Volume 83 — Virginia Reports

J. Kirk, J. L. Shoemaker, and Etros Kirk were plaintiffs, and C. D. Cake was defendant. The latter purchased of former the timber standing on a certain boundary of laud for $3,000. Purchaser was to pay $1.00 per log as the lumber was removed until the whole price was paid. He had removed 5,000 or 6,000 logs and was removing another raft of logs without having paid a dollar per log as agreed. The plaintiffs obtained an injunction to stop the removal.

respectively, in a suit wherein Mary Koberta Fleming, an infant, who sues by George W. Fleming, her father and next friend, and said George W. Fleming, in his own right, are plaintiffs, and John Kelly and Elizabeth A., his wife, Nancy Morrissey, and James M. Casey as executor of James Morrissey, deceased, are defendants. The decrees were adverse to the plaintiffs and they appealed to this court.

Pettit, trustee for Lucy A. Pettit, against Eliza Cowherd, upon error to two judgments which had been previously rendered in said action by the county court of said county, and reversing the said last named judgments which, were in favor of the plaintiff therein. From the said judgments of the circuit court, on points contained in the record, Pettit obtained a writ of error and supersedeas. Opinion fully states the case.

<p>Error to judgment of circuit court of Culpeper county overruling the demurrer of the plaintiff to the defendant’s special plea in the action at law, wherein Joseph Reid, who sued for the benefit of Ober & Son, was plaintiff, and H. S. Field was defendant. ,</p>

<p>Error to judgment of corporation court of city of Norfolk, rendered July 15, 1885, in an action of trespass on the case on a guaranty, wherein Mordecai and Henry Hofheimer, partners in business; as Hofheimer, Son & Co., are plaintiffs, and E. Tischler is defendant. The verdict was for §1,074.65, with interest from April 1, 1883, till paid. The defendant moved to set aside the verdict. The court refused, and entered judgment accordingly. The evidence being certified, defendant obtained a writ of error and supersedeas. Opinion states the case.</p>

<p>Appeal from decree of circuit court of Orange county, rendered at its July term, 1886, iu the chancery suit wherein B. R. Whitelaw was plaintiff, and H. A. Sims, executor of Mary Whitelaw, deceased, H. A. Sims and Pamelia W., his wife, and H. A. Wiseman and Willie A., his wife, and others were defendants. In this suit there was an issue of demsamt vel non. The verdict of the jury was against the will and the court decreed accordingly. The defendants appealed. Opinion states the case.</p>

Sadler & Wright and others. The defendants demurred to the bill, and the court overruling the same the defendants appealed. Opinion states the case.

Puryear, wliom a jury liad found guilty on an indictment for the murder, in the first degree, of his wife, Emma L. Puryear, to be hanged by the neck until dead. From this Judgment, upon exceptions to various rulings of the trial court, prisoner obtained from one of the judges of this court a writ of error and supersedeas. Opinion states the case.

Johnston, administrator of Philip T. Johnson, deceased, and others. .The decree being unfavorable to the said defendants, they appealed. Opinion states-the case.

Lyman Broughton and John C. Davis. The decree iyas adverse to the defendants, and Davis procured from one of the judges of this court an appeal and supersedeas. Opinion states the case.

<p>Appeal from decree of circuit court of King William county, rendered June 6th, 1882, in chancery cause of Eppes and wife and als. against John W. Bradley’s administrators and others. The decree was adverse to the plaintiffs, and they appealed. Opinion states the case.</p>

<p>Appeal from two decrees of circuit court of Essex county, one rendered September 17th, 1881, in the cause of James W. Smith, administrator of W. L. Ellis, deceased, assignee of Burkett G. Rennolds, plaintiff, and W. J. Up-Shaw, in Ms own right, and as administrator c. t. a. of Wm. T. Upshaw, deceased, H. W. Daingerfield, in his own right, and as committee of Louisa B. Upshaw, lunatic, L. B. Daingerfield, E. N. Daingerfield and G. W. Daingerfield, the last three infants under 21 years of age, defendants; and the other rendered March 19th, 1885, on a bill of review filed by her in said cause, to review and reverse the first decree. The first decree was to rent out the decedent’s land to pay a judgment obtained by default against Wm. J. Upshaw, administrator c. t. a. of Wm. T. .Upshaw, to-which the heirs and devisees were not parties. The second decree dismissed the bill of review. From these decrees Eleanor ST. Daingerfield and Louisa B. Daingerfield appealed to this court. Opinion states the case.</p>

, 1886, in an action of debt, wherein the Commonwealth of Virginia was the plaintiff, and S. Brown Allen, John E. Hamilton, H. A. S. Hamilton, Robert-S. Hamilton, John H. English, E. A. Fulcher, and Bobert S. Harnsberger were defendants. Verdict was for plaintiff for $4,494.90, with interest, subject to demurrer to the evidence; which demurrer the court overruled and entered judgment according to the verdict.

Nichols, administrator of Francis E.' Nichols, was plaintiff, and the Washington, Ohio and Western Railroad Company was defendant. The verdict at the first trial was for the plaintiff, assessing his damages at $4,000. On defendant’s motion, the court set aside the verdict and awarded a new trial. At the second trial the jury found for the defendant, and the plaintiff moved for a new trial. But the court overruled the motion, and entered judgment for the defendant.

