court of Alexandria in action of ejectment brought by William H. Burke against Robert C. Lee and Mrs. A. M. Lee. Opinion of court fully states the facts of the case.</p>

<p>Subrogation—Covenant of grantee of trust-deed debt.—In 1859 S sold to C for $15,000 cash one-half of Hygeia Hotel, and they became partners in running it. Sale was subject to debt of $5,000, secured to W by deed of trust on hotel; this debt S and C agreed should be paid by them equally and jointly. It was in four instalments—first was paid by S-before sale to W;' second and third were paid by S and C; fourth remains unpaid. The hotel was destroyed in 1862 by Federal orders. S became and remains insolvent, and in 1864, without consideration, released 0 from all liability on the agreement to pay W’s debt. On bill' in chancery to collect this instalment from S and C—</p> <p>Held:</p> <p>1. O, as grantee of half the trust property, assumed payment of half the trust-deed debt as part of the consideration, and became personally liable to W.</p> <p>2. As between S and _C, the latter is principal and former surety. W is entitled to all collateral securities held by his debtor, S, and hence may be subrogated to the benefit of the covenant of C with S to pay half the debt.</p> <p>3. It may be that W, not being a party to the agreement between S and O, could maintain no action at law. His remedy is in chancery, where all the parties may be convened and the matter closed.</p> <p>4. It is manifest that as between S and C, it was intended that the-latter’s liability should be for only one-half the debt.</p> <p>5. The release of S to O, however effectual as between the parties,. was and is invalid as to W.</p> <p>6. Qucere: Where grantee assumes payment of the mortgage debt for the indemnity of the mortgagor, and not for the better security of the mortgagee, can grantor release grantee so as to defeat mortgagee’s right against the latter on his promise to pay the debt?</p>

<p>Appeal from decree of hustings court of Danville in suit of Lelia Gray, Robert F. Gray, her husband, and W. P. Averett, her trustee, against John P. Lipscombe, to enforce specific performance of a purchase by him of the female, plaintiff’s real estate, made at auction on printed advertisement, signed by herself, husband and trustee. Court below dismissed the bill, and the plaintiffs appealed to this court. The facts and the grounds of defence are fully set forth in the opinion of the court.</p>

<p>Appeal from decree of circuit court of Charlotte county in suit of T. E. Spaulding, for W. H. Pettus, suing for himself and other creditors of William E. Green against William E. Green individually and as trustee under the will of William B. Green, deceased; Jennie E. Green, his wife, Booker Green, John Friend and Jennie, his wife; C. E. Green, Baylor Green, Edward H. Green, Kenzie Green, J. C. Green, Berryman Green, Hunter Green, Katie Green and Shepherd Green. To the hill the defendants filed their demurrer and answers. The court overruled the demurrer, and on the answers and the evidence entered its decree in favor of the plaintiff. The facts are sufficiently stated in the opinion of the court.</p>

<p>Appeal from the decree of chancery court of Richmond city in suit of William P. Moseley, trustee, &c., against William E. Sparrow and others.</p> <p>In February, 1875, Moseley made his note for $1,200, payable at one year, and placed it in the hands of Brown, a broker, to raise money on it. Brown sold the note to Sparrow for $1,056, who knew nothing of the purposes for which it was made. When the note fell due, Moseley paid Sparrow, through Brown, the interest at 12 per cent. ($144), to prevent collection. A year later he paid a like sum for the like purpose. In February, 1878, he made a new note for $250, payable at one year, and, through Brown, sold it to Sparrow for $225, and with $120. thereof he paid the interest on the $1,200 note for a year longer for same purpose. In 1879 the property—whereon a deed of trust had been executed by Moseley to secure these notes—was advertised by the trustee for sale. Moseley, as trustee, &c., then filed his bill alleging usury in the inception of both notes and in the payments of 12 and 10 per cent, for three years for forbearance. An issue was directed to try whether or not there was usury in the transactions. The court instructed the jury to “exclude from their consideration the sums of money actually paid by Moseley as interest, as those sums could not be recovered in this proceeding; and that, unless from the evidence they believe that the notes were usurious in their inception, or that there had been an agreement for the payment of usurious interest upon those notes, which yet remains unpaid, they must find for the defend-' ants.” Under this instruction the jury found the transactions not usurious, and the court decreed accordingly; and from this decree Moseley, trustee, &c., appealed.</p>

<p>Appeal from decree of chancery court of Richmond city in suit of John Lindsay against James Murphy to enforce a judgment lien on real estate duly set apart as latter’s homestead, on the ground that the latter had lost or abandoned his homestead privilege in-Virginia by removal therefrom. Decree for defendant. Plaintiff appealed. Opinion states the case.</p>

<p>Appeal from order of circuit court of Alexandria city, rendered 26t]i May, 1880, on an application filed by Tilomas Tbornton in suit therein pending, wherein the Washington City Savings Bank et als. were plaintiffs, aiid Thorp’s administrator and others were defendants, for an order restraining O. E. Hine, appointed receiver by a previous decree, from interfering with his possession of part of the real estate in controversy, under a lease made since the appointment of the receiver, by Charles E. Rittenhouse, one of the parties to the original suit and the owner of the land. The receiver refusing to recognize the lease, and Thornton failing to surrender possession of the land, the former caused to be issued a writ of possession against the latter, who in turn applied for an order to restrain the execution of the writ. The circuit court denied the application,-and Thornton appealed. Opinion sufficiently states the remaining facts.</p>

<p>1. Judges—Terms, salaries, waiver.—Under the constitution judges can he elected for only “full terms their salaries cannot be diminished during their terms; accepting, under second election, diminished salary under the acts of assembly, without protest, constitutes no waiver of their rights. See Montague’s Adm'r v. Massey, Auditor, ante p. 307.</p> <p>2. Case at bab.—H’s term as county judge expired 31st December, 1873, but he resigned in 1872. The term of county judges is six years-N was in January, 1873, elected to fill Jiis unexpired term, under act of assembly construing the constitution. Then the salary was $800, but it was reduced 1st January, 1874, by act of assembly, and made payable out of county treasury. N received the reduced salary from the county without protest, during his whole term—he having been again elected at the general election in December, 1873. On application by N for mandamus to the auditor for difference between $800 and the amount received out of county treasury—</p> <p>Held :</p> <p>Petitioner is entitled to the difference and to the mandamus to compel auditor to pay it.</p>

<p>1. Subrogation—Insurer.—R’s wood, piled on line of B railway and insured with W F Insurance Co., is destroyed by the Railway Co.’s negligence, and paid for by the Insurance Co.</p> <p>Held :</p> <p>The latter is subrogated to R’s right of action against the Railway to the extent of the amount paid under the policy.</p> <p>2. Idem—Release.—Action against the Railway Co. for the amount paid under the policy, in the name of R, for use of the Insurance Co., can not be released by R, and a plea setting up such a release as a defence to the action, is properly rejected.</p> <p>3. Evidence.—Testimony is admissible to prove that the locomotive which fired R’s wood, had, on other occasions, emitted sparks and set fire to property along the railway, in order to show negligence and defects of machinery.</p> <p>4. Railway Company is liable where fire is attributable to the negligence of its agents, or to its want of proper machinery and spark arresters, or to the accumulation of combustible matter along its line.</p> <p>5. Idem.—Employing an agency so powerful and dangerous as steam, a railway company is liable for all injuries caused by its omission to employ the best mechanical contrivances and inventions in known use, to prevent burning private property by the escape of sparks and coals from its engines.</p> <p>6. Gross Negligence.—The circumstances disclosed'by the record constitute a case of gross negligence.</p> <p>7. Instructions.—It is the settled rule, that though an instruction may be erroneous, this court will not, for that reason, grant a new trial, if it be manifest that the excepting party could not have been prejudiced by it.</p>

Gannt and William L. Royall, plaintiffs, v. William E. Cameron, S. Brown Allen, D. R. Reveley, individually and as members of the board of public works of Virginia; said Cameron, F. S. Blair, attorney-general, and R. R. Farr, as members of the board of education; said Allen, and Reveley, and H. H. Dyson, as commissioners of the sinking fund; said Allen, as auditor of public accounts ; said Reveley, as treasurer of the State; said Dyson, as second auditor; said Farr, as…

<p>1. Statutes—Construction.—Act of January 14th, 1882, “ to prevent frauds on the Commonwealth,” &e., applies not to coupons detached from bonds issued under the funding bill of 1879, but only to coupons detached from bonds issued under the funding bill of 1871.</p> <p>2. Idem—Idem.—Preamble cannot enlarge the scope of a statute; and can he resorted to for explanation only when the language of the enacting clauses is obscure or ambiguous.</p> <p>3. Idem.—A tax-payer tendered coupon detached from bond issued under funding hill of 1879, in payment of his taxes to the collector, who refused to receive it.</p> <p>Held :</p> <p>The refusal was not justifiable under the act of January 11th, 1882, and the taxpayer was entitled to a mandamus to compel the collector to receive the coupon.</p>

<p>Writ of error to judgment of circuit court of Floyd county in suit of John L. Teel and other heirs of Amelia Teel, deceased, against Henry Bolling, to recover three hundred and eighty-two acres of land in Floyd. Amelia Teel was a daughter of John Ferguson, deceased, in the partition of whose real estate in 1823, this tract was assigned by the commissioners to her husband, “ Mankin Teel, as legatee.” The defendant claimed by deed signed by Man-kin Teel and Amelia, his wife, to Jacob and John WHelms, in 1827. In the certificate of the privy examination of Mrs. Teel, the justices failed to state that “the deed was explained to her.” Pending the suit several plaintiffs aliened their interests in the land. Mankin Teel diedin 1865; his wife in 1870. Opinion of the court states the remaining facts! Judgment for plaintiffs, and writ of error awarded defendant.</p>

<p>1. Trust Deeds—Attachments—Priorities.—Debtors in HC grant all their property, including choses in action, due from their debtors in Y, and secured on land here. After recordation of deed in ST C, but before its recordation in Y, a creditor of grantors, living in V, attached the choses and the land securing them. In contest for priority—</p> <p>Held :</p> <p>The deed, though unrecorded in V, being prior to the attachment, prevails over it.</p> <p>2. Chancery Practice.—The trustees petitioned to be made parties to the attachment suit, but no order making them such had been entered. A decree, purporting to be “ by consent of parties through their counsel,” was rendered, ascertaining plaintiff’s debt and directing sale of land conveyed to secure the chose attached, and payment in full of plaintiff’s debt. The counsel differed as to the extent of “the consent” given. The trustees enjoined the execution of the decree of the attaching creditor, who answered. Both causes being heard together—</p> <p>Held:</p> <p>1. The decree-should have been set aside.</p> <p>2. Injunction by new bill was not the regular mode to set aside the interlocutory decree of sale, but it was equivalent in substance, and allowable.</p>

