Volume 78 — Virginia Reports

<p>Appeal from decree of corporation court of Norfolk city. The facts are substantially these :</p> <p>In 1873 the Mercantile Bank of Norfolk, of which the appellant is now receiver, discounted for appellee, Martin, a note made by D. C. Barrand for $1,562.36, and upon which appellee was third endorser. The note at its maturity was protested for non-payment, and soon thereafter suit was instituted by the bank against the maker and endorsers. After the institution of the suit, the maker paid to the bank, on account of the note, the sum of $114.59, a portion of the principal and' the interest on the same to the 12th day of March following; in consideration of which, the time for the payment of the balance was extended until that date, and the suit was dismissed.</p> <p>At the time of these transactions, the appellee was in the city of New York, of which city he was then, and at the time of the institution of this suit, a resident. At the same time the bank held another note against the same parties for the sum of $1,944.24. In the month of April following, a suit on both notes was instituted by the bank and an attachment against the estate of the appellee, as a non-resident of the State, was sued out. In 'the affidavit made by the president of the bank, and upon which the attachment was issued, both notes were represented to be wholly unpaid. Service of process was acknowledged by the appellee in New York, who at once wrote to a prominent member of the Norfolk bar to defend him in the action.</p> <p>When the case came on for trial, upon the testimony of the attorney for the bank, the only witness examined, it appearing that the larger note had been paid, a judgment was entered on the smaller one for the full amount with interest and charges of protest, without any credit whatever.</p> <p>At that time the appellee had not been informed of the circumstances attending the dismissal of the first suit, and did not know of the partial payment by the maker of the note and the extension granted by the bank.</p> <p>In the following year, to secure payment of the judgment, he executed a trust deed conveying certain real estate in the county of Norfolk, the bank agreeing to release the lien of the judgment on the remainder of his property.,</p> <p>At that time he was aware that the partial payment had been made, and recited the fact in the deed of trust; but it does not appear that he then knew of the extension which had been granted in respect to the payment of the balance.</p> <p>Sometime thereafter the property embraced in the trust deed was advertised for sale • by the trustee, when the appellee filed his bill in the court below to enjoin the sale. An injunction was granted, which by a subsequent decree was perpetuated; and from that decree an appeal was allowed by one of the judges of this court.</p>

M. Atkinson, trustee, was plaintiff, and F. H. Bonley, G. W. Bonley, M. McCormick, R. Parker, A. R. Pendleton and others were defendants. George Bonley, on 15th January, 1880, conveyed to ~W. M. Atkinson, trustee, the stock and fixtures of his drug-store in Winchester, in trust to secure payment of two bonds, one for $500, payable eighteen months, and another for $550, payable two years after date, but the deed was not admitted to record until the 24th June, 1880.

<p>Argued at Staunton, but decided at Kichjnond.</p> <p>Appeal from decree of circuit court of .Frederick county pronounced 9th June, 1882, in the chancery cause wherein James Clevinger and others, devisees of Felix Eoberts, deceased, were complainants, and H. M. Brent, executor of said Eoberts, was defendant.</p>

26, § 1, for obstructing a road. The indictment charged “ that Chapin Bailey, on the-day of July, 1881, in the county aforesaid, did unlawfully and injuriously put and place, and cause to be put and placed upon and across the common highway leading from Hickory Grove to the mountain road, divers pieces of timher, rails and other material, and did unlawfully suffer the same to be and to remain there,” &c. Thé defendant moved to quash the indictment.

<p>Appeal of Wellington Goddin, executor of H. W. Sharpe, and L. B. Price, and Jesse P. Keesee, sureties of said executor, from decree of chancery court of Richmond city,, rendered 28th October, 1880, in suit therein pending, under the style of Rockwood v. Sharpe’s Executor and others.</p>

<p>Liquor Licenses-U S. special tax stamp.-Liquor cannot without license obtained in accordance with the laws of this State be lawfully sold therein, either on land or on board of a vessel, although the seller may have obtained from the United States government a special tax stamp therefor, it being expressly provided by § 3243 of the U. S. Revised Statutes that persons holding such stamps shall not be exempt from any penalty imposed by the laws of any State for carrying on the trade within its limits.</p>

<p>Error to judgment of circuit court of Eichmond, rendered 6th July, 1883, upon an information against Washington Edwards, a convict in the penitentiary, alleging that he was on the 10th of March, 1881, duly convicted of a felony in the corporation court of Danville, and sentenced and received into the penitentiary for a term of one year; and that afterwards, to-wit: on 5th of March, 1883, in said corporation court, said Edwards was duly convicted of another felony, and sentenced and received into said penitentiary for a term of five years; and that said Edwards had not been sentenced to the punishment prescribed by law for said second offence; and praying due process of law requiring said Edwards to make answer touching the premises as required by the act of assembly in such case provided. And said Edwards in proper person made answer that the information should not be prosecuted against him, because on the 25th of April, 1882, the governor of this Commonwealth did grant unto him a pardon for the first offence in the information mentioned. To this special plea the attorney for the Commonwealth demurred; which demurrer the circuit court sustained; whereupon the prisoner moved in arrest of judgment, which motion the court overruled, and the prisoner excepted. Then the prisoner in open court admitting that he was the person named in the information, the court considered that he undergo a further confinement in the penitentiary for the term of five years, commencing from the expiration of his present term. To which judgment the prisoner excepted, and obtained from one of the judges of this court a writ of error. The facts and proceedings in the case of Burgess Anderson are substantially the same, and both cases were heard together.</p>

Willis, for the purchase money of a tract of land sold under a decree of said court in a suit entitled,. “Robertson v. Robertson and als.,” which had been instituted under acts 1857-8, p. 46 (Code 1873, ch. 112, § 20), to sell land devised by the will of Henry Fairfax, upon contingent limitations. The said Troth defended said action on. the ground that the sale made under the decree of the said court was void, for want of jurisdiction in the court to make it.

W. Armstrong, administrator de bonis non, <5. t. a. of E. G. Yiolett, deceased, was plaintiff, and William Wolf, plaintiff in error, was defendant.

Jenkins, deceased, filed in tke causes of Trundle v. Lowe, and of Eollen’s Administrator v. Lowe. Tke object of tke petition was to cancel an assignment of two judgments, amounting to $1,350, and solvent, wkick, under circumstances of fraudulent misrepresentation, E. M. Lowe kad procured from petitioner for tke inadequate consideration of $200.

