Volume 8 — Virginia Reports

<p>The first court of appeals was a legislative court only; and it was not necessary, that the judges should produce any commissions, or the executive be present, when they qualified; for the act constituting the court, had not directed commissions to be issued, or the oaths to be taken in the presence of the executive; and the judges, by construction of law, knew each other to be judges of the courts to which they respectively belonged.</p> <p>Mode of qualifying the judges of the first court of appeals.</p>

Brown and Louisa E. II. his wife, formerly Tatum. The original bill alleged that Susanna W. At- . ° • ° * lemon, being a femé sole of full age and about to inter-man7 W^1 *7esse A. Bonner, and being desirous, previous to her marriage, to make some provision out of her own property for the female complainant, who was her half sister, with the full knowledge and previous approbation of her intended husband, executed a deed of gift to the female complainant, whereby, in…

This was an action of assumpsit brought in the Circuit court of Monongalia county by A. W. Tenant, adm’r of John Minor, against Samuel Minor. The declaration contained two counts for money had and received ; the first for money had and received to the use of the plaintiff’s intestate in his lifetime, the other for money had and received to the use of the plaintiff, as administrator of John Minor.

<p>If the clerk of this court neglects to attend his duty in court; or the clerk of an inferior court to furnish the copy of the record of the inferior court to enable the applicant to prosecute his appeal to this court, this court will, after a rule to shew cause, animadvert upon his conduct.</p>

<p>The court of appeals had jurisdiction in criminal cases adjourned thither from the general court.</p> <p>The treason law of 1776 was constitutional; and the house of delegates could not, without the concurrence of the senate, pardon three persons condemned under it by the general court.</p>

On the 29th day of February 1848, John Miller and Joel McPherson made complaint before a justice of the peace of the county of Greenbrier, that James Gales had unlawfully turned them out of possession of a certain cabin and tenement containing about forty acres, on the end of Ohesnut mountain, part of a survey or tract of eleven hundred acres, in the county aforesaid; whereof they prayed restitution.

<p>(Absent Tucker,* P.)</p> <p>Question whether the sale of a tract of land was by the acre or in gross.</p>

This was an action of covenant brought in August 1846, in the Circuit court of Frederick county, by Robert S. Walker against Joshua Newbrough. The declaration set out a covenant by which Newbrough agreed to rent to Walker his mill in the county of Frederick, for two years from the first of July 1846, for the rent of 300 dollars a year, payable every three months.

By deed executed the 3rd day of September 1825, between Fontain Beckham, Ann A. R. Stephenson and John S. Gallaher, — reciting that' a marriage was intended to be shortly had between the two first named parties, and that it had been agreed that all the said Beckham’s property should be conveyed in trust for the sole and separate use and benefit of the said Ann A. R. Stephenson, free from the debts or control of her intended husband, and subject to her own control and…

<p>By the first section of the act of assembly, for adjusting and settling the titles of claimers to unpatented lands, passed at the May session 1779, it is provided, That surveys of' waste lands upon the western waters before the first of January 1778, and upon the eastern waters before the end of that assembly, “ upon any order of council,* or entry in the council books, and made during the time in which it should appear,” either from the original, or any subsequent order, entry, or proceedings in the council books, that such order -or entry remained in force, the terms of which had been complied with, or the time for performing the same unexpired, should be good and valid. Ch. Rev. 90.</p> <p>By the fourth section it is enacted as follows, “And whereas great numbers of people have settled in the country upon the western waters, upon waste and unappropriated lands, for which they have been hitherto prevented from suing out patents or obtaining legal titles by the king of Great Britain’s proclamations or instructions to his governours, or by the late change of government, and the present war having delayed until now, the opening of a land office, and the establishment of any certain terms for granting lands, and it is just that those settling under such circumstances should have some reasonable allowance for the charge and risk they have incurred, and thpt the property so acquired should be secured to them : Be it therefore enacted, That all persons who, at any time before the first day of January, in the year one thousand seven hundred and seventy-eight, have really and bona fide settled themselves or their families, or at his, her, or their charge, have settled others upon waste or unappropriated lands on the said western waters, to which no other ^person hath any legal right or claim, shall be allowed for every family so settled, four hundred acres of land, or such smaller quantity as the party chooses, to in-elude such settlement. And where any such settler hath bad any survey made for him or her, under any order of the former government, since the twenty-sixth day of October in the year one thousand seven hundred and sixty-three, in consideration of such settlement for less than four hundred acres of land, such settler, his or her heirs, may claim and be allowed as much adjoining waste and unappropriated land, as together with the land so surveyed will make up the quantity of four hundred acres.” Ch. Rev. 91.</p> <p>The fifth section provides for the case of villagers; and, afterwards, directs, that “ All persons who, since the said first day of January, in the year one thousand seven hundred and seventy-eight, have actually* settled on any waste or unappropriated lands on the said western waters, to which no other person hath a just or legal right, or claim, shall be entitled to the preemption of any quantity of land, not exceeding four hundred acres, to include such settlement, at the state price to other purchasers.” Ch. Rev. 92.</p> <p>By the seventh section, it is enacted as follows, “ And whereas it hath been represented to the general assembly, that upon lands surveyed, for sundry companies by virtue of orders of council, many people have settled without specific agreement, but yet under the faith of the terms of sale publicly offered by the said companies or their agents at the time of such settlements, who have made valuable improvements thereon : Re it enacted and declared, That all persons so settled upon any unpatented lands, surveyed as before mentioned, except only such lands as before the settlement of the same, were notoriously reserved by the respective companies for their own use, shall have their titles confirmed to them by the members of such companies, or their agents, upon payment of the price at which such lands were offered for sale when they were settled, together with interest thereon from the time of the respective settlements, provided they compromise their claims with the said companies, or lay them before the commissioners for their respective counties, to be appointed by virtue of this act, and have the same tried and determined by them, in manner herein after directed.” CH. Rev. 92.</p> <p>The tenth section directs, “ that all-claims for lands upon surveys under any order of council, or entry in the council books, shall, by the respective claimers, be laid before the court of appeals,” who were to hear and determine them in a summary way, upon such evidence as, in the opinion of the court, the nature of the case might require. Ch. Rev. 94.</p> <p>Under the foregoing acts of assembly, the Loyal and Greenbrier companies presented, in December 1779, petitions to the court for the confirmation of their respective titles to lands claimed by them under certain orders of council.</p> <p>That of the Loyal company (written by judge Pendleton, who was a member of the company) set forth, That under the late government, “ and according to the forms thereof for granting lands in this state,” — an order of the governour and council, of the 12th July 1749, was made; whereby leave was granted to John Lewis, Thomas Walker, and others, to take up and survey 800,000 acres of land in one, or more, surveys, beginning on the bounds between this state and North Carolina, and running to the westward, and to the north, so as to include the said quantity; “ and they were allowed four years time to survey and pay rights for the same, upon return of the plans to the secretary's office.”</p> <p>That “ the grantees being wholly stop'd, in their endeavours to carry the said order into execution, the governour and council, by their order of June I4th, 1753, allowed them the further term of four years for completing their surveys of the said land; whereupon the company in order to encourage the speedy settlement of that frontier, appointed Thomas Walker, esq. one of their number, agent, with power and direction to survey any of the said land in small parcels, and sell the same to settlers, at the rate of three pounds per hundred acres, over and above the expence of surveyors’ fees and rights.”</p> <p>“ That these terms being published, through the states of America, were so generally agreeable, that, in that year and the beginning of the following, there was surveyed and sold the several parcels in the schedule annexed ; and the company would have been able to have compleated their whole surveys within the time allowed them, but that, in the said year 1754, a war commenced, in that country, with the neighbouring Indians, which stop’d their further progress, and drove all or the greater part of the settlers from the lands surveyed and sold them.”</p> <p>“That, on the establishment of peace, the company, on the 25th of May, 1763, petitioned the then governour and council for a renewal and confirmation of their said grant, having been hindered, by the war, from performing the condition thereof, but the board were of opinion that they were restrained, by the king’s instructions, from granting such renewal and confirmation,” so that the denial arose, not for want of equity in its foundation, but- because the British ministry designing to oppress America and slop the settlement of that, “ frontier (too remote to be easily subjugated”) had “ instructed their governour not to grant any lands on the waters of the Mississippi; and a royal proclamation had issued prohibiting all persons from settling on any of those lands, and even requiring those, settled under patents, to remove to the interior parts of the country.”</p> <p>That, in this situation of things, the. company being unable to proceed any further, many people applied to the agent for sales of sundry parts of the land, at the price fixed as aforesaid; and were promised it, if the company should ever be able to make them titles : Otherwise, those, who settled, were to abide the consequences of their settlement •, and, on those terms, great numbers did settle.</p> <p>That, in 1773, the governour and council were instructed to grant lands in the back country to the officers and soldiers in the last war, who were entitled thereto under the king’s proclamation in 1763: “ whereupon some of the said officers attempting to locate their warrants upon old settlements made under contracts of this company, and of other grantees of lands on Greenbrier river, the said Thomas Walker, and brigadier general Andrew Lewis, agent for the Green- . brier company, on behalf of their respective principals rePresented the matter to the governour and council, who, on the 16th day of December, 1773, made the following order, ‘ On consideration of the several petitions of Thomas Walker, in behalf of himself and the other members of the Loial company ; and also of Andrew Lewis, agent for the Green-brier company, praying that the grants made to the officers and soldiers under-his majesty’s proclamation in 1763, may not be suffered to be located so as to interfere with their grants: and also, of the petition of sundry inhabitants settled on those grants to the same purpose; and of the counter petition of Hugh Mercer, ana! sundry other officers, the board were of opinion, and it was accordingly ordered that the officers and soldiers be at liberty to locate their lands wherever they shall desire, so as not to interfere with legal surveys, or actual settlements : That every officer be allowed a distinct survey for every thousand acres ; and that those are to be deemed settlers, who resided on. any tract of land before last October, and continued to do so, having cleared some part thereof, whereby their intention to reside is manifested. And that every settler shall have fifty acres, at least; and, also, for every three acres of cleared land, fifty acres more, and so in proportion, which is to be taken as part of the grants of the said companies respectively, when the land office shall be open to them, unless such settlers shall chuse to hold under the officers and soldiers, or any of them, rather than under the said companies’” That this order, proved, “ that the governour and council considered the grant, to the Loyal company, as then remaining in force; and that a time would come when the land office (then shut up by the royal instructions) would be open to them for confirmation of the whole; and that, in the mean time, they allowed the actual settlers to shelter themselves under the said grants for protecting their settlements, in case they preferred that to a bargain with the officers; which claim, under the company, was obviously to be obtained, of them, upon the terms of paying the price of three pounds per hundred acres, originally fixed thereon, and so it was well understood by all persons concerned.”</p> <p>That in consequence of the last mentioned order of the governour and council, the agent, for the company, surveyed, in 1774 and 1775, the several parcels of land, and for the persons whose names and their respective quantities were contained in a schedule annexed : “ Which surveys the company intended to have returned to the secretary’s office; obtained patents thereupon and conveyed the lands, to the respective persons, upon their paying or securing the consideration money, but the flight of the governour, and subsequent change of government prevented them.”</p> <p>The petition, therefore, prayed for certificates to entitle them to grants for the surveys; that the quantity for each person might be made up 400 acres; that grants for the whole might issue to the agent of the company, to be by him conveyed to each person, upon payment of the purchase money, with the surveyors’ and office fees, and rights (which the company were ready to pay into the treasury); and for general relief.</p> <p>The petition for the Greenbrier company set forth, That by an order of the governour and council (made “pursuant to the form of granting lands in this state) bearing date the 29th day of October, 1751, leave was granted to the said company to take up one hundred thousand acres of land, lying on Greenbrier river north west and west of the Cow-pasture, and Newfoundland, and four years time were allowed them to survey and pay rights for the same, upon return of the plans to the secretary’s office.”</p> <p>That, in execution of the said order, the agent for the company in, and prior to, the year 1754, surveyed and sold, in small parcels, to sundry persons, several tracts of land as per list annexed : At which last mentioned period an invasion of the Indians, in that country, put an end to all further proceedings; and, during that invasion, the proclamation of the king, on the 16th of December, 1773, prohibiting the sett^eraeni’ or grant, of any lands, on the western waters, the further execution of the said order, until the *6th of December, 1773; when the then governour and council considered the grant to the company as still in force, and allowed any settlers, on the Greenbrier lands, to have surveys made under the said order, for the purpose of securing, to themselves, the lands they had settled on : such settlers paying, to the company, the price at which they had sold their other lands formerly surveyed.</p> <p>That, in consequence of the last mentioned order, the company surveyed lands for sundry actual settlers; but as patents had not issued for the same during the existence of the late government, grants could not now b.e obtained, for them, without the aid of the court.</p> <p>The petition therefore prayed, that certificates might be granted pursuant to the act of assembly aforesaid, enabling the petitioners’ agent to procure patents for the lands, and to convey the same to the respective purchasers and settlers according to his contracts; and for further relief,</p>

In March. 1844, George A. Calhoun applied to the Judge of the Circuit court of Augusta county, for an injunction to restrain a sale of slaves under a deed of trust. In his bill he alleged in substance, that in December 1842, he ascertained that he would be compelled to raise a sum of money of over four hundred dollars by the first or second of January 1843.

This was an action of slander in the Circuit court of Augusta county, brought by William Eidson against James Bourland.

A deed of marriage settlement, bearing date the 12th of January 1804, was entered into between Matthew Weatherby of the first part, Jane M’Farland widow of John M’Farland of the second part, and James Crane and Burr Powell of the third part.

<p>The court of appeals had not jurisdiction to award a writ of error to ajudgment of the general court, under the act for adjusting the titles ofclaimers to unpatented lands -.</p> <p>And, therefore, where such a writ had been improvidently granted, it was quashed.</p> <p>The western waters described, by the act of assembly passed in May 1779.</p>

Fowler was convicted of felony in the general court; and obtained a pardon from the governour, of which the following is an extract, viz : “ Whereas John Fowler, late of the parish of Fredericksville, in the county of Albemarle, labourer, was, at a session of the general court holden on the 27th day of April in the “ 1 year of our Lord, one thousand seven hundred and eightyatta'ntec^ felony> and appears to be a proper object of mercy: Now know ye, that I have therefore…

On the 8th of May, 1669, king Charles II. by letters patent reciting 1.

Supersedeas to a judgment of the circuit court of Albemarle. The action was debt, brought by Seoti Sf Fry against James Douglass, William I. Douglass, Thomas M. Douglass, Valentine Head and Thomas Drajfen, upon a note made by James Douglass and indorsed by the other defendants, for 550 dollars, negotiable and payable at the bank of Virginia, which was protested for nonpayment. The note was described as bearing date the 2d of April 1828, and payable thirty days after date.

In May 1828, John Rader was appointed by the County court of Rockingham, the committee of David Homan, a lunatic, and executed a bond with Richard Pickering and David Bowman as his sureties. At the June term of the County court in 1836, on the motion of David Bowman an order was made that John Rader be summoned to appear at the next court to give said Bowman counter security.

Eben Milton declared against Joseph P. Hollingsworth in the county court of Frederick. The declaration contained three counts, all of which were in debt.

This was a bill filed in the Circuit court of Botetourt county by the legatees of John Middleeoff against Jacob Carper, the executor, and John Luster, Absalom C. Dempsey, and others, as his sureties, for the purpose of obtaining a settlement of the executorial account and a distribution of the estate. They charged that the executor was hopelessly insolvent; and they filed as exhibits with their bill certified copies of their testator’s will and the executorial bond.

John Morrow died intestate in the latter part of the year 1819, and Robert Worthington and John T. Coohus obtained letters of administration on his estate from the court of Jefferson county. They entered into bond, together with William, Butler, Daniel Buchles, John Downey and William, Grove, the obligors binding themselves and each of them, their and each of their heirs, executors and administrators, jointly and severally.

This was a forcible entry and detainer in the County court of Fayette, by William T. Mann against Lock-ridge Gwinn and others. The warrant of the justice directed the justices and the jury to be summoned to meet on the 14th of November 1849. Accordingly the justices met and constituted the Court on that day, and then on the motion of the defendants, the cause was continued until the 29 ih of March 1850, to which day the Court was adjourned.

This was a bill filed in the Circuit court of Botetourt county, by William Morgan against William A. Watson, administrator of Robert Tinsley, and his sureties in his official bond, among whom were Bernard Owen and the appellants James S. Allen and Robert Ervine. The bill charged that the complainant had, in 1829, recovered a judgment against Robert Tinsley, in his lifetime, for 1055 dollars 96 cents, with interest from the 28th of January 1823, until paid.

This was an action of debt in the Circuit court of Augusta county, brought upon the following paper : $j 485. One day after date we promise and bind our» selves, our heirs &c. to pay to George Rankin or order the sum of four hundred and eighty-five dollars, for value received. As witness our hands and seals.

This was a writ of right in the Circuit court of Floyd county, brought by Madison B. Helms and others, who sued for John Belden, against Squire Duncan, to recover a tract of land of eight thousand acres. The tenant appeared and filed a plea, by which he defended his right to ninety acres of the land, and pleaded non-tenure as to the remainder.

<p>By deed bearing date the 9th day of July 1838, Thomas A. Fourquorean, an apothecary in the town of Lynchburg, conveyed to David R. Edley his whole stock of goods, and his interest in his mother’s estate, Chancey Steen as his surety in a bond executed to James A. Meriweather, dated the same day with the ' deed, for the sum of 1753 dollars 85 cents, and payable six months after date, and as endorser of Fourquorean upon notes discounted at the banks in Lynchburg for 500 dollars more. This deed was duly admitted to record on the 12th of July. ° ' for the purpose, as stated in the deed, of indemnifying</p> <p>On the day of September 1838, Fourquorean executed another deed to Frederick Isbell, whereby he conveyed the same property in trust to pay, first, certain debts due and notes endorsed by P. & J. W. Dudley; second, a debt due to J. W. Dudley; thirdly, certain notes on which Robert Jennings was endorser, described in the deed as a note for 250 dollars, dated July 12th, 1838, payable sixty days after date, and endorsed by Robert Jennings and Joseph Marsh, another for 150 dollars, dated 5th of July 1838, on which Chancey Steen and Robert Jennings were endorsers, another for 300 dollars dated the 31st of August 1838, endorsed by P. & J. W. Dudley and Robert Jennings, another for 150 dollars dated July 5th, 183R, endorsed by Robert Jennings and Joseph Marsh, a like note for 150 dollars dated 2d August 1838, with the same endorsers, and a note for 100 dollars endorsed by Robert Jennings and held by Michael Hart, and also a bond due Reuben D. Palmer for 1460 dollars, on which Joseph Jennings and Tilden Reed were sureties ; and fourth, to pay Marsh a debt due him of 689 dollars 7 cents. This deed was admitted to record on the 3d of September.</p> <p>The trustee Isbell being about to sell the property conveyed in the deeds, Steen filed his bill in the Circuit court of Lynchburg to enjoin the sale, on the ground of his prior lien under the deed of the 9th of July 1838 to Edley. The injunction was granted, and in the progress of that cause the trust property was sold and deposited in one of the Savings banks in Lynch-burg subject to the order of the Court.</p> <p>Whilst this suit of Steen’s was pending, and previous to January 1844, Jennings had paid off the four notes above mentioned on which he was the first or only endorser ; and Palmer had instituted an action against him in the Circuit court of Halifax county upon the bond for 1460 dollars, mentioned in the deed of trust to Isbell, on which Jennings and Reed were the sureties of Fourquorean; and Reed, as well as Fourquorean, was insolvent. On the 25th of January 1844 Palmer and Robert Jennings, the latter acting by his brother William B. Jennings, entered into an agreement in writing whereby Robert Jennings was to execute his bond with William B. Jennings as his surety, for 500 dollars, payable to Palmer on the 25th of January 1846, with interest from the date of the agreement; to assign to Palmer with recourse to Jennings, the four notes of Fourquorean which Jennings had paid, which were then in the hands of his counsel in Lynchburg; and also to assign to Palmer all his other interest in and to all claims secured to him by the deed of trust executed by Fourquorean to Isbell in 1838 : And Jennings further bound himself to pay all the costs which had accrued in the suit of Palmer against him upon the said bond, except so much as had arisen from the employment of more than one lawyer. And in consideration of this arrangement Palmer agreed to stop the suit as soon as the conditions were complied with; and that the arrangement when complied with, should be in full of the bond of Fourquorean on which Jennings and Reed were sureties. From this paper it appears the bond was executed on the 9th of March 1838, and that 60 dollars had been paid upon it.</p> <p>On the 27th of February 1844, Robert Jennings executed another paper, by which in conformity with the contract of the 25th of January, he assigned to Palmer the four notes aforesaid with recourse to him, and he also assigned to Palmer all his interest in the deed of trust to Isbell, which interest was first to be applied to the payment of the said four notes, and the residue he assigned without recourse.</p> <p>The case of Steen v. Fourquorean others came on to be heard in November 1846, when the Court held that the debt secured by the deed of the 9th day of July 1838 was usurious. A statement of the trust fund under the control of the Court and of the debts secured by the deed to Isbell was then made marked A A, from which it appeared that the fund to be divided among the beneficiaries in that deed amounted on the 12th November to $ 5749 41</p> <p>The debts secured in the first and second class, amounted at the same date, to $ 1127 15</p> <p>The amount of the four notes paid by Jennings, 977 54</p> <p>The amount of the bond due to Palmer, 2174 68</p> <p>These were in the third class specified in the deed.</p> <p>The fourth class consisted of the</p> <p>debt due to Marsh, 1011 91</p> <p>And there was in addition the note endorsed by Steen and Jennings, as to the payment of which it was doubtful whether it was by Steen or Jennings, 223 66</p> <p>5514 94</p> <p>The Court then made a decree, by which the bond claimed by Steen, and the deed of trust to secure it, were directed to be delivered up to be cancelled; and the trust fund was distributed among the beneficiaries in the deed to Isbell, according to, and to the extent of their respective interests; the decree being in favour of Palmer, as the assignee of Jennings, for the sum of 977 dollars 54 cents, the amount of the four notes paid ^ jetm¡ngSj ancj jn favour of Jennings for 2174 dollars gg centS) the amount of the bond of Palmer, and which Jennings had settled with him by the agreement of the 25th of January, and the assignment of the 27th of February 1844.</p> <p>After the decree had been entered, the counsel for Palmer suggested that under the agreement and assignment aforesaid, Palmer was entitled to the decree for the sum of 2174 dollars 68 cents, and that if there was any doubt of Palmer’s right, on the construction of these papers, that Jennings would state that such was the intention of the parties to the agreement; and on his motion the Court suspended the decree in favour of Jennings for thirtv days, in order to give Palmer an opportunity to assert his claim, if any he had, in such mode as he might be advised to adopt.</p> <p>In December 1846, Palmer filed his bill in the Circuit court of Lynchburg, against Jennings and the officer of the Court win. Lad the proceeds of the trust pro-pert}'' in his hands, to enjoin the payment by the officer to Jennings, of the sum of 2174 dollars 68 cents, as directed by the decree in the case of Steen v. Fourquorean & als. In his bill he stated the execution of the bond to him by Fourquorean, Reed and Jennings, and that the whole thereof, except 60 dollars, was due in 1843, at which time the two first named were insolvent ; his suit against Jennings, and the agreement and assignment of January and February 1844; the deeds of trust to Edley and Isbell, and the proceedings in the case of Steen v. Fourquorean others; and he charged that by the agreement and assignment he was entitled to the whole of Jennings’ interest in the trust deed to Isbell; that such was the intention of the parties to the said agreement and assignment, and in pursuance of such intention, Jennings on the 25th of November 1846, gave to the plaintiff an order authorizing him to receive the money. But that nothwithstanding said compromise and assignment Jennings had given notice to the officer not to pay over the money to the plaintiff, and demanded it for himself. The prayer of the bill was for an injunction, and for general relief. The injunction was granted. The order referred to in the bill and which was exhibited with it, bore date the 25th November 1846, and recited that by the agreement of January 1844 it was Jennings’s intention to convey to Reuben D. Palmer all his interest in and to everything coming to him under the deed of trust to Isbell, and then relinquished all the proceeds of said deed of trust in his favour, to said Palmer, and authorized the payment of the same for the benefit of Palmer.</p> <p>Jennings in his answer denied that the agreement and assignment aforesaid was intended to transfer to Palmer so much of his interest in the trust fund as he was entitled to for having satisfied the bond to Palmer, and insisted that there was doubt at the time whether the two notes mentioned in the deed to Isbell on which Jennings was endorser, on one of them after the Dudleys, and on the other after Steen, had been paid by him, the payments made by him having been made by his agent and attorney in Lynchburg, who had collected monies due to him in that place ; and that it was these debts to which the latter branch of the agreement referred ; it being intended to give to Palmer the benefit of the payments if they had been made by Jennings, and only in that eveut. He went into a minute statement of the circumstances under which the paper dated the 25th of November 1846 and filed with the bill was obtained from him. It is unnecessary for the purposes of this report to state the facts. The Court below was of opinion that it was not obtained under such circumstances as vitiated it; and this Court thought it was entitled to no weight in deciding upon the rights of the parties.</p> <p>When the cause came on to be heard, the Court below perpetuated the injunction, and directed the officer in whose hands the trust fund was, to pay to Palmer the sum of 2174 dollars 68 cents, with the accruing interest thereon. From this decree Jennings applied to one of the Judges of this Court for an appeal, which was allowed ; and by consent of parties, the case was sent to the Court at Lewisburg.</p> <p>and turned upon the true construction of the agreement of January, and assignment of February 1844. That question was considered as upon the terms of the writings themselves, and also in connection with the facts appearing in the record.</p>

This was an action of covenant brought by Barnett W. Price against James Via and others in the Circuit court of Patrick county, and removed from thence to the Circuit court of Montgomery. The declaration was upon a covenant by which the parties bound themselves in the penalty of 600 dollars, to submit certain matters in dispute between them to the award of arbitrators, and to abide by their award.

According to the record, the declaration was filed at December rules 1818, for five slaves, the issue of Amy a female conveyed to the plaintiffs in trust, namely, Polly, Wilson, Belphia, Washington and Amy. But there was reason to suppose that in point of fact the suit was originally brought merely for the mother, and that the declaration was afterwards amended so as to embrace the children.

This was a suit instituted in the Circuit court of Monroe county on the 19th of January 1847, by Jane Higginbotham against William Cornwell. In her bill she charged that her late husband, Thomas Higginbotham, had, during their marriage, sold and conveyed to Cornwell a tract of land in the county of Monroe. That she had not united in the deed.

<p>New trial granted, because one of the jurors declared he had misunderstood the testimony, and its application to the law.</p>

This was an action of trespass on the case, brought by William Calhoun against Philip O. Palmer, in the Circuit court of Augusta county.

