Volume 77 — Virginia Reports

<p>The nature of the questions involved and the facts of the case, are fully set forth in the opinion of the court.</p>

<p>1. Criminal Practice-Pleading.-An indictment under a statute must state all the circumstances which constitute the offence as defined in the statute.</p> <p>2. Idem-Idem.-Though the offence, at common law or by statute, is defined in general terms, yet the indictment must charge it specifically, and descend to particulars.</p> <p>3. Idem-Idem-Officials.-In an indictment for corrupt misbehavior in office, the act must be distinctly charged as done knowingly and with corrupt motives.</p> <p>4. Case at Bar.-B., an election official, is indicted under Code 1873, ch. 8, § 43, for acting unlawfully as such official. On motion to quash,</p> <p>Held :</p> <p>Though he may have acted unlawfully, it does not follow that he was guilty of corrupt conduct, for the punishment whereof the statute was intended, and the indictment is insufficient.</p>

, and other lien creditors of the estates of Joab Oaks and George W. Oaks against the representatives of those decedents, and their surety, H. L. Muse.

<p>Appeal of Mrs. Bettie Wilson, widow of B. B. Wilson, deceased, from a decree rendered ITth March, 1880, in a chancery ■suit then pending in the circuit court of Greensville county, wherein W. J. Branch, surviving partner of himself and O. B. Bishop, late partners in the name of Bishop & Branch and others are plaintiffs, and the said Mrs. Wilson, D. B. Newsome, administrator with the will annexed of B. B. Wilson, deceased, W. 8. Goodwyn, trustee, and others are defendants. The facts and points raised are fully indicated in the syllabus, and set forth in the opinion of the court.</p>

<p>Error to judgment of circuit court of Fauquier county, rendered 19th April, 1880, in action of William Duncanson’s administrator for use of J. J. Halsey, against John S. Barbour, on a bond for $1,118.60, with interest from November 1st, 185V. The opinion fully states the pleadings and the facts.</p>

<p>Appeal from decree of chancery court of the city of Richmond in suit of Benjamin T. Bockover, plaintiff, against the Life Association of America, Wm. 0. Knight, T. M. Fowlkes, E. 0. Stacy, Geo. P. Stacy, John A. Moshy, Thomas Guy, H. 0. Hechler, J. R. Rennie, W. A. Rennie, John H. Wright, R. S. Elam, T. G. Elam, Thomas B. Henley, A. T. Hundley, W. H. Toppy, Miles B. Branch, and B. K. M. Friend, defendants. The plaintiff in 1872 insured his life for $10,000, payable in 1882, in the defendant company, which was chartered in Missouri. In 1879, a Missouri court decreed it to he insolvent. Under the decree, and a Missouri statute enacted in 1879, all its assets were vested in Wm. S. Relíe, superintendent of the insurance department, for the use of its creditors and policy-holders. The object of the suit was to attach debts due company in Virginia. The chancery court abated the attachments. Bockover appealed. At its November term, 1882, this court affirmed’ the decree. A re-hearing was granted him. The opinion states the other facts and proceedings.</p>

Walker, plaintiff, against J. P. Baines, defendant, for the recovery of a certain lot of land in said town. The judgment having been adverse to the defendant, he procured from one of the judges of this court a writ of error and supersedeas. The opinion states the facts.

Walker, plaintiff, against William A. Baugh, executor of Arthur Baugh, deceased. The only question involved in this case, which is not involved in the case of Raines v. Walker (supra, p. 92), is the settlement of the rents of the property, the title to which is litigated in that case. The decree having been adverse to the executor, he appealed to this court. The opinion states the facts.

Buckner, complainant, against John A. Metz, and Elizabeth, his wife, and Philip Metz, defendants. On 26th March, 1875, Buckner got judgment in said court against John A. Metz for $1,689.99. This suit was brought to enforce the lien of this judgment on eighteen and a quarter acres of land, whereof John A. Metz was seized at the date of the judgment, but which he subsequently set apart as his homestead, and which he and his wife on 4th August, 1876, conveyed to Philip Metz.

C. Keesee, A. J. Clark, John B. Anderson, and George K. Griggs, were defendants on a note for $2,800, payable at ninety days after its date, viz: 30th April, 18*79. The verdict and judgment being adverse to the defendants, they obtained a writ of error and supersedeas from one of the judges of this court. The facts are fully stated in the opinion of the court.

Bucher, plaintiff, against George M. Bucher and others, defendants. At the judicial sale of the real estate sold under decree of that court, in that cause, by B. H. G. Kean and O. M. Blachford, special commissioners, John Hichson became the purchaser of six lots for $855. The sale was reported and confirmed without objection.

Two causes heard together, on error to judgments of circuit court of Loudoun county, rendered 24th April, 1880, on error to judgments of the county court on motions on notices, made therein hy H. O. Olagett and A. H. Rogers, executors of Thomas Clagett, deceased, against William F. Barrett, late sheriff, and his sureties, Josephus Carr, Armistead T. M. Fuller, R. M. Summers, Samuel Carr and Samuel Compher; and by Frances A. Mead, administratrix de bonis oion, with the will…

Booker and Joseph Stigler against Stigler’s executrix. The decree being in favor of the complainant on her cross-hill, the defendants therein, Marion Stigler, widow and executrix of James A. Stigler, deceased, Thomas T. Munford, guardian of John R. Stigler, Joseph A. Stigler, Fannie Stigler, and Benjamin Stigler, infant children of James A. Stigler, deceased, and Samuel D. Preston, guardian ad litem and next friend of the said infants, obtained an appeal to this court.

<p>1. Telegraph Companies are not public carriers in the strict sense of the term, yet on account of the public nature of their employment, they have in many cases been held to a very similar responsibility.</p> <p>2. Idem—Contract—Statute.—The obligation of such companies, upon payment of the usual charges to transmit faithfully and promptly all messages presented for transmission, rests, in Virginia, not merely on contract, but is imposed by Code 1873, ch. 65, § 2.</p> <p>3. Idem—Regulations.—Such companies may make their own regulations for the conduct of their business, but they must be reasonable and not in conflict with any liability imposed by law, and they cannot relieve themselves from liability for the improper or negligent conduct of their servants or defective character of their instruments.</p> <p>4. Idem—Negligence—Measure of damages.—Where such company has received a message for transmission and the usual charges according to their regulations, it is bound to transmit the message faithfully and promptly, whether it be in “ cipher ” or “ intelligible,” and should the company negligently fail to transmit such message altogether, or to transmit it faithfully and promptly, it will become liable to an action for damages by the party aggrieved, and the measure of damages in such case is such loss as the party aggrieved has sustained by reason of the wrongful act of the company in violation of the duties imposed on it by law. A more precise statement of the rule is : The company is liable to all the direct damages which both parties would have contemplated as flowing from the breach of the contract or violation of the duty, if, at the time, they had bestowed proper attention to the subject, and had been fully informed of all the facts.</p> <p>5. Practice at Common Law—Instructions.—Telegraph Company received a cipher message for transmission, and the usual charges according to its regulations, and failed altogether to transmit it, whereby the sender lost a large sum of money, and brought his action for damages against the company. At the trial the defendant asked the court to instruct the jury that in order to make the defendant liable for more than nominal damages, they must believe from the evidence that the defendant was substantially informed of the meaning of the message and of the approximate extent of the plaintiff’s liability to loss in case of failure to transmit the message promptly and correctly. Court below refused. On error to this court,</p> <p>Held :</p> <p>The instruction was improper and rightly refused.</p> <p>6. Idem—Erroneous instruction—Right verdict.—Court below gave an erroneous instruction; but if from the whole record the appellate court sees that even under correct instructions a different verdict could not have been rightfully found, it will not reverse the judgment and send the cause back for a new trial.</p>

<p>Executors&emdash;Liability&emdash;Widow&emdash;Jointure&emdash;Dower.&emdash;By will probated July, 1873, testator made assets to pay all his debts, of his whole estate (valued at $46,000), except two hundred and twenty-five shares of bank stock, valued at $20,000, and specifically bequeathed to his wife and children. He authorized his executor to sell at his discretion, his whole estate, except the bank stock, and after paying his debts, the residue to go also to his wife and children. Financial panic in 1873 depressed property values, and no sales were made until after suit instituted in June, 1876, to settle the estate, by the reports of the accounts therein taken, revealed that the debts had swollen to $25,000, and the assets dwindled to $8,000, and the bank stock become worthless. The widow never renounced the will, nor claimed dower until December, 1877, when she filed her petition in the suit, avering she had lawfully been deprived of her jointure, and desired her dower in the lands of her husband, which had then been sold under decree in the suit. She also claimed homestead exemption in his estate. She filed exceptions to the said reports wherein they failed to make the executor account for the bank stock, and to hold him liable for his failure to convert into money so much of the estate of the testator as was necessary to pay the debts, before its depreciation in value. Court below overruled the exceptions and denied the prayer for dower, but allowed the homestead. On appeal by widow&emdash;</p> <p>Held:</p> <p>1. By a long series of decisions, it is well settled in Virginia that if an executor honestly exercise the discretion conferred on him by the will, he cannot be held liable for any loss which may have been occasioned by a mere error of judgment.</p> <p>2. Circumstances under which a fiduciary is held exonerated from liability for the loss of the trust subject.</p> <p>3. The widow having declined for over four years to renounce the will and claim the provisions made for her by the law, and having with full knowledge of the facts elected to accept the provisions made for her by the will, cannot now—even though she has been lawfully deprived of her jointure—be allowed to revoke her election and have dower, especially after the realty has been sold to innocent purchasers under decrees in a suit in which she was a party.</p> <p>' Idem—Compromise.—With a view to protect himself in the event he should be held liable for the bank stock which perished on his hands, executor made a compromise with the creditors, who (in advance of the legatees) would be entitled to the bank stock, whereby the creditors assigned to him for value their interests therein, but the stock having become valueless, there remained nothing out of which he could derive any advantage. On appeal:</p> <p>Held:</p> <p>Such agreement did not, under the circumstances, come within the rule which forbids a fiduciary from availing himself of his fiduciary character to make personal profit or advantage.</p>

The object of the suit was to recover the amount due on a bond. At the trial the plaintiff filed a demurrer to the defendant’s evidence, which is as follows: Be it remembered, that after the jury was sworn to try the issue joined in this cause, the plaintiff, to prove and maintain the said issue on his part, showed in evidence to the jury a bond in the words and figures following, to-wit: $1,510.