<p>1. Statutes-Construction&emdash;Taxes-Coupons.&emdash;Act of 14th January, 1882, “to prevent frauds on the Commonwealth,” &c., applies not to coupons detached from bonds issued under funding bill of 1879, but only to coupons detached from bonds issued under funding bill of 1871. Commonwealth v. H. M. Smith, 76 Va. 477. Approved.</p> <p>2. Idem&emdash;Idem- -Remedy-Cases at bar.&emdash;Tax payers prior to 1st December, 1882, tendered coupons detached from bonds issued under funding bill of 1879, in payment of their taxes to the collector, who returned that he was ready to receive the coupons in payment of those taxes as soon as they had been legally ascertained to be genuine, and the law of the case complied with. Circuit court sustained demurrer to the return and awarded mandamus.</p> <p>Held :</p> <p>1. The demurrer was properly sustained.</p> <p>2. The tax payers were entitlfed to writs of mandamus, to compel the collector to receive the coupons.</p> <p>3. That the act of 26th of January, 1882, abolishing the writ of mandamus in such cases, and providing another remedy, did not take effect until after the tender of those coupons&emdash;to-wit: not until 1st December, 1882.</p>

<p>Resulting Trusts-Parol evidence.-Where one with another’s money buys an estate and takes the conveyance in his own' name, by presumption of law a trust results in favor of him whose money is thus used. Such trust may be established by parol proof, but the proof must be clear.</p>

<p>Appeal from decree of circuit court of Amelia county, pronounced 14th of September, 1880, in a creditors’ suit brought- by W. J. Cheatham against A. V. Scott and J. E. "W. Scott in their own right and as executors or Joseph M. Scott; Mrs. P. 11. Scott, widow of Joseph M. Scott; O. M. E. Scott, Lucas E. Scott, ¥m. S. Wootton, and Cordelia M., his wife, and M. O. Cousins, an infant and grandchild of Jos. M. Scott. The object of the bill was the administration of decedent’s estate. The cause, regularly matured, was referred to a master for an account of decedent’s assets and liabilities. The account was taken and reported. The personal estate, a small one, had been received and disbursed by the executors, leaving a small balance due them. Joseph M. Scott died seized of several small tracts of land worth, in all, §4,691. The outstanding liabilities amounted to §3,868.56, whereof §2,251.38 were debts with the 'homestead exemption waived, and as to the residue there was no waiver.</p>

<p>Appeal from decree of chancery court of city of Richmond, rendered 24th February, 1881, in a suit wherein J. M. Anderson, commissioner, is complainant, and William L. Cowardin and others are defendants. Said Anderson, the appellee, obtained 16th February, 1875, a decree in the circuit court of Henrico county against William Coulling and another for the sum of $1,100, which was duly docketed in the clerk’s office of Henrico county court on 7th July following, and in the clerk’s office of the chancery court of said city on 22d June, 1876. The bill was filed to subject to the satisfaction of this decree certain real estate lying outside of the said city and within one mile of its corporate limits, which by deed dated 20th May, 1872, had been conveyed to Coulling by A. R. Courtney, commissioner, and which by deed dated 29th May, 1872, Coulling and wife conveyed to Courtney and Walford in trust, to secure the sum of ?¡!800 to James W. Courtney, the amount of the purchase money for the land advanced by the latter to Coulling. The first mentioned deed was acknowledged on 27th May, and the last on 30th May, 1882, on which last named day both were delivered, and were recorded in the clerk’s office of the county court of Henrico, but neither was ever recorded in the clerk’s office of the chancery court of the city of Richmond. Subsequently the land was sold and conveyed by the trustees to the Virginia Building Fund Company, which in turn conveyed it to William L. Cowardin, the appellant. The deed from the trustees to the company was dated 16th June, Í875, and recorded 1st July, 1875, in the clerk’s office of the Henrico county court, and not elsewhere. And the deed to the-appellant, dated 25th September, 1875, was recorded there,, and not elsewhere.</p>

<p>Error to judgment of circuit court of Powhatan county, rendered 10th April, 1881, in action of trespass on the case, wherein R. C. C. Moore, administrator of R. V. Moore, deceased, was plaintiff, and the Richmond and Danville Railroad Company was defendant. Object of the action was to recover damages for the killing of decedent, a freight conductor on said railroad, by the negligence of the defendant. Plea, not guilty, and evidence offered tending to show contributory negligence on decedent’s part. Defendant demurred to the evidence. Yerdict for plaintiff for $9,000 damages, and judgment accordingly. Defendant obtained writ of error. Opinion states the facts.</p>

<p>1. Usury—Personal defence.—The plea of usurjr is a defence personal to the debtor, certainly as concerns landed security ; and however third persons interested in the land may be incidentally affected by a usurious contract touching it, they cannot take advantage of it.</p> <p>2. Idem.—Code 1873, ch. 137, § 11 does not apply in favor of a mortgagee where a successful charge of usury has been made against a prior mortgagee 'in a suit brought against them both and such usury has been purged by the court.</p> <p>3. Equitable Jurisdiction and Relief—Case at bar.—Under two conveyances trustee held lots in D for sole use of S for her life, re- . maindér to her children. At request of S, trustee had under both conveyances power to sell and reinvest, and under one “an unlimited discretion to commute said lot into other property, and such property into land again as often as he may deem proper with consent in writing of said S, and not otherwise.” S filed her bill against trustee and . remaindermen in 1876, averring that the lots were unproductive, and asking that trustee be allowed to borrow money to build a house thereon for use of herself and children, securing the loan on the property. Under decree in the suit trustee executed trust deed to secure to P $5,000, and another to secure to C & G $2,000, money borrowed of them and used to build the house ; all which the court confirmed. Remaindermen .filed bill of review in 1880, disputing the court’s power to authorize trustee to do these things, and asking the "’reversal of the decree and the annulment of the trust deeds.</p> <p>Held :</p> <p>1. The court had jurisdiction to make the decree.</p> <p>2. But the court should have provided for the protection of remaindermen by reserving a lien on the property to the amount of its fair valuation at that time, and prior in right to any lien the trustee might create.</p> <p>3. Subject to the prior lien thus reserved, th&entire property is liable to the trust deeds executed by the trustee.</p> <p>4. Idem—Practice—Mode of sale.—As to mode whereby the property should be sold in order to accomplish justice to all parties in conformity with the views of this court, see latter part of Judge Fauntleroy’s opinion.</p>

<p>Appeal from decree of corporation court of city of Alexandria, rendered 13tli October, 1880, in cause wlierein Virginia Stewart is complainant and J. 0. O’Neal, administrator of Jobn T. Evans, Sr., deceased; Mary C. Watkins, and. Others, are defendants.</p> <p>The object of this suit was to bold the administrator-accountable for $6,000 of the bonds of the W. & O. Railroad. ■Company and a note for $4,000 on said company and secured by $12,000 of said bonds, which in 1875 Avere appraised at seventy cents in the dollar, but Avhich, by sudden •default of the company, became entirely Avorthless in 1877. The court beloAV exonerated the administrator from liability, and Mary C. Watkins, one of the distributees, obtained an appeal to this court.</p>

Four cases presenting same questions and heard together. Error to judgment of corporation court for city of Manchester, rendered 26th January, 1883, in a certain proceed-ing in the nature of quo warranto in the name of the Commonwealth at the relation of John O’Brien against T. E. Owens, to show cause by what title he holds the office of school trustee for the fourth ward in said city, and why he should not be ousted.

