Volume 82 — Virginia Reports

S. Sherwood, Peter Dufrane and others, claiming to be the legatees of the deceased. The object of the suit was to impeach a paper writing propounded by the defendants as the will of the decedent. The jury imp'aneled to try the issue of devisavit vel non, rendered their verdict in the affirmative. The court ordered the said paper writing to be recorded as the true last will of the decedent.

Plaintiff owned a large warehouse in said city, built in 1866, for the purposes of a wholesale commission business, and constantly used as such up to the leasing thereof by the defendant company, January 1, 1876, by which it was used for storing nails and bar-iron, after having in its own way, according to its own plans and by means of its own servants, attempted to make the building suitable for its purposes.

<p>1. Appellate Court—Two trials—Case at bar.—At first trial verdict was for plaintiff and set'aside; and he excepted ; at second, verdict was for defendant—</p> <p>Held :</p> <p>If first verdict was erroneously set aside this court will enter judgment on that verdict and set aside all subsequent proceedings.</p> <p>2. Idem—■ Verdict set aside—Evidence certified.—Where evidence is conflicting and involves credibility, and the verdict is set aside and the evidence is certified, this court will look at the whole evidence, and sustain the verdict, unless it be against the law or the evidence, or without evidence.</p> <p>3. Master and Servant—Negligence—Case at bar.—Straus & Stern were partners in trade. Straus, individually, owned a horse and phaeton. He sent his servant with horse and phaeton to meet and convey Stern to their store. Whilst returning, driver recklessly drove against Muse, knocking him down and injuring him. In action by Afuse v. Stern—</p> <p>Held :</p> <p>1. Relation of master and servant did not exist between defendant and driver, and plaintiff cannot recover.</p> <p>2. Defendant’s mere presence at the injury does not render him liable for the driver’s negligence.</p>

McKenney, assignee of John Critcher, is complainant, and Susan Sutton, widow, and Walter, William, Lucelia, and Annie Sutton, children and heirs of William Sutton, deceased, and others, are defendants. The object of the suit was to enforce a judgment lien on land. The defendants (appellants here) pleaded the lapse of ten years between date of judgment and institution of this suit without issuance of execution.

<p>Lands—Charges—Satisfaction—Sales free from encumbrances—Case at bar.—Testator devised lands to J. charged with an annuity to P. To pay it J. sold “White Marsh.” In a suit, J. convened the annuitant, P., and the purchaser, H. The court, with the assent of P., ratified the sale, allowed J. to collect one-third of the purchase money for his own use, and secured two-thirds on “White Marsh,” the interest thereon to be paid to P. so as to meet the annuity. For several years all went well. But H. failed. The court resold “White Marsh ” for a sum insufficient to raise the annuity. P. instituted suit to subject the other lands to supply the deficiency. It was decided by this court (see 78 Va. 313) that the said arrangement exonerated “White Marsh,” at least, from the encumbrance of the annuity. After selling “White Marsh” in 1870, J. purchased “ Ditchley.” In 1872 he made a trust deed on it to secure a debt to the P. E. T. Seminary. In March, 1884, sale was advertised under the trust deed. P. filed his bill alleging that “Ditchley” had been paid for by J. with part of the proceeds of the sale of “White Marsh,” and was therefore liable for the deficiency of his annuity, and obtained an injunction to the sale.</p> <p>Held :</p> <p>The interest on the deferred payment secured on “White Marsh”' was made payable to P. as an equivalent for the annuity given him by the will, so far at least, as the annuity affected “White Marsh,” or the amount of the proceeds of sale which was paid to J.; and even if “Ditchley ” was paid for with money so paid to J., no charge thereon would attach in favor of P.</p>

R. Weaver was defendant. Verdict was for plaintiff for $1,783.86. Defendant moved for a new trial on the ground that the verdict was contrary to the law and evidence. The circuit court overruled the motion. Whereupon, the defendant excepted, and the court certified the evidence and gave judgment according to the verdict. The defendant obtained a writ of error and supersedeas.

Nash was plaintiff, and the Richmond, Fredericksburg and Potomac Railroad Company was defendant. The verdict and the judgment were for the defendant, and the plaintiff obtained a writ of error and supersedeas from one of the judges of this court.

H. Lane’s Executrix v. Day Lodge and als. The object of the suit was to settle the estate of the decedent. In that suit D. W. Perkins, administrator, with the will annexed of David A. Perkins, deceased, filed on March 22, 1882, a petition in that suit setting up a claim against said estate. The circuit court dismissed the petition, and the said administrator obtained an appeal to this court.

Penn v. C. H. Ingles and als., therein pending. The appellee, Ingles, was county treasurer of Henry county from the year 1873 to 1881, inclusive. The appellant, Geo. R. Hairston, served for several years of that time as one of his deputies, the appellant, Penn, being one of the sureties on the official bond of. Hairston, which was executed in December, 1876.

<p>Personal Representatives—Compromises—Liability—Case at bar. An administrator, acting in good faith, in 1863, compromised at 50 cents in the dollar in the currency of the country, an unestablished, unadmitted claim, not a lien, dated December, 1840, of his intestate’s estate; which, though it had been asserted for more than twenty years and been reported by a commissioner that length of time before, yet had met with some adverse decision in the circuit court, and was affected by all the uncertainties of flagrant war. Suit by the distributees charging administrator and the debtor with collusive devastavit nearly twenty years later, was dismissed by the circuit court. On appeal—</p> <p>Held :</p> <p>The compromise was valid, and no devastavit was committed, and the suit was properly dismissed.</p>

<p>Wills—Construction—Case at bar.—Property was bequeathed to L. for her life, with power to apportion same at her discretion, between T. and D. By her will, L. provided thus: “Said property I leave to T. and D.” (D. was then a child aged two years). “When this child is old enough to be sent to school, I wish T. to educate and give her $5,000 as her portion.” T. accepted the bequest, but did nothing towards fulfilling the charge until D. was ten, when, by, &c., she brought her bill for construction of the will and payment of what she was entitled to under it. She was a non-resident, but had a guardian in this State, where the property is. An account was directed of the amounts coming to her for her portion and education, and of the time when they bore interest. Report shewed that her education should begin at five and continue till she was eighteen, and that $216 from five to ten, and $226 from ten to eighteen years of age, should be allowed her annually for education, and that the property bequeathed to T. was worth $14,230. Upon T.’s exceptions—</p> <p>Held :</p> <p>1. The value of the property is immaterial. T. accepted the bequest cum onere.</p> <p>2. Directing the account and the payment of a moderate sum to the domestic guardian for immediate educational purposes, before in terms construing the will, was not improper, but was, in effect, a partial construction.</p> <p>3. From five to eighteen is the scholastic period fixed by the general free school system of the State, and is reasonable.</p> <p>4. D.’s portion became payable and interest-bearing on the day of her arrival at five years of age, and her annual allowances for education, respectively, on that same day and on each successive anniversary thereof, until her arrival at eighteen years of age. •</p>

Wiley Davis and others, as trustees of Springfield Division, No. 167, Sons of Temperance, are plaintiffs, and George W. Mayo and others are defendants. The verdict of the jury was for the defendants, and the trial court entered judgment accordingly. During the trial the plaintiffs excepted to three decisions of the court given against them, and tendered their three bills of exceptions, and obtained a writ of error and supersedeas from one of the judges of this court.

<p>Error to judgment of circuit court of Giles county refusing writ of error to judgment of county court, sentencing Joseph A. Bailey, whom the jury had found guilty of rape, to ten years confinement in the penitentiary. Prisoner’s motion for a newr trial being overruled, he excepted and obtained a writ of error and supersedeas from one of the judges of this court.</p>

Pruner and Ellen Clark, were each sentenced to pay a fine of fifty dollars and costs, they having been found guilty by the jury on an indictment for lewd and lascivious cohabitation.