<p>On a supersedeas to a judgment of a county .court, the circuit court reverses the judgment with costs, hut omits to give such judgment as the county court ought to have given, and retains the cause: Held, this judgment of the circuit court is to be regarded as its final judgment in its appellate character, and a supersedeas will lie thereto from the court of appeals.</p> <p>The case of Norris v. Tomlin &c. 2 Munf. 336. considered to be badly reported, and no authority for the doctrine there laid down.</p> <p>Question as to the competency of a witness, arising under a bill of exceptions, and depending on what should be considered the real state of the case, upon a fair intendment.</p> <p>In an action against the administrator of an intestate’s estate, a distributee is not a competent witness for the defendant, unless he has made a valid release of all his interest in the estate.</p>

<p>In May 1784, the superior court of law, for the district of Edenton, in North Carolina, granted letters testamentary “ to Edward Rice, the executor named in William Savage’s last will and testament; which was proved in open court by the oath of one of the subscribing witnesses; and the executor took the oath of qualification, and returned an inventory of part of the testator’s estate.”</p> <p>At the succeeding term in November, of the same court, “ on the motion of Mr. Johnston, on the affidavit of Mary Draper, suggesting undue practices in procuring the execution of the will of Doctor William Savage, deceased, in his last illness,” it was “ ordered that the probate of a paper purporting to be the last will and testament of Doctor William Savage, deceased, obtained at the last term, be set aside, unless the executors named in the said will shew sufficient cause to the contrary on Monday next.”</p> <p>On the return of the rule, the executors appeared; and “the court having heard and fully understood the allegations and proofs, as well on the part and behalf of the executors, as on the part of Samuel Dickinson, Walter Jones, and William Hood, at whose instance the rule was obtained, and the counsel on both sides being fully heard, are unanimously of opinion, that though it does not appear to the court, that any fraud or imposition was practised in obtaining the said paper purporting to be a will, yet it fully appears, from the evidence and the whole circumstances laid before the court, that the said Savage, at the time of making and executing the said paper, purporting to be a will and testament as aforesaid, from the low state of his mind, at that time, was incapable of making a last will and testament. And therefore, the court doth order, adjudge and decree, that the probate of the said will be revolted, annulled, and . , , , , ... ,. set aside; and the paper purporting to be a will as aioresaid, be considered and declared to be null, void and of no effect.”</p> <p>Whereupon, another will of the said William Savage, deceased, was exhibited by Doctor Samuel Dickinson, one of the executors named in the said will; and there being no subscribing witness to the same, it was proved by the oaths of two witnesses, that the whole of the said will, as well as the signature, was in the handwriting of the said William Savage, deceased; and thereupon, Dickinson qualified as executor, and obtained letters testamentary.</p> <p>In April 1785, Rice exhibited the first named will to the genera] court of Virginia for probate there : which Walter Jones opposed, and produced a copy of the record of the proceedings aforesaid in the court of North Carolina, in support of his opposition to the said probate^; and thereupon the general court made the following order, “ the court here, on hearing what could be alledged by the counsel on both sides, not being advised as to their jurisdiction herein; and being of opinion, that it is a case of difficulty and novelty, do adjourn the same to the court of appeals.”</p>

<p>If the widow does not relinquish the will, within the prescribed period, she is barred from dower in the undevised slaves.</p>

<p>A verbal gift .of slaves to a feme sole, to whose husband upon her subsequent marriage, they were delivered, and by him kept till his death, four years after the marriage, is within the statutes for preventing fraudulent gifts of slaves.</p>

In June 1715, John Taliaferro made his will and devised the residue of his estate to be equally divided between his wife and his seven youngest children, Charles, Robert, Zachary, Richard, William, Sarah and Catharine, the sons being left executors of the will. Charles and Catharine afterwards died in the lifetime of the testator; whereby their shares of the lands and slaves descended to their brother Lawrence, who was the testator’s eldest son and heir at law.

<p>Judges, attornies, witnesses, and suitors are exempt from arrest in civil suits during their attendance at court.</p>

Piclcett brought case in the county court of Henrico, against Herbert Claiborne and William Claiborne, and laid his damages at “ one hundred thousand pounds of inspected crop tobacco of the value of one thousand pounds.” The defendants appeared, but no declaration was filed; and the cause was continued, by consent, until the next term, when judgment was rendered for the plaintiff in the following words, “ and now at this day, to wit, on Tuesday the 6th day of.

This was a proceeding by foreign attachment in the Circuit court of Botetourt county, by John Linkenhoger who sued for the benefit of George W. Carper, against George W. Kelly, as an absent debtor, and John Q,. A. Kelly, a home defendant. The plaintiff charged that George W. Kelly owed him the sum of 100 dollars, due by bond executed the 28th January 1889, and payable on the first of May 1842. That Kelly had removed from the Commonwealth and resided in Georgia.

Error, from a judgment of the court of hustings in Petersburg, in ejectment. The error assigned was, That the declaration did not aver the defendant to be a citizen of the town; and therefore the plaintiff had not brought his case, within the jurisdiction of the court.

This was a proceeding by writ of unlawful detainer in the County court of Lee, in which William Adams was plaintiff and Wilkerson Martin was defendant. On the trial the defendant claimed to hold the land in controversy under a deed from David H. Campbell, administrator with the will annexed of Arthur Campbell, to himself and Joseph P. Bishop, bearing date the 28th November 1844.

Posey was convicted, in the general court, upon an indictment, which charged, that the said John Prick Posey, “on the fifteenth day of July, in the year of our lord one thousand seven hundred and eighty-seven, between the hours of ten and two in the night of the same day, with force and arms, at the parish aforesaid in the county aforesaid, two houses, to wit, a certain house of one William Clayton there situate, and-also, one other certain house, to wit, the common gaol and…

This was an action of assumpsit brought in July 1845, in the Circuit court of Augusta county, by James Bell against John Crawford. There was no question about the debt claimed by the plaintiff from the defendant ; but the contest arose upon a set off relied upon by the defendant, and which was objected to by the plaintiff as being barred by the statute of limitations.

<p>The commonwealth of Virginia having long desired to effect a complete line of transportation from the navigable waters of the Ohio to the city of Richmond, and having with this view constructed certain works on portions of the route, subsequently incorporates a joint stock company to accomplish the object, to which company the works of the commonwealth are, by the terms of the act of incorporation, to be transferred at a specified valuation, and in which company the commonwealth herself becomes a large stockholder. The city of Richmond having been incorporated for municipal purposes, a majority of her citizens qualified to vote for members of the common council desire that the corporate authorities should subscribe for a large number of shares in this joint stock company, and the legislature, in accordance with their desire, pass laws authorizing the common council to make such subscription. By these laws, the common council is authorized to borrow money to effect the object, and to levy, assess and collect such taxes as in their opinion will be necessary for the purpose of paying the interest and redeeming the principal of any loan which may be effected. This authority to borrow money and levy taxes is carried into effect by an ordinance; and under the ordinance the collector takes the property of a citizen, against whose will the laws authorizing the subscription were passed, who refuses to pay the taxes levied under authority of these laws, upon the ground that they are unconstitutional. Held, they are constitutional and valid: dissentiente Brooke, J.</p> <p>The subscribers for shares in the joint stock company not being a body corporate until a certain amount should have been subscribed, that amount is made up in part by a subscription of the bank of Virginia. This subscription is made by virtue of an act of assembly giving to the president and directors of the bank, with the assent of the stockholders in general meeting, authority to make the subscription. It is objected by a citizen of Richmond, that the city has no authority to borrow money or levy taxes to pay her subscription, unless the company has become a body corporate, and that it is not legally incorporated, because its incorporation is effected by the subscription of the bank of Virginia, and the law authorizing that subscription is a violation of the bank charter, and unconstitutional. But Heed, the law giving authority to the bank to subscribe is constitutional, and the subscription valid.</p>

<p>A witness cannot be received to give evidence of the contents of a permit, not proved to have been lost.</p> <p>No appeal lay, from the court of admiralty, upon an interlocutosy decree.</p>

<p>The representatives of two deceased persons cannot be joined in the same action, although the undertaking of the testators might have been joint and several.</p> <p>The want of a plea is fatal, although the jury were sworn to try the issue.</p> <p>The form of the judgment of reversal in such case is not in bar.</p>

This case was before this Court in 1836, and is reported in 7 Leigh 419. That report gives a sufficiently full statement of the case up to the period when that appeal was taken; and the decision of this Court only left open the question whether the sale of the land to Joseph Meeks was necessary.

<p>The constitution of the state of Virginia declares, that the two houses of assembly shall by joint ballot, appoint judges of the supreme court of appeals, and general court, judges in chancery, judges of admiralty, secretary, and the attorney general, to be commissioned by the governour, and continue in office during good behaviour.” Art. xiv. Const. Virg.</p> <p>The act of assembly passed. May 1779, for constituting a court of appeals, declares, that "of chancery, general court, and court of admiralty, shall be judges of the court of appeals, of whom the first shall take precedence, and the second be next in rank, and five of them shall be a sufficient number to constitute the court. Every judge before he exercise this office, shall in that court openly give assurance of fidelity to the commonwealth, and take this oath, You shall swear that you will well and truly serve this commonwealth in the office of a judge of the court of appeals, and that you will do equal right to all manner of people, &/c," Ch. Rev. 102.</p> <p>The act of assembly for constituting a high court of chaneery passed at the October session 1777, directs that the court “ shall consist of three judges, to be chosen from time ^ tjm0 t¡-,e j0jnt ballot of both houses of assembly, and commissioned by the governour, to hold their offices so long as they shall respectively demean themselves well therein, any two of whom may hold a court. Every person so commissioned, before he enters upon the duties of his office, shall in open court take and subscribe the oath of fidelity to this commonwealth, and take the following oath of office : You shall swear, that well and truly you will serve this commonwealth in the office of a judge of the high court of chancery, and that you will do equal right to all manner of people, &c.” Ch. Rev. 66.</p> <p>The act of assembly for establishing the general court, declares that it “ shall consist of five judges, to be chosen by joint ballot of both houses of the general assembly, and commissioned by the governour for the time being, to hold their offices so long as they shall respectively demean themselves well therein, any three of them to be a court; and the said judges shall have precedence in court as they stand in nomination on the ballot, and the person first named shall be called chief justice of such court. Every person so commissioned, before he enters on the duties of his office, shall, in open court, take and subscribe the oath of fidelity to the commonwealth, and take the following oath of office, to wit: You shall swear, that well and truly you will serve this commonwealth in the office of a judge of the general court, and that you will do equal, right to all manner of people, &c.” Ch. Rev. 70.</p> <p>The act of assembly for constituting the court of admiralty, passed at the May session 1779, is as follows, “ JBei it enacted by the general assembly, that the court of admiralty, to consist of three judges, any two of whom are declared to be a sufficient number to constitute a court, shall have jurisdiction, &c. Every future judge of this court shall be chosen by joint ballot of both houses of assembly; and before he enters on the duties of his office, besides taking the oath of fidelity, he shall take the following oath, to be administered by the governour in council: You shall swear, that well and truly you will sene this commonwealth, the in the office of a judge of the court of admiralty; that you will do equal right to all manner of people, &c, The taking of which oath, or the certificate thereof, shall be registered in the said court.”</p> <p>The first meeting of the court of appeals, and the manner of qualifying of the judges thereof under the foregoing acts of assembly was as follows s</p> <p>“ Williamsburg, to wit: At the capitol in the said city, on Monday, the 30th day of August, one thousand seven hundred and seventy-nine: In virtue of an act passed at the last session of general assembly, intituled an act constituting the court of appeals, then and there convened Edmund Pendleton and George Wythe, esquires, two of the judges of the high court of chancery, John Blair, esquire, one of the judges of the general court, and Benjamin Waller', Richard Cary and William Roscow Wilson Curle, esquires, judges of the court of admiralty, and thereupon the oath of fidelity, prescribed by an act, intituled an act prescribing the oath of fidelity, and the oaths of certain public officers, together with the oath of office prescribed by the said act constituting the court of appeals to be taken by every judge of the said court, being first administered by the said George Wythe and John Blair, esquires, to the said Edmund Pendleton, esquire, and then by the said Edmund Pendleton, esquire, to the rest of the judges, the court proceeded to the business before them.”</p> <p>At the next court, “ Present George Wythe, esquire, one of the judges of the high court of chancery, John Blair, esquire, chief justice of the general court, Paul Carrington and Peter Lyons, esquires, two of the judges of the same court, and Benjamin Waller, esquire, one of the judges of the court of admiralty, the said Paul Carrington and Peter Lyons having first taken the oath of fidelity to the commonwealth and the oath of office, which were administered to them by the said George Wythe and John Blair, esquires.”</p> <p>The last recited form was the one always afterwards observed, .when any judge took his seat, who had not before qualified as a judge of -the court of appeals.*</p> <p>At the session of the general assembly, October 1784, an act passed for the establishment of courts of assize; which laid off all the counties of the state into'circuits of I assize, for the purpose of trying all issues made up in the general court; and' enacted thatprevious to the holding of the courts of assize, the court of appeals shall allot and regulate among themselves the court or courts of assize, at each of which two of the judges of the said court of appeals shall attend; which two judges, or in case of failure in either through sickness or other cause to attend, the other of them shall have power to try all issues, and inquire of damages by a jury upon all records to be transmitted to them by the clerk of the general court, and therein to determine all questions about the legality of evidence, and other matters' of law which may arise.” 11 Hen. Stat. 424.</p> <p>That act was suspended by an act passed at the assembly held in October 1785. 12 Hen. Stat. 45; and at the October session 1780. 12 Hen. Stat. 267. In January 1788, it was repealed. 12 Hen. Stat. 497.</p> <p>Upon the 2d January, 1788, an act of assembly passed for establishing district courts; by which it was enacted, “ That four judges shall be elected by joint ballot of both houses of assembly, in addition to the present judges of the general court, who shall also be judges of the court of appeals, and it shall be the duty of the judges of the high court of appeals, ter attend the said courts, allotting among themselves the districts they shall respectively attend, in such manner, as that the judges of the high court of chan' \ eery and admiralty shall attend the district courts to be held at Richmond, Petersburg, Brunswick, Suffolk, Northumberland, King & Queen, Williamsburg and Accomack; the judges of the general court shall attend the district courts to be held at Fredericksburg, Dumfries, Winchester, Charlottesville, Staunton, Monongalia, Prince Edward, New London, at Washington and Montgomery alternately, and at the Sweet Springs, any two of whom shall constitute a court.” 12 Hen. Stat. 535. By the same act it was enacted, that “the court of appeals at their session to be.held in April next, or a majority of them shall appoint a clerk to each of the said district courts.” 12 Hen. Stat. 535.</p> <p>That act was to take effect, after the first day of July, 1788; and the four new judges of the general court were elected under it; but did not qualify until late in that year.</p> <p>The constitutionality of a law directing the judges to perform new services, without additional compensation, had been occasionally discussed by statesmen and others from the first passage of the act for establishing courts of assjze; but, as that act was suspended from time to time, and finally repealed, nothing was said, officially, by the judges, respecting it. Upon the passing of the district court law however, the question was more frequently agitated, and different views taken by those who opposed, and by those who favoured, the act.</p> <p>The first contended, that it. was contrary to the constitution to impose new duties to be performed out of the courts to which the judges respectively belonged ; but clearly so, if no additional compensation was made .them for it. That the new duties assigned were greater than those they had ever been bound to perform in their respective courts; and amounted to an actual amotion' from office, as the labour was greater than most of them could discharge, and would exhaust the salaries of those who were able to go through it. That their services, in the court of appeals, formed no precedent; because they were voluntary, and could not have been required, if the judges, with a view to relieve the state from the necessity of sustaining additional burthens in times of difficulty, had not assented to it; and withal, that those services were comparatively light: but these greater than the length of the majority could bear, or the public justly demand.</p> <p>On the other side, it was insisted, that the tenure of office, which was all that the constitution meant to preserve, was not assailed by the assignment of new duties: which might be imposed whenever the legislature thought proper. That it was preposterous to say, that a judge could never be called upon to perform more services than existed at the time of his appointment, as that would go to a refusal to decide,, in any one year, a greater number of causes than he found upon the docket when he first came into the court, although the progress of society might greatly swell the quantity of business from ordinary causes. That the propriety of making compensation for the additional services would be matter of expediency thereafter; but could not be claimed by the judges as a right. That the judges of the three courts had acted as members of the court of appeals, although that court was constituted subsequent to their own appointment. That their services in the court of appeals were not voluntary; but had always been performed as a duty; and that their acquiescence might be considered as a cotemporaneous exposition of the constitution; which formed a precedent not to be resisted.</p> <p>The court of appeals met at the usual time in April 1788; and proceeded to transact business in the manner they had formerly done. They omitted to appoint clerks for the district courts however; and, before their final adjournment, made the following order, and remonstrance:</p> <p>“ On consideration of a late act of assembly, intituled an act establishing district courts, after several conferences and upon mature deliberation, the court do adjudge that clerks of the said courts ought not now to be appointed for reasons contained in a remonstrance to the general assembly, in the words following, to wit:</p> <p>“ To the honourable the speakers and other members of the senate and house of delegates of the commonwealth of Virginia, in general assembly, ></p> <p>“the respectful remonstrance of the court of</p> <p>APPEALS.</p> <p>“ The remonstrants finding themselves called upon by a late act of the general assembly, intituled an act establishing district courts, to proceed at this session to the appointment of clerks to the said courts, that whole act was necessarily brought into their view; in considering which they encountered many difficulties of an ordinary nature, such as, whether their power of appointing now, though directed by the second section, was not controlled by the 116th, declaring that the act should take effect and be in force from and after the first day of July, in the year 1788, and not before 5 whether the district courts have jurisdiction of any suits now depending in the general court of above £ 30 value : whether any, and what provision was made for the trial of criminals who might remain in the public jail, after the session of the general court in June next, or who might be examined and committed prior to the said first day of July: And whether, for want of precision in several other parts of the law, it was in the respective cases to operate from the time of passing, or from the first day of July. (In other instances, particularly in the construction of the late execution law, regularly brought before the court this term, they have to lament the last difficulty, which they found so great, that nothing but the repose of the community, and necessity of having one uniform system in that respect could have induced the court to decide upon it, at least without further consideration.)</p> <p>“But in the progress of their discussion, they found it unavoidable to consider more important questions, viz: Whether the principles of this act do not violate those of the constitution or form of government, which the people in 1776, when the former bands of their society were dissolved, established as the foundation of that government, which they judged necessary for the preservation of their persons and property ? and, if such violation were apparent, whether they had power, and it was their duty to declare that the ^ yigjy f0 ¿¡lf> constitution ?</p> <p>“And here they have again to lament, that there should be occasion to decide those important questions in any case, especially at a time when the minds of the citizens are agitated upon other questions of great and national concern, more so, that the necessity should occur in a case wherein their individual interests are involved, and still more, that a decision one way might suspend, though for a short time, the beneficial effects of a law tending to promote the speedy and easy administration of justice.</p> <p>“ On this view of the subject, the following alternatives presented themselves to the court: Either to decide those questions; Or resign their offices. The latter would have been their choice, if they could have considered the questions as affecting their individual interests only; but viewing them as relating to their office, and finding themselves called by their country to sustain an important post as one of the three pillars on which the great fabric of government was erected, they judged that a resignation would subject them to the reproach of deserting their station, and betraying the sacred interests of society entrusted with them; and, on that ground, found themselves obliged to decide, however their delicacy might be wounded, or whatever temporary inconveniences might ensue, and in that decision to declare, that the constitution and the act are in opposition and cannot exist together; and that the former must control the operation of the latter. If this opinion, declaring the supremacy of the constitution, needed any support, it may be found in the opinion of the legislature themselves, who have, in several instances, considered the constitution as prescribing limits to their powers, as well as to those of the other departments of government.</p> <p>“ In forming their judgment upon both questions, they had recourse to that article in the declaration of rights, that no free government, or the blessing of liberty can be preserved to any people but (among other things) by frequent recurrence to fundamental principles j an article worthy to be written in letters of gold. The propriety and necessity of the independence of the judges is evident in reason and, the nature of their office; since they are to decide between government and the people, as well as between contending citizens; and, if they be dependent on either, corrupt influence may be apprehended, sacrificing the innocent to popular prejudice; and subjecting the poor to oppression and persecution by the rich. And this applies more forcibly, to exclude a dependence on the legislature ; a branch, of whom, in cases of impeachment, is itself a party.</p> <p>“ This principle supposed, the court are led to consider, whether the people have secured, or departed from it, in the constitution, or form of government. In that solemn act, they discover the people distributing the governmental powers into three great branches, legislative, executive and judiciary, in order to preserve that equipoise, which they judged necessary to secure their liberty, declaring that those powers be kept separate and distinct from each other, and that no person shall exercise at the same time an office in more than one of them. The independence of the two former could not be admitted, because in them a long continuance in office might be dangerous to liberty, and therefore they provided for a change, by frequent elections at stated periods; but in the last, from the principle before observed upon, they declared, that the judges should hold their offices during good behaviour. Their independence would have been rendered complete, by fixing the quantum of their salaries, which perhaps would have been done, if the duties of their office had been, at that time, ascertained. But although it was not then done, yet in respect to this, the constitution gives a principle, not to be departed from, declaring that the salaries shall be adequate and fixed, leaving it to the legislature to judge what would be adequate when they should appoint the duties. And when they had so done, they exercised their whole power over the subject, and the salary was thenceforth to be considered as fixed, while the duties should continue the same, and when public . . ,. , , , utility should require an increase or diminution ot duty, there should be an analogous alteration of salary, with this restriction however, that such regulation should not blend the duties of the judges of the general court, court of chancery and court of admiralty, which the constitution seems to require to be exercised by distinct persons; and the legislature appear to have so considered it, in the arrangement of those courts.</p> <p>“ The court of appeals, of whomsoever constituted, must necessarily act upon the subjects referred to all the others; and therefore the forming it, so as to consist of all the judges, is no violation of the constitution; and that mode, assimilated to adjournments of cases before all the judges of England in the exchequer chamber, may have been dictated by necessity.</p> <p>“ The court then proceeded to consider what had been done, by the legislature, in consequence of the constitution. In the October session of 1777, they passed two acts, organizing the general court and court of chancery, giving to the former jurisdiction at common law, in civil cases, as well as criminal; and, to the latter, jurisdiction in all cases in equity. The duties of each were distinctly pointed out, and a salary of £ 500 to each judge was thought, by the legislature, to be an adequate reward for those duties; and this previous to the appointment of any judges. The election of the judges followed, when four of those, at present, in office, were of the number elected; who thinking, as they still think, the salary was adequate to the services, declined other pursuits, and accepted their appointments, under a confidence that the constitution would entitle them to that salary, so long as they should perform the duty in an upright manner. The nominal sum they conceived was to be paid them in specie, or in something equivalent thereto, and they have reason to believe that the legislature so understood it, from laws in force at that period, making it penal to demand an allowance for the difference between specie and paper-money. And though the other judges have been called into duty by subsequent appointments,tiie they may be supposed to stand upon the same ground of original compact. The court of admiralty, indeed, was not permanently constituted, until the year 1779, and the judges then appointed; yet, by being made judges of the court of appeals, they have fever since been put upon the same footing, with their brethren, in point of salary. The various substitutions of paper money and tobacco for specie, which was not to be had, the judges considered as temporary expedients, which, though operating greatly to the diminution of their salaries, were not designed to affect their independence, and therefore they acquiesced, content to share in the public calamities, in hopes of a recurrence to the constitutional principle in better times. And they considered in the same light the act of 1781, stating the salary at £ 300, as dictated by necessity, and not proceeding from design; and therefore did not conceive it to be their official duty to interpose.</p> <p>“ But the act now under consideration presenting a system, which assigns, to the judges of the chancery and admiralty, jurisdiction in common law cases : which so far may be considered as a new office, the labour of which would greatly exceed that of the former : without a correspondent reward; and to the judges of the general court, duties, which, though not changed as to their subjects, are yet more than doubled, without any increase of salary, appeared so evident an attack upon the independency of the judges, that they thought it inconsistent with a conscientious discharge of their duty to pass it over. For vain would be the precautions of the founders of our government to secure liberty, if the legislature, though restrained from changing the tenure of judicial offices, are at liberty to compel a resignation by reducing salaries to a copper, or by making it a part of the official duty to become hewers of wood, and drawers of water" ®r, case of a contrary disposition, they can make salaries exorbitant; or, by lessening the duties, render offices, almost, sinecures: the independence of the iu- - 1 d diciary is, m either case, equally annihilated.</p> <p>“The court, however, willing to hope, that in the present instance, the legislature had no such design; but that inattention, or some other circumstances might occasion the deviation, and that, upon a revision of the subject, this law will be placed upon unexceptionable ground, had only to consider what ought to be their conduct in the mean time. The result of which was, that they ought not to do any thing officially in execution of an act which appeared to be contrary to the spirit of the constitution; and therefore they declined to. appoint the clerks of the district courts, under the said acts.</p> <p>“To obviate a possible objection, that the court, while they are maintaining the independency of the judiciary, are countenancing encroachments of that branch upon the department of others, and assuming a right to control the legislature, it may be observed, that when they decide between an act of the people, and an act of the legislature, they are ivithin the line of their duty, declaring what the law is, and siot making a new law. And ever disposed to maintain harmony with other members of government, so necessary to promote the happiness of society, they most sincerely wish, that the present infraction of the constitution may be remedied by the legislature themselves; and thereby all further uneasiness on the occasion be prevented. But should their wishes be disappointed by the event, they see no other alternative for a decision between the legislature and judiciary, than an appeal to the people, whose servants both are; and- for whose sakes both were created, and who may exercise their original and supreme power, whenever they think proper. To that tribunal, therefore, the court, in that case, commit themselves, conscious of perfect integrity, in their intentions, however they may have been mistaken in their judgment.”</p> <p>“ It is ordered that the president of the court do deliver the said remonstrance to his excellency the governour, with a request that he will be pleased to lay the same before the ^ , ,, . . „ general assembly, at their first session.</p> <p>In consequence of the foregoing remonstrance, an act of assembly passed on the 22d December, 1788, for establishing district courts, and for regulating the general court; which enacted that “Three judges shall be elected by joint ballot of both houses of assembly, in addition to the present nine judges of the general court. And it shall be the duty of the judges of the general court to attend the district courts, allotting among themselves half yearly, the districts they shall respectively attend at the succeeding terms thereof: Two to each court, who shall be judges of the court to which they shall be allotted, &c.” 12 Hen. Stat. 733. And in another section, it enacts, that “ Those cases in which the court of admiralty hath jurisdiction by law, and which are not taken away by the constitution of the United States, are hereby transferred to the district courts, to be proceeded on as the law requires in the said court of admiralty. 12 Hen. Stat. 736.</p> <p>Under this law, the three judges of the court of admiralty, were elected judges of the general court.</p> <p>On the same 22d December, 1788, an act of assembly passed for amending the act, intituled an act constituting the court of appeals, which enacts, “ That the court of appeals shall consist of five judges, who shall be chosen from time to time, by the joint ballot of both houses of assernbly, shall be commissioned by the governour, and shall, respectively, continue in office during good behaviour.” 12 Hen. Stat. 764. But it made no provision relative to the existing judges of the court of appeals. It directed, however, that “ nothing in this act contained shall be construed in any manner to affect any suits now depending before the said court, or any decree, judgment, sentence or order hitherto given therein; but the same shall remain as if this act had never been made : Provided, always, That the suits now depending before the said court, shall be finally decided by the court of appeals, as it is now constituted by law. For which purpose they shall hold a term at the capitol in the city'of Rich-mood, on the 2d day of March next, and shall sit until the same shall be concluded. If, however, the court of appeals gpap jt advjSeable from any reason, which may prevent an immediate decision, to adjourn to another day, it shall be lawful for them so to do. But the adjournment of the said court, for the purpose of finishing the old business, shall not affect or retard the jurisdiction of the said court, as it shall stand under this act. The judges of the court of appeals, appointed under this act, may take the oath of fidelity and of office, before the executive, or any justice of the peace, a certificate whereof shall be recorded in the said court.”</p> <p>On the 24th December, 1788, two of the judges of the court of chancery, and three of the judges of the general court were elected judges of the court'of appeals under the last mentioned law; and were commissioned by the governour on the 31st December, 1788; but did not qualify as such, until after the month of March in the following year.</p> <p>On the same 22d December, 17S8, another act of assembly passed, for amending the several acts of the general assembly, concerning the high court of chancery: which enacts, “ That as soon as a sufficient number of vacancies shall take place, to permit the reduction of the present number of judges in the high court of chancery, the said court shall consist of one, who shall either be one of the present judges, or shall be chosen from time to time, by the joint ballot of both houses of assembly, shall be commissioned by the governour, and shall continue in office during good behaviour.” 12 Hen. Stat. 766.</p> <p>Neither of those laws increase the salaries of the judges. The three judges of the high court of chancery, four of the judges of the general court, and two of the judges of the court of admiralty, met in the capitol in the city of Richmond, as a court of appeals, in March 1789, under the old law; and made the following order, which they all signed :</p> <p>“ The court, considering that the right of several of the judges to sit, is at least doubtful, on account of a resignation by one of his seat in the court of chancery, of the qualification of another, under his commission as a judge of the new court of appeals, of the declared intention of others to accept their new appointment, and of the want of a fication by the last appointed judges of the general court under that commission, are of opinion, that it is adviseable to decline proceeding on the docket. But before the close of their session, they conceive (however painful the repetition) that they are again under an indispensable obligation to advert to an act of assembly which they are constrained to consider as incompatible with their independence. The act intended is an act of the last session for amending the act intituled an act constituting the court of appeals. The direct operation of this law is the amotion from office of the whole bench of judges of appeals, and the appointment of new judges to the same court. But although the office of a judge of the former court of appeals was, in the mode of election, as established by the act of 1779, accessory and appendant to an office in one of the superior courts j yet, a judge of this supreme court, properly invested, was by the constitution intended to be equally independent, and equally secure in the enjoyment of that office, as of the office of judge of one of the superior courts to which it was annexed, and therefore could not be constitutionally deprived of it. It appears to the court probable,, that the general assembly were so much engrossed by the idea of the utility of their great object, the establishment of district courts, as either to have overlooked this difficulty, which stood in their way, or, if they perceived it, to have counted on the acquiescence of those whose rights were thus to be invaded; and in this expectation (if it was indeed intended) the legislature were not deceived: This court is truly willing to make any voluntary sacrifice for the attainment of so desirable an object as the establishment of courts, which by the expeditious administration of justice, will not only give that relief to suffering creditors, which has already been too long withheld from them, but contribute much to the increase of industry, and improvement of the morals of the people. Yet whatever concessions this court may be willing to make, they think it their duty to guard against en- . croachment.</p> <p>“And in conformity to these sentiments, after solemnly protesting against every invasion of the judiciary establishments, or any deprivation of office in that line in any other mode than as pointed out in the constitution, they do hereby of their mere free will, in order to make way for the operation of the salutary system lately adopted, resign their' appointments.as judges of the court of appeals; and as they do not hold any separate commission for that office, which might be returned, do order the same to be recorded.”</p> <p>On the 20th of June, 1789, the five judges of the court of appeals, appointed under the act of the 22d December, 1788, met according to law, and proceeded to business.</p> <p>In October Í792, upon the revisal of the laws, an act of assembly passed, for reducing into one act the several acts concerning the court of appeals: which enacts, “ that the court of appeals shall consist of five judges, to be chosen and commissioned in the manner directed by the constitution of this commonwealth. Any three of the said judges shall constitute a court, &c. Every judge, before he exercises his office, shall in open court give assurance of fidelity to the commonwealth, and take this oath, ‘ You shall swear that you will well and truly serve the commonwealth in the office of a fudge of the court of appeals, and that you will do equal right to all manner of people, &c.’” 13 Hen. Stat. 405.</p> <p>No new judges were chosen under this act; but the judges who were in office under the act of the 22d December, 1788, met in April 1793; and held a conference, whether they should proceed to business.</p> <p>On the next day, Pendleton, President, informed the bar, that the judges had conferred together, and had determined to proceed to business; for, as they held their offices under the constitution, the new law could not have taken them away, had it even been intended; but they were satistied, that it was not the intention of the legislature to deprive them. However, that the other officers of the who were not in under the constitution, must be reappointed.</p>

Some time in the year 1836 Mary Crafton died, having first made her will which was admitted to probat in the Circuit court of Franklin county. No executor being named in the will, Tyree G. Newbill qualified as administrator with the will annexed, and entered into a bond in the penalty of 7000 dollars, with Wiley P. Woods and Joseph Rives as his sureties.

