Volume 79 — Virginia Reports

Appeal of Harriet R. Cogbill, a married woman having a separate estate held in trust for her, from a decree entered 28th May, 1883, by the circuit court of Mecklenburg county, in the chancery cause then therein pending in the style of Cogbill v. Boyd, Trustee, & als. This is the sequel to Cogbill v. Boyd, Trustee, & als., 77 Va. 450.

Mister v. The Commonwealth of Virginia, Thomas Johnson v. The Same, Thomas R. Chandler v. The Same, John P. L. & W. H. A. Hopkins v. The Same, and George W. & Henry F. Powell v. The Same, heard together, the facts and rulings being the same in all the cases, which are sequels to Boggs & als. v. The Commonwealth, 76 Va. R. 989.

The run separates said counties. The swamp lies adjacent to the run, but wholly within Middlesex. Opinion states the case.

<p>x. Fraudulent Conveyances—Inconsistent Reservations.—It is well settled that conveyances, professedly to indemnify creditors, but expressly or impliedly reserving to grantors powers inconsistent and adequate to defeat such purpose, is void as to creditors and purchasers. McCormick, trustee, v. Atkinson, trustee, & als. 78 Va. 8.</p> <p>2. Homestead—Mode of Claiming.—Constitution, Article XI, secures homestead, yet legislature may prescribe mode of setting it apart, only it cannot defeat or impair the benefit thereof. Chapter 183, Code 1873, is within legislative authority, and to avail himself thereof householder must actually claim the exemption and set it apart as prescribed.</p> <p>3. Appellate Court—Injunction—Bond—Estopp.el.—One is estopped to deny in appellate court that an injunction was providently awarded, or that the bond was proper in form and substance where he has sued out and maintained the injunction for a long time, given the bond, and kept and used the property.</p> <p>4. IjssMr—Idem—Res judicata.—It is too late for a grantor in a fraudulent deed to urge in appellate court that a judgment is excessive in suit to annul that deed and subject the property to that judgment.</p>

Cox, complainant, v. David Carr, Joel L. Nixon, trustee, Thomas W. Edwards, Godfrey Shelburne, and Albert Shiner, defendants. The first decree dismissed the bill as to defendants, Shelburne and Shiner. The second dismissed it as to all the defendants. From these decrees said Cox obtained an appeal to this court.

<p>Appeal from decree of circuit court of Gloucester county, entered 29th November, 1876, in the cause of Robert N., John W., Henry F., and Edward Sinclair, against John Sinclair, Jr., and others, his judgment creditors.</p> <p>The appellants filed their hill in the court below, alleging that a short while before the war, and during their infancy, their father, John Sinclair, Jr., purchased certain real estate in the county of Gloucester, and took the conveyance in his own name; that the whole or the greater part of the money paid for the land was theirs, and had been received by their father on account of their interest in the estate of their deceased grandfather. And they insisted that in a court of equity they were entitled to the land, or if not, then to a lien thereon, for what was due them by their father on account of-their money used in its purchase. It was further alleged that the said John Sinclair, Jr., was insolvent, and that after the purchase of the land various judgments had been recovered against him, which were claimed to be liens thereon. And the prayer of the hill was that the said John Sinclair, Jr., and his judgment creditors be made parties defendant, and required to answer the bill, and that the land be decreed to be conveyed to the plaintiffs, or that it be sold and their debt paid out of the proceeds. John Sinclair, Jr., answered the hill, and referred to his deposition in the cause as containing the facts connected with the transaction in question, so far as he was able to give them. Certain of the judgment creditors also answered. They neither admitted nor denied the truth of the allegations of the hill, but called for strict proof thereof. Two witnesses only were examined—A. S. Trivelian, the vendor of the land, and John Sinclair, Jl\ The former testified as to the sale and the payment on account thereofj but not as to the source from which the purchase money was derived, or to whom it belonged. The latter testified that in paying for the property, and afterwards improving it, he used in all about $1,800 of the plaintiffs’ money, which he had received for them from their grandfather’s estate, as alleged in the hill. The cause coming on to be heard, the circuit court decreed that the property was first liable to the satisfaction of the judgment liens, and from that decree the plaintiffs appealed.</p>

By deed dated June 4th, 1870, a house and lot in the said city was settled on Mrs. Eacho for her separate use free from all liabilities of her husband. Power was given her by the settlement to direct her trustee to sell or encumber it. But the direction was required to be by a writing executed by her under her hand and seal, and attested by two witnesses.

<p>1. Homestead Exemption.—Where there is a fraudulent conveyance of property, which is subsequently annulled at the suit of the creditor, the grantor is not estopped as against the creditor to assert his right of homestead in the premises.</p> <p>2. Approved.—Shipe, Cloud & Co. v. Repass and als., 28 Gratt. 716, and Boynton v. McNeals, 31 Gratt. 436, examined and approved.</p>

The last mentioned judgment dismissed with costs, the petition of William H. Farinholt, the appellee, for the privilege to erect a wharf at Bowen’s, in said county, on Rappahannock river.