<p>Appeal from decree of chancery court of city of Richmond, entered in the cause of M. Rosenbaum against A. B. Goodman and ais. The object of the suit was to compel the defendants to indemnify the plaintiff for the loss of $7,600, paid by him as surety of Samuel Lisberger, under a decree of the district court of the United States at Richmond, in the cause of Storrs Bros, and, others against Engle & Son, in bankruptcy, on the ground that said defendants, Goodman and others, were, as compared with Rosenbaum, plaintiff, primarily bound therefor. The chancery court dismissed the bill with costs. Rosenbaum obtained an appeal to this court.</p>

<p>1. Statute of Limitations-Bonds-Commencement of limitation-War and stay period.-Bond payable October, 1847, not barred when action brought in 1876. By ch. 149, Code 1849, the twenty years’ limitation on bonds executed prior to July 1st, 1850, began that day, and it was suspended during the period from April 17th, 1861, to January 1st, 1869.</p> <p>2. Appellate Jurisdiction-Decree against distributees.-Where for debt of decedent there is no decree in solido against his personal representative, but severally against each distributee for his proportion of the debt which exceeds $500, substantially it is a decree against the decedent's estate, and as it exceeds in the aggregate the minimum jurisdictional sum, an appeal lies from the decree in behalf of the distributees.</p> <p>3. Presumption of Payment.&emdash;The common law presumption of payment applies only to cases where twenty years have elapsed after the right of action accrued.</p> <p>4. Idem-Repellable by proof.-e. g. by express admissions within twenty years ; by payment of interest or part of principal; obligor’s inability to pay; suspension of collection by stay-law or war ; and even by near relationship, of the parties.</p> <p>5. Principal and Surety-Creditor loses no right, as against surety, by failing to press collection from principal, unless under Code 1870, ch. 144, 4 and s, surety shall notify creditor to proceed against principal, and he fails to heed the notice.</p> <p>6. Equitable Jurisdiction and Relief-Stale demands and gross laches. Courts of equity cherish the idea that naught save conscience, good faith and diligence can incite them to activity, and they will not entertain stale demands nor encourage gross laches. But in many cases of apparent laches the delay is often justifiable.</p>

June, 1880, in chancery suit wherein Peyton S. Coles, .administrator c. t. a. of Julia Coles, deceased, was complainant and Thomas C. Ballard and the heirs and personal representatives of Valentine Head, deceased, and of Nathaniel Thompson, Jr, deceased, and of Nathaniel Thompson, Sr., deceased, and others were defendants.

<p>Error to judgment of circuit court of Fauquier county rendered in action on indemnifying bond at the relation of Samuel Triplett against James Priest, executor of John Murray, deceased, and others, defendants, who are the appellants. The questions here decided are on instructions ashed for at the trial by the defendants and refused, and on their motion for a new trial, which was overruled.</p>

<p>1. Partnership-Resulting trusts.-Where two partners agree, by parol or otherwise, that the profits of the firm shall be invested in real estate for their joint benefit, and one partner receives the profits, invests same in real estate and fakes the conveyances in his own name alone, a trust will be held in equity to have resulted in behalf of the other partner to the extent of his interest in the funds therein invested.</p> <p>2. Practice in Chancery-Issue out of chancery.-Where the evidence is conflicting, the credibility of the witnesses involved, and the chancellor feels the necessity of a trial by jury to, satisfy his conscience upon the question of fact before him for determination, it is proper to award an issue out of chancery.</p> <p>3. Idem-Idem-Verdict-Report-Decree.-Where the issue has been properly awarded, and the verdict of the jury, the report of the master, and the opinion of the chancellor, before each of whom the witnesses testified, all concur, it would be an unusual exercise of jurisdiction for the appellate court to reverse the decree.</p>

H. Summers is complainant, and William D. Nutt and others are defendants. This is the sequel to the cause of Summers v. Dame and ais., 31 Gratt. 791.

June, 1883, in the three causes above styled,, which were heard together. This appeal was argued in Staunton and decided in Richmond.

<p>1. Attachments—Non-resident.—Under Code 1873, ch. x48, ? 3> atl attachment cannot create a lien on the property of a non-resident defendant who has never been a resident of this State. Otherwise as to a nonresident who has but lately absconded from this State, ? 6 providing that the return shall be “to the next term of the circuit, county or corporation court of the county or corporation wherein the debtor last resided." Long v. Ryan, 30 Gratt. 718.</p> <p>2. Idem—Residence—Change—Onus probandi.—Residence once established, is presumed to continue until proved to have been changed ; and the burden of proving the change is on him that asserts it.</p> <p>3. Idem—Idem—Evidence.—Testimony of officer that since attachment issued, he served process in other suits against the attachment debtor by leaving copies with his wife at his house and explaining purport, is admissable as evidence tending to establish residence.</p> <p>4. Idem—Claimants of attached property—Proper issue.—When under 125 petitioner claims the attached property, the proper issue to be tried is, “whether or not petitioner has any title to, lien on or interest in the attached property or its proceeds.”</p> <p>5. Idem—Case at bar.—D, who had just been detected in forgeries, on nth March, 1880, fled the State, leaving and not providing to remove his family. A few days before he obtained by forgery or otherwise $1,050, and the morning of his flight borrowed $100. This last sum was all he was known to have taken with him. On 15th March Scott, a creditor with an undue debt,. attached under $ 3 the property in this State of D as an absconding debtor. On the 16th April, Starke, a creditor with a due debt, attached same property under l 1 as that of a non_“ resident debtor. Starke then under $ 25 filed his petition disputing the validity of Scott’s attachment, and claiming a lien thereon under his own.</p> <p>Held :</p> <p>x. The evidence shows case for attachment under <! 3, and Scott’s is valid.</p> <p>2. The evidence does not show change of D’s residence. He cannot be deemed a non-resident within the purport of § 1.</p>

pee against J. T. Stovall and A. P. Whitfield. The bank obtained a judgment against said Stovall, Whitfield and Lee for $1,500; and Lee obtained a judgment against Stovall and Whitfield for $5,880.40. Execution was issued on the first on 13th January, 1881.

Appeal of Samuel D. Carr and W. J. C. Waller from two decrees of circuit court of Albemarle county, rendered, one on 18th August, 1882, in vacation, and the other on 13th October, 1882, in the chancery cause of Effinger, &c., v. Carr, &e., wherein appellants are defendants.

Appeal of John T. Dillard from decree of circuit court of Nelson county, rendered on October 1st, 1880, dismissing his bill brought to impeach the will of Narcissa E. Dillard, deceased.

Granger, to confinement in jail for the period of nine months, and to pay a fine of three hundred and seventy-five dollars, on an indictment for publishing a malicious libel against one William J. Holmes and Laura, his wife. Opinion states the case.

