Volume 87 — Virginia Reports

Fitzpatrick, administrator de bonis non with the will annexed of Lemuel Turner, deceased, was plaintiff, and Emily R. Thomas and others were defendants. The controversy grows out of a certain written assignment, executed by the said Emily R. Thomas, on the 18th of December, 1886, for the benefit of the said Thomas P. Fitzpatrick, for services previously rendered by him as her attorney.

<p>Appeal from decree of circuit court of Shenandoah county, rendered November 24th, 1888, wherein the appellants, W. D. Hockman and others, are complainants, and Thomas McClanahan and others are defendants. Opinion states the case.</p>

Clement, are complainants, and Randolph Dickinson and others are defendants. The decree being adverse td Dickinson, he obtained an appeal and supersedeas. Opinion states the case.

P. Spessard was complainant and the personal representative and widow and heirs of W. E. Eakin, deceased, were defendants; and a chancery suit wherein J. H. H. Figgat was complainant against the same defendants, which suits were consolidated and heard together.

M. Hall and others v. M. H. Effinger’s ex’or and others.” The decree being adverse to William E. Conrad, purchaser of land sold under decree in said cause, he obtained an appeal and supersedeas. Opinion states the case.

<p>Error to judgment of corporation court of city of Lynch-burg, rendered 13th day of February, 1890, against the plaintiff in error, Charles Jones, in a prosecution for a felony. Opinion states the case.</p>

V. Strange and L. E. Litchford, partners as Strange & Litchford, complainants, against M. J. Day, sergeant of the city of Lynchburg, in which cause an injunction was awarded in vacation, restraining the sale of the complainants’ property, under an execution for twenty-six dollars and sixty-three cents, the costs recovered by him against them in this court, and two dollars and ninety-six cents, the costs in the corporation court, in a controversy alleged to arise out of…

<p>Appeal—Jurisdictional amount.—The amount involved in each of several cases against the same defendant being less than §500, the jurisdictional amount of this court as fixed by the Constitution of Virginia, the appeals therein must be dismissed.</p>

circuit court of Halifax county, rendered November 18th, 1887, in a cause wherein John W. Riely, administrator d. b. n. c. t. a. of Thomas E. West, deceased, is complainant, and H. H. Hurt, administrator of George H. West, deceased, and James Medley, Jr., and John L. Hurt, his sureties, are defendants.- The decree confirmed a report of H. H. Hurt’s administration of the estate, ordered and taken in the suit; and from the confirmation of the report John L. Hurt, a surety,…

Dupuy and Mary B., his wife, Charles Baskerville and Alice M., his wife, F. S. Sampson, John R. Sampson, and Thornton R. Sampson, the heirs-at-law of Caroline S. Watkins, deceased, were complainants, and J. E. Watkins, Thomas W. Scott and Ruth J., his wife, John K. Hannah and Ella C., his wife, the legatees, and L. P. Winston, sheriff, etc., and administrator of F. B. Watkins, deceased, and others, were defendants.

<p>Criminal Proceedings—Information.—Under Code, section 3990, an information filed not upon the basis of a presentment, indictment, or complaint in writing, verified by the oath of a competent witness, is insufficient.</p>

<p>1. Sale op Liquors—Indictment—Place—Time—Sample.—Indictment under ’ Acts 1889-90, p. 242, sec. 1, for selling liquor without license, must definitely state the place where sold, but the exact time of the sale need not be stated, nor need it be stated that the sale was “ by sample, representation, or otherwise.”</p> <p>2. Former Jeopardy.—Prosecution for selling liquor on Sunday contrary to Code, sec. 3804, is no bar to prosecution for selling same liquor without license contrary to Acts 1889-’90, p. 242, sec. 1.</p>

Finley, S. W. Finley and M. E. Eichelberger are complainants, and A. J. Brent, W. P. Anderson, and 0. S. Gulick are defendants. The decree dismissed the complainants’ bill, and they appealed. Opinion states the case.

Crafford and others, citizens, tax-payers, and voters of the said county (and the appellants here), are complainants, and the board of supervisors of said county are defendants. Opinion states the case.

Two separate writs of error to two separate judgments of the circuit court of Nansemond county, rendered February 15th, 1889, affirming the judgments of the county court of said county in the proceedings of the Atlantic & Danville Railroad Company to condemn so much of the land of Esther Reid and of G. W. and I. Truitt, respectively, as it proposed to take for its purposes. Opinion states the case.

