Volume 80 — Virginia Reports

Christian, and Mary P. Davis and als. were complainants, and A. A. Tunstall, trustee for Mary M. Brooks and als. were defendants. In 1820 two adjoining lots in Lynchburg, on each whereof was a light, two-story wooden building, were owned by John Lynch. lie conveyed one to his son-in-law, Alexander Liggatt, the father of Mrs. Brooks, one of the appellants. lie devised the other to his daughter, Mrs. Zolinda Davis, Tinder whom the appellees claim.

Appea' of X. H. (-~il1 and J. T. H. Bringman, trustees for J. G-. Tiewes and .1. G-. MuTer, from three (lecrees of curcuit court of Fau(juier county, entered Decemher 23d, 187(3, April 15th) 1879, and Decemher 15th, 1881, respectively, in five chancery causes heard together; four in the short style of Barbw~'c V. Barboci', and one iii the short style of 111111cr v. 1~17ller, Opinion states the case.

<p>Error to judgment of corporation court of Danville, rendered Juno 9th, 1884, sentencing D’Orsay Jones to pay a fine of fifty dollars and costs on an indictment against him for lewd and lascivious cohabitation with one Ivate Oliver, without being mar-riedLto her.</p> <p>Opinion states the case.</p>

b. n. c. t. a. of Peter Craig, deceased, complainant, against Jonathan Foltz's administrator and others, defendants. Argued at Staunton, but decided at Richmond. By deed, duly recorded in 1856, said Foltz conveyed to R. lvi. Coun, trustee, 578 acres of laud in said county, to secure to Peter Craig a debt of ~2,938.

H. Miller to pay to the Commonwealth the sum of §20 for an alleged contempt of said court in failing to obey a summons executed upon him to appear and serve on a jury. In answer to a rule to show cause why such fine should not be imposed on him, he appeared and answered that he was a contributing member of a volunteer military company, the “Danville Grays,” and had complied with the statute in such case provided, and was exempt from service as a juror.

<p>Application of'town of Danville, presented to this court November 5th, 1884, for a writ of mandamus to require the judge of the corporation court of said town to remove a suit therein pending against said town to the circuit court of said corporation for trial, notice for such removal having been made by said town under an act of the General Assembly, approved March 7th, 1884, and entitled “an act to amend section 1, chapter 170, Code 1873, in relation to the removal of causes from the corporation to the circuit courts,” Acts 1883-’84, page 424, which motion had been overruled and the removal of the suit refused by said judge. The motion was made after there bacl been an ineffectual trial by a jury, which, being unable to agree on a verdict, had been discharged.</p> <p>Opinion states the facts fully.</p>

<p>Argued at "Wytheville, but decided at Richmond.</p> <p>Appeal fi’om decrees of circuit court of Bland county, entered November 4th, 1883, and May 5th, 1884, respectively, in the chancery cause therein pending, wherein Franklin Stearns was complainant and A. Q. Harman was defendant.</p> <p>The object of the suit was to annul a grant dated May 1st, 1880, from the Commonwealth to Harman for 371 acres of land, to which the latter asserted claim, but of which he had not actual possession, on the ground that the said 371 acres were embraced within a tract of 75,000 acres, which had, in 1795, been granted to Robert Morris, and had passed, by devise and deed, to the complainant, who, however, was not in actual possession thereof; and on the ground that the said junior grant cast a cloud on the complainant’s title, which cloud he had a right, having no remedy at law, to come into equity to get removed.</p> <p>The defendant- demurred to the bill, and the court sustained the demurrer.</p> <p>The complainant hied an amended bill, whereby he alleged, in addition to what was alleged in the original, that the defendant had for years known that the said 371 acres were embraced in the older grant, and had obtained the junior grant thereto fraudulently as to the complainant.</p> <p>To the amended bill the defendant’s demurrer was also sustained, and the complainant obtained an appeal to this court.</p> <p>Opinion states the facts.</p>

<p>1. FrnUcIARIES-Lzmo/jc's commillee -Ez-pai-/e sell/ernen~s.-A confirmed report of an ex-jiczrle settlement of a fiduciary's accounts isftrimafaci~ correct, and can be surcharged or falsified only by suit for the purpose within proper time. Code 1873 chapter 128, section 2~); New/on v. Poole, 12 Leigh, 112; Leake v. Leake, 75 Va. 7~)2. This is equally tru~ quoad such settlements of the accounts of the committee of a lunatic~</p> <p>2. COMMITTEE OF LUNATIc -Ex.~arte settlei,, e~zt-Aiziecede~it debf-S1ai~-uz'e of/imitaiions.-It is proper for such committee to include, in his ex-parle settlement of accounts as such, a debt due from the lunatic's estate to such committee before his appointment. Such, in fact, is his only remedy, as he could sue neither himself nor his predecessor. After cunfirmation of the report of the settlement, such debt would, like any other item of the account, be beyond the operation of the statute of limitations.</p> <p>3. IDa~r- Witnesses- Comftetency.-The committee of a lunatic is corn - petent to testify as to a contract made by him with a former committee of the same lunatic concerding the latter's affairs.</p> <p>4. lDEM-Re-exarninatio~ of witnesses-It is a general rule that a deposition once taken, cannot be re-taken without the leave of the court, which will always be granted whenever justice seems to require it. v. it!. & ilL, 17 Gratt. 1SS.</p> <p>5. LUNATICS-Real estate,-Code 1873, chapter 82, sections 49, 50, and 51, relating to sale, &c., of lunatics' real estate to pay his debts and main~ tam hirrfse!f and family, does not apply to a case where after death of ~he lunatic it is sought to subject his real estate to the payment of his debts.</p>

<p>1. Legislation — Constitution—Bequests for public uses,- — Before 1790 S. J. bequeathed ^"600 to the vestry of D. parish, in P. W. county, to be put out on real security, and the interest applied to educate poor children of that county. By an act of the Legislature, in 1790, the powers and duties of the vestry were conferred on the overseers of the poor of said county, and they lent the amount of said bequest, then f88S, to C. B., and secured same on land in F. county. By an act of the Legislature, in 1819, the powers and duties of said overseers were transferred to the school commissioners of said county, who received the annual interest on said loan until 1860. C. B. died in that year, and his heirs conveyed the land to W. and J. G., subject to said lien. The latter sold the land, in 1863, to S. and P., and an act was passed by the Legislature, at Richmond, on 29th September, 1863 (see Acts 1868-’64, page 42, entitled “an act for the relief of W. E. and J. B. Gaskins”), authorizing them to pay into the literary fund the amount of said lien, and, upon the receipt thereof by the Second Auditor, the Attorney-General was authorized to release said land from said lien. Accordingly the amount was paid in Confederate cunency, and on 10th October, 1863, the deed of release was executed. The land was then conveyed to S. and P. By an act of the Legislature, in 1872, the county school board of P. W. county became the successors of the overseers of the poor of said county, and in 1881 brought their bill in chance y, in the circuit court of F county, to declare the said act of 29th of September, 1863, unconstitutional, and the pa> ment to the Auditor void, and to annul the deed of release of 10th October, 1863, and to subject the land to the lien created by the deed of 20th November, 1790. The defendants demurred and answered. On hearing the circuit court decreed in accordance with the prayer of the bill. On appeal here — ■</p> <p>Held (by a majority of the court, Lewis, P., and Hinton, J., dissenting):</p> <p>1. The act of the Legislature passed 29th September, 1863, is constitutional and valid.</p> <p>2. Funds dedicated to public uses are entirely within the scope of the legislative powers of the General Assembly, and acts of legislation changing the custody of such funds, and directing pat ment thereof to the new custodian, and the execution of a release to the debtor are valid, and binding on all affected thereby.</p> <p>8. Such acts come within the scope of the act of the restored government passed 28th February, 1866, validating “certain acts, contracts, and proceedings during the late war.”</p> <p>4. The case of the Bank of Old Dominion v. McVeigh, 20 Gratt. 457, reviewed and distinguished from the case at bar.</p>

<p>1. Practice in Chancery — Plea of another suit pending. — Where in suit in equity plea is presented of another suit in equity pending in same court, between same parties, concerning same subject, it is not error to reject the plea, consolidate the causes, and proceed in them as in one cause.</p> <p>2. Idem — Judicial sale — Re-sale.—At judicial sale title is retained, bonds with personal security are taken, and, as additional security, collaterals are assigned by purchaser to commissioner. It is not error, in such case, for the court, without first exhausting the bonds and collaterals, to decree a re-sale of the land unless within a prescribed period the purchase-money in arrears shall be paid ; especially where the commissioner has reported that the collaterals cannot be made available without a chancery suit.</p> <p>8. Idem — Amendment of pleadings. — Where, from a plea, which is unsus-tained by evidence, or rejected as making no lawful defence, it nevertheless appears that certain necessary parties have been omitted, it is right to allow the bill to be amended by inserting the omitted parties.</p>

Appeal of C. 0. Salamone from a decree entered June 25tb, 1882, against him by the chancery court of the city of Richmond, in a certain canse wherein he was complainant, and A. M. Keiley, trustee for Theresa Barratta; said Theresa Barratta and her husband, Angelo Barratta, were defendants.

