Cornell University Library The original of tliis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924017698840 Cornel) University Library KFV2445.A245 A General index of Grattan's Virginia re 3 1924 017 698 840 GENERAL INDEX OF Grattan's Yirginia Reports, FEOM FIRST TO ELEVENTH VOLUME INCLUSIVE, BY A.. B. aXJIGON^, OP THE RICHMOND BAR. J. W. RANDOLPH : 121 MAIN STREET, RICHMOND. 1859. ANALYTICAL DIGESTED INDEX or GRATTAN'S VIRGINIA REPORTS. ABSENT DEBTORS. See Absewt Defendants. ABSENT DEFENDANTS. 1. Qucere. If the Act, 1 Rev. Code, ch. 123, p. 474, authorized proceed- ings in equity against an absent debtor jointly and severally bound with Other persons residing in the state : he having no property 'within the jurisdiction of the court. And if the said act authorized a personal decree against an absent defendant. Mairston el aU. v. Medley, 1 Grat. 96. 2. An absent debtor, who satisfies a decree against himself and a home defendant, is entitled to his effects attached in the hands of the home defendant. Jameson's Adm'x t. Deshields, 3 Grat. 4. 3. The distributable interest of an absent debtor, in an estate, may be subjected in the hands of an administrator, by attachment, to the payment of the absent debtor's debt. Moores v. White et als., 3 Grat. 139. 4. A decree against an absent debtor only stands confirmed, at the ex- piration of seven years, so far as it operates upon the estate of such absent debtor, subject the jurisdiction of the court. Booted Sx'x v. Tompkins' , Trustees. 3 Grat. 98.* 5. A decree in personam against an absent debtor is entitled, in all coI-< • S^e Code of Vn., ch. 17Q, J 13. 2 ABSENT DEFENDANTS. lateral controversies, to the same respect t» which any other decree is entitled. Ibid. 6. A decree against an absent debtor, so far as relates to any proceeding to enforce it, merges the original cause of action, and is prima facw, evi- dence of the demand it establishes. Ibid. 7. No statute of limitations, except that which applies to judgments and decrees, shall apply to a claim evidenced by such decree. Ibid. 8. A decree against an absent debtor, so far as it purports to operate in personam merely, creating a personal charge alone, is not conclusive after the lapse of seven years, but may be shown to be erroneous, either on its face, or by evidence, aliunde. Ibid. 9. Decrees against absent defendants have the same effect and operation as decrees against absent debtors. Ibid. 10. An absent defendant, against whom a decree has been made, cannot appeal therefrom. His only remedy is to petition the court which pro- nounced the decree, to have the error complained of corrected, as provided by 1 Rev. Code, 475. Barbee dk Co. v. Pannill & Co., 6 Grat. 442.* 11. A home defendant, sued with an absent debtor, in a proceeding by foreign attachment, cannot have an interlocutory decree for the sale of land reversed, upon the grounds that the court below did not decree against the absent debtor, or direct the plaintiff to give security as provided by law in behalf of absent defendants. The final decree may provide for these things. Kelly v. Linkenhoger, 8 Urat. 104. 12. An absent debtor had executed a receipt to a heme defendant, for the purchase money of land attached in his hands ; but as the home de- fendant did not pretend to have paid the amount in money, and did not satisfactorially prove the accounts he endeavored to establish, the land was held liable. Ibid. 13. An attaching creditor, who proves his debt, is entitled to a decree in personam against his absent debtor, though the property attached by him may be adjudged to a claimant with a prior right thereto. ScAofield v. Cox et als., 8 Grat. 533. f 14. In a proceeding by foreign attachment against two absent debtors, one of whom appears and answers the bill ; upon a joint decree against both, the one appearing may appeal from the decree, the other cannot. The decree, if erroneous, will be reversed as to both. Lenows v. Lenow, 8 •Grat. 349. 15. In a, suit against an absent defendant, the recital in a decree that " the cause came on as to him upon bill, &c., and order of publication duly " See Code of Va., ch. 170, } 13. t See No. 18. ACCOMPLICES.— ACCOUNT. 3 executed," is conclusive, that the order was duly made, published in the newspaper, and posted at the front door of the courthouse. Craig v. Sebrell, 9 Grat. 131. 16. The act of April 3d, 1852, Sess. acts, ch. 95, ? 1, p. 78, gives a remedy in a court of equity to a creditor against his absent debtor, where the debtor has estates or debts due to him, in the county or corporation where the suit is brought. O'Brien et als. v. Stephens et als., 11 Grat. 610. 17. The affidavit required, to authorize a creditor to sue out an attach- ment against the effects of an absent debtor, may be made before or after the bill is filed. Ibid. 18. If an absent defendant does not appear in the cause, there can be no personal decree against him. The attached effects can alone be subjected. But if he appear, there may be both a personal decree against him and a decree subjecting the attached effects. Ihid.* 19. If the absent debtor appear, there may be a personal decree against him, though the attachment has not been sued out or levied ; or after his appearance the attachment may be sued out and his effects subjected. Ibid. 20. A decree procured by fraud against an absent defendant, after his death and without suggesting his death, or reviving the suit against his representative or heirs, shall not stand confirmed after the lapse of seven years,t but may be set aside upon a bill against the heirs at law of the party procuring the decree. The Stat. 1 Rev. Code, p. 475-6, | 4, does not apply to such a case. Evans et als v. Spurgins et als, 11 Grat. 615. ACCOMPLICES. 1. The confessions or admissions of an accomplice, in a felony, made after tTte commission and completion of the offence, are not competent evi- dence against a prisoner, even though a previous conspiracy and combi- nation between the prisoner and the accomplice, to commit the felony, has been proved. Hunter's case, 7 Grat. 641. ACCOUNT. 1. The Court of Appeals will not reverse a decree against distributees, because no account of administration was taken, wher« the administrator has answered that he has no assets in his hands and knows of none that may come to his hands. Hairston et als. v. Medley, 1 Grat. 96. •See No. 13. t See Code of Va., ch. 170. } 13. 4 ACTIONS. 2. Testator leaves a will requiring that the balance of his slaves (a portion of them having been previously disposed of in his will) to be equally divided among his children, or their value: Held, 1. That the children must account for the slaves delivered to them, and their increase, as of their value at the time of the division of the estate, or if any of the slaves have been sold and the value at the time of the division cannot be ascertained, then for their value at the time of the sale. 2. If any of the slaves delivered to the children have died, the loss is to be borne by the estate. Kean v. Welsh et als., 1 Grat. 403. 3. The sureties of an administrator of a surety of an administrator, are not entitled to have a resettlement of the administration accounts of the last mentioned administrator, upon his intestate's estate, which have been before settled, in a suit by creditors and distributees of said intestate, against his administrator and sureties, before the sureties asking the settle- ment of the accounts were made parties defendant in the cause. Coohus et als. V. Peyton's Ex^or et als., 1 Grat. 432. 4. An error appearing upon the face of a commissioner's report will be corrected by the Appellate Court, though not excepted to in the court below. Ibid. 5. In a settlement of a guardian's accounts, of several wards, they should be stated separately, at least from the time when their expenses differed in amount. Armstrong's heirs v. Walkup et als., 9 Grat. 372. ACTIONS. 1. A party having covenanted to do two things, one of which he has done, the court in order to effect justice, construed the covenants to be independent, and allowed the plaintiff to maintain his action for the part done ; though the defendant may set up any injury, by reason of the failure of the plaintiff to perform any of the acts he had covenanted to perform, as a defence pro tanto to the action. Todds v. Summers, 2 Grat. 167.* 2. W., professing to act as agent, purchases goods ; they are sent to him with an invoice made out against his professed principal M., and forwarded to M. The seller informs M. of these facts and demands payment ; and before M. pays for the goods, brings suit against him. Held, He may maintain his action. Downer & Co. v. Morrison, 2 Grat. 237. 3. An action cannot be maintained to recover money lent, to be bet upon an election. Machir v. Moore, 2 Grat. 257. 4. A party having a legal title to and having had possession of a slave,. • See Code of Va., ch. 172, J 5, et aeq. ACTIONS. 5 though fraudulently acquired, may maintain an action against any third person aiding said slave to escape. Law v. Law, 2 Grat. 366. 5. An action may be maintained on a parol contract for the sale of a slave, although there is a bill of sale, under seal, executed for the slave, stating only a part of the parol contract. Brent v. Richards, 2 Grat. 539. 6. In trespass quare clausum f regit, the charge in the declaration, that the defendant ejected the plaintiff on a certain day, and kept him so ejected "for a long time, viz: from thence hitherto," held good on de- murrer. Bailey v. Butcher, 6 Grat. 144. 7. A joint action of trespass, assault and battery lies against husband and wife, for an assault committed conjointly by both. Roadcap and Wife V. Sipe, 6 Grat. 213. 8. In a joint action of assault and battery against husband and wife for a joint assault, there may be a verdict and judgment against the one and in favor of the other. Ibid. 9. A sum of money claimed by A. and B., to be ratably divided between them, is paid to them jointly, and ratably divided between themselves. C. is entitled to a portion of the money instead of B., and thereby A.'s proportion will be lessened. C.'s remedy is against each separately, and not jointly, for the amount received by each, to which he is entitled. Moffett V. Bowman, 6 Grat. 219. 10. Services performed with a view to a legacy, though not generally the ground of an action, become so, if performed at the request of the testator, or if he has promised to pay for the services, either before or after they were performed. Jincey el als. v. Winfield's Adm'r et als., 9 Grat. 708. 11. A party who has been guilty of any fraud or illegal conduct in the transaction, cannot recover back money which he has paid upon a con- tract, which has been wholly rescinded, or the consideration of which has wholly failed. Johnson's Ex'x v. Jennings' Adm'r, 10 Grat. 1. 12. A remainderman, not having the right of possession of a slave at the time it is sold by the tenant for life, cannot maintain trover for its recovery. Phillips et als. v. Mariiney's Ex'or, 10 Grat. 333. 13. An insolvent debtor, N., purchases slaves at a public sale, pays for them through another and has the receipt taken in the name of, and the slaves delivered to his sister, an infant, living with her father. N., after- wards, took the insolvent debtor's oath, on a ca. sa., and the sheriff brought separate actions of detinue against the father and sister to recover the slaves. Held, 1st. Though N. never had possession of the slaves, but they were transferred by a fraudulent arrangement to a third person, the sheriff may recover them from the third person. 2d. Though the sister, 6 ACTIONS. to whom the slaves were delivered, was an infant at the time when tha action was instituted, yet as she did not set up the infancy to defeat the action, and as it may reasonably be inferred from the evidence that she was of full age, when the cause was heard upon a demurrer to the evi- dence, and appeared and defended herself by counsel, she is bound by the judgment. 3d. Though the slaves were sent to and remained upon the premises of the father, yet, as his daughter lived with him and claimed the slaves and he did not, the action cannot be maintained against him. B. Siaton v. Fitman, Sheriff; Pitman, STieriff v. B. Staton, 11 Grat. 99. 14. An action on the case for fraud, in selling an unsound slave to the plaintiff, which he was induced to purchase by means of a false and fraudulent warranty of soundness; or of a fraudulent concealment of the unsoundness of the slave, cannot be maintained' against the personal representative of the vendor; and if there be judgment in such an action in favor of the plaintiff, the error will not be cured by the statute of Jeofails. 1 Kev. Code, 1819, eh. 128, § 103, p. 511. Boyle's Adm'r v. Overly, 11 Grat. 202.* 15. In such a case, though there is a verdict for the plaintiff, judgment should be rendered for the defendant; for an action is misconceived in the sense of the statute of Jeofails, only in a case where, upon the trial, the proofs show a cause of action, fit to be asserted, in a form different from that adopted. The defendant, then, is held liable, upon proof of a liability, and if no objection is made to the form of action, until after verdict, the defect in the form of action is cured thereby. Ibid. 16. The statute of Jeofails, though it will aid defects, whether of form or substance in pleading, where a portion of the matter pleaded is appro- priate, does not apply to cases in which the matter pleaded is, in all it« parts, merely nugatory, setting forth no cause of action, or no ground of defence. Ibid. 17. A personal representative cannot be sued as such for services, or goods furnished to his testator's or intestate's estate, since his death. FUzhugVs Ex'or v. G. Fitehugh, 11 Grat. 300. 18. It seems that an action will not lie against the personal representar tive, as such, for the funeral expenses of his testator or intestate. Ibid. 19. Where the demand, in all the counts of a declaration is such, that an action cannot, in any case, be sustained upon them, against the personal representative as such, then the description of him as such, may be treated as surplusage, and the judgment may be against him personally. Ibid. 20. But if the demand set out in one of the counts, may possibly be maintained against the personal representative as such, then the descrip- • See Code of Va., ch. 130, J 19, et seq. ADMINISTRATION. 7 tion of him as such, cannot be regarded as surplusage, and if the action cannot be maintained against him in his representative capacity, it must fail. Ibid. 21. In some cases where money has been paid for a deceased person, an action for money paid will lie against the personal representative as such: as where money has been paid as joint security. Ibid. 22. An action may be maintained at common law by a legatee, for the recovery of his legacy, against an executor who has assented to the legacy and waived a refunding bond. But the intention to dispense with the refunding bond must be very clear. Nelson's Adm'r v. Cornwell, 11 Grat. 724. ADMINISTRATION, 1. The sentence of a court of probat, fairly obtained and pronounced upon the merits, in a case in which a paper, propounded as a will by the nominated executor, is rejected, some of the next of kin interested to defeat it, being parties defendant, is conclusively binding upon a legatee in said paper, though he was an infant at the time and no party to the pro- ceedings. Wills V. Spraffgins, 3 Grat. 555.* 2. The court granting administration, or admitting an executor to qualify as such, has a discretion in regard to the amount of the security. And the general practice of requiring security in double the estimated value of the estate, is a proper exercise of that discretion. Atkinson v. Christian, 3 Grat. 448. 3. The court granting administration or probat, originally, alone has authority to take additional security, when it may be required. And if it is directed in an appellate court, the order is directory only to the court granting the administration or probat. Ibid. 4. The other good security, which the court is authorized to require by the 41st sec, ch. 104, 1 Rev. Code, is not in lieu of the former security, but in addition thereto, and both are bound. Ibid. 5. In determining the amount, for which other good security ought to be required, regard ought to be had to the value of the estate remaining unadministered, including any accession thereto, beyond the original estimate thereof, and to the extent of the available security, still furnished by the original bond. Ibid. 6. A husband who has relinquished his marital rights to his wife's * See Code of Va., ch. 122, } 129, et teq. 8 ADMINISTRATOR.— ADMISSIONS.— ABATEMENT. property, is not entitled to administer upon her estate. Charles T. Charles, 8 Grat. 486. 7. The principles upon which, and the order in wMch, real and personal property will be applied to the payment of debts. Elliott v. Carter et als., 9 Grat. 541.* 8. Where all a testator's property is charged with the payment of debts, devisees must contribute ratably with legatees. Ibid.* See Pbrsonal Repbbsentatite. ADMINISTRATOR. See Persokal Repeesentatite. ADMISSIONS. 1. A paper signed during the life-time of an intestate, (and not appear- ing to have been signed as agent of the intestate,) by one who afterwards becomes his administrator, cannot be read as evidence, in a suit against the administrator, as the admission of a party on the record. Gaines' Adm'r v. Alexander, 7 Grat. 257. 2. The admissions of an accomplice in a felony, made after {he com- mission and completion of the offence, are not competent evidence against a prisoner, even though a previous conspiracy and combination, between the prisoner and the accomplice, to commit the felony, has been proved. Hunter's Case, 7 Grat. 641. / 3. In an action of debt, under the plea of paymenc, the defendant may give in evidence the parol admissions of the plaintiff, that but a portion of the debt claimed is actually due. Bice's Ex'or v. Aunatfs Adm'r, 8 Grat. 557. ABATEMENT. 1. A plea in abatement to the jurisdiction of the court, on the ground that the defendant did not reside, nor the cause of action arise in the county where the suit was brought, is defective unless it state the resi- dence of the defendant, and where the cause of action did arise. Middle- ton V. Pinnell, 2 Grat. 202. 2. If an heir is sued, before proceedings are had against the personal * See Code of Va., ch. 130, j 25, el seq. ADULTERY AND FORNICATION.— AD QUOD DAMNUM. • 9 representative, he must take the objection by plea in abatement.. Rogers T. Denham's Tieirs, 2 Grat. 200. 3. In a plea in abatement of a former action, there must be an aver- ment of the pendency of the action at the time of the filing of the plea. Archer v. Ward, 9 Grat. 622. See Pleading. ADULTERY AND FORNICATION.* 1. Adultery and fornication, committed with a slave, is a violation of the act 1 Rev. Code, ch. 141, § 6. Jones^ case, 2 Grat. 555. 2. Simple incontinence is not punishable at oommon law. Ihid. 3. Illicit intercourse, between an unmarried man and a married woman, is fornication in the man. Lafferty's case, 6 Grat. 672. 4. An indictment for lewd and lascivious cohabitation, charging the of- fence from a day prior to the day when the statute went into effect, but as continuing to a day after the commencement of the act, is good. Nichols and Janes' case, 7 Grat. 589. 5. The act 1 Rev. Code, ch. 141, § 6, p. 555, which makes the oaths of .wo credible witnesses necessary to a conviction in a case of adultery and fornication, is repealed by ch. 27, | 2, p. 164, of the Criminal Code, Sess. acts, 1847-8. Cregor's case, 7 Grat. 591. o. One credible witness is now sufficient to authorize a conviction for adultery or fornication. Ihid. AD QUOD DAMNUM.t 1. On application for leave to erect a mill, or other machine, the peti- tioner must show he has proceeded in the mode prescribed by law to suit his particular case. Whitworth and wife v. Puchett, 2 Grat. 528. 2. If the party applying for leave to erect a mill, owns the land on only gne side of the stream, the proceeding should be under the Ist, 2d and 3d sec. of the act, 2 Rev. Code, ch. 235; and if, in such case, he pro- ceeds under the 4th sec, the court should quash the writ and inquisition. Ihid. 3. If it appears upon the hearing of the case before the court, that a * See Code of Va. ch. 796, J 6. t See Code of Va., ch. 63. 10 ADVANCEMENT.— ADVERSABY POSSESSION. greater quantity of the land of the adjoining proprietors -will be overflowed than the jury estimated, the inquisition should be quashed and a new -writ directed issue. / id. 4. The court has no authority to increase or diminish the damages to the adjoining proprietors, assessed by the jury. Ibid. 5. The applicant for leave to build a mill, or other machine, is not entitled to the ownership of the land overflowed by the erection of the dam, upon paying the damages assessed by the jury. Ihid. ADVANCEMENT. 1. A father conveys to a child a tract of land in fee, subject to the father's life estate. In bringing this advancement into hotchpot on the partition of the father's estate. Qumre: If the advancement is to be valued as at the date of the conveyance, or at the death of the father. Chin et als. v. Murray et als, 4 Grat. 348. 2. Bonds of a legatee, given to him by his testator after the making of the will, as a donatio mortis causa, with the intention that the legatee shall not account for them, are not an advancement in satisfaction of his legacy. Lee's Ux'or v. BoaJc, 11 Grat. 182.* ADVERSARY POSSESSION.! 1. The demandants in a writ of right, claiming title to land, under a patent from the commonwealth, are entitled to recover the land, though neither they, nor those under whom they claim, have entered and held actual possession under their grant, in the absence of a sufficient legal defence on the part of the tenant. Taylor's devisees v. Burnsides, 1 Grat. 166. 2. If the tenant in the writ of right would protect himself, by the plea of the statute of limitations, he must show that he entered on the land in controversy, claiming the same under his junior grant, when the de- mandants had not actual possession thereof, under their elder patent, and took and held actual possession thereof by residence, improvement, culti- vation or other open, notorious and habitual acts of ownership; and so continued the same, under his claim, for more thau twenty-five years before the commencement of the demandant's suit. Ibid. 3. The possession of the tenant, or those under whom he claims, must have been continuous, and if they have abandoned their possession within * See Code of Vn., ch. 122, } 12. Idem, ch. 124, i 15 t See Code of Vn., ch. 135. Idem, ch. 135, J 38. ADVERSARY POSSESSION. 11 the twenty-five years, the statute of limitations is no bar to the demand- ants title under his elder patent. Ibid. 4. The tenant cannot sustain his defence of continued adversary posses- sion, so as to make the statute a bar, if the demandants, or those under whom they claim, have, within the period of twenty-five years, before bring- ing the action, entered upon the land in controversy, and taken actual possession thereof, by residence, improvement, cultivation, or other open, notorious and habitual acts of ownership. Ibid. 5. The entry of the demandant (or those under whom he claims) upon, and possession of, the land within his elder grant, not embraced by the junior grant of the tenant, cannot oust the tenant, if at the time of the entry of the demandant, the tenant had actual possession of the land embraced by hia grant. Ibid. 6. Qucere, If the entry of the demandant under the elder grant upon land not embraced by the junior grant of the tfenant, will limit the junior patentee's adversary possession to his actual close. Ibid. 7. To constitute an adversary possession of land, there must be an actual occupation of some part of the land in controversy; or the use or enjoy- ment of some part thereof, by acts of ownership equivalent to such actual occupation. Overton's heirs v. Davisson, 1 Grat. 211. 8. When land, which is the subject of controversy, is embraced by con- flicting grants from the commonwealth to difierent persons, and the junior patentee enters thereupon, and takes and holds actual possession of any part thereof, claiming title to| the whole under his grant; such adversary possession of part of the land in controversy, is an adversary possession of the whole, to the extent of the limits of the younger patent ; and to that extent is an ouster of the seizin or possession of the elder patentee, if the latter has no actual possession of any part of the land within the limits of his' grant. Ibid. , 9. In the case last stated, if the elder patentee is in the actual posses- sion of any part of the land in controversy at the time of the entry there- on by the junior patentee, then the latter can gain no adversary posses- sion, beyond the limits of his mere enclosure, without an actual ouster of the elder patentee from the whole of the land in controversy. Ibid. 10. Upon the question of adversary possession, it is immaterial, whether the land in controversy is embraced by one or several coterminous grants of the elder or younger patentee ; in either case, the land granted to the same person, by several patents, is to be regarded as forming one entire tract. Ibid. 11. QtuBre, Whether the possession of the junior patentee will be limited to his enclosure, by' the actual possession of the elder patentee 12 ADVERSARY POSSESSION. of apart of the land embraced in his grant, not embraced within the limits of the grant to the junior patentee. Ibid. 12. To constitute an adversary possession of land, there must be an actual occupation of some part of the land in controversy; or the use or enjoyment of some part thereof, by acts of ownership equivalent to such actual occupation. And such adversary possession cannot be acquired by the open exercise of acts of ownership over the same, falling short of such actual occupation, use, or enjoyment. Ibid. 13. While patented lands remain in a state of nature, they are not sus- ceptible of a disseizin or ouster of, or adversary possession against the elder patentee, unless by acts of ownership effecting a change in their condition. Ihid. 14. A possession of land not held under a grant from the common- wealth, prior to the emanation of a patent therefor to a third person, can- not constitute an adversary possession thereof. Ibid. 15. The elder patent of the commonwealth confers seizin of the land embraced therein, though, at the time of its emanation, there was an actual occupation of the land by another person. Ibid. 16. In a controversy between parties claiming land under the elder and junior patentee, the party claiming under the latter, to protect his posses- sion by the defence of the statute of limitations, must show an actual possession of the lands in controversy, since the emanation of the elder patent, for the period limited by the statute of limitations. Ibid. 17. If the possession of the tenant in possession was sufficient to bar the action of the ancestor of the demandants, at the time of his death, it is sufficient to bar the action of his heirs. Ibid. 18. The possession of one coparcener or tenant in common, being the pos- session of all, no one in possession of the whole subject can avail himself of such possession, as a defence under the statute of limitations, against the rest, without an actual disseisin or ouster of the others. ParceU and wife el als. v. Wilson, 4 Grat. 16. 19. Though a great lapse of time, with other circumstances, may war^ rant the presumption of a disseizin or ouster, by one tenant in common or coparcener, of another not laboring under disabilities, this presumption is a matter of evidence for the consideration of the jury, and not a question of law for the decision of the court upon a special verdict. Ibid. 20. A special verdict in a writ of right, where the defence is the statute of limitations, must find either an actual disseisin or ouster of the demand- ants or those under whom they claim, or facts which in law constitute such actual disseizin or ouster. Ibid. ADVERSARY POSSESSION. 13 21. There can be no adversary possession against the commonwealth, and therefore a junior patentee cannot go behind the elder for the purpose of giving color to his possession prior thereto, but may go behind the elder patent for the purpose of giving color to his possession from, or sub- sequently to, the granting of the elder patent. Shanks el als. v. Lancaster, 5 Grat. 111. 22. It is immaterial whether an adversary possession, under claim of title, be under a good, bad, legal, or equitable title. Ibid. 23. A temporary possession of land, by cutting and sawing timber upon it, is not such adversary possession as will give title. Pasley v. English ei als., 5 Grat. 141. 24. Land was sold by commissioners under a decree, in 1807, and a deed given by them (the purchase money having been paid) to the pur- chaser; in 1835, the commissioners returned their report, which was con- firmed in 1836, though the death of the former had not been suggested; the land having been all the time in the possession of the original owner and those holding under him. The devisee of the purchaser then brought a writ of right to recover the land. Held: The possession of the original owner and those claiming under him, from the time of the sale to the con- firmation of the report, was not an adversary possession. Evans and wife V. Spurgin, 6 Grat. 109. • 25. A. conveys land in trust to secure a debt, and subsequently sells a part of the land to H„ and gives him a title bond, and H. takes possession. The land is afterwards sold under the trust deed and H. continues to hold. The possession by A., after the deed, was as tenant by sufferance; and the possession of H. was of the same character ; and, therefore, the statute of limitations is no bar in an action, by the purchaser under the trust deed, .for the recovery of the land ; no actual ouster or disclaimer by H. being proved. Creigh's heirs v. Henson, 10 Grat. 231. 26. An open, exclusive, and uninterrupted possession of property, held under a parol gift, (for a life not yet terminated,) from a plaintiff- in eject- ment, is no bar to his recovery in that action. Clark v. McClure, 10 Grat. 305; 27. As a general rule, possession to give title, must not only be adver- sary, but adverse in its inception ; and where a defendant has entered under a plaintiff, and acknowledged his title as that under which he holds, he cannot controvert it. Ibid. 28. An adverse possession depends upon the intention with which the possession was taken and Held. Wherever the act itself imports that there is a superior title in another, by whose permission and in subordi- nation to whose still continuing and subsisting title the entry is made, such entry cannot be adverse to the owner of the legal title ; and such 14 ADVERSARY POSSESSION. possession, so commencing, cannot be converted into an adverse possession, except by disclaimer, the assertion of an adverse title and notice. Ibid. 29. A vendee who enters under an executory contract, which leaves the title where it was and contemplates a future conveyance, enters in subordi- nation to it, holds under and relies upon it to protect his possession in the mean time. And in such case, as in the case of lessee, mortgagor, cestui que trust and the like, where one is under the owner of the legal title, a privity exists between them, which precludes the idea of a hostile, tortious possession, which could silently ripen into a title by adverse possession under the statute of limitations. Ihid. 30. An entry on land under a parol gift from the owner, and a claim to hold any estate by virtue of the gift, is, in its nature, a recognition of the continued existence of a subsisting title in the legal owner; and a claim to hold any estate in land by virtue of a parol gift from the legal ovraer, is a claim to hold in subordination to his legal title. Ihid. 31. A junior patentee files his bill against a senior patentee, claiming land covered by both patents, and there is a decree sustaining his claim and directing a conveyance by the senior patentee ; but it is never exe- cuted. The junior patentee occupies a part of his patent, though not that part included in both patents, and holds possession for many years. Held: That the junior patentee and those claiming under him have adversary possession to the bounds of his patent. Anderson v. Harvey's heirs, 10 Grat. 386. 32. A purchaser under the elder patentee cuts the wood upon the inter- lock and converts it into coal upon the land, and removes and uses it. This temporary possession did not disseize the heirs of the junior patentee. Hid. 33. After the forfeiture of land to the commonwealth, under the delin- quent land law, Sess. acts 1834-5, p. 11, no possession thereof, adverse to the proprietor in whose name it was forfeited, can run against the com- monwealth. Siaats v. Board, 10 Grat. 400. Wild's lessee v. Serpell, idem. 405. 34. Qucere, Whether after the lien of the commonwealth, for taxes at- taches to lands, any possession adverse to the proprietor, can impede the right of the commonwealth to subject said lands to sale or ..forfeiture for such taxes ; and as a consequence, to transfer to a purchaser or vest in an actual occupant, or subject to re-entry and grant, such forfeited lands. Stoats V. Board, 10 Grat. 400. 35. Though the deed, executed by the sheriff for land sold for taxes, be defective, it is competent evidence to show, with other evidence, an actual entry, under a claim of title and a continued holding thereunder, so as to make out a title or right of entry by actual possession. Possession so taken and continued for the time prescribed, might ripen into a right of ADVERSARY POSSESSION. 15 possession, and so bar the right of entry of the opposing party. Flanna- gan v. Grimme. et als., 10 Grat. 421. 36. The actual possession of land, claiming the same adversely, does not prevent the operation of the deed made by a commissioner of delinquent and forfeited lands, conveying to a purchaser the commonvrealth's right to the land. Smith et als. y. Chapman, 10 Grat. 445. 37. A slave is conveyed to a step-son for value, by deed, the step-father retaining possession of the slave and her increase for many years; such possession is not adversary and does not afford him the protection of the statute of limitations. Huberts v. King, 10 Grat. 184. 38. In a vrrit of right, the tenant, in order to defend his position under the statute of limitations, may show a possession anterior to his patent; and to show color of title, may introduce the entry and survey, upon which his patent issued. But as there cannot be an adversary possession against the commonwealth, he cannot show possession further back than a senior grant of the same property. Koiner v. Eankin's heirs, 11 Grat. 420.* 39. The effect of a patent issued upon an inclusive survey, and the right of a tenant claiming under it, to show possession under color of title, is the same as in other grants. He may give in evidence the entries for the different tracts, embraced in the inclusive survey, and the survey made in pursuance of the order. But he cannot show possession further back than the senior grant. Ibid. 40; To protect himself under the statute of limitations, the tenant must show continued adversary possession for the time of limitation of some part of the land in controversy. Actual possession of a part of his land, outside of the boundaries of the demandant's elder patent, is not sufficient. Ibid. 41. When patented lands remain uncleared, or in a state of nature, they are not susceptible of adversary possession against the elder patent, unless by acts of ownership, effecting a change in their condition. Ibid. 42. A senior patentee holds and cultivates a portion of his tract, not embraced in a junior patent. The junior patentee afterwards takes pos- session and clears and cultivates a part of his tract outside of the portion embraced by both patents, and also clears and encloses a portion of the interlock, and exercises such acts of ownership over the whole as consti- tutes adversary possession ; and after five years, dies. The possession of the heirs is not limited to their enclosure. The entry of the senior patentee upon the heirs is tolled, and he cannot recover by a warrant of unlawful detainer. Kinchloe v. Tracewells, 11 Grat. 587. 43. An entry upon land in the possession of another, must be with claim » See ante. No. 21. 16 AFFIDAVIT.— AMENEMENTS. of title in order to constitute an ouster and give adversary possession to the party entering. But the claim of title need not be under a deed or other writing; or if it be under a deed, it is not necessary that the posses- sion shall be restricted to what shall prove to be within the precise boundaries of the deed. Ihid. 44. If possession be taken, under a mistake as to the true boundary, the fact is immaterial in a proceeding for an unlawful entry and detainer. Ibid. 45. One of several heirs, took possession of land, claiming that it was devised to him for life, remainder to his sons, by his father, by a will that was lost, and he held it for his life and his sons, and those claiming under them held it after his death, claiming under this title. This taking and holding possession was adverse to the other heirs; and the statute of limitations commenced to run from the time of such taking possession. Caperton et al. v. Gregory et als., 11 Grat. 505. AFFIDAVIT. 1. The affidavit of a witness, of his inability to attend the court, not having been objected to in the court below for want of notice; that objection cannot be made in the appellate court. Tayloe v. Smith, 10 Grat. 557. 2. Such affidavit is sufficient to authorize his deposition, which has been taken, de bene esse, to be read as evidence. Ibid. AMENDMENTS.* 1. A sheriff will be permitted to amend his return on an execution, after an action has been commenced, by the plaintiff in the execution, against the sheriff and his sureties on his official bond, founded on said return. Wardsworth, dec. v Miller, dec, 4 Grat. 99. 2. In a proper case, the court may permit the attorney for the common- wealth to amend his information after a demurrer thereto; but this should net be done where the offence charged in the presentment, upon which the information is based, does not amount to a misdemeanor. William- sons case, 4 Grat. 555. 3. It being necessary to plead a custom and acquiescence therein, speci- ally, as a defence to an action, and the proof thereof having been admitted on the general issue, on the first trial, without objection by the plaintiff; •SeeCodeof Va.,ch. 171, $14. /dem, ch. 177, { 7. Idem, ch. 181, ^ 5. AMENDMENTS. 17 the defendant will be allowed to amend his pleadings, on the return of the case from the appellate court and plead the matter specially. Governor for Idggatt v- Withers, 5 Grat. 24. 4. An action is brought on a bond for $188, which is declared on as for $108; the defendant confesses judgment for the debt in the declaration mentioned and the judgment is entered for $108. This is not a clerical errcr which can be amended under the 108th sec. of the stat. of Jeofails, 1 Rev. Code, ch. 128, p. 512. Compton v. Cline, 5 Grat. 137. 5. A demurrer to a declaration is overruled ; the case tried on the issues joined on pleas, verdict and judgment for plaintiff. On appeal, the judg- ment is reversed, verdict set aside and the demurrer sustained. The cause remanded for a new trial, with liberty to the plaintiff to amend his decla- ration. White's Adm'x v. Toncray, 5 Grat. 180. ' 6. By mistake, a wrong name is inserted in an indictment for a misde- meanor, though the record of the court and the endorsement on the indict- ment show the right name. The indictment cannot be amended by strik- ing out the wrong name and inserting -the name of the person intended. Buzzard's case, 5 Grat. 694. 7. In an action against an executor on a note, signed by him as such, there is a judgment by default, de bonis propriis. If this is error, it is to be corrected by nlotion to the court, and not by appeal. Snead v. Colman and wife, 7 Grat. 300. 8. A replication to a plea, relies on a covenant, but fails to make profert of it; and is demurred to and the demurrer is sustained on this ground. It is proper to allow the plaintiff to amend the replication, by adding the profert of the covenant. Bowles' Ex'or v. JElmore's Adm'x, 7 Grat. 385. 9. An indictment for a wilful trespass, was against J. M. It was en- dorsed by the grand jury as against T. M. "a true bill," and so it was noted on the record. The court cannot alter the record, so as to make it conform to the indictment. McKinney's ease, 8 Grat. 589. 10. Defendant in equity allowed to amend his answer in order to plead the statute of limitations. But the statute of limitations being sustained as to certain open accounts, part of plaintiff's claim, the defendant's claims of the same nature, not allowed to be set off against plaintiff's specialty claim. White v. Turner's Adrn'r, 2 Grat. 502, 11. Qu,(zre, If the act, Code of Va., ch. 181, ? 5, in relation to amend- ments of a record by a judge in vacation, applies to records in cases of felony. Powell's case, 11 Grat. 822. 12. The amendments authorized by the act, are to be based upon some- thing in the record, and not upon the recollection of the judge who presided at the trial or upon evidence aliunde. And the amendments S 18 ANNUITIES.— ANSWER. authorized, are amendments to support the judgment, not amendments to give ground for reversing it. Ibid. ANNUITIES. 1. Interest will not be allowed, on the arrears of an annuity, which was to he paid in agricultural products, at a particular place, the value of which was to be ascertained by testimony, and in the absence of any proof of demand, at the place where it was to be paid, or of an agreement to dispense with the demand and convert the same into money. Phillips ei als. V. Williams et als., 5 Grat. 259. 2. Land on which the annuity is a charge, having been sold during the pendency of the suit, it will be decreed to be sold to satisfy the arrears of the annuity, without noticing the pendente lite purchaser. Ibid. ANSWER. 1. Defendant's demurrer to a bill, being overruled, he may file any suf- ficient answer. Northwestern Bank v. Nelson, 1 Grat. 108. 2.. An answer to a bill of discovery is sufficient, when it shows that the defendant is protected from making the discovery sought by the biU. Ibid. 3. If the objection to a discovery does not appear on the face of the bill, the defendant may claim his protection by plea or answer, the averments of which if traversed by replication, must be established by sufficient evidence. Ibid, 4. Defendant in equity allowed to amend his answer in order to plead the statute of limitations. White v. Turner's Adm'r, 2 Grat. 502. 5. A defendant, though in default for want of an answer, ought to be permitted to file any proper answer at any time before a final decrea, but the trial of the cause is not thereby to be delayed, unless for good cause shown. Bowles v. Woodson, 6 Grat. 78. 6. A defendant who is in default for want of an answer, and files a demurrer to the bill which is overruled, is not entitled to two months, in which to file his answer. Reynolds v. The Bank of Va., 6 Grat. 174. 7. When a plaintiff comes into a court of equity for a discovery, the whole answer of the defendant is to be read, if it is used at all, as the testimony of a witness ; and no part of it, pertinent to the discovery, is to be rejected, because it is affirmative matter in avoidance of that which is APPEALS. 19 admitted to be true. But thougli the answer is to be read, it is subject to be discredited in the same manner as the testimony of any other witness. Lyons v. Miller, 6 Grat. 427. 8. It is the right of a defendant in equity to file his answer at any tim« before a final decree. Bean et al. v. Simmons, 9 Grat. 389. 9. Where the court had received the case when submitted for decision; had examined and settled the terms of a decree, deciding the principles of the cause, though it was an interlocutory decree, and a decree had been prepared and considered by the court, and directed to . be entered in the order book, but before it had been entered and on the same day it was directed to be entered a defendant tendered his answer. Held, the defend- ant was then entitled to file his answer. Ihid. 10. Quaere, "Whether, if the decree had been entered in the order book and the orders had been signed by the judge, the defendant would have been entitled, at the same term, or at any time previous to the final hear- ing of the cause, to file his answer. Ihid. 11. The mode in which an exception to an answer shall point out the omission excepted to, is a matter of practice, discretionary with the court and not a subject of appeal. Craig v. Sebrell, 9 Grat. 131. 12. The exception being sustained and the defendant having filed another answer, there the subject of the exception properly ended. Ihid. • 13. Plaintiff, after setting out his case, in his bill, states what he under- stands is the pretension of the defendant. This is not such an allegation, as will constitute the answer responsive thereto, evidence, and thus throw the burden of disproving it upon the plaintiff. Lea's Ex'or v. Eidson, 9 Grat. 277. APPEALS.* 1. During the pendency of a cause in a court of equity, against the dis- tributees of an intestate debtor, by his creditor, the estate of the debtor is committed to the sheriff; who without an amendment of the bill, or the issue of process against him, comes in and files his answer; and no objection is taken to his so doing in the court below. The Appellate Court will not reverse a decree against the distributees on that account. Hair- ston V. Medley, 1 Grat. 96. 2. An administrator of an intestate, who lived and died in another state, answers that he has no assets in his hands; and knows of none that can come to his hands. The court will not reverse a decree against the distributees, because no account of this administration was taken. Ihid. *See Code of Va., ch. 181., also Scss. Acts 1852, ch. 61, 62. 20 APPEALS. 3. A bill is filed in which one, who is a necessary party, is not made a defendant; a decree is obtained affecting him. He then files his bill against the plaintiff in the first suit, to enjoin his decree, and to this bill of injunction, the plaintiff in the first suit answers, and by the bills and answers in both suits, the respective claims of the parties are fully pre- sented. The causes come on to be heard together in the court below and Si decree is made, from which there is an appeal. The Appellate Court will consider the bill of injunction as an answer and cross bill in the first cause, and decide the case upon the merits; without sending the causes back for an answer in the first suit. Kyle's Ex'or v. Kyle, 1 Grat. 526. 4. A copy of an account from the partnership books, being filed with the answer of the executor of one of the partners, and being treated as evidence on the hearing in the court below, will be so considered in the Appellate Court. Ibid. 5. An error appearing on the face of a commissioner's report will be corrected, though no exception has been taken to it, in the court below. Coolcus V. Peyton's Ex'or, 1 Grat. 431. 6. In a controversy, arising out of the probat of a, will in the court below, the contestants admit upon the record, that the paper has been duly executed by the testator; and that he was of sound and disposing mind and memory at the time of its execution. The Appellate Court being of opinion that this admission does not dispense with the legal proof of these facts, will send the cause back to the court below, to give the pro- pounders an opportunity to produce the proofs. Sylton v. Sylton, 1 Grat. 161. 7. A commissioner's report is excepted to and the court, without pass- ing upon the exceptions, re-commits the report. The re-committed report is not excepted to. The exceptions to the first report are waived and are not a subject of consideration in the Appellate Court. Kee's Ex'ors v. Kee's creditors, 2 Grat. 116. 8. No exception having been taken to the rejection of a plea, offered by the defendant in the court below, the propriety of rejecting the plea can- not be considered in the Appellate Court. Bowyer v. Hewitt, Ruffner & Co., 2 Grat. 193. 9. This court will presume that a deposition has been taken upon a regular commission and notice, where no objection has been taken to it, on the ground of being deficient in that respect, in the court below. Pol- lard's heirs v. Lively, 2 Grat. 216. 10. An exception to the admission of a disposition as evidence for an irregularity in taking it, must state the grounds of the objection or this court will not notice it. Barlcer v. Barker's Adm'r, 2 Grat. 344. 11. A bill of exceptions to the opinion of the court below, refusing a APPEALS. 21 new trial, does not etate that the objection was taken to the damages as excessive. The objection cannot be made in the Appellate Court. Law t. Law, 2 Grat. 366. 12. When the case before the jury depends upon the credibility of wit- nesses, and the court below refuses to grant a new trial, the Appellate Court will not reverse the judgment. Ihid. 13. When a criminal case depends upon the tendency and weight of evidence, and the jury, and the judge who tried the cause, concur in the weight and influence to be given to it, it is an abuse of the powers of an Appellate Court, to set aside a verdict and judgment, because from the evidence as written, the Appellate Court would not have concurred in the verdict. HUl's case, 2 Grat. 594. 14. The General Court will only set aside a verdict, because it is con- trary to the evidence, in a case where the jury have plainly decided against the evidence or without any. Ibid-. 15. The Court of Appeals will reverse a decree for want of proper parties though the objection was not taken in the court below. Taylor's Adm'r et als v. Spindle, 2 Grat. 44. 16. A bill is filed by two executors against the creditors of their testator, for administration of his estate in equity. The accounts are taken, and the cause is ready for hearing, when one of the executors dies ; without being revived against his representative, a decree is made against the sur- viving executor who appeals. It is too late to object in this court, that the suit was not revived against the representative of the deceased executor. Kee's Ux'or r. Kee's creditors, 2 Grat. 116. 17. The court below having given judgment for the plaintiff in a scire facias, against the bail, for too large an anjount, the Appellate Court will reverse the judgment and give judgment for the proper sum. Bowyer v. Eewitt, Buffner & Co., 2 Grat. 193. 18. In a case of misdemeanor, after the plea of not guilty and a trial and verdict on that plea, it is not competent to arrest the judgment for any supposed variance between the information and presentment. Jones' case, 2 Grat. 555. 19. The court will arrest the judgment, if a material constituent of the offence, for which the prisoner is prosecuted, is omitted in the indictment. Peas' case,_ 2 Grat. 629. 20. Upon overruling a motion for a new trial, the court below certifies that the donor made an absolute parol gift of slaves to the donee. This is not sufficient to authorize an appellate court to infer the actual and con- tinued possession of the slaves by the donee, or those claiming under him; 22 APPEALS. though such a certificate, as to other personal property, would be sufficient. Anglin v. Bottom, 3 Grat. 1. 21. Where a plaintiff in equity has shown no title to relief and his bill is dismissed, an Appellate Court will not reverse the decree, to enable him to introduce new parties and thereby make a new case upon the merits. Jameson's Adm'x v. BesMelds, 3 Grat. 4. 22. If, however, plaintiff has shown title to relief, but there is a defect of parties, the decree will be reversed and sent back, to enable him to make the necessary parties. Ibid. 23. An instruction as to the suffieiency of evidence, upon a point, which is immaterial is not an error for which an Appellate Court will reverse the judgment of the court below. Pitman v. Breckenridge and Crawford, 8 Grat. 127. 24. In controversies concerning roads, no appeal or supersedeas lies to an interlocutory order of the County Court. Frevillian v. Louisa B. B. Co., 3 Grat. 326. Hancock v. Bichmond and Petersburg B. B. Co., Id. 328. 25. Appeals, as of right, from orders of the County Coirrt, in contro- versies concerning roads, only exist, where the controversy is concerning the establishment of a road, and not where it is a collateral controversy, concerning the damages occasioned by a road already established. Satir code V. Bichmond and Petersburg B. B. Co., 3 Grat. 328. 26. Bill filed to subject heirs to the payment of the bond of their an- cestor, does not allege that the heirs are bound in the bond, but makes the bond an exhibit with the bill. The answer does not admit or deny that the heirs are bound in the bond, and before the cause is heard, the bond is lost out of the papers in the cause. There is proof of the existence of the bond, but no evidence on the question whether the heirs were bound by it; nor is that question made in the court below, but a decree is made against the heirs. Held : That although this court will reverse the decree, for the want of the proof that the heir is bound, the cause will be sent back to give the plaintiff an opportunity to amend his bill and show that the heir was bound in the bond. Piper v. Douglass' Ex'or, 3 Grat. 371. 27. An appeal lies, as of right, from the County to the Superior Court, from an order revoking absolutely or conditionally, the power of an execu- tor or an administrator, with a view to the appointment in his stead, of an administrator de bonis nan, or to the committing of the estate to the sheriff. Atkinson v. Christian, 3 Grat. 448. 28. An Appellate Court requiring an executor or administrator to give other security ; the order should be directory only to the inferior court, which originally granted administration. Ibid. APPEALS. , 23 29. The Court of Appeals, upon affirming a decree of the court below, which does not bear interest, will give damages at the rate of 6 per cent, per annum, upon the amount of ths decree, exclusive of costs, from the time the decree took effect until paid. Mulladay v. Machir's Adm'r, 4 Grat. 1. 30. An administrator or executor may appeal without giving security for costs, when the object of the appeal is to assert the rights or protect thd interests of the estate he represents. McCauley's Adm'r v. Griffin's Ex'or, 4 Grat. 9. 31. The death of a defendant in error in a proceeding of unlawful de- lainer, is suggested, pending an appeal by the plaintiff below. On motion to revive at the next term Held: That the cause is in its nature, incapa- ble of revival, and that the writ of supersedeas be abated. Chapman v. Dunlap, 4 Grat. 86. 32. The act limiting appeals to the Court of Appeals, refers to the time of presenting the petition for an appeal to the court or a judge in vaca- tion; and if the petition is presented within five years from the date of the judgment or decree, the appeal is not debarred by the statute. Wil- liamson V. Gayle et als., 4 Grat. 180.* 33. After an appeal has been allowed, the appeal is pending in the Ap- pellate Court, and the failure of the appellant to give the appeal bond, does not avoid the appeal. Such appeal can only be dismissed in the man- ner prescribed by the statute. Ibid* 34. If the appellant fail to give the appeal bond, the appellee may have a rule upon him, to compel him to give it. Ibid. 35. The appellee may proceed to enforce the judgment or decree of the court below, until the appeal bond is given. Ibid. 36. One of several appellants dies after an appeal is perfected in the Appellate Court. Either party may have the appeal revived in the name of the representative of the deceased party; and the party desiring to have it done, must do it. Baine et als. v. Bank of Virginia, 4 Grat. 150. 37. A curatrix having proceeded to administer the estate of an intestate, it will be presumed in the Appellate Court that she was appointed under the 42d sec. 1 Rev. Code, oh. 104. Cfross' curatrix v. Cross' legatees, 4 Grat. 257. 88. An exception to the opinion of the court below must show its rele- vancy or the judgment will be presumed to bo correct. Carpenter and wife V. Utz et als., 4 Grat. 270. 39. In a suit by an administrator de bonis nan against the representative of the first administrator, for a settlement of the first administrator's ac- count of his administration, it is irregular to decree payment to the ad- " See Code of Va., oh. 182, J 17 : a.id Yarbrough v. Deshazo, post p. 27, No. 64. 24 APPEALS. ministrator de honis non. But the distributees, being parties to the suit and not complaining; so that a payment to the administrator de bonis non, would be a valid discharge to the representative of the first administrator, he vrill not be heard to complain of the irregularity, in the Appellate Court. T. Morris' Adm'r v. Morris' Adm'r et als., 4 Grat. 294. 40. A motion to quash a writ and inquisition foundsd on a judgment at law, is sustained in the court below. The Appellate Court is at liberty to look into the judgment, writ and inquisition, though not incorporated into a bill of exception; inasrouch as they must of necessity have entered into the consideration of the court below and formed the basis of its judgment. Wallop's Adm'r v. Scarburgh et als, 5 Grat. 1. i 41. IJpon an appeal from a final decree made upon a report of a com- missioner, to which there were various exceptions by the appellant, the Appellate Court holds that the coiirt below erred in not sustaining one of the appellant's exceptions to the report and the decree is reversed and the cause remanded for new enquiries to be made in relation to the subject of that exception. Held, upon a second appeal that the subject of that ex- ception is the only question left open and undetermined. Deneufville's Adm'r v. Travis's Adm'r, 5 Grat. 28. 42. In a suit by a judgment creditor to set aside a fraudulent convey- ance of property by his debtor; the judgment and execution being_ ad- mitted by the pleadings, the failure to 'file copies of them in the cause, is not ground of reversal of the decree of the court below, setting aside the conveyance. Especially, if no objection was taken in that court to the failure to file them. McNews v. Smith, 5 Grat. 84. 43. When a trial of a cause is had before a jury and they cannot agree upon a verdict, (5r do agree upon a verdict, which is set aside ; and a new trial awarded, upon the new trial, any opinion expressed by the former jury or by the court upon the former trial, is improper for the consideration of the jury; and if an opinion or instruction of the court, given on a for- mer trial is relied on before the jury on the second trial, by the party in whose favor it was given, without asking for such opinion or instruction from the court, and a verdict and judgment are rendered for him, the Ap- pellate Court will consider the opinion or instruction so relied on; and if it is erroneous, will reverse the judgment and award & new trial. Craw- ford V. Morris, 5 Grat, 90. 44. On the trial of a joint action of trespass against several, who plead jointly, an instruction to the jury, that they may sever the damages and assess respectively what, in their opinion, each party found guilty ought to pay, is not an error of which a defendant can complain in an Appellate Court, though the plaintiff may. Ihid. 4.5 An exception to the opinion of the court, refusing a new trial, states all the evidence introduced on the trial, instead of the facts proved. The APPEALS. 25 Appellate Court cannot consider the parol evidence of the appellant, but if upon the written evidence, and the parol evidence of the appellee, the verdict vras erroneous ; the judgment will be reversed and a new trial awarded. Pasley v. English et ah., 5 Grat. 141. 46. A decree of partition is offered in evidence in the court below, as a necessary link in the chain of title. An objection that it has not been recorded in the county where the land lies,* cannot be made in the Appel- late Court, its introduction not having been objected to on that ground in the court belOw. Wynn v. Harman's devisees, 5 Grat. 157. 47. A decree affirmed in consequence of an equal division of the judges of the Court of Appeals, settles the principles of the cause, involved in the decree of the court below. Phillips et als. v. Williams et als., 5 Grat. 259. 48. Upon an appeal from an interlocutory decree, the principles of the decree (and not the mer CONTRIBUTION* 1. One surety of an insolvent principal is entitled to contribution from his co-sureties, and if all the sureties are solvent, each is bound for his equal share. T. L. Preston v. J Preston et als., 4 Grat. 88. 2. There being a judgment and execution against one surety, who gives a forthcoming bond with another joint surety against whom there was no judgment ,which forthcoming bond is forfeited and the surety in the latter pays the debt, he is entitled to contribution from the sureties in the original bond. Ibid. 3. If one of the sureties is insolvent, his share is to be apportioned among the solvent sureties ; but the surety in the forthcoming bond, having released the property of the principal in that bond, and that principal having become insolvent, the surety in the forthcoming bond is not enti- tled to recover from his co-sureties in the original bond, any part of the share of his said principal as one of the sureties in the Original bond. Ibid. 4. The surety in the forthcoming bond is not entitled to a decree for the costs of awarding execution on said bond, either against the principal or sureties in the original bond, but only against his principal in the forth- coming bond. Ibid- 5. The right of one surety to call upon his co-surety for contribution, arises from a principle of equity, growing out of the relation which the parties have assumed towards each other : the equity springs up at the time of entering into that relation, and is fully consummated when the surety is compelled to pay the debt. Wayland v. Tucker et als., 4 Grat. 267. r ' See Code of Virginia, chap. 122. JJ 17-18, p. 518. Id. ch. 187. } 10. 84 CONVERSION. 6. The principal and two or three sureties in a bond become insolvent ; a solvent surety pays the debt. Previous to this payment, the solvent surety had executed his bond for less than half the first bond, to one of his co- sureties, who had conveyed it in trust for his creditors. After the payment of the first mentioned debt by the solvent surety, judgment was recover- ed against him on his own bond, and he then enjoined the judgment, claim- ing to ofFset it by his co-sureties' portion of the debt, he had paid. Held : 1st. That he is entitled in preference to the assignee of his bond. 2d. He is entitled to relief in equity, notwithstanding the judgment at law. Ibid. 7. The jurisdiction now assumed by Courts of law, to enforce contribu- tion in some cases, does not affect the jurisdiction originally belonging to a Court of Equity. Ihid. 8. A tract of land is subject to a mortgage, and the owner of the land sells a part thereof and conveys it with general warranty ; he then sells the remainder of the tract : The part last sold, is primarily liable for the mortr gaged debt, and the owner thereof is not entitled to contribution from the first purchaser. Henlde's Ex'or. &e. v. AUstaddt &c., 4 Grat. 284. CONVERSION. 1. Husband and wife convey the equity of redemption in the wife's land to a trustee to sell the same for the use and benefit of the grantors. This is a conversion of the land into personalty. Siter, Price & Co. v. M' Cla- nachan et als., 2 Grat. 280. 2. Land is given to husband for life, but with power to elect within three years to have the land sold, and take a certain sum of money in lieu of the life estate in the land, absolutely. If he elects within three years, the election is an equitable conversion of the land into money, which will not be defeated by his death before a sale. Washington's Ex'or v. Abraham et als., 6 Grat. 66. 3. A sale by an administrator of his intestate's effects, though upon a credit, must be treated at law as a conversion thereof. Clarke v. WeW Adm'r, 6 Grat. 475. 4. But when upon a settlement of the administration of the administra- tor, between proper parties, it appears that the collection of such sale bonds by his personal representative, is unnecessary for the re-imbursement or indemnity of his decedent's estate, they will be turned over to the adminis- trator de bonis non, as unadministered assets. Ibid. CONVEYANCES. See Deeds. CONVICT.— CORONERS.— CORPORATIONS. 85 CONVICT. On the trial of a convict from the penitentiary for felony, a convict con- fined there for felony is a competent vritness for the prosecution. Johnson's case, 2 Grat. 581. CORONERS. Qucere : If a coroner has authority to commit to jail, for trial, a person charged by the inquest taken before him, vfith a felony. WormeUy's case, 10 Grat. 658. CORPORATIONS. 1. A bequest to a corporation, of its own stock, is valid.. Bivanna Nav. Co. v. Damsons', 3 Grat. 19. 2. The officers of a private corporation have no franchise in their offices ; but are the mere ministerial agents of the corporation, to conduct its business for the benefit and under the authority of the corporation. Burr's Ex' or a als. v. McDonald et als., 3 Grat. 215. 3. The officers of a private corporation may be appointed or removed by the stockholders at any general meeting, whenever the welfare of the corporation requires it. Ibid. 4. Though the election of an officer of a private corporation has been irregular, such an election constitutes him an officer de facto; and his acts ' done under the authority of the corporation and colore officii will be bind- ing on the corporation, and can not be impeached by strangers on the ground of want of authority. Ibid- 5.' It is competent for a private corporation to execute a deed by an agent empowered to act, by a resolution of the stockholders in general meeting. Ibid. 6. A private corporation for manufacturing purposes may borrow money to carry on its operations. Ibid. 7. A deed, by a private corporation chartered prior to the act Feb. 13, 1837, in trust to pay its debts, which gives preferences in favor of some of the ^stookholder8 for their suretyships for the corporation, is legal and valid. Ibid. 8. The President and Directors of the Northwestern Turnpike road, under the act 1830^1, p. 153, are a corporation, liable to be sued for work and labor performed and materials furnished for them.* Dunnington v. Pres. and Dir. N. W. Turnpike Road, 6 Grat. 160. *See Supp. Rev. Code, cli. 104, p. 153. 86 COSTS. 9. This case distinguished from the case of Sagre against the same corpo- ration in 10 Leigh, 454. Ihid. 10. In an aption by a corporation, the question, whether the corporation has forfeited its charter or not, is not open for enquiry, unless the forfeiture has been ascertained by the sentence of a court in a proper proceeding for the purpose. Crump v. United States Mining Co., 7 Grat. 352. 11. The organization of a corporation may be proved by its records and parol proof, without the production of its list of subscribers. Ihid. 12. The stockholders of a corporation having directed the directors to create new stock and sell it, and the directors having, instead of doing this, acquired original stock and sold it, their act may be subsequently Ratified by the stockholders, so as to render the sales valid against the purchasers. Ihid. 13. The president of a corporation is not ex officio, the agent of the corporation to sell property which it may direct to be sold ; and unless appointed the agent to sell, his representations will not affect the corpo- ration. Ihid. 14. A debt is due to a partnership and the partners are afterwards in- corporated, and the debt then becomes the debt of the corporation. It is competent to sue for it in the corporate name, in a Court of Equity. Grif- fin's Ex'or at als. v. A. Macauley's Adm'r, 7 Grat. 476. Bismol Swamp Co. V. A. Macauley's Adm'r et als. Id. 15. A plaintiff in equity claims to be a corporation. The defendant in his answer denies that the corporation has been regularly organized and calls for proof. The plaintiff failing to prove the legal organization of the company, the bill should be dismissed. Bowyer's Adm'r et als. v. The Giles, Fayette and Kanaiolia Turnpike Co., 9 Grat. 109. 16. The act Feb. 5, 1817, incorporating the Northwestern Bank of Vir- ginia, is a public act, of which the courts will judicially take notice, and in an action by the bank, it is not required to prove its incorporation. Hays V. NortJiwestern Bank of Virginia, 9 Grat. 127. COSTS. 1. In a prose'cution for a misdemeanor, at the instance of a volunteer prosecutor, though the prosecution fails upon the ground that one of the grand jury was not duly qualified, there should be a judgment for costs against the prosecutor. St. Clair's case, 1 Grat. 556. 2. Judgment is obtained against the principal and some of the sureties of a bond, execution issues against one of the sureties and levied upon his COSTS. 87 property; he gives a fortliooming bond with one of the sureties in the -original hond as his surety; the forthcoming bond is forfeited and the last named security pays the debt. He is not entitled to a decree for the costs of awarding execution on said bond, either against the principal or sureties in the original bond, but only against his principal in the forth- coming bond. T. L. Preston v. /. Preston et als., 4 Grat. 88. 3. A general judgment against two defendants in ejectment is proper, though one of them did not enter himself a defendant until there had been one trial of the cause and a large portion of the costs had been incurred. Middleton v. JoJitis et als., 4 Grat. 129. t 4. Plaintiff and defendant both setting up claims greater than they can establish and sustain, though each succeeds in part, may each be decreed to pay his own costs. Beverley v. Brooke et als., 4 Grat. 187. 5. A trustee defendant, resisting plaintiffs claim, and failing in his defence, is liable for the costs. Ibid. 6. Upon opening a road, the costs of the inquest should be paid out of the county levy, but the other costs of the applicant should be recovered from the contestant. White v. Coleman, 6 Grat. 138. 7. So much of the judgment of the court below as affects the appellant being affirmed, although the Appellate Court reverses so much thereof as affects a third party who did not appeal, costs will be given to the appellee as the party substantially prevailing, .Sarman v. Odell, 6 Grat. 207. 8. A trustee appeals from a decree construing the trust, and the decree is affirmed. He must pay the costs out of his own estate. Brown v.* George, 6 Grat. 424. 9. In a suit against an administrator for distribution, though the plaintiff has a decree, yet if the administrator has been in no default, he shall have his costs. JEidson v. Fontaine, Adm'r <&c., et als., 9 Grat. 286. 10. In a suit to enjoin the collection of purchase money on account of incumbrances and defect of title, though the incumbrance is removed and the title made good, so that the injunction is dissolved, yet plaintiff is entitled to his costs. Young/' s Adm'r and Bowyer v. McClung et als., 9 Grat. 336. 11. But if there was another suit pending in which the plaintiff in the injunction suit might have had the relief he sought, by petition or supple- mental bill, he shall not have his costs. Ibid. 12. A creditor, who with the knowledge that there has' been a decree for an account in another creditor's suit, brings a separate suit for his own claim, will be compelled to pay costs. Stevenson v. Taverners. 9 Grat. 398. 88 COUNTY COURTS.— COUNTY LEVY. 13. A plaintiff in equity whose house, in which his family resides, is fifteen feet on the Virginia side of the State line, and who, so far as known, lives with his family, is prima facie a resident of Virginia ; and this prima facie case is not altered by proof that the sheriff had twice gone to the house with process against him, without finding him, and was told by the neighbors, that the plaintiff would not be seen by him : and he can not there- fore be held to give security for costs. Emrhs v. Bradsliaw et als., 10 Grat. 207. 14. A pardon of a person convicted of felony does not release him from the costs of prosecution, for which an execution had been issued before the pardon was granted. Anglea, &c. v. Commonwealth, 10 Grat. 696. 15. The act. Code of Va., p. 783, g 11, only subjects the prisoner to such costs as the Commonwealth, is bound to pay ; and therefore does not embrace the fees of the clerk, sheriff, or attorneys of the Commonwealth. Ibid. 16. It was not improper before the act. Code of Va., p. 706, ? 9, to render a judgment for costs in favor of a defendant against the person for whose benefit the suit was brought, when the defendant succeeded in the case. PaUs V. St. Clair, 11 Grat. 22. COUNTY COURTS. See Courts. , COUNTY LEVY. 1. An act requiring the County Court to lay a levy upon the titheables of the county for the purpose of improving the navigation of a stream lying within it, though passed without the assent of the people of the comity, is constitutional. Harrison justices v. Holland, 3 Grat. 247. 2. A County Court having laid the county levy, and directed the sheriff to pay certain claims upon the county out of it, and the sheriff having received the commissioner's books and proceeded to collect the levy, as far as it could be collected, and returned a list of insolvents; upon a motion by one of the creditors of the county, whose claim was directed to be paid out of the levy, against the sheriff and his sureties to recover the amount, it is not competent for the defendants to object that the County Court was not legally constituted, so as to be authorized to lay the levy when it was done, nor can they object that the commissioner's books were irregularly made out and not properly authenticated. Cook, sheriff et als. v. Hays, 9 Grat. 142. 3. The amount collected by the sheriff not being sufficient to pay all the OOUKTS. 89 claims directed to be paid out of it, in the absence of proof that the sheriff has paid claims other than that of the plaintiff, the law will not presume he has paid them. Ibid. 4. In such a case, a demand upon the sheriff is necessary to sustain a motion against him and his sureties. But no objection for want of a demand having been in the court below, and the notice averring the demand, and the judgment giving a credit for a part of the debt, as paid on the day it was demandable, this is sufficient proof of the demand in the appellate court. Ibid. COURTS. 1. The judge of a Circuit Superior Court may continue the session of the court until the latest period, which will allow him time to get to the next court by 4 o'clock, P. M., of the third day of the term.* HUl's case, 2 Grat. 594. 2. A County Court professing to proceed under the act of 1819, in open- ing a road, it is not necessary that the record of their proceedings should shew that the County Court had previously dispensed with the act of 1835, in relation to roads, and retained the act of 1819. White v. Coleman, 6 Grat. 138. 3. The County Court has authority to require a party to enter into a recognizance to keep the peace: at least when the proceeding was com- menced before the act; Sess. Acts, 1848, ch. 14. Wetting's case, 6 Grat. 670. 4. An examining court has no right to sign a bill of exceptions to any opinion or act of the court; and if they do, it is no part of the record of the trial. Souther's case, 7 Grat. 673. 5. The Circuit Court is a court of general jurisdiction in aU actions at law, between individuals, and its judgment in such case is conclusive of its jurisdiction, and cannot be questioned but by appeal. Cox et als. v. Thoma^ Adm'x, 9 Grat. 323. 6. Unless it appears clearly upon the face of a record that the Circuit Court had not jurisdiction, the Appellate Co\irt will presume the proceed- ings were such as to give it jurisdiction. Ibid. 7. A County Court having laid the county levy and directed the sheriff to pay certain claims of the county out of it, and the sheriff having received the commissioner's books and proceeded to collect the levy as far. as it could be collected, and returned a list of insolvents, upon a motion by one of the creditors of the county, whose claim was directed to be paid out of the See Code of Va., p. 626, § 14. 90 COVENANTS. county levy, against the sheriff and his sureties to recover the amount, it is not competent for the defendants to object that the County Court was not legally constituted so as to be authorized to lay the levy, when it was done; nor can they object that the commissioner's book was irregularly made out and not properly authenticated. Cook, sheriff et als. v. Hays, 9 Grat. 142. 8. The act, Sess. Acts 1851-2, ch. 65, ? 23, p. 58, which directs that the Circuit Court of Henrico county shall be held at the State court-house in the city of Richmond, is not a violation of the 7th section of the 6th article of the Constitution of "Virginia. Scott's case, 10 Grat. 749. 9. If a case of unlawful detainer has been pending in the County Court for more than twelve months without a final decision, it may be removed on motion to the Circuit Court. Harrison v. Middleton, 11 Grat. 527. KincJieloe v. Tracewells, Id. 587. 10. All civil causes, of which the Circuit Court has either original or appellate jurisdiction, may be removed from the County to the Circuit Court, upon motion, after they have been pending in the County Court for one year. Ibid. 11. The year is to be counted from the date of the organization of the court summoned to try the case. Ihid. 12. An unlawful detainer case removed to the Circuit Court is properly placed on the docket at the head of the civil causes in the court. Ibid. 13. The act. Code of Va., ch. 96, § 3, p. 443, vests in the county courts a discretion to grant or refuse a license to keep a tavern ; in the exercise of which discretion they can not be controlled by the circuit courts, either by mandamus, writ of error or certiorari. Yeager, ex parie, 11 Grat. 655. 14. Though the applicant for a license to keep a tavern may bring him- self fully within and up to all the statute requires, so that the County Court may properly grant him the license, if they think fit, yet he does not acquire any such right to a license, as that the County Court may be required to grant it. Ihid. 15. It seems that the County Court is bound to act upon every application for a license, which is made to it ; and if it refuses to act, the Circuit Court will coerce it by mandamus: but when the County Court does act, its judgment and discretion are not to be controlled. IbuL. See Appeals. COVENANTS. 1. Covenants, though independent in form, will be construed as mutual COVENANTS. 91 and independent, when it is necessary to effect justice between the parties thereto. Todds v. Summers, 2 Grat. 167. 2. A party having covenanted to do two things, one of which he has done, will be allowed an action for the part done, as upon an independent covenant. Ibid. 3. If the failure of a party suing on a covenant to perform any of the acts which he had covenanted to perform, has been injurious to the other party to the covenant, he may set up this injury as a defence pro tanio to the action. Ibid. 4. Two persons unite to purchase a tract of land, for which they give $3,000 ; and they enter into a contract under seal, by which one of the parties is to pay $2,000, and the other $1,000, of the purchase money, and by the contract the land is to be equally divided between them. Held: Each is to have a moiety of the land. Quaere, If parol evidence is admissible to explain what is meant by the equal division provided for in the contract. Stubblefield v. Beazely, 5 Grat. 51. 5. Covenant between T. and W.; T. agrees to transport for W. from 1200 to 5000 bushels of salt annually, for, three years from date, if the state of the waters of the Holston and Tennessee rivers permitted; insuring the safe delivery of the same to W. or his consignees, on the top of the bank of the Tennessee river, at any point that W. might direct, W. agreeing to pay to T. $25 per ton. T. reserves the privilege of delivering at Marathon one-third of the salt, and for each part delivered at Marathon the charge is to be twenty-two dollars per ton. For all salt received and not delivered as above, T. is to allow W. one dollar and twenty-five cents per bushel, (and forty-six cents for each barrel;) except that for all salt lost by staving or sinking the boats used, T. is to be charged only fifty cents per bushel, and forty-six cents for each barrel. Held: 1. That the agreement of T. to transport salt, and of W. to pay him therefor, imports an implied covenant by "W. to allow T. to transport and to furnish him with the agreed quantities for the pui'pose. 2. If the condition of the navigation was such that the salt could not be transported, T. was absolved from the obligation to transport it, and "W. from the obligation to deliver it. 3. The agree- ment is not for the transportation of an aggregate amount of salt, in the three years, but for tfte transportation of the amount specified in each year. 4. The election as to quantity, is with the manufacturer and not with the carrier,' and the carrier is entitled to transport within the year all the salt delivered in that year, and if he fails to do so, his right in regard to the quantity to be transported the next year is not affected. 5. The carrier T. is bound to transport, within the year, all the salt he receives from the manufacturer ; and if he fails so to do, he is still entitled to transport the 1200 barrels the next year, but he has no right to call upon the manu- facturer for more than the 1200 barrels. 6. If the carrier wilfully fails to transport the salt received by him in the first or second year, he is bound to transport it in the second or third year, and he can not withhold it and 92 COVENANTS. at the same time call upon the manufacturer to supply what he has already in his hands. 7. In asserting a breach of the contract by W., T. must confine himself to a single year or declare distributively for several years. 8. It is the business of the carrier to attend at the -works of the manu- facturer at such times as suit his convenience, to receive the salt from time to time, as he is ready. 9. In an action by the carrier on this covenant, he can only recover for breach of the covenant by the manufacturer, or for services rendered by himself in accordance with the covenant. White's Adm'x V. Tonaray, 5 Grat. 179. 6. A covenant by two to deliver an assignment of a part of a certain bond by a day fixed, is complied with, by a delivery of the bond, with an assignment of said part thereof to one of the covenantors, before the day. Withers v. Eestend, 5 Grat. 456. 7. Salt works are rented for two-thirds of the salt made, and the lessees covenant to make at least 60,000 bushels of salt in each year. For the failure to make the salt, the proper action is for the damages occasioned thereby, and to the extent of the failure; and not for a specific rent of 40,000 bushels of salt. Prestons v. McCall, 7 Grat. 121. 8. During the first year, the lessees, with the assent of the lessors, assign their lease and the assignees covenant to assume and pay all the contracts, debts and liabilities of the lessees, relating to- the salt-making business: and the next day the assignees take a new lease, paying a money rent. The taking a new lease operated as a surrender of the first and extinguished the liabilities of the assignees prospectively; and as assignees, they were not liable for prior breaches of contract by the assignors. Ibid. 9. The surrender of the first before the end of the year, prevented a breach of the covenant to manufacture 60,000 bushels in each year. Ibid. 10. Though the lessors were not parties to the assignment of the lease, yet as it was made with their assent, which by the terms of the lease was necessary, they have the right to enforce the contract of the assignees to pay the debts of the lessees so far as they are concerned. Ibid. 11. The maker of a note becomes the l^ail of the holder thereof, and they enter into a covenant, by which the maker is to hcjd the note until his liability as bail ceases, and then to return it. The note is not merged in the covenant so that an action could not be maintained upon«it, and the statute of limitations did not run, from the time when the covenant was executed, until the liability of the maker of the note, as bail for the holder thereof, ceased. Bowles' Ex'or v. Elmore's Adm'x, 7 Grat. 385. 12. There is a devise to, J. with a limitation over upon his dying without issue at his death, to his brother R. if R. should survive, or to his repre- sentatives. R. dies in the lifetime of J. J. sells and conveys the land to A. ; and R., though he does not convey the land, is a party to the deed, and J. and R. covenant as follows ; That the said J., for himself and his CREDITOR.— CURATRIX.—&C. 93 heirs, and the said R., as contingent devisee under the will of C. J., (by whom the land was devised to J.,) do hereby covenant and agree vrith the said A. that they will warrant and defend the fee-siniple to said land to him Eind his heirs forever, against the claim of themselves and their heirs, and the claim of any person claiming under them by virtue of the will afore- said, and do relinquish and fully confirm to said A. all the right they and their heirs now have or may hereafter have to said land, or any part thereof to him and his heirs, free from the claim of the said J. and R. and their heirs, and of all other persons in the whole world. Held: 1st. That this covenant of R. extends to the claim of his children to the land, though they claim, not as his heirs but as devisees under the will of C. J. 2nd. That the covenant of R. is a covenant running with the land, and a purchaser claiming under A. a part thereof, by a regular chain of con- veyances, is entitled to the benefit of said covenant for his indemnity against the said claim of the heirs of R. Dickinson v. Hoome's Adm'r et als., 8 Grat. 353. 13. In an action of covenant, for the failure to deliver to the plaintiff possession of a mill which he had rented of the defendant, the plaintiff not having sustained any special damage, he is only entitled to recover the difference between the rent he contracted to pay and a fair rent for the property, at the time when it should have been delivered. A conjectural estimate of the profits, which might have been made, is no legitimate basis on which to fix the damages. Newhrcmgh v. Walker, 8 Grat. 16. 14. In a covenant for the sale of land, possession is to be delivered on a day certain. The last payment is to be made on another day certain sub- sequent ; and on the completion of said payments, the vendor is to convey. The two last are dependant covenants, and in an action by the vendor, to recover the money, he must aver, either that he had executed or that he had tendered the deed. The averment that he was ready and willing to convey is insufficient. Roach v. Dickinsons, 9 Grat. 154. CREDITOR. See Debtor and Creditor. CRIMINAL JURISDICTION AND PROCEEDINGS. See Jurisdiction. CURATRIX. 1. Curatrix having proceeded to administer upon her husband's estate; in the Appellate Court she will be presumed to have been appointed under 94 CUSTOM.— DAMAGES. the 42nd section of the act 1 Rev. Code, oh. 104. Cross' Ex'x v. Cross' Legatees, 4 Grat. 257. CUSTOM. 1. A custom known and acquiesced in by the party affected by it, will excuse the non-performance of a duty prescribed by statute. Governor fw Liggatt v. Withers, 5 Grat. 24. 2. To set up such a defence, it must be specially pleaded and can not be given in evidence under the plea of the general issue. Ibid. 3. It being necessary to plead a custom and acquiescence therein specially, as a defence to an action, and the proof thereof having been admitted under the general issue on the first trial without objection by the plaintiff, the defendant will be allowed to amend his pleadings on the return of the case from the Appellate Court, and plead the matter specially. Ibid. DAMAGES. 1. Parties pulling down a house in town, to arrest the spread of a fire, are responsible for damages thereby sustained by the owner, if the house may be prevented taking fire by the use of means within the power of the parties pulling it down. Beach v. Trudgain et als, 2 Grat. 219. 2. The Court of Appeals, upon affirming the decree of the court below, which does not bear interest, will give damages at therat« of six per centum, per annum, upon the amount of the decree, exclusive of* costs fi"om the time the appeal took effect, until paid. Mulliday v. Machir's Adm'r, 4 Grat. 1. ^ 3. A contract for the sale of a slave provides that the vendor shall have the refusal of him, at the price which he received for him. The measure of damages for a failure of the vendee to comply with the contract, is the difference between that sum and the price for which the vendee sold the slave. Brent v. Richards, 2 Grat. 589. 4. The measure of damages upon the warranty of the soundness of an animal sold, is the difference between the value of the animal, sound as warranted and his value at the time of the sale, in the condition he really was. And the price at which the animal was sold is proper evidence of the value at that time, if sound to the extent of the warranty; and the rule i/ the same, whether the purchaser offers to return the animal or not. Thornton v. Thompson et als., 4 Grat. 121. 5. In a joint action of trespass against several who plead jointly, if the DAMAGES. 95 jury find them guilty jointly, they should assess the damages jointly against all. Crawford v. Morris, 5 Grat. 90. 6. If in such case, the jury assess by mistake, damages severally, the plaintiff may cure the defect by entering a nolle prosequi as to all but one and taking judgment against that one. Ihid. 7. In such a case, it is not correct for the court to instruct the jury that they may sever in the damages, and assess vrhat, in their opinion, each party, found guilty, ought to pay. Ihid. 8. In such a case, the jury should assess against all who are found guilty, the amount which they think the most guilty should pay. Ibid. 9. In such case, therefore, an instruction to the jury that they may sever the damages, is not an error of which a defendant can complain in an Appellate Court, though the plaintiff may. Ihid. 10. An injunction is dissolved and on appeal the decree is affirmed. The ten per cent, damages is not to be computed for the time the case was pend- ing in the Court of Appeals. . Jeter v. LangTiorne, 5 Grat. 193. 11. In an action of covenant for the failure to deliver to the plaintiff possession of a mill, which he had rented from the defendant, the plaintiff not having sustained any special damage, he is only entitled to recover damages for the difference between the rent contracted to be paid and a fair rent for the property when it should have been delivered. A conjectural estimate of the profits which might have been made, is no legitimate basis, on which to fix the damages. Newhrough v. Walker, 8 Grat. 16. 12. A jury of inquest, in a mill case, are induced by the opinions expressed and facts stated by the father of the applicant, to report that no person will sustain damage from the dam allowed to be built, and the inquisition is confirmed by the court. This inquest and judgment is no bar to an action for damages, sustained by the father against a vendee of the mill, which were not actually foreseen and estimated by the inquest. Calhoun v. Palmer, 8 Grat. 88. 13. The conduct of the fether does not defeat his right to recover damages for the injury he has sustained. Ihid. 14. Where a mill-owner does not raise his dam, at first, as high as he is authorized to do, that will not preclude him from raising it to the full height authorized by the inquest, provided he does not thereby occasion injury to others. Ibid. 15. The father having united in the conveyance of Jhe mill to the vendee, he cannot recover damages for any injury done to him by the erection of the dam, to the extent the injury existed at the time of the conveyance. Ihid. 96 DEBT. 16. A bill of exchange having fallen due and been protested before the act allowing three per cent damages, and interest upon the cost of protest, went into operation, such damages and interest are not recoverable thereon. Friend v. WilJdnson and Hunt, 9Grat. 31. 17. The measure of damages in an action upon a prison bounds bond, is the debt, interest and costs. MoGuire et ah. v. Pierce, Assignee, dec, 9 Grat. 167. 18. A petition for an appeal having been presented to the court, before the 1st of July, 1850, though an appeal was not allowed until after that date, no damages are to be allowed upon affirming the appeal. Prke v. KyU, 9 Grat. 247. 19. Pending a bill for an injunction to a judgment, and for the rescission of a contract for the purchase of land, on the ground of an incumbrance and defect of title, the vendor removes the incumbrance and perfects the title. The injunction is properly dissolved, but without damages and with costs to the plaintiff. Young's Adm'r and Bowyer v. McClung et dig., 9 Grat. 336. 20. In the absence of evidence clearly showing that the damages assessed by a jury of inquest are insufficient, the inquest taken on the ground must be deemed conclusive on the question. Muire v. Falconer et ah., 10 Grat. 12. 21. A purchaser coming into a Court of Equity to injoin a judgment for the purchase money of land, though the title is afterwards perfected, is entitled to his costs. Beeves v- Dickey, 10 Grat. 138; Jaynes et al. v. Brock, Id. 211. '22. The damages on the dissolution of an injunction to a judgment, become, as to the party in whose favor they are, a part of the judgment, and are as such, a lien upon the land of that party. MicJiavs^s Adm'r v. Brown et als., 10 Grat. 612. 23. In actions by passengers against carriers for injuries sustained, the judgment of the jury, as to the amount of damages, must govern, unless the damages are so excessive as to warrant the belief that the jury must have been influenced by partiality or prejudice, or misled by some mistaken view of the merits of the case. Farish & Co. v. Reigle, 11 Grat. 697. i DEBT. 1. An action of debt on the official bond of a sheriff for the misconduct of his deputy in serving an execution, must be at the relation of the plaintiffs in the execution. Governor for Leightons v. Hinchrmn. et als., 1 Grat. 156. DEBTOR AND CiREDITOR. 97 2. An acknowledgement qf indebtedness in a deed, by the grantof to the grantee, -will sustain an action of debt. Newhy v. Forsyth, 3 Grat. 308. 3. In deolating upon such an acknowledgment of indebtedness in a deed, it is not necessary to set out more of the deed than that which contains the acknowledgment, a,nd this; according to its legal effept. Ibid. 4. An instrument, binding the parties thereto to pay a sum of money, purporta to be under their hands and ' seals, but it is signed by one of the parties without a seaJ., and by the other parties with seals to their names. One action of debt may be brought against all the parties, Bankin v. Roler etaU. 8 Grat. 63. 5. In an action of debt, under the plea of payment without a bill of par- ticulars, the defendant may give in evidence the parol admissions of the plaintiff, that but a certain part of the debt is due. Sice's ex'or v. Armat\s adm'r, 8 Grat. 557. DEBTOR AND CREDITOR. 1. Although a creditor having remedies against several persons, each equally. responsible to. him, may proceed to. enforce payment of his debt from either and is not bound to proceed against all, yet he waives this right, by convening all before the Court, and asking that the persons and subject, of right chargeable with the debt, should pay it. Bentley et als, v. Harris adm'r., 2 Grat. 357. 2. A general direction by a creditor to his debtor to remit money to laim, withput prescribing the mode of remittance, does not authorize the debtor to remit, by mail, at the risk of the creditor. The direction mtist be spe- cific, both as to the mode and the subject of remittance, to make it at the risk of the creditor. Gross, Myers and Moore v. Oriss, 3 Grat. 262. ' 3. A benefit which has been secured to a husband to be enjoyed, jointly with his wife and children, cannot be subjected by the creditors of the bus- band. Perkins trustee v. Dickinson ds Co., 3 Grat. 355. Mimdyr. Vawter et als. Idem, 518. 4. A debt (jpntracted in Virginia, between citizens of Virginia,- is not barred in Virginia, by a discharge under the insolvent laws of Maryland, where he was sued, though the creditor appeared and; opposed his debtor's diachajge. MoCarty v. Qihsofi, 5 Grat. 307. 5. A payment, made by a debtor to hjs creditor, cannot be applied by the creditor to a debt arising subsequently without the assent of the debtor. Laws Mi:' org V. Sutherland etal. 5 Grat. S57. , 6. A creditor files a bill againt the executor to subject land to the pay- ment of his d^t, to which suit the devisees are not parties ; and there is a decree, and a sale, and conveyance which is confirmed. The devisees not being bound by the decree, recover the land, ihe creditor having entered into no covenants, and been guilty of no fraud, is not liable either to the purchaser, executor or devisees. Hudgin y.Sudgin's ex'or et als. 6 Grat.J20. & 98 DEBTOR AND CREDITOR. 7. C, makes a contract with a Countj Court for building a Courthouse, and by the terms of the contract he is to give security for its performance. Owing to his insolvency he is not able to give the security but with the con- sent of the County Court, entered of record, he assigns the contract to his son, who gives the security ; the persons becoming security for the son be- ing unwilling to become sureties of 0. The son then sells the contract for $1000. Held: C. had at no time such an interest in the contract, as could be sabj«oted to the satisfaction of bis creditors. CanroU et ofe v. Tiffany, 8. A bill to marshall assets, or for their administration, should be on be- half of the plaintiff and all other orteditors; and the heir* and devisees should be parties. But if the proper parties are not made, the biU should not be dismissed,' but the plaintiff should have leave to amend and make ths proper parties, unless a decree for an account has been made in another suit having the same object. Stephenson v. Taverners, 9 (jrat. 398. 9. If several suits are pending by different creditors, the court will order the proceedings in all but, one to be stayed, and will require the several par- tie? to come in under the decree in said suit, so that only one account of the estate may be necessary. Ibid. 10. A creditor who, with a knowledge that there has been a decree for an account in another creditor's suit, brings a separate suit for his own claim, will be compelled to pay costs. Ibid. 11. A decree in one creditor's suit for an account operates a suspension of all other pending suits of creditors; and they must come in under the de- cree. Ibid. 12. When several creditor's suits are pending, the decree may be made in the cause first ready for hearing, though that is not the first suit brought ma. 13. A creditor at large may maintain a suit in equity to set aside a frau- dulent deed donveying real estate, made by his debtor, both the debtor and his grantor living out of the Commonwealth. Peay v. Morrisson's ea^on., 10 Grat. 149. ' 14. Creditor qualifies as administrator on his debtor's estate, and after exhausting the personal assets in payment of debts, is still a creditor. In a suit by the heirs, in the County Court, the land is sold; and the adminis- trator flies a bill in the Circuit Court, to enjoin the payment of the pur- chase money to the heirs, and asks to have it applied to his debt. Held: Isi. He is entitled to have the proceeds of the land applied to pay his debt. 2d. The injunction should only go to restrain the payment Of the put chase money to the heirs; and should not restrain the collection of it by the County Court. 3d. Though it would have been more regular for the administrator to connect himself by petition or bill, with the liroceedings in the Con'nty DECREES. 99 Court, in -whic^ the fund tad been realized, yet there k no serious objec- tion to the mode adopted by him. The County Court, instead of directing the money to be paid to the heirs, may direct it to be paid to such person as the Circuit Court may appoint to receive it ; or one of the suits may be removed to the Court in which tlie Other is pending. — WitMaw.s v. Wil- liams et als. .11 Grat. 95: 15. A deed admitted to record upon proof by the subscribing witnesses, one of whom was the husband of the grantee, is null and void as to credi- tors ;,Eot having been dulyrecordedi,— JbAwsojii a?M? wife v. Slater et ai. 11 Grat. 321. . - ', 16. A settlement which gives to the grantor a bare maintenance with his wife for his life, and provides tljat the property shall not be subject to his debts thereafter contracted, does not vest him with such an interest io the property as can be subjected to satisfy such aftej: contracted debts. Johnston v. Zane's trustees^ als. 11 Grat. 552. 17. Though a deed be executed without the knowledge of the creditors secured by it, yet, if when informed of its execution they assent to it, it is valid. — Cochran v. Paris etals. 11 Ghrat. 348. Bomce eC als. v. Seaman et als. Idem. 778. ^ , 18. Qv.£Bi:: If a subsequent creditor can file a bill io set aside a deed on the ground that it is voluntary, and therefore void as to prior creditors; no prior creditors complaining of it. — Johnston V. Zame's trustees et als, 11 Grat. 552. DECREES, 1. It is error to decree in favor of a pei-son not a party to the cause in which the decree is made. Bailey's adm'r v. Robinson's, 1 Grat. 4. 2. The Statute 1 Bev. Code, chap, 104, | 63, p. 390, applies as well to creditors by decree, as those by judgment. Biish v. BeaU, 1 Grat. 229. 3. A decree in a proceeding by foreign attachment, against an absent debtor, directs that the home defendant shall pay out of a particular fund, and that the plaintiff shall execute to the ' absent debtor, a bond with the condition prescribed by the statute, which is not done. The decree is no lien upon the real estate of the home defendant. Enders v. The Board of Public Works, 1 Grat. 364. 4. A decree in equity is a lien upon the equity of redemption of real estate, mortgaged fpr payment of debts. Ibid. 5. A parly coming into court, four or five years after a conditional decree, to ask for an award ife \, Spurgin, 6 Grat. 107. 24. In a suit by foreign attachment, the subpoena is seTyed on the ab- sent defendant a^d there is a decree against him for the debt. In another suit brought to enforce this decree, its validity cannot be questioned. Bur- bridge y. Biggins' adm'r, 6 Grat. 119. 102 DECREES. 25. A decree is a lien on the debtor's land ; and the creditor may come into equity to subject the land, though the decree never haa been Eevired against the administrator of the debtor, and no execution has issued upon it. Ibid. 26. A decree against an executor does not bind devisees. Hudgin v. Budgin's ex'or et als, 6 Grat. 320. 27. A decree directing land to be sold unless a sum certain is paid by a day specified, the clerk has no authority to issue execution on the decree without an order of the Court or the Judge in yacation. Shadkhford t. Apperson, 6 Grat. 451. 28. Though circumstances may exist which will warrant the Court or the Judge in yacation to allow process of execution on such an interlocutory decree, these circumstances mu«t be shewn j and if not shewn, it ia im- proper to allow it. Ibid. 29. If an execution is issued on sucji a decree by the clerk, without au- thority, the Court may quash the execution in term, or the Judge in vaca- tion may restrain proceedings thereon, by an injunction order. Ibid. 30. A marriage agreement, though not recorded, having been affirmed by a decree after the marriage, and before the husband became indebted, is valid against the husband's creditors. Datmey and wife et als,,\. Kennedy, 7 Grat. 317. 31. It was not necessary to record the decree to make it valid against creditors of the husband. Ibid. 32. A depree after the death of the husband, in a suit against his admin- istrator, vesting the property in his wife and children, is conclusive against the administrator and creditors of the husband., Ibid. 33. In a bill by a creditor against an administrator and his sureties, charging a devastavit by the administrator and the liability of his sureties for it, tb,ough some of the sureties insist in their answer, that under the circumstances, one of the sureties is liable to the others, if they are liable to the plaintiff j though there is a decree for the plaintiff, and though it appear from the proofs that the devastavit -was occasioned by the payment of a debt of inferior dignity to the surety sought to be charged, yet it is not a case for a decree between co-defendants, Allen & JSrviner. Mwgan's adm'r et als., 8 Grat. 60. 34. A judgment creditor, concluded by a decree in a cause, in which he is a defendant, though he has, at the same time, a suit depending against the same parties to enforce his prior lien. Jones, ahney,%G;nd.i\h.X 3. In such a case it must be proved -that the slave was removed with the assent of the trustee. Ihid. 4. An embarrassed debtor makes a voluntary conveyance to an unmarried woman. Upon her subsequent marriage, the property is settled to her use for life and after her death, to her children. It is not liable for the donor's debts. Bentley et als. v. Ham's adm'r, 2 Grat. 357.§ 5. The acknowledgment of a deed before justices of the peace and their certificate is not conclusive evidpnoe of the complete and perfect execution of the deed. Hutchison and wife y. Bust et als., 2 Grat. 394. 6. The intention of the grantor, as to the execution may be evidenced by his declarations before or at the time of acknowledgment. Ibid. 7. An error as to the date of a deed in the certificate of acknowledgment will not avoid the registry, if its identity is ascertained. Horsley et als. v. Garth et ais., 2 Grat. 471. 8. A deed must be left with the clerk, in order to make it good as a re- corded deed, and the endorsement of the clerk is not conclusive evidence of the date when it was left for record. Ibid. 9. The clerk of a county or corporation Court has no authority to record a deed, which does not convey land in his county or corporation. Pollard's heirs x. Lively, 2 Gr3;t. 216. 10. A copy of a deed, recorded in a county where none of the land lies, is not evidence. Ibid. 11. A deed conveys several tracts of land in several counties, it is only g«od, as a recorded deed as to the land in the county where it is recorded. Horsley et als. v. Garth et als., 2 Grat. 471. * See Code of Virginin, chap. 118, p. 507. t See Code of Virginia, chap. US, $ 7, p. 509. tSee Code of Virginia, chap. 118, § 8, p. 509. J See Code of Virginia, chap. 118, } 2, et leq, p. 508-9. PEEDS. 105 12. An embarrassed debtor, retaining enough to liquidate his debts, con- veys the balance of his property to his wife and children. Held: the deed is fraudulent as to existing creditors. Hunters v. Waite, 3 Grat. 26.* 13. A conyeyance by an insolvent firm, of all debts due them held, under its provisions, only to pass balance, after offset of claim not yet due. Fry & Co. V. Boyd, &c. et als., 3 Qrat. 7&. 14. A conveyance in fraud of creditors, being on a secret trust, partly executed, the trust will be enforced, the trustee not objecting.. Turner and ■. wifiy. Campbell et als., 3 Cti&i.n. 15. A reservation in a deed of trust, inconsistent with the objects of the trust, and in defeat of the same, avoids the deed as to ereditois postponed- SheppardsY. Turpin, 3 Grat. 373. 16. A conveyance on the consideration that the grantee shall pay all debts of the gra,ntor, not signed by the grantee, but acted upon by him, binds him to pay such debts. Van-Meters' ex'ors v. Van-Meters, 3 Grat. ,, 148. 17. A deed is executed by one professing to act under power of attorney ; a sufficient time haying elapsed, to bar a writ of right, without any claim by the original owner or his heirs, the presumption is that he was duly au- thorized. Goodwin v. McCluer, 3 Grat. 291. 18. A. feme contemplating marriage, conveys her estate in trust with in- tent to secure it against the debts of her intended husband, who is noto- riously insolvent. A Court of Equity will so construe the deed as to give effect to that intent ; and if the deed fails to carry out that intent in its terms, the Court will leave the creditor to h.s remedy at law, if he has any. Perking trustee -f. Dickinson & Co., 3 Grat. 335. 19. A sheriff, authorized iby law to sell, conveys land to a purchaser. The recitals in the deed shews his right to sell, after a long lapse of time the recitals are to be taken as true. Bobinett v. Preston's heirs, 4 Grat. 141. 20. An instrument with a scroll attached to the grantor's name, though not recognized in the body of the instrument, held a deed when acknow- ledged as a deed in Court, to be recorded. Ashivell v. Ayres et als., 4 Grat. 283'.. 21. A deed lost a,fter acknowledgment and before recordation, cannot be set up against grantor's creditors, though the loss does not affect the equita- ble estate, acquired by the grantee's purchase, as between the grantor and grantee. Withers y. Carter et als., 4 Grat. 407. 22. To authorize the admission of an old deed in evidence without proof of its execution, there must be proof of possession according to and under *See Code ofVirginia, chap. 118, } 2, p. 508. 106 DEEDS. the deed, and proof of possession commencing fifteen years after the date of the deed and not until a conveyance by the grantee in the old deed, is insufficient. Shanks et als. t. Lanoaskr, 5 Grat. 110. 23. It is asuffieicnf by an attorney in fact for his principal, if he signs the name of the principal, with the seal annexed, stating it to be done by him as attorney for the principal ; or if he signs his own name, with a seal . annexed, stating it to be for the principal. Ibid. 24- A deed of a husband and wife, executed under a power of attorney is good as to the husband, but void as to the wife. IMd. 25. A party claiming title under a dee^d from a Collector of the U. S. for land sold for direct tax, must shew that every thing had been done which the law required, before making sale. The deed is not prima facie evi- dence as to that. Jesse v. Preston, 5 Grat. 120. Keitli v. Preston, Id. 26. Neither a parol agreement before nor after the execution of a deed, conveying land by will defined boundaries, can have the effect of embracing, in the deed, adjacent lands. Pasley v. English et als., 5 Grat. 141. 27. A deed was acknowledged before a clerk out of his office, lie endorsed on it, that it was on that day exhibited in his office, acknowledged by the parties thereto and admitted to record and then took the deed to his office and deposited it there. The deed was valid as a recorded deed, from the date of the certificate. Carper et als. v. MeDqwdi, 5 Grat. -212. 28. A certificate of the clerk that a deed was acknowledged in Court by husband and wife, and ordered to be recorded, is not sufficient to make it her deed. Healey et ah. v. Bowan et als., 5 Grat. 414. 29. The owner of land having conveyed it by deed duly executed and delivered, a second deed from him to the same grantee is wholly inoperative. Evans and mje v. Spurgin, 6 Grat. 107. 30. A deed executed by a woman a few days before her marriage to se- cure a debt to her daughter by a former marriage, held to be valid. Fletcher and wiyi V. Ashley et als., 6 Grat. 332. 31. A deed of trust held to be fraudulent, though executed to indemnify a bona fide security. Spence v. Bagwell et als., 6 Grat. 444. 32. A husband conveys an interest in personal property, though not to take effect until his death. Although he reserves the power to sell and re- invest on account, and also the power to reappoint among specified objects, the deed is valid to bar the wife of her distributable share therein. Gentnj et als. V. Bailey, 6 Grat. 594. , 33. A father, wealthy and unembarrassed, executes to his daughter, to be paid upon her marriage, a bond. She marries, and after her marriage, her fa,ther being embarrassed to insolvency, executes a deed conveying property DEEDS. 107 to secure ihe payment of this bond. The deed is valid against creditors of the father. Wells v. Cole et dls., 6 Grat. 645. 34. A deed is properly admitted to record, upon the certificate of acknow- ledgment, describing the officers who made, it as aldermen of New York. Ibid. 35. The sheriff, representing the creditors of an insolvent debtor, may sue to set aside a fraudulent conveyance of the insolvent. Olough, &c. y. Tlunr^son, 7 Grat. 26. 36. A grantor reiuaining in possession of personal property he has con- veyed. It is prima fade evidence of fraud. Curd v. Millar's elisors, 7 Grat. 185. 