<p>Religious Societies—Powers of church'trustees.—Deed, conveying to trustees land on condition that they build thereon, when they thought fit, a church, and permit it to be preached in by certain persons, and to be used “ for such other purposes as should be deemed appropriate and necessary to further the cause" of Christ,” contained no covenant to rebuild, or condition that the land revert, upon failure of the trustees to maintain the church. A church was built thereon, and used as long as it was fit to use: held, the trustees may sell the land and invest the proceeds in a parsonage for the same congregation, in connection with a new church .on a different lot. But it should be sold in accordance with Code, ch. 64, for the sale of church property.</p>

Peake was plaintiff and the Atlantic & Danville Railway Company was defendant. The transcript of the record, as certified by the clerk of the court, states that the declaration was filed at rules, on the third Monday in July, 1889, to which rules the writ, which was' dated the 27th day of June, 1889, directed the defendant company to be summoned to answer.

<p>1. Corporeal Hereditamext— Reservation.—Eight reserved in vendor to. take ore, is land, not an easement, and cannot pass as an appurtenant to other land. Lee v. Bumgardner, 86 Va., 315.</p> <p>2. Idem—Partition—Reservation in decree—Case at bar.—In suit to partition lands, decree directed that the mineral rights in the whole land remain undivided, the purchaser of one of the tracts acquires no interest in the mineral rights.</p> <p>3. Appellate Practice—Record—Additions.—Code, sec. 3459, authorizes se-, • lections from the completed record, and not additions after final decision. And deed placed among the papers, without being filed or-referred to in the proceedings, becomes no part of the record on appeal by being copied into the transcript by order of the judge under-said section.</p>

Hampton was complainant, and Monemia F. Hampton,’ his wife (the appellant here), was defendant. Opinion states the case.

Spracher was complainant and Joseph Meek, the appellant, and Joseph B. Greever were defendants.

Peale’s adm’r against A. N. Peale and others. The decree adjudging the judgment lien of Adam 0. Bear to be paramount to the trust deed of Wm. P. Blose on the land of the debtor, A. N. Peale, Blose appealed. Opinion states the case.

Baker was complainant, and William A. Baker and others were defendants. The decree being adverse to the complainant, he appealed. Opinion states the case.

Anna E. Read and her husband, D. W. R. Read, were plaintiffs, and the Norfolk & Western Railroad Company was defendant. The object of the suit was to obtain damages for injury done to goods which were the separate estate of the female plaintiff, whilst being transported over the defendant’s railway, by its servants.

Herndon, an infant under twenty-one years of age, by her next friend, Kendrick E. Herndon, was plaintiff, and the Alexandria and Fredericksburg Railroad Company was defendant. The object of the suit was to recover damages for injuries alleged to have been inflicted upon the plaintiff through the negligence of the defendant.

, was complainant, and Elizabeth P. Sergeant and W. H. Sergeant, her husband, and others were defendants. The decree being adverse to Sergeant and wife, they appealed. Opinion states the case.

<p>Tenancy at Will—Ejectment—Notice.—Purchaser of land by parol holding possession is a tenant at will, and cannot be ejected by a grantee of the vendor without a previous demand of possession and a refusal to surrender, or other wrongful act by him.</p>

<p>Error to the judgment of the judge of circuit court- of Franklin county, refusing a writ of .error to judgment of the county court of said county, rendered July 23d, 1890, on a verdict of guilty, on an indictment against plaintiff in error, one William Brown, for arson, whereby he was sentenced to be hanged by the neck until dead. Opinion states the case.</p>

Graham was complainant and Emmet B. Larmer and others were defendants.

<p>; Error to judgment of corporation court of Lynchburg, rendered December 19th, 1888, in an action of assumpsit wherein D. Karn and John Hickson, partners as Karn & Hickson, were plaintiffs, and the plaintiff in error, J. B. Bransford, treasurer of the said city, was defendant. Opinion states the case.</p>

<p>Error to judgment of corporation court of Lynchburg, rendered October 7, 1890, sentencing the prisoner, in accordance with the verdict of the jury, to confinement in the penitentiary for one year, in a prosecution for an alleged malicious assault with intent to maim, disfigure, disable and kill. Opinion states the case.</p>

<p>1. Practice in Chancery.—No right of action —Plaintiff having no right of action at the time of suit brought, his suit must fail, and when this appears on face of bill, it will be dismissed on demurrer.</p> <p>2. Idem—Amended bill—New suit.—In such suit assignee cannot file a supplemental bill, which is not allowed to make a new case, but may bring a new suit.</p>

Jewett, the defendant in error, was plaintiff, and A. L. Boulware and Charles U. Williams, partners as Boulware & Williams, were defendants. In May, 1888, the defendant in error instituted his action of assumpsit against the plaintiffs in error for the sum pf $1,500, for services rendered by him to the said plaintiffs in error, at their request, in selling certain lands mentioned and described in the evidence, and collecting rents and hunting up buyers.