<p>1. PR~CTXCE IN CHANcERY--2W~ili~fzriousness.-Bi1l in equity against a number of distinct alienees of separate parcels of land, to set aside the several alienations as fraudulent and void, is not multifarious, though there be no charge of confederacy. The several defendants have one common interest centering in the point in issue, which is the alleged fraud in the disposition of the debtor's property. Almond v. Wilson, 75 Va. (i43. Hill v. Hill, 79 Va. 592.</p> <p>2. muM-Foreign ai/achmenj~-.Bi1i ciernurrable- Whe7i.-Neither under section 2, chapter 175, nor under section 11, chapter 148, Code 1873, can "a suit, in the nature of a foreign attachment," be maintained unless the claim asserted be actually due. Unless the bill avers that a debt is due the plaintiff from one who is non-resident of this State, and who has estate and effects in this State, it is demurrable. Cirode v. Ru-clzanan, 22 Gratt. 21(i</p> <p>3. ALTERATION OF at material alteration of a bond or note after its execution, when intentionally made by one ing an interest in it, and without the consent of the party bound by it, invalidates the instrument as to such party. Doby~'zs v. Rawley, 76 Va. 544.</p> <p>Q. borrowed of W. $1,000, upon his noteendorsed by S. Afterwards, without the consent or knowledge of S., but with the knowledge and consent of W., the note was altered by Q., and raised to $1,500, as se- curity for an additional $500, which thereupon W. lent Q.</p> <p>HELD:</p> <p>The alteration invalidated the note entirely as to S.</p> <p>4. FRAUDULENT C0NvEVANcEs-Znnocentpurchaser.--It is not enough that thepurpose of the grantor be fraudulent. Knowledge of such purpose. must be clearly brought home to the alienee. Where the latter has de- nied such knowledge on oath, it cannot be held that his denial is over- thrown by mere circumstances of suspicion adduced against him. by mere circumstances of suspicion adduced against him.</p>

<p>1. Practice at Common Law — Bill of particulars. — In action for damages, defendant’s motion that plaintiff be required to file bill of particulars, is then denied, but at next term it is allowed, and plaintiff files the bill, and trial proceeds, without defendants asking for time to consider of his defence, he cannot raise the objection in the appellate court.</p> <p>2. Construction of Statute — Perfected contract. — Under acts approved, 0th March, 1882 (Acts 188'-’82, pages 246-249), authorizing the directors of the Central Lunatic Asylum to contract for the erection of suitable buildings for the accommodation of the colored insane of this State, no written and signed contract was required ; and upon the acceptance by the board of the contractor’s bonds, and the spreading upon the minutes of the articles of agreement between the parties, a contract was consummated, for any breach whereof the party aggrieved was entitled to recover damages. And if the bonds taken from the contractor were of the required penalty and conditions, and with sufficient security, it was immaterial whether they were executed by the contractor or by others.</p> <p>3 Practice at Common Law — Instructions.—It was not error in the court to instruct the jury in such action that, after the board’s accepting the plaintiff’s bond and furnishing him with a written contract, and after his executing it and delivering it to the president of the board, the president’s failure to execute it could not deprive the plaintiff of any right under the contract; and that if thereafter, without any fault on plaintiff’s part, the defendant board prohibited or prevented him fiom fulfilling the contract, they shóuld find forthe plaintiff for the labor done, the money expended, the materials furnished, and the profits he would have realized in the performance of the contract, had he been permitted to fulfill it. Com'rs Sinking- Fu/id v. Kendall Bank-Note Co., 70 Va.</p> <p>4. Idem — Instructions.—When instructions given cover the entire case and properly submit it to the jury, it is not error to refuse to give others. Laber v. Cooper, 7 Wall. 505. It is safest, however, for the court to give instructions asked for when they correctly propound the law and are relevant to any evidence in the case. Hopktns v. Richardson, 9 Gratt. 485.</p>

<p>1. PRACTICE AT COMaTON LAw-Cou~o~c-Tax-j5ayers' remedy-Assumft. si~.-Assumpsit against collecting officer is the proper remedy of a taxpayer to recover money paid by him for taxes, after collector's refusal to accept coupons tendered in payment thereof under act approved January 26th, 1882. Acts 1881-'S2, page 37.</p> <p>2. IDEai-Pleacling-SJecuz1 counis-Common courn's.-In the declaration to special counts alleging the tender of tax-receivable coupons to pay the tax, and the defendant's refusal to accept the coupons, and the latter's proceeding to collect the tax in money, when payment thereof was made under protest, the common counts for money had and received, &c., may be added.</p> <p>3. IDEM-Judgmen~ againsz~ S~'ate. --The action under this statute is in form • against the collector; but being to recover a demand growing out of his acts done co/ore officil, is substantially against the Commonwealth, and the judgment is likewise.</p>

<p>1. Criminal Proceedings — Venue.—Indictment not sustained without proof that offence was committed in county wherein venue is laid; but a strong presumption thereof raised by the evidence suffices.</p>

<p>Appeal from decree of chancery court of Bichmoftd city, entered 9tli December, 1876, in suit of Henry Bates and others, heirs at law of Micajali Bates, deceased, plaintiffs, against Patrick W. Brown and others, heirs of James Brown, senior, deceased, defendants. Plaintiffs claimed that James Brown, senior, conyeyed all the interests of every kind which might result to him in a certain parcel of land near Bacon Quarter Branch, in Henrico county, and certain other property, by deed of 6th August, 1825, to Samuel Taylor, trustee: that by deed of 23d -May, 1844, said trustee conveyed to Thomas P. Crew all the land and all the right to land in law and equity near Bacon Quarter Branch, which had been conveyed to him by said Brown; that said land is in Duvall’s addition, and consists of thirty-nine lots designated by certain named numbers; that by deed dated 27th February, 1854, said Crew conveyed the same to Micajah Bates, senior, the ancestor of the plaintiffs, who died iii July, 18G1, intestate; tliat part of said land was sold for taxes, and tlie tax-title thereto conveyed to the purchaser, Isaac A. Godwin, by deeds dated 18th February, 1857, but was regained by the plaintiffs in 1873; that by deed dated 28th October, 1824, said James Brown, senior, had conveyed the said Bacon Quarter Branch land, and other property, to Charles Copeland, Charles J. Mc-Murdo and Robert Burton, trustees, for certain purposes; that said James Brown had also encumbered said property by another deed of same (late as the last named, hut that the purposes for which the trust-deeds last-mentioned were executed had been fulfilled, and the trusts satisfied — and they prayed for the removal of the encumbrance of the said satisfied trust-deeds. The plaintiffs filed as exhibits the deeds above referred to, and other documentary evidence tending to support their claims. The defendants demurred to the bill, and alsci answered it, denying the identity of the property which the plaintiffs claimed, with the property actually sold to them. No reference of the cause was made to a commissioner to ascertain and report the facts on the question of identity, and no depositions Avere taken, but the cause Avas heard on the pleadings and the exhibits. At the hearing the court oaxu-ruled the demurrer because the case presented by the hill Avas sufficient, hut- decreed that the plaintiffs’ bill should be dismissed AA'ith costs, because they had failed to establish the identity of the property as aforesaid. From this decree the said Bates’ heirs obtained an appeal to this court.</p>

A. Moorman was plaintiff and John H. Johnston was defendant. The defendant was mayor of Danville, and claimed to be acting in his judicial capacity when he caused the arrest and imprisonment of the plaintiff. At the trial the jury found a verdict for §2,000 damages in favor of the plaintiff, and the court entered judgment accordingly. To this judgment Johnston obtained, from one of the judges of this court, a writ of error and supersedeas. Opinion states the case.

Argued at Staunton, but decided at Richmond. Appeal from two decrees of circuit court of Frederick county, rendered 17th May, 1884, and 12tb June, 1884, respectively, in the chancery cause of Mary Mitchell’s executor against J. T. Strother’s administrator and others. Mary ~W. Tuley held J. T. Mitchell’s bond, dated 80th October, 1860, for $1,561.15. Mary Mitchell and J. T. Strother were sureties thereon.

Argued at Staunton, but decided at Richmond. Appeal from decree of the circuit court of Clarke county, rendered May 19th, 1884. in the chancery cause of Edward J. Xaupi and wife against Mary Mitchell’s executor and others.

Opinion states the case. There can be no doubt that this statute certainly authorizes and permits suits to be brought against the State. Such was its purpose, its language; especially section 6, sliows clearly that judgments and decrees against the State in suits brought thereunder, are contemplated and provided for, and this court has unanimously so decided, ffiyyinbotham v. Commonwealth, 25 Gratt. 636.

Argued at Wytlieville, but decided at Richmond. Appeal from decree of circuit court of Bedford county, entered 4th June, 1883, in the chancery cause wherein Robert H. Jeter, executor of Julius H. ITatclier, deceased, and others were defendants, and James W. Hatcher and Laura, his wife, and Benjamin Noel and Florella, his wife, were complainants. The object of the suit was — first, to hold the estate of the testator, Julius II.

Ford, plaintiff, against V. G. Dunnington, treasurer of the city of Lynch-burg, ordering, for reasons going to the merits, the Auditor of Public Accounts to issue his proper warrant for the payment to said Ford of the sum of $526.05 as of June 7th, 1884, which was wrongfully collected, upon his delivering to the Auditor for cancellation, the coupons offered in evidence. Opinion states the case.

<p>Appeal from decree of circuit court of Caroline county, entered March 14th, 1882, in the chancery cause therein pending, wherein W. B. H. Campbell, administrator of J. P. IT. Campbell, was complainant, and J. J. White, Walter S. Wright, executor of Ann J. Wright, W. 18. Chandler, Jos. A. Chandler, John Washington, A. B. Chandler, Win. G. Miller, and Emma E.,.bis wife, Ann J. Wigglesworth, and others, were defendants.</p> <p>Opinion states the case.</p>

<p>Argued at Staunton, but decided at Bichmond.</p> <p>Appeal from decree of circuit court of Clarke county, entered May, 24th, 1884, in the chancery cause of Josiah W. Ware’s administrator against Benjamin Starkey, William B, Claggett, and others.</p> <p>Opinion states the case.</p>

<p>1. Specific Performance-Parol contracts.-B. by parol contract sells W. an acre of woodland for $30, to be paid in three years, in work, and puts him -in possession. W. clears the land and builds on it a dwelling, which with his family he continues to occupy, and in work paid B. the purchase-money.</p> <p>Held :</p> <p>W. is entitled to a conveyance in specific performance of the sale of the land.</p>

Appeals of right from fourteen judgments of the circuit court of Loudoun county, rendered October 28th, 1884, affirming the judgments of the county court of said county, rendered May 12th, 1884, upon the several petitions of Florence Braden’s trustee, John W. Wenner, Benjamiu J. Grubb, William H. Brown, Summerfield.Bolyn, Enoch Fenton, James M. Walker, John W. Garrett, Thomas R. Smith, Jeannette Raphael’s trustee, Joshua Hatcher, Edward Nichols, The Mutual Fire Insurance…

, and of Luck and others against Board of Supervisors of Stafford county. The latter suit ivas instituted by Luck and other tax-payers of said county to enjoin the said supervisors from levying a tax, in advance of issuance and negotiation, to pay the interest on county bonds which were necessary to be issued and negotiated in order to raise funds to pay for erecting the free bridge across the Rappahannock river near Fredericksburg, under act of February 9th, 1882.

Thompson, deceased, and the last to subject the interest of her brother, 'William Fontaine, in her estate, to the claims of his creditors. Opinion states the case.