<p>Opinion states the case.</p>

<p>Two cases heard together.</p> <p>Error to judgment of circuit court of Goochland, rendered 6th September, 1879, on petition of Z. I. Stokes for a writ of prohibition against the appellant, John D. James, and E. S.- Saunders, a justice, and John I. Oheatwood, a constable, of said county; and error to judgment of same court, rendered same day, on similar petition of Charles F. Harris and Henry Harris, against same defendants.</p> <p>Stokes owed James $126.73 upon open account for store-goods, and executed three several bonds, each for $42.24, parts thereof payable in two, three, and four months. When all fell •due, the justice rendered on each a separate judgment, and issued a writ of fieri facias, which the constable collected part ■of, and was proceeding to collect remainder when Stokes applied to circuit court for a writ of prohibition, which was awarded.</p> <p>The second judgment was against O. F. and H. Harris, as garnishees, under the said writs of fi. fa. To these judgments •James obtained from one of the judges of this court writs of ■error and sujjersedeas.</p>

Appeal of H. O. Hudson from decrees of circuit court of Mecklenburg county, rendered 5th December, 1879, and 28th May, 1880, in the suit of E. L. Dismukes, suing for herself and other lien creditors of George O. Venable, against said Venable and others. By deed recorded November, 1871, in Halifax county, said Venable conveyed land in that county in trust to secure a debt to A. G. J effress.

<p>1. Practice at Common Law&emdash;Exceptions&emdash;Appellate court.&emdash;Unless by-record it appears that points decided by court below were saved before jury retired, they cannot be reviewed by appellate court. But bill of exceptions may be prepared and signed at any time during the term.</p> <p>2. Idem&emdash;Facts proved&emdash;-Evidence certified.&emdash;When evidence conflicts, court may refuse to certify facts proved; but must certify the evidence on motion of any suitor.</p> <p>3. Idem&emdash;Instructions&emdash;Appellate court.&emdash;Unless the evidence is before appellate court, it cannot pass on instructions given or refused.</p> <p>4. Idem &emdash;Judges&emdash;Official laches.&emdash;Lack of time or lapse of memory is no excuse for a judge’s refusal to certify the evidence on the trial of a cause before him, or to perform any other duty imposed on him by law.</p> <p>5. Idem&emdash;Mandamus&emdash;Appeal.&emdash;To compel judge to certify evidence mandanms lies, but his refusal is error reviewable in appellate court on complaint of party injured. To deny certificate of evidence, is to deny suitor his right of appeal.</p> <p>6. Overruled&emdash; Grayson's case, 6 Gratt. 712, on one point.&emdash;Wherein the court said : “Where the evidence is contradictory, the court which tries the case cannot be required to state in a bill of exceptions either the evidence or the facts proved by the witnesses respectively. It is enough to state that the evidence was contradictory ”; the opinion was mere obiter dictum, and is not sound in principle.</p> <p>7. Idem&emdash;Evidence&emdash;Declarations.&emdash;Written or oral declarations of a party to a suit, relevant to the issue, and against his interest, are admissible as evidence against him.</p>

Petition of Yirginius Johnson, incumbent of the office of treasurer of the city of Petersburg, for a writ of mandamus for his restoration to that office, from which he claimed to have been wrongfully ousted by E. W. Couch, who was elected to fill the same office on fourth Thursday in May, 1882, and who failed to qualify before 1st July, 1882, when his term of office commenced.

<p>Error to judgment of circuit court of Amherst, rendered 12th July, 1882, refusing a new trial to Frederick McDaniel, who was during same term convicted of murder in the first degree, of J. C. Garter, and sentenced to he hanged. Opinion fully states the facts.</p>

<p>1. Construction of Statutes—Attorney-General’s fees.—Act approved March 12th, 1878, Acts 1877-8, chapter 183, section two, page 174, providing that “the attorney-general shall receive a salary of $2,500 annually for his services, and shall not be entitled to any further compensation therefor,” refers to salaries payable out of the state treasury, and not to fees taxed in the costs as fees of attorneys on the winning side in any case, under Code, chapter 181, section thirteen.</p> <p>2. Idem—Fees taxed.—The laws requiring such fees to be taxed for the commonwealth have never been repealed nor amended, and the losing suitor has them to pay, whether they go into the state treasury or to the attorney-general. But the laws requiring such fees to be taxed in the costs and paid to said attorney are also unrepealed.</p>

<p>1. Practice in Chancery—Building associations—Parties.—Where suit is brought to wind up the affairs of a building association doing business under the laws of this state, all the shareholders should be made parties. If any have been illegally released, their liabilities should be enforced.</p> <p>2. Building Associations—Shareholder—Borrower.—When shareholder has his shares redeemed, the terms of his contract is evidenced by his bond and his trust deed given to secure his bond, and cannot be varied. If those terms be to pay monthly instalments and interest on the sum borrowed, and he is not in default, he cannot be required to pay a sum in solido.</p> <p>3. Idem—Monthly payments—Dissolution.—Such instalments must be paid as stipulated, until the accumulated fund suffices to pay the sum agreed on under the articles, on each of the unredeemed shares, when the association ceases to exist, unless sooner dissolved by a vote of the shareholders.</p> <p>4. Idem—Shareholder—Borrower—Obligation.—The sum advanced shareholder is no part of his debt. His obligation is to pay in lieu of the sum advanced, the monthly instalments as he contracted, and no more.</p>

<p>1. Constitution&emdash; Vacancies.&emdash;The general assembly is authorized by the constitution of this state to declare the cases in which any office shall be deemed vacant, and the mode of filling vacancies in office in cases not therein specially provided for. The constitution does not declare the causes for which the office of mayor shall be declared vacant, nor the mode of filling the vacancy, nor his term of office. Const., article 5, section 22.</p> <p>2. Legislature&emdash; Vacancies.&emdash;The general assembly has declared that the failure of any county, corporation or district officer to qualify before the commencement of his term of office, shall create a vacancy in his office. Code 1873, ch. 6, sec. 22; Acts 1874-5, ch- T53> sec• 9>' Charter of Peters-burg, ch. 1, sec. 6; Acts 1874-5, approved March nth, 1875. It has also provided, that when the office of mayor becomes vacant, the common council shall elect a qualified person to fill the vacancy. ***•*■*■ Charter of Petersburg, ch. 2, sec. 5.</p> <p>Case at Bar.&emdash;A was elected mayor of P. for a term ending 1st July, 1882, but because his successor failed to qualify before that day, held over-On February 1st, 1883, J. was elected by the common council to fill the vacancy occasioned by said failure to qualify, and qualified and entered upon the duties of the office. A., however, refused to recognize J. as mayor. To test the question, J. arrested V. and A. arrested M. BothV. and M. applied to this court for writs oí habeas corpus.</p> <p>Held:</p> <p>1. A. was entitled to hold and discharge the duties of mayor until the common council elected J., and the latter qualified, when A.’s authority as mayor ceased and J.’s began.</p> <p>2. V. must be discharged from custody.</p> <p>3. M. must be remanded to custody.</p>

<p>Appeal from decree of circuit court of Charlotte county, rendered March 29th, 1880, in a suit styled Yuille’s administrator v. Gaulding, sheriff, &c.</p> <p>By that decree, W. ,W. Henry, administrator of Alexander Yuille, deceased, was required to pay de bonis testatoris in his hands to he administered, William R. Barksdale, assignee of E. Y. Wimbish’s administrator, the sum of twelve hundred and fifty-three dollars and twenty-three cents, with interest on nine hundred and eighty-seven dollars and seventy-three cents from September 20th, ISTT, ufitil paid, that appearing to be the amount due on the judgment against said administrator on a bond of Thomas S. Flournoy, principal, and W. L. Pannill, J. B. Stovall, and Alexander Yuille, sureties, to Eppa Y. Wimbish, dated January 28th, 1852, for $5,000, payable with interest twelve months after date, after deducting all credits for payments made thereon. From this decree, the said Henry, as such administrator, obtained from one of the judges of this court an appeal and supersedeas. The facts of the case and the positions taken hy the appellant, are fully stated in the opinion of the court.</p>

<p>Error to judgment of circuit court of New Kent, rendered May 31st, 1819, against the defendants, in an action of ejectment brought by Cornelius H. Eillbates, Lightfoot T. Eillbates and Mary L. Whitney, children and heirs-at-law of Cornelius E. Eillbates, deceased, against James W. Woodhouse and his tenant, George T. Armistead, for the recovery of a tract of land lying in said county, called Marshfield, containing one thousand acres, more or less, which, under a decree of the county court of said county, rendered in 1860, to which plaintiffs, then infants, were parties, had been upon regular proceedings sold to said Woodhouse, the sale confirmed, the purchase money paid, and the deed made and recorded. The jury found the facts, and thereupon the circuit court gave judgment for the plaintiff; to which the defendant, Woodhouse, obtained a writ of error and supersedeas.</p>

<p>Error to judgment of circuit court of Mecklenburg' county, rendered May 29th, 1882, affirming judgment of the county court of said county, rendered 20th December, 1881, dismissing with costs the application of Mrs. Lucy T. Wimbish, by her next friend, to establish a ferry across Boanoke river. The dismissal was based on the fact, that the ferry applied for was within the prohibited distance of “Haskins’s ferry.” But the applicant contended that the latter ferry had not been legally established. To that judgment Mrs. Wimbish obtained a writ of error and supersedeas. Opinion states the facts.</p>

<p>1. Constitution-Sheriffs-Incompatible offices.-Article seven, section six, provides that, “sheriffs shall hold no other office.” Therefore any other office is incompatible with that of sheriff.</p> <p>2. Sheriffs-Second office-Amotion-Vacancy.-The sheriff’s acceptance of a second office actually vacates the sheriffalty. And no judgment of amotion is necessary where an office has been forfeited by removal or by the acceptance of an incompatible office. When the office of sheriff is thus made vacant, it becomes the duty of the county court judge to fill the vacancy in the mode prescribed by law.</p> <p>3. Idem-Idem-Resignation.-Sheriff’s resignation of the second office, after by its acceptance he has vacated the first, cannot restore him, nor otherwise affect the first.</p> <p>4. Circuit Court-County Judge-Prohibition.-As the law makes it the duty of the county court judge to fill the vacancy in the sheriffalty, the circuit court has no authority to issue a writ of prohibition to restrain this exercise of his jurisdiction. If he exercises it erroneously, the remedy is by appeal. Prohibition lies only in case of transcending jurisdiction. This court has ever discouraged the employment of a writ of prohibition as a process to correct the errors of inferior tribunals, and thus usurp the functions of the writ of error.</p>

<p>Appeal from decrees of the chancery court of the city of Richmond, rendered 4th August and 7th December,' 1882, in the suit of the Southern Fertilizer Company, Allison & Addison, and A. S. Lee, suing for themselves and all other manufacturers and sellers of fertilizers, who will share the costs and benefits thereof, against James M. Blanton, commissioner of agriculture of the state of Virginia. By the first decree an injunction was awarded restraining the defendant from exacting or attempting to exact the charge for certain “tags,” which the plaintiffs were' required by number two of certain rules prescribed by him, as a condition precedent to the sale of their goods in this state to purchase from said commissioner at the rate of five cents each, to be attached to each package containing two hundred pounds or less of the fertilizer to be sold.</p> <p>The defendant filed a demurrer and answer to the bill. When the cause was matured and heard on its merits, the chancery court overruled the demurrer and perpetuated the injunction.</p>

Scott for a writ of error to a judgment of the county court of said county rendered 16th May, 1882, imposing on him a fine of $T5 and costs on an indictment for a misdemeanor. Opinion states the facts.

