Volume 89 — Virginia Reports

Argued in Richmond. Decided in Wytheville. Appeal from decree of the chancery court of the city of Richmond, pronounced January 8, 1891, in the cause wherein Bettie Thomas Lewis and her husband were complainants, and W. R. Quarles and Mann S. Quarles, curators of the estate of William R. Thomas, deceased, and Legh R. Page, his administrator, were defendants.

Argued at Richmond. Decided at Wytheville. Error to judgment of- circuit court of city of Fredericksburg, rendered at its November term, 1890, in an action of covenant, wherein George E. Chancellor’s executor was plaintiff and Chancellor Baily was defendant. The judgment being adverse to the defendant, lie appealed. Opinion states the case.

Argued at Richmond. Decided at Wytheville. Error to judgment of hustings court of city of Manchester in. a prosecution by the said city against John H. Foster- for obstructing a public street. Judgment being against Foster, he appealed. Opinion states the case.

<p>Heirs and Distributees—•Purchase of encumbered land—Primary fund— Case at bar.—A farm encumbered by trust and other liens was granted by husband to wife’s use. She enjoined sale under trust deed, alleging it had been satisfied, and that before becoming aware of its satisfaction she had made payments, and prayed for account of liens and payments. Eeport showed first lien to be the trust debt, and the second her own, for moneys paid by her. Sale was decreed. She purchased the land and paid the cash, and gave her bonds for the deferred payments, and then died. Her heirs petitioned the court to require the bonds to be paid out of her personal estate, to the exoneration of the land, which descended on them.-</p> <p>Held :</p> <p>Under the circumstances, the land, and not the personalty, is primarily bound for the payment of those bonds, as the purchase was simply a mode of getting rid of the liens paramount to those owned by her, and was a personal undertaking that was merely collateral, and did not release the land from its primary liability under the trust deed. But this is material only as between her heirs and her distributees.</p>

Argued at Richmond. Decided at Wytheville. Error to judgment of circuit court of city of Richmond in an action for libel in prematurely filing a mechanic’s lien, wherein Moore was plaintiff and Rolin defendant. Court below sustained demurrer to declaration, and plaintiff appealed.. Opinion states the case.

Argued at Richmond. Decided at Wytheville. Appeal from decree, of circuit court of Fauquier county, pronounced in the chancery cause wherein Pearre Bros. & Co. were complainants and John F. Rixey, trustee, and others, were defendants. The decree being adverse to the defendants, they appealed. Opinion states the case.

<p>1. Sanity—Burden of proof—Rules.—“The legal presumption fe that all men are sane, and the burden of proof is on him who alleges unsoundness of mind in an individual.” Miller v. Rutledge, 82 Va. 867. “ Mere weakness of the understanding is no objection to a man’s disposing of his own estate.” Beverley v. Walden, 20 Gratt. 147. “ The testimony of witnesses present at the factum, is more to be relied on than the opinion of witnesses based upon facts which may be true, and yet not be the result of unsoundness of mind.” Ibid. 147.</p> <p>2. Deeds—Unsoundness of mind —Undue influence—Case at bar.—In case here the evidence establishes the grantor’s competency and the absence of undue influence, and the fact that the value of the property conveyed was not more than an adequate compensation for the services rendered by the grantee to the grantor:</p> <p>Held :</p> <p>The decree establishing the deed should not be disturbed.</p> <p>8. Idem—Innocent purchasers—Case at bar.—Property conveyed by the deed claimed to have been executed under undue influence, having been advertised for sale by the grantee for two years, without any objection from those adversely interested, and without notice of their claims to the innocent purchasers :</p> <p>Held :</p> <p>The deed must stand in favor of those purchasers, whether it was or was not executed under undue influence.</p>

<p>Error to judgment of circuit court of Tazewell county, rendered December 11th, 1891, affirming judgment of county court of said county, whereby the plaintiff in error, "William Davis, was, in accordance with the verdict of the jury in the trial of an indictment for the murder in the first degree of one Charles Jones, sentenced to death by hanging. Opinion states the case.</p>

<p>1. Homicide—Murder in first degree—Case at bar.—Prisoner and deceased, his mistress, left their companions in a public road, in the afternoon, and disappeared in the woods. She had about $30 (part silver) in a purse. She was never seen alive afterwards. An hour later he was seen half a mile from where her body-was found, and avoided recognition. He left the state that night, and did not return for several years. Her body was found in a secluded place in the woods, partly consumed by fire, with a bullet-hole in her head, such as would be made by a ball from the pistol then.in his possession. The coin and purse could not be found. He gave a false name at the place where he stayed that night, and when arrested several years afterwards.</p> <p>Held :</p> <p>The verdict of guilty of murder in the first degree should not be disturbed, as the circumstances show that robbery was the motive for the homicide.</p> <p>2. Evidence—■Res gestx.—The commonwealth was properly allowed to prove as part of the res gestx that on the day of her death the deceased was on her way to a neighbor’s house, near which her body was found.</p> <p>3. Defective Plea.'—A plea that the indictment was found by a defectively impanelled grand jury, wherein no defect was specified, was properly rejected.</p>

<p>Liquor—Selling without license—Local option.—In a county where the . “ local-option law ” (Code 1887, ch. 25) has been adopted, the sale of liquor without license is none the less liable to prosecution as a violation of the general revenue laws.</p>

Simmons, was, in accordance with the verdict of the jury in the trial of the indictment against him for the murder in the first degree of one James Howell, sentenced to death by hanging. Opinion states the case.

<p>Argued at Richmond. Decided at Wytheville. Appeal from decree of the circuit court of Culpeper county, rendered September 12th, 1890, in the chancery causes of Withers' Ex'ors v. Kennedy, Trustee, Withers' Ex'ors v. Withers, &c., and Kendrick, &c., v. Withers et al., dismissing a bill or petition of J. J. Mosby, executor of Jannette A. Mosby, deceased, and others, for a review or rehearing of a decree of March 15th, 1889, in the said causes. The said Mosby and others appealed from said last-named decree. Opinion states the case.</p>

