Volume 85 — Virginia Reports

P. Gresham, to the judge of said court, praying for a writ of prohibition to a judgment of the county court of said county, which petition was denied. Opinion states the case.

The object was to recover of the defendant the sum of $1,500— that being thirty per cent, upon the subscription by him for fifty shares of the stock of said company—a corporation chartered and organized under the laws of Virginia. To the declaration there was a demurrer, which was overruled; whereupon the defendant pleaded the general issue and fifteen special pleas. During the trial there were several bills of exceptions taken by the defendant to the rulings of the court.

<p>Appeal from three decrees of circuit court of James City-county, and of city of Williamsburg, rendered, respectively, December 16th, 1881, November 9th, 1882, and March 9th, 1886, in a chancery cause wherein Elizabeth Macauley’s administrator, Robert A. Bright, was complainant, and Thomas Griffin, Thomas Nelson, and the Dismal Swamp Land Company, were defendants. The hill was for rents and profits as dower by Elizabeth Macauley, filed in November, 1829. She having died in 1880, and her executor, Robert Anderson, prosecuted the suit, and in 1833 filed an amended bill. In 1844 a decree for an account was entered. Testimony was taken by the master, who filed a report in October, 1844. The report was recommitted. The master died. Another commissioner was appointed. He made no report. The executor died in 1859. Nothing further was done until 1881. The records of the court were destroyed during the war, save papers in hands of counsel. In 1881 Kobert A. Bright, administrator de bonis non of Elizabeth Macauley, had the cause reinstated upon the docket, from which it had been dropped for some cause not appearing from the record. On November 9th, 1882, a master was directed to settle the accounts, as ordered by a former decree. His report, filed in May, 1884, was excepted to by the defendants. The exceptions ■were overruled. By the decree of March 9th, 1886, the defendants were ordered to pay the plaintiff the sum of $19,600.09, with interest on $12,676.80 from February 1st, 1830. From these three decrees the defendants appeal to this court. Opinion states the case.</p>

Oarr, deceased, to rehear and reverse the decree exempting Joseph W. Morris, receiver, from liability for the loss of certain trust money he had been ordered to lend out on specified terms, and to allow him to resign the receivership. The circuit court refused to rehear the decree, and the said administrator appealed to this court. Opinion states the facts.

The bill was by two of the children of Henry Seibel, deceased, against their mother, Mary, and Frederick W. Bapp, her husband, and their brother, Philip Seibel, and his wife, Ellen, to have partition, or for sale and distribution of the proceeds among those entitled, of certain real estate, which belonged to Henry Seibel, deceased.

<p>1. Appellate Jurisdiction'&emdash;Minimum&emdash;How determined.&emdash;Jurisdiction as to appeals in matters merely pecuniary, being constitutionally limited to $500, the amount is determined by amount of plaintiffs’ claim, or by amount to be paid by defendant to discharge himself, as the one or the other may be the appellant.</p> <p>2. Idem&emdash;Fraudulent deeds&emdash;Jurisdictional test.&emdash;In suits to set aside fraudulent deeds and subject the property therein to satisfy a debt, it is the amount of the debt, and not the value of the property, which determines the appellate jurisdiction.</p>

<p>1. Res Judicata&emdash;Married women parties.&emdash;All questions involved in an appeal are finally adjudicated, whether distinctly raised and passed on below and here, or not; and a married woman, when she is a party, is bound by the proceedings in court.</p> <p>2. Idem&emdash;Case at bar.&emdash;Husband filed his bill to enjoin sale of land conveyed in trust by himself and wife. Later, the circuit court decreed that wife be made a party. She attempted to unite in the amended bill as co-plaintiff by suing by her next friend ; but the court decided that she should sue simply as a co-plaintiff with her husband. From this decision she did not appeal. But from the final decree the defen- . dant did appeal, and the decree was reversed. Thereupon, she, by her next friend, filed her bill for an injunction to the sale of said land on the same ground which had been set up in the former bill;</p> <p>Held :</p> <p>She was a party jointly with her husband in the former suit; and, though a married woman, she is bound by the final decree of this court therein; and the matters set forth in the second bill were res judicata.</p>

<p>1. Fraudulent Conveyances&emdash; Wife&emdash;Children.&emdash;Personal property was . bequeathed to a married woman and her children. Husband sold the property and used the proceeds. Afterwards he conveyed his land in trust for his wife and children.</p> <p>Held :</p> <p>The property was bequeathed to the wife and her children jointly. He became invested with her interest jure mariti, so that, as to her, his conveyance was voluntary. But as to the children, the conveyance was based on a valuable consideration, and must stand as a security to them.</p> <p>2. Idem&emdash;Suits to annul&emdash;Creditors' rights.&emdash;-In creditors’ suit to reach debtor’s property, conveyed by him in trust for his wife and children, where the deed is on valuable consideration quoad the children only, the lan^d should be decreed to be sold after the widow’s dower in it has been assigned, and the proceeds applied, first, to pay the children’s claims, and, secondly, to satisfy the debts.</p> <p>3. Idem&emdash;Principal and surety.&emdash;In such suit where the conveyance is as aforesaid, a creditor holding the grantor as surety on a note must apply thereto any available property of the principal, he being a party defendant, in relief of the land conveyed, so far as it can be done without too much delay.</p> <p>4. Idem&emdash;Post-nuptial settlements&emdash;Burden of proof .&emdash;-It is well settled that a post-nuptial settlement is presumed to be voluntary and void, and to be upheld when assailed by creditors, must be supported by proof independent of the answers of those claiming under the settlement.</p>

<p>Appellate Jurisdiction&emdash;Minimum.&emdash;Where the decree is for less than $500, including interest, the appeal must be dismissed for want of jurisdiction, though the decree provides that certain land be sold unless the debt be paid within a named period.</p>