<p>Appeal from decree of circuit court of Campbell county, entered 28th February, 1882, in the suit in chancery wherein Edwin S. Halsey was plaintiff and William E. Peters, in his own right and as executor of Don T. C. Peters, deceased, was' principal defendant.</p> <p>The object of this suit, instituted in 1880, was to compel specific performance of a parol gift of land and personalty by appellee’s testator in 1876, which was accompanied by delivery of possession, and followed by change of circumstances on part of donee, who gave up his business to accept the gift, and after-wards expended money in erecting permanent improvements on the land. According to the bill, plaintiff, in 1876, was living in, Lynchburg, and engaged in a tobacco business that was profitable, with flattering prospects. Testator was then living, was his uncle, in affluent circumstances and without wife or child. He had been relieved from insolvency and come into a large fortune by the will of a wealthy friend, Patrick Matthews. Testator manifested towards plaintiff affectionate feelings, and on many occasions declared his intention to provide for him liberally, and more than once said that of all his relations, he was the only one who had exhibited towards him the feelings of a relative and befriended him in time of need.</p> <p>Plaintiff’s means in recent years were not ample, but the contrary. He was in debt, his resources were limited, and he often contemplated various plans for bettering his condition. Finally he entered into business with his brother under substantial, pleasing and satisfactory inducements. From 1861'to 1874, plaintiff resided in the city of New York, and previously in Missouri, where he engaged in the tobacco business. He was then in easy circumstances, possessed considerable money, and had frequently rendered valuable services to his uncle, assisting him in business and allowing him the use of large amounts of money without interest; even supplying him from time to time funds to pay board bills and to meet pressing wants for personal support, which he then greatly needed. For five years these acts were continued, and as they were inspired by natural affection and personal good will, he kept no accurate account of them. These kindnesses were frequently recognized by the recipient with the warmest expressions of gratitude and regard. In 1864-5, his uncle went to Central America, plaintiff furnishing the means. While- there he became almost penniless, and plaintiff, apprised of his distress in a foreign country, sent him money to relieve his necessities and to return home. For these acts his uncle was fluent in expressing gratitude. From one time to another his uncle received of him seven or eight thousand dollars, none of which, except some fifty or sixty dollars, was ever repaid. Besides, plaintiff lent him $4,000, which he kept for years and returned without charge of interest. In 1865, testator returned to Virginia financially utterly prostrated. For several years he was supported by the liberality of his friend, Patrick Matthews, by whose advice he took the benefit of the bankrupt act and was discharged. When Patrick Matthews died, by his will he left testator a handsome fortune, which he received and enjoyed. A part of this legacy was a farm on Otter river, in Campbell county, containing about twenty-two hundred acres, possessing ordinary improvements, and fairly stocked with horses, cattle and farming implements. In ISW, his uncle invited plaintiff to accompany him on a visit to that farm, and he did so. Whilst there the former communicated to the latter his intention to give him that entire estate with the personalty on it, in consideration of past services and gratitude and affection. Plaintiff reminded his uncle that he was then in debt, and that if he gave him the estate his creditors would subject it, and moreover, that he had recently entered into business with his brother under flattering prospects, and would be unwilling to abandon it for any temporary occupation or advantage, and would not do so without substantial and permanent inducements. His uncle then said he would make better provision for him than that business promised, asked about the extent of his indebtedness, and said he would settle his debts, and afterwards advised him to take the benefit of the bankrupt act. His uncle then promised that if plaintiff would relieve himself of his debts by bankruptcy and give up his Lynchburg business, he would put him in possession of the Otter river estate with all the personalty on it, help him with his means to improve and cultivate it; that he should have it as his future home, and that when discharged of his debts by bankruptcy he would make him a good title to it absolutely. He then said: “ I went into bankruptcy upon Mr. Matthews advice. Whenever he told me to do anything I did it, and you know the result. How you follow my advice and go into bankruptcy, and you shall have the place and all the products to live upon; you can sell and use the proceeds of any of the stock, you don’t need to cultivate it, and you can keep it and hold it as your own, make it your home, and when discharged in bankruptcy you shall have the title.” He also said that the plaintiff had helped him in time of need; had shown him more consideration than any of his relatives, and that he intended to do still more for him. The plaintiff was loath to leave Lynchburg, where his mother and brother resided, and to give up his business there, but did so in consideration of these inducements and promises. The uncle proceeded to carry out his promises, employed a lawyer to institute proceedings and get the nephew relieved of his debts. Plaintiff, though much impeded by his creditors, did get this discharge in 1880. In 1876 he assumed possession and control of, added to the stock, built a great deal of fencing, hired an overseer, and paid him to assist in cultivating the land, sold such stock as he desired, spent his own money and that derived from the place to improve it and make it suitable as his home, moved upon the place, abandoned his business in Lychburg, all solely by reason of these inducements. Pending the bankrupt proceedings he signed his name as “ manager.” His uncle advised him to this course until he could get his discharge. His health becoming impaired in 1879, he came to0 his mother in Lynchburg, but continued to possess and manage the farm through his overseer, and to sell the produce as before, and his uncle never interfered. Before he received his discharge, his uncle died in June, 1880. His uncle had no intention to defraud him, and would have conveyed to him the estate had the discharge been obtained before his death, and would still do so if alive. In 1880 testator’s will was produced, dated 1870, but with a codicil dated 1877, only in reference to lands in other states, whereby the bulk of his estate was given to the appellee, who was named, and qualified as executor, giving bond in penalty of $129,000.</p> <p>The Otter river estate is not mentioned in the will. Testator’s health for the last years of his life was feeble, he being afflicted with a mortal disease, and at times unable to transact or to be annoyed with business, and he died without having executed any paper assuring to plaintiff the rights which had vested in him under his promises, or his performances toward their consummation. Since then the executor has declined to interview him as to his rights, but ignoring them, endeavored to take forcible possession of the property.</p> <p>The defendant answered, denying that plaintiff had acquired any property rights in the Otter river farm or the personalty thereon, alleging that the agreements between testator and him affected only the use of the same, and claiming under the will both realty and personalty.</p> <p>The depositions of many witnesses on both sides were taken. At the hearing the circuit court was of opinion that the intention of Don T. C. Peters was to give the said farm and the personalty on it to his nephew, Edwin S. Halsey, and that he did verbally give it to him; but that he died without having perfected the gift of the land by deed or writing so as to pass the title to him, and that there is not sufficient proof of the alleged agreement in relation to plaintiff’s abandoning his connections with his brother in the tobacco business, in consideration for the gift of the land, to authorize a court of equity to decree specific performance thereof. But as to the personalty on the land, the gift was consummated by the delivery thereof, with the absolute right to dispose of the same. And the circuit court perpetuated the injunction which had been awarded plaintiff to restrain the interference of the executor as to the personalty, but dissolved it as to the land, and ordered plaintiff to surrender the latter to the executor, subject to plaintiff’s right to remove the personalty, and decreed an account of rents since 1880. From this decree the said Edwin S. Halsey appealed to this court.</p>

H. Boisseau against Wm. E. Boisseau, guardian of four infant' children of G. W. Davis, deceased. The object of the suit was to enforce-the vendor’s lien for $750, with interest from June 1st, 1877, till paid, at the rate of eight per centum per annum, being the unpaid balance of the purchase money for a house and lot in Danville that was sold and conveyed by plaintiff to said guardian, who had paid cash thereon $750 of the wards’ funds.

Feckheimer is plaintiff and the National Exchange Bank of the city of Norfolk is defendant. On 8th May, 1866, the firm of Lublin & Steiner, doing business in Norfolk and elsewhere, failing, conveyed by deed all their property, real and personal, to said Feckheimer as trustee, to secure certain debts, and to do whatever was necessary to effect the objects of the trust. Lublin & Steiner owned twenty shares of the stock of said bank, worth $100 a share.

Orme and Nannie E., his wife, are plaintiffs, and the city of Richmond is defendant. The object of the action was to recover damages for an injury received by female plaintiff before her marriage, by reason of the alleged negligence of the city’s agents in lowering the grade of its streets. The defendant demurred to the declaration and the court below sustained the demurrer and gave judgment for the defendant. To which judgment the plaintiffs obtained a writ of error.

<p>1. Ante-nuptial Settlements—Fraud.—Whatever the design of the grantor, a settlement on a woman in contemplation and in consideration of marriage, is valid; unless her knowledge of his intended fraud is clearly and satisfactorily proved. Herring and als. v. Wickham and Wife and als., 29 Gratt. 628.</p> <p>2. Idem.—Idem—Notice—Proof.—Service by creditors of grantor, of written notice in accordance with Code 1873, ch. 163, $ 1, on the grantee before the marriage, of his fraudulent design in making the settlement, cannot affect her constructively with notice of such design ; but her actual knowledge of and participation in that fraudulent design must be clearly established by proof.</p>

William, S. Thurston’s Adm’r, &c., and Nuttall v. Kemp’s Adm’r, &c. The object of the first named suit was the settlement of the estate of William S. Thurston, deceased, and of that last named, to settle the estate of Wyndham Kemp, deceased, who had been the executor of William,S. Thurston, deceased.

<p>Error to judgment of circuit court of city of Richmond, rendered 19th December, 1874, in an action at law wherein the State Bank of Virginia was plaintiff, and the city of Richmond was defendant. Under an ordinance passed 8th April, 1872, a tax of $1.25 on the $100 value of personal property, moneys and credits, including capital stock, &c., within said city, a tax of $3,126.25 was assessed upon the capital stock of the said hank, consisting of $159,804 of paid up stock and $90,296 of demand notes given hy the stockholders to the hank and .held hy it, for unpaid up stock, and bearing interest. The capital stock thus assessed was owned by persons living in the city, out of the city but within the state, and beyond the state. The tax-bill showed that the assessment was on “ the money, bonds and personal property of the bank.” The tax not having been paid when due, the penalty, ten per centum, prescribed by the ordinance, was added, and the whole was finally paid under protest. The bank then sued for the recovery of the excess alleged to have been assessed, that is, the assessment on the demand notes and on the stock owned by persons living out of the city. The judgment was in favor of the city, and the bank obtained a writ of error to this court.</p>

<p>1. Personal Representatives—Payments in C S. currency—Compound interest—Case at bar.—Where in 1850 testator directed estate to be kept to support widow and children, each child’s part to be paid on coming of age, a son came of age in 1863, and settled with executor, and no undue influence or confidential relation existing, voluntarily received his part in Confederate currency, and died soon after intestate; and executor settled his accounts in 1866 and died in 1879; and in 1880, the son’s distributees filed bill to surcharge and falsify the accounts, scale the payments and charge executor with compound interest on certain bonds of the estate:</p> <p>Held :</p> <p>1. The payments were valid and not scalable.</p> <p>2. The executor not being entitled to collect, is not chargeable with compound interest on the bonds.</p> <p>2. Idem—Distributees—Equitable setoffs—Witness.—Where executor as surety for a distributee paid a judgment against the latter, the former is entitled to setoff in equity the amount so paid, against the distributive share of distributee, and the latter is not a competent witness to testify concerning the judgment, the executor being dead.</p>