<p>1. Railroad Companies—Passengers — Employees —The difference between the degree of care which such companies owe to a passenger and to an employee is vast. As to the former, they are held liable for the.slightest negligence; as to the latter, they are bound to use only ordinary care.</p> <p>2. Idem—Case al bar.'—Plaintiff, an engineman, started his train from a station, and ran 730 yards, attaining a speed of twenty or twenty-five miles an hour, when he saw freight-cars about forty yards ahead, which had been stored on a “ passing siding,” but had got loose and moved down on the main track. Plaintiff reversed his engine and jumped, breaking his leg. The freight-cars had displaced the switch, so as to expose the danger signal, which plaintiff might have seen, as well as the cars, in ample time. Besides, he was approaching a bridge in course-of construction at a forbidden rate of speed.</p> <p>Held :</p> <p>He was not entitled to recover, as he was guilty of contributory negligence.</p> <p>3. Idem—Negligence—Presumption.-—In case of an employee the court will not presume there was negligence in using the “ passing siding ” for storing cars.</p> <p>4. Idem—Rule—Absence of signal.—Plaintiff’s’ contention, that fog prevented him from seeing the danger signal, was untenable, because of the rule that “ a signal imperfectly displayed, or the absence of a signal where one is usually shown, must be regarded as a danger signal.”</p> <p>5. Idem—Double track—Bulletins.—The road was being double-tracked when the accident occurred, and bulletins were posted calling attention to the importance of keeping his train under control at such points:</p> <p>Held :</p> <p>Equivalent to actual notice.</p>

<p>Error to refusal of the judge of the circuit court of Wise county, on 29th February, 1892, to allow a writ of error and supersedeas to the judgment of the county court of said county, rendered February 1th, 1891, whereby Talt Hall, the plaintiff in error, was, in accordance with tbe verdict of the jury at the trial of the indictment 'against him for the murder of one Enos B. Hylton, sentenced to be hanged by the neck until dead. Opinion states the case.</p>

<p>Personal Representatives—Deed of gift.—Where intestate, in her lifetime, by deed of gift, disposed of her entire personal property, so that there was nothing to go, or that did go, at her death, into the hands of her administrator—</p> <p>Held :</p> <p>A bill against him for an accounting should have been dismissed.</p>

<p>Appeal from decree of corporation court of the city of Roanoke, rendered in a chancery cause wherein Martha L. Vaughan was complainant and Andrew Lewis and another were defendants. The decree being adverse to the complainant, she appealed. Opinion-states the case.</p>

<p>Corporations—Purchase of land—President’s authority—Ratification.—The president of a land company signed a contract for the purchase of certain real estate, without authority from the board of directors or the charter of the company, but the purchase was reported to the company, and it accepted the same, capitalized the land, laid off lots, sold part of its stock, ratified the act of the president in selling part of the land, offered the rest for sale, and agreed to issue its bonds and pay for the land.</p> <p>Held :</p> <p>Ratification of the purchase, though the minutes of the company showing these facts were not signed.</p>

<p>1. Municipal Improvements—Condemnation of land—Assessments for benefits—Case at bar.—G owned a vacant corner lot, fronting 23 feet on Granby street and 39 feet on Plume street. City of Norfolk proposed to widen Plume street ten feet. Abutting land-owners refused to sell. Condemnation proceedings were resorted to under the charter, corresponding to Code 1873, chapter 56, §§ 6-10. Commissioners reported that of C’s lot 10 feet fronting on Granby street, running back on Plume street 39 feet, must be,taken, and that he was entitled to $1,200 for the land taken and for the damages to the residue above the peculiar benefits. City accepted and paid the estimate. About five months later the city assessed a tax of $1,500 against the residue for the peculiar benefits or betterments.</p> <p>Held :</p> <p>Under its charter the city had no authority to impose any such burden.</p> <p>2. Constitutional Law—'Quxre.—Whether or not the Constitution of Virginia, Art. X., § 1, which declares that “ taxation, whether imposed by the state, county, or corporate bodies, shall be equal and uniform,” and that “ no one species of property shall be taxed higher than any other species of equal value,” allows any legislation authorizing local assessments on the part of a city for public improvements ?</p>

<p>Appeal from decree of circuit court of Patrick county, rendered October, 1889, in the cause wherein the appellants, B. G. Penn & Co., were complainants, and Henry S. Bahnson and others were defendants. Opinion states the case.</p>

Smith and M. J., his wife, were complainants, and Sarah Ann Smith, widow, and Henry Collup and others, children of Adam Collup, deceased, were defendants. The decree being adverse to the defendants, they appealed. Opinion states the case.

the trial of an indictment against her for the murder of one R. J. Cunningham, sentenced to confinement in the penitentiary for the 'term of six years. Opinion states the case.

<p>Appeal from decree of corporation court of city of Bristol, rendered -March term, 1892, on a hill filed by Lore, Davault, and McKarney, to review a decree of that court rendered December 5th, 1890, and affirmed by this court on appeal January 25th, 1892, (88 Va. 716,) to which case this is the sequel. Opinion states the case.</p>

Spoor was complainant and William P. Douglas and others were defendants. The decree being adverse to the defendants, they appealed. Opinion states the case.

<p>1. Railroads—Trespassers—Fits—Contributory negligence—Case at bar.— Plaintiff’s intestate, subject to epileptic fits, attempted to cross railway at a point beyond a street crossing, where there was a ditch four-feet deep, and where crossing was forbidden. In so doing he -was seized with a fit and fell on the track, and was killed by a freight train, backing slowly, with bell ringing.</p> <p>Held :</p> <p>Deceased was guilty of contributory negligence, and also a trespasser ; and verdict for his administrator should be set aside.</p> <p>2. Declaration—Demurrer.—It was proper to have overruled demurrer to declaration grounded on the statement that the place of the accident was “ at, near, or upon the crossing.”</p>

P. Sheffey, receiver, was plaintiff, and Harman Newberry and others were defendants. The judgment being adverse to the defendants, they obtained a writ of error and supersedeas. Opinion states the case.

<p>Appeal from decree of hustings court of city of Roanoke, rendered May 30th, 1892, in the chancery cause wherein the Rockingham Investment Company was complainant and Thomas E. Davis et al. were defendants. The decree being adverse to the latter, they appealed. Opinion states the case.</p>

Meade was complainant and the Norfolk and Western Railroad Company was defendant. The decree being adverse to complainant, he appealed. Opinion states the case.

<p>Argued at Wytheville. Decided at Staunton. Error to judgment of circuit court of Bland county, rendered at its April term, 1891, in an action of detinue wherein the plaintiff in error, Samuel H. Newberry, was plaintiff, and Samuel W. Williams'was defendant. Opinion states the case.</p>

<p>1. Specific Pekfokiiaxce—Fraud—Evidence.—Where defendant was applied to by plaintiff’s agent to sell timber, and refused to sell it without the land, and H, who accompanied agent, represented himself as agent of persons known to defendant as responsible, and that he would buy the land for them if he w'ould sell the timber to plaintiff, defendant was unable to read or write, but executed the contract on the representations of H and plaintiff’s agent that he was selling both land and timber, but in fact the contract contained no provision for sale of the land:</p> <p>Held :</p> <p>Ko specific performance of the sale of the timber should be decreed, because of the fraudulent procurement of the contract.</p> <p>2. Witnesses—Husband—Competency.—Where wife has no separate interest in the result of the suit, though made a party, her husband is a competent witness in his own behalf.</p>

Argued at Richmond. Decided at Staunton. Appeal from circuit court of Prince Edward, rendered in a cause wherein Thomas P. Fitzgerald, administrator of John W. Gentry, deceased, was plaintiff, and the administrators of one Fauber and others were defendants. The decree being adverse to the defendants, they appealed. Opinion states the case.