The object was to recover damages inflicted on the wife by the negligence of the defendant company. The jury found for the plaintiffs', and assessed their damages at $1,000, and the court entered up judgment in accordance with the verdict. At the trial the wife was allowed to testify for the plaintiffs against the objection of defendant.

L. Hambrick was plaintiff, and the Roanoke National Bank was defendant. The action was to get damages for the bank’s negligence in failing to protest for non-payment a note left for collection by the plaintiff. The verdict was for $490.90, with interest from 7th October, 1884, and the judgment was accordingly. At the trial several points were raised and put into the record, which are considered in the opinion.

<p>1. Practice at Common Law—Demurrer to evidence.—It is the settled rule that by demurring to the evidence the demurrant waives all evidence on his part that conflicts with that of the other party, admits the credit of the evidence demurred to, admits all inferences of fact that may be fairly deduced from the evidence, and refers it to the cour,t to deduce all fair inferences from the evidence. Trout v. Va. & Tenn. R. R. Co., 23 Gratt. 637.</p> <p>2. Idem—Declaration—Negligent injury.—A declaration need not state whether plaintiff was an employee or a mere trespasser, but is sufficient, if it state when, where, in what manner, and under what circumstances plaintiff was injure^, by the default, negligence, and improper conduct of defendant’s servant, who was then and there in care and management of certain described machinery of defendant.</p> <p>3. Appellate Courts—Two verdicts—Judgment.—The usual practice of appellate courts is to consider entire record and pass on errors as committed, and, generally, to reverse judgments for any matérial error, not waived, without looking to subsequent proceedings. And where a right verdict is set aside, they will restore it and enter judgment on it, and reverse subsequent judgment inconsistent with previous right verdict. But where subsequent judgment is consistent with previous right verdict, it will be affirmed. Yet, where plaintiff was entitled to judgment on first verdict set aside on defendant’s motion, and first and last verdicts arrive at same result, the only difference being that the last finds a larger amount of damages for injury for which defendant is in damages responsible, plaintiff is entitled to judgment on last verdict.</p> <p>4. Idem—Case at ba/r.—Where two verdicts are rendered in succession, giving plaintiff damages for injury received by him through negligence of defendant, and each, in turn, is set aside on defendant's motion, and a third verdict is rendered, giving plaintiff a larger amount of damages, subject, however, to a demurrer to the evidence, which is erroneously decided by court below against plaintiff, he is entitled to judgment on last verdict.</p> <p>5. Pbincipals—Employees—Negligent injuries—Liability—General rule—Exceptions.—The general rule is well settled that the principal is not liable to one employee for an injury resulting from the negligence for a co-employee. But exceptions to this rule are equally well settled. These are (1), where the injury is occasioned by exposing the employee to risks not within his contract of employment; (2), where the negligent employee, whatever his grade or title, exercises supervision or control over the injured employee, principal must answer for the negligent acts of the former whereby the latter is injured without fault on his part; (3), where principal undertakes to run dangerous machinery with insufficient help, whereby the employee is injured, the principal is liable.</p> <p>6. Idem— Case at bar.—The plaintiff, a boy of thirteen years of age and little experience with machinery, is hired by his father, “to sweep, carry water, and fill the buckets with quills,” in the weaving department of the defendant company’s cotton mills, the machinery whereof was then being run with insufficient help, and is placed by an employee then representing the defendant company, to do work to do which he had not been hired, and he is thereby injured—</p> <p>Held :</p> <p>The defendant company is liable in damages to the plaintiff for the injury.</p>

<p>1. Lands—Unrecorded contracts—Creditors.—Under Code 1873, eh. 114, see. 5, unrecorded contracts for the sale of real estate are void as to creditors with or without notice. Guerrant v. Anderson, 4 Rand. 208.</p> <p>2. Idem—Case at bar.—-In case here the evidence proves that there was a written contract for the sale of real estate that was not recorded befe .re a creditor had got and docketed his judgment against the vendor; and the ease does not come within the principle of Floyd v. Harding, 28 Gratt. 401.</p>

T. Wynn was defendant. From this judgment Wynn obtained a writ of error and supersedeas from one of the judges of this court.

A. McConkey, the personal representatives of J. McG. Kent, J. A. Langhorn, and others, are complainants, and F. Bell and wife, and others, are defendants, and in the cross-bill of John T. Cowan and wife, complainants, and said F. Bell and wife and other devisees of James R. Kent, deceased, defendants.

Exceptions were taken to several rulings of the county court, and a writ of error and supersedeas was obtained by the prisoner from one of the judges of this court.

B. Stimpson was complainant, and William M Bishop, Robert W. Harman, Gordon G. Thorn, and others were defendants The original bill, filed at the July rules, 1880, alleged that in the year 1880, the plaintiff was induced by the defendant, Bishop, to leave the county of Floyd, where be then resided, to inspect, with a view to purchase, a certain tract of land on Clear Fork creek, in the county of Bland ; that this land was in the vicinity of Bishop’s residence, and was in the…

Kent’s administrator was complainant and .James 14. Kent’s administrator and others were defendants. The object of the suit was to obtain relief in equity and to perpetually enjoin a judgment obtained March 12th, 1874, on the law side of said circuit court, by the said defendant against said complainant for $5,600, with interest from June 6th, 1845, till paid, subject to several credits. The decree dissolved the injunction and dismissed the bill.

<p>Appeal from decree of circuit court of Ro anoke county, rendered October 10, 1884, in a chancery caiise wherein John N. Strickler and Lucy R, his wife were complainants, and Nathaniel B. Hartman was the defendant. There was an issue of devisavii vel non in the cause to determine whether a writing which N. B. Hartman offered as the will of George Hartman, deceased, was the will of the decedent or not. . The jury-found that it was not. N. B. Hartman moved the circuit court to set aside the.verdict and award him a new trial of the issue. The motion was overruled; and N. B. Hartman obtained an appeal to this court.</p> <p>At the trial, on the motion of the defendant, the court below gave-the jury four instructions, which are as follow's:</p> <p>1st. That every person not of unsound mind, nor a minor under eighteen years of age, nor a married woman, is entitled under the laws to make a will.</p> <p>2d. That a person who has made a will is of sound mind is presumed, and the burden of proving the contrary rests on him who alleges it.</p> <p>3d. That fraud and undue influence (which is a species of fraud) must not be presumed, but must be clearly and strictly proved, and the burden of proving it rests on him who alleges it.</p> <p>4th. That the influence to vitiate a will must amount to force and coercion, destroying free agency. It must not be the influence of affection and attachment; it must not be the mere desire of gratifying the wishes of another, for that would be a very strong ground in support of a will. Further, there must be proof .that the will was obtained by this coercion, by importunity, which could not be resisted; that.it was made merely for the sake of peace, so that the motive was tantamount to force and fear; and that, if from the evidence, the jury believe that George Hartman, at- the time of making the will in controversy, had sufficient understanding to comprehend the nature of the business and consented freely and voluntarily to the special matter about which he was engaged, they shall find for the plaintiff upon the issue joined. '</p>

May, 1885, in an action of trespass oh the case in slander, wherein John Cundiff was plaintiff and David Harman was defendant. The jury found for the plaintiff, and assessed his damages at $800, and. the court entered up judgment accordingly. At the trial five bills of exceptions were taken by defendant to the rulings of th'e court, and a writ of error and supersedeas obtained to said judgment from one of the judges of this court.

C. Wysor was plaintiff and the Norfolk and Western Railroad Company was defendant. Verdict was for plaintiff for $550 damages. On divers points, saved at the trial, the defendant company obtained a writ of error and supersedeas.

L. Wharton was plaintiff and M. A. Carter was defendant. Judgment was rendered against defendant for $609.25 and costs. Before the trial, defendant’s motion for a continuance being overruled, he excepted. The evidence was certified. And to the judgment he obtained from one of the judges of this court a writ of error and supersedeas.