<p>x. Constitutionality—Electoral Boards—Freehold qualification.—Act of February 14th, 1884 (Acts 1883-4, p. 150), prescribing that members of electoral boards shall be freeholders, contravenes Va. Constitution, Art. III, sec. 2, which declares that “ all persons entitled to vote shall be eligible to any office within the gift of the people,” and is void.</p> <p>2. Idem—Acts partly constitutional.—A statute may in some of its provisions be constitutional and in others not. If the unconstitutional be so connected with the constitutional that the one would not have been enacted without the other, the whole is void.</p> <p>3. Construction.—In said second section, the words' “ office within the gift of the people,” include all offices, as well those filled by the legislature as those filled by popular vote.</p>

<p>1. Railroad Companies—Passengers.—When' a railroad company has sold a passenger a ticket to a particular station it has no right to refuse to stop its train there, and is liable for such refusal. And a ticket from one designated station to another is good for any intermediate station at which, by the regulations of the company, the train regularly stops.</p> <p>2. Idem—Idem—Case at Bar.—Just before the arrival of a train A. buys a ticket to B. station, enters the train, and is told by the conductor that it did not stop at B.; A. asks to be put off at R., a station short of B., where the train had.to stop ; but the conductor tells him he could not travel on that train on that ticket; stops the train at C. bridge, which was short of R., and in a low marsh, and in the afternoon, in a drizzling rain and eastern storm, against A’s consent, puts off A., who was then sick, and had to walk three miles to his destination, in consequence of which exposure and fatigue A. became ill, was laid up two months, and lost his position, with his salary of $600 a year. At the trial of his action against the company for damages the jury allows him §500. The company moves to set aside the verdict, as contrary to the law and the evidence, excessive and punitive. The court below overrules the motion, and defendant excepts. On error</p> <p>Held :</p> <p>1. The verdict is sustained by the law and warranted by the evidence.</p> <p>2. Plaintiff was not only entitled under the circumstances to damages to the extent of the actual injury, but it was a proper case for exemplary damages.</p>

52, § 18, against Stephens, sheriff of said county, and McEalls and others, the sureties on his official bond, for $4,912.39, the balance remaining unpaid by him on account of the county levy for 1869. To this judgment the sheriff's sureties obtained from one of the judges of this court a writ of error and supersedeas. Opinion states the case.

Little’s administrator. At the October rules, 1881, a bill was filed in said circuit court by the widow and heirs of John Little, deceased, for settlement and distribution of his estate. The prayer was that the creditors be convened, their debts ascertained and paid, and the surplus distributed. On 3d December, 1881, the cause was referred to a master to settle the administrator’s accounts and ascertain the debts and their priorities. The account was taken and reported.

D. Lamar, executor and legatee of G. B. Lamar, deceased, complainant, against Fielden L. Hale, Norman Hale, Garland Hale, Samuel S. Clayton, James E. Clayton, James E. Tyson and others, defendants, instituted in 1877.

<p>x. Practice in Chancery—Issues—New Trial—Rule.—Where because of conflict of testimony an issue is directed, the solution whereof depends on credibility of witnesses, and the verdict is sanctioned by the trial court, the settled rule is, that the appellate court will consider not merely whether the evidence warrants the verdict, but also whether, upon the whole, further investigation is necessary to justice ; and though there may have been misdirection, or improper rejection of evidence, it will not grant a new trial, if on considering all the evidence, including that rejected, the verdict appears to be right.</p> <p>2. Idem—Idem—Evidence.—At trial of issue, whether vendee was induced to buy by vendor’s misrepresentations as to boundaries, evidence of the value of the land at time of sale and since, is admissible, as tending to disprove imposition.</p> <p>3. Idem—Idem—Instructions.—At such trial, though instructions that vendee must be held to have had notice from the written contract of sale and the title papers therein referred to, that the purchased tract included 135 acres of mountain land, might not have been directly relevant to the issue, the solution whereof depended .on the credit the jury attached to the witnesses, yet the instruction could not affect the verdict, and even if erroneous is no ground of reversal. Powell & Wife v. Manson, 22 Gratt. 192.</p> <p>4. Idem—Idem—Idem—Answers.—At such trial, instruction that jury shall weigh defendant’s answer instead of merely the parts responsive to the bill, though rather broad, is not error for which the verdict will be set aside. Danville Bank v. Waddill, 27 Gratt. 451.</p> <p>5. Idem—Idem—Instructions.—Where at such trial, impartially had, the verdict could not have been different, had a certain instruction been given, the refusal to give the instruction is not error, for which the verdiet will be set aside. And the rule is the same where the court gives, in lieu of instructions asked for by a party, others substantially embodying the same ideas.</p>

Cralle against Louisa W. Cralle, for a divorce a vinculo matrimonii, on account of her alleged wilful desertion of him for five years. She was a non-resident of this state when the suit was instituted in 1874, and the divorce was decreed. In 1876 she filed her petition, praying that the cause he reheard, and that alimony he decreed her.

<p>1. Public Privileges and Freedom of Speech.—-Constitution of Virginia, Art. I, sections 14 and 20, and Art. V, section 14, wherein it is said : “ Any citizen may speak, write and publish his sentiments on all subjects, being responsible for the abuse of that liberty,” and, “ All citizens of the state are hereby declared to possess equal civil and political rights and public privilegesand, “ The general assembly shall not pass any law abridging the freedom of speech or of the press applies to and protects the rights of all citizens of the commonwealth, whether occupying a private or an official station.</p> <p>2. Constitutional Law.—The act of the legislature approved 18th March, 1884 (Acts 1883-4, p. 698), entitled “ An act to prohibit the active participation in politics of certain officers of thesstate government,” is inconsistent with the constitution of Virginia, and is therefore null and void.</p> <p>3. Ex parte Curtis, 106 U. S. Reports, 371, reviewed.</p>

<p>Error to judgment of circuit court of Montgomery county, affirming on error a judgment-of the county court of said county, rendered 2d February, 1884, on an indictment for felony against Isaac Jones, whereby he was sentenced to imprisonment in the penitentiary for the term of two years.</p> <p>The indictment charged that Isaac Jones, a negro, did, in said county, on 1st day of February, 1888, feloniously intermarry with one Martha Auther alias Martha A. Gray, a white person. The indictment was under chapter 7, section 8, Acts 1877-8, which is as follows: “ Any white person who shall intermarry with a negro, or any negro who shall intermarry with a white person, shall he confined in the penitentiary not less than two nor more than five years.”</p> <p>To the judgment of the circuit court affirming the judgment of the county court, the prisoner obtained a writ of error and supersedeas. The opinion states the facts and the points raised.</p>

Appeal of J. E. Hoge and B. L. Hoge, infant heirs of James E. Hoge, deceased, by their mother and next friend, Eliza J. Hoge, from two decrees of circuit court of Montgomery county, entered May 15th, 1819, and May 18th, 1881, in two chancery causes consolidated and heard together. In the first Seddon & Bruce are complainants, and R. H. Hoge, the appellants and others are defendants. In the second the appellants are complainants, and Gr. Gr.

<p>Upon petition of J. L. M. Curry, W. H. Ruifner, H. H. Harris, R. M. Manly, L. R. Holland, John L. Buchanan, L. A. Miohie, F. N. Watkins, S. C. Armstrong, William B. Taliaferro, George O. Conrad, W. E. Gaines, W. W. Herbert, and R. R. Farr, superintendent of public instruction, constituting the hoard of trustees of the State Female Normal School at Farm-ville, representing that, by an act of the general assembly of Virginia, approved March 7th, 1884, a normal school was established for the education of white female teachers for public schools, and the petitioners were named as trustees therefor; that the town of Farmville having conveyed to the state the Farmville female college for the use of said school; and the said trustees organized as a hoard; that the hoard having applied to the auditors of the state for a warrant on the treasurer of the state for the sum of ten thousand dollars, appropriated by the seventh section of said act, to he paid annually out of the treasury for the purposes of said school, such application was refused by each of said auditors, and praying for a mandamus nisi against said auditors, or one of them, to compel the issuance of a proper warrant. The opinion states the other facts.</p>

<p>Error to judgment of circuit court of Washington county rendered 23d May, 1883 in an action of trespass on the case wherein George B. Ferguson was plaintiff and the Norfolk and Western railroad company was defendant. The object of the action was to recover compensation for an injury which, he alleged, had been received by him whilst a passenger on the company’s freight train from Bristol to Marion, in August, 1881, by reason of the negligence of the company’s agents in so running said train as to throw him out of the open side door of the caboose. The action was tried by a jury who rendered a verdict for the' plaintiff and assessed his damages at $5,250. The defendant moved for a new trial on the ground that the verdict was contrary to the law and the evidence, which motion was overruled; and judgment was entered accordingly, and the defendant obtained from one of the judges of this court a writ of error and supersedeas to the judgment. The opinion states the facts.</p>

Cole and others against Mrs. Martha A. E. Cole and others. In 1881 David J. Cole, late of said county, died testate, leaving a widow, Martha A. E. Cole, no children, and valuable real and personal estate.