O. Maddux, Martin Maddux, F. W. Maddux, and Stoneburner & Richards were complainants, and L. Triplett, Jr., trustee, and others were defendants. The decrees being adverse to the complainants, they appealed to this court. Opinion states the case.

Nancy B. McGuffin and others were defendants. The decree being adverse to the complainants, they appealed. Opinion states the case.

Error.to judgment of the circuit court of Wythe county, rendered March 10, 1892, affirming a judgment of the county court of that county, sentencing the prisoner, in accordance with the verdict of the jury, to nine years’ confinement in the penitentiary, for maliciously shooting one Edward Galloway. Argued at Wytheville. Decided at Staunton.

<p>Error to judgment of'circuit court of Wise county, rendered at the December term, 1891, in a cause wherein William Kelley was complainant and the appellant, P. W. Hardin, was defendant. Opinion states the case.</p>

<p>Error to judgment of corporation court of city of Winchester, in a prosecution, of the plaintiff in error, Whitlock, for practicing as a physician, in violation of Acts 1883—’84, page 597, § 92, whereby he was, in accordance with the verdict of the jury, sentenced to pay a fine of $30. Opinion states the case.</p>

<p>Error to judgment of circuit court of Tazewell county, rendered at May term, 1891, in an action wherein the defendant in error, Turner, was plaintiff, and the plaintiffs in error, Sexton & Houston, were defendants. Opinion states the case.</p>

Argued at Richmond. Decided at Staunton. Appeal from decree of hustings court of city of Roanoke, rendered May 4th, 1891, in the chancery cause wherein Samuel H. Gish and Nancy E. Gish, (formerly Nancy E. Coon,) are complainants, and W. R. Moomaw, W. J. Blair, L. Blair, Jr., C. A. Moomaw, D. C. Moomaw, Joseph O. Moomaw, Lucy A. Neale, and J. F. Christian and Lucy Coon ; Alberta (or Bertie) M. Albert and her husband, Floyd B. Albert; H. S. Coon, J. W. Coon, J. D. Coon ; Alice…

Upon a rehearing, allowed on the petition filed by the appellees, including the children of John Ooon, Patterson Coon, and Robert Coon, of the decree in this cause rendered September 22d, 1892.

<p>Error to judgment of circuit court of Franklin county, affirming judgment of county court of said county, rendered at its August term, 1891, whereby the plaintiff in error, William Brown, was, according to the verdict of the jury in the trial of an indictment against him for arson, sentenced to death by hanging. This case has twice been before this court on writs of error. See 86 Va., p. 935, and 87 Va., p. 215. Opinion states the case.</p>

<p>Argued at Wytheville. Decided at Wytheville. Appeal from decree of circuit court of Wythe county, rendered at September term, 1890, in a suit wherein the appellant, the Pulaski Iron Company, was complainant, and George W. Palmer and wife were defendants, the object of the suit being to correct a mistake in the deed from the latter, conveying to the complainant certain mineral interests. Opinion states the case.</p>

W. Picklesimer was plaintiff and the Richmond and Danville Railroad Company was defendant. The judgment being adverse to the company, it brought the case here on writ of error. Opinion states the case.

Argued at Staunton. Decided at Richmond. Error to judgment of circuit court of Augusta county, rendered at the May term, 1891, in an action of ejectment wherein Sarah A. Andrews and others were plaintiffs and the Roseland Iron and Coal Company was defendant. The judgment being adverse to the plaintiffs, they obtained a writ of en-or to this court. •Opinion states the case.

Argued at Wytheville. Decided at Richmond. Error to judgment of circuit court of Smyth county, at March term, 1891, in an action of ejectment wherein James C. Campbell, trustee for Thomas L. Preston, et al., were plaintiffs, and the Holston Salt and Plaster Company was defendant. The judgment being adverse to defendant, it obtained a writ of error to this court. Opinion states the case.

<p>1. Dedication—Case at bar.—No particular form or ceremony is necessary to dedicate land to public uses; the assent of the owner, and the fact of the land being used for public purposes, are all that is requisite. In 1789, with the consent and approval of the owner, the body of Mary Washington was interred in a burial lot, and forty-two years later a monument was erected over her grave by an association . organized. for that purpose. The corner-stone was laid with civic and military ceremonies by the President of the United States. Since then no one has claimed any private ownership over this spot of ground.</p> <p>Heed:</p> <p>This constituted a complete dedication of the tomb to public uses.</p> <p>2. Iíeservations—Option—Case, at bar.—The deed granting to the defendant certain land, containing within its bounds the said burial-ground and monument, reserved both, and defendant never claimed title thereto, but gave plaintiffs an option agreeing to sell a tract “ containing about two acres, with the Mary Washington monument and the marble shaft thereon,” in which option he used the language quoted merely to describe the tract. The evidence, in an action against defendant for breach of contract, showed that the option was procured by the false pretenses of the plaintiffs, for purposes other than those designed by him.</p> <p>Heed :</p> <p>The plaintiffs cannot recover.</p> <p>3. Brokers—Power to sell—Power to buy.-—Where owner constituted certain brokers agents to sell his land at an agreed price on commission—</p> <p>Held:</p> <p>Such agents could not buy for themselves at the price named.</p> <p>4. Idem.—Where the option paper left it doubtful whether it gave power to buy as well as to sell, the courts will not infer that the optionee was entitled to become the purchaser.</p>

Argued at Staunton. Decided at Richmond. Appeal from decree of circuit court of Augusta county, rendered on December 5th, 1889, in the consolidated canses of The Bergner & Engel Brewing Company v. Jerram et als.; Stace, Trustee, v. Bumgardner, Trustee, et als., and Bumgardner, Trustee, v. Stace, Trustee, et als.

J. Ford,, trustee, was plaintiff, and the Commonwealth of Virginia was defendant. The judgment being in plaintiff’s favor, the commonwealth brought the case here on writ of error. Opinion states the case.

<p>Error to judgment of circuit court of the city of Petersburg, rendered January 4th, 1892, in a suit by David Dunlop against the Commonwealth of Virginia, for the purposes mentioned in Code, § 408, as amended and re-enacted by act of February 22d, 1890, entitled “An act to amend and re-enact § 408 of the Code, in reference to proceedings to try the genuineness of coupons.” The judgment being adverse to the commonwealth, it obtained a writ of error to this court. Opinion states the case.</p>

<p>Husband and Wipe—Witnesses.'—"Where husband and wife are both parties to a suit, in which the latter’s interests are involved, he is not a competent witness for or against her.</p>

Judgment being for the plaintiff for the possession of the land' in controversy, the defendant obtained a writ of error to this court. Opinion states the case.

were plaintiffs and E. F. Burch & Co. were defendants. The judgment being against the latter, they obtained a writ of error to this court. Opinion states the case.