<p>Appeal of Citarles Y. Morriss and Paulina B., Ms wife, and, tlie first as trustee for tlie last and Iter cMldren, from decree of circuit court of the city of Lynchburg, rendered in November, 1877, in the suit of Garland v. Garland.</p>

<p>1. Constitutionality of Statutes-Scaling judgments.-Act approved March 25, 1873, amending section 3 of the act of March 3, 1866, so far as it authorizes the re-opening of a judgment rendered since March 3, 1866, is unconstitutional and void, both because it is an infringement upon the powers of the judicial department of the government, and because it impairs the obligation of contracts.</p> <p>2. Approved.-Ratcliffe v. Anderson, 31 Gratt. 105, is approved.</p> <p>3. Idem-Prospective acts.-Though said act may be prospective and enter into contracts made since its passage, and the judgment sought to be re-opened and scaled under it may have been rendered since its passage, its unconstitutionality is not removed by those facts.</p>

Appeal of William Womack, and William Davis, and Mary L. (formerly Mary L. Womack), liis wife, from decree of circuit court of Halifax county, rendered in November, 1880, in tbe suit of William Tankersley and Martha F. (formerly Martha F. Womack), his wife, complainants, against the appellants. The object of the suit was the partition of a tract of land whereof Charles H. Womack died intestate. Appellants, William.

<p>Appeal of Caroline Leonard from decree of corporation .court of city of Norfolk, entered 19th January, 1881, in suit in equity, instituted by E. M. Lowe, executor of Abraham E. Leonard, and continued by A. J. Dalton, administrator d. b n. c. t. a., against Caroline Leonard, widow of A. F. Leonard, deceased, and others. The object of the suit was to obtain from the court a construction of the testator’s will, and instructions for the administration of the estate, real and personal. The court below decided adversely to the claims of Caroline Leonard, the widow, and hence she appealed.</p>

Spratley, the appellees, were plaintiffs, and William H. Proctor, the appellant, was defendant. Stith Spratley exhibited to Proctor samples of hi's peanuts, and offered to sell them, but said the bulk did not equal the samples.

Appeal of the Shenandoah Valley Railroad Company from decree of circuit court of Clarke county, entered July 17th, 1882, dissolving an injunction which had been awarded it restraining the board of supervisors of said county from enforcing the collection of certain taxes or assessments on its property for county, purposes; and also restraining A. Moore, treasurer of said county, from selling certain property levied on for said taxes.

Phillips, whereon Joyce was found guilty of murder in the second decree and sentenced to confinement in the penitentiary for the term of sixteen years.

Henry Bell, &c., the other under style of B. Whiteley, Trustee v. Henry Bell, &c., by which decree the bill of the plaintiffs was dismissed as to Charles Brown, one of the defendants. The effect of this dismission was to exonerate a moiety of certain real estate held by said Brown from the lien of certain judgments against the defendant, Henry Bell, which judgments the plaintiffs claimed were liens on said moiety.

Appeal of Thomas Tabb, administrator of George W. Elliott, deceased, from decree of circuit court of Elizabeth City county, pronounced in April, 1879, in chancery suit of M. B. Howell and als. against appellant and als. Intestate, as guardian of the children of his deceased brother, Bailey T. Elliott, received $750 belonging to his wards and invested the money in a house and lot in the town of Hampton as a home for the children and their mother.

<p>1. Trusts-Defined-General-Application of purchase money.&emdash;The rule is that whenever the trust is of a defined and limited nature, the purchaser must himself see that the purchase money is applied to the proper discharge of the trust-; but, whenever the trust is general and of an uncertain nature, he need not see to it. Pattie v. Gardner, 12 Wheaton, 498.</p> <p>2. Idem-Idem-Discretion.-Even when the object of the trust is defined, but the purchase money is to be reinvested upon trusts requiring time and discretion, purchaser is not bound to see to the application thereof. If any shall suffer by trustee’s misconduct, it should be those who clothed him with the discretion.</p> <p>3. Idem-Sale and reinvestment.-then sale is made under power to sell and reinvest upon same trusts, it has been held that the purchaser is not bound to see to application of purchase money. And it is unreasonable that he should be so bound, if the form of the bequest implies confidence reposed in trustee as to applying the purchase money.</p> <p>4. Idem-Infant, or unborn c. q ts.&emdash;When the time has arrived for sale of real estate and the persons entitled to the money are infants, or unborn, the purchaser is not bound to see to the application of the purchase money. But otherwise, if the money is payable to an infant at his majority. In the latter case the person and the time are designated, and the trust is defined and limited.</p> <p>5.. Idem-Payments from year to year.&emdash;Where money is payable to persons yet unborn, and from year to year, to require purchaser to see, at his peril, that it is paid to the proper persons in esse, or to be born, and entitled during each one’s lifetime, and to continue such supervision until all are dead who are so entitled, would be to defeat the sale and the purposes of the will. Such obligations would practically convert a purchaser into a trustee, and that, too, without compensation-</p> <p>6. Trusts—Power of sale free of encumbrance—Case at bar.—Testator charged estate bequeathed to his son J with payment of annuity of $3,000 out of the annual profits thereof to his son P, during his life, and at his death to P’s child, or children, during their lives, or the life of the survivor. Testator also empowered J to sell and convey any of his real estate. P had only one child, E. J paid the annuity up to January ist, 1871. But the slave and much of the other personalty was lost by the war, and the'realty became less remunerative ; and in order to enable him to continue paying the annuity, it became necessary for him , to sell “White Marsh,” part of the real estale. SoJ sold it to H for $60,000. In a suit to which P and his child (E) were parties, the court sanctioned the sale, allowed J to collect the cash payment of $20,000 for his own uses ; required H to execute his bonds for the balance ($40,000), which bore interest at 7yz per cent, per annum' and was payable at three years, to a commissioner, and to execute a trust deed on “White Marsh ” to secure payment of said bond ; and directed H to pay the interest annually to P in satisfaction of the annuity, until the maturity of the bond, and then to pay the $40,000 into bank subject to the order of the court. For several years H regularly paid the annuity to P, and the arrangements seemed complete, and J so considering them, sold and conveyed the residue of the real estate to H. In 1873 H -became insolvent. In 1875 H conveyed his equity redemption in “White Marsh” and the residue of the real estate, except the courthouse property, to trustees for the benefit of his wife (Mrs. H), and executed on the courthouse property, a mortgage to secure £20,000 to B. The mortgage was foreclosed and Mrs. H purchased the property. H failing to pay the $40,000 into bank, “White Marsh ” was sold under decree of the court for $34,151 net, to Mrs P, a sum insufficient to raise at 6 per cent, per annum the annuity of $3,000. Then P and his child (E) filed their bill to subject the rest of the testator’s real estate to payment of the deficiency of the annuity.</p> <p>Held :</p> <p>x. The sale of White Marsh to H was duly authorized and is valid.</p> <p>2. The responsibility of H ceased upon a compliance with his contract ; yet never having paid the whole of the purchase money of White Marsh, he is liable for the balance, and the decree against him therefor is proper.</p> <p>3. But the arrangements made by the court to secure the payment of the annuity to P and his child after his death, exonerated the residue of the testator’s real estate from the charge therefor, and that residue is not liable for the deficiency of the annuity, which the net proceeds of the sale of White Marsh under the deed of trust taken by the court and enforced by its decree are insufficient to pay. Downman v. Rust, 6 Ran. 587, reviewed and distinguished from the case at bar.</p>