Meyers. The indictment, stripped of its verbiage, is: “That Barney Cleaver and Henry Houston in said county, &c., feloniously made an assault… Held: at him, and by feloniously striking and beating him, and one silver coin, current in the Commonwealth, of the denomination of one dollar and of the value of one dollar, and other silver coins, current in the Commonwealth, of denominations unknown to the grand jurors, amounting in value to the sum of one dollar; three quarts of…

Leslie was plaintiff, and Harrison S. Fry was defendant. 'The action, which was commenced on the 1st day of March, 1889, was for the seduction of the plaintiff’s daughter. The declaration contains two counts.

<p>1. Taxation of Railroads—Bight to levy.—Act of February 27th, 1880, took effect from its passage, and empowered the board of supervisors of a county to levy on a railroad a tax for the tax year beginning on the fourth Monday in July of that year. Acts 1879-80, ch. 106, p. 32.</p> <p>2. Counties—Suits against.—Where board of supervisors “ refused ” to act upon a claim presented under Code, sec. 844, claimant may sue the county under sec. 843.</p> <p>3. Appellate Jurisdiction—Recovery of illegal taxes.—Where right of county to levy taxes is involved, this court hath, under Ya. Constitution, art. 6, sec. 2, jurisdiction of an appeal in an action to recover a tax of less than §500 illegally collected.</p>

<p>Error to judgment of corporation court of Danville, rendered January 22d, 1889, in an action of trespass on the case in assumpsit, wherein B. L. Dibrell and A. Dibrell, partners as Dibrell Bros., are plaintiffs, and M. P. Herron and W. W. Holland, partners as Herron & Holland, are defendants. The judgment being, adverse to the latter firm, they brought the case here on writ of error. Opinion states the case.</p>

<p>1. Devise to Heibs—Descent—Purchase.—Where testator devises property to his heir to take effect in the same manner as he would take as heir, he is regarded as taking by descent, and not by purchase.</p> <p>2. Will—Construction—Advancements.—Where testator devises certain land to his two sons and directs the residue to be disposed of as the law directs: held, it was his intention to equalize the two sons with his other children to whom gifts had been previously made, and not that the devise should operate as an advancement to be brought into hotchpot under Code, sec. 2561.</p>

<p>1. Practice at Common Law—Debt—Release—Non est factum—Case at bar.— A. held D.’s bonds secured by trust deed as of February, 1887. A. died November, 1882, intestate. In 1885, his administrator sued on said bonds. D. pleaded a release, purporting to have been executed by A., a few weeks before his death. To this plea the adm’r-filed the replication of non est factum. The burden of proof was on D. to establish the genuineness of the release. The court below confirmed the report of the master to the effect that the evidence, which was conflicting, did not establish the genuineness of the release. On appeal: held, no error.</p> <p>2. Appellate Practice—Immaterial Points.— This court will not consider questions not going to the merits and raised here for the first time.</p>

The object of the proceeding was to recover the sum of $67.50 for the board of the defendant’s daughter in the asylum for the period of three months.

<p>Appeal from, decree of circuit court of Greene county, rendered November 14th, 1888, in a cause wherein Tabitha Gaar and others were complainants, and the appellants, J. L. Thornton; John M. Shipp, and Joseph A. Mansfield, were defendants. Opinion states the case.</p>

<p>Error to judgment of corporation court of city of Norfolk, rendered July 22d, 1890, in condemnation proceedings, wherein the said city was plaintiff, and John R. Ludlow and others, the plaintiffs in error, were defendants. Opinion states the case.</p>

<p>Appeal from decree of chancery court of city of Richmond, rendered February 7th, 1889, in a cause entitled “ Johnson et al. against Whitlock et al.” The decree being adverse to the complainants, they appealed. Opinion states the case.</p>