<p>Appeal from decree of circuit court of Franklin county, pronounced in vacation on 20th October, 1883, in the chancery cause of John Prillaman against Cary Gray and als. The object of the suit was to subject a tract of four hundred acres of land, situate in said county on the head waters of Pigg river, whereof Ira M. Hurt died seized, to satisfy the alleged lien of a decree obtained by said Prillaman against said Oary Gray in April, 1867, in the circuit court of Floyd county, for the sum of f 1,-314.06, and duly docketed in the clerk’s office of Franklin county on 8th October, 1867. In 1859, at a sale made under a decree of the county court last named, said Oary Gray purchased said land, and William R. Gray was his surety. About four months after the docketing of said decree of Prillaman, the sale commissioner, by deed dated 29th February, 1868, and expressing on its face to be for $3,700, the payment whereof by said Cary Gray was thereby acknowledged, conveyed said land to said Cary Gray, who, by deed of same date, conveyed it to his son, Harvey Gray, for $2,000, who, his wife uniting, by deed dated 25th August, 1871, conveyed it for $4,000 to said William E. Gray, called Riley Gray; and by deed of 10th November, 1871, the latter and his wife conveyed it to Ira M. Hurt for $3,000, to-wit: $2,000 in land and $1,000 in money. Each deed acknowledged the payment of the purchase money. The bill set up these facts, and insisted on the satisfaction of the lien of the decree for $1,314.06 out of the land. In bis answer Ira M. Hurt set up as a defence that William E. Gray-paid the entire purchase money as surety of Cary Gray at the judicial sale, that there was a verbal agreement between Cary and W. E. Gray in 1866, that the latter should take the land to indemnify himself; that more than a year before Prillaman’s decree, W. E. Gray, by parol, sold the land to Harvey Gray and placed him in possession; that no deed was made by the sale commissioner until 1868, and that it was then made to Cary because he had been reported to the court as the purchaser ; that Oary conveyed it to Harvey same day according to the parol agreement, but that Harvey failing to pay for the land, W. E. Gray had to take it back, and that afterwards in 1871, the latter conveyed it to Ira M. Hurt. The defence being in brief, a parol contract between Cary and W. E. Gray and a resulting trust in favor of the latter who is claimed to have paid, the entire purchase money, and that this trust takes preference of the lien of Prillaman’s decree for said $1,314.06.</p> <p>But the evidence was uncertain and contradictory as to the material facts. The cause coming on to be heard the court decreed the sale of the land to satisfy the said decree; and therefrom the administratrix of Ira M. Hurt, who had died pending the suit, obtained an appeal and supersedeas from one of the judges of this court. Opinion states the case fully.</p>

Upon petition of John S. Wise for a writ of mandamus to compel John Bell Bigger, clerk of the house of delegates and keeper of the rolls of Virginia, to strike from the rolls the act entitled, “ An act to apportion the representation of the state of Virginia in the congress of the United States,” in force on 22d day of February, 1884, and to compel Rush U. Derr, superintendent of public printing, to omit said act from the acts of the general assembly for 1883-84.

<p>Railroads—Acquisition of Right of Way.—C., in 1851, conveyed to N. & W. R. R. Co. “ all right, title, interest and estate of, in and to so much of her land in W. county as may be laid out for the construction of its railroad,” to-wit: a strip eighty feet wide and containing nine acres. Of said land C. was only tenant for life, with remainder in fee in H. In 1881 C. died. No steps were taken by skid company to acquire said right of way, except taking conveyance from C. Within three years after C.’s death, H. brought unlawful detainer against said company for this land.</p> <p>Held :</p> <p>1. H. is entitled to judgment for the land.</p> <p>2. H.’s right of action did not accrue till C.’s death.</p> <p>3. Statute prescribes how such companies.may have land condemned for their purposes; but if they proceed by negotiations in pais with the life tenant only, they can acquire only such life tenant’s rights.</p>

<p>1. Court of Appeals—;Jurisdiction.—-To give this court jurisdiction, save in certain cases, the judgment must amount to $500, principal and interest, at its date, except when plaintiff’s demand exceeds that sum and he applies for the appeal. Gage v. Crockett, 27 Gratt. 734; Tebbs v. Lee, 76 Va. 744.</p> <p>2. Idem—Agreed Statement—Special Verdict.—Though plaintiff’s claims, except a sum less than $500, be admitted by defendant in an agreed statement of facts, and the sum so admitted may determine the jurisdic tion of this court (Tintsman v. National Bank, 100 U. S. 6); yet such is not the case where a special verdict finds plaintiff’s claim to be less than $500, whether court below renders judgment for plaintiff for the sum found by the verdict, or for the defendant.</p> <p>3. Idem—Case at Bar.—Plaintiff in assumpsit by his declaration claims $1,000 damages. The jury, by a special verdict, fixes plaintiff’s claim at $242, subject to the court’s opinion on the law. The court renders judgment for defendant, and plaintiff applies for writ of error.</p> <p>Held :</p> <p>This court hath jurisdiction.</p> <p>4. Statute of Frauds—Implied Contract—Case at Bar.—Defendant employs plaintiff by parol contract to furnish labor and materials to build a house, and agrees to pay him in money, merchandise, and land. Plaintiff incurs expense in preparing for the job, when defendant refuses to let him do it, and plaintiff brings his action, with a count on the special contract, and with common counts for labor done and materials furnished at defendants request.</p> <p>Held :</p> <p>1. The special contract cannot be enforced, because not being in writing’and signed by the defendant, and yet being intended to pass ownership of real estate, it is void.</p> <p>2. But though the special contract be void, yet defendant is liable under a new implied contract for the work done and materials furnished.</p>

Gardiner against the Chilhowie Iron Company. The object of the suit was to compel specific performance of a parol contract made with said company by said Gardiner for the sale of a tract of two thousand acres of land, the property of Gardiner's wife, for $10,000, in the stock of the said company at par, there having been partial performance of the contract by the delivery of possession of the land, and the exercise of ownership over it by the company in cutting timber,…

<p>1. Vendor and Vendee—Warranty of Title—Entry or Eviction.—When premises are in actual possession of third party, under paramount title at date of conveyance, it is unnecessary either to aver or to prove actual entry or eviction in action for breach of warranty of title to land.</p> <p>2. Idem—Estoppel.—Because deed recites that “immediate possession is delivered,” and declaration avers no eviction, covenantee is not thereby estopped to deny that he got possession.</p> <p>3. Idem—Breach—Measure of Damages.—The rule as to the measure of damages to which vendee is entitled upon a breach of warranty of title, is the amount of purchase money paid by him, with interest from date of eviction. Threlkeld v. Fitzhugh, 2 Leigh, 451, approved by Click v. Green & Sadler, 77 Va. 827.</p>

E. Wall was defendant. By deed dated January 29th, 1876, Edwards conveyed land to Wall. On its face the conveyance was absolute. Edwards had been indebted to Eichard Farmer in the sum of $135, with interest, and to secure payment thereof had executed a mortgage on the same land, which, in consideration of Wall’s promise to pay said debt, Edwards that day conveyed to Wall. A part of said land Wall afterwards sold and paid Farmer’s debt.