Appeal of John T. Crow, sheriff of Clarke county, and as suck administrator of Alfred Castleman, deceased, Champ Shepherd, executor of Joseph Shepherd, deceased, R. R. Smith and Charles H. Smith, executors of Treadwell Smith, deceased, and Marshall McCormick, administrator c. t. a. of William D. McGuire, deceased, from decree of circuit court of said county, rendered 3d June, 1882, in the cause of Amanda Dorsey and others, distributees of William Castleman, deceased, against…

<p>Error to judgment of corporation court of the city of Norfolk, rendered 12th January, 1883, in a proceeding in the nature of a writ of quo warranto, filed in the name of the Commonwealth of Virginia, at the relation of James W. Long, against John B. Branham, whereby said Branham, who was, by verdict of the jury, found guilty of exercising the duties of the office of commissioner of the revenue for the city of Norfolk, without legal authority, as charged in the information, was adjudged to be forthwith ousted from the said office, and to pay the costs' of the prosecution. From this judgment said Branham obtained from one of the judges of this court a writ of error and supersedeas.</p>

■ Appeal of John L. Schoolfield, executor of Henry D. Schoolfield, deceased, from decree of circuit court of Lynchburg, rendered 21st November, 1882, in suit of appellant in his own right and as such executor, and Henry O., James M, John T., Walter S., Mildred. M. and Ormond M. Humphreys, infant children of John T. Humphreys, deceased, by Eo. I. Davis, their next friend, against the city of Lynchburg.

L. Cherry, under Acts 1874-5, chapter 206, section 106, page 244, on a rule issued on the motion of the attorney for the Commonwealth against him to show cause why his license to sell liquor should not be revoked for charges therein contained.

Appeal of Peter W. Watkins, administrator of George Pannill, deceased, and others, from decrees of chancery court of Richmond city, rendered 14th June, 1879, and 23d October, 1879, and on 3d February, 1881, respectively, in suit of George Calloway’s committee against Peter W. Watkins, as administrator of George Pannill, deceased (who had in his lifetime been committee of said George Calloway), and his sureties.

On tbe night of tbe 19th July, 1882, Ira Thompson, alias Ira Dean, was murdered while asleep in bed. At the same time, in an adjoining room of the same house, his son, Floyd Dean, was severely wounded while in bed. Russell was son-in-law of the murdered man. The evidence was wholly circumstantial. To this judgment Russell obtained from one of the judges of this court a writ of error and .supersedeas.

Appeal of W. D. Brengle, Henry B. Burnett, J. P. Price, and George K. Jones to the decree of circuit court of Henry county, rendered 26th October, 1876, in suit wherein George W. Richardson’s administrator and others were plaintiffs and appellants, and others were defendants.

This is an appeal from certain decrees rendered by the circuit court of Mathews county, in the consolidated causes-of Hicks v. Shultice and Foster v. Seawell and others. The-bill was filed in the first named case to subject certain real estate of the defendant to the satisfaction of a judgment-against him in favor of the plaintiff.

Williams a peremptory mandamus against James M. Taylor, acting treasurer of this Commonwealth, to compel him to receive certain coupons, amounting to $249, or $246, tendered by Williams for his taxes due to the Commonwealth, and to refund to him the money paid by him 'for said taxes. To this judgment the acting treasurer obtained from one of the judges of this court a writ of error and supersedeas. Opinion states the case.

The question was, whether the real estate of the association is subject to taxation. No tax on its property is assessed by tbe State, but in 1880 it was assessed for taxation by tbe city of Petersburg, and tbe collection of tbe tax was enjoined by the corporation court of that city.

<p>1. Executors and Administrators-Title to assets.-Legal title to testator’s assets in executor’s hands for administration, whencesoever arisen, is in executor.</p> <p>2. Idem-Purchasers.-Bona fide purchaser for value of assets acquires good title thereto, though executor commit devastavit by the sale and. conversion to his own use.</p> <p>3. Idem-Idem-Enquiry-Fraud.-Such purchaser has no adequate means of enquiry, and need not enquire whether the estate needs the sale, and is not bound to see to the application of the purchase money; he may presume the sale rightly made, and the price properly applied, and he is only bound if he fraudulently collude in the devastavit.</p> <p>4. Idem-Idenp-Onus probandi.&emdash;Where executor sells bonds at heavy discount, or with them pays his own debts, the burden rests on purchaser to show either that the estate needed the sale or that the bonds had become executor’s individual property by reason of his advances to the estate or legatees, or had accounted for them.</p> <p>5. Idem-Idem-Rule.-The rule is that if executor sells the assets at such gross undervalue as makes it apparent he intends a devastavit, the purchaser buys at his peril, and should make the necessary enquiries.</p> <p>6. Case at Bar.-Here B for full value buys bona fide certain bonds of solvent executor, who had become owner of three-fifths of the estate. Here, also, H, under samé circumstances, bought for full value other bonds of executor, but took said bonds to pay debt due himself from the executor individually, the aggregate of the bonds being less than executor’s share of the estate.</p> <p>Held ;</p> <p>Under the circumstances of this case neither B nor H colluded in the devastavit, and is liable therefor.</p>

J. Crews, surviving partner of himself and others, was plaintiff, and E. M. Hatcher and C. J. Hatcher, his wife, and her trustees and others were defendants. Its object was to set aside as fraudulent certain conveyances, under which the trustees held certain real estate, and subject it to pay the debts of the husband.

Mill, suing for herself and other lien creditors of James I. Littlepage, against Robert H. Burton, James J. Littlepage, Edmund Littlepage, infant, Mrs. Mary J. Little-page, S. G. Littlepage, trustee, B. A. Littlepage, trustee, and als., defendants.