<p>1. A deed executed bona fide to secure a loan of money, not to be enforced for ten years, is a valid deed as against creditors of the grantor.</p> <p>2. A deed which conveys without a schedule, household furniture, the various kinds of stock on a farm, bacon and lard, to secure a bona fide debt, but not to be enforced for eighteen months after its execution, is valid against creditors, though the deed was made without the knowledge of the creditor, and the grantor was indebted to insolvency at the time of the conveyance.</p> <p>3. A deed which conveys land to secure a bona fide debt, which is not to be enforced for two years, and only then or afterwards upon a notice of the sale for one hundred and twenty days, is valid against creditors.</p> <p>A. Such a deed is valid though the execution of the deed is postponed for five years from the date of the conveyance; and the rents and profits of the property in the meantime, is reserved to the grantor.</p> <p>5. A deed which conveys future rents and profits of property conveyed in other deeds, which were reserved to the grantor in the previous deeds, for the purpose of paying a bona fide debt, is valid against creditors of the grantor.</p> <p>6. A vendor of land retains the title in accordance with the contract, He has a lien on the land for the purchase money, as against creditors or incumbrancers of the vendee; and this though the vendee has subsequently executed a deed by which he conveys other property to secure the purchase money.</p> <p>7. A postnuptial settlement made by a husband on his wife, of personal property derived from her father’s estate, but of which he retains possession, not having been properly recorded, is void as against the creditors of the husband.</p> <p>8. A deed made by a husband embarrassed at the time, by which he conveys the proceeds of his wife’s land which had been sold, and the note for the purchase money made to him, in trust for himself and his wife for their lives and the life of the survivor, and during his life to be under his control and management, is voluntary and fraudulent as to creditors.</p> <p>9. A deed which conveys land to secure a bona fide debt due to the grantee, and also a debt to the grantor’s wife, which is voluntary and fraudulent as to his creditors, and the nature of which debt is known to the grantee, is null and void as a security for the first as well as the last mentioned debt, as against subsequent incumbrancers and creditors of the grantor.</p> <p>10. The declarations of a wife at the time she executes a deed or at other times, that she has executed or does execute the deed because her husband had promised that he would settle or because he had settled upon her certain property derived from her father’s estate is not sufficient evidence of a contract between them for such a settlement in consideration of her relinquishment of her right of dower in her husband’s land, and thus to support such settlement if made, against creditors or incumbrancers, even to the extent of a reasonable compensation for the right of dower which she relinquished.</p> <p>11. There being several deeds, conveying in succession the same property, and not merely the equity of redemption therein, every successive incumbrance binds all the property not absorbed in satisfaction of the previous valid incumbrances. And if some of the incumbrances are declared void at the suit of a creditor of the grantor, such creditor is not entitled to have his debt substituted in the place of such void incumbrance to the extent thereof; but the subsequent valid incumbrancers have preference.</p> <p>12. Property covered by various deeds of trust which may be enforced at different periods, having been sequestrated at the suit of a judgment creditor of the grantor; when the Court disposes of the trust subjects and the rents and profits thereof, the creditor will only be entitled to the rents and profits of the different trust subjects up to the earliest period when either of the valid incumbrances covering such subject was authorized to be enforced. And the different incumbrancers will each be entitled to the rents and profits of the subject covered by his deed from the time he was authorized by the terms of the deed to enforce it.</p> <p>13. The wife of the grantor not having joined in the first deed conveying land to secure a debt; but uniting in a second deed conveying the same land to secure another creditor, the second incumbrancer is entitled to the value of the wife’s contingent right of dower in the land, to be paid out of its proceeds, as against and in preference to the first incumbrancer.</p> <p>14. Quaere. If the wife’s relinquishment of her contingent right of dower in land, where there is no complete alienation of the estate by the husband, but a mere incumbrance given for the security of a debt, constitutes a sufficient consideration for a settlement on the wife.</p>

<p>The clerk was not authorized, after the act of the 4th of January, 1788, to endorse, upon a writ of fieri facias issued on a judgment obtained upon a forthcoming bond, before that day, that no security was to be taken.</p>

<p>The clerk had no authority to endorse upon a writ of fieri facias issued on a judgment obtained upon a forthcoming bond in April 1788, that no security should he taken.</p>

<p>By the act of assembly, passed at the October session 1782, intituled an act to amend and reduce the several acts of assembly for ascertaining certain taxes and duties, and for establishing a permanent revenue into one act,' it is enacted, “ That on all vessels at entrance or clearance from, or to, foreign ports, or from, or to, any of the United States, vessels of war excepted, there shall be paid, by the master or owner thereof, the duty of one shilling and three pence per ton, to the collector of duties at the port or ports established, or to be established, for the entrance and clearance of such vessels; and for every gallon of rum, brandy and other distilled spirits, and for every gallon of wine, which shall be imported, or brought into this commonwealth, either by land or water, from any port or place whatsoever, the duty or custom of four pence, which shall be paid by the owner or importer of the same; and for every hundred pounds of sugar which shall be brought or imported into this commonwealth as aforesaid from any port or place whatsoever, the duty or custom of four shillings and two pence$ and for every pound of coffee which shall be imported, or brought into this commonwealth as aforesaid, from any port or place whatsoever, the duty of one penny; and for all other goods or merchandize which shall he imported or brought into this commonwealth as aforesaid, from any port or place whatsoever, the duty of one per centum ad valorem on the amount per invoice of such goods and merchandize; all of which said duties shall be paid by the owner or importer of any of the articles or merchandize above mentioned. And it is further enacted that the master or purser of every ship or other vessel, importing any goods, wares or merchandize liable to a duty, by virtue of this act, to any port.or place within this commonwealth, shall, within forty-eight hours after his' arrival, make a true and just report, upon oath, with the collector of the duties in the said port or place, of the burthen, contents and loading of such ship or vessel, with the particular marks and numbers of every cask or package whatsoever therein laden with spirits, wine, sugar, coffee and other merchandize, to whom consigned to the best of his knowledge; and also where and in what port the same were laden and taken on board, upon penalty of forfeiting three hundred pounds current money, recoverable on information in any court within this commonwealth, who shall thereupon enter judgment, and award execution for the same, to be applied, one moiety to the use of the informer, and the other to the use of the commonwealth. And it is further enacted, that no spirits, wine, sugar, coffee, or other merchandize, liable to the said duties, imported or brought into this commonwealth by water, by any person or persons whatsoever, shall be landed or put on shore, until due entry thereof with the collector of the duties in such port or place, and a true account of the marks and numbers of every cask and package as aforesaid, at that port or place where the same was shipped or taken on board, given on oath before the collector, who shall certify the same upon the back of the original invoice, or a true copy thereof, to him produced; and thereupon such importer paying the duties laid by this act, or securing the payment thereof within' six months, shall obtain a permit, under the hand of such collector, for the landing and' delivery of the same: and all spirits, wine, sugar, coffee, or other merchandize, landed, put on shore or delivered, contrary to the true intent and meaning of this act, or the value thereof, shall be forfeited and lost, and may be seized or recovered by the said collector of the port or place, where the same shall be put on shore, or delivered, or by any other person or persons whatsoever. And it is further enacted, that if any person or persons whatsoever shall willingly make a false entry, and be thereof convicted, such person or persons shall forfeit and pay one hundred pounds current money, and also forfeit the goods, recoverable on information in any court within this commonwealth, who shall thereupon enter judgment and award execution for the same, to be applied, one moiety to the use of the informer, and the other to the use of the commonwealth.”</p> <p>By the act of May session 1784, which refers to the last act, and is intituled ‘ an act for imposing an additional duty of one and a half per centum on certain goods, wares and merchandizes,’ it is'enacted, “that an additional duty of one and a half per centum ad valorem, be paid on all goods, wares and merchandizes, which are subject to a duty of one per cent, by the act herein before recited ; which said duty of one and a half per cent, shall be paid by the owner or importer of any such goods, wares and merchandizes, and shall be collected and accounted for under the same regulations and penalties as are provided by the said recited act for the one per cent, aforesaid.”</p> <p>By the act of October session 1785, entitled an act for better securing the revenue arising from customs,’ it is declared, “ that whereas many frauds have been practised and committed, by the owners or commanders of vessels trading to this commonwealth by their failing to enter the same according to law, whereby great loss has resulted to the public on the duties payable on goods, wares and merchandize; for remedy whereof in future, it is enacted, that if the owner or commanding officer of any vessel, trading to this state, shall fail to enter the same together with her cargo, in the manner prescribed by law, and pay or secure to be paid the duties arising thereon, such vessel, together with her rigging, tackle, apparel and furniture, and such part of the cargo as shall not have been duly entered, shall be liable to be seized by any person or persons who shall detect such vessel, to be prosecuted and condemned before the court of admiralty, one half to the use of the informer, and the other half to the use of the commonwealth.”</p> <p>Under the foregoing acts of assembly, Christopher Roan, in May 1786, as well on behalf of himself as of the comrnonwealth, filed a libel, in the court of admiralty, against the brigantine Little Nancy, Nathaniel Bentley, master,' charging that the master of the vessel laden with goods, bricks, a chariot and harness, and other wares, and merchandizes, arrived from Philadelphia at Norfolk about the 20th of April, 1786, and made a false entry, by concealing the chariot and harness, and secretly landing part of her cargo, without paying, or securing the duties.</p> <p>The answer of Bentley states that the vessel belongs to William Pennock and company, citizens of Virginia. That she left this state in December 1785, and returned to, and entered at Norfolk, on the said 20th day of April, 1786. That the chariot and harness were not entered; but denies that' the failure subjects the vessel and the chariot and harness to forfeiture.</p> <p>There was a general replication to the answer : And the jury, upon the trial of the issue, found a special verdict; which the court set aside for uncertainty, and awarded a new trial.</p> <p>. Upon the second trial, the verdict found, that the respondent imported into this commonwealth, the chariot and harness, as charged in the libel; but did not enter the same with any custom house officer within the state, nor pay, or secure the duties thereon : and that if the law was for the libellant, then they found the brigantine, chariot and harness, for him : but otherwise they found for the respondent.</p> <p>The court, upon the last mentioned verdict, condemned the brigantine, chariot and harness, as forfeited : and from that sentence, the respondent appealed to the court of appeals.</p>

In June 1786, William. Gatewood filed a libel in the court ■of admiralty, against the brigantine Molly, Robert Fairclough, master, and her lading, consisting of various articles, for a breach of the state revenue laws of that period, charging that the master imported in the said vessel, from Liverpool, Great Britain, sundry merchandize, without making a true report to the naval officer at Tappahannock, where the vessel arrived; but, on the 19th of May, 1786, made a false…

<p>(Absent Tucker, P.)</p> <p>A deed for the conveyance of land, purporting to be made by A. attorney in fact for B. witnesses “ that the said attorney in fact, A. for and in consideration &c. doth release and quitclaim &c.” and concludes, “ in testimony whereof the said B. hath hereunto set his hand and seal,” but is signed with the name of A. (not styled attorney) a scroll being annexed to the signature: Held, this is not the deed of B. and does not convey his title to the land.</p> <p>Where land is sold and conveyed, and subsequently, an adversary claim being set up by a third person, the vendor repays the purchase money to the vendee, and receives a reconveyance of the land, the transaction is not in violation of the act against conveying or taking pretensed titles: per. Cabell and Brockenbrough, J.</p>

John F. May brought an action of assumpsit in the superiors court of law for Chesterfield county, against Peter F. Boisseau. The declaration contained six counts.

This was an action brought in the Circuit court of Cumberland county by John E. Wadsworth, Daniel B. Turner and George S. Palmer, surviving partners of themselves and Orren Williams, late merchants and partners doing business under the name of Wadsworth, Williams and Co. against Charles B. Allen and William Phaup. The declaration counted on the following letter of credit: Raines’ Tavern, October 27th, 1840. Messrs. Wadsworth ip Williams, Richmond.

On the 24th of June 1828 John Myrick instituted a suit in the late District court of chancery at Richmond against William D. Epes and others, the creditors of Epes. The bill was filed at the following August rules, and charged that at the September term of the Superior court of Nottoway county, in the year 1827, he recovered a judgment against Epes for 1160 dollars 1 cent, with interest thereon from the 12th of May 1827, and 7 dollars 51 cents costs.

Upon the 29th of October, 1751, an order of council was made, granting to Thomas JYelson and others, members of the Greenbrier company, leave to take up 100,000 acres of land on Greenbrier river, north-west and west of the Cowpasture and Newfoundland; and four years were allowed them to survey and pay rights for the same, upon return of the plans to the secretary’s office.

<p>If there be three defendants in ejectment, who appear at different times; the first pleads, and, as to him, issue is joined: the second is admitted a defendant, but does not plead: the third pleads, but no issue is joined: and in this slate, the cause is tried, and verdict and judgment be given for the plaintiff, it is not error, notwithstanding there was no plea for the second defendant, nor issue as to the third; for their rights remain untouched, and may be tried when issues are made up as to them.</p> <p>In ejectment, it is competent to the defendant, to give in evidence that the patent, under which the plaintiff claims, was obtained contrary to law, although upon the face, it appears to have been regularly issued.</p>

Supersedeas-to a judgment of the circuit court of Hanover. The action was debt by Moses White against Richard H. Johnson executor of Bailey S. Johnson, upon a penal bill; and the defendant pleaded, payment.

<p>A. furnishes money to B. to purchase a tract of land for A. B. and C. If B. fails to make the purchase, it is a breach of the contract, to be redressed by a suit upon the contract; and the right of action accrues from the failure to purchase.</p> <p>If the act of limitations be pleaded, the jury ought to find that the defendant assumed within five years next before the suit was commenced; or the whole issue is not found, and a new trial will be awarded.</p> <p>If the evidence differs from the statement in the declaration, judgment of nonsuit will be given by the court of error; and the cause will not be sent back to the court below with a direction to call the plaintiff, or to instruct the jury that the evidence does not support the declaration.</p>

<p>Archibald Robertson, executor of James Brown late sheriff of Amherst county, gave two notices to Allen Talbot late deputy sheriff of that county, and his sureties, that he would move for judgments against them.</p> <p>By one of these notices the plaintiff claimed to recover the sum of 131 dollars 21 cents, with damages at the rate of 15 per centum per annum from the 25th of May 1824 till paid, and 4'dollars 86 cents costs, being the amount of a judgment rendered against the plaintiff as executor of Brown, in favour of C. P. Taliaferro, for the failure of Talbot the deputy of Brown to pay over the amount of an execution, levied by the deputy, which issued for Taliaferro against Hugh Taggart and others; and likewise claimed to recover the sum of 48 dollars 76 cents with legal interest from the 7th day of September 1823 tilhjpaid, and 5 dollars 86 cents, and 4 dollars 86 cents costs, being the amount of a judgment rendered against the plaintiff as executor of Brown for the failure of Talbot to pay over the amount of a fieri facias which issued in favour of Warner’s ex’ors against Hudson and others.</p> <p>By the other notice the plaintiff claimed to recover the sum of 46 dollars 77 cents, with damages at the rate of 15 per centum per annum, from the 1st day of November 1824 till paid, and 5 dollars 20 cents costs, being the amount of a judgment recovered against the plaintiff as the executor of Brown, by W. W. Hening clerk of the chancery court of Richmond, for fees of office collected by Talbot as deputy of Brown.</p> <p>These notices were given under the statute, 1 Rev. Code, ch. 78. § 33. p. 283.*</p> <p>The deaths of Talbot the deputy and two of his sureties were suggested pending the motions, and the cases were proceeded in against M'Daniel and other surviving sureties. The circuit court of Amherst gave judgment for the plaintiff in each case, according to the notice.</p> <p>To these judgments M’Daniel and the other surviving sureties obtained writs of supersedeas, assigning for error that the judgments against them should have been for the aggregate amounts recovered against the plaintiff (principal, damages or interest, and costs) instead of being given with running damages or interest, from the date of the judgment recovered against the plaintiff, till the judgment for him should be discharged.</p>

John Pigg died in 1816, having first duly made his will, which was admitted to record in the County court of Pittsylvania. He left a widow and six children, all of whom were infants. Mrs. Pigg qualified as executrix of the will, with James Adams, Samuel Calland, Nathan Hutcherson, James Hart and Clement Pigg, as her securities.

David Ross &f Company declared against Browne in his own right upon the following bond: “ Know all men by these presents, that I, William Browne, of Surry county, executor of William Browne deceased, am held and firmly bound unto David Ross 8f Company in the just and full sum, &tc.” without naming any day of payment in the penalty, which bore date the 17th day of December, 1787.

By deed made the 7th of October 1794, between Robert Bolling of the one part, and the mayor, aldermen and commonalty of the town of Petersburg of the other part, Bolling, in consideration of five shillings expressed to be paid him by the said mayor, aldermen and commonalty, and also for the other considerations, covenants and agreements aftermentioned,&emdash;granted, bargained and sold to the said major, aldermen and commonalty,* “for the use of the said town, a piece,…

In January 1811 George Ott leased from Miles King a lot on Main street in Norfolk, for a term of twelve years, to commence from the 31st of March 1811. Ott covenanted to build on this lot a good brick house, and to pay an annual rent of 220 dollars.

The note, upon which this suit was brought, was for payment of £ 300, with interest from the date; and the declaration was for £ 300, without saying any thing about interest. The defendant pleaded payment, and the plaintiff took issue. At a subsequent term, the defendant’s attorney withdrew the plea, and the court entered judgment for the £ 300, with interest from the date of the note. The defendant appealed to this court.

Gregory brought an action of slander against Tabb* The declaration stated, that the plaintiff was'a candidate for the house of delegates; and that the defendant, in order to disappoint his election, spoke the words in the presence of the freeholders and others of the county. The defendant justified as to some of the words, and pleaded not guilty as to the rest. General replication to the whole plea, and issue.

A party having obtained an injunction to a judgment at law upon the usual condition of a release of errors, omits to execute the release. Pending the injunction suit, he obtains a supersedeas to the judgment at law, but does not perfect the appeal by giving the security. There are repeated applications by him for a renewal of the supersedeas, which are granted, but he does not perfect the appeal.

<p>If the defendant, after issue joined, remove the suit by habeas corpus, into a superior court, the plaintiff may declare anew, in the superior court.</p>

By the act of assembly^ passed in 1758, relative to fraudulent gifts of slaves, it is provided, that, “ Whereas many frauds have been committed by means of secret gifts made, or pretended to have been made, of slaves, by parents and others, who have, notwithstanding, remained in possession of such slaves as visible owners thereof, whereby, creditors and purchasers have been frequently involved in expensive lawsuits, and often deprived of their just debts and purchases: For…