<p>Appeal from decree of circuit court of Franklin county, pronounced 16th May, 1882, in the cause of Archer Pettyjohn and others, distributees of the estate of Amanda Taliaferro, deceased, against James Calloway and others. By the said decree it was adjudged that Charles B. Reynolds, deceased, as receiver in the said cause, had collected, as of 8th November, 1860, the sum of $530, and that his estate was liable therefor to the said distributees, and ordered that Stephen Watts, executor of said Reynolds, pay the same de bonis testatoris. From this decree said executor obtained an appeal and writ of supersedeas from one of the judges of this court. Opinion states the facts.</p>

<p>1. Res Judicata—■Dismissed Agreed.—The judgment of a court of competent jurisdiction, dismissing a suit agreed, on the ground that it has been agreed by the parties, is a final determination of the matters which were actually, or might have been, litigated in that suit as against said parties and all claiming under them. Hoover v. Mitchell, 25 Gratt. 387; Wilcher v. Robertson, 78 Va. 602.</p> <p>2. Idem—Idem—Administrator.—-Where a party dies pendente lite, the suit may be compromised by his administrator, anda judgment entered dismissing the suit agreed, without there having been any revival thereof, is, unless reversed on appeal, final and a bar to further prosecution of that or any other suit for the same purpose.</p>

<p>1. Equity Jurisdiction and Relief—Laches and Lapse of Time.—Where statute of limitations has no direct application, a defence may, in a court of equity, be founded on mere lapse of time and staleness of claim. Sometimes the court acts by analogy to the law; sometimes by its own inherent doctrine of discouraging antiquated demands where there has been gross laches in prosecuting rights, or long and unreasonable acquiescence in the assertion of adverse rights. But every case depends on its own particulars. Hill v. Umberger, 77 Va. 653; Updike v. Lane, 78 Va. 132; Coles v. Ballard, Id. 139.</p> <p>2. Practice in Chancery—Bill to Surcharge—Effect of Answer.—Where bill makes certain items of ex parte settlement subjects of special surcharge, and calls on defendant to account therefor, defendant’s answer, though containing affirmative allegations giving such account in detail, is responsive to the bill and evidence for defendant. Corbin v. Mills, 19 Gratt. 466; Morrison v. Grubb, 23 Gratt. 342.</p> <p>3. Assignment—Possession—Presumption.—Bonds and notes may be assigned by mere transfer, without indorsement, in which case, however, only the equitable title passes, and possession thereof creates a prima facie case of ownership.</p> <p>4. Parent and Child—Implied Promise.—Where child marries and leaves parental roof, then returns to reside there with adequate means of support, and is boarded by father, the law presumes in such case, as in others, a promise to pay from the acceptance of the benefit.</p>

<p>1. Fraud—Rescission.—A false representation of a material fact constituting an inducement to the contract, on which the party had a right to rely, is a ground for a rescission of the contract by a court of equity, although the party making the representation was ignorant whether it was true or false; the real inquiry is not whether the party making the representation knew it to be false, but whether the other party believed it to be true, and was misled by it in making the contract. Lowe v. Trundle, 78 Va. 65.</p> <p>2. Idem—Statute of Frauds—Case at Bar.—M. bought land at judicial sale; induced S. to take it off his hands; telling him the judgments, to pay which the land was sold, were obtained before debtor’s marriage, and hence were paramount to his wife’s contingent right of dower, and would consume the entire purchase price. These representations were false. Debtor died. His widow recovered dower against S., who was adjudged to pay her annually, interest during her life on one-third of the land’s value. S. brought bill in equity for compensation against A., administrator of M. Defendant demurred, and plead the statute of frauds. Demurrer was overruled and plea rejected. On appeal—</p> <p>Held :</p> <p>1. Demurrer was properly overruled.</p> <p>2. Plea of statute of frauds was properly rejected. Brown v. Brown, 77 Va. 619.</p> <p>3. The court of equity had jurisdiction of the fraud set out in the bill, and to afford the relief prayed for, by transferring the liability for the widow’s annuity from S. to the estate of M., to accomplish which there was no adequate remedy at law. Wampler v. Wampler, 30 Gratt. 454.</p>

<p>Appeal from decree of circuit court of Wythe county, entered 15th March, 1884, in a chancery cause therein pending under the style of Henderlite, trustee, against Abijah Thomas and als. By the decree complained of, an order was entered, on a rule to show cause against Thomas H. Thurman, George S. Smith, George D. Smith, and W. D. Wilmore, who were sureties of said Henderlite on his official bond as receiver in said cause, for the payment of the sum of $3,663.53, with interest from 3d September, 1878, until paid, and costs. From this decree the said sureties, Thurman and als., obtained from one of the judges of this court an appeal and a writ of supersedeas. Opinion states the case.</p>

Argued at Wytheville but decided at Staunton. Error to judgment of circuit court, of Wythe county, refusing a writ of error to judgment of county court of said county, rendered January 21st, 1884, by which judgment the plaintiff in error was, in accordance.with the verdict of the jury,- at his trial on an indictment for the murder of Craig Brown, sentenced to death by hanging.

bill, brought by appellant, to rescind conveyance made by him to appellee, of house and lot in Winchester, which he alleged had been procured from him by the fraud and false representations of the appellee and his confederates. Opinion states the case.

Mary W. Tuley was complainant and B. T. Barton, surviving executor of David W. Barton, deceased, and E. Holmes Boyd, trustee, were defendants. In December, 1865, Mrs. Tuley purchased of David W. Boyd a house and lot in Winchester, in said county, at the price of $7,000. Of this price she paid one-third in cash. For the residue, she executed her two bonds, which she afterwards, in May, 1868, secured 'by a deed of trust on the property to said Boyd, as trustee.

<p>Churches and Church Property—Case at Bar.—In 1854 N. devised, after C.’s death, a house and lot at B., to the trustees of the M. E. church at B., for the use of said church. B. was within the limits of the Baltimore conference then attached to the M. E. church, but afterwards, in 1866, attached to the M. E. church south. In 1876 a joint commission, appointed by the general conferences of the two churches, awarded this house and lot to the M. E. church south. C., the life tenant, died in 1881. Upon a bill by the trustees of the M. E. church south, at B., against those of the M. E. church at B., to determine the title to this house and lot—</p> <p>Held:</p> <p>1. Baltimore conference, by its said action in 1866, did not become entitled to the benefit of the plan of division adopted in the general conference of the church in 1844. Hoskinson v. Pusey, 32 Gratt. 428.</p> <p>2. The devise was to a particular congregation of the M. E. church ; and hence was valid. It was not to that church in a general sense. If it had been, it would have been invalid. Code 1873, chapter 76, § 8.</p> <p>3. The general conference of the M. E. church had no power, directly or indirectly, to transfer the property of the said congregation of. the M. E. church at B. to the M. E. church south.</p> <p>4. Hence the joint commission at Cape May had no power to make such award.</p>

<p>Error to judgment of circuit court of Clarke county, rendered October 31st, 1883, affirming judgment of county court of said county m an action of unlawful detainer, wherein M. N. Frasher, administrator of John H. Frasher, deceased, was plaintiff, and Josiah E. Locke was defendant. Opinion states the case.</p>

<p>1. Practice in Chancery—Creditor's Bill.—A bill sets up complainant’s claim only, and does not purport to be a creditor’s bill, yet it may be treated as such. Creditors may come in by petition as plaintiff. A decree of account of debts may be entered, which will operate a suspension of all other suits of creditors, who must prove their debts under said decree. Ewing v. Ferguson, 33 Gratt. 548.</p> <p>2. Improvements—Allowance for—Heirs.—Statute (Code 1873, ch. 132) providing allowance for improvements by defendant, against whom decree or judgment is rendered for land held by him under title believed by him to be good, applies not to the case of an heir, who, after suit, to which he is a party, to settle his ancestor’s estate, and after decree to sell the real estate, but before it is all sold, buys, under bona fide belief that it would be unnecessary to sell all in order to pay the debts, the shares of his co-heirs in a part of the unsold real estate, and erects thereon permanent improvements. Grœme v. Cullen, 23 Gratt. 266.</p> <p>3. Lis Pendens— Common Law Doctrine—Statute.—Independent of statute, purchaser, pendente lite from party to suit of the subject thereof, takes it bound in his hands by any decree rendered against his vendor in that suit touching said subject. By statute (Code 1873, ch. 182, § 5) such purchaser is not bound by such decree, unless and until the lis pendens is recorded, as thereby directed; provided he purchased without actual notice of the pending suit. Easley v. Barksdale, 75 Va. 280.</p>

Tee wait, son of Samuel Teewalt, to recover of the Valley Mutual Life Association of Virginia, the sum of one thousand dollars for which the father had insured his life in favor of his son. To this action defendant company demurred, pleaded non assumpsit, and several special pleas, alleging fraud, misrepresentation, breach of warranty, and concealment in respect to the age of the insured. A verdict was found for the plaintiff and judgment entered accordingly.