White, for a misdemeanor. The indictment charged that defendant “ did sell and offer to sell goods, wares, and merchandise, by sample, card, description and other representation, without first having obtained a license to do so according to law.” By a jury he was found guilty, and the judgment was entered on the verdict, imposing on him a fine of $300 and the cost of the prosecution, and directing him to be confined in jail until the fine and costs were paid, the confinement…

<p>Error to judgment of hustings court of Richmond city on an indictment against John T. Henderson for doing business as a commercial broker in the city of Richmond without having first obtained license so to do according to law. He held a sample merchant’s license, and was engaged in selling on commission by sample goods without having same in his possession or control as commission merchants have. He was found guilty of the charge and sentenced to pay a fine and the costs of the prosecution, and from the judgment he obtained a writ of error and supersedeas.</p>

<p>Criminal Proceedings-Unlawful gaming-Self crimination-Personal disgrace.&emdash;K was sworn and sent to the grand jury to testify as to charge against L of unlawful gaming, and refused to answer questions pro" pounded by grand jury, because the answer would tend to criminate and disgrace himself.</p> <p>Held (by a majority of the court):</p> <p>Acts 1877-78, ch. 10, sections 20 and 22, page 51, New Criminal Procedure, secures full protection to witnesses testifying in prosecutions for unlawful gaming, and K is not justified in refusing to■ testify on the ground that his answer will tend to criminate and. disgrace him.</p> <p>Held (by Lacy, f, and Richardson, f.) :</p> <p>By Virginia constitution, article I, section I, and by amendment V, to U. S. constitution, no man is compellable to give evidence against himself in any criminal case. ;The legislature cannot compel a person to give evidence against himself by providing immunity for the witness.</p>

<p>Appeal from decree of circuit court of city of Richmond, rendered 7th July, 1883, in two causes in chancery,, consolidated and heard together. The complainants in the one were Douglas H. Gordon’s executors and others,, suing for themselves and other holders of the guaranteed stock of the Richmond, Fredericksburg and Potomac Railroad Company, and in the other were the City Fire Insurance Company of Richmond and others suing similarly. And the defendants in both were the Richmond, Fredericksburg and Potomac Railroad Company, and the Board of Public Works of Virginia, Ann W. Anderson, A. Sidney Biddle and others, the holders of the common stock of the said company. The object of these suits was to enforce the contracts between the holders of the said guaranteed stock and the said company, as expressed on the face of the said stock, and to have the rights of said holders passed on and enforced in respect to a participation in the dividends of said company, and especially under the resolution of its stockholders in general meeting in December, 1881, and the consequent action of its board of directors in issuing certificates known as “dividend obligations” to the holders of the common stock. Demurrers and answers were filed, and by its said decree the said circuit court dismissed the bills of the complainants with costs to the defendants; and the complainants obtained from one of the judges of this court an appeal and swpersedeas.</p>

<p>Marriage-Colored persons-Cohabitations-Legitimacy-Case at bar.&emdash;L. and S, colored persons, were never married, but cohabited together as man and wife previous to November, 1863, when S enlisted in the U. S. army. The result of the cohabitation was a child-I. S died in 1865, but before his death recognized the child en ventre sa mere, as, his, and declared his intention to marry L, who died a few years after the birth of the child, the latter subsequently dying unmarried and childless. To this child, before its death, the U. S. government paid $1,200 for her father’s services. After her death I’s maternal next of kin claimed that she was illegitimate and that they were entitled to her whole estate, which claim was contested by her paternal next of kin, who insisted on the division of the estate into moieties, one of which should be distributed among them.</p> <p>Held :</p> <p>The act of 27th February, 1866 (Code 1873, chapter 104, section 13J, being retrospective, legitimated the child I, though her parents had ceased to cohabit as man and wife before its passage, and I’s estate must be divided into two moieties-one for the maternal, the other for the paternal next of kin.</p>

Appeal of J. W. Ellis, sheriff of Lunenburg county, and as such administrator de bonis non with the will annexed of E. Blackwell, deceased, from decree of circuit court of said county, rendered 6th October, 1881, in the chancery cause styled Bragg, Trustee, and others v. Blackwell’s Adm’r and others. In 1839, E. Blackwell qualified as guardian of Upton E. Hardy.

Washington Qity, Virginia Midland and Great Southern Railroad and others, wherein said railroad had been placed under the management of John S. Barbour as receiver. The petition was filed by A. B. Melendy and T. J. Bussell. Its object was to recover damages-for the killing of their race horse, “ Bristow,” which they valued at $50,000, by the negligence of the receiver’s agents- and employees.

<p>1. Partners—Liability inter sese.—Where one partner receives partnership property for sale and sells same, and fails through no negligence or fraud on his part to collect the price thereof, he is not liable therefor to his co-partners.</p> <p>2. Idem—Liability of new partner for debts of old firm—Onus probandi. Person admitted into a firm does not ipso facto become liable for the firm’s debts. Such liability can be created only by special contract— the burden of proving which rests on the alleger thereof.</p> <p>3. Idem—Dissolution.—Admission of new partner, ipso facto, dissolves old firm.</p> <p>4. Appellate Court—furisdiction.—Where the amount in controversy exceeds the minimum jurisdictional sum, this court hath jurisdiction, though the judgment complained of be not in form, in solido, for that amount, but be divided into lesser sums payable to the persons respectively entitled thereto. In form, the judgment is several. In substance, it is in solido.</p>

<p>1. Guardians—Conversion of assets—Reacquisition.—Where guardian. appropriates his ward’s assets to his own private purposes, it is a breach of trust for which he is liable; which liability is'not removed by his • subsequent reacquisition of those assets.</p> <p>2. Non-Residents—Publication—Appearance—Notice.—Under Code 1873, chapter 166, section 15, where order of publication has been duly executed against non-resident, or unknown defendants, no other notice is required to be given them in any proceeding in court, or before a commissioner, or for the purpose of taking depositions, unless specially ordered by the court, if those defendants shall not appear within one month after completion of the publication. But if they so appear, then they ar,e entitled to notice in all the subsequent proceedings in the suit.</p> <p>3. Idem—Idem—Case at bar.—In 1873, G qualified as guardian of T and four other infants. In September, 1875, G filed his bill for a settlement of his accounts against his wards, all of whom were non-residents, and an order of publication was duly executed, and they duly appeared by guardian ad litem. Account showed in guardian’s hands, in money, $8,261.16, received February 1, 1874, and also one bond for $1,000 G loaned J, February 4, 1874, on trust deed. In May, 1876, court confirmed report, and ordered G to pay T, who had obtained his majority, one-fifth of the money—i. e., $1,632.23—and to collect the bond. Four days after decree, G assigned this bond to T, in part settlement and exchange for the $1,632.23 he had been ordered to pay T. The bond was worthless, the security being worthless when G loaned J the money. In September, 1877, G took back the bond from T and claimed it to be part of his ward’s assets. Before lending the $1,000, G employed attorneys of good standing to investigate the security, and they reported it good and free from encumbrances; for which service they were paid $100, deducted from the $8,261.16. But encumbrances existed and exhausted the security, and G, who'was also an attorney, had been so connected with their creation as to give him notice thereof. In July, 1878, a decree was entered holding G harmless for the loss of the $7,000. In April, 1880,. the wards filed a bill to set aside that decree because it was based on a report founded on depositions taken when they were unnotified and unrepresented. G answered. Depositions were taken proving the bill. On hearing the consolidated cases, the court decreed that no cause had been shown for reopening the decree complained of, and dismissed the bill with costs. On appeal—</p> <p>Held :</p> <p>1. The plaintiffs were entitled to notice, after their appearance in the suit, of all the subseqent proceedings, and the decree founded on the depositions taken without notice to them, and when they were unrepresented, should have been reopened.</p> <p>2. Under the circumstances, G did not act in loaning the $1,000 to J with the discretion and judgment which his duty required.</p> <p>3. The assignment of the bond to T was an appropriation of his ward’s assets to G’s own purposes, and such a conversion thereof as made G at once liable.</p> <p>4. Such liability was not affected by the subsequent reacquisition of the bond.</p>

Linton and his wife, Martha A. (formerly Birch), were plaintiffs, and John T. Birch was defendant. The object of the action was to recover sixteen acres of land and the uiesne profits for five years next before action. Martha owned this land, and whilst an infant, the day before her marriage, by deed of September 8th, 1858, conveyed it to Jane T. Birch, who conveyed it to defendant. After marrying Philip they went to Maryland, where they still reside.