<p>Raileoad Company and Employee—Duties —Defective appliances—Contributory negligence— Case at bar.—Employee accepts employment subject to incidental perils, and must obey orders. Employer does not insure employee’s safety, yet must be .careful to provide and maintain safe machinery, &c.; but it is not required to exchange it for every supposed improvement. The “ frog ” in this case was dangerous, and could have been made safe by blocking. Yet it was a standard frog, the same used everywhere by the defendant company. The plaintiff’s intestate had been for some time employed in same yard, over same frog, and was familiar with its character. On night of accident, yardmaster ordered him to uncouple cars, which were standing still, and then ride them back on a switch, but, instead of obeying orders,.he signalled engineer to back, and stepping between the moving cars to . uncouple them, got his foot caught fast in the frog, and was run over and killed: held, employee’s disobedience of orders was contributory negligence, and the proximate cause of the injury, and his administrator cannot recover.</p>

The decree reversed an order of the county court of said county appointing commissioners to fix a just compensation to the owner for the land proposed to be taken. The telegraph company brought the case here on error. Opinion states the case.

<p>Appeal from decree of circuit court of Halifax county, rendered February 16th, 1889, in a chancery cause wherein P. J. Palmer and others, the- heirs-at-law of Susan J. Hall, deceased, were complainants, and Prudence E. Hall, the widow and sole devisee of Elijah 0. Hall, deceased, was defendant. The decree being adverse to the defendant, she appealed. Opinion states the case.</p>

<p>1. Fraud—Circumstantial evidence.—A transaction may, of itself and by itself, furnish the most satisfactory proof of fraud, so conclusive as to outweigh the answer of the defendants, and even the evidence of witnesses. Parr v. Saunders, Yol. XIV., Ya. Law J., 437.</p> <p>■2. Idem—Undue influence—Cancellation of deeds—Case at bar.—Grantor, ah habitual drunkard, died from brain softening shortly after executing certain deeds. His physician, landlord, neighbors and intimates testified he was mentally incapable of transacting business. Witnesses, relatives and friends, living at a distance, merely expressed opinion to the contrary without giving reasons. The beneficiaries, his most trusted friends, assisted him in executing the deeds; one was his own cousin, possessing over him unbounded influence. There was no consideration, and existence of the deeds was concealed from grantor’s family and counsel: held, the deeds should be cancelled.</p>

<p>1. Evidence—Parol—Admissible as to third parties.—The rule excluding parol evidence to contradict written, cannot affect third parties, who are not precluded by recitals in written contracts between others, from showing what was the real transaction. Barreda v. Silsbee, 21 How., 169.</p> <p>2. Idem—License—Revocable—Case at bar.—D. leased to R., for a term of years, the exclusive right to and possession of certain land, to cut and remove the lumber. After R. had for several years been engaged in carrying out the lease, he agreed in writing to sell to B. (who was aware of R.’s rights), the lumber standing on the land. B. proceeded to cut and remove the same. R. enjoined B., who was unable to pay damages. By parol, it appeared that D.’s contract with B. was restricted to “ down and refuse timber,” and that D. had revoked it: held, R. was not precluded from using parol evidence to show the true contract between D. and B. And the agreement for D. to sell to B. the standing timber was a mere license, and revocable at D.’s volition.</p>

<p>1. Deeds—Invalid acknowledgment—Recordation.—Deed of trust by husband and wife to a trustee, who, as notary, took their acknowledgment, the . recordation is invalid as to both, and the deed wholly void as to the wife, and as to the husband, valid only between the parties and as to third persons having notice thereof. Bowden v. Parrish, 86 Va., 67.</p> <p>2. Insolvent Debtor—Preference among creditors.—It is settled doctrine in this State that a debtor in insolvent circumstances may make an as signment, preferring one, or more, of his creditors to the rest. Paul v. Baugh, 85 Va., 955.</p> <p>S. Assignment to Wipe—Consideration—Estimate of adequacy— Case at bar.— Testator devised house and lot to daughter on condition if she died without issue, then, over. Same was sold under decree, and proceeds invested on same terms, in two bonds of husband, aggregating $3,000, held by a bank, and supposed to be secured by a trust deed, which proved to have been invalidly acknowledged. Later, husband assigned to wife his interest in the property devised her by her father (which was the use for their joint lives of the said two bonds), in consideration of B. & Co.’s release of debt of $400, due them from him. Another creditor of husband brought suit to annul the assignment as being without valuable and adequate consideration. Master reported life interest as worth $2,132.23, calculated by the tables of mortality. The evidence tended to show the real value of his interest, not to exceed §500: held, the consideration was valuable and not shown to be inadequate. Assignment was not a post-nuptial settlement, but, as it were, one by debtor to creditor, and by latter to the wife. No correct estimate of value of husband’s interest in the notes, could be made from the life-tables according to rule in Strayer v. Long, 86 Va., 557.</p> <p>4. Principal and Surety—Subrogation.—Surety cannot be subrogated to the benefit of trust deed executed to secure the debt, until he pays the same, and then he is entitled only to such security as the creditor has.</p>