<p>1. Criminal Proceedings—Indictment—Time.—An indictment is sufficiently certain as to time when it alleges that an offense was committed on a certain day, ‘‘ about the hour of twelve o’clock in the night of that day,” and means in the night after sun-down of that day.</p> <p>2. Idem— Witnesses—Directory.—Code, § 3984, requiring names of witnesses to be written at foot of indictment, is merely directory, and their omission is not fatal to its validity.</p> <p>3. Idem—Continuance.—The question as to a continuance is a matter in the discretion of the court; but, if the ruling be plainly erroneous, this court will reverse the judgment. Hewitt’s Case. 17 Gratt., p. 827.</p> <p>4. Idem—Presence of prisoner—Record.—A person indicted for felony must be shown from the record to have been personally present at every stage of the prosecution; nor can he waive the right to be present; and entry upon the record, “ This case was continued for the defendant,” does not show that he was personally present,'as it is a settled principle that the presumption that a court of general jurisdiction acts rightly cannot supply ail essential part of the record.</p>

J. Bosher, George W. Mayo, F. 0. Christian, and John O’Toole, suing for their own benefit and that of all other stockholders having like interest with themselves, being those who subscribed to the stock of said company and were required to pay for the same at par, and being all the stockholders of the company except the promoters named in the bill, who would come in and contribute to the expense of the suit, are complainants, and the Richmond and Harrisonburg Land Company,…

Bowles, in her own right, and as administratrix of W. J. Bowles, deceased, and as next friend to her infant daughter, Myrtle O. Bowles, was complainant, and John C. Brauer, J. B. Elam, and Thomas French were defendants. The decree being adverse to the complainant, she appealed to this court. Opinion states the case.

Strayer against M. Long’s executor and others, plaintiff’s creditors, to set aside sale of real estate made under a former decree. Court below confirmed the sale, and plaintiff appealed to this court. Opinion states the case.

Dripps were complainants and R. H. Bond and Philip H. Pry, clerk of the county court of said county, were defendants.

S. Kerfoot’s executor was complainant and Mamie A. Kerfoot and others were defendants. The decree being favorable to the complainant, the defendants appealed. Opinion states the case.

Hurt and certain children of Alexander Brooks were complainants, and Sarah E. Brooks, the widow, and other children of the said Alexander Brooks,t and Perrow and Staley, .trustees, were defendants, the object of the suit being to have the land devised, as the bill alleges, to Alexander Brooks for life, and at his death to his children, partitioned, or sold for distribution of the proceeds. The decree being adverse to complainants, they appealed. Opinion states the case.

<p>Res Judicata—Second appeal— Matters once determined, on appeal in this court cannot be reopened; and this is true whether those matters were actually adjudicated or not. If they could have been adjudicated in that suit, they are equally settled.</p>

Sipe, trustee, was complainant, and Martha A. Kyger and others were defendants. The decree being for the complainant, Martha A. Kyger appealed to'this court. The case is as follows : On the 23d of December, 1883, T. A. Carrickhoff and E. J. Carrickhoff purchased of J. A. S. Kyger and Joseph H. Argabright an engine and saw-mill, for which six bonds were executed, aggregating the sum of $1,115. Of these bonds two were made payable to Kyger; the others to Argabright.

D. B. Norris, the appellant here, was plaintiff, and W. H. Lake and others were defendants; the case being as follows: The appellant, a judgment creditor of the appellee, William H. Lake, filed his bill, at the March rules, 1890, to set aside, on the ground of fraud, a deed of trust executed by Lake, on the 30th of August, 1889, to James V. Brooke and R. Taylor Scott, trustees, to secure certain debts therein mentioned.

Hisle’s executor was complainant and William G. Rudasill and Raney Rudasill were defendants. The decree being adverse to the complainant, he appealed. Opinion states the case.

C. Gibson and wife, appellants here, were jdaintiffs, and J. Ambler Brooke, administrator d. b. n. c. t. a. of John Cook Green, deceased, and, others, were defendants; the case being as follows: The appellants, Gibson and wife, filed their bill in May, 1888, for an injunction.

<p>Error to judgment of circuit court of Northampton county, rendered April 23d, 1892, affirming judgment of county court of that county, sentencing the plaintiff in error, George Drier, to be hanged for the murder of Fannie McFadden. Opinion states the case.</p>

<p>Equity Jurisdiction—Specific performance—General relief.—To buy land with, A loaned W money, to be returned in six annual payments, and secured by trust deed. The land was conveyed to W by deed delivered to M, to be held until W executed the trust, deed. This he never did, nor paid either principal or interest. A filed her bill for specific performance.</p> <p>Held :</p> <p>As the six years has already expired, and specific performance, as prayed for, would be practically useless, this court makes the debt a charge upon the land, requiring it to be sold if tlie.money be not paid by a given day.</p>

<p>Criminal Proceedings—Voluntary manslaughter—Case at bar.—Upon consideration of the evidence in this case—</p> <p>Held :</p> <p>The verdict of voluntary manslaughter was properly rendered, and no error in refusing to set it aside, nor in giving and refusing the instructions mentioned in the opinion.</p>

Jones, as executor of John C. Hughes, deceased, and, as such, trustee of John Letellier, was complainant, and the appellants, Joseph Wells, Emanuel Matthews, John H. Matthews, and George T. Litchfield and Ida W., his wife, and others, were defendants.

<p>Employees—Disregard of rules—Case at bar.—In action for personal injury, the plaintiff, a brakeman, knowing the rules of the defendant railroad company forbidding coupling or uncoupling cars except with a.sti.ck, and going in between cars with engine attached, went between them to uncouple cars with a stick, which was inefficient for that purpose, because coupling-pin was tight and short. Another brakeman, without plaintiff’s knowledge, signalled engineer to reverse engine enough to relieve pressure on pin. Plaintiff’s hand, being between bumpers coming together, was caught and mashed.</p> <p>Held :</p> <p>He cannot recover, because his injury was the prpximate result of his own disregard of the rules.</p>

, was plaintiff, and J. R. Hockaday was defendant. The judgment being adverse to the plaintiff company, it obtained a writ of error to this court. Opinion states the case.

Argued at Staunton. Decided at Richmond. Appeal from two decrees of circuit court of Rockingham county, rendered October 28th, 1890, and April 16th, 1891, respectively, in a suit wherein Z. D. Shafer was complainant and B. B. Armentront and G. W. Berlin were defendants. The decrees being adverse to the defendants, they appealed. Opinion states the case.

