Volume 84 — Virginia Reports

<p>1. Criminal Proceedings—Jury—Judge’s list.—Writ of venire facias commands sheriff to summon twenty-four persons from list to be furnished by county judge, and to have “there this writ and the judge’s list of said jurors,” is followed in the record by “the list of venire referred to above, and signed, “ W. S. Gooch,” and is endorsed, “Executed by summoning the within-mentioned parties,” and signed by the sheriff.</p> <p>Held:</p> <p>The record conclusively shows that the persons were summoned from a list furnished and signed by the county judge.</p> <p>'2. Idem—Colored persons.-—The county court overruling motion to quash said writ because jury was composed of colored men, assigned as a reason that the prisoner and prosecutrix were colored, and that the jury was composed of intelligent colored men qualified as jurors.</p> <p>Held :</p> <p>This is not proof that the court intentionally summoned those persons because they were colored, and the motion was properly overruled.</p> <p>3. Idem—JEvidence'of chastity— At trial for rape it having been proved, without objection, that daughter of prosecutrix living with her, had an illegitimate child, it was held that was such attack upon the character of prosecutrix for chastity as admitted evidence of her general character.</p> <p>4. Idem— Qusere.—Can character of prosecutrix for chastity in the trial for rape, be supported by evidence, unless it has been previously attacked?</p> <p>5. Idem—Case at bar.—The evidence, not the facts, being certified, and this court looking only to the evidence for the Commonwealth, the verdict of guilty is not such a palpable deviation from said evidence as ought to cause this court to set aside said verdict.</p>

A. Glasgow, executor of James Paxton, deceased, and trustee of John L. Circle, &e., was complainant, and John L. Circle, Charles Circle, Sarah A. Circle, Oliver Shirkey, and William' W. Womack were defendants. Erom this decree the said Womack obtained an appeal and supersedeas.

<p>1. Attorney-General—Extra compensation.—This officer is entitled, under acts approved April 4,1877, amended March 12,1878, to be paid out of the public treasury, his salary and nothing more.</p> <p>2. Idem—Overpayment—A ction by Stale.—The Commonwealth may recover by an action from the Attorney-General, fees paid him by the auditor under mistake that he was entitled thereto as part of his compensation.</p> <p>3. Cases Reviewed—Thon’s Case, 77 Va., 289.</p>

<p>Application of George Moon’s administrator for a peremptory writ of mandamus to the Honorable B. B. Wellford, judge of the circuit court of the city of Bichmond, to permit appli■cant to become a party to a certain suit, or alternatively, for an .appeal from the denial of such permission by the said court.</p>

<p>1. Negotiable Instruments—Notice of protest—State of war.—In suit against endorser of negotiable note, it appeared that defendant, at and for a time prior to maturity and protest of note, was with his family within the Confederate lines because of the presence of the Federal army in the city of his residence, and did not return until the close of the war. Notice of protest was left with the servant in charge of his house in said city:</p> <p>Held :</p> <p>Not to be sufficient to fix his liability as such endorser, if defendant’s absence was, or might, by reasonable diligence, have been known to the holder of the note. McVeigh v. Bank, 26 Gratt., 785.</p> <p>2. Appellate Court—First appeal—•Second appeal.—It is the well settled rule of this court that a question which has been decided upon the first appeal in any cause, cannot be reviewed or reversed upon any subsequent appeal in the same cause. Stuart & Palmer v. Preston, 80 Va., 625.</p> <p>8. Instructions—Federal questions.—The court will not give instructions injecting irrelevant federal questions into the case. Bank v. McVeigh, 98 U. S., 832.</p>

<p>Argued at Staunton. Decided at Richmond. Error to judgment of circuit court of Augusta county rendered December 3d, 1886, in an action on an accident policy wherein Nora Newman, by her next Mend, was plaintiff, and the United States Mutual Accident Association was defendant. At the trial instructions were asked for by the defendant, and refused, and others given in lieu thereof; to which the defendant excepted. The verdict was for the plaintiff’ and judgment was entered accordingly, for $3,000.</p>

<p>1. Bailroad Companies—Negligence—Crossings—Case at bar.—Defendant’s track ran on a city street. From it a side track led to a wharf through a gate surrounded by high fences, and on the east by buildings that prevented persons coming from the wharf from seeing approaching trains. No watchman was at the gate. At time of accident defendant was pushing a train to the wharf, but gave no signals. Plaintiff was driving out, when some one called him and he looked back, and the train collided with his truck and ran over his foot, whereby he sustained injury:</p> <p>Held:</p> <p>1. It was plaintiff’s duty to look and listen for approaching trains with the care of an ordinarily prudent man; if he failed to do so, he cannot recover, unless, when defendant saw him, or should have seen him, it failed to use proper means to avoid the accident.</p> <p>2. If place of accident was such that a person driving out could not see approaching train, plaintiff’s not looking in front of him was not contributory negligence, unless he knew the train was approaching.</p> <p>8. Instruction, which contains an abstract proposition and sheds no light on the case, is properly refused.</p> <p>4. Company running its trains on city streets, must use greater care than in less frequented localities, and any neglect of precautions proper in such case, constitutes negligence.</p> <p>5. If pushing train increased plaintiff’s danger, it was negligence in defendant not to give timely notice.</p> <p>6. Negligence being a mixed question of law and fact, it was proper to leave it to the jury to find whether defendant had done or omitted any act which, in the exercise of ordinary care, it was its duty to perform. -</p> <p>2. Idem—Verdict—Excessive damages.—Under the circumstances of this case, a verdict of §2,000 was not excessive.</p>

<p>1. Insurance—Rules of Construction.—Such contracts must be construed as other contracts. The exceptions must be construed most strongly against those for whose benefit they are inserted. The courts must maintain and enforce them as they are made. Accident Association v. Newman, ante, p. —.</p> <p>2. Idem—Conditions—Premises vacated—Case at bar.—Policy contained conditions to be void, if the premises became vacant; if the property became incumbered; if the policy be assigned; or if the title of insured be less than fee simple, unless the written consent of the company be endorsed. The conditions were broken. No consent was endorsed:</p> <p>Heed:</p> <p>The policy was avoided, whether the breaches were wilful and substantial or not.</p>

<p>Criminal Proceedings—Continuance—Arraignment.—County court wherein accused was indicted for capital felony, refused to consider, until after Ms arraignment, motion for continuance on ground of absence of material, duly summoned witnesses; and thereupon accused elected to be tried in the circuit court:</p> <p>Held:</p> <p>Such refusal deprived the accused of his right of free election of forum, and was error. Acts 1877-8, p. 339; Joyce’s Case, 78 Va., 287.</p>