<p>Manufacturing Corporation—Trust deeds to secure loans—Case at lar.— In 1867, the II M Co. obtained an act authorizing it to borrow not exceeding $30,000, without regard to rate per cent, prescribed by law or to V. C. 1860, ch. 57, § 34. Then the Co; executed coupon bonds of $500 each, sixty in number; and to secure them executed a trust deed, signed by the president, and having the corporate seal affixed by the secretary and duly acknowledged, conveying to G & H, trustees, real estate and machinery. It was conditioned for the sale of the trust property on default in the payment of any of the bonds which were executed and issued by the U M Co. Of these sixty bonds thirty-one were purchased by the S B of T, and nine by A P H. The other twenty were never issued. In 1869, the U M Co.,'desiring to sell the machinery, induced the S B of T and APH to release it, on assurance that the said twenty bonds had not been and would not be negotiated. The release, however, was executed not only by the S B of T and APH, but also by K, the president of the U M Co., who signed “ as holder of twenty bonds of $500 each as collateral for the payment of the floating debt of the U M Co.” In 1879. the trustees being required, sold the trust property to P for $13,500. P excepted to the title, urging, among other objections, that the trust-deed had not been properly executed ; that it infringed vested rights of the creditors of the U M Co. in giving preference; that the claim of the holders of the floating debts of the U M Co. to the twenty bonds, should be settled. Thereupon, the trustees brought their bill to determine all questions. The S B of T, A P H, and the U M Co. answered. W and the M B of B came in by petition claiming benefit of the twenty bonds held as collateral for payment of the floating debts, whereof they held large parts. The cause having been referred, the commissioner directed to ascertain the names, amounts, and priorities of the creditors of the U M Co. entitled to participate in the sale money, reported adversely to W and the M B of B, representatives of the floating debts. They excepted to the report. Court below overruled the exception. Exceptors appealed.</p> <p>Held:</p> <p>1. A deed of a corporation executed by the president under the seal of the corporation, is a valid mode of executing the deed of trust in this case.</p> <p>2. The act authorizing the U M Co. to borrow money as it did, was a valid and constitutional act.</p> <p>3. Independently of that act, the lien created by the trust deed was valid, securing contemporaneous loans and giving no preference among existing creditors within the meaning of Y. C. 1860, ch. 57, § 34.</p> <p>4. That the S B of T and A P H, holders of the only bonds that were duly executed and issued by the XT M Co., and which have the security of the trust deed, are entitled to the entire sale money fund.</p> <p>5. That K’s executing the release as he did, was neither proof of an existing trust in favor of the holders of the floating debt, nor the creation of such trust, but unauthorized, inconsistent with the conditions of the release by the S B of T and A P H, and inoperative.</p>

<p>1. Contracts—When time is of the essence.—Where under contract a right has passed, and purchaser takes possession and makes improvements, that right will not be divested by failure to do the act at the appointed time. But where no right is acquired until the doing of some act by the purchaser stipulated to be done, the performance of the act is a condition precedent, and time becomes of the essence.</p> <p>2. Idem—Idem—General .rule.—In unilateral contracts, time is of the essence, to be modified by peculiar circumstances, accounting for delay, and showing party in default still entitled to relief.</p> <p>3. Idem—Consideration.—“ Love and affection ” is not enough of itself to warrant a decree for specific performance.</p> <p>4. Idem—Idem—Nudum pactum.—A promise to pay a debt for which the promisor is already bound, is mere nudum pactum, and adds nought to the original obligation.</p> <p>5. Case at bar.—G rented land to son-in-law at annual rent, for a term of years. Before close of term, he in-writing promised son-in-law that if, by a certain specified time, he would pay G rent already in arrear, and rent to accrue at end of term, and other amounts owing him, he, G, would in consideration of the love and affection he bore his daughter, convey the land in fee to her for separate use. Son-in-law made the payments to G, but not by the time specified in the agreement. G’s circumstances having changed, he refused to convey the land to his daughter. On bill filed by son-in-law and wife against G for specific performance—</p> <p>Held :</p> <p>1. Payment by son-in-law, within the time specified, was a condition precedent to his acquiring right to specific execution-of the contract.</p> <p>2. Payment after the time specified entitled him to no such right.</p>

Law. The decision of the circuit court being against the complainants, they obtained an appeal from one of the judges of this court. The proceedings and the facts of the case are fully stated in the opinion.

Rawley against Jeremiah Davis, B. W. Dobyns, Franklin Derting, S. M. Fulton and others. The facts and proceedings are indicated in the syllabus and fully stated in the opinion of the court. From the decree against them the defendants obtained an appeal to this court.

<p>1. Joint Tenants—Fonts and profits.—Occupying tenant is liable to their excluded co-tenants, for a reasonable rent for the common property in the condition it was when he took possession. Such is the rule in Early and Wife v. Friend and als., 16 Gratt. 21, which overruled the English doctrine. He is not accountable for issues and profits actually made by the application of his labor, skill, and capital to the common property.</p> <p>2. Idem.—In ascertaining what is reasonable rent,-where the report of the master is concurred in by court below, this court will not reverse except in case of palpable error.</p> <p>3. Idem—Abatement.—In absence of express covenant to pay rent, tenant i$ not liable for same, where the premises are destroyed—whatever the rule may be in case of such express covenant.</p> <p>4. Idem— Case at bar.—S B & Co. being joint tenants of King’s Salt Works with the representatives of J W, deceased, and in possession under an expired lease, held over, without consent of those representatives, from 1st January, 1861, until 1st January, 1869. Under decree to ascertain what would be a reasonable annual rent for S B & Co. to pay those representatives, during that period under the circumstances, and what payments they have made thereon, and to compel S B & Co. to pay them their proper portion thereof, there was a report of the master to whom the cause was referred, to which both parties filed exceptions, and from the decree of the court below thereon, there was an appeal to this court.</p> <p>Held:</p> <p>1. Had King’s Salt Works been rented out in 1860 in anticipation of the expiration of the lease to P, it would have been for five years from 1st January, 1861, and none could have anticipated the extraordinary demand for salt resulting from the effectual blockade of the southern ports; and it is safe to say that the yearly rent would not have exceeded that stipulated for in the previous leases. After 1862, no renting could have been effected, except for Confederate money. S B & Co. doubtless reaped large profits from the employment of labor, skill and capital in the business, and from sagacious investment of Confederate money. Their co-tenants, though excluded from the common property, have no right to share in those profits, but only a right to their proportion of what would be a fair yearly rent for that property in the condition wherein it was when S B & Co. took possession thereof. In view of these facts and principles, the plan of settlement whereby the judge of the court below has worked out a very difficult problem, though it may not attain complete justice, seems freer from objection than any other which has been suggested.</p> <p>2. That the circumstances disclosed by the record, evince that the rent for the year 1861 has been satisfied by S B & Co.</p> <p>3. That no extraordinary depreciation of the currency or changes of value having taken place in 1862, the best rule for ascertaining a reasonable rent for that year is to take the ante-bellum rent of $22,000, and allow a rent exceeding that sum in the same proportion in which the production of 1862 exceeded the ante-bellum production ; which plan gives $66,000 rent for that year.</p> <p>4. This rule not being suitable for the years 1863 and 1864, for those years the best plan is to take the annual rent of $300,000 in Confederate money, paid by the State for the use of five hundred kettles as the basis of calculation—which will give as the amount of rent a sum exceeding $300,000 in Confederate money, as the number of kettles exceeded five hundred; that is, $86,000.</p> <p>5. That from the destruction in December, 1864, of the salt works by the Federal forces, until the repair thereof, the rent should be abated. '</p> <p>6. That for 1866, in the state of things then existing, the ante-bellum rent of $22,000 would appear to be reasonable.</p> <p>7. That for 1867 and 1S68, the fairest test of rental value is the sum for which the property was rented in the fall of 1868, viz: §31,200.</p> <p>5. Construction or Contract.—\V B, with others, in September, 1S5S, executed an instrument agreeing to unite with P in leasing King’s salt works to the extent of their interests, for a term of ten years. Accordingly, in October, 1858, P executed the lease to S P ¿5 Co. W B owned one-ninth of the King estate, and claimed one forty-eighth thereof acquired by purchase, and commonly known as the “ Allen interest,” and then in litigation, afterwards decided favorably to his claim.</p> <p>Held:</p> <p>The lease to S A & Co. embraced W B’s “Allen interest” as well as his other interest in the said King estate.</p>

West against The LynchburgEire Insurance Company, on a policy effected on a storehouse and contents. Verdict and judgment for plaintiff. .Defendant obtained writ of error and supersedeas. The opinion states the case.

M. Wagner and sons against B. O. Johnson and Elizabeth, his wife,- Haywood Cox, W. W. Johnson (late trustee), Andrew Hampton, Hastin Fulton and B. O. Johnson (present trustees), John Johnson, B. F. Johnson, A. M. Johnson and R. K. Johnson.

Hull against C. C. Fields and D. G. Thomas. The object of the suit was to rescind a contract for the sale of a certain patent right by defendants to plaintiff, and to annul the deed conveying to them certain real estate in consideration therefor. The contract was made, and the real estate was situated, in Smyth county. The defendants did not reside in ‘that county, and the summons to answer the bill was not there served on them.

Hutcherson and Cleopatria, his wife, against Abram B. Hancock. In April, 1871, Cleopatria Hancock, a minor, filed a bill in the county court of Franklin county, by B. P. Hancock, her next friend and guardian, against said A. B. Hancock, who who had been her guardian, for final settlement. Defendant filed his answer, and the usual accounts were taken.

<p>Appeal from decree of corporation court of Danville. Opinion states the facts.</p>

<p>Error to judgment of circuit court of Eloyd county in a proceeding by Peter L. Hancock and John T. Agee agains Isaac Wade, John Wade, and Josiak Bryant. Opinion states tke case. Argued at Wytkeville, but decided at Staunton.</p>