37. W. largely indebted, gave slaves to his daughter, whose husband re- tained possessibn of them for eight years. Judgments were obtained against W. for debts due both before and after the gift, and B. became se- curity for W, on the forthcoming bonds, had to pay the money. Upon his obtaining judgment as security against W. the slaves and their increase were held liable to the execution of B. 38. Under the words in a deed, " all debts due to the grantor," the in- debtedness of a partner of the grantor to the partnership and a claim which the grantor has against a foreign government for damages for the detention of his ship will pass. Oriffin's ex'or efals. v. A. Macauley's adm'r, 7 Grrat. 476. Dismal Swamp Fund Co. v. Same, Id. 39. Deed of trust held to be valid against creditors, securing a loan of money not to be enforced-for ten years ; conveying without schedule, house- hold furniture, &o., to secure a debt, but not to be enforced for eighteen months ; also conveying land to secure a debt, but not to be enforced for two years and then only Upon notice of sale for 120 days, alUiough the ex- ecution of the deed is postponed for five years from the date of the convey- ance, and the rents and profits of the property in the meanwhile are reserved to the grantor. Lewis et als. v. Caperton's esfor et als.; 8 Grat. 148. 40. A deed conveying the future rents and profits of property conveyed in other deeds, and which were reserved to the grantor in the previous deeds, is valid against creditors of the grantor. Ibid. ,41. A post nuptial settlement made by a husband on his wife, of her personal property, derived from her father's estate, but of which he retains the possession, not having been properly recorded, is void against creditors of the husband. Ibid. 42. A deed made by a husband in embarrassed circumstances, by which he conveys the proceeds of his wife's land, which had been sold, and the note, for the purchase money, made to him, in trust for himself and his wife for their lives and the life of the survivor, and during his life to be under his management and control, is fraudulent and void as to creditors. Ibid. 108 DEEDS. 43. A deed conveying land to secure a bona fide debt due to the grantee and also a debt to the grantor's wife, which. latter debt is voluntaiy and fraudulent as to his creditors ; and the nature of which debt is known to the grantee, is null and void as a security for the first afi well as the last mentioned debt, as against subsequent incumbrancers and creditors of the grantor. (By two Judges.) Ihid,. 44. A deed from a commissioner under a decree, offered in evidence, must be fortified by so much of the record of the cause as will shew his authority. Coles v. Miller et ah. 8 Grat. 6. 45. A deed by a commissioner under a decree, directing a conveyance of land to which none of the parties to the suit had title or possession, conveys nothing. Ibid. . 46. A deed, which shows upon its face that the parties to it resided out of Virginia, was properly admitted to record upon the certificate of ac- knowledgment, by the Mayor of a city in another State, describing him- self, as such and purporting to be under the seal of the City. Ibid. 47. The certificate is snficient evidence that the grantor resided for the time being in the State, though the deed describes him as a citizen of an- other State. Ibid. 48: It seems that a residence however brief is sufficient to authorize the acknowledgment of a deed there by a non-resident of Virginia, under the act of 1792. Chap. 90, § 5. Ibid. 49. A deed executed under a power of attorney, commences in the name of the grantor by the attorney and is signed in the name of' the attorney for the grantor. Bryan v. Stump, 8 Grat. 148. 50- A deed which conveys all the property of the grantor in trust for the payment of his debts is valid, tho'ugh it provides that no creditor shall take any benefit under it, who does not, within thirty days signify his ac- ceptance of its provisions and agree to release the grantor from all further claim for the debt acknowledged therein. Phippen v. Durham et cUs.i Grat. 457. 51. A deed, with an acknowledgment certified by the Mayor of New York, intended to be made under the act of 1785, though the certificate bears date a short time before the act wont into operation, may be admit- ted to record.--Bas?er's lessee v. King, 9 Grat. 115. 52. Though not admitted to record within the time prescribed by the act 1785, it was properly admitted in 1833 under the act of 1819, and being authenticated for record is admissible in evidence without further proof, though not recorded. Ibid. 53. Both parties to a suit, trace their title to a deed recorde,d in the County of H., the land lying in another county, the subsequent deeds, DEEDS. 109 through which the defendants claim refer to .the deed as recorded in H. They- cannot object to its validity for want'of registry in the county where the land lies. Samun et aU v. Harman, 9 Grat. 146. 54. A commissioner for the sale of delinquent lands conyeys under a power, and a deed executed by liim to other persons than those reported by him as the purchasers, can avail nothing where his authority to ttiake it does not appear, unless long acquiescence and possession raises a presump- tion in its favor. Walton v. Hale 9 Grat. 194, 55. The recitals in such a deed are not evidemce against a party claiming adversely to the deed. Ibid. 56. A deed couTeys land, mills and appurtenances, which includesi an acre of land on the opposite side of the stream, condemned for an abut- ment, and reserves the right to build a saw njill on the opposite side of thei stream or at the further end of the stream, the reservation is uncertain and ejeptment can not be maintained for it. Bvtehe(r v. Creels heirs 9 Grat. 201. 57. The principle which is applied to wills in respest to the capacity to make a valid devise applied to deeds." Qreer v. Greers 9 Grat. 330. 58 Although a grantor may labor under nolegal incapacity to do a valid act, yet if the whole transaction, with all the facts, mental weakness being one of them, shows that the particular act was ulot attended with the con- sent of his will and understanding, it is void. Ibid. 59. A., largely indebted makes a gift of slaves, but retains possession of them, subsequently he makes a. deed of land to the donees, in lieu of the slaves. Held[: void as to creditors. Fores v. Bice etals. 9 Grat. 568. 60. In such a case, the grantee's being females and having married, the d,eed will be void as to the husbands, unless they show tbat the marriage took place before the creditors recovered their judgments, but the deed be- ing valid between the parties, any other land of the grantor's will be first applied to pay his debts. Ibid. 61. Monomania, in no way connected with the subject of a contract, will not invalidate a bond and deed, made in execution of the pontracti Bogce's adm'r et als. v. Smith 9 Grat. 704. 62. A creditor at large may maintain a suit in equity to set aside a frau- dident deed, conveying real estate, made by his debtor, both the debtor and the grantee living and being out of the Commonwealth. — Peay v. Morris- son's exor's 10 Grrat. 149. . 63'. A father conveys to his daughter for the use of herself and her hus- band and their joint heirs, slaves, to have and to hold to the daughter, her husband and their heirs; &c. The deed conveys to the daughter and her husband a joint estate. — Cleland v. Watson, 10 Grat. 159. 110 DEEDS. 64. Two deeds are executed at the same time, by and tp the same par- ties, one conveys a tract of land, except the part covered by a decree in fa- vor of H., the other conveys a tract of land embracing the land covered by said decree, but without reservation. Held: they are to be taken together as parts of the same transaction, and the reservation in one operates upon the oihei.— Anderson v. Harvey's heirs 10 Grat. 386. 65. A deed conveys part of a tract, beginning at a certain pointin a sur- vey mentioned, though there is an obvious mistake in some of the calls of the survey, the beginning comer must be, as in the deed. Smith et ah. V. Chapman, 10 (Jrat. 445. 66. An actual possession of land, claiming adversely, does not prevent the operation of the deed made by the commissioner of delinquent lands, conveying to the purchaser the commonwealth's right to the land. Ibid. * 67. A deed of trust and power of attorney executed at the same time to same party are to be construed together. French v. Tovmes d ais. 10 Grat. 513. 68. Virginia, by statute, cedes to the United States 250 acres of land and directs the Governor to convey it. He directs a survey. And upon the surveyor's report executes a deed, taking course and distance from the report, but without reference to it. In determining the boundaries, the sta- tute, report and deed must bo looked to, to define them. Frertch v. Banh- head, 11 Grat. 136. 69. Looking to the statute, report and deed, the intention was to convey to high water mark. Under the act qf 1 Rev. Code 1819, ch. 87, p. 341, the conveyance by high water mark boundary passed the soil and jurisdic- tion to low water mark. Ibid. 70. A husband is not a competent subscribing witness to a deed convey- ing real estate to his wife, either to prove due execution or to have it ad- mitted to record and if admitted to record, on proof of the husband, is void as to creditors. Johnston and wife'\. Slater et al. 11 Grat. 321. 71. A deed of trust conveying crops &c., not to be enforced for two years is not fraudulent per se, and though executed without the knowledge of those secured, if when informed of it, they assent to it, it is valid. Coch- ran V. Paris et als. 11 Grat. 348. Dance et als. v. Seaman et als. id. 778. 72. if a dee4 of a defendant is collaterally introduced, upon a tria;l, he may shew it is not his deed, without making oath to the fact. — Harrison v. Middleton. 11 Grat. 527. 73. A party claiming under a deed from a, Deputy for delinquent land, sold under the act Feb. 9th 1814, must show that the person described' as high sheriff was such, and that the grantor in the deed was his deputy. Hobb's V. Shumater, 11 Grat. 516- DEFEASANCE. HI 74. Thougb sucli deed recites an insufficient advertisement of the pro- perty conveyed, it is not thereby vitiated, but is valid to convey such title as by law, ihb sheriff was authorized to convey. Ibid. 75. A deed which amply provides, in the first pl^ce, for all the then ex- isting debts of the grantor and then settles the balance of his property on the grantor's family, in the absence of actual fraud, is a valid dbed. John- aton V. Zane's trustees ei als. 11 Grat. 552. 76; To avoid a deed, at the suit of a subsequent creditor, actual fraud must be shewn. Ibid.* ' ' 77. A conveyance of land by the commissioner of delinquent lands, passes the title vested in the commonwealth, though the l^rud is in adverse pos- session of another. Levasser v. Washbume, 11 Grat. 572. 78. A deed conveying land then, and continuing to be, in the actual ad- versary possession of another, cannot operate to pass title to the grantee. Knicheloe v. Tracewells, 11 Grat. 587. , 79. A conveyance of land and slaves upon trust to permit the slaves, to live upon the land and take the profits thereof and their own labor to their own use, they still continuing slaves, passes nothing to the grantee or to the slaves. Smith adm'r v. Betty et als. 11 Grat. 752. 80. Neither the declarations of the grantor before or after the execution of a deed, nor the declarations of the agent in procuring the deed for aiiother, before the negotiation was commenced or after the execution, are competent evidence against the grantee in the deedj to show fraud. But the acts and declarations of such agent, done or made while the negotiar tions were pending, or the deed was in process of execution, are competent evidence against the grantee to show fraud. Ibid. See Mortgage, and Delinqdent Lands. DEFEASANCE. , C. makes an absolute bill of sale of slaves to F. for value; and F. executes to him an obligation, that upon C.'s producing evidence of the paymenjt of a certain debt for which F. is bound as surety for W., that he will cancel the bill of sale. This is npt a mortgage, but a conditional defeasance. Forkner-v. Stuart, 6 Grat. 197. * See Code of Va. chap. 118 § 2 p. 508. 112 . DELINQUENT AND FORFEITED LANDS. DELINQUENT AND FORFEITED LANDS. 1. The provision in the act of March 30, 1837, to amend and explain the laws concerning western land titles, which directed that commissioners- of delinquent lands should he appointed in each county, at the next fall term of the Superior Court, is merely directory, and such commissioners may be appointed at a subsequent term. And if a new county is afterwards crea- ted, such commissioners may be appointed therein. Hoge v. Currin 3 Grat. 201. •" 2. On a sale of land under the tax laws, the commonwealth does not warrant either the title or description of the lands sold. Ibid. 3. The recitals in the deed of a commissioner of delinquent lands, are not evidence against a party claiming adverse to the deed. Walton v. Hak, 9 Grat. 194. 4. A commissioner for the sale of delinquent lands conveys under a power, and a deed executed by him to other persons than those reported by him as the purchasers, can avail nothing where his authority to make it ' does not appear, unless long acquiescence and possession raises a presump- tion ill its favor. Ibid. 5. The statutes of Virginia forfeiting lands to the commonvrealth for the failure of the owners to enter them upon the commissioner's books and pay the taxes due thereon, are constitutional. ' Wild's lessee v. SerpeU, 10 Grat. 40S. 6. The forfeiture Under'these statutes is perfected without a judgment, decree, or other matter of record, or an inquest of office ; but by the opera- tion of the statutes th6 title is divested out of the owner and is vested in the commonwealth. Ibid. Staats v. Board, id. 400. 7. Lands omitted to be entered on the commissioner's books were forfeited under § 2 of the act of February 27th, 1835, Sess. Acts, p. 12, and the for- feiture became perfect and consummate on the 1st of November, 1836, the period limited in which the forfeiture might be saved by complying with the provisions of the act of March 23d, 1836, Sess. Acts, p. 7. Ibid. Sto- ats V. Board, id, 400, Sale v. Branseum, id. 418. 8. The act of March 30th, 1837, Sess. Acts, p. 9, giving time for redemp- tion until the 15th of January, 1838, did not release the forfeiture which had accrued, except in cases where the owner or proprietor availed himself of the privilege of redemption. Staats v. Board, 10 Grat. 400. 9. From the time that land is forfeited to the commonwealth, under the act of 1835, Sess. Acts, p. 11, time will not run in favor of a party in pos- session, against the commonwealth, or those claiming under her by patent. Ibid. Hale v. Branseum, id. 418. 10. Qu.bre; Whether after the lien of the commonwealth for taxes at- DELINQUENT AND FORFEITED LANDS. 113 taches to lands, any possession adverse to the proprietor can operate so as to impede the right of the commonwealth to subject said lands to sale or forfeiture for such taxes ; and, as a consequence, to transfer to a purchaser, or vest in an actual occupant, or subject to re-entry and grant, such forfeit- ed lands. StacUs v. Board, 10 Grat. 400. 11. Where the title is vested in the commonwealth and the forfeitijre enures to the benefit of a third person claiming under the commonwealth by virtue of another and distinct right, th'e transfer of the title to such' per- son, is perfect and complete, without any new grant from the commonwealth .or any proceeding to manifest the transfer, by matter of recorder other- wise. Wilds lessee v. Serpell, 10 Grat. 405. 12. A party claiming under a grant from the commonwealth isstied in August, 1836, cannot claim the benefit of an older title forfeited to the com- monwealth under the act of February 27th, 1835, because by that act a for- feiture only enured to the benefit of those who claimed title under a grant from the commonwealth, beiaring date before April 1st, 1831. Ibid. 13. Nor can such a party sustain suCh claim under the provisions of the act of March 30th, 1837, unless he is a bona fide occupant of' the land. Ibid. 14. To sustain such a claim under g 16 of the act of March 16th, 1838, Sess. Acts, p. 21, the party must have been, at the date of. the act, in the actual possession and occupancy of the land forfeited^ or a part thereof, with title bona fide claimed or derived under a grant from the commonwealth, which issue'd subsequent to jthe 31st of March, 1831, and prior to the 1st of Janu- ary, 1838. ' Ibid. 15. By the act o| March 18th, 1841, Sess. Acts, p. 31, the forfeiture of title to the commoi&vealth only enures to the benefit of those then in actual possession of the forfeited land, under claim of title through a grant from the commonwealth. Though at that time a party held a patent, for the land, yet, if he was in actuaL possession, under a lease from another person, claiming the elder title, that is not the . actual possession contemplated. Ibid. 16. By the act of March 22d, 1842, Sess. Acts, ? 3, p. 13, the title to for- feited lands is transferred to, and vested in such persons, other than those for whose default the same may have been forfeited, as had title or claim, legal or equitable, derived under grant from the commonwealth, bearing date priOr to the 1st of January, 1843,; without making either actual occu- pancy pr aptual possession of the land, or a bona fide claim of title, any part of the condition on wftoh the transfer of the title takes effect. . Ibid. 17. The act of March 22d, 1842, Sess. Acts, p. 13, is retrospective in its operation. Ibid. 18. Though the land had been reported to the court as forfeited land, and H 114 DELINQUENT AND FORFEITED LANDS. an order had been made for the sale thereof, yet, if not actually sold before the passage of the act, the title is transferred under the statute. Ibid. 19. By the operation of the act of March 5th, 1836, Sess. Aots,.p. 7, the title acquired by the commonwealth by the forfeiture of land for failure to enter it upon the commissioner's books, and pay the taxes vested in the party obtaining a patent for the land, in June, 1846. Eale v. Branaewm, 10 Grat. 418. 20. In a sale by a commissioner of delinquent lands, under an order or decree of the court, no action of the court or the commissioner can alter the point of the beginning corner of the survey of the land sold ; but that must be fixed by the deed. Smith et al. v. Chapman, 10 Grat. 445. 21. In ascertaining the boundaries of the land claimed by a plaintiff in ejectment, vrho claims as a purchaser of part of a large tract sold by the commissioner of delinquent lands, no regard is to be had to any private ar- rangements or divisions by the plaintiff and other purchasers of parts of the same tract of land at. the same sale. Ibid. 22. An actual possession of land claiming the same adversely, does not prevent the operation of a deed made by a commissioner df delinquent lands, conveying to a purchaser the commonwealth's right to the land. Ibid. 23. A purchaser at a sale of lands made by a commissioner of delinquent lands, is not bound to prove that all the previous proceedings of the com- missioner and the court were regular. The proceeding is in the nature of a judicial proceeding, and the orders and decree of the court made in it are conclusive, at least upon all strangers. Ibid. 24:. Land is forfeited to the commonwealth under distinct titles. Upon a proceeding to have the land sold under either title, the sale and conveyance passes all the title vested in the commonwealth. Ibid. ' 25. Land is forfeited under one title in one county, and under another title in another county ; the land in one patent extending into both coun- ties. The court in which the proceeding is first commenced for the sale of the land, has jurisdiction of the subject; and the sale and conveyance under fts decree passes all the title of the commonwealth, though the conveyance under the decree of the court of the other county was first executed. IhH. 26. In a sale of land for taxes, under the act of February 9th, 1814, 2 Rev. Code 542, by the circumstances of the sale which are to be recited in the deed, are not meant all the steps taken by the various officers, which pre- cede the sale; but the circumstances attending the sale itself, viz: That the sale was made at the time and place prescribed for the sale of lands returned delinquent for non-payment of taxes ; if less than the whole lot or ti-aot was sold, how much; who was the purchaser, and the amount of purchase money. Flannagan v. Grimmef et als. 10 Grat, 421. DBMUKRER.— DEPOSITIONS. 115 27. It is not necessary that the deed shall state that the land been had advertised. Ibid. 28. If the deed recites that the land was advertised in a mode that did not conform to the statute, yet as it was not necessary to recite in the deed that, the land had been advertised, the recital in the deed of an insufficient advertisement is not an irregularity on the face of the proceedings, v^hich will aToid the deed. Ibid. > 29. The deed cannot be questioned by parol proof of the failure to ad- vertise the sale as the law prescribes. Ibid. 30. The act of March 18th, 1841, Sess. Acts, p.. 31, relinquishing the commonwealth's right to forfeited lands to a junior patentee in.possession, only applies to those whose patents bear date prior to the 1st of April, 1841. Levassgr v. Washburn, 11 Grat. 572. 31. A patent for that land bad been previously granted by the common- wealth, and had been forfeited under the delinquent laws, passes nothing to the patentee; and a conveyance of the land forfeited by the commissioner of deliuquent land, passes the title vested in the commonwealth by the for- feiture. Ibid. 32. A party claiming title under a deed from a deputy sheriff, for land sold for non-payment of taxes under the act of February 9th, 1814, must show that the person described as high sheriff, was such, and the grantor in the deed was his deputy. Hobbs y. Shumates, 11 Grat. 516. 33. T!^ough such deed recites an insufficient advertisement of the proper- ty conveyed, it is not thereby vitiated ;Lbut is valid to convey such title as by law the sheriff was authorized.to convey. Ibid. DEMURRER. SEE PLEADING. DEPOSITIONS. 1. QcjERe : Whether the testimony of a witness examined to sustain a will, taken down in writing before thjs Court of probat, is to "he read upon the the trial of the issue as a part of the sentence of the Court. Coalter's ex'or ei als. v. Bryan and wife et als. 1 Grat. 19. 2. A person taking a deposition under a regular commission and notice, certifies that the deposition was taken before him, with the addition to his name of "J. P." It sufficiently appears, he was a justice of the peace. Pollard's heirs v. Lively, 2 Grat. 216, 116 DEPOSITIONS. 3. A witness giving his deposition de bene esse, states in it, that he is un- able from his age and health to attend at the Court. This is sufficient to authorize his deposition to be read as evidence upon the trial of the cause. Ibid. 4. The Court of Appeals will presume that a deposition has been taken upon a regular commission and notice, when no objection has been taken to it,' on that ground in the Court below. Ibid. 5. An exception to the admission of a deposition as evidence, for an irregularity in taking it, must state the grounds of the objection, or this Court will not notice it. Barker v. Barker's adm'r, 2 Grat. 344. 6. In taking an account, a commissioner maj take depositions, under his general notice. MeCandlisJl, adm'r, &c. v. Edloe et als., 3 Grat. 330. 7. A deposition given in answer to leading interrogatories, ought not to be suppressed on that ground, otherwise than by order of Court made be- fore the hearing, on motion or petition for that purpose, and founded on an exception endorsed on the deposition vrithin a reasonable time after the return thereof, or on an exception taken at tiie time of the examination, if the party excepting was present. Ibid. 8. An exception to part of a deposition does not designate the part ex- cepted to ; but it is brought to the notice of the court, and acted on by the court, and read under an instruction applicable to it. The objection to the form of the exception does not arise. Charlton v. Unis, A Grat. 58. 9. The caption of a deposition describing it as taken in a proceeding of forcible entry and detainer, is sufficiently accurate to authorize the reading of the deposition, though the proceeding is for an unlawful detainer. Coles V. Miller et als., 8 Grat. 6. 10. In a case of probat, the deposition of an aged witness taken de bene esse, allowed to be read upon proof, either by witnesses or his own affidavit, of his inability to attend the court. Niuikol's adm'r v. Jones, 8 Grat. 267. 11. A commissioner appointed by the circuit court to take depositions, had authority under the act, Sup. Eev. Code, p. 165, | 80, and 1830, Sess. Acts, p. 75, oh. 62, ^ 2, to take depositions in a common law cause. McGuire et als. V. Pierce, assignee, dsc., 9 Grat. 167. 12. Pending a second action on a bond, plaintiff having suffered nonsuit in the first, the deposition of a witness was taken, de bene esse and relied on without objection, there was a nonsuit in the second action ; on the trial of a third action the deposition was objected to, on the ground that no affida- vit was made before the clerk, for issuing the commission. Held: That after nearly eighteen years, the affidavit may be presumed to have been lost; and further, that no objection having been made until after the depo- DETINUE. 117 sition had been read' on the second trial, and after the death of the witness, the objection must be overruled. PerUns, adm'r, v. Hawkins' adm'r 9 Grat. 649. 13. The afEdavit of a witness that from his age and infirmities, he is un- able to attend the Court, without endangering his life, made eight days be- fore the cause is called for trial, is sufficient to authorize his deposition, which had been taken de bene esse, to be read in evidence. Tayloe v. Smitji, 10 Grat. 657. 14. A deposition, purporting in the caption to have been taken in the State and County, designated in the commission and notice and certified by a person who signs with his name the letters J. P. is duly authenticated. MoVbes Y. Shumates, 11 Grat. 616. DETINUE. 1. In an action of detinue for a female slave, the recovery may be not only for the slave named in the vrrit, but for her children born since the coBnmencement of the action. Morris v. Feregoy, 7 Grat. 373. 2. Where a defendant in detinue dies, and the action is revived against his administrator with the will annexed, the plaintiff is entitled to demand from the administrator not only the property sued for; but damages for its detention, and the costs incurred in prosecuting the action against the tes- tator in his life-time. Hunfs udm'r v. Martin's adm'r, 8 Grat. 678. 3. The scire Jhcias to revive the action of detinue against an administrar tor, should suggest the coming of the property into the possession of the administrator since the death of his intestate. And the scire facias not being in the record, nor in the clerk's office of the court below, and no ob- jection appearing to have been taken to it in that court, the Court of Ap- peals will presume that it was in all respects regular. Ibid. 4. Where an action of detinue is revived against an administrator, and judgment is recovered, the judgment for the damages for detention of the property and the costs, should not be against the administrator personally, but against him as administrator; to be leyied of the goods, &c. of his in- testate in his hands to be administ ered. Ibid. 5. The fact that slaves are on the premises of a person who makSs no claim to them, his infant daughter, who claims them, living with him, will not sustain an action of dptinue against him for the slaves, by a party en- titled to them, B. Staton v. Pittman, sheriff, 11 Grat. 99, and Pitiman, sheriff, v. B. Staton, Id. I 118 ■ DEVASTAVIT.— DEVISEES. DEVASTAVIT. 1. An administrator permitting a person who has in possession of closes in action of his intestate in his life-time by assignment for collection, to col- lect the said cJwses, and appropriate the proceeds to his own use, under an invalid claim of title thereto, is guilty of a devastavit. Miller and wife y. Jeffress et als., 4 Grat. 472. 2. Qucere^ What would be the effect generally of a judgment against an administrator de bonis nan, in establishing a debt against the estate, so as to conclude a former executor or administrator, and thereby subject him to a devastavit. Sheldon et als. v. Armstead's adm'r et als., 7 Grat. 264. 3. The prior executor having paid over the assets to the legatees of the heir, with full notice of the claim of the legatees of the first testator and after suit revived against him, such payment constituted a devastavit. Ibid. 4. A part of the assets of the heir's estate having been reta,ined by the prior executor and recovered by suit from his executor by the administrator de bonis non of the heir, the prior executor is to be credited with the amount so recovered. Ibid. DEVISEES. 1. Heirs and devisees are entitled to the rents and profits of the real es- tate descended or devised, until a decree of the Court subjecting them to the payment of debts. Hobson v. Yancey et als., 2 Grat. 73. 2. The heir or devisee is entitled to the interest upon the surplus proceeds of land sold by a trustee after the death of the grantor in the trust deed, up to the time of the decree directing the distribution of said surplus pro- ceeds among creditors. Jones v. Lackland et als., 2 Grat. 81. 3. Upon a bill filed against an executor, to subject land to the payment of a debt, to which the devisees are not parties, there is a decree, and a sale and conveyance Which is confirmed, the decree does not bind the devisees. Hudgin v. Hudgin's ex'or et als., 6 Grat. 320. 4. Testator charges his whole estate with the payment of his debts. De- visees must contribute ratably with legatees to pay debts. Elliot v. CarUsr et als., 9 Grat. 541. 5. Testator by his will gave his wife a plantation, slaves, stock, &o., for life. And he then added, it is understood that my wife is to keep my chil- dren, and raise them, and give them sufficient schooling. Held : 1st. The widow takes the bequest cum onere, and is bound to provide for the support and education of the children, in a manner suitable to her circumstanoee. DISCOUNTS.— DISCOVERY. ' 119 2nd. But if one of the children goes to live with a married aunt, the -widow being willing to keep the child and provide for her, the widow is not bound for the expenses of the child for board, clothing, ■ and education. Oraw- ford's ex'or v. Patterson, 11 Grat. 364. . f 6. It seems that a void condition precedent annexed to a devise of land, will prevent the vesting of the devise in the devisee. 'Maddoxet al. v. Mad- dox's adm'r et als., 11 Grat. 804. See Wills. DISCOUNTS. 1. The act. Sup. Rev. Code, p. 157, ch. 62, authorizing defences in the nature of set-off, authorizes such defences in actions of replevin. Murray, Caldwell & Go. v. Pennington, 3 Grat. 91. 2. In a lease, the lessor covenants to put certain repairs upon the demised property, which he fails to do. In an action of replevin on a distress for rent, the lessee may set off the damages he has sustained by the failure of the lessor to make the repairs. Ibid. DISCOVEllY. 1. A defendant is not bound to disclose or answer matters which will ex- pose him to pains, penalties, or punishment, or to a criminal prosecution. And if he will probably be subjected to danger by his answer, he will be protected.' Northwestern Bank v. Nelson, 1 Grat. 108. 2. If the objection to the discovery appears upon the face of the bill, the defendant may demur. Ihid. 3. If the objection does not appear upon the face of the bill, the defen- dant must claim his protection by plea, or answer, the averments of which, if traversed by replication, must be established by sufScient evidence. Ihid. 4. An answer to a bill of diacovpry is sufficient, when it shews the defen- dant is protected from making the discovery sought in the bill. Ihid. 5. Qucere: If defendant at law may not have discovery and relief founded thereon, after judgment upon a gaming debt. White v. Washington's ex'or, 5 Grat. 645. " 6. The general rule is, that when a party comes into equity for a discov- ery, the court will retain the cause, and give the proper relief founded on 120 "' DISSEISIN. the discovery ; unless where it is sought to be used in a pending action at law. Lyons v. Miller, 6 Grat. 427. * 7. A party to' a cause, is not bound to answer interrogatories which i^ay subject him to a penalty or forfeiture. Poind^r, &c. v. Daw et ah., 6 Grat. 481. 8. This rule is not confined to cases where the purpose of the suit is to enforce the penalty or forfeiture, but extends to those where the discovery itself would expose the party to some action, or any criminal, or penal pros- ecution, tending to the like result. Ibid. DISSEISIN. 1. The entry of the elder patentee upon, and the possession of the land within his elder grant, not embraced by the grant of the junior patented can not oust the junior patentee, if at the time of the entry of the older patentee, the junior patentee had actual possession of the land embraced by his grant. Taylor's devisees v. Burnsides, 1 Grat. 165. • 2 Quaere: "Whether the possession of the junior patentee will be limited to his inolosure, by the actual possession of the elder patentee, of a part of the land embraced in his grant, not embraced within the limits of the grant of the junior patentee. Ibid. And Overton's heirs v. JDavisson, Id, 211. 3. Qucere: If the entry of him claiming under the elder grant, upon his land not embraced in the junior gfant, will limit the junior patentee's ad- versary possession to his actual close. Ibid. 4. If a junior patentee enters upon land' embraced by his own and an elder grant, and takes and holds possession thereof, claiming title to the whole under his grant ; this is an ouster of the elder patentee to the extent of the limit of the junior grant-; if the eldet patentee had no actual pos- session of any part of the land within the limits of his own grant. Over- ion's heirs v. Davisson, 1 Grat. 211. 5. If the elder patentee is in the actual possession of any part of the land in controversy, when the junior patentee enters' upon it, the adversary possession of the junior patentee can only extend to the limits of his enclo- sure, unless he ousts the elder patentee from the whole land in controversy. Ibid. 6. While patented lands remain in a state of nature, the elder patentee cannot be disseised thereof, unless by acts of ownership effecting a change in their condition. Ibid. 7. Though a great lapse of time and other ' circumstances may warrant the presumption of a disseisin or ouster by one coparcener br tenant in DISTRIBUTEES.— DONATIO MORTIS CAUSA.— DOWER. 121 common of another not laboring under disabilities, this presumption is a matter of fact for the consideration of the jury and not a matter of law for the judgment of the Court, or a special verdict. Pwrcdl anA wife et als v. Wilson, 4 Grat. 16. * DISTRIBUTEES. 1. Distributees of a foreign intestate, receiving assets, are responsible here for the debts of their , intestate, 1o the amount of assets received. Sair- ston V. Medley, 1 Grat. 96. 2. Distributees receiving assets of the estate from the administrator, may be compelled to refund for payment of debts, the amounts so received, vrith interest. Cookers v. Peyton, 1 Grat. 431. 3. In general one distributee cannot maintain a suit to recover his dis- tributable share of the estate, without making the other distributees par- ties. SiUings et als v. Bumgardner, guardian, 9 Grat. 273. 4. One distributee, who is guardian of another sues in his own name as guardian, to recover his wards interest and obtains a decree. An appellate Court will reverse the decree because he cannot thus sue, but will send the cause back, that the bill may be amended and the proper parties made. Rid. DONATIO MORTIS CAUSA. 1. A delivery is indispensable to the validity of a donatio mortis causa. Millef anfiL wife v. Jeffress et als., 4 Grat. 472. 2. It is not the possession of the donee, but the delivery to him by the donor, which is material in a donatio mortis causa. Ibid. 3. A bond may be the subject of a donatio morfis causa, whether it be the bond of a stranger or of the donee. Zee's ea^or V. Soak, 11 Grat. 182. ' '' ' ■ DOWER. 1. Husband during coverture sells and conveys land with general War- ranty ; but his wife does not join in the conveyance. By his will, he gives . his whole estate, real and personal, to his wife for her life, remainder to Wr children, she is entitled "to take under the will and also to have her dower in the land sold. MigginiatJum v. Cornwall, 8 Grat. 83. 122 DYING DECLARATIONS.— EJECTMENT. 2. That a provisionfor a wife in her husband!s will should be in lieii of dower, the will must so declare in terms, or the conclusion from the provi- sions of the will ought to be as clear and satisfactory, as if it had been ex- Ibid. * 3. By an agreement in contemplation of marriage, the intended husband bound his estate to pay the intended wife certain sums of money, if she should survive him, which were to be in bar and satisfaction of her dower. This agreement barred her of her dower in her husband's real estate. Findlay's ex'ors v. Findlay, 11 Grat. 43^. 4. A purchaser of land gives bond with security for the purchase money; and eighteen months afterwards gives a deed of trust on the land for further security, and the land is afterwards sold. The widow of the purchaser is entitled to dower in the land. M. Blair v. Thompson et ah, 11 Grat. 441. 5. In. a bill by a widow for dower in land sold in the life-time of her husband, and coming to the present owner, through several intermediate conveyances, the present owner is the only necessary party defendant. lUd. 6. There cannot be a decree for a specific sum in lieu of dower, without the assent of all the parties interested. Hid. DYING DECLARATIONS. 1. On a trial for murder, the dying declarations of the deceased, if made in expectation of death are competent evidence against the prisoner. Hill's case, 2 Grat. 594. 2. The evidence of the deceased's expectation of death, is not confined to his declarations, but the fact may be satisfactorily established by the cir- cumstances of the ease. Ibid. 3. Regularly the Court ought first to ascertain that the deceased was in expectation of death, before allowing his dying declarations to go in evi- dence before the jury, but if first given in evidence, and it appears after- wards that they were proper evidence, it is no error of which the prisoner can complain. Ihid. EJECTMENT, * 1. Ejectment maybe maintained by the Commonwealth or her grantee' against the former owner, for the site of a bridge on a public road located * See Ooda of Virginia, chap. 135, p. 557, et ieq. EJECTMENT. 123 under an act which provides, that when the road is located and a map thereof returned to the clerk's office of the counties through which it passes, the land shall be vested in the Commonwealth for the use of the road. James River & Kanawha Co. v. Thompson & Teays, 3 Grat. 270. 2. Ejectment may be against the party in possession under a perpetual equitable lease. Carrington et ats. v. Otis et als., 4 Grat. 235. 3. Lessee in possession having agreed to take a lease from the plaintiff in ejectment if his title was the best, the agreement will be no bar to a re- covery in the action. Ihid. 4. A general judgment for costs against two defendants in ejectnient is proper, though one of them did not enter himself a defendant until, there had been one trial of the cause, and a large portion of the costs had been incurred. Middleton v. Johns et als., 4 Grat. 129. 5. A person having held actual possession of land for fifteen years, un- der color of title, and being then ousted by another, whO; is a mere tres- passer without pretence of title, may recover in ejectment against such trespasser, though it does not appear that the laud has ever been granted by the Commonwealth. Ihid. 6. A deed conveying lauds, mills thereon, and appurtenances, which in- cludes the acre of land on the opposite, side of the stream condemned fot- an abutment, reserves the right to build a saw mill on the opj>ositp side of the river, or at the further end of the dam- The reservation is too uncer- tain to withdraw any part of the land fr^ the operation of the deed ; and ejectment cannot be maintained for it. Butcher v. Creel's heirs, 9 Grat. 201. 7. A party in peaceable possession is entered upon and ousted by one not having title to or authority to enter upon the land. The party ousted may recover the premises, in ejectment, upon his possession merely; and his right to recover cannot be resisted by showing that there is or may be an outstanding title in another ; but only by showing that the defendant him- self has title or authority to enter under the title. TapseoU-^. Cobhset als., 11 Grat. 172. 8. Where an ancestor dies in possession of land, the presumption of law is, that the heir- is in possession after the death of the ancestor ; and in the absence of all evidence on the point, the heir may maintain ejectment upon the strength of his possession, against any one who has entered upon the land without title or authority to enter under the outstanding title in another. Ihid. 9. In ejectment the jury set out the wills of a grandfather and father ; and if the son, who is dead, took under the father's will, they find for the plaintiff; if he took under the grandfather's will, they find for the defen- 124 ELECTION, dants. The verdict is sufficiently certain, and submits the single question upon the construction of the wills, to the court. CaUis ef als. v. Kemp et als., 11 Grat. 78. 10. Though in ejectment the plaintiffs in their declaration claim the wh6le tract of land, the jury may find for them for an ^ndivided interest in it. ' ibid. * 11. Though where less land is recovered than is demanded, the bounda- ries of the land recovered should be designated, yet where an undivided interest in it is recovered, it is impossible to set out the boundaries ; but the interest being certain, that is sufficient. Ibid. ELECTION. 1. A party cannot claim under a will and against it. Dickinson v. Dick- inson's adm'r et, als., 2 Grat 493. 2. An executor cannot elect to hold a legacy as guardian of the legatee until it is payable, (he being both executor and guardian,) so as to relieve his sureties as executor and change his sureties as guardian. There must . be some act or declaration by him, to indifcate that he holds a legacy as guOTliian. Swope v. Chambers, 2 Grat. 319. 3. The rule that a party shall not claim against and under a will, applies only where the thing demanded is devised or bequeathed to another by the will. Norman's ei^x v. Ounningham and wife et als.,b Grat. 63. 4. Heirs of the wife may claim compensation for land of her's sold by the husband, though they have taken devises and legacies under his will. Ibid. 5. Land is given to husband for life, but with power to elect within three years to have the land sold, and to take a sum of money absolutely. If he elects within the three years, the election is not defeated by his death before the land is sold. Washington's ex' or v. Abraham et als., 6 Grat. 66. 6. A testator gives his mother a legacy worth about $300, and in another clause of his will says: " It is my desire that my mother give my sister A, Abby, with her present and future increase." These slaves belong to the mother. The mother, though she takes the legacy, is not bound to give the slaves to the sister. Crump et als, v. Bedd's adm'r et als., 6 Grat. 372. ELEGIT.— EMANCIPATION. 125 ELEGIT. An elegit issued upon a judgment rendered against a bankrupt iDefore his bajikruptoy, may be in the usual form ; and, in executing it, the sheriff must take notice of the bankruptcy of the debtor, and disregarding all his property not subject to the lien of the judgment, levy the elegit upon that which is so subject. McCance v. Taylor, 10 Grat. 680. EMANCIPATION.* 1. Slaves may be emancipate^ by nuncupative vrill under the Act, 1 Rev. Code, p. 433, ? 53. Phoebe ef als. v. Bogges et al., 1 Grat. 129. 2. A testator, by her will, emancipates certain of her slaves, and then says : '" All the rest of my slaves I lend to my brother and sister equally,* during their lives and the life of the survivor; and on the death of th« survivor, it is my desire that the said slaves be set free." The slaves alive at her death, and their descendant^ born during the lives of the brother : and sister and of the survivor, and those born after the death of the survi- vor, are emancipated by the will. Lucy et eils. v. Chemincmi'9 adm'r,- 2 Grat. 36. 3. A testator bequeaths a female slave to his daughter, " not as a bound slave, but to be under her care and tuition, to receive ws,ges for her labor ; and if she should have children, for them to come under the same regula- tions, after they pay for their raising, but their labor to be equally amongst all my children, if they choose to employ them." Seld : Ist. The slaves are not emancipated. 2nd. The bequest to the daughter is void. 3rd. The testator is intestate as to these- slaves. Wynn et als. v. Carroll et als., 2 Grat. 227. - .* 4. A condition subsequent, annexed to a provision in a will, emancipating a slave is void. Forward's adm'r v. TTiamer, 9 Grat. 537. 5. Slaves emancipated by vvill, though sold under executions on judg- ments against the testatrix, may maintain a suit in equity to recover their freedom, if there be other estate of the testatrix sufficient to pay the debts of the estate, or. if the assets, together with the hire of the negroes for a reasonable time will be Sufficient for that purpose. Jincey et als. v. Win- field's adm'r et als., 9 Grat. 708. 6. The owner of slaves took them to New York for the purpose of eman- cipating them and executed them a deed of emancipation attested by one witness. After remaining there a few days, he returned to Virginia with them, and e*er afterwards he treated them as free negroes. Held: Ist. That the owner of the slaves having taken- them to New York for the pur- * See Code of Virginia, chap. 103, and chap. 106. 126 EMBEZZLEMENT— ENDORSEMENT. pose of emancipating them, they were by the laws of New York free and so continued after their retprn to Virginia. 2nd. That the act? of the owner of the slaves were not such a fraud upon j;he laws of Virginia as ren- dered his acts null and void. Foster's adm'r \. i'osier, 10 Grrsit. 4:85, EMBEZZLEMENT. 1. Under the act of February 9, 1831, for regulating the navigation- of James River, above the'falls, the offence of embezzlement is not confined to owners or captains of boats. Smith's case, 4 Grat. 532. 2. A prisoner sent on by the examining Court to be tried for embezzle- ment of the goods of W. may thereupon be indicted for embezzling the goods of A.; the embezzlement being^of the same goods, for which- he was tried byHhe examining Court. AdcocVs case,. 8 Grat. 661. ENDORSEMENT. 1. Endorsements upon negotiable paper, made for the accommodation, of the drawer, import not a joint, but a several and successive liability, each endorser being responsible, jjriwa/aeie, to all who succeed him. Bank of K & V. £ei™e, 1 Grat. 234. . ^ 2. It is to be shewn by the party claiming the endorsements to have been made with the intention of joint liability, that such was the intention. lUd. 3. An endorser residingJln a district of country, passing under a partic- ular name, and having a post office within it, and being equidistant from that office and another out of the bounds of the district, a notice sent to the first office is sufficient, though in fact the endorser was accustomed to receive his letters and papers from the other office. Band v. Reynolds, 2 Grat. 171. 4. A third endorser having endorsed a note on the feith of the solvency of a prior endorser, and on the renewal of a note, the order of the endorse- ments having been changed without the consent of this third endorser, who for the convenience of renewing the note, had left his blank endorsement with the makers ; a Court of Equity will relieve him as against the endorser vfho should have preceded him. Slagle v. Rusfs adm'r, 4 Grat. 274. 5. Tiie several accommodation endorsers of negotiable paper are respon- sible in the order of their endorsements, unless there has beeifun agreement among them to be jointly and equally bound ; and the burden of proving such an agreement, is upon the prior endorser, Avho seeks the benefit of it. Jlogue V. Davis ei als^, 8 Grat. 4. , ' ■ ENTRY OF LAND; , 127 6. ^u endorsement, om a bon^, though made at a subsequent day, is to be considered as a part of the" bopd. Price v. Kyle, 9 Grat. 247. '■'•'■* 7. An endorsement on a marriage contract, of the 8am6«dat6, is to be con- sidered as a part ol the contract^ *JSidson v. Fontaine, adtn'r^drc. et als.,9 Grat. 286. .' " ' * . ■' 8. An endorsenient on a marriage contract, mipde by the husband after the marriage, cannot have any effect upon the rights'of the wife. Ibid. ■' •# 9. An endorsement on a bond being equivocal in its character, all the circumstances attending the transaction, the cotemporaneous conduct and declarations of the parties, evidence o{ their purposes and motives, may be looked to to ascertain what kind of- instrument was within their confempla- tion and design. Smith's ex'or v: Spider, 10 Grat. 318. 10. The endorsement being, " Membtandum : If I do not collect tjje money due on the within note of 'my nephew, during my life, then it is never to be collected, and I give it to him. F. S." Held: Part of the bond, and irrevocable without destroying it. Ibid. * '•* ' • 11. In an indictment for forgery, the description of the writing as the endorsement of the person whose name is forged, will not vitiate the indict- l, inent, though the simulated liability might notbe that of technical endorser, ., but of a differenfr character. Povxll's cq^e, 11 Gia,t.S22. '■., ENTRY OF LAND. i 1. A party can only fnake an entry of so mi^h land as will be covered by the warrants under which it if made ; and W- the entry is made by spe- cified boundaHes, and these l^undaries contain so much more land than his warrants authorize him to enter, that the quantity he is authorized to enter may- be laid off in different lines of the entry so that they will not embrace any part of the same land, the entry- is void for uncertainty. Harper ch Weston V. Baugh & Seguine, 9 Grati 508. 2. If another person makes an entry calling for the same boundaries as the first entry, and entering all the lands embraced in th^se boundaries not covered by the fio-st entry, as the first entry is void for uncertainty, so also is the second entry void for uncertainty. Ibid. ' 3. The pai?ty making; the first entry having procured other warrants suffi- cient to cover all the lands within the boundaries specified in the first entry, ^not covered by the warrants under which the first entry was made, ma-kes a second entry of all these lands not covered by the first entry. The first entry being void for uncertainty, the second entry is also void for the same cause. Ibid. _ 128 ' EQUITABLE DEFENCES AT LAW, " ,. \ ' , f - 4. The two entries of the first looator%eing in fiSct ijistinct entri-^, they can not be treated as onp entry, covering the whole land,, and thus avoid the objection for uncertainty in tlie entry .^^ Ibid.' . ,.■ - .'*»,• 5. An entry of waste and,unappropi»atQd land, to. bff' valid, must call for objects which jpossess. that notoriety in themselvesj orthey jnust be so par- ticularly described, that other peftorts, by .using due caire and reasonable diligence, may readily find -them. MiNeel v. Her^d, 11 Gti^. 309. '*''.,-.-* w. ' , ,6. The general or descriptive calls, and tjie particular or loeative calls of the entryj must possess^that reasonable degree of certainty which will put a subsequent adventurer duty upon his guard ; and |he locative calls must be found te be embraced within the descriptive calls, and they should prop- erly be consistent with the latter,- and with one another; though, in certain cases, where all the calls of an entry cannot be satisfied, the courts, for the purpose of sustaining it, will reject suchas appear vague and repugnant, and ho^ to those appearing to be certain and coBsistei^;. Ibid. » 7. Th% objects called for are sometimes so connected with the genejfal Ms: toryior geography of the country, or its legislation, that the courts wUl Jak^ notice of ^lem, and, they will be deenftd of general notoriety,'' and sufii- , ciently identified without further proof. Ibid. ' • ' 8. When the objects called for possess but a local notoriety, the party af-' firming the validity of the entry^ust prove- the identity of the land in- 'tended to be appropriated, an^ that the calls of -the entry are such that 'if sabsefuent locator, in the exercise of proper judgment and reasonablo'te^* genoe, would be enabled to distinguish it from the surrounding lands, so as" to appropriate for himself the adjacent residium. Ibid. EQUITAB'LE DEFENCES AT LAW., ' j 1. The act. Sup. Bev. Code, p. 159-60, authorizing defendant inejeet- meut or writ of right to set up an equitable title as a defence to the action, limits the defence to cases .Yhere the whole contract, and its precise terms, are manifested by plain written evidenpe. The written contract itself must be produced to the jury, and parol evidence of its contents is inadmissible, though it may have been lost or.destroyed, Davis el als v. Teai/s et ak., 3 ttrat. 283. , 2. '^he equitable defence under this statute is also limited to mortgages and deeds of trust, where the 'mortgage money has been fully paid, or the trust completety performed,, or to sales where the vendee has paid all the piirchase money, and performed everything incumbent on him, so as to en- title him to specific execution of the contract in equity, and a conveyance of the legal title without any condition proper in equity to pe on him im-' pose^ It miJst be a sale, and not a partnership in the acquisiticp of the land, and the terms of the Contract must be plain. Ibid. EQB'ITABLE DBFINCBS AT LAW. 129 3. The 62 section pi the act Sup. Rqr. Code p. ,157 authorizes the equita- ble defences allowed hy that statute to bsvinade in -fclKS a^ti^n of replevin. Murray, Calckoelld) Co. v. Penninglon. 3 Grat. 91. , ^ ■ ' , '' 4. In a lease, the lessoir covenants to put certain repairs upon the demised premises, which he fails to do. In an action of replevin on a, distress for rent,"the lessee may set-off the damages; he has sustained, by the failure of the lessor to make the repairs, tkid. 5. Upon an action on. a bond given for the hire of two sla,yea,.one of whom was never delivered tQ the hirer, he is entitled under a special plea filed uiHjer the;a(;t of April 1831, Sup. Eev. Code, p, 157 to a credit for the hire of the slave not delivered. Ishell's Adm'r v, Nqrvell's E^or. 4, ■erat,176. \ r' '' '■'" '. " '■'■''' \ \ /6. If a plea under the statute authorizing equitable defences at law) sets up a, defencf^npt, authorized by the statute, but which is a substa^^tial claim against the plaintiff, and he doea^ not demur or move to_ reject the plea ; after verdict it is curjgd by the statute, gf jeofails. Pence for &o., v. Huron's Ex'ors. 6 Grat. 304. \ ', 7. Quaere : If a breach of a covenant of vvarranty in a deed fet land njay be^^t up as a. defence to the ao.tjon, linder the act authorizing the setting up of eertain defences, by- fecial plea, in the nature of the plea of set-off. Ibid. ,.' '■ . - .8. In a plea, undeE„ the' statute, relying W fraud, in a contract for the hire of a slave ; to an aotipni on the bond for -the hire, the plea should set out the oontraet of hiring according to its terms or lega,l effect, and should allege' distinctly any ftaud or warrantee . in regard to it, upon which they found theii" defence. , JToweZZ, (fee, v,. CoioZes. -6 Gr^t. 393.. ■ 9. In an action, on a bond ^ven for the purchase money of land, the act of 18S1 does not authorize a plea of failure of consideration upon equitable grounds, which would require a resoision of the contract out of which the bond originated, and a reinvestment of the, obligee with the interest in the land, alleged tb have been sold to the obligor. Shifleti, &c., v. The Orange Bumwne Society. 7 Grat. 297. 10. In an action on a bond given for the price of a slave, a special plea under" the: act of 1831 may aver, in general terms, the unsoundness, and ihe knowledge and fraudulent" concealment of the plaintiff; that on dis- covering the unsoundness the defendant offered to return the slave and de- nianded.,'a, recission -qf the contract, which, plaintiff refused ; laying^ t;he damage at the whole amount of the price, or. not laying any damage, and praying for judgment in bar of the action. Fleming y. Toler. 7 Grat. 310, '' ' ^ . . 11. If such special plea avers, in general ternis th^ unsoundjtess, of iJie 130 EQUITABLE JURISDICTION AND RELIEF. slave and then adds a.speoific unsoundness, the defendant may, under- this plea, prove any unsoundness and is not confined to the specific unsoundness mentioned in the plea. Ibid. EQUITABLE JURISDICTION AND RELIEF. 1. A court of equity may sequestrate the rents and profits of mortgaged or encumbered property, where a forfeiture has accrued { and such rents and profits, are necessary to discharge the incumbrances. Clarke v. CwUs. 1. Grat.289. 2. The rents and profits received by the mortgagor or equitable owner, in possession, or which have accrued before an order of sequestration is made, cannot be recovered" by him from the mortgagee or Tendor. I^id. 3. A court of equity has no jurisdiction to enforce the liability 6f justi- ces for failing t6 take sufficient security upon the appointment of a guar- dian. Austin V. Sidkardson. 1 Gratt. 310. 4. A court of equity has no jurisdiction, to enforce the liability of the okrk for failing to take a good bond. Ihid. . 5. Bill having been taken for confessed as to one of sevejal eureties in a guardia;n's bond, which is void, should be dismissed as to him as weD as to others vVho had made defence. Ihid. 6. A oou,rt of equity wiU entertain the suit of a judgnjent creditor, when the debtor has, subsequent to the judgment, conyeyed his land in trust for the paymeot of the debts, or on other trusts authorizing, the sale of the laud and in such case the court vrill decree a sale of the land to satisfy the judgment. Taylor's Adm'r et als v. Spindle. ^ Grat. 44. 7. It is not necessary that a judgment creditor should have issued an elegit on his judginetit, before coming into equity fbr relief. Ihid. 8. A court of equity will enforce a decree obtained against an executor in a former suit against his sureties. Hohson v. Tancey et ais,^ 2 Grat« 73,. \ 9. A purchaser of land at a judicial sale can only obtain relief for defects of title or encumbrance^ on the property, by resisting the confirmatioii of the sale by the court, upon the return qf the commissioner's report. Threh Jcelds V. Campbell. 3 Grat. 198. ID. The justices before whom a cause was tried, having left the bench, after the verdict was rendered, so that a motion for a new trial could not be' made to them, a court of equity will grant it. Knifong v. Hendricks et als. 2 Grat. 212. 11. A court of equity will correct a mistake either of law or fact of the EQUITABLE JUKISDICTION AND BELIEF. 131 seriyener in .drawing a deed, eyen against bona fide creditors of the grantor. Alexander <& Co. Y. Newton et all, 2 Grat. 266. 12. A tenant by tlie courtesy of lands, purchases the reversionary interest of one of the heirs, another interest is held by infants. A court of equity will decree a partition of the land at the suit of the purchaser and tenant by the Ooijrtesy. Otley v. McAlpin^a heirs. 2. Grat. 340. 13. A court of equity has jurisdiction to grant relief, in a case where a judgment has been obtained against the obligor in abbnd by the assignee thereof, under a fbrged assignment. Jameson's Adrti'x v. Deskklds. 3 Grat. 4. 14. A court of equity has no jurisdiction to Testrain one joint devisee of land, from entering thereon, at the suit of a tenant claiming under other devisees. Baldwin v. Barsi. 3 Grat. 132. 15. The relief afforded in the case oi Marks y. Morris, 2 Munf. 407 is not 'appropriate to the case where a part of the consideration of the usurious bond was a pre-existing valid debt. Banle of Washington \. Arthur et als. . 3 Grat. 173; 16. Equity will not entertain a bill to repeal a patent after ten years. Opodwin V. McCluer. 3 Grat. 291. 17. A party haying obtained a patent for land with knowledge of a prior equitable title in another and having brought a writ of right for the, land. A court of equity will award an injunction to stay proceedings for a rea-' sonable time to afford the tenant an opportunity to get in the legal title, outstanding in a third person. Ibid. 18. A court of equity will Set aside a patent obtained with notice of a prior (sntry, Ma^anY. Wardens. 3 Grat. 315. 19. A court of equity will not entertain a suit by a trustee or cestui gue trust against purchasers, of the trust property claiming, adversely, the»e being no obstacle in the way of proceeding at law. Sheppa/rds v. Ihirpin. •3 Grat. 373. 20. Trustees under an act of assembly, sell and. convey land, reserving a ground. rent to the proprietor when he shall be ascertained, ^he, deed not having reserved any right of re-entry or distress and containing no cove- nant by the purchaser to pay the rents, and the proprietor not being a party to the deed, the party claiming under the proprietor, is entitled from the difficulty of proceeding at law, to come into equity to recover the rents. MuUadayy.Machir'sAdm'ri 4 Grat.- 1. i 21. A. and B. brothers own adjoining tracts of land and marfc'a dividing line, which intentionally gives A. a part o.f B.'s land. They hold and sell 132 EQUITABLE JURISDICTION AND RELIEF. by this line and Av and his vendees- improve this land with the knowledge of B. and' his'vendees. The legal title to B.'s land being outstanding, his vendee obtains a conveyance of the legal title which embraces the land given to A. and recovers it from A. in ejectment. , Equity will relieve A. Stafford V. Garter et als. 4 Grat. 63. 22. A devise is made of an undivided moiety of land to one B. who sells tp P. There being an after born child, and the widow's dower being unequally assigned in, other lands and suit brought for the child's portion aiUd to have the widow's do^ey. re-assigned, purchaser may enjoin the C0I7 lection of the purchase money until the extent of the incumbrances are ascertained. Price v. Browning. 4 Grat. 68. 23. An injunction to a/judgment wiU not be allowed, where there has been neglect in making defence ait law. Griffith v. Thompson. 4. Grat. 147. , > 24. A court of equity will not try a question of title to, or boundary of land. Gmringtonet als v. Otis et als. 4t Grat. 235. 25. A tenant for life' of slaves, sells some of them — one to an unknown puBchaser. Upon a bill in equity, by the remainderman against the oura- trix of the tenant for life and the purchaser of one of the slaves, seeking to recover the slaves or the value of those sold and a discovery as to the un- known purchaser, a court of equity will take jurisdiction and will decree the slaves or their value, when sold, to the parties entitled, at their election; all the parties being before the court. Cross' curatxj^ v. Cros^ legatee. 4 Grat. 257. 26. A surety having executed his bond to a co-surety, who assigns it, and is insolvent; after judgment against- the surety he is entitled to hove it for contribution in preference to the assignee. Wdyland v. I'acker et als. 4 Grat. 267. 27. A third' endorser having endorsed a note on the faith of the solvency of a prior endorser, and on the renewal of the note, the order of the en- dorsements having been changed without his consent, equity will relieve him as against the endorser Who should have preceded him. Slagle v. By^fs Ad:nf,'rs, 4, Grat. 274. 28. In an aetjon by a trustee on an indemnifying bond, the defence is fcaud in the deed, but there is a verdict and judgment for the plaintiff. The defendant then comes into equity on the ground of after discovered evidence, establishing the fraud as to some of the debts secured,, but not questioning the hona fides of others, and asks for an injunction, a new trial and general relief. The court will not grant the new trial, but return the cause and allow the plaintiff to impeach tho deed notwithstanding the unsuccessful effort at law. BiUups y.. Sears etals^ 5 Grat. 31. EQUITABLE JURISDICTION AND RELIEF. 133 29. The cause 'being properly in the court of Chancery, the plaintiff is entitled to have an aooount of the trust aabjeot and to have it properly dis- posed of among the parties interested in it, according to 121611? respective rights. Ibid. 30. All persons secured by a deed of trust and named in it are necessary parties to a suit attacking the deed as fraudulent as to some of the eestui's que trust, an)! seeking a distribution of the trust fund. Ibid. 31. Equity has jurisdiction toeinjoin the removalo'f slaves from the State by parties in possession, at the suit of a, party claiming them as next of kin, where there is no administrator; and the court will proceed to decide thfe rights t)f the parties, though the defendant appears and denies that he in- tends to remove the slaves, and olgects to the jurisdiction. Robinson's ^^ors V. Da7/, 5 (Grat. 55. 32. The first plaintiff having but a life estate and dying before the cause is decided, the remainderman may file a bill in the same court to prevent the removal of the slaves and to recover them. Ibid. 33. If the cause is ready as to the substantial parties at the regular term, it may be decided at a succeeding intermediate term, though it waS not leady at the regular term, as to mere formtil parties, who consent to the hearing. Ibid. 34. A court of equity will not interfere to give relief to a purchaser or to his sureties under a decree of a court, having jurisdiction of the subject, for errors in the decree or in the proceedings in the cause, where the report of the commissioner has been confirmed. Worsham v. Hardoway's Adfn'r, 5 Grat. 60. 35. A court of equity will set aside a fraudulent sale of personal property by a debtor, at the suit of a judgment creditor and direct the .purchaser to deliver it to a commissioner to sell it. And if the purchaser fail to deliver it to the commissioner, the court will direct an account of its value and subject the purchaser for the value so ascertained. McNew v. Smith, 5 Grat. 84. 36. Upon setting aside a conveyance of real estate as fraudulent, at the suit of a judgment creditor, the court can decree the sale of only a moiety of the lands to satisfy the judgment. Ibid. 37. If a debtor conveys lands fraudulently!, and retains other lands, on setting aside the conveyance, at the suit of a judgment creditor, there will be a decree for the sale of only a moiety of the whole, embracing in said ihoiety the land retained by th6 debtor. Ibid. 38. In an action at law on a promise founded on a gaming consideration, if the defendant is surprised at the trial and there is a verdict and judgtaent 134 EQUITABLE JURISDICTION AND BELIEF. against him, he may come into Equity for relief, though he made no effort to^ obtain a new trial in the common law court. White v. Washington's Ex'w, 5 Grat. 645. 39. Qticere: If such defendant may not come into equity for a discovery, and if the discovery is made, whether he may not have relief, though there was no surprise on the trial at law. Ibid. 40. A court of equity has no rigJit to decree a sale of land for the pay- ment of a debt, unless the creditor asking the sale shall shew that the land is legally chargeable in equity for such payment ; and even then, until the amount of the debt is ascertained. Smith et ah. v. Flint et als., 6 Ctrat. 40. 41. Where a bill to enjoin the sale of land states facts which, if true, shew the land should not be sold, and is taketi for- confessed, it is error to decree a sale. Ibid. ' 42. Upon a motion to dissolve an injunction, before answer of the defen- dant, all the allegatioris thereof must be taken as true. Peatross v. Mc- Laughlin, 6 Grat. 64. 43. A judgment debtor having obtained his discharge as a bankrupt, subsequent to the judgment against him, may enjoin the suing out or levy of any execution on said judgment. Ibid. 44. A court of equity will enjoin a judgment on the ground of mistake of the jury, ascertained by after discovered evidence : but the subject of the action being accounts, the court will not direct a new trial at law, but will refer the accounts to a commissioner and will itself give the proper relief. Rust el als. v. Ware, 6 Grat. 50. 45. A decree is a lien on the debtor's land and, the creditor may come into equity to subject the land in the hands of a donee of the debtor, though the decree has never been revived against the administrator of the debtor and no execution has ever been issued upon it. Bwbridge v. Higgin's ^(iroV, 6 Grat. 119. 4.6. Where conveyances of a distributive interest in real and personal es- tate and transfers of bonds, have l)een made in anticipation of a judgment in an action ex delicto, the plaintiff in the judgment, after the debtor has taken the insolvent debtors oath may come into equity to set aside these conveyances and transfers and have the subjects applied to the satisfaction of his judgmetit. Greer ■v. Wright, & Grat. 154. 47. The obligors in the bonds should be parties and the decree should be against each of them for the amount he owes on the bonds, if the same is still liable on the plaintiffs judgment. Ibid. 48. If the transferree has received any part of the bonds, or if he, by his EQUITABLE JURISDICTION AND RELIEF. 135 improper acts or negligence has made himself chargeable therewith, he may be decreed against fo* the amount. Ihid. 49. The amount yet due, from the obligors in the bonds, is first to be ap- plied to the satisfaction of the judgment. IHA. 50. It is an error to make a joint and personal decree, in the first in- stance against the transferrer and transfferree of the bonds, for the amount thereof, tbid. 51. If the judgment is not satisfied froni theijohds, the distributive' inte- rest in the personal estate should be subjected and then the interest in the land. Ihid. 52. It ip error to direct the .transferrer and transferree to surrender the bonds to the sheriff. The decree should be against the obligors. Ibid. 53. The ■written agreement between the maker and p.ayee of a note in relation to the contract in execution of whioh the note was made, having been lost at the time the judgment was recovered on the note by the holder ihereof, and without which agreement the maker of the note could not make Ms defence at law, of fraud in the procurement of the note, that is a ground for the jurisdiction of a court of equity, to enjoin the judgment. Yather v. Zane, 6 Grat; 246. 54.^ partner in a firm sells out to a third person and the new firm un- dertakes to pay the debts of the old firm. The retired partner becomes in- debted to the new firm, and executes his bond for the amount of his indebt- edness with sureties and this is assigned for value. The new firm fail, not having paid the debts of the old firm and the retired partnei; pays them. He is entitled to set off the debts so paid against his bond in the hands of' the assignee, jffitpjj v. Bkpj?, 6 Grat. 310. 55. Judgment on a forthcoming bond may be enjoined at the suit of the surety therein on the ground that he has an action pending against the plaintiff in the judgment, for a larger amount and that he is insolvent. M',(lhllan\. Einnard, 6 Grat. 352. ■ 56. Testator subjects his land to the payment of his debts, a bill is filed by a creditor against the executor to subject the land, to which the devisees are not parties and there is a decree, and a sale and conveyance which is confirmed. The decree not binding the devisees, they recover the land. The purchaser having bought in good faith, is entitled to be substituted to the rights of the creditor and to charge the land to the amount of the debt paid by him. Hudgin v. Sudgin's Hx'or et ah., 6 Grat. 320. 57. A court of equity has powet to sdl infants lands, except where it is expressly prohibited by the testator. TaUey et.als. v. Starke's Adm'x et als., 6-Grat. 339. , , ■ - ' -- '-■■■' 136 EQUITABLE JURISDICTION AND RELIEF. 58. Whatever the form of a .hill ma^ he, if it states a case for eqnitahle relief and contains a prayer for general relief, relief will be given according to the equity stated in the bill, if sustained by the proofs. Anderson et aU. V. Be Soer, 6 Grat. 363. Same v. GalUgo'a Adm'r, id. 59. The general rule is, that whenever a party comes into a court for dis- covery, the court will retain the cause and give the proper relief founded on the discovery— unless where the discovery is sought to be used in a pending action at law. lyons v. Miller, 6 Grat. 427. 60. A tender of money in payment of a judgment, will not authorize a court of equity to stop an execution issued upon the judgment^ where there is neither allegation nor proof that the defendant in the execution kept the money on hand for the discharge of the judgment. Shumaker v. Nichols, 6 Grat. 592. . • 61. Qucere : If a court of equity will interfere to arrest an execution on a judgment at law, on the ground that the money had been tendered before the execution was issued. Ibid. 62. It is proper to come into equity to investigate a fraud in disb^ning slaves which are subject to a mortgage, under a fraudulent rent-charge in- stead of trying the question of fraud in an action at law. Senley'i Adm'r V. Perkins e< ah., 6 Grat. 615. 63. A bill having been filed by a mortgagee clainung slaves and the court having at the instance of the defendant and without any olgection to the jurisdiction, taken possession of the slaves and directed them to be sold and having since held and controlled the proceeds, it is too late for the defen- dant to make the objection to the jurisdiction. Ibid, 64. A court of equity will not lend its aid for the settlement and adjust- ment of the transactions of a partnership for gambliiig. Nor will it give relief to either partner against the other, founded on transactions arising* out of such a partnership, whether for' profits, losses, expenses, contribu- tions or teimbursement. Watson v. Fletcher, 7 Grat. 1. Fletcher v. Wat- son, id. 65. Though the pleadings do not show that the transactions sought to he settled and adjusted, arose out of a partnership for gambling, yet if this appears from the evidence taken before the commissioner who was directed to settle the accounts, it is proper for the court to re-commit the accounts, and direct an inquiry into the consideration on which the claims of the par- ties are founded. Ibid. 66. Where an administrator with the will annexed, resorts to equity to establish and enforce claims against his testator's estate, and to set aside conveyances mado by him, he places his whole trust find authority under the control of the court, and he will be restrained by injunction from pro- I EQUITABLE .JURISDICTION AND RELIEF. 137 eeedang to sell the real estate before there is an adjudication of the matters ip controversy between himself and the devisee and the legatee, Ibid. '67. Acase in which a vendor being entitled to relief on account of a fraudulent concealment of facts by the purchaser, under the circumstances compensation, and not a rescission of the contract, was the mode of relief administered. Armstead v. Hundley.^ 7 Grat. 52 KO 68. Equity vrill relieve against a compromise entered into by a party, in ignorance of important facts connected therewith. Boss' Ux^oi v. McLauch- lan'-s Ad/m'r et als., 7 Grat. 86. Same v. Haden's Adm'r, id. 69 . In such case the party haying paid more thaiL he was originally bound to pay, may recover back the excess, with interest from tte time of payment. Ihid. 70 A party who comes into a court of equity to eaforce an equitable claim, must do so, within a reasonable time ; and he must not delay until by his negligence there can no longer be a fair determination of the contro- versy, and his adversaiy is exposed to danger of injustice from the loss of evidence and information and means of recourse against others, occasioned by deaths, insolvencies and other circumstances. Smith et als. v. Thomp- smt's Adm'r et als., 7 Grat, 112. 71. The application of this equitable doctrine is for the sound discretion of the court and does'uot require the conviction of the court against the original justice of the claim or any olher specific ground of defence ; but its. belief that under the cirfeumstances of the case, it is too late to ascertain the merits of the controversy. Ibid. 72. A mistake in respect to the title of land is no ground for relief to a purchaser, where he purchased the land withottt agreement' express or implied, for a conveyance with warranty of title. Sutton v. Suitotl,7 Grat. 234. 73. A court of equity in Virginia may subject heirs living'here upon tke covenants of the ancestor to the exteiit of the value Of land descended to them in another state. Dickinsons. Hoomes' adm'r et afe. 8 GSat. 353. 74« Under the circumstances of the case, the heirs held bound to account for only so much of the lands out of the state, as they have actually gotten ormaygef possession of, with the rents and profits thereof, after deducting the cost ^d expense of recovering the lands. Ibid. > ' ^ ' ' ' 75. A party coming into equity to enjoin a sale under a usbrious deed of trust, though he does not ask a discovery, is only entitled to relief, to the extent of the usurious premium. Bell et als v. Calhoun. 8 Grat. ^2. 76. A deed of trust to secure creditors requires them to signify thdr acceptance of it, by signing it within thirty days and tbi release the debtor. 138 EQUITABLE JURISDICTION AND RELIEF. The creditors being dissatisfied with its provisions, it is agreed between tliem and the debtor that they Vill not sign it ; but two of them, wbo had entered into this agreement, sign the deed the day before the thirty days ex- pire, with the avowed purpose that it is for the benefit of all. Afterwards one of them comes into' equity io enforce the deed for the benefit of himself and the other, who signed, a court of equity will not entertain his biU. Phippin V. Durham et als, 8 Grat. 457, 77. A principal executes a bond, binding'his heirs, to his security as endor- ser, with condition that he will, when required by the Bank or the surety pay off the notes and so indemnify and hold the security harmless and he dies leaving the notes not yet due and they are protested and afterwards paid by his administrafor. 'The suijety being entitled to resort to both the real and personal estate and the notes having been paid out of the latter, the simple contract creditors are entitled to have the assets marshalled to the extent of the amount of the notes so paid, if they do not exceed the penalty of the bond. OraUe et als. V. Iteem et als. 8 Grat, 496. 78. Upon a bill by simple contract creditors to marshal assets, it is com- petent for the court, in its discretion to decree a sale of the real estate in the hands of the heirs, some of whom are infants, for the payment of the debts ; but it is premature to order a sale before adjudicating the claims of the creditors and so ascertaining the amount of the indebtedness chargeable upon the lands of the decedent, Ihii. 79. Though such a decree for the sale of land has been prematurely made, yet if the sale is made and confirmed, the court will not set aside the sale on the petition of the purchasers, if, upon the hearing it appears that the sale is beneficial to the infBlits, IhiA. 80. The court having made a decree for a sale of real estate, on the peti- tion of the adult heirs, and wjth the assent of the creditors, it is erroneous to proceed to sequestrate the rents of the other real estate, in the hands of the heirs, for the payment of the debts, before deciding upon the claim of the purchasers to have the sale set aside. Ibid. 81. A judgment creditor comes into equity to set aside a deed of trust as uaurioHs. He fails to set aside the deed, but t^ie court having possession of the cause, will decree the sale of th? land, and the application of the pro- ceeds a^6ording to the priorities of the parties. Martin v. Eall et oils. ^ 9 Grat. 8. - 82. An injunction to a judgment at law, dissolved, as iraprovidently granted, withdut answer, though the bill charges that the judgment was jeeorded without appearance or defence for money which the plaintiff in the judgment alleged, he had paid as surety; though he had not in- fact paid one cent of the money, but the same had been in fact paid by another sUrety, against whom there was a joint judgment with the plaintiff at law; EQUITABLE JURISDICTION AND RELEIP. 139 and that of this the defendant at law and the plaintiff in the bill for injunc- tion had no knowledge until after the judgment and therefore did not make his defence at law. Slack v. Wood. 9 Grait. 40. ,83. In an injunction to a judgment at law against the assignor and as- signee, the plaintiff not being entitled to enjoin against the assignee, but entitled to have payment against the assignor, is not entitled to a decree against him for payment, but upon the terms of releasing him from his liability as assignor. Drake v. Lyons. ,9. Grat. 54. ^ 84. Upon a scire facias against bail, he surrenders his principal and gives notice thereof to the attorney of the plaintiff, the plaintiff not living in the county, but there is an ofBce judgment a,gainst the bail, and he not defending, it, it is confirmed. Equity will not relieve. , Allen Walton & Co., v. Ham- mon. 9 Grat, 255. 85. In an action at law, the defendant is prevented by unavoidable acci- dent, from making defence, and setting up offsets which he held against the plaintiff, these offsets being no way connected with the debt sued upon, he has, however a plain remedy at, law, or in equity for the recovery of his claims. BTe is not entitled to enjoin the judgment and set Up his offsets against it, but must pursue his remedy for their recovery. Hudson ». Kline. 9, Grat. 379. '' ' , 86. A bill for speoiflo e±ecution of a contract between adjoining Owners, to keep open a lane through their lands, filed nearly twenty years after their contract, against a purbhaser under one of the parties, without actual notice, and even doubtful constructive notice, the lane having been closed for a number of years, and the plaintiff having stood by, without setting up any claim to the lane when the land was twice sold, and having little or no in- terest in it, is dismissed. McGue v. Balston. 9 Grat. 430, 87. A creditor at large may maintain a Suit in equity to set aside a frau- dulent deed conveying real estate, made by his debtor, both the debtor and his grantee living' and being out of the Commonwealth- Feay v. MorrisSon's^ e^ors. 10 Grat. 149. 88. In a controversy between parties claiming a judgment lien and others claiming under a deed of trust, it being uncertain what part of the lands of the debtoir are included in the deed of trust, it is errer to decree a sale of the lands, until the priorities of the parties are adjusted, and it is ascertained what portions of the land are included in the depd. Buchanan v. Glarh, et ais. 10 Grat. 164. , 89. There being two judgments having ;preference of the deed, the pro- ceeds of thp other moity of the land, should be applied to satisfy the second judgment. Ihid. ' 90. Though lands are conveyed in trust to secure debts, a judgment eredi- 140 EQUITABLE JURISDICTION AND RELIEF. tor having priority to the deed is entitled to subject but a moiety of the debtor's land to the satisfaction of his judgment, except in the case of a mere equity of redemption. Ihid. 91. The oourl having decreed the sale of the whole land^ and it having been purchased by a party claiming under the deed of trust ; and the final decree being in bis favor, and a conveyance to him being directed ; upon appeal by the party claiming under the judgment the decree is reversed. The claim of the purchaser must fall with the reversal of the decree ; the purchaser not being a stranger to the controversy, purchasing at a judicial sal«, but the party chiefly benefitted by the decree complained of. Ihid. 92. The next of kin of an intestate, being his mother and his widoWj and the husband of the mother being in possession of slaves which he had, many years before, conveyed to the intestate, claiming to hold them for the life of himself an^ his wife; and the administrator having paid all the debts of his intestate, and declining' to sue for the slaves, the widow may sue in equity for distribution of the slaves. Soberts v. Kiam, 10 Grat. 184. 93. B., for himself and others sells part of a tract of land to J., who ex- ecutes to B. his bonds for the purchase money. The other pairties refuse to confirm the contract, but sell their whole interest in the tract to J. B. having recovered judgments upon the bonds, J. is entitled to have thejudg- ments enjoined and to be relieved to the extent of the injury he has sus- tained by the failure of B. to procure the other parties to execute the con- tract. Jei/nes et als. v. Brock, 10 Grat. 211. 94. Process in a foreign attachment is served upon a garnishee having property of the absent debtor in his hands; and afterwards, other credi- tors sue out attachments at law against the same garnishee, as an abscond- ing debtor, which are served upon the same garnishee ; and before the for- eign attachment is ready for a hearing, they obtain judgments, and an or- der for the sale of the property in the hands of the garnishee. The plain- tiff in the foreign attachment may amend his biU and enjoin the sale. Moore et als. v. Solt, 10 Grat. 284. 95. A party claiming that he has not been credited for all the money pMd by him to the sheriff, on an execution, may have any injustice done to him in that respect, corrected by the court from which the execution issued. And it is not a case for an injunction and relief in equity. Mon-ison v. Speer, 10 Grat. 228. 96. Though the owner of lands has the legal title and might maintain trespass for an injury done to it, by raising iron ore upon it, yet equity has jurisdiction to enjoin another party who claims the land from taking the ore from it. Anderson v. Harvey's heirs, 10 Grat. 386. 97. Testatrix devises and bequeaths a small farm, slaves, &o., to a trus- EQUITABLE JURISDICTION AND KBHEF. 141 tee for the life of H., remainder to the children of K., living at her death. The trustee is directed so to conduct the farm, &o., as to be most advanta^ geous to H. and her children dming her, life. There are five children and the husband of H. is dead. H, becomes indebted, judgments'are re- covered against her and she is discharged as an insolvent debtor ; and then her creditors file a biU to subject her interest in the, property, to the pay^ mejit of their debts. No surplus of the annual productSj after the eup-- port. of H, and her family is alleged or shown to exist. The bill is prop- edy diemissed. Nickell and Miller v. Handley ei als., 10 Grat. 336. 98. If any such surplus product, exist now or hereafter, the plaintiffs may hereafter file a bill to subject it, notwithstanding the dismissal of the first |)illi IWd. 99. When there are several purchasers of land subject to a judgment lien, some of them may file a bill to question the lien, or if it be valid, ask- ing that the purchasers may be subjected to payiti And though they ask for a ratable contribution, this will not prevent the' courts subjecting the land last sold to satisfy the creditor. Micliaux' adm't v. Broion et als., 10 Grat. 612. ■ 'jlOO. Qucere : whether a party may set up in a, second suit pretensions inconsistent with the allegations of his bill,and his pretensions in his first &mli. ...Efazefs admWY. Bevillet als., ,11 Qixs.t.^. ,. ^ , MT. W. administrator of G. assigns the bonds of T. to the, executors of H. in discharge of a debt due from G. to H. The executoi-s sue T. and re- cover judgment and he enjoins it on the ground that G. owed him-fora leg- acy left him by R. of whom G. was the executor ; and the injunction . is . ]perptuated. The executors, of H. are entitled to the, rights of, T. against G.'s estate and are not confined to their remedy on the assignment of W. Braxton's adm'r, dsc. t. Harrison's ex' ors. 11 Grat. 30. 102, In tljjs ifljunction suit the executors of Hi and W.j and the adminis- trator de bonis rian of G. are parties and the decree perpetuating the injuno- tipn is by consent ; and they also consent to a decree directing an account of G.'s estate, by, hie adminisjirator. Held,: 1st. That it-is a case in which there may be a decree between co-defen- daats, in &vor of the executors of H. against G.'s estate. ■2nd. That to ascertain whether tbere were assets of G's estate to pay the debt, the account might be directed. ■ 3rd. If the decree against G.'s estate was doubtful, the consent of the representatives -of W. and G. clearly authorized it. Ihid. 103. Tfen years after the decree, the second administrator de bonis non of G. entered into a contract, under seal, to pay the debt, out of tho assets, when received ; and the executors of H. agreed to wait one yeat, to release 142 EQUITABLE JURISDICTION AND BELIEF. tlifeir coats in the suit and dismiss it as to them : but the. admiBistrator was not to be bound personally, and the executors were at liberty, if the money ■was not paid in the year, to cancel the agreement and proceed to enforce any of theb existing remedies. The administrator did not collect assets within the year and the executors sued in equity upon tl)e agreement. Held: 1st. Though the right of the executor of H. to proceed against G.'g es- tate accrued when the injunction was perpetuated, yet the'pendencyof that suit carried on for their benefit, prevented the running of the statute of limitations against them. ' 2nd. Though it is generally true that an executor or administrator can- not create a new cause of action against the estate, yet he may make a val- id promise to pay a debt not barred by the statute of limitations, out of the assets of the estate, on which a suit may be maintained. 3rd. That there was a sufficient consideration to sustain (he agreement and a suit could be maintained on it by the, executors of H. against the ad- ministrator, for payment out of the assets. ; 4th. That it was proper to sue in equity to have an account of, or for marshalling, the assets ; and this especially as the agreement being under seal, it is doubtful whether an action could be maintained upon it. Ibid. 104. Money lent by .a bachelor uncle to his nephew, to secure which a deed of trust is exebuted,was held under the circumstances, to have been given and released by the uncle to the nephew, so that a court of equity would refuse to enforce the trust, at the suit of the executors of the uncle. FitzhugVs ex'ors v. Fitzhugh, 11 Grat. 210. 105. Courts of equity will ndt, in general, assume the exercise of a dis- cretionary power vested in a trustee,- nor interfere to control a trustee acting bonajide in the exercise of his discretion ; nor will a suit be entertained to compel a trustee to exercise his power. Cochran v. Paris ei ais., 11 Grat 343. 106. Testator gives his estate to his executors for the benefit of his son, atid if they should judge that it would be prudent to invest him with it, to turn it over to him. The executors having declared their judgment that the son may be entrusted with the estate, equity will compel them to turn it over to him. Ibid. 107. Real estate is donveyed in trust to Secure debts ; the grantor in the deed has only the equitable title, but is entitled to have the legal title. The trustee sells, without getting the legal title for about one fourth the value of the property, to the principal creditor under the deed. The grantor, ab- sent at the time, forwards the money to pay tlio debts secured to his agent at the place of sale, the letter is at the post office at and before the time of sale, but not delivered to the agent, though, in expectation of receiving it he had several times applied for it at the office. A court of- equity will set aside the sale. Eossei v. Fisher et als., 11 Grat. 492. EQUITY OF REDEMPTION— ERROR.:— ESCAPE. 143 108. A defendant in an execution files a bill to enjoin an execution on the ground that a previous execution, sued out on the same judgment had been levied on the property of another defendant in the execution sufioient to discharge it. In such a case the bill must be filed in the county in -which the judgment wais recovered, and the circuit court of another county has no jurisdiction of the case. Beckley v. Palmer ei al., 11 Grat. 625. 109. If in such a case, the plaintiff insists that the sheriff has misapplied the proceeds of the property levied on, or that a payment has been made to him, which has not been credited on the execution, if he had an opportunity to apply to the court of law, from which the execution issued, for redress, he has no right to come into a court of equity for relief. Ibid. 110. Courts of equity have jurisdiction in all cases, to compel the execu- tor to deliver a specific legacy. Nelson's Adm'r v. Cromwell. 11 Grat. 734. 111. A court of equity in Virginia may hold an adruinistrator, who qualified as administrator, in the State of' Mississippi to_^aocount for his ad- ministration in Virginia. Powell Y.atration ef als. 11 Gratt. 792, EQUITY OF REDEMPTION. A judgment is a lien upon an equity of redemptign in land and will be preferred to a subsequent purchaser of the equity of redemption, not having the legal title ; and the lien extends to the whole of the equity of redemp- tion. Mchaux^ Adm'r v. Brown et als. 10 Gratt. 612. ERROR. See Appeals. ESCAPE. 1. Under the act I Rev. Code of 1819, ch. 136, ? 3, an action of debt may be- maintained against a sheriff for either a wilful or negligent escape. Stone V. Nelson, 10 Gratt. 529. 2. In order to maintain the action, it is only necessary for the plaintiff to show the escape, which may be done by evidence aliunde the return on the execution. And to defeat the actioni the sheriff must show that the escape wa^ fortuitous and that fresh pursuit was made. Ibid- - 144 ESTIMATED HEIRS.— ESTOPPEL. 3. Upon proof of the escape, the jury are bound to presume aU that is necessary under the statute to be found in the verdict, unless the sheriff negative, by his proofs, all consent or neligence on his part, and also shows that he has used due means to retake the prisoner. Ibid. 4. Under the act 1 Rev. Code of 1819 chap. 134, g 48, p. 542, a motion may be maintained against a sheriff for an escape : 1st. Where the return on the execution states that the officer has taken the body of the debtor and has it ready to satisfy the execution and the plaintiff can shbw the escape aliunde. 2d. Where the return shows such a state of facts, as would entitle the plaintiff to a verdict in an action of debt for an escape. Ibid. 5. Upon such a motion, the court occupies the place of the jury as to the facts and is bound, upon a return of " executed" and proof of an escape, to presume that it was with the consent of the sheriff, unless he (the sheriff) proves that it was without his consent or negligence, and that he had used due means to retake the prisoner. Ibid. 6. The fact that the county court has not provided a jail, in which a debtor, taken in execution, may be confined, does not authorize the sheriff, who has taken a debtor in execution, to permit him to go at large. If no jail is provided by the county court,- it is the sheriff's duty to provide one to keep the debtor, whom he has taken in execution — ^in custody. Ibid. 7. A return by a sheriff that the county court had not provided a jail and that he had therefore permitted a debtor, taken in execution, to go at large, of itself, shows an escape and will sustain a motion against a sheriff. Ibid. ■ - ESTIMATED HEIRS. 1. A fiduciary, whose duty it is, to hire out slaves for the benefit of cesiui's que trust, will be held to account for interest on their estimated hires. Cross' euratrix v. Cross' legatees. 4th Gratt. 257. 2. Persons not holding slaves as fiduciaries, are not to account for inter- est on estimated hires of slaves. Ibid. ESTOPPEL. 1; H. sells his claim to a tract of land and warrants the title to the land, as it was in hia grantor, but disclaims warranting that the title is good. ESTOPPEL. 145 He is not eatopped by hia deed ftom setting up another adversary title to said land, purchased by hiw, against his vendee. Wynn v. Sarman's devisees, 5 Giat. 157. __ 2. A certificate of a clerk, endorsed on a deed, that it was exhibited in his office, acknowledged and admitted to record, is conclusive of the fact and is not open to contradiction. Carper el als. v. McDowell, 5 Grat. 212. 3. A defendant relies on an inquisition and judgment authorizing a dam, as the grounds of his defence ; he is estopped from denying the ownership of the land by the applicant for the mill. Calhoun v. Palmer, 8 Grat. 88. 4.' In an action upon a bond given by a deputy sheriff and bis sureties, in which they are all recited to be deputies ; those who are thus recited are estopped from denying the fat3t. Cox et als- v Thomas adm'x., 9 Grat. 312. 5. The bond reciting that the plaintiff was high sheriff and one of the defendants was deputy, the obligors are estopped from denying these facts. Bid. ' 6. A county court having laid the county levy and directed the sheriff to pay certain claims upon the county, out of it, and the sheriff having received the commissioner's books and proceeded to collect the levy, as far as it could be collected, and returned a list of insolvents. ¥pon motion by one of the creditors of the county, whose claim was directed to be paid out of the levy against the sheriff and his sureties, to recover the amount, it is not competent for the defendants to object that the county court was not legally constituted to be authorized to lay the levy, when it was done ; nor can they object tha.t the commissioner's books were irregularly made out and not properly authenticated. Gooh,. sheriff et als. v. Hays, 9 Grat. 142. 7. The sureties of a deputy- in his bpnd to the high sheriff, for the faith* ful discharge of his duties, are estopped, from denying t^at their principal was deputy, unless the bond was invalid. OsoU v. Early et als., 10 Grat. 198. 8. Upon a motion by a high sheriff against a deputy and his sureties, they file a special plea and the plaintiff replies specially, and relies on the facts fltated in his replication and especially on the bond of the deputy and his sureties, as an estoppel. Though the replication has not the peculiau commencement and conclusion of a pleading by way of estoppel, a demur- rer to the replication should not be sustained. Ihid. 9. N. living in Virginia, brought two suits in South Carolina; and'B. being there, became bis security for costs. N. executed ^ to B. a bond with sureties living in Virginia to indemnify him. In an action by B. against N, and his sureties, the records of fee suits brought by N. in South Carolina were offered in evidence by B. and were. objected to, oh ,the ground that they showed that B. had not become the surety of N. at the date of the bond of N. and his sureties to him. Held : 'That the defendants not shovring that B. was the surety of J 146 EVICTION.— EVIDENCE. N. for costs in other cases, their bond must be held to refer to these suits; and they were estopped by their bond from denying that B. was' the surety of N. at the time of its execution. Cor.dle v. Burch, 10 Grat. 480. bvic;tion. In a suit, in -which the tenant is not a party, but the lessee is, a decree is made, directing the sheriff to rei^t out the demised premises. The premises are rented out, and the tenant yields possession. As the decree did not direct the sheriff to evict thp tenant, and there was no paramount title, under which the lessee might have been evicted, his surrender of the pos- session was not an eviction, so as to release him from the payment of the rent. Murray, Caldwell & Co. v. Pennington, 3 Grat. 91. EVIDENCE. 1. What is EViDENCB. ! 2. What is not evidence. 3. Othek principles. 1. What is evipence. 1. A bill in equity by a Bank, sworn to by its cashier, is competent evi- dence against the Bank, in a subsequent suit between the same parties. Northwestern Bank v. Nelson, 1 Gra!t. 108. 2. On the trial of a writ of right, preparatory to the proof of entry on the land by an agent, a power of attorney from demandants to the agent, duly authenticated aiid giving him authority over the land, is proper evi- dence. Taylor's devisees v. Burnsides, 1 Grat. 165. 3. An office copy of a vrill admitted to probat by the proper court, upon improper proof, oannpt be objected to as evidence, on that ground. Ibid. 4. Calls and descriptions of a survey, made by the same surveyor, about the same time, with the survey of the land in dispute, may be given in evidence. Overton's heirs v. Davidson, 1 Grat. 211. 5. , Declarations by a surveyor or chain-carrier, or other persons present at a survey, of the acts done by or under the authority of the surveyor, in making the survey, if not made, post litem motam, and the person who made them is dead, are admissible in evidence. Ibid. 6, Declaration in debt on an indemnifying bond, alleges that the defend- ants bound themselves to pay to any person, claiming title to the property, all damages, &c. The bond offered is in a penalty and with a condition. Held : No variance and admissible evidence. Kevan v. Branch, 1 Grat. 274. BVIDENGE. 147 7. A copy of an account from the partnersMp books, being filed with the answer of the executor of one of the partners, and being treated as evi- dence on the hearing in the court below, will be so considered in the Court of Appeals. Kyle's ex'or v. Kyle, 1 Grat. 526. 8. On the question whether goods were sold by the plaintiffs to the de- fendants,- or a third person, the original entries on the plaintiffs' books, charging them to the defendant, are admissible evidence for the plaintiffs. I)owner & Co. v. Morrison, 2 Grat. 250. '9. A letter of plaintiffs to defendants, filed by defendants and read by them on a former trial, is competent evidence for plaintiffs. Ibid. 10. The affidavit of a notary, made under the Act 28th January, 1829 ; Sup. Rev. Code 25'9, and the S^rd February, 1834, Sessions Acts 75, is Only evidence of the truth of the facts stated in the protest. Walker v- Furner, 2 Grat. 534. 11. A deed is acknowledged before justices, by the* grantor, who retains possession of it. It depends upon tjie intention of the grantor at the time, whether the acknowledgment is a complete execution of the deed. SutcAi- son and wife v. Bust ei als., 2 Grat. 394. 12. In such a case the intention of, the grantor may be ascertained by evidence of his previously declared purpose, though nothing is said at the time of the acknowledgment to indicate his purpose. Ibid. 13. Parol testimony is admissable to shew that a scroll was put upon an appointment in writing, in the nature of a will, by the direction of a testa- trix, as a seal. Pollock and wife v. Olassel, 2 Grat. 439. , 14. On a trial for murder; the dying declarations of the deceased, if made in expectation of death, are competent evidence against the prisoner. Hill's case. 2 Grat. 594. ' 15. Qucere: "Whether upon a trial for murder, the declarations of the de- ceased, made immediately after the vound was inflicted, and before he had time to fabricate a story, and when the lis, mota did not exist, m^y not, be given in. evidence as part of the res gestae. Ibid. ^ 16. The "ehdorsement of the clerk, on the .deed, of the time it was left for recordation, is prima facie, but not ooaolusive evidence of the time. Morsley et als. \. Gan-th et als., 2 Ghrat. 471. 17. A, decree in personam against an absent debtor, merges the original cause of action, so far as to enable the plaintiff to rely thereon, in^ any sub- sequent proceeding to 'enforce it, as prima facie evidence of the demand it establisiies, and to repel the statute of limitations; except so far as the statute applies to judgments and decrees. Bootes' ex^x v. Tompkitis' trustees, 3 Grat. 98. 148 EVIDENCE. 18. The receipt of a constable for a debt, claim or exeeution, is evi(fence against the constable and hie sureties, that the debt, &c., has come to his hands, though such receipt does not purport to be given in his official character. M'Neale et aU. v. Governor for Clan-Tee, Z Grat. 299. 19. If such receipt purports on its face to have been given by the con- stable in his official character, and six months have elapsed from the date thereof before the commenoement of the action, such a receipt is prima .facie evidence of the receipt of the money by the constable, when the debt, claim or execution was placed in his hands to be warranted for and was such as might have been recovered by warrant. Ihid. 20. If such receipt of a constable in his official character is for a debt or other, claim than an execution, it will be intended, unless the contrary ap- pears, that it was placed in the hands of the constable to be warranted for, and that it might have been recovered by warrant ; but the contrary is the intendment in the case of an execution. Ibid. 21. If th« receipt of the constable does not shew who_ was the plaintiff in the execution, or in the case of any other debt, who was the. creditor entitled to maintain an action in his oym. name, it should be intended that the person to whom the receipt was given was the plaintiflf in the execu- tion, or the creditor who could maintain the_ action in his own name, unless the contrary is shewn by proper evidence. Ihid. 22. An answer not denying a charge in a bill, and a copy of a decree in a previous case, being filed as proof of the charge and not objected to, the decree is prima fade evidence. Roberts v. Colvin, 3 Grat. 358. 23. A prisoner is charged with breaking open a house in the day-time and stealing therefrom coins of a particular denomination. Upon this indictment, proof that the prisoner had in his possession a coin of a differ- ent denomination from those described, which was in the house when it was broken, is admissible evidence to bring home the breaking of the house to the |)risoner. Hall's case. 24. Upon an indictmeat for selling spirituous liquors without a license, the commonwealth may prove any offence against the act by the defendant, within the prescribed time. Loftus.' case, 3 Grat. 631. 25. Interest is paid on a bond in advance for three years, and this is stated in the bond; but paid in land at a price fixed in reference to the annual interest for three years, is not usurious and the plaintiff may prove the facts on the trial. Porterfield v. Coiner, 4 Grat. 55. 26. To repel the usurious intent, the plaintiff may shew the value of the hknd at the time of the contract. Ibid/ 27. The previous statements of a witness may be given in evidence, whether written or oral, to inpeach his credibility ; but not as evidence of any fact touching the issue to be tried. Charlton v. Vhis, 4 Grat. 58. -;i EVIDENCE. 149 28. A deed acknowledged and proved before a county court, •which con- veys land in another cou'nty, and thereupon ordered to be oertifled to the eoart of that county, is on that certificate recorded in the general court ; a copy of the deed from the clerk's office of that court, is competent evi- dence. Fbilard's heirs v. Lively, 4 Grat. 73. 29. Copies of surveys of waste and unappropriated land, and of patents', from the register's office, are competent evidence in the place of the originals. IhO. • - ►■ 30. Upon a question of the identity of the patentee with the ancestor of the demandants in a writ of right, the survey on which the patent issued, and the assignments thereon and the surveys and patents for land in th^ neighborhood of the land in controversy, may be competent evidence for the tenant to disprove the identity. Ibid. 31. On a warranty of soundness of an animal, it is for the jury to say, what is embraced therein; and on that question the qualities and uses for which the animal is purchased and sold, may be referred to, as explaining what was intended to be included in the warranty. Thornton v. Tompkins et als., 4 Grat. 121. 32. A conveyance is made of land by a sheriff, when bylaw he had authority to sell, which recites facts, that if true, would show that the sale was legal; the purchaser hold for many years, without claim by those whose title the slieriff sold : the legal presumption is that the sheriff had authority to sell, and as against strangers setting up an adverse title, the recital in the deed as to ihe sheriff's authority to sell are to be taken as true. Mobinett v. Preston's heirs, 4 Grat. 141. 3,3. The account of sales rendered by a consignee to his consignor, ftough objected to when presented, is prima facie: evidence- of its own cor- rectness. Meiions \. Nottleiohms, 4: Qiai. 16S. 34. An attempt of a prisoner to escape from custody, or his offer of a bribe to the officer, to permit him to escape, may be giyen in evidence against him, though, the attempt and offer were made, when he was in custody, on a different charge from that for which he was tried ; both charges being founded on the same fact. Dean's case, 4 Grat. 541. 35. To authorize the admission of an old deed in evidence, without proof of its execution, there must be proof of possession according to and under the deed; and prooF of a possession commencing fifteen years after the date of the deed and not until a conveyance by the grantee in the old deed is insufficient. Shanks et als. v. Lancaster, 5 Grat. 110. 36. The party claiming under the old deed, offering parol proof of pos- session the other party is entitled to offer such proof to rebut; that offered to prove iossessibn. Ihii. 150 EVIDENCE. 37. The record of a suit by heirs for division of the lands of their ancestor, shews that there had been a decree, appointing commissioners to lay off and assign to the heirs respectively their shares pif land ; that the commissioners bad executed the decree, and made a report, accompanied with a plat of the division, which report and plat were ordered, to be recorded. This is admissible evidence that partition had been made, by the final decree of the court among said heirs. Ihid. 38. A tenant in ejectment, claiming under a junior patent, founded on an inclusive survey, may, in order to show possession under color of title prior to his patent, introduce in evidence, the entries for the different tracts, embraced in the inclusive survey, the order of court, authorizing the survey and the survey itself. Ihid. 39. A decree of partition being a necessary link in a chain of title, if the deeree sufficiently designates the land referred to in it, it is competent evi- dence, without the production of the whole record. Wynn v. Rarman's devisees, 5 Cl-rat. 157. 40. A copy of a will, which has been admitted to prpbat, certified by the clerk, is competent testimony in place of the original. Ibid. 41. A copy of a decree, certified by ^le clerk is competent evidence. Ihid. 42. Plaintiff in order to show error in a settlement with the defendant, may prove that the account by which the settlement was made, vras erro- neously copied from his books, and for this purpose may shew that the ,items in the ledger correspond with the original entries and that there is a credit in the account, which is not in the books. Hampion, Smith S Co. V. Michael, 6 Grat. 151. 43. It is no objection to the competency of a witness that he heard the other witnesses exapiined, though he had been ordered to leave the room during their examination. Hopper, Sleirs,and Lemmon's case, 6 Grat 684. 44. A trust deed , stating the amount of the different debts secured, is evidence, but not conclusive as to the amount of a debt, even against the grantor or his administrator. Griffin's ex'or et als. v. Macaulaifs adm'r„ 7 Grat. 476. 45. Under the circumstances the books of the grantor in the deed of trust were proper evidence of the amount of the debts due to the creditors secured by the deed. Ibid. 46. Under the circumstances the answer of the assignor of a debt hM to be competent evidence against his volunteer assignee, in controversy be- ' tween the assignee and third persons. Ibid. , , * 47- The organization of a corporation may be proved by its records atid EVIDENCE. 151 parol- proof, without the produation of its list of subscribers. Crump v. llhited State? Mining Company, 7 Grat. 352. ■48' Upon a writ of unlawful detainer, defendant sets up title in himself. Plaintiff may prove that defendant entered on the premises under a parol lease from himself, though the lease was proved to continue more than a year. Adams v. Martin, 8 Grat. 107". 49. In a case of prohat, a witness unable to attend the court, is examined as to the handwriiang of a testamentary paper Which had been shewn to him by the propounder of the will, but which was not before him when he gave his deposition. The testimony is admissible, its weight depending upoii the certainty of the proof that the paper propounded for probat, is the paper that was shewn to the witness. Nuckols adm'r v.* Jones, 8 Grat. 267. 50. Upon a motion by a prisoner to be discharged, for the failure to try hini within three terms, the" commonwealth relies pn the fact that he was tried and convicted and the verdict set aside for a variance ; the record of the court is competent, and the only competent evidence of these facts, .idcoci's cose, '8 Grat. 661. " 51t Where the question is, whether a promissory note is signed as princi- pal or agent, and that is doubtful on is face, parol evidence is admissible to prove the note was intended to be signed as principal. Early v. Wil- kinson db Hunt, 9 Grat. 68. 