<p>Practice at Common Law—Executors—Declaration—Demurrer—Case at bar.— Testator devised hotel in R. to defendants as his executors to keep same in repair, &c. As such they managed the hotel and kept and settled their accounts. Between the curbing and the entrance to hotel is a cellar hole, part of the premises, covered by an area-light. Said area-light gave way under plaintiff, who fell into the cellar beneath and sustained injury. To recover damages therefor, he sued defendants, describing them in his declaration as executors, &c., and alleged that they being possessed of said premises, did negligently permit said cellar hole to he and continue defectively covered, by reason whereof plaintiff was injured as aforesaid. Defendants demurred:</p> <p>Held:</p> <p>1. Though sued as executors, yet this is merely a descriptio personae and surplusage, as no cause of action is set forth for which, under any circumstances, they could be held responsible as executors.</p> <p>2. Though charged as executors, the judgment should be de bonis propriis.</p>

Ferguson, and Elizabeth Tench, the heirs, and Henry S. Trout, the administrator of Isham M. Ferguson, deceased, were pMntiífs, and T. T. Fishburne and Callie L., his wife, Avere defendants. The object of the suit was to cancel a deed made by the decedent September 15th, 1880, to said Fishburne and Atúfe, conveying a house and lot in what was then called Big Lick, now the city of Roanoke, and some personal property therein. An issue out of chancery Avas awarded.

Instructions were asked for by the defendant at the trial and given by the court, to which ruling the plaintiff excepted, and the verdict and judgment being for the defendant, the plaintiff obtained a writ of error.

<p>Appeal from decree of hustings court of Danville, rendered March 21st, 1882, in the chancery cause wherein the appellants, Lucy T. Dugger and Benjamin E. Dugger, infant children and heirs at law of Louisiana E. Dugger, deceased, who. sue by D. T. Harvey, their next friend, are complainants, and Daniel Dugger, William E. Boisseau, A. Y. Stokes & Company and others, are defendants. By said decree the plaintiff’s bill was dismissed, and they appealed to this court.</p>

Graveley, deceased, and L. B. Graveley and W. A. Graveley, the heirs and distributees of the deceased, were plaintiffs, and P. B. Graveley was defendant. The decree was adverse to the defendant and he appealed to this court.

<p>Appeal from decree of circuit court of Augusta county, rendered December 2nd, 1885, in tlie cause of Mary L. Kerr et al., -complainants, against M. F. Kerr, M. G-. Kerr, "W". T. Crawford, "W". Dally, and D. F. Clemmer, defendants. The decree not being favorable to complainant, slie appealed.</p>

<p>1. Appellate Court—Bill of exceptions—Facts—Fkidence.—Upon an appeal from refusal of trial court to set aside the verdict and grant a new trial, the facts proved must be presented to this court by a bill of exceptions, which states that those facts are all the facts. And when the evidence, and not the facts, is certified, it must appear from the bill of exceptions either by direct statement, or by clear inference, that the evidence presented is all the evidence; else, this court cannot know upon what the lower court based its action, and the judgment appealed from must be presumed to be right.</p> <p>2. Idem:—Circuit Court—County Court.—When circuit court on appeal from judgment of county court, reverses it, but files no opinion, and when on appeal from judgment of circuit court to this court, there is no argument here for the defendant in error, the case must be considered here upon the record as made in the county court, and the judgment of that court must be presumed to be right, unless error be apparent on the record, or appear from a bill of exceptions properly taken.</p>

G. Whittle, receiver in the cause of Jesse Wootin’s administrator against Lane, is plaintiff, and Joseph H. Eggleton and Allan G. Price, and others, are defendants. Upon hearing, the decree was adverse to the defendants, and they obtained an appeal and supersedeas.

F. Rorment was plaintiff and the Richmond and Danville Railroad Company was defendant. The object of the suit was to recover damages for an injury done to the plaintiff hy and through the alleged negligent acts and omissions of the said company’s agents. When the jury had heard the evidence on both sides, the plaintiff asked for the following instructions: “ 1.

Slaughter, administrator de bonis non, with the will annexed, of Samuel Garland, Sr., deceased, is complainant, and Charles Y. Morriss, administrator with the will annexed of Burr Garland, deceased, and Mary Garland, his surety, are defendants. • The defendants demurred to the bill for want of jurisdiction in the Virginia courts and for want of necessary parties. The circuit court sustained the demurrer and dismissed the hill for want of jurisdiction.

33. Spencer, administrator of Eobert Torian,- deceased, was plaintiff, and the Eiehmond and Alleghany Railroad Company was defendant. The object of this suit, which was brought under the statute (Code 1873, ch. 145, § 7, et seq.)y was to recover $10,000 damages for the alleged negligent killing of the plaintiff’s intestate by the defendant company’s agents, o.i the 25th July, 1881, near Gladstone, in said county.

Cralle, the appellant, was plaintiff, and Louise ~W. Cralle, the appellee, was defendant. This cause was before this court on an appeal from a former decree, and is reported in 79 Va., 182. When it went back the circuit court altered the decree appealed from in a respect as to which it had been affirmed by this court, and the plaintiff again appealed.

<p>Error to judgment of circuit court of city of Richmond, rendered June 28th, 1886, in an action of trespass on the case, wherein the plaintiff in error was plaintiff, and the defendant in error was defendant.</p> <p>The action was brought December 3d, 1885. The declaration contained four counts. The first two counts are for an alleged slander. The third is for an alleged libel. The fourth is for an alleged malicious prosecution. The first three counts are for matters alleged to have taken place in the county of Mecklenburg, in this State, where both parties resided. Said fourth count is for a matter alleged to have occurred at the said city of Richmond.</p> <p>Process to answer the action was duly served on the defendant in the city of Richmond. To the first three counts in the declaration, a plea in abatement to the jurisdiction was filed. And the defendant also demurred to the whole declaration and to each count thereof; and to the fourth count he filed a special plea, setting forth that the plaintiff had not been discharged and acquitted of the prosecution in said fourth count set forth.</p> <p>The plaintiff demurred to both of the defendant’s pleas. To the second he replied generally. The circuit court overruled the demurrer to the whole declaration, and also as to the first three counts, but sustained the demurrer as to the said fourth count, and dismissed the suit as to said fourth count. And then proceeding to consider the plea in abatement as to the first three counts of the declaration, and the demurrer to said plea, and the motion of the defendant to dismiss the suit as to the first three counts, the court overruled the demurrer to said plea, and sustained the plea, and ordered the suit to he dismissed. To this judgment of the circuit court the plaintiff applied for and obtained from one of the judges of this court a writ of error and supersedeas.</p>

Sarah K. Saunders was iilaintiff, and the Virginia Fire and Marine Insurance Company was defendant.