Appeal of D. P. Montague and Genevieve, Ms wife, formerly Genevieve Allan, from decree of chancery court of city of Richmond, pronounced February 24th, 1883, in suit wherein appellants were plaintiffs, and George W. Mayo, executor of Louisa G. Allan, deceased, and others, were defendants.

<p>Error to judgment of circuit court of Augusta county, rendered 9th April, 1883, in action of ejectment removed thither from Alleghany county, and wherein Harrison Robertson was plaintiff and John H. Wilcher, Alexander Wilcher, George T. Wickes and Daniel B. Leighton were defendants.</p> <p>The land actually in controversy was about 150 acres, being a portion of a tract granted by the Commonwealth to Richard Wilcher by patent, dated June 1st, 1852. About 150 acres of said tract is covered by an older patent from the Commonwealth, issued December 4th, 1795, for 14,000 acres, to Benjamin Martin. The defendants claimed title under Richard Wilcher. The plaintiff claimed 9,000 acres, part of the 14,000 acres granted to Benjamin Martin under deed of 24th July, 1872, from David I. Wilson, who claimed under deed from Thomas J. Stewart, special commissioner of the circuit court of Augusta county, in the chancery causes of Hudson and Wilson’s administrator v. Benjamin Martin, the patentee, and Hudson v. the same. At the trial of the said action of ejectment, in order to show that Commissioner Stuart was authorized to execute his deed the plaintiff introduced copies of the records in the two said chancery causes. Benjamin Martin was never a citizen of Virginia, but was proceeded against in said chancery causes as a non-resident by publication. Said causes were instituted in 1829. The defendants then offered to prove by parol evidence that said Benjamin Martin, the patentee and defendant, died in 1825, of course before the pronouncement of the decree authorizing6the special commissioner to execute his deed of conveyance to said David I. Wilson, from whom the plaintiff claimed title. But the court refused to admit the evidence, and the defendants excepted—said David I. Wilson having in the circuit court of Alleghany county filed a caveat against the issue of the patent to said Richard Wilcher, under whom the defendants claimed, and there having been entered in the said court the following order—to wit :</p> <p>“At a circuit court continued and held for the county of Alleghany, at the courthouse thereof, on the 17th day of April, 1852, David I. Wilson, plaintiff v. Eichard Wilcher, defendant. Caveat. Cause dismissed. By consent of the parties and for reasons appearing to the court, ordered that this cause be dismissed.”</p> <p>The defendants introduced the record of said caveat proceedings, including the said order, and moved the court to give an instruction in the words and figures following, to-wit:</p> <p>“ The jury are instructed that the record and proceedings of the circuit court of Alleghany county in the caveat suit of David I. Wilson against Eichard Wilcher is evidence of a disclaimer by the said Wilson of tenancy to him by said Wilcher, and the judgment therein entered operates as a bar against the claims of .said Wilson and those claiming-under him to the land in controversy, if the jury shall find that the land described in said record and proceedings embraced the land in controversy in this suit.”</p> <p>But the court refused to give said instruction as presented, and in lieu thereof gave a portion of the same, in the words and figures following, to wit:</p> <p>“ The. jury are further instructed that the record and proceedings of the circuit court of Alleghany county, in the caveat suit of David I. Wilson against Eichard Wilcher, is evidence of a disclaimer by the said Wilson of tenancy to him by said Wilcher.”</p> <p>And the defendants thereupon excepted.</p> <p>The verdict and judgment being for the plaintiff, the defendants obtained a writ of error and supersedeas. The opinion of the court' states the other facts and proceedings.</p> <p>This case was argued at Staunton and decided at Eichmond.</p>

<p>x. Bankruptcy—Provable debts.—Under ji 5106, U. S. R. Statutes, no suit on provable debt can be prosecuted to judgment against bankrupt until question of his discharge is determined. By leave of bankrupt court, suit may proceed to ascertain amount which ought to be proved therein.</p> <p>2. Idem—Idem—Judgments—Discharge.—By maturing pre-existing provable debt of bankrupt into judgment, the form and remedy are changed. The debt remains the same and provable in bankruptcy. Hence, under \ 5119, U. S. R. Statutes, the bankrupt is released from such judgment by his discharge.</p> <p>.3. Idem—Merger.—Under the bankrupt act, the theory that the debt is merged in the judgment, has no applicability.</p> <p>4. Idem—After-acquired lands.—-Judgments matured against bankrupt after his adjudication on pre-existing provable debts, are not liens on his after-acquired lands; but bankrupt is released by his discharge from them, as well as from the debts whereon they are founded.</p> <p>5. Idem—Sales free of lien.—Bankrupt court controls property of bankrupt ; though encumbered by liens, may bring the lien-holders into court; sell the property free of liens, and distribute the proceeds according to priorities.</p> <p>■6. Idem—Case at bar.—In 1868, H L M was'adjudicated a bankrupt. His land was sold by decree of bankrupt court, free of liens, and purchased by himself, and conveyed to him by his assignees. Later, he sold it to J H M, who conveyed it in trust to secure debt to B. Under this trust, it was sold and purchased by B. In 1879, C brought creditor’s bill to subject the land in B’s hands to liens of judgments recovered against H L M, after his adjudication as bankrupt on pre-existing provable debts.</p> <p>Held :</p> <p>1. The judgments were released by H L M’s discharge, and are not liens on the land in B’s hands.</p> <p>2. B is entitled to defend his own title by defending that of his vendor, which can be done only by setting up his discharge in bankruptcy and his release from the debts evidenced by the judgments.</p>

Appeal of Allan A. McCullough from decree of corporation court of Norfolk city, rendered 14th March, 1881, in suit wherein Charles Dashiell and Mary E. O. Dashiell, his wife, were plaintiffs, and said McCullough and William Lamb, trustee, were defendants.