<p>Appeal of Thomas J. Kilpatrick and others from decree of hustings court of the city of Portsmouth, rendered 28th December, 1882, in a chancery cause in which O. V. Smith and others were plaintiffs, and the petitioners and others were defendants. In 1810 the state hoard of education appointed six school trustees for that city, which had then only two wards. The city council did not designate which of the trustees were to go out of office in one, which in two, and which in three years. They and the successors of such as died in the meantime, held over as such trustees until June, 1882, when.the city council appointed O. Y. Smith and five others such trustees. The hoard of education claimed that as the city council did not supply the vacancies in the offices of the trustees first by the hoard appointed, within sixty days from their occurrence, the city council had no authority afterwards to supply them, and that the right so to do had devolved on the hoard of education. Hence, in July, 1882, the hoard of education appointed Thomas J. Kilpatrick and eleven others—three for each of the four city wards—such school trustees, who duly qualified, organized and entered on their duties. But O. V. Smith and the five other appointees obtained an injunction from the judge of the hustings court of the city inhibiting Kilpatrick and his eleven associates from acting as such trustees, &c. The defendants demurred on the ground that quo warranto, not injunction, was the remedy for the plaintiffs claiming the right to these offices, and they answered setting up the invalidity of the appointment of the plaintiffs and the validity of their own appointment. At the hearing the hustings court overruled the demurrer, and joerpetuated the injunction. From this decree, Kilpatrick and his co-trustees obtained an appeal and supersedeas.</p> <p>Opinion fully states the other facts and the proceedings in the case.</p>

<p>Sheriff&emdash;Administrator&emdash;Sureties&emdash;Case at bar.&emdash;Decedent’s estate, embracing a slave, was, in 1853, committed to sheriff H. for administration. In 1858, when H. had ceased to be sheriff, and no debts were unpaid, and he had turned over the slave to the widow; under an order of the county court, H. sold the slave, but failed to account for proceeds. Distributees sued H. therefor, and subsequently amended their bill so as to charge his sureties as sheriff. The county records had been mostly destroyed. The bond for i852-’54, after diligent search, could not be found. The secondary evidence that the defendants were the sureties on that bond, was vague and uncertain. On appeal:</p> <p>Held :</p> <p>If the defendants, who are charged as sureties for H. as sheriff for the year 1853, had been clearly proved to have been such, yet the order of the county court under which, in 1858, the slave was sold by H., must be regarded as a valid order, and its effect was to take the slave out of the hands of H. as such administrator, and-place him in his hands as commissioner of the court. The sureties of the administrator were thereby as completely discharged from liability as they would have been, had the administrator and the commissioner been different persons, and the former had delivered the slave to the latter under the order of the court.</p>

<p>Error to judgment of circuit court of Richmond city, rendered on 3d January, 1883, in the action of 0. W. Clemmitt and Myra P., his wife, who was daughter of George W. Minnis, against The New York Life Insurance Company. This is the sequel to the case of Clemmitt and Wife v. The New York Life Insurance Company, which was decided by this court 30th March, 1882, and is reported in 76 Ya. Reports, 355. In November, 1857, G. W. Minnis insured his life with said company for $5,000, for the sole benefit of his wife, Mary Jane, with the further conditions stated in the policy, “that in case of the death of his wife before his decease, the amount of the insurance should be payable after her death to her children.” Myra P. was the only child. Insured paid the premiums up to the war. Shortly after the war he saw the president of the company, who said the policy was annulled hy the war, and repudiated it. Mary Jane died in 1868.</p> <p>This suit was brought in 1874, to recover damages for the breach of the policy. The insured died in April, 1877, pending the suit which was decided in the circuit court against the plaintiffs in 1879, and they obtained a writ of error to this court, which reversed the judgment with costs. This court then decided that as soon as the wife died the child’s rights vested; that after the company repudiated the policy, the wife might have sued in her own name for damages for the breach, or await the event whereon the sum assured became payable to her if she survived the insured, to her children if he survived her; that the war only suspended, did not abrogate the policy; that where the breach occurs and suit is brought during insured’s life, and he dies before judgment, the value of the policy is the present value, as of the date of the company’s repudiation of the sum assured, and payable at the death of the insured; to be diminished, however, at the same date, by the present value of the premiums subsequently accrued, and also by the amount of the premiums previously accrued (which are unpaid) and interest thereon.</p> <p>The action having been remanded for trial on these principles, the second trial was had, and resulted as aforesaid in a judgment for the plaintiffs, to which, in turn, the defendant company obtained a writ of error and supersedeas from one of the judges of this court. ,</p> <p>The instructions given and those refused hy the circuit court, and the other proceedings had, are set forth in the opinion of the court.</p>

May, 1878, in two suits consolidated and heard together under the styles of Martin and Wife v. Parsley’s administrator, and Terry and Wife v. Same. The syllabus indicates and the opinion of the court fully states the facts.

This is a case of prohibition brought in this court as a court of original jurisdiction.

<p>1. Criminal Proceedings&emdash;Indictment&emdash;Verdict.&emdash;On an indictment for maliciously shooting with intent to kill, &c., one S., the jury return their verdict: “We, the jury, find the prisoner guilty of unlawful shooting with intent to kill, as charged in the indictment, and fix the term of imprisonment at three years in the penitentiary.” The verdict is to be read in connection with the indictment, and therefore sufficiently indicates the person shot.</p> <p>2. Idem&emdash;Accused&emdash;Witness&emdash;Statute Construed.&emdash;Acts 1881-2, chapter 228, section &emdash;, declares that in prosecutions for certain offences, “ the accused may be sworn and examined as a witness in his own behalf.” The object was to afford him opportunity to testify or not, as his interest might dictate, and not to deprive him of his right to deny his guilt by plea and rest upon the legal presumption of innocence.</p> <p>3. Idem&emdash;Prosecuting Attorney&emdash;Exception.&emdash;Where in such case accused does not testify, it is improper for prosecuting attorney to comment on that fact. But if exception is not taken thereto till after verdict, it is too late, unless under all the circumstances, the court can see that a proper verdict has been rendered and the accused not injured by the comment.</p>

Clarke was plaintiff, and John T. Eerry and John D. Hutchinson were defendants. The facts are sufficiently indicated in the syllabus, and stated in the opinion of the court.

<p>Error to judgment of corporation court of Lynchburg, rendered November 3d, 1882, overruling the motion of Nelly Taliaferro (a colored woman) to set aside the verdict of the jury finding her guilty of house-hreaking, with intent to commit larceny, and fixing the term of her imprisonment in the state penitentiary at two years, and to grant her a new trial. The facts are fully stated in the opinion of the court, and indicated in the syllabus.</p>

On petition for a writ of mandamus by John F. Lewis and eighteen others, who, on 22d September, 1882, were appointed by his excellency, William E. Cameron, governor of Virginia, as a board of visitors of the Medical College of Virginia, from this court, to command the respondents therein, to-wit, F. M. Whittle and eighteen others, who, before that .day, constituted the-board of visitors of that college, to deliver to the petitioners the possession thereof, which they have…

<p>On petition of Addison L. Holladay, for a writ of mandamus from this court, to command S. Brown Allen, auditor of public accounts of this commonwealth, to pay out of the state treasury his salary as judge of the chancery court of the city of Richmond. This, the auditor had declined to do, on the ground that the same was payable, not out of the treasury of the state, but out of the treasury of the city of Richmond.</p> <p>The facts and the positions taken are indicated in the syllabus and fully stated in the opinion of the court.</p>

<p>1. Sales—Postponement of delivery—Breach—Damages.—Where delivery is postponed at buyer’s request, and then breach occurs, this postpones date of breach in reference to the time at which damages therefor shall be fixed.</p> <p>2. Idem—Delivery on event—Non-delivery before event—Case at bar.—In September, 1879, J- sold A. old iron rails to be delivered immediately after delivery thereof to J. by York River Railroad Company at Richmond dock, at $28 a ton. Company failed to make complete delivery as soon as was expected, but made partial deliveries! during several months, and the rails so delivered were, as fast as delivered, turned over to A., who, though constantly complaining of the delay, and told he might drop the contract, by J., by whom no indulgence was ever asked of A.,'accepted same. Iron was rapidly rising in price. A. continued to urge the delivery and J. to promise to deliver as fast as the company delivered to him, and to press the company to deliver. On 19th January, 1880, only a few days after J.’s last delivery, A. demanded immediate delivery of the residue, one hundred and ten tons, on threat to buy in open market and charge difference to J. On 5th February, 1880, A. declared the contract at an end, bought one hundred and ten tons of old iron in rails in market, at $44 per ton, presented his account for difference between that and the contract price to J., who refused to pay it. On 20th February, 1880, J. received several car loads more of rails from the company, and offered same to A., who refused to accept them. Afterwards A. sued J. and recovered judgment for $ 1,750.79 and costs. At trial several instructions were asked for by each party. All were refused and others given. For those asked for by defendant and refused, and those given by the court, see opinion. Of the former the first is as follows, viz: “ First. The court instructs the jury that if they believe that the contract between the parties was that defendant was to deliver to plaintiff one hundred and fifty tons of iron as soon as he could get it from the York River Railroad Company, and was to receive $28 per ton therefor, and that he did offer to deliver to plaintiff so much of said iron as he received from the company, and as soon as he so received it, and that plaintiff, after accepting part of said iron, refused to receive any more, then they are to find for defendant.” The second is substantially the same.</p> <p>Held. :</p> <p>1. The first and second instructions asked for by the defendant, correctly propound the law, and are founded on evidence which was before the jury, and which tended to prove the case therein supposed, and should have been given.</p> <p>2. It is unnecessary to notice the other instructions asked for by the defendant.</p> <p>3. The instructions given by the court, are, in the abstract, correct, but are predicated upon evidence not before the jury, and tended to mislead and confuse them.</p>