<p>1. Libel—Anti-duelling act—Construction.—This act (Code 1873, ch. 145, § 2,) applies to words written as well as to words spoken.</p> <p>2. Idem— Common law—Statute—Joinder—Malice. —A publication containing insulting words may be declared on under the statute, though it be libellous at common law. Declaration, showing by proper averments that the words are within the statute, is sufficient. The two causes of' action cannot be united in one count. In either case, malice must be alleged. Mere publication is prima facie evidence of malice, but the occasion may rebut the presumption.</p> <p>3. Idem—Defamatory publication—Justification.—To justify publication of defamatory matter, the occasion must be privileged, and must be used bona fide, without malice. Whether the occasion be privileged, is a question of law for the court. Whether it has been used bona fide, is a question of fact for the jury.</p> <p>4. Idem—Privileged communications.—One insult cannot be set off against another (Bourland v. Eidson, 8 Gratt. 27); yet if a man is attacked by another in a newspaper, he may reply. If his reply is not unnecessarily defamatory of his assailant, and is honestly made in self-defense, it will be privileged.</p> <p>5. Idem—Instructions.—At trial of action for defamation, it is error to give instructions withdrawing from the jury the question whether the publication declared on falls within the protection extended to privileged communications, and telling them to consider the evidence tending to show that defendant made the publication without malice and bona fide in self-defense and protection of his own interest, only in mitigation of damages. On the contrary, if the jury, from the evidence, believed that, though the language used was untrue, yet the defendant believed it true, and used it honestly, without malice, in self-defense and reasonable protection of his own interest, it would have been their duty to-find for the defendant; and they should have been instructed to that effect.</p> <p>6. Idem—Case at bar.—Here the occasion of the publication declared on was privileged, and the jury should have been instructed to find whether it was used in good faith by the defendant.</p>

Hoge was complainant and William H. Robertson was defendant. The court refused to quash the attachment on the defendant’s motion, and he appealed to this •court. Opinion states the case.

<p>Appeal from decree of circuit court of Goocliland county Tendered April 6th, 1885, in the suit of Hoffman, guardian’ &c., against Allan, &c. The decree was adverse to the defendants, Hoffman Allan and Louisa G. Allan, and they obtained an appeal to this court. Opinion states the case.</p>

, were plaintiffs, and J. Arthur Lefroy, administrator, and others, heirs of Lady Laura Trevelyan, deceased, were defendants. The decree, besides overruling several motions of the administrator, required, him to pay the sum of $1,399.95, with interest, as the balance due from him to the estate upon final settlement of.' his accounts; and he obtained an appeal and supersedeas;. Opinion states the case.

<p>1. Corporations-Charter-Notice.-Persons dealing with a corporation must be presumed to have acted with reference to the provisions of its charter, with notice whereof they are affected. Haden v. F. and M. B. Fire Association, SO Va. 6S3.</p> <p>2. Idem-Mutual Benefit Society-Policy-Construction-Case at b.ar.Charter of this society provides that on death of member “ the fund to which his family is entitled shall be paid as designated in application for membership, and this being changed by death, or otherwise impossible, it shall go &emdash;first, to the widow and infant children,” and then to others in order named. W., in his application, directed that the fund should be paid as specified in his will. He died without a will, leaving a widow, but no infant child. In controversy between his administrator and widow-</p> <p>Held :</p> <p>.The widow is entitled to the fund.</p>

H. Marbury, M. Dulaney Ball, and Thomas Thornton, defendants. On demurrer the circuit court dismissed the bill; and the complainants appealed. Opinion states the case.

<p>Construction of Statutes&emdash;Contracts&emdash; Water rates.&emdash;The property and franchises of the James River and Kanawha Canal Co. were purchased under an act approved February 27th, 1879, by the R. & A. Railroad Co. This act directs that all then existing leases of water privileges along the line of the canal, ‘ ‘ shall be respected and maintained at rates not exceeding the present rates.” The lessees contended that this act perpetuates, at their option, all leases of water privileges existing at its passage&emdash;</p> <p>Held :</p> <p>This act does not forbid the company to increase the water rates, except only where to do so would violate “ existing contracts.”</p>

WilBon, treasurer, and B. Y. Adams, deputy treasurer of said county, were defendants. The object of the injunction was to restrain the treasurer from selling property of the plaintiff levied on for taxes assessed by the'said board for county and school purposes for the year 1881. The circuit court dissolved the injunction with costs to the defendants. The plaintiff obtained an appeal and supersedeas. Opinion states the case.

' Appeal from decree of circuit court of Gloucester county, pronounced in vacation, August 18tii, 1885, in the cause of John B. Waller, in his own right, and as administrator of Agnes T. Waller, deceased, plaintiff, against John W. C. Catlett’s executors and others. The decree being unfavora - ble to plaintiff, he appealed to this court. Opinion states the case.

The decree perpetuated the injunction restraining the defendant from using the “ Morris farm ” for the purpose for which it had been purchased, to-wit: for a small-pox hospital, and the defendant obtained an appeal to this court. ■Opinion states the case.

<p>1. Appellate Court&emdash;Decrees&emdash;Partial reversal.&emdash;It is familiar doctrine that where a decree is reversed in part, and affirmed as to the residue, such reversal does not destroy the lien of so much of the decree as is affirmed. Moss v. Moorman, 24 Gratt. 97. But it applies not to a reversal of judgment and award of new trial.</p> <p>2. Idem&emdash;Compound interest&emdash;Case at bar.&emdash;In Chapman's Adm’r v. Shepherd’s Adm’r and als, 24 Gratt, 377, this court reversed the decree of the circuit court so far only as it allowed compound interest on the amount due from Chapman’s estate, from October 7, 1851, instead of from August 4, 1853, and affirmed it in all other respects&emdash;</p> <p>Held :</p> <p>Such reversal did not affect the lien of the decree so far as it was affirmed.</p>

, and others, complainants, against W. C. Osburn and Martha, his wife, defendants. The decree being adverse to the complainants, they appealed to this court. Opinion states the case.