<p>Appeal from decree of circuit court of Augusta county, rendered June 18th, 1890, in a suit wherein the appellant, Dunsmore, was complainant, and the appellee, Lyle, was defendant, for specific performance of an alleged contract for the sale of a tract of land, belonging to'Lyle, to the defendant. At the hearing, upon the demurrer, answer and plea of defendant, and the depositions taken on both sides, the bill was dismissed, whereupon the plaintiff obtained an appeal from the decree. Opinion states the case.</p>

<p>Error to judgment of circuit court of city of Richmond, rendered September 6th, 1888, in an action of ejectment, wherein James Holloran, the plaintiff in error, was plaintiff, and Philip Meisel, Sr., and Philip Meisel, Jr., were defendants. Opinion states the case.</p>

<p>,1. Husband and Wife—Witnesses.—When both are interested in the result of the suit, neither is a competent witness. And same is true when the question is whether a settlement made by him on her is a valid act.</p> <p>2. Recitals in Deeds—As to whom conclusive.—These are conclusive against parties claiming under the deed, but not as to third persons.</p> <p>3. Post-Nuptial Settlements—When valid.—Such settlements made in pursuance of previous contract and on valuable consideration, such as relinquishment of her interest in husband’s estate, where there is no badge of fraud, are good.</p> <p>4. Idem—Subsequent debts.—Post-nuptial settlement will be good against subsequent creditors where there is no fraud and settler is not in debt when he makes it.</p> <p>5. Idem—Without consideration.—Everv voluntary post-nuptial settlement is fraudulent and void as against creditors, when settler is indebted. And every settlement will be taken as voluntary, unless those claiming under it can show it was made for a valuable consideration, which cannot be shown either.by the answer or by the recitals in the deed, but must be established by legal evidence.</p> <p>6. Idem—Case at bar.—Settlement by husband largely indebted, on wife of lands and all his personalty, upon consideration and pursuant to agreement recited in the deed : held, void as to creditors in the absence of evidence to sustain the truth of said recitals.</p>

J. Fallin was complainant, and W. J. Tune was defendant. The bill in this case was filed by the appellee to set aside her deed to the appellant to a tract of land in the county of Northumberland, executed December 20th, 1887, for the sum of $2,400, upon the ground of misrepresentation, collusion, and fraud; and on the 2d day of October, 1888, the circuit court of said county rendered a decree declaring the said deed null and void for the reasons stated, and the appellant,…

The action was for damages for loss resulting from the negligent act of the defendant, in sending out from its Richmond office a message, in fact a duplicate, which the plaintiff received and acted upon as an original message. The verdict and judgment being for the plaintiff, the defendant brought the case here on writ of error and supersedeas., Opinion states the case.

Vaughan’s Administrator.” Decree being adverse to C. H. Harper and E. M. Noble, the husbands of Amanda R. Vaughan and Emma 0. Vaughan, respectively,. defendants, they appealed. Opinion states the case.

H. Motley, A. H. Motley, Jr., and James A. Thomas, doing business in the name of A. H. Motley & Co., are complainants, and the Frank Tobacco Company and others are defendants. Opinion states the case.

Bowen, deceased, wherein Alexander Pratt, as an heir of decedent and as his administrator, the appellant here, was a defendant, and T. A. Harris, administrator of Adelaide Bowen, deceased, was a complainant. Opinion states the case.

<p>Judgments—Satisfaction—Case at bar.—Defendant testified that he had satisfied a judgment filed in creditors’ suit, with a debt due him from plaintiff, who swore the contrary, and showed by receipts how he paid the debt, and that at time of alleged satisfaction judgment had been assigned as collateral to a third party, by whom it was subsequently re-assigned: held, confirmation of report of - commissioner, showing judgment unpaid, was proper.</p>

<p>1. Power—OarmeycwGez^Irast deed—Assignee.—Conveyance of land to buyer and trust deed by him to secure price, executed same day, are deemed one in equity, and wife_ of_buyer is not entitled. tp_ do.wer in the land,' the seisin_pf_the husband being onjyjor an instant. The principle applies equally where the trust deed is for the benefit of an assignee.</p> <p>2. Idem—Surplus—Liability of buyer.—Wife is entitled to dower in the surplus arising from the sale of the land, but the purchaser is not bound to see to the application of the purchase-money.</p>

18th, 1889, in the suit wherein the appellants, Daniel Diehl and Jane T. Diehl, his wife, were complainants, and J. It. Marchant was defendant. Opinion states the case.