Esther Kayton was plaintiff, and ¥m. H. H. Trice was defendant. Under instructions of the court the jury returned their verdict for $500 damages for the plaintiff; which verdict the defendant moved the court to set aside, but the court refused and entered judgment according to the verdict. And the defendant excepted, and obtained a writ of error and supersedeas from one of the judges of this court.

<p>Contracts—Novation—Satisfaction—Case at bar.—K., an insolvent, held C.’s bond and assigned it to his mother, F., a creditor of K., agreed that if C. would assume K.’s debt to him, and pay the interest annually to F.’s sister during her life, the principal should be deemed satisfied. C. procured the mother to assign the bond to F.; which bond was replaced by another payable to the sister, and surrendered to C. C. paid the annual interest to the sister during her life. Afterwards, T. got a judgment against F., and brought his suit in chancery to enforce the lien of his execution on the alleged indebtedness of C. to F.:</p> <p>Held :</p> <p>The transaction between F. and C. being bona fide for a valuable consideration and between parties suri juris, was valid, and satisfied the obligation of C.</p>

Owen was plaintiff, and R. Ragland was defendant. Verdict and judgment being against defendant, he obtained a writ of error and supersedeas.

rendered December 14th, 1886, in a petition for damages for negligent injuries, filed by Mrs. D. A. Reed against Decatur Axtell and Laurence Myers, receivers, in the suit in chancery, wherein Green & Bocock, trustees, are complainants, and the Richmond and Alleghany Railroad Company and others, are defendants.

<p>Appeal from decree of circuit court of the county of Prince Edward, rendered August 28th, 1886, in a chancery cause wherein R. M. Dickenson was complainant, and C. C. Farley, A. J. Davis, F. H. Scott, Win. D. Bice, trustee, Robert B. Berkeley, administrator of W. B. Berkeley, deceased, and others were defendants. At hearing, the bill was dismissed and complainant appealed.</p>

H. Ingles as treasurer of Henry county, wherein the Commonwealth, as the relation of John ~W. Tuggle, was plaintiff, and C. H. Ingles, John T. Stovall and others, were defendants. The judgment on the issue joined being in favor of the plaintiff, the defendant, Stovall, obtained a writ of error and supersedeas.

<p>1. Practice in Chancery—Creditors’ bill.—A bill to which, the administrator, widow, and heirs are made defendants, and the prayer of which is that the amount of the complainant’s debt be ascertained by a master commissioner; that an account of the assets, real and personal, and of the debts, of the estate, be taken; and for general relief, is a creditors’ bill, though it does not profess to be filed in behalf of all the creditors of the decedent.</p> <p>2. Wills—Coyitract for legacy—Suit to enforce.—Where one in his lifetime, for a valuable consideration, promised to make a provision by his will for another, and dies without making it, the promisee is entitled to enforce the contract by a suit against the promisor’s estate.</p> <p>3. Idem— Case at bar.—-Here it appears that promisor had in his lifetime supported promisee’s family for about eight years, and left him a small property by his will, and so fulfilled his promise:</p> <p>Held:</p> <p>Plaintiff cannot, under the circumstances, maintain his suit for further compensation.</p>

Moore, Jr., administrator d. b. n. c. t. a. of Henry Seevers, deceased, is complainant, and John D. Richardson, Jr., and others are defendants. John Richardson by agreement of May 2nd, 1848, sold to his sons-in-law, T. P. Pendleton and JohnD. Richardson, Sr., a tract of land, stating that one-fonrth of the purchase money should be retained by the vendees respectively, for the benefit of their wives and children, as advancements from him to them.

and 15th, 1885, respectively, in a certain proceeding wherein the Central Lunatic Asylum is plaintiff, and Charles W. Purcell, executor of Bacon Tait, deceased, and Isaac Davenport, Jr., assignee of Bacon Tait, and Thomas Moore and Constance R., his wife, the heirs at laAV of decedent, are defendants. This Avas a proceeding in the said court to condemn certain real estate for the use of the Central Lunatic Asylum.

<p>Official Bonds—Successive Terms—Surety—Failure to Settle—Case at Bar.— S. was county treasurer for three terms, beginning in 1875,1779 and 1883. He resigned in 1885, owing the State a balance for taxes collected in that year. In 1878 there was a balance due which remained due from year to year, the collections for each year being used to pay the balance for the preceding year. 0. was surety on his official bond.</p> <p>Held:</p> <p>1. C. is liable for the balance due at the end of the treasurer’s term.</p> <p>2. The failure to require the treasurer to make prompt settlements did not discharge C.</p>

<p>Wills— Construction—Special legacy—Case at bar.—Testator disposed of his whole estate by the first four clauses of his will, and in the fifth said: “ Independent of all the provisions heretofore made by me I give eight hundred dollars out of the money due my estate to be applied to the education of my youngest daughter, Fanny.”</p> <p>Held :</p> <p>This legacy is to be paid out of any fund in hand, or other assets, real or personal, belonging to the estate.</p>

G-. Bridges to be the rightful chief of police of said city. To this judgment a writ of error was obtained by the plaintiff in error, Jobson.

Lucas for a violation of the revenue laws. The verdict was for the defendant and the judgment was entered accordingly. To this judgment the commonwealth obtained a writ of error.

L. Pedigo, plaintiff, against Henry 0. Lester, defendant, to enforce a mechanic’s lien for three hundred and twenty-four thousand brick, at ten dollars and fifty cents per thousand, on a certain brick factory, &c. Prom the decree in favor of plaintiff, defendant appealed to this court.

Flanagan was plaintiff, and James Bowen was defendant. At the trial defendant asked for the following instructions: 1st. If the jury believe from the evidence that at the time of the accident in the declaration mentioned, the plaintiff and the velocipede on which he was riding were on the track and in the employment of the Chesapeake and Ohio railway company, then the jury are instructed that it was the duty of said railway company to have a flagman at the crossing to warn…

Thompson and Peter L. Fisher v. Dickenson, heard together. The decree being adverse to the said Fisher, he obtained an appeal and supersedeas.

<p>1. Practice at Common Law—Statute of limitations—Replication—Demurrer.— In action of detinue defendant pleaded that the cause of action did not accrue within five years next before action brought. Plaintiff replied admitting averment of plea, but averring subsequent acknowledgment by defendant of title in plaintiff made within five years. Defendant demurred to this replication:</p> <p>Held: The demurrer was properly sustained. Code 1873, ch. 146, and 20.</p> <p>2. Idem—-Plea in bar—Replication—Demurrer—Judgment.—-If plea be to whole declaration, and defendant’s demurrer to plaintiff’s replication to such plea be sustained, judgment will be given that plaintiff take nothing by his bill, and that defendant recover against him his costs.</p>

Yates was plaintiff, and the town of Warrenton was defendant. The decree dissolved the injunction which had been awarded on Yates’ motion, and he obtained an appeal here.