B. Benton, was, in accordance with the verdict of the jury in the trial of an indictment against him for breaking and entering a house in the night-time, with intent to steal, sentenced to'two years’ confinement in the penitentiary. Opinion states the case.

W. Loftus was complainant and James M. Maloney was defendant.

<p>Error to judgment of circuit court of Middlesex county, rendered April 25th, 1891, in an action at law in which John FL Fields is plaintiff and Southey Grenils and John Grenils are defendants. The judgment being against the plaintiff, he brought the case here on writ of error. Opinion states the case.</p>

By an act of assembly, approved February 5, 1886,' the counties of Cumberland and Powhatan were each authorized to subscribe forty thousand dollars of the stock of the company, provided that at a… Held: in the manner set forth in sections 62 and 63 of chapter 61 of the Code of 1873, the vote should be in favor of such subscription. Acts 1885—’86, p. 65.

<p>Appeal from decree of circuit court of Loudoun county, rendered October 23d, 1890, in a cause wherein Hutchison’s administrator was complainant and Benjamin Mershon’s administratrix and others were defendants.</p> <p>Hutchison’s administrator filed his bill February, 1881, instituting a creditor’s suit against the estate of Benjamin Mershon, deceased, praying an account of the transactions of the administratrix upon the estate of the said Benjamin, and seeking to subject his real estate to the payment of his debts. The said Benjamin having died without issue, his brothers and sisters, and the descendants of such as were dead, were made parties defendant. The bill set forth that the plaintiff was the creditor of said Benjamin in several bonds, which had been partly paid by the 'administratrix out of the personal assets; and set forth the real estate of said Benjamin, as follows : That his father owned a tract of land in Loudoun county of two hundred and thirty acres, which descended to his children—Benjamin aforesaid, Wyatt, James, Henry, Sarah B., John, Samuel, and Thomas Mershon. Sarah B. had married one James on the 29th of March, 1-856, in the state of Louisiana. Thomas, James, and Wyatt Mershon, and Sarah B. James signed a certain paper writing, purporting to be a conveyance to said Benjamin Mershon of all of their interest in said tract of two hundred and thirty acres, in consideration of the payment by said Benjamin of all the father’s debts. The said paper, which is claimed to be a good and valid contract, was filed with the bill, and prayed to be taken as part thereof.</p> <p>It was further set forth that the said Benjamin had complied fully with the said contract, dated in 1856, and held it to the time of his death, and that it was still in the possession of his widow. That shortly after the execution of said contract a suit was brought in the circuit court of Loudoun by one Saffer to subject the interest of the said Thomas Mershon aforesaid, the brother of Benjamin, to the payment of the debts of the said Thomas, which interest of Thomas was sold nominally to Benjamin, but paid for by Hutchison.</p> <p>The non-resident parties were proceeded against by order of publication.</p> <p>The bill was never answered, but at the-April term, 1884, a decree was rendered directing the following accounts: (1) An account of the transactions of the administratrix aforesaid; (2) an account of the debts of Benjamin now unpaid; (3) an account of his interest in the real estate in the bill mentioned and described, and of any other real estate owned by him at the time of his death; (4) an account of the interest of the plaintiff in said real estate.</p> <p>In April, 1885, a commissioner, to whom the matter had been referred, reported—(1) an account of the transactions of the administratrix ; the balance in hand, which had been disbursed in the payment of debts, among them in part the debts of the plaintiff; (2) án account showing the debts of Benjamin Mershon, aggregating $1,332.40, May 1st, 1885, and among them the debts of the plaintiff, with certain credits, and debts due Moore’s testator of $658.69, with certain credits first deducted; (3) an account showing that the real estate of Benjamin at the time of his death was 153J acres of the 230-acre tract, or four undivided sixths thereof; (4) that complainant owned one sixth and Henry Mershon’s heirs one sixth. At the term a decree was rendered confirming this report, and at the October term, 1886, a decree was rendered for a sale of this real estate.</p> <p>At the October term, 1888, Sarah E. Douglas and B. D. James filed their petition in the cause, claiming to be the heirs-at-law of Sarah B. James and James Mershon, and denying that the paper writing, purporting to convey the said three shares of the said 230 acres to Benjamin, had. any validity, claiming their share of this land, and asking to have all the debts of Benjamin barred by the statute of limitations excluded. At the January term, 1890, a decree was rendered admitting these as parties defendant. At October term, 1890, the said Douglas and James filed their demurrer to the bill, and certain exceptions to the above-mentioned commissioner’s report in the cause. The grounds of demurrer stated were (1) for want of equity ; (2) for multifariousness; (3) because the demands therein set up were stale. The grounds of the exceptions were stated—(1) because he reported a number of debts barred by the statute of limitations ; (2) because all the demands reported were stale demands ; and asked that their petition be treated as a petition to rehear the decree of April, 1885, confirming the commissioner’s report. "Whereupon the circuit court, on the 23d day of October, 1890, rendered a decree dismissing the complainant’s bill, but without prejudice. Erom this decree the plaintiff appealed.</p>

<p>1. Landlord and Tenant—Estoppel.—The general rule that tenant cannot deny his landlord’s title is not affected by the fact that the tenant is in actual possession under a contract of purchase at the time he accepts the lease. Locke v. Frasher, 79 Va. 409.</p> <p>2. Contract—Rescission.—A written contract, creating an equitable interest in land, may be rescinded, waived, or abandoned by a subsequent distinct and independent parol agreement between the parties, partially acted- on or fully performed by them. Phelps v. Seely, 22 Gratt. 573.</p> <p>3. Case at Bar.—J bargained for land, and, at his request, K paid for it, and took a deed to himself. J took possession, and made several small payments to K; but later, on his default, K, with J’s verbal' consent, put the property in the hands of a real estate agent, who rented it to J.</p> <p>Held :</p> <p>J having admitted himself to be the tenant of K, was estopped to claim any rights under the above deed treated as a . mortgage.</p>

and others were complainants and W. E. Green, trustee, and others were defendants. The decree being in favor of complainants, the defendants appealed. Opinion states the case.

G. Galliher, was plaintiff, and the Norfolk and Western Railroad Company was defendant. The jury rendered a verdict in favor of plaintiff for $650 damages. There was a motion to set the verdict aside and grant a new trial, upon the ground that the verdict is contrary to the law and the evidence. This motion the court overruled, and entered judgment upon the verdict.