<p>The president and directors of the state bank of North Carolina, a banking company incorporated by that name and style by the legislature of the state of North Carolina, brought an action of debt in Virginia, in the superiour court of law of Lunenburg county, against William Bowie Cowan, Joseph I)e Graffenreid, Joseph G. William,s, Richard, May, James Smith and Francis Jones, upon a promissory note alleged to have been made by the defendants on the 25th of September 1827, by which Cowan as principal, and the other defendants as sureties, promised to pay, eighty-eight days after date, to the order of William H. Haywood cashier, for value received, 8526 dollars 47 cents, negotiable and payable at the state bank of North Carolina at Raleigh, which note was averred to have been assigned by Haywood to the plaintiffs. The declaration demanded 8526 dollars 47 cents, the amount of the note, with legal interest thereon from the 22d of December 1827.</p> <p>The action abated as to the defendants Be Graffenreid and Williams, by the return of “ no inhabitant.” Cowan made default. The other defendants pleaded nil debet, on which issue was joined. The judge of Lunenburg superiour court being so situated as to render it improper, in his judgment, for him to preside at the trial, the cause was removed by his order to the superiour court of Mecklenburg county. lu that court a jury was impanneled, and a special verdict rendered.</p> <p>The special verdict finds, in hcec verba, the charter granted by the legislature of North Carolina in 1810 to the plaintiffs, entitled “ an act to establish a state bank;” which charter contains, among others, the following provisions :</p> <p>Section 5. “ In all courts of justice within this state, when any suit may be brought before them for any debt due by bill, bond, note or otherwise, against the president and directors of the state bank of North Carolina, by any person or persons, or by any bodies politic or corporate; or when any suit may be brought by the president and directors of the state bank of North Carolina, against any person or persons, bodies politic or corporate, who shall or may be indebted to the bank aforesaid by bill, bond, note or otherwise, it shall and may, in such cases be lawful, and the courts are hereby authorized and empowered, to grant judgments in gold or silver, in the same manner as if no tender law existed, and the sheriffs are hereby required, in all cases where executions shall have been awarded, to collect the amount in gold or silver, and make due return of the same.”</p> <p>Section 7. declares that “ the subscribers to the said bank, their successors and assigns, shall be a corporation and body politic by the name and style of “ The President and Directors of the State Bank of North Carolina,'” and shall so continue until the first day of January 1830, and by the name and style aforesaid be capable to have, purchase, receive, possess, enjoy and retain lands and other property, to an amount not exceeding 2,500,000 dollars, and the same to sell or otherwise dispose of, to sue and be sued, implead and be impleaded, answer and be answered, defend and be defended in courts of record or any other place whatever, and generally to do and execute all acts, matters and things which a corporation or body politic in law may or can lawfully do or execute; subject to the regulations, restrictions and provisions thereinafter prescribed and declared.</p> <p>Section 9. enacts certain rules, restrictions, regulations and provisions, to form and be the fundamental articles of the constitution of the said corporation. Among these rules are the following:</p> <p>Rule 9. “ The said corporation shall not, directly nor indirectly, deal or trade in any thing except bills of exchange, gold or silver bullion, or in the sale of goods really and truly pledged for money lent, and not redeemed in due time, or of goods which shah be the produce of its lands; neither shall the said corporation take more than the rate of six per centum, per annum for or . 7 7. ,, r upon its Loans or discounts.</p> <p>Rule 12. “ Bills or notes which may be issued by order of the said corporation, signed by the president and countersigned by the principal cashier or treasurer thereof, promising the payment, of money to any person or persons, his, her or their order, or to the bearer, though not under the seal of the said corporation, shall be binding and obligatory upon the same, in the like manner and with the like force and effect as upon any private person or persons, if issued by him or them, in his, her or their private or natural capacity or capacities, and shall be assignable and negotiable in like manner as if they were so issued by such private person or persons, that is to say, those which shall be payable to any person or persons, his, her or their order, shall be assignable by indorsement in like manner and with like effect as foreign bills of exchange now are, and those which are payable to bearer shall be negotiable and assignable by delivery only.”</p> <p>Section 10. “ The bills or notes of the said corporation, made payable or which shall have become payable on demand in gold or silver coin, shall be receivable in all payments to the state.”</p> <p>The special verdict likewise found a subsequent act passed in 1811, extending, upon certain conditions, the chatter of incorporation until the first day of January 1835 ; and a further act passed in 1S.16, amending the charter, but in no way material to this case.</p> <p>The law concerning usury, which was in force in the state of North Carolina at the time of the transactions with Cowan, was also found in ha,c verba. This law, among other things, provides that no person or persons whatsoever, from and after the first day of May 1741, upon any contract to be made after that day, shall directly or indirectly take, for loan of any moneys, wares, merchandize or commodities whatsoever, above the válue 0f £ g. bv way of discount or interest for the forbearance of £ 100. for one year, and so after that rate f°r a greater or lesser sum, or for a longer or shorter time; and that all bonds, contracts and assurances whatsoever, made after the time aforesaid, forthe payment of any principal or money to be lent, or covenanted to be performed, upon or for any usury, whereupon or whereby there shall be reserved or taken above the rate of £ 6. in the hundred as aforesaid, shall be utterly void.</p> <p>The plaintiffs introduced and proved the following note: “ Eighty-eight days after the 25th day of September 1827, we William Bowie Cowan as principal, and Jos. G. Williams, Jos. Re Grajfenreid, James Smith sen’r, Francis Jones and Richard May as securities, promise to pay to the order of William H. Haywood cashier, for value received, eight thousand five hundred and twenty-six dollars and forty-seven cents, negotiable and payable at the state bank of North Carolina at Raleigh. Lunenburg county Virg'a. Sept’r 25th 1827. (Signed) Wm. Bowie Cowan, Jos., Re Graffenreid, Jos. G. Williams, R. May, James Smith, Francis Jones.”</p> <p>,“I assign the within to the president and directors of the state bank of North Carolina. Raleigh, May 7th. 1828. Wm. H. Haywood as cashier.”</p> <p>And then the following facts were found: That the note so proved by the plaintiffs was the last note executed in renewal and consideration of what was claimed as due upon a note for 12,000 dollars, discounted by the plaintiffs for the defendants on the 12th day of October 1824, which said note was dated on the 5th day of October. 1824, and payable on the 5th day of May 1825, and discount and interest thereon were calculated at the rate of six per centum per annum. That the maker of the said note for 12,000 dollars made the following payments : 486 dollars on the 2d of May 1825, in Virginia bank notes; 1200 dollars on the 23rd of Decernber 1825, in Virginia bank notes; 200 dollars on the 7lh of April 1826, in Virginia bank notes; 500 dollars on the 13th of July 1826, the kind of money not known; 500 dollars on the 14th November 1S26, in a bill of exchange on Richmond, Virginia; 1240 dollars 76 cents on the 26th of March 1827, the kind of money not known; 500 dollars on the 25th of June 1827, in Virginia bank notes ; 500 dollars on the 25th of September 1827, in Virginia banknotes. That the said payments, in the mode in which the discounts were computed, reduced the said note of 12,000 dollars to 8526 dollars 47 cents on the 25th of September 1827, and the interest was paid in advance at the time of each renewal. That on a part thereof the discounts -were so taken as to give interest twice for the same day, on the same specific sum, the usage of the plaintiffs being to charge a discount of 92 days on notes made payable at 88 days, allowing only three days of grace; and in the calculations of interest or discounts upon the transaction in question, this mode was mostly pursued. That it was a usage of the plaintiffs, which was in part applied to the case of the defendants, to require payment on the third day of grace, and if payment was not made at that time, to charge interest from that day, if the note was renewed. That a further usage was, where a note was fully paid off on any one day, to charge interest for that day. That the plaintiffs were in the habit of using, in their calculations of discounts and interest, .Rowlett’s tables of interest, which compute 360 days to a year, and after that rate for any greater or less time, which tables were used in part in the calculation of discounts and interest upon the transaction in question. That upon a calculation, according to those tables, of all the interest accruing in the said transaction, the plaintiffs would be entitled to the sum of 19 dollars 35 cents of interest, in addition to that which they received. That when the defendant Cowan offered the original note of 12,000 dollars for discount, he accompanied it with the offer to exchange an equal amou'nt of northern funds for North Carolina bank notes, upon condition that his note were discounted ; which offer was communicated by some of the bank officers to the board of directors. That Cowan made this offer under a belief that his note would not be discounted without such condition. That the bank, at that time, was 'doing but little business; but when a note was offered for discount, accompanied with such a condition, and the plaintiffs approved of the note and condition, they seldom refused to discount. That a further condition was annexed to Cowan's note, that it should be paid in Virginia or other northern bank notes. That at that time an opinion prevailed that no discounts would be made by the bank, except on the same or similar conditions. That in compliance with-the condition aforesaid, Coiuan drew a bill upon Johnson, Moss fy Dugger, of Petersburg, Virginia, for 12,000 dollars at 90 days, which was then accepted by Dugger, one of the partners of the said firm, and delivered to the plaintiffs. That the bill and note were discounted by the bank at one and the same time, the discounts being taken in advance on both the bill and the note, for the time they had to run. That the plaintiffs paid for the said bill and note, partly in their own notes or bills, and partly in the notes or bills of other banks of North Carolina, all of which were at that time under par in Raleigh, at from 3^- to 4¿ per cent. Thgt Cowan sold these notes or bills so received from the bank, at Petersburg, at a loss of from 2¿ to 3£ per cent. ' That the notes so received by Cowan from the bank were, in the presence of the president and cashier of the bank, in their banking house, handed over to Dugger, for the purpose of exchanging them to enable him'to meet the acceptánce of the bill aforesaid. That these officers of the bank knew of the loss to which Cowan would be subjected by the transaction, That the bill of exchange so drawn upon Johnson, Moss ° . . . ca Dugger was paid by them at maturity, in Virginia or United, States bank notes, to S. if M. Allen of Philadelphia. That, about that time, the said S. ipM. Allen had sued the plaintiffs for the nonpayment of their notes. That in the sale or exchange of the notes received from the bank, Dugger acted as the agent of Cowan (which fact was known to the president and cashier): and that he had agreed with Cowan that the proceeds of the note and bill should pass into the hands of Dugger, to be disposed of by him to meet bis acceptance, the balance to be paid over to Cowan; which agreement was also known to the president and cashier, and was the inducement to Dugger to accept the bill. That on the discount of the said bill drawn on Johnson, Moss ip Dugger, the bank received a profit of the discount for the time the bill had to run. That the bank at that time was not in the habit of redeeming its notes on presentation for payment by the holders, and there had been and were then suits depending against it to coerce payment. That the president and cashier requested Dugger, as a favour, not to dispose of the notes paid to Cowan for the said bill and note, in such way that they would be likely 1o return on the bank in any short time; which Dugger promised, if he could; but this was done after the note and bill had been discounted. That at that time Virginia and United States bank notes were at par. That the note and bill aforesaid were negotiable at the banking house of the plaintiffs in the city of Iluleigh in North Carolina,. And that the plaintiffs knew that their notes were not of equal value with Virginia, or United States bank notes, at the time of the contract and negotiation aforesaid.</p> <p>Upon the special verdict, the circuit court of Meclclenburg gave judgment for the defendants; and to that judgment a supersedeas was awarded.</p>

Thomas Pollard, on the 22d of November, 178G, filed a bill of injunction, against John Rogers and others, stating that, on the 12th of August, 1782, he purchased of Rogers 645 acres of land for £ 1200, part of which he paid down, and gave two bonds for the residue. That, on the 12th and 13th of August, 1782, he took deeds of lease and release from Rogers and his wife for the land, with general warranty.

In September 1843 Thomas Bryan filed his bill in the Circuit court of Hampshire county, to enjoin the sale of a tract of land under a deed of trust executed by himself to Isaac Baker, to secure a sum of money which he owed to Jacob Stump for the purchase money of the land.

Farish Coleman, and Catharine, (formerly Catharine Rogers,) his wife, filed their bill in the high court of chancery against John Rogers and Thomas Pollard, stating, that William Rogers, the father of the plaintiff Catharine, devised his lands, consisting of 645 acres, to his two sons, John and Larkin, and his slaves and personal estate among all his children; but directed that, if either of his children should die before twenty-one years of age, the part of the one so dying…

This was a suit instituted in 1843 in the Circuit court of Jefferson county by Thomas B. Washington against Thomas H. Perdue, William Nichols, Charles Brooke and Leonard Jewell, as partners under the style of Perdue, Nichols & Co., to recover from them the purchase money óf a tract of land which the plaintiff alleged he had sold to the partnership.

Gill and wife, in right of the wife, brought an action of waste against Ross, upon a lease without a seal, made of a plantation and houses belonging to the wife, by Lucy New-sum, her guardian, appointed by the county court.

<p>Elisha White, on the 9th of March, 1780, exhibited his bill in chancery to the county court of Charlotte, stating, That, in 1762, he purchased of Henry Hatcher a tract of 426 acres of land lying in that county, then Lunenburg. That he afterwards understood that Wood Jones had obtained and surveyed an order of council for 2000 acres, and included therein the tract aforesaid, although Hatcher, as appeared by the surveyor’s books, had, in fact, surveyed it four years before Jones’s order of council was obtained : but the patent for it was delayed, until the 17th of August, 1756, in consequence of the dispute between governour Einwiddie and the locators of lands relative to his claim of a pistole for signing patents : which occasioned the loss of the said tract of 426 acres for non-payment of quit-rents, and the failure to seat and cultivate. In consequence of which the plaintiff petitioned for it as lapsed land j and, by consent, a decree was made in his favour, and a patent issued to the plaintiff, on the 15th of August, 1764. But, pending these difficulties, Jones, fraudulently, paid the governour the pistole and obtained his patent for the 2000 acres, and retains the 426 acres as part of the same. The bill therefore prayed that Jones might be compelled to give possession of the said 426 acres to the plaintiff, and for general relief. Jones afterwards dying, the suit was revived against his heir.</p> <p>The answer of Jones’s son and devisee states, That Wood Jones’s order of council was surveyed before the plaintiff’s purchase of Hatcher. That the plaintiff had brought several suits, against his father, for the said land, but had failed in all of them. That Wood Jones was not guilty of fraud in obtaining his patent: and that Iiatcher, if he ever had any right, forfeited it by his obstinacy'in not submitting to the laws. That a court of chancery had not jurisdiction in the cause.</p> <p>There were no depositions taken; but the exhibits were, 1. A copy of Hatcher’s survey, dated 6th November, 1740, of 530 acres of land; which does not state that it was made under an order of council or other public act. 2. A copy of Wood Jones’s order of council, for two thousand acres in the following words : “ At a council held May 6th, 1743, leave was given to Wood Jones to savvey and obtain a patent for two thousand acres of land in Amelia county, on Turkey branch, a branch of Cub creek, beginning at a marked oak, and running up and down both sides the said creek and branch. And at a council held May 3d, 1744, a former order obtained by Wood Jones was renewed for two thousand acres in Brunswick, lying on Turkey branch, a branch of Cub creek, beginning at a marked oak, and running up and down both sides the said branch and up the said creek. John Blair, C. C. council.”. 3. The patent, dated 16th of August, 1756, to Henry Hatcher. 4. The patent, dated the 15th of August, 1764, to Elisha White, which recites that to Hatcher; the lapse by non-payment of quit-rents and failure to cultivate and improve, and that White had brought suit and obtained a grant for the same. ' xThe county court, on the 4th of May, 1789, decreed Jones to convey the 426 acres to White; and from that decree Jones, after the hah ere facias possessionem was executed, petitioned for, and obtained, an appeal to the high court of chancery.</p> <p>On the I2th of May, 1791, the high court of chancery made the following decree :</p> <p>“ This court is of opinion, that the appellee’s title, if any he hath, to the land in controversy must be supported on the foundation, that the grant to Henry Hatcher operated retroactively, giving, to his title, like vigour, as if the consummation thereof, by the grant, had been cotemporaneous with the commencement, which preceded the commencement of the appellant’s right 5 or on this other foundation, that the grant to Wood Jones was obtained surreptitiously, when the officer, to whose function the transaction of that business belonged, did not know part of the land comprehended, in the grant, to have been appropriated, or claimed before by another, who, in not perfecting his title, had been in no default; or was obtained by collusion, between the officers and the grantee; and upon supposition that the grant, to Henry Hatcher, by relation, was prior in effect, although posterior in date, to the other; or that the latter was fraudulent; this, so far as it tended to intercept his right, was void ; and the appellee’s remedy, in a court of common law, was proper and adequate; and this court discerning no ground for application here, especially, when so great a lapse of time had elapsed, after the commencement of Hatcher's title, before any one appeareth to have attempted to assert it, and the manner in which it was derived to the appellee are remembered, is of opinion that the said decree of the court below, by which the appellee recovered the said land, against the appellant with costs, is erroneous; and, therefore, doth reverse the said decree, as it is accordingly hereby reversed, and doth adjudge, order and decree, that the bill of the appellee be dismissed, and that he do pay, unto the appellant, the costs expended by him, as well in his defence in the county court, as in the prosecution of his appeal, all which is ordered and decreed accordingly.” From which decree White appealed'to the court of appeals.</p>

Benjamin Beeler of Jefferson county died in 1827. leaving a widow and several children ; three of whom were by his last wife. Mrs. Beeler lived on the land on which her husband had lived, without any assignment of dower until 1833, when she married Abraham Isler. During her widowhood her three children lived with her; and on her marriage Isler qualified as their guardian; and at that time the daughter Mary W. Beeler was about fifteen years old.

<p>Where the property of a British subject was sold during the revolutionary war, by his attorneys in this country, without deed, before the act of October session 1779,relative to escheats of British property; the sale was valid, notwithstanding the purchase money was not paid, and an escheat had been taken after the sale, but before the passing of the act.</p> <p>And the deposit of the purchase money, by the debtor, in the public treasury, was no discharge of the debt: But he was decreed, after the war, to pay the debt with interest, to the British subject; and, upon payment, the latter was ordered to convey the estate to the purchaser.</p> <p>But, in default of such payment, the estate was decreed to be sold, to satisfy the debt.</p>

This was a suit in chancery brought in July 1841 in the Circuit court of Halifax, by Didier, Norvell & Co. against Henry Carrington administrator of John A. Morton deceased, and the four children of John A. Morton. The facts are fully stated in the opinion of the Court. There was a joint decree against Henry Carrington and the other defendants. And they thereupon applied to this Court for an appeal, which was allowed.

<p>When a court of prohat, under the 24th section of the statute concerning wills, appoints a person to collect and preserve the estate of a decedent until administration be granted, such appointee cannot properly be sued on a bond of ,the decedent. If he be sued and judgment rendered against him, a scire facias upon the judgment will not lie, after administration is granted, against the administrator, nor will the judgment be any bar to anew action against the administrator, upon his decedent’s bond.</p>

Thomas Marshall and others, entered a caveat on the 17th of January, 1786, in the land office of Virginia, against George Rogers Clark, in the following words, ■ “ Let no grant issue to George Rogers Clark for 36,932 acres of land lying in Lincoln county on the south side of the Tenasee river, and on the Ohio, surveyed by virtue of an entry on treasury warrants; because Thomas Marshall, George Muter, Charles Dabney, John Montgomery, George Walls, Christopher Roane, Nathaniel…

By deed bearing date the 13th of October 1827, between Richard M. Cunningham of the first part, William H. Brodnax and Charles F. Osborne of the second part, and such creditors of Cunningham as might testify their assent to the term’s of the deed in the mode therein prescribed, of the third part, it was recited that Cunningham was justly indebted to several creditors in different and large amounts, involving, in his judgment, equal legal but different moral and honorary…

<p>Kuhn suspecting that a slave belonging to Hoomes had robbed his store, at the Bowling Green, whipt him very severely. Hoomes, who lived about half a mile from the place, upon hearing of the whipping, went to the Bowling Green; and, after a short altercation with Kuhn, struck him: the latter returned the blow, and a fight ensued, in which Kuhn was much worsted. Kuhn brought an action of assault and battery against Hoomes, in the district court of Fredericksburg; and prosecuted the slave for the supposed theft, but he was acquitted. Hoomes brought an action against Kuhn for whipping the slave, and recovered £ 17. At the first trial of Kuhn's suit against Hoomes, Elliot and Roy were examined as witnesses for Hoomes; but, the jury disagreeing, no verdict was rendered. At a succeeding term of the court, Hoomes, who had been elected a member to a convention of the clergy at Richmond, on bis way thither met with Elliot at Hanover courthouse, and asked him to attend the trial, which he promised to do, but was prevented by sickness. As Roy, who was a neighbour to Hoomes, bad gone upon a visit to Essex, Hoomes sent a servant with a subpoena, requesting him, by letter, to attend ; but the servant did not reach him, until the day of appearance mentioned in the subpoena; and he thinking it would be too late, did not go, although the cause was not tried, until three days after-wards. No other witnesses were summoned by Hoomes; but Elliot was summoned by Kuhn, who sent a carriage to the Bowling Green to fetch him, but he was too unwell to attend, and wrote a letter to that effect by the return of the carriage, in which he says, “ Mr. WoolfolJc and Weathers were present at the fight as well as I was, and may relate what happened as well as I can.” The counsel of Hoomes made no objection to going into the trial; but he had not apprized them of his going to Richmond, his application to Elliot, and his sending the subpoena to Roy: nor had he instructed them to move for a continuance. The jury found £ 100 damages for the plaintiff; and Hoomes’s counsel twice moved for a new trial, which the judge denied, but afterwards recommended it to the plaintiff to consent, if Hoomes would pay ail the costs of the suit to that time : Kuhn refused to do so; and judgment was entered according to the verdict.</p> <p>Upon which, Hoomes filed a bill in the high court of chancery, stating the foregoing circumstances, and that a new witness was introduced, who, not having been present at the transaction aforesaid, knew little or nothing of it; but who swore, that, some considerable time before the fight, the complainant had refused, on application, to do any thing with the same negro, when under a suspicion of having stolen a guinea and certificate : which charge the complainant, if he had had notice of it, could have disproved, although it was irregular to introduce it into the cause. The bill did not alledge that the plaintiff could not have proved, by other witnesses, the same things which Elliot and Roy would have proved, if they had attended.</p> <p>The answer insisted that the verdict was just: That the counsel of Hoomes had voluntarily gone into the trial, without any attempt to continue the cause: That the defendant had always believed Elliot to be a material witness for him; and, under that belief, had endeavoured to have him present at the trial: That Roy was not present at the assault: and that the testimony complained of in the bill, was not only assented to, but solicited by the complainant’s counsel.</p> <p>Several depositions were taken in the court of chancery. . Elliot proved the whipping of the slave, and the assault upon Kuhn, whom he represented as defending himself with alacrity. Roy, also, proved the whipping of the slave, in which he himself assisted by order of Kuhn, in whose service he then was; and that Hoomes had not been previously applied to upon the subject. Several other witnesses proved in effect, the same things mentioned by those two. Brooke, who was Kuhn's counsel in the district court, stated that the counsel for Hoomes went to trial without discovering any inclination to postpone, or continue; the cause : That the testimony complained of in' the bill, was given with their consent, to the jury; and that he, (Brooke,) from a conviction of the utility of Elliot's testimon), upon the first trial, for his own client, had advised Kuhn to summon him to the second. One of the counsel for Hoomes, in the district court, was likewise examined as to what passed at the trials, but not as to the circumstances related by Brooke: who was not contradicted by any witness.</p> <p>The court of chancery made the following decree, “ The court is of opinion, that a motion for a new trial of the issue in the action at common law, between the parties, 'having been rejected by the judge before whom the verdict was found, and no matters now appearing to this court, which, if they had been known to that judge, ought to have wrought a change in his sentiments, in such a case, the interposition of this court, would be improper; and therefore doth adjudge, order and decree that the bill of the plaintiff, praying an injunction to the judgment on the said verdict, be dismissed ; and that he pay to the defendant the costs expended by him in his defence.”</p> <p>Hoomes appealed to the court of appeals.</p>

Foushee brought case, in the county court of Henrico, against Lea, who resided in Philadelphia, for not accepting a lease, for one year, of a house in the city of Richmond. At the first trial of the cause, John Banks was examined as a witness for the defendant; but, the jury disagreeing, no verdict was rendered.

In March 1844 a bill was filed in the Circuit court of King William county, in which the plaintiffs stated themselves to be Peggy Minor, widow of Richard Minor dec’d, and who before her marriage was Peggy Powers, Richard Gwathmey, sheriff and committee of the estate of James Powers deceased, and Samuel B. Lipscomb, who claimed as purchaser from Delila and Sally Powers, children of William Powers deceased.

Car Ur Braxton exhibited a bill in chancery, in the county court of Henrico, against Willing &f Morris, I. For a settlement of some mercantile transactions between them, after an attempt at adjustment, which had resulted in an agreement stating the principles upon which they should be settled. 2.

This was a proceeding by foreign attachment in the County court of Hampshire, commenced in April 1830 by William Yance against John Collins as an absent debtor and William McLaughlin executor of Daniel McLaughlin deceased, as a home defendant, in which the plaintiff sought to subject the interest of the defendant Collins in right of his wife, in the estate of her late father Daniel McLaughlin, to the satisfaction of his debt.

Thomas M. Fleming of the county of Goochland, died in 1801, leaving a widow and three infant children. By his will he gave his land to his wife for her life, and at her death to his children. He emancipated his slaves, except those he had received by his wife; and these he gave to her. And he appointed several executors, of whom Edward Bolling, the brother of Mrs. Fleming, alone qualified.

<p>(Present Tucker, P. and Cabell and Parker,* J.)</p> <p>(Absent Brooke and Brockenbrough,† J.)</p> <p>A debtor draws and delivers to his creditor an order on a third person, payable at sight, and' directs the amount, when received, to be placed to the credit of his account; the creditor, without the knowledge or assent of the drawer, takes the drawee’s acceptance payable at 60 days, and before the expiration thereof the acceptor dies insolvent: Held, the drawer’s claim against his creditor on account of the draft is a claim to unliquidated and uncertain damages for the failure to collect it, and cannot be allowed as a set-off in a suit brought by the creditor to recover his original demand against the drawer.</p> <p>A reference to arbitration in a pending suit submits all matters of difference between the parties in that suit; the suit is an action of indebitatus assumpsit, in which the defendant has pleaded non assumpsit and filed notice of set-off; but the ground on which the set-off is claimed merely entitles the defendant to an action for unliquidated damages: Held, as the matter of the set-off would not have availed upon a trial of. the issue in court, the arbitrator did right to disallow it for that reason.</p>

Williamson, by his will in 1787, devised to his daughter Elizabeth Clements and her children,, as follows ; “ I also give to ray said daughter the interest of four thousand pounds in the government funds during her life, and after her death I give the interest of the above one fourth to each of my grand children Sarah Coche, Elizabeth Clements, Frances Clements and John Clements, and at their decease the principal and interest, to be disposed by them to their heirs in such…

<p>(Absent Brooke and Parker, J.)</p> <p>Testator devises and bequeaths his whole estate, real and personal, to his five daughters and his grandson B. L. to be equally divided among them; but provides that his daughter Elizabeth shall only have a life interest in her sixth, which, at her death, he gives and bequeaths to be equally divided among her children (named in the will) to them and their heirs forever. And then he declares, that if either of his daughters or grandchildren should happen to die without having lawful issue, then and in that case he only means to lend him, her or them what he has given as abovementioned, and after his, her or their decease, to be equally divided among the survivors of them and their heirs forever. — It seems, the testator’s meaning was, that if either of his daughters or his grandson B. L. should die without issue, the share of the person so dying should be equally divided among his surviving daughters and grandson aforesaid; and if either of his other grandchildren (the children of Elizabeth) should, die without issue, his or her share should he equally divided among the survivors of the grandchildren last mentioned.</p> <p>In 1820, on the death of a legatee for life, the parties supposed to be entitled as legatees in remainder make a division of the property, in accordance with what they apprehend to be their respective rights under the will: in 1826, on the death of another legatee for life, the same parties make another division, according to the same construction of the will which had been adopted on the former division: in 1827, two of the parties file a bill in chancery against the others, insisting that the will has been misconstrued to their prejudice, and asking that the property, of which division was made in 1826, may be redivided according to the true meaning of the testator: Held, the proper interpretation of the will being difficult and uncertain, that construction which was placed on it by the division in 1820, and acquiesced in by the parties concerned, shall be adhered to.</p>

This was a bill filed in the Circuit court of King and Queen county, by James E. Moore, to set aside the will of his father Richard Moore deceased, which bad been admitted to probat in the County court of that county, in October 1834. An issue devisavit vel non was directed; and upon the trial the jury found a special verdict. The only question in the cause was as to the attestation of the testamentary paper.

This was a writ of error to a judgment of the general court; in which the Spotsylvania justices were plaintiffs against the executors of Claiborne, who was security for Bernard Moore, as executor of John Spotswood. The declaration was in the form of a declaration upon a common money bond. Plea conditions performed.

In 1825, John B. Woodford sold to Thomas W. Anderson, for the price of 6700 dollars, a tract of land in Caroline county, which had been devised to Woodford by the will of his father William C. Woodford.

By an obligation dated the 1st of February 1819, Wilson C. Nicholas bound himself in the penalty of 20,000 dollars, to assign and transfer to Joseph Smith, on or before the first day of July following, one hundred shares of stock of the bank of the United States, and to pay the lawful interest which should accrue from the date of the obligation, upon 10,000 dollars; and by indenture of the same date, Nicholas conveyed to C. Johnson a tract of land in Goochland, containing…

Cunningham & Co. filed a petition in the district court of Henrico, praying to be allowed to appeal from the judgment of the auditor of public accounts, who had rejected their claim against the commonwealth for the value of a vessel and cargo, which had been impressed, for the public service during the revolutionary war.

This was an action of debt brought originally in the County court of Hanover in the year 1825, by John Glazebrook against Sarah Ragland administratrix of Absalom Ragland deceased.

<p>Where property wag impressed for public service during the revolutionary war, application to the county court to adjust the claim ought to have' been made, in order to entitle the owner to satisfaction.</p> <p>But, if he was diverted from applying there, by promises of payment from the executive, or the auditor, that would excuse the omission.</p> <p>The act of November 1781, relative to the adjustment of claims for pro- ’ perty impressed, and the subsequent continuing laws, were acts of limitation ; and barred claims not asserted before the 1st September, 1787.</p> <p>Nor was it necessary to plead the bar.</p> <p>Appeals from the auditor are not confined to pleadings, as in ordinary cases; and therefore, for the sake of justice, new evidence was received, in the court of appeals, to shew that the acts required by the opinion of the court, had been performed by the petitioners.</p> <p>Unnecessary delay on the part of the claimant, until after the year 1790, whereby the state was deprived of an opportunity of obtaining reimbursement from the general government, barred the owner both at law, and in equity.</p>

This was an action of detinue brought in 1845 in the Circuit court of Halifax county, by Hopkins Nowlin and Cloe Irby his wife, against Matthew Winfree, to recover a number of slaves. On the trial the jury found a special verdict which presented the case as follows: Benjamin Hall died in the year 1803, leaving a will which was duly admitted to probat in the County court of Halifax.

Eppes exhibited his bill in the high court of chancery, against Tucker, stating, That Tucker, being owner of the schooner Despatch, lying in Appomattox river, adjacent to the shore of Prince George county in Virginia, it was agreed, between him and the plaintiff, that the latter should ship six hogsheads of tobacco, on board the schooner, to be transported to some port in Europe: One half of which said tobacco to be retained, by the defendant, for freight and risque; and the…

This was a case of foreign attachment brought in the Circuit court of Southampton county, by Jacob Lenow against Joseph and James Lenow as absent debtors, and Frances Lenow as a home defendant having effects of Joseph Lenow in her hands. The bill charged that Joseph and James Lenow were indebted to the plaintiff by a bond in which they were both bound for 1600 dollars. Frances Lenow answered the bill admitting that she had in her hands effects of Joseph Lenow.

Christopher Roan, as well on behalf of himself as of the commonwealth, filed, in May 1786, a libel, in the court of admiralty, against the brigantine Tortola, a British vessel, Hugh Douglass, master, for a breach of the then revenue laws of the state, charging that the ship and cargo, belonging to a foreigner, arrived at Hampton, about the 17th of April, 1786; and that the master made a false entry of part of the cargo, by concealing three hogsheads of porter, two boxes and…

John Hoomes the elder died in 1805, leaving a will dated in 1804, whereby he gave to each of his sons John, William, Richard and Armistead,… Held: that though real assets descended to the children from the father, they were not bound. The assignee cannot recover in his own name where there is no estate conveyed by the covenantor. By the warranty which we are considering, the covenantor only covenants against himself and his heirs, and those claiming by, through or under him.

The overseers of the poor, on the 3d of June, 1790, made a motion, in the county court of Hanover, .for judgment against “ William O. Winston, gent., late sheriff of the said county,” for the amount of money levied for the maintenance of the poor of the said county, for the year 1787.