S. Forney and Thomas Baumgardner were plaintiffs, and John B. Barrett, in his own right, and as trustee for the separate use of Rebecca H. Barrett, his wife, doing business in both characters, in the name of J. B. Barrett & Co., were defendants. The purpose of the suit was to have specific performance.of a parol contract for the sale of one-half of a tract of land conveyed to J. B. Barrett & Co. and D. S. Forney, by C. EL Allison.

Upon the petition filed in June, 1886, to- this court, by Hon. H. A. Jameson, who was elected in 1882 to hold the office of county judge of Pulaski county for the remainder of the term, which ended 31st December, 1885, for a writ of peremptory mandamus to compel Hon. Isaac Hudson, who had been elected' to fill that office for the term of six years next ensuing, to surrender that office to the petitioner.

Roanoke, rendered 23d April, 1886, in a chancery cause therein pending wherein J. G. Johnson is complainant and the Roanoke Land and Improvement Company is defendant.

Willis and Henry C. Lester, against Jackson Young, J. W. Hartwell, trustee, and others.

Dove, who had been found guilty by the jury on an indictment for grand larceny, and whose term of confinement in the penitentiary was by them fixed at the term of five, years. At the trial exceptions were taken to several rulings of the court; and to said judgment of the circuit judge, prisoner obtained from one of the judges of this court a writ of error and supersedeas.

Shoemaker, administrator of H. S. Kane, deceased, against W. H. Nickels, seeking to enforce by foreign attachment the collection of a conditional fee, which is set up in the bill. The circuit court decreed that complainant recover of defendant the sum of $2,178.18, with interest from the date of the decree till paid, and costs. From this decree defendant appealed.

v. E. W. Saunders, trustee of M. Waid; (2) , Pemberton & Penn v. The Same; and (3), The Glamorgan Company v. The Same. The plaintiffs caused their executions, issued on judgments obtained against Waid since the date of the trust deed executed by Waid to said trustee, to be levied on personal property conveyed thereby. Saunders claimed the property under the trust deed. The plaintiffs indemnified the sheriff.

Green was plaintiff, and William H. Ward and John T. Hite were defendants. There was judgment for the defendants; and the plaintiff excepted and obtained a writ of error and supersedeas from a judge of this court.

Barksdale, administrator of O. B. Barksdale, deceased, was plaintiff, and the Virginia Midland Railroad Company was defendant. The evidence was certified, and the defendant company obtained a writ of error and supersedeas from one of the judges of this court.

<p>Error to judgment of circuit court of Greene county affirming the judgment of the county court of said county, rendered at its August term, 1885, sentencing to hard labor in the penitentiary, for the 4erm of eighteen years, one Joseph Fry, whom the jury had found guilty on an indictment for rape, and whose term of imprisonment they fixed at that period. From this judgment a writ of error and supersedeas was granted the prisoner by one of the judges of this court.</p>

Burke were co-sureties, and which Thomas Ayre had been compelled to pay. This judgment came into conflict in respect to priority with a judgment in favor of H. H. Halley’s administrator against said Burke, which had, after it was barred by the statute of limitations, been revived by scire facias through Burke’s collusion. The decree was adverse to Ayre’s administrator, who appealed to this court.

H. Hogwood, for, &c, was plaintiff, and The Fire Association of Philadelphia, was defendant. Verdict and judgment were against the defendant, which, on sundry exceptions to the rulings of the court below, obtained a writ of error and supersedeas from one ',of the judges of this court.

<p>1. Corporations—Dividends—Capital stock—Directors—Diability.— If board of directors of corporation, when it is insolvent, declare a dividend of net profits, the directors concurring in the act, in their individual capacity, are jointly and severally liable to the corporation’s creditors for the amount of the capital stock so divided. Code 1873, ch. 57, sec. 33.</p> <p>2. Idem:—Insolvency—Proof—Case at bar.—The question of the alleged insolvency at date of the dividend is one of fact, and the insolvency must be established by proof. In case at bar it was not proved.</p>

<p>Error to judgment of circuit court of Goochland county, rendered November 7th, 1883, in the proceeding by scire facias to revive a judgment of said court in favor of the defendant in error, Shelton, against the plaintiff in error, Dabney. The judgment was adverse to Dabney, and he procured a writ of' error and supersedeas from a judge of this court.</p>

Slemp and Olarinda J., his wife, complainants, against Daniel EL Bruce and wife and others, the heirs-at-law of Wm. N. G. Barron, deceased. The decree was adverse to the defendants, Bruce and wife, and they obtained an appeal to this court.

H. Dorr, a non-resident of this State, and Robert Gibboney, trustee of Thomas L. Preston, as garnishee, holding funds belonging to said Dorr; and on an injunction awarded on the prayer of said Gibboney’s executrix in her cross-bill, which, after his death, she filed in the circuit court. In July, 1861, an order of publication was executed against the non-resident defendant, who appealed from the decree rendered to this court.

The object of the suit was the partition of a certain tract of land, of which Nancy Griggsby died seized and possessed. The bill was filed by Solomon Osborn and Eliza W., his wife, the latter and the appellant and the appellee, Nancy Griggsby, being children and the heirs-at-law of the decedent.

& Co., for rehearing the decree made May 7, 1880, in the cause of Logan Bros. & Co., against G. W. Taylor and others; and from decree of said court rendered April 27, 1881, in said cause, on said petition, reversing the said decree of May 7, 1880, and holding that the houses and lot in controversy, which had been bought with P. L. Parker’s money and conveyed to said Taylor, was subject to the debts and contracts of the latter.

Gibboney, executrix of Robert Gibboney, executor of said Jacob Kent, and others, defendants. The decrees were unfavorable to the executrix, and she obtained an appeal and supersedeas.

<p>Public Free Schools—County superintendents—Term—Joint resolution.—The office of these superintendents is a constitutional office, and the term of office is fixed by the State constitution at four years. The joint resolution, approved February 26, 1886, is repugnant to. the constitution and void.</p>

Stuart Crockett, as administrator c. t. a. of Elizabeth E. Crockett, deceased, and as committee of Henry E. Crockett, a lunatic, &c., is plaintiff, against O. E. Mayer and Maria B., his wife, William Gibboney, Alex. F. Matthews and others, defendants.

Neff against Baker & Triplett. Defendants demurred to plaintiff’s bill on the ground that it was without equity. The circuit court sustained the demurrer and dismissed the bill. Plaintiff appealed.

sued out under Code 1878, ch. 148, sec. 11, by James Culbertson, plaintiff, against Simon Stevens, a non-resident, defendant. Afterwards, on their petition, the heirs of H. S. Kane, deceased, were made parties defendants. At the hearing, the bill was dismissed, and an appeal was allowed the representative of James Culbertson, who had died.

sheriff, and as such administrator of Charles Chase against Philip E. Frederick’s heirs. The decree allowed a setoff of $432 against the principal of a judgment as of the date of the bond whereon it was founded, in pursuance of a contemporaneous written agreement to correct all errors and mistakes. Fr,om this decree Danner’s administrator appealed.

. Appeal from decree of circuit court of Ciarte county, entered January 1st, 1883, in the chancery causes of D. Fisher’s administrator against Francis E. Sowers’ administrator and others (other causes being heard therewith). And the defendants, Fannie M. Morgan, George K. Sowers, Hillary Burch and Elizabeth Burch, his wife, being aggrieved by the said decree, obtained from it an appeal and supersedeas. In 1840 Geo.

Aiken, plaintiff, against the Virginia Fire and Marine Insurance Company, defendant. This was an action of assumpsit against the Virginia Fire and Marine Insurance Company on a policy of fire insurance for the sum of twenty-five hundred dollars. The defendant in error was the plaintiff below. The alleged loss occurred on the 18th of August, 1884. The action was commenced on the 16th of March, 1885, or six months and twenty-six days thereafter.