<p>Error to judgment of circuit court of Rockingham county, rendered 15th. March., 1879, in action of debt wherein William R. Warren, administrator of Milly Rice, deceased, was plaintiff, and Mary B. Brown was defendant.</p> <p>A. W. & J. G. Brown, on 16th February, 1854, made a note for $3,392.66, and on 16th February, 1857, made another note for $391.39, both payable on demand to Milly Rice.- Payments were made on these notes. J. G. Brown died in 1857, leaving his widow, Mary Brown, his sole legatee, devisee and executrix. A. W. Brown died in 1861 intestate, and his son B. S. Brown and his widow Mary B. Brown qualified as his personal representatives. In 1868 B. S. Brown died, leaving Ms mother, Mary B. Brown, surviving administratrix. On 24th February, 1869, when the largest of said notes was clearly barred by the statute of limitations, William B. Warren, agent of Milly Bice, sent a message to Mary B. Brown that said notes were in his hands for settlement; that Milly Bice designed giving one-half of the amount thereof to her daughter, Mary Brown, widow and executrix of J. G. Brown, as part of her legacy, if she, Mary B. Brown, as administratrix of A. W. Brown, would execute new bonds to Milly Bice for the other half of the said notes; and that by her doing so, he, as agent for Milly Bice, would release A. W. Brown’s estate from all further liability for one-half of the notes. Mary B. Brown and her legal adviser believed that said notes were valid, subsisting debts, for which A. W. Brown’s estate was then bound; and he advised her to accept the proposition. On 24th February, 1869, she executed, as administratrix of her intestate, to Milly Bice a bond for $1,900, with interest from 1st July, 1869, payable at one day after date, and another for $491.55 payable 1st July, 1869.</p> <p>Later, suit was brought on these bonds by Warren, administrator of Milly Bice, deceased, against Mary B. Brown; defendant tendered two special pleas, which were substantially to the effect that plaintiff’s intestate, Milly Bice, had in her lifetime fraudulently procured from her, as administratrix of A. W. Brown, deceased, the said bonds, in consideration of ■ one-half of two notes not under seal, which had been executed to Milly Bice by A. W. & J. G. Brown, by falsely and fraudulently representing to her, the defendant, that the said notes were still unpaid, valid, and in full force in law against the estate of A. W. & J. G. Brown; when, in truth, both notes were barred by the statute of limitations; and that this fact was well known to Milly Bice, but was fraudulently concealed from the defendant.</p> <p>Both of these pleas were rejected by the court below, and judgment rendered for the amount of the bonds. On writ of error the judgment was reversed, and the cause remanded with directions that the pleas be received, and the plaintiff required to tahe issue thereon. See Brown v. Rice's Adm’r, 26 Gratt. 473.</p> <p>At the second trial in June, 1877, on the -issues made by said special pleas, there was a verdict for the plaintiff for $195.69, with interest from 1st July, 1869, till paid, pari of the debt in the declaration demanded. This verdict the-circuit court, on motion of the plaintiff, set aside, and granted a new trial. To the decision of the court granting the new trial, defendant excepted and filed her bill of exceptions, which is given in full for the better understanding of the points decided in this cause:</p> <p>Bill of Exceptions.</p> <p>Be it remembered, that upon the trial of this cause, the-plaintiff, to sustain the said action on his part, read in evidence the writing obligatory in his declaration mentioned, and then and there rested his case; and thereupon the defendant, to maintain the issue on her part, read the two notes of A. W. & J. G. Brown to Milly Rice, produced in court by the plaintiff upon a subpoena duces tecum—to-wit one for $3,392.66, dated February 16, 1854, and payable on demand, in words and figures following:</p> <p>■ $3,392.66. On demand we promise to pay to Milly Rice, or order, thirty-three hundred and ninety-two dollars and 66 cents, for value received.</p> <p>Witness our hand, this 16th day of February, 1854.</p> <p>A. W. & J. G. Brown.</p> <p>Endorsements—1855, February 16, by interest paid one year, $203.56. Credit by interest paid for one year, $203.56,, February 16, 1856. Credit by interest for one year, February 16, 1857, $203.56. Credit by interest for one year, February 16,1858, $203.56. February 16, 1859, credit by interest paid for one year, $203.56. February 16, 1860, credit by interest paid you one year, $203.56. February 16, 1861, credit by interest paid for one year, $203.56. By one-half the interest due December 16, 1863, $293.33 from B. S. Brown, administrator of A. W. Brown. Credit by cash paid B. S. Brown, administrator of A. W. Brown, deceased, $70, September 15, 1865. Mrs. Mary B. Brown has executed her note for one-half of principal and interest of within note to July 1, 1869, which releases the estate of A. W. Brown from all liability in this bond.</p> <p>W. B. Warren,</p> <p>Agent for Milly Bice.</p> <p>The other for $391.39, dated February 16, 1857, and payable on demand, in the words and figures following:</p> <p>$391.39. On demand we promise to pay to Milly Bice, or order, three hundred and ninety-one dollars and thirty-nine cents, for value received.</p> <p>Witness our signatures, this 16th day of February, 1857.</p> <p>A. W. & J. G. Brown.</p> <p>Endorsements—February 16th, 1858, credit by interest paid for one year, $23.48. February 16, 1859, credit by interest paid one year to date, $23.48. February 16, 1860, credit by interest paid one year, $23.48. February 16,1861, credit by interest paid one year, $23.48. By $33.26 paid by B. S. Brown, administrator of A. W. Brown, one-half the amount of interest due December 16, 1863. Credit by this amount paid by Mary B. and B. S. Brown, administrator of A. W. Brown, deceased, $54.29, November 24, 1866.</p> <p>Mrs. Mary B. Brown, administratrix of A. W. Brown, has. •executed her note for the one-half of the within note and interest to July 1, 1868, and this releases the estate of A. W. Brown from all liability on this bond.</p> <p>W. B. Wabben,</p> <p>Agent for Milly Bice.</p> <p>Together with the endorsements thereon in the words and figures following, to-wit: (see endorsements above)— 'then the calculation of the amount of said two notes made by William McK. Wartmann in the words and figures following:</p> <p>Statement of calculation dividing bonds executed by A. W. Brown & J. G. Brown to Milly Bice, February 16, 1854, and February 16, 1857 :</p> <p>Bond executed February 16,1854, all interest paid . jointly to February 16, 1861, - - $ 3,392 66</p> <p>Bond executed Februrry 16, 1857, all interest paid jointly to February 16, 1861, - 391 39</p> <p>Amount of both bonds, February 16, 1861, 3,784 05</p> <p>Amount due from J. G Brown’s estate, one-half, 1,892 02J</p> <p>Amount due from A. W. Brown’s estate, one-half, ’ - - - - - 1,892 02</p> <p>Interest paid on A. W. Brown’s one-half by B. S. Brown, administrator, as per endorsement on bonds to December 16, 1863, - $326 59</p> <p>Interest from December 16, 1863, to January 24, 1869, - 579 58</p> <p>' $2,471 60</p> <p>Deduct—</p> <p>Credit September 15, 1865, as endorsed, $70 00</p> <p>November 24, 1866, - - 54 29</p> <p>' - 124 92</p> <p>Amount due on A. W. Brown’s one-half, January 24, 1869, - - - - - $2,347 31</p> <p>The credit of $326.59, December 16, 1863, overpays the interest due at that time, $4.95, which A. W. Brown’s estate must have credit for.</p> <p>Wm. McK. Wartmann.</p> <p>January 22, 1869.</p> <p>Then the receipt of William R. Warren, agent of said Milly Rice, dated February 24, 1869, in the words and figures following:</p> <p>Received, February 24, 1869, of Mary B. Brown, surviving administratrix of the estate of A. W. Brown, deceased, her notes of hand as the surviving representative of said estate, one note for $1,900, dated February 24, 1869, and payable one day after date, and one other note for $491.55, dated February 24, 1869, and payable on or before the 1st day of February, 1869; said last mentioned being for interest due at that date on the half of the two bonds executed by A. W. & J. G. Brown to Milly Rice—said notes being the one-half of two several notes, principal and interest, to February 24, 1869; which notes were executed by A. W. & J. G. Brown to Milly Rice, and it is hereby expressly declared and understood that in consideration of the two foregoing notes of $1,900 and $491.55, the estate of A. W. Brown, deceased, is fully released from all further reponsibility to said Milly Rice on account of the joint notes before mentioned, executed by said A. W. &. J. G. Brown.</p> <p>Given under my hand.</p> <p>Wm. R. Warren,</p> <p>Agent for Milly Rice.</p> <p>Endorsement—Milly Rice’s receipt releasing A. W. Brown’s estate of one-half of a joint note drawn by the firm of A. W. & J. G. Brown in favor of the said Milly Rice. Then the execution in favor of Mary B. Brown, administratrix of A. W. Brown against the goods and chattels of J. G. Brown, deceased, in tlie Bands of Mary Brown, Bis executrix, dated 2d April, 1875, for $5,387.83, witB interest, &c., and tBe returns tliereon, in tBe words and figures following:</p> <p>TBe CommonwealtB of Virginia—</p> <p>To tBe SBeriff of BockingBam county—Greeting:-</p> <p>We command you tBat of tlie goods and cBattels of J. G. Brown, deceased, in tlie Bands of Mary Brown, Bis executrix, late in your Bailiwick, you cause to Be made tBe sum of $5,387.83, witB interest on $3,165.54, part tBereof, to Be computed after tBe rate of six per centum per annum,, from tBe lOtB day of SeptemBer, 1875, till payment, wBicB. Mary B. Brown, administratrix of A. W. Brown, deceased, late in our circuit court of BockingBam county, Bas recovered against Ber as well for a certain deBt as for interest tBereon, wBicB to tBe said in tBe same court were adjudged,. wBereof tBe said J. G. Brown’s executrix is convict as appears to us of record, and tBat you Bave tBe same Before tBe clerk of our said court, at tlie courtfiouse, on tBe first Monday in June next, to render unto tBe said Mary B. Brown, • administratrix of A. W. Brown, deceased, of tBedeBt, interest and costs aforesaid; and Bave tBen and tBere tBis writ.</p> <p>Witness, L. W. GamBill, clerk of our said court, at tBe courtBouse, tBe 2d day of April, 1875, and in tBe ninetynintli year of tBe CommonwealtB.</p> <p>L. W. Gambill, Clerk.</p> <p>Endorsement—June 7tB, 1875. No property found upon wBicB to levy tBis execution. GarnisBee summons executed on Josepli Byrd, Eobert Black, George G. Grattan, and otBers, wBicli was returned to tBe clerk’s office of. tlie circuit court of BockingBam county, Va.</p> <p>Wm. H. Blakemoke,</p> <p>Deputy for D. IT. Eolston, S. B. C.</p> <p>And then proved by the plaintiff that the said writings, obligations in his declarations mentioned, were executed by the defendant to Milly Eice for pne-half of the two notes of A. W. & J. G. Brown for §3,392.66 and §391.39 aforesaid, as stated in the receipt aforesaid; that he believed them to be valid and subsisting debts, and that he knew of no bar of the statute of limitations applying to them, and that he presented the said notes to Koogler, the brother, and, as he believed, the agent of said Mary B. Brown, and that he made no fraudulent representations, nor was he guilty of any fraudulent concealment of facts touching said transactions to said John E. Koogler, or to any other person ; that the said Milly Eice had expressed her intention to give one-half of said two notes to her daughter, Mary Brown, the widow and executrix of said J. G. Brown, deceased, and proposed to take the bonds of defendant for the other half of said notes, and release the estate of A. W. Brown from the residue of said notes; and that he acted as the agent of said Milly Eice in carrying out the purpose of said Milly Eice so expressed; that he made a calculation of the amount then due upon said notes, and then handed the said notes and calculation to John E. Koogler, the brother of defendant, in Harrisonburg, Va., who afterwards had a calculation of the amount due on said notes made by .said Wartmann, which was adopted by him (said Warren); that he drew up the two writings obligatory aforesaid, and handed them to said Koogler for defendant to sign; that he (said Warren) and Milly Eice lived in Harrisonburg, Va., and the defendant lived at Bridgewater, seven miles distant from Harrisonburg; that in a few days thereafter said Koogler returned the said two writings obligatory to the said Warren, with the signature of the defendant thereto ; that the consideration given for the said two writings obligatory, in the plaintiff’s declaration mentioned, was the one-half of said two notes of A. W. & J. G. Brown, and the release or discharge from the other half; that the plaintiff had not spoken to defendant about this matter before nor at the time said writings obligatory were signed, nor since that time, and had not shown said notes to her, but handed them to said John E. Koogler in Harrisonburg, when he got said Wartmann to make said calculation. It was also proved by defendant’s witnesses that J. G. Brown died in 1857, A. W. Brown in October, 1861, and his son B. S. Brown in 1868, and that Milly Eice died in 187-, and William McK. Wartmann died in 187-; that said firm of A. W. & J. G. Brown did business in Bridgewater, in this county, seven miles from Harrisonburg. But the plaintiff denied that he had made any fraudulent representation to the defendant, as he had not spoken to her on the subject,, nor to said Koogler, to whom he handed said notes and calculation, and there was no proof that said Milly Eice had done so; that she was then a very old, helpless,, and infirm lady, and transacted all her business through the plaintiff, who was her grandson; that the credits on the-two notes for interest paid down to February 16, 1861, are in the handwriting of said A. W. Brown; that the credits-on said two notes dated December 16th, 1863, are in the handwriting of Bernard S. Brown, who wás one of the administrators of A. W. Brown, deceased. And this being all. the evidence, the court, on motion of the plaintiff, gave the-jury six instructions, following:</p> <p>1. Mere inadequacy of consideration will not avoid a bond.</p> <p>2. Every bond imports a consideration, and want of consideration is no defence to a bond.</p> <p>3. The jury is confined in this case to the issues presented by the pleas, and in this case the issues raised upon the-special pleas present for the consideration and determination of the jury the question whether or not Milly Eice,. the plaintiff’s intestate, or W. E. Warren, her agent, was guilty of fraud in the procurement of the bonds in suit,. either by fraudulent misrepresentations or by the fraudulent concealment of facts known to them, or either of them, of which the defendant was ignorant; that fraud must not be presumed without proof, but may be shown by the proof of facts and circumstances, which, though not amounting to direct and positive proof, are yet in the opinion of the jury sufficient to establish the esistence of fraud.</p> <p>4. The burden of proving the allegations of the pleas to be true is upon the defendant, and if she has failed to do so the jury must find for the plaintiff.