M. Whitehurst, executor of Eliza Gregory, deceased, is complainant, and Joseph A. Parker, her committee, and W. G. W. Parker, are defendants. Opinion states the case. '

T. Seal. This is the sequel to the case of Muscoe v. Commonwealth, 86 Va., 443. On former appeal, judgment was reversed and a new trial awarded for errors in the third and fourth instructions given by the trial court. The prisoner was again tried and found guilty of murder in the first degree, and sentenced to be hanged therefor March 24th, 1890. Thereupon prisoner obtained a writ of error. Opinion states the case.

<p>Error to judgment of circuit court of Clarke county, rendered May 38th, 1889, in- an action wherein George C Ricamore was plaintiff, and Sidney F. Tyler, receiver of the Shenandoah Valley Railroad Company, was defendant. At the calling of the case for trial certain assignments were produced, assigning so much of the claim of the plaintiff as should be necessary, out of any recovery which should be had in the case, to certain insurance companies as had paid policies of insurance on the property of the plaintiff so destroyed by fire. And, on the motion of the plaintiff, it was entered of record that so much of any recovery in this suit, to the extent of $303.61, with six per centum per annum interest thereon from December 28, 1886, is for the use of the Agricultural Insurance Company, of Watertown, New York; that $425, with like interest from same date, is for the use of the North British & Mercantile Insurance Company, of London and Edinburg, and that $966.11, with like interest from same date, is for the use of the Virginia Fire & Marine Insurance Company, of Richmond, Virginia. This being done, the defendant, Tyler, receiver, &c., moved the court to dismiss the action, upon the ground that, after the said assignment and order, a court of law had no jurisdiction to try and determine the •case, but that jurisdiction thereof belonged to a court of equity. This motion was overruled, and the defendant excepted. And a jury being sworn to try the issue joined, the plaintiff asked for certain instructions, which the court gave, and the defendant asked for five instructions, numbered 1, 2, 3, 4, and 5, all of which the court gave except No. 4, which the court refused to give; and the defendant excepted to the action of the court in giving the instructions asked for by the plaintiff, and in refusing the fourth instruction asked for by the defendant. And the jury having rendered a verdict for the plaintiff in the sum of $2,009.11, with interest from October 17th, 1886, the said defendant moved the court to set aside the said verdict and grant a new trial for reasons stated, but this motion the court overruled, and rendered judgment thereon, and apportioned the same to the extent necessary to satisfy the assignments to the said insurance companies. Whereupon the defendant applied for and obtained a writ of error to this-court.</p>

Wingo, John S. Ellett and James D. Crump, partners in business in the name of Wingo, Ellett & Crump, were complainants, and N. Purdy, L. S. Purdy, and B. G. Team, late partners in the name of Purdy & Co., were defendants. This suit was by foreign attachment in eijliity, instituted in the county of Greensville, in the State of Virginia, by the appellants, a firm of Richmond city merchants, against the' appellees, a firm of merchants doing business in Camden, South Carolina.

The suit was by bill in equity by the appellee, W. B. Gentry, seeking to compel specific performance by the appellants, B. 0. Gentry and his wife, Josephine 0.

W. Roche and others (liquor dealers under the laws of the State) are complainants, and I. S. Jones, sergeant of the town of Hampton, Virginia, and Jesse S. Jones, treasurer of said town,, are defendants. The decree being adverse to Roche and others, they appealed to this court. Opinion states the case.

Moore, the plaintiff in error, was plaintiff, and the Norfolk and Western Railroad company was defendant. The judgment being in favor of the said company, the plaintiff moved the case here on writ of error. Opinion states the case.

J. Hill was plaintiff and Thomas J. Lee’s administrator was defendant. This case is the sequel to Lee v. Hill, 84 Va., 919.

Sanford and others were defendants. The bill in this case was filed in June, 1889, by the appellant, alleging that he was the husband, during her life, of one Mary J. Furlong, deceased, who died suddenly and intestate on the 11th day of January, 1888, seized and possessed of large and valuable estate, both real and personal, leaving him her surviving, and three children by a former marriage, who are the appellees; that during the life of the said wife the property had been…

Truslow were complainants, and James H. Wilkinson was defendant. Decree being adverse to defendant, he appealed. Opinion states the case.