, Elijah G., Charles H. and David A. Blackstock and Henry Seamster and Sarah C., his wife, were plaintiffs, and John Seamster, Martha Blackstock and Williamson Canada were defendants. The defendants pleaded not guilty, and gave notice of equitable defenses under Code 1873, ch. 131, §§ 20 and 21. The jury returned a special verdict, upon which judgment was rendered for the plaintiffs. Whereupon the defendants obtained a writ of error and supersedeas. Opinion states the case.

D. Blair, suing for himself and others, plaintiffs, against W. J. Overby, sheriff-administrator of A. L. H. Muse, deceased, Mary Ann Muse, C. L. Carter, and Dorothy S. Carter, his wife, and Rufus Muse. At the hearing the bill was dismissed at the costs of the plaintiffs, who appealed to this court. Opinion states the case.

<p>Appeal from decree of circuit court of York county, entered January 23d, 1884, on a petition filed by Robert T. Armstead in the cause styled Newman and others against Whittaker and others.</p>

rendered February 16, 1885, in the chancery cause of Henry Lewis and others, plaintiffs, against The Washington, Ohio- and Western Railroad company and others, defendants. The decree being adverse to the said company,-it obtained an appeal. Opinion states the case.

<p>Appeal from decree of circuit court of Culpeper county rendered at its June term, 1885, in tlie cause of Varinda J. G. Scott, executrix of John Scott, deceased, plaintiff, against Wm. H. Scott and others, defendants. The decree being for the defendants the executrix obtained an appeal. Opinion states the case.</p>

<p>Appeal from decree of circuit court of Danville, rendered February 9tb, 1885, in a suit wherein Robert Allen and others were complainants and W. S. Patton and others were defendants. The bill was dismissed at cost of complainants and they obtained an appeal. Opinion states the case.</p>

<p>1. Chancery Practice&emdash;Pleading&emdash;Clearness.&emdash;It is an elementary rule that the bill must state the claim of plaintiff with accuracy and clearness ; also the injury or grievance and the relief.</p> <p>2. Idem&emdash;Multifariousness.&emdash;A bill which sets forth two distinct and inconsistent causes of action, upon two different policies of insurance, one actually issued, upon which premiums were not paid, the nonpayment being excused by the alleged insolvency of the company ; the other, which ought to have been issued, because the first had been surrendered and receipted in full to the company, is bad on demurrer.</p>

The verdict and judgment were against the N. & W. R. R. Co. alone for $1,555.39 damages, and that company obtained from one of' the judges of this court a writ of error and supersedeas.

<p>1. Parent and Child—Advancements—Evidence.—A gift unexplained in the lifetime of an intestate father, to one of his children, is prima facie an advancement. His statements at the time, or subsequently, are competent evidence to show what was his intention. Watkins v. Young, 31 Gratt. 84.</p> <p>2. Idem—Son-in-law.—And so, such a gift to a son-in-law is prima facie an advancement to the daughter.</p> <p>3. Married Women-—Advancements.—The married women’s act, (Acts 1876-77, p. 333,) does not affect the question of advancements.</p>

Gover was plaintiff and S. E. Chamberlain was defendant. Judgment being for defendant, plaintiff obtained a writ of error and supersedeas. Opinion states the case.

Darracott was plaintiff and the Chesapeake and Ohio Eailroad Company was defendant. This was an action of trespass on the case in the circuit court of Hanover county. The action was brought to recover damages for injuries received bythe plaintiff whilecoupling cars of the defendant company.

S. McCue, administrator of Elizabeth D. Morris, deceased, was plaintiff, and Sussex D. Davis was defendant. At the hearing the bill was dismissed at the plaintiffs costs, and he obtained an appeal to this court. Opinion states the case.

<p>3. Chancery Practice—Bill—Answer—Cross-bill—Relief.—Where the transactions between the parties are numerous and cognate, and have not all been embraced in the bill, but are set up in the answer, the latter may be treated as a cross-bill and put them in issue, and relief in respect thereto may be granted by the court, so as to avoid multiplicity of suits. Mettert v. Hagan, 18 Gratt. 231.</p> <p>2. Idem—Commissioner's report—Answer—Admissions—Case at bar.— Where bill to enjoin sale under trust deed alleges that a certain debt was embraced in the trust deed, and the answer denies the allegation, though the answer on oath is waived, and the master’s report sustains the denial, and is supported by the plaintiff’s admissions elsewhere, the report should be confirmed.</p> <p>3. Idem—Costs—Case at bar.—Costs'lie within the discretion of the court, and are properly awarded to the party substantially prevailing.</p> <p>4. Idem—Account of liens—Sale—As a general rule, an account of liens should be decreed and taken before a sale of the land is decreed. Kendrick v. Whitney, 28 Gratt. 646.</p> <p>5. Idem—Vendor and Vendee — Conveyance—Warranty’—Case at bar.— Where vendor contracts to convey land to vendee with general warranty upon payment of the purchase money, it is error to decree conveyance with special warranty only upon such payment.</p> <p>6. Idem—Injunction—Dissolution—Receiver—Case at bar.—Code 1873, ch. 175, \ 14, applies only to a pure bill of injunction, and not to a case ' where the bill prays for other relief besides the injunction ; and pending the litigation for the subjection of the land to sale for the purchase money, it is not error to appoint a receiver to rent the land, and, if necessary, to collect the bond given by vendee for the rent, as was done in the case at bar. Pulliam v. Winston, 5 Leigh, 353.</p>

W. Booker and others, dismissing the petition filed therein by the committee of one Calloway, a lunatic. From this decree the committee appealed. Opinion states the case.