<p>1. Bank Stock-Lien of bank-Charter-Assignee-Case at bar.-Charter of bank incorporated in 1870, provided that “ the bank shall have a lien prior to all others upon any stock held by a stockholder for any debt of said stockholder to said bank.” The stock certificates contained no notice of this lien, but declared that they were “transferable only on the books of the bank, in person, or by attorney, on the surrender of the certificate.” A stockholder, J., indebted to the bank, borrowed money from a third person, and gave him the certificate as collateral, with power of attorney to transfer the stock. J. became bankrupt, and then lender applied to the bank to transfer the stock. Bank refused so to do, until paid its debt due from J.</p> <p>Held :</p> <p>1. The act of 1870, Acts 1869-70, page 488, incorporating this bank, superseded the general law as to chartered companies, providing for the transfer of stock, and gave the bank the prior lien for any debt due it from a stockholder, on his stock; which lien was not waived by leaving the certificates outstanding!</p> <p>2. In this case the lien of the bank upon the stock, was, under its charter, paramount to that of the lender to J., and the bank had the right to be first satisfied before transferring the stock to the lender. If lender chose to hold the stock, he held subject to the bank’s lien.</p> <p>2. Persons dealing with a corporation must take notice of, and are effected by the provisions contained in its charter.</p>

<p>1. Trustees—Investments—Liability.—Trustee, investing trust funds, must see that the security is forthcoming, upon parting with the money. Loss occurring through his negligence must be borne by him.</p> <p>2. Idem—Failure to settle—A trust continues from 1867 to 1880. The accounts are settled only between 1874 and 1878, and he is allowed to resign;</p> <p>Held :</p> <p>He must settle his accounts for the whole period of his trusteeship.</p> <p>3. Idem—Trust corpus—Case at bar.—Instrument creating trust allows use of principal to support c. t. q. and family, upon order of court. Trustee furnished c. q. t., from his own store, goods for that purpose at fair prices. The annual bills exceed annual income; are charged 'in the settlements and approved by the court;</p> <p>Held:</p> <p>1. This was not dealing with trust subject for trustee’s private gain.</p> <p>2. The court’s subsequent approval was tantamount to its prior authorization.</p> <p>4. Idem—Unatithorized investments—Liability.—Trustee, with trust funds, purchased of H., without recourse, bond of P. for $1,250, secured on land worth not more than that amount. For several years interest was ■ uncollected, until debt reached $1,750, and land depreciated to $500. Then he got permission from court to bid in the land for the debt, and hold it as an investment. Thus $1,200 loss resulted. He put an insolvent tenant on the land; kept him there for years against protest of c. q. t.; took from tenant for unpaid rent, worthless bonds; reduced them to judgment; and charged loss, costs and attorney’s fees to trüst fund. Trustee also purchased with trust funds, from C., without reconrse, $2,500 of a bond on S., secured by unrecorded trust deed; he failed for a month to have the deed recorded, during which time an-</p> <p>other creditor of S. (a bank whereof both C. and the trustee were directors), gained priority over it, and thus $1,000 loss resulted;</p> <p>Held:</p> <p>In these transactions, the trustee did not act with the discretion with which a man of ordinary prudence is accustomed to act in managing his own affairs, and the losses, and also the fees, costs and expenses, must be borne by him.</p>

Appeal of John J. Osborne to decree of chancery court of the city of Richmond, rendered against him on 14th June, 1879, in a chancery suit therein pending, wherein Henry O. Oabell was plaintiff, and Francis J. Barnes, Edward D. Hitchcock and the said John J. Osborne were defendants. The facts of the case and the object of the suit are fully indicated in the syllabus and stated in the opinion of the court.

Patterson and John H. Bash, partners in the name of Patterson & Bash, were plaintiffs, and John Langyher and others, were defendants. The object of the suit was to subject John Langyher’s real estate to satisfy the lien of the plaintiff’s judgment. Sale of certain mill-property was decreed, made, reported and confirmed, and two days later, during same term, the decree of confirmation was rescinded by the court.

<p>1. Equity jurisdiction and relief-Account.-The jurisdiction of courts of equity in matters of account, is among the most comprehensive they have assumed. Matters of account are per se within the scope of their jurisdiction. They have concurrent jurisdiction therein with courts of law; but the difficulty of proceeding in the latter, and the convenience of proceeding in the former, where a discovery may be had on the defendant’s oath, where a multiplicity of suits will be avoided, and where fraud, accident, or mistake is connected with the subject, causes them to be most commonly resorted to.</p> <p>2. Idem-Partnership-Partnership relations between parties engaged under contract in a joint venture, gives jurisdiction to courts of equity. Such relations involve not merely a community of interests, but the employment of a common stock, whether consisting of property, or mere labor and skill, in a common undertaking with a view to a common profit. Before the interest of an individual partner can be ascertained, an account of the business, the assets and the liabilities must be taken, so that the divisible surplus can be known. If a dissolution be sought, the common law courts .cannot afford relief. And so, also, a specific performance of the partnership may be compelled. One partner may be restrained from a course injurious to the rights of another, or depriving him of his due share in the direction of the business.</p>

Byrd and others were plaintiffs, and John R. Ludlow and others, were defendants.

<p>Upon petition of V. D. Groner and six others constituting “ the board of harbor commissioners of Norfolk and Portsmouth and Norfolk county,” appointed and organized as provided by an act of the general assembly, approved March 3d, 1882, against the Council of the city of Portsmouth, composed of John H. Hume and fourteen others, to command the said council to make the appropriation of the sum of $600, and pay over the same to the petitioners as such board ;• that being the ratable share of the said city of Portsmouth of the estimated expenses incurred by the said board in carrying out the provisions of the act of assembly aforementioned, for the twelve months from August 1st, 1882, but the said council passed a resolution that no appropriation will be made by it to pay that share.</p> <p>The remaining facts are set forth in the opinion of the court.</p>

<p>Appeal from, decree of chancery court of city of Richmond, rendered November 4th, 1880, in two suits pending therein, entitled&emdash;-the one, Bailey (M. C.), ivho sues for, &c. v. Hill and others, and the other, Bailey (J. M., Jr.), v. Pizzini and als.</p> <p>M. G. Bailey held, hy her hushand, A. M. Bailey, as trustee, a house and lot in Richmond, occupied by them, and inherited from her brother. The trust terms were: The trustee to hold and manage the property for the sole, and separate use and disposal of said Mary O. Bailey, free from the debts, control and marital rights of her said husband, and to pay and transfer unto her, or to such person, and at such time and in such proportions, manner and form as she may request by her order in writing, attested hy two or more credible witnesses, all rents, issues and profits of said property, and the produce thereof; and all said property and produce thereof to he had, taken, held and enjoyed by such person, and for such use as she shall at any time hereafter during her life limit, devise, order or dispose of the same, or any part thereof, either by her last will, or by any writing signed by her in the presence of two or more witnesses; and upon further trust, whenever required by her in writing, signed by her in the presence of two or more credible witnesses, the trustee will convert the property, in whole or in part, into money, and invest the same in real or other property; and on further-trust, that if she shall, during her life, fail to limit, devise, order, or dispose of the property, then the trustee will hold the same for the benefit of her children who may survive her, share and share alike, and will deliver the same to them at her death, or as soon thereafter as practicable; provided such delivery be not made until each of them attain the age of twenty-one years.</p> <p>The husband and trustee made two notes, one for $500, the other for $3,850, dated 18th April, ISTT, both payable to his order at twelve months, and endorsed by him; and to secure the same executed deeds of trust on said house and lot, and induced the wife and cestui que trust to unite in the execution thereof, and to request their execution by writing signed by her in the presence of two witnesses. These notes were then sold hy brokers to third persons at a rate of interest greater than the legal rate, under circumstances indicating that all the persons dealing with them were aware that the object of the transactions was a loan to the trustee, effected, as the appellants contend, at a burden to the trust property of $1,397.80, including charges for examinations of titles, preparing deeds, etc., etc. These notes were not paid when due. The property was sold on .July 15th, 1878, to pay them, and conveyed hy the trustees to L. W. Pizzini, the purchaser. Mrs. Mary O. Bailey, the cestui que trust, brought this suit to annul the trust deeds and also the conveyance to Pizzini, the purchaser. In her hill she alleged that at the time of his execution of those deeds and notes the trustee, A. M. Bailey, her husband, was non compos mentis; that under the settlement that trust deed was not binding on her, and that the transaction was usurious and unconscionable.</p> <p>Later, James M. Bailey and Mrs. Emma Laughton, children of the cestui que trust, Mrs. Mary O. Bailey, filed their bill in the said chancery court, setting up their interest in the said trust property, contingent upon the failure of their mother in her lifetime to dispose of the same by will .or otherwise, and making similar allegations as grounds for annulling the said trust deeds and the said sale under them, to Pizzini. The cause was referred to a commissioner to enquire as to the alleged insanity of the trustee; as to his power under the settlement, to execute trust deeds to secure those notes; and as to the alleged usury in the transactions. Numerous witnesses deposed as to the mental capacity of A. M. Bailey in April, 1877. The testimony, though variant and conflicting, preponderated strongly to the conclusion that he was then incapable of transacting that business. But the commissioner thought differently and reported that A. M. Bailey was then competent to contract; that the trust deeds were binding on Mrs. Bailey and her children; and that the transaction was not usurious. The plaintiffs excepted to this report. The chancellor overruled the exceptions, and Mrs. Bailey, and her children, also, appealed from his decree.</p>

Ferguson and Sarah C., his wife,'Grief T. Cralle, Jr., and Mary A. Hatchett, were plaintiffs, and H. H. Epes, administrator of Travis H. Epes, deceased, E. S. Epes, administrator of T. H. Campbell, deceased,- and Thomas J. Owens, administrator of James A. Scott, deceased, were defendants. In 1859, Mary Carter died in Nottoway, testate, and Travis H. Epes qualified as her executor.