<p>Whether the court of chancery should postpone the original cause, until the cross suit is ready, that both may be heard together, is discretionary: And the discretion is to be exercised as circumstances may require for the attainment of justice.</p> <p>Affected delay in preparing the cross suit for a hearing, would be a just cause for proceeding to hear the original bill.</p> <p>Suits, between different parties claiming the same property, will be heard together, to avoid decrees that might clash with each other.</p>

<p>Bill, stating the ease too imperfectly to bring the merits of the cause before the court, dismissed with costs.</p> <p>Bill, in nature of quia timet, must shew grounds for sustaining it.</p> <p>Especially if it be against an infant, and relate to transactions before her birth, and of which a discovery, ftom her, was not to be expected.</p>

Halcomb filed a bill in chancery, against the attorney general and others, stating that he had been sheriff and collector of the revenue and certificate taxes of Prince Edward county, for the years 1784, 1785 : and that the solicitor general had obtained four judgments against him, día. Two for the revenue and certificate taxes of 1784, and two for those of 1785.

Assumpsit in the circuit court of Petersburg, by John Flockheart against William C. Boswell. At the fall term of 1834, the cause was first on the court docket, and was continued till the next term. In June 1835, the defendant pleaded.the general issue.

<p>The appellant had instituted an action on the case in the general court against the appellee to recover from him the amount of a judgment obtained by the plaintiff against a certain Parke Smith. Smith, when taken on mesne process, could not give bail; and the return of the sheriff was, “ Executed January 23d, 1775, and committed to the gaol of this county.” The judgment was by default, and the declaration charged the high sheriff with a negligent escape. The plea was, not guilty. This cause, with many others, was transferred, by act of assembly, from the general to the district court, and came on to be tried in September 1789, before the honourable St. George Tucker, when there was a verdict and judgment for the defendant. The next day there was a motion for a new trial; which being overruled, the following bill of exceptions was taken:</p> <p>“ And afterwards at the same time, to wit, the 8th day of September, 1789, the plaintiff moved the court to set aside the verdict and judgment aforesaid, and to grant him a new trial, because the court, on the trial of the cause, had directed the jury to find a verdict for the defendant; which motion was overruled, the court being of opinion that, in the said action, it was incumbent on the plaintiff to prove an actual escape, by the said Parke Smith, in the declaration mentioned, from the custody, and by the consent or negligence of the defendant or his deputy, and the whole evidence, on the part of the plaintiff, being a record from the court of Hanover county, in these words: ‘ George the third by the grace of God of Great Britain, France and Ireland, king, defender of the faith, &e. to the sheriff of Hanover county, greeting: We command you that you take Parke Smith if he be found within your bailiwick, and him safely keep, so that you have his body before the justices of our county court of Hanover, at the courthouse of the said county, on the first Thursday in the next month, to answer William Johnston, surviving partner of Johnston &/■ Tinsley, of a plea of debt for one hundred and sixty seven pounds twelve shillings and five pence, damage twenty pounds, and have then there this writ. Witness, William Pollard, clerk of our said court this 23d day of January, 1775, in the 15th year of our reign. William Pollard. A copy. William Pollard, jr. C. H. C. ‘ Executed January 23d, 1775, and committed to the jail of this county. Wm. Bentley, S. Sheriff.’ A copy. William Pollard, C. H. C. At a court held for Hanover county, on Thursday, the 2d day of February, 1775, on the motion of William Macon, gentleman sheriff of this county, informing the court that the prison is much out of repair, John Starke, Francis Smith and Thomas Garland, gentlemen, are appointed to let the repairing thereof as they think necessary. A copy. William Pollard, jr. C. H. G. At a court continued and held for Hanover county, on Friday, the 5th day of June, 1778, William Johnston, surviving partner of Johnston'</p> <p>8f Tinsley, against Parke Smith, defendant,</p> <p>This day came the plaintiff, by Peter Lyons his attorney, and the defendant being arrested, and remaining in custody of the sheriff, and yet failing to appear, on the motion of the plaintiff, judgment is granted him against the defendant for what shall appear to be due to him the plaintiff, and costs, unless the said defendant shall appear, at the next court, and answer this suit. A copy. William Pollard, jr. C. H. C. Hanover county, on Friday, the 2d day of June, 1780, William Johnston, surviving partner, Sic. plaintiff, \</p> <p>». V In debt. Parke Smith, defendant, )</p> <p>This day came the plaintiff by bis attorney, and the , defendant being solemnly called and failing to appear, it is considered by the court that the plaintiff recover against the defendant and William Macon, gent, late sheriff of this county, £167. 12. 5. the debt in the declaration mentioned, and also his costs in this behalf expended. But this judgment, except as to the costs, is to be discharged by the payment of £83. 16. 2¿. with legal interest thereon from the 15th day of April, 1774, till payment. A copy. William Pollard, jr. C. H. C. A copy — Teste, John Brown, C. G. CJ And the oath of William Jlnderson, the present high sheriff, that the said Smith was not at any time turned over to his custody, by assignment from any former sheriff, together with the admission of the defendant, that the said defendant at the time of the arrest of the said Parke Smith, was high sheriff of the said county, and that the said Smith resided in Charleston some years after. To which opinion the plaintiff, by his attorney, excepted, &.c. and prayed an appeal.”</p>

<p>(Absent Brooke, J.)</p> <p>Under the statute of Virginia directing the course of descents, bastards are capable of transmitting inheritance .on the part of their mother; and where a bastard dies intestate, leaving no children or descendants, but leaving his mother surviving, and two bastard brothers by other fathers, the estate will pass to the mother and the two bastard brothers.</p> <p>In such case the two bastard brothers, being regarded as of the half blood only, will each inherit only half so much as the mother.</p>

This was an appeal from the district court of Charlottesville ; and the only question was, Whether the plea of payment should conclude to the country ?

<p>The state district courts were hound to execute the sentences of the court of appeals, reversing those of the court of admiralty, after the dissolution of the latter court.</p>

This was a contest about the existence of a public road; and the record exhibits the following facts: On the 15th of January, 1800, Clarice obtained an order of the county court of Powhatan, appointing a surveyor of the road, “ through Daniel Mayo’s plántation to Mayo’s mill.” Mayo petitioned the district court for a writ of supersedeas to that order; which was refused. The court of appeals reversed the order of refusal, and directed that the writ should issue.

<p>During the revolutionary war, the American armies con» sisted partly of troops raised for the continental service expressly, and partly of troops raised by particular states, for the proper defence of the state.</p> <p>By an act of assembly passed at the May session, 1779, Virginia raised a body of troops of the latter kind, 10 Hen. Stat. 18; and, by another act, passed at the same session, it was declared, that the officers on continental or state establishment, “ who shall servp. henceforward, or from the time of their being commissioned, until the end of the war; and all such officers who have, or shall become supernumerary on the reduction of any of the said battalions, and shall again enter into the said service, if required so to do, in the same or any higher rank, and continue therein until the end of the war, shall be entitled to half pay during life, to commence from the determination of their command or .service. 10 Hen. Stat. 25.</p> <p>By a subsequent act of assembly, passed at the March session 1781, two legions were raised for- the defence of the state; and were to “receive the pay of continental troops whilst in service or under discipline, and half pay at all other times, during'the existence of the said legions. 10 Hen. Stat. 391.</p> <p>On the 9th of February, 1783, the commanding officer at York, in consequence of an order of the executive, directing him to apportion the officers to the number of privates, proceeded to deraign the existing establishment, and to arrange a new one, according to the number of privates agreeable to the said order of the executive.</p> <p>By an act of assembly, passed at the October session 1782, it was enacted, “ that all soldiers who have entered in the two legions, raised for defence of this state, under the acts passed in the year one thousand seven hundred and eighty-one, shall be, and they are hereby permitted to enlist in this state’s quota of continental troops; provided they give up all claim to any bounty, pay, or emolument, accruing to them under the said acts.” It then proceeds to direct the executive to put money into the hands of recruiting officers to make such enlistments. After which it adds, “ and the commanding officers of the said legions are hereby empowered to discharge any soldiers of the said legions, who will give up the bounty and pay which they may claim under the aforesaid act; and the executive are hereby authorized to disband, by proclamation, the said legions, whenever they may find necessary or expedient.” 11 Hen. Stat. 133.</p> <p>And by another act of the same session, it was enacted, “ That the governour, with the advice of the council, may appoint proper persons to enlist into the continental service, all, or so many of the men composing the legion at present commanded by colonel Dabney, as shall be willing to serve therein for the term of three years, or during the war : Provided, always, that nothing herein contained shall be construed to prevent the governour, with the advice of council, from ordering such part of the said legion who may be willing to do duty on board of the barges or other armed vessels fitted for the defence of the bay, or if it should be thought necessary, to the defence of the western frontier of this commonwealth. And be it further enacted, That the governour, with the advice of council, is hereby empowered and required, in case the said legion be reduced by enlisting into the continental or other service, to direct the horses of the said legion to be sold, and the money arising therefrom to be paid into the public treasury. 11 Hen. Stat. 170.</p> <p>Upon the 20th of February, 1783, the council came to the following resolution, “ The board having had under their consideration the arrangement of officers to command the state troops, do approve of the same | and advise his excellency to write to colonel Dabney, acquainting him thereof, and directing that the supernumerary officers retire on half pay.”</p> <p>On the 24th of February, 1783, the council made an order to this effect, The governour is advised to call on the paymasters of the state legion for monthly returns of the pay due the troops, and to direct the commanding officer of the said legion to discharge all the dragoons who have not reenlisted, except those retained for expresses.”</p> <p>Upon the 27th of March, 1783, the council made an order to this effect, The governour having stated to the board, that in consequence of the reduction of the state legion, the number of officers was so diminished as not to leave enough to do the duty of the garrison at York, unless those who held staff appointments should be directed to take command and perform their duties as commissioned officers, it likewise appearing to the board that the duties of adjutant and quartermaster, may for the present be discharged by an active sergeant major and quartermaster sergeant, under the inspection of the commanding officer at the post, it is advised that the adjutant and quartermaster of the state legion be directed to relinquish their staff appointments, and to resume their commands in their respective companies.”</p> <p>On the 24th of April, 1783, the state troops were all discharged by an order of the executive.</p> <p>In 1790, the following act of assembly passed, “ Whereas doubts have arisen, whether certain officers herein after described, have a right to the compensation of half pay; for the removal of such doubts, Be it enacted by the general assembly, That the same compensation of half pay, should be extended to those officers of the state line, who continued in actual service to the end of the war, as was allowed to the officers of the continental line ; and also to those who became supernumerary, and being afterwards required, did again enter into actual service, and continue therein to the end of the war; any act or acts to the contrary in any wise, notwithstanding.” Sessions Acts 12, cap. 21.</p> <p>The appellees Roane, captain of artillery, Woodson, captain of infantry, Armstead, captain of cavalry, Quarles and Fleet, lieutenants of infantry, Diggs and Savage, lieutenants of cavalry, Graves, cornet of horse and quartermaster, Tinsley, cornet of horse, and Carter, surgeon, were officers in col. Dabney's said legion, raised under the above mentioned act of 1781, and, in consequence of themew arrangement on the 9th of February, 1783, whereby they were put upon the list of supernumerary officers, retired as such upon half pay agreeable to the order of council of the 20th of February, 1783, ready, as they alledged, to return into service again, if required. In consequence of which, they severally, in the year 1791, applied to the auditor for half pay for life ; or commutation of five years full pay, with interest, which he refused; and they appealed to the district court.</p> <p>The district court referred the case to the general court; who certified,</p> <p>That, under the act of May 1779, the officers then on duty, or who should afterwards be placed on duty, either in the continental or state service, were entitled to half pay, unless they failed to serve until the end of the war, or, being supernumerary, refused to enter into the service, on a command to that effect; and, “ that the respective laws, under which they have been appointed, and the act of 1790, entitle all such persons as are described in the act of 1779, who belonged to the state line, and who have been appointed since the passing of the act of 1779, to the like allowance of half pay, provided they served to the end of the war, or, being supernumerary, did not refuse to enter again into the service, on a command to do so; and that the troops being disbanded in the month of February 1783, and the preliminary articles of peace being signed before that period, the officers ought to be considered to have served to the end of the war.”</p> <p>Whereupon, the district court being of opinion, that the appellees were entitled to the pay they claimed, as they had never refused, after they had retired upon half pay as aforesaid, to enter into service again, directed the auditor to issue certificates accordingly.</p> <p>From which judgments, the attorney general appealed.</p> <p>The court of appeals being of opinion in each of the cases, “That under the act of assembly, passed in May 1779, intituled an ■act concerning officers, soldiers, sailors and marines, and all subsequent acts made respecting them, only such of the general officers of the state army, being citizens of this commonwealth, and such of the field officers, captains and subalterns, serving in the battalions raised for the immediate defence of this state, and such of the chaplains, physicians, surgeons and surgeons’ mates, as were appointed to the said battalions, being citizens of this commonwealth, and not being in the service of Georgia, or any other state, and for whom congress hath not made any adequate provision, and only such of them as actually served thenceforward, or from the time of their being commissioned, until the end of the war, unless restrained by being prisoners of war, on parol, or otherwise, and also only such of the said officers who became supernumerary on the reduction of the said battalions, and again actually entered into the said service, in the same or higher rank, having been required so to do, and continued therein until the end of the war, are entitled to half pay during life, under the said acts, to commenee from the determination of their command or service, when the same was duly signified to them by the governour, or executive of this state, and their regiments disbanded in pursuance thereof, after the preliminary articles of peace between America and Great Britain were signed and notified to the executive of this state, which appears by the proceedings in council, in evidence in this case, to have been on the 19th day of April, 1783, and the army disbanded in pursuance thereof on the 22d of the said month; and it appearing by the petition of the appellee, that he was a supernumerary officer, and discharged as such on the 9th day of February, 1783, before the said preliminary articles were notified, and the legion to which he belonged, disbanded as aforesaid, and that he did not again enter into the service, and continue therein, until the end of the war, this court is of opinion, that he is not entitled to half pay for life, and that the opinion of the general court, and order of the district’court thereon, are erroneous,”’reversed the order of the district court, and affirmed the opinion of the auditor, with the following addition, “ But this judgment is not to bar or prejudice any future claim of the appellee, made on fuller proof to the auditor.”</p> <p>In consequence of the saving clause aforesaid in the opinion of the court of appeals, the appellees filed their bill in the high court of chancery, against the attorney general, the treasurer and auditor, stating that they were officers, as aforesaid, in Dabney's legion. That, in autumn 1782, the governour, having received information that peace would shortly take place, communicated it to the assembly; who, believing that no state troops would be wanting, passed an act authorizing the governour and council to appoint persons to enlist soldiers, from the legion, into the continental service; and that several were accordingly enlisted. That, by virtue of orders from the executive, the old establishment was deraigned, and a new arrangement made on the 9th of February, 1783, which was approved of on the 20th of that month by the executive; whereby the plaintiffs became supernumerary officers, and retired as such, upon half pay, when notified thereof, on or about the 24th of February, 1783, agreeable to the said order of the executive of the 20th of that month. That no hostilities were committed in Virginia after the first of February, 1783; and that the plaintiffs had, in effect, served until the end of the war, as their men were taken from them by the act of government, and they permitted to retire as supernumerary officers on half pay, liable to be called into service again. That under the acts of 1779 and 1790 they were respectively entitled to half pay, or five years commutation in lieu of it: which the auditor had refused ; and therefore the bill prayed a decree for it.</p> <p>The answer of the auditor, admitted that the plaintiffs were officers in the legion; but states that they had left the service before the 22d of April, 1783, which was the true date of the peace; and that the court of appeals had so decided.</p> <p>The court of chancery, being of opinion, That by the words of the act of the general assembly of the May session, in the year 1779, intituled an act concerning officers, soldiers, sailors and marines, officers who have or shall become supernumerary on the reduction of battalions and shall again enter into the service, if required so to do, and continue therein until the end of the war, shall be entitled to half pay during life, to commence from the determination of their command or service, the officers intended to be provided for were of two classes; one, those who had continued in the service until their battalion was reduced, and their command determined, and were not required to enter again into the service; and the other, those who, after the reduction of their battalion, were required to enter, and did enter, again into the service, and continued in it until the end of the war; and that the said words ought to be interpreted thus: Officers who have or shall become supernumerary shall be entitled to half pay during life, to commence from the determination of their command, if they were not required to enter again into the service and refused to do so; and officers who have or shall become supernumerary, and shall again enter into the service if required so to do, shall be entitled to half pay during life, to commence from the determination of their service; because, by any other interpretation, the words “ command or,” in the last member of the sentence, would not only be superfluous, but have no meaning; and because the words, although they may be interpreted in another sense, ought to be interpreted in a sense most beneficial for the officers whom the general assembly were inviting into their service by offers of gratuities the most liberal in their power to make. But this' court is of opinion that by the latter part of the act of the general assembly, made in the year 1790, intituled, ‘ an act giving compensation of half pay to certain officers of the state line? such of the petitioners as belong to the first of the two classes before mentioned, are so distinguished from officers of the other class, that the petitioners are not entitled to half pay by that part of the act, although the court cannot believe that the general assembly intended to deprive them of it, being unable to divine any reason for the distinction. Nevertheless this court is of opinion that by the former part of the last mentioned act, the officers, who were discharged by proper authority, and not required to enter again into service, after the 30th day of November, 1782, that is, in the February following, are entitled to their half pay no less than those who were not discharged before the 22d day of April, in that year, to whom the compensation for half pay hath been allowed; because the former may be said, with as much propriety as the latter, to have continued in the service until the end of the war, since they were in the service on the said 30th day of November, when the provisional articles between the United States of America and the king of Great Britain were done, by the seventh article whereof it was agreed that there should be a peace between those parties, and their respective citizens and subjects, and that all hostilities should cease, and by the ninth article restitution was agreed to be made of whatever might be con» quered by the arms of either from the other before the arrival of those articles in America: whereas if the end of the war was not before the definitive treaty of peace between the same parties, which was done the 3d of September, 1783, those ofcers who were discharged before that day, that is, those who were discharged on the22d day of April, 1783, had not served until the end of the war,” decreed that the auditor should allow “ half pay for life or five years commutation, in lieu thereof,” to the plaintiffs, or such of them, as should “ appear to be entitled thereto according to the foregoing opinion.”</p> <p>The defendants appealed from the decree to the court of appeals.</p>

Isaac Williams late of Wood county, by his last will and testament, duly recorded in the court of the said county in November 1820, after giving several small pecuniary legacies, devised and bequeathed all his real estate and slaves to his wife Rebecca Williams for her life, and also bequeathed to her one half the proceeds of his other personal estate, which might remain after the payment of his debts.

<p>Thomas Scott, on the 27th of October, 1773, being indebted to Field Call in a large sum; and being desirous of borrowing money to satisfy the demand, applied to doctor James Field, (who supposed he had money in Scotland,) requesting a loan, to the amount of the debt due to Field & Call. To which James Field assented, provided Scott would give him a bill of exchange, for the sum to be lent, upon some house in Great Britain, and procure an endorser as security, in case the bill should be protested. Scott thereupon applied to Field & Call, who wanted money in England, to become endorsers; which they agreed to do, if James Field would give them a bill upon Great Britain for £ 1000-sterling, and be answerable to them, for the balance of Scott’s debt. This being consented to upon all sides, Scott drew two bills of exchange, endorsed by Field & Call, that is to say, one for £ 1000 sterling, and the other for £ 187. 15. sterling, upon Camming & Son, of Edinburgh; and James Field drew a bill on Home, of Edinburgh, in favour of Field & Call, who endorsed it to Bland, of London. All the bills came back protested; and Field & Call finding themselves liable to Bland, as endorsers of James Field’s bill; and, to James Field, as endorsers of the bills drawn by Scott, whose original debt consequently remained unsatisfied, obtained, from Scott, a deed of mortgage in order to secure them against future events. Field & Call took up the bill for £187. 15. sterling, and Call, as surviving partner of Field & Call, brought suit in the high court of chancery, to foreclose the mortgage; and praying that Scott might be decreed to pay to James Field, the amount of the bill for £ 1000 sterling; and, to Field & Call, the amount of that for £187. 15. sterling. The answer of Scott’s representatives alledged, that the money was tendered to doctor Field; and that the bills were given for an usurious consideration. The court of chancery dismissed the bill upon a hearing; and the plaintiff appealed to the court of appeals.</p>

Action on the case by Hunter against Hawthorn, in the circuit court of Mason county, for a deceit in the sale of a slave. At April term 3884, issue was joined on the plea of not guilty, and the cause was then continued for the defendant. At the following term, held in September, the defendant again moved for a continuance till the next term.

Power brought debt, against Finnie and Tabb, upon a bill of exchange drawn by Finnie on Colin, Dunlop Son of Glasgow, payable to Tabb or order, and by him endorsed in these words : 5‘ Pay the within contents- to Jack Power only.” Plea nil debet, and issue. The plaintiff filed a bill of exceptions to the opinion of the district court, which stated, in substance.

By indenture dated the 2d of October 1833, Edward M’Cullough of Harrison county, reciting that he was indebted to various individuals and mercantile firms (who were named) and was desirous to secure the payment of the debts due them, conveyed and assigned to John Gifford and Patrick M’Cullough, their heirs and assigns, all the goods, wares and merchandise then in his storehouse in Clarksburg, and all bonds, notes, debts, claims and accounts to him then owing, together with…

Marquess filed a bill in the high court of chancery against Grigsby, Hooe and Bruce, stating that, in 1782, the plaintiff purchased of the defendant, Mott Grigsby, a tract of ninety acres of land, and took a deed; which was proved in court by two witnesses, and lodged for further proof.

This was a contest about the will of Francis Moore; and the question turned upon his competency at the time of making it. There were three attesting witnesses; and the testator’s son Reuben was best provided for by the will.

<p>In 1760, Nathaniel Chapman died intestate in the state of Maryland. He left a widow (who besides her legal interest in his estate, possessed, in her own right, lands and slaves of considerable value), three sons, Nathaniel, Pearson and George; and several daughters. Nathaniel the eldest of the sons succeeded, as heir, to all the intestate’s lands, which were very considerable, in Maryland and Virginia : and he dying soon after, also intestate and without issue, the inheritance, in all the lands, devolved upon Pearson bis eldest brother; who frequently declared his intention of letting his brother George have part of his father’s lands, but never ascertained any specific tract, or quantity. In 1766, the mother pressed Pearson to make a specific donation to George ; and he promised to do so upon terms which she orally agreed to. In consequence of this, he executed three deeds in Alexandria, one for a tract of land in Fairfax; another for two lots in Alexandria; and the third for the Pignut tract of land in Fauquier; to which county, the last deed was sent to be recorded; but, there being only two witnesses to it, it was afterwards returned to the mother, that she might get it acknowledged before a third witness. She trusted it with Pearson; who declined to make the acknowledgment, as she had not fulfilled her promise, but constantly declared that he was willing to do so, on her performance of the agreement. He however probably destroyed it afterwards, upon discovering that she had conveyed part of her property to the plaintiff. In 1771, Pearson devised the Fauquier tract of land to his son George ; and the mother conveyed all her lands to the plaintiff, declaring that she did so, in order to make him amends for his loss of the Fauquier land. She also devised all her estate to him, except fifteen guineas to a grand daughter, and a guinea, for a ring, to Miss Harrison. The plaintiff, George Chapman, exhibited his bill for a conveyance of the Fauquier land; and the high court of chancery, after directing an issue to ascertain the promise, which was found for the defendant, dismissed the bill with costs. From which decree the plaintiff appealed to the court of appeals.</p>

In 1795, Adam Hunter and Patrick Home, as executors and devisees of James Hunter, deceased, and James Hunter, another of the devisees of the said James Hunter, deceased, petitioned the county court of Stafford for leave to build a mill “ on their own land, lying on the waters of the Rappahannock, and to build a dam to abut upon a rock within fifty yards from the north side of said river, the said fifty yards being either the property of the said devisees, or of the…

B. F. Cockran instituted an action upon the case against George W. Trice in the Hustings court of the city of Richmond, and filed a declaration containing two counts. Held: therefore, to apply to any unsoundness existing prior to that purchase, but must be construed, like a warranty of soundness where there is a visible defect, as not covering that defect.

Action on the case in the circuit superiour court of law and chancery for Ohio county, by Griffith against Burley sheriff of the said county, for suffering the escape of a slave belonging to plaintiff The action was founded on the 4th section of the statute passed February 25th 1824, Supp. to Rev. Code, ch. 179. p. 237.* The declaration contained four counts.

George See, late of Hardy county, by his last will and testament, dated September 3. 'J 803, and recorded June 11. 1811, made the following devise (among others): “ I give and bequeath to my daughter Phoebe Couchman the upper half of my plantation, to be equally divided between her and John Craigen as to quality and quantity; but should my said daughter die without heirs of her own body, it is then my will and desire that said half of my plantation should be divided between…

<p>Gordon brought detinue in the district court, against Harvey for a slave. Plea, non detinet, and issue. Verdict and judgment for the defendant. The plaintiff filed a bill of exceptions, which stated, that it appeared, that the slave sued for was purchased, by the plaintiff, of John Heath; who, at the time of the trial, was attending his duty, as a memher of congress, in Philadelphia 3 but was eventually interested in the final determination of the suit. That it appeared, that the question of right to the slave greatly depended upon information to he obtained from the said Meath. That the plaintiff moved for a new trial upon payment of costs, and upon condition, that he should prove to the satisfaction of the court, that the defendant had delivered possession of the slave, to Meath, after the sale 3 and had received part of the purchase money. But that the court refused the new trial, and gave judgment for the defendant.</p> <p>The plaintiff appealed to the court of appeals.</p>

The declaration in this case was very unusual, and jumbled a variety of things together, the whole amount of which was, that the defendant had taken away a hogshead of tobacco belonging to the plaintiff.

In December 1841 the executrix of William Montague recovered a judgment against the administratrix of Miles Turpin deceased, in the Circuit court of Henrico county for 920 dollars debt and 280 dollars damages. This judgment was rendered upon a bond executed on the 19th of May 1814 by Benjamin Haley, George Williamson and Miles Turpin to William Montague for the sum of 460 dollars, for the hire of several slaves for the year 1815, and was in the penalty of 920 dollars.

Tabb as son, heir and administrator de bonis non, of John Tabb, brought a suit in chancery in the county court of Mecklenburg against Ferrel and wife, executors of Noah Dortch, and Alexander Boyd, acting executor of Richard Swepston deceased. The bill states, that, in July 1775, the said John Tabb died intestate, leaving Mary Tabb his widow, who, with Dortch, took administration on his estate. That Dortch died in 1781.

Action of trespass, in the circuit superiour court of Randolph county, by Solomon Yeager against Solomon Carpenter and eleven others, for breaking and entering the plaintiff’s close. The defendants pleaded the general issue, and also filed three special pleas, of which it is only material to n'otice the third.

On the 12th of May 1837, John Durham, a boot and shoe maker residing in the city of Richmond, having been sued for a debt which he considered he did not owe, and apprehending that a judgment might be recovered against him during the term of the Court which *had then commenced, ex- . ecuted a deed of trust on his property for the benefit of his other creditors by n ame: providing in the deed, however, that no creditor who should not within thirty days from its date, signify…

Ejectment, in the circuit superiour court' of law and chancery for Logan county, by Seekright lessee of Joseph Gore, against Anthony Lawson and Robert A. Clcndenen, for 20 acres of land on Guyandotte river. At the trial on the question of title, the plaintiff gave in evidence a patent to his lessor Joseph Gore, for the land in controversy, dated the 22d of November 1830.

Swan and M’Rae filed a bill in the high court of chancery, against Walcott, Smyth and the register of the land office, stating, that, upon the 21st of July, 1795, Smyth contracted with M’Rae (who had engaged to procure lands for Swan) to locate 300,000 acres in a certain tract of country lying in the county of Russel.