</p> <p>5. If the jury believe from the evidence that Milly Rice handed to William R. Warren the two notes mentioned in defendant’s pleas, given by A. W. & J. G. Brown to Milly Rice, and that said Warren handed said notes to John R. Koogler, the brother and agent of defendant, Mary B. Brown, without any fraud or misrepresentation on the part of Milly Rice or her agent; that said Koogler, as agent for said defendant, had a calculation of the amount due on said notes made by William McK. Wartmann; that he returned said notes and calculation to said Warren, who drew the bonds sued on and handed them, together with the notes aforesaid, to be taken to said Mary B. Brown; that said Koogler afterwards returned said notes and the bonds signed and sealed by the defendant to said William R. Warren, the agent of Milly Rice, who, as agent, gave a receipt therefor, and delivered the same to said Koogler; these facts do not constitute a defence to the bonds sued on, and the jury should find for the plaintiff the amount of the bonds sued on.</p> <p>6. The jury are instructed that the opinion of the court of appeals in the case of Brown v. Rice, in 26 Grattan, read to the jury in this cause, is not evidence in this cause, that opinion being based on the idea that it is necessary for the defendant to prove every material allegation of her pleas, and, if so proved, then that the pleas constitute a defence to the action; but if not proved to be true by the defendant, are no defence to the action.</p> <p>And the court, on motion of the defendant, gave to the jury the fourteen following instructions:</p> <p>1. The jury are instructed that the note for $3,392.66, executed by the late firm of A. YY. & J. G. Brown, to Milly Kice, on the 16th day of February, 1854, and not under seal, was barred by the statute of limitations at the end of five years from its date, as it was payable on demand, and that those five years expired on the 16th day of February, 1859. § 8, ch. 146, of Code.</p> <p>2. The jury are further instructed that a note barred by the statute of limitations cannot be revived or kept in force against the maker of the note by payments made upon such notes, although such payments may be endorsed on the note by the maker of the note. § 10, ch. 146, of Code.</p> <p>3. The jury are further instructed that a note barred by • the statute of limitations can only be revived and put in force again against the maker of the note by a new promise or acknowledgment in writing, signed by him or his duly authorized agent, in which a promise to pay such note :is made or from which a promise of payment may be implied. § 10, ch. 146, of Code.</p> <p>4. The jury are further instructed that an administrator ■or executor cannot revive a debt against the estate which he represents, which is barred by the statute of limitations ; and that if he gives his bond or note or other obli- . gation to pay such debt so barred, he can claim no credit for it against the estate he represents, and cannot recover . it from such estate. The liability and loss fall upon him .•alone. § 7, ch. 128, of Code.</p> <p>5. The jury are further instructed that if they believe, from the evidence, that the said note of A. AY. & J. G. .Brown for $3,392.66, dated February 16th, 1854, and due on demand, was barred by the statute of limitations on the 24th. day of February, 1869, when the defendant gave her bond for the payment of one-half of said note, she cannot have recourse upon the estate of A. W. Brown for any money that she paid or may hereafter pay on her said bond, neither can she get credit therefor in her settlement of said estate, but the whole burden would fall upon her individually.</p> <p>6. The jury are further instructed that if the two bonds or writings obligatory in the plaintiff’s declaration mentioned were obtained from the defendant by Milly Rice, or her agent Wm. Rice Warren the plaintiff, by fraud, actual, implied, or constructive, they are null and void.</p> <p>7. The jury are further instructed that if the two bonds or writings obligatory in the plaintiff’s declaration mentioned were obtained from the defendant by Milly Rice, or her agent, Wm. Rice Warren, the plaintiff, by actual, implied or constructive fraud, but that the said fraud only applied to and embraced the said note of A. W. & J. G. Brown for §3,392.66, dated February 16th, 1864, and due on demand, then the said bonds or writing obligatory of the defendant are only null and void as to the note, and the fraud would not apply to one-half of the other note of said A. W. & J. G. Brown for §391.39, dated February 16th, 1857, and due on demand.</p> <p>8. That the defendant is entitled to any defence in this case, raised by his pleas for which a court of equity could grant him relief, if this cause were now pending in a court of equity on the same issues.</p> <p>9. The jury was further instructed that Milly Erne was bound by any representations made by William R. Warren as her agent, in person, or by and through any other person, to the defendant, by which the bonds in issue were obtained from the defendant, although the representations so made by said Warren or any other person, at his instance, were false and unauthorized by Milly Rice, for she cannot adopt and take the benefit of a contract entered into by her agent and repudiate the fraud on which it was built. See Kerr on Fraud and Mistakes, pp. Ill, 112, 113, and 7 Gratt. 353.</p> <p>10. The jury are further instructed that a fraudulent misrepresentation of a material matter as an inducement to an act or contract by which the other party is actually misled to his injury, maybe by deeds, words or acts, by artifice to mislead, as well as by assertion, and that it is immaterial whether the party thus misrepresenting a fact knew it to be false, or made the assertion without knowing it to be true or false; for the affirmation of what one does not know, is equally, in morals as in law, as unjustifiable as the affirmation of what is known to be positively false; and that, therefore, William R. Warren, acting as the agent of Milly Rice, represented the note of A. W. & J. G. Brown, for $3,392.66, dated February 16th, 1854, and due on demand, as a valid and subsisting debt’ against the estate of A. W. Brown in 1869, he having the note in his possession at that time, and the defendant was deceived and misled by said representations and thereby induced to give the bonds now in suit for one-half of that note, such representations by said Warren were fraudulent as to defendant, whether said Warren knew them to be false or not.</p> <p>11. The jury are further instructed that to constitute a fraudulent representation, the representation need not be made in terms expressly stating the existence of some fact which does not exist. If a statement be made by a man in such terms as would naturally lead the person to whom it was made to suppose the existence of a certain state of facts, and if such statements be so made designedly and fraudulently, it is as much a fraudulent representation as if the statement of an untrue fact were made in express terms. '</p> <p>12. The jury are further instructed that if they believe from the evidence that William R. Warren, acting a.s the agent of Milly Rice, represented to the defendant in person, or by and through other parties or persons, that the said note of A. W. & J. G. Brown, for $3,392.66, dated February 16th, 1854, and due on demand, was a valid and subsisting debt against her husband’s estate, and she was thereby induced to give the bond in suit, in whole or in part, for one-half that note, she is not precluded from setting up this defence, if the said note did not constitute a valid and subsisting debt against said estate, merely because she may or might have had access to further information, for she had a right to rely upon the representations of said Warren, in whose hands the note was, and he, as the agent of Milly Rice, and as plaintiff in this case, cannot complain that she relied too implicitly upon the truth of what he himself stated.</p> <p>13. And that when the consideration is so grossly inadequate and manifest as to shock the conscience, or cause an exclamation of surprise by a man of common sense, proof of fraud may be deduced, from such inadequacy of price, sufficiently strong to set aside the contract or agreement.</p> <p>14. The jury are further instructed that the suggestion of a falsehood, or the suppression of the truth of a material fact that the other party has a right to know, is such a fraud as will render a contract so procured null and void.</p> <p>Whereupon the jury retired to their chamber to consider of their verdict, and thereupon returned into court with the following verdict:</p> <p>“We, the jury, find for the plaintiff f195.59, part of the debt in the declaration mentioned, with interest thereon from the 16th day of February, 1859, till paid.”</p> <p>And then the plaintiff moved the court to set aside said verdict and grant him a new trial, which motion was sustained by the court, and a new trial was accordingly granted; to which ruling of the court the - defendant excepted, and filed this his bill of exceptions, and prayed that the same be signed, sealed, and made part of the record, which was accordingly done.</p> <p>Mark Bird. [Seal.]</p> <p>Defendant then filed two additional pleas, setting forth mistake, as well as fraud, in the procurement and execution of the bonds. At third trial, in March, 1879, evidence was the same as upon second trial, except that of plaintiff introduced by defendant to prove the identity of the papers— a fact provable by no other witness. Verdict for plaintiff for $2,391.55, the debt in the declaration demanded, with interest from 1st July, 1869, until' paid. Defendant excepted to all instructions given on motion of plaintiff and at the court’s own instance. During trial, defendant offered to read so much of the bill of exceptions taken at the second trial as certified the evidence of the plaintiff at that trial, in order to contradict the plaintiff’s evidence at the last trial. This the court forbade. To which ruling defendant excepted, and filed her bill of exceptions, whereof it is necessary to give only so much as sets forth the evidence of the plaintiff at the last trial:</p> <p>And the defendant introduced William E. Warren as a witness in her behalf, and the said William E. Warren testified, in answer to questions propounded by defendant’s counsel, that shortly before the said bonds on which this suit is brought were executed to Milly Eice, the defendant, Mary B. Brown, came to his mother’s home and had an interview with said Milly Eice, who lived at the said home of witness’ mother, and that the witness at that time made a calculation of the amount of the old notes on A. W. & J. G. Brown, in the presence of the said Milly Eice and Mary B. Brown, and that the said old notes on A. W. & J. G. Brown for $3,392.66 and $391.39 were lying on the table in the room where all of said parties were at the time; that said Mary B. Brown saw them, and the witness believed sbe bad tbem in ber bands and examined tbem, but was not positive tbat sbe did so, but was positive tbat sbe bad every opportunity to examine tbem. Tbat afterwards, and before said new bonds were executed, tbe said old notes on A. W. & J. G. Brown were delivered by tbe witness to Jobn R. Koogler as tbe agent of Mary B. Brown; tbat said Koogler bad tbem in bis possession some time before tbe new bonds were executed, and got William McK. Wartmann, a commissioner in chancery, to make a calculation of tbe amount of said notes, and tbat tbe said Koogler returned said calculation to tbe witness; tbat witness, as agent for Milly Rice, drew up tbe two bonds sued on in tbis cause, and sent them or delivered tbem to said Koogler, to be signed by tbe defendant. Tbat subsequent to tbis, tbe new bonds signed by tbe defendant were returned to tbe witness, as agent of Milly Rice, by Hon. Jobn T. Harris, with a receipt in tbe bandwriting of said Jobn R. Koogler, which receipt was signed by said witness as agent for Milly Rice, and is tbe paper introduced by tbe defendant as evidence; tbat tbe witness never made any representations nor misrepresentations to any one in regard to said old notes on A. W. & J. G. Brown, but simply banded tbem to said Koogler as the agent of defendant. That tbe witness wrote tbe receipts on tbe back of tbe old notes on A. W. & J. G. Brown, and signed tbe same as agent for Milly Rice; tbat said Koogler was tbe brother of defendant, and was a business man, and bad been high sheriff of tbe county; tbat there was no fraud nor mistake in tbe transaction, so far as tbe witness knew and believed, on tbe part of any one; tbat tbe witness bad no conversation witb defendant, so far as be recollected, either at tbe time be made tbe calculation at bis mother’s borne or at any other time, and tbat tbe contract or agreement in regard to tbe execution of tbe new bonds and release of A. W. Brown’s estate on the old notes was made on that day at the home of witness’ mother, in Milly Eice’s room, between said Milly Eice and Mary B. Brown. This latter was' in answer to a question propounded by one of the jurors. The witness also proved that in August, 1869, the said Mary B. Brown executed the twobonds of $800 and$l,000, payable to Charles A. Brown and William E. Brown respectively, which are endorsed as credits on the said bond for $1,900 sued on, but that the said bonds were subsequently returned to the defendant and the credit cancelled, as appears by the endorsements made on said $1,900 bond, and that up to that time no intimation was ever given of any defence to the bonds, nor in fact was any ever given until the first suit was brought in 1870; that he was living in Texas, but at Harrisonburg, Ya., on a visit at the time of the arrangement between Milly Eice and defendant Mary B. Brown was made at his mother’s home; that he went to Texas before the war, and thought the law then was that credits on a note took it out of the statute of limitations, and knew no better until after the first suit was brought in December, 1870; that he believed none of the parties intended a ny fraud or improper conduct. It was also proven by Hon. John T. Harris, the defendant’s witness, that the credits endorsed on the old notes on A. W. & J. G. Brown, up to the year 1861, were in' the handwriting of A. W. Brown; that the credits of December 10,1863, on the note for $3,392.66, is in Bernard S. Brown’s handwriting, who was co-administrator with the defendant; that the said B. S. Brown and his sister, Miss M. A. Brown, were the only heirs of A. W. Brown; that the credit of September 15, 1865, on said note for $3,392.66, is in John E. Koogler’s handwriting, and also the credits of November 24th, 1866, on the smaller note; that he never saw the old notes on A. W. & J. G. Brown, and never asked to see them, but that he supposed they were valid, subsisting debts against the said A. W. Brown, although nothing was said by either party on that point, and that no mention was made by any one of the statute of limitations, so far as he had any connection with the matter, and he did not think of the question; that he did not think the defendant Mary B. Brown was at Milly Bice’s house before she came to his house, and did not think she was there on the same day she was at his house, but she spent the day at his house and might have been there after the interview between witness and said Warren, but he did not think she was on that day; that his whole connection with the matter was to ask W. B. Warren whether it was true that Milly Bice desired to'make the arrangement, and that his conversation did not last more than a minute, and he returned to his home and told the defendant that Mrs. Milly Bice would make the arrangement, and advised her to do so, and afterwards he received the new bonds and the receipt in Koogler’s handwriting, from said Koogler, with a request that he deliver said bonds to W. B. Warren, the agent of Milly Bice, and get his signature to the receipt; that he did so, and enclosed the receipt in an envelope directed to said John B. Koogler and left it at J. L. Sibert’s store in Harrisonburg for said Koogler, and that this was all that he knew about the matter, except that William McK. Wartmann and John B. Koogler both died in 1871, after the institution of the first suit, and that the calculation endorsed “ Calculation for J. B. Koogler,” is in said Wartmann’s handwriting. The receipt signed by William B. Warren, agent for Milly Bice, is in said J. B. Koogler’s handwriting, as well as the credit of September 15, 1865, on the note for $3,392.66 and the credit of November 24, 1866, on the small note for $391.39. Said Harris stated that when Mary B. Brown came to his house, she told him she had understood that Milly Bice desired to give one-half the notes on A. W. & J. G. Brown to her daughter, Mrs. J. G. Brown, and to take the note of Mary B. Brown for the other half and release Á. W. Brown’s estate on the old notes, and requested witness to ascertain if it was true, and this is the reason why he went to the fence and conversed with W. B. Warren about the matter. Defendant then offered to introduce and read so much of the bill of exceptions taken in this cause at the last trial of this cause as certified the evidence of the plaintiff in this cause at that trial, in the words and figures following, to-wit: (See first bill of exceptions)—to contradict so much of plaintiff’s evidence aforesaid on this trial as is designed to prove that defendant had seen or had had an opportunity to see the notes of A. W. & J. G. Brown at said Milly Bice’s room, and that the agreement to divide said notes was then and there made by and between defendant and Milly Bice, defendant claiming that she was surprised by this new and additional evidence or statement of the plaintiff, whom she was obliged to call to prove the execution and identity of the papers aforesaid. But on motion of the plaintiff, the court excluded the reading of any portion of said bill of exceptions, to which ruling the defendant excepted, and prayed that this, her first bill of exceptions, taken in this cause upon this trial, be signed, sealed and made part of the record, which is accordingly done.