<p>1. Municipal Corporations — Powers of taxation. — Every grant of the power of taxation to a municipal, or other subordinate body, must be strictly construed. And municipal officers must show, in the words of the charter, a warrant for whatsoever authority they assume to exercise.</p> <p>2. Idem — Idem.—Section 5, of charter of city of Lynchburg, grants author* ity to impose a license tax upon persons engaged in certain enumerated callings, and “upon any other person or employment, which it may deem proper, whether such person or employment be herein specially enumerated or not,” does not empower the city to impose such tax upon a railroad corporation; which is neither a person nor an employment, within the ordinary acceptation of those words.</p> <p>3. Construction — Rule of ejusdem generis. — When a particular class of , persons or things is spoken of in a statute, and general words follow, the class first mentioned must be taken as the most comprehensive, and the general words treated as referring to matters ejusdem generis with such class, the effect of general words when they follow particular words being thus restricted.</p>

<p>3. Judgments — Decrees—Judgment creditors. — By Code 18715, chapter 182, sections 1 and 2, a decree for specific property or requiring payment of money, has the effect of a judgment, and persons entitled thereto are judgment creditors.</p> <p>2. Practice in Chancery — Statute of limitations. — Courts of equity follow the law as respects the statute of limitations. If a legal claim, barred at law, be asserted in equity, it is equally barred there.</p> <p>5!. Judgment Liens — Enforcement in equity. — Lien of judgment is a creature of statute, and cannot be enforced in equity after it ceases to be enforceable at law.</p> <p>4. Idem — Construction of statutes. — The language of the statute, Code 1878, chapter 182, section 8 : “The lien of a judgment may always be enforced in a court of equity,” implies only a purpose to confer juris*-diction on courts of equity to enforce the lien, whether the remedies at law are adequate or not. •</p>

<p>Appeal of Mrs. Anne B. Hughes, by her husband, George Hughes, front decree of circuit court of Gloucester county, entered March 2nd, 1883, in a cause wherein she is complainant, and N. C. Tinsley & Brother are defendants.</p> <p>Opinion states the facts.</p>

Appeal of James A. Frazier from two decrees of circuit court of Augusta county, entered July 3rd, 1884, and November 22d, 1884, respectively, in tlie cause of Frazier v. Frazier (77 Ya. 775), after it bad been sent by this court back to the circuit court by the decree of October 11th, 1883, and the several ■petitions of Mason and others for the rehearing of the decree last aforesaid. Opinion states the case.

<p>Error to judgment of circuit court of Albemarle county rendered May 17th, 1884, and sentencing to death by hanging, one Joseph Barbour, who had been found guilty of murder in the first degree, by the verdict of the jury upon the trial of an indictment for the murder of one Bandall Jackson.</p> <p>Opinion states the case.</p>

Error by Louisa J. Peake and others, from the judgment of circuit court of Louisa county, rendered March 22nd, 1884, whereby an instrument of writing, dated April 13th, 1870, propounded by John B. Jenkins, was admitted to probate as the last will and .testament of Anna L. Jenkins, deceased. Opinion states the facts.

A. Goodrich, assignee of late firm of Goodrich & Hendricks, plaintifi~, against M. T. Seymour, S. M. Seymour, Andrew Coyne, A. Wallaee aiid others, defendants. The defendants, under their firm name of A. Coyne & Co., were indebted to the firm of Goodrich & Hendricks in the sum of over $2,000.

Appeal of J. S. Moore from decree of the chancery court of the city of Riehrnond, entered May 10th, 1883, in the cause wherein said Moore was plaintiff, and E. Uliman, M. Block, J. Baach and others were defendants. Court below dismissed the bill of Moore praying that a certain deed made by Baach to Ullman, trustee, to secure a debt to Block, be set aside as fraudulent. OpiBion states the case.

The petitioner, Rollins, was taken into custody by the sheriff of Roanoke county, under a writ of capias ad respondendurn, issued from the clerk's office of the county court of said county, in an action of debt wherein the commonwealth was plaintiff, and the petitioner was defendant.

L. Lester, the executor of Wilkins Hall, deceased, founded on a bond alleged to have been issued by the said county court on the 9th day of June, 1862, for $2,000, loaned to the said county by the said Hall, to purchase salt, under the act of the general assembly, passed May 9th, 1862. The board refused to pay the said claim.

S. Moore and J. M. (Iregory, trustee, against Jeremiah Steelman and others. In October, 1881, David E. Porter, by writing, sold to Steel-man ten thousand cords of wood, to be cut in said county and delivered by a certain time on the Brighthope railroad, and there ricked for measurement and receipt, and to be paid for when so received. Steelman had advanced $5,000 on the contract.

Appeal of B. Kahn from two decrees of the judge of the corporation court of the city of Norfolk, entered in vacation on the 27th April, 1883, and on the 2nd May, 1883, respectively, in a certain suit, wherein said Kahn and another are defendants, and Tobe Kerngood, Win. Kerngood and Abe Kern-good, partners in the name of Kerngood & Bros., are plaintiffs.

<p>1. Warranty of Title — Estoppel.—Where one conveys land with general warranty, whereof at the time he has not the title, but afterwards acquires it, such acquisition enures to the grantee. Raines v. Walter, 77 Va. 92. The warrantor is estopped from denying he had the title.</p> <p>2. Idem — Bankruptcy—Estoppel.—A discharge in bankruptcy releases the warrantor from liability for covenants broken, but does not affect the estoppel, because the covenant runs with the land. Bush v. Person, 18 Howard, 82.</p> <p>3. Idem — Idem—Resulting trust. — Where one having only the equitable title, conveys the land with general warranty; then is discharged in bankruptcy ; and afterwards, with another's niotiey. buys the land, at a resale thereof for the unpaid purchase money, and obtains to himself a conveyance thereof, such title does not enure to his grantee, and he is not estopped to deny he had the title, because a trust resulted in favor of him whose money bought the land.</p> <p>4. Fraud — Purchaser for value without notice. — On doubtful evidence fraud must not be assumed. It must be distinctly alleged in the bill, and clearly proved. And so, of the'defence of purchaser for value without notice.</p>

<p>Appeal from decree of circuit court of Alexandria county, entered November 8tli, 1882, in the suit of S. Ferguson Beach against Alex. Hunter and others. The object of the suit was to construe and enforce for the payment of a. debt due by Hunter to Beach, a trust deed on the east half of Hunter’s tract of land called “Abington,” in said county, which the latter had, in consideration of marriage, subsequently conveyed to Alice A. Swain, who, later, became his wife. The decree of the circuit court was in favor of Beach, and from it Hunter and wife obtained an appeal to this court.</p> <p>Opinion states the case.</p>

<p>1. MARRIED WoMEN-Se~araie Esiale-Alienalion.-A wife may make her separate estate liable for the debts of herself, her husband or any other person, unless the instrument creating the estate, expressly or impliedly, denies or limits such power, but the intention so to deny or limit must be clear. Bain & Bro. v. Buff 70 Va. 371.</p> <p>2. thEM-Conveyances for advances to Jznsband.-Where real estate i~ granted to a trustee for separate use of married woman, free from he husband's debts, to be disposed of upon her written request, for rein vestment, the proceeds to be held for her benefit upon like restrictions and she, her husband and her trustee unite in deed conveying the prop erty to secure advances of money to be made by another to her hus band, she has the power of alienation, and the grant of special powei to dispose of the property in a particular manner, does not divest he~ of her general power to dispose of it in any other manner. Finch v. Marks. 76 Va. 207.</p> <p>3. IDEM-SeUlement to secure Jzorne.-But where the settlement is not only to provide, but to secure a home for the wife and her children, the intention is manifest to withhold the power of alienation. Bank of Greensboro y. chambers, 30 Gratt. 202.</p> <p>4. PRINCIPAL AND SURETY-Change of contraci~-Surety is discharged by any change of contract, however immaterial, if made without surety's consent. Dey v. Martin, 78 Va. 1.</p> <p>5. MARRIED WoMEN-Husba~'id-Surety.-Where the wife charges her property to secure a debt of her husband, she becomes the surety of her husband, and is entitled to all the rights of a surety. Nermcewicz v. GrJzn, 3 Paige, 614.</p> <p>6. NEGOTIABLE I NSTRU~IENTS-Accefttance-Paymen1.-Payment, not ac- ceptance merely, entitles acceptor to sue the drawer. Braxton v. Willing, Morris & Co., 4 Call, 288.</p> <p>■ 7. Case at Bar. — A credit on the account of the principal debtor should discharge pro tanto the lien on the surety’s estate.</p>

<p>Appeal from decrees of circuit court of Greensville county, entered October 6th, 1881, October 27th, 1882, and December 2nd, 1882, respectively, in the cause wherein Samuel B. Turner, administrator of John S. Turner, deceased, and others, were plaintiffs, and E. L. Turner, trustee, and others, were defendants. Those decrees were in favor of the defendants, and the plaintiffs appealed.</p> <p>Opinion states the case.</p>