<p>Appeal from decrees of chancery court of city of Richmond, rendered June 18th and 27th, 1885, and April 15th, 1886, respectively, in the attachment suit in equity wherein James H. Young was plaintiff, and Jeremiah Steelman (non-resident) and W. L. Porter and others, resident debtors of said Steelman, and garnishees, two of whom resided in the city of Richmond where the attachment was sued out, were defendants, whilst a tract of land attached as the property of said Steelman lay in Chesterfield county. In October, 1881, Porter contracted to deliver cord-wood to Steelman, who was to advance him money. In July, 1883, Steelman assigned this contract and the money due him on advancements to James H. Young, the plaintiff. The bill prayed for a discovery of the advancements by Steelman and of the state of accounts between him and Porter and the other garnishee defendants. The suit was, however, afterwards dismissed as to all of the latter except Porter, who demurred to the bill on the ground that such a contract was not assignable, and that the rights acquired by Steelman thereunder and assigned to Young were not such “debts” or “estate” as, under the statute, were the subject of attachment; and that the bill was multifarious in tbat he (Porter) could know nothing of the liability of Steelman to the plaintiff, or of the other defendants to Steelman, and that his (Porter’s) defence should not be prejudiced or complicated by reason of Steelman’s transactions with others. He also pleaded to the jurisdiction of the court; that Steelman had made other and conflicting assignments of the same debts ; that he (Porter) was liable to be sued by said several assignees; that there was another contract between respondent and Steelman which should be filed with the bill for his better understanding of the claim of the plaintiff. In fact, he, in his answer, set up new and affirmative matter whereon he rested his defence, and which it was incumbent on him to sustain by proof. The court overruled the demurrer, denied the motion to dismiss the bill, and ordered the cause be referred to a master, whose report showed Porter to be indebted to Steelman in the sum of $1,390.06, with interest. The report, founded on the testimony of witnesses, which was conflicting, was confirmed; and it was decreed that tbe plaintiff, Young, recover that sum of the said Porter, who appealed from the decree to this court.</p>

Marrow and Mary E., his wife, and two others were plaintiffs, and Joseph B. Brinkley and others were defendants. The court, hy the said decree, having dismissed the bill of the plaintiffs, they obtained an appeal to this court. Opinion states the facts.

<p>1. Parol Contracts&emdash;Default of another'■&emdash;Sureties.&emdash;Under § 1, ch. 140, Code 1873, “a promise to answer for a debt, default, or misdoings of another,” must be in writing in order to be enforceable by action.</p> <p>2. Idem&emdash;Official bond&emdash;Defaults&emdash;Case at bar.&emdash;A sheriff executed 'his official bond with two sureties, the former of whom was induced to become such surety by the parol promise of the latter that he would indemnify him against any loss resulting from his suretyship. The promisee had to pay a sum of money by reason of the suretyship. Thereupon he sued the promisor to recover said sum. The latter, in his defence, set up the first section of the statute of parol contracts ;</p> <p>Held :</p> <p>No action lies on said parol promise, and promisee can recover of his promisor only his aliquot part, as co-surety, of the loss by default of their principal.</p>

, was complainant, and Abram Staples’ executors were defendants, in which John Staples was a petitioner seeking to enforce an alleged judgment against said executors. Decree being adverse to the executors, they appealed. Opinion states the case.

<p>Appeal from decree of circuit court of Smythe county, rendered July 12th, 1886, in an injunction cause wherein Martha A. E. Cole was complainant, and George. W. Hubble was defendant. The decree being adverse to the defendant, he obtained an appeal and supersedeas from one of the judges of this court. Opinion states the case.</p>

The judgment of the court was for the plaintiff, and the defendant applied for and obtained from one of the judges of this court a writ of error and supersedeas. The opinion fully states the case.

B. Aston, administrator of A. W. Aston, deceased, against H. S. Preston, S. N. Honaker, and the Bank of Abingdon, and in five other suits by separate judgment creditors of said Preston against said Preston, which were heard together. The decree being adverse to said Preston, he obtained an appeal to this court. Opinion states the case.

Gillenwaters and others v. W. K. Heishell’s Administrator and others. The decree being adverse to the defendants, Wyndham Robertson, one of the sureties of the said administrator and others, appealed. Opinion states the case.

The indictment charges that the defendants, Prather and Sparks, on the 7th of March. 1887, in the night-time of the said day, a certain mill-house, not adjoining to or occupied with the dwelling-house of John H. Payne, situate in the said county, feloniously did break and enter, with intent the goods and chattels of the said .Payne, in the said mill-house then and there being, feloniously to steal, take, and carry away; and one-half bushel of meal and one bushel of chop, of…

Exceptions being taken to various rulings of the court at the trial, the prisoner brought the case here upon writ of error and supersedeas. Opinion states the case.

S. Bruce (appellee here) was complainant, and R. R. Moore (appellant here) and others were defendants, in which suit, also, J. A. Davis filed his petition. Opinion states the case.

M. Brown and others were plaintiffs, and Thomas Hall was defendant.

B. Johnson and others v. W. W. McGee and others, and other causes heard together therewith. The decree being adverse to the claims of J. Q. McGee and Thomas T. McGee set up by cross-bill, they obtained an appeal to this court. Opinion states the case.

<p>Error to judgment of circuit court of Smyth county, rendered April 24th, 1886, in an action on a bond for $2,250, executed by M. B. Tate and John W. Robinson, payable to Gr. Burton Sanders and by him assigned to Sarah A. Perkins, the wife of John E. Perkins, in which action said Sarah A. Perkins as such assignee and her said husband, joined with her by way of conformity, were plaintiffs, and said obligors were defendants. The latter filed a demurrer to the declaration, which being overruled, judgment was entered for the plaintiff, Mrs. Perkins. And the defendants obtained to said judgment a writ of error and supersedeas. Opinion states the case.</p>

<p>Appeal from decree of circuit court of Carroll county, rendered October 17th, 1885, dissolving an injunction awarded by county judge of said county in vacation, upon a bill in chancery, wherein Mary Ann Spencer, by her next friend, was plaintiff, and J. D. Jones and others were defendants. Opinion states the case.</p>

<p>Appeal from decree of circuit court of Washington county, rendered February 22d, 1887, in a chancery suit wherein Jonathan T. Hanby’s administrator was complainant, and James Henritze’s administrator and others were defendants. The object was a re-assignment of homestead and a sale of the reversion. Decree being for defendant, "complainant appealed. Opinion states the case.</p>

<p>1. Receivers&emdash; Title to fund&emdash; Case for appointing&emdash;Adm’rd. b. n.&emdash;Appointment of receiver does not affect title to fund which is still regarded as in custodia legis. When administrator has been removed and estate committed to sheriff as administrator d. b. n., and unadministered assets are insufficient to pay debts, and to pay same that fund must be drawn upon to some unknown extent;</p> <p>Held :</p> <p>It is proper not to pay that fund at once to distributees, but to appoint receiver to hold same for protection of sureties, creditors and distributees, especially as administrator d. b. n. cannot sue his predecessor for assets wasted or converted. Wernick v. Me Mur do, 5 Rand. 51; Hinton v. Bland, 77 Va. 595; \ 2648, Code 1887.</p> <p>2. Personal Representatives&emdash;Sureties&emdash;Liability.&emdash;Sureties are liable for devastavit of administrator, when he receives other things than money in discharge of debts due decedent and fails to account for the same as if he had received the money.</p> <p>3. Idem&emdash;Barred debts&emdash;Debts collected or assumed.&emdash;When evidence shows that administrator collected, or assumed to pay. debts due decedent, he and his sureties are liable, though the debts may have been barred by statute of limitations when he qualified. .</p> <p>4. Bill of Review&emdash;After-discovered evidence.&emdash;When bill of review, unsupported by affidavit, is asked to be filed on ground that since the decree defendants (sureties for defaulting administrator) had discovered (as they could not have done before) that certain property was bound for a debt, for his failure to collect which they were decreed against, and leave to file same was refused. On appeal&emdash;</p> <p>Held :</p> <p>No error, because evidence immaterial and bill unsupported. Hatcher v. Hatcher, 77 Va. 600.</p>