Ayres, D. Ayres, and William Ayres & Son, were defendants. Judgment being for tbe defendants, tbe plaintiff brought the case here by a writ of error.

Robinson, by, &c., and George 0., Lucy 0., Edward T., Mary C.; and Rebecca Robinson, infant children of said G. L. and 0. A. Robinson, by, &c., and 0.

<p>Witts—Olograph—Codicil.—A will wholly written, signed and sealed by the testator, who is of sound mind, containing an attestation clause unsigned by witnesses, is valid. And another paper of a testamentary character bearing same date, and found folded up with said will and written and signed by the testator, is a valid codicil, though it does not refer to said will.</p>

of Culpeper county, rendered June 8th, 1885, in the chancery suit wherein Samuel W. Thompson, in his own right, and as administrator of George C. Thompson, deceased, was complainant, and J. Ambler Brooke, administrator d. b. n. of John Cooke Green, deceased, Anne S: Green, executrix of James W. Green, deceased, B. Pulliam, administrator of F. J. Thompson, deceased, and others, were defendants.

, 1886, in the chancery cause of John Powell, complainant, against Jennie E. Powell, administratrix of Charles It. Powell, and in her own right. The decree being favorable to the complainant, the defendant obtained an appeal and supersedeas.

L. Wager, assignee of H. M. Wager, was plaintiff, and John S. Barbour and C. C. Beckham were defendants. The object of this action was to recover $1,000, with interest from May 1st, 1860, until paid, due by the bond. At the trial there was a verdict for the defendants. The plaintiff moved the court to set aside the verdict and grant him a new trial. This motion the court overruled, and entered judgment in accordance with the verdict.

Bockover, string for himself and all other creditors of Minia D. Whitehurst, &c., is plaintiff, and Jane E. Browne, administratrix of V. H. Browne, deceased, O. W. Whitehurst, in his own right and as executor of Minia D. Whitehurst and others, are defendants. The decree being in favor of the plaintiffs, the said Jane E. Brown, as such administratrix, obtained an appeal and supersedeas.

Nelson, late sheriff of said county, and as such committee administrator of William M. Hume, deceased. The decree being adverse to the interests of John A. Spilman and E. M. Spilman, Jr., administrator of. L. P. Spilman, deceased, two of the defendants, they obtained an appeal'and supersedeas.

Application of George II. Poindexter for a writ of mandamus to compel Samuel 0. Greenhow, collector of State taxes for the city of Richmond, to receive a coupon of the issue of 1871 in payment of the taxes assessed upon him.

Wambersie and others were defendants. The said society filed its bill claiming to have been made a corporation in 1811 to administer the trust created by the will of William Monroe in 1769, bequeathing his estate to he invested and the income used to educate the' poor children of Orange county.

<p>Argued at Staunton. Decided at Richmond. Error to judgment of circuit court of Rockbridge county, rendered July 14th, 1884, in an action of ejectment (removed from circuit court of Bath county), wherein George Randolph is plaintiff and the Longdale Iron company is defendant. A jury was waived and all matters of law and fact submitted for determination to the court whose judgment Avas given for the plaintiff for all the land (with exception of a certain triangular interlock), included within the lines of the Barclay patent. To this judgment the defendants excepted. The court certified the evidence. They obtained a writ of error and supersedeas.</p>

<p>1. Equitable Jurisdiction and Relief—Dedication—Square.—A square was dedicated to the public and used for county buildings and standing for wagons, &c., ever since the formation of the county in 1743, and before the city wherein it lies was incorporated:</p> <p>Held :</p> <p>Such dedication was for such special purposes only, and a court of chancery will enjoin the city from altering a part of the square.</p> <p>2. Idem—Subsequent conveyance.—A deed of conveyance made in 1801 under act of 1799, to the justices of the county and the mayor and aldermen of the city, for the said square, did not confer upon the city the exclusive right to direct the uses to which the square should be applied.</p>

<p>Appeal from decree of circuit court of Loudoun county, rendered at its January term, 1887, in the chancery cause wherein Catherine D. L. Stone and others were plaintiffs, and James E. Caruthers, sheriff and administrator d. b. n. c. t. a. of Joseph Lewis, deceased, and others were defendants. The object of the suit was to construe the will of the said Joseph Lewis, who died in 1834, whereby he devised his home place to his wife for her natural life, and after her decease that it be sold, and the proceeds divided equally among his surviving brothers and sisters and the children of such as may be dead. The complainants contended that the word “surviving” referred to those who might be surviving at the decease of his wife, and the defendants that it referred to those who might be surviving at tbe testator’s own death. The circuit court decided that the proceeds were to be divided equally per capita among those who answered the description of a brother or sister at the death of the testator, and the children of such brother and sister as were dead. From this decree the defendants obtained an appeal and supersedeas to this court.</p>

<p>1. Partnership—Dissolution—Power of partner.—After dissolution no partner can create a cause of action against the other partners except by a new authority conferred upon him for that purpose, whether the consideration be a pre-existing debt of the firm, or any auxiliary consideration that might prove beneficial to them. Bell v. Morrison, 1 Peters, 352.</p> <p>2. Idem—In liquidation—Notice.—Indorsement on a negotiable note of the words “ in liquidation ” has often been held sufficient to give notice of the dissolution of the partnership, and no recovery can be had on such indorsement against the other partners.</p> <p>3. Idem—Instructions—Case at bar.—P. & W. dissolved partnership. Notice of dissolution stated that either partner was authorized to use the firm name in liquidation. Later, P. took from a debtor of the firm, in settlement, a negotiable note payable “ to P. & W. in liquidation.” This note P. transferred to plaintiff by a like indorsement. At trial the jury were instructed that W. must prove that the note was not used for the firm purposes, else they should find for plaintiff:</p> <p>Held:</p> <p>Error.</p>

Weiss was plaintiff, and Wiley J. Hohbs, Jr., was defendant. The court on defendant’s motion quashed the attachment as having been sued out on insufficient grounds. To this judgment the defendant excepted and is here on writ of error and supersedeas.

Waller and Jennie Boggs for a felonious assault upon the person of one William S. Waller. By the judgment of the county court the defendants were sentenced to two years confinement in the penitentiary in accordance with the verdict of the jury.