52. Proof of the adn^issions of the maker of the note, as to another note executed in the same way, except as to brackets around the second name on the note, is admissible to confirm the evidence arising from the face of the note. Ibid. .53. Ap original deed having been authenticated for record, in the manner prescribed by law at the time of its execution, is admissible as evidence, without further proof of its execution, though it has not been duly recorded. Easier' s lessee v. King, 9 Grat. 115. 54. In a suit for partition, both parties derive title under a deed recorded in the county of H., but not in the county where the land lies ; the recitals in the subsequent conveyances direct attention to that deed. These recitals are evidence against the parties and privies in blood, in estate and in law, and an office copy of the said deed from the place described as the place of record, is competent evidence in controversies with them. Hannon, et als. y. Hannah, 9 Qiat. 146. tj^55. K. assigns the bond of G. to K., to enable K. to purchase goods on ^e credit of the 'asSignmient, and K. purchases goods of H. on tlie credit thereof. In an action by H. against K. on the assignment, the statements of K. to H. in rfllation to said assignment, pending the negotiation for the goods and the transfer of the bond of G. are competent evidencje against R. 152 EVIDENCE. But the statements of K., made subsequently, are not. fiqpiMis, Brother & Co. V. Richardson, 9 Grat. 485. 56. Declaration made by R., during the consultations and conversations in relation to the assignment of the bond of G. to K., thou^ made a day" or two before the bond was assigned, are competent evidence for R. as a part of the res gestae, to shew that he did not make the assignment under euch circumstances or with such intent, as would render him liable upon the assignment to the holder of the bond. Ibid. 57. In an action upon a promissory note, purporting to be made in the name of a partnership, unless the defendants file an affidavit under the statute, they will not be allowed to prove that the partnership was dissolved by the death of one of the partners before the note was made. Phaup roborating the previous evidence of agency, the record of a suit instituted by the defendant's intestate, which was settled by ths broth«', aad the suit thereupoQ dismissed, to which objection was ia«ver made by the plaintiff's intestate; Held: The record is competent evidence, for the purpose for which it is offered. Perkins' adm'r v. Hawkins' adm'r, 9 Grat. 649. 39, The bond sued upon was executed in 181S; and the intestate of the plaintiff having died in 1816, his brother qualified as one cS his admims- trators. In order to sustain the presumption of payment from lapse of time and other circumstances, the defendant offered in evidence a deed by which he conveyed to the brother, whilst he acted as administrator, a lot of land for the price of $3205. Held: That it wae competent evidence. IbH. 60. Proof being offered, tending to prove an agency, a paper signed by such person, shewing he had settled the price of certain hogsheads of to- bacco with defendant's intestate, for plaintiff's intestate, ia competent evi- dence of sett-off. Tbid. €1. A paper consisting of figures, with a receipt attached to it, accompa- nied by evidence explaining what was moant by the figures, ie competent evidence. Ibid. 62. A record of another suit between the same parties, in which the same causes of action were in controversy, and the finding of the jury was against them, is competent evidence. Johnson's ex^x v. Jennings' adm'r, 10 Grat. 1.. 63. An endorsement on a bond, being equivocal in its character, all the oiroumstanoes attending the transaction, the ootemporaneous conduct and declarations of the parties, evidence of their purposes and motives-, may be EVIDENCE. 153 looked to, to ascertain what kind of instrument was within their contem- plation and design. SmUVs ex'or v. Spilkr, 10 Grat. 318. 64. If the deed of a sheriff conveying land is defective,' it is still competent evidence 'to show, with other evidence an actual entry with claim of title and continued hdlding thereunder, bo as to make out a title or right of entry by actual ' possession. - FUmnegan v. Grimrnet d als., 10 Orat. 421. 65. In ejectment, plaintiff claims under a deed from the commissioner of delinquent lands ; the record pf the proceedings, including the exhibits, in which the sale and conveyance of the land was directed, ia competent evi- dence, though there be irregularities in the proceedings, apparent on the face of the record. Smith et als. v. GJuxpman, 10 Grat. 445. 66. On a survey directed, in a cause, some of the lines are run, when one of the parties acts as ehainman. Upon a second survey, another chainman is emploj'dd and all but one of the lines are run again. The line not run the surveyor says he ascertains to be correct by other lines run ; and the line is submitted to the jury not as a line ruuj but as a protracted line. This is not error. Ihid. 67. Statements of a chsiinman, who is dead, as to th,e corner and line trees of a survey are properly admitted in evidence, but statements as to the locality of the land and the -streams the lines would cross, are not ad- missible evidence to fix the lo(pality of the survey. Ibid. *■'■■■ 68. The question being whether a survey was actually made, so as to entitle the party claiming under the patent issued upon it to reverse the courses called for ia ttie patent, it is competent for the other party to intro- d«ee:?the entry and purvey, in which- the courses are the same as in the patent, and five other large surveys, .bearing the same dWe and made by the same surveyor, to disprove the actual running of the survey. Ibid. 69. In a trial for murder, in order to contradict a witness^ it is competeni; tp, introduce in ^idenoe a deposition given by him, before the inquest, tfuken down at the time by the coroner and read to the witness and signed by him. ' Womneley's ease, 10 Gyat. 658. ! 70.. On a trial fojr felony, a confession of the prisoner raay be given in evidence, unless it appears that the confession was obtained from him by some inducement of a worldly or temporal character, in the nature of a threat or promise of benefit, held out to him in respect to his escape from the consequences of his offence or the mitigation of his punishment, by a person in authority or with the apparent sanction of such person. Smith's case, 10 Grat. *IU. 71. A person to whom a free negrff is bound as apprentice, though a „ justice of the, peace, if not acting as such and in no way affected by the of- 154 EVIDENCE. fence, is not a person in authority in the sense of the rule which excludes confessions made to a person in authority. Ibid. 72. On a prosecution for uttering or attempting to employ as true, a forged note purporting to be the note of the bank of D. in PennsylirtEinia, a bank- ing company, authorized by the laws of Pennsylvania, the existence of such bank may be proved by parol evidence. The averment that it was authorized ty, the laws of Pennsylvania, is surplussage and need not ts proved. Cadiz's case, 10 Grat. 776. 73. Upon a trial, the defendant introduces a bond upon which a receipt is endorsed, which receipt is attested by a witness. The receipt is evidence for the plaintiff, without his calling the witness to prove it. B. Staion v. Fitiman, sJieriff, 11 Grat. 99, PiMman, sheriff \. B. Staton, Id. 74. Parol evidence that the clerk of a drawee of a bill of exchange was authorized to refuse acceptance of a bill, is admissible in an action by the holder against the endorser. Stainback V. The Bank of Virginia, 11 Grat. 260. t , ' ' 75. In debt on a bond for money loalied, upon a plea of non estfaduin, defendant relies on the fact that the obligee did not have the means to lend the money ; and tt> rebut this the plaintiff introduces evidence to shew that he had money as executor. The defendant may introduce the settlement made by the plaintiff of his accounts as executor, to shew he did not have the money from that Sjjuroe. McDowell's ex'or v. Crawford, 11 Grat. 377. 76. A certificate of the Secretary of the State of Ohio, that a statute certified, is correctly copied from the original rolls on file in his ofice, is a due authentication of the statute, according to the act of Congress. WUsm V. Lazier et als., 11 Grat. 477. 77. Proof that when a deed was read, it was understood in a very material respect, as different from what it is, inay tend to shew that it was misread, and therefore is competent evidence. But if the deed was cor- rectly read, the misunderstanding of it, by a party, cannot affect its validity as a deed. Harrison v. Middleton, 11 Grat. 527. 78. In a writ of right or ejectment, the tenant may show the entry and survey on which lus patent is founded, in order to show adversary posses- sion under claim of title. Koiner V. Rankin's heirs, 11 Grat. 420. 79. Acts pr declarations of a person who had been the agent in procuring a deed for another, made whilst the negotiation was pending, or the. deed was in process of execution, are competent evidence against the grantee to shew fraud. Smith's aikn'r v. Betty el als., 11 Grat. 752. Same v. Serman et aU., Id. EVIDENCE. 155 2. What IS NOT BTiDENCE. 1. An authenticated copy of a deed, recorded in a county where none of the land, thereby conveyed, lies, is not competent evidence in place of the original. Pollard's heirs v. Lively, 2 Grat, 216. 2. JChe, record of a suit between other plaintiffs and defendants, to' which tiie pi:esent plaintiffs were neither parties nor privies, is not competent evi- dence against them. Downer & Co. v. Morrison, 2 Grat. 250. 3. Husband and wife convey the equity of redemption in the wife's land to a teustee, to be sold for the use and benefit of the grantors. They after- wards mortgage the same property and the wife dies. Parol evidence is not admissable against the mortgagee without notice, to prove that at the time of executing the deed, it was agtecd between the parties thereto, that the trustee should hold the property in trust to secure debts due from and ad- vancements made to the husband. SHer, Price & Co. v. McClanachan et ah., 2 Grat. 280. 4. If a protest under the act 28th Jan'y, 1829, Sup. R. C. p. 259, or the act 3d Feb'y, 1834, Sess. acts 75, does not state that notice of the dishonor of the,note was given to tjje endorser, Jihe affidavit, of the, notary stating that tjie notice was given is not competent testimony. Walter v. Twrner, 2 Grat. 534. ', ' ' . ', ^ ,. , ' , 5. Certificate of justices of the acknowledgment pf a deed by the grantor is not conclusive evidence that ej^ecutipn of the deed is complete. Hutchi- son and wife v. Bust et aU., 2 Grat. 394, 6. If the official receipt of the constable is given for an execution not in the name of the relator in the action, or for a debt or claim, for wbich the relator could not maintain a warrant in his own name, then the receipt is not admissible evidence to maintalin the action of the relator. McNeale et als. V. Oovervarfor Clarke, 3 Grat. 299. 7. A creditor requests his debtor to remit the amount due. This does not authoriz« evidence of local usage or understanding, to give a meaning to the terms of the letter different from that which they obviously bear. Gross, Myers & Moore v. Criss, 3 Grat. 262. _ 8. The previous statements of a witness having been given in evidence, the party giving them in evidence, cannot proye them untrue ; but if allowed in evidence, the other party will not be authorized to prove the statements toue. Charlton v. Unis, 4 Grat. 58. 9. In a suit for freedom, hearsay evidence that plaiiitiff was free, is not admissible to corroborate other witnesses, or for any other purpose. Ihid. 10. The fact that a' witness haS negro blood in his veins and is of negro descent,, though not so near as to render him inoonjpetent as a witness, is 156 EVIDENCE. not competent evidence to impeach his credibility, (three judges dissenting.) Dean's case, 4 Grat. 541. 11. The deed of the collector of the direct tax of the U. S., made under the act of Jan'y 9th, 1815, does not ftimish prima facie evidence- of the regularity of the collector's proceedings. Jessee v. Preston, 5 Grat; 120. ^eith V. same. Id, 12. A party claiming title under a deed from the collector of the tJ. S. for land sold for the direct tax, must shew that everything was done, which the law required to be done, before making the sale. Ibid. 13. The deposition of the collector in general terms that the sale was made in exact pursuance of the act of Congress, without specifying what was done is not proper evidence of the fact. Evidience of the varioUs'pro- ceedings required by law, before the sale was made, shctuld be adduced to enable the court to determine, upon the facts proved whether the authority to sell was properly exercised in the particular case. Ibid. 14. A decree directing a conveyance of land by the marshal is not of itself competent evidence of the marshal's authority to convey the land embraced in the deed, unless it designates the land directed to be conveyed; but the whole record, or so much thereof as will shew the land intended by the decree, must be produced with it. Masters v. Varner's ex'ors, 5 Grat. 168. 15. The recitals in the deed of the marshal are no evidence of his authority to convey, as against an adverse claimant. Ibid. 16. The declarations of a deceased person as to his ownership of specific land are not competent evidence for a party claiming under his title. Ibid. 17. The recitals in a deed, though evidence against a grantor and all claiming under hirii, are not evidence against third parties, claiming not under but adverse to the deed. Wiley et ab. v. Gevins et als., 6 Grat. 277. 18. A witness on the trial of a white man, not allowed to state what was said by a free' negro. Hopper, Steirs and Leminon^s ease, 6 Grat. 684. 19. A record of a conviction of a witness in another State, for petty larceny, not competent evidence to impeach the veracity of the witness. Tlhl's et als. case, 6 Grat. 706, 20. In an action of debtagainBt an administrator, a paper signed by his) in the lifetime of his intestate, refering to tlie bond sued on, not appearing to have boon signed as agent of the intestate, is not competent evideno^ against the administrator as the admission of a party to the record. Gaijtf' adm'r v, Alexander, 1 (Jrat, 257. 21. The paper not purporting to be executed as agent of the intestate, is EVIDENCE. 157 not of itself evidence of agency, so as to render it competent evidence. Ibid. 22. Theoonfessions or admissions of an accomplice in a felony, after the commission and completion of an offence, are not competent evidence against a prisoner, even though a previous conspiracy and combination between the prisoner and the aceompliee to commit the felony has be^n proved. Bimter's case, 7 Grat. 641. 23. A record to which neither the demandants nor tenants were parties, is not even prima _/iicie evidence against the tenant, that the grantor in the ' deed to the demandants was heir at law of the grantee in the patent under which the demandants claim title. Duncan v. Helms et aZs., 8 Grat. 68. , 24. The recitals in a deed of a commissioner of delinquent lands, are not evidence against a party claiming adversely to the deed. Walton v. Hale, 9 Grat. 194. 25. T. leases land to E. by deed, signed also by E. and E. holds over after the expiration of his term and then conveys a part of the leased premises to A. in fee simple. In a proceeding of unlawful detainer by T. against E. ^d A., they will not be permitted to introduce evidence of title to the land embraced in the lease, either in themselves or others, nor will they be permitted tjo introduce their title papers for the purpose of showing that they had not possession of the land claimed by T. Emerick v, Tavener, 9 Grat. 220. 26. In a writ of right, i° the pleadings and, verdict, the plain- tiffs are described as the heirs of B., under whom they ckim. This is not evidence that they are the heirs of B. in an appellate court. Bell's heirs V. ISaffder et oils., 10 Grat, 350. 27. The report of the surveyor, in the cause, speaks of one of the parties as the heirs of B. This is not evidence that he is such heir. Ibid. 28. Statements of a chainman, who is deadj as to the locality of the land and the streams the lines would cross, are not admissible evidence to fix the locality of the survey. Smith ei als. v. Chapman. 29. In an action for a devastavit, by a creditor against an executor and his sureties, the settled account of the' executor was introduced, whi^h showed a credit to the executor qf money paid to a legatee. The executor proposed to show by parol proof that the legatee paid, was not a legatee of hw testittor, but of a person of whom his testator was executor, and that his testator had received sufficient assets to pay the legacy, but had not done it. Held: The fact of such a legacy and that the executor's testator was Such executor, should be proved by the will and the record of his quali- fication ; and parol evidence is inadmissible for that purpose. Millers v. Gatm, 10 Grat. 477. 158 EVIDENCE. 30. In detinue for slaves by a trustee, in a deed of trust against a de- fendant, who claims the slaves by purchase from the same grantor, the de- fendant offers a witness to prove the debt secured by the deed was paid' by a sale of slaves to the creditor by the debtor. To this evidence the plaintiff objects and introduces a record in a chancery cause between the debtor and creditor, in which it has been decided that the price of these slaves has been, by agreement between the debtbr and creditor, applied in part dis- charge of another debt. Held: The decree is cpnclusive and the defend- ant's evidence is inadmissible. Nichols v. Campbell, 10 G-rat. 560. 31. In the same cause it was decided that there was no usury in the debt secured by the deed of trust. The decree condudes the defendant and he. cannot set up usury in this cause. Ibid. 32. In a prosecution for rape it is not competent to give in evidence any particulars of the description of the person committing the rape, which may have been given by the woman, Brpgy's case, 10 Grat. 722. 33. A fortiori, is it not competent if the woman when examined as a wit- ness declines to. give a description of the person committLog the offence. Ibid. , ^ 34. A witness for the prisoner on a trial for felony who had given evi- dence at a former trial is absent from the commonwealth at the second trial. It is not competent for the prisoner to prove what the witness swore to on the first trial. Ibid. 35. In the case of a joint purchase of land by two, parol evidence is not admissible to prove dn agreement between them for an unequal division of the land. Jarratt v. Jolmsoii, 11 Grat. 327. 36. A note from tho defendant to the plaintiff, delivered some days before the trial, authorizing the plaintiff to introduce his books as evidence, if he will allow them to be examined by the defendant's counsel previous to the trial, is not admissible evidence for the defendant, for any purpose. Mls- Dowell's ex'or v. Crawford, 11 Grat. 377. 37. An extract or copy from his field notes, taken by a surveyor is not evidence, and he can only use it to i-efresh hia memory ; he must then speak from his recollection, Harrison v. Middleton, 11 Grat. 537. 38. Declarations of a person who bad been the agent in procuring a deed for another, made either before the negotiation for the deed commenced or after the execution of the deed was completed, are incompetent evidence against the grantee in a deed, to shew that provisions which were intended to be inserted in the deed had been fraudulently omitted. Smith's adm'ry. Betty et als. 11 Grat. 752. Same v. Thttrman et als.id. 39. The declarations of a grantor in a voluntary deed, made after its ex- ecution are not competent evidence against the grantee, to show that pro- visions which were intended to be inserted in the deed had been fraudu- lently omitted. Ibid. EVIDENCE. 159 40. Nor are the deolajfatiojris of the grantor made hefbre.the execution of the deed, competent evidence against the grantee, in, favor of the grantor's heirs ;a,nd next of kin, to show that the deed was fraudulently prbcured. I6j(f. ■ ■ . , 3. OtSee Principles. 1. The court should not instruct the jury on the sufficiency of the eVi- ' dehoe to inaiutain the issue. McKinley " {_ 16. On a motion by administratrix of high sheriff against deputy and his sureties, for failure to pay over money made on execution, the whole record of the cause on the motion against her, is not necessary, but the judgment' is sufEcient; that and its recitals being ^riwiii fade evidence against the deputy and his sureties. Gox et ah v. Thomas' adm'r, 9 (Jrat. 323. ' ■ : ., > ■ * ■ - 17. In an action on a proniissory note, the defendant will not bepermit- ted to question the genuineness of the note or to show that it had been altered, after it was indorsed" by him, without the affidavit required by the statute. Archer v. Ward, 9 Grat. 622. 18. A witness may refresh his memory by reference "to a J)apei;, whether an original or a copy afvj whether written by himself or another. But he must then speak from his own recollection thus refreshed. Earrisson v. Middleton, 11 Grat. 527. EXAMINING COURTS.— EXCEPTIONS. 161 19. But a surveyor who made a survey from a diagram handed him by the plaintiff, and vrhioh he has in Court, may refer to the courses and dis- tances on the diagram, though he may not be able to remember them inde- pendent of it : The diagram is itself evidence, and he may point out on it the lines he ran. Ibid. 20. Quwre : if the record of a suit by parties claiming the estate against executor is evidence against a specific legatee who was not a party. Nel- son's adm'r v. Comwell, 11 Grat. 724. 21. A cause is brought on to be heard upon the bill, answer, exhibits and awards. Qucere : if the depositions and commissioners report are a part of the record, and evidence as such in a case, where such record is evidence. Ibid. 22. A certificate of the secretary of the state of Ohio under the great seal of the state, that a statute certified is correctly copied from the original rolls on file in his office, is a due authentication of the statute, according to the act of Congress. Wilson v. Lazier et als., 11 Grat. 477. 23. A cause is brought on to be heard, upon the bill, answers, exhibits and award. Qucere: if the depositions and commissioners report are a part of the record, and evidence as such, in a case, in which the record is evi- dence. Nelson's adm'r v. Comwell, 11 Grat. 724. 24. Qucere: if the record of a suit by parties claiming the estate against the executor, is evidence against a specific legatee, who was not a party. lUd. See Appeals and Witness. EXAMINING COURTS. An examining court has no right to sign a bill of exceptions to any opin- ion or act of the court ; and if they do, it is no part of the record of the trial. Souther's case, 7 Grat. 673 . EXCEPTIONS. 1. The court before which a cause has been tried, may, upon overruling a motion for a new trial, refuse to certify the evidence, or the facts, where the testimony is conflicting or depends upon the credibility of the witnesses. 'Taliaferro v. Franldin, 1 Grat. 332. 2. No exception having been taken to the rejection of a plea, offered by the defendant in the court below, the propriety of rejecting the plea cannot be considered by the appellate court. Bowyer v. Hewitt, Euffner & Co., 2 Grat. 193. • K 162 EXCEPTIONS. 3. An Qxoeption to the admission of a deposition, as evidence, for an ir- regularity in taking it, must state the grounds of the objection ; otherwise the appellate court will not notice it. Barker v. Barker's adm'r, 2 Grat. 344. 4. A hill of exceptions to the opinion of the court refusing a new trial, should state that the objection to the damages, as excessive, was taken in the motion to the court. Law v. Law, 2 Grat. 366. 5. An exception to an opinion of the court excluding testimony, must shew its relevancy, or the judgment will be presumed to be correct, in the appellate court. Carpenter and wife v. > Utz et als., 4 Grat. 270. 6. An exception to an opinion of the court, refusing a new trial, states all the evidence on the trial, instead of the facts proved. The appellate court can not consider the parol evidence of the appellant, but if upon the written evidence and the parol levidence of the appellee, the verdict was er- roneous, the judgment will be reversed and a new trial awarded. Pasley V. English et als., 5 Grat. 141. 7. A bill of exceptions to an opinion of the court, refusing a new trial, sets out the whole evidence, instead of stating the facts proved. The appel- late court will not consider the question. Forkner v. Stuart, 6 Grat. 197. 8. A bill of exceptions to the opinion of the court refusing to grant a new trial, only states the facts which the evidence tended to prove: the court taking the evidence of the appellee to prove all it tended to prove, and that of the appellant as only tending to prove his conflicting pretensions, will consider whether the verdict and judgment are, or are not correct. Moffatt v. Bowman, 6 Grat. 219. 9. If a bill of exceptions to an opinion of the court below merely sets forth the testimony, which is uncertain and vague in its character, and its weight and the facta to be deduced therefrom, depend upon the credit given to the witnesses, it is not competent for an appellate court to review the judgment of the court below. Hamsbarger's adm'r ^ Kinney, 6 Grat. 287. 10. Where the evidence is contradictory, the court which tried the cause, cannot be required to state in a bill of exceptions, either the evidence or the facts proved % the witnesses respectively. It is enough to state that the evidence was contradictory. Grayson's case, 6 Grat. 712. 11. In an action by an executor upon a refunding bond, after offering in evidence, the record of the decree against him, he offers the execution, which issued upon it and the return thereon, which is objected to, but ad- mitted. The defendant excepts but fails to make the execution a part of the exception. The relevancy of the evidence being obvious without an in- spection of the execution, it is not essential that it should have been inserted in the exception. Archer v. Archer's adm'r, 8 Grat. 539. EXECUTIONS. 163 12. Qu(Bre: if the setting aside a venire-man, on the motion of the Com- monwealth is a ground of exception by the prisoner. Chres ease, 8 Grat. 606. 13. Although it is generally true that the evidence set out in one bill of exceptions, taken in the progress of the trial, cannot be looked to in consid- ering another, yet vrhere a bill of exception is taken after all the evidence has been submitted to the jury, and the bill of exceptions purports to set out all the evidence, it seems that evidence set out in this bill of exceptions may be looked to, in considering the question raised in another bill, taken in the progress of the trial; and this, though the evidence had not been in- troduced, after the first bill of exceptions had been taken. Perkins' adm'r V. Hawkins' adm'x, 9 Grat. 649. 14. A commissidner's report, made in a cause, had been returned for more than six years, and no exception taken to it, until the opinion vras pronounced, and then it was excepted to for want of notice. It was proper to overrule the exception. Miller v. Holcombe's ea^or el ah., 9 Grat. 665. 15. A party complaining of the admission of improper evidence must state the facts, in his bill of exceptions, from which it will appear affirma- tively to the appellate court, that the evidence was improper. Johnson's e£or V. Jennings adm'r, 10 Grat. 1. 16. A question is propounded to a witness, which is objected to, but the objection is overruled and an exception is taken. The bill of exceptions ' does not state the answer of the witness or that he answered the question. The appellate court will not reverse the judgment. Ibid. 17. If an exception is taken to an opinion of the court excluding testi- mony, the exception must shew the relevancy of the testimony, or it is no ground for reversing the judgment. Ibid. 18 An exception to an opinion of the court refusing an instruction asked, does not state the facts of the case, so as to show its relevancy. The appellate court will not undertake to decide whether the court below did right or wrong in refusing the instruction. FitzhugVs ex' or v. G. Fitzhugh, 11 Grat. 300. 19. An exception to an opinion of the court refusing to grant a new trial only states the evidence, which is parol. The court will only consider the evidence of the appellee. Parish & Co. v. Reigle, 11 Grat. 697. ■ Nqye^ ei^x V. Hv/mphreys, id. 636. See Appeals and New Trial. EXECUTIONS. 1. An execution issued by a justice of the peace of one county is valid. 164 EXECUTIONS. though it purports to be issued in another county, if in fact, it was issued in the proper county. Davis v. Davis, 2 Grat. 363. 2. One bond of indemnity may be properly given by and received from plaintiffs in several executions. Ibid. 3. Upon a bona fide sale of personal property, though the vendee does not take possession at the time of sale, yet if he gets possession before an execution is issued against the vendor, his title is good against creditors. McKinley, sheriff for Berry, v. Ensell et als., 2 Grat. 333. 4. The landlord's Hen for a year's rent on the goods and chattels of his tenant does not extend to protect them from being taken under execution, except in oases where they are upon the demised premises. Geiger's adm'r V. Harman's eai'a;, 3 Grat. 130. 5. A sale of property under exeoution.by the sheriff, though irregular, if bona fide, is valid. Garr's adm'rs y. Glasscock's adm'r et als., 3 Grat. 343. 6. A bona fide purchaser of property at a sheriff's sale, under execution which is irregular, leaves the property in the possession of the original owner, but possession is taken thereof, by the administrator of the purchaser before creditors have acquired a specific lien thereon by execution. It is not liable to the original owner's creditors. Ibid. 7. The lien of an execution expires with the authority to sell. Ibid. 8. T. makes a parol loan of a slave to C. and the slave remains in the possession of C. and of C.'s executors for more than five years, and then T- takes possession of him. C.'s executors bring an action against T. to re- cover the slave, which goes against them. The creditors of C. who have obtained judgment against his executors have no right to take the slave in execution against a legatee of C, but having done so and the legatee having applied for and obtained an injunction against the sale of the slave, upon the hearing, the court may decree that the slave shall be sold to satisfy the debts due the oneditors of T. Taylor v. Beale et als., 4 Grat. 93. 9. Upon a motion to quash a writ and inquisition founded on a judgment at law, which motion ia sustained, the writ and inquisition are a part of the record, though no bill of exceptions is taken ; and will be so treated in the court of appeals. Wallop's adm'r v. Scarburgh et als., 5 Grat. 1. 10. A stranger having acquired an equitable right to the benefit of an execution, or to the property on which it is levied, will generally have au- thority to sue out and conduct the process, or to object to its regularity or validity ; but he must do it in the name of a legal party to the process, or one who can be made so. And his authority to use the name of the party to the process in a court of law, will be so far recognized by such court, as to preclude the intervention of such party for the purpose of defeating it. Ibid. EXECUTIONS. 165 11. A decree directs a sale of land, if a.sum certain is not paid by a cer- tain day. The clerk has no authority to issue an execution on this decree, without an order of the court or of the judge in vacation. ShacJcleford v. Apperson, 6 Grat. 451. 12. Though circumstances may exist which will warrant the court or the judge in vacation to allow process of execution on such an interlocutory decree, these circumstances must be shewn, and if they are not shewn, it is improper to allow it. Ibid. 13. If an execution is allowed by the clerk on such a decree, without order of the court, the court may quash the execution in term, or the judge in vacation may restrain the proceedings upon it, by an injunction order. Ibid. 14. A mere countermand of an execution by a creditor after it has gone into the hands of the sheriff, but before it is levied, does not relieve the surety of the execution debtor. Humphrey v. Hits, 6 Grat. 509. 15. A tender of money in payment of a judgment will not authorize 'the quashing an execution issued tbereon, unless the tender is followed by the payment of the money into court, and motion is made to enter satisfaction on the record. Shumaker \. Nichols, 6 Grat. 592. 16. A court of equity will not interfere to stop an execution upon the ground of the tender of the money in payment of the judgment, where there is neither allegation nor proof that the defendant in the execution kept the money on hand for the discharge of the judgment. 17. The common law writ of capias pro fine is unTepealed and may be used by the commonwealth. Webster's case, 8 Grat. 702. 18. Where there is a judgment, in favor of the commonwealth for a fine, and costs of prosecution, the writ may issue for the fine and costs ; but where the judgment is for costs only, the writ is not a proper process to en- force the judgment. Ibid. 19. Where a party is imprisoned upon a capias pro fine for a fine and costs, he can only obtain his discharge from, imprisonment by paying the fine and costs. But the term of such imprisonment is limited by the provi- sions of the Code, oh. 209, 1 17, p. 781. Ibid. 20. A sheriff is entitled to commissions on a ca. sa. executed on the de- fendant, who after taking the benefit of the prison bounds, pays the amount of the execution to the plaintiff, by whom he is thereupon discharged from custody before the return day of the execution. Gardner v. Neal, 9 Grat. 85. 21. A party claiming that he has not been credited with all the money paid by him to the sheriff upon an execution, may have any injustice done 166 EX POST FACTO LAWS. to him, in that 'lespeot, corrected by the court from which the execution issued ; and it is not a case for an injunction and relief in equity. Morri- son V. Speer, 10 Grat. 228. 22. The issue of an execution after a year and a day from the date of the judgment, renders the execution not void, but voidable; and this irregu- larity cannot be taken advantage of in an action founded upon the return on the execution. Beale's adm'r v. Botetourt justices, 10 Grat. 278. 23. A mere error of form in an execution issued against an executor, where it has been treated throughout as an execution de bonis iestatoris, can- not be set up as a defence to an action of devastavit against the executor and his sureties, founded upon the return upon it. Ibid. 24. A sheriff may have leave to amend his return upon an execution, after notice of a motion against him, founded on the original return. And the amended return may be made by a deputy, who did not make the ori^- nal return. >Si!o»e v. Wilson, 10 Grat. 529. 25. An elegit issued upon a judgment rendered against a bankrupt, before his bankruptcy, may be in the usual form ; and in executing it the sheriff must take notice of the bankruptcy of the debtor, and disregarding all his property not subject to the lien of a judgment, levy the elegit upon that only which is so subject. McOance v. Taylor, 10 Grat. 589. EXECUTORS. See Personal Representative. EXECUTORY CONTRACTS. See Contracts. EX POST FACTO LAWS. 1. The provision in the Constitution forbidding ex post facto laws relates to crimes and punishments, and not to the mode of proceeding in criminal oases. Ferry's case, 3 Grat. 632. 2. Though an offence committed before the Code of 1849 went into ope- ration, must, so far as the question of guilt, degree of crime, quantum of punishment and rules of evidence are concerned, be governed by the law in force at the time the offence was committed, yet upon the question of the prisoner's right to be discharged, from the failure to try him, arising after the Code went into operation, it must be governed by the law in the Code. Adcoek's case, 8 Grat. 661. FERRIES. 167 PERRIES. 1. Ferry franchise in Virginia is the creature of. the statute law ; and the rights of the owner of the ferry are to be measured by the statute. SomerviUe v. Wimbish, 7 Grat. 205. 2. Though a ferry has been established for any length of time across a river, it is competent for the legislature to establish another ferry from the other side of the river, to pass along the same line used by the first ; and this is no invasion of the ferry franchise of the owner of the first ferry. Ibid. 3. The establishment of such a ferry, confers upon the owner no title to any portion of the soil on the other side of the stream, and no casement there, beyond the incidental delegation of such as has been theretofore, or may be thereafter acquired by the public as a highway. Ibid. 4. Qucere : if in such case, the ferry franchise will carry with it the privilege of using any public roads on the opposite land for the purpose of landing or taking in passengers. Ibid. 5. The order of the county court, directing the justices to be summoned to consider the verdict of the jury in ferry cases, may be executed by leaving a notice in the mode directed in the general law in relation to notices. Ibid. 6. A person who signed a memorial to the legislature for the establish, ment of a ferry, is not thereby rendered incompetent to serve on the jury. Rid. 7. The judgment of a county court, giving leave to an applicant to erect a dam, provides that the applicant shall keep a ferry boat at the crossing of a public road over the stream across which the dam is to be erected. The county and circuit courts having held, upon the proofs that a ferry boat will be sufficient to accommodate the public, the court of Appeals will presume that they acted correctly, nothing 'being shown to the contrary. Mairs v. Gallahue, 9 Grat. 94. 8. The duty of keeping up theferry boat is not merely personal to the gran- ter of the privilege of erecting the dam, but it is a condition of and inciden- tal to the grant and attaches to it, into whosesoever hands it may pass. Ibid. 9. The kind of boat to be kept must be such a one as the exigencies of the travel and trade on the road shall require. Ibid. 10. It is the duty of the party required, in such a case, to keep up the ferry boat, to ferry the public over the stream free of charge. Ibid. 168 PINES.— FORCIBLE ENTRY AND DETAINER. FINES. See Forfeitures and Penalties. FORCIBLE ENTRY AND DETAINER. 1. In a proceeding of forcible entry and detainer, the court failing to meet on the day to which it is adjourned, the cause is not discontinued, but stands adjourned by operation of law, to the next county court. Mann V. Owynn et als, 8 Grat. 58. r 2. Upon a writ of unlawful detainer, the defendant sets up title in him- self. The plaintiff may prove that the defendant entered on the premises under a parol lease from himself, though the lease proved was for more than a year. Adams v. Martin, 8 Grat. 107. 3. In a writ of unlawful detainer, the defendant claiming title under a deed to himself and another, as joint tenants, that other person is not a competent witness for him to sustain his right of possession. Ibid. 4. An unlawful detainer case removed to the circuit court, is properly placed on the docket at the head of the civil causes in the court.' Harrison V. Middleton, 11 Grat. 527. 5. A landlord sells land in possession of his tenant, by agreement under seal, and the tenant refuses to deliver possession, the landlord is the. proper party to institute a proceeding of unlawful detainer to obtain possession, Ihid. 6. If a case of unlawful detainer has been pending in the county court for more than twelve months, without a final decision, it may be removed to the circuit court; Id. and Kincheloe v. Tracewells, 11 Grat. 587. ' 7. The year is to be estimated from the organization of the court sum- moned to try the unlawful detainer. Kincheloe v. Tracewetls, 1 1 Grat. 587. 8. To entitle the plaintiff to recover possession upon a warrant of unlaw- ful detainer, he must prove that the defendant withheld the possession at the date of the warrant. But if the warrant does not state the withhold- ing possession by the defendant, that may be aided by the complaint, which states the fact. Ibid. 9. A senior patentee holds and cultivates his land outside of an inter- lock. A junior patentee afterwards takes possession, and clears and cul- tivates his land outside of the interlock and also clears and encloses a part of the interlock, and exorcises such acts of ownership over the whole as constitutes adversary possession ; and after five years dies. The possession of the heirs is not limited to their inclosure ; and the entry of the senior FORFEITURES AND PENALTIES. 169 patentee upon the heirs is tolled. He cannot recover by a wavrant of un- lawful detainer. Ibid. 10. If possession is taken under a mistake as to the true boundary, the fact is immaterial in a proceeding for an unlawful entry and detainer. Ibid. FOREIGN ATTACHMENTS. See Attachments. FORFEITED LANDS. See delinquent and eorfeited lands. FORFEITURES AND PENALTIES. 1. T. sells to P. a slave, in which he has but a life estate and P. in ig- norance of the fact and believing that he has an absolute interest in the slave, takes him out of the State and sells him. P. is li/able to the forfeit- ure and penalties imposed by the act 1 Rev. Code, ch. iii, | 48, p. 431. Poindexter &c. v. Davis et als, 6 Grat. 481. 2. A party in a cause is not bound to answer interrogatories which may subject him to a penalty or forfeiture. Ibid. 3. This rule is not confined to oases where the purpose of the action is to enforce the penalty "or forfeiture, but extends to cases where the dis- covery itself would expose the party to some action or suit or any penal or criminal pr..isecution tending to the like result. Ibid. 4. A. and P. unite in the purchase of land upon a credit and it is agreed between them, that if P. fails to pay all or any portion ,of his share of the purchase money, so that A. has to pay it, A. shall have the whole land, and shall repay to P. any part that he has paid. This is a forfeiture which a court of equity will relieve. Asher v. Pendleton et als, 6 Grat. 628. 5. The common law writ of capias pro fine, is unrepealed and may be used by the Commonwealth. Webster's case, 8 Grat. 702. 6. Where there is a judgment in faVor of the Commonwealth for a fine and costs of prosecution, the writ may issue for the fine and costs, but where the judgment is for costs only, the writ is not a proper process to enforce the judgment. Ibid. 170 FORGERY.— FORTHCOMING BONDS. 7. Where a party is imprisoned upon a capias pro fine for a fine and costs, he can only obtain his discharge from imprisonment by paying the fine and costs. But the term of imprisonment under such capias is limited by the provisions of the Code, ch. 209, ? 17, p. 781. lUd. 8. Upon a joint indictment against husband and wife for selling ardent spirits ; if they are convicted, there must be a separate fine against each. Hamor and wife's case, 8 Grat. 698. FORGERY. 1. In an indictment for forging a negotiable note, it is not necessary to set out the endorsements upon it. Perkins' case, 7 Grat. 651. 2. The paper does not cease to be a negotiable note, because for some informality, a bank would not discount it. Ibid. 3. The words "to the prejudice of another's right" in the Code, ch. 193 I 5. p. 733, in relation to forgeries are descriptive, not of the offence, but of the writings by which forgery may be committed ; and it is not therefore necessary that they shall be inserted in the indictment, in de- scribing the offence. Powell's case, 11 Grat. 822. 4. The maker of a negotiable note passes it to the payee with the name of a third person endorsed upon it, which name he forged. The forgery of the name upon the paper constitutes the offence of forgery. 1Mb. 5. The description of the writing in the indictment, as the endorsement of the person whose name is forged, will not vitiate the indictment; though the similated liability may not be technically that of an endorser, but of a different character. Ibid. FORTHCOMING BONDS. 1. A forthcoming bond, given by one of three joint debtors in a judg- ment, and forfeited, does not discharge and extinguish the original debt, as against the other joint debtors. Robinson et als v. Sherman et als, 2 Grat. 178. Leake v. Ferguson id., 419. 2. The surety in the forthcoming bond is surety for tlie debt. Bobinson et als V. Sherman et als. Id. 3. A forthcoming bond has the force of a judgment so as to create a lien upon the lands of the obligor, only from the time the bond is re- turned to the clerk's office. Jones &c. v. Myrick's ex'ors, 8 Grat. 179. Ml/rick's ex'ors v. Epes et als. Id. FORTHCOMING BONDS. 171 4. There being no evidence that the bond was returned to the clerk's office before the day on which there was award of execution thereon by the court, it will be regarded as having been returned to the office on that day. Ibid. 5. A forfeited forthcoming bond not returned to the clerk's office until some day in the term after the first, when there is an award of execution thereon, does not relate back to the first day of the term. lUA. • 6. Though a forthcoming bond is forfeited and not quashed, yet in equity the lien of the original judgment still exists ; and if the obligors in the bond prove insolvent, so that the debt is not paid, a court of law will quash the bond and thus revive the lien of the original judgment; and a court of equity having jurisdiction of the subject will treat the bond as a nullity, and proceed to give such relief as the credit6r is entitled to under his original judgment. lUd. 7. The forthcoming bond is signed by the debtor, a third person and the creditor in the execution. The bond is valid to bind the debtor, and the first security ; but the first security is only a co-security with the cred- itor and entitled to contribution from him. Booth v. Kinsey, 8 Grat. 560. 8. In such a case, if the debtor proves insolvent, the surety may be re- lieved to the extent of one moiety of the debt, either by bill in equity, or by motion under the statute for relief of sureties. Ibid. 9. In such case the motion on the forthcoming bond is not defective for failing to name the obligor as a co-obligor. Ibid. 10. An award of execution on a forfeited forthcoming bond cannot be successfully resisted on account of the invalidity of the original judgment, unless such judgment is null and void. Pates v. St. Clair, 11 Grat, 22. 11. A surety in a forthcoming bond is a surety for the debt, and when he pays it as such surety, he is entitled to all the rights of the creditor against the original debtor, existing at the time he became bound for the debt; and the judgment for the benefit of the surety so paying, is not ex- tinguished, but is transferred with all its obligatory force against the prin- cipal and constitutes a legal lien upon his real estate, owned at the date of the judgment or afterwards acquired. Hill v. Manser et als, 11 Grat. 522. 12. The surety in a forthcoming bond pays to the creditor a sum certain, on the execution issued on the bond against the principal and himself, and takes a receipt as for money paid by him. The evidence of payment, affi)rded by the receipt, will not be repelled by proof of loose declarations, that he had loaned the money to the principal debtor, who was his brother, so as to deprive him of the right to be substituted to the rightB and reme- dies of the creditor. Ibid. 172 FRANCHISES.— FRAUDS. 13. The creditor hswing taken a deed of trust from the principal dehtor, to secure the debt, and the debtor having subsequently given another deed of trust upon the same and other property to secure debts to a third party, one of which was for money loaned to pay a balance due on the judgment of which this third party had notice ; the surety in the forthcoming bond is entitled to have the property, embraced in the first deed, applied to sat- isfy the amount he has paid, with interest on so much thereof as would discharge the principal of the debt, and if that property does not discharge it, to have the land embraced in the second deed, subjected to discharge the balance. Ihid. See bonds. FRANCHISES. 1. The officers of a private corporation have no franchise jn their offices. Burr's ex'or et als v. McDonald et als, 3 Grat. 215. 2. The franchise, as well as the property of the citizen, may be taken for public purposes, upon making compensation therefor. James River & K. Co. V. Thompson & Teays, 3 Grat. 270. 3. Ferry franchise in Virginia is the creature of the statute law ; and the rights of the owners of the ferry are to be measured by the statute. Somerville v. Wimbmh, 7 Grat 205. FRAUDS. 1. A purchase of property by an executor, at hia own sale thereof, may be avoided by the parties interested therein. Bailey'^ adm'x v. Robinsons, 1 Grat. 4. 2. A purchase of property, by an executor, at his own sale, being set aside, he will not be held to take it at what it was then worth, upon the estimate o,f witnesses, but it will be sold again, if more can be obtained for it ; and if this cannot be done, his purchase will be confirmed. IWd. 3. A deed of trust for the benefit of creditors, conveys away other things, cattle, household and kitchen furniture, and debts, without specifi- cation in the deed or in the schedule accompanying it. It provides that the grantor shall remain in possession of the property six months ; and that no creditor shall have the benefit of the trust who does not release the granlor from any further liability, in three months. The deed is not therefore fraudulent. Kevav, v. Branch, 1 Grat. 274. 4. A deed of marriage settlement, made before marriage, conveying the property of the feme, and in which the intended husband joined, is fraud- FRAUDS. 173 ulent and void as to subsequent purchasers from the husband without notice, unless duly recorded. Thomas v. Gaines, 1 Grat. 347. 5. A court of equity -will, at the suit of a creditor of an insolvent debtor, pursue property, the avails of his laborj in the hands of parties uniting .with him to. screen the same from his creditors, or in the hands of vol- unteer purchasers from them. Commonwealth v. BicJcs &c., 1 Grat. 416. 6. Upon a bona fide sale of personal property, though the vendee does not take possession at the time of the sale, yet if he gets possession before an execution is issued against the vendor, his title is good against creditors. McKinley, sheriff, for Berry v. Eyisell et als, 2 Grat. 333. 7. So, though after such possession, he employs the vendor as his agent to sell the property ; and the vendor is in his possession as his agent, at the time the execution issues and is levied upon it. Ibid. 8. Property purchased at a sheriff's sale under execution, vfhioh though the sale was irregular, vras bona fide, and left vrith the debtor, is not sub- ject to the creditors of the debtor. Carr's adm'r v. Glasscock's adm'r et als, 3 Grat. 343. 9. A purchaser of property leaves it in possession of the original owner, but possession thereof is taken by the administrator of the purchaser be- fore creditors have acquired a specific lien thereon, by judgment and exe- cution. It is not liable to the original owner's creditors. Ibid. 10. Whilst property is so in the original owner's possession, he conveys it in trust to secure a surety who has notice of the first purchase. The administrator of the first purchase is entitled to the property against the surety. Ibid. 11. Quaere : If the.first sale had been fraudulent in fact, notice of the sale would have precluded the claimant under the first deed. Ibid. 12. The fraud of the maker of a note, by which he induces his surety to sign it, of which the payee has no notice, does not entitle the surety to relief in equity against the innocent payee or holder. Griffith et als v. Reynolds, 4 Grat. 46. 13. An administratrix who sells the property of the estate at a very great sacrifice, and buys it herself, will be held to account for it at the ap- praised value. Gros^ curatrix v. Gross' legatees, 4 Grat. 257. 14. An administratrix who hires out the slaves publicly and hires them herself at very reduced prices, and then hires them out to others at ad- vanced prices, will be held to account for them at the advanced price, or if that cannot be ascertained, for reasonable hires. Ibid. 15. The doctrine of fraud per se examined and repudiated. Bavis v. Turner, 4 Grat. 422. 174 FRAUDS. 16. The retaining possession of personal property by the vendor, after an absolute sale, is prima Jade fraudulent; but the presumption maybe rebutted by proof. Ibid. 17. Slaves remaining in possession of one person on hire, for more than five years, are not subject to be taken in execution for his debts. McKenzie ei als V. Macon, 5 Grat. 379. 18. The act 1 Rev. Code, oh. 101 ? 2 p. 372 does not apply to the case of property remaining in possession of on« person for more than five years on hire. Ibid. 19. A person expecting a judgment against him in an action ex delicto, transfers bonds held by him, and conveys an interest in real and personal estate, to evade the payment of the judgment. The transfers and convey- ances will be set aside at the suit of the judgment creditor. Green v. Wright, 6 Grat. 154. 20. On a sale of slaves, if the possession remains with the vendor, it is prima facie, evidence of fraud, but is not conclusive ; and it may be re- pelled by satisfactory legal evidence of the fairness of the transaction. Forkner v. Stuart, dsc, 6 Grat. 197. 21. On a contract for the hire of a slave, fraud cannot be inferred from the unfitness of the slave for the purpose for which he was hired, and a knowledge of such unfitness by the owner. Howell &c. v. Coles, 6 Grat. 393. 22. A deed of trust held to be fraudulent on its face, though execute I to indemnify a bona Jide surety, Spence v- Bagwell et als, 6 Grat. 444. 23. "When a court of equity will investigate a fraud, though the plaintiff has a remedy at law, Henley's adm'r v. Perkins et als, 6 Grat. 615. 24. A vendor is entitled to relief on account of the fraudulent conceal- ment of facts by the purchaser. But under the circumstances, the proper m'ode of relief was held to be compensation for the inj^ury, and not a re- cision of the contract. Armistead v. Hundley, 7 Grat. 52. 25. The grantor in an absolute conveyance of personal property, contin- uing in possession, raises the presumption of fraud as regards creditors of the grantor, and throws upon the grantee the burthen of provirg the fairness and bona jides of the transaction. Ourd v. Miller's tx'ors, 7 Grat. 185. 26. The surety of the grantor may direct the execution issued against himself and the grantor to be levied on the property ; and set up the fraud in the conveyance. Ibid. 27. A gift of slaves to a married daughter, by a father largely indebted at the time, in proportion to his property, is fraudulent as to his creditors FRAUDS. 175 and may be subjected by a party becoming hia surety in a forthcom- ing bond more than five years after the gift. Wilson v. Buchanan, 7 Grat. 334. • 28. In written proposals for a sale of stock in a mining company, if the representations contained therein are false as to any material fact, by which the purchasers have been misled to their injury and in which they are presumed to have trusted to the vendors, then the contract founded in such representations is void whetlier the vendors knew the representations to be felse at the time they were made or not and whether made with a, fraudulent intent or not. Crump v. United States Mining Com,pany, 7 Grat. 352, 29. In such case the suppression from the written proposals "of any fact known to the vendors, materially affecting the value of the thing to be sold, and inconsistent with the statements in the written proposals, vi- tiates the contract' as fully as the false afiirmation of any material fact, if the purchaser is injured thereby. Ihid. 30. If an agent for the sale of property makes false representations of its value and condition, the principal is affected thereby, and cannot enforce the contract for the sale of the property ; and that though the principal gives him a written description of the property. Ibid. 31. A purchase of bonds from an executor at a discount of eighteen per cent, with knowledge that the condition of the estate does not require the sale, is a fraud in the purchaser, though be may know that they do not. amount to more than the executor's interest in the estate, and the executor not having paid to the other legatees their portion of the es- tate, the purchaser will be compelled to repay the money to them. Pinck- ard V. Woods &c., 8 Grat. 140. 32. If the sureties of the executor have been compelled to pay the amount to the legatees, they may recover from the purchaser. Ibid. 33. A deed of trust to secure creditors requires them to signify their acceptance of it by signing it within thirty days, and to release the debtor. The creditors being dissatisfied with the provisions, it is agreed between them and the debtor that they will not sign it ; but two of them who had entered into this agreement sign the deed two days before the thirty days expire, with the avowed purpose that it is for the benefit of all. After this, one of these comes into equity to enforce the deed for the benefit of himself and the other who signed. A court of equity will not entertain him. PMppen Y. Dicrham, 8 Grat. 457. 34. A party who has been guilty of any fraud or illegal conduct in the transaction cannot recover back money paid by him on a contract which has been wholly rescinded, or the consideration of which has wholly failed. Johnson's ex' or v. Jennings' adm'r, 10 Grat. 1. 176 FRAUDS. 35. To constitute fraud in the sale of goods, it is not enough to repre- sent them as sound and marketable, -when they were unsound and dam- aged, unless the vendor knew that the representations were untrue, or used some fraud or act to disguise or conceal their true condition or qual- ity. Cunningham v. Smith et als, 10 Grat. 255. 36. But if the representations were untrue and the vendor at the time of making them knew them to be untrue, and knowingly made them with intent to deceive the purchasers, that is fraud. Ihid. 37. An insolvent debtor N. purchases slaves at a public sale, pays for them through another and has the receipt taken in the name of, and the slaves delivered to his sister, an infant living with her father. N. after- wards took the insolvent debtor's oath, on a ca. sa. and the sheriff brought separate actions of detinue against the father and sister to recover the slaves. Held, 1st. Though N. never had possession of the slaves, but they were transferred by a fraudulent arrangement to a third person, the sheriff may recover them from the third person. 2d. Though the sister to whom the slaves were delivered, was an ■ infant at the time when the action was instituted, yet as 'she did not set up the infancy to defeat the ac- tion and as it may reasonably be inferred from the evidence that she was of full age, when the cause was heard upon a demurrer to the evidence, and appeared and defended herself by counsel, she is bound by the judg- ment. 3d. Though the slaves were sent to and remained upon the pre- mises of the father, yet as his daughter lived with him and claimed the slaves, and he did not, the action cannot be maintained against him. B. Staton V. Pittman sh'ff, 11 Grat. 99. B. Staton v. Pitiman, sh'ff. Id. 38. The same person is guardian of two wards and" he transfers a bond belonging to one of his wards, to the husband of the other, in payment of his wife's estate, the husband not knowing or having any reason to suspect, that it belongs to the other ward, the guardian and his sureties being then wealthy. Afterwards the guardian fails. The husband who received the bond is not responsible to the ward whose pri!(perty the bond was for the amount thereof. Hunter v. Lawrence's adm'r et als, 11 Grat. 111. 39. The principle upon which a party dealing with a fiduciary is held responsible, is, that he has co-operated in the fraud of the fiduciary. Ihid. 40. An action on the case for fraud, in selling an unsound slave to the plantiff, which he was induced to purchase by means of a false and fraud- ulent warranty of soundness, or of a fraudulent concealment of the un- soundness of the slave, cannot be maintained against the personal rep- resentative of the vendor ; and if there be judgment in such an action, in favor of the plantiff, the error will not be cured by the statute of Jeo- fails. 1 Rev. Code 1819, oh. 128 ? 103 p. 511. Boxjle's adm'r v. Overhy, 11 Grat. 202.* * See Code of Va. ch. 130 § ID, et seq. FREE NEGROES.— GAMING. 177 41. A decree of a court of equity set aside upon the ground of fraupl ijj its procurement on a bill against the heirs at law of the party pro- curing the decree. J^vans et ah y. Spurgin et ah, 11 Grat. 615. See- Statute op Frauds and Deeds. FREE NEGROES. 1. The offence of a free negro in coming into the State and remaining therein in violation of the 28th and 29th sections of ch. 198 of the Code of Va^ is a misdemeanor, for which he is liable to be prosecuted and pun- ished, in the manner provided for in the 28th section. Morris, ex parte, 11 Grat. 292. 2. Upon conviction of 8u<;h a misdemeanor, the party is entitled, as of right, under § 15, of oh. 213 of the Code to an appeal from the decision of the justice, to the court of the county or coiposation in which his con- viction was had ; and it is the duty of the justice to allow the appeal, if duly applied for. Ibid. 3. If, in such a case, the appeal is duly applied for and refused by th* justice, the party may have relief by mandamus from the circuit court. Ibid. 4. If the circuit court refuses to issue a mandamus, in such a case, the party may apply to the supreme court of appeals for a supersedeas or writ of error ; and have the action of the circuit court reviewed. Ibid. GAMING. 1. Money lent to be betted upon a presidential election, with the know- ledge of the lender at the time of the loan, cannot be recovered by suit Machir v. Moore, 2 Grat. 257. 2. In an action at la.w, on a promise founded on a gaming consideration, if the defendant is surprised at the trial, and there is a verdict and judg- ment against him, he may come into equity for relief, though he made no effort to obtain a new trial in the common law court. White v. Washing- ton's eaSor, 5 Grat. 645. 3. Quoire : If such defendant may not come into equity for a discovery, and if the discovery is made, whether he may not have relief, though there was no surprise on the trial at law. Ibid. 4. The county of Jackson owned a piece of land for the purpose of L 178 GIFT.— GRAND JUROR. maintaining paupers, which was leased to William Humphreys. Hum- phreys had a shooting match on the land. While the shooting was going on V. and others went up a ravine about two hundred yards from the place of shooting and played bluff. They could not be seen from the place of shooting. This is not playing cards at a public place. Yandin^s case, 6 Grat. 689. 5. A court of equity will not lend its aid for the purpose of settling the transactions of a partnership for gambling. Watson v. Fletcher, 7 Grat. 1. 6. Though the pleadings do not show the nature of the partnership, yet, if it appears from the evidence taken before the commissioner, the court will refuse to settle the gambling account. Ilid. 7. One of the partners qualifies as the administrator of the other, he cannot question the right of his intestate to a moiety of the pro- perty, though bought and used for gambling purposes. Ibid. 8. A store-house in a village, late at night, after persons cease coming to the store to purchase goods, and the door is locked, is not a public place, within the meaning of the statute against gaming. Feazle^s case, 8 Grat. 555. 9. Betting on a horse race Ss not gambling within the meaning of the 10th section of the act 14th March 1848, concerning crimes and punish- ments, and proceedings in criminal cases. Shelton's case, 8 Grat. 592, GIFT. 1. A parol gift of real estate, by a father, to a daughter is mad«, and she is put into possession of the property; but before she obtains a convey- ance of the property, the father becomes insolvent. The gift is void as to creditors. Commonwealth v. Bicks, 1 Grat. 416. 2. Father gives slaves to his child, in his lifetime ; and afterwards di- rects his own slaves, with those lent to his children, to be equally divided among them. It being apparent that he intended that all his children should have equal portions of his estate — the slaves given to the child must be accounted for, as of their value at the time of the division of the es- tate. Kean v. Welch, 1 Grat. 402. 3. A parol gift of a slave, to take effect upon the death of the doner who is not then sick, is void. Barker v. Barker's adm'r, 2 Grat. 344. GRAND JUROR. See Juror. GUARANTOR AND GUARANTEE. 179 GUARANTOR AND GUARANTEE. 1. The transferrer for value of a.negotiable note, though not a guaran. tor of the solvency of the parties to the note, is a guarantor of the genu- ineness of the instrument. Lyons v. Miller, 6 Grat. 427. 2. So, if the transferrer is but an agent, unless he discloses not only his agency, but the name of Ms principal. Ibid. 3. J. executes to W. a note payable on demand, which is endorsed in blank by B., who thereby intends to guaranty the payment of the note. The endorsement imports a guarantee according to the terms of the note ; and this cannot be altered by proof of a parol agreement at the time of the endorsement that the note was not to be paid until the happening of a future contingent event. Watson v. Hurt, 6 Grat 633. 4. If five years elapse from the date of the note, before suit brought up- on the guarantee, it is barred by the statute of limitations. Ibid. 5. A letter of credit addressed to W. and "W. may be proved to have been intended for W. "W. & Co. so as tchold the writer bound to the latter upon it. WadsioortJi et als v. Allen &c., 8 Grat. 174. 6. A guarantor may specify, in the letter of credit which he gives, the terms on which he will be bound ; though the law, in the absence of all prescription of terms in the letter of credit, would have prescribed the performance of other acts by the party seeking to subject him upon his guarantee.' Ibid. 7. A guarantor undertaking to pay, upon receiving reasonable notice of the failure of the principal debtor to pay the debt when due, dispenses with notice of the acceptance of the guarantee by the party to whom it is addressed, even if the law would require such notice. Ibid. 8. What is reasonable notice, of the failure of the principal debtor to pay, is a question for the jury to decide. Ibid. , 9. The fact that the principal debtor gave his bond for the goods he purchased, did not release the guarantor. Ibid. 10. A guarantor of a debt may maintain a foreign attachment against the principal debtor, before he has paid the debt. Moore et als v. Holt, 10' Grat. 284. 11. A letter written by a party, to merchants with whom he had been in the habit of dealing, introduces to them his brother, who was a stranger to them ; stating that he was going to their city to purchase goods and re- questing them to introduce him- to some of the houses at which the writer dealt, " with assurance that any contract of his, will and shall be promptly paid" is a guarantee. Ibid. 180 GUARDIAN ANB WAKD. GUARDIAN AND WARD. 1. The principal of a ward's personal estate may be applied to the im- provement of his real estate, if for his interest. Jackson's adm'r v. Jaeh son's heirs, I Grat. 143. 2. The allowance for the support, maintenance and education of a ward must be limited to the annual profits of his estate. Ibid. 3. The whole annual profits of a war,d's estate, up to the time of his coming of age may be applied to the expenses of the ward. Ibid. 4. A surety of a guardian is not protected by lapse of time, or the stat- ute of limitations, against the claim of the ward who has been prosecut- ing a suit against the administratrix of the guardian. Roberts v. Calvin, 3 Grat. 358. 5. A decree should not be made against the surety of the guardian, un- til the account of the administratrix of the guardian is settled and an en- quiry is directed to ascertain whether any estate, real or personal of the guardian remains. Ibid. 6. Children live with their mother on her estate, for which she makes no charge, but their guardian makes advances to aid her to support the family. As it cannot be known how much of these advances has been ap- plied to the support of each child, the guardian should have a reasonable allowance for the support of his ward. Cunningham v. Cunningham, 4 Grat. 43. 7. Two months are allowed guardian for collecting and investing the annual profits of his ward's estate. Ibid. 8. In stating a guardian's account, it should be closed at the time when the guardianship terminated, and from that time the account should be ad- justed on the ordinary principle of debtor and creditor. Ihid- 9. It is error to aggregate the principal and interest due on the guardi- an's account and give a decree for the whole amount with interest thereon. Ibid. 10. A second guardian of an infant 'has no authority to file a bill in his own name against a former guardian, for an account of his transactions in relation to the ward's estate. Lemon, guardian v. Hansberger, 6 Grat. 301. 11. An infant may, by his next friend, call the acting guardian or any preceding guardian, to account, by a bill in chancery, but the bill must be in his own name by his next friend. Ibid. ■ 12. In a suit in equity by the guardian of infants for the sale of their GUAEDIAN InD WARD. 181 real estate, a guardian ad litem for the infants may be appointed at rules. TiMey ei als v. Starke's adm'r et als, 6 Grat. 339. 13. A guardian is not autliorized to file a bill in his own name to obtain possession of his ward's estate. He must file it in the name of the ward by his next friend. Sellings et als v. Bumgardner et als, 9 Grat. 273. 14. A guardian of infants is entitled to compensation for their support, though he may have promised their friends that he would not make any charge for it, and has kept no account agaitist them. Armstrong's JieirS v. Walhip et als, 6 Grat. 374. 16. A payment made to the husband of one of three, who had been wards and who is guardian of another of them, though intended to be a payment to all is not to be credited against the third ward, who is then an adult ; she not having authorized him to receive it, but is to be credited against the husband and wife and his ward. Ibid. 16. The accounts of the three wards Should be stated separately, from the commencement, or at least, when their expenses differed in amount. Ibid. 17. One of the wards being still an infant, there should not be a joint decree in their favor, though made with the consent of the next friend of the infant. Ibid. 18. A bond executed to an executor is transferred by him to a guardian, as part of his ward's estate. Whatever interest the ward has in the bond, is subject to the control of the guardian, who may receive the money, if voluntarily paid ; may sue for it in a common law court in the name of the executor, for his own use as guardian and cannot be prevented by the ex- ecutor ; or he may sell and transfer the bond. Hunter v. Lawrence's adm'r et als, 11 Grat. 111. ' 19. As a general rule, the guardian has the legal, »title of the ward's personal estate, and has the power and authority to sell it. Ibid. 20. A guardian violates his trust when he sells or transfers the property of his ward to pay his own debt. Ibid. 2i. The fraud of a guardian in disposing of the property of his ward, is not sufficient, of itself under all circumstances to invalidate his trans- actions with innocent parties. Ibid. 22. The same person is guardian of two wards, and he transfers a bond, belonging to one of his wards to the husband of the other, in payment of his wife's estate ; the husband not knowing or having any reason to sus- pect thai it belongs to the other ward ; the guardian, and his sureties also, being then wealthy. Afterwards]^ the guardian fails. The husband who 182 HABEAS CORPUS. received the bond is not responsible to the ward whose property the bond was, for the amount thereof. Ibid. 23. The principle upon which a party dealing with a fiduciary is held responsible, is, that he has co-operated in the fraud of the fiduciary. Ibid. 24. A guardian qualified in 1821. In 1825, he transferred in payment of a debt, a bond of his ward to a party wholly innocent of any participation in the guardian's fraud ; the ward comes of age in 1832 and takes no steps to obtain his estate from his guardian till 1840, when the guardian beooines insolvent. He then sues the sureties of the guardiai^ and recov- ers from them the amount due to him from his guardian. In all this time, the sureties had done nothing to secure the faithful discharge, of his du- ties by the guardian, or to compel him to pay over to the ward his estate on his coming of age. Even if the party who had received the bond from the guardian could be held responsible to the ward, he is not responsible to the sureties of the guardian. Ibid. HABEAS COKPUS;* 1. A court having jurisdiction of the case, having tried a negro as a free man, and sentenced him to imprisonment in the penitentiary, the general court cannot on the application of persons claiming the negro as a slave, discharge him from his imprisonment, by a proceeding by habeas corpus. Ball and Saiierwhite ex parte, 2 Grat. 588. 2. The habeas corpus is a remedy which only lies on the part of the person illegally imprisoned, or of some other person on his behalf. It does not lie for a master in a case of illegal imprisonment of his slave. Ibid. 3. The court of a'[)peals has no jurisdiction to grant a writ of error to a judgment upon an application for a writ of habeas corpus. Bell v. Tin Cotnmonwealth, 7 Grat. 201. 4. The petition for a writ of habeas corpus to obtain possession of a child may be in the name of the infant by his next friend or in the name of the person claiming possession ; and where it is the mother of the child claiming possession and she is married the second time, it may be in the name of the mother and second husband. ^Armstrong v. Stone and wife, 9 Grat. 102, 5. The proper office of a writ of habeas corpus is to release from ille- gal restraint ; and where the party is of years of discretion and sui juris, nothing more is done than to discharge him. But if he be not of an 'See Code ofVa. Constitutional Provisions p. 17, 40. Id. ch, 16, « 7, p. 96. Id. pp. 613-4. HEIRS AND DEVISEES. 183 age to determine for himself, the court or judge must decide for him, and make an order for his being placed in the proper custody ; determining to ■whom that custody belongs. Ibid. HEIRS AND DEVISEES. 1. Heirs and devisees are entitled to the rents and profits of the real es- tate descended or devised, until a depree of the court, subjecting them to the payment of debts. Hohson v. Tancey et als, 2 Grat. 73. 2. The heir is entitled to the interest upon surplus proceeds of land sold by ia, trustee, after the death of the grantor in the trust deed, up to the time of the decree directing the distribution of said surplus proceeds among creditors. Jones v. Lackland et als, 2 Grat. 81. 3. Heirs are only bound by judgments against their ancestor, when they cannot be paid out of the personal assets. Rogers v. Denham's heirs, 2 Grat. 200. 4. If the heir is sued, before proceedings are had against the personal representative, he must make that objection by plea in abatement. Ihid. 5. Heirs are entitled to have the personal assets of the ancestor ap- plied to satisfy his debts for their relief. Beall's adm'r v. Taylor's ctdm'r et als, 2 Grat. 532. 6. A foreign judgment does not merge the specialty on which it is foun- ded, as against the heirs of the debtor in Virginia. Ibid. 7. A party seeking to subject heirs to the payment of the bond of the ancestor, must show by satisfactory proof that the heirs are bound by the bond. IHper v. Douglass' ea^or, 3 Grat. 371. 8. Husband and wife, each hold the equitable estate in one moiety of a tract of land, for which a patent issues to the husband and wife. Though on the death of the wife, the legal estate in the whole tract vested in the husband surviving, the wife's equitable estate, in her moiety, descended to her heirs, subject to the trust and life estate of the husband as tenant by the curtesy. Norman's ea^x v. Cunningham and wife et als, 5 Grat. 63. 9. The husband holds the legal title of the undivided moiety of the wife^ in trust for her heirs. Ibid. 10. The husband having sold the land to bona, fide purchasers without notice, equity will compensate the heirs of the wife out of the estate of the husband. Ibid. 11. Quaere : Whether the measure of compensation is the value of the 184 HEIRS AND DEVISEES. land at the time of the sale, or the value at the death of the husband, ex- cluding permanent improTements made since the sale. Ibid. 12 The heirs of the wife are not precluded from claiming the land by their taking as devisees and legatees under the wiU of the husband. 26*. 13. The heirs of the wife, being the children of the husband are not barred by the collateral warranty of the husband in his deeds of convey- ance to the purchasers of the land. Ibid. 14. One of the heirs of the wife, not having been heard of for seven- teen years and being then an infant, her share was divided amongst the other heirs of the wife, upon thetr executing bonds payable to the judge and his successors in office, with condition to indemnify the executrix of the husban4 against the cMm of the absent heir. Ibid.. 15. A creditor of a deceased debtor may proceed by foreign attachment against the heir residing abroad, to subject land or its proceeds in the State,, descended to them from the debtor. Carrington et als v. Bidixr, Norvell & Co., 8 Grat. 260. 16. So he may proceed against them as absent defendants In equity to marshal the assets and thus subject the land descended to them. Ibid. 17. Heirs will be held liable in Virginia upon the debts and covenants of their ancestor binding the heirs, to the extent of real assets descended in another State, if by the laws of that State, they would be liable on such debts and covenants ; and a court of equity in Virginia may enforce the liability. Dickinson v. Hoomes' vtdm'r et ats, 8 Grat. 353. 18. Under the circumstances of this case the heirs held bound to ac- count for so much of the lands out of the State as they have actually got- ten, or may get possession of, with the rents and profits derived therefrom, deducting the costs and expenses of recovering the lands. Ibid. 19. In a proceeding to recover damages against the Upper Appomattox Company, under the 9th section of 23d February 1835 sess. acts p. 82, the jury having returned their repott ascertaining the damages, and com- pany having excepted to it and obtained a continuance, the plaintiff dies. The proceeding may be revived by the administrator, but not by the heirs. Upper Appomattox Company v. Mardinge, 11 Grat. 1. 20. Where an ancestor dies in possession of land, the presumption of law is that the heir is in possession after the death of the ancester and in the absence of all evidence on the point, the heir may maintain ejectment upon the strength of his possession, against any one who has entered upon the land without title, or authority to enter under a title outstanding in another. Tapacott v. Cobbs et als, 11 Grat 172. HORSE STEALING.— HUSBAND AND WIFE. 185 HORSE STEALING. 1. The act 1819. 1 Rev. Code, oh. 152 p. 575, in relation to horse steal- ing, is repealed by the act the 14th March 1848, ch. 4 ? 15. Lathrop's ease, 6 Grat. 671. 2. Horse stealing is now punishable only as grand larceny. Ibid. frr>« HUSBAND AND "WIFE. 1. A conveyance by husband and wife of the wife's real estate to a third person, for the purpose of having the same conveyed to the husband and thus transferring the estate to him, is valid. Shepperson v. Shepperson et ak, 2 Grat. 501. 2. Ohoses in action and other property to which the wife becomes enti- tled during the coverture, are liable to the claims of the creditors of the husband, and a settlement thereof upon the wife with the assent of the husband before being reduced into possession, will not protect -such choses or other property from such creditors' claims. Dold's trustees v. Geiger's adm'.r, 2 Grat. 98. 3. The interest and profits arising from property and choses in action, to which the wife, who lives with her husband, and is supported by him, be- comes entitled during the coverture, belong to the husband, free from the equity of the wife to a settlement. Ibid. 4. The rents and profits of real estate held in actual possession by a coparcener with the wife, belong absolutely to the Iwisband, and he may maintain an action for them, without joining his wife. Ibid. 5. Husband and wife convey the equity of redemption in her land to a ttiistee to sell the same for the use and benefit of the grantors. 1. This is a conversion of the land into personalty. 2. The husband may, in the lifetime of the wife, dispose of the trust property. 3. The husband sur- viving the wife, the whole trust property, whether land unsold or the pro- ceeds of the laud, belong to him. Siter, Price & Co. y.McClanaTian, el als, 2. Grat. 280. 6. The act authorizing the courts of chancery to restore to the injured party divorced, as far as practicable, the rights of property conferred by the marriage, does not a£fect the vested rights of creditors or bona fide alienees or incumbrancers, which attached upon the property, prior to the institution of proceedings for a divorce ; and when the property was the absolute property of the husband. Jennings et als v. Montague, 2 Grat. 350. 7. An attachment against the effects of the husband as an absconding debtor, levied before the institution of a suit by the wife for a divorce, en- titles the attaching creditors to be satisfied out of the attached effects, 186 HUSBAND AND WIFE. in preference to the wife, claiming t'he effects as property brought by her to her husband on the marriage. Ibid. 8: A deed by a, feme, in contemplation of marriage, conveys her property in trust, with intent that it shall be secured from the husband's creditors ; he being notoriously insolvent. The court will so construe the deed, consis- tently with its terms, as will give eflfect to the leading intent of the parties. Perkins' trusi^y. Dickinson da Co., 3 Grat. 335. 9. A guardian and administratrix, who has executed official bonds, makes a settlement with the husbapd of her ward and the distributee and executes her bond to the husband, for the amount found due on the settle- ment. The husband afterwards dies, leaving his wife surviving, and the bond remaining unpaid. Qucere: If this is a reduction of the chose in ac- tion of the wife into possession by the husband, so that his administrator will be entitled to the debt ; or whether it survives to the wife. (The court, consisting of four judges equally divided upon the question.) Yerby and wife v. Lynch el als, 3 Grat. 460. 10. A benefit which is secured to a husband, to be enjoyed jointly vrith his wife and children, cannot be subjected by the creditors of the husband. Perkins's trustee v. Dickinson & Co., 3 Grat. 335. Mundy v. Vawter et als, id. 518. 11. A chose in action is bequeathed to A. for life and remainder to B. the wife of C. A. and C. unite in a voluntary assignment of the chose to D. C. survives A., and before the chose is reduced into possession by D., C. dies, leaving his wife surviving him. The wife is entitled to the chose. Hayes v- Ewell's adm'r et als, 4 Grat. 11. 12. Qucere: If a wife joining with her husband in a conveyance of land as his land, thereby divests herself of her own equitable interest therein. Eeth et als v. Richmond and Fredericksburg R. R. Co., 4 Grat. 482, 13. Husband and wife have each an equitable title to one moiety of a tract of land and a patent issues to husband and wife for the land. Under the patent each took the entirety of the tract, with the chance of excluding by survivorship the heirs of the other. Norman's e^or v. Cunningham and wife et als, 5 Grat. 63. ^ 14. Though the legal estate of the whole tract vested in the husband sur- viving, yet the wife's equitable estate, in an undivided moiety descended to her heirs, subject to the husband's life estate. Ibid. 15. It was not competent for the husband, by any act of his, to divest the equitable estate of his wife, and vest it in himself, either absolutely or contingently. Ibid. 16. The husband held the legal title to the undivided moiety of his wife, in trust for her heirs. Ibid. HUSBAND AND WIFE. 18^ 17. The husband having sold the land to bona fde purchasers, without notice, equity -will compensate the heirs of the wife out of the estate of the husband. Ibid. 18. Quaere : Is the measure of compensation, the value at the time of the sale, or at the death of the husband, excluding permanent improve- ments on the land, made since the sale. Ibid. 19. The heirs of the wife are not precluded from claiming the land, by their taking under the will of the husband. Ibid. 20. A deed by husband and wife, executed under a power of attorney, is the deed of the husband, though it is void as to her. Shanks ei als v. Lan- caster, 5 Grat. 110. 21. A wife having a power of appointment over land, to be executed by writing under her hand and seal, or by last will and testament, her deed, by which she relinquishes her right in the land, for value, will destroy her power of appointment, though she is not privily examined. Hume v. Hard et als, 5 Grat. 374. 22. The wife having the right to give the land to whom she pleases, by the execution of the power of appointment, she has also the right, for value, and with the assent of all persons interested in the land, to destroy the power by the same means. Ibid. The certificate of the clerk that a deed was acknowledged in court by husband and wife, and ordered to be recorded, is not sufficient to make it her deed. Healy et als v. Bowan et als, 5 Grat. 414. 24. A marriage within the prohibited degrees having, been declared null by a sentence of the court, the husband has no interest in property which was the wife's at the time of the marriage ; and his creditors can- not subject it to the payment of his debts. Kelly v. Scott, 5 Grat. 479. 25. Husband during the life of his wife, takes the benefit of the act for the relief of insolvent debtors and surrenders and conveys to the sheriff his inteiest in his wife's real estate. The sheriff sells and conveys said interest to the purchaser. The purchaser is a tenant for life, and may be sued in an action of waste by the husband -and wife. Dejarnette y. Allen and wife, 5 Grat. 499. 26. A joint action of assault and battery lies against husband and wife for an assault committed jointly by both. Roadcap and wife v. Sipe, 6 Grat. 213. 27. In such an action against husband and wife for a joint assault, there may be a verdict and judgment against the one and in favor of the other. Ibid. 188 HUSBAND AND WIFE. 2«. A deed executed by a woman, a few days before her marriage, to secure a debt due to her daughter by' a former marriage, held to be valid against the husband. FUtclier and wife v. Ashley et ah, 6 Grat. 332. 29. A conveyance by a husband, by which he parts absolutely with an interest in personal property, though it is not to take effect in possession until his death, and though he reserves the power to sell and re-invest or account, and also the power to re-appoint among specified objects is valid to bar the wife of her distributable share therein. Gentry el als v. Bailey, 6 Grat. 594. 30. Where a wife acts in furtherance of a combination to commit a felony, in the presence of her husband, she will be presumed to have acted under his coercion. But if the circumstances show that she was not act- ing under coercion, but of her own free will, she is accountable for her own acts. TJhl et als' ease, 6 Grat. 706. 31. Husband sells wife's remainder in slaves for value, and dies leaving his wife surviving him, before the life tenant. The wife is entitled to the slaves as against the purchaser from the husband. Moore v. Thornton et aU, 7 Grat. 99. 32. Though the purchaser buys the interest of the life tenant also, yet if the husband dies leaving the wife surviving him, she is entitled. Ibid. 33. There being a charge upon the property of the wife, a part of which is in possession and sold so as to vest in the purchaser, the charge must be borne ratably by the purchaser and the wife. Ibid. 34. The husband of a legatee of a life interest, which terminates by the death of the legatee, before a decree to subject them for a devastavit of their testator, is not liable for the life estate so terminated. Sheldon et als V. Armisiead's ad'mr, 7 Grat. 264. 35. A postnuptial settlement made by a husband on his wife, of per- sonal property derived from her father's estate, but of which he retains the possession, not having been properly recorded, is void as against the creditors of husband. Lewis et als v. Carpenter's ex'or et als, 8 Grat. 148. 36. A deed made by a husband, embarrassed at the time, by which he conveys the proceeds of his wife's land which had been sold, and the note for the purchase money made to him, in trust for himself and wife for their lives and the life of the survivor, and during his life to be under his control and management, is fraudulent and Voluntary as to his creditors. Ibid. 37. The declaration of the wife at the time she executes a deed, or at other times, that she has executed or does execute the deed, because her husband had promised he would settle, or because he had settled upon her certain property derived from her father's estate, is not sufficient evidence HUSBAND AND WIFE. 189 of a contract between them for such a settlement, in consideration of her relinquishment of her right of dower in her husband's lands ; and thus to support such a settlement, if made, against creditors and incumbrancers, even to the extent of a reasonable compensation for the right of dower which she relinquished. Ibid. 38. QucBre: If the wife's relinquishment of her contingent right of dower in land, where there is no complete alienation of the estate by the husband, but a mere incumbrance for the security of a debt, constitutes a sufficient consideration for a settlement on the wife. Ibid. 39. Qucere : If the certificate of the privy examination of a feme covert, made under the act of 1792, which purports in the body to be under the seals of the justices, when in fact, no seals or scrolls are affixed to their names, is valid to bar the feme. Bryan v. Stump &c., 8 Grat. 241. 40. A wife's interest in her father's estate, in the hands of the executor, may be subjected by a creditor of the husband by a proceeding by for- eign attachment, where the husband resides out of the State. Yance v. McLa/ugUin's adm'r, 8 Grat. 289. 41. Though the service of the process upon the executor creates a lien upon the wife's interest, in favor of the creditor, yet if the husband dies pending the proceedings, leaving the wife surviving him, the lien of the creditor is defeated and the property belongs to the wife. Ibid. ' 42. The rights of the husband to the property of his intended wife may be intercepted by his agreement to that efTect ; and where by express con- tract before and in contemplation of marriage, for which the marriage is sufficient consideration, he agrees to surrender his right to the enjoyment of the property during the coverture, and his right to take as survivor, there remains nothing to which his marital rights can attach, during the covertuje or after the death of his wife. In such case, the wife is to be regarded to all intents as a. feme sole in respect to such property and there is no necessity that the marriage contract or settlement should limit the property to her next of kin upon her failure to appoint ; but it will pass, as if the wife died sole and intestate. Charles y. Charles, 8 Grat. 486. 43. If the husband has relinquished his marital rights to his wife's pro- perty, he is not entitled to administration upon her estate. Ibid. 44. Property conveyed in trust by a husband, for himself and wife, by deed not duly recorded, is sold under a decree at their suit against the trustees, and conveyed by -deed duly recorded. It is a valid sale against a creditor of the husband, subsequent to the deed. Olazebrook's adm'r v. Ragland, 8 Grat. 832. 45. Upon a joint indictment against husband and wife for selling ardent spirits, if they are convicted, there must be judgment for a separate fine against each. Hamor and wife's case, 8 Grat. 698. 190 HUSBAND AND WIFE. 46. In a case of JiMbeas corpus, to obtain possession of a child by a mother, the father being dead, the petition may be in the name of the mother and a second husband. Armstrong v. Stone and wife, 9 Grat. 102- 47. In order that marriage may form a sufficient consideration to pro- tect a voluntary conveyance against credi^rs, the marriage must take place before the creditors obtain a judgment. Fones v. Bice et als, 9 Grat. 568. 48. A father in consideration of affection and of one dollar paid hfin by herself and husband, conveys to his daughter for the use of herself and her husband and their joint heirs, several slaves ; to have and to hold the slaves to the daughter and her husband and their heirs &c. ; and he •warrants the title to them. The deed conveys to the daughter and her husband a joint estate; and the husband may dispose of the slaves. Cle- land V. Watson, 10 Grat. 150. 49. A deed from a husband to his wife, conveying to her all his property, real and personal, under circumstances showing a strong meritorious con- sideration, set up in equity against a nephew, the heir at law of the grantor. Jones and wife v. Obenchain et als, 10 Grat. 259. 50. A husband is not a competent subscribing witness to a deed by which real es^tate is conveyed to his wife, during the marriage, either for the purpose of proving due execution of the deed, when called in question, or for the purpose of having it recorded. Johnston and wife v. Slater et als, 11 Grat. 321. 51. By an agreement in contemplation of marriage, the intended hus- band bound his estate to pay the intended wife certain sums of money, if she survived him ; which were to be in bar of, and in full consideration for her dower. This agreement barred her of dower in her husband's real estate ; but does not deprive her of her distributable share of his personal estate. Findley's cx'or v. Findley. 11 Grat. 434. 52. The widow, having renounced the will, is not entitled to take under it, the property bequeathed to her ; but it is to be applied to compensate the legatees who were disappointed by her taking her distributable share of the personal estate. Ihid. 53. The widow having received from the executors two bonds of her son by a former marriage, which he had executed to her husband, in part sat- isfaction of what was due to her under the marriage agreement, and hav- ing given them a receipt for the amount, it is a valid payment to her to that extent. Ihid. ' 54. "When the statute of limitations runs against a feme covert and her husband, so as to bar a recovery during the coverture. Oaperton et als T. Gregory, 11 Grat. 605. INDEMNIFYING BOND.— INDENTURES. 191 See Marriage Settlement ; Deeds ; Waste ; Dower. INDEMNIFYING BOND. 1. One indemnifying bond may be taien on several executions. Davis V. Davis, 2 Grat. 363. 2. It is not necessary to set out the executions in an indemnifying bond Ibid. 8. A firm being plaintiff in the execution, the bond, executed by one of the firm in the partnership name, is a good bond of the party so executing it. Ibid. 4. The reciting the names of the plaintiffs in the execution by their partnership name is sufficient. Ibid. 5. In an action on an indemnifying bond, the relator claiims title to the property sold, under a sale by deed, made by one partner, without the knowledge or consent of the other, of partnership property. The relator may recover for the undivided interest of the partner who made the sale, under a general allegation in the declaration of his ownership of the pro- perty. Forkner Y. Stuart &c., 6 Grat. 197. INDENTURES. See Apprentices. INDICTMENT, INFORMATION, AND PRESENTMENTS. 1. In an indictment for selling ardent spirits to slaves, it is not necessary to state the names of the owners of the slaves, to whom the liquor was sold. Smith and BurwelVs case, 1 Grat. 553. 2. In an indictment against the overseer of a road, for not keeping it in repair, it is not necessary to allege that the county court had not by an order, entered of record, authorized a less width than thirty feet. How- ard's case, 1 Grat. 555. 3. Defective indictment for perjury, quashed upon demurrer. Roach's case, 1 Grat. 561. 4. An in,dictment for puijury, in swearing to an answer, should set forth the whole bill and answer. Lodge's case, 2 Grat. 579. 192 INDICTMENT, INFOBMATION, AND PKESBNTMENTS. 5. An indictment for removing a slave to another county, Vfith intent to defraud the owner and deprive him of his property, is fatally defective, even after verdict, in omitting to charge that it was without the consent of the owner. Pea's case, 2 Grat. 629. 6. The act of Jeofails of 1804, examined and explained by Lomax, Judge. Ihid. 7. An indictment against a jailor for permitting a prisoner, in his cus- tody, to have an instrument in his room with which he might break the jail and escape, and for failing carefully to examine, at short intervals the condition of the jail and what the prisoner was engaged at in said jail, in consequence of which the prisoner escaped, does not state an in- dictable offence. Connell's case, 3 Grat. 587. 8. An information under the 3d section of the act March 3d 1840, in relation to the sale of spirituous liquors, must contain an averment that the person selling had not a license to sell spirituous liquors. Hampton's case, 3 Grat. 590. 9. An indictment upon a statute must state all the circumstances which constitute the definition of the offence in the act, so as to bring the defen- dant precisely within it. Ibid. 10. If an indictment for felony includes offences for which the prisoner has not been tried, and sent on by the examining court for further trial, it is error and the court should, upon the motion of the prisoner, quash the counts of the indictment which charge these offences. Clere's case, 3 Grat. 615. 11. The common law rule that one good count in an indictment will sus- tain a general verdict of guilty, is overruled in Virginia, as to penitenti- ary offences. Ibid. 12. An indictment for murder states that the mortal wound was inflicted on the 7th November, 1845, that the deceased languished until the 8th November in the year afosesaid, and then says, " on which said 8th of May in the year aforesaid the deceased died." The prisoner pleads not guilty. Held : that the insertion of May for November is a mistake appa- rent on the face of the indictment and will not exclude proof of the death subsequent to the 7th of November or be cause for arresting the judgment. Ailstoch's case, 3 Grat. p50. 13. A presentment for unlawful gaming by playing at cards, and betting on the sides and hands of those that then and there did play, ia not objeo- tionable on the ground of duplicity. Tieman's case, 4 Grat. 545. 14. Aij indictment is defective for omJtting the conclusion "against th« peace and dignity of the Commonwealth." Carney's case, 4 Grat. 546. INDICTMENTS— INFORiyTATIONS, &c. 193 INDICTMENTS— INFORMATIONS AND PRESENTMENTS. 15. In a proper case the Court may permit an information to be amended after a demurrer thereto ; but this should not be done where the facts charged in the presentment, on which the information is founded, do not amount to a misdemeanor. Matthew Williamson's case, 4 Grat. 554. 16. An indictment which charges that defendant knowingly and wilfully removed a fence from the land of P., and did injure and expose the growing crop then on said land, charges but one offence, and is valid. Rat- cliffe's case, 5 Grat. 657. 17. In indictments for statutory offences the language of the statute defining the offence, should be strictly followed. Bowel's case, 5 Grat. 664. 18. In an indictment under 1 4, ch. 160, 1 Rev. Code, p. 587, it is not suffi- cient to use the words " set fire to " the house; but the word " burn " must be used ; that being the word enipldyed in that section of the act to define the offence. Ihid. 19. An indictment for selling ardent spirits without a license may charge the sale to two persons. Peer's case, 5 Grat. 674. < « 20. A count under § 17 act March 7, Sess. Acts, 1834, p. 7, and a count under §3 of the same act, may be joined in the same indictment. Ihid. 21. Although the terms of the act are, " license and certificate," yet if the indictment allege the sale without license, omitting the words " and certificate," the indictment is good upon demurrer. Ibid. 22. A proviso in a statute must be insisted on for purposes of defence by the defendant, but; where there are exceptions in the enacting part of the law, it must be charged that the defendant does not come within any of them. Hill's case, 5 Grat. 682. ^ 23. It is not necessary to notice in an indictment the provisos of a statute, although the purview should expressly notice them. Ihid. 24. An indictment under ? 3, ch. 2, Sess. Acts, 1839-40 is good, though it does not negative the exceptions contained in the provisos, in ^ 4 of s^iid act. Ihid. 25. A wrong name, inserted in an indictment for misdemeanor, cannot be amended by the insertion of the right name, though the record of the Court and the endorsement on the indictment show the right name. Buz- zard's case, 5 Grat. 694. 26. An indictment under the statute, 1 Rev. Code, ch. Ill, ? 13, p^424, for allowing more than five slaves to be and remain at one time on the de- fendant's premises, need not charge that it was without the consent of the owners of the slave. Foster's case, 5 Grat. 695. 194 INDICTMENTS— INFORMATIONS, &c. 27. An indictment for that, H. without haying a license therefor, accord- ing to law did on, &c., at &c., in said county sell hy retail, wine, &c, not to be drank where sold, against the peace and dignity of the Common- wealth, is a good indictment. Hatcher's case, 6 Grat. 667. 28. An indictment quashed, because a grand-juror was not a freeholder, is not a sufficient foundation for a rule against the party to show cause why an information should not be filed against him. Ayre's case, 6 Grat. 668. 29. An indictment for an attempt to commit an offence, ought to charge some act done by the defendant of such a nature as to constitute an attempt to commit the offence. Clark's case, 6 Grat. 675. 30. Motions to quash indictments and informations should not be en- couraged, and that mode of proceeding is not to be extended further than is authorized by the cases ; but a party should be left to his demurrer, motion in arrest of judgment, or writ of error. Litton's case, 6 Grat. 691. Lodge's case, id., 699. 31. On an information for perjury, the attorney for the Commonwealth allowed to amend the information in accordance with the presentment on which it is founded, after the appearance of the defendant and motion by him to quash the information. Lodge's case, 6 Grat. 699. 32. Form of indictment, for attempting to burn a barn, under |]2, ch. 11, Sess. Acts 1848, sustained by Court of Appeals. VM et al's. case, 6 Grat. 706. 33. In an indictment for lewd and lascivious cohabitation, the offence is charged from a day prior to that on which the statute punishing the offence went into operation, but as continuing to a day after the commecce- ment of the act. The indictment is good. Nichols and James' case, 7 Grat. 589. 34. In an indictment for retailing ardent spirits without a license, to be drank where sold, it is not error to use the word " or," in speaking of the various kinds of spirituous liquors charged to have been sold. Morgan's case, 7 Grat. 592. 35. Two persons may be jointly indicted or proceeded against by infoi^ mation, for retailing ardent spirits without a license. Harris and Hick- man's case, 7 Grat. 600, 36. An indictment for arson, according to the form at common law, which omits to allege whether the act was committed in the day or night time, is sufficient for a case of arson, in which the jury find a verdict that the offence was committed in the day time. Curran's case, 7 Grat. 619. 37. For the offence of burning at night, it seems that the indictment must charge a burning in the .night time. Ihid. t INDICTMENTS— INFORMATIONS &c. 195 38. The attorney for the Commonwealth, may liave a i-ule against a defen- dant to show cauae why an information should not be filed against him, though at a previous, term the defendant had been summoned in answer the presentment, which was defective because of the omission of the words, " againlit the peace and dignity of the Commonwealth of Virginia ;" and the Court should not after the filing of the information quash the presentment because of this defect. Christian's case, 7 Grat. 631. 39. The issuing process against the defendant to answer the presentment at a previous term, furnishes no reason against granting leave to file an iilformation at a subsequent term. Ihid. 40. In an indictment for the forgery of a negotiable note, it is not neces- sary to set out the endorsements upon it. Perkins' case, 7 Grat. 651. 41. In an indictment for malaoious trespass, it is not error to omit the words of the statute, " but not feloniously," these words not constituting any part of the description or definition of the ofience. Dye's case, 7 Grat. 662. I 42. An indictment having been quashed upon a demurrer to a defective replication to a plea, another indictment may be found for the same off'ence without another trial before the examining Court. ' Souther's case, 7 Grat. 673. 43. Quceve: If the statement in the commencement of an indictment, of the name of the Court and of the term at which the indictment is found, is not surplusage. If not surplusage, it is useless. Bell's case, S Grat. 600. 44. When the indictment in the caption names one county, and in the body speaks of the prisoner as Of another county, the charging the offence to have been committed " in the county aforesaid" is error ; it not being alleged with suflicient certainty that the ofience was committed in the county in which the indictment was found. Ibid. 45. An indictment for perjury must show that the evidence which the defendant gave was material; and therefore if the evidence which thg de-. fendant gave before the grand-jury is not shown clearly on the face of the indictment, to relate to an offence committed within the county, the indict" ment is defective. Pickering's case, 8 Grat. 628. 46. What allegations constitute a good indictment for attempting to com- mit a felony. Nutter's case, 8 Grat. 699. ^ 47. In a prosecution under the Act, Code ch. 199, g 25,' p. 752, in order to subject a prisoner to the additional imprisonment prescribed, upon a, second conviction for a felony, the indictment must set out the time and place of the first conviction, and must also allege that the prisoner's convic- tion was for an offence committed before the commission of that for which the prisoner is on trial. Band's case, 9 (Jrat. 738. 196 INDICTMENTS— INFORMATIONS &c. 48. Qucere: Whether eacli. count in the indictment must set out, the former conviction, or whether one statement of that fact may be made ap- plicable to all the counts. Ibid. 49. In criminal proceeding, the same defects or imperfections of fcirm may be taken advantage of on a general, as on a special demurrer. La- zier's case, 10 Grat. 708. 50. In an indictment for murder, there are two counts, in the second of which the offence is not set out aa another offence. This is not error.* Ibid. 51. An indictment for murder charges the wound to have been inflicted on the 9th of December, and goes on to allege that the deceased died of said wound on " the aforesaid 14th of December." The word "aforesaid" is surplusage, and its insertion is not a fatal defect. Ibid. 52. In an indictment for murder, it is not necessary to set out the length or breadth of the wound.* Ibid. 53. It is not error in an indictment, that dates are set out in figures in- stead of in words. Ibid. & Cady's case, id., 776. 54. A presentment for selling ardent spirits to be drank at the place where sold, without having first obtained a license to keep an ordinary, de- scribes the defendant as a free negro. This description is surplusage, Scott's case, 10 Grat. 749. 55. On a prosecution for uttering and attempting to employ as true, a forged note, purporting to be the note of a bank in another State, it is sur- plusage to state that the bank was authorized by the laws of that State ; and need not be proved. Cady's case, 10 Grat. 776. 56. An indictment for selling by retail, ardent spirits, to be drank where sold, must set out the place in the county where the sale is made. It is not sufficient to allege that the sale was made in the county. Head's case, 11 Grat. 819. 57. The words "to the prejudice of another's right" in the Code, oh. 193 1 5, p. 733, in relation to forgeries are descriptive not of the offence, but of the writings, of which forgery may be committed ; and it is not, therefore, necessary that they shall be inserted in the indictment in de- scribing the offence; Powell's case, 822. 58. The maker of a negotiable note passes it to the payee, with the name of a third person endorsed upon it ; which name he forged. The forging of the name endorsed upon the paper constitutes the offence of forgery. Ibid. ' See Code, p. 770, § 10. INFANTS. 197 59. The desnription of the writing in the indictment, as the endorsement of the person whose name is forged, will not vitiate the indictment, though the simulated liability may not be that of a technical eiidorser, bvit of a different character. Ihid. See Criminal Jhrisdiction and Proceedings. INFANTS. 1. At common law an infant may make a contract of enlistment in, the United States Army, which will bind him, without the consent of his parent or guardian. United States v. Bldkeney, 3 Grat. 405. 2. Under the act May 13th 1846, for the prosecution of the war with Mexico, an infant who enlisted in one of the c- mpanies of volunteers, au- thorized by that act, without the consent of his father, is bound by hie con- tract. Ihid. 3. Same principles decided as the case above. United States v. Lipscomb, 4 Grat. 41. 4. Marriage articles between an infant feme and her intended husband, beneficial to- her aind her contemplated issue, are obligatory upon both parties, and will be enforced in a Court of Equity by a settlement in con- formity therewith on the application of the issue of the marriage. Eealy et als. V. Rowan et als., 5 Grat. 414. 5. Marriage articles entered into between guardians of an infant feme and her int.ended husband, to which she is not a party, are of no obligatory force upon-^her. Ibid. 6. An infant yeme may, after she obtains her full age, and when sui juris, adopt and ratify a marriage agreement made for her by her guardians. Ibid. 7. A second guardian of an infant has no authority to file a bill in his own name, against a former guardian for an account of his transactions in relation to the wards estate. Lemon, guardian v. Hans- larger, 6 Grat. 301. 8. An infant may by his next friend, call the acting guardian or any pre- ceding guardian to account, by a bill in Chancery ; but the bill must be in his own name by his next friei.d. Ibid. 9. Equity has power to sell infant's lands unless the testator has express- ly prohibited a sale. Talley et als. v. Starke's adm'r et als., 6 Grat.' 339. 10. In such a case a guardian ad litem may be appointed at rules. Ibid. 198 INFANTS. 11 . It is not necessary in a decree for the sale of the land to direct that the guardian shall give security under 1 20, of the act 1. Rev. Code, chap. 108, p. 409-10. Ibid* 12. The mother of a child, whose father is dead, is p^ma facie entitled toits custody, and a habeas corpus for the possession of the infant may be sued out, either by the infant or by his next friend, or by the party claim- ing the possession. Armstrong v. Stone and wife, 9 Grat. 102. ■, 13. The right of the mother in such a case is not affected by a second marriage, and she may sue out a habeas corpus for the infant in the name of her husband and herself, but the Court has a right, in the exercise of its discretion, to say -whether the child shall be confided to her custody. Ihid. 14. The actl Rev. Code, 1819, ch. 19, I 20, Sup. R. C, ch. 149, J 2, autho- rizing the sale of lands, where the interest of each, joint-owner is less than $300, refers to ,the estimated value of each interest if the land is divided, and not the value of each interest in the estimated value of the whole. .Parker el als. v. McCoy, ei als., 10 Grat. 594. 