Pettyjohn and Joseph Pettyjohn, executors of Joseph Pettyjohn, deceased, Charles Pettyjohn, administrator of G. W. Pettyjohn, deceased, William H. Curie, administrator of William Pettyjohn, deceased, C. T. Hill, administrator of Wyatt Pettyjohn, deceased, and also of Elizabeth Wells, deceased, and Eliza C. Ridgeway, Rhoda Ridgeway, and Harriet Ridgeway, executrices of Mary or Polly Ridgeway, deceased, are complainants, and John W. Daniel, executor of Seth Woodroof, deceased,…

<p>1. Board of Education—Origin—Powers.—Constitution, art. viii, \ 2, constitutes the governor, attorney-general and superintendent of public instruction, a board of education for the state. Act approved nth July, 1870, (Code 1873, ch. 78, \ 7, clause 4,) empowers this board to appoint and remove district school trustees, until otherwise provided, and applies as well to cities and towns as to counties.</p> <p>2. Idem—School trustees—Counties—Cities and towns.—By act approved nth January, 1877, (Acts 1876-7, ch. 12, p. 9,) said clause 4 is repealed as to counties, and the power of the board of education to appoint and remove trustees therein, ceased after 1st July, 1877; but not so as to cities and towns; as to which the then law still prevails, and is found in Code 1873, ch- 79, § 7- By said § 7, the right of the board of education is recognized to appoint originally all the school trustees in cities. The city councils are authorized to supply any vacancies which may exist or occur in the school board, within sixty days after their occurrence, provided, however, the city council, as soon as practicable after the passage of this act (31st March, 1871,) shall designate which of the trustees then in office shall go out at the end of one, which at "the end of two, and which at the end of three years. That section concludes thus: Should the city council in any case fail to act within the time prescribed (sixty days,) “it shall be the duty of the board of education to fill the vacancy or vacancies without further delay.”</p> <p>3. School Trustees—Classification—Vacancies.—Without the classification required, there could be no regular plan of succession to the trusteeships. At the end of three years from the original appointment, the terms of office of all the trustees expired, and it became the duty of the board of education to fill the vacancies, if the city council failed to act within the time prescribed.</p> <p>4. Idem—Officers—Oath of office—Vacancies.—School trustees are officers, and as such are embraced by constitution, art. iii, $ 6, declaring that “all persons, before entering upon the discharge of any functions as officers of this state, must take and subscribe the following oath or affirmation.” This oath is a condition precedent to the discharge of official duties as school trustees, and the failure to take this oath causes a vacancy, which, unless filled by the city council within the prescribed period, must be filled by the board of education.</p> <p>5. Idem—Case at bar.—The school system as regulated for cities, went into operation in the city of R., in May, 1871. The city council failed to classify the school trustees as required by law. The individual trustees failed to take and subscribe the required oath of office before entering on the discharge of their official duties. The board of education, February 17th, 1883, appointed C. and eight others school trustees for said city, “ to fill vacancies caused by trustees -not qualifying.” Duly commissioned they qualified and organized, and demanded the records, &c. of the public free schools of said city, from R. and eight others, who were then acting as such school trustees, and who refused to surrender-Thereupon C. and others petitioned for a mandamus. The rule nisi being served on R. and others, they made return, claiming to be the rightful trustees, and denying that their offices were vacant; that the oath of office was required of them; and that the failure to take it, caused such a vacancy as the boárd of education could fill. Petitioners demurred to this 1 eturn.</p> <p>Held:</p> <p>x. School trustees are required to take and subscribe the oath of office as a condition precedent to entering on the discharge of their official duties, and the respondents failure to take it within the prescribed time, caused vacancies in their trusteeships. The city council, failing to act within the prescribed time, it became the duty of the board of education to appoint, and having appointed the petitioners they constitute the lawful board of school trustees for said city.</p> <p>2. The demurrer to the return must be sustained, and the writ of mandamus awarded.</p>

Appeals from decrees of circuit court of Northumberland county, rendered 26th October, 1880, in the causes of William Chilton, assignee of Lloyd T. Smith, against Smith & Wimsatt and Lloyd T. Smith, and said Chilton, as' such assignee, against Boyd M. Smith and Lloyd T. Smith. The defendants, except Lloyd T. Smith, resided in the District of Columbia, and there acknowledged legal service of the process in the suits.

<p>1. Fraud—Rescission—Repayment—Case at bar.—F., G. and J. planned to inveigle L. into purchasing certain land. They knew he could not get a good title to it. They had been informed that he would not purchase unless that could be done. They misrepresented material facts, as to which he, being at a distance, had not equal means of information, and for a true statement whereof he had a right to rely on them. On a bill by L. against F., G. and J., for rescission of the contract and deed whereby F. conveyed the land to L., and for repayment of $3,500, cash paid, and for. surrender of his bond for $1,500, deferred payment, on the ground of fraudulent misrepresentation or false representation as to validity of title and freedom from encumbrance of the widow’s dower.</p> <p>Held :</p> <p>1. A false representation of a material fact constituting an inducement to the contract, on which the purchaser had a right to rely, is a ground for the rescission of the contract by a court of equity, although the party making the misrepresentation was ignorant as to whether it was true or false; and the real enquiry is, not whether the vendor knew the representation to be false, but whether the purchaser believed it to be true and was misled by it into the contract. In such case, whether the false representation was innocently or wilfully made, the effect is the sanie on the purchaser.</p> <p>2. To entitle the person making the misrepresentation to defend on the ground that the purchase 0was not induced by it, he must demonstrate that it was not relied on by the purchaser.</p> <p>3. This is a case of actual fraud, which entitles L. to relief in equity by rescission of the contract and return of the money and bond given for the land.</p>

<p>Appeal of George E. Smith, in his own right and as administrator of Benjamin E. Smith, deceased, Sally B. Smith, Nannie E. Smith, Lucius L. Barrow and Mary L. his wife (born Smith), B. E. Smith, Jr., Mary Smith, Charles M. Hardy and Susan L. his wife (horn Smith), Annie O. Smith, Bessie C. Smith, Wm. E. Smith, Stacey Smith, Georgie Smith, and Thomas O. Smith, the six last being infants, and suing by their next friend, George E. Smith from a decree of the circuit court of Lunenburg county rendered 12tli November, 1880, in the cause of John B. Phillips against them, seeking to enjoin a judgment in unlawful detainer against him for recovery of certain real estate, and specific performance of an agreement of their ancestor, B. E. Smith, deceased, intestate, for the conveyance of said real estate in consideration of the payment of part of a debt which Phillips owed intestate. The facts are stated in the opinion.</p>

<p>Appeal from decree of circuit court of Lancaster county rendered 28tli January, 1875, in a chancery cause wherein James L. Avis and Sophia V. his wife, and others, were complainants, and William K. Lee and Mary A. his wife, Arthur H. Lee, Warren Eubank and William Henderson were home, and Henry Duvall and George L. Iglehart, merchants and partners trading in the name of Duvall 8s Iglehart, in the city of Baltimore, were absent defendants. The object of the suit was to vacate a conveyance made by Wm. K. Lee and wife, on 7th December, 1865, to Duvall 8s Iglehart, of all his land, stock and furniture in Lancaster county, Virginia, in consideration of $6,000, expressed on the face of the lease to have been paid, of all which property, however, grantor retained possession, under a parole lease, on the ground that the same was made with intent to defraud the plaintiffs and others who are creditors of said grantor.</p> <p>By its last decree the circuit court dismissed the plaintiffs' hill with costs, and they obtained from one of the judges of this court an appeal.</p> <p>The opinion states the facts and the proceedings sufficiently for the comprehension of the points decided.</p>

<p>On petition for a writ of mandamus. Opinion states the facts.</p>

<p>1 Laches and Lapse of Time.-It is an inherent doctrine of courts of equity to refuse relief where there have been gross laches in prosecuting rights, or long and unreasonable acquiescence in the assertion of adverse rights. This doctrine, founded on considerations of natural justice and public policy, is always firmly enforced, especially where the immediate parties to the transactions are dead. 2.</p> <p>2. Idem.-Harrison and als. v. Gibson and als., 23 Gratt. 212, approved. 3.</p> <p>3. Idem-Case at bar.-Testator devised his land and died in 1851. In 1852, under decree, it was sold by his executors to pay his debts. In 1858 sale was confirmed and an account ordered of the administration, and of balance of purchase money unpaid, and to whom due. Vouchers were laid before a master and lost durante bello. • The purchase was transferred to B. H., one of the executors, with the,consent of the others. After the war B. H., adjudicated a bankrupt, surrendered the land as assets. It was sold in parcels, the purchasers paying for im- proving and occupying the same. The devisees, with notice, stood silently by; but in 1876, after the death of all the executors and the master, and the loss of the papers, brought ejectment. Purchasers en- joined. Devisees answered, denying all the material allegations. Ac- counts were taken, and a decree entered to sell the land to pay balances held to be due devisees. On appeal&emdash; The</p> <p>Held:</p> <p>deviseés, though in form defendants, are in substance plaintiffs, seeking by ejectment to disturb a status, in which, without suffi- cient explanation, they have long acquiesced; and it is too late for them to obtain relief here without disregard of established principles. Appeal</p>