Merritt against James L. Swimley and Mary D., his wife, remanding the infant, Sarah E. V. Merritt, back to the custody of the respondents, and dismissing the petition and writ at the cost of said Merritt, who obtained a writ of error.

Brown, Mary A. Woodward, and Samuel M. her husband. In 1859 John Sibert sold and conveyed to John Koontz a tract of land situate near Bridgewater, in Rockingham county, containing about one hundred and twenty-four acres. In 1862 the land was sold and conveyed by Koontz to Bernard S. and Mary B. Brown. At that time there was due by Koontz to Sibert a balance of purchase money amounting to about $3,700, which the Browns assumed to pay as part consideration of their purchase.

Hoover was defendant. The judgment being for the defendant, the company, on the bill of exceptions taken on the trial, obtained a writ of error and supersedeas.

<p>1. Appellate Court—Jurisdiction—Administrator— Wards.—Where amount decreed against administrator is within the jurisdictional limit, this court has jurisdiction of his appeal, though the amount decreed to each ward or distributee falls below that limit; the aggregate being the amount in controversy. Atkinson v. McCormick, 76 Va. 791.</p> <p>2. Fiduciaries—Guardian de facto.—Administrator purchasing the adult heirs’ shares of their ancestor’s land, and entering upon and receiving the rents and profits of the whole, will in equity be held accountable as guardian de facto of the infant heirs during their non-age, and as their agent afterwards, for their share of those rents and profits. Peale v. Thurmond, 77 Va. 753.</p> <p>3. Chancery Practice—Circuity of action.—In such case, decree for the infants against their de facto guardian’s administrator for whole amount due them for rents and profits is not error, though, after guardian’s decease, his real estate, including the infants’, had been partitioned among his heirs, and one particular heir had held the infants’ part, as his co-heirs would have had to contribute to his compensation, and such decree avoided circuity of action.</p>

French was plaintiff, and W. T. Williams was defendant, and in the other, said Williams was plaintiff, and said French was defendant. The object of these actions was to test the rights of the respective parties to a certain “ way,” and not to recover damages. All matters of law and fact being left to the presiding judge, the judgment was in favor of Williams, and French obtained a writ of error and supersedeas from one of the judges of this court.

<p>Appeal from decree of circuit court of Augusta county, rendered June 25, 1886, in the creditors’ suit wherein McCarty & Hurlburt and others, creditors of D. B. Hamaker, were complainants, and D. B. Hamaker, Amilda B. Hamaker, and A. C. Gordon, trustee, were defendants. The aggregate amount of the claims asserted by the complainants was $3,904.50. The claim of McCarty and Hurlburt was for $433.46. J. W. Tuft’s claim was for $87.53, which was assigned by endorsement on the abstract of the judgment to McCarty & Hurlburt. The master audited and allowed each claim separately to the owners thereof, but took no notice of the assignment in his report, which was confirmed by the court, without recognition of the latter claim as the property of McCarty & Hurlburt as assignees ■thereof. The object of the suit was to annul, as fraudulent, a trust deed made by D. B. Hamaker to A. C. Gordon, trustee, of his entire stock of goods, consisting of jewelry, watches, &c., in Staunton, to be sold, and out of the proceeds to pay, 1st, $1,728 to himself on account of his homestead exemption; 2d, a debt of $4,265 to his wife, Amilda B. Hamaker; and, 3d and 4th, on the claims of his other creditors, and to enjoin the sale under the trust deed until further order. On reference, the master reported in favor of the validity of the claim to the homestead exemption, and of the debt to the wife, and ascertained the amounts of the debts due to the several other creditors ; and the court below confirmed the report, and dissolved the injunction. From this decree McCarty & Hurlburt appealed to this court, where they were met with a motion to dismiss, on the ground that their claim was below the jurisdictional limit.</p>

<p>1. Lands—Adversary possession—Forcible entry— Waste—Injunction— Case at bar.—In 1844, mountain land was patented to H., who held actual, exclusive possession thereof by open, notorious^ and habitual acts of ownership, paying the taxes, &c.—the county record show-no other claim to it—-for more than the statutory period of limita- ■ tion. In 1882, after the land had been purchased and paid for at a judicial sale of the land of H., B. entered forcibly under claim of title under an older patent, and was committing waste on it when the purchaser obtained an injunction. On motion to dissolve—</p> <p>Held :</p> <p>On strength of such possession merely, without regard to title otherwise, the injunction should be perpetuated.</p> <p>2. Idem—Queere.—Case at bar having been decided by the court under agreement of the parties, that the cause should be submitted to the court “for the determination of the question of title to the land as between the plaintiff and the defendants, and all other matters and questions in controversy in the cause”.; is such proceeding tobe regarded as an action of ejectment, or as a chancery proceeding and injunction, hy which the determination of the question of the title as between the plaintiff and the defendants was submitted to the court, without reference to the question as to there being an outstanding title in a third party ?</p>

Lindsay against Sarah Brown, and P. McCormick's executors against John T. Lindsay, heard together. The object of the suits was to subject the lands of William, Huldah and Margaret Berry to payment of hens.

<p>Appeal from decree of circuit court of King George county, rendered November 19, 1879, in the chancery cause of Leonidas Scott and Martha A., his wife, plaintiffs, against J. H. Rowland, doing business in the name of J. H. Rowland & Go., George D. Johnson and George W. Griggsby, sheriff of said county, defendants. The decree being adverse to Scott and wife, they obtained an appeal and writ of supersedeas from one of the judges of this court.</p>

G. Church was plaintiff, and Mary J. McMullin and Wm. A. Richmond were defendants, for an allegedfalse and malicious suing out by the defendants of an attachment, and the levying of the same upon the property of the plaintiff. The jury gave the plaintiff $3,000 damage, for which sum judgment was rendered.

P. Burwell against Charles Poindexter and others. The original bill was filed in July, 1880, against Charles Poindexter as trustee, and in his own right, as the only defendant. An amended bill filed in August, 1882, made additional defendants of George, Alfred, William M., John E., and Thomas Poindexter, the devisees under the will of their father, James H. Poindexter, deceased.

The circuit court decreed that the said Burger, as such administrator, and Ellen, Rufus, Climer, Vara, and Virginia Switzer, widow and heirs of Jonathan Switzer, deceased, pay the complainant $542.20, with interest and costs. From this decree the said widow and heirs obtained an appeal to this court.

Cunningham, plaintiff, against James M. Millner, James M. Richeson, and Charles R. Rucker, trustees, and Samuel Richeson and James M. Dillard, defendants. The object of the suit was to enjoin sale of land under trust deed, and to get compensation for the ■deficiency. At the hearing the injunction was dissolved, and the bill dismissed. The plaintiff appealed.

Sandridge, named therein as executor, was the propounder, and Callie Tucker, L. Miller and Emma his wife, Erastus Watts and Nannie his wife, and Charles, James, and Lucy Tucker were the contestants. The jury impaneled to try the issue of devisavit vel non, found a verdict that the paper writing propounded as the will of decedent was not his will. The court, on motion of propounder, set aside the verdict and awarded a new trial. From this order the contestants appealed.