15.' If the value of each interest in the land, when divided in kind, is less than |300, the Court has authority, under the statute, to sell the land, though the estimated value of the whole land, will give to each owner more ,than $300. Ibid. 16. The land in possession of a widow for life, as her dower, need not be estimated in ascertaining the value of the infant's interest in the lands, but the land in possession of the infants may be valued, and if of less value than 8300, to each, may be sold without selling the land in possession of the widow. Ibid. 17. It is not necessary to summon the infant owners in a proceeding to sell their land under this statute, but the Court may appoint a guardian ad litem to defend them. Ibid. > 18. In the proceeding under this statute, the order or decree of the Court is conclusive upon the infant ; and he has no day in Court to show cause against it, upon his coming of age. Ibid. 10. Though the final decree in the proceedings gives the infant a day in Court, upon the coming of age, this will not entitle him as against a bona fide purchaser of the land under a decree of the Court, to disturb the sale. Ibid. ^ 20. Though the proceeding under this statute may be, and usually is, by bill, it is nut necessarily so, but may be by petition or motion ; and the parties being summoned, the evidence may be heard in Court and the ne- cessary orders and proceedings may be had therein. Ibid. * See Code, ch. 128, { 7, p. 536 1 Acts '52-3, p. 50, and Acts 1850, p. 13. INJUNCTIONS. 199 21. Though the defendant was an infant at the time a suit was instituted against her, yet if she did not set up her infancy to defeat the action^ and it may be reasonably inferred from the evidence, that she was of full age when the cause was tried, and she appeared and defended herself by coun- sel, she is bound by the" judgment. B. Staton v. Pitman, sh'ff., 11 Grat. 99. 22. The statute of limitations applying to lands west of the Alleghany Mountains,* construed as to the rights of infants. Caperton et ala. v. Gre- gory et als., 11 Grat. 505. See Gtjardian and Ward. INJUNCTIONS. 1. A person having borrowed money on ujsuriou^ interest, procures the bond of a third person, which he transfers to his creditor in part discharge of the usurious debt, and executes his own bond for the same amount, with a deed of trust to secure it. Afterwards the usury creditor requiring the payment of the bond transferred to him, the obligor in that bond directs a sale of the trust property. Equity will enjoin him from such proceeding ; and if the usurious creditor attempts to enforce the payment of the bond trans- ferred to him, will enjoin him from such proceeding. Oahaness v. Matthews et als., 2 Grat. 325. 2. The fraud of a maker of a note, by which he induces his surety to sign it, of which the payee has no knowledge, does not entitle the surety to relief against the innocent payee or holder. ' Griffith et als. v. Reynolds, 4 Grat. 46. 3. A testator died leaving a widow surviving him ; by his will, he devised a moiety of certain lands to J. B. who sold his interest for |1000. There being an after-born child, and the widow's dower being unequally assigned in other lands, and suit brought for the child's portion, and to have the widow's dower re-assigned, the purchaser of J. B.'s interest may, enjoin the collection of the purchase money, until the extent of the incumbrances are ascertained. Price v. Browning, 4. Grat. 68. 4. Ten per cent, damages are not to be allowed during the pendency of an appeal against the decree of the Court below dissolving an injunction. Jeter v. Langhorne, 5 Grat, 193. 5. On a bill filed to enjoin a judgment on the ground that the debt on which it was founded, was for money won at cards, it beiiig doubtful, on the evidence, whether such was the consideration, or, if it was, whether the plaintiff in the judgment had not been induced by the concealment or » Sess. Acts, 1836-7, p. 11, § 10. 200 INJUNCTIONS. misrepresentation of the debtor to take a transfer of the debt, the Court should continue the injunction and direct an issue to ascertain the facts. Nelson's adm'r v. Armstrong et als., 5 Grat. 354. 6. A judgment at law enjoined, on the ground of mistake of the jury, ascertained by after discovered evidence. Bush et als. v. Ware, 6 Grat. 50. 7. Upon a motion to dissolve an injunction, before answer of the defend- ant, all the allegations of the bill must be taken as true. Peatross v. McLaughlin, 6 Grat. 64. 8. A judgment debtor having obtained his discharge as a bankrupt, sub- sequent to a judgment, may enjoin the suing out or levying of any execu- tion on said j udgment. Ibid. 9. Where an administrator, with the will annexed, resorts to equity to establish and enforce claims against his testator's estate, and to set aside conveyances made by him, he places his whole trust and authority under control of the Court, and he will be restrained by injunction from proceed- ing to sell the real estate before there is an adjudication of the matters in controversy between himself and the devisee or legatee. Watson v. Fletcher, 7 Grat. 1. 10. When the title to land is clearly defective as to part, the purchaser may enjoin the collection of bonds assigned in payment of the purchase money. Clarke v. Eardgrove, &c., 7 Grat. 399. 11. An injunction to a judgment at law, not showing equity on its face, dissolved, without answer, as improvidently awarded. Slack v. Wood, 9 Grat. 40. 12. Pending a bill for an injunction to a judgment, and for a rescision of a contract for the purchase of land, on the ground of an incumbrance and defect of title, the vendor removes the incumbrance and procures the title. The injunction is properly dissolved, but without damages, and with costs to the plaintiff. Young's adm'r v. McGlung, et als., 9 Grat. 336. 13. But if vendee might have obtained relief by supplemental bill or petition in another pending suit, he shall not have costs. Ibid. 14. In an action at law, the defendant is prevented by unavoidable acci- dent from making defence and setting up offsets which he held against the plaintiff, these offsets being in no way connected with the debts sued upon ; he has however a plain remedy at law or in equity for the recovery of his claims. He is not, in equity, entitled to enjoin the judgment, and set up his offsets against it ; but must pursue his remedy for their recovery. Hudson V. Klkie 9 Grat. 379. 15. A purchaser of land coming into Court of Equity, to enjoin a judg- ment for the purchase money on the ground of defect in the title, though INJUNCTIONS. " 201 the title is afterwards perfected, is entitled to his costs, and the injunction is to be dissolved without damages. Beeves v. Dickey. 10 Grat. 138. Jaynes et al. v. Brock, id. 211. 16. An injunction refused by a judge of a Circuit Court, is presented to a judge of the Court of Appeals, who also refuses it, it may be'granted by another judge of the Court of Appeals. Jaynes et al v. Brock, 10 Grat. 211. 17. A party claiming that he has not been credited for all money paid by him to the sheriff on an execution, may have any injustice done him cor- rected by the Court, from whence the execution issued ; and it is not a case for an injunction and relief in equity. Morrison v. S-peer, 10 Grat. 228. 18. Process in a foreign attachment is served upon a garnishee having property of the absent debtor in his hands ; and afterwards other creditors sue out attachments at law against the same party as an absconding debtor, which'are served upon the same garnishee ; and before the foreign attach- ment is ready for a hearing, they obtain judgment and an order for the sale of the property in the hands of the garnishee. The plaintiff in the foreign attachment may amend his bill and enjoin the sale. Moore et ah. V. Eolt, 10 Grat. 284. 19. Though the owner of lauds has the legal title and may maintain trespass, yet equity has jurisdiction, and may enjoin another party who claims the lands from taking iron ore from it. Anderson v. Harvey's heirs, 10 Grat. 386. I 20. An injunction to a judgment at law will not be sustained, to allow the defendant at law to set up payments or set-offs, which he might have pleaded at law ; and if a discovery was necessary to enable him to prove them, he should have filed his bill of discovery in aid of his defence at law • or he should have filed interrogatories to the plaintiff under the statute. George v. Strange's ex'or, 10 Grat. 499. 21. An injunction to a judgment at law will not be sustained where the defendant at law has failed to make his defence at law from ignorance of the nature of the proceeding against him, and a misapprehension of the steps necessary to be taken, in order to subject him. Meem v. Eucker, 10 Grat. 506. 22. The mere averment by a plaintiff, in his bill asking for an injunction to a judgment at law, of the facts constituting his excuse for not defending himself at law, is not sufficient. He must prove them. Ihid. 23. An injunction to inhibit the sale of property by trustees, is not a bar to their bringing an action at law to recover the trust property ; and even if they are guilty of a contempt that is to be redressed by the Court of Chancery acting upon the parties, and will not prevent the main- tenance of the action at law. Nichols v. Campbell, 10 Grat. 560. 202 INQUISITION. 24. W. made a verbal agreement to S. for the sale of a lob to him. S. sold to A., •who received a deed for the lot from ^Y. with general warranty and executed his bonds to S, for a balance of the purchase money, At the time of the sale to A,, the lot was made more valuable by a change in a street which was afterwards returned to its original location by the town authorities. S. having made no representation to A., having been guilty of no fraud and having made no warranty of title is not liable to A. for the damage he has sustaiued, and A. cannot enjoin the collection of the pur- chase money. Price's ex'ora v. Ayres, 10 Grat. 575. 25. The damages upon the dissolution of an injunction to a judgment, become, as to the party obtaining the injunction, a part of the judgment and embraced in the lien of the judgment. Michaux's adm'r v. Brown et als., 10 Grat. 612. 26. The pendency of an injunction to a judgment at law, will not pre- vent the revival of the judgment upon the death of either plaintiff or de- fendant ; and the injunction operates upon the judgment on the scire facias to restrain the issue of an execution thereon. Richardson's adm'r v. Prince George's justices, 11 Grat 190. Poindexter's adm'r v. Same, id. 27. A defendant in an execution files a bill to enjoin it, on the ground that a previous execution sued out on the same judgment had been levied by the sheriff on the property of another defendant in the execution suffi- cient to discharge it. In such a case the bill must be filed in the county where the judgment was removed, and the Circuit Coijrt of another county has no jurisdiction. Beckley v. Palmer et al., 11 Grat. 625. 28. In such a case it is not necessary that the objection to the jurisdic- tion shall be taken by demurrer or plea ; but it may be taken at the hearing of the cause. Ihid. 29. If in such case the plaintiff insists that the sheriff has misapplied the proceeds of the property levied on, or that a payment has been made to him, which has not been credited on the execution, if he had an opportu- nity to apply to the Court of Law from which the execution issued for redress, he has no right to come into a Court of Equity for relief. Ibid. See Equitable Jurisdiction and Relief. INQUISITION. 1. If a party applying for leave to build a mill owns the land on only one side of the stream, the proceedings should be under the 1st., 2d., and 3d. sections of ch. 235, 2 Rev. Code ; and if in such case he proceeds under the 4th section of the act, the Court should quash the writ and inquisition. Wkitworth and wife v. Puchett, 2 Grat. 528. INSOLVENT DEBTORS. 203 2. If it appears upon the hearing of the cause that a greater quantity of land of the adjoining proprietors will be overflowed by the erection of the dam, than the jury estimated, the Court should quash the inquisition and direct a new writ. Ibid. 3. Upon a motion to quash a writ and inquisition founded on a judgment at law, which motion is sustained, the writ and inquisition are apart of the record, though no bill of exceptions is taken, and will be so treated by an appellate Court. Wallop's adm'r v. Scarhurgh d als., 5 Grat. 1. 4. The motion to quash in such case must be in the name of and against a party to the record. Ibid. 5. A person who signed a petition to the legislature for the establishment of a ferry, is not thereby rendered incompetent to act on the jury of inquest. ^ Somerville v. Wimbush, 7 Grat. 205. 6. Upon an application to build a mill, where the requirements of the statute are substantially fulfilled in the inquisition it is suiEcient. Mairs V. Galla'lme, 9 Grat. 94. 7. If the petition or order of the Court, directing the writ of ad quod damnum, does not specify the height of the dam proposed to be erected, it is proper for the jury to specify it in the inquisition. Ibid. 8. The statute does not require the writ of ad quod damnum to be re- turned to the nest Court after it is awarded ; and if the order awarding it, so directs, the direction is merely directory to the ofBcer and his failure to make th^ return within the time prescribed will not affect the validity of the inquest properly taken. Ibid. INSOLVENT DEBTORS. 1. A Court Equity will at the suit of a creditor of an insolvent debtor, pursue property, the avails of his labor, in the hands of parties uniting with him to screen the same from his creditors ; or in the hands of volun- teer purchasers from them. Commonwealth v. Richs, <&C., 1 Grat. 416. 2. A sale by a sheriff of an equity of redemption in lands, surrendered by a debtor in execution, upon his taking the benefit of the act for the relief of insolvent debtors is legal. Tiffany v. Kent et als., 2 Grat. 231. 3. Quaere ; If a purchaser at such sale is not hound to pay the amount stated at the sale to be due upon the incumbrance. Ibid. - 4. Upon takng the oath of insolvency, all the property and rights of the insolvent debtor are vested in the sheriff, who as representing the creditor, is entitled to assert his legal and equitable rights and to set aside fradu- 204 • INSOLVENT DEBTORS. lent conveyances of the insolvent and recover the property for the benefit of the creditor. Clough (fee, v. Ihompson, 7 Grat. 26. 5. The law does not permit the sale of the goods, chattels and estate of an insolvent debtor in the possession of a third person, until the same shall have been recovered in the mode prescribed by the statute. Ibid. 6. The sheriff who is the trustee for all interested in the estate of an in- solvent debtor, is not justified in selling the interest of the debtor in the estate surrendered in the schedule or vested by law in the sheriff, when owing to alledged incunibrances, the validity of which is controverted, or the extent of which is uncertain, the property is not in condition to bring its full value. Ibid. 7. The real estate of an insolvent debtor vests in the sheriff of the county in which the land lies and a sale thereof by the sheriff of the county in which the oath of insolvency is taken by the debtor, unless the land lies in his county, is without authority and void. Ibid. 8. Debts due to the insolvent debtor, and slaves anli other personal proper- ty, not in possession of the sheriff, or in such a condition that he can- not take possession without process, can not be sold by him so as to vest the legal title in the purchaser. Ibid. 9. Where a variety of property is embraced in a schedule, a sale, not of the property specifically, but of the schedule itself, is a violation of duty on the part of the sheriff, and 'the purchaser at such sale, if he acquired the legal title, would in a Court of Equity, be treated as a trustee for the benefit of those interested. Ibid. 10. To a bill to set aside fraudulent conveyances, made by an insolvent debtor, the trustees, cesiuisque trust in the deed, the sheriffs of the counties in which the lands lie and the execution oreditoruS interested in the proper- ty should be parties. Ibid. 11. What arrangement of property by a debtor is fraudulent as to his creditors, so as to vest it in the sheriff upon the debtors taking the oath of insolvency. B. Staion v. Pittmann sheriff, 11 Grat. 99. PUtmannsheniffr. B. Staion id. , 12. Though the insolvent debtor never had possession of the property, but it was transferred by a fraudulent arrangement to a third person, the sheriff may recover the property from this third person. Ibid. 13. Testator gives his estate to executors for the benefit of his son, and whenever they deem it prudent, they are directed to turn it over to him. The executors having declared their judgment that the son may be entrust- ed with the estate equity will compel them to turn over the estate to him, and from the time of such declaration, the son has such an interest in the INSTRUCTIONS. 205 estate that it is subject to his debts, and the interest will vest in tliesheriff upon the sons taking the oath of insolvency. Cochran v. Parish et ah, 11 Grat. 348. INSTRUCTIONS. 1. It is error in the Court to instruct the jury on the sufficiency of the evidence to maintain the issue. M'Kinley sh'ff. v. Ensell et ah., 2 Grat. 333. 2. An instruction as to the sufficiency of evidence, upon a point which is immaterial, is no error for which an appellate Court will reverse a judg- ment. Pitman v. Breekenrictge and Crawford, 3 Gi;at. 127. 3. An exception to a part of a deposition does not designate the part ex- cepted to ; but it is brought to the notice of the Court and acted on by the Court, and read under an instruction applicable to it. The objection to the form of the exception does not arise. Charlton v. Vnis, 4 Grat. 68. 4. In a joint action of trespass against several, who plead jointly, and against whom the jury find a joint verdict, it is error in the Court to in- struct the jury that they may sever the damages, and assess respectively whatever in their opinion, each party found guilty ought to pay. Craw-\ ford V. Morris, 5 Grat. 90. 5. In such case the jury should assess against all who are found guilty the amount which they think the most guilty ought to pay, and therefore an instruction to the jury that they may sever the damages is not an error of which a defendant can complain in an appellate Court, though the plain- tiff may. Ibid. 6. An instruction given on one trial should not be brought before the jury on a second trial unless asked for by the party who wishes to use it. Ibid. 7. If a party be allowed to use it without asking for the instruction, the appellate Court will reverse the judgment, if the instruction was erroneous. Ibid. ^ 8. An erroneous instruction having been given in the Court below, the judgment' must be reversed and a new trial awarded, and the appellate Court can not consider whether the verdict and judgment are right, not- withstanding the instruction. Wihy et ah. v. Oivens et ah., 6 Grat. 277. 9. If there is any evidence before a jury tending to prove a case sup- posed, in an instruction asked for, and the instruction propounds the law correctly, it should be given. Hopkins, Brother de Co. v. Richardson, 9 Grat. 485. 206 INSTRUCTIONS. 10. An instruction which is not relevant to the evidence in the cause, or which is only relevant to written evidence which does not authorize it, and which it is the province of the Court to construe properly refused. John- son's ex'x V. Jennings' ddm'r, 10 Grat. 1. 11. In ejectment, the Court of Appeals having decided that certain evi- dence is insufficient to establish an adversary possession, upon a second trial, the evidence being substantially the same, the party, in whose favor the decision is, is entitled to have an instruction to the jury to disregard all the parol evidence introduced for the purpose of proving the adversary posses- sion. Pasley v. English, 10 Grat. 236. 12. The evidence of the adversary possession being to be disregarded, it is error to instruct the jury that if such evidence proves an adversary pos- session of twenty years, under claim of title, the party is entitled to recover. Hid. 13. If an instruction is given on an abstract question which may mislead the jury, it is an error for which the judgment will be reversed. Ibid. 14. An instruction given by the Court, which upon the statement of the evidence, given by the party excepting could not be injurious to him, is no ground for reversing the judgment. Calvin v. Mlnifee, 11 Grat. 87. 15. An exception, to the opinion of the Court refusing an instruction asked for, does not state the facts of the case so as to show its relevancy. The a)ppellate Court will not undertake to decide whether the Court below did right or wrong in refusing the instruction. Fitzhugh's ex'or v. G- Fiiz- hugh, 11 Grat. 300. 16. The Court may refuse to give an instruction, because it is so ob- scurely expressed as to leave doubt of the meaning intended. Levasser v. Washburn, 11 Grat. 572. 17. Upon a motion by plaintiif to instruct the jury to disregard all the, documentary evidence introduced by the defendant, of which some part is legal and other illegal, the Court may properly overrule the motion, with- out undertaking to state to the jury which is and which is not legal. Kiii- chelve v. Tracewdls, 11 Grat. 587. 18. The Court should refuse to give an instruction where it is obscure and calculated to mislead the jury, or where it asks the Court to decide upon a fact in issue in the cause or where it is irrelevant or not applicable to the evidence. Ibid. 19. If there is any evidence in a cause, however slight, to which an in- struction is applicable and it propounds the law correctly, it is to be given. Parish & Co. v. Reigle, 11 Grat. 697. See Appeals. rNSURANCE. INTEREST. 207 INSURANCE. A building insured, in which, one person has a life estate and another has the reversion, sustains a partial injury from fire, for which in- demnity is due from the insurers. Either the tenant for life or the rever- sioner is entitled to have' the amount due from the insurance office applied to the repair of the building. Brough v. Riggins'd.als., 2 Grat, 408. . INTEREST. 1. The whole profits of infants' estate being necessary for their support the interest on the annual balances of the administration account,' the hires of slaves and other annual profits in the hands of the administrator, should not be involved in the administration account, but should go into the account between the guardian and administrator. Jaekson's adm'r v. Jacfe- son's heirs, 1 Grat. 143. 2. An executor who is residuary legatee, is bound to pay interest on legacies, though not demanded for fourteen years. Bourne's ex'or v. Meechan, 1 Grat, 292. 3. Vendee put into possession of \land, bound to pay interest on the pur- chase money. Oliver's ex'or v. Hallam's adm'r, 1 Grat 298. 4. Tenants holding property which is the subject of controver.sy in a pending suit, are bound to pay interest upon the rents, though it is not ascertained who is the party entitled to receive them. Commonwealth v. Ricks, 1 Grat. 416. 5. An executor paying away assets to a distributee without notice of debts or liabilities of his intestate, must account to creditors for the amount so paid, with interest thereon from time of payment. Oookus v. Peyton's, ex'or, 1 Grat. 431. 6. Distributees receiving assets of the estate from^ the executor may be compelled to refund for payment of debts the amount of assets so received, with interest. Ibid. 7. The account filed with a declaration is dated 30th Sept. 1835. The jury give interest from the first of January preceding. This is no error. Babiiey's v. Knapp, Preston dh Co., 2 Grat. 354. 8. A trustee who is bound to account for Tents must pay interest on them. Mundy v. Vavjter el als., 3 Grat. 518. 9. Interest not allowed upon ground rents which proprietor has unrea- sonably delayed to sue for. Mulliday v. Machirs ex^or, 4 Grat. 1. 10. The balance of principal and interest on a guardian's account is not 208 INTEEEST. to be aggregated an4 interest charged thereon. Cunningham v. Cunning- ham, 4 Grat. 43. 11. An administratrix or any other fiduciary -whose duty it is to hire out slaves for the benefit of cestuis'que trust will be held j;o account for interest on their estimated hires. Cross' curairixv. Cross' legatees, 4 Grat. 257. ■ X2. Interest is not chargeable on estimated hires of slaves, except against fiduciaries whose duty it is to hire them out. Ibid. 13. Interest is not, to be charged tipon the interest due at the close of an administration account. T. Mmris' adm'r v. S. Morris' adm'r et ah., 4 Grat. 293. 14. An executor sells a slave Delonging to his testator's estate, the sale not being neces^sary for the payment of debts, and he re-purchaaes the slave and thereafter holds him as his own. The slave is the property of the estate, and the executor shall account for his annual hires with interest thereon, though he was not in fact hired out by the executor. Wood^s' ex'or V. J)epriest et als., 5 Grat. 6. 15. An executor takes bonds for purchases made at a sale by himself of testator's personal estate, and it does not appear when these bonds were paid ofi'. He will be charged with the principal of the^e bonds in the year when they fellMue, but with interest only froin the end of the year. Ibid. 16. Interest on the arrears of an annuity which was to be paid in agri- cultural products at a particular place and the value of which was to be ascertained by testimony, will not be allowed without a demand at the place where it was to be paid or an agreement to dispense with such demand and to convert it into money. Phillips et als. v. Williams, dec, 5 Grat. 259. 17. A party to a compromise, entered into, in ignorance of important facts connected therewith, binds himself to pay and does pay more than he was originally bound to pay. He is entitled to recover back the amount so overpaid, with interest from the time of payment. Ross' ex'or v. McLaugh- lin's adm'r et als., 7 Grat. 86. Same v. Maden's adm'r. id. 18. The penalty and condition in a penal bond for the payment of money are in the same sum. It is proper to treat it as a singl« 'bill and to give judgment for the amount of the bond with interest fropi the time of judg- ment. Fleming v. Toler, 7 Grat. 310. 19. A legacy bears date from the end of the year, though for thirteen years there has been no hand to receive it. Lyons' adm'r v. Magagna's adm'r, 7 Grat. 377. 20. Under the act March 2d. 1827, a landlord is entitled to interest on rent in arrear, from the time it was due. Broolcs v. Willcox, 11 Grat. 411. INTERROGATORIES. ISSUES OUT OF CHANCERY. 209 21. Upon a bond to pay the purchase money of land, with a provision that upon the purchaser's failure to get the legal title from a third party, the contract of sale shall be void, the purchaser having been let into posses- *sion and continuing to hold, and himself neglecting to get in the title, he shall pay interest. Bailey v. James, 11 Grat. 468. See Witness. INTERROGATORIES. 1. A party to a cause is not bound to answer interrogatories which may subject him to a penalty or forfeiture. Poindexter et als. v. Davis et als., 6 Grat. 481. 2. This rule is not confined to cases, where the purpose of the suit is to enforce the penalty or forfeiture, but extends to those where the discovery itself would expose the party to some action, or any criminal or penal prose - cution, tending to the like result. Ibid. ^ 3. If the Court permits improper interrogatories to bd' filed, and directs them to be answered, the party to whom they are directed, may answer them and then on the trial of the cause, may object to their admission as evidence. Ibid. 4. By the act, April .16th 1852, Sess. Acts, 1851-'2, ch. 92, H, p- 77, which authorizes the plaintiff in an action to file interrogatorjes to a de- fendant in custody, and authorizes the Court upon notice to the plaintiff or his attorney to discharge a defendant from custody, applies to the defend- ant in custody of his bail, as well as a defendant in jail. Levyy. Arns- thall, 10 Grat. 641. ISSUES OUT OF CHANCERY. 1. The Court in which a suit is pending^to contest the validity of a will, admitted to probat, may direct the issue- devisavit vel non to be tried at its own bar, on the Chancery side of the Court. CodUer's ex' or &c., v. Bryan and wife, &c., 1 Grat. 18. 2. The issue devisavit vel non may be made up in the words of the statute and feigned pleadings are unnecessary. Ibid. 3. Upon the issue devisavit vel non, the party sustaining the will is plain- tiff and entitled to open and conclude the case before the jury. Ibid. 4. Where a party has interest both under and against the will, he may be 210 ISSUES OUT OF CHANCERY. permitted by the Court to elect whether he will be plaintiff or defendant, in the issue. Ibid. 5. Upon directing the issue devisavit vel rum, the Court should, if moved so to do, direct the executor, if a competent witness, to be received and examined on the trial. Ibid. 6. On a bill to enjoin a judgment, on the ground that the debt on which it'is founded, was for money won at cards, it being doubtful on the evidence whether such was the consideration, or, if it was, whether the plaintiff in the judgment had not been induced by the concealment, or misrepresenta- tion of the debtor to take an assignment of the debt, under the belief that the consideration of the debt was lawful, the Court should continue the in- junction and direct an issue to ascertain the facts. Nelson's admi'r v. Arrrir strong et als., 5 Grat. 354. 7. Under circumstances of great suspicion an issue directed for the pur- pose of ascertaining whether the claim of a creditor, for which he seeks to subject slaves loaned to his debtor, was fair and bona fide or fictitious and fraudulent. Beale v. Bigges et als., 6 Grrat. 582. 8. Where the subject matter of controversy is in the nature of unliqui- dated damages, and the accuracy and credit of the witness is impeached, an issue should be directed. Isler & vnfe v. Grove & wife, 8 Grat. 257. 9. In a suit in equity, if there is no conflict in the evidence, no ambi- guity or uncertainty in it, but simply a failure to prove material facts, it is improper to direct an issue. Beed v. Clirm's heirs, 9 Grat. 136. 10. There may be an appeal from a decree directing an issue, where the decree impliedly involves a settlement of the principles of the cause. Ibid. 11. In a case of usury, if an issue is directed in theabse nee of proof, and there is a verdict finding the usury, still the injunction should be dissolved and the bill dismissed. Wise v. Lamb, 9 Grat. 294. 12. Upon an issue out of Chancery, properly directed the verdict of the jury is conclusive, when there is no exception spreading the facts upon the record. £ec's em^or v. Book, 11 Grat. 182. FitzhugVs ex'or v. Fitshugh. id. 210. 13. In a Chancery cause, if upon the state of the proofs at the time an issue is directed, the will should be dismissed, it is error to direct an issue ; and although the issue is found for the plaintiff, the bill should notwith- standing be dismissed at the hearing. Smith's adm'r v. Betty et als., 11 Grat. 752. Same v. Thurman et als. id. 14. When the allegations of the bill are positively denied by the answer, and the plaintiff has failed to furnish two witnesses or one witness, with JEOFAILS. 211 corroborating circumstances, in support of the bill, it is error to, direct an issue. The onus must be shifted and the case rendered doubtful by the conflicting evidence of the opposing parties before an issue' should be ordered. Ibid. JEOFAILS. 1. An indictment for murder states that the mortal wound was inflicted on the 7th Nov. 1845, that the deceased languished until the 8th Nov., in the year aforesaid and then alleges "on which said 8th of May, in the year aforesaid, the deceased died. The prisoner pleads not guilty. Held : the insertion of May for November is a mistake apparent upon the face of the indictment, and will npt exclude proof of the death subsequent to the 7th of November, or be cause for arresting the jnd'gmeat. Alstreck's case, 3 Grat. 650. 2. In a writ of right, the failure to file a plea is error not cured by a verdict in favor of the tenant. Rowans v. Givens, 10 Grat. 250. 3. An action on the case against the personal representative of a vendor, for fraud in the sale of an unsound slave, which the plaintiff was induced to purchase by means of a fal«e and fraudulent warranty or the fraudulent concealment of unsoundness, can not be maintained, and though there is a judgment for the plaintiff, the error is not cured by the statute of Jeofails, 1 Rev. Code, p. 511, ch. 28, § 103. Boyle's adm'r v. Overby, 11 Grat. 202. I 4. In such a case though there is a verdict for the plaintiff, there should be a judgment for the defendant. Ibid. 5. An action is misconceived in the sense of the statute, only when, upon the trial, the proofs show a cause of actioitfit to be asserted in a form dif- ferent from that adopted. The defendant is then held liable upon prooft showing a liability ; and if no objection is made to the form of action until after the verdict, the defect is cured. Ibid. 6. To hold a defendant liable' upon a eause of action not asserted, is going to the utmost verge of the law, even where such cause of sujtion is proved. But to hold him liable for such cause when not proved or proved by evidence not admissible, if the action had been brought for that cause, is going beyond the letter and spirit of the law. Ibid. 7. The statute, though, it will aid. defects, whether of. form or substance in pleading, where a portion of the matter is appropriate, does not apply to causes, to which the matter pleaded is in all its parts merely nugatory setting forth no ground of action, or no ground of defence, Ibid. 212 JOINT-TENANTS. JUDGMENTS. JOINT-TENANTS. L. being in possession of land, .to which he has no title, but -which he is authorized to rent out for his own benefit, makes a written contract with A., to let to him Ihe land for a year, upon the terms that L. shall find the tools to work the land and the seed to sow it, and A., shall board himself and family, work the crop and when it is gathered, give one half of it to L. This is not a lease rendering rent in kind, as the reservation of one half of the crop was not incident to the reversion, and consequently gave no right of distress; but theoontra«3t constitutes the parties joint-tenants of the crop raised. Lowe v. Miller, 3 Grat. 205. JUDGMENTS. 1. A judgment against the ancestor only binds the heir, when it can not be paid out of the personal' estate of the ancestor. Rogers v. Denham's heirs, 2 Grat. 200. 2. Where a Ji. fa. has been issued upon a judgment within the year and day is and has been enjoined, the judgment to a lien upon a moiety of all the lands owned by the debtor at the date of the judgment, or which were afterwards acquired, in the hands of bona Jide purchasers for value with- out notice.* Taylor's adm'r \. Spindle, 2 Grat. 44. 3. So long as a judgment may be revived, it . is a lien on all the lands owned by the debtor at the date of the judgment, or which he afterwards acquired, into whosesoever hands they may have come. Ibid. 4. A Court of Equity will entertain the bill of a judgment creditor, when the debtor has subsequently to the time of the judgment, conveyed his land in trust for the payment of debts, or other trusts, authorizing lie sale of the land. And in such case, the Court will decree a sale of the land to' satisfy the judgment. Ibid. 5. It is not necessary that a judgment creditor should have issued an elegit on his judgment before coming into equity for relief. Ibid. 6. A deed executed before judgment has been obtained against the grantor, under which the purchaser has been put into possession and paid the purchase money, but which was not recorded until after the judgment was obtained is void as against the judgment creditor. M' Clure v. Thistle's ex'ors. 2 Grat. 182. 7. The deed is void as to a judgment creditor who has levied a ca. sa. upon his debtor, who thereupon was discharged as an insolvent debtor. Ibid. * See Code, p. 708-'9, Ch. 186, {J 3, 4, 8. JUDGMENTS. 213 8. Upon a scire facias against bail, it is error to give judgment for the aggregate amount of principal, interest and costs, with interest thereon. Bowtjer v. Hewitt, Ruffmr & Co., 2 Grat. 193. 9. Notwithstanding upon the trial of a sdre facias the jury has found for the plaintiffs a sum different from that stated in the scire facias, it is merely supererogatory and the Court should give judgment for the proper sum. Ibid. 10. A judgment enjoined is still in force, as a security for the amount to which the plaintiff may be entitled. Kuifong v. Hendricks el als., 2 Grat. 212. 11. The lien of a judgment is a legal lien, and a purchaser of the legal title from the debtor takes it subject to the lien, though he had no notice of it.* Leake v. Ferguson, 2 Grat. 419. 12. On a joint juSgment against several, the service of a ca. sa. upon one and his execution and forfeiture of a forthcoming bond, does not ex- tinguish the lien of the judgment upon the lands of the others. Ibid. 13. Prior to the act of 1852, Sup. Rev. Code, oh. 282, ^ 1, a judgment in favor of the Commonwealth against its general debtors only bound one moiety of the debtor's lands. Ibid. 14. The judgment lien does not give title to rents and profits before a decree. Ibid. 15. A foreign judgment does not merge the specialty on which it is founded, as against the heirs in Virginia. Beall's adm'r v. Taylor's adm'r and heirs, 2 Grat. 532. 16. A jury having convicted the priloner, and fixed the -term of his im- prisonment in the penitentiary for a shorter period than the law allows, it is error in the Court to enter a judgment on the verdict for the shortest period of imprisonment authorized l)y the law for the offence. Nemo's case, 2 Grat. 558. 17. Debt on scire facias may be brought upon a judgment, "when assets " or " if assets," or if upon the plea of 'plene administravit, the verdict is for the administrator, the plaintiff may take another judgment "when assets.'' Braxton v. Wood's adm'r, 4 Grat. 25. 18. No execution can issue upon a judgment, "if assetts," but plaintiff may proceed immediately by action of debt or scire facias, ix> ascertain whether there is not a surplus of assets after paying the debts which have priority to his judgment. Ibid. 19. Judgment, " when assets " or " if assets " is within the: operation of the statute of limitations. Ibid. See note, ante, p. 212, 214 JUDGMENTS, 20. Suit brought upon a judgment and dismissed does not prevent the bar of the statute. IhiA. 21. A judgment is a lien upon the lands of the debtor at the date of the judgment in the hands of bona fde alienees for value. Eogers v. M'Clwr^s adm'rs el als., 4 Grat. 81. 22. The land last sold is first to be applied to satisfy the judgment, though the last purchaser obtained a conveyance first ; the first having had a good equitable title, -ibid. 23. A judgment debtor having enjoined the judgment, and the injunc- tion having been dissolved, and the surety in the injunction bond having paid off the judgment, he is entitled to be suljstituted to the judgment lien. Ibid. 24. The fiction of law which makes a judgment relate back to the first day of the term, applies to all cases when the judgment or decree might have been rendered on -that day, but not to a case where it could not have been i;endered. Withers y. Carter et ah., 4 Grat. 407. 25. A^reditor by judgment or decree may, in equity, subject the debtor's equitable interest in land sold by him, for the purchase money unpaid ; and such creditor will be preferred to a subsequent assignee of the purchase money. Ibid. 26. A purchaser of land, subject to the lien of a judgment, is entitled to have the .purchase money applied to the discharge of the judgment. Ibid- 27. A court of equity will set aside a fraudulent sale of personal property by a judgment debtor at the suit of a judgment creditor and direct the purchaser to deliver it to a commissioner to sell it. If the purchaser fails to deliver it to the commissioner, the Court will direct an account of its value and subject the purchaser for the value so ascerttdned. JSPNew v. Smith, 5 Grat. 84. 28. Upon setting aside a conveyance of real estate as fraudulent, at the suit of a judgment creditor, the Court can decree the sale of only one modety of the lands to satisfy the judgment. Ibid. 29. If a debtor conveys lands fraudulently, and retains other lands, on setting aside the conveyance at the suit of a judgment creditor, there will be a decree for a sale of only the moiety of tte whole, embracing in said moiety the land retained by the debtor. Ibid. 30. A judgment will be enjoined for a mistake of the jury, ascertained •by after discovered evidence. Bust et als. v. Ware, 6 Grat. 50. 31. A bankrupt having obtained his discharge subsequent to a judgment against him, may enjoin the suing out or levy of any execution, upon the judgment. Peatross v. M'Laughlin, 6 Grat. 64, JUDGMENTS. 215 32. The written agreement between the maker an payee of a note in relation to the contract in execution of which the note was made, having been lost at the time the judgment was recovered on the note by the holder thereof, and without which agreement the maker of the note could not make his defence at law, of fraud in the procurement of the note, that is a groiirfd for the jurisdiction of a Court of Equity to enjoin the judg- ment. Yather v. Zaiie, 7 Grat. 246. 33. A judgment on a forthcoming bond enjoined at the suit of a surety therein, on the ground that he has an action pending against the creditor for a large amount and that the creditor is insolvent. M' Cklland v. SJin- naird, 6 Grat 352. 34. The act 1 Rev. Code, ch. 128, ? 65, p. 505, in relation to a scire facias to revive a judgment iS not repealed by the act of March 29th 1831, Sup. R. C. ch. 197, ? 2, on the same subject. Williamson v. Crawford, 7 Grat. 202. 35. Upon a scire facias to revive a judgment, neither a declaration nor a rule to plead is necessary. And if the writ is made returnable to the rules and the defendant makes default, there should be an award of execu- tion, which, if not set afiide at the next term, becomes a final judgment as of the last day of the term. Ibid. 36. Quccre : what would be the effect generally of a judgment against an administrator de bonis nan, in establishing a debt against the estate so as to conclude a former executor or administrator atid thereby subject him to a devastavit. Sheldon'^ adm'r et als. v, Armistead's adm'r et ah., 7 Grat. 264. 37. An executor signs a note for the debt of his testator, as executor, there is an action thereon against him as executor but the count is in the debet and detinet and the breach is for the failure to pay. Qucere : Whether upon a judgment by default it should be against him as executor or perso- nally. Snead v. Coleman and wife, 7 Grat. 300. 38. If it is error to give a personal judgment against him, it is error to be corrected by motion to the Court and not appeal. Ibid. 39. Qacere : If a judgment against a personal representative, guando acci- derint is within the statute of limitations in relation to judgments. Smith's adm'r v. Charlton's adm'r, 7 Grat. 425. 40. A judgment confessed in a suit pending, in court, and the oath of in- solvency taken thereon by the debtor, upon his surrender by his bail has relation to the first moment of the first day of the term ; and therefore the assignment by operation of law has preference to the lien of a forthcoming bond returned to the clerk's office of the first day of the term. Jones, &c., V. MyricWs ea^ors, 8 Grat. 179. 216 JUDGMENTS. 41. Though a forthcoming bond is forfeited and not quashed, the lien of the original judgment continues. Ihid. 42. Lands subject to a judgment lien which have been sold or encum- bered by the debtor, are to be subjected to the satisfaction of the judgment, in the inverse order in the point of time, of the alienation and incum- brances, the land last sold or encumbered being first to be subjected. Ibid. 43. A judgment creditor, having by his conduct, waived or lost his right to subject the land first liable to satisfy his judgment, is not entitled to subject the lands next liable for the whole amount of his judgment, but only for the balance after crediting thereon the value of the land first liable. Ibid. 44. A judgment creditor concluded by a decree in a cause in which he is a defendant, though he has, at the same time, a suit depending against the same parties, to enforce his prior lien. Ihid. 45. A judgment against an administratrix, upon the bond of her intes- tate is conclusive of the validity of the debt against the administratrix. Moritague's adm'x v. Turpin's adm'x et als., 8 Grat. 453. 46. An injunction to a judgment at law, dissolved as improvidently awarded, without answer, though the bill charges that the judgment was recovered without appearance or defence, for money which the plaintiff in the judgment alleged he had paid as surety, though he had not, in fact paid one cent of the money, but the same had been paid by another surety against whom there was a joint-judgment with the plaintiff at law ; and that of this the plaintiff in the bill had no knowledge until after the judg- ment and could not therefore make his defence at law. Slack v. Wood, 9 Grat. 40. 47. A judgment is recovered by the assignee of a bond given for the pur- chase money of land, the contract for which is rescinded after the assign- ment. The! debtor is not entitled to enjoin the judgment, as to the as- signee. Drake \. Lyons, 9 Grat. 54. ' 48. A judgment is a lien upon lands in the-hands of a purchaser, though at the time of the conveyance, execution upon the judgment was suspended by an injunction; and the lien exists, though the judgment was not docketed, the purchaser having had notice thereof. Graig v. Sebrdl,,9 Grat. 1'31. 49. Upon a scire facias against bail, he surrenders his principal and gives notice thereof to the attorney of the plaintiff, the plaintiff not being in the county, but there is an ofSoe judgment against the bail, and he not defend- ing it, it is confirmed. Equity will not relieve, Allen, Walton & Co. v. Hamilton, 9 Grat. 255. 50. The judgment of a Circuit Court against a high sheriff is conclusive JUDGMENTS. 217 of its jurisdiction unless reversed on appeal, and his deputy and sureties cannot question it, on the motion of the adniinisttatrix of the high sheriff against them. Cox et ah. v. Thomas' adm'r, 9 Grat. 323. 51. Though lands are conveyed in trust to secure debts, a judgment having priority to the deed is a lien upon only a moiety of the land. Buchanan v. Clarke et als., 10 Grat. 164. 52. If some of the land embraced in a judgment lien is also embraced in a deed of trust, subsequent to the judgment and other of it is not, the latter should be sold, vrith only so much of that embraced in the deed, as vfill make a moiety of the whole. Ibid. 53. If there are two judgments having preference to the deed, the re- maining moiety should be sold and applied to pay the second judgment. Ibid. 54. An injunction to a judgment at law will not be sustained to allow the defendant at law to set up payments or offsetts which he might have pleaded at law ; and if a discovery was necessary to enable him to prove them, he should have filed his bill of discovery in aid of his defence at law; or he should have filed interrogatories under the statute. George v. Strange' s ex'ors, 10 Grat. 499. 55. The lien of a judgment is not defeated by a discharge of the debtor as a bankrupt; and it may be enforced in the state courts. McCance v. Taylor, 10 Grat. 580. 56. An elegit issued upon a judgment rendered against a bankrupt before his bankruptcy, may be in the usual form, and in executing it, the sheriff must take notice of the bankruptcy of the debtor. Ibid. 57. It was not improper even before the act. Code, p. 706, § 9, to render a judgment for costs in favor of a defendant against a person for whose benfit a suit was brought, when the defendant succeeded in the case. Pates V. St. Clair, 11 Grat. 22. 58. In a suit brought in the name of one person for the benefit of another a judgment stating that the parties appeared by their attorneys and by con- sent the suit was dismissed and judgment for defendants costs against the person for whose benefit the suit was brought, it must be held that the consent is the consent of the latter and that the judgment is proper. Ibid. 59. The pendency of an injunction to a judgment at law will not prevent the revival of the judgment upon the death of either plaintiff or defendant. The injunction in such case operates upon the judgment as rbvived. Bieh- ardson's adm'r s v. Prince George justices, 11 Grat. 190. 60. A surety in a forthcoming bond is a surety for the debt and when he pays it is entitled to all the rights of the creditor against the original 218 JUDICIAL SALE. ^ debtor subsieting at the time he became bound for the debt. And the judgment for the benefit of the surety so paying is not extinguished but transferred with all its obligatory force against the principal ; and is a lien upon his lands owned at the date of or subsequent to the judgment. Sill V. Manser ei als, II Grat. 522. See Injunctions. JUDICIAL SALE. 1. A purchaser of land at a judicial sale can only obtain relief for defects in the title or incumbrances on the title by resisting the confirmation of the sale upon the return of the commissioners' report. Thralkelds y. Campbdl, 2 Grat. 198. 2. As a general rule a sale of land under a decree enforcing the vendor's lien, should be upon a reasonable credit. Kyle's v. Tail's adm'r, 6 Grat. 44. 3. Though a decree directing a sale does not direct the commissioners to convey to the purchasers, yet if they do convey and they do report the fact and the Court confirms the report, the decree of confirmation gives full efiect to the deed and relates back to the time of its date. Evans and wife V. Spur gin, 6 Grat. 107. t 4. A sale and conveyance of land under a decree in a suit, by a creditor against the executor, to which the devisees are not parties, does not pass the legal title. Hudgin v. Hudgin's ex'or, 6 Grat. 320. 5. Though such purchaser can not hold the land against the devisees, he is entitled to be substituted to the rights of the creditor against it. Ibid. 6. A decree for the sale of infants' land directs it to be sold upon the premises. It is irregular to make the sale elsewhere. The commissioner should have reported that the sale could not be made there for the want of bidders, and obtain ^instructions for his future conduct. Talley el als. v. Starke's adm'x et als., 6 Grat. 339. 7. A sale having been irregularly made, as the purcha'ser could not enforce his contract, if resisted by the parties in the cause, he should not be compelled to execute it. Ibid. 8. Though some of the pjirchasers are content to affirm the sale, yet as it is set aside, as to others, the Court will set it aside as to all if the interests of the infants require it. Ibid. 9. The title to land having been obtained by a suit in equity by the assignee of the purchase money, in which a conveyance was decreed ; after the decree, but before .the conveyance is made, a son of the vendor files a JURISDICTION. 219 bill in another court, in which he falsely and fraudulently alleges, that he had paid off the incumbrance on the land and retained the lien ; and with the fraudulent connivance of the vendor, who is insolvent, he obtains a decree for the sale of the land to satisfy his pretended lien ; and the land is sold, and the sale is confirmed. Held : The conveyance to the vendee having been made in pursuance of a contract entered into long before the commencement of the suit by the son of the vendor, and in obedience to a decree made before the commencement of that suit, the deed had relation back to the date of the contract, or at least to the date of the decree direct- ing it; and therefore the decree and sale in the son's suit is inoperative against the title of the vendee, and gives him no equity for an injunction and rescision of the contract. Young's adm'r and Boviyer v. Mc Clung et als., 9 Grat. 336." 10. The decree in the son's suit may, and must, if necessary for the pro- tection of the vendor and his assignee, be held to be wholly inoperative as to them. Ibid. 11. The purchaser under the decree in the son's suit, having been cogni- zant of the proceedings in the suits of the vendee to enjoin the purchase money, and of the assignee to procure the title, and being in fact bound ate surety for that purchase money, and having purchased and permitted the sale to be confirmed without objection, is not entitled to be relieved from his purchase, and from paying his purchase money, though he acquires no valid title to the land purchased by him. Ibid. 12. In a controversy between a judgment creditor and creditors claiming under a deed of tirust, the Court having decreed a sale of aU the land, and it having been purchased by a party claiming under the deed of trust, and the final decree being in his favor, and a conveyance to him being directed, upon appeal by the party claiming under the judgment, the decree is re- versed. The claim of the purchaser must fall with the reversal of the de- cree ; the purchaser not being a stranger to the controversy purchasing at a judicial sale, but/ the party chiefly benefitted by the proceedings com- plained of. Buchanan v. Clarke et als., 10 Orat. 164. 13. A purchaser at a sale of land made by a commissioner of delinquent lands is not bound to prove that all the proceedings of the commissioner and the Court were regular. The proceeding is in the nature of a judicial proceeding, and the orders and decree of the Court made in it are conclu- sive, at least upon all strangers. ^ Smiih et als. v. Chapman, 10 Grat. 445 See Vendok and Purchaser. JURISDICTION. See Appeals ; Criminal Jurisdiction and Proceedings ; Equitable Ju- risdiction AND Relief ; and Pleading. 220 JURISDICTION. 1. Hasty expressions of a juror, who swears he has formed no opinion of the guilt of the prisoner, and feels no prejudice against him do not render him incompetent. Mailstock's case, 2 Grat. 564. 2. On a trial for felony the Court has no right to discharge a jury, with- out the consent of the prisoner, merely because the Court is of opinion that the jury will not be able to agree. William's case, 2 Grat. 567. 3. There must be a necessity for the discharge of the jury, to authorize it. Ihid. 4. The practice of finally adjourning the Court without noticing the jury, whereby it is discharged ,by operation of law or of discharging it simultaneously with the final adjournment of the Court approved. Ibid. 5. If the Court improperly discharge the jury without the consent of the prisoner he is entitled to be discharged from the prosecution. Ibid. 6. Under the act of February 24th 1846, a juror in a criminal case must be a freeholder in the county to the officer of which, the venire facias is directed.* Day's case, 6 Grat. 629. 7. A person having the equitable interest in land, and entitled to call for the legal title, is a freeholder, qualified to serve as a grand juror. Mel- mondoUor's case, 4 Grat. 536. 8. What opinions formed and expressed will not disqualify a juror, in a trial for murder. Epe's' case, 5 Grat. 676. 9. Several days being taken up in completing the panel, in' a trial for murder, it is not necessary that the jurors who have been sworn, shall be committed to the custody of the sheriff, until the whole number of the panel is completed. Ibid. 10. The prisoner objecting to a juror on the ground that the venire facias was illegally executed, and the Court sustaining the objection, it is proper to set aside the whole panel and direct another venire facias. Ibid. 11. Under the circumstances, the testimony of jurors received to prove that they rendered a verdict under a mistake as to its legal effect. Moffett V. Bovmian, 6 Grat. 219. 12. A verdict which is in all respects fair, and in the judgment of the Court which tried the cause, in conformity to the evidence, will not be set aside on the testimony of a few of the jurors that they had been induced to agree to the verdict under a misapprehension of an instruction of the Court. Hansbarger's adm'r v. Kinney, 6 Grat. 287. 13. What opinions formed and expressed beforehand do not disqualify as a juror in a criminal case. Smith's case, 6. Grat, 696. SeBB. Acts 1852-'3 p. 43, cli. 37, } 1. JURISDICTION. 221 14. The property -which an heir has in a tract of land on which there is a mill, which land has been allotted to and is in possession of the widow as dower does not disqualify as a grand juror. Wysor v. Commonwealth, 6 Grat. 711. 15. The entertaining; a decided opinion of the prisoner's guilt formed on the testimony as published in the newspapers is not a valid objection to a juror, if he thinks he can discard the opinion and that it would not influ- ence his judgment; alnd that he could give the prisoner a fair trial accord- ing to the law and evidence as submitted tg the jury. Smith's case, 7 Grat. 593. 16. The prisoner was charged in different indictments with having advised, &c., two slaves to abscond, the advice being given to both at the same time, a venireman summoned on the first trial was stricken from the panel by the prisoner. This is not a valid objection to him as a juror on the second trial. Ibid. 17. A person having expressed himself, before the jury were impannelled, as determined to punish the prisoner, if taken jipon the jury, not from any malice towards him, but from an opinion of his conduct, is no ground of setting aside the verdict and granting a new trial. Curran's case, 7 Grat. 619. 18. The Code, oh. 208, 1 10, p. 774, gives to all jurors sitting in criminal cases compensation at the rate of one dollar a day for each day of service. Smither's case, 7 Grat. 673. 19. On a trial for murder, it is ground for challenge of a juror, on the part of the Commonwealth, that he says he has conscientious scruples about the propriety of capital punishment and is opposed to it ; and if the proofs show the prisoner guilty of murder in the first degree, he does not know that he will convict him. Clare's case, 8 Grat. 606. 20. An opinion formed by a juror from rumor alone but existing on the mind at the time and to which opinion he will stick unless the evidence turns out different from what rumor had reported it to be, is not good cause of challenge by the prisoner, where the juror has no prejudice or partiality for or against the prisoner, and he believes he can give him a fair and impartial trial according to the evidence. Ibid. 2t. An objection to a juryman that he is not qualified, according to law, comes too late after he is sworn to try the issue. Thompson's case, 8 Grat. 637. 22. It is not misbehavior in a juror, between the adjournment of the Court in the evening and its meeting the next morning to drink spirituous liquors in moderation. Ibid. 23. And it is not misbehaviour for a jury to drink at the invitation of 222 JURISDICTION. one of the Commonwealth's -witnesses, if it is done in the presence of the sheriff and is obviously intended as a mere act of courtesy. Ibid. 24. In ■walking put for exercise, the jury, with the sheriff pass beyond the limits of the county, in which the prosecution is pending. This is no ground for a new trial. Ibid, 25. A sheriff to whom a jury is committed during the progress of a criminal trial, walks out with them to a neighboring house and whilst there withdraws from the room where they are, leaving them in the compa- ny of three other persons. Although these other persons swear that there was no allusion made by them to the trial, during such absence of the sheriff, yet the verdict of the jury is to be, set aside and a new trial awarded. Wormley's case, 8 Grat. 712. 26. It is a good objection to a juror in a case of felony, that he is not a freeholder.* Dowdy's case, 9 Grat. 727. 27. If the prisoner's olgection to a juror is ipiproperly overruled, the error is not cured by the juror's name being struck from the panel by the prisoner or his not being drawn as one of the twelv«, who are to try the prisoner. Ibid. ' 28. A juror summoned for the trial of a prisoner fails to appear, on the day to which he is summoned, taut appears at another day, under a rule to show cause why he should not be fined for failing to appear. K in other respects qualified, he may be put upon the panel, that not having been completed when he appears. Wormley's case, 10 Grat. 658. 29. What is not such an opinion as will disqualify a juror for serving on a trial for felony. Ibid. 30. After the original venire is exhausted without finishing^ the panel, the Court may order any number of persons to be summoned, it may think necessary ; and if the sheriff, for the want of time or other causes, fails to summon the whole number, the return is valid for as many as are sum- moned. Ibid. 31. On a trial for arson, the nephew of the deceased wife of the person whose house has been burned, is an incompetent juror. Jaqiies' case, 10 Grat. 690. 32. In such a case if the wife left no issue, it is for the prosecution to show it ; and that fact not being shown, the objection is valid. Ibid. 33. As no challenge to a juror is allowed to the Commonwealth except for cause, when such challenge is made, the cause should be shown and should be a good and legal cause for the exclusion of the juror ; otherwise it should be overruled. Montague's case, 10 Grat. 767, * See note, ante, p. 220. JUSTICES. 223 34. The Court cannot, of its o^n motion, set aside a Juror without good cause, except where he is physically or mentally disabled from properly dis- charging the duties of a juror, or is disqualified by a statute. Ibid. 35. If the Court sets aside a eompeteat juror, it is error for which the prisoner may except and have the judgment reversed. Ibid. 36. What does not render a juror incompetent. Ibid. See Criminal Jurisdiction and Pkooeedings and New Trial. JUSTICES. 1. A justice of the peace has jurisdiction to hear a motion and to give judgment against a constable and his surety, for the failure by the constable to pay over money collected on execution. Hendricks v. Shoemaker, 3 Grat. 197. 2. The jurisdiction of the justice in such cases is not confined to twenty dollars. Ibid. 3. One joint-notice to a constable and his sureties, upon default of the constable in several cases, is sufficient ; and the justice should give a sepa- rate judgment in such case. Ibid. 4. The Governor may commission some of the persons recommended as justices at the same time by the County Court, and may decline to commis- sion others.* Frederick justices v. Biiice et als., 4 Grat. 281. 5. A person who has been commissioned by the Governor, as a justice, may take the oaths of office before a justice of the peaoa, if it is done in the Court house on a Court day.. Ibid. 6. Upon an application to establish a public landing, the viewers report that a list of 120 persons was shown to them who would be benefitted by establishing ffhe landing. Two of these persons were justices of the peace of the county and when th« order awarding the writ of ad quod fiamnum was made, they were on the bench ; and one of them was on the bench when the landing was established. This is no legal objection. Muire v. Fahoner et als., 10 Grat. 12. 7. A justice of the peace acting as coroner and having as coroner com- mitted a person to jail for felony, may certify the fact of such committal as a justice of the peace. Wormley's case, 10 Grat. 658. See Bail. • Elected by the people, Ar. «, J 27, Con. 186. 224 LACHES. LACHES. 1. Land is sold for non-payment of taxes and bought by the sheriff; the owner thereof being then insane, and continuing so until his death, seven years after the sale. Eighteen years after the sale the devisee of the origi- nal ovfner files a bill against the purchasers from the sheriff to recover the land. She is not barred by the delay in presecuting the claim. Taylor's devisee v. Stringer ei als., 1 Grat. 158. 2. Bill is filed by one partner against the administratrix of the other, nine years after the dissolution of the partnership. Not such laches as to forbid an account. Marsteller v. Weaver, 1 Grat. 158. 3. A vendor of real estate, retaining the title, the statute of limitations can not be set up as a bar to his recovery of the purchase money, nor is the staleness of the demand any defence. Hoplnns' adm'r v. Cockerel et als., 2 Grat. 88.' 4. The lapse of time dufing which a ward is prosecuting her claim ag&,ihst the administratrix of her guardian is no ground for the exonera- tion of the surety of the guardian. Boherfs v. Colmn, 3 Grat. 358. 5. In a suit by the proprietor to recover ground rents, the defendant, in his answer admits that the rents have not been paid. Lapse of time is no bar to the recovery. Mulliday v. Machir's adm'r, 4 Grat. 1. 6. Delay in the prosecution of a pending suit, where there is not evidence of abandonment, will not deprive the party of his right to revive and prose- cute it. Ghinn et als. v. Murray et als., 4 Grat. 348. 7. An administrator qualifies as such in 1785 ; his administratian termi- nates in 1794, and some years afterwards he dies, never having settled his administration account. The distributee who was a child in 1785, files his bill in 1819 against the representative of the administrator for an account, who professes total ignorance as to the accounts, except what may be learned from the books and papers of the administrator, but submits in the answer to account. After an account has been taken and a decree has been made upon it, the objection on the ground olKac^es will not avail in the appellate Court. Will's adm'r v. Dunn's adm'r, 5 Grat. 384. 8. A residuary legatee barred by lapse of time, though another suit was pending, by another legatee, to recover her legacy, and it was not ascer- tained unljil the decree in that case, that there was a residuum. Ander- son, adm'r, &c., v. Burwell's ex'ors, 6 Grat. 405. 9. A party who comes into equity to enforce any equitable claim, must do so, within a reasonable time, and must not delay until, by his negli- gence, there can no longer be a safe determination of the controversy, and his adversary is exposed to injustice from loss of information and evidence and means of recourse against others, occasioned by deaths, insolvencies and other untoward circumstances. SmiiJi et als. y.' Thompson's adm'rs ei als. 7 Grat. 112, LANDLORD AND TENANT. 225 10. The application of this equitable doctrine is for the sound, discretion of the court and does not require the conviction of the court against the original justice of the claim, or of any other specific ground of defence : but its belief that under the circumstances of the case, it is too late to ascertain the merits of the controversy. Ihid. H. A creditor not named in a deed of trust may show by proof that he was intended to be secured under the provision for another creditor ; and under such circumstances the creditor was not barred by the ^elay which had occurred from asserting and obtaining relief. Griffin's ex' or v. A. Macauley's adm'r, 7 Grat. 476. Dismal Swamp Land Co. v. Same. id. 12. A step-father conveyed to his step-son, when a minor living witli him, a slave, purporting to be for value and he retained possession of the slave and her increase for many years and until after the death of the step- son. After the death of the step-son, who left no children, his widow filed a bill against the step-father and his wife for distribution of the slaves. This suit was a little less than twenty years from the time when the step-son ceased to live with the step-father. The latter having stood in the place of a parent and guardian to the son until the son ceased to live with him, the claim is not barred by lapse of time. Roberts v. Kir>,g, 10 Grat. 184. 12. A suit for an account of administration was brought twenty-six years after the death of the intestate, twenty-one years after the death of the admin- istrator, long after his administrator had settled up his estate, showing that there were no personal assets, and in the absence of the first administra- tor's books and papers, against his heir, who at his death was an infant two years old. The staleness of the claim is conclusive against it. HUlis T. Hamilton adm'r et als., 10 Grat. 300. 14. Under the circumstances, the delay in the prosecution of a pending suit for twenty-three years, held to bar further proceedings in it. Craw- ford's es^or V. Patterson, 11 Grat. 364. 15. Lapse of time is justly of great weight in controversies about trans- actions long since past. But this weight is thrown in favor of the party who insists that the state of things existing during the lapse of time shall not be disturbed. It cannot be relied on by parties seeking to change that state of things. Evans etals. v. Spurgin et als., 11 Grat. 615 16. A delay of seventeen years by a specific legatee to sue for his legacy held, under the circumstances, not to bar his claim. Nelson's adm'r v. Cornwell, 11 Grat. 724. LANDLORD AND TENANT. 1. In a suit in which the tenant is not a party, but the lessor is, a decree o 226 LANDLORD AND TENANT is made directing the sheriff to rent out the demised premises. The premises are rented out and the tenant yields possession. As the decree did not direct the sheriff to evict the tenant, and there was no paramount title under which the lessee might have been evicted, his surrender of the possession was not an eviction, so as to release him from the payment of the rent. Murray, Caldwell & Co., v. Pennington, 3 Grat. 91. 2. The landlord's lien for a year's rent on the goods and chattels of his tenant does not extend to protect them from being taken under execution, except in cases where they are upon the demised premises. Oeiger'a adm'r V. Harman's eai'a;., 3 Grat. 130. 3. Salt works are rented for two-thirds of the salt made, and the lessees covenant to make at least sixty thousand bushels of salt in each year. The landlord is not entitled to distrain or sue for forty thousand bushels, but only two-thirds of the quantity actually made. Prestons v. McCall, 7 (Jrat. 121. 4. Upon a writ of unlawful detainer, the defendant sets up title in him- self. The plainuff may prove that the defendant entered on the premises under a parol lease from himself, though the lease was to continue more than a year. Mann v, Gwinn et ah., 8 Grat. 58. 5. T leases land to E by deed, which is executed by E, and he thereby acknowledges that he is in possession under the lease, and covenants to return the possession at the end of the term. B holds over, after the term expires, for seven years ; and whilst in possession executes a deed by which he conveys a part of the leased premises to A ia fee simple, with a covenant of general warranty, and puts A in possession, and disclaims to hold under T, who then institutes a proceeding of unlawful detainer against E and A. Held : 1st. That E is responsible to T for the whole of the leased premises, though at the time of the institution of the proceeding, A was in posses- sion of a part of the land. Emerich, &c., v. Tavener, 9 Grat. 220. 2nd. That T's recovery is not to be confined to the land in the actual occupancy of E at)d A, but he is entitled to recover all the land demised ; and he may show by parol evidence what constitutes the demised premises. Idem, 220. 3rd. That E and A were properly joined in this proceeding, though they did not hold the land jointly, but each held a part of the land in severalty ; and, if only one of them held a part of the land, T ia entitled to a judgment against him, though there should be a judgment for the other. Idem, 220. 4th. Though if A was in actual possession of no part of the land claimed by the warrant, at the time it was issued, he would be entitled to a verdict in his favor, yet E, the lessee, would be responsible to T, and there Hhould be a judgment against him, though at the time of the issue of the LANDLORD AND TENANT. 227 warrant he was not in the actual possession and occupancy of any part of the land. Idem, 220. 5th. A having entered on the land claiming in fee under the eonveyance from E, was not entitled to six months' notice to quit from T, though he had not expressly disclaimed to hold under the lease from T to B : and if he held expressly as under-tenant of B, he would not be entitled to notice. When T. had determined the tenancy of E. by six months' notice to quit, or E had disclaimed to hold as tenant, and thereby deprived himself of the right to notice, it was competent to T to proceed at once to oust both E and A. Idem, 220 6th. The lease being for a certain quantity of land situate as therein de^ scribed, and E having executed it under his hand and seal, and thereby recognized the description and boundaries therein specified, and that he then held the same in possession ; and the vrarrant being for the precise tenement described in the lease, neither B, nor A claiming under him, can be entertained to deny that the tenement had its boundaries, or that they were within them. Idem, 220 7th. E and A will not be permitted to introduce evidence of title to the land embraced in the lease, either in themselves or others ; nor will they be permitted to introduce their title papers for the purpose of showing that they had not possession of the land claimed by T. Mem, 220. 8th. T, if entitled to recover, may recover according to the desoriptioa of the land in the warrant or in the lease ; and he must, at his peril, point out to the sheriff the premises of which he is to give possession. And if he takes more than he has recovered in the action, the court will interfere in a summary way and compel him to make restitution. Ihid. 9th. E having entered under the lease and held over after the term ex- pired, if T did any act recognizing him still as his tenant, B became there- by tenant from year to year, upon the conditions of the original lease. If T did not recognize the continued tenancy, E was tenant at sufferance and not entitled to notice to quit. Ibid. 10th. B being in as tenant, after the term has expired, he continues to hold as such as long as he remains in possession, unless he disdains to hold as such and asserts a right adverse to T ; and such disclaimer and asser- tion of adverse right are brought home to the knowledge of T, by a full notice by E of his disclaimer aud assertion of adverse titie- Qi^mre : if he must not surrender the possessioa.to T. ? Ihid. 11th. A, by entering upon a part of the land, as purchaser from E, there- by becomes subject to the same relations, held by E to his lessor T; and neither could set up an adverse title, unless he showed he had restored the possession to T, or had disclaimed and held adversely, with full notice to T, for the period of -limitation presented by the statute. IW. 228 LARCENY.— LEASES. 12th. E and A could no more deny that the possession*under which E entered, than they could controvert his title. Ibid. 5. Qutere : If a tenant can disclaim holding under his landlord and set up an adverse title, without surrendering the possession of the premises ? If he can, he cannot deny the title under which he entered or throw the burden of proof on the other side by denying his tenancy. Creigh's heirs V. Henson. 10 Grat. 231. 6. A tenant who surrenders possession at the end of his term, or from whom possession has been recovered, is not concluded by the existence of such tenancy, at one time, or by the deed of lease, which he executed, from contesting the title of his former landlord. Wild's lessee \. Serpell, 10 Grat. 405. 7. An agreement under seal by a tenant, that he will surrender posses- sion, whenever a purchaser from the landlord requires it, constitutes him a tenant at will or sufferance ; and he is not entitled to six months' notice to quit, Harrison v. Middleion, 11 Grat. 527. 8. If a tenant claims to hold adversely to his landlord, he is not entitled to notice to quit. Ibid. 9. A landlord sells land in possession of his tenant, by agreement under seal, and the tenant refuses to surrender possession. The landlord is the proper party to institute a proceeding of unlawful detainer to obtain pos- session. Ibid. Seb Leases and Bents. LARCENY. 1. The obligor in a bond may commit larceny in taking it from the hands of the payee. What constitutes a taking with intent to commit a larceny in such a case. Vaughan's case, 10 Grat. 758. LEASES. 1. L being in possession of land, to which he has no title, but which he is authorized to rent out for his own benefit, makes a written contract with A to let him the land for a year, upon the terms that L shall furnish the tools to work the land and the seed to sow it, and A shall board himself and family, work the crop and when it is gathered, give one-half of it to L. This is not a lease, rendering rent in kind, as the reservation of the one-half of the crop was not incident to the reversion and consequently gave no right of distress ; but the contract constitutes the parties joint-tenants of the crops raised. Lowe v. Miller, 3 Grat. 205. LEGACIES AND LEGATEES 229 2. The question whether certain premises are parcel or not of demised premises, if not ascertained by the written contract, is always open to ex- trinsic evidence ; and parol testimony is admissible to show what is em-- braced in the lej«se. Crawford v. Minis, 5 Grat. 90. 3. The agreement between the landlord and tenant provides that the tenant is " to get the house at the price herein stated for one year after his present year expires, and is to have the preference each succeeding year hereafter." This does not create a tenancy from year to year, and so entir tie the tenant to notice to quit. Ibid. See Landlord and Tenant. LEGACIES AND LEGATBE& 1. A legatee is entitled to interest upon her legacy although she has not demanded it for fourteen years. Bourne's esffor v. Mechan, I Grat. 292. 2. A legacy being made payable on the legatees attaining the age of eighteen or marrying, the legatee cannot maintain a suit to recover the legacy before the happening of one or the other contingency. Swope v. Chambers, 2 Grat. 319. 3. In such a case, the suit being brought to recover the legacy, upon the pleadings, the court can not make a decree to have it secured. Ibid. 4. Until a contingent legacy is payable, the executor can not relieve himself and his sureties from responsibility for it, by paying it over to the guardian of the legatee. Ibid. 5. A bequest to a corporation of its own stock is valid. Hivanna Nav; Co. V. Dawsons, 3 Grat. 19. 6. A bill of exchange drawn by a legatee on the executor to the amount of the legacy, was held to be an equitable assignment of the legacy to the drawee. Anderson et als. v. De Soer, 6 Grat. 363. Same v. Gallego's adm'r et als. id. 7. Legacies are to be paid with interest, though the fund out of which they are to be paid does not bear interest. Anderson, adm'r, (&c., t. Bur- well's ex'ors, 6 Grat; 405, 8. A residuary legatee was barred by lapse of time, though another suit was. pending by another legatee, to recover her legacy, and it was not ascertained until the decree in that case that there was a residuum. Ibid. 9. 'Testatrix bequeaths property to her married datughter for her separate use ; so much thereof as may be in existence at her death to go to her children, or their descendants, if any there be. And to effect the purpose 230 LAGACIBS AND LEGATEES. of the bequest, she appoints a trustee, to -whom the property is to be de- livered by the executor. And she directs that all receipts given to the trustee by the daughter for payments made to her of principal or interest of the property, shall be to him a full discharge. The daughter is entitled to use both the principal and interest of the property at her discretion. Brown v. Qeorge, 6 Grat; 424. Id. When legatees will be entitled to increased value and must bear the loss of slaves divided by commissioners under an order of court, the loss happening before the report is confirmed. Moore v. Thornton et als., 7 Grat. 99. 11. Specific legatees should be parties to a suit by residuary legatees against the executor for distribution of the estate unless it appears they have been paid. Nelson's ex'or v. Page el als., 7 Grat. 160. 12. What is conclu<3ed by a deeree against an administrator de bonis non of the heir of the executor, in a suit by legatees of the original testator. Sheldon et als. v. Armstead's adm'rel als., 7 Grat. 264. 13. When legatees may unite in a suit to enforce a decree in their favor. Ibid. 14. When legatees should be subjected before the executor. Ibid. 15. When legatees of the heir should be subjected before the legatees of an executor. Ibid. 16. Testatrix gives a legacy, and directs it shall be paid vrithin a year from her death. The legacy bears interest from the end of the year, though there is no hand to receive it. lA/on's udm'r v. Magagno's adm'r., 7 Grat. 377. 17. Where there is no hand to receive a legacy, the executor should invest it in an interest bearing fund, or bring into court to be invested. Ibid. 18. Th« legatee having died shortly after the testatrix, and before a quali- fication of her estase in this country, and there having been no qualification on the estate of the legatee for twelve years, the act of limitations of 1826, does not bar the claim for the legacy. Ibid. 19. A legatee Ijeing dead, a deetee for the distribution of the estate should be in favor of his personal representative, and not of his distributee. iMsterv. Middlecoffet als., 8 Grat. 54. 20. A testator devises a tract of land for payment of a particular debt, and the land is sold, but the creditor receives only the first payment of the purchase money, and the balance is applied to the payment of other debts af the testator. Whether or not the land was the primary fund for pay- ment of the particular debt, the debt was in fact the debt of the testator's LDGACIES AND LEGATEES. 231 estate, for which a legatee is respoasible on his refunding bond. Archer v- Archer's adm'r.^ 8 Grat. 539. 21. In a bill by persons claiming as legatees or assignees of legatees, against defendants as legatees or assignees of legatees under the same will, for distribution of the slaves bequeathed to the legatees jointly, the presumption is, in the absence of all pleadings and proofs to the contrary, that the persons made parties to the suit as legatees, are hot fictitious per- sons, or mere pretenders to the characters assumed in the proceedings. Ball et ah. v. Johnson's exors et als , 8 Grat. 281. 22. A testator gives his land to Ma wife for life, and at her death to his son J, and he gives his personal estate, after payment of his debts, to be equally divided among his eight children. The widow renounces the will, and takes her thirds of the real a,rjd personal estate. The rent of the two- thirds of the land not assigned to the widow, shall be applied to indemnify the legatees of the personal estate for the loss sustained by the widow's taking one-third of that fund. McReynolds v. Ommts et als., 9 Grat. 242. 23. After the legatees have been satisfied for the loss, or after the death of the widow, whichever event shall first occur, the said two-thirds is to be delivered to the remainderinan. Ibid. 24. The word " loan " in a legacy of personal estate, construed to mean " give." Parker and wife v, Wasley's ex'or et als., 9 Grat. 477. 25. A bequest of " all the money," held to include money deposited in a savings institution, but not debts due the testator. Babney et als. v. Cot- trelVs adm'r et als., 9 Grat. 572. 26. A testator charges his whole estate with the payment of debts. Lands devised and legacies must, contribute ratably to pay the debts. Mliott Y. Carter et als., 9 Ghfat. 541. 27. D and A have each five children, and R is the child of A. Testator regards R with great favpr, and gives him a farm and a legacy of $2,000. He then says, " I bequeath to the children of A and D, and to R, all the funds remaining after every just claim against my estate has been satisfied, to be equally divided between them." The fund is to be divided into ten parts, one of which is to be given to each of the children of A and D ; thus giving to R but one-tenth of the fund. McMaster v. McMaster's ex'ors, 10 Grat. 275. 28. What is an aesent to a legacy by an executor. Frazer's adm'r v. Bevill et als., 11 Grat. 9. 29. An executor, though he assents to a legacy, does not thereby dispense with a refunding bond. Nelson's adm'r v. Cornwell, 11 Grat. 724. 30. If an executor has assented to a legacy, and waived a refunding bond, the specific legatee may sue at law for his legacy. Ibid. 232 LEGACIES AND LEGATEES. 31. The statute of limitations cannot bar the legatees' claim to his specific legacy, whilst it is held as such by the executor, though he has long since assented to the legacy. Ibid. 32. Courts of equity have jurisdiction in all cases to compel the delivery of a specific legacy by the executor. Ibid. 33. A delay of seventeen years by a specific legatee to sue for his legacy, held under the circumstances, not to bar his claim. Ibid. 34. When a specific legatee is entitled to recover his legacy, though the executor has accounted for it to other parties under an award. Ibid. 35. When an assent to a legacy may be proved by one executor at the suit of the legatee, against the other executor and a purchaser under him. Frazer's adm'r v. Bevill et als., 11 Grat. 9. 36. When a contingent legatee of a remainder, may sue the legatee for life, and a purchaser under him to have the legacy forthcoming upon the happening of the contingency. Ibid. 37. Bonds of a legatee are given to him by the testator as a donatio mortis cousa, with the intention that the legatee shall not account for them. They are not an advancement in satisfaction of his legacy. Zee's ex'or v. Book, 11 Grat. 182. 38. Widow having renounced the will, and taken her distributable share of the personal estate, the property bequeathed to her is to be applied to compensate the legatees who are disappointed by her taking her distribu- table share of the personal estate. Findley's ex'orsv. Findley, 11 Grat. 424. 39. A legacy of a remainder in property, on condition that the legatee, a female, shall remain a member of the Society of Friends, there being but five or six single men, members of the society, in the neighborhood of the legatee, when she is of a marriageable age, is an unreasonable restraint upon marriage, and void. Maddox et al. v. Maddox's adm'r et als., 11 Grat. 804. 40. There being no bequest over, and no specific direction that upon breach of the condition, the legacy shall fall into the residuum of the estate, the condition is in ierrorem merely, and does not defeat the legacy. Ibid. 41. The bequest of a legacy being upon a condition requiring a reli- gious qualification, the condition is against the policy of the law of Vir- ginia, and therefore void. Ibid. 42. Quwre: Whether if the condition be a condition precedent, the legatee can take the legacy free from the condition ; or if the legacy lapses? And it seems the legatee will take the legacy of personal property ; and a devise of land would fail. Ibid. LIEN. 233 43. Testator by his will gave his wife a plantation, slaves, stock, &c., for life ; pnd he then added: it is understood that my wife is to keep my children, and raise them, and give them sufficient schooling. Held : 1st. The widow takes the bequest cum onere, and is bound to provide for the support and education of the children, in a manner suited to her cir- cumstances. 2d. But if one of the children goes to live with a married aunt, the widow being willing to keep the child and provide for her, the widow is not liable for the expenses of the child for board, clothing and education. Ibid. 3d. Executors pay the account out of the estate of the child in their hands and on her marriage, her husband gives them a receipt for the pay- ment. The widow is not liable to the husband and wife for the amount. Crawford's ex'or v. Patterson, 11 Grat. 364. LIEN. 1. A decree, in a proceeding by foreign attachment, against an absent debtor, directs that the home defendant shall pay out of a particular fund, and that the plaintiff shall execute to the absent debtor, a bond with the condition prescribed by the statute ; which is not done. The decree is no lien upon the real estate of the home defendant- Enders v. The Board of Public Works, 1 Grat. 364. 2. A decree in equity is a lien upon the equity of redemption of real es- tate, mortgaged for payment of debts. Ibid. 3. A deed executed before judgments have been obtained 'against the grantor, under which the purchaser has been put into possession, and has paid the purchase money, but which was not recorded until after the judg- ments were obtained is void as against such judgment creditors, and the land conveyed thereby is subject to the judgments. M'Clure v. Thistle's Sudors, 2 Grat. 182. 4. The land is equally subject, in such a case, to satisfy a creditor, who has issued a ca. sa. upon his judgment, upon the service of which, the grantor in the deed has been discharged as an insolvent debtor. Ibid. 5. A judgment is a lien upon the lands owned by the debtor at the date of the judgment; and the judgment debtor having obtained an injunction to the j-udgment, which was afterwards dissolved, and the surety in the injunc- tion bond having discharged the judgment on the injunction bond against him, he is entitled to the benefit of the creditors' judgment lien as against bona fide alienees of the land for value, subsequently to the original judg- ment. Badgers v. M'Cluer's Adm'rs et als., 4 Grat. 81. 234 LIEN. 6. The land last sold by the debtor is to be first applied to the satisfaction of the judgment. And this, though the last purchaser obtained a convey- ance before the first, the first having previously had a good equitable title. Ibid. 7. A judgment creditor may subject his debtor's equitable interest in land sold by him, for the purchase money unpaid. Withers v. Oartei- ei als., 4 Grat. 407. 8. A purchaser of land, subject to the lien of a judgmeut is entitled to have the purchase money applied to satisfy the judgment. Ibid. 9. The original vendor has a lien on land sold for the unpaid purchase money, in the hands of the second vendee, although the second vendee had obtained the legal title and had no notice that the original purchase money was unpaid, if at the time of the sale to the second vendee, his vendor had not the legal title. Burnes' ex'rs et ah. v. Campbell, 4 Grat. 125. 10. A tract of land is subject to a mortgage ; the part last sold is prima- rily liable to satisfy the mortgage. Menkl^s ex'r, <&c. v. Allstadt et als., 4 Grat. 284. 11. A father, indebted, purchases land, which is conveyed-to the son, who gives a deed of trust to secure the balance of the purchase money. A de- cree against the father is a lien upon the whole equitable interest in the land. Burbridge v. Higgins' adm'r, 6 Grat, 119. 12. The lien is upon the land not only for the money of the father vested in the purchase, but for the whole interest in the land after the payment of the balance of the purchase money. Ibid. 13. A creditor may come into equity to enforce the lien of a decree upon land, though the decree has never been revived against the administrator of the debtor, and no execution has issued upon it. Ibid. 14. Among creditors proceeding by foreign attachment, the creditor whose subpoena is first sued out and served, is entitled to priority of satis- faction. JFarmers Bank v. Day et ah., 6 Grat. 360. 15. The attachment only operates as a lien upon the debts and effects of the absent debtor, in the hands of the home defendants against whom it is issued and upon whom it ifl served. Ibid. 16. An attachment served upon the tenant of the absent debtor, is a lien only on so much of the rents as are due from the tenant at the time of the service ; and not upon rents falling due afterwards. Haffey, dx. v. Miller, &c. 6 Grat. 454. 17. Property covered by various deeds of trust, which may be enforced at different periods, having been sequestrated at the suit of a judgment creditor of the grantor, when the court disposes of the trust subjects, and LIEN. 235 the rents and profits thereof, the judgment creditor will only be entitled to the rents and profits of the different trust subjects up to the earliest period when either of the valid encumbrances covering the subject, was authoriz- ed to be enforced. And the different incumbrancers will each be entitled to the rents and profits of the subject covered by his deed, from the time he was authorized by the terms of the deed, to enforce it. Lewis et als, v. Ga- perton's ex'ors et ah. 8 Grat. 148. 18. A vendor of lands retains the title in accordance with the contract. He has a lien on the land for the purchase money, as against creditors and incumbrancers of the vendee, and this, though the vendee has subsequent- ly executed s^ deed, by which he conveys other property to secure the pur- chase money. Ibid. 19. There being several deeds conveying in succession the same proper- ty, and not merely the equity of redemption therein, every successive in- cumbrance binds all the property not absorbed in satisfaction of previous v&,lid incumbrances. And if some of the incumbrances are declared void at the suit of a creditor of the grantor, such creditor is not entitled tp have his debt substituted in the place of such void incumbrance to the ex- tent thereof; but the subsequent valid incumbrances have preference, lb. 20. A forfeited forthcoming bond is a lien on the lands of the obligor from the time it is returned to the clerk's office. Jones, dsc. v. Myrick's ex'ors, 8 Grat. 179. Myrick's ex'ors v. Epes et als. Id. 21. The lien of a forfeited forthcoming bond returned to the clerk's office during the term, and on which execution is awarded, does not relate to the first day of the term. Ibid. 22. Though a forthcoming bond is forfeited and not quashed, yet in equi- ty the lien of the original judgment continues. Ibid. 23. Lands subject to the lien of a judgment, which have been sold or en- cumbered by the debtor, are to be applied to the satisfaction of the judg- ment in the inverse order in point of time of the subsequent incumbran- ces. Ibid. 2i. A debtor contracts to give a lien on two adjoiiiin^ tenements to se- cure a debt, and the creditor is in possession of one of the tenements, un- der an agreement by which the rent of the tenement is to be taken in sat- isfaction of the interest of the debt. Afterwards the debtor becoming em- barrassed, conveys all his property in trust, to pay his debts. The creditor is entitled to enforce his equitable lien not only a,gainst the debtor, but bis creditors. CWs ex'ix v. King et als., 8 Grat. 224. 25. The lien of attachment levied upon the interest of a wife in her fa- ther's estate in the hands of the executor, is terminated by the death of the husband pending the proceedings, his wife surviving him. Vance v. Mb- La/ugJilin's adm'r, 8 Grat. 280. 236 LIFE ESTATE— LIMITATION OF ESTATES. 26. A case in ■which, between two equities, the junior was preferred. Cox et dl. V. Bomine, 9 Grat. 27. 27. The vendee being insolvent, a contract between one of the executors of the vendor, and the second purchaser, which is doubtful in its import, will not be construed into an agreement to release the vendor's lien upon the land for the purchase money. Stuart's ex'ors v. Abbott et al. 9 Grat. 252. 28. If one of the executors does contract to release the lien, it being the only security for the debt, it will not be enfiyced in a court of equity against the executors. Ibid. 29. A judgment is a lien upon lands in the hands of a purchaser, though at the time of the purchase, the judgment was enjoined. And this, though the judgment was not docketed, the purchaser having had notice of it. Craig v. Sebrell, 9 Grat. 131. . 30. Bonds assigned, being for the purchase money of a part of a tract of land, and the vendor selling the other part to a, third person, the assignees being defeated in the recovery of the money from the vendee, whose bonds they held, have no lien on the purchase money of the other part of the tract. Ragsdale v. Magy and others, 9 Grat. 409. See Judgments. LIFE ESTATE. A purchaser of a life tenant's interest in a slave sells her. He must ac- count with the remaindermen for the value of the slave at the death of the life tenant, unless they consented to the sale. Moore v. Thornton et als., 7 Grat. 99. LIMITATION OF ESTATES. 1. A testator gives an express estate in fee, in real and personal "proper- ty, to each of his five sons ; and then directs that " if any or either of his five sons die without issue living at the time of his death, all the estate, real and personal, of every such child shall be divided equally between the survivors or their representatives, according to the principles of the law of descents." On the death of one of the sons, without issue, the estate passes to the surviving children and to the descendants of such as are dead ; the latter taking, as purchasers under the will, the share which the parent would have taken if alive. Dickinson v. Hoomes, 1 Grat. 302. 2. A testator after directing that all his estate shall be equally divided among his children adds : " it is my desire that if any of my children should LIMITATION OF ESTATES. 237 die before they attain to lawful age or without a lawful heir, in either case, that all such property, aa they may receive in the division of my property, return to my surviving children or their lawful heirs." Held, — 1'. The limi- tation over takes effect upon the happening of either contingency. 2. The limitation does not operate to transfer the estate a second time. Brooke v. Groxton et cds., 2 Grat. 506. 3. A testator devises as follows: "I lend to my daughter Lucy my negro woman Sydney and her child Sarah, and negro hoy named John, to her du- ring her natural life, and to her heirs lawfully begotten on her body ; and should my daughter or her husband dispose of, convey out of the way, con- ceal or attempt to alienate the negroes aforesaid, I do hereby declare her title to cease and direct my executors to take them into possession. And in such case, after her decease, they and their increase to be divided among her children, if any living ; otherwise to be divided among my children, J, E, P and C, and their heirs. Held : The daughter Lucy had but a life-es- tate in the slaves, and h^r children took in remainder as purchasers under the will. Pryor v. Duncan, 6 Grat. 27. 4. F, by his will, devises as follows : " I direct that my son P and my daughter E shall have the whole of my real estate, consisting of one hundred and four acres of land, during their natural lives, that is, if they remain single ; but if either of them shall marry, either him or her, then his or her claim or benefit of the aforesaid land to be void ; or if they both shall marry, then the land is to be sold as hereinafter directed." The after direction is : " That if P and E shall live and die single, then the land given to them for their lives shall be sold and the proceeds divided among the tes- tator's children, and the- children of such as are dead. On the death of P unmarried, B takes the whole of the land whilst she remains unmarried. Fawver v. Fawver, 6 Grat, 286. 5. Prior to 1819 a testator devises to his three daughters by name his es- tate, both real and personal, to them and their heirs lawfully begotten of their bodies. And in case either of my daughters should die without heir or heirs as above mentioned, the surviving ones to enjoy their equal part. This is an estate tail, which by the statute is converted into a fee ; and the limitation over is after an indefinite failure of issue, and void; Nowlin and wife V. Winfree, 8 Grat. 346. 6. On a devise or bequest over to survivors at the death of a devisee or legatee for life, in the absence of any expression of a particular intention on the part of the testator, the survivorship has relation to the death of the testator. Martin's adm'r, &c. v. Kirhy, adm'r, &c., et als, 11 Grat. 67. 7. The testator gives all his estate, real and personal, to his wife for and during her widowhood ; and he directs that at her death all his estate shall be sold and equally divided between all his surviving children and their heirs. The children living at the death of the testator took a vested inter- est in the estate. Ibid. Missing Page LIMITATIONS— STATUTE OF. 239 * an actual possession by residence, improvement, cultivation or other noto- rious and habitual acts of ownership for twenty-five years before suit brought. Taylor's Devisees v. Burnsides, 1 Grat. 1S5. 3. If the tenant or those under whom he claims, have abandoned their profession, within the twenty-five years, the statute is no bar to the de- mandant's title under his elder patent. Ihid. 4. The statute is not a bar, if the demandant, or those under whom he claims have, within twenty-five years before bringing the action, entered upon the land in controversy, and taken adversary possession thereof. lUd. 5. The act 16th April, 1831, Sup. Rev. Code, ch. 109 1 31, p. 148, which limits the right of appeal to the Court of Appeals to five years, applies to the Commonwealth. Commonwealth v. Moore, 1 Gtrat. 294. 6. The act 8th March, 1826, Sup. Rev. Code, ch. 200, ? 1, p. 260, for the limitation of actions against persons acting in a fiduciary character, only begins to run from the time, when the liability sought to be enforced, arises. Cookus V. Peyton's ex'or., 1 Grat. 431. 7. The statute will not bar a suit by one partner against another, where it appears there were good debts outstanding, within five years before suit brought. Marstdler v. Weaver, 1 Grat. 391. 8. A vendor of real estate, retaining the title, the statute of limitations cannot be set up as a bar to his recovery of the purchase money. Hop- kin's adm'r v. Oockerell et als, 2 Grat. 88. 9. The statute being pleaded by a defendant to a part of plaintiff's claim, and sustained, defendant's claims of same nature not allowed to be set off against plaintiff's specialty claims. White v. Turner's adm'x, 2 Grat. 502. 10. A fraudulent trust has been partially executed by the trustee, who does not refuse to complete it. The trust property having come into the hands of a part of the eestuis que trust, on a bill filed by the others to have the trust executed, against the eestuis que trust in possession, the statute of limitations is no bar. Turner and wife v. Campbell et als, 3 Grat. 77. 11. Judgments against absent debtors repel the statute upon the origi- nal cause of action. Roote's ex'ix v. Tompkin's trustees, 3 Grat. 98. 12. The limitation of seven years applies to decrees (so far as they op- erate upon a subject within the jurisdiction of the court) against absent debtors. Ibid. 13. The vendor of land having retained the title, the statute will not bar a suit for specific performance, and to subject the land to the pay- ment of the purchase money. Sanna v. Wilson, 3 Grat. 243. 240 LIMITATIONS— STATDTE OF. • 14. The statute does not apply to a suit by a ward, after coming of age, against the surety of the guardian, the ward having been delayed for more than ten years in prosecuting a suit against the administratrix of the guar- dian. Roberts v. Oolvin, 3 Grat. 358. 15. Property conTeyed in a deed of trust is taken and sold : after five years the purchaser is protected by the statute against the action of the trustee or cestui que trust to recover it. Sheppards v. Turpin, 3 Grat. 373. 16. A merely constructive trustee may protect himself by the statute. Ibid. 17. When the action of the trustee against third persons for the recovery of the trust property is barred by the statute, the action of the cestui que trust is equally barred. Ibid. 18. The act 1 Eev. Code, ch. 128, g 5, 489, limiting proceedings on judg- ments, applies to judgments "when assets," or "if assets," and begins to run from the date of the judgment. Braxton v. Wood's adm'r, 4 Grat. 25. Smith's adm'r v. Charlton's adm'r, 7 Grat. 425. 19. A suit upon a judgment suspends the operation of the statute daring its pendency, but if it is dismissed, it will not prevent the bar of the statute to another suit by the same plaintiff after its dismissal. Braxton v. Wood's adm'r, 4 Grat. 25. 20. A direction in the will of the testator thai; his debts shall be paid will not prevent the bar of the statute as to personal estate. Ibid. 21. It seems that for the statute of limitations to be a good defence for the tenant in a writ of right, his possession must be adverse to, and not under the title of the demandants. Bobinett v. Preston's heirs, 4 Grat. 141- 22. A co-parcener or tenant in common cannot protect himself by the statute of limitations against a co-parcener or co-tenant without an actual disseisin or ouster. Furcell and wife et als v. Wilson, 4 Grat. 16. 28. Trustees, by authority of an act of Assembly, sell and convey land, reserving a ground-rent to be paid to the proprietor of the land when he shall be ascertained. The statute does not bar the recovery. Mulliday v. Machir's adm'r, 4 Grat. 1. 24. The act limiting appeals to the court of appeals refers to the time of presenting the appeal to the court or judge in vacation; and.if the petition is presented within five years from the date of the judgment or decree, the appeal is not barred by the statute. Williamson v. Gayle et als, 4 Grat. 180. Sed vide Tarborough and wife v. Deshazo, 7 Grat, 374. 25. The statute limiting the recovery of mesne profits may be given in LIMITATIONS— STATUTE OF. 241 evidence on the trial of a writ of right. Purcell and wife et als v. Wilson, 4 Grat. 16. 26. Where a defendant does not file a plea of set-off, but files his account and gives notice of set-off, the plaintiff cannot reply the statute of limita- tions, and he may therefore rely upon it in evidence. Tnmyer \. Pollards, 5 Grat. 460. 27. If the set-off accrued before the action was brought, the period of limitation is five years before the commencement of the action. Ibid. 28. If the set-off accrued after the action was brought, the period of limitation is five years before plea pleaded, or account of off-sets filed. Ibid. 29. An endorsement of a note payable on demand, imports a guarantee of the note according to its terms, which cannot be altered by parol proof; and if an action on the guarantee is not brouglit within five years from the date of the note, it is barred by the statute of limitations. Waison\. Hurt, 6 Grat. 633. 30. Decree against administrator de bonis nan appealed from and af- firmed. As plaintiffs had no right to proceed against the prior executor's estate to have satisfaction of the decree until it was affirmed, the act of limitations of 1826 did not begin to run in favour of the prior execu- tor's estate until then. Sheldon et als v. Armistead's adm'r et als, 1 Grat. 264. 31. When the act of limitations of 1826 will protect the sureties of an administrator de bonis nan. Ibid. 32. A judgment quando acciderini does not come within the operation of the statute of limitations in relation to judgments. Smith's adm'r v. Charl- ton's adm'r, 7 Grat. 425. 33. A legatee having died shortly after the testatrix, who lived abroad, and before a qualification on her estate in this country, and there having been no qualification on the estate of the legatee for twelve years, the act of limitations of 1826 does not bar the claim for the legacy. Lyon's adm'r V. Magagnos' adm'r, 7 Grat. 377. 34. If upon appeal from a final judgment, &o., the appeal bond is not given within five years from the judgment, &c., the appeal will be. dis- missed. Yarborough and wife v. Deshazo, 7 Grat. 374. 35. The proviso in the act, Code, ch. 149, ? 19, p. 540, does not extend to the law limiting and regulating appeals. Ibid. 36. Covenant between the maker and holder of a note that the note is to be held by the maker until his liability as bail of the holder ceases, and 242 LIMITATIONS— STATUTE OF. that he then shall deliver it. The statute of limitations does not run from the time the covenant was executed until the liability of the maker as bail ceased. Bowles' ea^or v. Elmore's adm'x, 7 Grat. 385. 37. A promise which will remove the bar of the statute of limitations must be a promise to pay a particular debt. A promise to settle with the claimant is not enough. Bell v. Crawford, 8 Grat. 110. 38. If a part payment will take a case out of the statute, it must he a payment upon the specific debt, and not a payment upon account. Ibid. 39. The statute of limitations does not commence to run against the owners of the remainder in slaves, in favor of a purchaser of the life es- tate, until the death of the life tenant. Ball et als v. Johnson, enfor et als, 8 Grat. 281. 40. A claim by an administrator for services rendered his testatrix, was barred by the statute as to all due more than five years before a suit brought against her in her life time. Jones v. Jincey et aU, 9 Grrat. 708. 41. In an action of assumpsit against an administrator, he pleads the statute of limitations. It is no answer to the plea that the defendant's in- testate sold to the plaintiff, slaves in payment of the debt declared on ; and that the defendant, since the death of his intestate, had as administrator sued for, and, upon the title alone, without regard to the intestate's indebt- edness to the plaintiff, recovered the said slaves from the plaintiff within five years before the action brought. Johnson's ex'x v. Jenning's adm'r, 10 Grat. 1. 42. A party having conveyed slaves to his step-son, stating a valuable consideration in the deed, and remaining in possession for many years his possession is subordinate to the deed, and therefore, the step-son's title to the slaves is not barred by the statute of limitations. Roberts v. King, 10 Grat. 184. 43. The saving in the act of 1819, 1 Kev. Code, ch. 104, ? 13, p. 378, in relation to wills, in favor of persons out of the State, is not repealed by the act of March 8th, 1826, Sup. Rev. Code, p. 260, in relation to the lim- itation of actions. Schultz v. Schultz et als, 10 Grat. 358. 44. From the time that land is forfeited to the Commonwealth, under the act of 1835, Sess. Acts, p. 11, time will not run in favor of a parly in possession, against the Commonwealth or those claiming under her by patent. Staats v. Board, 10 Grat. 400. Hale v. Branscum, id. 418. 45. K, the owner of a slave for life in 1836, sells him to M, who in the same year sella him to J, who gives him to a daughter, by whom he is taken out of the State. K. dies in 1846, and then the owners of the re- mainder in the slave bring trover against M to recover the value thereof. Held : The plaintiffs cannot maintain trover against M ; and if the sale LIMITATIONS— STATUTE OF. 243 l)y M gave the plaintiffs the right to bring trover against M, the action is barred by the statute of limitations. Philips et als v. Martenei^s ea?oj*j 10 Grat. 333. 46. No time runs against the Commonwealth. Levasser v. Washhirn, 11 Grat. 572. 47. Though the statute had commenced to run against the true owner of land, yet upon a forfeiture under the delinquent land laws, it ceased to run until it was sold by the commissioner of delinquent lands. Ibid. 48. The statute cannot bar a legatee's claim to a specific legacy whilst it is held as such by the executor, though he had long since assented to the legacy. Nelson's adm'r v. Comwell, 11 Grat. 724. 49. A decree obtained against an absent defendant by fraud is not pro-, tected after seven years, by the act, 1 Rev. Code, 1819, p. 475, §4. Evans et ah V. Spurgin et als, 11 Grat. 615. 50. W, administrator of S, assigns the bond of T to the executor8.of H, in discharge of a debt due from S to H. The executors sue T, and re- cover a judgment, and he enjoins it on the ground that S owes him for a legacy left him by R, of whom S was the executor, and the injunction is perpetuated. In this injunction suit, the executors of H and W, and the administrator de bonis rum of S are parties, and the decree perpetuating the injunction is by consent, and they also consent to a decree, directing an account of S's estate by his administrator. Ten years after the decree, a second administrator de bonis non of S, enters into a contract under seal, to pay the debt out of the assets when received, and the executors of H agree to wait one year, to release their costs in the suits, and dismiss it asr tu them ; but the administrator was not to be bound personally, and tlio executors were at liberty, if the money was not paid in the year, to cancel the agreement, and proceed to enforce any of their existing remedies! The administrator did not collect assets within the year, and the executors sued in equity upon the agreement. Held: 1st. Though the right of the executors' of H to proceed against S's es- tate, accrued when the injunction was perpetuated, yet the pendency of that suit carried on for their benefit, prevented the running of the statute of limitations against them. 2d. Though it is generally true that an executor or administrator can- not create a new cause of action against the estate, yet he may make a valid promise to pay a debt not barred by the statute of limitations, out of the assets of the estate, on which a suit may be maintained. Braxton's adm'r v. Harrison's ex'ors, 11 Grat. 30. 50. The statute applies to a debt by parol, contracted by a party then living in Virginia, but who soon thereafter removed from the State, and* 244 LIS PENDENS. remained out of it until his death. Markle's adm'r el als v. Burch's adm'r, 11, Grat. 26. 