<p>On the 29th of August 1833, Thomas O. Taylor sued out of the circuit court of Harrison a writ of prcecipe quod reddat against John Rightmire, in the form prescribed by the statute. On the return of the writ, the demandant filed his count, and the tenant having been summoned and not appearing, the court made an order, according to the statute, that unless he appeared at the next court, judgment should be entered against him. Nevertheless the cause was continued at the two following terms; and at May term 1835, the death of the demandant was suggested on the record. Subsequently, to wit, at October term 1835, Holden Rhodes and Archer L. Wooldridge, devisees of the demandant, moved the</p> <p>court to award a scire facias against the tenant; and the tenant appearing by his attorney, and waiving the necessity of issuing the scire facias as prayed for, the parties agreed that the right of the devisees to revive the cause might be then decided. The devisees produced the will of the demandant, duly executed and admitted to probat, devising to them the land in controversy; and the motion was thereupon argued. The circuit court held that the cause could not be revived in the name of the devisees; and to that judgment a supersedeas was allowed.</p>

William Mayo, as heir at law of Joseph Mayo, brought ejectment against Paul Carrington and others, for a tract of land in Mecklenburg county; and, by a case agreed, it appeared, that the said Joseph Mayo, by his will, made the 27th of May, 1780, and proved the 10th of October, 1785, after sundry specific devises of lands and chattels, proceeded as follows, “It is my roost earnest request, that the gentlemen who shall be named and appointed executors of this my last will,…

<p>Cowles and others legatees of Susanna Cooper formerly Susanna Hooker, filed a bill in the high court of chancery against Thomas Cowles and William Brown stating, that, by marriage settlement, the property of the said Susanna Hooker, the wife of John Cooper, was reserved to her use, with the right of disposing of it by her last will. That she died in 1773; and, by her will, after some specific bequests, devised several slaves to the said John Cooper her husband for life, with power, at his death, to divide them among the children of Thomas and John Cowles in such manner and proportion as he might think proper. That the said John Cooper, after the death of his wife, sold some of the said slaves, and bartered others. That, at his instance and prior to the making of his will, Thomas Cowles, jr. exchanged four of the slaves with Brown for a tract of land; and, to cover the transaction, Cooper made a pretended conveyance to Cowles; who was to make a title to the purchaser; but that Cooper was to receive part of the purchase money. And that Brown was executor of John Cooper. The bill prays for general relief.</p> <p>Brown’s answer, admitting the marriage settlement and the will of Susanna Cooper, states, that John Cooper, in conformity thereto, made a distribution in such a manner as he thought proper, as would appear by his will. That the four slaves and the land were exchanged as an accommodation to Thomas Cowles, jr.; and that the defendant does not believe that the plaintiffs’ interests were affected thereby, as John Cooper would not have given them any part of the said four slaves: Nor does he believe that John Cooper ever sold any of them, except one woman and her child; which he intended for Thomas Cowles; to whom a deed, for them, was given, and, as the money has not been paid, that the latter may either sue for the negroes, or take, according to the oral direction of Cooper to the defendant, half of the bond for the purchase money. That the said John Cooper had a preference for Thomas Cowles; but gave other slaves, besides those mentioned in his will, to some of the plaintiffs.</p> <p>The answer of Thomas Cowles, jr. states, that the testatrix was to have made him compensation by her will, for a tract of land given by him to his brother, at her request; but, having neglected to do so, she desired that it should be done by John Cooper, who promised the defendant that he would. That the defendant was not present at, or any way privy to, the will of John Cooper; who afterwards proposed the exchange of the said four slaves for the land : which the defendant reluctantly agreed to.</p> <p>The marriage settlement stipulates with Thomas Cowles the trustee, that the property and slaves of Susanna Hoolcer the intended wife remaining after the payment of her debts “shall be and remain to the said Susanna, and shall be vested in the said Thomas Cowles to and for the separate use of the said Susanna to be disposed of, by her, in such manner and to such uses as she shall think fit, and direct, by any writing, deed, or will subscribed by her in the presence of two or more credible witnesses, as fully as if she the said Susanna, at the time of executing such writing, deed or will, was a feme sole.”</p> <p>The will of Susanna Cooper, attested by three witnesses, devises as follows : “ My will is, that my beloved husband John Cooper give to my brother Thomas Cowles's daughters Mary Cowles, Susanna Cowles, Sara Cowles, and Elisabeth Cowles each a young negro girl of the negroes that were made over in marriage articles for my use. And all the other said negroes I give to my beloved husband, requesting, at his decease, he will give the said negroes among the children of my brother Thomas Cowles and my brother John Cowles, in such manner and proportion as he shall think proper.”</p> <p>The will of John Cooper, dated 15th December, 1791, (professing to execute the power,) confirms to Mary Walker, (who was one of the daughters of John Cowles,) and her husband William Walker, the negroes he had put them in possession of some years before: To Thomas Cowles son of John Cowles, “ for his exceeding good behaviour,” seven slaves in addition to those he had already put him in possession of: To Susanna Gaddy, two slaves, and confirms to her, another put into her possession some years ago : To Mary Richardson, one slave, and confirms to her, another put into her possession some years before: To Edmund Cowles, two slaves : The remainder he devised “ to be equally divided among the nephew and nieces of my wife Susanna, to wit, Thomas, Henry, James and Samuel, Sarah and Betsey, sons and daughters of Thomas Cowles, Elizabeth Taylor, John Cowles, and the heir of Susanna Coioles, son and daughters of John Cowles, share and share alike, excepted out of this division, Jerry, which I give to Eliza Taylor, at the same time she is not excluded out of the general division of the above remainder. To Sarah and Betsey Cowles, I give and confirm unto them, the negro girls put in their possession some years ago. I should have made a more equal and general division among the negroes which I have right to dispose, which came by my wife Susanna, but to some it would be but burthening their conscience to hold them as slaves or they must liberate them, which in my opinion would be a very great disadvantage to the slaves.”</p> <p>There is a deed from John Cooper to “ Mary Walker, daughter of John Cowles deceased, and William Walker, who is intermarried with the said Mary;” which for £240, “ and in compliance with the request of his late wife, Susanna Cooper deceased,” conveys to Walker and wife, eight slaves, and warrants the title.</p> <p>John Cooper, by deed, reciting the power, and dated the 22d of December, 1792, gave a negro woman and her increase to Thomas Cowles, son of John Cowles, as part of his proportion of the slaves of Susanna Cooper his wife.</p> <p>There is a letter from Thomas Cowles to William Brown, dated 16th February, 1792, saying, “1 feel dissatisfied respecting the four negroes that Mr. Cooper have left in his will, and bound me to be exchanged with you for land, and you considered it unjust as well as myself, and I have determined to deliver the said negroes up to the legatees, upon considerations you will give me up my obligation. I dont wish to hold any thing that I consider so unjust as that, so hope you will not be a bar to prevent my giving up the said negroes.”</p> <p>The depositions prove, that John Cooper took an active part in the bargain for the exchange of the land and negroes between Thomas Cowles, jr., and Brown: that the land was worth £ 63 : that Cowles had said that the suit was for the four negroes which Cooper had made him give for the land •, that Broivn had declared he would give up the said four slaves, if Cowles would return the land, or he would buy the slaves : that the value of the negroes was £225 j and that John Cooper gave Walker eight negroes for four, the latter insisting on a warranty, which was given.</p> <p>The court of chancery being of opinion “ that the disposition of John Cooper of his defunct wife’s slaves was valid,” dismissed the bill with costs: and the plaintiffs appealed to the court of appeals.</p>

Edward Sims, who sued as well for the commonwealth as for himself, brought an action in the circuit court of Fayette county against George Alderson sheriff of the said county, to recover a penalty of GG6 dollars 66 cents under the 33d section of an act concerning general elections in this commonwealth, passed April 2d 1831. Supp. to Rev. Code, ch. 88. p. 112.* The declaration was in debt, and contained three counts.

Porter brought indebitatus assumpsit, in the county court, against Harris, for work and labour done and performed, and for materials found in and about the same. The plaintiff obtained an office judgment and writ of enquiry in January 1794; and, at the March court, in the same year, without setting aside the office judgment, a general order of reference, to be returned to the next August court, was made by consent, with a release of all antecedent errors.

A marriage being about to take place between Henry H. Charles of the county of York, and Martha P. Wynne, widow of Richard Wynne deceased, a deed bearing date the 8th day of October 1835, was… Held: then, that the words of the deed manifested an intention to take the subject from the husband upon the contingency that has happened, they failed to give it to others and only authorized the wife so to give it; and this she has never done.

<p>A marriage being about to take place between Henry H. Charles of the county of York, and Martha P.. Wynne, widow of Richard Wynne deceased, a deed bearing date the 8th day of October 1835, was executed by the parties for the settlement of her property. This deed recited that it had been agreed between the parties that Mrs. Wynne should, after the marriage, receive and enjoy, during the joint lives of the said Wynne and Charles, the interest and occupation of her personal iiii ii- i estate; and also that the same, and the interest and profit thereof, from and after the decease of such of them as should first happen to die, should be at the sole and only disposal of the said M. P. Wynne, notwithstanding her coverture. And that it had been also agreed, that in case the said Charles should, after the marriage, happen to survive the said M. P. Wynne, that he should not claim any part of the real or personal estate whereof the said M. P. Wynne should be seised or possessed or entitled to, at any time during the coverture; and that the said real and personal estate of the said M. P. Wynne should be in nowise under the control of said Charles, nor in any manner or at any time subject to his debts.</p> <p>The deed then proceeds to convey in the name of M. P. Wynne to James Kirby sr., with the consent and approbation of Charles, which is witnessed by his sealing the deed, all her property both real and personal, in trust for Mrs. Wynne until the marriage, then upon trust that Kirby will permit her to enjoy the sole, separate and exclusive use of the said property for her own separate and special use; and upon the further trust that the trustee will permit the said M. P. Wynne to dispose of the said property by deed, will or otherwise, as she shall think proper: and that he will convey a legal title to the person or persons to whom she may convey the property. This deed was executed by Charles, Mrs. Wynne and the trustee, and duly admitted to record: And the marriage took place.</p> <p>In December 1849 Mrs. Charles died, leaving her husband surviving her, without having disposed of her estate either by deed or will, or otherwise. She left no child surviving her or descendant of a child, though she had had children by her two former marriages; but they had died before her marriage with Henry H. Charles. Her distributees, if her husband was not entitled to her personal estate, were her nieces, descendants of sisters, of whom one was married to William H. Charles.</p> <p>The slaves belonging to Mrs. M. P. Charles at the time of her marriage, never went into the possession of the trustee, but always remained in the possession and enjoyment of Henry H. Charles, during the coverture.</p> <p>At the April term 1850 of the Circuit court of York county, Henry H. Charles moved the Court to be permitted to qualify as the administrator of his late wife, Martha P. Charles; which motion was opposed by William H. Charles, who asked for the administration for himself, on the ground of his marriage with one of the nieces of Martha P. Charles, entitled, as he insisted, to a portion of the estate. These motions came on to be heard together in April 1851, when the Court overruled the motion of Henry H. Charles, and granted the administration to William H. Charles. And thereupon an exception was taken to the opinion of the Court, and Henry H. Charles applied to this Court for a supersedeas, which was awarded.</p> <p>It is submitted that the decision of the Circuit court was erroneous and prejudicial to Henry H. Charles, and ought to be set aside and reversed. He must by operation of law be entitled to the property, unless the deed has intercepted the rule of law, and by substituting a rule of its own and a rule intended to apply to the emergency which has occurred, has clearly not only taken the property from him, but given it to others. For where, upon a given state of facts, the rule of law turns property over to one man, it cannot be turned over to another by any compact, agreement or declaration of any party or parties which stops short of clearly giving, and manifesting an intention to give it to such other. Heirs cannot be disinherited by the strongest declarations in a will that they shall not take: the will must go further and designate others who shall take. Boisseau v. Aldridges, 5 Leigh 222. By similar reasoning, husbands cannot be deprived of their rights of property arising “jure mariti” by a deed which shall even declare that they should not have them, unless the deed further provided that they should go to others. If they be not by the deed, in the event that has occurred, turned over to any body, then it is not a “ casus foederis.,” not a case which the deed has provided for, but a “ casus omissus,” one for which a rule must be found not in the deed, but in the general principles of the law. And these general principles give the property to the husband; enable him to qualify as the wife’s administrator, and afterwards to keep possession absolutely for his own benefit, subject only to the payment of her debts. See 1 Lomax’s Ex’rs 135, 136, 310, 311; Tate’s Dig. 394-5, § 7. See also Code of Virginia of 1849, p. 541, § 4.</p> <p>Even should it be held, then, that the words of the deed manifested an intention to take the subject from the husband upon the contingency that has happened, they failed to give it to others and only authorized the wife so to give it; and this she has never done. Of consequence neither the deed nor the wife has ever yet given the subject to others; and if given to others it can only be by operation of law. But there certainly is no rule of law which, under the circumstances, can give the property to others; though there is the general rule of law which does give it to the surviving husband.</p> <p>It is worthy of remark, that in the recital of the deed, as well as in the express declarations of trust, while great care is evinced to secure the property to the separate use of the wife, and to give her the power to dispose of it, there is an utter absence of any expression or provision to point out how it is to go in case of her making no such disposition. The trustee, “his executors, administrators and assigns,” are to permit the feme [studiously omitting, apparently, her executors or administrators,] to enjoy the separate use of the proper- ^ an¿ to dispose of it by deed, will or otherwise ; and they are required to convey the legal title to the person or persons to whom she may convey the property. Now this omission is very strong to shew, [made as it was in a deliberate deed,] that as against the husband, the only parties intended to be preferred, certainly the only parties expressly preferred, were the feme and her appointees; and it is unnecessary to dwell upon the essential distinction between such appointees and the present antagonists of the husband. Indeed, it can scarcely be doubted, that in the case of Bray v. Dudgeon, 6 Munf. 132, the introduction of expression, where here there is omission, was the turning point of the adjudication. There, the deed expressly provided, that upon the failure of the wife to appoint, “ her proper and legal heirs” should take ; and it is manifest that it was this provision which excluded the husband alike from the administration and the property. A similar commentary obviously occurs in reviewing the case of Ward v. Thompson, 6 Gill & John. 349, in which the rights of the husband were held to be extinguished by the stipulation that without his interference in any manner the trust subject should be under the exclusive and entire management and control of the wife, “ her heirs, executors, administrators or assigns,” who, it was agreed, should “receive and enjoy the rents, issues and profits.” The case of Marshall v. Beall, 6 How. S. C. R. 71, is explicable in the same way. And the governing principles applicable to the present case, and similar cases, are very luminously illustrated by Chancellor Kent in Stewart v. Stewart, 7 John. Ch. R. 229, 245, 246, 247, a case which takes what seems to be the true ground, that the marital rights of the husband, over the property of his wife, can only be extinguished by plainly and clearly giving that property to others, or by conferring on the wife, or her representatives, other than the husband, the power to make and accomplish such gift, and an execution by her or them of such power.</p> <p>Besides, it is submitted, that the true construction of the recitals in the deed, does not authorize the inference that they are intended to deprive the husband entirely, at all events, and upon every contingency, of all rights of property in the trust subject. That passage in the recital, [omitted in the declaration of trusts,] which provides that the husband, in case of surviving the wife, should not claim any part of the trust subject, ought to be taken in connection with the rest of the deed : and so taken cannot properly be made to do more than stipulate that the husband, as against the claims of the appointees under the wife, [so appointed in' conformity with the deed.] should not assert any conflicting or repugnant rights. This would reconcile all parts of the deed. Anything else would bring them in conflict. But should such conflict be brought on, the recital would have to give way to the declarations of trust. Mere matter of introduction could not over-ride the solemn provisions in the conveyance and the declarations of the trusts therein. Stewart v. Stewart,7 John. Ch. R. 229; Sheph. Touch, ch. 5, p. 75, 76, note 62, 78, 77, 88, in 30 Law Libr.</p> <p>The whole question is, who is entitled to the estate of Mrs. Charles ? On the question who is entitled to administration there has been some vacillation in the decisions on the English statutes; but when the case came up between the husband and the next of kin, it was decided in favour of the husband; but he took the administration because he was entitled to the property; and only when entitled. Fielder v. Hanger, 5 Eng. Eccl. R. 265; Watt v. Watt, 3 Ves. R. 244; Bailey Wright, 18 Ves. R. 49; Fettiplace v. Gorges, 1 Ves. jr. 46; 1 Wms. Ex’ors 244; Toller’s Ex’ors 85, 116; Cutchin v. Wilkinson, 1 Call 1; Hendren v. Colgin, 4 Munf. 231; Bray v. Dudgeon, 6 Munf. 132; Thornton v. Winston, 4 Leigh 152. These cases shew that the person entitled to the property is entitled to administration on the wife’s estate.</p> <p>The enquiry then is, what interest did Henry H. Charles take in his wife’s estate. And this depends on the construction of the deed of the 8th of October 1835, executed by the parties. Pending the treaty of marriage the husband covenanted that she should have her own estate; and that he would not claim any interest in it if he survived her. The property of the wife was not property in possession, in which the title of the husband was perfected by marriage; or there would have been no necessity for administration on her estate. But the legal title was in the trustee and the beneficial interest was in the wife; and as there must be a joint interest, in order that one may take as survivor, there could be no title by survivorship in the separate property of the wife.</p> <p>It is insisted by the counsel on the other side, that though it is true that the husband excludes himself, he should have gone further and pointed out some one else to take the property in the event of the intestacy of the wife. And Boisseau v. Aldridges, 5 Leigh 222, is relied on for the proposition. But there the son was no party to the instrument; here the husband is a party to the deed; and he in consideration of the marriage covenants that he will not take anything either during the marriage or if he survives the wife. This is all the husband could do. He had no right to say how the property should go ; nor had he auy interest which he could convey. All that he had was such an interest as he could only release and only release to her; and that he did, and thereby her title became perfect. King v. Bettesworth, 2 Strange’s R. 1118; 2 Story’s Equ. Jur. § 1382. This last authority and the cases there cited, shew that all the husband has to do, to exclude himself, is to create a separate estate in the wife, and that excludes him.</p> <p>It is said that the wife should have made an appointment ; and that it is only her appointee who can exclude the husband. The wife here stands as a feme sole, and has the power and the estate of a feme sole ; and an appointment is unnecessary io pass her property. Here Mrs. Charles had a separate estate on which there was no limitation as to time; and therefore she had the power to dispose of it without regard to the power of appointment. Tappenden v. Walsh, 1 Eng. Eccl. R. 100 ; Fettiplace v. Gorges, 1 Ves. jr. 46; 2 Story’s Equ. Jur. § 1389, 1390, 1394. In such a case it is not necessary that the deed or marriage agreement should direct who shall take the estate after the death of the wife without making an appointment. Bradley v. Westcott, 13 Ves. R. 445, 451; Barford v. Street, 16 Ves. R. 135; Anderson v. Dawson, 15 Ves. R. 532; Gackenbach v. Brouse, 4 Watts & Serg. 546.</p>

Action of assumpsit in the county court of Mason, by Charles Hunter against Ezekiel M’Farland, in which issues were joined on the pleas of non assumpsit and non assumpsit within fixe years. The defendant wishing a discovery from the plaintiff) to be used in evidence at the trial, filed written interrogatories to the plaintiff under the act of April 1C. 1831, Acts of 1830-31, ch. 11. § 68.

On the 12th of March, 1794, Backus gave his bond to Barksdale for payment of a sum of money on demand; and Barksdale, on the following day, assigned it, to Fen-wick, “ for value received.” On the 23d of December, 1794, Fenwick sued out a writ, upon the bond, against Backus from the hustings court of Petersburg; to which writ, the sergeant of the town made the following return : “ Dismist p. o. of plaintiff,” wijtjjp,ut any date; and, at the rules held in the hustings office…

This was a suit in the Circuit court of Lynchburg, by John G. Meem and others, simple contract creditors of John J. Gabell deceased, against his administrator and heirs, to marshal the assets, and have payment of their debts out of the real estate of the deceased.

<p>Upon a decree obtained in the late superiour court of chancery bolden at Greenbrier courthouse, by Robert Kelly and Samuel Hutchison as executors of John Hamilton deceased, against David Stuart and Susanna Wilson, for 339 dollars 31 cents with interest from the 3rd day of August 1819 till paid, tbe plaintiffs, on the 26th of July 1824, sued out a writ of capias ad satisfaciendum, returnable to October following, upon which the marshal made return that he had executed the same on David Stuart and committed him to the jail of Nicholas county. Stuart broke jail soon afterwards, and made his escape, but was retaken and recommitted to the same jail. He escaped a second time, and an escape warrant was issued against him by a justice of Nicholas county on the 10th of August 1826, under which he was taken on the 30th of April following, by the sheriff of Greenbrier, and committed to the jail of that county. At the election in Nicholas county in April 1829 for a delegate to the general assembly, an equal number of votes was given for Stuart and the opposing candidate, and the high sheriff giving the casting vote in favour of Stuart, he was returned duly -elected. In November following, being shortly before the session of the general assembly, Stuart presented a petition to a judge of the general court, stating that he was advised that it was his duty to attend the legislature, and praying a writ of habeas corpus. The writ was awarded him, and upon the return thereof the judge ordered that he should be delivered from the custody of the jailor, according to the act of assembly. .He failed, however, to return to jail after his privilege as a member of assembly had expired; and on the first of May 1830, a justice of Greenbrier issued an escape warrant against him; but it seems that he was never again taken.</p> <p>After the writ of capias ad satisfaciendum had been levied, Christopher Stuart, the brother of David, died, having made a will bearing date the 24th of December 1825, by which, after directing that all his just debts should be paid, he gave to his brother David a lot in the town of Summersville. At January term 1826 of Nicholas county court, the will was admitted to record, and David Stuart qualified as executor thereof. Very soon after his testator’s death, David Stuart conveyed the lot in Summersville to Samuel Neil. The deed bears date the 10th of January 1826, was admitted to record in Nicholas county court at February term, and purports to be for the consideration of 800 dollars.</p> <p>In August 1833, Hamilton's executors filed a bill in the circuit court of Nicholas against David Stuart in his own right and as executor of Christopher Stuart, and against Samuel Neil, alleging that the testator’s personal estate was more than sufficient to discharge his debts; claiming a lien upon the lot in Summersville by virtue of the proceedings before mentioned; charging that the deed to Neil was fraudulent'in fact, and asking a decree for the sale of the property. The defendants answered, denying all fraud, and alleging that the deed was made to satisfy a Iona fide debt which Neil had discharged as the surety of Stuart. They denied that the plaintiffs had any lien by virtue of their decree or execution, but insisted that if any such lien existed, it was only on a moiety. Depositions were taken by the plaintiffs, proving that the debt could not be made out of Stuart except by a sale of the property sought to be subjected ; that no one occupied the premises; and that the lot was cultivated by a tenant, whose rent was only 3 or 5 dollars a year.</p> <p>The circuit court was of opinion, first, that although the ca. sa. had been levied, yet as the debtor had escaped, the executors might again resort to an elegit; and secondly, that there was a lien still remaining by virtue of the levy of the ca. sa. “ To hold,” said, the judge, “ that the creditor has lost the ca. sa. lien, would be permitting the debtor to take advantage of his own wrong, and depriving the creditor of a right which the law gives him, and which is a perfect right, so far as any action is required from him ; for on procuring his ca. sa. to be served, his power is at an end. It is true that he cannot ordinarily enforce the lien the law has thus given him, until the happening of a certain event depending on the will of the debtor, that is, until the act of insolvency; but if that act of insolvency is prevented by the unlawful escape of the debtor, the creditor should not be prejudiced by it. He has done all that the law requires of him. The postponement of the consummation of his lien, so long as the debtor chooses to remain in custody., is intended for the benefit of the debtor alone ; and this he waives by his escape.” The circuit court therefore adjudged the deed to Neil to be null and void, and decreed a sale of the house and lot. From this decree an appeal was allowed.</p>

The reporter has received in this case no copy of the record; but the president has furnished him with the following statement. ' Bird, with a view to hinder and defraud his creditors, conveyed his slaves to James, and took his bond for 8000 dollars as the price of them. He filed a bill (which was sworn to) to set the transaction aside, on the ground that it was not designed as a sale, but merely to save his property from sacrifice.