<p>1. Railroads—Negligence—Persons on track—Instructions.—An instruction founded on the engineer’s duty after discovering a person walking on the track, but ignoring his duty to exercise ordinary care to discover that person’s dangerous position, is improper.</p> <p>2. Idem— Licensee.—And so likewise is an instruction founded upon the idea that a person is a trespasser, who is walking on the track within city limits and for a long time, with the company’s acquiescence, the common pathway of the public.</p> <p>3. Idem—Rule of liability.—Mere negligence will not disentitle plaintiff to recover, unless it were such that, but for that negligence, the misfortune could not have happened; nor if the defendant might, by the exercise of care on his part, have avoided the consequence of the carelessness of the plaintiff.</p> <p>4. Idem—Instructions.—Where instructions already given cover the entire case and properly submit it to the jury, it is not error to refuse to give others even though properly stating the law. I/unatic Asylum v. Flanagan80 Va-, 110.</p> <p>5. Idem—Negligent killing—Case at bar.—In action by decedent’s administrator against railroad company, it was proved that the only outlet from the house whence decedent came, was by way of company’s tracks, that had long been, with company’s acquiescence, the common pathway to the public to and from the house and its vicinity to Lynchburg; that decedent stepped off of side track on to the main track to avoid a material train, and was killed by a yard engine and tender not visible when he came on to the track, being around a bluff, but was backing rapidly within city limits and against its ordinances in the direction decedent was walking; and that the engineer failed to look out, blow the whistle or give any warning:</p> <p>Held:</p> <p>The defendant’s servant’s negligence was the proximate cause of the killing, and plaintiff is entitle to recover through decedent may not have been entirely free from fault.</p>

M. Blackford, trustee, against Sarah Y. Grimaldi, in her own right and as administratrix of Thomas F. Grimaldi, deceased, Charles B. Wierman, administrator of Daniel Darraugh, deceased, and others. The decree being adverse to Darrauglfs administrator, he obtained an appeal and supersedeas from one of the judges of this court.

<p>Constitution—Licenses—Coupons.—Section 65, ch. 450, Acts of Assembly 1883-4, p. 590, prohibiting sale without a special license, of tax-receivable coupons cut from the bonds of the State of Virginia, is constitutional. Com. v. Maury, 82 Va., 883.</p>

<p>Error to judgment of corporation court of Lynchburg, rendered February 17th, 1887.</p>

<p>Error to judgment of corporation court of Lynchburg, rendered February 18th, 1887.</p>

East, the plaintiff in error, was plaintiff, and George W. Garrett and Eliza E., his wife, the defendants in error, were the defendants. The object of the action was to recover a certain tract of land in said county, mentioned in the fifth clause of the last will of Dr. Southey S. Satchell, and thereby devised to Edward P. East and his legitimate children forever, upon certain conditions in said fifth clause set forth.

Stockton Terry was complainant, and L. ~W. Scoville, non-resident, and A. B. Ferguson and others, garnishees, were defendants. The decree being adverse to Scoville, he appealed to this court.

The object of this action was to recover damages for the refusal of the defendant company to check his trunk to Lynchburg after selling him a ticket as a passenger over its road to said city. Plaintiff gót a verdict for $500. This the defendant moved the court to set aside and grant it a new trial. The court overruled this motion and gave judgment on the verdict. Thereupon the company brought the case by a writ of error to this court.

Conrad was plaintiff, and John Purcell and others, were defendants.

Petition for mandamus to compel board of supervisors of Fauquier county to issue a warrant upon treasurer of said county for $1,250, which sum it is alleged, is due petitioner as his salary as county court judge from March 1st, 1884, to Jan-, uary 1st, 1886.

259, § 5, for selling intoxicating liquor contrary to law. The county court overruled the defendant’s demurrer to the indictment. The jury found him guilty and assessed upon him a fine of $100. The defendant moved to set aside the verdict, which motion the county court overruled, and sentenced him according thereto, adding thirty days’ imprisonment in the county jail. To which ruling defendant excepted and the court certified the evidence.

<p>1. Judicial sales— Confirmation—Affidavits of undervalue— Upset bid.—Whether a sale will he confirmed is a question not of arbitrary, but of sound legal discretion in view of all the circumstances to he exercised in the interest of fairness, prudence and due regard to the rights of all concerned. Brock v. Rice, 27 Gratt., 816; Coles v. Coles, 83 Va., 525. After-stated opinions, affidavits of undervalue, etc., are regarded as of but little value. But a substantial upset bid, well secured and safe, put in before confirmation, is as much a valid bid as if made at the auction, and cannot be disregarded.</p> <p>2. Idem—Appeal—Refusal to suspend decree—When harmless error—J?rom refusal to confirm sale and order for re-sale, any party may appeal, and to refuse suspension of the decree is error, but this court will not reverse the decree for such error when it is right on its merits.</p> <p>3. Idem—Case at bar.—Total debts secured by trust deed on the Gallego Mills property amounted to 8542,146 34. Assessed value of trust property was about $208,000. First and second liens aggregated $248,610 78. A portion of creditors representing the latter liens agreed with T. that he could have the property at $120,000, unless a higher bid came from another quarter. The property was knocked down to T. at that price. Before report of sale was acted upon by the court below, a well secured upset bid of fen per cent, was put in. • That court refused to confirm the sale, and ordered a re-sale.</p> <p>Held :</p> <p>This was not error.</p>

Corprew was complainant and Mary E. Corprew and others were defendants. The court below dismissed the bill on the ground that the will thereby sought to be set aside had been conclusively established by a decree of the same court rendered in a former suit between the same parties. Erorn this decree the said George A. Corprew appealed to this court.

<p>1. Fraudulent conveyances—Suit to annul—Case at bar.—McC. conveyed land to H. and put the deed on record. Creditor at large, under Code 1873, ch. 175, 2, brought suit to annul it as fraudulent. Mc.C. made no appearance. After decree was entered, during same term, H. filed his answer, denying that he had ever claimed any title under the deed:</p> <p>Held: The deed was fraudulent as to creditors of McC. and void, and plaintiff entitled to a lien on said land from the filing of the bill.</p> <p>2. Chancery practice—Decree—Rehearing—New parties—Case at bar.—After term at which decree was entered, persons not hitherto parties to the suit, and who alleged neither error of law in the decree or after discovered evidence, are allowed to file a bill for rehearing the decree:</p> <p>Held:</p> <p>Error, but not reversible error, as the appellant is not aggrieved thereby.</p>

<p>Appeal from decree of circuit court of York county, rendered November 18, 1882, in the suit wherein J. Birkhead and others were complainants and Robert G. Griffin and others were defendants. The decree being adverse to said complainants they appealed here.</p>

248, p. 258, against Duffield Savage for unlawfully selling intoxicating liquors without license, and sentencing him to pay a fine of one hundred dollars, according to the verdict of the jury, and adding thirty days’ imprisonment in the county jail. The defendant’s demurrer to the indictment had been overruled. He moved the county court to set aside the verdict and grant him a new trial.