<p>Appeal from decrees of circuit court of Wythe county, rendered at its March and September terms, respectively, in the chancery suit of W. J. Davis, plaintiff, against Floyd Robinson and others, trustees of the Franklin Street Methodist Episcopal Church of Wytheville, defendants.</p> <p>This was a suit to enforce a mechanic’s lien on a certain church building and the lot of land upon which it stands, in the town of Wytheville. The bill alleges that the complainant is by trade a contractor and brick-mason, and that in July, 1884, he entered into a written contract with the defendants to furnish materials and ,'to build the church (that is, to do the necessary brick-work), upon certain specified terms. It also alleges that the work was completed on the 20th of August, 1885, and that within ninety days thereafter the complainant filed ■ his mechanic’s lien in the clerk’s office of the county court of Wythe county in conformity with the provisions of the statute. The balance claimed to be due in the bill is $634.24, for the satisfaction of which a sale of the property is prayed for.</p> <p>The defendants, the trustees of the church, demurred to the bill, and also answered, and the cause was referred to a master commissioner for inquiry and report as to the matters in controversy. Upon the coming in of the report, to which there was do exception, the circuit court decreed in favor of the complainant for $550, and directed a sale of the church and lot, unless payment of the sum decreed should be made within sixty days from the date of the decree. From this decree the defendants have, appealed.</p>

H. Alexander is complainant, and H. B. Howe, and J. O. Wysor, trustee, are defendants. The decree being adverse to Alexander, .lie appealed. Opinion states the case.

Tate and ais. v. Thomas M. Tate’s Ex’ors; Y. S. Morgan v. John B. Tate’s Adm’r and others; A. H. Tate and ais. v. Thomas M. Tate’s Ex’ors and others, and M. B. Tate v. A. H. Tate, adm’r, and others, heard together, by which decree M. B. Tate was allowed and directed to be paid (amongst other claims) against L. H. Tate’s estate, a bond for $3,000, dated March 24th, 1860, due November 24th, 1860, with credit endorsed thereon as of June 29th, 1863, for “$1,678.30, Confederate…

<p>Eiror to judgment of circuit court of Wythe county, rendered March 13th, 1886, in an action on the case wherein L. S. Irvine was plaintiff and the Norfolk & Western Railroad Company was defendant. Verdict and judgment being for plaintiff for $500, and the defendant company having excepted to several rulings *f the circuit court during the trial, and having moved the coui’t to set aside the verdict and grant it a new trial, and excepted to the judgment of the court overruling the motion? and the court having certified all the evidence in the case, the said company brought the case on writ of error to this court. Opinion states the case.</p>

At the hearing the injunction, which had been awarded on the prayer of the complainants, was dissolved and their bill dismissed with costs, and they appealed. Opinion states the case.

Peirce, and Isaac, David, Martha, and James Peirce, the last four being infants suing by their next friend, were complainants, and M. P. Tate, James S. Crockett, John W. Robinson, D. P. Graham, R. C. Hoffman, James Moore, The Poster Palls Mining and Manufacturing Company, and W. O. Bullitt, were defendants. By said decree the said circuit court dismissed the plaintiffs' bill and adjudged the costs against them. Opinion states the case.

<p>1. Married Women—Contracts at common law.— It is a familiar rule of the common law that a married woman has no power to contract, and that her contracts are void. This incápacity is still the general rule.</p> <p>2. Idem—Separate estate—Contracts in equity.—The separate estate held by a married woman at the time of her contract is in equity bound for all debts expressly or impliedly charged thereon by her; but separate estate afterwards acquired by her is not so bound.</p> <p>3. Idem—Married woman's act—Contracts under.—By this act a married woman, if joined by her husband, has power to contract in relation to, or for the disposal of, her separate estate created by said act, and she may sue and be sued as a femme sole. But this act does not empower her to contract unless her husband joins her (except as to property acquired by her as a sole trader), or so as to bind the separate estate she may acquire after the time of the contract. Acts 1876-77, pp. 333-4.</p> <p>4. Idem—Case at bar.—In 1879 a married woman gave her note for merchandise. Afterwards she acquired lands, and suit was instituted to subject them to pay-the note.</p> <p>Held:</p> <p>The lands are not liable for the note.</p>

<p>Appeal from decree of circuit court of Wythe county, entered March 9th, 188*1, in the causes of Daniel Hillenberg against D. H. P. Scott and als., and of D. H. P. Scott and als. against Adam Hillenberg, heard together. Scott appealed. Opinion states the case.</p>

W. S. Saunders and Rachel Y., his wife, and John E. Perkins and Sarah R., his wife, against James S. Greever, administrator in his own right and as administrator of Hiram A. Greever, deceased.

<p>Error- to judgment of circuit court of Pulaski county, rendered March 26th, 1888, in an action of trespass on the case for damages for negligently destroying fruit trees by the defendant, wherein R. D. Bohannon and Ellen J., his wife, were plaintiffs, and the Norfolk & Western Railroad Company was defendant-At the trial defendant filed exceptions to the circuit court’s rulings in refusing and in giving instructions, and in overruling its demurrer to the evidence and its motion to set aside the verdict and award a new trial. Verdict and judgment for plaintiffs for $810. Defendant has the case here on writ of error and supersedeas. Opinion states the case.</p>

Ewald, the purchaser of the land at a sale thereof made and reported, under a former decree in the said suit, and Mrs. V. Crockett, who, before the confirmation of said sale, offered an advance bid, and was allowed time to perfect the same. Opinion states the case.

<p>Railroads&emdash;Condemnation of land&emdash;Damages&emdash;Fences.&emdash;Where, in proceedings to condemn lands for railroad purposes, commissioners assess the damages and designate a named sum as having been allowed for fencing on either side of the road-bed, upon exceptions by the company to the report;</p> <p>Held:</p> <p>The company have not the option of fencing the road-bed or suffer- , ing the penalty; and the assessment of damages allowing for the cost of fencing, is proper and binding. Acts 1883-84, ch. 524, ? 6.</p>

H. Smith, deceased, was plaintiff, and the South West Improvement Company was defendant. This action was for the recovery of damages for the negligent killing of the plaintiff’s intestate, a boy under fourteen years of age, by the defendant company, in whose employment he was at the time of the accident. At the trial there was a demurrer to the declaration, which was overruled.