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

<p>Error to judgment of circuit court of Halifax county, rendered April 7th, 1882, in an action of debt wherein Stebbins & Lawson, assignees of Thomas Bruce, .were pláintiffs, and Alexander Bruce was defendant. The action was founded on a bond dated January 9th, 1878, executed by the defendant, for $1,500, payable two years after its date, to Thomas Bruce, and by him assigned, 17th January, 1878, to. the plaintiffs, for a certain sum, part paid in cash and for balance note giren at four months. By transactions between Thomas and Alexander Bruce, on 10th February, 1878, the liability on the bond ceased, though it was not surrendered or demanded. The assignees notified the obligor of the assignment on 14th February, and the latter made no Reply. They then paid the note, and in January, 1879, again wrote to Alexander Bruce about the bond, when he replied: “ Thomas Bruce is heavily indebted to me, and I ought to be entitled to a credit on the note to the amount of his indebtedness to me.” To the action on the bond Alexander Bruce set up offsets acquired by him against Thomas Bruce before notice.of the assignment. There was much conflict of testimony. There were three trials. At two the juries failed to agree. At the third the jury rendered their verdict for the defendant. This verdict the plaintiffs moved to set aside. The court overruled the motion, and entered judgment in accordance with the verdict; and the plaintiffs were awarded a writ of error.</p> <p>This case comes up on a certificate of the facts proved at the trial before a jury, and exceptions to the rulings of the court below on the law applicable to such facts.</p> <p>No rule of law which forbids a court to interfere where a jury has weighed conflicting evidence can possibly apply. The simple question is, Did the court below err as to the law applicable . to the facts certified and just inferences therefrom ? Slaughter v. Tutt, 12 L. 147.</p> <p>The first' grcftmd of error assigned was the refusal of the court to give the instruction asked for by the plaintiffs in these words: “If the jury shall believe from the evidence that the bond sued on in this case was assigned to the plaintiffs on the 17th of January, 1878, by Thomas Bruce, to whom it is payable, and that part of the consideration of said assignment was a note of the plaintiffs to Thomas Bruce, payable at four months from that date, and that the defendant was notified by the plaintiffs of the said assignment by a letter dated the 14th of February, 1878, and received by defendant on that day, or the next day, and that the defendant did not inform the plaintiffs of any failure in the consideration of the said bond, and did not inform the plaintiffs of any claim of offset whatever until the 10th January, 1879, and then claimed that the said Thomas Bruce was heavily indebted to him; which said indebtedness should he credited on the said bond. And if the jury shall further believe from the evidence that the plaintiffs were induced by the said silence of the defendant to pay their said note given in part consideration of the said assignment, and that the said Thomas Bruce, on the said 10th January, 1879, was greatly embarrassed, if not insolvent, and is now insolvent, then the jury should consider that the said conduct of the defendant has deprived him of the right to rely on the matters set forth in his said pleas as a defence to this suit, and they must find for the plaintiffs.”</p> <p>The court added the words, “to the amount so paid”; thus restricting the recovery to the amount of the note given by the plaintiffs on the purchase of said bond, and subsequently paid by them, and gave the instruction with this restriction.</p> <p>The learned counsel for the appellee claim that the instruction given was “logical” and that refused was “illogical.” The error of the learned judge below, thus attempted to be sustained here, consists in an entire misapprehension of the rule of law embodied in the instruction asked for. The rule of law evoked by the plaintiffs is that known as estoppel in pais, and is expressed by Lord Coke (Co. Lit. 252a), in these words: “Estop-pel cometh of the French word esto ape, from whence the English word stopped; and it is called an estoppel or conclusion, because a man’s own act or acceptance stoppeth or closeth up his mouth to allege or plead the truth.”</p> <p>Lord "Wensleydale states the rule thus: “If any person, by a course of conduct, or by actual expressions, so conducts himself that another may reasonably infer the existence of an agreement or license, whether the party intend that he should do so or not, it has the effect, that the party using that language, or who has so conducted himself, cannot afterwards gainsay the reasonable inference to be drawn from his words or conduct.” Cornish v. Abington, 4 H. & N. (Exeheq.) 555. Baron Bramwell, in the same case, says: “ The rule is, that if a man so conducts himself, whether intentionally or not, that a reasonable person would infer that a certain state of things exists, and acts on that inference, he shall afterwards be estopped from denying it.” The Supreme Court of the United States has stated the rule both for eouzds of equity and law in these words: “What I induce my neighbor to regard as true, is the truth as between us, if he has been misled by my asseveration.” Keik v. Hamilton, 102 U. S. 76. And in Dickinson v. Colgrove, 100 U. S. 580, that court said: “ The vital principle is, that he who by his language or conduct leads another to do what he would not otherwise have done, shall not subject such person to loss or injury by disappointing the expectations upon which he acted. It involves fraud and falsehood, and the law abhors both.”</p> <p>If the obligor had been informed of the intended purchase of his bond before it had been assigned, and had concealed his defence, it will not be contended that he could afterwards set up such defence against the assignee. And this would be true although the assignee may have given less than the face value of the bond on its purchase, and although the assignor may be solvent, and thus the assignee be in no danger of finally losing any part of the money paid out. In such a case, if the logic of the learned counsel for the appellee is to prevail, the plaintiff, assignee, can only recover the amount he may have been damaged, which may he nothing. But the law is well established that the plaintiff recovers the entire amount of the obligation. Davis v. Thomas, 5 Leigh, 1.</p> <p>The same rule obtains when the obligor is informed of the assignment after it has been made, and so acts as to estop himself from defending liis bond, for the estoppel is tlie same in both cases and is based on the same equitable grounds.</p> <p>Teazle v. Dillard, 5 L. 36; Scott v. Jones, 1 Brock. 247; "Waterman on Setoff, 636-7.</p> <p>The same rule applies to an account rendered and not objected to. Towns v. Dirchett, 12 L. 193.</p> <p>The judge certifies that it was proved that “on the 17th January, 1878, Thomas Bruce sold and assigned to the plaintiffs the said bond of $1,500 for the sum of $1041.54, which was paid as follows, to-wit: They let him have a horse valued at $150, receipted an old account he owed them for $83, gave him their note at four months for $308.54, and paid him $500 in money.” “ On the 14th February, 1878, * * Alexander Bruce received from the plaintiffs a letter in regard to the said bond for $1,500, informing him that his said bond had been assigned to them by Thomas Bruce.” “ The defendant made no reply in writing to the said letter, and nothing passed between him and the plaintiffs in regard to the matter until about the time the bond of Alex. Bruce to Thomas Bruce for $300 fell due” — 19th January, 1879. “In January, 1879, the plaintiffs wrote a second letter to the defendant about the said bond of $1,500 assigned to them by Thomas Bruce, and received from the defendant a letter,” the substance of which is given hereinafter. “It was fui'ther proved that the plaintiffs paid, wdien it. became due, their said note of $308.54, given to Thos. Bruce in part payment of the purchase money for the $1,500 bond, and one of them testified that they did so believing that the $1,500 would be paid at maturity by Bruce,” the obligor. [The note being given 17th January, 1878, payable four months after date, fell due and was paid 17th May, 1878, more than three months after the notice of the assignment sent the defendant.] “It was also proved that Thomas Bruce was insolvent * * in January, 1878, * * and had been so ever since.”</p> <p>It is thus seen that every fact grouped in the instruction asked, was certified to have been distinctly proven, except the fact “ that the plaintiffs were induced by the said silence of the defendant (after receiving notice of the assignment) to pay their said note given in part consideration for the said assignment.” This fact is an irresistible conclusion from the facts proven, and therefore must be considered by this court as proved. GoSr for Fisher v. Vanmeter, 9 L. 18; Slaughter v. Tutt, 12 L. 147; which are leading cases on this point.</p> <p>Here the circumstances proved are the assignment by an insolvent of a bond, a part of the consideration being a four months’ note of the assignees, payable to the assignor — a notice of the assignment to the obligor three months before said note fell due — the continued silence of the obligor, producing the impression on the assignees that the assigned bond would be paid at maturity, and while under that impression, the payment by the assignees of the said note given to the assignor. Now, as the assignees, on information of the obligor of a defence would have had a right to decline paying their note to the assignor, which would have been their natural protection against complete loss for the consideration given the insolvent assignor, the conclusion cannot be avoided that the silence of the obligor as to any defence was the inducement which caused the plaintiffs to pay their note, and thus give up their protection pro tanto against loss. Such a conclusion is consonant with the actions of men in their usual conduct of business, and must be drawn, in the absence of all conflicting evidence, as is the case here. Greenleaf on Evid., sec. 38.</p> <p>It thus appears that every fact going to make up the conclusion of law contained in the instruction asked, and given in a modified form, was established by the proof; and therefore the jury found contrary to the law and facts in finding for the defendant.</p> <p>But in another view, the verdict of the jury was plainly against the law and facts. On the 10th January, 1879, nearly a year after the happening of the matters which the appellee claims made null and void bis bond, and which were .fully known to him, the appellee, in response to a second letter from the appellants, calling his attention to the assignment to them of his obligation, wrote as follows:</p> <p>“AVith regard to the note you refer to, Thomas Bruce is heavily indebted to me, and I ought to be entitled to a credit upon the note to the amount of his indebtedness to me.”</p> <p>This was a distinct admission by the appellee of the validity of the said bond, and an acknowledgment of his obligation to pay it to the assignees, with a claim to a right to offset so much of it as might be covered by the indebtedness of Thomas Bruce to him. An admission of a debt is in law a promise to pay it. And, therefore, the legal effect of this letter is a promise in writing to pay his obligation held by the appellants, except so fiir as he had a right to offset it by the debt of Thomas Bruce to him. Story on Contracts, sec. 707. On getting this letter the appellants were induced to believe that all they need concern themselves about was the claim to offsets, and so they took no steps to protect themselves against an entire failure of consideration. That they took steps to protect themselves against the offsets may be inferred from the fact of Thomas Bruce going to the appellee and offering to secure them.</p> <p>The rule applicable to such a promise was clearly expressed in Cleatonv. Chambliss, 6 Kan. 90, as follows: “Any damage or any suspension or forbearance of his right, or any possibility of a loss occasioned to the plaintiff by the promise of another, is sufficient consideration for such promise, and will make it binding, although no actual benefit accrues to the party undertaking.” The court to sustain this statement cites, among others, the leading ease of Pillans Pose v. Van Meirop Hopkins, 3 Burr, 1663, decided by the Court of King’s Bench, Mansfield presiding. That case is strong authority for the appellants. There the plaintiffs paid a draft of AVhite, who promised to reimburse them by a credit on the defendants. After paying AVhite’s draft, the plaintiffs wrote to the defendants asking whether they would accept their draft upon the credit of White, and received a reply that they would. But White failing, and having nothing in the hands of the defendants, the draft of the plaintiffs on them was dishonored. The defence relied on was nudum pactum, but the whole court held the defendants liable. Justice Wilmot said, “ The mere promise to pay the debt of another, without any consideration at all, is nudum pactum, but the least spark of a consideration will be sufficient. The plaintiffs by this undertaking (of the defendants), and relying on it, were deluded and diverted from using any legal diligence to pursue White, or even to part with any effects of his which they might have in their hands. Therefore, this seems to be an irrevocable undertaking by the defendants.” Justice Yates said, “ The promise and undertaking of the defendants did occasion possibility of loss to plaintiffs. They were, or might have been, prevented from resorting to White, or getting farther security from him.”.</p> <p>The same reasoning is conclusive of the case at bar. Here the appellants could at once have taken steps to secure themselves with Thomas Bruce, their assignor, if warned of a de-fence of failure of consideration by the appellee. It is no reply to say that Thomas Bruce was then insolvent. Tie was in possession of large property.</p> <p>He felt able to secure the appellee in every respect, and offered to do so. It is evident, therefore, that the admission by the appellee of the validity of the assigned bond, both by his silence after the first notice and by his letter after the second, occasioned not only a possibility of, but an actual loss to the appellants. And this was sufficient to sustain the promise to pay contained in said letter.</p> <p>It is submitted that the judgment below should be reversed and the case sent back for a new trial on proper instructions.</p>