<p>1. Equitable Jurisdiction-Commissioner's report-Case at bar.-In 1856 J., being in extremis, granted, to take effect at his decease, to I. land and a $1,200 bond ; I. to pay J.’s heirs $1,200, and provide for J.’s widow and infant whilst at I.’s house. Before J.’p decease the land was sold, and T.’s $400 bond, part of the price, delivered with the $1,200 bond to I. In same year J. died. Next year the infant died, and the widow left I.’s house, taking with her, without I.’s knowledge, the two bonds. The bonds she delivered to J.’s administrators. The $1,200 bond was collected. Judgment was got on the $400 bond against T., who reserved his defence for the equity forum. In 18581. sued J.’s administrators, and after deducting $255, collected by him on the $1,200 bond whilst in his possession, got judgment for $187.18, with interest from 12th May, 1854. In • 1871 these administrators sued I. for the $1,200 he was to pay under the grant of 1836 to J.’s heirs, and got judgment. T. got injunction to judgment on $400 bond. I. got injunction to judgment against him. In these causes, consolidated, in 1878, an account having been decreed and taken, commissioner reported that $255 of the $1,200 bond was paid to I., and $1,036.35, amounting with interest to $1,339.55, was paid to administrators of J., from which the $1,200 judgment against I. being deducted, left $139.55 due I. To this report no exceptions were made. Yet court below decreed against I. the payment of $648.</p> <p>Held :</p> <p>1. 'The report should have been sustained, and a decree conformable thereto entered, and the injunction perpetuated in the cause of I. v. J.’s administrators.</p> <p>2. I., not having received any part of the $400 bond, was not responsible therefor. J. paid full value for it. Questions arising concerning it arose between T. and J.’s administrators. If T. had and lost any rights, it was not by default of I.</p> <p>3. The injunction in suit of T. v. J.’s admininstrators should be dissolved as to T., but perpetuated as to I.</p> <p>2. Idem—Limitations at law—Judicial duty.—The fact that a person, if left to his legal remedies, will lose his debt if the statute of limitations be pleaded, is no ground of relief in equity. Courts should adjust the rights of parties according to the law, and leave the consequences to take care of themselves. See Moncure, P., in Dobson v. Culpeper and wife, 23 Gratt. 359.</p>

Appeal of Hannah Ayres to decree of circuit court of Patrick county, rendered in vacation, January 4th, 1882, refusing her a new trial, to a judgment of said court on its law side, entered by default, October 16th, 1880, against her in favor of J. Turner Morehead, administrator of John M. Morehead, deceased, for $543.63, with interest thereon from 19th September, 1858, till paid, and $7.65 costs, subject to credit for $61.50, paid October 8th, 1859.

<p>Error to judgment of circuit court of Bedford county, rendered March 2d, 1883, affirming judgment of county court of said county, sentencing John W. Oliver to imprisonment in the pententiary for a term of three years, as accessory before the fact to the crime of feloniously burning a depot of the Eichmond and Alleghany Eailroad Company, in said county.</p> <p>The evidence tended to show that Oliver employed two hoys, aged respectively, nine and fourteen years, with whom he had heen intimate, to burn said depot, against the keeper whereof he had a grudge. After the younger had been arrested, he told the officer that Oliver had employed him and the older boy to burn the depot, and that they did so. At a former trial each had been examined by the court touching his knowledge of the obligation of an oath, and the court being satisfied as to their competency, admitted them as witnesses against Oliver. The jury did not agree on a verdict, and were discharged. At a subsequent trial during the same term, the prisoner’s counsel moved the court to reexamine these witnesses as to their knowledge of the obligation, of an oath, which the court declined to do. He then moved to exclude them (1.) Because they showed themselves to be “approvers,” and (2.) Because they showed themselves to be the principal felons, and charged the prisoner as accessory before the fact, and (8.) Because their statements criminating the prisoner, made after the object of the conspiracy was ended, were evidence only against themselves, which motion was also overruled.</p>

<p>1. Board of Education—District school trustees.—Prior to nth January, 1877, the duty of appointing and removing district school trustees was devolved on the state board of education by Code 1873, chapter 78, section 7, clause 4.</p> <p>2. Idem—Idem—School trustee electoral board.—By Acts 1876-77, ch. 12, p. 9,—clause 4, section 7, chapter 78, Code 1873, was repealed, and the power of appointing and removing district school trustees was vested in a “ school trustee electoral board,” to be composed of the county superintendent of schools, the county judge, and the attorney for the commonwealth in each county.</p> <p>3. Evansham school district—is not a city of the first or second class mentioned in section 2, chapter 79, Code 1873, but is a mere school district in a county, or a separate school district, such as is contemplated by the act approved 13th February, 1877. In the former case the school trustees of that district must be appointed by the “ school trustee electoral board” of Wythe county; in the latter case the school trustees of that district must be appointed by the town council of Wytheville.</p> <p>4. Idem—School trustees—Board of Education—Case at bar.—The state board of education having been officially informed that F. and two others who had been appointed school trustees of Evansham school district in Wythe county, had failed to take the oath of office and qualify according to law, and that the town council had failed, within the time prescribed by law, to fill the vacancies thereby created, appointed McT. and two others to fill said vacancies: who took the oaths according to law and organized, and demanded of C. and his associates the books, &c., of the said school district, but they refused to surrender the same. Whereupon McT. and his associates presented to this court their petition for a rule against C. and his associates, to show cause why a peremptory mandamus should not issue to compel them to deliver the said books, &c., to petitioners. The rule was awarded and served on C. and his associates who demurred to the petition :</p> <p>Held :</p> <p>1. That the duty of appointing the school trustees for Evansham school district is not vested in the state board of education.</p> <p>2. That the petitioners having received their appointment only from •the said state board of education are not the legal school trustees for said school district.</p> <p>3. That the demurrer to the petition must be sustained and the rule discharged.</p>

<p>Appeal of Margaret Hatcher and Daniel G. Hatcher, personal representatives of David B. Hatcher, deceased, and said Daniel G. Hatcher, in his own right, Charles Dehart, J. F. Moore and W. A. Moore, from decree of circuit court of Floyd county, rendered 28d November, 1882, on the bill of review therein filed 10th March, 1881, by George M. Hatcher and others, against the appellants and others, for the purpose of reviewing and reversing decree entered 15th October, 1879, in the cause styled, “ Hatcher’s heirs v. Hatcher’s administrator.” The last mentioned decree confirmed the settlement of the accounts of said personal representatives, including the allowance to them credit for two .payments on a debt of their intestate’s estate to John C. Staples, amounting to nearly $4,000. To make these payments, the administratrix, in 1860, borrowed on her individual responsibility money of W.- A. Caldwell, and, to repay Caldwell in part, she similarly borrowed money of Israel Lash. Daniel G. Hatcher purchased the judgments Caldwell and Lash obtained against her for the money they loaned her. H. D. Reynolds owed the estate a debt, and in the suit of Reynolds v. Hatcher’s administrators, &c., land was decreed to be sold to pay that debt. At the sale Daniel G. Hatcher bought the land. In the suit of Hatcher’s heirs v. Hatcher’s administrators, the administration accounts were then in process of settlement, and it was ascertained that the estate owed Daniel G. Hatcher, the administrator, more than the price of the Reynolds land. Thereupon, in a decree entered in November, 1877, in the two causes last aforesaid, heard together, the fact of such indebtedness to Daniel G. Hatcher was recited, and the commissioner who made the sale was directed to surrender to 'him his bonds given for this land, and to execute a deed conveying the land to him; and the cause of Reynolds v. Hatcher’s administrator, &c., was ordered to he stricken from, the docket; all whereof was accordingly done.</p> <p>The bill of review did not, in terms, pray for the review and reversal of the decree of November, 1877, hut only for the review and reversal of the decree of October, 1879; but as the latter confirmed the settlement of the administration accounts, showing the indebtedness of the estate to Daniel G. Hatcher, on the ground of which indebtedness the former decree proceeded in directing the surrender of his bonds and the conveyance to him of the Reynolds land, the bill of review necessarily affected the decree of November, 1877. And accordingly, by the decree of November, 1882, on the hill of review, the circuit court-disallowed credit for the two payments made as aforesaid to John C. Staples, but treating the Caldwell and Lash debts as debts due from the estate, allowed credit for the partial payments made thereon and decreed in favor of Daniel Gr. Hatcher only for the sum of $985, with interest on $699.66 thereof from 14th September, 1882; but proceeding to reverse the decree of November, 18’7'T, decreed that he had only paid for said land to the extent of said sum decreed him, and that, unless he paid within sixty days the purchase money, $4,000, and its interest, subject to credit for the amount decreed him, the said land be sold. •</p> <p>Before the bill of review was filed, Charles Dehart and others obtained judgments against Daniel Gr. Hatcher, which were liens on said land, and J. P. Moore and others had a deed of trust thereon; but the equities of the heirs of D. B. Hatcher, deceased, were adjudged by the decree of November, 1882, to be paramount to the equities of the judgment and trust lienors. The remaining facts and proceedings are stated in the opinion of the court.</p>

Yost against J. J. G-eisler, administrator of J. N. Mallicote, deceased. In August, 1877, Mallicote sold to Yost, at the price of $5,000, a tract of land in said county, which the vendor represented as containing certainly two hundred and forty, and probably two hundred and fifty acres, and for which, he said, he ought to have had at least twenty dollars per acre. The land was conveyed, the cash payment made, bonds executed for deferred payments, and possession given.

, against Abram Brown and others. In 1866, James Brown, Sr., conveyed to William M. Gray a tract of land in said county, reserving an iron ore bank, &c., therein. In 1866 he sold by parol an adjoining tract and the ore bank, &c., to his sons, James Brown, Jr., and Abram Brown, and gave them possession.

Carter, plaintiff, against the administrators and heirs of Griggs Hampton, deceased, defendants. Ezra Nuckolls and seven others executed on 8th August, 1854, their bond for twenty-three hundred dollar's, payable with interest from 2Tth December, 1852, to Griggs Hampton, on or before 2'7’th December, 1862.

cause therein pending of A. J. Breeding, plaintiff, against Wm. H. Davis and als., defendants. Randolph Olark died 11th April, .1877, seized of real estate in said county, whereof sixty-nine acres descended upon his daughter, Eliza L., the wife of Hardin L. Orum. Of their marriage there was issue born alive.

Hill and the other heirs of Mary Hill, plaintiffs, against E. H. Umberger, administrator of Ephraim McGavock, deceased, and the administrator of, and David Sayers and the other heirs of H. D. Sayers, deceased, and others, defendants.