<p>Error to judgment of circuit court of Smyth county, rendered on the 6th day of September, 1888, affirming a judgment of the county court of said county, rendered on the 16th day of May, 1887, upon an appeal from the action of the board of supervisors of said county disallowing a certain claim of the Norfolk & Western Railroad Company against Smyth county, to recover from said county certain taxes alleged to have been wrongfully levied and collected by said county from said company for the year 1880.</p>

Rorrer, Charles F. Rorrer and John W. Childress were defendants. The decree being adverse to the defendants, they appealed. Opinion states the case.

<p>Sale of Liquobs—Social clubs—Case at bar.—Liquors kept by a club in its rooms, and served only to its members and their invited guests—the members alone paying therefor—and the money being used to replenish the stock, but insufficient for the purpose: held, not such sale of liquors as requires a license under Va. Acts 1889-90, p. 242.</p>

B. Chaffin, James B. Harvie and' Robert H. Gilliam, partners trading as R. B. Chaffin & Co., were plaintiffs, and the Commonwealth of Virginia was defendant. The judgment being adverse to the defendant, she brought the case here for revision. Opinion states the case.

<p>Appeal from' decree of circuit court of Fairfax county, rendered November 26th, 1889, in the cause wherein Henry B. and others are complainants, and George A. Bohrer and others-are defendants. The decree being adverse to the complainants, they obtained an appeal to this court. Opinion states, the case.</p>

The plaintiff in error, Peter Perrin, was, on the 3d day of November, 1890, indicted in the county court of Gloucester county as follows: “ That Peter Perrin, on the 20th day of October, 1890, in the said county, a certain leather pocketbook, containing one hundred dollars in United States currency of the value of one hundred dollars; one check for the payment of ten dollars and seventy-nine cents, signed by S. Tourtelott & Co., and payable to it.

H. Wythe Davis was plaintiff and Gol. John W. Gordon was defendant. The object of the suit was to compel specific performance of a certain contract for the sale and purchase of real estate; which contract was entered into by and between Ohewning & Rose, real estate agents, and Dr. H. Wythe Davis, on the 12th of January, 1889, whereby Ohewning “Richmond, Va., January 12th, 1889.

Persinger’s executrix was complainant, and F. J. Chapman and Clementine P. Chapman, his wife, were defendants. The suit was to collect the amount of a bond executed (February 14th, 1883) by F. J. Chapman as principal and his wife as surety, to the testator for the sum of $2,492.81.

Waller. The verdict was guilty of murder in the first degree, and, by the judgment, he was sentenced to be hanged. Opinion states the case.

Ferguson Beach, executor of William N. McVeigh, deceased, was defendant. The action was founded on the following bond: “§10,000. Richmond, Va., Jan’y 9th, 1878. In consideration of professional services rendered to me by John Howard, Esq., I owe, and hereby promise to pay to him, ten thousand dollars. Witness my hand and seal, this day and year above written.

This was the second conviction of Watson for the homicide committed December 26th, 1886. The first conviction was brought here on writ of error, and the judgment was reversed March 7th, 1889, for misdirections to the jury. See 85 Va., 867. Upon the second trial, had in said circuit court, plaintiff in error was again convicted of murder in the first degree, and the case brought here again on error. Opinion states the case.

<p>1. Statute op Limitations—Judgment liens.—In April, 1887, suit was brought to enforce the liens of two judgments, one dated February 23, 1866, the other dated November 2, 1866, both duly docketed, but execution had been issued on neither : held, right to enforce had ceased by limitation. (Code, 3573, 3577 and 3578.)</p> <p>2. Idem—Departure from State—Comparison of cases—Case at bar.—In Mcklin’s Ex’or y. Carrington, 31 Gratt., 219, it was laid down that debtor’s removal from the State operates, propria vigore, to obstruct prosecution of plaintiff’s right. In Wilson v. Koontz, 7 Cranch, 202, construing the same statute, it was held that removal of defendant must have actually obstructed plaintiff. In the case here plaintiff was not actually or constructively obstructed.</p> <p>3. Idem—Sale of lien—Subject.—Sale of real estate whereon the judgment is previously a lien is not, of itself, an obstruction of plaintiff.</p> <p>4. Domicile—Change of—Proof.—Party must reside in new place with intent to remain there, in order to acquire a new domicile; and it is for the alleger of the change to prove it.</p> <p>5. Registry Acts—Parol purchasers.—Where parol purchaser takes actúa', visible and notorious possession and pays the entire purchase-money, a subsequent judgment against his vendor is no lien on the land. Floyd v. Harding, 28 Gratt., 401. ' '</p> <p>6. Idem—Auctioneer’s memorandum.—This writing, though sufficient to satisfy the statute of frauds, is not such contract in writing as the registry acts require to be recorded, and may be treated as a parol contract.</p>