<p>1. Partnership — Partnership property. — Property bought for and appropriated to the purposes, and paid for with the funds of the partnership, is the property of the firm, though the legal title be held in the nafne of one of its members.</p> <p>2. Idem — Liabilities—Discharge.—As one member of a partnership may create a liability on the firm, so one member may discharge the liability of the firm.</p> <p>3. Joint-Stock Companies — Stockholders.—To the extent of his stock, each stockholder is liable individually for the debts of the corporation. Where stockholder pays the debt of the corporation and takes an assignment thereof to himself, he cannot revive that debt by assigning it to a third party.</p> <p>4. Idem — Idem—Lien on property of . — Where real estate, whereon is a lien, is conveyed to a joint-stock company, and a stockholder pays off the lien and takes an assignment thereof, the lien is extinguished as to the creditors of the corporation, and cannot be revived by his assignment thereof to a third party.</p> <p>5. Idem — Idem—Idem—Estoppel.—Where a vendor’s lien exists on the real estate of the corporation, represented by a past due note, and the stockholders agree with the creditors of the corporation, that the latter shall give the corporation further time, the corporation will satisfy the vendor’s lien, and convey its property free from liens, in trust to secure those creditors, and one of the stockholders shall satisfy that lien and take an assignment thereof to himself, he is estopped from claiming that lien as his own property, and an assignee from him without notice, if the note be past due, or an assignee from him with notice, if the note be not past due, stands in no better position than his assignor; and the trust deed lien of the creditors hath precedence.</p> <p>6. Deeds — Dates—Acknowledgment—Presumption.—If a deed hath a date, the law presumes it to have been delivered at that date, and this though it was acknowledged for registry at a subsequent time. But this presumption of law must yield to proof to the contrary.</p> <p>7. Trust-Deeds — Omitted debts — Subsequent judgment.— If a chartered company create a lien on its property for the purpose of giving preference to one or more creditors of the company over any other creditor, {except to secure a debt contracted at the time), such lien shall enure to the benefit ratably of all the creditors existing at the time of the creation of the lien. So, where a creditor under contract made before the creation of the lien, is omitted, and after that time obtains a judgment for unliquidated damages for breach of the contract, the lien enures for his benefit, ratably, with the other creditors. Code 1873, chapter 57, section 63.</p>

<p>1. Negotiable Instruments— Theft — Maker's liability — Note payable to bearer has been delivered, stolen from the owner, and come to bona fide holder for value. Latter may recover on it againsl the maker. Secus, where the note has not been delivered, or if delivered, has been returned to maker, and stolen from him.</p> <p>2, Idem — Coupon bond — Theft of — Maker's liability — Case at bar. — Two coupon bonds issued by the state of Virginia, payable to bearer, are redeemed by the state, and other bonds issued in their stead. Later the bonds were stolen from the state treasury, came into the hands of B., a bona fide holder for value without notice of the theft, and by B. were presented to the commissioners of the sinking fund, to be funded into other bonds of the state. The commissioners refused, on the ground that the bonds had been stolen from the state treasury. B. ap^-plied for a mandamus.</p> <p>Held :</p> <p>Mandamus denied.</p>

<p>1. Negotiable Instruments — Discharge.—Payment of note at bank is either a sale or a discharge thereof. A sale, it cannot be without the bank’s consent. And where the note is paid by a stranger bound for its payment at maturity, the note is thereby actually discharged, and cannot be re-issued by him so as to bind the parties thereto, or to keep alive a trust-deed executed to secure it, except with the knowledge and consent of those parties.</p> <p>2. Quasre. — When may suit be brought on a dishonored note ? As soon as it is dishonored, or after business hours on the day of its dishonor, or on the next day after its dishonor ?</p> <p>3. Negotiable Instruments — Discharge—Estoppel—Case at bar. — C. purchased a lot and owed thereon $2440, evidenced by his note secured by trust-deed on the lot. P. bought the lot of C., and, as part of the price, agreed to pay the note when due. When due, P. paid the note and took it up. It was not marked “paid,” as P. told the note clerk he wanted to deposit it elsewhere as collateral. He did so deposit it with the Citizens Bank. Afterwards P. sold and conveyed the lot to L. The trust-deed had not been released, but P. told L. the note had been paid. Later, the bank had the lot advertised for sale to pay the note, and L. obtained an injunction. '</p> <p>Held:</p> <p>1. The transaction between P. and the bank at which the note was payable, discharged the note of C.</p> <p>2. L. was entitled to rely on the statement of P. that the note had been paid, and was not estopped from denying its existence as a valid security, though P. might have been so estopped.</p> <p>3. L. was a purchaser for value without notice, and it was proper to perpetuate the injunction in his favor.</p>

<p>1. Criminal Jurisdiction and Proceedings — Aiding and abetting. — -It is well-settled law that mere presence is not sufficient to render one guilty of aiding and abetting the commission of crime. There must be something done or said by him showing his consent to the felonious purpose and contributing to its execution. Lee Reynolds v. Coni'lih, 33 Gratt. 834.</p> <p>2. Idem — ■Case at bar — The circumstances indicate that though W. did kill the deceased, and that K. was present, yet the latter did not aid or abet in the commission of the crime.</p>

<p>Appeal from circuit court of Caroline county.- Opinion states tlie case.</p>

T. Jenkins, plaintiff, against T. W. Matthews, defendant. The defendant was a 11011-resident of tliis state, but owned real estate in said county, and the plaintiff sued out an attachment in equity, and had it levied on the said real estate; and the court below decreed that the defendant pay to the plaintiff the sum of $556.50, with interest thereon from the 2nd June, 1882, until paid, and his costs, and in default of such payment that the said real estate be sold.

Npon petition of William Nelson and six others, trustees of Hall’s free school in Beaver Bam district in Hanover county, for a writ of mandamus, to compel E. E. Horne, treasurer of said county, to pay to them, as such trustees, the sum of $150, to be appliedto the benefit of said Hall’s Free School, in pursuance of act of assembly passed February 6th, 1884. Acts Extra Session, 1884, page 173. Opinion states the case.

<p>1. Judgments — Relation back — General rule — Exceptions.—As a general rule, a judgment rendered at any time during a term, relates back to the first day of the term, as if rendered then. This, however, is not always so. The rule does not apply to a judgment rendered during a term in a case which was in such a condition that the judgment could not have been rendered on the first day of the term. Coutts v. Walker, 2 Leigh, on p. 303, top ; Brown v. Hume, 16 Gratt. on p. 465.</p> <p>2. Attorney and Client — Fees—Taxed—By contract. — The clerk of the court cannot tax against the losing party in a suit, other than the fees prescribed by statute. But contracts, express or implied, between attorney and client for fees, are not limited as to amount, and may be » enforced as other contracts.</p> <p>3. Idem — License.—A client cannot refuse to pay his attorney his fees, though that attorney be practicing without license.</p> <p>4. Idem — Influencing legislation — Bribing—Argument.—Section 6, chapter 5,Criminal Code of 1878, p. 295, aims at the offence of paying money or other compensation to secure the passage or defeat of any measure, and was doubtless intended to apply to the use of money in buying votes, &c.; and not to contracts with attorneys for purely professional services, such as drafting petitions, setting forth client’s claim, taking testimony, collecting facts, preparing arguments, oral or written, addresses to the legislature or its committee, with the intention to reach its reason by argument. Hence contracts for the latter purpose are valid. Trist v. Child, 21 Wall. 441.</p>

<p>Upon petition of F. S. Blair, attorney-general for four years, commencing January 1st, 1882, asking for a Avrit of mandamus to compel Morton Marye, auditor of public accounts, to pay to petitioner tlie sum of S833.33-J-, due Mm at the date of Ms petition, as Ms compensation prescribed by law, and for the payment whereof the genera] assembly had made appropriation for the months of November and December, 1884, and of January and February, 1885, which petitioner had demanded, but which said auditor refused to pay. To a rule nisi served on said Marye the latter demurred, and answered the petition. In his answer, he set up that the petitioner had, during his term of office, drawn without authority of law, the sum of $5412.87 from the treasury, whereof nothing had been repaid, and that the petitioner, by the act of 24th November, 1884, could not receive any salary until said sum so overdrawn had been repaid. To this answer, the petitioner demurred and replied.</p> <p>The details are set forth in the opinion.</p>

<p>Heard at Richmond, but decided at "Wytheville.</p> <p>Appeal from decree of corporation court of Danville, rendered at its May term, 1883, in the cause of Gilchrist’s administrator against ■ Howard Craft’s administrator and als., dismissing the petition or bill of Cobbs, assignee of Lydia Craft, bankrupt, claiming a certain surplus as part of tbe bankrupt’s estate.</p> <p>Opinion states the facts.</p>

<p>Heard at Richmond, and decided at Wytlieville.</p> <p>Appeal from decree of circuit court of Loudouu county, rendered January 23rd, 1883, in the cause of Warren v. Lersner, which was a creditors' suit against the estate of Gu~tavus Lers-ncr. An account was ordered and taken, and the report showed among other debts, one of $3900, with interest from May 2nd, 1876, to Morris Lersner, and secured by trust-deed on lands in Fauquier county. Of this debt, §1387.78 was assigned to Aaron Daily, on 3rd April, 1877. Daily’s ex’or, in April, 1880, filed liis petition in said cause, setting up this assignment, and praying that so much of the said debt be decreed to him. To this petition neither Morris Lersner nor Ignatius Lersner was made a party. In October, 1880, a decree was entered according to the prayer of the petition. But Morris Lersner had, on 15th March, 1877, for value received, assigned by an instrument under seal, and acknowledged before a notary, but unrecorded, to Ignatius Lersner, §1900 of said §3900 debt, and had delivered the bond evidencing the debt to the assignee. Of this assignment, Daily had notice on 3rd April, 1877, when he took his assignment as security for a debt, which originated from Morris Lersner to said Daily, after 15th March, 1877. Before the money was paid to Daily’s executor under the decree of October, 1880, Morris Lersner and Ignatius Lersner filed their joint petition in said suit, setting forth the said assignment of 15th March, 1877, asking that the decree of October, 1880, be reviewed and reversed; and that the payment to Daily’s executor be enjoined, and that §1900 of the said §3900 debt be paid to the assignee, Ignatius Lersner, in preference to said Daily’s executor. To this last petition Daily’s executor demurred, and answered, and averred that Daily was an as-signee for value, without notice of the previous assignment, which he contended was void, because made with intent to hinder, delay and defraud the assignor’s creditors. By the decree complained of, the court below overruled the said demurrer, reversed the decree of October, 1880, and ordered the money to be paid to Ignatius Lersner. It also overruled the exceptions of the depositions of Morris Lersner and of Ignatius Lersner, taken in the cause in their own behalf, to prove the assignment of 15th March, 1877, and the consideration thereof; and sustained exceptions to certain depositions and letters offered by Daily’s executor in his own behalf; and it also decided, that Morris Lersner should have been made a party defendant to the petition of Daily’s executor, and summoned to answer. From this decree Daily’s executor appealed to this' court. The other facts and points raised are stated fully in the opinion.</p>