51. A trust deed to secure a debt provides that the grantor shall retain the property until a certain time. Before that day he agrees to sell it at a certain price, and if the money and interest is not returned within twelve months, the agreement to stand as a bill of sale ; and he delivers the property. Within five years from the time when the trustee might take the property, and from the end of the twelve months, but not from the date of the agreement, the trustee, who j^d no notice of the sale, takes possession of it and sells it to pay the debt. The title of tlie purchaser was not perfected by the lapse of time ; and the trustee was entitled to take possession and sell under the trust deed. Oolvin v. Menefee, 11 Grat. 87. 52. A party takes possession of land, claiming it under a lost will; and he files a bill to set up the will, which is afterwards dismissed for want of eeourity for costs. The statute having commenced to run, the pendency of this suit did not stop it. Oaperion et als v. Gregory et als, lessee, 11 Grat. ,505. 53. The statute runs against femes covert and their husbands, so as to bar a recovery during coverture. Ibid. 54. The infant children of a female heir, who died a feme covert, are barred after three years from the death of their mother, though they may continue infants all the time. Ibid. 55. Upon a bill by the other heirs for partition against the party in pos- session, they are required to establish their title at law.. If there was any equitable ground to repel the bar of the statute, the coart in directing them to establish, their title at law, should have given effect to it in its th'der ; but this not having been done, the estate must have its legal effect on the trial at law. Ibid. Se5 Adveesary Possession. LIS PENDENS. 1. Land on which an annuity is charged, having been sold pending a suit to recover the arrears of the annuity, it will be directed to be sold to eiatisfy the arrears of the annuity, without noticing the pendente lite pur- chaser. Philips et als. v. Williams, tfec, 5 Grat. 259. 2. A creditor of a deceased debtor sues heirs residing abroad to marshal the assets and subject lands or their proceeds in the State, descended to them. The lands have been sold under a decree at the suit of the heirs and are in the hands of a commissioner of the court, who is also administrator LOAN.— MANDAMUS. 245 of the deceased debtor. Though this person is a p&rty as administrator, to the creditors suit, yet not being a party as commissioner, if he has nrf knowledge of the object of the suit and pays over the money to the heira under the order of the court, whose commissioner he is, he will not be affected by the lis pendens of the creditors suit, so as to be held liable to pay it over again to the creditor. Carrington et als. v. Didier, Norvell <& Co., 8 Grat. 260. LOAN. 1. A loan can not be converted into a gift by the neglect of the agent' conveying the property to the loanee, to inform him that it was intended aS a loan. Dickinson v. Dickinson's adm'r et als. 2 Grat. 493. 2. Leaner dies within five years from the date of the loan and by his will disposes of the property loaned, of which the administrator of the loairee has notice. The property may recovered after five years from the loan. Ibid. 3. A slave is loaned and remains in possession of the loanee for uiorQ than five years, and then the lender takes possession of him, creditors of the loanee may subject the slave to satisfy their debts. Taylor v. Beale et als., 4 Grat. 93. 4. A debtor remaining in possession of slaves for five years under a, parol loan, they are liable to satisfy his creditors, though possession ig resumed by the lender, before executions are levied upon them. Beale v, Digges et als., 6 Grat. 582. See Contracts and Enders v. Board or Public Works, 1 Grat. 364. MANDAMUS. 1. A writ of more&mMS should not be awarded -in any case where therel' is another remedy. Ooolshy, ex parte, 2 Grat. 575. ' 1 2. The Supreme Court of Appeals has no jurisdiction either under the constitution or by statute, to issue a mandamus to a judge of a Circuit Court to compel him to try a cause depending in his court. Bamett vi Meredith, Jadge, 10 Grat. 650. 3. A free negro convicted of the misdemeanor of remaining in the State, in violation of ? ? 8, 9 ch. 198 of the Code, is entitled as of right to an appeal from the decision of the justice, to the court of the county or corpor ration in which his conviction was had, and if the appeal is refused by the justice, he may have relief by mandamus from the Circuit Court ; and if the Circuit Court refuses the mandamus, an appeal lies to the Court of Appeals. Morris, ex parte, 11 Grat. 292. ^6 MARRIAGj;.— MARSHALLING ASSETTS. 4. It seems that the county court will be compelled by mandamus to act vpon an application for a license to keep a tavern, but will not be com- pelled to grant it. Teager, ex parte, 11 Grat. 655. MARRIAGE. 1. Upon a prosecution for marriage, within the prohibited degrees, parties may appear by attorney and plead guilty, and the court may thereupon pronounce sentence of nullity. Kelly v. Scott, 5 Grat. 479. ' 2. A judgment declaring a marriage nuU is valid, though it does not l^roceed to punish the parties. Ibid. 3. A marriage within the prohibited degree being declared null, the hus- band has no interest in the property which was the property of the wife at the time of the marriage. Ibid. 4. A legacy of a remainder in property, upon condition that the legatee, a female, shall remain a member of the society of friends ; there being but ^ve or six single men, members of the society, in the neighborhod of the legatee, when she is of marriageable age, is an unreasonable restraint upon riiarriage and void. Maddox et als. v. Maddox's adm'r et als., 11 Grat. 804. 5. There being no bequest over and no specific direction that upon breach of the condition, the legacy shall fall into the residuum of the estate, the condition is in terrorem merely, and does not defeat the legacy. Ibid. MARSHALLING ASSETTS. 1. The creditor of a deceased debtor may proceed in equity against his heirs residing abroad, as absent defendants, to marshal the assetts and thus subject the lands or its proceeds, in the State, descended to them from the debtor. Cunningham v. Bidier, Norvell & Co., 8 Grat. 260. 2. If the land has been sold under a decree, in a suit by the heirs, and the proceeds are in the hands of a commissioner of the court, he should be a party as such, and be restrained by injunction from paying away the money in his hands. Ibid. 3. Though the commissioner is a party as administrator of the deceased debtor, if he has, in fact, no knowledge of the object of the suit and pays over the money to the heirs, under an order of the court, whose commis- sioner he is, he will not be liable to pay it again to the creditor. Ibid. 4. A principal executes a bond, binding his heirs to his surety, as MESNE PROFITS.— MILLS. 247 endorser, with condition that he will, when requested by the bank or the surety, pay off the notes, and so indemnify and save the surety harmless ; and he dies leaving the notes not yet due, which are protested as they fall due, and are afterwards paid by his administrator. The surety being entitled to resort to both the real and personal estate, and the notes having been paid out of the latter, the simple contract creditors arc entitled to have the assetts marshalled, to the extent of the notes so paid, if they do not exceed the penalty of the bond. Oralle et als. v. Meem et cds., 8 Grat. 496. 5. Upon a bill by simple contract creditors to marshal assetts, it is com- petent for the court, in its discretion, to decree a sale of real estate in the hands of the heirs, though some of them are infants, for the payment of the debts. But it is premature to decree a sale before adjudicating the claims of the creditors, and so ascertaining the amount of the debts chargeable upon the lands of the decedent. Idem, 496. MESNE PROFITS. Persons who have been held as slaves, recovering their freedom, are in no case entitled to recover mesne profits. Peter et als. v. Margrave et als., 5 Grat. 12. MILLS. 1. On an application for leave to build a mill or other machine, the petitioner must show he has proceeded in the mode prescribed by law, for his particular case. Whitworth et ux. v. Puckett, 2 Grat. 528. 2. If a party applying for leave to build a mill owns the land on only one side of the stream, the proceedings should be under J § 1, 2, 3, ch. 235, 2 Rev. Code ; and if in such case he proceeds under ^ 4 of the act, the Court should quash the writ and inquisition. Ihid. 3. If it appears upon the hearing of the case, that a greater quantity of the land adjoining will be overflowed by the erection of the dam, than the jury estimated, the inquisition should be quashed and a new writ directed. Ibid. 4. The county court has no authority to increase or diminish the damages to the adjoining proprietors, assessed by the jury. Ibid. 5. The applicant for leave to erect a mill or other machine, is not entitled to the ownership of the land overflowed by the erection of the dam, upon paying the damages assessed by the jury. Ibid. 6. A jury of inquest in a mill case are induced, by the opinions expressed 248 MILLS. and facts stated by the father of the applicant, to report that no person will sustain damage from the dam allowed to be built, and the inquisition is confirmed by the court. This inquest and judgment is no bar to an action for damages sustained by the father against a vendee of the mill, which were not actually foreseen and estimated by the inquest. Calhoun v. Palmer,-?, Grat. 88. 7. The defendant relies on the inquisition and judgment authorizing the dam, as the grounds of his defence; he cannot, therefore, deny the owner- ship of the land by the applicant for the mill. IMd. 8. The conduct of the father does not defeat his right to recover damages for the injury he has sustained. Ibid. 9. Where a mill owner does not raise his dam at first as high as he is authorized to do, that will not preclude him from raising it to the full height authorized by the inquest, provided he does not thereby occasion injury to others. Ihid. 10. The father having united in the conveyance of the mill to the yendee, he cannot recover damages for any injury done to him by the erection of the dam, to the extent the injury existed at the time of the conveyance. Ibid. 11. In a petition for leave to erect a dam, the petition, which was ore terms, states that the applicant is owner of the b?\nks on both sides of the stream. This is, in efifect, a statement that he is owner of the land. Mairs v. Gallahue, 9 Grat. 94. 12. The petition states that the applicant desired a writ of ad quod damnum to issue, for the purpose of erecting a grist mill, &c. This is a sufficient compliance with the statute. Ibid. 13. When, upon a fair and reasonable construction of the inquisition, it is substantially responsive to the requirements of the statute, that is suffi- cient. Ibid. 14. When neither the petition nor the order of the court directing the writ of ad quad damnum to issue, specifies the height of the dam proposed to be erected, it is proper for the jury to specify it in the inquisition. Ibid. 15. There is an exception for the refusal of the county court to continue the cause, on account of the absence of a material witness. On appeal to the circuit court by the exceptant, the witness is present and examined, and the judgment of the county court is affirmed. The want of the witness' testimony in the county court, is no ground of complaint in the court of appeals. Ibid. 16. An exception is taken to the judgment of the county court authori- zing the erection of the dam, on the ground that it will be injurious to MINISTERS OF THE GOSPEL.— MISTAKE. 249 the health of the neighborhood, and the evidence is stated. The circuit court passes upon that question upon full evidence, and there is no excep- tion. The court of appeals must presume these courts decided right. lUd. 17. The judgment of the court, giving leave to erect the dam, provides that the applicant shall keep a ferry boat at the crossing of a public road over the stream across which the dam is to be erected. This is authorised by the act, 2 Eev, Code, p. 277, ^ 5 ; and as the county and circuit courts have held, upon the proofs, that a ferry boat will be sufficient to accommodate the public, the court of appeals will presume they acted rightly, nothing being shewn to the contrary. Ibid. 18. The duty of keeping up the ferry boat is not merely personal to the grantee of the privilege of erecting the dam, but it is a condition and inci- dent of the grant, and attaches to it, into whatever hands it may pass Ibid. 19. The kind of boat to be kept must be such an one as the exigencies of the travel and trade on the road shall require. Ibid. 20. It is the duty of the party required to keep up the ferry boat to ferry the pubj^e over the stream without charge. Ibid. MINISTERS OP THE GOSPEL. The salaries of ministers of the Gospel are not taxed under the act of February 28th, 1846. Plumer's case, 3 Grat. 645. MISTAKE. 1. A court of equity will correct a mistake, either of law or fact, made by the scrivener in drawing a deed, against bona fide creditors of the grantor. Alexander <& Co. v. Newton et ah., 2 Grat. 266. 2. Under a mutual mistake of the parties, as to the interest of the vendor in the land sold, a court of equity will, under the circumstances, set aside the sale entirely. Irick and wife v. Fulton's elisors., 3 Grat. 193. 3. A grantor in a deed intended for the benefit of the cestui que trust, may maintain a suit to set aside the deed, and have the trust deed cor- rected, on the ground that it was not prepared according to her directions, and does not efiect her intentions. Shepherd v. Henderson et als., 3 Grat. 367. 4. If, owing to a want of skill or mistake of the draftsmen, the deed has 250 MISDEMEANOR. failed to carry out the clear intent of the parties, as manifested on its face, a court of equity will not interfere to defeat the intent of the parties, but will leave the creditor to his legal remedies; if he has any. Perking trustee v. Dickinson & Co., 3 Grat. 335. 5. A court of equity will enjoin a judgment, and grant a new trial on the ground of mistake by the jury, ascertained by after discovered evidence. Bust et als. v. Ware, 6 Grat. 50. 6. Under the circumstances, a new trial was awarded on the testimony of jurors, that they rendered their verdict under a mistake as to its legal effect. Moffet v. Bowman, 6 Grat. 219. 7. A party to a compromise entered into in ignorance of important facts connected therewith, will not be held to be bound by it. Bass' ei^or v. McLauchlan's adm'r et als., 7 Grat. 86. Same v. Maden's adm'r. id. 8. A mistake in respect to the title to land is no ground for relief to a purchaser, where he purchased the land without agreement, express or implied, for a conveyance with warranty of title. Sutton v. Sutton, 7 Grat. 234. 9. The object of a trust being to sell for what the property will bring, and there being no warranty by the grantor of either title or quantity, the purchaser is not entitled to relief for a mistake in the estimated quantity of land. Ibid. 10. Under the circumstances, a court of equity restricted the assignment of a security to the purpose of fully satisfying the assignee for the purpo- ses of the assignment ; the assignment having been made by the assignor under a misapprehension of the amount of the security. Jennings v. Palmer, 8 Grat. 70. 11. In a written contract for the sale and purchase of land by the acre, the purchaser will not be relieved in equity on the ground of mutual mistake as to the boundaries of the land, unless the mistake is fully and clearly proved. Lea's ex'or v. Eidson, 9 Grat. 277. MISDEMEANOR. 1. The false swearing before a clerk that a person applying for a mar- riage license is over twenty-one years of age, whereby the porson applying is enabled to obtain a marriage license and the marriage takes place, is a misdemeanor, but not perjury. Matthew Williamson's case, 4 Grat. 554. 2. On a prosecution under the act of 1847-'8, ch. 10, ? 24, for furnishing a free person who, by speaking or writing shall maintain that owners have no right of prope.ty in their slaves, it is incumbent on the Commonwealth MORTGAGE. 251 to show that in the alleged speaking, the defendant denied the right of owniTS to property in their slaves, and also to show that that denial was maintained hy him. The language must plainly express the denial, or in its plain meaning necessarily imply it. Bacon's case, 1 Grat. 602. 3. A presentment for a misdemeanor is the commencement of the prose- cution ; and unless the prosecution is then barred by the statute of limita- tions, it will not be barred by the failure to file an information or indict- ment on the presentment before the time of limitations runs out. Chris- tian's case, 7 Grat. 631. 4. In cases of misdemeanor, the court has authority to discharge the jury without the consent of the defendants. Bye's case, 7 Grat. 662. 5. Though the mere breaking and entering the close of another, is not a misdemeai:or, yet if that entry is attended by circumstances constituting a breach of the peace, it will become a misdemeanor for which an indict- ment will lie. Henderson's case, 8 Grat. 708. 6. The going upon the porch of another man's house, armed and from thence shooting and killing a dog of the owner of the house, lying in the yard, in the absence of the male members of the family, and to the terror and alarm of females in the house, is a misdemeanor for which an indictment will lie. Ibid. MORTGAGE. 1. A court of equity may sequestrate the rents and profits of mortgaged or encumbered property, where a forfeiture has accrued ; and such rents and profits are necessary to discharge the incumbrances. Clarke v. Curtis, 1 Grat. 289. 2. Thd rents and profits received by the mortgagor or equitable owner, in possession, or which have accrued before an order of sequestration is made, can not be recovered from him by the mortgagee, or vendor. Ibid. 3. A mortgage by a public company to secure a loan, made by authority of an act of the legislature held to be valid. Enders v. The Board of Public Works, 1 Grat. 364. Qucere: If a mortgage by a public company, which may disable it from performing its duty to the public, would be valid without an express' authority from the legislature. Ibid. 4. A married woman having given a mortgage on her separate estate to secure a debt, afterwards obtains a further loan from the creditor. Her trustee will not be allowed to redeem the mortgage without paying the debt subsequently contracted. Woodson trustee v. Perkins et als., 6 Grat. 615. ,252 MOTIONS.— MULTIFARIOUSNESS— MURDER. 5. When a mortgagee may come into equity for relief against a claimant of the mortgaged property, instead of trying the question at law. Henley's adm'r t. Perkins et ala., 6 Grat. 615. See Trusts and Trustees. MOTIONS. 1. A motion may be made by a high sheriff against his deputy, for failing to pay money received on an execution, though the high sheriff has discharged the judgment against himself. Weaver v. Skinner, 4 Grat. 160. 2. Upon such motion the high sheriff can only recover the amount of the judgment against himself ; and not interest on the aggregate amount of principal and interest. Ihid. MULTIFARIOUSNESS. Legatees having obtained a decree ascertaining the rights of all, on a bill to enforce the decree, they seeking satisfaction out of a common fund, it is proper for all of them to unite in one suit to get the benefit of the former decree in their favor : and the bill is not multifarious. Sheldon et als. v Armistead's adm'r et als., 7 Grat. 264. MURDER. 1. When a homicide is proved, the presumption is, it is murder in the second degree. If the Commonwealth Would elevate it to murder in the first degree, she must establish the characteristics of that crime. And if the prisoner would reduce it to manslaughter, the burden of proof is on him. Hill's case, 2 Grat. 594. 2. A mortal wound given with a deadly weapon, in the previous posses- sion of the slayer, without any or upon very slight provocation, is prima facie, a wilful, deliberate and premeditated killing and throws upon the prisoner the necessity of proving extenuating circumstances. Ibid. 3. The rule of law is that a man shall be taken to intend that which he does ; or which is the immediate or necessary consequence of his acts. Ibid. 4. It is not necessary that the clerk should include involuntarry man- slaughter in his charge to the jury on a trial for murder. JiT Whirfs case, 3 Grat. 594. NEW TRIALS. 253 5. Murder and manslaughter distinguished and defined. Ibid. 6. A father is informed on the evening of one day, that hia son, a small boy, has been wantonly whipped by a man. He meete the man on the evening of the next day, and then with his fists and feet beats and stamps him, whilst he is unresisting, with so much violence that the man dies from the effects of the beating the next night. This is murder. _ Ibid. 7. In trials for murder, the jury is the proper tribunal to weigh the facts and circumstances, as well as the testimony in the case. And the court cannot undertake to set aside the verdict because the jury have decided against the evidence or without evidence. Ibid. 8. A person neither assaulted nor threatened gets down from his horse, arms himself with a club, interposes himself between two other persons who are about to engage in a fight, and kills one of them. It is murder. Johnston's case, 5 Grat. 660. 9. A new trial was granted to a prisoner convioted'of murder in the first degree, after two concurring verdicts approved by the judge who presided at the trial the evidence being wholly, insuflicient to sustain the verdict and judgment. Grayson's case, 7 Grat. 624. 10. The killing of a slave by his master by wilful and excessive whipping is murder in the first degree, though it may not have been the intention of the master to kill the slave. Southerns case, 7 Grat. 673. NEW TRIALS. {Civil.) 1. A. new trial will not be granted on the ground of after discovered evidence, upon the affidavit of a party, that he has been informed and believes, that certain witnesses will give important testimony, without proof by affidavit of the persons or others who have heard them, of what they will state ; and especially if their evidence is merely cumulative, and the cause has been pending for a length of time, and these newly dis- covered witnesses live in the county, and within a few miles of the party who makes the application. Nuckol's adm'r v. Jones, 3 Grat. 267. 2. If an opinion or instruction of the court, given on a former trial, is relied on before the jury on the second trial, by the party in whose favor the opinion or instruction was given, without asking for the same from the court, and a verdict and judgment are rendered for him, the appellate court will consider the opinion or instruction so relied on ; and if it is erroneous, will reverse the judgment, and award a new trial. Crawford v. Morris, 5 Grat. 90. 254 NEW TRIALS. 3. An exception to the opinion of the court refusing a new trial, states all the evidence on the trial, instead of tl e facts. The appellate court cannot consider the parol evidence of the appellant; hut upon the written evidence and the parol evidence of the appellee, the verdict was erroneous, the judgment will be reversed and a new trial awarded. Pasley v. English et als., 5 Grat. 141. 4. An injunction to a judgment will not be allowed when there has been neglect in making defence at law, Griffith v. Thompson, 4 Grat. 147. 5. A court of equity will enjoin a judgment on the ground of a mistake by the jury, ascertained by after discovered evidence. But the subject of the action being accounts, the court will not direct a new trial ; but will refer the accounts to a commissioner, and will itself give the proper relief. Bust et als. v. Ware, 6 Grat. 50. 6. Under the circumstances, a new trial was awarded on the testimony of jurors, that they rendered their verdict under a mistake as to its legal effect. Moffet v. Bowman, 6 Grat. 219. 7. What is not a surprise for which a new trial should be granted. Harnsbarger's adm'r v. Kinney, 6 Grat. 287. 8. A verdict which is in all respects fair, and in the judgment of the court which tried the caus«, in conformity to the evidence, will not be set aside on the testimony of a few of the jurors, that they had been induced to agree to the verdict und'cr a misapprehension of an instruction of the court, id. 9. If there is not sufficient grounds for setting aside a verdict generally, it is error to set it aside to enable the defendant to withdraw his pleas and confess a judgment with a view to resort to a court of equity for relief id. 10. A comment of the judge upon the weight of the evidence in the cause, when excluding other evidence offered, being calculated to mislead the jury, the verdict shuuld be set aside, and a new trial awarded. McDowell's ea^or v. Cramford, 11 Grat. 277. (Criminal.) 1. The legislature has given to the jury the power of fixing the time for which the prisoner is to be confined in the penitentiary. The exercise of a p'.wer by the courts to disturb the verdict of jurors in this respect, would be one of great responsibility ; and one which the court can never be dis- posed to usurp. M' Whirt'H case, 3 Grat. 594. 2. In trials for murder the jury is the proper tribunal, to weigh the faots imd oircumstances, as well as the testimony in the case. And the oiiurt cannot undertake to Bet aside the verdict because the jury have de.iilpd against the evi'd'enoe or without evidence, id. Grayson's case, 6 Grat. 712. NEW TRIALS. 255. 3. The absence of a material witness, taken sick during the trial of the prisoner, is not cause for a new trial, the same facts which he would have deposed to having been deposed to by other unimpeached witnesses. Young's case, 4 Grat. 550. 4. On the trial of an indictment for obstructing the public highway, it is no reason for a new trial on the ground of surprise, that the defendant was mistaken as to the point where the obstruction was charged to be, and so was not prepared to defend himself. Wholford's case, 4 Grat. 553. 5. On an indictment fur unlawful stabbing, under the statute of Virginia, a verdict of " guilty of unlawful stabbing " will not authorize a judgment ; but the court should direct a new trial- Marshall's case, 5 Grat 663. 6. The general court having reversed a judgment and directed a new trial, the correctness of that judgment cannot be questioned either by the court below, or the general court upon a sec md writ of ei-i-> r. id. 7. New trials are grantable at the instance of the accused in all criminal cases. Grayson's case, 6 Grat. 712. 8. Motions for new trials are governed by the same rules in criminal as in civil cases, id. 9. A new trial will be granted >vhen the verdict is against law ; or when it is contrary to the evidence, or when it is without evidence, id. 10. Where some evidence has been given which tends to prove the facts in issue ; or the evidence consists in circumstances and presumptions, a new trial will not be granted merely because the court, if on the jury, would have given a different verdict; the evidence should be plainly insuffi- cient ; and this applies a fortiori, to an appellate court, id. 11. When the evidence is contradictory, and the verdict is against the weight of evidence, a new trial may be granted by the court wh'ch presides at th^ trial ; but its decision is not the subjpct of a writ of error or super- deas, or examinable by an appellate court, id. 12. When the evidence is contradictory, the court which tries the case cannot be required to state in a bill of exceptions either the evidence or the facts proved by the witnesses respectively ; it is enough to state that the evidence was contradictory, id. 13. A new trial was granted to a prisoner convicted of murder, in the first degree, after two concurring verdicts approved by the judge who pre- sided at the trial, the evidence being wholly insufficient to eustiiin the verdict and judgment. Grayson's case, 7 Grat. 613. 14. A venire-man having expressed himself before the jury were impan- neled as determined to punish the prisoner if taken upon the jury, not from any malice towards him, but from an opinion of his conduct, is no 256 NEW TRIALS. ground for setting aside the verdict and granting a new trial. Curran's case, 7 Grat. 619. 15. After-discovered evidence, in order to afford a proper ground for a new trial, must be such as reasonable diligence on the part of the party- offering it, could not have secured at the former trial ; must be rr -terial in its object, and not merely cumulative and corroborative or oollu 'al ; and must be such as ought to be decisive, and productive on another . 1, of an opposite result on the merits. Thompson's case, 8 Grat. 637. 16. Where the sole object and purpose of the new evidence is m discredit a witness on the opposite side, the general rule is subject to few es tions, to refuse a new trial, id. 17. What separation of a jury on trial for felony is not sufficient to entitle the prisoner to a new trial, id. 18. Jurors concurring in the guilt of the prisoner, each sets do .n the time for which he thinks he should be confined in the penitentiary aud the aggregate is divided by twelve ; and after the result is ascertuined ey all concur in it as their verdict. This, is not misbehaviour in the jur^ hich will entitle the prisoner to a new trial, id. 19. It is not misbehaviour in a juror, between the adjournment ct' the court in the evening and its meeting next morning, to drink spirituous liquors in moderation, id.. 20. And it is not misbehaviour for which a new trial will he granted, though they drink upon the invitation of a witness for the Commonwealth, if it is done in the presence of the sheriff, and where the invitation to do so is obviously merely intended as an act of courtesy, id. 21. In walking out for exercise the jury with the sheriff pass beyond the limits of the county in which the prosecution is pending. This is ro ground for a new trial, id. 22. A sheriff to whom a jury is committed in the progress of a criminal trial, walks out with them to a neighbouring house,, and while there with- draws from the room where they are, leaving them in the company of three other persons. Although these other persons swear that there was no allusion by them to the trial during such absence of the sheriff, yet the verdict of the jury is to be set aside and a new trial awarded. Wormley's case, 8 Grat. 712. 23. In a prosecution under the act, Code oh. 199, g 25, p. 752, to subject the prisoner to additional imprisonment on a second conviction for a felony, the indictment in that respect being defective, and evidence having been improperly admitted to prove a former conviction, the whole judgment must be reversed, and a new trial awarded. Rand's case, 9 Grat. 738. NOTICE. 257 NOTICE, 1. A notice on a forfeited forthcoming bond to a riegular term of the court, which is not held, will authorize an award of execution thereon, at a special term. Wbotion v. Bragg, 1 Grat. 1. 2. An endorser, residing in a district, passing under a particular name and having a post-office within it, and living equidistant from that post- office and another, out of the bounds of the district, a notice sent to the first office is sufficient. ]iand y. Reynolds, 2 Grat. 171. 3. The Court of Appeals will presume that s^ deposition has been taken upon a regular commission and notice, when no objection, for want of no- tice has been made in the court below. Pollard's heirs v. Lively, 2 Grat. 216. 4. The affidavit of a notary is pnly evidence of the facts stated in the protest.* Walker v. Turner, 2 Grat. 534. 5. A paper not being negotiable, the endorser is not entitled to notjce of nonpayment. Pitman v. BrecTcenridge & Crawford, 3 Grat. 127. 6. The registry of a deed conveying by general description, without de- signating the land conveyed, is not notice in law, to a subsequent purchaser of the existence of said deed. Mwndy v. Vawter, 3 Grat. 518. «« 7. . Actual notice of such a deed and of its contents, will not affect a sub- sequent purchaser, unless he had notice that the land purchased by him was embraced by the deed. Ibid. 8. One joint notice to a constable and his sureties, upon the default of the constable in several cases is sufficient, and a separate judgment should be given in each case. Hendricks v. Shoemaker, 3 Grat. 197. 9. A commissioner to whom accounts are referred, gives notice to the parties by publication in a newspaper. Exception for want of personal notice should not be sustained unless the party excepting shows' by affi- davit or otherwise that he had no notice. McCandlish, adm'r v. Eldoe et als, 3 Grat. 330. 10. In taking an ilkount, a commissioner may take depositions under his general notice. Ihid. 11. The order of a County Court directing justices to be summoned to consider of a verdict in ferry cases, may be executed by leaving notice in the mode prescribed in the general law in relation to notices. Somerville V. Wimbush, 7 Grat. 205. * 12. A notice on a forthcoming bond is not defective because it only men- • See Code of Va., Ch. 144, } 7, p. 681-2. 258 NUISANCES. tions those obligors in the bond, to wham the notice is intended to be given. Booth v. Kinsey, 8 Grat. 560. 13. A guarantor undertaking to pay upon reasonaWe notibe of the fail- ure of the principal to pay when due, dispenses with, notice of acceptance ; and what is reasonable notice is a question for the jury. Wadsworfh et als V. Allen <&c. 14. In an action on a bill of exchange, by the endorsee against the en- dorser, when the notice should be sent by mail, and it has not arrived at the endorsee's post-office, in the regular course of mail, the onus is upon the plaintiff to prove that it was mailed in time. Friend v. WiUdnsorKi; Hunt, 9 Grat. 31.. 15. No time being fixed by statute, within which notice to establish a landing shall be given the proprietor, if the notice is served, before the re- turn day, he must show that it was insufficient. Muire v. Falconer et ah, 10 Grat. 12. • 16. In such a case, a party appearing and defending the establishment of the landing, without objecting to the sufficiency of notice, cannot raise the objection of want of notice in the Appellate Court. ISid. 17. The affidavit of a witness that he was unable, to attend the court, not having been objected to in the court below for want of notice, cannot be objected to in tlie Appellate Court. Taylbe v. Smith, 10 Grat. 557. 18. What is sufficient notice to the endorser of the refusal of a drawee to accept a bill drawn in Virginia upon a merchant in London. Siainback T. Bank of Va., 11 Grat. 260. 19. If a tenant claims to hold adversely to his landlord, he is not enti- tled to a notice to quit. Harrison v. Middleton, 11 Grat. 527. 20. An agreement by a tenant, under seal, that he will surrender pos- session whenever ■& purchaser from the landlord requires it, constitutes him a tenant at will or by sufference, and he is not entitled to the legal notice to quit. Ihid. NUISANCES. If an individual, without authority, for his ,own purposes, or even for the public advantage, constructs a bridge in a public highway, it is incumbent in him to l^eep it in such condition as not to impede the free and convenient use of the highway ; and if he suffers it to become ruinous, so as to be an obstruction, he is guilty of a nuisance, for which he is liable. Sampson v. Ooochland justices ^ 5 Grat. 241. OATHS— ORDINARIES— OVERSEERS OF THE POOR. 259 OATHS. 1. A clerk has no authority, when applied to for a marriage license, to examine a witness on oath as to the age of the parties. Matthew William- son's case, 4; Grat. 554. 2. The authority of a clerk to administer an oath, only extends to oases in which, without regard to circumstances, the taking the affidavit is a necessary prerequisite to the performance of an official act. Ibid. 3. The swearing falsely before a person not authorized to administer the oath, is not perjury. Ibid. » 4'. The false swearing before a clerk that a person applying for a mar- riage license is over twenty-one years , of age, and thereby obtaining the marrjage license, and the marriage takes place, is a misdemeanor. ORDINARIES. 1. The act, Code, ch; 96, J 3, p. 443, vests in the County Courts a dis- cretion to grant or refuse a license to keep a tavern ; in the exercise of which discretion, they cannot be controlled by the Circuit Courts, either by mandamus, writ of error, or certiorari. Yeager, ex parte, 11 Grat. 655. 2. Though the applicant for a license to keep a tavern may bring hinl- self fully within and up to all that the statute requires, so that the County Court may properly grant him the license, if they think fit, he does not thereby acquire any such right to a license as that the County Court may be coerced to grant it. Ibid. 3. It seems that a County Court is bound to act upon every application for a license that is made to it ; and if it refuses to act, the Circuit Court will compel it by mandamus. But when the County Court does act, its decision is beyond control. Ibid. OVERSEERS OP THE POOR. 1. Under an order of the County Court, directing^ the overseers ot the poor to bind out a bastard child, one overseer may execute the indenture. Brewer v. Barris et als, 5 Grat. 285. 2. The County Court makes an order against the putative father of a bastard child, that he shall pay to the overseers of the poor twenty dollars a year for seven years. Though the overseers of the poor may never have paid anything for the support of the child, they are entitled to recover 260 PARCENERS— PARENT AND CHILD. these annual sums from the putative father. Willard v. Overseers of Poor of yVooA County, 9 Grat. 139. 3. Upon an appeal by the overseers of the poor from a judgment of the County Court. in such a case, the Circuit Court upon reversing the judg- ment, should not send the case back for a new trial, but should render a judgment in favor of the'overseers of the poor for the amount appearing to be due, but without interest. Ibid. PARCENERS. 1. A special verdict on a writ of right between co-parceners, or tenants in common, where the defence is the statute of limitations, must find either an actual disseisin or ouster of the demandants, or of those under whom they claim, or facts which in law constitute such actual disseisin or ouster. Purcdl and wife et als v. Wilson, 4 Giat. 16. 2. Though a great lapse of time and other circumstances may warrant the presumption of a disseisin or ouster by one coparce^r or tenant in common of another, not laboring under disabilities, this presumption is matter of evidence for the consideration of the jury, and not a matter of law for the judgment of the court on a special verdict. Ibid. 3. One of two co-parceners contracts to sell a small part of a tract of land, professing to act for both, though without authority ; and the other parcener does not consent to the sale. Both co-parceners afterwards con- vey the whole tract to a grantee havingfuU knowledge of the previous con- tract. The land first sold is but a small part, either in quantity or value, of one moiety of the tract. The grantee of the whole tract will be com- pelled in equity to perform the agreement of his grantor. McKee v. Bar- Uy, 11 Grat. 340. PARENT AND CHILD. 1. In a case of habeas corpus to obtain possession of a child by a mother, the father being dead, the petition may be in the' name of the mother and a second husband. Armstrong v. Stone and wife, 9 Grat. 102. 2. The father being dead, the mother is entitled to the custody of the child, as of right, and she is not deprived of it by a second marriage. But when she is seeking by the writ of habeas corpus to have the child placed in her custody, the court may exercise its discretion, and determine whether, under all the circumstances, it is best for the infant that he should be assigned to the custody of the mother. Ibid. PARTIES. 261 PARTIES. 1. Slaves emancipated by will are not proper parties to a bill filed to contest its validity. Coalter's ea'or v. Bryan and wife et ah, 1 Grat. 18. 2. During the pendency of a suit in a court of Iquity, against the dis- tributees of an intestate debtor, by his creditor, the estate of the debtor is committed to the sheriff; trho, without am'endment of the bill or issue of process against him, comes in and files his answer, and no objection is ta- ken to his so doing in the court below. An appellate court will not re- verse a decree against distributees on that account. Eairston v. Medley, 1 Grat. 96. 3. A bill in equity charges that a person, through whom a defendant re- ceiwd money, sought to be recovered, disclaimed any interest in. it, and directed defendant to deliver it to plaintiffs. Upon demurrer to bill : Held such EjBrapn not a necessary party. North-western Bank v. Nelson^ 1 Grat. 108. 4. Justices who appoint a guardian and take insufficient security from him, are not pnoper parties to a suit for the settlement of his guardianship account. Austin v. Richardson, 1 Grat. 310. 5. The clerk who takes a defective bond from a guardian, not a proper party to such suit. Ibid. 6. Where a person has a mere interest in the question involved in a suit in equity, arising out of a collateral liability, though the decree may, upon that question, be evidence for or against him in some future controversy, such interest does not render him necessarily or properly a party. Ibid. 7. In a suit by a judgment creditor to subject lands in the hands of a bona fide purchaser from the debtor, pending the suit the purchaser dies — his heirs are necessary parties. Taylor' fadm'r v. Spindle, 2 Grat. 44. 8. A will was executed in 1802. The testatrix died in 1815. In 18^7 the creditors of one of the administrators filed a bill to subject his pro- perty which he had conveyed in trust to indemnify his sureties in his ad- ministration bond, to the payment of his debts. The legatees mentioned in the will not having been heard of up to that time, are not necessary parties to the suit. Jones v. Lackland et als, 2 Grat, 81. • 9. A bill is filed by two executors against the creditors of their testator, for administration of his estate in equity. The accounts are taken and the cause is ready for hearing, when one of the executors dies. Without being revived against his representative, a decree is made against the sur- viving executor, who takes an appeal. It is too late to object in the ap- pellate court, that the suit was not revived against the representative of the deceased executor. Kee's ex'or v. Kee's creditors, 2 Grat. 116. 262 ■ PARTIES. 10. In a suit by an ' insolvent debtor to compel payment of the whole amount of an incumbrance, stated to be due at the time of the sale of his equitable interest in property surrendered by him, the creditors in the ex- ecution are necessary parties. Tiffanyv. Kentetals, 2 Grat. 231. 11. In an action bj- partners, the suit is brought in the partnership name, without stating the names of the partners ; but no objection is ta- ken to the mode of naming the plaintiffs in the pleadings. This is 'no ground for defeating the action on the trial of the cause. Downer & Co. v. Morrison, 2 Grat. 250. 12. To a bill filed to subject the real assets in the hands of the heirs to satisfy a debt of the ancestor, the administrator of the ancestor is a neces- sary party. Beall's adm'r v. Taylor's adm'r ei als, 2 Grat. 532. 13. A plaintiff in a foreign attachment having obtained a decree against a home defendant for the amount of a bond in his possession, the property of the absent debtor, and the obligor in the bond having been sued upon it by a third person comes into equity to enjoin the judgment on the ground of equities he has against it, the plaintiff in the attachment is a necessary party. Jameson's adm'x vv Beshidds, 3 Grat. 4. 14. A bill should not be dismissed for defect of parties, if plaintiff has shown he has a right to relief on the merits. If the proper parties are not made by the bill, even in the appellate'court, where the decree of the court below is reversed for want of parties, the case should be sent back to enable the plaintiff to make proper parties. Ibid. 15. On a bill to set aside a patent on the ground that it was obtained with a knowledge of a prior entry, the patentee or his representative must be before the court. Hagandhc. v. Wardens, 3 Grat. 315. 16. If the patentee is assignee of the person who made the second entry with knowledge of the first, then both or their representatives are necessary parties. Ihid. 17. A slave claiming a right to freedom is not a necessary party in a controversy between third persons, though his right to freedom may be in- volved in the controversy. McCatidlish, adm'r (&ici v. Edhe et als. 18. A grantor in a deed intended for the benefit of a married woman may maintain a suit to set it asid|t and have the trusts cqrreoted, on the ground that it was not prepared according to the directions of the grantor, and does not effect her intentions. SJiepherd v. Henderson et als, 3 Grat. 367. 19. A motion to quash a writ and inquisition founded on a judgment must be made in the name of a party on the record, and must be made against such a party. Wallup's adm'r v. Scarhurgh et als, 5 Grat. 1. • PARTIES. 263 ^ . » ' . 20. AH the persons secured by a deed of trust, .either directly or indi- rectly, who are named in it, are necessary parties to a bill assailing- the trust deed as fraudulent as to some of the cesiui's que trust, and seeking a distribution of the trust fund. Billups v. Sears et cds, 5 Grat. 31. 21. In a suit brought by the trustee of a married wom.in to as- ert and defend her rights, in which a full opportunity is afforded the cestui que trust fof defending her rights, it is not necessary that she should be made a party.- Wardson, trustee v. Perhins, 5 Grat. S45. 22. One of two administrators having taken no active part in the ad- ministration and having died, his administrator is not a necessary party to a bill filed by a distributee of the intestate for an administration ac- count. Will's adm'r v. Dunn's adm'r, 5 Grat. 384. 23. The widow of the intestate having received her third of the estate and died, her administrator is not a necessary party to a suit by the only child of the intestate, to recover his proportion of the estate from the ad- ministrator. Ibid. 24. Legatees having been in possession of slaves for nearly five years, nay file a bill to enjoin the sale of them under execution against a third person, without making the executor a party, though it does not appear he ever assented to the legacy. Kdly v. Scott, 5 Grat. 479. 25. To a bill to set aside fraudulent conveyances made by an insolvent debtor, the trustees and cestui's que trust in the deeds, the sheriffs of the counties in which the lands lie, and the execution creditors interested in the property should he parties. Clough v. Thompson, 7 Grat. 26. 26. In a suit by residuary legatees against the executou for a distribu- tion of the estate, the specific legatees should be made parties, unless it'ap- pear that their legacies have been paid. Nelson's en^or v. Page et als, 7 Grat. 160. 27. All the sureties of an executrix should be made parties to a suit by legatees for distribution, or a suficient excuse should be shown for failing to make them parties, before a decree is made against one of them. Hutch- erson &c. v. Pigg, 8 Grat. 220. 28. In a creditor's suit, either by foreign attachment, or to marshal as- sets against heirs residing abroad, the lands descended having been sold under a decree at the suit of the heirs and the proceeds being in the hands of a commissioner, he shpuld be a party as such ; akd his being a party as adtainistrator of the deceased debtor is not enough. Garrington et als V. Didier, Norvell & Co. 29. In a bill persons claiming to be legatees or assignees of legatees against defendant's legatees, or assignees of legatees, under the same will, for distribution of the slaves bequeathed to the legatees jointly, the pre- 264 PARTIES, sumption is in the absence of all proofs and pleadings to the contrary, that the persons made parties to the suit as legatees are not fictitious persons, or mere pretenders to the characters assumed in the proceedings. Ball tt als v. Johnson's ex'or'et ah, 8 Grat. 281. 30. In such case, the cause being a proper one upon its merits for dis- tribution of the subject amongst those entitled thereto, the bill should not be dismissed for want of parties or of proof that the parties were what they professed to be, but the court should direct'the plaintiff to amend the bill and make the proper parties. IMd. 31. A personal representative of a deceased insolvent co-obligor is not a necessary party tb a suit in equity by the executrix of the obligee against the administratrix of one of the obligors, to enforce payment of the bond, so as to require the plaintiff to have one appointed and make him a party. Montague's ex'x v. Turpin's adm'x, 8 Grat. 453. 32. L. buys land of T>. & T. and gives to each his bonds for his share of the purchase money. The contract is afterwards rescinded, but before this is done, D. assigns one of the bonds. On a bill to enjoin a judgment recovered on this bond by the assignee, T. is not a necessary party. Drake v. Lyone, 9 Grat. 54. 33. In general one distributee cannot maintain a suit to recover his dis- tributable share of the estate, without making the other distributees par- ties. SilUngs et als v. Bumgardner, guardian, 9 Grat. 273. 34. A bill is filed to subject lands to the satisfaction of a judgment, after the death of the debtor, and charges fraud in certain conveyances from the debtor to his son. The son having conveyed some of the lands to third parties, all such persons must be made parties. Henderson v. Henderson's ex'x, 9 Grat. 394. 35. In a bill by a surety whose principal is dead, to compel his execu- tor to pay his debt, the creditor is a necessary party. Stephenson v. Tav- erners, 9 Grat. 398. 36. A bill to marshal assets and for administration should be in be- half of all the creditors and. the heirs and devisees should be parties. Ibid. 37. The administrator is the proper party to revive a proceeding against the Upper Appomattox Co- to recover dajnages for injuries sustained to land, the jury having assessed the damages and returned their report to the court. Upper Appomattox Co. v. Hardings, 11 Grat. 1. 38. To a bill for dower, by widow, in land conveyed by husband in his life-time, without wife's relinquishment, the present owner is the only necessary defendant. M. Blair v. Thompson et als, 11 Grat. 441. PARTITION— PARTNERS. 265 39. Landlord ■who has made a contract for the sale of laiyJ, in the pos- session of his tenant, is the proper party to recover possession, if the tenant refuses to surrender it. Harrison v. Middleton, 11 Grat. 441. See Co-befendants. PARTITION. 1. A tenant by courtesy of lands, purchases the reversionary interest of one of the heirs. Another interest is held by infants. A court of equity ■will decree a partition of the land at the suit of the tenant by the cour- tesy. Otley V, McAhgin^s heirs, 2 Grat. 34. 2. A partition of land is made which has been acquiesced in for many years, but which is afterwards set aside. Held : 1st. Allowance shall be made for permanent improvements, so far as they add to the present value of the estate. 2d. In accounts for rents and profits, the estimate shall be upon the value at the time of the partition. Chinn et als v. Murray et als, 4 Grat. 348. 3. A brother and sister both of whom are married, own a tract of land jointly. In 1802, the brother and his wife and the sister and her hus- band unite in a deed of partition of the land and from thence to the pres- ent time the land is held in severalty by the parties respectively and those claiming under them. The partition is valid and binding on the parties, though no ''certificate of the privy examination of the wives is annexed to the deed. Bryan v. Stump, &c., 8 Grat. 241. 4. In a bill for partition, where both parties claim under the same per- son- it is sufficient to prove the derivation from him, without proving his title. Eannon et als v. Hannah, 9 Grat. 146. 5. Upon a bill for partition of land, if the title of the plaintifis is doubt- ful, the court prior to the act. Code, ch. 124, | 1, p. 526, should have sent the parties to law to try their title. Currin et als v. SprauU et als, 10 Grat. 145. 6. By the act. Code, ch. 124, | 1, p. 526, a court of equity may decide upon the title in suits for partition, and this, though the suit was com- menced before th6 statute was enacted ; and after allowing a reasonable time to the parties for trial, should proceed to try the question, observing the general rules of practice in courts of equity for the purpose of ascer- taining facts, either by a jury or otherwise, as may be most proper. Ibid. PARTNERS. 1. The property of a partnership is not liable to the individual debts of 266 PARTNBBS. a partner until all the debts of the partnership are paid, including dehts due from the partnership to either of the partners. Ghristian v. Ellis et als, 1 Grat. 396. 2. One partner in a farming partnership executes his bond for the rent agreed to be paid. This is paid afterwards out of the partnership effects. Creditors of the partnership have no right to be substituted to the obligee in/the bond, for the satisfaction of their debts. Ibid. 3. Partners make a note, and then the partnership is dissolved. The partner -who is authorized to settle up the business of the partnership, can- not renew the norte in the partnership name, so as to bind the other part- ner. ParTcer v. Ocnisins, 2 Qrat. 372. 4. In such case, though the last note does not bind the partner who did not execute it, the first note is still a valid security against him, though it was surrendered when the last note was taken. Ibid. 5. The renewed note being made in -the partnership name, it cannot be inferBed that the partnership creditor intended to release the partner who did not execute it, and look, alone to the partner who renewed the note. Ibid. 6. In an action brought by partners, the suit is brought in the partner- ship name, without stating the names of the partners ; but no objection is taken to the mode of naming the plaintiffs in the pleadings. This is no ground for defeating the action on the trial of the cause. Downer & Co. v. Morrison, 2 Grat. 250. 7. What constitutes proof of dissolution of partnership. PerJcins v. Perkins' ex'or, 3 Grat. 364. 8. The act of February 5th, 1828, Sup. Rev. Code, 265, dispensing wiA proof of handwriting in certain cases, applies to instruments signed with the name of a partnership, but the question is still open, whether the pei> sons sought to be charged are members of the firm. Shepherd, Hunter <6 Cu. V. Prys, 3 Grat. 442. 9. The act, March 19th, 1839, ch. 66, § 4, p. 43, only applies to actions brought by a partnership and dispenses with proof of the component mem- bers of the firm, as described in the declaration, unless denied by plea, to be verified by affidavit. Ibid. 10. Under the circumstances a surviving partner was not allowed com- pensation for carrying on the business after the death of his partner, or for settling up the business of the concern. Patton's ex'ors v. Calhoun's ex'ors, 4 Grat. 138. 11. Qu^RE : If generally the surviving partner is entitled to compensa- tion for settling up the business of the concern ? Ibid. PARTNERS. 267 12. QtTiERE: If a joint or partnership creditor is entitled to share in the separate estate of his deceased debtor with the separate creditors of the debtor ? T. Morris' adm'r v, S. Morris' adm'r et als, 4 Grat. 293. 13. The debtor partner having by his will Bubjeoted his real estate to the payment of his debts, the partnership creditor is entitled toshare with the separate creditors in that fund. Ibid. 14. Two partners having given their joint and several bond for a part- nership debt, the creditor is entitled to share the separate estate of the de- ceased partner with the separate creditors. Ibid. 15. The articles of co-partnership covenant that each partner shall put 11,000 into the concern, but the deceased partner failed to do it ; the firm having lost, and the surviving partner having paid the debts of the con- cern, he is a creditor by specialty of the deceased partner, and entitled as such to share in the separate estate. Ibid. 16. The provision in the articles of partnership that each partner shall share the profits and losses equally, is not a covenant which will entitle the surviving partner to claim as a specialty creditor the losses he has been compelled to pay. Ibid. 17. The surviving partner being the administrator of the deceased part- ner is entitled to retain, out of the separate estate in his hands, against separate debts of no higher, dignity, for all debts for which he is entitled^ to share the separate estate with the separate creditors. Ibid. 18. One partifer, in the absence of, and without authority from, his co-part- ner, sells partnership property and executes a bill of sale under seal, in the name of both, to the purchaser. The sale is made to pay a pressing debt of the absent partner, is bona fide, and for full value ; and the money is applied to the debt. The sale is obligatory upon and passed the title of the firm. Forkner v. Stuart &c., 6 Grat. 197. 19. If a contract, though made concerning the partnership affairs, and in furtherance of the joint undertaking, is thp individual contract of the partners who are parties to it ; and if it is made by them in their own name, and not in the name of the firm, an action may be maintained there- on by one against the other, during the continuance of the partnership. Wright v. MichxR, 6 Grat. 354. 20. A court of equity will not lend its aid for the settlement and adjust- ment of the transactions of a partnership for gambling. Nor will it give relief to either partner against the other, founded on transactions arising out of such partnership, whether for profits, losses, expenses, contribution or re-imbursement. Watson v. Fletcher, 7 Grat. 1. 21. Although the pleadings do not shew the nature of the partnership, yet if this appears from the evidence before the commissioner directed to 268 PARTNERS. settle the accounts, the court should re-commit them, and direct an en- quiry into the consideration on which the claims of the parties are founded. Ibid. , 22. One of the partners qualifies as administrator of the other ; he can- not question the title of his intestate to one moiety of the personM pro- perty bought and used for the partnership purposes. Ibid. 23. The whole, and not a moiety, of the personal property belonging to the partnership must be sold, and the proceeds divided between the living . partner and the estate of the deceased partner. Ibid. 24. The surviving partner, administrator, files a bill to set aside con- veyances made by his intestate, and to have his claims upon the estate ad- justed : and he then advertises for sale his intestate's undivided moiety of the real estate held by them jointly. Held : By his bill he placed his whole trust and authority under the control of the court ; and it was an abuse of his fiduciary relation to proceed to sell the real estate before an adjudication of the matters in controversy; and the sale was properly re- strained by injunction. Ibid. 25. Under the circumstances of the case, and after the time which had elapsed, the court refused to enquire into errors which were alleged to ap- pear upon the face of a final settlement of a partnership between the for- mer partners. Ross' ex'or v. McLwilkhlan's adm'r et als. 7 Grat. 86. Same v. Haden's adm'r. Id. 26. In a suit by the executor of one partner against the executor and sureties^of the other partner, under the circumstances, the sureties were not allowed to set up a credit wliich had been set up by the partner, and again by the executor, and had been disallowed by the court in both in- stances. Ibid. 27. A partner in two firms, one of which is debtor to the other, after the dissolution,, was authorized, under the circumstances, to transfer the debt due from the one firm to the other to a creditor of the latter firm. Peyton et als v. Stratton et als, 7 Grat. 380. 28. A partnership for the manufacture of iron is composed of four per- sons, the names of two of whom do not appear, and they live at a distance. The acting partners buy land in their own name, for the purpose of ob- taining from it wood to be used in the manufacture of iron ; and so far as it is paid for, it is paid for out of the partnership effects. The land is part- nership property ; and the partnership having failed, the two dormant partners are liable to the vendor for the balance of the purchase money. Brooks V. Washington, 8 Grat. 248. 29. One partner having a knowledge of the debts of the partnership, of which the other is ignorant, aad selling out to his partner, is bound to the utmost good faith on his part. He is bound not only to disclose truly any PATENTS. 269 information in his possession that may be called for, hut if he perceives that the purchasing partner is laboring under incorrect Tiews in reference to the amount of debt due by the concern, by which he may be misled into a too high offer for the interest to be sold, it is his duty to furnish all the data he may have, by vphich such vievrs may be corrected, and the mis- chief prevented. Sexton v. Sexton, 9 Grat. 204. 30. Whether a bond, and deed of trust to secure it, given by a partner after the dissolution of the partnership, for a simple contract debt of the partnership, releases the other partner in equity, depends upon the inten- tion of the parties in giving and taking them ; and this intention may be ascertained from the attendant circumstances. Niday v. Harvey <& Co. et als, 9 Grat. 454. 31. In debt on a note signed with the partnership name, the declaration charges that the defendants by their partnership name subscribed the note and there was no affidavit by the defendants or any one of them put- ting the execution of the note in issue. They are precluded from showing that the partnership had been dissolved before the note was made and that the person making it had no authority to execute it for the partners. Phaup &c. V. Stratton, 9 Grat. 615. PATENTS. 1. The elder patent of the Commonwealth confers seisin of" the land em- braced therein, though at the time of its emanation, there was actual oc- cupation of the land by another person. Overton's heirs v. BavUson, 1 Grat. 211. ► • 2. A mistake in a patent calling for an otject where it is not found does not affect its validity. Ihid. 3. The beginning corner of a survey or of several dependent surveys being fixed ; in the absence of proof of any other corners or boundaries, or of any calls for natural objects conflicting with the calls for courses and distances in the patents issued on such surveys, the identity of the land embraced therein is to be ascertained by the courses and distances of the patents, beginning at the fixed corner. Ibid. 4. A court of equity vrill not entertain a bill to repeal a patent, after ten years. Goodwin v. McChier, 3 Grat. 291. 5. A court of equity has jurisdiction to set aside a patent obtained with knowledge of a prior entry. Eagan et als v. Wardens, 3 Grat. 315. 6. On a bill to set aside a patent on the ground that it was obtained with a knowledge of a prior entry, the patentee or his representative must be before the court. Ibid. 270 PAYMENTS. 7. If the patentee is the assignee of the person who made the second entry with knowledge of the first, then both, or their representatives, are necessary parties. Ibid. I 8. A party having obtained a patent for land with knowledge of a prior equitable title in another, and having brought a writ of right for the land, a court of equity will award an injunction to stay proceedings for a rea- sonable time to afford the tenant an opportunity to get in the legal title, outstanding in a third person. Goodwin v. McCluer, 3 Grat. 291.. 9. Land having been granted by the Commonwealth, and a party claim- ing under a junior patent, not showing a forfeiture of the land or trans- fer of the forfeited title to him, the land was not waste and unappropriated and nothing passed by his junior grant. And as the junior patent issued af- ter the commencement of the suit, there could be no adverse possession under it. Harmon v. Haivnah et ah, 9 Grat. 146. PAYMENTS. 1. Where the Treasurer of the State has received money and made dis- bursements on account of a particular fund in the same year, the disburse- ments are to be applied as credits on the receipts of that year. Wilsqn et als V. Burfoot, Treasurer, 2 Grat. 134. 2. Where he has made disbursements in a year in which he has received nothing, in the absence of, instructions from him, the disbursements will be applied as credits to the money first received. Ibid. 3. An obligor in a bond is sued thereon by a party who claims under a forged assignment and judgntent is recovered. The obligor having hav- ing notice of the fogery, and of the right of another to the bond, is not protected from the claim of the rightful owner, though he makes payment under execution. Jameson's adm'x v. DesMelds, 3 Grat. 4. 4. A third person having obtained a decree against a vendee of land for a sum of money to be paid out of the purchase money due'the vendor, and the vendee having compromised that claim for less than the amount there- of, he is only entitled to credit upon the purchase money' for the sum ac- tually paid. Bryan v. Salyards et als, 3 Grat. 188. 5. A payment made by a debtor to his creditor cannot be applied \)y the creditor to a debt arising subsequently, without the assent of the debtor. Laws' ex'ors v. Sutherland et.als, 6 Grat. 357. 6. A debtor by four bonds payable at successive periods, makes pay- ments which, upon a settlement after the death of the debtor, are ascer- tained to amount to more than the first bond. The creditor will not be PAYMENTS. 271 allowed to apply the surplus to the fourth bond ; hut the court will apply it to the second bond in relief of a party hound aa surety for that bond. Boss' ez'or v. M'Lauchlan's adm'r ei als, 7 Grat. 86. Same y. Haden's adm'r. Id. 7. A creditor by two judgments and a bond flies a bill against the exe- cutor of the debtor, and obtains a personal decree against the executor for the whole amount. Upon an execution which issued upon this decree a part of the money is made. The judgments being debts of highest dig- nity, the money so made is to be applied as a payment upon them in re- lief of a party who is bound as surety for the judgments. Ihid. 8. In this case the executor sells lands of his testator, and pays the proceeds to the creditor. As the judgments were liens upon the lands, the payment is to be applied as a credit upon the judgments. Ihid. 9. Eleven bonds are given for the purchase money of two-thirds of a tract of land, payable at successive period's, and a deed of trust is given to secure them. The obligee assigns the 5th, 6th, and 7th of these bonds. There having been a prior incumbrance on the whole tract, the assignee is entitled both against the obligee and an attaching creditor subsequent to the assignment, to have the one-third not covered by the last deed of trust applied to pay the first incumbrance. Schofleld v. Cox et als, 8 Grat. 533. 10. The obligors having paid off the two first bonds, and having paid on account both before and after the assignment, but without notice of it, more than enough to discharge the 3d and 4th bonds, though they might be entitled to insist that the amount after paying .these should he ap- plied to the 5th bond, yet neither the obligee nor his attaching creditor is so" entitled : And in the first case the assignee would be entitled, on the principle of marshalling assets, to be substituted on the other bonds not assigped, as against the obligee and attaching creditor. Ihid. •11. All the land being sold together, the one-third, and so much of the two-thirds, of the purchase money as is necessary, will he applied to dis- charge the first incumbrance, and the balance will be applied to pay the assignee. Ihid. 12. A bond is given for a loan of money which is to be paid in a few days by a debtor of the obligor. The debtor pays the debt and. takes up the bond. It is thereby extinguished ; and if in a future settlement be- tween She borrower and his: debtor this claim is omitted by mistake, the remedy of the debtor is not on the bond, but for money paid to the use of the borrower. Young for &c. v. Johnston, 10 Grat. 269. 13. In an action of assumpsit for various sums of money lent to or paid for the defendant's intestate, though payments and set-ofis cannot be proved, without an account of such paymeats and, set-offs filed, yet 'the defendant 272 PENALTEES.^-PBRJURIBS. may prove that the money sued for or any part of it, was not lent or advanced for the intestate, but was paid out of the money of the intestate in the hands of the plaintiff. Johnson's ex'x v. Jennings adm'r, 10 Grat. 1. ' 14. A widow having rfeoeived from the executors of her husband bonds of a third person, in part satisfaction of the amount due to her under a a marriage agreement, and having given to them a receipt for the amount of the bonds, it is a valid payment to her to that extent, Finney's e^or V. Pindley, 11 Grat. 434. See Application of Payments. PENALTIES. See Forpeititkes and Penalties. PERJURY. 1. Indictments for perjury must be according to the common law. Lodges case,* 2 Grat. 579. 2. An indictment for perjury in swearing falsely to an answer in chan- cery, should set out the whole bill and answer. Ibid.^ 3. The swearing falsely before a person not authorized to admialster the oath is not perjury. Matthew Williamson's case. 4. The swearing falsely before a clerk that a person applying for a mar- riage license is over twenty-one years of age is not perjury. Ibid. * 5. Perjury may be committed in taking an oath before a justice, on a trial of a warrant for debt, that the defendant did not sign the order on which the warrant issued. LiUon's case, 6 Grat. 691. 6. Upon an indictment for perjury where it is a question whether the oath taken is legal perjury, the court should not quash the indictment but should put the defendant to his demvflrer. Ibid. 7. An, indictment for perjury must shew that the evidence which the defendant gave was material ; and therefore if the evidence which the de- fendant gave before the grand jury is not shewn clearly on the face of the indictment to relate to an offence committed within the county, the indict- ment is defective. Pickering's case. 8 Grat- 628. • See Code of Va., ch. 207, J 5, p. 769. PERSONAL REPRESENTATIVE, 273 1. Official bond. 2. Rights and liabilities of. 3. Accounts of. 4. Co-executors. 5. Suits by and against. OFFICIAL BOND. 1. The act, 1 Rev. Code, ch. 104, ? 63, p. 390, authorizes an action on the executorial bond, against an executor and his sureties by creditors by decree, as .well as creditors by judgment. Bush v. Beak, 1 Grat. 229. 2. A decree against an executor de bonis testatoris, on which an exeou- tion-^h.as been returned nulla bona, authorizes a suit on the executors bond. Ibid.^ 3. Co-executors joining in the same official bond are sureties for each other. Boyd's elisors v. Boyd's heirs, 3 Orat. 113. 4. The sureties of an executor who qualified prior to the act of Feb. 16th, 1825, Sup. Rev. Code, ch. 158, p. 215, are not responsible for the proceeds of real estate wasted by him. Ibid. 5. An administration bond not conforming to the requisitions of the statute and containing no provisions for the benefit of creditors, the sure- ties therein are not liable to creditors. Boberts v. Colvin, 8 Grat. 358. 6. Decree against administrator, and action on administration bond against sureties, and judgment. The sufficiency of assets is fixed by the judgment as to the sureties, though the personal decree against the ad- ministrator is reversed. MUl's adm'r v. Dunn's adm'r, 5 Grat. 384. 7. The official bond of an executor contains in the penal part, the names of the executor and several sureties, and there is no blank for the name of another, but it is signed and sealed by all those whose names are in the penal part, and also by another person. It is the bond of all, in- cluding the last mentioned person. Luster v. Middlecoff et als, 8 Grat. 54. 8. The official bond of on executrix only binding the obligors for the due administration of the personal assets, the sureties are to no extent responsible for the rents and profits of the real estate. Butcherson, <&c. v. Figg, 8 Grat. 220. RIGHTS AND LIABILITIES OF. 1. An executor who is the residuary legatee, is bound to pay interest on legacies, though not demanded for fourteen years. Bomn^s ^'or v. Mecham, 1 Grat. 292. 2. An executor claiming no interest as devisee or legatee under the will, and not being liable for costs, is a competent witness to sustain the valid- B 274 [PERSONAL KEPKESENTATIVE. ity of the will under which he acts. Coalter's e^or el als v. Bryan and wife et als, 1 Grat. 18. 3. A purchase of property by an executor at his own sale may be avoided by the parties interested therein. Bailey's adm'x v. Robinsons, 1 Grat. 4. 4. A purchase of property by an executor at his own sale thereof, being set aside, he will not be held to take it at what it was then worth, upon the esti- mate of witnesses, but it will be sold again, if more can be obtained for it, and if this cannot be done, his purchase will be confirmed. Ihid. 5. Executors pursuing such a course in the administration of their tes- tator's estate as a judicious man, looking alone to his own interests, would, under the circumstances pursue in his own affairs, will be held justified in so doing. Kee's es^or v. Kee's creditors, 2 Grat. 116. 6. Executors held justifiable under the circumstances, in paying bonds of their testator, discounted by an unchartered institution for his benefit. Ibid. 7. Executors held justified in making a compromise with a person bar- ing assets of the estate in his hands, for the purpose of getting possession thereof. Ibid. 8. Until a contingent legacy is payable, an executor cannot relieve him- self and his sureties from responsibility for it by paying it over to the guardian of the legatee. Swope v. Chambers, 2 Grat. 319". 9. An executor cannot elect to hold a legacy as guardian of the legatee, until it is payable. Ibid. 10. An executor being also guardian, there must be some act or declara- tion by which to indicate that he holds a legacy as guardian. Ibid. 11. An executor assents to a sale of slaves under execution at a place other than the courthouse, and they sell at a sacrifice ; but the sale is fairly made. The executor is not liable. Boyd^s ex'ors v. Boyd's heirs, 3 Grat. 113. 12. An executor of an executor pays a debt of the first testator, for which judgment had been recovered against his testator. He then settles his testator's administration account before the court of probat, by which his testator is made a creditor of the estate. He then sues the other exec- utors of the first testator forthe amount of the judgment he had paid, and recovers judgment, which is satisfied out of their testator's estate. After- wards, upon a settlement of the deceased executor's account before the chancery court, it appears he was a debtor instead of a creditor. There being no fraud or collusion on the part of the surviving executors with the executor of the deceased executor, they are not responsible. Ibid. 13. An appeal as of right lies from the county to the superior court. PERSONAL REPRESENTATIVE. 275 from an order revoking absolutely or conditionally the power of an execu- tor or administrator, with a view to the appointment in his stead of an ad- ministrator de bonis non, or to the committing of the estate to the sheriff. Atkinson v. ChriMian, 3 Grat. 448. 14. An administratrix who sells the property of the estate at a very great sacrifice, and buys it herself, will be held to account for it at the appraised value. Cross' curairix v. Cross' legatees, 4 Grat. 257. 15. An administratrix who hires out the slaves publicly, and hires them herself at very reduced prices, and then hires them out at advanced prices, will be held to account for them at the advanced price ; or, if that cannot he ascertained, for reasonable hires. Ibid. 16. An administratrix, or other fiduciary, whose duty it is to hire out slaves for the benefit of cestuis que trust, will be held to account for interest on their estimated hires. Ibid. 17. An executor or administrator, with the will annexed, may appeal without giving security, where the object of the appeal is to assert the rights or protect the interests of the estate he represents. MaCauley's adm'r v. Griffin's ei^or, 4 Grat. 9. 18. A surviving partner, being the administrator of a deceased partner, is entitled to retain out of the separate estate in his hands, against separate debts of no higher dignity, for all debts for which he is entitled to share the separate estate with the separate creditors. T. Morris' adm'r v. S. Mor- ris' adm'r et als., 4 Grat. 293. 19. An executor sells a slave belonging, to his testator's estate, the sale not being necessary for the payment of debts, and he re-purchases the slave and thereafter holds him as his own. The slave is the property of the es- tate, and the executor shall account for his annual hires, with interest thereon, though he was not in fact hired out by the executor. Rosser, ex'or of Wood, V. Depriest et als., 5 Grat. 6. 20. A sale by an administrator of his intestate's effects, though upon a credit, must be treated at law as a conversion thereof. Clarke v. Wells' adm'r, 6 Grat. 475. 21. But when upon a settlement of the administration of the administra- tor, between proper parties, it appears that the collection of such sale bonds, by his personal representative, is unnecessary for the re-imburse- ment or indemnity of his decedent's estate, they will be turned over to the administrator de bonis non, as unadmiuistered assets. Ibid. 22,, An administrator pells assets on a credit, and dies indebted to the es- tate.' A purchaser qualifies as administrator de bonis non. The proceeds of sale not being necessary for the re-imbursement or indemnity of the first administrator, his administrator will be enjoined from collecting the debt 276 "" PERSONAL KBPEESENTATIVE. from the administrator de bonis non ; who shall hold it as unadministered assets of his intestate. Ibid. 23. To the judgment of a county court refusing to permit a person named as executor in a will to qualify without giving security, an appeal, as of right, lies to the circuit court. Fairfax v. Fairfax's ex'or, 7 Grat. 36. 24. A testator appointed his wife and son executrix and executor of his will, and directed that they should not he required to give security. Some years afterwards he, by codicil to his will, appointed a son-in-law an execu- tor with his wife and son. He is not entitled to qualify vrithout giving security. Ibid. 25. Qu^EE : If in such case parol evidence is admissible to show the in- tention of the testator ? Ibid. 26. An administrator who was the partner of the intestate, cannot ques- tion his title to a moiety of the partnership personal property, on the ground that it was bought and used for gambling purposes. Watson v. Fletcher, 7 Grat. 1. 27. When an administrator with the will annexed resorts to equity to es- tablish and enforce claims against his testator's estalte, and to set aside con- veyances made by him, he places his whole trust and authority under the control of the court ; and he will be restrained by injunction from proceed- ing to sell the real estate before there is an adjudication of the matters in controversy between himself and the devisee and legatee. Ibid. 28. An administrator or executor is not bound to sue for the recovery of a debt due to estate, where it is apparent the debtor is not able to pay it. Mitchell's adm'r v. Trotter and wife, 7 Grat. 136. 29. Under the circumstances, an executor was held not to \}e responsible for a debt due the estate, and lost by the insolvency of the debtor, occurring after the testator's death. Nelson's ex'or v. Page et als., 7 Grat. 160. 80. When there is no hand to receive a legacy, the executor should in- vest it in an interest-bearing fund, or should bring it into court to be so in- vested. Lyon's, adm'r v. Magagnos' adm'r, 1 Grat. 377. 31. A sale of bonds of the estate by an executor, at a discount of eight- teen, per cent, when the circumstances of the estate do not require it, is a devastavit Piriclcard v. Woods, <&c., 8 Grat. 140. 32. A devise that executors shall sell land, confers a naked power ; but when coupled with directions that the proceeds shall be equally divided be- tween specified persons, it vests in the executors an interest and a trust, and it is their duty to take possession of the land and account for the rents and profits. Mosby's adm'r et als. v. Mosby's adm'r, 9 Grat, 584. Miller y. Jones et als. Idem. PBESONAL REPRESENTATIVE. 2T7 33. Sheriff, administrator with the will annexed, may execute the power. Ibid. 34. Upon a sale of land by executors, immediately after the property is oped out, and before anything is done, the executors accept another person as puichaser, both being men of property and credit. They will not be liable if the latter fails before the purchase money is paid. Elliott v. Ca/r- ter et als., 9 Grat. 541. 35. For the principles upon which the responsibility of executors will be adjudged. See Ibid.. 36. The testator gives certain property to his wife for life, and directs that at her death his executors shall sell it and divide it among his child- ren. After the widow's death, the executor sells the property. His sure- ties are liable for his devastavit. Almond and wife v. Mason's adm'r et als., 9 Grat. 700. 37. When the condition of the estate does not require a sale of the slaves, and they are divided among the legatees or distributees, the executor is not entitled to a commission on their appraised value. Glaycomb's lega- tees V. Glaycomb's ex' or, 10 Grat. 589. 3(j. But where grain or other perishable property, which by the la-?f the executor is directed to sell, is divided in kind among the legatees, the exec- utor is entitled to a commission upon the appraised value. Ibid. 39. Executors or administrators with the will annexed, who are legatees of slaves under 4he will, agree upon a division of the slaves, and each takes possession of those allotted to him. This is an assent to the legacy by the executors or administrators. Frazer's adm'r v. Bevill et als., 11 Grat. 9. 40. The legacy to one is for life, with the remainder over upon hi^ dying without issue. The assent to the legacy in favor of the first taker, is an as- sent in favor of the contingent legatee over. Ibid. 41. Though an executor assents to a specific legacy, he does not thereby dispense with a refunding bond. Nelson's adm'r v. Cornwell, 11 Grat. 724. 42. An executor, though he has authority to submit a matter to arbitra- tion, yet is responsible as for a devastavit, if by the award his testator's es- tate is injured. Ibid. 43. An executor making an improvident submission to award, as to a part of his testator's estate which has been specifically bequeathed, and the result of the submission being, that the property is left in his hands as his own property, and he is compelled to pay for it, the legatee is not precluded by the award from recovering the specific property. Ibid. ■ 44. An administrator in Mississippi, having purchased for the estate land 2T8 PERSONAL REPRESENTATIVE. Bold for the payment of a debt due to the estate, held, under the circum- stances, not bound to keep the land and account for the -price ; but the land is to be treated as the property of the estate. Powell v. Slratton et als., 11 Grat. 792. 45. Under the circumstances, the administrator is not held responsible for money which became worthless in his hands by the insolvency of the bank. Ibid. ACCOUNTS OF. 1. An administrator dying before the passage of the act of 16th February, 1825, in relation to his commissions, will not be deprived of his comrais- sions. Turners v. Turners' adm'r, 1 Grat. 11. 2. An administrator who qualified before the passage of the act and lived for two years after its passage, without settling his accounts, is not entitled to his commissions. Ibid. 3. An administrator of an intestate who lived and died in another State, answers that he has no assets in his hands ; and knows of none that can come to his hands. The Court of Appeals will not reverse a decree against the diatributees, because no account of this administration was taken. Sairston v. Medley, 1 Grat. 96. 4. The whole profits of infants' estates being necessary for their support, the interest on the annual balances of the administration account; the hires of slaves, and other annual profits in the hands of the administrator, should not be invglved in that account ; but should go into the account be- tween the administrator and guardian. Jackson's adm'r v. Jackson's heirs, I Grat. 143. 5. Administrator entitled in his account to credit for moneys expended in permanent improvements upon the real estate of the heirs. Ibid. 6. How administrator will be credited for amount of purchases made at his stores by widow. Ibid. 7. An executor having the management of both real and personal estate, and making disbursements in the administration of the estate, and also for the support of the family ; in the settlement of his accounts, he is entitled to be credited in his administration acconnt, with his disbursements as ex- ecutor, and in his account of the real estate with his disbursements for the family. Sobson v. Tancey et als., 2 Grat. 73. 8. Executors not keeping their accounts properly, this is not, of itself, sufficient to deprive them of their commissions, but they are to be held to a rigid accountability. Kee's ex'or v. Kee's creditors, 2 Grat. 116. PERSONAL REPRESENTATIVE. 279 9. An executor having died within two years after the passage of the act of February 16th, 1825, his estate is not to be deprived of commissions, though his accounts are not settled within two years. Boyd s ex'or v. Boyd's Jieirs, 3 Grat. 113. 10. An executor living more than two years after the passage of said act and not settling his accounts, is not to be allowed commissions. Ibid. 11. This act does not apply to the proceeds of real estate sold by an ex- ecutor. On that he is entitled to commissions, though he does not settle his accounts. Ibid. 12. The administration account should not be closed before the time when all the debts of the estate are paid. Ibid. 13. An administrator not having settled his accounts will not be allowed commissions. T. Morris' adm'r v. S. Morris' adm'r et als., 4 Grat. 293. 14. In a suit by an administrator de bonis non, against the administra- tor of the first administrator, for a settlement of the first administrator's account, it is irregular to decree payment to the administrator de bonis non; but the distributees being parties and not objecting, the decree will protect the defendant, and therefore the error is no ground of reversal of the de- cree in the appellate court. Ibid. 15. At the close of an administration account, the interest is not to bear interest. Ibid. 16. An executor takes bonds for purchases made at a sale by himself of testator's personal eslate, and it does not appear when these bonds were paid ofF. He will be charged vnth the principal of the bonds in the year when they fell due, but with interest only from the end of the year. Bos- ser, ex'or of Wood v. Bepriest et als., 5 Grat. 6. 17. An administrator whose administration terminated before 1797, is to be charged but five per cent interest upon the balance of principal found against him upon a settlement. Wills' adm'r v. Bynn's adm'r, 5 Grat. 384. 18. The error appearing upon the face of the commissioner's report, which is the basis of the decree, and not being susceptible of being repelled by extrinsic evidence, it will be corrected in the appellate court, though not excepted to in the court below. Ibid. 19. An administrator having failed to render an account of crops, rents, and hires which came to his hands, proof of the estimated net annual value may be resorted to for the purpose of charging him. Ibid. 20. Partial payments made by an executor to legatees from time to time, though they amount to more than the shares of some of the legatees, does not constitute such a settlement of the executor's account as to take the de- 280 PERSONAL REPRESENTATIVE. mand for commissions out of the operation of the statute. Nelson's ex'or v. Page et als., 7 Grat. 160. 21. Land in which a widow is entitled to dower, being sold by the exec- utor under a charge for payment of debts, he should be credited in his ac- count of the proceeds, for the amount he has paid the widow for her dower interest. Meeks' ^dm'r, (Ssc. v. Thompson et all., 8 Grat. 134. 22. A case in which, unJer the circumstances, an administrator was not charged with interest on a balance in his hands, from 1826, when his ac- count was settled, until 1846, when the family ceased to live together ; and was charged with interest from the last date on the whole balance, princi- pal and interest. Feale v. Sickle and others, 9 Grat. 437. CO-EXECUTORS. 1. Executors selling land devised by the will to be sold, sell as trustees ; and as such are only liable for their respective receipts, unless guilty of fraud or gross neglect amounting to fraud. Boyd's ex'ors v. Boyd's heirs, 3 Grat. 113. ■2. For the failure of the executor receiving the proceeds of real estate, to apply them to the payment of the debts of the estate, whereby slaves specifically bequeathed are taken in execution and sold, the other executors are not responsible. Ibid. 3. Where one of two executors performs all the labor of the administra- tion, he may be allowed all the compensation, and it is not for the legatees to object to this. Claycomh's legatees y. Clayconib's &£or, 10 Grat. 589. SUITS BY AND AGAINST. 1. A person acti«g as executor is not to be made a party personally, to a bill filed to contest the validity of the will under which he is acting. Coalter's ey^or et als. v. Bryan and wife et als., 1 Grat. 18. 2. The act 1 Rev. Code, ch. 104, g 63, p. 390, authorizes an action on the executorial bond against an executor and his sureties, by creditors by de- cree, as well as creditors by judgment. Bush v. Beale, 1 Grat. 229. 3. A decree against an executor de bonis testaioris, in which an execution has been returned " no effects," authorizes a suit on the executorial bonds. Ibid. • 4. It is error to make a personal decree against an administrator, without an account or admission of assets in his hands sufficient to satisfy the de- cree. Wills' adm'r v. Dunn's adm'r, 5 Grat. 384. PERSONAL REPRESENTATIVE. 281 5. One of two administrators having taken no active part in the adminis- tration, and heing dead, his administrator is not a necessary party to a 'bill filed by the distributee of the intestate for an account of the administration of the estate. Ibid. 6. In a suit by residuary legatees against the executor for a distribution of the estate, the specifle legatees should be parties, unless it satisfactorily appears that their legacies have been satisfied. • Nelson's ex'or v. Page et ah., 7. Grat. 160. 7. In a suit by legatees against the administrator (7e bonis non, of the heir of the executor of the testator, under the circumstances a decree against the administrator de bonis non, conclusively establishes against the heir and all his representatives, the indebtedness of the executor's estate to the legatees of his testator, that they had a right to follow the assets in the hands of the heir, that a sufficiency of such assets came to his hands, and that his representatives who had received his assets are accountable to said legatees for the assets so received. Sheldon et als. v. Armstead's adm'r et als., 7 Grat. 264. 8. Under the circumstances, the decree against the administrator de bonis non of the heir, was held conclusive against the prior executor of the heir, upon the question of the indebtedness of the executor of the testator to his estate, the right to follow his assets in the hands of the heir, the receipt of sufficient assets by the heir for the payment thereof, and the liability of his estate for the amount. Ibid. 9. QuiEEE : What would be the effect generally of a judgment against an administrator de bonis non in establishing a debt against the estate, so as to conclude a former executor or administrator, and thereby subject him to a devastavit. Ibid. 10. The prior executor having paid over the assets to the legatees of the heir, with 'full notice of the claim of the legatees of the first testator, and after suit revived against him, such payment constituted a devastavit. Ibid. 11. A part of the assets of the heir's estate having been retained by the prior executor, and recovered by suit from his executor, by the administra- tor de bonis non of the heir, the prior executor is to be credited for the amount so recovered. Ibid. 12. Legatees having obtained a decree ascertaining the rights of all, on another bill to enforce the decree, they seeking satisfaction out of a com- mon fund, it is proper for all of them to unite in one suit to get the benefit of the former decree in their favor. And the bill is not multifarious. Ibid. 13. If the first decree was in favor of all, and on appeal this decree. was affirmed, though the decree in the court below, for some cause, omits to de- 282 PERSONAL REPRESENTATIVE. cree in favor of one legatee, he may unite with the others in a bill to en- force the first decree. Ihid. 14. The personal representative of the prior executor having paid over the assets to the legatees of the prior executor, without notice of the plain- tiff's claim, it vras proper to subject them in the first instance instead of the personal representative. Ihid. 15. The amount paid over by administrator of prior executor, to admin- istrator de bonis non of heir should be a credit to the prior executor on the principal of the debt due from the heir to the testator, for which the prior executor is responsible. Ihid. 16. If some of the legatees abandon their claims, the liability of the de- fendant is diminished by the amount of their shares. Ihid. 17. Under the circumstances, the plaintiffs should proceed first against the legatees of the heir, and should only recover from the legatees of the prior executor, for so much as they cannot recover from the legatees of the heir. Ihid. 18. Husband of a legatee for life of the prior executor having no assets of his wife, who died before the decree, is not liable for the life estate which had then terminated. Ihid. 19. Decree against the administrator de honis non appealed from and affirmed, as the plaintiffs had no right to proceed against the prior execu- tor's estate, to have satisfaction of the decree until it was affirmed, the act of 1826 did not begin to run in favor of the prior executor's estate until then. Ihid. 20. As the decree of the court below in pursuance of the decree of the court of appeals, ascertained the right of the plaintiffs to proceed against the sureties of the administrator de honis non of the heir, thp statute of 1826 began to run from that time in favor of his sureties. Ibid. 21. An executor signs a note for a debt of his testator as executor ; and there is an action thereon against him as executor, but the count is in the debet and detinei, and the breach is in the failure to pay. Quaere : If upon a judgment by default, it should be against him as executor or personally? Snead v. Coleman and wife, 7 Grat. 300. 22. If it is error to render a personal judgment, it is a clerical error to be corrected on motion to the court, and not by appeal. Ibid. 23. In an assumpsit by an administrator for a debt due his intestate in his life-time, the defendant cannot set off a debt due him for money paid as the surety of the intestate since his death. Minor v. Minor' s-adm'r, 8 Grat. 1. 24. The count in assumpsit by the administrator, is for money had and received, and the bill of particulars merely states an account in which the PERSONAL REPRESENTATIVE. 283 defendant is debtor for money received, stating a sum certain. This will not admit proof of an admission by the defendant, that he had received from a third person a certain sum belonging to the intestate's estate. Ibid. 25. All the sui'eties of an executrix should be parties to a suit by lega- tees for distribution, or a sufficient reason should be shewn for failing to make them parties, before a decree is made against one of them. Hutcher- son, &c., V. Pigg, 8 Grat. 220. 26. A personal representative of a deceased insolvent co-obligor in a bond, is not a necessary party to a suit in equity, by the executrix of the obligee against the administratrix of one of the obligors. Montague's ex'x v. Tarpin's adm'x et als, 8 Grat. 453. 27. Judgment against an administratrix upon the bond of her intestate, is conclusive of the validity of the debt against the administratrix. Ibid. 28. Where a defendant in detinue dies, and the action is revived against his administrator, the plaintiif is entitled to demand from the administrator, not only the property sued for, but damages for its detention by the intes- tate, and the costs incurred in prosecuting the action against his intestate. Hunfs adm'r. v. Martin's adm'r, 8 Grat. 578. 29. Where an action of detinue is revived against an administrator, and a judgment is recovered, the judgment for the damages for detention of the property and the costs, should not be against the administrator personally, but against him as administrator, to be levied of the goods of his intestate in his hands to be administered. Ibid. 30. In a suit for distribution, though there is a decree for the plaintiff, yet, if the administrator has been in no default, he shall have costs. Eidson v. Fontaine, adm'r, Soc, et als, 9 Grat. 286. 31. Vendor retaining title, and vendee being insolvent, a court of equity will not enforce a contract between a subsequent purchaser and one of three executors of the vendor, for the release of the lien. Stuart's ex'ors v. Abbott etal, 9 Grat. 252. 32. A surety, whose principal is dead, may file a bill quia timet against the creditor and the executor of the debtor, to compel the latter to pay the debt, so as to exonerate the surety from his responsibility. He may enforce for his exoneration any lien of the creditor on the estate of his principal, and may bring any suit in equity which the creditor could bring, for a set- tlement of the administration and account of the assets, whether legal or equitable ; but the creditor must be a party,, that he may receive the money when it is recovered. Stevenson v. Taverners, 9 Grat. 398. 33. A bill to marshall assets, or for their administration, should be on behalf of the plaintiff and all other creditors ; and the heirs apd devisees should be parties. But if the proper parties are not made, the bill should 284 PERSONAL REPRESENTATIVE. not be dismissed, but the plaintiff should have leave to amend and make the proper parties, unless a decree for an account has been made in another suit having the same object. Ibid. 34. If several suits are pending by different creditors, the court will order the proceedings in all but one to be stayed, and will require the several parties to come in under the decree in said suit, so that only one account of the estate may be necessary. Ibid. 35. A creditor, who with the knowledge that there has been a decree for an account in another creditor's suit, brings a sepa]?a1jp suit for his own claim, will be compelled to pay costs. Ibid. 36. A decree in one creditor's 'suit for an account, operates a suspension of all other pending suits of creditors ; and they must come in under the decree. Ibid. 37. When several creditors' suits are pending, the decree may be made in the cause first ready for hearing, though that is not the first suit brought. Ibid. 38. In a suit by distributees against the administrator, the accounts having been referred, a report is returned before the defendant's evidence is filed. He excepts to the report and files an affidavit showing a sufficient excuse for not sooner taking his evidence, and asks for a recommitment of the report. Under these circumstances though the testimony may sustain the defendant as to the subject of the controversy, the bill should not be dismissed, but the plaintiff should have an opportunity to disprove the tes- timony, and is also entitled to have an account of administration. The report should be recommitted. Thomas v. Dawson and vrife, 9 Grat. 551. 39. A mere error of form in an execution issued against an executor, where it has been treated throughout as an execution de bonis testatoris, cannot be set up as a defence to an action of devastavit against the execu- tor and his sureties, founded upon the return upon it. Beale's adm'r v. Botetourt Justices, 10 Grat. 278. 40. A suit for an account of administration is brought twenty-six years after the death of the intestate, twenty-one years after the death of the ad- ministrator, long after his estate is settled by his administrator, showing that there were no personal assets, and in the absence of the first administrator's books and papers, against his heir, who, at his death, was an infant two years old. The staleness of the claim is conclusive against it. Sillis v, Hamilton adm'r et als, 10 Grat. 300. 41. In an action for a devastavit by a creditor against an executor and his sureties, the settled account of the executor was introduced which showed a credit to the executor of money paid to a legatee. The executor proposed to show by parol proof that the legatee paid was not a legatee of his testator, but of a person of whom his testator was the executor, and PERSONAL REPRESENTATIVE- 285 had received sufficient assets to pay the legacy, but'had not done it. Held : The fact of such a legacy and that the executor's testator was the executor, should be proved by the will and the record of his qualification ; and parol evidence is inadmissible for that purpose. Millers v. Catlett, 10 Grat. 477. 42. In a proceeding to recover damages for land, against the Upper Ap- pomattox Company, under ? 9, of act of February 23d, 1835, Sess. acts, p. 82, the jury having returned their reports, ascertaining the damages and the conjpany having excepted to it and obtained a continuance, the plaintiff dies. The proceeding must be revived in the name of the personal repre- sentative and not of the heirs. Upper Appomattox Go. v. Hardinge, 11 Grat. 1. 43. In a suit by a legatee claiming upon the death of the legatee for life without heirs, against said legatee and a purchaser of one of the slaves so bequeathed, under an execution against him, another executor, whe is also a legatee, is a competent witness for the contingent legatee, to prove the division of the slaves and the assent to the legacy. Frazer's adm'r v. Bevill et als, 11 Grat. 9. 44. W, administrator of G, assigns the bond of T to the executors of H, in discharge of a debt due from G to H. The executors sue T and recover a judgment, and he enjoins it on the ground that G owed him for a legacy left him by R, of whom G was the executor, and the injunction is perpetua- ted. The executors of H are entitled to be substituted to the rights of T against G's estate ; and are not confined to tbeir remedy upon the assign- ment of W. Braxton, adm'r, &c. v. Harrison's ex'ors, 11 Grat. 30. 45. In this injunction suit the executors of H and W and the adminis- trator de bonis non of G. are parties, and the decree perpetuating the in- junction is by consent ; and they also consent to a decree directing an ac- count of G's estate by his administrator. Held : It is a case in which there may be a degree between co-defendants in favor of the executors of H against G's estate. Ibid. 46. To ascertain whether there were assets of G's estate to pay the debt, the account might be directed. Ibid. 47. If the decree against G^s estate was doubtful, the consent^ of the representatives of W and G clearly authorized it. Ibid. 48. Though it was improper to perpetuate the injunction, yet as the ad- ministrator of G consented to the decree, and ^11 the parties acted in good faith, the executors of H are not thereby deprived of their reme'dy over against G's estate in the hands of a subsequent administrator de bonis non ofG. Ibid. 49. Ten years after the decree, the second administrator de bonis non of G. entered into a contract under seal, to pay the debt out of the assets when received ; and the executors of H agreed to wait one year, to release their 286 PERSONAL REPRESENTATIVE. costs in the suit, and dismiss it as to them. But the administrator was not to be bound personally ; and the executors were at liberty, if the money was not paid in the year, to cancel the agreement and proceed to enforce any of their existing remedies. The administrator did not collect assets within the year, and the executors sued in equity upon the agreement. Held: though the right of the executors of H to proceed against G's estate ac- crued when the injunction was perpetuated, yet the pendency of that suit carried on for their benefit, prevented the running of the statute of limita- tions against them. Ihid. 50. Though it is generally true, that an executor or administrator cannot create a new cause of action against the estate, yet he may make a valid promise to pay a debt not barred by the statute of limitations, out of the assets of the estate, on which a suit may be maintained. Ibid. 51. That there was a sufficient consideration to sustain the agreement, and a suit conld be maintained on it by the executors of H against the ad- ministrator, for payment out of the assets. Ihid. 52. That it was proper to sue in equity to have an account of, or for mar- shalling the assets ; and this especially as the agreement being under seal, it is doubtful whether an action at law could be maintained upon it. Hid, 53. Creditor qualifies as administrator on his debtor's estate, and after exhausting the personal assets in payment of debts, is still a creditor. In a suit by the heirs in the county court, the land is sold ; and the adminis- trator files a bill in the circuit court to enjoin the payment of the purchase money to the heirs, and asks to have it applied to his debt. Held : he is entitled to have the proceeds of the land applied to pay his debt. Williams V. Williams et als., 11 Grat. 95. 54. The injunction should only go to restrain the payment of the pur- chase money to the heirs and should not restrain the collection of it by the county court. Ibid. % 55. Though it would have been more regular for the administrator to connect himself by petition or bill, with the proceedings in the county court, in which the fund had been realized, yet there is no serious objection to the mode adopted by him. The county court, instead of directing the money to be paid to the heirs, may direct it to be paid to such person as the circuit court may appoint to receive it ; or one of the suits may be removed to the court in which the other is pending. Ibid. 56. An action on the case against the personal representative of a vendor, for fraud in the sale of an unsound slave, to the plaintiff, which he was in- duced to purchase by means of a false and fraudulent warranty, or the fraudulent concealment of. unsoundness, cannot be maintained ; and though there is a judgment for the plaintiff, the error is not cured by the statute of jeofails, 1 Rev. Code, 1819, ch. 28, ? 103, p. 511. Boyles' adm'r v. Overby, 11 Grat. 202. PERSONAL REPRESENTATIVE. 387 57. In such a case, though there is a verdict for the plaintiff, judgment should be rendered for the defendant: Ibid. 58. A personal representative cannot be sued, as such, for services or goods furnished to his testator or intestate's estate since his death. Fiiz- hugh's ex'or v. G. Fitzhugh, 11 Grat. 300. 59. It seems that an action vrill not lie against the personal representa- tive, as such, for the funeral expenses of his testator or intestate- Ibid. 60. In some cases where money has been paid for a deceased person, an action for money .paid will lie against the personal representative, as such : As where the money has been paid as a joint surety. Ibid. 61. Where the demands in all the accounts of the declaration are such that an action cannot, in any case, be maintained upon them against the personal representative, as such, then the description of him, as such, may be treated as surplusage, and the judgment may be against him personally. Ibid. 62. But if the demand set out in one of the counts may possibly be main- tained against the personal representative, as such, then the description of him, as such, cannot be treated as surplusage ; and if the action cannot be maintained against him in his representative character, it must fail. Ibid. 63. If an executor has assented to a legacy, and waived a refunding bond, the legatee may maintain an action at common law against the execu- tor for its recovery. But the intention to dispense with a refunding bond must be very clear. Nelson's adm'r v. Comwell, 11 Grat. 724. 64. Under the circumstances, a person who had qualified as administra- tor upon an estate in Mississippi, held to account for his administration in Virginia. Powell v. Siraiton et als 11 Grat. 792. 65. Courts of equity have jurisdiction, in all cases,. to compel the de- livery of a specific legacy by an executor. Nelson's adm'r v. Cornwell, 11 Grat. 724. 66. The statute of limitations cannot bar the legatee's claim to his specific legacy, whilst it is held as such by the executor, though he has long before assented to the legacy. Ibid. 67. A delay of seventeen years by a specific legatee to sue for his legacy, held, under the circumstances, not to bar his claim. Ibid, See Administration, and Limitations, Stat, op. 288 PLEADINGS AT LAW. PLEADINGS AT LAW. 1. Declaration,, I 3. Demurrer, 2. Pleas, 1 4. Other Pleadings. DECLARATION. 1. The declaration in Carrington v. Anderson. 5. Munf. 32 on an in- demnifying bond sustained upon demurrer. Kevan v. Branch, 1 Grat. 274. 2. The declaration charges a trespass in entering plaintiffs close and pulling down his house. The plea avers that the house was in immediate danger of taking fire, and of communicating fire to other houses. The re- plication to the plea avers that by a diligent use of the means in the power of the defendants the house might have been prevented from taking fire. This is no departure in pleading. Beotch v. Trudgain et als., 2 Grat. 219. 3. In declaring upon an acknowledgment of indebtedness in a deed, it is not necessary to set out more of the deed than that which contains the acknowledgment ; and this according to its legal effect. Newhy v. Forsyth, 3 Grat. 308. 4. In an action on an indemnifying bond, the declaration alleges that the obligors bound themselves to indemnify, &c. In the bond, they hind themselves, their heirs, executors and administrators, jointly and severally. This is no variance. Dickinson v. Smith & Carter, 5 Grat. 135. 5. There is a demurrer to each count in the declaration, and the demur- rers are overruled : and then there is a trial on issues made up on pleas, and a verdict and judgment for the plaintiff. On appeal the judgment is reversed, the verdict set aside, and the demurrers sustained; and the cause is remanded for a new trial, with liberty to the plaintiff to amend his de- claration. White V. Toncray, 5 Grat. 180. 6. In an action of waste by husband and wife against the alienee of the husband's interest in the wife's land, the declaration alleges that the re- yeraion in fee is in the wife. This is in effect to allege that the reversion in fee is in the husband and wife ; and if it is not sufficient on demurrer, is cured by the statute of jeofails. Bejarneite v. Allen & wife, 5 Grat. 499. 7. In trespass quare clausum fregit, it is proper to charge that the de- fendant ejected the plaintiff for a long space of time, viz: from thence hitherto ; whereby the plaintiff, for and during all that time, lost and was deprived of the use and benefit of said close. Bailey v. Butcher, 6 Grat. 144. PLEADINGS AT LAW. 289 8. In declaring in slander, if the words charged do not amount to slan- der, they cannot be helped by innuendo. Moseley v. Moss, 6 Grat. 534. 9. A demurrer to an entire declaration, whether general or special, raises the question, whether there be or be not, matter in the declaration sufficient to maintain the action. Henderson v. Stringer, 6 Grat. 130, 10. If there are several counts in a declaration, and one of them is good, that is sufficient to maintain the action, and a demui'rer to the declaration must be overruled. Ibid. , 11. If there be a single count containing several breaches, any one of which is well assigned, that is sufficient ; and a demurrer to the whole count must be overruled. Ibid, and WrigM v. Michie, 6 Grat. 354. 12. If there be a single count containing a demand of several matters which in their nature are divisible, any one of which is well claimed, that is sufficient. Henderson v. Stringer, 6 Grat. 130. 