T. Fishburne and Callie T., his wife, against Isham M. Ferguson’s heirs, for specific performance of a parol agreement made by him, whereby he agreed to convey to them certain real and personal estate. From the decree dismissing the bill Fishburne and wife appealed. Opinion states the case.

J. McOamant and Ellen, his wife, are complainants, and Robert Nuckolls and Lucinda, his wife, F. L. Hale and Nannie, his wife, E. T. Kirby and Mary A., his wife, W. E. Perkins and Lucy, his wife, and' Jackson Higgins, curator of the estate of Jane D. Hale, deceased, were defendants.

Heldreth and wife v. D. S. Peirce and others, in the three first-named causes to review and reverse a former decree therein. Said decrees being adverse to Heldreth and wife, they appealed. Opinion states the case.

<p>Appeal from decree of circuit court of Pulaski county, entered at its March term, 1886, in the chancery cause wherein James O. Alexander and Sue J., his wife, were complainants, and H. Alexander, J. B. Alexander, M. J. Alexander, and J. O. Alexander, the last four trading as partners under the name of J. B. Alexander & Go., were defendants. The decree being unfavorable to them, the complainants obtained an appeal. Opinion states the case.</p>

Pitzer was complainant, and B. H. Logan was defendant, by which the injunction, awarded to Pitzer to the sale of land which had been advertised by Logan as substituted trustee in a trust deed executed by Pitzer, was dissolved. Pitzer appealed. Opinion states the case.

T. Paxton is complainant, and Wm. Stuart, J. W. Stuart, O. B. Thomas, A. Gr. Stalnuher, W. W. Rich, D. A. Snow and John S. Henderson, late sheriff and administrator of P. M. Paxton, deceased, are defendants. The decree being unfavorable to J. T. Paxton and said administrator, they appealed. Opinion states the case.

<p>Appeal from decree of circuit court of Montgomery county, rendered at its May term, 1886, in a chancery cause of R. M. Craig’s Administrator against W. A. Stone’s Executor and others. In that suit W. M. Coleman filed his petition setting up a debt against W. E. Stone as principal and W. A. Stone as surety. The decree being adverse to petitioner, he appealed. Opinion states the case. Argued at Wytheville, decided at Staunton.</p>

Keagy, Mary S. Keagy, and James S. Kent were complainants, and David E. Trout, his wife, Sarah C. Trout, L. C. Hans- ' hrough, trustee, Henry B. Trout, W. W. Brand, W. L. Brand, trustee, S. W. Jameson, trustee, Henry S. Trout, Roanoke Trust, Loan and Safe Deposit Company and others were defendants. The object of the suit was to set aside five deeds of trust which were executed at various times by the defendant, David E. Trout, and admitted to record in July, 1886.

<p>1. Principal and Surety—Repayment to surety.—Insolvent ba'nk holds judgments against principal and surety, and deposits of surety, on which it pays 60 per cent., but which third party had contracted to take at par. Surety pays judgments with his deposits, under agreement with principal to repay the face value of the deposits so used ;</p> <p>Held :</p> <p>Surety is entitled to receive face value of the deposits ; though the general rule is that if surety discharges the debt for less than its full amount, he can only claim against principal the sum paid. Kendrick v. Forney, 22 Gratt. 748.</p> <p>2. Idem—Nudum pactum.—Bank refused to transfer surety’s deposits to contractor for purchase thereof until the judgments were paid;</p> <p>Held:</p> <p>This fact does not make principal’s agreement to repay the amount at its face value, without consideration.</p> <p>3. Idem—Deposits as set-off.—In determining value of deposits to surety, whether or not deposits transferred by him were a valid set-off in hands ' of transferee against latter’s indebtedness to the. bank;</p> <p>Held :</p> <p>To be immaterial.</p> <p>4. Idem—Assignment to surety.—Where surety pays part of such judgment with his deposits, principal, compromising balance, may have the judgment assigned to surety for fifty cents on the dollar of the amount paid by him, though the bank pays less dividend.</p> <p>5. Idem—Usury.—Such agreement between surety and principal; Held not to be usurious.</p> <p>6. Chancery Practice—Fraud—Decree conforms to the bill.—Bill not charging fraud and specifying wherein it consists, no relief based on fraud can be had. But if that were not so, even if principal had not been told that bank had required payment of the judgments out of the deposits;</p> <p>Held:</p> <p>That fact would not render the agreement fraudulent.</p> <p>7. Principal and Surety—Protection of surety —Qucere. —Where all parties are before the court and their liabilities ascertained, a decree will be made in the first instance against principal, where that can be done without delay or injury to creditor: yet qucere whether or not creditor with surety’s money or its equivalent in his hands will be compelled, without resorting thereto, first to exhaust his remedies against principal.</p>

0. Hartsook, administrator of D. J. Hartsook, deceased, and 0. T. Smith as sheriff-administrator of William 0. Roberts, deceased, in the chancery cause of Farrow against Crawford and others. A plea of the statute of limitations, filed by the defendants to the amended bill, being sustained and the bill dismissed, the plaintiffs therein appealed. Opinion states the case.

Jordan and others to a decree of the court pronounced October 3d, 1884, in the cause of V. H. Cunningham and others against W. P. Jordan and others. The decree refused to grant the prayer of the bill, and to review and reverse the decree of October 3d, 1884, and James M. Jordan appealed.

<p>Appeal from decree of circuit court of Amherst county, en- • tered at special term, August 9th, 1888, in cause of Frederick Fowler against Israel Mosher, S. J. Hess and others, deciding demurrer to bill and dissolving injunction without consent of the parties.</p>

In May, 1885, A. J. Blakemore filed his petition in this suit, wherein he set up a claim against the estate.

<p>1. Alien Heirs—Alien ancestor—No bar.—By Code 1873, ch. 119, § 4, it is provided that in making title by descent, it shall be no bar to a party that any ancestor (whether dead or living), through whom he derives his descent from the intestate, is or.hath been an alien.</p> <p>2. Naturalized Citizen— Citizens of another State—Rights and privileges.—A naturalized citizen of U. S., or a native citizen of another State, is entitled to all the rights and privileges of a citizen of this State. Com’lh v. Towles, 5 Leigh, 806.</p> <p>3. Parol Contracts—Ante-nuptial.—-By cl. 5, jí 1, ch. 140, Code 1873, it is provided that no action shall be brought upon any agreement made upon consideration of marriage, unless the agreement be in writing, signed by the party to be charged thereby or his agent;</p> <p>Held :</p> <p>This section embraces ante-nuptial contracts.</p> <p>4. Resulting Trusts—Husband and wife—Case at bar.—Previous to the married woman’s act (April 4th, 1877), where a woman, having money not settled to her separate use, marries, and husband purchases with it real estate, and takes conveyance in his own name;</p> <p>Held :</p> <p>No trust results in wife’s favor.</p> <p>5. Dower—Mansion and curtilage—Adverse possession—Statute of limitations— Case at bar.—By § 8, ch. 106, Code 1873 (Code 1887, \ 2274), widow being entitled to hold mansion and curtilage until dower assigned;</p> <p>Held :</p> <p>Her possession, not being adverse, will not in law be so deemed, and statute of limitations will not begin to run until such possession ends, or she publishes her claim and her possession to be adverse and hostile by actual and open disseisin.</p> <p>6. Laches.—Parties being ignorant of their rights cannot be charged with laches. Lamar v. Hale, 79 Va. 143.</p>