<p>1. Appellate Court—Issues of Fact.—Where court below has upon the evidence determined a question of fact, this court will not overturn its decision except in cases of manifest error or misconduct. Womack v. Tankersley, 78 Va. 242.</p> <p>2. Assignment—Scope and Extent—Case at Bar.—In 1859, R. and wife owed J. $2,000, secured by trust deed on steam mill and land. In 1861, R. and wife sold mill to A. for $1,128.76, and R. and wife, J., and C., the trustee, conveyed it to A., who reconveyed it to C. in trust to secure his bond, payable to Mrs. R., for the price. Later, in 1861, J., being indebted by note to G. in $3,893, by writing assigned to G. certain bonds and $1,145.85 out of the debt of R. and wife to" J., making $3,969.11. G. delivered to J. his note and paid the $76.14 excess. In 1879, at J.’s instance, C. advertised the land for sale. G. filed his bill, praying the court to administer the trust and apply proceeds to balance due him. J. answered, denying that any interest under that deed had been assigned to G. The written assignment on its face was ambiguous. The testimony taken was unsatisfactory and contradictory. The court below decided for G. On appeal here—</p> <p>Held (Lacy and Fautleroy, J.’s, dissenting):</p> <p>The assignment entitled G. to $1,145 out of the entire debt of R. and wife to J., and to that extent to the benefit of all J.’s securities, including the trust deed on the land.</p>

Samuel P. Shirley and John E. Rice purchased adjacent parcels of the land sold in 1879, under a decree in said suit. Shirley considered that he had purchased with his parcel of land a right of way over that which Rice had bought. But the commissioner, who made the conveyance, failed to reserve the said right of way through mistake, as Shirley alleged. In 1883 Rice conveyed his land to Koiner for valuable consideration and without reservation.

H. Worthen and John Vilwig. The object of this suit was a discovery on oath from the company’s agent, Worthen, of his receipts and credits;.and an account, before a commissioner, of the amount due to the company from its said agent, for which John Vilwig was liable as surety on Worthen’s official bond, executed 13th January, 1875. Defendants demurred to and answered the complainant's bill, and several years after the suit was brought, filed a plea to the jurisdiction.

<p>x. Practice At Common Law—General Issue—Special Pleas.—Where, in an action at law, the pleadings have already been made up on the general issue, and after much delay the defendant tenders prolix and obscure special pleas setting up matters amounting to the general issue and provable under it, the rejection of such pleas by the trial court is not error. B. & O. R. R. Co. v. Polly, Woods & Co., 14 Gratt. 447.</p> <p>2. Idem—Usury—Special Pleas—Case at Bar.—Special plea avers that note in suit was made for balance of a note given by one not a party to the suit, for the aggregate of sundry notes, one whereof was undue, and that there was no allowance made for that fact in ascertaining such aggregate, and that hence interest having been twice exacted for the sum of the undue note, the note for the aggregate was usurious, and tainted the note in suit—</p> <p>Held :</p> <p>Failing to include the present worth only, instead of the face value of the undue note, did not constitute usury in the note for the aggregate ; but if it did, the taking of the note in suit was such change of parties as purged the transaction of usury, and the new note is valid. Drake v. Chandler, 18 Gratt. 909.</p> <p>3. Idem—Mistakes—Equitable Defences—Case at Bar.—Where plea avers that note in suit was made for balance of a note given for the aggregate of sundry notes, and that in the aggregate there was by mistake included a note which had been paid, and that the mistake had been continued on into the note in suit, and was only recently discovered by defendant—</p> <p>Held:</p> <p>If such be a defence, it should have been made by a sworn plea under Code 1873, ch. 168, sec. 5, or in a court of equity.</p> <p>4. Idem—Inducements—Equitable Defences.—Where plea avers that defendant had been induced 'by plaintiff to make a note, for which the note in suit is a renewal, and which was given for another’s debt, by representing to defendant that that debt was amply secured by trust deed on real estate, whilst the plea on its face shows that the note was renewed several times after defendant knew that the trust deed would not satisfy the debt, and that defendant had changed the debt by dropping the original debtor, and giving the note in suit; such facts constitute no defence to the note in suit.</p> <p>5. Idem—Duress—Case at Bar.—Previous to 1872 B. had made sundry notes held by plaintiff, and had forged thereon the names of the defendants, C. & K., the latter being his son-in-law. Plaintiff informed K. that B. would be prosecuted for the forgery, unless K. with C„ as endorsers for B., as maker, gave a new note in lieu of the forged notes. The new note was accordingly given, and B. was not prosecuted. The note of 1872 was repeatedly renewed, and the note in suit was given by defendants (B. having been dropped off) for the balance, after sundry payments—</p> <p>Held :</p> <p>These facts do not amount to such duress as will avoid a contract.</p> <p>6. Idem—Pleadings—Amendments—Delay.—Defendant should be permitted to amend his pleadings, or add to his pleas whenever justice requires it, provided unreasonable delay be not thereby occasioned, or good reason be shown for not having done so sooner. But he will not be permitted so to do where he has had ample opportunity for earlier action, and has, without sufficient excuse, delayed until the trial is at hand.</p>

Appeal of Hugh. M. Kelson, as administrator of Mrs. Anna M. A. Kelson, deceased, and in his own right, from decrees of circuit court of Clarke county, entered 29th May, 1878,1st June, 1881, and 6th February, 1883, in the chancery cause of A. M. A. Kelson, executrix of Hugh M. Kelson, deceased, against Randolph Kownslar’s executor, William F. Turner’s administrator and als.

Appeal' from decree of circuit court of Rockingham county, rendered January 13th, 1880, in the cause of Jonathan Shafer and others against David Coffman’s representatives. This is the sequel to Coffman’s Executors &, als. v. Shafer & al., 29 Gratt. 173. Joseph Coffman, in 1844, conveyed his land to David Coffman by deed absolute on its face.

Saum and Joseph Hutchinson, administrators of Robert Hutchinson, deceased, and others. The circuit court at the hearing, decreed that R. M. Conn, one of the defendants, recover of said Saum $283.83, with interest thereon from December 8th, 1857, till paid.' From this decree Saum obtained an appeal and supersedeas from one of the judges of this court. Opinion states the case.

R. Allehaugh, administrator of Adam Layman, deceased, against Henry H. Downing, executor of Jacob Barley, deceased, and Ann Y. Barley, Wm. H. Barley and Lewis O. Barley, the only children, heirs and devisees of Wm. H. Barley, deceased.

Saunders, to an indictment against him for petit larceny. The pleas averred that the accused, before said indictment was found, had been put upon his trial upon a warrant charging him with the same offence as alleged in the indictment, before certain justices of said county having jurisdiction of the alleged offence; and that the said justices heard the case on its merits by hearing the evidence adduced by the commonwealth and by the accused, and the argument of counsel, and…

November, 1882, and 3d December, 1883, respectively, in tbe cause of Daniel Wright’s executors and others against Thomas Allen Tidball’s executors and others. Mr. Tidball died in 1856, and his will was probated 6th May of that year, and James Marshall and Province McCormick named therein as executors, duly qualified as such, giving bond in penalty of $70,000, with Henry M. Marshall, Francis McCormick, William Taylor, and Hugh H. McGuire, as sureties.

<p>Appeal from decrees of circuit court of Bockingham county-rendered at March term, 1880, in the chancery cause of Maggie J. Mauzy and als. by &c., against Mauzy and als. Opinion states the case.</p>

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

D. Gayle was complainant and I. M. Sloan, administrator of E. O. Hayes, deceased, and others, were defendants. Argued at Richmond, hut decided at Wytheville. D. D. Gayle, in November, 1871, married Fanny C., widow of George L. Hayes, Sr. At the time of the marriage she had an only child, a son ten years old. To him his father had conveyed a tract of 535 acres of land, and to children hy previous wives, he had conveyed other lands.

