UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY w LEGAL APHORISMS BY JOHN WESLEY FRIEND, "f Newport News, Virginia, Bar. • RICHMOND. VIRGINIA : Whittkt Sc Shepperson, Printers. Entered according to the act of Congress, in the year 1908, by John WiSLEY Friend, in the office of the Librarian of Congress, at Wash- ington, D. C. r TO THE HONORABLE JAMES KEITH, Who carries the benediction of thirty-eight consecu- tive YEARS OF HONORABLE AND USEFUL SERVICE ON THE Bench, and who now in the ripe maturity of his ability and learning, is president of the Supreme Court of Appeals of Virginia, his native State, this BOOK is respect FULLY DEDICATED. 76770'! LEGAL APHORISMS. Abatement. P](>a ill abatomeiit, ineliuling plea to tho jurisdiction. If the defendant fail to appear at the return day of the writ (the declaration or hill being properly filed) a conditional judgment or decree nisi goes against him, and his right thereafter to plead in abatement ceases, as under V. C. § 32f)0 in its original form ; but if he enters his appearance at the rt^nrn day of the writ, without more, he thereby pro- longs his right to plead in abatement until the next rules. This must follow, since the rule to plead fixes the next rule- day as the time (V. C. § 3239) and if, at the next rules, he pleads (whether in abatement or in bar) he is not in default; and no ojffice judgment, or decree pro confesso can be taken against him under § 3284, until he is in default. 6 Va. L. Tveg. 484. The order at rules may be as follows: This day came the parties, l)y their attorneys, and the plaintiff, by his attorney, filed his declaration (or bill), and tho defendant having appeared and entered his appear- ance, and having failed to plead, answer or demur, a day is thereupon given the defendants until the next rules to plead to the said declaration (or bill) and the same day is given to the plaintiff there, etc. A pirn in ahntemcnt is 'disfinguishrd from a pica in har by its conclusion, and must conclude regularly. 2 IT. A: ^f. 308: 13 N. 2150: 5 :^^ass. 280; TTow. (U. S.) 213. For 6 Legal Aphorisms. forms of conclusions of the several kinds of pleas in abate- ment, see 4 Minor 1238. Matter in abatement is either intrinsic or extrinsic. In- trinsic matter is where it appears on the face of the writ, or is shown by the pleadings on the part of the plaintiff. For matter so appearing, the court will, ex-offjcio, abate the writ or suit, as the nature of the matter mav require. And ifc will do this at any stage of the suit at which the matter is • brought to the attention of the court in any way, even after verdict on the general issue, unless cured by the pleadings or verdict. Extrinsic matter of abatement can only be shown by plea in al)atement, or suggestion to the court l)y one of the parties, or an amicus curiae ; and the party mak- ing such suggestion, makes it not as a party, but as amicus curiae. Of these extrinsic matters of abatement, some only make the suit abateable; and they must be pleaded in due time, or they cannot be afterwards available to the party in anv wav. Such extrinsic matters making- the suit abateable must, if they exist before the suing out of the writ, and before the proper time for pleading in abatement, be pleaded at that time. If they arise afterwards, they must be promptly pleaded j)iiis darrein continuarice , or the party loses the bene- £t of the plea forever. Other extrinsic matters of abatement are such as abate the suit de facto, and these, even after the defendant has lost the right of pleading them, will abate the suit if they be made known to the court at any stage of the cause, and in any way; and if not made known to the court, and judgment be given eitjier for plaintiff or defend- ant, such matter may be assigned upon a writ of error, as error in fact, for whjcli the judgment will be reversed. And Legal Aphokisms. 7 finally, the same matter may in some cases be pleaded in abatement or in bar at the election of the defendent. Green, J. in Garrard v. Henry, 6 Rand. 117. And see, also opin- ions of eTudges Tncker and Roane in Mantz v. Henley, 2 11. & M. 812, 313. 1 Rob. (old) Pr. 162. PJea in Ahatemeni of an Attachment. — In Mantz v. Henley, 2 H. & ^L 308, the defendant pleaded that the plaintiff ought not to have or maintain his action and attach- ment against him because, &c. ; concluding with a verification and a prayer of judgment whether ''the said plaintiff ought to have and maintain his attachment and action aforesaid for his debt aforesaid, &c." To this plea the plaintiff demurred. Roane, J. said the plea w^as defective in point of form, in not having a proper conclusion. It ought to have demanded that the attachment be quashed. And being a plea in abate- ment, the defect was fatal on general demurrer. He further says that the plea in question is substantially a plea in abatement, though in point of form it approaches very nearly to a plea in bar. A plea in abatement is one ''which shows cause to the court why the defendant should not be impleaded, or, if impleaded, not in the manner and form he now is. 1 Bac. Abr. 1. This definition determines the present to be substantially a plea in abatement. The pendency of another action against or by the same parties, for the same cause, may be pleaded in abatement; and the plaintiff, after such a plea, cannot avoid its effect by discontinuing the first action 8 Legal Aphoeisms. which was pending when the plea was filed. 4 Minor 760. The object of the rule is to prevent a party from being un- necessarily vexed with two snits when one would suflice to afford him the redress to which he is entitled. Broom's Leg. Max. 347; 2 Strob. 1216; 10 Bing. 322. And the modern practice is to look into each case, and to determine as a matter of fact whether the second suit was unnecessary or not. 45 Mo. 294; 88 Va. 549. A simple and regular course is to have, at the foot of the plea, a brief affidavit signed by the defendant and cer- tified by a justice (or notary public) as follows: C. D., the defendant in the cause above mentioned, maketh oath and saith that the plea above written is true in substance and in fact. CD. Sworn to this day of before me, a Justice of the Peace for the County of E. F. 5 Rob. Pr. 118. A faulty plea to the jurisdiction was gotten rid of by motion to strike out in 95 Va. 486. Pleas in abatement in general, other than pleas to the jurisdiction of the court, may be pleaded by attorney, be- cause the jurisdiction of the court is not thereby dis^turb-vl. 1 Chitty. PI. (7 Am. Ed.) 490. A Plea in Abatement by a Corp\oration. — Mr. Robinson in his practice, Vol. 5, p. 23, gives the form for a plea by attorney and cites Chitty's Pleading, but the West Virginia court in the case of Quarrier Tr. v. Peabody Ins. Co., 10 W. Leoal Apiionis>rs. 9 Va. HOT, has held that the plea must be made hy the presi- dent <»f the eunijjaiiy and Jiot by attorney, and that the plea shoidd eommence and conclude, Company by its president. As bearing on the question, see !);} Va. 274; 102 Va. -483. Defense to action prematurely hrought, how made. — ]\Ir. Chitty (1 Chitty's PL 44)5) says, that where a suit is pre- maturely brought, it is ground of demurrer or nonsuit. This appears to me to be the true rule. Sutherland, J., 3 Wend. 172; in Bacon v. Sheplin (111.), 56 X. E. 1123, it is held that under the general issue of non assumpsit the defendant may prove the non-maturity of the debt sued for, and need udt jjlead it in abatement except where after maturity of the debt, for a valuable consideration, the creditor has agreed to extend the time of payment, in which case the new agree- ment must be set up by a plea in abatement. Va. L. Keg. 123, note. A plea that an action has been prematurely brought nuist be in abatement, because such matter only goes to the jilain- tiff's present right of action, as when the time for brimiing suit has arrived then the action could be maintained. If such matter be pleaded in l)ar the jdea may be stricken out or held bad on demurrer. Xorris v. Scott (Ind), 32 N. E. 103. In some cases, as where the fact that the action has been prematurely brought appears on the face of the jileading, the remedy is by demurrer, but where extrinsic matter is relied on to make such fact a.jipear, it is necessary to jilcad the same in abatement. Idem. S. C. 33 X. E. 227: Hogg's n. cl' F. 168. 10 Legal Aphorisms. Abbreviations. Alex. County f-or Alexandria County, 14 Gratt. 318. Etc., effect of its use. Y5 Va. 384 ; 1 Cow. 213. C. P. C. appended to constable's receipt, 3 Gratt. 293. Absent Defendants. In view of the fact that the proceeding by publication is allowed against an absent defendant who may never have heard of the demand, the greater is the reason for requiring some proof to be exhibited. The court is to be satisfied of the justice of the demand, and when satisfied of this, "may order the bill to be taken for confessed." 2 Rob. (old) Pr. 326. There is nothing in the Virginia Statutes to sanction a decree against absent defendants without satisfactory proofs. Sands' Suit, 414. Accord and Satisfaction. Mr. Minor says (4 Minor, last Ed. 770) that under the plea 'of nil debet the defendant may prove at the trial accord and satisfaction, and on page 774 he says that under the plea of non-assumpsit in all actions of assumpsit, any matter of defence whatever (with a few exceptions, the same as in the case of nil debet, ante, p. 770), &c., have been admitted. But in the case of McGuire v. Gadsby, 3 Gall, on p. 237 (cited in 7 Rob. Pr. 550) the court says: It was truly said by the counsel, that an accord cannot be given in evidence, but must be pleaded ; and he might have added, that it must be pleaded with satisfaction,. too; that is, that the thing substituted has been performed. This was said in an action of debt. Mr. Greenleaf says, 2 Green Ev. § 29: In the LK(iAI, AlMlOUISMS. 11 United States, an aocord with satisfaction may Ik- ;[riv<'M in evidence under the (general issue in assumpsit, and in actions on the case; hut in debt, covenant, and trespass it nm-t he specially pleadtd. The }>!( a is that, "after the making of the promises in the declaration mentioned" (in assumpsit) or "after committing- the said supposed grievances in the dechir- ation mentioned" (in ease) or trespass (in tres[)ass) or ''after the making of the said writing obligatory" (in d bt or covenant) "to wit, on ».Ve., and before (or after) the commencement of this suit, he, the said (defendant), deliv- ered to the plaintiff, and the plaintiff then accepted and received of and from the said (defendant) (here describing the goods or things delivered), of great value, in full satis- faction and discharge -of the several promises" (or damages, or d(^l)ts and moneys, as the action may be) ''in the deebira- tions mentioned, and of all damages by the plaintiff sus- tained by reason of the non-performance" (or non-pa;s^nent, as the action may be) "thereof. And this," kc. The usual form of the rei)licHtion is by protesting the delivery of the thing, and traversing the acceptance X)f it in satisfaction. Chitty's Prac. 205, 444a, 619; Story PL 120, \:A\; Stephen on PL 2:J5, 280; 2 Green Ev. § 2Sn. 1. The form of a repli- cation is laid down thus in :5 Chitty PL (7 Am. E(L) lir)<">: Predudi non, as ante, 1145, first form (which may l)e omitted in Virginia, V. C. 3205). Because he saith that the said defendant did not d(>liver to the said plaintiff", the said pi})e of wine (^or if a bond were pleaded, say ''make and seal, and as his act ami i\viH\, deliver to the said plaintiff" the said supposed writing obligatory) in th(> said jilea men- tioned, in full satisfaction and di>eharge ^f the said several 12 Legal Aphorisms. promises and uiidertakiiigs in the said declaration mentioned ; in manner and form as the said defendant hath above in his said plea in that behalf alleged. And this the said plaintiff prajs may be enquired of by the country, &c. Account. Open account.— An open account is one that is continuous or current, uninterrupted or unclosed by settlement or other- wise, consisting of a series of transactions ; also, one in which some item in the contract is left open and undetermined by the parties, in which sense it may exist whether there be but one item or many, but if a single claim or contract is certain and fixed in all its terms it cannot be said to be an open account. 1 Cvc. 363. See, also, 59 Texas 369. An account stated is an agreement between persons who have had previous transactions, fixing the amount due in respect of such transactions, with a promise either expressed or implied on the part of the debtor to pay the balance as- certained to be due. The minds of the parties must meet as in making other agreements, and they must both assent to the account, and the balance, as correct. An account stated is not, however, absolutely conclusive on the parties. It establishes prima facie the accuracy and correctness of the items, and nn.less this presumption is overcome by proof of fraud, mistake, or error, it becomes conclusive ; Imt the converse of this proposition, namely, that an account stated may l)c ii!i]>eached by fraud, mistake, or error, is very well settled. See on this subject the valuable note and authoritips there cited, by ^l\\ Freeman to Lockwood v. Thome (X. Y.), G2 Am. Dec. 85; also, Perkins v. ITart, 11 Wheat. 237. Tn Q Lp:gal Ai'iioKlbMS. V: the latter case, it is said, in speaking of the conclusiveness of a settled account, "If it be confined to particular items of account, it concludes nothing in relation to other items not stated in it." Keith, P., in Camp v. Wilson, 97 Va. 274. The consideration fur the promise is the stating of the ac- count. 3 Kob. Pr. 231. An account stated implies a promise to pay on request so that any subsequent promise to pay diifering in its nature therefrom, ex. gr. to pay on a particular day named, is nudum pact tun, unless made upon a new consideration. Broom's Com. 327. Ac.kxowledgme:xt. Cannot be altered after deed is recorded. 1 Peters 329. Actions. Where a suit is prematurely brought, it is ground of de- murrer or nonsuit (1 Chitty's PI. 443.) This appears to me to be the true rule. By the court, 3 Wend. 172 ; but it is said, 13 X. E. 156, that the objection must be made by plea in abatement as entered, see alnitement. Defense to action against wrong party with same name as the plaintiff, 27 Gratt. 256. Wherever a cause of action exists, a right of action in a court of law is incident thereto, and inseparable therefrom, even by the agreement of the parties. 14 Gratt. ;>13. Where- ever the common law gives a right or prohibits an injury, it also ffives a remedv bv action. 3 Blackstone Com. 123; 24 Mass. 550. Commencement of action, what is, 5 \:i. ].. Reg. 270; 6 Idem 700. Bar, Chy. Pr. 140 n. G ; 3 K..b. Pr. CIO; V. C. 3359; 93 Va. 43S ; 12 Va. L. Reg. 075. 14 Legal Apiiokisms. When separate or successive actions, growing out of the same contract or account, or growing out of the same cause, may and may not be brought and the effect. 20 Gratt. 367; 20 Gratt. 285; 15 Pick 415; 19 Wend. 207; 13 Wend. 645; 8 Wend. 492 ; 1 Wend. 488. It would seem to be a principle of natural justice, that when a loss has happened, he, through whose means it hap- pened, should sustain it, although innocent, rather than he who is not only innocent but wholly without imputation of negligence, 17 Mass. 43 ; but the plaintiff mut^t come pre- pared with evidence to show that the intention was unlawful, or that the defendant was in fault; for, if the injury was un- avoidable, and the conduct of the defendant was free from blame, he will not be liable. 2 Greenl. Ev. §§ 85 to 92; 60 Mass. 295-6. On a decree. 2 Eob. Pr. 124. On judgment of another state pending an appeal. 75 Ya. 821. On obligation for the payment or delivery of a mere commodity. 3 Eob. Pr. 373 ; 7 Wend. 313. Is special de- mand before action necessary. 21 Gratt. 631, Oil promise by one for whose benefit a promise or con- tract was made to another. 4 Minor 451 ; 17 Mass. 404; 2 Eob. Pr. 307; 1 Johns. 130. On promise to creditor to pay him debt of another. 5 Tlill, 614. On b.iiid to indemnify. 8 Wend. 452; 6 Wall, 94; 131 Mass. 100. On contract l^y which goods are sold to 1)e ])ai(l for by note ryr 1»ill at a future day. 21 Wend. 90; 175. Legal Aimiorisms. 15 For (lobt navablc in instalments. 22 Gratt. 647 ; 1 C'hittr. PL 116, 134, 129; 19 Wend. 208; 15 Pick. 413. For part, balanee not due. 22 Gratt. 647. Action by debtor on promise of third jiarty to him to pay his debt. V. C. 2415; 21 Gratt. 96; 13 Gratt. 206; 131 Mass. 207; 119 Idem. .VK], r>07; 2 Rob. Pr. 116; 3 Idem. 618, 438; 19 Wend. 423; see 94 Va. 236; 95 Va. 120. On a parol contract which formed a part of or was con- comitant with a bill of sale. 2 Gratt. 542. For goods obtained under false pretences, under color of a purchase, against vendee or his assignee. "1 Chitty. PL 172. For fraudulent representations. 11 Wend. 374. On note payable to party by wrong name. 61 ^NFass. 114. For discharge without cause, where employment for a term. 24 Gratt. 521; 2 Denis 609; Michies note to 27 Gratt. 455. For money delivered in sealed envelope to be given to third party. 11 AVend. 25. For deposit to secure bargain. 1 Chitty PL 388. For injury to horse resulting from injury from being driven beyond place designated. 57 Mass. 326. Against druggist for negligence. 23 111. App. 244; 27 La, (Ann.) 717; ^2 T( x. ;547 ; 133 Monroe 227 S. C, 56 Am. Dec. 563, 41 Am. R. 728. By B. for money paid to C. by A. to be paid to him. 1 Gray 322; 14 Pick. 377; 17 Mass. 402. By seller against purchaser from agent who did not dis- close agency. 2 Gratt. 247. By third, jierson on promise to second person to pay 16 Legal Aphorisms. third person. 3 Denis 45; 7 Cush. 337; 115 U. S. 508; 4 Denis 98; 150 Mass. 52; Mete, on Cont. 237. By sister for services as housekeeper. 2 Denio 149. Bv son-in-law for nursino- wife's father. 3 Rand. 559. On verbal contract to pay, for work and materials, in land, 79 Va. 302 ; 38 K". E. R., 427, 436 ; Siith. Dom. 453. Against bailees, attorneys, &c., for negligence. 21 Wend 30. Form of action on contract completed and accepted. 94 Ya. 734. Defense to action against wrong party with same name. 27 Gratt. 256. ADMISSIOi\^S AND DeCLAKATIONS; A parol admission by a party to a suit is always receiv- able in evidence against him, although it relate to the con- tents of a deed or other written instrument ; and even though its contents be directly in issue in the cause. 21 Gratt. 20. The acknowledgments of parties, whether made in ex- press words, or inferred from acts, are always competent evidence against them. Ordinarily they are open to contradic- tion or explanation and may be proved to be untrue. 41 Mass. 119-120. Instances of conclusive admissions. Idem. The answer of a defendant in equity is competent evi- dence against the same defendant in a suit at law against him, although the plaintiff at law was not a party to the suit in equity. 6 Rand. 541 ; 25 Ala. 653 ; 3 J. J. Marshall 103. A party is not bound by the legal consequences of the facts stated by him. It is for the court to judge what are those legal consequences. 17 Gratt. 167; and a verdict con- Legal Aphorisms. 17 trary to facts admitted by the parties upon the record, can- not be the foundation of a judgment, against the effect of the admission of the party on the record, such admission being higher evidence of the truth than the verdict of a jury. 3 Rand. 61. Adverse Possession. Possession may be made out by proof of actual settlement and occupancy, or by such open, notorious and habitual acts of ownership importing the use and enjoyment of the prop- erty, and equivalent to actual occupancy, or by proof of such actual occupation and enjoyment of another portion of the tract claimed by him of which the disputed premises is also parcel, 11 Gratt. 426; or by evidence of reputed ownership, 101 Va. 794. Adverse possession for the statutory period confers title superior to any paper title. It not only deprives the former owner of his remedy, but passes title to the occupant, and the latter may maintain a bill in equity against the former to remove the cloud on the title created bv the latter's re- t corded deed. Burk's xA.bs. of Lectures on Conveyancing, page 1, citing Sharon v. Tucker, 144 U. S. 544; 81 Va. 668 ; 27 W. Va. 468. Affidavit. Read as deposition, no objection being made. 25 Gratt. 134; 94 Va. 252. Agency. An agency may be constituted by an express limited authority to make such a contract, or a lariror authoritv to 18 Legal Aphorisms. make all falling within the class or description to which it belongs, or a general authority to make any; or, it may be proved by showing that such a relation existed between the parties as by law would create the authority ; as, for instance, that of partners, by which relation, when complete, one bcr comes by law the agent of the other for all purposes neces- sary for carrying on the particular partnership, whether general or special, or usually belonging to it ; or the relation of husband and wife, in which the law, under certain circum- stances, considers the husband to make his wife an agent. In all these cases, if the agent, in making the contract, acts on that authority, the principal is bound by the contract, and the agent's contract is his contract, but not otherwise. This agency may be created by the immediate act of the party, that is, by really giving the authority to the agent, or representing to him that he is to have it, or by constituting that relation to which the law attaches agency ; or it may be created by the representation of the defendant to the plaintiff, that the party making the contract is the agent of the defendant, or that such relation exists as to constitute him such ; and if the plaintiff really makes the contract on the faith of the de- fendant's representation, the defendant is bound ; he is es- topped from disputing the truth of it with respect to that contract ; and the^epresentation of an authority is quoad hoc, precisely the same as a real authority given by the defendant to the supposed agent. This representation may be made directly to the plaintiff, or made publicly so that it may be inferred to have reached him, and may be made by words or conduct. Pollock, C. B. 15 M. &. W. 527; 2 Rob. Pr. 331. Legal Apiiokisms. 19 Agreement. All agreement is the result of the inntnal assent of two parties to certain terms, and if it is clear that there is no consensus, what may have been written or said becomes im- material. Lord Westbury in Chemock v. The Marchioness of Ely, 4 De G. J. & S. 638. When said to be open, so that no recovery can be had under the indchitatus counts in assumpsit. See Assumpsit. Agreements of Counsel. Form for introduction of evidence. "The defendants might in making their defence to said (motion), give in evi- dence, without any pleading filed by them, any matter which could be given in evidence under any special plea in bar good in law; and that the plaintiff might give in evidence, by way of rebuttal, any matter Avhich could be given in evi- dence under any replication that might be made to such special plea in bar as aforesaid." 22 Gratt. 111. "This paper, it is agreed, shall avail as much as if the testimony had been given by in a dciX)sition after due notice, but the testimony is excepted to as illegal and incompetent. It is not admitted that such testimony is evi- dence in this cause for any purpose." Form for hearing common law causes together.* 100 Va. 144. Where a chancery cause was pending and an action of ejectment was brought, a decree was entered in the chan- cery cause, which provided that all questions of law and fact affecting the title of the laud in the bill and proceedings mentioned might and should be adjudicated in that suit. 101 Va. 701-2. 20 Legal Aphorisms. Alimony. Allowed without asking divorce. 1 Minor 308 ; 7 Va. L. Eeg. 220. Allegata et Probata. Averments without proof and proof without averments are equally unavailing. 10 Wall 302 ; 95 Va. 375 ; 94 Va. 100. Instances in equity. 2 Eob. (old) Pr. 311. There are two sorts of allegations, the one of matter of substances which must be substantially proved ; the other of description which must be literally proved. 3 Rob. Pr. 563, 567. Amendment. Plea in abatement is a part of the record by which amendment mav be made. 16 Peters 141 : 5 Eob. Pr. 94. Must be consistent with the count or counts originally made and be for the same cause of action. 2 Pick. 425. Another Suit Pending. Form of rule in the chancery suit, requiring plaintiff to elect: On the motion of the defendant, a rule is awarded against the plaintiff requiring him to elect by the next term of the court, whether he will prosecute the action at law, (describing it) or the chancery suit in which he filed his bill in this court against at the .rules, 19. . . ., for the same matter involved in said action, the court being of oj)inion that the said plaintiff cannot prosecute both said action and said suit. And this cause is continued until the next term of the court. 81 Va. 67. Apparel. See Common Carriers. Legal Aphorisms. 21 Appeal axd Writ of Error. Proper order on reversal when money has been paid. 16 Graft. 362; 5 Gratt. 272. When the chances are equal that the verdict resulted from the error of the jndge, a new trial will be granted. 27 Gratt. 452. A writ of error may be brought to reverse his own judg- ment, if erroneous or given for a less sum than he has a right to demand. 18 Gratt. 242. Amount to give jurisdiction. 10 Va. L. Reg. 338. When a question of fact is passed upon by the jury and the evidence is conflicting. Barbour v. Melendy, 88 Va. 595, citing Snoufer v. Hansbrough, 79 Va. 166 (issue out of chancery) ; ]\ragarity v. Shipman, 82 Va. 784 (a com- missioner's report). In Shipman v. Fletcher, 91 Va. 477, it is said that the verdict in an action of law, in such cases, is conclusive. Argument of Counsel. Comment on failure of adversary to examine a witness who is in court. It is not improper for the trial court to permit counsel, in argiiment before the jury, to comment on the fact that the other party has not called and examined a material witness summoned on his behalf, and present, and to ask such question as may be proper to lay the founda- tion for such comment. But such matters are largely within the discretion of the trial court. 16 S. E. (W. Va.) 602. It is urged by the plaintiif, that the jury might draw infer- ences from the fact that the engineer and firemen w^ho were in charge of the train at tlu^ time of the accident were in 22 Legal Aphorisms. court, aud not called by the defendant. This would have been so, if the plaintiff had introduced evidence tending to sustain her claim ; but she could not prove her case by making allegation, and asking the jury to consider them proved be- cause, if they were not true, the defendant had the means of showing it. These witnesses might have been called by either side. 134 Mass. 502; see, also, 32 Gratt. 649; 54 Fed. 481; 140 Fed. 225; 49 Am. St. K. 400; TO Id. 350; 144 TJ. S. 165 ; note 602 of Cowen & Hill to Phil. Ev. Vol. 1. Assignments. Are rights of action for personal injuries assignable in Virginia. 3 Va. L. Reg. 608. Order not specifying fund out of which it is to be paid is not an assignment. 102 Ala. 537 ; 56 K. J. Eq. 187 ; 6 Ohio 48 ; 21 Oregon 202 ; 68 Tex. 22. Order on particular fund: But, as was said by Tucker J. in Brooks v. Hatch, 6 Leigh 534, the drawee, though he is the drawer's debtor, is not bound to accept his draft against his own will. The creditor has no right to compel his debtor to become debtor to another man (our statute au- thorizes this in the case of assignments of assignable securi- ties). The drawee may, therefore, refuse to accept; and in that case he is not liable to pay at all . . . And if accept- ance of the order be refused, three courses remain for the holder: he may either return it, in which case the parties are in statu quo ; or, he may sue the drawer upon it, the drawee having refused to accept it ; or, he may retain it, give notice to the person on whom it is drawn not to part with the fund and sue in equity for its recovery. 81 Va. 832. Legal Aphorisms. 23 The order mav be on a fund not in existence. 94 Va. 434 : 102 Va. 728. Orders for parts of a debt to different parties enforced in equity. 40 W. Va. ; ^0 Va. 833 ; S. C. 38 ; S. E. 538. Payee must be duly diligent to collect or drawer is dis- charged. 5 Eob. Pr. 565. To what extent payee is charge- able. Idem. When limitations begin to run against assignee. 1 Rob. Pr. 477 ; 9 Leigh 473. An assignee is the purchaser for a valuable consideration of all the securities of the assignor and of all his remedies. 27 Gratt. 837. In conveyances it is advisable to insert a clause by which the grantor shall expressly assign to the grantee the benefit of any covenants of title held by him of his predecessor. 7 Va. L. Reg. 69. Both deeds of trust and mortgages are regarded in equity as mere securities for the debt, and whenever the debt is assigned, the deed of trust or mortgage is assigned or transferred with it. The same principles apply to the vendor's lien resulting from the retention of the legal title. 25 Gratt. 453; 27 Gratt. 837. The assignee has three remedies: An absolute right to resort to the debtor himself; 2nd, to the lien u}X)n the land ; and 3d, contingently to the assignor himself. The loss of the latter remedy, by the want of due diligence, can no more affect the recourse to the land than it can affect the right of reverting to the debtor himself. The assignment of the bond (or note) is ipso facto an assign- ment of the lien. Having once vested by the assignment, that lien is not divested by the failure to sue the debtor. The 24 Legal Aphorisms, assignee having two remedies, both absolute and undoubted, may resort to either. 25 Gratt. 457. Assumpsit. Indebitatus Count. — What it is and what it covers. 1 Chitty. PL 373. When several counts, declaration must aver that plain- tiff has not paid the several suras of money aforesaid, and every part thereof. If this be not done but the breach charged at the end of the last count be, that he hath not paid "the said sum of money," and it appear upon demurrer to evi- dence, that all the evidence adduced by the plaintiff applies only to the first count, judgment ought to be given for the de- fendant. 5 Munf. 196; accord 4 Rob. Pr. 508. And it would seem that the same result would follow from proper instructions from the court. Recovery on check or note on common counts. 8 Gratt. 114, where note was filed in place of the account. 93 Va. 686; 28 Gratt. 174; 4 Rob. Pr. 548; 13 Pet. 302; see 4 Minor 695, particularly on count for money lent; 2 Leigh 198. Under a general indebitatus count a common promis- sory note may be given in evidence wnth proof of execution and of the consideration. 2 Johns R. 235 ; and a note pay- able in specific articles is admissible under the money counts. 2 Johns R. 235 ; 7 Wend. 311. Where one man has paid, under legal compulsion, money which ought to have been paid by another, or where, under such compulsion, the property of one has been taken to dis- charge the debt of another, a remedy is afforded by this ac- tion in its most general form. 8 T. R. 308; 10 Leigh 351. Legal Aphorisms, 25 Money had and received. The action of indehitdtus as- sumpsit for money had and received will lie whenever one has the money of another which he has no right to retain, bnt which ex equo et bono, he should pay over to that other. It now embraces all cases in which the plaintiff has equity and conscience on his side, and the de- fendant is bound by ties of natural justice and equity to refund the money. In such a case, no express promise need be proved, because from such relation between the parties the law will imply a debt and give this action founded on the equity of the plaintiff's case, as it were upon a con- tract, quasi ex contractu, as the Roman law expresses it, and upon this debt founds the requisite undertaking to pay. Per Buller, J., 2 T. R. 370 ; 16 Gratt. 232. Goods sold and delivered : Delivery express or construc- tive must be proved. 3 Hill 141. In an action for money paid, the recovery is the precise amount paid. 'IQ Gratt. 460. When to sue in case and trover (or one of them) and when in assumpsit. 1 Chitty PI. 164; 3 Rob. Pr. 399; 97 Va. 514. Where there has been a tortious taking of his property he may bring trespass or trover, or he may waive both and bring assumpsit for the proceeds when it shall have been converted into money. 5 Pick. 197. There must be a tort to waive. 10 Pick. 161. And when a party waives the tort and sues for money had and iTccived, his recovery is limited to the money actually received. 3 Rob. Pr. 399 ; 61 Mass. 444; 2 Greenl. Ev., see 117. Instances of waiving tort and bringing assumpsit. 16 Gratt. 232; 20 Id. 290. 26 Legal Aphoeisms. Declaration must show consideration positively averred. 98 Va. 222. Foreign bills of exchange, negotiable notes upon the same footing and other promissory notes constituting ex- ceptions to this rule. 1 Rob. (old) Pr. 146; V. C. 2852. And must allege promise to pay, the form of the averment being the same on positive and implied promises. 4 Rob. Pr. 231 ; 46 W. Va. 918. And where there are several counts, in the general conclusion say: has not paid the sev- eral sums of money and every part thereof. 5 Munf. 196; 4 Rob. Pr. 508. Verdict. When the jury allow credits they ought to be deducted from the amount owed and a verdict found for the residue in damages. 1 Rob. (old) Pr. 367. Where there is a special agreement which is open and subsisting at the time of action brought, plaintiff cannot recover upon the indebitatus counts — a special count on the agreement must be laid. An agreement is open and subsist- ing where it has not been wholly performed by the defendant, or its further execution has not been put an end to, before its completion, by the defendant, or, by the agreement of the parties; and where the agreement embraces a number of distinct subjects which admit of being separately executed and closed, it must be taken distributively, each subject be- ing considered as forming the matter of a separate agreement after it is so closed, and recovery may be had under the in- debitatus counts for the subjects which are not open at the time of action brought while there can be no recovery on those subjects which remain open. Perkins v. Hart, 11 W^heat. 237 ; 6 L. C. P. 467 ; see also 2 Rob. Pr. 462. The special contract continuing open, the plaintiff must state that contract and the breach of it. 2 Rob. Pr. 464. Legal Aphorisms. 27 Use and occupation: W C 2787 practically the same with 11 Geo. 2 ch. 1!); 1 Cliitty PL 377. Action for use and occupation lies where the agreement is by deed in words not indicating an actual demise. 1 Chitty PI, 118. And against a tenant holding over after the expiration of a demise by deed, to recover rent accruing after the end of the term. 1 Chitty PI. 378. But cannot be sujt- ported when possession is adverse, and the relation of land- lord and tenent never existed, the action then is ejectment or trespass. 1 Chitty PI. 121. Action for use and occupation proceeds on the ground of contract. It will not lie against a trespasser nor against his personal representative. 2 Rob. Pr. 381. Attachment. It would seem fitting and only just to the memory of that great lawyer and eminent jurist, the late Judge William T. Joynes, to head this title with this statement. In the interval between his incumbencies on the bench of the Supreme Court of Appeals of Virginia, he was elected a member of the Legislature. LTpon his return to Petersburg, after its adjournment, he w^as asked in my presence why he had consented tu go. He replied in substance, that he had prepared with great care an attachment law^ which he w'anted to donate to his native State; that he introduced the bill, and that when it came from the committee he did not recognize it ; that it was further amended on its reading, and, as finally passed, the attachment law was in a worse shape than before. John W. Friend. 28 Legal Aphorisms. "To hinder, delav or defraud" means actual fraud, as distinguished from fraud in law, or constructive fraud. 87 Va. 472; 1 Kob. Rep. 131; 11 Gratt. 561; 88 Va. 980; 60 K E. 851; 83 Am. St. E. 142; 112 Fed. 505; 8 Bank E. 455. But the fact that a conveyance is without valuable consideration raises the presumption of fraud in fact. 11 Gratt. 561 ; 1 Eob. Eep. 131-138. Form of memorandum where there are garnishees. 103 Va. 256. Foreign, is not a proceeding in rem, only quasi in rem. 2 Brock. 131. Second attachment must be levied by same officer levying the first. 5 Mass. 271 ; 67 Tex. 615. Attorney at Law. Liable for costs of suit brought in fictitious name or in the name of a party without his privity or consent. 11 Gratt. 24. Professional statements of counsel are to be regarded as affidavits. Eice v. Griffiths, 9 Iowa 539. When he desires to quit his client he must give him reasonable notice. Although an attorney who undertakes a cause is not bound, at all events, to proceed with it if he is not supplied with funds, yet an attorney who has under- taken a defence with a view to trial, cannot abandon it on the eve of the assizes without giving his client a reasonable opportunity of resorting to other assistance. 1 Eob. Pr. 448. Attorney's fees. Infants' contracts, attorney's fees, necessaries. 8 Va. L. E. 688. In suits or actions for in- fants. 8 Va. L. Eeg. 138. Lien of attorney for his fees. 2 Legal Aphorisms. 29 Eob. Pr. 519; 36 W. Va. 141 S. C. ; 14 S. E. 456; 4 Minor 210; 3 A. & E. Ency. of Law (Xew Ed.) 447. As elements of damages. 8 Va. L. Reg. 512. Auction. Sale by; how made, and when complete. 2 Rob. Pr. 415. Auctioneer. Liability for stolen goods. 22 Wend. 285. Averment. Holpen bv, i. e., bv extrinsic evidence. 2 Phil. Ev. 751; 21 Wend. 659. Bailment. Certainly before a sale can be made by the pledgee, with- out judicial proceedings, he must give reasonable notice to the debtor to redeem. Such notice is indispensable. 2 Kent's Com. 58*2, margin; Stearns v. Marsh, 4 Denio 227. So, also, reasonable notice must be given to the debtor of the time and place of sale. Id. 2 Story's Eq., sec. 1008. "The creditor will bo held at his peril to deal fairly and justly with the pledge, both as to the time of the notice and the manner of the sale." 2 Kent's Com. supra; 22 Gratt. 261. But he may also bring an action on the contract or for the money. 3 Hill 218. Bailee's right of action. 8 Va. L. Reg. 75. General deposit in bank is not a bailment. 98 Va. 278; 99 Va. 54; 100 Va. 311. Though we call it a deposit, it is a loan, and not a bailment. 18 Gratt. 512. Declaration upon a special contract of bailment and joinder of counts in indebitatus assumpsit with count setting out the special agreement, 9 Gratt. 184. 30 Legal Aphorisms. Bill of Paeticulars. A bill of particulars is an amplification, or more particu- lar specification of the matter set forth in the pleading. 4 Eob. Pr. 889. It is not to be construed with all the strictness of declarations. We ought to give particulars of demand rather a liberal than a restraining construction. Id. 900. Bill of Exceptions. A writ of error did not bring up for review the evidence on the trial and the decisions of the judge there until the statute of Westminster 2, ch. 31, gave a bill of exceptions. Tidd's Pr. 787; 25 Wend. 167. Sufficient, when court refuses to receive any evidence on the subject, without giving names of witnesses or stating the evidence in detail. 6 Va. L. Reg. 34. Evidence may be made part of the record by consent of parties, without its being made a part of the record by any order or act of the court. 23 Gratt. 353. Taken in a chancery cause. 10 Gratt. 208. Bona Fide Purchaser. Defence cannot be made by demurrer; it must be made by plea or answer, 83 Va, 415. A party seeking the aid of a court of equity for relief against a bona fide purchaser, a legal title must allege and prove notice of any latent equity, 21 Gratt. 