Argued at Staunton, decided at Richmond. Appeal from decrees of circuit court of Frederick county, rendered at March term, 1886, June term, 188?, and in vacation July 29th, 188?, in the creditors’ suit therein pending under the style of Welsh v. Solenberger and others. The said decrees being adverse to the complainants, they obtained an appeal and supersedeas. Opinion states the case.

<p>1. Bona fide Possessors—Improvements—Compensation.—The Virginia statute, altering the common law rule, allows, as a set-off to the plaintiff’s claim for rent and damages, compensation for permanent improvements made by defendant at a time when there was reason to believe the title good under which he was holding the premises, not exceeding, however, the increase of value to the same.</p> <p>2. Idem—Case at bar.—The evidence certified here, considered under the rule pertaining to a demurrer to the evidence, shows that the increased value of the premises did not exceed the rental value thereof for five years before the eviction.</p>

<p>Deeds—Acknowledgment—Record.—Where record of county court shows that “at a court held for A. county on 4th February, 186V, this deed was produced into court and, being duly acknowledged according to law, was thereupon ordered to be recorded ” ;</p> <p>Held:</p> <p>Sufficient proof of valid recordation. Code 1860, ch. 121, § 2.</p>

<p>Argued at Staunton, decided at Bichmond. Appeal from decree of circuit court of Bocbingham county, rendered October 12th, 1887, in the proceedings had therein for the admission to probate of the instrument hereinafter set forth as the last will and testament of Hiram Coffman, deceased, and to determine its true construction and effect. The question below was, whether the instrument was the true last will and testament of the decedent. The circuit court decided that it was, whereupon William H. Coffman, the contestant, obtained an appeal to this court. The instrument in controversy is as follows :</p> <p>“ I, Hiram Coffman, of Bocbingham county and State of Virginia, do mabe and ordain this to be my last will and testament, hereby revobing all other wills heretofore by me made. It is my will that my son, William H. Coffman, be excluded from all of my estate at my death, and have no heirship in the same, he having become the heir to his mother’s interest in her father’s estate; and I, his guardian, have paid him, and am now about to make a final settlement with him, which will make as much to him, and probably more, than my estate will pay to each of my other legal heirs.</p> <p>“ In witness of this being my last will and testament, I hereunto set my hand and annex my seal this the 10th day of March, 1877.</p> <p>“Hiram Coeeman [Seal.]”</p>

Argued at Staunton, decided at Richmond. Appeal from decree of circuit court of Amherst county, rendered April 12th, 1885, and from decree of circuit court of Albemarle county (to which court the cause had been removed), rendered May 15th, 1888, in the chancery cause wherein R. 17. Ellis and others were complainants, and Isabella J. Woods and others were defendants. The decree being adverse to the said Woods, she obtained an appeal and supersedeas. Opinion states the case.

<p>Argued at Staunton, decided at Richmond. Appeal from decree of circuit court of Shenandoah county, rendered at its September term, 1886, in the chancery cause wherein Benjamin Kerlin and others are complainants, and .Thomas J. Kerlin and others are defendants. The object of this suit was to compel the said Thomas J. Kerlin to settle up the estate of his father, David Kerlin, deceased, in pursuance of several contracts between them, and of the will of the decedent. The decree being adverse to the said Thomas J. Kerlin, he obtained an appeal and supersedeas thereto. Opinion states the case.</p>

Argued at Staunton, decided at Richmond. Appeal from two decrees of circuit court of Frederick county, rendered June 12th, 1886, in the chancery cause of Barbara Kern’s administrators against James Riely’s heirs. The petition of William Riely, J. B. Riely and Ann R. Burwell against Henry Kinzel, Emma Y. Baker, Wm. H. Baker and James R. Richards to revive the said suit which had been dismissed, the petitioners obtained an appeal and supersedeas. Opinion states the case.

P. Eobertson, administrator of Washington Jackson, deceased, is plaintiff, and the Norfolk and Western Eailroad Company is defendant. There was a demurrer to the declaration and to each count thereof, which was overruled. The verdict being for the plaintiff for $5,000 damages, the defendant moved that it be set aside and a new trial granted.

Argued at Wytheville, decided at Richmond. Error to judgment of hustings court of Roanoke city, rendered June 25th, 1887, in an action of trespass on the case for the alleged breach of a contract, wherein H. P. McDonald, Kenneth McDonald and Donald McDonald, partners in the style of McDonald Brothers, were plaintiffs, and William Welch and B. B. Dull were defendants. There was a demurrer to the declaration and to each count thereof, which was overruled.

Phillips and Ellen O. Phillips, his wife, were complainants, and Margaret E. Ferguson, in her own right and as executrix of E. T. Ferguson, deceased, and others, devisees and legatees under the decedent’s will were defendants. The object of the suit was to have the will construed and the estate administered. It was instituted in the circuit court of Greensville county and removed to the circuit court of the said city.

<p>Error to judgment of circuit court of city of Richmond, rendered May 18th, 1888, in proceedings for taxes, wherein the Commonwealth was plaintiff and H. W. Ellett, the plaintiff in error, was the defendant.</p>

<p>Error to judgment of circuit court of city of Alexandria, rendered June 5th, 1888, in proceedings wherein the Commonwealth was plaintiff, and the plaintiff in error, John McG-ahey, was defendant. Opinion states the case.</p>

<p>Error to judgment of circuit court of Hem’ico county, rendered May 8th, 1888, in proceedings wherein the Commonwealth was plaintiff, and Joseph Bryan, the plaintiff in error, was the defendant.</p>

Cooper for the recovery of taxes and debts due the plaintiff, for the payment whereof the defendant had tendered coupons.

<p>1. Constitution—Taxation—Obligation of contracts.</p> <p>2. Idem—Expert testimony—Rules of evidence.</p>

Clark, trustee, against M. H. Spotts and others, instituted for the purpose of ascertaining the liens and priorities on a house and lot of said M. H. Spotts, in the city of Winchester, Virginia, on which there was a deed of trust to said Clark, as trustee, for the benefit of the executors of L. E. Swartzwelder, deceased, to secure the payment of a bond for purchase-money, which had been assigned to H. Baetjer, and to have decree for sale.