<p>1. PRACTICE IN EQUITY-Guardian and surelies.-In suit against guardian and his sureties by ward, a joint decree may at once be rendered against them on their official bond, without exhausting the guardian before going on his sureties.</p> <p>2. EQUITABLE JURISDICTION AND RELIEF- Wife's lanci-Joini sale- Trnst. Where wife joins with husband in conveying her land on condition that proceeds be applied to payment of a debt binding her children's land, a trust is thereby created, which a court of equity will enforce against husband, though the bonds for said proceeds be made payable to him.</p>

<p>Error to ju4grnent of circuit court of Montgomery county, rendered 29th November, 1884, affirming a judgment of the county court of said county, rendered 3rd August, 1884, whereby the person, Isaac Jones, a negro, was sentenced to the penitentiary for two years and nine months, for felonious marriage with Martha G-ray, a white woman.</p> <p>Opinion states the case.</p> <p>Appellant submits: `I'hat as he is not a hill negro, but is a mulatto, he is not within the act of 1877-8~ p. 302, section 8. A negro is one who is of the full African race, just as a white person is of the pure Caucasian race. (W ebster’s dictionary.) The distinction between negroes and mulattoes was fully recognized as a social fact before the Code of 1819. There was no doubt as to what was a negro. The legislature defined a mm latto by statute (1 R. C. p. 423, section 11), and included all persons who had one-fourth, or more, of negro blood.</p> <p>Code of 1819 recognized negroes and mulattoes as different classes of persons. 1 E. C. pp. 401, 422, 423, 424, 425, 426; (negro or other slave), 431, 432, 434, 437, 438, 440; 2 E. C.p. 43.</p> <p>Code of 1847-8, page 111, when this crime was first introduced, carefully uses both terms. 1 Code 1849, chap. 103, sec.-3, introduced a rule of construction: “The word negro in this and any future statute shall be construed to mean mulatto, as well as negro,” and accordingly, Code 1849, page 740, sect. 2, struck the word mulatto from the section prohibiting such marriage by a white person, and so the matter remained as to the meaning of “negro” until Acts 1865-6, page 84, when apparently to conform the definition to the colored persons, the marriage enabling act passed same day and found on the next page; the present statute as to definition of term “colored persons” was placed upon the statute book and the statutory definition of mulatto and of negro repealed, and the rule of construction of word negro was repealed.</p> <p>It is submitted that all colored persons are not negroes — that the only law that ever existed including mulatto under the term negro has been repealed, and if the legislature has not fully remedied the effect of the repeal, still that is for them and not for the courts to do.</p> <p>■ The repeal of a statute reinstates the common law rules. 16 Graft. 1, 363, 519.</p> <p>Then as the rule was introduced to prevent the necessity of the repetition of the word mulatto in order to make a statute against negroes apply to mulattoes, the repeal of that statute, reinstates the necessity to use the toorcl mulatto if a penal law is to apply to them, as they are of a different kind, class and race of people, especially as penal laws must be strictly construed. 1 Tucker’s Comm. 16; 3 Munf. 507.</p> <p>The commonwealth proved that Jones was a mulatto, but did not- prove the quantum of negro blood in him, and therefore did not prove him even a colored person. Code, ch. 103, sec. 2.</p> <p>The indictment in this case was against Isaac Jones, a negro man, for intermarrying with one Martha Arthur, alias Gray, a white woman. He was found guilty.</p> <p>The demurrer was properly overruled—</p> <p>1. Because the indictment, like lewd and lascivious cohabitation, etc., could have been either joint or several. Scott v. Commonwealth, 77 Va., p. 344, and cases therein cited.</p> <p>2. Because the statute, sect. 8, page 302, Acts 1877-8, under which indictment was found, toas not contrary to constitution of the United States, as claimed.</p> <p>Marriage is a matter exclusively of state police, and state laws may regulate the whole subject. Tinsley v. Virginia, decided by supreme court of U. S. in 1882.</p> <p>The indictment was, as stated, for the intennarriage of a negro man with a white woman, the plea was “ not guilty,” and on this issue the trial was conducted.</p> <p>The instruction of the court was directly pertinent to the issue, and fully expounded the law, and' there was no necessity for instructions of prisoner.</p> <p>It is believed the 'word “negro,” however, would legally embrace all “ colored persons,” under sect. 2, eh. 103, Code 1873, as contradistinguished to white persons.</p> <p>But it is not necessary for the court to decide this question, in this ease, as the jury, upon the most abundant proof, found that Jones was a negro man, and bad married Martha Arthur, alias Gray, a white woman.</p> <p>The jury were judges of the credit of the witnesses, and they were satisfied that Jones was a negro, and his wife a lohiteicoman, and this is the whole case. An appellate court will not say, that, after taking the commonwealth’s evidence (which alone can here he considered), the jury was not well warranted in their verdict.</p>

<p>1. PRACTICE AT LAw-Dem2ø'rer to evia'ence.-It is well settled that by de~ murrer to the evidence, the demurrant admits the truth of all demur-ree's evidence, and all proper and reasonable inferences therefrom, and waives all his own evidence which is in conflict with, or tends to make a case different from the case of demurree's evidence. 2?. & D. R. R. Co. v. Moore, 78 Va. 93.</p> <p>2. NEGLIGENT INJURIES- Contributory negligence- Compensation.-Compensation cannot be recovered for injuries done by defendant's mere negligence, where plaintiff by his own ordinary negligence contributed to cause the injury, so that but for such contribution the injury would not have happened, except when the direct cause of the injury is the defendant's omission (after becoming aware of plaintiff's negligence) to use proper care to prevent the consequences of such negligence. R. & D. R. R. Co. v. Anderson, 31 Gratt. 812.</p> <p>3. thEM- Case at ôar.-Boy of twelve, sent by parents to mind cows in field along railway, lay asleep on the track, and was run over by freight train 375 yards long, and killed. Train was running down grade without steam. Boy was lying, when struck, 226 yards from a public crossing, which was 892 yards from a curve from which boy was visible. Boy had been repeatedly found sitting and lying down and asleep on the track, and warned. When engineer saw boy on track, he made, in vain, every effort to stop train, by reversing engine, etc. On demurrer to evidence, court below decided for defendant company. On appeal:</p> <p>HELD:</p> <p>Plaintiff's evidence is insufficient to warrant the verdict.</p>