249. Bond. For the return of money at the death of obligor. 31 Gratt. 535 ; 32 Gratt. 830 ; 75 Va. 200. The law does not Legal Aphorisms. 31 make any inference, one way or the other, as to the con- sideration. Walker v. Walker, 13 Iredell 335. Plea of nil debt to action on, how far allowed. 2 Hill 232 and note; 1 Chitty PI. 518; 2 Va. Dec. 588. •Brackets. Use and significance of. 9 Gratt. 72, 81, 83. Bridges. Form of contract for construction of. 11 Gratt. 676. Builders" Contract. A desirable provision and forms of. 2 Rob. Pr. 414 ; 98 Va. 503. Form of declaration on. 22 Gratt. 303. What declaration on, against surety must aver. 19 Wend. 604. Buildings. Which tenant has right to remove are personal property. 28 Gratt. 115. Overlapping roof or eaves of a building. 88 Mass. 104. Burden of Proof. What consideration should be attached to the fact that accessible witnesses are not called to the stand. 134 Mass. 502; 32 Gratt. 649; 81 Va. 584; 54 Fed. R. 481; S. C. 4 C. C. A. 454; 49 Am. St. R. 400; 140 Fed. R. 225; 70 Am. St. R. 350. In the case of Wyeth v. Mahoney, 32 G. 649, Staples, J., says: "And it is observable throughout that whilst the appellant had the right to testify and give his ver- sion of the transaction, he has not thought proper to do so. 32 Legal Aphokisms. It is impossible to avoid a suspicion, at least, that the appel- lant was, perhaps, not willing to encounter the test of a pub- lic cross examination," etc. Case. When to be preferred to assumpsit. 3 Rob. Pr. 438 ; 1 Chittj PL 164. The manner in which the breach is stated does not deter- mine the cause of action, whether it is case or assumpsit. 21 Wend. 29. If the cause of action, as stated in the declara- tion, arises from a breach of promise, supported by a direct consideration, the action is ex contractu; but if from a breach of duty, growing out of the contract, it is, in form and in fact, an action ex delicto and case. 18 Ala. 288. Actions held to be on contract. 32 K E. R. 802 ; 122 Mass. 163 ; 41 I^. W. 524; 12 Pac. 699. Action held to be in tort. 32 K E. 324. See, also, Penn. R. R. Co. v. Smith 106 Va. ; S. C. 56 S. E. R. 567; 46 S. E. (W. Va.) 918. The rule is to treat the count as partaking of the nature of the action, so that if the action is ex delicto, the count will be intended as ex delicto, also, unless there be something in its form and structure which plainly forbids such intendment. 25 Gratt. 769. Cektioeaei. A certiorari lies upon all final adjudications of an in- ferior court or officer, invested by the Legislature with power to decide on the property or rights of the citizen, and which court or officer acts in a summary way or in a new course different from the common law. Tidd. Pr. 1051, 1138. Coke Lit. 288b. ; 2 Salk. 504 ; 1 Salk. 144, 146 ; 2 Black. Com. 32 Legal Apiiokisms. 33 to 44; 2 Coinos' R. 182; 20 Johns SO * * * * * A certiorari is defined in Bacon's Abr., to be a writ issuing out of chancery or the King-'s bench, directed to the judges or officers of inferior courts or tribunals, commanding them to return the records of a cause depending before them. Bacon's Abr., fit. Certiorari. It may be directed to an in- ferior court whether it be an ancient or a newly created juris- diction. Bacon's Abr. certio, B. This writ is applied to various uses, other than that for removing final determina- tions for review, but it is not necessary here to notice them. It, however, never lies to remove a civil proceeding before an inferior magistrate, who has jurisdiction by statute, until after a judgment or final determination therein. 20 Johns R. 83. A common law certiorari, in its office of removing final adjudications for review, possesses all the characteristics of a writ of error. It performs the same office as to inferior sum- mary tribunals, which a writ of error does as to an inferior court of record. And I cannot, upon principle, see why the same results should not follow in the train of a certiorari as in that of a writ of error. A writ of error only brings up the record. It did not reach the merits nor bring up for review the evidence on the trial, and the decisions of the judge there, until the statute gave a bill of exceptions. Stat, of West 2 Ch. 31 (13 Ed. 1.) ; Tidd. Pr. 787; 15 Wend. 533, 4; 17 Wend. 467. If the analogy then between a certiorari and a writ of error is to be preserved, the fornu'r cannot bring up for review the evidence, and the decisions and rulings of the inferior tribunals thereon ; but only the record or the proceed- ings and orders which are in the nature of a record. In the 3-i Legal, Aphokisms, return of a certiorari the record itself or the tenor of it is to be certified. Macon's Abr., tit. Certiorari H., where there is technically no record, the written proceedings and orders, or a history of the proceedings and the written orders which are in the nature of records are to be certified. And whatsoever is put into the return to a certiorari by way of explanation or otherwise, besides what is ordered to be returned, is not to be regarded. Bacon's Abr., tit. Certiorari H. It is apparent to my mind that a common law certiorari, from its analogy to a writ of error does not bring up for re- view any of the evidence of the trial before the inferior tri- bunal, or the decisions thereon. This seems to be settled by the doctrine in England. When the clerk, by accident, in making the copy substi- tutes one word for another found in the record, the spirit and object as well as the letter of this act, as well as the common law function of the writ, would seem to aiford a remedy whereby the record, as in truth it is, can be brought to this court a better record. In Shifilet v. Com. 14 Gratt. 652, where there appeared an omission in the transcript of the finding of the indictment, a certiorari was held proper to secure a better record. So in William's 14 W. Va. 869. If a record is defective or incorrect, the erorrs or omissions should be suggested in this court, and a certiorari moved to bring up a correct record. 18 How. (U. S.) 530. When the clerk's certificate to the transcript is, in point of fact, not true, the remedy is by certiorari to supply deficiencies. Waite, C. J., 108 U. S. 30. In short, this writ is properly used by this court to get before it the record of the court below, as it in fact exists, no matter what the character of the defect in the Legal Aphorisms. 35 transcript as certified in the first instance here. State v. Tingler (W. Va.) 9 S. E. 935. Where in the case of Williams v. Ewart {2 S. E. 888), an action of ejectment, a bill of exceptions was headed Wil- liams ('( al V. Ewart, Green, J., says: "That if a suggestion had been made that this bill of exceptions was not a part of the record, but was a bill of exceptions in some other case, and it had been at all important, he had no doubt but that the court would have issued a writ of certiorari to the clerk of the court below to ascertain whether there was any other ejectment suit pending in the court below, styled Williams et al V, Ewart, but in that case it was abundantly shown by the pleadings and entries of orders copied in the record who were the parties to the cause. Chancery Practice and Pleading. When suit commenced against parties brought in by amended bill. 2 Rob. (old) Pr. 253-4. Subpoena or Summons. When a party is charged in a bill in the capacity in which he is liable, as executor, etc., it is not ground of de- murrer, that the subpoena was issued to him generally, not stating the capacity in which he is sued, Walton v. Herbert, 3 Green Chy. (X. J.) 73, 1 Dan. Chy. Pr. 441, note, and so where the defendant was described in process generally, he might be declared against as administrator, the object of the writ being merely to bring him into court. Watson v. Pelling 6 Moore 66, S. C. 3 B. & B. 4. 1 Chitty PI. 284. See Writ. Bill with (l.mble aspect. 91 Va. 32; 4 Paige 537. 36 Legal Aphorisms. Variance between allegations and proofs. 1 am not aware, thongh it may be, that there is a different rnle m equity from that which prevails at law in relation to a va- riance between pleadings and proofs. Marcy, J., in Harris V. Knickerbocker, 5 Wend. 652. Eelief will not be granted en a case proved, which is materially different from the case stated in the bill. Whatever the prayer, the relief granted must be consistent, or at least not inconsistent, with the case luade by the bill. A different rule would be attended often- times with surprise and prejudice. 30 Gratt. 655. In a court of equity, as well as in a court of law, the allegations and the proofs .nust agree. A recovery will not be allowed upon a case, although proved, which differs essentially from that alleged in the bill. 8 Leigh 354; 5 Rand. 543 ; 3 Rand. 504; 4 Rand. 104; 84 Va. 717; 95 Va. 375. Exhibits arc a part of the bill ; 76 Va. 770 ; 81 Va. 422, and for want of exhibits made part of the bill a demurrer will lie. 5 Leigh 432. Objections to reading, when filed with a deposition. 2 Gratt. 251. How to i3roceed to introduce viva voce evidence at the iiearing to prove exhibits. — ^Where a party intends to pro- duce viva voce testimony in court, upon the hearing of a cause, which is sometimes done (but without a cross exami- nation) to prove the execution of deeds, and the handwriting of letters, or the signatures thereto, and the like, he should apply before that time for an order for that purpose, upon an affidavit, giving a proper description of what is intended to be proved, as well as notice to the adverse party of the motion. 4 II. & IL 441 ; 2 II. & M. 128. Legal Aphorisms. 37 Fa riles. Although not correctly named in the prayer of the bill, when served with process, the error may be corrected by amendment, 95 Va. 28. In the case of Kanawha Valley Bank V. Wilson, 35 W. Ya. 36, S. C. 13, S. E. 58, after set- ting ont a form of a bill in which the names of the defend- ants were not set ont in the prayer, the court said: '*It will thus be seen that the briefest and most modernized form of a bill requires parties defendant to be set out in the body of the bill, as those having an interest in the subject matter and against whom relief is prayed." In Virginia the writ of suh poena is not only issued as matter of course, but the issuing it usually jjrecedes the filing the bill. Here a formal prayer in the bill cannot be necessary to entitle the plaintiff to that process ; and it would be strange indeed if these only should be regarded as defendants, against whom there is an unneces- sary prayer for process. It may be admitted that every bill should clearly designate some particular persons as defend- ants, and that ordinarily the prayer for process selects, from the persons named in the bill, those who are made defend- ants. But this particular mode of designation cannot be in- dispensable. It must be sufficient for the bill to state which of the persons named in it are made defendants. In Elmer- dorf and wife v. Delancey, etc. 1 Ilopkin's Ch. Rep. 555, no persons were designated as defendants, either by a prayer of process against them, or by any statement that they were impleaded as defendants. The l)ill was adjudged bad on Special Demurrer assigniing this cause, but the complainants had leave to amend on the usual terms. 2 Eob. (old) Pr. 290. When suit commenced as to new parties brought in by amended bill. 2 Rob. (old) Br. 253-4. 38 Legal Aphorisms, Motion suj^iDorted by affidavits for, and rule on plaintiffs to show cause wny certain persons should not be made parties, 13 Graft. 38; and motion based simply on the pleadings and rule granted, 3 Leigh 599. Prayer for Relief. "Prayer for general relief is an Indian rubber prayer. • T..um])kin, J. 14 Ga. 525. In the case of the Methodist Church, &c. vs. Jaques, &c. 1 Johns. Chy. Rep. 65, the bill contained the general requisi- ti(>n "that the defendants may full answer make to all and singular the premises, fully and particularly, as though the same wore repeated and they specially interrogated." This was considered sufficient to call for a full and frank dis- closure of the whole subject matter of the bill. 2 Rob. (old) Pr. 291. But see 76 Va. 592; 7 V. L. R. 327. The prayer in a bill of review may be that the decrees and proceedings in said suit may be reviewed, reversed and set aside, and the plaintiffs restored to their rights, adding prayer for general relief, 26 Graft. 523, and in a petition or original bill filed to reopen the original decree in a case where the decree had been rendered without appearance, it may be "that the decrees and proceedings might be re-opened, reconsidered and reversed, with prayer for general relief. 18 Graft. 371. (2) Judge Story, in speaking of that part of the bill which contains the prayer for relief, says : "The usual course is for the plaintiff in this part of his bill to make a special prayer for the particular relief to which he thinks himself entitled, and then to conclude with a prayer of general relief at the discretion of the court. The latter can never be ])rop- Legal Aphorisms. 39 erly and safely omitted ; because if the plaintiff shall mis- take the relief, to which he is entitled, in his special prayer, the court mav yet afford him the relief to which he has a right under the prayer of general relief, provided it is such relief as is agreeable to the case made by the bill, Story's Eq. Plead., sec. 40. Again, ''But, even when a prayer of general relief is suffi- cient, the special relief prayed at the bar must essentially depend upon the proper frame and structure of the bill ; for the court will e-rant such relief only as the ease stated will justify; and will not ordinarily be so indulgent as to permit a bill framed for one purpose to answer another, especially if the defendant may be surprised or prejudiced thereby. Thus if a bill is brought for an annuity, or rent charge of ten pounds per annum, left under a will, and the counsel for the plaintiff pray at the bar, that they may drop the demand of the annuity or rent charge, and insist upon the land itself, out of which the annuity or rent charge issues, the court will not grant it, for it is not agreeable to the ease made by the hill. Id. sec. 42. And the relief which may be supplied under the general prayer must not only be consistent with the case made by the bill, but also with the relief specially prayed. 1 Dan. C'h. Prac. (4 Am. Ed.) 378, 379 and notes. Under the general prayer, the plaintiff is entitled to any relief which tite material facts and circumstances put in issue by the bill will sustain ; but it must be consistent with the case made, and if inconsistent with it, and with the specific relief prayed, will always be refused. Parker, .1.. in James v. Bird's Adm'r, 8 Leigh 510, 513. 40 Legal Aphorisms. In Hiem v. Mill, 13 Ves. R 114 (cited in 1 Dan. Ch. Prac. SIS), Lord Elden said: '^The rule is, that if the bill contains charges, putting facts in issue that are material, the plaintiff is entitled to the relief ivhich those fads ivill sus- tain, under the general prayer ; but he cannot desert the spe- cific relief prayed, and under the general prayer ask specific relief of another description, unless the facts and circum- stances charged hy the hill will, consistently with the rules of the court, maintain that relief. The test of the relief to be granted is not the case proved, but the case stated in the hill upon which the issue is made up. 75 Va. 351. Proving a case not made by or within the pleadings, does not authorize a court, except by consent, to pass upon such extraneous matter. 95 Va. 24. Form of prayer in bill filed against administrator and heirs for sale of decedent's land for debts. 27 Gratt. 231. Ceoss-Bill. And, according to the settled practice, a cross-bill is now dispensed with in cases where it was once uniformly re- quired. The court will, some times of its motion, direct a cross-bill to be filed when it is of opinion it is demanded by the purposes of justice. 27 Gratt. 574. 9 Petition. Petition to rehear decree treated as a cross-bill, 23 Gratt. 842— a bill of review, 25 Gratt. 422 ; 20 S. E. 899. Form of prayer for such petition to be treated as a bill of review : "And if the court should be of opinion that a bill of review is the projjer mode of proceeding, he asks that his petition may be so treated, and that he may be permitted to amend Legal Aphorisms. 41 it and luaki' all proper parties, and have all and every relief to whieh he might be entitled under any form of pleading." The petition, in his own right, was brought on by the decree as projjerly tiled and matured ; and this was equiva- lent to leave of the court to file it, and in effect overruled, and properly, we think, the objection of the defendant to its being filed. 93 Va. 247. Bill of Review. Substance of final decree on 25 Gratt. 163 and 165. Safest in every case to have leave of the court to file. 20 S. E. 899. An Amended Bill. An amended bill is in the nature of an amendment of the original bill, and must be read with it, and the two must be regarded as one bill ; the two are regarded as constituting one bill. 87 Va. 251 and cases cited. It is the commencement of the suit as to new parties brought in by it, 6 Pet. 61; 2 Rob. (old) Pr. 253-4; 58 Cal. 151; 34 'Neh. 367; S. C. 51 K W. 969. See Roses notes to Miller v. Mclnges, 6 Pet. 60. Demueeek. Form of Dcmuvrev. — Where a defendant had tiled a de- murrer and answer to an original and amended bill in which before proceeding to answer, he "demurs to said bills, and says they are not sufficient in equity to entitle the plaintiffs to the relief which they seek or to any relief in this court." But if respondent be held bound to answer, he proceeds to answer the same accordin£>lv, the court sav: * * * it 42 Legal Aphorisms. seems to be usual with us to embody the demurrer in the answer, in general language, as was done in this case ; and that practice seems to be recognized, if it be not expressly authorized, by the code * * * which says that ''the form of a demurrer or joinder shall be: "The defendant (or plaintiff) says that the declaration (or pleas) is not (or is) sufficient in law." 26 Gratt. 293-296. In the form prescribed by the statute is sufficient. 25 Gratt. 643 ; 80 Va. 463. Demurrer for want of exhibits made part of the bill, well taken. 5 Leigh. 432. 1^0 demurrer to plea or answer, 6 Va. L. Reg. 184, the proper practice is to except, 98 Va. 390. DiSCLAIMEE. A defendant may demur to one part of a bill, plead to another part, disclaim as to another, and answer as to an- other. 2 Mad. Chy. 260. Or he may do either as to the whole bill. Though a disclaimer is, in substance, distinct from an answer, yet it is, in point of form, an answer, containing simply an assertion that the defendant disclaims all right and title to the matter in demand; and in order to entitle the defendant to be dismissed with costs, the disclaimer should state that the defendant "does not and never did claim, and that he disclaims all right and title in the subject r-oiitter of the suit." Lord Redesdale observes, that in some instances, from the nature of the case, a simple disclaimer may perhaps be sufficient, but that the forms given in the books of practice are all of an answer and disclaimer. 1 Dan. Chy. (6 Am. Ed.) TOT. Legal Aphorisms. 43 GliAEKAL Form of DlSCLAIMEPt. Style of the cause, as in an answer, then — The answer and disclaimer of A. B., the above named defendant ("or one of the above named defendants), to the bill of complaint of the above named plaintiff, or the joint and several answer and disclaimer of A. B. and C D. the (or, two of the) above-named defendants, to the bill of complaint of the above-named plaintiff. In answer to the said bill, I, A. B. (or we, A. B. and C. D.) say as follows: I (or we) have not, and do not claim, and never had or claimed to have, any right or interest in any of the matters in question in this suit, and I (or we) disclaim all right, title, and interest, legal and equitable in the said matters ; and I (or we) say that if I (or we) had been applied to by the plaintiff before the filing of his bill, I (or we) should have disclaimed all such right, title, and interest ; and 1 (or we) submit that the bill ought to be dismissed as against me (or us) wuth costs. The disclaimer should be signed by the defendant, in addition to being signed by counsel. 3 Dan, Chy, Pr, (6 Am. Ed,) 2113, note. And should be sworn to, 2 Mad. Chy, 259. In Oelrichs v. Williams, 15 Wall 511, it is said: Where there is a complete remedy at law a bill in equity must be dis- missed. This objection is regarded as jurisdictional, and may be enforced by the court sua sponic, though not raised by the pleadings, nor suggested by counsel. 94 Va. 101. See, also, 4 Rand. 78". Answer. ^lay not be filed in the clerk's office, except by ordt-r <>f the court, after cause is on court docket. 14 Gratt. 130. 44 Legal Aphorisms. When prepared and respondent dies before it is filed. 7 Leigh. 273. Answer of one defendant referred to and adopted by an- other defendant in his answer. 11 Leigh. 142; Idem. 347;/ 95 Va. 35. Answer of a corporation, see Corporation. Answer and plea cannot be demurred to, nor a plea filed to an answer. Answer must be excepted to, in the stead of demurring, and set down for argument. 6 Va. L. Reg. 184; 98 Va. 390, 387. "When the defendant filed his answer, if the complainant deemed it sufficient, he should have taken issue upon it by general replication ; or, if he chose to incur the hazard of so doing, he might have had the cause set for hearing upon the bill and answer without replication ; or, if there was new matter in the answer making it proper, he might have filed a supplemental bill. One or the other of these methods he was bound to pursue. He had no right to file a plea to the answer." 33 Graft. 458 — or he might, if he considered it insufficient, have excepted to the answer and had it set down for argument, or moved to have the part ol the bill, to which the answer was not responsive, taken for confessed. (2 H. & M. 18.) V. C. 3276; 6 Va. L. Reg. 184. "If he had filed a general replication, it would have been a general denial of the truth of the defendant's answer, and of the sufficiency of the matter alleged in it to bar the com- jDlainant's suit, and an assertion of the truth and sufficiency of the bill: Story's Eq. PL, sec. 878." 33 Graft. 458; and if he excepts to the answer for insufficiency, ''he plants him- self upon the proposition that, if the averments of the answer are sustained by proof, they constitute no defence to the plaintiff's demand. 98 Va. 391. Legal AriioRiSMS. 45 Form of Exceptions to an Answer. lu the Court for County : Exceptions of the plaintiff, A. B., to the answer of the defendant, C. D. 1st. Because, etc. 2nd. Because, etc. In uU of which particulars the said plaintiff excepts to the answer of the said defendant as evasive, imperfect and insufficient, and humbly prays that the said defendant may be compelled to put in a full and sufficient answer to said bill. , Pq. Answer is evidence in ones own behalf and against the plaintiff only so far as its statements are responsive to the bill and based on facts within his own knowledge. Clark's Exr. V. Van lUemsdyk, Cranch R. 153 ; 33 Gratt. 381. When a defendant, in his answer, states that he neither admits or denies a fact, having no personal knowledge of it, and calls for full proof touching the same, plaintiff is put ujx)n proof. 11 Gratt, 568. When plaintiff, after answer under oath, dismisses his bill and files a second, in which he waives answer under oath, former answer remains evidence and must be overcome by two witnesses, &c. 105 111. 272. As evidence, see Evidences in Chancery Cause, infra. Jiijnnia. — It is not now the practice to i-equire an answer from an infant. 1 Dan. Chy. ( () Am. Ed.) 1G!> ; cxcc'i^t when required by statute, but he may file a voluntary answer set- ting up anything which he meant to prove by way of defence. iDan. Ch. (6 Am. Ed.) 169. 46 Legal Aphorisms. Replication. No special replication in equity practice, amendment of the bill takes its place. If the complainant conceives, from any matter offered by the plea or answer, that his bill is not properly adapted to his case, he may obtain leave to amend his bill and suit it to the defence, or he may file a supple- mental bill. 2 Rob. (old) Pr. 315. A general replication which is now alone used in equity, is a general denial of the truth of the defendant's plea or answer. ''If he had filed a general replication, it would have been a general denial of the truth of the defendant's answer, and of the siifficiency of the matter alleged in it to bar the complainant's suit and an assertion of the truth and sufficiency of the bill. Story's Eq. PI. sec. 87a" 33 Gratt. 458; 100 Va. 133. Evidence. Examination of witnesses at the hearing to prove execu- tion of exhibits, etc. 2 Rob. (old) Pr. 351 ; 3 Greenl. Ev. sees. 309, 310; Sand's Suit in Eq. 495, 682. See, also, 25 Gratt. 560; 7 Gratt. 350. No admissions in an answer can under any circumstances lay the foundation for relief under any specific head of equity, unless it be substantially set forth in the bill. 11 Pet. 249. Variance between allegations and proofs, see Bill, i7ifi'a. Decree, see Decree. Consent of infants to a decree. 8 Va. L. Reg. 684. Decree based on constructive process. 2 Va. L. Reg. 48. When court will decree against plaintiif in favor of the defendant. 20 Gratt. 394. Legal Aphorisms. 47 "Directing payment of money to legatees for life upon their giving security for its return at their death. 31 Gratt. 535. Giving Time to Redeem. — It is the invariable rule to give such clay in suits by mortgagee against the mortgagor to foreclose a mortgage (Clark v. Reyburn, 8 Wall. 322), and, also, in suits by vendor against vendee to enforce his lien for purchase money, whether such lien be express or implied. 29 Gratt. 355. In this case it was held to be error to order a re- sale without giving the purchaser at a judicial sale a day to redeem. An order simply dismissing the suit, without reservation, is a determination on the merits, and so is a bar to the main- tenance of a second suit for the same cause of action. 13 Gratt. 183 ; 96 Va. -451 ; Contra, Haldeman v. U. S. 91 U. S. 584; and it has been held by the S. Court of Appeals of Vir- ginia, that an order dismissing a caveat, when not on the merits, is not conclusive of the controversy. 1 Call. 206 : 78 Va. 618. In this case the order of dismissal was, "By con- sent of parties and for reasons appearing to the court, ordered that this cause be dismissed." When suit is dismissed without prejudice. 9 Va. L. Reg. 880; Id. 549. '^Dismissed agi-eed." 5 Va. L. Reg. 33. Mr. Lile con- cludes this note with the remark that ''whatever may be the true rule, dismissed agreed are dangerous words to put into an order in Virginia, if the controversy is not finally deter- mined." Form of decree for renting lands where it appears prob- able that the rents and profits will pay in five years. 32 48 T..Br ir.<,F APHO-aiSMS. Graft. 125; and tlds ilec-jnee most pareccde deoce for sale wliere- it ap|!eais prdbaMe that the- iremt* aitd proifit* will pay im five veais. S3 Va. SL. Piw>f &£ Tahas' hj e-shihitm^ aitidle simiBar te- one lost aoid pp<>viini2 its- value. 141 Mas&. 42. Check. Jmdige Bmi&s:^ im 2S Giratt. 17*), says: '^Bamk ehedb,'' says Mr. Jinistiee Swaymie, ddliverimig' tlie ©pimio© ©f the SMpmHnae Ccioart ©f tise Umited States im the case ©f Mer- duamte* Bank t. State Baifilk^ 10 WaE. U. S. R (5*M^ 6D7, "aire mot feiills ©df eseinaiLae^ Iwnit lyave imaimy ei the- pir«>perties- »!>f soeh ©oiBimieireial pap^r; and uniaiffiy ©f the nnifes ©€ the law mie-r- ehamts aire alike ap^lieaMe to hoith. Elaeh is fo'F a speififie gnEMiy payable im jmmttj'. Jm lw)4th eases these is- a dnnrer, a dirawee aimd a payee. Witheniit aeeeptaiDee^ m© aetioaa can be nmaiiDitaiiiied by the hfDl0 Gratt. 741. Protection of rights ac(piired under an overruled decision. 8 Va. L. Eeg. 73 ; 10 Idem. 7ii4 ; U2 Ala. 176 ; 28 Gratt. 222 ; 25 Gratt. 771. "To permit," says Chancellor Kent, "a subse- quent judicial decision in any one given case, on a jwint of law, to open or annul everything that has been done in other cases of the like kind, for years before, under a different understanding of the law, would lead to the most mischievous consequences. Fortunately for the peace and happiness of society, there is no such pernicious precedent to be found. ' 2 Johns. Chy. II. CO; 4 Pick. IS. Stare decrisis. 9 Va. L. Reg. 574 : "Let us not change our rule. Jus nostrum magis quam allenum', servemus." Lee, J. 15 Gratt. 120. An instance among those anomalies of the law which some times arise from blindly following the hasty decision of a distinguished judge. 5 Hill 453. English decisions prior to the Revolution (construing the common law) have all that claim to authority which is allowed to appellate courts. Chief Justice Marshall, 1 Brock 140. See, also, 15 Gratt. 374; construing our statute is not^ obligatory, although our statute is similar to theirs. 1 Pet. 3G3; Harding's R. (Kty.) 301. Decisions of foreign State as evidence of the law in that State. In 13 Gratt. 441, .Judge Daniel says: "It appears, from the report of the decision of the Supreme Court of Ohio V2 Legal Afiiokisms. in the case * * * which was given in evidence by the defendants on the trial, to have been decided by that court, that," &c. Declakations and Admissions. . See Admissions and Declarations. A declaration should not allege that a party was "duly" appointed or elected, '^lawfully," ''sufficient," "by virtue of a certain writ," etc., without setting it forth : but should state what in particular was done ; so that if the fact be admitted, the court can determine the legal effect ; or if issue be joined on the allegation, the jury can answer as to its truth. 3 Rob. Pr. 530; 1 Chitty PL (7 Am. Ed.) 271, 365; but see 100 Va. 436. The court may look to the declaration or petition to see whether the action is on the instrument or its consideration. IsTewell v. ISTixon, 4 Wall 581; 5 Rob. Pr. 253; 2 H. & M. 423. See, also, 25 Graft. 769. As to the effect of miscalling the action in the beginning of his declaration, see 3 Rob. Pr. 527, and 2 H. & M. 441. When the declaration shows that the plaintiff has no right of action, and that the right of action is in another and ver- dict for plaintiff, the statute of jeofails does not apply, and the court should give judgment for the defendant non ob- stante veredicto. 12 Leigh 204; 15 Graft. 01. If the declaration be bad, the defendant should demur, or move in arrets of judgnunit. He cannot, upon the trial, object to the evidence in support of it (provided it agrees with the declaration) merely on the ground of its insuffi- ciency to maintain an action. 2 Call 530. Lkgai- AnioKis.Ms. 73 Counts ill a declaration, against two or more, cannot be joined with a count against one of them severally; nor in an actio;i against husband and wife can the plaintiff count on promises by the wife bcfoi'c marriage, and also on promises by the husband during marriage; this is a misjoinder of action ; for the promises before marriage charge the husband and wife and the promises by the husband after marriage charge him alone. 82 Va. 501; 1 Rob. (old) Pr. 284. Misjoinder of Counts. The objection is that the whole declaration is bad,- because it is not framed according to the rules which the law has pre- scribed ; and, therefore, upon a general demurrer thereto, judgment will be given for the defendant. May v. House and wife, 2 Chitty's R. 697 ; IS" Eng. Com. Law Rep. 4G1 ; 1 Rob. (old) Pr. 28-i; C Gratt. 134; and the declaration may not be amended ; the judgment on general demurrer will be final. 94 Va. 779 ; 4 Minor 448 ; 6 Gratt. 134. The Supreme Court of Appeals of Virginia, however, in the ease of Creel v. Brown, 1 Rob. 205, reversed and remanded the case to give the plaintiff an opportunity to amend, where it appeared that one count was in toi-t and the other in assumpsit, and the de- murrer which had been interposed had not bt'cii acted on. See, also, lOO Va. <)45 ; Gould's PI. (Hamilton's reprint of Second Ed.) 2U9, citing 4 T. li. 347-&, 300. Atnendnient Increasing Damages. — Amendment of the declaratiiiii at the trial, in indebitatus assumpsit by increasing the amount in the several ee who delivered the opinion of the court conceded "that the cancelling of a deed does not revest prt.perty which has once passed under it;" and, as to the cases of Tomson v. Ward and Com. v. Dud- ley, be observed: "The true ground on which these decisions are to ,be supported is, that the grantee having voluntarily and without any misapprehension or mistake, consented to the destruction of the deed, with a view to revest the title, neither he nor any other person .claiming by a title subse- quently derived from him, is to be permitted to show the con- tents of the deed so destroyed, by parol evidence. So, that there being no competent evidence that the land ever passed, the title is to be considered as having always remained in the grantor." With the exception of the above decisions, presenting it is believed a somewhat novel application of the doctrine of estoppel in pais, the great current of authority will be found in accordance with the case reported in the text. See Jackson V. Chase, 2 Johns R. 87 ; Lewis v. Payne, 8 Cow 75 ; Jackson V. Gould, 7 Wend. 306; Botsford v. Morehouse, 4 Com. K. 550; Gilbert v. Buckley, 5 Id. 2G2; Coe v. Turner, Id. 86; Marshall v. Fiske, Mass. 24; Chessman v. Whitemore, 23 Pick. 234; and citing, in addition, 1 Shep. Touch. 141 (Pres- ton's Ed.) ; Bull's X. P. 2C.T; 3 Preston on Abs. 103; Gilb. Ev. Ill, 112, and ten English decisions. Deeds of Tiust. Both deeds of trust and mortgages are regarded in iquity as mere securities for the debt, and whenever the debt is as- signed, the deed of trust or mortgage is assigned or trans- 80 Legal Aphorisms. ferred with it by operation of law. 27 Gratt. 837; 76 Va. 499. The same principles apply to the vendor's lien, result- ing from the retention of the legal title. 25 Gratt. 453 ; 27 Gratt. 837. The assignee has three remedies: An absolute right to resort to the debtor himself ; second, to the lien upon the land; and, third, contingently to the assignor himself. The loss of the latter remedy, by the want of due diligence, can n(3 more affect the recourse to the land than it can affect the risht of reverting to the debtor himself. The assignment of the bond (or note) is ipso facto an assignment of the lien. Having once vested by the assignment, that lien is not divest- ed by the failure to sue the debtor. The assignee, having tAvo remedies, both absolute and undoubted, may resort to either. 25 Gratt. 457. Nobody ever contended that permanent building, erected by the mortgagor, or at his expense, could be removed by him, or that the mortgagee could be compelled to account for them, or the proceeds of the sale of them, at least until the mortgage debt was fully paid. There is no difference in this respect be- tween a deed of trust and a mortgage, but the principle is equally applicable to both. 23 Gratt. 290. Deed of trust to secure future advances. 29 Gratt. 483. One may not only convey or transfer a chose in action or any other property to secure an existing indebtedness, but it is also well settled that he may likewise do so for the purpose of securino- future loans and advances. (Citing authorities.) 93 Va. 537; 101 Va. 269. Priorities of liens in such cases. 6 Va. L. Reg. 632. When deed of trust provides for sale at auction, the trus- tee cannot sell privately. 1 Peters 145. Legal ApiiORiSMS. 81 Form of deed of trust on real and personal property. 7 Gratt. 27. Delivery. The term ''delivery" is used in the law of sales in very different senses. It is used in turn to denote transfer of title and transfer of possession ; and where the parties have agreed, and the specific articles are appropriated and accepted, then, independently of the statute of frauds, it is often said, there is sufficient delivery to pass the title, although there may be no transfer of possession. And this must be, so, in order to be consistent with the lien which remains to the vendor for the price. 2 Kent Com. (6 Ed.) 492 ; Simmons v. Swift, 5 B. & C. 857; 106 Mass. 433. What delivery to vendee will sustain his right against creditors of vendor, and subsequent purchases from him. 2 Eob. Pr. 510 ; 2 Pick. 601. Demand. See Request. Demurrer. Instance of filing after pleading in bar to the action. 30 Gratt. 7. The proper course would seem to be to move the court to be allowed to withdraw the plea or answer and then demur. 90 Va. 797. It is a cardinal rule of the law of pleading that a demur- rer admits only such facts as are sufficiently or well pleaded. It does not admit that the construction of a written instru- ment as averred in the pleading, when the instrument is set -forth in the pleading, and can be inspected, is the true one; nor that the purpose ascribed to the parties thereto, when the same is not justified by the language, is correct; nor that a parol iiiulerstanding, which varies or contradicts the written 82 Legal Aphorisms. instrument set out in the pleading and on which it is founded, is competent or admissible. 95 Va. 123. An allegation of the pleader's conclusion of law from facts pleaded is not traversable, and is not admitted by de- murrer. It need not be made ; and if made, it may be rejected as surplusage. 137 Mass. 121. On demurrer there is no enquiry about collateral facts; the only question is, whether the pleading is good upon its face. 21 Wend. 340. Form of demurrer to bill in chancery. See Chancery, P. &P. Form of demurrer to a plea at law is ''that the said plea and the matter thereof are not sufficient in law, to bar or preclude the plaintiff's action" (or in the form prescribed by statute. Y. C. 3271). It admits the truth of the plea. 3 Eand. 61. Sustaining or overruling a demurrer is not a final judg- ment and, unless it adjudges the principles of the cause, there is no writ of error lies until there is a judgment of dismissal. 98 Va. 276 ; Id. 256 ; 6 Va. L. Reg. 41 and note. Demukkek to Evidence. Though called a demurrer to evidence, is essentially a demurrer to the facts shown in evidence. Gould PI. 47. With respect to the power of the court to compel joinder in denmrrer. 12 Va. L. Reg. 363; 23 Gratt. 636. Verdict. — Should the jury return a verdict, stating, that court shall be of opinion that the matter shown in evidence is sufficient to maintain the issue on the part of the plaintiff, they assess the damages to a sum specified by them. And, if in their opinion, the plaintiff" should be allowed interest in Legal Aphorisms. 83 the event of his recovery, they will go on to fix the time at which such interest shall commence. In detinue, the condi- tional verdict should conform to the nature of the action. 1 Rob. (old) Pr. 371. But see Biggar v. Alderson, 1 H. & M. 54. When the only pleas are under the statute allowing equit- able set off, the form of judgment should be: "We, the jury, u[)on the issues joined, find for the defendant and assess his damages at a stated sum, subject to the opiniou of the court ujDon the plaintiff's demurrer to the evidence ; but if, upon the demurrer to the evidence, the law be with the plaintiff, then we find for the plaintiff the sum ascertained. to be due him." 99 Va. 490. The language of the adjudged cases on this subject is very strong to show that the court will be extremely liberal in their inferences, where the party, by demurring, will take the question from the proper tribunal. It is a course of practice, generally speaking, that is not calculated to promote the ends of justice. 27 Graft. 671. When the question is, whether or no a fact ought to be taken as established by the evidence, either directly or infer- entially, in favor of the demurree, I do not know a juster test than would be furnished by the enquiry, would the court set aside the verdict, had the jury on the evidence found the facts. If the verdict so finding the fact would not be set aside, it ought to be considered as established by the evidence de- murred to. 23 Gratt. 