</p> <p>Mark Bird. [Seal.]</p> <p>Defendant also offered herself as a witness in her own behalf to prove what happened at the interview between Milly Bice and defendant, which is mentioned by plaintiff in his evidence. This the court also forbade. And defendant filed her bill of exceptions, which it is unnecessary to insert. During trial, on motion of defendant, the court gave twenty-three instructions, whereof fourteen have already been given; and, on motion of plaintiff, gave fourteen—refusing one—the tenth asked for by him. To the giving whereof defendant excepted and filed her third bill of exceptions, which is here inserted:</p> <p>Be it remembered, that upon the trial of this cause, March, 1879, after all the facts were proved and all the procedings had that are set forth in the defendant’s first and second bill of exceptions taken upon this trial of this cause, and which are made part hereof, and contain all the evidence in this cause offered by the plaintiff and the defendant and admitted at this trial, and after the argument of counsel had been heard, the defendant moved the court to instruct the jury as set forth in the following twenty-three instructions:</p> <p>15. The jury are further instructed that if they believe from the evidence that the pleas filed by the defendant in this cause alleging mistake on the part of the defendant in the execution of the bonds in issue in this cause as set forth in said pleas are true, then they must find for the defendant.</p> <p>16. The jury are further instructed that “mistake may be said to be some unintentional act, omission or error arising from unconsciousness, ignorance, forgetfulness, imposition, or misplaced confidence,” and that there is mistake if a person, through ignorance, is induced to do a thing which he would not have done had he not been in error»And that if an agreement be entered into between two parties in mutual mistake as to their relative and respective rights, either of these parties is entitled to have it set aside. That if a person renews a note or bond, believing that he was liable on the original note or bond, when, in truth, he was uot so liable on the old note or bond, it is such mistake as will entitle him to relief. And that a mistake about private rights will vitiate a contract whether the mistake existed as to one only or as to both of the contracting parties. Kerr on Frauds and Mistakes, pp. 396-417.</p> <p>17. The jury are instructed that mistake may consist of misapprehensions of the law, or of their rights, by both parties, or it may be a misapprehension of the law, or of his private rights, by one of the parties alone. 26 Gratt. 470-471.</p> <p>18. The jury are instructed that if the mistake of law, or as to his private rights, be that of one party only to the transaction, though the other party was not aware of it, a •court of equity may, under the peculiar circumstances of the case, grant relief. But if it appear the- mistake was induced or encouraged by the other party to the transaction, or was perceived by him and was taken advantage of by him, the court will be still more disposed to grant relief than in cases where it does not appear that he was aware of the mistake. 26 Gratt. 471.</p> <p>19. The jury are instructed that if they believe, from the evidence, that the note of A. W. & J. G. Brown for $3,-392.66, dated 16th February, 1854, and due on demand, was barred by the statute of limitations in 1869, and that the defendant believed that it was not barred by the statute of limitations or was ignorant of that fact, and that she, by reason of that belief or that ignorance, gave the bonds in issue in this cause for one-half of that note, believing it to be a valid debt against her husband’s estate, they, the jury, must find for the defendant, so far as that note entered into the bonds in issue in this case.</p> <p>20. The jury are instructed that the ninteenth instruction is true and correct, whether the defendant executed the bond in issue by mistake or by reason of any actual or implied fraud, concealment, or misrepresentation by Milly Eice or her agent the plaintiff, William E. Warren.</p> <p>21. The jury are instructed that where a party to a suit is called as a witness by an opposing party in the same cause, he may be contradicted by the party calling him.</p> <p>22. The jury are instructed that if they believe from the evidence that the defendant was made to believe by any acts, conduct, representations, or concealments of the plaintiff as the agent of Milly Eice, that the note of A. W. <& J. G. Brown for §3,392.66, dated February 16, 1854, was in 1869 still a valid and subsisting debt against tbe estate of A. W. Brown, and that she was thereby induced to execute tbe bond in issue, tbe jury must find for tbe defendant, although they may believe that sbe might have bad access to accurate information, for it was not incumbent on her to make further inquiry, and tbe plaintiff cannot complain because tbe defendant relied too implicitly on tbe truth of what he himself has done or stated.</p> <p>23. If tbe jury believe from tbe evidence in this cause that Mary B. Brown, in executing tbe bonds sued upon, did not intend to bind herself personally, and that Milly Bice did not accept said bonds as tbe personal obligations of Mary B. Brown, but that said bonds were executed and accepted as evidence of indebtedness of A. W. Brown’s estate to Milly Bice, then tbe jury must find for tbe defendant-</p> <p>All of which instructions were accordingly given by tbe court. And thereupon tbe plaintiff moved tbe court to instruct tbe jury as follows, to wit:</p> <p>Plaintiff’s Instillciions.</p> <p>1st. If tbe jury believe, from tbe evidence, that tbe bonds sued on in this case were executed by tbe defendant Mary B. Brown to Milly Bice for one-half of tbe two notes of A. W. & J. G. Brown, and that before said Mary B. Brown executed said two .bonds sbe went to see Milly Bice, and that ¥m. B. Warren, tbe agent of Milly Bice, made a calculation of tbe amount of said two notes on A. W. & J. G. Brown, in tbe presence of said Mary B. Brown; that tbe notes on A. W. & J. G. Brown were lying on tbe table at tbe time in full view of said Mary B. Brown, and that sbe bad an opportunity to see and examine them; that tbe said Mary B. Brown, on another occasion, consulted Judge Harris, as her friend and legal adviser, in regard to tbe propriety of executing the bonds sued on; that said Harris advised her to do so; that John R. Koogler, the friend and brother of Mary B. Brown, took the two notes on A. W. & J. G. Brown to Wm. McK. Wartmann, a commissioner in chancery, and had him make a calculation of the amount of said notes;, that said calculation was accepted as correct, and the said Wm. R. Warren, as the agent of Milly Rice, drew up the-' two bonds sued on and delivered them to John R. Koogler to be executed; that said John R. Koogler afterwards returned said bonds, signed by said Mary B. Brown, to said John T. Harris, with a receipt written by said John R. Koogler, and with instructions to deliver the said two bonds to W. R. Warren, the agent of Milly Rice, whenever he signed said receipt; that said receipt was signed by said Wm. R. Warren, agent for Milly Rice, and delivered back to said John T. Harris, and that said Harris delivered said two bonds to said Warren as agent for Milly Rice, and that subsequently the said Mary B. Brown executed two bonds,, one payable to Charles A. Brown for $1,000, and one payable to Wm. R. Brown for $800, which were to be credited on the $1,900 bond sued on, and were so credited; and that afterwards—to wit: in September, 1870—said two bonds of $1,000 and $800 were delivered back to Mary B. Brown, or her counsel, G. W. Berlin, and the credits agreed to be erased; and that these are all the material facts which have been proven in the cause by the defendant in support of her pleas; then the defendant has failed to prove either of said pleas, and the jury should find a verdict for the whole amount of the bonds sued on.</p> <p>2d. Neither fraud nor mistake is ever presumed, but must be proved by clear and satisfactory proof by the party who pleads or alleges it.</p> <p>3d. Mistake or ignorance of the law cannot relieve a party from a contract or bond in a court of law. Therefore no ignorance of law or mistake of law can be considered by the jury as a defence in this case.</p> <p>4th. The jury are further instructed that ignorance on the part of the defendant, as .to whether the statute of limitations applied, the facts being known to the defendant, is ignorance of law and cannot be used as a defence in this case.</p> <p>5th. The jury cannot presume that the bonds sued on were executed through any mistake on the part of either of the parties, Mary B. Brown or Milly Bice, in the absence of evidence to prove mistake.</p> <p>6. The jury are not trying the question as to whether the old notes on A. W. & J. G. Brown were or were not barred by the statute of limitations, but are simply to say on their ■oaths whether the defendant has proved by clear and satisfactory proof that the bonds sued on were obtained from her by fraud or mistake of facts.</p> <p>7. Though the jury may be of opinion that the defendant, Mary B. Brown, signed the bonds sued on as administratrix of A. W. Brown’s estate, and intending to bind his estate, yet this fact does not enter into the question of mistake or fraud in this case, and cannot affect the right of the plaintiff to recover on said bonds.</p> <p>8. Although the jury may believe that one of the notes given by A. W. & J. G. Brown was barred by the statute of limitations at the time the new notes were executed, yet the jury have no right to presume that Mary B. Brown was ignorant of that fact, and ignorance of the law on that subject cannot be ground of defence in this cause.</p> <p>9. The fact that the plaintiff brought suit on the bonds in December, 1870, against Mary B. Brown as administratrix of A. W. Brown, deceased, and dismissed that case, cannot affect the question of the right of the plaintiff to recover in this action against Mary B. Brown.</p> <p>10. The jury are instructed that this case is being tried in a court of law and is governed by the rules of law.</p> <p>11. The jury have no right to presume that the defendant Mary B. Brown was ignorant of. the law; on the contrary, the presumption of the law is, that everybody knows the law.</p> <p>12. The jury are further instructed that although Rice Warren may have been of the opinion at the time of the transaction that the note for $3,392.66 was not barred by the statute of limitations, and although said Warren may have believed that all parties to the transaction believed it was not barred, this does not constitute misrepresentation, or concealment, or mistake, such as can be relieved in this case, if Mrs. Brown had access to the note, or an opportunity to examine it, and knew its date and when it was due, or if it was placed in possession of her agent before the new bonds, were given.</p> <p>13. The jury are instructed that mistake of law or ignorance of law cannot be used as a defence in this action.</p> <p>And subsequently the court, in answer to inquiries made by the jury, gave the thirty-seventh and thirty-eighth instructions to the jury as follows, to-wit:</p> <p>37th. The jury are instructed that the issues they have been sworn to try in this case are two—one of fraud and the other of mistake; that in order to entitle the defendant to a verdict, the fraud or mistake must be clearly proved; that in deciding said issues the jury must be governed alone by the evidence—that is, the facts and circumstances bearing upon said issues proved in the cause, and must not be influenced by suspicion or conjecture. Before the jury can And that Milly Rice, the plaintiff’s intestate, or the plaintiff, her agent, was guilty of fraud, they must be satisfied from the evidence that the said plaintiff and Milly Rice, or one of them, was guilty of the fraudulent concealment or misrepresentation of some fact or fads which. it was material for the defendant to know, and that she was induced by such fraudulent concealment or misrepresentation to execute the bonds in suit.</p> <p>38th. The mere fact that the old notes, or one of them, were barred by the statute of limitations, is not of itself proof of fraud or mistake, but such fact may be considered in connection with any other fact proved in the cause, going to establish fraud or mistake, if any such facts exist.</p> <p>All of which instructions, except the tenth, which was-refused, were given by the court. But the defendant objected to the giving of said instructions upon the ground that they are illegal and incompatible with the instructions given to the jury on motion of the defendant. But the court overruled the objections of the defendant, to which ruling of the court the defendant excepts, and prays that this his bill of exceptions be signed, sealed and made part of the record, which is done accordingly.</p> <p>Mark Bird. [Seal.]</p> <p>Defendant also moved for a new trial. Motion overruled; and she filed again a bill of exceptions, which incorporated the former bills. To the .judgment setting aside the verdict on the motion of the plaintiff and granting a new trial, and to the judgment refusing to set aside the last verdict on the defendant’s motion, she obtained a writ of error to this court.</p> <p>The remaining facts are set forth in the opinion of the court.</p>