<p>Debt in the circuit court of Monroe, by Addison Dunlap as assignee of Charles Lewis, against Andrew Beirne junior and -Andrew Beirne. • The declaration alleged that the defendants, on the 12th of June 1833, by a writing obligatory, promised that they or either of them would pay, on or before the 1st of September 1834, to Charles Lewis the sum of 813 dollars 79 cents in notes of the United States bank or either of the Virginia banks, and that afterwards, to wit, on the 2d of July 1833, the said Charles Leiois by his indorsement on the said writing obligatory, assigned and transferred the same to the plaintiff, of which assignment the defendants had notice. It then alleged that the defendants or either of them had not paid to the said Charles Lewis or to the plaintiff the said sum of 813 dollars 79 cents in notes of the United Slates bank or either of the Virginia banks, on or before the first day of September 1834, or at any other time whatever: by reason whereof’ action had accrued to the plaintiff to demand and receive of the defendants the said sum of 813 dollars 79 cents in specie. And in conclusion it averred that the defendants had not paid the said sum of 813 dollars 79 cents in specie to the plaintiff. The defendants demurred generally to the declaration, and upon argument of the demurrer, the same was overruled, and judgment rendered for the debt in the declaration mentioned, with interest thereon and costs. To this judgment a supersedeas was allowed.</p>

<p>An act of assembly for sale of an infant’s lands, not proved to have been obtained by fraud, is valid.</p> <p>No averment, against the facts stated in the act, can be made.</p> <p>The sales in such cases may be public or private.</p> <p>The sales, to the tenants who, before the lands were put up, agreed to give the prices contained in a previous estimate made by the trustees, were good, as nobody bid against them.</p> <p>The trustees might sell by agents.</p> <p>A small excess raised, beyond the sum required by the act, did not avoid the sales.</p>

<p>By deed dated the 23d of October 1829, John Brawley conveyed to A. 8. Fulton a tract of land containing 279 acres, situate in Wythe county, upon trust for the purpose of securing to David Pierce a debt of 419 dollars, with interest "from the date of the deed. By another deed dated the 19th of May 1832, Brawley bargained, sold and conveyed the same tract of land to John Catron, for the consideration of 700 dollars, expressed in the deed to have been paid to him by Catron.</p> <p>In July 1833, Brawley exhibited a bill in the circuit superiour court of law and chancery for Wythe county, against the widow, heirs and administrator of Catron, who was then dead. The bill recited the execution of the trust deed made to,secure the debt due to Pierce. And then it proceeded to state, that in 1832 the complainant was arrested under two writs of capias ad satisfaciendum, issued at the suit of one Thomhrough, for debts amounting, with the interest and costs, to about 100 dollars. That while complainant was in pz'ison under those writs, Catron, who was his son inlaw, executed to Pierce his owzijzote, with John Jackson as his surety, for the amount then due on the deed of trust, and by that means obtained the benefit of said deed. That complainant, being unable to satisfy ThomhrougWs executions, was compelled to deliver in a schedule of Ills property, and take the benefit of the act for the relief of insolvent debtors; the amount of property contained in the schedule, besides the land, being about ® 1000 dollars. That sometime after complainant been so discharged from jail, Catron required the trustee to advertise and sell the land, and the trustee did advertise the same accordingly: but on the day appointed for the sale, Catron proposed to complainant, that if he would convey the land to him, and give him the benefit of the property contained in the schedule, be (Catron) would discharge the claim under the trust deed, pay Thombrough's executions, settle two other debts of complainant due to other persons, amounting to about 120 dollars, and discharge a further debt of GO dollars which complainant owed to John Jackson; and that he would support and maintain the complainant during his life, in a comfortable manner, and two unmarried daughters of the complainant until they should marry. That complainant acceded to the proposition, and conveyed the land to Catron, and gave him the benefit of the property contained in the schedule. That there was an omission to state this contract in the deed to Catron; but he never, during his life, denied the existence of such contract. That the executions in favour of Thombrough had been discharged, and the other claims satisfied by Catron, by taking up the obligations of complainant, and executing bis own in their place. That during Catron's life, complainant had no reason for dissatisfaction in respect to the treatment and support of himself and his daughters ; but now that Catron was dead, complainant had no assurance that such support and maintenance would be continued ; and it was doubtful whether the estate would prove solvent. Wherefore the bill prayed that the widow, heirs and administrator of Catron might be made defendants, and compelled to answer the allegations thereof; that the court would either set aside the contract altogether, and restore to complainant all his property and land, or that the heirs and representatives of Catron might be compelled to give full assurance that they would maintain and support complainant and his daughters according to the agreement; and general relief.</p> <p>The heirs and the administrator of Catron answered severally, disclaiming all knowledge of the alleged contract between Catron and the complainant, and calling for proof thereof. The widow never answered the bill. In June 1836, Brawley filed an amended and supplemental bill, in which he charged, that the transaction between David Pierce, Catron and John Jackson, by which Catron and Jackson became bound for complainant’s debt to Pierce, secured by the trust deed, was entered into without the knowledge or consent of complainant, and that Jackson's subsequent payment of the money to Pierce created no specific lien on the land, even in the hands of Catron or his heirs, much less could it operate to destroy complainant’s rights : that if the contract between Catron and the complainant should be rescinded, complainant would be bound to refund to Jackson the money he had paid; but if the contract were not rescinded, then Jackson's demand would be the proper debt of Catron, and should be postponed to complainant’s claim on the land. The bill alleged, that in September 1834, Jackson had obtained a 'decree in the circuit superiour court of Wythe county, for the sale of the said land to satisfy his claim against Catron, and at the sale made under that decree had himself become the purchaser of the land. Wherefore the bill prayed that Jackson might be made a party defendant thereto, as well as to the original bill, and be compelled to answer the same on oath; that the relief asked in the original bill might be granted to complainant, and such other relief against Jackson as might be just.</p> <p>The decree referred to in the lastmentioned bill was exhibited therewith. It appeared by that decree, that Jackson's demand against Catron was for the amount of two notes, one for the sum of 428 dollars 80 cents, the other for the sum of 69 dollars 26 cents, with interest.</p> <p>Jackson answered, that he became bound as the surety of Catron to Pierce, for the debt secured by Brawley's trust deed, with the consent of Brawley, who was fully cognizant of the transaction between Pierce, Catron and respondent. That the debt to Pierce was in part of the purchase money agreed to be paid by Catron for the land. That after Catron's death, respondent, finding that his estate would prove insolvent, paid the debt to Pierce, and instituted a suit in chancery, and obtained a decree for the sale of the land, to satisfy that debt, and another claim which respondent held against Catron, for a debt originally due from Brawley, which Catron had also agreed to pay as part of the price of the laud. That the land was sold under the decree obtained by respondent, and the proceeds were insufficient to satisfy the debt due him. That respondent neither knew nor believed the existence of any contract by which Catron was to support the complainant and his two daughters, in addition to discharging the debts of complainant, and therefore he could not admit the allegations of the bill in respect to such contract j and even if such contract were entered into, he insisted that it could not be enforced in equity; and as it had never been reduced to writing, he relied upon the statute of frauds as a bar to any claim thereunder.</p> <p>Several witnesses, examined on behalf of the complainant, deposed that Catron had repeatedly admitted the existence of an agreement between Brawley and himself, by which he was to support Brawley during his life, and two of his daughters until they should be married, and moreover pay debts of Brawley amounting to about 800 dollars, in consideration of Brawley's conveyance of his land, and relinquishment of his interest, in the property contained in his schedule, to Catron. According to the testimony of two of these witnesses, Brawley and his daughters were to have a room in the house to occupy as their own, with the privilege of free access to the smoke house, meal tub and stable, at all times.</p> <p>The cause was heard in September 1836. Whereupon the chancellor, — declaring his'‘opinion that the parol evidence introduced in the case went substantially to alter and add to the agreement appearing on the face of the deed to Catron, and ought therefore to be rejected ; and that the plaintiff’s case, as set out by himself, was moreover of such a suspicious character as not to deserve the countenance of the court,' — decreed that the plaintiff’s bill be dismissed with costs. From which decree Brawley appealed to this court.</p>

<p>If the verdict finds for the libellants, “ the vessel, tackle, apparel and cargo, except that part of the cargo upon which the duties have been paid,” it is toOj uncertain, and will be set aside.</p> <p>Nor can the uncertainty be cured by reference to the answer.</p> <p>Where the master applied at the naval office in Norfolk to enter the ship and cargo (for a small part of which the duties were paid down by the owners) and offered to give bond w,ith security for the payment of the duties upon the goods belonging to persons in Petersburg and-Richmond, but the naval officer refused, and directed them to be landed as a deposit for the duties; in doing which it was necessary to take out those belonging to Norfolk first, and lay them on the wharf; from which part were afterwards carried away by the owner of them (who had several times offered to pay the duties) without the knowledge of the master: It was not a breach of the law, which forfeited the ship and cargo.</p>

William, Bentley, as administrator of William Ronald, filed a bill, in the high court of chancery, against Mayo and others, stating, that, having been sued by Mayo, in the county court of Powhatan, upon a bond, he instructed his attorney to set aside the office judgment and plead payment, intending to add a plea of fully administered after-wards.

<p>(Absent Cabell, J.)</p> <p>A special plea is offered, and the plaintiff objects to its being filed, but the ground of his objection does not appear. The record only shews that the special plea was filed a year after the general issue had been pleaded. An appellate court cannot say that the plea was improperly received.</p> <p>A defendant is not ¿inhibited from pleading specially what he might give in evidence under the general issue, unless the matter pleaded amounts to the general issue, that is to say, denies the allegations which the plaintiff is bound to prove. Where the cause of action is avoided by'matter ex post facto, such matter may always be specially pleaded, whether it could be given in evidence under the general issue or not.</p> <p>Where a plea in bar is to the whole declaration, and upon a demurrer the court is of opinion that the plea is sufficient, unless the plaintiff move for leave to withdraw his demurrer and reply, the demurrer will be overruled, and final judgment entered for the defendant.</p> <p>A lease is made of a lot of land with all the appurtenances thereunto belonging, for four years, and the defendant agrees to pay the plaintiff 22 dollars a year, and at the expiration of the four years, to return the property to the plaintiff with all of its appurtenances. On the premises there were, at the time of the lease, a grist mill and carding machine, which during the term were consumed by fire, either accidentally, or by some unknown, incendiary. Held, the contract, according to its fair meaning, could not be considered as binding the tenant to rebuild.</p>

This was a proceeding by foreign attachment, commenced in July 1841, in the Circuit court of Jefferson county, by Jesse Schofield against Luther J. Cox as an absent debtor, and Benjamin Ford and Daniel Snyder home defendants, having estate of the absent debtor in their hands. In the progress of the cause, J. & A. H. Herr were, on their petition, admitted as parties defendants, and claimed the fund in the hands of Ford & Snyder, under an assignment from Cox.

<p>1. The plea of “non damnificatus” is a good plea, only where the condition is to indemnify and save harmless. The plea should go to the right of action, not to the question of damages.</p> <p>2. Wherever the plea of “ non damnificatus” is a good plea, it is equivalent to the plea of “ conditions performed.” And if this last mentioned plea has been filed in a cause, it is no error to refuse the application at a subsequent term, to file the former.</p> <p>3. A testator devises a tract of land for the payment of a particular debt, and the land is sold; but the creditor receives only the first payment of the purchase money, and refuses to take the balance, which is applied to the payment of other debts of the testator. Whether the land was the primary fund for the payment of the particular debt, or not, that debt was in fact the debt of the testator’s estate, for which a legatee was responsible under his refunding bond.</p> <p>4. In an action by an executor upon a refunding bond, he offers in evidence the record of the cause in which the decree was rendered against him, on account of which his action is brought: and he then offers in evidence the execution which had issued on the decree, and the return thereon ; which were objected to by the defendant, but were admitted by the Court. To the admission of the evidence the defendant excepted, but the exception did not contain the execution. Held. That the relevancy of the evidence being obvious without an inspection of the execution, it was not essential that it should be contained in the bill of exceptions.</p>

Case, in the circuit court of Fayette, by Joseph Young against Joseph M’Nutt, for slander in charging the plaintiff with perjury. Issues were joined on the plea of not guilty and a special plea of justification. At the trial, the plaintiff offered evidence to prove that the defendant had, at various times, declared that the plaintiff had sworn to a lie, in the case described in the declaration ; and there rested his cause.

This was an action of trespass on the case in the Circuit court of Patrick county, brought by Abram Brown against Jacob Clark, for a nuisance in erecting a mill dam on his own land, whereby the water is thrown back and overflows the adjoining land of Brown. Issue was joined on the pleas of not guilty, and the statute of limitations.

Supersedeas to a judgment of the circuit court of Harrison. The reporter has been furnished with no copy of the record in this case, but is enabled to make the following statement from the opinion of one of the judges. Fawkes sued out of the county court of Harrison, on the 30th of August 1822, a capias ad satisfaciendum against Davison, who, by virtue thereof, was arrested and committed to jail.

This was an action of debt in the Circuit court of Halifax county, by the administrator of John Annatt against the executor of Jesse Rice. The action was founded on a bond for 109 dollars 38 cents, dated and payable on the 13th of May 1829, executed by Jesse Rice to John Annatt; aud the only defence was payment by the defendant’s testator.

<p>The case is stated by Judge Moncure in the commencement of his opinion.</p>

Tn May 1786, John Hague, as well on behalf of himself as of the commonwealth, filed a libel, in the court of admiralty, against the sloop Nancy, Henry Stratton, master, for a breach of the then revenue laws of the state, charging that the said sloop laden with a chariot, or phceton, and harness, and other articles, came from Philadelphia to James river, in April 1786; and that the master failed to make an entry with the naval officer, until after seizure of the vessel and…

<p>Id action by owner against bailee of a slave, to -recover damages for his loss, declaration contains three counts: the first is a common count in trover: the second, alleges, that plaintiff being an infant, and known by defendant to be such, one J. S. agreed with defendant to hire plaintiff’s slave to him for a year, to be employed on his farm, according to the usage of the country concerning similar bailments, defendant agreeing to return the slave at the end of the year, and the amount of the hire being fixed with reference to the employment of the slave in agricultural labour in the county; that the slave was delivered to defendant, and employed on his farm, until &c. when defendant, contrary to Ins agreement, and to the usage of the country in like cases, and without the knowledge or consent of J. S. or the plaintiff, put the slave on board a fiat boat in Ohio river, to aid in navigating the same to Neto Orleans, and carried him beyond the limits of the county, whereby defendant failed to redeliver the slave, as he was bound to do by his agreement, and the slave was wholly lost to the plaintiff: the third count does not allege that the slave hired was to be employed in agricultural labour ih the county, nor that the amount of the hire had reference to such employment, but in other respects is substantially like the second: defendant demurs generally to the whole declaration, and also to the second and third counts: Held, 1. the second and third counts are not counts in assumpsit, but in tort, and are well enough, joined, with the count in trover. 2. The second and third counts are sufficient on general demurrer.</p> <p>Bill of exceptions by defendant states, that he objected to the admission of certain evidence, “on the grounds and reasons set out in the third instruction asked by defendant;” the instruction so referred to is contained in another bill of exceptions: in appellate court, defendant objects that such reference made in one bill of exceptions to the other is irregular: Held, there is nothing in the objection.</p> <p>Subsequently to a bailment of a slave for hire, the bailee, being about to carry the slave with him on a voyage down the Ohio and Mississippi rivers, acknowledges to third persons, that he has no authority to do so, and that he will be liable in case the slave be lost: Held, such admissions of the bailee are competent evidence against him, in an action brought by the owner to recover damages for the loss of the slave, who was drowned in the course of the voyage.</p> <p>In action to recover damages for the loss of a slave hired, who was drowned in the course of a voyage down the Ohio and Mississippi rivers, on which he had been carried by the bailee, plaintiff, with a view to shew that the slave was hired for the purpose of being employed in agricultural labour in the county of the bailment, offers evidence that the amount of the hire reserved was the usual rate for slaves hired to that employment; that slaves employed in voyages down the Ohio and Mississippi, and slaves taken from the county of the bailment to a neighbouring county, and there hired for the purpose of being employed in manufacturing salt and digging coal (which were regarded as occupations of great danger) brought much higher rates of wages than those hired in the county of the bailment, for agricultural and domestic purposes; and that so far as the witnesses had hired slaves to be employed in the neighbouring county, and so far as they had hired slaves to be employed in the county of the bailment for agricultural purposes, they had stipulated for the place of employment, as well as for the amount of wages: Held, the evidence is relevant and admissible.</p> <p>If a slave be hired with the understanding that he is to be employed in agricultural labour, and the bailee employs him as a boatman, in which occupation he is drowned, the bailee will be liable to the owner for his value.</p> <p>A general bailment of a slave for hire, without express stipulation or restriction as to the nature or place of employment, does not invest the bailee with all the rights of the master for the period of bailment: he has no right to send or carry the slave upon a dangerous voyage to another state; and if he does so, and the slave is accidentally drowned in the course of the voyage, though within the limits of this state, and though no immediate negligence appear on the part of the bailee, he will be liable for the value to the owner.</p> <p>The accidental loss of a slave hired, occurring in an employment of the slave which the bailee had no right to make, amounts to such a wrongful conversion by the bailee, as will sustain an action of trover by the owner.</p>

<p>The royal assent to the act of 1769, concerning executions upon judgments on forthcoming bonds, inferred from circumstances.</p> <p>After such judgment the court would presume that the royal assent was proved in the district court.</p> <p>Fornj of declaring the royal assent, or dissent, to an act of assembly, before the revolution.</p>

John Moving, in 1793, filed a bill in the high court of chancery, stating himself to be eldest son and heir at law to William Moring, who was eldest son and heir at law to William, Moring, son and devisee of Christopher Moring, the elder; and that the said Christopher Moring, on the 27th of December, 1751, made his will; and, thereby, among other things, bequeathed as follows, “ I give to my sons Christopher Moring and William Moring all the rest of my estate, that I have…

In June 1845 Sims as administrator of Martin, instituted an action of detinue against Eustace Hunt for the recovery of a number of slaves. The process does not seem to have been served upon Hunt, and an attachment to enforce an appearance was issued and levied on slaves. A judgment was confirmed against Hunt in the office; and at the October term of the Court his death was suggested.

<p>In June 1845 Sims as administrator of Martin, instituted an action of detinue against Eustace Hunt for the Recovery of a number of slaves. The process does not seem to have been served upon Hunt, and an attachment to enforce an appearance was issued and levied on slaves. A judgment was confirmed against Hunt in the office ; and at the October term of the Court his death was suggested. At the May term 1846 the suit was revived against Coleman as administrator with the will annexed of Eustace Hunt, upon a scire facias said to be issued on the 11th of March, but it is not in the record, and the clerk of the Circuit court certified that it was not among the papers in the cause in his office. At the May term of the Court, Coleman appeared and pleaded the general issue, and offered three special pleas, which were objected to by the plaintiff, and rejected by the Court. To the rejection of which the defendant excepted. The third plea avers that after the suit was brought, and between the death of Hunt and the issue of process to revive the suit against the defendant, he had delivered all the slaves but one to the plaintiff, and that the plaintiff had accepted them. The first and second pleas as to the slaves claimed in the declaration, aver that after the suit was brought and between the death of Hunt and the issue of the process to revive the suit against the defendant, he had delivered all the slaves but one to the plaintiff who had accepted them ; and as to that one the defendant did not detain him.</p> <p>At the May term of the Court the cause was tried, when the jury found a verdict for the plaintiff for all except one slave, and his damages were assessed at 2000 dollars. Whereupon the defendant moved the Court for a new trial, but the plaintiff releasing 500 dollars of the damages, the Court overruled the motion, and gave a personal judgment against the defendant for the slaves and 1500 dollars damages. But the plaintiff afterwards released on the record the slaves and their alt6matlVe VallIeS'</p> <p>The defendant applied to this Court for a supersedeas, which was awarded.</p>

Self, upon the 30th of January, 1790, sued a writ of replevin in the county court against Turberville for a return of seven slaves taken upon a distress for rent. The writ commanded the sheriff, “ that justly and without delay you cause to be replevied to Stephen Self his negroes which John Turberville hath distrained, took and unjustly detaineth as is said, &sc.” Upon this writ Self on the 29th of May, 1790, gave the usual replevin bond in such cases.

This was a presentment in the Circuit court of Cab-ell county at the September term 1848, against Everett Feazle, for unlawful gaming by playing at a game of cards in the storehouse of Irvin Lusher, a public place in the county of Cabell.

The record disclosed in substance the following case. Robert Draffin, the owner of certain land on Ivy creek in the county of Albemarle, conveyed it in the year 1S05, in trust to secure the payment of certain debts, amongst which was a debt to William Brown Sf Co. The land was sold by the trustee, purchased for the firm of Brown Draffm paid the bond of 1200 dollars in 1816, and afterwards paid 800 dollars, part of the bond for 1350 dollars.

This was an indictment for a wilful trespass to personal property in the Circuit court of Preston county : and the facts were agreed as follows.

<p>Love filed a bill, in the high court of chancery, against Ross, Shore & Co., stating, that, upon the 5th of August, 1779, articles of affreightment of the plaintiff’s brigantine, the General Scott, were entered into between the plaintiff and the defendants in writing, thereto annexed. That independent of those articles, it was further stipulated, by parole, that John M'George, the agent of the defendants, should sell the plaintiff’s'cargo and do the other business of the vessel in St. Eustatia, free from commission, provided she arrived at that port, and load her for Hispaniola, as far as it was necessary and adviseable for the joint interest of the defendants and the plaintiff, and as far as it could be done, on freight, for the plaintiff’s interest. That it was also promised that Mr. Douglass, another agent of the defendants, should be in Hispaniola, and transact the plaintiff’s business there, in selling the cargo, and purchasing a return cargo for Virginia, free of commission, provided he was not taken, by the enemy, on his way thither. That the plaintiff entertained great hopes of profit from the voyage; and therefore agreed to order the vessel to Hispaniola, and to give up the freight of one half of her hold, from Hispaniola to Virginia, in consideration of such important services : which was all the plaintiff was to receive for the freight of half the hold, from St. Eustatia to Hispaniola, except £> 830 paper money, worth only 1276 libs of tobacco, although it would have cost the plaintiff 360,000 libs of tobacco to have insured the vessel from the former to the latter place. That after the brigantine was loaded and nearly ready for sea, the defendants refused to give the instructions to M’ George and Douglass ; but the plaintiff still hoping they would comply, sent the vessel down the river; yet, hearing nothing from the defendants, he was obliged to relinquish the scheme, and sell the freight of that half of the vessel, which had been retained for himself, to Braxton, at less than a moiety of the profit he would have made by the voyage, if the defendants had complied. That the defendants brought suit and obtained judgment against the plaintiff in Henrico court, upon an account in which the plaintiff is charged with 1025J gallons of Taffia rum, although he had, in fact, but 982 gallons. The bill therefore prays, that the judgment may be enjoined; the error as to the Taffia rum may be corrected; the defendants made to account with the plaintiff for the freight of one half of the said vessel from Hispaniola to Virginia ; and that the plaintiff may have general relief.</p> <p>The answer admits the written articles of affreightment; and avers that they contain the whole agreement between the parties. That the defendants laded the brig with tobacco, agreeably to the articles of affreightment, and directed M'George to assist the captain with his advice: That the defendants fully performed the said articles of affreightment, without delay, although the plaintiff was constantly disputing about them, to the injury of the defendants: That the vessel was not got ready for sea, until near four months after the stipulated time. Denies the verbal stipulations set forth in the bill, respecting the services of M'George and Douglass; or that those services were meant as a consideration for the freight of the vessel from Hispaniola to Virginia: Believes, that the plaintiff’s sale of half the freight of the vessel to Braxton, arose from the plaintiff’s want of funds to pay disbursements, and purchase a return cargo : That the suit in Henrico was long depending, and defended by the complainant with his utmost power.</p> <p>Upon the coming in of the answer, the chancellor dissolved the injunction, except as to £20. 16. There was a general replication, afterwards, filed to the answer; and commissions awarded to take depositions.</p> <p>W. Hay, a subpartner of the defendants, (but examined by consent,) states, that the suit in the county court had been long depending, and was defended by counsel for the plaintiff: That the defendant’s account for the Taffia rum was correct: That the plaintiff’s counsel insisted, on the trial, that the £830, (being the £ 1000 in the charter party, proportioned,) for the return freight, was not enough for the services performed; and that the articles of affreightment were laid before the jury.</p> <p>Irving — Proves that M' George was a merchant of character. That insurance from St. Eustatia to Virginia was from 25 to 33£ per cent. That the plaintiff sold the brigantine, General Scott, on her return from Hispaniola, for upwards of 360,000 libs tobacco. That Braxton's cargo of coffee cost 9 sous, except 832 libs at 6 sous. That Braxton agreed to ship 80 hhds. of Taffia, and 4000 libs coffee; and to give the plaintiff one half of the same, for the freight home. That the brigantine would probably have held 140 to 160,000 libs of coffee.</p> <p>" Cowper — That in spring 1780, freight to St. Eustatia and the neighbouring islands, was half the cargo shipped ; the return, freight to James river on rum and sugar, 20 per cent.; and, on dry goods, 10 per cent.</p> <p>Perkins — That the brigantine left Ozborne’s, on her way to sea, upon the 9th of December, 1779.</p> <p>Douglass — That he, in 1779 and 1780, did business for the defendants, in Curracoa: and that no proposition was ever made to him to go to Hispaniola.</p> <p>Nicolson — That Ross, Shore &f Co. made many charters of affreightment, which were more advantageous than that with the plaintiff, they having the liberty of one half the hold freight free back, without a premium, except salt.</p> <p>There were sundry other depositions taken; but they did not vary the case materially.</p> <p>The exhibits were, 1. A letter from Camphell, the master of the brigantine, dated the 11th of April, 1780, at Aux Cayes, which says that he shall sail to-morrow for Virginia, loaded with coffee, taffia, sugar and molasses. 2. A letter of the 7th of August, 1779, from the plaintiff to J. Hay, one of the partners of Ross, Shore Co., which says Mr. Ross had promised that he might have £ 1000 for that defendant’s part of the return freight, and wishes him to advance some as directed in the letter. 3. A letter from the defendants to M’George, dated 1st December, 1779, saying that they send a copy of the charter party; and have promised his good offices to captain Camphell, the master of the brig, which he depends upon ; finding fault with Love's delays, &c.; and advising him to be upon his guard. 4. A letter, from David Ross, to Love, dated the 3d January, 1780, which says, that the articles of affreightment are explicit; and that there is no room to dispute about any thing contained in them; complains that the vessel has not proceeded to sea ; and protests for all damages the defendants may sustain in consequence of it. This letter is in answer to the following letter, that is to say: 5. A letter from the plaintiff to Ross, in which he states his own ideas relative to the artides of affreightment; and of the services to be performed in lieu of return freight. 6. A letter from the plaintiff to David Ross, dated the 9th of December, 1779, complaining of the want of liberality in John Day’s construction of the articles of affreightment. 7. The articles of affreightment, signed by the parties, in the following words: “ Articles of agreement between Alexander Love, sole owner of the brigantine General Scott, now at Ozborne’s, and Ross, Shore Sp company. That the said brigantine shall be ready compleated and fitted for sea by the 20th September next, with four carriage guns, four swivels, with ammunition for the same, and sufficiently manned and victualled. That the said company will load the said brigantine with a cargo of upland tobacco for the island of Curracoa, or St. Eustatia, as the said company shall direct, and pay, for freight, one half of the said cargo at the port of delivery, where the utmostdespatch shall be given in receiving the tobacco. The said company are to pay half the craftage on board, and half the duties here and in the West Indies. On the arrival of the said brigantine at St. Eustatia or Curracoa the company’s factor, in conjunction with the captain, may determine whether to send a small cargo of goods, or send cash, to Hispaniola, (to purchase her return cargo on joint account, or separate account, as they may agree,) which is to consist of such articles as the said factor and captain shall think best for the interest of the concerned, allowing to the brigantine the usual freight on the goods carried to Hispaniola from Statia or Curracoa; but nothing to be allowed for money. The said companies agent in Statia or Curracoa, where she may happen to arrive, shall be directed to render the captain every good office in advising him for the best. That in case it shall so happen that the said captain is either disabled for want of money, or chooses to decline shipping one half of her return cargo, the said company may, if they please, fill her up, and for all that is over and above their one half of her burthen, they shall pay the said Alexander, as freight for the said surplus, at the rate of 10 per cent, on the sales here, or a tenth part of the goods here. The surplus part of the cargo to be distinguished by a separate bill of lading signed in Hispaniola. The said company will pay half the port charges in Hispaniola, and the cargo shall he chargeable with no more commissions than is usually paid there. Should the brigantine be loaded fully back on the joint account of the said Alexander and the said company, the cargo to be delivered, in like manner, on its arrival here; and the said company moreover agree, that on delivery of the said brigantine’s cargo here, or any safe port to the north or south, they will pay the said Alexander, one thousand pounds continental money, provided the brig is of the burthen of 140 hogsheads of tobacco, and so in proportion. for a greater or less burthen. In witness whereof we have hereunto set our hands and seals this fifth day of August, 1779.” 8th. A copy of an account between Richards &f Coleman and the plaintiff. 9th. An account between the plaintiff and Duncan Campbell, the master of the brig. 10th. An award between Richards fy Coleman and the plaintiff. 11th. A copy of an account between the plaintiff and the defendants. 12th. A copy of an account between the plaintiff and M'George. 13th. A copy of the defendants’ judgment, in Henrico county court, against the plaintiff, for £211. 14. 10. and costs.</p> <p>The high court of chancery dismissed the bill, upon a hearing, with costs; and Love appealed to the court of appeals.</p>

At the October term for 1849 the grand jury for the county of Cabell presented Jerome Shelton, Ballard McComas, David Shelton, Rowland Bias, Johnson Rusher and Thomas A. Childers for unlawful gaming by betting on a horse race, at a race field on the lands of Thomas McComas in the county of Cabell.

Alonzo G. Bell was indicted in the Circuit court of Campbell county, for stealing a horse. Held: and no such indictment was found at the October term 1850, of the Circuit court of Campbell county. The record states in its commencement, the name of the Court, and the term, correctly; and these are also stated correctly when recording the fact that the indictment was found against the prisoner.

After the decision by the court of appeals, in December 1825, of the case of Poage v. Bell and others, reported in 3 Rand. 586. Held: being of opinion that in a court of law the action was only maintainable by the plaintiff’s trustee. To this opinion, and also to an opinion given by the circuit court as to the effect of the statute of limitations, the plaintiff filed a bill of exceptions.

In a suit brought, in the high court of chancery, by William H. Macon, as administrator of Sarah Macon his wife, and of Mary Ambler the widow of Edward Ambler, against the surviving executors of the said Edward Ambler, the executors of Robert Carter Nicholas, and John Ambler, the case appeared to be as follows : Edward Ambler died, in 1768, seized in fee of an estate in Jamestown $ a plantation, not far from thence, on Powhatan swamp; an estate in Hanover called the Cottage;…

In the Circuit court of Madison county at its May term 1851, Edmund Clore was indicted for the murder of Thomas Carpenter. At the same term of the Court he offered two pleas in abatement. In the first he alleged that he was committed to prison by Thomas A. Gordon Esq. a justice of the peace for the county of Madison, without any enquiry or examination into the truth of the offence wherewith he was charged or for which he was committed.