13. Whether the objection be that of one of several counts, or one of several branches, or that part of plaintiff's demand, which is of a distinct and divisible nature, is bad, the demurrer should be to that count, or to that breach, or to that part of the demand, as the case may be which is' bad. Ibid. 14. A demurrer to a declaration, with a statement as special cause of de- murrer, that one of the counts, or breaches, or parts of plaintiff's demand of ff, distinct and divisible nature, is bad, does not alter the character of the demurrer : and if thof e be matter enough in the declaration to main- tain the action the demurrer must be overruled. Ibid, and Wright v. Michie, 6 Grat. 354. 15. Upon a demurrer to a declaration for a misjoinder of actions, th« ob- jection if well founded, goes to the whole declaration. Ibid. 16. In an action on an award, if upon the face of the submission it does not clearly appear that the award does not cover the whole matter submit- ted, a demurrer to the declaration will not be sustained; but the defendant ; will be left to his plea of "no award," to which the plaintiff may reply and shew that^he award does cover the whole matter submitted. Price v. Via's heirs, 8 Grat. 79. 17. An instrument binding the parties thereto to pay a certain sum of money purports to be under their hands and seals, but it is signed by one of the parties without a seal, and by the other parties with seals to their names. It may be sued upon against all the parties in one action as. on a joint promise. Rankin v, Boler et als., 8 Grat. 63. 18. In case for the breach of an express warranty of soundness of a personal chattel, it is not necessary to allege the defendant's knowledge of 290 PLEADINGS AT LAW. the unsoundness ; and if it is alleged it is not necessary to proye it. Trice V. Cochran, 8 Grat. 442. 19. In a declaration on a constable's official bond, the assignment of the breach did not set out specifically the claims put into the constable's hands, but stated that the relator had placed diyers claims in his hands for collec- tion, which were particularly set out in a receipt given by him as constable, and which was thereto annexed, marked A ; and then proceeded to aver the collection of the moneys by the constable, and his failure and refusal to pay over to the relator. The breach was well assigned. Oovernor for Davis V. Eoach et aU., 9 Grat. 13. 20. In an action on an appeal bond, the declaration states under a scilicet, the costs at a certain sum, and makes profert of the record of the court of appeals. The defendant craves oyer of the record, and demurs generally. The record is properly set out in all respects, but the costs endorsed by the clerk of the court of appeals is less than the sum stated in the declaration; that sum including the costs for entering the judgment of the court of ap- peals in the circuit court and issuing the execution upon it. Held: let. The profert of the record did not extend to the endorsement of the costs by the clerk ; and the variance as to the costs was no ground of demurrer. 2d., There was no variance, as the costs in the circuit court were properly embraced in the demand in the declaration, Friend v. Woods, 9 Grat. 37. 21. In dependant covenants in an action by a vendor of land against the purchaser for the purchase money, he must aver either that heliad executed or that he had tendered a deed. The averment that he was ready and will- ing to convey is not sufficient. Boach v. Dickinsons, 9 Grat. 154. 22. In an action on a joint bond, all the obligees must join in the action, or some sufficient excuse for not joining them must be stated in the declara- tion, or the objection is fatal on demurrer. Strange v. Floyd, 9 Grat. 474. 23. In such an action non-payment of the debt to all the obligees must be averred in substance in the declaration, or the objection will be fatal on demurrer. Ibid. 24. A general indebitatus assumpsit may be joined with a count 'in as- sumpsit on a special contract of bailment, setting out the promises and un- dertakings of the defendants, the consideration on which if was founded, the breach of that promise by defendants, and their neglect and careless- ness, and the loss of the plaintiff occasioned thereby. Kennaird, &c. v. Jones, 9 Grat. 183. 25. Upon a contract for the sale of a raft of logs, the balance of the price was to be paid when an act was done by the purchasers, In an action by the vendor to recover the price, he must aver that the act had been done, or that the purchasers had unduly neglected, failed and delayed to do it. Ibid. PLEADINGS AT LAW. 291 26. A demurrer to a declaration is over-ruled in the court below, and the appellate court reverses the judgment. The cause will be sent back with directions that the plaintiff shall have leave to amend the declaration. Strange v. Floyd, 9 Grat. 474. 27. In an action upon a protested negotiable note against the makers and endorsers, the accidental omission of the sum for which the notes was given in the description of it in the declaration, where it appears from other parts of the same court, is not ground of demurrer. Archer v. Ward, 9 Grat. 622. 28. To recover back money paid upon a contract which has been re- scinded, or the consideration of which has wholly failed, the usual and bet- ter mode of declaring is the common count for money had and received. But if the plaintiff declares specially it must appear with sufficient cer- tainty, from the fact? so set out, or from apt averments made in the count, that the consideration has wholly failed, and that such failure did not pro- ceed from any fraud or illegal conduct on the part of the plaintiff. John- • sons ex'a; v. Jenning's adm'r, 10 Grat. 1. PLEAS. i. The declaration charges a trespass in entering plaintiffs close and pulling down his house. The plea avers that the house was in imminent danger of taking fire and of communicating fire to other houses, the repli- cation to the plea alleges that by diligent use of the means in the power of the defendants, the house might have been prevented from taking fire. This is no departure in pleading. • Beach v. Trudgain et als., 2 Grat. 219. 2. In an action against a constable, for taking the property of the plain- tiff, upon executions against third persons, he files a special plea, in which he sets up an indemnifying bond, executed by the plaintiffs in the execu- tions. The plea need not set out the judgments on which the executions issued. Davis v. Davis, 2 Grat. 363. 3. It being necessary to plead a custom and acquiescence therein specially, as a defence to an action, and the proof thereof having been admitted .un- der the general issue on the first trial, without objection by the plaintiff, the defendant will be allowed to amend his pleadings on the return of the case from the appellate court, and plead the matter specially. Oovernor for Liggatt v. Withers, 5 Grat. 24. 4. In an action on a bond given for the purchase money of land, the act of 1831 does not authorize a plea of failure of consideration upon equitable grounds, which would tequire a rescission of the contract out of which the' bond originated, and a re-investment of the obligee with the interest in the land alleged to have been sold to the obligor. Shiflett, &c. v. The Orange Humane Society, 7 Grat, 297. 292 PLEADINGS AT LAW. 5. In an action on a bond given for the price of a slave, a special plea under the act of 1831, may aver in general terms the unsoundness, and the knowledge and fraudulent concealment of the plaintiff; that on discovering the unsoundness the defendant offered to return the slave and demanded a rescission of the contract, which plaintiff refused; laying the damage to the whole amount of the price or not laying any damage, and praying for judgment in bar of the action. Fleming v. ToUr, 7-Grat. 310. 6. There may be an averment of general unsoundness and then an aver- ment of a specific unsoundness ; and under this plea the defendant may ' prove any unsoundness. Ibid. 7. A plea which professes to go to the whole action, but answers only a part of it, is defective and demurrable. Hunt's adm'r v. Martin's adm'r, 8 Grat 578. 8. The plea of non damnijicatus is a good plea only where the condition is to indemnify and save harmless. The plea should go to the right of the action, and not to the question of damages. Archer v. Archer's adm'r, 8 Grat. 539. 9. AVhenever the plea of non damnificatus is a good plea, it is equivalent to the plea of " conditions performed ;" and if this last plea has been iJleaded, it is not error to refuse to admit the first at a subsequent term. Ibid. 10. A plea in abatement of a former action must aver the pendency of the action at the time of the plea pleaded. Archer v. Ward, 9 Grat. 622. 11. Duplidity in a plea can only be objected to by special demurrer. Cunningham v. Smith et als., 10 Grat. 255. DEMURRER. 1. Demurrer to declaration on indemnifying bond sustained. Governor for Leightons v. Hinchmans. J. Grat. 156. 2. Demurrer to declaration upon the official bond of an executor over- ruled. Bush V. Siale, 1 Grat. 229. , 3. DemuiTOT to counts of n declaration upon a bill of exchange sustained as to some, and overruled as to others. Bank U. S. v. Beirne et als 1 Grat- 539. 4. Neither the Commonwealth nor the accused has the right to demur to the evidence in a criminal prosecution, except with the consent of the other party. Sots' case, 1 Grat. 557. 5. Demurrer to indictment for perjury sustained. Roache'scase IGral 561. PLEADINGS AT LAW. 293 6. On a demurrer to evidence the demurrant admits all that can Tie rea- sonably inferred by a jury from the evidence given by the other party and waives all the evidence on his part which contradicts that offered by the other party or tends to establish a case, inconsistent with the case proved by the evidence of the other party. TuM v. Slaughter's adm'r, 5 Grat. 364. 7. A demurrer to an entire declaration, whether general or special, raises the question whether there be or not, matter in the declaration suffi- cient to maintain the action. Henderson v. Stringer, 6 Grat. 130. 8. If there are several counts in a declaration and one of them is good, that is sufficient to maintain the action and a demurrer to the declaration must be overruled. Ibid. , 9. If there be a single count containing several breaches, any one of which is well assigned ; that is sufficient and a demurrer to the whole count must be overruled. Ibid & Wright v. Michie Id., 854. 10. If there be a single count containing a demand of several matters, which in their nature are divisible, any one of which is well claimed, that is sufficient. Henderson v. Stringer Ibid, 130. 11. Whether the objection be that one of several! counts or one of several breaches or that part of plaintiff's demand which is of a distinct and divi- sable nature is bad, the demurrer should be to that count or to that breach or to that part of the demand, as the case may be which is bad. Ibid. 12. A demurrer to a declaration with a statement as special cause of de- murrer, that one of the counts or breaches or parts of plaintiff's demand of a distinct and divisible nature is bad, does not alter the character of the demurrer; and if there be matter enough in the declaration to maintain the action, the demurrer must be overruled. Ibid & WrigM v.- Michie, Id. 854, 13. Upon a demurrer to a declaration for a misjoinder of actions, the ob- jection it well founded goes to the whole declaration. Id., 130. 14. If in an action upon an award, it does not clearly appear that the award does not cover the whole matter submitted, a demurrer to the decla- ration will not be sustained ; but the defendant will be left to his plea of no award. Price v. Via's heirs, 8 Grat. 79. 15. So if the parties may have waived a decision on one branch of the matters submitted, and requested the arbitrators' to decide the other matters, though this is not stated in the declaration, a demurrer will not be sus- tained ; but the plaintiff will be allowed to reply the facts to the pilea of no award. Ibid. 16. In an action at law, the defendant demurs to the declaration and af- terwards agrees the facts and that the court shall render a judgment on 294 PLEADINGS AT LAW. the case agreed. He thereby waives his -demurrer. Roach v. Gardiner, 9 Grat. 89. 17. In an action upon a protested negotiable note, against the makers and endorsers, the accidental omission of the sum for which the note was given in the description of it in the declaration, where it appears from other parts of the same count, is not ground of demurrer. Archer v. Ward, 9 Grat. 622. 18. A demurrer to a declaration overruled and judgment for plaintiff which upon appeal is reversed arid demurrer sustained ; the cause will be sent back with leave to the plaintiff to amend his declaration. Fitzhugh's ex'or V. G. FUzhugh, 11 Grat. 300. OTHER PLEADINGS. 1. The declaration charges a trespass in entering the plaintiffs close and pulling down Tiis house. Tie plea avers that the house was in imminent danger of taking fire and of communicating fire to other houses. The re- plication to the plea avers that by a diligent use of the means in the power of the defendants the house might have been prevented from taking fire. This is no departure in pleading. Beach v. T^rndgain et als., 2 Grat. 219. 2. It is not necessary to state in the replication the means by which the house might have been prevented from taking fire. Ibid. 3. A replication to a plea relying on a covenant, but failing to make pro- fert of it, is demurred to, and the demurrer is sustained on this ground. It is proper to allow the plaintiff to amend the replication by adding the pro- fert of the covenant. Bowles' ex'or v. Elmore's adm'x, 7 Grat. 385. 4. If the parties may have waived a decision on one branch of the mat- ters submitted, and requested the arbitrators to decide the other matters, though this is not stated in the declaration, a demurrer will not be sus- tained ; bnt the plaintiff will be allowed to reply the facts to the plea of "no a.ward." Frice v. Via's heirs, 8 Grat. 79. 5. Tn an action at law, the defendant demurs to the declaration, and af- terwards agrees the facts, and that the court shall render a judgment on the case agreed. He thereby waives his demurrer. Boach v. Gardner, 9 Grat. 89. 6. Upon a motion by a "high sheriff against a deputy and his sureties, they file a special plea denying that the principal was deputy, and the high sheriff replies specially, relying on their bond as an estoppel. The replica- tion is good, though it has not the commencement and conclusion peculiar to a pleading of an estoppel. Cecil v. Farly et als., 10 Grat. 198. 7. The statute, Sess. Acts, 1844, oh. 70, p. 54, in relation to pleading PLEADINGS IN EQUITY. 295 usury, though in terms only applicable to a plea, is properly appli- cable to a replication to a plea of set-off. Hope v. Smith,, sheriff, 10 Grat. 198- 8. In debt on a bond, a plea that it was given for goods bought of the plaintiff who represented that they were sound and marketable, when, in fact, they were unsound and damaged ; and that the plaintiff, at the time of making them, knew that the representations were untrue, and knowingly made them with the intent to defraud the defendant ; and proceeds to set out the unsoundness of numerous articles purchased, and to detail particu- lars in which the representations had turned out to be untrue. This is a good plea. Cunningham v. Smith et als.^ 10 Grat. 255. 9. A scire facias to revive a judgment stated that the judgment had been suspended by injunction. This was unnecessary, and may be regarded as surplusage ; and a plea in bar that the judgment had not been suspended by injunction offered no bar to the scire facias. Richardson's adm'r v. Prince George Justices, 11 Grat. 190. Poindexter's adm'r v. Same. Id. 10. The scire facias further stated that the injunction had been dissolved. A plea that it had not been dissolved is bad, and an issue made up upon it is immaterial. Therefore, though improper evidence is admitted upon it, it is no cause for reversing the judgment. Ibid. PLEADINGS IN EQUITY. 1. Defendants demurrer to a bill being overruled, he may file any suf- ficient answer. Northwestern Bank v. Nelson, 1 Grat. 108. 2. Demurrer to bill for discovery and relief overruled. Ibid. 3. Demurrer to bill for uncertainty overruled. Ibid. 4. Demurrer to bill for want of proper parties overruled. Ibid. 5. When bill for discovery and relief sufficiently certain. Ibid. 6. If the objection to the discovery called for in a bill appears upon the face of the bill, defendant may demur. Ibid. 7. If the objection to discovery called for, does not appear upon the face of the bill, the defendant must claim his protection by plea or answer, the averments of which if traversed by replication must be established by suf- ficient evidence. Ibid. 8. If a plaintiff seeking a discovery relies upon the fact that a prosecu- 296 PLEADINGS IN EQUIiy. tion would be barred by the statute of limitations, this fact should ap- pear from the atatemeots of the bill. Ibid. 9. Demurt-er to bill to reeover land sold for taxes and purchased by the sheriff overruled. Taylor's devisees \. Stringer, 1 Grat. 158. 10. The relief given in equity must be linlited by the pleadings. Swope V. Chambers, 2 Grat. 319. 11. A court of equity can only decree upon the case made by the plead- ings, though the evidence may shew a right in the plaintiff to a farther decree. Mundy v. Vawter et als., 3 Grat. 518. 12. When a bill, in form of a foreign attaShment, sets oat a case for equi- table relief, and contains a prayer fot general relief, it will be treated as a bill for equitable relief. Anderson et als. v. De Soer, 6 Grat. 518. Same v. Gallego's adtn'r et als. Id. 13. A defendant, though in default for want of an answer, ought to be permitted to file any proper answer, at any time before a final decree ; but the trial of the cause is not to be thereby delayed unless for good cause shown. Bowles v. Woodson. 6 Grat. 78. Bean et at. v. Simmons, 9 Grat- 389. 14. Qn^EB : What is a final decree in the sense of the staj;ut6, Sup. Rev. Code, 1819, p. 130 ? Ibid. 15. A defendant in default for want of an answer, files a demurrer to tlie bill, which is over-ruled ; he is not entitled to two months in which to file his answer. Reynolds v. The Bank of Va., 6 Grat. 174. 16. Where a plaintiff comes into equity on the ground of discovery, the whole answer is to be read, if it is used at all, as the testimony of a wit- ness : and no part of it pertinent to the discovery is to be rejected, because it is affirmative matter, in avoidance of that which is admitted to be true. But though the answer is to be read, it is subject to be discredited in the ■ same manner as the testimony of any other witness. Lyons y.'Miller, 6 Grat. .427. 17. The mode in which an exception to an answer shall point out the omission excepted to, is a matter of practice discretionary with the court, and not a subject of appeal. Cradg v. Sebrell, 9 Grat. 131. 18. But if otherwise, the exception being sustained, and the defendant having filed another taswer, there the subject of the exception is properly ended. Ibid. 19. Plaintiff, after setting out his case in his bill, states what he under, stands is the pretension of the defendant. This is not such an allegation as will constitute the answer responsive thereto, evidence, and thus throw POWERS. 297 the burthen of disproving it upon th« plaintiff. Leas' ex'w v. Eidson, 9 Grat. 277, '20. A demurrer to a bill against an absent defendant, for the failure to aver that an attachment had issued, can not be sustained, because the sta- tute in terms provides that this process may issue after the institution of the suit. O'Brien et als v Stephens et als., 11 Grat. 610. POWERS. » 1. A. in a letter authorizes B. and C. to use his name as endorser. This is a joint power to be jointly exercised. Union Bank of Maryland v. Beime, 1 Grat. 226. 2. Under this power B. endorsed the name of A. upom loertain bills, but it did not appear to be done, as by an agent. After some of these bills had* been protested, A. wrote at the foot of the letter " the above is my signature, the legal liabilities of which I hereby acknowledge." Afterwards B. again endorses the name of A. upon other bills in the same manner. A. is not liable on these endorsements. Ibid. 3. ' A^etter of Attorney giving authority to the a.gent to endorse the names of his principals as sureties, construed. Bank of U. S. v. Beime, 1 Grat. 234. 4. An authority to make a joint endorsement of several persons wnl not authorize a several endorsement. Ibid. 5. A marriage settlement gives a power to the wife, to dispose of the settled estate by gift, or devise under her hand and seal, attested by two or more witnesses. Held : Is^ A testamentary paper signed by the wife, with a scroll annexed to her name and attested by the requisite number of witnesses, though the scroll is not recognized in the body of the instrument is a valid will under the power. 2nd, That such a paper duly executed, re- ferring to and recognizing another testamentary paper previously executed according to the statute concerning wills, but not according to the power, will constitute the paper recognized, a valid testamentary paper. 3rd, To give validity to the paper recognized, it is not necessary that it should be incorporated into the paper recognizing it. It is not necessary that the at- testation clause shall state that the paper was duly signed and sealed by the testatrix. 4tb, Parol testimony is admissible to shew that the scroll was put upon the paper, by the direction of the testatrix, as a seal. 5th, Though the name of the witness was put to the paper, not as a witness, but for some other reason, yet, if the testatrix afterwards requests the witness to attest the paper, and she adopts the signature already tihere, it is a valid attestation. Pollock- and wife v. Glassel, 2 Grat. 439. 298 POWERS. 6. A deed having been executed by a person professing to act under a power of attorney from the owner of the land conveyed, and a sufficient time having since elapsed to bar a writ of right without any claim by the original owner or his heirs, a presumption amounting to full proof arises, that the person professing to act under the power was duly authorized to execute the deed. Goodwin v. McCluer, 3 Grat. 291. 7. A power of attorney may be admitted to record on the acknowledg- ment thereof before two justices of the peace, though the certificate does not certify the instrument to any court or clerk's office for the purpose of being recorded. Shanks et als v. Lancaster, 5 Grat. 110. 8. The act, 1 Rev. Code, ch. 99, g 15, p. 3g5, does not embrace powers of attorney, or authorize two justices to take and certify the privy examina- tion of the wife as to ~her execution thereof. Ibid. 9. A deed of husband and wife executed under a power of attorney, is the deed of the husband, though it is void as to the wife, the power being "void as to her. Ibid. 10. The deed of the collector of the direct tax, under the act of Congress of 9th January, 1815, does not furnish prima facie evidence of the regu- larity of his proceedings. Jesse v. I^eston, 5 Grat. 120. Keiih V. Ftes- ton. Id. 11. A party claiming title under a deed from a collector of the United States, for land sold for the direct tax, must show that everything has been done which the law requires to be done before making the sale. Ibid. 12. The deposition of the collector in general terms that everything had been done precisely as the law required, is not sufficient evidence of the &ct. Ibid. 13. The recitals in the deed of the marshal, purporting to convey land under a decree, are no evidence of his authority to convey, against an ad- verse claimant. Masters v. Varner's ex'ors, 5 Grat. 168. 14. A decree directing a conveyance of land by the marshal is not of itself competent evidence of the marshal's authority to convey the land em- braced in his deed, unless it designates the land directed to be conveyed ; but the whole record, or so much as will show the land intended by the de- cree, must be produced with it. Ibid. 15. By a marriage settlement, the whole interest in the wife's property is vested in her. She has the full power of disposing of or charging her per- sonal estate, to all intents and purposes, as if she were a, feme sole; and, this, though there is a clause prescribing the mode of disposition. Woodson, trustee v. Perkins, 5 Grat. 345. 16. A wife having absolute power of appointment over land, or writing under her hand and seal, or last will and testament, her deed, by which she POWERS. 299 relinquishes her right for value, destroys her power of appointment, though she is not privily examined. Hume v. Hard et als., 5 Grat. 374. 17. The wife having the absolute right to give the land to whom she pleases, by the execution of her power of appointment, she has the right, for value, and with the assent of all persons interested in the land, to de- stroy the power in the same mode. Ihid. 18. A commissioner for the sale of delinquent lands, conveys under a power, and a deed executed by him to other persons than those reported by him as the purchasers, can avail nothing where his authority to make it does not appear, unless long acquiescence and possession raise a presnmp- , tion in its favor. Walton v. Hale, 9 Grat. 194. 19. A devise that executors shall sell land, confers a naked power ; but when coupled with directions that the proceeds shall be equally divided between specified persons, it vests in the executors an interest and a trust, and it is their duty to take possession of the land, and account for the rents and profits. Mosby's adm'r et als. v. Mosby's adm'r, 9 Grat. 584. Miller v. Jomes et als. Id. 20. One of the executors having died, and the other having been removed, and administration committed to the sheriff, under the act of 1819, 1 Kev. Code, ch. 104, ^ 52, p. 388, he was authorized as such administrator, to exe- cute the power and trust, and is liable for the rents. Ibid. 21. A power of attorney and a deed of trust to secure debts are made at the same time, by and to the same party, having reference to merely the same property, and the same debts. The power of attorney is not revoked by the deed ; but they will be considered as one instrument, and construed together. French v. Townes et als., 10 Grat. 513. 22. A testator says, having implicit confidence in my wife P., and know- ing that she will distribute to each of my children in as full and fair a manner as I could, I hereby invest my said wife, F., with the right and title of all my property, both real and personal, to dispose of to each ^ my children in any way she may think right. By a subsequent clause,** it was provided, that if F. died without making a will, the children should have an equal share of his estate. Held : 1st. That F. has an unlimited discre- tion as to the time and manner of distributing the property among the tes- tator's children. She may distribute it, or any part of it, in her life-time or at her, death, by any instrument adapted to pass property of the kind which she distributes ; and she may distribute to either child such kind of property as she may choose to give him or her. 2nd. That F. may sell the whole or any part of the property and distribute the proceeds of sale. 3rd. That F. having a discretion as to the time and manner of distribution, a purchaser of land from her is not bound to see to the application of the purchase money. 4tb. Quaere : ireach child is entitled to have ultimately an equal share of the estate. Steele v. Levisay et als., 11 Grat. 454. See Pkincipai and Agent, and Wills. SOO PRACTICE AT LAW. PRACTICE AT LAW. 1. Evidence, | 3. New Trials, 2. Instructions, I 4. Other Matters. EVIDENCE. 1. Interest paid on a bond in advance for three years, and this stated in thfi bond ; but paid in land at a price fixed in reference to the annual in- terest for three years, is not usurious ; and plaintiff may prove the faets on the trial. Porterfleld v. Coiner, 4 Grat. 55. 2. To repel the intent to take usurious interest, plaintiff may show the value of the land at the time of the contract. Ibid. 3. On the warranty of soundness of an animal, it is for the jury to say what is embraced therein ; and on that question the qualities and uses for which the animal is purchased and sold, may be referred to as explaining what was intended to be included in the waiTanty. Thornton v. l^ompson et als., 4 Orat. 121. 4. If the courj; permits improper interrogatories to be filed, and directs them to be answered, the party to whom they are directed may answer them, and on the trial of the cause may object to their admission as evi- dence. Poindexter, &c. v. Dams et aZs., 6 G-rat. 481. 5. A party to a cause, is not bound to answer interrogatories which aiay subject him to a penalty, or forfeiture. Ibid. 6. This rule is not confined to cases where the purpose of the suit is to enforce the penalty or forfeiture, but extends to those where the discovery itself would expose the party to some action, or any criminal or penal pro- seei^on, tending to the like result. Ibid. 7. la assumpsit, defendant pleads " non assumpsit," and with it files aa affidavit of set-aff, and the set-off, which is a note. Though there is no plea of set-off or bill of particulars, the evidence in relation to the set-off is pro- perly admitted. Bell v. Cmw/ord, 8 Grat. 110. 8. In an action on a constable's official bond, the assignment of the breach sets out specifically the claims for which his receipt was given, but an error is committed in stating the amount of one of the claims. This is no good ground for excluding the receipt as evidence as to the other claims, which are correctly described ; but the jury should be instructed that it is not evidence as to the claim not correctly set out. Governor for Davis v, Eoach et als., 9 Grat. 13. 9. In an action of trespass, assault and battery, the plea is " eon assault PRACTICE AT LAW. 301 demesne," and the replication is " de injuria." It is the plaintiff's right to introduce his evidence first. Young v. Highland, 9 Grat. 16. 10. In such a case, if the defendant is permitted to commence and intro- duce his eviflence first, it is still the right of the plaintiff to introduce his evidence to prove the assault and battery charged in the declaration. Ibid. 11. It is the right of the plaintiff to commence and introduce his evi- dence in all oases for unliquidated damages, though the general issue is not pleaded ; whether the action is ex delicto, or ex contractu. Ibid. 12. Where a party moves the court to exclude evidence, he should specify the evidence to which he objects. And where the motion is to exclude a mass of evidence, some of which is proper to be received, the motion may be properly over-ruled on account of its generality. Friend v- Wilkinson & Hunt, 9 Grat. 31. 13. The act incorporating the North-western Bank of Virginia is a pub- lic act, of which the courts will take judical notice ; and in an action by the bank, it is not required to prove its incorporation. Hays v. North- western Bank of Va., 9 Grat. 127. ^ 14. A party complaining of the admission of improper evidence, must state the facts in his bill of exceptions, from which it will appear affirma- tively, to the appellate court, that the evidence was improper. Johnson's e£x V. Jenning's adm'r, 10 Grat. 1. 15. The affidavit of a witness that from his age and infirmities he is un- able to attend the court without endangering his life, made eight days be- fore the cause is called for trial, is sufficient to authorize his deposition', which had been taken de bene esse, to be read as evidence. Tayloe v. Smith, 10 Grat. 557. 16. Upon a motion by a creditor against a high sheriff for the default of his deputy in permitting, a debtor in execution to escape, the court occupies the nlaoe of a jury as to the facts, and is bound, upon a return of "exe- cuted," and upon proof of escape, to presume that it was with the coS^t of the sheriff, unless he proves that it was without his consent or negligence, and that he had used due means to re-take the prisoner. Stone v. Wilson, 10 Grat, 529. 17. Whether a plaintiff shall be permitted to introduce further evidence, after the defendant's evidence is introduced, is a matter within the discre- tion of the court trying the cause, and its exercise will rarely, if ever, be controlled by an appellate court. Clearly, he has a right to introduce evi- dence to rebut that of the defendant. Brooks v. Wilcox, 11 Grat. 411. 18. Though the defendant has announced that he is through with his parol evidence, yet, under circumstances, the court should permit him to recall a witness for the plaintiff, who had ireferred to the plaintiff's books, and to have them produced. McDowell's ex'or v. Crawford, 11 Grat. 378. 302 PKACTICE AT LAW. 19. If a deed of the defendant is introduced collaterally upon a trial, as evidence, he may sh9w that it is not his deed, without making oath to the fact. And for this purpose he may introduce a subscribing witness to it, to prove that it was misread to the defendant. Harrison v. Middleton, 11 Grat. 527. 20. A witness may refresh his memory by reference to a paper, whether an original or a copy, and whether written by himself or another. But he must tlien speak from his own recollection, thus refreshed. Ibid. 21. But a surveyor who made a survey from a diagram handed him by the plaintiff, and which he has in court, may refer to the courses and dis- tances on the diagram, though he may net be able to remember them inde- pendent of it. The diagram is itself evidence, and he may point out on it the lines he ran. Ibid. 22. An extract or copy froni his field notes, taken by a surveyor, is not evidence; and he can only use it to refresh his memory, and must then speak from his recollection. Ibid. 23. A witness is called who is objected to as being interested, and proof aliunde of his interest is introduced. He is then examined on his voir dirt by the party calling him, to show that he has no interest, and this is objected to by the other party ; but, before he is sworn in chief, a deed is produced, which shows he has no interest. If it was error to examine him on his voir dire, it was cured by the proof of his want of interest before he was sworn in chief, ibid. , INSTRUCTIONS. 1. In a joiilt action of trespass against several, who plead jointly, it is not correct for the court to instruct the jury that they may sever in the damages and assess what respectively, in their opinion, each party found guilty ought to pay. Crawford v. Morris, 5 Grat. 90. 2Mn such case the jury should assess against all who are found gtfilty, the amount which they think the most guilty should pay ; the above in- struction therefore is not an error of which the defendant can complain in an appellate court. Ibid. 3. An opinion expressed by the court upon the first trial of a cause, where there was no verdict or the verdict was set aside, is improper for the consideration of the j ury on a second trial, unless asked for. Ibid. 4. If such opinion be relied on at the second trial, the appellate court will consider it, and if it is erroneous will reverse the judgment and award a new trial. Ibid. 5. If there is any evidence before the jury tending to prove a case sup- posed in the instruction asked for, if the instruction propounds the law PRACTICE AT LAW. 303 correctly, it should be given. Hopkins, Brother & Co. v. RicJiardson, 9 Grat. 485. 6. An instruction which' is not relevant to the evidence in the cause or which is only relevant to written evidence which does not sustain it may be properly refused. The court being the proper tribunal to construe the written evidence. Johnson's eafx v. Jennings adm'r, 10 Grat. 1. ■ 7. In ejectment, the Court of Appeals having decided that certain evi- dence is insufficient to establish adverse possession ; upon a second triatthe evidence being substantially the same, the party in whose favor the decision is entitled to have an instruction to the jury to disregard all the parol evi- dence, introduced for the purpose of proving the adversary possession. Paslei/ V. English, 10 Grat. 236. ^ 8. The evidence of adversary possession being to be disregarded, it is error to instruct the jury that if such evidence proves an adversary posses- sion of twenty years, under claim of title, the party is entitled to recover. Md. 9. The court may refuse to give an instruction, because it is so obscurely expressed as to leave in doubt the meaning intended. Levasser v. Wash- burn. 11 Grat. 572. 10. The court should refuse to give an instruction where it is obscure and calculated to mislead the jury ; or where it asks the court to decide upon a fact in issue in the cause, or where it is irrelevant or not applicable to the evidence. Kincheloe v. Tracewell, 11 Grat. 587. 11. Upon a motion by the plaintiff to instruct the jury to disregard all the documentary evidence of the defendant, of which some parts are legal and other illegal, the court may properly overrule the motion, without un- dertaking to state to the jury which is legal and which illegal. Ibid. NEW TRIALS. 1. The court before which a cause has been tried, may, upon overruling a motion for a new trial, refuse to certify the evidence or the facts, where the testimony is'conflicting or depends upon the credibility of the witnesses, which is impugned. Taliaferro v. Franklin, 1 Grat. 332. 2. Where a trial is had before a jury and they cannot agree upon a ver- dict or do agree upon a verdict, which is set aside by the court and a new trial awarded, upon the new trial, any opinion expressed by the former jury or by the court upon a former trial is improper for the consideraUon of the jury. Crawford v. Morris, 5 Grat. 90. 3. If an opinion or instruction of the court, given on the former trial is relied on before the jury on the second trial, by the party inwhose' favor it was given, without asking for such instruction from the court, and a ver- dict and judgment are rendered for him, the appellate court will consider 304 PRACTICE AT LAW. the opinion or instruction so relied on, and, if it is erroneous, ■will reverse the judgment and award a new trial. Ibid. 4. Under the circumstances, a verdict was set aside on the evidence of jurors that they rendered their verdict under a mistake as to its legal effect. Moffeft V. Bowman, 6 Grat 219. 5. A verdict which is in all respects fair, and, in the judgment of the court which tried the cause, in conformity to the evidence, will not he set aside on the testimony of a few of the jurors that they had been induced to agree to the'verdict under a misapprehension of an instruction of the court. Hwnsbarger's adm'r v. Kinney, 6 Grat. 287. 6. A court having granted a new trial of a cause, there is a motion to re- consider the opinion, and the court takes time till the next term to cAisider the motion, and at the next term sets aside the order granting the new trialj and enters a judgment on the verdict. There is no error in continuing the motion. Ehea v. Gibson's ei^or, 10 Grat. 215. 7. A comment of the judge upon the weight of the evidence in the cause, when excluding other evidence offered, being calculated to mislead the jury, is a ground for a new trial. McDowell's eiior v. Crawford, 11, 378. ^ OTHER MATTERS. 1. The court below having given judgment for the plaintiff in a seire facias against bail for too large an amount, the appellate court will reverse the judgmept and give judgment for the proper sum. Bowyer v. Hewitt, Ruffner & Co., 2 Grat. 193. 2. Where a suit has been brought against a member of the General As- sembly, and the process has been served upon him, and an office judgment ^ntered up against him at the rules; and confirmed while his privilege ex- isted, he may at the next term of the court, though his privilege has then ceased, upon motion, have all the proceedings subsequent to the issue of the process set aside, and the cause remanded to the rules. McPherson v. Nesmith attd wife, 3 Grat. 237. 3. Interest paid on a bond in advance for three years, and this stated in the bond, but paid in land at a price fixed in reference to the annual in- terest for three years, is not usurious ; and plaintiff may prove the facts on the trial. PorterfieU v. Coiner, 4 Grat. 55. 4. To repel the intent to' take usurious interest, plaintiff may shew the value of the land at the time of the contract. Ibid. 5. A motion to quash a writ and inquisition founded on a judgment, must be made in the name of a party on the record, and must be against such a party. Wallop's adm'r v- ■Scarburgh et als., 5 Grat. 1. PRACTICE AT LAW. 305 6. A stranger having acquired an equitable right to the benefit of an execution, or to the property on which it is levied, will generally have au- thority to sue out and conduct the'prooess, or to object to its regularity or validity ; but he must do it in the name of a legal party to the process, or one who can be made so. And his authority to use the name of the party to the process in a court of law will be so far recognized by such court as to preclude the intervention of such party for the purpose of defeating it. Ibid. 7. On a motion for a continuance of a cause on account of the absence of witnesses, if the facts expected to be proved by them are stated, and it does not appear that the proof of the facts might be material on the trial; the continuance should be refused. N(ish v. Upper Appomattox Company, 5 Grat. 332. 8. In an action on an indemnifying bond, the relator claims title to the property sold under a sale by deed made- by one partner without the knowl- edge or consent of the other, of partnership property. The relator may recover for the undivided interest of the partner who made the sale, under a general allegation in the declaration, of his ownership of the property. Fo/rkmr v. Stuart &c., 6 Grat. 197. 9. A defendant in an action at law, not having entered his appearance, either at rules or in term, has a right on the calling of the cause to object that it has not been legally matured for trial. Hickson-v. Larkey, 6 Gpat. 210. , . 10. In considering such objection all the process, returns and proceedings are necessarily a part of the record, and are tO'be looked into. Ihid. 11. A writ which purports to be a pluries capias but which is without date, and is not attested by the clerk, is wholly null and void as process ; and an order based thereon, directing a proclamation to issue, and all the subsequent proceedings are without warrant and illegal. Ibid. 12. A county court makes an order opening a road, but does not direct the damages assessed to the contestant to be paid to him. The court may, at the next term, with the consent of the parties, reinstate the cause. White y. Coleman, 6 Grat. 138. , 13. On a warrant of unlawful entry and detainer against two, the war- rant is executed on one, but not on the other : The plaintiff may proceed against the one upon whom the warrant has been executed. Harman v. Oddl, 6 Grat. 207. 14. No further proceedings can be had upon that warrant against the one upon whom it has not been executed, before the return day thereof. Ibid. 15. A tender of money in payment of a judgment will not authorize the T 306 PRACTICE AT LAW. quashing an execution issued thereon, unless the tender is followed by the payment of the money into court, and a motion to enter satisfaction on the record. Shumalcer v. Nichols, 6 Grat. 592. 16. The penalty and condition of a bond for the payment of money are in the same sum. It is proper to treat it as a single bill, and to give judg- ment for the amount of the bond with interest from the time of payment. Fleming v. Toler, 7. Grat. 310, 17. Judgment by default against an executor de bonis propriis: If erro- neous it should be correqted by motion to the court and not by appeal. Snead v. Coleman & wife, 7 Grat. 300. 18. In a proceeding of forcible entry and detainer, the court is consti- tuted and then adjourns to a day certain. The court failing to meet on the day to which it is adjourned, the. cause is not discontinued, but stands ad- journed by operation of law to the bext term of the county court. Mann V. Gwinn ei als., 8 Gratt. 5S. 19. Upon an appeal by the overseers of the poor from a judgment of the county court in a case against the putative father of a bastard child, the circui-t court upon reversing the Judgment, should not send the case back for a new trial, but should render a judgment in favor of the overseers of the poor for the amount appearing to be due, but without interest. Willard V. Overseers of the Poor of Wood County, 9 Grat. 139. 20. The disregard by The circuit ■court of a rule adopted by itself, for the regulation of the practice there, is not a ground of appeal. Hudson v. Mine, 9 Grat, 3,79. 21. An action may be brought on an injunction bond, where the injunc- tion is dismissed at rules, before the order is confirmed in court. Boach V. Gardner,.^ (j-cdX. 89-. 22. An endorsement of the name of the sheriff on a prison bounds bond, before an action is brought upon it, is a sufficient assignment thereof, and the action may be maintained by the creditor as assignee, without writing out the assignment, or the assignment may be written in the progress of the trial. McGuire et als. v. Pierce, assignee, &c., 9 Grat. 167. 23. A party, complaining of the admission of improper evidence must state the facts in his bill of exceptions, from which it will appear affirma- tively, to the appellate court, that the evidence was improper. Johnson's ex'x V. Jenning's adm'r, 10 Grat. 1. 24. The affidavit of a witness that from his age and infirmities he is un- able to attend the court without endangering his life, made eight days before the cause is tried is sufficient to authorize "the reading of his deposition, which had been taken de bene esse. Tayloe v. Smith, 10 Grat. 557. 25. Upon a motion by a creditor against a high sheriff for the default of PRACTICE AT LAW. 307 his deputy in permitting a debtor, in execution to escape, the court occupies the place of a jury as to the facts and is bound upon a return of " exe- cuted" and upon proof of escape, to presume that it was with the consent of the sheriff, unless he proves that it was without his consent or negli- gence and that he had used due means to retake the prisoner. Storie v. Wilson, 10 Grat. 529. 26. It was not improper before the act. Code, p. 706, ? 9, to render a judgment for costs in favor of a defendant against a person for whose benefit the suit was brought, when the defendant succeeded in the case. Pates v. St. Clair, 11 Grat. 22. 27. A judgment being rendered by consent of parties, by their attorneys, is a judgment by consent of .the attorney of the party for whose benefit the suit was brought. Ibid. 28. If a case of unlawful detainer has been pending in the^ounty court for more than twelve months without a final decision, it may be removed on motion, to the circuit court. Harrison v. MiddUton, 11 Gratt. 527. Eineheloe v. Tracewells, Id. 587. 29. All civil causes of which the circuit court has either original or ap- pellate jurisdiction, may be removed from the county to the circuit court, upon motion, after they have been pending in the county court for one year. Ibid. 30. The year is tojbe counted from the organization of the court sum- moned to try the unlawful detainer. Ibid. 31. An action on the case against the personal representative of a vendor, for fraud in the sale of an unsound slave, to the plaintiff, which he was in- duced to purchase by means of a false and fraudulent warranty, or the fraudulent concealment of unsoundness, cannot be maintained ; and though there is a judgment for the plaintiff the error is not cured by the statute of jeofails ; 1 Rev. Code 1819, ch. 28, ^ 108, p. 511. Boyles' adm'r v. Overby, 11 Grat. 202. 32. In such a case, though there is a verdict for the plaintiff, judgment should be rendered for the defendant. Ibid. ' See Pleadings at Law. 308 PRACTICE IN CHANCERY. PRACTICE IN CHANCERY. 1. Bms AND Petitions, 2. AnStters, 3. Evidence, 4. Issues out or Chanceet, 5. Decrees and Orders, 6. Relief. 7. In Appellate Cocrt, 8. Other Matters. BILLS AND PETITIONS. 1. If the objection to a discovery appears upon the face of the bill, the defendant may demur to it. Northwestern Bank v. Nelson, 1 Grat. 108. 2. A bill Ijijiving been taken for confessed as to one of several sureties in a guardians bond, which is void, should be dismissed as to him as well as to the others who had made defence. Austin v. Richardson, 1 Grat. 310. 3. A bill should not be dismissed for defect of parties, if the plaintiff has shewn himself entitled to relief on the merits ; but he should be al- lowed to amend his bill, and make the necessary parties. Jameson's adm'x V. DesMelds, 3 Grat. 4. . 4. A cause is ready for decision as to the substantial parties at a regular term of the court. At a following intermediate term, the plaintiff amends his bill to which a formal party, who comes in and answers at the same term, and consents that the cause may be the? heard. The court may hear the cause at the intermediate term, though it is objected to by a substantial party, as to whom it was ready at the preceding regular term. Robinson's efMr's V. Day, 6. Grat. 56. 5. Bill by party having a life estate in slaves, to enjoin the removal of the slaves from the State, by party in possession claiming; them. The plain- tiff dies, the remainderman may then file his bill in the same court for the same objects. Ibid. e. Though a deed of trust secures creditors in several classes, one or more may sue for the benefit of all, to have the trusts executed, where the trustees refuse to act. Reynolds v. The Bank of Virginia ei als., 6 Grat. 174. 7. Legatees having obtained a decree ascertaining the rights of all, oA another bill to enforce the decree, they seeking satisfaction out of a com- mon fund, it is proper for all of them to unite in one suit to get the benefit of the former decree in their favor ; and the bill is not multifarious. Shel- don et als. v. Armsiead's adm'r et als., 7 Grat. 264. 8. If the first decree was in favor of all, and on appeal this decree was affirmed, though the decree in the court below, for some cause, omits to de- PRACTICE IN CHANCERY. 309 wee in favor of one legatee, he may unite with the others in a bill to en- force the first decree. Ibid. 9. Heirs residing out of the State having instituted a suit for the sale of land descended to them, and the same having been sold, and the proceeds being in the hands of a commissioner directed by the court to collect thfem, a creditor of the ancestor seeking to subject these proceeds to the payment of his debt, should apply by petition to the court to be made a party in the cause and to have the fund applied by proceedings in that cause to the payment of his debt. Or if he proceeds by foreign attachment, the commissioner should be a party, and be restrained by. endorsement on the ^ocess from disposing of the proceeds. Or if the creditor proceeds against the heirs to marshall the assets, there should be an injunction to restrain the commissioner from paying away the money in his hands. And the commissioner, though a party as administra- tor of the debtor to the creditor's suit, but having in fact no knowledge of the object of it, paying over the money to the heirs under the order of the court whose commissioner he is, will not be affected by the lis pendens of the creditor's suit, so as to be liable to pay it over again to the creditors. Carringion et als. v. Didier, Norvell & Co., 8 Grat. 260. 10. Where there is a proper case upon the merits for jelief, the bill should not be dismissed for want of parties, or of proof that the parties are what they profess to be ; but the court should direct the plaintiffs to amend their bill and make the proper parties, and direct a commissioner to ascer- tain and report the persons entitled to the property. Ball et als. v. John- son's ex'or et als., 8 Grat. 281. 11. A bill being filed for a speciflo execution of a eontract for the ex- change of lands, if it appears in the progress of the cause that the defend- ant cannot comply with his contract, the plaintiff may amend his bill and . ask for a rescission of the contract, and for such other relief as under the circumstances he is entitled to. Parrill v. McKinley, 9 Grat. 1. 12. A bill of injunction to a judgment at law, shewing no equity upon its fabe, may be dissolved without answer. Slack v. Wood, 9 Grat. 40. 13. A party having an interest in the subject of a suit, but suing in a wrong character, his' bill will not be dismissed, but he will have liberty to amend and make the proper parties. Sillings et als. v. Bumgardner, guar- dian, 9 Grat. 273. 14. Plaintiff, after setting out his case in his bill, states what he under- stands is the pretension of the defendant. This is "not such an allegation as will constitute the answer responsive thereto evidence, and throw the burden of disproving it upon the plaintiff. Leas' ex'or v. Eidson, 9 Grat, 277. 15. If a bill does not state a case proper for relief in equity, the court 310 PRACTICE IN CHANCERY. will dismiss it at the hearing, though no objection has been taken to the jurisdiction. Hudson v. Kline, 9 Grat. 379. 16. The whole facts of a case appearing from the records of other ended causes filed with the hill, the court may pass upon it upon a demurrer to the bill, without requiring the defendant to set out his defence in an an- swer. Young's adm'r & Bowyer v. McClung ei als., 9 Grat. 386. 17. A bill to marshall assets, or for their administration, should be in behalf of the plaintiff and all other creditors, and the heirs and devisees should be parties. But if the proper parties are not made, the bill should not.be dismissed, but th* plaintiff should have leave to amend and fnake the proper parties unless a^decree for an account has been made in another suit having the same object. Stephenson v. Taverners, 9 Grat. 398. 18. Though the proceeding under the statute, 1 R. C. 1819, ch. 96, | 20 ; Sup. R. C. ch. 149, § 2, for the sale of infants' lands, may be, and usually is, by bill, it is not necessarily so, but may be tiy petition or motion ; and the parties being summoned, the evidence may be heard in court, and the necessary orders and proceedings may be made and had therein. Parker et als. V. McCoy et als., 10 Grat. 594. 19. Upon a bill against a trustee and cestui que trust in a deed, the trus- tee answers and puts the allegations of the bill in issue, but the bill is taken for confessed as to the cestui que trust. The answer of the trustee protects the cestui que trust and the plaintiff mUst prove his case as to both. Johnson v. Zane's trustees et als., 11 Grat. 552. ANSWER. 1. C. files a bill against M., to which K. should have been made a party, bat was not, and 0. obtains a decree affecting the rights of K. K. then files a bill in the same court against C. to enjoin his decree. C. answers K's bill and by the bills and answers in the two suits, the respective claims of C. and K. are fully presented. The causes come on to be heard together in the court below and a decree is made from which there is an appeal. The appellate court will consider the bill of K. as an answer and cross-bill in the first cause and decide the case upon the merits, without sending the causes back for an answer of K. in the first suit. Kyle's ex'or v. Kvle 1 Grat. 526. 2. A defendant in equity allowed to amend his answer in order to plead the statute of limitations, in bar of the plaintiffs claim. White v. Turner's adm'r, 2 Grat. 502. 3. A defendant, though in default f6r want of an answer, ought to be permitted to file any proper answer at any time before a final decree, but the trial of the cause is not to be thereby delayed, unless for good cause shewn. Bowles v. Wilson, 6 Grat. 78. Beane et als. v. Simmons, 9 Grat. PRACTICE IN CHANCERY. 311 4. A defendant in equity who is in default, flies a demurrer to the hill, which is over-ruled ; he is not entitled to two months in .which to file his answer. Reynolds v. The Bank of Virginia, (vol. 6) 174. 5. Bill to enjoin judgment on a note charges fraud in the payee in pro- curement of the note, and that it was assigned to the holder, who recovered judgment thereon, but does not charge that l,he holder was an endorsee without value, or that he had notice of the fraud. The defendant says in his answer that he is a holder for value, without notice of the fraud, and fetes the consideration he gave for the note. These statements in the an- swer not being responsive to the bill must be proved. Vaihir v. Zane, (vol. 6) 246. 6. Where the plaintiff comes into equity on the ground of discovery, the whole answer is to be read, if it is used at all, as the testimony of a wit- ness ; and no ^art of it, pertinent'to the discovery, is to be rejected because it is affirmative matter in avoidance of that which is admitted to be true. But though the answer is to be read, it is subject to be discredited in the same manner as the testimony of any other witness. Lyons v. Miller, (vol. 6) 427. 7. The mode in which an exception to an answer shall point out the omission excepted to, is a matter of practice discretionary with the court and not a subject of appeal. Craig v. Sebrell, (vol. 9) 131. 8. Upon a bill against a trustee and cestui que trust in a deed, the trustee answers and puts the allegations of the bill in issue; but the bill i? taken for confessed as to the cestui que trust. The answer of the trustee protects the cestui que trust, and the plaintiff must prove his case as to both. John- ston V. Zan^s trustees et als. (vol. 11) 552. , EVIDENCE. 1. Suits by a trustee and a cestui que trust, depending in the same court and against the same parties, for the recovery of the trust property, are not so connected that the testimony taken in the one may be read in the other. Sheppards v. Turpin, 3 Grat. 373. 2. Bill to enjoin judgment on a note, charges fraud in the payee in the procurement and that it was assigned to the holder who recovered judg- ment thereon, but does not charge that the holder was an endorser, without value or that he had notice of the fraud, the defendant says, in his answer, that he is a holder for value, without notice of the fraud and states the con- sideration he gave for the note. These statements in the answer not being' responsive to the billj must be proved. ¥athir v. Zajie, 6 Grat. 246. 3. In a bill by persons claiming to be legatees or assignees of legatees, against defendants as legatees, or assignees of legatees, under the same will, for distribution of the slaves bequeathed to the legatees jointly, the presumption is, in the absence of all pleadings and proofs to the contrary, 312 PRACTICE IN CHANCERY. that the persons made parties to the suit as legatees are not flctitious per- sons or mere pretenders to the characters assumed in the proceedings. Ball et als. v. Johnson's ex'or et als., 8 Grat. 28L. 4. In a bill by a party claiming to be a corporation, the defendant denies that the corporation has been regularly organized. If the plaintiff fails to prove it, the bill must be dismissed. Bowyer's adm'r et als. v. The Giles, Fayette <& Kanawha Turn. Co., 9 Grat. 109. 5. Up^n a motion against a plaintiff in equity for security for costs, abifl of exceptions is taken to the opinion of the court, which states the evidence introduced on the motion. There is no objection to this mode of putting the evidence upon the record. Evarts v. Bradshaw et als., 10 Grat. 207. ISSUE OUT OF, CHANCERY. 1. On a bill filed to enjoin a judgment on the ground that it Vfas founded on a gaming debt, it being doubtful on the evidence whether such was the consideration, or if it was, whethier the plaintiff in the judgment, who was a transferee of the debt, had not been induced to take the transfer by the concealment or misrepresentation of the debtor, the court should continue the injunction, and direct an issue to ascertain the facts. Nelson's adm'r v. Armstrong et als., 5 Grat. 354. 2. Where the matter in controversy is of the nature of unliquidated damages, and the accuracy and credit of the witnesses is impeached, an is- sue should be directed. Isler and wife v. Grove and wife, 8 Grat. 257. 3. In a suit in equity if there be no conflict of testimony, no ambiguity or uncertainty, but a simple failure to prove material facts, it is improper to direct an issue. Reed v. Chine's heirs, 9 Grat. 136. Wise v. Lamb, Id. 294. 4. In such case if an issue is directed, and there is a verdict sustaining the charges in the bill, the decree should be for a dissolution of the injunc- tion and a dismissal of the bill. Id, 294. 5. In a chancery cause, if upon the state of the proofs at the time an is- sue is directed, the bill should be dismissed, it is error to direct it. And although the issue is found for the plaintiff, the bill should, notwith- standing, be dismissed at the hearing. Smith's adm'r v. Betty et als., 11 Grat. 752. Same v. Thurman et als. Id. 6. When the allegations of the bill are positively denied by the answer,, and the plaintiff has failed to furnish two witnesses, or one witness and cotroborating circumstances, in support of the bill, it is error to direct an issue. The onus must be shifted, and the case rendered doubtful by the conflicting evidence of the opposing parties before an issue should be ordered. Ibid. PRACTICE IN CHANCERY. 313 DECREES AND ORDERS. 1. A decree should not be made against the surety of a guardian until the account of the administratrix of the guardian is settled, and an enquiry- is direjjteii to ascertain whether any estate, real or personal, of the guardian remains. Roberts v. Colvin, 3 Grat. 358. 3. A court of equity can only decree upon the case made hy the plead- ings, though the evidence may show the plaintiff's right to a further decree. Mundi/ V. Vaioier ei als., 3 Grat. 518. 3. A court of equity will decree over in favor of a purchaser of land, who has been deprived thereof, against his grantors, they being parties to the suit, and his right to relief arising upon the pleadings and proofs lie- tween the plaintiff and said purchaser and his grantors. And this, though he has a remedy at law upon the warranty in his deed. Ibid. 4. Though a defendant in equity has not appeared and filed his answer, and the bill has been taken for confessed, it is error to hear the cause and pronoupoe a final decree upon a commissioner's report which has not been returned to the court thirty days before the term at which the cause, is heard.' Gray V. Dickinson's adm'rs, 4 Grat. 87. 5. A slave having remained with the loanee more than five years, and after the death of the loanee having been taken possession of by the lender, creditors of the loanee levy executions on the slave in possession of the legatee of the lender, who enjoins the sale ; upon the hearing the court may decree a sale of the slave to satisfy the executions ; and a cross bill is not necessary. Tay),ar v. Beale et als., 4 Grat. 93. 6. On a bill by heirs to recover the estate of their ancestor, their claim being sustained, and one of the heirs not having been heard from for 17 years, and being then an infant, her share was divided among the other heirs, upon their executing bonds to the judge and his successors in office to identify the party from whom the estate is 'recovered, against the claim of the absent heir. Norman's ex'x v. Cunningham and. wife et als., 5 Grat. 63. 7. A court of equity, at the suit of a judgment creditor, sets aside a sale by the debtor of personal property, as fraudulent and void, and directs the purchaser to deliver the property to a commissioaer, who is directed to sell it. The purchaser fails to deliver the property to the commissioner, and then the court directs an account of its value, in order to subject the purchaser for the amount. This is proper practice. McNew y. Smith, 5 Grat. 84. 8. If a judgment debtor has conveyed away lands fraudulently, and re- tains other lands, the court, on setting aside the conveyance at the suit of the judgment creditor, should direct a sale of a moiety of the whole, em- 314 PRACTICE IN CHANCERY. bracing in the moiety decreed to he sold the land retained by the debtor, and taking only so mach of the land conveyed as will, with the land re- tained by the debtor, constitute a moiety of the aggregate of the whole. Ibid. 9. Land charged with an annuity will be decreed to be sold to Satisfy the arrears, without noticing a pendente lite purchaser. Philips et als. v. Wil- liams, &c., 5 Grat. 259. 10. It is error to decree the sale of land for the payment of a debt, unless the creditor asking the sale shall shew that the land is legally chargeable in equity for such payment ; and even then until the amount of the debt shall be ascertained. Smith et als^ v. Mint et als., 6 Grat. 40. 11. Where a bill to enjoin a sale of land states facts, 'which, if true, shew the land should not be sold, and is taken for confessed, it is error to de- cree a sale. Ibid. 12. Upon a decree to enforce a vend,or's lien, the decree should give a day to the defendant to redeem" by paying up the amount charged upon it. Kyles V. Taifs adm'r, 6 Grat. 44. 13. As a general rule, the decree in such case should direct a sale on a reasonable credit. Ibid. 14.. Though a decree directing a sale of land does not direct the commis- sioners to convey to the purchaser, yet if they do convey, and they report the fact, and the court confirms the report, the decree of confirmation gives full efi'ect to the deed, and relates back to the time of its date, so as to in- vest the purchaser with the legal title of the original owner of the land. Evans and wife vl Sfurgin, 6 Grat. 107. 15. If the defendant was dead at the time of the decree, and there is no- tice of his death on the record, the decree cannot be impeached on that ac- count in a collateral action. But the error must be shown in some pro- ceeding by the proper parties to set aside the decree for this cause. JbiA. 16. A debtor having transferred bonds and conveyed his distributive in- terest in the personal and real estate of his father, to avoid payment of his debt, upon a bill to subject it, there should be an account of what the father died possessed of, in order to ascertain yhat portion the debtor is en- titled to, and how he has disposed of it. GVeers v. Wright, 6 Grat. 154. 17. The obligors in the bonds should be defendants, and the decree should be against them respectively for the amount due from each ; if the- same is still liable to satisfy the plaintiif's judgment. Ibid. 18. If the transferree of the bonds has received any part thereof, or has made himself liable for any by his improper acts or negligence, and the amount- received from the obligors is not sufficient to satisfy the plaintiff's PRACTICE IN CHANCERY. 315 judgment, there may be a decree against said transferree for the amount for ■which he is chargeable. Ibid. 19. The proceeds of the bonds should be first subjected, then th& interest in the personal estate, and then tlie land. Ibid. 20. It is error to make a joint personal decree against the debtor and his transferree of the bonds, for the amount of the judgment. Ibid. 21. It is error to direct them to surrender the bonds to the sheriff. Ibid. 22. Upon a bill by creditors to enfore a deed of trust, where the trustees refuse to act, it is error simply to appoint trustees in the place of those who refuse to act. But the court should have the trust administered under its own supervision and control. Reynolds v. Eanh of Va. et als., 6 Grat. 174. 23. The prayer of the bill is for the appointment of trustees, and for general relief. The appointment of commissioners to sell and administer the trust under the control of the court, is authorized under either prayer. Ibid. 24. It is not necessary in the decree for the sale of the laud, to direct that the guardian shall give security under the act 1 Rev. Code, ch. 108, p. 409-10. Talley et als. v. Starke's adm'r et als., 6 Grat. 339. 25. A decree for the sale of infants' land, directs it to be sold upon the premises. It is irregular to make the sale elsewhere. The commissioner should report to the court that the sale could not be made there for want of bidders, and obtain instructions for his future action. Ibid. 26. The sale having been irregularly made, as the purchasers could not enforce their contracts if resisted by the parties in the cause, they should act be compelled to execute them. Ibid. 27. Though some of the purchasers are content to confirm the sale, yet as it is set aside as to others, the court will set it aside as to all, if the in- terests of the infants require it. Ibid. 28. A decree directs a sale of land, if a sum certain is not paid by a specified day. The clerk has no authority to issue an execution on this de- cree, without an order of the court or of the judge in vacation. Shackle- ford V. Apperson, 6 Grat. 451. 29. Though circumstances may exist which will warrant the court or the judge in vacation, to allow process of execution on such an interlocutory decree, these circumstances must be shown ; and if they are not shown, it is improper to allow it. lUd. 30. If an execution is issued by the clerk on such a decree, without an- 316 PRACTICE IN CHANCERY. tho^ity^ the court may quash the execution in term, or the judge in yaea- tion may restrain proceedings upon it by an injunction order. Ibid. 31. Under the cireumstances of the case, it was error to dissolve the in- junction before the cause was matured and came on for a final hearing. Gray v. Oversireet et als., 7 Grat. 346. 32. Vendee of land enjoins the collection of the purchase money for a clear defect of title to part of the land. Vendor should be directed to per- fect the title by a day specified by the court ; and if he fails to do so, a commissioner should be directed to ascertain the relative value of the part of the tract to which the title is defective. Clarke v. Rardgrove, &c., 7 Grat. 399. 33. A legatee being dead, a decree for the distribution of the estate of his testator should be in favor of the personal representative of the lega- tee, and not of his distributee. Luster v. Middlecoff et als., 8 Grat. 54. 34. In a suit to marshall assets, the court may, in its discretion, decree a sale of lands in the hands i of the heirs, though some of them are infants. But it is premature to decree a sale before adjudicating the claims of the creditors, and so ascertaining the amount of indebtedness chargeable upon the lands of the decedent. Gralle et als. v. Meem et als., 8 Grat. 496. 35. Though such a decree for a sale of land has been prematurely made, yet if the sale has been made and confirmed, the court will not set it aside on the application of the purchasers, if upon the hearing it appears that the sale is beneficial to the infants. Ibid. 36. The application of the purchasers in such a case to have the sale set aside, should be by petition in the cause. And if they proceed by bill to enjoin the collection of the purchase money and have the sale set aside, the bill should be treated as a petition in the cause, and be brought to a hear- ing with it. Ibid. 37. The court having made a decree for a sale of real estate on the peti- tion of the adult heirs, and with the assent of the creditor, it is erroneous to proceed to sequestrate the rents of the other real estate in the hands of the heirs, for the payment of debts, before deciding upon the claims of the purchasers to have the sale set aside. Ibid. 38. A judgment creditor comes into equity to set aside a deed of trust upon land as usurious. He fails to establish the usury ; but the court hav- ing possession of the case, will decree the sale of the land, and the applica- tion of the proceeds, according to the priorities of the parties. Martin v. Hall et als., 9 Grat. 8. 39. In a suit in which there is an absent defendant, the decree recite* that the cause came on as to him, upon the bill, &o., and order of publica- PRACTICE IN CHANCERY. 317 tion duly executed. This is conclusive that the ovder was duly made, pub- lished and posted. Craig v. Sebrell, 9 Grat. 131. 40. The decree referring to the record of another suit as an exhibit in the cause, makes it a part of the record, though it is not referred to in the bill or answer, nor made an exhibit by an entry on the order book. Ihid. 41. It is error to make a joint decree in favor of several persons, where one of them is an infant, though the decree is made with the consent of the next friend of the iitfant. Armstrong's heirs v. Walkiip et als., 9 Grat. 372. 42. If several suits are pending by different creditors, the court will order the proceedings in all but one to be stayed ; and will require the several parties to come in under the decree in that suit, so that only one account of the estate may be taken. Stephenson v. Taverners, 9 Grat. 398. 43. A creditor who, with knowledge that there has been a decree for an account in another suit, brings a separate suit for his own claim, will be compelled to pay costs. Ibid. 44. A decree in one creditor's suit for an account, operates a suspension of all other pending suits of creditors ; and they must come in under the decree. Ibid. 45. Where several creditors' suits are pending, the decree may be made in the cause first ready for a hearing, though it is not 'the first suit brought. Ibid. 46. To what errors in a decree consent extends. Biichanan v. Clarke et als., 10 Grat. 164. 47. In a controversy between parties claiming under a judgment lien, and others claiming un3er a deed of trust, it being uncertain what part of the lands are embraced in the deed of trust, it is error to decree a sale of land until the priorities of the parties are adjusted, and it is ascertained what par,t of the lands are embraced in the deed. Ibid. 48. The judgment having priority, the land not included in the deed of trust should be first sold, and applied to the judgment, and if insufficient to discharge it, then the land included in the deed of trust should be sold, and so much of the proceeds thereof as with the proceeds of the land not conveyed, amount to a moiety of the proceeds of the lands, should be ap- plied to the judgment. Ibid. 49. In a ^ill by purchaser of land for a rescission of the "contract for failure by vendor to convey the land, there being a latent ambiguity in the contract of sale, which can only be cleared up by a survey, it is error to decree a rescission of the contract until a survey is made, and it is thus 318 PRACTICE IN CHANCERY. ascertained whether the vendor can comply with his contract. Purcell'-^. UcCleary et als., 10 Grat. 246. 50. In the proceeding undei- the statute 1 I^ev. Code, 1819, ch. 96, J 20, Sup. R. C. ch. 149, 5 2, the order or decree of the court is conclusivB upon the infant ;' and he has no day in court to show cause against it upon his coming of age. Parker et als. v. McCoy et als., 10 Grat. 594. 51. Though the final decree gives the infant a day jn court, this will not entitle him, as against a bona fide purchaser of the land, under the de- cree of the court, to disturb the sale. Ibid. 52. Bill by a joint purchaser of land for partition, claiming the larger portion of the land; though the plaintiff fails to make out his claim,' yet the court may decree the partition according to the rights of the parties. Jarrett v. Johnson, 11 Grat. 327. " 53. A vendor having but an equitable title, and only selling his interest in lands, without warranty, and authorizing the vendee to proceed to get in the legal title, it is not error to decree a specific execution of the con- tract, at the suit of the vendor, without directing a conv-eyance by him. Bailey v. James, 11 Grat. 468. 54. There is a bill by heirs against one of them in possession claiming title ; and the court directs the plaintiffs to establish their title at law. If there are any equitable grounds to repel the statute of limitations, they should be stated in the bill ; and the court in making the order for the trial of the title at law, should direct that the plaintiffs should have the benefit of this equity on the trial. Caperton et als. v. Gregory et ah. lessee, 11 Grat. 505. RELIEF. 1. Though a bill is filed to stay a sale under a deed of trust on the ground of usury, until the obligee establishes his debt at law, and is framed with that object, disclaiming all call for discovery from the defendant, and all other relief in equity, if the court refuses to grant relief in the mode asked, yet if the facts disclosed show the plaintiff is entitled to relief upon equitable terms, the bill will not be dismissed, but the court will give him the relief to which he is entitled on principles of equity. Bank of Wash- ington V. Arthur et als., 3 Grat. 173. 2. A court of equity will appoint a commissioner to convey a legal title, outstanding in parties before the court, to the party having the equitable title, and entitled to the legal title, Goodwin v. McGluer, 3 jSrat. 291. 3. A court of equity will enjoin a judgment on the ground of mistake of the jury, ascertained by after discovered evidence. But the subject of the action being accounts, the court will not direct a new trial at law, but PRACTICE IN CHANCERY. 319 will refer the accounta to a commissioner, and -will itself give the proper relief. Rust et als. v. Ware, 6 Grat. 50. . 4. A creditor may come into equity to subject land in the hands of the donee of his debtor, though the decree against the debtor has not been re- vived against his administrator, and no execution has ever issued upon it. Burbridge v. Higgins' adm'r, 6 Grat. 119. • 5. The general rule is, that when a party comes into equity for a dis- covery, the court will retain the cause, and give the proper relief founded on the discovery ; unless where the discovery is sought to be used in a pending action at law. Lyons v. Miller, 6 Grat. 427. 6. The obligors in a forfeited forthcoming bond being insolvent, a court of equity having jurisdiction of the subject, will treat the bond as a nul- lity, though it has not been quashed, and proceed to give the proper relief. Jones, &c. V. Myrick's ex'm-s, 8 Grat. 179. 7. Creditors at whose suit the debtor has taten the insolvent debtor'soath, come into equity to set aside a deed for fraud on its face, and because the beneficiary in the deed had committed a fraud on thom in professing to sign it for the benefit of all, and yet claiming the exclusive benefit of it. Though the court think the deed valid, yet being satisfied that the signing creditor signed for all, the court will give all the benefit of the deed, and distribute the fund in the creditor's suit. Phippen v. Burham et als., 8 Grat. 457. 8. In an injunction to a judgment at law against the assignor and as- signee, the plaintiff' not being entitled to enjoin against the assignee, but entitled to have payment against tl^e assignor, is not entitled to a decree against him for payment, but upon the terms of releasing him from his liability as assignor. Drake v. Lyons, 9 Grat. 54. 9. On a bill by a creditor to set aside a voluntary conveyance, it ap- pearing in the progress of the cause, that the grantor had other lands which may be applicable to pay this debt, an enquiry in relation to them . shoald be directed before setting aside the deed. Fones v. Bice et als., 9 Grat. 668. 10. By the act, Code, ch. 124, § 1, p. 526, a court of equity may decide upon the title in suits for partition ; and this, though the suit was com- menced before the act was passed ; and after allowing a reasonable time to the parties for trial, should proceed to decide the question, observing the general iules of practice in courts of equity for the purpose of ascertain- ing facts, either by a jury or otherwise, as may be most proper. Currin et als. V. Spraull et als., 10 Grat. 145. 11. A creditor qualifies as administrator on his debtor's estate, and aftei? exhausting the personal assets in payment of debts is still a creditor. In ^20 PKACTICE IN CHANCERY. a suit by the heirs in a county court the land is sold; and the administrator files a bill in the circuit court to enjoin the payment of the purchase money t6 the heirs, and asks to have it applied to his debt. Held : 1st. He is en- titled tf) have the proceeds of the land applied to pay his debt. 2nd. The, injunction should-only go to restrain the payment of the purchase money to the heirs ; and should not restrain the Collection of it by the county court. ►Srd. Though it would have been more regular for the administra- tor to connect himself, by petition or bill, with the proceedingB in the county coui't, in which the fund had been realized, yet there is no serious objection to the mode adopted by him. The county court, instead of di- recting the money to be paid to the heirs, may direct it to be paid to such person as the circuit court may appoint to receive it : or one of the suits may be removed to the court in which the other is pending. Williams V. Williams et ah., 11 Grat. 95. IN APPELLATE COURT. 1. ^The appellate court will reverse a decree and send the case back, with leave to plaintiff to amend his bill and make new parties, when he has shewn himself entitled to relief on the merits. Jameson's adm'r v. De- shields, 3 Grat. 4. 2. To prevent surprise upon the plaintiff, the appellate court, while it reverses a decree rendered in favour qf the plaintiff, will send the cause back, to give him an opportunity to make out his case. Piper v. Douglass' ex'm\, 3 Grat. 371. 3. In a suit by an administrator de bonis nan against the administrator of the first administrator, for a settlement of the first administrator's ac- count, it is irregular to decree payment to the administrator de bonis noti ; but the distributees being parties and not objecting, the decree will pro- tect the defendant, and therefore the error is no ground of reversal of the decree in the appellate court. T. Morris' adm'r t. S. Morns' adm'r et aU., 4 Grat. 293. 4. A commissioneir's report purporting to be made in obedience to an or- der of the court, and the court having made the report the basis of its de- cree, and there not appearing to have been any question of the commis- sioner's authority in the the court below, the appellate court must presume that it was made by proper authority, though no order of account is in the record. Wills' adm'r v. Dunn's adm'r, 5 Grat. 384. 5. Where there is a sale of the defendant's land, in a suit by a plaintiff claiming to be a corporation, which is not proved to have been organized, that fact being in issue, under a decree in the cause, and there being a final decree directing the purchaser to pay the money to the plaintiff, the defendant appeals. The court of appeals will reverse so much of the de- cree as directs the purchase money to be paid to the plaintiff, and remand the cause with directions to have the purchase money collected and paid to the defendan)t below, and then dismiss the bill at the costs of the plaintiff. Boviyer's adm'r et als. v. The Giles, Fayette c& Kan'ha Turnpike Co., 9 Grat. 109. OTHER MATTBRS. 321 OTHER MATTERS. 1. Where there are conflicting claimants of a trust fund, who are prose- cuting separate suits in the same court to subject it, the appointment of a receiver, in one of the suits, will enure to the benefit of the plaintiff in the other suit, upon the establishment of his superior right to the fund. Bever- ley V. Brooke et als., 4 Grat. 187. Same v. Scott et als. Id. 2. The parties in both suits being substantially the same, the successful plaintiff may hare an order, in«his own suit for the settlement of the re- ceivers accounts and a decree against him for the amount found to be in bis hands. Ibid. 3. What delays in a chancery cause will not amount to an abandonment of the cause or deprive the party of his right to revive and prosecute it. Chinn et als. v. Murray et als., 4 Grat. 348. 4. The value of Itad for which an agent is held to account to his princi- pal may be ascertained by a jury or a commissioner, as the parties may elect, or if they do not elect, as the court may direct. Wdl/ord et als, v. Ohan- cdlor, 5 Gtrat. 39. 5. Bill by a party having a life estate. in slaves to enjoin removal of the slaves from the State, by party in possession claiming them. The plain- tiff dies. The remainderman may then file his bill in the same court, for the same purpose. Robinson's ex'ors v. Bay, 5 Grat. 56. 6. A cause is r«ady for a decision, as to the substantial parties at a regu- lar term of the court. At a following intermediate term, the plaintiff amends his bill to make a formal party, who comes in and answers at the same term and consents that the cause may be then heard. The court may hear the cause at the intermediate term, though it is objected to by a sub- stantial party, as to whom it was ready at the preceding regular term. im- 7. Money paid under an execution on a decree which is afterwards re- versed and the bill dismissed, may be recovered back by motion to the court on notice. Flemmings v. Biddick's es^ors,^ Grat> 272. 8. Upon a motion to dissolve an injunction before answer, all the allega- tions of the bill must be taken as true. Peatross v. McLaughlin, 6 Grat. 64. McGlellany.Kinnaird,ld.3&2 9. In a suit for the sale of infants' lands a guardian ad litem may be ap- pointed at rules. , TaUeyet als. v. Stctr/c's adm'x et als., 6 Grat. 339. 10. , The court will recommit an account to a commissioner, wi,th direc- tions to inquire what items of it originated in a partnership for gambling, though the pleadings state nothing about such a partnership. Watson v. FleleAer 7 Gr&t. I. Fletcher y. Watson, id. V 322 OTHER MATTERS. 11. When a court of equity will control and direct an administrator, in the administration of an estate, who has come into equity to set up his claims against it. Ihid. 12. Pending a bill for an injunction to a judgment and for the rescission of a contract for the purchase of land, on the ground of an incumbrance and defect of title, the vendor removes the incumbrance and procures the title. The injunction is properly dissolved, but without damages and with costs to the plaintiff. Young's adm'r and Bowyer v. M' Clung et ah., 9 Grat. 336. * 13. The disregard by the circuit court of a rule adopted by itself for the regulation of the practice therein, is not a ground of appeal. Hudson t. Kline, 9 Grat. 379. 14. In a suit by distributees against an administrator, the accounts hav- ing been referred, a report is returned before the defendant's evidence is filed. He excepts to the report, and files an affidavit, showing a sufficient excuse, for not sooner taking his evidence, and asks for a recommittal of the report. Under the circumstances, though the testimony may sustain the defendant as to the subject of controversy, it would not be proper to dismiss the bill. But the plaintiff should have an opportunity to disprove the testimony, and is also entitled to an account of administration. The report should be recommitted. Thomas v. Dawson and wife, 9 Grat, 531. ,15. Neither the bill, nor the answer referring to the wife of the intestate, and there being no proof that she is alive, the appellate court vrill pre- sume she is dead. Ihid. 16. A commissioner's report made in a cause had been returned for more than six years and no exception taken to it until the opinion was pro- nounced, and then it was excepted to for want of notice. The exception was properly overruled. Miller v. Holcombe's ex'or et als., 9 Grat. 665. 17. "When a court will not presume a conveyance of property. Roberts V. King, 10 Grat. 184. 18. When questions are raised by the pleadings and proofs, an excep- tion to a commissioner's report is unnecessary to raise them for adjudica- tion. French v. Townes et als., 10 Grat. 513. 19. Under the act 1 R. C, 1819, ch. 96, § 20, Sup. to R. C. ch. 149, | 2, it is not necessary to summon the infant owners in a proceeding to sell their land ; but the court may appoint a guardian ad litem to defend them. Par- ker et als. v. M' Coy et als., 10 Grat. 594. 20. An objection to the jurisdiction of the court in the case of an in- PRACTICE IN CRIMINAL CASES. 323 junction to an execution, may be taken at the hearing of the cause. 'Beck- ley V. Palmer et als., XI Grat. 625. See Absent Dependants, Commissioners, Co-defendants, Injunctions, Parties, and Equitable Jurisdiction and Relief. PRACTICE IN CRIMINAL CASES. 1. Neither the Commonwealth nor the accused have the right to demur to the evidence in a criminal psosecution, except with the consent of the other party. Doss' case, 1 Grat. 557, ■2. The court refusing to compel the attorney for the commonwealth to ^Oin in a demurrer to evidence, tendered by the defendant, is not re- quired, ex officio, to direct the jury to find a special verdict. Ibid. 3. Though on a criminal trial, the accused ' offers no evidence, the attor- ney for the commonwealth is entitled to open and conclude the argument before the jury. Ibid. 4. A jury having convicted the prisoner and fixed the term of his im- prisonment at a shorter period than the law allows.: if the error, is found out before the jury are discharged, they should be sent back with proper instructions, to reconsider the verdifct. If they persist in the finding or are discharged before the error is discovered, the court should direct a venire de now. Nemo's case, 2 Grat. 558. 5. Upon an indictment for felony, the prisoner pleads in abatement that one of the grand jurors, who found the indictment against him, was at the time a surveyor of a highway, and the attorney for the commonwealth takes issue upon the plea. It should be tried by a jury. Day's case, 2 Grat. 562. 6.' When there is a variance between the presentment and informa- tion, it may be availed of, either as cause against filing the information, or by motion to quash it. Jones' case, 2 Grat, 555. 7. On a trial for felony, the court has no authority to discharge the jury, -without the consent of the prisoner, merely because the court is of opinion that the jury will 'not be able to agree. Williams' case, 2 Grat 567 . "8. The practice of finally adjourning the court, without noticing the jury, whereby it is discharged by operation of law or of discharging them, simul- taneously with the final adjournment of the court, approved. Ibid. 9. The court, before admitting dying declarations, should ascertain -whether the deceased expected to die, before the declarations were made. Hill's case, 2 Grat. 594. 324 PRACTICE IN CRIMINAL CASES. 10. Where several persons are proceeded against jointly for a felony, be- fore the examining court, and are sent on for trial to the superior court, the clerk of the county court should issue a separate venire facias for summon- ing a venire for the trial of each of them separately. Mc Whiri's case, 3 Grat. 594. 11. If in such a case the clerk of the county court has issued but one venire facias, and the prisoner elect to be tried separately in the superior court, it is proper for the court to quash the .panel summoned under the venire facias issued by the clerk of the county court, and to direct a sepa- rate venire facias for summoning a venire for the trial of eaeh of them sep- arately, at the same term of the court. ^Ibid. i 12. A prisoner being sentenced by the court before which he ■was tried, to confinement in the penitentiary for a less time than is authorized by law, for the offence of which he was convicted, the circuit court of Henrico, and the city of Sichmond may, upon the proper proceedings had before that court, correct the error, and sentence him for the shortest period fixed by the statute for his offence. Loffan's case, 5 Grat. 692. 13. Though at the time the felony charged was committed, and at the time of the arrest of the prisoner, the law in relation to called courts was unrepealed, yet if before the commitment the act abolishing called courts had gone into effect, it was proper, for the commiting justice to send the prisoner to be tried according to the new law. Swing's case, 5 Grat. TOl. 14. In arraigning the prisoner on his trial before the circuit court, it was proper to charge the jury under the law which was in force when the of- fence was committed. Ihid. 15. Upon a question addressed to the court, the judge is not bound to hear an argument from the prisoner's counsel, if his opinion is already formed. Howell's case, 5 Grat., 665. 16. In a criminal trial, the prosecutor may employ counsel to aid the attorney for the commonwealth, and such counsel will be permitted to aid in the prosecution, Hopper, Stiers & Lemmon's case, 6 Grat. 684. 17. Upon indictment for perjury where it is a question whether the oath taken is legal, perjury, the court should not entertain a motion to quash the indictment, but should put the defendant to his demurrer. Lit- ton! s case, 6 Grat. 691. 18. Motions to quash indictments or informations are not to be encour- aged or extended. Lodge's case, 6 Grat. 699. 19. On an information for perjury, the attorney for the commonwealth will be allowed to amend the information in accordance with the present- ment on which it was founded, after the appearance of the defendant and a motion by him to quash it. IMd. PRESENTMENTS— PRINCIPAL AND AGENT. 325 20. A prisoner being sent on for further trial from a hustings court, the tmire facias is properly executed by the sergeant of the- corporation. Smith's case, 6 Gfat. 696; 21. The act, Code 1849, oh. 208, ? 34, p. 778, authorizes a prisoner, who is tried on an indictment containing several counts, some of which are faulty, to move the court to instruct the jury to disregard the faulty counts. A motion to exclude evidence, which could only be applicable to the faulty count, is in effect a motion to disregard that cpunt. Band's case, 9 Grat. 738. See Ckiuinal Jttrisfbttdence akd Proceedings. PRESENTMENTS. See Indictments, &c. PRINCIPAL AND AGENT. 1. An agent authoriised to purchase land for his principal, purchases in his own name, and takes a conveyance to himself. He is bound to convey the land to his principal, upon his complying with the terms of his con- tract of purchase, in the same plight and condition in which the same was conveyed.to him. Wellford ei als. v. Chancellor, 5 Grat, 39. 2. If the agent has disposed of a part of the land purchased, so that the principal cannot obtain that part, the agent will be held to account for the same, at its true value, at the time when it should have been conveyed to his principal, to be ascertained by a jury or a commissioner, as the parties may elect, or as the court, on their failure to do so, may direct. Ihid. B. It is qompetent for a principal and agent to compromise a controversy between tjiem ;»and su6h compromise, if fairly made with a full' know- ledge of all the facts, and where no undue influence is exerted, or improper advantage of the situation of the principal is taken, is binding on the principal, though he may by such compromise yield a portion of his rights. But if the agent misrepresents a material fact, the compromise will be va- cated ; and this espeoiajly where advantage is taken of the ciroumst^ppes of the priucipaJ. Ibid, 4. All agei^t wljp transfers a negotiable note for value, though not a gua'rantor of the solvency of the parties to the note, is a guarantor of the genuinenicss of the" instrument, unless he discloses not only his a,gency, but the name of the prineipal for whom he is acting. Lyons v. Miller, 6 Grat. 427. 326 PRINCIPAL AND AGENT. 5. The president of a corporation is not ex officio the agent of the corpo- ration to sell property, ■which it may direct to be sold; and unless appoint- ed to sell, his representations are not binding on the corporation. Crump V. United States Mining Co., 7 Grat,. 352. 6. An agent to sell property, is furnished by his principals with written proposals containing the terms of sale and a description of the property. If the agent makes other representations of the value and condition of the property which are false, and thus induces persons to buy, the principals, though they neither authorized or were informed of these lepresentatidns, are bound by them and the contracts are void. Ihid. 7. In an action of debt in which the defence is payment and set off, the transactions having been principally with a brother of plaintiff's intestate, after the introduction of evidence tending to prove the agency, the record of a suit instituted by the defendant's intestate against the plaintiff's intestate, was held competent evidence to prove the agency of the brother ; and a paper signed by the brother, showing that he had set- tled the price of certain tobacco, for the plaintiff's intestate with the de- fendant's intestate, was held competent evidence for the same purpose. Perkins' adm'r v. Hawhins' adm'r, 9 Grat. 649. 8. A power of attorney to draw, endorse and accept bills, and to make and endorse notes negotiable at a particular bank, in the name of the prin- cipal, in the absence of anything to show a different intention, must be construed as giving authority to act only in the separate, individual busi- ness of the principal. And an endorsement of a bill by the agent in the name of his principal, for the benefit of the agent, is beyond his authority, and does not bind the principal. Stainback v. The Bank of Va., 11 Grat. 269. Stainback v. Bead & Go., Id. 281. 9. A party dealing with the agent with knowledge, or means of know- ledge, that under such a power he is endorsing the name of his principal for his own benefit, is not entitled to recover from the principal. Ibid. 10. The facts that the attorney, who was the drawee of a bill upon which he endorses the name of his principal, held the bill at the time it was dis- counted by the holder, and the proceeds were passed to his credit, are of themselves full proof that the attorney was acting for his own benefit, and not that of his principal. IMd. 11. A power of attorney to draw, endorse and accept bills, and to make and endorse notes negotiable at a particular bank, in the name of the prin-' pal, does not authorize the attorney to draw a bill in the joint names of himself and his principal. Stainback v. Read 3 Grat. 356. 3. In such case the malcer of the note is not discharged by the omission of the holder to enforce the collection thereof until the payee for whose accommodation the note was made, became insolvent; though the holder had looked to the payee fjr payment. Ibid. 4. A note is given for the amount of an account due, and the note is discounted for the payee ; his remedy on the account is suspended until the note is dishonored. M' Cluney <& Co. t. Jackion, 6 Grat. 96. 5. The maker of a negotiable note proving fraud in the procurement of the note by the payee, the holder to enable himself to recover, must prove he is a bonajide holder for value. Vathir v. Zane, . 6 Grat. 246. 6. The transferrer for value of a negotiable note, though not a guarantor of the. solvency of the partres to the note, ia a guarantor for the genuine- ness of the instrument. Lyons v. Miller, 6 Grat. 427. 7. Nor is it material whether the person making the transfer receives the consideration to his own use, or for the another; unless he His. acting as agent, and discloses not only his agency, hut the name of the principal for whoni he is acting. Ibid. 8. A paper signed in blank, and endorsed in blank, may be filled up either as a common promissory note or a negotiable note ; and the person who endorsed it in blank will be liable on his endorsement tq a holder for value. Orrick v. Colston, 7 Grat. 189. 9. In such a case if the paper is filled up as a common promissory note a third person who advances the money for it to the makers, he may treat the endorser as an original surety or as a guarantor of the note. Ibid. 10. If after the note is filled up and delivered to the payee, the holder fills up the blank endorsement with a guarantee, he may afterwards erase it and proceed against the endorser as an original surety. Ibid. 11. The maker of a note becomes the bail of the holder, and they entfer into a covenant by which the maker is to hold the note until his liability as hail ceases, and then to return it. The note is not merged in the covenant. Bowled ex'or v. Elmore's adm'x 7 Grat. 385. - 12. In an action on a bill of exchange by the holder against an endorser, where it is proper to send the notice of protest by mail, and it has not ar- rived at as early a day as in the regular course of the mail, it might have come, if started at the proper time, the o»«« is upon the plaintiff to prove 330 PROMISSORY NOTES AND BILLS OP EXCHANGE. that it was put into the mail at the proper time. Friend v. Wilkinson & Eitnt, 9 Grat. 31. 13. A bill of exchange having fallen due and been protested before the ' act allowing three per cent damages and interest upon the cost of protest went into operation, such damages and interest are not recoverable thereon. Jbid. 14. A promissory note is signed R. H. E., [for S. H. B.,] the latter being in brackets. Upon the face of the paper it is the note of R. H. E. Uarly , V. Wilkinson & Hunt, 9 Gratj 68. 15. Parol' evidence is admissible to prove the note was intended to be the note of R. H. E. lUd. 16., If the parol evidence was improper, yet as the court had instructed the jury that the note was on its face, the note of R. H. B., the admission of the evidence could not be injurious to R. H. B., and it is therefore no ground for reversing the judgment. Ibid. 17. A note for a sum certain, payable to order, and negotiable and payer ble at a bank out of the State of Virginia, is a note negotiable at a bank in Virginia, and is put upon the same footing as bills of exchange, with the like remedy for the recovery thereof, against the maker and endorsers joint- ly, and the like effect; except as to damages. Hays v. Northwestern Bank of Va., 9 Grat. 127. 18. In such a case demand and notice of protest for non-payment is not necessary to subject the maker of the note. Ibid. 19. In. debt on' a note signed with a partnership name, the declaration charges that the defendants by their partnership name subscribed the note; and there was no affidavit by the defendants or any one of them, putting the execution of the note in issue. They are precluded from showing that the partnership had been dissolved before the note was made, and that the per- son making it had no authority to execute it for the partners. Phaup, &c, V. Stratum, 9 Grat., 615. 20. In an action on a note in which it is averred that the endorser endor^- sed it by signing his name, &o., without an affidavit filed with his plea, he cannot question the genuineness of his signature, or show that the note had been altered after he endorsed it. Archer y. Ward, 9 Grat., 622. 21. The notarial protest of a foreign bill of exchange states that the no- tary took the bill to the counting house of the drawee, and there exhibited it to a clerk of the drawee and demanded acceptance thereof, and that the said clerk replied that the same could not be accepted. The protest is suf- ficient to bind the endorser. Stainback v. The Bank of Va., 11 Grat,, 260. 22. Parol evidence that the clerk was authorized to refuse acceptance of a bill, is admissible in an action by the holder against the endorser. Ibid. PROMISSORY NOTES AND BILLS OF EXCHANGE. 331 23. A note made in a particular country is to be deemed a note governed by the laws of that country, whether it is payable there, or it is payable generally, without naming any particular place. Wilson v. Lazier et als. lIGrat., 477. 24. The possession of a negotiable instrument is prima facie evidence that the holder took it for value, and that he came to it honestly. Ibid. 25.- A total failure of the consideration of a negotiable note does not im- pose on the innocent holder the onus of proving that he gave value for it.. Ibid. 26. If the evidence raises a suspicion of fraud in the procurement of the note, then the holder is bound to prove that he gave value for' it. Ibid. 27. There having been a total failure of consideration of a negotiable note, and the payee having endorsed it as a gift to a third person, who en- dorsed it for value : though the maker is compelled to pay it to the holder for value, he is entitled to recover from the payee, and if he is unable to pay it, from the endorser, the amount he received for it : And upon a bill against all the parties he will be relieved. Ibid. 28. A note does not import a debt existing previous to the period of its execution ; but its effect is to give the debt and the note a ootemporaneous origin. Johnston v. Zane's trustees et als, 11 Grat., 552. 29. A bill drawn in Petersburg, Virginia, on a house in London, was protested for non-acceptance, on the 5th of April, 1843. The next Cunard steamer sailed from Liverpool for the United States on the 19th of that month, and notice of the. dishonor of the bill was sent by that steamer. At that time these steamers carried the mail between the two countries under a contract with the British Government ; and it was the usual mode of transmitting letters. There were, however, regular lines of sailing packets between London and Liverpool and the United States, for which' letter bags were made up at the' London post-office, and such packets sailed from London or Liverpool on the 7th, 10th and 17th of April, 1843. But it was probable the steamer of the 19th would arrive before any of them. Held : The notice was sufficient. Stainback v. The Bank of Virginia, 11 Grat., 260. PUBLIC LANDINGS. 1. The viewers report that a public landing at the place viewed would be of very great convenience to the public, as a list of persons, all heads of families, to the number of one hundred and twenty, had been shown to them, all of whom, as well as many others would be benefitted by the pro- posed landing. Held : It was no error in the report that this list of per- sons was not returned with the report. Muire v. Falconer et als. 10. Grat., 12. 332 PUBLIC LANDINGS; 2. Two of the persons on the list were justices of the peace of the coun- ty ; and when the order awarding the writ of ad quod, damnum was madft they were'on the bench, and one of them was on the bench when the landj ing was established. This was no legal objection. Ibid. 3. There is no time fixed by the statute for which notice shall be giTgjj to a party, upon whose land a public landing is sought to he establishei- If, therefore, the notice is served upon him at any time before the end of the return day of the notice, it is sufficient in law, and he must show that it Was insufficient and not reasonable notice. Ibid. 4. The statute does not require the writ of ad quod damnum to be retium- ed to the next court afte;^ it is awarded : And if the order awarding it so directs, the direction is merely directory to the officer, and his failnretO; make the return within tlie time prescribed will not affect the validity of tlie inquest properly taken. Ibid. 5. A jury of inquest upon a writ of ad! quod damnum, to establish a pub- lic landing, is charged according to the act 2 Bev. Code, p. 238, ^. 15, biit is not charged according to the act of January 30th, 1834, Sess. Acts 97. This is not error, the provisions of this last act having no application, to public landings. Ibid. . ■ 6. The application is to establish a landing at a certain place, which is in fact on the lands of two adjoining proprietors ; and the precise loca,lity of the dividing line between them is a matter of controversy, though the line had been previously fixed by the processioners. The land being open and uncultivated, it was proper for the jury in assessing the damages to each, to take the line fixed by the processioners as the true line. Ibid. 7. With. the consent of the party to whom the damages were assessed, the county court directed that the damages so assessed to him, shouldl9« withheld until the dispute about the dividing line should be detenmned; and that the damages should then be paid to the party to whom it appeared the land belonged. This is no error. Ibid. 8. In the absence of evidence clearly showing that the damages assessed are insufficient, the inquest taken on the ground must be deemed conclusive cin the question. Ibid. 9. Upon an application to establish a public landing, if no motion has been made in the county court to quash the report of the viewers, it is too late to object to it in the appellate court. Ibid. 10. In such case the party opposed to the establishment of the landing, having made himself a party in the cause, and taken an appeal, upon which all the proceedings subsequent to the report of the viewers were quashedi and it being proved that after the cause went back, he was served with no- tice, and he having appeared and opposed the establishment of the landing, without objecting to the sufficiency of the notice, he cannot object to it in the appellate court. Ibid. PUBLIC PLACE.— PUBLIC SCHOOLS.— PURCHASERS. 333 PUBLIC PLACE. : :1. What is not a public place, in contemplation of the act to suppress rglming. Vcmdirm's Case, 6 Gnit. 689. 2. A storehouse in a Tillage, late at night, after persons cease to come to the store to purchase goods, and the door is locked, is not a public place, trithin the meaning of the statute against gaming. Feazl^s Case, 8 Grat. 585. PUBLIC SCHOOLS. The first section of the act passed March 5th,> 1846; entitled ',' an act for the establishment of a district public school system,'' only requires two thirds of the legal voters, of a county, who shall rote, to authorize the act to be carried into execution. Literary Fund v. Dalhy, 4 Grat., 528. PURCHASERS. 1. A Court of ^Equity will not interfere to give relief to a purchaser un- d?r a decree of a court having jurisdiction of the subject, or to his sureties for error in the decree, or the proceedings under it, wheii the report of the commissioner has been confirmed. Worsham v. Hardaway's administrator, 5 Grat., 60. 2. Land on which an annuity is charged, having been sold pending a suit, to recover the arrears of the annuity, it will be directed to be sold to satisfy the arrears of the annuity, without noticing the pendente lite pur- chaser. Phillips et als. v. Williams, 5 Grat., 259. RAPE. 1. Though in a prosecution for rape, it is competent to prove the fact of a recent complaint by the female, for the purpose of sustaining her credit, it is not competent to prove any particulars of the description of the person committing the offence, which may have been given by her. Brogy^s case, 10 Grat. 722. 2. If the female, when examined as a witness, declines giving a descrip- tion of the person committing the offence, it is not competent to prove the dtsoription given by her when not upon oath. Ibid. 334 RECEIVER.— BECITALS.— RECOGNIZANCE. RECEIVER- 1. When there are conflicting claimants of a trust fund, who are prose- cuting separate suits in the same court to subject it, the appointment of a receiver in one of the suits, on the motion of the plaintiff in that suit, will enure to the benefit of the plaintiff in the other suit, upon the establish- ment of his superior right to the fund. Beverley v. Broohs et als.,4 Grat. 187. Same v. Scott et als. Id. 2. The parties in both suits being substantially the same, the successful plaintiff may have an order in his own suit for the settlement of the re- ceiver's accounts, alid a decree against him for the amount found to be in his hands. Ibid. 3. The law in relation to the appointment, duties, and responsibilities of ' receivers, investigated. Ibid. BECITALS. 1. Recitals in a marriage settlement shall not controLthe trust plainly expressed in the instrument. Whiting v. 'Biist, 1 Grat. 483. 2. Recitals in a deed are evidence against the granter and all claiming under him, but not against a third person, claiming not under but against the deed. Wiley et als., v. Givens et als., 6 Grat. 277. 3. Recitals in a deed are evidence against parties and privies in blood ; in estate and in law. Ibid. 4. The recitals in a deed of -a commissioner of delinquent lands are not evidence against a party claiming adversely to the deed. Walton v. Ede, 9 Grat. 194. 5. On a, motion by administratrix of high sheriff, against a deputy and his sureties, for failure to pay over money, the judgment against the high sheriff and its recitals are evidence against the deputy and his sureties. Cox et als.,y. Thomas' adm'x, 9 Grat. 323, RECOGNIZANCE. 1. A justice can only take the recognizance of bail, after the examining court has decided that the prisoner is bailable and fixed the amount of bail. Hamlett et als. v. Commonwealth, 3 Grat. 82. Saunders' adm'r v. Common- wealth. Id. 214. 2. The recognizance of bail taken by a justice of a prisoner sent on for trial by the examining court, must show on its face that the examining RECORDS. . .335 court had entered of record that the prisoner was bailable, and had fixed the amount in which the bail should be taken. Ibid. , 3. A county court has authority to require a party to enter into a recog- nizance to keep the peace ; at .least where the proceeding was commenced before the act of 1848, Sess. Acts, ch. 14.- Welling's case, 6 Grat. 670. 4. When a recognizance has a condition to do some act, for the doing ,of which an obligation may be properly taken, and the court or ofScer taking it had authority of law to act in cases of that general description, the recognizance is valid though it does not recite the special circumstances under which it is taken. And in declaring upon such a recognizance, it is not necessary to aver the existence of the partioular.facts which show that the court or officer had authority to take it. Archer v. The Commonwealth, 10 Grat., 627. 5. When by law separate terms of a circuit court are appointed for the trial of civil and criminal causes, a recognizance in a criminal case is pro- perly made returnable to a term for the trial of criminal causes, and a, scire facias thereon is properly made returnable to the term for the trial of civil cases or to the rules, the first being a criminal, and the other a civil pro- ceeding. Ibid. RECORDS. 