<p>Error to judgment of circuit court of city of Alexandria, rendered March 16th, 1886, in the action of trespass on the ease of Roberts against Alexandria & Fredericksburg Railroad Company. The judgment being adverse to plaintiff, a writ of error and supersedeas was awarded him. Opinion states the case.</p>

Adkins against C. M. Edwards and J. H. Edwards, and in Edwards against Adkins, which causes were then pending in this court on appeal. The decree was for the appointment of a receiver to rent out, pending said appeal, the real estate decreed to be sold to satisfy liens. Opinion states the case.

ttox Company was ■defendant. The decree being adverse to the claim of the defendant company for priority of lien for rent of the premises on said personalty, the defendant company appealed. Opinion states the case.

The prisoner was indicted in said county court for the-malicious burning of a certain corn-house, the property of one Fitzgerald, the said corn-house, with the corn and other property therein, being of the value of six hundred dollars.

Dyer against John H. Pharis, trustee, and of James S. Redd and wife against John H. Pharis, commissioner, &c., which were heard together. The decree being adverse to Redd and wife, they appealed. Opinion states the case.

Argued at Wytheville. Decided at Richmond. Appeal from decree of circuit court of Bedford county, rendered December 2d, 1884, in the cause wherein Anthony and others are complainants, and John G. Kasey and others are defendants.

3d, 1885, in the cause of Hardin Price against Nathaniel C. Fontaine and others. The decree being unfavorable to Price, he obtained an appeal to this court. Opinion states the case.

<p>1. Practice in Chancery&emdash;Accounts.&emdash;Arbitrators to take account of partnership transactions, make an award, whereon a decree was founded. On appeal the decree is reversed, the award vacated, and a new account directed. Commissioner takes and reports a new account touching later transactions between the partners, but declines to embrace items embraced within the vacated awards. On his report a decree is entered. On appeal&emdash;</p> <p>Held :</p> <p>This is error. New accounts must be taken conforming to that ordered by this court on the first appeal.</p> <p>2. Idem&emdash;Commissioner's fees&emdash;Exceptions.&emdash;Unless exception be made in the court below to the amount charged by the commissioner for his fees which he duly makes oath to and which are allowed by that court, it is too late to make exception thereto in the appellate court.</p>

Clark, an infant suing by next friend, was plaintiff, and the city of Richmond was defendant. At the trial the plaintiff asked for instructions, which the court denied, but gave instead an instruction of its own. Whereupon the plaintiff filed his bill of exceptions to the ruling of the court, wherein he set out that he- “ introduced testimony tending to prove ” his case, &c., but did not set forth all the evidence that was before the jury.

Mills, deceased, and others, who were the distributees of Joseph Talley, deceased, were complainants, and Jacob L. Deitrich, administrator of said Joseph Talley, wa.s defendant. The object of this suit was to compel a settlement of his accounts, and to hold him liable for the loss of a certain debt the collection whereof he had entrusted to an attorney, by whose neglect to institute suit in time the note had become barred by the statute of limitations and the debt lost.

Barnum was defendant. The object of this snit was to declare null and void all deeds perfecting the title of said Harmon to one-half of the estate of his late uncle, Levi Deming, and especially a deed dated twelfth May, 1874, and purporting to have been executed by said Levi. Upon an appeal to-this court from a decree of 1879, it reversed, in 1882, said, decree, and directed the issues to be tried as to the genuineness and fairness of the procurement of the said deed.

M. Hatcher and als. This is sequel to Crews v. Hatcher, 78 Va. 460. After the cause was returned to the said court, Hatcher claimed his homestead exemption which was denied him in the property embraced in the deed which had been annulled as fraudulent. From this decree Hatcher appealed. Opinion states the case.

Eoach was plaintiff and the Virginia Midland Eailway Company was defendant. The object of this action was to recover damages for an injury inflicted on the plaintiff by the negligence of the defendant company’s employees, whilst the plaintiff was riding on one of the company’s engines at the invitation of the driver thereof. The jury found a verdict for $500 against the defendant company.

Camp against Sarah E. Norfleet. The object of the suit was to enjoin the collection of the purchase money of certain lands purchased by Camp from Norfleet, on the ground that in the tract which was estimated by* the vendor and the vendee to contain 892 acres there was a deficiency of 210 acres, on account whereof the latter •claimed an abatement of the purchase money that remained due and unpaid.

<p>Appeal from decree of circuit court of Elizabeth. City county, rendered twenty-second December, 1885, in a chancery suit in the name of Sears’ Executor against Marshall. This is sequel to the cause of Marshall v. Sears’ Ex’or and als., 79 Va. 49. Upon the return of this cause the circuit court, in obedience to the decree of this court, assigned the proceeds of the property embraced in the annulled deed to Marshall. A bill was presented to review and reverse the decree by Sears’ executor, which was dismissed at the costs of the complainants therein, and from the decree dismissing the same this appeal was obtained. Opinion states the case.</p>

Green and another were complainants and Herbert A. Claiborne and others were defendants.