M. Kirby ■ and others are complainants, and li. M. Kirby and others are defendants. The object of the bill is to impeach the will of Anderson Kirby, deceased, which had been admitted to probate by the couuty court of said county.

Beecher, is complainant, and the appellees, Thomas P. Bagby and H. I. Lewis, trustees, and others, are defendants. 0. Beecher made his note to certain creditors and a trust deed to secure it. Trustee advertised the trust property for sale. 0.

Moss is complainant, and T. 2L. Williams, trustee, and others are defendants. The decree being adverse to the defendants, C. LI. Rucker’s administrators, they appealed to this court.

Johnston, since deceased, by hlewton Switzer, dated July 22d, 1879, and duly recorded in the clerk’s office of Botetourt county court, and whereby W. A. Glasgow, Jr., was substituted as sole trustee in their stead. The defendants brought this case here on writ of error and supersedeas.

<p>1, Railroads—Employees—Negligent injuries—Recovery.—Plaintiff is bound at least to raise a reasonable presumption of negligence on the part of defendant. Then he must recover, unless plaintiff himself was guilty of 'such negligence, as without it, the injury would not have happened; and even then, unless the defendant could not, by the exercise of care, have avoided the consequences of the plaintiff’s negligence. But the employee accepts the service subject to the risks incident to it.</p> <p>2. Idem—Case at bar.—Plaintiff was injured whilst uncoupling a car from standing cars, by a pier engine and coal train running into said cars. When he went in between those cars, he saw the engine stalled on the up-grade and the train only about twenty feet from those cars. He was delayed by a tight pin. The engine gave no warning by bell or whistle, but its exhaust as it climbed the grade could be heard a long way:</p> <p>Held:</p> <p>Plaintiff cannot recover.</p>

Acker is plaintiff and the Alexandria & Fredericksburg railroad company is defendant. During the trial the court gave to the jury an instruction to which the plaintiff excepted. The verdict was for the defendant. The plaintiff moved for a new trial, which being refused, he excepted. The court certitled the evidence, and the case is here upon writ of error.

Holland was complainant, and C. 0. Miller, L. 0. Powell and Louisa, his wife, and 2ÑT. C. Miller, trustee, and others, were defendants. The case is the sequel to the case of Coles v. Withers, 33 Gratt., 186.

<p>Appeal from decree of circuit court of Culpeper county, rendered September 14th, 1886, in a cause wherein George ~W. Bowen, the appellee, is complainant, and Levi Rosenberger, the appellant, is defendant.</p>

Holland and Cora, his wife, (the plaintiffs in error) are plaintiffs, and B. M. Batchelder, (the defendant in ei’ror) is the defendant.

<p>Error to judgment of circuit court of Culpeper county refusing a writ of error to judgment of county court of said county, rendered May 17th, 1886, in an action of unlawful detainer wherein George W. Bowen, the defendant in error, was plaintiff, and Levi Rosenberger, the plaintiff in error, was defendant.</p>

Ayres, administratrix of Eobert H. Ayers, deceased, was plaintiff, and the Eichmond & Danville Eailroad Company was defendant. The, jury assessed plaintiff’s damages at $10,000, subject to the demurrer of the . defendant to the plaintiff’s evidence. On the demurrer the court entered judgment for the defendant, and the plaintiff' excepted, and obtained a writ of error from one of the judges of this court.

<p>Appeal from decree of corporation court of city of Norfolk, rendered June 20th, 1887, in the suit wherein Richard H. Jones and Susan A., his wife (the appellants), are defendants, and W. W. Degge (the appellee), is plaintiff.</p>

<p>1. Public Officers—Judgments—Defalcation—Evidence.—Judgment against public officer on his official bond, is not even prima facie evidence of a “ defalcation.”</p> <p>2. Idem.—Bankruptcy—Discharge.—His liability for failing to collect claims in his hands, is not a “ defalcation” within section 33, bankrupt act of 1867, and is dischargeable by his discharge even after merger into judgment. Boynton v. Ball, 121 U. S., 457.</p>

<p>Petition for writ of prohibition.</p>

<p>Error to judgment of circuit court of Northumberland county, rendered April 28th, 1887, in an action of unlawful detainer, wherein R,. H. Hulany (the defendant in error) was plaintiff, and Thomas B. Hurst (the plaintiff in error) was defendant.</p>

<p>Appeal from decree of circuit court of Fluvanna county, entered April 14th, 1887, dismissing the petition filed by ’William B. Hodgson, trustee, in the suit pending in said court under the styl/ of Perkins’ executor and others against Bowles and othej^PSaid Hodgson obtained an appeal and supersedeas to this'fiourt.</p>

<p>1. Negligent killing—Action for—Instruction.—At trial of an action to recover damages for the negligent killing of the plaintiff’s intestate, after the defendant’s demurrer to the evidence had been joined in by the plaintiff, it was not improper for the trial court to instruct the jury that, if the plaintiff |was entitled at all, she was entitled to the full amount which they "might lawfully give, if there had been no demurrer to the evidence; and that they ought, in its opinion, to find the full amount claimed injthe declaration, that amount not exceeding the amount the law allows to be recovered.</p> <p>2. Idem—Coupling cars—Inexperienced brakeman.—Where at trial of such action it appeared that the brakeman, a minor, on his first trip, was coupling freight cars by the conductor’s order, the latter was so situated that he could not see the opening between the cars, nor the brakeman, so as to give the proper signal to slow up, and thus the brakeman was killed by the cars coming together with great force:</p> <p>Held:</p> <p>The death was caused by the conductor’s negligence, and the defendant company is liable.</p>

D. Evans and others' were complainants, and the appellants, the Potomac Manufacturing Company, the Virginia Iron Ship-building Company, and Charles E. Moody, trustee, were defendants.

<p>Argued at Staunton. Decided at Richmond. Appeal from decree of circuit court of Shenandoah county, rendered January 12th, 1886, in the suit wherein the appellants, Walters’ Sons were complainants, and the appellees, Chichester and another, were defendants.</p>

Cator and others, partners in the name of Armstrong, Cator & Co. and others, were complainants, and Louis Lachman and Mollie, his wife, Lippman Lachman, H. H. Hairston, trustee, M. Harris, and William Harris were defendants. The object of the suit was to annul as fraudulent a trust deed made July 13th, 1886, for the benefit of certain alleged creditors of Mollie Lachman. The court dismissed the hill for want of evidence of the fraud.

It. Mason, administrator of W. R. Mason, deceased, who was executor of A. H. Mason, deceased, was complainant, and R. M. T. Hunter, B. R. Bavid, and J. H. Hunter, trustee in a deed of trust from R. M. T. Hunter and wife, W. Gr. Hewbill, sheriff, administrator of M. R. H. Garnett, deceased, E. P. 0. Lewis and Mary P., his wife, who was Mary P. Garnett, widow of M. R. H. Garnett, deceased, and others were defendants.