The action is trespass on the case in assumpsit against the Wytheville Insurance and Banking Co. by the defendant in error, T. B. Stultz, on a policy of insurance.

<p>Appeal from decree of circuit court of Eluvanna county, rendered April 12th, 1889, in the chancery cause on an attachment, wherein the Columbia Gold Mining Company, a corporation, was complainant, and the Edicha-l Bullion Company, a corporation chartered under the laws of the State of New Jersey, and J. B. Baker, J. W. Woodside and M. R. Kirkpatrick, non-residents, were defendants. The decree being adverse to the defendants, they appealed. Opinion states the case.</p>

Ship-man and Priscilla, his wife, and Joseph A. Rice for defendants.

J. Corbin was defendant. On the 13th of July, 1887, one S. F. Cobbs, in the city of New York, executed his promissory note for $3,000, payable ninety days after date, to his own order, at his office, 48 Broad street, in that city. It was admitted that by the laws of New York this note was negotiable. It did not appear, however, that by those laws it was protestable.

<p>Error to judgment of circuit court of Amherst county rendered April 12th, 1889, in an action of debt wherein Lemuel Turner’s administrator was plaintiff, and Wm. Dillard, J. T. Dillard and five others were defendants. Judgment being adverse to Wm. Dillard and three other defendants, they appealed. Opinion states the case.</p>

Terry, the plaintiff in error, was sentenced to confinement in the penitentiary for the term of two years. Opinion states the case.

The bill was filed by Bradley, as guardian of his three infant children, alleging that they were seized in fee of certain real estate situate in Manchester, the income from which was inadequate for their maintenance and education; that their interests would be promoted by a sale of the property and an investment of the proceeds in desirable interest-bearing stocks, and praying that a sale be ordered.

<p>1. Multifabiousness.—It is not multifarious for a bill to seek to subject judgment debtor’s alleged interest in lands, chattels, &c., to the payment of plaintiff’s debt.</p> <p>2. Husband and Wife— Witness.—Wife is competent to testify in her own behalf in a suit wherein the validity of a sale to her is litigated and her husband is a party but has no interest.</p>

<p>Application for mandamus filed in the original jurisdiction of this court by George Coleman against William H. Sands, alleged registrar of Shoemaker’s district in Henrico county. Opinion states the case.</p>

Bland and George C. Bland, partners trading under the name of J. T. Bland & Bro., were plaintiffs, and Sylvanus Goddin was defendant. The decree being adverse to the defendant, he appealed. Opinion states the case.

A. Page, administrator of S. S. Bibb, deceased, against the Norfolk and Western Bail-road Company, to recover damages for the alleged killing of the plaintiff’s intestate by the carelessness of the defendant company in running one of its trains in and upon a certain bridge over Big Otter river in the county of Bedford, and on the line of said railway, and then in course of construction by one Fred.

Slaughter, administrator de bonis non of Samuel Garland, Sr., c. i. a., against Burr Garland’s administrator de bonis non, c. t. a., and as such substituted trustee for Paulina B. Morris and her children, in the place of Charles Y. Morris, Sr., deceased, and others; which is a sequel to the case of Garland v. Garland, 84 Va., 181.

S. Fredenheim, are complainants, and M. S. Fredenheim and others, are defendants. The object of the suit was to annul, on account of fraud, a deed of trust executed by said M. S. Fredenheim April 27th, 1889, to Herman Rosenberg, trustee, and to enjoin the former and her husband and the said trustee from disposing of the trust effects, and to have a receiver appointed to take charge -of and sell them according to the terms of the deed. Opinion states the case.

Petition of Henry DeB. Clay, a legalized voter, for a writ of mandamus to compel W. P. Ballard, registrar of election district No. 1, in Newport News, Warwick county, to allow him to inspect and take a copy of his registration books. The defendant demurs to, and also answers the petition. In his answers he states that he never refused to allow an inspection of the books, but denies the petitioner’s right to demand or have copies of them.