<p>Error to judgment of hustings court of Portsmouth city, rendered 25th October, 1881, in action of trespass on the case wherein John P. Dun was plaintiff and the Seaboard and Roanoke Railroad Company defendant.</p> <p>The object of the action was to recover damages for injury inflicted on the plaintiff through the alleged negligence of the defendant. The plaintiff was a passenger on the defendant’s railroad; was sitting in a swiftly moving car with his arm protruding a short distance, to-wit: two inches outside of the open car window, when he was struck on the elbow outside the car by some cord-wood which was ranked near enough to the track to come in contact with the arm so protruding. The declaration alleged these facts, but did not charge that the defendant, after seeing plaintiff’s position and danger, omitted to warn him thereof. Defendant demurred, and the hustings court sustained the demurrer—and the plaintiff obtained a writ of error from one of the judges of this court.</p>

Appeal of Edward Droomgoole from decree of circuit court of Brunswick comity, pronounced January 2d, 1880, in suit of Louisa E. Smith and others v. Edward Dromgoole, administrator of Elizabeth House, deceased, and als.

F. Cromwell was plaintiff and N. A. Moses was defendant. ' The object of the action was to recover damages for malpractice as a surgeon or physician by the -defendant on the plaintiff. The jury found for the plaintiff and assesséd his damages at $6,714.16. Whereupon the defendant moved the court to set aside the verdict and .grant him a new trial on the following grounds-wit: 1. That the verdict was contrary to the law and evidence. 2. That the damages were excessive. 3.

<p>Error to judgment of corporation court of Danville, rendered October 13th, 1883, on an indictment against Robert Hall, for the larceny of a horse, and sentencing him to three years’ imprisonment in the penitentiary. To this. judgment Hall obtained a writ of error and supersedeas.</p>

, 1881, upon error to judgment of county court of said county, refusing to renew, by scire facias, a judgment for $1,172.45, with interest and costs, in favor of appellant, Thomas A. Smith, against R. P. Hutchinson, Thomas K. Davis, and S. P. Rayly. The writ was duly served and docketed at term to which returnable, and continued to next term; but defendants appeared not.

<p>x. Criminal Proceedings-Indictment-Time laid-Perjury.-As a general rule, time of commission of offence, as laid in indictment, is not material, and confines not proof to time laid; but where time laid is provable by record, and in indictment for perjury, time must be truly and precisely laid, and failure so to state it renders indictment demurrable. Code 1873, ch. 201, | 5.</p> <p>2. Idem-Indictment for perjury.-Where one is indicted for swearing contradictorily on two occasions, prosecutor must elect which oath he holds to be perjured, and that oath he must affirmatively prove to be false. If defendant is shown to have sworn contradictory oaths without mqrrd; non constat which is false.</p> <p>3. Idem-Idem-Materiality.-The matter of the false oath must be material. If it be not material, the fact that it is false will not sustain the conviction.</p> <p>4. Idem-Idem-Idem-Case at bar.-R swore that M had stolen bacon and offered to sell it to him November 15th, 1875. Later, R swore that M had stolen bacon and offered to sell it to him just before Christmas, December, 1875. Qn indictment against R for perjury, it was not proved that M did not steal bacon ; but it was proved that R made contradictory statements as to the date. R was convicted. On error-</p> <p>Held :</p> <p>1. The'stealing of the bacon was the material matter of the charge.</p> <p>2. The date of the offer to sell was not material to the offence.</p> <p>3. The oath as to the date was not material to the issue, and was not likely to induce the jury to give the readier credit to the substantial part of the evidence.</p> <p>4. R was not guilty of perjury.</p>

N. Has-kin was complainant, and the Agricultural Fire Insurance Company of Watertown, New York, was defendant, for the specific performance of an alleged contract for the insuranee of a barn and peanuts. The cause was heard on bill, answer and depositions and dismissed, with costs to the defendant. From the decree said Haskin obtained an appeal to this court.

<p>Error to judgment of circuit court of Danville, rendered June 14th, 1880, in action of trespass on the case wherein Hatcher E. Clark, administrator of James H. Clark, deceased, was plaintiff, and the Richmond and Danville Railroad Company was defendant. Object of action was compensation for defendant’s negligent killing of intestate, an employee on said road. Defendant demurred to evidence. Verdict for $7,500, subject to judgment on the demurrer, which was sustained. To this judgment plaintiff obtained a writ of error.</p>

Two appeals heard and submitted together; first, from decree of circuit court of Charlotte county rendered March 30th, 1881, in the chancery causes of Scott and als. v. Watkins and als., and of Elcan’s Adm’r, &c. v. Watkins and als., which were consolidated; arid second, from decree of said circuit court rendered September 22d, 1881, in said causes.

<p>1. Criminal Jurisdiction-Murder-Malice.-Malice is presumed from the fact of killing unaccompanied with circumstances of extenuation ; and the burden of disproving malice is upon the accused.</p> <p>2. Idem-Idem-Intent.-Every man is presumed to intend the natural and probable consequences of his own acts.</p> <p>3. Idem-Idem-Justification.-The necessity relied on to justify the killing must not arise out of the prisoner’s own misconduct.</p> <p>4. Idem-Idem-Evidence of threats.-Threats by deceased to prisoner, directly or through others, are admissible to determine whether the accused had at the time of the killing reasonable ground to apprehend serious bodily harm.</p> <p>5. Idem-Instructions.-Case at bar affords instance of instructions to jury after retirement to consider verdict.</p>

Appeal of Planters Bank of Farmville from decree of circuit court of Prince Edward county, rendered 5tlL September, 1882, in a chancery suit therein pending under style of “ Whittle for, &c. v. The Farmville Insurance and Banking Company The material facts are briefly these: Some time in the year 1875 the Planters Bank of Farmville discounted for the Farmville Insurance and Banking Company a negotiable note drawn by the latter for $10,000.

\ , Error to judgment of circuit court of city of Richmond, rendered 21st December, 1881, in action of trespass on the case wherein E. B. Spencer, administrator of George Moon, deceased, is plaintiff, and the Richmond and Alleghany Railroad Company, defendant.

Fitzgibbon, &c. v. Charles W. Wills, &c., and W. H. Burroughs, trustee, &c. v. Thomas M. Wills, &c, and Mary M. Barry, by her next friend, &c. v. Maurice Fitzgibbon, &c. That decree adjudged that the decree pronounced May 21st, 1872, in the first of the above-named causes, substituting W. H. Burroughs as trustee in the deed of C. W. Wills, dated September 26th, 1867, in the place of Maurice Fitzgibbon, and all other proceedings had therein, were and are null and void as to…

Woodward, administrator of Eliza Meredith, deceased, and others, creditors of Wm. Hill, deceased, against Walker Hill, administrator, Catherine B. Hill, widow, and Walker Hill, and six other children and heirs of said Wm. Hill, deceased. Object of suit was to subject decedent Wm. Hill’s estate to pay his debts. It was brought in circuit court of New Kent county, to October rules 1878. Widow’s name does not appear in process returned executed.