C. Marshall, Jr., against James A. Sharp and Thomas D. Gold. The circuit court having decreed against the defendant,. Gold, who was surety for Sharp, obtained an appeal to this court. The facts are sufficiently stated in the opinion.

M. Conn, trustee. The object of this suit was to compel a release of a trust deed made 20th March, 1856, by said Fultz to said Conn, trustee, .to secure a debt to said Craig, on the ground that the same had been paid in 1863 to the curator. The circuit court decreed in favor of Fultz, and Helsley and Conn appealed. The opinion of the court fully states the facts of the case.

<p>1. Voluntary Conveyances—Limitations—Case at bar.—In 1870, C assigned bona fide, but for no consideration deemed valuable in law, in trust for his wife, two land bonds of about $7,000 each. The assignment was never recorded. In 1871, trustee invested these bonds in a farm for Mrs. C. In 1878, C having died, B, assignee of H, and other creditors of C (whose causes of action did not accrue until March, 1877), filed bill to subject the farm to payment of their debts, on the ground that the assignment of the bonds wherewith the farm was purchased, was not on consideration deemed valuable in law. Mrs. C pleaded the limitation of Code 1873, ch. 146, §16.</p> <p>Held:</p> <p>1. The suit to avoid the assignment was barred.</p> <p>2. Under Code 1873, ch. 146, § 16, the statute begins to run frqm the date of the execution of the deed, and not, as usual under our statutes, from the time the right of action accrued.</p> <p>3. The exceptions to the operation of this statute must be fohnd in the statute itself, “the doctrine of an inherent equity creating an exception where the statute makes none, being now universally exploded.”</p> <p>4. Mere want of knowledge in creditor is insufficient to suspend the statute.</p> <p>5. So far as failure to record goes, the recordation of a mere assignment of chóses in action, is not necessary or proper under our statutes.</p> <p>6. Code 1873, ch. 146, § 20, applies to “indirect ways and means used to obstruct the suit ” by the defendant in the suit wherein the statute of limitations is pleaded, and is not applicable to this case, where the obstruction was by C to the suits against him, the conclusion whereof was a necessary preliminary to the suit to impeach the assignment.</p> <p>2. Idem—Idem.—For history of the distinction between the legislation providing for the running of the statute against suits to avoid conveyances not on considerations deemed valuable in law, and of that providing for the rnnning of the statute in other cases, see opinion of Staples, J. infra, p.</p> <p>3. Idem—Idem—Qucere.—Do the. disabilities of infancy, coverture and the like, affect the running of § 16 ?</p> <p>•4. Common Law Practice—Garnishment.—Judgment creditor garnisheed decedent’s administratrix and got judgment by default, de bonis testartoris. Decedent had owed a debt to the debtor of the judgment creditor, but that debtor had assigned it to B, who sued and got a judgment against the administratrix de bonis testatons—</p> <p>Held :</p> <p>1. The judgment did not bind administratrix personally, because it was de bonis testatoris.</p> <p>2. It did not bind the decedent’s estate in her hands, because it is well settled that process of garnishment at law will not lie against personal representatives.</p> <p>3. A court of equity will not decree the payment out of the decedent’s assets of a judgment obtained either by the collusion, or the neglect of the administratrix; and if she be precluded by the decision of this court in Haseltine & Walton v. Brickey and als., 16 Gratt. 116, from filing a bill of interpleader, there is nothing in that decision to prevent the parties entitled to the fund from filing such bill, or otherwise showing that two creditors are claiming the same debt, and that both cannot be entitled to payment.</p>

Rixey, assignee of Richard L. Patterson, was plaintiff, and W. P. Hall, T. L. Bondurant, A. J. Bondurant, A. Moseley, G. Moseley and R. L. Patterson were defendants; and in second whereof Douglass H. Gordon was plaintiff, and the plaintiff and the defendants in first suit, with the executors of T. M. Bondurant, deceased, were defendants.

Appeal of Inicien B. Robinson from a decree of circuit court of Botetourt county, dissolving an injunction and ordering a sale of Ms real estate, rendered 3d June, 1880, in a cause wherein he and his wife were complainants, and Robert F. Mays, trustee, Samuel Obenshain, James McDowell and others were defendants. Opinion sufficiently states the case.

<p>Error and supersedeas to judgment of circuit court of Roanoke county, construing tke act of assembly approved February 14, 1882, Sessions Acts 1881-2, pp. 120-121, and granting license to Funk & Son, applied for by James Ckalmers, James S. Yeatman and otker citizens. It was agreed by tke parties tkat tke decision of tkis court on tke application skould stand for its final decision. It was argued at Wytkeville and decided at Staunton.</p> <p>Tke opinion states tke case.</p>

Appeal of Mrs. Franklin Little from decree of circuit court of Clarke county, in three suits heard together, viz: Fowle, Snowden & Co. v. Franklin Little, wife and als.; W. L. Chipley and als. v. Same, and Sarah M. Bowen v. Same. The facts essential to the understanding of the case are sufficiently stated in the opinion.