039. And when the juiy upon the facts might have found for the demurree, the court u^wn the de- fendant's demun-cr to the evidence, must so find. 103 Va. 104; 104 Va. 643-4; Idem. 617-18. 84 Legal Aphoeisms. Depositions. Depositions should be taken out and read by the jury. 11 Gratt. 404. Ex joarte affidavit taken without notice and read as a depo- sition when not objected to. 25 Gratt, 134. IIoic to make the Record for Appeal show the actions of the Court in passing upon Exceptions. — A bill of exception to the action of the court in overruling a motion to exclude certain evidence in which the evidence is set out, proceeds as follows : The plaintiffs, by counsel, at the time of the taking of the depositions of A. B. and C. D., noted on the face of said depositions sundry exceptions to questions and answers being propounded and answered by the witnesses, respec- tively, and also to the introduction of the contract herein be- fore referred to, as evidence; and also to said depositions, and, at the time of the hearing of this cause, all of these ex- ceptions were insisted on by the counsel for the plaintiffs, but (were) overruled by the court. Descriptio Personae. In New York, whether a note be in this form: "1, J. F., president of the M. F. I. Co., promise to pay, &c., J. F." or be in this form: ''I promise to pay, &c., J. F., president of the M. F. I. Co."— that is to say, whether the president of the company be expressed in the body of the instrument, or only in the addition to the signature, it is considered in either case the note is the note, not of the company, but of J. F. individually. Barker v. Mechanic Ins. Co. 3 Wend. 98. And where a bill of exchange was addressed to ^'J. R. L., president R. M. Co.," and accepted by writing his name with Legal Aphorisms. 85 i) that addition, an action was sustained against the acceptor individually; the addition was taken as descriptive of the person rather than as qualifying the obligation which he as- sumed. Moss V. Livingston, 4 Comstock 208 ; 3 Rob. Pr. 63. An agent or executor who covenants in his own name, and yet describes himself as agent or executor, is personally lia- ble, for the obvious reason that the one has no principal to bind and the other substitutes himself for his principal. Duval V. Craig, 2 Wheat. 45. And the same rule applies to the contracts of guardians, trustees, and all other persons acting en autre droit; the addition to the signature of the word "agent," "executor," "trustee," etc., being regarded as a mere descriptio personae, unless, indeed, it api>ear that the party so signing his name was recognized as contracting in his representative character when the contract was made, in which case he will not be personally bound. Taylor v. Davis, 110 U. S. 330 ; Metcalf v. Williams, 104 U. S. 933 ; Staples V. Staples, 8-5 Va. 76 ; 1 Pars. Cont. 128 ; 85 Va. 605. An action brought in the name of A. B., cashier of a cer- tain bank, is an action brought by A. B. individmdly, and the phrase "cashier," kc, is mere surplusage. 4 Rand. 359. And in a suit in which complainant described himself as giiardian of, &c.,the court says, the words, Guardian of R.H., an infant under the age of 21 years," are mere descriptio personae, and do not change the personal character of the suit." 9 Gratt. 276. And so a declaration which commenced thus: B. com- plains of IL, president of, <&:c., and then proceeded to allege that the defendant became indebted, promised to pay, kc, but afterwards refused : Held, not a declaration against the bank. 86 Legal Aphoeisms. but against H. individually, the words added to the name being mere descriptio personae. 6 Hill 240. It is safer, when proceeding for or against an executor or administrator to insert "as" before the word "executor"' or "administrator." The omission of that word may render the character of the proceeding equivocal. 10 Gratt. 280. Detinue. Detinue and debt in the detinet may both be maintained for chattels. The difference between debt and detinue as to chattels is this : If I deliver to J. S. (or he becomes possessed of) chattels which he is bound to return to me, and does not, detinue is the proper form ; whereas, if a man contract to deliver (to) me a horse or a fat capon or the like, debt is the proper form of action to enforce the obligation. Maule, J., 15 Com. Bench (6 J. Scott) 303. Lord Coke says: "If I grant to give a man 40s. or a robe, &c., after Easter he may bring debt for the one or the other. Id. 7 Man, Gr. & Scott 48, note. 3 Rob. Pr. 468. When A wrongfully takes the proj^erty of B and sells it, B may bring trespass (trespass on the case) trover, detinue or assumpsit for money had and received, against A at his election ; but having elected one of these forms of action, and prosecuted it to judg-ment, he cannot then abandon it and bring another. Trespass (or trespass on the case) compre- hends the whole injury, as well the wrongful taking as the wrongful detention or conversion, and the value of the prop- ert^i, unless it be restored. By bringing detinue or trover, the plaintiff waives all claim for the wrongful taking of the property ; and by bringing assumpsit he also waives all claim LeGAI. Al'HORISMS. 87 for the wrongful detention and conversion, affirms the sale, and makes the proceeds of it money bad and received to his use. It would be inconsistent to permit him, after electing and prosecuting to judgment either of the three last named actions, and especially the last, to resort to the first. 17 Gratt. 132 ; 6 Eand. 457 ; 147 Mass. 344. So if a man take the goods of another and sell them, the owner may waive the tres- pass and sue him for money had and received. 16 Gratt. 233. The plea of non detinet puts in issue the title of the plain- tiff, as well as the act of detention. But in such case the ver- dict does not operate as an estoppel, unless the ground upon which it was rendered appear from the record or by extrinsic evidence. 20 Gratt. 360. In an action of detinue, where the sole plea interposed is non-detinet, and the property sued for dies during the pen- dency of the suit without fault of the defendant, the plaintiff may recover the alternate value of the property, unless the matter is brought to the attention of the court by a plea puis darrein continuance. Arthur v. Ingels, et al. 12 S. E. (W. Va.) 872; or it would seem, "to the further maintenance of the suit if death occurs before plea pleaded. 6 Rob. Pr. 591 ; 10 Gratt. 569 ; 5 Hill 393. Form of Verdict for Plaint iff.— We, the jury, find upon the issue joined, that the defendant doth detain the slaves, Tab, Betty and Jack, in the declaration mentioned, in man- ner and form as the plaintiff against him hath complained, and that the said Tab is of the value of $200, and the said Betty and Jack each of the value of $300 ; and they do assess the damages which the ])laiiitiff hath sustained by occa- sion of the detention of said slaves to $ , besides his costs. Rob. Forms, ]\ i:'.l ; S Leigh 81 ; 4 Minor 641. 88 Legal Aphokisms. Devisavit vel 'Hon. Order of the court directing the trial and indicating the issue : The court ordered that a jury be empannelled at its bar to determine whether or not said paper was the true last will and testament of M. W., deceased, and directed that, upon the trial of the issue, the defendants in the bill should occupy the position of plaintiffs and the complainant the position of defendant. 96 Va. 715. Form of Averment in Bill. Id. 713. Dismissal of suit "agreed" — "without prejudice" — "sim- ply dismissing without reservation." See Chancery, P. & P. Disclaimer. See Chancery Pr. and PI. Discontinuance. A discontinuance is somewhat similar to a non-suit; for when the plaintiff leaves a chasm in the proceedings of his cause, as by not continuing the process regularly from day to day and time to time, as he ought to do, the suit is discon- tinued, and the defendant is no longer bound to attend ; but the plaintiff must begin again by suing out a new original, usually paying costs to his antagonist. 25 Gratt. 390, quoting from Tucker's Com. But in a later case, where the action was against three parties, and F. one of them, pleaded ; and on motion of the plaintiff, by counsel, the cause is discon- tinued as to F., and judgment by default taken against the other defendants, the court say: The term "discontinuance" is not applied in pleading merely to those cases in which the plaintiff leaves a chasm in the proceedings in his cause. The word is also frequently used to indicate that the "plaintiff discontinues his action." The judgment in such case is no Legal Aimiokisms. 89 more than an agreement not to proceed further in that snit against that particular defendant. Such judgment is not a bar to any further action against the same party. And this is precisely the effect of the order of discontinuance entered in the present case. Coifman & Richardson v. Russell, 4 Munf. 207, is a direct authority upon this point. 27 Gratt. 257. Forms of orders. Rob. Forms DO. DiSTKESs. See Landlord and Tenant. ]N"one for interest on rent due. "And where the owner of the rent proceeds by distress, to recover the same, he is not entitled to distrain for interest thereon ; especially in a case where there is no agreement that the tenant shall pay interest, and that the landlord mav distrain for that as well as for the rent itself." 8 Paige Chy. R. (X. Y.) 220; 9 A. & E. Ency. Law (Xew Ed.) 024; and sec. 2787 V. C. does not change this common law. An acceptance by a landlord of a bond for rent is no ex- tinguishment of the rent, because the rent, issuing out of the realty is a debt of as high a nature as a specialty claim. 1 Chitty. PI. (7 Am. Ed.) 11!», and hence there is no merger; see, also, 4 Minor 148. What is meant by distress? Mr. Minor says, 4 Minor, p. 122, Distress (district io) is the sunmiary taking of a personal chattel out of the possession of the wrong-doer, into the custody" of the party injured, in order to procure a satisfaction for the wrong committed, 3 Bl. Com. 5 N. (8) ; Bac. Ab. Distress.— But it seems to have been held in the cases of Tennent v. Field, *.>2 E. C. L. 336 and Wood v. Nunn,15 Id. 340, that the levy of a distress war- rant is governed by the same rules as apply to the levy of an ^0 Legal Aphorisms. execution or attachment, i. e., that the levy is complete if the property comes within the view and power of the officer. Divorce, Form of decree of divorce a vinculo matrimonii. 27 Gratt. 599 Dower. An inchoate right of dower is an existing incumbrance on land, within the meaning of the covenant against incum- brances. Shearer v. Eanger, 39 Mass. 447. It is in the nature of a contingent lien or incumbrance upon the realty. Staples, J., 33 Gratt. 285. How to compute the present value of a dower right — - vested and contingent. 3 Va. L. Reg. 69. Drunkenness, As a defence, and in this case, considered along with other circumstances. 27 Gratt. 821. Election, Knowledge of all the facts necessary, to conclude party by having brought action. 121 ^\ Y. 161, S. C. ; 24 N. E. 272 ; 156 Mass, 193 S. C. ; 30 N. E. 692. And the same cases assert the proposition that: The fact that a party wrongly supposes that he has two such rights and attempts to choose the one to which he is not entitled, is not enough to prevent his exercising the other, if he is entitled to that. Bringing action ex contractu against some of the wrong doers is a final election to treat the transaction as a sale. 121 N. y. 161, S. C. 24 K E. 272. Legal Aphorisms. 01 Equity. It is the constant object of courts of equity to do complete justice, by deciding and settling the rights of all persons in- terested in the subject of the suit, so as to make the perform- ance of the order of the court perfectly safe to all those who are compelled to obey it, and to prevent future litigation. 4 Eand. 452; 99 Va, 154. Parties cannot by their express agreement, any more than by remaining silent, require courts to proceed with causes where it is evident that for lack of proper issues or proper parties final results cannot be accom- plished, and injustice and future litigation are the probable consequences. See opinion of Judge Bouldin in Armentrout V. Gibbons, 25 Gratt. 376 ; 99 Va. 154. It is the policy of courts of equity not to multiply, but to put an end to litiga- tion. Where the record shews proper parties, and the sub- stantial case no court, and, least of all, an appellate court, will render such a decision as to leave the matter in contro- versy still a subject of litigation. 22 Gratt. 140. While there is some conflict in the English cases and in some of the American decisions, as to how far courts of equity will enter- tain bills for compensation or damages, except as incidental to other relief, it seems to be now well settled, that where a court of equity clearly has jurisdiction of the subject of the controversy, jurisdiction for compensation or damages will attach where it is ancillary- to the relief prayed for. 2 Story Eq. ; 22 Gratt. 820. It is a rule, founded on the principle of preventing un- necessarv and vexatious litiuatioii, that n plaintiff shall not be allowed to split up a single cause of action, so as to make it the subject of several suits. On this ground, a court of 92 Legal Aphokisms. equity will not allow a bill to be brought for part of a matter onlj, when the whole is the proper subject of one suit. Thus, it will not permit a party to bring a bill for one part of one entire account, but will compel him to unite the whole in one suit ; for, otherwise, he might split it up into various suits, and thus promote the most oppressive litigation. Story Eq. PI. 287; 19Gratt. 67. A bill which, when read in connection with the exhibits filed, and which are made a part of it, states the complain- ants' case with such a degree of certainty and consistency as would enable the defendant:s to make defence and the court to decree upon the case made, is sufficient. 100 Ya. 182. It is a maxim of equity that the court will not interfere in favor of a mere volunteer. The mere intention to be- stow a bounty, however clearly proved, is not of itself suffi- cient to create a binding engagement : some consideration is essential to the validity of the act. 10 Gratt. 262. Judgment creditor suino- to enforce lien on real estate need not allege or prove a return of no property found upon an execution as a condition to filing his bill. Freedman's Sav- ing Tr. Co. V. Earle, 110 U. S. 710 ; 28 L. C. P. Co. 301, 303; Lewin on Trusts, 795; 100 Va. 181. See, also, 30 Gratt. 526 ; Idem. 545. But it must be borne in mind that before the judgment creditor, who is otherwise unsecured, can come into equity against the goods and chattels of his debtor, except where the statutes allow, must first take out execution and cause the same to be levied or returned. 2 Rob. (old) Pr. 46. Courts of equity have no more right than courts of law to change the contracts of parties. 18 Gratt. 169, and cases cited. Legal Aphorisms. 93 In matters of concurrent jurisdiction, it has been said with great propriety that there should not be different meas- ures of redress in the courts of law and equity. 2 Kob. (old) Pr. 9. Many instances in which a court of equity held parties concluded bv misconduct, silence, or words of assurance. 12 Pick. 44. Equity of Redemption. The equity of redemption of the mortgagor is descendible by inheritance, devisable by will, and alienable by deed, pre- cisely as if it were an absolute estate of inheritance at law. 21 Gratt. 121, and authorities cited. An equity of redemp- tion in personal property is legal assets. 17 Gratt. 308. Equity of redemption reserved to the husband in a mortgage by husband and wife of wife's lands creates a resulting trust to the wife after the objects of the mortgage have been satis- fied. 91 Va. 469, and authorities cited. Erkoe, Courts should be careful when an error to the prejudice of a litigant is established to decline to correct it upon the idea that it works no injury. Presumably all error is preju- dicial, and to warrant the court in disregarding established error upon the theory that the other party is not aggi'ieved thereby it should be made very clearly to appear that such is the fact. Keith, P., 95 Ya. 789. Estates of Decedents. What are legal and what equitable assets — that is, assets which a creditor cannot reach by proceedings at law? 17 Gratt. 305, et seq. 94 Legal Aphorisms. It is an acknowledged doctrine, that in conflict of rights, those arising under our own laws, if not superseded in point of time, shall take precedence, ^'majis jus nostrum qiiam jus alienum servemums." The obligation of the sovereign to en- force his own laws, and protect his own subjects, is acknowl- edged to be paramount. 5 Pet. 526. The remedies of a creditor against a decedent's estate are : (1) An action at law against the personal representative. 2 Tuck. Bl. Comm. 112. (2) A suit in chancery against the lien or devisee for amount of estate or assets for which he is liable. V. C. 2668. (3) A separate bill in chancery to compel payment of his individual debt out of the funds in the hands of the personal representative. (4) A bill in behalf of himself and other creditor to ascer- tain and distribute both the real and the personal estate. As to the two foregoing remedies see Story's Eq. PI. §§99-102. (5) A bill of discovery against the personal or real repre- sentative of the estate of a decedent to discover the assets liable to the payment of his debts. 2 Tuck. Bl. Comm. 425 ; White V. Bannister, 1 Wash (Va.) 168; Duval v. Trent, 6 Munf. 29 ; Clarke v. Webb. 2 H. & M. 8 ; Polling v. Huff- man, 19 S. E. (W. Va.) 422. Estoppel. (1) Equitable estoppel is frequently called estoppel in pais. 100 Va. 91. (2) The doctrine of estoppel, as a general rule, applies only between parties and their privies, and as strangers are not bound by an estoppel, neither can they take advantage of it. Mauzy v. Sellars, 26 Gratt. 641 ; 28 Gratt. 437. Legal Aphorisms. 05 Estoppels aro odious in the law, and, being so, they ought not to be aUowed, unless they are very plainly and clearly made out. 2 Phill. Ev. 655. The law of estoppel is not so unjust or absurd as it has been too much the custom to repre- sent. 1 Grecnl. Ev. sec. 22. ''In the language of Judge Gaston, in Jones v. Sassee, 1 Dev. & Bat. R. 4:64, all estoppels, whether estoppels at com- mon law, or equitable estoppels, are founded upon the great principles of morality and public policy. Their purpose is to prevent that which deals in duplicity and inconsistency, and to establish some evidence as so conclusive a test of truth, that it shall not be gainsaid. But as the effect of an estoppel may be to shut out the real truth by its artificial representative, estoppels, whether legal or equitable, are not to be extended by construction. Xo man is to be precluded from showing the truth of his claim or defence, unless it be forbidden by a positive rule of law." 23 Graft. 321. Instances of estoppel in pais. 3 Hill 216; 4 Minor 1121. To set up inconsistent claims or defences. Dan. Chy. Pr. 385n 1 ; 48 L. E. A. 177 ; 1 Phil. Ev. 739 ; Sand's Suit in Eq. 325n, 272; 23 Graft. 370, and Michie's note; 30 Gratt. 652 ; 99 Va. 18 ; Id. 627 ; 93 Va. 415 ; Id. 245 ; 92 Va. 251 ; 94 Va. 376 ; 5 Leigh 1 ; 76 Va. 225 ; 20 Gratt. 544; Id. 552 ; 2 Gratt. 493; 17 Gratt. 132; Id. 160; 32 Gratt. 185; 6 Eand. 457; 88 Va. 361; 20 Gratt. 544; 100 Va. 507; 22 Gratt. 13; 88 Va. t>63 ; 103 Va. 305; 92 Va. 245. (2) A party is not bound by his statement of the legal consequences of the facts stated by him. It is for the court to judge what are those legal consequences. 17 Gratt. 167. (1) A party is not estopped, when erroneously relying on 96 Legal Aphorisms. two inconsistent rights, by first attempting to rely on the wrong one. 156 Mass. 193, S. C. ; 30 N. E. K. 692 ; 121 N. Y. 161, S. C. ; 24 K E. E. 272. Vendee Cannot Deny tlie Title of His Vendor. — No matter how destitute of title the landlord may be, or how clear the title of a stranger may be in the land, the tenant cannot deny the title of the former, nor affirm that of the latter in his defence of the landlord's action for the land. The same prin- ciple applies to the relation of vendor and vendee. The latter is estopped from denying the title of the former in an action at law to recover possession of the subject of the sale. 23 Gratt. 360. Estopped hy Conduct. — By her conduct, as disclosed by the record, the appellant is estopped from questioning the verity of the record. Her evident knowledge of the pendency of this suit and its object, her seeming acquiescence, and her delay and refusal to speak, though not served with process in the regular way, makes it proper for her to remain silent, now that others have obtained rights while she was standing by in silence, if not in actual acquiescence. It was not only compe- tent for her to speak in time and be made a party if she had not been, but it was her duty. 78 Va. 775. Evidence. It is desirable, as far as possible, that irrelevant and im- proper evidence shall not be heard by the jury, as it may not be possible entirely to remove the effect of it by its subsequent exclusion. 14 Gratt. 456. All testimony upon a question not in issue is irrelevant; and it is competent for the parties to object to its introduc- Legal Aphorisms. 97 tioii, or to move to exclude it^ or to ask the court to instruct the jiirv In disregard it. 24 Gratt. 72. But see 11 Gratt. 000. But all evidence proper to support the matter put in issue by the pleadings is admissible. Ci Tfand. 12. It often happens that the competency of eWdence may depend upon the existence of some other fact ; whether such fact exists is a preliminary question, to be decided by the pre- siding judge. His decision as to such fact cannot be revised; but his rulino- as matter of law that such fact renders the evi- dence competent or incompetent is the subject of revision; and, upon examination, in all those cases in which the admis- sion of the evidence is said to rest in the discretion of the presiding judge, we think it will be found that it is the de- cision of a preliminary fact upon which the finding of the jud^-e is conclusive, and which fact determines the compe- tency of the evidence. 129 Mass. 475. Testimony based upon the report of others is evidence, at least unless objected to as hearsay. 163 Mass. 404, 408, 409 ; Schlemmer v. By. 205 U. S. 9 ; but, see 42 S. E. (Ga.) 492 ; and 8 Va. L. Beg. 511, citing 10 Ark. 638. Prima facie evidence of a fact is such as, in judgment of law, is sufhcient to establish the fact ; and if not rebutted, remains sufficient for the purpose. The jury is bound to con- sider it in that light. 6 Bet. 632. It is such as remains suffi- cient, if not rebutted. 14 Pet. 334; 113 Mass. 6. A report of the decision of the Supreme Court of Ohio, given in evidence to prove the decision of that court in con- struing the effect of a deed of assignment. 13 Gratt. 441. See, also, 29 Gratt. 780. Omitting to produce evidence in elucidation, which is in 98 Legal Aphorisms. the power of the party or within his peculiar knowledge, shall be holden to turn every doubt against him. 1 Stark. Ev. 34 ; Cowen & Hill's notes to Phil. Ev., Vol. 1, p. 602. See, also, 32 Gratt. 649. As to not examining available witness, see Witness. In general, when a record is to be given in evidence, the whole record should be produced. Thus it is said where any record is exemplified, the whole record must be exemplified ; for the construction must be taken from the view of the mat- ter taken together. 3 Inst. 173 ; 3 Bac. Ab., by Bouvier (Phil. Ed. 1852). "Evidence" E, p. 536; and Chief Baron Comyn, says ''the whole record which concerns the matter in question ought to be produced." 4 Com. Dig. "Evidence" A, 4, p. S9 ; 2 Phil. Ev. 188. There may be cases, doubtless, in which by way of exception to the general rule, parts of the record have been held sufiicient for the purpose for which they were in- troduced; but in them there could be no objection to the introduction of the whole. 16 Gratt. 76. It cannot be laid down as a universal rule, that where written evidence of a fact exists, all parol evidence of the same fact must be excluded. Keene v. Meade, 3 Pet. 7. The mere existence of written evidence shall not exclude inde- pendent parol evidence to prove the same fact. The cases which establish this, conflict in no manner with the principle that where superior evidence may be had, such superior evi- dence must be produced. If a witness speaks positively as to date and amount of a payment, and the jury believe him, such testimony cannot be considered inferior to the receipt. In one aspect it is superior. For the receipt, when produced, is but a prima facie acknowledgment that the money has been ].i-:c;al Aimioihsms. 00 paid ; and tho circumstances under which it was obtained may be proved by a witness who was present at the time of giving- it. It may be proved that the receipt was fraudulently obtained; and then the receipt will amount to nothing, and the cause will rest on the parol evidence. 10 E. C. L, 137 ; 1 Eob. fold) Pr. 305. When a receipt is given for a pay- ment, the general opinion is that the payment may be proved as well by parol evidence of the fact as by the production and proof of the receipt, though the case of Handin's Adm'r v. Atkinson, 6 Eand. 574, has thrown some doubt on that ques- tion in this State. Moncure, J., in Bowles v. Elmore's Adm'r, 7 Gratt. 893. See Chattels. Execution. How Sheriff to Dispose of Money Made Under Execution. The form of the writ as directed by the act of Virginia, when returnable to court, is that the money shall be in court on the return day ; and there appears no excuse for omitting this duty, unless it shall have been paid to the creditor. The officer may certainly make such payment out of court, if no circumstance occur which legally obstructs or opposes it, such as an injunction from a court of chancery (in which case by the laws of Virginia, the monev must be returned), or au execution against the goods and chattels of the person to whom the money in his hands shall be payable. In the latter case it is still duty of the officer to obey the order of the writ, and bring the money into court, there to be disposed of as the court may direct. Opinion of the court in Turner v. Fendall, 1 Cranch 13(5 ; 1 Kob. (old) Pr. 533. If the sheriff has in his hands, as shcrijj . money belonging to the defendant, he ought 100 Legal Aphokisms. to bring it into conrt, and leave the court to direct the appli- cation. 2 Tuck. Com. 360-1; Steele v. Brown, 2 Va. Cases 246 ; Norris v. Cummej, 2 Rand. 330 & seq. ; 4 Minor 1021. Power of Court fo Make Proper Disposition of Money. If the legal and equitable right to the'money so brought into court be in a person against whose goods and chattels there is an execution in the hands of the same officer, the court may direct the money made under the execution in which such person is creditor, to be paid in satisfaction of the execution in which he is debtor. Opinion of court in Turner V. Fendall, 1 Cranch 137; Steele & Co. v. Brown, &c., gen. court. 2 Va. Cases 246. The power of the court to make such order is not confined to cases where sufficient effects o£ the debtor in the second execution cannot otherwise be found to satisfy the judgment. Idem. 1 Rob. (old) Pr. 534. Levy of, how made. 4 Va. L. Reg. 253. Where partnership effects or the property of joint tenants for the individual debt of one of the parties are levied on, the levy must be on the whole, at least on so much as that the interest of the individual will satisfy the debt, if so much property there be. 4 Minor 1017. In 1 Rob. (old) Pr. 526, it is said : Where there is judgment against one only of two co-partners, and execution against the goods and chattels of that co-partner is levied upon effects held by him in co-part- nershi]) with the other, the sheriff can only sell an undivided moiety of whatever effects the execution is levied on. In Hey- don V. Heydon, 1 Salk. 392, it appeared that Coleman and Hey don were co-partners, and a judgment was recovered against Coleman, and all the goods both of Coleman and Hey- Legal Aphorisms. 101 don wore taken in execution. .Held, that the sheriff must seize all, because the moieties are undivided ; for if he seize but a moiety and sell that, the other will have a right to a moiety of that moiety ; but he must seize the whole, and sell a moiety thereof, undivided, and the vendee will be tenant in common with the other partner. See, also, opinion of court in Shaver v. AVhite & Dougherty Co., :\Iunf. 113 ; and in 0,3 Va., 470, it is held that partners are joint tenants of the part- nership assets. Executors and Administrators. The general rule for the guidance of executors in the ad- ministration of their trusts is thus clearly and succiently stated by Judge Stanard, in delivering the opinion of this court in the case of Kee's Ex'r v. Kee's Creditors, 2 Gratt. 116, 128 : "The duties of the executor (he says) are to be per- formed under the obligations of sound judgment, acting on those considerations of worldly prudence which affect the safety of the pecuniary interests confided to his care. When such judgment so governed, is fairly exercised (and tested by the facts existing and known at the time it is exercised), is such as would probably be formed by a judicious man man- aaino- his affairs with reference to considerations of mere worldly prudence, the executor is justified in acting on such judgment ; and so acting, is not responsible for alleged losses resulting from his conduct." 14 Gratt. 281. "Co-executors, even though numerous, are regarded in law as but one person. The acts of one, within the scoix' of his authoritv, in the administration of the estate, are the acts of all. with this qualification, that at C(mnn(»n law each was re- sponsible only for osure would be easy, and the punishment immediate, in the dismissal of the suit as to such non-resi- dent, or in the prompt discharge of the defendant, where testimony is thus sought to be excluded; and on page 435: If the process of the court is abused, and a mere pretext made to give a color of jurisdiction, the corrective power of the court will be used in punishing the offence by a prompt dis- missal of the suit at the cost of the offending party. See, also, Sanger v. C. & O, R. R. Co. 102 Va, 86; S. C, 45 N. E. R. 750. Plaintiff cannot, for the purpose of obtaining jurisdic- tion over a party non-resident of the county, improperly join one who is a resident. 2() Gratt. 432 ; 49 Mo. 252, In a case of concurrent jurisdiction a party may elect be- tween his legal and equitable remedies. But having once made his election, he is bound by it. 25 Gratt. 153, 128 Legal Aphorisms. When Pendency of One Suit May Be Set Up to Defeat Anot]ie)\ — In Wick v. Jones, 4 Wallace, the Supreme Court of the United States said : When the pendency of a suit is set up to defeat another, the case must be the same; there must be the same parties, or at least such as represent the same interest ; there must be the same rights asserted, the same relief prayed for — the relief must be founded on the same facts, and the title or essential basis of relief must be the same. 76 Va. 27. In both suits the parties shall be the same, or at least shall be such as represent the same interests ; that the first suit shall be for the same matter as the second (though the second suit need not be for the whole matter em- braced in the first), and that the whole effect of the second suit shall be attainable in the first. 97 Va. 5-iS. JUEY. It is the proper province and duty of the jury, to weigh and consider evidence, and decide all questions of fact, and that the responsibility of a correct decision is placed upon them. And the safety, efficacy and purity of jury trial depend upon the steady maintenance and practical application of this principle. Shaw, C. J., 51 Mass. 270. The most usual mode of obtaining the opinion of the court on points of law, is for the party desiring it to move the court to instruct the jury. All that is necessary for this purpose is for him to state his case hypothetically ; and, if it be perti- nent to the cause, the court is bound to pronounce the law on the case thus stated. This is no invasion of the rights of the jury; for if the jury shall believe that the case as proved is different from that stated by" the party, the opinion of the court having no application to the case as provcnl, can have Legal Aphorisms, 129 IK) influence on the verdict of the jury. Cabell, J., 5 Raud. 11)4; 1 Rob. (old) Pr. 342. The presumption is that the jury is present during- the whole progress of the trial. It may some- times happen that the jury may be temiDorarily absent during the discussion of a question of law arising in a case. But this rarely occurs; and when it does occur, the party interested in the fact should take care to have it stated in the record. In the absence of such a statement, the appellate court will pre- hLune that that occurred which generally, rather than that which very rarely, occurs. Moncure, J., 11 Gratt. 405. ^Yhen the jury have found a verdict substantially, it is read to them in form. If any juror does not agree to it when so read, he may express his dissent, and the jury may retire and revise the verdict. But if, when asked in the usual manner whether they agree to the verdict, they all answer in the affirmative, it w^ill be sufficient to authorize it to be recorded. Per curiam. 21 Mass. 242. And it is believed that' this is the prevailing rule in Virginia, at least, in civil jury trials. Jus DlSPONENDI. For principles governing a man's right to dispose of his property, see 26 Gratt. 366. Justice Court. See Corporations. Labor Organizatioivs. Legality of, 113 Mass. 179. Laches. ' The maxim that the law assists those who are viailant, not those who sleep over their rights, applies not only to the operation of statutes, but to the action of suitors in the con- duct of their causes. 33 Gratt. 740; 98 Va. 124. 130 Legal Aphorisms. Land. When, and as soon as a valid contract is made for the sale of land, eqnity, which looks npon things agreed to be done as actually performed, considers and treats the vendor as a trus- tee for the purchaser of the estate sold and the purchaser as a trustee of the purchase money for the vendor, 1 Sug. on Vend. 191 (bottom). The purchaser is deemed and treated as the equitable owner of the land ; and subject to the lien of the unpaid purchase money, the title being retained, the equitable estate of the purchaser is alienable, devisable, and descendible, in like manner as real estate held by legal title. 1 Story's Eq. Ju., sees. 780-790, and other authorities; 75 Va. 340. A license is a permission or authority to enter the land and do certain acts, or series of acts, the parties not intending to convey anv interest in the land. * * * Thus a license to enter land and cut the timber, or to gather the growing crops ; so an agreement for a seat in a theatre, or other place of amusement, is a license merely. So, ordinarily, an agree- ment for lodgings in a boarding house, though the rooms the boarder is to occupy are designated, does not create an interest in land, but is merely a license — and so the use of a hall, not to be continuous, but only occasional and for a few hours on four separate days, and was not to have the exclusive occu- pation and control of it, but the key was never delivered to him, but remained with the owner, who, on the afternoons it was occupied under the contract, opened, lighted and closed it — it was a mere license, 139 Mass. 4. A license unper- formed may be revoked, but the party revoking must respond in damages for the breach of a contract for a license. Idem. Legal Apjiokisms. 131 Landlokd AST) Texjvaxt. A mero trespass, however, aggravated, does not amount to an eviction. 22 Gratt. 131 ; but other acts of the landlord going to diminish the enjoyment of the premises, besides an actual expulsion, will exonerate from the papnent of rent. 8 Cow. 732; 100 ]\rass. 201. Acts of a grave and permanent character which amount to a clear intention on the landlord's part to deprive the tenant of the enjoyment of the demised premises, amount to eviction. 20 Am. 11. 117; 120 X. Y. 345; 37 Am. St. E. 248 and note, as where the premises, through the landlord's neglect of duty, become untenable. 130 111. 137; 29 Am. St. E. 300; 48 Idem. 515. Landlord's liability for the condition of the premises at the time of the lease. Va. L. Keg. 799 ; 7 Id. 151. Landlord's liability to stranger or person visiting the tenant for defective premises. 120 Mass. 374; 8 Va. L. Reg. 222. Landlord's liability for defective premises. 6 Va. L. Reg. 799; 7 Id. 151,430. A contract of lease is from January 1st to December 31st. The tenant holds over. The tenancy terminates on December 31st, and on January 1st both dates given in the opinion. On that day a new term commenced. 27 Gratt. 214. That defendant held as tenant of the plaintiff, and not adversary, was a fact w^hich could be proved by parol evi- dence, and need Udt of necessity be proved by the production of the lease, though there may have been no reason for its non- production. It is Avell settled in England that the existence of a tenancy between thc^ parties may be shown by parol, though the demise be in writing. If the fact of the occupa- 132 Legal Aphorisms. tion of land is alone in issue, without respect to the terms of the tenancy, this fact may be proved by any competent oral testimony, such as payment of rent, or declarations of the tenant ; notwithstanding it appears that the occupancy was under an agreement in writing; for here the writing is only collateral to the fact in question. 21 Gratt. 19. Although a tenant "cannot show that his lessor had no title to the j^remises when the tenancy commenced, he may show that the landlord holds in violation of the laws of the State, or that his interest has since expired, or that he has sold and conveyed the land, or that he has been evicted by title paramount ; and that therefore he has no right to bring the suit." 23 Gratt. 361; 5 Eob. Pr. 261. Damages for breach of contract to repair cannot be set off against rent. 12 Wend. 5'J ; 15 Wend. 559. See 7 Ya. L. Reg. 357 ; 25 Wend. 672 ; 7 Hill 53. But it may be recouped. 7 Hill 53 ; but see 93 Va. 685 ; 100 Va. 714. iSTo agreement as to length of term— rent payable monthly — tenant from month to month. 19 Wend. 393 ; Id. 619. Measure of damages for failure to give possession or when tenant evicted. Kline v. McLain, 33 W. Va. 32 ; 10 S. E. 13. Notice to Quit. — Tenant disclaiming becomes a trespas- ser. 9 Gratt. 229 ; and is not entitled to notice to quit. 11 Gratt. 54&; 24 Gratt. 342. When notice is necessary. 9 Gratt. 232. A tenancy ends with the last day of the term. 98 Va. 257 ; 27 Gratt. 214; but, see 101 Va. 630. In 61 Mass. 348, it is said: The expiration of the notice must be with the expi- ration of the quarter, month or week. A notice to quit, which breaks into the quarter, month or week, is not a good notice. Legal Aphorisms. 133 Comyn. on Land and Ten. 2<)'.) ; -2'.] Wend. i')l\). And in Anderson v. Prindle, -lo Wend. Oil), it is said: Llcre the tenancy from month to month commenced on the first of Sep- tember. The notice to quit, therefore, if intended for the first of ^lay^ shonhl have been served on or before the first of April. In view of the fact that considerable conflict exists as to whether the notice to qnit shonld be given to the last day of the term or the first succeeding day, the suggestion of the learned judge of the Supreme Court of ^lassachusetts, in Sanford v. Llarvey and another, 65 Mass., on page 90, in the language quoted below is jjeculiarly opposite: If, for in- stance, in the present case, the notice to the landlord had been that the tenant would quit the premises and terminate his tenancy in one month from the day Avhen the rent should next become due and payable, that would have been a good notice to terminate the tenancy, because it designated a day with sufficient certainty within the knowledge of the tenant and landlord. Xotice to quit in this general form are frequently adopted in England. 