<p>Error to judgment of circuit court of city of Alexandria, rendered March 20th, 1890, in a suit wherein the plaintiff in error, George T. Raub, was plaintiff, and Benjamin L. Otterback and Henry B. Otterback were defendants. Opinion states the case.</p>

<p>Appeal from decree of corporation court of city of Bristol, rendered at April term, 1892, in a cause wherein John McCrowell was complainant and the City of Bristol and J. L. C. Smith, treasurer, were defendants. The decree being-adverse to plaintiff, he appealed.</p> <p>The object of the suit was to perpetually enjoin and restrain said city and its said treasurer from collecting the amount of a certain local assessment levied by said city as and for the cost of a granolithic sidewalk pavement constructed and laid along the front of said McCrowell’s property, on Main street, in said city of Bristol.</p> <p>The material facts, so far as they can be collected from a wretchedly made-up record, are these:</p> <p>Prior to and at the time of laying the pavement in question, the appellant was the owner of two lots, fronting 198 feet on Main street, in the city of Bristol; and, in the year 1889, prior to the improvement and assessment in question, he had, at his own expense, laid a pavement eight feet in width along the entire front of his said property, a part of which was of dressed stone and the residue of a composition known as concrete.</p> <p>Some time in the year 1890 (precisely when does not appear) the city of Bristol entered into a contract with the Miller Paving Company for laying a granolithic pavement or sidewalk along said Main street, from Virginia street to Scranton street, which space includes the said property of the appellant. Subsequent to said contract, and during the said year of 1890, said Miller Paving Company, acting under the supervision and direction of the city engineer and street committee of said city of Bristol, tore up, destroyed, and hauled away the pavement constructed by the appellant at his own expense as aforesaid, and laid along the front of appellant’s said property a granolithic pavement or sidewalk, ten feet wide, at a cost of $394, the whole of which, it is claimed by said city, was regularly and rightfully assessed against the appellant, and is, by virtue of the charter and certain ordinances passed by the council of said city, collectable as other taxes are collected by said city.</p> <p>Later the treasurer of said city presented to the appellant for payment tax tickets for two thirds of said assessment, the amount thereof claimed by said city to be then due ; but the appellant, denying the validity of the charge against him, refused to pay the same; and thereupon said J. L. C. Smith, treasurer of said city, levied upon a certain sixteen horsepower engine, the property of the appellant, but not then, nor-at any time, upon either of the said lots of appellant, in front of which said granolithic pavement was laid. The said treasurer having levied upon said engine for the purpose of subjecting the same to sale for the payment of said tax tickets, the appellant presented his bill, setting forth substantially the facts above stated, and, denying on several grounds the validity of said assessment, prayed for an injunction restraining said city of Bristol and said J. L. C. Smith, treasurer, from proceeding to sell said steam engine, and from enforcing the collection of said taxes. And on the 6th day of February, 1892, the injunction was awarded according to the prayer of the bill.</p> <p>The city of Bristol answered, denying every material allegation of the bill touching the alleged irregularity and invalidity of the assessment in question, and insisting that' the same was made in strict accordance with the charter and ordinances of said city, and is, therefore, in every respect, regular, valid, and binding.</p> <p>The defendant, J. L. C. Smith, treasurer as aforesaid, also answered, admitting that he, as treasurer of said city, made the levy upon the property, as set forth in the bill, for the purpose of satisfying tax tickets in his hands amounting to the sum of $262.66 i, that being the sum then due on said assessment under ordinances of the city. In other respects his answer is wholly immaterial.</p> <p>The cause, having been matured, was, on the 9th day of April, 1892, brought on and heard upon the bill of the complainant, the answers of the defendants, exhibits filed, and general replication to said answers, and on the motion of the defendants, by counsel, to dissolve the injunction theretofore awarded in the cause, when a decree was rendered therein, dissolving said injunction and dismissing the complainant’s bill; and from that decree the case is here on appeal.</p>

Young, Jr., and others, were complainants, and N. P. Young and others were defendants. The decree being adverse to the complainants, they appealed. Opinion states the ease.

<p>Error to judgment of circuit court of Wise county, rendered on the 17th day of May, 1892, affirming the judgment of the county' court of said county, rendered on the 8th day of December, 1891, whereby the plaintiff in error was convicted of murder in the second degree, and sentenced to the penitentiary for eighteen years.</p> <p>The case is, briefly, as follows: On the 4th day of July, 1891, the plaintiff in error, Webster Snodgrass, Morgan Thacker (now dead), and others, in considerable numbers, were assembled at a pic-nic at a town called Morton, in the county of Wise.</p> <p>The plaintiff in error is shown by the evidence to have been passing about the grounds for some time, exhibiting a pistol; and he came up to Jones’ Spring, and said: “A man has to die before the sun goes down, and another one, if he says anything.” Pulling out his pistol, he further said : “ This is what can do it.” Morgan Thacker (the deceased) was coming down out of the crowd, and he pointed his finger at him, and said : “ Yonder comes the very d--d man now.” This was between 12 and 1 o’clock of the day Thacker was killed by the plaintiff in error. A little later, on the same day, he was seen by a witness standing off talking angrily and profanely with the deceased, pistol in hand, raising and lowering it. He approached this witness (Robinette), saying : “Mr. Robinette, G— d--you; what have yon got to do with this?” A few seconds after, Robinette having passed' on and into a store near by, and another witness, who was friendly with the plaintiff in error, standing facing him with his hand on his right shoulder, the deceased being behind witness, in front of the plaintiff in error, and a few feet off— variously stated between six and ten feet off—the plaintiff in error held his pistol under witness’ arm and fired it, and Thacker fell mortally wounded. The accused said nothing whatever—not a word, although a fellow-man, slain by his hand, was lying writhing in agony almost at his feet. This witness (Culbertson), actuated by a friendly feeling for the accused, (as be says, liking him better than he did the deceased,) said to the accused, “ if that was an accident, claim it as such.” Thus prompted, the accused claimed it as an accident. And this is the theory of the defense.</p> <p>The accused stood silent for a brief time, then walked out; but he went out either sideways or backward, holding his pistol in his hand, and pointing it in the direction of where the wounded man was.</p> <p>The shooting was in a saloon. The accused had been in the house several minutes, when the deceased came in with a companion, when in a minute the shot was fired.</p> <p>The witness, Robinette, who has been referred to as having been asked, “What have you got to do with it?” by the accused, being in some conversation with the wounded man, seeking to console him, and who was assuring him that his friends would take care of the matter, was again rudely accosted by the accused with : “ G— d-you, you have said too much already,” and would have assaulted the witness if the guard liad not held him.</p> <p>After his arrest, he said the deceased had cut his throat (referring to an antecedent difficulty with the deceased), and if some of them did not look out they would go the same way he had gone. This was ten or fifteen minutes after the shooting. He also said: “ That d-d rascal [meaning deceased] has always been trying to cut me with a knife, and shoot me.” And again referring to deceased, he remarked : “G— d-him; he was not fooling with Oscar Emmons when he was fooling with me.” He was here referring to a difficulty the deceased had had with a man named Emmons.</p> <p>On several occasions during that day he was making threats to kill two men, without naming them. One man was to be killed, and another also, if he said anything. (This was, possibly, a reference to the witness, Eobinette, whom he abused and attempted to assault after he had shot the deceased.)</p> <p>The evidence shows that the “ accused was drinking some,” in the language of one witness—drunk and staggering, in the language of others; but there is no evidence to show that he was crazed or unconscious, or in such a condition as not to know what he was doing. And he boasted that he would not run away, because “ we ” had too much money for that.</p> <p>At the trial there were numerous exceptions taken to the several rulings of the court, which are assigned as error here. The jury found the accused guilty of murder in the second degree, and fixed the term of his confinement in the penitentiary at eighteen years ; and the trial court overruled the motion of the accused to set the said verdict aside and grant him a new trial, and rendered judgment in accordance therewith; and the accused excepted.</p> <p>The case was carried, by writ of error, to the circuit court of Wise county, where the said judgment was aifirmed May 17th, 1892. Whereupon the case was brought to this court, by writ of error from the said judgment of the circuit court, affirming the said judgment of the county court.</p>