<p>Appeal (argued at Staunton but decided at Richmond) from certain decrees of circuit court of Rockingham county, rendered 29th October, 1881, and 3d March, 1882, in a chancery cause, wherein James Kenney, trustee, for Allen O. Bryan, was complainant, and J. P. Effinger was defendant. This is a sequel to cause of Effinger v. Kenney, Trustee, 24 Gratt. 116. After the decree of sale made therein in November, 1878, was affirmed by this court in October, 1881, the land, the sale of which had'been directed by that decree, was sold, and the sale was reported. Effinger excepted to its confirmation, on the ground that there had been no previous account of the liens on the land and of the priorities thereof, and that the land sold for inadequate prices. The circuit court overruled the exceptions and confirmed the sale, and from the decree Effinger appealed.</p>

Upon petition for writ of mandamus, by William M. Flanagan-—a member of board of directors of Central Lunatic Asylum, appointed by the governor of this commonwealth, under act of the general assembly approved February 15, 1882, to serve three years from March 1, 1882, and who had been removed from that office by an order of the governor, dated February 5, 1882-—against the said'board and W. H. Wilkerson, appointed to succeed petitioner, to compel them to show, cause why said…

<p>1. Criminal Jurisdiction and Proceedings—Inquest.—Proceedings before coroner are generally inadmissible as evidence at trial of indictment for murder. So likewise is opinion of witness as to tendency of evidence before coroner.</p> <p>2. Idem—Instructions.—An instruction correctly stating the law, and given in direct response to an inquiry from the jury, though seemingly abstract and foreign to the case, furnishes no sufficient ground to set aside the verdict. Perkins' Case, 7 Gratt. 654.</p> <p>3. Idem—New Trial—After-discovered Evidence.—New trial on this ground is granted under the circumstances following, viz: 1. The evidence must have been discovered only since the trial. 2. It must be evidence which could not have been discovered before the trial by exercise of reasonable diligence. 3. It must be material, and such as on another trial ought to produce an opposite result. 4. It must not be merely cumulative, corroborative, or collateral. Wynne v. Newman, 75 Va. 812.</p> <p>4. Idem—Idem— Verdict contrary to Evidence.—Great weight is due to the verdict of the jury, and new trial, solely onground that it is contrary to the evidence, will be granted very cautiously, and only when the verdict is manifestly wrong.</p>

<p>Error to judgment of circuit court of city of Richmond, rendered 12th January, 1884, in an action of assumupsit brought by the Kendall Bank Rote Company against the commissioners of the sinking fund of the state of Virginia, wherein a verdict and judgment were rendered against them in favor of the plaintiff for $30,000, and interest, &c. This action was instituted for damages accruing to plaintiff by reason of the defendant’s breach of a contract made by them with plaintiff in April, 1882, for the engraving and printing of certain bonds, coupons and certificates, under an act of the general assembly of Virginia, commonly known as the Riddleberger bill. To this judgment the commissioners obtained a writ of error and supersedeas. Opinion states the case.</p>

<p>Principal and Agent—Case at Bar.—M., in 1849, then in prime of life, and of more than ordinary business capacity, employed her nephew, R., as her agent, and turned over to him certain bonds and slaves, the interest and hires whereof he was to collect from time to time and pay over. She was familiar with his books, wherein he kept account of these transactions. They made repeated settlements, with those books as their guide, and she gave him receipts, recognizing the correctness of their accounts as kept by him. As late as 1873 those accounts and her receipts showed balance due her of only $73.12, whilst errors, in calculation and otherwise, appear to turn the balance, in his favor. He received nothing after that. He died in 1875. Though in his life she had never complained of him, yet, in 1876, she filed her bill praying for a settlement of his accounts as her agent, charging that on a fair settlement his estate owed her a very large sum of money, and alleging that she had had the utmost confidence in his integrity, and had signed many papers at his request, supposing they were only receipts for money paid her by him, then or previously, and charging that any papers signed by her, and purporting to be a full or partial settlement between them, which might be found among his papers, were procured by fraud. R.’s administrator answered, denying all fraud and all indebtedness to her, and set up the said accounts and receipts, showing balance in favor of decedent. Reference being decreed, the master reported that R.’s accounts were in the main correct up to 1859. He then (though her bill made no complaint of it) disallowed a charge by R. against M. as of March, 1864, for $2,200, invested in eight per cent. Confederate bonds, as an investment which “ no prudent man would at that time have made of his own money.” He also allowed her credit as of 1859 for $1,293.25, as amount retained by him of proceeds of sale of slaves wherein she bad a life interest, but without proof, and for a bond of $300 alleged (without proof) to have been by him collected. By these alterations in the accounts, as kept by R., and by interest, the master reported R.’s indebtedness to M. at $9,542.31, principal and interest, which, however, the court below reduced to $7,628.06, and decreed accordingly. Upon appeal—</p> <p>Held :</p> <p>1. Fraud must be proved, not inferred.</p> <p>2. The accounts and receipts must be taken as conclusive of the state • of indebtedness between this principal and her agent.</p> <p>3. The agent was entitled to credit for the investment in Confederate bonds.</p> <p>4. The charge against him for the $1,293.25 was plainly improper.</p> <p>5. The accounts as kept by the agent and approved by the principal, properly calculated, show such a small difference either way, as not to justify a new account, but to require the dismission of the bill.</p>

Hill and wife in their own right, and said Edward B. Hill, as executor of Thomas Hill, deceased, and as trustee of the complainant, Henry Hill, and others.

<p>1. Construction of Statutes—Penalties.—Code 1873, ch. 15, § 13, providing that if by a nevf law repealing a former law, any penalty, forfeiture or punishment be mitigated by any provision of the new law, such provision may, with the consent of the parties affected, be applied to any judgment pronounced after the new law takes effect, applies to forfeitures in civil as well as criminal cases. Mosby v. St. Louis Mutual Ins. Co., 31 Gratt. 629.</p> <p>2. Idem—Usury—Penalty.—Though the statute of usury, at date of contract, declares it to be null, yet if at date of decree the statute has been amended, and only annuls contract for interest, decree should be for principal loaned, with interest from date of decree.</p> <p>3. Usury—Pre-existing Debt.—Though the notes be usurious and null, yet if part of their consideration was a pre-existing valid debt, which continues to be a valid debt, the decree should be for the principal of the new notes, with interest on the pre-existing debt from the time it was entitled to bear interest. Bank of Washington v. Arthur, 3 Gratt. 165.</p>

<p>Appeal from decrees of circuit court of Albemarle county, pronounced in the years 1881, 1882 and 1883, in the cause of Crank’s Executors against Crank’s Heirs, &c.</p> <p>R. Gr. Crank died in 1881, leaving a will in which W. Gr. Farish was named as executor. The will gave executor privilege of taking testator’s farm, “Home Place,” at $15 per acre, and if he refused to do so, his brother, T. M. Farish, was given same privilege; and in event of his refusal, executor was required to sell it. Executor and brother both refused to take it, and it was sold at public auction and purchased by Frank P. Farish, another brother of executor, at $13.50 per acre. Purchaser was .ready and willing to comply with terms of sale. Executor thereupon sent to each of the parties interested a copy of the letter set out in the opinion, offering to cancel the sale if any one of them objected to it, but expressing opinion that the land would bring less at second sale, and saying that his brother Frank would probably be willing to buy at second sale, and that if he could get the land for less would do so. Some of the parties objected to the sale, and the land was resold, and Frank again became purchaser, at $10.30 per acre. Between first and second sales executor filed his bill in circuit court, asking that the estate be administered under its direction. He set out first sale and its cancellation, and by an amended bill reported second sale to court for confirmation. Defendants, Twyman and wife, Michie and wife, and Wayland and wife, answered the bill, charging a devastavit against executor in sale of “Home Place,” objecting to confirmation of second sale, and seeking to hold him liable for difference between the two sales. Wayland and wife also sought to charge estate of testator, R. Gr. Crank, for his alleged devastavit as executor of George Crank, deceased, in selling the personal property of that estate in March, 1865, for Confederate currency. By decree of October 14, 1881, the court approved conduct of executor in reference to first sale, but refused to confirm second sale, and ordered a resale, and referred the cause to a commissioner to take certain accounts. “Home Place” was resold, and Frank P. Farish again became purchaser at $10.30 per acre, hut transferred purchase to T. M. Farish, and the sale was so reported to the court and confirmed. T. M. Farish, before the purchase money had been paid, transferred the purchase to executor, Wm. Gr. Farish, as trustee for his wife, and this was reported to the court and approved, without exception, and a deed was directed to he made to the trustee when the purchase money should have been fully paid. A commissioner having reported against the. claim of Wayland and wife, seeking to charge the estate for the devastavit of R. Gr. Orank as executor of W. Gr. Orank, the court, by decree of May 21,1883, overruled their exceptions and confirmed the report. And from this decree the appellants appealed. All other facts appear in the opinion.</p>

White, sentencing him (for the second offence under the same act) to pay a fine of five hundred dollars and the costs of the prosecution, and to be confined in the jail of the said city until the fine and costs be paid.