1. A decree directing a conveyance of land by the marshal, is not of itself competent evidence of the marshal's authority to convey the land embraced in his deed, unless it designates the land directed to be conveyed; but the whole record, or so much as will show the land intended by the de- cree, must be produced with it. Masters v. Yarrier's ex'ors, 5 Grat. 108. 2. A decree of partition being a necessary link in a chain of title, if the decree sufficiently designates the land referred to in it, it is competent evi- .dence without the production of the whole record. Wynn v. Harman's devisees, 5 Grat. 157. 3. Upon a motion to quash a writ and inquisition founded on a judgment at law, which motion is sustained, the writ and inquisition is a part of the record, though no bill of exceptions is taken, and will be so treated by an appellate court. Wallop's adm'r v. Scarburg et als., 5 Grat. 1. 4. The official bond of a committee of a lunatic, given in obedience to the order of the court, and its execution certified on the record, is a part of the record, and may be looked to to ascertain what kind of bond the court required to be executed. Beery v. Barman's Committee, 8 Grat, 48. 5. A record to which neither the demandants nor tenants were parties, is not even prima facie evidence against the tenant, that the grantor in the 336 KEGISTRT OF DEEDS. deed to the demandants was heir at law of the grantee in the patent under which the demandants slaim title. Duncan v. Helms et als., 8 Grat. 68, 6. A record of another suit between the same parties, in which the same causes of action were in controversy, and the finding of the jury was against them, is competent evidfenee. Johnson's ex'x v. Jennings' adm'r, 10 Grat. 1. 7. In ejectment, plaintiff claims under a deed from the commissioner of -delinquent lands ; the record of the proceedings, including the exhibits in which the sale and conveyance of the land was directed, is competent evi- dence, though there be irregularities in the proceedings, apparent on the .£a,ce of the record. Smith et al. v. Chapman, 10 Grat. 445. 8. In detinue for slaves by a trustee in a deed of trust against a defen- dant who claims the slaves by purchase from the same grantor, the defen- dant offers a witness to prove the debt secured by the deed was paid by a sale of slaves to the creditor by the debtor. To this evidence the plaintiff objects, and introduces a record in a chancery cause between the debtor and creditor, in which it is has been decided that the price of these slaves has been by agreement between the debtor and creditor applied in part discharge of another debt. Held : The decree is conclusive, and the defen- dant's evidence is inadmissible. Nichols v. Campbell, 10 Grat. 560. 9. A cause is brought on to he heard upon the bill, answer, exhibits, and awards : qucere : if the depositions and commissioner's report are a part of the record, and evidence as such in a case in which the record is evidence ? Nelson's adm'r v. Oornwell, 11 Grat. 724. REGISTRY OF DEEDS. 1. The registry of a deed which conveys land by general description, such as " all my estate real and personal " is not notice in law to a sub- sequent purchaser of the grantor, of the existence of the deed. Mundy v. Vawteret als., 8 Grat. 518. 2. A power of attorney for the conveyance of lands, falls within both the letter and spirit of the act regulating conveyances, 1 Rev. Code, Ch. 99, ^7, p. 363, authorizing deeds to be acknowledged before any two justi- ces of the peace, for any county or corporation of the U. S., and the certafi- cate of the justices is sufScient for the admission of the power of attorney to record, with the conveyance, although it does not certify the instrument to any •ourt or clerk's office, for the purpose of being recorded. Shanks et als. V. Lancaster, 5 Grat. 110. 3. A clerk of a county court endorses on a deed that it was on that day exhibited in his office, acknowledged by the parties thereto and admitted to record. In fact that the deed was acknowledged, and the certificate en- REGISTRY OP DEEDS. ,33T dorsed' thereon, out of the office, and then was taken by the cleri to the office, and deposited there. The deed was valid, as a recorded deed from the date of the certificate. Oaiyer et ah v. McDowell, 5 Grat. 2l2. 4. A deed is properly admitted to record, upon a certificate of aoknqwl- edgement, describing the officers taking it, as aldermen of the city of New York. Willis v. Cole et als., 6 Grat. 645. 5. A deed executed in 1799 which shews upon its face, that the parties to it'resided out of Virginia, was properly admitted to record, upon the cer- tificate of acknowledgement, by the Mayor of a city, in another State de- scribing himself as such, and purporting to be under the seal of the city. Coles v. Miller et als., 8 Grat. 6. 6. The certificate is sufficient evidence that the grantor resided, for the time, in said city, though the deed described him as being a citizen of another State. I hid. ' 7. It seems that residence, however temporary, is sufficient to authorize the acknowledgement of a deed there, by a non-resident of Virginia, under the act of 1792, chap. 90, J 5. Ibid. 8. Under the act of October 1785, regulating conveyances, a deed is made by a citizen of Virginia, and acknowledged, in New York, before the Mayor. His certificate thereof is a sufficient authentication to authorize its admission to record. Master's lessee v. King, 9 Grat. 115. 9. Though the certificate of acknowledgement bears date, a short time before the act of 1785 went into operation, yet having been intended to be made under that act, the authentication is sufficient to authorize its admis- sion to record. Ibid. , 10. Though not admitted to record within the time_speoified by the act of 1785, it was properly admitted in 1833, under the act of 1819. Ibid. 11. The certificate of the Mayor of New York being full and particular, and being made in his official capacity and under his official seal, should be presumed to be made in the manner such acts were usually authenticated by him. Ibid. ^ .. 12. A deed executed in Boston, in December 1798, by parties living there, conveying land in Virginia, is properly admitted to record up m a certificate of the proof of, its execution by the subscribing witnesses, be- fore the court of Suffolk County, signed by a party, describing himself as clerk of the, court ; though no seal is attached to the certificate. Smith et als V. Chapman, 10 Grat. 445. 13. A husband is not a competent subscribing witness to a deed executed during the marriage, by which real estate is conveyed to his wife, either 338 REMAINDER.— REMOVAL OP CAUSES.— &c., &c. for the purpose of proving the due execution of the deed, when called in question, or for the purpose of having it admitted to record. Johnston and wife V. Slater ei al, II Grat. 321. 14. A deed admitted' to record upon proof by subscribing witnesses, one of vfhom was the husband of the grantee, is null and void as to creditors, not having been duly recorded. Ibid. See Deeds. REMAINDER. 1. The trusts declared in a marriage settlement were, for the husband for the joint lives of husband and wife. If she survived, the whole proper ty to be absolutely vested in her, but if he survived, to him for life iand at his death to the children of the marriage, in equal proportions ; and if no child of the marriage or sueh child should die before age, then to the brothers and sisters of the wife, to be equally divided among them- Held 1. The wife has no power to dispose of the property during cover- ture. 2. The remainder vested in the children on their attaining full age. 3. A child dying within age, without issue, the estate vested in the survi- vors. Whiting v. Rust, 1 Grat. 4S3. 2. Th^ statute of limitations does not begin to run against the owners of a remainder in slaves, in favor of the purchaser of the life-estate, until after ^ the death of the life-tenant. Ball et als v. Johnsons' ex'or et als-, 8 Grat. 281. REMOVAL OF CAUSES. 1. If a case of unlawful detainer has been pending in the county court, for more than twelve months, without a final decision, it may be removed on motion to the circuit court. Harrison v. Middleton, 11 Grat. 427. Kincheloe v. Tracewells, id. 587. 2. All civil causes, of which the circuit court has either original or ap- pellate jurisdiction, may be removed from the county to the circuit court, upon motion, after they have been pending in the county court for more than one year. Ibid. RENTS AND PROFITS. 1. Heirs and devisees are entitled to the rents and profits of the real estate, descended or devised, until a decree of the court subjecting them to the payment of debts. Hobson v. Yancey et als., 2 Grat. 73. RENTS AND PROFITS. 339 ' 2. A judgment lien does not give title to rents and profits, until after' a decree. Leake v. Ferguson, 2 Grat. 419. 3. When no demand has been made by the vendor, previous to his filing a bill to set aside the sale, and the court sets it aside on the ground of mu- tual mistake, the court will only decree rents and profits from the filing of the bill, and will decree interest on the purchase money for the same time. Irick and wife v. Fulton's ex'ors, 3 Grat. 193. 4. When the real estate of a testator is necessary for the payment of his debts, an account of the rents and profits from his death may be directed by an interlocutory decree, for the purpose of ascertaining what rents and profits had accrued from that period, and by whom they had been received, in orfler to enable the court to decide by its future decree what persons, if any, are accountable therefor. McGandlish adm'r, &c., v. Edloe et als., 3 Grat. 330. 5. A trustee accountable for rents received by him, is chargeable with interest thereon. Mundy v. Tawter et als., -3 Grat. 618. 6. A. partition of land is made under a decree, which is acquiesced in for many years, but is afterwards set aside. . In the accountfor rents and profits, the estimate should be upon the value at the time of the partition. Chinn et als. V. Murray et als., 4 Grat. 348. ' 7. Trustees, by authority of an act of assembly, sell and convey lands, reserving a ground rent to be paid to the proprietor of the land when he shall be ascertained. The statute of limitations does not bar the recovery of the rent. Mulliday v. Machir's adm'r., 4 Grat. 1. 8. In a suit by the proprietor to recover ground rents, the defendant in his answer, admits the rents have not been paid. Lapse of time is no bar to the recovery. Ibid. 9. Interest will not be allowed upon ground rents which the proprietor has unreasonably delayed to sue for. Ibid. 10. Trustees under an act of assembly, sell and convey land reserving a ground rent to the proprietor, when he shall be ascertained. The deed not having reserved any right of re-entry or distress, and containing no cove- nant by the purchaser to pay the rents, and the proprietor not being a party to the deed, the party claiming under the proprietor is entitled from the difficulty of proceeding at law to come into equity to recover the rents. Ibid. ' 11. A tenement under a lease is sold, the vendor reserving the rent. If in consequence of the absolute conveyance, the right of the vendor to enforce the payment of the rent is lost, the purchaser is personally liable if the rent is collected or released by him. Kyles v. Tate's adm'r., ^ Grat. 44. 340 RENTS AND PROI'ITS. ' 12. Salt works are rented for two-thirds of the salt made, and the leasees covenant to make at least sixty thousand bushels of salt in each year. The landlord is not entitled to distrain or sue for forty thousand bushels, but only two-thirds of the quantity actually made. Presions v. McCall, 7 Grat. 121. 13. For the failure to make sixty thousand bushels in one year, the proper action would be for the damages occasioned thereby, and to the ex- tent of such failure ; and not for a specific rent of forty thousand bushels of salt. Ihid. 14. During the first year, the lessees, with the assent of the lessors, assign their lease; the assignees covenant to assume and pay all the con- tracts, debts, and liabilities of the lessees relating to the salt-making busi- ness. On the next day the assignees take a new lease, paying a money rent. The taking a new lease operated as a surrender of the first, and ex- tinguished the liabilities of the assignees prospectively; and as assignees they vrere not liable for prior breaches of contract by the assignors. Hid. 15. The assignees were liable by their contract to the lessor for arrears of salt rent, whether the salt was then on hand or had been sold. Ibid. 16. The surrender of the first lease before the end of the year, prevente,d a breach of the covenant to manufacture sixty thousand bushels of salt a year. Ibid. 17. Though the lessors were not parties to the assignment of the lease, yet as it was made with their assent, which by the terms of the lease, was necessary, they have the right to enforce the contract of the assignees,, to pay the debts of the lessees, so far as the lessors are concerned. Ibid. 18. A mortgagee is in possession and the mortgagor enjoins a sale of the land advertised to be made under a prior deed of trust, upon the ground that the debt is usurious; The court holds that the debt is partly, usurious and partly bona fide, and that the deed is a valid security for the part that is bona fide; and directs a sale of the property for the payment of the part that is bona fide- The proceeds of sale, not being enough to pay this debt and what was due on a prior deed, the mortgagee is not to account to the prior creditor for the rents and profits of the property, there having been no application for a receiver, or that he should be held to account as such. Bank of Washington v. Hupp, 10 Grat. 23. 19. Though by the terms of the mortgage, the morgngee had a discretion to apply the profits to pay his own debt or those for which he was surety or to the debt of the party secured by the prior deed of trust, he wa's not bound to apply any of the profits to this prior debt. And this especially as the holders of that debt claimed not under the mortgage but against it. Ibid, 20. A landlord having distrained for rent in arrear reserved in salt, has REPLEVIN.— P.ES GESTA. 341 the affidavit and warrant of distress returned to the circuit court ; and the defendant appears there, and a jury is empanneled to ascertain the value of the rent in arrear, and not being able to agree are discharged, and the land- lord dismisses the case in that court. He iaay then apply to the county court to have the value of the rent ascertained, basing his application on the same affidavit and vfarrant of distress. Brooks T. Wilcox, 11 Grat. 411. 21. If the officer levying the distress thinks that he has not taken suffi- cient effects, he may make a second levy. Ibid. 22. The defendant having elected to have the value of the rent reserved ascertained by a jury, it is not error to swear them to ascertain the rent said to be due. Ibid, 23. The only object of the proceeding before a jury in the case of a dis- tress for rent, is to ascertain the value in money of the rent in arrear. It is not necessary for the landlord to prove to the jury that a warrant has been levied for rent reserved in something other than money, and that it is due and in arrear. Ibid. 24. The jury having ascertained the value of the rent in arrear, the court made an order directing the officer to sell the property distrained as directed by law ; and after satisfying the rent due, with interest and costs, to pay over the balance to the tenant. This is substantially in accordance with the statute. Ibid. 25. Under the act of March 2nd, 1827, the landlord was entitled to in- terest on rent in arrear from the time it was due. Ibid. REPLEVIN. Defence, in the nature of set-off, authorized by the Act Sup. Rev. Code, ch. 62, may be set up in the action of replevin. Murray, Caldwell & Co. T. Finnington, 3 Grat. 91. RES GESTA. Qucere : Whether upon a trial for murder, the declarations of the de- ceased, made immediately after the wound was inflicted and before he had time to fabricate a story and when the lis mota did not exist, may not be given in evidence as part of the res gestae. Sill's case, 2 Grat. 594, 342 KETAINER.— REVIVOR. RETAINER. 1. An administrator is not entitled to retain for his debt due by simple contract, as against bonds with collateral conditions, creating contingent liabilities, which may never occur, though such retainer is made before the breach pf such condition, and without notice of the existence of such bond. Oookus V. Peyton's ex'or., I Grat. 431. 2. A Eurviving partner, administrator of his deceased partner is entitled to retain out of the separate estate in his hands, against separate debts of no higher dignity, for all debts for which he is entitled to share the sepa- rate estate with the separate creditors. T. Morris' adm'r v. S. Morns' adm'r et ah., 4 Grat. 293. REVIVOR. 1. One of several appellants dies after the appeal is perfected in the appellate court ; either party may have the appeal revived, in the name of the representative of the deceased appellant ; and the party wishing to have it done, must do it. Baine et als v. Bank of Va., 4 Grat. 150. 2. Where the defendant in a proceeding of unlawful detainer, dies pend- ing an appeal by the plaintiff below, the cause cannot be revived. Chap- man V. Dunlap, 4 Grat. 86. 3. What delays in a chancery cause, will not amount to an abandonment of the cause, or deprive the party of his right to waive and prosecute it. Ohinn et als v. Murray et als., 4 Grat. 348. 4. A creditor may come into equity, to subject land in the hands of the donee of his debtor, though the decree against the debtor has not been re- vived against his administrator and no execution has ever issued upon it. Burbridge v. Biggins' adm'r., 6 Grat. 119. 5. Where a party to a cause pending in the supreme court of appeals, dies pending the appeal, it is not necessai-y to revive the cause in the name of his representative ; but the case may be revived when it goes back to the court below. Beid's adm'r v. Strider's adm'r., 7 Grat. 76. 6. The act, 1 Rev. Code, ch. 128, ? 65, p. 505, in relation to a scire facias to revive a judgment, is not repealed by the act of March 20th, 1831, Sup. Rev. Code, ch. 197, J 2, on the same subject. Williamson v. Crawford, 7 Grat. 202. 7. Upon a scire facias to revive a judgment, neither a declaration nor a rule to plead is necessary, and if the writ is made returnable to the rules, and the defendant makes default, there should be an award of execution, which, if not sot aside at the next term, becomes a final judgment as of the last day of the term. Ibid. REVOLUTIONARY CLAIMS— ROADS. 343 8. In a proceeding to recover damages against the Upper Appomattox Company, under the 9th section of the act of 23d of February, 1835, Sess. Acts, p. 82, the jury having returned their report ascertaining the damages, and the company having excepted to it and obtained a continuance, the plaintiff dies. The proceeding may be revived by the administrator, and not by the heirs. Upper Appomattox Company/ v. Hardinge, 11 Grat. 1. 9. The pendency of an injunction to a judgment at law will not prevent the revival of the judgment upon the death of either plaintiff or defendant; and the injunction operates upon the revived judgment to restrain the issue of an execution thereon. JRicJiardson's adm'r v. Prince George Jus- tices; li Grsit. 190. Poindexter's adm'r y. Same. id. See Scire Facias. REVOLUTIONARY CLAIMS. 1. Officers of the Virginia line in the Continental establishment, who be- came supernumeraries, before the passage of the act of May 1779, ch. 6, are not entitled to half-pay for life under that act. Slaughter's adm'r y. Vommonwealth, 2 Grat. 391. CommonwealiJi v. Peyton's adm'r., id. 393. 2. Such supernumerai-y officer, having been appointed by the executive of Virginia, superintendant of public works and commissioner of stores, and acting as such to the end of the war, is not entitled to half-pay for life, under the act' May 1779, ch.- 6, id., 393. 3. A claim for half-pay for life, as Surgeon's mate to one of the regi- ments of the Virginia Continental establishment, during the revolutionary war rejected, there being no proof of service to the end of the war. Com- monwealth V. Yates' adm'r., 9 Grat. 693. 4. An officer becoming a supernumerary after the passage of the act of 1778, stands on the same footing as to his claim for commutation, or half- pay for life, as one becoming a supernumerary before the passage of the act. Ihid. ROADS. 1. In controversies concerning roads, no appeal or supersedeas lies ffom; an interlocutory order of the county court. Treoilian r. Louisa R. B. CO., 3 Grat. 326. Hancock v. Richmond and Petersburg R. R. Co., id. 328. 2. An appeal as of right from orders of the county court, in controver- sies concerning roads, only exists where the controversy is concerning the 344 ROADS. establishment of a road ; and not when it ia a collateral controversy con- cerning the damages occasioned by a road already established. Ibid. 3. No limitation to the power of the county court to establish a road is to be found in the degree of accommodation which it may afford to the public at large. That is a matter which addresses itself not to the author- ity, but the discretion of the court. Lewis v. Tfashington, 5 Grat. 265. 4. The true limit to the authority of the court to establish a road is in the purposes for which the road is to be employed. A terminus of the pro- posed road must be at the court house, or a public warehouse, landing, ferry, mill, coal mine, lead or iron works, or the seat of government, or in an established road leading to one or more of these places ; but the other terminus may be at any place, whether public or private, of any descrip- tion, and the road may accommodate many or one. Ibid. 5. The county court having established a proposed road, may authorize a particular individual to open it. Ibid. 6. A county court professing to proceed under the act of 1819 in opening a road, it is not necessary that the record of their proceedings shall shew that the county court had previously dispensed with the act of 1835 in re- lation to roads, and had retained the act of 1819. White v. Coleman, 6 Grat. 138. 7. In an appellate court the previous order will be presumed, unless the party opposing the opening the road has called for the order and spread the whole evidence on that question on the record. Ibid. 8. A county court makes an order opening a road, but does not direct the damages assessed to the contestant to be paid to him. The court may at the next term, with the consent of the parties, reinstate the cause. — Ibid. 9. Persons who unite in a petition for a road, but do not become parties on the record, may be appointed viewers of the proposed route of the road. Ibid. 10. The damages assessed to the owners of the land through which the road passes, and the costs of the inquest, should be paid out of the county levy ; but the other costs of the applicant for the road should be recovered against the contestant. Ibid. 11. The mere use of a road by the public, for whatever length of time, will not constitute it a public road. Kelly's case, 8 Grat. 632. 12. A mere permission ^o the public, by the owner of land, to pass over a road upon it is, without more, to be regarded as a license, and revocable at the pleasure of the owner. Ibid. SALES. 345 13. A road dedicated to the public must be accepted by the county court upon its records before it can be a public road. Ibid. 14. If a county court lays off a road before used into precirits, and ap- points an overseer or surveyor for it, thereby claiming the road as a public road, and if after notice of such claim the owner of the soil permits the road to be passed over for a long time, the road may be ■well inferred to be a public road. Ibid. 15. An appeal to the circuit court is demandable, as of right, from an order of the county court discontinuing a public road. Senier et als. v. P%igh, 9 Grat. 260. 16. The county court having made an order establishing a public road, and directing it to be opened, may entertain and act upon an application to discontinue the road before it is opened. Ibid. , SALES. 1. Where the owner of personal chattels sells and delivers them to the purchaser, a title to the property passes, though voidable and defeasible as between the vendor and vendee, if obtained by false and fraudulent representations of the latter to the injury of the former in regard to the consideration. In which case the vendor may reclaim his property from the vendee, but not from a bona fide purchaser from or under the vendee, for value paid, without notice of the fraud. Williams v. Grivens, 6 Grat. 268. 2. The rule is not varied by the circumstance that the fraudulent purpose has been accomplished by the vendee's knowingly paying the consideration in counterfeit money, received by the vendor under the belief that it is genuine. Ibid. 3. When a contract is made for the purchase of an article thereafter to be delivered and paid for, so long as any act remains to be done by the vendor in order to put it in a state of readiness for delivery, or the amount of the purchase money remains yet to be ascertained, by enumeration, measurement or vreighing of the article, the general rule is, that the pro- perty does not pass to the buyer, but remains at the risk of the seller. Dixon V. Myers & Go., 7 Grat. 240. 4. In written proposals for a sale of. stock in a mining company, if the representations embraced therein are false as to any material fact by which the purchasers have been misled to their injury, and in which they are presumed to have trusted to the vendors, then the contract founded on each representation is void, •whether or not the vendors knew the representa- tions to be false at the time they were made, and whether or not made with a fraudulent intent. Crump v. United States Mining Company, 7 Grat. 352. 346 SCIRE FACIAS. 5. In such case the suppression from the written proposals of any fact within the knowledge of tlie vendors materially affecting the value of the thing sold, and inconsistent with the statements in the written proposals, vitiates the contract as fully as the false affirmation of any material facts, if the purchaser is injured thereby. Ibid. 6. If in such case the representations contained in the written proposals were in all material respects true, and no fact within the knowledge of the vendors materially affecting the value of the thing sold was suppressed to injury of the purchaser, the subsequent failure of the mine in value and productiveness does not impair the right of the vendors to enforce the con- tract. Ibid. 7. An agent to sell property is furnished by his principal with written proposals containing the terms of sale and a description of the property. If the agent makes other representations of the value and condition of the property, which are false, and thus induces persons to buy, the principals, though they neither authorized nor were informed of these representations, are bound by them, and the contracts are void. Ibid. SCIRE FACIAS. 1. Upon the trial, on a scire facias against bail, the function of a jury is exhausted when it negatives the defendants plea and it is then the province and duty of the court to enter up a judgment according to the scire facias. Bowyer v. Hewitt, Buffner & Co., 2 Grat. 193. 2. If in such case, the jury proceed to find a verdict for the plaintiff and find a sum different from that stated in the scire facias, it is merely supererogatory ; and the court should give judgment for the proper sum. Ibid. 3. The court below having given judgment for the plaintiff, in a scire facias against bail for too large an amount, the appellate court will reverse the judgment and give judgment for the proper sum. Ibid. 4. A scire facias against the heir upon a judgment against the ancestor, which does not state that proceedings have been taken against the personal representative, is hot defective on demurrer. Boger v. Denliam's heirs, 2 Grat. 200. 5. In such case the heir must set up the defence by way of plea in abate- ment. Ibid. 6. The act 1 Rev. Code, oh. 128, g65, p. 505, in relation to a scire facias to revive a judgment, is not repealed by the act of March 20th, 1831, Sup. Rev. Code, ch. 197, ?2, on the same subject. Williamson v. Crawford, 7 Grat. 202. SCIRE FACIAS. 347 7. Upon a scire facias to revive a judgment, neither a declaration nor a rule to plead is necessary. And if the writ is made returnable to the rules, and the defendant makes default, there should be an award of execution, which, if not set aside at the next tei-m, becomes a final judgment as of the last day of the term. Ibid. 8. Where by law separate terms of a circuit court are appointed for the trial of civil and criminal causes, a recognizance in a criminal case is properly made returnable to a term for the trial of criminal causes ; and a scire facias thereon is properly made returnable to the term for the trial of civil causes or to the rules ; the first being a criminal and the other a civil proceeding. Archer v. The Commonwealth, 10 Grat. 627. 9. In declaring on a recognizance it is not necessary to aver the existence of the particular facts which show that the court ofScer taking had authori- ty to take it". Ibid. 10. Judgment is recovered by justices for the benefit of the marshal of the Williamsburg chancery court. The defendent being dead, the scire facias to revive the judgment recites it correctly, and adds, "which marshal was W." This is no variance. Ricltardson' s adm'r v. Prince George Jus- tices, 11 Grat. 190. Poindeicter's adm'r v. Same, id. 11. The marshal being dead, the scire facias recites that it was awarded at the instance of M, his administrator.- It was not necessary to recite at whose instance it was awarded, and the recital therefore is surplusage, and does not vitiate the scire facias. Ibid. 12. It not appearing from the scire facias, the record or the defendant's plea, that the foundation of the judgment was a bond requiring a relator in the action, it must be regarded as a common law liability, subject to be sued on in the name of the obligees without a relator ; and whether W was ma^hal, or M was his administrator, is a question in which the defendant has no interest ; and it cannot be raised by him by plea in bar to the plain- tiff's claims. Ibid, 13. The scire facias stated that the judgment had been suspended by in- junction. This was unnecessary, and may be regarded as surplusage ; and a plea in bar that the judgment had not been suspended by injunction, offered no bar to the scire facias. Ibid. 14. The scire facias further stated that the injunction had been dissolved. A plea that it had not been dissolved is bad ; and an issue made up upon it is immaterial. Therefore, though improper evidence upon it is admitted, it is no cause for reversing the judgment. Ibid. 15. The pendency of an injunction to a judgment at law will not prevent the revival of the judgment upon the death of either the plaintiff or de- fendant; and the injunction operates upon the revived judgment on the scire facias to restrain and prohibit the issue of an execution thereon. Ibid. 348 SECURITIES. SECURITIES. 1. Although a creditor having remedies against several persons, each equally responsible to him, may proceed to enforce his debt against either, and is not bound to proceed against all, yet he waives this right, by con- vening all before the court and asking that the persons and subject, of right chargeable with the debt, shall pay it. Bentley et als v. Harris adra'r., 2 Grat. 357. 2. Partners make a note and then the partnership is dissolved. The partner who is authorized to settle up the business of the partnership can- not renew the note in the partnership name, so as to bind the other partner. Parker v. Cousins, 2 Grat. 372. 3v In such a case, though the last note does not bind the partner who has not executed it, the first note is still a valid security as against him, though it was surrendered, ^when the last note was taken. Ibid. 4. The taking a new security from one of two joint debtors, will release the other, only where there is an agreement by the creditor, express or im- plied, that he shall be released. Ibid. 5. The court granting administration or admitting an executor to qualify as such, has a discretion in regard to the amount of the security. And the general practice of requiring security in double the estimated value of the estate is a proper exercise of that discretion. Atkinson v. Christian, 3 Grat. 448. 6. The security authorized under the 41st section of the act 1 Rev. Code, oh. 104, is not in lieu of, but in addition to, the original security ; and both are bound. Ibid. 7. In determining the amount for which other good security ought to be required, regard ought to be had to the value of the estate remaining unad- ministered, including any accessions thereto beyond the original estimate thereof, and to the extent of the available security still furnished by the original bond. Ibid. Si The court granting administration or probat originally, alone has au- thority to take additional security when it may be required. And if it is directed by an appellate court, the order is directory only to the court granting the administration or probat. Ibid. 9. A vendor of land retaining the title, his security is not affected by lapse of time or the statute of limitations. Eanna v. Wilson, 3 Grat. 243. 10. A creditor having one security for three bonds, and another security for one of them, may apply the proceeds of the first security to the two bonds not secured by the last security. Vanes v, Mon- roe, 4 Grat. 52. SET-OFF. 349 11. Two tracts of land are sold together. The purchaser sella them separately, and is still indebted for a part of the purchase money ; which is known to both of his sendees. The tract last sold must be first applied to the payment of the purchase money due on the original sale. Alford v. Helms, 6 Grat. 90. 12. A debtor assigns certain securities to his creditor in satisfaction of his debt, being at the time under a misapprehension as to their amount ; and they prove to be largely more than is necessary to discharge the debt. A court of equity will restrict the effect of the assignment to the full satisfac- tion of the debt. Jennings v. Palmer, 8 Grat. 70. 13. A deed of trust is given to secure several bonds, some of which were afterwards assigned. The benefit of the deed of trust will pass with the assignment. Schofield v. Oox et els., 8 Grat. 533. See StJEETiES. SET-OFF. 1. A vendee of laud, being entitled to an abatement from the purchase money, and havingbecomo insolvent, a purchaser from him is entitled to set-off this sum against the bond for the purchase money, in the hands of an assignee. Taylor's adm'r v. Spindle, 2 Grat 44. 2. If there were two bonds, the set-off should be first applied to the bond last assigned. Ibid. 3. If the two bonds were assigned at the same time, or if both were in hands of the vendor, and judgment had been obtained on one, the set-off should be first applied to the other, Ibid. 4. If the vendee has paid part of the purchase money, either to the ven- dor or his assignee, with notice of the prior assignment ; to that amount, the purchaser from him cannot set-off against the first assignee. Ibid. 5. A defendant in equity, having pleaded the statute of limitations to plaintiff's claim, which is sustained as to part, he will not be allowed to set up simple contract claims of the same sort against the plaintiff's claims. White V. Turner's adm'r., 2 Grat. 502. 6. The Act, Sup. Rev. Code p. 157, ch. 62, authorizing defences iu the nature of set-off, authorizes such defences in actions of replevin. Murray, Caldwell & Co. v. Pennington, 3 Grat. 91. 7. In a lease the lessor covenants to put certain repairs upon the demised premises, which he fails to do. In an action of replevin, on a distress for rent, the lessee may set off the damages he has. sustained by the failure of the lessor to make the repairs. Ibid. 350 SET-OFF. 8. An obligor who has given a new bond to a remote assignee, and taken in and cancelled the first, especially if he had notice, at the time when he gave the new bond, of incumbrance on the land for the purchase money of which the original bond was given, will not be entitled to sei off the amount of the incumbrance against the bond. Washington v. Pollard, 5 Grat. 432. Same v. Lumpkin, id. 9. Where a defendant does not file a plea of set-off, but flies his account and gives notice of set-off, the plaintiff cannot reply the statute of limitar tions, and he may therefore rely on it in evidence. Trimyer v. Pollard, 5 Grat. 460. 10. If a set-off accrued before the action was brought, the period of limitations is five years before the commencement of the action. Ibid. 11. If the set-off accrued after the action was brought, the period of limitation is five years before plea pleaded, or account of set-off filed. Ibid, 12. One partner sells out to a third person, and the new firm undertakes to pay the debts of the old firm. The retired partner becomes indebted to the new firm, for which he executes his bond with sureties ; and this is as- signed for value. The new firm fail, not having paid the debts of the old firm ; and the retired partner pays them. He is entitled to set off the debts so paid, against his bond in the hands of the assignee. Hupp v. Hupp, 6 Grat. 310. 13. A judgment on a forthcoming bond was enjoined at the suit of the surety, on the ground that he has an action pending against the plaintiff in the judgment for a larger amount, and that he is insolvent. McClellan v. Kinnaird, 6 Grat. 352. 14. In assumpsit by an administrator, for a debt due to his intestate in his life-time, the defendant cannot set off a debt due to him for money paid as the surety of his intestate since his death. Minor v. Minor's adm'r, 8 Grat. 1. 15. In assumpsit, defendant pleads non assumpsit, and with it files an affidavit of set-off, and the set-off, which is a note. Though there is no plea of set-off or bill of particulars, the evidence in relation to the set-off is properly admitted. JBell y. Crawford, 8 Grat. 110. 16. A joint interest in husband and wife, cannot be set off by a debt due from the husband Olazebrook's adm'r v. Ragland's adm'r., 8 Grat. 332. 17. Defendant prevented by unavoidable accident from defending himself at law and setting up off-sets cannot enjoin the judgment in order to set them up in equity, the off-sets being no way connected with the debts sued upon, and he having a plain remedy for the recovery of his claims at law or in equity. Hudson v. Kline, 9 Grat. 379. SETTLEMENTS. 351 18. Qucere : If in an action by an assignee of a bond against the obli- gors, the latter can set up an offset which at the time of the assignment "was an equitable offset, but which by an aiTangement by him subsequent to. the assignment, became a legal offset? Ragsdale v. Hagy et als., 9 Grat. 409. 19. A vendee of land being entitled to come into equity to enjoin a judg- ment recovered by an assignee of a bond given for the purchase money, on the ground of difficulties in the title, though the title is decreed to him in the suit, he is entitled to set up in equity offsets which he held against the vendor prior to the assignment, and he was not bound to plead them at law. Ibid. 20. A defendant may have leave to file an additional account of off-sets when it will not produce delay to the plaintiff, and it is necessary to attain the justice of the case, and if the plaintiff obtains leave to amend his de- claration as the defendant is entitled to a continuance, there can be no ob- jection to filing the account on the ground of delay. Perkins' adm'r v. Hawkins' adm'x., 9 Grat. 649. 21. Though the bond of two is not a good set-off at law in an action by one of them on a bond, yet it may be made a good set-off by agreement be- tween the parties, and is competent evidence accompanied by such proof of a set off. Ibid. 22. In an action of assumpsit for various sums of money lent or paid for the defendant's intestate, though payments and set-offs cannot be proved without an account of such payments and set-offs filed, yet defendant may prove that the money sued for or any part of it, was not lent or advanced for the intestate, but was paid out of the money of the intestate in the hands of the plaintiff. Johnson's ex'x v. Jennings' adm'r., 10 Grat. 1. 23. An injunction to a judgment at law will not be sustained to allow the defendant at law to set up payments or set-offs, which he might have pleaded at law ; and if a discovery was necessary to enable him to prove them, he should have filed his bill of discovery in aid of his defense at law, or he should have |iled interrogatories to the plaintiff under the statute. Gerger v. Sirange's ex' or,, 10 Grat. 499. iiii SETTLEMENTS. 1. By marriage settlement, the whole interest in the wife's property is vested in her. She has the full power of disposing of or charging her per- sonal estate, to all intents and purposes, as if she were a ferfie sole ; and this though there is a clause prescribing the mode of disposition. Woodson, trustee, v. Perkins, 4 Grat. 345. 2. A married woman having given a mortgage on her separate estate to secure a debt, afterwards obtains a further loan from her creditor. Her 352 SETTLEMENTS. trustee will not be allowed to redeem the mortgage without paying the debt subsequently contracted. Ihid. 3. There having been no misconduct in the trustee of a married womaft,' it is error to malie a personal decree against him for the debt of his cestui que trust. Ibid. 4. In a suit brought by a trustee of a married woman, to assert and de- fend her rights, in which a full opportunity is afforded the cestui que trust to protect and defend her rights, it is not necessary that she should be made a party. Ihid. 5. Upon a settlement by a husband on himself and wife, and to the sur- vivor for life, she is given a power of appointing to whom the laud shall go in the event that she shall die without leaving issue at her death; so that such disposition is signified in writing under her hand and seal, or by last will and testament. The wife afterwards unites with her husband in a deed, by which she relinquishes her right in the land for a valuable consideration, and dies without issue, although sho was not privily examined as to her exe- cution of the deed, yet the same being under hand and seal in writing, as prescribed in the deed vesting in her the power, she thereby destroyed her power of appointment. Hume v. Hord et als., 5 Grat. 374. 6. The wife having the absolute power to give the land to whom she pleased, by the execution of the power in the manner aforesaid, it follows that she had the right for valuable consideration, and with the assent of all persons interested in the land, to destroy the power by the same means, and to permit the land to pass as if the power had never existed. Ibid. 7. Marriage articles made between an infant feme and her intended hus- band beneficial to her, and her contemplated issue, are obligatory upon the parties, and will be enforced in a court of equity by a settlement in con- formity therewith, on the application of the issue of the marriage. Sedy et als. V. Eowen et als., 5 Grat. 414. 8. Marriage articles entered into between the guardians of an infent feme and her intended husband, to which she is not a party, are of no olh ligatory force upon her. Ibid. 9. An infant feme may, by her acts, after she attains full age, and when sui juris, adopt or ratify a marriage agreement, made for her by her guar- dian. Ibid. 10. A testatrix bequeaths property to her married daughter, for her sepa- rate use ; so much thereof as may be in existence at her death, to go to her children, or their descendants, if any there be. And to effect the purpose of the bequest, she appoints a trustee, to whom the property is to be de- livered by the executor, and she directs that all receipts given to the trustee by the daugliter for payments made to her of principal or interest of the property, shall be to him a full discharge. The daughter is entitled to use both the principal and interest of the property at her discretion. Brown-^. George, 6 Grat. 424. SHERIFF. 353 11. An unrecoi'ded post-nuptial settlement by a husband on bis wife, of personal property derived from her fatlier's estate, of which he retains possession is void as to his creditors. Leicis ei als. v. Caperion's ex'ors et als., 8 Grat. 148. 12. Property conveyed in trust by a husband for himself and wife, by deed not duly recorded, is sold under a decree at their suit against the trustees, and conveyed by deed duly recorded. It is valid against a subse- quent creditor of the husband. Glazebrook's adm'r v. Ragland's adrn'r, 8 Grat. 332. 13. Where, by express contract before marriage, the husband releases all his marital rights to the wife's property, both during marriage, and if he survives her, the wife is to be regarded to all intents as a feme sole as to such property, and there is no necessity that the marriage contract ur set- tlement should limit the property to her next of kin upon her failure to ap- point ; but it will pass as if the wife died sole and , intestate. Charles v. CharUs, 8 Grat. 486. 14. A settlement which gives to the grantor a bare maintenance with his wife for life, and provides that the property shall not be subject to his debts thereafter contracted, does not vest him with such an interest in the pro- perty, as can be subjected to satisfy such after contracted debts. Johnston V. Zane's trustees et als., 11 Grat. 552. SHERIFF. 1. Rights and Duties of. I 3. Proceedings by and against. 2. Official Bond of. ! RIGHTS AND DUTIES OF. 1. A purchase by the deputy sheriff of land sold for taxes, is illegal and* the purchaser is trustee for the owner of the land. Taylor's devisees \. Stringer, 1 Grat. 158. 2. A sale by a sheriff, of an equity of redemption of lands, surrendered by a debtor in execution, upon his taking the benefit of the insolvent act, is legal. Tiffany v. Kent, 2 Grat. 231. 3. Upon taking an oath of insolvency, the property and rights of the in- solvent debtor vest in the sheriff, and he, as representing the creditor, may assert his rights, and set aside fraudulent conveyances of the insolvent, aud recover the pr ;perty for the benefit of the creditor. Ctough, &c., v. Thompson, 7 Grat. 26. 4. The sheriff who is the trustee for all interested in the estate of an in- solvent debtor, is not justified in selling the interest of the debtor in the 354 SHERIFF. ostiite surrendered in the schedule, or vested by law in the sheriff, when, owing to alleged incumbrances, the validity of which is controverted,, or the extent whereof is not ascertained and uncertain, the property is not in a condition to be disposed of, for its value. IMd. 5. The real estate of an insolvent debtor vests in the sheriff of the coun- ties where it lies, and the sheriff of the county where the oath is taken, is not authorized to sell it. Ihid. 6. Debts due to the insolvent debtor, and slaves and other personal pro- perty not in the possession of the sheriff, or which is in such a condition that he cannot take possession without process, cannot be sold by him, bo as to vest the legal title in the purchaser. Ihid. I. Where a variety of property is embraced in a schedule, a sale, not of the property speoifioally, but of the schedule itself, is a violation of duty on the part of the sheriff; and the purchaser at such sale, if he acquired the legal title, would, in a court of equity, be treated as a trustee for the benefit of those interested. Ihid. 8. A high sheriff may farm the sheriffalty, and authorize the party farm- . ing it, to superintend and manage the office as his agent, so that the acts of this agent in controlling and directing the other agents, will be binding upon the high sheriff. Holland v. Helm's adm'r, 7 Grat. 245. 9. Such a contract does not and cannot divest the high sheriff of the (power to dismiss any of the deputies employed in the office, or to refuse to permit any person selected by the farmer of the sheriffalty to qualify as deputy. Ibid. 10. The farmer of the sheriffalty required the other deputies to pay over the moneys collected on executions to him, and one of the deputies haying done so, though he might in some cases be liable to the creditor in the exe- cution, he is not liable to the high sheriff. Ihid. II. In the first year of a sheriff's term of office, an execution is return- ed, " levied, and not sold for want of bidders." After the sheriff goes out of office, upon a ^' venditioni exponas," the same deputy returns it "satis- fied." The deputy for the purpose of this execution, was still the deputy, and the high sheriff and his sureties are responsible for his acts. Tyree el aU. V. Wilson, 9 Grat. 59. 12. The levy having been made in the first year of the high sheriff's term, the sureties of that year are responsible. Ibid. 13. In the first year of the high sheriff's term of office, an execution against a third person and one of the deputies, is returned by another de- puty, " levied, and not sold for want of bidders." After the sheriff goes out of office upon a venditioni exponas, the deputy against whom the exe- cution was, returns it, satisfied to a certain amount. The high sheriff is liar ble upon the return. Tijrce et als. v. Donnally, 9 Grat. 64. SHERIFF. 355 14. The high sheriff cannot object that the debtor deputy received the money. Ibid. 15. The high sheriff is liable to the plaintiff, though the money was re- ceived by the deputy before the venditioni exponas issued. Ihid. 16. A sheriff is entitled to commissions on a ca. sa. executed on the de- fendant, vrho, after taking the benefit of the prison bounds, pays the amount of the execution to the plaintiff, by whom he is thereupon discharged from custody before the return day of the execution. Gardner v. Neal, 9 Grat. b5. 17. Where a power with a trust is vested by will in the executors, and one of them dies, and the other is removed, and the estate is committed to the sheriff, he was under the act of 1819, 1 Rev. Code, ch. 104, I 52, p. 388, authorized as such administrator, to execute the power and trust, and is liable for failure to execute it. Moshy's adm'r et ah. v. Moshy's adm'r, 9 Grat. 584. Miller- v. Jones et als. Id. 18. In such case the rents and profits of the land having been received by the deputies of the high sheriff, he is responsible fov them. 19. If the sheriff was not authorized by the will to take possession of the land, and receive the rents and profits, yet the estate having been com- mitted to the high sheriff, and his deputies having taken possession of the land, and received the rents and profits, on the principle that the high sheriff is responsible civiliter, though not criminaliier, for all the acts of his deputies done colore officii, he is bound to account for them. Ihid. 20. The deputy who farmed the sheriffalty gives bond with sureties, with condition to indemnify the high sheriff against all loss and damages which he may sustain in consequence of any failure or misconduct on the part of the deputy or of any other person whom he may employ to assist him in the office. The high sheriff being liable for the rents, the sureties of the deputy are liable to him for the default of the deputy and his assistant in the office. Ihid. 21. The fact that the county court has not provided a jail in which a detor taken in execution may be confined, does not authorize the sheriff who has taken a debtor in execution to permit him to go at large. If no jail is provided by the county court, it is the sheriff's duty, to provide one to keep the debtor, whom he has taken in execution in custody. Stone v. Wilson, 10 Grat. 529. , 22. What arrang_ement of property by a debtor is fraudulent as to his creditors so as to vest it in the sheriff upon the debtor's taking the oath for the relief of insolvent debtors. B. Slaton v. Pittman, sheriff, 11 Grat. 99. PHtman, sheriff, v. B. Staton. Id. ^ 23. Though the insolvent debtor never had possession of the property, 356 SHERIFF. but it was transferred by a fraudulent arrangement to a third person, the sheriff may recover the property from this third person. Ibid. 24. Though the property which consisted of slaves was sent to the premi- ses of B, the father of the person to whom the property was transferred, and who was an infant, and lived with B, and she claimed it, and B did not, B is not liable for it. Ihid. 25. ^Vhere property was given in trust by a testator for his son, it was held to be subject to the son's debts, and to vest in the sheriff upon the son's taking the oath for the relief of insolvent debtors. Cochran v. Paris ei ah., H Grat. 348. OFFICIAL BOND. 1. An action on the official bond of the sheriff for the misconduct of his deputy, in serving an execution must be at the relation of the plaintiffs in the execution. Governor for Leiglitona ^. Hinchman et als., 1 Grat. 156. 2. A bond by deputy sheriff and his sureties to the high sheriff for the faithful discharge of the deputy's duty, omits both in the penalty and con- dition, to designate the name of the deputy. There being nothing on the face of the bond to indicate that all named in the penalty were not appoint- ed deputies, and the obligors having sealed and delivered the bond as it was, they are estopped from denying that they are deputies. Cox et als. V. Thomas' adm'x, 9 Grat. 312. 3. Each obligor named in the penalty of the bond, must in such a ease be regarded as principal as far as his acts are concerned, and the other as his sureties. Ibid. 4. Though some of the persons named in the penalty did not sign the bond, the parties so named who did sign it, are to be considered as the obligors who are bound, and are recited to be admitted as deputies. Ibid. 5. The bond reciting that the obligee was high sheriff, and the party proceeded against as such was deputy, it estops all the obligors from de- nying these facts. Ibid. 6. The sureties of a deputy in his bond to the high sheriff for the faith- ful discharge of his duties, are estopped thereby from denying that their principal was deputy unless the bond is invalid. Cecil v. JEarly et als., 10 Grat. 198. 7. The bond of the deputy is not avoided by the fact that the county court did not enter upon the record that he was a man of honesty, probity, and good demeanor, and that he did not take the several oaths of office re- quired by law to be taken by a deputy sheriff. Ibid, SHERIFF. . 357 PROCEEDINGS BY AND AGAINST. 1. An indemnifying bond, given to the sheriff, on the sale of property under execution, which contains the conditions prescribed by the act of 1819, 1 Rev. Code, ch. 134, ^ 25, p. 533, though it does not contain the conditions prescribed by the act of 1828, Sup. Rev. Code, 272, is a good statutory bond, to protect the sheriff from the action of the claimant of the property. Ayleii v. Roajie, 1 Grat. 282. 2. An action may be maintained on the official bond of a sheriff, in the name of the person who was governor at the time the bond was executed, and it is not necessary to sue in the name of his successor in office. Gov- ernor for Bryan v. Mc'Julloch et als., 2 Grat. 175. , 3. A sale by a sheriff, of an equity of redemption of lands, surrendered by a debtor in execution, upon his taking the benefit of the act for the re- lief of insolvent debtors, is legal. Tiffany v. Kent et als., 2 Grat. 231. 4. A sheriff was permitted to amend his' return upon an execution after an action founded on said return, has been commenced by the plaintiff in the execution against the sheriff, and his sureties on his official bond. W Grat. 215. 62. A covenant by the holder of a bond with the principal obligor to give a specific time for payment does not release the surety at law. His only remedy is in equity. Devers v. Boss, 10 Grat. 252. 63. N, living in Virginia, brought two suits in South Carolina ; and B, living there; became his security for costs. N executed to B a bond with sureties living in Virginia to indemnify him. In an action by B against N and his sureties, tlie records of the suits brought by N in South Caroli- na were offered by B in evidence, and were objected to on the ground that they showed that B had not become the surety of N at the date of the bond of N and his sureties to him. Held: That the defendants not showing that B was surety of N for costs in any other cases, their bond must be held to refer to these suits ; and they were estopped by their bond from de- nying that B was the surety of N at the time of its execution. Cordle v. Burch, 10 Grat. 480. 64. The sureties of a deputy in his bond to the high sheriff for the faithful SURVEYS. 383 discharge of his duties, are estopped from denying that the principal was deputy, unless the bond is invalid. Cecil t. Early and others, 10 Grat. 198. 65. The sureties of a public officer are -not excluded from the benefit of the bankrupt act of 1841. Saunders v. The Commonwealth, 10 Grat. 494. 66. A guardian qualified in 1821. In 1825 he transfers a bond of his ward to a party whi^lly innocent of any participation in the guardian's fraud, in the payment of a debt. The ward comes of age in 1832, and takes no steps to obtain his estate from his guardian, until 1840, when the guardian becomes insolvent. He then sues the sureties of the guardian, and recovers from them the amount due to him from his guardian. In all this time the sureties had done nothing to secure the faithful discharge of his duties by the guardian, or to compel him to pay over to the ward his estate on his coming of age. Even if the party who had received the bond from the gurdian could be held responsible to the ward, he is not responsi- ble to the sureties. Hunter v. Lawrence's adm'r et al., 11 Grat. 111. 67. A surety in a forthcoming bond is a surety for the debt, and when he pays it as such surety, he is entitled to all the rights of the creditor against the original debtor, existing at the time he became bound for the debt, and the judgment for the benefit of the surety so paying, is not ex- tinguished, but is transferred with all its obligatory force against the prin- cipal, and constitutes a legal lien upon his real estate, owned at the date of the judgment or afterwards acquired. JSill v. Manser et al., 11 Grat. 522. 68. The surety in a forthcoming bond pays to the creditor a sum certain, the execution issued on the bond against tlie principal and himself, and takes a receipt as for money paid by him. The evidence of payment afforded by the receipt, will nut be repelled by proof of loose declarations, that he had loaned the money to the principal debtor, who was his brother, so as to deprive him of the right to be substituted to the- rights and reme- dies of the creditor. Ibid. 69. The creditor having taken a deed of trust from the principal debtor ' to secure the debt, and the debtor having subsequensly given another deed of trust upon the same, and other property, to secure debts to a third party, one of which was for money loaned to pay a balance due on the judgment, of which this third party had notice, the surety in the forthcoming bond is entitled to have the property embraced in the first deed applied to satisfy the amount he has paid, with interest on so much thereof as went to dis- ; charge the principal of the debt, ; and if that property does not discharge it to have the land embraced in the second deed, subjected to discharge the balance. Ibid. SURVEYS. t 1. It is not the duty of a surveyor of a county to furnish a warrant, and 384 TAX SALES OF LAND. make an entry for any person, and a promise by him without consideration to do this, ■will not entitle the party to an action of assumpsit against him. Hale V. Crow and wife, 9 Grat. 263. 2. The surveyor is to survey any land that any person may enter and re- quire hirrf to survey, though he knows it has been entered and surveyed previously for another person. Ibid. 3. On a survey directed in a cause some of the lines are run when one of the parties acts as chainman. Upon a second survey, another chainman is employed, and all but one of the lines are again run. The line not run, the surveyor says, he ascertains to be correct by other lines run ; and the line is submitted to the jury net as aline run, but as a protracted line. This is not error. Smith el al. v. Chapman, 10 Grat. 445. TAX SALES OF LAND. 1. The deed of the collector, made under the act of Congress of the 9th of January, 1815, laying direct taxes, does not furnish prima facie evi- dence of the regularity of the collector's proceedings. Jesse v. Prestan, 5 Grat. 120. Keith v. Same, id. 2. A party claiming title under a deed from the collector of the United States for land sold for the direct tax, must show that everything was done which the law required to be done before making the sale. Ibid. 3. The deposition of the collector in general terms, that the sale was made in exact pursuance of the act of Congress, without specifying what was done is not proper evidence of the fact. Evidence of the various pro- ceedings required by law before the sale was made, should be adduced to ■ enable the court to determine upon the facts so proved, whether the authori- ty to sell was properly exercised in the particular case. Ibid. 4. In a sale of land for taxes under the act of February 9th, 1814, 2 E. C. 542, by the circumstances of the sale which are to.be recited in the deed, is not meant all the steps taken by the various oiEcers, which precede the sale ; but the circumstances attending the sale itself, viz : That the sale was made at the time and place prescribed for the sale of lands re- turned delinquent for non-payment of taxes; if less than the whole lot or tract was sold, how much ; who was the purchaser, and the amount of the purchase money. Flannagan v. Grimmet et als., 10 Grat. 421. 5. It is not necessary that the deed shall state that the land had been advertised. lOid. 0. If the deed recites that the land was advertised in a mode that did not conform to the statute, yet as it was not necessary to recite in the deed that the land had been advertised, the recital in the deed of an insufficient ad- vertisement is not an irregularity on the face of the proceedings, which will avoid the deed. Ibid. TENANT— TENANT IN COMMON. 386 7- The deed cannot be questioned by parol proof of the failure to adver- tise the sale as the law prescribes. Ibid. ^ 8. If the deed of the sheriff is defective, it is still competent evidence in ejectment to shew with other oral evidence an actual entry under claim of title and continued holding thereunder, so as to make out a title or right of entry by actual possession. Ibid. 9. A party claiming title under a deed from a deputy sheriff for land sold for non-payment of taxes, under the act of February 9th, 1814, must shew that the person described as high sheriff, was such, and the grantor in the deed his deputy. Hobbs v. Shumates, 11 Grat. 516. 10. Though such deed recites an insufficient advertisement of the pro- perty conveyed, it is not thereby vitiated ; but is valid to convey such title as by law the sheriff was authorized to convey. Ibid, TENANT. See Landlord and Tenant. TENANT IN COMMON. 1. The possession of one coparcener or tenant in common, being the possession of all, no one, or more, of them, in possession of the whole sub- ject can avail himself, or themselves, of such possession, as a defence under the statute of limitations against the rest, without an actual disseisin or ouster of his or their co-parceners or co-tenants. Purcell and wife ei als. v. Wilson, 4 Grat. 16. 2. A great lapse of time, with other circumstances, may warrant a pre- sumption of disseisin or ouster, by one co-parcener or tenant in common «f another not laboring under disabilities. Ibid. 3. The payment of taxes on an undivided third of a tract of land, or a conveyance of a portion by metes and. bounds, not followed by actual en- try and possession, does not constitute an actual ouster by one tenant in common, of his co-tenant. Mannon et als. v. Hannah, 9 Grat. 146. 4. Qucere : If a tenant in common of an undivided interest in land, may not maintain a caveat against the issuing of a grant to a third per- son, upon a survey of part of the land, embraced within the limits of the grant, in which he holds an undivided interest. Walton v. Hale, 9 Grat. 194. 386 TENDER— TRESPASS. TENDER. 1. A tender of money in payment of a judgment, -vrill not authorize the quashing an execution issued thereon, unless the tender is followed by the payment of the money into court, and a motion to enter satisfaction on the record. Shumaher v. Nichols, 6 Grat. 592. 2. A tender of money, in payment' of a judgment, will not authorize a court of equity to stop an execution issued upon the judgment, where there is neither allegation nor proof that the defendant in the execution kept the money on hand for the discharge of the judgment. Ibid. 3. Qumre : If a court of equity will interfere to arrest an execution on a judgment at law, on the ground that the money had been tendered be- fore the execution was issued ? Ibid. TRESPASS. L Trespass vi ei armis will lie for burning plaintiff's wood lying on de- fendant's land, by defendant's setting fire to brush on another part of his land, for the purpose of clearing up the land, and with no intent to burn plaintiff's wood. Jordan v. Wyatt, 4 Grat. 151. 2. Case will lie also. Ibid. I 3. A recovery by the landlord in a writ of unlawful detainer and a sym- bolical delivery of possession by the sheriff, whilst the tenant is in actual possession, will not entitle the party to maintain trespass quare clausum fregit against the tenant. There must be a recovery in ejectment against the tenant, or actual possession at the time of the trespass. Krelzer v. Wysong, 5 Grat. 9. 4. The breach of a promise by the tenant to deliver the crop growing on the land to the party who recovered, is no trespass. Ibid. 5. Trespass quare clausum fregit must be brought by the person in the actual possession of the premises at the time of the trespass, if any one holds such actual possession. Ibid. 6. In a joint action of trespass against several who plead jointly, if the jury find them guilty jointly, they should assess the damages jointly against all. Crawford v. Morris, 5 Grat. 90. 7. If, in such case, the jury, by mistake, assess several damages, the plaintiff may cure the defect by entering a nolle prosequi as to all but one, and taking judgment against him. Ibid. 8. In such case, it is not correct for the court to instruct the jury that TROVER. 387 they may sever in the damages, and assess respectively whatever in their opinion, each party found guilty ought to pay. Ibid. ' 9. In such case, the jury should assess against all who are found guilty, the amount which they think the most guilty ought to pay. Ibid. 10. In such case, therefore, an instruction to the jury that they may sever the damages, is not an error of which a defendant can complain in an appellate court, though the plaintiff may. Ibid. 11. In trespass quare claiisum /regit, it is proper to charge that the de- fendant ejected the plaintiff for a long space of time, viz : from thence hitherto; whereby plaintiff for and during all that time lost, and was de- prived of the use and benefit of the said close. Bailey v. Butcher, 6 Grat. 144. 12. A joint action of trespass, assault, and battery, lies against husband and wife for a joint assa'ult by both. Roadcap and wife v. Sipe, 6 Grat. 213. 13. In such action against husband and wife for a joint assault, there may be a verdict and judgment against one, and in favour of the other. Ibid. 14. Though the mere breaking and entering the close of another is not a misdemeanor, yet if that entering is accomplished by circumstances con- stituting a breach of the peace, it will become a misdemeanor, for which an indictment will lie. Henderson's case, 8 Grat. 708. 15. The going upon the porch of another man's house armed, and from thence shooting and killing a dog, of the owner of the house, lying in the yard, in the absence of the male members of the family, and to the terror and alarm of the females in the house, is a misdemeanor for which an in- dictment will lie. Ibid. 16. In an action of trespass, assault, and battery, the plea is " son as- sault demesne," and the replication is, " de injuria." It is the plaintiff's right to introduce his evidence first. Young v. Higldand, 9 Grat. 146. 17. In such a case, if the defendant is permitted to commence and intro- duce his evidence first, it is still the right of the plaintiff to introduce his evidence to prove the assault and battery charged in the declaration. Ibid. TROVER. 1; Trover lies by one tenant in common of a personal chattel against his co-tenant, for the appropriation of the chattel to his exclusive use, where 388 TRUSTS. the chattel is of a nature to be necessarily destroyed by the use thereof. Lowe V. Miller, 3 Grat. 205. 2. K, the owner of a slave for life, in 1836, sells him to M, who in the same year sells him to J, who gives him to a daughter, by whom he is ta- lien out of the State. K dies in 1846, and then the owners of the remain- der in the slave bring trover against M, to recover the value thereof. Held : The plaintiffs not having had the right to the possession of the slave at the time M sold him, cannot maintain trover against M. Philips el ah. V. Martiney's ex'or, 10 Grat. 333. 3. If the sale by M gave the plaintiff's the right to bring trover against M, the action is barred by the statute of limitations. Ihid. TRUSTS. 1. The act, March 8tb, 1826, Sup. Rev. Code, ch. 200, § 1, p. 260, for the limitation of actions against trustees and others acting as fiduciaries, only begins to run from the time when the liability sought to be enforced has arisen. Oookus v. Peyton's ex'or, 1 Grat. 431. 2. Precatory words will raise a trust, in a, will, where the eijbject and cbject are certain, Harrisons v. Harrison's adm'x, 2 Grat. 1. 3. A purchaser of an equity of redemption in land, having paid off the incumbrance, may hav^ the land sold by the trustee to perfect the title. Tiffany v. Kent et als., 2 Grat. 231. 4. At a sale of an equity of redemption, the incumbrance is stated to be a particular sum, but in fact the debtor is entitled to a credit upon it. Quaere : If the purchaser is not bound to pay the sum stated? Ibid. 5. Property is settled to the separate use of a feme covert, for life, with remainder to her children. Before the trustees consent to act, it is agreed between them and the feme, that each trustee shall take and hold a moiety of the fund. In pursuance of this agreement, one of the trustees collects the fund, and with the approbation of the feme, pays over a moiety thereof to the other trustee, who wastes it and becomes insolvent. The trustee who collected the fund is liable for the whole amount of the fund, and for the interest on the moiety paid over to his co-trustee. ' Graham v, Austin el als., 2 Grat. 273. 6. The trustees having advanced to the feme, more than the interest of the trust fund, up to the time it is taken out of their hands, the interest on one moity of the fund was applied to reimburse them. Ihid. 7. Husband and wife convey the equ,ity of redemption in her land to a trustee, to be sold for the use and benefit of the grantors. They after- wards mortgage the same property ; and the wife dies. The land not hav- TRUSTS. 389 ing beeu sold, the trustee is entitled to hold it against the mortgagee, in satisfaction of debts due to him from the husband, or advances made by him to the husband before the mortgage. Siter, Price & Co. v. M'Clana- chan et. als., 2 Grat. 280. 8. Parol evidence is not admissible against the mortgagee without notice, to prove that at the time of executing the deed, it was agreed between the parties thereto, that the trustee should hold the property in trust to secure debts due from, and advancements made to the husband, lb d. 9. The trustee being a prior mortgagee of the equity of redemption in the land, cannot tack his debts, due from the husband, to his mortgage as against a subsequent bona fide mortgagee. Ibid. 10. There is a conveyance on oonsiJeration that the grantee will pay the debts of the grantor, which is not executed by the grantne, but accepted by him ; the property conjeyed whilst in the hands of the grantee, will be subjected to pay the debts of the grantor. Vanmeter's ex'ors v. Yanmeters, 3 Grat. 148. 11. On a bill to set up a parol trust attending the purchase of land, the proof shovrs that the vendor understood and intended the purchase to be upon the trust, but the purchase being by an agent, the proof, though it shows the agent understood the purchase to be on the trust, does not show the vendee so intended. Held : The proof is insufficient to establish the trust. Harris' ex'ors v. Barnett et als., 3 Grat 339. 12. Property having been placed by a principal debtor in the hands of his surety for the purpose of discharging a claim then prosecuting against them, the surety is to be treated as a trustee holding the property for the benefit of the creditor. JRoberis v. Colvin, 3 Grat. 358. 13. A purchaser from the grantor of land conveyed in trust, taking a conveyance from such grantor and the trustees, has notice of the trust, and is bound to know that>the trustees, have no power to sell the land. Mundy V. Vawier et als., 3 Grat. 518, 14. But if the title papers show an interest of but one-fourth in the grantor, such purchaser, without actual notice of the equitable title in the grantor' to the othpr three-fourths, will not be affected thereby. Ibid. 15. Property to which a trust has attached, will be subjected to the trust in the hands of a purchaser for value, who has constructive notice of the trust ; and this though it was irregular in the trustee to invest the trust fund in the property. Eeth et als. v. RicTimond, Fredericksburg & Potomap Railroad Co., 4 Grat. 482. 16 Though the deed creating the trust only conveys personal property, yet if this property is converted into land, and the title papers of the pur- chaser from the trustee show the fact of the conversion, the purchaser will 390 TRUSTS. be held to have notice of the trust, the trust deed having ■heen duly re- corded. Ibid. 17. Under the circumstances, the relief given to the cestuis que trust against the purchasers, was the purchase money, with interest from the time they were entitled to the fund. Ibid. 18. A deed of trust executed in part to secure fraudulent debts, but in part to secure a bona fide debt, the bona fide creditor having no notice of the dishonest purpose on the part of the grantor, is a valid security for the bona fide debt. Billups v. Sears et als., 5 Grat. 31. 19. All the persons secured by a deed of trust, either directly or indi- rectly, if named in it, are necessary parties to a bill assailing the deed as fraudulent as to some of the cestuis que trust, and seeking a distribution of the trust fund. Ibid. 20. A married woman having given a mortgaige.on her separate estate, to secure a debt, afterwards obtains a further loan from her creditor. Her trustee wiil not be allowed to redeem the mortgage, without paying the debt subsequently contracted. Woodson, trustee, v. Perkins, 5 Grat. 345. 21. Land is purchased with funds in which S has a life estate, with re- mainder to her children ; and the land is to be subject to the same trusts. But without the knowledge of S, it is conveyed to her husband, who con- veys it in trust to secure a debt; the creditor having knowledge of the facts. The creditor has no ' right in equity to charge the land with the payment of his debt. Smith et als. v. Flint et als., 6 Grat. 40. 22. A testatrix bequeaths property to her married daughter for her sep- arate use ; so much thereof as may be in existence at her death, to go to her children or their descendants, if any there be. And to effect the pur- pose of the bequest, she appoints a trustee,-to whom the property is to be delivered by the executor. And she directs that all receipts given by the daughter to the trustee for payments made to her of pi-incipal or interest of the property, shall be to him a full discharge. The daughter is entitled to use both tlie principal and interest of the property at her discretion. Brown v. George, 6 Grat. 424. 23. A trust deed held to bo fraudulent on its face, though executed to indemnify a bona fide surety. Spence v. Bagwell et als., 6 Grat. 444. 24. A trust deed secures creditors in classes. If the trustee refuses to act, one or more of the creditors may sue for all to enforce the trust- Reynolds v. The Bank of Va. et als., 6 Grat. 174. 25. In such case it is error simply to appoint trustees in the place of those who refused to act ; but the court should have the trust administered under its own supervision and control. Ibid. 26. A trust deed to secure creditors reciting the amount of the debts. TRUSTS. 391 due to the different creditors, is not conclusive even against the grantor and his administrator of the amount of the respective debts. Oriffin's colors V. A. Macaulay's adm'r, 7 Grat. 476. Dismal Swamp Land Co. v. Tlie Same. Ibid. 27. A creditor of a grantor in a deed of trust to secure creditors, may- show by proofs that his debt was intended to be secured under the provis- ions for another creditor. Ibid. 28. Under the words in the deed of " all debts due to the grantor," the indebtedness of a partner of the grantor to the partnership, and also a claim which the grantor has on a foreign government for damages for the detention of a ship, will pass. Ibid. 29. A deed executed bona fide to secure a loan of money, not to be en- forced for ten years, is a valid deed a^ against creditors of the grantor. Lewis et als. v. Oaperton's ex'or ei als., 8 Grat. 148. 30. Property covered by various deeds of trust, which maybe enforced at different periods, having been sequestrated at the suit of a judgment creditor of the grantor, when the court disposes of the trust subjects, and the rents and profits thereof, the judgment creditor will only be entitled to the rents and profits of the different trust subjects up to the earliest pe- riod when either of the valid incumbrances covering the subject was au- thorized to be enforced, and the different incumbrancers will each be en- titled to the rents and profits of the subject covered by his deed from the time he was authorized by the terms of the deed to enforce it. Ibid- 31. The wife of the grantor not having joined in the first deed conveying land to secure a debt, but uniting in a second deed conveying the same land to another creditor, the second incumbrancer is entitled to the value of the wife's contingent right of dower in the land, to be paid out of the proceeds in preference to the first incumbrancer. Ibid. 32. There being no seals or scrolls affixed to the names of the justices taking the privy examination of a feme covert, under the act of 1792, though in the body of the certificate it purports to be under their seals, whether the certificate is valid is at least so doubtful, as to cast a doubt upon the title ; and the husband being dead, and the interest of the wife having been the fee, and her title not being barred by lapse of timp, a sale of the land under a trust deed should not be made until the cloud upon the title is removed, though neither the feme during her life nor her heirs since, have set up any claim to the land. Bryan v. Stump, 8 Grat. 241. '33. Property conveyed by husband in trust for himself and wife by deed not duly r^ecorded, is sold under a decree at their suit against the trustee, and conveyed by deed which is duly recorded. Neither the land nor its proceeds are liable to a subsequent creditor of the husband. Olazebrooh, adm'r v. Ragland's adm'r, 8 Grat. 332. 392 TRUSTS. 34. A deed of trust is given to secure several bonds, some of -which are afterwards assigned by the obligee. The assignee is entitled to the ben- efit of the deed of trust. Schofield v. Cox et als., 8 Grat. 533. 35. A deed of trust is made to secure certain creditors for some of whose debts sureties are bound ; and the deed directs the trustees so to dispose of the trust property that no surety in the said debts suffer, or be injured on account thereof. The debts for which sureties are bound, are preferred debts, and to be first paid. Miller v. Holcombe's ex^or et als., 9 Grat. 665. 36. A mortgagee in possession and the mortgagor enjoin a sale of the land advertised to be made under a prior deed of trust upon the ground that the debt is usurious. The court holds that, the debt is partly usu- rious, but partly bona fide, and that the deed is valid security for the part that is bona fide ; and directs a sale of the property for the payment of what is bona fide due. The proceeds of the sale not being enough to pay this amount, and what was due in a prior deed, the mortgagee is not to account to the prior creditor for the rents and profits of the property ; there having been no application for a receiver, or that he should be held to account as such. Bank of Washington v. Hupp, 10 Grat. 23. 37. Though by the terms of- the mortgage the mortgagee had a discre- tion to apply the profits to pay his own debt, or those for which he was surety, or to the debt of the party secured by the prior deed of trust, he was not bound to apply any part of the profits to this prior debt ; and this especially as the holders of that debt claimed not under the mortgage but against it. Ibid. 38. A testatrix devises and bequeaths a small farm, slaves and other property upon the land to a trustee for the life of her daughter, H, re- mainder to the children of H living at her death. And the trustee is di- rected so to use and conduct the farm, &c., as to be most advantageous to the interests and support of H, and her children during her life. There are five children, and the husband of H is dead. H becomes indebted, judgments are recovered against her, and she is discharged as an insol. vent debtor; and then her creditors file a bill to subject her interest in the property to the payment of their debts. Held : H and her children are not entitled to have set apart for each of them an equal share of the trust property or of its annual products : but it is to be held by the trus- tee, and the annual products are to be applied to their support accord- ing to the necessities of each. Nickell & Miller v. Hundley et als., 10 Grat. 336. 39. The creditors could only be entitled to the ratable portion of H, of any surplus of the annual products of the trust subject after providing for thg support of 11 and her family, and as any such surplus is not alleged or shown to exist, the bill was properly dismissed. Ibid. 40. If any surplus product exists now, or shall hereafter exist, the plain- TRUSTS. 393 tiffs may file a bill to subject it, notwithstanding the dismissal of this bill. Ibid. 41. A deed of trust and power of attorney made at the same time by and to the same party, and having reference mainly to the same property, and to some of the same debts, considered as one instrument, and construed so as to stand together. French v. Townes ei als., 10 Grat. 513. 42. Though upon the face of the instruments the trustee in the deed, and the attorney in the power would have been a preferred creditor, yet he, in his answer to a bill filed by the cestui que trust, admitting that as to one class of his securities he was upon the same footing with the plaintiff, the instrument will be so construed. Ibid. 43. All the parties claiming under the instrument, there can be no question between them as to whether it was properly admitted to record. Ibid. 44. Trustees having sold property to one of the cesiuis que trust, where both were acting under a mistake of facts, and under this mistake the cestui que trust giving more for the property than he would have given, because it was to be credited on his debt ; and it proving to be more than his share of the fund, the sale will be set aside, and both will be charged with the true value of the property ; and the whole debt of the cestui que trust will be estimated in the apportionment of the fund. Ibid. 45. In the absence of any proof to the contrary, a commissioner who is directed to take an account of the trust fund and the trust debts, in stat- ing the account of the debts, should take the amount of the debts as stated in the deed. Ibid. 46. Before a judgment is recovered one half of the defendant's land had been purchased and payments made upon it ; and after the judgment the purchaser gave up the land to his vendor, and took a deed of trust upon it for the amount of his payments. The taking the deed of trust merged any prior equity he might have had, and the judgment is to be preferred to the deed. Buchanan v. Clark et als., 10 Grat. 164. 47. A prior deed of trust unrecorded is null and void as to a sujisequent judgment ; and the judgment is a lien upon the property embraced in the deed. McCance v. Taylor, 10 Grat. 560. 48. A settlement which gives to the grantor a bare maintenance with his wife for life, and provides that the property shall not be subject to his debts thereafter contracted, does not vest him with such an interest in the property, as can be subjected to satisfy such after contracted debts. Johns- ton V. Zane's trustees et als., 11 Grat. 552. 49. Upon a bill against a trustee and cestui que trust in a deed, the trus- tee answers, and puts the allegations of the bill to issue : but the bill is 394 DEEDS— TBUSTEES. taken for confessed as to the cestui que trust. The answer of the trustee protects the cestui que trust ; and the plaintiff must prove the case as to both. Ibid. 50. A conveyance of land and slaves upon a trust to permit the slaves to live upon the land, and take the profits of the land and of their own labour to their own use, they to continue to be slaves, is null and void, and passes nothing to the grante3 or the slaves. Smith's adm'r v. Betty et als., 11 Grat. 752. Same v. Thurman et als. Ibid. 51. Money lent by a bachelor uncle to his nephew, to secure which, a deed of trust was executed, was held under the circumstances to have been given and released by the uncle to the nephew, so that a court of equity would refuse to enforce the trust at the suit of the executors of the uncle. FitzhugVs en^ors v. Fitzhugh, 11 Grat. 210. 52. A deed of trust which, among other things, conveys growing crops of wheat, rye and oats, and which is not to be enforced for two years from its date, is not fraudulent -per se as to creditors. Cochran v. Paris et als., 11 Grat. 348. Dance et als. v. Seaman et als. Id. 53. Though the deed be executed without the knowledge of the credi- tors secured by it, yet if when informed of its execution they assent to it, it is valid. Ibid. See Deeds- trustees. 1. A trustee acting in good faith, is only liable for his own receipts. Boyd's ex'ors v. Boyd's heirs, 3 Grat. 113. 2. Trustees join in a sale of real estate which it is proper they should make, and the proceeds of sale are received by one, the others are not re- sponsible for them. Ibid. 3. In such a case the proof of fraud must be distinct and conclusive to charge the other trustees. Ibid. 4. A court of equity will not entertain a suit by a trustee or cestui que trust against purchasers of the trust property claiming adversely, there be- ing no obstacle in the way of proceeding at law. Sheppards v. Turpin, 3 Grat. 373. 5. Property conveyed in a deed of trust is taken under execution and sold ; after five years the purchaser is protected by the statute against the action of the trustee or cestui que trust, to recover it. Ibid. TRUSTEES. 395 6. A mere constructive trustee may protect himself by the statute of limitations. Ibid. 7. A trustee accountable for rents and profits received by him is charge- able with interest thereon. Mundy v. Vawter et ah., 3 Grat. 518, 8. A purchase by a trustee in violation of his trust, and a conveyance to him by the grantor in the trust deed and the other trustee, are wholly null and void. Ihid. 9. Such a trustee cannot recover on the warranty in his deed, but the contract having been made under a mutual mistake as to the title, he may recover from each grantor what he received of the purchase money. Ihid. 10. Land is conveyed in trust, first, to pay the debts of the grantor out of the rents and profits ; second, for the support of the grantor, his wife and children ; and third, at his death to be divided among the children. The trustees have' no authority to sell the land for the payment of the debts of the grantor, or for any other purpose, however urgent the neces- sity for such sales. Ihid. 11. A trustee defendant resisting plaintiff's claims, and failing in his defence, is liable for costs. Beverley v. Brooh et als., 4 Grat. 187. Same V. Scott et als. Id. i 12. A trustee has no power to change the trust fund, except as author- ized by the instrument creating the trust. Heth et als. v. Richmond, Fred- ericksburg & Potomac Railroad Co., 4 Grat. 482. 13. In an action by a trustee on an indemnifying bond, qucere : If plain- tiff is not entitled to recover, though some of the debts secijred by the deed are fraudulent, if other debts secured by it are bona fide? Billups v. Sears et als., 5 Grat. 31. 14. In an action by a trustee on an indemnifying bond, the defence is, fraud in the deed; but there is a verdict and judgment for the plaintiff. The defendant afterwards comes in equity, on the ground of after-discov- ered evidence establishing the fraud as to some of the debts secured, but not questioning the bona fides of others, and asks for an injunction to the jiidgment, for a new trial, and for general relief. The ground of equity jurisdiction being established, the court will not direct a new trial, because it would not probably afford the proper relief; but will retain the cause, and allow the plaintiff to impeach the deed, notwithstanding his unsuc- cessful effort at law. Ibid. 15. The cause being properly in the court of chancery, the plaintiff is entitled to have an account of the trust subject, and have it properly dis- posed of among all the parties interested in it, according to their respec- tive rights. Ibid, 396 TRUSTEES. 16. There having been no misconduct in the trustee of a married wo- man, it is error to make a personal decree against him for the debt of his cestui que trust. Woodson, trustee, v. Perkins, 5 Grat. 345. 17. In a suit brought by the trustee of a feme covert to assert and de- fend her rights, in -which a full opportunity is afforded the cestui que trust to protect her rights, it is not necessary that she should be made a party. Ibid. 18. A trustee appealing from a decree construing the trust, and the de- cree being affirmed, he shall pay costs. Brown v. George, 6 Grat. 424. 19. A trustee to sell, selling such property and such title only as is vested in him, according to the terms prescribed, and without warranty or fraud, incurs no responsibility to the purchaser. Sutton v. Sutton, 7 Grat. 234. 20. The object of the trust being to sell for what the property will bring and there being no warranty by the grantor in the deed of either title or quantity, the purchaser is not entitled to relief for a mistake in the esti. mated quantity of the land. Ihid. 21. A person named a trustee in a deed to secure debts, unites in sales necessary in the execution of the trust, and other formal acts, but he re- ceives none of the trust funds, they being received by his co-trustee. And he is guilty of no fraud in relation thereto. He is not responsible for the misapplication or waste of the funds by his co-trustee. Griffin's ex'ors v. A. Macaulay's adm'r, 7 Grat. 476. Dismal Swamp Land Go. v- Same. Id. 22. A trustee is not responsible for estimated rents, when he had re- ceived none, where his delay in selling the property arose out of the diffi" culty of finding a purchaser. Ibid. 23. The trusts of a deed having been satisfied, it may be released by the trustee to a subsequent purchaser from the grantor. Bryan v. Stump, &c., 8 Grat. 241. 24. Property is conveyed to trustees to be sold for the payment of cred- itors of the grantor. Under the circumstances of the case, both trustees are responsible for the application of the whole of the trust fund. MiUer V. Holcombe's ex'or et als., 9 Grat. 665. 25. Trustees having sold slaves, a part of the trust subject, to three partners, all of whom were men of wealth, without taking any security for the price, and having permitted them to retain it for years, until they all became insolvent, are personally responsible for the amount of the trust fund so lost. Ibid. 26. A trustee making a compromise with a third person in relation to the trust subject, though he may purchase the subject for himself, is bound to account for all the profits made un the transaction. Ibid. TRUSTEES. 397 27. Quaere : If in an action by a trustee in a deed of trust to recover property against a purchaser from the grantor, proof of payment of the debt is admissible to defeat the action under the general issue ? Nichols V. Campbell, 10 Grat. 560. 28. If defendant may prove payment of the debt before the institution of the suit, and after the day of payment prescribed in the deed, he can- not, under the general issue, prove payment after the commencement of the action. If such payment could be a good defence, it could only be under a plea to the further maintenance of the action, or puis darrein con- iirmance, according as the payment was made before or after plea pleaded. Ibid. 29. One of three administrators of a creditor in a trust deed being pres- ent-when the sale was made to the defendant, and not making any claim to the slaves or objecting to the sales, even if his conduct was fraudulent, would afford no defence to the action at law ; the title to the property not being in the administrator, but in the trustees in the deed ; and the act of the administrator could not divest the title of the trustees. Ibid. 30. An injunction to inhibit the sale of the property by the trustees is not a bar to their bringing an action for the recovery of the trust property, and even if they are guilty of a contempt, that is to be redressed by the court of chancery acting upon the parties, and wilL not prevent the main- tenance of the action. Ibid. 31. In such a case, the pendency of the injunction will not mitigate the damages which the plaintiffs are entitled to recover. If entitled to re- cover the property, they are entitled to recover the hires and profits from the time it or they were held adversely. Ibid. 32. The trustees having brought an action of detinue to recover the trust property, and one of them dying, the right of action survived to the other ; and he may carry on the suit. Ibid. 33. In such case, pending the suit, the beneficiary dies, and the surviv- ing trustee becomes his administrator. A decree is made in a chancery cause, in which the grantor in the deed, the administrator and the others are parties, directing the sheriff to execute the trust. This decree does not'divest the trustee of the legal title, nor destroy the right of action ; but the sheriff has a right to control and manage the cause in its further prosecution ; and to use the name of the trustee in any other suit which may be necessary to recover possession of any part of the trust property. Ibid. 34. A court of equity will not in general assume the exercise of a dis- cretionary power vested in a trustee, nor interfere to control a trustee acting hona fide in the exercise of his discretion. Nor will a suit be entertained to compel a trustee to exercise his power. Cochran v. Paris et als., 11 «rat. 348. 398 TURNPIKES— UNLAWFUL ENTRY AND DETAINER. 35. A testator gives his estate to his executors for the benefit of his son ; if and when they shall judge that it should be prudent to entrust him with it, to turn it over to him. The executors having declared their judg- ment that the son may be entrusted with the estate, equity will compel them to turn over the estate to him. And before it is done, the son has such an interest in the estate that it is subject to his debts. Ibid. 36. Real estate is conveyed to secure debts. The grantor in the deed has at the time but an equitable title, but is entitled to call for the legal title. It is an abuse of his power by the trustee to sell the property before getting in the legal title. Bossett v. Fisher et als., 11 Grat. 492. 37. The trustee having sold the property for one-fourth of its value, without getting in the legal title, and the principal creditor having be- come the purchaser, under the circumstances, equity will set aside the sale. Ibid. TURNPIKES. 1. The president and directors of the North-west Turnpike road are a corporation liable to be sued for work and labour performed, and materials furnished for them, though constructed on account of and owned by the Commonwealth. Bunnington v. President and Directors N. W. Turnpike Road, 5 Grat. 160. 2. For the construction of the statutes in relation to the turnpike over Price's mountain, see Price's heirs v. Price's adm'r, 9 Grat. 45. UNLAWFUL ENTRY AND DETAINER. 1. The defendant in a proceeding of unlawful detainer dies pending an appeal by the plaintiff below. The cause cannot be revived. CTopm^n v. Dunlap, 4 Grat. 86. 2. On a warrant of unlawful entry and detainer against two, the warrant is executed on one, but not on the other. The plaintiff may proceed against the one upon whom the warrant has been executed. Barman v. Odell, 6 Grat. 207. 3. No further proceedings can be had upon that warrant, against the one upon whom it has not been executed, before the return day thereof. Ibid. 4. In a proceeding of forcible entry and detainer, the court failing to meet on the day to which it is adjourned, the cause is not discontinued, but USAGE— USURY. 399 stands adjourned, by operation of law, to the next term of the county court. Mann v. Gwinn et als., 8 Grat. 58. 5. Upon a writ of unlawful detainer, the defendant sets up title in him- self. The plaintiff may prove that the defendant entered on the premises under a parol lease from himself, though the lease proved vras to con- tinue more than a year. Adams v. Martin, 8 Grat. 107. 6. In a writ of unlawful detainer, the defendant claiming title under a deed to himself and another as joint tenants, that other person is not a competent witness for him to sustain his right of possession. Ibid. 7. The caption of a deposition, describing it as taken in a proceeding of unlawful entry and detainer, is sufficiently accurate to authorize the reading of the deposition, though the proceeding is for an unlawful de- tainer. Oaks V. Miller et als., 8 Grat. 6. 8. If a case of unlawful detainer has been pending in the county court for more than twelve months, without a final decision, it may be removed on motion to the circuit court. Harrison v. MiddJeton, 11 Grat. 527. Kincheloe v. Tracewells, 11 Grat. 587. 9. The year is to be estimated from the organization of the court sum- moned to try the unlawful detainer. Kincheloe v. Tracewells, 11 Grat. 587. 10. An unlawful detainer case removed to the circuit court, is properly placed on the docket at the head of the civil causes in the court. Harri- son V. Middleton, 11 Grat. 587. 11. A landlord sells land in possession of his tenant by agreement under seal, and the tenant refuses to deliver possession ; the landlord is the pro- per party to institute a proceeding of unlawful detainer to obtain posses- sion. Hid. 12. To entitle the plaintiff to recover possession upon a warrant of un- lawful detainer, he must prove that the defendant withheld the possession at the date of the warrant. But if the warrant does not state the with- holding possession by the defendant, that may be aided by the complaint which states the fact. Kincheloe v. Tracewells, 11 Grat. 587. USAGE. ' 1. A creditor requests his debtor to remit the amount due ; this does not authorize evidence of a local usage or understanding to give a meaning to the terms of the letter different from that which they obviously bear. Gross, Myers & Moore v. Criss, 3 Grat. 262. 2. Whether a remittance of money by mail is the usual mode when a 400 USURY. creditor directs his debtor to remit money to him in general terms, without prescribing the mode, is a question of fact to be ascertained by a jury, and not to be decided by the court. Ibid. USURY. 1. The plaintiff, in a judgment at law, against the administrators of the obligor in the bond in which it was founded, goes into equity to enforce it, and there the administrators insist that there was an usurious premium for forbearance, included in the bond. Held : The relief will only extend to the usurious premium, and the judgment is valid for the balance thereof. Rankin's ex'or v. Rankin's adm'rs, 1 Grat. 153. 2. A person having borrowed money on usurious interest, procures the bond of a third person, which he transfers to his creditor, in part discharge of the usurious debt and executes his own bond to such third person for the same amount, giving a deed of trust to secure the latter. Afterwards the usurious creditor requiring the payment of the bond transferred to him, the obligor in that bond, directs a sale of the trust property. Equity will enjoin the sale of the trust property, and if the usurious creditor at- tempts to enforce the payment of the bond transferred to him, will en- join him from such proceeding. Gabaness v. Matthewset als., 2 Grat. 325. 3. A private person discounts commercial paper and deducts the interest at the time of the discount. This is not usury. Parker v. Cousins, 2 G^-at. 372. 4. On the discount of a note for the maker, it is agreed that it may he renewed every sixty days for a specified time, on the makers paying the discount. It is so renewed and upon the renewals, interest is charged twice for every sixty-fourth day. This is not usury. Ibid. 5. On the discount of commercial paper, the month is reckoned at thirty, and the year at three hundred and sixty days, and interest of one-half per cent, for thirty days, is taken in advance. This is not usury. Ibid 6. A usurious security is given for a pre-existing bona fide debt. Though the usurious security is void, the pre-existing debt is still valid and may be recovered. Ibid. 7- A bond and deed of trust executed for a loan of money, the amount of which is made up, in part, of a preceding valid debt, and in part of stocks passed at a price considerably above their market value, is usurious. Bank of Washington v. Arthur et als., 3 Grat. 173. 8. Though the bond and deed of trust is usurious and void, yet as a part of the consideration thereof is a pre-existing valid debt, a court of equity will not compel the obligee to establish his claim at law before pro- USURY. 401 ceeding to enforce his security ; and the obligee will only be relieved in equity upon equitable principles. Ibid. 9. Upon a bill framed for compelling the obligee to establish his debt at lavr, the court refusing that relief will relieve on principles of equity. Ibid. 10. The obligor in the bond is not bound by a promise to pay to the as- >-«ignee after assignment, without consideration ; but may set up the usury against the assignee for value. Ibid. 11. The failure of the obligor to inform the assignee of the nature of the consideration, and his promise to pay not proceeding from fraudulent intent, and having produced no injury to the assignee, the obligor is not precluded from setting up the usury against the assignee. Ibid. 12. Interest paid on a bond in advance for three years, and this stated in the bond, but paid in land at a price fixed in reference to the annual interest for three years, is not usurious ; and the plaintiff may prove the facts on the trial. Porterfield v. Coiner, 4 Grat. 55. 13. To repel the intent to take usurious interest, plaintiff may show the value of the land at the time of the contract. Ibid. 14. L and C, at the request of S, execute their bonds^each to the other, and sell them to bona fide purchasers, and pay over the proceeds to S, who executes his bond to them for the amount of their bonds. The purchase of the bonds of L and C at a discount is not usury, and the bond of S to L and C is not usurious. Law's ex'ors v. Sutherland et als., 5 Grat. 357. 15. The party who pleads usury must prove it. Marnsberger's adm'r v. Kinney, 6 Grat. 287. 16. What is not a 'prima facie case of usury, which will put the onus upon the plaintiff to prove a further consideration of the bond sued on. Ibid. 17. A surety in a bond who had given a deed of trust to secure the debt, executes another deed of trust to secure another debt of his principal due to the same parties, in consideration of the forbearance of the creditors to sell under the first deed. The second deed is usurious and void. Hopkins, &c. V. Koonce, 6 Grat. 387. 18. An assignment of a bond at a large discount, with a deed of trust by the assignor to secure the whole amount of the bond, if the obligor should fail to pay it by a certain time, is usurious. Bell et als v. Calhoun, 8 Grat. 22. 19. A party coming into equity to injoin a sale under a usurious deed of trust, though he does not ask a discovery, is only entitled to relief to the extent of the usurious premium. Ibid. 402 VARIANCE. 20. A deed of trust upon land is executed to secure a usurious debt. Afterwards, a new bond is executed, from which all the usurious premium is excluded, and it is agreed between the parties that the deed of trust shall stand as a security for the new bond. Subsequent to this agreement, a third party recovers a judgment against the grantor upon a bond execu- ted before the deed was made, and files a bill to set aside the deed as usuri- ous. The parties having by their agreement done all that a court of equity would have donp, and having agreed that the deed of trust should stand as a security for the second bond, that agreement is valid, and the deed is a valid security for the bond. Martin v. Mall et ah,, 9 Grat. 8. 21. In a controversy between the obligor and assignee of a bond, the obligee is not a competent witness to prove the usury.. Wise v. Lumb, 9 Grat. 294. 22. The answer explicitly denying the allegations of the bill as to the usury, and there being no competent evidence to prove it, an injunction obtained to the judgment at law should be dissolved, and if the cause is ready for a hearing, the bill should be dismissed. Ibid. 23. An issue should not be directed in such a case, and if directed, and there is a verdict finding the usury, the injunction is still to be dissolved, and the bill dismissed. Ibid. 24. The statute, Sess. Actsnf 1844, ch. 70, p. 54, in relation to pleading usury, though in terms applicable only to pleas, yet is properly applica- ble to a replication to a plea of set off. Hope v. Smith, sheriff, 10 Grat. 221. 25. Sheriff sues upon a bond surrendered by an insolvent debtor, and defendant pleads as offsetts two judgments recovered against the insolvent after he took the oath, in actions commenced before. The sheriff cannot set up usury in the bonds upon which the judgments were obtained. Ibid. VARIANCE.* 1. Declaration in debt on indemnifying bond, alleges defendants bound themselves to pay to any person claiming title to the property all damages, &c. The bond offered in evidence, is in a penalty and with a condition. Held : no variance and admissible evidence. Kevan v. Branch, 1 Grat. 274. 2. In assumpsit, the writ lays the damages at ?500, the count lays them at $600 ; and there being a judgment by default for want of appearance, the jury assesses the damages at $455. The variance between the writ and the count is immaterial. Dabneys v. Knapp, Preston & Co., 2 Grat. 354. * See Code, ch. 171, J 18, p. 648: Code, oh. 177, { 7, p. 672. Code, ch. 307, § 9, p. 770. VENDOR AND PURCHASER, 403 3. The -writ states the christian name of the plaintiff, by the initial letter and the count gives the name in full. This is no variance. Ibid. 4. In a suit by partners, the writ gives the initial letter of the middle name of one of the plaintiffs as P. The count gives it as B, but in both the vfrit and the count, the partnership name is given. The variance is immaterial. Ibid. ' 5. Where there is a variance between the presentment and the informa- tion, it may be availed of as cause against filing the information, or by mo- tion to quash it, Jones' case, 2 Grat, 355. 6. In a case of misdemeanor, after the plea of " not guilty," and a trial and verdict on that plea, it is not competent to arrest the judgment for any supposed variance between the information and presentment. Ibid. 7. To take advantage by a demurrer of a variance between the declara- tion and the bond declared on, the defendant must crave oyer of the bond. Sterreit v. Teaford, 4 Grat. 84. 8. In an action on an indemnifying bond, the declaration alleges that the obligors bound themselves to indemnify, &c. In the bond they bind themselves, their heirs, executors and administrators jointly and severally. This is no variance. Dickinson v. Smith & Carter, 5 Grat. 135. 9. In an action on an appeal bond, the declaration states under a scilicet, the costs at a certain sura, and makes profert of the record of the court of appeals. The defendant craves oyer of the record and demurs generally. The record is properly set out in all respects, but the costs endorsed by the clerk of the court of appeals are less than the sum stated in the declara- tion ; that sum including the costs for entering the judgment of the court of appeals in the circuit court and issuing the execution upon it. Held : let That the profert of the record did not extend to the endorsement of the costs by the clerk ; and the variance as to the costs was no ground of demurrer. 2d. That there was no variance, as the costs in the circuit court ■were properly embraced in the demand in the declaration. Friend v. Woods, 9 Grat. 37. - 10. Jndo-ment is recovered by the justices for the benefit of the Marshal of the Williamsburg Chancery Court. The defendant being dead, the scire facias to revive the judgment recites it correctly and adds " which marshal was W." This is no variance. Richardson's adm'r v. Prince George Jus- tices, 11 Grat. 190. Poindexter's adm'r v. Same, id. VENDOR AND PURCHASER. 1. It is incident to a sale of land by the acre that the purchaser shall be allowed for a deficiency in the quantity of land in the tract purchased. Neal V. Logan, 1 Grat. 14. 404 VENDOR AND PURCHASER. 2. What conditions in the terms of sale, will not deprive a purchaser of the right to an allowance for deficiency. Ibid. 3. Vendee put into possession of land bound to pay interest on the pur- chase money. Oliver's ex'or v. Hallam's adm'r, 1 Grat. 298. 4. A vendor of real estate, retaining the title, the statute of limitations can not be set up as a bar to his recovery of the purchase money. Hop- kin's adm'r v. Cockerell et als., 2 Grat. 88. 5. In such case the staleness of the demand is no defence. Ibid. 6. A purchaser of an equity of redemption, having paid off the incum- brance may have the land sold to perfect the title. Tiffany v. Kent et als., 2 Grat. 231. 7. When a vendor of an interest in land has no lien for the purchase money.* Sharp v. Kerns et als., 2 Grat. 348. 8. A deed of trust for the payment of debts, vrithout notice preferred io the vendor's Hen for the purchase money. Bicheson v. BicTieson et als., 2 Grat. 497. 9. A third person having obtained a decree against a vendee of land for a sum of money to be paid out of the purchase money due the vendor and the vendee having compromised that claim for less than the amount there- of, he is obly entitled to a credit upon the purchase money for the sum actually paid. Byron v. Salyards et als., 3 Grat. 188. 10. There having been a mutual mistake as to the extent of the vendor's title to the land sold, a court of equity, under the circumstances, will set aside the sale entirely. Irick and wife v. Fulton's ex'ors, 3 Grat. 193. 11. When no demand has been made by the vendor, previous to filing his bill to set aside the sale, and the court sets it aside on the ground of mu- tual mistake, the court will only decree rents and profits from the filing of the bill and will decree interest on the purchase money from the same time. Ibid. 12. A sale of land being set aside, on the ground of mutual mistake, the vendee will be entitled to compensation for permanent improvements made upon the land ; but not to exceed the rents and profits. Ibid. 13. The vendor of land retaining the title as a security for the purchase money, his lien upon the land cannot be affected by any lapse of time, short of a period sufiicient to raise a presumption of payment, whatever may be the operation of the statute of limitations in an action at law for the purchase money. Manna v. Wilson, 3 Grat. 243. 14. A vendor of land takes a bond for the purchase money and retains* * Vendor's equitable lien abolished. Code of Virginia, ch. 119, J 1, p. 510. ' > VENDOR AND PURCHASER. 405 the title. He does no^ lose the lien by taking an order for the amount on a third person, payable at a distant day, which is not accepted and surren- dering the bond. Knisely v. Williams et ah., 3 Grat. 263. 15. The order not being accepted, the vendor is not bound to wait until the time of its payment before proceeding to enforce his vendor's lien. Ibid. 16. What is a contract of hazard, and so not a subject of compensation for either excess or deficiency of land. Seamonds v. McGinniss, 3 Grat. 319. 