2 Archb. X. P. 397, 398. A distress warrant cannot be levied upon goods removed by a tenant of specific apartments to other apartments in the same house, after thirty days subsequent to the termination of the lease of the first apartments. 1!) Wend. 554. Laws. Sec Foiiiis. Where the reason for a rule of law has ceased, the law itself ought to and does cease. Broom's' Leg. Max. (7 Ed.) 159 ; 98 Va. 408. We must follow the law, whither so ever it goeth. and even though it lead ns to apparcnl injustice and hartlship, 23 Gratt. 359, and the court is governed by the principle of 134 Legal Aphorisms. the law and not by the hardship of any particuhir case. 3 E.ob. Pr. 73 ; but, as said bj Keith, P., in SpiUman, Adams & Co. V. Gilpin, 93 Va., on page 702 ; hard eases should not make bad law, but hard cases do and should make the courts vigilant to discover and pursue a mode by which, without doing violence to established law and forms of procedure, the wrong may be redressed. The rules of law are not generally subject to be altered by statutory provisions introduced for a ditferent object. 2 Minor 124. Pleadings are always evidence of the law, Buller, J., 3 T. R. 161 ; and books of entries are the best authorities in the absence of decided cases. Ashhurst, J., 2 T. R. 10 ; 82 Mass. 238. State laws and decisions as rules of decision in the Fed- eral courts. 11 Va. L. Reg. 177 and note. Lien. Attorneys' lien on papers and on money and property in his own hand, or which has been brought into court through his efforts. Fowler v. Lewis, 3G W. Va. 141, S. C. ; 14 S. E. 456; 2 Rob. Pr. 519; 4 Minor 210; 99 Va. 81; 3 A. & E. Ency. of Law (New Ed.) 465. When he represents an in- fant, 1 Dan. Chy. 81. When creditor proving a debt is holder of collaterals. 2 Va. L. Reg. 120. A statutory lien can only exist when it has been perfected in the manner prescribed by the statute creating it. 94 Va. 702. In Paxton v. Rich, 85 Va. 378, .Tudge Lewis said: The Legal Aphorisms. 135 lien (of a judgment), and the judgment are inseparable, and the extinguishment of the latter is the extinguishment of the former. But not so, where there is a judgment for a debt secured by a mortgage, deed of trust, or a vendor's lien. There the lien is collateral to the judgment, and may be en- forced in equity, although the judgment be barred or annihi- lated. 94 Va. 345. Life Estate. It matters not how contingent or uncertain the duration of the estate may be, or how profitable is its determination, if it is capable of enduring for a life, it comes within the cate- gory of estates for life. 1 Wash, on Eeal Pr. 103 ; 32 Gratt. 756. Limitations. See Adverse Possession. The Statutes of Limitations in former times were no great favorites with the courts. But the spirit of modern opinion and of modern legislation is to regard them as stat- utes of repose. Their tendency is to afford protection against stale demands, by requiring the early settlement of claims when the true state of the transaction is known and capable of explanation. 29 Gratt. 388. It was said by Mr. Justice Swayne in Leffiugwcll v. Warren, 2 Black 599 : Statutes of limitations are now regarded favorably in all courts of jus- tice ; they are ''statutes of rei)0se." Usually they are fcnmdod in a wise and salutary policy, and promote the ends of jus- tice; and ill 1>(H v. Morrison, 1 Peters 360, Story, J., said: "The statute of limitations was intended to be, emphatically, a statute of repose. It is a wise and beneficent law, not de- signed merely to raise the prcsuiuptidu of payment of a just debt, from lapse of time, but to afford security against stale 136 Legal Aphoeisms. demands after the true state of the transaction may have been forgotten or be incapable of exxolanation, by reason of the death or removal of witnesses. The same strictness of pleading is not required in equity as at law. It is not common to plead the statute specially or formally in equity ; but only to rely upon it in genei'al terms in the answer. The only reason for requiring the defence to be made by plea or answer is that the plaintiff may have an opportunity, if he can, to take the case out of the operation of the statute. Anything in the answer which will apprise the i^laintiff that the defendant relies on the statute will be sufficient, if such facts be averred as are necessary to show that the statute is applicable. 13 Gratt. 344; 99 Va. 226. It is competent for parties to agree, on sufficient consid- eration, that the time for payment should be postponed, or that payment should only be made on a future contingency. 7 Gratt. 391; 1 Rob. Pr. 629; 2 Munf. 316, and conse- quently by agreement postpone the time from which the statute should begin to run. Randon v. Toby, 11 How. (U. S.) 519; 1 Rob. Pr. 629. An account settled and agreed between merchant and mer- chant takes it out of the exception. 3 H. & M. 10-1. Where there are mutual accounts between plaintiff and defendant, an item of the account on either side accrued within six years (5 years in Virginia, V. C. 2920) next be- fore suit brought draws after it the accounts on both sides, and takes a case out of the operation of the statute of limita- tions. Sickles V. Mather, 20 Wend. 72. Replication to plea that at the time of the sale of the goods, ''the plaintiff and the defendant were merchants, and that the goods were sold and Legal Aphorisms. 137 delivered by the plaintiff as such merchant, to the defendant as such merchant." 15 Gratt. 493. Election of remedies and its effect on the Statute of Limi- tations. There are cases where an injured party may have his election of remedies, as where there has been a tortious taking of his property, he may bring trespass or trover, or he may waive both and bring assumpsit for the proceeds when it shall have been converted into money. And if he chooses the latter mode of redress, the tort feason cannot, we think, allege his own wrong for the purpose of carrying back the injury to a time which will let in the statute of limitations. Lamb v. Clark, 5 Pick. 197 ; 17 Gratt. 132 ; 6 Eand. 457. In brin2:in2: an action for monev had and received, instead of trover, the plaintiff does no more than waive any com- plaint, with a view to damages, of the tortious act by which the goods were converted into money, and takes to the net proceeds of the sale as the value of the goods; subject, of course, to all the consequences of considering the demand in question as a debt, and amongst others to that of the defend- ant having a right of set-oft', if he should happen to have any counter-demand against the jilaintift'. Hunter v. Prinse]), 10 East. 392 ; 3 Eob. Pr. 399. When the statute once begins to run by a removal of the disability against an insane person or lunatic who is restored to sanity, it continues to run, notwithstanding insanity of the person whose rights are to be affected by the bar, again sujier- venes. 4 T. E. 307; 4 Taunt. 825; Angel on Lim. 147; Clark V. Trail, 1 Mete. (Kty.) 35. In case of fraud, the authorities are conHieting, whc^ther nt law the statute begins to run from the commission of the fraud, or from its discovery. In equity, however, it would 138 Legal Aphoeisms. seem to be well settled that the statute begins to run from the discovery of the fraud. 29 Gratt. 760. Matters of avoidance. 6 Va. L. Reg. 55S; 97 Va. 42. The statute cannot be availed of as a defence either at law or in equity, bv demurrer; defence to a pure statute of limi- tation (as distinguished from a special limitation prescribed by statute creating a new right, for example, six months' limitation under the mechanics' lien law, etc.) is by plea or answer and not by demurrer. 6 Va. L. Reg. 508 ; 99 Va. 227. And in 33 Gratt. 11, the defence in the answer was made as follows: This resj^ondent relies on the defence of the statute of limitations as if specially pleaded, and on the length of time which has elapsed since the said transaction now com- plained of took place and the changed condition of affairs as ground for refusing to entertain the complainant's bill. Quere. — When the statute fixes a special limitation, as, for instance, of a mechanic's lien, can a personal representa- tive claim the benefit of section 2919 of the code. 6 Va. L. Reg. 583. Form of instruction on pure statute of limitations when no opportunity to plead the statute is given. 92 Va. 22. There is a recognized distinction between the statute of limitations and the presumption of payment from the lapse of time, the condition of the parties, their relation to each other, &c. In the one case the bar is absolute ; in the other it is denominated natural presumption of payment, and may be rebutted. 91 Va. 514. Lis Pendens. At common law and in chancery and under the statute. 2 Rand. 101, et seq. Legal Aphorisms. 139 The rule as to, and its effect. 24 Gratt. 471. Form of. 24 Gratt. 471 ; Sam's Att. IGl. Lost Property. How to determine title to. 1 Va. Leg. 937. Malicious Arrest axd Imprisonment for Debt. Burden is on plaintiff to show want of probable cause and malice. 75 Va. 179. Marshalling Assets. 2 Va. L. Eco-. 701 ; 6 Id. 626. Marshalling Securities. It is a rule of equity said to be well established in this country, that when one has a lien upon two funds, and an- other a posterior lien upon only one of them, the former will be compelled, first, to exhaust the subject of his exclusive lien, and will be permitted to resort to the other only for the deficiency; but this rule is generally applied, it seems, only in cases where to compel a resort to the singly charged fund would not be productive of any additional risk, injury or delay to the double creditor. 33 Gratt. 581 ; 2 Va. L. Reg. 625 ; 6 Va. L. Eeg. 48 ; 8 Va. L. Eeg. 631-2. But, see 2 Va. L. Eeg. 701. Where the doubly secured creditor is met by a posterior creditor secured on each fund. 2 Va. L. Eeg. 625. Master and Servant. Injury to servant from defective instrumentalities. 4 Va. L. Eeg. 607. In process of destruction, McFarland v. Mfg. Co. 97 111. (Ajip.) 629, 631. 140 Legal Aphorisms. Memorandum for Clerk. Is an official record. 102 Va. 334. Is the chart by which the clerk is to be giiicled in maturing the cause for hearing, so far as parties are concerned. Id. 332. Is a document by which an error in the writ may be amended, on the ground of clerical misprision. Marshall, C. J., 2 Brock 14. Merger. The doctrine of merger is well understood. It is described as the annihilation of one estate in another. It takes place usually when a greater estate and a less coincide and meet in one and the same person, without any intermediate estate, whereby the less is immediately merged — that is, drowned in the greater. To this result it is necessarv that the two estates should be in one and the same person, at one and the same time, in one and the same right. Garland v. Pamplin, 32 Gratt. 305, 315 ; 75 Va. 727. Mistake. The distinction between mistakes of law and of fact, as a foundation of equitable relief. 21 Gratt. 320. An error of fact takes place, either when some fact which really exists is unknown, or some fact is supposed to exist, which really does not exist. But when a person is truly ac- (piainted with the existence or non-existence of the facts, but is ignorant of the legal consequences, he is under an error of law. 1 Wend. 360; 20 Wend. 170. To obtain relief on the ground of mistake in a written contract and especially a contract coniiug within the purview of the statute of frauds, the mistake sbjiild be fully and Legal Ai'iloki.sms. 141 clearly proved. Thompson v. Jackson, 3 Rand. 504. In all such cases, says Story, if the mistake is clearly made out by proofs entirely satisfactory, equity will reform the contract, so as to make it conformable to the precise intent of the parties. But if the proofs are doubtful and unsatisfactory, and the mistake is not made entirely plain, equity will with- hold relief, upon the ground that the written paper ought to be treated as a full and correct expression of the intent, until the contrary is established beyond reasonable controversy. 1 Story Eq. Jur., sec. 152. And again he says: Relief will be granted in the case of written instruments only where there is a plain mistake clearly made out by satisfactory proofs. It is true that this, in one sense, leaves the rule somewhat loose, as every court is still to say what is a plain mistake, and what are proper and satisfactory proofs. But the qualification is most material, since it cannot fail to o^^rate as a weighty caution upon all judges ; and it forbids relief whenever the evidence is loose, equivocal, contradictory, or in its texture, open to doubt or opposing presumptions. Id. sec. 157; 9 Gratt. 279. See, also, 29 Gratt. 353. Where a seal is omitted to a deed of conveyance or to a bond by accident or mistake a court of equity will grant relief. In the case of Trustees, &c. v. Bryson, 34 S. Ca., 416 S. C. ; 13 S. E. 619, 624. But it is contended that the paper purporting to be a conveyance of the land in cpiestion to the appellant lacks a seal, and therefore could not operate as a transfer of the legal title ; that, at most, the ap^iellant has only an equity which must yield to the alleged su^x^rior equity of the plaintiifs. It will be observed that the terras of the paper itself show conclusively that it was not intended 142 Legal Appiorisms. as a mere asreement to convey, but as an actual conveyance. It has all the essential elements of a conveyance of real estate, except the seal ; and its omission was clearly accidental, and certainly not intentional. It concludes with the words : "Wit- ness my hand and seal," and purports to have been "signed, sealed and delivered" in the presence of two subscribing wit- nesses, one of whom goes before the proper officer and makes affidavit that he saw the grantor "sign, seal, and as his act and deed deliver the within written deed," And the paper is spread upon the records of the proper office as a deed ; so that there cannot be a doubt that the intention was to execute a formal deed, and the parties, as well as the witnesses, together with the recording officer, manifestly supposed that the paper was what it was intended to be — a valid deed. This being the case, a court of equity will regard the paper as a deed, and will supply this accidental omission of the seal. 1 Pom. Eq. Jur., sec. 383; Wadsworth v. Wendell, 5 Johns. Chy. 224 ; Bernard's Tp. v. Stebbins (cited also as Inhabitants v. Stebbins), 109 U. S. 341, S. C. ; 27 L. C. P. 956; Pope v. Montgomery, 24 S. Ca. 595. See, also, 24 Vt. 181 ; 15 E. I. 195. In Gaylord v. Pelland, 169 Mass. 359, S. C. ; 47 K E. 1019, the principle is applied where there was the accidental omission of a seal on a mortgage. See Roses notes to the U. S. Decisions to the case of Inhabitants v. Stebbins uhi supra. Whilst mistake, in matter of law, cannot in general be admitted as ground of relief, the maxim juris ignorantia non excusat is not universally applicable in equity. "Mistake in law, to be a ground of relief in equity, must be of a material nature, and the determining ground of the transac- tion." * * * It may be a misapprehension of the law, or of Legal Aphorisms. 143 their rights, by both parties, "or it may be a misapprehension of the law, or of his private right, by one of the parties alone. Kerr on Fr. (S: .Mis. :]!)(). Brown v. Rice, 20 Gratt. 470. Mortality Tables. As evidence of the dnration of life. 100 Va. 8(32. These tables were made for the purpose of life insurance and an- nuities, where the very shortest time is fixed as affecting pecuniary risks. They are regarded as falling short, in most instances, of the actual duration of human life. Mulcains v. City of Janesville, 67 Wis. 37; 100 Va. 371. Mortgage. It is true that in discussions in courts of equity a mort- gage is sometimes called a lien for a debt. And so it certainly is, and something more ; it is a transfer of the property itself, as security for the debt. This must be admitted to be true at law; and it is equally true in equity; for in this respect equity follows the law. It does not consider the estate of the mortgagee as defeated and reduced to a mere lien, but it treats it as a trust estate, and according to the intention of the parties, as a qualified estate, and security. When the debt is discharged, there is a resulting trust for a mortgagor. It is therefore onlv in a loose and general sense that it is sometimes called a lien, and then only by way of contrast to an estate absolute, and indefeisible. Conrad v. The Atl. Ins. Co., 1 Pet (U. S.) 441. If the instrument be made as a security for the payment of a debt, or the performance of a duty, it is a mortgage. And the substance, and not the mere form, of the instrument is to be regarded. It is of no consequence that it is called by 144 Legal Aphorisms. a wrone' name. The effect of the instrument will ascertain its legal character. 18 Pick. 304. Once a mortgage, always a mortgage. The equity of re- demption is an inseparable equitable incident of every mort- gage. It is wholly a creature of equity, and cannot be de- feated, restrained, evaded, or in any way impaired by agree- ment of parties as long as the mortgage continues a security. An irredeemable mortgage is a legal solecism. Hence the ex- pression "once a mortgage, always a mortgage." What is meant by this is, that whenever and as soon as a mortgage is created by the act of the j^arties, equity at once annexes in- separably a right of redemption, independent of and para- mount to the will of the parties. It is not meant, however, that after a mortgage has been once created, the mortgagee may not become the purchaser from the mortgagor of his equity of redemption. He may become such purchaser, thus combining the legal and equitable estates, and his purchase will be valid, if, under the jealous scrutiny of a court of equity, it is shown to be for an adequate consideration, that no undue advantage has been taken of the necessities of the mortgagor, and that it is in all respects fair. 29 Gratt. 35. Principles almost as stern are applied as those which govern where a sale by a cestui qui trust to his trustee is drawn in question. He must hold out no delusive hopes ; every doubt must be solved against him. Villa v. Kodriquez. 12 Wall 339 ; 30 L. Ed. 406 ; 101 Va. 95. A release of the equity of redemption will not be inferred from equivocal circumstances or loose expressions. It must appear by a writing importing in terms a transfer of the mortgagor's interest, or such facts must be shown as will Legal Aimiokisms. 1-15 estop him afterwards to assert any interest. See 1 Jones on Mort., sec. 340; 101 Va. 92. Conrts have re-established mortgages in behalf of pur- chasers and others entitled to redemption which have been discbai'ged of record in ignorance of the existence of judg- ment liens acquired subsequent to the mortgage. In many cases the courts will keep the encunibrancc alive, or consider it extinguished, as will best secure the purposes of justice and the just intentions of the parties. Indeed, the mortgage will be kept on foot, if necessarj^, for the purposes of justice, al- though the interests of the mortgagee and the equity of re- demption unite in the same ]5erson. It has been very properly said, the doctrine of subrogation, at Urst applied in behalf of those who were bound by the original security with the debtor has been greatly eidarged and the principles modified to meet the circumstances of cases that have arisen between different classes of sureties and creditors, so as to do substantial justice and equity in each case. (Citing authorities.) 75 Va. 414; 100 Va. 433. When a mortgage is made to secure an existing debt or obligation, the debt or obligation intended by the parties to be secni-ed l)y the mortgage may be identified and proved by jiarol, although differing materially from the actual descrip- tion thereof in the mortgage deed. Melvin v. Fellows, 33 X. H. 401 ; Bank of Utica v. Finch, 3 Barb. Chy. 293 ; Hall v. Tay. 131 Mass. 194. Mortgage of after acquired property. 5 Va. L. Reg. 873. Foreclosure and sale and personal decree for balance. 2 Va. L. Reg. 370; but, see 93 Va. 274. 146 Legal Aphorisms. Mortgagor and Mortgagee. Under what circiinistances and how the first or the second mortgagee may secure to himself the rents of the mortgaged premises. 10 Gratt. 28. The interest of mortgagee in a mort- gage of real estate given to secure a debt is but a chattel in- terest. 2 Vern. ,294:; 77 Cali. 383; Merwin E. & Eq. PI. 90, 359 ; 5 K H. 420 ; 50 K J. Eq. 547. Action by junior against senior mortgagee, who makes way with the mortgaged property. Stewart v. Long, 44 N. E. 63. Motions. Where the proceeding is not according to the course of the common law, but under a statute giving a summary remedy, it should appear by the record of the judgment that the case comes within the statute, and that the course prescribed by the statute has been followed. 7 Rob. Pr. 16. Pleadings on Trial of a Motion. — In the case of Super- visors V. Dunn, 27 Gratt. 608, on the trial of a motion on a sheriff's bond, the defendants tendered the pleas of nil debet, payment, non-dainnificatus and conditions performed; and, on objection by the plaintiffs the court excluded the pleas of nil debet and non-damnificatus. On appeal, p. 620, the court say: It is somewhat difficult to understand what was the object or necessity for the various pleas tendered by the de- fendants. The proceeding was a mere motion, founded upon a notice, upon which no formal pleadings were required. It was competent for the defendants, as well without as with the pleas offered by them, to make every defence those pleas sug- gested. And in the case of State Savings Bank v. Baker, 03 Legal Aphorisms. 147 Va., it is said in the statemont of the case on pagv 511 : There does not appear to hav-e been any pleadings on the part of the defendants. Xo allusion is made to this fact, in the opinion of the court. It is submitted, nevertheless, that the cautious practitioner will see to it that an issue to be tried is made up and shown by the record. And this, although the court say in the case of Hall v. Ratliff, J>.'5 Va. p. ;^28: As the proceeding was a mere motion, formal pleadings were not requirt-d. It was competent foi- the defendants, as well without as with pleas, to make any proper defence. Board of Supervisors v. Dunn, kc. -Il Gratt. 608, 021; Buuch, Ex'or. v. Fluvanna County, 8-6 Va. 452 and 454; 4 Minor's Inst. (1st Ed.) 1090. Aliter when jury is had, V. C. 3213. !N'ame. According to liyckman v. Shotbolt Dyer, 279b ; Field v. Winslow Cro. Elis. 897 ; Clark v. Istead, 1 Lutw. 894, and Gould, &c. V. Barnes, 3 Taunt. 504, if a declaration against a defendant, by one Christian name, as for instance Joseph, state that he executed a bond by the name of Thomas, and there be no averment to explain the difference, such as that he was known by the latter name at the time of the execution, such a declaration would be bad on demurrer, or in arrest of judgment, even after issue joined on a plea of non est factum, 4 Rob. Pr. 103. In describing the bond it should be stated to have been made by W. B. ''by the name of W. B. & Co., by which name, as well as bv the name of W. B. the said defend- ant is called and known." - * ^- To complain, as is often done, "of W. B., otherwise called W. B. &: Co." as having executed the instrument, without otherwise explaining the 148 Legal Aphoeisms. discrepancy, is at all events awkward, and is said to be an error fatal on demnrrer (because a party cannot in law have two distinct names of baptism), and not less fatal upon the plea of non est factum^ on the ground of variance, -i Minor 692. Negligence. The question for the jury always is, was the act, taken in connection wuth all of its attending circumstances, negligent ? 93 Va. 198. And the plaintiff must come prepared with evi- dence to show that the intention was unlawful, and that the defendant was in fault ; for if the injury was unavoidable and the conduct of the defendant was free from blame he will not be liable. 2 Greenl. Ev. sees. 85 to 92 ; 60 Mass. 295-6. As a rule, negligence is not presumed. But there are cases where the maxim res ipsa loquitur is directly applicable, and from the thing done or omitted negligence or care is pre- sumed. 16 A. & E. Ency. of Law (1st Ed.) 448. When the physical facts of an accident themselves create a reasonable probability that it resulted from negligence, the physical facts themselves are evidential^ and furnish what the law terms evidence of negligence in conformity with the maxim, res ipsa loquitur. 100 Va. 413. When the presumption of negligence arises. 8 Va. L. Eeg. 342 ; 100 Va. 409. Contracts against one's own negligence in matter of purely private concern are valid. 5 Va. L. Reg. 560 ; 8 Idem. 194. One not a common carrier may contract against negli- gence so far as it concerns injury to proiDerty, but not to per- son. 175 U. S. 91. Legal Apkokisms. 149 Several instances of injury giving right of action to parties not privies, as, for instance, selling poison by mis- take to one person which is taken by another. 41 S. E. 190. Selling one medicine for another medicine to the injury of a third person. 41 S. E. 190; 14 Allen 295; 54 L. R. A. 854; 56 Am.. Dec. 563. Injury from runaway horse left un- guarded. 84 Va. 313; 167 Mass. 549, S. C. ; 46 K E. 57; 14 Allen 297 ; 24 X. E. 245 ; 57 L. E. A. 628 ; 58 Vt. 590, S. C; 3 Atl. 484; 11 Am. St. R. 458; 105 Mass. 342; and act of third party causing fright of horse does not prevent recovery. Chase on Torts 34 ; 107 Mass. 104. Measure of damages in actions for personal injuries re- sulting from negligence. 103 Va. 389; R. & D. R. R. Co. v. Allison, 12 S. E. 354; 57 S. E. 505; 101 Va. 399; Ins. G. 104 Va. 748 ; In. So. R. Co. v. Scott, 57 S. E. 505. The court say: In R. & D. R. Co. v. Allison, 86 Ga. 145 ; 12 S. E. 352, 11 L. R. A. 43, it was held that ''no fixed rule exists for estimating the amount of damages from permanent injuries to the person. The amount should be reasonable and just to both parties, and should compensate the injured one for the loss of money which he would probably earn had not the injuries occurred. While it is proper to prove the age, habits, health, occupation, expectation of life, ability to labor, and the probable increase or diminution of that ability with lapse of time, the rate of wages, etc., and then leave it to the jury to assess the damages, it is iiupropor to allow ])roof of a par- ticular possibility, or even i>robability, of any increase of wages by appointment to a higher public office, especially where the appointment is somewhat controlled by political reasons. 150 Legal Aphokisms. Gross negligence is the omission of that care which even the most inattentive and thoughtless men never fail to take of their own concerns. 33 Gratt. 390. Eolfe B. thinks there is no difference between negligence and gross negligence — that it is the same thing with a vitu- perative epithet. 11 M. & W. 115 ; 2 Eob. Pr. 515. It may, says Lord Denman, well be doubted whether between gross negligence and negligence merely any intelligible distinction exists. 42 E. C. L. S54; 2 Eob. Pr. 535. Contributory negligence is a want of ordinary care upon the part of a person injured by the actionable negligence of another, combining and concurring with that negligence, and contributing to the injury as a proximate cause thereof, with- out which the injury would not have occurred. 7 A. & E. Ency. L. (new Ed.) 371, adopted, 8(3 Ala. 372; 18 Ore. 189 and 38 W. Va. 40; Idem, note 3. Though there may have been negligence on the part of the plaintiff, yet unless he might, by the exercise of ordinary care, have avoided the consequences of the defendant's negligence, he is entitled to recover. 6 Gray 72 ; H Kob. Pr. 1028. Instruction upon Burden of Proof-. — The jury are in- structed that the burden is on the plaintiif to prove the negli- gence of the defendant company as charged in the declara- tion ; and that if the defendant relies on the contributory negligence of the plaintiff as a defence, the burden is on the defendant to prove such contributory negligence, unless it is disclosed by the plaintiff's evidence, or may be fairly inferred from all the circumstances of the case ; and in the absence of such proofs and inferences from the circumstances, the plain- LrxiAL Ai'iiOKiSMS. 151 tiff is presumed to have been without fault. 102 Va. 507; S. C. 40 S. E. 77<',. Xegotiable Paper. Effect of filling blanks in. 7 Va. L. Keg. 357, 642. A note is payable at any time on demand on the last day of grace, or day it becomes due. Bnt such a rule may be modi- fied by the terms of the note ; and making a note payable at bank is making it payable within usual banking hours, and on demand and refusal of payment, by the maker at any rea- sonable time on the last day of grace, when not payable at a bank, and after the end of the usual banking hours of the bank, if payable at a bank, the note is due and payable, and an action may be innnediately commenced against the maker, and after notice of its dishonor to the endorser against him. 42 Mass. 51. One losing such an instrument should immediately give notice of his loss to the public, in such a manner as is most likely to prevent innocent parties from taking it. 2 Rob. Pr. 507. New Tkial. A court of law will grant a new trial, if a judge refuse evidence which ought to have been received or receive evi- dence which ought to have been rejected. 22 Gratt. 11>2. Where the chances are equal, that the verdict resulted from the etror of the judge, a new trial will be granted. 27 Gratt. 452. The court may grant a new trial where the verdict is con- trary to law or evidence, l)Ut the duty of doing so is not always imperative. There are various considerations which 152 Legal Aphoeisms. may be brought to bear upon its discretion ; such as the doubt- ful character of the question, the hard or unconscionable nature of the action or defence, the belief that the verdict conforms to the substantial justice and equity of the case, and others that might be mentioned. It is the constant practice of the courts to sustain verdicts that attain substantial jus- tice, though not strictly warranted by the evidence or strict adherence to legal principles. 2 Gratt. 23 ; 22 Gratt. 569 ; 4 Minor 927. Setting aside verdict for misconduct of jurors. 8 Va. L. Keg. 383. A venire dc novo and a new trial are very different things ; they agree in some things, but differ in many. They agree in this — that a venire de novo must be awarded in both cases, and that the court may, or may not, grant either of them. But they differ, first, in this, that a venire facias de novo is the ancient proceeding of the common law ; a new trial is only a new invention, introduced on account of the severity of the judgment in attaint, to avoid which it was thought better to proceed in a milder way; and so new trials were introduced. They likewise differ in this respect, that new trials are generally granted where a general verdict is , found; a venire facias de novo upon a special verdict. But the most material difference between them is this: That a venire facias de novo, must be granted upon matter apparent upon the record ; Init a new trial may be granted upon things out of it, if the record be ever so right ; if the verdict appear to be contrary to the (law or the) evidence given at the trial ; or if it appear that the judge has given wrong directions (or has admitted or excluded evidence improperly). In cither of Legal Ai'iiorisms. 153 those cases, a new trial will be granted; hnt it is otherwise as to a venire facias dc iioro. which can only he granted in one or the other of these eases: First, if it appear u\)(m the face of the verdict, that the verdict is so imperfect, that no judg- ment can be given upon it ; second, where it appears that the jury ought to have found other facts differently. 2 H. & M. 327. Nil Debet. Where the deed was the foundation of the action, although extrinsic facts are mixed with it, the defendant, if he deny his execution of the deed set forth in the declaration, should plead non est factum, and nil debet was not a sufficient plew. (But the plaintiff must demur to the plea of nil debet, and cannot object to the plea after verdict. 2 Va. Dec. 590; 1 Johns. E. 509; 2 Johns. R. 183; 8 Johns. R. 83) as in debt for a penalty on articles of agreement, or on a bail bond, or on a bond setting out the condition and breach. And if in these cases 7iil debet were pleaded, the j)laintiff ought to de- mur, for if he did not, he would have to prove every allega- tion in his declaration, and the defendant would be at liberty to avail himself of any ground of defence which in general might be taken advantage of under the latter plea. 1 Chitty PL (7 Am. Ed.) 518 ; or instead of demurring, move to reject or strike out. The plea of nil debet in debt for rent by indenture, stands on peculiar grounds, and is an exception to the general rule of pleading, where the plaintiff counts on a record or spe- cialty. We have already seen that the plea is not allowed in debt on a bail bond, a town collector's bond, a recognizance of bail, or on a s])ecialty for luA accepting and paying for stock according to contract. 2 Hill 235. 154 Legal Aphoeisms. Nor is it allowed on bond given upon the issuing of a for- eign attachment, -i Blackf. R. 553. In this case, Dewey, J., said: "There is no distinction, as to the validity of this plea, between a single bill, and a bond with a condition, whatever may be the character of the condition. When the deed is the foundation of the action, although extrinsic facts may be mixed with it, nil debet is not a sufficient plea. When the specialty is but inducement, and matter of fact the founda- tion of the action, nil dehet is a good plea. It is upon this princij)le that this plea is allowable to debt for rent reserved by indenture of demise ; the lease is the inducement, and the arrears of rent the gist of the action. It is, however, observ- able that the usual mode of declaring practiced in these cases, of setting out a demise without stating it to be under seal (when in fact it is so) is an exception to the general rule of pleading." Id. 554. The general doctrine was applied in debt on a bastardy bond. Id. 435. x\nd in debt on a sealed note. 3 Mo. E. 70. If nil dehet is not demurred to, however, it is said to be sufficient to put the plaintiff to proof of every material allegation in the declaration, the deed included (1 Chilty PI. 424, Phila. Ed. 1828, citing 5 Esp. R. 38; 2 Wils R. 10 and 2 Saund. 187a. n. 2.) See, also, 2 Stark, ev. 140, note u (3 Am. Ed.) ; 8 K H. R. 22, 28 ; 2 Phil. Ev. (7 Ed.) 168; 1 Con. R. 670, 1, 676. But see 2 Stark. Ev. 270, n. (6 Am. Ed.), which is thus: It seems that if issue be taken on the improper plea of nil dehet to a declaration on a bond, the execution of the deed stands admitted. On such an issue taken in an action by executors, on a bond to the testator, evi- dence was admitted of an admission of the amount of the debt i»y the defendant, and the plaintiffs recovered without proof Legal Aphorisms. 155 (if the bond. York Sniiniier Assizes. Cor. Bailey, J. Note of the reporter to the case of Gates v, Wheeler, 2 Hill on page 236. Where plaintiff, in an action of debt on a bond, instead of demnrring, replies to a plea of nil debet, he will be put upon proof of every allegation in his declaration, and the defendant may avail himself of any ground of defence which, in general might be taken advantage of under that plea, 3 Enc, PI. and Pr. p. 664; 4 Col, 53 ; 4 How, 146 ; Bart, L. P, Hughes V. Kelley, 2 Va. Dec. 590 ; 30 S, E, 387, Proofs That May Be Made Under the Plea of Nil Debet. The defendant may prove at the trial coverture when the promise was made, lunacy (Contra. 4 Cow. 207), duress, in- fancv, release, arbitrament, accord and satisfaction (contra 3 Call 235: 2 Greenl. Ev, sec, 2!»), payment, taking care to file an account so as to give plaintiff notice of its nature where the account is necessary, 90 Va. 775 (and subject lo the qualification that without filing an account with his plea the defendant may give in evidence parol admissions of the plaintiff that only part of the debt is due and no specific pay- ment is relied on, 8 Gratt. 557), a want of consideration for the ]tromises, failure (93 Va. 678), but see 5 Rob. Pr. 577, note), or fraud in the consideration, a former judgment for the same cause of action (but the defence is not then conclu- sive, as when it is specially pleaded (4 Elinor 774; 7 Rob. Pr, 232-236) illegality in the contract, as gaming, usury, (Src, nr that the contract was void by the statute of parol agi'ee- ments ; and in short anything which shows that there is no existing debt due. (See 93 Va. 684.) The statute of limita- tion, bankrnptcy, tc^nder and (a cnstdm <»r usage of trade 156 Legal Aphorisms. where it will excuse non-performance of a duty prescribed by law (5 Gratt. 24), and a warranty (6 Gratt. 397) are believed to be the only defences which may not be proved under this plea, and they are excepted because they do not contest that the debt is owing, but insist only that no action can be main- tained for it. 4 Minor 770. (Enclosures in brackets have been interpolated.) ISToMiNAL Plaintiff. The beneficial owner of a bill of exchange or negotiable note, which is payable to bearer, or endorsed in blank, may, says Walworth, Chan., institute a suit thereon in a court of law, in the name of any one who is willing to allow his name to be used for that purpose ; and where the defendant has no legal or equitable defence to the bill or note, as against the real owner thereof, he cannot be permitted to show that the nominal plaintiff, in which name the suit is brought, is not the real party in interest. 14 Wend. 580. Decisions on simi- lar principles have been made in Massachusetts. (9 Mass. 423) and Pennsylvania (11 S. & R. 181, 2 Rob. Pr. 229). The legal title vesting in the plaintiff, it is no ground of de- fence that the beneficial interest is in another, or that the plaintiff, when he recovers, will be bound to account for the proceeds to another. 16 Pick. 382; 3 Rob. Pr. 3. And it is of no sort of consequence to the maker, whether the promisee shall put the money in his own pocket for his own use, or pay it over honestly to him to whom it has been legally or equit- ably transferred. That is a consideration with which the promiser has no concern; and if the action is brought for the benefit of the endorsee and Ixmn fide holder, without any ob- jection on the part of the payee, it furnishes no legal or equit- Legal Atikjimsms. 157 able (lofenee to the maker. He is not prejudiced. He may prove, it" he can, that the note was paid before it was en- dorsed, and so was functus officio. He has all the rights of set-otf and every legal and equitable defence which he could have, if the promiser was eventually to keep the money for his own use. 19 Pick. 46. The only cases in which a third person has the exclusive riaht to the control of an action at law are where he has ac- quired the whole interest of the nominal plaintiff, either by his voluntary act, or by operation of law. 131 Mass. 136. XoN Assumpsit. Mr. Minor, Vol. 4, p. 774, says: "The fact is undeniable that for more than a century past, there have been admitted under the plea of non assumpsit, in all actions of assumpsit, whether founded on an implied or an express promise, any matter of defence whatever (with the exceptions, the same as in the case of nil debet, ante p. 770 (to which exceptions it is suggested should be added "a custom or usage of trade where it will excuse the non-performance of a duty prescribed by law (5 Gratt. 