<p>1. Equitable Jurisdiction and Relief—Fiduciaries—Laches.—If, from delay to demand settlement, no correct account of administration can be rendered, and any conclusion arrived at, must at best be conjectural, and the transactions are so obscured by time, loss of evidence, and death of parties, as to make justice difficult, the courts will not relieve the plaintiff.</p> <p>2. Idem—Idem—Case at bar.—L. qualified as executor of his father in 1841. Suit for settlement was instituted 37 years afterwards. Both plaintiff and defendant were old and died within a few months. Estate was large. Much money had been paid out to legatees. L. had actually donated to plaintiff a farm worth double her claims. Witnesses were dead, vouchers destroyed by public enemy during civil war, and a correct account had become impossible; whilst the delay to demand settlement sooner, was unexplained—</p> <p>Held :</p> <p>The court will leave the parties where they contentedly rested so long, and dismiss the bill.</p>

<p>Railroad Companies—Land damages—Broken promises—Remedy — Demurrer lies to bill to set aside order made under Code 1873, eh.' 56, confirming report of commissioners assessing damages to landowner for part taken for company's purposes, and to residue of tract beyond peculiar advantages, although bill avers that company faslely promised to establish a depot on said part, and that by such promise commissioners were induced to assess less damages, and land-owner not to except to their report; the land-owner’s remedy being at law for damages for breach of promise.</p>

<p>Appeal from decree of circuit court of Chesterfield county, rendered 15th August, 1882, in the chancery cause of William C. Lipscombe, complainant, against Lauriston C. Moore, defendant.</p>

<p>Criminal Proceedings—Jury trial—Waiver.—The defendant in a criminal prosecution cannot waive a trial by a jury, and submit all the matters of law and fact to the determination of the court, there being in this State no statute authorizing an issue joined upon a plea of not guilty in such prosecution in a court of record to be tried otherwise than by a jury. Const., Art. I, sec. 10; Code 1873, ch. 158, sec. 36.</p>

<p>Criminal Proceedings—Jury trial—Waiver.—In this State defendant cannot waive a trial by jury in a criminal prosecution in a court of record.</p>

<p>1. Criminal Proceedings—Constitution—Jeopardy.—So much of section 25, chapter 17, Acts 1877-8, as declares that “ if a verdict be set aside on the motion of the accused, and a new trial awarded, on such new trial the accused shall be tried, and such verdict may be found and sentence pronounced as if a former verdict had not been found,” is not unconstitutional. Stuart v. Com’th, 28 Gratt. 950.</p> <p>2. Idem—Autrefois acquit.—On indictment for murder, at first trial accused is convicted of murder in second degree, and gets verdict set aside. At second trial, he pleads that he has been before acquitted of murder in first degree by virtue of his conviction of murder in second degree ; and moves that the jury be instructed to exclude a finding of murder in first degree. It is not error to reject the plea, nor to deny the instruction.</p> <p>3. Idem—Evidence—Bes gestee.'—On trial of indictment for murder, it is admissible to prove that when the deceased was killed, two persons ran rapidly away in the same direction, and that one said in a jerky voice to the other as they both ran past a by-stander : “Will, you have killed him.”</p> <p>4. Idem—Evidence.—Evidence, not to render witness incompeient for infamy, nor to impeach his veracity, but to prove that he was “given to rows and to putting them off on others,” is inadmissible.</p> <p>5. Idem—Instructions—Character.—It is not error to refuse to instruct the jury that “if accused be proved of good character as a man of peace, the law says that such good character may be sufficient to create a reasonable doubt of his guilt, although no such doubt would have existed but for such good character ” ; and in lieu thereof, to instruct them that “the character of the accused, good or bad, when proved, may always be received and weighed by them in favor of or against him, as the case may be.”</p> <p>6. Idem—Illegal arrest—Homicide—Case at bar..—Under circumstances giving a constable, without warrant, or badge, no authority to make c' the arrest, but giving accused right to resist the arrest, deceased told accused he would arrest him, and against his protest, did arrest him. But accused jerked loose, and then retreating a short distance, turned and fired at the back of deceased, who was unarmed, and ran. The verdict was murder in second degree. On error—</p> <p>Held:</p> <p>The grade of the offence, whether murder or manslaughter only, depending on whether the homicide was committed through actual malice, or through sudden passion, which could be ascertained only from the circumstances, and the jury, with all those circumstances before them, having found that the offence was murder, their finding should not be disturbed, as • it was neither against, nor without evidence.</p>

<p>Error to judgment of circuit court of city of Lynchburg, rendered 14th May, 1885, upon proceedings by writ of habeas corpus sued out by Daniel A. Black against W. W. Coffee and Sarah E. Coffee, his wife, whereby it was decided that “ Mary E. Black is illegally detained in the custody of the said defendants,” and it was ordered that “ they do deliver up to the plaintiff his infant child, the said Mary E. Black.” From this judgment Coffee and wife obtained a writ of error and supersedeas from one of the judges of this court.</p>

<p>Appeal from two decrees of the circuit court of New Kent county, rendered 27th May, 1882, and 31st May, 1884, respectively, in a cause therein depending wherein Thomas Houghton is complainant and James B. Graybill and S. E. Landis, trustee, are defendants.</p>

O. Haden’s executor against E. O. Haden’s legatees, and the cross-cause of J. M. Hood and wife against E. O. Haden’s executor and others. The decree of the circuit court being adverse to Mrs. Hood and husband, they appealed to this court.

Shipman against William Fletcher. The object of the suit was to annul an award for misconduct of arbitrators, going beyond the submission, and committing gross errors to the detriment of the complainant. The decree being adverse, he appealed to this court.

<p>Error to judgment of circuit' court of city of Richmond, rendered November 21,1884; in an action of assumpsit wherein Powers, Blair & Co. are plaintiffs, and J. W. Crawford & Co. are defendants. Verdict and judgment were for $1,088.73, and interest, in favor of plaintiffs. Defendants being denied a new trial, had the evidence certified, and obtained a writ of error and supersedeas from one of the judges of this court.</p>

Smith is defendant. This case is sequel to the case of Smith v. Snyder, 77 Va. 432, to the syllabus and statement whereof reference is made for the facts.

Carter, Jr., complainant, against Mrs. E. O. Carter, B. G. Carter, and H. Heaton, trustee, and B. G. Carter, Jr., and E. O. Carter, Jr., infants, defendants.

<p>Error to judgment of circuit court of Henrico county, rendered 26th February, 1886, affirming judgment of county court of said county rendered 8th February, 1886, in a proceeding under act of January 14, 1882, by George Cornwall against the Commonwealth, to verify coupons tendered by him to pay his State taxes for 1883. The judgment was that Cornwall take nothing by his petition, but for his false clamor be in mercy, and that the defendant go thereof without day. At. the trial, Commonwealth’s attorney required the State bonds to be produced from which the coupons had been cut, under act of January 26, 1886. Plaintiff objected on the ground that said act was repugnant to Constitution of the United States, Article I, section 10. The court overruled the objection, and the bonds not being produced, excluded the coupons as evidence. Plaintiff excepted. Plaintiff offered expert-evidence to prove the genuineness of the coupons. The court excluded the evidence under the act of January 21, 1886, though plaintiff insisted that said act was also repugnant to said section of the said Constitution. Plaintiff excepted, and obtained from one of the judges of this court a writ of error and supersedeas.</p>

W. Newton and by Nathaniel Burruss, respectively, to verify coupons tendered by them severally to pay their taxes for 1885. At the trial Newton offered expert evidence to prove the genuineness of the coupons. The court excluded the evidence under act of January 21, 1886. The plaintiff excepted, insisting that the act was repugnant to U. S. Constitution. Art. I} sec. 10. Verdict and judgment for the Commonwealth.

C. Gibson and wife against W. W. Burgess. This decree was in confirmation of a sale made in pursuance of a decree entered in the cause on 9th April, 1880, by the circuit court of Fauquier county, wherein the cause was then pending, to sell in this State a tract of land situated in the State of West Virginia, and conveyed, with other land situated in this State, by said Gibson in trust to secure the purchase money of a tract of 1,215 acres in Orange county.