<p>1. Girts, &c.—Insolvent debtors cannot release or surrender without consideration, rights available to their creditors any more than they can give away their property.</p> <p>2. Subrogation—Surety—Creditor.—Surety is entitled to all means of payment held by creditor against principal debtor; and creditor hath reciprocal rights to all securities which principal debtor may have furnished for surety’s indemnity.</p> <p>3. Idem:—Voluntary release—Case at bur.-—Insolvent committee of lunatic sister made trust deed to secure, first, K and A, his sureties in his bond as committee, and J, his surety in debt to C; afterwards, other debts. Lunatic was supported by committee, who received her estate, but charged her no board. Reasonable charge for board would absorb her estate and leave no liability on the sureties on his bond. J died insolvent without paying anything on the debt for which he was surety. On bill to distribute the trust funds—</p> <p>Held:</p> <p>1. Committee was entitled under Code 1873, ch. 82 § 48, to apply lunatic’s personalty to her support, so far as nece.-sary, and having maintained her out of his own. means, has a claim against her estate for his reimbursement, which claim he has no right to release, and thus put a burden on the sureties on his bond.</p> <p>2. Though J died insolvent without paying the debt for which he was surety, the creditor is entitled to have the debt paid out of the trust fund provided by the principal debtor for J’s indemnity. -</p>

<p>Appeal from decrees of the circuit court of Clarke county pronounced May, 1880, and November, 1880, respectively, in proceedings in equity under Code 1873, ck. 148, § 11, wkerein IT. L. Boyce and J. T. Wrigbt were complainants, and William E. McCaw, survivor of himself and T. I). McCaw, late partners in the name of T. D. McCaw & Co., were defendants.</p> <p>Boyce & Wright bought of T. D. McCaw & Co., ten tons of Whann’s Super-Phosphate, and for it gave their note for |610.35, with nine per cent, interest, payable to said firm at six months. On it suit was brought.</p> <p>Boyce & Wright filed special pleas under Code 1873, ch. 168, § 5. At the trial, however, the pleas were withdrawn, and judgment was entered on the- note. Boyce & Wright then brought their bill in equity, alleging breach of warranty and failure of consideration in the sale of the phosphate for which the note was given on which the judgment was rendered, and obtained an injunction to the enforcement of the judgment. On demurrer to the bill being sustained, the injunction was dissolved. Later, under the statute in such case provided, they sued out an attachment in equity against William E. McCaw, who had become surviving partner, and a non-resident of this state, on a claim for damages, and filed their bill alleging breach of warranty and fraud in the procurement of the contract for the sale of the phosphate, and the insolvency of the said firm of T. D. McCaw & Co., and caused the attachment to be levied on the money in their hands due by the note whereon the judgment had been rendered, which judgment William Byrd, as special receiver, had, by order of the court, been directed to collect. William E. McCaw appeared, and filed demurrer and answer to the bill, denying its every material averment, and moved to abate the attachment. In May, 1880, the circuit court heard the demurrer and overruled it, but sustained the motion to abate the attachment, and retained the cause to be decided upon the issues in fact raised by the pleadings.</p> <p>At November term, 1880, there having been no testimony tafeen, the court heard the cause upon the bill and the answer and the exhibits filed, and dismissed the cause with costs to the defendants. From these decrees, abating the attachment and dismissing the cause, the said Boyce & Wright obtained an appeal to this court.</p>

C. S. Lee and als., and of Hilleary, Wilson & Johnson v. Same. The first was a lien creditor’s suit. The second was a suit against C. S. Lee and wife on a note made by them to the complainants. They were consolidated and heard together. Miss A. L. Tebbs was one of the creditors whose lien was reported.

v. Pliilip Hansucker et als., to sell land to satisfy judgment and trust liens. Three joint trustees were substituted for the original sole trustee, and decreed to make sale, without giving the debtor a day for redemption. Two of them made and reported the sale. Han-sucker and Baker & Bros, excepted to confirmation of sale, because of the inadequacy of the price.

Smith against E. Jacqueline Smith and others. Dr. Philip Smith died intestate in 1863, leaving as his heirs at law his four children, E. Jacqueline, Warren C. and J. Phillip Smith, and Louisa, wife of Dr. William A. Bradford; also 715 acres of land and personalty, including bonds on his sons exceeding $10,000 in amount. E. Jacqueline Smith qualified as administrator with William D. Smith as his surety.

<p>1. Jurisdiction—Final decrees—Subsequent proceedings.—After final decree the court has no further jurisdiction; either of the subject matter or of the parties, and all subsequent decrees and orders, entered without notice to the parties, are void.</p> <p>2. Idem—Statute of limitations—Case at bar.—Against A, in Ohio, J obtained a -final decree to foreclose a mortgage securing two notes, and received all of first and part of second note. Twelve years later, without notice to A, a decree was entered for balance of second note. In the interval, J filed his bill, in this State, to attach A’s land for the balance. A answered that the cause of action arose July, 1868, and the suit was not brought within five years thereafter. J then filed his supplemental bill, exhibiting a transcript of and setting up the last Ohio decree as a defence against the plea of the statute of limitations. To-this A demurred and plead nul tiel rebord.</p> <p>Held :</p> <p>Tlie Ohio court having no jurisdiction of the cause when its last decree was entered, the decree is Void, and the plea of nul tiel record must be sustained.</p> <p>2. The lex fori governs, and the limitation is five years from rise of cause of action. The action was barred when brought, and the original bill must be dismissed.</p> <p>3. The supplemental bill makes no valid defence against the plea of the statute of limitations. The transcript of the Ohio record referred to and filed with that hill, on demurrer, is considered as much a part thereof as if set out in Tuza verba.</p>

<p>1. BailboadS—Negligence—Case at bar.—Action against B. B. Co. for four head of stock killed by its trains. First and second counts allege that the animals were killed by the negligence or improper conduct of defendant’s agents. Third and fourth counts contain no such allegation. As to the killing of three of the animals, there is no evidence of negligence. But as to the fourth, there is ample. Defendant demurred to plaintiff’s evidence.</p> <p>Held:</p> <p>1. The third and fourth counts are fatally defective, and are not cured by the verdict under the statute of jeofails.</p> <p>2. That statute is intended to cure defective statement of cause of action, but not a statement which makes no case.</p> <p>3. There being no evidence of defendant’s negligence in killing the jack, the bull and the cow, there can be no recovery therefor; but as to the horse, it is otherwise.</p> <p>2. Idem—Idem.—In such cases the proper inquiry is—“Did the company’s agents "use reasonable care in running their trains to avoid injury to plaintiff’s property? ” Unless the injury is alleged and proven to have been caused by them negligence, or misconduct, the action cannot be maintained.</p> <p>3. Idem:—Demurrer to evidence.—By defendant company’s demurrer, it must be held to admit all plaintiff’s evidence and all inferences justly deducible therefrom; and to waive all its own evidence conflicting with plaintiff’s, and all inferences deducible from its own evidence (though not in conflict with plaintiff’s), which do not necessarily result therefrom.</p>

<p>Appeal of Newton Switzer from decree of circuit court of Botetourt county, rendered October, 1880, in chancery suit of Madison McCulloch, the grantee of C. C. Spears, against him. The object of the suit, and the pleadings and the facts are fully stated in tlie opinion; but the compromise in writing therein referred to is in the words and figures following, to-wit:</p> <p>Whereas a change was made by C. C. Spears in his lifetime in the channel of Mill creek, just above the mill-dam of Switzer & Waskey, which it is claimed by the latter has resulted injuriously to their water supply, and since the death of Spears, M. McCulloch has become the owner of the tract of land on which the said mill-dam is situated; and claim having been set up by Waskey & Switzer for compensation for the injury mentioned, and also for the restitution of the channel and flow of the water, as it was before the said change was made—this agreement of comproniise of all matters pertaining thereto has been made, between the said Switzer & Waskey and the said McCulloch and W. A. Glasgow, executor of C. C. Spears, viz: That the said Switzer & Waskey, on their part will at their own costs and charges restore their water-flow and acquit and release all claims for injury thereto, now and hereafter, and the said McCulloch and Glasgow, executor, on their part, in consideration of the premises, agree to pay to Switzer & Waskey $500, and also in addition to the costs lately adjudged in their favor against the said McCulloch in an action of damages in the county court of Botetourt, the said McCulloch & Glasgow, agree to pay a fee of $100 to William M. Lack-land and J. W. Johnston each—they being the counsel of Switzer & Waskey in the said suit. It is farther agreed that McCulloch will remove his fence off the bank of the mill-race from the present water-gate at the lower end of the garden near the turnpike road, so as not to interfere with the cleaning out of. the race; McCulloch to place the fence either below the bank or to transfer it to the side of race next the turnpike from the lower end of the garden as far down the race as a large walnut tree which stands on the east side of the race; in which event the water-gate would be removed down to that point.</p> <p>This compromiso and settlement, it is understood, is an adjustment of the whole matter of differences between the parties respecting the water-rights mentioned. And while in future the rights of Switzer & Waskey respecting the water are not to be impaired by anything that has passed, so in the enjoyment of the same, and to repair and keep the same in order, respect is to be had to the property of McCulloch, and the same to be done without any more injury thereto than may be necessary—it being understood that the rights to the water remain to said Switzer & Waskey, as before the said change and unaffected thereby.</p> <p>Given under our hands, this 1st day of September, 1871.</p> <p>W. A. Glasgow,</p> <p>Ex’or of C. C. Spears.</p> <p>Madison McCulloch,</p> <p>Newton Switzer.</p>

Appeal of William M. Atkinson, trustee, from decree of Circuit court of Frederick county, rendered June, 1882, in chancery suit wherein William H. Brown, J. E. Morrison and A. E. Brown, partners doing business in the name of William H. Brown & Bros., were plaintiffs, and Marshall McCormick, trustee, George W. Bowly and Anna M. Bowly, his wife, the said William M. Atkinson, trustee, and others were defendants.