- J. Moore was plaintiff, and the city of Richmond was defendant. The verdict and judgment being for the defendant, the plaintiff took the necessary steps to obtain a writ of error to this court. Opinion states the case.

<p>1. -Wills—Testamentary capacity.— Testator, in making bis will, must be capable of understanding the nature of the business he is engaged in, and the elements his will is composed of, and the disposition of his property thereby provided for, both as to the property and the persons he means to give it to, and how it is to be disposed of among them.</p> <p>2. Idem—Ontis probandi.—Burden of proving capacity is on propounder of the will. Nothing short of clear and convincing evidence will suffice. Riddell v. Johnson, 26 Gratt. 152.</p> <p>3. Idem—Execution—Attesting witnesses—Rule—Exception.—General rule is, that one signing his name as witness to a will, by this act solemnly testifies to testator’s sanity. If afterwards he attempts to impeach the will’s validity, his testimony is not to be positively rejected, but received with the most scrupulous jealousy. Young v.- Barner, 27 Gratt. 103. But this rule ought not to be rigorously applied where such witnesses, suddenly called upon by the propounder to attest the will without time for due deliberation, testify in his behalf and are bound to detail the circumstances, affording the only reliable data from which the court can deduce its conclusions.</p> <p>4. Idem—Presence.—The presence of the testator wherein the statute requires attesting witnesses to subscribe their names as such to a will, means the testator’s “ conscious presence.” Baldwin v. Baldwin, 81 Va. 405.</p> <p>5. Appellate Court—Two verdicts—Rule under Code 1887, $ 3484.— Where, at trial, under Code 1873, ch. 118, $ 32, jury finds against the will, verdict is set aside on motion of plaintiff. At second trial jury finds . for the will. Motion for defendants to set aside verdict is overruled, and the defendants having excepted, and the evidence (not the facts) certified, on appeal;</p> <p>Held:</p> <p>Under Code 1887, $ 3484, plaintiff in error’s exception must, in considering the decision of the court below setting aside the first verdict, be treated as a demurrer to the evidence, and all his oral evidence treated as waived, and all his adversary’s evidence and all fair influences therefrom be treated as true, instead of considering the whole evidence at the first trial as under the rule before $ 3484 was enacted.</p> <p>6. Idem.—For discussion of rule established by said l 3484, see opinion.</p> <p>7. Wills— Two verdicts—Case at bar.—In the case here, upon the evidence certified, considered under the rule pertaining to a demurrer to the evidence;</p> <p>Held:</p> <p>The court below erred in setting aside the first verdict, and judgment should be entered on that verdict, and all subsequent proceedings annulled.</p>

<p>1. Administration of Justice&emdash;Power of court&emdash;Where the court, in its discretion, deems it essential to the proper administration of justice to close streets so as to prevent noises which disturb judge and jury in hearing witnesses and counsel, it has power to do so,</p> <p>2. Idem&emdash;Hustings court of Richmond..&emdash;The judge of the said court is a judge of the State, and the city has no authority to control his action.</p>

L. McCoull, Jr., was plaintiff, and the city of Manchester was defendant.

Morriss, trustee, etc., was complainant, and Eobert F. Morriss, Charles Y. Morriss, Chapman W. Morriss, and Eohert F. Morriss, Jr. (the last three being infants), were defendants. A final decree was entered in said cause July 25th, 1873. After his arrival at age, October 13th, 1883, said Chapman W. Morriss was allowed to file his bill to review and reverse the said decree, but the court dismissed his bill at the hearing, and he appealed. Opinion states the case.

Branch and his infant brothers and sisters by him as their next friend, are complainants, and the Life Association of America, John W„ Friend, R. K. M. Friend, Miles B. Branch, and others are defendants.

<p>Error to judgment of corporation court of city of Alexandria, rendered 14th July, 1888, on trial of Wm. Williams indicted jointly with one John Curran for the murder of Julian Arnold, a policeman. The jury found the prisoner guilty of murder in the second degree, and fixed his term of imprisonment in the penitentiary at five years, and the court sentenced him accordingly. Erom this judgment the prisoner brought his case here upon a writ of error. Opinion states the case.</p>

<p>Appeal from decree of circuit court of Halifax county, rendered September 9th, 1872, in the chancery cause wherein Thomas S. Jones and Mary, his wife, formerly Mary West, were complainants, and Mary A. West, widow and administratrix, and Elizabeth, Martha, and Addison L. West, the heirs and distributees of Beverly E. West, deceased, were defendants, the object being a settlement of the estate, and a division thereof between the parties. The decree being unfavorable to Addison L. West, he obtained an appeal to this court. Opinion states the case.</p>

<p>1. Usury.&emdash;Where there is no loan, or a forbearance to collect an existing debt, there can be no usury.</p> <p>2. Idem&emdash;Case at bar.&emdash;Debtor’s property having been sold under decree, she agreed with R. that if he would set aside the sale and give her a reasonable time to pay for it, she would pay him $1,000. R. put in upset bid, and the sale was set aside. Later, the liens having been ascertained to be $4,441.83, exclusive of interest and costs, she conveyed the property to R. “ for $6,000 cash in hand paid,” but really that R. pay off the liens, etc., and the balance of $6,000, if any, to her. Same day R. agreed to resell her the property at $7,000, payable, with interest payable annually, in ten equal annual instalments. After R. had paid off said liens, etc., she being in default on her part, he brought his bill to enforce his lien for the unpaid price of the resale, and she pleaded usury;</p> <p>Held:</p> <p>The transaction has no characteristic of usury.</p>

Petition of the Commonwealth for a writ of prohibition against the corporation court of Lynchburg entertaining a suit to enjoin the enforcement of its judgment for costs against one Edgar Gr. Jones. Opinion states the case.

The prisoner at the trial asked the court to give an instruction, which the court gave with an addition to which he objected. And he moved the court to set aside the verdict and grant a new trial, hut the motion was denied. Thereupon the, prisoner excepted to these rulings of the court, which sentenced him according to the verdiet, and the evidence being certified, the prisoner brought the case here by writ of error and supersedeas. Opinion states the case.

' Application for a mandamus to compel the auditor of public accounts to issue a license to an assessment life insurance company without making the required deposit of bonds. Opinion states the case.