<p>Error to judgment of circuit court of Culpeper county, rendered September 14th, 1892, affirming a judgment of the county court of said county rendered July 23d, 1892, whereby Henry Field, the plaintiff in error, was, in accordance with the verdict of the jury in the trial of an indictment against him for the unlawful shooting of Andrew Gordon, sentenced to confinement in the penitentiary for two years. Opinion states the case.</p>

Argued at Wytheville. Decided at Richmond. Error to judgment of circuit court of Roanoke county, rendered at its October term, 1891, in an action of detinue wherein Mrs. Massie Sutphin, alias Pollard, was plaintiff, and Garland Brown was defendant. The judgment being against defendant, lié brought the case here on writ of error. Opinion states the case.

<p>Common Carriers—Contract—Liability.—The defendant company agreed to deliver cattle, from a point on its line to a point on the line of the Virginia Midland railway, to the latter company at Lynch-burg; and plaintiff agreed to load, transfer, and unload them at his own cost. At Roanoke, a regular feeding-place for stock in transitu, necessary arrangements for unloading, feeding, and reloading were provided by the company, and there a mistake in reloading occurred, by defendant’s default, whereby some of plaintiff’s cattle were sent to another point and other cattle were mixed with his.</p> <p>Held:</p> <p>The company was liable for the consequent loss.</p>

<p>Appeal from decree of circuit court of city of Norfolk, rendered June 21, 1890, in a suit in equity, commenced in the-circuit court of Norfolk county, and afterwards removed to-the first-mentioned court, wherein Sarah J. Wells was plaintiff and the Sewell’s Point Guano Company and others were-defendants. Opinion states the case.</p>

<p>Appeal from decree of circuit court of city of Alexandria, rendered at March term, 1891, in a cause wherein Nina Smith, by her husband and next friend, Allen Smith, was complainant, and George Mason’s executor and others were defendants. The decree being adverse to the complainant, she appealed. Opinion states the case.</p>

Blakey and others were plaintiifs and N. Morris was defendant; The object of the suit was to recover a tract of land, situated in said county, and containing 146 acres, 2 roods, and 22 poles, on which the defendant now resides.

<p>Appeal from decree of circuit court of Nottoway county, rendered September 19th, 1891, in a suit in equity wherein Margaret A. Leath and Joseph E. Leath, her husband, the appellants here, were plaintiffs, and Meredith Watson and others were defendants. Opinion states the case.</p>

H. Ryan was complainant and P. A. Krise was defendant. The decree being adverse to complainant, he appealed. Opinion states the case.

E. Clark was complainant and P. A. Krise was defendant. The decree being adverse to complainant, he appealed. Opinion states the case.

<p>1. Municipal Corporations—Powers—Taxation.-—The powers of a municipal corporation are to be construed strictly, and the power to tax must be plainly and unmistakably conferred; and, in the absence of legislative authority, the corporation has no power to levy back taxes; and where the charter empowers the council to “ order the collection of taxes for any year,” this refers to taxes previously assessed, there being nothing in the charter authorizing a retrospective assessment.</p> <p>2. Mandamus—Comjjliance.—A mandamus awarded to compel town council to “assess and collect taxes for corporation purposes on the property of the Terminal Company, as upon the property of other persons .and corporations in the said town,” the answer avers the property of the company was duly assessed for taxes for municipal purposes for the year 1892.</p> <p>Held :</p> <p>The averments of the answer being taken to be true, they show that the mandamus has been complied with.</p>

Thom, trustee under the assignment, dated April 9th, 1885, of John B. Whitehead and. wife, was plaintiff, and Bichard H. Baker, administrator de bonis non of Wm. H. Turner, deceased, was defendant. Judgment being for plaintiff, defendant brought the case here on writ of error. Opinion states the case.

The evidence was heard at the trial both for plaintiff and defendant, and a verdict was rendered for plaintiff for $2,650, and the defendant moved the court to set aside the verdict and grant a new trial, but the court overruled the motion and rendered judgment in accordance with the verdict, and the defendant excepted and brought the case to this court by writ of error.

<p>1. Creditor’s Bii.l—Liens—Lis pendens.—A creditor at large, successfully suing to set aside a deed conveying property in fraud of creditors, lias a lien on the property from time of suit brought; and a creditor, who comes'into the suit, shall have a like lien from the filing of his petition ; but, as against creditors, with or without notice, and purchasers for value without notice, from the time of his filing his memorandum of Us pendens.</p> <p>2. Judgments.—Such lien is a lien only upon .the property conveyed, and not, like the lien of a judgment, on all of debtor’s estate.</p> <p>3. Receivers—Fi. fa.—Personalty in the hands of a receiver cannot be levied on, but the fi. fa. creates a lien thereon.</p>

Harris was complainant and Rhoads Fisher, executor of Samuel Harris,, deceased, was defendant. The decree being adverse to defendant, he appealed. Opinion states the case.

<p>Error to judgment of circuit court of Greene county, rendered at its November term, 1890, in an action of ejectment wherein the defendants in error, George E. Blakey and others, were plaintiffs, and Valentine Roach and Polly Ann Roach were defendants. Opinion states the case.</p>

Statham for a peremptory writ of mandamus against Benjamin Blackford, superintendent of the Western Lunatic Asylum, and others. From an order denying the writ, petitioner appeals. Opinion states the case.