<p>1. Principal and Surety— Constructive notice—Laches—Release of surety— Case at bar.—Creditor company buys of its debtor property, in part payment delivers to him the note which is the evidence of the debt, and for balance pays him the cash. It turned out there were on the property docketed liens, and it was sold to pay them. Of those liens the company had constructive notice, and but for the grossest laches, might have had actual knowledge.</p> <p>Held :</p> <p>The company cannot be allowed to contend that the note was delivered up under mistake and remains unpaid, and for its payment pursue the surety, or the property of the surety, which had been conveyed in trust to secure payment of the note.</p> <p>2. Registration—Notice.—Under the Code of this State the regular docketing of judgments gives constructive, but in law conclusive notice thereof to all the world.</p> <p>3. Judicial Sales—Costs—Fees of counsel.—When property is sold under decree of court to satisfy liens thereon, out of the proceeds must be paid the taxed costs, but not more than the legal fee to the plaintiff’s counsel. If an allowance beyond the usual fee, for counsel representing the creditors, be proper, and it be paid out of the proceeds, it should be credited ratably on the liens, so as not to tax the debtor with it.</p>

<p>Appeal from decree of circuit court of Botetourt county, rendered 2d November, 1878., in tlie chancery suit of John Bodkin, Wm. T. Hardy, and Thomas J. Obenshain, on behalf of themselves and all other judgment creditors of John W. McAllister, against said McAllister, to enforce certain judgments obtained in 1857, which, they alleged, were liens on 200 acres of land in said county, which Mc-Allister claimed as his homestead under the laws of this State, when in 1873 he was adjudged a bankrupt under the laws of the United States, and which was allotted him 24th September, 1873, by the bankrupt court at Lynchburg for his homestead, when he was discharged as a bankrupt.</p> <p>This suit was instituted in 1878. Thomas L. Michie was the assignee in bankruptcy of McAllister, and was not made a party to the suit. Executions were issued on the judgments, and returns thereof made. McAllister demurred, answered, and pleaded that the enforcement of the judgments was barred by the lapse of twenty years.</p> <p>The circuit court decreed the sale of the land, and Mc-Allister appealed.</p> <p>The’other facts and proceedings are stated by the court in its opinion.</p>

Appeal of Joseph H. Shultz, John W. Johnston, trustee, William W. Gordon, Harrison Robertson, and Charles S. Carrington, from a decree of the circuit court of Botetourt county, rendered 2d June, 1881, in a suit in equity therein pending, in which Hiram Hansbrough is complainant and the appellants and others are defendants. This is a sequel to the case of Shultz v. Hansbrough, 33 Gratt. 567.

These are appeals from two decrees rendered 23d January, 1882, by the circuit court of Clarke county, in the two causes therein pending, wherein the Shenandoah Yalley Railroad Company is the complainant, and in the first named, John R. C. Lewis and Maria B. Lewis, his wife, and others, are the defendants; and in the last named, H. L. D. Lewis is the defendant.

<p>1. Ejection and Satisfaction.—The doctrine of election rests upon the equitable principle that he who accepts a benefit under a deed or will must adopt the whole contents of the instrument, conforming to all its provisions, and renouncing every right inconsistent with it. If by one clause of a will a legacy is given A, and by another clause an estate, of which A is the owner, is given to B, unless A surrenders to B the estate ■A cannot have the legacy.</p> <p>2. Idem—Intention.—In order to raise a case of election, the intention of the testator to give that which is not his own, must be clear and unmistakable. It is not necessary that the intention be expressly declared; it may be gathered from the whole of the instrument.</p> <p>3. Idem—Presumption.—Where testator owns only part of the thing given, the presumption is that he intended to give only that which he might properly dispose of, and nothing more; and it will always prevail, unless by demonstration plain, or necessary implication, the contrary appears.</p> <p>4. Idem—General words.—If, in making the devise, testator uses'general expressions, such as “ all my lands,” “all my estate,” no case of election arises.</p> <p>5. Idem—Sp/ecific description.—But where testator owns only part of an estate and devises the entire corpus thereof specifically, a case of election does arise. See opinion of Christian, J., in Gregory v. Gates, 30 Gratt. 83.</p> <p>6. Idem—Acceptance.—The election may be made by the legatee impliedly as well as expressly, and whether there has been an acceptance may be determined by the circumstances of the case. Acts of ownership, lapse of time, ability to restore others to the same situation as if there had been no election, are some of the indicia of acceptance.</p> <p>7. Idem.—Election once made, expressly or impliedly, is irrevocable, and binds not only the legatee, but all claiming under him.</p> <p>8. Idem—Creditors.—When election has once been made, and thereby an estate vests in a debtor, the latter can no more defeat the right of Ms creditors to subject that estate to their claims, by a disclaimer of title, than by a voluntary deed of gift or assignment; and those creditors may resort to a court of equity for the purpose.</p>

^ Appeals from decrees of circuit court of Frederick county in a certain cause therein pending under the style of Mitchell v. Wright et als. Its object was to make partition of certain lands among the cotenants thereof, some of whom were purchasers of undivided shares, thereof from certain of the original coparceners who had reserved liens for the unpaid purchase money.

<p>1. Judicial Sales—Caveat emptor.—It is well settled that a purchaser a* a judicial sale, with full knowledge of all the facts connected with the-title, will not, after the sale has been confirmed, be entitled to any abatement of the purchase money, or any suspension of its collection on account of any defect in the title.</p> <p>2. Idem—Resale—Rule.—Where the purchaser is in default in paying the-purchase money, and a rule is awarded requiring him to show cause why-there should not be a resale of the land, the objection that the rule is returnable to the same term at which it is issued, is without force, provided sufficient time is given to answer the rule.</p>

Leighton from the decision of the county court of said county refusing his application for license to sell liquor by retail at “ Old Forge,” in that county. The facts are fully stated in the opinion of the court.

<p>The facts are fully stated in the opinion.</p>

Appeal of Elislia Barksdale, Jr., and William C. Terry from a decree of the circuit court of Pittsylvania county, pronounced 27th April, 1881, in a suit therein pending in which William C. Terry is plaintiff and William R. Fitzgerald is defendant. The facts and proceedings are fully .stated in the opinion of the court.

Appeal of Beverly Canada to decree of circuit court of Halifax county rendered 7th October, 1878, in suit of William B. Barksdale against kim. In 1871, Canada bought of Yance Brown a tract of 820 acres of land near Scottsburg in that county, for $3,500, whereof $2,000 was payable cash, and balance 10th January, 1872.

J. Savage and Sarah F., his wife, against James G. Bain and B. T. K. Bain, bankers and partners under the style of Bain & Bro.; A. S. Watts, trustee, and the Exchange National Bank of Norfolk, Va. On 14th September, 1868, T. J. Savage made his note for $1,500, payable to himself and endorsed by him to Bain & Bro., and discounted by them at a greater rate of interest than was allowable by law.

<p>Appeal from decree of circuit court of Fluvanna county. Lewis J. Walton, sheriff of said county, and, as such, a. d. b. n. c. t. a. of Eobert W. Ashlin, deceased, suing for himself and the other creditors of Stephen P. Johnson, deceased, was plaintiff, and John S. Bowles, executor of said Johnson, and M., only child of said Johnson, and wife of Edgar Loving, were defendants, in a creditor’s bill. A cross-bill was filed by Loving and wife against said executor, and, on demurrer, was dismissed, and Loving and wife appealed.</p> <p>Opinion states the facts.</p>

Four appeals beard together at Staunton, but decided at Bicbmond, from decrees of tbe circuit court of Clarke county rendered 18tb May, 1880, in two causes therein pending.

E. Peters, executor of Don T. C. Peters, deceased, and trustee under his will for Julia Tribble, now the wife of Col. Frank Huger, to enjoin and prevent the said city from levying and collecting ■a collateral inheritance tax of five per centum upon a legacy of $10,000, bequeathed by the testator to Mrs. Huger. The circuit court decided that the city had the power to impose the tax, and dissolved the injunction with costs. ‘The complainant obtained an appeal to this court.

Appeal of tlie city of Riclimond from tlie decree of the chancery court of the city of Richmond entered 7th May, 1878, in the cause then therein pending, wherein A. A. Crenshaw, widow and administratrix of Lewis D. Crenshaw, deceased, A. W. Crenshaw, Lewis D. Crenshaw, Jr., Ann E. Grant, Julia Grant, Walter E. Grant, Mary J. Gwatkin, and I. H. Carrington, O. H. Palmer, and B. R. McAlpine, trustees, &c., and others, who sue for themselves and all other citizens of Richmond…

, Alfred G. Pettitt, E. H. Pettitt and William K. Watts are plaintiffs, and John E. Massey, as auditor of public accounts of the State of Virginia, and N. C. Taliaferro, late general agent and storekeeper of the penitentiary of Virginia, are defendants. Taliaferro was elected to that position for two years, beginning 1st January, 1876, and re-elected for a similar term, ending 31st December, 1879.

Petition of William Kirkham, W. E. Alley, W. EL Stevens, B. E. Porter, R. H. Raine, R. E. Jarvis, and-Eanes, who claim to have been lawfully elected on 28th June, 1882, by the council of the city of Petersburg, to fill certain city offices. They pray for a writ of mandamus' against E. R. Russell, the auditor of said city, to compel him to pay to them respectively their salaries.

Error and supersedeas to judgments of circuit court of Matthews county, confirming judgments of county court of said county dismissing petitions filed in tlie county court by Joseph C. Boggs and William F. Waters, David R. Mister, Thomas R. Chandler, Thomas Johnson, Henry F. Powell, John R. L. Hopkins and William H. A. Hopkins, and O. E. Maltby in certain cases pending therein, and known as the “ Oyster cases.” Boggs and Waters owned the schooner “Mary Tauline.” They sold…

Error and supersedeas to judgment of circuit court of Matthews county rendered at its special term in June, 1882, whereby an order of the county court of said county, directing the sheriff thereof to pay Eobert McCandlish $283.75, the net proceeds of the oysters, found on certain vessels seized whilst employed in violating the act of 6th March, 1880 (Acts 1879-80, p. 197), and sold by him, was reversed, and the said sum of money adjudged to belong to the Commonwealth.

<p>Erior' to refusal of the honorable judge of the circuit court of Smyth county to grant a writ of error to a judgment of the county court of said county, on an indictment against W. R. Richardson, a distiller, for selling liquor in quantities less than one gallon. Defendant filed three pleas in abatement to the indictment on account of irregularities in the formation and action of the grand jury which found the indictment. He also demurred to the indictment, and plead “not guilty.” At the trial the court instructed the jury as indicated in the syllabus. Verdict of guilty, and a fine fixed at $100, and judgment accordingly. The defendant obtained a writ of error and supersedeas from one of the judges of this court.</p>

<p>Error to refusal of the judge of circuit court of Bedford county of a writ of error to judgment of the county court of said county, rendered January 10th, 1882, against William Henry Terry Langhorne, upon an indictment for burning a certain tobacco factory in that county, the property of Robert F. Robertson. He was prosecuted under § 3, ch. 3, Acts 1877-8, p. 287, convicted, and sentenced to nine years’ imprisonment in.the penitentiary. The facts disclosed by the record are meagre, being limited to the testimony of a single witness, Edward Penn,.who testified that the prisoner told him, whilst they were confined in jail together, that he “had given one John Watkins §3 to buy certain combustible fluids with which to burn the said factory.” At the trial the prisoner demurred to the indictment, sought to impeach the credit of this witness by cross-examination and independent evidence, filed fourteen bills of exceptions to the rulings of the court, moved in arrest of judgment and for a new trial, and contended that the offence of burning a tobacco factory was an offence, not under the said 3d section,-but under the 5th section of the said act, which allowed the jury discretion to punish with stripes and a fine. The circuit judge having refused, one of the judges of this court granted the prisoner a writ of error.</p>

To tbis judgment Hatcbett obtained a writ of error and supersedeas. Tbe facts are fully stated in tbe opinion of tbe court.