<p>Written Instruments&emdash;Construction&emdash;Parol Evidence.&emdash;Where powers of attorney, to execute bond in grantors’ names as sureties for a person as county treasurer, are in no way ambiguous, parol evidence is not admissible to limit the power to the bond required of such person elected by vote, and to exclude the bond required of him when, having failed to qualify in time after his election, he is appointed by the county judge to fill the vacancy.</p>

O. Rust was complainant, and Walter Campbell and others were defendants. It appears from the voluminous record that previous to November 14th, 1885, Rust had an arrangement to deliver to the Shenandoah Iron Company, at his siding on the Shenandoah Valley railroad, from his two banks, “the Amelia, or No. 1,” and “the Strickler, or No. 2,” iron ore at $1.75 per ton of 2,240 pounds, and that he had failed to realize profit at the' business.

Argued at Wytheville. Decided at Richmond. Error to judgment of judge of circuit court of Grayson county denying, on 18th of August, 1888, a writ of error to judgment of county court of said county, rendered 7th August, 1888, whereby Samuel Vaughan was sentenced to the penitentiary for three years upon a verdict of guilty of voluntary manslaughter on an indictment for the murder of Jeff.

<p>Appeal from decree of circuit court of Alexandria city rendered March 30th, 1887, in the suit wherein James A. Marshall was complainant and the Farmers’ and Mechanics’ Savings Bank of Alexandria, Virginia, Andrew Jameison, John W. Stewart, and others were defendants. The object of the suit was to hold the directors, of .the bank personally responsible _foL_losse.s resulting from their gross negligence to depositors. The circuit court dismissed the bill, and the complainant appealed. Opinion states the case.</p>

Argued at Staunton, decided at Richmond. Appeal from decree of circuit court of Clarke county, rendered on the 6th of February, 1883, in the chancery cause wherein Margaret Byrd, assignee of R. E. Byrd's administrator, was complainant, and John Alexander, administrator of W. O. Alexander, deceased, and J. H. and W. R. Alexander, and Bettie M. Grigsby and Mary A. Brubaker, the only children and heirs-at-law of the decedent, were defendants.

Argued at Staunton, decided at Richmond. Error to judgment of circuit court of Shenandoah county, rendered June 25th, 1888, refusing a writ of error to a judgment of the county court of said county, rendered at its April term, 1888, sentencing Siram E. Hausenfluck to confinement in the penitentiary for the period of two years, he having been found guilty on an indictment for a felony. Opinion states the case.

<p>Payment&emdash;Presumption&emdash;Lapse of time&emdash;Laches.&emdash;For balance due on negotiable note, holder, a bank, got judgment in 1857 against maker and five endorsers. No execution was ever issued, nor was the judgment ever revived. In 1871 the bank was wound up and its effects sold, among them the note. The judgment does not appear to have been sold. Cashier testified that it never went into receiver’s hands, and was , never sold, and that balance on it was allowed the last endorser as attorney’s fees. Said endorser died in 1862. In 1879 purchasers of the note filed it as their claim in a suit begun in 1868, for settlement of his estate. Prior endorser who, as.sheriff, had served the process in the bank’s action, and knew all about the matter, was dead. Former administrator of fast endorser testified that in 1865 the bank filed its claims against the estate, but did not file this. In 1872 assignee of the bank brought suit to enforce lien of judgment obtained in 1859 against another prior endorser, wherein an account of liens was taken, and neither the note nor the judgment was mentioned ;</p> <p>Held:</p> <p>The estate of the last endorser is not liable for the claim set up by the purchasers of the note, and the lapse of time and the circumstances offered grounds for the presumption of payment, and constitute such laches as to bar recovery.</p>

F. Allen & Co. and others were complainants, and John M. Terrell, sheriff of said county, and as such administrator of B. H. Robinson, deceased, and R. H. Coghill, were defendants. The object of the suit was to administer the social assets of the late firm, which was alleged in the bill to have subsisted between the intestate and said Coghill, for the benefit of the social creditors.

<p>Appeal from decree of circuit court of Oulpeper county, rendered September 15th, 1887, in a chancery cause wherein Thomas K. Chandler, executor of Jane I. Ficldin, deceased, was complainant, and Elias Compton and Landon O. Maj'or were defendants. Compton filed a cross-bill against the complainant and his co-defendant, Major, praying affirmative relief against the latter, and the decree being adverse to Major, he obtained an appeal and supersedeas from one of the judges of this court. Opinion states the case.</p>

Sewell, deceased, Wm. F. Stewart and Lelia, his wife, and Clyde Cassells, an infant, are defendants.

<p>1. Gifts—Donatio causa mortis—Delivery.—To render a gift effectual, the thing given, or the means of obtaining it, must be delivered by the donor to the donee, or to his agent, and accepted by him, and this is true, whether it be intended as a gift inter vivos, or a gift mortis causa.</p> <p>2. Idem—Previous possession.—Nor will previous possession of the thing given suffice, delivery by the donor being essential.</p> <p>3. Idem—Donor's declaration—Executor.—It is well settled that donor’s declaration that he had given the thing in question, will not perfect a gift incomplete for want of delivery. Nor will the subsequent recognition of the gift by the donor’s executor avail.</p>

Argued at Staunton, decided at Richmond. Appeal from decree of circuit court of Rockingham county, rendered June 30th, 1887, in the chancery cause therein pending, in which the Phenix Insurance Company of New York, the Fire Association of Philadelphia, and the Hope Insurance Company of New Orleans were complainants, and the First National Bank of Harrisonburg, Virginia, was defendant.

<p>1. Contracts&emdash;Construction&emdash;Parties.&emdash;The practical construction put by the parties upon the terms of their own contract is not only to be regarded, but, where there is any doubt, must prevail over the literal meaning of the contract. District of Columbia v. Gallagher, 121 U. S. 505.</p> <p>2. Idem&emdash;Question for the jury&emdash;Case at bar.&emdash;Railway company by contract issued to plaintiff an annual pass. On its expiration plaintiff applied for and secured a renewal. On its expiration he did not apply for another;</p> <p>Held :</p> <p>It is a question for the jury whether it was the duty of the company to issue a renewal without application.</p> <p>3. Carriers of Passengers&emdash;Contract for carriage&emdash;Case at bar.&emdash;Railway company contracted with a firm “ in consideration for a ticket entitling either member of the firm, but only one on any train, to a seat on its passenger trains ”;</p> <p>Held:</p> <p>Firm entitled to only one ticket, to be presented when any one member took passage.</p>

Shelton’s executor was complainant, and B. M. Francisco, in his own right and as heir and administrator of H. L. Francisco, deceased,. W. W. Pettus, S. B. Hackett and the heirs and distributees of Fendol Chiles, deceased, were defendants. The object of the suit was to recover the balance of a debt against the defendants,, a part whereof had been satisfied by the sale of land conveyed in trust to secure said debt. The decree being adverse to B. M..

H. H. Bernard was plaintiff, and the Richmond, Fredericksburg and Potomac Railroad Company was defendant. The verdict being for the defendant, plaintiff moved' to set it aside as against the law and the evidence. This motion being overruled, the plaintiff excepted; and the evidence being certified, the plaintiff brought the case here by writ of error. Opinion states the case.