, and B. H. Easley, executors of James S. Easley, deceased,, and H. A. Edmnndson, sheriff of said county, and as such receiver in the cause of Pettus5 Administrator against Morgan and others, the appellees here, were defendants.

Verdict was for plaintiff for |3,000 damages. Defendant moved to set aside the verdict as being contrary to the evidence. The court overruled the motion. The defendant excepted, and the court certified all the evidence.

Stuart was plaintiff, and Robert A. Lancaster was defendant. The action was brought upon a protested negotiable note for $5,000, dated July 25, 1881, and payable four months after the date thereof to the order of Henry M. Mathews, at the Bank of Lewisburg, West Virginia.

<p>Appeal from decree of circuit court of Culpeper county, rendered June 3d, 1885, in the chancery suits of T. M. Archer, trustee for J. W. Kelley, against A. L. Ashby, administrator, &c., and T. R. Covington, in his own right and as administrator of A. L. Ashby, deceased, and as administrator of Ann Camp, deceased, against W. T. Ashby, P. P. Ralle, trustee, and others, on the cross-bill filed therein by Thomas W. Jones, who was surety on the bond of said A. L. Ashby as such trustee. The prayer of the cross-bill was denied, and the said T. ~W. Jones appealed.</p>

<p>Petition for writ of prohibition.</p>

Foley, as administratrix of James T. Foley, deceased, and others, were complainants, and Louisa B. Hall, in her own right and as executrix of Decatur B. Hall, deceased, and others, were defendants, hy which decree Robert White-acre, sheriff and administrator c. t. a. of said 33. B. Hall was required to pay unto the administrator of Samuel Rixey, deceased, the sum of $2,097 07, with interest thereon from September 1st, 1882, till paid.

<p>Easements—Right of way—Case at bar.—Vendor granted land having no access save by private way over other land of his. This way was not named in the deed, but he told vendee the law gave him that way as incident to the grant. Later vendor granted a tract lying beyond first vendee’s land, granting the right of way over the same private way, which was used by both vendees. Subsequently vendor’s lands were sold under decree, and purchaser received a deed granting the same right of way:</p> <p>Held :</p> <p>This purchaser cannot close this way against first vendee.</p>

<p>Appeal from decree of corporation court of city of Lynch-burg, rendered April 11th, 1885, in a cause wherein Samuel Patterson, the appellee here, was complainant, and Henry "W". Doyle, the appellant here, was defendant.</p>

<p>Municipal Ordinances—Buildings—Case at bar.—A city ordinance forbids any person to erect any building outside the fire limits and within thirty feet of any building not his own, except of such materials as are allowed for buildings inside said limits. 0. added a story to a house out of prohibited material:</p> <p>Held :</p> <p>He violated the ordinance.</p>

Argued at Staunton. Decided at Richmond. Appeal from decree of circuit court of Amherst county rendered at its April term, 1885, in the cause wherein Henry E. Smith, the appellant, is complainant, and E. A. Waugh and others, the appellees, are defendants.

<p>Post-nuptial settlements—Burden of proof.—Post-nuptial settlements are presumed to be voluntary. The burden of repelling this presumption rests on those claiming under them. If the bill charges them to be voluntary, and the answer denies the charge, such denial is not evidence for respondent, and does not shift the burden of proof, but a valuable consideration moving from the wife must be proved. Code 1878, ch. 114, § 2. Perry v. Ruby, 81 Va., 817.</p>

and others are complainants, and the appellants, 0. Beecher, Jr., trustee, 0. Beecher and Angelina Beecher, his wife, are the defendants.

<p>1. Tkusts—Beneficiaries— Construction—Estoppel.—Trust deed directs trustee to permit wife to “ have free and undisturbed possession and use of the land, taking the rents and profits to her own use during her life,” and after her death to hold the property for benefit of her children. It also authorizes trustee to convert the land into money, “ to be held as aforesaid”:</p> <p>Held :</p> <p>The wife is entitled to only the income though the land has been converted into money. But where the corpus has been turned over to her, she cannot maintain an action against trustee for income after she has expended the corpus.</p> <p>2. Idem—Acquiescence by remainder-man—Proviso.—Remainder-man in such •trust may acquiesce in such turning over of the corpus to life-tenant, and he is bound thereby, unless it appears that at the time thereof he was uneducated, just of age, dependent upon the trustee, and that the trust accounts were uncertain and full knowledge in him of all the circumstances was not clearly shown.</p> <p>3. Idem—Judicious use of corpus—Burden of proof.—Under such trust deed trustee must show that the use of the corpus by' life-tenant is plainly such a judicious use thereof as the court will sanction.</p> <p>4. Idem—Remainder-man may sue.—Under such trust deed where the corpus has been expended by trustee, remainder-man may, whilst life-tenant is living, maintain his suit for the protection of his interest.</p> <p>5. Idem—Staleness.—Under such trust deed whilst life-tenant is living, remainder-man’s interests being contingent, and his right to demand payment of the principal fund not having attached, the objection of staleness will not lie to his claim., Effinger v. Hall, 81 Va., 94.</p>

McGruder, late treasurer of said county, and the defendant in error here, was petitioner, and the board of supervisors of said county, the plaintiff in error here, was the respondent.

D. Payne, administrator c. t. a. of William Muller, deceased, is complainant, and the appellees, George B. Stone, trustee, and others are defendants.

Smith, is complainant, and the appellants, Boyd M. Smith, and Samuel Ii. Wimsatt, partners in business under the style of Smith & Wimsatt, are defendants. This case is sequel to the case under the same style reported in 77 Va., 535, to which reference is made for the history of the controversy. The suit was an attachment in equity in which a decree had been entered in favor of the appellee as such assignee for the entire amount of certain claims against the appellants.

, 1885, on a motion by O. H. Ingles, treasurer of Henry county, upon the official bond of R,. 0. Griggs, deputy treasurer of said county, against the said deputy and 0. M. Stultz and others, his sureties. The jury found a verdict against the defendants for the penalty of said bond to be discharged by $978 55, with interest from July 1st, 1879, until paid, and the court overruling their motion for a new trial, entered judgment in accordance with the verdict.