<p>Error to judgment of circuit court of Montgomery county, rendered 30th May, 1884, on an indictment against S. D. Hall, for the murder of Charles A. Bowyer, on 25th September, 1872; by which judgment, the jury by their verdict having found said TIall guilty of murder in the first degree, as charged in the indictment, the said court sentenced the said Hall to be hanged by the neck until dead.</p> <p>Said Hall was indicted in the county court, but upon his arraignment, he elected to be tried in the circuit court of said county, and was there tried with the result aforesaid.</p> <p>It appears from the record that “ twenty-four jurors having been summoned in the manner prescribed by law, the prisoner by his counsel asked that the selection of the panel of sixteen from the number summoned be by lot; but the court directed that a panel of twenty-four, free from exceptions, should first be obtained, and that from such panel sixteen should be chosen by lot. Thereupon it was ascertained that seventeen of the twenty-four summoned under the venire facias were free from exception. By direction of the court, the sheriff then summoned additional jurors from the bystanders, until seven other persons were found free from exception; and thereupon, from the twenty-four persons so found sixteen were selected by lot. From the list thus selected, the prisoner struck off the names of four persons, and the remaining twelve were sworn as the jury in the case.” After the verdict was rendered, the prisoner moved for a new trial, on the ground that “the venire and the jury which tried him was neither selected, summoned nor impaneled in the manner required by law,” which motion the court overruled. And thereupon, on the same ground, he moved in arrest of judgment, which motion was also overruled by the court, and sentence pronounced as aforesaid. To this judgment a writ of error was awarded by one of the judges of this court.</p> <p>I. The jury was not called, chosen, sworn and impaneled according to law, and the record shows this. Code 1873, chap. 158, § 24, p. 1063; Acts 77-8, cbap. 17, § 1, p. 339, §§ 3, 4, 8, 11; Sands’ ease, 21 Gratt. 871, 881.</p> <p>H. A prisoner who is not tried according to all the formalities of law, is not tried by “ due process of law.” Boggs v. The State, 6 Am. Reports, 689-90; Hopi v. Utah, 110 IT. S. 578-9; 19 Gratt. 656.</p> <p>HI. All steps necessary to be taken in a criminal case must appear affirmatively on the record. Gregg v. The People, 1 Am. Grim. Report, 602; Aylesworth v. The People, 1 Id. 604; Davis •v. The State, 1 Id. 606; Stubbs v. The State, 1 Id. 611; Hopt v. Utah, 110 IT. S. 579.</p> <p>IV. The errors appearing on the face of the record will be corrected on a writ of error, and no bill of exceptions was necessary. No bill of exceptions lies in any criminal case at common law, or in Virginia, except by statute. Freeman v. The People, 47 Am. Decisions, 220; Mitchell v. The State, 25 Id. 442; Dwell v. The State, 27 Id. 485; Acts 77-8, p. 345, ch. 18, § 1.</p> <p>V. A writ of venire facias is necessary to authorize a sheriff to summon a jury in a criminal case. An omission to issue the writ is a fatal error, apparent on the face of the record. The People v. McCay, 18 Johnson, 215-16-17.</p> <p>A court cannot discharge a juror of its own motion. 6 Am. Rep. 689; 2 Id. 423.</p> <p>The venire of twenty-four men, summoned from the list furnished by the judge of the county court, composed the panel from which the jury was to be selected, and the court had no right to add to, alter or change that panel, except for cause.</p> <p>The record shows on its face the following errors:</p> <p>1st. It was error to place the seventeenth man of the twenty-four on the panel. Sixteen of the original twenty-four having been found free from exceptions, the prisoner had the right to strike four from that number and be tried by the remaining twelve.</p> <p>2nd. It was error to summon seven additional jurors from the bystanders after the original panel had furnished seventeen qualified jurors free from exception.</p> <p>3rd. It was error to direct the sheriff to summon additional jurors from the bystanders without a. writ of venire facias and without a list furnished by the court.</p> <p>4th. It was error to select sixteen of the completed panel of twenty-four by lot, there being no law authorizing such a proceeding. By this proceeding the court, without the consent of the accused, caused three of the original sixteen jurors, viz: ‘Warren A. Puckett, Lafayette McCauley and Christian din-ger, to stand aside, and substituted three others -without the .consent of the prisoner, viz: C. E. Lowder, Oscar M. Nelson .and James Walters. State v. Brown, 2 Am. Crim. Rep. 423.</p> <p>The prisoner does not say he was not fafrly dealt with, or that he suffered any injury from the mere manner in which the jury was formed. The objection, if good, was made too late. No exception was taken at the opening of the case, but it was reserved for the motion to set aside the verdict.</p> <p>The objection, if good, ought to have been made before the jury was sworn. Bristoe’-s Case, 15 Graft.; United States v. Gale, IT. S. Reports, 109, p. 65. The statute provides, that where the penalty may be death, the writ shall require the officer to summons twenty-four persons, in manner as provided in 33d section. Ch. 17, sec. 4, Acts 1877-78, read in connection with sections .3 and 4, sec. 8 of same chapter, which provides that where the penalty may be death, there shall be selected from the persons summoned — (not from the original venire facias) — from those .summoned, either by the new venire facias or from the bystanders, •so as to get the twenty-four as required by sec. 4. The plain and manifest purpose of the statute is to have twenty-four persons free from exception where the penalty may be death, and sixteen where it may not. Suppose from those originally summoned only ten be found free from exception, what nnist the court do ? Must it summon six others and stop, or must it not summon, as provided, until twenty-four be gotten free from exception, and from the twenty-four select the sixteen? "Why does the law require twenty-four to be summoned, if that number are not to be found free from exception, so as to select the sixteen from them? Epe’s Case, 5 (iratt. p. 696, where this language is used: “In making up the panel of twenty-four,” etc. Thus you null see the panel is incomplete until twenty-four are g’otten, which fact is shown more plainly by the reasoning of the court in Dowdy v. Commonwealth, 9 Qratt.; see particularly pp. 785 and 736. The plaintiff in error will contend that from the number so summoned a sufficient number to try the case was all that was to be required. Twelve is a sufficient number to actually try. If the law did not intend to distinguish between cases where punishment might be death, why in one case is sixteen required, and twenty-four in the other, and in both is the peremptory right to strike off’ four? The court iu this case only •selected from those summoned a panel of sixteen.. As said before, the eighth section does not say, shall be selected from those ¡summoned by the original venire facias, but says, “ there shall be selected from the persons summoned a panel of sixteen persons, free,” etc.</p> <p>"Wlio are the persons summoned? Sec. 4. — "When punishment may be death, twenty-four, if a sufficient number for the trial cannot be had, etc., etc., the court may direct another venire facias, and cause to be summoned from bystanders, etc. So the eighth section refers as much to the second venire facias, and to those from the bystanders, as the. first venire facias. Suppose the original twenty-four had all been found free from exception, would the court have been compelled to stop when it secured sixteen, or would it not have been fairer to the prisoner -to have taken the entire twenty-four, selected by lot sixteen, .and then strike off the four? See Sands v. Commonwealth, 21 «Graft, p. 871, and especially pages 880-1. Then the law required, where the punishment might be death, more than twenty-four, and the venire facias only summoned twenty-four. On the latter part of page 881 the court says, that “though there was error, (and the objection was made before the jury was sworn) * * * * * it would have been cured by the subsequent proceedings.” The selection and impaneling a jury is merely directory. See Wash v. Commonwealth, 16 G-ratt. page 530; and unless they can show that injustice resulted from the irregularity, it is no ground for reversal.</p> <p>It will be seen from page 8 of record, that if the court erred at all, it was in mercy and in favor of prisoner, because it required that a venire of twenty-four men, free from exception, should be first obtained, while prisoner merely wanted a panel of twenty-four men, regardless of such consideration, from whom sixteen free from exception could be chosen by lot.</p>

<p>Appeal from decree of circuit court of Wythe county, rendered 7th December, 1881, in a chancery suit wherein Allen Smith is complainant, a1ld Oharles Perry, administrator of Edmond Smith, deceased, and Westley Johnson and Richard Olark are defendants.</p> <p>The object of the suit is to sett'e the estate and distribute the same, the complainant claiming to be the father and sole heir and distributee of the intestate. The defendants, Johnson and. Clark, contended that the intestate was a bastard, and that they were Ms next of kin on bis maternal side, and consequently Ms lawful heirs, and filed answers setting up their contention. Depositions were taken on both sides, whereby it was established that Allen Smith, the complainant, and Mary Bell were colored persons living together as husband and wife when the act of 27th February, 1866, was passed; that the intestate, Edmond Smith, was a child of the woman, born before that time, and living with them as their child, recognized as such by both, bearing the man’s name, educated as his child, and calling him father; and that after his mother had died, and he had gone out, earned money and purchased real and personal property, he had been taken sick and carried to Allen Smith’s house, and there died. After Ms death, he was alleged by the defendants,. Johnson aud Clark, and by many others of respectability, to-have been the son of one Randall Austin, and a bastard.</p> <p>The court below decided that Allen Smith was not the father of the intestate, and that said Johnson and Clark were his heirs at law and distributees, and as such entitled to his estate. From this decree Allen Smith appealed.</p> <p>The Act of Assembly, February 27th, 1866, Code of Virginia, 1873, chapter 103, section 4, was intended simply to legalize cle facto marriages had between colored persons, and in no wise to alter or affect the Bastardy Act, Code 1873, chapter 119, sections 5 and 6.</p> <p>So that the Statutes of Descents, in Virginia, applies alike to white and colored persons in respect to issue born out of wedlock, and the same proof of paternity and of recognition by the father before or after the marriage is necessary to legitimize such issue. 1 Minor’s Institutes, 421.</p> <p>Three things are essential under our Bastardy Act to legitimize the child.</p> <p>1. The paternity of the father.</p> <p>2. Recognition by him, either before or after marriage.</p> <p>3. The marriage of the parents.</p> <p>These must all concur, and must be established by conclusive proof. Code 1873, chapter 119, section 6; Ash v. Way’s Administrators et als, 2 Gratt. 204; Judge Brooke, in Coutts v. Greenhovy 2 Munf. 373. See also 5 Call, 439, and 3 H. and M. 225.</p> <p>The proof in this cause does not establish paternity of appellant, no recognition, but the reverse. This is shown</p> <p>a. By the fact that appellant brought suit in the first place against Edmond Smith’s estate as a creditor, which is incompatible with his claim in this suit.</p> <p>b. By the preponderance of the evidence taken altogether in favor of the appellees.</p> <p>c. By the number and character of the witnesses for appel-lees, and their better opportunities for learning the facts. Sixteen witnesses were examined. for them. Of these, .Dr. James Kincannon, Mrs. Susanah Kincannon, and Judge J. H. Eulton, and Sela Nave, Shepherd Austin, Gloud Adkins and Randall Austin (the last four colored) were members of the Kincannon family, to which Edmond Smith’s mother belonged, and all of whom testify that Randall Austin, and not Allen Smith, was the reputed father of the said Edmond.</p> <p>d. By the admission of Allen Smith himself that he was not Edmond’s father.</p> <p>e. By the statement of Edmond’s mother.</p> <p>/. By the positive testimony of Randall Austin, that he himself, and not Allen Smith, was the father of the said Edmond.</p> <p>rj. Of ten witnesses examined for appellant, not one of them was a member of the Kincannon family.</p> <p>The judge of the circuit court knowing many of the witnesses personally was able to judge of their credibility, and his decision is therefore entitled to the greater consideration.</p>

Argued at Staunton and decided at Wytheville. Appeal from three decrees of circuit court of Olarke county, ~ne rendered in vacation, August 1, 1883, in the cause of Joim ~1. Shackleford against 0. A. Beck and others; another ren~ lered May 23, 1884, in the consolidated causes of Shackleford ga~nst Beck and als, and of Candler aqainst Russell.

<p>Appeal from decree of circuit court of Tazewell county, entered at its May term, 1883, in a chancery cause wherein Gr. H. Neel and T. J. Neel were complainants, and R. Ii. Neel, Robert Neel, S. S. Dinwiddie and Joseph Stras, were defendants.</p> <p>Opinion states the case.</p>

<p>Error to two judgments of circuit court of Roanoke county, rendered 9tli October, 1884, the first in the action of assumpsit brought by Earns & Hickson against the Roanoke Land and Improvement Company, and tlie second in tlie action of as-sumpsit brought by Snead & Winston against the same company, for materials furnished by the plaintiffs respectively, as sub-contractors, to Julius C. Holmes & Co., as general contractors, to be used by them in constructing a certain building owned by the said company. The judgments were for the plaintiffs respectively, and to these judgments the said company obtained from one of the judges of this court, writs of error; which writs ivere heard together.</p> <p>Opinion states the case.</p>

<p>Error to judgment of county court of Haiiover county, rendered 15th April, 1885, in the case of the Commonwealth against Mason Webster.</p> <p>Oninion states the case~</p>

A. Stuart, G. W. Palmer and Joseph Jacques, partners, in the name of Stuart, Palmer & Co., complainants, against A. L. Hendricks and als., defendants. The bill was filed in the court below to enforce the lien of a judgment recovered by the plaintiffs, and amounting originally to the sum of $1400. The bill admits that various payments have been made on the judgment, but alleges that a balance of $500, or more, is yet due and unpaid.

Lit-terall, the appellant here, was complainant, and George W. Jackson and als. were defendants. Opinion states the case.

F. Berkowitz was defendant. The record shows that during the summer of 1883, said city, then the town of Roanoke, by its council, undertook, for sanitary effects, to drain a portion of its area, and to straighten the course of a small stream. The town having become incorporated as the city of Roanoke, with a hustings court, at the -Tune term, 1884, of said court, commissioners were appointed to condemn the land of said Berkowitz for said purpose, and to assess the damages.