C. Chapman and others were defendants. The object of the suit was to enforce the judgments of the complainants against the defendant, H. C. Chapman, on the alleged tenancy by the curtesy in a certain tract of land in said county, which had been conveyed to the wife of said Chapman by. her parent's deed dated November 2d, 1876, and containing terms intended to exclude his marital rights. She made her will, devising the land to her children, and died in 1881.

<p>1. Fraud&emdash;Rescission&emdash;Facts&emdash;Opinions.&emdash;False representations of material fact constituting inducement to contract, and on which a party has . a right to rely, is ground for rescission in equity. Matter of opinion may amount to affirmation and be inducement to contract, and will be ground for rescission, especially where parties deal not on equal terms, and affirmant has, or is presumed to have, means of information not equally open to the other party.</p> <p>2. Estoppel in Pais.&emdash;Case at bar.&emdash;Estoppel in pais is one that arises from the acts, conduct or declarations of a person, whereby he designedly induces another to alter his position injuriously to himself. But the acts, &c., alleged as such estoppel must be executed, and not merely executory. Case at bar is one where the acts, &c., alleged as an estoppel was held not to be an estoppel.</p> <p>3/ Appellate Court&emdash;Exclusion of evidence.&emdash;Though the chancellor has erroneously excluded evidence, yet if this court upon full consideration of all the evidence, including that excluded, sees no error in the decree0appealed from, it will affirm it.</p> <p>4. Purchasers for value without notice are not affected by latent equities; and grantees from such purchasers stand in the same position as their grantors, although such grantees were affected with notice at the time of the grant.</p> <p>5. IDEM'&emdash;Mode of defense&emdash;Essentials.&emdash;This defense may be made by plea or by answer. But answer, as well as plea, must aver all the essentials of the defense, viz : (1), That they are purchasers for valuable consideration actually paid; (2), that they have received, or are best entitled to receive, conveyance; (3), that their grantor was in possession of the property at the time ; and (4) that these facts happened before notice of the adverse claim. But this defense can not be made unless it is set up by answer or plea.</p> <p>6. Idem&emdash;Notice&emdash;Possession&emdash;Notice may be actual or constructive, and. any fact which would put a reasonable person on enquiry,—such as the possession being in some person other than the grantor,—is enough to affect purchaser with notice.</p> <p>7. Cases reviewed and explained. Carter v. Allen, 21 Gratt. 244.</p>

were plaintiffs, and said John Stotz was defendant. The sheriff’s return on the writ in the action was in the words and figures following, to-wit: “Executed Aug. 28, 1884, by delivering a copy of within summons to John Stotz through his daughter, over the age of sixteen years, he not being at his usual place of abode. Said summons was explained to his daughter.

Wooding and wife are complainants, and John Neff is-defendant. The decree being unfavorable to Neff, he obtained an appeal and supersedeas. Opinion states the-case.

Gordon is plaintiff, and the city of Richmond is defendant. Under instructions given the jury, they found for the defendant, and the plaintiff obtained a writ of error and: swper sedeas. Opinion states the cáse.

D. Andes and India A., his wife, against Z. L. Burson and others. The object of the suit was to annul a certain deed of trust executed by Andes and wife on her separate property to secure Burson as endorser for Andes on a loan of $500 to him, and also the sale which was made under it. The decree being in favor of complainants, the defendants appealed.

Argued at Richmond. Decided at Wytheville. Appeal from decree of circuit court of Pittsylvania This was a creditors’ suit, commenced in September, 1883, in the circuit court of Pittsylvania county.

Argued at Richmond. Decided at Wytlieville. Error to judgment of the circuit court of the city of' Richmond, rendered June 6th, 1885, in an action at law by attachment, by F. M. Masters, S. Groves, J. B. Williams and S. D. Williams against Josiah Harris, a non-resident, to' recover $5,000 damages for breach of contract.

Argued at Staunton. Decided at Wytheville. Appeal from decree of circuit court of Shenandoah •county, rendered April 10th, 1885, in the chancery suit wherein Jíohn T. Hickman’s executor and George A. Hupp are complainants, and Isaac Trout and James S. Trout are defendants. At the hearing the circuit court dismissed the bill with costs, and the complainants obtained an appeal and supersedeas. Opinion states the case.

Barnett and K. C. Kidd were complainants and John Wm. Barnett and Samuel C. Barnett were defendants. The object of the suit was to obtain relief against a Judgment rendered in the said court at its November term, 1884, in favor of the appellee, John W. Barnett, against the complainants in the bill, who were the appellants here.

, was plaintiff, and the Norfolk and Western Eailroad Company was defendant. The jury found for the plaintiff, and assessed his damages at 16,000. The defendant moved to set aside the verdict as contrary to the law and the evidence. The court refused, the defendant excepted, and the evidence was certified. At the trial several instructions were given by the court on the plaintiff’s motion, against the defendant’s objection.

rejected. Appeal from decree of circuit court of Roanoke county,, rendered sixth October, 1886, in the cause of Coles’ Execu- tor against Coles’ Heirs. The decree rejected the upset bid of Cuthbert Powell, overruled his objections to the sale of the land to J. C. Terry and J. M. Terry at $3,810 as- a grossly inadequate price, and confirmed said sale; and said Powell and L. C. Powell, his wife, and Mrs. E. D. Withers obtained an appeal and supersedeas. Opinion states the case.