24), which tends to deny the defendant's lia- bility to the plaintiff's demand.) (Citing authorities.) Thus a former judgment for the same cause of action may be given in evidence under the general issues of nil debet and' non assumpsit, but the defence is not then conclusive, as it is when sjx'cially pleaded. (Citing authorities.) Under that plea the defendant might give in evidence various matters of defence, although they admitted that a contract had in fact been made, but denied that it was in law obligatory upon the defendant, as that another person ought to have been made co-plaintiff (76 Va. 169) (or as stated in 158 Legal Aphorisms. note that the contract was made with one of the plaintiffs above (1 Esp. E. 178), or that it was not made by all the de- fendants against whom the action is bronght (2 Johns. R. 213) ; also the defendant's incapacity to contract; as that at the time the snpposed contract was entered into, the defendanr was an infant, a Innatic, or drnnk, or a feme covert. Bnt coverture, which had taken place since the making of the con- tract always must have been pleaded in abatement. So under 7wn assumpsit the defendant might give in evidence that he was under duress ; and the want of a sufficient, or a legal con- sideration for the contract (95 Va. 391; 91 Va. 445), or illegalitv in the contract itself, mie'ht be o-iven in evidence under this plea (99 Va. 394) as gaming, usury, stock-jobbing act, (fcc. ; or that the plaintiff was an alien enemy at the tune the contract was made ; or that the contract was void by the statute against frauds. So a release or parol discharge before breach ; or an alteration in the terms of the contract ; or non- performance by the plaintiff of a condition precedent ; or that the debt was not due when action brought (6 Ya. L. Reg. 126; see Action infra) ; or that the contract was performed by payment, kc. ; or that it afterwards became illegal ; or that it was impossible to perform it, might, when they consti- tuted a sufficient defence, have been given in evidence under this- plea. 1 Chitty PI. (7 Am. Ed.) 511. He may show that he offered to perform his part of the contract and was prevented by the plaintiff (13 Johns. R. 56), or that the con- sideration was different from that stated in the declaration, or either that he did not make or did not break the promise alleged, or that the contract was not in fact made. 5 Rob. Pr, 255. References in brackets interpolated. Defence of action prematurely brought. See Action. Legal Ai'uouis.ms. 150 Non-Detinet. This plea applit-s where the defeiidaiit means to deuv that he detained those goods; for examph', where he never had possession thereof and therefore does not detain them. The word "detain" in the declaration is considered to mean that the defendant withholds the goods and prevents the plaintiff from having the possession of them. The detention com- plained of is an adverse detention ; and such detention is denied by the plea of noii detinet. 6 Rob. Pr. 589. Whenever the act of limitations would l)e a bar to an action for property, it gives to the defendant such a title to the pro|ierty as enables him to maintain his defence under the general issue, and would even enable him to maintain an action for the propei-ty. 1 Rob. Pr. 506 ; 16 Gratt. 240. N^ON EST Factum. It is abundantly settled, that in covenant or debt the plea of noti est factum puts in issue the giving of the deed only, and that it is not necessary in such a case for the plaintiff to prove the averments or breaches contained in his df^clara- tion. The plea admits all the material averments. 7 Wend. 196. Proof hy Defendant under Nan Est Factum. — Under the issue of non est factum, the defendant may prove that the deed was delivered, and still remains as an escrow, or he mav take advantage of any material variance between the deed as set forth by the plaintiff and the deed produced at the trial ; or may give any evidence showing that the deed either was originally void, or was made void by matter subsequent to its execution, and before the time of pleading; for it is to ICO Legal Aphorisms. I the time of pleading that the averment relates. Thus, the defendant may show nnder this issue that the deed is a forgery ; that it was obtained by fraud ; or was executed while he was insane, or so intoxicated as not to know what he was about ; or that it was made by a feme covert ; or to her, but her husband disagreed to it ; or that it was delivered to a stranger for the use of the plaintiff, who refused it ; or that it was never delivered at all. Or he may show that, since its execution, it has become void by beina' materiallv altered or cancelled bv tearino- off the seal. But matters which do not impeach the execution of the deed, but go to show it voidable bv common law, or bv statute, such as usury, infancy, duress, gaming, or that it was given for ease and favor, or the like must be specially pleaded. 76 Va. 230. And here it may be observed, that, under a general plea of It on est factum^ the burden of proving the deed lies upon the plaintiff; but, that under any special plea of matter in avoidance of the deed, the burden of proving the plea lies upon the defendant. Greenl. Ev., part IV., sec. 310; see 4 Minor 769. An obligation could be dissolved at common law only by cancelling, obliterating or surrendering it, or by some equiva- 1( nt act, or by a special performance of the condition, or by a release, and the statutes have given no additional plea but that of j>ayment, to be proved by parol evidence, and the special plea in bar in the nature of a plea of set-off, V. C. 3299. 1 Rob. (old) Pr. 20S. By the common law, deeds of conveyance, or other deeds, made contrary to the provisions of a general statute, or for an unlawful consideration, or to carry into effect a contract Legal Aphorisms. IGl unlawful ill itself, or in consequence of any prohibitory statute, are void ah inllio, and may be avoided by plea ; or, on the general issue of non est facium, the illegality may be given in evidence to show that the writing executed by the defendant is not a deed by any h^gal construction or effect. 10 Mass. 274. Non est factum can be pleaded by a party or his repre- sentative, but not by a stranger. Stephens PI. 198 and note o. The uniform conclusion of every plea of non est factum is to the country, and when a plea concludes to the country, the plaintiff can never reply any new matter. He must either accept, by a similitvr, the issue tendered or demur. 6 Eand. 91. IS^ON-SuiT. See Eetraxit. Notice. To Produce Papers in the Hands of the Adverse Party. — When the instrument or writing is in the hands or jx)wer of the adverse party, there are in general, except in cases above mentioned, no means at law of compelling him to produce it ; but the practice in such cases, is, to give him or his attorney a regular notice to produce the original, l^ot on proof of such notice, he is compellable to give evidence against him- self, but to lay a foundation for the introduction of secondary evidence of the contents of the document or writing, by show- ing that the party has done all in his power to produce the original. 1 Greenl. Ev. sec. 5G0. He must, in addition, prove the existence of the original, and that the document or instru- ment is in the possession, or under the control of the party re- quired to produce it. But of this fact very slight evidence will 162 Legal Aphoeisms. raise a snflficieiit presumption, where the instrument exclu- sively belongs to him, or has recently been, or regularly ought to be, in his possession, according to the course of business. And, after notice and refusal to produce a paper, and second- ary evidence given of its contents, the adverse party cannot afterwards produce the document as his owm evidence. When Party to a Contract Entitled to Notice Before Bringing Action. — Where a party stipulates to do a certain thing in a certain specific event which may become known to him, or with which he can make himself acquainted, he is not entitled to any notice, unless he stipulates for it ; but w^hen it is to do a thing which lies wnthin the peculiar knowledge of the opposite party, then notice ought to be given. Lord Abinger, 6 M. & W. 452, 453 ; 6 :Mete. 426. See, also, 3 Rob. Pr. 598, et seq. After failure or refusal to produce, after notice, the party may give secondary or parol proof of the contents of such books or papers, if they be shown or admitted to be in the possession of the opposite party ; and if such secondary evi- dence is imperfect, vague, and uncertain as to dates, sums, boundaries, &c., every intendment and presumption shall be against the party, who might remove all doubt by producing the higher evidence. But they must be shown to be in his possession, and some general evidence of such parts of their contents as are applicable to the case must iirst be given, be- fore any foundation is laid for any inference or intendment on account of their non-production. 18 Johns. R. 331; 4 Burr 2, 484 ; 7 Wend. 34. Legal Aphokisms. 1G3 Nunc Pro Tunc. When oi-dcr nunc pro liinc \y\]] ])v oiitorod aiul its effect. 100 Va. 4r>(\. Form of Order. — To be entered nunc pro tunc as an aet of the last term, and to have the same effect as if it had been then entered before the hearing (100 Va. 839) ; this in allow- ing the filing of a replication. Obeter Dictum. It is obvious that the remarks of the judges as to * * * , if not obiter, were merely incidental, and had no bearing upon the decision of the case. In determining the weight to be attached to such observations, it would be well to bear in mind the remarks of Chief Justice Marshall, in that connec- tion in Marburg v. Madison, 1 Cr. 127 and 17-1: It is a maxim not to be disregarded that general expressions in every 0})inion are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit, when the very point is presented. The rea- son of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it are considered in their relation to the case decided, but their pos- sible bearing on all other cases is seldom completely investi- gated. 100 Va. 477. Officer. Dc Facto and a Mere Usurper. — The distinction between an officer dc jure, one who is de facto such, and a mere 164 Legal Aphorisms. usurper, is well known, and clearly settled; and these dis- tinctions are important to be borne in mind. An officer de jure has the legal title to, and is clothed with all the power and authority of, the office. He has a title against the world to exercise the functions of the office, and to receive the fees and emoluments appertaining to it. He is responsible to the government and injured parties, when he abuses his trusts or transcends his authority. But his acts, within the scope of ihat authority, cannot be questioned by the citizen or any de- partment of the government. Black Tax Titles ; 14 Vt. R. 428. An officer dc facto is one who comes in by the power of an election or appointment, but in consequence of some in- formality or omission, or want of qualification, or by reason of the expiration of his term of service, cannot maintain his position when called upon by the government to show by what title he claims to hold his office. He is one who exercises the duties of an office under claim or color of title, being distin- guished, on the one hand, from a mere usurper, and on the other from an officer de jure. lb. ; 5 E. C. L. R. 278 ; 5 Wend. 234. A mere usurper is one who intrudes himself into an office which is vacant, or ousts the incumbent without any color of title whatever. Black Tay. Titles 93; 7 X. H. 140; 20 Gratt. 42-3. It cannot be assumed that an officer has been guilty of improj)er conduct in the discharge of a duty incident to his office, though such a fact may be shown by proof when put in issue. 101 Va. 57. The presumption of law is, until the contrary is proved, that the officer has performed his duty. 97 Va. 678. Order. See Assignments. Legal Aphorisms. 165 The drawee, thongb he is the drawer's debtor, is not bound to accept his draft against his own will. The creditor has no right to compel his debtor to become debtor to another man. (Onr statute authorizes this only in the case of assignment of assignable securities.) The drawee may, therefore, refuse to accept ; and in that case, lie is not liable to the payee at all. * * And if acceptance of the order be refused, three courses remain for the holder — he may either return it, in which case the parties are in data quo; or he may sue the drawer upon it, the drawee having refused to accept it ; or he may retain it, give notice to the person on whom it is drawn, not to part with the fund, and sue in equity for its recovery. 6 Leigh 534. The same doctrine is held in the First National Bank kc. V. Kimberlands, 16 W. Va. 555, where it is said: When a person having a demand due him assigns part of it to differ- ent persons, whether by separate orders in their favor or otherwise, they are valid, equitable assignments pro ianto, and though, if the orders are not accepted a court of law will in no manner recognize these partial assignments or orders as equitable assignments, yet a court of equity in a suit in chan- cery will recognize and enforce them. See, also, 2 Story's Eq., sec. 104:3, et seq. ; SO Va. 832 ; 4U W. Va. 432, S. C. ; 38 S. E. 53S. Ordinances. City Ordinances as Evidence, and How Verified. — The clerk of a city or town is the proper certifying officer of all notes, ordinances, or by-laws of such city ov town; and copies thereof duly attested hy the clerk are competent evi- dence to go to the jury, without any special v<>riiication of the 166 Legal Aphorisms. genuineness of the signature, such as would be required in proof of ordinary instruments, when notice had been g-iven requiring such proof. Of course, copies so authenticated are prima facie evidence only, which may be controlled by any circumstances tending to show a forgerv. 60 Mass. 249. Paeent and Child. It is a well settled principle of law, governing the relation of parent and child, that a father, if of ability, is bound to maintain his infant children, even though they may have property of their own. Evans v. Pearce, 15 Gratt. 515. And the mother after the death of the father, if of sufficient ability, 16 Mass. 110. Parent's liability for necessaries furnished his minor child. 6 Va. L. Eeg. 585; 47 Atl. 887. Parties. Defence of the action having been brought against the wrong party may be made under the general issue. 27 Gratt. 256. Proceeding by rule against the plaintiff to show cause why they should not make new parties. 13 Gratt. 38 ; 3 Leigh 599. Partnership. ■ A creditor accepting a new firm as his debtor, does not release old firm, unless it clearly appears that the creditor has accepted the substituted credit of a new partnership instead of the liability of the old firm and not merely as a continuing or additional security. 1 Chitty PI. (7 Am. Ed.) 55; 17 Johns. Pt. 340. Legal Aphorisms. 107 When action by one partner against the other for deceit may be maintained. 54 S. E. 351. Instrnments in tirm name under seal. 8 Va. L. Reg. 786. Partnership — Pleading, 4 Va. L. Keg. 545. Are partners liable jointly or jointly and severally in Vir- ginia ? In the absence of a statute to the contrary their lia- bility is merely joint. 18 Johns. R. 459 ; 1 Wend. 524 ; 4 Va, L, Reg. 546, citing 21 Fla. 128; 10 Pick. 281; 24 S, E, (Fla,) 59. See, also, 50 W. Va. 514; 40 S. E, 376. In the case of Sands v. Durham, 98 Va. on page 397, the court say: ''Counsel for appellee contends that the rule is changed by the statute (see 2855, passed in 18'49), whereby partnership debts are now joint and several; and, also, cites Morris v, Morris, 4 Gratt. 293, in support of the further contention, &:c. Is this, then, the opinion of the court or the statement of the opinion of counsel merely ? The wording of the statute does not appear to justify the construction, and Mr, Robinson, one of the revisors of the Code of 1849 (3 Rob. Pr. 108, says that it was suggested for another purpose) and Mr. Mintir says : "The rules of law are not o-enerallv subject to be altered by statutory provisions introduced for a different object." 2 Minor 124. It has been held in the case of Ward v, Motter, 2 Rob. R. 536-552, that the liability was joint, the court saying: In the case of ostensible })artners, if the simple contract, instead of being joint only (as it is at law, though not in equity, Story on Partn., p. 514, sec. 362) were several, t^'c. In 1857 the Court of Apix-als in the case of ^IcArthur v. Chase, 13 Gratt. 701, say: In the case of an ordinary partnership, a creditor is required to sue all the nu^mbers of the tirm in respect to 168 Legal Aphoeisms. any claim against the concern. And the case of Prunty v. Mitchell & Cobbs, 76 Va. 169, is to the same effect; both of which cases must have been decided upon the theory that the liability was joint, and not joint and several, and in neither case is any mention made of section 2855 as having any bear- ing on the question. In the light of these facts, I am per- suaded that the court in the case of Sands v. Durham, was only stating the opinion of counsel, and that whatever may be the law elsewhere, in Virginia partners are only jointly liable for the debts of the concern, and must all be joined in an action for a firm debt. 18 Johns. E. 159 ; 1 Wend. 524. Form of declaration in action against surviving partner. 33 Gratt. 313. Pawns. See Pledges. Payment. When the plaintiff's own book appears to be crossed, it is evidence of payment of an account. 2 P. Wms. 126 ; 1 Mad- dox Chy. 61. May be proved by oral testimony, though a receipt be taken. 1 Greenl. Ev. sec. 90. If a witness speaks positively as to the date and amount of a payment, and the jury believe him, such evidence cannot be considered inferior to the re- ceipt. In one aspect it is superior. For the receipt, when produced, is but prima facie acknowledgment that the money has been paid; and the circumstances under which it was obtained may be proved by a witness who was present at the time of giving it. It may be proved that the receipt was fraudulently obtained; and then the receipt will amount to nothing, and the cause will rest on the parol evidence. Skaife V. Jackson, 3 E. & 0. 421 ; 10 E. C. L. 137 ; 1 Rob. (old) Pr. Legal Apjioeisms. 109 305. When a receipt is giveu for a iDaymcnt, the general opinion is that the payment may be proved as well by parol evidence of the fact as by the production and proof of the receipt, though the case of Hamlin's Adm'r v. Atkinson, 6 Eaud. 574, has thrown some doubt on that question in this State. 7 Gratt. 393. The receipt of T., although in its terms an absolute acknowledgment of the papnent of four hundred dollars in the hands of the appellant, as trustee, is merely prima facie evidence of the fact, and not conclusive; and therefore, the fact which it recites may be not only explained or varied, but contradicted by oral testimony. This is well settled law. 1 Greenl. on Ev. sec. 305; The Delaware, 14 Wall GOl ; 2d Gratt. 759. Bv Eemittance Through Mail, see Eemittance. By check stating on its face that it is in full of balance of account. 41 X. E. 6 ; 25 S. E. 70S ; 56 Am. St. E.656 ; 29 S. E. 943;36S. E. 36. With check of third party which turns out to be worthless. It operates as a conditional payment only of the original debt. In such a case, if the check or draft is presented for payment within a reasonable time, and the bank or banker fails, the loss does not fall upon the holder, unless he has agreed to bear the risks, but he may return it to the party from whom he has received it, and maintain suit upon his original cause of action. A fortiori, this is true, where the draft was worthless when received. Weddingen v. Boston, &c. Co. 100 Mass. 122; Fleig V. Sleet, 1 N. E. 24. Upon familiar principles, if a note is taken as a condi- tional payment, or in renewal, and is nut duly paid or dis- charged, the original debt revives; and this principle aj)plies 170 Legal Aphorisms. to every renewal, which is but a continuation of the same debt. ISTor is it material whether the note or bill be given for a precedent or co-temporary debt ; in neither instance will it operate as an extinguishment or payment, unless it be so accepted by the creditor. If not paid at maturity, the credi- tor may sue upon it, or upon the original cause of action. 21 Gratt. 567-8 ; see,' also, 75 Va. 726. Proof of the insolvency of a debtor is no more competent to show non-payment, than proof of his solvency is competent to show the payment of his debts. These two kinds of proof stand on the same footing. The latter kind has been held to be incompetent. Hilton v, Scarborough, 5 Gray 422 ; First Nat. Bank of Zenia v. Stewart, 114 U. S. 231; 29 Law. Ed. 104; 18 A. & E. Ency. of Law (1 Ed.) 204 note. But it seems that the common law presumption of payment may be repelled by evidence of the debtor'^ inability to pay during the i>eriod. 78 Va. 136; 2 Minor 838; 1 Rob. Pr. 402. Payment on Account as an Admission. — In Rowe v. Hardy, 97 Va. on page 681, the court say: The debtor died in May, 18*85, and only a few months before his death made two payments on account of the judgment, to-wit: The sum of $265 on January 9, 1885, and $100 on March 7, 1885, which was an admission on his part that up to that time the judg- ment had not been satisfied. Updike's Adm'r v. Lane, 78 Va. 132 ; and Coles' Adm'r v. Ballard, 78 Va. 139. The defendant paid money into court, under a rule, and did not distinguish as to which of the counts the payment was applicable. And this, by the authorities, is an admission of the contract as set forth in the declaration. It is, however, Li:(iAi. Aphorisms. 171 within the discrotiun of the court to aj)])l,v this rule or not, as equity shall require. .5 Pick. 2()(). Peksokal IvKi'KESENTATivK. See Executors or Adminis- trators. Pleading. Pk^ading- is the formal mode of alleging that on the record which would be the support or defence of the party on evi- dence. 3 T. E. 159 ; 3 Eob. Pr. 484. The use of pleading is, on the one hand, to set forth and state, with precision, the fact or facts which in law^ show the justness of the plaintiff's demand ; and, on the other hand, the discharge or defence made bv the defendant in bar of the plaintiff's action ; and, on the trial the evidence ought to ap2)ly directly to the matter in issue between the parties, to prevent surprise on either side. Fleming, Jr., 2 Munf. 347 ; 3 Eob. Pr. 510. In i)leading it is enough to state the facts from which a right or duty arises. 4 Eob. Pr. C19. Xo allegations are material which will not prevent a plaintiff from recovering if proved to be untrue; or, which, when denied, he is obliged to prove to entitle himself to a ver- dict. 3 Ducr. 1()5. The pleader is not at liberty to leave a niatter in doubt, and then ask the court to presume in his favor ; especially where the probaility is against the existence of the fact which he wishes to have presumed. G Hill 475 ; 3 Eob. Pr. 502. It is a maxim in pleading, that everything shall be taken most strongly against the party pleading (98 Va. 25), or, rather, that if the meaning of the words be equivocal, and two meanings present themselves, that construction shall be 172 Legal Aphorisms. adopted which is the most unfavorable to the party pleading ; because it is to be presumed that every person states his case as favorably to himself as possible. But in applying this maxim, the other rules must be kept in view, and particularly those relating to the degree of certainty or precision required in pleading. The maxim must be received with this qualifi- cation, that the language of the pleading is to have a reason- able intendment and construction; and where an expression is capable of diiferent meanings, that shall be taken which will support the declaration, &c., and not the other, which would defeat it. ('103 Va. 714.) 1 Chitty PI. 7 Am. Ed. 272. The declaration should not present for the determination of the jury what is matter of law. Lope v. Becker, 1 Denio. 570; or partly matter of law and partly matter of fact. For example, it should not state that a party was duly appointed administrator. Beach v. Kinof, 17 Wend. 198 ; or was dulv ap|)ointed receiver: but it should state what in particular was done ; so that if the fact be admitted, the court can deter- mine whether he was duly appointed ; or if issue be joined on the allegation, the jury can answer as to its truth. Gillett v. Fairchild, 4 Denio. 83; 3 Rob. Pr. 530. (See 100 Va. 43C.) So the words "duly," "lawfully," "sufiicient," &c., without showing the matter of fact with convenient certainty, are sel- dom of avail in pleading. 1 Chitty PI. (7 Am. Ed.) 271. And therefore it seems that a general averment that "the de- fendant did not perform his agreement" is insufficient ; be- cause "did not perform his agreement" might involve a ques- tion of law, and also because the object of pleading is to ap- jjrize the defendant of the cause of coni])laiiit, so that be may prepare his plea and defence and evidence in answer. Idem. 3C5. Legal Apiiokisms. 173 Tliero are faults in jjlcadiuii", bad rm doiiiurror, which may hv waived by the adverse - party pleading over. Where the plaintiff in his replication makes a title and it thereby appears that he has a bad title, no rejoinder can by any impli- cation make it good. But when it appears that he has a title, but is defectively pleaded, the rejoinder admitting this mat- ter, and' tendering an issue on other matters, will make the rei>lication good. 5 Mass. 132. Other instances: 10 Mass. 226; 14 Mass. 157. In an action to recover a debt, the failure of the defendant to jjay at or before maturity is an essential part of the plain- tiif's cause of action. He must allege and prove the defend- ant's default in this particular. 5 Va. L. Reg. 410; 12 W. Va. 510. Pleadings are alwavs evidence of the law. Buller, J. 8 T. R. 161. And. books of entries are the best authorities in tke absence of decided cases. Ashhurst, J., 2 T. R. 10. 82 Mass. 238. Px,EAS IX Bar. The defendant must never plead in bar, matter which goes only in abatement. This is an error of substance, and fatal u}wn a general demurrer. And though the plaintiff should reply instead of demurring to the plea, yet if the pleadings terminate in a general demurrer, and it appears that matter going only in abatement is pleaded in bar, judg- ment will be given against the defendant for that cause only. The reason is, that every plea in bar necessarily admits that the suit is well brought, and this being admitted, there is no matter of defence contained in the plea. 1 Leigh 04 ; 1 Rob. (old) Pr. 164. 174 Legal Aphokisms. Every plea in bar to be a good defence to the action must aver with sufficient certainty such facts as amount to a le^al bar. The facts must be set out with such particularity in the plea as to inform the plaintiff of the nature of the defence intended to be relied on, and thus to enable him to reply to it, to make up the issue thereon, and prepare for trial. 27 Gratt. 752. When the plea of the defendant is so defective as not to be a bar to the jilaintiff's demand, the plaintiff' should demur to it. If instead of demurring- to the plea, he shall take issue on it in fact, he cannot at the trial object to any evidence which supports the plea on which he has thus joined issue. But after the issue is found for the defendant, it is compe- tent to the plaintiff to move for a repleader. 2 Rand. 40 ; 1 Rob. (old) Pr. 222. Though judgment be given for the de- fendant in the court below without any motion for a re- pleader, yet if an appellate court shall be of opinion that the verdict found for the defendant was upon an issue joined on a plea which afforded no bar to the plaintiff's action, and which issue was therefore immaterial, the appellate court will set aside the plea and all subsequent proceedings. 1 Rob. (old) Pr. 222. Our courts are liberal in allowino- defendants to add to their pleas, when justice requires it, and the plaintiff is not thereby subjected to delay ; and will do so even though he be subjected to delay, if good cause be shown for not having made the a/ldition earlier. 1 Rob. (old) Pr. 231; IG Gratt. 440. Plea of Payment. It is an old and Avell settled rule, that although a plea of payment before tlie day is not good; yet a plea of payment Legal Aimiorisms. 175 at th(^ day is supported by proof of payment before the day. Holmes V. Brocket, Cro. Jac. 434; Sturdy v. Armand, :> T. E. 601; 19 Pick. 1-2:]. In Sturdy v. Armand, Buller, J., says: There is indeed an old case which said that payment before the day would not discharge the bond. But in the first place, that case has been frequently overruled ; and if it were still law, it would not govern this case; because it has been held that the obligor may plead it as payment at the day, and this would be evidence of such payment. The plea of payment is a plea in confession and avoid- ance. It confesses the original cause of action, as charged in the declaration, and relies on affirmative matter in avoidance. It concludes with a verification and prayer of judgment. The plaintiff replies generally, putting himself on the country, and the defendant adds the similiter. It puts the onus pro- handi upon the defendant and gives him the right to open and conclude. 31 Gratt. 317. But it had been said previously in Henderson v. Southall, 4 Call 371, where the question was, whether the plea of payment should conclude to the country : The court is unanimously of opinion that the plea of pay- ment is res|x»nsive to the negation of non-payment in the de- claration ; and that the act of assembly, bv allowino- a general plea of payment in all cases, with a right to prove all anterior payments, in fact makes it a general issue in this country; and in Douglass v. Cent. L. Co. Vl W. Va. 502, it was held that the plea of payment, whether it be in assumpsit or debt, should conclude to the country. Miehie's note to Henderson V. Southall, supra. Plea of N on- Assumpsit, see that Title. Plea of Nil Debet, see that Title. Plea of Non Est Factum, see that Title. 176 Legal Aphorisms. Plea of ISTul Tiel Record. A party may plead mil tiel record, and, if upon inspection by the court, the record is not such as is described in the pleadings, he will have judgment ; or he may crave oyer of the record, which makes the record a part of the pleadings in that case ; and when it is spread upon the record by oyer, if the party admits that the record of which oyer is given him is the true record, and relies that it does not support the pleadings or scire facias, it seems to me that he should not deny that there is such a record, by plea ; but that he ought to demur, upon the ground that it varies from the pleadings or scire facias. If he denies the verity of the record, of which oyer is given, he should plead 7iul tiel record after oyer. 4 Rand. 330. Special Plea. I do not understand that anything can be pleaded spe- cially which amounts to the general issue, whether it be mat- ter of law or not. Infancy, coverture, usury and gaming are matters of law which may be pleaded specially or given in evidence under the general issue, at the option of the defend- ant. But they do not amount to the general issue ; because they do not traverse any matter which the plaintiff must prove to sustain his action. They give color of action to the plaintiff, as every good special plea must, although they show that in law he never had a good cause of action. In this respect only they differ from matters in confession and avoid- ance; which admit that the plaintiff once had a good cause of action, but show that it has since been discharged. NW. matters of defence which give color of action to the plaintiff, Legal Aphorisms. 177 may be pleaded especially; and all matters of defence which do not give snch color of action, anionnt to the general issue, ;iii(l nnist be liiven in evidence nnder it. .Moiicurc, J., 14 Gratt. 454. Accord and satisfaction must he pleaded spe- cially in debt on simple contract, and may be given in evi- dence under the general issue in assumpsit, but in debt on simple contract, covenant and trespass it must be specially pleaded. 2 Green. Ev., sec. 29. Custom (ir usage of trade, where it will excuse the non-performance of a duty pre- scribed by law (5 Gratt, 24), and a warranty (6 Gratt. 397) must be pleaded specially. A plea amounts to the general issue when it traverses mat- ter which the plaintiff avers, or must prove, to sustain his action ; whether such traverse be direct or argumentative. 14 Gratt. 453 ; or when it denies by anticipation some essential allegation of the declaration, which the plaintiff must him- self prove to make (»ut a prima facie case. 4 Va. L. Reg. 771. The usual test of an objection that the plea amounts to the general issue is, whether it takes away all color for maintain- ing an action, by fixing a negative upon the plaintiff's right in the first instance. 1 Hill 267. Bcplicaiion to Special Plea. — AVhere the plea of the de- fendant is not the general issue, but a special plea concluding with a verification, there can be no joinder of issue without a replication. In cases of this kind, a statement upon the record that issue was joined on the plea is not sufficient. G Rand. 20 ; 2 11. & M. 268 ; 1 Rob. (old) Pr. 218; 99 Va. 276. As to whether a defence, which amounts to the general issue, must be so nuide. 4 Va. L. Res;. 769. 178 Legal Aphoeisms. Plea of Matter Arising After Action Brought. The rights of parties at the trial are the same as thej were at the commencement of the suit ; or, if they are changed, a plea puis darrein continuance ought to place the new facts on the record. It is important to uphold the prin- ciple, that a plaintiff is entitled to recover by way of damages all that at the commencement of the suit he has lost through the wrong-ful act for which the defendant is sued, Ld. Den- man, C. J. 6 Eob. Pr. 6 GO. Generally speaking, the rights of parties at the trial are the same as they were at the com- mencement of the suit ; if they are changed, there should be a plea of the new matter. C Monroe 115; A. & E. X. S., 178. The general rule is that matter of defence (/. e., a full defence, 5 Hill 391), arising after action brought cannot be admitted in evidence under the general issue. 3 T. R. 10 ; Id. 18&; 11 Johns. 121; 1 B. & C. 390; 2 liar. & Gill 191; or under a plea of matter existing before action brought in bar of the action generally. 1 East. 507; 12 Gill k J. 361. Even in respect to payment, there are cases holding, that if made after action brought, it should be introduced by plea. 1 Holt, X. P. ; 12 Gill & J. 361 ; 19 Conn. 532 ; 5 Rob. Pr. 372. But when the action was well brought and the defendant has some matter in discharge arising afterwards, he should plead it specially in bar of the further maintenance of the action. It cannot be given in evidence under the general issue. I speak of cases where the matter set up is a full de- fence. A partial defence can never be pleaded, because every plea in bar must contain a full answer to the declaration or count to which it is pleaded. Most partial defences may Legal Aitiorisms. 179 thei-eforp be given in evidence under the general issue. 5 Tlill 39^4. The ple^ puis davrcin continuance is a waiver of the former plea. It is a plc^a in bar of the further prosecu- tion of the suit, going to the foundation of the action. But even in a plea in abatement pleaded imis dan-ein continuance, the judgnu^it, either upon demurrer or verdict, is final, quod recvperef. and not respondeat ouster. 1 Ld. Ra^^n. 693; 1 Salk. ITS; 10 Wend. GTS. This rule, however, does not apply where the matter of the plea affects the plaintiff's remedy only, and not his right of action. A discharge under the act abolishing imprisonment for debt in certain cases, is not a waiver of a plea in bar previously pleaded. It seeks merely to modify the remedy, not to defeat the action. 2 Wend. 300; 14 Wend. 16^. By reason of pleas of this kind having a tendency to delay, great strictness is required in framing them. In this respect they are viewed much like pleas in abatement, and for the same reason, they must, like those pleas be verified by affidavit. 1 Chitty PI. (12 Am. Ed.) 660; 1 Tidd's Pr. (1 Am. Ed.) TT6-TT8; 11 X. E. (Ills.) 402. Replication to Special Plea. — Where the plea of the de- fendant is not the general issue, but a special plea, concluding with a verification, there can be no joinder of issue without a replication. In cases of this kind, a statement upon the record that issue was joined on the plea is not sufficient. 6 Rand. 20; 2 H. & M. 268; 1 Rob. (old) Pr. 218. But see 99 Va. 2T6. Some Grounds of Exception to Plea or Replication. — 1. That the action, as set forth in the replications, does not 180 Legal Aphoeisms. lie against executors. 2. That the replications are a departure from the declaration. 3. That they are double, inconsistent and uncertain ; and 4. That the excuse set forth, in avoidance of the plea, is insufficient. Pledges. Eight and remedies of pawnee or pledgee to make pawn or pledge available. 22 Gratt. 201 ; 27 Gratt. 753. What, in the case of commercial paper. 22 Gratt 262. As to duty of pawnee to sell personal property pawned or pledged. 27 Gratt. 753. A factor has the possession of the property of his princi- pal, with full power to sell for cash or on credit, and on a credit sale^ to transfer or collect the debts. All such acts may be for the benefit of the principal ; and the subsequent misuse of the funds that may thus come to his hands in no- wise invalidates the sale, transfer or collection. But he can- not pledge the goods, or the note taken on the sale of them, for his own debt, so as to give the pledgee a title paramount to that of his principal. Comyn. on Cont. 538, 9. And this, though the pledgee did not know that the party with whom he dealt was not in reality what he ostensibly was, the owner of the goods. 1 Man. & Sel. 140 ; 1 Rob. E. 146. Distinction between pledge and mortgage of personal chattels. There is a material distinction between a mortgage, properly so called, of personal chattels and a pledge. The mortgage is a conveyance of the title upon condition; the legal property passes to the mortgagee, and at law he has the absolute estate, if there be no redemption by a given time. A pledge or pawn is a deposit of goods redeemable on certain terms; the pawnee has only a special property, and though Legal Aimiokisms. 181 a day of payment be fixed and there be a failure to pay by that day, the general ownership still remains with the pawner. The law on the subject of pledges is investigated with "i-eat learnina,' and ability bv Kent, J. 2 Caines Cases in Error 200 ; 2 Rob. (old) Pr. 56-7. A pawnee has only a lien on goods deposited as a pledge, which cannot be maintained but upon the basis of possession. If therefore he relinquishes the possession, although the debt remains unpaid, the lien is ipso facto extinguished. But there is an obvious and material distinction, in this respect, between a pledge and a mortgage. By the latter the right of property passes to the mortgagee, and he may dispose of it as he sees fit, subject only to the con- dition or right of redemption. Possession is not essential to his title. 2 Pick. 610. Powers. A party dealing with an agent acting under a written authority, must take notice of the extent and limits of that authority. He is to be regarded as dealing with the power before him; and he must, at his peril, observe that the act done bv the ao-ent is leaallv identical with the act authorized by the power. 11 Gratt. 