<p>Criminal Proceedings—Bape—Case at bar.—The evidence here does not warrant the verdict of the jury finding the accused guilty of rape.</p>

T. Smith was plaintiff and Thomas G. Tate was defendant. The object of the action was to recover damages instead of commissions agreed on in event plaintiff made sale of defendant’s land, the completion of the sale being alleged to have been prevented by defendant’s failure to have the land surveyed and refusal to extend the agency.

L. Timberlake and J. A. Thompson were complainants, and Joseph M. Adams, S. G. Thompson, J. S. Hite, and John W-. Bell, were defendants. The object of this suit was to enforce a judgment in favor of J. A. Thompson against S. G. Thompson for $411.22, at date of appeal, and one in favor of Timberlake for a less sum, on land conveyed since the dates of the judgments, by S. G. Thompson to Joseph M. Adams, by a deed alleged to have been fraudulent.

<p>Appeal from decrees of circuit court of Loudoun county, rendered October 25, 1882, and May, 1, 1883, respectively, in cause wherein Edgar Jackson, administrator of John Elgin, deceased, is plaintiff, and James M. Hall is defendant. The decree of the circuit court was adverse to plaintiff, and he obtained an appeal to this court.</p>

<p>1. Equity Jurisdiction—Partition—Title.—Code 1873, ch. 120, see. 1 authorizes the court in making partition of land to take cognizance of all questions of law affecting the legal title that may arise in any proceeding.</p> <p>2. Res Judicata.—This doctrine applies to all matters existing at the time of giving the judgment or decree, which the party had opportunity to bring before the court. Adams v. S. V. R. R. Co., 76 Va. 913.</p> <p>3. Deeds—Construction—Case at bar.—In construing a written instrument, the agreement of the parties must be derived from a consideration of it as a whole. So considered, it is manifest that under the Brooks’ deed, the grantee, Bradley, took only an estate for the life of Charles Zehmer.</p>

M. Ferguson, deceased, is plaintiff, and Henry S. Trout, administrator of I. M. Ferguson, and the heirs of the latter, are defendants. The facts are these: On the 17th day of August, 1870, the said George Teel purchased of the said Isham M. Ferguson a tract of land in said county of Franklin, on the north fork of Blackwater river, containing 110 acres, at the price of $-.

Marbury and M. D. Ball were plaintiffs, and Joseph Thornton was defendant. On 17th August, 1869, Thornton and wife, and William H. Dulaney, commissioner, conveyed a tract of land to W. H. Davis with special warranty. On same day Davis conveyed the land to W. H. Dulaney, in trust to secure $150,000 of negotiable notes which were due and unpaid. At the time these deeds were executed, one J. D. Thorpe had on the land an incumbrance for $29,620.51.

<p>Appeal from decree of corporation court of Danville, rendered April 21, 1885, in a chancery, suit, wherein Susan L. Gamewell, by P. H. Boisseau, her next friend, was plaintiff, and W. G. Paxton, her late guardian, and others, were defendants.</p>

are plaintiffs, and James C. Smith, doing business in the name of the “ Old Dominion Paper Mills,” is defendant. Verdict and judgment for plaintiffs. Defendant having excepted to several rulings of the court, the evidence was certified, and he obtained a writ of error and supersedeas.

<p>Error to judgment of corporation court of city of Lynch-burg, rendered October 19, 1886, in a proceeding wherein the Commonwealth of Virginia was defendant, and W. L. Weller & Sons were plaintiffs. That proceeding was under the act of January 14, 1882, to verify coupons tendered by them to pay their State taxes for 1885. At the trial, plaintiffs were called on to produce the State bonds from which the coupons were claimed to have been cut, under act of January 26, 1886. Plaintiffs objected on the ground that the act was repugnant to Constitution U. S., Article I, section 10. The court sustained the objection. Plaintiffs then offered expert-evidence to prove the genuineness of the coupons. The attorney for the Commonwealth objected. The court overruled the objection and admitted the evidence. Verdict and judgment for the plaintiffs. The rulings of the court having been excepted to and the facts certified, a writ of error and supersedeas was awarded to the said judgment.</p>

Cochran, in his own right and as administrator of Benjamin Crawford, deceased, complainant, against H. B. Harnsberger, administrator of Stephen M. Harnsberger, deceased, and others.

<p>1. Judgments—Void for want of jurisdiction.—No presumption exists in favor of the validity of judgments even of courts of general juris? diction, where want of jurisdiction affirmatively appears on the face of the proceedings. Want of jurisdiction makes such judgments null; and they may be so treated by any court in any proceeding, direct or collateral. Wade v. Hancock, 76 Va. 620.</p> <p>2. Construction of Statutes—Service of process beyond the State— Persons—Natural—Artificial.—Code 1873, eh. 166, sec. 15, applies only to non-resident defendants who are natural persons, and not to corporations nor their agents. Service of process upon corporations must be in this State upon an officer or agent resident here. Code 1873, ch. 166, sec. 7.</p> <p>3. Case at bar.—Suit is brought in a county in this State against a corporation domiciled in that county, and process is served upon the president of the corporation resident in Philadelphia, by a third party, who makes affidavit, as required by Code 1873, ch. 166, sec. 15—</p> <p>Held :</p> <p>Such service is insufficient to give the court jurisdiction.</p>

<p>1. Lunatics— Committee—Settlement—Credits.—In suit by lunatic’s administrator against committee to settle his accounts, &c., it appeared that after lunatic’s death and before administrator qualified, committee had paid whole share of one distributee and part of share of the other—</p> <p>Held :</p> <p>The distributees should be made parties, and committee have credit for all he paid them, and for them.</p> <p>2. Idem—Support—Principal.-—In such suit, committee should have credit for so much of principal necessarily expended for lunatic’s support.</p> <p>3. Idem—Commissions.—In such suit, committee, having expended entire interest in lunatic’s support, is entitled to commissions, to be paid out of principal, though he had not settled his accounts.</p>

<p>1. Principal and Surety—Joint bond.—All obligors in a joint bond are presumed to be principals, except such as have the word “ security ” opposite their names.</p> <p>2. Idem—JRemedy of surety.—Where stranger pays principal’s debt, and surety reimburses him, surety becomes entitled to recover the amount from principal.</p> <p>3. Evidence— Competency.—In suit by a surety’s administrator against his principals and a co-surety for reimbursement, the co-surety is an incompetent witness, and a letter from him and certain extracts from private books, are hearsay and inadmissible.</p> <p>4. Chancery Practice—Suit for reimbursement—Case at bar.—Land of surety having been sold in his lifetime sufficient to pay judgment against his principals and himself. Part of proceeds was paid to subsequent lienors. The deficiency was supplied by a sale of his land made after his death, proceeds whereof belonged to those lienors—</p> <p>Held :</p> <p>Administrator of surety is entitled to sue his principals for reimbursement, under the facts of this case.</p> <p>5. Idem—Commissioners—Vouchers.—Unless requested by a party in interest, a commissioner in chancery is not obliged to return with his report the evidence upon which it is based.</p> <p>6. Statute op Limitations—Surety’s reimbursement.—Surety’s claim on principal arises on actual payment of the joint obligation.</p>

<p>1. Partition—Title.—In suits for partition the court has jurisdiction to settle all questions of title arising in the case. Code 1873, chap. 120, sec. 1.</p> <p>2. Idem—Parceners—Bents and profits.—One parcener receiving more of the rents and profits than his share, is liable to his co-parceners in an action of account. Code 1873, chap. 142, sec 14.</p> <p>3. Idem—Statute of limitations.—This statute does not begin to run in favor of one joint-tenant against his co-tenant until actual ouster or disseisin, or some act equivalent to denial of their rights in the premises. Greenhill v. Biggs (Ky.), 28 S. W. Rep. 774.</p>