<p>1. Appellate Practice—Instructions—Exceptions.—Where -there is no formal bill of exceptions signed by the judge of the trial court to a ruling thereof upon instructions asked to be given to the jury, this court cannot consider the propriety of such ruling, though the record shows that the counsel did, during the trial, make objection to such ruling. Fry v. Leslie, 87 Va. 275.</p> <p>2. Contributory Negligence—Children—Parents.—In an action for damages for negligent injuries to a child, the contributory negligence of its parent is not imputable to the child. The law fixes no arbitrary age at which the child-becomes capable of contributory negligence; but, between the ages of seven and fourteen, the presumption is that he is non sui juris.</p> <p>3. Negligent Injuries—Case at bar.—Considering the evidence disclosed by the record in the case here—•</p> <p>Held :</p> <p>There was no negligence on the part of the defendant company, whereby its car ran over and killed the plaintiff’s intestate.</p>

H. Hawthorne and others (the children of Henry C. Hawthorne, deceased,) were complainants, and Josiah Beckwith and others were defendants. The decree being adverse to complainants, they appealed. Opinion states the case.

<p>Appeal from decree of circuit court of Nottoway county, rendered March 13th, 1891, in a cause under the style of Epes and Others v. Williams and Others. The decree being adverse to complainants, they appealed. Opinion states the case.</p>

Cottrell and Harriet Ann, his wife, were complainants, and Charles T. Watkins, and John S. Wise and T. M. Logan, trustees, were defendants.

The material facts are these: On the 27th day of August, 1891, the said Jesse Mitchell was indicted in the county court of Amelia county for rape. Held: the prisoner, on the calling of the case for trial, demurred generally to the indictment; which demurrer, upon argument by counsel, and on consideration, was overruled by the court.

The suit was brought by the administrator of George Ficklin, deceased, and other judgment creditors of Richard S. Rixey, to subject certain real estate, situate in Culpeper county, to the satisfaction of the complainants’ judgments. The circuit court upheld a settlement of a portion of the land sought to be subjected upon the debtor’s wife in consideration of her relinquishment of her right of dower, and from that decree the complainants obtained an appeal.

<p>Appeal from decree of circuit court of Smyth county, rendered September 2, 1891, dismissing petition of Hezekiah Harman, appellant here, praying that a judicial sale, previously confirmed at a special term, be set aside, which sale was made under a decree in the suit of McMullin v. McMullin’s Adm'r et als., pending in said court. Opinion states the case.</p>

G-. Dulaney’s executors were plaintiffs and Robert Seville was defendant. The judgment being adverse to the defendant, he obtained a writ of error and supersedeas. Opinion states the case.

<p>"Will—Fraud.—By his will, made the night before his death, testator devised his three farms to two of his four children for life, remainder to the infant children of one of the two, with whom he lived, disinheriting his two other children—an afflicted son and daughter, with eight helpless children, who had always lived wholly on his bounty. A suit was brought to set aside the will on the ground of fraud. The attesting witnesses testified that the testator did not ask them to sign the will; that they did so at the request of one of the devisees, John, and that they did not believe that the testator saw them sign it, or was competent to make a will. It was also in evidence that John had complete control over his father.</p> <p>Held :</p> <p>The will should have been set aside.</p>

Turner was plaintiff and James ET. Bethune and A. D. Payne, trustee, were defendants. On the 20th day of January, 1882, James TST.

Dew was plaintiff and David J. Baldwin and George W. Brown, partners as Baldwin & Brown, and J. H. Webb-Peploe were defendants. The judgment being adverse to plaintiff, he obtained a writ of error and supersedeas.

<p>1. Married Woman—Separate estate—Powers.-—A deed whereby land is conveyed to a married woman lor life, with power of appointment, as well as power to sell and re-invest the proceeds, does not give her a right to mortgage the property.</p> <p>2. Idem.—An instrument executed by a married woman as a mortgage on her separate estate, but invalid as such, her husband not uniting in its execution, does not create an equitable lien on the estate.</p> <p>3. Resulting Trust.—Such trust must arise, if at all, by the payment of the money by the person claiming the same at the time of the execution of the conveyance; and, where a trustee subsequently advanced money to pay off a lien reserved in the conveyance for the purchase-money of the land—</p> <p>Held :</p> <p>No trust results in his favor.</p> <p>4. Subrogation.—Where such trustee takes from his cestui que trust (a married woman) an invalid mortgage and bonds, as security for money subsequently advanced by him to extinguish such lien—</p> <p>Held :</p> <p>He is not entitled to be subrogated to said lien.</p>

Acts 1891—’92, p. 626. The title of the act is as follows: “ An act to prevent and punish betting, gambling, and the malting, writing, or selling of books or pools or mutuals on the result of any trotting race of horses, or race of any kind, or on any election, or any contest of any kind, or game of baseball.” The first section of the act makes it “ unlawful for any person or persons, or association of persons, to make, write, or sell books, pools, or mutuals on the result…

and A. H. Griffith’s Sons, respectively, were plaintiffs, and C. A. Wyatt and H. G. Newhall, partners doing business in the name of C. A. Wyatt & Co., and Thomas L. Dunn were defendants.

J. Brugh was complainant and Mary W. T. Gray-bill and Lewis H. Graybill, her husband, and A. Nash Johnston were defendants. The decrees being adverse to the latter, they appealed. Opinion states the case.

K. Estes, administrator of C. A. Stratton, deceased, was plaintiff, and F. K. N. Gardner, C. H. Walpole and Anna M., his wife, who was, before marriage with said Walpole, Anna M. Gardner, and J. R. Peebles, trustee, and Ernest Madden were defendants.

, Portaux, Raleigh, Elizabeth, and Harriet Robinson were defendants. The decree being adverse to the latter, they appealed to this court. Opinion states the case.

<p>1. Commissioners in GiiaxoerY'—Report—Evidence.—The commissioner need not return the evidence upon which his report is based, in the absence of any directions so to do. Where a judgment is reported as a lien, and the report is confirmed without exception—</p> <p>Held :</p> <p>This court will not disturb the confirmation.</p> <p>2. Stay Law—Levy of fi. fa.—Satisfaction—Case at bar.—With the report was returned an execution endorsed to the effect that on April 14th, 1861, a fi. fa. had been levied on one slave, the property of defendant, and held up by order of plaintiff. Ou April 30th, 1861, the stay law was enacted, and continued in force until emancipation.</p> <p>Held:</p> <p>It is not to be piresumed from the levy that the judgment was satisfied.</p>

Vaughn and Orville M. Moore, infant children of Joseph B. Moore, deceased, who sue by their next friend, Kennely N. Vaughn, were complainants, and Weldon Moore, Isaac Moore, and O. A. Swiney were defendants. The decree being adverse to complainants, they appealed. Opinion states the case.

R. Hughes, sheriff administrator, was complainant, and R. E. Farris and others were defendants. The decree being adverse to the defendants, they appealed. Opinion states the case. Argued at Wytheville. Decided at Richmond.