17. A contract in gross for land, is made upon the belief of both parties that a particular line is the southern boundary of the vendor's land, though in fact he owns beyond it, the vendee is not entitled to the land south of the line. Ihid. 18. The registry of a deed conveying by general description, without designating the land conveyed, is not notice in law to a subsequent pur- chaser from the grantor, of the existence of said deed. Munday v. Vawter efah., 3 Grat. 518. 19. Actual notice cf such a deed, and of its contents, will not affect a subsequent purchaser unless he had notice that the land purchased by him . was embraced by the deed. And the notice must be such as to effect his conscience, and is not enough if it merely puts him upon enquiry. Ibid. "20. A purchaser who takes a conveyance from trustees, is botind to have notice of the trusts on which the trustees hold. Ibid. 21. But he is only bound to have notice of the trusts to the extent that they appear upon the title papers. Ibid. 22. F B devised an undivided moiety of certain lands and mills to J B, ■»ho sells to P all his interest in the devise made to him by E B in said lands and mills, for which, to the extent of his interest therein as devised to him by F B, P is to pay him $1,000 ; and as soon as P pays the purchase "money, J B is to make P a good and sufficient conveyance for his interest in said land and mills, as devised as aforesaid. This is not a contract of i^assard. Price v. Browning, 4 Grat. 68. 23. There being an after-born child, and the widow's dower being une- qually assigned in other lands, and suit brought for the child's portion, and to have the widow's dower reassigned, the purchaser may injoin the col- leqtion of the purchase money, until the extent of the incumbrances are ascertained. Ibid. 24. Though a purchaser of land has obtained the legal title, and had no notice that there was purchase money due to a previous vendor, yet if his vendor had not the legal title, when he purchased, the land is liable for the purchase money due to the previous vendor. Barn's ex' or et als v. Camp- bell, 4 Grat. 125. 406 VENDOR AND PDECHASER. 25. A court of equity will not interfere to give l-elief to a purchaser under a decree of a court having jurisdiction of the subject, or to his sureties, for errors in the decree, or the proceedings under it, -where the re- port of the commissioner has been confirmed. Worsham, v. Hardaway^ adm'r., 5 Grat. 60. ,._ 26. Land on which an annuity is charged, having been sold pending a suit to recover the arrears of the annuity, it will be directed to be sold to satisfy the arrears of the annuity, without noticing the pendente lite pur- chaser. Philips et als v. Williams, dec, 5 Grat. 259. 27. A purchaser of land on which there is an incumbrance, who gives a new bond to a remote assignee, and takes in and cancels the old one, will not be entitled to set-off the incumbrance, especially if he had notice of the incumbrance at the time of giving the new bond. Washington v. Pollard, 5 Grat. 432. Same v. Turpin. Id. 28. A tenement under lease is sold, and the vendor is to receive the rent as a part of the purchase money. This is a sale subject to the lease, and the vendor's lien is not thereby waived. Kyle's v. Taii's adm'r., 6 Grat. 44. 29. Upon a bill to enforce a vendor's lien against a second purchaser, he sets up the defence of purchaser without notice. The conveyances are pro- duced, but there is no proof of payment of the purchase money ; though it does not seem to have been questioned in the court below. There is' no positive proof of notice, but the facts render it probable there was notice. The lien was enforced. Ibid. 30. Upon a bill to enforce the vendor's lien, the decree should give a day to the defendant to redeem the property, by paying the amount charged upon it. Ibid. 31. As a general rule, the decree in such case should direct a sale on a reasonable credit. Ibid. 32. A deed for land containing a description of the land, and the amount and time of the payment of the purchase money, and signed by the ven- dor, but never delivered, is a sufficient memorandum in writing of the con- tract, to satisfy the statute of frauds and perjuries. Bowles v. Woodson, 6 ■ Grat. 78. 33. The application for a specific execution of a contract is addressed to the sound discretion of the court. He who asks it must have shown him- self prompt and willing to comply with the contract on his part, and the prayer will not be granted if it would be inequitable towards the other party. Ibid. 34. Upon a contract for tlie sale of land, the vendee pays a part of the purchase money, and fails to comply further, though required to do so bj the vendor, who, on such failure, disclaims the contract, but refuses to pay back the purchase money paid. Sis years after the vendee seeks to enforce VENDOR AND PURCHASER. 407 the contract. This is refused, but he is entitled to have the money ho has paid, refunded to him. Ibid. 35. Two tracts of land are sold together. The purchaser sells them separately, being still indebted for a part of the purchase money, which 'is known to both of his vendees. The tract last sold must be first applied to the payment of the purchase money due to the original vendor. Alfoi-d v. Helms, 6 Gi-at. 90. 36. A purchaser of land for an aggregate sum, without reference to any specific .quantity, haviiig gotten all the land for which the parties supposed they were contracting, is not entitled to any abatement from the purchase money, because the conveyance to him, and the patent under which he de- rives title embraces other land held by a thipd person under a better title. Slafford V. White, 6 Grat. 93. 37. A vendor is entitled to relief on account of the fraudulent conoeal- me;it of facts by a purchaser. But under the circumstances, the proper mode of relief is by compensation for the injury, and not a recission of the contract. Armistead v. Hundley, 7 Grat. 52. 38. A trustee to sell, selling such property and such title only as is vested in him, according to the terms prescribed, and without warranty or fraud, incurs no responsibility to the purchaser. Sutton v. Sutton, 7, Grat. 234. S9. The object of the trust being to sell for what the property will bring, and there being no warranty by the grantor in the deed, of either title or quantity, the purchaser is not entitled to relief for a mistake in the estima- ted quantity of the land. Ibid. 40. A mistake in respect to the title to land, is no ground of relief to a purcliaser, when he purchases the land without any agreement, express or implied, for a conveyance with warranty of title. Ibid. 41. There is a sale of land and a conveyance with general warranty, and the vendee assigns bonds of a third person in payment of the purchase money. The title to a part of the land being clearly defective, the vendee may enjoin the vendor from collecting so much of the bonds as will com- pensate him for the land, to which the title is defective. Clark v. Sard- grove, &c., 1 Grat. 399. 42. The vendee is entitled to compensation according to the relative value of the land to which a good title cannot be made. Ibid. 43. The vendor should be directed to perfect the title by a day specified by the court ; and if he fails to do so, a commissioner should be directed to ascertain the relative value of the part of the tract to which the title is de- fective. Ibid. 44. Though a vendee of land has abandoned possession for a technical 408 VENDOR AND PDRCHASEK. defect of the title, yet upon a bill to enjoin the collection of the purchase money, if the vendor can make a good title at the time of the decree, the vendee is bound to take it. Mays v. Sivope, 8 Grat. 46. 45. Where the charge upon land for the payment of debts is general, the purchaser from the executor is not bOund to see to the application of the purchase money. Meek's adm'r, dkc. v. Thompson ei als., 8 Grat. 134. 46. In such case, if the sale vras necessary at the time it vras made, and it vras fairly made, and the purchase money was paid, the failure of the executors to account for and pay the proceeds to the creditors of the estatci vrill not impair the title of the vendee. Ibid. 47. A vendor of land retains the title in accordance vrith the contract. He has a lien on the land for the purchase money, as against creditors and incumbrancers of the purchaser ; and this, though the purchaser has sub- sequently executed a deed on other property to secure the purchase money. Lewis et als. v. Caperion's ex'or et als., 8 Grat. 148. 48. A sells and conveys land to M, and takes bonds for the purchase money, retaining the vendor's lien, one of which bonds he assigns to R, M sells a part of the land to C, and before he conveys, it is agreed between M, C, and R, that C shall execute his bond to R in liea of the bojid of M assigned to K by A, and that R shall retain his lien on the land. Before M conveys to C, C by contract in writing, sells the land to M W, who pays a part of the purchase money to C, without notice of R's lien. There is a conveyance by M to C, but no conveyance by C to M W. R files his bill to subject the land to the satisfaction of his debt. Held : Ist. That R had a lien upon the land in the possession of C, as such was the intention of the parties. 2d. But M W having been permitted to take possession of the property, to hold it for a time, and make payments for it without notice, his equity shall be preferred to that of R, and the land shall only be liable to the ex- tent of the purchase money unpaid at the time M W received notice of R's lien. 3d. Qu^EE : If R would have had a lien upon the land in the hands of C, in the absence of evidence that such was the intention of the parties? Cox, die. V. Eomine, 9 Grat. 27. 49. L buys land of D and T and executes to each, bonds for his share of the purchase money. The contract is afterwards rescinded, but before this is done D assigns one of the bonds executed to him. L is entitled to re- cover from D the amount of the bond ; but D being liable as assignor of that bond, L is not to collect the amount until he shall have paid off the judgment upon the bond, or D is otherwise released from his liability as assignor. Drake v. Lyons, 9 Grat. 54. 50. In a contract for the sale of land by the acre, the purchaser will not VENDOR AND PURCHASER. 409 be relieved in equity on the ground of a mutual mistake as to the bounda- ries of the land, unless the mistake is fully and clearly made out. Lea's e£or V. Uidson, 9 Grat. 277, 51. A vendor retaining the title, retains a lien upon the land for the pur- chase money in the hands of a second purchaser. Stuart'a ex'ors v. Abbott et als., 9 Grat. 252. 52. The vendee being insolvent, a contract between one of the executors of the vendor and the second purchaser, which is doubtful in its import, will not be construed into an agreement to release the lien upon the land. Ibid. 53. If one of the executors does not contract to release the lien, it being the only security for the debt, it will not be enforced in a court of equity against the executors. Ibid. 54. Pending a bill for an injunction to a judgment, and for the rescision of a contract for the purchase of land on the ground of an incumbrance and defect of title, vendor removes the incumbrance and procures the title. The injunction is properly dissolved, but without damages, and with costs to the plaintifi". Young's adm'r and Bowyer v. McClung's et als., 9 Grat. 336. 55. The title having been obtained by a suit in equity, by the assignee of the purchase money in which a conveyance was decreed ; after the decree, but before the conveyance is made, a son of the vendee files a bill in another court, in which he falsely and fraudulently alleges that he had paid off the incumbrance on the land and retained the lien ; and with the fraudulent connivance of the vendor, who is insolvent, he obtains a decree for the sale of the land to satisfy his pretended lien ; and the land is sold and the sale is confirmed. Held : That the conveyance to the vendee having been made in pursuance of a contract entered into long before the commencement of the suit by the son of the vendor, and, in obedience to a decree made before the commence- ment of that suit, the deed had relation back to the date of the (iontract, or at least to the date of the decree directing it ; and therefore, the decree and sale in the son's suit, is inoperative against the title of the vendee, and give him no equity for an injunction and rescision of the contract. Ibid. 56. The decree in the son's suit may and must, if necessary for the pro- tection of the vendor and his assignee, be held to be wholly inoperative as to them. Ibid. 57. The purchaser under the decree in the son's suit having been cogni- zant of the proceedings in the suits of the vendee to enjoin the purchase money, and of the assignee to procure the titles' and being in fact bound as surety for that purchase money, and having purchased and permitted the sale to be confirmed without objection, is not entitled to be relieved from 410 VENDOR AND PURCHASER. his purchase, and from paying his purchase money, though he acquires no valid title to the land, purchased by him. Ibid, 58. Though the purchaser may come into equity to enjoin a judgment for defect of title, and though the title is afterwards procured, he will be entitled to his costs ; yet if there was another suit in which he might have had the relief by petition or supplemental bill, he will not be allowed his costs. Ihid. 59. A vendee of land being entitled to come into equity to enjoin a judg- ment recovered by an assignee of a bond given for the purchase money on the ground of difficulties in the title, though the title is decreed to him in the suit, he is entitled to set up in equity offsets which he held against the vendor prior to the assignment, and he was not bound to plead them at law. Bagsdale v. Hagy ei als-, 9 Grat. 409. 60. Pending a bill of injunction to a judgment, and for the rescision of a contract for the purchase of land on the ground of an incumbrance and defect of title, the vendor removes the incumbrance and procures the title. The injunction is properly dissolved but without damages, and with costs to the plaintiff. Reeoes v. Dickey, 10 Grat. 138. 61. A party having made a purchase of three-sixteenths of a tract of land, upon condition that a certain ore upon it proved to be good silver ore, afterwards sold one-sixteenth of the land absolutely, the purchaser know- ing the terms of his purchase, The sale is a valid sale. Ibid. 62. The state of the vendor's title being known to the purchaser, and the legal title being in fact outstanding, the vendor is entitled to a reasonable time in which to perfect the title. Ibid. 63. B, for himself and others, sells part of a tract of land to J, who executes to B his bonds for the purchase money. The other parties refuse to confirm the contract, but sell their interest in the whole tract to J. B having recovered judgments upon the bonds, J is entitled to have the judg- ments enjoined, and to be relieved to the extent of the injury he has sus- tained by the feilure of B to procure the others to execute the contract. Joynes et als v. Brock, 10 Grat. 211. 64. Land sold is to be laid off in one, two or three tracts as the purcha- ser may choose. The vendor is not in default for failing to convey until the purchaser has made his selection, and has caused the land to be sur- veyed. Purcell V. McCleary et al., 10 Grat. 246. 65. There being a latent ambiguity in the contract of sale which can only be removed by a survey, it is error to decree a rescision of the con- tract until a survey is made, and it is thus ascertained whether the vendor can comply with his contract. Ibid. 66. W being the owner of a lot in Danville, made a verbal agreement with S for the sale of it to him. S sold to A, who received a conveyance for VENDOR AND PURCHASER. 411 the lot from "W, with general warranty, and executed his bonds to S for a balance of the purchase money. At the time of the sale, the lot was made more valuable by a change in a street, which street was afterwards re- tured to its original location by the town authorities. S having made no representations on the subject to A, having been guilty of no fraud, and having made no warranty of title, is not liable to A for the damage he has sustained, and A cannot enjoin the collection of the purchase money. Price's ex'ors v. Ayres, 10 Grat. 575. 67. Where there is a joint purchase of land by two, to whom it is con- veyed, and who give their bond for the purchase money, in the absence of proof of any agreement to the contrary, they are entitled to the land in equal portions. Jarrett v. Johnson, 11 Grat. 327. 68. One of the purchasers having previously made a conditional contract for the purchase of the land, agreed in writing with the other, that if the contract was coippleted, the other should have a speciiSed part of the land ; but the contract was not completed. This agreement between the purcha- sers was then at an end, and cannot affect their rights under their joint pur- chase. Ibid. 69. In such a case of a joint purchase parol evidence is not admissible to prove an agreement between them for an unequal division of the land. Ibid. 70. In such a case the purchaser claiming to be entitled under an agree- ment between them to the largest portion of the land, files a bill for specific performance of the agreement, and for partition accordingly. Though he fails to prove the agreement, the court may go on to make par- tition, according to the legal rights of the parties. Ibid. 71. Where the contract for the sale of land is entire for a specific sum of Money, and the title to a part of the laud fails from a cause of which both vendor and vendee were ignoi-ant, it is ground for the resoision of the whole contract ; but the purchaser cannot insist upon a partial rescision. Bailey y. James, 11 Grat. 327. 72. In such a case if the purchaser declines to rescind the contract, he must pay the whole purchase money. Ibid. 73. Upon a bond to pay the purchase money of land with a provision that upon the purchaser's failure to get the legal title from a third party, the contract of sale shall be void, the purchaser having been let into posses- sion, and continuing to hold, and himself neglecting to get in the title, he shall pay interest. Ibid. -74. The vendor having but an equitable title, and only selling his interest in the property without warranty, and authorizing the purchaser to proceed to get in the legal title, it is not error to decree a specific execution of the con- ttaet at the suit of the vendor, without directing a conveyance by him, im. 412 VERDICT. VERDICT. 1. On a trial of a scire facias against bail, the function of the jury is exhausted, when it negatives the defendant's plea. Bowyer v. Hewitt, Buffner & Co., 2 Grat. 193. 2. When on such trial the farther Ending of the jury will be considered as supererogatory and be disregarded. Ibid. 3. In assumpsit the jury gave interest from a day previous to the date of the account filed with the declaration. This is not error. Dahneys v, Knapp, Preston & Co., 2 Grat. 354. 4. The jury having fixed the term of a prisoner's imprisonment at a period shorter than the law allows, it is error in the court to enter a judg- ment on the verdict for the shortest period authorized by law for the ofienoe. If such error is discovered before the discharge of the jury, they should be sent back with instructions by the court, and if they persist in finding the same verdict or are discharged before the error is found out, then the court must award a venire de novo. Nemo's case, 2 Grat. 558. 5. A verdict finds the defendant guilty of the waste as charged in the declaration, and the plaintiff waiving a recovery of the place wasted, the verdict proceeds to assess damages for particular parts of the waste charged, but does not set out the locus in quo, or find any part of the issue for the defendant. The verdict is sufficient. Dejarneite v. Allen and wife, 5 Grat. 499. 6. In an action of waste the verdict finds for the plaintiff and assesses damages, but subject to the opinion of the court whether, upon certain facts stated, the plaintiff can maintain the action. This is a general ver- dict. Ibid. 7. The indictment charges the burning of the dwelling house of E on the 11th day of February 1850. The verdict is "guilty of arson in the day time" on the 11th of February 1850. This is sufficiently certain. Curran's case, 7 Grat. 619. 8. In ejectment the jury sets out the wills of the grandfather and father ; and if the son, who is dead, took under the father's will, they find for the plaintiff. If he took under the will of the grandfather, they find for the defendants. The verdict is sufficiently certain ; and submits the simple question upon the construction of the wills to the court. Callis et als v. Kemp et als., 11 Grat. 78. 9. Though in ejectment, the plaintiffs, in their declaration, claim the whole tract of land, the jury may find for them for an undivided interest in it. Id. WARRANTY. 413 WARRANTY, 1. There is no warranty of value on the sale or exchange or paying away of genuine bank notes. Edmunds v. Bigges, 1 Grat. 359. 2. It seems there is a warranty of the genuineness of a note sold or paid away. Ibid. 3. On the sale of land under the tax laws, the Commonwealth does not warrant either the title or description of the lands sold, but the rule-ca«ea< emptor applies to such sales. Hoge v. Currin, 3 Grat. 201. 4. On the warranty of soundness of an animal, it is for the jury to say what is embraced therein ; and on that question the qualities and uses for which the animal is purchased and sold, may be referred to as explaiuing what was intended to be included in the warranty. Thornton v. Thomson a als., 4 Grat. 121. 5. On a warranty of soundness of an animal sold, the measure of damages is the difference between the value of the animal sound as war- ranted, and his value at the time of the sale in the condition it really was ; and the price at which it was sold is the proper evidence of value at that time, if sound, to the extent of the warranty. And the rule is the same whether the purchaser offers to return the animal or not. Ibid. 6. The heirs of a wife are not barred from claiming the land to which she was entitled by the collateral warranty of the husband who was their father, in his deeds conveying it to the purchaser's from him. Norman's ex'x V. Cunningham and wife, 5 Grat. 63. 7. The act, 1 Rev. Code, ch. 99, ^ 21, p. 368, applies to cases of real assets descending from the warranting ancestor, and not to personal assets, or assets whether real or personal, accruing from him by devise or bequest. Ibid. 8. n sells his claim to a tract of land, and warrants the title as received from his vendor, but disclaims warranting that that title is good. Upon the eviction of his vendee by a party claiming under another title, H is not responsible to his vendee. Wynn v. Harman's devisees, 5 Grat. 157. 9. Upon a contract for the hire of a slave, even an express warranty of .fitness or suitableness, though it might be understood to cover essential ,-,physical or mental defects, yet it would not extend to the absence of moral qualities, or of experience in a particular business, unless specified. Howell, dsc., v. Cowles, 6 Grat 393. sl'i 10. A bond given for the hire of a slave, says : " to work at boat busi- ness." This is no warranty of his fitness or experience in that busi- ness. Id. 11. Case is the proper remedy for the breach of an express warranty of 414 "WASTE. soundness of a slave, or other personal chattel. Trice v. Cochran, 8 Grat. 442. 12. In case for the breach of a warranty of soundness of a personal chattel, it is not necessary to allege the defendant's knowledge of the un- soundness ; and if it is alleged, it is not necessary to prove it. Ibid. 13. There is a devise to I,' with a limitation over, upon his dying without issue at his death, to his brother R, if he should survive him or his repre- sentatives, and R dies in the life-time of I. I sells and conveys the land to A ; and R, though he does not convey the land, is a party to the deed, and I and R covenant as follows : That the said I, for himself and his heirs, and the said R, as contingent devisee under the will of Col. I, (by whom the said land was devised to I), do hereby- covenant and agree to and with the said A, that they will warrant and defend the fee simple estate to said land, to him and his heirs forever, against the claim of themselves and their heirs, and the claim of any person claiming under them by virtue of the will aforesaid, and to relinquish and fully confirm to said A all the right they or their heirs now have or may hereafter have to said land, or any part thereof, to him and his heirs, free from the claim of the said I and R, and their heirs, and of all other persons in the whole world. Held: 1st. That this covenant of R extends to the claim of his children to the land, though they claim not as his heirs, but as devisees under the will of Col. I. 2d. That the covenant of R is a covenant running with the land, and a pur- chaser claiming under A a part thereof by a regular chain of conveyances, is entitled to the benefit of said covenant for his indemnity against the claim of the heirs of R. Dickinson v. Hoomes' adm'r et als., 8 Grat. 353. WASTE. 1. The purchaser at a sheriff's sale of an insolvent husband's interest in his wife's estate is a tenant for life, and m.ay be sued in an action of waste by the husband and wife. Dejarnetle v. Allen andtoife, 5 Grat. 499. 2. In an action of waste by husband and wife against the alienee of the husband's interest in his wife's land, the declaration alleges that the rever- sion in fee is in the wife. This is in efi^ect to allege that the reversion in fee is in the husband and wife, and if it is not good on demurrer, is cured by the verdict. Ihid. 3. In an action of waste the verdict finds the defendant guilty of the waste as charged in the declaration, and the plaintiff waiving a recovery of the place wasted, the verdict proceeds to assess damages for particular parts of the waste charged, but does not set out the locus in quo, or find any part of the issue for the defendant. This verdict is sufBcient. Ihid. WILLS. 415 • 4. In an action of waste the verdict finds for the plaintiff and assesses damages, but subject to the opinion of the court whether, upon certain facts stated, the plaintiff can maintain the action. This is a general ver- dict. Ibid. WILLS. 1. Execution and Probat of. I o nr 2. Construction of. | 3. Nuncupative. EXECUTION AND PROBAT OF. 1. A paper intended to be executed as a written will, but not so execu- ted, may be a good nuncupative will, if made under the circumstances and proved by the number of witnesses, prescribed by the statute. Phcebe V. Boggess, 1 Grat. 129. 2. An olograph will, with the name of the testator in the commence- ment, but not subscribed, with a blank left for the date and containing an attestation clause, but without witnesses is not well executed. Waller V. WalUr, 1 Grat. 454. 3. The finality of the testamentary intent must be ascertained from the face of the paper and extrinsic evidence is not admissible to prove or dis- prove it. Ihid. 4. The signing of a will to be a sufficient signing under the statute, must be such as upon the face and from the frame of the instrument, ap- pears to be intended to give it authenticity. Ibid. 5. A person having made a will, which was in his possession and which after his death could not be found, it is to be presumed he destroyed it him- self. Jppling y. Hades, 1 Grat. 286. 6. Proof that a subsequent will was stolen from the testator without proof of its contents, is no revocation of a former will. Hylton v. Hylton, 1 Grat. 161. 7. An admission on the record by the contestant of a will of its due execution, does not dispense with the proof. Ihid. 8. Upon a bill to contest a will admitted to probat, when that question is decided, no further proceedings can be had in that case. Coalter's ex'or v. Bryan and wife et als., 1 Grat. 18, ' 9. A marriage settlement gives a power to the wife to dispose of the set- tled estate by gift or devise under hand and seal, attested by two witnesses. A scroll annexed to her name, though not recognized in the body of the will is a sufficiMit sealing. Pollock and mfe r. Olassell, 2 Grat. 439. 416 WILLS. 10. Parol testimony is admissible to show that the scroll was put upon the paper by the direction of the testatrix, as a seal. Ihid. 11. It is not necessary that the attestation clause shall state that the paper was duly signed and sealed by the testatrix. Ibid. 12. If a witness, when requested to attest a will adopts his signature, already on the paper, it is a valid attestation. / hid. * 13. A testamentary paper duly executed, according to a power recogni- zing another paper not duly executed, will constitute the paper recognized, a valid testamentary paper. Ihid. 14. It is not necessary that the paper recognized should be incorporated into the paper recognizing it. Ihid. 15. Quaere : Whether an assignment under the hand and seal of the as- signor, but not delivered and intended to operate only on the death of the assignor may be valid as a testamentary paper. Ibid. 16. The sentence of a court of probat fairly obtained, and pronounced upon the merits, by which a paper propounded as a will by the nominated executor is rejected, in a proceeding in which some of the next of kin in- terested to defeat it are parties defendants, is conclusively binding upon a legatee in said paper, though he was an infant at the time, and no party to the proceeding. Wills v. Spraggiiis, 3 Grat. 555. 17. A bequest to a corporation of its own stock is valid. Bivanna Nav. Co. v. Dawsons, 3 Grat. 19. 18. A devise or bequest, whether of real or personal estate, to an attest- ing witness to a will, without whose testimony the will may not be other- wise proved, is void. Croft et ah. v. Croft ex'or, dsc. 4 Grat. 103. 19. Slaves emancipated by a will may propound it for probat. Ben Mer- cer et ah. V. Kelsoe's adm'r et ah., 4 Grat. 106. 20. What nervousness of temperament and eccentricity of disposition, manners and habits is consistent with a sound disposing mind and memo- ry. Ibid. 21. A paper writing, though in the hand-writing of the deceased, and signed by him, held not to be his will. Hooker v. Hockei- et ah., 4 Grat. 277. 22. It is not necessary that the subscribing witnesses to a will should see the testator sign, or that he should acknowledge to them the subscription of his name to be his signature, or even that the instrument is his will. It is enough that he should acknowledge, in their presence, that the act is his, with a knowledge of the contents of the instrument, and with the design that it should be a testamentary disposition of his property. Bosser, &c,, r. Franklin, 6 Grat. 1. I I !! Missing Page 418 WILLS. the other attesting witness, or any other person. The paper is not bo proved as to be admitted to probat. Johnson v. Dunn, 6 Grat. 625. 32. A -will which disposes of both real and personal estate is attested by but one witness ; and, on proof by that witness, is admitted to probat gen- erally ; and no proof is brought within seven years to set aside the will. After seven years from the probat it is a valid will of lands, as well as personal estate. Parker's ex'ors v. Brown's ex'or ei als., 6 Grat. 554. 33. In a case of probat the deposition of an aged witness, taken de bene esse, will be allowed to be read, upon proof, either by witnesses or his own affidavit, of his inability to attend the court. NucJcols' adm'r v. Jones, 8 Grat. 267. 34. A witness called to prove the hand-writing of a paper offered for probat may be impeached by proof of what she has said about that papM at another time. But neither her capacity to judge of the hand-writing, nor her credit, is to be impeached by what she may have said about some other paper. Ibid. 35. Qd^bke : Whether an attestation of a will out of the room in which the testator is lying, and out of his sight, but in a case in which the testa- tor was able and might have placed himself in a position to see the wit- nesses when they signed the paper, is a valid attestation? A court of four judges equally divided upon the question. Moore v. Moore's ea^or et alsi, 8 Grat. 307. 36. In a case of probat, a witness unable to attend the court is examined as to the hand-writing of a testamentary paper which had been shewn to him by the propounder of the will, but which was not before him when he gave his deposition. The testimony is admissible, its weight depending upon the certainty of the proof that the paper propounded for probat is the paper that was shewn to the witness. Nuchols' adm'r v. Jones, 8 Grat. 267. 37. A testator not laboring under a total or temporary deprivation of reason, is of legal capacity to make a valid disposition of his property, if he is capable of recollecting the property he is about to dispose oi, the manner of distributing it, and the objects of his bounty. Greer v. Cheers, 9 Grat. 330. 38. Although the testator may labor under no legal incapacity to do a valid act, yet if the whole transaction taken together with all the facts, mental weakness being one of them, shows that the particular act was not attended with the consent of his will and understanding, it is void. IbiA, 39. Held : That under the circumstances, the recognition of their attes- tation by witnesses to a will, to the testator, was a substantial subscribing of their names as witnesses in his presence. Sturdivant et als. v. Bircheit, 10 Grat. 67. WILLS. 419 40. From -what circumstances it may be inferred that the name of a tes- tator was written in his presence, and before the acknowledgment of the paper as his will. Nock v. Nock's ex'ors, 10 Grat. 106. ' 41. The witnesses to a will subscribe their names in another room from the testator, who, though lying on a bed, is able to walk about ; but the witnesses are directly within the range of his vision, so that he can see all their persons except the forearm and writing hand, these being hi ' from him by the body of the witness whilst he is subscribing his name. HelD; The witnesses subscribed their names in the presence of the testator, within the meaning of the statute. Ibid. 42. The saving in the act of 1819, 1 Rev. Code, ch. 114, ? 13, p. 378, in relation to wills, in favor of persons out of the State, is not repealed by the act of March 8th, 1826, Sup. Rev. Code, p. 260, in relation to the limi- tation of actions. Schuliz v. Schuliz et als., 10 Grat. 358. ' 43. A devisee of a will may propound it for probat ; and he then repre- sents the will and all persons interested in it, though such persons may not be sui juris ; and they are bound by the judgment of the court in the case. And the same is the case if the executor propounds the will. ihid. 44. When a paper is propounded for probat in the proper court, by a devisee 'therein, and there is a sentence of the court fairly obtained and pronounced on the merits, excluding the paper from probat, such sentence is conclu- sively binding upon all claiming under the paper. Ibid. : 45. What is a sentence on the merits of the application? Ibid. 46. The jurisdiction of a court of probat is not exhausted by the admis- sion to probat of the testamentary papers passed upon at one time. If a Modioil to the will admitted to probat be afterwards found, or a will supple- mental to the first, or one which may consist with the first and has no clause of revocation, or a will without a clause of revocation, which, though it conflicts in part, may consist in part; in all these cases, the two papers ■^constitute the testator's will, and the second may be admitted to probat tipon a second motion after the first has been admitted. Ibid. 47. So, if the second paper has a clause of revocation, or conflicts wholly with the first ; or from the scheme of the second will, it is apparent that it is intended as a complete disposition of the testator's property, the court of probat has jurisdiction to admit such second paper, though the probat of the first paper is not annulled, but remains in full force. Ibid. »:, 48. The county court having rejected a paper offered for probat on the 'merits ; and the circuit court having affirmed the sentence, that sentence is still a judgment on the merits against the paper, though the circuit court may have proceeded on the ground that the county court had no jurisdic- tion of the case. Ibid. 420 WlLiiiiS. 49. If the circuit court intended to decide on the groupd of a want of jurisdiction in the county court, it should have reversed the sentence of that court, and entered a judgment over-ruling the motion to admit the paper on the ground of the want of jurisdiction. Ibid. 50. What does not constitute incapacity in a testator. Parramore v. Taylor, 11 Grat, 220. 51. What is not an improper influence which will invalidate a will. Ibid. 52. The Code, ch. 122, g 4, p. 516, in relation to the attestation of wills, does not require that the witnesses shall subscribe their names in the presence of each other. Ibid. 53. T subscribes his name to his will in the presence of C, and requests C to attest it, who does so. B is then called into the room, and T again acknowledges the paper as his will, and requests B to attest it, who does so, C being present when T acknowledges the paper to B, but not subscri- bing it, and not recognizing his subscription at that time ; the whole, how- ever, being done within a few minutes. The will is duly attested. Ibid. • 54. A will appearing upon its face to have been made by a married woman, if it has been regularly admitted to probat in the proper court, ite validity cannot be questioned in a collateral suit. Robinsons v. Allen et als., 11 Grat. 785. CONSTRUCTION OF. 1. A testator gives an express estate in fee, in real and personal pro- perty to each of his five sons, and then directs that, " if any or either of his five sons should die without issue living at the time of his death, all the estate, real or personal, of every such child, shall be divided equally be- tween the survivors or their representative, according to the principles of the law of descents." On the death of one of the sons without issue, the estate passes to the surviving children and to the descendants of such as are dead, the latter taking as purchasers under the will, the share which the parent would have taken, if alike. Dickinson v. JSoomes, 1 Grat. 301. 2. Testatrix says, " I will that all my negroes be hired out until all my just debts are paid, as well as legacies hereinafter devised shall be saj^fr fied." In a subsequent clause, she says, " I will and devise that all my negroes be liberated after the above items in this will be satisfied." This will operates to emancipate not only her slaves in possession, but her por- tion of slaves held jointly with others, subject to a life estate in a third person. Binford's adm'r v. Eobin, 1 Grat. 327. 3. Child to whom parent had given slaves in his lifetime, required under WILLS. 421 tfte construction of his will to account for them and their increase, as of their value at the time of the division of the estate. Eean v. Welsh, 1 Grat. 403. 4. If any of the slaves have died, the loss to be borne by the estate. If £fny have been sold their value at the time of the sale to be taken. Ibid. 5. A testator says : " In the utmost confidence in my wife, I leave to her all my worldly goods, to sell or keep for distribution among our dear child- ren, as she may think proper. My whole estate real and personal are left in fee simple to her ; only requesting her to make an equal distribution amongst our heirs ; and desiring her to do for some of my faithful servants fl^hatever she may think will most conduce to their welfare, without regard to the interest of my heirs. Of course I wish first of all that all my debts sTiall be paid." Held : 1st. The widow is invested, subject to the payment of debts, with the legal title to the whole estate, real and personal. 2nd. She takes the beneficial interest in the estate for life. 3rd. The children take a vested remainder in fee, in the estate, to commence, in possession at the widow's death, or earlier at her election. 4th. The widow may make advance- ments to the children at her discretion, so that they ultimately receive an equal share of the estate. 5th. She may employ a reasonable portion of ■ the estate for the benefit of the slaves. 6th. She has power to sell any portion of the estate, real or personal, for payment of debts, or more con- venient enjoyment, advancement or division. Harrisons v. Harrison^ adm'x,. 2 Grat. 1. ^ 6. G. L. by her will, emancipates certain of her slaves, and then says : " All the rest of my slaves I lend to my brother and sister equally during (heir lives and the life of the survivor ; and on the death of the survivor, it is my desire that the said slaves be set free." The slaves alive at her tfeath, and their descendants born during the lives of the brother and sister, and the life of the survivor, and those born after the death of the survivor, are emancipated by the will. Lucy ei als- v. Ohemindnt's adm'r, 2 Grat. 36. 7. A testator bequeaths a female slave to his daughter, " not as a bound slave, but to be under her care and tuition, to receive wages for her labor. And if she should have children, for them to come under the same regula- tion after they pay for their raising. But their labor to be equally divided amongst all my children, if they choose to employ them." 1st. The slaves are not emancipated. 2nd. The bequest to the daughter is Void. 3rd. The testa- tor is intestate as to these slaves. Wynn et als. v. Carroll et als., 2 Grat. 227. 8. The language of a will is : "I give and bequeath to my loving wife tie land her father gave me, being, &c. I also give unto my said wife the Mowing slaves, to wit : Winney, &o., during her natural life, to be dis- 422 WILLS. posed of at her own discretion, either by deed or will, among my children." The wife has a fee in the land. Purcell and wife et ah. v. Wilson, 4 Grat. 16. 9. Every part of a will may be looked to to ascertain the intention of the testator in a particular devise, and thus limit the phrase "dying without issue" to a dying without issue living at the death of the devisee. Lucas and wife v. Duffield, 6 Grat. 456. 10. A executed a bond for a certain sum to aid in paying the debts of 0. college, upon condition that like pledges to the whole amount of the col- lege debt were obtained, and that this fact should be announced by a com- mittee, of which he was one. He dies before the announcement by the committee, and by his will says he is bound and willing to pay his bond, provided the pledges given shall appear to be indubitably valid, and the whole amount pledged shall first be paid. The will does not contemplate the payment of the bond for any other object than the discharge of the college debts, but adds another condition to the payment, and does not give any additional force to the bond. Columbian College v. Clapton's adm'r, &e., 7 Grat. 168. 11. The provision of the will is not a bequest of the amount of the bond to the college. Ibid. 12. A. by his will, says : If C. college should fail, I will that the sum pledged to that, shall be given to N. institution. This is not a request by implication to C. college. Ibid. 13. A testator by one clause of his will says, I loan to my daughter M a negro girl C and 200 dollars in cash, which is her full share of my estate. By a codicil in his will he says, I loan to my daughter M 300 dollars in lieu of a negro girl named C which I loaned her in my will. M takes the abso- lute interest in the legacy. Parker and wife v. WasUy's ex'or et ais., 9 Grat. 477. m 14. Every part of a will is to be considered in ascertaining the construc- tion of one of the legacies in it. Ibid. ' 15. A devise of a plantation on which testator resided, held to carry with it a coal property which was on the same tract of land, but which was leased separately at the time of making the will. Babney et als. v. Cot- trell's adrn'x et als., 9 Grat. 572. 16. A bequest of " all the money," held to include money deposited ^n a savings institution, but not debts due the testator. Ibid. c, 17. D and A have each five children, and E is the child of A. Testator regards R with great favor, and gives him a farm and a legacy of $2000. Testator then says, I bequeath to the children of A and D and to R all the funds remaining after every just claim against my estate has been satisfied, NUNCUPATIVE WILLS.— WITNESS. 423 to be, equally divided between them. The fund is to be divided into tea parts, one of which is to be given to each of the children of A and D, thus giving to R but one-tenth of the fund. McMaster v. McMaster's ex'ors, 10 Grat. 275. , 18. In construing a provision in a will, the whole instrument is to be looked to, to ascertain the intention of the testator. Cheshire v. Pureell, 11 Grat. 771. 19. In construing a will, if the language be popular and ordinary, its meaning is to be construed according to its usual acceptations; if technical legal terms are used, they are to be construed in the sense which the law affixes to them. Robinson v. Allen et als., 11 Grat. 785. NUNCUPATIVE WILLS. 1. A paper intended to be executed as a written will, but not so execu- ted, may be a good nuncupative will, if made under the circumstances and proved by the number of witnesses prescribed by the statute. Phoebe v. ^Tloggess, 1 Grat. 129. 2. The word "habitation" in the act 1 Rev. Code oh. 104, §7, p. 377, in relation to nuncupative wills, means " dwelling house." Nowlin's adm'r et als. V. Scott, 10 Grat. 64. 3. A testamentary paper signed and acknowledged in the presence of witnesses, who are requested to attest it, and attested by them out of the presence of the testatrix, so that it is not good as a written will, cannot be set up as a nuncupative will. Seese v. Savjthorn, 10 Grat. 548. ^ 4. A nuncupative will to be valid must be made in the last sickness of the testator, when he is in such extremity that he has not the ability and opportunity to make a written will. Ibid. Wl-t ' WITNESS, 1. An executor claiming no interest as legatee or devisee under the will, and not being liable for costs, is a competent witness to sustain the validi- ty of the will, under which he acts. Ooalier's ex'or et als. v. Bryan and leife etal s., 1 Grat. 18. "1, 2. The grantor in a deed of trust for the benefit of his creditors is a competent witness for the claimant under the deed to prove that the proper- ty levied on by an officer under an execution against the grantor is tho same conveyed in the deed. Kevan v. Branch, 1 Grat. 274. 424 WITNESS. 3. In an action on an indemnifying bond, at the relation of parties claim- ing under a deed of trust from the debtor in the execution, upon the levy of which the bond was taken, the grantor in the deed is a competent wit^ ness for the plaintiffs. Patteson v. Ford, 2 Grat. 18. 4. A guarantor without consideration of a bond is a competent witness for the obligors to prove that it was given on an usurious consideration. Caldwell's ex'or v. MoCortney et als., 2 Grat. 187. 5. Widow of a testator is a competent witness, between the legatees, in relation to that part of the estate in which she is not interested. Dickin- son V. Dickinson's adm'r et ah., 2 Grat. 493. 6. On the ti'ial of a convict from the penitentiary for felony, a convict confinfed there for felony, is a competent witness for the prosecution. John- son's case, 2 Grat. 581. 7. A drawer of a bill for whose accommodation it is accepted is not a competent witness for the acceptors, in an action thereon by the holder against them. Ford v. Nichols, 3 Grat. 88, 8. No person is incapacitated from being a witness on account of hia re- ligious belief. Perry's case, 3 Grat. 632. 9. Persons having less than one-fourth of negro blood are competent witnesses on the trial of a white man. Dean's case, 4 Grat. 54l. 10. The fact that a witness is of negro descent, if not near enough, to exclude him, is not competent evidence to impeach his credibility. Ibid. 11. The interest which will render a witness incompetent is an interest not in the question, but in the result of the suit. Masters v. Varnet's es^orS; 5 Grat. 168. 12. Though it is the interest of the witness called to testify in a writ of right, that the boundaries of the land should be fixed as the party caUT ing him claims, he is a competent witness. Ibid. 13. On a prosecution for a felony, the counsel for the prisoner will not be allowed on the cross-examination of a witness for the Commonwealth, to ask her " whether she is not generally reported in the community to be a woman of unchaste habits, or whether she was not or had not been un- chaste." Howell's case, 5 Grat. 664. 14. In such a case the counsel for the prisoner having asked the witness if she was married, will not be allowed to ask her how old her youngest child was, or whether it was not a bastard. Ibid. 15. In such case counsel for the prisoner will not be allowed to ask the witness if she had not been found with stolen goods in her possessiofl. Ibid. WITNESS. 425 16. Witness being asked, " if whiist she lived with B, she was not ac- cused of stealing or taking things not her own ; and whether, when she left there, she was not followed and the things taken from her ?" it was proper for the court to inform her that she was not bound to answer the question. Ibid. 17. Although as a general rule, it is imprbpeif, after a cause has been submitted to the jury, to introduce new testimony or examine new wit- nesses ; yet for good cause shown, it may be done. In such cases the court must exercise a sound discretion ; and when the circumstances of the case make it necessary, either party should be permitted to introduce new testi- mony or new witnesses. Ibid. 18. How a witness for the Commonwealth may be re-examined. Ibid. 19. A creditor having paid his debt by a sale of land under a decree against the executor, and the devisees having recovered the land from the purchaser, the creditor is a competent witness for the purchaser to pro^e his debt was just and the amount thereof, against the devisees. Rudgin v. Eudgin's ex'ors et als., 6 Grat. 320. 20. It is no objection to the competency of a witness that he heard the other witnesses examined, though the witnesses who were sworn were di- rected to leave the court room. Hopper, Stiers & Lemmons case, 6 Grat. 684. 21. A witness will in no case be allowed on the trial of a white man to state what was said by a free negro. Ibid. 22. Upon the examination of a witness called to impeach another, the party was not allowed to ask what is the general character of the witness in relation to other matters, as well as to his veracity. Uhl et als. case, 6 Grat. 706. • 23. A record of the conviction of a witness for petty larceny in another State, is not competent evidence to impeach the veracity of the witness. Ibid. 24. The attorney for the Commonwealth allowed to recall a witness in a criminal case, and ask him a question, after the attorney had made his opening argument and one of thp counsel for the prisoner had spoken in his defence. Armistead's case, 7 Grat. 599. 25. Although as a general rule, it is improper after a cause has been submitted to the jury to introduce new testimony or examine new wit- nesses ; yet for the good cause shown, it may be done. In such cases a court must exercise a sound discretion ; and when the circumstances of a case make it necessary, either party should be permitted to introduce new testimony or new witnesses. Livingston's case, 7 Grat. 658. 7 26. In a writ of unlawful detainer, the defendant claiming title under a 426 WITNESS. deed made to himself and another as joint tenants, that other person is not a competent witness for him to sustain his right of possession. Adams j(^ Martin, 8 Grat. 107. 27. A witness called to prove the handwriting of a paper offered for pro- bat may be impeached by proof of what she has said about that paper at another time. But neither her capacity to judge of the handwriting nor her credit is to be impeached by what she may have said about some other paper. Nuckol's adm'r v. Jones, 8 Grat. 267. 28. In a controversy between the obligor and assignee of a bond, the obligee is not a competent witness to prove usury in the bond. Wise v. Lamb, 9 Grat. 294. 29. The affidavit of a witness of his inability to attend the court, not having been objected to in the court below for want of notice, that objec- tion cannot be made in the appellate court. Taylor v. Smith, 10 Grat. 557. 30. Such affidavit taken eight days before the cause is called for trial, is sufficient to authorize his deposition which has been taken for de bene esse, to be read as evidence. Ibid. 31. Two persons being jointly indicted for the same offence, and being tried separately, one is not an incompetent witness for the other by reason of the joint indictment. Lazier' s case, 10 Grat. 708. 32. A witness for the prisoner on a trial for felony, who has given evi- dence at a former trial, is absent from the Commonwealth at the second trial. It is not competent for the prisoner to prove what the witness swore to on the first trial. Brogg's, case, 10 Grat. 722. 33. A witness is called who is objected to as being interested, and proof aliunde of his interest as introduced. He is then examined on his voir dire by the party calling him, to show that he has no interest, and this id objected to by the other party; but before he is sworn in chief, a deed is produced which shews he has no interest. If it was error to examine him on his voir dire, it was cured by the proof of his want of interest before he was sworn in chief. Harrison v. Middleton, 11 Grat. 527. 34. Slaves are bequeathed to one for life, and on his dying without heirs, over to another. In a controversy between the contingent legatee and a purchaser under the legatee for life, who was one of two executors, the other executor is a competent witness for the contingent legatee, to prove the assent of the executors to the legacy for life. Frazer's adm'r f. Bevill et als., 11 Grat. 9. 35. A husband is not a competent subscribing witness to a deed executed during the marriage, by which real estate is conveyed to his wife, either for the purpose of proving the due execution of the deed when called in WRIT OF ERROR.— WRIT OF RIGHT. 427 question, or for the purpose of having it admitted to record. Johnston and mfe\- Slater et al., 11 Grat. 321. 36. A witness may refresh his memory by reference to a paper, whether an original or a copy, and whether written by himself or another. But he must then speak from his own recollection thus refreshed. Harrison v. Mid- Melon, llGrat.527. 37. But a surveyor who made a survey from a diagram handed him by the plaintiff, and vrhich he has in court, may refer to the courses and dis- tances on the diagram, though he may not be able to remember them inde- pendently of it. The diagram is itself evidence, and he may point out on it the lines he ran. Ibid. 38. An extract or copy from his field notes taken by a surveyor is not evidence ; and he can only use it to refresh his memory, and he must then speak from his recollection. Ihid. WRIT OF ERROR. 1. A writ of error coram vobis does not lie in the court of appeals. Bad's adm'r v. Strider's adm'r., 7 Grat. 76. 2. The court of appeals has no jurisdiction to grant a writ of error in a criminal case.* Bell v. The Commonwealth, 7 Grat. 201. 3. A writ of error in a criminal cause may be awarded by the court of appeals during the term, returnable to a day in the same term ; and the cause may be heard at the same term. Lazier's case, 10 Grat. 708. 4. On a prosecution for selling ardent spiritS'tey retail, to be drank where sold, without having obtained a license to keep an ordinary, a writ of error lies for the Commonwealth to the judgment of an inferior court. Scott's case, 10 Grat. 749. See Appeals and Jueisdiction, WRIT OF RIGHT.t 1. Entry and actual possession under a grant, is not necessary to main- tain a writ of right. Taylor's devisees v, Burnsides, 1 Grat. 165. 2. On the trial of a writ of right, the tenant has a right to open and con- clude the argument before the jury. Overton's heirs v. [Davisson, 1 Grat. 211. * Jurisdiction given to Court of Appeals by Ses3. Acts, 1852, Chap. 61, § 1. t Abolished Code of Virginia, Ch. 135, § 38, p, 563. Ejectment given instead, Code Ch. 135, $ 2, p. 558. ^8 WRIT OF RIGHT. 3. A writ of right brought against a life tenant, may be revived against his heirs, though they claim the land, not under the life tenant, but a third person. And they may defend the action by shewing title in themselves, however derived. Davis et als v. Teays et als., 3 Grat. 283, 4. The act. Sup. Rev. Code, 159-'60, authorizing a defendant in an eject- liient or writ of right to set up an equitable title as a defence to the action, limits the defence to cases where the whole contract and its precise terms are manifested by plain written evidence. Tlie written contract itself must be produced to the jury, and parol evidence of its contents is inadmis- sible, though it may have been lost or destroyed. Ihid. 5. The equitable defence under this statute, is also limited to mortgages and deeds of trust, where the mortgage money has been fully paid, or the trust completely performed, or to sales where the vendee has paid all the purchase money and performed everything incumbent on him, so as to en- title him to specific execution of the contract in equity, and a conveyance of the legal title, without any condition proper in equity to be on him im- posed. It must be a sale, and not a partnership in the acquisition of the land ; and the terms of the contract must be plain. Ibid. 6. The holder of the legal estate is the proper defendant in a writ of right, though the land is held by another under a perpetual lease, the title not having passed. Carrington et als. v. Otis et als., 4 Grat. 235. 7. Under the statute, such damages may be recovered in a writ of right as might be recovered in trespass for mesne profits. And the statute of limitations may be given in evidence on the trial, and the recovery of mesne will be for five years before the writ of right brought, to the recovery of possession. Purcell and wife et als. v. Wilson, 4 Grat. 16. 8. In a writ of right there is a special verdict which finds that the par- ties claim in fee from A, the demandants by deed of trust, and the ten- ant by subsequent equitable title and possession. This is a substantial finding of the seisin of the demandants, or at least estops the tenant from denying it. CreigVs heirs v. Henson, 10 Grat. 231. 9. In a writ of right, the failure to file a plea is error not cured by a ver- dict for the tenant. Rowans v. Givens, 10 Grat. 250. ' 10. In a writ of right, the writ and count are against four persons by name. The plea states the surname of one of the four differently, but it speaks of them as the aforesaid, &c., referring to the persons mentioned in the count. The replication to the plea gives the name as in the count. After verdict for the tenant it is too late to object to this error, if it be such. Bell's heirs v. Snyder et als., 10 Grat. 350. 11. In a writ of right, the demandants claim, as heirs of B, the patentee of the land ; and they claim upon the seisin of their ancestors. They must prove that they are the heirs of B. Ibid. WRIT OF RIGHT. 429 12. In the pleadings and verdict the demandants are spoken of as the lieirs of B. This does not prove that they are the heirs. Ibid. 13. The report of the surveyor vrho made the survey under an order in the cause, speaks of one of the demandants as heir of B. This is not evi- dence that he is such heir. Ibid. 14. In a writ of right, the tenant, to defend his possession under the statute of limitations, may show a possession anterior to his patent; and to show color of title, may introduce the entry and survey, upon which his patent issued. But as there cannot be an adversary possession against the Commonwealth,'^ he cannot show possession further back than the senior grant. Koiner v. Rankin's heirs, 11 Grrat. 420. 15. The quantity and boundaries of the land described in the count and the verdict vary from each other, but the verdict finds that the land therein described is the tenement mentioned in the count. It is to be presumed that the description given in the count is a mistaken description, and that the land recovered is the land demanded. Ibid. LIST OF" CJlSES, ARRANGED ALPHABETICALLY IN THE NAMES OF BOTH PLAINTIFFS AND DEFENDANTS, WITH THE PAGES IN GRATTON'S REPORTS WHERE THE CASES ARE REPORTED. ABBOTT et als. and Stuart's ex'ors, 9 Grat. 252. ABRAHAM et als. and Washington's ex'ors, 6 Grat. 66. ADAMS & MoCorcle and Caperton, 5 Grat. 177. V. Martin, 8 Grat. 107. ADCOCK'S Case, 8 Grat. 661. AILSTOCK'S Case, 3 Grat. 650. ALEXANDER aratZ Gaines' adm'r, 7 Grat. 257. & Co. V. Newtown et als, 2 Grat. 266. ALFORD ». Helms, 6 Grat. 90. ALLEN & wife and Dejarnette, 5 Grat. 499. ALLEN V. The Commonwealth, 6 Grat. 529. & Ervine «. Morgan's adm'r et als., 8 Grat. 60. &a.,'and Wadsworth et als., 8 Grat. 174. Walton & Co. v. Hamilton, '9 Grat. 255. & others and Robinson, 11 Grat. 785. ALLSTADT et als. and Henkle's el'x, &c, 4 Grat. 284. ALMOND & wife v. Mason's adm'r et als, 9 Grat. 700. ANDERSON, adm'r. &c. v. Burwell's ex'or, 6 Grat. 405. et als. V. Soer, 6 Grat. 363. et als. V. Gallego's adm'r et als, 6 Grat. 363. ANDERSON v. Harvey's heirs, 10 Grat. 386. ANGLEA'S Case, 10 Grat. 696. ANGLIN ». Bottom, 3 Grat. 1. ANNATI'S adm'r and Rice's ex'or, 8 Grat. 557. APPERSON and Shaokleford, 6 Grat. 451. APPLING V. Eades, 1 Grat. 286. ARCHER'S Case. 6 Grat. 705. and Gait, 7 Grat. 307. adm'r et als. and Tabb's adm'r, 7 Grat. 408. V Archer's adm'r, 8 Grat. 539. V. Ward, 9 Grat. 622. V. Commonwealth, 10 Grat. 627. ARMSTEAD'S Case, 7 Grat. 599. V. Hundley, 7 Grat. 52. adm'r et als. and Sheldon et als, 7 Grat. 264. ARMSTRONG et als. and Nelson's adm'r, 5 Grat. 354. heirs v. Walkiip et als, 9 Grat. 3'i9. V. Stone & wife, 9 Grat. 102. ARNSTHALL and Levy, 10 Grat. 631. ARTHUR et als. and Bank of Washington, 3 Grat. 173. ASH V. Way's adm'r et als, 2 Grat. 203. ASHER V. Pendleton et als, 6 Grat. 628. ASHLEY et als. and Fletcher & wife, 6 Grat. 332. ASHWELL V. Ayres et als, 4 Grat. 283. ATKINSON V. ChristiaDj 3 Grat. 448. 432 LIST OF CASES, ETC. AUSTIN V. Richardson, .1 Grat. 310. et al. V. Graham, 2 Grat. 273. AYRES' Case, 6 Grat. 668. et als. and Ashwell, 4 Grat. 283. and Price's ex'ore, 10 Grat. 575. AYLETT V. Roane, 1 Grat. 282. BACON'S Case, 7 Grat. 602. BAGWELL et als. and Spence, 6 Grat. 444. BAILEY V. Butcher, 6 Grat. 144. and Gentry et als, 6 Grat. 594. V. James, 11 Grat. 468. BAIliBY'S adm'x v. Robinsons, 1 Grat. 4. BALDWIN V. Darst, 3 Grat. 132. BALL et als. v, Johnson's ex'or et als, 8 Grat. 281 . and Satterwhite ex parte, 2 Grat. 588. BALTIMORE & Ohio R. R. Co. and Kidwell, 11 Grat. 676. BANK of U. S. V. Beirne, 1 Grat. 234. of Washington v. Arthur et als, 3 Grat. 173. V. Hupp, 10 Grat. 23. of Virginia and Raine, 4 Grat. 150. of U. S. Beirne et als, 1 Grat. 539. of Virginia et als. and Overseers of the poor, 2 Grat. 544. V. Robinson, 5 Grat. 174. et als. and Reynolds, 6 Grat. 174. and Stainback, 11 Grat. 260. ajMi Stainbaok, 11 Grat. 269. of Potomack et als. and M'Laughlin, 7 Grat. 68. BANKHEAD and French, 11 Grat. 136. BARBEB & Co. v. Pannill, ,&o., 6 Grat. 442. BARKER V. Barker's adm'r, 2 Grat. 344. BARLEY and McKee, 11 Grat. 340. BARNETT et als. and Harris' ex'ors, 3 Grat. 339. V. Meredith, Judge, 10 Grat. 650. BASSETT'S adm'r v. Cunningham's adm'r, 9 Grat. 684. BAUGH & Sequine and Harper & Weston, 9 Grat. 508. BEACH V. Trudgain et als, 2 Grat. 219. BEAL et als. and Taylor, 4 Grat- 93. BEALE V. Digges et als, 6 Grat. 582. adm'r w. Botetourt, Justices for, &c., 10 Grat. 278. and Bush, 1 Grat. 229. BEALE'S adm'r v. Taylor's adm'r et als, 2 Grat. 532. BEAN & another v. Simmons, 9 Grat. 389. BEAZLEY and Stubblefield, 5 Grat. 51. BECKLEY V. Palmer et als. 11 Grat. 625. BEERY V. Homan's Coijnmittee, 8 Grat. 48. BEIRNE and Bank D. S., 1 Grat. 234. et als. and Bank D. S., 1 Grat. 539. and Union Bank of Maryland, 1 Grat, 226. ex'or et al. v. Campbell, 4 Grat. 124. BELL'S Case, 7 Grat. 646. Case 7 Grat. 201. 8 Grat. 600. V. Crawford, 8 Grat. 110. et al. V. Calhoun, 8 Grat. 22. heirs i>. Snyder et als, 10 Grat. 350. BENTLEY'S et als. v. Harris' adm'r, 2 Grat. 357. LIST OP CASES, ETC. 438 BERRY V. Ensell et als, 2 Grat. 333. BETTY & others and Smith's adm'r, 11 Grat. 752. BEVERLEY v. Brooks et als. 4 Grat. 187. V. Scott et. als. 4 Grat. 240. BEVILL et als. and Fraziei's adm'r 11 Grat. 9. BILLDPS V. Sears et als. 5 Grat. 31. BINFORD'S adm'r v. Bobin, 1 Grat. 327. BIRCHETT and Sturdivant et als, 10 Grat. 67. BLACKFORD & SON atid McCormick, 4 Grat. 133. BLAIR V. Thompson et als. 11 Grat. 441. BLAKENEY and United States, 3 Grat. 405. BLEVIN'S Case, 6 Grat. 703. BOAK and Lee's ex'or, 11 Grat. 182. BOARD and Staats, 10 Grat. 400. BOARD of Public Works and Enders, 1 Grat. 364. BAYGESS and Phoebe, 1 Grat. 129. BOLLING et als. and Fleming et als, 8 Grat. 292. BOOTH'S Case, 4 Grat. 525. BOOTH V. Kesler, 6 Grat. 350. V. Kinsey, 8 Grat. 560. BOTETOURT Justices for, &o., atid Beale's adm'r, 10 Grat. 278. BOTTOM and Anglin, 3 Grat. 1. BOURLAND v. Eidson, 8 Grat. 27. BOURNE'S ex'or v. Mecbau's adm'r, 1 Grat. 292. BOWLES V. Woodson, 6 Grat. 78. ex'or V. Elmore's adm'x, 7 Grat. 385. BOWMAN and Moffet, 6 Grat. 219. BOWYER V. Hughart et al. 9 Grat. 336. V. Hewitt, Ruffner & Co., 2 Grat. 193. BOWYER'S adm'r et als. v. The Giles, Fayette and Kan. Turnpike Co., 9 Grat. 109. BOYCE, adm'r. &e., v. Smith, 9 Grat. 704. BOYD'S ex'ors v. Boyd's heirs, 3 Grat. 113. BOYD, Trustee, &c. et als. and Fry & Co., 3 Grat. 73. BOYD'S adm'r v. Overby, 11 Grat. 202. BRADSHAW et als. and Evans, 10 Grat. 207. BRAGG and Wootton, 1 Grat. 1. BRANCH and Kevan, 1 Grat. 274. BRANSCUM and Hale, 10 Grat. 41S. BRAXTON V. Wood's adm'r, 4 Grat. 25. adm'r, &c. u. Harrison's ex'ors, 11 Grat. 30. BRECKENRIDGE & Crawford and Pitman,. 3 Grat. 127. BRENT V. Richards, 2 Grat. 539 BREWER V. Harris et als, 4 Grat. 285. BROCK and Janes et als. 10 Grat. 211. BROGY'S Case, 10 Grat. 722. BROOK V. Washington, 8 Grat. 248. V. Wilcox, 11 Grat. 411. BROOKE et als. and Beverley, 4 Grat. 187. V. Croxton and wife et als, 2 Grat. 506. BROUGH V. Higgins et als, 2 Grat. 408. BROWN V. George, 6 Grat. 424. BROWN'S ex'ors et als. aretZ. Parker's ex'ors, 6 Grat. 554. BROWN and Clark, 8 Grat. 549. et als. and Michaux's adm'r, 10 Grat. 612. BROWNING and Price, 4 Grat. 68. • BRUCE et als. and Frederick Justices, 4 Grat. 281. 434 LIST OF CASES, ETC. BRYAN V. Salyard's et als, 3 Grat. 188. V. Stump 8 Grat 241. and wife v. Coalter's ex'or, 1 Grat. 18. V. McCulloch, 2 Grat. 175. BUCHANAN and Wilson, 7 Grat. 334. V. Clark et als, 10 Grat. 164. BDMGARDENER, guardian, and Sillings et als, 9 Grat 273. BURBRIDGE v, Higgins' adm'r, 6 Grat. 119. BURCII and Cordle, 10 Grat. 480. BURCirS adm'r and Markle's adm'r et als, 11 Grat. 26. BDRFOOT treasurer and Wilson et als, 2 Grat. 134. BDRNSIDES and Taylor's devisees, 1 Grat. 165. BURR'S Case, 4 Grat. 534. ex'or et als v. McDonald et ais, 3 Grat. 215. BURWELL'S ex'ors and Anderson, adm'r, &c., 6 Grat. 405. BUSH V. Beale, 1 Grat. 229. BUTCHER'S Case, 4 Grat. 544. BUTCHER and Bailey, 6 Grat. 144. V. Creel's heirs, 9 Grat. 201. BUZZARD'S Case, 5 Grat. 694. CABANESS V. Matthews et als, 2 Grat. 325. CADY'S Case, 10 Grat. 776. CALDWELL'S ex'ors v. McCortney et als, 2 Grat 187. CALES V. Miller et als, 8 Grat. 6. CALHOUN'S ex'or and Patten's ex'ors, 4 Grat. 138. CALHOUN and Bell et al, 8 Grat. 22. V. Palmer, 8 Grat. 88. CALLIS et als. v. Kemp et als, 11 Grat. 78. CAMPBELL et als. and Turner and wife, 3 Grat. 77. and Beirne's ex'ors et als, 4 Grat. 125. and Nichols, 10 Grat. 560. and Thralkeld's, 2 Grat. 198. CAPERTON V. McCorkle & Adams, 5 Grat. 177. CAPERTON'S ex'ors et als and Lewis et als, 8 Grat. 148. CAPERTON et al v. Gregory et als, lessee, 11 Grat. 505. CARNEY'S Case, 4 Grat. 546. CARPENTER and wife v. Utz et als, 4 Grat. 270. CARPER et als. v. McDowell, 5 Grat. 212. CARR'S adm'r v. Glasscock's adm'r et als, 3 Grat. 343. CARRELL et als. v Winn et als, 2 Grat. 227. CARRINGTON et als. v. Otis et als, 4 Grat. 235. et als. V. Didier, Norvell & Co., 8 Grat. 260. CARROLL et als. v. Tiffany, 9 Grat. 289. CARTER et als. and Withers, 4 Grat. 407. et als. and Stafford, 4 Grat. 63. et als. and Elliutt, 9 Grat. 541. CATLETT and Millers, 10 Grat. 477. CAUTHORN V. Courtney, 6 Grat. 381. CECIL V. Early et als, 10 Grat. 198. CHA.MBERS and Swope, 2 Grat. 319. CHANCELLOR and Wellford et als, 5 Grat. 39. CHAPMAN V. Dunlap, 4 Graf. 86. and Smith etal, 10 Grat. 445. CHARLES V. Charles, 8 Grat. 486. CHARLTON V. Unis, 4 Grat. 58. adm'r. and Smith's adm'r, 7 Grat. 425. LIST OF CASES, ETC. ^ 435 CHEMINANT'S adm'rs and Lucy, 2 Grat. 36. CHESAPEAKE & Ohio Canal Co., v. Hoge et als, 2 Grat. 51L CHESHIRE V. Purcell, 11 Grat. 771. CIIINN et als. v. Murray et als, 4 Grat. 348. CHKISTIAN'S Case, 7 Grat. 631. and Atkinson, 3 Grat. 448. etals. and Watts, 3 Grat. 518. CHRISTIAN V. Ellis, 1 Grat. 396. CLARK'S Case, 6 Grat. 673. V. Wells adm'r, 6 Grat. 475. V. Hardgrove et als, -7 Grat. 399. V. Brown, 8 Grat. 549. et als. and Buchanan, 10 Grat. 164. V. M'Clure, 10 Grat. 305. CLAYCOMB'S legatees, v. Claycomb's ex'or, 10 Grat. 589. V. Curtis, 1 Grat. 289. CLELAND V. Watson, 10 Grat. 159. . ^ CLERE'S Case, 3 Grat. 615. CLINE and Compton, 5 Grat. 137. heirs and Reed, 9 Grat. 136. CLOPTON'S adm'r, &c., and Columbian College, 7 Grat. 168. CLORE'S Case, 8 Grat. 606. CLOOGH &e. v. Thompson, 7 Grat. 26. COALTER'S ex'or v. Bryan and wife, &o., 1 Grat. 18. COBBS et als. and Tapsoott, 11 Grat. 172. COCKERELL et als. and Hopkins adm'r, 2 Grat. 88. COCKRAN and Trice, 8 Grat. 442. V. Paris etals. 11 Grat. 348. COINER and Porterfield, 4 Grat. 55. COLE'S Case, 5 Grat. 696. et als. and Welles, 6 Grat. 645. COLEMAN and White, 6 Grat. 138. & wife and Snead, 7 Grat. 300. COLSTON and Orriok, 7 Grat. 189. COLUMBIAN COLLEGE v. Clopton's adm'r, &c., 7 Grat. 168. COLVIN and Boberts, 3 Grat. 358. V. Menifee, 11 Grat. 87. COMMONWEALTH and Allen, 6 Grat. 529. and Archer, 10 Grat. 627. and Doss, 1 Grat. 557. and Slaughter adm'r, 2 Grat. 391. and Ilamlett, 3 Grat. 82. and Saundjr's adm'r, 3 Grat. 214. and Saunders, 10 Grat. 494. V. Yates, 9 Grat. 693. V. Moore's adm'r, 1 Grat. 294. V. Ricks et als, 1 Grat. 416. V. Peyton's adm'r, 2 Grat. 393. COMTON V. Cline, 5 Grat. 137. CORNELL'S Case, 3 Grat. 587. COOK, SHERIFF et als. v. Hays, 9 Grat. 142. COOKUS V. Peyton's ex'or, 1 Grat. 431. CORDLE V. Rurob, 10 Grat. 480. CORNWELL and Iligginbotham, 8 Grat. 83. and Nelson's adm'r, 11 Grat. 724. ' COTTRELL adm'x et al.=. and Dabney et als, 9 Grat 572. COUNTS et als. and McReynold, 9 Grat. 242. 436 . LIST OF CASES, ETC. COURTNEY and Cauthorn, 6 Grat. 381. COUSINS and Parker, 2 Grat. 372. COWLES and Howell, &o., 6 Grat. 393. OCX et als. and Sohdfield, 8 Grat. 533. &c. V. Rumine, 9 Grat. 27. et als. V. Thomas adrn'x 9 Grat. 312. et als V. Thomas adm'x 9 Grat. 323. CRAIG V. Sebrell, 9 Grat. 131. CRALLE et als. S. Meem et als, 8 Grat. 496. CRAWFORD and Williamson, 7 Grat. 202. and Bell, 8 Grat. 110. V. Morris, 5 Grat. 90. and McDowell ex'or, 11 Grat. 377. I ex'or V. Patterson, 11 Grat. 364. CREEL'S heirs and Butcher, 9 Grat. 201. GREGOR'S Case, 7 Grat. 591. CREIGH'S heirs v. Henson, 10 Grat. 231. CREWS and Davis, 1 Grat. 407. CRISS and Gross, Myers & Moore, 3 Grat. 262. CROSS' ouratrix v. Cross' legatees, 4 Grat. 257. CROFT et als. v. Croft, ex'or, &c., 4 Grat. 103. CROUCH et als. r. Dabney 2 Grat. 415. CROW & wife and Hale, 9 Grat. 263. OROXTON & wife et als. and Brooke, 2 Grat. 506. CRUMP et als. v. Redd's adm'r et als, 6 Grat. 372. V. U. S. Mining Co., 7 Grat. 352. CUNNINGHAM'S Case, 6 Grat. 695. V. Cunningham, 4 Grat. 43. & Wife et als. and Norman's ox's, 5 Grat. 63. adm'r and Bassett's adm'r, 9 Grat. 684. V. Smith et al. 10 Grat. 255. OURD V. Miller's ex'ors, 7 Grat. 1S5. CURRAN'S Case, 7 Grat. 619. CURRIN and Hoge, 3 Grat. 201. et als. V. Spri'.uU et als, 10 Grat. 145. CURTIS and Clark 1 Grat. 289. DABNEY and wife v. Kennedy, 7 Grat. 317, et als. V. Cottrell's adm'x et als., 9 Grat. 572. and Crouch et als., 2 Grat. 415. V. Knapp, Preston & Co., 2 Grat. 354. DALBY a7id Literary Fund, 4 Grat. 528. DALY, assignee, and Tucker, 7 Grat. 330. DANCE et als. v. Seaman et als., 11 Grat. 778. DARST and Baldwin, 3, Grat. 132. DAVIS V. Crews, 1 Grat. 407. V. Davis, 2 Grat. 363. et als. V. Teays et als., 3 Grat. 283. and Smith, 4 Crat. 50. V. Turner, 4 Grat. 422. et als. and Poindextcr, &o., 6 Grat. 481. et als. and Ilogue, 8 Grat. 4. DAVISSON and Overton's heirs, 1 Grat. 211. DAWSON and Rivnnna Nav. Co., 3 Grat. 19. and wife and Thomas, 9 Grat. 531. DAY'S case, 2 Grat. 562. Case, 3 Grat. 629. LIST or CASES, ETC. 437 DAY and Robinson's ex'ors, 5 Grat. 55. et als. and Farmers' Bank, 6 Grat. 360. DEAN'S Case, 4 Grat, 541. DBJARNBTTE v. Allen and wife, 5 Grat. 499. DENEUPVILLE'S adm'r v. Travis' adm'r, 5 Grat. 28. DENHAM'S heirs and Rogers, 2 Grat. 200. DEPRIEST et als. and Rosser, ex' or of Wood, 5 Grat. 374. DESHAZO and Yarbrough and wife, 7 Grat. 374. DESHIELDS and Jameson's adm'r, 3 Grat. 4. DeSOER and Anderson et als., 6 Grat. 363. DBVERS V. Ross, 10 Grat. 252. DICKEY and Reeves, 10 Grat. 138. DICKINSON & CO. a7id Perkins' trustee, 3 Grat. 335. V. Hoomes, 1 Grat. 302. V. Dickinson's adm'r et als., 2 Grat. 493. DICKINSON'S adm'r and 'Gray, 4 Grat. S7. DICKINSON V. Smith and Carter, 5 Grat. 135. V. Hoomes, adm'r et als., 8 Grat. 353. DICKINSONS and Roaoh, 9 Grat. 154. DIDIER, Norvell & CO. and Carrington et als., 8 Grat. 260. DIGGES et als. aiid Beale, 6 Grat. 582. and Edmunds, 1 Grat. 359. DISMAL Swamp Land Co. v. A. Macaulaj's adm'r et ais., 7 Grat. 476. DIXON V. Myers & Co., 7 Grat. 240. DOLD'S trustees v. Geiger's adm'r, 2 Grat. 98. DONNALLY and Tyree et als., 9 Grat. 64. DOSS V. Commonwealth, 1 Grat. 557. DOUGLAS' ex'or and Piper, 3 Grat. 371. . DOWDY'S Case, 9 Grat. 727. DOWNER & Co. V. Morrison, 2 Grat. 237, 250. DRAKE and Cochran's Case, 6 Grat. 665.. V. Lyons, 9 Grat. 54. DUFEIELD and McLaughlin, 5 Grat. 133. and Lucas and wife, 6 Grat. 456. DUNCAN et als. and Pryor, 5 Grat. 27. V. Helms and others, 8 Grat. 68. DUNLAP and Chapman. 4 Grat. 86. DUNN'S adm'or and Mason's ex'or, 5 Grat. 384. adm'or and Wills' adm'or o Grat. 384. DUNN and Johnson, 6 Grat. 625. DUNNINGTON'S v. Pres. & Dir. N. W. Turn. Road, 6 Grat. 160. DENIIAM et als., and Phippin, 8 Grat. 457. DYE'S Case, 7 Grat. 662. EADES and Appling, 1 Grat. 286. , EARLY V. Wilkinson and Hunt, 9 Grat. 68. and others and Cecil, 10 Grat. 198. EDLOE et als. and McCandlish adm'or, &c., 3 Grat. 330. EDMUNDS V. Digges, 1 Grat. 359. EIDSON and Bourland, 8 Grat. 27. !). Fontaine, adm'r, &c., et als., 9 Grat. 286. and Lea's ex'or, 9 Grat. 277. ELLIOTT V. Carter et als., 9 Grat. 541. ELLIS and Christian, 1 Grat. 396. ELMORE'S adm'x and Bowles ex'or, 7 Grat. 385. EMERICK, &c., V. Tavener, 9 Grat. 220. ENDERS V. Board of Public Works, 1 Grat. 364. 438 LIST OF GASES, ETC. ENGLISH et als. and Pasley, 5 Grat. 141. and Pasley, 10 Grat. 236. ENSELL et als. and Berry, 2 Grat. 333. and McKinley, sheriff, 2 Grat. 333. EPES' Case, 5 Grat. 676. et als. and Myriok's ex'or, 8 Grat. 179. BRSKINE'S Case, 8 Grat. 624. EVANS and wife v. Spurgin, 6 Grat. 107. V. Bradshaw et als., 10 Grat. 207. et als. V. Spurgin et als., 11 Grat. 615. EWELL'S adm'r et als. and Hayes, 4 Grat. 11. ^ EWING'S Case, 5 Gj-at. 701. FAIRFAX V. Fairfax's ex'or, 7 Grat. 36. FALCONER and Muire, 10 Grat. 12. FARISH & Co. V. Reigle, 11 Grat. 697. FARMERS' BANK v. Day et als., 6 Grat. 360. FAWVER V. Pawver, 6 Grat. 236. FBAZLE'S Case, 8 Grat. 585. FERGUSON'S Case, 3 Grat. 594. FERGUSON and Leake, 2 Grat. 419. FINDLEY'S ex'ors v. Findley, 11 Grat. 434. FISHER et als. and Rossett, 11 Grat. 492. FITZHUGH'S ex'ors v. Fitzhngh, 11 Grat. 210. ex'or V. Fitzhugh, 11 Grat. 300. FLANAGAN u. Grimmet et als., 10 Grat. 421. FLEMMING'S v. Riddick's ex'ors, 5 Grat. 272. FLEMING V. Toler, 7 Grat. 310. et als. V. Boiling et als., 8 Grat. 292. FLETCHER and wife v. Ashley et als., 6 Grat. 332. V. Watson, 7 Grat. 1. and Watson, 7 Grat. 1. FLINT et als. and Smith et als., 6 Grat. 40. FLOYD and Strange, 9 Grat. 474. FONES V. Rice et als., 9 Grat. 568. FONTAINE adm'r, &c., et als., and Eidson, 9 Grat. 286. FORD V. Nichols & Snyder, 3 Grat. 88. and Patteson, 2 Grat. 18. FORKNER V. Stnart, &c., 6 Grat. 197. FORSYTH and Newby, 3 Grat. 308. FORWARD'S adm'r v. Thamer, 9 Grat. 537. FOSTER'S Case, 5 Grat. 695. FRANKLIN and Rosser, &c., 6 Grat. 1. and Taliaferro, 1 Grat. 332. FRAZIER'S adm'r v. Bovill et als., 11 Grat. 9. FREDERICK JUSTICES v. Bruce et als., 4 Grat. 2S1. FRENCH V. Townes et als., 10 Grat. 513. V. Bankhead, 11 Grat. 136. FRIEND, &c. V. Woods, 6 Grat. 189. V. Wilkinson & Hunt, 9 Grat. 31. V. Woods, 9 Grat. .')7. FRY & Co. V. Boyd, &c., et als., 3 Grat. 73. FRY'S and Shepherd, Hunter & Co., 3 Grat. 442. FUGATB'S Case, 6 Grat. 693. FULTON'S ex'ors and Irick and wife, 3 Grat. 193. GAINES' adm'r v. Alexander, 7 Grat. 257. LIST OF CASES, ETC. 439 GAINES and Thomas, 1 Grab. 347. GALLAHUE and Mairs, 9 Grat. 94. GALLEGO'S adm'r et als , and Anderson et als., 6 Grat. 363. GALT V. Archer, 7 Grat. 307. GALT'S ek'or et als. v. Swain, 9 Grat. 633. GARDNER v. Neal, 9 Grat. 85. and Roach, 9 Grat. 89. GARNER et ala'. Case, 3 Grat. 655. GARTH et als. and Horseley et als., 2 Grat. 471. GAYLB et als. and Williamson, 4 Grat. 180. and Williamson, 7 Grat. 152. GEIGER'S adm'r v. Harman'a ex'x. 3 Grat. 130. and Harnsberger's ex'or, 3 Grat. 144. and Dold's trustee, 2 Grat. 98. GENTRY et als'. v. Bailey, 6 Grat. 594. GEORGE and Brown, 6 Grat. 424. V- Strange's ex'or, 10 Grat. 499. GIBSON and McCarty, 5 Grat. 307. GIBSON'S ex'or and Rhea, 10 Grat. 215. GILES, Fayette and Kanawha Turnpike Co. and Bowyer's adm'r et als., 9 Grat. 109. GILLESPIE et als. v. Thompson et als., 5 Grat. 132. GIVENS et als. a7id Wiley et als., 6 Grat. 277. and Williams, 6 Grat. 268. and Rowans, 10 Grat. 250. GLAZBBBOOK'S adm'r v. Ragland's adm'r, 8 Grat. 332. GLASCOCK'S adm'r et als. and Carr's adm'rs, 3 Grat. 343. GLASSELL and Pollock and wife, 2 Grat. 439. GOOCHLAND Justices and Sampson, 5 Grat. 241. GOODWIN V. McCluer, 3 Grat. 291. et als. and Williamson's ex'or, 9 Grat. 503. GOOLSBY ex parte, 2 Grat. 575. GOVAN and Thompson, 9 Grat. 695. GOVERNOR for Clarke and McNeale et als., 3 Grat. 299. for Liggart v. Withers, 5 Grat. 24. for Bryan v. MoCuUoch et als., 2 Grat. 175. for Leightoup v. Hinchman, &c., 2 Grat. 156. for Davis v. Roach et alK, 9 Grat. 13. GRAHAM V. Austin et als., 2 Grat. 273. GRAY and Hansbrough, 3 Grat. 356. V. Dickinson's adm'r, 4 Grat. 87. V. Overstreet et als., 7 Grat. 613. GRAYSON'S Case, 6 Grat. 712. 7 Grat. 613. GREERS V. Wright, 6 Grat. 154. GREER V. Greers, 9 Grat. 330. GREGORY et als., lessee, and Caperton et al., 11 Grat. 505. GRIFFIN'S ex'or and Macauley's adm'r, 4 Grat. 9. ex'or et als. v. A. Maoauloy's adm'r, 7 Grat. 476. V. E. Macauley's ex'or, 7 Grat. 476. GRIFFITH et als. v. Reynolds, 4 Grat. 46. ■ii. Thompson, 4 Grat. 147. 6RIMMET et als. and Flanagan, 10 Grat. 421. GROSS, Myers & Moore v. Criss, 3 Grat. 262. GROVE and wife and Isler and wife, 8 Grat. 257. GWINN et als. and Mann, 8 Grat. 58. 440 LIST OF CASES, ETC. HADBN'S adm'r and Ross' ex'or, 7 Grat. 86. HAFFET, &c. V. Miller, &c., 6 Grat. 454. HAGAN, &o. V. Wardens, 3 Grat. 315. HAGY and others and Eagsdale, 9 Grat. 409. HAILSTOCK'S Case, 2 Grat. 564. HAIRSTON, &c. V. Medley, 1 Grat. 96. HALE 2). Crow and wife, 9 Grat. 263. and Walton, 9 Grat. 194. V. BransGum, 10 Grat. 418. HALLAM'S adm'r and Oliver's ex'or, 1 Grat. 298. HALL'S Case, 3 Grat. 593. 8 Grat. 588. HALL et als. and Martin, 9 Grat. 8. HAMILTON and Allen, Walton & Co., 9 Grat. 255. adm'r-et als. and Hillis, 10 Grat. 300. HAMLBTT et als. v. Commonwealth, 3 Grat. 82. HAMOR and Wife's Case, 8 Grat. 698. HAMPTON'S Case, 3 Grat. 590. HAMPTON, Smith & Co. v. Michael, 6 Grat. 151. HANCOCK V. Richmond & Petersburg Railroad Co., 3 Grat. 328. HANDLBY et als. and Niokell & Miller, 10 Grat. 336. HANNA V. Wilson, 3 Grat. 243. HANNAH and Hannon et als., 9 Grat. 146. HANNON et als. v. Hannah, 9 Grat. 146. HANSBARGBR a?id Lemon, guardian, 6 Grat. 301. HANSBROUGH v. Gray, 3 Grat. 356. HARD AW AY'S adm'r and Worsham, 5 Grat. 60. HARDGROVE, &c. v. Clarke, 7 Grat. 399. HARDINGS and Upper Appomattox Co., 11 Grat. 1. HARGRAVE et als. and Peter et als., 5 Grat. 12. HARMAN V. Odell, 6 Grat. 207. HARMAN'S ex'x and Geiger's adm'r, 3 Grat. 130. devisees and Wynn, 5 Grat. 157. HARNSBARGER'S adm'r v. Kinney, 6 Grat. 287. HARNSBBRGBR'S ex'or v. Geiger's adm'r, 3 Grat. 144. HARPER & Weston v. Baugh & Seguine, 9 Grat. 508. HARRIS' ex'ors v. Barnett et als., 3 Grat. 339. adm'r and Bentley et als., 2 Grat 357.* HARRIS & Hickman's Case, 7 Grat. 600. et als. and Brewer, 5 Grat. 285. HARRISON Justices v. Holland, 3 Grat. 247. HARRISON'S ex'ors and Braxton's adm'r, &c., 11 Grat. 30. HARRISON V. Harrison's adm'r, 2 Grat. 1. V. Middlettin, 11 Grat. 527. HARVEY & Co. and Niday, 9 Grat. 454. HARVEY'S heirs and Anderson, 10 Grat. 386. HASLER'S lessee v. King, 9 Grat. 115. HATCHER'S Case, 6 Grat. 667. . HATTON'S Case, 3 Grat. 023. HAAVKINS' adm'r and Perkins' adm'r, 9 Grat. 649. HAWTHORN and Reese, 10 Grat. 548. HAYES V. Ewell's adm'r et als., 4 Grat. 11. and Cook, sheriff, et als., 9 Grat. 142. V. Northwestern Bank of Virginia, 9 Grat. 127. HEAD'S Case, 11 Grat. 819. IIEALY et als, v. Rowan et als., 5 Grnt. 414. HELMONDOLLER'S Case, 4 Grat. 536. LIST OP OASES, ETO. 441 HELMS and Alford, 6 Grat. 90. adm'r and Holland, 7 Grat. 245. and others and Duncan, 8 Grat. 68. HENDERSON et als. atid Shepherd, 3 Grat. 367. V. Stringer, 6 Grat. 130. V. Henderson's ex'x, 9 Grat. 394. HENDERSON'S Case, 8 Grat. 708. HENDRICK'S v. Shoemaker, 3 Grat. 197. et als. and Knifing, 2 Grat. 212. HENKLE'S ex'x, &c. v. AUstadt et als., 4 Grat. 284. HENLEY'S adm'r v. Penkins et als., 6 Grat. 615. HENSON and Creigh's heirs, 10 Grat. 231. HEROLD and McNeil, 11 Grat. 309. HESTEND and Withers, 5 Grat. 456. HETll et als. v. Richm'd, Fred'g & Potomac R. R. Co., 4 Grat. 482. HEWITT, Ruffner & Co. and Bowyer, 2 Grat. 193. HICHAM V. Larkey, 6 Grat. 210. HICKLE et als. and Peale, 9 Grat. 437. HICKS' Case, 7 Grat. 597. HIGGINS' adm'r and Burbridge, 6 Grat. 119. et als. and Brough, 2 Grac. 408. HIGGINBOTHAM v. Cornwell, 8 Grat. 83. HIGHLAND and Young, 9 Grat. 16. HILL'S Case, 2 Grat. 594. 5 Grat. 682. HILL V. Manser et als., 11 Grat. 522. HILLIS ». Hamiton, adm'r, et als-, 10 Grat. 300. HINCHMAN, &c. and Governor for Leightbns, 1 Grat. 156. HITT and Humphrey, 6 Grat. 509. HOBBS V. Shumates, 11 Grat. 516. HOBSON V. Yancey et als., 2 Grat. 73. HOCKER V. Hooker et als., 4 Grat. 277. HOGE V. Carrin, 3 Grat. 201. HOGUE V. D.ivis et als., 8 Grat. 4. HOLCOMBE'S ex'ors et als. and Miller, 9 Grat. 665. HOLLAND and Harrison Justices, 3 Grat. 247. V. Helm's adm'r, 7 Grat. 245. HOLT and Moore et als., 10 Grat. 284. HOMAN'S Committee and Beery, 8 Grat. 48. HOOMES' adm'r et als. and Dickinson, 8 Grat. 353. and Dickinson, 1 Grat. 302. HOPE V. Smith, sheriff, 10 Grat. 221. HOPKINS, &c. V. Koonce, 6 Grat. 387. Bro. & Co. V. Richardson, 9 Grat. 485. adm'r v. Cockerell et als., 2 Grat. 88. HOPPER, Stiers & Lemmon's Case, 6 Grat. 684. HORD et als. and Hume, 5 Grat. 374. HORSLEY et als. v. Garth et als., 2 Grat. 471. HOWARD and the Commonwealth, 1 Grat. 555. HOWEL'S Case, 5 Grat. 664. HOWEL, &o. V. Cowles, 6 Grat. 393. ' HOYE et als. and Chesapeake & Ohio C. Co., 2 Grat. 511. HUDGIN V. Hudgins' ex'or et als., 6 Grat. 320. HUDSON V. Kline, 9 Grat. 379. HUGHART-et al. and Bowyer, 9 Grat. 336. HOME V. Hord et als., 5 Grat. 374. HUMPHREY V. Hitt, 6 Grat. 509. M2 LIST OF CASES, ETC. HUMPHREY and Noyes' ex'x, 11 Grat. 636. HUNDLEY and Armstead, 7 Grat. 52. HUNTER V. Waite, 3 Grat. 20. V. Lawrence's adra'r et ill., 11 Grat. 111. HUNTER'S Case, 7 Grat. 641. HUNT'S adm'r v. Martin's adm'r, 8 Grat. 578. HUPP V. Hupp, 6 Grat. 310. and Bank of AVashington, 10 Grat. 2^. HURT and Watson, 6 Grat. 633. HUSTON'S ex'ors and Pence for &c., 6 Grat. 304. HUTCHISON et als. and Stephens, 6 Grat. 147. • and wife v. Rust et als., 2 Grat. 394. HUTCHERSON, &c. v. Pigg, 8 Grat. 220. HYLTON V. Ilylton, 1 Grat. 161. IRICK and wife v. Fulton's ex'ors, 3 Grat. 193. ISBELL'S adm'r v. Norvell's ex'dr, 4 Grat. 176. ISLER and wife v. Grove and wife, 8 Grat. 257. JAQUES' Case, 10 Grat. 690. JACKSON and M'Cluny & Co., 6 Grat. 96. JACKSON'S adm'r v. Jackson's heirs, 1 Grat. 143. JAMESON'S adm'x v. Deshields, 3 Grat. 4. JAMES River and Kanawha Co. v. Thomson & Teays, 3 Grat. 270. and Bailey, 11 Grat. 468. JANNEY et als. and McLaughlin, 6 Grat. 609. JARRETT V. Johnson, 11 Grat. 327. JAYNES et als. v. Brook et als., 10 Grat. 211. JEFFRESS et als and Miller and wife, 4 Grat. 472. JENNINGS' Case, 3 Grat. 624. JENNINGS V. Palmer, 8 Grat. 70. et als. V. Montague, 2 Grat. 350. JENNINGS' adm'r and Johnson's ex'x, 10 Grat. 1. JESSE V. Preston, 5 Grat. 120. et als. V. Parker's adm'rs et als., 6 Grat. 57. JETER V. Langhorne, 5 Grat. 193. JINCEY et als. and Jones, 9 Grat. 708. V. Wingfield's adm'r, 9 Grat. 708. JOHNS et als. and Middleton, 4 Grat. 129. JOHNSTON'S Case, 5 Grat. 660. JOHNSON'S Case, 2 Grat, 581. JOHNSON V. Dunn, 6 Grat. 625. and Jarrett, 11 Grat. 327. JOHNSON'S ex'or et als. and Ball et als., 8 Grat. 281. ex'x V. Jennings' adm'r, 10 Grat. 1. JOHNSTON and Young for, &c., 10 Grat. 269. and wife v. Slater et al., 11 Grat. 321. V. Zane's trustees et als., 11 Grat. 552. .JONES' Case, 2 Grat. 555. JONES, &c. V. Myrick's ex'ors, 8 Grat. 179. and Nuckol's adm'r, 8 Grat. 267. V. Jincey et als., 9 Grat. 708. and Ktennaird, &o., 9 Grat. 183. V. Lackland et als., 2 Grat. 81. et als. and Miller, 9 Grat. 584. and wife v. Obenchain et als,, 10 Grat. 259. JORDAN V. Wyatt, 4 Grat. 151. LIST or CASES, ETC. KEAN V. Welsh, 1 Grat. 403. KEE'S ex'or v. Kee's creditors, 2 Grat. 116. KEIIH V. Preston, 5 Grat. 120. KELSO'S adm'r et als. and Ben Mercer et als., 3 Grat. 106. KELLY V. Paul, 3 Grat. 191. V. Scott, 5 Grat. 479. V. Linkenhoger, 8 Grat. 104. KELLY'S Case, 8 Grat. 632. KEMP et als. and Callis et als., 11 Grat. 78. KENNAIRD, &o. v. Jones, 9 Grat. 183. KENNEDY and Dahney and wife et als.; 7 Grat. 317. KENT et als. and Tiffaney, 2 Grat. 231. KERN'S et als. and Sharp, 2 Grat. 348. KESLER and Booth, 6 Grat. 350. KBVAN V. Branch, 1 Grat. 274. KIDWELL V. Baltimore & Ohio Railroad Co., 11 Grat. 676. KINCHELOE v. Traoewells, 11 Grat. 587. KING et als. and Ott's ex'x, 8 Grat. 224. and Hasler's lessee, 9 Grat. 115. and Roberts, 10 Grat. 184. KINNAIRD and McClellan, 6 Grat. 352. KINNEY and Harnsbarger's adm'r, 6 Grat. 287. KINSEY and Booth, 8 Grat. 560. KIRBY, adm'r, &o. et ala. and Martin, adm'r, 11 Grat. 67. KLINE and Hudson, 9 Grat. 379. KNAPP, Preston & Co. and Dabneys, 2 Grat. 354. KNIFONG V. Hendricks et als., 2 Grat. 212. KNISELEY V. Williams et als., 3 Grat. 265. KOINER V. Rankin's heirs, 11 Grat. 420. KOONCE and Hopkins, &o., 6 Grat. 387. KRETZER V. Wysong, 5 Grat. 9. KYLE and Price, 9 Grat. 247. KYLES V. Tait's adm'r 6 Grat. 44. ex'or V. Kyle 1 Grat. 526. LACKLAND et als. and Jones 2 Grat. 81. LAFFERTY'S Case, 6 Grat. 672. LAMB and Wise, 9 Grat. 294. LAMBERTS and Smith's adm'r, 7 Grat. 138. LANCASTER and Shanks et als, 5 Grat. 110. . LANGHORNE and Jeter, 5 Grat. 193. LANTHROP'S Case, 6 Grat. 671. LARKEY and Hickara, 6 Grat. 210. LAW V. Law, 2 Grat. 366. LAWS' ex'ors v. Sutherland et als., 5 Grat. 357. LAWRENCE'S adm'r etal. and Hunter, 11 Grat. 111. LAZIBR'S Case, 10 Grat. 708. LAZIER et als. and Wilson, 11 Grat. 477. LEAKE V. Ferguson, 2 Grat. 419. LEA'S ex'or v. Eidson, 9 Grat. 277. LEE'S ex'or v. Boak, 11 Grat. 182. LEMON, gurdian, v. Harnsbarger, fa Grat. 301. LENOWS V. Lenow, 8 Grat. 349- LEWIS V. Washington, 5 Grat. 265 et als. V. Caperton s ex'or et als, 8 Grat. 148. LEVASSER V. Wasburn, 11 Grat. 572. . LEVISAY et als. and Steele, 11 Grat. 454. 444 LIST OF CASES, ETC. LEVY V. Arnsthall, 10 Grat. 641. LIGGATT V. Withers, 5 Grat. 24. LINKENHOGER and Kelly, 8 Grat. 104. LIPSCOMB and United States, 4 Grat. 41. LITERARY Fund v. Dalby, 4 Grat. 528. LITTON'S Case, 6 Grat. 691. LIVELY and Pollard's heirs, 2 Grat. 216, 4 Grat. 73. LIVINGSTON'S Case, 7 Grat. 658. LODGE'S Case, 2 Grat, 579, 6 Grat. 699. LOFTUS' Case, 3 Grat. 631. LOGAN'S Case, 2 Grat. 571, 5 Grat. 692. LOGAN and Neal 1 Grat. 14. LOUISA Railroad Co. and Trevillian, 3 Grat. 326. LOWE V. Miller, 3 Grat. 205. LUCAS and wife «. Duffield, 6 Grat. 456. LUCY V. Cheminant's adm'r, 2 Grat. 36. LUMPKIN and Washington, 5 Grat, 432. and Pollard, 6 Grat. 398. LUSTER V. Middleeoff et als, 8 Grat. 54. LYLE V. Overseers of the Poor of Ohio County, 8 Grat. 20. LYNCH et als and Yerby and Wife, 3 Grat. 460. LYONS V. Miller, 6 Grat. 427. LYONS' adm'r v. Magagno's adm'r, 7 Grat. 377. LYONS and MoGruder, 7 Grat. 2'32. and Drake, 9 Grat. 54. MACAULAY'S adm'r v. Griffin's ex'or et als, 4 Grat. 9. ex' or and Griffin's ex'or et als, 7 Grat. 476. adm'r and Grif&n's ex'or et als, 7 Grat. 476. adm'r etals. and Dismal Land Swamp Co., 7 Grat. 746. MACHIR V. Moore, 2 Grat. 257. MACHIR'S adm'r and Mulliday, 4 Grat. 1. MACON and McKenzie et als, 5 Grat. 379. MADDOX et al. v. Maddox's adm'r et als, 11 Grat. 804. MAGAGNO'S adm'r and Lynns' adm'r, 7 Grat. 377. MAIRS w. Gallahue, 9 Grat. 94. MANN «. Gwynn et als, 8 Grat. 58. MANSER et al. and Hill, 11 Grat. 522. MARKLE'S adm'r et als. v. Burch's adm'r, 11 Grat. 26. MARSHALL'S Case, 5 Grat. 663. 5 Grat. C93. MARSTELLER v. Weaver, 1 Grat. 391. MARTIN and Adams, 8 Grat. 107. adm'r and Hunts adm'r, 8 Grat. 578. V. Hall et als, 9 Grat. 8. adm'r i\ Kirby's adm'r et als, 11 Grat. 67. MARTINEY'S ex'or and Phillips et als, 10 Grat. 333. MASON'S adm'r v. Dunn's adm'r, 5 Grat. 384. adm'r et als, and Almond and Wife, 9 Grat. 700. MASTER'S V. Varner's ex'ors, 5 Grat. 168. MATTHEWS et als. v Cabaness, 2 Grat. 325. MAY'S V. Swope, 8 Grat. 46. McALPINE'S heirs and Otley, 2 Grat. 340. McCALL and Prestons, 7 Grat. 121. McCANCE V. Taylor 10 Grat. 580. McCANDLISri, adm'r, &c., v. Edloo et als, 3 Grat. 330. MoCARTY V. Gibson, 5 Grat. 307. < LIST OF CASES, ETC. 445 McCLANACI-IAN et nls. and Siter, Price & Co., 2 Grat. 280. McCLEARY et al. and Puroell, 10 Grat. 246. McClelland v. Kennalrd, 6 Grat. 352. McCLDNY & Co. v. Jackson, 6 Grat. 96. McCLUNG et als. and YounR, adm'r and Bowyer, 9 Grat. 336. McCLUER and Goodwin, 3 Grat. 291. McCLURE and Clarke, 10 Grat. 305. V. THISTLE'S ex'ors, 2 Grat. 182. McCORKLE & Adams and Caperton, 5 Grat. 177. McCORMICK V. Blackford & Son, 4 Grat. 133. McCORTNEY et als. and Caldwell's ex'ors, 2 Grat. 187. McCOY et als. and Parker et als, 10 Grat. 594. McCUE V. Ralston, 9 Grat 430. McCULLOCH et als. and Governor for Bryan, 2 Grat. 175. McDonald et als. and Burr's ex'or et als, 3 Grat. 215. McDowell and Carper et als, 5 Grat. 212. MCDOWELL'S ex'or v. Crawford, 11 Grat. 377. McGINNIS and Seamonds, 3 Grat. 319. McGRUDER c. Lyons, 7 Grat. 233. McGDlRE et als v. Pierce, .issignee, &o., 9 Grat. 167. McKBE V. Bailev, 11 Grat. 340. McKBNZIE et als. v. Macon, -5 Grat. 379. McKINLEY and Parrill, 9 Grat. 1. sheriif, &e., for Berry v. Bnsell et als, 2 Grat. 333. McKINNEY'S Case, 8 Grat. 589. McLAUGHLAN'S adm'r et als. and Ross' ex'or, 7 Grat. 86. Mclaughlin «. Duffieid, .5 Grat. 133. V. Janney et als, 6 Grat. 609. and Peatross, 6 Grat. 64. V. Bank of Potomac et als, 7 Grat. 68. MCLAUGHLIN'S adm'r andYance, 8 Grat. 289. McLUER'S adm'r et als and Rogers, 4 Grat. 81. McMASTER v. McMaster's ex'ors, 10 Grat. 275. McNEALE et als. v. Governor for Clarke, 3 Grat. 299. McNEEL h. Herold, 11 Grat. 309. McNEW V. Smith, 5 Grat. 84. McPHERSON V. Nesmith and wife 8 Grat. 237. McREYNOLD'S v. Counts et als, 9 Grat. 242. McWHIRT'S Case, 3 Grat. 594. MEGHAN and Bourne's ex'or, 1 Grat. 292. MEDLEY and Ilariston, 1 Grat. 96. MEEK'S adm'r, &c. v. Thompson et als, 8 Grat. 134. MEEM et als. and Cralle et als, 8 Grat. 496. and Rucker, 10 Grat. 506. MENEFREE and Colvin, 11 Grat. 87. MERCER, Ben, et als. v. Kelso, adm'r et als, 4 Grat. 106. MEREDITH, Judge, and Barnett, 10 Grat. 650. MERTENS V. Nottebohme, 3 Grat. 163. MICHAEL and Hampton, Smith & Co., 6 Grat. 151. MICHIE and Wright, 6 Grat 354. MICHAUX'S adm'r v. Brown et als, 10 Grat. blZ. MIDDLECOFF et als. and Luster, 8 Grat. 54. MIDDLETON v. -Johns, et als, 4 Grat. 129. and Harrison, 11 Grat. 527. V. Pinnell, 2 Grat. 202. MILLER and Lowe, 3 Grat. 205. &c. and Wadsworth, &c., 4 Grat. 99. 446 LIST OF CASES, ETC. MILLER and wife and Jeffress et ale, 4 Grat. 472. &o. and Ilaffey, &o., 6 Grat. 454. and Lyons, 6 'Griit. 427. MILLER'S ex'ors a/td Onvd, 7 Gi-at. 18.1. MILLER «. IIolodrnbe'B px'ors et als, 9 Cxrat. bbS. V Junes et alB, 9 Gnit. 584. MILLERS «. Catlett, 10 G, at. 477. , MILLER et als, and Gales, 8 Grat. b. MINOR K. Minor's adm'r, 8 G.at. 1. MITCHELL'S adm'r D. Tnittev and wife, 7 Grat. 136. MOFFATT V. Bowman, Grat. 219. MONROE and Vance, 4 Grat. 52. MONTAGUE and Jennin-s et als, 2 Grat. 350. MONTAGUE'S Case, 10 G.-at. 767. ex'x V. Turpin's adm'x et ala, 8 Grat. 453. MOORES V. White, et als, 3 Grat. 139. MOORE V. Thornton et ala, 7 Grat. 99. V. Moore's, ex'or, et als, 8 Grat. 307. eta U.K. Holt, 10 Grat. 284. MOORE'S adm'r and The dminoQwealth, 1 Grat. 294. MORGAN'S Case, 7 Grat. 592. adm'r et al?. and Allen and Ervine, f' Grat. 60. MORRIS, adm'r v. Morris' adm'r et als, 4 Grat. 293. and Crawford, 5 Grat. 90. V. Peregoy, T Grat. 373. V. Morris, 9 Grat. 037. Ex parte, II Grat. 292. MORRISETT'S Case, 6 Grat. 673. MORRISON'S ex'ors and Peay, 10 Grat. 149. MORRISON V. Speer, 10 Grat. 228. and Downer & Co., 2 Grat. 237, 250. MOSBY'S adm'r et ah. v. Jlosby's adm'r, 9 Grat. 584. MOSELEY V. Moss, 6 Grat. 534. MOSS and Moseley, 6 Grat. 534. MDLLIDAY v. Ma«liir',s adm'r, 4 Grat. 1. MULL'S Cose, 8 Grat. 695. MUIR V. Falconer, 10 Grat. 12. MUNDAY V. Vawter et als. 3 Grat. 518. MURRAY, Caldwell & Co. d. Pennington, 3 Grat. 91. et als. and Cliinn et als, 4 Grat. 348. MYERS & Co. and Disi.n, 7 Grat. 240. MYRICK'S ex'ors and Jones, &c., 8 Grat. 179. V. Epos et als, 8 Grat. 179. NASH 1,. Upper Appomattox Co., 5 Grat. 332. NEAL and Gardner, 9 Grat. 85. V. Logan, 1 Grat. 14. NEMO'S Case, 2 Grat. 558. NELSON and The Northwestern Bank, 1 Grat. 108. NELSON'S adm'r «. Armstrong et als, 5 Grat. 354. ex'or V. Piige et als, 7 Grat. 100. adm'r t). Cornwell, II Grnt. 72-1. NESMITH and wife and McPherson, 3 Grat. 237 NEWBROUGH v. Walker, 8 Grat. 10 NEWBY V. Forsyth, 3 Grat. 308. NEWTON et als. and Alexander & Co. 2 Grtit 266 NICHOLS & Snydor and Ford, 3 Grat. 88. LIST OF CASES, ETC. 447 NICKOLS and Shumaker 6 Grat. 592. & Janes' Case 7 Grat. 589. "■ Campbell, 10 Grat. 560. NICKELL & Miller v. Ilandley i^t als, 10 Grat. 336. NIDAY I. Harvey & Co. et als, 9 Grat 454. NOCK !'. Nock's ex'ova, 10 Grat. 106. NORMAN'S ex'x v. Cunningham and wife et als, 5 Grat. 63. NORTHWESTERN Bank of Va. and Hays, 9 Grat. 127. *. Nelson, 1 Grat 108. NOTTEBOHMS and Mertens, 4 Grat. 163. NOWELL'S ex'or and Isbell's adm'r, 4 Grat. 176. NOWLIN and wife v. Winfree, 8 Grat. 346. NOWLIN'S adm'r et als, v. Scott, 10 Grat. 64. NPYES' ex'x V. Humphreys, 11 Grat. 636. NDCKOLS' adm'r v. Jones, 8 Grat. 267. N OTTER'S Case, 8 Grat. 699. OBENCIIAIN et als. ancZ Jones, and AVife, 10 Grat. 259. O'BRIEN et als. v. Stephens et als, 11 Grat. 610. ODELL and Harman, 6 Grat. 207. OLIVER'S ex'or v. Hallam's adm'r, 1 Grat. 298. ORAKGE Humane Society and Shiflet, &e., 7 Grat. 297. ORICK V. Colston, 7 Grat. 189. OTIS et als. and Carrinf>;ton et als, 4 Grat. 285. OTLEY V. McAlpine's heirs, 2 Grat. 340. OTT'S ex'x V. King et als, 8 Grat. 224. OVERBY and Boyle's adm'r, 11 Grat. 202. OVESEERS of the Poor of Ohio County and Lyie, 8 Grat. 20. of the. Poor of Wood County and WilLird, 9 Grat. 139. of t!.e Poor V. Bank of Virginia et als, 2 Grat. 544. OVERSTRBET et als. and Gray, 7 Grat. 346. OVERTON'S heirs v. Davisson, 1 Grat. 211. PAGE et als. and Nelson's ex'or, 7 Grat. 160. PALMER and Calhoun, 8 Grat. 88. and Jennings, 8 Grat. 70. et als. and Beekloy, 11 Grat. 625. PANNILL, &c. aiid Barber & Co., 6 Grat. 442. PARIS et als. and Cochran, 11 Grat. 348. PARKER'S adm'rs et als. and Jesse et als., 6 Grat. 57. ex'ors V. Brown's ex'ors et als., 6 Grat. '554. PARKER and Wife v. Wasley's ex'or et als., 9 Grat. 477. et als. V. McCoy et als., 10 Grat. 694. V. Cousins, 2 Grat. 372. PARRAMORE v. Taylor, 11 Grat. 220. PARRILL V. McKinley, 9 Grat. 1. PASLEYS V. Engli-sh et als., 5 Grat, 141. PASLEY V. English, 10 Grat. 236. PATES t). St. Clair, 11 -Grat. 22. PATTERSON aiid Crawford's ex'or, 11 Grat. 364. PA I'TESON V. Ford, 2 Grat. 18. PATTON'S ex'ors v. Calhoun's ex'ors, 4 Grat. 138. PAUL ani^Kelley, 3 Grat. 191. PEALE V. Hickle and others, 9 Grat. 437- PEABCB'S Case, 6 Grat. tj69. PEAS' Case, 2 Grat. 629. PEATROSS V. McLaughlin, 6 Grat. 64. 448 LIST OF CASES, ETC. PEAY V. Morrison's ex'ors, 10 Grat. 149. PEERS' Case, 5 Grat. 674. PENCE for, &c. v. Huston's ex'ors, 6 Grat. 304. PENDLETON et als. and Aslier, 6 Grat. 628. PENNINGTON and Murray, Caldwell & Co., 3 Grat. 91. PEREGOY ajid Morriss, 7 Grat, 373. PERKINS' Case, 7 Grat. 373. «. Perkins' ex'or, 3 Grat. 364. Trustee v. Dickinson & Co., 3 Grat. 335. and Woodson, trustee, 5 Grat. 345. et als. and Henley's adm'r, 6 Grat. 615. adm'r v. Hawkins' adm'x, 9 Grat. 649. PERRY'S Case, 3 Grat. 622. PETER et als. v. Hargrave et als., 5 Grat. 12. ' PEYTON et als. v. Stratton et als., 7 Grat. 380. PEYUON'S ex'or atid Cookus, 1 Grat. 431. and Commonwealth, 2 Grat. 393. PI-IAUP, &c. V. Stratton, 9 Grat. 615. ■ PHILIPS et als. -i. Williams, &g., 5 Grat. 259. et als. V. Martinoy's ex'or, 10 Grat. 333. PHIPPEN V. Durham et als., 8 Grat. 457. PHOEBE V. Boggess, 1 Grat. 129. PICKERING'S Case, 8 Grat. 628. PIERCE, assignee, and McGuire et als., 9 Grat. 167. PIGG and Hutcherson, &c., 8 Grat. 220. PINCHARD V. Woods, &o., 8 Grat. 140. PINNELL and Middleton, 2 Grat. 202. PIPER V. Douglas' ex'or, 3 Grat. 371. PITMAN V. Breckenridge & Crawford, 3 Grat. 127. PITTMAN, sheriff, v. R. Staton, 11 Grat. 99. and B. Staton, 11 Grat. 99. PLUMER'S Case, 3 Grat. 645. POINDEXTER, &o. '^. Davis et als. 6 Grat. 481. POINDEXTER'S adm'r v. Prince George Justices, 11 Grat. 190. POLLARD'S heirs v. Lively, 2 Grat. 216; 4 Grat. 73. POLLARD and Trlmyer, 5 Grat. 460. and Washirigton, 5 Grat. 432. V. Lumpkin, 6 Grat. 398. POLLOCK and wifec Qlassell, 2 Grat. 439. POTTERFIELD v. .Coiner, 4 Grat. 55. POWELL'S Case, 11 Grat. 822. POWELL V. Stratton et als., 11 Grat. 792. PRENTICE (feWeissinger t). Zane, 2 Grat. 262. PRESIDENT and Directors of Bank of Va. v. Robinson, 5 Grat. 174. and Directors Northwestern Turnpike Road and Dunning- ton, 6 Grat. 160. PRESTON'S heii-s and Robinett, 4 Grat. 142. PRESTON, T. L., v. J. Preston et als., 4 Grat. 88. and Jesse, 5 Gr^t. 120. ' , and Keith, 5 Grat. 120. PRESTON'S V. MoCall, 5 Grat. 120. PRICE V. Browning, 4 Grat. 68. V. Yia's heirs, 8 Grat. 79. V. Kyle, 9 Grat. 247. PRICE'S heirs v. Price's adm'r, 9 Grat. 45. ex'ors V Ayres, 10 Grat. 575. PRINCE George Justices and Poindexter's adm'r, 11 Grat. 190. LIST OF CASES, ETC. 449 PKINCE George Justices and Richardson's adm'r, 11 Grat. 190. PRYOR V. Duncan et als., 6 Grat. 27. PUCKETT and Whitworth and wife, 2 Grat. 528. PUGH and Souter et als., 9 Grat. 260. PCRCELL and wife v. "Wilson, 4 Grat. 16. V. MoCleary et al., 10 Grat. 246. and Cheshire, 11 Grat. 771. BAGLAND'S adm'r and Glazebrook's adm'r, 8 Grat. 332. RAGSDALE v. Hagy and others, 9 Grat. 409. RAINE et als. v. Bank of Virginia, 4 Grat. 150. RALSTON and McCue, 9 Grat. 430. RAND V. Reynolds, 2 Grat. 171. BAND'S Case, 9 Grat. 738. RANKIN V. Roler et als., 8 Grat, 63. RANKIN'S heirs and Koiner, 11 Grat. 420. ex'or V. Rankin's adm'r, 1 Grat. 153. BATCLIFF'S Case, 5 Grat. 657. READ & Co. and Stainbaok, 11 Grat. 281. REDD'S adm'r et als. and Crump et als., 6 Grat. 372. REED V. Cline's heirs, 9 Grat. 136. REESE V. Hawthorn, 10 Grat. 548. REEVES V. Dickey, 10 Grat. 138. REID and wife and Ross' adm'r, 8 Grat. 229. REID'S adm'r v. Strider's adm'r, 7 Grat. 76. and Strider, 2 Grat. 38. REIGLB and Fari.sh & Co., 11 Grat. 697. REYNOLDS and Griffith et als., 4 Grat. 46. and Rand, 2 Grat. 171. V. Bank of Virginia et als., 4 Grat. 174. RHEA V. Gibson's ex'or, 10 Grat. 215. KIDDICK'S ex'ors and Flemings, 5 Grat. 272. RICE'S ex'or v. Annatt's adm'r, 8 Grat. 557. BICE et als. and Fones, 9 Grat. 568. RICHARDS and Brent, 2 Grat. 539. RICHARDSON and Austin, 1 Grat. 310. and Hopkins, Bro. & Co., 9 Qra,t. 485. RICHARDSON'S adm'r v. Prince George Justices, 11 Grat. 190. RICHESON V. Richeson et als., 1 Grat. 497. RICHMOND and Petersburg Railroad Co. and Hancock, 3 Grat. 328. Fred'g and Potomac R. R. Co. and Heth et als., 4 Grat. 482. RICKS and the 'Jommonwealth, 1 Grat, 416. RIVANNA Nav. Co. v. Dawsons, 3 Grat. 19. ROACH V. Dickinsons, 9 Grat. 154. et als. and Governor for Davis, 9 Grat. 13. V. Gardner, 9 Grat. 89. and the Commonwealth, 1 Grat. 561. ROADCAP and wife v. Sipe, 6 Grat. 213. ROANE and Aylett, 1 Grat. 282. ROBERTS V. Colvin, 3 Grat. 358. V. King, 10 Grat. 184. ROBERTSON and Sharpe, 5 Grat. 518. ROBIN and Binford's adm'r, 1 Grat. 327. ROBINBTT V. Preston's heirs, 4 Grat. 142. ROBINSON and Bank of Virginia, 5 Grat. 174. V. Allen and others, 11 Grat. 785. et als. V. Sherman et als., 2 Grat. 178. cc 450 LIST OF CASES, ETC. ROBINSON and Bailey's adm'x, 1 Orat. 4. ROBINSON'S ex'ors v. Day, 5 Grat. 55. ROGERS V. MeLuer's adm'r et als., 4 Grat. 81. V. Denham's heirs, 2 Grat. 200. ROLER et als. and Rankin, 8 Grat. 63. ROMINE and Cox, &o., 9 Grat. 27. ROOTES' ex'x v. Tomkins' trustees, 3 Grat. 98. ROSSER, ex' or of Wood, v. Depriest et als., 6 Grat. 6. &c. V Franklin, 6 Grat. 1. ROSSETT V. Fishier et al., 11 Grat. 492. ROSS' ex'or v. Haden's adm'r, 7 Grat. 86. V. McLauohlan's adm'r et als., 7 Grat. 86. adm'r v. Reid and wife, 8 Grat. 229. ROSS and Devers, 10 Grat. 252. ROWAN et als. and Healy et als., 5 Grat. 414. ROWANS V. Givens, 10 Grat. 250. RUCKER and Meem, 10 Grat. 506. RUFF V. Starke's adm'x, 3 Grat. 134. RUST'S adm'r and Slagle, 4 Grat. 274. RUST et als. v. Ware, 6 Grat. 50. and Whiting, 1 Grat. 483. et als, and Hutcheson and wife, 2 Grat. 394. SALYARDS et als. and Bryan, 3 Grat. 188. SAMPSON V. Goochland Justices, 5 Grat. 241. SAUNDERS' adm'r v. Commonwealth, 3 Grat. 214. SAUNDERS V. Commonwealth, 10 Grat. 494. SCARBURGH et als. and Wallops' adm'r, 5 Grat. 1. SCHOFIELD V. Cox et als., 8 Grat. 533. SCHULTZ V. Schultz et ala., 10 Grat. 358. SCOTT'S Case, 5 Grat. 697. Case, 10 Grat. 749. SCOTT et als. and Beverley, 4 Grat. 187. and Kelly, 5 Grat. 479. and Nowlin's adm'r et als., 10 Grat. 64. SEAMAN et als. and Dance et als., 11 Grat. 778. SEAMONDS V. MoGinniss, 3 Grat. 319. SEARS et als. and Billups, 9 Grat. 31. SEBRELL and Craig, 9 Grat. 131. SENTER et al. v. Pugh, 9 Grat. 260. SBBPELL and Wild's lessee, 10 Grat. 405. SEXTON V. Sexton, 9 Grat. 204. SHACKLEFORD v. Apperson. 6 Grat. 451. SHANKS et als. v. Lancaster, 5 Grat. 110. SHARP V. Kerns et als., 2 Grat. 348. SHARPE V. Robertson, 5 Grat. 518. SHELDON et als. v. Armistead's adm'r et als., 7 Grat. 264. SHELTON and others' Case, 8 Grat. 592. SHEPHERD, Hunter & Co. v. Frys, 3 Grat. 442. V. ELenderson et als., 3 Grat. 367. SHEPPARD V. Stubbs, 3 Grat. 373. SHEPPARDS V. Turpin, 3 Grat. 373. SHEPPERSON V. Shepperson et als., 2 Grat. 501. SHERMAN et als. and Robinson et als., 2 Grat. 178. SHIFLBTT, &o. v. Orange Humane Society, 7 Grat. 297. SHOEMAKER and Hendricks, 3 Grat. 197. SHUMAKER v. Nichols, 6 Grat. 692. LIST OP CASES, ETC. 451 SHUMATES and Hobbs, 11 Grat. 516. SILLINGS et als. v. Bumeai-dner, guardian, 9 Grat. 273. SIMMONS and Bean et al., 9 Gvat. 389. SIPE and Roadcap and wife, 6 Grat. 213. SITER, Price & Co. v. MeClanachan et als., 2 Grat. 280. SKINKER and "Weaver, 4 Grat. 160. SLACK V. Wood, 9 Grat. 40. SLAGLE V. Rust's adm'r, 4 Grat. 274, SLATER et als. and Johnston and wife, 11 Grat. 321. SLAUGHTER'S adm'r and Tutt, 5 Grat. 364. V. Commonwealth, 2 Grat. 391. SMITH ». Davis, 4 Grat. 50. and Boyce's adm'r, 9 Grat. 704. et als. «. Chapman, 10 Grat. 445. & Burwell and the Commonwetilth, 1 Grat, 553. et al. and Cunningham, 10 Graf. 255. Sheriff, and Hope, 10 Grat. 221. & Carter and Dickinson, 5 Grat. 135. and MoNew, 5 Grat. 84. et als. V. Flint et als., 6 Grat. 40. et als. V. Thompson's adm'r et als., 7 Grat. 112. and Tayloe, 10 Grat. 557. SMITH'S Case, 10 Grat. 734. Case, 4 Grat. 532. Case, 6 Grat. 696. Case, 7 Grat. 593. ex'or V. Spillcr, 10 Grat. 318. adm'r 'v. Charlton's adm'r, 7 Grat. 425. adm'r v. Lamberts, 7 Grat. 425. adm'r v. Thurman et als., U Grat. 752. . adm'r v. Betty, 11 Grat. 752. SNEAD V. Coleman and wife, 7 Grat. 300. SNYDER et als. and Bell's heirs, 10 Grat. 350. SOMERVILLE v. Wimbish, 7 Grat. 205. SOUTHER'S Case, 7 Grat. 673. SPEER and Morrison, 10 Grat. 228. SPENCB V. Bagwell et als., 6 Grat. 444. SPILLER and Smith's ex'or, 10 Grat. 318. SPINDLE and Taylor's adm'r, 2 Grat. 44. SPRAGGINS and Wills, 3 Grat. 555. SPRAULL et als. and Currin et als., 10 GraL 145. SPURGIN and Evans and wife, 6 Grat. 107. et als. and Evans et als., 11 Grat. 615. STAATS V. Board, 10 Grat. 400. STAFFORD v. Carter et als., 4 Grat. 63. V. White, 6 Grat. 93. STAINBACK v. Bank of Virginia, 11 Grat. 260. ». Bank of Virginia, 11 Grat. 269. V. Read & Co., 11 Grat. 281. STARKE'S adm'r and Ruff, 3 Grat. 134. adm'x et als. and Talley et als., 6 Grat. 339. STATON, R., and Pittman, sheriff, 11 Grat. 99. B., V. Pittman, sheriff, 11 Grat. 99. ST. CLAIR and Pates, 11 Grat. 22. and the Commonwealth, 1 Grat. 55b. STEELE V. Levisay et als., 11 Grat 454. STEPHENS V. Hutchinson et als., 6 Grat. 147. 452 LIST OF CASES, ETC. STEPHENS efc als. and O'Brien et als., 11 Grat. 610. STEPHENSON ». Taverners, 9 Grat. 398. STERRETT v. Teaford, 4 Grat. 84. STONE and Wife and Armstrong, 9 Grat. 102. V. Wilson, 10 Grat. 529. STRANGE'S ex'or and George, 10 Grat. 499. STRANGE V. Floyd, 9 Grat. 474. STRATTON et als. and Peyton et als., 7 Grat. 380. and Phaup, &c., 9 Grat. 615. et als. andToweU, 11 Grat. 792. STRIOER V. Reid's adm'r, 2 Grat. 38. STRINGER and Henderson, 6 Grat. 130. and Taylor's devisees, 1 Grat. 158. STUART, &o., and Forkner, 6 Grat. 197. STUART'S ex'ors v. Abbott et als., 9 Grat. 252. STRIDER'S adm'r and Reid's adm'r, 7 Grat. 76. STUBBS and Sheppard, 3 Grat. 373. STUBBLEFIELD v. Beazley, 5 Grat. 51. STUMP, &e. and Bryan, 8 Grat. 241. STURDIVANT et al. v. Birchett, 10 Grat. 67. SUMMERS and Todd, 2 Grat. 167. SUTHERLAND et als. and Laws' ex'ors, 5 Grat. 357. SUTTON V. Sutton, 7 Grat. 234. SWAIN and Gait's ex'or et als., 9 Grat. 633. SWOPE and Mays, 8 Grat. 46. V- Chambers, 2 Grat. 319. TABB'S adm'r v. Archer's adm'r et als., 7 Grat. 408. TAGGART'S Case, 8 Grat. 697. TAIT'S adm'r and Kyles, e Grat. 44. TALIAFERRO v. Franklin, 1 Grat. 332. TALLEY et als. v. Starke's adm'x et als., 6 Grat. 339. TAPSCOTT V, Cobbs et als., 11 Grat. 172. TAVERNER and Emerick, &o., 9 Grat. 220. TAVERNERS and Stephenson, 9 Grat. 398. TAYLOE V. Smith, 10 Grat. 557. TAYLOR V. Beale et als., 4 Grat. 93. and McCanoe, 10 Grat. 580. and Parramore, 11 Grat. 220. TAYLOR'S devisees, v. Burnside, 1 Grat. 165. devisees, v. Stringer, 1 Grat. 158. adm'r, &c. and Beall's adm'r, 2 Grat. 532. adm'r v. Spindle, 2 Grat. 44. TEAFORD and Sterrett, 4 Grat. 84. TEAYS et als. and Davis et als., 3 Grat. 283. THAMER and Forward's adm'r, 9 Grat. 537. THISTLES ex'ors and McClure, 2 Grat. 182. THOMAS' adm'x and Cox and others, 9 Grat. 312. adm'x and Cox et als., 9 Grat. 323. THOMAS V. Dawson and wife, 9 Grat. 531. V. Gaines, 1 Grat. 347. THOMPSON'S Case, 8 Grat. 637. adm'r et als. and Smith et als., 7 Grat. 112. THOMPSON & Teays and James Riv6r & Ka. Co., 3 Grat. 270, et als. and Thornton, 4 Grat. 121. and Griffith, 4 GraJ;. 147. et als. and Gillespie et als., 5 Grat. 132. LIST OF CASES, ETC. 453 THOMPSON and Clough. &o., 7 GvnK 126. et al8. and Meek's adm'r, &c., 8 Grat. 134. V. Govan, 9 Grat. 695. et als. and M. Blair, 11 Grat. 441. THORNTON v. Thompson et als., 4 Grat. 121. THORNTON et als. and More, 7 Grat. 99. et als. and West's adm'r et als., 7 Grat. 177. THRELKELDS v. Campbell, 2 Grat. 198. THURMAN et als. and Smith's adm'r, 11 Grat. 752. TIERNAN'S Case, 4 Grat. 545. TIFFANY and Carroll et als., 9 Grat. 269. TIFFANY V. Kent et als., 2 Grat. 231. TODD V. Summers, 2 Grat. 167. TOLER and Fleming, 7 Grat. 310. TOMPKINS' trustees and Roote's ex'x, 3 Grat. 98. TONCREY and White's adm'x, 5 Grat. 180. TOWNES et als. and French, 10 Grat. 513. TRACEWELLS and Kinoheloe, 12 Grat. 587. TRAVIS' adm'r and Deneufville's adm'r, 5 Grat. 28. TREVILLIAN v. Louisa Railroad Co., 3 Grat. 326. TRICE V. Cockran, 8 Grat. 442. TROTTER and wife and Mitchell's adm'r, 7 Grat. 136. TRIMYER V. Pollard, 5 Grat. 460. TREDGAIN et als. and Beach, 2 Grat. 219. TUCKER et als. and Wayland, 4 Grat. 267. V. Daly, assignee, 7 Grat. 330. TURNER and wife v. Campbell et als., 3 Grat. 77. and Davis, 4 Grat. 432. and Walker, 2 Grat. 534. V. Turner's adm'r, 1 Grat. 11. TURPIN and Sheppards, 3 Grat. 373. , TURPIN'S adm'r et als. and Montague's ex'x, 8 Grat. 45S. TUTT V. Slaughter's adm'r, 5 Grat. 364. TYREE et als. v. Donnally, O^Jrat. 64. V. Wilson, 9 Grat. 59. UHL et als'. Case, 6 Grat. 706. UNION Bank of Maryland v. Beirne, 1 Grat. 226. UNIS and Charlton, 4 Grat. 58. UNITED STATES v. Blakeney, 3 Grat. 405. V. Lipscomb, 4 Grat. 41. UNITED STATES MINING CO. and Crump, 7 Grat, 352. UPPER APPOMATTOX CO. and Nafh, 5 Grat. 332. V. Hardings, 11 Grat. 1. UTZ et als. and Carpenter and wife, 4 Grat. 270. VANCE V. Monroe, 4 Grat. 62. V. McLaugulin's adm'r, 8 Grat. 289. VANDINE'S Case, 6 Grat. 689. VANMETER'S ex'ors v. Vanmeters, 8 Grat. 148. VARNBR'S ex'ors and Masters, 5 Grat. 168. VATHIR V. Zane, 6 Grat. 306. VAUGHN'S Case, 10 Grat. 758. VAWTBR et als. and Mundy, 3 Grat. 518. V. Watt's ex'ors et als., 3 Grat. 518. VIA'S heirs and Price, 8 Grat. 79. VIRGINIA BANK v. Robinson, 5 Grat. 174. 454 LIST OF CASES, ETC. "WADSWORTH et als. v. Allen, &c., 8 Grat. 174. WAITE and Hunters, 3 Grat. 26. WALKER and Newbrough, 8 Grat. 16. V. Turner, 2 Grat. 534. WALKUP and others and Armstrong' s heirs, 9 Grat. 372. WALLER V. Waller. 1 Grat. 454. WALLOP'S adm'r v. Scarburgh et els., 5 Grat 1. WALTON V. Hale, 9 Grat. 194. WARD aiid Archer, 9. Grat. 622. WARDENS and Hagan, &o., 3 Grat. 315. WARDSWORTH, &c., v. Miller, &c., 4 Grat. 99. WARE and Rust et als., 6 Grat 50. WASHBURN and Levasser, 11 Grat. 572. WASHINGTON and Lewis, 5 Grat. 265. WASHINGTON'S ex'or and White. 5 Grat. 645. WASHINGTON v. Lumpkin, 5 Grat. 432. V. Pollard, 5 Grat. 432. WASHINGTON'S ex'or v. Abrahams, et als., 6 Grat. 66. and Brooke, 8 Grat. 248. WASLEY'S ex'or et als., and Parker and wife, 9 Grat. 477. WATSON V. Hurt, 6 Grat. 633. V. Fletcher, 7 Grat. 1. and Fletcher, 7 Grat. 1. and Cleland, 10 Grat. 159. WATTS V. Christian etals., 3 Grat. 518. WATT'S ex'ors et als. and Vawter et als., 3 Grat. 518. WAYLAND V Tucker et als., 4 Grat. 267. WAYS adm'r &c., and Ash, 2 Grat. 203. WEAVER V. Skinner, 4. Grat. 160. and Marsteller, 1 Grat. 391. WEBSTER'S Case, 8 Grat,702. WELCH and Kean, 1 Grat. 403. WELLES V Cole, et als., 6 Grat. 643. WELLPORD et als. v. Chancellor. 5 Grat, 39. WELLING'S Case, 6 Grat. 670. WELLS' adm'r and Clarke, 6 Grat. 475. WESTS' adm'r et als. v. Thornton et als., 7 Grat. 177. WHITE et als. and Moores, 3 Grat. 139, WHITE'S adm'x v. Toncray, 5 Grat. 180. WHITE V. Washington's ex'or., 5 Grat. 645. V. Turner's adm'r, 2 Grat. 502. V. Coleman, 6 Grat. 138. and Stafford, 6 Grat! 93. WHITING V. Rust, 1 Grat. 483. WHITWORTII and wife and Puekett 2 Grat. 528. WIIOLFORD'S Case, 4 Grat. 523. WILCOX and Brooks, 11 Grat. 411. WILD'S lessee v. Serpell, 10 Grat. 405. WILEY et als. v. Givens et als., 6 Grat. 277. ' WILKINSON & Hant and Early, 9 Grat. 68. WILKINSON & Hunt and Friend, q Grat. 31. WILLARD v. Overseers of the Poor of Wood County, 9 Grat. 139. Oveiseers of the Poor, 203. WILLIAMS et ala. and Knisely, 3 Grat. 265. WILLIAMS' Case, 5 Grat. 702". Case, 2 Grat. 567. WILLIAMS, &o., and Phillipps et als., 5 Grat. 259. LIST- OF CASES, ETC. 455 « M. Givens, 6 Grat. 268. V. Williams et als., 11 Grat. 95. WILLIAMSON w. Gayle et als., 4 Grat. 180. WILLIAMSON'S M., Case, 4 Grat. 554. Case, 4 Grat. 547. WILLIAMSON V. Crawford, 7 Grat. 202. ». Gayle et als., 7 Grat. 152. WILLIAMSON'S ex'or v. Goodwin et als., 9 Grat. 503. WILLS V. Spraggins, 3 Grat. 555. WILLS' adm'r v. Dunn's adm'r, 5 Grat. 384. WILSON and Hanna, 3 Grat. 243. et als V. Burfort treasurer, 2 Grat. 134. and Pureell and wife et als., 4 Grat. 16. V. Buchanan, 7 Grat. 334. and Tyree et als., 9 Grat. 59. and Stone, 10 Grat. 529. V. Lazier et. als., 11 Grat. 477. WIMBISH and Somerville, 7 Grat. 205. WINGFIELD'S adm'r a«d Jincey et als., 9 Grat. 708. WINFREE and Nowlin and wife, 8 Grat. 346. WINN et als. v. Cirroll et als., 2 Grat. 227-. WISE V. Lamb, 9 Grat. 294. WITHERS V. Carter, et als., 4 Grat. 407. and Governor for Liggatt, 5 Grat. 24. / V. Hestend, 5 Grat. 456. WOOD'S adm'r and Braxton, 4 Grat. 25. ex'or V. Depriest et als., 5 Grat. 6. WOODS and Friend, &c., 6 Grat. 189. and Friend, 9 Grat. 37. WOOD and Slack, 9 Grat. 40. WOODSON, trustee, v. Perkins, 5 Grat. 345. , and Bowles, 6 Grat. 78. WOOTTEN V. Bragg, 1 Grat.l. WORMLEY'S Case, 8 Grat. 712. Case, 10 Grat. 658. WORSHAM V. Hardawav's adm'r, 5 Grat. 60. WRIGHT and Greers, 6 Grat. 154. V. Miohie, 6 Grat. 354. WYATT and Jordan, 4 Grat. 151. WINN V. Harman's devisees, 5 Grat. 157. WYSOR'S Case, 6 Grat. 711. WYSONG and Kretzer, 5 Grat. 9. YANCEY et als. and Hubson, 2 Grat. 73. YARBRODGH and wife ». Deshazo, 7 Grat. 374. YATES' adm'r and Commonwealth, 9 Grat. 693. YEAGER, ex parte, 11 Grat. 655. ,YERBY and wife v. Lynch et als., 3 Grat. 460. YOUNG'S Case, 4 Grat. 550. YOUNG V. Highland, 9 Grat. 16. YOUNG'S adm'r and Bowyer v. M'Clung et als., 9 Grat. 336. YOUNG for, &c. v. Johnston, 10 Grat. 269. ZANE and Vathir, 6 Grat. 246, and Prentice and Weissinger, 2 Grat. 262. ZANE'S trustees et als. and Johnston, 11 Grat. 552.