Fogg, administrator of Samuel McConkey, deceased, and others are defendants. The decree being adverse to Robert Hamilton and Edward Graham, they appealed. Opinion states the-case.

S. Findlay, complainant, against John A. Campbell and al., defendants, and D. Trigg’s administrator, complainant, against W. J. Solomon and dl., defendants. The object of the first cause was to hold said Campbell and his sureties, as administrator of D. Trigg, deceased, liable for a devastavit in paying debts of an inferior dignity before paying the higher grade debt of the complainant.

28th, 1885, in a cause wherein George W. Cowan was complainant .and the Radford Iron Company was defendant. The object of the suit was to cancel a mining lease. The decree was against the complainant, and he appealed. Opinion states the case.

During the trial the defendant took several bills of exceptions to the rulings of the court, which are treated of in the opinion. When all the evidence on both sides had been given to the jury the defendant demurred to the plaintiff’s evidence, and the latter joined in the demurrer.

<p>1. Criminal Proceedings&emdash;Felonies&emdash;Motion for new trial&emdash;Prisoner's presence.&emdash;Prisoner must, be present at every stage of trial for felony where anything is done by which he is to be affected. Code 1873, ch. 202, § 3. His presence must be shown by the record when motion for new trial is made and overruled. Hooker's case, 13 Gratt. 763.</p> <p>2. Idem&emdash;Case of irregularity&emdash;Case at bar.&emdash;But if in his absence motion for new trial is made and overruled, and afterwards during same term, in his presence, the overruling is rescinded, and he is invited to renew the motion, but refuses&emdash;</p> <p>Held :</p> <p>The irregularity is thereby cured. Boswell's case, 20 Gratt. 865.</p> <p>3. Idem&emdash;Cumulative evidence.&emdash;It is not error to deny new trial asked for on account of after-discovered evidence that is merely cumulative.</p> <p>4. Idem&emdash;Evidence&emdash;Threats&emdash;Case at -bar.&emdash;It is not error to admit in a trial for house-burning evidence of prisoner’s threats to burn a house so close to the building burned that, during the latter’s burning, it took fire therefrom several times.</p>

<p>Appeal from decree of circuit court of Roanoke county, rendered April 9tli, 1886, in the chancery cause wherein the Roanoke Rational Bank and others were complainants, and Ferdinand Rorer and his trustees, L. H. Cocke and two others, James B. Gregory and Ella, his wife, P. H. Rorer, Ferdinand Rorer, Jr., Ernest Rorer, and Eulalia Rorer (the last five of whom are the heirs at law of Mrs. Julia Rorer, deceased, late wife of said Ferdinand Rorer) and others were defendants. The decree being unfavorable to the claims of the said heirs, they obtained an appeal and supersedeas to this court. Opinion states the case.</p>

Akers was complainant, and Nathaniel S. Akers and others were defendants. The object of the suit was to procure a rehearing of a previous decree in the same cause, with a view to obtain allowance of credits on N. S. Akers’ claim against the appellant to those which had been allowed him by the decree prayed to be reheard, upon the ground of after-discovered evidence. Opinion states the cas¿.

Emmert is plaintiff, and the Norfolk & Western Eailroad Company is defendant. The jury found for the plaintiff and assessed his damages at $950. The defendant asked that the verdict be set aside as contrary to the law and the evidence. The court overruled the motion, and the defendant excepted, and the evidence was certified. The court entered judgment according to the verdict; to which the defendant obtained a writ of error and supersedeas. Opinion states the case.

Argued at Wytheville. Decided at Staunton. Error to judgment of circuit court of Montgomery county, rendered September 23d, 1885, reversing, on the appeal of George Price and others from the decision of the county court of said county rendered September 5th, 1885, changing, under Code 1873, ch. 34, § 7, the location of James Lester’s place of selling liquor by retail under his license at Yellow Sulphur Springs, in said county, to Bang’s, in said county.

Argued at Wytheville. Decided at Staunton. Appeal from decree of circuit court of Wythe county, in the cause of Vaught against Rider, trustee, and Fisher. Fisher loaned Vaught $1,500. to pay an usurious debt to Lambert, and took from him a trust-deed to secure the loan. On default of Vaught, Rider, trustee, advertised for sale the land in a mode inconsistent with that prescribed in the trust-deed.

This suit was brought to enforce a vendor’s lien on a certain tract of land situate in the said county. The land was conveyed with a covenant of general warranty by Linkous, the plaintiff, to the defendant, Sergeant, and a portion thereof having been afterwards recovered of the latter by persons having a better title, the single question in the case related to the measure of compensation to which the defendant was entitled for such deficiency and eviction.

<p>Chancery Practice&emdash;Decree&emdash;Answer after.&emdash;Where decree of sale to satisfy lien for purchase-money is entered as by confession, and on same day purchaser answers, setting up that in a suit in same court a . controversy is pending as to the ownership of said money&emdash;</p> <p>Held :</p> <p>This is good cause to amend or suspend the decree until the question of ownership is settled. Code 1873, ch. 167, § 35.</p>

<p>Error to judgment of circuit court of Amherst county,, rendered April 12tS, 1884, at the trial of an issue wherein H. E. Smith was plaintiff and George H. Damerori was defendant. Verdict was for defendant. Plaintiff’s motion for new trial was overruled, and he excepted. Judgment being entered on the verdict, plaintiff obtained a writ of error and supersedeas. Opinion states the case.</p>

<p>Appeal from tliree decrees of circuit court of Nelson county, rendered in the chancery cause of Jeffersons against Lewis and others&emdash;the first entered in vacation, February 26th, 1885; the second entered April 18th, 1885, amending</p>

To this judgment the prisoner obtained from one of the judges of this court a writ of error and supersedeas. Opinion states the case.