<p>Appeal from decree of circuit court of Fauquier county, pronounced September 14,1883, in a cause under style of Fox’s Adm’r against Freeman’s Ex’or and others, wherein Robert Whitaker, sheriff administrator, d. b. n. w. w. a. of John Fox, deceased, is plaintiff, and James Smith and Charles A. Smith and Margaret A. Smith, his wife, are defendants.</p> <p>The circuit court decreed that Margaret A. Smith, under the will of James Freeman, had the entire estate in the fifty-two acres devised to the separate use of her and her children, and the jus disponendi thereof, and that the trust deed to Thomas Smith was a legal exercise of that right and that James Smith, her only surviving child, had no interest under the will. From this decree Margaret A. Smith and James Smith appealed.</p>

<p>Appeal from decree of circuit court of Lunenburg county,, pronounced May 13th, 1884, in a chancery suit wherein the-appellants, L. O. Abernathy, W. H. Powers, and J. A. Harris,, the latter suing for the benefit and at the costs of his co-complainants, were plaintiffs, and John B. Phillips, Wm. H. Phillips, and Sallie E. Phillips, the appellees, were defendants.</p>

Dowdy and Mary F., his wife, to establish the lost record of the will of Jacob Duncan, deceased, in accordance with Code 1873, chapter 172, sections 13 and 14. The circuit court confirmed the report of the special commissioner establishing the lost record of the will just as the same was set forth in the petition.

<p>Appeal from decree of circuit court of Fauquier, and of Fair-fax counties, respectively, rendered December, 1883, and June, 1884, respectively, in the chancery cause in which Jonathan Magarity was plaintiff, and John J. Shipman, and others, were defendants. The decree was that Magarity pay to Mrs. Priscilla J. Shipman, one of the defendants, the sum of $78.06, with interest from 22d January, 1884, and that the parties, respectively, do each pay his or her own costs. From this decree an appeal and supersedeas was allowed Magarity.</p>

<p>1. Virginia Coupons—License taxes—Tender of coupons—Business without license.—Act of March 4,1886, prescribing how licenses may be obtained, and that if coupons be tendered therefor, the officer shall receive same for verification under act of January 14, 1882, and that unless said taxes be paid in money no lieense shall issue, nor applicant do business, until the coupons be so verified, is not repugnant to U. S. Constitution, Art. 1, sec. 10.</p> <p>2. Case at Bar distinguished from Royall v. Virginia, 116 U. S. 572.</p>

<p>Appeal from decree of circuit court of Fauquier county, rendered December 21st, 1883, in the cause of Kelley’s executor against Taliaferro and others. The decree being adverse to the complainant, he obtained an appeal and supersedeas.</p>

<p>Appellate Court—Case at bar.—In the case here there is no bill of exceptions and no motion for a new trial. But the case having been referred to a referee, the proofs were taken in the form of depositions, and a report was made by him, and no exception taken thereto by either party. ■ Such a case cannot be reviewed by this court, and will be dismissed. Karn v. Hickson, 80 Va. 589.</p>

<p>Error to judgment of circuit court of city of Richmond, rendered February 18, 1885, in an action of unlawful entry and detainer, wherein Miss Fore was plaintiff and T. P. Campbell was defendant. Verdict and . judgment were for the defendant. To certain rulings of the court at the trial, the plaintiff excepted, and the evidence was certified. A writ of error was awarded her.</p>

<p>Appeal from decree of circuit court of Essex county, pronounced September 16th, 1882, in a chancery cause wherein Thomas Croxton, executor of Mace Clements, deceased, who sued for himself and other creditors of John W. Fisher, deceased, is plaintiff, and E. T. Smith, administrator, and T. E. Fisher, W. Fisher, W. G. Jeffries and E. S., his wife, heirs of said John W. Fisher, and of Martha T. Fisher, his wife, and also deceased, are defendants. The decree was adverse to said heirs, who appealed to this court.</p>

<p>1. Witnesses—Husband and wife—Suit for separate estate.—In suit by wife for her separate estate, husband joined for conformity and not bound for costs. Wife is competent to testify in her own behalf, but he is not for her. Hayes v. M. I. Co., 76 Va. 225.</p> <p>2. Estoppel—Parol contracts.—Where parol dispensation with performance of agreement under seal is supported by a consideration, it will be enforced in equity. U. S. v. Howell, 4 W. C. C. R. 620.</p> <p>3. Idem—■Acquiescence.—Silent acquiescence, misleading a party to his disadvantage, works an equitable estoppel.</p> <p>4. Idem—Case at bar.—N. gave his bonds to A. for land. They contained a clause that they were not transferable until the land was free of encumbrances except the dower of A.’s wife. She declined to execute conveyance unless one bond was given her in lieu of her dower. This being agreed to, she asked if the clause against transfer would keep her out of the money. She was told in N.’s presence, and with his acquiescence, that it would not, and that the other bonds were ample to pay all liens and leave her the bond. Thus assured, she executed the conveyance, and the bond was assigned her. Afterwards, N. refused to pay her the bond, saying he had used all the purchase money to pay the encumbrances, and that the bond was not transferable.</p> <p>Held :</p> <p>N. is estopped from making such defence.</p>

<p>1. Witnesses.—Officer before whom grantor acknowledged deed is not agent of grantee, nor party to transaction, so as, the grantee being dead, to allow grantor to testify. Acts 1876—’7, p. 265.</p> <p>2. Idem—Depositions.—As a general rule, depositions cannot be retaken without leave of court. Carter v. Edmonds, 80 Va. 58.</p> <p>3. New Trial—After-discovered evidence.—To entitle one to new trial after-discovered evidence must be material, not merely cumulative and not such as ordinary diligence might have previously discovered. Whitehurst’s Case, 79 Va. 556.</p>

<p>1. Witnesses—Objection waived—Competent when examined.—Witness incompetent when he deposed, but cross-examined without objection, his deposition cannot beafterwards objected to. If competent when he deposed, his deposition cannot become inadmissible by later events.</p> <p>2. Chanceby Pbactice— Cross-bill.—Depositions in original suit may be read under cross-bill when so directed.</p> <p>3. Idem—Master’s report.-—When depositions are taken under decree for account, the usual certificate is unnecessary.</p> <p>4. Real Estate—Sale—Time.—It will not be presumed that time was intended to be of the essence, from mere fixing day for delivering deed or paying price.</p> <p>5. Tbusts—Implied.—When property is bought by one for another, and is conveyed to former, and is partly paid for by latter, an implied trust arises in favor of the payer to the extent of his payment.</p> <p>6. Pubchasebs—Notice—Case at bar.—One buying from holder of legal title, with constructive notice of trust on the land in favor of one who has partly paid the purchase money, must take subject to that trust. Such is the ease here.</p> <p>7. Chanceby Pbactice—Relief of beneficiary.—In case of purchase with notice of trust, the court may properly decree that unless within a given time, purchaser pays the amount of said trust, the deed of trust given by purchaser for the purchase money, shall be enftxced, without decreeing first against the vendor, or against latter in favor of purchaser.</p> <p>8. Chancery Practice—Pleadings—Presumption.—Where pleadings - in the record are unexplained as to ho.w and when they get there, but are mentioned as filed in other pleadings, and the parties were represented by counsel taking depositions, they must be treated as properly in the case.</p> <p>9. Idem—Demurrer—Presumption.—Where record does not show that a demurrer has been overruled, that must be presumed, if the court has decided on merits for plaintiff.</p> <p>10. Bankruptcy—Assignee—Bankrupt’s property. — Assignee may assert his right to proceeds of his bankrupt’s trust property sold by trustee, in a suit wherein the ownership of said proceeds is litigated.</p> <p>11. Idem—¡Statute of limitations.—The assignee’s claim is barred by lapse of two years from maturity of his claim, and not from date of assignment.</p>