286; 1 Rob. R. 143; 30 W. Va. 152 S. C; 19 S. E. 541. \Mien Equiiij Will Aid a Defective Execution of a Power. It is certainly true that in some cases in favor of certain classes, equity will aid a defective execution tif a power. IT will do so in l)ehalf of buiui jidc purchasers for value and some other parties, where the instrument by which the execu- tion is attempted is informal or inappropriate, t»r being formal or appropriate, the execution is iuformal, as where a certain number of witnesses is required and a less mimber 182 Legal Aphoeisms. is present, or wliere the iiistrumeiit is required to be signed and sealed, and it is signed only, and so on. Toilet v. Toilet, 1 Lead. Cas. Eq. (Ed. 1876), top page 365, 372; 30 Gratt. 574. See, also, 33 Gratt. 78 ; 79 Ya. 45. Peesumptions. Presumptions are said by a learned writer to be of two kinds, legal and artificial, and natural. The former derive from the law a technical and artificial operation and effect beyond their mere natural tendency to produce belief. The latter act merely by virtue of their own natural efficacy. 3 Stark. Ev. 1235. The writer then illustrates by the case of a bond which has been suffered to stand for twenty years or upwards without payment of interest or other acknowledg- ment of its existence. In such a case, satisfaction of the bond is a legal presumption. But if a shorter period, even a single day less than twenty years has elapsed, the presumption of satisfaction from mere lapse of time does not arise, though in the latter case it may be inferred, where other circumstances render it probable ; but in this case the mere lapse of time possesses no artificial or arbitrary oj)eration, but is left to its mere natural tendency to convince the minds of the jury that the debt has been paid. 12 Gratt. 588. An inference cannot be drawn from a presumption, but must be founded upon some fact legally established. Bailey on Per. Inj., sec. 1675; 102 Va. 139. Presumptions that the law will raise are collected in Cowen & Hill's notes to Phil. Ev., Vol. 2, note 195 ; and 1 Greenl. Ev., sec. 28, et seq. The dejDositing a letter in the post-ofiice, addressed to a Legal Aphorisms. 183 iiic'ivhant at his place of business, is prima facie evidence that he received it in the ordinary course of the mails ; and where there is no other evidence the jury should he so instructed. Citiuii- with other authorities 1 Greenl. Ev., sec. 40. The l)resumption so arising is not a conclusive presumption of law, but a mere inference oi fact, founded on the probability that the officers of the government will do their duty, and the usual course of business ; and when it is opposed by evidence that the letter was never received, must be weighed, with all the other circumstances of the case, by the jury, in determin- ing the question whether the letter was actually received or not ; and the burden of proving its receipt remains through- out upon the party who asserts it. 105 Mass. 392. It cannot be assumed that an officer has been guilty of im- proper conduct in the discharge of a duty incident to his office, though such a fact may be shown by proof when put in issue. 101 Va. 57. When the Question of Presumption or Prohahility Will Be Referred to the Jury. — The court refers to its own knowl- edge of events so far as to consider whether it can say that there is no probability or presumption of fact that when facts A and B exist, of which there is direct evidence, fact C also exists by way of cause, effect, or concomitant. If it cannot, then it leaves it to the jury to say whether, according to their experience, there is such a probability or presumption. 145 Mass. 387-8. It is contrary to the rules of evidence, to base a presump- tion upon a presumption. 17 Gratt. 542. Yet there are cases ill which the court may infer the intent of a party from the fads found in a special verdict, although the intent be not 184 Legal Aphokisms. proved. Where such intent is inferred, it is an inference of law from the facts, and not an inference of one fact from another. 1 Rob. (old) Pr. 373. Instances of attempted bas- ing one presumption upon another: That no communication was made^ and that had it been made correctness of account would by it have been admitted (17 Gratt. 542) ; that a ques- tion was answered and^ then, that the answer was of such a nature as to be inadmissible (10 Gratt. 8), and, that a party saw a prospectus, and, then, that he relied upon it. 58 Penn. St. R. 126. Principal and Agent. 8ee Agency. When money of another is placed in his hands, there are three modes which a person may adopt — (1) To keep it in his own house ; if he does so, and does not mix it up with his own money for his own use, he is liable only as bailee ; (2) to pay it into his banker's, on his general account, in which case he is liable, because there is no ear mark, or anything to indi- cate that it is deposited as the client's money ; on the contrary, such a deposit imports a deposit of his own money on his own account; and (3) which the Chief Justice says is the correct mode, to open a new account, in his own name, for this par- ticular purpose. The right way is to deposit it with a banker, in the name of the fiduciary, for the credit of his client. 21 Gratt. 255. Principal who has been wronged by the misconduct of his agent, may pursue not only him, but those who have actively co-operated in his breach of duty and accepted their share of the profits of the transaction. 150 Mass. 466; 98 N. Y. 167. Rule of liability of principal for unauthorized torts of agent. 75 Va. 178. Legal Aimiokisms. T^T) Till' doctrine that the possession of an agent is the posses- sion of the principal, has no application to the case of a wrong doer. 3 Rob. Pr. 73. Agent's use of principal's proj^erty to pay his own debts. 14 L. R. A. 234. Liability of agent for conversion, trespass or other posi- tive act of wrong-doing against third persons under em- ployer's orders. 50 L. R. A. 644. When notice to agent is notice to principal. 1 Va. L. Reg. 153 ; 33 Gratt. 487. Knowledge of or notice to agent is knowledge of or notice to principal when the agent acts for himself, in the perpetua- tion of a fraud in connection with the agency. 150 Mass. 200, S. C. 22 K E. 1)17; but there is an exception to this rule when the agent is engaged in committing an independent fraudulent act on his own account, and the facts to be im- puted relate to this fraudulent act. Idem. ; 65 Fed. R. 017, S. C. 12 C. C. A. 643. The declarations of an agent are competent as evidence to charge the principal, only when they are a part of the res gestae. By this we understand that such declarations are evidence onlv where thev relate to the identical contract, that is the matter in controversy. A declaration to another party in reference to another contract, and made at a prior time, does not fall within the rule admitting such (>vidence. The party is not excused in such case from proving the fact in the ordinary way by the testimony of the agent, if it be one perti- nent to the issue. As cases strongly bearing upon this point, see Beetham v. Benson, Gow's R. 45 ; 13 Barb. 246 ; 65 ]\rass. 206. 186 Legal Aphokisms. Ill an action against the principal on a note signed bv an agent instead of saying the said made and sigiied a writing, say said , by E. F., his agent, made a writing, signed by the said agent, &c. 4 Eob. Pr. 200. Instruction on Scope of Agent's Powers. — The court in- structs the jury that every delegation of authority, or creation of an agency, unless the extent of such authority or agency be expressly limited, carries with it the power to do all those things which are necessary, proper and usual to be done in order to effectuate the purpose of the agency, and embraces all the appropriate means necessary to accomplish the desired ends. 98 Va. 242. Principal and Surety — See Surety. The remedies of the surety against his principal are : 1. To pay the debt, and recover same back from the prin- cipal, which he may do by action, or, in most cases after judg- ment or execution against him, by the summary statutory pro- ceeding by motion. 2. If he is apprehensive of suffering by reason of the for- bearance of the creditor, he may file his bill in chancery against the principal to compel him to make payment himself to the creditor. 3. Though, independently of statutory provision, the surety is not absolved from his obligation, by the refusal of the creditor to sue the principal, after having been requested i)y the surety to do so, yet the latter may, l)y his bill in equity, invoke the authority of that forum to compel the creditor to bring his action against the princi])al, n\)(m being indemni- fied against the consequences of risk, delay and expense; it Legal Aphorisms. 187 being reasonable that sneh an act of benevolence should be extended to the surety, when it can be done without prejudice to the creditor. This exercise of equitable jurisdiction, though in form against the creditor, is substantially a remedy for the surety against his principal; the proceeding at law, though conducted by the creditor, being in truth for the benefit of the surety. 4. A statutory remedy is provided in certain cases, for the procurement by the surety of an action against his principal, authority being given to sureties bound by any contract, if a right of action has accrued thereon to require the creditor, by notice in writing, forthwith to institute suit thereon, and pro- ceed with due diligence to recover the money, on pain of in- curring, in case of his failure to do so, the exoneration of the surety. V. C. §§ 2890, 2891 ; G Gratt. 524. When a surety gets rid of and discharges an obligation at a less sum than its full amount, he cannot, as against his principal, make himself a creditor for the whole amount ; but can only claim as against his principal what he has actually paid in discharge. 22 Gratt. 752. See, also, 2 Eob. Pr. 440 ; 12 Gratt. 642; 7 X. E. 578; 29 Gratt. 144. The creditor, as a general rule, is under no obligations to look to the principal debtor or to his property; he is not bound to exhaust his remedies against the latter before resort- ing to the surety. But the rule is not universal. Hays v. Ward, 4 Johns. Chy. K. 127; 2(; Gratt. G17. Creditor may enforce payment from either principal or surety (25 Gratt. 230; Idem. 563) ; but a court of e(iuity will not, ordinarily, subject the surety's estate to the payment oi the principal's debt, where both are being administered by the court, until 188 Legal Aphokisms. the principal's estate has been exhausted. 100 Va. 747 ; and in 28 Gratt. 825, the court say: The principal debtor's lands, in a suit in which all the parties are alive and before the court, should be first subjected to the exoneration of the lands of the sureties, as far as that can be done without too great delay, and without prejudice to the rights of the creditor, Peocess. See Judgment. Infant. As remarked by Judge Bell in the case of the State v. Eichmond, 6 Foster 237: There is in our books great loose- ness and no little confusion in the use of the terms void and voidable, growing, perhaps, in some degree, out of the imper- fection of our language. There are at least four kinds of de- fects which are included under these expressions ; while we have but two terms to express them all. 1. Proceeding's may be wholly void, without force or effect as to all persons and for all purposes, and incapable of being, or being made, otherwise. This is the broadest sense of the word. 2. Things may be void as to some persons and for some purposes, and, as to them, incapable of being otherwise, which are yet valid as to other persons, and effectual for other purposes — as a deed executed by an idiot and by others capa- ble of contracting, may be void as to the idiot, yet binding as to others ; an instrument in the form of a deed, but with- out a seal, may be void as a conveyance, and yet binding for some other purposes. 8. Things may be void as to all persons and for all pur- poses, or as to some persons and for some purposes, though not so as to others, until they are confirmed ; l)ut though said to be void, they are not so in the broadest sense of that term. Legal Aphorisms. 189 or c'voii ill is spcoiidary sense, above given, because they have a capacity of being conlirniecl, and after snch confirmation they are binding. For this kind of defect our language affords no distinctive term. They are strictly neither void — that is, mere nullities — nor voidable, because they do not require to be avoided, but until eonfirnied they arc without validity. They are usually, spoken of as void, and as usage is the only law of language, they are so called correctly. It is therefore always to be considered an open question, to be decided by the connection and otherwise^ whether the term void is used in a given instance in the one or the other of these in some re- spects dissimilar senses. 4. Contracts and proceedings are properly called voidable, which are valid and effectual until they are avoided by some act. Prima facie, they arc valid, but they are subject to de- fects, of which some person has the right to take advantage, who may by j)roper proceedings for that purpose entirely defeat and destroy them. Voidable contracts are in general, perhaps always, like the last class referred to and called void, capable of confirmation by the party, who has a right to avoid them. Matters which are properly voidable are very com- monly spoken of as void. Smith v. Saxon, 6 Pick. 487. Tech- nically and legally speaking, they are improperly so called. But the word void is so often used by good writers and even by legal writers, in the sense of invalid, ineffectual or not binding, that it can hardly be said that this is not a correct and legitimate use of the term. Our books are full of ex- amples of the loose and inaccurate use of these words, and many difticult questions have grown out of these circum- stances. They are so common that we think no strong infer- 190 Legal Aphokis MS. ence is to be justly drawn from the unqualified use of these words, as to the particular kind or degree of invalidity meant, when the attention of the court is not clearlv directed to that point. 15 W. Va. 681. When a party is charged in a bill or named in a declara- tion in the capacity in which he is liable as executor, &c., it is not ground of demurrer, that the subpoena was issued to him generally, not stating the capacity in which he is sued. Wal- ton V. Herbert, 3 Green. Ch. 73 ; or, as stated, 1 Chitty Pr. and PI. (7 Am. Ed.) 284-: Where the defendant was de- scribed in process generally, he might be declared against as administrator, the object of the writ being merely to bring him into court. 6 Moore 66 S. C. ; 3 B. & B. 4. But see Writ. When process issues in wrong given name and is served on the right person, it is simply a misnomer. 7 Gray. 378. Service on wrong person. 5 Va. L. Reg. 570 ; 7 Id. 648 ; 80 K W. 700. Judgments and decrees on constructive service of process. 2 Va. L. Reg. 48. Prohibition. 2 Va. L. Reg. 253; 2 Va. Cases. 42. Promises. As the law will not imply a promise, where there was an express promise, so the law will not imply a promise of any person against his own express declaration, because such de- claration is repugnant to any imputation of a promise. This does not apply, however, to cases in which the law creates a duty to perform that for which it implies a promise to pay, notwithstanding the party owing the duty absolutely refuses to enter into an obligation to perform it. The law promises in his stead and in his behalf. As if a man absolutely refuses Legal Aphorisms. 101 to furnish food to bis wife or minor children, there may be circumstances under which the hiw will compel him to per- form his f)l)lig'ations, and will of its own force imply a promise against his protestation. But such promise will never be implied against his j^rotest, except in cases where the law itself imposes a duty ; and this duty must be a legal duty ; nor will a promise will not necessarily be implied from the mere fact of having received a benefit. 123 Mass. 28 ; 7 Mass. 107 ; 130 Mass. 597. ' When the consideration, although past and executed, will support an action by reason of there having been an antece- dent request, express or implied, it is a general and very im- portant rule, that the consideration "will support no other promise than such as would be implied by law." Thus, where an account has been stated between the parties, and a balance ascertained to be due from one of them to the other, the law imjilies a j)romise by the debtor to pay on request, so that any expost facto promise by him differing in its nature therefrom, ex. gr., to pay on a particular day named, would be nudum 'pactum, unless made upon a new consideration. If this were not so, there would, in truth, ''be two co-existing promises on one consideration," a state of things manifestly incongruous and nonsensical. Broom, C. L. 327; 2 Eob. Pr. 310; 4 Rob. Pr. 237. Action on promise made to one for the benefit of another. V. C. 2415 ; 2 Rob. Pr. 23 ; 21 Gratt. 90 ; 95 Va. 120 ; 2 Rob. Pr. 307; 1 Johns. 139; 10 Wend. 156; 17 Mass. 404. Promissory Xote. The words "value received" in a bill of exchange or promissory note, express only what the law must imply from 192 Legal Aphorisms. the nature of the instrument and the relation of the parties apparent upon it ; and that whether these words be or be not inserted in it, an action of debt would lie on a bill for the drawer against the acceptor ; or lie on a note for the payee against the maker. 3 Kob. Pr. 377. The acknowledgment of "value received" is evidence of consideration in a note, as well as in a deed. 3 Johns. 484; 7 Idem. 323. And where plaintiif states that the note was given for value received and the note so says on its face, the production in evidence of the note puts the defendant upon his defence. 7 Johns. 324. And notwithstanding the usual expression of consideration such as "for value received," (Src, the maker may show, as against the payee or other person standing in the same situation, that the note was given without consideration ; or that the consid- eration has failed ; or that a fraud in respect to it was prac- ticed upon him by the other party and in a proper case that the consideration was illegal. Cowen & Hill's note 495 to Phil. Ev., citing innumerable authorities. As a consideration is expressly admitted in the note itself, the defendant, to avoid payment, must prove that, contrary to his admission, no value or consideration was in fact received. 6 Pick. 432. But where a deed states that "for value received of the gran- tee, he doth grant, &c., the grantor will not be permitted to say that there was no value received. "Value received" is equivalent to saying, money was received or a chattel was re- ceived. It is an express averment, ex vi termini, of a quid pro quo. 3 Johns. 436. But if in an action on a promissory note, not negotiable, but expressed to be for value received (which is prima facie evidence of valuable consideration) the plaintifp unnecessarily set forth the particulars in which the Legal Apjiokisms. 103 value consisted, he is bound, upon the general issue, to prove them precisely as laid. 7 Johns. 321; 4 Minor 1264, And when a note specifies the particular value received this is evidence of the fact, against the maker and his representa- tives. 22 Graft. 53. If after a note has become a complete contract, there be written on the back of it a guaranty of its payment, a distinct consideration should be proved for the gniaranty. 2 Rob. Pr. 285. The defendant's name was not put upon the note, until it had been negotiated to a creditor ; and the defendant can ■in no sense be regarded as an original party. 3 Mete. 275. He cannot be charged as upon a subsequent and separate con- tract of guaranty, for want of a consideration, 59 Mass, 83. A promissory note in form "I promise to pay," &c., and subscribed by two persons is a joint and several note. 7 Mass. 57, Implied authority to fill blanks, 6 Va, L, Eeg, 124, If a note is made payable to several persons, not partners, then the transfer can only be made by a joint endorsement of all of them. 27 Gratt. 093. A gift of a promissory note by transfer on separate paper, must be accompanied by endorsement or delivery, 68 111. 25 ; Merwin E. & E. PI. 100, note. An action of gcnei-al indebetatus assumpsit lies to re- cover on a promissory note, and plaintiff may give the note in evidence to sustain his action, 93 Ya. 686, A note or written simple contract may be declared on, according to its legal effect and operation, ll has been de- cided that a note made to Eichardson, Metcalf & Co. might miffht be declared on in the name of the ^[edway Cotton 194 Legal Appiorisms. Manufactory, on proof that such name was used by that cor- poration. Medway Cotton Manufactory v. Adams, 10 Mass. 360. In a comparatively recent English case, where a note was made payable to a married woman during coverture, which, of course, was a note in legal effect payable to the hus- band at his election, it was. declared on as a note by which the defendant promised to pay to John Fearn by the name of Mrs. Kachel Fearn, and by the said John Fearn indorsed to the plaintiff. Burrough v. Moss, 10 B. & C. 558. The same principles are adopted and affirmed in a recent case in this court. 21 Pick. 486 ; 61 Mass. 114. It is sufficient, if there is in fact a payee, who is so desig- nated that he can be ascertained. Story on Xotes, § 36. The illustrations of the manner in which this rule has been ap- plied are numerous; to bearer, the treasurer of, &c., or his successor in said office ; the trustees of a particular church ; to the order of J. Y. M. estate; to B's estate, or order, &c., &c. 150 Mass. 166, where sundry other instances are given. Proximate Cause. The proximate cause is the efficient cause, the one that necessarily sets the other causes in operation. 95 U. S. 117; 101 Va. 370. Proximate cause, as a legal term, does not necessarily im- ply closeness or nearness in point of time, or physical se- quence of events, but rather closeness or nearness in casual connection. A collision with a telephone pole near the center of a road caused the plaintiff's horse to run away and collide with a second pole near the side of the road, causing the in- jury complained of ; the first pole was the natural and proxi- mate cause of the accident. 100 Va. 45. See, also, 92 Va. 329. Legal Aphorisms. 195 Where the defendant had placed and kept illegally a sign which a gale blew down, cansing an injury, the court say: It is contended that the act of the defendant was a remote, and not a proximate cause of the injury. But it cannot be re- garded as less proximate than if the defendant had placed the sign there while the gale was blowing; for he kept it there till it was blown away. In this respect, it is like the case of Dickinson v. Boyle, IT Pick. 78. The defendant had wrong- fully placed a dam across a stream on the plaintiff's land, and allowed it to remain there ; and a freshet came and swept it away; and the defendant was held liable for the consequential damage. It is, also, in this respect, like the placing of a spout, by means of which the rain that subsequently falls is carried ujwn the plaintiff's land. The act of placing the spout does not alone cause the injury. The action of the water must in- tervene, and this may be* a considerable time afterwards. Yet the placing of the spout is regarded as the proximate cause. So the force of gravitation brings down a heavy substance ; yet a person w'ho carelessly places a heavy substance where this force will bring it upon another's head does the act which proximately causes the injury produced by it. The fact that a natural cause contributes to produce an injury, which could not have happened without the unlawful act of the defendant, does not make the act so remote as to excuse him. The case of Dickinson v. Boyle rests upon this principle. So Wood- w^ard V. Aborn, 35 Maine 271, where the defendant wrong- fully placed a deleterious substance near the plaintiff's well, and an extraordinary freshet caused it to spoil the water; also, Barnard v. Poor, 21 Pick. 378, where the plaintiff's property was consumed by a fire carelessly set by the defend- ant on an adjoining lot. lOG Mass. 4G0. 196 Legal Aphoeisms. Where a railroad train was unlawfully run over a hose extendino- across the railroad track and severed the hose, in consequence of which a building on fire which otherwise could have been saved, was destroyed, the severing of the hose was held to be the proximate cause of the destruction of the build- ing. 100 Mass. 277. And where a lighted squib was thrown in a market place, and afterwards thrown about by others in self-defence, and ultimately hurt the plaintiff, the injury was considered the immediate act of the first thrower. 8 T.R. 190. But when a train was wrongfully run past a station and a woman, encumbered with bundles which incapacitated her for self-protection, left her seat and took position on the moving train on the platform, from which she was thrown by a sud- den jerk of the car, held that the failure to halt the train was the remote, and not the proximate, cause of the accident. 92 Va. 327. That no responsibility for a wrong attaches wherever there intervenes the independent act of a third person be- tween defendant's negligence and the injury sustained, which affects and is the immediate cause of the injury, is a proposi- tion, without doubt, sustained by a convincing weight of authority. 93 Va. 57. Punctuation. See Statutes. Punctuation is a most fallible standard by which to inter- pret a writing; it may be resorted to when all other means fail ; but the court will first take the instrument by its four corners, in order to ascertain its true meaning ; if that is ajD- parent on judicially inspecting the whole, the punctuation will not be suffered to change it. Ewing v. Burnett, 11 Peters 54; 89 Fed. 480. Legal Aphokisms. 107 The court will not arrest the course of justice, merely be- cause pleaders are careless or unskilful in ])unctuation, or do not make such a collocation of words as renders their meaning perfectly perspicuous on the first reading. 10 Gray 476. Purchaser. No party can be permitted to purchase an interest where he has a duty to perform, which is inconsistent with the char- acter of purchaser. 99 Va. 339. As was said by ]^ord Elden in exparte James, S" Ves. 345 : This doctrine as to pur- chases by trustees, assignees, and persons having a confiden- tial character, rests much more upon general principle than upon the circumstances of any particular case. It rests upon this, that the purchase is not permitted in any case, however honest the circumstances; the general interest of justice re- quiring it to be destroyed in every instance, as no court is equal to the examination and ascertainment of the truth in much the greater number of cases. It has been established and classified as a ''third species of fraud, which may be presumed from the circumstances and condition of the parties contracting; and this goes further than the rule of law, which is, that fraud must be proved, not presumed. Chesterfield v. Janssen. 2 Ves. Sr. 155. Treating of this subject, Mr. Perry, in his work on Trusts, sec. 194 (5th ed. ), says: At law. fraud must be proved; but in equity there are certain rules prohibiting parties bearing certain relations to each other from contract- ing between themselves, and, if ])artics bearing such rclatimis enter into contracts with each other, courts of equity presume them to be fraudulent, and convert the fraudulent party into 198 Legal Aphorisms. a trustee. And herein courts of equity go further than courts of law, and presume fraud in cases where a court of law would require it to be proved; that is, if parties within the prohibited relations or conditions contract between them- selves, courts of equity will avoid the contract altogether, without proof, or they will throw upon the party standing in this position of trust, confidence, and influence, the burden of proving the entire fairness of the transaction. Thus, if a parent buys property of his child, guardian of his ward, a trustee of his cesti que trust, an attorney of his client, or an agent of his principal, equity will either avoid the contract altogether, without proof, or it will throw the burden of prov- ing the fairness of the transaction upon the purchaser ; and, if the proof fails, the contract will be avoided, or the purchase will be construed to be a trustee at the election of the other party. 99 Va. 339. Such a transaction is not void, but void- able only, and that only at the election of the injured party ; creditors do not in this respect stand in the shoes of the in- jured party; they can only avoid the transaction by proof that it was a fraud upon their rights. Idem. 340, 341. The purchaser of an equitable title takes it subject to all existing equities. Chief Justice Marshall, in Shines v. Craig, 7 Cr. 48. In Chew v. Barnett, 11 Serg. & E. 389, Chief Jus- tice Gibson said : When it is asserted that a purchaser for val- uable consideration takes the title free of every trust or equity of which he has no notice, it is intended of a title per- fect on its face ; for every purchaser of an imperfect title takes it with all its imperfection on its head. It is his own fault that he confides in a title which appears defective to his own eyes, and he does so at his peril. Now every equitable Legal Apjiokisms. 199 title is incomplete on its face. It is iiutliiiig mure than a title to i>o into ehancerv to have the legal estate conveyed, and therefore every purchaser of a mere equity takes it subject to everv clos that mav lie on it, ^vhether he has notice or not. But the purchase of a legal title takes it discharged of every trust or equity which does not appear on the face of the con- veyance, and of which he has not had notice, either actual or constructive. 24 Gratt. 478 ; 95 Va. 303. Subrogation of Purchaser to Lien of Incumhrance Paid jjy Jlim. — (1) AYhere the purchaser does not assume the debt, rights and remedies of the parties. By written contract, which contains no reference to the discharge of the liens then resting on the land, A became the purchaser of a tract of land from B. A verbal agreement was then or afterwards made between the parties that A should apply so much of the pur- chase money as might be necessary to the payment of a ven- dor's lien then resting on the land. This verbal agreement did not in anv manner change or affect the rights of A, and, although his deed was not recorded until after a judgment had been gotten against his vendor and docketed, he was en- titled to be subrogated to the rights of the holder of the lien he had paid off, as against the judgment creditor — the court, in delivering its opinion, saying : ISubrogatiou, as a matter of right, independently of contract, takes place for the benefit of a purchaser, who has extinguished an incumbrance w\^i\ the estate which he has purchased. Armentrout v. Gibbons, 30 Gratt. 632. It will be applied whenever the person claim- ing its benefit has been compelled to pay the debt of a third person in order to protect his own rights or save his own prop- erty. Cole V. :\[alcolm. 00 X. Y. 303 ; McClaskey v. O'Brien, 200 Legal Aphorisms, 16 W. Va. 701. A sale ordinarily implies that the vendee shall have a clear and nnencnmbered title ; and, nnless it is otherwise agreed, a mortgage, jndgment or other incumbrance should be discharged bj the vendor. In such case the vendor is primarily liable for the incumbrance; and if he fails to discharge it, and the vendee is compelled to satisfy in order to protect the property, he will be subrogated to the incum- brance so paid off by him. The rule is stated and illustrated by an application to the facts in the case of Gatewood v. Gate- wood. 75 Va. 407, thus: Where the party making the pay- ment occupies the position of surety for the debt, or is in some way personally bound for its payment, such person may in equity require an assigimient, or transfer, not only of the mortgage itself, but of all the securities held by the creditor for his protection and indemnity; and although no such assignment or transfer is actually made, a court of equity will treat it as done. McXeil v. ^Miller (W. Va.), 2 S. E. 335, 337. (2) Rights and remedies of the parties when purchaser retains a part of the purchase money to pay off an incum- brance 13 Gratt. 195 ; 30 Gratt. 173 ; 77 Ya. 467. (3) Rights and remedies of the parties when purchaser assumes payment of an incumbrance. Keller v. Ashford. 13rf U. S. 610, Law Ed. 667 ; 33 Gratt. 582 ; 06 Va. 608 ; 04 Va. 236; 77 Va. 462; 21 Gratt. 06; of a judgment, 75 Va. 758; of a vendor's lien, 98 Va. 530. Where purchaser does not execute the deed, and does not pay, the contract on his part is subject to the limitations applicable to simple contracts — to wit: three years. 101 Va. 658. The plea of usury cannot be sustained in favor of a pur- chaser who assumes or who docs not assume an incumbrance. Legal Aphorisms. 201 4 Leigh 478, 41H, 493; 21 Gratt. 344; 1)U Vu. 140; 03 Va. 408 ; DcWolf V. Johnson, 10 Wh(>at. 307. Receipts. See Payment, Rent. When a receipt is given for a payment, the general opin- ion is that the payment may l)e proved as well by parol evi- dence of the fact as by the production and proof of the receipt, though the case of Hamlin's Adm'r v. Atkinson, 6 Eand. 574, has thrown some doubt on that question in this State. 7 Gratt. 393. If a witness speaks positively as to the date and amount of a payment, and the jury believe him, such evidence cannot be considered inferior to the receipt. In one aspect, it is superior. For the receipt, when produced, is but a prima facie acknowledgment that the money has been paid ; and the circumstances under which it was obtained may be proved by a witness who was present at the time of giving it. It may be proved that the receipt was fraudulently obtained ; and then the receipt will amount to nothing, and the cause will rest on the parol evidence. Skaife v. Johnson, 3 Barn. & Cress. 424 ; 10 E. C. L. Kep. 137 ; 1 Rob. (old) Pr. 305. In Fuller v. Crittenden (9 Com. R. 401) several of the cases on this sub- ject were reviewed, and the result declared to be. that such circumstances as would lead a court of equity to set aside a contract (e. g. fraud, mistake, or surprise) may be shown at law, to destroy the effect of a receipt. But if a receipt in full is given with a knowledge of all the circumstances, and if there is no mistake or surprise on one side, or fraud or imjx)- sition, it will be effectual to defeat a further claim. Cowen c^- Hill's notes to Phil. Ev. 489. Rodemeir v. Brown, 109 111. S. C. ; Gl x\m. St. R. 182 ; 33 K E. R. 1035. 202 Legal Aphorisms. Receivees. A receiver, whether general or special, is generally recog- nized as an officer of the court. He is frequently spoken of as "the hand of the court," and the expression aptly designates his functions, as well as the relation he sustains to the court. The property and money in his hands are in the possession and under the control of the court, and cannot be molested ; or in any way interfered with^ except with its consent, by any other tribunal. As was said by the Supreme Court of the United States in Booth v. Clark, 17 How. 331, the receiver is but the crea- ture of the court ; he has no powers except what are con- ferred upon him by the order of his appointment, and the course and practice of the court. He cannot even institute or defend actions except by authority. Wilson v. Simpson, 4 How. 709. In Beverly v. Brooke, 4 Gratt. 187, Judge Baldwin said: A receiver is the officer and representative of the court, subject to its orders, accountable in such manner and to such persons as the court may direct, and having, in his character of receiver, no personal interest but that arising out of his responsibility for the correct and faithful discharge of his duties. See, also, 2 Davis C. Pleas, 1715-10, 1143; Goss V. Southall, rec'r, 23 Gratt. 825. 'Nor are the powers of the receiver at all varied or in- creased by the fact that he is the obligee in the bond. The legal title and right of action are thereby vested in him ; but he cannot sue except by the direction of the court which ap- pointed him, and whose agent he is. He may at any time be superseded and another appointed in his place to collect the money. Clarkson v. Doddridge, 14 Gratt. 42. * * * In Legal Aphorisms. 203 all judicial sales the court is regarded as the vendor and con- tracting party, on the one hand, and the purchaser on the other. If the bond is payable to a commissioner or receiver, it is only so from the necessity of the case, because the court can act only through the instrumentality of its officers and agents, and because there must be some one who, in behalf of the courts, may, if need be, bring the action at law. The fact is, the entire authority of the receiver is limited to the single duty of collecting and paying over the money, and all who deal with him must be held to understand the precise nature and extent of his powers. 33 Gratt. 711. The utmost effect of his appointment is to put the prop- erty from that time, into his custody as an officer of the court, for the benefit of the party ultimately proved to be entitled, but not to change the title or even the right of possession in the property. Union Nat. Bank v. Bank, &c. 136 U. S. 236. The general rule is that a receiver, who is a mere minis- terial officer of the court by which he is appointed, must have its consent and authority, either general or special, as a con- dition precedent to the institution of a suit or other legal pro- ceeding. 33 Gratt. 709 ; 79 Va. 331 ; Smith on Rec'rs, sec. 69 ; 97 Va. 547. And, in 79 Va. 331, it is said : The receiver is but the creature of the court ; he has no powers except what are conferred upon him by the order of his appointment, and the course and practice of the court. He cannot even institute or defend actions except by authority. 33 Gratt, 710, and cases cited. And where he is a mere officer of the court, hav- ing no sort of personal interest in the subject matter, he is not a necessary party to any litigation or proceeding involv- ing the rights to the subject matter. 33 Gratt. 711. 204 Legal Aphoeisms. Equity must have jurisdiction independent of the ap- pointment of a receiver. 55 S. E. R. 669, and cases cited. Where it is desirable to make the appointment general for all purposes of the suit, whatever developments may occur, the following language is suggested for the appoint- ing decree in the decree by Professor Lile, 5 Va. L. Reg. 476 : "A. B., who is hereby appointed receiver for all the pur- poses of this cause, both in its present and any future aspect it may assume, is directed," etc. And for the condition of the bond "To faithfully account for all property and funds that may come into his hands in this cause, and faithfully to discharge every duty required of him as such receiver by any order entered or to be entered herein." Form of a decree appointing a receiver to collect debts. T5 Va. 445. Record. The usual mode of proving the record of another court, is by the production of a certified copy. But the copy is not produced in such cases, because it is better evidence than the original. It is received only on the ground of convenience, as a substitute for the original record. The reception of a copy avoids the inconvenience of removing the original record from place to j^lace; and as one court will not take judicial notice of the records of another, the certificate supplies the necessary authentication. But the original, if properly au- thenticated, is equally admissible, and, is, in its nature, the highest evidence. Gray v. Davis, 27 Conn. R. 447 ; 19 Gratt. 18. And it seems that the admission or confession of the party will not excuse the omission to produce the record it- self, or an authenticated copy of it. G Johns. 9 ; and in any Legal Aphorisms. 205 ease in which a record is relied on as evidence, it must con- clude both parties to the case or neither. 12 Gratt. 319. Eecord as evidence. See Evidence. Recoupment. The chief points of difference, says Prof. Lile, between recoupment and set-off are shown in the parallel columns following : SET-OFF. COMMOX-LAW EECOUPMENT. 