<p>1. Criminal Practice—Evidence—Res gestee.—The admissibility of declarations of the injured party as part of the res gestee, depends on whether or not they were made recently after the injury, before sufficient time had elapsed for the fabrication of a story.</p> <p>2. Idem—Idem—Examination of accused.—Code 1873, chapter 195, section twenty-two, provides that “ in a criminal prosecution, other than for perjury, or an action on a penal statute, evidence shall not be given against the accused of any statement made by him as a witness upon a legal examination.” Therefore, evidence that the statements of witnesses for the accused conflict with the testimony of the accused as delivered on his examination as a witness at a former trial, is inadmissible.</p> <p>3. Idem—Idem—Idem—Case at bar.—In M.’s store, at night, a man entered, and suddenly, without apparent provocation, shot M. through the head. M. exclaiming, “You have killed me,” ran out at the door, around the house, to the door of another room in the same house, occupied by R., which door was eighty feet from the point in the store at which he was shot. Upon being admitted he said: “I am shot; William Kirby has shot me.” Not more than two minutes elapsed between the shooting and this declaration. At a former trial accused testified as a witness in his own defence. At the succeeding trial he did not. Evidence was introduced by the commonwealth to prove that statements made at this trial by witnesses for the defence were in conflict with the testimony of the accused at the former trial.</p> <p>Held :</p> <p>1. The declarations of the injured party were admissible as evidence as part of the res gestee. Under the circumstances, it is unreasonable to suppose that there was time or capacity to fabricate a story.</p> <p>2. The evidence to prove conflict between the testimony of accused at the former trial, and the statements of witnesses for the defence at the last trial being objected to, was inadmissible.</p>

Taylor alias Thomas Whorley to confinement in the state penitentiary for the term- of four-and-a-half years, the said Taylor having been found guilty on an indictment for Stealing a horse. The facts- and the points raised are fully stated in the. opinion of the court.

<p>Appeal from decree of circuit court of Shenandoah county, rendered September 15th, 1882, in a suit wherein the Baltimore and Ohio Railroad Company was plaintiff, and George W. Koontz, treasurer of said county, was defendant.</p> <p>At their regular meeting on 25,th July, 1881, the board of supervisors of Shenandoah assessed and taxed for county and school purposes, for the year 1881, the Strasburg and Harrison-burg branch, the Winchester and Harrisonburg branch, and the Virginia Midland branch, of the Baltimore and Ohio railroad, at $5,000 per mile, for the thirty-two, three, and two miles they respectively pass through the county, thirty-five cents per mile, and their depots, &c., at $8,000, thirty-five cents per $100; making an aggregate tax of $675.50.</p> <p>The state assessment of those railroads for its purposes had not then been made. The board of public works made the assessment on 28th September, 1881, as of 1st February, 1881, for the state taxes thereon for that year.</p> <p>The Baltimore and Ohio Railroad Company paid the taxes so assessed and levied to the said Koontz, as such treasurer.</p> <p>Afterwards, the treasurer having been notified by the auditor of public accounts in December, 1881, of the assessment made by the board of public works of those railroads at $15,000 per mile, called the attention of the board of supervisors of his county to that fact, and on 17th April, 1882, that board ordered the treasurer to collect taxes for county and school purposes for the year 1881 from the Baltimore and Ohio Railroad Company on its said branches, assessed at $15,000 per mile, and on the said depots, &c., assessed at $8,000, at the same rate, making an aggregate of $1,975.50 on the whole, but to give credit for $675.50 already paid on same. Accordingly, the treasurer levied on engine No. 852, the property of the company found in his county. Whereupon, the company obtained an injunction from the circuit judge of Shenandoah, restraining the treasurer from further proceedings until further order. The defendant answered. Upon hearing the cause, the single question was submitted: “Was it competent for the board of supervisors to order the levy of April lTth, 1882, after the treasurer had collected the tax on the said railroad levied for hy the hoard on the 25th July, 1881, as in the hill and proceedings mentioned?” Answering that question affirmatively, the circuit court dissolved the injunction with costs. From this decree the said company obtained an appeal and supersedeas.</p>

<p>On petition of Charles Gr. Howison for a writ of mandamus to compel John C. Weeden to surrender to him the office of judge of the county court of Prince William county. The facts are fully stated in the opinion.</p>

<p>1. Judgment Liens—Priorities.—Code 1873, ch- 182, § 6, makes every judgment rendered in this state, a lien on all the debtor’s real estate, and the prior judgment hath -priority as between the judgments, whether docketed or undocketed.</p> <p>2. Idem—Purchasers for value without notice—Priorities—Docketing jzidgments.—But by Code 1873, ch. 182, £ 8, no judgment is a lien on real estate as against purchasers thereof for a valuable consideration without notice, unless it be docketed in the mode and within the time prescribed. If docketed, the judgment, if prior in time, hath priority over such purchaser.</p> <p>3. To docket his judgment is creditor’s privilege, not his duty. If he fails to docket it, he may lose his lien on the real estate aliened to a purchaser for value without notice.</p> <p>4. Idem—Idem—Case at bar.—W. owned two tracts of land, viz: “Hart’s bottom” and “Connery.” J. obtained in April, 186S, a judgment against W., which was not docketed until July, 1870. After the date of J.’s judgment, but before 22nd April, 1870, B. and others obtained judgments against W., which were duly docketed. W., on 22nd April, 1870, executed a trust deed on “ Hart’s Bottom,” to secure a loan of $15,000 from G., which deed was recorded 2nd May, 1870. In contest for priority between G. and the judgment creditors;</p> <p>Held:</p> <p>1. The judgment of J. from its date was a lien on all the real estate of W., and though undocketed, being prior in date, hath priority of lien over the judgments of B. and others, as to both tracts.</p> <p>2. J.’s judgment being undocketed at the time of G.’s deed, and G being a purchaser for value without notice of J.’s judgment, the lien of that judgment on “Hart’s Bottom,” was lost as against G., whose deed, as to that tract, hath priority over that judgment.</p> <p>3. The judgments of B. and others being docketed at the time of G.’s deed, have priority over that deed as to “ Hart’s Bottom,” but G. hath the right to hold that tract of land as against these judgments, until the real estate of W. (if any) unaliened at the date of G.’s purchase has been exhausted. Code 1873, ch- 182, $ 10.</p> <p>5. Idem—Priorities—Statutory rights.— Liens of judgments and their priorities and the right to enforce the same, are plain legal rights, expressly created by statute, and cannot be judicially modified to soften the supposed hardship of secret encumbrances.</p>

Mcllhany, administrator of Nicholas K. Trout, deceased, the Merchants Bank of Baltimore, Loeb Brothers and others, were plaintiffs, and Jacob Warwick, trustee of his wife, Ellen Warwick, and her children, M. G. Harman’s administrator and heirs and others were defendents.

<p>1. Personal Representatives-Confederate currency-Case at bar.-In 1859, suit in A. county, in names of widow and heirs of P. B., all of whom, during the war, were outside Confederate lines, and non-residents, to sell house and lot descended upon them. Sale in i860 to R. B-confirmed. F., administrator of P. B., as commissioner, collected nearly the entire purchase money in gold, or its equivalent. Under decree of 10th June, 1863, in that suit, to which he was no party, and which involved no settlement of his accounts and indebtedness, without notice to widow and heirs, F. deposited the amount of the purchase money in Confederate currency with the general receiver of the court. In 1873, widow and heirs filed bill, treated as ancillary to original suit, and as petition to rehear decrees therein, to hold F. and the property liable for the purchase money, which bill the circuit court sustained. On appeal by F.</p> <p>Held : (Lacy, J, dissenting.)</p> <p>1. The deposit of the Confederate currency, with the general receiver, under the decree of June, 1863, did not discharge the administrator from liability for the payment of that purchase money.</p> <p>2. It was his duty either to have invested that money, so as to have it forthcoming when distribution could be made, or to have applied to a court of chancery, by appropriate proceedings, for its aid and direction.</p> <p>3. It was not competent for the court below, even if it so intended, to authorize the administrator to relieve himself of responsibility by a deposit of a depreciated and depreciating currency.</p> <p>4. That decree, entered without notice to those interested in the fund, and in a cause wherein the administrator was no party, was a void decree, and may be-so treated collaterally.</p> <p>5. But the decree being interlocutory, and the bill being considered a 'petition for its rehearing, under the circumstances it was proper to rehear it and set it aside.</p>

Thurmond, hy her next friend, E. S. Peale, against D. H. Ralston, sheriff of said county, and as such, administrator de bonis non of Jonathan Peale,… Held: as guardian de facto of his children, the farm and mill, and received the rents and profits, till 1853, when the property went into the possession of said A. ET. Peale. To assist said Robert A. Thurmond in business, when, after his intermarriage with Ellen V., they were needy, Jonathan Peale advanced him $982.91.

<p>Error to judgment of circuit court of Rockingham county, rendered October 28th, 1881, in an action of debt wherein William Minnick for &c., was plaintiffs, and Samuel 0. Williams was defendant. The action was brought on the following writing obligatory:</p> <p>“Article of agreement made and entered into this 4th October, 1869, by and between William Minnick of the first part, and Williams & Slaymaker of the second part, whereby the said Min-nick agrees to let to said Williams & Slaymaker the store-room and cellar in the hotel building at Broadway station, Orange, Alexandria and Manassas railroad, with all the appurtenances attached thereto, and the warehouse at the north end of the storeroom, with the grounds extending from the lower end of the warehouse next to the creek, running north to the public street, and thence to the said road, and from the street to the south corner of the store-room, running out to the railroad, to have and to hold full possession of the said rooms and apartments and grounds as above described for and during the term of two years, to commence from the 4th October, 1869, at and for the sum of $150 the first year, and $200 the second year, payable in monthly instalments, either in goods at regular prices or current money; and it is further agreed that when the lessees quit the premises they shall leave them in as good condition and repair as they are now, reasonable wear and tear excepted in the transaction of their business.” This was signed and sealed by the parties. The declaration set forth the contract as the consideration for which the defendant “ promised to pay to the plaintiff the sum of $150 for the first year, meaning thereby the year commencing October 4th, 1869, and ending October 4th, 1870, and the sum of $200 for the second year, meaning thereby the year commencing October 4tli, 1870, and ending October 4th, 1871,” and concluded with the usual averment in debt. To this declaration the defendant demurred, on the ground that covenant, not debt, was the proper action on such an instrument. The circuit court sustained the demurrer and dismissed the suit. To this judgment Minnick obtained a writ of error from one of the judges of this court.</p>