On the 6th of January 1802, Thomas King of the county of Washington made his will, by which, after giving to his wife one bed with its apparatus, and one third of the rents and profits of all his houses and lots in the town of Fincastle, during her life, and to his sons William, James and Samuel 20 dollars each as a remembrance, after all his just and legal debts should be paid, which debts were directed to be paid out of the rents of his estate in Fincastle, he devised and…

Lawrence Tremper, who sued for the benefit ofSheney, brought debt in the circuit court of Augusta, against Robert Hemphill, Joseph Points junior and Walter H. Tapp, upon the following obligation: “ $250. Nine months after date, we bind ourselves, our heirs &c. to pay to Lawrence Tremper, his heirs or assigns, the just and full sum of two hundred and fifty dollars, for value received of him. As witness our hands and seals this 24th of April 1832.

<p>The case is sufficiently stated in the opinion of the Court delivered by Field, J.</p>

Debt upon a judgment of the circuit court of the United States for the district of Columbia, held at the city of Washington. John B. Gorman declared in that court against Joseph Draper, in assumpsit (as on a bill of exchange) upon a check drawn by the defendant, on the 28th of February 1831, upon the bank of Washington for 1000 dollars payable to George Milburn or order, and endorsed by Milburn to the plaintiff, which check had been dishonoured.

This was an indictment for perjury in the Circuit court of Wirt county against Nelson A. Pickering. The defendant demurred to the indictment, and the Circuit court with his consent adjourned to this Court eight questions. Of these the sixth was, Does the materiality of the defendant’s evidence given before the grand jury sufficiently appear in the indictment? And the eighth was, What judgment ought to be rendered in this case upon the demurrer to the indictment ?

<p>1. The mere user of a road by the public for however long a time, will not constitute it a public road.</p> <p>2. A mere permission to the public, by the owner of land, to pass over a road upon it, is, without more, to be regarded as a license; and revocable at the pleasure of the owner.</p> <p>3. A road dedicated to the public must be accepted by the County court upon its records, before it can be a public road.</p> <p>4. If a County court lays off a road before used, into precincts, or appoints an overseer or surveyor for it, thereby claiming the road as a public road; and if after notice of such claim the owner of the soil permits the road to be passed over for any long time the road may be well inferred to be a public road.</p>

<p>At the April term for 1851 of the Circuit court of Henrico county, Nicholas O. Thompson was indicted for the murder of his wife Lucy Ann Thompson. He was tried for this offence at the same term of the Court, and was found guilty of murder in the second degree ; and the period of his confinement in the penitentiary was fixed by the jury at six years.</p> <p>After the verdict was rendered the prisoner moved the Court for a new trial, upon various grounds founded on the conduct of the jury during the trial. These, and the facts on which they are based, are all stated by the Judge in delivering the opinion of the Court. The Court below refused to grant the new trial, and rendered a judgment upon the verdict. And thereupon the prisoner applied to this Court for a writ of error, which was awarded.</p>

<p>(Absent Brooke and Cabell, J.)</p> <p>Where a vendee is in possession of land under a conveyance with general warranty, and the title has not been questioned by any suit prosecuted or threatened, such vendee has no claim to relief in equity against the payment of the purchase money, unless he can shew a defect of' title respecting which the vendor was guilty of fraudulent misrepresentation or concealment, and which the vendee had at the time no means of discovering.</p> <p>What shall be deemed an acceptance by a vendee, of the conveyance made to him by the vendor. i</p>

<p>The case is fully stated in the opinion of the Court delivered by Judge Thompson.</p>

<p>The case is fully stated in the opinion of the Court delivered by Judge Thompson.</p>

On ilie 9th of December 1833, Samuel Stephenson, Sarah Stejphenson, Guy P. Matthews, Jane Matthews, and Orestes, John C., Julia Ann, Robert M., Andrew D., Mary, Martha, Alexander II. and Patrick H. Wilsoti, entered a caveat iti the land office, against issuing a grant to Ruel Daggs junior, on a survey of 170 acres, made the 16th of January 1833, oflands in Kanawha county, by virtue of an entry of the same date; it being stated in the caveat, that the caveators, as the heirs…

<p>Bolton Jackson recovered the following judgments in the court of the United States for the fifth circuit and eastern district of Virginia, to wit: on the 31st of May 1811, a judgment against Conally Findlay surviving partner of Conally Findlay Sp Company, and Richard Hazlerig and John Donahey the sureties for his appearance, for 1690 dollars 15 cents, together with 154 dollars 21 cents damages, and costs: on the same day, another judgment against the same persons for 1690 dollars 14 cents, and costs, to be discharged by the payment of 690 dollars 14 cents, together with 253 dollars 90 cents damages, and the costs: and on the 29th of May 1812, a judgment against Conally Findlay surviving partner as aforesaid, and Richard Hazlerig and Benjamin Eslill the sureties for his appearance, for 1690 dollars 14 cents, together with 354 dollars 90 cents damages, and the costs.</p> <p>To obtain payment of these judgments, Jackson on the 3d of January 1825 instituted a suit in the superiour court of chancery then holden at Wythe courthouse, in which suit the bill set forth that Conally Findlay died intestate without having paid the amount due upon the judgments; that Alexander Findlay and Abraham B. Trigg administered upon his estate, but the plaintiff was informed that they had exhausted the whole amount °f assets which had come to their hands, in the payment of other claims; that moreover they had been discharged from their office, and there being no other personal assets in Virginia, no person had been since appointed to represent the estate. It was then stated, that the plaintiff had been informed that Conally Findlay was at bis death possessed of some real estate in the county of Washington in his own right, and some belonging to the firm of Conally Findlay Co. all of which was liable, as the plaintiff was advised, for the payment of his claims.</p> <p>The bill alleged that the firm of Conally Findlay Sf Co. was composed of Conally Findlay and William King; that King died in 1808, and James King and William Trigg qualified as his executors, of whom Trigg was the survivor; that upon the death of Trigg, Lilburn L. Henderson became his executor, and consequently the representative of William King, a large part of whose estate was still unsettled; and that Henderson was after-wards displaced, and the estate of William King committed to the sheriff' of Washington county. King's estate, it was charged, was amply sufficient to have paid all his debts, and those for which he was liable ; but it was stated to have been so managed by his executors, that very little had come to the hands of White the sheriff', as administrator. It was alleged, however, that there were ample funds in the hands of White, as a receiver, appointed by the court, of the rents and profits of the salt works belonging to the estates of James King and William Trigg, under the will of William King, which funds, it was charged, were liable for the plaintiff’s claim, inasmuch as the assets of William King's estate were wasted by his executors.</p> <p>After alleging that Donahey had gone to Ireland, and that Hazlerig resided in West Tennessee, the bill made defendants thereto the heirs of Conally Findlay, James White as the personal representative of William King and also as receiver, and the devisees of James King and William Trigg: and it prayed that the personal assets of the estates of Conally Findlay and William King, if any, might be subjected to the payment of the debts due the plaintiff the real estate of Conally Find-lay and of the firm sold for the payment of the same, and the profits of the salt works belonging to the estates of James King and William Trigg appropriated to the same purpose.</p> <p>At the time of filing this bill, writs of scire facias were pending to revive the judgments at law against Alexander Findlay and Abixiham 13. Trigg as administrators of Conally Findlay; and on the 8th of Juno 1827, judgments were rendered upon these writs of scire facias, awarding executions on the original judgments.</p> <p>The representatives of William King referred, in their answers, to the writs of scire facias which were so pending, and insisted that the plaintiff could not come into equity against King's estate until he had first exhausted the legal assets in the hands of Findlay's administrators. They also relied upon the lapse of time, and upon other circumstances set forth in the answers.</p> <p>In the progress of the cause, the court directed a commissioner to settle the accounts of Alexander Find-lay and Abraham 13. Trigg as administrators of Conally Findlay; and also to exhibit a statement shewing the quantity and description of lands belonging to Findlay and to the firm, and how they had been disposed of, together with the kind of title Findlay had therefor. By the report of the commissioner it appeared that there was nothing due on the administration account from the administrators, hut a small balance due to them; and the lands of Findlay and the firm, which could be subjectec^ to debt due the plaintiff, appeared to be of small value compared with the amount of the debt.</p> <p>The cause being transferred, by virtue of the act of assembly, to the circuit court of Wythe, that court deGlared its opinion to be that the plaintiff, by his negligence, had lost his equitable claim against the representatives of William King, and decreed that his bill as to them be dismissed, and that they recover from the plaintiff their costs. From this decree, on the petition of Jackson, an appeal was allowed.</p>

<p>Writ of right, in the circuit court of Mason, by John Uarriimn against Matthew D. Brown. The count demanded -a certain tenement containing two hundred acres oí land with the appurtenances, in the county of Mason, bounded as followeth: beginning adjoining the upper end of the land granted to George Washington, on the lower side of the Great Kanawha river, about twenty miles above the mouth thereof, at a large black walnut, • thence north 56 degrees west 190 poles to a black oak, south 16 degrees west 443 poles to a sugar tree, south 20 degrees west 228 poles to a white oak, north 75 degrees east 54 poles to a Spanish oak on the river bank, north 10 degrees east 200 poles down the river, north 20 degrees east 160 poles, north 45 degrees east 160 poles, north 60 degrees east 120 poles to the beginning. The mise was duly joined, and the demandant agreed that the tenant might give evidence to prove that he was not, at the time of suing out the prcecip'e, or after-wards, in possession of any part of the land embraced in the patent to Shadrach Harriman for 200 acres, dated the 17th of October 1787, and that he claimed no title to the same or any part thereof; to have the same effect as if that matter were directly put in issue. The tenant admitted that John Harriman the demandant was the only heir at law and legal representative of Shadrach Harriman the patentee of the land claimed in this cause : and proof of his being such was therefore dispensed with. An order of survey being made, a plat and report were returned pursuant thereto.</p> <p>At the trial of the cause, the demandant gave in evidence the plat and report of the survéy; also a copy of a patent granted on the 15th of December 1772 to general George Washington, for a tract of land containing 10,990 acres, and a copy of another patent granted on the same day to James Crailc for 4432 acres: and adduced proof shewing that the devisees and representatives of general Washington have, since the year 1805 /or 1806, held by.a line marked IH on the plat (running out from a point I on the river) as the upper line of his survey; and proof shewing that the line running out from a point higher up the river, marked C on the plat, was the lower line of James Craih’s tract, and the line at by which that tract had always been hoiden. And then he gave in evidence a patent granted on the 19th of October 1787, to Shadrach Harriman, for a tract of land containing 200 acres, which tract is described in the patent as beginning adjoining the upper end of George Washington's laud, about 20 miles above the mouth of the Great Kanawha, at a large black walnut.</p> <p>The tenant on his part gave in evidence a patent bearing date the 22d of November 1804, by which there was granted unto Andrew Donnally junior one moiety, and to Reuben Slaughter as assignee of (he said Andrew Donnally the other moiety, of a tract of land containing 268 acres on the west side of Kanawha river, joining a survey of 300 acres made for Shadrach Harriman, and extending down the river to the upper end of a survey of 10,990 acres made for George Washington, being about 20 miles above the mouth of Kanawha river; which tract is described in the patent as beginning at a large black walnut, just below a branch, corner to said 300 acre survey. The tenant also gave in evidence a deed for the moiety so granted unto Andrew Donnally junior, from Donnally and wife to Hugh Gilmore, bearing date the 12th of September .1S14, and admitted to record in the county court of Mason in March 1817 : likewise a deed from Hugh Gilmore and wife and Morris Gilmore to Matthew D. Brown the tenant, bearing date the 18th of August .1829, and admitted to record in the ofSee of Mason county court the first of December following, which deed conveys a tract of land in Mason county, containing 159J acres, beginning at a large red oak tree on the bank of Kanawha river, corner to the land of the heirs of Elliott Brown: and a deed to Elliott Brown from Reuben Slaughter and wife, for the moiety of the 268 acre tract granted to Slaughter, which deed bears date the 9th of June 1812, and was admitted to record in Mason county court on the 30th of the same month. It was admitted by the demandant that the tenant is the son of the said Elliott Brown, and devisee of the land described in the lastmentioned conveyance. And it was proved in the cause that Andrew Honnally junior and Reuben Slaughter, and those claiming under them, had been in possession of the land from the line marked I H on the plat, up to Plantation creek, under and from the date of Bonnally and Slaughter's patent, and by actual occupation from 1810 to the present time: and that the demandant and his ancestor had been in possession of the land from the mouth of Plantation creek up to Crailc’s lower river corner, under and from the date of the patent to Shadrach Harriman, and by actual occupation from 1795 to the present time.</p> <p>The demandant then offered, as presumptive evidence of his beginning corner being on or adjoining the line of Washington, a copy of an entry on which his survey and patent were founded, in these words: “1785, January 18. Shadrach Harriman, assignee of Jacob Paff, assignee of John Hawkins, by virtue 'of a land warrant of 2000 acres, number 16,035, dated 8th of May 1783, enters the same as follows, viz. 400 acres on the Ohio, joining general Washington's line; 200 acres joining the lower end of G. Washington’s survey on the Big Kanawha; and 200 acres at the upper end of said survey, to join the line, and to extend up for quantity.” To the introduction of this entry in evidence the tenant objected, and his objection was sustained by the court: to which opinion the demandant excepted.</p> <p>The tenant then offered in evidence a copy of a plat and certificate of survey on which the patent of Shadrach Harriman for 200 acres was founded: also, in connexion with the deposition of Lewis Jones, presently mentioned, a copy of an order of Kanawha county court, made the 5th of March 1792, by which Francis Watkins was appointed as one of the persons to celebrate the ordinance of marriage within the county: also a copy of the publication of the bans of matrimony between David Milburn and Susanna Harriman, by Francis Watkins, on the 10th of March 1794, stated on the face of the paper to be the last time of asking; with an affidavit made by Francis Watkins on the 7th of July 1794, before a justice of the peace, stating that the copy was a uue one, and that he performed the marriage service, to the best of his knowledge, as the law directs: also a copy of an order of Kanawha county court, made the 13th of June 179S, appointing David Milburn guardian of John Harriman. And it was admitted that David Milburn, mentioned in the deposition of Lewis Jones, married the widow of Harriman the patentee, and the mother of the demandant; and that she was living during the period of Jones's tenancy. The deposition of Lewis Jones being offered in connexion with the foregoing evidence, and the depositions of Benjamin Jones and William Arbuckle being also offered, the demandant objected to the same being read, for certain reasons endorsed on the deposition of Leivis Jones, which were repeated, as to each of the others, ore tenus. The endorsement states that the deposition was objected to so fiir as it gives the belief of the deponent, or others, as to the matters spoken of by him, or ,the understanding, reputation or tradition of the neighbourhood; it not being competent to prove boundaries between individuals by such evidence : that it was objected to also, so far as it purports to give the sayings or doings of others not parties to this suit., David Milburn being alive, and capable of being used as a witness: and that the answers to some questions were objected to, on the ground that the questions were of a leading character. The court overruled the objections, and allowed the depositions to be read : to which opinion the demandant excepted. To understand the opinion of the appellate court, it is necessary to set forth portions of the depositions of Lewis Jones and William Arbuckle. Jones deposed that in December 1795 his father moved to the land of Shadrach Harriman on the Great Kanawha river, in what was then Kanawha county; that his father lived on this land about seven years, and whilst living on it, built a cabin and cleared some land; that Shadrach Harriman was then dead, and David Milburn, who married his widow and acted as guardian for Harrim.an’s children, leased the land to the witness’s father; that while his father lived on the land, Milburn shewed to his father particular trees as Harriman’s corners, and it wms then well understood in the country that those trees were Harriman’s corners. The witness stated his belief that he knew the corners of Harriman’s land well, especially the front or' river corners. The lower front or river corner, he said, was a black walnut tree, which stood just below the mouth of Plantation creek, which walnut tree was then, by almost every person in the country who knew any thing about the land surveys, called and believed to be Washington’s upper front corner, it being marked with the initials of his name, viz. G. W. At the time of giving this deposition, the witness’s father was dead. By the deposition of William Arbuckle it appeared that the witness, after stating that he always heard that Washington’s upper corner was a black walnut with G.' W. on it, and that Harriman’s lower corner was Washington’s upper corner, was asked by what means he ascertained that walnut to be Harriman’s corner; and his answer was, that he was told by Reuben Slaughter that it was Washington’s upper corner, and from the common report of the country he ascertained that Washington’s upper corner was Harriman’s lower comer.</p> <p>The tenant called and examined a witness, who proved that in 1791 a hunting party discovered the walnut tree standing at the mouth of Plantation creek, which was then marked with the letters G. W. and with marks like those usually placed on corner trees; that one of the party concluded it must be general Washington’s corner, but another was of opinion that the marks looked i-too new for his survey. The witness however stated that the marks and letters seemed to him at that time to be ancient. By other witnesses it was proved, that from Hamer’s defeat up to the pacification produced by general Wayne’s treaty with the indians in 1795, there were no settlements on the Great Kanawha river, except a military post at the mouth thereof, another post of like character at the mouth of Cole river, and another at the mouth of Elk, from which hunters frequently penetrated the forests in search of game, whose journeys were generally performed up and down the river in canoes. That after Wayne’s treaty, emigrants from the east commenced settlements in the valley of the Great Kanawha, and continued to increase thenceforward. That among the emigrants and settlers on the river, acquainted with the walnut at the mouth of Plantation creek, that tree was reputed and considered as Washington’s upper river corner, and as the lower corner of Harriman’s survey. — To the introduction of this evidence the demandant objected.</p> <p>The opinion given by the court relates both to the depositions and the oral testimony. The court decided that the said depositions and oral testimony, so far as they related to the tradition and reputation of the walnut tree at the mouth of Plantation creek being the upper corner of Washington’s survey, were not proper and competent evidence to prove that fact, unless accompanied by evidence of a possession under his title, and consistent with such tradition and reputation ; but that the said depositions and oral testimony were admissible to shew that the marks on that tree, and the tradition and reputation in relation thereto, as before mentioned, might have existed as far back as 1786, when Harriman’s survey was made, and that the said tree might then have been taken and called for by the surveyor of Harriman’s land, as a corner adjoining Washington’s land. ^°r PurPose evidence was permitted to go to the jury, to have such weight as the jury might think it deserved. To which opinion the demandant excepted.</p> <p>The jury found that the tenant did not hold that part of the land mentioned in the count, lying above Plantation creek, laid down in the plat of the surveyor, and included within certain lines designated by the letters B F E D C B ; and as to that part of the land, they found for the demandant, the tenant disclaiming title and tenure thereto. This was land tying wholly above the black walnut. They further found that the tenant had more right to hold the land below Plantation creek, laid down on the plat, and included within certain lines designated by the letters B I G F B, than the demandant to have it. The land so found for the tenant lay between the black walnut and the point I in Washington’s upper line. Upon this verdict, judgment was rendered in favour of the tenant for the lastmentioned land, with costs; to which judgment the demandant obtained a supersedeas.</p>

<p>1. Husband and wife may be jointly indicted for a single act of retailing ardent spirits.</p> <p>2. In such a case if they are convicted, a fine must be assessed, and a judgment rendered against each separately.</p>

<p>At the April term 1851 of the Circuit court of Ritchie, the record states that the grand jury “returned into Court, and among other things, presented an indictment against Thomas Nutter for felonious assault and battery.” “ A true bill.”</p> <p>The indictment contained fiv.e counts:</p> <p>The first charged that Thomas Nutter on the 22d day of February 1851 in the county aforesaid with malice aforethought, in and upon one David Kuner then and there being, feloniously, unlawfully and wilfully did make an assault and with a certain knife which he the said Thomas Nutter in his hand then and there held, and had drawn and open, feloniously, wilfully and unlawfully did attempt to stab, strike at and cut with said knife, with intent in so doing, wilfully and of his malice aforethought to kill and murder the said David Kuner, contrary to the form of the statute &c.</p> <p>The second count charged an assault with a knife With intent feloniously, wilfully and unlawfully and of his malice aforethought to kill and murder the said Kuner.</p> <p>The third count charged the assault with a club as in the first count; and the fourth count charged the assault with a club as in the second count.</p> <p>The fifth count charged that the said Thomas Nutter with malice aforethought in and upon David Kuner then and there being, feloniously, wilfully, and unlawfully did make an assault, and with a certain knife which he the said Thomas Nutter in his left hand then and there had and held, being drawn and open, feloniously, wilfully and unlawfully did attempt to stab, strike at and cut with said knife, with intent then and there feloniously and unlawfully to commit the crime of murder upon the body of the said David Kuner, had he not been prevented and arrested from so doing, contrary to the form of the statute &c.</p> <p>The prisoner upon being arraigned moved the Court to quash the indictment; but the Court overruled the motion, with liberty to the prisoner to renew it at the next term of the Court. The prisoner thereupon pleaded “not guilty;” and the case was continued.</p> <p>At the next term of the Court the prisoner moved for leave to withdraw his plea of “ not guilty,” which was granted. And thereupon he moved the Court to strike the cause from the docket, because the finding of the indictment was not recorded. The ground of this motion was that in the order book of the Court the four words, “presented an indictment against,” had been erased. It appears from the statement of the clerk that after he had written the words he had erased them by drawing his pen repeatedly across each of the said words, and had then rubbed his finger over them causing a blot for their whole length; he intending to have interlined them, but the interlineation had never been made by him or any other person. The four words were however legible, and the erasing marks of the pen over them were plain, and a large black mark or blot extended over the words apparently made by drawing a finger over them, whilst the ink of the erasing marks, or the words, or perhaps both was undried. The prisoner further insisted that the law knew no such offence as a felonious assault and battery, and that the indictment produced was not such as was described in the order book.</p> <p>The Court waived the decision of the question for the time; and thereupon the prisoner demurred generally to the indictment and to each count thereof; and the attorney for the Commonwealth joined in the demurrer. Wherefore as in the opinion of the Court some of the questions arising on the demurrer were new and difficult, and involved the true meaning and interpretation of § 10 of ch. 199 of the Code of Va. p. 750-51, the Court with the consent of the prisoner adjourned to this Court the following questions :</p> <p>1st. What judgment ought the Court to give upon the prisoner’s motion to strike the case from the docket in consequence of the non-recording of the finding of the indictment as alleged by the prisoner under the circumstances aforesaid ?</p> <p>2d. Do the first and fifth counts, or either of them, set forth such an attempt to murder as to make the attempt to murder set forth in either of them a felony ?</p> <p>3d. If either of them does set forth such an attempt to murder as to make the attempt a felony, are the matters therein contained set forth in such legal and orderly manner as that the demurrer to the first and fifth counts ought to be overruled?</p> <p>4th. What judgment ought to be rendered on the demurrer to each count of the indictment, and on the demurrer to the whole indictment ?</p>

At a special term of the Circuit Court of Jackson county, held in January 1852, Samuel S. Webster applied to the Court for a writ of habeas corpus ad subjiciendum, to be delivered from imprisonment in the jail of the county.

At the April term 1850 of the Circuit court of Wood county, the grand jury found an indictment against George W. Henderson, for that he did break and enter the close of one Enos Pugh, situate in the county aforesaid, and at the house of said Enos Pugh did then and there wickedly, mischievously and maliciously, and to the terror and dismay of one Nancy Pugh, wife of said Enos Pugh, fire a gun in the porch of said house, and then and there did shoot and kill a dog belonging to…

<p>A sheriff to whom a jury is committed in the progress of a criminal trial, walks with them to a neighbouring house, and whilst there withdraws from the room where they are, leaving them in the company of three other persons. Although these other persons swear that there was no allusion by them to the trial during such absence of the sheriff, yet the verdict of the jury against the prisoner is to be set aside, and a new trial directed.</p>

An information was filed against Seymour Powell, in the circuit superiour court of law and chancery for York county, at October term 1835, charging that the said Seymour Powell late of the county aforesaid, on the 20th *day of April 1835 and within six months next preceding the 2d day of May 1835, at the county aforesaid and within the jurisdiction of the said circuit superiour court, did knowingly and wilfully, without lawful authority, cut down and carry off a line tree…

Case adjourned from the circuit superiour court of law and chancery for Tazewell county. Sayers was indicted in the circuit court, for disturbing a congregation assembled for religious worship.

Writ of error to judgment of circuit superiour court of law and chancery for Westmoreland county. Alice Ball, a free woman of colour, was indicted and tried in the said circuit court, at April term 1837, for the murder of a white man, William Webb by name. The jury found her guilty of murder in the second degree, and ascertained the term of her imprisonment in the penitentiary to be five years.

<p>Writ of error to judgment of circuit superiour court of law and chancery for Monroe county.</p> <p>The plaintiff in error was indicted in that court, at October term 1836, for passing a counterfeit bank note. There were two counts in the indictment; to each of which the prisoner demurred. The first count charged that John Buclcland, late of Monroe county, on the 14th of September 1836, at the said county and within the jurisdiction of the circuit court, being possessed of a certain false, forged and counterfeited bank note, purporting to be a bank note of the bank of the United States, of the denomination of 20 dollars, which said false, forged and counterfeited bank note is in the words and figures following—</p> <p>“ 20. B. 4724. B. 4724. 20</p> <p>The President, Directors & Co. of the bank of the United States promise to pay, on demand, twenty dollars at their office of discount and deposit in New York, to the order of M. Robinson cashier thereof.</p> <p>Philadelphia, the 7. of June 1833.</p> <p>S. Jaudon, Cash’r. N. Biddle, Pres’t.</p> <p>Fairman, Draper, Underwood & Co.”</p> <p>on which said note was the following endorsement: “ Pay the bearer. M. Robinson.” — feloniously did pass to one William Adair the said false, forged and counterfeited note, with intention to injure and defraud the said William Adair, he the said John Buckland well knowing the said note to be false, forged and counterfeited, at the time he passed the same to the said William Adair, against the form of the act of the general assembly &c.</p> <p>The court overruled the demurrer to this count, but sustained the demurrer to the other. Whereupon the prisoner pleaded not guilty to the said first count, was tried, found guilty, and sentenced to imprisonment for ten years in the penitentiary.</p> <p>At the trial, the prisoner filed a bill of exceptions, stating, that the attorney for the commonwealth offered in evidence on the trial, in support of the prosecution, a note in the words and figures following, to wit: “ 20. B. 4724. &c.” [There was no further description of the note in the bill of exceptions.] That to the introduction of this note the prisoner by his counsel objected, on the ground that it was not the same note described in the indictment, but varied from it in this, that the note offered, in addition to the indorsement “ Pay the bearer. M. Robinson.”, had the indorsement “ Cir. Sup. Ct. Oct. Tm. 1836. Indictment.”; and that in the note offered, the words “Fairman, Draper, Underwood & Co.” were not legible; and that there were other variances, in this, that some i’s were not dotted and some t’s not crossed, — which latter variances, however, were not particularly pointed out to the court. That the court, upon inspecting the note offered, made out the words “Fairman, Draper,” the first part of “Underwood,” and the “ & Co.”; but the latter part of the name “ Underwood” was illegible. That it was proved by the attorney prosecuting for the commonwealth, that at the time he drew the indictment, he had been able to make out the word “ Underwood,” from a knowledge of the fact that Underwood was one of the firm of engravers, though he did not know that he would have been able to do so, without the knowledge of that fact; but that the word had become indistinct since that time, — he supposed, by handling the note. Whereupon the court overruled the objection, and permitted evidence to be given in relation to the passing of the note produced: to which opinion the prisoner excepted.</p> <p>On the petition of Buckland, a writ of error was awarded at the last term of this court, to the judgment of the circuit court. And now the cause was argued here by R. T. Daniel for the plaintiff in error, and the attorney general for the commonwealth.</p>

Petition for writ of error to judgment of the circuit superiour court of law and chancery for Pittsylvania county. The petitioner, William Bennett, was indicted and tried in the circuit court, at October term 1837, for the murder of Joel IP Echols. The jury found him guilty of murder in the first degree, and the court sentenced him to be hanged. On the day of the arraignment, a jury could not be ha.cl; sis jurors only were sworn.

Case adjourned from the circuit superiour court of law and chancery for Botetourt county.