1. Arises out of contract sued on. i. Arises out of some transaction dehors the transaction sued on. 2. Amount need not be liquidated. 2. The demand must be liquidated. 3. May only repel plaintiff's claim 3. May not only repel plaintiff's (in whole or in part) — no re- claim, but (in Virginia) judg- covery over. ment for the excess may be re- covered over against the plain- tiff. V. C 3304. 4. May be shown under the gen- 4. Must be specially pleaded, or eral iosue. account thereof filed with the plea. V. C. 3298. 5. Will not avail when plaintiff's 5. May be used, though plaintiff's action is on a sealed instru- action is on a sealed instru- ment, ment. Statutoey Recoupmext. AVith these may be contrasted Statutory Recoupment under V. C. 3299 — often miscalled "plea in the nature of a plea of set-off." This plea bears no resemblance whatever to a set-off, but is a mere enlarijement of the common law right of recoupment : 1. Arises out of the contract sued on, never out of a trans- action de liors the contract, as in the case of set-off. 91 Va. 272. 2. Amount need not be liquidated. 3. May not only repel plaintiff's claim (as in common 206 Legal Aphorisms. law recoupment), but defendant may have recovery over against plaintiff for the excess. This is one of the chief pur- poses and advantages of the statutory proceeding. 4. Must be specially pleaded (the statute so declares, V. C. 3299), and cannot be availed of under the general issue. 5. May be used, though plaintiff's action is on a sealed in- strument. This is another advantage of the statutory recoup- ment over recoupment at common law. 6. May be based on equitable, (as distinguished from legal) grounds. As between common law I'ecoupment and statutory re- coupment, the defendant may still use either at his option, unless (1) he desires a recovery over, or (2) the action is on a sealed instrument. The statute has in nowise abridged the scope of the general issue or the extent of common law re- coupment, and the latter may still be set up under the general issue, and with like affect, as at common law. 93 Va. 678. The object of the statute was to enlarge the scope of the com- mon law recoupment in the two particulars already men- tioned — namely, to permit a recovery over against the plain- tiff, and to allow recoupment against a sealed instrument. 7 Va. L. Reg. 332, note. The doctrine of recoupment does not rest on the nature of the right which a plaintiff has in the contract which he seeks to enforce, nor on the fact that his interest in it is the same at the time of the suit brought as when it was originally entered into. The essential elements on which its application depends are two only. The first is that the damages which the defendant seeks to set off shall have arisen from the same sub- ject matter, or sprung out of the same contract or transaction Legal Ai'iiokisms. 207 as that on which the plaintiff relies to maintain his action. The other is, that the claim for damages shall be against the plaintiff, so that their allowance bv way of set-off or defence to the contract declared on, shall operate to avoid circuity of action, and as a substitute for a distinct action against the plaintiff to recover the same damages as those relied on to defeat the action. Still v. Hall, 20 Wend. 51 ; Batterman v. Pierce, 8 Hill 171 ; Harrington v. Stratton, 22 Pick. 510; 91 Mass. 42. The fact that the plaintiff sues in tort does not complicate the matter. It is not more difficult, or less desirable, in such an action, to have the whole matter adjusted in a single suit. This method of avoiding a cross action can work no injustice, nor abridge the legal rights of the parties. ISTor does the plaintiff's position entitle him to any special favor as against the defendant, since the defence which he endeavors to pre- clude the defendant from making is founded on his own alleged fraud. It it obviously right, that, if the defendant has been damaged by the plaintiff's wrong, the damages should be recouped. This view is not only reasonable, but it is sustained bv the authorities. The doctrine of recoupment is not novel, but is as ancient as the common law, and was in early times applied to actions founded in tort ; as, if one who is entitled to rent disseise the tenant, in an assise brought by the disseisee, he may recoup the rent in damages. A disseisor may also recoup all in damages that he has expended upon repairing build- ings ; also rent service incurred during the disseisin. Also, a guardian in socage in his own wrong, shall have reasonable allowance. Coulter's Case, 5 Co. 30. An executor in his o%vu 208 Legal Aphoeisms, wrong shall not recoup his own debt, lb. But in an action of trover bv the administrator against him he may recoup pay- ments of debts made by him, Whitehall v. Squire, Carth, 104; ]\Iouutford v. Gibson, 4 East. 441. See, also, Icely v. Grew, 6 :N"ev. & Man. 467, 469, n ; 105 Mass. 20. If there was a partial failure of consideration, or decep- tion in the quality or value of it, or a breach of warranty, the defendant niav avail himself of it, to reduce the damao-es to the worth of the chattels sold, and need not resort to an action for deceit, or upon the warranty. Chitty on Contr. 140 ; Ger- maine v. Burton, 3 Stark. R. 32 ; Barton v. East, 7 East. 480 ; Poulton V. Lattimore, 9 B. & C. 259 ; Bayley on Bills (2 Am. Ed.) 531 and cases cited. But he is not bound to do so. * * The value of the property to the defendant would have been the true rule of damaoes. 40 Mass. 286. See 1 Va. L. Reg. 541, note. When the plaintiff's demand is under seal, the defendant cannot rely on the common law counter claim in the nature of recoupment. 100 Va. 714. The common law recoupment differs from the statutory set-off in three important particulars. First, recoupment is confined to matters arising out of and connected with the transaction or contract upon which the suit was brought ; secondly, the damages need not be liquidated; and, thirdly, if the defendant's claim exceeds the plaintiff's demand, he cannot in the same action recover the balance. And it may be added that recoupment at common law is a defence prov- able under the general issue, whereas the statutory set-off can only be proved in Virginia when it is so described in the plea, or in an account filed therewith as to give the plaintiff notice Legal Aphorisms. 209 of its nature. Code Va., see. 3298 ; Balto, kc. R. Co. v. Jame- son, i;; \y. Va. 833; Sterling Organ ("o. v. House, 25 W. Va. G4, G7 (as to notice of recoupment accompanying the general issue) ; Britton v. Turner, (5 ^^. H. 481 (26 Am. Dec. 713) ; note to Van Epps v. Harrison, 40 Am. Dec. 322; 1 Va. L. Reg. 541. Refundhstg Boxd. For money to be paid at the death of the obligor. 31 Gratt. 536 ; 32 Gratt. 827 ; 75 Va. 200. Registey. It is the duty of the party to examine the records, say the authorities, and whether he does so or not, he will be affected Avith notice of every fact, the knowledge of which might there have been obtained. When a person cannot obtain a title but by a deed which leads to another fact, whether by description, recital or otherwise, he will be deemed cognizant of such fact, for it is crassa negligentia that he sought not after it. And for the same reason, if the purchaser has notice of a deed, he is presumed to have notice of the entire contents of the deed. 33 Gratt. 191. Mortgage or deed of trust securing future advances. Recordation of subsequent lien as notice. The majority of the authorities maintain, that registry of the subsequent lien is not notice to the first incumbrancer, but that he may con- tinue the advances until he receives actual notice. G Va. L. Reg. 632, note. Release. By one of two personal representations, see Executors and Administrators. 210 Legal Apiiokisms. Remedy. So much of the law as affects the rights and merit of the contract, all that relates ad litis decisionem is adopted from the foreign country ; so much of the law as affects the remedy only, all that relates ad litis ordinationem, is taken from the lex fori of that country where the action is brought. 1 Rob. Pr. 316. The form of action, the course of judicial proceed- ings, and the time when the action may be commenced, are regulated exclusively by the laws of the State wherein the action is brought. The time within which it must be brought is equally regulated by those laws. Idem. 326. Release. A release of a debt by an administrator or an executor without the concurrence of his co-administrator or co-executor is good, and the dissent of the other, forms no objection to its validity. Executors and administrators stand on the same ground. Murray v. Blatchford, 1 Wend. 583. But if the thing released be held by executors in their own personal right, and not as assets of the estate, it seems that one cannot release so as to bind his colleague. 4 Hill 503; Dayton's Surrogate, 69, 70; see, also, 2 Minor 242, 345. Remittance. The general rule of law is that the duty lies on the debtor to pay his debt to his creditor personally or to his authorized agent. The burden of proof to show a payment of a debt is not sustained therefore by proof that a letter, containing the requisite amount, directed to the creditor, was duly deposited in the post-office. The debtor must go further. He must also show that the creditor authorized this mode of remittance, either by express assent or direction, or a usage or course of Legal Aphorisms. 211 dealing from which such assent or direction may he fairly inferred. If this can be shown, then the transmission is at the risk of the creditor; otherwise it lies npon the debtcn-. Peake 67, 18G; Walter v. Ilaynes Ry Mood. 149; 2 Green. Ev., sec. 525 ; Wakefield v. Lithgow, 3 Mass. 249 ; 75 Mass. 407. Bnt an agent employed to collect a debt and remit the proceeds is bound only to use ordinary and reasonable skill and diligence, either in collecting the amount or in sending it to his principal, except so far as his discretion is limited by positive instructions. Kingston v. Kineaid, 1 Wash. C. C. 457; 6 Mete. 2G, 27; 99 Mass. 596. Rent. A compensation stipulated to be paid for the use of land and jx^rsonal })roperty together, is not a sum in gross, but rent issuing out of the land, l^ewton v. Wilson, 3 H. & M. 470 ; Michie v. Wood's Ex'r, 5 Rand. 571. The yearly value of the demised premises may be increased by the letting there- with articles of personal property ; but the rent is regarded as issuing out of the land alone. Allen v. Culver, 3 Denio. 295 ; 2 Rob. Pr. 94. But, though personalty, may be rented with land, yet the rent issues out of the land and not out of the personalty, so that if the personalty be lost without the fault of the landlord, or for a cause for which he is not re- sponsible, there seems to be no good reason why the tenant should not be bound for the whole rent, even though the loss may have occurred without his fault. All of the land out of Avhich alone the rent issues still remains in the possession of the tenant, and his obligation to pay the entire rent would seem to continue also. 18 Gratt. 170. 212 Legal Aphorisms. The acceptance by a landlord of a bond for rent is no ex- tinguishment of the rent, because the rent, issuing out of the realty, is a debt of as high a nature as a specialty claim. 1 Chitty PI. (7 Am. Ed.) 119; 4 Minor 148. Parol demise includes demise by writing not under seal as well as demise by word of mouth. 3 Rob. Pr. 375. Evidence, by receipt, of a subsequent quarter's rent, will be considered prima facie evidence of the payment for all former quarters ; though this may undoubtedly be contra- dicted by other evidence. 1 Pick. 337. Request. In many cases the law implies a request ; and, in such cases, the implication sustains the averment. Thus, where one is comjx'llcd to pay money for another as surety, indorser, or the like, the obligation to pay, entered into for the benefit and at the request of the principal, is in law a request to pay the debt. So, where two or more are severally subject to one common debt, and one pays the whole, and thereby relieves his co-surety, as well as himself; then, as to one-half, such surety pays for the use of the co-surety, who was equally liable ; and an equitable obligation therein arises, on the part of the co-surety, to pay an equal share of the common debt upon which equitable obligation the law implies a promise. Deering v. Winchelsea, 2 Bos. & Pul. 270 ; 56 Mass. 410. If a special request be unnecessarily stated, it need not be proved. 1 Chitty PI. (7 Am. Ed.) 364; see, also, 3 Rob. Pr. 602; 1 Gray 499. Res Adjudicata. When a court of competent jurisdictiou has given judg- ment, that the defendant go without day, and that judgment Legal Ai'Iiokisms. 213 remains unreversed, it is taken to have been rightly given, and the plaintiff cannot have a second action for the same cause. 7 Rob. Pr. 181 ; 79 Va. 33S'. Rescission. Form of decree rescinding. OS Va. 4S9. Res Ipsa Loquitur. 100 Va. 413 ; 43 W. Va. GGl, S. C. ; 39 L. R. A. 490, S. C.;28S. E. 735. Residence. This word is used in two senses: One, constructive, tech- nical, legal, and the other personal, actual habitation of indi- viduals. 3 N. II. 123; 43 Am. Dec. 602. Retraxit. A retraxit differs from a non-suit in that the one (the latter) is negative, and the other (the former) is positive. The non-snit is a mere dcfaidt and neglect of the plaintiff, and therefore he is allowed to begin his suit again, upon pay- ment of costs ; but a retraxit is an open and voluntary re- nunciation of his suit in court, and by lhis he forever loses his action. 25 Gratt. 390. An attorney at law has no authority to enter a retraxit in a suit (7 Gratt. 142) ; it can only be entered by the plain- tiff in person in open court. 27 Gratt. 257. Xeither will llic tive dollars be allowed in the case of a retraxit. There, it i.< true, ilic [ilaiiititV abandons his cause; but h(^ go(>s funlicr. and admits that be has no cause of action. This entitles the d<'fendant to a iiul^niciil, as beneficial to 214 Legal Aphorisms. him as if rendered on a general verdict in his favor. And as no damages are alloAved in the latter case, there is no reason for allowing them in the former. 6 liand. 675 ; 1 Rob. (old) Pr. 262. The usual and proper order, where there is a retraxit is : This day came the plaintiff in his proper person, and here in open court acknowledges that he cannot support his action, and voluntarily withdraws the same ; and renounces the cause thereof ; wherefore, on motion of the defendant by his attor- ney, it is considej-'ed by the court that the plaintiff take noth- ing by his bill, but for his false clamor be in mercy, etc., and that the defendant go thereof without day, and recover against the plaintiff his costs by him about his defence ex- pended. Rob. Forms, p. 96; 96 Va. 771. Right to Open and Conclude. According to the well settled English practice, the party who substantially asserts the affirmative of the issue has gene- rally the right to begin ; and if the record contains several issues, and the plaintiff holds the affirmative in any one of them he is entitled to begin. 1 Green. Ev. sec. 71. As was said by President Tucker in Steptoe v. Harvey, 7 Leigh 501, 544, "The rules as to the right of opening and concluding in the courts of England are substantially the rules which have been held to prevail M-ith us." And the two rules of English practice al)ove stated may, therefore, be regarded as settled rules of our practice also. These rules, as applicable to cases where the damages are liquidated, are thus well laid down by Archibald : * * * "The party who has added the similiter (supposing there to be but one issue) has a right to begin ; or. Legal Aphorisms. 215 if there be two or more issues, then, if the plaintiff have added the similiter in any one of them, he has a right to l)e- gin ; but if the defendant have added the similiter in all of them, he has the right to begin. Another test is: Suppose no evidence at all is given, who would be entitled to the verdict ? If the defendant, the plaintiff must begin ; and if the plain- tiff, the defendant must begin." In actions for unliquidated damages, in actions on contract, as well as of tort, the plaintiff has in all cases the right to begin. 9 Gratt. 18. See this case for rules and cases on the question of who is entitled to open and conclude. The plea of release and the plea of pa^anent are pleas in confession and avoidance. They put the onus prohandi upon the defendants, and they give him the right to ojxui and conclude (31 Gratt. 31S) ; but this is the case only where there is no additional plea to which the plaintiff has added the similiter. Eights. Setting up inconsistent rights or defences. See Estoppel. Sales. Sec Cliaiteh, Contracts. The essential elements which enter into and make up the contract of sale are, competent parties to enter into a contract, an agreement to sell, and the mutual assent of the parties to the subject matter of the sale and to the price to be paid there- for. 94 .Mass. 43. Any M'ords importing a bargain, whereby the owner of a chattel signities his willingness and consent to sell, and where- by another person shall signify lii> willingness and consent to buy it, tn prescnii tor w s])(ritird [irice, would be a sale and 216 Legal Aphorisms. transfer of the right to the chattel. 3 Johns. 174; 2 Rob. Pr. 496. And the general rule will not prevail, where by the terms of the agreement, the title is to vest immediately in the buyer, notwithstanding something remains to be done to the goods bv the seller after deliverv. Thus, in Riddle v. Varnum, 20 Pick. 28'0, it was held that the jury, where there was evidence of such intention, might infer a delivery to the buyer suffi- cient to vest the title, although something remained to be done by the seller ; while the general doctrine above stated, in cases where there is no evidence to complete the sale and pass the title, is fully affirmed. And, in Turley v. Bates, 2 H. & C, 200, it is said that the court must look to the intention as drawn from the terms of the contract, in order to determine whether title to the property immediately passed. Young v. Matthews, L. R., 2 C. P. 127; Story on Sales, sec. 298a; 111 Mass. 15. As to certainty required in designating quantity. See Contracts. Implied warranty on the sale of a chattel. 2 Va. L. Reg. 463. Sale of goods to which something remains to be done. 2 Va. L. Reg. 57. Conditional sales, risk of property, negotiable paper. 3 Va. L. Reg. 898. Inadequacy of consideration is always a material circum- stance to be considered, along with other circumstances exist- ing in a case, conducing to show that it would be inequitable to force the specific execution of a contract ; but where there are no such other circumstances, but the inadequacy of con- sideration is such as to shock the moral sense of mankind, it Legal Apjiokisms. 217 is in itself evidence of fraud and sufficient to prevent the execution of the contract. But here the inadequacy of the consideration * * * ^^ stands solitary and alone as the ground on which relief is claimed, from the obligation to per- form the contract. It is not pretended that any fiduciary rela- tion existed between the contracting parties at the time of the contract or at any other time ; it is not pretended that any fraud or influence, undue or (otherwise, was practiced by the vendee on the vendor to induce him to enter into the con- tract; it is not pretended that it was made under any mis- representation or mistake ; nor is it pretended that the ven- dor was not a man of perfectly sane mind, capable of making contracts and taking good care of his own interests. 21 Gratt. 81. There is a class of cases to which Pickard v. Sears (33 Eng. C. L. R. 115) belongs, in which it has been held that where a person entitled to personal property (which may pass by sale and delivery without writing) stands by and makes no objection to the sale of it to another, the fact may be left to the jury as evidence tending to show that he sanctioned the sale, and ceased to be the owner. 10 Gratt. ."iTl. Where No Place of Delivery is Specified. — In Lee Large V. Kickert, 5 Wend. 187, there was a Avrittcu contract to de- liver certain jiortablc articles to the })laintifl', but no place of delivery was specified. It was held that, by construction of law, the place of delivery was the residence of the plaintiff, and that evidence was not admissible to prove a eotemjwran- eous agreement fixing a different place of delivery. The Court said: The written contract of the parties, therefore, aecordinti; to the established rules of cunstnict idU, having set- 21S Legal Aphorisms. tied their rights and duties as to the place at which these arti- cles were to be delivered, it was inipro|5er to admit parol evi- dence of their declarations before or at the time of the giving of the receipt, to show that a different place had been agreed upon. The written contract was the only legal evidence as to the intentions of the parties up to the time it was executed. All previous arrangements were merged in that. A written contract cannot be varied by parol, and where the legal con- struction and cifect of an instrument are well settled, it is varying the instrument to show that the parties intended something else, as much as it would be to prove that the terms used were not in accordance with the previous agreement. 18 Gratt. 212. Efforts made after delivery to satisfy the purchaser. 70 K E. 429 ; 111 Mass. 364. Scire Facias. A scire facias seeks, not a new judgment, on which execu- tion is to issue, but an award of execution on the judgment already rendered. The execution issues on that judgment; and the award of it on the scire facias is but the authority to issue it. The judgment awarding it is but the authority to issue it. The judgment awarding it, after reciting the scire facias, which recites the original judgment, is "that A. B. (the creditor) have his execution against C. D. (the debtor) of the debt aforesaid, according to the force, form and effect of the said recovery. Tidd's Append. 338. The execution which issues is on the original judgment. It is to be accord- ing to the force, form and effect of the recovery— that is, the original judgment. 2 Gratt. 64. Legal Aphorisms. 219 Upon a scire facias to revive a suit against the personal I'cprcsentative, the scirr facias being returned cxeeuted and the personal representative failing to apjx^ar and show cause against the revival iherebv soui-ht, it was ordered that the suit stand and be revived against the personal representative, and be in all things in the same plight and condition as it was at the time of the death of his decedent. 10 Leigh 589. Seal. The defence that a bond was originally without considera- tion cannot be made to a specialty either at common law or under the statute (V. C. 3299). The seal imports a consider- ation, and a party cannot avoid his solemn obligation under seal upon the ground of a want of consideration. That in- quiry is precluded by the very nature of the instrument. A seal (as is -svell said in 1 Smith's L. C. 636) properly speak- ing renders a consideration superfluous, and binds the parties by force of the natural presumption that an instrument exe- cuted with so much deliberation and solemnity is founded upon some sufficient cause. Xor can such defence be made under the statute. 23 Gratt. 751. Sometimes we see it laid down that "the seal imports a consideration as much as if it was expressed in so many words." But the expression is thought not to be entirely accurate. Xo consideration being necessary to give validity to a deed, the law does not from the fact of execution, make anv inference one wav nr tli(> other in reference to a consideration. Walker v. Walker. 13 Tredell 335; 2 Rob. Pr. 31. Where it appears that the grantor intended to execute a deed and the seal is omitted by accident, mistake or inadver- 220 Legal Aphoeisms. teiice, a court of equity will regard the iustrumeut as a deed, and supply a seal. 1 Pom. Eq. Jur. sec. 383 ; 5 Johns. Chy. 224; Bernard's Tp. (Inhabitants) v. Stebbins, 109 U. S. 341; 27 L. Ed. 956; 24 S. Ca. 595; 13 S. E. (S. C.) 619, 624. Se Deeds. Sealed Instrument. 8ee Seal. Instruments under seal in Virginia. 1 Va. L. R. 622. Secueity foe Costs. Asking for without or before pleading does not present office judgment from becoming final. 50 S. E. (W. Va.) 746. West Virginia statute the same as the Virginia statute. — J. W. F. Seduction. JSTecessity for alleging that servant was a daughter. 5 Va. I. Reg. 51. Seaech Waeeant. Forms of declaration against a justice for maliciously is- suing a search warrant. G Munf. 27. Seizuee. By the seizure of a thing, said the Supreme Court (of the U. S.) in Pelham v. Rose, 9 Wall. 106, is meant the taking of a thing into possession, the manner of which, and whether actual or constructive, depending upon the nature of the thing seized. As applied to subjects capable of manual delivery, the term means capture, the physical taking into custody. 28 Gratt. 25. Legal Ai'uoiasMfJ. 221 Set-Ofp-s. See Damages, Becoupmenf. The course of decision in this State shows, that the statute of set-off has been lil)crall_v construed with a view to its obvious policy, which is to prevent nniltiplicitv of suits, and, as far as conveniently can be done, to effectuate in one action complete justice between the parties. IS Gratt. 720 ; 22 Gratt. 605. In Waterman on Set-Off, sec. 286, it is said: ''It is not necessary, in order to constitute a valid set-off, that a price should be agreed upon for an article sold and delivered. Therefore, a demand for the value of corn delivered mav be set-off, though the price of the corn had not been agreed on. The fact that the price had not been agreed on did not make it a case of unliquidated damages, within the sense in which these terms have been used in the English statutes. The defendant's demand was for monev, the value of the corn. For its recovery indebitatus assumpsit could be maintained, and this furnishes a test for its allowance as a set-off, citing authorities. 105 Va. 103. When the items of an account filed with a plea of pay- ment, or under a plea under which payment may be proved, as nil debet, as to give the plaintiff notice of their character, the defendant may show either payment or set-offs. If the nature of the item be distinctly stated the statute is complied with, though the 'item be wrongly denominated (103 Va. 286), and in such case, if the payment is proved, the statute of limitations could have no application. The payment only reduced the debt pro tanto. 5 Gratt. 475, Set-off of one judgment against another. 6 Va. L. Reg. 122 2-2 Legal Aphokisms. Equitable Set-Off. —Where the defendant sets up equit- able set-offs the plaintiff will be allowed to rebut the claim by any evidence which would be considered appropriate, had the defendant elected to proceed by bill in chancery. 2 Gratt. 132. What plea must show. 1 Va. L. Keg. 540. Equitable defence cannot be made by surety. 100 Va. 709 ; but see 8 Va. L. Eeg. 655. Shekiff. When liable for the tortious acts of his deputy. 1 Chitty PI. (7 Am. Ed.) 93 ; 17 Mass. 246. And trespass (or trespass on the case in Virginia) the proper action. Idem. Action lies for money collected by him without demand on him (5 Hill 398), and assumpsit is the proper form of action. 7 Hill 200, but see execution. Sidewalks. See Streets. Specific Performance. See Sales. The general rule is that there €an be no decree for specific performance, except between the parties themselves, or those claiming under them in privity of estate, or of representation, or of title; for a contract can only be enforced between the parties themselves, or their representatives in interest. 16 Gratt. 113. An assignee of the contract may maintain suit for specific performance. 8 Gush. 575; 154 Mass. 570; 23 K E. 779. , Parties. — The general doctrine, as supported by the weight of the American authorities, is that all persons who are interested in the enforcement of the contract must be, and all those directly and specifically interested in the subject LEciAr, Ai'iroRiSMs. 223 mattpr may be joined as parties to the suit for the specific performance. Pom. on Cont., sec. 483; J)T Va. 346. Although in some cases of contract for the purchase of real estate a party may have an adequate remedy at law, yet he is not bound to resort to it, but may, at his election, sue in equity. Where such a contract is unobjectionable, it is as much, of course, for a court of equity to decree a specific per- formance, as it is for a court of law to give damages for the breach of the contract. 9 Ves. R. 605; 13 Gratt. 411; 21 Gratt. 30, SO; 76 Va. 835. This rule is true only where the contract is in its nature and circumstances free from objec- tions. 31 Gratt. 388 ; Hoover v. Buck, 21 S. E. 475. Where the contract between the parties is different from the contract set up in the bill, and the true contract is proved by the defendant, the court ought generally not to dismiss the bill, but decree specific performance of the contract as proved, where it will produce neither hardship nor injustice to the parties ; and it seems this, too, against the claim of the plain- tiff to have his bill dismissed. 21 Gratt. 31. On a reference as to title in a suit for specific perform- ance the inquiry generally is, Whether the vendor can, not whether he could make a title at the time of entering into the agreement. If a good title can be shown at any time before the master's report, and even after the report, if the vendor can satisfy the court that he can make a good title by clearing up the objections reported by the master, the court will gen- erally make a decree in his favor. 13 Gratt. 213. There is a well settled distinction, in regard to the admis- sion of parol evidence, between seeking and resisting the specific performance of an agreement. A suit for specific 224 Legal Aphokisms. performance is addressed to the sound discretion of the court, upon all the circumstances. And any evidence which shows that it would be inequitable to enforce the agreement as stated in the bill, is admissible as matter of defence. 11 Gratt. 335. Specific performance of a contract for land within the jurisdiction of the court will not be decreed against an absent non-resident. 3 Cush, 578"; Dan. Ch. PL and Pr. (6' Am. Ed.) 629, note a. Suit for is transitory. 10 Va. L. Reg. 283 ; but, see 76 Va. 594. Stale Demands. Claims are considered as stale in equity, "only when gross laches is shown, and unexplained acquiescence in the opera- tion of an adverse right." 9 Otto. 201 ; 78 Va. 147. Stake Decisis. 9 Va. L. Peg. 574. Statutes. See Punctuation. In construing agreements as well as statutes, the court is bound to put on them that meaning which is the plain, clear and obvious result of the language used. 2 Pob. Pr. 44. When the Legislature has used words of a plain and positive import the courts cannot put upon them a construction which amounts to holding the Legislature does not mean what it has actually expressed. 28 Gratt. 401; 31 Gratt. 286; 6 Gratt. 507. Courts of law have, in many instances, introduced great refinements in the construction of statutes ; and in some in- stances, judges of great celebrity have deplored the first aber- ration from the plain and natural meaning of the words of Statutes. Spencer, C. J., in Troup v. Smith, 20 Johns. R. 44. The law does not favor a repeal by implication ; nor is it Legal Aphorisms. 22 a to he allowed uuloss the repugnancy be quite plain; it has ever been eunlined to repealing as little as possible of the pre- ceding statute. Although two acts are seemingly repugnant; yet they shall, if possible, have such construction that the latter may not be a repeal of the former by implication. 41 .Mass. 207. The Legislature has the power to make a retrospective en- actment changing the common law rules of evidence, prescrib- ing the modes of proof and directing who may and may not be competent witnesses. 80 Mass. 459. The rule is that no retroactive effect wall be given to a statute unless the intention of the law-makers to give it that effect is expressed in terms, or arises by necessary implication from the nature of its pi-ovisions, and this is specifically true when rights are thereby taken away or restricted in their as- sertion. 110 :Mass. 240. The rules of law are not generally subject to be altered by statutory provisions introduced for a different object. 2 Minor 124. It has been held in Kentucky that the Enolish decisions were not obligatory upon them in the construction of their own statutes, although similar in their provisions to the Eng- lish statutes. Hardin's R. 301; 1 Peters 363; 6 Leigh 00, 100. Roll of enrolled statute takes precedence over printed statute. 1 Va. L. Reg. G82. St.vtutes ok Fraud. lias no application to contracts fully executed by one or both parties. 13 Rick. 5. 226 Legal Aphorisms. Whether a contract drawn up and signed by an auctioneer making sale of real estate will bind the vendor. 21 Gratt. 681 ; 7 Va. L. Reg. 349; GO K E. 701. Memorandum. — jSi^othing more is necessary than this, that when one man makes an offer, there must be a fair under- standing on the jiart of each as to what is to be the purchase money, and how it is to be paid, as also a reasonable descrip- tion of the subject of the bargain. 32 Gratt. 647. See, also, 92 Va. 524. Streets. Streets include sidewalks. 07 Va. 724. A person upon a public street is neither a trespasser or a licensee. 100 Va. 356. Substitution, See Subrogation. Subrogation. See Surety. In enforcing the principle of substitution courts of equity look not to the form, but to the essence of the transaction. They consider the doctrine not as one founded in contract, but as the offspring of natural justice; and they administer it so as to attain real essential justice, without any regard to technicality. Hence a court of equity considers it a matter of no sort of consequence whether a man is bound for the debt of another jointly with that other, or separately from him. It is not necessary that one should be principal and the other surety in the same l)ond. The surety who gives a separate bond from the principal is regarded as standing as much in the relation of a surety as if the bond were joint. 4 Rand. 438; 2 Rob. (old) Pr. 137; 98' Va. 130. LecjaIv Ai'jiouisms. .227 A purchaser of land who pays a debt secured by lien on the land entitled to subrogation. Subrogation, as a matter of right, independently of contract, takes place for the benefit of a purchaser who has extinguished an incumbrance upon the estate which he has purchased. 30 Gratt. G32. It will be ap- plied whenever a person has been compelled to pay the debt of a third person in order to protect his own rights or save his own proixrty. GO X. Y. 363; IG W. Va. 791 (9.S^ Va. 130). A sale ordinarily implies that the vendee shall have a clear and unincumbered title; and unless it is otherwise agreed, a mortgage, judgment or other incumbrance should be discharged by the vendor. In such case the vendor is pri- marily liable for the incumbrance; and if he fails to dis- charge it, and the vendee is compelled to satisfy it in order to protect the property, he will be subrogated to the incum- brance so paid off by him. The rule is stated and illustrated by an application to the facts in the case of Gatewood v. Gate- wood, 75 Va. 407, thus : Where the party making the pay- ment occupies the position of surety for the debt, or is in some way personally bound for its payment, such person may in equity require an assignment or transfer, not only of the mortgage itself, but of all the securities held by the creditor for his protection and indemnity; although no such assign- ment or transfer is actually made, a court of equity will treat it as done. 2 S. E. (W. Va.) 337 ; 100 Va. 432 ; 04 Va. 752 : OG Va. 411. So, also, where the purchaser assumes the pay- ment of the secured debt. 33 Gratt. 582; OG Va. G08. Sunday. Dies non jiindicus. 12 C. C. A. 462, and note. 228- Legal Aphorisms. Where verdict, but no judgment on Sunday, 6 Va. L. Eeg. 691. Contracts made on Sunday arc not void at common law. Chitty on Cont. 374; Clark on Cont. 393; 9 Coke 66b; 3 Burr 1595, 1597; 6 Va. L. Eeg. 692. A note given on Sun- day is not void. 10 Mass. 312. SURCHAKOE AND FALSIFY, To surcharge is to show an item of proper credit omitted ; to falsify, to prove a wrongful charge is inserted. 4 Minor 1362, Surety. See Principal and Surety, Subrogation. There are three kinds of contract of suretyship, between which it seems important to distinguish: (1) Those in which there is an agreement to constitute, for a particular purpose, the relation of principal and surety, to which agreement the creditor thereby secured is a party; (2) Those in which there is a similar agreement, between the principal and surety only, to which the creditor is a stranger; and (3) Those in which, without any such contract of suretyship, there is a primary and secondary liability of two persons for one and the same debt, the debt being, as between the two, that of one of those persons only, and not equally of both, so that the other, if he should be compelled to pay it, would be entitled to reimburse- ment from the person by whom (as between the two) it ought to have been paid. 24 A. & E. Ency. of Law (1st Ed.) 717. The sureties right of action is on the implied assumpsit, or obligation which the law raises from the payment by one contractor of what his co-contractor should have paid, and therefore is governed by the terms which the law implies for Lix.Ai- .VriioKisM.s. 229 the sake of justice between the parties (t»0 Va. '2'^H), and the limitation is three years (99 Va. 2r)5) ; but if the excess paid is barred hy limitations the whole of that part ))aid not ex- ceeding hi> proportion niav ho recovered, when the principal has paid the residue within the statutory liiuit. 1 Rob. Pr. 492; y Elinor 191. And it has been held iu Massachusetts, in an action of assumpsit, that the surety is entitled to recover from his co-surety only an aliquot part without regard to the solvency of the other sureties. 36 Mass. 2(55. Where one of the two co-sureties buys in property of the J>rincipal, or acquires benefits or advantages, it is for the joint benefit of co-surety, at least to the extent of apportion- ment between them. T X. E. 578 ; 29 Gratt. 144. A surety's obligation is not conditional, but abscdute. The creditor may sue him alone, if the obligation is several, or joint and several, and may levy execution upon the property of the surety, instead of the principal, at his pleasure, and the surety has no equity against the creditor that would en- title him to a stav of execution. 25 Gratt. 5G3 ; Idem. 230. A surety is an insurer of the debt ; a guarantor is the in- surer of the solvency of the debtor. 52 P^nn. 525 ; 18 Gratt. 770. The surety is released in equity when by a legal and bind- ing contract with the principal, the time of payment is ex- tended, or there is a variation in contract. C Leigh 555; 10 Gratt. 253; 91 Va. 134; 98 Va. 35. Where the principal and surety are b(»und jointly and severally iu a bond, although th(>re is no exj)ress admission on the face of the instrument that all are priueii)als, yet the suretv cannot aver bv ideadino' in an action at law that he is a » t I ~ 230 Legal Apiioeisms. surety only, but where it appears on the face of the bond that the surety was surety only, the defence may be made at law. 10 Pet. 265 ; 7 Johns. 337. So, also, the defence may be made at law in action on unsealed instruments. 96 Va. 728 ; 93 Va. 510; 84 Va. 772. Contribution from co-surety. 