<p>1. Married Woman—Separate Estate—General Engagements.—The note, or other general engagement of a married woman, owning separate estate, creates no specific lien on such estate. To satisfy the same, the personal property and the rents and profits of the real property of such estate, may be sold by decree of court when the wife’s interest is absolute, and there is no restraint upon its alienation. But, in no case, should the real estate be decreed to be sold to satisfy such engagement.</p> <p>2. Idem—Idem—Practice in Chancery.—-A bill to subject feme coverte’s separate estate to payment of her note, or other general engagement, filed after her alienation of such estate bona fide for valuable consideration, presents no case meet for the consideration of a court of equity, and will be dismissed on demurrer.</p> <p>3. Idem—Idem—Creditors by Note, &c.—Where land is settled on wife for life to use for support of self and children, remainder to her children surviving her, but to her husband, should he survive both her and them, with power to her to sell trust corpus, and reinvest proceeds subject to same trust and limitations, creditors, by her general engagements, are entitled only to her ratable portion of the remnant of those rents and profits after deducting the support of herself and children.</p> <p>4. Idem—Idem—Specific Lienors.—Where in suit by such creditors it is not alleged nor apparent that such remnant exists, the bill will be dismissed, but without prejudice quoad such creditors as appear to hold specific liens on the trust property, yet who have not set them up in the suit, although reported, without sufficient proof, by the commissioner.</p>

<p>1. Practice in Chancery—Amended Bill.—Demurrer to bill being sustained for formal defects, the amended bill filed by leave is a continuation of the suit, the commencement whereof stopped the running of the statute of limitations.</p> <p>2. Statute of Limitations—Fiduciaries—Stay-period.—In computing time within which suits on demands against fiduciaries may be brought, the stay-period must be eliminated as in other cases.</p> <p>3. Idem—Case at Bar.—H.’s guardianship of J. and G. revoked in 1852. G. died under age. J. attained majority, April 16, 1860. Suit instituted September 18, 1871, against H.’s sureties to recover amount due ward—</p> <p>Held:</p> <p>Statute began to run 16th April, i860. Period from 17th April, 1861, to 1st January, 1869, being eliminated, only three years, eight months and nineteen days had elapsed of the ten years necessary to bar suit against such sureties when the suit was instituted.</p> <p>4. Laches—• Case at Bar.—Equity does not lend its aid to enforce stale demands, when, by reason of the death of parties, or loss of papers, or other circumstances, there can no longer be a safe determination of the controversy. But in case' at bar such circumstances 'do not exist. Updike v. Lane, 78 Va. 132; Rowe v. Bentley, 29 Gratt. 756.</p> <p>5. Evidence—Record—Admission.—Record of one suit is admissible in another in favor of a stranger against a party thereto, not as a judgment conclusively establishing a fact, but as an admission.</p> <p>6. Appellate Court—Report—Exceptions.—<For errors, not apparent on face of commissioner’s report, exceptions cannot for first time be taken here.</p>

<p>County Judges—Salaries.—F. was duly commissioned and qualified, and acted as county judge for the two counties of K. W. and K. & Q. until the general assembly ascertained that K. & Q. county had eight thousand inhabitants and made it a judicial district, and J. was elected and commissioned, and qualified as county judge thereof, and assumed the office. Nevertheless F., claiming still to be judge of K. & Q. county, and to be entitled to the salary as such, applied to this court for a mandamus to compel the supervisors of K. & Q. to pay it.</p> <p>Held :</p> <p>F. is no longer judge of K. &. Q. county court, and is of course not entitled to receive a salary as such.</p>

<p>Appeal from decree of circuit court of Appomattox county, rendered September 20th, 1882, in cause of A. Brown’s administrator against James G. Patterson, administrator of James M. Fitch, deceased, and ais., and on cross bill of Charles B. Fitch, sole heir of said J. M. Fitch.</p> <p>Object of bill was to subject decedent’s real estate in the hands of his heir to pay his debts. Object of cross hill was to hold Patterson and his surety,-Le Grand, responsible for his devastavit charged to have been by him committed in his failure, in 1862, to sell a part of decedent’s slaves and pay his debts, they being ample for such purpose, instead of allowing the widow' to keep and lose them and the other personalty, thus throwing the burden of those debts on the land in the hands of the heir. Upon hearing, court below decreed in favor of the heir. To which decree Le Grand’s administrator appealed. Opinion fully states the case.</p>

Upon petition of Hon. John D. Foster for a mandamus to compel J. H. O. Jones to deliver up to him the office of judge of the county court of King & Queen county.

Brown,(in her own right and as administratrix with will annexed of A. Hill Br.own, deceased, against Susan Brown and her four children, Travis, Roberta, Jennie, and William H. Brown. By the will, testator left certain named articles and half the remaining real and personal property to his widow, Mary C. Brown, and all the remaining property to his sister, Susan Brown, and after her death the same to descend to her heirs.

<p>1. Appellate Proceedings—New Trial.—Every reasonable presumption is made in support of a verdict fairly rendered, which cannot be set aside as against the evidence, unless the evidence is plainly insufficient to warrant the finding. Blair & Hoge v. Wilson, 28 Gratt. 165.</p> <p>2. Idem—Idem—Certificate of Evidence.—Where the evidencé, and not facts proved, is certified, the verdict will not be disturbed, unless it appears plainly wrong after rejecting all the exceptor’s parol evidence, and giving full faith to that of the other party.</p>

Georgiana Parker against the town of Suffolk, for an alleged nuisance in negligently erecting, using, and managing its market house. At and after the nuisance, she owned and occupied a dwelling house, situated in that town near the market house. When she became such owner there was no market house near it, and none contemplated.

Munford, and Tayloe v. Munford. To the former suit, the Lynchburg Iron Company was no party. In it was controverted the right of Tayloe to a note made April 1st, 1875, by T. T. Munford to E. Dillon, trustee, for $6,449.80, and to have a lien therefor on certain real estate which had passed into the hands of said company. The note was not assigned by endorsement to Tayloe; it was endorsed for collection; and the testimony was conflicting as to whose money discharged the note.

<p>Error to order of circuit judge of Clarke county, made in vacation, on 4th August, 1882, in refusing application of J. P. Haddox for a license to sell liquor by retail at Millwood Chapel magisterial district in said county.</p> <p>Under Acts 1879-80, page 271, entitled “ An act to provide for submitting the question of liquor licenses, or no liquor licenses, to the qualified voters of Warren and Clarke counties, and to the qualified voters of each magisterial district in said counties, on the Tuesday succeeding the first Monday in November, 1880, and every two years thereafter,”—an election was held, which resulted in a majority against liquor licenses in Chapel magisterial district, but no notices of said election were posted in said district as required by said act. The plaintiff in error, on 10th April, 1882, applied to the county court of Clarke county for such license at Millwood in said district. The court certified that it was satisfied that the applicant was a fit person, and that his place was suitable for said business, hut refused the application on the sole ground that at said election a majority of the votes cast in said district on the question of license or no license, was against license. And during the term, the applicant appealed of right to the circuit court or judge, giving bond as required by law. On 4th August, 1882, before the circuit judge of Clarke county, in vacation, the appeal came on to be ■heard de novo, when the honorable judge made the same order on the same ground. At the hearing, the applicant offered two witnesses to prove that notices of said election had not been posted in Clarke county and in said district as required by law; hut the judge refused to admit such evidence and the applicant excepted. To this order the applicant obtained a writ of error and supersedeas.</p>