W. Pickleseimer was plaintiff and the Richmond and Danville.

Radford’s Administratrix and heirs,” to settle the administration of the estate of her intestate, Dr. John B. Radford, and sell his lands to pay his debts. A partial settlement of the accounts of the administratrix had been taken, returned and confirmed May 20th, 1878, and Wm. T. Yancey and his wife, Mary McC.

Cottrell was defendant. The suit, which was removed to that court from the circuit court of Goochland county, was brought for a partition of a certain tract of land, situate in the last-mentioned county, known as “Sycamore Grove,” and of which the plaintiffs and the defendant were seized as tenants in common.

<p>Error from judgment of circuit court of Greensville county, rendered October 2?, 188?, on an indictment of plaintiff in error for murder of one Joe Robinson in said county, and upon the trial found guilty of murder in the first degree, by the verdict of the jury, and sentenced by the court to be hung. The killing was on 26th December, 1886, with a shot-gun, and was done in the presence of a number of people, and was the result of a good deal of previous controversy, including fighting and abusive language on tbe part of both parties. A number of exceptions were taken at the trial, and the evidence was certified, and a motion made to set aside the verdict and grant the accused a new trial, which was overruled, and the plaintiff in error sentenced in accordance with the verdict; whereupon the case was brought here by writ of error and supersedeas.</p>

Whitehead, guardian, &c., complainant, against John B. Whitehead, executor and trustee under the will of William B. Whitehead, deceased, defendant, determining the principles on which the accounts of said fiduciary should be settled; and also from decree in said cause rendered April 11th, 1889, against said fiduciary, John B. Whitehead, in favor of Eobert B. Prentiss, curator of the estate of William B. Whitehead, deceased, for the sum of $77,358.10, with interest thereon…

Moorman and others, heirs-at law of J. G. Moorman, deceased, were complainants, and W. IST. Shelton, administrator of E. W. Lawson, deceased, and said Lawson’s heirs and others, were defendants. Its obj’ect was to set aside a sale made to said Lawson of complainant’s ancestors’ land, under a decree of the circuit court of Pittsylvania county in a creditors’ suit instituted by Thomas O. Soyars to sell the real estate of said J. O. Moorman, deceased, to pay judgment liens.

F. Payne, doing business as hankers in the name of Payne & Co., and F. T. Scott, A. D. Payne and Albert Fletcher, assignees of said firm, were defendants. The decree being adverse to the complainant, it appealed. Opinion states the case.

<p>Constitution&emdash;License&emdash;State bonds&emdash;Coupons.&emdash;Acts 1883-4, chapter 450, § 65, imposing a tax on the business of selling coupons cut from the bonds of the State is not repugnant to the Constitution of the United States. Com’th v. Maury. 82 Va. 882.</p>

, v. National Express and Transportation Company. The object of the bill was to assess and collect the unpaid subscriptions to the capital stock of said corporation, and apply the avails to its debts. The corporation had conveyed all its property, including the unpaid subscriptions, and made the latter payable to the trustees. Hamilton and others, stockholders, filed a petition praying to be made parties to the cause, and that the decrees rendered therein might be reheard.

Grayson, complainant, against Cumberland George’s Executor and others, defendants.” The decree being adverse to the complainant, he appealed. Opinion states the case.

<p>Error to judgment of corporation court of Lynchburg, rendered December 12th, 1888, upon the petition of S. C. Hurt against the Commonwealth under sections 406, 401, and 408 of the Code of 1881, for the identification and verification of coupons. The judgment being against the Commonwealth, she obtained a writ of error and supersedeas. Opinion states the case.</p>

& Payne for the identification and verification of coupons alleged to have been cut from State bonds, tendered by them in payment of taxes due the Commonwealth.

<p>Resulting Trusts —Where, under decree of court, money is loaned to purchaser to pay part of price of land, a trust will not result in favor of the owners of such money.</p>

<p>1. Criminal Proceedings—Indictment.—An indictment for rape in the words of § 3680, Code 1887, defining the offense, is good.</p> <p>2. Idem—Plea—Replication.—Prisoner plead that he had been held for trial more than four terms after indictment. Replication that during that period prisoner had been convicted and the conviction reversed, and that he had been held till reversal for punishment, not for trial, held sufficient.</p> <p>3. Idem—Same defense.—It is proper to reject plea presenting in different language same defense already presented in another plea.</p> <p>4. Idem—Motion for new trial.—Where prosecutrix, twelve years old, has been critically examined as to her understanding the motive of an oath by the trial court to its satisfaction, and the jury instructed that they were the judges of her'credibility, motion to set aside verdict of guilty, on the ground that she could not understand the same, will not be sustained.</p> <p>5. Idem—Case at bar.—The evidence certified in this case held conclusive of the prisoner’s guilt.</p>

<p>Error to judgment of circuit court of Richmond city, rendered July 13th, 188Y, in the action of T. Seddon, who is the plaintiff in error, against S. M. Rosenbaum. Opinion states the case.</p>

<p>1. Chancery Practice&emdash;for discovery&emdash;Answer.&emdash;Where to bill calling for discovery and alleging fraud, there is a responsive answer positively denying the allegations, and they are unsustained by evidence at the hearing, the bill must, of course, be dismissed with costs.</p> <p>2. Idem&emdash;Case at bar.&emdash;Father confessed judgment in favor of son. Creditor of former brought his bill charging that the judgment was without consideration and intended to hinder, delay and defraud the father’s creditors. The latter answered specifically, denying the charges. The case being heard on the bill and answer without depositions was dismissed ;</p> <p>Held:</p> <p>No error.</p>

Cooper’s administrator was plaintiff, and the New York, Philadelphia and Norfolk railroad company and others were defendants. The verdict and judgment being for the plaintiff, the said railroad company brought the case here upon writ of error and supersedeas. Opinion states the case.

W. Baugh and others, to cancel a trust deed executed by Baugh to A. S. Edwards to secure certain debts, on the ground that said deed was intended to hinder, delay and defraud creditors. The decree dismissed the bill, and Paul appealed. Opinion states the case.

<p>Error to judgment of circuit court of Lynchburg, rendered November 19th, 1881, against the defendant, the plaintiff in error here, in an action on a policy of insurance, wherein J. A. Elliott and W. T. Doss, partners as Elliott & Doss, were plaintiffs, and the Niagara Fire Insurance Co. was defendant. Opinion states the case.</p>

Atwood and others were complainants, and are the appellants here, and the Shenandoah Railroad Company and others were defendants. The company was incorporated in this State, and given general powers to build a railroad. Subsequently similar powers were given it by West Virginia and Maryland.