Witt, administrator of D. A. Witt, deceased, in the cause of Jacob Warwick, in his own right, and as trustee of Mrs. Ellen Warwick, his wife, and her children, complainant, against John M. Warwick and Ellen Warwick and her children and others, defendants. (See 31 Gratt. 70.) The decree being unfavorable to Witt’s administrator, he obtained an appeal and supersedeas. Opinion states the case.

F. Kennerly and others, defendants. The decree being adverse to the defendants, they obtained an appeal and supersedeas. Opinion states the case.

<p>Railroad Companies&emdash;Liabilities&emdash;Evasion.&emdash;By executing a deed conveying its road, franchises, &c., to trustees selected by itself, a railroad company cannot evade its legal liabilities for injuries subsequently done to persons and property by the negligent operation of its road.</p>

Long and others, complainants, against Joseph B. Strayer and wife and others, defendants. The decree being adverse to Strayer and wife, they obtained an appeal and supersedeas. Opinion states the case.

<p>Argued at Richmond. Decided at Staunton.</p> <p>Error to judgment of circuit court of city of Norfolk, rendered May 29th, 1885, in an action of ejectment in which Mary Stokes and others were plaintiffs, and H. D. Van Wyck and others were defendants. Verdict and judgment being for the defendants, the plaintiffs obtained a writ of error and supersedeas from one of the judges of this court. Opinion states the case.</p>

Argued at Bichmond. Decided at Staunton. Error to judgment of circuit court of Danville, rendered January 27th, 1886, in the action wherein George W. Wells was plaintiff, and the Virginia Fire and Marine Insurance Company was defendant. The defendant plead specially that by a stipulation in the policy, the time for bringing a suit thereon was limited to six months next after the loss, ■and that the suit had not been brought within that period.

Cazenove and others are complainants, and the Washington, Ohio and' Western Railroad Company and others are defendants.

<p>Error to judgment of circuit court of Amherst county, rendered at its October term, 1884, in two actions at law, in one of which James S. Dillard and W. E. McCorkle, partners as Dillard & McCorkle, are plaintiffs, and in the other David Earn and John Hickson, partners as Earn & Hick-son, are plaintiffs, and Thomas Dunlop was defendant in both. The verdict and judgment in each case being for the defendant, the plaintiffs asked for new trials, which being denied, certificates of the facts were asked for and refused; and certificates of the evidence being then requested, the trial judge required the counsel to agree on the statements of the evidence as preliminary to his signing the bills of exceptions. The counsel retired to prepare said statements, and after a short absence returned into court, each with his own statement not agreeing with the other in all particulars, and found the judgments entered, the orders signed, and the court adjourned for the term. On application of the plaintiffs, this court issued a mandamus to compel the trial judge to certify the facts or the evidence. But the trial judge declined to do so, alleging lapse of memory as his excuse. . Upon presentation of the record to this court, in the petition of the plaintiffs, writs of error and supersedeas were awarded to the judgments. Opinion states the case.</p>

N. Horner, executor of A. H. Horner, deceased, is plaintiff, and J. F. Ebersole is defendant. The court below sustained defendant’s demurrer to the declaration, and plaintiff declining to amend, entered judgment for defendant. To this judgment plaintiff obtained a writ of error. Opinion states the case.

<p>Appeal from decree of circuit court of Page county, entered April 24th, 1885, in the cause of A. J. Welfley, plaintiff, against the Shenandoah Iron, Lumber, Mining and Manufacturing Company and Benjamin Milnes, defendants, to enforce specific performance of a contract for the sale of land entered into by Welfley with said company. At the hearing the bill was dismissed, with costs, and complainant appealed. Opinion states the case.</p>

F. Flick, complainant, against Henry N. Beery, administrator of Charles Fridley, deceased, and Jasper Hause, trustee, defendants. At the hearing the bill was dismissed with costs, and Flick obtained an appeal and supersedeas. Opinion states the case.

<p>Error to judgment of circuit court of Frederick county, rendered at its November term, 1886, in an action at law wherein Charles B. Hancock, administrator of David Goff, deceased, is plaintiff, and M. J. Triplett is defendant. The judgment being adverse to defendant, he obtained a writ of error and supersedeas. Opinion states the case.</p>

R. Sterling and others, complainants, against E. L„ Conrad, administrator of A. B. Irick, deceased, EL El. Wilkinson and others, defendants. The decree being adverse to Sterling and Conrad they appealed. Opinion states the case.