<p>Appellate Court — First appeal — Second appeal. — It is the well settled rule of this court, that a question which has been decided upon the first appeal in any cause, cannot be reviewed or reversed upon any subsequent appeal in the same cause. Ins. Co v. Clemmitt, 77 Va. 366.</p>

<p>1. Personal Representatives — Heirs, <Sfc. — Judgment against the first in suit to which the last were not parties, affects not the last for want of privity; and is not evidence against them in suit to subject the decedent’s real estate ; and Code 1873, ch. 127, $ 3, does not alter the rule. Brewis v. Lawson, 76 Va. 36.</p> <p>2. Idem — Judgment a editor. — Yet, suit against personal representatives jointly with heirs, &c., by creditor of decedent, to collect out of real estate or otherwise, bond debt whereon judgment existed against personal representatives, is maintainable by evidence other than said judgment, though said judgment be set forth in the bill, the heirs, &c., having as full opportunity to defend against the debt as though no judgment existed.</p> <p>3. Idem — Case at bar. — Intestate left lands, slaves and other personalty; also widow and adult children, who divided among themselves the lands and chattels, leaving administrator only certain choses in action wherewith to pay debts. Account of administration, as nearly accurate as lapse of time and meagre evidence allowed, showed him in advance to estate with nothing wherewith to pay judgment obtained against him by decedent’s creditor, who sued, in chancery, administrator and his sureties, and the widow, heirs and distributees, to collect out of decedent’s unaliened lands, or otherwise, the bond debt represented by said judgment.</p> <p>Held :—</p> <p>1. The suit may be maintained against the heirs, &c., to collect the debt out of the unaliened lands, upon evidence other than the judgment.</p> <p>2. Equity will allow resort at once to said lands, instead of going upon the sureties of the administrator.</p>

<p>1. MARRIAGE-LeX loci-Lex dornicilii.-The law of the place of its celebration governs as to the forms of ceremony which constitute marriage. The law of the domicile governs as to the capacity of the parties. But the rule which requires that "a marriage valid where celebrated, is valid everywhere else," has no application to a marriage entered into in a foreign country, in contravention of the public policy and statutes of the country of the domicile of the parties which pronounce marriage between them not only absolutely void, but criminal.</p> <p>2. CONSTRUCTION OF Status-Bastards-Legitimation-Code 1873 ch. 119 §§ 6 and 7, providing that if a man having had offspring by a woman shall afterwards intermarry with her, such offspring, if recognized by him before or after the marriage, shall be deemed legitimate," and that "the issue of marriage deemed null in law, or dissolved by a court, shall, nevertheless, be legitimate," does not apply to and legetimate the offspring of a cohabitation in this state between a white person and a negro, when the parents subsequently have celebrated bet-tween them a ceremony of marriage outside of this state in some place where marriage between such persons is lawful.</p>

<p>Appeal from decree of circuit court of Pittsylvania county, rendered December 15th, 1882, in tbe chancery suit wherein W. H. Sims and wife, John R. Wilson and George W. Clark and others are plaintiffs, and E. D. Withers in Ms own right and as administrator of Edward Withers, deceased, Charles C. Miller, executor of George W. Withers, J. D. Blair, adm’r c. t. a. of George Wilson, deceased, William Thomas and others, are defendants.</p> <p>The object of this suit is to construe the will of George Wilson, deceased, and to recover the property bequeathed and devised thereby to his grandsons, Geúi’ge W. Withers and Edward Withers, both of whom died after attaining twenty-one years of age, and without lawful issue. The decree of the circuit'court being unfavorable to the defendants, they applied for and obtained from one of the judges of this court an appeal and writ of supersedeas.</p> <p>Opinion states the case.</p>

complete, and executed April 18th, 1874, by said special commissioners, and by them, or one of them, placed among the papers in the cause, was not binding on the obligors therein, on the ground that it bad been there placed with the understanding that it was not to be deemed completed until said Houston procured it to be executed by some approved surety. Opinion states the remaining facts.

<p>1. Injunctions — Dissolution—Continuance.—It rests in the sound discretion of the court to dissolve an interlocutory injunction upon the coming in of the answer denying the equities of the bill, or to continue it to a final hearing on the merits, especially where fraud is the gravamen of the bill, or where dissolution would result in greater injury than continuance till hearing.</p> <p>2. Idem — Continuance—Cases at bar. — Mercantile firms having on hand large stocks of perishable goods, confessed judgments for large sums in favor of certain preferred creditors. Executions were issued and levied, and the goods advertised for sale. Unpreferred creditors bring their bill charging fraud in the confession of said judgments, usury in the debts whereon the judgments were founded, want of jurisdiction in the courts wherein they were confessed, etc., and obtain injunction to sale, and appointment of receiver to take charge of the goods, and sell same publicly or privately, upon giving bond in sufficient penalty. Judgment creditors present their answers to the bill, and move to dissolve injunction in vacation. No depositions had been taken; but affidavits sustain the allegations of the bill, and receiver had executed ample bond and taken possession of the goods. The motion to dissolve was overruled, and the injunction continued to the hearing on the merits, the decision of all questions being reserved until then :</p> <p>Held :</p> <p>Such action is sustained by sound judicial discretion under the circumstances, and should be affirmed.</p>

Eudesill, deceased, against John G-. Rudesill’s beirs, Thomas G. Godwin, George W. Carper and als., creditors of decedent, by which decree Jacob Cronise, who was no party to said canse, was ordered to pay to William A. Glasgow, receiver in said cause, $616.01, as of June 1st, 1883. From this decree Jacob Cronise obtained an appeal, and writ of supersedeas. Opinion states the case.

<p>1. Insurance — Specific performance — Bill.—Equity will enforce performance of a contract of insurance made with an agent having authority to issue policies or to bind the company to issue policies, in favor of one who has paid the premium. Woody v. Old Dominion Ins. Co., 31 Gratt. 362. But the bill must on its face distinctly state that such contract was made, and show when, where, how and by whom it was made, and that the person making it had authority to bind the company. Haskins v. Ag. F. Ins. Co., 78 Va. 700.</p> <p>2. Idem — Agents—Powers.—Insurance company may empower its agents to make contracts of insurance, or may limit their authority to soliciting applications, which are to be forwarded to its board of directors, who alone may be authorized by its constitution and by-laws to make such contracts.</p> <p>3. Idem— Charter and by-laws — Notice.—Persons dealing with a corporation are affected with notice of the provisions of its charter, constitution and by-laws. Rolfe v. Rundle, 13 Otto, 222.</p> <p>4. Idem — Contract—Agent to solicit— An agent whose powers are limited by the charter, constitution or by-laws of the company, to receiving and forwarding applications for insurance, together with the premiums, to the company for acceptance or rejection, can make no contract of insurance binding the company.</p> <p>5. Misrepresentations — Title—Encumbrance.—Any material misrepre*-sentation will avoid a policy. But such is not the effect where the misrepresentation, if any, was simply technical, and unintentional and immaterial withal.</p>

Argued at Wytheville, but decided at Staunton. Appeal from decree of circuit court of Roanoke county, rendered October 9th, 1884, in the chancery cause wherein Robert McClellan, executor of Elizabeth Coles, deceased, was plaintiff, and John Coles and others, the devisees and legatees of said Elizabeth Coles and others, were defendants.

were defendants. Tbis case was argued at Wytbeville, but decided at Staunton, Tbe case is fully stated in tbe opinion of Judge Lacy.

Rush, administrator, with the will annexed, of Henry Jewett Churchman, dec’d, plaintiffs, cujabist John S. Churchman and others, heirs… Held: that there was but one legatee — the corporation named in the will — and that as it appeared by the constitution and by-laws of the corporation that it had two departments, one directed to domestic and the other to foreign missions, the intention of the testator was that the corporation should take the property bequeathed and divide…

Argued at Bichmond and decided at Staunton. Appeal from decree of circuit court of Campbell county, rendered 28th October, 1882, in the suit of John II.

Argued at 'Wytheville, and decided at Staunton. Held: upon the bill taken for confessed as to Preston, that the deed from Heiskell to Preston did not convey the said excess, and directed an account of rents and profits.

Appeal, argued at Richmond and decided at Staunton, from decree of hustings court of Danville, in cause wherein S. D. Hicks, for himself and others, was plaintiff, and B. A. Davis and others were defendants. The object 'of the suit was to assert and satisfy certain judgments against said Davis, upon certain lands claimed and held by John Bowman and others under Peter Bowman. Opinion states the facts.

Bell’s administrator against Jonas P. Bell’s administrator and others. The bill was filed at the July rules, 1880, by the administrator of Emily Bell, deceased, who is the appellee here, against Washington Eerguson, late sheriff of Clarke county, and as such, committee administrator of Jonas P. Bell, deceased, and the sureties on his official bond.

81, with interest from October 12th, 1882, and costs, in favor of the plaintiff in the action of assumpsit of S. P. H. Miller against The Shenandoah Yalley Kailroad Company. Opinion states the case.

P. Linkenhoker, a certain road from his tract through the land of Michael Graybill, to a public highway. Opinion states the case.

Argued at Richmond, and decided at Staunton. Appeal from decree of circuit court of Albemarle county, rendered May 15th, 1883, in the chancery cause under the style of Andrew J. Dawson against B. H. Dawson and others. From this decree Peter P. Turner obtained an appeal to this court. Opinion states the case.

Argued at Wytheville, but decided at Staunton. Appeal from seven interlocutory decrees of circuit court of Wythe county rendered from March term, 1883, to April term, 1885, inclusive, in the cause of D. II. Porter against W. R. B. Horne, W. L. Yost and others. Opinion states the case.

<p>Attachments — Affidavits.—Every averment in an affidavit to support an attachment under Code 1873, ch. 148, sec. 1, must be stated as a fact, absolutely, and upon affiant’s own knowledge, and not upon belief, or information and belief.</p>

against W.W. Major and als.; and George W. Johnson’s executor against G. A. White and als.; and W. G. Bausemer, for etc. against G. A. White and als., which were heard and acted on together.

T. Paxton is complainant, and ¥m. Stuart, J. W. Stuart, 0. B. Thomas, A. J. Stalnaker and Isabella, his wife, J. PI. H, Figgat and als. are defendants. Opinion states the case.