<p>1. Advancement—Depositions.—An advancement is the gift, by anticipation, of the whole or part of what it is supposed a child will be entitled to on the death of the giver intestate.</p> <p>2. Idem—Loan—Will—Case at bar.—What in its inception was a loan, may be made subsequently by will or otherwise, an advancement, and the ease here is an instance thereof.</p>

<p>1. Insanity—Legal presumption—Burden of proof.—The legal presumption is that all men are sane. The burden of proof is on the alleger of insanity.</p> <p>2. Legal Capacity—Definition—Volition.—Legal competency to act is the possession of mental capacity sufficient to transact one’s business with intelligence, and understanding of what he is doing. Mere weakness of understanding is no objection to a man’s disposing of his own property; The test of legal capacity .is said to be that the party is capable of recollecting the property he is about to dispose of, the manner of distributing it, and the objects of his bounty; the particular act being attended with the consent of his will and understanding.</p> <p>3. Idem— raud—Undue influence—Case at bar.—Here the evidence shows that B., a person whose two contracts it was the object of the suit to annul, on the ground of mental incapacity and undue influence, was illiterate and of weak intellect, delicate physical condition, and indolent habits ; but it utterly fails to show that he was of unsound mind and incapable of managing his own affairs ; or that there was any unfair dealing or other thing for which those contracts should be invalidated.</p>

Ball, trustee, &c., against James B. McCarty,” wherein A. F. Yerby, administrator of A. O. Yerby, deceased, on April 18th, 1880, filed his petition to be made a party as a judgment creditor of W. W. Douglass, no execution having been issued on the said judgment, which was rendered March 4th, 1867. Yet the circuit court decided that the judgment was a lien and enforceable on certain real estate as the property of Douglass.

Baker was complainant, and John Naglee and The Moromsco Land Improvement, Manufacturing and Business Company, O. C. Green and Wm. O. Eichardson, trustees, were defendants. The object of the suit was to annul a conveyance by Naglee of certain land to said company, and a conveyance of same by said company to said trustees, to secure certain bonds of said company; and plaintiff was awarded an injunction to restrain the issue and sale of said bonds.

<p>Error to a judgment of the hustings court of the city of Richmond, rendered July 21st, 1884, upon an indictment against R. L. Maury for unlawfully selling coupons cut from bonds of the State of Virginia, without having first obtained the license required by law.</p> <p>The defendant moved the court to quash the indictment upon the ground that the statute on which the indictment was founded is repugnant to both the Constitution of the United States and the Constitution of Virginia. The hustings court sustained this motion, and the' Commonwealth excepted and obtained a writ of error and supersedeas from one of the judges of this court.</p> <p>The statute in question reads as follows: “No person shall ' sell tax-receivable coupons [cut] from bonds of the State of Virginia without a special license, for which privilege he shall pay one thousand dollars for each office or place of business kept for that purpose. In addition thereto, he shall pay to the State a tax of twenty per centum upon the face value of all the tax-receivable coupons sold by him. At the time of making such sales he shall give to the purchaser a printed certificate signed by him, stating the fact that he has sold such coupons to the purchaser, naming him. The certificate shall also contain the number and amount of the said coupons, and the date of the sale. Whenever- such coupons are tendered for taxes, the broker’s receipt shall be delivered to the collector. The said collector shall preserve the same until the first day of the following month, when he shall collect the said tax of twenty per centum from the said broker. But any stock-broker may purchase such coupons for the purpose of funding them in the new three per cent, bonds of Virginia.” See sec. 65, ch. 450, Acts 1883-4, p. 490.</p>

<p>Jurisdiction—Partition of land in another State.—Courts in Virginia have no jurisdiction to partition lands situated in another State, because such right can only be exercised under the lex loci rei sitae. Poindexter v. Burwell, ante p. 507.</p>

Donald’s Creditors et als. This suit was brought by R. P. Bell, administrator of W. A. Donald, to have the court construe and determine the effect of a contract made 4th April, 1881, by McCoy & Saunders with W. A. Donald, which recited that the two former were the owners of certain chattel property, and that they sold it, by an unrecorded instrument, to him at an agreed price, but retained the title until that price should be paid.

' Appeal from a decree of the chancery court of the city of Richmond, rendered July 9th, 1883, in the suit therein pending wherein Thomas S. Bocock, executor of N. F. Bocock, deceased, O. R. Bocock and Peter A. Forbes, who sue for the benefit of D. A. Parrack, were complainants, and the Alleghany Coal and Iron Company, H. C. Parsons, G. McNeill, Murrillo Spaulding and F. B. Deane were defendants.

<p>Error to judgment of corporation court of city of Norfolk, rendered August 3d, 1885, in an action wherein W. W. Gwathmey & Co., for use of Battle, Bunn & Co., and Everett Bros., Gibson & Co., are plaintiffs, and The Home Insurance Company is defendant. This was an action on a fire insurance policy for contribution as on a double insurance. The verdict and judgment were that defendant pay plaintiffs the sum of $2,110.73, with interest from March 17th, 1885, and their costs. At the trial defendant excepted to several rulings of the court, and to the judgment obtained a writ of error and supersedeas.</p>

<p>1. Negligent Injuries'—Contributory negligence-—Inability.—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 where 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 consequence of such negligence. Rudd's Adm'r v. R. & D. R. R. Co., 80 Va. 546.</p> <p>2. Idem—Case at bar.—Defendant’s track-walker at night found B. lying on railroad track asleep, and aroused and warned him of approaching train. B., raising himself on his elbow and signifying his comprehension of the situation, and not appearing to be disabled by intoxication or otherwise, track-walker left him and proceeded on his beat. But B. did not leave the track, and the train passed over and killed him, without proof of negligence on the part of those controlling it—</p> <p>Held:</p> <p>Defendant was not liable.</p>

Wortham, a suit for partition, and Martin’s Ex’or v. Shackelford, a creditor’s suit. The decree was adverse to H. E. Smith and his vendee, T. D. Swisher, and Smith obtained an appeal and supersedeas.

Butler, an infant under fourteen years of age, who sued by William E. Lefew, his next friend, was complainant, and Geo. J. Hooper, trustee’ John M. Butler, Jr., Walter E. Bastine, and Olive Lee Bastine, were defendants. Decree was adverse to complainant, and an appeal was awarded him by one of the judges of this court.

The object of this action was to recover the sum of $1,500, the amount of a policy on the life of one Joseph Baker for the plaintiff’s benefit. The verdict of the jury gave the plaintiff the sum demanded, and the court overruled the defendant’s motion for a new trial, and entered judgment on the verdict; and the defendant obtained a writ of error and supersedeas to this court. The facts are set forth in the opinion of the court.

<p>Error to judgment of corporation court of city of Lynch-burg, rendered 22d May, 1886, in a suit wherein W. D. Booker and P. R. Ligón, partners as W. D. Booker & Go., were plaintiffs, and the Commonwealth of Virginia was defendant. At the trial on the issue joined, as to the genuineness of the coupons offered in payment of taxes, the attorney for the Commonwealth moved that the original bond from which said coupons were cut be produced as the only evidence of their genuineness. The court denied the motion, and held the act of assembly, approved 26th January, 1886 (see Acts 1885-86, ch. 49), entitled “An act to prescribe a rule of evidence in certain cases ” ■ as void. The Commonwealth excepted. The plaintiff then introduced an expert to prove the genuineness, and objection being made under act approved 21st January; 1886 (see Acts 1885-86, ch. 45), entitled “An act to amend and re-enact section 39 of ch. 167, Code 1873, in relation to rules of pleading in evidence.” This objection was overruled, the court holding that the last act was also unconstitutional and void. And the jury having rendered their verdict against the Commonwealth, the court entered up judgment accordingly; to which judgment she obtained a writ of error and supersedeas.</p>

Johnson and Elizabeth W. Johnson, his wife, and others, were defendants. The circuit court dismissed the bill and the complainant therein appealed.