<p>Appeal from decrees of the circuit court of Rockbridge county, rendered 26th November, 1881, and 1st April, 1882, respectively, in the chancery cause of A. A. McCurdy and William T. McCurdy, executors of John McCurdy, deceased, and other judgment creditors of William Jordan against J. D. Lavell, William Jordan and others. In 1864 John McOurdy got judgment in said court against William Jordan and his sureties for $1,200, interest and costs, subject to sundry small credits. This judgment was never docketed anywhere. Others also obtained judgments against Jordan. On 21st November, 1871, he was regularly discharged as a bankrupt. John Mc-Ourdy having died, his executors, at April term, 1872, of said court, had issued a writ of scire facias, suggesting the death of John McOurdy, against William Jordan and his sureties, to show why those executors should not have execution of said judgment, which writ was executed upon William Jordan and his sureties, who appeared and demurred to the writ; but the demurrer was overruled. Thereupon the court rendered judgment upon the scire facias for the sum of $1,200, and interest and costs, subject to the sundry small credits, as specified in the original judgment. This judgment on the scire facias was docketed in Rockbridge and Augusta counties, where William Jordan then owned some lands, and where were lands aliened by him to Lavell and others since the rendition of this judgment. In January, 1881, those executors and others filed their bill to enforce the lien of the judgment on the scire facias, and other judgments, on the said lands. The defendants demurred, and answered, denying that a judgment on a scire facias creates a lien on lands, that the court had jurisdiction to render the judgment, and that said judgment was valid, and also setting up the bankruptcy of William Jordan as a discharge of the judgment, and other matters of defence. The circuit court overruled the demurrer*, and decreed that the judgment on the scire facias be enforced on the said lands in the inverse order of their alienation. From this decree, said Lavell and William Jordan-obtained an appeal.</p>

<p>Appeal from decree of circuit court of Augusta county, entered November 30tb, 1880, in the consolidated causes of James A. Frazier’s guardian, against James A. Frazier, of Stephen A. Porfer and wife against John W. Frazier’s administrator, William Frazier, John T. Randolph, and others, and of Porter and wife and James A. Frazier against William Frazier, John T. Randolph and others.</p> <p>The first suit was brought in February, 1854, in the circuit court of Bath county, by William Frazier and William M. Tate, guardians of James A. Frazier, only child of John W. Frazier, deceased, then about six years of age, and Elizabeth, the widow of said John W. Frazier, and afterwards the wife of Stephen A. Porter.</p> <p>The object of this suit was to make sale of certain land belonging to the estate of John W. Frazier, deceased, situated in the couaty of Bath, and was what is called a “friendly suit,” and was prosecuted in the said county until 1856, when it was removed to the circuit court of Augusta county. Such was the object of the suit, but by a vacation order entered 4th January, 1855, William Frazier was directed to settle his account as administrator of John W. Frazier, deceased. The account having been taken, stated and reported on the 25th April, 1855, the said widow filed exceptions to the report, and the litigation began, which was terminated in the circuit court by the decree of the 30th of November, 1880, from which James A. Frazier obtained from one of the judges of this court on 8th January, 1883, an appeal. The facts are fully stated in the opinion of the court.</p>

<p>Appeal from decree of circuit court of Eockingham county, rendered 1st December, 1880, in suit wherein Henry Lingle and others were plaintiffs, and John Cook’s administrators, D. H. Rolston, sheriff of said county, and as such administrator of Margaret Miller, deceased, and others, were defendants. This is the sequel to the case of Lingle and als. v. Cook’s administrators, 32 Gratt. 262. In 1860, John Cook died in said county testate, leaving real and personal property of more than one hundred thousand dollars value, hut neither wife nor child. By his will, which was admitted to probate 16th July, 1860, he bequeathed his estate, after the payment of his debts, to his brothers and sisters, and the children of such of them as might he dead. Robert B. Cook, Joseph Conrad, and George W. Miller, qualified as his administrators, c. t. a. In 1866 the said suit was instituted to settle the administration and distribute the estate, as was in the following year the suit of Eddins and als. v. Cook’s administrators and als. They were consolidated. Various proceedings were had until 3rd October, 1874, when a decree was entered settling the principles involved. From it an appeal was taken to this court, by which it was affirmed, and the cause went hack for further proceedings. The decree affirmed was vague and uncertain in parts, and on its face provided “that this cause stand referred to a master commissioner, with instructions to state and settle a farther distribution account, and a farther account of the fund to the credit of this cause, and that he make report to the court at its next term,” &c. In February, 1880, the circuit court modified the decree of October 3rd, 1874, which had been affirmed, so as to make it more specific. The master having filed his report, and the same being excepted to, in June, 1880, the circuit court, without passing upon the exceptions, recommitted the report, with instructions that the master make two additional statements, to-wit: one showing the account after scaling payments made to any heirs in Confederate currency, and the payments made in that currency to the Confederate sequestrator; the other showing the account disregarding those payments to the sequestrator,, but scaling such payments to the heirs. The master made report to December term, 1880. His report embraced five statements : First, showed the payments in Confederate currency to the heirs and to the sequestrator after scaling them; second, classified the heirs as to the amounts they had received as of 15th June, 1880; third, showed how and to whom the funds should be paid to equalize the heirs; fourth, showed the payments made to the heirs, disregarding all payments made to the Confederate sequestrator, and scaling all other payments in Confederate currency; fifth, showed bow and to whom the fund should be paid, disregarding payments to the Confederate sequestrator to equalize the heirs as of June 15th, 1880. By its decree of 1st December, 1880, the court confirmed the first, second and third statements, and disapproved the fourth and fifth statements, thus allowing the administrators credit for the scaled value of Confederate currency payments to any of the heirs, and the payments made under compulsion to the Confederate sequestrator. Ho such questions arose, or were decided on the first appeal. From this decree the administrator of Margaret Miller obtained an appeal from one of the judges of this court.</p>

<p>Appeal from four decrees of circuit court of Amherst county-entered 28th of August, and 15th October, 1860, and 15th April and 2Sd May, 1881, respectively, in the cause of Nancy Dillard, the widow, and Martin Webb and Anne, his wife, and others, heirs of John Dillard, deceased, plaintiffs, against Stephen T. Dillard, the administrator, as such, and himself and Sallie J., his wife, and others, heirs of the said decedent, defendants.</p> <p>The object of the suit was to settle the administration accounts, and distribute the personal and partition the real estate of the decedent, who died intestate in August, 1859. The court below held the administrator accountable de bonis propriis for taxes to the amount of $800, paid by him out of the personal estate of his decedent, from 1864 to 1871 inclusive, to the officers charged by law with the duty of collecting the same, the real estate whereon the taxes were assessed, being during that period charged, not to the heirs, as it should have been, but to the estate. The decree confirming the partition, was rendered the 27th August, 1864. The real estate was not transferred pn the land-books to the heirs, until 1871. The administrator was also held accountable for money which he, on his ex parte affidavit denied that he had, or could, by due diligence, have collected. But having been appointed special commissioner to collect and pay over the several sums assessed against the heirs and distributees to equalize the division of the property, the said Stephen T. Dillard was not charged as administrator, with those sums. Of this exoneration, the appellees complained. From these decrees the said Stephen T. Dillard, as such administrator, obtained from one of the judges of this court an appeal.</p> <p>The other points raised, are sufficiently set forth in the opinion.</p>

Green, and W. P. Sadler against Abraham Click, David Click and others.

<p>Wills-Executors-Sureties-Liabilities-Case at bar.-L. made his will in 1852. He devised 104 acres to his son S., at $3,600, whereof $1,500 was advancement, balance payable in twelve annual payments ; and 103 acres to his son B., at $3,800, whereof $1,500 was advancement, balance payable in thirteen annual payments. Soon after he put devisees in possession. In 1855, S., with consent of L., conveyed his 104 acres to B., who paid him for same. L. had previously conveyed land to his son J., of the price whereof $1,500 was advancement, and held J.’s bonds for balance. By will L. directed that his wife have $100 a year out of the money payable by his three sons on said lands. Testator also directed that after advancements of $1,500 to each of his five children, and allowance to his wife, remainder, including back payments on land devised and deeded, and proceeds of personalty remaining, to be equally divided between his five children. Testator further directed that, if S. and B., or either, be unwilling to take said lands on said terms, then his .executor should sell same. L. died in 1862. S., who had been appointed executor, qualified as such, giving bond with D. and G. as sureties. The bond had been destroyed. S. proceeded to collect and disburse estate, including back payments from B. and J. In 1869, A., husband of a daughter of L., brought suit to construe will and settle estate. All the heirs and the sureties were parties. Decree was rendered construing will, and directing executor to retain $1,666.66 during widow’s lifetime, in order to raise her annuity, and ratifying executor’s receiving payments on the land. Widow died in 1877. Then executor brought suit against B. and his vendee, R., for $1,155, balance of back payments, claiming that sum as due on the 103 acres, nothing on the other tract. Commissioner reported balance due as $888, for which a decree was entered against R., who paid the money, and against executor and his sureties for $1,034, balance of the $1,666.66 retained to raise widow’s annuity, but the decree was set aside as to the sureties. P., a fourth son, and others, in 1880, brought suit against B., R., S., in his own right and as executor, and his sureties, to recover amount for which executor was in default. In 1882 decree was entered releasing sureties, and holding that the balance due on the 104 acres, after deducting the distributive share of S therein, was #894, and that same was a charge, under the will of L., on said land. From this decree R. appealed.</p> <p>Held:</p> <p>1. Both the evidence and the admissions of record show that the entire back payments on both the 103 and the 104 acre tracts, had passed into the executor’s hands.</p> <p>2. If the evidence and the admissions of record did not show this, yet the decrees in the suits to which the executor, his sureties and the heirs were all parties, establish the liability of the executor for the money, and the question must be regarded, for the purposes of this case, as res judicata.</p> <p>3. Under the will it was the executor’s duty to collect and dispose of the money due on the lands, according to its provisions.</p> <p>4. In the absence of evidence directly to the contrary, it must be presumed that the official bond of the executor and his sureties was in the usual form, with a condition “for the faithful discharge by him of the duties of his trust.”</p> <p>5. As the law aforetime stood, when Jones v. Hobson, 2 Rand. 483, was decided, the sureties could not have been held liable for the land payments collected by the executor; but as the law stood' when the bond was executed (Code 1849, ch- 131, l 2), and stands now (Code 1873, ch. 127, l 2), the sureties are liable therefor; and should not have been released.</p> <p>6. The 104 acres of land devised by L. to S., and sold by S. to B., and by B. to R., is not chargeable in the hands of R. with the money for which the executor is in default to the heirs.</p>

Two cases heard together—on writs of error to two judgments of the circuit court of Amherst county rendered 13th October, 1882, in the suits of Dillard and McCorkle against Thomas Dunlap, and of Karn and Hickson against same—on attachments issued second and fifth August, 1882, by a justice on the application of the plaintiffs, respectively, on the ground that said Dunlap intended to remove his effects out of this state, so that there would probably not he therein sufficient…