<p>Appeal from decree of circuit court of Frederick county, pronounced November 27th, 1886, in the cause of V. and J. H. Cleaver, plaintiffs, against P. T. Matthews and others, defendants, dissolving an injunction and sustaining a demurrer to the plaintiff’s bill.</p> <p>The bill averred that in September, 1883, the appellants entered into a written contract with the appellee, Matthews, to purchase two contiguous tracts of land—one containing about sixty-eight acres, the other about three acres—at a stipulated price; that when the contract was entered into the vendor agreed to furnish a plat of the land showing its metes and bounds; that a deed conveying the land, with general warranty, was made, but not until the summer of 1884, and that the plat was not delivered until November, 1885; that prior to the date of the contract, above mentioned, Matthews had contracted to sell, and did sell, four acres of the sixty-eight-acre tract to one Boyer, and put him in possession thereof, though no deed to Boyer was made; that afterwards Boyer sold and delivered possession of the said four acres to W. and J. Hottell, who in turn sold the same to one Shull; that at the time the complainants bought the land they had no notice of the sale to Boyer, and that when the deed and plat were delivered to them all the timber had been cut from the said four acres.</p> <p>It was also averred that the complainants, under their contract, were not entitled to possession of the land until March, 1884, and that they were ignorant of the exact boundaries of the land until the plat was delivered, when, for the first time, they became acquainted with them; that they then ascertained that the said four acres were embraced in their contract and in the deed of Matthews to them, and that by reason of the timber having been cut they had sustained great loss, etc.</p> <p>It was also averred that Matthews was insolvent, and that the trustee in the deed of trust executed on the land, and another parcel of ten acres, by the complainants to secure the payment of the purchase-money, had advertised the land for sale; that all the land conveyed by the deed of trust had been advertised, whereas the sixty-eight-acre tract alone was amply sufficient to pay the balance of purchase-money remaining unpaid; that the printed ad vertisement of sale misdescribed the last-mentioned tract, it being described therein as having been conveyed to Matthews by deed from E. H. Boyd and R. T. Barton, special commissioners, and U. L. Boyce, whereas it, in fact, had been conveyed by Boyd and Barton, special commissioners, and Gr. L. Boyer. And the prayer of the bill was that the sale be enjoined; that the complainants be allowed a credit on the balance due by them to the amount of the loss sustained by them as aforesaid, and for general relief.</p> <p>An injunction was awarded, and afterwards the defendants demurred to the bill, and at the hearing the injunction was dissolved and the demurrer was sustained, with leave to the complainants to file an amended bill. They declined, however, to do so, and, upon their application, an appeal was allowed by one of the judges of this court.</p>

Myers, by her next friend, Noah W. Berry, is complainant, and A. J. Myers, was defendant. At the hearing the court dismissed the bill, and the complainant procured an appeal. Opinion states the case.

Argued at Staunton. Decided at Richmond. Error to judgment of circuit court of Botetourt county, rendered at its May term, 1887, in an action of ejectment wherein Corbin M. Reynolds was plaintiff and D. S. Cook was defendant.

Argued at Staunton. • Decided at Eiclrmond. Error to judgment of circuit court of Eockbridge county, rendered fifth. May, 1887, in an action of trespass on the case for damages for negligent injury, wherein the defendant in error, Moose, was plaintiff and the Shenandoah Valley Eailroad Company was the defendant. The action was brought to recover damages for injuries received by the plaintiff while travelling as a passenger on the road of the defendant company.

<p>Appeal from decree of circuit court of Fluvanna county, rendered sixteenth April, 1884, in a suit wherein William A. Noel, as administrator of Eliza Schue, deceased (suing for himself and others), against George P. Seay, as administrator de son tort of said Eliza Schue, deceased, and in his own right and Bettie L., his wife. Opinion states the case.</p>

, his wife, and others, complainants, against Chas. Guerrant, executor of Charles R. Woodson, deceased, and others, defendants, and Charles Guerrant, as such executor, complainant, against W. B. W. Brooking and others, defendants. The decree being adverse to the said executor, he obtained an appeal and supersedeas. Opinion states the case.

June, 1886, in an action at law wherein .Thomas G-. Pitts, administrator of N. J. Kellarn, deceased, was plaintiff, and the New York, Philadelphia & Norfolk Railroad Company was defendant, for the alleged negligent killing of intestate by defendant company. At the trial there was a demurrer to the declaration, and exceptions to instructions given, which were overruled.

A. Legrand and ■ Lucy B., his wife, complainants, against Samuel Rixey, James Barbour, trustee, J. C. Gibson- and Mary G., his wife, defendants. Mrs. Legrand (then wife of Chas.

Field, late attorney-general of Virginia, against Morton Marye, auditor of public accounts of Virginia, in pursuance of section 1, chapter 44, Code 1873 The facts being agreed and put in writing, all matters of law and facts were submitted to the determination of the court, which gave judgment for the defendant. And the plaintiff moved the court to set aside its judgment and grant him a new trial.

1ST. Rector, administrator of W. L. Leith, to the report of the master returned eighteenth October, 1884, in the cause of Carter and Leith against G. W. Carter, and dismissing the petition filed therein by E. S. Anderson, administrator of Christiana Leith. From this decree the latter administrator appealed. The opinion states the case.

<p>Appeal from decree of circuit court of Powhatan county, rendered at its May term, 1884, in the chancery cause of H. M. Smith & Co. against A. S. Mayo, L. M. Mayo and wife, and W. J. Dance, trustee. The object of the suit was to set aside a certain deed executed by A. S. Mayo, tenth August, 1878, settling certain real estate on his wife, and to subject the same to the payment of a judgment in their favor against said A. S. Mayo, surviving partner of himself and M. M. Mayo. There was a reference to a master to take an' acoount of liens and their priorities. As the first lien, there was reported a judgment confessed in the clerk’s office of said circuit court for §2,525 in favor of Joseph E. Mayo by the said A. S. Mayo, who was then clerk of the said court. The complainants excepted to the report on the grounds that the clerk of the court could not confess a judgment against himself in his own office, and that the said judgment was null. The circuit court overruled the exception, and the complainants obtained an appeal and supersedeas.</p>