<p>1. ’Wins—Construction—Estate—Case at bar.—Testator gave all bis estate, except his lands and certain furniture, in certain shares to certain legatees, and in case of death of any and their children without heirs of their bodies, their shares to revert to the survivors, and gave all yearly interest and dividends on certain stocks and bonds, to said legatees, and closed with the words: “ When my estate must, under the laws of Virginia, and of this my will, be closed, I wish all to be divided as I herein and hereby provide for the division of my estate in the meantime</p> <p>Held :</p> <p>To the said legatees is given an absolute interest in all the property save as accepted.</p> <p>2. Idem—Distribution—Equalization—Case at bar.—By consent decree certain uncollected assets were d; ided in kind according to a scheme in master’s report. Later, certain uebts not embraced in that scheme, -were collected and distributed by the court, regard being had to losses under first distribution, so as to equalize the shares: held, Proper; equality is equity.</p>

Booker and others were defendants. Joseph H. Eggleton, one of the defendants, being aggrieved by the decree, obtained an appeal and supersedeas from one of the judges of this court.

<p>Error to judgment of corporation court of city of Lynch-burg rendered June 30th, 1885, in an action at law wherein Louisa Davis was plaintiff, and the city of Lynchburg was defendant. The judgment being against the plaintiff, she brought up the case on writ of error and supersedeas.</p>

<p>Error to judgment, of corporation court of the city of Dan-ville, rendered April 21st, 1887, in an action of debt on a bond wherein John P. Pace, administrator of G-. T. Pace, deceased, suing for the benefit of James It. McCully, administrator of Charles Lucas, deceased, the defendant in error, was plaintiff1, and Harcissa Hodnett, administratrix of M. B. Hodnett, deceased, the plaintiff in error, was the defendant.</p>

, and ~W. 0. Sydnor, were complainants, and P. M. Sutherland, in his own right and as executor of Pendall M. Sutherland, deceased, and others, were defendants. The object was to construe the testator’s will. The construction being unfavorable to the defendants, they appealed from the decree.

<p>1. Libel and slander—Insulting words—Justification—Privilege.—Code 1873, ch. 177,150, and the rule as to privileged communications, apply as well to actions under Code 1873, ch. 145, $ 2, for insulting words, as to common law actions of libel and slander.</p> <p>2. Idem—Privileged communications—Province of jury.—Where in action for defamation the defence is that of privileged communication, the question for the jury is, whether defendant honestly believed the language used to be true, and published it without malice, in fair self-defence, or in the reasonable protection of his own interests. And if plaintiff failed to prove actual malice, defendant is entitled to a verdict, whether the language used was true or false, unless defendant overstepped the line of legitimate defence and became an aggressor.</p> <p>3. Court oe appeals—Trial court—Reversal—Second trial.—Where on appeal a new trial has been granted, it is the duty of the 'circuit court, at the second trial, to adopt the views set forth by this court in its opinion, and instruct the jury in accordance therewith, provided the facts are the same and the instructions are asked for.</p>

Subsequently A. M. Messick, widow of Wm. Lawson, John R. Lawson, W. A. Lawson, Thomas J. Rowe, and Elizabeth A., his wife, were admitted as defendants. The object of the action was to recover a parcel of land described in the declaration as “ situate in the district of Poquosin in York county, containing two acres, more or less, hounded on the north by a line drawn through the centre of a dyke dividing the same from the land of Wm.

Barker, his wife, (the appellant), were complainants, and John Jenkins and Harriet Jenkins, (the appellee), were defendants. The object of the suit was to partition the real estate of the intestate, W. B. Jenkins, between his two heirs, the female complainant and the male defendant, and to assign dower to his widow, Harriet Jenkins.

<p>Error to judgment, of circuit court of city of Lynchburg, rendered May 19th, 1887, in an action of ejectment wherein the defendant in error, J. 8. Diggs, was plaintiff, and the plaintiff in error, Fauntleroy Murrell, was defendant.</p>

S. Sherwood and others, the committee for the management,of the Norfolk county ferries, and others, were complainants, and the appellants, George ~W. Black, collector of the city of Nor-r folk, and others were defendants.

Hamner and others were defendants. The defendants demurred to the bill and pleaded the statute of limitations to which plea the complainant replied specially. Hpon hearing, the court dismissed the bill at the complainant’s costs, and he appealed to this court.

D. Brengle was plaintiff, and Green & Miller, attorneys-at-law,, were defendants. The demurrer to the declaration was overruled. The verdict was for plaintiff. The court overruled defendant’s motion to set aside the verdict and entered judgment on the verdict. The defendants excepted and the evidence being certified, they brought the case here by writ of error and supersedeas.

<p>Error to judgment of circuit court of Danville, rendered January 22d, 1887, in an action of trespass on the case wherein J. J. Hill is plaintiff, and Thomas J. Lee is defendant. The object of the action is to recover damages for an alleged wrongful discharge of the plaintiff by the defendant, who had employed him for a year at $100 a month. Verdict was for plaintiff for $800 damages. Defendant moved to set aside the verdict as contrary to the law and evidence, and because of the admission of illegal evidence, etc. The court overruled the motion and entered judgment according to the verdict. To this ruling the defendant excepted, and the evidence being certified, brought the case here on error and supersedeas.</p>

<p>Error to judgment of corporation court of city of Mrfolk, rendered October 7th, 1884, in an action of trespass on the case wherein JohnB. Branham was plaintiff, and H. B. Mchols was defendant. The object was to recover damages for fees of office received by Mchols which Branham claimed. The demurrer to the declaration was overruled. The verdict was for plaintiff. The court overruled defendant’s motion to set aside the verdict, and entered judgment in accordance with it. To this ruling the defendant excepted, and the evidence being certified, brought the case here on writ of error and supersedeas.</p>

<p>1. Criminal Proceedings-—“Boycotting.”—The essential idea of “boycoting ” is a confederation, generally secret, of many persons whose intent is to injure another, by preventing any and all persons from doing business with him through fear of incurring the displeasure, persecution and vengeance of the conspirators.</p> <p>2. Idem—Indictment.—-Indictment charging a criminal conspiracy and alleging that defendant and others did unlawfully and maliciously, &c., conspire, &c., to injure, &c., certain persons in their business by unlawfully, &c., making threats to a great number of their customers, and that by said threats and unlawful acts the business of such persons was greatly injured, is sufficient; the particular means employed need not be alleged.</p> <p>3. Idem—Evidence—Case at bar.—At trial of indictment for conspiracy “to boycott,” the evidence (see opinion) held, sufficient to warrant the verdict of guilty.</p> <p>4. Idem—Instructions.—At trial for criminal conspiracy an instruction is proper that “ if the jury believe from the evidence that defendant agreed with one or more to coerce B. to discharge, against B.’s will, certain of his employees, and to employ certain others whom B. did not wish to employ, that such agreement is unlawful; and that if in pursuance of such agreement defendant threatened any of B.’s customers, they, (the defendant and others), would injure the business of such customers by intimidating their customers, and making them afraid to continue their patronage of the customers of B., then the jury must find the defendant-guilty.</p>

Green, as administrator d. b. n., with the will annexed, of Frances M. Lewis, deceased, was defendant.