6 Va. L. Reg. 838"; 4 Idem. 477. Surplusage. An allegation that is material can never be surplusage. Surplusage is something that is altogether foreign and inap- plicable, is that which does not help at all, as if you were to state that a man had a blue coat on and did a certain thing; but it is not surplusage to say that the defendant knocked the plaintiff down and also tore his clothes, and also put his eyes out. 3 Rob. Pr. 517. If the entire averment can be expunged without affecting the right to recover, it nee^d not be proved ; but if it cannot be thus stricken from the declaration without getting rid of a part essential to the cause of action, then, though the averment be more particular than it need have been, the whole must be proved, or the plaintiff cannot re- cover. 1 Saund. PI. and Ev. 416, 417; 7 Leigh 668; Hogg's PI. &r. 111. Surplusage will not vitiate the pleadings. 21 Gratt. 104; 3 Rob. Pr. 516. An averment of scienter is surplusage when the declara- tion is good without it. 32 Gratt. 519. Taxes. It has been held in a number of cases, that an officer fharffcd with the collection of monevs due individuals or the Lfxjai. Aphorisms. 231 gov( riimeiit, ^vho i)nys the taxes or debt of another person, cnniidt maintain an aetion to recover the same in the absence (if a prior request, or subsequent promise. 27 Gratt. 748. But, see 1 11. & M. 453. Tenant by the Curtesy. See opinion of Anderson, J., in 27 Gratt. 602. Tender. In Jones v. Cliff, 1 C. & M. 539, it was said by Lord Lvndhiirst, a party can only be obliged to make a tender where by making it he could obtain possession of the goods. And Jones v. Barkley, 2 Doug. 684, shows that where a party is ready to do what is to be done by him, and the performance is prevented by the act of the other party, it is not necessary that a strict tender should be proved. And in Gilmore v. Holt, 4 Pick. 258, the Supreme Court of Massachusetts thus laid down the rule : If a person who is bound to pay money be prevented from making a tender by any contrivance or evasion of the other party, it will be equivalent to a tender or a sufficient excuse for uot making it. These cases proceed u]xin the general principle that he who prevents the perform- ance of an act, shall not be permitted to avail himself of the non-performance occasioned by his own conduct. 21 Gratt. 634. ■ Where money is paid into court cjencraUy the rule is, that payment into court admits \\w cause or causes of action stated in the declaration, to the amount paid in, but nothing more. Bevond that amount the defendant mav make his defence. 2 Wciid. 432. The money must accompany the plea of tender and be 232 Legal Aphorisms. paid into court, and if not so paid in the plaintiff should de- mur to the plea. 3 Call 247. Time. In contracts appointing some acts to be done on a given day, there is no inflexible rule that the party is to have until sun-down of the day, to perforin his contract. That time is allowed, when it appears from the circumstances of the case, to be most convenient to both parties ; as if a sum of money is to be paid, the rule is adopted to avoid the inconvenience of one party being bound to wait the whole day for the other. But even in that case, payment must be made in time to count the money before sun-down. So that if a very large sum were to be paid, the pa_)Tnent should be made early in the day. 5 Co. 114. The true rule is, that the stipulated act is to be per- formed at that period of the day, which may appear, from the circumstances of the case, to be most proper for attaining the object of the contract, as, in case of a contract to pay money upon the transfer of stock, the party must pay within the hours, when the transfer of the stock can be made, according to the rules of the institution, which can alone complete the transfer. 1 Esp. X. P. 160; 3 Kand. 555. "From" or "after" a given event, ''until." 6 Va. L. Reg. 576. Title. See Tcndor and Vendee. A title can only pass or be acquired by a grant, or deed, or devise, or descent, or by an adverse holding. He who enters under a parol gift, enters with the knowledge that such gift vests no title to real estate in hinh 10 Gratt. 315 ; 31 Gratt. 616. And it is said in 16 Gratt. 210, Wherever the act Legal Afmiokisms. 233 of limitations would be a bar to an action for property, it gives to the defendant such a title to the property as enables him to maintain his defence und(>r the general issue, and would even enable him to maintain his defence under the general issue, and woidd even enable him to maintain an action for the property. ] Rob. (new) Pr. 500, citing 3 II. ^ M. 57; 4 Id. 139; 4 Munf. 301 ; Id. 504; 3 Cr. 358; 11 Wheat. 371 ; IG Gratt. 240. All of these cases involved the title to personal projx^rty, but the same rule applies to real estate. 4 Gratt 1211; 27 Gratt 430; 28 Gratt 383; (i Va. L. Reg. 712; and in equity, 6 :\Iunf. 352, and Mr. M. P. Burks etc., see page 234. In ejectment the defence by the terms of the statute (V. C 2734) it providing that th(> defendant shall plead the general issue only; and he may give in evidence any matter which, if pleaded in the former writ of right, would bar the action of the plaintiff, and in the writ of right the plea of limitations created a bar. 14 Puffendorif Abr. 328; 1 Rob. (old) Pr. 464. And it should be borne in mind that it has been held by high authority' that where a seal to the deed of convevance is omitted bv mistake, accident or inadvertance, a court of equity will, as between the parties and their privies in estate, supply the omission of the seal and make that a deed which was intended to be a deed. 109 U. S. 349; 24 Vt. 181; 15 R. I. 195; 34 S. Ca. 410, S. C. ; 13 S. E. 624. No matter how destitute of title the landlord may be. or how clear the title of a stranger may be in the land, the tenant cannot deny the title of the former, nor affirm that of the latter, in his defence to the landlord's action for the land. The same principle' applies to the rtliition c>f vendor and ven- 234 Legal Aphorisms. dee. The latter is estopped from denying the title of the former in an action at law to recover possession of the snb- ject of the sale. Two persons may each have a right to re- cover possession of the same land. The lessor always has a right to recover it of his lessee, at the end of the term, even though the lessor has not a shadow of title. But that does not affect the right of the real owner to recover it. If the real owner recovers it of the lessee, before the lessor does, that re- covery, of course, discharges the lessee from the lessor's right of action. 23 Gratt. 360. The principle is, that to maintain ejectment or unlawful detainer of land, the plaintiff must have the legal title to the land. Where the relation of land- lord and tenant, or vendor and vendee exists between the parties, the defendant is estopped from denying the plaintiff's title, which stands in the stead of proof of such title, indeed conclusive proof of it. But when the lessor or vendor, after the lease or contract of sale, conveys his title to another, he loses the benefit of the estoppel, or, rather transfers it to his assignee. In the language of Lord Denman, in Downs v. Cooper, 42 E. C. L. 663, he is estopped by his conveyance from claiming the benefit of the estoppel arising from the lease or contract of sale. Idem. 363. It is well settled that in actions of tort against several, one of the defendants may be convicted by the jury, while others are acquitted. 26 Gratt 431; 91 Va. 560; 2 Tuck. Com 92. And Mr. M. P. Burks, in his abstract of Lectures on Conveyancing, page 1, says: Adverse possession for The statutory period confers title superior to any paper Lectures on Conveyancing, page 1, says: Adverse possession for the statutory period confers title superior to any paper LE(iAI. AlMlOKISMS. 235 title. It not only dciirivis I he former owner of his remedy, but passes his tillc 1^, m'stnros. looks or sicms, or who in any way countciiancos or approves the same, is in law doomed to be an aider and abettor, and liable as principal ; and proof that a person is present at the commis- sion of a trespass without disapprovinf; or o})posing it, is evidence from which, in connection with other circumstances, it is competent for the jury to infer that he assented thereto, lent to it his countenance and approval and was thereby aid- ing and abetting the same. 3 Greenl. Ev., sec. -il ; Foster 350; 1 Hale P. C. 438. On the other hand, it is to be borne in mind that mere presence at the commission of a trespass or other wrong-fnl act does not render a person liable as a par- ticipator therein. If he is only a spectator, innocent of any unlawful intent, and does not act to countenance or approve those who are actors, he is not to be held liable on the ground that he happened to be a looker on and did not use active en- deavors to prevent the commission of the unlawful act. 1 Hale P. C. 431); Koscoe Crim. Ev. (2d Ed.) 201 ; 83 Mass. 98. Trespass on the Case. It is not necessarv, to maintain an action on the" case, that there should be any moral turpitude in the act complained of. It lies, whenever a damaoe is occasionad bv a wrong done. It is founded upon the mere justice and conscience of the case, and is in the nature of a bill in equity. Bird v. Kandall, 3 Burr 1353; 24 Mass. 550. The plaintiff, in his declaration, states the facts out of which the legal obligation arises, the obligation itself, the breach of it, and the damage resulting from that breach. 1 Chittv PI. 155. The declaration in an action on the case 238 Legal Aphorisms. ought not ill general to state the injury to have been com- mitted vi et armis, nor should it conclude contra paccm ; in which respects it principally differs from the declaration in trespass. 1 Chitty PI. 166. When A. wrongfully takes the property of B. and sells it, B. may bring trespass (and, of course, case) trover, detinue or assumpsit for money had and received, against A. at his election ; but having elected one of these forms of action, and prosecuted it to judg-ment, he cannot then abandon it and bring another. 17 Gratt. 132. When the wrong-doer and the injured party both continue alive, the practice of waiving the tort and bringing assumpsit is beneficial to the defendant, because a jury might give in damages for a tort a much greater sum than could be allowed in the other form of action ; and the latter admits a set-off and deductions which could not be allowed in an action founded on the tort. 1 Taunt. 114; 3 Rob. Pr. 399. And by allowing case or assumpsit to be brought, accord- ing as the neglect of duty or the breach of promise is relied upon as the injury, a multitude of actions is avoided; and the plaintiff, according as the convenience of his case re- quires, frames his principal count in such a manner, as either to join a count in trover therewith, if he have another cause of action other than the action of assumpsit, or to join with the assumpsit the common counts, if he have another cause of action to which they are applicable. 1 Chitty PL 165; where other advantages of case over assumpsit are stated. Trover. To sustain the action of trover, the plaintiff" must have a general or special property in the subject of the action, and T>K(;.\i, AriioKiSMS. 239 a right of possession over it at the time of the convci'.sion. Saiiiul. on PI. 869; li> (iratt. KiO; 10 (Iratt. :i;U. The gist of the action is the convci'siini ; the statulc of limitation- be- gins to rnn against this action fioni the time of the act of con- version by the defendant. G Barb. 442 ; 1 Penrose k^ Watts 219; 1 Rob. Pr. 504. A conversion nuiv he proved in three ways — (1) By a tortions taking; (2) by any nse or appro- priation to the nse of the person in possession, indicating a claim of right in opposition to the rights of the owner; (3) by a refnsal to give np possession to the owner on demand. 1 Bailey 510; 3 Rob. Pr. 462. When there is proof of the first or second there is no occasion for proof of the third. In other words, demand and refusal being only evidence of conversion need not be shown when there is sufficient proof of actual con- version. Idem. 463 ; 1 Leigh 93 ; 26 W. Va. 720 ; nor where defendant came unlawfully into possession. 10 Wend. 389. The General Issue is Not Guilty. — Under this issue the defendant may introduce any evidence tending to rebut the proofs necessary to sustain plaintiff's action. Stephen's PI. (4 xVm. Ed.) 2 App. CXXXVIIL, but matters in confession and avoidance, as, for instance, a release (or a former recov- ery) should be pleaded specially (see 6 Rob. Pr. 599, notes) as well as the Statute of Limitations. Stephen's PI. iihi supra. The measure of damages is the full value of the property at the time of the conversion, and interest thereon from that time. 7 Cow. 300; 17 Pick. 1 : 21 Mass. 467. In an action of trover for the conversion of a chattel, the juiy nuiy give special damages beyond the original value of the chattel. 3 Burr 1363; 2 Black R. 902; 2 Johns. V\i\. 116; as where there is any uncertainty as to the tpuility or quantity of the 240 Legal Aphorisms. thing demanded, or there is any tort accompanying it that may enhance the damages above the real value of the thing. Barnes 281 and 284. For a general discussion of the subject of Trover, see 3 Rob. Pr. 441 ; 1 Chitty PL 1G7 ; 4 Minor 542. Tkustees and Beneficiaries. ]S'othing more should be required of a trustee than that he should act in good faith and with the same prudence and dis- cretion that a prudent man is accustomed to exercise in the management of his own affairs. 21 Graft. 200. Trustees not allowed to purchase the trust subject, says Lord Eldon in ex parte James, 8 Yes. 345 : This doctrine as to purchases by trustees, assignees and persons having a confi- dential character, rests much more upon general principle than upon the circumstances of any particular case. Tt rests upon this, that the purchase is not permitted on any case, however honest the circtimstances ; the general interests of justice requiring it to be destroyed in every instance, as no court is equal to the examination and ascertainment of the truth in much the greater number of cases. 95 Va. 598; 97 Ya. 234. When a court of equity has acquired jurisdiction over a trustee and the sul)ject of a trust, he is powerless to exer- cise his functions as trustee without the express order of the court allowing him to proceed. 89 Ya. 323; 95 Ya. 200; 91 Ya. 305 ; and it would seem, also, when the trustee had not been made a party. 6 Call 363. If a certificate of stock expressed in the name of ^'A. B., ti'ustee," is by him pledged as security for his own debt, the pledgee is by the term of the certificate put on inquiry as to Legal Ai'iiorisms. 241 the character and limitations of the trust and if he accepts the pledge without inquiry does so at his peril. 100 Mass. 382 ; but, see 15 Wall 165. A conveyance to one as trustee is sufficient to put one dealing- with the property on inquiry. 5 Otto. 571). It is a general rule that an action at law cannot be main- tained against a trustee to recover money due from him in that character. Purdue v. Price, 10 ^[. k W. 457. If, how- ever, the trustee has appropriated a certain sum as payable to the cestui que trust, as, for example, by the settlement of an account showing a balance due him, or otherwise admits that he holds it to be paid to the cestui que trust, or for his use, pn action at law for money had and received will lie, because the character of the relation between the parties in respect to the monev is chanoed. The trustee no longer holds the monev as trustee, properly so called, but he holds it as a receiver for the use of the cestui que trust. 19 Gratt. 65 ; 2 Rob. Pr. 453. Judicial sales, how made, when title held by trustee. See Judicial Sales. How to State Account of a Trustee in a Deed of Trust. — It is a general rule that a trustee shall have a reasonable allowance for his risk, trouble and expenses. 3 Call 538. And a usual allowance is five per cent, on the receipts. See 4 H. & 3^r. 415. But, in Beverleys v. :Miller, 6 Munf. 99, under the particular circumstances of the case, it was determined that no commissions ought to be allowed the trustee. It is also a general rule that a trustee shall pay interest on so much of the money received by him under the deed of trust, as is not paid by him in a reasomible time after collec- tion, to the i>ersons entitled to it. 3 Call 538. But in Bever- 242 Legal Apiioeisms. leys V. Miller, under the particular circumstances of the case, it was determined that no interest should be charged against the trustee, and that he should be allowed interest on the balance due him. 2 Eob. (old) Pr. 380. Teusts. I think, for simplicity's sake, we should divide trusts into two classes, calling one direct or express trusts (that is, trusts springing from the agreement of the parties), and the other constructive or implied trusts (that is, trusts created by equity law). Under the latter subdivision will fall all trusts that are called implied trusts, constructive trusts, trusts aris- ing from fraud or otherwise ; in short, all trusts that do not spring from the agTeement of the parties. Brannon, J., in Currence v. Ward, (W. Va.), 27 S. E. 330. Underbill says : A declared or express trust means a trust created by words, either expressly or impliedly evincing a direct intention to create a trust ; and a constructive trust is not created by any words either expressly or impliedly evinc- ing a direct intention to create a trust, but by the construction of equity in order to satisfy the demands of justice. See 27 A. & E. Ency. Law; 3 Hill Trustees, 55 ; 1 Perry Trusts, sec. 73, Idem. Unlawful Detainer, There is a material difference between an action of eject- ment and an action of forcible or unlawful entry. The title or right of possession is always involved in the trial of an action of ejectment. The plaintiff cannot recover without showing that he is entitled to the possession ; and the defend- ant, without having any right to the possession himself, may Legal Aphorisms. 243 generally prevent a recovery by the plaintiff, by showing an ontstandiiig right of possession in another. Tho remedy for a forcible or unlawful entry was designed to protect the actual possession, whether rightful or wrongful, against unlawful invasion, and to afford summary redress and restitution. The entry of the owner is unlawful if forcible, and the entry of any other person is unlawful, whether forcible or not. If the defendant enters unlawfully, the plaintiff is entitled to re- cover, without any regard to the question of his right of pos- session. His actual possession, of itself, gives him a right of possession against any person not having a right of entry. "^ * Any possession is a legal possession against a wrong-doer. 12 Gratt. 470. The principle is, that to maintain ejectment or unlaAvful detainer for land, the plaintiff must have the legal title to the possession of -the land. 23 Gratt. 3G3. And in an action of unlawful detainer the plaintiff must recover upon the strength of his title or right of possession. 27 Gratt. 606. And when a tenant is put in possession under a contract of purchase he cannot be ousted by unlawful detainer before his lawful possession is determined by demand of possession or otherwise. 18 Gratt. 505. Xo disabilities avail to prolong the time of brinffins the action. 4 !Minor 620. Value of Property. The value of property as the means of paying debts, is made up of several elements — to wit. : the nature, amount and certainty of the subject itself, and the time at which it may be made available. 14 Gratt. 55 ; see 99 Va. 332. Variance. See Surplusage. I understand a variance to be an erroneous description of the instrument referred to, so that it does not appear to be the 244 Legal Aphorisms. same when produced in evidence, either on over or at the trial. Marshall, C. J., 1 Brock 180. But a mere literal variance between a contract as set forth in pleading and the one produced in evidence is immaterial. 3 Rob. Pr. 560. While it is not necessary to prove that a note or bill payable at a particular place was not then and their paid, it is essen- tial that the place of payment fixed by the note should be set out in the declaration ; and if this is not done, and the admis- sion of the note in evidence is objected to, the court shomd exclude it on account of variance between the note offered in evidence and that described in the declaration. 27 W. Va. 436 ; Covington v. Comstock, 14 Pet. 43 ; Hogg s PI. & F. 94. There is no variance between a writ or summons against a party generally, i. c, in his individual name merely and a declaration or bill against him as administrator. See writ. Vendor and Vendee. The same rule applies between vendor and vendee as to denying vendor's title as apply between landlord and tenant. 23 Gratt. 360-1. The proper time for a purchaser to inquire into a title and satisfy himself about it, is while the contract of sale re- mains executory. A purchaser at a judicial sale ought to make such inquiry before the confirmation of the sale by the court, and a purchaser at a private sale, ought to make it bo- fore he receives possession of the property and a deed from the vendor. In neither case will the purchaser be compelled to accept a bad or a doubtful title, unless he has agreed to do so. But having accepted the title, and received the deed, he will generally have to look only to the covenants contained in Legal Aimiorisms. 245 the deed for his indeiiiiiity and jirotection against any defects which may Ijc in the title. 18 Gratt. G60. When and as soon as a valid contract is made for the sale of land, equity, which looks upon things agreed to be done as actually performed, considers and treats the vendor as a trus- tee for the purchaser of the estate sold, and the purchaser as a trustee of the purchase money for the vendor. The purchaser is deemed and treated as the equitable owner of the land ; and subject to the lien for the unpaid purchase money, the title being retained, the equitable estate of the purchaser is alien- able, devisable and descendible in like manner as real estate held by legal title. 75 Va. 346. That a promise to pay a debt due from the promisee, even where it has not been paid by him, is one upon which an action may be maintained and damages recovered to the amount of such debt, is held by many authorities. 119 ^Mass. 507. When the undertaking is to perform a collateral act, the party may perform it any time during his life, unless hast- ened by request. But, wherever the stipulation is to pay money even to a third person, and no time is specified, it obliges the party to pay immediately; and the failure to do so is a breach of his contract, for which an action will lie, and it is no answer to such action to say that the plaintiff has not been injured. It would be against all justice to permit the covenanter to say that his covenantee shall subject himself to the inconvenience and embarrassment of first paying the debt before the covenanter should be called on to pay. The latter suffers no prejudice in being required to pay the whole amount. As he failed to pay the original creditor, he should pay his covenanter. What the latter may do with the money 246 Legal Aphoeisms. does not concern him. The courts, therefore, hold that the covenanter need not show that he had paid the debt, or that he had been injured otherwise by the failure of the covenanter to comply with his engagement. All that is necessary for him to show in such case is, that the debt due by him to the third person was not paid at the appointed time ; or, if no time was specified, that it had not been paid at the commence- ment of the suit. And, upon establishing this fact, the coven- antee is entitled to a recovery of damages equal to the whole amount of the debt, citing authorities. 21 Gratt. 105. When vendee can and cannot defend against an action for the purchase money. 53 S. E. (W. Va.) 902. When purchaser assumes payment of a vendor's lien. 25 Gratt. 454; 9S Va. 530. Of a judgment, 75 Va. 758. When purchaser assumes payment of an incumbrance, 10 Gratt. 164; 33 Gratt. 582; 94 Va. 236; 96 Va. 608; 94 Va. 370; Idem. 377 ; 76 Va. 392 ; 85 Va.779 ; 97 Va. 462 ; 75 Va.773 ; 101 Va. 664. When purchaser retains part of the purchase money for the purpose of paying off an incumbrance. 13 Gratt. 195; 94 Va. 751; 2 S. E. 337. When purchaser buys subject to the lien of an incumbrance without assuming its payment. 94 Va. 751 ; 2 S. E. 337. See 3 Rob. Pr. 438. And purchaser cannot set up the defence of usury whether he as- sumes or does not assume payment of the incumbrance. 33 S. E. 283 ; 93 Va. 498 ; 21 W. Va. 113 ; 5 Leigh 478, 491, 493 ; 99 Va. 140 ; 10 Wheat. 367. The contract of the vendee is an implied one and the limitation against an action for the pur- chase money is three years. 101 Va. 664. Vendor^s Lien. Fully discussed and principles applicable thereto. 33 Gratt. 192 et seq. ; 22 Gratt. 163. When no conveyance the Legal Aphorisms. 247 law is as it was before the statute. 33 Gratt. 163 ; 22 Gratt. 163, 164. Proper decree enforcing a vendor's lien. 2 Va. L. Reg. 369. Void A^■u Voidable Acts. The distinction between void and voidable acts seems to be this : That everj act malum in se, or which is against pub- lic policy is to be held void in the strictest sense, a mere nul- lity; but if an act is prejudicial only to one individual, then it is to be considered as voidable only by such individual. 44 Mass. 448. Waiver. A waiver is the intentional relinquishment of a known right, and there must be both knowledge of the existence of a known right and an intention to relinquish it. Hoxie, Home Ins. Co., 32 Conn. 21 ; 78 Va. 7. Warranty. A warranty is an express or implied statement of some- thing which the party undertakes shall be part of a contract ; and though part of the contract, yet collateral to the express object of it. 15 Gratt. 584. But a warranty is a separate, in- dependent, collateral stipulation, on the part of the vendor, with the vendee, for which the sale is the consideration, for the existence or truth of some fact, relating to the thing sold. It is not strictly a condition, for it neither susjx>nds nor de- feats the completion of the sale, the vesting of the thing sold in the vendee, nor the right to the purchase money in the vendor. And, notwithstanding such warranty, or any breach of it, the vendee may hold the goods, and have remedy for his 248 Legal Aphoeisms. damages by action. 55 Mass. 273. Perhaps, as Lord Abinger observes, the use of the word warranty in many cases between vendor and vendee, may be unfortunate ; the question, as he remarks, is often simply this, "whether there has been a non- compliance with a contract which a party has engaged to fill." 4 M. & W. 405 ; 2 Rob. Pr. 425. If, upon a sale with a warranty, or if, by the special terms of the contract, the vendee is at liberty to return the article sold, an offer to return it is equivalent to an offer accepted by the vendor, and, in that case, the contract is rescinded and at an end, which is a sufficient defence to an action brought by the vendor for the purchase money, or to enable the vendee to maintain an action for money had and received, in case the purchase money has been paid. The consequences are the same where the sale is absolute, and the vendor afterwards consents, unconditionally, to take back the property ; because, in both, the contract is rescinded by the agreement of the parties, and the 'vendee is well entitled to retain the purchase money in the one case, or to recover it back in the other. But if the sale be absolute, and there be no subsequent agreement or consent of the vendor to take back the article, the contract remains open, and the vendee is put to his action upon the warranty, unless it be proved that the vendor knew of the un- soundness of the article, and the vendee tendered a return of it within a reasonable time. 12 Wheat. 192 ; 2 Rob. Pr. 465. Declaration by an administrator, — counts in action for breach of warranty in the sale of a horse. 1. That whereas, on the 20th day of , in the year , at P. &c., in consideration, that the said A. B., in his lifetime, at the special instance and request of the said Legal Aphorisms. 249 C. D., would buy of the said C. D., a certain gelding of him the said C. D., at and for a large price or sum of money — to wit : for the price of $ of lawful money, &c., to be paid by the said A. B., in his lifetime, for the same, to the said C. D., he the said C. D. then and there undertook and faithfully promised the said A. B., in his lifetime, that the said gelding was tame and gentle in harness, and was no more than seven years of age, the spring then next preceding; and the plain- tiff in fact says that he, the said A. B., in his lifetime, con- fiding in the said promise and undertaking of him, the said C D., so by him made as aforesaid, afterwards — ^to wit., on the day and year aforesaid, at the place aforesaid and within the jurisdiction aforesaid, at the special instance and request of him the said C. D. did buy of him, the said C. D., the said gelding at and for the price of $ ; and then and there paid him the said sum of money for the same. Yet the said C. D., not regarding his said promise and undertaking, so by him made as aforesaid, but contriving and fraudulently in- tending to injure the said A. B., in his lifetime, in this be- half, did not regard his said promise and undertaking, so by him made as aforesaid, but craftily and subtly deceived the said A. B., in his lifetime, in this: That the said gelding, at the time of making the said promise and undertaking of the said C. D., was not tame and gentle in harness, and was older than seven years the then last spring — to wit., was, and still is fractious, and unmanageable in harness, and was, the then last spring, ten years old, at least — to wit., at the place within the jurisdiction aforesaid, whereby the said gelding, then and there became, was and still is of no value. 2. And for that whereas also, afterwards — to wit, on the 250 Legal Aphorisms. same day and year aforesaid, at the place, &c., in considera- tion that the said A. B., in his lifetime, would buy of the said C. D. other a certain gelding, at and for a large price, or sum of money — to wit,, the price of $ of lawful money of the United States of America, to be paid by the said A. B., in his lifetime, for the same, to the said C. D., he the said C. D., then and there undertook, and faithfully promised the said A. B. that the said last mentioned gelding was no more than eight years old the then last spring, &c., (as in first count). 3. (The third count was for money paid, money lent, and money had and received, &c.) Nevertheless, the said C. D., his promises and assumptions aforesaid, in form aforesaid made, not in the least regarding, the said last mentioned sum of money (the said several sums of money in the several counts in this declaration set forth and every part thereof) (5 Munf. 196) to the said A. B., in his lifetime, or to the said plaintiff since his death, hath not paid (though often re- quested, &c., by the said A. B. in his lifetime, and the said plaintiff, since his death), but the same to the said A. B., in his lifetime, to pay, the said C. D., always refused, and the same to the said plaintiff, since his death hath hitherto wholly refused, and still doth refuse, to the plaintiff's damage of $ , and therefore he brings suit, etc. G Johns. K. 138. Another form in 4 Minor 1673. Wills. Probate Of. — One witness may be examined and probate continued to secure the attendance of the other witness. Witness. Form of Exception to witness for Incompetency. — In the Legal Aphorisms. 251 case of St at ham (S: als. v. Ferguson's Adm'r & Als. (25 Gratt. 28), when the plaintiff was introduced as a witness in the case below, and before her examination was. commenced, an exception was taken and written at the head of the deposition in these words: "Defendants, by counsel, except to the taking of the deiKDsition of , the plain- tiff in this cause, and to the reading of the same, on the ground that she is incompetent to testify on her own behalf (being a i)arty to the contract)"', the validity of which is in controversy in this suit. It does not appear from the report of the case whether she was cross-examined by the defendants or not. But even if she was, any inference from that fact to waive objection to her competency as a witness was conclu- sively repelled by the express exception to such competency wn-itten at the head of her deposition as aforesaid. 29 Gratt. 750. The effect of not examining a witness, and the right of counsel to comment thereon to the jury. U. S. v. Budd, 144 r. S. 1G5; Idem. 171; 16 S. E. R. 602; 134 Mass. 502 (brief of counsel). 32 Gratt. 649. (See argument of coun- sel). A trial, either in civil or criminal cases, the omitting to produce evidence in elucidation, which is in the power of the party, or within his peculiar knowledge, shall be holden to turn every doubt against him. 1 Stark. Ev. 34. Writ. Where a party is charged in a bill or declaratiou in the capacity in which he is liable, as executor, &:c., it is not ground of demurrer that the subpoena was issued to him gen- *Should be amendcJ so as to show why in the given case, the witness is incompetent. 252 Legal Aphorisms. erally, not stating the capacity in which he is sued. 3 Green Chy. 73; 1 Dan. Chy. (G Ain. Ed.) 441, note; G Moore G6 S. C; 3 B. & B. 4; 1 Chitty PL (Am. Ed.) 284. In the last mentioned case, Lord C. J. Dallas says: ''The only ob- ject of the process is to compel the party against whom it is issued to appear, and when he is in court, the plaintiff in his declaration discloses the form and cause of action for which he sues. On this ground, therefore, it appears to me there is no foundation for the present application." But in ISToy's Maxims, page 12, it is said: ''As if a man warned to answer a matter in a writ, there he shall not answer to any other matter than is contained in the writ, for that was the end of his coming. See Coke Lit. 1^ 3." Where an instrument is attested by a subscribing witness, the law requires him to be called to prove its execution ; the parties having agreed that he shall be their witness of the fact ; and the presumption being that he has a better knowl- edge than any other of the attending circumstances ; and the omission to call him cannot be supplied by proof of an acknowledg-ment or admission of the party against whom the instrument is adduced, or that the signature of the party is in his handwriting. 7 Gratt. 395. In the ordinary course of legal proceedings, instruments under seal, purporting to be executed in the presence of a witness, must be proved by the testimony of the subscribing witness, or his absence suffi- ciently accounted for. Where he is dead, or cannot be found, or is without the jurisdiction, or is otherwise incapable of being produced, the next best* secondary evidence is the proof *In secondary evidence there are no degrees — that is, no pre- cedence or superiority in point of admissibility.( i Phill. Ev. 368), unless, perhaps, in the case of records. Legal Aphorisms. 253 of his handwriting; and that, when proved, affords prima facie evidence of a due execution of the instrument, for it is presumed that he would not have subscribed his name to a false attestation. If upon due search and inquiry no one can be found who can prove his handwritinp;, there is no doubt that resort may be had to proof of the handwritinfj of the party who executed the instrument ; indeed such proof may always be produced as corroborative evidence of its due and valid execution, though it is not, except under the limitations above suggested, primary evidence. 5 Peters 344. But after the lajise of, say, twenty-six years, the fair presumption is that such evidence as is set out in the foregoing, has perished, if it ever existed ; and, if so, then the exclusion of other evi- dence, whether direct or circumstantial, to prove the execu- tion of the instrument, has, to my mind, no color of reason. Moncure, J., in 7 Gratt. 398. The plaintiff having proved the handwritino; of the witness, the defendant mav introduce the testimony of witnesses to prove that the name of the prin- cipal to the instrument is not in his handwriting. 31 Gratt. 323. It is an established rule, that where there are duplicate originals, all the originals must be accounted for, before secondary evidence can be given of any one of them. 1 Phil. Ev. 586. When a written contract is to be proved, not by itself, but by parol testimony, no vagiie, uncertain recollection concern- ing its stipulations ought to supply the place of the written instrument itself. The substance of the agreement ought to be proved satisfactorily; and if that cannot be done, the party is in the condition of every other suitor in court, who makes a claim which he cannot supjwrt. 1 Peters GOO. 254 Legal Aphorisms. In practice, when there is no ground of suspicion that the paper is intentionally suppressed, not any discernible motive for deception, the courts are extremely liberal in regard to secondary evidence. The rule must be so applied as to pro- mote the ends of justice and guard against fraud and impo- sition. If the circumstances justify a well-grounded belief that the original paper is kept back by design, no secondary evidence ought to be admitted; but where no such suspicion attaches, and the paper is of that description that no doubt can arise as to the proof of its contents, there can be no danger in admitting secondary evidence. This is the rule laid down in Cowen & Hill's Notes and approved by this court in Cor- bett V. Xutt. 18 Gratt. 624-635 ; 31 Gratt. 321. Where Interpretation May Be Left to the Jury. — It is certainly true, as a general rule, that the interpretation ot written instruments properly belongs to the court and not to the jury. But there certainly are cases, in which, from the different senses of the words used, or their obscure and inde- terminate reference to unexplained circumstances, the true interpretation of the language may be left to the consideration of the jury for the purpose of carrying into eifeet the real intention of the parties. 14 Peters 493. But bear in mind that interpretation is the applying the correct significance to the words used and differs from construction which means the ascertaining of intention of the parties, gathered from the terms of the writing after ascertaining the meaning in which the words were used. Where the true import and meaning of a written instru- ment is doubtful, and the intention of the parties cannot be determined from its language, the right doctrine is, tliat it Legal Aphorisms. 255 shall be construed most strongly against the person using the doubtful language, and in favor of him who has been misled and advanced his money upon it. 12 East. 227; 2 How. 426, 450; 6 Bing. 244; 4 Hill 200; Story on Con't, sees. 258, 2G0, 261; 63 Mass. 56. In the absence of fraud, accident or mistake, a contempor- aneous agreement not embodied in the written contract cannot be added to its terms, but it seems that a written contract, complete on its face, may be shown by a contemporaneous parol agreement to have been delivered on condition. 5 Va. L. Keg. 316. One losing a written instrument should immediately give notice of his loss to the public, in such manner as is most likely to prevent innocent parties from taking it. 13 E. C. L. 44. When, after such notice has been given, a person has taken paper from a stranger without making such inquiries as prudence would suggest to any one acquainted with the business of the world, should be made, the owner of the paper has recovered its value from him. Although the loss has not been duly advertised, yet if the paper was received under cir- cumstances inducing a belief that the receiver knew that the holder had become possessed of it dishonestly, the true owner recovered its value from the receiver. The owner's negligence wa.< deemed no excuse for the receiver's dishonesty. 13 E. C. L. 25 ; 2 Rob. Pr. 507. Finis. law library *^ ttntvt:iisity of California ^ .*^ j-^ A ■k.Trf-^TT^'r "W^C* UC SOUTHERN REGIONAL LIBRARY FACILITY AA 000 729 629 6 ■•t*-*-*-*-*-*-*-*-*^-*- \